Keneipp v. Mvm, Inc. et alMOTION for Partial Summary JudgmentN.D. Okla.October 18, 20161 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA DAVID L. KENEIPP, § § Plaintiff, § § v. § Case No.: 15-CV-565-JED-TLW § MVM, INC., § § Defendant. § PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT I. Introduction If David Keneipp had been judged on his ability and the quality of his work, he would still be serving as a Court Security Officer (“CSO”) guarding the federal judiciary of the Northern District of Oklahoma. Although he performed his job with distinction, he lost his job because of disability discrimination: a physician, who had never examined him, reviewed his medical records and perceived him as having an impairment, back pain. Incredibly, even though Defendant knew that this perception was false and that Keneipp was fully qualified and able to work as a CSO, it nonetheless terminated Keneipp based upon the erroneous medical disqualification. Plaintiff seeks summary judgment on the following discrete issues of his affirmative case: that he was qualified to work as a CSO; that he was regarded as having an impairment, sciatica/back pain; and that he was terminated because he was regarded as having an impairment. Plaintiff further seeks summary judgment on Defendant’s affirmative defenses of business necessity and failure to mitigate. Finally, if the Court grants summary judgment on the elements of Plaintiff’s affirmative case and Defendant’s affirmative defense of business necessity, partial summary judgment is appropriate as to Defendant’s liability for violating the ADA. Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 1 of 20 2 II. Table of Contents I. Introduction ..................................................................................................................................1 II. Table of Contents ........................................................................................................................2 III. List of Exhibits ...........................................................................................................................2 IV. Table of Authorities ...................................................................................................................3 V. Factual Background ....................................................................................................................4 VI. Legal Standard for Summary Judgment ....................................................................................7 VII. Plaintiff’s Affirmative Case .....................................................................................................7 A. The Elements of Plaintiff’s Case .............................................................................................7 B. Plaintiff Was Regarded as Having a Disability .......................................................................8 C. Plaintiff is a Qualified Individual ..........................................................................................11 D. Defendant Terminated Plaintiff Because He Was Regarded As Having a Disability ...........12 VIII. Defendant’s Affirmative Defenses ........................................................................................14 A. Defendant’s Business Necessity Defense Has No Basis in Law or Fact ..............................14 B. Defendant Has No Evidence of Failure to Mitigate ..............................................................17 IX. Conclusion ...............................................................................................................................19 III. List of Exhibits Exhibit 1: Deposition of Christopher McHale, Corporate Representative for MVM, Inc., Vol. I Exhibit 2: Deposition of Christopher McHale, Corporate Representative for MVM, Inc., Vol. II Exhibit 3: October 2, 2014 Termination Letter and Enclosures Exhibit 4: Form 229 Results of Plaintiff’s Last Physical Exhibit 5: Fitness for Duty Letter from Dr. Boxell Exhibit 6: Fitness for Duty Letter from Dr. Good Exhibit 7: Deposition of Veronica Naman Exhibit 8: October 1, 2014 Disqualification Letter Exhibit 9: Deposition of Philip Cornelious Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 2 of 20 3 Exhibit 10: Deposition of Barbara Hayes Exhibit 11: August 23, 2014 Letter from Keneipp to MVM Exhibit 12: October 1, 2014 email from Veronica Naman Exhibit 13: Deposition Notice to MVM and List of Rule 30(b)(6) Topics IV. Table of Authorities Cases Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88 (2nd Cir. 2003) .............................16 E.E.O.C. v. Beverage Distributors Co., LLC, Civ. No. 11-cv-02557, 2013 WL 6458735 (D. Colo. Dec. 9, 2013) ..................................................................................................................................18 E.E.O.C. v. Sandia Corp., 639 F.2d 600 (10th Cir. 1980) .............................................................18 Fraser v. Avaya, Inc., Civ. No. 10-cv-00800-RPM, 2013 WL 4757263 (D. Colo. 2013) ........................................................................................................................................................16 Fromm v. MVM, Inc., 371 Fed.Appx. 263 (3rd Cir. 2010) ......................................................10, 15 Gen. Steel Domestic Sales, LLC v. Chumley, No. 13-CV-00769-MSK-KMT, 2015 WL 3498780 (D. Colo. June 2, 2015) ..................................................................................................................19 Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 31 (1st Cir. 2002) ...................................10 Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000) .............................................8, 9, 16 Jones v. United Parcel Service, Inc., 502 F.3d 1176, 1183 (10th Cir. 2007) ..................................7 McDonald v. Holder, 2010 WL 4362821 (N.D. Oklahoma Oct. 26, 2010) ..................................14 Piquard v. City of East Peoria, 887 F.Supp. 1106, 1124 (C.D.Ill.1995) .........................................8 Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468 (5th Cir. 2006) .......................8, 9, 16 Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th Cir. 1990) ....................................................17 Tate v. Farmland Industries, Inc., 268 F.3d 989 (10th Cir. 2001) ..................................................7 Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 3 of 20 4 United States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir. 1979) .............................18 Wilkerson v. Shinseki, 606 F.3d 1256 (10th Cir. 2010) ...........................................................14, 15 Statutes and Regulations 42 U.S.C. § 12102 ........................................................................................................................7, 8 42 U.S.C. § 12112 ..................................................................................................................8, 9, 15 42 U.S.C. § 12113 ..........................................................................................................................14 29 C.F.R. § 1630.15 .......................................................................................................................14 V. Factual Background The facts of this case are straightforward and almost entirely uncontested. Mr. Keneipp was employed by the defendant as a Court Security Officer (“CSO”). Ex. 1, 19:16-211. There was never any issue whatsoever with Plaintiff’s conduct or work performance. Ex. 1, 20:5-21:3. Indeed, the defendant has repeatedly admitted that Mr. Keneipp was fully qualified and able to perform the job at all times through his date of termination. Ex. 1, 15:24-16:21, 21:18-22:4, 39:7- 10. Mr. Keneipp was terminated because a physician, designated by the defendant to review Mr. Keneipp’s medical qualifications, believed him to have serious back pain/sciatica and disqualified him from working as a CSO on that basis. Ex. 2, 22:4-12; Ex. 3. This determination was in error, since every physician who had actually examined Mr. Keneipp had found him to be fit for duty. Exs. 4, 5, 6. Though the reviewing physician purported to rely on statements made by examining physicians as the basis for the disqualification, no examining physician ever concluded, as the reviewing physician stated, that Mr. Keneipp’s back “precludes his ability to run, 1 References to depositions in this motion use the form Page:Line-Page:Line or Page:Line-Line. Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 4 of 20 5 and calls into serious question his ability to defend himself against attack, physically control violent, irrational individuals or crowds, or remove individuals from danger.” Ex. 3. In other words, the reviewing physician’s perception regarding Mr. Keneipp’s back was in error and not supported by any examining physician or by MVM’s experience as Mr. Keneipp’s employer. Indeed, Mr. Keneipp’s most recent physical had confirmed that he no longer had back pain or trouble, and Mr. Keneipp had previously provided a letter from a back specialist confirming that his sciatica had been corrected by surgery and that he was fully able to do his job. Ex. 4, p. 6; Ex. 5. When Defendant received the reviewing physician’s disqualification of Mr. Keneipp from the United States Marshals Service (“USMS”), it did nothing to review the decision for fairness, accuracy or legality: Ex. 1. Christopher McHale - Vol. I, (Pages 85:13 to 86:11) 13 Q. I'm just asking as a factual matter. MVM never 14 reviewed in any way USMS's perception of his fitness 15 for its, A, fairness; right? 16 A. Okay. 17 MR. RECTOR: Objection to the form of the 18 question. 19 Q. (By Mr. Griffin) Second, MVM did not review the 20 USMS's perception as to his abilities -- 21 MR. RECTOR: Object -- 22 Q. (By Mr. Griffin) -- right? 23 MR. RECTOR: Objection to the form of the 24 question. 25 A. Correct. 1 Q. (By Mr. Griffin) And did not review it with 2 respect to its compliance with the Americans with 3 Disabilities Act either -- 4 MR. RECTOR: Same -- 5 Q. (By Mr. Griffin) -- did it? 6 MR. RECTOR: Same objection. 7 A. Correct. Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 5 of 20 6 Defendant simply sent Mr. Keneipp a termination letter the very next day. Ex. 3, Ex. 7, 45:14- 46:15, Ex. 8. Although the disqualification letter asked Defendant to respond with any questions or concerns, Defendant did not do so. Ex. 1, 34:20-35:6, Ex. 7, 20:1-22:11, Ex. 8. Defendant ignored this request even though it was in the best position to provide input and correct mistakes, and all parties relied on it to do so. Ex. 9, 28:7-30:2, 38:1-23, Ex. 10, 25:13-26:3. Worse, Defendant rubber-stamped the termination even though, just weeks before, Mr. Keneipp had written a letter objecting to the medical follow-up exams and specifically confirming that he no longer had sciatica and was fully able to do his job. Ex. 11. MVM admits that it does not disagree with anything Mr. Keneipp wrote. Ex. 1, 56:10-13. Yet Defendant never responded to this letter. Ex. 1, 52:10-53:1. Nor did Defendant review this letter, or refer to the conclusions of any of Mr. Keneipp’s examining physicians before terminating Mr. Keneipp: Ex. 2. McHale, Christopher - Vol. II, (Page 61:1 to 61:12) 1 Q. Did MVM understand from Mr. Keneipp's letter 2 that he was concerned about being fired? 3 A. I would -- yes. 4 Q. Okay. Did MVM understand that he did not want 5 to be fired? 6 A. Yes. 7 Q. Okay. And MVM got this letter less than two 8 months before he actually was fired; is that correct? 9 A. Correct. 10 Q. Okay. Did anyone at MVM ever refer back to 11 this letter before firing him? 12 A. Not that I'm aware of, no. See also Ex. 1, 63:19-66:8. To summarize, Defendant admits that Mr. Keneipp was highly qualified to do his job as CSO at all relevant times, including the day he was terminated. Ex. 1, 15:24-16:21, 21:18-22:4, 39:7-10. It is undisputed that he was regarded as having a disability—the documented perception was that “the CSO's back pain precludes his ability to run” and perform various other job functions. Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 6 of 20 7 Ex. 3. And it is undisputed that Defendant terminated him because of this mistaken view of his back. Ex. 2, 22:4-12; Ex. 3; Ex. 12. These undisputed facts make summary judgment appropriate on each of these discrete issues, as well as the overall question of Defendant’s liability. VI. The Legal Standard for Summary Judgment Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The evidence, and reasonable inferences drawn from the evidence, must be viewed in the light most favorable to the nonmoving party. Jones v. United Parcel Service, Inc., 502 F.3d 1176, 1183 (10th Cir. 2007). VII. Plaintiff’s Affirmative Case A. The Elements of Plaintiff’s Case Plaintiff’s case has three elements: “A prima facie case of disability discrimination under the ADA requires that the Employee (1) be a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) suffered discrimination by an employer or prospective employer because of that disability.” E.E.O.C. v. Picture People, Inc., 684 F.3d 981, 985 (10th Cir. 2012); see also Tate v. Farmland Industries, Inc., 268 F.3d 989, 992 (10th Cir. 2001). The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).” 42 U.S.C. § 12102(1). Paragraph (3) of the statute clarifies that a person is regarded as having such an impairment “if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 7 of 20 8 perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3). The ADA further clarifies that discrimination includes “participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by this subchapter.” 42 U.S.C. § 12112(b)(2). In other words, an employer may not contract away its employee’s right to be free from discrimination. “Employers do not escape their legal obligations under the ADA by contracting out certain hiring and personnel functions to third parties.” Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468 n. 31 (5th Cir. 2006) (quoting Holiday v. City of Chattanooga, 206 F.3d 637, 645 (6th Cir. 2000)). “[S]ection 12112(b)(2) was . . . intended to prohibit an entity from doing through a contractual relationship what it may not do directly.” Holiday, 206 F.3d at 645 (quoting Piquard v. City of East Peoria, 887 F.Supp. 1106, 1124 (C.D.Ill.1995)). B. Plaintiff Was Regarded As Having a Disability Defendant’s termination letter to Mr. Keneipp plainly sets forth the reason for the termination: “This is to advise you that your employment with MVM, Inc. has been terminated effective October 2, 2014 as you did not meet contract requirements for the medical exam. A copy of the results is enclosed.” Ex. 3. The enclosed medical review form states that: The CSO has demonstrated his inability to exercise on a treadmill for the past year due to chronic back pain. According to his personal doctor, the CSO's back pain precludes his ability to run, and calls into serious question his ability to defend himself against attack, physically control violent, irrational individuals or crowds, or remove individuals from danger. His inability to perform these essential job functions poses an elevated risk to safety for the CSO, his colleagues, the judges, and the public. It is recommended that the CSO be found not medically qualified for the position of Court Security Officer. Id. Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 8 of 20 9 This stated reason for Plaintiff’s disqualification and termination falls squarely within the statutory definition for “regarded as” disability under 42 U.S.C. § 12102(3). The reviewing physician perceived Mr. Keneipp as having a physical impairment, chronic back pain. Ex. 3. Though the ADAAA removed the requirement that the perceived impairment limit a major life activity, the reviewing physician plainly regarded Mr. Keneipp as having such a limiting impairment, stating that it “preclude[ed] his ability to run” or to “exercise on a treadmill” and that it “calls into serious question” his ability to perform several CSO job functions. Id. In addition, the impairment was not perceived to be transitory (i.e. less than six months duration). The reviewing physician stated that she perceived the impairment as having lasted “for the past year” and plainly regarded the impairment as ongoing. Id. Thus, as a matter of law, Mr. Keneipp was regarded as having a disability under the ADA, satisfying the first element of his case. The defendant may protest that, although the reviewing physician regarded Mr. Keneipp as having an impairment, MVM itself did not regard Mr. Keneipp as having any impairment. Indeed, Defendant has stipulated that “it will not argue . . . that the USMS’s determination that Plaintiff was not medically qualified to perform as a CSO under the Contract was proper . . . .” Dkt. No. 30. Under the ADA and the case law, an employer is responsible for subjecting its employee to discrimination, regardless of whether the discrimination arose directly from the employer or from a contractual relationship with a third party. 42 U.S.C. § 12112(b)(2), Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468 n. 31 (5th Cir. 2006), Holiday v. City of Chattanooga, 206 F.3d 637, 645 (6th Cir. 2000). MVM admits that, because of its contract with the USMS, it allowed the USMS and Federal Occupational Health (“FOH”) to medically disqualify Mr. Keneipp: Ex. 1. Christopher McHale - Vol. I, (Page 24:3 to 24:18) 3 Q. And my question to you is: As I understand this Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 9 of 20 10 4 contract, even if MVM thinks a CSO is qualified to 5 continue -- 6 A. Right. 7 Q. -- where the marshals service says they're not 8 capable, you have to defer to the marshals service; 9 right? 10 A. For this contract, yes. 11 Q. Yes. Okay. And that's what happened here. MVM 12 felt he was qualified, but the FOH doctors said he 13 wasn't; so you had to remove him as a CSO? 14 MR. RECTOR: Object to the form of the 15 question. 16 Q. (By Mr. Griffin) Right? 17 A. Correct. He couldn't be a CSO on this contract. 18 Correct. This contractual relationship subjected Mr. Keneipp to being regarded as having an impairment and disqualified by the reviewing physician. There is evidence that, at the time, MVM also regarded Mr. Keneipp as having an impairment, since the MVM manager involved in the termination stated that “CSO Keneipp does not meet the CSO medical standards required by the contract.” Ex. 12. However, whether MVM endorsed that view, disagreed, or simply turned a blind eye is of no legal consequence, since in any case MVM acted on the discriminatory perception of Plaintiff and terminated him. “If MVM, via its contract with USMS, has subjected [Plaintiff] to discrimination prohibited by the ADA, it cannot rest on blind contractual compliance to escape liability for discrimination.” Fromm v. MVM, Inc., 371 Fed. Appx. 263, 271 (3rd Cir. 2010) (Internal quotations omitted). And of course, even without the contract, MVM would be liable for its discriminatory termination, since “an employer cannot slavishly defer to a physician's opinion without first pausing to assess the objective reasonableness of the physician's conclusions.” Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 31 (1st Cir. 2002). Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 10 of 20 11 C. Plaintiff Is a Qualified Individual It is undisputed that Mr. Keneipp was, at all relevant times, qualified to perform the essential functions of his job as CSO. Every physician who examined Mr. Keneipp confirmed his ability to perform his job as CSO. The plaintiff was found to be fully qualified in his last annual physical before he was terminated, including a notation that his back pain had been corrected by surgery in 201. Ex. 4, p. 6. When Defendant demanded that he see a cardiologist to rule out an abnormal EKG result, the cardiologist confirmed that he was qualified.2 Ex. 6. And, specifically with regard to Plaintiff’s back, Plaintiff’s back surgeon had confirmed the success of the sciatica surgery in 2011 and declared that Plaintiff was fully qualified and able to work as a CSO. Ex. 5. MVM does not contend otherwise—indeed, its representative confirmed that MVM has always believed Plaintiff to be qualified to work as a CSO: Ex. 1. Christopher McHale - Vol. I, (Page 39:7 to 39:10) 7 Q. So to run through a series of questions: Has MVM 8 ever had the view that Mr. Keneipp was unable to 9 perform the essential functions of his CSO job? 10 A. No. Likewise, MVM’s representative was unable to identify any contractual or medical requirement that Plaintiff was unable to meet: Ex. 1. Christopher McHale - Vol. I, (Page 40:18 to 40:25) 18 Q. All right. And I want to make sure we clear this 19 up. As we sit here today, MVM cannot share with us 20 any contractual provision or requirement that 21 Mr. Keneipp violated in connection with the medical 22 requirements of a CSO position? 23 MR. RECTOR: Object to the form of the 24 question. 25 A. No. 2 There was no business necessity for this medical follow-up requirement, since the EKG abnormality had been ruled out as having any clinical significance the year before, following Plaintiff’s 2012 physical. Nonetheless, Plaintiff complied with the requirement and the cardiologist once again confirmed his fitness for duty. Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 11 of 20 12 Mr. McHale was designated and prepared to testify for MVM regarding the essential functions of Plaintiff’s job and his ability to perform those functions. Ex. 13. He consistently testified that it was MVM’s belief that Mr. Keneipp was a qualified individual, able to perform all the essential functions of the job. Ex. 1, 15:24-16:21, 21:18-22:4, 39:7-10. MVM has never withdrawn or supplemented this testimony. Thus, it is undisputed that Mr. Keneipp was a qualified individual under the ADA, satisfying that element of Plaintiff’s affirmative case. D. Defendant Terminated Plaintiff Because He Was Regarded As Having a Disability There is no dispute that the cause of Plaintiff’s termination was the reviewing physician’s false perception that Plaintiff had an impairment. Defendant’s termination letter explicitly stated that that the termination was due to the medical exam results and attached the reviewing physicians’ statement that perceived Mr. Keneipp as being unable to run, exercise on a treadmill, or perform various essential functions of the CSO position. Ex. 3. Defendant’s manager wrote at the time that Plaintiff was being terminated because he did not meet “CSO medical standards,” citing the reviewing physician’s disqualification letter. Ex. 12. Defendant’s corporate representative likewise confirmed that MVM terminated of Plaintiff solely because of the physician’s disqualification letter: Ex. 2. McHale, Christopher - Vol. II, (Page 22:4 to 22:8) 4 Q. (BY MR. NEUERBURG) Mr. McHale, my question is: 5 Are you -- to MVM's knowledge, the only reason for 6 Mr. Keneipp's termination that MVM is aware of is that 7 letter; is that correct? 8 A. That is correct. Defendant’s termination letter to Plaintiff, along with the admissions of its corporate representative, establish as a matter of law that Defendant terminated Plaintiff based upon the reviewing physician’s perception that he had an impairment, back pain. Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 12 of 20 13 As straightforward as the legal elements of Plaintiff’s claim are, simply focusing on the elements of the claim without considering the broader view can obscure how truly shocking MVM’s actions were. MVM knew, at all times, that Mr. Keneipp was fully qualified and able to perform his job. Ex. 1, 15:24-16:21, 21:18-22:4, 39:7-10. MVM knew that, as his employer, it was responsible for protecting his right to be free from discrimination—not just discrimination from MVM, but also discrimination from contracting third parties. Ex. 1, 47:4-14, 45:20-46:21. But MVM still did nothing to protect its worker: Ex. 1. Christopher McHale - Vol. I, (Pages 51:24 to 52:3) 24 Q. My question is: What, in this case, did MVM do to 25 protect his right to be free from unlawful 1 disability discrimination? 2 A. I would say we didn't do -- I mean I would say 3 nothing. When MVM was told that the reviewing physician regarded Mr. Keneipp as having a serious impairment, even though MVM knew this was false and that he was fully able to do his job, MVM fired him the next day without any safeguards and apparently without any remorse. Ex. 1, 63:19- 66:8, 81:11-17; Ex. 2, 61:12, 74:7-14. This is not a case in which a jury must speculate as to the defendant’s motives, or evaluate some purported non-discriminatory reason for the termination. The undisputed evidence is that MVM fired Mr. Keneipp for one reason and one reason only: MVM contracted to have a third party to evaluate Mr. Keneipp’s medical qualifications, that third party regarded Mr. Keneipp as disabled, and MVM terminated Mr. Keneipp based upon that evaluation. The fact that MVM knew the evaluation to be false and Plaintiff to be qualified in no way absolves MVM from liability—it makes MVM’s conduct all the more shocking. Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 13 of 20 14 VIII. Defendant’s Affirmative Defenses A. Defendant’s Business Necessity Defense Has No Basis in Law or Fact Defendant has affirmatively pleaded that “[I]ts actions related to Plaintiff were based upon business necessity.” Dkt. No. 11, paragraph 16. As the Tenth Circuit has explained, “the employer has the right to establish to establish what is required to satisfactorily perform the job,” provided the requirements are “(1) job-related, (2) uniformly enforced, and (3) consistent with business necessity.” Wilkerson v. Shinseki, 606 F.3d 1256, 1264 (10th Cir. 2010); see also 42 U.S.C. § 12113(a), 29 C.F.R. § 1630.15, McDonald v. Holder, 2010 WL 4362821 at *3 (N.D. Oklahoma Oct. 26, 2010). Defendant then clarified and limited its business necessity defense in response to a discovery dispute, stating that “Defendant’s business necessity defense in this case does not involve a uniform application of medical standards (which Defendant does not set), but whether it consistently complies with its contractual obligation to remove CSO’s from performing under the contract because the USMS deems the CSO medically disqualified.” Dkt. No. 28, p. 6. Defendant further limited the defense in the parties’ joint stipulation: Defendant MVM, Inc. (“Defendant”) stipulates that its affirmative defense of business necessity is based solely on the written contractual provisions (“Contract”) with the United States Marshals Service (“USMS”). Defendant further stipulates that it will not argue as part of its business necessity defense that the USMS’s determination that Plaintiff was not medically qualified to perform as a CSO under the Contract was proper, or that any other medical disqualifications by the USMS under the Contract were proper. Dkt. No. 30. Thus, Defendant does not claim as part of its business necessity defense that the medical disqualification of Plaintiff was based upon any legitimate job requirement. What Defendant calls its “business necessity” defense is utterly unlike the defense contemplated by the ADA or the Tenth Circuit, since it deals not with the job of CSO but with Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 14 of 20 15 Defendant’s contract. In other words, the law allows otherwise-discriminatory requirements if they are necessary so that the job can be satisfactorily performed. Wilkerson, 606 F.3d at 1264. But Defendant has stipulated that it will not defend the medical requirements, and its representative has conclusively admitted that Mr. Keneipp was always able to satisfactorily perform the job. Ex. 1, 15:24-16:21, 21:18-22:4, 39:7-10. Thus, there is no job requirement at issue. MVM’s defense is not that that there was merit to its termination of Mr. Keneipp. Dkt. No. 30. Rather, MVM’s defense is that, even though the disqualification was based on a false perception of disability, MVM had no choice but to terminate Mr. Keneipp because of its contract: Ex. 1. Christopher McHale - Vol. I, (Page 41:1 to 41:16) 1 Q. (By Mr. Griffin) Is there -- let me just ask you 2 this: If you don't know, it's okay, but do you know 3 why MVM accepts letters from the marshals service 4 that claims that a given CSO doesn't meet contract 5 requirements without asking the USMS which contract 6 requirements that the CSOs allegedly violate? 7 A. Do I know why we accept their letter? 8 Q. Yeah, without telling you which provision that your 9 employee doesn't allegedly comply with. 10 A. Because under the contract, they're allowed to 11 remove somebody from the contract for whatever 12 reason they deem necessary. 13 Q. And as I understand it, MVM's position on that is 14 that it doesn't matter whether it's right or wrong, 15 MVM has to comply. 16 A. Correct. See also Dkt. No. 30. Not only is this position unsupported by the law on business necessity, it is flatly contradicted by the ADA itself, which states that it is unlawful to subject an employee to discrimination based on a contractual arrangement. 42 U.S.C. § 12112(b)(2) “If MVM, via its contract with USMS, has subjected [Plaintiff] to discrimination prohibited by the ADA, it cannot rest on blind contractual compliance to escape liability for discrimination.” Fromm v. MVM, Inc., 371 Fed. Appx. 263, 271 Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 15 of 20 16 (3rd Cir. 2010) (Internal quotations omitted). “Employers do not escape their legal obligations under the ADA by contracting out certain hiring and personnel functions to third parties.” Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468 n. 31 (5th Cir. 2006) (quoting Holiday v. City of Chattanooga, 206 F.3d 637, 645 (6th Cir. 2000)). It would violate the entire purpose of the ADA if the law permitted MVM to terminate a fully qualified and able employee based on the perception of disability, simply because MVM had signed a contract giving up its employees’ rights. If such a contract could negate employees’ right to be free from discrimination, every employer could sign such a contract and the rights would be illusory. MVM’s contractual argument, as a matter of law, is not business necessity. Not only is Defendant’s business necessity defense fatally flawed as a legal matter, but as a factual matter as well. Defendant claims that when Plaintiff was medically disqualified, it was contractually obligated to terminate him, which it did the very next day. Of course, Defendant admits that there was no business necessity for it to agree to such a contract in the first place. Ex. 1, 86:23-88:22. Defendant admits that there was only one reason it agreed to such a contract: so that MVM could make a profit. Ex. 1, 30:13-31:3. As a matter of law, the mere pursuit of greater profit is not business necessity. An employer cannot simply demonstrate that an inquiry is convenient or beneficial to its business. Instead, the employer must first show that the asserted “business necessity” is vital to the business. For example, business necessities may include ensuring that the workplace is safe and secure or cutting down on egregious absenteeism. The employer must also show that the examination or inquiry genuinely serves the asserted business necessity and that the request is no broader or more intrusive than necessary. The employer need not show that the examination or inquiry is the only way of achieving a business necessity, but the examination or inquiry must be a reasonably effective method of achieving the employer's goal. Fraser v. Avaya, Inc., Civ. No. 10-cv-00800-RPM, 2013 WL 4757263 at *2 (D. Colo. 2013) (emphasis added) (quoting Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88, 97–98 (2003)). Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 16 of 20 17 The other party to the contract, the USMS, has testified that it does not interpret the contract as MVM has represented the contract to the Court. Indeed, the disqualification letter itself asked Defendant to express any “questions or concerns” regarding Plaintiff’s disqualification. Ex. 8. Had Defendant done so, the USMS would have taken those concerns seriously and reconsidered the disqualification as necessary. Ex. 9, 33:11-34:21. Indeed, far from expecting immediate mechanical compliance from Defendant, the USMS expected that Defendant would help correct disqualifications made in error, since Defendant was best-positioned to do so. Ex. 9, 28:7-30:2, 38:1-23, Ex. 10, 25:13-26:3. Instead of protecting its employee’s rights, as the USMS expected and the law requires, Defendant did nothing. There was no business necessity for this inaction. Defendant raised no questions or concerns even though the errors in the disqualification were obvious, since no physician had ever stated before that Mr. Keneipp was unable to run or perform the essential functions of the job. Ex. 1, 49:2-7. Defendant raised no questions or concerns even though Plaintiff had sent a letter asking for help on this precise issue just weeks before. Ex. 11. Indeed, the MVM manager who received the disqualification letter testified that she did not even understand the USMS request to it to questions or concerns about the disqualification, and never received any training from MVM on providing such information. Ex. 7, 20:1-22:11, 36:24-37:24. This disconnect by Defendant had no basis in business necessity, nor in the Defendant’s contract, but simply showed Defendant’s indifference to plaintiff’s federally-protected rights. B. Defendant Has No Evidence of Failure to Mitigate MVM has pleaded as an affirmative defense that Plaintiff failed to mitigate his damages following his termination. Dkt. No. 11, paragraph 10. Defendant bears the burden of proving that Plaintiff did not exercise reasonable diligence. Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 17 of 20 18 Cir. 1990); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 937 (10th Cir. 1979). “[T]he defendant must establish (1) that the damage suffered by plaintiff could have been avoided, i.e. that there were suitable positions available which plaintiff could have discovered and for which he was qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a position.” E.E.O.C. v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980); see also E.E.O.C. v. Beverage Distributors Co., LLC, Civ. No. 11-cv-02557, 2013 WL 6458735 at *4 (D. Colo. Dec. 9, 2013) (rev’d on other grounds). MVM admits that it has no evidence of the first element: Ex. 2. McHale, Christopher - Vol. II, (Pages 10:19 to 11:6) 19 Q. Okay. Do you have any evidence -- does MVM 20 have any evidence of any specific position that was 21 available to Mr. Keneipp that he should have applied for? 22 MR. RECTOR: Object to the form of the 23 question. 24 A. Not that I am aware of. 25 Q. (BY MR. NEUERBURG) Okay. Thank you. 1 And is MVM aware of any other employee -- 2 employers in Tulsa that hire 71-year-old career law 3 enforcement personnel like Mr. Keneipp? 4 MR. RECTOR: Object to the form of the 5 question. 6 A. Not that I am aware of. See also Ex. 2, 8:13-11:63. Discovery in this case closed on August 22, 2016. Defendant’s representative admitted that MVM has no evidence that any suitable positions were available to Plaintiff after his termination. If Defendant had contended that suitable positions were available, Plaintiff certainly would have inquired further as to the basis for Defendant’s contention, the positions’ hours and rate of pay, and other information. But Defendant simply had no evidence at all, and this repeated admission was 3 Note that there is an error in the Ex. 2 transcript on lines 8:16 and 8:20: the question posed asked about suitable positions after Keneipp was fired, not after he was hired. The witness, in his response, plainly understood the question to deal with suitable positions after the termination. Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 18 of 20 19 neither withdrawn nor supplemented as required. “[P]arties have a duty to supplement not only documentary discovery responses, but also testimonial evidence such as that given by a Rule 30(b)(6) witness . . . .” Gen. Steel Domestic Sales, LLC v. Chumley, No. 13-CV-00769-MSK-KMT, 2015 WL 3498780, at *1 (D. Colo. June 2, 2015). Accordingly, summary judgment for Plaintiff is appropriate on Defendant’s affirmative defense that Plaintiff failed to mitigate his damages. IX. Conclusion Defendant terminated David Keneipp from his job as CSO because of a perceived impairment, even though it knew that he was fully qualified and able to do his job. This was disability discrimination. If David Keneipp had been judged on his ability and the quality of his work, he would still be serving as a Court Security Officer guarding the federal judiciary of the Northern District of Oklahoma. As set forth above, Plaintiff requests summary judgment on the following discrete issues: that Plaintiff was qualified to work as a CSO, that he was regarded as having an impairment, sciatica/back pain, and that he was terminated by Defendant because he was regarded as having an impairment. Summary judgment for Plaintiff is also appropriate on Defendant’s affirmative defenses of business necessity and failure to mitigate. Should the Court grant summary judgment on the elements of Plaintiff’s affirmative case and the defense of business necessity, it will establish Defendant’s liability for violating the ADA, making partial summary judgment appropriate as to the issue of liability and leaving only the issues of damages and punitive damages for the jury. Respectfully submitted, /s/ John W. Griffin, Jr. John Griffin, Jr. Texas Bar No. 08460300 Michael J. Neuerburg Texas Bar No. 24075562 Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 19 of 20 20 203 North Liberty Street Victoria, Texas 77901 (361) 573-5500 Fax (361) 573-5040 Katherine L. Butler Texas Bar No. 03526300 1007 Heights Boulevard Houston, Texas 77008 (713) 526-5677 Fax (888) 370-5038 Michael D. McGrew, OBA #13167 223 North 3rd Street, No. 206 Muskogee, Oklahoma 74401 (918) 684-4321 Fax (918) 684-4322 Counsel for the Plaintiff CERTIFICATE OF SERVICE I certify that a true and correct copy of this document has been served upon the defendant via the electronic filing system of the United States District Court for the Northern District of Oklahoma on October 18, 2016. /s/John W. Griffin, Jr. John W. Griffin, Jr. Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 20 of 20 Exhibit 1 Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 1 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA DAVID L. KENEIPP, ) ) Plaintiff, ) ) vs. ) No. 4:15-CV-00565-JEF-TLW ) MVM, INC., ) ) Defendant. ) VIDEOTAPED DEPOSITION OF CHRISTOPHER McHALE, taken at 321 South Boston Avenue, Suite 300, Tulsa, Oklahoma, on the 25th day of May, 2016, on behalf of the Plaintiff, before Ashley Ballard, CSR—OK, pursuant to Federal Rules of Civil Procedure. Fee for original, $_________ paid by Plaintiff. Russell Court Reporting, Inc. P.O. Box 521131 Tulsa, Oklahoma 74152—1131 (918) 550—8086 Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 2 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 2 (Pages 2 to 5) Page 2 1 A P P E A R A N C E S 2 FOR THE PLAINTIFF: 3 Mr. John Griffin, Jr. Mr. Michael J. Neuerburg 4 jwg@lawmgk.com mjn@lawmgk.com 5 MAREK, GRIFFIN & KNAUPP 203 North Liberty Street 6 Victoria, Texas 77901 7 8 FOR THE DEFENDANT: 9 Mr. Jonathan G. Rector Mr. Steven L. Rahhal 10 jrector@littler.com srahhal@littler.com 11 LITTLER 2001 Ross Avenue 12 Suite 1500 Dallas, Texas 75201 13 14 ALSO PRESENT: 15 DAVID KENEIPP 16 17 VIDEOGRAPHER: 18 Mr. David Carney 19 BALLARD VIDEO PRODUCTIONS 1831 East 71st Street 20 Tulsa, Oklahoma 74136 21 22 23 24 25 Page 3 1 C O N T E N T S 2 PAGE 3 Direct Examination by Mr. Griffin. . . . . . 5 4 5 E X H I B I T S 6 NO. DESCRIPTION PAGE 7 1 Notice to take deposition. . . . . . 7 8 2 E-mail . . . . . . . . . . . . . . . 17 9 3 Department of Justice letter . . . . 34 10 4 Termination letter . . . . . . . . . 40 11 5 August 23, 2014 letter from David Keneipp . . . . . . . . . 52 12 6 C.9 Physical and Medical Standards . 19 13 7 Essential job functions list . . . . 56 14 8 Not marked -- 15 9 Not marked -- 16 10 Contract . . . . . . . . . . . . . . 29 17 11 Fitness for duty file. . . . . . . . 64 18 12 JSD Medical Review Form. . . . . . . 65 19 13 Medical Processing Department memo . 66 20 14 Not marked -- 21 15 Veronica Naman memo. . . . . . . . . 70 22 16 Medical Review Form. . . . . . . . . 72 23 17 HMC Cardiovascular Diagnostics study 74 24 18 Veronica Naman memo. . . . . . . . . 75 25 Page 4 1 E X H I B I T S 2 NO. DESCRIPTION PAGE 3 19 April 30, 2015 letter from Christopher McHale. . . . . . . . 75 4 20 Portions from handbook . . . . . . . . 76 5 21 Not marked -- 6 22 Collective Bargaining Agreement. . . . 82 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 5 1 CHRISTOPHER McHALE, 2 duly sworn to testify the truth, the whole truth, 3 and nothing but the truth, testified as follows 4 beginning at 1:45 p.m.: 5 6 DIRECT EXAMINATION 7 BY MR. GRIFFIN: 8 Q. Would you please state your full name, sir. 9 A. Christopher Martin McHale. 10 Q. And how old a gentleman are you? 11 A. Fifty years old. 12 Q. And how are you employed? 13 A. I am employed by MVM, Incorporated. 14 Q. And what is your job? 15 A. I'm general counsel vice-president. 16 Q. All right. Were you the chief lawyer for the 17 company? 18 A. Yes. 19 Q. All right. Tell us a little bit about your 20 background; where you were born and raised. 21 A. I was born in Brooklyn, New York. I went to law 22 school at St. John's University School of Law; 23 graduated in 1995 and have been practicing since 24 1996. 25 Q. All right. Share with us a little bit about your Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 3 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 3 (Pages 6 to 9) Page 6 1 job history since you graduated from law school. 2 A. Getting out of law school, prior to being admitted 3 in the bar, I worked at American Express handling 4 subpoena deuces tecums; reviewing documents to make 5 sure they matched the subpoenas. 6 Upon passing the bar, I worked for a law firm 7 called Holm, Priscilla & O'Hara. It was a firm in 8 New York city representing unions. 9 From there, I got a job down in Virginia with 10 a company called REHAU, Incorporated as counsel. 11 After REHAU, I spent six months at Epstein, 12 Becker & Green in Washington, D.C. 13 After Epstein, Becker & Green, I was with BCP 14 International, a government contracting company for 15 the Defense, Department of Defense. 16 And then finally with MVM, Incorporated. 17 Q. All right. And when did you start with MVM? 18 A. December 2013. 19 Q. And are there other lawyers who work for the 20 company besides you? 21 A. No. 22 Q. All right. So you're the only lawyer? 23 A. Correct. 24 Q. Great. And are you married, sir? 25 A. Yes. Page 7 1 Q. And you got children? 2 A. Correct. 3 Q. And how many kids? 4 A. Two. 5 Q. All right. And their ages? 6 A. Eighteen and 15. 7 Q. Congratulations. Almost off the payroll for the 8 oldest. 9 A. Exactly. 10 Q. All right. Let me ask you to look at Exhibit 1 11 and, if you can, share with us -- confirm with us 12 that that is the notice of the deposition for MVM 13 that we're here about today. 14 A. Correct. 15 MR. RECTOR: And Counsel, if I could get a 16 copy of any exhibits that are being shown. Sorry. 17 Q. (By Mr. Griffin) Can you confirm that? 18 A. Correct. 19 Q. Okay. Great. Have you reviewed those topics in 20 preparation for your deposition this afternoon? 21 A. I have, yes. 22 Q. All right. Great. Let me start by asking you 23 about MVM. Describe the company and what it does. 24 A. MVM is a government contractor providing armed and 25 unarmed security to the federal government. We also Page 8 1 provide linguists to the federal government. 2 Q. And how many people does MVM employ? 3 A. Currently, about 2400. 4 Q. All right. And in terms of the company, who is 5 your boss? 6 A. My boss is Kevin Marquez. 7 Q. And what is Mr. Marquez's title? 8 A. CEO. 9 Q. Okay. And you mentioned -- well, let me ask you 10 about the linguists. Are the linguists law 11 enforcement people or not? 12 A. No. 13 Q. And how many linguists do you have? 14 A. There is probably about 400. 15 Q. All right. Do all of the linguists -- well, let me 16 ask you: Is that their title? Linguists? 17 A. Pretty much, yes. 18 Q. And in lay people's terms, what is a linguist? 19 A. They do translations. Generally what they'll do is 20 they'll listen to wiretaps and translate them. 21 Q. All right. And do they do that for multiple 22 federal -- arms of the federal government? 23 A. Correct, yes. 24 Q. So MVM provides linguists who then translate things 25 for the federal government? Page 9 1 A. Correct. 2 Q. All right. And in terms of the other roughly 2,000 3 employees, what do they do? 4 A. Security, either armed or unarmed. 5 Q. And how many armed versus unarmed? 6 A. All but 400 are armed. We've got 400 that are 7 unarmed. 8 Q. All right. And does MVM have multiple contracts 9 with different branches of the federal government? 10 A. Yes. 11 Q. Share with us the different branches of the 12 government with whom MVM has contracts to provide -- 13 to provide workers? 14 A. The obvious one is U.S. Marshals Service; FPS, the 15 Federal Protective Services; ICE, Immigration and 16 Custom Enforcement; SSA, Social Security 17 Administration. 18 Q. Uh-huh. 19 A. And the unarmed guards are for NIH, the National 20 Institutes of Health. 21 Q. Thank you for that. And how many CSOs does MVM 22 employ in connection with the -- providing security 23 at United States courthouses? 24 A. I believe it's approximately 350. 25 Q. And are they all across the country or confined to Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 4 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 4 (Pages 10 to 13) Page 10 1 certain areas? 2 A. They're confined to the 10th Circuit. 3 Q. So all 350 of the court security officers you 4 employ are all working within the 10th Circuit? 5 A. Correct. 6 Q. Okay. Has that always been the case or have there 7 been other circuits that were -- where MVM employed 8 CSOs? 9 A. To my knowledge, there were other circuits. 10 Q. Before you got there? 11 A. Correct. 12 Q. Okay. But since you've been there, there has only 13 been the 10th Circuit? 14 A. Correct. 15 Q. Okay. Are there any that are coming into effect in 16 the -- that are already confirmed for the future? 17 A. No. 18 Q. Okay. And how many employees does MVM have that is 19 not working under some sort of a contract with an 20 agency? 21 A. Just the headquarters employees. 22 Q. And how many of those? 23 A. About 40. 24 Q. Okay. Now, in terms of the other contracts -- let 25 me just ask you this: In terms of MVM, how long has Page 11 1 the company been in existence? 2 A. I believe it is 1978, give or take. 3 Q. All right. And -- let me just ask you this since 4 you're a lawyer: Is it MVM's policy that none of 5 its employees will be discharged for having a 6 disability where the employee is qualified to do 7 their job? 8 MR. RECTOR: Object to the form of the 9 question. 10 A. I would say - if I understand your correct -- 11 understand your question - MVM has a policy that we 12 do not terminate people simply because of a 13 disability. 14 Q. (By Mr. Griffin) Right. In other words, I'm not 15 questioning you as an expert witness by any stretch, 16 but you understand, as the company's lawyer, that 17 they're not supposed to discriminate against 18 workers, qualified workers, who have a disability? 19 A. Yes. 20 Q. Okay. And I just want to ask you, is it the -- 21 (Cell phone interruption.) 22 Q. (By Mr. Griffin) Sorry about that. Dick Tracy 23 just went off. 24 A. (Witness laughs.) 25 Q. Likewise, does the company recognize that it may Page 12 1 not do, through a contractual arrangement, what it 2 can't do directly; that is, discriminate against a 3 qualified worker with a disability? 4 A. Yes. 5 Q. Okay. And I want to talk to you about the other 6 contracts other than the one we'll talk about in a 7 moment with the United States Marshals Service. And 8 let me start with FPS, if that's all right. 9 A. Uh-huh. 10 Q. Who -- in the case of your employees who are 11 providing services related to the FPS, who 12 determines whether a given worker is qualified to 13 work given a medical condition? 14 A. That would be FPS. 15 Q. Okay. And ICE, same question. 16 A. Correct. 17 Q. That it would be ICE who does the medical 18 evaluation to see whether or not they're qualified 19 to perform? 20 A. Can you ask that again? 21 Q. Sure. I'm just following up. In other words, I've 22 seen the -- we're going to talk about it in a 23 minute, but I've seen the USMS contract with MVM 24 that says USMS and their designees will review the 25 information and make a determination of whether or Page 13 1 not a worker is fit for duty medically. 2 A. Right. 3 Q. Right? 4 A. Correct. 5 Q. Now, what I'm trying to get at is does the contract 6 with ICE have a similar provision where ICE gets to 7 call the shots when it comes to whether or not one 8 of MVM's employees will be declared qualified or 9 unqualified? 10 A. No, not for medical, nor FP -- now that I 11 understand your question, nor FPS. 12 Q. Okay. And -- 13 A. Essentially what they'll do is they will set a 14 minimum of -- the person has to be able to stand for 15 eight hours, the person has to be able to lift 25 16 pounds, whatever the minimum qualification is. 17 Q. Right. 18 A. We submit those qualifications to a doctor and a 19 doctor will indicate whether the person can meet 20 those qualifications. It will come back to us, we 21 will look at and determine whether that person meets 22 the qualifications. 23 Q. Right. 24 A. So if the person can't lift 25 pounds or he can't 25 be on his feet for eight hours, we, MVM, would then Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 5 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 5 (Pages 14 to 17) Page 14 1 disqualify him. 2 Q. Understood. So in other words, if it's a Federal 3 Protective Service or an ICE employee of MVM, MVM 4 has the worker undergo an examination? 5 A. Correct. 6 Q. And the examination comes back to MVM; right? 7 A. Correct. 8 Q. And MVM makes the decision whether the person is 9 qualified medically to do the job? 10 A. Yes. 11 Q. Okay. Now, that is different from the contract 12 with the marshals service, is it not? 13 A. Yes. 14 Q. Okay. And we'll talk about that more in detail in 15 a moment, but let me ask you about the topics for a 16 moment. You have reviewed those before today, I 17 assume? 18 A. Yes. 19 Q. Okay. The first thing I want to ask you is whether 20 or not -- and let me ask you: What do you prefer to 21 be called? Mr. McHale? Chris? Or -- 22 A. Chris is fine. 23 Q. Okay. Let me just ask you this starting out: Do 24 you have any personal knowledge of any of the topics 25 in Exhibit 1? Page 15 1 A. In Exhibit 1 or A? 2 Q. Well, Exhibit 1 has an Exhibit A, but you're 3 looking at Exhibit 1 now. 4 A. Oh, okay. 5 Yes. 6 Q. Okay. What I would like for you to do, if you 7 don't mind, I'm going to check off the ones that you 8 have -- that you have some personal knowledge about 9 so I can -- we can talk about that in a moment. 10 A. Okay. Number 1. 11 Q. Okay. 12 A. Number 2. 13 Q. All right. 14 A. Number 3. 15 Q. Okay. 16 A. Number 4. 17 On number 5, I can speak of any appeals after 18 2013. 19 Q. Got it. 20 A. Or thereof. 21 Q. No problem. 22 A. Number 6. Number 8. Number 9. Number 10. Number 23 12. I could probably speak on number 11. 24 Q. You have some personal knowledge about that topic, 25 number 11? Page 16 1 A. Well, I mean to answer the -- to answer the 2 question, to my knowledge, he was doing his job, so 3 therefore I would assume that he had the -- he had 4 the essential -- he had the ability to perform the 5 essential functions. 6 Q. No problem. The reason I ask this is that -- and 7 it may not end up being terribly important, but you 8 understand you are speaking as the organization on 9 these topics today? 10 A. Correct. 11 Q. All right. And -- 12 A. And in that regard, that's why I said I know he was 13 doing the job up until he was removed by the 14 marshals. 15 Q. Sure. 16 A. So my assumption is: If he was there doing the 17 job, he was able to perform the essential functions. 18 Q. Sure. 19 A. If he wasn't able to perform the essential 20 functions, then he wouldn't have been there. He 21 would have been removed sooner. 22 Q. You have made the deposition a couple of minutes 23 shorter, because that was one of my questions I had 24 a moment ago. 25 Well, suffice it to say, your role of personal Page 17 1 knowledge would be your role as the general counsel 2 for MVM; right? 3 A. Not -- not necessarily, no. 4 Q. I mean you -- if you did, I want to know that, but 5 for example, have you ever met this gentleman? 6 A. No. 7 Q. Okay. And have you ever met any of the physicians 8 who examined him? 9 A. No. 10 Q. Or any of the FOH doctors who wrote any forms? 11 A. No. 12 Q. Okay. All right. Then -- but in any event, you 13 have reviewed MVM's records and gotten the 14 information that you can in order to be able to 15 address the topics that's in Exhibit Number 1? 16 A. Yes. 17 Q. Okay. Let me show you what has been marked as 18 Exhibit Number 2 - and I'll try to make some of 19 these things pretty brief here - and ask if you can 20 confirm that Exhibit Number 2 is the directive or 21 the request by the U.S. Marshals Service to have MVM 22 remove David Keneipp as a CSO. 23 A. Correct. That is -- that's -- I'm sorry, repeat 24 the question. 25 Q. This is the -- this is the e-mail from Veronica Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 6 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 6 (Pages 18 to 21) Page 18 1 Naman, who was here with us this morning, notifying 2 Greg Kragel that it has been determined that 3 Mr. Keneipp must be removed as a CSO? 4 A. Yes, that's the e-mail. 5 Q. Okay. And do you see the sentence in the -- and I 6 assume this is an internal e-mail with MVM? 7 A. Correct. 8 Q. Okay. And there's a sentence that says, "CSO 9 Keneipp does not meet the CSO medical standards 10 required by the contract." 11 A. Correct. 12 Q. Do you -- can you share, from MVM, as a 13 representative of MVM, which contractual provision 14 was implicated where it says that he did not meet 15 the medical standards? 16 A. The medical standards are laid out in the contract. 17 There is -- there is a certain clause under what the 18 CSOs have to meet. 19 Q. Uh-huh. 20 A. Once the information -- the medical information is 21 submitted to the U.S. Marshals, they would then 22 reply to us, letting us know whether a person is 23 qualified or not. Based on that, that's when this 24 e-mail is generated. 25 Q. And I'm not fussing at you, but let me object as Page 19 1 nonresponsive. 2 My question was: Which contractual provision 3 was it that was implicated by the statement that 4 says that he was -- that he did not meet the medical 5 standards required by the contract? 6 A. I would say Article or Section C.9 of the contract. 7 Q. Okay. Let me show you Exhibit 6 and ask if you can 8 confirm that that is the contract to which you just 9 referred. 10 A. Yes. 11 Q. Okay. Share with the ladies and gentlemen of the 12 jury, if you would, the provision that Mr. Keneipp 13 did not meet in terms of his failure to, quote, meet 14 the CSO medical standards required by the contract. 15 A. I'm not aware of which specific section under C.9. 16 Q. Okay. Fair enough. Now, in terms of MVM's 17 relationship with the United States Marshals 18 Service, I just want to ask a few questions. First, 19 background. Mr. Keneipp was MVM's employee; 20 correct? 21 A. Correct. 22 Q. All right. And before he worked for MVM, he was an 23 employee of AKAL Security? 24 A. Yes. 25 Q. Okay. And on the ground, his supervisors were MVM Page 20 1 people? 2 A. Yes. 3 Q. MVM signed his checks? 4 A. Yes. 5 Q. I think you mentioned this before, but let me just 6 see if I can cut it to the chase: When MVM got on 7 the scene and began to provide employees to provide 8 security within the 10th Circuit, MVM felt that 9 Mr. Keneipp was qualified? 10 A. Yes. 11 Q. Okay. And as I understood what you shared with us 12 before, up until the time the marshals service 13 requested that he be removed from his CSO position, 14 MVM felt he was qualified? 15 A. Yes. 16 Q. Share with us, if you would, the quality of 17 Mr. Keneipp's work performance when he was a CSO for 18 MVM. 19 A. To my -- to my understanding, it was -- it was 20 fine. 21 Q. Was he ever written up for anything? 22 A. No. 23 Q. Was he ever given any verbal warnings? 24 A. No. 25 Q. Or reprimands? Page 21 1 A. No. 2 Q. Any problems with his performance of any kind? 3 A. No. 4 Q. And insofar as the contract, Exhibit Number 6, if 5 you look at paragraph C.9.4.2 -- 6 A. I'm sorry, say that again. 7 Q. That's okay. The page that's marked C.20. That 8 might be the easiest way to find it first. 9 A. Yep. Okay. 10 Q. At the bottom of the page, we can see that the 11 contract sort of says the inverse of what you said 12 before, that if MVM feels like a CSO has a medical 13 situation that impedes the security of the judiciary 14 or interferes with the duties of a CSO, that MVM 15 shall immediately remove the individual from 16 providing services as a CSO? 17 A. Correct. 18 Q. All right. So if at any point in time, MVM 19 observed anything that Mr. Keneipp had done that 20 suggested that he had some medical condition that 21 would interfere with his ability to work, then MVM 22 itself would take action. 23 A. Correct. 24 Q. Okay. MVM never did that? 25 A. No. Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 7 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 7 (Pages 22 to 25) Page 22 1 Q. MVM never had the view that he was limited in his 2 ability to perform the essential functions of his 3 CSO position? 4 A. No. 5 Q. Okay. To your knowledge, the only -- the only 6 entity that took that view of his ability was the 7 USMS or its designees under the contract that MVM 8 signed; correct? 9 A. Correct. 10 Q. Okay. And let me ask you this: If you don't mind 11 reading through the contract, it appears to me - and 12 I'm paraphrasing; you correct me if I'm wrong - 13 that, as between MVM and the marshals service under 14 this contract, the marshals service is delegated the 15 authority to determine whether MVM's CSOs are going 16 to be declared fit for duty or unfit for duty. 17 A. No. 18 MR. RECTOR: Object to the form of the 19 question. 20 A. No, I wouldn't say it was delegated. 21 Q. (By Mr. Griffin) Okay. 22 A. I mean we still have the ability to determine 23 whether we think he's fit or unfit. As you read in 24 that one photograph, if we think that he's unfit, we 25 can remove him. Page 23 1 Q. Right. But if you -- 2 A. So we haven't delegated it. 3 Q. Right. But as I read this - we'll go through it 4 provision by provision - but where MVM thinks he is 5 fit and the marshals service designees say he's not, 6 as I understand this contract, you're obligated to 7 let a CSO go regardless of your own view, MVM's own 8 opinion of whether he's qualified or not; right? 9 A. We're obligated to let him what? 10 Q. Let him go as a CSO. 11 A. No, that's not correct. 12 Q. Okay. Look at C.9.1.5. I think we're -- we may be 13 miscommunicating. Because as I read that, it says 14 MVM may not allow any CSO to perform unless FOH has 15 approved of them. 16 A. Correct. But that doesn't require us to let them 17 go. He just -- 18 Q. Maybe I was sloppy with my language. 19 A. Okay. 20 Q. When I say let go, I mean not allowed -- or removed 21 as a CSO. 22 A. Correct. He is no longer able to perform on this 23 contract. 24 Q. This gentleman was -- his job title was CSO; right? 25 A. Correct. Page 24 1 Q. Okay. And he was a CSO for MVM? 2 A. Correct. 3 Q. And my question to you is: As I understand this 4 contract, even if MVM thinks a CSO is qualified to 5 continue -- 6 A. Right. 7 Q. -- where the marshals service says they're not 8 capable, you have to defer to the marshals service; 9 right? 10 A. For this contract, yes. 11 Q. Yes. Okay. And that's what happened here. MVM 12 felt he was qualified, but the FOH doctors said he 13 wasn't; so you had to remove him as a CSO? 14 MR. RECTOR: Object to the form of the 15 question. 16 Q. (By Mr. Griffin) Right? 17 A. Correct. He couldn't be a CSO on this contract. 18 Correct. 19 Q. Exactly. Okay. All right. And that's what 20 C.9.1.5 basically says, is that FOH gets to decide 21 who is fit and who is not? 22 A. Which number? 23 Q. The bottom one on page C.16. 24 A. Oh, 9.1.5? 25 Q. Uh-huh. It says that MVM shall not allow any Page 25 1 individuals to perform under the contract until the 2 individual's qualification is determined by FOH; 3 right? 4 A. Correct. 5 Q. Now, with the other entities that MVM deals with, 6 for example -- 7 A. Well, can I -- can I just correct that? 8 Q. You sure can. 9 A. It says two things. It says, one, it's got to be 10 approved by FOH and then it's got to be approved by 11 the chief OCS. 12 Q. But both of them are not MVM people? 13 A. Correct. 14 Q. Okay. 15 A. Correct. 16 Q. In moving toward page C.17, it looks to me like MVM 17 establishes the doctors to perform the medical 18 examinations; right? 19 A. No. Well, let -- the way the system works is: We 20 notify them of a doctor. The doctor fills out the 21 paperwork, provides his credentials, provides his 22 license, provides his experience, submits it to the 23 marshals, and the marshals approves him as a doctor. 24 If he's not approved by the marshals, then he 25 cannot -- he's not qualified to do -- Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 8 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 8 (Pages 26 to 29) Page 26 1 So we identify him. We say, "Dr. Smith is the 2 guy," but Dr. Smith has to be approved by the 3 marshals. He is not -- he is not being approved by 4 us. 5 Q. Right. Under your contract? 6 A. Under the contract. 7 Q. Okay. Fair enough. Under Exhibit Number 6? 8 A. Correct. 9 Q. Okay. Fair enough. Moving through it though -- or 10 let me ask you this: Had this contract already been 11 negotiated by the time you got on the scene? 12 A. Well, it depends on what you call negotiation, but 13 yeah, it was awarded. 14 Q. Share with us as best you can why, under this 15 contract, MVM employees are being judged in terms of 16 their fitness for duty by a third party as opposed 17 to your contracts with ICE, Federal Protection 18 Service and other organizations where MVM makes the 19 determination of whether its own employees are fit 20 or unfit? 21 A. Well -- 22 MR. RECTOR: Object to the form of the 23 question. 24 A. To take a step back, the other agencies are also 25 allowed to remove somebody if they think they are Page 27 1 physically not fit. So it's across the board that, 2 if anybody thinks that they're unfit and are not 3 capable of performing the duties of the contract, 4 any agency within the government that we have the 5 contract with are allowed to step forward and say 6 they are not allowed to be on this contract. 7 That being said, the contracts for the U.S. 8 Marshals, they -- they deem security a much higher 9 priority than some of these other agencies; and 10 therefore, they decide who they think should be 11 permitted to work on this contract. And it's not 12 limited to just the medicals. 13 I mean I understand we're talking about the 14 medicals in this case, but they can remove somebody 15 if the person files for bankruptcy; they can remove 16 the person. If the person gets an arrest for a DWI 17 or any other arrest, they can come forward and say, 18 "We want that person removed." So it's not -- it's 19 not just limited to medicals. 20 Q. (By Mr. Griffin) I'm not fussing at you, but let 21 me -- 22 A. Okay. 23 Q. -- object to the nonresponsive portion of that 24 answer. 25 But getting back to this notion of -- Page 28 1 A. Uh-huh. 2 Q. -- who gets to decide whether one of MVM's 3 employees are medically limited in a way that keeps 4 them from being fit for duty. As I understood what 5 you said a moment ago, even though MVM does its own 6 fitness -- or reviews for other employees that are 7 working in connection with ICE and Federal 8 Protective Service and Social Security. As I 9 understood what you said though, that if those 10 agencies disagree with MVM's own assessment of their 11 workers' qualifications, they can - well, I 12 shouldn't use the word "trump" in these days - they 13 can overrule MVM's own determination of its own 14 employees' qualifications? 15 A. Correct. 16 MR. RECTOR: Object to the form of the 17 question. 18 A. Correct. 19 Q. (By Mr. Griffin) Okay. 20 A. They dictate who works on their contract. 21 Q. Okay. Is there built into any of those other 22 contracts any mechanism by which MVM or its 23 employees can challenge or otherwise -- well, 24 challenge one of those third parties' conclusions 25 that one of MVM's worker's disability interferes Page 29 1 with their ability to do the job? 2 A. There is no mechanism built in for an appeal. 3 Q. Okay. Why not? 4 A. The government hasn't put it in the contract. 5 Q. Right. But have you guys tried to put it in the 6 contract? 7 A. When the contract is issued -- and that's why I 8 said earlier when you asked was I involved in the 9 negotiations, there is no negotiation. We put 10 together a price and a performance and they come 11 back and award the contract. 12 Q. The contracts are not negotiated? 13 A. Nope. 14 Q. Let me show you Exhibit Number 10 and ask if you 15 could confirm, at least with respect to MVM's 16 contract on the 10th Circuit, that the third page of 17 the exhibit confirms that MVM's proposal has been 18 incorporated as part of this contract in its 19 entirety. 20 A. Correct. 21 MR. RECTOR: Counsel -- 22 Q. (By Mr. Griffin) Let me ask -- 23 MR. RECTOR: -- did you identify - I'm sorry - 24 as PX-10? Plaintiff's Exhibit 10? 25 MR. GRIFFIN: He is asking you what exhibit Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 9 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 9 (Pages 30 to 33) Page 30 1 number is on there. 2 THE WITNESS: It says 10. 3 MR. RECTOR: Okay. 4 Q. (By Mr. Griffin) And tell me, if you know this, 5 since these workers are MVM employees, why there's 6 no provision that has a mechanism by which mistakes 7 made by the agency with whom MVM contracts, when 8 they make mistakes about a person's disability in 9 terms of fitness for duty reviews? 10 MR. RECTOR: Object to the form of the 11 question. 12 A. Can you repeat that? 13 Q. (By Mr. Griffin) Sure. Why is there no provision 14 in the contract that provides that MVM would have a 15 way of challenging mistakes made by those with whom 16 MVM contracts in terms of fitness for duty exams for 17 MVM's employees? 18 A. Because, as I said earlier, the government didn't 19 put it in the contract. 20 Q. Well, why did MVM sign it without such a provision? 21 A. Well, essentially we don't have much of a choice. 22 The way the simple system works is: We submit a 23 proposal. If we get the award under the FAR, we're 24 obligated to accept it. 25 Q. What does MVM get out of that contract? Page 31 1 MR. RECTOR: Object to the form of the 2 question. 3 A. We -- we get profit. 4 Q. (By Mr. Griffin) Okay. All right. Well, let me 5 just ask you it in this way: Has MVM ever proposed 6 or had a discussion with the government that it 7 might be a good idea to have some level of 8 examination in the event that FOH or whoever the 9 designees are making fitness for duty decisions, 10 when they make mistakes? 11 A. Not that I'm aware of, no. 12 Q. Okay. And as I understand it - maybe cutting to 13 the chase here - the way MVM understands its 14 contract with the USMS in this case, if the docs 15 that are hired by the UMSS -- UM -- USMS and FOH, 16 who ultimately make the decision about fitness for 17 duty, if they make a mistake and disqualify somebody 18 who has got a medical condition that is not really 19 disqualifying, there's really nothing MVM can do 20 other than remove them from service as a CSO; right? 21 MR. RECTOR: Object to the form of the 22 question. 23 A. Well, yeah. If we think there's a mistake -- we 24 don't review the medical documents, so I'm not sure 25 how we would think there's a mistake. Page 32 1 Q. (By Mr. Griffin) Why doesn't MVM review the 2 medical documents for its employees? 3 A. Because it's not our physical. 4 Q. When you say it's not "our," who is "our"? 5 A. MVM. It's not MVM's physical. 6 Q. It's their employees' physical. 7 A. Correct. 8 Q. Now, as I understand the contract -- well, let's 9 put it this way: MVM entered into this agreement, 10 Exhibit Number 6, voluntarily; right? 11 A. Correct. 12 Q. To earn a profit? 13 A. Correct. 14 Q. Okay. If MVM didn't like any of these provisions 15 or thought they were inappropriate, they could 16 decide not to sign the contract; right? 17 A. No. That's what I've been trying to tell you. 18 Q. Why can't they say no to a contract they don't 19 like? 20 A. Because if -- when we submit our proposal, by 21 submitting the proposal, if we don't withdraw the 22 proposal by the time the award is made, we're 23 obligated by the FAR to accept the award. 24 Q. Right. But you voluntarily give a proposal. 25 A. Correct. Page 33 1 Q. Right. That's a choice you make. 2 A. Correct. 3 Q. And as I understand it, it's a choice you make 4 knowing that a third party will determine whether 5 your employees - and I'm talking about MVM's CSOs - 6 will be allowed to work as a result of a medical 7 situation; right? 8 MR. RECTOR: Object to the form of the 9 question. 10 A. Correct. 11 Q. (By Mr. Griffin) Okay. And -- but it looks like 12 in your contract you have with the USMS, it's MVM 13 who has to keep the records of the -- the physicals; 14 right? 15 A. We maintain them, but I -- my understanding is they 16 maintain them as well. 17 Q. Exactly. Oh, I'm going to get to that next. 18 A. Okay. 19 Q. But under your contract with USMS -- 20 A. Yeah, we maintain them. 21 Q. -- you maintain them, MVM does? 22 A. Correct. 23 Q. For each CSO? 24 A. Correct. 25 Q. Okay. I don't mean to beat this horse to death, Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 10 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 10 (Pages 34 to 37) Page 34 1 but on C.20 of Exhibit 6, that again confirms that 2 the final decision on whether someone's disability 3 will result in disqualification is one that the 4 contract gives to FOH; right? 5 MR. RECTOR: Is there a -- I'm sorry, Counsel. 6 You just said C.20. Is there a particular 7 contractual provision you're referring to? 8 Q. (By Mr. Griffin) You may answer. 9 MR. GRIFFIN: And I don't mind telling both of 10 you-all I'm on the top of the page. 11 A. Correct. 12 Q. (By Mr. Griffin) Okay. The only reason why MVM 13 removed Mr. Keneipp from his CSO position was 14 because it was requested to do so by the USMS? 15 A. Correct. 16 Q. And Exhibit 3 is a copy, is it not, of the 17 direct -- or the request by the marshals service to 18 remove Mr. Keneipp from his CSO job? 19 A. Correct. 20 Q. Now, there is a statement made at the bottom of the 21 letter from the marshals service that says, "If you 22 have questions or concerns regarding this 23 decision" - about Mr. Keneipp, it asks MVM to 24 contact Phillip Cornelius, Office of Court Security, 25 does it not? Page 35 1 A. Yes, it does. 2 Q. And as I understand MVM's practice, is that since 3 it doesn't review the medical information about its 4 CSOs, it has no reason or any way of communicating 5 any concerns to the USMS; right? 6 A. In that regard, correct. 7 Q. Okay. And as I understand it - and you tell me if 8 I'm wrong - whether MVM agrees or doesn't agree with 9 the FOH doctor, it believes it has to comply with 10 the FOH doctor when it comes to a given CSO's 11 ability to perform the essential functions of the 12 job? 13 A. No, we've got to comply with the U.S. Marshals. 14 Whatever the marshal tells us, if the marshals say 15 he's removed, he's removed. We don't get direction 16 from FOH. 17 Q. Well, I thought we just looked at the contract that 18 the U.S. Marshals Service has with you that 19 delegates that to the FOH. Is that what Exhibit 6 20 said, or did I misunderstand that with you? 21 A. What I said was, on 20 -- 22 Q. It says FOH will determine. 23 A. "After reviewing all of the medical documentation, 24 FOH will determine whether its individual meets the 25 medical standards as outlined in this contract. FOH Page 36 1 will notify the government of their findings and the 2 USMS will notify the contractor." 3 We don't -- again, the direction we get is 4 coming from the U.S. Marshals. 5 Q. Right. But in terms of the parties involved here 6 in this process -- 7 A. Right. 8 Q. -- MVM is the employer? 9 A. Correct. 10 Q. Its contract is with USMS? 11 A. Correct. 12 Q. USMS then delegates part of this to FOH? 13 A. Okay. 14 Q. Who then notifies the United States Marshals 15 Service of their views? 16 A. Correct. 17 Q. Then the U.S. Marshals Service will then notify MVM 18 of the determination? 19 A. Correct. 20 Q. And whether MVM agrees or disagrees, then MVM has 21 to remove a CSO that, under this process, has been 22 determined to be someone who is not qualified to 23 perform the job? 24 A. Correct. 25 Q. Okay. All right. And so I would assume that, in Page 37 1 none of the cases in which the FOH doctors have 2 determined that one of MVM's employees is unfit for 3 duty, has MVM ever attempted to challenge or talk 4 the USMS out of it. 5 A. I would say that's not necessarily true, no. 6 Q. Okay. When has MVM actually gone to bat for one of 7 its CSOs to try to persuade the marshals service 8 from having them removed as one of your CSOs? 9 MR. RECTOR: Object to the form of the 10 question. 11 Q. (By Mr. Griffin) If that's ever happened. 12 A. I'm drawing a blank on the individual's name, but 13 it happened November of 2014. The individual sent 14 in a letter asking to be -- listed what his concerns 15 were and why he thought he should have passed and he 16 made a request for an accommodation to be retested. 17 We then forwarded that on to the marshals 18 requesting if they would look at it and consider a 19 retest. Their response was, if we wanted to retest 20 him, we could retest him. 21 Q. And where was this CSO? 22 A. I'm drawing a blank on it. 23 Q. Okay. Regardless -- do you remember what the 24 fellow's -- or that CSO's medical condition was or 25 anything like that? Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 11 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 11 (Pages 38 to 41) Page 38 1 A. No. 2 Q. Okay. In any event, under the contract and 3 proposal that MVM gave to the USMS, that contract 4 authorizes USMS to make the final decisions on MVM's 5 CSOs on whether or not their medical situation will 6 preclude them from being fit for duty; right? 7 A. Correct. 8 Q. Okay. I would like you to confirm, if you would, 9 that MVM does not perform its own independent 10 evaluation of whether or not its CSOs are qualified 11 or not. 12 A. From a medical standpoint, that is correct. 13 Q. And when I say "qualified," I mean the definition 14 that Congress has given: Able to perform the 15 essential functions of the job. 16 A. Again, we've got what the definition of the 17 essential functions of the job are in the contract 18 and we don't test them on those essential functions. 19 Q. Right. But where the -- where the -- where the 20 marshals service or its designees determine one of 21 your CSOs is not qualified to perform the essential 22 functions, MVM does not ever do its own 23 investigation to determine whether or not its 24 employees are qualified or not? 25 A. Correct. Page 39 1 Q. Okay. And I think you confirmed this, but MVM does 2 not review the medical files to ensure that the 3 United States Marshals Service is acting 4 appropriately or not -- appropriately or not in 5 disqualifying your CSOs; right? 6 A. Correct. 7 Q. So to run through a series of questions: Has MVM 8 ever had the view that Mr. Keneipp was unable to 9 perform the essential functions of his CSO job? 10 A. No. 11 Q. Before MVM removed him from his CSO position, did 12 anybody at MVM -- was anybody at MVM aware of any 13 physical impairments that he had? 14 A. No. 15 Q. And I understand the reason you say that, no, is 16 because, even though they're in his medical files, 17 MVM does not review those files; correct? 18 MR. RECTOR: Object to the form of the 19 question. 20 A. Correct. 21 Q. (By Mr. Griffin) Okay. Have -- I assume, since 22 it -- since MVM terminated Mr. Keneipp, that MVM has 23 reviewed the medical files? 24 A. No. 25 Q. Even in preparation for your deposition today? Page 40 1 A. Correct. 2 Q. None of them? 3 A. None of them. 4 Q. Okay. Let's -- but you have seen Exhibit Number 3 5 before? 6 A. Yes. 7 Q. Am I right? 8 A. Yes. 9 Q. And I'll ask you if you have ever seen Exhibit 10 Number 4 and ask if you can confirm that it is the 11 termination letter that is dated the day after 12 Exhibit Number 3. 13 A. Correct. 14 Q. Okay. And do we agree that this letter to 15 Mr. Keneipp states that he did not meet the contract 16 requirements for the medical exam? 17 A. Correct. 18 Q. All right. And I want to make sure we clear this 19 up. As we sit here today, MVM cannot share with us 20 any contractual provision or requirement that 21 Mr. Keneipp violated in connection with the medical 22 requirements of a CSO position? 23 MR. RECTOR: Object to the form of the 24 question. 25 A. No. Page 41 1 Q. (By Mr. Griffin) Is there -- let me just ask you 2 this: If you don't know, it's okay, but do you know 3 why MVM accepts letters from the marshals service 4 that claims that a given CSO doesn't meet contract 5 requirements without asking the USMS which contract 6 requirements that the CSOs allegedly violate? 7 A. Do I know why we accept their letter? 8 Q. Yeah, without telling you which provision that your 9 employee doesn't allegedly comply with. 10 A. Because under the contract, they're allowed to 11 remove somebody from the contract for whatever 12 reason they deem necessary. 13 Q. And as I understand it, MVM's position on that is 14 that it doesn't matter whether it's right or wrong, 15 MVM has to comply. 16 A. Correct. 17 Q. Okay. Is it safe to say that, since MVM submitted 18 the proposal -- as I understand the chronology, MVM 19 submits a proposal, the United States Marshals 20 Service looks it over and accepts it or rejects it? 21 A. To some degree, that's accurate. As you said, they 22 put out a request for proposals. Several companies 23 submit proposals, MVM being one of them. They 24 review all of the proposals and deem which proposal 25 is best qualified for their contract. Generally Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 12 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 12 (Pages 42 to 45) Page 42 1 looking at the price is their number one issue. And 2 then they'll award it. So obviously if one company 3 is awarded it, the other four, five, six, whatever 4 it is, are not awarded the contract. 5 Q. MVM knew upfront in negotiating this contract with 6 the federal government that it was delegating to the 7 federal government the final decision on whether or 8 not MVM CSOs would be medically qualified or not; 9 right? 10 A. I don't know if I would agree with that. I mean 11 essentially they put out the request for proposal; 12 we submit our proposal. There is no negotiation. 13 There's no back-and-forth give and take. We submit 14 a proposal and then they review all of the 15 proposals. 16 So it's -- again, I look at it from my legal 17 standpoint. It's not the traditional negotiation. 18 To me, a traditional negotiation is, you know, give 19 and take, "This is what we want," or you just agree 20 and that's -- you know, everybody is happy. 21 In this case, we submit the proposal. They 22 accept the proposal, generally on pricing, and then 23 they issue a contract. 24 Q. So -- 25 A. What's the terms of the contract is the terms of Page 43 1 the contract. We're obligated to accept it. 2 Q. Would I be fairly characterizing what you're saying 3 by saying it's sort of a take it or leave it? 4 A. Correct. 5 Q. And MVM takes it? 6 A. Well, I go back to say it's not necessarily a leave 7 it, because you can't leave it. 8 Q. Well, but you cannot bid on it if you don't want to 9 participate in that kind of arrangement; right? 10 A. Correct. 11 Q. In other words, it's a voluntary act to enter into 12 this kind of deal with the government? 13 A. Correct. 14 Q. All right. And -- but you know at the outset of 15 the process that your CSO, MVM's CSOs, their fitness 16 for duty is going to be conducted by someone other 17 than their employer? 18 A. I would say -- I mean that's -- that's the 19 assumption, yes. 20 Q. Okay. 21 A. I mean we don't know until we get the contract. 22 Q. Right. But -- 23 A. The contract could say something different and it 24 could say -- I mean, again, they changed their 25 standards. All I'm saying is, when we go in with Page 44 1 the proposal, we go based on what's currently going 2 on in the -- in the market. 3 Q. Right. But under your understanding of the deal 4 you enter into, MVM enters into, that -- where the 5 USMS makes mistakes about your employees, you're 6 obligated to implement those mistakes when it comes 7 to a worker's fitness for duty or not? 8 MR. RECTOR: Object to the form of the 9 question. 10 Q. (By Mr. Griffin) Right? 11 A. Correct. 12 Q. Okay. Has MVM ever objected to a contract that 13 allows another party to determine your employees' 14 fitness for duty? 15 A. The marshals contract is the only contract that 16 we've had. 17 Q. I thought you said that the other government 18 contract also allows those agencies to overrule 19 MVM's decisions about its own employees. 20 A. Correct. 21 Q. Okay. My question is this: Has MVM ever objected 22 to provisions that delegate to third parties a 23 decision on whether MVM's employees are fit for 24 duty? 25 A. No. Page 45 1 Q. Why not? 2 A. Again, it's their contract. It's their safety 3 requirements. It's -- if they deem the person not 4 eligible or capable of protecting their property or 5 protecting their people, they have the ability to 6 say, "We don't want that person." Whether it's 7 medical or any other reason, they have the ability 8 to make that statement. 9 MR. GRIFFIN: Let me object to the 10 nonresponsive portion. 11 Q. (By Mr. Griffin) I'm talking about a person's 12 fitness for duty. And by that, can we agree that 13 means their ability to perform the essential 14 functions of the job, not a background problem -- 15 A. Okay. 16 Q. -- anything like that? 17 A. Okay. I'll agree to that -- 18 Q. All right. 19 A. -- for the sake of this. 20 Q. Now, since we talked about this before and we've 21 agreed that employers shouldn't be discriminating 22 against their own employees, qualified employees on 23 account of a disability. Number one; right? 24 A. Uh-huh. 25 Q. And that employees can't -- may not do through a Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 13 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 13 (Pages 46 to 49) Page 46 1 contractual agreement what its prohibited from doing 2 directly. We agreed on that; right? 3 A. Correct. 4 Q. But as I understand this contract that's in 5 existence here between MVM and the United States 6 Marshals Service, if the USMS discriminates against 7 one of your CSOs on account of a disability and 8 directs MVM to remove that CSO, MVM complies; right? 9 MR. RECTOR: Object to the form of the 10 question. 11 A. We remove them as a CSO from the contract, yes. 12 Q. (By Mr. Griffin) Okay. And what remedy does the 13 CSO have, who feels that the third party who is 14 making the determination - in this case, 15 Dr. Goldhagen -- 16 A. Uh-huh. 17 Q. -- what remedy does one of your CSOs have when a 18 decision is made that they are not fit for duty 19 because of some medical issue? 20 A. Well, as far as MVM goes or as far as Dr. -- 21 whatever his name is? 22 Q. Any remedies at all. In other words -- 23 A. I mean I'm assuming if Dr. Goldsmith made a 24 mistake, he can file a complaint with the medical 25 board. But if he's got an issue with MVM and the Page 47 1 actions MVM has taken, he can file a grievance with 2 his union and take it up with his union and then 3 bring it to MVM. 4 Q. But you understand and MVM understands that 5 Congress has defined disability discrimination as 6 participating in a contractual arrangement with a 7 third party which then subjects a covered worker to 8 disability discrimination. You're aware of that? 9 A. Correct. 10 MR. RECTOR: Object to the form of the 11 question. 12 Q. (By Mr. Griffin) And we agree that employers are 13 not supposed to be doing that; right? 14 A. Correct. 15 Q. But as I understand it, this contract in effect in 16 this case does that very thing and delegates the 17 fitness for duty exams for CSOs to a third party, 18 does it not? 19 A. Not -- again, not in my view, no. 20 Q. Who does the fitness for duty exams for MVM 21 employees who are CSOs? 22 A. The U.S. Marshals. 23 Q. Okay. Not the employer? 24 A. Correct. 25 Q. That is done by a contract between the employer and Page 48 1 the third party, the USMS; right? 2 A. Correct. 3 Q. And as I understand it - and you can correct me if 4 I'm wrong - but in the contract it's delegated to 5 USMS, who then delegates it to FOH and ultimately to 6 an officer by the name of Goldhagen; right? 7 A. Okay. I'll agree with that. 8 Q. Okay. 9 THE VIDEOGRAPHER: Standby, all parties. 10 We're off the record for a tape change. 11 (A short break was taken.) 12 Q. (By Mr. Griffin) Let me ask this, if I might: In 13 terms of who was right, MVM or the USMS, about 14 whether or not David Keneipp was qualified, as we 15 sit here today, who was right? MVM or the USMS? 16 A. I don't know. Again, answering your question, he 17 was qualified at the time he was removed from the 18 contract -- 19 Q. Right. 20 A. -- in my view, because he was able to do the job. 21 Q. Okay. 22 A. I don't know -- again, I'm not a doctor. We don't 23 have a doctor. I don't know if he was unable to do 24 the essential functions of the job. 25 Q. Except from MVM's perspective, he was? Page 49 1 A. Correct. 2 Q. Okay. And have you seen anything from any source 3 that suggested to you that the FOH doctor was right, 4 that he was so limited that he was not able to 5 perform the essential functions of the job? 6 A. I don't know if he was right or wrong, no. I have 7 no -- 8 Q. And as I understand it, the way it works at MVM, 9 even though it keeps the medical files on all of its 10 CSOs, MVM would have no way of knowing how many CSOs 11 have been removed -- qualified CSOs have been 12 removed because of a disability; right? 13 A. Well -- 14 MR. RECTOR: Object to the form of the 15 question. 16 A. We would know how many people are removed because 17 they didn't meet the medical qualifications. 18 Q. (By Mr. Griffin) That's what I mean. You know 19 that, but because you don't review the medical 20 documentation, you don't know how many of those 21 decisions are right or how many of them are wrong. 22 MR. RECTOR: Object to the form of the 23 question. 24 A. Okay. 25 Q. (By Mr. Griffin) And what I'm saying -- and I'm Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 14 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 14 (Pages 50 to 53) Page 50 1 not accusing the USMS or FOH of doing this -- 2 A. Right. 3 Q. But if in each and every case they were 4 discriminating against one of your CSOs by removing 5 them even though they were qualified to perform the 6 essential functions of the job, that's something MVM 7 doesn't know because it doesn't review the physical 8 paperwork; right? 9 A. Can you repeat that? 10 Q. Sure. Regardless of how many of MVM's CSOs are 11 removed because of a disability -- 12 A. Uh-huh. 13 Q. -- MVM has no way of knowing which decisions are 14 right and which ones are wrong, because it doesn't 15 review the files on those individual CSOs; right? 16 MR. RECTOR: Object to the form of the 17 question. 18 A. Correct. 19 Q. (By Mr. Griffin) Even though the contract says 20 MVM -- or let me rephrase. 21 The contract says MVM keeps the medical files 22 on its CSOs; right? 23 A. Correct. 24 Q. Okay. And what I understand, the practice of MVM 25 is not to review those files? Page 51 1 A. Correct. 2 Q. Leaving it to the USMS as the only decider of 3 whether or not one of your CSOs is going to be 4 determined qualified or unqualified? 5 A. Under their standards, yes. 6 Q. Okay. And let me ask you this: Insofar as your 7 CSOs are concerned, what actions, if any, did MVM 8 take to protect Mr. Keneipp's federal right to be 9 free from disability discrimination? 10 MR. RECTOR: Object to the form of the 11 question. 12 A. Well, I'm -- I'm sure -- I'm still not aware that 13 he was discriminated for disability. I mean that's 14 the point. You're asking me what steps did we 15 take -- 16 Q. (By Mr. Griffin) To protect his right to be free. 17 A. -- to protect him. But I'm not sure he was, so 18 therefore, I'm not sure -- 19 Q. But I'm not asking -- 20 A. -- what you're asking. 21 Q. And I appreciate your assuring. I'm not asking you 22 whether he was or wasn't. 23 A. Right. 24 Q. My question is: What, in this case, did MVM do to 25 protect his right to be free from unlawful Page 52 1 disability discrimination? 2 A. I would say we didn't do -- I mean I would say 3 nothing. 4 Q. Okay. All right. And -- and that would be the 5 case -- well, let me put it this way: And that was 6 the case regardless of him sending Exhibit Number - 7 let's see. 8 A. I'm just -- 9 Q. Oh, 5. Here we go. Exhibit Number 5. 10 In other words, Exhibit Number 5 is something 11 that David Keneipp actually wrote to the Tulsa MVM 12 site supervisor and the 10th Judicial District MVM 13 program manager, among others, about his situation? 14 A. Uh-huh. Correct. 15 Q. And the letter finishes by saying that he wants to 16 continue as a CSO; right? 17 A. Correct. 18 Q. Okay. And he recites the history of the medical 19 requests and what he perceives is going on with 20 respect to his -- the review of his fitness for 21 duty; right? 22 A. Correct. 23 Q. Okay. And as I understand it - and you correct me 24 if I'm wrong - MVM did not respond to Mr. Keneipp in 25 any way after its receipt of this letter; right? Page 53 1 A. No, there was no response. 2 Q. Why not? 3 A. As I -- as I read it, I'm not -- A, I'm not sure 4 who the letter was directed at, because he CC'd a 5 number of organizations as well as individuals. 6 Q. But the top one is the -- 7 A. So -- 8 Q. Oh, I'm sorry. Go ahead. 9 MR. RECTOR: He can finish. 10 A. So that being said, I also -- in reviewing the 11 letter, to me, it's more of a complaint as to the 12 way the process is run. Not so much as to the exam 13 itself, but more the process as to how it's carried 14 out: The fact that he took an exam, he was given a 15 follow-up, that he was given another follow-up. 16 He's not happy with having to take these follow-ups, 17 as I read it. 18 MR. GRIFFIN: Okay. Let me object to the 19 nonresponsive portion of the answer. 20 THE WITNESS: Okay. 21 Q. (By Mr. Griffin) Is it generally MVM's practice 22 not to respond to letters written by its employees 23 who are CSOs? 24 MR. RECTOR: Object to the form of the 25 question. Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 15 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 15 (Pages 54 to 57) Page 54 1 A. If the letter is directed to MVM, MVM would 2 respond. 3 Q. (By Mr. Griffin) Okay. The top recipient -- in 4 other words, the letter is To Whom It May Concern; 5 correct? 6 A. Uh-huh, correct. 7 Q. And the top recipient of the letter is Tulsa MVM 8 site supervisor; correct? 9 A. Correct. 10 Q. The second recipient is the 10th Judicial District 11 MVM program manager? 12 A. Correct. 13 Q. The third is MVM HR? 14 A. Correct. 15 Q. Let me just ask you this: Did this letter make it 16 to your desk? 17 A. Yes. 18 Q. Okay. At the time it was sent? 19 A. Correct. 20 Q. And what was the decision about whether or not to 21 respond or acknowledge to Mr. Keneipp that the 22 letter was received? 23 A. Well, to start with, I -- my understanding is he 24 handed it to his supervisor, so he was aware -- he 25 was aware that MVM had it. There was no -- the Page 55 1 decision was that we would look into it and try to 2 figure out what the issue was. 3 As I said, after looking into it and reading 4 it and going over it, it was my understanding that 5 he was complaining about the system and how they 6 process it. We reached out -- when we got this, we 7 reached out to -- and by "we," I mean myself and the 8 operations manager or the operations director 9 reached out to the contracting officer at the U.S. 10 Marshals. 11 MR. GRIFFIN: Let me object to the 12 nonresponsive portion of the answer. 13 Q. (By Mr. Griffin) Who made the decision not to 14 respond to this letter on MVM's behalf? 15 A. I did. 16 Q. Okay. If your position was it was just a complaint 17 about the process, why didn't you write him back and 18 say that, instead of ignoring the letter? 19 A. Because again, my view of it is he is complaining 20 about a USMS process to USMS. 21 Q. I know that, but why didn't you tell him that if 22 that was your opinion? 23 A. Because I didn't think it was necessary. 24 Q. Why not? 25 A. Because I didn't think it was necessary. Page 56 1 Q. No, but why wouldn't you think it's necessary to 2 respond to one of your own workers -- 3 MR. RECTOR: Objection; asked and answered. 4 Q. (By Mr. Griffin) -- writing the letter? 5 I know you've made a conclusion that it wasn't 6 necessary. I'm asking you to tell the ladies and 7 gentlemen of the jury why you felt it wasn't 8 necessary. 9 A. I couldn't answer that. 10 Q. Okay. Is there anything in the letter that MVM 11 contends was not true in Mr. Keneipp's letter of 12 August the 23rd, 2014? 13 A. Not that I'm aware of. 14 Q. Okay. Let me show you Exhibit Number 7 and ask if 15 you can confirm that this is a list of the essential 16 functions of the CSO position that's in the contract 17 between US -- between MVM and the USMS. 18 MR. RECTOR: What exhibit number is this? 19 THE WITNESS: 7. 20 A. Okay. I'm sorry, what was the question? 21 Q. (By Mr. Griffin) I just wanted you to confirm that 22 is the list of the essential functions of the CSO 23 position contained in the contract between MVM and 24 the USMS. 25 A. I believe so, yes. Page 57 1 Q. Okay. 2 A. Do you want me to keep them together? 3 Q. Oh, yes. God bless you. Thank you. 4 And I want to make sure -- confirm -- just for 5 purposes of circling back, to your knowledge, the 6 USMS has not changed -- or let me rephrase the 7 question. 8 You're aware of no changes in the list of 9 essential functions for the CSO position other than 10 what you see there in Exhibit 7? 11 A. Correct. 12 Q. Okay. That is the list that you are aware of of 13 the essential functions of the job? 14 A. Yes. 15 Q. Okay. And if I asked this, I apologize. MVM 16 doesn't do any independent evaluation of its CSOs' 17 ability to perform the essential functions of the 18 job; right? 19 A. Correct. 20 Q. Under your contract with the USMS, even if MVM 21 thinks one of its CSOs is not impaired, where the 22 USMS and its physicians think otherwise, MVM removes 23 them from service as a CSO? 24 MR. RECTOR: Objection to the form of the 25 question. Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 16 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 16 (Pages 58 to 61) Page 58 1 Q. (By Mr. Griffin) Right? 2 A. Correct. I mean even if we had them tested and he 3 passed, if they want him removed, he is removed. 4 Q. Okay. And I don't -- I don't think the USMS is 5 doing this any longer, but if, for example, USMS has 6 a policy that says anybody with -- who has diabetes 7 who has an A1C above 8.0 - that's just a vague lab 8 value - that they are going to disqualify. Even if 9 MVM disagrees with it, even if MVM thinks it's not 10 right, MVM still is going to remove that CSO because 11 of the directive from the FOH doctor -- 12 MR. RECTOR: Object to the form -- 13 Q. (By Mr. Griffin) -- right? 14 MR. RECTOR: -- of the question. 15 A. Again, because of the directive from USMS. 16 Q. (By Mr. Griffin) Right. And that's under the 17 contract between MVM and the USMS? 18 A. Correct. 19 Q. Are there any - let's see if I can put this into 20 simple terms -- any roadblocks or impediments in the 21 event that USMS and FOH doctors are discriminating 22 against your CSOs because of disabilities? 23 MR. RECTOR: Object to the form of the 24 question. 25 A. I don't understand that question. Page 59 1 Q. (By Mr. Griffin) In other words, is there any -- 2 what roadblocks are there from -- from MVM's 3 perspective in the event that FOH doctors engage in 4 disability discrimination against MVM's CSOs? 5 MR. RECTOR: Same objection. 6 A. I'm not aware of any. 7 Q. (By Mr. Griffin) Okay. Who makes the decision at 8 MVM not to review MVM's CSO medical files for 9 fitness for duty? 10 A. At the -- at the time, I don't know. 11 Q. Well, that's still the practice today as I 12 understand it. Even though MVM keeps the medical 13 files, fitness for duty files on its CSOs, it never 14 looks at them. 15 A. Correct. 16 Q. My question is: Who makes the decision at MVM to 17 refuse to review those files? 18 MR. RECTOR: Object to the form of the 19 question and asked and answered. 20 A. Well, again, I don't know if anybody refuses. The 21 file -- the file comes in. The practice has been 22 the file comes in with the letters and they go into 23 a file. So whatever the paperwork is that comes in, 24 whether they're approved or disapproved, the 25 paperwork comes in and it goes into a medical -- it Page 60 1 goes into a file to be retained in accordance with 2 the contract. 3 Q. (By Mr. Griffin) Right. But when FOH or whoever 4 the designees are that determine that a CSO has to 5 be removed because of some medical situation, MVM 6 doesn't review it. 7 A. Correct. 8 Q. My question is: Who at MVM makes the decision not 9 to review those -- those -- those documents? 10 MR. RECTOR: Objection to the form of the 11 question. 12 A. If the question -- if I understand your -- you 13 correctly, if John Doe -- we get a -- we get a 14 disqualification for John Doe tomorrow and the 15 paperwork comes in, who makes the decision tomorrow 16 to not review that -- those medical documents? Is 17 that your question? 18 Q. (By Mr. Griffin) It's a practice, right, not to 19 review them? 20 A. Correct. So that's why I'm saying, if it's a 21 practice, it's not a decision every time to say, 22 "Well, let me see. Should we do this?" It's the 23 practice. It's -- the paperwork comes in; it gets 24 put into a file. 25 Q. Yeah. Page 61 1 A. There's no mental decision to say, "Let's not 2 review this." 3 Q. Who made the decision to engage in that practice? 4 A. That was my earlier answer. I don't know. I'm not 5 aware of it. 6 Q. All right. Let me ask it in this way, and I don't 7 mean to be respectful in any way by this question: 8 But as the employer of CSOs, how is it not turning a 9 blind eye to FOH doctors if MVM doesn't check the 10 work of those physicians when they make decisions 11 about your employees? 12 A. Again, getting back to my original statement: The 13 decision that we deal with and we handle is the 14 decision of the U.S. Marshals. Why they made the 15 decision, FOH or for whatever other reason, it's the 16 decision of the U.S. Marshals. If the U.S. Marshals 17 want to remove a CSO, they have the ability to 18 remove any CSO. 19 So it's not -- if we say yes, you know, "We 20 think he is physically capable," and they say, 21 "Okay. You're correct," they can still remove him 22 from the contract. They don't have to give us a 23 reason. So they have the ability to remove him for 24 any reason. 25 Q. I understand that. Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 17 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 17 (Pages 62 to 65) Page 62 1 A. Okay. 2 Q. But help me with this though: We understand what 3 the contract you guys entered into says. My 4 question is about reviewing the work of the party 5 that MVM contracts with, the marshals service. 6 A. Uh-huh. 7 Q. My question was: How is it not turning a blind eye 8 to the USMS's decisions about your employees if MVM 9 doesn't check their work? 10 MR. RECTOR: Object to the form of the 11 question, also asked and answered. 12 A. Again, I -- assuming for the -- I don't see it as 13 turning a blind eye for the simple fact that, 14 assuming we had him retested, MVM had him retested, 15 or MVM reviewed the documents, the decision of the 16 U.S. Marshals is what dictates, and they've removed 17 him from the contract. So ... 18 Q. (By Mr. Griffin) Right. But if the marshals 19 service asks you -- 20 A. Uh-huh. 21 Q. -- as MVM to help them get it right by addressing 22 concerns and questions to them, how can MVM do that 23 if it doesn't review its own CSO's medical files? 24 MR. RECTOR: Object to the form of the 25 question. Page 63 1 A. I wouldn't agree with the categorization that the 2 U.S. Marshals asked us to help them get it right. 3 Q. (By Mr. Griffin) Would you mind reading the -- 4 A. Sure. 5 Q. And I don't mind -- I'm not trying to put you on 6 the spot. 7 A. No, that's fine. 8 Q. Would you read the concluding paragraph of the 9 letter that the marshals service sent to Ms. Naman 10 concerning Mr. Keneipp, Exhibit Number 3? 11 A. "If you have any questions or concerns regarding 12 this decision, please contact the Acting Assistant 13 Chief, Phillip Cornelius, Office of Court Security." 14 Q. Right. And the decision being referred to that the 15 marshals service is asking MVM to offer concerns 16 about is what? What decision is it they're 17 referring to? 18 A. To remove Mr. Keneipp. 19 Q. And my question is: MVM has made a decision not to 20 review those fitness for duty files, so it would be 21 in no position to offer any concerns about the 22 validity of the USMS decision; isn't that right? 23 A. Correct. 24 Q. And in this case, for example, because MVM doesn't 25 review medical files, it would be in no position to Page 64 1 help the USMS by telling them that the physicians 2 had already cleared Mr. Keneipp for full duty, high 3 aerobic, high stress activities after his back 4 surgery in 2000 -- 5 MR. KENEIPP: '11. 6 Q. (By Mr. Griffin) -- '11; right? 7 MR. RECTOR: Objection as to the form of the 8 question; assumes facts not in evidence; calls for 9 speculation; misstates testimony. 10 MR. GRIFFIN: Object to sidebar. 11 A. Can you repeat the question? 12 Q. (By Mr. Griffin) Sure. Because MVM doesn't review 13 its own CSOs' medical files, it is unaware -- it was 14 unaware when the -- Exhibit Number -- 15 A. 3. 16 Q. -- 3 was written, that its own worker had already 17 been cleared for duty with respect to his back and 18 his heart; right? 19 A. Correct. 20 Q. Okay. And if we look at, for example, Exhibit 21 Number 11, the fitness for duty file. I won't take 22 long with you. I'll just say it is the practice of 23 MVM not to review those files on their own CSOs; 24 right? 25 A. Correct. Page 65 1 Q. Right. In other words, when this happened, MVM, 2 because it doesn't review the files, was not aware 3 that the physician hired by MVM had declared 4 Mr. Keneipp fit for duty and not having any 5 conditions that would interfere with full 6 performance of his CSO duties; right? 7 A. Correct. 8 Q. And would have no way of knowing, because they 9 don't review the record, that, in 2013, November the 10 18th, 2013, that the examining physician had said 11 there were no contraindications to Mr. Keneipp's 12 performance of aggressive security activities; 13 right? 14 A. Correct. 15 Q. Likewise, with respect to Exhibit Number 12, 16 because MVM does not review its CSOs' medical 17 files -- 18 MR. RECTOR: Counsel, can I see a copy? 19 MR. GRIFFIN: Yes. 20 Q. (By Mr. Griffin) -- it was not aware that, when he 21 was fired, Mr. Keneipp had already been cleared for 22 full duties without restrictions with respect to his 23 back; right? 24 A. I'm not sure we would have had this in his medical 25 file. Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 18 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 18 (Pages 66 to 69) Page 66 1 Q. Well, I will represent to you that it's part of the 2 CSO fitness for duty file. 3 A. Okay. 4 Q. And -- in any event, what I'm saying is that 5 because MVM doesn't review its CSOs' medical files, 6 it wouldn't know the actual recommendations made by 7 the examining physicians? 8 A. Correct. 9 Q. So what date was on Exhibit 12 concerning his back? 10 Do you see that in front of you? Can you tell the 11 ladies and gentlemen of the jury what the date is 12 when he was cleared for his back? 13 A. December 19th, 2011. 14 Q. Okay. Let's look at Exhibit Number 13 and ask if 15 you can tell us what that is. 16 A. It's a memo from Medical Processing Department. 17 Q. No problem. This particular memo, as I understand 18 it, is written by MVM's predecessor, AKAL. 19 A. Correct. 20 Q. All right. Did AKAL leave the fitness for duty 21 reviews with MVM for its CSOs when the contract 22 transitioned? 23 A. That, I do not know. 24 Q. Well, do you have the complete medical records on 25 your CSOs or did AKAL take them with them when they Page 67 1 left? 2 A. I'm not aware. 3 Q. Okay. Can we confirm, though, that on April the 4 8th, 2013, that - if you'll look at the Bates stamp 5 number 55 on the lower right-hand corner of the 6 page - that it was confirmed on this form, on April 7 the 22nd, 2013, that Mr. Keneipp had healthy cardiac 8 status? 9 A. That's what it says. I mean I don't know if he did 10 or he didn't, but that's what it says. 11 Q. No, you're right. I'm not arguing about medicine. 12 A. Right. 13 Q. I'm just trying to confirm that the doctor -- 14 that's what the doctor confirmed. 15 A. That's what it says on the form. 16 Q. Right. And it also confirms the interpretation of 17 the EKG that there was nondiagnostic Q-waves in 18 leads III -- and then I can't read it. Right? 19 A. That's what it says, yeah. 20 Q. Okay. And then under Section C, he reports that he 21 has a normal ECHO and normal -- I can't read the 22 rest of it. But am I -- to the extent that I did 23 read, is that the way it looks to you as well? 24 A. That's what it says, yes. 25 Q. Okay. And then it says normal stress test; right? Page 68 1 A. That's what it says, yes. 2 Q. Finally, there's a question about medical 3 significance of the findings. And what does the 4 doctor say? 5 A. The note on the form says "none." 6 Q. And then there's a section on limitations of 7 activities or contraindications to vigorous -- I 8 can't read what the rest of it is. What does it 9 say? 10 A. It states "none." 11 Q. Okay. When did MVM take over providing CSOs within 12 the 10th Circuit? 13 A. November 1st, 2013. 14 Q. Okay. Well, let's move to Exhibit Number 11 then. 15 MR. GRIFFIN: Mike, do you have that over 16 there? Number 11? 17 MR. RECTOR: And I believe we already have a 18 Plaintiff's Exhibit 11, or am I making that up? 19 Q. (By Mr. Griffin) Do you see 11 in front of you? 20 THE WITNESS: Yeah, that's what he's talking 21 about. 22 MR. RECTOR: Oh, okay. 23 Q. (By Mr. Griffin) This examination, this fitness 24 for duty file was compiled when MVM had already come 25 on board; correct? Page 69 1 A. Correct. 2 Q. And was it this examination that ended up causing 3 him to be terminated in 2014? Was it this year's 4 annual fitness exam that got him removed? 5 MR. RECTOR: Object to the form of the 6 question. 7 Q. (By Mr. Griffin) Do you follow what I'm asking? 8 A. I follow what you're asking. My answer is I don't 9 know. 10 Q. Okay. All right. Exhibits 13, 11, and 15 -- 11 A. I don't have a 15. 12 Q. Okay, good. Thank you for correcting me. 13 Exhibits 12, 13, and 11, none of those have 14 you seen before? 15 A. Correct. 16 Q. And it is the practice of MVM that no one else at 17 MVM having reviewed any of these documents; correct? 18 MR. RECTOR: Object to the form -- 19 A. Well -- 20 MR. RECTOR: -- of the question. 21 A. -- if the question is has anybody reviewed them, 22 the answer is yes, nobody has reviewed them. 23 If the question is has anybody seen them, then 24 my assumption is, if they're in a file, somebody may 25 have seen them. I don't know. Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 19 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 19 (Pages 70 to 73) Page 70 1 Q. (By Mr. Griffin) I'm talking about reviewing. I 2 think we're communicating. 3 A. Okay. Then the answer is no, no one has reviewed 4 them. 5 Q. Fair enough. Okay. Likewise, if we look at 6 Exhibit Number 15, what I hear you saying, even 7 though they have MVM letterhead on the -- on the 8 documents, these just go in an MVM file and they're 9 not reviewed by anybody? 10 A. Correct. 11 Q. So since MVM doesn't review these documents, no one 12 at MVM would really have an awareness that, on page 13 310, the cardiologist had ruled out any significance 14 in the EKG from 2000 -- 15 MR. KENEIPP: '13. 16 Q. (By Mr. Griffin) '13. 17 MR. GRIFFIN: Thank you. 18 A. If that -- I don't know if he did or he didn't. 19 All I can say is that nobody has reviewed this. 20 Q. (By Mr. Griffin) Okay. Great. If somebody had 21 reviewed this -- for example, if MVM had a practice 22 to actually review fitness for duty files -- 23 A. Right. 24 Q. -- and had already become aware that the EKG was 25 not clinically significant and that the CSO was not Page 71 1 affected in any way and had a good heart, then MVM 2 would have been in a position to address a concern 3 to the United States Marshals Service in the event 4 the marshals service determines that their heart is 5 not good enough to work. 6 MR. RECTOR: Objection -- 7 Q. (By Mr. Griffin) Right? 8 MR. RECTOR: -- to the form of the question. 9 A. Not necessarily, no. 10 Q. (By Mr. Griffin) How not? If you -- in other 11 words, if you're aware of something subjectively, 12 MVM, that the marshals service has made a mistake -- 13 A. Uh-huh. 14 Q. -- as I understand it, you said you would tell 15 them? 16 A. Correct. 17 Q. Right. But since MVM doesn't review this file, 18 they're not in a position to be able to address 19 concerns; right? 20 MR. RECTOR: Objection to the form of the 21 question. They don't review medical records. He 22 has -- 23 MR. GRIFFIN: Object to the side -- 24 MR. RECTOR: -- testified -- 25 MR. GRIFFIN: Object to the sidebar. Page 72 1 MR. RECTOR: At this point, you're harassing 2 the witness. 3 MR. GRIFFIN: Don't speak, please. Only make 4 your objections to form. Thank you. 5 Q. (By Mr. Griffin) Now, isn't that true, because MVM 6 has a practice of not reviewing the actual fitness 7 for duty files, they're not in a position to address 8 a concern to the USMS in the event the USMS makes 9 mistakes with regard to fitness for duty? 10 MR. RECTOR: Objection to the form of the 11 question. 12 A. Correct. 13 Q. (By Mr. Griffin) And the date on Exhibit Number 15 14 is what? 15 A. May 5th, 2014. 16 Q. Okay. And turning then to Exhibit Number 16, can 17 we tell that, on August the 22nd, 2014, that the 18 cardiologist has confirmed that the -- that 19 Mr. Keneipp does have the ability to perform at a 20 high intensity physical exertion level? On the 21 bottom of the second page. 22 A. Yes. 23 Q. Okay. And on the next page, does the cardiology -- 24 cardiologist confirm that there are no 25 contraindications for Mr. Keneipp's performance of Page 73 1 high intensity physical exercise? 2 A. Yes. 3 Q. All right. And let me ask you this: The reason 4 why MVM has asked him -- asked Mr. Keneipp to have 5 this form filled out by his cardiologist is because 6 the USMS asked MVM to do that; right? 7 MR. RECTOR: Object to the form of the 8 question. 9 A. Correct. 10 Q. (By Mr. Griffin) Okay. In other words, the USMS 11 or FOH doesn't communicate directly with your CSOs; 12 it communicates to you, MVM, who then communicates 13 to the CSO that they need their cardiologist to go 14 get the form filled out? 15 A. FOH doesn't communicate with us. But to answer 16 your question: USMS communicates to us; we 17 communicate to the employee. 18 Q. Exactly. And the employee then goes to the 19 cardiologist and has the form filled out? 20 A. Correct. 21 Q. And that's what Mr. Keneipp did? 22 A. I assume so, yes. 23 Q. All right. And we can tell from the cardiologist's 24 confirmation that the -- at the request of the USMS, 25 the cardiologist has determined that Mr. Keneipp is Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 20 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 20 (Pages 74 to 77) Page 74 1 able to subdue physically attacking people; right? 2 A. Correct. 3 Q. And that he can physically control violent and 4 unruly crowds; right? 5 A. Correct. 6 Q. That he can respond to emergencies with unplanned 7 strenuous activity? 8 A. Correct. 9 Q. And can run up or down stairs at least two to three 10 flights in pursuit of an emergency? 11 A. Correct. 12 Q. Okay. And until today, MVM was not aware of this; 13 right? 14 A. Correct. 15 Q. Okay. Same question for Exhibit 17 that, until 16 today, MVM was not aware that, on August the 6th, 17 2014, that it was determined that Mr. Keneipp has no 18 abnormal EKG changes, has normal -- 19 MR. RECTOR: Counsel, if you're -- can I have 20 a copy of the exhibit? 21 MR. GRIFFIN: Sure. 22 Q. (By Mr. Griffin) Well, that the conclusions are 23 all normal. Until today, MVM was not aware of that? 24 A. Until today, I don't think anybody has reviewed 25 this. Page 75 1 Q. Okay. From MVM you're talking about? 2 A. Correct. 3 Q. Okay. 4 MR. RECTOR: What exhibit number is that? 5 THE WITNESS: 17. 6 Q. (By Mr. Griffin) I beg your pardon. Thank you for 7 that. 8 Let me show you 18. And it appears to me that 9 18 is MVM's re -- transmitting to the USMS the 10 results of the answers to the questions we just 11 looked at. 12 A. I would say correct; yes. 13 Q. All right. Is MVM aware of anything that 14 Mr. Keneipp did wrong with respect to his being 15 removed as a CSO? 16 A. No, not that I'm aware of. 17 Q. Was there anything that the USMS or MVM asked him 18 to give them that he didn't give them? 19 A. Not that I'm aware of. 20 Q. Okay. Let me show you what has been marked as 21 Exhibit 19 and -- well, that's actually -- as I 22 understand it, that's a letter you wrote, now that I 23 see your name is on it. 24 A. Yeah, I wrote it. 25 Q. That's you. Page 76 1 A. Yep. 2 Q. Okay. And this is what you guys sent to the EEOC? 3 A. Correct. 4 Q. Okay. Let me ask you first: With respect to 5 number 2, the question is now 2400, not 1600. 6 A. Correct. 7 Q. Okay. And on number 3, when EEOC asks for an 8 organization chart, why did you decline to provide 9 that information to the EEOC? 10 A. I didn't believe it was relevant to the issue at 11 hand. 12 Q. Okay. All right. And does MVM have written 13 contracts with FPS, ICE, and Social Security 14 Administration? 15 A. Yes. 16 Q. Okay. Let me show you what has been marked as 17 Exhibit 20. Well, let me ask you: What is Exhibit 18 20? 19 MR. RECTOR: I would object to this to the 20 extent it's an incomplete document. I don't know 21 what this is a part of. 22 MR. GRIFFIN: Object to the sidebar. 23 A. Based on looking at it, it looks like it has come 24 out of the handbook, but I don't know if it did or 25 it didn't. Page 77 1 Q. (By Mr. Griffin) All right. As I understand it - 2 and you tell me if I've got this right - that 3 because of the contract between MVM and the United 4 States Marshals Service, when the FOH doctors 5 determined that Mr. Keneipp's back disqualified him 6 from serving as a CSO, MVM deferred to the marshals 7 service and removed him from his CSO position? 8 A. Again, we didn't -- we didn't defer to the decision 9 of FOH. U.S. Marshals instructed us to remove him 10 as a CSO. That's what we did. 11 Q. Right. But you did that because the U.S. Marshals 12 Service wrote you and said that he had a medical 13 condition that made him not comply with the 14 contract; right? 15 A. We -- 16 MR. RECTOR: Object to the form of the 17 question. 18 A. We would have done it regardless of the reason 19 they -- they told us. If they tell us to remove 20 somebody, we remove the person. Again, this one 21 happened to say the additional information about the 22 medical qualifications. However, if they tell us to 23 remove somebody, we remove them. 24 Q. (By Mr. Griffin) So MVM accepts the risk, if you 25 will, that its employees will be removed on the Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 21 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 21 (Pages 78 to 81) Page 78 1 basis of USMS's determinations of whether or not 2 that CSO's medical condition renders them unfit for 3 duty. 4 MR. RECTOR: Objection to the -- 5 Q. (By Mr. Griffin) Right? 6 MR. RECTOR: -- form of the question. 7 A. Again, I'm not sure what the question is. 8 Q. (By Mr. Griffin) Because of the contract MVM has 9 with the marshals service, the marshals service has 10 the final say on whether or not one of MVM's CSOs 11 has a medical condition that renders them fit or 12 unfit for duty? 13 A. I would say correct. 14 Q. All right. And there's nothing that MVM does in 15 the event that the FOH doctors or USMS removes a CSO 16 on account -- a qualified CSO on account of a 17 disability; right? 18 MR. RECTOR: Objection to the form of the 19 question. 20 A. Correct. 21 Q. (By Mr. Griffin) Let me ask you this: Has anyone 22 from the EEOC reached out to MVM with respect to the 23 contractual provisions in Exhibit 6 which defers to 24 the USMS decisions on MVM's CSOs on whether or not 25 they will be declared medically unfit or fit for Page 79 1 duty? 2 MR. RECTOR: Objection. And I would say, to 3 the extent that this attempts to solicit information 4 about responsibilities or conversations you've had 5 unrelated to this case in your capacity as general 6 counsel, to not answer those questions. 7 Q. (By Mr. Griffin) I am asking you about 8 non-attorney-client privileged conversations you've 9 had with the EEOC about these provisions. 10 A. No. 11 Q. There have been none? 12 A. None. 13 Q. Okay. You're aware of no systemic investigation by 14 the EEOC of the provisions deferring to the 15 USMS fitness for duty evaluations for MVM's CSOs? 16 A. I'm aware of no investigation. 17 Q. All right. 18 A. And if there is one, let me know. 19 Q. Okay. I'm not sure about MVM, so I don't want to 20 say any more. No problem. 21 A. By all means, let me know. 22 MR. RAHHAL: Watch what you wish for. 23 THE WITNESS: Let me ask: Assuming we get up 24 to 4:00 -- 25 MR. GRIFFIN: You're just going to tell me Page 80 1 when you need to go and I'm going to let you go. 2 You just say the word when you need to go. I'm not 3 going to keep you any -- I don't want to make -- 4 cause you any inconvenience. So you just say when. 5 THE WITNESS: Okay. Well, I mean if I'm going 6 to have to come back again, then -- 7 MR. GRIFFIN: You just say the word. 8 THE WITNESS: -- I would like to go to the 9 bathroom. 10 MR. GRIFFIN: Is 4:00 okay with you? 11 THE WITNESS: Yes. If we go up to 4:00 and 12 we're done and that's it, then I won't take a break. 13 But if we're going to have to come back, then I'll 14 just take a break now. 15 MR. GRIFFIN: When you say come back, you will 16 probably have to come back at a date in the future. 17 THE WITNESS: Okay. 18 MR. GRIFFIN: So if you need to go to the john 19 now -- 20 THE WITNESS: Well, I better go to the 21 bathroom now. 22 MR. GRIFFIN: Yeah, you go. 23 (A short break was taken.) 24 Q. (By Mr. Griffin) As we sit here today, what is 25 MVM's understanding of the USMS's determination that Page 81 1 Mr. Keneipp was unfit for duty? 2 A. From the lawsuit itself, it was that his -- he had 3 a bad back. 4 Q. Okay. All right. And up until you read the suit 5 papers or MVM was aware of the suit papers, they 6 didn't know or wasn't aware because they hadn't 7 reviewed any of the paperwork to know that it was 8 the bad back -- the alleged bad back that was what 9 was motivating USMS to declare him unfit; right? 10 A. Correct. 11 Q. Okay. And as I understand it from talking to you 12 earlier today, that it is an established practice at 13 MVM not to review those fitness for duty 14 determinations; right? 15 A. Correct. I mean, at best, they look at it to make 16 sure that it has the right name. But no, they don't 17 review it. 18 Q. Okay. And I've asked you also why that is and 19 you've given me your best answer to that; right? 20 A. Correct. 21 Q. And to this date, May the -- 22 A. 25th. 23 Q. -- 25th, 2014 [sic], it is still an established 24 practice of MVM not to review fitness for duty 25 determinations made by the USMS of your CSOs? Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 22 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 22 (Pages 82 to 85) Page 82 1 A. Correct. 2 Q. Okay. Let me show you what has been marked as 3 Exhibit Number 22 and I -- 4 MR. GRIFFIN: You've got a copy? 5 MR. RECTOR: Yeah, I've got a copy. Which 6 Bates? Yeah, I've got it. 7 Q. (By Mr. Griffin) And I would like you, if you 8 don't mind, to confirm that this is a collective 9 bargaining agreement between MVM and the United 10 States court security officers. 11 A. Correct. 12 Q. And as I understand it, the term of this contract 13 is 2014 to '17? 14 A. Give me one second. Yes. 15 Q. Okay. If we turn to page 17 -- and let me know 16 when you're there in Section D. 17 A. Section -- okay. I'm here. 18 Q. It says the union recognizes that USMS can deny an 19 employee an opportunity to work; right? 20 A. Correct. 21 Q. Then it has this sentence: "The company agrees to 22 review each denial and request for the removal made 23 by the USMS to ensure accuracy, fairness, and 24 consistency with the contract." Do you see that? 25 A. Correct. Page 83 1 Q. "The company" is referring to who? 2 A. I'm not sure I understand the question. 3 Q. When it says "the company" agrees to review each 4 denial of the USMS of one of your CSOs, I'm asking 5 who this sentence refers to when it says "the 6 company agrees to review." 7 A. MVM. 8 Q. Okay. 9 A. Anything in this letter that refers to "the 10 company," that's MVM. 11 Q. Why, in light of -- in light of this provision -- 12 this says, "The company agrees to review each denial 13 and request for removal by the USMS to ensure 14 accuracy, fairness, and consistency," why isn't that 15 being done? 16 MR. RECTOR: Objection to the form of the 17 question. 18 A. Well, again, I don't know if I agree that it's not 19 being done. It's -- the understanding of MVM is 20 going to review it; they're making sure it's the 21 right person. 22 Q. (By Mr. Griffin) Get the name right? 23 A. Get the name right, yeah. 24 Q. That's what you told me -- 25 A. Correct. Page 84 1 Q. That's what you told me before. 2 A. Correct. I mean they got the right -- 3 Q. How does getting the name right ensure accuracy, 4 fairness, and consistency? 5 A. It doesn't -- it doesn't -- it doesn't deal with 6 fitness [sic] and consistency, it deals with 7 accuracy. It's the -- it's the right person. 8 Q. Okay. Let's put it this way -- and I'm not 9 throwing any rocks here. I just want to establish 10 this: That nobody at MVM reviewed USMS's position 11 about Mr. Keneipp with respect to its fairness or 12 even its legality; right? 13 MR. RECTOR: Objection to the form of the 14 question. 15 A. I would disagree as to the legality of it, but -- 16 we haven't -- we didn't review the medical 17 determination. As far as the legality of it, in 18 MVM's view, which is my view, because I'm the legal 19 counsel -- 20 Q. (By Mr. Griffin) Right. 21 A. -- if USMS wants to remove an individual from the 22 contract, they are legally permitted to do so. 23 Q. Under your contract with USMS? 24 A. Correct. 25 Q. I understand that. I understand that. Page 85 1 A. Then that's -- 2 Q. But from your workers' perspective though, I want 3 to make sure that we're not miscommunicating. At no 4 point did MVM review the disqualification given to 5 MVM by the United States Marshals Service for 6 fairness or legality; right? 7 A. Well, again, I'm not sure. It doesn't say that 8 we're required to review it for legality. We're 9 splitting hairs, but if you're going to ask me if 10 that's what it says, that's not what it says. 11 Q. No, I'm not asking you what this contract says. 12 A. Right. 13 Q. I'm just asking as a factual matter. MVM never 14 reviewed in any way USMS's perception of his fitness 15 for its, A, fairness; right? 16 A. Okay. 17 MR. RECTOR: Objection to the form of the 18 question. 19 Q. (By Mr. Griffin) Second, MVM did not review the 20 USMS's perception as to his abilities -- 21 MR. RECTOR: Object -- 22 Q. (By Mr. Griffin) -- right? 23 MR. RECTOR: Objection to the form of the 24 question. 25 A. Correct. Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 23 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 23 (Pages 86 to 89) Page 86 1 Q. (By Mr. Griffin) And did not review it with 2 respect to its compliance with the Americans with 3 Disabilities Act either -- 4 MR. RECTOR: Same -- 5 Q. (By Mr. Griffin) -- did it? 6 MR. RECTOR: Same objection. 7 A. Correct. 8 Q. (By Mr. Griffin) Because the contract that exists 9 between MVM and USMS obligated MVM to remove him. 10 A. If they instructed us to remove him, we removed 11 him. Correct. 12 Q. Okay. What was the - if there was any - and tell 13 me, what, if any, was the business necessity of the 14 marshals service -- I mean, excuse me, of MVM 15 signing a contract with the marshals service that 16 gave the marshals service the final say-so in 17 whether or not CSOs with disabilities would be 18 declared fit or unfit? 19 MR. RECTOR: Objection as to the form of the 20 question. 21 A. What is the business necessity? Is that -- can you 22 repeat the question? 23 Q. (By Mr. Griffin) Sure. What business necessity, 24 if there was one, for MVM entering into a contract 25 with the marshals service that subjected MVM Page 87 1 employees who were CSOs to fitness for duty 2 examinations by the marshals service? 3 MR. RECTOR: Objection to the form of the 4 question. 5 A. The only business necessity is that's what the 6 contract dictated. Now, if I under -- again, I'm 7 not understanding your question. So if you want to 8 repeat it; otherwise, I'll try and answer it. 9 Q. (By Mr. Griffin) Right. For you, for example. 10 The marshals service doesn't dictate whether you are 11 able to perform the essential functions of your job; 12 right? 13 A. Correct, because I don't work on their contract. 14 Q. Exactly. You're not subject to that contract? 15 A. Correct. 16 Q. MVM itself determines whether you're qualified to 17 work or not? 18 A. Correct. 19 Q. Right. What was the business necessity in giving 20 up your CSOs' fitness for duty examinations to the 21 marshals service? 22 MR. RECTOR: Object -- 23 Q. (By Mr. Griffin) What was the business necessity 24 entering into a contract that treats him differently 25 than you? Page 88 1 MR. RECTOR: Objection as to the form of the 2 question. 3 A. Because he's working under a contract, and the 4 contract dictates the standards. 5 Q. (By Mr. Griffin) Right. But we're going in a 6 circle. 7 A. I know, but you're asking the same question. 8 Q. I know what the contract says and you and I, we 9 agree on what it says. 10 A. Yeah, we've both read it a hundred times. I get 11 it. 12 Q. But what's the business necessity of agreeing -- 13 for MVM agreeing to that arrangement? 14 MR. RECTOR: Objection to the form of the 15 question. 16 A. I'm not aware of a business necessity, as I 17 understand your question. 18 Q. (By Mr. Griffin) Okay. All right. And we talked 19 about this before: If MVM didn't want to 20 participate in such an arrangement, it could have 21 elected not to submit a proposal and sign a 22 contract; right? 23 A. Again, the assumption is that it was in there, so 24 yes. The answer is yes. We didn't know it was in 25 there until we got the contract. Page 89 1 Q. Okay. And with respect to mistakes, what measures, 2 if any, does MVM take to correct mistakes that are 3 made by the marshals service and its designees when 4 it comes to disqualifying MVM CSOs with 5 disabilities? 6 A. Again, if we're aware of a mistake, we would 7 address it to the marshals and let them know what we 8 believe the mistake to be. 9 Q. Right. But because of the established procedure at 10 MVM, it is not aware of mistakes because it doesn't 11 review those files; correct? 12 A. We're not aware of those mistakes, correct. 13 Q. And even after Mr. Keneipp wrote to MVM about the 14 mistakes that were being made by FOH, as I 15 understand it, even then MVM did not review 16 Mr. Keneipp's medical file. 17 MR. RECTOR: Objection to the form -- 18 Q. (By Mr. Griffin) Right? 19 MR. RECTOR: -- of the question. 20 A. Again, I've read the letter and I'm not aware of 21 where he's informing us of mistakes. I read the 22 letter to where he's informing us that he doesn't 23 agree with the process. 24 Q. (By Mr. Griffin) Let's talk about the letter, 25 specifically about the mistakes. Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 24 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 24 (Pages 90 to 93) Page 90 1 A. What number? 2 Q. Exhibit 5. Thank you. 3 A. Uh-huh. 4 Q. Let's go through. You've already said there's 5 nothing in his letter that you thought was untrue; 6 right? 7 A. Correct. 8 Q. All right. He confirms that he passed his 2013 9 physical exam with no follow-up; correct? 10 A. I would say okay. 11 Q. Did MVM review any of Mr. Keneipp's file to 12 determine whether or not any of what he has said 13 there is true? 14 A. Yes. 15 Q. What files were reviewed by MVM when it received 16 this letter? 17 A. What was -- what was reviewed was the medical file, 18 but not the contents of the file. We reviewed the 19 dates and the times that were -- the requests were 20 made. If he was requested to make a certain -- have 21 a follow-up exam at a certain date, we checked to 22 make sure that was accurate. If he had the 23 follow-up exam and it was submitted, we checked to 24 make sure that was accurate. He goes through and he 25 talks about the certain times and dates that he went Page 91 1 through stuff, and that's what we did. We checked 2 the times and dates. We didn't check, again, the 3 content of what the exam was. 4 Q. Okay. So we could be -- where he says that the 5 exam confirmed there was nothing wrong with his 6 physical, you did -- MVM did nothing to verify that 7 or check that out? 8 A. Correct. 9 Q. Okay. 10 A. So when you ask me -- when you ask me if it's 11 accurate, I assume it's accurate. I don't -- I 12 don't know if it's accurate or not. I mean I assume 13 it is. 14 Q. Other than what you described, did MVM take any 15 action as a result of this letter other than 16 confirming the dates, as you just described? 17 A. Yeah. We forwarded it on to the U.S. Marshals. 18 Q. And what was -- 19 A. The contract -- the contract officer. 20 Q. And what did they respond by saying? 21 A. They said pretty much the same thing; they would 22 look into it. 23 Q. And what was the -- what was the outcome of the -- 24 whatever you said they said about looking into it? 25 A. The process didn't change. Page 92 1 Q. Okay. Do you see on there where Mr. Keneipp 2 confirms that his back pain was taken care of by his 3 surgery in 2010 and he has no recurring problems at 4 all? Do you see that? 5 MR. RECTOR: Objection to the -- 6 A. Help me -- 7 MR. RECTOR: -- form of the question. 8 Q. (By Mr. Griffin) Bottom of the page. 9 A. Help me out. 10 Q. 416, on the right-hand corner. 11 A. "All my back pain was taken care of," is that what 12 you're talking about? 13 Q. Yeah, and that he has no recurring problems. 14 A. Yeah, I see it. 15 Q. As I understand it, when MVM got this letter, it 16 did nothing more with his medical file other than to 17 confirm dates of transmission of documents. 18 A. With regard to his medical file, correct. 19 Q. Okay. And because of MVM's contract with the 20 marshals service, even if he could do anything he 21 wanted to do, including hiking and riding 22 motorcycles, it doesn't matter, in MVM's situation, 23 because its contract with the marshals service says 24 it has to remove a CSO when the USMS tells them to. 25 MR. RECTOR: Objection to the form of the Page 93 1 question. 2 A. Correct. 3 MR. GRIFFIN: Okay. I'll tell you, we'll 4 break now if that's okay, if it's a logical time for 5 you to get to the airport. 6 THE WITNESS: Okay. Sure. 7 MR. GRIFFIN: You'll be there ten minutes 8 early. Hopefully that will make the traffic -- 9 Oh, we can go off the record first. 10 11 (DEPOSITION ADJOURNED) 12 (SIGNATURE REQUESTED) 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 25 of 26 Christopher McHale David L. Keneipp v. MVM, Inc. 918-550-8086 Russell Court Reporting, Inc. 25 (Page 94) Page 94 1 C E R T I F I C A T E 2 3 STATE OF OKLAHOMA ) ) ss. 4 COUNTY OF TULSA ) 5 6 7 I, Ashley Ballard, a Certified Shorthand 8 Reporter in and for the State of Oklahoma, do hereby 9 certify that the above-named witness was by me first 10 duly sworn to testify the truth and nothing but the 11 truth in the case aforesaid; that said deposition of 12 CHRISTOPHER McHALE was taken by me in stenograph on the 13 25TH day of MAY, 2016, and thereafter reduced to 14 typewritten form under my supervision; and that I am 15 not an attorney for, nor relative of any of the parties 16 involved in this action or otherwise interested in the 17 event of same. 18 WITNESS my hand at Tulsa, Oklahoma, this 9TH 19 day of JUNE, 2016. 20 21 _____________________________ Ashley Ballard, CSR 22 CSR NO: 1986 Expires 12/31/16 23 24 25 Case 4:15-cv-00565-JED-TLW Document 36-1 Filed in USDC ND/OK on 10/18/16 Page 26 of 26 Exhibit 2 Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 1 of 22 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA DAVID L. KENEIPP * * VS. * C. A. NO. 4:15-CV-0056 * MVM, INC. * ******************************************************** ORAL AND VIDEOTAPED DEPOSITION OF CHRISTOPHER MCHALE TAKEN ON JULY 8, 2016 ******************************************************** ORAL AND VIDEOTAPED DEPOSITION OF CHRISTOPHER MCHALE, produced as a witness at the instance of Plaintiff(s), and duly sworn, was taken in the above-styled and numbered cause on July 8, 2016 from 10:00 a.m. to 12:47 p.m., before JENNIFER L. KARL, CSR in and for the State of Texas, recorded by machine shorthand, at the offices of Marek, Griffin & Knaupp, 203 N. Liberty Street, Victoria, Texas, pursuant to the Federal Rules of Civil Procedure and the provisions stated on the record or attached hereto; that the deposition shall be read and signed under penalties of perjury. (COPY) Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 2 of 22 2 (Pages 2 to 5) Page 2 1 A P P E A R A N C E S 2 3 FOR THE PLAINTIFF(S): 4 MICHAEL NEUERBURG Marek, Griffin & Knaupp 5 P.O. Box 2329 Victoria, Texas 77902 6 7 FOR THE DEFENDANT(S): 8 JONATHAN G. RECTOR Littler Mendelson, PC 9 2001 Ross Avenue, Suite 1500 Dallas, Texas 75201 10 11 VIDEO TECHNICIAN: 12 MICHAEL PAGE, Video Data Services of Victoria 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 1 I N D E X 2 PAGE 3 Examination 4 By Mr. Neuerburg 4 5 Examination By Mr. Rector 75 6 7 EXHIBIT INDEX 8 EXHIBIT NUMBER PAGE 9 23 Defendant MVM, Inc.'s Original Answer and 10 Affirmative Defenses 23 24 Letter from Michael Stout to Veronica 11 Naman with Medical Review Form 28 25 Letter 10/14/2014 from Jesse McCracken 12 to Jenny Jenkins 29 26 Email to/from MVM and US Marshals 35 13 27 Email with attached Keneipp Letter 47 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 1 THE VIDEOGRAPHER: And we are on at 10:04. 2 CHRISTOPHER MCHALE, 3 having being first duly sworn, testified as follows: 4 EXAMINATION 5 BY MR. NEUERBURG: 6 Q. Mr. McHale, you have been deposed before in 7 this matter on May 25th in Tulsa; is that correct? 8 A. Correct. 9 Q. Okay. And understand this is a continuation of 10 that deposition? 11 A. Yes. 12 Q. Okay. Have you reviewed your deposition 13 testimony? 14 A. I have. 15 Q. Okay. Is there anything in that testimony that 16 you now believe is false or inaccurate? 17 A. No. 18 Q. Okay. I think I left my first exhibit 19 upstairs. Well, let's move on to another. We'll pick 20 that up once I get that. 21 Let me just confirm that MVM gets to 22 choose the doctors that are used for the CSO 23 fitness-for-duty examinations; is that correct? 24 A. Not necessarily, no. Again, as explained the 25 last time, we pick a doctor, but the doctor has to be Page 5 1 approved by FOH, so if the doctor is not approved, then 2 he's not eligible to do the, the physicals. 3 Q. Thank you for that clarification. 4 I just want to confirm that the CSO can't 5 just go to any doctor they choose. They have to go to a 6 doctor that you have already approved and that then the 7 US Marshals Service also confirms it's okay. 8 A. That's not -- no, that's not. Again, as, as 9 stated the last time, they can go to their own physician. 10 They have the ability to go to their own physician. It's 11 just that their physician has to be approved by FOH. So 12 if the, if the CSO wants to go to his own physician and 13 use his own physician, the physician has to provide his 14 medical degree, et cetera, et cetera, whatever and has to 15 be approved by FOH, and once he's approved, then the CSO 16 can go to his own physician. 17 Q. Thank you for that again. 18 I think we're getting into the same point, 19 which is that at the end of the day when the CSO submits 20 fitness review and medical information from a physician, 21 that physician has been approved by MVM and the marshals 22 service? 23 A. Not approved by MVM. The marshals service, 24 yes. 25 Q. Okay. Does MVM provide -- I thought you said Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 3 of 22 3 (Pages 6 to 9) Page 6 1 -- explain to me then how MVM provides the list of 2 physicians to the marshals service and gives them 3 qualifications, et cetera, for the fitness check? 4 A. Well, again, I guess we're getting stuck on the 5 word "approved." 6 Q. Okay. 7 A. I mean, we have a list of physicians that come 8 to us from a third party, a service provider. We then 9 submit the qualifications on those physicians to US 10 marshals/FOH and then they approve them, so, again, I 11 wouldn't necessarily say MVM approves them. I mean, 12 that's, that's, that's the hang-up is the word 13 "approved." 14 Q. Okay. 15 A. Do we select the doctor, would I agree with 16 that, yes? Do we submit them for approval, I would agree 17 with them, yes. We don't approve them. 18 Q. Okay. At the end of the day -- well, let me 19 just ask you this: Is there any contention that on MVM's 20 part that the physicians that Mr. Keneipp saw were not 21 qualified? 22 A. No. 23 Q. Okay. And any contention on MVM's part that 24 somehow they gave opinions outside of their 25 qualifications? Page 7 1 A. No. 2 Q. Okay. Any disagreement with the opinions they 3 gave? 4 A. No. 5 Q. Okay. What is the average age of the 6 individuals that MVM hires as CSOs? 7 A. Off the top of my head, I, I don't know. I 8 mean, they, they vary in range. I mean, there's no 9 specific age requirement. 10 Q. Thank you for that. 11 MR. NEUERBURG: And let me object to the 12 nonresponsive portion. 13 Q. (BY MR. NEUERBURG) Can you give me an 14 estimate? Are these older gentlemen, younger gentlemen? 15 MR. RECTOR: Object to the form of the 16 question. 17 A. Older -- again, I hate to nitpick. It depends 18 on the definition of older. Are they, are they in their 19 50's, yes. 20 Q. (BY MR. NEUERBURG) Okay. Thank you, thank 21 you. That's fine. Being 50, I take offense, but that's 22 okay. 23 No, I'm, I'm just trying to confirm that 24 frequently the folks that are hired as CSOs are people 25 who have already had a previous career in law Page 8 1 enforcement? 2 A. Correct. 3 Q. And they've served 20 years in a police 4 department or some other law enforcement career? 5 A. Again, there's no requirement that says 6 20 years. The answer is have they been in law 7 enforcement, yes? Have they had a career in law 8 enforcement, yes. The requirement, I believe, if I 9 remember correctly, is they had to have law enforcement, 10 five -- at least five years of law enforcement in the 11 last seven years. So I would say, again, they had at 12 least five years of law enforcement. 13 Q. Okay. Thank you for that. 14 Well, let me ask you this: What suitable 15 positions were available to Mr. Keneipp after he was 16 hired that MVM believes he should have applied for? 17 A. Can you repeat -- I don't understand the 18 question. 19 Q. Certainly. What suitable positions were 20 available to Mr. Keneipp after he was hired that MVM 21 believes he should have applied for? 22 MR. RECTOR: Object to the form of the 23 question. 24 A. I mean, the reason he was terminated was 25 because there were no suitable positions, so I don't Page 9 1 think there would be a suitable position for him to apply 2 after we terminated him because there was none before we 3 terminated him. 4 Q. (BY MR. NEUERBURG) Thank you for that, and let 5 me clarify. 6 I'm not just asking about a good MVM. I'm 7 asking about any other employer. 8 A. Well, then if, if assuming, assuming he was 9 physically fit, he could have applied for any other 10 security position that's not marshals related, so, again, 11 at, at wherever there would be a security guard, at the 12 mall, at, you know, at the baseball game, football game. 13 I don't know, wherever there would be a security guard. 14 Q. Are you aware of any specific positions that he 15 should have applied for? 16 A. Me, no. 17 Q. I'm talking about MVM. 18 A. MVM, not that I'm aware of, no. 19 Q. Okay. What employers are you aware of in Tulsa 20 that hire 71-year-old career law enforcement personnel? 21 A. Personally, I don't know of any. 22 Q. Okay. Again, not personally but MVM? 23 A. I can only give my personal knowledge. I don't 24 know if, I don't know if there's anybody else at MVM 25 that's aware. I assume there would be people that work Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 4 of 22 4 (Pages 10 to 13) Page 10 1 for MVM in Tulsa I would assume would be aware of other 2 companies in Tulsa that might hire somebody, might not. 3 I don't know. I can only tell you what I know. 4 Q. Thank you. 5 MR. NEUERBURG: And let me object to the 6 nonresponsive portion. 7 Q. (BY MR. NEUERBURG) You understand that as of 8 the previous deposition. You're not just here in your 9 personal capacity, but you're here to give testimony on 10 behalf of the corporation, MVM; is that correct? 11 A. That is correct. 12 Q. Okay. And you received Exhibit 1, which is a 13 list of deposition topics? 14 A. Correct. 15 Q. And do you see Deposition Topic 30 there, which 16 is -- you understand that we're here to talk about MVM's 17 position that Mr. Keneipp failed to mitigate his damages? 18 A. Correct. 19 Q. Okay. Do you have any evidence -- does MVM 20 have any evidence of any specific position that was 21 available to Mr. Keneipp that he should have applied for? 22 MR. RECTOR: Object to the form of the 23 question. 24 A. Not that I am aware of. 25 Q. (BY MR. NEUERBURG) Okay. Thank you. Page 11 1 And is MVM aware of any other employee -- 2 employers in Tulsa that hire 71-year-old career law 3 enforcement personnel like Mr. Keneipp? 4 MR. RECTOR: Object to the form of the 5 question. 6 A. Not that I am aware of. 7 Q. (BY MR. NEUERBURG) Okay. Do you have any 8 complaints about Mr. Keneipp being honest in his 9 applications to look for other jobs and stating that he 10 had been terminated for medical reasons? 11 MR. RECTOR: Object to the form of the 12 question. 13 A. He wasn't terminated for medical reasons, so my 14 answer would be, yes, I have questions about it. 15 Q. (BY MR. NEUERBURG) Well, what was the reason 16 for Mr. Keneipp's termination? 17 A. He was no longer qualified to work on that 18 contract for MVM. 19 Q. And why was he no longer qualified? 20 A. Because the marshals instructed us to remove 21 him from the contract. 22 Q. And why did the marshals instruct you to remove 23 him from the contract? 24 A. For medical reasons. 25 Q. Okay. So given that chain that you have just Page 12 1 told me, why do you object to the description of his 2 termination as being for medical reasons? 3 A. Because he was terminated because he wasn't 4 eligible to work on that contract, and we didn't have 5 another contract to place him on. If we had another 6 contract to place him on, we would have placed him on 7 that contract. He was terminated because he's not 8 eligible to work on that contract. 9 Q. For medical reasons? 10 A. According to the marshals, yes. 11 Q. Okay. You disagree with the marshals? 12 A. I neither agree nor disagree. What I, what I 13 agree with is the fact that they told us to remove him. 14 We removed him. 15 Q. Let me show you Plaintiff's Exhibit 4. 16 A. Uh-huh. 17 MR. RECTOR: Counsel, could I get a copy 18 of that exhibit -- these exhibits that you have used 19 before? 20 MR. NEUERBURG: These are the same 21 exhibits that we've used before, so I did not bring an 22 extra copy for you. 23 MR. RECTOR: That's fine. 24 THE WITNESS: Do you want to look at it 25 first? Page 13 1 MR. RECTOR: No, I've got it. 2 Q. (BY MR. NEUERBURG) And can you just read the 3 first sentence of that letter? 4 A. Sure. "This is to advise you that your 5 employment with MVM, Inc. has been terminated effective 6 October 2nd, 2014, as you did not meet contract 7 requirements for medical exam." 8 Q. And this is a letter to Mr. Keneipp from MVM? 9 A. Correct. 10 Q. Okay. In light of that sentence that you just 11 read to me, please explain to the jury why you think it's 12 inaccurate for Mr. Keneipp to say that he was terminated 13 for medical reasons? 14 MR. RECTOR: Objection, asked and 15 answered. 16 A. Because that's not why, what I said was I -- do 17 I disagree with what he said, yes. Do I think he's 18 lying? If he believes that, then he's not lying. It's 19 just not accurate. If he believes that that's why he was 20 terminated and he's telling someone that that's why he 21 was terminated, in my, in my understanding of the 22 definition of lying, he's not lying. It's just not 23 accurate. 24 Q. Why did you tell Mr. Keneipp that he was being 25 terminated for not passing a medical exam? Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 5 of 22 5 (Pages 14 to 17) Page 14 1 A. I told him that he didn't meet the contract 2 requirements, which is what he was terminated for. He 3 was no longer eligible under the contract. 4 Q. And what contract requirements did you say he 5 did not meet? 6 A. The medical exam. 7 Q. Okay. Have you given me your best answer as to 8 why it was inaccurate for Mr. Keneipp to say that he was 9 terminated for medical reasons? 10 MR. RECTOR: Object -- 11 A. Yes. 12 MR. RECTOR: -- to the form of the 13 question. 14 A. Yes. 15 Q. (BY MR. NEUERBURG) Did you ever send 16 Mr. Keneipp anything, clarifying that even though you had 17 told him he was terminated because he didn't pass the 18 medical exam, this was not actually a medical reason for 19 termination? 20 A. No. 21 Q. Okay. And you don't believe that Mr. Keneipp 22 was intending to be inaccurate in any way when he said he 23 was terminated for medical reasons? 24 A. No. 25 Q. So you don't object to him stating that as the Page 15 1 reason for his termination when he applied for other 2 positions? 3 A. Again, it's not an accurate statement. The 4 question you asked me prior to that was: Do I disagree 5 with his belief that that's an accurate statement? 6 Again, if that's what he believes, that's what he 7 believes. I'm not going to call the guy a liar and say 8 that's not what he believes. However, it's not accurate. 9 MR. NEUERBURG: Let he object to the 10 nonresponsive portion. 11 Q. (BY MR. NEUERBURG) What objection does MVM 12 have with Mr. Keneipp saying when asked that he was 13 terminated for medical reasons? 14 A. The objection we have is, the reason he was 15 terminated was because he was no longer eligible to work 16 under the contract due to the marshals. If we had 17 another contract to put him on, we would have considered 18 that contract to put him on and moved him to that 19 contract. The reason he was terminated was because he's 20 not eligible to work on that contract pursuant to the 21 marshals. 22 Q. Why did you tell him in the letter that he was 23 terminated for not meeting medical requirements, if it 24 wasn't for medical reasons? 25 A. That was the instructions that we got -- why Page 16 1 the marshals were removing him from the contract. 2 MR. NEUERBURG: Let me object to the 3 nonresponsive portion. 4 Q. (BY MR. NEUERBURG) My question is why you said 5 that it was for medical reasons, when you don't believe 6 it was for medical reasons? 7 A. And my answer stays the same. It's because 8 that's the reason that the marshals removed him from the 9 contract. It says he does not meet the contract 10 requirements for the medical exam. The marshals told us 11 that that was the reason they were removing him from the 12 contract. 13 Q. And the marshals, they're the people you have 14 designated in that contract to perform the medical 15 fitness for duty exam; is that correct? 16 MR. RECTOR: Object to the form of the 17 question. 18 Q. (BY MR. NEUERBURG) Excuse me. Perform the 19 medical fitness for duty -- make the medical fitness for 20 duty decisions. They're the people designated in the 21 contract to make those decision. 22 MR. RECTOR: Object to the form of the 23 question. 24 A. As stated previously in the prior deposition, 25 we didn't designate them. MVM did not designate the Page 17 1 marshals to do the examination. 2 Q. (BY MR. NEUERBURG) Who did? 3 A. The marshals designated themselves via the 4 contract. 5 Q. Okay. And MVM agreed to that? 6 A. Correct. 7 Q. Okay. What evidence does MVM have that -- 8 well, let me ask this: How many more jobs do you think 9 Mr. Keneipp should have applied for in order to show 10 reasonable care and diligence in trying to find a new 11 job? 12 MR. RECTOR: Object to the form of the 13 question. 14 A. I think he should have continued to try and 15 find a job. 16 Q. (BY MR. NEUERBURG) Okay. 17 A. Based on the last deposition, he said he 18 discontinued looking. 19 MR. NEUERBURG: Let me object to the 20 nonresponsive portion. 21 Q. (BY MR. NEUERBURG) How many more jobs should 22 he have applied to for it to be reasonable care and 23 diligence in MVM's view? 24 A. I couldn't put a number on it. What I can say 25 is he should have kept looking. Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 6 of 22 6 (Pages 18 to 21) Page 18 1 Q. What evidence does MVM have that further 2 applications would have been more successful? 3 MR. RECTOR: Object to the form of the 4 question. 5 A. None. 6 Q. (BY MR. NEUERBURG) Let me ask you about your 7 affirmative defenses in this case. 8 A. Uh-huh. 9 Q. Do you have any evidence -- does MVM have any 10 evidence that Mr. Keneipp failed to exhaust his 11 administrative duties? 12 A. With the exception of him filing the 13 grievances, my under -- he should have gone through the 14 grievance process of the CVA, which he did not do. 15 Q. Okay. Thank you for that. 16 Is that the only administrative process 17 that you contend Mr. Keneipp did not comply with? 18 A. Yes. 19 Q. Okay. Why does MVM believe that that's -- CVA 20 is binding on employees who have been terminated? 21 MR. RECTOR: Object to the form of the 22 question. 23 A. Because he was a unit member on the CVA and 24 therefore, the, the administrative process is available 25 to him and binding upon him. Page 19 1 Q. What is MVM's position? Well, let me ask you 2 this: Is MVM's position that this CVA grievance process 3 needs to be done in parallel with the EEOC complaint 4 process? 5 A. No. 6 Q. MVM agrees that Mr. Keneipp filed an EEOC 7 complaint, is that correct? 8 A. Correct. 9 Q. Okay. Does MVM contend at the time that, that 10 that complaint was insufficient and that he should also 11 be going through the grievance process? 12 A. Not that I recall, no. 13 Q. Why not? 14 MR. RECTOR: Object to the form of the 15 question. 16 A. I don't know. 17 Q. (BY MR. NEUERBURG) Okay. What evidence does 18 MVM have that any limitations, period, bars this suit for 19 Mr. Keneipp's recovery? 20 A. I'm not sure. 21 Q. Okay. Thank you. 22 If you turn to the second page of 23 Exhibit 4, and that is a, that is a letter from 24 Dr. Goldhagen; is that correct? 25 A. Yes. Page 20 1 Q. Okay. Was there any reason for plaintiff's 2 termination, other than that letter from Dr. Goldhagen? 3 MR. RECTOR: Object to the form of the 4 question. 5 A. Again, as I stated before, the reason for him 6 being terminated was because we were instructed to remove 7 him from the contract. We didn't have another contract 8 to put him on. Why, why the marshals decided to remove 9 him, if it's based on this one letter, I don't know. 10 Q. (BY MR. NEUERBURG) Did you ever ask the 11 marshals service if they had any other reason for 12 removing him? 13 A. Nope. 14 Q. Was that letter the reason they gave you for 15 his removal? 16 A. Nope. They said he wasn't medically qualified. 17 Q. How did you get that Dr. Goldhagen letter, if 18 the marshals service didn't give it to you? 19 A. They gave it to us. I never said he didn't 20 give it to us. You asked is that the reason? I don't 21 know what the reason was. 22 Q. How did the marshals service give you that 23 letter from Dr. Goldhagen? 24 A. It was part of the package disqualifying him, 25 letting us know that he was disqualified. Page 21 1 Q. Let me make sure I understand your testimony. 2 Even though that letter was part of the package letting 3 you know that he was disqualified, is MVM's position that 4 it does not understand whether that letter was his reason 5 for being disqualified? 6 MR. RECTOR: Object to the form of the 7 question. 8 A. I don't, I don't know if this is the sole 9 reason. I don't know if this is the exact reason. I 10 don't know because I don't work for the marshals. I 11 don't know why. What I, what I know is they sent us the 12 package that said he was medically disqualified and that 13 we should remove him. 14 Q. (BY MR. NEUERBURG) Other than that letter, did 15 the marshals service ever give you anything else as a 16 reason why he was medically disqualified? 17 A. Not that I'm aware of, no. 18 Q. So to MVM's knowledge, the only reason that 19 Mr. Keneipp was disqualified and then terminated was 20 that letter? 21 A. The answer is no, I don't know what their 22 reason was. I can't say it any differently. 23 MR. NEUERBURG: Let me object to not -- 24 A. Is this part, is this part and parcel of it? I 25 would assume so, yes. Is it the only reason, which you Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 7 of 22 7 (Pages 22 to 25) Page 22 1 keep asking? I don't know the answer to that question. 2 MR. NEUERBURG: Let me object to the 3 nonresponsive portion. 4 Q. (BY MR. NEUERBURG) Mr. McHale, my question is: 5 Are you -- to MVM's knowledge, the only reason for 6 Mr. Keneipp's termination that MVM is aware of is that 7 letter; is that correct? 8 A. That is correct. 9 Q. Okay. And the reason given in that letter by 10 Dr. Goldhagen is that she perceived Mr. Keneipp as having 11 back problems; is that correct? 12 A. Yes. 13 Q. So that perception was what caused 14 Mr. Keneipp's termination? 15 MR. RECTOR: Object to the form of the 16 question. 17 A. We can continue to do the dance. I mean... 18 Q. (BY MR. NEUERBURG) To MVM's knowledge -- let 19 me rephrase the question for you. Thank you. 20 To MVM's knowledge, that perception that 21 he had back problems is the only reason MVM is aware of 22 for Mr. Keneipp's disqualification and termination? 23 MR. RECTOR: Object to the form of the 24 question. 25 A. The answer to that question is that to MVM's Page 23 1 knowledge, this letter was the only reason for his 2 disqualification. It's not the reason for his 3 termination. 4 Q. (BY MR. NEUERBURG) Let me show you -- 5 A. Do you want this one back? 6 Q. We should keep them in order. Thank you. 7 MR. NEUERBURG: I'm marking Exhibit 23. 8 (Exhibit No. 23 marked.) 9 Q. (BY MR. NEUERBURG) And you understand that 10 this is the answer that MVM has filed in this case? 11 A. Correct. 12 Q. If you look at Paragraph 12 on Page 5. 13 A. Yes. 14 Q. What efforts -- or let me just for the record, 15 that paragraph says that "MVM affirmatively pleads that 16 all actions taken with regard to Plaintiff were taken in 17 good faith and were based on legitimate facts and 18 criteria." Did I read that correctly? 19 A. Yes. 20 Q. What did MVM do to make sure that the reasons 21 for Mr. Keneipp's disqualification were legitimate? 22 MR. RECTOR: And if I may object just 23 briefly, Counsel, I'm not sure this is an operative 24 pleading. This is our original answer and affirmative 25 defenses, and we had filed an amended one in response to Page 24 1 your amended complaint. 2 MR. NEUERBURG: Okay. Well -- 3 MR. RECTOR: Substantively, I'm not sure 4 that the affirmative defense has been entered in any way. 5 I just wanted to make that clear for the record. 6 MR. NEUERBURG: Okay. Thank you. Let me 7 object to the side-bar. 8 Q. (BY MR. NEUERBURG) But, certainly, the 9 question on the table is what effort did MVM make to 10 ensure that the facts underlying Mr. Keneipp's 11 disqualification and termination were legitimate? 12 A. What MVM did was looked at the disqualification 13 letter saying he was disqualified. We then looked to see 14 if there were other positions available for him, which 15 there were not. At that point in time, we, we terminated 16 him. 17 Q. Turning to Paragraph 13, what acts or omissions 18 by Plaintiff do you contend caused or contributed to his 19 injury? 20 A. Again, it goes to, to the fact that he -- in 21 our belief that he didn't mitigate his damages. 22 Q. Anything else? 23 A. No. 24 Q. Turning to 15, what new and independent cause 25 does MVM contend intervened between your terminating the Page 25 1 Plaintiff and his injury? 2 A. I don't recall. 3 Q. Is MVM aware of any new and independent cause 4 that intervened between what MVM did and, and 5 Mr. Keneipp's injury and complaint in this lawsuit? 6 A. Not that I can think of, no. 7 Q. Okay. Thank you. 8 Is MVM aware of any extra authoritative 9 evidence that would limit Mr. Keneipp's recovery damages? 10 A. Just the information that was learned during 11 his deposition. 12 Q. Okay. And no other extra required evidence? 13 A. No. 14 Q. Thank you. 15 In your last deposition, you referred to 16 -- let me, let me ask it in this way. You were asked in 17 your last deposition whether MVM had gone to bat for any 18 CSOs who had been disqualified to keep them from being 19 terminated. 20 A. Uh-huh. 21 Q. Do you recall that? 22 A. Yes. 23 Q. Okay. And you referenced one individual where 24 you were unable to recall his name where you believe that 25 MVM had done that? Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 8 of 22 8 (Pages 26 to 29) Page 26 1 A. Correct. 2 Q. Okay. Have you found out the name of that 3 individual since then? 4 A. No. 5 Q. Okay. Have you learned -- excuse me. 6 Have you found out about any other CSO 7 that MVM has gone to bat for? 8 A. No. 9 MR. RECTOR: Objection to the form of the 10 question. 11 Q. (BY MR. NEUERBURG) Who is Jesse McCracken? 12 A. I believe he was a CSO that worked for us on 13 the US marshals contract. 14 Q. Okay. Does he still work for MVM? 15 A. No. 16 Q. Where was he stationed? Where was he located? 17 A. I don't recall. 18 Q. Do you know why he's longer working for MVM? 19 A. I believe he was removed from the contract by 20 US marshals. 21 Q. Do you know why he was removed from the 22 contract? 23 A. I believe it may have been medical. 24 Q. Do you know whether Mr. McCracken was the 25 individual you were referring to on Page 30 -- excuse me, Page 27 1 in your deposition when you talked about an individual 2 MVM had gone to bat for? 3 A. Yes, now that you mention his name. 4 Q. Okay. How did MVM go to bat for Mr. McCracken? 5 MR. RECTOR: Objection to the form of the 6 question. 7 A. I believe we resubmitted or requested to 8 resubmit his medical information. 9 Q. (BY MR. NEUERBURG) Okay. And did you resubmit 10 his medical information? 11 A. I don't believe so. 12 Q. Why not? 13 A. I don't recall. 14 Q. Excuse me. You don't recall why you didn't? 15 A. No, I don't believe we did. 16 Q. Okay. 17 A. You asked the question before I finished giving 18 my answer. 19 Q. I apologize. 20 A. Okay. 21 Q. I'll try not to talk over you. 22 Why did you not resubmit medical 23 information for Mr. McCracken? 24 A. If I remember correctly, he did not resubmit -- 25 we had asked him to go ahead and retest or re-examine, Page 28 1 and I don't believe he did. 2 Q. Is there any documentation to that request to 3 Mr. McCracken that he be reexamined? 4 A. Not that I know of, no. 5 Q. Who made that -- who communicated to 6 Mr. McCracken that request? 7 A. I believe it was Veronica Naman. 8 Q. Okay. And how was that request made? 9 A. I believe it was by phone. 10 Q. Okay. And what was Mr. McCracken's response? 11 A. From my knowledge, he just said, yeah, okay, 12 and that was the end of it. 13 Q. Excuse me, he said what? 14 A. He was instructed to go and re -- take a 15 re-exam, and he said, okay, and just never took the 16 re-exam. 17 Q. Did you ever follow up with him beyond that? 18 A. Not that I'm aware of. 19 Q. Okay. 20 (Exhibit No. 24 marked.) 21 Q. (BY MR. NEUERBURG) Let me show you what's been 22 marked as Exhibit 24. Are these the termination 23 documents that you received regarding Mr. McCracken? 24 MR. RECTOR: Objection to the form of the 25 question. Page 29 1 A. Just give me a second to review, yes. 2 Q. (BY MR. NEUERBURG) Okay. Did you provide that 3 medical review form to Mr. McCracken? 4 A. I believe so, yes. 5 Q. Okay. What did Mr. McCracken do in response? 6 A. To my knowledge, nothing. 7 (Exhibit No. 25 marked.) 8 Q. (BY MR. NEUERBURG) Let me show you what's been 9 marked as Exhibit 25. Have you seen this document 10 before, sir? 11 A. Yes. 12 Q. Okay. What is it? 13 A. It's a letter from Mr. McCracken to Jenny 14 Jenkins, the HR coordinator at MVM. 15 Q. Okay. And do you understand from this letter 16 that Mr. McCracken was contesting the reasons given for 17 his termination? 18 A. Yes. It's my understanding that it was based 19 on this letter that MVM reached out to US Marshals for 20 reconsideration. 21 Q. Okay. 22 A. When you asked me earlier what did 23 Mr. McCracken do in response, I was thinking the call 24 from Veronica Naman to him asking him to re -- 25 re-examine. Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 9 of 22 9 (Pages 30 to 33) Page 30 1 Q. Okay. Thank you for that. 2 Where in this letter does Mr. McCracken 3 asked to be retested? 4 A. To my knowledge, it doesn't ask to be retested 5 at all. Again, I read it quite sometime ago. If you 6 want to give me a second, I'll reread it and give you a 7 yes or no answer. 8 Q. Certainly, please do. 9 A. Nowhere in the letter does he ask to be 10 re-examined. 11 Q. Thank you. 12 Do you know whether what Mr. McCracken 13 says in this letter is accurate? 14 A. To my knowledge, yes. 15 Q. Thank you. 16 And not just to your knowledge but to 17 MVM's knowledge. 18 A. Again, we've got no basis to, to think that 19 it's false. 20 Q. Okay. Did MVM investigate the substance of 21 what Mr. McCracken was saying in the letter? 22 A. No. 23 Q. Why not? 24 A. Again, we don't make a medical review. He's 25 arguing -- his position is that the review is wrong and Page 31 1 inaccurate. MVM does not do the medical review. 2 Q. Do you understand from this letter that 3 Mr. McCracken was saying at least one of the inaccuracies 4 was they, was they just got a number wrong, that his 5 medical review said he got a nine on the test, and then 6 the FOH doctor said he got a six? 7 MR. RECTOR: Object to the form of the 8 question. 9 Q. (BY MR. NEUERBURG) Is that correct? 10 A. That's what it says in the first two points 11 that it makes, yes. 12 Q. And is it MVM's position that it can't review 13 even that sort of discrepancy? 14 A. It's not a matter of we can't review. Our, our 15 review is, is irrelevant. If we review it, we pass it 16 along to FOH. It's still FOH's decision on behalf of the 17 US marshals whether he's qualified or not. If we review 18 it and it shows that it was a nine and not a six, we 19 still can't qualify him. We don't qualify him for the 20 contract. We forward it. We forward the letter to 21 marshals asking for them to reconsider based on the 22 information he has listed. 23 Q. Let me just confirm -- 24 A. Uh-huh. 25 Q. -- that nobody at MVM ever looked at the two Page 32 1 documents and said, yes, it's a six or, yes, it's a nine? 2 A. No. 3 MR. RECTOR: Object to the form of the 4 question. 5 A. That is correct. 6 Q. (BY MR. NEUERBURG) How is MVM going to bat for 7 Mr. McCracken when -- 8 MR. RECTOR: Object to the form of the 9 question. I'm sorry. Please finish. 10 Q. (BY MR. NEUERBURG) How is MVM going to bat for 11 Mr. McCracken, when you don't even check to see whether 12 the number is a six or a nine? 13 MR. RECTOR: Objection to the form of the 14 question. 15 A. What we've done -- well, we go ahead -- we went 16 ahead and asked the marshals to reconsider, FOH to 17 reconsider and look at whether the number is accurate or 18 not. Again, if I look at the number and say, oh, that's 19 a six, I mean, oh, that's a nine instead of a six, my 20 opinion is irrelevant. A, I'm not a medical person, but 21 even that being said, it's a simple typo. It's FOH that 22 will get the same information that he has here, which 23 says that it's a nine, not a six, please reconsider. 24 Q. (BY MR. NEUERBURG) So is it MVM's position 25 that whatever MVM thinks, even if it's as simple as Page 33 1 saying he's right, it's a nine, not a six, you made a 2 mistake that that is totally irrelevant to the process? 3 MR. RECTOR: Object to the form of the 4 question. 5 A. If he's -- if the marshals disqualify and 6 removes him from the contract, MVM's opinion is 7 irrelevant, yes. 8 Q. (BY MR. NEUERBURG) Okay. Even on whether a 9 factual question like whether the number is a six or a 10 nine? 11 A. Correct. If the marshals remove him from the 12 contract, he cannot work on that contract, period, end of 13 story, regardless of the reason, whether it was simple 14 errors as this, whether it was something different. If 15 they remove him, he cannot work on that contract. 16 Q. Okay. Can you turn back to Exhibit 24? 17 A. All right. 18 Q. Do you see the second paragraph on the first 19 page? 20 A. What does it start with? 21 Q. The first page. 22 A. Oh, the first page, okay. 23 Q. Would you read that, please, for the jury. 24 A. "If you have any questions or concerns 25 regarding this decision, please contact acting assistance Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 10 of 22 10 (Pages 34 to 37) Page 34 1 Chief Phillip Cornelious, office of court security, at 2 202-307-9135. 3 Q. Okay. And is that what you did? 4 A. This is McCracken, yes. 5 Q. Okay. Thank you. 6 In this letter from the marshals service, 7 this is to MVM, correct? 8 A. Correct. 9 Q. It's not asking for Mr. McCracken's questions 10 or concerns; it's asking for MVM's questions or concerns, 11 correct? 12 A. Correct. 13 Q. Okay. Why did MVM not check to see whether 14 it's a six or a nine so it could say, we agree with his 15 concern, or we don't agree with his concern? 16 MR. RECTOR: Objection to the form of the 17 question. 18 A. Again, MVM's agreement or disagreement is 19 irrelevant. The issue was put on the table that the 20 belief of Mr. McCracken was that it's a six -- it was 21 marked as a six -- I'm sorry, it was marked as a nine, 22 but they read it as a six. That information was passed 23 on to him. Whether he says it or whether I say it, it 24 doesn't matter. What, what the fact of the matter is, 25 they were informed that that's one of the issues that it Page 35 1 should be a nine, they read it as a six, please 2 reconsider it. 3 Q. (BY MR. NEUERBURG) Have you given me your best 4 answer as to why MVM believes that its input does not 5 matter in this process? 6 MR. RECTOR: Object to the form of the 7 question. 8 A. Yes. 9 Q. (BY MR. NEUERBURG) Okay. 10 (Exhibit No. 26 marked.) 11 Q. (BY MR. NEUERBURG) I show you what's been 12 marked as Exhibit 26. 13 A. Do you want these or hold on to them? 14 Q. Certainly. Thank you. 15 What is Exhibit 26? 16 A. It's a communication between MVM and US 17 Marshals. 18 Q. Okay. What does MVM ask that the marshals 19 service do? 20 A. I'm sorry. Can you repeat the question? 21 Q. Certainly. What does MVM ask that the marshals 22 service do? 23 A. To reconsider the qualifications of 24 Mr. McCracken, based on his, based on his letter that we 25 just discussed. Page 36 1 Q. Okay. Where does MVM ask that? Where does MVM 2 make that request? 3 A. I'm sorry, I don't see it here. 4 Q. Did MVM ever make that request? 5 A. To my knowledge, yes. 6 Q. How was it made? 7 A. I believe it was made by email. 8 Q. But you don't see that in the email string? 9 A. That is correct. 10 Q. Okay. 11 MR. NEUERBURG: I ask that any other 12 emails be produced. 13 Q. (BY MR. NEUERBURG) Do you see any requests in 14 here from MVM that the US Marshals Service do anything 15 for Mr. McCracken? 16 A. Based on the email on October 21st at 4:30 p.m. 17 central, the email from Veronica Naman states to Kent 18 Richie, I forwarded McCracken's letter to US marshals 19 headquarters for clarification. That, to me, indicates 20 that she forwarded to the US Marshals for clarification. 21 Q. Thank you. 22 MR. NEUERBURG: Let me object as 23 nonresponsive. 24 Q. (BY MR. NEUERBURG) My question is about any 25 requests that MVM made. What requests did MVM make? Page 37 1 A. Is there -- I'm sorry. I don't understand your 2 question, then. If my answer was nonresponsive, then I 3 don't understand the question. 4 Q. (BY MR. NEUERBURG) Okay. My question is very 5 simple. You have testified that MVM went to bat for 6 Mr. McCracken? 7 A. Correct. 8 Q. And you have -- we've discussed these emails in 9 which MVM forwards his letter. I'm asking if MVM made 10 any requests on its own or if forwarding the letter was 11 the sum total of its efforts to go to bat for 12 Mr. McCracken? 13 A. Forwarding a letter was the sum total of the 14 efforts -- 15 Q. Okay. 16 A. -- with the request of reconsideration. 17 Q. Why -- if you look on the third page, MVM 18 641 -- 19 A. Uh-huh. 20 Q. -- do you see that Mr. Cornelious from the 21 marshals service is saying that if you think there's some 22 discrepancy or mistake in the test, then submit updated 23 tests; is that -- 24 A. Correct. 25 Q. -- correct? Okay. Thank you. Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 11 of 22 11 (Pages 38 to 41) Page 38 1 When you said that, why didn't you tell 2 them that the issue was not a mistake or discrepancy in 3 the tests; the mistake was in how the FOH doctor read the 4 test -- read, read the results? She read the results 5 wrong. Why didn't you tell him that? 6 MR. RECTOR: Object to the form of the 7 question. 8 A. We followed the US marshals' instructions. 9 MR. NEUERBURG: Let me object as 10 nonresponsive. 11 Q. (BY MR. NEUERBURG) Why didn't you tell him 12 that it was not a situation where the test was wrong, it 13 was where the person who read the test was wrong? 14 MR. RECTOR: Object to the form of the 15 question. 16 A. I don't know that answer. 17 Q. (BY MR. NEUERBURG) But, as we sit here today, 18 this is your best example of how MVM has gone to bat for 19 one of its CSOs who was disqualified; is that correct? 20 A. Correct. 21 Q. Okay. Thank you. 22 Why did you tell Mr. McCracken that he 23 should be retested, when the issue wasn't a problem with 24 the test? 25 A. Because we were instructed by the US marshals Page 39 1 that he should submit an updated test, updated test 2 results. 3 Q. But we agree, do we not, that Mr. McCracken 4 wasn't disputing the results of the test, he was 5 disputing a typo or a mistake in reading those results; 6 is that correct? 7 A. That's correct, yes. 8 Q. Okay. So why did you tell Mr. McCracken to get 9 retested, when that was not the issue? 10 A. The answer is the same because that's what he 11 was -- we were instructed to resubmit an updated test, so 12 we instructed Mr. McCracken to retest so that we would 13 have updated test results. 14 Q. Do you believe that that instruction to 15 Mr. McCracken was responsive to his letter? 16 A. Yes. 17 Q. Why? 18 A. Because if he had updated test results, perhaps 19 the numbers would be clearer. 20 Q. Do you think that the numbers on his original 21 test were somehow unclear? 22 A. If somebody misread them, I would assume that 23 they may have been. I don't know. 24 Q. So MVM's assumption is that the problem lies in 25 Mr. McCracken and his doctors and not in the reviewing Page 40 1 physician? 2 A. No, I didn't say that. 3 Q. Does MVM have any evidence that Mr. McCracken's 4 test results were unclear the first time? 5 A. No, as mentioned, I didn't -- we didn't look at 6 them. 7 Q. Okay. So let me ask it again. Why does MVM 8 think it was responsive to Mr. McCracken's letter to tell 9 him to get retested, when that was not something he had 10 asked for? 11 MR. RECTOR: Objection, asked and 12 answered. 13 A. Because that, if he retested and passed the 14 test, it would have resolved that issue. 15 Q. (BY MR. NEUERBURG) How do you know that the 16 reviewing physician wouldn't have misread them again? 17 A. I don't. 18 Q. It would be inappropriate for a CSO to be fired 19 because the reviewing doctor read a six instead of a nine 20 on the test results, wouldn't it? 21 MR. RECTOR: Object to the form. 22 A. We wouldn't -- again, we wouldn't have fired 23 him because somebody misread something. We terminated 24 him simply because he was removed from the contract. 25 MR. NEUERBURG: Object as nonresponsive. Page 41 1 Q. (BY MR. NEUERBURG) The reason for 2 Mr. McCracken's termination that you were given was that 3 he had not met the color vision results; is that correct? 4 A. I don't know. I -- what I know is I was -- we 5 were told that he was medically disqualified, and he was 6 removed from the contract. 7 Q. And if the reason for that medical 8 disqualification was an error, someone reading a six when 9 the real number was a nine, that would be inappropriate 10 as a reason for someone being disqualified and 11 terminated, correct? 12 MR. RECTOR: Object to the form of the 13 question. 14 A. I don't know. 15 Q. (BY MR. NEUERBURG) Is there a reason you're 16 having a hard time answering that question? 17 MR. RECTOR: Objection to the form of the 18 question. 19 A. Yes. 20 Q. (BY MR. NEUERBURG) And what is that? 21 A. You're asking me if it's inappropriate if the 22 number didn't match, if it was an error and that was 23 inappropriate for terminating. As mentioned several 24 times, that's not the reason he was terminated. He was 25 terminated because he was removed from the contract. Is Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 12 of 22 12 (Pages 42 to 45) Page 42 1 it inappropriate for that to happen, for him to be 2 disqualified by the marshals, don't know. You would have 3 to ask them. 4 MR. NEUERBURG: Object as nonresponsive. 5 Q. (BY MR. NEUERBURG) I'm not just -- 6 A. You asked me to explain. 7 Q. Okay. Thank you. 8 I'm not just asking about his termination. 9 I'm asking about the disqualification and the termination 10 because we agree, do we not, that it's all a part of the 11 chain that results in termination? 12 A. I don't know if we've ever agreed to that. 13 MR. RECTOR: Yeah, exactly. Object to the 14 form. 15 Q. (BY MR. NEUERBURG) Well, let me, let me ask 16 you: Do we agree that the medical disqualification and 17 the termination are part of a chain of events that 18 resulted in the CSO's termination? 19 A. Are they part of a chain, yes. Is it the 20 exclusive reason, no. 21 Q. And is MVM aware of any other reason in 22 Mr. McCracken's termination? 23 A. The same as Mr. Keneipp, we didn't have another 24 position to put him in or another contract to assign him 25 to. Page 43 1 MR. NEUERBURG: Object -- 2 Q. (BY MR. NEUERBURG) Thank you for that. 3 Other than the medical disqualification 4 we've been discussing, is there anything else that MVM is 5 aware of that led to his being removed from the contract 6 and terminated? 7 A. Not that I'm aware of. 8 Q. Okay. Thank you. 9 So when we're talking about this chain of 10 events, disqualification and termination, we agree, do we 11 not, that in Mr. McCracken's case, we're not aware of any 12 other links in that chain? 13 A. Again, the other links in the chain is that we 14 did not have another contract or another position to move 15 him. It's not just a two-chain link. There's other 16 links in the chain. 17 Q. Okay. But finding a new position for him would 18 be after he was removed from the contract, correct? 19 A. Correct. 20 Q. Okay. And between his disqualification and his 21 removal from the contract, we're not aware of any other 22 links in that chain of events? 23 A. Other than what we've discussed, no. 24 Q. Okay. Thank you. 25 MR. RECTOR: Counsel, would this be a good Page 44 1 time for a quick break? 2 MR. NEUERBURG: Let me -- if you don't 3 mind letting me finish a line of questions. I don't 4 think it will take more than five minutes. 5 THE VIDEOGRAPHER: I've got about four 6 minutes left on the tape, so... 7 MR. NEUERBURG: Well, then, we'll, we'll 8 match up with that. 9 Q. (BY MR. NEUERBURG) Going back then, if we're 10 not aware of any other links in the chain of events and 11 at the start of that chain is a doctor misreading a test, 12 seeing the wrong number, if that's the only reason we're 13 aware of that winds up with the termination, that 14 termination is not appropriate, is it? 15 MR. RECTOR: Object to the form of the 16 question. 17 A. In the scenario you just described, I would say 18 it's inappropriate. 19 Q. (BY MR. NEUERBURG) Okay. Other than the fact 20 that MVM was not able to find another position for 21 Mr. McCracken, how does Mr. McCracken's situation differ 22 from what I just described? 23 A. That's it. We didn't have another position for 24 him. 25 Q. Why has MVM never tried to stop that sort of Page 45 1 thing from happening? 2 MR. RECTOR: Object to the form of the 3 question. 4 A. I don't have an answer for that. 5 Q. (BY MR. NEUERBURG) Okay. Thank you. 6 MR. NEUERBURG: We can go off now. 7 THE VIDEOGRAPHER: We're off at 11:01 a.m. 8 at the end of Tape 1. 9 (A recess was taken.) 10 THE VIDEOGRAPHER: We are back on at 11 11:10 a.m. at the beginning of Tape 2. 12 MR. NEUERBURG: And just a housekeeping 13 matter before we continue which is that we have served, 14 you, Mr. McHale, with a trial subpoena, and I just wanted 15 -- I believe we have an agreement to put on the record 16 that that subpoena has been received. He's going to 17 appear at trial, and we've tendered $40 for the one-day 18 appearance fee, but if because of traveling you have to 19 appear for more days and reasonable travel expenses, we 20 agree to attend to those expenses. 21 MR. RECTOR: That's correct, we accept 22 service. 23 MR. NEUERBURG: Okay. Thank you. 24 Q. (BY MR. NEUERBURG) One final matter with 25 Mr. McCracken, and that is that when MVM did follow up Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 13 of 22 13 (Pages 46 to 49) Page 46 1 with the marshals service, Mr. McCracken got something 2 that other terminated CSOs don't get, which is that he 3 got an opportunity to submit new test results and had 4 them considered; is that correct? 5 A. Correct. 6 Q. Okay. Why was that opportunity for submission 7 of more test results, why was that not given to 8 Mr. Keneipp? 9 A. I don't know. You'd have to ask the marshals. 10 Q. Did you communicate with the marshals after he 11 was terminated -- after they sent the disqualification 12 letter, communicate regarding Mr. Keneipp's 13 disqualification? 14 A. Not that I recall, no. 15 Q. Why not? 16 A. I don't know. 17 Q. Okay. 18 A. I believe it had to do with the fact that -- if 19 I remember correctly from the letter, that's one of the 20 exhibits that he copied basically the marshals, the 21 individuals at the marshals. If you have a copy of the 22 letter, I can look at it, but that's -- that would be my 23 recollection. 24 Q. Do you know if that letter was sent before or 25 after he was terminated? Page 47 1 A. That, I don't recall. I'd have to look at the 2 date on the letter. 3 Q. So, as we sit here, you don't know whether 4 there was any sort of communication with the marshals 5 service following his disqualification; is that correct? 6 A. As we sit here right now, without looking at 7 that letter, I don't know. 8 (Exhibit No. 27 marked.) 9 Q. (BY MR. NEUERBURG) Let me show you Exhibit 27. 10 If you'll turn to the second page. 11 A. The second page? 12 Q. Yes. Is that the letter from Mr. Keneipp that 13 you were just, just discussing? 14 A. Yes. 15 Q. Okay. And does this refresh your recollection 16 as to whether this letter was before or after his 17 disqualification? 18 A. No, it doesn't. Again, I'm looking at the 19 letter, if I can explain, I'm looking at the letter. It 20 says August 23rd. If I recall, his termination was 21 August 24th. I'm not -- I don't recall what his exact 22 termination date was. 23 Q. If you'd like to look at Exhibit 3. 24 A. Yes. Yeah, it was based on, based on both 27 25 and 3. It was prior to his removal from the contract. Page 48 1 Q. So Mr. Keneipp sent that letter about five 2 weeks before he was disqualified and termination; is that 3 correct? 4 A. That would be accurate, fairly accurate, yes. 5 Q. Are you aware of any communication with the 6 marshals service regarding Mr. Keneipp's 7 disqualification, following the disqualification? 8 A. No. 9 Do you want this one back as well? 10 Q. Not yet. 11 A. Okay. 12 Q. Are you aware of any communication regarding 13 Mr. Keneipp's letter, other than what is on the first 14 page of that exhibit? 15 A. No. 16 Q. Who is John Pearson? 17 A. John Pearson is the contract manager for MVM. 18 Q. And where does he work out of? 19 A. New Mexico. 20 Q. And who is Gregory Wholean? 21 A. Greg Wholean was the operations director at 22 MVM. 23 Q. Mr. Pearson is still employed with MVM? 24 A. Mr. Pearson is, yes. 25 Q. Is he still in the same position? Page 49 1 A. Yes. 2 Q. Okay. And Mr. Wholean is no longer employed 3 with MVM? 4 A. Correct. 5 Q. When did he leave? 6 A. I believe it was around the time of 7 October 2014. I don't know if it was before or after 8 Mr. Keneipp, but it was in that ballpark. 9 Q. Okay. Why did he leave MVM? 10 A. He was released. 11 Q. It was MVM's decision? 12 A. Yes. 13 Q. Okay. Why was he terminated? 14 A. We had a problem with one of our contracts that 15 was not performing well, not the US Marshals. 16 Q. Okay. Which contract was that? 17 A. Social Security Administration. 18 Q. And he was responsible for that contract? 19 A. Correct. 20 Q. Well, what, what specifically -- what was the 21 problem that led to his termination? 22 MR. RECTOR: Objection, it's outside the 23 scope of the deposition topics you provided to us. 24 MR. NEUERBURG: Okay. 25 Q. (BY MR. NEUERBURG) You can answer. Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 14 of 22 14 (Pages 50 to 53) Page 50 1 A. We were awarded a contract by the Social 2 Security Administration in early 2014, February. 3 Mr. Wholean was responsible for the implementation of 4 that contract, getting it off the ground and getting it 5 running. The performance -- the work performance started 6 on August 24th of 2014. The implementation was, in MVM's 7 opinion, not done properly. It was poorly implemented 8 resulting in financial loss. 9 Q. Okay. And how was it poorly implemented? 10 A. We had not enough trained officers. The 11 training wasn't scheduled properly, resulting in a 12 significant amount of overtime, thus, loss of revenue. 13 We had supervisors that were doing scheduling of hours 14 that were not focusing on standards, regular, you know, 15 standards of FLSA, so he was responsible for all of that. 16 So it funneled up like the manager on the baseball team. 17 Q. Thank you for that. 18 Were there any other reasons for his 19 termination? 20 A. Basically, to my knowledge, that was it. 21 Q. Thank you for that. 22 So what are Mr. Pearson's responsibilities 23 as contract manager at the 10th Circuit? 24 A. He, he supervises the district supervisors. 25 The district supervisors are at the individual locations. Page 51 1 John's responsibility is to make sure that the 2 performance of the contract is, is being done properly, 3 hours are being done properly, and basically supervising 4 the district supervisors. 5 Q. Okay. How long has Mr. Pearson been with MVM? 6 A. Since sometime prior to October of 2013. We 7 took over the contract. We started performance on the 8 contract on November 1st, 2000 -- I'm sorry. We took 9 over the contract and performance November 1st, 2013. I 10 would say sometime just prior to that he was hired by 11 MVM. 12 Q. Okay. Had Mr. Pearson done any AKAL on 13 employees? 14 A. Yes. 15 Q. Okay. So he was already performing that job 16 for AKAL? 17 A. To my knowledge, yes, it -- it's the same. 18 Again, I don't know the specifics of what he was doing 19 for AKAL, but I can make the assumption it was the same. 20 Q. Okay. Thank you for that. 21 And how long was Mr. Wholean with MVM 22 before he was terminated? 23 A. He had -- he was with MVM, I believe it was, 24 nine years in total. He had a break in service. 25 Q. And how long was that break? Page 52 1 A. I want to say just under a year, possibly a 2 year. 3 Q. Okay. Why was it more important to Mr. Pearson 4 that who, who was copied on Mr. Keneipp's letter, than 5 the substance of what Mr. Keneipp was complaining about? 6 MR. RECTOR: Object to the form of the 7 question. 8 A. I don't know. 9 Q. (BY MR. NEUERBURG) What is -- what are the FHO 10 requirements that Mr. Wholean is referring to? 11 A. I would assume it would be the, the medical 12 status. 13 Q. You think he meant FOH, rather than FHO? 14 A. Correct. 15 Q. What did Mr. Wholean do to look into 16 Mr. Keneipp's letter? 17 A. That, I don't know. 18 Q. Have you talked with Mr. Wholean? 19 A. About this topic, no. 20 Q. Yes, sir. Why not? 21 A. I don't know. It hasn't come up. 22 Q. Have you talked any with anyone else who worked 23 with Mr. Wholean or who he might have delegated this 24 process to? 25 A. No. Page 53 1 Q. Why not? 2 A. I don't know who he -- who I would have talked 3 to that he would have delegated it to. The only one, the 4 only one I can think of is Veronica Naman, and I spoke to 5 her. 6 Q. Okay. And she wasn't aware of Mr. Wholean or 7 anyone else looking into Mr. Keneipp's letter? 8 A. Correct. 9 Q. Okay. So, as we sit here today, you don't know 10 if anyone at MVM looked into Mr. Keneipp's letter? 11 A. Correct. 12 Q. What was MVM's understanding of what 13 Mr. Keneipp was asking for in his letter? 14 A. As I read the letter, when I received it, my 15 understanding of it was that he was raising concerns or 16 complaints about the process of the medical follow-ups, 17 the requirements and the burdens of the follow-ups. 18 Q. So MVM understood that Mr. Keneipp considered 19 these medical follow-ups' requirements to be 20 unreasonable? 21 A. Correct. 22 Q. Did you understands from his letter that his 23 doctors also considered the medical follow-ups to be 24 unreasonable? 25 A. Not specifically, no. Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 15 of 22 15 (Pages 54 to 57) Page 54 1 Q. I direct you to the third sentence of the first 2 paragraph on 662: "He also stated"? 3 A. Okay. 4 Q. Or just reading that paragraph, you understand 5 that his -- from that paragraph that Mr. Keneipp's 6 cardiologist did not think this information was 7 appropriate for a cardiological follow-up? 8 A. Let me, let me finish reading it, please. 9 Q. Certainly. 10 THE WITNESS: Bless you. 11 MR. RECTOR: Thank you. 12 A. Okay. I'm sorry, what was the question? 13 Q. (BY MR. NEUERBURG) Certainly. Do you 14 understand from that Mr. Keneipp is informing you that 15 when he brought this to his cardiologist, his 16 cardiologist thought that the information requested was 17 not appropriate for a cardiological follow-up? 18 MR. RECTOR: Object to the form of the 19 question. 20 A. Correct, my understanding of reading this is 21 that that's what Mr. Keneipp was telling us. 22 Q. (BY MR. NEUERBURG) Okay. Thank you. 23 And in the third paragraph from the 24 bottom, begins: "This time they want Dr. Good." 25 A. Okay. Page 55 1 Q. And do you see that in that paragraph that 2 Mr. Keneipp is telling you that Dr. Good told him that 3 the information requested was not necessary? 4 MR. RECTOR: Object to the form of the 5 question. 6 A. Let me just read it. 7 I'm sorry. What was the question? 8 Q. (BY MR. NEUERBURG) Certainly. Do you 9 understand from that paragraph that Mr. Keneipp is 10 telling you that from his conversation with Dr. Good, 11 Dr. Good considered the medical follow-up request to be 12 unnecessary? 13 MR. RECTOR: Same objection. 14 A. That's -- again, that's not the way I read it. 15 I, I read it as his doctor was going to do whatever a 16 pharmacologic, pharmacologic test is. Again, I don't 17 know what that is. I'm not a doctor. 18 Q. (BY MR. NEUERBURG) Let me read, and you tell 19 me if I'm reading it correctly, please. 20 A. Uh-huh. 21 MR. RECTOR: Objection, the document 22 speaks for itself. 23 A. Okay. 24 Q. (BY MR. NEUERBURG) "I saw Dr. Good at his 25 office and showed him what was requested. He said it was Page 56 1 not necessary." Did I read that correctly? 2 A. You read that correctly, yes. 3 Q. Okay. So do you understand from that that 4 Dr. Good was saying that the information requested was 5 not necessary? 6 A. Yes. 7 Q. Okay. Thank you. 8 So do you now understand from reviewing 9 these paragraphs with me that Mr. Keneipp was telling you 10 that it wasn't just him, his doctors also thought these 11 medical requirements were unreasonable? 12 A. No. Again, I'm going to focus on the word 13 "unreasonable." I don't know if it's unreasonable or 14 not. I don't know if his doctor said it was 15 unreasonable. They didn't agree with it. I don't know 16 why they didn't agree with it. It just says that it -- 17 this one says it's not necessary. I don't know if I 18 consider that unreasonable. I don't know. 19 Q. Do you think it's reasonable to ask for 20 unnecessary information? 21 A. In the medical field, it might be. I don't 22 know. 23 Q. Do you know what's involved in the stress test 24 that was requested? 25 A. Nope. Page 57 1 Q. Do you know whether that is a difficult test to 2 perform? 3 A. Nope. 4 Q. Do you know whether that's an unpleasant test 5 to undergo? 6 A. Nope. 7 Q. Is it reasonable to ask someone to go through 8 an unnecessary test, if that test is unpleasant to go 9 through? 10 MR. RECTOR: Object to the form of the 11 question. 12 A. Again, I don't know if it's, it's unreasonable 13 or not. 14 Q. (BY MR. NEUERBURG) Do you know whether the 15 test that was requested has potentially harmful side 16 effects? 17 A. No. 18 Q. Do you know whether people who undergo these 19 stress tests, these treadmill stress tests, have an 20 incident of heart attack while they're undergoing the 21 test? 22 A. No, I do not. 23 Q. Okay. Would it be unreasonable to ask for an 24 unnecessary test that would pose health risks? 25 A. That, I would say, yes, it's unreasonable. Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 16 of 22 16 (Pages 58 to 61) Page 58 1 Q. Okay. But sitting here today, you don't know 2 whether there are any health risks associated with the 3 test you demanded of Mr. Keneipp? 4 A. Correct. And just to clarify, we didn't demand 5 them. We didn't require them. It wasn't our demand or 6 our requirement. 7 Q. Did you give those requests for medical 8 information to Mr. Keneipp? 9 A. Yes. 10 Q. They came through MVM? 11 A. Correct. 12 Q. And they originated from MVM's designee, the 13 marshals service, FOH, and the doctors performing the 14 medical review? 15 MR. RECTOR: Object to the form of the 16 question. 17 A. And the answer is, no. Again, the marshals, 18 FOH, and anybody else is not our designee. You can say 19 it 1,000 times, and I'm not going to agree with you. 20 Q. (BY MR. NEUERBURG) What would you call them? 21 A. What would I call them? I would call them our 22 customer. 23 Q. And they're the people designated under your 24 contract, correct, to perform those medical follow-ups' 25 reviews? Page 59 1 A. They, they designated themselves. We did not 2 designate them; therefore, they're not our designee. 3 Q. I think we agree on this, but the contract you 4 signed authorized them to make those demands of your CSO 5 employees, correct? 6 A. I don't know if I said that they authorized 7 them or not. What I said is the contract that we signed 8 has in there a clause that says they set the standards. 9 They review the medicals. 10 Q. Thank you for that. 11 I'm asking for a yes or no answer. Does 12 the contract that MVM signed authorize the marshals 13 service, FOH, doctors designated by FOH to make those 14 medical demands, demands for medical information upon 15 MVM's CSO employees? 16 MR. RECTOR: Object to the form of the 17 question. 18 A. My answer would be -- since you want a yes or 19 no answer, my answer would be no. 20 Q. (BY MR. NEUERBURG) Why not? 21 A. They -- again, whether they're authorized or 22 not, in my view, the answer is does the contract 23 authorize them? Now, they, they have the ability to do 24 that. They can ask for it, and they can review it. They 25 also have the ability to determine whether somebody works Page 60 1 in their facility on their contract or not. 2 MR. NEUERBURG: Let me object as 3 nonresponsive. 4 A. You asked me why, and I gave you an 5 explanation. 6 Q. (BY MR. NEUERBURG) Okay. Thank you. I'm not 7 trying to fight with you. 8 I'm asking for your best explanation of 9 why, in what way are they not authorized to demand 10 medical information from your CSO employees? 11 A. Again, my definition of authorize is they have 12 the ability to make the request. That's my best answer. 13 You've asked for my best answer. I've just given it to 14 you. 15 MR. NEUERBURG: Let me object as 16 nonresponsive. 17 Q. (BY MR. NEUERBURG) The question is in what way 18 are they not authorized? What, what is your quibble? 19 What is your objection to the term "authorized" in this 20 context? 21 A. My, my quibble on it is that they can make the 22 request. I, I don't see that as the authority to do so. 23 Q. Who does have the authority then to make those 24 requests, if not the marshals service and FOH? 25 A. I don't have an answer for that. Page 61 1 Q. Did MVM understand from Mr. Keneipp's letter 2 that he was concerned about being fired? 3 A. I would -- yes. 4 Q. Okay. Did MVM understand that he did not want 5 to be fired? 6 A. Yes. 7 Q. Okay. And MVM got this letter less than two 8 months before he actually was fired; is that correct? 9 A. Correct. 10 Q. Okay. Did anyone at MVM ever refer back to 11 this letter before firing him? 12 A. Not that I'm aware of, no. 13 Q. Why not? 14 A. Because, again, he was removed from the 15 contract at the instructions of the US marshals. Whether 16 their, whether their guidelines of follow-ups are 17 unreasonable or not, again, MVM does not control that. 18 MVM cannot dictate that. MVM cannot change that. If, if 19 Mr. Keneipp's disagrees with their, their follow-up 20 requests and the dates and so forth and so on, there's, 21 there's nothing MVM can do about that. He's removed from 22 the contract. He is removed from the contract. 23 Q. Do you understand from this letter that 24 Mr. Keneipp told you that he had no problems with back 25 pain and hadn't had any problems since his surgery in Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 17 of 22 17 (Pages 62 to 65) Page 62 1 2010? 2 MR. RECTOR: Object to the form of the 3 question. 4 A. Yes. 5 Q. (BY MR. NEUERBURG) And you've already 6 testified that the reason given and you're aware of no 7 other reason for the disqualification was that the doctor 8 perceived him as having back problems; is that correct? 9 MR. RECTOR: Object to the form of the 10 question. 11 A. Could you ask that again? 12 Q. (BY MR. NEUERBURG) Certainly. I believe 13 you've already testified that Dr. Goldhagen stated as her 14 reason for medically disqualifying Mr. Keneipp was her 15 perception that he had back problems? 16 A. Yes. 17 Q. And you're aware of no other reason? 18 A. Correct, I'm not aware of any other reason. 19 Q. Thank you. 20 You understand from Mr. Keneipp's letter 21 that he disagreed with that assessment? 22 A. Correct. 23 Q. Okay. Why did you not follow up with the 24 marshals service for Mr. Keneipp the way you did for 25 Mr. McCracken? Page 63 1 A. Oh, the difference between the two of them is 2 the US marshals already had his letter with his comments 3 and his concerns about not having back pain, whereas 4 Mr. McCracken, they didn't. So we forwarded 5 Mr. McCracken's letter on. Now, they had it. Now, they 6 knew what his concerns were. 7 Q. But we agree that Mr. Keneipp was not given the 8 opportunity Mr. McCracken had to undergo further tests to 9 see whether there really was a problem; is that correct? 10 A. That is correct, we agreed to that. 11 Q. Okay. Why didn't MVM ask for that opportunity 12 for Mr. Keneipp? 13 A. Again, when we forwarded on the information of 14 Mr. McCracken, the point was made that he had an 15 objection to the, the determination of the information. 16 They already had Mr. Keneipp's objection. They -- as far 17 as I can tell, and it's an assumption on my side because 18 he's listed numerous marshals, that they were already 19 aware of what his objection was. 20 Q. Did anyone at MVM ever connect these dots for 21 the marshals service and say, Dr. Goldhagen is saying one 22 thing, Mr. Keneipp is saying another thing, let's retest 23 him and find out who's right? 24 A. No. 25 MR. RECTOR: Object to the form of the Page 64 1 question. 2 A. No. 3 Q. (BY MR. NEUERBURG) Should it matter that 4 Mr. Keneipp's letter was sent before he was fired and 5 Mr. McCracken's letter was sent after he was fired? 6 MR. RECTOR: Object to the form of the 7 question. 8 Q. (BY MR. NEUERBURG) Would that matter to the 9 process? 10 A. Not, not that I'm aware of, no. 11 Q. Okay. Do you have any explanation for why 12 Mr. Keneipp did not get that opportunity that 13 Mr. McCracken had? 14 MR. RECTOR: Object, asked and answered. 15 A. No. 16 MR. NEUERBURG: Okay. Let's go off the 17 record. 18 (A lunch recess was taken.) 19 THE VIDEOGRAPHER: We're back on at 20 12:29 p.m. 21 Q. (BY MR. NEUERBURG) Okay. Mr. McHale, does 22 your contract with the US Marshals Service authorize the 23 USMS and FOH to disqualify your CSO employees from 24 performing under that contract? 25 A. Yes. Page 65 1 Q. Okay. Thank you. 2 Since your previous deposition, two 3 contracts have been produced, one with the Social 4 Security Administration and one with the Department of 5 Homeland Security? 6 A. Correct. 7 Q. Are those the only two contracts for security 8 services that MVM held with federal agencies at the time 9 of Mr. Keneipp's termination on October 2nd -- 10 A. No. 11 Q. -- 2014? 12 A. No. 13 MR. RECTOR: And just briefly to 14 interject, I, I discussed this and there was a 15 miscommunication that I had with my client is on my part. 16 He will talk about all of the other contracts that we 17 had. There's maybe three or four other ones that are 18 substantially similar, and we've got no objection to 19 producing those contracts, just like we produced the 20 other contracts, but I think he'll be able to testify as 21 to whether there are any differences in the medical 22 provisions for purposes of the deposition. We have no 23 objection producing those and agree that they would be 24 encompassed within the discovery request that you've 25 already sent. Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 18 of 22 18 (Pages 66 to 69) Page 66 1 MR. NEUERBURG: Okay. Thank you. 2 Obviously, without having seen them, I 3 can't promise that I won't have questions specific to 4 those. 5 MR. RECTOR: Right. 6 MR. NEUERBURG: But, but I thank you for 7 that. 8 MR. RECTOR: Sure. 9 Q. (BY MR. NEUERBURG) Under the Social Security 10 Administration contract, who performs medical fitness for 11 duty exams? 12 A. A doctor performs them, the physical. 13 Q. Okay. Who selects those doctors? 14 A. MVM. 15 Q. Okay. And who reviews the doctors' reports? 16 A. MVM. 17 Q. Okay. Does -- do those reports ever go to SSA 18 or FOH or any other federal agency? 19 A. Only if they request them. 20 Q. Have they ever requested them? 21 A. In some cases, yes. 22 Q. Okay. And what happened in those cases? 23 A. They would either come back and disqualify 24 somebody, or they would not. I mean, very rarely have we 25 had anybody disqualified after the fact. Page 67 1 Q. Okay. How many times in the last five years? 2 A. I've been with the company three years, and in 3 the three years I've been there, I'm not aware of them 4 disqualifying anyone after the fact. 5 Q. Okay. And how many times have they asked to 6 review the medical findings of the examining physician? 7 A. Only twice. 8 Q. Okay. And how many security personnel are we 9 talking about under this SSA contract? 10 A. Oh, there's approximately 400 armed guards. 11 Q. Okay. Any unarmed personnel, anyone else 12 providing security services? 13 A. Yes, there is 37 unarmed personnel. 14 Q. Okay. And so those approximately 400 armed 15 guards and 37 other personnel, are those all of the 16 people encompassed under this contract with the SSA? 17 A. The answer is no to that because there's other 18 administrative people at the site. There's a site 19 manager. There's a project manager, an assistant project 20 manager, and two administrative staff. 21 Q. Okay. But those individuals that you just 22 listed for me are not providing security services? 23 A. Correct. 24 Q. Okay. Thank you. 25 And how many of those -- well, let me ask Page 68 1 you this: How often under the contract do those security 2 personnel have to undergo a fitness-for-duty examination? 3 A. Once. 4 Q. Are there any recurring fitness-for-duty 5 examinations? 6 A. No. 7 Q. And is that one fitness-for-duty examination 8 happen at the time of hire? 9 A. Correct. 10 Q. Just so I understand, there are no every year, 11 every three-year, what have you, requirements that these 12 folks get a physical and provide the results to you or 13 SSA or anyone else? 14 A. Not that I recall, no, just one time upon hire. 15 Q. Okay. And on the DHS contract, does MVM select 16 the physicians who perform the fitness-for-duty 17 examinations for those security folks? 18 A. Yes. 19 Q. Okay. And does MVM review the fitness for duty 20 conclusions of those physicians? 21 A. Yes. 22 Q. Okay. And do those fitness for duty results 23 ever go to DHS or FOH or any other federal agency? 24 A. I'm not aware of any specific times that they 25 have, but if they requested them, we would provide them. Page 69 1 Q. Okay. But in your three years, you're not 2 aware if that ever happened? 3 A. Correct. 4 Q. And how often do these DHS security personnel 5 have to undergo a fitness-for-duty examination? 6 A. Once. 7 Q. Just once at hire? 8 A. Correct. 9 Q. Okay. 10 A. If I can go back, I -- now that I'm thinking 11 about it, I think with SSA, the contract approval for a 12 new hire, the medical would be submitted with the 13 package, as well as credit reference, background, legal, 14 criminal background check. All of that would be 15 submitted into a package and submitted to them. I'm not 16 aware of them ever disqualifying anybody that we have 17 submitted as approved. 18 Q. Thank you for that. 19 So if I understand what you're saying, 20 with SSA, if a person -- if, if the person does their 21 fitness for duty exam, the physicians says there's 22 problems with their fitness, that goes to you first, and 23 you would not even submit that person to SSA? 24 A. Correct. 25 Q. Thank you. Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 19 of 22 19 (Pages 70 to 73) Page 70 1 And what other contracts with federal 2 agencies were affected on October 2nd, 2014? 3 A. When you say, when you say Department of 4 Homeland Security, we've got various contracts with them. 5 The one we were speaking of that you have in your 6 possession is with the Federal Protective Services, FPS. 7 We also have one with ICE, Immigration and Customs 8 Enforcement, also in Puerto Rico, our DHS as well. We 9 have one with NIH, National Institutes of Health. We 10 have one with the US marshals for OFDT. 11 Q. And what is that? 12 A. That's Office of Federal Detention 13 Transportation. 14 Q. And what services do you provide? 15 A. We move individual detainees from federal 16 courthouse to federal courthouse if they've -- let's 17 assume, for example, you've got a detainee in Maine that 18 has to appear in court in Boston. We would pick them up 19 at the detention facility in Maine and move them down to 20 the courthouse and turn them over to US marshals at the 21 courthouse. 22 Q. Are there any other contracts for security 23 services that you had in effect on that date? 24 A. The final contract that we had in effect that 25 day was with, was with, again, ICE, immigration -- I take Page 71 1 that back. I believe it was with CBP, Customs and Border 2 Protection, and that's for drug transport. 3 Q. And when you say "drug transport," what are -- 4 please explain what that is. 5 A. The CBP will confiscate drugs coming across the 6 border. They're placed -- the drugs are placed in a 7 warehouse. Once the case is concluded and the drugs are 8 no longer required for evidence, MVM picks up the drugs 9 and transports it to an incinerator facility, turns the 10 drugs over to the incinerator, and they burn the drugs. 11 Q. Thank you. 12 The -- how many security personnel are 13 involved in the FPS contract, which I believe is -- what 14 we were discussing was the DHS contract -- 15 A. Correct. 16 Q. -- in our possession? 17 A. I believe it's approximately 100 -- I want to 18 say approximately 175. No, I take that back. It was 19 about 225. 20 Q. And how many personnel under the ICE, 21 Immigration and Customs Enforcement contract? 22 A. I believe that's about 80. 23 Q. Okay. And NIH? 24 A. NIH is about 400. 25 Q. Are those armed guards or -- Page 72 1 A. Those are unarmed guards. 2 Q. Okay. And what services do they provide? 3 A. Again, perimeter security. They are -- NIH, 4 their main campus, they have several facilities, but the 5 main campus is a gated campus, so you've got to come 6 through the security gates to get onto the campus. The 7 other facilities are un-gated, but you've got to go 8 through the front door, much like the courthouses that 9 we're talking about here today. 10 Q. Okay. Thank you. 11 How many personnel under OFDT? 12 A. I believe it's six. 13 Q. And CBP? 14 A. CBP would be, I want to say, 12. 15 Q. Under any of those contracts, do those agencies 16 or any other federal agencies review fitness-for-duty 17 examinations? And when I say review, do I understand 18 that you would provide them as requested? Do any of 19 those fitness-for-duty examinations for any personnel 20 under any of those other agency contracts go to those 21 agencies or any other federal agencies for review? 22 MR. RECTOR: Object to the form of the 23 question. 24 Q. (BY MR. NEUERBURG) I, I can probably rephrase 25 that. And thank you for that. Page 73 1 On any of those other contracts, does -- 2 on those other contracts, does MVM perform the review of 3 the fitness-for-duty examinations, or do federal agencies 4 perform those reviews? 5 A. Again, much like the SSA contract, MVM does the 6 initial review. If the person passes the review, the 7 package is submitted in whole with everything else to the 8 agency for approval. 9 Q. Are you aware of any incident in any of those 10 contracts in which MVM has approved a person's -- an 11 employee's fitness for duty and the agency has disagreed? 12 A. No. 13 Q. Why did MVM agree to a different procedure with 14 the US Marshals Service? 15 A. That was the requirement of the contract. It 16 was either agree or not get the contract. 17 Q. And was there any other reason for agreeing to 18 that, other than wanting to get the benefit of, of the 19 contract? 20 A. No. 21 Q. Okay. And just so that we're very clear, in 22 none of the other contracts with federal agencies 23 involving at least 700 other MVM employees, are these 24 employees subjected to repeated yearly or biannual, what 25 have you, examinations by a federal agency? Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 20 of 22 20 (Pages 74 to 77) Page 74 1 A. Correct. 2 Q. Okay. If I've asked you this before, I 3 apologize, but did anyone at MVM ever compare the 4 disqualification decision for Mr. Keneipp with the letter 5 Mr. Keneipp had sent about five weeks before? 6 A. No. 7 Q. We agreed, did we not, that it's wrong for an 8 employee to be medically disqualified to lose their job 9 because of a mistake? 10 A. Theoretically, yes. 11 Q. Can you think of anything that MVM should have 12 done differently to help Mr. Keneipp keep his job as a 13 CSO? 14 A. No. 15 Q. And just so we're clear, if the reviewing 16 physician says the test result was a six when it was 17 actually a nine, you're -- that would be a mistake, 18 wouldn't it? 19 MR. RECTOR: Object to the form of the 20 question. 21 A. I guess, yeah. 22 Q. (BY MR. NEUERBURG) And if the reviewing 23 physician said that this CSO can't run when the examining 24 physician said he can run up and down stairs if he wants 25 to, that would be a mistake? Page 75 1 A. I guess, yeah. 2 Q. Thank you. 3 MR. NEUERBURG: No further questions. 4 EXAMINATION 5 BY MR. RECTOR: 6 Q. Mr. McHale, a couple of brief questions on 7 cross. At the time of Mr. Keneipp's termination on 8 October 2nd, 2014, was MVM servicing any other contracts 9 out of the Northern District of Oklahoma? 10 A. No. 11 Q. With respect to the entity responsible for 12 conducting medical examinations, did MVM engage the 13 marshals service for the sole purpose of conducting 14 medical examinations for the CSOs? 15 A. No. 16 Q. And did it hire or otherwise remit payment to 17 the marshals service for that purpose? 18 A. No. 19 Q. Is being medically certified by the marshals 20 service a requirement in order to be employed or -- I'm 21 sorry. Let me just scratch that question. 22 Is, is being medically qualified by the 23 marshals service and the FOH a requirement to perform 24 under the contract with the marshals service -- 25 A. Yes. Page 76 1 Q. -- as a CSO? 2 A. Yes. 3 MR. RECTOR: I have no further questions. 4 THE VIDEOGRAPHER: We're off at 5 12:47 p.m. 6 (The deposition concluded at 12:47 p.m.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 77 1 WITNESS CORRECTIONS AND SIGNATURE 2 Please indicate changes on this sheet of paper, giving the change, page number, line number and reason 3 for the change. Please sign each page of changes. 4 PAGE/LINE CORRECTION REASON FOR CHANGE 5 ____________________________________________________ 6 ____________________________________________________ 7 ____________________________________________________ 8 ____________________________________________________ 9 ____________________________________________________ 10 ____________________________________________________ 11 ____________________________________________________ 12 ____________________________________________________ 13 ____________________________________________________ 14 ____________________________________________________ 15 ____________________________________________________ 16 ____________________________________________________ 17 ____________________________________________________ 18 ____________________________________________________ 19 ____________________________________________________ 20 ____________________________________________________ 21 ____________________________________________________ 22 ____________________________________________________ 23 ____________________________________________________ 24 ________________________ 25 CHRISTOPHER McHALE Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 21 of 22 21 (Pages 78 to 80) Page 78 1 S I G N A T U R E O F W I T N E S S 2 3 I, CHRISTOPHER McHALE, solemnly swear or affirm 4 under the pains and penalties of perjury that the 5 foregoing pages contain a true and correct transcript of 6 the testimony give by me at the time and place stated, 7 with the corrections, if any, and the reasons therefor 8 noted on the foregoing correction pages(s). 9 10 11 12 __________________________ 13 CHRISTOPHER McHALE 14 15 16 17 18 19 20 21 22 23 24 25 Page 79 1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA 2 3 DAVID L. KENEIPP * * 4 VS. * C. A. NO. 4:15-CV-0056 * 5 MVM, INC. * 6 7 REPORTER'S CERTIFICATION OF THE ORAL DEPOSITION OF CHRISTOPHER McHALE 8 TAKEN JULY 8, 2016 9 THE STATE OF TEXAS: COUNTY OF VICTORIA: 10 11 I, JENNIFER L. KARL, a Certified Shorthand Reporter 12 in and for the State of Texas, hereby certify to the 13 following: 14 That the witness, CHRISTOPHER McHALE, was duly sworn 15 by the officer and that the transcript of the oral 16 deposition is a true record of the testimony given by 17 the witness; 18 That the deposition transcript was submitted on July 19 25, 2016, 2014, to the witness, or to the attorney for 20 the witness, for examination, signature and return to 21 JENNIFER L. KARL, CSR by August 26, 2016; 22 That the amount of time used by each party at the 23 deposition is as follows: 24 MICHAEL NEUERBURG - (01:46) 25 JONATHAN G. RECTOR - (00:02) Page 80 1 I further certify that pursuant to FRCP Rule 30 2 (f)(1) that the signature of the deponent: 3 _____ was requested by the deponent or a party 4 before the completion of the deposition and that the 5 signature is to be before any notary public and returned 6 within 30 days from date of receipt of the transcript. 7 If returned, the attached Changes and Signature Page 8 contains any changes and the reasons therefor; 9 _____ was not requested by the deponent or a party 10 before the completion of the deposition. 11 I further certify that I am neither counsel for, 12 related to, nor employed by any of the parties or 13 attorneys in the action in which this proceeding was 14 taken, and further that I am not financially or 15 otherwise interested in the outcome of the action. 16 GIVEN UNDER MY HAND AND SEAL OF OFFICE, on this the 17 _______ day of July, 2016. 18 19 20 21 _______________________________ JENNIFER L. KARL, Texas CSR 5063 22 Date of Expiration: 12/31/16 P.O. Box 4785 23 Victoria, Texas 77903 (361) 582-4527 24 (361) 582-4552 (Fax) jkarlcsr@aol.com 25 Case 4:15-cv-00565-JED-TLW Document 36-2 Filed in USDC ND/OK on 10/18/16 Page 22 of 22 Exhibit 3 Case 4:15-cv-00565-JED-TLW Document 36-3 Filed in USDC ND/OK on 10/18/16 Page 1 of 4 Case 4:15-cv-00565-JED-TLW Document 36-3 Filed in USDC ND/OK on 10/18/16 Page 2 of 4 Case 4:15-cv-00565-JED-TLW Document 36-3 Filed in USDC ND/OK on 10/18/16 Page 3 of 4 Case 4:15-cv-00565-JED-TLW Document 36-3 Filed in USDC ND/OK on 10/18/16 Page 4 of 4 Exhibit 5 Case 4:15-cv-00565-JED-TLW Document 36-5 Filed in USDC ND/OK on 10/18/16 Page 1 of 3 Case 4:15-cv-00565-JED-TLW Document 36-5 Filed in USDC ND/OK on 10/18/16 Page 2 of 3 Case 4:15-cv-00565-JED-TLW Document 36-5 Filed in USDC ND/OK on 10/18/16 Page 3 of 3 Exhibit 6 Case 4:15-cv-00565-JED-TLW Document 36-6 Filed in USDC ND/OK on 10/18/16 Page 1 of 4 Case 4:15-cv-00565-JED-TLW Document 36-6 Filed in USDC ND/OK on 10/18/16 Page 2 of 4 Case 4:15-cv-00565-JED-TLW Document 36-6 Filed in USDC ND/OK on 10/18/16 Page 3 of 4 Case 4:15-cv-00565-JED-TLW Document 36-6 Filed in USDC ND/OK on 10/18/16 Page 4 of 4 Exhibit 7 Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 1 of 23 Transcript of Veronica Lynn Naman Date: August 24, 2016 Case: Keneipp -v- MVM, Inc. Planet Depos, LLC Phone: 888-433-3767 Fax: 888-503-3767 Email: transcripts@planetdepos.com Internet: www.planetdepos.com Worldwide Court Reporting | Interpretation | Trial Services Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 2 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 1 (Pages 1 to 4) 1 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF OKLAHOMA 3 ------------------------------X 4 DAVID L. KENEIPP, : 5 Plaintiff, : 6 v. : Civil Action No. 7 MVM, INC., : 4:15-cv-00565 8 Defendant. : 9 ------------------------------X 10 11 Videotaped Deposition of 12 VERONICA LYNN NAMAN 13 Alexandria, Virginia 14 Wednesday, August 24, 2016 15 10:06 a.m. 16 17 18 19 20 21 22 23 Job No.: 119165 24 Pages: 1 - 81 25 Reported by: Marney Alena Mederos, RPR, CRR 2 1 Videotaped Deposition of VERONICA LYNN 2 NAMAN, held at the offices of: 3 4 CARR WORKPLACES 5 1765 Duke Street 6 Alexandria, Virginia 7 (571) 447-4300 8 9 10 11 Pursuant to Notice, before Marney Alena 12 Mederos, Registered Professional Reporter, 13 Certified Realtime Reporter, and Notary Public in 14 and for the Commonwealth of Virginia. 15 16 17 18 19 20 21 22 23 24 25 3 1 A P P E A R A N C E S 2 ON BEHALF OF THE PLAINTIFF: 3 JOHN W. GRIFFIN, JR., ESQUIRE 4 MAREK, GRIFFIN & KNAUPP 5 203 North Liberty Street 6 Victoria, Texas 77901 7 (361) 573-5500 8 9 ON BEHALF OF THE DEFENDANT: 10 JONATHAN G. RECTOR, ESQUIRE 11 LITTLER MENDELSON, P.C. 12 2001 Ross Avenue 13 Suite 1500 14 Dallas, Texas 75201 15 (214) 880-8182 16 17 ALSO PRESENT: 18 CHRISTOPHER McHALE, MVM, INC. 19 RANDALL SHORT, VIDEOGRAPHER 20 21 22 23 24 25 4 1 C O N T E N T S 2 EXAMINATION OF VERONICA LYNN NAMAN: PAGE 3 By Mr. Griffin 7 4 By Mr. Rector 74 5 6 E X H I B I T S 7 (Attached to transcript) 8 (Exhibits marked: 1-15 and 22-24) 9 NAMAN DEPOSITION EXHIBIT PAGE 10 Exhibit 1 Letter to Ms. Naman with 6 11 Medical Review Form, MVM 337-338 12 Exhibit 2 E-mail, MVM 339 6 13 Exhibit 3 Letter, Keneipp 001 6 14 Exhibit 4 Letters to MVM regarding 6 15 medical information of CSOs 16 Exhibit 5 Medical form 6 17 Exhibit 6 Medical Review Form 6 18 Exhibit 7 Medical form 6 19 Exhibit 8 Comp Care Partners documents 6 20 Exhibit 9 10/14/14 letter to Mrs. Jenkins 6 21 Exhibit 10 E-mails, MVM 639-642 6 22 Exhibit 11 E-mails and letter, 6 23 MVM 660-663 24 Exhibit 12 Physical and Medical Standards 6 25 Exhibit 13 Collective Bargaining Agreement 6 Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 3 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 2 (Pages 5 to 8) 5 1 E X H I B I T S C O N T I N U E D 2 (Attached to transcript) 3 (Exhibits marked: 1-15 and 22-24) 4 NAMAN DEPOSITION EXHIBIT PAGE 5 Exhibit 14 Accommodations for Disabilities 6 6 Exhibit 15 CSO Job Functions 6 7 Exhibit 22 Section B - Statement of Work 6 8 Exhibit 23 Contract and Addendum 6 9 Exhibit 24 FPS Region 2 document 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 1 P R O C E E D I N G S 2 (Naman Exhibits 1-15 and 22-24 were 3 marked for identification and attached to the 4 transcript.) 5 THE VIDEOGRAPHER: We are on the record 6 at 10:06 on August 24th, 2016. This is the video 7 deposition of Veronica Naman in the matter of 8 David L. Keneipp vs. MVM, Incorporated, in the 9 District Court, Northern Court -- District of 10 Oklahoma, Case Number 4:15-cv-00565, taking place at 11 Carr Workplaces at 1765 Duke Street, Alexandria, 12 Virginia. 13 The videographer is Randall Short, the 14 court reporter is Marney Mederos, both presenting on 15 behalf of Planet Depos. 16 Would counsel please voice identify 17 themselves for the record? 18 MR. GRIFFIN: Good morning. I'm John 19 Griffin, counsel for David Keneipp. 20 MR. RECTOR: My name is Jonathan Rector. 21 I am here on behalf of Defendant MVM, Inc., along 22 with Chris McHale, counsel for MVM, Inc. 23 THE VIDEOGRAPHER: Would the reporter 24 please swear in the witness? 25 THE REPORTER: Raise your right hand, 7 1 please. 2 THE WITNESS: Uh-huh. 3 Whereupon, 4 VERONICA LYNN NAMAN 5 being first duly sworn or affirmed to testify to the 6 truth, the whole truth, and nothing but the truth, 7 was examined and testified as follows: 8 EXAMINATION BY COUNSEL FOR PLAINTIFF 9 BY MR. GRIFFIN: 10 Q Good morning. Would you please state 11 your full name? 12 A Veronica Lynn Naman. 13 Q And how are you employed, ma'am? 14 A How? With MVM. 15 Q Beg your pardon? 16 A With MVM, Inc. 17 Q And tell me what you do. What's your job 18 title? 19 A My current title? 20 Q Yes. 21 A Operations manager. 22 Q All right. How long have you been the 23 operations manager for MVM? 24 A Approximately nine months. 25 Q All right. Tell us a little bit about 8 1 that job. 2 A I have over -- direct oversight of our 3 project managers in the field, and I monitor budgets 4 and work with the customer on any contractual issues 5 and quality control. 6 Q And who are your customers? Give us a 7 flavor, if you could. 8 A Social Security Administration, National 9 Institute of Health, the U.S. Marshals Service. 10 Q Those are the three? 11 A Three that I support, yes. 12 Q No problem. 13 And tell us a little bit about your 14 background. Where were you born and raised? 15 A I was born and raised in Fairfax, 16 Virginia. 17 Q All right. And where did you go to high 18 school? 19 A Hayfield Secondary. 20 Q And what education did you have after 21 high school? 22 A I went to Virginia Commonwealth 23 University and graduated with a bachelor's. 24 Q All right. How long have you worked for 25 MVM? Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 4 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 3 (Pages 9 to 12) 9 1 A Approximately 11-and-a-half years. 2 Q And where did you start? 3 A Where? Oh, what position? 4 Q Uh-huh. Yes, ma'am. I'm sorry. 5 A Technical assistant. 6 Q And describe that job, if you would. 7 A Pretty much an admin assistant to the 8 director of the division, and facilitated like 9 travel for the support units. 10 Q In which division were referring to when 11 you mentioned "the division"? 12 A Operations. 13 Q All right. And that's the division 14 you're the head of now? 15 A Yes. 16 Q All right. Good. 17 And share with us your employment history 18 with MVM starting with your -- beginning 13 years 19 ago. 20 A 11-and-a-half. 21 So I started as a technical assistant, 22 and then I moved into an operations -- a compliance 23 coordinator role, and then moved into a 24 quality-control manager, and then my current 25 position, operations manager. 10 1 Q All right. Have you been involved in HR 2 with MVM since you started? 3 A No. 4 Q When did you sort of enter the realm of 5 HR? 6 A I have not. 7 Q You've never had any role at all with the 8 HR or personnel at the -- at MVM? 9 A No. 10 Q Okay. What was your last job title 11 before becoming the -- did I say division manager? 12 Is that right? 13 A Operation manager. 14 Q Operation manager. Thank you for 15 correcting me. 16 What was your title before that? 17 A Operations administrative quality-control 18 manager. 19 Q All right. And within the MVM chain of 20 command, who is the CEO of the organization? 21 A Kevin Marquez. 22 Q Kevin who? 23 A Marquez. 24 Q Okay. And from your position up the 25 chain of command, if you would describe that, 11 1 please. 2 A I report directly to the director of 3 operations. 4 Q And who is the director of operations? 5 A Grace Muia. 6 Q And how do you spell her last name? 7 A M-U-I-A. 8 Q And moving upward, to whom does she 9 report? 10 A The senior vice president. 11 Q And who is that? 12 A Maria Campos. 13 Q And moving up from her, to whom does she 14 report? 15 A To the CEO. 16 Q Mr. Marquez? 17 A Mr. Marquez. 18 Q Marquez. Thank you for that. 19 In terms of people who report to you, who 20 reports to you moving downward in the chain of 21 command, if you will? 22 A Project managers. 23 Q And how many of those are there? 24 A Four. 25 Q At MVM, is there a director of HR? 12 1 A Yes. 2 Q And who is that? 3 A Currently? 4 Q Yes. 5 A Mary Provus. 6 Q And how long has Ms. Provus been in that 7 position? 8 A Approximately five months, six -- five 9 months. 10 Q No problem. 11 And who -- who was her predecessor? 12 A Chris McHale. 13 Q And how long was he in that position? 14 A Approximately since 2013, maybe, 15 approximately. 16 Q And do you know who his predecessor was 17 as the head of HR? 18 A Kevin Marquez. 19 Just to clarify, direct -- 20 Q Sure. 21 A Who his direct super -- what was the 22 question? Sorry. 23 Q No, I was just asking -- you'd mentioned 24 that -- when I asked you who was the HR, you said 25 Mary was. Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 5 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 4 (Pages 13 to 16) 13 1 A Uh-huh. Correct. 2 Q And then -- and then I asked who her 3 predecessor was, and you had said Chris McHale, and 4 then my next question was: Who was his predecessor 5 in that position? 6 A Oh, I don't remember. 7 Q That's okay. 8 A Okay. 9 Q That's fine. 10 And while we're on that subject, anytime 11 that I ask a question that seems confusing or -- 12 A Uh-huh. 13 Q -- in any way not a good question, will 14 you let me know that -- 15 A Sure. 16 Q -- so that I can rephrase it? 17 A Sure. 18 Q And, likewise, sometimes you're going to 19 know what my question is before I finish it -- 20 A Uh-huh. 21 Q -- and I may know what you're saying 22 before you finish your answer, but the court 23 reporter and the videographer to my left and right 24 will start glaring at us if we talk at the same 25 time. 14 1 So I'm going to endeavor as best I can to 2 allow you to finish your answer and ask if you -- 3 even if you know what my question is, let me finish 4 it before you -- 5 A Okay. 6 Q -- start answering. 7 Is that okay with you also? 8 A Yes. 9 Q Great. Thank you for that. 10 And share with us your -- your -- a 11 flavor of your job. As we sit here today, what does 12 your job consist of, your workday? 13 A My workday? 14 Q Uh-huh. 15 A I deal with -- make sure of contract 16 compliance, with deliverables in the contract, and 17 work with the PMs, speak to the customer with any 18 issues, schedulings, manpower, monitor the manpower. 19 Q And when you say "customer," those are 20 the three customers we referred to before? 21 A Yes, sir. 22 Q Okay. Fair enough. 23 And in terms of contracts, do you 24 negotiate the contracts with -- 25 A No. 15 1 Q -- MVM's customers? 2 A No. 3 Q Okay. Do you know who at MVM does that? 4 A No. 5 Q Fair enough. 6 And let me show you what's been marked as 7 Naman Exhibit 1, and you can take a look at that -- 8 A Sure. 9 Q -- and let me know when you've had a 10 chance to take a look at it. 11 A Okay. 12 Q And let me just ask you first, have you 13 ever met David Keneipp? 14 A No. 15 Q Okay. Have you ever spoken with him on 16 the phone, to your knowledge? 17 A Not to my knowledge. 18 Q Or ever exchanged e-mails with him? 19 A Possibly. It's been awhile. It's been 20 two years ago. I'm not sure. 21 Q But today you have no recollection of 22 that? 23 A No. 24 Q Fair enough, and I -- and I appreciate 25 that. 16 1 If you'll take a look at that letter for 2 just a moment -- first of all, let me ask you, how 3 often does MVM get a letter like this one where one 4 of your employees is -- you've been asked to remove 5 them as a CSO? 6 MR. RECTOR: Object to the form of the 7 question. 8 THE WITNESS: I don't know. Not often. 9 BY MR. GRIFFIN: 10 Q But is it like something that happens 11 once a year, once a month, once a week? 12 A Once a year -- 13 Q Okay. 14 A -- maybe. 15 Q So these medical disqualifications are a 16 relatively rare occurrence? 17 A Currently, yes. 18 Q Okay. Has it always been so? 19 A Please clarify. 20 Q Sure. 21 You said now it's a rare occurrence that 22 you get these sorts of letters where one of your 23 employees is asked to be removed as a CSO, and so 24 I'm asking: Was there ever a time when it was not 25 rare, where it was happening more often? Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 6 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 5 (Pages 17 to 20) 17 1 A Not that I -- no, I can't recall. 2 Q And insofar as your career with MVM, for 3 what period of time would these sorts of letters 4 from the Marshals Service come in that notifies you 5 that a given CSO can no longer perform as a CSO? 6 MR. RECTOR: Object to the form of the 7 question. 8 THE WITNESS: I don't know. I don't -- 9 BY MR. GRIFFIN: 10 Q Well, I don't think we're communicating. 11 My question is: How long were you 12 getting these sorts of letters, since when? 13 A Since the start of the -- 11/1/13, when 14 we took over 10th Circuit. 15 Q Okay. And were you reviewing these sorts 16 of letters before 11/1/13 for other contracts with 17 the Marshals Service for different circuits? 18 A Reviewing? 19 Q I'm staying -- 20 A Yes. 21 Q -- focused on this sort of letter -- 22 A Uh-huh. 23 Q -- the one that would come to you -- 24 A Yes. 25 Q -- that says this CSO is no longer able 18 1 to work as -- 2 A Yes. 3 Q -- this CSO can no longer perform under 4 the contract. 5 A Yes. 6 Q Are you with me? 7 A Uh-huh. 8 Q Okay. How long -- how many years have 9 you been receiving these kinds of letters, since 10 what year approximately? 11 A Approximately till 2013. 12 Q Okay. You were not serving in the -- in 13 this position of CSO operations manager before 2013? 14 A Yes, I was. 15 Q Okay. Well, who was receiving the 16 letters in these other circuits besides the 17 10th Circuit? 18 A Me. 19 Q Okay. Well, my question is: When did 20 you -- let me see if I can try this again. 21 When did you become the CSO operations 22 administrative and quality assurance manager? 23 A 2012, approximately. 24 Q Okay. Is that when you began to be the 25 person at MVM who would receive communications from 19 1 the Marshals Service about the medical 2 disqualification of your employees who were CSOs? 3 A Yes, I receive these. 4 Q Okay. So do you still receive them 5 today, or is someone else receiving them? 6 A Yes, I receive them. 7 Q Okay. You're still receiving them? 8 A Uh-huh. 9 Q Okay. Great. 10 So you have been receiving these sorts of 11 letters since 2012? 12 A Approximately. 13 Q Okay. And I'm not going to hold you to 14 this, but do you have a ballpark of how many of 15 these letters you have received over those four 16 years? 17 MR. RECTOR: Object to the form of the 18 question. 19 THE WITNESS: I have no -- I have no 20 idea. 21 BY MR. GRIFFIN: 22 Q More than ten? 23 A Approximately. 24 Q Okay. 25 A Approximately ten, fifteen. 20 1 Q All right. And let me just ask you this: 2 Look at the second paragraph of the letter signed by 3 Mr. Cornelious. 4 A Uh-huh. 5 Q Do you see the sentence that says, "If 6 you have any questions or concerns regarding this 7 decision..."? Do you see that language? 8 A Yes. 9 Q And which decision did you take that as 10 being referred to there by Mr. Cornelious? 11 A Rephrase your question. 12 Q Yeah. 13 What -- what decision did you take this 14 as referring to? When you read these letters, what 15 does it mean to you when it talks about "this 16 decision"? 17 A I don't know why that's there. 18 Q I beg your pardon -- 19 A Uh-huh. 20 Q -- and object to the response, and I'm 21 not fussing at you. 22 A Uh-huh. 23 Q I'm not asking you why it's there. 24 A Uh-huh. 25 Q My question was: What do you -- which Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 7 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 6 (Pages 21 to 24) 21 1 decision is being referred to when you read this? 2 A The decision regarding the status -- his 3 medical qualification status. 4 Q Sure. 5 And how long has this language -- where 6 Mr. Cornelious gives you the opportunity to address 7 concerns or questions about the decision, how long 8 has this language been in letters from the Marshals 9 Service to you? 10 A I don't recall. 11 Q Has it always been there since 2012? 12 A I don't recall. 13 Q Okay. Now, I will ask you a question I 14 think you answered a moment ago. What did you take 15 that to mean when he asks you -- with respect to 16 Mr. Keneipp, asks you if you have any questions or 17 concerns regarding this decision to contact Phil 18 Cornelious? What did you take that to mean when you 19 received it? 20 A I don't know what he meant by that. 21 Q Okay. From -- in any of these letters, 22 have you ever called him at the number listed in the 23 letter and asked, Mr. Cornelious, what do you mean 24 by this when you -- when you say to us that we can 25 present questions and concerns about a decision 22 1 affecting one of MVM's CSOs? 2 A Repeat your question. 3 Q Sure. 4 You said a moment ago you didn't know 5 what this meant -- 6 A Uh-huh. 7 Q -- and so my question is: Did you ask 8 Mr. Cornelious what it meant? 9 A Oh, no. 10 Q And that's true up until today? 11 A Correct. 12 Q Now, if you wouldn't mind, take a look at 13 Exhibit Number 13, which I'm going to hand you, and 14 turn, if you would, to page 17. 15 But first I'll just get you to identify 16 that as the -- 17 A Uh-huh. 18 Q -- the Collective Bargaining Agreement 19 between MVM and its CSOs association? 20 MR. RECTOR: Counsel, do you have an 21 additional copy of that, by any chance? 22 MR. GRIFFIN: I think I do. I think I 23 do, and I apologize. 24 There you go. 25 MR. RECTOR: Thank you, sir. 23 1 MR. GRIFFIN: Sure. 2 BY MR. GRIFFIN: 3 Q Is that what that is? 4 A It appears to be, yes. 5 Q Okay. Turn to page 17, if you would. 6 A Uh-huh. 7 Q And when you're there, just let me know. 8 A I'm here. 9 Q And let me just ask you first, when you 10 received Exhibit Number 1, what did you do after you 11 received it? What actions, if any, did you take 12 after receiving the letter signed by Mr. Cornelious? 13 A I took it to HR. 14 Q And took it -- and who did you take it to 15 at HR? 16 A To Chris McHale. 17 Q Okay. What happened then? 18 A I don't know what happened with it then. 19 Q Did you speak with him when you took it 20 to him? 21 A No. 22 Q Did you e-mail it to him? 23 A Yes. 24 Q Was it an in-person conversation? 25 A I e-mailed it. 24 1 Q Okay. And what happened next? 2 A I don't know. 3 Q Is it fair to say the sum total of your 4 involvement was receiving the letter from 5 Mr. Cornelious and then e-mailing it to Mr. McHale? 6 A Please repeat the question. 7 Q Yes. 8 Was the only thing you did as a result of 9 Mr. Cornelious' letter to you -- was the only thing 10 you did was to e-mail to it Mr. McHale? 11 A Yes. 12 Q Okay. You didn't investigate the 13 circumstances surrounding the disqualification of 14 Mr. Keneipp or anything else? 15 A No. 16 Q All you did was e-mail it to Mr. McHale? 17 A Yes. 18 Q Okay. Now, let me just ask you this: Do 19 you know of anyone at MVM who offered any input, 20 concern, or questions about the recommendation or 21 decision to disqualify Mr. Keneipp on the basis of a 22 medical disqualification? 23 MR. RECTOR: Objection as to the form of 24 the question. 25 THE WITNESS: Please repeat the question. Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 8 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 7 (Pages 25 to 28) 25 1 BY MR. GRIFFIN: 2 Q I would be -- I would be glad to. 3 Do you know of anyone who responded to 4 Mr. Cornelious' invitation to contact him if there 5 were concerns or questions about the 6 disqualification of Mr. Keneipp? 7 A No. 8 Q Okay. Have you heard from any source, 9 from anywhere, anyplace that anybody from MVM 10 offered any input or concern about Mr. Keneipp's 11 disqualification as evidenced by Exhibit Number 1? 12 MR. RECTOR: Objection as to the form of 13 the question. 14 THE WITNESS: Please repeat that 15 question. 16 BY MR. GRIFFIN: 17 Q Sure. 18 Where it talks about questions or 19 concerns -- 20 A Uh-huh. 21 Q -- have you heard from any -- any source 22 anywhere that MVM offered any concerns or question 23 about Mr. Keneipp's disqualification? 24 MR. RECTOR: Same objection. 25 You may answer. 26 1 THE WITNESS: I don't know. That was 2 being handled by HR. 3 BY MR. GRIFFIN: 4 Q Let me object as not being responsive. 5 My question's not about who's handling 6 it. 7 I'm just asking if you've heard hearsay 8 or any other -- through any other means that MVM did 9 offer any concern or question about the medical 10 disqualification of Mr. Keneipp. 11 A No. 12 Q Okay. And if you'd look at Exhibit 13 -- 13 excuse me -- yeah, Exhibit 13, page 17, and look at 14 subdivision D when you get there and let me know 15 when you are. 16 A Okay. 17 Q And you are familiar with the agreement 18 between the USCSO and MVM, right? 19 A No. 20 Q You're not? 21 A I mean, I'm aware there is one, but no. 22 That's handled by our legal counsel. 23 Q Okay. That's Mr. McHale? 24 A Uh-huh. Yes. 25 Q Okay. No problem. 27 1 And let me just ask you as a factual 2 matter, then, where the statement is made in here 3 that MVM agrees to review each denial and request 4 for the removal made by USMS to ensure accuracy, 5 fairness and consistency within the contract, are 6 you -- do you have any knowledge of whether or not 7 MVM did that with respect to Mr. Keneipp's 8 disqualification or not? 9 A I don't know. Again, I don't handle the 10 CBA. 11 Q No problem. 12 Okay. But you've not heard anything 13 about this from any other source? 14 A No. 15 Q Okay. Fair enough. 16 And let me ask you this: Why -- why does 17 Mr. Cornelious' letter go to you? Why is the letter 18 written to you? 19 A I don't know. 20 Q Did you -- it wasn't you who supplied 21 your name to Mr. Cornelious to contact in the event 22 one of your employees was going to be medically 23 disqualified? 24 A Please repeat the question. 25 Q Sure. 28 1 You don't know who gave the Marshals 2 Service your name to send letters such as Naman 3 Exhibit 1? 4 A No, I do not. 5 Q Okay. Have you ever asked anyone why you 6 receive those letters? 7 A No. 8 Q And do you know today why you receive 9 those letters? 10 A Yes. 11 Q Why? 12 A I'm just the point -- I'm the point of 13 contact for the process to facilitate the paperwork. 14 Q Well, I know that. 15 A Uh-huh. 16 Q But when I asked you why you were the 17 person, I thought you said you didn't know. 18 A Well, the point of contact for just 19 facilitating the paperwork, not reviewing and doing 20 terminations. 21 Q And why are you that person? 22 A Why am I that person? 23 Q Uh-huh. 24 A Because I over -- I support the contract. 25 Q Okay. And who appointed you to that Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 9 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 8 (Pages 29 to 32) 29 1 position? 2 A I don't recall. 3 Q Okay. And have you ever -- when you 4 receive these letters -- I think you referred to 5 yourself as -- did you say a clearinghouse? What 6 was the word you used about -- 7 A Clearinghouse? 8 Q -- the documents? How do you see 9 yourself? 10 A With the documents? 11 Q Yes. 12 A For the medical process, just receive, 13 collect and make sure the components or the exams 14 are there, and submit to the Marshals Service. 15 Q And no more than that? 16 A Correct. 17 Q Okay. It's okay if it hasn't happened, 18 but at any point in the four -- roughly four years 19 you've been doing that, have you discussed with 20 anyone at MVM this language from Philip Cornelious 21 that asks you to address concerns and questions 22 about a decision to disqualify one of your CSOs? 23 A Again, I take this and submit it to HR, 24 so... 25 Q Let me object as not responsive. 30 1 A Uh-huh. 2 Q My question is: Have you had any 3 conversations with anybody at MVM of why this 4 language is in these letters from Mr. Cornelious 5 inviting MVM to -- to submit concerns or questions 6 about a decision to disqualify one of MVM's CSOs? 7 A No. I don't know why that language is in 8 there. 9 Q Right, but why haven't you asked? 10 A Because I don't handle the actual -- I 11 just receive and submit the paperwork. 12 Q To Mr. McHale? 13 A Correct, HR. 14 Q But have you asked him what that language 15 is doing in letters to you? 16 A To me? 17 Q Yes. 18 A No. 19 Q Okay. And do you know why you're getting 20 those letters instead of him? 21 A Yes, because I facilitate the medical 22 process. 23 Q And I'll ask you once more, do you know 24 why you facilitate the medical process, as opposed 25 to Mr. McHale? 31 1 MR. RECTOR: Object to the form of the 2 question. 3 Go ahead. 4 THE WITNESS: Because I'm the support 5 coordinator for the contract. 6 BY MR. GRIFFIN: 7 Q We're talking in circles. 8 My question is: Why are you the person 9 instead of him? I know you are. 10 A I don't know. 11 Q Okay. Certainly, you've not been trained 12 by MVM to offer any concerns or questions about one 13 of the disqual -- medical disqualification memos 14 regarding one of your CSOs, right? 15 MR. RECTOR: Object to the form of the 16 question. 17 THE WITNESS: Please repeat that. 18 BY MR. GRIFFIN: 19 Q Sure. 20 Going back to the language -- 21 A Uh-huh. 22 Q -- that invites MVM to submit questions 23 and concerns about a decision to disqualify one of 24 its CSOs, you've not been trained in how to deal 25 with that language, have you? 32 1 A Please repeat the question again. 2 Q Sure. 3 A I'm sorry. 4 Q Nobody at MVM has trained you as to what 5 to do about requests from Mr. Cornelious to submit 6 concerns and questions about a decision to 7 disqualify one of MVM's CSOs, right? 8 A Well, I'm going by the contract -- by the 9 contract standards, requirements. 10 Q Okay. Let me object to the 11 responsiveness. 12 I'm going to try this once more, and you 13 tell me if my question's bad. 14 A Okay. 15 Q Has anybody at MVM trained you on what 16 you're supposed to do when the United States 17 Marshals Service invites you to submit concerns and 18 questions about one of its decisions to disqualify 19 one of your CSOs? 20 A Yes. I go to HR. 21 Q And tell me the training you received on 22 what to do when the USMS asks you to submit any 23 question or concern about a disqualification of one 24 of MVM's CSOs. Describe that training. 25 A Again, I don't know why this language is Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 10 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 9 (Pages 33 to 36) 33 1 in here. I just receive the information and ensure 2 it's the CSO with his Social and I submit to HR. 3 Q So I think the answer would be no, but I 4 need you to answer it as directly as you can. 5 Has anybody at MVM trained you on what 6 that lang -- what you're supposed to do when the 7 USMS writes you, Ms. Naman, and says if you have 8 concerns or questions about our decision about a 9 CSO, please let Mr. Cornelious know? 10 My question is: Has anybody at MVM 11 trained you what you're supposed to do when you 12 receive that invitation? 13 A Train me? 14 Q Sure. 15 A I mean, no. I'm going by our -- the 16 contract, following the contract. 17 Q Okay. Let me object to responsiveness. 18 I'm not talking about the basis for what 19 you're doing. 20 A Uh-huh. 21 Q I'm talking about the training that MVM 22 gave you. 23 Have you ever been trained on what you're 24 supposed to do when the Marshals Service invites MVM 25 to submit concerns or questions about a decision 34 1 about the medical suitability about one of your 2 CSOs? 3 A I don't -- again, I don't handle these. 4 If there's complaints, it's handled by HR for 5 questions -- complaints and concerns. 6 Q Let me object to responsiveness. 7 I'm not talking about whose department it 8 is. 9 I'm just asking, since you receive the 10 letter -- 11 A Yes. 12 Q -- I'm asking you whether MVM has ever 13 trained you on -- 14 A Yes. 15 Q -- how to deal with -- let me finish my 16 question. 17 A Uh-huh. 18 Q -- on how to deal with Mr. Cornelious' 19 invitation to MVM to submit concerns and questions 20 about a decision about the medical suitability of 21 one of MVM's CSOs. 22 A Yes. 23 Q And who trained you on that? 24 A HR. 25 Q And who is HR? 35 1 A Chris McHale. 2 Q And what did he train you to do with 3 those questions when -- when Mr. Cornelious, in this 4 case, asks for input and concerns and questions 5 about the decision, how were you trained to address 6 that invitation from the USMS? 7 A Once I get the letter, I submit to HR. 8 It's handled by HR. 9 Q Okay. Let me object to the 10 responsiveness. 11 I'm not talking about what you're 12 supposed to do with the letter. 13 A Uh-huh. 14 Q I'm talking about the language that 15 invites feedback from MVM, questions or concern. 16 Are you with me? 17 A Uh-huh. 18 Q Okay. What were you trained as to what 19 that meant? 20 A It meant submit the -- all those 21 inquiries go through HR. 22 Q You were taught that the language that 23 Mr. Cornelious says to submit them to him, you were 24 trained that that really means to submit it to 25 Mr. McHale? 36 1 MR. RECTOR: Objection to the form of the 2 question. 3 THE WITNESS: No. I don't know why this 4 language is here, but, in general, for employees' 5 concerns, they go to HR. 6 BY MR. GRIFFIN: 7 Q Is it safe to say MVM has never trained 8 you on what that language means? 9 MR. RECTOR: Objection to the form of the 10 question. Misstates prior testimony. 11 Go ahead. 12 MR. GRIFFIN: Let me object to the 13 sidebar. 14 And what's the basis of that objection? 15 MR. RECTOR: She did not say that. She 16 said Mr. -- 17 MR. GRIFFIN: I didn't say she said it. 18 MR. RECTOR: You did. 19 MR. GRIFFIN: No, I didn't. 20 MR. RECTOR: That's fine. 21 MR. GRIFFIN: The record will speak for 22 itself. 23 BY MR. GRIFFIN: 24 Q Is it true you were never trained by MVM 25 on what that language means that Mr. Cornelious Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 11 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 10 (Pages 37 to 40) 37 1 writes to you and says if you have concerns or 2 questions, please let me know? You were never 3 trained by MVM on what that means, right? 4 A On this specific language? 5 Q Yes, in the second paragraph of 6 Exhibit 1. 7 A No, no. Again, I just forward it to HR. 8 Q Right. 9 And you've not heard what it means from 10 anybody at MVM up till today right now as we're 11 speaking, right? 12 A Repeat the question. 13 Q Even up to now in this very moment where 14 we are today, no one at MVM has explained to you 15 what that means? 16 A No. I don't know why this is in 17 Phil's -- this letter. 18 Q Okay. No one has shared with you that's 19 designed to help the Marshals Service avoid mistakes 20 in medical disqualification of CSOs? 21 A I don't know why it's there. 22 Q Right. 23 Nobody at MVM has shared that with you? 24 A No. 25 Q Okay. All right. Then if you don't mind 38 1 taking a look at Defendant's Exhibit 2. 2 THE WITNESS: Thanks. 3 MR. RECTOR: Uh-huh. 4 BY MR. GRIFFIN: 5 Q And tell us what that is, if you don't 6 mind. 7 A It looks like a letter from CSO David 8 Keneipp. 9 Q And did you receive that letter? 10 A It looks familiar. I don't recall the 11 contents of it, but I believe I was copied on an 12 e-mail. 13 Q And who, if anyone, at MVM responded to 14 that letter? 15 A Repeat the question. 16 Q Who, if anyone, at MVM responded to 17 Mr. Keneipp's letter? 18 MR. RECTOR: Object to the form of the 19 question. 20 THE WITNESS: Who responded to it? 21 BY MR. GRIFFIN: 22 Q Yes. 23 A Responded to who? 24 Q Mr. Keneipp. 25 A I don't know. 39 1 Q Did you? 2 A I don't recall speaking to him, no. 3 Q Why not? 4 A Because it was being handled by my direct 5 supervisor at the time. 6 Q Who was? 7 A Mr. Wholean. 8 Q Mr. who? 9 A Mr. Greg Wholean. 10 Q And what's his job title? 11 A He was the director of operations. 12 Q Okay. Are you his successor? 13 A No. 14 Q Okay. Is he still there? 15 A No. 16 Q And where is he now? 17 A I don't know. 18 Q What happened to him? 19 A I don't know. 20 Q You don't know if he quit, fired, or 21 retired? 22 MR. RECTOR: Object to the form of the 23 question. 24 THE WITNESS: That's -- that's HR. I 25 don't know. 40 1 BY MR. GRIFFIN: 2 Q I got that. 3 But as we sit here today, you don't know 4 whether he quit, was fired, or retired? 5 A No. 6 Q Okay. And when did he leave the scene? 7 A Approximately -- let me think -- 8 December 2014, maybe. 9 Q Who at -- who at MVM would be in the best 10 position to have the information to be able to 11 contact Mr. Cornelious in the event that there are 12 discrepancies or concerns about a given CSOs medical 13 disqualification? 14 A Repeat the question. 15 Q Sure. 16 Who at MVM has the best information to be 17 able to respond to Mr. Cornelious in the event of 18 discrepancies, concerns, or questions about the 19 disqualification of one of MVM's CSOs? 20 A About the disqualification? 21 Q Yes, sir -- yes, ma'am. 22 A If a CSO has a complaint or concern, 23 they'll send it to me, and then I would -- I will 24 forward it to the Marshals Service. 25 Q Let me object to partial responsiveness. Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 12 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 11 (Pages 41 to 44) 41 1 I'm not talking about with the CSO's 2 complaints or concerns. I'm talking about MVM's 3 concerns. 4 A HR. 5 Q Okay. That would be Mr. McHale? 6 A Correct. 7 Q Okay. So your thinking in reading that 8 letter, if anybody should respond to Mr. Cornelious' 9 invitation for concern or questions, it would be 10 Mr. McHale, not you? 11 A Yes. 12 Q Okay. And I'm assuming you don't do any 13 follow-up to what Mr. McHale does or doesn't do once 14 you e-mail him a copy of Mr. Cornelious' letter? 15 A No. 16 Q And I'm sensing that you do not ever 17 review the CSO's fitness-for-duty file at any point? 18 A Repeat that question. 19 Q Yes. 20 In other words, the -- you'll see on 21 Exhibit 1 that there is an attached Medical Review 22 Form, right? 23 A Yes, sir. 24 Q And you'll see in the bottom paragraph 25 there that it's -- it says something to the effect 42 1 that -- the second sentence in the last paragraph 2 says, "According to his personal doctor, the CSO's 3 back pain precludes his ability to run..." 4 Do you see that sentence? 5 A I see that. 6 Q Right. 7 My question is: Do you ever review any 8 of the fitness-for-duty file to determine whether or 9 not the statements that are made in these memos are 10 accurate or not? 11 A No. I'm not -- 12 Q Do you know any -- I'm sorry. Go ahead. 13 A I'm not a doctor, no. 14 Q Okay. Let me object to the 15 nonresponsive. 16 I appreciate that you're not a physician, 17 but my question is: You -- as part of your job in 18 interfacing with the Marshals Service, you never 19 review the CSO's fitness-for-duty file to determine 20 whether or not a statement like this is accurate or 21 not; is that true? 22 A My job is to look at -- to receive the 23 paperwork, make sure it's the employee with their 24 Social, and make sure components of the exam are 25 attached, or follow-up, and submit. 43 1 Q And you've been trained to do no more 2 than that, right? 3 A Yes. 4 Q Okay. Do you know -- and it's okay if 5 you don't, but do you know if anybody at MVM reads 6 the actual Medical Review Form to determine whether 7 or not there's any mistakes being made in the form? 8 A Mistakes? 9 Q Sure. 10 A Repeat the question again. 11 Q Sure. 12 You see the form that's attached to the 13 letter -- 14 A Yes. 15 Q -- that Mr. Cornelious sent to you -- 16 A Uh-huh. 17 Q -- right? 18 When you get a letter of 19 disqualification, the Marshals Service attaches a 20 copy of the Medical Review Form, correct? 21 A Yes. 22 Q Okay. And you can see here where the 23 doctor -- I mean, where -- yeah, Dr. Goldhagen 24 makes -- says this, and I quote, According to his 25 personal doctor, the CSO's back pain precludes his 44 1 ability to run. 2 Do you see that? 3 A Yes, I see that. 4 Q And "precludes" means what to you? 5 A I don't know what that means. 6 Q You don't know what the word "preclude" 7 means? 8 A No, because I -- no. 9 Q Okay. And going back to my original 10 question, do you know whether anybody at MVM reviews 11 the medical form to determine whether or not the 12 statements made in the form are accurate or not? 13 A I do not know. 14 Q And if it's anybody's job at MVM to 15 review this form, who would it be? 16 MR. RECTOR: Object to the form of the 17 question. 18 THE WITNESS: A doctor. 19 BY MR. GRIFFIN: 20 Q Who is the MVM doctor? 21 A We don't have anybody. 22 Q Well, then why did you tell me a doctor 23 when I asked who at MVM's responsibility it is to 24 review these forms? 25 MR. RECTOR: Object to the form of the Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 13 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 12 (Pages 45 to 48) 45 1 question. 2 THE WITNESS: I submit it to -- I receive 3 it, and I submit it to HR. So what happens to it 4 after that, I don't know. 5 BY MR. GRIFFIN: 6 Q All right. And in Mr. Keneipp's case, 7 and it's okay if you don't know, but do you know 8 whether anybody at MVM ever -- up until the date 9 that MVM fired Mr. Keneipp, did anybody look into 10 whether or not the statements made in the form 11 that's attached to Naman Exhibit Number 1 were 12 accurate or not? 13 A I don't know. 14 Q Now, in terms of the chronology, tell the 15 jury the date of the letter to you from 16 Mr. Cornelious. 17 A The date? 18 Q Uh-huh. 19 A October 1st, 2014. 20 Q And the letter from Mr. Keneipp, when was 21 it dated? 22 A August 23rd, 2014. 23 Q And when -- well, take a look, if you 24 don't mind, at Exhibit Number 3, Naman Exhibit 25 Number 3, and ask if you can confirm that, in fact, 46 1 Mr. Keneipp was fired on October the 2nd, 2014. 2 A Repeat the question. 3 Q Sure. 4 Can you confirm that MVM fired 5 Mr. Keneipp on October the 2nd, 2014? 6 A I can't confirm. Oh, that's the date of 7 this letter, yes. 8 Q Yes. 9 How much time had elapsed between 10 Mr. Cornelious' letter to you and the letter to 11 Mr. Keneipp firing him? How much time elapsed 12 between those two dates? 13 A For these dates? 14 Q Yes. 15 A One day. 16 Q Okay. Now, the way it works, the form 17 that you see attached to the letter to you, isn't it 18 true that the first time Mr. Keneipp would receive 19 that form is when he was fired by MVM? 20 MR. RECTOR: Object to the form of the 21 question. 22 THE WITNESS: Repeat the question. 23 Sorry. 24 BY MR. GRIFFIN: 25 Q Sure. 47 1 The first time Mr. Keneipp gets to see 2 the dis -- the form that says that his personal 3 physician says he can't run is when you -- when 4 he -- when MVM sends him the letter firing him, 5 correct? 6 A Since this letter -- repeat the question. 7 Sorry. 8 Q The first time Mr. Keneipp gets to review 9 the Medical Review Form that says his doctor says 10 that he can't run is when he's fired, right? 11 MR. RECTOR: Object to the form of the 12 question. 13 Go ahead. 14 THE WITNESS: Yes. 15 BY MR. GRIFFIN: 16 Q Okay. In other words, the memo that's 17 sent to you on October the 1st is not sent to 18 Mr. Keneipp, is it? 19 A It is sent. 20 Q No. Take a look at it and confirm that 21 that letter only -- 22 A Oh. 23 Q -- goes to you, not to Mr. Keneipp. 24 A Yes. The letter from Marshals, yes -- 25 Q Right. 48 1 A -- directly to me. 2 Q On October 1st, only MVM knows that the 3 Medical Review Form says that he's unable to run, 4 correct? Mr. Keneipp doesn't know that, right? 5 MR. RECTOR: Object to the form of the 6 question. 7 THE WITNESS: At this point in time once 8 I receive it, no, he does not. 9 BY MR. GRIFFIN: 10 Q Okay. And at that point in time, the 11 only people who could actually lodge a concern or a 12 question about the accuracy of the Medical Review 13 Form would be MVM on October the 1st, 2014, right? 14 A Repeat the question. 15 Q Sure. 16 Only MVM has that form on October 1st, 17 not Mr. Keneipp, right? 18 A Correct. 19 Q So the only party who could lodge a 20 concern or an issue or a question to USMS before him 21 being fired would be MVM, right? 22 A Repeat the ques -- I'm sorry. Repeat the 23 question. 24 Q Sure. 25 On October 1st -- Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 14 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 13 (Pages 49 to 52) 49 1 A Yes. 2 Q -- the only -- the only party who knows 3 that the doctor had -- the MR -- the Medical Review 4 Form says he can't run is MVM, right? 5 A That sees this letter? 6 Q Yes -- 7 A Well, I don't -- 8 Q -- the letter and the enclosure. 9 A Well, I don't know what it says. I just 10 review the contents of the name and make this -- 11 make sure it's the CSO. 12 Q Right. But you read it this morning? 13 A Yes. 14 Q And you saw the sentence in the letter 15 that says that he's precluded from running because 16 his personal physician says he can't run? You see 17 that language, right? 18 A Yes. 19 Q Right. 20 And my question is: On October 1st, the 21 only party with knowledge of that statement by the 22 FOH doctor is MVM, right? 23 MR. RECTOR: Object to the form of the 24 question. 25 THE WITNESS: Yes. 50 1 BY MR. GRIFFIN: 2 Q Okay. And as far as -- and what you can 3 confirm with us is that within 24 hours of the date 4 that Mr. Cornelious invited that feedback, question, 5 or concern, MVM had -- had fired him, right, within 6 24 hours? 7 A I don't know. I don't recall. 8 Q Look at the date and confirm. 9 A Yes. Oh, I don't know -- the letter, I 10 don't handle again. I don't see these letters. 11 Q But you've seen it this morning? 12 A Yes. 13 Q And we agreed that 24 hours after the -- 14 that you received the -- 15 A Yes. 16 Q -- Medical Review Form, MVM did, in fact, 17 fire him, right? 18 A Yes. 19 Q And you're unaware of any effort that MVM 20 made to determine whether or not the statement made 21 in the MRO -- the Medical Review Form was accurate 22 or not, correct? 23 A I don't know what happened after I submit 24 it. 25 Q Fair enough. 51 1 And who is Jenny Jenkins? 2 A She's an HR coordinator. 3 Q In a different department than you? 4 A Yes. 5 Q And to whom does she report? 6 A Chris McHale. 7 Q Okay. And I think I know the answer, but 8 let me just confirm. 9 A Sure. 10 Q You did not read the Medical Review Form 11 that was attached to the letter to you from 12 Mr. Cornelious, correct? 13 A Correct. I just reviewed the name and 14 the last four of the Social. 15 Q Do you know of anything MVM does to help 16 the USMS in preventing errors or mistakes made by 17 FOH during the fitness-for-duty process? 18 MR. RECTOR: Object to the form of the 19 question. 20 THE WITNESS: Repeat that question. 21 MR. GRIFFIN: What's the basis of that 22 objection? 23 MR. RECTOR: It's vague. There's no 24 identification. You're asking about MVM as an 25 entity. 52 1 MR. GRIFFIN: Okay. Read the question 2 back to her, please. 3 (The Reporter read the record as 4 follows: "Question: Do you know of 5 anything MVM does to help the USMS in 6 preventing errors or mistakes made by FOH 7 during the fitness-for-duty process?") 8 BY MR. GRIFFIN: 9 Q You may answer that. 10 A Fitness for duty? No. Again, that's 11 handled by HR. 12 Q Let me object to responsiveness. 13 I'm not asking you whose responsibility 14 it is. If you do know of any efforts made to do 15 that, I would like you to tell me. If you don't 16 know of any efforts that are made, I would like you 17 tell me that. 18 A I don't know. 19 Q Okay. And how many folks work for MVM, 20 employees? 21 A For the total company? 22 Q Yes, ma'am. 23 A Approximately 2,000, maybe. 2,000. 24 Q And I think you described this, but I 25 want you to confirm that it is a relatively rare Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 15 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 14 (Pages 53 to 56) 53 1 occurrence that you are directed by the USMS to 2 remove one of your employees who are CSOs, right? 3 A I don't know. Yes. Rare? 4 Q Yeah. It doesn't happen very often? 5 A I don't know how -- I mean, I have 6 received them. I don't know or recall how often. 7 Q But when I asked you whether it was once 8 a month, you thought not quite, right? 9 A Right. 10 Q Okay. Well, I mean, would you agree that 11 is somewhat rare to have it happen only once a month 12 that one of your 2,000 employees are asked to be 13 removed for medical disqualification? 14 A Repeat the question. 15 Q Sure. 16 Do you consider that relatively rare to 17 get a medical disqualification only once a month or 18 even less frequently? 19 A I don't know how to... 20 Q How would you characterize it? 21 A I don't know. I don't make the 22 determination. I don't -- 23 Q Okay. My question is not who makes the 24 determination. 25 My question is: How often do you get one 54 1 of these letters from Mr. Cornelious or his 2 successor at USMS? 3 A Again, maybe -- I don't -- I don't know. 4 Maybe once a year, once every six months, if that. 5 I don't know. 6 Q Okay. Fair enough. 7 In your position, are you ever asked to 8 transmit information from MVM's physicians who 9 examine the CSOs, or not? 10 A Repeat the question. 11 Q Sure. 12 Are you asked as part of your job to 13 transmit the actual physical examinations conducted 14 by MVM's doctors on its CSOs? 15 MR. RECTOR: Object to the form of the 16 question. 17 THE WITNESS: We don't have -- MVM 18 doesn't employ doctors. 19 BY MR. GRIFFIN: 20 Q Okay. It's all right if you don't know 21 this. Either you're aware or not aware that MVM 22 does, in fact, hire the doctors to conduct these 23 examinations on CSOs. 24 Is that something you're hearing for the 25 first time today? 55 1 MR. RECTOR: Object to the form of the 2 question. 3 THE WITNESS: No, we don't hire -- we 4 don't employ doctors. 5 BY MR. GRIFFIN: 6 Q Let me object to the responsiveness. 7 My question is: Are you hearing from me 8 for the first time that MVM does, in fact, select 9 and pay the doctors who examine your CSOs in terms 10 of their fitness for duty? Are you hearing that 11 from me for the first time today? 12 A Yes, we don't employ doctors. MVM does 13 not employ doctors. 14 Q Okay. Let me object to the 15 responsiveness. 16 I'm not talking about employing people as 17 employees. 18 A Uh-huh. 19 Q I'm talking about hiring and paying the 20 physicians who examine CSOs. Either you know they 21 do this, or you don't know they do it. 22 I'm just asking, what's your 23 understanding of that? 24 A We use a third-party service provider -- 25 Q And who -- 56 1 A -- to facilitate. 2 Q And who selects them? 3 A Who selects the vendor? 4 Q Yes. 5 A I don't know who selected the vendor. 6 Q You don't know whether it's MVM or not? 7 A MVM. 8 Q Okay. And who pays them? 9 A The vendor? 10 Q Yes -- 11 A MVM. 12 Q -- the doctors. 13 A No. We use a third-party vendor. 14 Q Right, but vendor has to be doctors to do 15 the fitness examinations, right? 16 A No. 17 Q Okay. Who performs the fitness-for-duty 18 examinations on your CSOs? 19 A Licensed physicians. 20 Q That's what I meant by "doctor," right? 21 A Uh-huh. 22 Q You mean "physician" to be "doctor" too, 23 right? 24 A Yes. 25 Q And what I'm saying is that the people Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 16 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 15 (Pages 57 to 60) 57 1 who are conducting those examinations are selected 2 by MVM, right? 3 A No. 4 Q Okay. Who selects them? 5 A Our third-party vendor. 6 Q Who hires the third-party vendor? 7 A MVM. 8 Q Okay. And who pays them? 9 A MVM. 10 Q Okay. Getting back to my original 11 question, those examinations performed by MVM's 12 vendor, do they come to you for transmittal to HR, 13 or are those kinds of documents you don't see as 14 part of your job? 15 A Exams? 16 Q Yes. 17 A They come to me, and I submit to the 18 Marshals. 19 Q And I'm assuming that, like the letter 20 you got from Mr. Cornelious, you don't review any 21 medical information. You just transmit to it 22 somebody else? 23 A Correct. Once I receive it, I look for 24 their name, their Social -- the last four of their 25 Social, and make sure all the components of the 58 1 exam -- attachments are attached, and submit. 2 Q Okay. And who do you give it to? 3 A Marshals Service. 4 Q Okay. You transmit it directly to the 5 Marshals Service -- 6 A Yes. 7 Q -- not to HR? 8 A Correct. 9 Q Okay. But this letter from 10 Mr. Cornelious, you give it to HR? 11 A Yes. 12 Q Okay. And who -- if you don't know, it's 13 okay, but do you know who at MVM set up this 14 process, the way this works? 15 A No. HR. 16 Q Now, what role, if any, do you play in 17 helping to ensure that MVM's employees are going to 18 be free from disability discrimination? 19 MR. RECTOR: Object to the form of the 20 question. 21 THE WITNESS: That's not my realm. 22 BY MR. GRIFFIN: 23 Q And whose realm is that at MVM? 24 A HR. 25 Q Okay. Now, let me ask you to look at 59 1 Exhibits 22, 23, and 24, and I'll show these to you. 2 There we go. 3 And let me -- let me know when you're 4 through reviewing those, and then I'll have some 5 questions for you. 6 And can you share with us what Exhibit 7 Number 23 is? 8 A It appears -- it appears to be a contract 9 modification. 10 Q Okay. For which of your customers? 11 A It looks like FPS. 12 Q And what is FPS? 13 A Federal Protective Services. 14 Q Okay. And are they one of your 15 customers? 16 A MVM's, yes. 17 Q Yes, okay. 18 Is that one of the three you mentioned? 19 A No. 20 Q Okay. Well, how many customers does MVM 21 have other than the three you mentioned? 22 A Marshals, ICE -- we have ICE. We have 23 four others. 24 Q Okay. And the one you're looking at 25 Exhibit Number 23, can you give us the Bates stamp 60 1 number on the bottom right-hand corner? And that's 2 the number that usually is preceded by the letters 3 MVM. 4 A It's 00765. 5 Q Okay. And in terms of your customers -- 6 among your customers of MVM, which customers make 7 the decisions on whether or not one of MVM's 8 employees are medically fit for duty? 9 A Repeat the question. 10 Q Sure. 11 Among your customers that MVM has, 12 which -- which of them makes decisions about whether 13 MVM's employees are going to be considered medically 14 qualified or unqualified to do their job? 15 A The U.S. Marshals Service CSO contract. 16 Q They're the only one customer? 17 A Yes. 18 Q Okay. And if we look at, for example, on 19 the Federal Protective Service, if I'm -- if I'm 20 understanding this, MVM provides security officers 21 for the Department of Homeland Security, Federal 22 Protective Service, right? 23 A Yes. 24 Q Okay. And if I'm -- if I'm reading this 25 correctly, MVM, with respect to the Federal Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 17 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 16 (Pages 61 to 64) 61 1 Protective Service, makes the decision on whether or 2 not one of the officers is medically fit or unfit, 3 correct? 4 A Makes the decision? 5 Q Yes. 6 A Yes. 7 Q Okay. And in this contract, for example, 8 if you'll look at page -- what's been marked by MVM 9 as MVM 836 in the bottom right-hand corner, and let 10 me know when you're there. 11 A Okay. 12 Q And if you'll look at paragraph 5.2.1.3, 13 and let me know when you're there. 14 A Okay. 15 Q Am I reading this right, that in this 16 contract with the Federal Protective Service, 17 Contractor, not Government, is responsible for 18 complying with provisions of Americans with 19 Disabilities Act of 1990. 20 Do you see that? 21 A I see that. 22 Q Okay. And in this -- in this exhibit, 23 the word "Contractor" means MVM, does it not? 24 A Yes. 25 Q Okay. Moving, then, to Exhibit 62 1 Number 24, I'll ask you what that is. Can you 2 confirm that this is sections of the Social Security 3 Administration contract with MVM, the Statement of 4 Work? 5 A I don't know. 6 Q And I beg your pardon -- 7 A No. This is for -- I'm sorry, for which 8 contract? 9 Q FPS. 10 A I don't know. 11 Q Well, tell us what it is. Why don't I 12 just ask it in an open-ended way. What is this 13 document you're looking at? 14 MR. RECTOR: Object to the form of the 15 question. 16 THE WITNESS: It reads, Small Business, 17 Veteran -- Veteran-Owned Small Business, 18 Service-Disabled Veteran-Owned Small Business, 19 HUBZone Small Business, Small Disadvantaged 20 Business, and Woman-Owned Small Business 21 Subcontracting Plan for FPS -- or Federal 22 Protective - Region 2. 23 Q Well, no, I wasn't really asking you -- 24 A Oh, sorry. 25 Q -- to read it aloud. I was just asking 63 1 you if you know what this document is. 2 A No. 3 MR. RECTOR: And, Counsel, which -- 4 which -- I'm so sorry. I think the one marked 24 5 that you handed me is different than the one marked 6 24 that you handed her. 7 THE WITNESS: Is it this one 8 (indicating)? I don't know. 9 MR. GRIFFIN: Is it the one that says, 10 "Submitted by: MVM, Inc."? 11 MR. RECTOR: That's not what I've got. 12 MR. GRIFFIN: Don't worry. I've got an 13 extra copy of it. 14 MR. RECTOR: Thank you. 15 MR. GRIFFIN: No problem. 16 THE WITNESS: It says, "Submitted by: 17 MVM." 18 BY MR. GRIFFIN: 19 Q Right. But have you ever seen -- do you 20 know what this is? 21 A No. 22 Q You don't? 23 A No. 24 Q You've never seen it before? 25 A No. It's not in my realm. 64 1 Q And I'm just going to ask you to look at 2 the second page. 3 Do you know what a PSO is? 4 A Protective security officer. 5 Q Okay. And do you know whether or not -- 6 if you'll look at the "Medical screening" section in 7 2.1.4. Do you see that, "New Medical Requirements"? 8 A I see it. 9 Q And are you aware of whether or not 10 anything in the first two paragraphs are true or not 11 true? 12 A I don't know. I don't support this 13 specific contract. 14 Q What I'm just trying to get at: You 15 don't know anything about whether or not what's said 16 in these statements are true or not true? 17 A No. I'm not involved in this. 18 Q That's fair enough. 19 And the final exhibit -- the next one 20 you've got there is, what, 25? 21 A 20 -- no, I don't have -- I have 22, 24, 22 23. 23 Q And which ones have we not looked at yet? 24 A 22, maybe. 22. 25 Q Is that the one that starts with Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 18 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 17 (Pages 65 to 68) 65 1 Section B - Statement of Work? 2 A Yes. 3 Q Okay. Great. Then that's the last one 4 in this series I'll ask you about. 5 Can you confirm this is the Statement of 6 Work for the contract that MVM has with the Social 7 Security Administration to provide armed security 8 services for the Social Security Administration? 9 A It appears to be, yes. 10 Q And if you'll look at page 36 of what's 11 been Bates stamped in the right-hand corner as 12 MVM 0692, can we see that MVM -- it says, quote, in 13 subsection 12.1(B), The Contractor is responsible 14 for complying with all provisions of the Americans 15 with Disabilities Act of 1990. 16 Do you see that? 17 A Yes. 18 Q Are you responsible, in terms of your 19 role with the company, of reviewing information 20 about employee -- MVM employees who are security 21 officers for other branches of the Federal 22 Government other than United States Marshals 23 Service? 24 A Repeat that question. 25 Q Sure. 66 1 You have described how you move 2 information that comes to you, and you give it to 3 either the Marshals Service or Mr. McHale. 4 A Uh-huh. 5 Q Do you provide a similar role with 6 respect to medical fitness for duty of your other 7 employees who are serving as officers for other 8 federal agencies? 9 A No. 10 Q Okay. So when -- and I'm assuming for 11 the Federal Protective Service, Social Security 12 Administration, and your other customers, MVM hires 13 vendors to perform physical examinations on MVM's 14 employees, correct? 15 A Hire vendors? I'm sorry. 16 Q I think that's the word you used. 17 A Use vendors? 18 Q Yes. 19 A They use a facility? 20 Q Yes. 21 A A medical facility, yes. 22 Q And it ends up having doctors to perform 23 an examination -- 24 A Yes. 25 Q -- on these MVM employees? 67 1 A Yes. 2 Q And you had described that among all the 3 customers, only the USMS makes decisions about 4 medical fitness for duty, correct? 5 A Yes. 6 Q Okay. With these other customers of 7 yours, MVM makes that decision after conducting a 8 physical examination of its employees, right? 9 A Yes. 10 Q And do you have anything to do with that 11 information being conveyed to anyone? 12 A No. 13 Q Okay. It's okay if you don't, but do you 14 know of any MVM procedures in place to protect MVM 15 employees from losing their jobs because of mistakes 16 during the FOH process for CSOs? 17 A Repeat the question. 18 Q Sure. 19 Do you know of any procedures that MVM 20 has in place to protect workers against mistakes 21 that may be made by FOH when it comes to the medical 22 fitness for duty for MVM's CSOs? 23 A No. That's handled by HR. 24 Q Have you ever heard anybody at MVM make 25 any suggestions that there should be some procedures 68 1 in place to ensure that MVM's CSOs are not 2 erroneously removed from duty? 3 A Repeat that question. 4 Q Sure. 5 Have you ever heard of any suggestions at 6 MVM that it have procedures to protect CSOs from 7 mistakes that might be made because of a CSO's 8 medical condition? 9 A Again, I don't know. That's handled by 10 HR. 11 Q No, I'm not -- let me object to the 12 responsiveness. 13 A Uh-huh. 14 Q I'm not asking you who handled it. 15 Have you ever heard of any such 16 suggestions that MVM have procedures in place to 17 protect MVM's employees against mistakes that may be 18 made during the medical fitness-for-duty process? 19 A Mistakes? I don't know. Rephrase the 20 question. Sorry. 21 Q You know what suggestions are, right? 22 A Yes. 23 Q To try to make things better? 24 A Yes. 25 Q You've seen suggestion boxes places? Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 19 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 18 (Pages 69 to 72) 69 1 A Yes. 2 Q Okay. Have you ever heard anybody at MVM 3 suggest that it might be a good idea to have 4 procedures in place that would help protect MVM's 5 CSOs in the event of mistakes or discrepancies in 6 the fitness-for-duty process for MVM's CSOs? 7 A Me, no. 8 Q Okay. And what does the word 9 "discrepancy" mean to you? 10 A Discrepancy? 11 Q Uh-huh. 12 A Error or... 13 Q Sure. 14 And we've looked at Exhibit 1 where it 15 says that Mr. Keneipp's personal physician says that 16 he's precluded from running. 17 Do you remember us looking at that? It's 18 the second page. 19 A Oh, okay. 20 Q And I don't -- I don't mind telling you 21 that I think that "preclude" means keep you from 22 being able to do something. Like, if -- if I -- if 23 I was a paraplegic and I didn't have legs, then I 24 would be precluded from walking unless I had some 25 sort of prosthetic. 70 1 Are you with me so far? 2 A Uh-huh. 3 Q Okay. Do we agree that it would be a 4 discrepancy if Mr. Keneipp's personal physicians had 5 actually certified that he was able to run? 6 A I don't know. I'm not a doctor. 7 Q I'm not -- let me object to 8 responsiveness. 9 I'm not -- you've told me several times 10 today you're not a doctor, and I promise you I won't 11 accuse you of being a doctor, and I'm not one 12 either. 13 But do we agree that it would be 14 inconsistent for one person to say a person can't 15 run and another person to say they can? 16 A Inconsistent, yes. 17 Q Okay. And that would be a discrepancy in 18 the records if one person says that he can't run and 19 another person says that he can run, right? 20 A Yes. 21 Q And it's important, with respect to MVM's 22 workers, that inconsistencies be resolved so that we 23 get it right, correct? 24 A Yes. 25 Q And insofar -- you may not know this, 71 1 but -- it may be HR's department, and tell me if it 2 is, but are you aware, as we sit here today, of any 3 deficiency on the part of Mr. Keneipp in any way in 4 doing his job during the entire career he had with 5 MVM as a CSO? 6 A No, I don't. That's handled by HR. 7 Q And have you heard any -- forgive my 8 using this Texas or Oklahoma word -- scuttlebutt, 9 anything bad about Mr. Keneipp's job performance 10 while he was a CSO working for MVM? 11 A No. 12 Q Is there anything negative about 13 Mr. Keneipp that you know of? 14 A Clarify the question. 15 Q Sure. 16 Is there anything you've heard in 17 scuttlebutt or anywhere where somebody has said 18 something bad about Mr. Keneipp in any way? 19 A No, not to my knowledge. 20 Q Let me show you what's been marked as 21 Exhibit Number 4. Let me make sure it's not stuck. 22 A Okay. 23 MR. GRIFFIN: I think I have another copy 24 here. 25 BY MR. GRIFFIN: 72 1 Q Let me just sort of summarize. 2 A Uh-huh. 3 Q Are these -- the letters you're looking 4 at, Exhibit Number 4, are they the same type of 5 letter that you received regarding Mr. Keneipp, 6 medical disqualification letters? 7 A Yes. 8 Q And while you don't have to read them 9 word for word, can you confirm that all these 10 letters during 2013 and 2014 are, in fact, letters 11 that are similar to -- in terms of the content to 12 the letter you received from Mr. Cornelious that's 13 reflected in Naman Exhibit 1? 14 A Repeat the question. 15 Q Sure. 16 Are all of these letters substantially 17 similar to the letter you received from 18 Mr. Cornelious about David Keneipp? 19 A Yes. 20 Q And to your knowledge, with respect to 21 any of these, did MVM -- I know you didn't, but are 22 you aware of whether anyone at MVM did address any 23 questions or concerns to Mr. Cornelious or his 24 predecessors or successors with respect to a 25 decision about MVM's CSO? Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 20 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 19 (Pages 73 to 76) 73 1 A Repeat that question. 2 Q Yeah. 3 Do you know whether anybody at MVM ever 4 answered any of these letters from Mr. Cornelious or 5 his successors or predecessors? 6 A Answered the letters? 7 Q Yes. 8 A No. I just receive and submit. I don't 9 know. 10 Q Right. In other words, I know what you 11 do. You get these letters, and you give them to 12 Mr. McHale -- 13 A Uh-huh. 14 Q -- but are you aware of whether 15 Mr. McHale or anybody else at MVM -- 16 A No. 17 Q -- actually addressed any concerns or 18 questions about any of these CSOs? 19 A I do not know. 20 Q Okay. Let me ask you this, Ms. Naman: 21 Did you have any other role in Mr. Keneipp's 22 termination from MVM other than receiving the letter 23 from Mr. Cornelious and e-mailing it to Mr. McHale? 24 A Yes. 25 Q And share with us your other role in 74 1 that. 2 A Well, I notified the district supervisor 3 that we received notification from the Marshals 4 Service that he was disqualified. 5 Q And when did you do that? 6 A As soon as -- as soon as I get a letter, 7 I do notify -- I notify the district supervisor. 8 Q Immediately? 9 A Yes. 10 Q Okay. Any other role that you played 11 insofar as the sequence of events that led to Mr. -- 12 that led to MVM terminating Mr. Keneipp? 13 A No. 14 MR. GRIFFIN: Okay. I will pass the 15 witness. Thank you very much. 16 EXAMINATION BY COUNSEL FORDEFENDANT 17 BY MR. RECTOR: 18 Q Ms. Naman, just a couple of brief 19 follow-up -- 20 A Sure. 21 Q -- questions, and we will get you out of 22 here. 23 A Sure. 24 Q First, you were shown a Collective 25 Bargaining Agreement earlier by Mr. Griffin. 75 1 Is it part of your job responsibilities 2 in any way dealing with the Collective Bargaining 3 Agreement? 4 A No. 5 Q You don't negotiate the CBA? 6 A No. 7 Q You don't ensure compliance with the CBA? 8 A No. 9 Q Same question with respect to contracts 10 for FPS. You're not responsible in any way for FPS 11 contracts? 12 A No. 13 Q I'm going to show you what I have 14 previously marked. And for identification purposes, 15 this is a continuation of exhibits from the 16 deposition of Mr. Cornelious. This is marked 17 Defendant's Exhibit 3. 18 Will you take a moment and look at that 19 letter? 20 MR. RECTOR: And, Counsel, if you want to 21 take a look at that letter. 22 MR. GRIFFIN: No, that's fine. 23 BY MR. RECTOR: 24 Q This appears to be an e-mail from Gregory 25 Wholean to Trey (sic) Bearden of the Marshals 76 1 Service? 2 A Terry Bearden. 3 Q Terry Bearden -- I was reading upside 4 down -- of the Marshals Service. 5 Did I read that correctly? 6 A Yes. 7 Q Based on this e-mail, was it your 8 understanding that MVM had received Mr. Keneipp's 9 letter of August 27th -- I believe it was the 10 27th -- and that MVM was working with the Marshals 11 Service on Mr. Keneipp's concerns? 12 A Yes. 13 MR. GRIFFIN: Object to the form. 14 BY MR. RECTOR: 15 Q Okay. Are you CC'd on this e-mail? 16 A Yes. 17 Q I'm going to hand you what was -- or I'll 18 ask you to refer to what Plaintiff's counsel handed 19 you as Exhibit 4. 20 A Yes. 21 Q Do you have that in front of you? 22 A Uh-huh. 23 Q Are you the recipient of all of these 24 letters in Exhibit 4? 25 A As far as going back to September 23rd, Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 21 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 20 (Pages 77 to 80) 77 1 2014. 2 Q So anything before that date, you would 3 not be the recipient of these letters? 4 A I would have been notified, yes, but -- 5 Q Even if you weren't the recipient? 6 A Yes, yes. 7 Q Let me ask you this: With respect to 8 MVM 521, 523, 529, 531, 549, and 550, the last six 9 pages of Exhibit 4, are these letters addressed to 10 you? 11 A No. 12 Q Who are they addressed to? 13 A One's for Executive Vice President Joseph 14 Morway. One is CSO Program Manager Eric Jurgensen. 15 There are three to Eric Jurgensen -- four to Eric 16 Jurgensen. 17 Q You were explaining to Mr. Griffin 18 earlier the process that MVM has for ensuring that 19 physicians are available to conduct fitness-for-duty 20 examinations. There was some question about whether 21 a vendor was a physician, and you referenced 22 ComplyFirst. I wanted to give you an opportunity to 23 explain how that process works, who ComplyFirst is 24 and what they do. 25 A Okay. ComplyFirst is our -- is a service 78 1 provider. They act as -- they identify licensed 2 physicians and -- and a facility scheduled the exams 3 with the medical facilities where the licensed 4 physicians are, and then they also maintain our -- 5 the licensed physician's credentials and submit them 6 when new doctors come on to MVM. 7 Q But ComplyFirst themselves, they don't 8 have physicians on staff? 9 A Correct. 10 Q So if I understand the process correctly, 11 you contract -- or MVM contracts with ComplyFirst, 12 ComplyFirst is responsible for going out and 13 securing physicians? 14 A Yes. 15 Q MVM doesn't pay directly the physicians? 16 A Correct. 17 Q There was a question earlier from 18 Mr. Griffin about training that I would like to 19 follow up on. 20 A Uh-huh. 21 Q If you receive a concern or a complaint 22 or a question from a CSO about medical exams, 23 medical testing, or the results thereof, do you know 24 what to do with those questions and concerns? 25 A Go to HR. 79 1 Q And who in HR told you to go to them? 2 A Chris McHale. 3 Q Would that represent the sum total of 4 training you've received on how to handle those 5 inquiries? 6 A Yes. 7 Q Just one moment. 8 If you would refer briefly back to 9 Exhibit 1, Naman 1, the second part of that is the 10 form letter sent from the Marshals Service declaring 11 Mr. Keneipp medically disqualified? 12 MR. GRIFFIN: Object to the form. 13 BY MR. RECTOR: 14 Q Do you see where I'm talking about? 15 A Oh, sorry. Repeat the question. 16 Q The -- if you go to the second -- if you 17 flip to the second -- 18 A Uh-huh. 19 Q -- page of this document, is that the 20 medical disqualification form you received for the 21 Marshals Service? 22 A Yes. 23 Q You testified earlier that MVM is the 24 only entity who would be aware of that form, so I 25 would ask you: Are you aware of all people who 80 1 would have put eyes on that form? 2 A No. 3 Q Okay. In other words, there would have 4 been other people -- there could have been other 5 people that have seen that form? 6 MR. GRIFFIN: Object to the form. 7 THE WITNESS: Yes. 8 MR. RECTOR: Ms. Naman, I have no further 9 questions. 10 THE WITNESS: Okay. 11 MR. GRIFFIN: Thank you very much. 12 THE WITNESS: Thank you. 13 THE VIDEOGRAPHER: Going off the record 14 at 11:23 a.m. 15 (Off the video record.) 16 THE REPORTER: Do you need the same 17 transcript orders as yesterday? 18 MR. GRIFFIN: Sure, same order as 19 yesterday. 20 MR. RECTOR: Yes, ma'am. 21 (Off the record at 11:23 a.m.) 22 23 24 25 Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 22 of 23 Videotaped Deposition of Veronica Lynn Naman Conducted on August 24, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 21 (Page 81) 81 1 CERTIFICATE OF SHORTHAND REPORTER - NOTARY PUBLIC 2 I, Marney Alena Mederos, the officer 3 before whom the foregoing deposition was taken, do 4 hereby certify that the foregoing transcript is a 5 true and correct record of the testimony given; that 6 said testimony was taken by me stenographically and 7 thereafter reduced to typewriting under my 8 direction; that reading and signing was not 9 requested; and that I am neither counsel for, 10 related to, nor employed by any of the parties to 11 this case and have no interest, financial or 12 otherwise, in its outcome. 13 IN WITNESS WHEREOF, I have hereunto set my 14 hand and affixed my notarial seal this 2nd day of 15 September 2016. 16 My commission expires March 31, 2018 17 Virginia Notary Number 7584458 18 19 20 21 _____________________________ 22 NOTARY PUBLIC IN AND FOR 23 THE COMMONWEALTH OF VIRGINIA 24 25 Case 4:15-cv-00565-JED-TLW Document 36-7 Filed in USDC ND/OK on 10/18/16 Page 23 of 23 Exhibit 8 Case 4:15-cv-00565-JED-TLW Document 36-8 Filed in USDC ND/OK on 10/18/16 Page 1 of 3 CONFIDENTIAL MVM 000337 Case 4:15-cv-00565-JED-TLW Document 36-8 Filed in USDC ND/OK on 10/18/16 Page 2 of 3 CONFIDENTIAL MVM 000338 Case 4:15-cv-00565-JED-TLW Document 36-8 Filed in USDC ND/OK on 10/18/16 Page 3 of 3 Exhibit 9 Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 1 of 26 Transcript of Philip Cornelious Date: August 23, 2016 Case: Keneipp -v- MVM, Inc. Planet Depos, LLC Phone: 888-433-3767 Fax: 888-503-3767 Email: transcripts@planetdepos.com Internet: www.planetdepos.com Worldwide Court Reporting | Interpretation | Trial Services Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 2 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 1 (Pages 1 to 4) 1 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF OKLAHOMA 3 ------------------------------X 4 DAVID L. KENEIPP, : 5 Plaintiff, : 6 v. : Civil Action No. 7 MVM, INC., : 4:15-cv-00565 8 Defendant. : 9 ------------------------------X 10 11 Videotaped Deposition of 12 PHILIP CORNELIOUS 13 Alexandria, Virginia 14 Tuesday, August 23, 2016 15 10:00 a.m. 16 17 18 19 20 21 22 23 Job No.: 119164 24 Pages: 1 - 93 25 Reported by: Marney Alena Mederos, RPR, CRR 2 1 Videotaped Deposition of PHILIP 2 CORNELIOUS, held at the offices of: 3 4 CARR WORKPLACES 5 1765 Duke Street 6 Alexandria, Virginia 7 (571) 447-4300 8 9 10 11 Pursuant to Notice, before Marney Alena 12 Mederos, Registered Professional Reporter, 13 Certified Realtime Reporter, and Notary Public in 14 and for the Commonwealth of Virginia. 15 16 17 18 19 20 21 22 23 24 25 3 1 A P P E A R A N C E S 2 ON BEHALF OF THE PLAINTIFF: 3 JOHN W. GRIFFIN, JR., ESQUIRE 4 MAREK, GRIFFIN & KNAUPP 5 203 North Liberty Street 6 Victoria, Texas 77901 7 (361) 573-5500 8 9 ON BEHALF OF THE DEFENDANT: 10 JONATHAN G. RECTOR, ESQUIRE 11 LITTLER MENDELSON, P.C. 12 2001 Ross Avenue 13 Suite 1500 14 Dallas, Texas 75201 15 (214) 880-8182 16 17 18 19 20 21 22 23 24 25 4 1 A P P E A R A N C E S C O N T I N U E D 2 ON BEHALF OF THE DEPARTMENT OF JUSTICE, 3 U.S. MARSHALS SERVICE: 4 C. JOSEPH CARROLL, ESQUIRE 5 DEPARTMENT OF JUSTICE 6 U.S. MARSHALS SERVICE 7 241 18th Street South 8 Arlington, Virginia 22202 9 (202) 307-9054 10 11 12 ALSO PRESENT: 13 CHRISTOPHER McHALE, MVM, INC. 14 LAUREN JACKSON, VIDEOGRAPHER 15 16 17 18 19 20 21 22 23 24 25 Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 3 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 2 (Pages 5 to 8) 5 1 C O N T E N T S 2 EXAMINATION OF PHILIP CORNELIOUS: PAGE 3 By Mr. Griffin 7 4 By Mr. Rector 43 5 By Mr. Griffin 70 6 By Mr. Rector 87 7 By Mr. Griffin 88 8 By Mr. Rector 88 9 10 E X H I B I T S 11 (Attached to transcript) 12 CORNELIOUS DEPOSITION EXHIBIT PAGE 13 Exhibit 1 Letter to Ms. Naman 6 14 Exhibit 2 Letter to Mr. Keneipp 6 15 16 DEFENDANT'S DEPOSITION EXHIBIT PAGE 17 Exhibit 1 Solicitation, Offer and Award 47 18 Exhibit 2 Letter To Whom It May Concern 57 19 Exhibit 3 E-mails 89 20 21 22 23 24 25 6 1 P R O C E E D I N G S 2 (Cornelious Exhibits 1 and 2 were marked 3 for identification and attached to the transcript.) 4 THE VIDEOGRAPHER: We are now on the 5 record at 10:00 a.m. on August 23rd, 2016. This 6 video -- is the video of Philip Cornelious in the 7 matter of Keneipp v. MVM, Inc., in the United States 8 District Court, Northern District of Oklahoma, Civil 9 Action Number 4:15-cv-00565, taking place at 10 1765 Duke Street, Alexandria, Virginia 22314. 11 The videographer is Lauren Jackson, and 12 the court reporter is Marney Mederos, both 13 presenting on behalf of Planet Depos. 14 Now will counsel please introduce 15 themselves. 16 MR. GRIFFIN: Good morning. My name is 17 John Griffin, and I have the privilege of 18 representing David Keneipp in this matter. 19 MR. RECTOR: And my name is Jonathan 20 Rector. I'm representing Defendant MVM, Inc. today. 21 MR. CARROLL: I'm Joe Carroll. I 22 represent the United States Marshals Service, 23 Department of Justice. 24 THE VIDEOGRAPHER: Please swear in the 25 witness. 7 1 THE REPORTER: Raise your right hand, 2 please. 3 Whereupon, 4 PHILIP CORNELIOUS 5 being first duly sworn or affirmed to testify to the 6 truth, the whole truth, and nothing but the truth, 7 was examined and testified as follows: 8 EXAMINATION BY COUNSEL FOR PLAINTIFF 9 BY MR. GRIFFIN: 10 Q Would you please introduce yourself, sir? 11 A Good morning, sir. My name is Philip 12 Cornelious. I am an Assistant Chief Inspector with 13 the United States Marshals Service, specifically the 14 Judicial Security Division, Office of Court 15 Security. 16 Q Good morning to you, Mr. Cornelious. My 17 name is John Griffin, and I have the privilege of 18 representing a former CSO by the name of David 19 Keneipp, and I'm going to be asking you hopefully a 20 brief series of questions about the United States 21 Marshals Service role with its contractors, and I'll 22 ask you a few questions just so that we can 23 communicate better. 24 If I ask a question that seems like it 25 doesn't make any sense to you, will you let me know 8 1 that so that I can do my best to rephrase the 2 question? 3 A Yes, sir. 4 Q Another thing, with these two 5 professionals on my right and left, if we talk at 6 the same time, they will both first look at us with 7 glares and then use their elbows if we talk at the 8 same time. 9 So I'm going to endeavor not to start my 10 next question until you're finished with your 11 answer, and I'll ask, if you don't mind, even if you 12 know where I'm going with the question, to wait 13 until I'm finished with it before you start 14 answering. 15 Is that okay with you? 16 A Yes, sir. 17 Q Super-duper. 18 Tell us a little bit about -- about your 19 background. Where were you born and raised? 20 A I was born in Findlay, Ohio in 1971. We 21 moved to southern Pennsylvania, a little town called 22 Willow Hill, when I was five, and I was raised there 23 until 17, when I joined the United States Marine 24 Corps in 1989. 25 Q Tell us a little bit about your Marine Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 4 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 3 (Pages 9 to 12) 9 1 Corps experience. 2 A In the United States Marine Corps, I was 3 an infantryman, trained as a mortorman. I served on 4 at least two -- I'm sorry, three campaigns: Desert 5 Shield, Desert Storm, and Operation Sharp Edge, 6 which was Monrovia, Liberia. I was honorably 7 discharged as a meritoriously-promoted Corporal in 8 1993 and returned home. 9 Q When you use the term 10 "meritoriously-promoted Corporal," tell us what that 11 means. 12 A The promotion system for the Marine Corps 13 was sort of a two-prong. There was one where if you 14 reached the right number of points, you received the 15 score, you were promoted to Corporal or you were 16 promoted to the next level. 17 I got it early because I showed 18 outstanding promise or I was an exceptional Marine 19 at that time, so I was promoted prior to actually 20 receiving the score, thus, meritoriously. 21 Q Well, thank you for that. 22 And how long did you serve in total with 23 the Marine Corps? 24 A Four years. 25 Q And what came next in your life after 10 1 your honorable discharge from the USMC? 2 A Worked a few random jobs: I sold 3 insurance, I sold cars, I loaded trucks. I realized 4 that college was the way to go, so I attended 5 undergrad at Shippensburg University of Pennsylvania 6 and then continued to a grad degree, Master's of 7 Public Administration, at Shippensburg as well. 8 Q And how young a -- young man were you 9 when you completed your service with the USMC? 10 A I was 21. I turned 22 that year. 11 Q So by the time you were 21, you had 12 served in how many campaigns with the Marine Corps? 13 A Three. 14 Q And so you went to Shippensburg State in 15 Pennsylvania? 16 A Yes, sir. It was Shippensburg University 17 at that time. It wasn't Shippensburg State College 18 any longer. 19 Q Thank you. My memory sometimes gets the 20 best of me. Shippensburg University, I have to 21 remember that, because it's Texas State University, 22 not Southwest Texas State Teachers College anymore. 23 I've got to remember that. Okay. Well, thank you 24 for that. 25 And your degree was -- you had a Master's 11 1 in Public Administration? 2 A Yes, sir. 3 Q And what was your -- tell us about your 4 journey after you obtained that Master's degree. 5 A During undergrad, I did an internship 6 with the United States District Court for the Middle 7 District of Pennsylvania in Harrisburg, 8 Pennsylvania. At the end of that internship, a 9 position became available. 10 So prior to actually graduating 11 undergrad -- I had nine credits remaining -- I took 12 a job in the District Court Clerk's Office as a 13 docket clerk, and I served there for just shy of 14 three years, during which time I completed my 15 undergrad and well on my way to my Master's. 16 I then took a job as a State Parole 17 Officer with the State of Pennsylvania, where I 18 finished my Master's degree, for approximately a 19 year and a half, and that's when the Marshals 20 called. 21 Q All right. And tell us about that 22 occasion. 23 A I had -- well, I accepted the job with 24 the Marshals Service. In 2003, I showed up at 25 Brunswick, Georgia at FLETC for basic training -- 12 1 I'm sorry, April 15th of 2003, and I completed that 2 course in June and was assigned to the District of 3 Columbia District Court. 4 Q And what was your first job with the 5 USMS? 6 A A basic deputy. Hauling prisoners, 7 courts, warrants, service of process. The standard 8 duties of a Deputy U.S. Marshal. 9 Q Now, as a layperson, would I be right in 10 saying that you were a U.S. Marshal? You were hired 11 as a U.S. Marshal? 12 A As a Deputy U.S. Marshal, yes, sir, and I 13 still am. 14 Q Okay. Good. Thank you for that. 15 And forgive me for asking layperson's 16 questions, but are Deputy U.S. Marshals law 17 enforcement positions? 18 A Yes, sir. 19 Q Okay. And weapons-bearing as well? 20 A Yes, sir. 21 Q Okay. Thank you for that. 22 And share with us your career journey 23 with the United States Marshals Service since you 24 began as a Deputy U.S. Marshal. 25 A I served as a deputy in the D.C. District Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 5 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 4 (Pages 13 to 16) 13 1 Court for approximately three-and-a-half years. 2 After that, I transferred voluntarily to the Middle 3 District of Pennsylvania to the Harrisburg Sub 4 Office where I served for approximately 5 four-and-a-half years through the GS-12 journeyman 6 level of a Deputy U.S. Marshal, at which time I 7 promoted to a GS-13 Senior Inspector with the Office 8 of Court Security, Judicial Security Division at 9 headquarters, and that was in 2011. 10 Q And when you use the term "Judicial 11 Security Division," tell us what that means. 12 A Judicial Security Division is an 13 operational division within the United States 14 Marshals Service, of which there are several. The 15 Judicial Security Division is primarily responsible 16 for judicial security both through protection of 17 judges' physical protection as well as the 18 protection of the judicial process and court 19 security. 20 Q All right. And I neglected to ask you 21 this earlier, but for those of us who are not 22 familiar in depth with the USMS, can you share 23 generally what the USMS is? 24 A The United States Marshals Service is the 25 oldest federal law enforcement agency tasked 14 1 primarily with service of all Court Orders and 2 enforcement of all Court Orders, as well as 3 protection of the Judiciary. 4 Q And you don't -- you don't have to give 5 me an exact number, but approximately how many U.S. 6 Marshals and Deputy U.S. Marshals do we have in the 7 United States? 8 A Well, there are 94 U.S. Marshals. They 9 are either Presidentially appointed or appointed by 10 the Attorney General depending on location. And 11 there are approximately 3,500 Deputy U.S. 12 Marshals/Senior Inspector. 13 Q And are -- are there U.S. Marshals or 14 Deputy U.S. Marshals in all 50 of our United States? 15 A Yes, sir. 16 Q All right. And so tell us a little bit 17 about your progression once you came over to the 18 Judicial Security Division in 2011. 19 A I was a GS-13 Senior Inspector assigned 20 to the Judicial Security Inspector, Field Support 21 Branch where my duties were basically approval of 22 funding for special security projects with regard to 23 the Court Security Officer program. During that 24 time, approximately two years into that, through 25 promotions of other individuals, I was temporarily 15 1 promoted to an Assistant Chief position. 2 And then during that time, there were 3 other promotions and other career transfers that 4 allowed me to stay in that position in different 5 capacities within the Office of Court Security until 6 I was fully promoted through the merit promotion 7 system of the United States Marshals Service to an 8 Assistant Chief Inspector. 9 Q Okay. And what is the -- in lay-people's 10 terms, what -- what are the job duties of the -- did 11 I say Assistant Chief? Did I say that right, 12 Assistant Chief Inspector? 13 A Yes, sir, I am currently an Assistant 14 Chief Inspector. 15 Q Okay. And describe, just sort of in 16 lay-people's terms, what that job consists of. 17 A That job consists of supervision of four 18 or five GS-13-and-below operational, i.e., the 19 gun-handling, gun-carrying, sworn law enforcement 20 officers, as well as administrative personnel to 21 manage a program, a part of, at least in my specific 22 capacity, the Court Security Officer program. 23 Q Okay. And are you involved with that 24 still today? 25 A I am. 16 1 Q Okay. Great. 2 From your -- from your -- from your 3 sharing a few moments ago, part of the Judicial 4 Security Division deals with protecting judges and 5 the public at federal courthouses? 6 A Yes, sir. 7 Q Okay. And you -- you mentioned the term 8 Court Security Officers. 9 What are those? 10 A Court Security Officers are contract 11 guards that are -- the United States Marshals 12 Service contracts with private companies who hire 13 Court Security Officers to serve on the Court 14 Security Officer contract throughout the country in 15 the -- one of the twelve judicial circuits. 16 Q Do they work at the same federal 17 courthouses as Deputy U.S. Marshals? 18 A Yes. 19 Q Okay. And are Court Security Officers 20 also law enforcement positions? 21 A No. 22 Q And how -- how do we -- how do lay people 23 know the difference between a law enforcement person 24 and a non-law enforcement position when it comes 25 to -- when we call somebody law enforcement and Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 6 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 5 (Pages 17 to 20) 17 1 those who are not? 2 A I don't know that I can speak to how a 3 layperson might distinguish. 4 Q Well, how would you distinguish, though? 5 In other words, I shared -- you shared with me you 6 thought that Deputy U.S. Marshals are law 7 enforcement but CSOs are not. 8 I'm trying to -- for you to share with us 9 the difference of what makes one a law enforcement 10 officer and one not. 11 A Okay. From my perspective from -- as a 12 law enforcement officer, as a Deputy U.S. Marshal 13 with knowledge of this program, the difference is a 14 Deputy U.S. Marshal has the authority to conduct 15 investigations, make arrests based on our own 16 general arrest authority and -- and legal authority. 17 A Court Security Officer is by contract. 18 Their duties are specific to the Statement of Work 19 of the contract. And while they are sworn as 20 Special Deputies, that deputation is very limited in 21 scope to the specific scope of duties in the 22 Statement of Work. 23 Q Thank you for that. 24 And are CSOs weapons-bearing? 25 A Yes, sir. 18 1 Q Okay. And -- well, let me ask it this 2 way: Do both -- Deputy U.S. Marshals and Court 3 Security Officers, do both of them have some role in 4 protecting the security of the Federal Judiciary and 5 members of the public who are at federal 6 courthouses? 7 A Yes. 8 Q Okay. And in terms -- 9 (Telephone interruption.) 10 MR. GRIFFIN: I am going to reject that 11 and apologize to you guys. 12 Let's go off the record for a minute so I 13 can make sure that this goes -- I can get this thing 14 quieted. 15 THE VIDEOGRAPHER: We are now going off 16 the record. The time is 10:15. 17 (A recess was taken.) 18 THE VIDEOGRAPHER: We are back on the 19 record. The time now is 10:21. 20 BY MR. GRIFFIN: 21 Q Mr. Cornelious, would you mind sharing 22 with us sort of the organization of the JSD, its 23 management? 24 A Certainly. Judicial Security Division 25 has one Assistant Director, two Deputy Assistant 19 1 Directors, and several Branch Chiefs. So an 2 Assistant Director is a -- is an appointed position, 3 SES position. Deputy Assistant Directors are 4 typically GS-15 employees, as are Chief either 5 Inspectors or Chiefs, which are administrative 6 positions. There will be several of those, which 7 are GS-15s. 8 The Judicial Security Division is split 9 into two separate subdivisions or sections. One is 10 Operations, and one is Services. Services is the 11 one that controls the CSO program. Operations 12 controls direct protection, protective intelligence, 13 and those more operational aspects. 14 Q And sort of working from the bottom, did 15 you say there was an Associate Director who is the 16 head of the JSD? 17 A An Assistant Director. 18 Q Assistant Director. Thank you for 19 correcting me. 20 A Yes, sir. 21 Q And who is the Assistant Director? 22 A Currently, it is John Bolen. 23 Q B-O? 24 A L-E-N. 25 Q Okay. And the two DADs? 20 1 A Currently, the Deputy Assistant Director 2 for Operations is Thomas Wight, W-I-G-H-T, and for 3 Services is Gary Insley, I-N-S-L-E-Y. 4 Q And as we work down toward the CSO 5 program, you mentioned there were some Branch 6 Chiefs. 7 Is there a Branch Chief that's related to 8 the CSO program? 9 A Yes, sir. There are several. 10 Q Oh, there are several. 11 Okay. Which of the -- the branch -- the 12 subdivisions or sections deal with the CSO program? 13 A Again, sir, there are -- there are 14 several. It's a very large program. However, my 15 specific chain of command leading from Assistant 16 Director, to Deputy Assistant Director, to the Chief 17 of the Program Office, which is the Office of Court 18 Security, that person is Chris Edge, E-D-G-E -- 19 Q Uh-huh. 20 A -- who is my direct supervisor, and I am 21 the Assistant Chief for the Training & Compliance 22 branch at this time. 23 Q Okay. The -- this may be a dumb 24 question, but is it a different section entirely 25 that negotiates contracts between the Marshals Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 7 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 6 (Pages 21 to 24) 21 1 Service and the contractors who desire to provide 2 the Court Security Officers? 3 A Yes, sir. 4 Q You're not involved in negotiating those 5 contracts? 6 A No, sir. 7 Q Or interpreting them? 8 A No, sir. 9 Q Okay. Fair enough. 10 Insofar as the medical fitness for duty 11 for CSOs -- let me first start asking you this: The 12 fitness for duty for Court Security Officers is 13 different from that of Deputy U.S. Marshals, as I 14 understand it? 15 A If the question is what I think, that's 16 one thing. I -- I am not familiar enough or do not 17 recall enough of the deputy process to compare the 18 two. 19 Q And I thank you for sharing that with me. 20 My question may not have been the world's best 21 question. 22 Your employer is the United States 23 Marshals Service, right? 24 A Yes, sir. 25 Q And has been since 2000 -- 2003? 22 1 A Yes, sir. 2 Q Okay. For every -- for all those periods 3 of time, your employer was -- was and is USMS? 4 A Correct. 5 Q Court Security Officers, on the other 6 hand, have a different employer, do they not? 7 A Yes. 8 Q Each Court Security Officer has an 9 employer, such as MVM? 10 A Correct. 11 Q Or perhaps Akal or another contractor? 12 A Yes, sir. 13 Q Okay. And insofar as -- well, let me ask 14 you this: As a Deputy U.S. Marshal, do you have 15 fitness-for-duty requirements? 16 A Yes. 17 Q Okay. And who conducts those? 18 A Federal Occupational Health. 19 Q Okay. And that's done at the behest of 20 the USMS, your employer? 21 A Yes, sir. 22 Q Fair enough. 23 And let me just ask you this: In terms 24 of your role in the Court Security Officer fitness 25 for duty, can you describe just in your own words 23 1 the fitness-for-duty process for CSOs? 2 A There is an initial physical examination, 3 and every two years they are required to undergo a 4 subsequent physical exam that is in the normal 5 course of their employment. 6 Q And insofar as the CSO medical program, 7 does -- well, let me just sort of ask it in this 8 way: Each CSO's employer is a contractor with the 9 USMS; is that right? 10 A Yes. 11 Q Okay. And confining our attention just 12 for the rest of today for MVM, since that's the 13 contractor we're involved with here, the -- all of 14 the CSOs that are serving in United States 15 courthouses within that geographical area served by 16 MVM, the employer of each of those CSOs is MVM; am I 17 right? 18 A Yes. 19 Q Okay. And as I understand the process 20 with the United States Marshals Service, MVM hires 21 physicians to conduct an examination of each CSO in 22 connection with their fitness for duty? 23 A Correct. 24 Q Okay. And as I understand it, after MVM 25 has gathered that information, it transmits it to 24 1 the United States Marshals Service, the physical 2 examination forms? 3 A I'm not confident that it's transmitted 4 directly to the Marshals Service. In some capacity, 5 it goes to the Federal Occupational Health. As far 6 as the current process, I'm not in that process now, 7 so I can't say exactly what the process is. 8 Q Fair enough. 9 But in any event, as I understand it -- 10 and you correct me if I'm wrong -- the employer 11 here, MVM, delegates to the USMS or its designee the 12 responsibility of making a recommendation of whether 13 or not a given CSO is fit or unfit for duty? 14 MR. RECTOR: Object to the form of the 15 question. 16 BY MR. GRIFFIN: 17 Q And if it's confusing, let me know. 18 A If I can answer it in this way: The 19 vendor contracts with physicians to do a physical. 20 The Marshals Service contracts with Federal 21 Occupational Health to review and examine that 22 physical. I am not -- I do not recall the exact 23 process who touches it in between anymore. 24 Q I think you've fairly answered the 25 question in probably a better way than I asked it. Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 8 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 7 (Pages 25 to 28) 25 1 When you use the word "vendor" -- can we 2 agree that when we talk about the employer, or 3 vendor, or contractor that we're referring in this 4 case to MVM? 5 A Yes, sir. 6 Q Okay. And when you use the word 7 "vendor," that's because MVM is the party who has 8 contracted with the USMS to provide Court Security 9 Officers for the program? 10 A Yes, sir. 11 Q Okay. And as I understand your last 12 answer, although you're not sure of all the steps, 13 at the end of the day somebody at FOH or their 14 designees make a recommendation to the USMS about 15 whether or not a given CSO is medically fit or 16 unfit? 17 A Correct. 18 Q Okay. Fair enough. 19 I would like to show you, if I might, 20 Mr. Cornelious, Cornelious Exhibit Number 1 and ask 21 you, if you don't mind, just take a look at that. 22 And after you've had a chance to review it, just let 23 me know. 24 A I've reviewed it. 25 Q Okay. And the letter -- while it -- 26 1 while it says to contact you in the event of 2 concerns or questions, the letter is signed by 3 Michael Stout; am I right? 4 A No, sir. 5 Q Okay. Well, I don't have my glasses on. 6 Who is -- what is that name? It looks like Michael 7 Stout, but I don't have my glasses on. 8 A That name is P. Cornelious. 9 Q Oh, that's your signature on top of 10 Michael Stout's name? 11 A Yes, sir. 12 Q Gotcha. Thank you for that. 13 I don't mean to compliment you, but your 14 signature's almost as bad as mine. Not quite. 15 Okay. So you signed this letter? 16 A Yes, sir. 17 Q Okay. And I -- I am assuming this is the 18 sort of letter that you send to your -- to the 19 employers or vendors when one of the CSOs is -- it 20 has been decided by FOH or their designees that 21 this -- that a CSO doesn't meet the medical 22 requirements? 23 A Yes, this is the letter we would send 24 directing them that the FOH has recommended they do 25 not serve. 27 1 Q And although this is your name, who is 2 Michael Stout? 3 A Michael Stout at this time was the Chief 4 of the program. He is -- Chris Edge currently is 5 the Chief. He was his equivalent at that time. 6 Q Okay. All right. And let me just ask 7 you this in terms of the letter: The letter is 8 addressed to who? 9 A Veronica Naman. 10 Q And is she the -- the QA Man -- Quality 11 Assurance Manager for the employer, MVM? 12 A I know she works for MVM. Her -- her 13 exact title I'm not sure I recall at this point. 14 Q Well, the -- but you'd have no reason to 15 think that the title that's given in your letter to 16 her would not be correct? 17 A I have no reason to believe it's not 18 correct. 19 Q Okay. Fair enough. 20 In any event, the second paragraph of the 21 letter says if you -- and referring to Ms. Naman, at 22 the employer, MVM -- has questions or concern 23 regarding this decision. 24 Do you see that? 25 A Yes, sir. 28 1 Q And this decision being referred to is 2 the decision that Mr. Keneipp does not meet the CSO 3 medical standards required by the contract. 4 That's the decision being referred to; am 5 I right? 6 A Yes, sir. 7 Q Okay. And share with us why there is a 8 sentence in the letter that offers to the employer 9 the opportunity of addressing concerns or questions 10 about such a decision. 11 A If I understand the question correctly, 12 why is there the opportunity for a vendor to ask a 13 question about this specific decision, it is simply 14 literally for that. If they have some question 15 regarding process or documentation or anything of 16 that nature, they certainly may call me or whoever 17 happens to be the signatory. 18 Q And, likewise, if they have concerns 19 about the decision, what is the reason -- what is 20 the reason, Mr. Cornelious, why contractors or 21 employers or vendors are given an opportunity to 22 voice their concern about such a decision? 23 A The vendor is free to contact us with any 24 concern regarding the program. Specific to this, 25 simply for this purpose, if the vendor has a concern Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 9 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 8 (Pages 29 to 32) 29 1 about this, Mr. Keneipp, they can contact me and 2 express their concern. 3 Q All right. And in terms of the 4 relationships in terms of communicating information, 5 is -- does the USMS have any direct 6 employer/employee relationship with CSOs? 7 A No. 8 Q Okay. The CSO -- Mr. Keneipp's employer 9 was MVM, not the Marshals Service; is that right? 10 A That is correct. 11 Q Okay. And insofar as the medical 12 information concerning a CSO is concerned, the 13 practice with respect to the vendors and the U.S. 14 Marshals Service, the vendors are the ones that 15 communicate medical information to the USMS for 16 transmission to FOH, right? 17 A Again, the process of whether they 18 communicate it directly to us or directly with FOH, 19 I cannot recall the exact process, but certainly it 20 is the vendor who would be communicating that 21 through -- whether it's through the Marshals Service 22 to FOH, but the vendor communicates it. 23 Q Right. Not the CSO himself? 24 A Correct. We would not communicate 25 directly with the CSO. 30 1 Q And that's why this letter goes to the 2 employer, MVM, instead of the CSO individually? 3 A Correct. 4 Q And as I understand it, the USMS leaves 5 it to the employer to communicate employment 6 decisions to its own employees, such as CSOs? 7 MR. RECTOR: Object to the form of the 8 question. 9 BY MR. GRIFFIN: 10 Q Do you follow my question? 11 The USMS does not write letters to CSOs 12 concerning the terms of their employment? 13 A That's correct. 14 Q In other words, if at the end of the day 15 a CSO is determined not to be able to work as a CSO 16 any longer, the USMS does not write the CSO and tell 17 them that. Their employer does, correct? 18 A Correct. 19 Q Okay. And is Exhibit 2 -- I'll ask you 20 to look at Exhibit Number 2 and -- first ask you to 21 just take a look at it, and when you're done, let me 22 know. 23 A I've reviewed it. 24 Q Okay. And the -- can you gather from 25 that letter that -- that letter is from MVM, 31 1 Mr. Keneipp's employer, informing him of his removal 2 as a Court Security Officer; am I right? 3 A Certainly by the letterhead and the 4 address, yes, I can gather that this is from MVM to 5 Mr. Keneipp. 6 Q And in terms of the information that's 7 submitted to FOH in terms of the way it works with 8 MVM and the USMS, it is the -- MVM, the contractor, 9 responsible for gathering the fitness-for-duty 10 information to submit to USMS/FOH, correct? 11 MR. RECTOR: Object to the form of the 12 question. 13 MR. CARROLL: You can answer if you 14 understand it. 15 THE WITNESS: I understand -- if I 16 understand your question correctly, it is the 17 responsibility of MVM, the vendor, to collect the 18 information that goes to FOH? 19 BY MR. GRIFFIN: 20 Q Yes. 21 A Correct. That is correct. 22 Q Right. 23 And if a CSO has a concern or question 24 about medical fitness or decision making about 25 medical fitness, under the USMS's relationship with 32 1 its vendor, that CSO should go to his employer to 2 talk about those issues instead of coming to USMS 3 directly? 4 A Correct. 5 Q Okay. And insofar as -- well, let me 6 just ask you this: In terms of court security, how 7 important is it that medical fitness determinations 8 about CSOs be accurate? 9 A Very important. 10 Q All right. Is -- is one of the reasons 11 that the USMS asks for input, concerns, or questions 12 from employers such as MVM, is that with the goal of 13 making sure the decisions are accurate, to the 14 extent that they can be? 15 A We would certainly want the most accurate 16 information possible. 17 Q Sure. 18 And recognizing that no one physician, no 19 one agency is perfect, is this an effort, as best 20 the USMS can, to obtain information with the goal of 21 making sure that decision making, when it comes to 22 the retention of CSOs, is correct and sound? 23 A So when you're saying "this," you're 24 specifically speaking about the "if you have 25 questions or concerns" on Exhibit A (sic), is this Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 10 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 9 (Pages 33 to 36) 33 1 our effort to ensure we get the best, up-to-date, 2 most accurate information? 3 Q Yes, sir. 4 A Yes, sir. 5 Q Okay. And when you said "Exhibit A," you 6 were probably referring to Exhibit 1; am I right? 7 A That's correct. Yes, the letter that 8 bears my signature -- 9 Q No problem. 10 A -- above Michael Stout. 11 Q And insofar as the practice at USMS when 12 an employer/vendor like MVM does give you input, 13 questions, or concerns, are those concerns taken 14 seriously? 15 A Certainly. 16 Q And is appropriate information conveyed 17 to FOH if there is a concern or question by an 18 employer, such as MVM, about a disqualification of a 19 CSO? 20 A Yes. 21 Q And has there ever been any reluctance on 22 the part of the physicians contracted by FOH to 23 review updated information, concerns, or questions 24 about the fitness of a given CSO? 25 A I guess if the question is has there ever 34 1 been reluctance on behalf of the physicians, I have 2 not witnessed any. What their reluctance is, I 3 don't -- I personally have not witnessed them being 4 reluctant to receive additional information. 5 Q Well, my question probably was not the 6 best one. 7 Has FOH or any of their physicians ever 8 shared any reluctance with the USMS about 9 re-evaluating or addressing concerns or questions 10 about -- about the medical fitness of a CSO? 11 A Never to my knowledge. 12 Q All right. And has there ever been an 13 objection by FOH or any of its physicians lodged to 14 the U.S. Marshals Service to the effect that USMS 15 should not be sending us concerns or questions by 16 the employers? 17 A None that I know of. 18 Q Is the goal of the USMS to, as best it 19 can, ensure that CSOs' medical fitness 20 determinations are done accurately? 21 A Certainly. 22 Q Okay. Is the expectation -- well, let me 23 just rephrase that question. 24 The -- as I understand it, and correct me 25 if I'm wrong, the employers are responsible for 35 1 keeping CSOs' medical fitness-for-duty files; am I 2 right? 3 A Yes. 4 Q Okay. And insofar as -- between USMS, 5 the Judicial Security Division, and the employer, 6 who's in a better position in terms of the 7 documentation and appraisals of work performance to 8 be acquainted with the actual abilities of a given 9 CSO? 10 MR. RECTOR: Objection as to the form of 11 the question. 12 THE WITNESS: I guess I don't -- if I 13 understand your question, who do I think is in a 14 better position to evaluate a CSO's fitness for 15 duty? 16 BY MR. GRIFFIN: 17 Q Based on both the medical file, as well 18 as actual job appraisals. 19 A The vendor would have the files. 20 Q Yes. 21 A The vendor would have job appraisals. I 22 guess I don't know that I can answer the question. 23 Certainly, we have our own standards, 24 notwithstanding medical, but we wouldn't -- I don't 25 know that I can answer the question who is in a 36 1 better position. Medically, yes, we, the Marshals 2 Service, do not evaluate them medically. That's 3 what we contract FOH for. 4 Q And -- and I thank you for that 5 clarification, and for purposes of all my questions, 6 they do not have to do with security clearance, 7 background investigation, but only medical. 8 And where I was going with this, and I 9 want to make sure that the jury understands this, 10 that the employer is the -- is the entity that's 11 required to keep the entire fitness-for-duty file 12 for their own worker, correct? 13 A Yes. 14 Q And the employer is the only party who 15 actually evaluates and appraises a given CSO's 16 actual performance on the job, right? 17 A Yes. 18 Q And where I was going with this, that 19 because of those two facts, the employer here is in 20 a better position to pose questions and concerns 21 about a given fitness-for-duty recommendation than 22 the Marshals Service itself -- 23 MR. RECTOR: Object to the form of the 24 question. 25 BY MR. GRIFFIN: Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 11 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 10 (Pages 37 to 40) 37 1 Q -- is that right? 2 A Could you -- 3 Q Sure. 4 A Could you restate the question? 5 Q Is one of the reasons why you ask for the 6 employer's or vendor's input and questions and 7 concerns is because they do have a system in place 8 where the employer has the complete fitness-for-duty 9 exam records and the employer has all of the actual 10 job appraisals of the worker? Is that one of the 11 reasons why you ask for their input in the case of a 12 medical disqualification recommendation by FOH? 13 A Maybe if I answer it this way: I 14 wouldn't have that knowledge absent the employer 15 giving it to me. 16 Q Exactly. 17 A Okay. 18 Q Fair enough. That's perfectly fair. 19 And what I hear you saying is that you're 20 not positive of how much of that information 21 actually ends up physically with the Marshals 22 Service or how much of it is communicated directly 23 from the employer to FOH, if I heard you earlier 24 this morning? 25 A That's accurate, yes. 38 1 Q Okay. And I appreciate that. 2 If there is a concern by an employer or 3 vendor like MVM that a medical disqualification was 4 the result of a misunderstanding or a mistake, do 5 you at USMS want to be told about that in response 6 to a letter such as Exhibit Number 1? 7 A Yes. 8 Q And in this letter, your name is the name 9 that MVM was invited to contact in the event of 10 concerns or questions, right? 11 A Yes. 12 Q Are you aware of any concerns, or 13 questions, or issues raised by MVM after you wrote 14 this to them on October 1st, 2014? 15 A I don't recall any specific questions or 16 concerns with regard to this instance. 17 Q And I apologize if I've asked this: Had 18 MVM contacted you with questions or concerns about 19 Mr. Keneipp's disqualification, would USMS have 20 taken them seriously? 21 A Yes. 22 Q And conveyed them appropriately to FOH? 23 A Yes. 24 Q How often -- you don't have to give me 25 exact numbers, but is it -- is it uncommon for 39 1 employers or vendors to actually discuss questions 2 or concerns when it comes to medical fitness for 3 duty of CSOs? 4 A At this point, I don't recall. I 5 couldn't give you a -- even a ballpark answer. Some 6 two years ago, I simply don't recall how often it 7 happened. 8 Q No problem. 9 I gather from your answer you're no 10 longer seeing these kinds of letters? 11 A That's correct. 12 Q Okay. And how long were you serving in a 13 capacity where you -- where you were the USMS person 14 who got the letters, e-mails, or phone calls from 15 employers with questions or issues when a CSO was 16 disqualified? 17 A Approximately five to six months. 18 Q Okay. And it's just been too long for 19 you to remember how many those were? 20 A That's correct. 21 Q Fair enough. 22 And who -- who succeeded you in this role 23 of interfacing with the employers with respect to 24 CSO disqualifications? 25 A Assistant Chief Inspector Janelle, 40 1 J-A-N-E-L-L-E, Hohnke, H-O-H-N-K-E. 2 Q Are you aware of any instance when the 3 USMS actually refused to consider a concern or a 4 question raised by an employer/vendor like MVM? 5 A I am not aware of one. 6 Q During your time at the helm, you 7 certainly did not ever refuse to engage in a -- in a 8 conversation with MVM over medical disqualification 9 of any of its CSOs, correct? 10 A I do not recall an instance where I 11 refused to speak to them. 12 Q And would that be inconsistent with the 13 way you felt you wanted to manage the program, by 14 ignoring or refusing to engage with a contractor who 15 had a question or concern about a disqualification? 16 A Refusing to engage their questions or 17 concerns would be inconsistent with the way I would 18 have handled my business. 19 Q Is there -- have you ever seen anything 20 anywhere, a signal in writing, e-mail, or oral, from 21 the USMS on the one hand to a contractor such as MVM 22 on the other that discouraged them from addressing 23 questions or concerns about a medical qual -- 24 medical disqualification of a CSO? 25 A Have I seen anything, heard anything, or Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 12 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 11 (Pages 41 to 44) 41 1 had a memo of discouraging the vendor from engaging 2 the USMS with questions? 3 Q Or concerns about a medical 4 disqualification of a CSO. 5 A I have not seen anything or heard 6 anything, as you characterized it, of that nature. 7 Q Insofar as the Marshals Service's 8 relationship with FOH, I am assuming that you in 9 your role had nothing to do with the contractual 10 relationship between USMS on the one hand and the 11 Federal Occupational Health people on the other? 12 A That's correct. 13 Q And insofar as -- well, let me just ask 14 you this sort of hypothetical, sort of not, but if 15 the contractor comes to you and says, Philip or 16 Mr. Cornelious, we think there's a misinterpretation 17 of these records, because, for example, on 18 Exhibit 2, you see there, there's a statement made 19 by the FOH doctor that the personal physician says 20 that the CSO is unable to run, and the contractor 21 writes and says, well, I think that that's 22 misinterpretation of the records, because the 23 personal physician actually says he has normal 24 ambulating -- he ambulates normally, is that not -- 25 I'm not asking you to accept whether that's true or 42 1 not. Is that the sort of information that had the 2 contractor submitted it to you and asked you to 3 submit that to FOH that you would have faithfully 4 sent that to FOH for review? 5 MR. RECTOR: Object to the form of the 6 question. 7 THE WITNESS: Whether I would -- the 8 process, again, I don't know that I would have sent 9 it on my own. At some way, shape, or form, I would 10 have either directed them to submit that to FOH or 11 whether it comes through the Marshals Service, the 12 exact process I cannot recall. However, that 13 information would have gotten to FOH, whether by 14 directing the vendor to send it directly or whether 15 we would have forwarded it. 16 BY MR. GRIFFIN: 17 Q And that's because the USMS wants to make 18 sure that at the end of the day the decision is a 19 right -- is a good one, accurate one, and a right 20 one? 21 A Correct. 22 MR. GRIFFIN: I'll pass the witness at 23 this time. 24 Thank you, Mr. Cornelious. 25 MR. RECTOR: Do you need to take a break? 43 1 THE WITNESS: No, sir. 2 MR. RECTOR: Let's go off record for just 3 a second just in case anybody does want to take a 4 break. 5 THE VIDEOGRAPHER: We are now going off 6 the record. The time is 10:55. 7 (A recess was taken.) 8 THE VIDEOGRAPHER: We are back on the 9 record. The time now is 11:01. 10 EXAMINATION BY COUNSEL FOR DEFENDANT 11 BY MR. RECTOR: 12 Q Mr. Cornelious, thank you for your time 13 today. Just a couple quick questions before we 14 begin. 15 Before today's deposition, did you meet 16 with anyone to discuss this case or this deposition? 17 A Just my attorney or the Marshals Service 18 attorney. 19 Q Did you meet with Mr. Griffin or anyone 20 from Mr. Griffin's office? 21 A No, sir. 22 Q Did you review any documents before 23 coming here today in preparation for this 24 deposition? 25 A I -- there was one document that I looked 44 1 at briefly this morning. 2 Q Do you recall what that document was? 3 A I don't, actually. 4 Q That is okay. I understand. 5 This shouldn't take too long. Just a 6 couple of follow-up questions to what Mr. Griffin 7 has already asked you. 8 But going back to what you discussed with 9 Mr. Griffin about the review of medical documents, 10 medical examinations, who, again, is the agency that 11 the Marshals Service contracts with to conduct those 12 investigations? 13 A Federal Occupational Health. 14 Q And is that a subset of any agency? 15 A I -- I don't know. 16 Q That is okay. 17 Is there a particular physician that is 18 designated as the FOH doctor? 19 A I know who it was at the time. I 20 don't -- having been out of that for a couple years, 21 I don't know specifically if she's still there. 22 Q Do you recall the name of that doctor? 23 A Dr. Goldhagen. 24 Q Dr. Goldhagen. 25 And for Dr. Goldhagen -- who was Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 13 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 12 (Pages 45 to 48) 45 1 responsible for designating Dr. Goldhagen at the 2 FOH? 3 A I -- I can't -- 4 Q And if you don't know the answer to these 5 questions -- 6 A I do not. 7 Q -- "I don't know" is perfectly 8 acceptable. 9 You talked with Mr. Griffin earlier about 10 the process for selecting physicians who ultimately 11 review medical information, conduct fitness-for-duty 12 examinations, et cetera. 13 Do you recall that conversation? 14 A Yes. 15 Q Mr. Griffin had asked whether MVM was 16 responsible for selecting those physicians, and I 17 believe that you testified that is correct. 18 Do I -- do I recall that right? 19 A Yes, sir. 20 Q What is that selection process for 21 selecting a physician? Is that something that the 22 Marshals Service has to approve? 23 A I know it's outlined in the contract and 24 in the Statement of Work, but to specifically recall 25 it off the top of my head, I -- I do not. 46 1 Q Generally, do you know if there's some 2 sort of approval process that a physician must go 3 through by either the Marshals Service or the FOH 4 before they can be a doctor that conducts 5 examinations? 6 A Again, I think there are specific 7 requirements outlined. Whether there's a specific 8 approval process of those documents, I do not know 9 at this time. 10 Q In the scope of your duties either now or 11 in 2014, is that a provision of the contract that 12 you dealt with extensively or would that have been 13 another person? 14 MR. GRIFFIN: Object to the form. 15 THE WITNESS: In 2014, that would have 16 come under my purview. Whether dealing with it 17 extensively, certainly it was not extensive that I 18 dealt with that. 19 BY MR. RECTOR: 20 Q You testified earlier in response to a 21 question from Mr. Griffin that your branch, at least 22 as far as the way the CSO program is divided, does 23 not deal with contract negotiations, or the 24 implementation of the contract, or just the initial 25 bid process. 47 1 Do I have that right? 2 A I believe his question was interpretation 3 of the contract, not implementation. No, my role 4 would not have been to bid or to solicit or -- any 5 of those provisions, but to implement the provisions 6 of that contract, not to interpret specifically. 7 Q Understood. 8 I'm going to hand you what I will mark as 9 Defendant's Exhibit 1. It is a weighty document. 10 MR. RECTOR: Oh, you've got it already? 11 THE REPORTER: Yeah. 12 MR. RECTOR: Thank you very much. That 13 makes things easier. 14 (Defendant's Exhibit 1 was marked for 15 identification and is attached to the transcript.) 16 BY MR. RECTOR: 17 Q Take a minute and look at that. 18 A (Witness complies.) 19 Q Are you familiar with this document? 20 A Yes. 21 Q Okay. What is this? 22 A This is the contract and Statement of 23 Work for the 2nd, 9th, and 10th judicial circuits. 24 Q Okay. Would this have been the contract 25 that was in effect in approximately October of 2014? 48 1 A Yes, sir. 2 Q And would this have covered the Northern 3 District of Oklahoma? 4 A Yes, sir. 5 Q Before we get to specific contractual 6 provisions, I want to talk a little bit about the 7 medical qualifications and medical standards 8 generally that's set forth in this contract. 9 Can you tell me what led to the 10 development of the medical qualifications that are 11 in this contract and presumably similar contracts 12 that the Marshals Service has? 13 A As far as the specifics and what all the 14 things were called, no. I know there was a review 15 of the position and requirements determined based on 16 what that position is. 17 Q And this is my fault. I should have 18 started somewhere else. Who is responsible for 19 developing the medical qualifications in this 20 contract? 21 MR. GRIFFIN: Object to the form. 22 THE WITNESS: I don't know. 23 BY MR. RECTOR: 24 Q It's not MVM, though, correct? 25 MR. GRIFFIN: Object to the form. Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 14 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 13 (Pages 49 to 52) 49 1 THE WITNESS: Correct. 2 BY MR. RECTOR: 3 Q Would any vendor have the occasion -- or 4 have they ever drafted their own medical 5 qualifications and asked that it be put into one of 6 these contracts? 7 MR. GRIFFIN: Object to the form. 8 THE WITNESS: Have they drafted -- to my 9 knowledge, no vendor has drafted a specific 10 requirement. 11 BY MR. RECTOR: 12 Q The medical standards that are in that 13 contract, can you go to them for me? Do you know 14 where that's located? 15 And is that Section C.9, Physical and 16 Medical Standards up at the top? 17 A Yes, sir. 18 Q For identification purposes, we're 19 beginning on the page Bates labeled MVM 000121. 20 Is that what you've got? 21 A At the bottom right-hand corner? 22 Q Correct. 23 A Yes, sir. 24 Q So when we've been talking about physical 25 and medical standards, those set forth in 50 1 Section C.9 are the ones that we've been discussing, 2 correct? 3 A Yes, sir. 4 Q And, again, to your knowledge, the 5 physical and medical standards did not come from MVM 6 or any other vendor? 7 A That's correct. To my knowledge, no, 8 they did not. 9 Q The language in C.9, does it come from 10 the United States Marshals Service? 11 MR. GRIFFIN: Object to the form. 12 THE WITNESS: Who exactly wrote them, I 13 cannot -- I can't say whether it was Marshals 14 Service, whether it was FOH. I can't say 15 specifically who wrote these requirements, what 16 entity. 17 BY MR. RECTOR: 18 Q Fair enough. 19 Does anywhere in Section C.9 address the 20 process that a contractor or vendor must comply with 21 in the event a CSO is medically disqualified? 22 A If I can take some time to review it. 23 Q Oh, absolutely, and -- and I -- and I 24 don't want to lead your answer. I'm specifically 25 looking at C.9.1.5. And if you'll go with me to the 51 1 middle part of this section, it says, "The 2 Contractor shall not allow any individual to perform 3 under this contract until the individual's 4 qualification status has been determined by the 5 Federal Occupational Health and a written approval 6 has been granted by the Chief, OCS." 7 Did I read that correctly? 8 A Yes, sir. 9 Q Going back up a sentence before that, 10 "Failure to meet any one of the required medical 11 and/or physical qualifications shall disqualify an 12 individual from performing as a CSO under this 13 contract." 14 Did I read that correctly? 15 A Yes, sir. 16 Q So in the event that a CSO is medically 17 disqualified under this, what is a contractor 18 obligated to do? 19 MR. GRIFFIN: Object to the form. 20 THE WITNESS: Under this specific 21 section, they are required to not allow that person 22 to serve. 23 BY MR. RECTOR: 24 Q Is there any recourse for a vendor if FOH 25 determines that a CSO is not medically qualified to 52 1 perform under contract? 2 A Yes. 3 Q What is that? 4 A The vendor can contact our office and/or 5 contract FOH to submit whatever documentation they 6 feel is appropriate. 7 Q You testified earlier when speaking with 8 Mr. Griffin about the medical review process that 9 you generally would be in the best position to 10 ensure that medical disqualification decisions were 11 accurate. 12 Do you recall that conversation? 13 MR. GRIFFIN: Objection. Excuse me, 14 object to the form. 15 THE WITNESS: Who was -- who was in the 16 best position? 17 BY MR. RECTOR: 18 Q Correct. 19 A And -- 20 Q I believe Mr. Griffin's point, and 21 correct me if I'm wrong, was given that MVM has 22 performance appraisals and they're required under 23 the contract to keep medical records, would they be 24 in the best position to evaluate medical 25 determinations? Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 15 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 14 (Pages 53 to 56) 53 1 MR. GRIFFIN: Object to the form. 2 THE WITNESS: Yes, and I -- I recall my 3 answer was I wouldn't have it. Certainly, the 4 vendor would, I believe, if that's the line we're 5 talking about. 6 BY MR. RECTOR: 7 Q That's correct. That's what I'm talking 8 about. 9 Are you aware of any physicians or anyone 10 on staff by MVM to review medical records? 11 MR. GRIFFIN: Object to the form. 12 THE WITNESS: I'm not aware. 13 BY MR. RECTOR: 14 Q Have you ever spoken with anyone at MVM 15 that was a designated physician or had reviewed 16 medical records from an FOH-approved physician? 17 MR. GRIFFIN: Object to the form. 18 THE WITNESS: Whether -- whether MVM has 19 someone who reviews those? Have I ever spoken to 20 anybody that reviews those? 21 BY MR. RECTOR: 22 Q Correct. 23 A No, I have not. 24 Q To your knowledge, is there anyone at MVM 25 that would review those medical records? 54 1 A Not to my knowledge, no. 2 Q Does the contract require MVM to have 3 anyone on staff to review medical determinations? 4 A Not to my knowledge, no. 5 Q And, again, the Marshals Service does not 6 contract with MVM to provide any sort of medical 7 services, whether it review fitness-for-duty 8 determinations, medical evaluations, or what have 9 you? 10 MR. GRIFFIN: Object to the form. 11 THE WITNESS: The Marshals Service does 12 not contract with MVM to make medical decisions. 13 BY MR. RECTOR: 14 Q Under the contract provision that we just 15 read, C.9.1.5, you testified that if there is a 16 determination by the FOH that a CSO is medically 17 disqualified, then the contractor must remove them 18 from performing under the contract; is that fair? 19 A Based upon the Chief's letter, correct. 20 Q If -- going back to Plaintiff's 21 Exhibit 1, if you would, the second part of that 22 says if you have any questions or concerns regarding 23 this decision, please contact you, Mr. Cornelious, 24 at your phone number, correct? 25 A Correct. 55 1 Q Okay. Other than -- well, let me ask it 2 this way: If MVM contacted you and said we 3 disagree, we're not going to remove CSO Keneipp from 4 this contract, what would the U.S. Marshals Service 5 response be? 6 MR. GRIFFIN: Object to the form. 7 THE WITNESS: My first question would be 8 why, and my next questions would be based on what 9 that answer was. 10 BY MR. RECTOR: 11 Q Does MVM anywhere in the contract have 12 the authority to override the Marshals Service's 13 decision that a CSO be removed from a contract? 14 A They do not. 15 Q Going back to the issue of questions and 16 concerns, are you aware of a letter that Plaintiff 17 Keneipp drafted and circulated around this time 18 prior to his termination about concerns he had with 19 the Marshals Service medical qualifications and 20 testing? 21 A Yes. 22 Q And you reviewed that letter? 23 A When we spoke earlier, I recall that is 24 the letter that was shown to me, and I had, quite 25 frankly, forgotten about that letter until I saw it 56 1 this morning. 2 Q You say you forgot about the letter. 3 When did you first see the letter, or how 4 did you become aware of the letter, rather? 5 A The exact process, I don't recall 6 having -- being the Assistant Chief in charge of 7 that section. Somehow, that letter would have found 8 its way to me. 9 Q Would it have found its way to you 10 because MVM sent it to you? 11 MR. GRIFFIN: Object to the form. 12 THE WITNESS: I cannot say for sure. 13 BY MR. RECTOR: 14 Q So you couldn't recall -- and this is -- 15 this is okay -- whether you received that because it 16 was sent to someone in the Marshals Service or if it 17 was sent to you by MVM? 18 MR. GRIFFIN: Object to the form. 19 THE WITNESS: No, I cannot recall how it 20 ended up -- how I came about seeing it. 21 BY MR. RECTOR: 22 Q But one way or the other, you were aware 23 of it, correct? 24 A Yes. Again, I -- until this morning, I 25 did not remember that letter. Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 16 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 15 (Pages 57 to 60) 57 1 Q And you were aware of it before -- before 2 Mr. Keneipp was removed from the contract at the 3 Marshals Service direction, correct? 4 MR. GRIFFIN: Object to the form. 5 THE WITNESS: I cannot recall the 6 timeline, whether it was before or after. 7 MR. RECTOR: Counsel, in having my 8 deposition notebook prepared, I was provided with 9 only the first page of the letter, which is here 10 (indicating). Here is the exhibit (indicating) that 11 I am going to show to Mr. Cornelious, which contains 12 all three pages. 13 Can we agree on that exhibit as being the 14 full and complete letter in question? 15 MR. GRIFFIN: I do not know. I do not 16 know the answer to that question. 17 MR. RECTOR: Let's go off the record for 18 a second. 19 THE VIDEOGRAPHER: We are now going off 20 record. The time is 11:18. 21 (Discussion off the record.) 22 THE VIDEOGRAPHER: We are back on the 23 record. The time now is 11:19. 24 (Defendant's Exhibit 2 was marked for 25 identification and is attached to the transcript.) 58 1 BY MR. RECTOR: 2 Q Mr. Cornelious, I'm going to hand you 3 what I'll mark as Defendant's Exhibit 2. Take a 4 minute to look at that document. 5 A (Witness complies.) 6 Q The letter that we were just speaking 7 about for Mr. Keneipp outlining his concerns with 8 the medical exam process, is that this letter that 9 I've handed you? 10 A It appears to be a letter from 11 Mr. Keneipp suggesting issues he has with a wide 12 range of things. 13 Q Is one of those things that he has 14 concerns about the medical qualifications and 15 medical tests that are required by the Marshals 16 Service? 17 A Yes, sir. 18 Q If you go to the last page of that 19 letter, there is a block on there with several 20 entities who are carbon copied. 21 Are any of the entities listed in that 22 carbon copy your office, or, if it would have been 23 sent to that office, would you have received the 24 letter through those channels? 25 MR. GRIFFIN: Object to the form. 59 1 THE WITNESS: I do see under the carbon 2 copy, U.S. Marshal HQ Judicial Security Division. 3 BY MR. RECTOR: 4 Q And that's your division, correct? 5 A Judicial Security Division is my 6 division, correct. 7 Q So that letter sensibly, then, would have 8 been sent to you? 9 MR. GRIFFIN: Object to the form. 10 THE WITNESS: If I can answer it this 11 way? 12 BY MR. RECTOR: 13 Q Sure. 14 A By virtue of Judicial Security Division, 15 yes; however, there is no U.S. Marshal of the 16 Judicial Security Division. So, yes, Judicial 17 Security Division, I can certainly agree to that. 18 Q I understand. 19 But there's no question that you were 20 aware of this letter and the contents of it, 21 correct? 22 MR. GRIFFIN: Object to the form. 23 THE WITNESS: Correct, there's no 24 question. I do recall having seen this letter. 25 BY MR. RECTOR: 60 1 Q And, again, that would have been prior to 2 October 2nd, 2014, before Mr. Keneipp was removed 3 from the contract? 4 MR. GRIFFIN: Object to form. 5 THE WITNESS: I don't personally remember 6 what dates; however, I can agree that it is dated 7 August 23rd of '14. 8 BY MR. RECTOR: 9 Q Do you recall whether you had any 10 conversations with anyone at MVM about this letter? 11 A I do not recall. 12 Q It's possible that you did? 13 MR. GRIFFIN: Object to the form. 14 THE WITNESS: I -- I can't recall. 15 BY MR. RECTOR: 16 Q My question is -- I understand. 17 So then it's possible that you could have 18 had conversations, but you don't recall them? 19 MR. GRIFFIN: Object to the form. 20 THE WITNESS: It is certainly possible. 21 BY MR. RECTOR: 22 Q Thank you. 23 You testified earlier in response to 24 looking at Plaintiff's Exhibit Number 2 -- or 25 Exhibit Number 1, rather, that you don't see these Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 17 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 16 (Pages 61 to 64) 61 1 letters all that often anymore; is that right? 2 MR. GRIFFIN: Object to the form. 3 THE WITNESS: That's correct. From time 4 to time if someone is on vacation, I may or may not 5 sign one here or there. 6 BY MR. RECTOR: 7 Q Is this still the standard form of letter 8 that you use to communicate that an FOH has 9 determined a CSO to be medically disqualified? 10 A To the best of my knowledge, I believe it 11 is. 12 Q Going back to Exhibit 1 for Defendants 13 briefly, the contract, to your knowledge, is the 14 language in Section C.9, is that the same in every 15 contract you've had with a vendor to provide Court 16 Security Officers? 17 MR. GRIFFIN: Object to the form. 18 THE WITNESS: Generally, yes. 19 BY MR. RECTOR: 20 Q You say "generally." Can you recall any 21 variations that there might be in other contracts 22 with other vendors? 23 A I cannot say specifically. However, 24 because the contracts are solicited and bid in 25 different years, there may be minor alterations that 62 1 don't go in each contract each time, but nothing 2 material is different between vendors. 3 Q Do you recall when the Marshals Service 4 started using these qualification -- medical 5 qualification standards? 6 A Certainly before my time. 7 Q Which would have been in this instance 8 2011, correct? 9 A Yes, sir. 10 Q They've been using them since then or 11 prior to that date? 12 MR. GRIFFIN: Object to the form. 13 THE WITNESS: Specific things have 14 changed over the years, but, in general, I have no 15 reason to think these are different. 16 BY MR. RECTOR: 17 Q Anything specific in Section C.9 or the 18 medical qualification standards that would have 19 changed? 20 A I could not point out a specific change. 21 What I'm referring to generally is we used to do a 22 physical every year for CSOs, and we've changed it 23 to every other, things of that nature. But specific 24 to the actual standard, I can't say offhand what may 25 or may not have been changed. 63 1 Q Going to the bid process that you just 2 talked about, are vendors ever allowed to send along 3 suggested contract language along with their bids? 4 MR. GRIFFIN: Object to the form. 5 THE WITNESS: I don't know. 6 BY MR. RECTOR: 7 Q Are you aware of that ever happening? 8 MR. GRIFFIN: Object to the form. 9 THE WITNESS: I don't know. I'm not 10 involved in that process. 11 BY MR. RECTOR: 12 Q That's fair. 13 A I know that there is a process, having 14 been in this division for five years. 15 Q No, I understand. I won't -- I won't 16 make you answer any more questions about the 17 contract process. 18 Give me one second to make sure I've got 19 all my notes together. We are about finished. 20 Can you explain why the medical 21 qualifications as they are in this contract, 22 Section C.9, are important? 23 MR. GRIFFIN: Object to the form. 24 BY MR. RECTOR: 25 Q In other words, the Marshals Service puts 64 1 that language in there. There must be a reason for 2 it. Is there a particular reason they feel that 3 those qualifications are important? 4 MR. GRIFFIN: Object to the form. 5 THE WITNESS: I think originally my 6 testimony was not specific that the Marshals Service 7 puts this in here. 8 Who drafted this specifically -- 9 certainly, we control it. I don't dispute that. 10 Who put it in here, who designed the actual wording, 11 I -- I can't say. 12 However, yes, we do feel it's important, 13 based on the security of the Judiciary and the 14 public in the building, that a CSO meet certain 15 physical standards. 16 BY MR. RECTOR: 17 Q Is there an appeals process in the 18 contract that would allow either MVM or a CSO to 19 appeal an FOH medical determination? 20 A Not that I know of specifically in the 21 contract. 22 Q Has MVM ever contacted you, since you've 23 been there in 2011, to express an opinion or a 24 concern or even a disagreement about a medical 25 determination they've received from the FOH? Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 18 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 17 (Pages 65 to 68) 65 1 A I can't recall of any, one way or the 2 other. 3 Q Are you familiar with a CSO by the name 4 of Jessie McCracken? 5 A No, sir. 6 Q Who is Terry Bearden? 7 A Terry Bearden was formerly the 8 Contracting Officer for the CSO program. 9 Q What does -- what does -- that job title, 10 Contracting Officer, what is that person responsible 11 for? 12 A The administration of the -- of this 13 contract, the interpretation of its language. 14 Q And when was Mr. Bearden the Contracting 15 Officer? 16 A I can tell you I think he's been gone 17 about eight months -- eight, nine months. 18 Q If a contractor or vendor has an issue 19 with a medical determination or any other 20 determination for the FOH, would they also have gone 21 or could they have gone to Mr. Bearden with 22 questions or concerns? 23 MR. GRIFFIN: Object to the form. 24 THE WITNESS: Provided he was the 25 Contracting Officer -- 66 1 BY MR. RECTOR: 2 Q Correct. 3 A -- at the time? 4 Yes, the vendor could voice any concern 5 or any opposition to the contract language with the 6 Contracting Officer. 7 Q If Mr. Bearden would have received a 8 concern or complaint from a vendor about an FOH 9 determination, would you have been aware of it? 10 MR. GRIFFIN: Object to the form. 11 BY MR. RECTOR: 12 Q Would it have funneled up to you? 13 MR. GRIFFIN: Object to the form. 14 THE WITNESS: "Up" would not be the way 15 I'd -- but it -- 16 BY MR. RECTOR: 17 Q Over to you? 18 A Over. 19 MR. GRIFFIN: Object to the form. 20 THE WITNESS: If -- if something dealing 21 with -- provided I was in that section at that time, 22 Mr. Bearden would forward to the Chief of the Office 23 of Court Security whatever concern, and that 24 would -- the Chief would then push it out to the 25 entity having the knowledge of that specific 67 1 concern. 2 BY MR. RECTOR: 3 Q Do you recall hearing about any concerns 4 from MVM regarding either Mr. McCracken or 5 Mr. Keneipp in terms of their medical examinations? 6 A I do not recall anything. 7 Q The functions or the job duties of the 8 CSO position, are those in the contract? 9 A There are performance standards in the 10 contract, and there are post requirements in the 11 contract. 12 Q In the case of both the performance 13 standards and the post requirements, are those 14 functions -- do they emanate from the Marshals 15 Service? 16 A Yes. 17 Q Give me one moment, Mr. Cornelious. 18 Is there anywhere in the contract where 19 MVM delegates or designates any other entity as 20 responsible for making medical determinations or 21 doing fitness-for-duty exams? 22 MR. GRIFFIN: Object to the form. 23 THE WITNESS: Not that I know of. 24 BY MR. RECTOR: 25 Q Does the contract allow the Marshals 68 1 Service to mandate that MVM remove a CSO for reasons 2 other than medical disqualifications? 3 A Yes. 4 MR. GRIFFIN: Object. 5 BY MR. RECTOR: 6 Q What would those be? 7 A We can remove them for performance 8 standards violations. Off the top of my head, 9 that's -- that's the one specific I have right now. 10 Q Performance standards, does that include 11 things like conduct rules? 12 A Yes, sir, that is specifically what it 13 is. 14 Q If MVM had a conduct issue with one of 15 its CSOs and decided -- this is, for example, to 16 discipline them and give them a written warning. 17 Would they make you aware of that discipline? 18 MR. GRIFFIN: Object to the form. 19 THE WITNESS: It depends. 20 BY MR. RECTOR: 21 Q On what? 22 A On MVM. 23 Q What do you mean? 24 A MVM, they discipline their employees at 25 any point they choose. If they don't tell us about Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 19 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 18 (Pages 69 to 72) 69 1 it, then I wouldn't know. I would have no way of 2 knowing but they tell us. 3 Q If MVM disciplines an employee and tells 4 you about it, does the USMS have the authority under 5 the contract to impose a more severe discipline than 6 what MVM initially had meted out to the CSO? 7 MR. GRIFFIN: Object to the form. 8 THE WITNESS: The Marshals Service 9 doesn't discipline the employees of the vendor. If 10 by more severe -- the Marshals Service retains the 11 ultimate right to demand the removal of a CSO from 12 this contract. That is not disciplinary in nature. 13 MVM has the authority to do what they wish with that 14 employee. 15 BY MR. RECTOR: 16 Q But if MVM gives a CSO, in this example, 17 a written warning for some performance standard 18 violation, can the Marshals Service go in and then 19 say we demand that you remove the CSO from 20 performing under the contract? 21 A Yes, ultimately we could. 22 Q And that has actually happened in the 23 past, correct? 24 A Yes. 25 Q Since you have been in your position as 70 1 of 2011? 2 A Specific to MVM, I do not know. I do 3 know that, yes, there have been occasions where a 4 vendor has submitted a proposal for action that we 5 did not concur with. 6 Q And the Marshals Service, much like with 7 performance standard violations, retains the 8 ultimate authority to demand that CSOs be removed 9 from performing under the contract if the FOH 10 determines they are medically disqualified? 11 MR. GRIFFIN: Object to the form. 12 THE WITNESS: If FOH makes the 13 determination that they do not meet the medical 14 standards in the contract, then, yes, we would 15 direct -- we have the authority to direct the vendor 16 to remove them from the contract. 17 BY MR. RECTOR: 18 Q Does the vendor have any discretion to 19 not remove the CSO? Could they ignore the USMS's 20 directive? 21 A No. 22 MR. RECTOR: Pass the witness. 23 FURTHER EXAMINATION BY COUNSEL FOR PLAINTIFF 24 BY MR. GRIFFIN: 25 Q But what they could do is share 71 1 discrepancies, concern, or opposition to that 2 determination by FOH and submit it to you, right? 3 A Yes. 4 Q Okay. And you were asked some questions, 5 and it's no fault of yours you can't remember 6 everything, but he asked you about a gentleman by 7 the name of Jessie McCracken, and I'll show you 8 what's been -- previously been marked, and it's my 9 original of it, or at least my copy of McHale 10 Exhibit Number 26, and ask if you can confirm that's 11 an e-mail string between you and Veronica Naman 12 telling her that USMS doesn't engage directly with 13 CSOs and that you faithfully responded to Ms. Naman 14 when she sent Mr. McCracken's concern about FOH's 15 fitness-for-duty review. And take as long as you 16 want to refresh your memory. 17 MR. RECTOR: Object to the form of the 18 question. 19 And if you -- do you have an extra copy? 20 MR. GRIFFIN: No. I said that's my 21 original from his deposition, and I don't mind you 22 looking over my shoulder. And it is on double-sided 23 paper, because it's out of my original notebook. 24 MR. RECTOR: Let me skip to the page 25 here. 72 1 MR. GRIFFIN: Just remember, it's on both 2 sides. 3 MR. RECTOR: Thanks. 4 THE WITNESS: Okay. I've reviewed it. 5 BY MR. GRIFFIN: 6 Q No problem. 7 Does that refresh your memory that, in 8 fact, Ms. Naman did in that instance with 9 Mr. Cracken (sic) directly approach you about some 10 concerns about CSO McCracken? 11 A Yes, it does. 12 Q And did you respond appropriately to -- 13 appropriately to Ms. Naman directly and share with 14 her that USMS's communication channels are through 15 the vendor, not to the CSO directly? 16 A Yes. I told her through the e-mail that 17 we would not engage directly with the CSO, but if 18 she felt there was some discrepancy or mistake in 19 the test to submit those and specifically we can 20 send them to FOH and ask them to take another look. 21 Q Sure. 22 And given your standard and practice that 23 you were there, had the contractor submitted 24 documentation to you that suggested that the 25 reviewing physician had perhaps misinterpreted or Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 20 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 19 (Pages 73 to 76) 73 1 missed some direct personal physician statements 2 about a given CSO's ability to run, that's the kind 3 of thing that you would have faithfully submitted to 4 FOH for their review? 5 A Specific to the kind of thing and that 6 characterization, I would not make any 7 determination -- determination of any documentation. 8 If the vendor felt it was rebuttal or appropriate to 9 send, I would forward it to FOH for their review. 10 Q That's what I mean. 11 Regardless of whether it's true or not, 12 if the contractor, vendor, MVM, had sent information 13 that showed in its view there was a discrepancy, 14 that's something that would have been sent along to 15 FOH for their review? 16 A Correct. 17 Q Fair enough. 18 And let me ask you -- you were asked 19 several questions about the contract, and I would 20 like for you, if you don't mind, to look at the 21 contract and take a look, if you don't mind, at 22 Section C.9.2.1, and -- and when you're there, just 23 let me know. 24 A I am here. 25 Q I would like for you to just confirm that 74 1 these two parties -- and I'm talking about MVM and 2 the Marshals Service. As I understand it, these two 3 parties have entered into a contract that required 4 MVM to select the doctors and physicians to perform 5 and document the medical examinations for CSOs. 6 Am I reading that right? 7 A In C.9.2.1, the Contractor shall 8 establish and maintain designated licensed 9 physicians to perform medical examinations. 10 Q And while I know you're not expert 11 interpreting the contract, you understand that two 12 parties voluntarily entered into this contract, the 13 USMS on the one hand and MVM on the other; am I 14 right? 15 A Correct. 16 Q All right. And -- but what I want the 17 ladies and gentlemen of the jury to understand, that 18 these two parties have agreed that MVM had the 19 responsibility both for hiring and paying the 20 physicians to conduct these medical examinations for 21 CSOs. 22 A Correct. 23 Q And not only that, under the contract 24 that MVM signed with the Marshals Service, the 25 contractor has to maintain a file on these 75 1 physicians, as well as a file on their annual board 2 certification of any of those physicians to be 3 licensed by the State Board of Medical Examiners to 4 practice in their field of expertise. 5 Am I right in reading from C.9.2.3? 6 A You're correct in that C.9.2.3 does list 7 several factors that the contractor shall maintain 8 on file. Specifically, I can -- I can read it, but, 9 yes, there are certain residency training programs, 10 licensing boards contractor shall maintain on file. 11 Q Right. 12 Under the contractor -- under the 13 contract, MVM chose these physicians, not the 14 Marshals Service, right? 15 A Correct. 16 Q Insofar as the relationship between the 17 USMS and the contractors, is it the practice of USMS 18 to do its best to ensure that FOH has all the 19 information it needs to make a decision one way or 20 the other on a CSO's fitness for duty? 21 A Can you restate that, please? 22 Q Sure. 23 Going back to your letter to the 24 contractors that asks them to give you input, 25 concern, or questions, is part of the justification 76 1 for that that you want FOH to have all the 2 information it can have in order to make a correct 3 decision about whether a given CSO will be removed 4 or not because of medical disqualification? 5 A Yes, we want FOH to have all relevant 6 information. 7 Q Okay. And in terms of the contract 8 itself, there's some deadlines of 60 days, 30 days. 9 Is it the practice of the Marshals 10 Service to allow FOH to make recommendations up or 11 down on a given CSO's medical fitness for duty? 12 MR. RECTOR: Object to the form of the 13 question. 14 BY MR. GRIFFIN: 15 Q Do you follow my question? 16 A If I follow appropriately, FOH makes the 17 recommendation regarding fitness for duty from a 18 medical perspective. 19 Q Right. 20 And as I understand it, the way a -- the 21 way these two parties -- their pattern and practice, 22 when the USMS gets a disqualification memo from the 23 FOH, that memo then goes to the USMS, who then 24 writes -- puts something in writing to the 25 contractor that shares with them that this CSO Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 21 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 20 (Pages 77 to 80) 77 1 should no longer serve under the contract; am I 2 right? 3 MR. RECTOR: Object to the form of the 4 question. 5 THE WITNESS: We receive the document 6 from FOH that says they aren't medically qualified, 7 we would draft a letter, and, yes, that's how we 8 would communicate with the vendor. 9 BY MR. GRIFFIN: 10 Q Sure. 11 And for lack of a better word, the FOH's 12 communication to the Marshals Service about a 13 disqualification is not self-effectuating in the 14 sense that the FOH makes a recommendation that 15 automatically is sent by FOH to the -- to the 16 contractor? Do you follow what I'm asking? There's 17 a step in between removal. The FOH first acts, 18 right, with the recommendation? 19 A Correct. 20 Q That is transmitted to the Marshals 21 Service, right? 22 A Correct. 23 Q And then, pursuant to the contract 24 between MVM and the Marshals Service, the Marshals 25 Service then puts something in writing to the 78 1 contractor that says this specific CSO is to be 2 removed? 3 A Correct. 4 Q Okay. And let's say that FOH -- well, 5 let's say FOH asks for records and they come in 6 late, they arrive late at FOH's headquarters, or FOH 7 doesn't get everything they want, they want umpteen 8 tests and they only get umpteen tests. 9 Is it the practice of the USMS to allow 10 the FOH to determine when and if they have 11 sufficient information to adjudge the medical 12 fitness for a CSO, or does USMS make any attempt to 13 interfere with that? 14 A To make sure I understand your question, 15 because I think we're talking about a couple of 16 different things -- 17 Q Okay. 18 A -- FOH will review the submission. 19 Q Yes. 20 A If FOH feels they don't have enough 21 information, they will request whatever 22 documentation they need through the Marshals Service 23 to the vendor. 24 Q Uh-huh. 25 A What the vendor submits after that, 79 1 FOH -- I don't know what they do, but FOH does 2 not -- FOH asks for what they want. 3 Q Yes. 4 A The Marshals Service doesn't say to FOH 5 did you look at this or did you look at that. 6 Do I understand your question? 7 Q Let me just pose it in terms of -- it 8 doesn't involve you personally, but a situation 9 where FOH asks for certain records. Let's say they 10 ask for fourteen sets of records and have them do 11 three tests. 12 That would normally get communicated from 13 FOH somehow back to the vendor, who then would turn 14 it over to the CSO, correct, to go do the tests and 15 obtain the records, right? 16 A Specific to how the vendor directs the 17 CSO to get that information, I don't know that. 18 But, yes, at some point coming from CSO and vendor, 19 that information has to get back to FOH. 20 Q Right. 21 And when FOH says we want something 22 within 60 days and something comes in in 75 days, 23 does the Marshals Service intervene at 60 days and 24 write the contractor and say you are to remove this 25 person from contract because they were late getting 80 1 the information back to FOH, or do -- or does the 2 Marshals Service let FOH determine when the 3 information is too late or not enough? 4 A Okay. I think I understand now. There 5 is -- the Marshals Service does have the authority 6 to remove or demand the removal for non-compliance. 7 Q Yes. 8 A Yes, that would be a Marshals Service 9 decision. 10 Q Right. 11 My question is: Is it the pattern and 12 practice -- does the Marshals Service make 13 those decisions about 60 days? Let's say -- let's 14 say the CSO is asked to get information within 15 60 days, and the contract says they're supposed to 16 get things within 60 days, C.9.3.7. Take a look at 17 what I'm talking about. 18 What I'm trying to figure out is whether 19 the Marshals Service treats this as 20 self-effectuating, or is there a process by which 21 FOH communicates with the Marshals Service about 22 late or incomplete medical documentations? And you 23 tell me when you're there. 24 A I am at C.9.3.7. If your question is 25 does FOH take any action against the CSO via Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 22 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 21 (Pages 81 to 84) 81 1 removal, no. They must come through the Marshals 2 Service. 3 Q Right. 4 And so the pattern and practice at the 5 Marshals Service is not to police the 60-day 6 deadline that FOH imposes for its tests; isn't that 7 right? The Marshals Service doesn't count 60 days 8 and then after 60 days say remove this man or woman? 9 A Depending on the test, FOH will say how 10 long they believe that specific test should take, 11 whether it's a medical thing where they have to take 12 more time. I don't know what that process is. 13 However, if someone doesn't submit the 14 required information or the requested information 15 from FOH, then at 60 days the Marshals Service could 16 step in and direct the vendor to remove that person 17 for non-compliance. 18 Q Right, but I'm not asking you about 19 hypothetical or what they might be able to do under 20 the contract. I'm asking about the pattern and 21 practice. 22 When FOH orders 14 tests and only gets 12 23 of them back and asks for it within 60 days and gets 24 it back within 75 days, is that something normally 25 deferred to FOH in terms of whether or not FOH has 82 1 adequate information to clear or not clear a CSO? 2 Are we -- are we communicating better now? 3 A Yes, sir, I believe so. 4 Q Okay. 5 A FOH determines what FOH needs to make a 6 medical determination. The Marshals Service would 7 not tell FOH, no, 12 -- in your scenario, 12 of the 8 14 is enough, you should make a decision. 9 Am I -- 10 Q Exactly. 11 So under the scenario that FOH does order 12 some tests, doesn't get all the tests they want but 13 receives enough information to be able to make a 14 decision yea or nay, fit or unfit, the FOH can, even 15 if the material is delivered 12 days late, 16 determine -- make a determination and send it to the 17 Marshals Service that in their opinion this CSO is 18 fit for duty? 19 A Yes, FOH would make any medical 20 determination based on whatever they determine they 21 need in what time it was received. 22 Q Makes perfect sense to me. 23 Getting back to the other question, in 24 your experience, have you ever -- ever seen the 25 Marshals Service take the position that a given CSO 83 1 has not provided enough tests or within the 2 requisite time to FOH and then written the 3 contractor and told them to remove the person before 4 FOH has made a final decision? 5 MR. RECTOR: Object to the form of the 6 question. 7 THE WITNESS: If the scenario is FOH has 8 some things and they tell the Marshals Service, hey, 9 we're reviewing this, it came in a little bit late 10 but we're looking at it, would the Marshals Service 11 say, no, just stop, it was late, we're going to 12 demand removal? Is that what -- where we're going? 13 BY MR. GRIFFIN: 14 Q That's one scenario. 15 A Okay. We would not act -- to the best of 16 my knowledge, we have never acted in a way that if 17 FOH was reviewing we would stop their review based 18 on a timeline. Again, to the best of my 19 knowledge -- 20 Q Perfect. 21 A -- I have never done that. 22 Q I've got it. I've got it. 23 And so if I'm understanding you right, 24 the FOH determines how much they need and the time 25 they need to gather it and review it? 84 1 A Yes. 2 Q Okay. Is there any obligation that you 3 know of in the pattern and practice with the vendors 4 that the vendors remove someone before FOH has 5 completed their fitness-for-duty examination? 6 MR. RECTOR: Object to the form of the 7 question. 8 THE WITNESS: We have removed people 9 pending their -- pending their review if it's of 10 such a nature that they could not serve during the 11 time while it's being reviewed. 12 BY MR. GRIFFIN: 13 Q Oh, you mean if something has come up to 14 show that they couldn't work? 15 A Right. 16 Q Okay. 17 A While that review is ongoing, it's 18 handled a couple of different ways. Sometimes 19 they're removed pending the FOH review -- 20 Q Uh-huh. Uh-huh. 21 A -- and sometimes they're -- they're 22 allowed to stay on duty while the review is being 23 conducted, but that's something FOH would tell us 24 this instance is -- is of such a degree that they 25 should not serve while we're looking at this, if Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 23 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 22 (Pages 85 to 88) 85 1 that's the question. 2 Q No, that's -- that's -- that's fair 3 enough. 4 And let me just finish with this area. 5 In terms of the information that vendors -- 6 employers like MVM can submit, if the vendor or MVM 7 submits documentation that suggests that some of the 8 tests or that some of the communications from FOH 9 appear to be erroneous or misinterpreted, is that 10 something that USMS, if it came into your office, 11 that you would submit faithfully to FOH for a 12 response? 13 A If the vendor submitted something, again, 14 the process, whether we submit it, whether they go 15 direct to FOH, I do not recall that. However, if 16 the vendor submitted something they feel is 17 relevant, it would get to FOH. We would ensure it 18 gets there. 19 Q Sure. 20 And, likewise, if a CSO has submitted to 21 the vendor a long letter from a specialist that 22 makes suggestions to FOH in terms of strengthening 23 and altering a process for fitness, that too is 24 something that, one way or the other, USMS would 25 make sure it ends up -- ends up in the hands of FOH? 86 1 A Yes. 2 Q And is there any scenario that -- and if 3 there's not, it's okay, or if you don't know, it's 4 okay. Is there any scenario where you can think of 5 any reason why a vendor would not want to forward 6 such information to you in the event of one of the 7 vendor's employer's -- employees being involved with 8 a fitness-for-duty determination by FOH? 9 A I -- if I were to put myself in the 10 vendor's place -- I can't say what a vendor of their 11 own -- managing their workforce, their employees, 12 what they may or may not want to do. 13 Q Well, excuse me for -- maybe this is 14 being too informal here as a -- as a -- as a Texan 15 here, but the CSO is at the mercy of its -- of his 16 or her employer when it comes to submitting concerns 17 and questions about a medical certification decision 18 by FOH; am I right? 19 MR. RECTOR: Objection to the form of the 20 question. 21 BY MR. GRIFFIN: 22 Q And do you know what I mean by that? 23 Since USMS doesn't deal directly with the CSO, the 24 CSO can only hope that his or her employer will 25 forward it to you when it comes to the important 87 1 work of the FOH and being able to review it; am I 2 right in saying that? 3 MR. RECTOR: Object to the form. 4 THE WITNESS: Correct, the CSO would not 5 deal directly with us. We would deal with the 6 vendor. If there is any submission, it would come 7 from the vendor. 8 BY MR. GRIFFIN: 9 Q And the way it would have to work in that 10 scenario is the employee, the CSO, would have to go 11 to his or her employer, the vendor, who then would 12 submit it to you for further transmission to FOH, if 13 I summarized that right? 14 A I believe that would be the process, yes, 15 sir. 16 Q And I thank you for answering my 17 questions. It's been nice to meet you. 18 MR. GRIFFIN: And I'll pass the witness. 19 MR. RECTOR: One brief follow-up 20 question. 21 FURTHER EXAMINATION BY COUNSEL FOR DEFENDANT 22 BY MR. RECTOR: 23 Q In Defendant's Exhibit 2, the letter from 24 August that Mr. Keneipp sent and copied your office 25 on, did you forward any information about his 88 1 concerns to the FOH after you received that letter? 2 MR. GRIFFIN: Object to the form. 3 THE WITNESS: I don't recall if I 4 forwarded this to FOH. 5 MR. RECTOR: No further questions. 6 MR. GRIFFIN: Last follow-up. 7 FURTHER EXAMINATION BY COUNSEL FOR PLAINTIFF 8 BY MR. GRIFFIN: 9 Q You've seen no record where MVM itself 10 lodged any concern or question about Mr. Keneipp's 11 recommended disqualification, correct? 12 A I don't recall of any communication to -- 13 to that effect. 14 Q Certainly, you've seen no e-mail about 15 Mr. Keneipp such as the one you saw with 16 Mr. McCracken, no e-mails from anybody at MVM going 17 to bat for Mr. Keneipp? 18 A That's correct. I -- I -- in as much as 19 I did not recall McCracken, I don't recall anything 20 with Keneipp either. 21 MR. GRIFFIN: Pass the witness. Thank 22 you. 23 FURTHER EXAMINATION BY COUNSEL FOR DEFENDANT 24 BY MR. RECTOR: 25 Q I'm going to hand you what I'll mark as Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 24 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 23 (Pages 89 to 92) 89 1 Defendant's Exhibit -- I apologize for doing this to 2 you, as we keep pretending like we're going to let 3 you out of here -- Defendant's Exhibit 3. Take a 4 minute and review. 5 (Defendant's Exhibit 3 was marked for 6 identification and is attached to the transcript.) 7 MR. RECTOR: These are multiple pages. 8 MR. GRIFFIN: Would you like me to look 9 over with him, or do you have an extra copy of that? 10 MR. RECTOR: I have just got the 11 original. 12 MR. GRIFFIN: If you'd share with me what 13 it is, I may have it. 14 MR. RECTOR: I sure will. This is -- let 15 me borrow that back. This is the -- MVM 660, an 16 e-mail from Greg Wholean to Terry Bearden at the 17 United States Marshals Service, and it attached 18 Mr. Keneipp's letter of August 23rd, 2014, and those 19 go together. 20 THE WITNESS: Oh, okay. 21 BY MR. RECTOR: 22 Q Are you familiar with that, or have you 23 ever seen that e-mail? 24 A So the e-mail, which is specifically the 25 single page Defendant's 3, no, I'm not familiar with 90 1 that. The letter, as I said before, yes, I'm 2 familiar with the letter that's -- that's attached 3 to it. 4 Q And if you'll look with me at Defendant's 5 Exhibit 3, that is addressed to Terry Bearden. 6 Did I read that correctly? 7 A Yes, sir. 8 Q And, again, you testified earlier that 9 Terry Bearden was who? 10 A Mr. Bearden was the Contracting Officer 11 at this time. 12 Q Does the e-mail to Mr. Bearden indicate 13 that both MVM and the Marshals Service are aware of 14 the complaints that Mr. Keneipp outlines in the 15 attached letter? 16 MR. GRIFFIN: Object to the form. 17 THE WITNESS: I can say it certainly 18 directs Mr. Bearden's attention to it. Whether -- 19 to say that we're aware of the problems with or 20 issues he has with the medical process... 21 BY MR. RECTOR: 22 Q But the e-mail from MVM to Mr. Bearden 23 encloses or attaches the letter that Mr. Keneipp 24 wrote; isn't that correct? 25 MR. GRIFFIN: I object to the form. 91 1 THE WITNESS: Yes, certainly. Yes, it -- 2 it appears to. 3 BY MR. RECTOR: 4 Q So in this instance, then, MVM, even 5 though Mr. Keneipp already had copied several USMS 6 divisions on the letter, nonetheless forwarded it to 7 the Marshals Service and let him know -- let them 8 know again about Mr. Keneipp's concerns; is that 9 right? 10 MR. GRIFFIN: Object to the -- object to 11 the form. 12 THE WITNESS: MVM from Gregory Whole -- 13 Gregory Wholean did send -- yes, sent this letter to 14 Mr. Bearden. 15 MR. RECTOR: Thank you. No further 16 questions. 17 MR. GRIFFIN: Thank you for your time, 18 sir. 19 MR. RECTOR: Sorry about that. 20 THE WITNESS: No. 21 THE VIDEOGRAPHER: We are now going off 22 the record. The time is 12:04. 23 (Off the video record.) 24 THE REPORTER: Can you please state your 25 transcript orders? 92 1 MR. GRIFFIN: Sure. ASCII, condensed, 2 PDF'd exhibits, and I think that will do it. 3 MR. RECTOR: Electronic and condensed. 4 (Off the record at 12:04 p.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 25 of 26 Videotaped Deposition of Philip Cornelious Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 24 (Page 93) 93 1 CERTIFICATE OF SHORTHAND REPORTER - NOTARY PUBLIC 2 I, Marney Alena Mederos, the officer 3 before whom the foregoing deposition was taken, do 4 hereby certify that the foregoing transcript is a 5 true and correct record of the testimony given; that 6 said testimony was taken by me stenographically and 7 thereafter reduced to typewriting under my 8 direction; that reading and signing was not 9 requested; and that I am neither counsel for, 10 related to, nor employed by any of the parties to 11 this case and have no interest, financial or 12 otherwise, in its outcome. 13 IN WITNESS WHEREOF, I have hereunto set my 14 hand and affixed my notarial seal this 6th day of 15 September 2016. 16 My commission expires March 31, 2018 17 Virginia Notary Number 7584458 18 19 20 21 _____________________________ 22 NOTARY PUBLIC IN AND FOR 23 THE COMMONWEALTH OF VIRGINIA 24 25 Case 4:15-cv-00565-JED-TLW Document 36-9 Filed in USDC ND/OK on 10/18/16 Page 26 of 26 Exhibit 10 Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 1 of 18 Transcript of Barbara Hayes Date: August 23, 2016 Case: Keneipp -v- MVM, Inc. Planet Depos, LLC Phone: 888-433-3767 Fax: 888-503-3767 Email: transcripts@planetdepos.com Internet: www.planetdepos.com Worldwide Court Reporting | Interpretation | Trial Services Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 2 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 1 (Pages 1 to 4) 1 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF OKLAHOMA 3 ------------------------------X 4 DAVID L. KENEIPP, : 5 Plaintiff, : 6 v. : Civil Action No. 7 MVM, INC., : 4:15-cv-00565 8 Defendant. : 9 ------------------------------X 10 11 Videotaped Deposition of 12 BARBARA HAYES 13 Alexandria, Virginia 14 Tuesday, August 23, 2016 15 12:47 p.m. 16 17 18 19 20 21 22 23 Job No.: 119164 24 Pages: 1 - 61 25 Reported by: Marney Alena Mederos, RPR, CRR 2 1 Videotaped Deposition of BARBARA HAYES, 2 held at the offices of: 3 4 CARR WORKPLACES 5 1765 Duke Street 6 Alexandria, Virginia 7 (571) 447-4300 8 9 10 11 Pursuant to Notice, before Marney Alena 12 Mederos, Registered Professional Reporter, 13 Certified Realtime Reporter, and Notary Public in 14 and for the Commonwealth of Virginia. 15 16 17 18 19 20 21 22 23 24 25 3 1 A P P E A R A N C E S 2 ON BEHALF OF THE PLAINTIFF: 3 JOHN W. GRIFFIN, JR., ESQUIRE 4 MAREK, GRIFFIN & KNAUPP 5 203 North Liberty Street 6 Victoria, Texas 77901 7 (361) 573-5500 8 9 ON BEHALF OF THE DEFENDANT: 10 JONATHAN G. RECTOR, ESQUIRE 11 LITTLER MENDELSON, P.C. 12 2001 Ross Avenue 13 Suite 1500 14 Dallas, Texas 75201 15 (214) 880-8182 16 17 18 19 20 21 22 23 24 25 4 1 A P P E A R A N C E S C O N T I N U E D 2 ON BEHALF OF THE DEPARTMENT OF JUSTICE, 3 U.S. MARSHALS SERVICE: 4 C. JOSEPH CARROLL, ESQUIRE 5 DEPARTMENT OF JUSTICE 6 U.S. MARSHALS SERVICE 7 241 18th Street South 8 Arlington, Virginia 22202 9 (202) 307-9054 10 11 12 ALSO PRESENT: 13 CHRISTOPHER McHALE, MVM, INC. 14 LAUREN JACKSON, VIDEOGRAPHER 15 16 17 18 19 20 21 22 23 24 25 Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 3 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 2 (Pages 5 to 8) 5 1 C O N T E N T S 2 EXAMINATION OF BARBARA HAYES: PAGE 3 By Mr. Griffin 7 4 By Mr. Rector 26 5 By Mr. Griffin 52 6 By Mr. Rector 56 7 By Mr. Griffin 59 8 9 E X H I B I T S 10 (Attached to transcript) 11 DEFENDANT'S DEPOSITION EXHIBIT PAGE 12 Exhibit 4 Report of Investigation 28 13 14 15 16 17 18 19 20 21 22 23 24 25 6 1 P R O C E E D I N G S 2 THE VIDEOGRAPHER: We are on the record 3 at 12:47 on August 23rd, 2016. This is the 4 videotaped deposition of Barbara Hayes in the matter 5 of Keneipp v. MVA -- MVM, Inc., in the United States 6 District Court, Northern District of Oklahoma, Civil 7 Action Number 4:15-cv-00565. 8 This deposition is taking place at 9 1765 Duke Street, Alexandria, Virginia 22314. The 10 videographer is Lauren Jackson, and the court 11 reporter is Marney Mederos, both presenting on 12 behalf of Planet Depos. 13 Will counsel please introduce yourselves. 14 MR. GRIFFIN: Good afternoon. My name is 15 John Griffin, and I represent David Keneipp. 16 MR. RECTOR: My name is Jonathan Rector, 17 and I represent Defendant MVM, Inc., and I am joined 18 by Christopher McHale, counsel for MVM, Inc. 19 MR. CARROLL: I'm Joe Carroll. I 20 represent the United States Marshals Service, 21 Department of Justice. 22 THE VIDEOGRAPHER: Now will the court 23 reporter please swear in the witness. 24 THE REPORTER: Raise your right hand, 25 please. 7 1 THE WITNESS: Uh-huh. 2 Whereupon, 3 BARBARA HAYES 4 being first duly sworn or affirmed to testify to the 5 truth, the whole truth, and nothing but the truth, 6 was examined and testified as follows: 7 EXAMINATION BY COUNSEL FOR PLAINTIFF 8 BY MR. GRIFFIN: 9 Q Good afternoon. Would you please 10 introduce yourself? 11 A I am Barbara Hayes. 12 Q And tell us what you do for a living. 13 A I am an occupational health nurse for the 14 U.S. Marshals Service on the CSO program. 15 Q Well, great. 16 I will be asking you several questions 17 this afternoon, as well as my colleague across the 18 table. And before we get started, I'd like to sort 19 of have some ground rules for us so we can 20 communicate a little better. 21 The first question I'd ask you: If I ask 22 a question that seems unintelligible or convoluted 23 in any way, will you let me know that? 24 A Yes. 25 Q Sounds great. 8 1 And the second commitment I'll ask of 2 you, and I'll try to observe it as well, since these 3 two people on my left and right are taking down what 4 we're saying, if we talk at the same time, they will 5 first glare at us and then use their elbows to let 6 us know that we're not doing what they want us to. 7 So I'll endeavor to let you finish your 8 answers before I begin my next question and ask if, 9 by the same token, you'd let me finish my entire 10 question even if you know where I'm going so that 11 these two folks can get down what we're saying. 12 Is that also all right with you? 13 A Yes. 14 Q Tell us a little bit about your 15 background. Where were you born and raised? 16 A I was in born in New York, in Brooklyn, 17 New York, and I was raised on Long Island in 18 Freeport. 19 And I went to nursing school. I went 20 to -- through a three-year hospital-based nursing 21 school in Brooklyn, Jewish Hospital and Medical 22 Center of Brooklyn. 23 Q All right. And how long have you worked 24 for the USMS? 25 A As an FTE, I've been here since Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 4 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 3 (Pages 9 to 12) 9 1 October 2012. 2 Q And what is an FTE? 3 A Full-time employee. 4 Q Okay. Did you say two -- 2012? 5 A Yes. 6 Q And where were you employed before that? 7 A I was employed directly before that -- 8 from 2009 to October 2012, I was with the U.S. State 9 Department, Medical Clearances. 10 Q All right. And what is your job title 11 with the Marshals Service as we sit here today? 12 A Occupational health nurse. 13 Q And what was your title when you started 14 in 2012? 15 A Occupational health nurse. 16 Q And tell us a little bit about that job. 17 A I am the go-between person between the 18 contractors, FOH, and the Marshals Service. Pretty 19 much, I just keep an eye on the -- any documents 20 that come through, we don't review them, but we send 21 them on to FOH, but basically for tracking purposes. 22 Q No problem. 23 And since -- I'll try to make this a 24 little brief. Since we had Mr. Cornelious this 25 morning, tell me if I -- if we understand this 10 1 process right. When it comes to the 2 fitness-for-duty process, the contractor will hire 3 physicians to conduct an examination, and then the 4 results of that examination the USMS will act as a 5 conduit to ensure that it ends up in the hands of 6 FOH and its contract physicians? 7 A That's correct. 8 Q Okay. So if I overstate this, let me 9 know, but your role is to expedite as best you can 10 to make sure the infor -- that the information gets 11 to FOH when it's delivered to you from the 12 contractors? 13 A Correct. 14 Q Okay. And MVM is one of those 15 contractors? 16 A Correct. 17 Q And so for the CSOs that are MVM's 18 employees, MVM will submit information to the USMS, 19 and you will help expedite that and make sure it 20 ends up in the hands of FOH? 21 A Yes. 22 Q And I'll reel off a few questions. 23 You -- well, let me ask you this: USMS does not 24 make the medical recommendations itself, does it? 25 A That's correct. 11 1 Q It delegates that to the FOH and their 2 contract physicians? 3 A That's correct. 4 Q And once the FOH makes decisions and 5 recommendations about a given CSO, they will 6 communicate that in writing with the USMS? 7 A That's correct. 8 Q Who will then communicate that to the 9 contractor? 10 A Yes. 11 Q And if the CSO needs to know, then the 12 employer, MVM, will then communicate with the CSO 13 him or herself? 14 A Yes. 15 Q Okay. And you yourself, even though you 16 are a nurse, you're not involved in making 17 recommendations of whether or not a given CSO is or 18 is not medically fit for duty? 19 A That's correct. 20 Q Okay. And I think you had said that 21 insofar as the fitness-for-duty examination process, 22 that when the contractor, MVM, submits medical 23 information about a CSO, you don't review it. 24 Instead, it is sent for FOH for review? 25 A Yes. 12 1 Q Okay. In other words, the USMS doesn't 2 make an independent evaluation of the information 3 that's submitted or of FOH's recommendations? 4 A That's correct. 5 Q Okay. Ms. Hayes, in terms of the 6 information submitted to the USMS by the employer, 7 MVM, do you have a practice of reviewing it and 8 making decisions not to send information submitted 9 to you by the contractor, such as MVM? 10 A No. 11 Q In other words, if a contractor submits 12 information about a CSO's fitness for duty, you're 13 not going to sensor it or sanitize it, but, rather, 14 you're going to send it on to FOH for their review? 15 A That's correct. 16 Q And to your knowledge, has the USMS ever 17 told contractors not to submit information that 18 would be relevant to a medical determination of a 19 given CSO's fitness for duty? 20 A Not that I'm aware of. 21 Q Okay. Let me show you what's been marked 22 as Cornelious Exhibit 1 and ask if you have ever 23 seen this letter or letters like it. 24 A Yes. 25 Q Okay. Do you see in the second paragraph Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 5 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 4 (Pages 13 to 16) 13 1 where Mr. Cornelious invites MVM to submit concerns 2 or questions about the decision? 3 A Yes. 4 Q Okay. And the decision that's being 5 referred to is the recommendation by FOH that 6 Mr. Keneipp be determined medically disqualified, 7 right? 8 A Correct. 9 Q Okay. Has there ever been any message 10 sent to MVM that it should not submit concerns, or 11 questions, or even opposition in the case of a 12 determination by FOH that a CSO is not medically 13 qualified? 14 A Not that I'm aware of. 15 Q And has -- on the other hand, has FOH 16 ever shared with the USMS that it does not want to 17 hear from others when it comes to issues or 18 questions about a given CSO's medical fitness for 19 duty? 20 A Well, I know that they have asked that 21 CSOs not call them. 22 Q I'm not talking about CSOs. 23 A Uh-huh. 24 Q Mr. Cornelious shared with us that USMS 25 deals with the contractors -- 14 1 A Yes. 2 Q -- the employer -- 3 A Yes. 4 Q -- and that -- and USMS expects the 5 employer to deal with its own employee. 6 But when an -- when an employer like MVM 7 submits information to USMS to give to FOH, has FOH 8 ever indicated opposition to or telling USMS don't 9 send us -- 10 A No. 11 Q -- the contractor's concerns? 12 A No. 13 Q Okay. And is it the practice of USMS to 14 forward to FOH documentation, issues, or opposition 15 to a proposed removal of a CSO for medical reasons? 16 A Yes. 17 Q And let me just ask it in this general 18 way. If you don't know, it's okay. But from your 19 perspective as an occupational health nurse at USMS, 20 is partial -- is one of the goals of a letter 21 inviting the contractors to submit information and 22 concern about disqualification of a CSO, is one of 23 the reasons for that to make sure that FOH has all 24 the information it can get in order to make sure 25 that the decision is a good one? 15 1 MR. RECTOR: Object to the form of the 2 question. 3 THE WITNESS: Okay. 4 MR. CARROLL: You can answer. 5 THE WITNESS: Oh, I can answer? 6 Well, I'm not really sure what you're 7 driving at. I'm not sure of the question. 8 BY MR. GRIFFIN: 9 Q If you don't know, it's okay. 10 Share with us why Phil -- Philip 11 Cornelious asked contractors to share with UMS (sic) 12 when there are issues, concerns, or questions about 13 a recommended disqualification of a CSO for medical 14 reasons. 15 A We, on occasion, do get follow-up from 16 the contractor stating that they have additional 17 information, or if we obtain additional information 18 could it be submitted to FOH for review. 19 Q Right. And my question is: Why is that 20 important? 21 A Because sometimes there may be -- there 22 may be additional information that FOH is not aware 23 of. 24 Q Sure. 25 And the goal of USMS in the whole process 16 1 is to make sure that the decisions about medical 2 fitness for duty are correct ones, right? 3 A That's correct. 4 Q And if the contractor has something to 5 add that shows there may be a misunderstanding or a 6 mistake on the part of someone, that's important 7 that USMS be able to gather that from the contractor 8 so that it can give that to FOH for further review? 9 A Yes. 10 Q And FOH has never indicated any 11 opposition to receiving such information? 12 A No. 13 Q And if you're familiar with this, let me 14 know, but are you aware, Ms. Hayes, that on occasion 15 suggestions have been made to FOH for improvements 16 in the CSO medical fitness-for-duty program, for 17 example, with diabetes? 18 A Yes. Yes, I am aware that there have 19 been some letters going back and forth. 20 Q Sure. 21 And when -- for example, when the Chief 22 Medical Officer of the American Diabetes Association 23 forwarded some suggestions to USMS, USMS then 24 forwarded that to FOH for further review? 25 A Correct. Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 6 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 5 (Pages 17 to 20) 17 1 Q Okay. And, likewise, when Dr. Richard 2 Katz, a renowned cardiologist, wrote some 3 suggestions with respect to CSOs with cardiological 4 issues, USMS, likewise, forwarded that information 5 to FOH for further review? 6 A Correct. 7 Q In other words, USMS did not make any 8 attempt to sanitize or sensor that kind of 9 information before it was sent to the FOH? 10 A Correct. 11 Q And I am thinking, since I've read a lot 12 of this material, you had no role in deciding 13 whether or not Mr. Keneipp was medically 14 disqualified or not? 15 A That's correct. 16 Q That recommendation was made by FOH? 17 A Yes. 18 Q And are you aware of any -- anything at 19 all that MVM did as a result of Phil Cornelious' 20 October 1st, 2014 letter inviting MVM to express any 21 concerns or questions about it? 22 A Not that I remember. 23 Q Okay. Had they -- had MVM submitted 24 documentation from physicians that showed, for 25 example, that he was able to run and that the 18 1 personal physician had determined that he had normal 2 ambulation skill, that would have been the type of 3 information that you would have forwarded to FOH for 4 further review? 5 MR. RECTOR: Object to the form of the 6 question. 7 MR. CARROLL: You can answer. 8 THE WITNESS: Okay. 9 MR. RECTOR: Sorry. 10 THE WITNESS: Now I forgot the question. 11 I'm sorry. 12 MR. CARROLL: For all of his -- for all 13 of his objections, you can answer unless I direct 14 you not to. 15 THE WITNESS: Oh, okay. Okay. I'm 16 sorry. 17 MR. GRIFFIN: You don't have to listen to 18 either one of us. 19 MR. RECTOR: No one listens to me anyway. 20 MR. GRIFFIN: I'm sure that's not true. 21 BY MR. GRIFFIN: 22 Q Had MVM here submitted paperwork to you 23 in response to this letter, paperwork that suggested 24 that Mr. Keneipp had normal ambulation skill and did 25 not have any contraindications from running, that 19 1 was the sort of information that you would have 2 forwarded to FOH to let them review it? 3 MR. RECTOR: Same objection. 4 THE WITNESS: Yes. 5 BY MR. GRIFFIN: 6 Q Okay. But to your recollection and 7 knowledge, no such document -- documentation was 8 submitted to you by MVM after the letter 9 Mr. Cornelious had written to them on October the 10 1st, 2014? 11 A I don't recall getting any further 12 information. 13 Q And let me ask you a few questions about 14 this. Are you involved in any way with the 15 negotiation between the two parties of the contract 16 between the USMS and MVM? 17 A No. 18 Q And do you know whether MVM or the USMS 19 negotiates, makes counteroffers, submits language, 20 or which language comes from whom in this contract? 21 A I -- I have nothing to do with that. 22 Q Fair enough. 23 And in your defense, have you ever read 24 the contract between MVM and the USMS from cover to 25 cover? 20 1 A No. 2 Q Okay. All right. And insofar as FOH is 3 concerned -- and if you don't know this, it's 4 okay -- does FOH make the final decision on what 5 information that it will accept and won't accept 6 when it comes to making a decision on whether to 7 medically recommend qualification or medical 8 disqualification? Do they decide what they need in 9 order to make -- 10 A Yes. 11 Q -- that decision? 12 A Yeah. Uh-huh. 13 Q Okay. And when they get incomplete 14 information, is it FOH that determines whether they 15 have enough to make a decision or not -- 16 A Yes. 17 Q -- as opposed to the Marshals Service? 18 A Yes. 19 Q Okay. And is it the FOH who determines 20 how long they're willing to wait for the information 21 before issuing a recommendation in writing one way 22 or the other? 23 A For the most part, yes. 24 Q Okay. In other words, USMS delegates to 25 FOH that function instead of doing it itself? Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 7 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 6 (Pages 21 to 24) 21 1 A Yes. 2 Q Okay. And, likewise, if FOH sees a red 3 flag that suggests that a person ought to be 4 suspended or removed temporarily from the contract 5 during the fitness-for-duty process, that's 6 something also FOH will occasionally do if the -- if 7 the alleged impairment is a serious one? 8 A Correct. 9 Q Other times, as I understand it, FOH will 10 ask for information but not recommend that they be 11 removed from the contract until a final 12 determination is made by FOH? 13 A That's correct. 14 Q Do you know of any procedure or document 15 that would give a contractor the idea that it's all 16 right to withhold medical information about a CSO 17 from FOH? 18 A Could you phrase that question again? 19 Q Sure. 20 For example, when the package comes into 21 the USMS or comes into the employer or the 22 contractor -- as I understand it, the CSO is the 23 employee of MVM? 24 A Yes. 25 Q MVM has a contract with the Marshals 22 1 Service? 2 A Yes. 3 Q And the Marshals Service has a contract 4 with FOH? 5 A Yes. 6 Q And FOH has a contract with some 7 physicians to review these fitness-for-duty papers? 8 A Yes. 9 Q Okay. So in the event that the -- is it 10 the responsibility of the contractor to forward to 11 USMS the medically-relevant medical documents about 12 the CSO so that the USMS can forward it to FOH? 13 A Yes. 14 Q When FOH asks for documents and the 15 contractor gathers those documents, is there any 16 justification you know of for the contractor to 17 withhold those documents from USMS? 18 A Not that I know of. 19 Q Okay. And in terms of the underlying -- 20 well, let me ask you this: I've got nurses in my 21 family and doctors in my family, so I've got to 22 watch how I talk about doctors and nurses because I 23 love them both, okay? 24 But even though you may have some 25 expertise in nursing -- I know you do -- in terms of 23 1 your role at US -- at USMS, do you view your role as 2 second-guessing, critiquing, or otherwise casting 3 any judgment on what FOH decides in a given case? 4 A No. 5 Q All right. And so when -- for example, 6 in this case when -- you may or may not have even 7 noticed the reason why Dr. Goldhagen would say that 8 Mr. Keneipp's personal doctor said that CSO's back 9 pain precluded his ability to run. As I understand 10 it, that's something you may or may not have even 11 reviewed? 12 A It's possible. But if I did the letter 13 for a chief or an acting chief's or assistant 14 chief's signature, I usually read it, but I don't 15 critique it. That's not my job. That's not my job. 16 Q That's what I was getting at. It's not 17 your job -- 18 A No. 19 Q -- to second-guess or quarrel with 20 anything that Dr. Goldhagen said in the letter that 21 was attached to the disqualification recommendation? 22 A That's correct. 23 Q All right. And as the sort of 24 clearinghouse between the contractor, MVM, and FOH, 25 you did view it as your job to communicate these 24 1 documents back and forth? 2 A Yes. 3 Q You just didn't weigh in with your own 4 opinion or your own judgment on it? 5 A No. 6 Q That would be up to the contractor itself 7 to weigh in with information to be submitted to 8 FOH -- 9 A Yes. 10 Q -- is that right? 11 MR. RECTOR: Object to the form of the 12 question. 13 BY MR. GRIFFIN: 14 Q And, likewise, if FOH wants more 15 information or desires to communicate further with 16 the contractor, they can go through you, and you 17 would be glad to relay it to the contractor? 18 A Yes. 19 Q Okay. And forgive me if I asked you this 20 before, but as I understand what you shared before, 21 contractors do occasionally avail themselves of the 22 opportunity to submit further information or request 23 clarification when it comes to a CSO being adjudged 24 to be medically disqualified by FOH? 25 A That's correct. Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 8 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 7 (Pages 25 to 28) 25 1 MR. RECTOR: Object to the form of the 2 question. 3 MR. GRIFFIN: And -- 4 THE WITNESS: Sorry. 5 MR. RECTOR: You're fine. 6 BY MR. GRIFFIN: 7 Q And if I asked you this, I apologize. 8 Has anyone communicated to MVM, to your knowledge, 9 that it should not raise concerns or discrepancies 10 when it receives a letter such as Cornelious 11 Exhibit 1? 12 A Not that I'm aware of. 13 Q Given the -- who -- who -- the parties 14 who have these medical records, who is in the best 15 position to alert the USMS to a discrepancy or a 16 concern with respect to FOH review of a given CSO's 17 medical fitness for duty? 18 MR. RECTOR: Object to the form of the 19 question. 20 THE WITNESS: It would be whoever the -- 21 you know, our contact at the respective contractor 22 is. 23 BY MR. GRIFFIN: 24 Q Okay. In Mr. Keneipp's case, that would 25 be MVM? 26 1 A Yes. 2 Q Okay. 3 A Right. 4 MR. GRIFFIN: I'll pass the witness at 5 this time. 6 Thank you very much. 7 EXAMINATION BY COUNSEL FOR DEFENDANT 8 BY MR. RECTOR: 9 Q Ms. Hayes, thank you. I just have a few 10 questions, although -- 11 A Sure. 12 Q -- we will try to keep you past your 13 meeting -- 14 A Okay. 15 Q -- if we can. 16 MR. GRIFFIN: Drats. 17 THE WITNESS: Can I stay, please? 18 MR. CARROLL: We can have a meeting after 19 the -- 20 MR. RECTOR: That's right. 21 MR. CARROLL: -- deposition. 22 BY MR. RECTOR: 23 Q Going back to a couple things you 24 discussed with my colleague, Mr. Griffin, before MVM 25 can select a physician to conduct medical 27 1 examinations, does that physician have to be 2 approved by the Marshals Service? 3 A No. 4 Q Does it have to be approved by FOH? 5 A No, no longer. I mean, years ago, they 6 were. 7 Q In October of 2014, in Mr. Keneipp's 8 case -- 9 A No. 10 Q -- were physicians being approved? 11 A Not by the Marshals Service or by FOH. 12 It was up to the contractor. 13 Q I'm going to direct your attention to 14 Defendant's Exhibit 1. And if you would turn with 15 me to Section C.9 of the contract, which will be -- 16 if you see, there's some little numbers at the 17 bottom -- 18 A Uh-huh. 19 Q -- right of the page? 20 A Right. 21 Q We will be going to MVM 000 -- I'll get 22 there. Start on 121. 23 A 121. 24 Q Are you there? 25 A Yep. Uh-huh. 28 1 Q Okay. C.9, "Physical and Medical 2 Standards" is written up at the top of this. 3 Did I read that correctly? 4 A Yes. 5 Q Are you familiar with the language 6 generally in C.9? 7 A Pretty much. 8 Q Do you have an understanding or can you 9 testify about the development or the implementation 10 or what brought about the physical and medical 11 standards that are in this and other contracts that 12 the Marshals Service has with -- or to provide CSOs? 13 A It precedes my time with the Marshals 14 Service. 15 Q Do you recall being interviewed as a part 16 of a Department of Justice EEO investigation into 17 discrimination claims by Mr. Keneipp? 18 A I believe I had an interrogatory, yes. 19 Q Do you recall that interrogatory? 20 A Yes. Yeah. Uh-huh. 21 Q I'm going to hand you what I'll mark as 22 Defendant's Exhibit 4. 23 (Defendant's Exhibit 4 was marked for 24 identification and is attached to the transcript.) 25 MR. RECTOR: And, Mr. Griffin, I have a Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 9 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 8 (Pages 29 to 32) 29 1 copy for you. 2 MR. GRIFFIN: Thank you very much. 3 BY MR. RECTOR: 4 Q Your interrogatory begins on -- if you go 5 to the bottom, it's a little bit obscured -- Keneipp 6 000153, I believe. It's Exhibit 9 to this document. 7 A Am I going in the right direction? 8 MR. CARROLL: It's Exhibit 7. 9 THE WITNESS: Okay. 10 BY MR. RECTOR: 11 Q And for identification purposes, this is 12 the complete Marshals Service Report of 13 Investigation. 14 A Okay. Uh-huh. 15 Q Okay. Will you do me a favor and take 16 the next two or three minutes to look at all of 17 Exhibit 9, which will be Keneipp 153 through 159, 18 and let me know when you're done? 19 A Okay. Sorry, I'm a slow reader. 20 Q No, that's fine. 21 A Okay. 22 Q And if this looks like the one that you 23 submitted -- and, please, if you want to read the 24 whole thing, take all your time, but if it looks 25 substantially -- 30 1 A Yeah. No, this looks like what I wrote. 2 Q Okay. 3 A Yeah. Uh-huh. 4 Q Any part that you see that not -- would 5 have not been included in what you wrote as a part 6 of your response to this interrogatory? 7 A No. Huh-uh. 8 Q If I go to page Keneipp 000159, is that 9 your signature with the date of 5/7/2015 at the 10 bottom? 11 A Yes. 12 Q I'm going to direct your attention to 13 Question 6 of the interrogatory, which is back on 14 page 154. The question asks, "For the record, 15 please explain how and why the USMS developed their 16 medical standards for the CSO program." 17 And I would just ask you to explain that 18 here. How and why did the Marshals Service develop 19 the medical standards that are in Defendant's 20 Exhibit 1? 21 A Well, it is my understanding that at some 22 point, I believe it was in the 1990's time frame, 23 there were concerns expressed by the Judiciary as to 24 the fitness of CSOs, the ability to perform CSO 25 functions. 31 1 And at that point in time -- I believe 2 they always had a medical. There were -- they 3 always had to have a medical done, but I don't 4 believe there was any official review of the 5 medical, so they instituted -- they did a job task 6 analysis and instituted the medical requirements in 7 2000, and that was the AOUSC, Marshals Service. 8 Q And when you say AOUSC, that is the 9 Administrative Office of the U.S. Courts? 10 A That's correct. 11 Q Okay. And then, as in your response, the 12 Judicial Committee for the Marshals Service, or is 13 that for just the Judiciary? 14 A That was the Judiciary. That's my 15 understanding, because I was not there at that time. 16 Q Understood. 17 So those three entities, the 18 Administrative Office of the U.S. Courts, the 19 Judicial Committee, and the USMS, together they're 20 the ones who developed the medical standards that 21 are before you in Defendant's Exhibit 1? 22 A They -- well, they -- as far as I 23 understand, they were -- they were -- they had a job 24 task analysis done in 1999, and out of that job task 25 analysis, that's how the medical requirements came 32 1 into being. 2 Q So these have been, then, the medical 3 standards in Defendant's Exhibit 1, in place since 4 2000? Does that sound about right? 5 A That's -- that's my general 6 understanding, yes. 7 Q Are vendors with whom the USMS enters 8 into contracts allowed to bargain for, or remove, or 9 change, or alter any of the medical or -- well, 10 medical standards or qualifications in this section? 11 A As far as I know, no, but I think that's 12 really a contracts -- that may be a contracts 13 question. 14 Q You testified a moment ago in response to 15 a question from Mr. Griffin that you are aware 16 vendors in the past have availed themselves of the 17 opportunity to submit questions or concerns in 18 response to a medical disqualification letter; is 19 that right? 20 A Yes. 21 Q If I go to page -- well, your response, 22 essentially, to Question 8, which is on 155, the 23 question asks, "If a CSO is declared medically unfit 24 for duty, does the CSO have any recourse? If yes, 25 what are the CSO's options?" Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 10 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 9 (Pages 33 to 36) 33 1 Did I read that correctly? 2 A Yes. 3 Q So first let me ask you, does the 4 Marshals Service retain the absolute right to demand 5 that a CSO be removed from performing under the 6 contract? 7 MR. GRIFFIN: Object to form. 8 THE WITNESS: Could you rephrase that 9 question? 10 BY MR. RECTOR: 11 Q If the USMS, the Marshals Service, sends 12 a letter to a vendor saying there -- there's been a 13 medical determination that this CSO does not meet 14 the medical qualifications, you must remove him from 15 performing under the contract, does the vendor have 16 to comply? 17 A With the letter, yes. 18 Q In other words, they have to remove the 19 CSO? 20 A Well, we tell them they are no longer 21 allowed to work under the contract, the CSO 22 contract -- 23 Q And that is -- 24 A -- that they do not meet the standards. 25 Q And this is my fault. I do this. If 34 1 I -- if I start talking over you, I'm going to do my 2 best to stop, because we will get dirty looks from 3 everybody here that's trying to take notes. 4 So Question 8, then, asks what are the 5 CSO's options if he's declared medically unfit. 6 What are the CSO's options? 7 A Well, we don't have a -- there's not a 8 formal appeals process in the contract, but if 9 the -- we have always told the vendors, the 10 contractors that if additional information does come 11 in to submit it to us and we'll get it to FOH, and, 12 as a matter of fact, we just did that recently with 13 somebody for MVM too, so... 14 Q When you say we always tell the vendors, 15 is that in the form of a standard communication, 16 e-mail, phone conversations, or what? 17 A Well, if they -- if they question. If 18 they call or they e-mail and say, look, you know, 19 we -- I just heard from the CSO or we just received 20 additional information, we'll say send it and we'll 21 get it down to FOH. 22 Q Did you -- before this deposition, did 23 you visit with anyone other than your attorney, 24 Mr. Carroll, to prepare for this? 25 A No. 35 1 Q Did you review any documents? 2 A The only thing I looked at was my 3 interrogatory. 4 Q Both in preparing for this deposition 5 today and in responding to the interrogatory for the 6 Department of Justice's discrimination 7 investigation, do you recall whether there was any 8 allegation or any suggestion that MVM had not 9 submitted all medical records that it had at its 10 disposal to the FOH for the FOH's review? 11 A Not that I'm aware of. 12 Q Are you aware of any medical documents 13 that were not, in fact, submitted to the FOH that 14 MVM had in its possession in Mr. Keneipp's case? 15 A Not that I'm aware of. 16 Q Are you aware of any documents whatsoever 17 that you found during both your preparation to 18 answer this interrogatory and today that could have 19 or should have been submitted to the FOH but was 20 not? 21 MR. GRIFFIN: Object to the form. 22 THE WITNESS: Not that I'm aware of. 23 BY MR. RECTOR: 24 Q Just to go back and clear up something 25 that I started on and jumped around -- and I do 36 1 that, I'm so sorry -- I asked you if the USMS had 2 any approval process for physicians that were 3 selected by MVM. 4 Do you recall that? 5 A Yes. 6 Q Does the Marshals Service have the right 7 to disqualify physicians that MVM or any other 8 vendor selects? 9 A On occasion, we've been asked by FOH to 10 notify a vendor if there were certain aspects of -- 11 exams that they noted trends in certain clinics 12 that -- where the hearing wasn't being done 13 correctly, but we don't -- I mean, we don't make 14 that judgment. We would rely on information from 15 FOH. 16 Q I'll direct your attention back to 17 Defendant's Exhibit 1, and we're still in Section C. 18 On page 123 at the bottom, MVM 00123, up at the top 19 is Section C.9.2.5. 20 A Uh-huh. 21 Q My reading of this is that the Marshals 22 Service does retain the absolute right to disqualify 23 physicians under certain circumstances. 24 Is that your understanding of this 25 provision? Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 11 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 10 (Pages 37 to 40) 37 1 A Yes, but we would not do it on our own. 2 I mean, we would have to -- we would get that 3 information from FOH. We wouldn't just say a doctor 4 couldn't... 5 Q Understood. 6 Going back to other vendors availing 7 themselves of the right to submit questions or 8 concerns in response to a medical disqualification 9 letter, we were talking about the options a CSO has. 10 One was additional medical information. 11 Anything else that a CSO could do? 12 MR. GRIFFIN: Object to the form. 13 THE WITNESS: Basically, provide 14 additional medical information. It would have to be 15 something that FOH would be able to review from a 16 medical standpoint. 17 BY MR. RECTOR: 18 Q Are you aware of whether MVM does an 19 independent review of medical records that it 20 receives for transmission to the FOH? 21 A I don't -- I'm not aware. They may, but 22 I'm not aware. 23 Q Other than additional medical 24 information, anything else? And the question -- 25 A I'm not sure. 38 1 Q -- I'll refresh your memory -- is 2 Question 8, "If a CSO is declared medically unfit 3 for duty, does the CSO have any recourse? If yes, 4 what are the CSO's options?" 5 A It would have to be medical information. 6 I mean, I would... 7 Q Any -- anything else that you can think 8 of other than additional medical information? 9 A Well, I mean, if -- it would have to be 10 information related to the disqualifying condition. 11 Q And you testified earlier that there is 12 no formal appeals process that either a CSO or a 13 vendor can view to utilize? 14 A That's correct. 15 Q Is a -- is a vendor allowed to 16 disagree -- well, let me -- let me ask this a 17 different way, and I apologize if I did already ask 18 this. 19 If a -- if a vendor receives a medical 20 disqualification letter and it says CSO-Whoever must 21 be removed from performing under the contract, does 22 the vendor have the option of not complying with 23 that directive? 24 MR. GRIFFIN: Object to the form. 25 THE WITNESS: I -- I believe they have to 39 1 remove them. 2 BY MR. RECTOR: 3 Q And if they remove them -- in your 4 response to Question 8, you write, If the Marshals 5 Service has an opening available, the vendor can 6 send the CSO's application forward for review. 7 And before that, you say, "Additionally, 8 a vendor can always re-submit a former medically 9 disqualified CSO's application for consideration on 10 a USMS contract." 11 Did I read that correctly? 12 A Yes. 13 Q My understanding is that if a CSO is 14 determined to be medically disqualified and asked to 15 be removed from the contract that they no longer can 16 work on that same USMS contract. 17 Do I have that right? 18 MR. GRIFFIN: Object to form. 19 THE WITNESS: That's correct. 20 BY MR. RECTOR: 21 Q So in that instance, a vendor would not 22 be able to submit another application for that same 23 CSO? 24 A After -- the -- the -- the contractor has 25 30 days in which to submit an applicant package for 40 1 a vacancy, and if -- prior to that 30 days if a CSO 2 who was medically disqualified comes back and says I 3 have additional medical information, we will, of 4 course, send it down to FOH for review. 5 Q Once that 30 days expires, is it then too 6 late for a CSO to submit additional medical 7 information? 8 MR. GRIFFIN: Objection to form. 9 THE WITNESS: Well, it is in the sense 10 that they would have to send an applicant package 11 with that. 12 BY MR. RECTOR: 13 Q What is the average, if you will, length 14 of time it takes for a new applicant to go through 15 the medical approval process and then be, I guess, 16 approved by the Marshals Service for a contract? 17 A I believe now it's probably under six 18 months. 19 Q In 2014, what do you think it would have 20 been? 21 A It was -- it was probably around the -- 22 the -- the same. We -- since I think it was 2015, 23 it might have been late 2014, we've actually asked 24 FOH when they do their first review of the exam to 25 also look at it from an interim approval process Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 12 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 11 (Pages 41 to 44) 41 1 also, could this person start working before 2 they're -- they're deemed medically qualified -- 3 Q But that is not something -- 4 A -- so... 5 Q -- that's presently in effect? 6 A Well, it is. It -- we -- we ask that 7 they review all applicants like that. So the -- the 8 time frame has narrowed quite a bit for us to get -- 9 and they're also -- I would say it's probably six 10 months or under that it takes to get an applicant 11 medically qualified. And sometimes that depends 12 also on how much information the -- the applicant 13 provides, how much medical information the applicant 14 provides. 15 Q Sorry, I'm just getting my thoughts 16 together. 17 So other than medical documentation that 18 we just discussed and this reapplication process, 19 any other recourse that a CSO has when they are 20 determined medically disqualified by the FOH? 21 A By the FOH? 22 Q The FOH is the only one who makes those 23 determinations, correct? 24 A Right, so the information would 25 have to -- they would need additional information. 42 1 Q Does the Marshals Service employ any 2 physicians that independently reviews medical 3 records to determine fitness for duty for CSOs? 4 A No. 5 Q Who employs the FOH, or who is the agency 6 responsible for designating the FOH -- 7 A They are -- 8 Q -- doctor? 9 A They're under the U.S. Public Health 10 Service. 11 Q That would be the Department of Health -- 12 A Yes. 13 Q -- and Human Services? 14 A Health and Human Services, correct. 15 Q If a CSO is determined medically 16 disqualified by the FOH and the Marshals Service 17 then asks that that CSO be removed, could that CSO 18 work on any other contract that the vendor might 19 have with the Marshals Service? 20 A That's really up to the -- to the 21 contractor. Sure, I mean, if the contractor has 22 other contracts other than the CSO contract and -- 23 Q And I'm speaking specifically of 24 contracts to provide Court Security Officers to the 25 Federal Judiciary. 43 1 In other words, if FOH reviews a CSO's 2 medical information and determines him medically 3 disqualified, then the Marshals Service says you 4 must remove them from performing under this contract 5 that you have to provide CSOs to the 10th Circuit, 6 could a vendor then go attempt to put that same 7 medically-disqualified CSO on a contract to work as 8 a CSO for the 2nd Circuit? 9 A No. 10 MR. GRIFFIN: Object to the form. 11 BY MR. RECTOR: 12 Q That was a really long question, so thank 13 you. I think you followed me. 14 A Yes, I did. I did. 15 Q Are you familiar with Dr. Goldhagen? 16 A Yes. 17 Q And who is Dr. Goldhagen? 18 A She is the primary reviewing medical 19 officer at FOH for the JSD contract. 20 Q And when you say "JSD," that's Judicial 21 Securities Division? 22 A Yes, yes. 23 Q Is she still the primary physician? 24 A Yes. 25 Q Anything in this interrogatory that is 44 1 inaccurate or that you would want to change now that 2 you're here in a deposition? 3 A I -- I don't think so. I don't think so. 4 Q Did Mr. Keneipp believe that the Marshals 5 Service was responsible for his termination? 6 MR. GRIFFIN: Objection to the form. 7 BY MR. RECTOR: 8 Q Are you aware? 9 MR. GRIFFIN: Object to the form. 10 BY MR. RECTOR: 11 Q Go ahead. Answer the question. 12 A I don't know, I mean, other than the 13 interrogatory statement that was made in the 14 beginning of the interrogatory. 15 Q And I think we established earlier that 16 there's no way that a CSO can be reinstated on a 17 contract with the Marshals Service to provide court 18 security if they've been medically disqualified, 19 right? 20 MR. GRIFFIN: Object to the form. 21 THE WITNESS: If they reapply or supply 22 information that deems them medically qualified, and 23 we've had that happen in the past. 24 BY MR. RECTOR: 25 Q But that is a process that takes, in your Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 13 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 12 (Pages 45 to 48) 45 1 words, at least six months? 2 A No, not necessarily. Not if -- not if 3 they were already -- if they had been previously 4 working for the Marshals Service on the CSO program, 5 it could be very -- it could be very quick. 6 Q How quick is "quick"? 7 A Well, for somebody who provides the 8 information within that first 30 days, I mean, we 9 have had -- we've had turnaround of less than two or 10 three days once we get the information down to FOH. 11 Q And if it's past that 30-day window? 12 A If it's past that 30-day window, the -- 13 if -- if they do not need a background, I mean, 14 their background now -- it's my understanding that 15 the background actually takes longer than the 16 medical qualification process. 17 So if their background is up-to-date, and 18 once we get the medical information, we send it down 19 to FOH, we can probably have them back to work in 20 under 30 days. 21 Q Are you aware -- are you aware of any 22 documents that MVM could have submitted on 23 Mr. Keneipp's behalf to change the FOH's 24 determination? 25 A No. 46 1 MR. GRIFFIN: Object to the form. 2 BY MR. RECTOR: 3 Q Are you aware of any actions that MVM 4 could have done on Mr. Keneipp's behalf to 5 change the FOH's determination? 6 A Not that I'm aware of. 7 MR. GRIFFIN: Object to form. 8 THE WITNESS: Sorry. 9 MR. GRIFFIN: I'm getting in there as 10 fast as I can. 11 THE WITNESS: I'll wait to answer. 12 MR. GRIFFIN: No, you're fine. 13 THE WITNESS: Give me the flag. 14 BY MR. RECTOR: 15 Q Are you familiar with Mr. Philip 16 Cornelious? 17 A Yes. 18 Q Who is Mr. Cornelious? 19 A Mr. Cornelious is one of the assistant 20 chiefs in JSD. 21 Q Would he be your supervisor or in that 22 line of supervisory hierarchy? 23 A At the -- at the time, I believe, that 24 that was signed, I believe he was acting. He may 25 have been the acting chief at that point in time -- 47 1 the acting assistant chief. I take that back. 2 Q Are you aware that Mr. Keneipp, prior to 3 his removal from the contract, had sent a letter to 4 the Marshals Service and various other entities 5 complaining about the medical examination process? 6 A Not that I recall. 7 Q Are you aware of whether anyone from MVM 8 discussed or had conversations with the Marshals 9 Service about concerns Mr. Keneipp had about the 10 medical examination qualifications? 11 A Not that I am aware of. I mean, not... 12 Q Would you have any reason to be aware of 13 those conversations? 14 A No. Unless it was medical information 15 coming in, I would... 16 Q Are you aware of how many contracts 17 presently the Marshals Service has with vendors to 18 provide Court Security Officers? 19 A I believe we have five different 20 contractors. 21 Q Would those five contractors be covering 22 multiple areas and, therefore, different contracts? 23 In other words, could one contractor have, you know, 24 a contract with the 10th Circuit and also the 25 2nd Circuit and that would be two different 48 1 contracts? 2 A Yes. 3 Q But you think five contractors in total? 4 A Yes. 5 Q Does that sound about right for 2014 as 6 well? 7 A I believe so, yes. 8 Q Going back to the Defendant's Exhibit 1, 9 Section C.9 of the contract, is -- are -- the 10 medical qualification standards in this contract, 11 would they be the same for providing CSOs for every 12 other contractor? 13 A They should be. 14 Q And, again, would a contractor be allowed 15 to change that language or propose revisions to that 16 language? 17 MR. GRIFFIN: Object to the form. 18 THE WITNESS: No, unless they went 19 through contracts, I would think. 20 MR. GRIFFIN: Beg your pardon? 21 THE WITNESS: Unless they go through 22 contracts. 23 MR. GRIFFIN: Oh, gotcha. Thank you. 24 MR. RECTOR: Just one moment. 25 BY MR. RECTOR: Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 14 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 13 (Pages 49 to 52) 49 1 Q If you would, in Defendant's Exhibit 4, 2 go to page Keneipp 000167. 3 Yes, that (indicating). 4 And it's Exhibit 12. 5 A Uh-huh. 6 Q Go to that page. 7 A Yes. 8 Q Up at the top, this is an e-mail. It 9 appears to be from Barbara Hayes. 10 Is that you? 11 A Yes, that's me. 12 Q So is this an e-mail that you sent to 13 Ms. Naman -- Veronica Naman at MVM informing her 14 that the FOH determined that Mr. Keneipp did not 15 meet the medical qualifications? 16 A That's correct. 17 Q Did you provide her with any information 18 about appealing that determination? 19 A No. 20 Q Did you, similar to Mr. Cornelious, have 21 any conversations with Ms. Naman inviting her to 22 submit questions or concerns about the 23 determination? 24 A Not that I recall. 25 Q Why not? 50 1 A I'm sorry? 2 Q Why not? 3 A Why not? 4 Q In other words, would it have mattered? 5 A I mean, this is just our standard 6 practice. This was -- this was part of the SOP. We 7 send the letter, we send the e-mail, and we send the 8 Medical Review Form. 9 Q I understand. 10 So this language in this e-mail, is this 11 a -- is this form language? 12 A It's templated, yes. 13 Q Including the documents that are 14 attached? 15 A The letter would be, and the Medical 16 Review Form, of course, is going to be different for 17 each individual. 18 Q And this template is found in a Standard 19 Operating Procedure book, I'm assuming? 20 A It's an SOP that we wrote years ago. 21 Q And this template in the SOP doesn't 22 provide any information or any language that would 23 allow a contractor to appeal or submit questions or 24 concerns or anything like that, correct? 25 MR. GRIFFIN: Object to the form. 51 1 THE WITNESS: No. 2 BY MR. RECTOR: 3 Q And the back of this document, 4 Keneipp 168, is that the Medical Review Form from 5 FOH? 6 A Correct. 7 Q Up at the top, it says, "Your status is: 8 Not medically qualified to perform the essential 9 functions of the job." 10 Did I read that correctly? 11 A Yes. 12 Q Who establishes the essential functions 13 of the CSO position, if you know? 14 A It's my understanding, I mean, that they 15 are -- they are in the medical requirements that 16 were issued after the job task analysis was done. 17 Q So that would be, then, the same three 18 agencies we identified earlier: The Administrative 19 Office of the Courts, the FOH, and the Marshals 20 Service? 21 A Yes. 22 Q They would be the ones responsible for 23 developing the essential functions of the CSO 24 position? 25 A That's correct. That's my 52 1 understanding -- 2 Q I understand. 3 A -- because I wasn't there. 4 Q Absolutely. 5 MR. RECTOR: Ms. Hayes, thank you. I 6 have no further questions. 7 I pass the witness. 8 FURTHER EXAMINATION BY COUNSEL FOR PLAINTIFF 9 BY MR. GRIFFIN: 10 Q Ms. Hayes, you had mentioned a few 11 minutes ago that there were -- there are times when 12 you were able to get information to FOH rather 13 quickly when it came to reconsidering a CSO who had 14 been recommended to be disqualified? 15 A Yes. 16 Q Okay. Do you have memory of a CSO, I 17 want to say, from Florida where the contractor had 18 failed to forward information from one of the 19 examining physicians? 20 A I -- I don't recall. 21 Q Don't worry. 22 A I don't recall. 23 Q Does the name Vichot mean anything to 24 you? If it doesn't, it's okay. 25 A It -- it doesn't. I mean, you know, off Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 15 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 14 (Pages 53 to 56) 53 1 the -- I would have to review the records. 2 Q That's all right. If you don't have any 3 independent memory, it's no -- it's no problem by 4 me? 5 A No. 6 Q Let me ask you this: Going back to 7 Cornelious 1, I'll ask you if the enclosure that's 8 with Mr. Cornelious' letter to Ms. Naman is, in 9 fact, Dr. Goldhagen's Medical Review Form? 10 A Yes. 11 Q Okay. 12 A Yes. 13 Q In other words, that's what's attached to 14 that letter -- 15 A Correct. 16 Q -- so the contractor knows what the issue 17 found by FOH is? 18 A Correct. 19 Q Okay. And insofar as the -- that Medical 20 Review Form, to the extent that MVM had decided to 21 review the Medical Review Form and the letter by 22 Mr. Cornelious and submitted information that 23 suggested that perhaps -- or not perhaps, that 24 provided records that showed that the personal 25 doctor had attested to Mr. Keneipp's ability to 54 1 ambulate normally and that he was not restricted 2 from running, as sort of outlined by 3 Judge (sic) Goldhagen, that would have been 4 precisely the type of information that you would 5 have forwarded to FOH for their review? 6 MR. RECTOR: Object to the form of the 7 question. 8 THE WITNESS: Yes. 9 BY MR. GRIFFIN: 10 Q Okay. And insofar as these -- the two 11 parties to this contract are concerned -- and if you 12 don't know, it's okay. Do you know, for example, 13 who among the two parties decided that FOH would be 14 determining fitness for duty, as opposed to MVM? 15 A I -- I'm not sure of the question. 16 Q Don't worry. 17 As I understand -- as I read this 18 contract, I think you've testified about it, 19 although the contractor has to hire the physicians 20 that conduct the examination, FOH makes the ultimate 21 recommendation as to whether a CSO is medically fit 22 or unfit? 23 A That's correct. 24 Q Okay. Do you know whether this idea came 25 from MVM, U.S. Marshals Service, which one of them 55 1 came up with that notion? 2 A I -- I don't know. I mean, that -- that 3 was established before I ever got to -- 4 Q But what -- 5 A -- JSD. 6 Q No problem. 7 But what you do know is that both parties 8 signed the contract that does delegate to USMS and 9 FOH the fitness-for-duty determination of CSOs? 10 A Yes. 11 Q Okay. And moving toward the end, sort of 12 to clean up here, when we've been using the word 13 vendor, contractor, and employer, can we agree that 14 during our time together when we're talking about 15 vendors, contractors, and employers, we're talking 16 about MVM in this instance with Mr. Keneipp? 17 A Yes. 18 Q Okay. And if I understand this right, 19 the whole process, that while there's not a formal 20 appeal process, USMS does accept information, 21 discrepancies, and even opposition from contractors 22 when they feel that a CSO has been erroneously 23 categorized as medically unfit? 24 A From -- I could say the medical 25 information. I mean, if they have additional 56 1 medical information. 2 Q Sure. 3 While there's no appeal, per se, 4 contractors are welcome to submit further 5 information so that FOH can re-examine a judgment 6 that a CSO is medically unfit? 7 A Yes. 8 Q With the goal that the decisions be 9 correct ones? 10 A Yes. 11 Q Because there's a hardship on both the 12 USMS, the contractor, and the CSO whenever a CSO has 13 to be let go for medical reasons? 14 A Yes. 15 MR. GRIFFIN: I'll pass the witness. 16 MR. RECTOR: Object to the form of the 17 question. 18 MR. GRIFFIN: Pass the witness. 19 MR. RECTOR: Just a couple of follow-ups. 20 FURTHER EXAMINATION BY COUNSEL FOR DEFENDANT 21 BY MR. RECTOR: 22 Q You testified in response to a question 23 from Mr. Griffin that both parties sign the 24 contract. 25 I just want to clarify, you're not Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 16 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 15 (Pages 57 to 60) 57 1 involved in the bid process, correct? 2 A No, no. 3 Q You're not involved in the contract 4 process at all? 5 A No. 6 Q So you wouldn't know whether the terms of 7 the contract after a bid has been accepted are 8 unilateral? You wouldn't know that? 9 MR. GRIFFIN: Object to the form. 10 THE WITNESS: No. 11 BY MR. RECTOR: 12 Q I believe -- well, we can just go back to 13 Defendant's Exhibit 4, the investigation, and that 14 same page, 168. The top says Judicial Security 15 Division, Medical Review Form. 16 Is this a standard USMS form? 17 A No. This is an FOH form. 18 Q This is an FOH form? 19 A This is an FOH form, yes. 20 Q Is there anywhere on the FOH form where 21 it instructs the CSO to contact the Marshals 22 Service, FOH, or the vendor if they disagree with 23 the determination? 24 MR. GRIFFIN: Object to form. 25 THE WITNESS: No. They just make the 58 1 recommendation on here. 2 BY MR. RECTOR: 3 Q But this is the page that is sent 4 directly to the CSO, correct? 5 MR. GRIFFIN: Object to the form. 6 THE WITNESS: This -- this is sent to -- 7 we do not send this to the CSO. 8 BY MR. RECTOR: 9 Q But it is provided? 10 A It is sent to -- 11 MR. GRIFFIN: Object to the form. 12 THE WITNESS: That's up to the 13 contractor. That's up to the contractor, employer. 14 BY MR. RECTOR: 15 Q I ask only because it says -- 16 A Yeah. 17 Q It says, "Your status is: Not medically 18 qualified..." 19 So would it be fair to say that the 20 expectation is that this will get to the CSO? 21 A Yes. 22 MR. GRIFFIN: Objection to the form. 23 THE WITNESS: Yes. 24 MR. RECTOR: Thank you. 25 No further questions. 59 1 FURTHER EXAMINATION BY COUNSEL FOR PLAINTIFF 2 BY MR. GRIFFIN: 3 Q I think you may have cleared this up in 4 answer to his question, but the FOH does not ever 5 deal directly with CSOs, do they? 6 A That's correct. 7 Q In other words, the protocols that are in 8 place are that the FOH will send the request to USMS 9 and that you will faithfully let the contractor 10 know, the vendor, MVM, know what FOH needs and 11 wants, right? 12 A That's -- that's correct. In -- with 13 supplemental -- when they're asking for additional 14 information, that request goes directly from FOH to 15 the contractor -- 16 Q Yes. 17 A -- and to us. 18 Q Right. 19 A We -- so we -- there's no interaction at 20 that point between us. 21 Q So if anybody's going to give the CSO 22 anything in these cases, it's going to be the 23 employer, MVM? 24 A Yes. 25 MR. GRIFFIN: Okay. Pass the witness. 60 1 MR. RECTOR: No further questions. 2 MR. GRIFFIN: Thank you very much. 3 THE VIDEOGRAPHER: We are now going off 4 the record. The time is 1:51. 5 (Off the video record.) 6 THE REPORTER: Can you state your 7 transcript orders? 8 MR. GRIFFIN: Same as this morning. 9 MR. RECTOR: Yeah. Yes. 10 (Off the record at 1:51 p.m.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 17 of 18 Videotaped Deposition of Barbara Hayes Conducted on August 23, 2016 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 16 (Page 61) 61 1 CERTIFICATE OF SHORTHAND REPORTER - NOTARY PUBLIC 2 I, Marney Alena Mederos, the officer 3 before whom the foregoing deposition was taken, do 4 hereby certify that the foregoing transcript is a 5 true and correct record of the testimony given; that 6 said testimony was taken by me stenographically and 7 thereafter reduced to typewriting under my 8 direction; that reading and signing was not 9 requested; and that I am neither counsel for, 10 related to, nor employed by any of the parties to 11 this case and have no interest, financial or 12 otherwise, in its outcome. 13 IN WITNESS WHEREOF, I have hereunto set my 14 hand and affixed my notarial seal this 5th day of 15 September 2016. 16 My commission expires March 31, 2018 17 Virginia Notary Number 7584458 18 19 20 21 _____________________________ 22 NOTARY PUBLIC IN AND FOR 23 THE COMMONWEALTH OF VIRGINIA 24 25 Case 4:15-cv-00565-JED-TLW Document 36-10 Filed in USDC ND/OK on 10/18/16 Page 18 of 18 Exhibit 11 Case 4:15-cv-00565-JED-TLW Document 36-11 Filed in USDC ND/OK on 10/18/16 Page 1 of 4 CONFIDENTIAL MVM 000415 TO WHOM IT MAY CONCERN SUBJECT: U.S. Marshal Physical Exams FROM: David L. Keneipp eso Tulsa, N/O 8115 S. 76th E. Ave Tulsa, OK 74133 CELL PHONE: 918-237-8047 August 23,2014 I want to make you aware of a problem that is occurring in Federal Building Court Security Office in Tulsa Oklahoma. The following is not because I do not like my job as a Court Security Officer but because of my concerns that the medical requirements are causing ~ecurity lapses at the Tulsa Federal building. : The Tulsa Oklahoma office is currently staffed with about only haW our fonner strength. 10 the near future myself and others may be leaving because we cannot comply with the medical requirements. This has caused some posts to not be staffed as they should for security of the Federal building and Federal Judges and employees. As an example the basement parking garage is not now staffed. In the past we have had numerous unauthorized vehicles piggyback behind authopzed vehicles into the underground parking area and we have had to tum them back. If someone want~ to attack our building the garage , would be the preferred place to put a bomb to do the most damage Kremember New York City). , , I relate the following about myself as an example of what is going kJn with the physicals. i , On November 6, 2012 [took the AKAL required 2012 physical E~ination. A few months after the physical I received a follow-up request by the U.S. Marshal Serv,icf which was completed and returned to AKAL in April 2013. ! , On November 18,2013 J took the next regular required 2013 phy~ical and to date no follow-up has been required. Since 1 passed the 2013 physical with no follow-up, it seems as tbQugh there was nothing wrong with this physicaJ to cause any concern. So they jumped back to 2012 phys,cal that I had already completed a follow-up in April of2013 and started over. I then received a medical follow-up request from MYM on Februafy 28. 2014 that states the need for more infonnation from the physical examination that I took in 201~ on November 6, 2012 not the 2013 physical. I returned this infonnation to MVM on May 4, 2014 wit~ the cardiologist review of his April 2013 follow-up exam as they requested. Case 4:15-cv-00565-JED-TLW Document 36-11 Filed in USDC ND/OK on 10/18/16 Page 2 of 4 CONFIDENTIAL MVM 000416 i The follow~up request never stop, they just keep coming. My cardiqlogist says there is no way he can comply with the request any more than the two times he has alreadyldone. He also stated that whoever waS making the request apparently was not a doctor familiar with catdiology because the requested information is not usually used by a doctor that was knowledgeahle pf cardiology. He Saw nothing in the 2012 physical exam or his follow-up that would preclude me form ~nctioning as a Court Security Officer. I told him that if the intormation they requested was not giyen they would terminate me. He stated that there was no way they could fire me based on the Novt:;'~ 6, 2012 exam and the follow-up physical he did. I am not the only eso having a problem complying with medicaLfqllow-up request and being terminated. Local doctors just do not think they need to comply with a request ~at they feel is frivolous. Nor do they think Washington or some doctor who has never seen their patient needs to tell them how to run their business or what their patient needs from long distance without seeing them face to face. I also believe that most of the follnw~ups are caused by the current company that does our physicals. They are doing poor initial physicals. On one physical by the current contracting (low bidder) company, [ had a college student'in nurse training do my physical and she was unsupervised just doing her clinical rotations for her school. I did not see a doctor at all during another one my physicals. Also the hearing test booth does not shut out the outside noise making it difficult to pass the hearing test. The physicals are a farce. If they were professionally done correctly it would eliminate many follow~up requests. Also the government should know that retired law enforcement officers 55 plus years old are going to have minor health problems. They are not 20 plus years old USM~ new hires. Most of these health issues do not preclude a CSO from doing his job. It seems the Am~rican With Disability Act or age discrimination does not apply to the Federal Government. ' 1 would like you to be aware that none of my supervisors, coworkers, or the Marshals service has ever questioned my ability to perfonn as a eso. There never has been ~ fitness for duty physical request of me from them. 1 am currently more than able to continue as a esQ. , On July 10, 20141 received a follow~up to the above follow~ups. r~questing additional infonnation by August 24, 2014 because they want a different test : This time they w.an~ Dr. Good who did the o~ginal stress test and tpe first follow~up to do.another stress test on a tread mill mstead ofa phannacologlc test. On July 25, 2q14 I saw Dr. Good at hiS office and showed him what was requested be said it was not necessary. But !since I had back surgery in 2010 he said he would do another pharmacologic test which he did on AQ~st 6, 2014. On August 22, 2014 I went to his office to pick up the completed ~perwork to be returned to MVM. He was out ofthe office and his nurse gave me the papers 1 needed. 1jhere Was no problems with the pharmacologic stress test and all reports we~ good. When I saw tPe answers to USMS questions he had put the reason for the pharmacologic test instead of tread mill te$t:as "Sciatica, Chronic back pain". , All my back pain was taken care of by the surgery several years :ago in 2010 and I have had no reoccurring problems. I can do anything I want including hiking ~d riding motorcycles. Case 4:15-cv-00565-JED-TLW Document 36-11 Filed in USDC ND/OK on 10/18/16 Page 3 of 4 CONFIDENTIAL MVM 000417 Now even if they accept the pharmacologic test instead of the requested tread mill test they will focus on what the doctor said about back pain. More follow-up is coming. I have enjoyed my employment as a CSO and would like to cont~ue. Respectfully, -C~IJt/)f.) /~cff! David L. Keneipp Court Security Officer Tulsa, OK Cc. TulsaMVM site Supervisor 10th Judicial District MVM Program Manager MVMHR US Marshal Northern District OK US Marshal Tulsa OK COTR US Marshal HQ Judicial Security Division The US Inspector General Office Chief Judge Gregory K. Frizzell The Honorable Senator Jim Inhofe The Honorable Senator Tom Coburn The Honorable Congressman Mark Wayne Mullins The Honorable Congressman Jim Bridenstine Case 4:15-cv-00565-JED-TLW Document 36-11 Filed in USDC ND/OK on 10/18/16 Page 4 of 4 Exhibit 12 Case 4:15-cv-00565-JED-TLW Document 36-12 Filed in USDC ND/OK on 10/18/16 Page 1 of 2 1 From: Veronica L. Naman Sent: Wednesday, October 01, 2014 1:44 PM To: Gregory Kragel Cc: John Pearson; Gregory Wholean; Jake Smith Subject: MEDICAL DISQUALIFICATION David Keneipp 10 NOK Importance: High Greg, I received notification that the supplemental medical info that CSO David Keneipp submitted in response to his MRF dated 6/22/14 (FY 14 exam) has been reviewed by Federal Occupational Health(FOH) and it has been determined that CSO Keneipp must discontinue performing under the contract. CSO Keneipp does not meet the CSO medical standards required by the contract. A copy of the MRF that indicates the reason for the medical disqualification will be sent with term letter by HR. Veronica Naman Operations Admin/QC Manager MVM, Inc. ‐ Security Programs 44620 Guilford Drive, Suite 150 Ashburn, VA 20147‐6054 (571) 223‐4568 direct line (571) 926‐2826 cell (443) 320‐9891 fax Namanv@mvminc.com This E‐mail, including any attachments, may contain company confidential information and is intended solely for use by the individual to whom it is addressed. If you received this E‐mail in error, please notify the sender, do not disclose its contents to others, and delete it from your system. Any other use of this E‐mail and/or attachments is prohibited. This message is not meant to constitute an electronic signature or intent to contract electronically. CONFIDENTIAL MVM 000339 Case 4:15-cv-00565-JED-TLW Document 36-12 Filed in USDC ND/OK on 10/18/16 Page 2 of 2 Exhibit 13 Case 4:15-cv-00565-JED-TLW Document 36-13 Filed in USDC ND/OK on 10/18/16 Page 1 of 7 David 1. Keneipp Plaintiff, vs. MVM,Inc. Defendant. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA § § § § § § § CIVIL ACTION NO. : 4: 15-CV-0056 A JURY IS DEMANDED PLAINTIFF'S AMENDED NOTICE OF VIDEO DEPOSITION OF MVM, INC. PURSUANT TO RULE 30(b)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE TO: Defendant, MVM, Inc., by and th1'Ough their attorney ofl'ecord, Jonathan G. Rector and Steven 1. Rahal, LITTLER MENDELSON, P.c., 2001 Ross Avenue, Suite 1500, Dallas, Texas 75201-2931. PLEASE TAKE NOTICE, that pursuant to Fed. R. Civ. P. 30(b)(6), the stenographic video deposition of MVM, Inc. will be taken before a qualified court repOlter at 9:00 a.m. on May 26,2016 at the offices of Russell COUlt Reporting, Inc., 321 South Boston Avenue, Suite 300, Tulsa, Oklahoma 74103, and thereafter by adjournment lmtil the same shall be completed. Pursuant to Fed. R. Civ. P. 30(b)(6), MVM, Inc. is required to designate and fully prepare one or more officers, directors, managing agents or other persons with the most knowledge concerning the matters designated on the attached Exhibit A; or other persons who consent to testify on its behalf, and whom Defendant will fully prepare to testify regarding the following designated matters and as to such information that is known or reasonably available to the organization. Respectfully submitted, MAREK, GRIPFIN & KNAUPP P.O. Box 2329 Victoria, Texas 77902 (361) 573-5500 [Telephone] (361) 573-5040 [TelecopierJ By: lsi John W. Griffin JOHN W. GRIFFIN Federal Bar No. 2228 State Bar No. 08460300 Michael Neuerburg Federal Bar No. 1580044 Case 4:15-cv-00565-JED-TLW Document 36-13 Filed in USDC ND/OK on 10/18/16 Page 2 of 7 State Bar No. 24075562 KATHERINE L. BUTLER State Bar No. 03526300 BUTLER & HARRIS 1007 Heights Blvd. Houston, Texas 77008 (713) 526-5677 [Telephone] (888) 370-5038 [Telecopier] MICHAEL D. MCGREW State Bar. No. 13167 MCGREW, MCGREW, AND ASSOCIATES, P.C. 400 N. Walker Avenue, Suite 115 Oklahoma City, Oklahoma 73102 (405) 235-9909 [Telephone] (405) 235-9929 [Telecopier] ATTORNEYS FOR PLAINTIFF Case 4:15-cv-00565-JED-TLW Document 36-13 Filed in USDC ND/OK on 10/18/16 Page 3 of 7 Certificate of Service I hereby certify that on April 8,2016, I served the foregoing by email on the following counsel for defendant: Jonathan G. Rector Steven L. Rahal LITTLER MENDELSON, P.c. 2001 Ross Avenue, Suite 1500 Dallas, Texas 75201-2931 srahhal@littler.com jrector@littler.com Attorneys for Defendant MVM, Inc. lsi Michael J. Neuerburg Michael J. Neuerburg Case 4:15-cv-00565-JED-TLW Document 36-13 Filed in USDC ND/OK on 10/18/16 Page 4 of 7 Exhibit A Rule 30(b)(6) deposition topics: 1. The factual reasons for the decision to terminate Plaintiff. 2. Defendant's decision-making process for said termination, including the identities and roles of all those involved and any documents considered or generated in the process. 3. 4. 5. 6. 7. 8. The role of the United States Marshals Service (USMS) in Plaintiffs termination. Defendant's suspensions and/or terminations of Court Security Officers based upon medical disqualification in the years 2010 through the present. Any appeals or challenges (whether or not presented in court) by Court Security Officers who were terminated based on medical disqualification and any response by Defendant to those appeals or challenges in the years 2010 through the present. Requests for medical information made to Plaintiff or his doctors, including Defendant's reasons and decision-making process regarding any such request. Defendant's knowledge of Plaintiffs medical condition and evaluation of medical information from Plaintiff or his doctors, including but not limited to the time and manner in which Defendant became aware of Plaintiffs cardiac condition and/or back pain/sciatica. Defendant's contract(s) with the United States Marshals Service to provide CSO services for the Northern District of Oklahoma that was/were operative during Plaintiffs employment. 9. The roles of MVM and the USMS in managing the employment of CSOs, including but not limited to medical standards, medical examinations, job duties, medical disqualifications, suspensions, and terminations. 10. The essential functions of Plaintiffs job as CSO. 11. Plaintiffs ability to perform the essential functions of his job. 12. Plaintiffs work history and work performance while working for you and your evaluation of same, including but not limited to any performance reviews, raises, promotions, any verbal or written counseling or warning given to Plaintiff, and any discipline or other corrective action taken. 13. Plaintiffs pay and benefits from his hiring by Defendant until his termination. 14. Your participation in the EEOC process, including the documents provided to the EEOC and any statements or representations made to the EEOC. 15 . Your policies and procedures related to the suspension or termination of employees. 16. Your non-discrimination policies, procedures and training, including any policies, procedures and training related to compliance with the Americans with Disabilities Act. Case 4:15-cv-00565-JED-TLW Document 36-13 Filed in USDC ND/OK on 10/18/16 Page 5 of 7 17. Defendant's suspensions and/or terminations of employees other than Court Security Officers based upon medical disqualification in the years 2010 through the present. 18. Any assessments ofthe ability ofCSOs to exert themselves or perfOlm at a celtain MET (Metabolic Equivalent of Task) level. 19. The ability of Court Security Officers who have previously undergone back surgery to perform the essential functions ofthe job and any assessments of same. 20. The ability of Court Security Officers with abnormal EKG results, including but not limited to small fixed apical defects, to perfOlm the essential functions of the job and any assessments of same. 21. Plaintiff s requests for accommodation, including any request to withdraw or modify medical examinations, Defendant's evaluation of same, and Defendant's responses. 22. Defendant's decision~making process regarding Plaintiffs requests for accommodation, including the identities and roles of all those involved and any documents considered or generated in the process. 23. Any accommodations you offered or suggested to Plaintiff at any point during his employment and your decision-making process for any such proposed accommodations. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. Any accommodations you granted to Plaintiff and any restrictions you placed upon such accommodations. The annual medical testing that Mr. Keneipp underwent as a CSO. Communications between Defendant or the USMS on the one hand and any of Plaintiff's medical providers on the other hand. Communications with the USMS regarding Plaintiff's medical condition, medical examinations, disqualification or termination. Communications with the Plaintiff regarding his medical condition, medical examinations, disqualification or termination. The affirmative defenses you have asserted in this lawsuit and your alleged factual bases for same. The factual basis for your contention that Mr. Keneipp failed to mitigate his damages. Your contention that the CSO medical standards are bona fide occupational qualifications. Your contention that Plaintiff s claims are barred by limitations or failure to timely exhaust administrative remedies. Your contention that Plaintiff's own acts or omissions caused or contributed to Plaintiff's injury. II Case 4:15-cv-00565-JED-TLW Document 36-13 Filed in USDC ND/OK on 10/18/16 Page 6 of 7 34. The factual basis for your contention that a new and independent cause intervened between your acts and Plaintiffs injury. 35. The factual basis for your claim that your discharge of Plaintiff was based upon business necessity. 36. Any acts of dishonesty or insubordination that you contend reflect upon Plaintiff's credibility. 37. The existence of the documents requested by Plaintiff in this suit pursuant to Fed. R. Civ. P. 34. 38. The systems and process for the creation, duplication and/or storage of the documents and/or electronically stored information requested by Plaintiff in this suit pursuant to Fed. R. Civ. P. 34. 39. Any and all document retention/destruction policies that would relate to any of the documents requested by Plaintiff in this suit pursuant to Fed. R. Civ. P. 34. 40. The location of the documents requested by Plaintiff in this suit pursuant to Fed. R. Civ. P. 34. 41. The organization, indexing and/or filing of the documents requested by Plaintiff in this suit pursuant to Fed. R. Civ. P. 34. 42. The method of search for the documents requested by Plaintiff in this suit pursuant to Fed. R. Civ. P. 34. 43. 44. The completeness of the documents produced pursuant to Fed. R. Civ. P. 34. The authenticity of the documents produced pursuant to Fed. R. Civ. P. 34. I 11 if II it Case 4:15-cv-00565-JED-TLW Document 36-13 Filed in USDC ND/OK on 10/18/16 Page 7 of 7
