Mccurdy v. Red Onion State Prison

Brief / Memorandum in Support re MOTION for Partial Summary Judgment .

W.D. Va.May 3, 2017

1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA Big Stone Gap Division THOMAS MCCURDY ) ) Plaintiff, ) ) Case No. 2:16-cv-00017 (JPJ/PMS) v. ) ) VIRGINIA DEPARTMENT ) OF CORRECTIONS ) ) Defendant. ) ) PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff Thomas McCurdy (“Mr. McCurdy”) respectfully moves this Court to grant his Partial Motion for Summary Judgment on his claim of a race-based hostile work environment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) against Defendant Virginia Department of Corrections (“VDOC”). As set forth below, the undisputed material facts confirm that Mr. McCurdy is entitled to judgment as a matter of law with respect to this claim. RELEVANT FACTS A. Mr. McCurdy’s Employment at Red Onion State Prison for VDOC Defendant VDOC is a correctional agency established by the Commonwealth of Virginia which, among other things, operates Virginia’s prison system, including Red Onion State Prison (“ROSP”) in Pound, Virginia. Am. Compl. ¶ 3; Def.’s Answer ¶ 3. Mr. McCurdy was an employee of VDOC within the meaning of 42 U.S.C. § 2000e(f), and VDOC was an employer within the meaning of 42 U.S.C. § 2000e(b). Am. Compl. ¶ 7-8; Def.’s Answer ¶ 7-8. VDOC is engaged in an industry affecting commerce and had greater than fifteen employees during the Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 1 of 13 Pageid#: 137 2 relevant time periods in each of twenty or more calendar weeks in the current or preceding year, within the meaning of 42 U.S.C. § 2000e(b). Am. Compl. ¶ 9; Def.’s Answer ¶ 9. Mr. McCurdy began his employment for VDOC in April 2012. Am. Compl. ¶ 12; Def.’s Answer ¶ 12. B. The April 1, 2013 Incident Marie Knoskie (“Knoskie”) discovered the phrase “I Hate Niggers” written in a logbook in or around April of 2013. Knoskie brought the logbook to the attention of Mr. McCurdy, and both individuals proceeded to give the logbook to Counselor Norman Lewis (“Lewis”). Deposition of Thomas McCurdy (“McCurdy Dep.”), attached hereto as Exhibit A, at 22:6-15. Mr. McCurdy also notified his supervisor, Lieutenant Paul Payne (“Lt. Payne”). See Exh. A [McCurdy Dep.], 24:21-24 – 25:1-3. Human Resources Director of VDOC Renee Conley (“Conley”) first became aware of the incident in February 2014 after Knoskie refused to take a post in the C2 Control Room. Deposition of Renee Conley (“Conley Dep.”) attached hereto as Exhibit B, at 18:19-24 - 19:1- 23. Knoskie refused to work the C2 Control Room post, because it was the location in which she first discovered the racial epithet written in the logbook. Id. Conley verified that she did not view the logbook, including pages 26 and 223 from the book, attached as Exhibit E and Exhibit F,1 on which “I Hate Niggers” had been written, until at least one year after the racial epitaphs had initially been discovered by Knoskie. Exh. B. [Conley Dep], 21:6-11. Conley did not know why, as the Director of Human Resources, she had not been made aware of the incident for a year. Id. at 22:13-5. Had the matter been investigated as a human resources issue, Conley would have been involved. Id. at 23:18-21. 1 Exhibit E and Exhibit F were introduced as Exhibit 6 and Exhibit 7, respectively, at the deposition of Thomas McCurdy. Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 2 of 13 Pageid#: 138 3 C. Investigation and Remedial Action in Response to the April 1, 2013 Incident Following Mr. McCurdy and Knoskie’s initial complaint about the incident in April of 2013, Mr. McCurdy frequently asked his supervisor, Lt. Payne what steps were being taken to investigate the incident. Exh. A [McCurdy Dep.], 24:21-24 – 25:1-3. Mr. McCurdy also checked with Knoskie on several occasions to determine if Knoskie had been provided any information about the investigation of which he was not aware. Id. at 25:4-7. Knoskie responded to Mr. McCurdy on these occasions that she had not heard anything further about the investigation into the logbook. Id. at 25:8-11. After becoming aware of the incident involving the logbook, Warden Randall Mathena (“Mathena”) asked Lieutenant John McQueen (“Lt. McQueen”) to investigate.2 Exh B. [Conley Dep.], 21:15-17. Lt. McQueen investigated the incident and was unable to come to any conclusions as to the identity of the author. Def’s Resp. to Pl.’s First Set of Interrogs. at p. 9, attached hereto as Exhibit C. No cameras caught the act or acts, and VDOC believed that obtaining a handwriting analysis was prohibitively expensive. Id. VDOC is not aware if any evaluation of the cost was completed. Deposition of Renee Conley (“Conley 30(b)(6) Dep.”) attached hereto as Exhibit D at 45:10-18. Following the incident, no additional cameras or policy changes were made to avoid further racial incidents at the post. Exh. D [Conley 30(b)(6) Dep.], 47:20-24. According to Conley, “they kind of let it drop and just say, you know, remove it. They removed the logbook and that was sufficient in their eyes, so, you know.” Exh. B [Conley Dep.], 21:24 – 22:1-3. 2 Conley states in her deposition testimony that Mathena was “made aware” of the incident, but does not indicate how or when this information was brought to Mathena’s attention. Exh B. [Conley Dep.], 21:15- 17. Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 3 of 13 Pageid#: 139 4 Upon inquiry by Mr. McCurdy in May 2014 about what had been done in response to the racial epithet written in the logbook, Major Arvil Gallihar (“Mjr. Gallihar”) told McCurdy the administration had looked into it, but were not able to determine who had written the comment and there was nothing else they could do. Exh. C. at p. 11. D. Other Complaints of Racial Discrimination At some point during his employment at ROSP for VDOC, Mr. McCurdy informed Conley that Correctional Officer Martinez Miles (“Ofc. Miles”) had told Mr. McCurdy about racial jokes and slurs that had been made. Am. Compl. ¶ 16; Def.’s Answer ¶ 16. Mr. McCurdy told Conley that Ofc. Miles, who was on short term disability at the time, did not want to return to work because of the racial jokes and slurs that were being directed at Ofc. Miles by his co- workers. Exh. B. [Conley Dep.], 11:10-13. Mr. McCurdy informed Conley that Ofc. Miles was hesitant to come forward due to his belief that he would get “a target on his back” if he voiced his complaint. Id. 17:12-16. Conley does not recall whether she discussed with Mr. McCurdy if he had been subjected to similar racial jokes and discriminatory treatment. Id. at 16:20-24 – 17:1-6.3 Conley attempted to contact Ofc. Miles without success, and Ofc. Miles never filed a complaint. Am. Compl. ¶ 16; Def.’s Answer ¶ 16. E. Investigation and Remedial Action in Response to Other Complaints of Racial Discrimination 3 While Plaintiff maintains he was subject to racial slurs, jokes, and racially discriminatory treatment at ROSP in addition to the racial epitaphs discovered in the logbook, Plaintiff concedes those facts remain in dispute. Plaintiff further maintains he reported his concerns about racial slurs, jokes, and racially discriminatory treatment against himself personally to Conley and to ROSP, generally, but those facts also remain in dispute. Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 4 of 13 Pageid#: 140 5 Conley attempted to call Ofc. Miles at the number listed in his personnel file but could not get an answer. Exh. C Def’s Resp. to Pl.’s First Set of Interrogs. at p. 6. For reasons unknown to Conley, some limitation prevented her from leaving a message. Id. Conley attempted to contact Ofc. Miles several times with no success. Id. Conley did not investigate the matter further, citing her inability to contact Ofc. Miles as the reason no further investigation was conducted. Exh. B [Conley Dep.], 12:13-24 – 13:1. Ofc. Miles eventually rolled over into long term disability, and his position became open pursuant to DHRM policy. Exh. C Def’s Resp. to Pl.’s First Set of Interrogs. at p. 6. ARGUMENT A. Standard of Review Summary judgment is appropriate where the record demonstrates “there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The question on summary judgment is “whether a reasonable jury could find in favor of the non-moving party, taking all inferences to be drawn from the underlying facts in the light most favorable to the non-movant[.]” In re Apex Express, 190 F.3d 624, 633 (4th Cir. 1999). To survive a summary judgment motion, “[t]he disputed facts must be material to an issue necessary for the proper resolution of the case, and the quality and quantity of the evidence Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 5 of 13 Pageid#: 141 6 offered to create a question of fact must be adequate to support a jury verdict.” Thompson Everett, Inc. v. Nat’l Cable Adver., L.P., 57 F.3d 1317, 1323 (4th Cir. 1995) (citation omitted). The non-moving party may not rest upon a “mere scintilla” of evidence, but must instead offer specific facts showing there is a genuine issue for trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). B. Plaintiff is Entitled to Judgment as a Matter of Law on His Claim of a Race-Based Hostile Work Environment. To establish a hostile work environment claim, an employee must prove “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations and citations omitted). A plaintiff must demonstrate that the offending conduct was (1) unwelcome; (2) based on race; (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment; and (4) imputable to his employer. Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 334 (4th Cir. 2010). 1. No Genuine Dispute of Material Fact Exists as to Whether the Offending Conduct was Unwelcome and Based Upon Race. With respect to the first two elements of hostile work environment claims, there is no dispute. A plaintiff must show that he subjectively perceived his workplace environment to be hostile and also that it would be objectively perceived as such by a reasonable person in his position. Harris, 510 U.S. at 22; EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). The use of the phrase “I Hate Niggers” in the workplace is obviously unwelcome and Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 6 of 13 Pageid#: 142 7 based upon race. This Circuit recognizes the term “nigger” is “pure anathema” to African- Americans. Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001). In addition to being objectively unwelcome, the behavior was subjectively unwelcome: Mr. McCurdy complained to Conley regarding the racial slurs and jokes he and Ofc. Miles endured. Moreover, the slurs and jokes were, without question, directed toward black individuals. The term “nigger” is an “‘unambiguously racial epithet,’” Id. (quoting Rodgers v. Western- Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)). There is no genuine dispute of fact on these issues. 2. No Genuine Dispute of Material Fact Exists as to Whether the Offending Conduct was Sufficiently Severe or Pervasive to Alter the Conditions of Plaintiff’s Employment and Create an Abusive Work Environment. The severity or pervasiveness of allegedly harassing or discriminatory conduct must be assessed in view of the totality of the circumstances, including: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening or humiliating, or merely offensive; and (4) whether the conduct unreasonably interfered with an employee’s work performance. Harris, 510 U.S. at 23. However, the determination of whether a work environment hostile or abusive “is not . . . a mathematically precise test.” Boyer-Liberto v. Fontainebleu Corp., 786 F.3d 264, 277 (4th Cir. 2015) (quoting Harris, 510 U.S. at 22). The “severe or pervasive” standard is phrased in the disjunctive, and the Fourth Circuit has held that even a single incident may be “severe enough to be actionable in and of [itself]” under a hostile work environment theory. See Okoli v. City of Baltimore, 648 F.3d 216, 221 & n.5 (4th Cir. 2011). With respect to the racial epithet Mr. McCurdy and Knoskie saw written twice in the logbook, “[t]here is no bright line test for the number of times a supervisor or employer can use a Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 7 of 13 Pageid#: 143 8 racial slur while addressing an employee without creating a hostile work environment for Title VII purposes.” Roberts v. Fairfax Cnty. Pub. Sch., 858 F. Supp. 2d 605, 610 (E.D. Va. 2012). Use of the racial epithet at issue is the kind of insult that can create an abusive working environment in an instant, see Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993), and is degrading and humiliating in the extreme, see Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000). Use of the word “nigger” is patently offensive, and because of its severity, in other cases, it is the racial slur by which the severity of other racial slurs is measured. See Boyer-Liberto., 786 F.3d at 280. Moreover, the danger inherent in the nature of the work Mr. McCurdy conducted at ROSP made the use of a racial slur in this work environment particularly severe. Because of Mr. McCurdy’s position as a correctional officer in Virginia’s only maximum-security prison, mutual trust between himself and his co-workers was of paramount importance. The phrase “I Hate Niggers” created a work environment in which the black employees, including Mr. McCurdy, could not trust their coworkers would support them or be willing to protect them in case of an emergency. Moreover, during Mr. McCurdy’s employment with VDOC, he reported the use of other racial slurs and offensive comments made to another black coworker, Ofc. Miles. These complaints were so severe that Mr. McCurdy communicated his belief to Conley that Ofc. Miles would not return to work because of them. Further, VDOC failed to take appropriate remedial action in response to the complaints of discrimination based upon race made by Mr. McCurdy. In this failure, VDOC exacerbated Mr. McCurdy’s fear for his safety and security at ROSP as well as his belief that neither his co- workers nor supervisors would come to his aid in the event of inmate violence. Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 8 of 13 Pageid#: 144 9 Based on the uncontested facts, no genuine dispute of material fact remains as to whether Mr. McCurdy subjectively perceived the environment in which he worked to be hostile, or that a reasonable person in Mr. McCurdy’s position would not objectively share this view. 3. No Genuine Dispute of Material Fact Exists as to Whether the Offending Conduct is Imputable to Plaintiff’s Employer. Offending conduct will only be imputed to the employer when a plaintiff can demonstrate “some basis for imposing liability,” usually in the form of evidence that the employer “knew or should have known about the harassment and failed to take effective action to stop it . . . [by] respond[ing] with remedial action reasonably calculated to end the harassment.” Sunbelt Rentals, 521 F.3d 306 at 319 (internal quotation marks and citations omitted). Here, VDOC does not contest that Mr. McCurdy informed it of the racial jokes and slurs directed at Ofc. Miles, nor does it contest knowledge of the logbook in which a racial epithet had been written twice. Further, the limited action VDOC contends it took in response to Mr. McCurdy’s complaints of discrimination cannot reasonably be interpreted as “remedial action reasonably calculated to end the harassment.” Id. Immediately after seeing “I Hate Niggers” written in the logbook, Mr. McCurdy and Knoskie proceeded to notify their superior, Lt. Payne, and counselor, Lewis, about the epithet. For almost a full year following their complaint, VDOC failed to inform Human Resources about the incident. Because of VDOC’s lack of communication about the matter, Mr. McCurdy was forced to reach out about updates on the investigation VDOC eventually performed., thereby exacerbating Mr. McCurdy’s belief that VDOC did not care to correct or remedy the racial harassment in the workplace. Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 9 of 13 Pageid#: 145 10 Even though there is a basis for imposing liability on VDOC for the actions of one of its employees, an employer may still escape liability by raising an affirmative defense and proving that: (1) it “exercised reasonable care to prevent and correct promptly any harassing behavior” and/or (2) that the plaintiff “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). VDOC has not alleged either of these two affirmative defenses. Def.’s Answer at p. 9-10. Accordingly, no genuine dispute of material fact exists as to whether either of these defenses may be successfully utilized by the Defendant even if they had been alleged. The only affirmative defense raised by Defendants in their Answer even arguably within these bounds states, in general and conclusory terms, that “Plaintiff failed to adequately report instances of racial harassment, animus, or hostility to his superiors.” Id. First, this defense is distinguishable from the defense set forth in Faragher, because it does not allege that Mr. McCurdy “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807. VDOC has not alleged that Mr. McCurdy was presented with any preventive or corrective opportunities, nor does it allege any action Mr. McCurdy might have taken to otherwise avoid harm. More importantly, the allegation is contrary to the evidence that has come to light in discovery. Mr. McCurdy reported instances of racial harassment, animus, or hostility to his superiors on multiple occasions; his superiors either ignored or failed to properly investigate on each occasion. Mr. McCurdy immediately reported the racial epithet discovered in the logbook to Lewis, and followed up repeatedly with his supervisor, Lt. Payne, to determine if VDOC had taken Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 10 of 13 Pageid#: 146 11 action in response to his complaint. Mr. McCurdy voiced his concern to Conley that Ofc. Miles did not want to return to work because of the racial jokes and offensive statements being made to him by his co-workers. Mr. McCurdy even explained to Conley that Ofc. Miles would likely be hesitant to defend himself personally against this discrimination due to the fear of retaliation he perceived. When VDOC received these complaints, it had a responsibility to promptly investigate and take appropriate remedial action; it failed to do so. Even should this Court find that VDOC may allege the second affirmative defense, it would be contrary to the evidence to find that VDOC “exercised reasonable care to prevent and correct promptly any harassing behavior.” Ellerth, 524 U.S. 742 at 765. By Conley’s own admission, the only action VDOC took in response to Mr. McCurdy’s complaint of racial jokes and racially offensive comments so severe that they prevented Ofc. Miles from returning to work, was to repeatedly attempt to contact Ofc. Miles at a telephone number that was no longer working and at which no message could be left. In response to the discovery of a racial epithet written twice in a logbook, VDOC failed to install cameras, change policy, or make any meaningful attempt to prevent such occurrences from taking place in the future. Further, despite Mr. McCurdy’s complaint to a superior officer, VDOC failed to inform Human Resources of the incident for approximately one year. There is no manner in which these facts can be construed so as to allow a reasonable person to believe that VDOC “exercised reasonable care to prevent and correct promptly any harassing behavior.” Id. There is no genuine issue of material fact on the issue of whether liability may be imputed to VDOC, and there is no genuine issue of material fact with respect to whether VDOC may escape liability through an affirmative defense on these issues. Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 11 of 13 Pageid#: 147 12 CONCLUSION Mr. McCurdy has demonstrated that no genuine issue of material fact exists as to: (1) whether the offending conduct was unwelcome; (2) whether the offending conduct was based on race; (3) whether the offending conduct in question was sufficiently severe and pervasive so as to constitute a hostile work environment, and (4) whether the offending conduct in question is imputable to his employer, VDOC. For these reasons, Plaintiff respectfully requests that the Court grant his Partial Motion for Summary Judgment on his claim of a race-based hostile work environment under Title VII against Defendant VDOC. Respectfully submitted, Dated: May 3, 2017 By: /s/ Joshua Erlich (VA Bar No. 81298) Davia Craumer (VA Bar No. 87426) Katherine L. Herrmann (VA Bar No. 83203) The Erlich Law Office, PLLC 2111 Wilson Blvd. Suite 700 Arlington, VA 22201 Tel: (703) 791-9087 Fax: (703) 351-9292 Email: jerlich@erlichlawoffice.com dcraumer@erlichlawoffice.com kherrmann@erlichlawoffice.com Counsel for Plaintiff Thomas McCurdy Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 12 of 13 Pageid#: 148 13 CERTIFICATE OF SERVICE I hereby certify that on May 3, 2017 a true copy of the foregoing was filed electronically with the Clerk of the Court and served electronically using the CM/ECF upon: Ryan Spreague Hardy Assistant Attorney General State Bar No. 78558 Office of the Attorney General 202 North Ninth Street Richmond, VA 23219 (804) 786-0969 Fax: (804) 371-2087 rhardy@oag.state.va.us Counsel for Defendant /s/ Joshua Erlich (VA Bar No. 81298) Davia Craumer (VA Bar No. 87426) Katherine L. Herrmann (VA Bar No. 83203) The Erlich Law Office, PLLC 2111 Wilson Blvd Suite 700 Arlington, VA 22201 Tel: (703) 791-9087 Fax: (703) 351-9292 Email: jerlich@erlichlawoffice.com dcraumer@erlichlawoffice.com kherrmann@erlichlawoffice.com Counsel for Plaintiff Thomas McCurdy Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 13 of 13 Pageid#: 149 EXHIBIT A Case 2:16-cv-00017-JPJ-PMS Document 29-1 Filed 05/03/17 Page 1 of 5 Pageid#: 150 ·1· ·the conversation? ·2· · · · · · A· · · No. ·3· · · · · · Q· · · Did you ever make jokes at their ·4· ·expense? ·5· · · · · · A· · · No. ·6· · · · · · Q· · · On page three you mention a logbook ·7· ·that Marie -- Knoskie -- ·8· · · · · · A· · · Knoskie. ·9· · · · · · Q· · · -- found that contained, according 10· ·to this statement -- and you gave this logbook to 11· ·Greg Swiney, correct? 12· · · · · · A· · · No, I didn't give it to Greg Swiney. 13· · · · · · Q· · · Who gave the logbook to management? 14· · · · · · A· · · We showed Counselor Lewis, Norman 15· ·Lewis. 16· · · · · · Q· · · And did Counselor Lewis forward the 17· ·logbook on? 18· · · · · · A· · · I don't know. 19· · · · · · Q· · · So, the last you knew about the 20· ·logbook you gave it to Norman Lewis and -- 21· · · · · · A· · · We showed Norman Lewis.· The book is 22· ·not allowed -- once it is upstairs, it is not 23· ·allowed to go anywhere else, because it documents 24· ·everything that goes on that day in the pods. Case 2:16-cv-00017-JPJ-PMS Document 29-1 Filed 05/03/17 Page 2 of 5 Pageid#: 151 ·1· · · · · · Q· · · So, tell me more about this logbook ·2· ·then.· So who has to sign it? ·3· · · · · · A· · · Officers. ·4· · · · · · Q· · · When would they have to sign the ·5· ·logbook? ·6· · · · · · A· · · As soon as we come on shift. ·7· · · · · · Q· · · So it's an entry? ·8· · · · · · A· · · Yes. ·9· · · · · · Q· · · Do you have to indicate any type of 10· ·activity or just that you are coming in, you are 11· ·showing up for work on your shift? 12· · · · · · A· · · Coming in and log all activities 13· ·going on that day in the pods.· It was in the 14· ·control room. 15· · · · · · Q· · · What was your relationship like with 16· ·Greg Swiney? 17· · · · · · A· · · He was my unit manager. 18· · · · · · Q· · · Did you guys get along? 19· · · · · · A· · · Yeah. 20· · · · · · Q· · · Did you associate with him outside 21· ·of work? 22· · · · · · A· · · No. 23· · · · · · Q· · · And you state on page 8, "Lieutenant 24· ·Payne."· Who is Lieutenant Payne? Case 2:16-cv-00017-JPJ-PMS Document 29-1 Filed 05/03/17 Page 3 of 5 Pageid#: 152 ·1· · · · · · A· · · Paul Payne. ·2· · · · · · Q· · · And where is a lieutenant within the ·3· ·chain of command?· Is he right above you? ·4· · · · · · A· · · Yeah, he is above me.· It goes ·5· ·sergeant, lieutenant, and then the major, then AW ·6· ·and then warden. ·7· · · · · · Q· · · AW means? ·8· · · · · · A· · · Assistant warden. ·9· · · · · · Q· · · As a lieutenant, did Payne have the 10· ·authority to reprimand correctional officers? 11· · · · · · A· · · Yes. 12· · · · · · Q· · · Do you know anything about the 13· ·investigation into the logbook? 14· · · · · · A· · · No.· What we were told was that they 15· ·were doing a handwriting to see who wrote it, but... 16· · · · · · Q· · · Who told you that? 17· · · · · · A· · · Paul Payne. 18· · · · · · Q· · · And what else were you told about 19· ·the investigation other than the handwriting? 20· · · · · · A· · · That was it. 21· · · · · · Q· · · Did you ever follow up with anyone? 22· · · · · · A· · · Yeah.· We followed up just about 23· ·every time we went in on shift about it. 24· · · · · · Q· · · Who did you talk to? Case 2:16-cv-00017-JPJ-PMS Document 29-1 Filed 05/03/17 Page 4 of 5 Pageid#: 153 ·1· · · · · · A· · · I talked to Lieutenant Payne, and -- ·2· ·I think he was about the only one we really talked ·3· ·to.· He was my sergeant in my building. ·4· · · · · · Q· · · Did you talk to Knoskie about this? ·5· · · · · · A· · · I think I talked to her a couple ·6· ·times about it when she come on shift; has she heard ·7· ·anything about it. ·8· · · · · · Q· · · Did she inform you about any updates ·9· ·that she received about the investigation? 10· · · · · · A· · · She said she hadn't heard anything 11· ·either. 12· · · · · · Q· · · On page 9 towards the bottom, there 13· ·are some words that are scribbled out.· Can you tell 14· ·me what those are? 15· · · · · · A· · · No, I can't. 16· · · · · · Q· · · Did anyone tell you to scribble 17· ·these words out? 18· · · · · · A· · · No. 19· · · · · · Q· · · It was a self-edit? 20· · · · · · A· · · Yes. 21· · · · · · Q· · · Actually, I notice on several pages, 22· ·like 8, 9, 4, 5 and 6, there is white spots on the 23· ·page.· Can you explain that? 24· · · · · · A· · · White spots on the page? Case 2:16-cv-00017-JPJ-PMS Document 29-1 Filed 05/03/17 Page 5 of 5 Pageid#: 154 EXHIBIT B Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 1 of 14 Pageid#: 155 ·1· ·And you know, Tom brought up a couple things, said ·2· ·that, you know, he was out and he was worried about ·3· ·him a little bit.· He said he needed to grow up a ·4· ·little bit.· You know, I think his girlfriend might ·5· ·have been pregnant at the time.· And I think it was ·6· ·kind of stressing him out, you know.· We were just ·7· ·having a general conversation about that. ·8· · · · · · · · · But, you know, I said -- I don't ·9· ·know if I said it, or he said it, but anyway it was 10· ·brought up that Miles didn't want to return to work 11· ·because of racial complaints, and said he was -- 12· ·there was jokes and slurs and that kind of thing 13· ·being said in the back to him.· And I said well, you 14· ·know, he needs to report this.· Why hasn't he come 15· ·forward?· If he will report it and give us the 16· ·information that we need, then, you know, we will 17· ·investigate it. 18· · · · · · · · · And Tom said something to the effect 19· ·of, well, you know, you know how it is back there, 20· ·if you say anything, then you get -- you can get a 21· ·target on your back, so... 22· · · · · · · · · So, I mean, we kind of talked. I 23· ·don't remember much else about that particular 24· ·conversation, but I do know I went back into the Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 2 of 14 Pageid#: 156 ·1· ·office that day and I tried to call him, tried to ·2· ·call him a couple times to see if I could get him to ·3· ·talk to me, but again, his phone number was not -- ·4· ·it was either not working, or you know how sometimes ·5· ·you call a cell number and it doesn't have a ·6· ·voicemail set up, that kind of thing.· So, we had ·7· ·tried to call him and I didn't -- I couldn't get up ·8· ·with him. ·9· · · · · · Q· · · Do you recall a time when Mr. Miles 10· ·and Mr. McCurdy ever came to speak to you together? 11· · · · · · A· · · I don't remember that, no, I don't 12· ·remember a conversation like that. 13· · · · · · Q· · · When you heard through Mr. McCurdy 14· ·about Martinez's -- Mr. Miles' concerns, did you 15· ·consider investigating without a formal complaint? 16· · · · · · A· · · Well, if I had -- and we do. I 17· ·mean, we could, but then what do you do.· I mean, 18· ·you know, they worked on a shift that had probably 19· ·8O officers on it, plus the supervisors, which is 20· ·probably well over a hundred people, you know. 21· ·And normally without names, dates, times, places, 22· ·something, then how do you begin an investigation. 23· ·So that's what I made an attempt to contact, you 24· ·know, Martinez Miles about that day, to see if I Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 3 of 14 Pageid#: 157 ·1· ·could get him to talk to me. ·2· · · · · · · · · Pretty much I think employees are ·3· ·aware of if they come in the office and they gave ·4· ·dates and times and names, then it is an automatic, ·5· ·yes, we are going to investigate this, you know. I ·6· ·could have investigated situations if I had known ·7· ·where it had went in a building, or if I had known ·8· ·if it was, you know, in a particular -- if it was ·9· ·during lunch breaks or -- you know, there is things 10· ·you can do. 11· · · · · · · · · But I mean, Miles had been there for 12· ·a good while, so when did that occur, you know.· Was 13· ·it just one employee that said it, was it, you know, 14· ·two years previously.· It's just, you know.· So 15· ·there is no way to investigate something without 16· ·having some kind of a time frame for the situation. 17· · · · · · Q· · · Did Mr. McCurdy register any 18· ·complaints on his own behalf? 19· · · · · · A· · · I don't recall that.· You know, I 20· ·think we were focused -- I was focused at least on 21· ·Martinez, you know. 22· · · · · · Q· · · So did Mr. McCurdy ever register any 23· ·complaints on his own behalf? 24· · · · · · A· · · Just when we were talking about Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 4 of 14 Pageid#: 158 ·1· ·Martinez.· No, not for himself, not that I recall ·2· ·anyway. ·3· · · · · · Q· · · So let's talk a little bit more ·4· ·generally about what would happen if someone did ·5· ·come into your office and give you dates and times. ·6· · · · · · · · · ·So, had -- and I am not asking you ·7· ·to speculate about a hypothetical situation, but I ·8· ·am sure in the past you have received complaints and ·9· ·you have followed through with investigations.· In 10· ·the past when you have received complaints and 11· ·followed through with investigations, what is your 12· ·process? 13· · · · · · A· · · The process would be if an employee 14· ·comes into the office, we close the door, we sit 15· ·down and talk.· And they begin to tell me what has 16· ·happened.· You know, the first thing I typically 17· ·tell them, you know, I am obligated to investigate 18· ·this or we are here at the facility.· Once you give 19· ·me names, dates, and times and places we have an 20· ·obligation to investigate and report.· So employees 21· ·are aware of that right off the bat. 22· · · · · · · · · I take out my little notebook and we 23· ·start talking, you know.· An employee will tell 24· ·me -- if they tell me, most of them would -- what Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 5 of 14 Pageid#: 159 ·1· ·happened, where it happened, who it was -- who said ·2· ·what, if there was any witnesses involved. ·3· · · · · · · · · I would take just like a little ·4· ·report.· Sometimes I would ask the employee to put ·5· ·it in writing, you know, tell us in writing exactly ·6· ·what happened.· If I didn't do that, typically our ·7· ·warden would.· So once the complaint was made, then ·8· ·I would report that to the warden. ·9· · · · · · Q· · · What would the warden's next steps 10· ·be? 11· · · · · · A· · · Well, the warden typically assigns 12· ·an investigator at the facility to go ahead and 13· ·start investigations.· Now, there are times that the 14· ·warden himself and me would do the investigations. 15· ·But most of the time he would take the names and the 16· ·dates and time and we would turn it over to our 17· ·internal investigator, who was a lieutenant.· And he 18· ·would then go out and investigate and talk to the 19· ·people, get written statements from them, witness 20· ·statements. 21· · · · · · · · · It also has to be reported to 22· ·headquarters, which we have an EEO office in 23· ·Richmond at our headquarters.· So once that 24· ·complaint is made -- at that time my contact person Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 6 of 14 Pageid#: 160 ·1· ·was Bob White, and he is no longer with the ·2· ·department, he works in another agency.· But, you ·3· ·know, in the last probably eight, nine years he has ·4· ·been our contact person. ·5· · · · · · · · ·So he would have been the person that ·6· ·I reported it to.· So there was two notifications ·7· ·that would have been made.· It would have been to ·8· ·the warden and to him. ·9· · · · · · Q· · · What sort of disciplinary action can 10· ·arise from that sort of complaint? 11· · · · · · A· · · Well, it would depend on the 12· ·severity or the nature of it.· Most cases it would 13· ·be termination for that employee, if it was founded 14· ·against someone for, you know, making racial slurs. 15· ·Depending on, again, the situation, they could just 16· ·receive a disciplinary action, you know, if -- it 17· ·just depends on how the warden viewed whatever took 18· ·place.· Kind of hard to generalize that, I think, 19· ·but... 20· · · · · · Q· · · The date that you referenced 21· ·speaking to Mr. McCurdy in front of the facility, 22· ·did you ask Mr. McCurdy if he had been subject to 23· ·the same jokes and treatment that Mr. Martinez -- 24· ·Mr. Miles had? Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 7 of 14 Pageid#: 161 ·1· · · · · · A· · · I don't recall that specifically ·2· ·but, I mean, I could have.· But, you know, I felt ·3· ·like Tom and I had a good enough relationship that, ·4· ·you know, he could have told me anything.· I thought ·5· ·a lot and still do think a lot of him.· He was a ·6· ·good employee. ·7· · · · · · Q· · · And you mentioned earlier -- of ·8· ·course tell me if I am mischaracterizing this -- ·9· ·that in that conversation Mr. McCurdy mentioned that 10· ·there were concerns of consequences for speaking 11· ·out.· What did you take that to mean? 12· · · · · · A· · · Well, I felt like that he was saying 13· ·that if Miles came forward and told and said or 14· ·whatever, that he would get -- he said a target on 15· ·his back, you know.· We call that in HR retaliation, 16· ·you know. 17· · · · · · · · · ·And that's one of the things that we 18· ·try to assure our staff of, is there is not going to 19· ·be a target.· There is not going to be retaliation. 20· · · · · · · · · Now, the line staff had a different 21· ·perception of that, you know.· When they're 22· ·considering that, they are thinking, well, I am 23· ·going to get put on a different post or they are 24· ·going to put me on night shift because I have Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 8 of 14 Pageid#: 162 ·1· ·complained or, you know, they will find a way to -- ·2· ·maybe they can't find a way to write me up here, but ·3· ·they can find a way to write me up on this ·4· ·situation. ·5· · · · · · · · · That's kind of the perception on the ·6· ·line staff.· And, you know, we don't look at it that ·7· ·way.· You know, we don't consider that that way.· We ·8· ·think of it as we are not going to allow anything ·9· ·like that to happen to the employee if they come 10· ·forward because -- you know, we are going to make 11· ·sure that employee is protected. 12· · · · · · Q· · · Did you think that there was a 13· ·culture at Red Onion where certain employees were 14· ·seen as snitches? 15· · · · · · A· · · Not that I am aware of. 16· · · · · · Q· · · Did you monitor the social media 17· ·accounts of any of your employees? 18· · · · · · A· · · No. 19· · · · · · Q· · · Do you recall the incident involving 20· ·the logbook? 21· · · · · · A· · · Which logbook? 22· · · · · · Q· · · I can clear that up.· This is 23· ·Exhibit 6.· Do you recall seeing this before? 24· · · · · · A· · · Yes.· Yes, I do. Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 9 of 14 Pageid#: 163 ·1· · · · · · Q· · · Okay.· How did you come to see it? ·2· · · · · · A· · · There was an employee that refused ·3· ·to take a post one day, and her supervisor brought ·4· ·her to the office.· And in the course of discovering ·5· ·what had happened, she refused to take the post ·6· ·because she said the last time that she was up there ·7· ·that this -- she opened the logbook and the logbook ·8· ·when she opened flipping through the pages or ·9· ·whatever, she saw this written in a logbook, "I hate 10· ·niggers." 11· · · · · · · · · ·And that's what she told us that day 12· ·when she came into the office.· Her supervisor 13· ·brought her actually into my office that day. 14· · · · · · · · · And so the first time I saw it was 15· ·after that.· We actually had to meet with her that 16· ·day because an officer cannot refuse to take a post. 17· ·That's really grounds for some sort of disciplinary 18· ·action because it is insubordination, you know. 19· · · · · · · · · So after the fact Warden Mathena and 20· ·I met with her, and then that's when we got this 21· ·logbook.· And they actually brought the logbook up 22· ·to me, is the first time I had seen it, after she 23· ·reported this to us in the office that day. 24· · · · · · Q· · · Okay.· I want to clarify two things Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 10 of 14 Pageid#: 164 ·1· ·real quickly.· One, could you clarify what you said, ·2· ·that an officer cannot refuse to take a post.· Are ·3· ·there situations when an officer can refuse to take ·4· ·a post? ·5· · · · · · A· · · No, not unless it is a life safety ·6· ·or health issue. ·7· · · · · · Q· · · What sort of health issues? ·8· · · · · · A· · · Well, I mean, if they don't feel ·9· ·like they are mentally or physically fit to take a 10· ·post then they are obligated to tell us that so that 11· ·-- you know, you don't want somebody in a control 12· ·room that is not mentally or physically fit to take 13· ·something and they are opening doors and letting 14· ·offenders out, you know. 15· · · · · · Q· · · Sure.· Let me go ahead and also hand 16· ·you Exhibit 7.· Have you also seen this before? 17· · · · · · A· · · I think so.· I am a little bit 18· ·confused.· I know I have seen this one.· Maybe I -- 19· ·I am not sure if I have seen them both, but I know 20· ·this was in one of the logbooks, "I hate niggers." 21· · · · · · · · · ·MR. ERLICH:· When Ms. Conley said 22· · · · · · "this one", she was indicating towards 23· · · · · · Exhibit 7. 24· ·BY MR. ERLICH: Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 11 of 14 Pageid#: 165 ·1· · · · · · Q· · · What you said wouldn't show up on ·2· ·the record. ·3· · · · · · A· · · I'm sorry. ·4· · · · · · Q· · · That's fine.· What was done to ·5· ·investigate this incident? ·6· · · · · · A· · · Well, apparently this had happened ·7· ·at least a year prior to that officer refusing to ·8· ·take a post.· She had discovered this in the ·9· ·logbook, whichever one.· I don't really recall if it 10· ·is Exhibit 6 or 7 that she actually saw, but anyway 11· ·maybe it was both the same thing. 12· · · · · · · · · But she had reported that to her 13· ·supervisor, and the supervisor then I suppose 14· ·reported it to his supervisor.· But there was an 15· ·investigation that was done.· Mr. Mathena -- 16· ·Warden Mathena was made aware of it.· And so he had 17· ·Lieutenant McQueen investigate it. 18· · · · · · · · · So they did the investigation.· They 19· ·said that they tried to look back in the logbook to 20· ·see if they could figure out any handwriting, if 21· ·anything, you know, could match up.· I think that 22· ·the cost of trying to determine, you know, do 23· ·handwriting analysis for so many people that had 24· ·access to the logbook was so much that they kind of Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 12 of 14 Pageid#: 166 ·1· ·let it drop and just say, you know, remove it.· They ·2· ·removed the logbook and that was sufficient in their ·3· ·eyes, so, you know. ·4· · · · · · Q· · · At that time were you the HR ·5· ·manager? ·6· · · · · · A· · · I was the HR manager. ·7· · · · · · Q· · · Okay.· So again, just to sort of ·8· ·clarify what you said.· Am I correct in ·9· ·understanding that you didn't find out about these 10· ·writings in the logbook that say, "I hate niggers" 11· ·until about a year after it was first reported? 12· · · · · · A· · · You are correct. 13· · · · · · Q· · · How is it that the HR manager didn't 14· ·find out for a year? 15· · · · · · A· · · I have no idea. 16· · · · · · Q· · · Who would have been responsible for 17· ·telling you? 18· · · · · · A· · · Well, I would have thought that, you 19· ·know, that the warden have told me.· I mean, you 20· ·know, the investigator didn't always share things 21· ·with me but, you know, I just felt like the warden, 22· ·it probably slipped his mind. 23· · · · · · · · · And there was a possibility that I 24· ·wasn't there when it occurred.· I had had some Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 13 of 14 Pageid#: 167 ·1· ·surgery, been off six, seven weeks or whatever, you ·2· ·know, in the previous year or so, so there was a ·3· ·possibility that I just wasn't there, I don't know. ·4· ·I can't answer for, you know, that, but the warden ·5· ·would have normally told me. ·6· · · · · · Q· · · Sure.· As a question of chain of ·7· ·command and work chart, how would it get to the ·8· ·investigator without going through the HR manager? ·9· · · · · · A· · · Well, the warden, he also -- the 10· ·investigator also answers to the warden, so he would 11· ·investigate anything that the warden would tell him 12· ·to investigate without going through me. 13· · · · · · · · · There was all kind of things 14· ·investigated that I was never aware of.· So that was 15· ·pretty common.· And I had worked for three different 16· ·wardens, so that was a pretty common thing with 17· ·that, too. 18· · · · · · Q· · · But if this had been investigated as 19· ·a human resources issue, you would have been 20· ·involved? 21· · · · · · A· · · I would have been, yes.· I would 22· ·have been involved and I would have known the 23· ·outcome at the time, and we would have followed up 24· ·with a letter informing the employee that, you know, Case 2:16-cv-00017-JPJ-PMS Document 29-2 Filed 05/03/17 Page 14 of 14 Pageid#: 168 EXHIBIT C Case 2:16-cv-00017-JPJ-PMS Document 29-3 Filed 05/03/17 Page 1 of 4 Pageid#: 169 Case 2:16-cv-00017-JPJ-PMS Document 29-3 Filed 05/03/17 Page 2 of 4 Pageid#: 170 Case 2:16-cv-00017-JPJ-PMS Document 29-3 Filed 05/03/17 Page 3 of 4 Pageid#: 171 Case 2:16-cv-00017-JPJ-PMS Document 29-3 Filed 05/03/17 Page 4 of 4 Pageid#: 172 EXHIBIT D Case 2:16-cv-00017-JPJ-PMS Document 29-4 Filed 05/03/17 Page 1 of 4 Pageid#: 173 ·1· ·determined that not all of them had signed in the ·2· ·logbook, because they were, like, on a break or ·3· ·whatever. ·4· · · · · · · · · ·So it was just kind of an ·5· ·impossibility to determine whose handwriting it was. ·6· · · · · · Q· · · Is there a camera that covers that ·7· ·post? ·8· · · · · · A· · · There is, but you wouldn't be able ·9· ·to see who would write in a logbook. 10· · · · · · Q· · · Was a handwriting analysis done? 11· · · · · · A· · · No. 12· · · · · · Q· · · Why wasn't a handwriting analysis 13· ·done? 14· · · · · · A· · · The cost and there was -- you would 15· ·have had to have submitted many, many, many, many 16· ·handwriting analyses. 17· · · · · · Q· · · Was there an evaluation of the cost? 18· · · · · · A· · · I'm not sure. 19· · · · · · Q· · · Do you recall an incident that 20· ·involved a swastika? 21· · · · · · A· · · Yes. 22· · · · · · Q· · · Was there an investigation into that 23· ·incident? 24· · · · · · A· · · There was. Case 2:16-cv-00017-JPJ-PMS Document 29-4 Filed 05/03/17 Page 2 of 4 Pageid#: 174 ·1· · · · · · Q· · · And who ultimately was found to have ·2· ·been responsible for that? ·3· · · · · · A· · · We couldn't make the determination, ·4· ·the investigator couldn't. ·5· · · · · · Q· · · And how was it -- what was done to ·6· ·try to make that determination? ·7· · · · · · A· · · The same thing.· We reviewed the ·8· ·post, who had been in the post, according to the ·9· ·post assignment anyway at the beginning of the day. 10· ·Like I say, people can come in and out of there. I 11· ·think that the investigator looked at that, but 12· ·couldn't determine who might have been in there to 13· ·etch -- it was actually etched into the control 14· ·panel. 15· · · · · · Q· · · When was the swastika discovered? 16· · · · · · A· · · When CO Knoskie assumed the post on 17· ·her shift. 18· · · · · · Q· · · Approximately what year? 19· · · · · · A· · · Gosh, I don't recall.· '5, '6, 2005, 20· ·'06, maybe '07. 21· · · · · · Q· · · Was it the same post that the 22· ·logbook was defaced at? 23· · · · · · A· · · Not to my knowledge. 24· · · · · · Q· · · What steps were taken after the Case 2:16-cv-00017-JPJ-PMS Document 29-4 Filed 05/03/17 Page 3 of 4 Pageid#: 175 ·1· ·swastika to avoid further racial incidents at posts? ·2· · · · · · A· · · You mean what did we do to correct ·3· ·that situation? ·4· · · · · · Q· · · I mean, what did you do on a moving ·5· ·forward basis to avoid further incidents? ·6· · · · · · A· · · Well, we -- I am not sure what you ·7· ·mean exactly. ·8· · · · · · Q· · · I mean, after a swastika was ·9· ·discovered, were there policy changes to avoid 10· ·further incidents, further racial incidents at post? 11· · · · · · A· · · There weren't any policy changes 12· ·made.· I believe that the warden at the time, which 13· ·was Tracy Ray, actually discussed it during 14· ·supervisors' meetings or maybe even briefing. 15· · · · · · Q· · · Okay.· After the swastika incident, 16· ·were there additional cameras or additional 17· ·monitoring or anything else put in to avoid further 18· ·racial incidents at post? 19· · · · · · A· · · No, not to my knowledge. 20· · · · · · Q· · · After the logbook incident, were 21· ·there additional cameras or additional policy 22· ·changes made to avoid further racial incidents at 23· ·post? 24· · · · · · A· · · No, not to my knowledge. Case 2:16-cv-00017-JPJ-PMS Document 29-4 Filed 05/03/17 Page 4 of 4 Pageid#: 176 EXHIBIT E Case 2:16-cv-00017-JPJ-PMS Document 29-5 Filed 05/03/17 Page 1 of 2 Pageid#: 177 McCurdy 000066Case 2:16-cv-00017-JPJ-PMS Document 29-5 Filed 05/03/17 Page 2 of 2 Pageid#: 178 EXHIBIT F Case 2:16-cv-00017-JPJ-PMS Document 29-6 Filed 05/03/17 Page 1 of 2 Pageid#: 179 McCurdy 000148Case 2:16-cv-00017-JPJ-PMS Document 29-6 Filed 05/03/17 Page 2 of 2 Pageid#: 180