Wilken v. Cascadia Behavioral Healthcare, Inc.

Motion in limine of Plaintiff. Oral Argument requested.

D. Or.June 9, 2008

Stephen L. Brischetto, OSB No. 78156 Attorney at Law slb@brischettolaw.com 806 SW Broadway, Suite 400 Portland, Oregon 97205 TELEPHONE: (503) 223-5814 FAX: (503) 228-1317 Michael R. Seidl, OSB No. 83319 mseidl@landye-bennett.com LANDYE BENNETT BLUMSTEIN LLP 1300 SW Fifth Ave., Suite 3500 Portland, Oregon 97201 TELEPHONE: (503) 224-4100 FAX: (503) 224-4133 Of Attorneys for Plaintiff Janette M. Wilken IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JANETTE M. WILKEN, an individual, Case No. CV 06195 ST Plaintiff, PLAINTIFF'S MOTIONS IN LIMINE vs. ORAL ARGUMENT REQUESTED CASCADIA BEHAVIORAL HEALTHCARE, INC., an Oregon non- profit corporation, Defendant. Plaintiffmoves the court in limine as follows: I. Precluding defendant from offering any evidence on defendant's affinnative defenses to the Seventh Claim for Relieffor regular and overtime wages. 2. Precluding defendant from offering any evidence related to plaintiffs alleged sexual contact unknown to defendant prior to tennination and not in the presence of others. __________ J Mot.LImine.doc STEPHEN L BRISCHETTO ATfORNEYATLAW 806 S. W; Broadway, Suite 400 Portland, Oregon 97105 _____________ ___._. ._. . ~__, ._.I!kP!!E!!f!:_Jff!lJL?~l:SfJ.1 4. ~__._. .._ [PageT --:'··PLAINTIFF'·S MOTIONSINLIMINK I Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 1 of 35 1. This Court Should Preclude Defendant From Offering Evidence Supporting Affirmative Defenses In The Pre-Trial Order To Plaintiff's Wage And Overtime Claims In the Pre-Trial Order, defendant alleged the following contentions in response to plaintiffs Seventh Claim for Relieffor regular and overtime wages: "Some or all of plaintiffs claims are barred by the doctrines of wavier (sic), estoppel, ratification, acquiescence, accord and satisfaction, settlement, consent, agreement, payment and release." Pre-Trial Order at 12. These contentions are apparently supported by contentions that plaintiff knowingly and/or voluntarily submitted to any alleged wage violation and knowingly failed to notify Cascadia that she was engaging in overtime work. Pre-Trial Order at 12. Defendant should be precluded from offering evidence relating to these three contentions for two reasons. First, the parties litigated summary judgment motions as to plaintiffs wage and hour claims. This court has already established that defendant is liable to plaintiff for wage and overtime violations. In Magistrate Stewart's Findings and Recommendations she granted plaintiff's motion for summary judgment establishing "Cascadia's violation ofORS 653.261 and the Fair Labor Standards Act ("FLSA"), 29 USC § 207, by failing to pay Wilken regular and overtime wages for the period she was misclassified as exempt from February 9,2004, to June 30, 2005 ..." Findings and Recommendations at 62 (August 10, 2007). The only remaining issues on the wage and overtime claims are: the amount of wages due plaintiff and whether defendant is liable for liquidated damages, interest and penalties. Findings and Recommendations at 62-63. Defendant filed no objections to Magistrate IPage2:'PLAI:NTIFF'S MOTIONSI:I,rLIMIN'iC"-- , STEPHEN L. BRISCHETTO ATTORNEY ATLAW 806 S. W. Broadway, Suite 400 Portland, Oregon 97205 l'eleph.o_ne_~JJ!J}Lll3-5814 __~ __ .._ Mot.Limine.doc --I I . 1 Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 2 of 35 Stewart's Findings and Recommendations. Subsequently, the court accepted Magistrate Stewart's Findings and Recommendations. Opinion and Order (October 5,2007). If defendant had legal authority to support any ofthe 9 affirmative defenses to liability on the wage and overtime claims (and if defendant had evidence to support such defenses to liability) it should have been raised in response to plaintiffs motion for summary judgment and as an objection to Magistrate Stewart's recommendation of a finding ofliability. Defendant did not offer any evidence or argument supporting any of these claimed affirmative defenses to liability in response to plaintiffs motion. As a result, all ofthese affirmative defenses to the wage and overtime claims have been waived. Defendant's liability for violation of wage and overtime laws is the law of the case. Second, seven of the 9 affirmative defenses defendant placed in the Pre-Trial Order: ratification, acquiescence, accord and satisfaction, consent, settlement, agreement, payment and release were not pleaded in either defendant's Answer to the complaint or Answer to the amended complaint. I These affirmative defenses are barred because defendant failed to raise them in defendant's responsive pleading. See, FRCP8(c)(I)(requiring party to affirmatively state in response to a pleading any avoidance or affirmative defense including accord and satisfaction, laches, payment, and release). Every defense to a claim for relief must be asserted in the responsive pleading if one is required other than those defenses set forth in FRCP 12(b). III 1 Defenses of waiver and estoppel are raised in both of defendant's responsive pleadings. Defendant's Eleventh Affirmative Defense. rPage 3... ~ PLAINTIFF'S MOTfONSINIIMINK----- Mot.Limine.doc STEPHEN L BRISCHETTO ATTORNEYATUW 806 S. JY. Broadway, Suite 400 Portland, Oregon 97105 r.elt;p_h~.!l.J~!!}111JM58lf__~________ ___.. ~_._. __,. . _ See, Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 3 of 35 Mot.Limine.doc --- ----- -------~~ Plaintiff does not consent to trying these new affirmative defenses which were not properly alleged as a part of defendant's Answer to the Complaint and the Amended Complaint. This case was filed in February 2006. Defendant filed its Answer in April 2006. Plaintiff filed her Amended Complaint in January 2007. Defendant filed its Answer and Affirmative Defenses to the Amended Complaint in January 2007. Each party filed summary judgment motions in March 2006 which were decided in October 2007. As a result of plaintiffs Motion for Summary Judgment, plaintiff obtained partial summary judgment against defendant on wage and overtime claims. Plaintiff filed a second Motion for Summary Judgment in August 2007. Plaintiffs second Motion for Summary Judgment sought, and obtained, summary judgment against the affirmative defense of after acquired evidence ofmisconduct which defendant raised in defendant's Answer to the Amended Complaint. Plaintiff's second Motion for Summary Judgment was resolved in January 2008. Plaintiff will be prejudiced by allowing these defenses to be added at this late stage of the case. The parties completed discovery and litigated three summary judgment motions prior to defendant's raising these affirmative defenses as a part of the pre-trial order. Plaintiff would be deprived of discovery and the opportunity to file motions for summary judgment (or compelled to further delay trial to seek discovery and litigate additional summary judgment motions), if these new affirmative defenses are permitted. Both options subject plaintiff to undue prejudice. Furthermore, defendant never attempted to raise these affirmative defenses in a procedurally proper manner by seeking leave to file an amended answer. Rather, defendant sought to raise these new affirmative defenses without seeking leave from the court. IPage4~PtAINTIFF'S I\fOTIONS-Iin:fMINJC----- i STEPHEN L BRISCHETTO , ATTORNEYATLAW 806 S. W; Broadway, Suite 400 Pon/lInd, Oregon 97205 ________ ~_. ,_,.,._,. . _~. ~ T!.!!p!!!!.!'~:. (~f!3)ll~:~_814 . ..,__. _ Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 4 of 35 Since these affirmative defenses were not timely raised and since adding them at this late date subjects plaintiff to undue prejudice, defendant should be precluded from offering evidence to support the new defenses. Because plaintiff sought and obtained summary judgment establishing defendant's liability for wage and overtime violations and defendant offered no legal authority or evidence to support an affirmative defense to liability and because all but two of the claimed affirmative defense were not asserted in responsive pleadings or in a motion to amend, defendant should be precluded in limine from offering evidence to support the three contentions. 2. Precluding Defendant From Offering Alleged Evidence Of Sexual Contact Unknown Prior To Discharge And Outside The Presence Of Others In defendant's Motion for Summary Judgment defendant sought to offer deposition testimony relating to alleged sexual contact between Ms. Wilken and Ms. Padilla at the workplace but not in the presence of others. Excerpts of the challenged deposition testimony are attached to this Memorandum. There are two instances of such contact which defendant sought to offer in litigating the summary judgment motions.. First, there was testimony in depositions that plaintiff and Ms. Padil\a kissed on one occasion while alone in a locked bathroom on the premises at Cascadia in approximately January 2005. Wilken Dep 234, lines 20-22; 235, lines 1-13; Padilla Dep 47, lines 19-25; 48, lines 1-6. Second, defendant offered deposition testimony and excerpts of a personal notebook the two women maintained of a second incident that occurred on the premises late after normal work hours ended between Ms. Wilken and Ms. Padil\a in approximately May 2005. Mot.Limine.doc STEPHEN L. BRISCHETTO ATTORNEYATLAW 806 S. W. Broadway, Suite 400 Portland, Oregon 97205 c .•__~ ...__• __ ._ .._~ •__. __,..• _, •.. • I!kP.hone:_(~!!lL~?l~581f Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 5 of 35 With respect to the second incident, there was testimony in deposition that late after normal work hours while alone at work, the two women were making fun of the rules being imposed on them by their supervisors. Ms. Wilken sat on a desk to see if she could hide in a 3 inch space, Ms. Padilla walked towards her and spread her legs out exposing her clothed genital area and at that point the women decided they needed to take this home. Padilla Dep 65-66. Wilken Dep 260-261. Ms. Wilken testified that its possible that she may have touched Ms. Paddilla between her legs outside her clothing. Wilken Dep 261, lines 15-16. With respect to both instances, the testimony and documents supporting each of the incidents should be excluded because both instances are irrelevant under FRE 40I, because any marginal relevance of the evidence is outweighed by the prejudicial effect of both instances under FRE 403, because both instances are character evidence offered to show action in conformity therewith under FRE 404(b), because both instances are specific acts of conduct offered to attack the witness' character for truthfulness under FRE 608 and because defendant will be unable to satisfy its burden to show admissibility of such evidence under FRE 412. Under FRE 401, the evidence is irrelevant to any issue in the case. With respect to plaintiff's claims of retaliation and discrimination, the portions of these claims that remain after summary judgment relate only to the adverse employment decision of plaintiff' s termination in November 2005. See, Pre-Trial Order, Claims One through Four. On these termination claims, defendant "contends that plaintiff was terminated for taking home tax credit files." Pre-Trial Order, at 3. All ofplaintiff's claims asserting that she was subjected to harassment or intentional infliction of emotional distress have been dismissed on defendant's motion for summary judgment. See, Findings and Recommendations at 63 (August 10, 2007) Page 6 -:: PLAINTIFF'S MOTIONS IN LIMINE-- Mot.Limine.doc STEPHEN L BRlSCHETTO AITORNEYATLAW 806 S. If: BJ'OIIdway, Suite 400 Port/lind, Oregon 97205 T!.-JJ!P!r_t?!!!!L"(~!ll), ..U.J.:~~H__ Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 6 of 35 (recommending dismissal ofhostile workplace claims and intentional infliction claims). Furthermore, the court ruled found that any different treatment ofplaintiffby defendant, other than plaintiffs discharge, was not sufficiently severe to constitute an adverse employment decision. See, Findings and Recommendations at 44 (stating any claimed different treatment was not sufficiently severe to be an adverse employment decision). Thus, the disputed factual issues on plaintiffs claims ofretaliation and discrimination are whether plaintiff and Ms. Padilla made complaints of discrimination and whether defendant terminated plaintiffbecause of her complaints of discrimination, because of her lesbian relationship with Ms. Padilla or because took home tax credit files. Neither of the incidents of alleged sexual contact has any tendency to prove whether defendant terminated plaintiffbecause she took her tax credit files. Because both of the incidents of claimed sexual contact were unknown to defendant prior to plaintiff s termination and because neither incident occurred in the presence of any other person, neither incident has any bearing on the factual issues in the case. The Ninth Circuit has held that "information about [plaintiff] which was unknown to [defendant] at the time the decision was made could not have entered into the calculus ofthe decision and would be entirely irrelevant. Norris v City and County ofSan Franciso, 900 F2d 1326, 1331 (9th Cir 1990). Thus, evidence of the two incidents is irrelevant to any issue in the case. Neither of the incidents is relevant to any issue of after acquired evidence of misconduct. Defendant asserted an affirmative defense of after acquired evidence ofmisconduct unrelated to any allegations that there was sexual contact between the two women in these two incidents. However, the court granted plaintiffs second motion for summary judgment against iPSge7- - PLAINTfFF'SMOfIONS IN LIMINESTEPHEN L. BRISCHETTO, ATTORNEYATLAW I 806 S. If. Broadway, Suite 400 I Portland, Oregon 97205 :L ~_~ . .~._. Telep!!l!."e"J~'!.}1213-58J4 Mot.Limine.doc I I ___~~__J Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 7 of 35 the after acquired evidence of misconduct claim. Thus, there is no affirmative defense in the case related to after acquired evidence. Second, under FRE 412, if defendant attempts to offer evidence of sexual behavior or sexual predisposition to establish sexual misconduct, such evidence is subject to the more stringent rules of admissibility under FRE 412. FRE 412 switches the burden of showing admissibility to the party offering the evidence rather than to the party seeking to exclude the evidence. Additionally, FRE 412 raises the threshold for admissibility of the evidence by requiring the proponent to show that the probative value ofthe evidence substantially outweighs the specified dangers of the evidence. BKB v Maui Police Dept., 276 F3d 1091, 1104 (9th Cir 2002). These two incidents occurred either in a private setting or at a time when others were not present (in a locked bathroom and late in the evening after normal work hours). Thus, they have no bearing on what the women would do during work hours in the presence of others. The two incidents were remote in time from the termination occurring between six and ten months prior to termination. Further, the disputed issues in the case focus on whether defendant discriminated against plaintiffby terminating her employment for taking home tax credit files not on issues as to whether defendant terminated or disciplined plaintiff for inappropriate contact with her partner in the workplace. Under FRE 403, if these two incidents have any marginal relevance, the relevance is outweighed by the unfairly prejudicial effect of the evidence. Defendant's arguments and evidence relating to both incidents are highly inflammatory and have the potential to unfairly prejudice a jury against plaintiff when weighed against any marginal relevance of the STEPHEN L BRISCHETTO A TTORNEY AT LA W 806 S. W. BroadwtlJ', Suite 400 Portland, Oregon 97105 __re!~J!.!lOneUl!m...J23-581L _ Mot.Llmlne.doc -- --1 I ________J Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 8 of 35 evidence. There may be jurors who would be prejudiced against the plaintiffby hearing arguments focusing on descriptions of alleged sexual contact between two women. There may be jurors who believe that evidence of claimed misconduct unknown at the time of termination should influence the decision. There may be jurors who apply prejudices relating to such evidence in awarding the amount of damages. Thus, the evidence suggests an improper basis for a jury decision. Finally, under FRE 404(b) and 608 the evidence is evidence ofother wrongs offered to prove that plaintiff acted in conformity therewith on other occasions or the evidence is an attempt to attack plaintiffs character for truthfulness through specific incidents of conduct. Defendant will argue that ifplaintiff engaged in some form of inappropriate contact in the workplace on these two occasions this evidence is relevant to show that plaintiff and Ms. Padilla engaged in different kinds of inappropriate contact in front ofothers in the workplace. Under FRE 404(b) and 608 this evidence is not admissible for such a purpose. This court should preclude defendant from offering alleged evidence of sexual contact unknown prior to discharge or occurring outside the presence ofothers. SUMMARY For the reasons set forth above, this court should grant both ofplaintiffs motions in limine. DATED this 9th day of June, 200 . l-page-9--:--PLAIN1TFF'S MOTIONS7ffiJJflNE------' STEPHEN L. BRlSCHETTO ATTORNEY AT LAW 806 S. Iv. BroadWiIJI, Suite .j00 Portland, Oregon 97105 _ _ . _J~~p!Jone: (~!WI2~~H_ Mot.Llmlne.doc I I I __J Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 9 of 35 , ;~")' 1 2 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON 4 5 6 7 8 9 10 11 )' 12 13 14 JANETTE K. WILKEN, an individual, plaintiff, v. CASCADIA BEHAVIORAL HEALTHCARE, INC., an Oregon non-profit corporation, Defendant. ) ) ) ) ) ) No. 06195 ST ) ) ) l Certified Copy ) ) 15 16 17 18 19 20 21 22 23 24 25 VIDEOTAPED DEPOSITION OF BEVERLY PADILLA VOLUlIIE I (Pages 1 through 153) Taken on behalf of the Defendant February 27, 2007 MCJDRE HENDERSON ALLEN & THOMAS Professional Court Reporting & Videography ,m "WM,","_ """",". ""'-".=m"lel-~",-_.,~_.. EXHIBIT LL. P.l49 Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 10 of 35 47 A. No. MR. LIVELY: Can we take a break? A. No. It better be no. Cascadia. (Continuing) Q. That's what I'm asking. Q. Did you have any personal relationships A. That was before we were actually a couple, In your relationship with Ms. Wilken A. There might have been an occasion in the Q. Okay. Before we left off, Ms. Padilla, we (Pause in deposition: 1:33 - 1:41 p.m.) Q. When was that? premises, meaning in the administration building? other intimate relationships with an employee of during the time she was employed with Cascadia, did talked about the fact that you hadn't been in any BY MR. LIVELY: it was before we were a couple. so it was before February of 'OS. I don't know -- I admin building in a locked bathroom. with anyone else at Cascadia since the time that you worked for the company? you ever kiss Ms. Wilken on Cascadia's work don't remember the day or the time or the month, but ) 13 :32 :31 1 13:32:34 2 13:32:36 3 13:32:37 4 13:32:41 5 13:32:42 6 13:32:48 7 13:32:49 8 13:41:23 9 13:41:25 10 13:41:46 11 )1:52 12 13:41:56 13 13:41:59 14 13:42:00 15 13:42:04 16 13:42:06 17 13:42:12 18 13:42:16 19 13:42:24 20 13:42:28 21 13:42:33 22 13:42:37 23 1,,)42:47 24 13:42:49 25 MOORE HENDERSON & THOMAS (503) 226-33EXH1BtT iL, P.~ 7' Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 11 of 35 ) 13:42:52 13:42:54 13:42:54 13:42:57 13:42:58 13:43:00 13:43:05 1 2 3 4 5 6 7 Q. A. Q. A. Q. A. Q. Did that -- It wasn't a I'm sorry. It was just a kiss on the cheek. Just a kiss on the cheek? Yeah. Why were you kiss -- having a kiss on the 48 13:43:10 8 cheek in the bathroom? 13:43:12 9 A. We had been trying to make plans to get 13:43:15 10 13:43:20 11 J b: 23 12 13:43:29 13 13:43:34 14 13:43:37 15 13:43:41 16 13:43:44 17 together to go out for coffee, and because of her schedule, she was often out of the building, because of various things in the billing department, I was busy as well, so we made some time after work to meet in the bathroom which was on the other side of the admin building that had a lock on it, and we met in there to talk about making plans for getting together for coffee. 13:43:46 18 Q. Why did you feel that you needed to meet 13:43:48 19 in a locked bathroom to make plans to have coffee? 13:43:53 20 13:43:58 21 A. Q. It was a private conversation. Other than a kiss on the cheek during the 13:44:03 22 l"l,44:0723 ) l::s:44:09 24 13:44:12 25 incident in the bathroom A. Excuse me, can someone turn off that heater. It's really hot in here. Thank you. Thanks. MOORE HENDERSON & THOMAS (503) 226- 331£XHIBfl 1L.. p.~i Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 12 of 35 ) 13:57:08 1 A. When our attorney showed it to us. I 57 13:57:11 2 don't know when that was. 13:57:13 3 Q. Well, I don't want you to talk to me about 13:57:14 13:57:16 13:57:21 13:57:28 4 5 6 7 what your attorney did. I'm wondering if prior to the deposition, if you've ever seen the notebook that Exhb. 68 came out of. I 13:57:29 13:57:30 8 9 A. Q. Of course I have. That's what I'm trying to figure out. 13:57:32 10 13:57:37 11 When I say "a copy of 68," I mean if you've ever seen what's written in Exhb. 68 before. )7:40 12 13:57:40 13 A. Q. Yes. Okay. Is this part of the notebook that 13:57:42 14 13:57:45 15 you talked about that you purchased so that you and Ms. Wilken could write back and forth to each other? 13:57:48 16 13:57:50 17 13:57:55 18 13:57:55 19 13:57:57 20 13:57:59 21 A. Q. A. Q. A. Q. It looks like it. Okay. And where was the notebook kept? with us. Either one of you? Yes. And does that mean it occasionally 13:58:02 22 13:58:03 23 ). 1..,:58:11 24 13:58:16 25 traveled to work? A. It might have been in the Titan. Q. Did you ever write notes to Ms. Wilken in that in the notebook while you were at the MOORE HENDERSON & THOMAS (503) 226-3313EXHI81T A .P.~ Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 13 of 35 ) 14:05:07 1 14:05:12 2 14:05:21 3 14:05:24 4 14:05:27 5 14:05:31 6 14:05:31 7 14:05:32 8 14:05:32 9 14:05:34 10 14:05:39 11 )5:42 12 14:05:46 13 14:05:47 14 14:05:55 15 14:05:58 16 14:06:01 17 14:06:33 18 14:06:33 19 14:06:38 20 14:06:40 21 14:06:41 22 14:06:43 23 1 .. )06: 51 24 14:06:58 25 63 employee appreciation picnic, but the rest of the time, she would continue harassing both of us and I didn't want to go and I made that clear to her. Q. Was the picnic something that all your coworkers in the billing department were invited to? A. Yes. Q. As well as you? A. Yes. Q. Did you attend the picnic? A. Absolutely not. Q. Are you aware of whether any of your other coworkers in the billing department failed to attend the picnic? A. I don't know. Q. MS. Padilla, I'd like you to look at what's been marked as Exhb. 72. Once you're finished reading it, please let me know. A. Okay. Q. Prior to today, have you seen Exhb. 72 as part of a notebook? A. Yes. Q. And do you recall whether you received it on or around 6-21 of 'OS, or 5-21 of 'OS? A. I think it's May. Q. 5-21 of 'OS? MOORE HENDERSON & THOMAS (503) 226- 331txHIBIl 8-.. P.-4~ Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 14 of 35 ) 14:06:58 1 14:06:58 2 14:06:59 3 14:07:01 4 14:07:01 5 14:07:05 6 14:07:08 7 14:07:08 8 14:07:12 9 14:07:16 10 14:07:16 11 )7:17 12 14:07:22 13 14:07:28 14 14:07:31 15 14:07:34 16 14:07:38 17 14:07:43 18 14:07:53 19 14:07:55 20 14:07:58 21 14:08:01 22 14:08:04 23 >. 241.. :08:12 14:08:16 25 64 A. I think so. Q. And was it your understanding that the contents of Exhb. 72 was addressed to you? A. Yes. Q. And do you recognize Exhb. 72 as being Ms. Wilken's handwriting? A. Yes. Q. And do you recall the event that is referenced on the first page of Exhb. 72? A. Yes. Q. What do you recall about that? A. It was a night that Janette was working late on some files that she needed to get done and she was in the housing department, and since I wasn't allowed to be in there, I was in the billing department just -- I don't remember what I was doing, just killing time. Q. Do you recall anything else about that? How did you prove that it's possible to hide in three inches of wall space? A. When Janette was done for the evening, it was pretty late, so she came over to the billing department to get me to go home, and this hiding in three inches of wall space, we were making fun of the rule that Audrey had instituted that Janette MOORE HENDERSON & THOMAS (503) 226-331aHfSrr fl..-. p~~ Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 15 of 35 65 measured out to be three inches, so neither one of left side, there was the three inches of wall see if I could hide, and low and behold, it wasn't we were tired, we both wanted to go home, and at in the corner I had measured the part of the wall that Q. What is the reference to your pearl being A. Well, I think what she might have been was on the desk, she walked towards me and spread my exposed? talking about there was that in the position that I wall space, so I was sitting on the hanging out, so I was sitting in that area trying to that wraps around, and where it wraps around on the possible for either one of us to do that. legs out with her hands and, you know, it was late, fact, it was possible to hide in three inches of fact, possible to hide. of my cubicle -- it's not a desk so much as a space us being small people, we were going to see if, in hiding, and if she were seen as hiding in my cubicle, people might think that we were doing Audrey claimed that Janette could hide behind and it something, so we were trying to see if it was, in desk, because people might think that she was couldn't come into my cubicle and lean against my ) 14:08:20 1 14:08:24 2 14:08:27 3 14:08:31 4 14:08:34 5 14:08:37 6 14:08:39 7 14:08:42 8 14:08:47 9 14:08:50 10 14:08:54 11 )8:57 12 14:09:01 13 14:09:08 14 14:09:11 15 14:09:13 16 14:09:16 17 14:09:20 18 14 :·09: 29 19 14:09:32 20 14:09:38 21 14:09:41 22 14:09:44 23 ) 1 .. :09:54 24 14:10:02 25 MOORE HENDERSON & THOMAS (503) 226-331:£XHfBff fl..., p.4J Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 16 of 35 ) ~4:~0:05 ~ ~4:~0:09 2 ~4:~0:~~ 3 ~4:~0:~4 4 ~4:~0:~6 5 ~4:~0:2~ 6 ~4:~0:29 7 ~4:10:32 8 14:10:37 9 14:10:41 10 ~4:10:45 11 lO:48 12 ~4:10:50 13 ~4:10:55 14 14:10:59 15 14:11:00 16 14:11:08 17 ~4:11:10 18 14:11:18 19 14:11:20 20 14:11:24 21 14:11:28 22 ~4:~1:31 23 ) 1,.:11:49 24 ~4:11:55 25 66 that point, I just said, "We need to take this home." Q. When you say "We need to take this home," what does that mean? A. Well, I picked up from Janette that she was maybe in a romantic mood. I wasn't going to do anything. We weren't going to do anything there at work and we didn't. We -- she basically just put her hands on my knees, spread my legs apart. I don't remember if she -- she might have run her hand down the inside of my leg or something, I don't remember what happened after that, but I remember I grabbed her hand and said, "Let's go home." Q. Was Ms. Wilken pressed up against you at that time? A. I don't remember. She might have been. Q. Do you recall whether Ms. Wilken during this incident touched you in the genital area? A. It's possible that her hand might have gone down that far. Like I said, I think she ran her hand down the inside of my thigh. She might have reached that area, but that's as far as it went. Both of us were fUlly clothed. Q. Okay. You can set that aside. And Ms. Padilla, I'd like you to look at MOORE HENDERSON & THOMAS (503) 226- 331fXHr8ff ..f:L, P.~'i Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 17 of 35 ) 1 STATE OF OREGON ) 2 county of Multnomah ) 3 Certified Copy 153 ) 4 I, Aaron M. Thomas, Certified Shorthand 5 Reporter, Registered professional Reporter t and 6 Notary Public for the State of oregon, do hereby 7 certify that BEVERLY PADILLA personally appeared 8 before me at the time and place mentioned in the 9 caption herein; that the witness was by me first 10 duly sworn on oath and examined upon oral ~1 interrogatories propounded by counsel; that said examination, together with the testimony of said 13 witness, was taken down by me in stenotype and 14 transcribed through computer-aided transcription; 15 and that the foregoing transcript constitutes a 16 ,full, true and accurate record of said examination 17 of and testimony given by said witness, and of all 18 other oral proceedings had during the taking of said 19 deposition, and of the whole thereof. 20 Witness my hand and Notarial seal at this 5th day of March, 2007. ) 21 22 23 24 25 MOORE HENDERSON Aaron M. Thomas oregon CSR 04-0388 & THOMAS (503) 226-33txH1B1f -=.. P.~~ Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 18 of 35 -", 1 2 3 215 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON 4 5 6 7 8 9 10 11 12 13 14 JANETTE M. WILKEN, an individual, Plaintiff, v. CASCADIA BEHAVIORAL HEALTHCARE, INC., an Oregon non-profit corporation, Defendant. ) ) ) ) ) ) No. 06195 ST ) ) ) ~ Certified Copy ) ) ) 15 16 17 18 19 20 21 22 23 24 VIDEOTAPED DEPOSITION OF JANETTE M. WILKEN VOLUME II (Pages 215 through 289) Taken on behalf of the Defendant February 27, 2007 M®RE HENDERSON ALLEN & THOMAS Professional Court Reporting & Videography '" "W """",~, .U" M",<~,~ _ _ .,"'~~_, ~~m",w 25 EXHIBIT I p·14fb Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 19 of 35 ) ~0:OO:35 ~ ~0:00:37 2 ~0:00:40 3 ~0:00:4~ 4 ~0:00:46 5 ~0:00:50 6 ~0:00:54 7 ~0:00:55 8 ~O:O~:OO 9 ~0:0~:03 ~O ~0:0~:06 ~~ :.. b1:09 ~2 ~0:0~:09 ~3 ~0:0~:~2 ~4 ~0:0~:~4 ~5 ~0:0~:23 ~6 ~0:0~:23 ~7 ~0:0~:23 ~8 ~0:0~:23 ~9 ~0:0~:27 20 ~0:0~:29 2~ ~0:0~:30 22 In'0~:3~ 23 ) ~O:0~:32 24 ~0:0~:33 25 224 Q. And do you know where you were when you gave Exhb. 68 to Ms. Padilla? A. I don't recall. Q. And were the statements made in Exhb. 68 accurate at the time that you made them? A. Yes. Q. Now, I will submit to you that based on the information that we received regarding this note, it looks like there's notes from you and from Ms. Padilla, I don't know if they're going back and forth, but in your hand and I'm assuming in your hand. Was -- the notebook that contained -- it looks like a spiral notebook that contained Exhb. 68, was that something you and Ms. Padilla shared? A. Yes. Q. Would it be something, for lack of a better word, that was passed back and forth between you and Ms. padilla? A. Yes. Q. And was that generally passed back and forth at work? A. No. Q. Where would the notebook be passed back . MOORE HENDERSON & THOMAS (503) 226- 33L£xHfBrr B ,P.2~/~ Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 20 of 35 ) 10:01:35 1 225 and forth? 10:01:36 10:01:37 10:01:39 10:01:41 10:01:43 2 3 4 5 6 A. Q. with you? A. Q. At any time. Was it something that one of you carried One or the other. Okay. I'm just trying to understand if 10:01:45 10:01:48 7 8 Exhb. 68 was a notebook that was kept at work or carried with somebody or how that -- how that went. 10:01:57 9 10:01:58 10 10:01:59 11 A. Q. I don't understand your question. Sure. It looks like Exhb. 68 is part of a spiral ~2:02 12 10:02:05 13 10:02:10 14 10:02:13 15 10:02:16 16 10:02:20 17 notebook, and what 1 1 m wondering is was that spiral notebook something that either you or Ms. Padilla kept on yourselves at all times and traveled with one of you, or was it something that was left in a drawer at work or something other than one of those two? 10:02:21 18 A. It was it traveled with us. We would 10:02:24 19 10:02:28 20 take it wherever we went, whether that be to work or to the beach. 10:02:29 21 Q. Okay. So it might have gone to work, but 10:02:33 22 it might have Exhb. 68 might have gone to work or 10:02:36 23 ) lu:02:38 24 it might have gone other places as well? A. Yes. 10:02:38 25 Q. The binder, I should say, the notebook. MOORE HENDERSON & THOMAS (503) 226- 331bHIBll B-1 P.~h Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 21 of 35 ) 10:04:16 1 10:04:17 2 10:04:20 3 10:04:21 4 10:04:22 5 10:04:23 6 10:04:24 7 10:04:28 8 10:04:39 9 10:04:41 10 10:04:47 11 b4:54 12 10:04:56 13 10:05:00 14 10:05:05 15 10:05:07 16 10:05:07 17 10:05:10 18 10:05:13 19 10:05:15 20 10:05:18 21 10:05:22 22 11'l:05:23 23 ) 1u:05:26 24 10:05:29 25 227 mean anything to you? A. No. Q. So why did you write it? MR. BRISCHETTO: Objection; asked and answered. Go ahead. A. This is a personal diary, what's written in it is -- part of it is to console each other. I don't want her to feel bad about something or to take it on and have to, you know, be angry about something, so in a sense, I'm trying to console so that she doesn't feel so bad. Q. And the "she" is Ms. Padilla? A. Ms. padilla, yes. Q. So let me make sure that I understand this. Even though you didn't necessarily agree personally with the statement that in the grand scheme of things, this didn't mean anything to you, you were writing that in your diary to essentially help Ms. Padilla feel better about the situation? MR. BRISCHETTO: Objection; asked and answered; inaccurate summary of the testimony. Go ahead. A. The thing that was important was us and MOORE HENDERSON & THOMAS (503) 226-3313EXH'BIl ..B... P.~$ Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 22 of 35 ) ~0:~4:43 ~ ~0:~4:52 2 ~0:~4:54 3 ~0:~4:58 4 ~0:~5:02 5 ~0:~5:04 6 ~0:~5:07 7 ~0:~5:~0 8 ~0:~5:~2 9 ~0:~5:~6 ~O ~0:~5:20 ~~ • l5:24 ~2 ~0:~5:26 ~3 ~0.:~5:29 ~4 ~0:~5:32 ~5 ~0:~5:40 ~6 ~0:~5:4~ ~7 ~0:~5:44 ~8 ~0:~5:45 ~9 ~0:~5:5~ 20 ~0:~5:55 2~ ~0:~5:59 22 lnf6:02 23 ~0:~6:05 24 ~0:~6:07 25 234 to the time Exhb. 69 was created? A. I - - I don't recall. Q. And had you held hands in the building at the time prior to the time Exhb. 69 was created? A. I don't recall. Q. And had you otherwise touched each other, you and Ms. Padilla, in the building prior to the time Exhb. 69 was created? A. I don't recall. Q. Do you recall if you kissed Ms. Padilla in the building at any time after Exhb. 69 was created? A. I don't recall. Q. Do you recall if you kissed Ms. Padilla in the building at any time while you were employed at Cascadia? A. possibly. Q. And-- A. I believe on one occasion. Q. And do you know when that was? A. I believe it was in the bathroom on the other side of the building before we were together as a couple. Q. What does "in the bathroom on the other side of the building" mean? A. There was a private bathroom that had a IlRIBf ~ 5 t6 MOORE HENDERSON & THOMAS (503) 226-3313 IT .t;:.. ,P.~ Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 23 of 35 ) 10:16:09 1 . 10:16:12 2 10:16:15 3 10:16:18 4 10:16:21 5 10:16:23 6 10:16:24 7 10:16:28 8 10:16:28 9 10:16:31 10 10:16:34 11 :. 16 :39 12 10:16:40 13 10:16:44 14 10:16:46 15 10:16:49 16 10:16:51 17 10:16:57 18 10:16:59 19 10:17:01 20 10:17:05 21 10:17:08 22 '~l7:09 23 10:17:12 24 10:17:15 25 235 lock on it, so if you -- and it was over on the accounting side of the building, so for whatever reason -- Q. And you stated this was before you were together as a couple. My understanding is that you became a couple sometime in February of 2005. Is that accurate? A. Yes. Q. So could this have been January of 2005 that the kissing in the bathroom occurred, or could it have been prior to that? A. Probably. Q. Was it likely that the kissing in the bathroom occurred sometime between December of 2004 and February of 2005? A. Yes. Q. And did anything happen in the bathroom other than a kiss? A. A hug. Q. Anything other than a kiss and a hug? A. We had a conversation about meeting at a coffee shop after work. Q. But no other physical contact other than a kiss MOORE HENDERSON & THOMAS (503) 226-331~'Brr J::)~ • P.0t/fJ Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 24 of 35 ) 10:17:15 1 10:17:16 2 10:17:17 3 10:17:23 4 10:17:25 5 10:17:27 6 10:17:32 7 10:17:35 8 10:17:35 9 10:17:37 10 10:17:39 11 ~7:40 12 10:17:40 13 10:17:42 14 10:17:42 15 10:17:46 16 10:17:49 17 10:17:52 18 10:17:55 19 10:17:57 20 10:17:59 21 10:18:03 22 10:18:10 23 ) 1u:18:15 24 10:18:20 25 236 A. NO. Q. and a hug? Is that a "no"? A. "No." Q. And do you recall holding hands at any times on Cascadia work premises with Ms. Padilla while you worked for Cascadia? A. I don't recall. Q. You just don't recall one way or the other or you don't think it happened? MR. BRISCHETTO: Objection; calls for speculation. Go ahead. A. I don't recall. Q. And do you recall touching Ms. Padilla in any way other than what you've already described in the bathroom at any time during the period that you were employed by Cascadia? A. Yes. Q. Tell me about that, what do you recall? A. There was an evening that I worked late. It was prior to JUly 1st of 'OS, because that was when I changed from a salaried employee to an hourly employee, so I was still hourly, but not -- no, I was still salary, excuse me, not getting paid for MOORE HENDERSON & THOMAS (503) 226-331:£XHIBrr L, P. fJi./h Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 25 of 35 ) 10:lB:24 1 10:1B:29 2 10:1B:31 3 10:lB:36 4 10:1B:40 5 10:lB:45 6 10:lB:50 7 10:lB:54 B 10:19:01 9 10:19:05 10 10:19:1B 11 ~9 :21 12 10:19:29 13 10:19:34 14 10:19:3B 15 10:19:43 16 10:19:56 17 10:20:04 IB 10:20:07 19 10:20:13 20 10:20:23 21 10:20:27 22 10:20:31 23 ) Iv :"20: 32 24 10:20:36 25 237 overtime, but I was there late, it was 9:15, 9:30; somewhere in there. Ms. Padilla was in her department at her cubicle reading a book waiting for me. I was in the housing department working, and when I got done, I walked over to billing and knocked on the door and she answered the door and I said, "Let's go," and she responded in a way that was, you know, "About time," you know, and I felt bad that she had to wait so long for me. I went back over to her cubicle to gather up her things. I'm not -- I'm not recalling what led up to it, but she had leaned up against her desk and we were joking with each other about her hiding behind the three inches of wall that they accused us of hiding behind, and so we were making fun of their rules and so she scooted up on to the desk trying to hide and I came in close to her and I spread her legs apart and, you know, tried to hide in that three inches of wall with her. Q. Did anything else happen other than you spreading her legs apart and trying to hide in that incident? A. I don't recall anything else except that it was time to go home and she looked at me and MOORE HENDERSON & THOMAS (503) 226-3313EXHfBff lS ,P."6~/0 Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 26 of 35 ) 10:20:39 1 10:20:41 2 10:20:47 3 10:20:48 4 10:20:50 5 10:20:52 6 10:20:53 7 10:21:02 8 10:21:04 9 10:21:06 10 10:21:09 11 )1:12 12 10:21:15 13 10:21:24 14 10:21:27 15 10:21:32 16 10:21:39 17 10:21:41 18 10:21:48 19 10:21:52 20 10:21:55 21 10:21:57 22 10:21:58 23 ) 1u :22: 01 24 10:22:07 25 238 said, "Let's go home." Q. Was any part of Ms. Padilla's body exposed during that incident? A. No. Q. Were any part of her clothes removed during that incident? A. No. Q. Other than the bathroom hug and this incident that you've just described, and did you say that was in your office or her office? A. Hers. Q. Any other touching that you and MS. padilla engaged in on the work premises during the time that you were employed by Cascadia? A. I recall one other time when I was at my desk, she came over to talk about -- she made a doctor's appointment for me, I think, and she had her hand on my knee. She was knelt down, you know, next to me and had her hand on my knee so that we could have a private -- you know, a quick, private conversation about the doctor's appointment that she made for me. Q. During that incident, was any part of your or Ms. Padilla's private body parts exposed? A. No. MOORE HENDERSON & THOMAS (503) 226-3313EXHIBIl B . P.t!/;f.?; Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 27 of 35 ) ~0:22:~0 ~ ~0:22:~5 2 ~0:22:~7 3 ~0:22:~9 4 ~0:22:2~ 5 ~0:22:27 6 ~0:22:30 7 ~0:22:33 8 ~0:22:38 9 ~0:22:40 ~O ~0:22:4~ ~~ )3:~9 ~2 10:23:22 13 ~0:23:40 14 ~0:23:42 ~5 ~0:23:43 ~6 ~0:23:45 ~7 ~0:23:46 ~8 10:23:48 19 ~0:23:48 20 10:23:52 21 10:23:55 22 ~n:23:55 23 ) lu:23:57 24 10:23:58 25 239 Q. And were either your or Ms. Padilla's clothes removed during that incident? A. No. Q. Other than the bathroom incident that we've discussed, the incident in her office and this one that you've just related to me with her hand on your knee, any other instances of you and Ms. Padilla touching each other in the workplace while you were employed by Cascadia? A. Not that I recall. Q. Why did you create Exhb. 69? A. I don't know that I can answer that. 1-- it was a brief communication with Bev. Q. You actually just answered my next question. Who was Exhb. 69 written to? A. Bev. Q. Bev Padilla? A. Yes. Q. And did you, in fact, give Exhb. 69 to Bev Padilla while you were employed by Cascadia? A. Yes. Q. And do you know where you were when you drafted Exhb. 69? A. No. MOORE HENDERSON & THOMAS (503) 226-33fXHfBrr Ji.... P.~ 10 Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 28 of 35 ) 10:43:50 1 10:43:52 2 10:43:55 3 10:44:01 4 10:44:37 5 10:44:39 6 10:44:43 7 10:44:44 8 10:44:46 9 10:44:50 10 255 Ms. Wilken, the court reporter has handed you what's been marked as Exhb. 72. I would like you to read it over and let me know when you're finished. A. Okay. Q. And is the handwriting on Exhb. 72 your handwriting? A. Yes. Q. And the date on the top right, it appears to be 6-21-05, but I can't tell if it's 6-21-05 or 10:44:57 11 5-21-05. )4:59 12 Can you tell which date it is? 10:45:02 13 A. I believe it's 6-21-05. :).0:45:05 14 10:45:10 15 10:45:13 16 10:45:13 17 10:45:15 18 10:45:19 19 10:45:22 20 10:45:23 21 10:45:26 22 10:45:33 23 ) 1U:45:36 24 10:45:42 25 Q. And did you create Exhb. 72 on or near 6-21-05? A. probably. Q. Do you have any reason to doubt that you created Exhb. 72 at a time other than on or around 6-21-05? A. No. Q. And where were you when you wrote Exhb. 72? A. I don't recall. Q. And the reference in Exhb. 72 says, "Oh, Babe." MOORE HENDERSON & THOMAS (503) 226_3313EXHfBIT:!1 , P.J!...!l!f.0 Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 29 of 35 ) 10:45:43 1 10:45:45 2 10:45:46 3 10:45:50 4 10:45:52 5 10:45:52 6 10:45:54 7 10:45:58 8 10:46:00 9 10:46:02 10 10:46:03 n ~6:12 U 10:46:15 13 10:46:24 14 10:46:30 15 10:46:33 16 10:46:38 17 10:46:41 18 10:46:48 19 10:46:50 20 10:46:58 21 10:47:01 22 I n '47:09 23 ) 10:47:12 24 10:47:17 25 256 Is that in reference to Ms. Padilla? A. Yes. Q. And did you, in fact, give Ms. Padilla a copy of Exhb. 72? A. Yes. Q. And do you know where you were when you gave Ms. Padilla a copy of Exhb. 72? A. No. Q. Could you have been at work? A. Yes. Q. And at the time you wrote Exhb. 72, were the statements made in that exhibit accurate to the best of your knowledge? A. Accurate within the context, yes. Q. What does that mean, "Accurate within the context"? A. Meaning if someone unrelated would read this, it can sound like something that it may not have been between the two of us. Q. Why did you write Exhb. 72? A. The notebook were personal thoughts between Ms. Padilla and myself. We would write what we wanted to write. Q. Were you describing an event that had occurred in Exhb. 72? MOORE. HENDERSON & THOMAS (503) 226-331~HrBrr~ , P,l211h Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 30 of 35 ) 10:51:07 1 10:51:12 2 10:51:21 3 10:51:27 4 10:51:31 5 10:51:33 6 10:51:38 7 10:51:45 8 10:51:49 9 10:51:51 10 10:51:55 11 1 !1:57 12 10:51:58 13 10:52:00 14 10:52:04 15 10:52:07 16 10:52:21 17 10:52:25 18 10:52:28 19 10:52:29 20 10:52:32 21 10:52:37 22 ,A-S2:41 23 ) 10:52:46 24 10:52:48 25 259 That being said, "work" based on what else is said here was -- again, making reference to their ridiculous rules and assumptions about what we did, you know, behind closed doors or when nobody else was there. Q. So it's your testimony under oath that your use of the term "work" with quotes around it isn't referring to you and Ms. Padilla engaging in conduct at the workplace other than work? A. No. Q. Explain that to me. Actually, move to strike. Are you by using the term "work" with quotes referring to conduct that you and Ms. Padilla engaged in at the workplace. other than work? A. No. Q. The next sentence states, "I think we've proved that" -- excuse me, let me strike that and restart. "I think we proved that it is possible to hide in three inches of wall space. You were very well tucked in that three inches with your 'pearl' exposed." What does the reference that "it is possible to hide in three inches of wall space" MOORE HENDERSON & THOMAS (503) 226-331£XHfarr i3..., Pl~6 Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 31 of 35 ) 10:52:53 1 10:52:53 2 10:52:56 3 10:53:00 4 10:53:04 5 10:53:07 6 10:53:10 7 10:53:13 8 10:53:18 9 10:53:21 10 10:53:24 11 ~3:27 12 10:53:27 13 10:53:32 14 10:53:36 15 10:53:36 16 10:53:42 17 10:53:45 18 10:53:49 19 10:53:56 20 10:53:59 21 10:54:08 22 10:54:13 23 ) lu:54:23 24 10:54:30 25 260 refer to? A. Again, we were making fun of the rules that they had made. I had come over after I was done doing my work to tell her it was time to go. When she leaned up against the table, we were talking about hiding behind the three inches of wall. You know, we -- she -- she sat on her desk and I took her legs and moved them apart and got in very close to see if we could hide. We were making fun of their rules. I was making fun of their rules. Q. And were you able to hide behind the three inches of wall space in the manner you've just described? A. No. It was sarcastic. Q. So it's your testimony under oath that by stating "I think we proved that it is possible to hide in three inches of wall space," that you were actually stating the opposite? A. It was sarcastic. Q. What is the reference to your quote -- her "pearl" being exposed, what is that regarding? A. A pearl in this case is referring to her genital area. By exposing it, I was -- again, it MOORE HENDERSON & THOMAS (503) 226-331£XHIBIT E ,P.I:t.g, Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 32 of 35 ) 10:54:36 1 10:54:40 2 10:54:45 3 10:54:49 4 10:54:51 5 10:54:52 6 10:54:55 7 10:54:56 8 10:54:59 9 10:55:05 10 10:55:06 11 ~5:09 12 10:55:13 13 10:55:23 14 10:55:27 15 10:55:31 16 10:55:40 17 10:55:42 18 10:55:47 19 10:55:50 20 10:55:50 21 10:55:55 22 10:55:58 23 lU)56:17 24 10:56:19 25 261 was sarcastic, but in the sense that I spread her legs to expose. Q. Okay. Is the pearl a reference to a clitoris? A. Yes. Q. And so your reference there was -- sorry, strike that. So it's your testimony that using the term "pearl exposed" meant with her clothing on, but spreading her legs? A. That's how I meant it, yes. Q. The next sentence states, "And oh how I enjoy rolling your 'pearl' around." What is that in reference to? A. I don't recall that, but I'm guessing that I reached down, and on top of her clothing, fondled her. Q. And then the last -- and again, "pearl" is in reference to a clitoris in that sentence? A. Yes. Q. The next sentence states, "Maybe next time you can sit in your chair." What is that in reference to? A. Just that maybe next time, instead of trying to hide behind three inches of wall, that MOORE HENDERSON & THOMAS (503) 226-33BHIBIT ..§.... P. ~10 Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 33 of 35 ) 1 2 3 STATE OF OREGON ) county of Multnomah ) Certified Copy 289 ) 4 I, Aaron M. Thomas, Certified Shorthand 5 Reporter, Registered Professional Reporter, and 6 Notary Public for the state of oregon, do hereby 7 certify that JANETTE M. WILKEN personally appeared 8 before me at the time and place mentioned in the 9 caption herein; that the witness was by me first 10 duly sworn on oath and examined upon oral ~~ interrogatories propounded by counsel; that said examination, together with the testimony of said 13 witness, was taken down by me in stenotype and 14 transcribed through computer-aided ,transcription; 15 and that the foregoing transcript constitutes a 16 full, true and accurate record of said examination 17 of and testimony given by said witness, and of all 18 other oral proceedings had during the taking of said 19 deposition, and of the whole thereof. 20 witness my hand .and Notarial Seal at ) 21 22 23 24 25' ~_/" ~n M. Thomas Oregon CSR 04-0388 MO~~E~~~~NDERSON & THOMAS (503) 226-3316XHIBfl .£.. t P. Uub'0 Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 34 of 35 CERTIFICATE OF SERVICE I hereby certify I served the foregoing PLAINTIFF'S MOTIONS IN LIMINE on: David G. Hosenpud Leah C. Lively Attorney at Law LANE POWELL~PC 601 SW Second Ave., Ste 2100 Portland OR 97204-3158 OfAttorneys for Defendant HAND DELIVERY U.S. MAIL FAX E-Mail X ECF Michael R. Seidl Seidl Law Offices PC 806 SW Broadway, Suite 400 Portland OR 97205 Of Attorneys for Plaintiff HAND DELIVERY U.S. MAIL FAX E-Mail X ECF by delivering this date to said attorney(s) a true copy thereof as stated above. I further certify that said documents were contained in sealed envelopes, addressed as above stated, to the last- known addresses of said attomey(s). Documents delivered by mail were deposited in the post office at Portland, Oregon with postage thereon prepaid. ! Page 10 - PLAINTIFF'S MOTIONS IN LIMINE DATED: L _ STEPHEN L BR/SCHETTOATTORNEY AT LAW806 S. W. BT()(ldW4Y, SlIite 400Portland, Oregon 97205Telephone: (503) 223·5§.i'I. Mot.Limine.doc Case 3:06-cv-00195-HA Document 155 Filed 06/09/08 Page 35 of 35