Free Reply - District Court of Colorado - Colorado

Case 1:04-cv-01135-REB-PAC

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Filed 06/21/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1135-REB-PAC ADRIAN OSORNIO, BETSY MARTINEZ, JESSICA WILLIAMS, ISTQUIA REYNA, MIGUEL FONTANET, and MAYRA CARMONA, Plaintiffs, v. T-MOBILE USA, INC., Defendant. AFFIDAVIT OF CASSANDRA SHEPARD Cassandra Shepard, being first duly sworn according to law, deposes and states as follows: 1. I am over the age of 21 years, and I make this affidavit based upon my

personal knowledge of the facts stated herein. 2. I am employed by T-Mobile USA, Inc. as the Human Resources Manager

for its Colorado Springs, Colorado call center. 3. 80902. 4. As the Human Resources Manager, I am responsible for the development, My business address is 556 Chapel Hills Drive, Colorado Springs, CO

dissemination and implementation of all human resources policies at the Colorado Springs call center. 5. T-Mobile does not have a progressive discipline policy, and it did not in

March 2003 when the plaintiff Adrian Osornio's employment was terminated.
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6.

T-Mobile's discipline policies allow for the use of performance plans,

verbal warnings, documented verbal warnings, written warnings, and employment termination. However, the types of corrective actions are not required "steps" and there is no specific order in which disciplinary actions must be taken. For example, T-Mobile does not require that a verbal warning be issued before a written warning can be issued. The corrective action taken depends upon the circumstances relating to the employee in question and his or her action or performance that is at issue. T-Mobile also does not require that an employee "progress" through all forms of corrective action before employment is terminated. Instead, employment can be terminated without an employee ever receiving a performance plan, a verbal warning, a documented verbal warning, or a written warning. In other instances, employees receive some but not all of these corrective actions before employment is terminated. 7. Adrian Osornio was employed by T-Mobile at the Colorado Springs call

center as a team coach. 8. 9. His employment was terminated on March 12, 2003. As the Human Resources Manager for the Colorado Springs call center, I

am responsible for the maintenance of all personnel files and records. Records relating to corrective action, including termination, of employees are prepared by persons with knowledge of those events at or near the time those events occur. Those records are prepared and maintained in the regular course of T-Mobile's business at the Colorado Springs call center. 10. Based upon my review of those records, during the period 2002-2004,

T-Mobile terminated the employment of the team coaches listed below at its Colorado

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Springs call center. The nature of the corrective action, if any, short of termination is listed for each terminated team coach along with his or her race or national origin. For the purposes of this chart, the term "Caucasian" does not include Hispanics. Name David Ryden Eddie Davis Charles Aikens Martin Frazier William Barrett Adrian Osornio Scott Taylor Patrick Berens Jon Lindau Milan Golubovic Kerry Walsh Freddie Packer David McMillon Oscar Morales Andrew Patrick Christopher Evans Matthew Bleckert William Owens William Duncan 11. Race Caucasian African American Caucasian Caucasian Caucasian Hispanic Caucasian Caucasian Caucasian Caucasian Caucasian Caucasian Caucasian Hispanic Caucasian Caucasian Caucasian Caucasian Caucasian Termination Date 01/07/02 05/13/02 09/04/02 11/07/02 03/02/03 03/12/03 04/10/03 07/30/03 08/08/03 08/15/03 10/08/03 11/07/03 11/25/03 03/24/04 04/15/04 05/11/04 06/23/04 09/10/03 09/15/04 Pre-termination Corrective Action None None Performance Plan, Verbal Warning, Written Warning Verbal Warning, Two Written Warnings None Written Warning None None Verbal Warning None None None None Two Verbal Warnings, Two Written Warnings None None None None None

The letter dated May 2003 from T-Mobile to Betsy Martinez, a copy of

which is Exhibit A-21, is a standard form letter used by T-Mobile to confirm the terms

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and conditions of an employee's medical leave. This form warns employees that, if they fail to return from medical leave as scheduled, their employment will be terminated. 12. T-Mobile consistently terminates the employment of employees who fail to

return from medical leave on the scheduled date. Betsy Martinez was, therefore, treated in the same manner as other employees who fail to return from medical leave as scheduled. 13. Barbara Berry was employed by T-Mobile as a team manager in

T-Mobile's Colorado Springs call center. I knew Ms. Berry, I worked with her, and I knew her responsibilities. In 2003, she was one of 9 team managers at the call center. Ms. Berry supervised 6 team coaches, each of whom supervised 12 to 15 customer care representatives. 14. Ms. Berry was responsible for disciplining the team coaches she

supervised. She also assisted team coaches in disciplining their customer care representatives. 15. Ms. Berry had no responsibility for administering corrective actions for the

several hundred employees at the call center whom she did not supervise either directly or through her team coaches. 16. Ms. Berry was not responsible for the development and establishment of

employee policies, practices or procedures. 17. T-Mobile terminated Ms. Berry's employment without proceeding through

all of the steps of the alleged progressive discipline policy. s/ Cassandra Shepard

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STATE OF COLORADO COUNTY OF

) ) ss. )

On this _____ day of __________, 2005, personally appeared before me a Notary Public, ____________________, personally known or proved to me to be the person whose name is subscribed to the above instrument and who acknowledged to me that she executed the above instrument. ______________________________ Notary Public My commission expires: __________

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