Free Brief in Support of Motion - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

Document 339-9

Filed 01/31/2006

Page 1 of 4

Michael B. Clark 10/12/2005

Camile Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
* * *

1 APPEARANCES:
2 On behalf of the Plaintiffs:

4 CAMILLE MELONAKIS-KURZ, et ai',

3 Nichols, Kaster & Anderson
4 By: Michele R. Fisher

5 Plaintiffs,
6 vs. CASE NO.03-MK-21185
7 HEARTLAND HOME FINANCE, INC.,

5 464

Allorney at Law IDS Center Minneapolis, Minnesota 55482-2242

8 Defendant.
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* * *

6 On behalf of the Defendant 7
tce Miller

Deposition of MICHAEL B. CLARK,

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for cross-examination pursuant to the Rules of Civil Procedure, taken before me, Monica K. Hissong, a Notary Public in and for the State of Ohio, at the offces of Mike Mobley Reporting, 312 Walnut Street, Suite 1600, Cincinnati, Ohio, on Wednesday, October 12,2005, at8:38 o'clock a.m.
Plaintiff herein, called by the Defendant

By: Margaret D. Wielenberg
9 Steven F. Pockrass Allorneys at Law 10 One American Square Box 82001

11 Indianapolis, Indiana 46282-0200
12 ALSO PRESENT:
13 Richard D. Stevens, Videographer

14 * '" II
16 record.

* * *

15 THE VIDEOGRAPHER: We are on the
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1 EXAMINATIONS CONDUCTED
2 BY MS. WIELENBERG:............................ 4 3 BY MS. FiSHER................................ 160 4 BY MS. WIELENBERG:............................ 163
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1 MICHAEL B. CLARK
2 of lawful age, Witness herein, having been first

3 duly cautioned and sworn, as hereinafter
4 certified, was examined and said as follows:

5 MS. WIELENBERG: This is the
6 deposition of Michael P. Clark taken pursuant to

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7 notice and scheduled by agreement of the parties.
8 It's taken pursuant to all applicable federal and

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9 local rules.

1 0 CROSS-EXAMINATION
11 BY MS. WIELENBERG:

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12 O. Mr. Clark, will you please state
13 your full fame for the record? 14 A. Michael B. Clark.

15 O. And present on behalf of the
16 plaintiffs is counsel, Michele Fisher. On 17 behalf of the defendant, Heartland Home
18 Finance, Margaret Wielenberg and Steve

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19 Pockrass. Mr. Clark, have you ever given a 20 deposition before?

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21 A. No.

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22 O. Okay. I am sure you have had an

23 opportunity to speak with your attorney, but I 24 will briefly go over some of the ground rules.

25 Do you understand the meaning of the oath?

1 (Pages 1 to 4)

Case 1:03-cv-02485-MSK-PAC

Document 339-9

Filed 01/31/2006

Page 2 of 4

Michael B. Clark 10/12/2005

Camile Melonakis-Kurz, et al v. Hearland Home Finance, Inc.

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A. At first I was. Once I was a
manager, I was not. It seems like that's when I worked more.

A. Jim Westbeld.

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Q. Was he your manager the entire
time during your employment?
A. Yes, he was.

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Q. When you were an account
executive, you were compensated for overtime?
A. Yes.

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5

7
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Q.

How did they keep track of your

hours?

A. That was electronically tracked
based on the computer, plus we did have a

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Q. Do you recall any of the other loan offcers that you worked with at Heartland

Home Finance?

A. Their names?
Q. Uh-huh, yes.

A. Yes, I do.
Q. And who do you recall?
A. Curtis Bowling, John Noll, Alene

sign-in sheet.

12 Q. Okay. So you were familar with 13 the sign-in sheet process, correct? 14 A. Yes. 15 Q. Okay. About how many years were 16 you an account executive at Beneficial? 17 A. About three and a half, three to 18 three and a half. 19 Q. During that entire three and a 20 half year period, were you using sign-in
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12 13 14 15 16 17 18 19

Butler, there is a whole lot more. That's all
i can recall at the moment. Q. Okay. Do you recall approximately how many loan offcers were working in your

branch?

A. Approximately fifteen.
Q. Okay. Tell me about the kind of
hours you worked when you were employed with Heartland Home Finance as a loan offcer.

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sheets?
A. Yes.

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Q. Was your position -- when you were at Beneficial, were you acting in the position of a loan originator?
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A. Typically, my day would begin
around 9:00 o'clock, 8:30 to 9 in the morning.

i would normally take a lunch around 12, 12:30 for an hour, sometimes not that. It just
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A. Yes.

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Q. Is that true even after you became a manager?
A. Yes.

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7

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Q. So for the entire five-year -approximately five-year period, you were acting
as a loan originator or a loan offcer; is that

depended on the day. i would work .. typically, I worked late in the evenings, except for Friday. i would normally leave, you know, 4, 5:00 o'clock on Fridays. Q. Okay. When you say typically you
would work late in the evenings, can you tell me -- be a little more specific, please?

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correct?

A. Late in the evenings, sometimes
until -- you know, a lot of times until, you know, 8, 9:00 o'clock in the evenings. That's typically the best time to reach potential

A. Correct.
Q. Just a reminder, try to let me -even though you know where I'm going -A. Sorry.

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Q. -- just try to let me finish, okay? Thanks. Okay. If you could turn to the last page of your employment application, is that your signature on this application?

A. Yes, it is.
MS. WIELENBERG: Okay. We wil mark this as Exhibit No.1.
(Thereupon, Defendant's Exhibit No.1 was marked for purposes of identification.) BY MS. WIELENBERG: Li ... '",. 111. ~~~: 'JTUAJ'-- 1'Tln;1 JVU -.san ornplVrnlçm at Heartland Home Finance, who was your

12 clients. 13 Q. Okay. When -- can you be more 14 specific on when you say the best time to reach 15 clients, was there a window of when you would 16 try to reach clients? 17 A. They say that the best window in 18 this business to reach people is between 6 and 19 9 p.m.

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Q. Okay. And was that your practice,
to reach customers during those times?
A. Normally.
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L.:

nn

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- - -.VVUUIU yuu I,UIIClIJ I,usrorners ell any

manager?

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other time throughout the day?
A. Yes.

6 (Pages 21 to 24)

Case 1:03-cv-02485-MSK-PAC

Document 339-9

Filed 01/31/2006

Page 3 of 4

Michael B. Clark 10/12/2005

Camile Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

(

Page 53
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Page 55
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Q. Who determined what hours you
would work at Heartland Home Finance?

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aware of a manager talking to any loan offcer about coming in late or leaving too early?

A. There were .. the loan officers
did, to a degree. But, again, if _. you know, if we weren't there by a certain time, you know, they would question us about it.
Q. Who would? A. The managers would.

A. Not that i can recall.
Q. How did you know that -- that a manager would talk to loan offcers if they came in too late?

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A. That's what they told us. Q. Okay. But you never saw that
actually being done, did you?

Q. Okay. So i want to make sure I
understand. You are saying that the loan offcers had some amount of discretion about what time to come and go?
A. Yes.

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A. I never saw that, no.
Q. What about lunchtime, did loan
offcers have discretion about what time to

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Q. But if you got in too late, the managers might say something to you?

A. Correct.
Q. What would -- what would be a time that somebody came in late that would be late enough that they would probably get talked to?
A. 11 a.m.

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take lunch?
A. Yes.
Q. Did they have discretion about how

long to take lunch?
A. Yes.
Q. Do you have any knowledge of how

long any other loan offcer took for lunch?
A. No.
Q. Do you have any knowledge about

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Q. So what time did they want you to -- what was the general guideline of what time people should arrive by?

A. 9:30 to 10 in the morning generally.
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any other loan offcers -- what time they would

come and go?
A. No.

Q. Okay. How long would you take
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Q. Okay. But was it up to each
individual

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lunch for generally?

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loan offcer to determine what time

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A. Generally, a half an hourto an
hour.
Q. What would you do for lunch? A. Eat, relax, take a power nap.

they would come in in the morning within those

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guidelines?
A. Yes.

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Q. Okay. So there was nothing -nobody said you have to be here at specifically 9 -- by 9:30 or by 10:00 o'clock?
A. No.

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Q. What about the time you left at the end of the day, was that determined by the

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Q. Would you eat lunch there in the offce or would you go out?

A. For the most part, I would go out.
I did bring it in occasionally and eat at my

desk.
Q. Wherewould you go for lunch?
A. Fast food, Wendy's, McDonald's,

12 manager, or did the loan offcers have 13 discretion? 14 A. The loan officers had some 15 discretion. But, again, like the time 16 starting, you know, if we left too early, 17 they -- we would hear about it, too early 18 being, you know, if we left at 4:30 in the 19 afternoon, sometimes 5:00 o'clock, just

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Frisch's, LaRosa's. Q. Okay. And how far were those
restaurants from your offce?
A. Within a mile.

Q. Did you ever go to lunch with anybody else, or did you go on your own?

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depending on the time of the month, end of the

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A. Once or twice with other people. Q. Okay. So would you say it's safe
to say that on most days, you would take lunch?

month being busiest, of course.

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22 Q. Did anybody ever talk to you about 23 coming in too late or leaving too early? 24 A. Not that I can recall. 25 Q. Did you ever -- were you ever

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A. On most days I did, yes.
Q. Were there any exceptions to that?
Was there ever a time when you didn't eat

lunch?

14 (Pages 53 to 56)

Case 1:03-cv-02485-MSK-PAC

Document 339-9

Filed 01/31/2006

Page 4 of 4

Michael B. Clark 10/12/2005

Camile Melonakis-Kurz, et al v. Heartland Home Finance, Inc.
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1 Q. Did you ever work on Saturdays?
Page 61

Page 63

1 about whether the offce would be open on

2 A. Yes.
often? 4 A. Maybe twice a month.
3 Q. How

2 Saturday?

3 A. No.
4 Q. Was it your understanding that it
5 was just up to the loan offcer to decide
6 whether or not to come in on Saturdays?

5 Q. How many hours on Saturday? 6 A. Probably about three. 7 Q. What hours would you work on
8 Saturday? 9 A. Maybe 10 to 12, 10 to 1. 10 Q. Why would you do that?

7 A. Yes.
8 Q. Was -- was it encouraged or
9 discouraged to work on Saturdays?

10 A. It was encouraged.

11 A. Catch up on stuff from the
12 previous week.

11 Q. By whom?
12 A. By the managers.

13 Q. Like what, meaning --

13 Q. Specifically, who?
14 A. Jim Cliche and Jim Westbeld.

14 A. Callng people that I couldn't get
15 ahold of. Sometimes Saturday is a good day to 16 reach people.
17 Q. Were you required to come in on
18 Saturday?

15 Q. What did they say about that?
16 A. They said that the weekends were a
.

19 A. No.
20 Q. Was a manager there -- was Jim
21 Westbeld there when you would come in on

17 good time to reach people; that if anyone 18 wanted to work on a Saturday that they could;

19 that someone was generally there.

20 Q. Did they say anything else? 21 A. No, not that I can recall.
22 Q. Did you ever tell Jim Westbeld you

22 Saturday?

23 A. No.
24 Q. Was any manager there?

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25 A. No.

24 A. Yes.
Page 62

23 were working on Saturdays?

25 Q. How many times?
Page 64

1 Q. Were other loan offcers there on
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1 A. Three or four.
£",2--~----~,_.,="Q,.,-"JAIAat~Iil"yøu'--say:l=~~~~~o,,' - -__.__~~~_"

3 A. Yes.
4 Q. Approximately how many?
5 A. Approximately three or four. 6 Q. Okay. So you were employed at
. 7 Heartland Home Finance for about three months.

3 A. Just in a general conversation, I
4 got ahold of so and so on Saturday or I

5 finished up such and such file on Saturday.

6 Q. What did he say?

7 A. Great.
8 Q. Did you record your Saturday hours

8 Do you think that you came in twice a month for

10 A. Yes.
13 month

9 each of the three months --

11 Q. -- or did it vary? 12 A. I think that I came in twice a
for each of the three months. 14 Q. Okay. How did you get into the
15 offce on Saturday?

10 A. No.

9 on your time sheet?

11 Q. Why not?
12 A. Weren't allowed to.

13 Q. On your time sheet, was there a
14 space where you could have filled in hours on
15 Saturday?

16 A. It was unlocked because other

16 A. I don't remember if there was or
17 not. I want to say no, but I'm not sure.

17 people were there. 18 Q. Do you know if other loan offcers
19 had keys?

18 Q. And what was your understanding

20 A. Yes.
21 Q. So when you were going to the

19 that you were not allowed to record Saturday
20 hours based on?

21 A. Based on the fact that we could
22 only put down fort hours a week, based on our 23 July meeting, and they weren't going to pay us
24 for anything else. And they told us just to
25 put down fort, which was Monday through

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22 offce on Saturday, you were taking a chance

23 that somebody else would be there with a key?

24 A. Yes.

25 Q. Do you know who made the decision

16 (Pages 61 to 64)