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

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

Document 339-32

Filed 01/31/2006

Page 1 of 5

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

CAMILLE MELONAKIS-KURZ, individually and on behalf of other similarly situated employees,

Plaintiffs,
VS.
CIVIL ACTION FILE NO. 03-MK-2485

HEARTLAND HOME FINANCE, INC.,

Defendant.
VIDEOTAPED DEPOSITION OF
ADAM PROVOST

December 14, 2005 10:46 a.m. Tiffany Alley & Associates 400 Perimeter Center Terrace Atlanta, Georgia

Karen F. Gifford, RPR, CCR-B-1887 Craig Fine, Videographer

CC~~ì1

.

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

Document 339-32

Filed 01/31/2006

Page 2 of 5

Adam Provost 12/14/2005 Camille Melonakis-Kurz, et al. v. Heartland Horne Finance, Inc.

1 BY MR. MATTHEWS:
2

77

Q.

I'm going to hand you what's been marked as
Can you iden ti fy what that

3

Defendant's Exhibi t 3.

4 document is?

5 A. Employment Agreement.
6 Q. Is that your Employment Agreement wi th

7 Heartland?
8

A.
Q.

Yes.

9

And there i s an ini tial at the bottom of each

10 page of this agreement, pages 1 through 12, and then a

11 signature on page 13. Are those your initials and is
12 that your signature?
13
14

A.
Q.

Yes.
Would you look at page 4, paragraph 6,

15

Employee's Duties.

I want to direct your attention to

16 paragraph 6E, and one of the duties identified in 6E
17 is, quote, "Comply wi th all policies and procedures of

18 the employer which relate to the verification of hours
19 worked and preapproved overtime hours," end quote.

20 Have you seen that provision in this
21 agreement before?
22

A.
Q.

Have I seen it?

23
24

Yes.

A.
Q.

Yes.

I've signed it.

25

When did you first see provision 6E in your

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

Document 339-32

Filed 01/31/2006

Page 3 of 5

Adam Provost 12/14/2005 Camille Melonakis-Kurz, et al. v. Heartland Horne Finance, Inc.

78

1 Employment Agreement?
2 3

A.
Q.

Apparently on the 7th day of January 2004.

Did you have any discussions wi th Jackie
No.
Do you recall any meetings or employee

4 Pusey concerning paragraph 6E or what it meant?
5
6

A.
Q.

7 bulletins or memoranda or any other kind of
8 communication sent from Heartland to you concerning 9 paragraph 6E or policies related to hours worked and

10 overtime?
11
12

A.
Q.

I don't recall, no.

Are you familiar wi th Heartland's policies
Am I familiar with them?

13 related to the verification of hours worked?
14

A.
Q.

15

Yes.
If you i re asking me if I read this, then,

16

A.

17 yes, I read it, but 11m not all that familiar with it,
18

to be honest wi th you.

But I guess the answer to that

20 it.
21 23
24

19 question is, yes, if I read this, right, and initialed
Q.

Okay.

Do you know what Heartland i s policy is

22 concerning preapproved overtime hours?
A.
Q.

Is it in this document?

Well, 11m talking as it i S referenced in

25 paragraph 6E.

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612-339-0545

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

Document 339-32

Filed 01/31/2006

Page 4 of 5

Adam Provost 12/14/2005 Camille Me1onakis-Kurz, et al. v. Heartland Horne Finance, Inc.
102
1

Q.

So some of the time.

That means some of the

2 time you wouldn i t have worked in excess of 40 hours;

3 is that correct?
4

A.
Q.

Maybe.

I don i t recall.

5
6

You don i t recall?

A.

I mean, maybe, yes.

I don i t recall.

I mean,

7 basically if 11m
8

Q.

Well, Mr. Provost, let me just stop you right
Your testimony earlier at the deposition was,

9

there.

10 I always worked in excess of 40 hours.

11 Now, you have a declaration you signed that
12

says, on average I worked in excess of 40 hours.

So

13 11m trying to understand what your testimony is as we
14 sit here right now, whether it i s, I always worked over

15 40 hours, or, on average I worked over 40 hours,

16 because I see a contradiction, so that i s what 11m
17
18

A.
Q.

Ri g h t .

-- looking for clarification for.
I understand.

19

A.

Personally, I think I always

20

worked, I always worked more than 40 hours a week.

I

21 mean, 40 hours is pretty minimal compared to what the
22
hours that we put in out there at that office.
almost always there late, you know.
I was

23

And, I mean, I
I mean, like,

24 was sometimes there early on a Saturday, to meet
25
somebody, or whatever the case may be.

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612-339-0545

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

Document 339-32

Filed 01/31/2006

Page 5 of 5

Adam Provost 12/14/2005 Camille Melonakis-Kurz, et al. v. Heartland Horne Finance, Inc.

1 it was different every, every week, the hours that I
2

103

worked.
Q.

I mean --

3
4

Which is --

A.

If it was 41 hours, maybe, I mean, you're

5 talking about, you know, still going over.
6

Q.

Which testimony is correct? Your earlier

7 deposition testimony that you always worked over 40

8 hours or your testimony which was signed under oath
9 and the penal ties of perj ury that on average you

10 worked over 40 hours?
11
12

A.

I don i t know how - - I don i t know how I need

to answer that.

I mean, I i m not trying to get anybody

13 in trouble here, especially myself, but 11m basically
14 telling you that I think that I worked always over 40
15

hours.
Q.

There might have been one week in there where

16 I didn It.
17

So this declaration is incorrect, then?

18

A.

Okay, take, for example, if there was one

19 week where I worked 40 hours, then that i s most of the
20 21
time I didn't.
Q.

I worked more; right?

Right. But your testimony earlier was you 22 always worked over 40, and this says on average. And,
23 again, I just want to know, is this declaration

24 incorrect?
25
A.

I don i t believe this declaration is
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