Free Uncategorized - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Luis F. Ramirez (#022653) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-EHC PLAINTIFF'S CONTROVERTING AND SEPARATE STATEMENT OF FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT RE: LIABILITY AND DAMAGES

Plaintiff Marcela Johnson ("Johnson"), pursuant to Rule 56.1, Rules of Practice of the United States District Court of the District of Arizona, submits her Controverting Statement of Facts to Defendant Charles Schwab & Company, Inc.'s ("Schwab") Statement of Facts and her Separate Statement of Facts in Support of her Opposition to Schwab's Motion for Summary Judgment. JOHNSON'S CONTROVERTING STATEMENT OF FACTS 1. For purposes of Schwab's Motion for Summary Judgment Re: Damages and

Liability only, Johnson does not controvert the following Statements of Facts ("SOF") asserted by Schwab: 1, 2, 21, 27, 36, 38, 42, 43, 45, 46, 48, 51, 55-57, 59- 62, 69, 71-73, and 75. 2. 1-7. 3. Johnson object and moves to strike SOF ¶ 3 because it is irrelevant. Uncontroverted. See Johnson's Converting Statement of Facts ("CSF") ¶¶

Case 2:04-cv-00790-EHC

Document 151

Filed 05/12/2006

Page 1 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

Johnson also controverts this statement because Schwab's reference to items not documented in Johnson's personnel file prior to her termination are irrelevant and were not considered during the investigation. Moreover, at the time of Johnson's termination, she was in good standing and not currently on any type of written discipline. In fact, within a month of her termination, Schwab stated that Johnson "is one of the first on the team to jump in and assist . . . ." See SSF ¶¶ 1-7. Also, Schwab's attempt to malign Johnson's character and work performance in order to justify its termination is evidence of pretext. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Controverted. See CSF ¶ 3. Controverted. See CSF ¶ 3. Controverted. See CSF ¶ 3. Controverted. See CSF ¶ 3. Controverted. See CSF ¶ 3. Controverted. See CSF ¶ 3. Controverted. See CSF ¶ 3. Controverted. See CSF ¶ 3. Controverted. See CSF ¶ 3. Controverted. See CSF ¶ 3. Controverted. Schwab's use of information that it acknowledges had

nothing to do with its investigation or its decision to terminate Johnson is evidence that the trier of fact could consider in concluding that Schwab's proffered reasons for the termination is pretextual. See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654 (9th Cir. 2002) (employers use of fundamentally different justifications to support adverse action is evidence of pretext); Quaranta v. Management Support, 255 F.Supp.2d 1040 (D. Ariz. 2003). Their reference in ¶ 14 is a classic example. The issue is not mentioned in any document related to the investigation. Moreover, Tammy KornegayHodges ("Hodges"), Schwab's Manager of Human Resources ("HR"), acknowledged that

Case 2:04-cv-00790-EHC

Document 151 -2-Filed 05/12/2006

Page 2 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

it was not related to the investigation, nor did it in any way violate Schwab's policy. Deposition of Hodges at 67:10-14; 69:13-70:12 attached as Exhibit 2.1 15. Controverted. Johnson objects to and moves to strike SOF ¶¶ 15-16 because

they are irrelevant. The decision-makers did not consider these facts when terminating Johnson's employment. See Defendants' Second Supplemental Answers to Plaintiff's First Set of Non-Uniform Interrogatories and Defendant's Response to Plaintiff's Amended First Set of Non-Uniform Interrogatories, attached as Exhibit 3; Exhibit 1 at 120:14122:22 and Ex. 9 thereto; CSF ¶ 14. 16. Controverted. See CSF ¶¶ 14, 15. The evidence is irrelevant and

inadmissible because it was not known or considered by the decision-makers in terminating Johnson's employment. Exhibit 3 at Interrogatories 5 and 6. 17. Controverted. Jeff Hanson (Hanson), director of the Electronic Order

Review department ("EOR"), never told Melle that Johnson had "yelled" at him and others to be quiet. Hansen reported to Melle that he was making an award ceremony presentation to an employee in his department and that several employees were applauding and talking loud. See testimony of Melle before the National Labor Relations Board ("NLRB") at 122:2-19, attached as Exhibit 4. Hansen said during the ceremony Johnson walked over to the employees and asked them to be quiet because she and other employees were trying to make calls to customers and the noise was too loud. Id. at 122:9-19. See also, CSF ¶ 14. 18. 19. Controverted. See CSF ¶ 19. Controverted. Testimony of Johnson before the NLRB at 251:13-15, 22-24,

attached as Exhibit 5; Exhibit 4 at 125:15-126:4.
1

On the other hand, in an effort to mislead the EEOC, Schwab included in its Position Statement to the EEOC statements about the alleged harasser's (Edmond Steinert) churchgoing activities. This is despite the fact that Schwab's 30(b)(6) representative (Hodges) acknowledged that Steinert's church-going activities would be completely irrelevant to the issues before the EEOC and the issues raised during the investigation. Exhibit 2 at 129:14-21; Exhibit 20, p. 9.
Case 2:04-cv-00790-EHC Document 151 -3-Filed 05/12/2006 Page 3 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

20. 21. 22. 23.

See CSF ¶ 19. Uncontroverted. Controverted. SSF ¶¶ 20,23. Controverted. The information is hearsay and calls for a conclusion.

Moreover, during John Creelman's ("Creelman") interview with Schwab, he confirmed the factual information provided by Ms. Johnson. See SSF ¶¶ 27, 68, 69. 24. Controverted. This is another example of Schwab conveniently leaving out

facts that raise serious questions regarding its conduct and the motivation therefore. Prior to the meeting of October 30, 2003, Schwab was informed that Johnson was physically ill and had just learned that an aunt, who was very close to her, had terminal cancer, and was not going to live very long. This information was provided to Hodges, the lead

investigator, prior to the meeting in an e-mail. SSF ¶¶ 23-24. Hodges responded to the email indicating the meeting would go forward. However, now Hodges states that despite responding to the e-mail, she never read it. SSF ¶ 25. More importantly, Hodges

acknowledges that if she had read the e-mail that was sent to her, the meeting would have never happened. SSF ¶ 26. Furthermore, nowhere in Schwab's report leading up to the termination, the statements to the EEOC, or in any other document do they discuss the fact that the interview that lead to Johnson's termination was conducted when she was physically ill and emotional distraught due to the information she had just learned regarding her aunt. Exhibits 20 and 21. This is another example of evidence that the trier of fact could consider in finding pretext. See CSF ¶ 14. During the October 30, 2003, meeting, Johnson specifically told Hodges and Melle that she did not want to talk about the issue and asked if they could "just forget the whole thing." Regardless, Hodges told Johnson that she had a legal obligation to follow up on any allegation of inappropriate conduct. Exhibit 4 at 55:3-16. 25. 26. Controverted. See CSF ¶ 24. Controverted. During the meeting, Hodges asked Johnson if she had

Case 2:04-cv-00790-EHC

Document 151 -4-Filed 05/12/2006

Page 4 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

witnessed Steinert engage in similar behavior with other employees. Johnson said that she had witnessed Steinert massage a female co-worker's, Barbara Cazaubon ("Cazaubon"), shoulders and that Creelman had witnessed it and commented that it was "disgusting." Testimony of Hodges before the NLRB at 56:22-57:5; 58:3-5, attached as Exhibit 6; Exhibit 4 at 134:6-9. Johnson also told them that Steinert had told Vanessa Barragon Ortiz ("Ortiz") that Ortiz "looked good enough to eat" and that McClung had overheard the comment. Exhibit 4 at 133:4-16. Again, Johnson indicated to Hodges that she did not want to report Steinert's behavior, that she did not want to get anyone fired, and that she had stopped talking to Mr. Steinert. Exhibit 6 at 59:8-20. See also SSF 23; CSF ¶ 24. 27. 28. 29. Uncontroverted. Controverted. See CSF ¶¶ 26, 28. Controverted. See SSF ¶¶ 47-49, 51-54. Since the termination, Schwab

continues to misrepresent what Steinert said during the meeting. He did not simply say that he did not recall. The facts are that when Steinert was first asked about the

allegations made by Johnson, he denied them. Then he changed his story and said, "wait, it's possible," which, according to Schwab, would mean that Ms. Johnson was telling the truth. Exhibit 2 at 129:2-130:14. There is other evidence that when asked whether he massaged Johnson, Steinert responded, "If that is what you are hearing, then that's probably what happened." Exhibit 6 at 65:22-66:2. Steinert could not specifically deny that he had massaged Johnson's shoulders and admitted that he is a "touchy" person. Exhibit 2 at 129:2-130:21. During the interview, Steinert admitted that he told Johnson that he liked the way she changed her hair and that she looked nice and that he had talked to her about her tummy and her "boobs." Exhibit 6 at 66:9-67:2. Steinert also admitted that he had massaged Cazaubon's shoulders at least once a week and acknowledged that such behavior could be viewed as inappropriate workplace conduct. 108:11-16. 30. Controverted. Johnson also moves to strike Creelman's opinions regarding Id. at 65:5-11;

Case 2:04-cv-00790-EHC

Document 151 -5-Filed 05/12/2006

Page 5 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

Johnson as irrelevant and inadmissible under Rules 402 and 701, Fed. R. Evid. Moreover, Creelman alleged that Johnson stated she was going to report Steinert for sexual harassment. Hodges acknowledged that Johnson never made such a report and only provided the information when she was forced to in the meetings conducted by her supervisor and Hodges. See Exhibit 2 at 112:3-13. Also, Ms. Hodges credited Creelman's version of the conversation, in part, because Creelman allegedly asked Ms. Johnson "not to use it" in the context of the complaint. Exhibit 2 at 135:15-136:11. Schwab's 30(b)(6) representative refused to acknowledge that Johnson had an obligation under their EEO policy to report what Creelman had witnessed and said. Id. This is also an example of Schwab not following their policies with respect to Johnson. Schwab's policies instruct employees not to discourage others from reporting incidents of harassment, yet Schwab did not discipline Creelman, a white male, for discouraging Johnson, a Hispanic female, and instead fired her. SSF ¶¶ 27-29. 31. Johnson controverts SOF ¶ 31. Johnson never told Hodges that she

approached Creelman and told him that she "was going to allege that Steinert sexually harassed her." Moreover, this statement is contrary to the facts as admitted by Schwab's 30(b)(6) representative. Hodges acknowledged that Johnson never made such a report and only provided the information when she was forced to in the meetings conducted by her supervisor and Hodges. See CSF ¶ 30; Exhibit 2 at 112:3-13. This is another example of Schwab crediting Creelman, a white male, even in the face of contradictory facts. 32. Johnson moves to strike the last sentences of ¶¶ 4 and 5 in Exhibit E

because they are irrelevant and the last sentence of ¶ 9 because it lacks foundation. Johnson also controverts SOF ¶ 32. During her interview with Hodges, McClung said that she wished that Steinhart could keep things on a professional level and that he had been irritating her since June 2003, and in October 2003, she had requested to move away from his desk. McClung stated that Steinert had made "unwelcome comments." Exhibit 6 at 208:22-214:6.

Case 2:04-cv-00790-EHC

Document 151 -6-Filed 05/12/2006

Page 6 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

33.

Johnson moves to strike ¶¶ 5-7, 9, and 12 of Exhibit F because they are

irrelevant and ¶¶ 5 and 6 because they also lack foundation. 34. Controverts in part. Johnson acknowledges Creelman's statement.

However, the fact that Schwab credited the alleged harasser who acknowledged that he performed the acts and admitted that it probably happened and then used that information to terminate plaintiff is clear evidence of pretext. Fonesca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840 (9th Cir. 2004) (employee can prove pretext by showing that employer's proffered reason is unworthy of credence). The fact that a witness who does not want to participate in an investigation believes the complainant is insecure is not uncommon. However, it is uncommon for a company to take that information and

terminate an employee based on subjective beliefs that are contrary to the facts. See CSF ¶ 14. 35. Johnson controverts SOF ¶ 35. When asked by Hodges, Plaintiff provided

examples of other incidents involving Steinert. She told Hodges and Melle that she had heard Steinert tell Ortiz that she looked good enough to eat and that McClung had overheard this statement. She also told them that she had witnessed Steinert massage Cazaubon's shoulders and that Creelman had witnessed it and said it was "disgusting." Johnson objects to the statement that Creelman felt that he was being set-up because it is irrelevant. Creelman admitted that he had witnessed Steinert massaging Cazaubon's shoulders and that he said that it was "disgusting." Although McClung said that she did not overhear Steinert tell Ortiz that she looked good enough to eat, McClung told Hodges that Steinert was a touchy, feely individual and that she had seen him, when greeting individuals, doing a "rub on the back" or a "pat on the back." Exhibit 6 at 56:22-57:5; 58:3-5; 74:22-75:10; 133:4-16; 134:6-9; 213:3-13, 23-24 and 214:1-6; CSF ¶ 32. Additionally, Schwab's records indicate that on July 9, 2003, Johnson told McClung that she overheard Steinert tell Ortiz: "you smell so good my mouth is watering." Email from Johnson to McClung dated 7/9/03 attached as Exhibit 32.

Case 2:04-cv-00790-EHC

Document 151 -7-Filed 05/12/2006

Page 7 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62.

Uncontroverted. See CSF ¶ 1. Johnson controverts SOF ¶ 37. See SSF ¶ 77. Uncontroverted. See CSF ¶ 1. Johnson controverts SOF ¶ 39. See SSF ¶ 78. Johnson controverts SOF ¶¶ 40 and 41. See SSF ¶ 79. Johnson controverts SOF ¶ 41. See CSF ¶ 40. Uncontroverted. See CSF ¶ 1. See also CSF ¶ 49. Uncontroverted. See CSF ¶ 1. See also CSF ¶ 49. Johnson controverts ¶ 44. See CSF ¶ 37. Uncontroverted. See CSF ¶ 1. Uncontroverted. See CSF ¶ 1. Johnson controverts SOF ¶ 47. See SSF ¶ 80; CSF ¶ 37. Uncontroverted. See CSF ¶ 1. Johnson controverts SOF ¶ 49. See SSF ¶ 82. Johnson controverts SOF ¶ 50. See CSF ¶ 49, SSF ¶ 83. Uncontroverted. See CSF ¶ 1. Johnson controverts SOF ¶ 52. See CSF ¶ 40. Johnson controverts SOF ¶ 53. See SSF ¶ 84. Johnson controverts SOF ¶ 54. See SSF ¶85; CSF ¶ 49. Uncontroverted. See CSF ¶ 1. Uncontroverted. See CSF ¶ 1. Uncontroverted. See CSF ¶ 1. Johnson controverts SOF ¶ 58. See CSF ¶ 37; SSF ¶ 81. Uncontroverted. See CSF ¶ 1. Uncontroverted. See SOF ¶ 1. Uncontroverted. See CSF ¶ 1. Uncontroverted. See CSF ¶ 1.

Case 2:04-cv-00790-EHC

Document 151 -8-Filed 05/12/2006

Page 8 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

63. 64. 65. 66. 67. 68.

Johnson controverts SOF ¶ 63. See SSF ¶ 88. Johnson controverts SOF ¶ 64. See SSF ¶ 89. Johnson controverts SOF ¶ 65(c). See ¶ 90. Johnson controverts SOF ¶ 66. See ¶ 91. Johnson controverts SOF ¶ 67. See ¶ 92. Johnson controverts SOF ¶ 68. Steinert's comments caused Johnson to feel

nauseous, like she would want to vomit. Exhibit 1 at 50:24-51:2. 69. 70. Uncontroverted. See CSF ¶ 1. Johnson controverts SOF ¶ 70. Johnson's divorce was final in September

2005. Johnson's Second Supplemental Disclosure Statement attached as Exhibit 7. 71. 72. 73. 74. Uncontroverted. See CSF ¶ 1. Uncontroverted. See CSF ¶ 1. Uncontroverted. See CSF ¶ 1. Johnson controverts to SOF ¶ 74 because it misstates the facts. Johnson

failed a portion of the written and reading test. Exhibit 1 at 271:16-20; 272:20-273:8. 75. 76. 77. Uncontroverted. See CSF ¶ 1. Johnson objects to and moves to strike SOF ¶ 76 because it is irrelevant. Johnson controverts SOF 77. The EEOC determination states: "Based upon

its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statues. This does not certify that the respondent is in compliance with the statutes." Exhibit L to SOF. 78. irrelevant. JOHNSON'S SEPARATE STATEMENT OF FACTS ("SSF") A. Johnson's Employment Background 1. One-on-ones are quarterly conversations with employees initiated either by Johnson objects to and moves to strike SOF ¶ 78 because it is hearsay and is

a representative or by management. Team Lead Joel Price ("Price") testified that he

Case 2:04-cv-00790-EHC

Document 151 -9-Filed 05/12/2006

Page 9 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

documented Johnson's one-on-ones. None were produced. Deposition of Joel Price attached as Exhibit 6 at 22:17-21; 29:22-23. 2. Johnson's performance evaluation for 2002 rated her as "exceeds most,"

which is the second highest possible rating. Contrary to Schwab's current position, she received an "exceeds most" rating in the "Teamwork" category and a "Met All" in the Communication category. Under "Teamwork," her managers wrote: You were able to earn many LifeSaver and Star awards during this past year for helping with escalations or helping one or another of our business partners with issues. This enabled you to win one of the Quarterly Star Awards at the Quarterly Meeting. Your flexibility during the year when working the EB queue and supporting Josh with changes showed teamwork. There was a definite improvement in teamwork between you and your fellow UAT teammate while you were working on the Banking Initiative. This has been a very positive direct result of your time on the UAT team The evaluation was completed by Melle and Bourdamis and signed by Johnson and Melle. Performance Evaluation of Johnson dated 11/27/02 attached as Exhibit 7.2 3. On January 22, 2003, Melle acknowledge that Johnson was in good

standing and not currently on any form of written disciplinary actions. See email dated 1/22/03 from Melle to Johnson attached as Exhibit 8. 4. Johnson's quarterly review for the second quarter, April 1, 2003, through

June 30, 2003, ranked her as "distinguished" and stated that: She jumped in and helped with ACHOP and again took over SQ effectively. While our Admin was on leave, Marcela jumped in and took over some of her responsibilities while still completing her responsibilities accurately and on time. Marcela was able to keep her errors to a minimum and finished the quarter with a solid 99.8% processing quality score. During this past month, I have noticed a large
2

Exhibits 9-16 were produced by Schwab during the course of this litigation pursuant to Rules 26 and 34, Fed. R. Civ. P. Additionally, Exhibits 9-13, are business records.
Case 2:04-cv-00790-EHC Document 151 -10Filed 05/12/2006 Page 10 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

improvement in Marcela's interaction with her team and expected to see continued effort on her part to demonstrate Trust and Nobel intent with her teammates. Going forward Marcela should continue to concentrate and build on her communications skills with management and her team. Johnson's Quarterly Review dated 7/11/03 attached as Exhibit 9 (emphasis added). 5. On August 20, 2003, Johnson received Star Awards from her Team Lead

Joel Price and the following co-workers: Nelson Javier, Jim Navran, Teresa McClung, and Lesa Folker. Various Star Awards attached as Exhibit 10. Schwab now contends that Johnson's co-workers complained about interpersonal conflict with Johnson. SOF ¶¶ 3-13. 6. awards: · September 19, 2000, "Spot Award" stating "this quarter Marcela pitched in Throughout her employment with Schwab, Johnson received the following

many times when the team was short, by changing shifts, working OT, and helping her teammates with all processes." The award carried a $100 monetary value · · · · · · · · · · · October 10, 2000, "Spot award", carried a $200 monetary value June 12, 2001 - "You Made My Day" December 18, 2001 - "You Made My Day" February 28, 2002 - "You Made My Day" February 28, 2002 - "You Made My Day" August 7, 2002 - "You Made My Day" August 15, 2002 - "You Made My Day" 2002 Third Quarter - "Quarterly Star Winner" January 24, 2001 - "Employee of the Quarter Award" March 20, 2001 - "Kudos to You" signed by Melle February 8, 2002 - "Kudos to You" signed by Melle

Various awards attached as Exhibit 11. 7. On October 29, 2003, Melle sent an email to Price entitled "Marcela's
Document 151 -11Filed 05/12/2006

Case 2:04-cv-00790-EHC

Page 11 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

quarterly." In the email, Melle wrote the following: Marcela exhibits a strong focus on accuracy and timely processing to ensure excellent client service. She pays attention to detail in processes such as SQ and Sig. Review. She also is one of the first on the team to jump in and assist Service with overflow calls, at times proactively taking calls without requests from Supervisors. I would like her to encourage others to exemplify this valuable trait. She learns from her errors and seldom repeats them. When given research items or escalated issues, she tackles them immediately and thoroughly examines the item in question to develop a comprehensive and accurate assessment of the item before giving the conclusion back to management. Marcela should use this attribute to focus on searching for ideas that may help improve the team. Johnson Performance Evaluation dated 10/29/03 attached as Exhibit 12 (emphasis added). This review, which was drafted the day before the investigation, totally

contradicts Schwab's current contention that Johnson did not get along with her team members and had to be counseled on numerous occasions. SOF ¶¶ 3-13. B. Johnson Informed Her Manager of Inappropriate Conduct by Steinert. 8. During the October 15, 2003, meeting with Johnson, Melle asked Johnson if

she had a problem with EOR.3 Johnson indicated that she had tension with one particular person, Steinert, and that she was no longer speaking to him. Testimony of Johnson before the NLRB at p. 251:13-15, 22-24, attached as Exhibit 13; Exhibit 4 at 125:15126:4. 9. Melle continued to probe Johnson asking her what the problem was even

though Johnson said she did not want to talk about it. Johnson told Melle that there was an issue that could have been an "HR" issue. Melle continued to probe Johnson and told her such allegations were very serious and that they had to be addressed immediately

3

There is conflicting testimony as to whether Melle asked Johnson what was going on with "EOR" or "Steinert." Regardless of whether Melle said EOR or Steinert, the evidence is undisputed that she initiated the conversation regarding Steinert.
Case 2:04-cv-00790-EHC Document 151 -12Filed 05/12/2006 Page 12 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

with HR. Johnson said that she did not want to bring the issue up because she was afraid someone would get fired. Johnson told Melle that she wanted to keep her statement between the two of them. Exhibit 4 at 125:15-126:10; 128:12-129:3.; 252:7-9. C. Schwab Formed an Opinion About Johnson's Complaint Before the

Investigation. 10. Melle told Johnson that she had to report her allegation to HR "to get to the

bottom of it." Exhibit 4 at 128:12-129:3. 11. Hodges testified that prior to the investigation Johnson was on her "radar"

even though there had been no formal corrective action taken against Johnson. Hodges did not identify any other employees who were on her radar in 2003 whose performance evaluations were ranked at "exceeded" or meets expectations. Exhibit 2 at 53:1-54:18. 12. Hodge's had Johnson on her radar because she had heard that Johnson (1)

had ignored Nelson Javier; (2) had stopped speaking to Folker; (3) had ignored Allen; and (4) had some level of conflict with the trainer of a project in San Francisco. Additionally, individuals made requests to move away from Johnson. Hodges admitted that some of these reports were "anecdotal." Exhibit 2 at 57:9-58:3. Further, these "issues" contradict the facts in this case: just months before her termination Javier and Folker nominated Johnson for a Star Award and she was in a relationship with Allen. SSF ¶ 5. 13. During her conversation with Johnson on October 15, 2003, Melle had the

feeling that Johnson was trying to draw her attention away from her responsibility with the issue regarding Jeff Hanson. Exhibit 4 at 902:16-25; Melle's notes attached as Exhibit 14. 14. When reporting Johnson's comment regarding Steinert to Hodges, Melle

said that she had "some very specific feelings about this comment from Marcela as a pattern exists that she bring things up during difficult conversations that are entirely out of left field, I think, in an effort to bring the attention away from her and onto others." Email from Melle to Hodges dated 10/17/03 attached as Exhibit 15.

Case 2:04-cv-00790-EHC

Document 151 -13Filed 05/12/2006

Page 13 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

D.

Schwab Contacted the Alleged Harasser Before the Investigation Began. 15. On October 29, 2003, at 11:22 a.m. Steinert forwarded to Price a copy of an

email that he had sent to Johnson in August asking her why she was not speaking to him. Email string between Steinert and Price attached as Exhibit 16. 16. At 1:54 pm, Steinert told Price that he was free to share the e-mail with

Melle and that he would be happy to answer any questions she may have. Exhibit 16. 17. Price responded with the following message: Thanks Ed. I appreciate your honesty, candor and openness and your sincere attempts to demonstrate noble intent in repairing the relationships with both Marcela and Teresa. I also appreciate your efforts to avoid further conflicts and to keep negative impacts from recurring on the team. Cheri and I will work to preserve your intent and represent your integrity regarding the emails you sent me copies of within our coaching settings. I want to assure you that we are doing our best to correctly handle this. Exhibit 16 (emphasis added). 18. There is no evidence that Schwab told Johnson that they appreciated her

honesty or candor or that they were going to work to preserve her intent and represent her integrity. E. Schwab Compelled Johnson to Participate in the Investigation. 19. Johnson called in sick to work on October 29, 2003. 12/18/03 Email string

between Melle and her boss, Director Lisa Gee, dated 12/18/03 attached as Exhibit 26. 20. Hodges set a meeting for her to meet with Melle and Johnson on October

30, 2003. Exhibit 2 at 51:7-52:4. 21. 22. Prior to the investigation, Johnson was not in danger of losing her job. Id. Johnson was compelled to participate in the investigation regarding Steinert.

Exhibit 2 at 78:14-16. 23. Immediately after Hodges set the meeting, Johnson went to Melle crying.

Johnson said that she did not want to go to the meeting, did not want to get anyone into
Document 151 -14Filed 05/12/2006

Case 2:04-cv-00790-EHC

Page 14 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

trouble, and that she had given Melle the information about Steinert in confidence. Melle told her that she had a responsibility to take the issue to HR. Later, Johnson told went back to Melle and told her that she could not go through with the meeting, that "she was so upset that she had thrown up and was feeling very ill," and that she was in no frame of mind to speak with Hodges because one of her aunts had recently been diagnosed with cancer and, a week earlier, another Aunt had died. Melle told Johnson that she did not have a choice. Exhibit 4 at 129:4-131:4; 165:4-12. 24. Immediately after speaking to Johnson, Melle informed Hodges that

Johnson was ill, had thrown-up, and could not go through with the meeting. Melle said: "I just wanted you to know what the situation will be like. FYI, she just found out that one of her aunts has cancer and may not have long to live. That is another reason she isn't `up to going through with this.'" Exhibit 2 at 86:12-87:21 and Email string between Melle and Hodges attached as Exhibit 17. 25. Hodges told Melle: "I walked over to her desk a few minutes ago. She is

clear that we are going to meet." Even though Hodges responded to the email within 23 minutes of receiving it, she testified that she did not actually read the email. 26. Schwab fails to advise this Court that Johnson was in "no frame of mind" to

participate in the October 15, 2003, meeting and that the only reason the meeting happened was because Hodges did not read the email to which she responded. Schwab admits that if Hodges had read the email, the meeting would not have happened. A jury could reasonably conclude that Hodge's was lying about not reading the email. Exhibit 2 at 85:10-25; 91:13-18; Exhibit 17. 27. Prior to the meeting, Johnson saw John Creelman ("Creelman"), another

employee from EOR, on a smoke break and asked him if he recalled seeing Steinert massage Cazaubon's shoulders and stating that it was "disgusting." Exhibit 1 at 161:1525; 162:8-11. Creelman confirmed that he did. Exhibit 1 at 161:22-25. 28. Creelman asked Johnson why she was asking and she responded that she

Case 2:04-cv-00790-EHC

Document 151 -15Filed 05/12/2006

Page 15 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

had a meeting with HR. Exhibit 1 at 161-4. 29. 30. Creelman told Johnson that someone would get fired. Exhibit 1 at 161:1-4. After the conversation, Creelman told his supervisor, Jeff Bosio ("Bosio") Testimony of Hodges before the NLRB at 52:6-24,

that Johnson approached him. attached as Exhibit 18. 31.

Johnson did not originally tell Hodges that she had spoken to Creelman

because she was afraid to get him in trouble. Exhibit 1 at 176:9-14. 32. During the October 30, 2003, meeting, Johnson was crying and specifically

told Hodges and Melle that she did not want to talk about the issue and asked if they could "just forget the whole thing." Regardless, Hodges told Johnson that she had a legal obligation to follow up on any allegation of inappropriate conduct. Exhibit 1 163:5-16, 164:15-8; Exhibit 4 at 55:3-16. 33. Hodges asked Johnson if she had witnessed Steinert engage in similar

behavior with other employees. Johnson said that she had witnessed Steinert massage Barbara Cazaubon's ("Cazaubon") shoulders and that John Creelman ("Creelman") had witnessed it and commented that it was "disgusting." Exhibit 18 at 56:22-57:5; 58:3-5, attached as Exhibit 6; Exhibit 4 at 134:6-9. 34. Johnson also told them that Steinert had told Ortiz that Ortiz "looked good

enough to eat" and that McClung had overheard the comment. Exhibit 4 at 133:4-16; Exhibit 32. 35. Again, Johnson indicated to Hodges that she did not want to report

Steinert's behavior, that she did not want to get anyone fired, and that she had stopped talking to Mr. Steinert. Exhibit 13 at 59:8-20. 36. The meeting concluded. Hodges told Johnson she could return to her desk

but not to leave her desk. Exhibit 1 at 180:23-181:5. F. Schwab's Misrepresentations. 37. Melle claims that she has had to counsel Johnson numerous times for her

Case 2:04-cv-00790-EHC

Document 151 -16Filed 05/12/2006

Page 16 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

unprofessional attitude and poor treatment of co-workers. Exhibit B, ¶¶ 4 and 6 to SOF. 38. With the exception of one incident from 2000, Johnson's personnel file and

performance evaluations are devoid of any such counseling. SSF ¶¶ 1-7. 39. Melle claims that in April 2003, she received information from co-workers

regarding Johnson's behavior toward them. Exhibit ¶¶ 7 and 8 to SOF. 40. This information was not documented or included in Johnson's quarterly

review for that time period. SSF 1-7. 41. SOF. 42. Melle later said that Hanson told her that Johnson asked him and some Melle said that Hanson said that Johnson "yelled at him." Exhibit B, ¶ 9 to

employees to "be quiet." CSF ¶ 17. 43. 10 to SOF. 44. Hodges categorized Johnson's allegations as at least partially true. Exhibit 2 Melle categorized Johnson's allegations as "completely false." Exhibit B, ¶

at 129:2-130:21. 45. Melle then later acknowledged that Stienert "has done this to other women

on his own team," and it was not good. Email to Gee from Melle attached as Exhibit 19. 46. Schwab later changed its story to the EEOC and said that there was

"absolutely no evidence" to suggest that Johnson's claim of sexual harassment had any merit. Exhibit 20 at p. 11. 47. 48. CSF ¶ 29. 49. He changed his story for a third time and said: "If that is what you are Steinert originally denied massaging Johnson's shoulders. CSF ¶ 29. He then later said that it was possible that he had massaged her shoulders.

hearing, then that's probably what happened." CSF ¶ 29; Exhibit 13 at 65:22-66:2. 50. Schwab failed to tell the EEOC and this Court that Steinert had changed his

story. Exhibit 20; CSF ¶ 29.

Case 2:04-cv-00790-EHC

Document 151 -17Filed 05/12/2006

Page 17 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

51. 52.

Steinert is a "touchy" person. Exhibit 2 at 129:2-130:21. Steinert told Johnson that he liked the way she changed her hair and that she

looked nice and he talked to her about her tummy and her "boobs." Exhibit 18 at 66:967:2. 53. Steinert massaged another female co-worker's shoulders at least once a

week. Exhibit 18 at 65:5-11; 108:11-16. 54. Steinert acknowledged that his behavior could be viewed as inappropriate

workplace conduct. Exhibit 18 at 65:5-11; 108:11-16. 55. Schwab failed to tell the EEOC that Steinert massaged other female

employees in the workplace. Exhibit 20. 56. Schwab told the EEOC that Hodges met with Steinert "just to be on the safe

side" and issued him a verbal warning to discontinue massaging any Schwab employee, even if invited to do so. Exhibit 20 at p. 11. 57. Schwab failed to tell the EEOC that the discipline issued to Steinert was

based on his admissions that he massaged another female employee (Caubazon) and probably massaged Johnson. Exhibit 20. 58. Hodges instructed Steinert to immediately discontinue massaging any

employee within the work place and reminded him of Schwab's policy against sexual harassment. Exhibit C, ¶ 15 to SOF. 59. Hodges told Steinert "the action of massaging a female employee in the

workplace could be construed as sexual harassment under Schwab's policy" and that she was going to inform his manager that such conduct was not a workplace activity. Exhibit 18 at 67:3-8; 68:9-13; 69:19-70:1. 60. Hodges statement that his actions could be construed as "sexual harassment

under Schwab's policy" contradicts Schwab's statement to the EEOC that Johnson's allegations were "baseless" and its statement to this Court that she "fabricated the claim." SSF ¶¶ 43, 45, 53, 54, Exhibit 20.

Case 2:04-cv-00790-EHC

Document 151 -18Filed 05/12/2006

Page 18 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

61.

Hodges also told Steinert that even if Cazaubon was not offended by the

conduct, massaging an employee was not appropriate workplace activity and "Schwab was not a massage parlor." Exhibit 18 at 65:15-21; 108:16-18, 25-109:2; 110:5-13. 62. Hodges statement contradicts Schwab's statement to the EEOC that Stienert

was counseled "just to be on the safe side." Exhibit 20 at p. 11. 63. Schwab told the EEOC that early in the investigation "Creelman informed

[HR] about [Johnson's] efforts to pressure him into lying for her to corroborate her baseless claim for harassment." Position Statement attached as Exhibit 20, p. 10. 64. Schwab's statement to the EEOC contradicts Schwab's current testimony

that Johnson never made a report and that her allegations were partially true. SSF ¶ 44; CSF ¶ 30. 65. Schwab told the EEOC that Johnson "asked Creelman to corroborate her

story and asked him to lie and say that Mr. Steinert had harassed other women at Schwab, such as Barbara Cazaubon. Mr. Creelman refused and told [Johnson] that he would not support her claim of harassment because it was untrue." original). 66. Schwab credited Creelman's (white male) statements even though the facts Exhibit 20 (emphasis in

that Schwab knew at the time about Johnson's allegations. SSF 8 67. Hodges knew that Johnson asked Creelman to confirm that he had seen

Steinert massage Cazaubon. Exhibit C, ¶ 16 to SOF. 68. Johnson asked Creelman if he remembered seeing Steinert massage

Cazaubon's shoulders and saying that he thought it was "disgusting." Exhibit 18 at 74:2275:10. 69. Creelman said the he did remember seeing it and that he said it was

"disgusting." Id. 70. Schwab told the EEOC that all of the witnesses identified by Johnson

"denied her allegations of harassment." Exhibit 20.

Case 2:04-cv-00790-EHC

Document 151 -19Filed 05/12/2006

Page 19 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

71.

This statement contradicts the fact that Stienert admitted that he massaged

Cazaubon's shoulders and said that he probably massaged Johnson's. SSF ¶¶ 53, 54. 72. It also contradicts that McClung said that she wished that Steinhart could

keep things on a professional level and that he had been irritating her since June 2003, and in October 2003, she had requested to move away from his desk. Exhibit 18 at 208:22214:6. 73. McClung also told Hodges that Steinert had made "unwelcome comments."

Exhibit 18 at 208:22-214:6. 74. McClung also told Hodges that Steinert was a touchy, feely individual and

that she had seen him, when greeting individuals, doing a "rub on the back" or a "pat on the back." Exhibit 18 at 56:22-57:5; 58:3-5; 74:22-75:10; 133:4-16; 134:6-9; 213:3-13, 23-24 and 214:1-6. 75. Steinert's manager, Bosio, told Hodges that he had also witnessed Steinert

massaging Cazaubon and that he had been present for most of the massages. Exhibit 18 at 71:3-18. 76. Bosio also told Hodges that other employees had witnessed the massages.

Exhibit 18 at 71:3-18. G. Johnson Believed that Steinert Had Sexually Harassed Her. 77. Steinert made comments, on a daily basis, about the way that Johnson

looked, the size of her breasts, the fact that she had lost weight, that certain articles of clothing would look good on her, and what she ate or drank; he also interrupted and commented on her personal conversations. Johnson stopped wearing skirts and started wearing pants as a result of his comments. Some of the comments caused Johnson to feel nauseous, like she would want to vomit. Exhibit 1 at 42:18-44:15; 45:7-23; 50:24-51:2; 53:6-18; 55:17-56:7; 57:22-58:13; 190:14-191:7. 78. Steinert began making unwelcome comments to Johnson when she had

started losing weight in 2003. Johnson recently saw a picture of herself from her July 11,

Case 2:04-cv-00790-EHC

Document 151 -20Filed 05/12/2006

Page 20 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

2003, birthday in which she was very thin. The picture reminded her that it was in July 2003 that she had lost most of her weight and that is when Steinert began making comments to her. The comments continued until approximately August or September 2003. Exhibit 1 at 46:15-48:6; 48:18-49:17; 190:14-191:2; 246:11-247:15. 79. Johnson testified that she could not give an exact number of times that

Steinert had massaged her shoulders and that she had previously given estimates. She does not recall exactly how many times it happened because she did not count them or keep a journal. Exhibit 1 at 208:5-209:3; 239:24-240:8; 245:5-246:9. 80. Johnson testified that she thought that Steinert's behavior was inappropriate

and unwelcome. Although she never used the term "sexual harassment" she believed that his behavior was sexually harassing. Johnson also testified to numerous acts by Steinert that she thought were sexually harassing. See CSF ¶ 37; Exhibit 1 at 68:6-20; 169:23171:116-25; 172:25-173:19. 81. Steinert's comments and conduct made Johnson uncomfortable at work,

caused her to change the way she dressed, and sometimes made her nauseous. Id. 82. Johnson did not tell Steinert's to stop his conduct or to stop making

comments to her because she believed that his position within Schwab was a more significant position than hers because he carried a lot of brokerage licenses. She also did not want to deal with him. She thought that she could deal with it by ignoring him. Exhibit 1 at 44:19-23; 202:23-203:1; 228:23-229:4. 83. Johnson was afraid that someone would get fired if she brought the issues

regarding Steinert to management. Exhibit 1 at 248:2-10; 250:25-251:12. 84. Johnson worked directly next to EOR; one aisle, wide enough for someone

to walk down, separated Johnson's department from EOR. Exhibit 1 at 54:19-55:13 85. Although no one in EOR was in charge of Johnson's work, she viewed those

employees at a higher level than herself because they held more licenses. Exhibit 1 at 44:19-23; 202:23-203:1.

Case 2:04-cv-00790-EHC

Document 151 -21Filed 05/12/2006

Page 21 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

H.

Schwab Terminated Johnson's Employment 86. Schwab gave reasons different, than those given to the EEOC or those

presented to this Court, for Johnson's termination in their internal documentation. The Recommendation for Company Initiated Termination for Johnson states: During a formal HR investigation instigated due to a comment made by her, Marcela Johnson provided inconsistent and inaccurate statements about another coworker's actions towards her. She also implicated others as witnesses to or recipients of unwelcome behaviors from this co-worker and when questioned, these employees were unable to confirm her statements and denied that they had witnessed the incidents or interacted with her as she had claimed. Recommendation for Company Initiated Termination attached as Exhibit 21. 87. Hodges did not review any of Johnson's files prior to recommending her

termination. Exhibit 2 at 56:4-14; 58:19-59:9. 88. Johnson began looking for a job almost immediately after she was

terminated. Each week, she applied for unemployment, and for various jobs each week. She looked for jobs at Salt River Project and the City of Phoenix. She filled out more than fifteen applications. She applied at various banks and at brokerage firms, including Sun America and Merrill Lynch. She also applied for at least ten or twelve optical positions at chains and private firms, including EyeMasters and LensCrafters. Exhibit 1 at 254:1-14; 255:2-12; 257:6-24; 259:14-24; 261:7-16; 262:5-16; 264:2-10, 23-25; 265:1-5, 14-25; 266:1-22; 267:3-6; 283:11-18. 89. Johnson told Mr. Allen in November 2003 that she was "better off without

Schwab" because she is honest and the people at Schwab were not honest. Exhibit 1 at 273:24-274:24. 90. Johnson left Alex Optical to take a position at Primary Eye Care Center so

that she would not have to work "mall hours," i.e. nights and weekends. Exhibit 1 at 284:3-13.

Case 2:04-cv-00790-EHC

Document 151 -22Filed 05/12/2006

Page 22 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

91.

Johnson is not looking for other employment because she is afraid that

Schwab will subpoena any new employer. Exhibit 1 at 288:21-289:1. 92. As a result of her termination from Schwab, Johnson suffers from

headaches, stomachaches, inability to sleep, and acne, all of which started the day she was fired and that she attributes to stress from her termination from Schwab. Exhibit 1 at 19:19-20:19; 23:6-9; 24:24-25:18; 26:14-25. I. After Johnson's Termination, Schwab Collected Negative Information About Her and Checked-up on Steinert. 93. On November 6, 2003, the same day that Johnson is fired, Melle sent an

email to herself. In the email Melle describes a meeting that happened on April 23, 2003, with Johnson regarding Johnson's behavior with the team. On December 15, 2003, Melle forwarded the email to Hodges. Emails from Melle dated 11/6/03 and 12/15/03 attached as Exhibit 22. 94. On November 10, 2003, Price sent an email to Steinert, which stated: Hi Ed. I know you are out on vacation right now, but I just got back today from vacation myself today. When you come in, I was hoping you'd let me know how you are doing. I understand that last week was an amazing experience. Just wanted to touch base and see if you are okay. Email from Price dated 11/10/03 attached as Exhibit 23. 95. On November 11, 2003, Price sent and email to Melle that contains various

statements regarding Johnson's interactions with team members. The next day, Melle forwarded the email to Hodges. Email from Price dated 11/11/03 attached as Exhibit 24. 96. On December 16, 2003, Price sent an email to Melle with the subject line

"HR." Attached to the email is a document that contains descriptions of issues regarding Johnson. On December 18, 2003, Melle forwarded the email to Gee with the message "stuff on Marcela from Joel." Email from Price dated 12/16/03 attached as Exhibit 25. 97. On December 18, 2003, Melle sent Gee an email with the subject line The email contains an attachment that documents

"discussions with Marcela."

Case 2:04-cv-00790-EHC

Document 151 -23Filed 05/12/2006

Page 23 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

conversations she had with Johnson on October 15 and 28 and November 6, 2003. Email from Melle to Gee dated 12/18/03 attached as Exhibit 26. 98. According to Schwab, they have not, previously to Johnson, continued to

investigate personnel matters of an individual who was involuntarily terminated. Deposition of Victoria Wallace [30(b)(6) witness] at pp. 24:3-16, attached as Exhibit 27. J. Schwab's Policies. 99. Hodges reports to Victoria Wallace ("Wallace"). Wallace expects her

employees to follow Schwab's policies when conducting HR investigations. Wallace has the final approval on all termination decisions. Exhibit 27 at 10-21-11:2; 20:12-21:16; 56:22-57:9. 100. Schwab's anti-harassment policy defines encourages "employees who

believe that they are being harassed or discriminated against at work by anyone ... to take action immediately. The most important point is that the employee reports the problem." Exhibit G to SOF. 101. The policy also provides instructions to managers on how to deal with such

complaints. Specifically, it provides: "When an employee brings alleged harassment or discrimination to a manager's attention, the manager will: obtain whatever the employee is willing to share at that time or offer to put the employee in immediate touch with Human Resources ... not retaliate against the employee for raising the complaint." Id. at pp. 5, 6. 102. Schwab compelled Johnson to provide additional information even though

she was physically and emotionally ill. SSF ¶¶ 19, 23-25. 103. The policy instructs employees not to "discourage others from using the

internal complaint reporting process." Exhibit G, p. 5 to SOF. 104. Creelman told Johnson that if she reported to HR, someone would get fired.

CSF ¶ 30, SSF ¶¶ 29, 30. There is no evidence that Creelman was disciplined for discouraging Johnson from making her report or telling her not to use his statements in the

Case 2:04-cv-00790-EHC

Document 151 -24Filed 05/12/2006

Page 24 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

investigation. 105. The policy instructs managers to "take the lead in providing a professional

work environment and communicating company policy on the prohibitions against illegal harassment, "make every effort to present and address illegal harassment and discrimination and provide leadership conducive to creating a professional work environment." Exhibit G to SOF. 106. Bosio knew that Steinert had massaged Cazaubon's shoulders but did

nothing. SSF ¶ 76. 107. Schwab's anti-retaliation policy does not warn employees that they can be

fired after making a complaint if Schwab does not believe them or for making a statement that is deemed to be false under the business conduct policy. Exhibit 2 at 141:10-18; 142:4-15. 108. Schwab has a policy called "Human Resources: Conducting Internal EEO

Investigations." Exhibit 27 at 42:7-43:16 and policy attached as Exhibit 28. 109. The policy sets forth various guidelines for structuring and implementing an

HR investigation. Exhibit 28. 110. The policy instructs HR to have the employee put the allegation in writing

or document the complaint and have the employee review for accuracy. Exhibit 28 at Schwab 02765. 111. Hodges did not have Johnson put her complaint in writing or have her

review her documented version. Exhibit 18 at 64:1-15. 112. The policy instructs HR to explain the policy against retaliation. Exhibit 28

at Schwab 02767. 113. 22-25, 32-36. 114. The policy instructs HR to evaluate only the facts, not generalized opinions Schwab never explained the policy against retaliation to Johnson. SSF at ¶¶

Exhibit 28 at Schwab 02771.

Case 2:04-cv-00790-EHC

Document 151 -25Filed 05/12/2006

Page 25 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

115.

Schwab credited Creelman's opinions about what Johnson's intentions were

instead of the facts. CSF ¶¶ 30 and 31. 116. Schwab believed Creelman, a white male, over Johnson because Johnson

talked to Creelman moments before she went to meet with Melle and Hodges regarding Steinert. Exhibit 2 at 136:23-137:3, 8-12, 19-25; 138:1-9. 117. The policy instructs Schwab to evaluate the environment in the workplace.

Depending on the nature and the circumstances of the allegations, determine whether others have witnessed or experienced similar behavior from the same players. Exhibit 28. 118. Schwab completely ignored Steinert's actions toward Cazaubon and

McClung. Exhibit 20. 119. The policy instructs Schwab to inform the complainant of the outcome.

Exhibit 28 at Schwab 02773. 120. 22-25; 32-36. 121. The policy states: "If the results of the investigation are inconclusive, or the Schwab never informed Johnson that they had disciplined Steinert. SSF ¶¶

complaint is deemed unfounded, explain the reasons why and reinforce the policy against discrimination/harassment and retaliation. Exhibit 28. 122. Schwab did not reinforce the policy against retaliation with Johnson. SSF

¶¶ 22-25; 32-36. 123. The policy instructs Schwab to remind the complainant that her complaint

was taken seriously and that you appreciate that she came forward. Exhibit 28. 124. Schwab did not remind Johnson that her complaint was taken seriously and

that they appreciated that she came forward. SSF ¶¶ 22-25; 32-36. 125. In 2003, Schwab did now know whether it was illegal to discipline an

employee for bringing a complaint under its harassment policy. Exhibit 27 at 66:16-23. 126. Schwab's corporate integrity policy instructs Schwab to be completely and

absolutely open and honest to an entity such as the EEOC. Exhibit 27 at 70:3-25.

Case 2:04-cv-00790-EHC

Document 151 -26Filed 05/12/2006

Page 26 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

127. K.

Schwab made various misrepresentations to the EEOC. Exhibit 20.

Because of Johnson's Complaint, Schwab Was Able To Mitigate Risk Under Its Policies. 128. Touching, such as massaging someone's shoulders or other parts of their

body during work hours at Schwab is inappropriate conduct. Exhibit 2 at 80:16-19. 129. The touching nature of what Johnson said happened to her is something that

should be brought to the attention of HR because Schwab benefits by employees coming forward and reporting what is going on in the workplace with respect to inappropriate conduct. Exhibit 2 at 80:7-15. 130. As a result of Johnson informing Melle about Steinert's behavior toward her

and other female employees, HR was able to become aware of that activity and take action to stop it. Exhibit 2 at 80:24-81:16. 131. Johnson's statements to management regarding Steiner allowed Schwab to

mitigate risk according their HR policies. Exhibit 2 at 81:17-19. L. Johnson Suffered Damages as a Result of Her Termination. 132. On August 27, 2005, Johnson began working as an optician at Primary Eye

Care center earning $17.50 per hour. She does not receive any benefits. She is currently employed there. Plaintiff's First Amended and Supplemental Responses to First Set of Non-Uniform Interrogatories attached as Exhibit 29. 133. Schwab's expert calculated an average 4.48% increase in yearly salary for

Johnson. Thus, if Johnson had not been fired from Schwab, she would have earned $17.50 an hour in 2004, $18.28 an hour in 2005, and $19.10 an hour in 2006. Schwab's Supplemental Expert Disclosure Statement attached as Exhibit 30. 134. At Schwab, Johnson would have been eligible to receive medical benefits as

early as October 2005. At Schwab, she also received benefits, including dental insurance, vision insurance, life insurance, disability insurance, and 401K benefits. Schwab's Third Supplemental Answers to Plaintiff's First Set of Non-Uniform Interrogatories attached as

Case 2:04-cv-00790-EHC

Document 151 -27Filed 05/12/2006

Page 27 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
QBPHX\115637.0000 2\2009776.3

Exhibit 31. 135. As a result of her termination from Schwab, Johnson has not been able to

spend as much time with her children. Exhibit 1 at 109:12-110:12. RESPECTFULLY SUBMITTED this 12th day of May, 2006. QUARLES & BRADY STREICH LANG LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Luis F. Ramirez Attorneys for Plaintiff Marcela Johnson

I hereby certify that on May 12, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic filing to the following CM/ECF registrants:

Joseph T. Clees
Karen Gillen Michelle Ganz Ogletree, Deakins, Nash, Smoak & Stewart, P.C. A copy of this document was provided to The Honorable John W. Sedwick s/Dawn C. Valdivia

Case 2:04-cv-00790-EHC

Document 151 -28Filed 05/12/2006

Page 28 of 28