Teresa Baumann Deposition - Main Justice

Government Exhibit 5R
Deposition of Teresa Baumann
Direct Examination
Questioner: Mike Carroll
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MARTHA A. FAGG, )
)
)
Plaintiff, )
)
-vs-
ERIC H. HOLDER, JR., ATTORNEY )
GENERAL OF THE UNITED STATES, )
)
Defendant. )
________________________________)
DEPOSITION OF TERESA BAUMANN
) Case No. 12-CV-04029-RGK
)
Deposition of TERESA BAUMANN, taken on behalf of the
Plaintiff, before Sheila M. Cassady, Certified Shorthand
Reporter of the State of Iowa, at Federal Courthouse, 111
Seventh Avenue SE, Cedar Rapids, Iowa, on Monday, July 1,
2013, at 9:35 a.m.
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APPEARANCES
For the Plaintiff:
For the Defendant:
MICHAEL J. CARROLL, ESQ.
AMY DAVIS, ESQ.
Babich Goldman, P.C.
501 S.W. Seventh Street, Suite J
Des Moines, IA 50309
JAMES KUHN, SR., ESQ.
Assistant U.S. Attorney
219 South Dearborn Street
Chicago, IL 60604
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SHEILA M. CASSADY - CERTIFIED SHORTHAND REPORTER
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INDEX
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WITNESS
DIRECT
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Teresa Baumann 3
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EXHIBITS
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EXHIBIT
MARKED
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40 - Sworn Statement of Teresa Baumann 18
41 - E-mail chain 73
42 - Handwritten notes 75
43 - Handwritten notes 75
44 - E-mail chain 77
45 - E-mail chain 82
46 - E-mail between T. Baumann and S. Rose 83
47 - Performance Improvement Period Plan draft 89
48 - Performance Improvement Period Plan final 89
49 - E-mail chain 91
65 - Conversation Record dated 2/18/11 110
66 - E-mail chain 111
67 - Handwritten notes 112
68 - E-mail chain 115
69 - E-mail between K. Jones and T. Baumann 115
70 - Handwritten notes 117
71 - E-mail chain between T. Baumann and M. Fagg 119
72 - E-mail from T. Baumann to M. Schwebach 123
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EXHIBITS
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MARKED
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73 - E-mail from T. Baumann to K. Jones 125
74 - Reprimand dated 5/14/10 126
75 - Proposed Suspension dated 7/14/10 126
76 - Proposed Suspension dated 12/3/10 126
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PROCEEDINGS
TERESA BAUMANN,
called as a witness by the Plaintiff, being first duly sworn
by the Certified Shorthand Reporter, was examined and
testified as follows:
DIRECT EXAMINATION
BY MR. CARROLL:
Q. Will you say your name?
A. Teresa Baumann.
Q. Have you ever given a deposition?
A. No.
Q. I will try to be as respectful of your time as I can
be, although I think this might take some time. If you need
a break today, other than ordinary breaks that we will have
to take, please let me know. Okay?
A. I will.
Q. I should tell you that I'm not going to ask you
questions in chronological order that are pertinent to this
case. I will probably bounce around a little bit. I'm not
doing that to confuse you. If I am confusing you, please
tell me. Okay?
A. Yes.
Q. And I think that's it.
All right. So what is your current occupation?
A. I'm an attorney, Assistant United States Attorney.
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did serving and swing shifting, and then helped open the
restaurant in West Des Moines.
Q. Sure. How long were you there?
A. I left in, I think, early May of '98, because I
started law school then.
Q. In '98?
A. Yes.
MR. CARROLL: Off the record a minute.
(A discussion was held off the record.)
BY MR. CARROLL:
Q. You started law school in 1998?
A. Yes.
Q. In what month did you start law school?
A. May.
Q. Summer?
A. Yes.
Q. At Iowa?
A. Yes.
Q. When did you graduate from law school?
A. May of 2001.
Q. What was your first job out of law school?
A. I worked at a law firm in Minneapolis called Ryder,
Bennett, Egan & Arundel.
Q. What kind of law did you practice?
A. I was an associate in the Litigation Division, but I
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mostly did bankruptcy and debtor-creditor work.
Q. For how long?
A. Nine months.
Q. Then where did you go?
A. Here.
Q. In what capacity did you come to Cedar Rapids?
A. I was hired as a Special Assistant United States
Attorney, or SAUSA, in the HIDTA program, which is High
Intensity Drug Trafficking Area program, so in the Criminal
Division.
Q. Had you attempted to apply for or be hired by the
United States Attorney while you were still in law school?
A. No. I had accepted the offer in Minneapolis.
Q. And when did you start looking? Almost
immediately?
A. I would say about six months into working.
Q. Doing the bankruptcy and debtor-creditor work?
A. Yes.
Q. Nobody could blame you for wanting to get out of
that. Was that a big law firm, Ryder, Bennett?
A. Yes. It's since dissolved, but it was -- I wouldn't
even want to guess how many attorneys, but I considered it
very large.
Q. How long were you a SAUSA/HIDTA attorney?
A. Until 2005, June of 2005.
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Q. As a SAUSA/HIDTA attorney, were you what I would
call essentially a line prosecutor?
A. Yes.
Q. Doing all criminal work; right?
A. Yes, except for the habeas post-conviction work.
Q. Right. In that capacity as a SAUSA, did you have
any management duties?
A. No.
Q. Where did you go in 2005?
A. I went to work for now-Chief Judge Linda Reade.
Q. In what capacity?
A. Elbow law clerk.
Q. I've seen that term used. Is that her term? Is
that -- Where does that term come from?
A. I believe it's the administrative office of the
court's term for a kind of more permanent long-term clerk
position, rather than a one-year or two-year position. It's
kind of open-ended.
Q. Okay. How long did you work for Judge Reade?
A. I worked for her until early 2008.
Q. As her elbow law clerk?
A. Correct.
Q. In that capacity, did you have any management
responsibility?
A. I -- I was sort of the lead law clerk, and I helped
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-- I don't know -- "manage" might be too strong of a word,
but I assisted Judge Reade in kind of managing chambers. She
would have clerks come to me if they didn't know what they
were doing.
Q. Did you have any hiring authority?
A. No. I helped her interview, but she had the
authority.
Q. Or firing authority?
A. No.
Q. Performance evaluations?
A. No.
Q. In 2008, where did you go?
A. The Iowa Attorney General's Office at the Department
of Transportation in Ames.
Q. Why did you leave Judge Reade as the elbow law
clerk?
A. Mostly, because my son -- I had a boy, my second
child, who was very, very disabled, and we moved closer to
family.
Q. Okay. And was that in Ames?
A. Yes. Well, my in-laws were in Carroll, Iowa, which
is about an hour from Ames.
Q. Okay. And with the Iowa Attorney General, what did
you do?
A. Civil work, employment discrimination cases, a lot
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of client counseling within the Department of Transportation,
did OWI cases, the administrative revocation of driver's
licenses.
Q. Okay. How long did you work at the Iowa Attorney
General?
A. Until January of 2010.
Q. When in '08 did you join them?
A. I believe it was early in February. It might have
been late January.
Q. So you were there approximately two years?
A. Right.
Q. When you say you did civil work, including
employment discrimination and client counseling, and the OWI
stuff, setting aside the OWI, focusing just for the moment on
employment discrimination, what kind of work did you actually
do? Did you defend cases?
A. Yes.
Q. Did you --
A. Mostly defensive work. The client counseling side
would have been the affirmative work, but we had some tort
cases where there would be accidents on an Iowa highway, and
a law firm would sue on behalf of the victim for the road not
being in proper condition or signs not being posted
properly.
Q. Okay. So you did some personal injury, some
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Fagg's inability to remain in the office working during
office hours. There was an outstanding obligation, is the
term we used at the U.S. Attorney's Office, for additional
funds for a litigation consultant, I believe, in the Hoffman
matter, which was involving a lit consultant named Terry
Lockie, that Rich Murphy and Stephanie Rose were trying to
figure out why additional funding was needed and were having
difficulty getting the information from Ms. Fagg.
Stephanie was basing a lot of her concern on
information she had received from various people in the Sioux
City office, and some of the judges who she had met with.
Q. Okay. The first thing you told me was that
Stephanie told you that she was concerned about Martha's
ability to remain in the office, is how I'm paraphrasing what
you told me. Is that what she told you on or about January
19, the day you started working as Martha Fagg's
supervisor?
A. Yeah. I mean, prior to me coming on on January 19,
I knew that there were issues in the Civil Division that
Stephanie wanted to deal with immediately. But because I was
not an employee yet, you know, she could not discuss those
things with me before I was on board. And so very
immediately when I became an Assistant United States Attorney
and took the oath, she started sharing with me the concerns
she had.
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direct knowledge of Martha's whereabouts on a day-to-day
basis prior to becoming FAUSA?
A. Not until I became FAUSA.
Q. Who was her boss before you were her boss?
A. Most immediately, Larry Kudej and Tim Duax were her
immediate supervisors. Larry, for substantive civil
purposes; Tim, for leave, and, you know, knowing her
whereabouts purposes.
Q. Because he was a civil -- He was the Branch Chief in
Sioux City?
A. Yes.
Q. Okay. In terms of the information that Ms. Rose
shared with you once you became FAUSA, she shared with you
she had concerns about Martha's attendance?
A. Yes.
Q. And I think you told me earlier that was based on
what people had shared with her from the Sioux City office?
A. Yes.
Q. Did she tell you what had been shared with her and
by whom?
A. I know that Kevin Fletcher was more boisterous than
others, probably, in sharing with her that Martha didn't work
a full day, and didn't know what she was doing in the Civil
Division.
Q. Say that again. Didn't work a full day, and didn't
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but other attorneys in the Civil Division, were working when
they said they were working.
Q. Who did Ms. Rose direct to get door codes on?
A. AUSA #1 AUSA #2 and Martha.
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Q. How old was
AUSA #1
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A. I have no idea.
Q. Where is AUSA #1 now?
A. Upstairs in the Civil Division.
Q. When you say " do you mean
AUSA #2 AUSA #2
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A. Yes.
Q. How old is AUSA #2
?
A. I don't know.
Q. Did Stephanie Rose or you tell AUSA #1
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AUSA #2
, or Martha Fagg that Stephanie Rose had
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instructed door codes to be pulled on those three people?
A. No.
Q. Were the door codes pulled on anyone else at that
time to your knowledge?
A. No.
Q. Why did Stephanie Rose tell you to pull door
codes?
A. Because these are the three individuals who would be
seen walking down the street at 3:00 in the afternoon getting
a cup of coffee, or not coming back to the office after
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lunch, or taking a two- or three-hour lunch break. So that's
why they were singled out, to use your word.
Q. Who is it that told Stephanie Rose, if you know,
that Martha Fagg would be seen walking down the street at
3:00 in the afternoon getting a cup of coffee?
A. I didn't say it was Martha.
Q. Okay. What was the information based on that caused
Ms. Rose to pull door codes on Martha Fagg?
A. That she would come into the office early, 7:00 a.m.
or so, work until 11:00, 11:30 a.m., and leave and not come
back.
Q. Who was that from?
A. Stephanie told me that.
Q. Okay. And who told Stephanie that?
A. You would have to ask Stephanie that.
Q. Okay. Do you know, did the door codes information
show that Martha worked from 7:00 to 11:30 and then never
came back?
A. It showed that she came in early, but there is no --
We don't door code out of the building, so it didn't show
when she left the building.
Q. So the door codes would only tell you theoretically
when she was coming in, as long as she was swiping in?
A. Right.
Q. If she was coming in with somebody else, would you
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always swipe?
A. No.
Q. If you walk in with two or three other people,
somebody swipes, and everybody comes in; right?
A. Right.
Q. Were you aware of that fact when the door codes were
pulled?
A. Yes.
Q. How were you going to control for the possibility
that Martha might be coming in with other people?
A. I think that was a problem we found, that the door
code information wasn't all that useful, because it was only
partial information.
Q. In the next sentence in Exhibit 40, it says, "During
my second week in the office, on January 25, 2010, USA Rose
began retrieving data to determine if there was any truth to
employees' reports that Ms. Fagg was often absent from the
office." What does "often absent" mean?
A. I suppose it means more than once or twice without
permission.
Q. Well, did you write this document?
A. I did.
Q. What did "often absent" mean when you wrote it?
A. That it means more than three times a week.
Q. And it was your understanding that Ms. Rose
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believed, according to other people's information, that
Martha Fagg was often absent from the office in Sioux City?
A. Yes.
Q. And that was based solely on reports from other
people, not from any data at that time, January 25, 2010?
A. It was based on the gossip that we talked about, as
well as the statements that people gave her shortly before
she became U.S. Attorney, as well as a file that our AO had
kept, which I know you have those documents.
Q. Yes. You stated at the end of this paragraph that,
"As I stated previously, prior to receiving the memo" -- I
think that means the March 9 memo -- "I had been in kind of
contact with attorneys in the EOUSA's General Counsel's
office to seek advice about managing Ms. Fagg."
Now, my -- We've looked at a lot of documents, and
the only thing that I've seen that shows contact with EOUSA
from you before the March 9 memo is regarding an expense
reimbursement for a trip that I think occurred in -- I think
the contact was in February, late February 2010, I think.
Some time in February of 2010. I'll tell you. 2/24/2010.
Does it sound about right that you sought advice from someone
named Rosenbloom?
A. Yes.
Q. At EOUSA?
A. Yes.
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Q. Was that about Martha's trip from Sioux City to
Des Moines where she detoured to Altoona to drop off a dog
for an employee in the Northern District?
A. On February 19, yes.
Q. Is that what you contacted GC about?
A. Yes.
Q. Had there been any other contacts with the EOUSA
General Counsel regarding Martha Fagg, other than that issue,
prior to the March 9 memo?
A. I don't remember any other specific ones.
Q. Was the purpose of contacting the General Counsel's
Office about that issue to figure out how to properly
reimburse Martha Fagg?
A. Yes, we hadn't -- I hadn't, certainly, and people in
this office, the Administrative Officer and the Budget
Officer, hadn't come across such a situation, so we wanted to
make sure we were doing it correctly.
Q. Okay. So what was -- What was odd about the
situation?
A. It was odd that Martha didn't inform her supervisor
that she was combining personal travel with official travel.
That's something that if you're, you know, going to extend an
official trip by one day, you have to do documentation in
advance to show that you're going to stay an extra day, or do
personal work while you're on official travel.
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She had only informed Tim that she was going to
Des Moines for the Heemstra meeting, and so she failed to
advise her supervisors of what was actually going on. And
then she sought reimbursement for more than what she was
entitled to. So we sought the advice of General Counsel's
Office to see what she was entitled to, and what else, if
anything, we should do as far as disciplinary action.
Q. What was the discipline that was recommended by
GC?
A. GCO?
Q. GCO?
A. I don't remember.
Q. Do you recall, was there any discipline
recommended?
A. I know it eventually became part of the reprimand,
so I'm sure they recommended that some discipline be
imparted.
Q. Other than disagreeing with Martha and reimbursing
her at a lower rate in late February 2010, was any discipline
issued prior to the March 9 memo?
A. No.
Q. And did the General Counsel's Office advise you to
discipline Martha for anything prior to March 9, 2010?
A. No.
Q. Did you tell anyone at the General Counsel's Office
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A. I don't know.
Q. Had you been involved in writing the initial report
at all?
A. No.
Q. Had you any communication with Mr. Johnson or
Ms. Julian prior to the EARS team visit?
A. No.
Q. During the EARS team visit in Sioux City, were you
present for any of that?
A. No.
Q. During the EARS team visit in Cedar Rapids, were you
present for any of that?
A. Yes.
Q. Did you talk with any of the evaluators?
A. Yes.
Q. Who did you talk to?
A. I spoke mostly with Jill Julian, and there was a
woman -- another woman -- I don't remember her name -- who
came in and interviewed me too.
Q. And how long did those interviews last?
A. I don't remember. I mean, Jill was present for five
days, so she was in and out of my office a lot. But the
actual interview was maybe -- Well, I wouldn't want to guess.
I don't know.
Q. And was the EARS team in the office starting on
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Monday, March 8?
A. Yes.
Q. I'm showing you what has previously been marked as
Exhibit 4.
A. Okay.
Q. It appears to me that the memo dated, I think, March
5 from Martha to Stephanie Rose actually was sent to Ms. Rose
on March 9?
A. Yes.
Q. Tuesday, March 9?
A. Yes.
Q. Did Ms. Rose forward it to you?
A. Yes, she did.
Q. Do you know how soon after it was provided to her
that she sent it to you?
A. By the date and time stamp on the e-mails, one
minute later.
Q. Did you have any discussions with Stephanie about
it?
A. Yes.
Q. Tell me how quickly after.
A. Rich and Misti and I all met with Stephanie
immediately, probably by 1:00 p.m. that day, and we called
General Counsel's Office as a group.
Q. Rich Murphy, Stephanie Rose, who else?
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A. Misti.
Q. And you?
A. Yes.
Q. May I have Exhibit 4 back, please?
A. Yes.
Q. Thanks. Approximately what time did you talk to
General Counsel's Office?
A. Around 1:00 p.m.
Q. Do you think it was almost immediately?
A. Yes.
Q. Okay. Tell me the best that you can recall how the
call was set up with General Counsel's Office.
A. I don't understand what you mean by "set up."
Q. Well, were you all -- First, where were you
sitting?
A. We were all in Stephanie Rose's office, and she was
at her desk, and I think some of us were standing, some of us
were sitting.
Q. All right. And how do we know who to call?
A. Well, we had been in contact with General Counsel's
Office, and we called the duty line, I believe, and contacted
Tom Anderson and Michelle Tapken.
Q. Who is that, Michelle Tapken?
A. She is -- I believe her title is Deputy Assistant
General Counsel, or something like that. Jay Macklin is the
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information, but I -- I typed it myself. It's mostly my
words.
Q. Did she review it before it was sent?
A. I don't remember.
Q. On the second page of the memo, it says at the top,
first full paragraph, "As part of the employee interviews,
USA Rose was also informed by staff that AUSA Fagg was
frequently absent for unexplained reasons." Other than what
you've already told me, were there any other bases to support
that claim?
A. I don't know specifics of who told Stephanie what,
but I know that she conveyed to me, and I remember Kevin
Fletcher standing out among the group that gave her
information.
Q. And by the time that this memo is drafted, you had
-- Stephanie Rose had in late January, so for a month and a
half, approximately, had door code information?
A. We only collected it once, that I remember. It
wasn't an ongoing collection.
Q. Okay. Do you recall when it was collected for?
A. I don't.
Q. And had we anything other than Kevin Fletcher's and
whatever other people told Stephanie Rose about Martha Fagg's
unexplained frequent absences?
A. We had the file that Administrative Officer, Misti
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areas or not.
Q. All right.
A. It went from admin to civil to criminal and so
forth.
Q. Did you fail any?
A. Yes.
Q. What did you fail? Which ones did you fail on?
A. Specifically, I remember Scott McNamar, there was
one regarding him about his duties. There was one about me
not having training, that I needed to have training since I
was so new. There was one about moving Michelle Schwebach
from the civil area to the criminal area. There were more,
but I don't recall --
Q. What was --
A. -- exactly.
Q. Do you recall why that was a problem, moving
Michelle Schwebach from civil to criminal?
A. Michelle was a trained paralegal, and she was
working as a legal assistant and paralegal for Martha
exclusively, and there were no other paralegals out in Sioux
City to assist with any of the other work. And the EARS team
recommended that she be available to assist more than just
Martha.
Q. Okay. What else do you recall, if anything, of the
fails? I understand it's off the top of your head.
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Clark about this report?
A. No.
Q. What did you do, if anything, with this information
from Rich Murphy? Did you report it to the GCO?
A. I don't remember.
Q. Did you believe at the time that Martha was planning
on filing an age discrimination complaint -- March 11,
2010?
A. I -- I don't know. I mean, L.A. L.A. #1 wouldn't
necessarily know the lingo. I think I assumed that that
meant that the memo that she had sent us was her complaint.
Q. Had L.A. #1 job title or job classification changed
any time in this -- the late 2009, early 2010 time frame?
A. Yes.
Q. From what to what?
A. Paralegal to Legal Assistant. The more important
information was the grade level change significantly.
Q. Down?
A. Yes.
Q. From what to what? Do you recall?
A. 11 or 12 -- GS 11 or 12, to GS 7.
Q. Who made that decision?
A. It was made based on a performance, or a --
Performance evaluation isn't the right word. She was
assessed or audited.
#1
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Q. A desk audit?
A. Yeah.
Q. So it was based on what her level of proficiency
was?
A. Right.
MR. CARROLL: Okay. Before we take a break, another
noon break, or our first noon break, I'm going to hand you
some documents.
(Deposition Exhibit 42 was
marked for identification.)
BY MR. CARROLL:
Q. I should say, before you read this thing in detail,
I just first want to know, do you know whose writing this is?
A. Stephanie's.
Q. Okay. Did she share these notes with you when they
were made?
A. No.
Q. Okay. That's all I need on that.
(Deposition Exhibit 43 was
marked for identification.)
BY MR. CARROLL:
Q. Who is this one?
A. Whose writing?
Q. Yes.
A. My own.
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al., come to your attention?
A. I received a settlement proposal from Martha Fagg on
about March 3, 2010, and in the course of trying to figure
out what Martha was proposing, I went on to CMECF, which is
our electronic filing system, and looked at the case, and the
related cases, and I came across this order through my own
research.
Q. Okay. Now, had you ever appeared before Judge
Bennett for anything?
A. Yes.
Q. What kinds of things?
A. Criminal cases.
Q. And had you ever been a representative of a party in
a civil proceeding in front of Judge Bennett?
A. No.
Q. How many times had you appeared before Judge
Bennett?
A. I don't remember.
Q. Was it in the hundreds of times?
A. No, no. Handful.
Q. Okay. And had your dealings with him been mostly
just kind of routine, normal?
A. Yes.
Q. Did you ever try a case in front of Judge Bennett?
A. No.
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first page of Exhibit 44, you wrote to Martha Fagg citing
USAM 1-4.100 that "Department employees shall report any
evidence or non-frivolous allegation of misconduct that may
be in violation of any law, rule, regulation, order, or
applicable professional standard."
So my question is, did you believe that anything in
the order from Judge Bennett of November 10, 2009, suggested
misconduct?
A. It was, in my opinion, evidence of misconduct in
that she was not following the local rules.
Q. Well, what -- Let's start with what is misconduct as
opposed to just, say, ordinary negligence, as an example.
What is misconduct as you understood it?
A. I consulted the General Counsel's Office to
determine whether this is something that Martha should report
to OPR, and they advised me about whether it was or was
not.
Q. What did they advise you?
A. That she should report it to OPR.
Q. Do you understand why?
A. Because it's findings by a judge that she failed to
follow several rules of the Court, and that's for OPR to
determine whether that's misconduct or not.
Q. Who did you talk to at -- Is it OGC?
A. GCO.
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Q. Could have been after?
A. Yes.
Q. After the announcement of the management directed
reassignment -- that is, sending Martha to permanently
transfer from Sioux City to Cedar Rapids -- Did you expect
any specific response from Martha on that?
A. No.
Q. That is to say, yes or no?
A. The document that Stephanie gave her required her
response.
Q. What did you understand her response to be?
A. She accepted under duress, or something to that
effect.
Q. Were you surprised that she accepted?
A. No.
Q. Well, was it not appropriate for Martha to express
her misgivings about the directed reassignment or no? To say
it was under duress?
A. I just remember she added some language. I mean,
the forms had boxes to check "yes" or "no," and she added
some commentary in her answer.
Q. Did anyone -- Did you consult anyone at EOUSA about
the directed reassignment?
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A. Yes.
Q. And you talked to Stephanie about -- Ultimately, it
was Stephanie's call, wasn't it?
A. Yes. She had propose it to OARM.
Q. And you were working with her on that?
A. I didn't have much to do with it after I proposed
it.
Q. And Stephanie apparently -- Ms. Rose -- agreed that
it was the right thing to do?
A. Right.
Q. So she took it to EOUSA?
A. Well, and several other entities. I mean, OARM, I
believe, is the entity that had to approve it, Office of
Attorney Recruitment and Management. But the personnel
office was involved. General Counsel's Office was involved.
RMP was involved. It was a big deal.
Q. Was -- In any of your discussions, or discussions in
which you were involved -- whether it involved Stephanie Rose
or Stephanie, and -- Stephanie Rose and people at EOUSA,
Kimya Jones, for example, and Jay Macklin -- Did anyone at
EOUSA ever ask, or did you ever ask EOUSA, what would be kind
of the appropriate HR response on some of these things that
we're talking about? How to handle Martha?
A. Absolutely. I mean, it was constant, "What should I
do with this e-mail?" "What should I do?" "She called me
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Julian -- just in general, communicate with her -- either via
e-mail or voice or in person between May 2010 time frame and
when Martha was ultimately removed?
A. Not very often. Maybe once every couple of
months.
Q. And any of those times that you talked with her, did
you ever talk with her about Martha, even if you didn't
mention Martha by name?
A. The -- Yes. I mean, before Jill became my official
mentor, my first meeting with her, I think, I had that Kluver
settlement proposal, and she helped me with it, insofar as
anybody could help me with it, in that she didn't know what
Martha was requesting either. So from -- I guess that would
have been March 8 on -- We had discussions about how to deal
with various substantive issues.
Q. From March 8 on, or May?
A. Well, March. I mean, Jill wasn't deemed my official
mentor until May, I don't believe, but I talked to her before
that.
Q. Did you ever talk with her about your just
personality conflicts, and conflicts in general, between you
and Martha?
A. No.
Q. So when you would talk with her, for example, about
the Kluver settlement documents or the documents that Martha
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Q. Whose is it?
A. Mine.
Q. Do you know what this memorializes?
A. It's like a conversation that I had with Jay
Macklin, Tom Anderson, and Kimya Jones, or perhaps I had -- I
guess I don't know. It looks like Jay, Tom, and Kimya met,
and someone was conveying the information from their meeting
to me. I don't know if it would have been Stephanie or
Kimya.
Q. Are Jay, Tom, and Kimya management's lawyers?
A. Yes.
Q. Who sent several letters? Do you know? I'm at the
top here (indicating)?
A. I don't know.
Q. Who made the FOIA request?
A. I don't know.
Q. The "Suggestion/Direction" says, "Make sure we look
very reasonable, issue 14-day suspension now." Do you know
what that was about?
A. Well, something regarding the 14-day suspension, but
I don't know.
Q. Whose idea was it to "make sure that we" -- is that
management -- "look very reasonable"?
A. The "we" would be management, yes.
Q. And so I'm clear, do you recall having a discussion
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with Jay Macklin and Tom Anderson and Kimya Jones on November
2, 2010?
A. No.
Q. Do you know what the note means that says "She's
made it very plain that she needs it"?
A. No.
Q. How about "ALJ/EEO/MSPB"?
A. I don't know what those notes would mean.
Q. The next page says "PIP due by end of year or early
January." Is that your note?
A. Yes.
Q. The next note says, "Don't need to rate her
unsuccessful, but put her on PIP." Do you know what that
means?
A. That would have been advice that we don't need to
rate her unsuccessful before we put her on a PIP.
Q. Okay. The next note says "We don't want it to look
like we're picking on her. Looks like management action
after management action." Do you know whose statement that
was?
A. I believe this is all Kimya's advice.
Q. Okay. The next page says "Typically take three
steps before removal. Need to be consistent with GCO policy
and practice. Can't turn current proposed suspension into
removal." Was there talk about going from a proposed
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suspension into a removal?
A. I don't recall that, but it looks like there was.
Q. The last page says "Successful/rating PWP." What
does that mean?
A. I don't know.
(Deposition Exhibit 68 was
marked for identification.)
BY MR. CARROLL:
Q. I think earlier you told me that you had considered
-- You would then be considering the directed reassignment in
July of 2010. If I'm incorrect, the record will say what it
says. Although, perhaps that is when you started considering
it. This doesn't say anything about a directed reassignment,
your e-mail to Ms. Jones dated July 27, 2010. Although, is
that what you were kind of thinking about at the time?
A. Well, I proposed the reassignment on that same date,
July 27, and when she's talking about OARM, that is -- That's
what that means.
Q. So that would have been some memorialization of a
conversation in which you were discussing with Ms. Jones a
management directed reassignment?
A. Right.
(Deposition Exhibit 69 was
marked for identification.)
BY MR. CARROLL:
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Q. And then who said, "It's Roger. He thinks
everything is wrong. Bennett signs stuff he doesn't even
know what he's" -- whatever that says?
A. Martha would have said that.
Q. Okay. I mean, it doesn't sound like it got too
heated that part of the discussion, at least your notes don't
suggest that. Was it a mostly professional discussion?
A. Yes. I mean, Martha didn't yell like she did later
on.
Q. Later on in the same meeting?
A. No. Later on in April 19, I'm recalling
distinctly.
Q. Well, in fairness, on March 15, you didn't say
anything to her about moving her to Cedar Rapids; right?
A. No.
Q. That's correct, you did not?
A. I did not.
(Deposition Exhibit 71 was
marked for identification.)
BY MR. CARROLL:
Q. This is 71. This is an e-mail dated May 28, 2010,
from you to Ms. Fagg, subject, "Leave status." My question
is, do you recall who informed you that she was not in the
office at 4:34?
A. That -- I believe that time is not correct. Our
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e-mail has a problem that it's an hour off when you reply to
it. So I think that it -- It's reflecting a time of 3:34. I
know that Misti was trying to get ahold of her, and somebody
else was trying to get ahold of her, but I can't remember now
who it was. I learned from two independent people that she
wasn't in the office.
Q. What was the policy at the time -- the office policy
in May of 2010 about attorneys -- line attorneys and where
they were supposed to be and when?
A. Well, the policy is lengthy, and it incorporates
several of Department of Justice policies. But the base of
it is we need to know where you are, and if you're not in the
office, you need to be approved to be out of the office with
a leave slip or note to your supervisor. You need to apprise
your staff who you work with where you are.
Q. What was the expectation for the attorneys at that
time about what hours they were supposed to be keeping?
A. Everyone had been informed by Stephanie Rose as of
February 3 that she expected everybody to hold court hours
between 8:00 a.m. and 5:00 p.m., with an hour lunch break, or
8:30 to 5:00, with a half-hour break.
Q. Did the office have a flex time policy for, say,
parents, or parents with sick children, as an example?
A. Yes. Stephanie sent an e-mail out. We have a thing
called AWS for non-attorney staff that is a district by
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