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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-23-2012 4:10 pm
Case Number: CGC-10-504804
Filing Date: Aug-23-2012 4:10
Filed by: MICHAEL RAYRAY
Juke Box: 001 Image: 03737171
GENERIC CIVIL FILING (NO FEE)
SALVATORE MINEO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY
SIGHTSEEING CORPORATION, A DELAWARE et al
001003737171
Instructions:
Please place this sheet on top of the document to be scanned.
ahJONES BOTHWELL DION & THOMPSON LLP
ELIZABETH THOMPSON (S.B. #112888)
PAUL J. DION (S.B. #088231)
44 Montgomery Street, Suite 610
San Francisco, CA 94104-4608
Telephone: (415) 951-8900
Facsimile: (415) 951-8901
Attorneys for Defendant
CitySightseeing Corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
SALVATORE MINEO, GINA SCHEMBARI, No. CGC-10-504804
PHILLIP THOMAS NAILS, BENJAMIN DUAX
and DAVID HAYWARD, individually and on Action Filed: October 22, 2010
behalf of all others similarly situated,
. SECOND SUPPLEMENTAL
Plaintiffs, DECLARATION OF ELIZABETH
THOMPSON IN OPPOSITION TO
v PLAINTIFFS’ MOTION FOR CLASS
CITY SIGHTSEEING CORPORATION, a CERTIFICATION
Delaware corporation, CITY SIGHTSEEING
WORLDWIDE and DOES 1 through 500, Date: August 30, 2012
inclusive, Time: 9:30 a.m.
Defendants. Department: 302
Trial Date: November 13, 2012
AND RELATED CROSS-COMPLAINT.
I, Elizabeth Thompson, declare as follows:
I. Tama partner in the law firm of Jones Bothwell Dion & Thompson LLP, counsel for
defendant CitySightseeing Corporation (“Defendant” or “CitySightseeing”) herein. The following
facts are personally known to me unless stated otherwise, and if called as a witness, I would and
could competently testify thereto under oath.
2. The deposition of CitySightseeing’s former General Manager, Andrew Smith, was
taken by Ashwin Ladva, Plaintiffs’ counsel herein, on January 28, 2012. As shown by the
deposition excerpts attached hereto as Exhibit M, Mr. Smith was questioned at length about
SECOND SUPPLEMENTAL DECLARATION OF ELIZABETH THOMPSON Case No. CGC-10-504804
IN OPPOSITION TO MOTION FOR CLASS CERTIFICATION27
28
eo @
written, signed statements of current and former CitySightseeing employees collected by Jacqui
Tully, an investigator working with defense counsel in this case. During the deposition, Mr. Smith
testified that such statements had been received from a large number of current and former
CitySightseeing employees in connection with this lawsuit. Copies of the statements, which were
formulated as declarations and are referred to in this motion as “the 2011 Declarations,” had not
been produced to Plaintiffs as of the date of Mr. Smith’s deposition. Plaintiffs have not sought
production of the 2011 Declarations at any time since Mr. Smith’s deposition.
3. The 2011 Declarations were not intended to constitute waivers under Labor Code
section 206.5, and they are not presented by Defendant in opposition to the motion for class
certification for that reason.
4. Attached hereto as exhibits are true and correct copies the following:
Exhibit M: Excerpts from the Deposition of Andrew Smith, taken January 28, 2012
Exhibit N: Excerpts from the Deposition of Salvatore Mineo, taken May 31, 2011
Exhibit O: Excerpts from the Deposition of Gina Schembari, taken June 7, 2011
Exhibit P: Excerpts from the Deposition of David Hayward, taken June 14, 2011
Exhibit Q: Excerpts from the Deposition of Benjamin Duax, taken June 17, 2011
Exhibit R: Excerpts from the Deposition of Phillip Thomas Nails, taken May 27, 2011
I declare under penalty of perjury that the foregoing is true and correct. Executed this 23rd
date of August 2012 at San Francisco, California.
Elizabeth
SECOND SUPPLEMENTAL DECLARATION OF ELIZABETH THOMPSON Case No. CGC-10-504804
IN OPPOSITION TO MOTION FOR CLASS CERTIFICATIONIN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
SAN FRANCISCO COUNTY - UNLIMITED JURISDICTION
Salvatore Mineo, Gina Schembari,
Phillip Thomas Nails, Benjamin Duax,
and David Hayward individually, and
on behalf of all others similarly
situated,
Plaintiffs,
vs. No. CGC-10-504804
CITY SIGHTSEEING CORPORATION, A
DELAWARE CORPORATION, CITY
SIGHTSEEING WORLDWIDE and
DOES 1-500, inclusive,
Defendants.
DEPOSITION OF CITY SIGHTSEEING CORPORATION
by and through
ANDREW A. SMITH
Person Most Knowledgeable
SAN FRANCISCO, CALIFORNIA
JANUARY 24, 2012
ATKINSON-BAKER, INC.
COURT REPORTERS
(800) 288-3376
www.depo.com
REPORTED BY: MELLONY L. KNIGHT, CSR NO. 8448
FILE NO.: A60088EPage 122 Page 124
1 ‘A. I don't recall ever seeing it, no. [2 approach her.
2 Q. Having seen this, does this refresh your 2 MS. THOMPSON: For clarification, Ms. Tully was
3 recollection as to whether or not Mr. Oshins showed you | 3 _ hired by my law firm not directly by City Sightseeing.
4 this time sheet and explained to you why he felt he was 4 MR. LADVA: Q. And did Ms. Tully have a waiver
5 entitled to overtime pay? 5 that she had with her that the employees were asked to
6 A. No. 6 sign?
7 Q. Have any of the employees at City Sightseeing 7 A. Idon't~
8 informed you that they had contact from your attorney's | 8 MS. THOMPSON: I object to the term "waiver" on
9 office regarding the class action lawsuit? 9 the same basis as before.
10 MS. THOMPSON: Counsel, would you state which | 10 MR. LADVA: Q. Did Ms. Tully have any
11 employees you're talking about. Mr. Watts, for instance, 11 documents that she presented the employees with and asked
12 is technically an employee of the company. 12 for them to sign?
13 MR. LADVA: Nonmanagerial employees. 13 ‘A. Not when she met with them, no.
14 MS. THOMPSON: Could you read the question back | 14 Q. Did she at any point send them documents asking
15 with that, 15 them to- asking the employees to sign documents?
16 (Pending question read.) 16 MS. THOMPSON: You can answer.
17 THE WITNESS: No, none of my present or past 17 THE WITNESS: So Ms. Tully presented the case,
18 — employees, as far as my knowledge, have been contacted by | 18 from my understanding, from a very ambiguous point of
19 — ourattomney. 19 view presenting the facts and what the people's positions
20 MR. LADVA: Q. Have you discussed the lawsuit 20 were and asked them what their point of views were and
21 with any of the nonmanagerial employees at City 21 what negative thoughts they had in retrospect of the
22 — Sightseeing? 22 company and so forth. And if said employees decided they
23 A. If they've approached me, yes. 23 wished to support in some form to support the company, I
24 Q. What have you told them about the lawsuit? 24 believe at a later date she sent them a form of some sort
25 A. I've told them they should read the literature 25 retracting their position from a class suit.
Page 123 Page 125
1 that's been presented by yourselves and make their own 1 MR. LADVA: Q. And when was this form sent to
2 judgment call. 2 the employees asking them to retract their position from
3 Q. You never told them to sign a waiver? 3 the class action suit?
4 MS. THOMPSON: Objection: Vague, calls for a 4 A. I wouldn't know.
5 legal conclusion as to the meaning of the term "waiver." 5 Q. When was it that Ms. Tully was at City
6 MR. LADVA: Q. Have you ever had them signor| 6 — Sightseeing meeting with your employees?
7 told them they should sign a waiver? 7 A. I would say April of last year.
8 (Discussion between Ms. Thompson and witness.) | 8 Q. And how long was she present at City
9 MR. LADVA: Excuse me. Counseling during 9 Sightseeing?
10 — questions, I've let it go on long enough. 10 A. She actually didn't meet at City Sightseeing.
11 MS. THOMPSON: I object, Counsel. I've not 11. She met in a nondescript office within the same office
12 been counseling him during questions. 12 complex as ourselves and she came several times and sat
13 MR. LADVA: You guys have been meeting and | 13 and then everybody chose to go up and talk to her; they
14 conferring and answering questions. There's a question |14 chose. There was no set schedule. It was sort of a
15 pending. 15 free-will engagement.
16 MS. THOMPSON: That's a hundred percent false. | 16 Q. When you say she came several times, how many|
17 MR. LADVA: It's a hundred percent a lie then. 17 times does several mean?
18 I'd appreciate it if you answer the question. 18 A. Probably I believe two.
19 Would you read the question back. 19 Q. And how many hours —
20 (Pending question read.) 20 A. No. Actually, I believe it's more like four.
21 MS. THOMPSON: "Waiver" is ambiguous and 21 Q. And how many hours did she spend in this
22 ~ possibly calls for a legal conclusion. 22 nondescript office waiting for employees to come speak
23 THE WITNESS: City Sightseeing hired a lady by | 23 with her?
24 the name of Jackie Tully, T-u-I-I-y, to sit down with any | 24 A. Probably arrive early moming 9:00-ish. I
25 _ members of staff that wished on their own free will to 25 can't be specific on 9:00 o'clock. Probably left at 4:00
32 (Pages 122 to 125)Page 126 Page 128
1 or 5:00 o'clock. 1 signed it?
2 Q. And how were the employees made aware of 2 A. Ms. Tully has informed myself.
3 Ms. Tully's presence at City Sightseeing in this 3 Q. And how many people have signed it?
4 — nondescript office? 4 A. I believe 90. That's an approximate number.
5 ‘A. The management team let me know that there was 5 | think it's also worth noting that Ms. Tully
6 an independent investigator coming and if anyone wished 6 was also given the same list as yourself in terms of --
7 to communicate with her about any issue regarding the 7 MS. THOMPSON: Don't voluntecr any more
8 lawsuit, similar in communication to E-mails and so 8 — information. Let him ask questions.
9 forth, then they were more than welcome to go upstairs 9 Let's take a short break.
10 and talk to them. 10 (Recess from 3:39 to 3:49 p.m.)
qt Q. Did you also tell the employees that Ms. Tully lu ‘THE WITNESS: I'd like to say I used the word
12 was available for them to speak with and that she wasan | 12 “ambiguous” before in retrospect to Ms. Tully sitting
13 independent investigator? 13 down with the staff. I want to say "neutral" as in it
14 MS. THOMPSON: I'll object to the extent you're 14 wasn't one side or anything like that. Neutral,
15 asking for a verbatim response. 15 MR. LADVA: Q. How do you know it was neutral?
16 You can testify as to what you recall. 16 ‘A. Because we asked --
17 THE WITNESS: I don't specifically recall any 17 MS. THOMPSON: Please don't reveal
18 in depth detail because it was tried to be conducted in a 18 — communications between you and Ms. Tully or you and me.
19 very non -- how should I put this? It was presented to 19 MR. LADVA: Q. Well, how do you know it was
20 the staff in a way it was their choice if they wished to 20 neutral?
21 go, if they didn't they didn't need to; it didn't make 21 A. [can't comment.
22 — any difference. There are, to my knowledge, people who | 22 Q. Why is that?
23 haven't been to talk to her who still work for the 23 A. Because it's client-privileged communication.
24 company. 24 Q. And you also said at one point a document was
25 MR. LADVA: Q. Okay. Let's go back to what 25 sent to employees from Ms. Tully retracting their support
Page 127 Page 129
1 you actually said to the employees. 1 for the class action; is that fair?
2 A. Ican't specifically recall. 2 A. No.
3 Q. Let's talk about generally. 3 Q. What did you say?
4 What did you generally say to the employees? 4 A. Ms. Tully if asked by the employees she met
5 A. “Ms. Tully's here. She's an independent 5 with, if they asked -- I'll rephrase.
6 — investigator. If anyone wants to talk about the lawsuit 6 If the employees that met Ms. Tully decided
7 she's in Suite 23 or 43" or whatever it is “upstairs.” 7 they wished to support the company in some form,
8 And that was basically it. 8 Ms. Tully would send them a document of some sort that
9 Q. And when did you first learn of Ms. Tully's 9° would identify that that said person wished not to be
10 involvement in this lawsuit? 10 part of the class action. I have been given those
1 MS. THOMPSON: He's asking for a time. 11 documents, but I haven't actually read them out of
12 THE WITNESS: Specifically I can't tell you 12 respect for the employees and so forth.
13 without looking at the calendar. From approximately 13 Q. So you've been provided a copy of the documents
14 several weeks prior to her coming to Leavenworth. 14 that have been signed by employees saying that they do
15 MR. LADVA: Q. And when she came to 15 not want to be part of the class action lawsuit?
16 — Leavenworth, was it your understanding she had been hired | 16 A. Correct.
17 _ by your counsel to speak with employees at City 17 Q. Were the persons or the employees that have
18 — Sightseeing? 18 signed this document indicating that they do not wish to
19 A. Correct. 19 bea part of the class action lawsuit provided with any
20 Q. And have you seen this form that she sent to 20 incentives to sign that document?
21 the employees asking them to retract the support for the | 21 A. No.
22 class action suit? 22 Q. So they weren't provided with, for example,
23 A. Thaven't actually seen the specific form. I 23 better schedules?
24 — am aware of how many people have signed it. 24 A. No.
25 Q._ And how are you aware of how many people have | 25 Q. With more overtime?
33 (Pages 126 to 129)Page 130 Page 132
1 A. They were not given any extra hours, no. 1 Q. And the employees that signed this form, are
2 Q. Were they provided any money? 2 they bus drivers?
3 A. No. 3 A. My understanding it's anybody who's worked for
4 Q. Did you in any way, shape or form threaten the 4 the company.
5 employees that they would have to meet with Ms. Tully -] 5 Q. But do you know what type of employees have
6 A. No. 6 signed this document? Are they bus drivers?
7 Q. —And if they had not, there would be 7 A. They're employees. I would say everybody's
8 repercussions? 8 possibly signed it. There's no specific number of
9 A. Notatall. 9 precisely who.
10 And as stated earlier, there are present 10 Q. Do you know the names of the employees who have
11 employees that haven't met with Ms. Tully. 11 signed the document?
12 Q. Well, how do you know the employees that are | 12 A. No.
13 presently working there have not met with Ms. Tully? | 13 To clarify the point earlier. We have an
14 ‘A. Because -- actually, client-privilege 14 employee quantity of people. And Ms. Tully presented me
15 information, yeah. Client-privilege communication. 15 with X amount of documents that didn't match the same
16 Q. How is that client-privilege communication? 16 quantity of employees, Hence to say, why at the time |
7 MS. THOMPSON: He leamed it through the course | 17 — was aware that some people hadn't signed anything.
18 — ofaprivileged communication. 18 ‘And since that date I've been approached by two
19 MR. LADVA: Q. Earlier you said you didn't 19 — employees telling me they didn't want to sign it,
20 know which employees met with her or out of privacy for || 20 explaining.
21 your employees you weren't going to read their statements | | 21 Q. Did they tell you why they did not want to sign
22 showing they support the company. Now you're kindof || 22 it?
23 saying, I know who has not met with Ms, Tully. So which | | 23 A. No.
24 — one is it, Mr. Smith? 24 Q. Did you ask them why they did not want to sign
25 MS. THOMPSON: Objection: Argumentative and 25 it?
Page 131 Page 133
1 misstates his testimony. 1 A. No.
2 MR. LADVA: Q. Do you want to say you support |} 2 Q. What are the names of these employees that told
3 your employees or -- you can't have it both ways. 3 you they did not want to sign the form?
4 MS. THOMPSON: That's not a question. 4 A. Keith Oshins and Ulrick Link, L-i-n-k. Sorry.
5 MR. LADVA: It's not. 5 Ulrick Link.
6 Q. So, Mr. Smith, how did you learn of which 6 Q. When did they tell you they did not want to
7 employees have not met with Ms. Tully? 7 sign this form?
8 MS. THOMPSON: | object to the extent it calls 8 A. Sometime in the summer.
9 for attorney-client communication or communication with 9 I was also made aware of a third person, which
10 Ms. Tully. 10 — was Walter Ceron, C-e-r-o-n, in a recent EDD hearing.
ql MR. LADVA: Is Ms. Tully an attorney? ql Q. And how were you made aware that he did not
12 MS. THOMPSON: No. Ms. Tully has work product} 12 want to sign the form in the recent EDD hearing?
13 _ privilege with me. 13 A. He came with a letter from your office that he
14 THE WITNESS: Can we take two minutes break? | 14 — was wrongfully dismissed for not signing the form. But
1s MS. THOMPSON: I think we should so we can 15 the admission judge --
16 clarify conditions relating to the privilege and the 16 MS. THOMPSON: That's fine.
17 extent of it. 7 MR. LADVA: Q. What did the administrative
18 (Recess from 3:50 to 4:00 p.m.) 18 judge say?
19 MR. LADVA: Q. What's your understanding as to | 19 A. She found that his claim was false.
20 what the document signed by the employees that Ms. Tully | 20 Q. Did she explain why she found his claims to be
21 sent to them means? 21 false?
22 A. Thaven't actually read the document, so. 22 A. Because he was found stealing on multiple
23 But my understanding is that the employees have 23 occurrences.
24 signed a form saying that they don't wish to be partofa | 24 Q. How long did the employees meet with Ms, Tully?
25 class action. 25 A. [have no idea.
34 (Pages 130 to 133)Salvatore Mineo May 31, 2011
1
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
SALVATORE MINEO, GINA SCHEMBARI, PHILLIP THOMAS NAILS,
BENJAMIN DUAX and DAVID HAYWARD, individually and on
behalf of all others similarly situated,
Plaintiffs,
vs. No. CGC-10-504804
CITY SIGHTSEEING CORPORATION, a Delaware corporation,
CITY SIGHTSEEING WORLDWIDE and DOES 1 through 500,
Defendants.
DEPOSITION OF
SALVATORE MINEO
(Pages 1 through 219)
May 31, 2011
9:52 a.m.
44 Montgomery Street, 11th Floor
San Francisco, California
REPORTED BY: JOHNNA PIPER, CSR 11268 |
Toll Free: 800.770.3363
Facsimile: 415.591.3335
Suite 1100
I ‘ [ IR I ‘ 44 Montgomery Street
San Francisco, CA 94104
an ewandes Gallo Company www.esquiresolutions.comSalvatore Mineo
May 31, 2011
7 79
1 Q. And then you would produce a receipt showing 1. reservation into the City Sightseeing system.
2 how much money the driver or guide had taken in? 2 ‘And then after | do that, | would call the bus
3 A Yes. Or sometimes the driver would do it 3. drivers, make sure that they're on time, their pickups,
4 himself, and he would hand over the receipt and then the 4 the lists are all ready, and -- so I don't know.
5 credit card machine. 5 Q. Sothese 40 to 50 e-mails, were those from
6 — Q. How long did that take? 6 customers placing orders?
7 A. Not very long, four minutes -- three minutes, 7 A. Yeah, through Expedia or different reservation
8 four minutes. 8 companies that we would work through -- Expedia,
9 Q. Sof someone had to cash out during the day 9 Travelocity, or — you know.
10 because of a credit card problem, they would be given a 10 Q. Soona day when you were able to take a rest
11 new machine, right? 11 break, how soon would that be? You would come in at 7;
12 A. Yes. If-- I'm sorry. 12. the next person would come in at 7:30. Assuming that
13 Q. Goahead. 13 you could take a break, when did you take it?
14 A, Ifthere was a credit card machine to give to 14 A. Itvaried throughout the day, but | don't
15 them, a lot of times there wasn't. 15 really remember actually what time. It was in the
16 Q. You also said you had to do something with an 16 —moming time if we could, so | would probably say around
17 envelope and drop it? 17 9:30, 10:00.
18 A. No. That was if it was the end of the shift. 18 Q. Wasit up to you to decide when to take a
19 You asked me if -- what the difference was between the 19 break?
20 morning shift and the end of the day shift? 20 A. Itwas up to the office staff.
21 Q. Right. 22 | forgot to mention also my duties — you asked
22 A. The person at night who counts all the cash 22 me about duties. | don't know if you want to go back to
23 drawer picks up the money, and then drops it in the ~ 23. that or you want me to wait.
24 the safe. 24 Q. Ifyou have additional duties, please tell me
25 Q. And that's on the premises there? 25 what they are.
78 80
1A Yes. 1 A. During my -- during the end of my shift, |
2 Q. Sohow long would you say the duties that 2 would have to call and confirm ail the drivers the day
3. are ~- the end of the day closing duties, how long would 3. before for the next day to make sure that they knew what
4 you say those took? 4 buses to take and different -- you know ~ and replace
5 A. Ican't~I really can't specify. | only did 5 the drivers, call other drivers to see if they could
6 that once, to be honest with you. I don't know. | mean 6 come in to work to replace them, and things like that.
7 to count the drawer and to balance everything out, | 7 Q. Sodid anybody else do that, or was that just
8 would say 20 minutes — you know, 20, 30, maybe 8 you?
9 20 minutes. 1 don't know. | just don't know. 9A. During ~ it was my duty. | was told by Jamie
10 —_Q. So going back to the duties that you performed 20 that it was my duty.
11 from 7 on that were specific to opening the business -- 11 Q. Sowere you the only one that did it?
12, A Yes. 12 A. No, | was not. Other people would do it. We
13 Q. ~ how long did -- did that series of events 13 would help each other out.
14 generally take you? 14 Q. Soyou said the time of breaks was up to the
1s A. It varied with every day depending on the 15 office staff. Tell me what that means.
16 schedule, if the drivers came on time, if they needed to 16 A. Wewere never given a certain time from the
17 change buses. A lot of times they didn’t know where the 17 person to - sometimes we weren't given times —
18 buses were located, which yard -- at that time there was 18 sometimes Chris Lovatt weuld come into the office, and
19 multiple yards. It all varied with every day, so when | 19 he would say, "Okay, Sal, go ahead and go take a
20 usually would walk in to the office, ! would do all the 20 couple -- go take a breather,” you know. So! would do
21 things, turn on the lights and put the signs out, and 21 that, but other times when they weren't around, like say
22. then | would come to the desk, and | would write out the 22 they had meetings or they had to -- Chris had to go in
23 e-mails, And there'd be -—- you know, especially in the 23 there, then we would talk about each other and we would
24 summertime, there'd be 40, 50 e-mails, you know, and 24 say, "Do you want to go take your 15? Go take your 15.
25 you'd have to, you know, copy, paste, or write the 25 Goto the bathroom, go” -- whatever, so...
ESQUIRE
sander Gullo Company
Toll Free: 800.770.3363
Facsimile: 415.591.3335
Suite 1100
44 Montgomery Street
San Francisco, CA 94104
www.esquiresolutions.comSalvatore Mineo
May 31, 2011
ESQUIRE
sander Gullo Company
317 119
1 Q. Soif we look at your time sheets, we can't 1A. Thatis my writing.
2 really tell from them whether or not you took a lunch. 2 Q. And does that refer to, 10/31 and 11/2 - or
3 Is that what you are saying? 3 11/1? Excuse me.
4 A. Yes, from looking at them, yes. What I'm 4 A. No. | believe - | don't remember exactly what
5 saying is that that's just -- that's not my writing 5 that meant or what that represented, but from what | —
6 there. 6 if! think back, is this -- is this my first time sheet
7 Q. lunderstand that. 7 here?
8 MR. MARTINEZ DE LA VEGA: That's fine. Just 8 Q. Yes, itis.
9 listen to her question. 9A, Very first one? Okay. There was a couple of
10 THE WITNESS: | am. I'm trying to. 10 training days that they did not put on my schedule, and
ul MR. MARTINEZ DE LA VEGA: Okay. You're doing 11 | put that as a note that | was not paid for those
12 fine. Don't worry about it. 12 dates. | believe it was a day that -- | don’t know --
13 THE WITNESS: No, I'm just asking -- | have 13 that | was riding buses -- | don't remember exactly what
14 questions too. 14 that was.
15 BY MS. THOMPSON: 15 Q. Sowould it have been correct that your first
16 Q. Sowhen you prepared these time sheets, was it 16 two days would have been training?
17 your intent to be accurate? 17. Yes.
18 A. Yes. 18 Q. And do you know whether you were ever paid for
19 Q. And you understood that City Sightseeing was 19 those first two days?
20 relying on your entries in order to calculate your 20 A. These days that are on here?
21 compensation? 21 Q. Yes, on Exhibit 9, the first page.
22 A. Yes, 22 A. | don't have the check stubs in front of me,
23 MR. MARTINEZ DE LA VEGA: Objection. 23. but--Idon'tknow. | don't remember.
24 Argumentative. 24 — Q. Look at the second page of Exhibit 9.
25 BY MS. THOMPSON: 25 A. Okay.
118 120
1 Q. Were you ever intentionally inaccurate on any 1 Q. And this appears to be your time sheet covering
2 of them? 2 the period November 2nd through November 15, 2009. Do
3 A. No, ma'am. 3 you agree with that?
4 Q. Solooking at the first page of Exhibit 9, can a A Yes,
5 you tell me if all the writing on that page is yours? SQ. Andis any of the writing on this document not
6 A, The first page here? 6 yours?
7 Q. Yes. 7 A. No. I believe that itis -- I believe that
8 A. No, not all of itis mine. 8 it's all mine on here.
9 Q. So which writing is not yours? 9 Q. So where it says “one half" for lunch each day,
10 A, Where it says "30 minutes,” "30 minutes.” 10 that indicates that you actually took a half-hour lunch?
11 Q. So this -- these would have been the first two a A. The only thing that I'm -- it's weird for me is
12 days you started work? 12 just that | don't write that small at all, and these are
13. A. Okay. 13 very tiny little one two, one two, one twos, so | don't
24 Q. Do you recall taking lunch breaks on those 14 knowif wrote those but...
1s days? 15 Q. Okay. So at the bottom, there's a column of
16 A. | do, Because it was my first day, they told 16 figures. It says "82 hours, 16 last pay period,” and
17 me go take lunch, yes. 17 then in a box "108" and next to that "hours." Do you
18 Q. And the second day as well? 18 see that?
19 A. Yes. 19 A. Yes.
20. Q. And then it says at the top "10/19 through 20 — Q. Solooking at where it says "16 last pay
21 11/1." Do you see that? 21 period," does that refresh your recollection about
22 A. Yes. 22 whether you were paid for the first two days of work?
23 Q. And it says, "Last two days not pai 23 A. "16 last pay period,” so does that mean that's
24 A. Yes. 24 for the 31st and the 1st? Or -- I'm sorry. | don't
25 Q. Is that your writing? 25 remember what this all means. It was a long time ago.
300.770.3363
15,591.3335
Suite 1100
44 Montgomery Street
San Francisco, CA 94104
www.esquiresolutions.comSalvatore Mineo May 31, 2011
37 39
1 that. Okay. That was the first time that that 1 employee; different situations like that. | believe |
2 happened. 2 discussed it. If | don't remember any, then ~ you
3 ‘The second time that happened again, | went to 3. know. Itwas very uncomfortable. | can just say that,
4 goto Andrew, and | sat down with Andrew outside in the 4 avvery uncomfortable situation.
5 front, and | said to Andrew, "Andrew, I'm fed up with SQ. Are you talking about the entire course of your
6 this place. My checks are bouncing.” | said, "My 6 employment at City Sightseeing, or your discussions with
7 checks are not coming on time. We're not getting paid 7 Andrew?
8 overtime," | said to him, which was a fact everybody in 2 A. Notthe entire - I'm talking about the entire
9 the front desk knows that. | said, “And now I'm having 9 _ situation at City Sightseeing, but during the beginning,
10 issues with this guy Todd at the front desk.” 10 it wasn't that bad. | believe it because it was during
ui He said to me, "Sal, you're like a gir 11 the wintertime that | got hired. We weren't getting as
12 You're gay, very similar,” he said to me, "so when you 12 much business, and | don't ~ don't know. It's
13 put yourself in a situation with another gay guy,” he 13 difficult to say.
14 said to me, "you're like two women, and you argue. You 14 My other complaint ~I'm sorry.
15. overthink it,” he said to me. 18 Q. Did you have another complaint that you brought
16 That upset me too much, and | said Andrew, 16 to someone's attention?
17 "Keep my sexuality out of it," | said to him at that 17 A. Well, the other complaints were about the:
18 point. Shortly after that | left. 18 breaks that we were getting at work. That was very
19 Todd actually left before me so... 19 uncomfortable to me. There would be times when | would
20 Q. What wast that Todd was doing or saying that 20 be inthe office with just me and Maria and ~- or me and
21 made you uncomfortable? 21 Jake, me and whoever would be — or for lunch break.
22 A. He came into the office. He came in working 22 And we wouldn't be able to leave to go get lunch because
23 for - he used to work for a different company at the 23 the other person couldn't stay at the office one person
24 wharf, Bay Cruise -- | believe it was Bay Cruise. And 24 atatime. So I'd have to wait a while in order for me
25 he would just come in, and he felt - | felt as though | 25 togo. Sometimes we didn't even go to take lunches
38 40
1 _ he ~ like | would use the credit card machine, and he 1 because that just would be that sometimes the people
2 would come in and bump me out of the credit card machine 2 would come in and bring food in the office, you know.
3. to.use it, and things like that that | asked him not to 3 Another situation — I can go on. Would you
4 do. And one day he accidentally bumped my head, and | 4 like me to go on?
5 just told -- | went upstairs and | told them, you know, 5 Q. No. Let me ~ let me ask you questions now.
6 it's not okay, and he yelled at me in front of all the 6 A. Okay.
7 guests that were downstairs. We had a full office, and 7 Q, Onhow many occasions would you say that you
8 he yelled at me, and he turned It into a show, and | 8 were not able to have a work-free lunch, when you
8 felt uncomfortable. And that’s when I went to go 9 weren't doing any work?
10 discuss it with them, 10 A. Howmany occasions that I didn't go to lunch?
11 Q. Was there anything about Todd's conduct in 11 Q. Yes-- or that you were in the office and
12 relation to that you would describe as sexual 12 unable to, you know, have free time.
33. harassment? 13 A. Inthe summertime during the busy months, not
14 A. No, not with Todd and I, no. We never even 14 that much, but in the wintertime when it was me by
15 discussed our sexuality with each other. 15 myself with another person, | would ~ multiple times,
16 Q. Okay. So were there any points of 16 yeah ~ definitely, yeah.
27 dissatisfaction that you had with your employment at 17 Q. I'msorry. Are you done?
18 City Sightseeing that you failed to bring to someone's 18 A. Yeah.
19 attention? 19 Q. Sowhen you say that you were — it was so
20 A. Meaning that | wasn't happy there? 20 _ lightly staffed, just you and one other person, you're
a1 Q, (Nods head.) 21 talking about the winter months primarily; is that
22 A. No. I believe I told pretty much everything to 22 correct?
23. them. I described everything especially to Andrew. | 23 A, Primarily the winter months, yes.
24 told him the paychecks are bouncing; the -- and I'm not 24 Q. And ~and was it that short — that light
25. getting paid on time; I'm having issues with another 25 _ staffing, | should say, that also made it difficult for
ESQUIRE
an Alexander Gallo Company
Toll Free: 800.770.3363
Facsimile: 415.591.3335
Suite 1100
44 Montgomery Street
San Francisco, CA 94104
www.esquiresolutions.comGina Schembari June 7, 2011
1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
SALVATORE MINEO, GINA
SCHEMBARI, PHILLIP THOMAS
NAILS, BENJAMIN DUAX and
DAVID HAYWARD, individually
and on behalf of all others
similarly situated,
Plaintiffs,
vs. CASE NO. CGC-10-504804
CITY SIGHTSEEING CORPORATION,
a Delaware corporation, CITY
SIGHTSEEING WORLDWIDE and
DOES 1 through 500,
Defendants.
DEPOSITION OF
GINA SCHEMBARI
June 07, 2011
9:03 a.m.
44 Montgomery Street
Suite 1100
San Francisco, California
Rachel Ferrier, CSR 6948
Toll Free: 800.770.3363
Facsimile: 415.591.3335
Suite 1100
E IRE 44 Montgomery Street
San Francisco, CA 94104
an ntesandesGalloCompeny www.esquiresolutions.comGina Schembari June 7, 2011
73 75
1 MS. THOMPSON: Mark this next in order. 1 Q Whatis that?
2 (Exhibit No. 6 was marked for identification 2 A Whichis like third-party booking agencies.
3 by the Court Reporter.) 3 Q So you would read the e-mails from the FITS
4 MS. THOMPSON: Ms. Schembari, I'm going to ask 4 and they would be to book tours; correct?
5 you to take a look at what's been marked as Exhibit 6. 5 A Yes.
6 1 indicate for the record that these are 6 Q And then your job was to take that information
7_Ms. Schembar''s time sheets for the period June 18, 2009 7 and put it into the City Sightseeing system?
8 through June 7, 2010. 8 A Yes.
8 Q Soi you would look through this, does that 9 Q_ And “need Alc" would be also give them an
20 look correct, that these are your time sheets from City 10 Alcatraz ticket?
11 Sightseeing? a1.A Yes.
12 A_ Yeah, these look like them. 12 Q_ Was there anything else that you were doing as
13 Q_ Sobased on your experience from Jack in the 13 _ part of that training?
14 Box, you knew how to fill out a time sheet correctly? 14 A No.
as A Yes. 15. Q Okay.
16 Q You understood that when you fill out a time 16 A Forthe first few days, no. Sorry.
17 sheet, your employer was relying on the information you 17 Q_Who were you reporting to?
18 gave in order to pay you correctly? 18 A Whatdo you mean, "reporting to”?
19 A Ofcourse. 19 Q Whowas your supervisor?
20 — Q_Soif you look at the first page of Exhibit 6, 20 A_ From my understanding, it was Jamie White,
21 _ there isn't ~ it doesn't say anything under pay period, 21 because she's the only one that I had met.
22 but it does indicate that it covers the dates 6/18 22 Q Soyou knew what the rules were about taking
23 through 6/25, 23 breaks and lunches, so why didn't you take lunch during
24 Do you see that? 24 these days?
250 A Yes. 25 MR. MARTINEZ de la VEGA: Objection; assumes
74 76
1 Q > And does this look to you like your first time 1 facts, lacks foundation.
2 sheet at City Sightseeing? 2 BY MS. THOMPSON:
3. A Yeah, because the hours are really -- | never 3 Q You can answer the question.
4 worked short hours, so, yeah. 4 A Itwas busy. | mean, nobody ever told me to
5 Q_ There's actually -- strike that. 5 doanything. They just stuffed me into an office with
6 In the column for lunch, on each day you have 6 five people who didn't even talk to me, so no direction.
7 justa line through that column. 7 Q Ifyou look at the entry on Exhibit 5 for
8 What does that mean? 8 June 23rd, 2009, it shows your time as being from 1:30
9 A That means | didn't go break. 9 to 9:00.
20 Q__ You didn't have a lunch? 10 A Which time? June 23rd?
11. A No. 11 Q_ June 23rd.
12 Q_ What were you doing during this first week? 12. A Okay.
13. A__ Training, sitting in front of a computer with 13 Q_ Shows you started at 1:30, ended at 9:00.
14- no direction. 4 Do you see that?
1S Q_ Sowhen you said "training," who was working 15. A Okay.
16 with you? 16 Q_ And then over an hour is -- across that same
17. A_ Honestly, nobody. 17 column says 8.5, but that's crossed out and 7.5 is next
18 Q_ What kind of work were you doing? 18 toit.
19 A_ Basically | was told to go through e-mails and 19 Did you do that?
20 putin dates and try to put in -- match the tour -- you 20. A_ I don't remember.
21 know, put the tour, and then don't forget to put need 21 Q_ Does that indicate to you that you had a lunch
22 alcohol -- | mean need Alc, which is need Alcatraz. 22 that day?
23 Q So you would look at the e-mails and those 23 A_tdon't remember.
24 e-mails from customers? 24 — Q_Isallof the writing on this time sheet
25 A. From FiTs. 25 yours?
ESQUIRE
an Alexander Galle Company
Suite 1100
44 Montgomery Street
San Francisco, CA 94104
www.esquiresolutions.comDavid Hayward June 14, 2011
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
SALVATORE MINEO, GINA
SCHEMBARI, PHILLIP THOMAS
NAILS, BENJAMIN DUAX and
DAVID HAYWARD, individually
and on behalf of all others
similarly situated,
Plaintiffs,
vs. CASE NO. CGC-10-504804
CITY SIGHTSEEING CORPORATION,
a Delaware corporation, CITY
SIGHTSEEING WORLDWIDE and
DOES 1 through 500,
Defendants.
DEPOSITION OF
DAVID HAYWARD
June 14, 2011
9:47 a.m.
44 Montgomery Street
Suite 1100
San Francisco, California
Rachel Ferrier, CSR 6948
1David Hayward June 14, 2011
81 83
1 A Yes. 2 A No, tdontt.
2 Q Whatwas it? 2 Q Doyou remember further criticisms?
3 A That they could not tell me that | was fired, 3 A Dolremember what? Sorry.
4 let go, don't need you anymore. | was just left out in 4 Q_ Further criticisms about your driving times?
5 the dark wondering what was going on. 5 A No.
6 Q_ Had you received a response to your request to. 6 — Q Doyou recall further criticisms about your
7 Jamie to be put back on the schedule? 7 availability for work?
8 A No. 8 A Nottome, no.
2 Q Andis that what you were talking about when 9 MS. THOMPSON: Let's take a minute and we are
10 you say you received no response? 10 going to mark several exhibits.
a1 A Yes. an {Exhibit Nos. 12 through 16 were marked for
12 Q_ Had you made any other inquiries, called 12 identification by the Court Reporter.)
13 anybody or done anything else? 13 MS. THOMPSON: Let's go off the record.
14 A _I think | text-messaged Andrew, and | also 4 (Discussion off the record.)
15 left message for Chris Lovatt. 15 BY MS. THOMPSON:
16 Q And you don't recall getting responses from 16 Q So Exhibit 12 is an e-mail from John Ashton to
17 any of them? 17 Andrew Smith, Jamie White, and Chris Lovatt dated
is A No. 18 December 27, 3:40 p.m., and in it, John says, “why do we
19 Q_Soyou sent this e-mail? 19 use him?”
20 A Yes. 20 "Ok dave h seems to be the only driver to do
21 Q_ So then look at Exhibit 11, which is CS 163, 21 the down town" tour “in 1 hour 10 minutes.....this is of
22 and the e-mail at the top is dated December 6, 2009 at 22 all his tours....he has just done the last down town*
23 12:20 p.m., and it's from you to Jamie, and then below 23 tour “in less than one hour....sunday 27th december at
24 thats one the next day, December 7, sent at 11:14 a.m. 24 2:30pm."
25 from Jamie to you; is that correct? 25 Does this refresh your recolfection that you
82 84
1 A Yes. 1 started speeding up your tours again?
2 Q And then in the first e-mail, you say —to 2 A Seems like I did on this one, yes.
3. Jamie, and you say, "I just talked to Andrew, and we 3 Q Doyou recall Mr. Ashton talking to you about
4 sorted some things out.” 4 that around the end of December?
5 What does that mean? 5 A No.
6 A I believe it was over my timing of going on 6 — Q If youwill look, then, at Exhibit 13, which
7 the Downtown Loops; that they were going a little too 7 _ is an e-mail from Chris Lovatt to a number of people,
8 fast and to slow them down and we will put you back on 8 including you. if you will look about two-thirds of the
9 the schedule. 9 way down in the list, it says daveandgigit@netzero.com.
10 Q__Did it have anything to do with your not being 10. A Okay.
11 _ available over Thanksgiving weekend? 11 Q_ And Mr. Lovatt is expressing some real
12. A_ Possibly. 12. invitation with buses being back too quickly.
13. Q_ Whatwas your reaction to Andrew's comments to 13 Do you see that?
14 you? 14. A Yeah,
15 A_ Regarding this? 15 Q_Here he says, "I am sick and tired of seeing
16 Q_Yes. We are looking at Exhibit 11. 16 buses back on the wharf 1 hour after they start their
17 A. Grateful. 17 tour.”
18 Q_ Grateful that he put you back on the schedule? 18 Do you recall ending a tour that quickly?
19 A Yes. 19 A_ This is not directed to me. This could be any
20 Q_ Did you make an effort to change how you were 20 buses. He used the word "buses," so it's everybody.
21 operating your tours? 21 Q Well, do you, personally, though, remember
22. A Yes. 22 getting back to the wharf in an hour?
23 Q_Did that last? 23. A Onthis particular day? No, | don't recall.
24 A That's hard to say. 24 No.
25 Q Doyou remember if it lasted? 25 Q Onany day?David Hayward June 14, 2011
es 87
1 A Yes. Yes. Yeah. Yeah. 1 Q So is that why you decided not to stop there?
2 Q Does it do anything to refresh your 2. A No. No.
3 recollection that, at the end of 2009, you started 3 Q_ But you were -- the schedule did call for you
4 speeding up again? 4 to stop at Pier 43 1/2 and pick up passengers; is that
5 A No. 5 right?
6 Q_ Would you look at Exhibit 14 and, at the top, 6 A Yes. Right.
7 there's an e-mail dated February 28th, 2010 at 3:39 from 7 Q_ And you did not do that?
8 Jamie White to Andrew Smith and Chris Lovatt. 8 A Correct.
3 Do you see that? 9 Q_ Ifyou look at Exhibit 15, it's dated March 7,
10 A Yeah. 10 2010, and it's from Jamie to Andrew and Chris, and it
11 Q_And that says, "So once again... like every 11 says, "This is Dave pulling in an hour and 8 mins after
12 weekend Dave was the 2:30... itis now 3:32 and Dave 12 _ leaving dropping off on the wrong side," and then
13 drove down Columbus and just dropped passengers off on 13. there's a photo below that.
14 beach street.” 4 So if I'm reading this correctly, it looks
15 So the comment about dropping passengers off 15 _ like the returning too early was an ongoing problem?
16 on Beach Street, that was the wrong place to drop them; 16 A Okay.
17. correct? 17 Q_ Well, do you agree with that?
18 A Correct. 18 A Yeah.
i9 Q_ And do you agree that you did that? 19 Q_ And then Exhibit 16 is dated March 14 at
20 A Yes. 20 3:42 p.m. from Jamie to Andrew and Chris at City
21 Q And then the e-mail goes on to say, "So not 21 Sightseeing. She says, "| came down at 330 to see what
22 only did he skip Pier 39, 43 1/2... actually all of 22 time Dave was coming back and | saw Suz with no bus.”
23. Fisherman's Wharf.” 23 Do you know who Suz is?
24 So was it also correct that there were times 24 A Shewasa tour guide, yes.
25 when you simply skipped stopping points on a Downtown 25 Q _Isthat Suzanne?
86 8a
1 tour? 1 A Yes.
2 A Occasionally on the Pier 39, yes. 2 Q_ And when | asked her -- strike that.
3 Q__Did you also skip 43 1/2? 3 “When | asked where her bus was she said it
4 A Yes. 4 already left... They were the 230 so the tour was done
5 Q Sothen Jamie ends the e-mail by saying, 5 inless than an hour."
6 “sorry just venting, but just the same | say he should 6 So do you understand what is being said there
7 be fired." 7 about Suz being with no bus?
8 ‘And then there's an e-mail below that sent at a A Yes.
9 3:40 p.m. on the same date saying "Fire him then" from 9 Q > What did that mean?
10 Andrew to Jamie. 10 A That we had finished for the day.
1 Do you recall being told that your employment 11 Q_ This says, in the final sentence of
12 could be terminated? 12 Exhibit 16, that a tour was completed in less than an
13 A No. 13 hour.
14 Q_ And then there's a final e-mail on this 14 Do you think that's correct?
15 Exhibit 14, still on February 28th, 2010, at 3:47 p.m., 15 A I can only say what's on the -- what's in
16 and Jamie is writing to Andrew Smith and Chris Lovatt 16 front of me, so.
17 again and saying she left a message on voice mail 17 Q Well, you did complete tours in less than an
18 stating that, at 3:45, there were 15 people waiting to 18 hour on occasion; isn't that true?
19 be picked up at Pier 43 1/2. 19 A Yes.
20 Do you recall that you -- by not stopping at 20 Q While you were at City Sightseeing, the buses
21 43 1/2, you actually left customers there and didn't 21 became equipped with GPSes; correct?
22 pick them up? 22 A_ believe so.
23 A Well, no, because there would have been two 23 Q_ And that was a result of the early-return
24 buses before me going to Pier 43 1/2 at that particular 24 problem?
25 time, at 3:45. 25 A I don't know that.David Hayward June 14, 2011
89 91
1 Q _Butthe GPSes allowed the company to monitor BY MS. THOMPSON:
2 exactly where buses were at any given point in time; is 2 Q_ Your understanding of company policy?
3. that true? 3. A Yes, I think so. Yes.
4 A Correct. 4 Q Were you aware ~ strike that.
5 Q_Soif you had a given time period for a tour, 8 Did you ever compare your paychecks to your
6 your beginning and ending time, the guide who was with 6 time sheets to see whether you had been paid for your
7. you on the tour would have exactly the same time; 7 lunch-break time?
8 correct? 8 A No, didn't.
9 A Correct. 9 Q_ So | believe you said you thought you started
10 {Exhibit No, 17 was marked for identification 10 at$14.00 an hour?
a by the Court Reporter.) a1 A Yes.
12 BY MS. THOMPSON: 12 MS. THOMPSON: | have a lot of pay stubs here.
13. Q@_So,Mr. Hayward, you have been handed 13 | don't know that we want to put them all into the
14 Exhibit 17, which is a series of time sheets all dated 14 record, but let me show you -- let's mark one from 2007.
1s in 2007. 1s (Exhibit No. 18 was marked for identification
16 A Okay. 16 by the Court Reporter.)
17 Q Andis it correct that you began your work at 17 BY MS, THOMPSON:
18 City Sightseeing in 2007? 18 Q_ Ifyou look at that, under pay rate, it shows
19 A Yes. 19 $18.00 an hour.
20 Q_ So you started right in January; correct? 20 A Correct.
21 A Correct. 21 Q_ Sodo you believe that you actually started at
22 Q_ Inthe entry for January 7th, 2007, under 22 $18.00 an hour?
23 "Comments," you say, “20 minute lunch DD1 Joel.” 23. A Yes.
24 What does that mean? 24 Q_ And that was your same pay rate the entire
25 A Took a 20-minute lunch break on 25 time you were at City Sightseeing?
90) 92
1 Double-Decker 1, and Joe! was the tour guide. 1 A Correct.
2 Q Whydid you make a note of that? 2 Q Okay. So see here that you were getting a
3A The company wanted to know when you were 3. pay stub with deductions; right?
4 having ~ if you were taking lunch breaks. 4 A Yes.
5 Q@ So this would — and so now you have written SQ Soyou were classified as an employee?
6 down the length of your lunchtime? 6 A Yes.
7 A Correct. 7 Q_ That later changed to independent contractor?
8 Q_ You also have several 20-minute-lunch entries 8 A Yes.
9 from January 8th through January 14th; is that right? 9 Q Atyour request?
10 A Yes. 10 MR. MARTINEZ de la VEGA: Objection; assumes
11 Q_ Okay. So, again, you were trying to keep an 11 facts.
12 accurate record of how long you had for lunch? 12 THE WITNESS: No.
130A Yes. 13. BY MS, THOMPSON:
14 Q_ Were you always careful to write down how long 14 Q_ You didn't request it?
15 your lunch periods were? 15 A No.
is A Yes. 16 Q Howdid that come about?
17 Q_ Soit says 30 minutes, it was 30 minutes? a7 A. That's when | went to part-time, | believe.
18 A Yes. 18 Yeah, | think that's when | went to part-time.
19 Q_Ifitssays one hour, it's one hour? 19 Q_Doyou recall when you went to part-time?
20 A Yes. 20 A November ‘09.
21 Q Solunchtime was supposed to be unpaid; isn't 21 Q_ Okay. And why did you switch to part-time?
22 that right? 22 A_I moved to Lake County.
23 MR. MARTINEZ de la VEGA: Objection; assumes 23 Q_ Soitwas just too much of a commute?
24 ~~ facts. 24 A Yes.
28 You can answer. 25 Q Sol don'twant to spend time going over everyDavid Hayward June 14, 2011
93 95
1 _ single one of your time sheets. We can if you want to, 1 Q_ When you worked in the yard for an eight-hour
2 but would you look through that exhibit and confirm that 2 day, would you get anything to eat?
3 those are all your time sheets? 3. A No. There was nothing around there at all,
4 MR. MARTINEZ de la VEGA: Sorry. To clarify, 4 nothing. This was Yosemite Street, which is not a place
5 the question is that these are his time cards, not all 5 you want to be, and there was nothing there. It was
6 the time cards for his employment? 6 just industrial waste land.
7 BY MS. THOMPSON: 7 Q_ So you drove there in your own car; is that
8 Q Allofthe ones that appear in there belong to 8 right?
9 you? That's the question. 9 A Yes.
10 A Yes. 10 Q Soyou could have driven your car to go have
a Q_ Okay. And in looking at the top of the page, 1 lunch?
12 17, for instance, that's your signature? 12 A Correct.
13. A Yes. 3 (Exhibit No. 19 was marked for identification
14 Q_ Howdid you prepare your time sheets? Did you a4 by the Court Reporter.)
15 fill in all the dates at the beginning of the week, or 1s MS. THOMPSON: So looking at Exhibit 19, I'l
16 did you do it all at the end? 16 indicate for the record that these are your time sheets
17. A Adaily basis. 17 for 2008; although, the very first day of this pay
18 Q_Did you do that when you got back to the yard? 18 period is on December 31st of 2007.
19 A Yes. 19 Q And would you look through this and confirm
20 Q_ So looking at Exhibit 17, on January 9th, 20. that these time sheets were all yours for 2008.
21 2007, it shows that you worked in the yard in laundry 21 A With the exception of this. 1 don't know what
22 and blankets. 22 thatis.
23 That's what you were talking about before, 23 MS. THOMPSON: This document is Bates-stamped
24 that you picked up the blankets that were dirty? 24 CS 589, and it's blank except it says 60 hours at the
25 A Yes. 25 bottom, or $60.00. | don't know which that is,
94 96
1 Q And you took them home to clean? 1 Q Can you tet?
2 A Yes. 2 A_Idon't know what that is. That's not my
3 Q_Sotumto the time sheet for January 28th, 3 writing, so I don't know what this is. That's not my
4 2007 through February 11th. 4 writing,
8 Do you see that? 5 Q Where it says "Name" is not your writing?
6 A Yes. 6 A Yeah,
7 Q Andon February 7th and 8th, it shows that you 7 Q Sowith the exception of CS 589, all the other
8 worked in the yard; is that right? 8 documents in Exhibit 19
Preview
Oe SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-23-2012 4:10 pm Case Number: CGC-10-504804 Filing Date: Aug-23-2012 4:10 Filed by: MICHAEL RAYRAY Juke Box: 001 Image: 03737171 GENERIC CIVIL FILING (NO FEE) SALVATORE MINEO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY SIGHTSEEING CORPORATION, A DELAWARE et al 001003737171 Instructions: Please place this sheet on top of the document to be scanned. ahJONES BOTHWELL DION & THOMPSON LLP ELIZABETH THOMPSON (S.B. #112888) PAUL J. DION (S.B. #088231) 44 Montgomery Street, Suite 610 San Francisco, CA 94104-4608 Telephone: (415) 951-8900 Facsimile: (415) 951-8901 Attorneys for Defendant CitySightseeing Corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION SALVATORE MINEO, GINA SCHEMBARI, No. CGC-10-504804 PHILLIP THOMAS NAILS, BENJAMIN DUAX and DAVID HAYWARD, individually and on Action Filed: October 22, 2010 behalf of all others similarly situated, . SECOND SUPPLEMENTAL Plaintiffs, DECLARATION OF ELIZABETH THOMPSON IN OPPOSITION TO v PLAINTIFFS’ MOTION FOR CLASS CITY SIGHTSEEING CORPORATION, a CERTIFICATION Delaware corporation, CITY SIGHTSEEING WORLDWIDE and DOES 1 through 500, Date: August 30, 2012 inclusive, Time: 9:30 a.m. Defendants. Department: 302 Trial Date: November 13, 2012 AND RELATED CROSS-COMPLAINT. I, Elizabeth Thompson, declare as follows: I. Tama partner in the law firm of Jones Bothwell Dion & Thompson LLP, counsel for defendant CitySightseeing Corporation (“Defendant” or “CitySightseeing”) herein. The following facts are personally known to me unless stated otherwise, and if called as a witness, I would and could competently testify thereto under oath. 2. The deposition of CitySightseeing’s former General Manager, Andrew Smith, was taken by Ashwin Ladva, Plaintiffs’ counsel herein, on January 28, 2012. As shown by the deposition excerpts attached hereto as Exhibit M, Mr. Smith was questioned at length about SECOND SUPPLEMENTAL DECLARATION OF ELIZABETH THOMPSON Case No. CGC-10-504804 IN OPPOSITION TO MOTION FOR CLASS CERTIFICATION27 28 eo @ written, signed statements of current and former CitySightseeing employees collected by Jacqui Tully, an investigator working with defense counsel in this case. During the deposition, Mr. Smith testified that such statements had been received from a large number of current and former CitySightseeing employees in connection with this lawsuit. Copies of the statements, which were formulated as declarations and are referred to in this motion as “the 2011 Declarations,” had not been produced to Plaintiffs as of the date of Mr. Smith’s deposition. Plaintiffs have not sought production of the 2011 Declarations at any time since Mr. Smith’s deposition. 3. The 2011 Declarations were not intended to constitute waivers under Labor Code section 206.5, and they are not presented by Defendant in opposition to the motion for class certification for that reason. 4. Attached hereto as exhibits are true and correct copies the following: Exhibit M: Excerpts from the Deposition of Andrew Smith, taken January 28, 2012 Exhibit N: Excerpts from the Deposition of Salvatore Mineo, taken May 31, 2011 Exhibit O: Excerpts from the Deposition of Gina Schembari, taken June 7, 2011 Exhibit P: Excerpts from the Deposition of David Hayward, taken June 14, 2011 Exhibit Q: Excerpts from the Deposition of Benjamin Duax, taken June 17, 2011 Exhibit R: Excerpts from the Deposition of Phillip Thomas Nails, taken May 27, 2011 I declare under penalty of perjury that the foregoing is true and correct. Executed this 23rd date of August 2012 at San Francisco, California. Elizabeth SECOND SUPPLEMENTAL DECLARATION OF ELIZABETH THOMPSON Case No. CGC-10-504804 IN OPPOSITION TO MOTION FOR CLASS CERTIFICATIONIN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA SAN FRANCISCO COUNTY - UNLIMITED JURISDICTION Salvatore Mineo, Gina Schembari, Phillip Thomas Nails, Benjamin Duax, and David Hayward individually, and on behalf of all others similarly situated, Plaintiffs, vs. No. CGC-10-504804 CITY SIGHTSEEING CORPORATION, A DELAWARE CORPORATION, CITY SIGHTSEEING WORLDWIDE and DOES 1-500, inclusive, Defendants. DEPOSITION OF CITY SIGHTSEEING CORPORATION by and through ANDREW A. SMITH Person Most Knowledgeable SAN FRANCISCO, CALIFORNIA JANUARY 24, 2012 ATKINSON-BAKER, INC. COURT REPORTERS (800) 288-3376 www.depo.com REPORTED BY: MELLONY L. KNIGHT, CSR NO. 8448 FILE NO.: A60088EPage 122 Page 124 1 ‘A. I don't recall ever seeing it, no. [2 approach her. 2 Q. Having seen this, does this refresh your 2 MS. THOMPSON: For clarification, Ms. Tully was 3 recollection as to whether or not Mr. Oshins showed you | 3 _ hired by my law firm not directly by City Sightseeing. 4 this time sheet and explained to you why he felt he was 4 MR. LADVA: Q. And did Ms. Tully have a waiver 5 entitled to overtime pay? 5 that she had with her that the employees were asked to 6 A. No. 6 sign? 7 Q. Have any of the employees at City Sightseeing 7 A. Idon't~ 8 informed you that they had contact from your attorney's | 8 MS. THOMPSON: I object to the term "waiver" on 9 office regarding the class action lawsuit? 9 the same basis as before. 10 MS. THOMPSON: Counsel, would you state which | 10 MR. LADVA: Q. Did Ms. Tully have any 11 employees you're talking about. Mr. Watts, for instance, 11 documents that she presented the employees with and asked 12 is technically an employee of the company. 12 for them to sign? 13 MR. LADVA: Nonmanagerial employees. 13 ‘A. Not when she met with them, no. 14 MS. THOMPSON: Could you read the question back | 14 Q. Did she at any point send them documents asking 15 with that, 15 them to- asking the employees to sign documents? 16 (Pending question read.) 16 MS. THOMPSON: You can answer. 17 THE WITNESS: No, none of my present or past 17 THE WITNESS: So Ms. Tully presented the case, 18 — employees, as far as my knowledge, have been contacted by | 18 from my understanding, from a very ambiguous point of 19 — ourattomney. 19 view presenting the facts and what the people's positions 20 MR. LADVA: Q. Have you discussed the lawsuit 20 were and asked them what their point of views were and 21 with any of the nonmanagerial employees at City 21 what negative thoughts they had in retrospect of the 22 — Sightseeing? 22 company and so forth. And if said employees decided they 23 A. If they've approached me, yes. 23 wished to support in some form to support the company, I 24 Q. What have you told them about the lawsuit? 24 believe at a later date she sent them a form of some sort 25 A. I've told them they should read the literature 25 retracting their position from a class suit. Page 123 Page 125 1 that's been presented by yourselves and make their own 1 MR. LADVA: Q. And when was this form sent to 2 judgment call. 2 the employees asking them to retract their position from 3 Q. You never told them to sign a waiver? 3 the class action suit? 4 MS. THOMPSON: Objection: Vague, calls for a 4 A. I wouldn't know. 5 legal conclusion as to the meaning of the term "waiver." 5 Q. When was it that Ms. Tully was at City 6 MR. LADVA: Q. Have you ever had them signor| 6 — Sightseeing meeting with your employees? 7 told them they should sign a waiver? 7 A. I would say April of last year. 8 (Discussion between Ms. Thompson and witness.) | 8 Q. And how long was she present at City 9 MR. LADVA: Excuse me. Counseling during 9 Sightseeing? 10 — questions, I've let it go on long enough. 10 A. She actually didn't meet at City Sightseeing. 11 MS. THOMPSON: I object, Counsel. I've not 11. She met in a nondescript office within the same office 12 been counseling him during questions. 12 complex as ourselves and she came several times and sat 13 MR. LADVA: You guys have been meeting and | 13 and then everybody chose to go up and talk to her; they 14 conferring and answering questions. There's a question |14 chose. There was no set schedule. It was sort of a 15 pending. 15 free-will engagement. 16 MS. THOMPSON: That's a hundred percent false. | 16 Q. When you say she came several times, how many| 17 MR. LADVA: It's a hundred percent a lie then. 17 times does several mean? 18 I'd appreciate it if you answer the question. 18 A. Probably I believe two. 19 Would you read the question back. 19 Q. And how many hours — 20 (Pending question read.) 20 A. No. Actually, I believe it's more like four. 21 MS. THOMPSON: "Waiver" is ambiguous and 21 Q. And how many hours did she spend in this 22 ~ possibly calls for a legal conclusion. 22 nondescript office waiting for employees to come speak 23 THE WITNESS: City Sightseeing hired a lady by | 23 with her? 24 the name of Jackie Tully, T-u-I-I-y, to sit down with any | 24 A. Probably arrive early moming 9:00-ish. I 25 _ members of staff that wished on their own free will to 25 can't be specific on 9:00 o'clock. Probably left at 4:00 32 (Pages 122 to 125)Page 126 Page 128 1 or 5:00 o'clock. 1 signed it? 2 Q. And how were the employees made aware of 2 A. Ms. Tully has informed myself. 3 Ms. Tully's presence at City Sightseeing in this 3 Q. And how many people have signed it? 4 — nondescript office? 4 A. I believe 90. That's an approximate number. 5 ‘A. The management team let me know that there was 5 | think it's also worth noting that Ms. Tully 6 an independent investigator coming and if anyone wished 6 was also given the same list as yourself in terms of -- 7 to communicate with her about any issue regarding the 7 MS. THOMPSON: Don't voluntecr any more 8 lawsuit, similar in communication to E-mails and so 8 — information. Let him ask questions. 9 forth, then they were more than welcome to go upstairs 9 Let's take a short break. 10 and talk to them. 10 (Recess from 3:39 to 3:49 p.m.) qt Q. Did you also tell the employees that Ms. Tully lu ‘THE WITNESS: I'd like to say I used the word 12 was available for them to speak with and that she wasan | 12 “ambiguous” before in retrospect to Ms. Tully sitting 13 independent investigator? 13 down with the staff. I want to say "neutral" as in it 14 MS. THOMPSON: I'll object to the extent you're 14 wasn't one side or anything like that. Neutral, 15 asking for a verbatim response. 15 MR. LADVA: Q. How do you know it was neutral? 16 You can testify as to what you recall. 16 ‘A. Because we asked -- 17 THE WITNESS: I don't specifically recall any 17 MS. THOMPSON: Please don't reveal 18 in depth detail because it was tried to be conducted in a 18 — communications between you and Ms. Tully or you and me. 19 very non -- how should I put this? It was presented to 19 MR. LADVA: Q. Well, how do you know it was 20 the staff in a way it was their choice if they wished to 20 neutral? 21 go, if they didn't they didn't need to; it didn't make 21 A. [can't comment. 22 — any difference. There are, to my knowledge, people who | 22 Q. Why is that? 23 haven't been to talk to her who still work for the 23 A. Because it's client-privileged communication. 24 company. 24 Q. And you also said at one point a document was 25 MR. LADVA: Q. Okay. Let's go back to what 25 sent to employees from Ms. Tully retracting their support Page 127 Page 129 1 you actually said to the employees. 1 for the class action; is that fair? 2 A. Ican't specifically recall. 2 A. No. 3 Q. Let's talk about generally. 3 Q. What did you say? 4 What did you generally say to the employees? 4 A. Ms. Tully if asked by the employees she met 5 A. “Ms. Tully's here. She's an independent 5 with, if they asked -- I'll rephrase. 6 — investigator. If anyone wants to talk about the lawsuit 6 If the employees that met Ms. Tully decided 7 she's in Suite 23 or 43" or whatever it is “upstairs.” 7 they wished to support the company in some form, 8 And that was basically it. 8 Ms. Tully would send them a document of some sort that 9 Q. And when did you first learn of Ms. Tully's 9° would identify that that said person wished not to be 10 involvement in this lawsuit? 10 part of the class action. I have been given those 1 MS. THOMPSON: He's asking for a time. 11 documents, but I haven't actually read them out of 12 THE WITNESS: Specifically I can't tell you 12 respect for the employees and so forth. 13 without looking at the calendar. From approximately 13 Q. So you've been provided a copy of the documents 14 several weeks prior to her coming to Leavenworth. 14 that have been signed by employees saying that they do 15 MR. LADVA: Q. And when she came to 15 not want to be part of the class action lawsuit? 16 — Leavenworth, was it your understanding she had been hired | 16 A. Correct. 17 _ by your counsel to speak with employees at City 17 Q. Were the persons or the employees that have 18 — Sightseeing? 18 signed this document indicating that they do not wish to 19 A. Correct. 19 bea part of the class action lawsuit provided with any 20 Q. And have you seen this form that she sent to 20 incentives to sign that document? 21 the employees asking them to retract the support for the | 21 A. No. 22 class action suit? 22 Q. So they weren't provided with, for example, 23 A. Thaven't actually seen the specific form. I 23 better schedules? 24 — am aware of how many people have signed it. 24 A. No. 25 Q._ And how are you aware of how many people have | 25 Q. With more overtime? 33 (Pages 126 to 129)Page 130 Page 132 1 A. They were not given any extra hours, no. 1 Q. And the employees that signed this form, are 2 Q. Were they provided any money? 2 they bus drivers? 3 A. No. 3 A. My understanding it's anybody who's worked for 4 Q. Did you in any way, shape or form threaten the 4 the company. 5 employees that they would have to meet with Ms. Tully -] 5 Q. But do you know what type of employees have 6 A. No. 6 signed this document? Are they bus drivers? 7 Q. —And if they had not, there would be 7 A. They're employees. I would say everybody's 8 repercussions? 8 possibly signed it. There's no specific number of 9 A. Notatall. 9 precisely who. 10 And as stated earlier, there are present 10 Q. Do you know the names of the employees who have 11 employees that haven't met with Ms. Tully. 11 signed the document? 12 Q. Well, how do you know the employees that are | 12 A. No. 13 presently working there have not met with Ms. Tully? | 13 To clarify the point earlier. We have an 14 ‘A. Because -- actually, client-privilege 14 employee quantity of people. And Ms. Tully presented me 15 information, yeah. Client-privilege communication. 15 with X amount of documents that didn't match the same 16 Q. How is that client-privilege communication? 16 quantity of employees, Hence to say, why at the time | 7 MS. THOMPSON: He leamed it through the course | 17 — was aware that some people hadn't signed anything. 18 — ofaprivileged communication. 18 ‘And since that date I've been approached by two 19 MR. LADVA: Q. Earlier you said you didn't 19 — employees telling me they didn't want to sign it, 20 know which employees met with her or out of privacy for || 20 explaining. 21 your employees you weren't going to read their statements | | 21 Q. Did they tell you why they did not want to sign 22 showing they support the company. Now you're kindof || 22 it? 23 saying, I know who has not met with Ms, Tully. So which | | 23 A. No. 24 — one is it, Mr. Smith? 24 Q. Did you ask them why they did not want to sign 25 MS. THOMPSON: Objection: Argumentative and 25 it? Page 131 Page 133 1 misstates his testimony. 1 A. No. 2 MR. LADVA: Q. Do you want to say you support |} 2 Q. What are the names of these employees that told 3 your employees or -- you can't have it both ways. 3 you they did not want to sign the form? 4 MS. THOMPSON: That's not a question. 4 A. Keith Oshins and Ulrick Link, L-i-n-k. Sorry. 5 MR. LADVA: It's not. 5 Ulrick Link. 6 Q. So, Mr. Smith, how did you learn of which 6 Q. When did they tell you they did not want to 7 employees have not met with Ms. Tully? 7 sign this form? 8 MS. THOMPSON: | object to the extent it calls 8 A. Sometime in the summer. 9 for attorney-client communication or communication with 9 I was also made aware of a third person, which 10 Ms. Tully. 10 — was Walter Ceron, C-e-r-o-n, in a recent EDD hearing. ql MR. LADVA: Is Ms. Tully an attorney? ql Q. And how were you made aware that he did not 12 MS. THOMPSON: No. Ms. Tully has work product} 12 want to sign the form in the recent EDD hearing? 13 _ privilege with me. 13 A. He came with a letter from your office that he 14 THE WITNESS: Can we take two minutes break? | 14 — was wrongfully dismissed for not signing the form. But 1s MS. THOMPSON: I think we should so we can 15 the admission judge -- 16 clarify conditions relating to the privilege and the 16 MS. THOMPSON: That's fine. 17 extent of it. 7 MR. LADVA: Q. What did the administrative 18 (Recess from 3:50 to 4:00 p.m.) 18 judge say? 19 MR. LADVA: Q. What's your understanding as to | 19 A. She found that his claim was false. 20 what the document signed by the employees that Ms. Tully | 20 Q. Did she explain why she found his claims to be 21 sent to them means? 21 false? 22 A. Thaven't actually read the document, so. 22 A. Because he was found stealing on multiple 23 But my understanding is that the employees have 23 occurrences. 24 signed a form saying that they don't wish to be partofa | 24 Q. How long did the employees meet with Ms, Tully? 25 class action. 25 A. [have no idea. 34 (Pages 130 to 133)Salvatore Mineo May 31, 2011 1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO SALVATORE MINEO, GINA SCHEMBARI, PHILLIP THOMAS NAILS, BENJAMIN DUAX and DAVID HAYWARD, individually and on behalf of all others similarly situated, Plaintiffs, vs. No. CGC-10-504804 CITY SIGHTSEEING CORPORATION, a Delaware corporation, CITY SIGHTSEEING WORLDWIDE and DOES 1 through 500, Defendants. DEPOSITION OF SALVATORE MINEO (Pages 1 through 219) May 31, 2011 9:52 a.m. 44 Montgomery Street, 11th Floor San Francisco, California REPORTED BY: JOHNNA PIPER, CSR 11268 | Toll Free: 800.770.3363 Facsimile: 415.591.3335 Suite 1100 I ‘ [ IR I ‘ 44 Montgomery Street San Francisco, CA 94104 an ewandes Gallo Company www.esquiresolutions.comSalvatore Mineo May 31, 2011 7 79 1 Q. And then you would produce a receipt showing 1. reservation into the City Sightseeing system. 2 how much money the driver or guide had taken in? 2 ‘And then after | do that, | would call the bus 3 A Yes. Or sometimes the driver would do it 3. drivers, make sure that they're on time, their pickups, 4 himself, and he would hand over the receipt and then the 4 the lists are all ready, and -- so I don't know. 5 credit card machine. 5 Q. Sothese 40 to 50 e-mails, were those from 6 — Q. How long did that take? 6 customers placing orders? 7 A. Not very long, four minutes -- three minutes, 7 A. Yeah, through Expedia or different reservation 8 four minutes. 8 companies that we would work through -- Expedia, 9 Q. Sof someone had to cash out during the day 9 Travelocity, or — you know. 10 because of a credit card problem, they would be given a 10 Q. Soona day when you were able to take a rest 11 new machine, right? 11 break, how soon would that be? You would come in at 7; 12 A. Yes. If-- I'm sorry. 12. the next person would come in at 7:30. Assuming that 13 Q. Goahead. 13 you could take a break, when did you take it? 14 A, Ifthere was a credit card machine to give to 14 A. Itvaried throughout the day, but | don't 15 them, a lot of times there wasn't. 15 really remember actually what time. It was in the 16 Q. You also said you had to do something with an 16 —moming time if we could, so | would probably say around 17 envelope and drop it? 17 9:30, 10:00. 18 A. No. That was if it was the end of the shift. 18 Q. Wasit up to you to decide when to take a 19 You asked me if -- what the difference was between the 19 break? 20 morning shift and the end of the day shift? 20 A. Itwas up to the office staff. 21 Q. Right. 22 | forgot to mention also my duties — you asked 22 A. The person at night who counts all the cash 22 me about duties. | don't know if you want to go back to 23 drawer picks up the money, and then drops it in the ~ 23. that or you want me to wait. 24 the safe. 24 Q. Ifyou have additional duties, please tell me 25 Q. And that's on the premises there? 25 what they are. 78 80 1A Yes. 1 A. During my -- during the end of my shift, | 2 Q. Sohow long would you say the duties that 2 would have to call and confirm ail the drivers the day 3. are ~- the end of the day closing duties, how long would 3. before for the next day to make sure that they knew what 4 you say those took? 4 buses to take and different -- you know ~ and replace 5 A. Ican't~I really can't specify. | only did 5 the drivers, call other drivers to see if they could 6 that once, to be honest with you. I don't know. | mean 6 come in to work to replace them, and things like that. 7 to count the drawer and to balance everything out, | 7 Q. Sodid anybody else do that, or was that just 8 would say 20 minutes — you know, 20, 30, maybe 8 you? 9 20 minutes. 1 don't know. | just don't know. 9A. During ~ it was my duty. | was told by Jamie 10 —_Q. So going back to the duties that you performed 20 that it was my duty. 11 from 7 on that were specific to opening the business -- 11 Q. Sowere you the only one that did it? 12, A Yes. 12 A. No, | was not. Other people would do it. We 13 Q. ~ how long did -- did that series of events 13 would help each other out. 14 generally take you? 14 Q. Soyou said the time of breaks was up to the 1s A. It varied with every day depending on the 15 office staff. Tell me what that means. 16 schedule, if the drivers came on time, if they needed to 16 A. Wewere never given a certain time from the 17 change buses. A lot of times they didn’t know where the 17 person to - sometimes we weren't given times — 18 buses were located, which yard -- at that time there was 18 sometimes Chris Lovatt weuld come into the office, and 19 multiple yards. It all varied with every day, so when | 19 he would say, "Okay, Sal, go ahead and go take a 20 usually would walk in to the office, ! would do all the 20 couple -- go take a breather,” you know. So! would do 21 things, turn on the lights and put the signs out, and 21 that, but other times when they weren't around, like say 22. then | would come to the desk, and | would write out the 22 they had meetings or they had to -- Chris had to go in 23 e-mails, And there'd be -—- you know, especially in the 23 there, then we would talk about each other and we would 24 summertime, there'd be 40, 50 e-mails, you know, and 24 say, "Do you want to go take your 15? Go take your 15. 25 you'd have to, you know, copy, paste, or write the 25 Goto the bathroom, go” -- whatever, so... ESQUIRE sander Gullo Company Toll Free: 800.770.3363 Facsimile: 415.591.3335 Suite 1100 44 Montgomery Street San Francisco, CA 94104 www.esquiresolutions.comSalvatore Mineo May 31, 2011 ESQUIRE sander Gullo Company 317 119 1 Q. Soif we look at your time sheets, we can't 1A. Thatis my writing. 2 really tell from them whether or not you took a lunch. 2 Q. And does that refer to, 10/31 and 11/2 - or 3 Is that what you are saying? 3 11/1? Excuse me. 4 A. Yes, from looking at them, yes. What I'm 4 A. No. | believe - | don't remember exactly what 5 saying is that that's just -- that's not my writing 5 that meant or what that represented, but from what | — 6 there. 6 if! think back, is this -- is this my first time sheet 7 Q. lunderstand that. 7 here? 8 MR. MARTINEZ DE LA VEGA: That's fine. Just 8 Q. Yes, itis. 9 listen to her question. 9A, Very first one? Okay. There was a couple of 10 THE WITNESS: | am. I'm trying to. 10 training days that they did not put on my schedule, and ul MR. MARTINEZ DE LA VEGA: Okay. You're doing 11 | put that as a note that | was not paid for those 12 fine. Don't worry about it. 12 dates. | believe it was a day that -- | don’t know -- 13 THE WITNESS: No, I'm just asking -- | have 13 that | was riding buses -- | don't remember exactly what 14 questions too. 14 that was. 15 BY MS. THOMPSON: 15 Q. Sowould it have been correct that your first 16 Q. Sowhen you prepared these time sheets, was it 16 two days would have been training? 17 your intent to be accurate? 17. Yes. 18 A. Yes. 18 Q. And do you know whether you were ever paid for 19 Q. And you understood that City Sightseeing was 19 those first two days? 20 relying on your entries in order to calculate your 20 A. These days that are on here? 21 compensation? 21 Q. Yes, on Exhibit 9, the first page. 22 A. Yes, 22 A. | don't have the check stubs in front of me, 23 MR. MARTINEZ DE LA VEGA: Objection. 23. but--Idon'tknow. | don't remember. 24 Argumentative. 24 — Q. Look at the second page of Exhibit 9. 25 BY MS. THOMPSON: 25 A. Okay. 118 120 1 Q. Were you ever intentionally inaccurate on any 1 Q. And this appears to be your time sheet covering 2 of them? 2 the period November 2nd through November 15, 2009. Do 3 A. No, ma'am. 3 you agree with that? 4 Q. Solooking at the first page of Exhibit 9, can a A Yes, 5 you tell me if all the writing on that page is yours? SQ. Andis any of the writing on this document not 6 A, The first page here? 6 yours? 7 Q. Yes. 7 A. No. I believe that itis -- I believe that 8 A. No, not all of itis mine. 8 it's all mine on here. 9 Q. So which writing is not yours? 9 Q. So where it says “one half" for lunch each day, 10 A, Where it says "30 minutes,” "30 minutes.” 10 that indicates that you actually took a half-hour lunch? 11 Q. So this -- these would have been the first two a A. The only thing that I'm -- it's weird for me is 12 days you started work? 12 just that | don't write that small at all, and these are 13. A. Okay. 13 very tiny little one two, one two, one twos, so | don't 24 Q. Do you recall taking lunch breaks on those 14 knowif wrote those but... 1s days? 15 Q. Okay. So at the bottom, there's a column of 16 A. | do, Because it was my first day, they told 16 figures. It says "82 hours, 16 last pay period,” and 17 me go take lunch, yes. 17 then in a box "108" and next to that "hours." Do you 18 Q. And the second day as well? 18 see that? 19 A. Yes. 19 A. Yes. 20. Q. And then it says at the top "10/19 through 20 — Q. Solooking at where it says "16 last pay 21 11/1." Do you see that? 21 period," does that refresh your recollection about 22 A. Yes. 22 whether you were paid for the first two days of work? 23 Q. And it says, "Last two days not pai 23 A. "16 last pay period,” so does that mean that's 24 A. Yes. 24 for the 31st and the 1st? Or -- I'm sorry. | don't 25 Q. Is that your writing? 25 remember what this all means. It was a long time ago. 300.770.3363 15,591.3335 Suite 1100 44 Montgomery Street San Francisco, CA 94104 www.esquiresolutions.comSalvatore Mineo May 31, 2011 37 39 1 that. Okay. That was the first time that that 1 employee; different situations like that. | believe | 2 happened. 2 discussed it. If | don't remember any, then ~ you 3 ‘The second time that happened again, | went to 3. know. Itwas very uncomfortable. | can just say that, 4 goto Andrew, and | sat down with Andrew outside in the 4 avvery uncomfortable situation. 5 front, and | said to Andrew, "Andrew, I'm fed up with SQ. Are you talking about the entire course of your 6 this place. My checks are bouncing.” | said, "My 6 employment at City Sightseeing, or your discussions with 7 checks are not coming on time. We're not getting paid 7 Andrew? 8 overtime," | said to him, which was a fact everybody in 2 A. Notthe entire - I'm talking about the entire 9 the front desk knows that. | said, “And now I'm having 9 _ situation at City Sightseeing, but during the beginning, 10 issues with this guy Todd at the front desk.” 10 it wasn't that bad. | believe it because it was during ui He said to me, "Sal, you're like a gir 11 the wintertime that | got hired. We weren't getting as 12 You're gay, very similar,” he said to me, "so when you 12 much business, and | don't ~ don't know. It's 13 put yourself in a situation with another gay guy,” he 13 difficult to say. 14 said to me, "you're like two women, and you argue. You 14 My other complaint ~I'm sorry. 15. overthink it,” he said to me. 18 Q. Did you have another complaint that you brought 16 That upset me too much, and | said Andrew, 16 to someone's attention? 17 "Keep my sexuality out of it," | said to him at that 17 A. Well, the other complaints were about the: 18 point. Shortly after that | left. 18 breaks that we were getting at work. That was very 19 Todd actually left before me so... 19 uncomfortable to me. There would be times when | would 20 Q. What wast that Todd was doing or saying that 20 be inthe office with just me and Maria and ~- or me and 21 made you uncomfortable? 21 Jake, me and whoever would be — or for lunch break. 22 A. He came into the office. He came in working 22 And we wouldn't be able to leave to go get lunch because 23 for - he used to work for a different company at the 23 the other person couldn't stay at the office one person 24 wharf, Bay Cruise -- | believe it was Bay Cruise. And 24 atatime. So I'd have to wait a while in order for me 25 he would just come in, and he felt - | felt as though | 25 togo. Sometimes we didn't even go to take lunches 38 40 1 _ he ~ like | would use the credit card machine, and he 1 because that just would be that sometimes the people 2 would come in and bump me out of the credit card machine 2 would come in and bring food in the office, you know. 3. to.use it, and things like that that | asked him not to 3 Another situation — I can go on. Would you 4 do. And one day he accidentally bumped my head, and | 4 like me to go on? 5 just told -- | went upstairs and | told them, you know, 5 Q. No. Let me ~ let me ask you questions now. 6 it's not okay, and he yelled at me in front of all the 6 A. Okay. 7 guests that were downstairs. We had a full office, and 7 Q, Onhow many occasions would you say that you 8 he yelled at me, and he turned It into a show, and | 8 were not able to have a work-free lunch, when you 8 felt uncomfortable. And that’s when I went to go 9 weren't doing any work? 10 discuss it with them, 10 A. Howmany occasions that I didn't go to lunch? 11 Q. Was there anything about Todd's conduct in 11 Q. Yes-- or that you were in the office and 12 relation to that you would describe as sexual 12 unable to, you know, have free time. 33. harassment? 13 A. Inthe summertime during the busy months, not 14 A. No, not with Todd and I, no. We never even 14 that much, but in the wintertime when it was me by 15 discussed our sexuality with each other. 15 myself with another person, | would ~ multiple times, 16 Q. Okay. So were there any points of 16 yeah ~ definitely, yeah. 27 dissatisfaction that you had with your employment at 17 Q. I'msorry. Are you done? 18 City Sightseeing that you failed to bring to someone's 18 A. Yeah. 19 attention? 19 Q. Sowhen you say that you were — it was so 20 A. Meaning that | wasn't happy there? 20 _ lightly staffed, just you and one other person, you're a1 Q, (Nods head.) 21 talking about the winter months primarily; is that 22 A. No. I believe I told pretty much everything to 22 correct? 23. them. I described everything especially to Andrew. | 23 A, Primarily the winter months, yes. 24 told him the paychecks are bouncing; the -- and I'm not 24 Q. And ~and was it that short — that light 25. getting paid on time; I'm having issues with another 25 _ staffing, | should say, that also made it difficult for ESQUIRE an Alexander Gallo Company Toll Free: 800.770.3363 Facsimile: 415.591.3335 Suite 1100 44 Montgomery Street San Francisco, CA 94104 www.esquiresolutions.comGina Schembari June 7, 2011 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO SALVATORE MINEO, GINA SCHEMBARI, PHILLIP THOMAS NAILS, BENJAMIN DUAX and DAVID HAYWARD, individually and on behalf of all others similarly situated, Plaintiffs, vs. CASE NO. CGC-10-504804 CITY SIGHTSEEING CORPORATION, a Delaware corporation, CITY SIGHTSEEING WORLDWIDE and DOES 1 through 500, Defendants. DEPOSITION OF GINA SCHEMBARI June 07, 2011 9:03 a.m. 44 Montgomery Street Suite 1100 San Francisco, California Rachel Ferrier, CSR 6948 Toll Free: 800.770.3363 Facsimile: 415.591.3335 Suite 1100 E IRE 44 Montgomery Street San Francisco, CA 94104 an ntesandesGalloCompeny www.esquiresolutions.comGina Schembari June 7, 2011 73 75 1 MS. THOMPSON: Mark this next in order. 1 Q Whatis that? 2 (Exhibit No. 6 was marked for identification 2 A Whichis like third-party booking agencies. 3 by the Court Reporter.) 3 Q So you would read the e-mails from the FITS 4 MS. THOMPSON: Ms. Schembari, I'm going to ask 4 and they would be to book tours; correct? 5 you to take a look at what's been marked as Exhibit 6. 5 A Yes. 6 1 indicate for the record that these are 6 Q And then your job was to take that information 7_Ms. Schembar''s time sheets for the period June 18, 2009 7 and put it into the City Sightseeing system? 8 through June 7, 2010. 8 A Yes. 8 Q Soi you would look through this, does that 9 Q_ And “need Alc" would be also give them an 20 look correct, that these are your time sheets from City 10 Alcatraz ticket? 11 Sightseeing? a1.A Yes. 12 A_ Yeah, these look like them. 12 Q_ Was there anything else that you were doing as 13 Q_ Sobased on your experience from Jack in the 13 _ part of that training? 14 Box, you knew how to fill out a time sheet correctly? 14 A No. as A Yes. 15. Q Okay. 16 Q You understood that when you fill out a time 16 A Forthe first few days, no. Sorry. 17 sheet, your employer was relying on the information you 17 Q_Who were you reporting to? 18 gave in order to pay you correctly? 18 A Whatdo you mean, "reporting to”? 19 A Ofcourse. 19 Q Whowas your supervisor? 20 — Q_Soif you look at the first page of Exhibit 6, 20 A_ From my understanding, it was Jamie White, 21 _ there isn't ~ it doesn't say anything under pay period, 21 because she's the only one that I had met. 22 but it does indicate that it covers the dates 6/18 22 Q Soyou knew what the rules were about taking 23 through 6/25, 23 breaks and lunches, so why didn't you take lunch during 24 Do you see that? 24 these days? 250 A Yes. 25 MR. MARTINEZ de la VEGA: Objection; assumes 74 76 1 Q > And does this look to you like your first time 1 facts, lacks foundation. 2 sheet at City Sightseeing? 2 BY MS. THOMPSON: 3. A Yeah, because the hours are really -- | never 3 Q You can answer the question. 4 worked short hours, so, yeah. 4 A Itwas busy. | mean, nobody ever told me to 5 Q_ There's actually -- strike that. 5 doanything. They just stuffed me into an office with 6 In the column for lunch, on each day you have 6 five people who didn't even talk to me, so no direction. 7 justa line through that column. 7 Q Ifyou look at the entry on Exhibit 5 for 8 What does that mean? 8 June 23rd, 2009, it shows your time as being from 1:30 9 A That means | didn't go break. 9 to 9:00. 20 Q__ You didn't have a lunch? 10 A Which time? June 23rd? 11. A No. 11 Q_ June 23rd. 12 Q_ What were you doing during this first week? 12. A Okay. 13. A__ Training, sitting in front of a computer with 13 Q_ Shows you started at 1:30, ended at 9:00. 14- no direction. 4 Do you see that? 1S Q_ Sowhen you said "training," who was working 15. A Okay. 16 with you? 16 Q_ And then over an hour is -- across that same 17. A_ Honestly, nobody. 17 column says 8.5, but that's crossed out and 7.5 is next 18 Q_ What kind of work were you doing? 18 toit. 19 A_ Basically | was told to go through e-mails and 19 Did you do that? 20 putin dates and try to put in -- match the tour -- you 20. A_ I don't remember. 21 know, put the tour, and then don't forget to put need 21 Q_ Does that indicate to you that you had a lunch 22 alcohol -- | mean need Alc, which is need Alcatraz. 22 that day? 23 Q So you would look at the e-mails and those 23 A_tdon't remember. 24 e-mails from customers? 24 — Q_Isallof the writing on this time sheet 25 A. From FiTs. 25 yours? ESQUIRE an Alexander Galle Company Suite 1100 44 Montgomery Street San Francisco, CA 94104 www.esquiresolutions.comDavid Hayward June 14, 2011 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO SALVATORE MINEO, GINA SCHEMBARI, PHILLIP THOMAS NAILS, BENJAMIN DUAX and DAVID HAYWARD, individually and on behalf of all others similarly situated, Plaintiffs, vs. CASE NO. CGC-10-504804 CITY SIGHTSEEING CORPORATION, a Delaware corporation, CITY SIGHTSEEING WORLDWIDE and DOES 1 through 500, Defendants. DEPOSITION OF DAVID HAYWARD June 14, 2011 9:47 a.m. 44 Montgomery Street Suite 1100 San Francisco, California Rachel Ferrier, CSR 6948 1David Hayward June 14, 2011 81 83 1 A Yes. 2 A No, tdontt. 2 Q Whatwas it? 2 Q Doyou remember further criticisms? 3 A That they could not tell me that | was fired, 3 A Dolremember what? Sorry. 4 let go, don't need you anymore. | was just left out in 4 Q_ Further criticisms about your driving times? 5 the dark wondering what was going on. 5 A No. 6 Q_ Had you received a response to your request to. 6 — Q Doyou recall further criticisms about your 7 Jamie to be put back on the schedule? 7 availability for work? 8 A No. 8 A Nottome, no. 2 Q Andis that what you were talking about when 9 MS. THOMPSON: Let's take a minute and we are 10 you say you received no response? 10 going to mark several exhibits. a1 A Yes. an {Exhibit Nos. 12 through 16 were marked for 12 Q_ Had you made any other inquiries, called 12 identification by the Court Reporter.) 13 anybody or done anything else? 13 MS. THOMPSON: Let's go off the record. 14 A _I think | text-messaged Andrew, and | also 4 (Discussion off the record.) 15 left message for Chris Lovatt. 15 BY MS. THOMPSON: 16 Q And you don't recall getting responses from 16 Q So Exhibit 12 is an e-mail from John Ashton to 17 any of them? 17 Andrew Smith, Jamie White, and Chris Lovatt dated is A No. 18 December 27, 3:40 p.m., and in it, John says, “why do we 19 Q_Soyou sent this e-mail? 19 use him?” 20 A Yes. 20 "Ok dave h seems to be the only driver to do 21 Q_ So then look at Exhibit 11, which is CS 163, 21 the down town" tour “in 1 hour 10 minutes.....this is of 22 and the e-mail at the top is dated December 6, 2009 at 22 all his tours....he has just done the last down town* 23 12:20 p.m., and it's from you to Jamie, and then below 23 tour “in less than one hour....sunday 27th december at 24 thats one the next day, December 7, sent at 11:14 a.m. 24 2:30pm." 25 from Jamie to you; is that correct? 25 Does this refresh your recolfection that you 82 84 1 A Yes. 1 started speeding up your tours again? 2 Q And then in the first e-mail, you say —to 2 A Seems like I did on this one, yes. 3. Jamie, and you say, "I just talked to Andrew, and we 3 Q Doyou recall Mr. Ashton talking to you about 4 sorted some things out.” 4 that around the end of December? 5 What does that mean? 5 A No. 6 A I believe it was over my timing of going on 6 — Q If youwill look, then, at Exhibit 13, which 7 the Downtown Loops; that they were going a little too 7 _ is an e-mail from Chris Lovatt to a number of people, 8 fast and to slow them down and we will put you back on 8 including you. if you will look about two-thirds of the 9 the schedule. 9 way down in the list, it says daveandgigit@netzero.com. 10 Q__Did it have anything to do with your not being 10. A Okay. 11 _ available over Thanksgiving weekend? 11 Q_ And Mr. Lovatt is expressing some real 12. A_ Possibly. 12. invitation with buses being back too quickly. 13. Q_ Whatwas your reaction to Andrew's comments to 13 Do you see that? 14 you? 14. A Yeah, 15 A_ Regarding this? 15 Q_Here he says, "I am sick and tired of seeing 16 Q_Yes. We are looking at Exhibit 11. 16 buses back on the wharf 1 hour after they start their 17 A. Grateful. 17 tour.” 18 Q_ Grateful that he put you back on the schedule? 18 Do you recall ending a tour that quickly? 19 A Yes. 19 A_ This is not directed to me. This could be any 20 Q_ Did you make an effort to change how you were 20 buses. He used the word "buses," so it's everybody. 21 operating your tours? 21 Q Well, do you, personally, though, remember 22. A Yes. 22 getting back to the wharf in an hour? 23 Q_Did that last? 23. A Onthis particular day? No, | don't recall. 24 A That's hard to say. 24 No. 25 Q Doyou remember if it lasted? 25 Q Onany day?David Hayward June 14, 2011 es 87 1 A Yes. Yes. Yeah. Yeah. 1 Q So is that why you decided not to stop there? 2 Q Does it do anything to refresh your 2. A No. No. 3 recollection that, at the end of 2009, you started 3 Q_ But you were -- the schedule did call for you 4 speeding up again? 4 to stop at Pier 43 1/2 and pick up passengers; is that 5 A No. 5 right? 6 Q_ Would you look at Exhibit 14 and, at the top, 6 A Yes. Right. 7 there's an e-mail dated February 28th, 2010 at 3:39 from 7 Q_ And you did not do that? 8 Jamie White to Andrew Smith and Chris Lovatt. 8 A Correct. 3 Do you see that? 9 Q_ Ifyou look at Exhibit 15, it's dated March 7, 10 A Yeah. 10 2010, and it's from Jamie to Andrew and Chris, and it 11 Q_And that says, "So once again... like every 11 says, "This is Dave pulling in an hour and 8 mins after 12 weekend Dave was the 2:30... itis now 3:32 and Dave 12 _ leaving dropping off on the wrong side," and then 13 drove down Columbus and just dropped passengers off on 13. there's a photo below that. 14 beach street.” 4 So if I'm reading this correctly, it looks 15 So the comment about dropping passengers off 15 _ like the returning too early was an ongoing problem? 16 on Beach Street, that was the wrong place to drop them; 16 A Okay. 17. correct? 17 Q_ Well, do you agree with that? 18 A Correct. 18 A Yeah. i9 Q_ And do you agree that you did that? 19 Q_ And then Exhibit 16 is dated March 14 at 20 A Yes. 20 3:42 p.m. from Jamie to Andrew and Chris at City 21 Q And then the e-mail goes on to say, "So not 21 Sightseeing. She says, "| came down at 330 to see what 22 only did he skip Pier 39, 43 1/2... actually all of 22 time Dave was coming back and | saw Suz with no bus.” 23. Fisherman's Wharf.” 23 Do you know who Suz is? 24 So was it also correct that there were times 24 A Shewasa tour guide, yes. 25 when you simply skipped stopping points on a Downtown 25 Q _Isthat Suzanne? 86 8a 1 tour? 1 A Yes. 2 A Occasionally on the Pier 39, yes. 2 Q_ And when | asked her -- strike that. 3 Q__Did you also skip 43 1/2? 3 “When | asked where her bus was she said it 4 A Yes. 4 already left... They were the 230 so the tour was done 5 Q Sothen Jamie ends the e-mail by saying, 5 inless than an hour." 6 “sorry just venting, but just the same | say he should 6 So do you understand what is being said there 7 be fired." 7 about Suz being with no bus? 8 ‘And then there's an e-mail below that sent at a A Yes. 9 3:40 p.m. on the same date saying "Fire him then" from 9 Q > What did that mean? 10 Andrew to Jamie. 10 A That we had finished for the day. 1 Do you recall being told that your employment 11 Q_ This says, in the final sentence of 12 could be terminated? 12 Exhibit 16, that a tour was completed in less than an 13 A No. 13 hour. 14 Q_ And then there's a final e-mail on this 14 Do you think that's correct? 15 Exhibit 14, still on February 28th, 2010, at 3:47 p.m., 15 A I can only say what's on the -- what's in 16 and Jamie is writing to Andrew Smith and Chris Lovatt 16 front of me, so. 17 again and saying she left a message on voice mail 17 Q Well, you did complete tours in less than an 18 stating that, at 3:45, there were 15 people waiting to 18 hour on occasion; isn't that true? 19 be picked up at Pier 43 1/2. 19 A Yes. 20 Do you recall that you -- by not stopping at 20 Q While you were at City Sightseeing, the buses 21 43 1/2, you actually left customers there and didn't 21 became equipped with GPSes; correct? 22 pick them up? 22 A_ believe so. 23 A Well, no, because there would have been two 23 Q_ And that was a result of the early-return 24 buses before me going to Pier 43 1/2 at that particular 24 problem? 25 time, at 3:45. 25 A I don't know that.David Hayward June 14, 2011 89 91 1 Q _Butthe GPSes allowed the company to monitor BY MS. THOMPSON: 2 exactly where buses were at any given point in time; is 2 Q_ Your understanding of company policy? 3. that true? 3. A Yes, I think so. Yes. 4 A Correct. 4 Q Were you aware ~ strike that. 5 Q_Soif you had a given time period for a tour, 8 Did you ever compare your paychecks to your 6 your beginning and ending time, the guide who was with 6 time sheets to see whether you had been paid for your 7. you on the tour would have exactly the same time; 7 lunch-break time? 8 correct? 8 A No, didn't. 9 A Correct. 9 Q_ So | believe you said you thought you started 10 {Exhibit No, 17 was marked for identification 10 at$14.00 an hour? a by the Court Reporter.) a1 A Yes. 12 BY MS. THOMPSON: 12 MS. THOMPSON: | have a lot of pay stubs here. 13. Q@_So,Mr. Hayward, you have been handed 13 | don't know that we want to put them all into the 14 Exhibit 17, which is a series of time sheets all dated 14 record, but let me show you -- let's mark one from 2007. 1s in 2007. 1s (Exhibit No. 18 was marked for identification 16 A Okay. 16 by the Court Reporter.) 17 Q Andis it correct that you began your work at 17 BY MS, THOMPSON: 18 City Sightseeing in 2007? 18 Q_ Ifyou look at that, under pay rate, it shows 19 A Yes. 19 $18.00 an hour. 20 Q_ So you started right in January; correct? 20 A Correct. 21 A Correct. 21 Q_ Sodo you believe that you actually started at 22 Q_ Inthe entry for January 7th, 2007, under 22 $18.00 an hour? 23 "Comments," you say, “20 minute lunch DD1 Joel.” 23. A Yes. 24 What does that mean? 24 Q_ And that was your same pay rate the entire 25 A Took a 20-minute lunch break on 25 time you were at City Sightseeing? 90) 92 1 Double-Decker 1, and Joe! was the tour guide. 1 A Correct. 2 Q Whydid you make a note of that? 2 Q Okay. So see here that you were getting a 3A The company wanted to know when you were 3. pay stub with deductions; right? 4 having ~ if you were taking lunch breaks. 4 A Yes. 5 Q@ So this would — and so now you have written SQ Soyou were classified as an employee? 6 down the length of your lunchtime? 6 A Yes. 7 A Correct. 7 Q_ That later changed to independent contractor? 8 Q_ You also have several 20-minute-lunch entries 8 A Yes. 9 from January 8th through January 14th; is that right? 9 Q Atyour request? 10 A Yes. 10 MR. MARTINEZ de la VEGA: Objection; assumes 11 Q_ Okay. So, again, you were trying to keep an 11 facts. 12 accurate record of how long you had for lunch? 12 THE WITNESS: No. 130A Yes. 13. BY MS, THOMPSON: 14 Q_ Were you always careful to write down how long 14 Q_ You didn't request it? 15 your lunch periods were? 15 A No. is A Yes. 16 Q Howdid that come about? 17 Q_ Soit says 30 minutes, it was 30 minutes? a7 A. That's when | went to part-time, | believe. 18 A Yes. 18 Yeah, | think that's when | went to part-time. 19 Q_Ifitssays one hour, it's one hour? 19 Q_Doyou recall when you went to part-time? 20 A Yes. 20 A November ‘09. 21 Q Solunchtime was supposed to be unpaid; isn't 21 Q_ Okay. And why did you switch to part-time? 22 that right? 22 A_I moved to Lake County. 23 MR. MARTINEZ de la VEGA: Objection; assumes 23 Q_ Soitwas just too much of a commute? 24 ~~ facts. 24 A Yes. 28 You can answer. 25 Q Sol don'twant to spend time going over everyDavid Hayward June 14, 2011 93 95 1 _ single one of your time sheets. We can if you want to, 1 Q_ When you worked in the yard for an eight-hour 2 but would you look through that exhibit and confirm that 2 day, would you get anything to eat? 3 those are all your time sheets? 3. A No. There was nothing around there at all, 4 MR. MARTINEZ de la VEGA: Sorry. To clarify, 4 nothing. This was Yosemite Street, which is not a place 5 the question is that these are his time cards, not all 5 you want to be, and there was nothing there. It was 6 the time cards for his employment? 6 just industrial waste land. 7 BY MS. THOMPSON: 7 Q_ So you drove there in your own car; is that 8 Q Allofthe ones that appear in there belong to 8 right? 9 you? That's the question. 9 A Yes. 10 A Yes. 10 Q Soyou could have driven your car to go have a Q_ Okay. And in looking at the top of the page, 1 lunch? 12 17, for instance, that's your signature? 12 A Correct. 13. A Yes. 3 (Exhibit No. 19 was marked for identification 14 Q_ Howdid you prepare your time sheets? Did you a4 by the Court Reporter.) 15 fill in all the dates at the beginning of the week, or 1s MS. THOMPSON: So looking at Exhibit 19, I'l 16 did you do it all at the end? 16 indicate for the record that these are your time sheets 17. A Adaily basis. 17 for 2008; although, the very first day of this pay 18 Q_Did you do that when you got back to the yard? 18 period is on December 31st of 2007. 19 A Yes. 19 Q And would you look through this and confirm 20 Q_ So looking at Exhibit 17, on January 9th, 20. that these time sheets were all yours for 2008. 21 2007, it shows that you worked in the yard in laundry 21 A With the exception of this. 1 don't know what 22 and blankets. 22 thatis. 23 That's what you were talking about before, 23 MS. THOMPSON: This document is Bates-stamped 24 that you picked up the blankets that were dirty? 24 CS 589, and it's blank except it says 60 hours at the 25 A Yes. 25 bottom, or $60.00. | don't know which that is, 94 96 1 Q And you took them home to clean? 1 Q Can you tet? 2 A Yes. 2 A_Idon't know what that is. That's not my 3 Q_Sotumto the time sheet for January 28th, 3 writing, so I don't know what this is. That's not my 4 2007 through February 11th. 4 writing, 8 Do you see that? 5 Q Where it says "Name" is not your writing? 6 A Yes. 6 A Yeah, 7 Q Andon February 7th and 8th, it shows that you 7 Q Sowith the exception of CS 589, all the other 8 worked in the yard; is that right? 8 documents in Exhibit 19