Preview
DISCOVERY
1 LAWRENCE A. ORGAN (SBN 175503)
NAVRUZ AVLONI (SBN 279556)
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CALIFORNIA CIVIL RIGHTS LAW GROUP ELECTRONICALLY
3 332 San Anselmo Ave. F I L E D
San Anselmo, California, 94960 Superior Court of California,
4 Telephone: (415) 453-4740
County of San Francisco
Facsimile: (415) 785-7352 12/22/2020
5 Clerk of the Court
larry@civilrightsca.com BY: SANDRA SCHIRO
6 navruz@civilrightsca.com Deputy Clerk
noah@civilrightsca.com
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Attorneys for Plaintiff
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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11 IN AND FOR THE COUNTY OF SAN FRANCISCO – UNLIMITED JURISDICTION
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Case No.: CGC 18-568967
13 BRENDAN MANNIX,
14 DECLARATION OF MOLLY F.
Plaintiff, DURKIN IN SUPPORT OF PLAINTIFF
15 BRENDAN MANNIX’S MOTION FOR
v. AN ORDER COMPELLING FURTHER
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RESPONSES TO SPECIAL
17 CITY AND COUNTY OF SAN INTERROGATORIES 75, 76, 79, 80, 83,
FRANCISCO; and DOES 1 - 10, inclusive, 84, 87, & 88
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Defendants. Date: January 22, 2021
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Time: 9:00 A.M.
20 Dept.: 302
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DECLARATION OF MOLLY F. DURKIN IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL FURTHER REPONSES TO SPECIAL INTERROGATORIES
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2 DECLARATION OF MOLLY F. DURKIN
3 I, Molly F. Durkin, declare:
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1. I am an attorney duly licensed to practice before all courts of the State of
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California and am an attorney with Durkin & Hood LLP representing Plaintiff Brendan Mannix.
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I have personal knowledge of the facts set forth below, except for those matters stated on
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information and belief and if called upon to do so, I could and would testify to them.
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STATEMENT OF FACTS/BACKGROUND
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2. The operative Complaint in this action alleges the following. Plaintiff is a
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superlative officer with the San Francisco Police Department and has been since May 2015,
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when he graduated at the top of his class from the police academy. He performed well during his
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probationary year at Richmond Station. However, when Plaintiff was assigned to Central Station
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in Fall 2016, Plaintiff found himself in an environment of sexism, homophobia, transphobia, and
15 toxic masculinity. That environment emboldened three sergeants at Central Station to embark
16 upon a campaign of anti-gay and sexist harassment that lasted for more than one year.
17 Thereafter, Plaintiff filed a complaint with Defendant’s Department of Human Resources, Equal
18 Employment Opportunity Division.
19 3. On or about August 31, 2017, Plaintiff filed a complaint with Defendant’s
20 Department of Human Resources (“DHR”), Equal Employment Opportunity (“EEO”) Division.
21 On or about December 5, 2017, Human Resources Director Micki Callahan sent Plaintiff a letter
22 notifying him that “DHR EEO will not investigate and will administratively close [his EEO]
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complaint” on the grounds that “[his] allegations are insufficient to raise an inference of
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harassment or retaliation.” Attached hereto as Exhibit A is a true and correct copy of the letter
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that Plaintiff received.
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4. In the course of discovery in this action, we learned that the City closed his
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complaint without interviewing Plaintiff, the alleged harassers or any other witness, or
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conducting any other investigation into his allegations of harassment and/or retaliation. The City
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DECLARATION OF MOLLY F. DURKIN IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL FURTHER REPONSES TO SPECIAL INTERROGATORIES
1 did, however, determine that some of the conduct alleged, if true, would have violated the City’s
2 EEO policy. As such, the Sergeant accused of said harassing conduct was counselled.
3 5. The first session of the deposition of Linda Simon, the Director of the City’s EEO
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Division, took place on September 28, 2020. Ms. Simon testified that she was responsible for
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review of Plaintiff’s EEO Complaint and recommended that his complaint be administratively
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closed without investigation. She testified that one of her job duties is to review all complaints
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of discrimination, harassment, and retaliation (i.e., EEO complaints) that are filed by employees
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of the City. She testified that in all cases, Ms. Simon made the recommendation regarding
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whether a case will be investigated or administratively closed, and Micki Callahan, Director of
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Human Resources, then makes the final determination. Ms. Simon further testified that
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information about complaints filed and determination of those complaints is kept in a database,
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including an indication where the finding was an “administrative closure.” It also appears that
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EEO complaints can easily be searched by year since case numbers include the year and then a
15 sequential number unique to each new complaint, e.g., EEO-2019-00028. In fact, to obtain the
16 number of EEO complaints that were filed, Defendant need only look at the last complaint filed
17 each of the four requested years. Attached hereto as Exhibit B is a true and correct copy of the
18 relevant portions of Ms. Simon’s deposition transcript regarding her job duties.
19 6. In or about September 2020, allegations emerged in the news media concerning a
20 former Human Resources Manager for the City, Rebecca Sherman, in connection with her
21 investigation of an EEO complaint by a Black transit worker. According to a local news report,
22 Ms. Sherman found that the worker had credible evidence supporting her claim of
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discrimination; Ms. Sherman alleged that when she went to Ms. Simon with new evidence in
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support of the employee’s claim, Ms. Simon responded that there “would not be a finding” in the
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employee’s favor, notwithstanding new evidence which Ms. Sherman deemed credible. A true
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and correct copy of said local news report is attached hereto as Exhibit C. (10/2/2020 article)
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7. Thereafter, Ms. Sherman allegedly concocted a bogus settlement agreement
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between the City and the employee and forged her supervisors’ signatures on the fake agreement.
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DECLARATION OF MOLLY F. DURKIN IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL FURTHER REPONSES TO SPECIAL INTERROGATORIES
1 She then confessed to these actions in a letter to the City dated September 11, 2020. After these
2 allegations were made public, the City’s Director of Human Resources, Micki Callahan,
3 resigned, and Ms. Simon went on a leave of absence for unspecified reasons. The City
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Attorney’s office has confirmed that it is undertaking an investigation into these allegations but
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would not disclose its scope. See Exhibit C.
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8. In another article regarding these events, it was reported that representatives from
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multiple City departments told news reporters that complaints they submitted to the Department
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of Human Resources on behalf of workers alleging discrimination “were neutered to merely
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indicate discontent.” According to the article, one departmental HR professional alleged that “A
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complaint about not getting a job because of race or discrimination would be categorized as a
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‘work assignment issue.’ And then not get addressed.” A true and correct copy of said local
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news report is attached hereto as Exhibit D. (9/28 article)
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9. Defendant’s responses to Special Interrogatories 73, 74, 77, 78, 81, 82, 85, and 86
15 reveal that the City’s DHR administratively closed, without investigation, nearly all complaints
16 based on sexual orientation it received from employees of SFPD during the years 2016-2019:
17 • In 2016, the City administratively closed (i.e., without any investigation) 17 of the 19
18 EEO complaints it received from SFPD employees alleging discrimination, harassment,
19 or discrimination on the basis of sexual orientation;
20 • In 2017, the City administratively closed (i.e.,without any investigation) 23 of the 24
21 EEO complaints it received from SFPD employees alleging discrimination, harassment,
22 or discrimination on the basis of sexual orientation;
23 • In 2018, the City administratively closed (i.e., without any investigation) all 16 of the 16
24 EEO complaints it received from SFPD employees alleging discrimination, harassment,
25 or discrimination on the basis of sexual orientation; and
26 • In 2019, the City administratively closed (i.e., without any investigation) 8 of the 12 EEO
27 complaints it received from SFPD employees alleging discrimination, harassment, or
28 discrimination on the basis of sexual orientation.
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DECLARATION OF MOLLY F. DURKIN IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL FURTHER REPONSES TO SPECIAL INTERROGATORIES
1 Attached hereto as Exhibit E is a true and correct copy of Defendant’s Responses to Plaintiff’s
2 Special Interrogatories (Set Five).
3 MEET AND CONFER EFFORTS
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10. On September 22, 2020 Plaintiff propounded Special Interrogatories (Set Five) on
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the City, including Special Interrogatories 75, 76, 79, 80, 83, 84, 87, and 88. A true and correct
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copy Plaintiff’s Special Interrogatories (Set Five) is attached hereto as Exhibit F.
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11. Interrogatories 75, 79, 83, and 87 ask the City to state the total number of EEO
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complaints received by the EEO Division from all employees who worked for the City and
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County of San Francisco in the years 2016, 2017, 2018, and 2019, respectively. Interrogatories
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76, 80, 84, and 88 ask the City to state how many of said EEO complaints were “administratively
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closed” in each of the respective years.
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12. On October 26, 2020, Defendant served its responses to Plaintiff’s Special
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Interrogatories (Set Five). Defendant objected to Special Interrogatories 75, 76, 79, 80, 83, 84,
15 87, and 88, without providing substantive responses, on the following grounds: vague and
16 ambiguous with respect to the meaning and scope of the term “EEO complaints” and
17 “administratively closed” (with respect to Special Interrogatories 76, 80, 84, and 88); overbroad,
18 unduly burdensome, and intended solely to harass the City; and seeks information that is neither
19 relevant nor reasonably calculated to lead to the discovery of admissible evidence. Cal. Code
20 Civ. Proc. § 2017.010; EEO complaints from employees outside of SFPD and EEO complaints
21 that do not allege retaliation or harassment, or discrimination based on sexual orientation are not
22 relevant to this lawsuit. A true and correct copy of Defendant’s response is attached hereto as
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Exhibit E.
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13. On November 24, 2020, Plaintiff’s counsel wrote to defense counsel requesting
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supplemental responses, and seeking a response by December 3, 2020. A true and correct copy
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of this correspondence dated November 24, 2020 is attached hereto as Exhibit G.
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DECLARATION OF MOLLY F. DURKIN IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL FURTHER REPONSES TO SPECIAL INTERROGATORIES
1 14. Defendant’s counsel sought an extension to respond to the letter and agreed to
2 extend Plaintiff’s motion to compel deadline to December 21, 2020. A true and correct copy of
3 this email correspondence, dated December 1, 2020, is attached hereto as Exhibit H.
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15. Defendant then responded to Plaintiff’s letter on December 9, 2020, indicating
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that it stood by its objections and that it would not supplement its responses to Special
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Interrogatories 75, 76, 79, 80, 83, 84, 87, and 88. A true and correct copy of this correspondence
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dated December 9, 2020 is attached hereto as Exhibit I.
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16. On December 15, 2020, Plaintiff’s counsel sent an additional meet and confer
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email to the City indicating his intention to move to compel further responses unless the City
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wished to further meet and confer. A true and correct copy of this correspondence dated
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December 15, 2020 is attached hereto as Exhibit J. Defendant did not respond to this letter.
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Plaintiff then requested Defendant’s counsel’s availability for a hearing in January, and
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Defendant’s counsel indicated they were generally available in January with the exception of
15 three dates.
16 LEGAL ARGUMENT
17 17. I have reviewed Defendant’s document production in this case and the term “EEO
18 Complaints” has been used in City-wide presentations, bulletins, and memos. For instance, the
19 term was used in the City-wide presentation produced by Defendant in this case, “How to
20 Identify and Prevent Workplace Harassment,” which was conducted by the City Attorney’s
21 Office and Department of Human Resources. It was also used in the SFPD’s Department
22 Bulletin produced by Defendant titled “EEO Complaint Procedure,” dated 7/5/16. The term is
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used among City and SFPD employees in memoranda produced by Defendant, for example, by
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Plaintiff’s supervisor Sergeant Maria Ciriaco, Sergeant Dennis Toomer of SFPD Internal Affairs,
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and Inspector Lloyd Lew of the SFPD EEO Unit.
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18. The closure letter Plaintiff received from Human Resources Director Micki
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Callahan states that his EEO complaint resulted in an “administrative closure” because “the
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DECLARATION OF MOLLY F. DURKIN IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL FURTHER REPONSES TO SPECIAL INTERROGATORIES
1 allegations were insufficient to raise an inference of harassment or retaliation” – i.e.,the City
2 determined that it would “not investigate and [] administratively close the complaint.”
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I make the forgoing statement under penalty of perjury of the laws of the State of
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California and this declaration is executed this 21st day of December 2020, in Los Angeles,
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California.
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MOLLY F. DURKIN
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DECLARATION OF MOLLY F. DURKIN IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL FURTHER REPONSES TO SPECIAL INTERROGATORIES
Exhibit A
Exhibit B
Page 1
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
---oOo---
BRENDAN MANNIX,
Plaintiff,
vs. No. CGC-18-568967
CITY AND COUNTY OF SAN
FRANCISCO; and DOES
1 through 10, inclusive,
Defendants.
_____________________________//
ZOOM DEPOSITION OF LINDA SIMON
September 28, 2020
Reported by:
Bridget M. Mattos, CSR No. 11410
LINDA SIMON
September 28, 2020
Page 2
1 I N D E X
2 DEPOSITION OF LINDA SIMON
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4 EXAMINATION BY: PAGE
5 MR. ORGAN 5
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8 E X H I B I T S
9 PAGE
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11 Exhibit 102 DFEH Printout 70
12 Exhibit 103 nine-page DFEH document 74
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Bridget Mattos & Associates
www.bmareporting.com
LINDA SIMON
September 28, 2020
Page 3
1 A P P E A R A N C E S
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3 FOR PLAINTIFF:
4 CALIFORNIA CIVIL RIGHTS LAW GROUP
5 BY: LAWRENCE A. ORGAN, ATTORNEY AT LAW
6 332 San Anselmo Avenue
7 San Anselmo, California 94960
8 (415) 453-4740
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10 FOR DEFENDANT:
11 OFFICE OF THE CITY ATTORNEY
12 CITY AND COUNTY OF SAN FRANCISCO
13 BY: ROSE DARLING, DEPUTY CITY ATTORNEY
14 1390 Market Street, 7th Floor
15 San Francisco, California 94102
16 (415) 554-3800
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Bridget Mattos & Associates
www.bmareporting.com
LINDA SIMON
September 28, 2020
Page 4
1 BE IT REMEMBERED that, pursuant to
2 Notice of Taking Deposition, and on September 28,
3 2020, commencing at the hour of 1:04 p.m., I, BRIDGET
4 M. MATTOS, CSR No. 11410, reported the following
5 proceedings remotely via Zoom:
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7 LINDA SIMON,
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9 called as a witness by Plaintiff, who, having been
10 duly sworn, was examined and testified as is
11 hereinafter set forth.
12 ---oOo---
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Bridget Mattos & Associates
www.bmareporting.com
LINDA SIMON
September 28, 2020
Page 14
1 just going to call the director of the EEO division,
2 even though I know you've got other responsibilities.
3 As the director of the EEO division, what are
4 your job duties?
5 A. My job duties are to review all complaints of
6 discrimination, harassment, retaliation, failure to
7 accommodate, denial of reasonable accommodation, that
8 are filed by employees of the City, by applicants, by
9 contractors, and by interns and volunteers.
10 Q. Okay. Keep going. Sorry.
11 A. I also have responsibility for the City's
12 reasonable accommodation process for all of our
13 employees, applicants, interns -- or actually, interns
14 not, because we won't place them in positions that --
15 if an employee requests reasonable accommodation in a
16 department, and that department cannot accommodate
17 that employee in any position, then they submit that
18 request to our division, and we attempt to find a
19 position for that employee that meets the medical
20 restrictions, in any of the 50-plus departments that
21 we have in the City.
22 Q. Okay.
23 A. I also have responsibility for the leave
24 programs. We have many protections, as far as federal
25 laws and state laws regarding leaves and FMLA, veteran
Bridget Mattos & Associates
www.bmareporting.com
LINDA SIMON
September 28, 2020
Page 17
1 passed the bar in California.
2 Q. Are any of the other people -- Janie White,
3 Kimberly Love or Rickie DeWit -- attorneys?
4 A. Kimberly Love is, and I don't recall right
5 now if Janie White is.
6 Q. How many people are on your EEO division
7 staff, total?
8 A. I could count them right now, because I can't
9 think. I can look at an org chart and count them, if
10 you'll give me a minute.
11 Q. Sure.
12 A. 20.
13 Q. So there's an org chart for the EEO division?
14 A. There is.
15 Q. And who do you report to?
16 A. Micki Callahan, the director of human
17 resources.
18 Q. Does Micki Callahan have any role in deciding
19 which investigations go forward and which
20 investigations do not?
21 A. Micki Callahan may have, yes, because she
22 makes the final determination.
23 Q. Do you discuss with Micki Callahan which
24 cases you decide to investigation and which ones you
25 don't?
Bridget Mattos & Associates
www.bmareporting.com
LINDA SIMON
September 28, 2020
Page 18
1 A. Micki Callahan is the one who issues the
2 decisions on all cases, and so in her review of those
3 decisions, she may discuss with me why she believes
4 that we might want to reconsider or discuss, continue
5 to discuss a case.
6 Q. Okay. And then do you make the decision as
7 to whether or not the EEO division is going to
8 investigate a claim or whether or not there's going to
9 be an administrative -- what is it? Administrative
10 closing, is that what you call it?
11 A. Closure.
12 Q. Closure. Yeah.
13 MS. DARLING: Objection; vague.
14 MR. ORGAN: Let me try the question again.
15 Q. Who makes the decision as to whether a case
16 is going to be administratively closed?
17 A. The final decision would rest with the
18 director of human resources.
19 Q. Okay. And then who makes the recommendation
20 to the director of human resources whether or not a
21 case should be administratively closed or not?
22 A. That would be me as the director of EEO.
23 Q. And hadn't Micki Callahan designated you as
24 the correct official to handle investigations?
25 MS. DARLING: Objection; vague.
Bridget Mattos & Associates
www.bmareporting.com
LINDA SIMON
September 28, 2020
Page 25
1 Q. Who is that?
2 A. Matthew Valdez.
3 Q. Okay. So if I made the request that said,
4 you know, please provide me with all fiscal year
5 reports from, let's say, July 1st of 2016 to June 30th
6 of 2020, that would be something that someone should
7 be able to find; is that right? Hopefully,
8 Mr. Valdez.
9 A. Well, he may -- that information is in our
10 database for reporting purposes.
11 Q. How difficult is it to get the information
12 printed out from the database?
13 MS. DARLING: Objection; calls for
14 speculation, vague.
15 THE WITNESS: I have no idea. I don't run
16 reports. That's not my level. I just -- I'm doing
17 other things, not running reports. I'm reviewing
18 them, but not running reports.
19 MR. ORGAN: Q. I'm sure you have a lot to
20 do, other than run reports. So I appreciate that.
21 And in terms -- the information that's
22 collected includes a number of complaints filed versus
23 number of investigations you do; is that correct?
24 A. Our database contains information on
25 complaints filed and the determination of those
Bridget Mattos & Associates
www.bmareporting.com
LINDA SIMON
September 28, 2020
Page 26
1 complaints. Class action kind of complaints.
2 Q. Do you have information on the number of
3 investigations that are actually conducted by your EEO
4 investigators?
5 A. I don't have the number off the top of my
6 head, no.
7 Q. But that might -- is that something that
8 should be in the database too?
9 A. Yes.
10 Q. And what -- do you have an idea of what
11 percentage of complaints are administratively closed
12 versus the number that are actually investigated?
13 MS. DARLING: Objection; vague.
14 THE WITNESS: You know, every year it
15 changes, obviously, and so I don't have those reports
16 in front of me to be able to give you that
17 information. I don't know.
18 MR. ORGAN: Q. But you make a notation in
19 the data -- or someone, not you. I know you don't
20 handle the information. Someone makes a notation in
21 the database when a complaint, an EEO complaint, is
22 administratively closed; is that correct?
23 A. Last action on a complaint, yes.
24 Q. Are there any kind of guidelines, in terms of
25 how you determine whether or not a complaint, an EEO
Bridget Mattos & Associates
www.bmareporting.com
LINDA SIMON
September 28, 2020
Page 130
1 State of California )
2 County of Marin )
3
4 I, Bridget M. Mattos, hereby certify
5 that the witness in the foregoing deposition was by me
6 duly sworn to testify to the truth, the whole truth
7 and nothing but the truth in the within entitled
8 cause; that said deposition was taken at the time and
9 place herein named; that the deposition is a true
10 record of the witness's testimony as reported to the
11 best of my ability by me, a duly certified shorthand
12 reporter and disinterested person, and was thereafter
13 transcribed under my direction into typewriting by
14 computer; that the witness was given an opportunity to
15 read, correct and sign the deposition.
16 I further certify that I am not
17 interested in the outcome of said action nor connected
18 with or related to any of the parties in said action
19 nor to their respective counsel.
20 IN WITNESS WHEREOF, I have hereunder
21 subscribed my hand on September 28, 2020.
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___________________________________
23 BRI