Preview
1
A PROFESSIONAL CORPORATION
2
Derek J. Haynes, SBN 264621
3 Marc A. Rodriguez, SBN 329938 2/18/2021
350 University Avenue, Suite 200
4 Sacramento, California 95825
TEL: 916.929.1481
5 FAX: 916.927.3706
6 Attorneys for Defendants
7 THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY
and CHICO STATE ENTERPRISES
8 Exempt From Filing Fees Pursuant to Government Code § 6103
9
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
10
11
BROOKS O’BRIEN, Case No. 20CV01050
12
Plaintiff, DEFENDANT’S RESPONSE TO
13
PLAINTIFF’S SEPARATE STATEMENT
14 v. IN SUPPORT OF PLAINTIFF’S MOTION
TO COMPEL DEFENDANT CHICO
15 THE BOARD OF TRUSTEES OF THE STATE ENTERPRISES TO PROVIDE
CALIFORNIA STATE UNIVERSITY, FURTHER VERIFIED RESPONSES TO
16
CHICO STATE ENTERPRISES, and PLAINTIFF'S SPECIAL
17 DOES 1 through 10, inclusive. INTERROGATORIES, SET 2, NOS. 10, 16,
18, & 19
18 Defendants.
19 Date: March 3, 2021
Time: 9:00 a.m.
20 Dept: 6
_____________________________________/
21 Complaint Filed: 05/20/20
22
23
INTERROGATORY NO. 10
24
SPECIAL INTERROGATORY NO. 10:
25
Please identify what specific responsibilities, duties or assignments were changed for any
26
employee(s) affected by the reorganization by name of the employee, position and how the duties
27
changed.
28
{02362448.DOCX} 1
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION
TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO
PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16,
18, & 19
1 RESPONSE TO SPECIAL INTERROGATORY NO. 10:
2 Objection. This request is overbroad and unduly burdensome given Defendant employs
3 approximately 1,300 individuals.
4 PLAINTIFF’S ARGUMENT FOR WHY A FURTHER RESPONSE SHOULD BE ORDERED:
5 Plaintiff Brooks O’Brien (“O’Brien”) worked as a Grant/Contract Analyst II for the Board of
6 Trustees of the California State University and Chico State Enterprises (“CSE”; formerly the CSU,
7 Chico Research Foundation) from approximately August 2005 until her unlawful termination on July 8,
8 2019, disguised as a “layoff”. She has brought claims of disability discrimination, age discrimination,
9 retaliation for taking medical leave, and failure to prevent the discrimination and retaliation. O’Brien
10 seeks discovery to prove the articulated reason for O’Brien’s lay off was a pretext to discrimination and
11 retaliation which is required to prove the claims. See Yanowitz v. L’Oreal U.S.A. Inc (2005) 36 Cal 4th
12 1028, 1042.
13 During O’Brien’s meet and confer letter with Defendant on December 21, 2020, she agreed to
14 limit the interrogatory to the Post Award and the Admin sections of Defendant formerly known as
15 RESP. On September 17, 2020, O’Brien conducted the deposition of the Person Most Knowledgeable
16 regarding the Reorganization of CSE, which included the reasons for the reorganization and the effect it
17 would have on employees. (Telfer Decl. ¶ 8, Exh. 4 - Excerpts from Deposition of Russell Wittmeier).
18 He claimed a reduction in force was required due to a decrease in work for certain employees. (Exh. 4,
19 38:12-38:24; 53:13-54:19). Further, he specifically listed the number of employees affected as “one
20 full-time and three part-time individuals” in IT, “two within Post Award”, and “also individuals that
21 worked within Pre Award and Contracts”. (Exh. 4, 57:8-57:25). Therefore, the interrogatory is not
22 overbroad or burdensome since it involved the work of less than 10 employees. Defendant has failed to
23 provide any substantive response, despite O’Brien limiting the request to the Post Award and the Admin
24 sections formerly known as RESP. Defendant CSE was able to answer Special Interrogatory No. 6 with
25 the information in its Amended Responses. (Exh. 6, pg. 3). There is no reason why it could not do so
26 here. Defendant is not showing good faith participation in the Discovery process.
27 DEFENDANT’S RESPONSE:
28 Plaintiff completely mischaracterizes the events leading up to her Motion. She claims she agreed
{02362448.DOCX} 2
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION
TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO
PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16,
18, & 19
1 to limit Special Interrogatory No. 10 to just the Post-award and administration department. (Plaintiff’s
2 Separate Statement, p. 2:10-12) Plaintiff made no such agreement with Defendant. In fact, Defendant
3 offered that limitation and Plaintiff refused, choosing instead to file this Motion.
4 Plaintiff claims she sent a December 21, 2020 meet a confer letter making that offer. That is
5 simply is not true. Plaintiff never offered to limit her Interrogatory to just the Post-Award and
6 Administration Departments. (Haynes Decl. ¶ 4; Plaintiff’s Exhibit (“Ex.”) 2)
7 Instead, it was Defendant who offered to provide amended responses if Plaintiff agreed to
8 narrow the request. (Id., at ¶ 5; Plaintiff’s Ex. 3) However, Plaintiff never responded to that offer and
9 instead just filed this Motion, wasting the Court’s and the parties’ time. (Ibid.)
10 As stated, Plaintiff’s request is overbroad and unduly burdensome to the point of oppression.
11 Defendant went through a massive reorganization in July 2019, in which several of its units were either
12 restructured or eliminated. (Declaration of Russell Wittmeier (“Wittmeier Decl.”) ¶ 3) The
13 reorganization resulted in multiple layoffs, the outsourcing of several functions and the appointment of a
14 new CEO. (Ibid.) Consequently, reporting structures also changed. (Ibid.)
15 Defendant employs over 1,300 employees. (Id., at ¶ 4) A request requiring Defendant to identify
16 how every job duty changed for all 1,300 employees would be a massive undertaking. (Ibid.) 1 As stated,
17 Defendant would have to interview every single employee to determine whether the reorganization
18 caused any changes in their duties, including former employees that were employed at the time of the
19 reorganization. (Ibid.) Such a task would require hundreds, if not thousands, of hours of work. (Ibid.)
20 The overwhelming majority of the 1,300 employees did not work in Plaintiff’s department. (Id.,
21 ¶ 5) Plaintiff has failed to show how detailing every change in responsibilities, duties and assignments
22 for all 1,300 employees, including those outside of her Department, would have any bearing on this
23 lawsuit. (Ryan v. Superior Court In and For Los Angeles County (1960) 186 Cal.App.2d 813, 817
24 (holding that if an interrogatory is so framed as to require disclosure of relevant as well as irrelevant
25 matter, the trial court in exercise of its discretion may refuse to order the interrogatory answered)).
26
1
It is important to note that Plaintiff’s argument infers that she is only seeking information regarding the individuals who
27 were laid-off.That, however, misstates the Interrogatory. The Interrogatory seeks information regarding how all
responsibilities, duties or assignments were changed for “any employee(s) affected by the reorganization,” not just changes
28 resulting from the layoffs.
{02362448.DOCX} 3
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION
TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO
PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16,
18, & 19
1 Accordingly, Plaintiff’s motion as to this interrogatory should be denied.
2 INTERROGATORY NO. 16
3 SPECIAL INTERROGATORY NO. 16:
4 Please provide the balance of the Post-Retirement Benefit Fund for each month in 2019
5 RESPONSE TO SPECIAL INTERROGATORY NO. 16:
6 Objection. This request is vague and ambiguous, likely due to some misunderstanding of the
7 Post-Retirement Benefits available. CSE simply pays $200/month towards a qualifying retiree’s medical
8 benefits on the condition the retiree elects to enroll in CSE’s retirement medical plan. That contribution
9 increases to $400/month if the qualifying retiree’s spouse also elects coverage under CSE’s retirement
10 medical plan.
11 PLAINTIFF’S ARGUMENT FOR WHY A FURTHER RESPONSE SHOULD BE ORDERED:
12 The two people laid off during the reorganization from Post Award were O’Brien and Iris
13 Hardman, both of whom would have received medical retirement benefits that the other employees
14 would not receive had they not been terminated, because they were hired prior to January 1, 2006. (Ex.
15 4 - Excerpts from Deposition of Wittmeier, 235:4-236:3). The meeting minutes for the Board of
16 Directors from late 2017 identify this Post Retirement Benefit Fund as a potential source of revenue for
17 a shortfall in other areas of the organization. (Telfer Decl. ¶ 9, Exh. 5, pg. 5-6). Since this fund exists,
18 there will be documents regarding its balance for each month in 2019. This information is necessary
19 because it may have been Defendant’s motivation in laying off the two senior employees.
20 The interrogatory asks specifically for the balance of the Post-Retirement Benefit Fund for each
21 month in 2019. Defendant is evading the answer by suggesting the request is asking about Plaintiff’s
22 monthly benefit. We are clearly asking for the cumulative balance of the Post-Retirement Benefit Fund
23 for each month in 2019, which the Finance and Investment Committee found to be large enough to cover
24 shortfalls in other areas of the organization’s finances. If there is evidence Defendant allocated this
25 Fund to other areas, then there would be substantial motivation to terminate Plaintiff who would have
26 substantially benefitted from this Post-Retirement Fund when she retired.
27 DEFENDANT’S RESPONSE:
28 Defendant objected to this request as vague and ambiguous because there is no “balance of the
{02362448.DOCX} 4
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION
TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO
PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16,
18, & 19
1 Post-Retirement Health Benefit Fund.” Defendant repeatedly explained during the meet and confer
2 process that it simply pays $200 per month towards a qualifying retiree’s medical benefits on the
3 condition that the retiree elects to enroll in Defendant’s retirement benefit plan (as opposed to a private
4 plan). (Plaintiff’s Ex. 3)
5 Plaintiff insists that a fund must exist with a balance based on her misunderstanding of the
6 meeting minutes for the Board of Directors from December 2017 in which the Board acknowledged that
7 “excess funds had accumulated beyond the requirements for the liability of post-retirement health
8 benefits.” (Plaintiff’s Separate Statement, p. 3:6-21; Plaintiff’s Ex. 5)
9 The Board’s reference to the term “funds,” refers to an actuarial valuation that is calculated by a
10 third-party vendor to determine Defendant’s potential future liability towards post-retirement health
11 benefits. (Wittmeier Decl. ¶ 8) In other words, Defendant contracts with a third-party vendor to project
12 how much money Defendant could have to pay to cover the future costs associated with post-retirement
13 health benefits. (Ibid.) This valuation is done each year for budgeting purposes to account for the
14 fluctuations in the employee pool. (Ibid.) This figure can go up or down each year depending on a
15 variety of factors. (Ibid.)
16 In late 2017 it was determined that the projections for how much Defendant would spend on
17 post-retirement health benefits were too high for 2018. (Id., at ¶ 9) Thus, money that was earmarked for
18 paying the $200/month towards those benefits was available to use for other projects. (Ibid.) However,
19 as we have repeatedly explained to Plaintiff’s counsel, this does not mean Defendant has some fund or
20 account that contains money designated for post-retirement health benefits. (Ibid.) It simply means the
21 accounting was off in CSE’s general operating account due to the fluctuation in the actuarial for 2018.
22 (Ibid.) Plaintiff’s assertion to the contrary renders this request unintelligible.
23 Further, the actuarial valuation for 2019 is public record and can be accessed by going to
24 Defendant’s website. (Id., at ¶ 10) The valuation was also provided to her in response to a separate
25 request. (Ex. A)
26 In sum, there is no fund or account that holds money specifically for post-retirement benefits.
27 Thus, Defendant cannot respond to Plaintiff’s Interrogatory seeking information regarding the balance in
28 any such fund or account. Therefore, Plaintiff’s motion as to this interrogatory should be denied.
{02362448.DOCX} 5
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION
TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO
PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16,
18, & 19
1 INTERROGATORY NO. 18
2 SPECIAL INTERROGATORY NO. 18:
3 Please identify the cost savings to Defendant by laying off Brooks O'Brien in present expense.
4 RESPONSE TO SPECIAL INTERROGATORY NO. 18:
5 Objection. Defendant objects to this request to the extent it seeks premature disclosure of expert
6 opinion.
7 PLAINTIFF’S ARGUMENT FOR WHY A FURTHER RESPONSE SHOULD BE ORDERED:
8 When determining how to cut costs in this reorganization, there would be an evaluation done to
9 determine the cost saving if Plaintiff was to be laid off. If to date Defendant has not calculated that
10 savings, then it should state this in its response.
11 Plaintiff is not asking for an expert opinion. Rather there should be documents supporting
12 Defendant’s articulated business reason for the reorganization and the layoff, and logically, a calculation
13 of the cost savings from terminating Plaintiff, which ultimately occurred, must have been done.
14 DEFENDANT’S RESPONSE:
15 This request inherently requires expert opinion because it requires calculations that a lay witness
16 cannot make. Specifically, Plaintiff asks Defendant to discount a future dollar figure to the “present
17 expense” or “present value.” Lay witnesses do not have the ability to make those calculations.
18 Plaintiff’s request specifically asks Defendant to calculate and determine the total amount (at
19 present value) it saved as a result of Plaintiff’s layoff. That would be a horribly complicated calculation
20 even without discounting it to a present value. The calculation would involve money Defendant did not
21 have to spend towards Plaintiff’s wages, benefits, infrastructure costs (i.e. office space, computers,
22 internet, telephone, supplies, etc.) and costs for support staff. Even Plaintiff’s wages alone would be
23 difficult to calculate given she was an hourly employee whose hours fluctuated week to week.
24 Defendant would have to speculate regarding how many hours Plaintiff would have worked from the
25 date she way laid-off until today’s date. Defendant would also have to account for any cost increases in
26 other areas, including overtime spent by other employees to cover Plaintiff’s former responsibilities. No
27 lay witness can perform all of those calculations and then discount them to present value.
28 Accordingly, Plaintiff’s motion as to this interrogatory should be denied.
{02362448.DOCX} 6
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION
TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO
PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16,
18, & 19
1 INTERROGATORY NO. 19
2 SPECIAL INTERROGATORY NO. 19:
3 Please identify the cost savings to Defendant by laying off Brooks O'Brien in future anticipated
4 expense.
5 RESPONSE TO SPECIAL INTERROGATORY NO. 19:
6 Objection. Defendant objects to this request to the extent it seeks premature disclosure of expert
7 opinion.
8 PLAINTIFF’S ARGUMENT FOR WHY A FURTHER RESPONSE SHOULD BE ORDERED:
9 When determining how to cut costs in this reorganization, there would be an evaluation done to
10 determine the cost saving if Plaintiff was to be laid off. If to date Defendant has not calculated that
11 savings, then it should state this in its response.
12 Plaintiff is not asking for an expert opinion. Rather there should be documents supporting
13 Defendant’s articulated business reason for the reorganization and the layoff, and logically, a calculation
14 of the cost savings from terminating Plaintiff, which ultimately occurred, must have been done
15 DEFENDANT’S RESPONSE:
16 This request is also the subject of expert opinion. This request requires Defendant to make
17 calculations a lay witness cannot make. The figure would then need to be discounted to present value,
18 requiring Defendant to calculate the appropriate interest and inflation rate.
19 To be clear, Plaintiff is asking Defendant to calculate how much it saved in future costs resulting
20 from Plaintiff’s layoff. To make that calculation, Defendant would have to retain an expert to offer an
21 opinion regarding Plaintiff’s work-life expectancy, which is unique to Plaintiff given her medical
22 conditions. It goes without saying that Defendant cannot calculate how much Plaintiff would have
23 earned throughout her employment if it does not know when she was going to retire.
24 The calculation would involve money Defendant does not have to spend towards Plaintiff’s
25 future wages, benefits, infrastructure costs (i.e. office space, computers, internet, telephone, supplies,
26 etc.) and costs for support staff. Calculating Plaintiff’s future wages alone would be difficult given she
27 was an hourly employee whose hours fluctuated week to week. Defendant would also have to account
28 for any cost increases in other areas, including overtime spent by other employees to cover Plaintiff’s
{02362448.DOCX} 7
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION
TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO
PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16,
18, & 19
1 former responsibilities. No lay witness can perform all of those calculations and then discount them to
2 present value.
3 Accordingly, Plaintiff’s motion as to this interrogatory should be denied.
4
5 Dated: February 18, 2021 PORTER SCOTT
A PROFESSIONAL CORPORATION
6
7
D
By __________________________________
8 Derek J. Haynes
Marc A. Rodriguez
9 Attorneys for Defendants
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{02362448.DOCX} 8
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION
TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO
PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16,
18, & 19
Brooks O’Brien v. The Board of Trustees of the California State University, et al.
1
Butte County Superior Court Case No. 20CV01050
2
PROOF OF SERVICE
3
At the time of service, I was over 18 years of age and not a party to this action. My business
4 address is 350 University Avenue, Suite 200, Sacramento, California 95825.
5 On the date below, I served the following document: DEFENDANT’S RESPONSE TO
6 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER
7 VERIFIED RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10,
16, 18, & 19
8
9 BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices.
I am readily familiar with this business’ practice for collecting and processing correspondence for
10 mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the
ordinary course of business with the United States Postal Service, in a sealed envelope with postage
11 fully prepaid.
BY PERSONAL SERVICE: I caused such document to be personally delivered to the person(s)
12 addressed below.
BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an
13
overnight delivery carrier and addressed to the person(s) listed below. I placed the envelope or package
14 for collection and overnight delivery at my office or a regularly utilized drop box of the overnight
delivery carrier.
15 BY ELECTRONIC SERVICE: By e-mailing the document(s) to the persons at the e-mail address(es)
listed. Due to a shelter-in-place order issued on account of the Covid-19 pandemic, this office will be
16 primarily working remotely, unable to send or receive physical mail as usual, and is therefore using only
electronic mail. No electronic message or other indication that the transmission was unsuccessful was
17 received within a reasonable time after the transmission.”
18
Jill P. Telfer
19 TELFER LAW
331 J Street, Suite 200
20 Sacramento, CA 95814
21 jtelfer@telferlaw.com
jchau@telferlaw.com
22 mguevara@telferlaw.com
cmurphy@telferlaw.com
23
24 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed at Sacramento, California on February 18, 2021.
25
26
___________________________________
27 Cindy A. Grandinetti
28
{02362448.DOCX} 9
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION
TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO
PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16,
18, & 19
Preview
1 A PROFESSIONAL CORPORATION 2 Derek J. Haynes, SBN 264621 3 Marc A. Rodriguez, SBN 329938 2/18/2021 350 University Avenue, Suite 200 4 Sacramento, California 95825 TEL: 916.929.1481 5 FAX: 916.927.3706 6 Attorneys for Defendants 7 THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY and CHICO STATE ENTERPRISES 8 Exempt From Filing Fees Pursuant to Government Code § 6103 9 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 10 11 BROOKS O’BRIEN, Case No. 20CV01050 12 Plaintiff, DEFENDANT’S RESPONSE TO 13 PLAINTIFF’S SEPARATE STATEMENT 14 v. IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT CHICO 15 THE BOARD OF TRUSTEES OF THE STATE ENTERPRISES TO PROVIDE CALIFORNIA STATE UNIVERSITY, FURTHER VERIFIED RESPONSES TO 16 CHICO STATE ENTERPRISES, and PLAINTIFF'S SPECIAL 17 DOES 1 through 10, inclusive. INTERROGATORIES, SET 2, NOS. 10, 16, 18, & 19 18 Defendants. 19 Date: March 3, 2021 Time: 9:00 a.m. 20 Dept: 6 _____________________________________/ 21 Complaint Filed: 05/20/20 22 23 INTERROGATORY NO. 10 24 SPECIAL INTERROGATORY NO. 10: 25 Please identify what specific responsibilities, duties or assignments were changed for any 26 employee(s) affected by the reorganization by name of the employee, position and how the duties 27 changed. 28 {02362448.DOCX} 1 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16, 18, & 19 1 RESPONSE TO SPECIAL INTERROGATORY NO. 10: 2 Objection. This request is overbroad and unduly burdensome given Defendant employs 3 approximately 1,300 individuals. 4 PLAINTIFF’S ARGUMENT FOR WHY A FURTHER RESPONSE SHOULD BE ORDERED: 5 Plaintiff Brooks O’Brien (“O’Brien”) worked as a Grant/Contract Analyst II for the Board of 6 Trustees of the California State University and Chico State Enterprises (“CSE”; formerly the CSU, 7 Chico Research Foundation) from approximately August 2005 until her unlawful termination on July 8, 8 2019, disguised as a “layoff”. She has brought claims of disability discrimination, age discrimination, 9 retaliation for taking medical leave, and failure to prevent the discrimination and retaliation. O’Brien 10 seeks discovery to prove the articulated reason for O’Brien’s lay off was a pretext to discrimination and 11 retaliation which is required to prove the claims. See Yanowitz v. L’Oreal U.S.A. Inc (2005) 36 Cal 4th 12 1028, 1042. 13 During O’Brien’s meet and confer letter with Defendant on December 21, 2020, she agreed to 14 limit the interrogatory to the Post Award and the Admin sections of Defendant formerly known as 15 RESP. On September 17, 2020, O’Brien conducted the deposition of the Person Most Knowledgeable 16 regarding the Reorganization of CSE, which included the reasons for the reorganization and the effect it 17 would have on employees. (Telfer Decl. ¶ 8, Exh. 4 - Excerpts from Deposition of Russell Wittmeier). 18 He claimed a reduction in force was required due to a decrease in work for certain employees. (Exh. 4, 19 38:12-38:24; 53:13-54:19). Further, he specifically listed the number of employees affected as “one 20 full-time and three part-time individuals” in IT, “two within Post Award”, and “also individuals that 21 worked within Pre Award and Contracts”. (Exh. 4, 57:8-57:25). Therefore, the interrogatory is not 22 overbroad or burdensome since it involved the work of less than 10 employees. Defendant has failed to 23 provide any substantive response, despite O’Brien limiting the request to the Post Award and the Admin 24 sections formerly known as RESP. Defendant CSE was able to answer Special Interrogatory No. 6 with 25 the information in its Amended Responses. (Exh. 6, pg. 3). There is no reason why it could not do so 26 here. Defendant is not showing good faith participation in the Discovery process. 27 DEFENDANT’S RESPONSE: 28 Plaintiff completely mischaracterizes the events leading up to her Motion. She claims she agreed {02362448.DOCX} 2 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16, 18, & 19 1 to limit Special Interrogatory No. 10 to just the Post-award and administration department. (Plaintiff’s 2 Separate Statement, p. 2:10-12) Plaintiff made no such agreement with Defendant. In fact, Defendant 3 offered that limitation and Plaintiff refused, choosing instead to file this Motion. 4 Plaintiff claims she sent a December 21, 2020 meet a confer letter making that offer. That is 5 simply is not true. Plaintiff never offered to limit her Interrogatory to just the Post-Award and 6 Administration Departments. (Haynes Decl. ¶ 4; Plaintiff’s Exhibit (“Ex.”) 2) 7 Instead, it was Defendant who offered to provide amended responses if Plaintiff agreed to 8 narrow the request. (Id., at ¶ 5; Plaintiff’s Ex. 3) However, Plaintiff never responded to that offer and 9 instead just filed this Motion, wasting the Court’s and the parties’ time. (Ibid.) 10 As stated, Plaintiff’s request is overbroad and unduly burdensome to the point of oppression. 11 Defendant went through a massive reorganization in July 2019, in which several of its units were either 12 restructured or eliminated. (Declaration of Russell Wittmeier (“Wittmeier Decl.”) ¶ 3) The 13 reorganization resulted in multiple layoffs, the outsourcing of several functions and the appointment of a 14 new CEO. (Ibid.) Consequently, reporting structures also changed. (Ibid.) 15 Defendant employs over 1,300 employees. (Id., at ¶ 4) A request requiring Defendant to identify 16 how every job duty changed for all 1,300 employees would be a massive undertaking. (Ibid.) 1 As stated, 17 Defendant would have to interview every single employee to determine whether the reorganization 18 caused any changes in their duties, including former employees that were employed at the time of the 19 reorganization. (Ibid.) Such a task would require hundreds, if not thousands, of hours of work. (Ibid.) 20 The overwhelming majority of the 1,300 employees did not work in Plaintiff’s department. (Id., 21 ¶ 5) Plaintiff has failed to show how detailing every change in responsibilities, duties and assignments 22 for all 1,300 employees, including those outside of her Department, would have any bearing on this 23 lawsuit. (Ryan v. Superior Court In and For Los Angeles County (1960) 186 Cal.App.2d 813, 817 24 (holding that if an interrogatory is so framed as to require disclosure of relevant as well as irrelevant 25 matter, the trial court in exercise of its discretion may refuse to order the interrogatory answered)). 26 1 It is important to note that Plaintiff’s argument infers that she is only seeking information regarding the individuals who 27 were laid-off.That, however, misstates the Interrogatory. The Interrogatory seeks information regarding how all responsibilities, duties or assignments were changed for “any employee(s) affected by the reorganization,” not just changes 28 resulting from the layoffs. {02362448.DOCX} 3 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16, 18, & 19 1 Accordingly, Plaintiff’s motion as to this interrogatory should be denied. 2 INTERROGATORY NO. 16 3 SPECIAL INTERROGATORY NO. 16: 4 Please provide the balance of the Post-Retirement Benefit Fund for each month in 2019 5 RESPONSE TO SPECIAL INTERROGATORY NO. 16: 6 Objection. This request is vague and ambiguous, likely due to some misunderstanding of the 7 Post-Retirement Benefits available. CSE simply pays $200/month towards a qualifying retiree’s medical 8 benefits on the condition the retiree elects to enroll in CSE’s retirement medical plan. That contribution 9 increases to $400/month if the qualifying retiree’s spouse also elects coverage under CSE’s retirement 10 medical plan. 11 PLAINTIFF’S ARGUMENT FOR WHY A FURTHER RESPONSE SHOULD BE ORDERED: 12 The two people laid off during the reorganization from Post Award were O’Brien and Iris 13 Hardman, both of whom would have received medical retirement benefits that the other employees 14 would not receive had they not been terminated, because they were hired prior to January 1, 2006. (Ex. 15 4 - Excerpts from Deposition of Wittmeier, 235:4-236:3). The meeting minutes for the Board of 16 Directors from late 2017 identify this Post Retirement Benefit Fund as a potential source of revenue for 17 a shortfall in other areas of the organization. (Telfer Decl. ¶ 9, Exh. 5, pg. 5-6). Since this fund exists, 18 there will be documents regarding its balance for each month in 2019. This information is necessary 19 because it may have been Defendant’s motivation in laying off the two senior employees. 20 The interrogatory asks specifically for the balance of the Post-Retirement Benefit Fund for each 21 month in 2019. Defendant is evading the answer by suggesting the request is asking about Plaintiff’s 22 monthly benefit. We are clearly asking for the cumulative balance of the Post-Retirement Benefit Fund 23 for each month in 2019, which the Finance and Investment Committee found to be large enough to cover 24 shortfalls in other areas of the organization’s finances. If there is evidence Defendant allocated this 25 Fund to other areas, then there would be substantial motivation to terminate Plaintiff who would have 26 substantially benefitted from this Post-Retirement Fund when she retired. 27 DEFENDANT’S RESPONSE: 28 Defendant objected to this request as vague and ambiguous because there is no “balance of the {02362448.DOCX} 4 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16, 18, & 19 1 Post-Retirement Health Benefit Fund.” Defendant repeatedly explained during the meet and confer 2 process that it simply pays $200 per month towards a qualifying retiree’s medical benefits on the 3 condition that the retiree elects to enroll in Defendant’s retirement benefit plan (as opposed to a private 4 plan). (Plaintiff’s Ex. 3) 5 Plaintiff insists that a fund must exist with a balance based on her misunderstanding of the 6 meeting minutes for the Board of Directors from December 2017 in which the Board acknowledged that 7 “excess funds had accumulated beyond the requirements for the liability of post-retirement health 8 benefits.” (Plaintiff’s Separate Statement, p. 3:6-21; Plaintiff’s Ex. 5) 9 The Board’s reference to the term “funds,” refers to an actuarial valuation that is calculated by a 10 third-party vendor to determine Defendant’s potential future liability towards post-retirement health 11 benefits. (Wittmeier Decl. ¶ 8) In other words, Defendant contracts with a third-party vendor to project 12 how much money Defendant could have to pay to cover the future costs associated with post-retirement 13 health benefits. (Ibid.) This valuation is done each year for budgeting purposes to account for the 14 fluctuations in the employee pool. (Ibid.) This figure can go up or down each year depending on a 15 variety of factors. (Ibid.) 16 In late 2017 it was determined that the projections for how much Defendant would spend on 17 post-retirement health benefits were too high for 2018. (Id., at ¶ 9) Thus, money that was earmarked for 18 paying the $200/month towards those benefits was available to use for other projects. (Ibid.) However, 19 as we have repeatedly explained to Plaintiff’s counsel, this does not mean Defendant has some fund or 20 account that contains money designated for post-retirement health benefits. (Ibid.) It simply means the 21 accounting was off in CSE’s general operating account due to the fluctuation in the actuarial for 2018. 22 (Ibid.) Plaintiff’s assertion to the contrary renders this request unintelligible. 23 Further, the actuarial valuation for 2019 is public record and can be accessed by going to 24 Defendant’s website. (Id., at ¶ 10) The valuation was also provided to her in response to a separate 25 request. (Ex. A) 26 In sum, there is no fund or account that holds money specifically for post-retirement benefits. 27 Thus, Defendant cannot respond to Plaintiff’s Interrogatory seeking information regarding the balance in 28 any such fund or account. Therefore, Plaintiff’s motion as to this interrogatory should be denied. {02362448.DOCX} 5 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16, 18, & 19 1 INTERROGATORY NO. 18 2 SPECIAL INTERROGATORY NO. 18: 3 Please identify the cost savings to Defendant by laying off Brooks O'Brien in present expense. 4 RESPONSE TO SPECIAL INTERROGATORY NO. 18: 5 Objection. Defendant objects to this request to the extent it seeks premature disclosure of expert 6 opinion. 7 PLAINTIFF’S ARGUMENT FOR WHY A FURTHER RESPONSE SHOULD BE ORDERED: 8 When determining how to cut costs in this reorganization, there would be an evaluation done to 9 determine the cost saving if Plaintiff was to be laid off. If to date Defendant has not calculated that 10 savings, then it should state this in its response. 11 Plaintiff is not asking for an expert opinion. Rather there should be documents supporting 12 Defendant’s articulated business reason for the reorganization and the layoff, and logically, a calculation 13 of the cost savings from terminating Plaintiff, which ultimately occurred, must have been done. 14 DEFENDANT’S RESPONSE: 15 This request inherently requires expert opinion because it requires calculations that a lay witness 16 cannot make. Specifically, Plaintiff asks Defendant to discount a future dollar figure to the “present 17 expense” or “present value.” Lay witnesses do not have the ability to make those calculations. 18 Plaintiff’s request specifically asks Defendant to calculate and determine the total amount (at 19 present value) it saved as a result of Plaintiff’s layoff. That would be a horribly complicated calculation 20 even without discounting it to a present value. The calculation would involve money Defendant did not 21 have to spend towards Plaintiff’s wages, benefits, infrastructure costs (i.e. office space, computers, 22 internet, telephone, supplies, etc.) and costs for support staff. Even Plaintiff’s wages alone would be 23 difficult to calculate given she was an hourly employee whose hours fluctuated week to week. 24 Defendant would have to speculate regarding how many hours Plaintiff would have worked from the 25 date she way laid-off until today’s date. Defendant would also have to account for any cost increases in 26 other areas, including overtime spent by other employees to cover Plaintiff’s former responsibilities. No 27 lay witness can perform all of those calculations and then discount them to present value. 28 Accordingly, Plaintiff’s motion as to this interrogatory should be denied. {02362448.DOCX} 6 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16, 18, & 19 1 INTERROGATORY NO. 19 2 SPECIAL INTERROGATORY NO. 19: 3 Please identify the cost savings to Defendant by laying off Brooks O'Brien in future anticipated 4 expense. 5 RESPONSE TO SPECIAL INTERROGATORY NO. 19: 6 Objection. Defendant objects to this request to the extent it seeks premature disclosure of expert 7 opinion. 8 PLAINTIFF’S ARGUMENT FOR WHY A FURTHER RESPONSE SHOULD BE ORDERED: 9 When determining how to cut costs in this reorganization, there would be an evaluation done to 10 determine the cost saving if Plaintiff was to be laid off. If to date Defendant has not calculated that 11 savings, then it should state this in its response. 12 Plaintiff is not asking for an expert opinion. Rather there should be documents supporting 13 Defendant’s articulated business reason for the reorganization and the layoff, and logically, a calculation 14 of the cost savings from terminating Plaintiff, which ultimately occurred, must have been done 15 DEFENDANT’S RESPONSE: 16 This request is also the subject of expert opinion. This request requires Defendant to make 17 calculations a lay witness cannot make. The figure would then need to be discounted to present value, 18 requiring Defendant to calculate the appropriate interest and inflation rate. 19 To be clear, Plaintiff is asking Defendant to calculate how much it saved in future costs resulting 20 from Plaintiff’s layoff. To make that calculation, Defendant would have to retain an expert to offer an 21 opinion regarding Plaintiff’s work-life expectancy, which is unique to Plaintiff given her medical 22 conditions. It goes without saying that Defendant cannot calculate how much Plaintiff would have 23 earned throughout her employment if it does not know when she was going to retire. 24 The calculation would involve money Defendant does not have to spend towards Plaintiff’s 25 future wages, benefits, infrastructure costs (i.e. office space, computers, internet, telephone, supplies, 26 etc.) and costs for support staff. Calculating Plaintiff’s future wages alone would be difficult given she 27 was an hourly employee whose hours fluctuated week to week. Defendant would also have to account 28 for any cost increases in other areas, including overtime spent by other employees to cover Plaintiff’s {02362448.DOCX} 7 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16, 18, & 19 1 former responsibilities. No lay witness can perform all of those calculations and then discount them to 2 present value. 3 Accordingly, Plaintiff’s motion as to this interrogatory should be denied. 4 5 Dated: February 18, 2021 PORTER SCOTT A PROFESSIONAL CORPORATION 6 7 D By __________________________________ 8 Derek J. Haynes Marc A. Rodriguez 9 Attorneys for Defendants 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {02362448.DOCX} 8 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16, 18, & 19 Brooks O’Brien v. The Board of Trustees of the California State University, et al. 1 Butte County Superior Court Case No. 20CV01050 2 PROOF OF SERVICE 3 At the time of service, I was over 18 years of age and not a party to this action. My business 4 address is 350 University Avenue, Suite 200, Sacramento, California 95825. 5 On the date below, I served the following document: DEFENDANT’S RESPONSE TO 6 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER 7 VERIFIED RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16, 18, & 19 8 9 BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business’ practice for collecting and processing correspondence for 10 mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage 11 fully prepaid. BY PERSONAL SERVICE: I caused such document to be personally delivered to the person(s) 12 addressed below. BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an 13 overnight delivery carrier and addressed to the person(s) listed below. I placed the envelope or package 14 for collection and overnight delivery at my office or a regularly utilized drop box of the overnight delivery carrier. 15 BY ELECTRONIC SERVICE: By e-mailing the document(s) to the persons at the e-mail address(es) listed. Due to a shelter-in-place order issued on account of the Covid-19 pandemic, this office will be 16 primarily working remotely, unable to send or receive physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was 17 received within a reasonable time after the transmission.” 18 Jill P. Telfer 19 TELFER LAW 331 J Street, Suite 200 20 Sacramento, CA 95814 21 jtelfer@telferlaw.com jchau@telferlaw.com 22 mguevara@telferlaw.com cmurphy@telferlaw.com 23 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Sacramento, California on February 18, 2021. 25 26 ___________________________________ 27 Cindy A. Grandinetti 28 {02362448.DOCX} 9 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT CHICO STATE ENTERPRISES TO PROVIDE FURTHER VERIFIED RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET 2, NOS. 10, 16, 18, & 19