Free Motion in Limine - District Court of Colorado - Colorado

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Case 1:04-cv-00421-MSK-PAC

CERTIFIED COpy
EXHIBIT A

Document 75-2

Filed 01/24/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.
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10 Defendant. 11 CLAIRE FITZGERALD,

04-MK-421

(OES)

DEPOSITION OF CLAIRE FITZGERALD June 23, 2005

-

Volume II

Plaintiff,

v.
ALBERTO R. GONZALES, Attorney General, Justice (Federal Bureau of Prisons), u.S. Department of

12 13 14 15 16 17 18 19 20 21 22 23 24 25 For the Defendant: For the Plaintiff:

A P PEA

RAN

C E S

SCOTT F. REESE, ESQ. Scott F. Reese, P.C. 795 West Birch Court Suite 100 Louisville, Colorado

80027

ELWYN F. SCHAEFER, ESQ. Elwyn F. Schaefer & Associates, 600 Seventeenth Street Suite 2005-S Denver, Colorado 80202 PHYLLIS A. DOW, ESQ. Special Attorney District of Colorado Assistant u.S. Attorney P.O. Box 607 Albuquerque, New Mexico

P.C.

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87103

SCOT L. GULICK, ESQ. U.S. Department of Justice Federal Bureau of Prisons
4th &

State Avenue
66101

Tower II, Room 802 Kansas City, Kansas

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Javernick & Stenstrom, LLC 3131 South Vaughn Way, Suite 224, Aurora, Colorado 80014 (720) 449-0329 FAX (720) 449-0334 .~

Case 1:04-cv-00421-MSK-PAC

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been, I don't know, proposed or imposed on employees for alleged -- the alleged misconduct charge of unprofessional conduct and sanctions that had been proposed or imposed on employees for the charge of unauthorized possession of

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A Q A Q A Q A

1998. Excuse me. 1998. And I didn't file the lawsuit until 1998. But after you left here? Yes. Did you have an attorney? No.

government equipment or property, whatever it was, as I had 6 been charged with. 7 Q Were you asking for a list with actual names of 8 individuals who had been sanctioned or had had proposed 9 sanctions? 10 A Oh, I doubt it. We always gave the agency the II 12 13 14 right to redact any, you know, infonnation tbat they didn't have to release. We probably really wanted, you know, maybe the bargain union status of the employee. I don't know if we necessarily wanted the grade, no. Management's always allowed to redact that infonnation unless for some reason it's necessary. Q Okay. Why would Mr. Schmidt say no when he came back?

Q Now, my understanding is that the Department of Justice certified and substituted and removed it to federal court; is that correct? A Yes. Q A Q A And got it dismissed? Yes and no.

15 16 17 18 19 MR. REESE: Objection. Lack of foundation. 20 THE WITNESS: My personal opinion is because 21 he's a schmuck. 22 23 24 25

MR. REESE: Don't hold back, Claire. Q (By Ms. Dow) Did -- did he ever tell you why he said no? A Only during that one telephone conversation we

18 19 20 States for Mr. Schmidt. We had a hearing based on my 21 challenge of the substitution. I did not prevail during 22 that hearing, because Judge Kreiger, I think, made a a 23 decent decision where she said that I was not successful in 24 proving Mr. Schmidt's subjective state of mind at that

What do you mean by that? The agency attempted to substitute the United States as the defendant for Mr. Schmidt, claiming that Mr. Schmidt had acted within the scope of his employment. They did successfully remove to federal court. I contested the substitution of the United

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time, which of course is very difficult to prove without , 164

162 I 2 3 4 had where he claimed that the law firm of Minahan & Shapiro represented me, not the union. Q Now, I thought you had been president before this. 1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 direct evidence. And after Mr. Schmidt was -- or after the United States was successfully substituted for Mr. Schmidt, I simply didn't pursue the lawsuit. And because I didn't, it was dismissed. But, I mean, once the United States is substituted, you can't sue the United States for libel and slander anyway. So... Q Do you still have records for how much you paid for the counseling you received from the lady I deposed

5 A Yes, I had been. 6 Q Okay. But you say that you still didn't know 7 the union procedure well enough to know that you couldn't 8 just vote a president out. 9 A That's true. 10 Q Okay. So you filed the lawsuit against him? II A Yes. 12 Q For libel and slander? 13 A Yes. 14 15 16 17 18 19 20 21 22 23 24 25 Why? By that time I had lost my job with the Bureau of Prisons, and I was trying to think of ways that I could get rid of the impediments to my continuing my employment with the Bureau of Prisons. And that was one of the things
that I thought of to possibly get rid of the

yesterday and Irma, who you're currently seeing? A I -- I can get records for Dr. Rahtjen. And because I know I can get them I have not obtained them at this point. From Ms. Galisewski -- I don't think that I have a copy of her invoice, but I'm pretty sure we obtained one prior to the hearing before the EEOC administrative judge. So I'm hoping that document is still among the records that we have. I don't personally have them in my possession, but I'm hoping that the legal counsel that represented me at that time has it among the documents that were under their control. Q Now, in your testimony in the EEO proceeding, you made a claim that your miscarriage was caused as a result of these events having to do with this lawsuit. A Yes. Q Are you still claiming that?

Q A

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--what I thought were these fictitious allegations that were pending

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against me. Q Well, this incident happened in October 1997. A I know. Q You didn't leave the Bureau of Prisons until 1988.

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Javernick & Stenstrom, LLC 313) South Vaughn Way, Suite 224, Aurora, Colorado 80014 (720) 449-0329 FAX (720) 449-0334 "

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A Yes, Q What physician did you see for that? A My Ob/Gyn. Q Who was that? A I don't rememberhis name right now. I don't know, but he's a gentlemanhere in Denver. As far as I know, he's still here. MS. DOW: Well,I would ask that Counselprovide me with that and that be one of the names includedon the release --medical authorization. Q (By Ms. Dow) On what basis are you claimingthe miscarriagewas a result of -A rve never had one before. I always got pregnant very easily. Ijust had never had a problemin that regard. It was veryunusual for somethinglike that to happen to me. And I was under a tremendousamountof stress at work. Q Did your doctor say that that was what caused the miscarriage? A We didn't specificallydiscussthat. Q Did you ask him about it? A No. Q Who was the AUSA in the case you had against Gary Schmidt? A There were --I think they weretwo Department 166

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Nowick. Cherieneis S-C-E-R-I-E-N-E(sic); Nowick is N-O-W-I-C-K. And when I went to Cherienewith this paperwork,she said, Well,the managershere --like, the -- I can't rememberoff the top of my head who she said. 1think it was, like, the chief of the criminal divisionhad spoken with the chief of the --the then chief of the civil division. And I can't rememberif the actual U.S. Attorneyfor the district was involvedor not. But they were aware of the fact that I had obtained a restrainingorder against Mr. McAfee,and there had been somediscussionthat I wouldn't be permittedto comeback for the second-semesterintemship. And I guessCherienehad stuck up for me. And they fmally cameup with the idea that I could go ahead and do the second semesterof the intemship, but I would be restrictedfrom having any contactwith anyonein the civil divisionand I wasn't supposedto go I think it was on the 11th floor --whereverthe floorwas that most of the civil divisionattorneyswere, and I think the personneloffice was there. And I felt like I was under increasedscrutiny at that point. Cherienewas always verynice to me and sometimeswalkedout with me at the end of the day. But I kind of felt like she made a more of a point of when she was leaving,makingsurethat I left then, too, and making

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168 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sure that I got out of the building. And what previously had been a very, very enjoyableand rewarding experience for me becamevery stressful. And I included this informationin one of the EEO complaintsI had filed against the Bureau of Prisons. And I think it was someonein Bureauof Prisons' Washington,D.c., central office who said, Well, if you're --if you have an issue with the U.S. Attorney'sOffice, you have to file a separatecomplaintagainst them. So that's how I cameto file a separatecomplaintagainst the U.S. Attorney'sOffice. And I don't rememberwhen that happened. So I was told to make that split. It wasn't somethingI did of my own initiative. Q And what was the basis for that claim? Gender discrimination,reprisal, what? A Reprisal. Q Did anybodyhere know that you had engagedin any EEO activity? By "here"I mean the U.S. Attorney's Office in Denver. A They knew that I had opposed sexual harassment by Mr. McAfeeby obtaining a restrainingorder. Q Well,but that is not the same as engagingin an EEO activity. Did-A My understandingis that under Title 7, any act of opposingdiscriminationis a protected activityand it

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of Justice attorneys. I don't know that they were Assistant U.S. Attorneys; I think they were just Justice

Departmentattorneys.Onewas a girlnamed-- whatwasher name? --Bosshart(phonetic),somethingBosshart. Andthen he had an unusualname. She was, like,a beginning attorney;and thenhe, I think,was kindof overseeing her work. I don'trecalloff the top of my head. Q Do youhaveany recordswhichwouldreflect that? A I probably do. Q Was --did you file that lawsuit before or after
you filed an EEO complaint against the United States

Attorney'sOfficeherein Denver? A I don'trecall. Q And whydid you file an EEOcomplaintagainst the U.S. Attorney'sOffice? A Well,the -- the underlyingfactualallegation was that I had been an internwiththe officeherein
Denver in the fall of 1996. And at the time that I had

been acceptedfor an internship,I had beentoldthat I coulddo one semesterin the civildivisionand thena secondsemesterin the criminaldivision. Andwhen-- and
there was paperwork that I had to have completed for the

university. WhenI -- I workedmostdirectlywithCheriene

Javernick & Stenstrom, LLC 3131 South Vaughn Way, Suite 224, Aurora, Colorado 80014 (720) 449-0329 FAX (720) 449-0334 ~