Free Reply Brief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ELBERTA LIEBERMAN, Plaintiff, v. FAMILY COURT, STATE OF DELAWARE, Defendant.

) ) ) ) ) ) ) ) ) Civil Action No. 96-523

Deposition of ELBERTA LIEBERMAN taken pursuant to notice at the offices of Morris James Hitchens & Williams, LLP, 222 Delaware Avenue, Tenth Floor, Wilmington, Delaware, beginning at 9:00 a.m. on Friday, June 10, 2005, before Ann M. Calligan, Registered Merit Reporter and Notary Public.

APPEARANCES: EDWARD M. McNALLY, Esquire MORRIS JAMES HITCHENS & WILLIAMS, LLP 222 Delaware Avenue P.O. Box 2306 Wilmington, Delaware 19899-2306 on behalf of the Plaintiff, MARC P. NIEDZIELSKI, Esquire Department of Justice Carvel State Office Building 802 North French Street Wilmington, Delaware 19801 on behalf of the Defendant.

WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477

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ELBERTA LIEBERMAN, the witness herein, having first been duly affirmed on oath, was examined and testified as follows: EXAMINATION BY MR. NIEDZIELSKI: Q. A. Q. Good morning, Mrs. Lieberman. Miss. Miss Lieberman, we've been here with you. You've been deposed before. You

met me before. A. Q. Yes.

Do I need to go through any of the instructions

or do you think you understand? A. Q. I think I understand. Thank you.

If at any time you don't understand a question

I ask you, just let me know and I'll try to rephrase the question. A. Q. Okay. What I'm going to do initially, Ms. Lieberman, Okay?

is go through these documents that were produced after your other deposition, your prior deposition, and I'm going to ask you to identify them. A. Okay. Okay?

And let me make sure I don't knock

anything over here.

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I didn't go in any particular order here. I think -- I may. Q. I'm not sure.

Now, you see on the corner of these documents

there's a number? A. Yes. MR. McNALLY: Excuse me. Please wait All right?

until he's done asking the question. Please. Q. A. Q. A. Q. Do you see those numbers? Yes. And do you see it's a BL 0803? Yes.

And does it appear to you that each page has

been marked sequentially? A. I have not had a chance to check numbered ones,

so I can't -- but I assume -- my lawyer tells me it was done, so I trust that it was. Q. Just take a few minutes. Just go through it

and at least see whether in fact it seems that the sequence is unbroken. MR. McNALLY: That was certainly our

I'll stipulate if there are any cases where

the sequence was broken, it was inadvertent. MR. NIEDZIELSKI: Let me make this easy.

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Will you stipulate there that the documents here are Bates stamped BL 803 through BL 1283? MR. McNALLY: BY MR. NIEDZIELSKI: Q. Now, the first document that's marked BL 0803, Sure.

what is that document? A. Okay. This is what was called -- used to Used to have a title

have -- it's an activity report. at the top. Q. A. Didn't by this time?

Now is this typed or hand filled out? It was -- part of it is typed and part of it is

hand filled out. Q. A. Would you fill these out? Most of the time, yes. Not all of the time,

but most of the time. Q. these. A. Q. Yes. And for instance, it says, August 1984 on BL Now, there's a date that appears on the top of

0803, correct? A. Q. I think it was '94. I am sorry. '94. It's upside down. Where

would you get these documents from? A. That's in another -- to make this up, that's in

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another one of those. mediation calendars. Q.

It was called the handwritten

We'll refer to these as a category, and these

would be called mediation statistics and daily activity reports? A. This is the last step of the process before you

do statistics. Q. A. Q. In other words -Compiling these. Odds are we're going to go to those other

documents probably. And then you, from those other documents, you generate these documents, correct? A. Q. That's correct. And part of them are typed. Are they typed by

you at the time that these are prepared? A. What happened was I made a mistake. They had

just taught us the computer, and there was a template, and I was supposed to make a copy of the template rather than type on the template. And I spent five

hours on a Friday typing in all of my cases and lost all that work. So they let me do it a different way

because I didn't have another five hours to put into typing all the cases in. I did type this in.

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MR. McNALLY:

This being this particular

THE WITNESS: that you see. Q.

This particular -- these

The left three columns that are typed in there

would be names? A. Q. Mm-hmm. The first two columns in the third column there

would be -A. And this is cropped. This one, the respondent Third is

was first.

Second column was petitioner.

the court file number.

The next one is the first

mediation date that was scheduled, the type of the matter, and if it was rescheduled, to what date. MR. McNALLY: You're referring to

BL 087, not to BL 083, right? THE WITNESS: Yes. Because BL 803, it got

cropped, and it was -- the list wasn't on top of what the columns represented, so I made sure I was telling you accurately by looking at that one. Q. I see what you're saying. You're saying the

label at the top wasn't reproduced on 803? A. Q. Mm-hmm. Now, so you would type in the four columns and

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then -- but there also appears to be handwriting. that your handwriting? A. Q. Yes. Would that be true throughout all these

Is

reports, that would be your -A. Practically all. At one point there was a

mediator who didn't have anything to do, and she was asked and hand printed some of these. Q. And you indicated that this is a subsequent

step to gathering statistics and making the report, correct? In other words, there's an earlier step that

you go through? A. Q. That's correct. Can you just tell me generally, would you do

these individual reports on a weekly basis, a monthly basis? A. It would depend on other factors. It certainly

had to be done on a monthly basis, but often I would do it throughout the month, work on it throughout the month. Q. At some point, for instance -- now, I'm

referring to BL 0843 -- it appears that the form is somewhat different here. A. That's correct. This is -- this is when we

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had -- I'm trying to think. throughout.

The process changed

Like this is when we had on the form when That changed in what they I did better when it was

we got it as a new matter. wanted when it was typed. handwritten.

And it also changed -- it could change

in terms of whether -- over the months it would change over whether they wanted all of the same type of matter together or. You know, and then -- so if you

saw earlier ones, there would be a whole set for custody, then ancillary custody, and down the line. Q. You had to do them at least monthly. These

monthly reports go from August '94 back to -- are these the earliest ones we have, March of '91? that correct? A. That's correct. And I do have to say that Is

these were the documents that Family Court gave my friend's father. reports. Q. I don't have totally complete

I did the best I could. These are documents that your

I am sorry.

friend -A. After Family Court made me leave, I called them

and told them I -- well, I called that day and said I needed my documents, and someone -- I believe it was my supervisor Dave Weiss -- boxed everything that

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was -- because I made copies of everything, so I had records. So I cannot promise -- like, for instance, I

know that February of '93, the statistics are missing. I'm not going to say I have them when I don't. Q. So these were provided to you by Mr. Weiss

after you left? A. Q. A. Or somebody. But you made a request to Mr. Weiss? I made a request to Kathi Donofrio, and his

supervisor at the time and the deputy director from New Castle County, and I explained that my friend's father was willing to come with a truck at an agreed upon time and would have everything boxed of mine, and in the years since, I've worked on putting them together. Q. And so these would have been your own records

kept in your desk? A. In my office, yes. But they are not totally complete. Q. I'm going to show you another set of documents And the accordion file is

in an accordion file.

marked "typed mediation calendars," correct? A. Q. That's correct. And it has a date it was produced to me

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November 17th, 2004, and it has those Bates numbers, BL 1284 through BL 1541. MR. NIEDZIELSKI: I take it you will

stipulate, Mr. McNally, that that, in fact, is what is in that. MR. McNALLY: BY MR. NIEDZIELSKI: Q. A. And would you just explain, what are these? Okay. This is -- we are going from the most Okay? So in terms of developing Sure.

recent back.

statistics, this was a calendar that was typed off the handwritten mediation calendar I expect you'll go to next, and usually, the handwritten calendar for this date -- I mean the typed calendar for -- excuse me -for this date would have the same cases that were on the handwritten calendar. But that was handwritten by And so -- what do

the clerk who was assigning cases.

you want me to explain first about this calendar? Q. A. unit. Q. A. Q. It would appear typed? Yes. And then there was handwriting on it? Who makes this document? How is this made?

This was made by the clerks in the mediation

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A. Q. A. Q. A.

Yes. Whose handwriting would that be? Usually the mediator's. So, for instance -These are my handwriting. Sometimes, if

someone else handled a case for each other, sometimes you see a different handwriting. Q. Okay. For instance, were these -- did each

mediator get their own calendar or was this a calendar for all mediators? A. Q. A. There were two pages of this calendar. Okay. And I believe -- you see, I was not clear with

Mr. McNally that not all of this that you got was correctly organized. But, I think this is mostly -- I

did everything in reverse order like Family Court did. So I believe you'll find them in reverse chronological order by month. Q. Then these mediation calendars appear to -- the

most recent one on top is October 3rd, 1994, and that's Bates stamp BL 1284? A. Q. Yes. And the one at the very end appears to be April

of 1993, correct?

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A. Q.

Yes. And it was Bates stamped -- just so we are

accurate about that, the bottom, what's that number Bates stamped on that one for April 9? A. Q. BL 1537. So after, for instance, you or another mediator

would handle a case, would you go out and make notations on the calendar? A. Yes. Except that -- just for one thing for you

to know, I noticed when I was reviewing them, he would put the calendar away before the final mediation was done. And so sometimes what was done on the last, the

fifth mediation -- I think it was five -- is not written in there. And the other thing you don't know

is, because you don't have the originals, which I have, is what I added later to make this more complete from my copies of the dispositions. Q. A. Q. A. You have the originals of these? I have my original copy. Well, explain to me -I don't have the original calendars. We've

asked you for them, and we understand they were destroyed. So each month I would do statistics from

this, and fortunately I -- we had a -- I had time and

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did -- usually I did it at the end of the month, but fortunately I did this, copied up until the 13th of October, or I would have nothing of this to offer you. Q. So I'm just trying to get this clear. So the

clerk would generate this mediation calendar? A. Q. A. The typed form. Each day? Yes. Each day there would be one?

And it would be two pages, one -- and it You know, Lieberman. So the other

was alphabetical.

mediators was -- you know, Judy Sullivan would be on the next page. Q. And then each mediator would get a copy of that

calendar as well, correct? A. Q. A. (Indicating.) Or no? No. I made these copies. We were allowed to

copy them. Q. After you were done mediation, you would go Where was this calendar kept while the

back out.

mediations were going on? A. Q. On the front desk. So you would go back out to the front desk and

make notations at that time? A. Right. Right. And if you see checks -- you're

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not asking that. Q. A. If you see checks, what does that mean? If you see checks, it means it's the -- to all

the paperwork that the state-funded mediators were required to do was done on that day before they took the calendar away. Q. So a check mark after comments meant all the

paperwork that you were expected to do -A. Q. A. Mm-hmm. -- was done? If it was still there when I got it done. Like

they kept taking it away early, but that's... Q. A. Q. You mean if this mediation calendar -Mm-hmm. Right.

Now, was this a copy of your copy that you

maintained? A. Q. Yes. So even though they may have taken away the

mediation calendar, you would still be able to make notations on your calendar? A. Q. Right. You would do that. So even, for instance, at

4:30 you could make a notation on your own calendar? A. That's correct. Mm-hmm.

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Q.

Like you said, this is the initial starting

point for you to gather your statistics, correct? A. Q. A. Q. No. No? No. Sorry.

What initial documents did you use to make the

statistics? A. The initial ones were the handwritten ones of It was another --

the mediation calendars. Q. A. of? Q. Yes.

I believe that's probably -The next one, is this what you were speaking

These are the handwritten mediation

calendars? A. Oh, dear. See, I'm not sure what inadvertently I can't promise that some of them are

was given you.

not out of order. MR. McNALLY: though. A. Q. This is the handwritten calendar, yes. And file that I received this in indicates that He didn't ask you that,

the documents in there are Bates stamped BL 1542 through BL 1774? A. Right.

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Q.

And if you look, you can verify that.

You see

the first one there? A. Q. made? A. Okay. It was made in a couple ways. Basically Okay. Sure. Yeah. Correct.

How was this handwritten mediation calendar

there was a clerk who was assigned to, you know, schedule the matters. These are ancillary matters or So Tara Barnes was her name

petitions for mediators. when I left. Okay. end.

These numbers are something different. I added those at the

So these weren't there.

What I would get is for November 1st, and I This would tell me that I had a

would copy these.

custody petition scheduled for November 1st, Tuesday, of '94. And these were the five matters that were

scheduled for me, and these were the dates that Tara Barnes or I or somebody else scheduled that matter for me. Q. Just so we are clear on the record, what you

are pointing to the right side is a column called disposition, correct? A. Q. A. Yes. That represents, you indicated, the date? Yes.

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Q.

In which you scheduled this particular matter

to be heard on November 1st, for instance, 1994? A. Q. I didn't. Tara Barnes did. Mm-hmm.

Now, you indicated that next to these numbers,

under your name -A. Q. Yes. -- are some other numbers. What do they

signify? A. This was a chart I made up for Mr. McNally in I

2000, I believe, and it was done without names.

wanted -- I was -- I later made that one up to be more complete. The first one -- this refers to number 24

on the list I did for Mr. McNally, and it didn't have all the information he wanted you to have or the Court to have. So these don't count any more. But that's

why they are there. Q. Were they used to identify individuals in lieu

of using their names? A. Q. Yes. I also had the court file number.

So when you did this report for Mr. McNally,

did you just use the court file number? A. Yes. And the other information, but not the

names because I thought we weren't supposed to give the names.

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Q.

Now, in sequence, this mediation calendar that

we've just been discussing is handwritten? A. Q. Yes. We just went through another set of documents

which were mediation calendars but they were typed. A. Q. So this is first, then second. This was initially done by the clerk. Did you

input those dates when they get scheduled from mediation? A. Yes. These mean these are now assigned to me

and it was the Court's way to keep track of all matters. So they were assigned to somebody somewhere.

So, for instance, if I may, I think this is a good example right here. September 1st here. this file. saw it. These -- this one, I see I don't see the October 1st in

And I believe it's in a separate file as I

This one's a good example, Mr. Niedzielski. You see, this one was assigned to me and

of course it -- the copier cropped off the date.

It

was two matters that were assigned on November 21st. But it was assigned -- I can't remember the date that I estimated that it was or knew it had been scheduled or estimated. It had been scheduled -- for instance,

she was scheduling on -- for November 3rd other --

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which was another November date that I -- the only one I had. 26th. She was scheduling cases on September 21st and So this was scheduled in September as I recall. Okay.

I can't remember specifically.

So this is another kind of document I could have gotten the information about the matters that were now on my calendar but certainly I had not even mediated yet. statistics. Q. Okay. Well, for instance, this document, which But I was to have them on my

is BL 1545, it's entitled "scheduling instructions," correct? A. Q. Mm-hmm. And it says scheduled for November 21st, 1994,

at 1:30? A. Q. A. Q. A. Q. A. Mm-hmm. And it requires three hours, correct? Right. Was it scheduled for November 1st however? No. Okay. -- that, you see, actually this is what Tara I'm trying to remember. She made these up. That I'm just showing you --

Barnes had or made up.

looks like her handwriting.

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Q. A.

Okay. All right? And so then, from this she would But she wasn't They did that because And

write this information here. scheduling for November 21st. there were two attorneys.

See, two attorneys.

she had to get -- schedule it when they're available. So that's -- I'm just showing you another way information could have come. Q. Okay. Does information normally come this way

through these scheduling instructions? A. No. I would usually get the information from That would be a lot

this because this is a summary. more sheets. Q. A. Okay.

That stayed with the file.

The other thing -- okay -- is I could have

scheduled here, but you would see a different handwriting. Q. Well, just so I'm clear on this mediation

calendar, it has a date on top? A. Q. Yes. Is that the date these mediations are going to

be heard? A. Q. Yes. And on disposition, that's the date they are

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scheduled for this date, November 1st? A. Q. Correct. Is that the same date they would be assigned to

you, for instance? A. Q. Yes. I'm going to hand you a file, and if you could

just generally identify what that is, what that stack of documents are? A. Okay. Let's see. Like I said, Mr. McNally --

I was not clear with Mr. McNally that some of these things were out of order. And I apologize that they

hadn't been put in order before it was given to you. Q. A. No. Okay. That's okay. First of all, on the bottom somewhere,

either like, if I did a personal service notice, in this case I generated it. Here's a date issued, so

you knew from my computer that -- if you want me to -I'm just showing you the different kind of things that are in here. This shows that, for BL 2101, the

document number in this case, on February 25th, I issued a personal service in the civil notice for this person to appear on April 6 of '94. And there's the

second page over -- that's not stapled -- where the process server -- it's on the back usually -- would

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say who he delivered it to, he or she. Okay. Because we could not send something

to a judge unless we had proof, if respondent didn't appear, unless we rescheduled it and did personal service notice. Q. So the first time it was scheduled for

mediation, it would not necessarily be personal service, correct? A. Q. That's correct. If one or both parties did not show up for that

one, then you would do a personal service? A. It depends. Usually if the petitioner was

notified at the addressed we gave, the petitioner gave, and the petitioner didn't show, then usually it was dismissed. wage attachment. Usually. And this first page is a

We were responsible in these -- this

changed over time, but we were responsible for generating the state-funded mediators, not the federally funded, the state-funded mediators had to generate a wage attachment. were signing them. correct place. So these are just showing different things I had to do. At this time the masters

And make sure it went out to the

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Okay. 2102.

I don't want this -- this is separated now from the back that I had. Q. A. It was marked 20 -Yes. 2102. And it's -- 2109 -- well, somehow It isn't.

it got separated, but if is the back -- no. I apologize. This goes with this.

This 2101 and that's

These were, I guess, just showing you the different types of things I was required to do. Q. Let's just make sure we keep them in the

numbered order. A. Q. Did I give them back correctly? There you go. Next document is BL 2103. What is this?

I tried to keep a copy of what I

generated out of each mediation to help me with statistics. I had a copy. So what this says is this is a mediation action request which is often what we generated if there was not consent, or if there was a consent order that was final, we didn't have to do this. So this It also helped if the Court misplaced it.

just says -- you want me to go through everything it

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says? Q. A. No. So on April 5th of '94 at 11:30 I met with the It was important you put And that they

petitioner and respondent.

in the correct -- correct addresses.

had not reached a consent at mediation, the guardianship. You had to put the file date. And this

is my assessment, my repeating -- you know, they are going to work with this. sister. Services. Katrina -- I think it was a Catholic Social

I forgot to put that in. Whatever.

Then on the back, which is upside down, but I said, schedule for a judge, guardianship for a judge, and on February 6th of -- May 6th -- excuse me -- of '94, I apparently wrote that document. Q. Now, how is it you had these copies? You've

had these copies. of these documents? A. and -Q.

Where did you acquire these copies

That I mentioned about calling Kathi Donofrio

All these documents here were given to you at

the same time? A. Q. And more. Okay. Boxes.

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A.

So this is from April 5th, and I don't know --

I thought they -- the ones that you were given -here's April 5th. This is 11:30. Here's 1:30. I

don't know if you have them in order or not. so. Q.

I hope

I got them the way they were given to me. MR. McNALLY: There was no question

pending. THE WITNESS: I'm sorry. Thank you. That's

And then these are consent orders. an example of a consent order. Q. A. Two parties sign it? The parties permanent. I signed it.

So you wouldn't see a

mediation action request.

There's nothing further to

do except maybe a wage attachment that I had to do and the docketing. Q. Now, that file, large stack of documents was

marked "4/94 mediations," is that correct? A. Q. That's how it's marked. And it was also marked that it contains Bates

stamp BL 2099 through BL 2342? A. Q. A. That's what it says. We confirmed that the first one is BL 2099? Right.

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Q. A. Q. A. Q. A. Q. A. Q.

And the last one? And that's the first page. What's the last page? On this? In your file. Is BL 2343. Which is marked in the folder, correct? Yes. Now, unless I hear differently from you,

Miss Lieberman, would it be fair to assume that the rest of these files that you can see marked similar way for mediations for different months -A. Q. Yes. -- contained essentially the same kinds of

documents we just discussed? A. Q. Mm-hmm. And again, documents representing your work

product, is that fair to say? A. Q. During that month, yes. I don't want to go through them all unless you

want me to. A. Q. No. I was given this document yesterday and

probably should have this marked as an exhibit.

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(Lieberman Deposition Exhibit 1 was marked for identification.) BY MR. NIEDZIELSKI: Q. Let me hand you the document that was marked

Lieberman 1. A. Q. A. Q. A. Yes. Have you seen that document before? Yes, I have. I generated it.

Can you tell us when you generated it? Well, it was -- I'm sorry. I didn't memorize

that date.

I'm -- on the date of the last deposition,

it was already done, your first deposition with me. Q. A. Q. So you had done it some time prior to that? Yeah. Mm-hmm.

In addition to being marked as Lieberman 1,

it's actually a series of documents, is it not? A. It has a series of pages, and there's one --

actually, I think this was attached, this memo, and I just did this to try to facilitate your or anyone else's reading of this document of where I got this information. Q. A. Q. Okay. So that was recently. Was --

Last week. What you did was you made this document

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yourself sometime prior to your deposition, and I forget when that was. A. Q. Mm-hmm. And do you recall how much prior to that November 8, 2004?

deposition you had completed this document or generated this document? A. My estimate is two to four weeks before. MR. McNALLY: That's fine. All you can

tell us is what you recall. A. Q. A. Q. A.

Don't worry.

It might be on my computer when I generated it. I take it you have a home computer? I do. Have you always had a home computer? Since my parents passed away. I used some of

the money to buy a home computer. was at Family Court.

So that was when I

This is a different one where my So since '93 or '94 I had

mother passed away in '92. one. Q.

And my understanding is, from reading the last

page of this document, which is your explanation of how you compiled this document, that you would go to the various other documents that we have gone through and you would generate numbers for that or you would use those numbers. You use the Family Court file

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number.

You looked at the date it was assigned and

then the mediation date, correct? A. Q. Right. And at the right side is paperwork due from

EBL, correct? A. Q. A. Q. Yes. That's you, EBL? Yes. Then you would put a yes or no or a question

mark depending on what the response was? A. Q. page? A. Q. Yes. You notice the very first case on the first It's ancillary custody, correct? Yes. And it's marked as number 1, and it's date

assigned is May 2nd, 1994. A. Q. Yes. I didn't find any, going through this document,

that were earlier assigned than May 2nd, 1994, is that correct? A. I do not remember. I trust your judgment. It

looks like you're right. I believe that's correct. done it correctly. I hope I've

I've done it as best I could.

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Q.

Do you have an explanation for why that is, why

is it there appears on this caseload list that you generated nothing earlier than May 2nd, 1994? A. Because I had been working very diligently to

bring my caseload up-to-date, and so, while some of these had been mediated already as of October 28th and were still my -- would still show as open, there was nothing for me to do. You know, if a stipulation was

pending, I had written this letter and it was in the file to the attorneys giving them a date by which they had to have a stipulation in or asked for another mediation. So that my work was complete until I heard

from the attorneys like in this case. Q. In 1994 did somebody at Family Court help you

with your caseload? A. Q. A. Yes. By reducing it? Yes. At the beginning, in January of '94, It was in January of -- it may There was a change in

there was a change.

have been in December of '93.

my supervisor, and I had asked my earlier supervisor for similar help and she wasn't able to do it for me. But David Weiss had been my co-mediator, and I said to him when he became my supervisor, may I sit in on two

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or three mediations with you and to try to see how you get the paperwork done, you know? behind too. you catch up. Now, he would be But you know,

I mean, that just happens.

You can't always do exactly within the

hour and a half or 45 minutes you have. But I sat in with him and got ideas. I

hadn't thought of ways to structure my own activities during the mediation so that I wouldn't have to do so much after the mediation to complete a case. wonderful help. That was

I was reviewing -- if I may say, by

June -- I went through the month of June and August yesterday myself just to see how I was doing, and in most cases, not all, but in most cases, if it was -if there weren't outside reasons beyond my control, I was getting most of that paperwork done on the day of the mediation, which is very different. And I was

also -- I noticed in June, for instance, my supervisors didn't know how to resolve some of these things that were old because they didn't fit the normal -- if this happens, you do that. But we had a master. us a master. The Court had given She's a

Herlihy was assigned.

commissioner now, but they were called masters then. And I went to her, and I said, I have these kind of

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situations and she would tell me of a court rule that I hadn't been taught about and this is how you could resolve it or another way to resolve it and close it with myself. So like I remember -- and you don't have the organization I have, of course. reorganized. Mine I've

But in June there were a whole lot of I was getting information. So

those each month.

Master Herlihy and David Weiss with helping me -David was helping me learn how to keep up. And also in January of '94, I had learned I had ADD. I'd never known that. The Delaware

Department of Labor representative, EEOC representative suggested I get evaluations about why this might be I have trouble keeping up with my paperwork. I had that problem the whole over 20 years

I worked for Family Court. Q. A. Q. A. I'm trying to put a time limit on this. Sure. When did Mr. Weiss become your supervisor? As I said, it was either the end of '93, like

in December, or the beginning of '94. Q. A. Did you like him as a person? Yes.

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Q.

Did you think he was honest and straightforward

with you? A. No. I don't think -- thought it was his job to So it was not

keep -- I mean, he was a supervisor.

his job to tell me what he had been told he was to do about me. Q. Well, let me ask you this. Prior to him

becoming your supervisor, had he been a mediator himself? A. Yeah. He was a federally funded mediator. He

just handled the support cases from DCSE. Q. A. Q. A. Q. At some point he was promoted -Yes. -- to supervisor? Mm-hmm. And was he open with you? Did he treat you

honestly? A. He -- you see, his supervisor -- what I mean

about not being open is he's told things about how he's to act with me, that he is not supposed to tell me. I was a supervisor, so I know that. But in terms

of -- I asked him for the help of letting me sit in on some mediations and give me some ideas, tell me -- let me see what you are doing to keep up with your

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paperwork.

In that way, especially at the beginning, Later he -- you know, he wouldn't He knew I

he was very fair. meet with me.

And he wasn't always fair.

needed certain accommodations.

They had it in He would put

writing, and he would put it in writing.

me down for asking for a change of something because of my need for accommodations. And then he would put

it in writing that -- complaining that I had even asked. Q. A. Q. Well -As an example. Okay. As an example. Had they attempted to do things to make your job easier so you could do your job? talking about. A. Dr. Erb did the educational evaluation. Kathi Donofrio. They That was 1994 I'm

gave me some colored files. the only thing -- no.

Two things they did that I The one was

remember of what Dr. Erb recommended.

they gave me some colored manila folders because they recommended that, and the other was Mr. Klosiewicz showed me how I could buy something to buffer out noise. That was all of Dr. Erb's recommendations that You're asking -- your question is, did they

they did.

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do anything to help me? Q. A. Mm-hmm. Kathi Donofrio closed a few cases, six or more.

I remember I saw the note from her recently that I used in my statistics and told me how they were resolved. You're talking '94, so it's not Ana DePaul. David closed 18 easy dismissals. Easy

meaning petitioner didn't show.

All you have to write

is the information, petitioner didn't show up, and the notice was sent to the address petitioner provided. That was a help. Q. A. Q. A. Q. A. But it was only, you know, 24 cases.

Were you relieved of a 170-case backlog? In '94? Mm-hmm. No. Not that I remember.

Were you relieved of a large backlog? Not that I remember. Not in '94. I may be

wrong, but I do not remember that in '94. Q. A. Q. A. Q. You indicated you were given color-coded files? Just colored files like those, but in color. You were told about a noise buffering system? Yes. Did you get that?

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A.

No, because mediators had enclosed offices, and Her issue was I was so

I was able just close my door.

easily distracted that I found -- I couldn't afford what he showed me. It was nice. He showed me. But I

was able to cut out noise in another way. Q. Were you excused from performing custody

investigations? A. I did not perform any in '94. I don't know how

many or even -- I don't think there were many referred to mediation. I didn't see on any -- you know, those

calendars you showed me, there weren't any that the other mediators were given a day to work on a custody mediation. Q. Were you excused from emergency mediations

during this period of time? A. Not to my knowledge. If I had, for instance,

if I had on my calendar -- if I knew ahead of time that things were resolved, I would go at the beginning of the day and tell whoever was in charge, David or whoever he placed in charge, that I had this slot open. And if they needed me to cover, I was available

to do it and I did it. Q. Were you excused from holding a mediation

hearing if it had to be rescheduled?

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A. sorry. Q.

No.

I don't understand the question.

I'm

Maybe I better -- before I say no -In other words, if they ever had to reschedule

one from the initial mediation date -A. Q. Mm-hmm. -- were you excused from having to hear it, the

rescheduled one? A. Usually the mediators heard their own, and I

did -- when I mentioned to you that on the handwritten calendar could be my writing, I rescheduled my own mediations. whole file. Q. Were you given additional computer training I did all the notices. I prepared the

during this period? A. I was given -- I don't remember if it was in I certainly was given computer training,

'94 or '93. yes. Q. A.

This was very helpful. In '94 were you permitted to flex your time? I do not remember the date, but yes, at some But it wasn't the way I wanted it. It

point, mm-hmm.

was what they gave me. accommodation. Q.

So it was -- they called it an

It really wasn't.

But they allowed you to move your work hours to

some degree?

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A.

Correct.

For 15 minutes, yes.

And we made --

I made sure that all of my first mediations were scheduled to start at 8:45 so the people knew once they gave me that. Q. If you had mediations scheduled for a

particular day and you were not able to go to work that day, how would they be taken care of? How would

those people be taken care of that were scheduled for that day? A. That was up to the supervisor. They would look

and see.

Some of them I may have already resolved.

Otherwise somebody else would mediate it or the supervisor would have the people called and asked not to come in and rescheduled it that moment. Q. Do you recall if Mr. Weiss had to take over

some of your cases for you because you were absent from work, do you recall that? A. I remember seeing his name like when I reviewed I saw his name once. I mean,

some cases yesterday.

there were times when I was ill. abscessed teeth.

I did have two

I changed one of the dentists under I have bad

the state plan, and he pulled two teeth. teeth.

And so I was working at the end for a period

of months with two abscessed teeth that were getting

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more and more abscessed. MR. McNALLY: The question was, did David

Weiss take over some of your cases when you weren't there? THE WITNESS: Or he assigned them to

somebody else or he cancelled them and rescheduled them. BY MR. NIEDZIELSKI: Q. I'm going to hand you a set of documents and

ask you to look at them first, and then I will ask you just some brief questions. The ones I'm going to ask about, you see they are stamped at the bottom? A. Q. A. Q. A. Q. A. Q. A. Q. A. Yes. JENK 03 through -It was 001 through -012, correct? Yes. Now, 003 through 004 -Yes. -- is that your handwriting? Yes. You filled those in? Yes.

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Q. A.

That was all your -When I first went to him, March 12th of '93 it I mean, that's the date I put down.

looks like. Q. A. Q. A. Q.

Is this the new dentist you're talking about? Yes. Do you still go to this dentist? No. Who are you presently treating with for -- do

you go to see a psychiatrist? A. Q. A. Q. A. Yes. What's his name? Neil, N-e-i-l, Schecker, S-c-h-e-c-k-e-r, M.D. And where does Dr. Schecker practice? At 111 North 49th Street -- I'm doing this out

of my head -- in Philadelphia, PA, 19139. Q. A. '92. MR. McNALLY: THE WITNESS: Thank you. MR. McNALLY: THE WITNESS: '92 didn't sound right. That's exactly right. '92? Sorry. Thank you. 2002. And how long have you been seeing Dr. Schecker? I transferred to him at the end of February of

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BY MR. NIEDZIELSKI: Q. A. How frequently do you see Dr. Schecker? Usually three times a week. MR. NIEDZIELSKI: I don't believe I've

ever seen the records from Dr. Schecker. MR. McNALLY: I can't remember, but I I don't think I have

don't know we have any records. subpoenaed records from Schecker. THE WITNESS: time I worked. BY MR. NIEDZIELSKI: Q. What was the purpose?

I wasn't seeing him at the

Why did you prepare this

document marked as Lieberman 1? A. Because I -- okay. First of all, there had --

the last statistics I had to do, they were done at the end of the month, and they were due on either the 3rd or 7th of the next month. So they made me leave So October's had

Family Court on October 28th of '94. not -- statistics not been done.

Okay?

In October, they gave us an extra day to work on backlog or whatever else. And so I was able

to go back on the old cases, go down to the file room. I spent the day in the file room with these old cases to make sure that the case was really done with me. I

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never wanted a client to fall through the cracks.

And

because I did that and got that documentation and they gave us the extra day and I used that way, I knew that, as of October 28th, this is what I had left. Q. No. What I'm asking you is, my understanding

was you prepared this document sometime four to three weeks prior to your deposition of November 8th, 2004. A. Q. A. Mm-hmm. Why did you prepare it? Because part of what David Weiss said in his And so I

October 28, '94, memorandum was incorrect.

wanted to provide documentation of what was correct. MR. NIEDZIELSKI: the next exhibit? (Lieberman Deposition Exhibit 2 was marked for identification.) BY MR. NIEDZIELSKI: Q. Is this the document you that you are talking Would you mark this as

about that you said David Weiss gave you on October 28, 1994? A. Q. Yes. You indicated the reason that you prepared

Lieberman 1 was to show that this document was incorrect?

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A.

There were certain things in this document were

incorrect. Q. A. Q. Okay. To show that I was not behind in my caseload. Let me ask you this. In the first paragraph

says, "This memorandum will serve as notice that I'm recommending you be dismissed from state employment for your continuing pattern of unreliable attendance." Is that what it says? A. Q. That is what it says. And he goes on to document a number of

occasions where your attendance has not been good. You agree with that? A. I disagree because we do not have the specifics I don't have -- for instance,

of what this refers to.

the first sentence in the second paragraph, "You have been late to work on 13 occasions." I had asked on

October 28th of Mr. Klosiewicz when the information I was asking for certainly listed -- I wanted a copy of each of the sign-in sheets that we had to sign in because I was honest on those sign-in sheets of the time I arrived. I wanted specifics because I believe I did not keep copies or make

that was incorrect.

copies of those because I didn't know this was going

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to happen and I would need them.

This, on October

1st, came in and did the physical inventory of pending cases in my office. I've asked, reasked, Mr. McNally

asked in discovery request for this information. We've understood it's not available. These cases that

he looked at could have been ones that were resolved, and he couldn't tell it because it was hard for me -I have trouble with different steps of different things. files on. There was one book we had to sign out court Okay? So if other mediators were waiting

to use that one book, the files would stay in my office because then I do get distracted and that wouldn't be a priority. I knew that case was handled.

I would be working on other cases. And I also did not say that, as of October 1st, I was up-to-date. I say on October 28th I was

up-to-date except for certain cases I don't know about, and the four cases I had -- four cases that I mediated on the 27th were complicated. some paperwork to do. Q. Well, how many times do you believe that you They still had

were late to work from July 1st to October 28th, 1995? A. Q. I don't know. Do you believe you were late to work five

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times? A. I can't estimate. Because also, when I look

through -- remember the ones, the typed calendars, where they are written in? They were jumping to -- I I could then I'll be They

was allowed to arrive at work at 8:45.

say to the people who were there, "I'm here. with you, two minutes, five minutes." were jumping. Okay?

That's why I say I don't think they I think they had their

were being totally honest. agenda.

They were being told to get rid of me. So they were jumping and assigning cases

to another mediator or David would take it when it was wasn't necessary. Their notice had been for 8:45. And

That's when I was allowed to appear in the court.

so they had another agenda, you know, and without the specifics and without those -Q. A. Q. Well, let me ask you this. -- copies, I won't agree to that. Between October 2nd and October 28th, 1994, you

don't know how many times you were late? A. Q. That's correct. But you were late for work during that period

of time? A. I don't know if, how much at all I was late.

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Q.

What you're saying is you don't know how many

times you were late, correct? A. Q. And don't know that it's what they said. Now, it indicates that in 1993 your EPPA --

which is an evaluation, correct? A. Yes. Can you -- oh, you're jumping to the next Okay.

paragraph. Q.

It says your 1993 EPPA indicates your chronic

tardiness as an ongoing problem. A. Q. Mm-hmm. In fact, your EPPA does say that, does it not,

for 1993? A. It may say those words. I can't remember.

Tardiness is certainly mentioned, yes. Q. And David Weiss was not your supervisor for the

1993 EPPA, was he? A. Q. A. No. Who was it? It was Ana DePaul, but Kathi Donofrio, now

Weiss, is the -- was the deputy director, so it was signed by both of them. Q. It indicates in the next paragraph that you

were given a formal reprimand on December 6, 1993, regarding your persistent tardiness?

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A. Q.

That may be correct.

I can't remember.

And it indicates that your former supervisor,

Ana DePaul cited seven latenesses in the month of November 1993 alone. A. Q. Do you recall that?

I don't remember exactly what she said. It indicates the next page, the second

paragraph that March 14, 1994, you were suspended without pay for three days for failure to process cases in a timely manner, again, due in large part to your chronic attendance problems, is that correct? A. That was the order, but if you go on, it wasn't

imposed because they finally listened to -- I had filed a -- my first complaint with the Delaware Department of Labor because they had been given -they had done this. And I didn't file the first one They were not listening

where they took away the day. to I needed accommodations.

By -- this was -- he did -- Randy Williams, at that time he was New Castle -- Director of Operations for New Castle County, wrote this, but this -- this is not -- okay. He wrote it, but then

they didn't -- they stayed -- that was just hanging over my head the rest of the time I worked there because I had filed the complaint, and they -- I

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believe Randy put -- I can't remember his exact words, but that they needed to look at what all the information I had given them in the hearing before March 14th, '94, in the hearing before whenever the hearing was for this. I had given them documentation from doctors of what I needed and that it affected these things. The other thing is that they keep talking about -MR. McNALLY: question pending. THE WITNESS: BY MR. NIEDZIELSKI: Q. You indicate that the three-day suspension was Thank you. Excuse me. There's no

stayed, correct? A. Q. Yes. Mm-hmm.

And at that point, did the people from Family

Court write to your various health care providers requesting information from them regarding accommodations for you? A. not. Q. Do you now understand that to be the case? I didn't know that at that point if they did or

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A.

I don't remember the dates, but from the

information you -- that your office gave Mr. McNally and me, I understand it was done at some point. Q. And you went through some of the things that

you testified that they did make changes for you, color-coded files, gave you flex time, took away a backlog that you did have? A. Q. A. Q. A. No. They did not.

They did not take away a backlog you had? In '94 they did not. Is that '93 that they did that? In '93 all I remember is that my supervisor at

that time, and these are the -- in documents I gave you before I had an attorney where Kathi Donofrio and I talked back and forth. Ana DePaul took some cases,

and I got called or written to from judges that what she had done was not correct. So then I was spending

my time rechecking the ones she had taken because I couldn't trust that -- you know, it's like I wouldn't take something -- my caseload would look like I was behind because if I didn't have a copy of it, I didn't want somebody, a client to go through -- fall through the cracks. So again, what was the question? Did I

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answer it? Q. I think my question was that you now understand

that Family Court sent out letters to your health care providers asking about accommodations, correct. A. Q. At some point, yes. You indicated in your testimony that certain

changes were made for you? A. Q. A. Q. A. No. You didn't testify to that? No. You didn't testify you got color-coded files? Yeah. I'm saying that when they heard -- when

they looked at what the doctor said, they didn't listen to it. Q. Well, do you understand that the need is for Do you understand that?

reasonable accommodations? A.

And when the doctor suggested a reasonable

accommodation, they did not comply. Q. A. In any event -Except for those two little things. And

earlier than that they had given me use of a very old typewriter before we had computers, and that was a help because it's easier for me to type. many problems in my hands. I have so

Easier for me to type.

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They had done that. Q.

But then they took that away.

This memo goes on to document that, in fact,

you had problems with attendance in '92, correct? A. Q. A. Yes. 1990 you had problems with attendance? Yes. It does not talk about the information

that I had given them from doctors about why this was occurring as I learned it from doctors. Q. And what was your understanding for why you

were tardy? A. Okay. I had my psychiatric diagnosis was It's very hard to diagnose

incorrect for 30 years. what I have.

And because of being incorrect

diagnosis, I was put on medications, one of which was lithium, making me have bouts, horrible bouts of diarrhea each morning. ability to get to work. In '94, in the end of March of '94, my correct diagnosis was expected which caused -- called for my not being on that medication at all. Q. A. Q. A. In March of '94? Yes. That problem stopped, then, in March of '94? It didn't totally stop it. I wasn't taking the And that was affecting my

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medication until the end of May or in June. Q. A. Of '94? But it decreased a whole lot when I wasn't on

lithium, yes. Q. A. If that's true, the lithium was the problem? Lithium was part of the problem, a big part of

the problem, and the stress of how Ana DePaul handled the unit and reacted to me was another part of the problem. Q. '93? A. Q. Right. And I thought that the problem you were having But I thought Ana DePaul was before December of

with diarrhea was from lithium? A. Q. A. That's a big part of it, not all of it, yes. You were taken off the lithium by June of '94? I think it was then. I would have to look up

the exact date. Q. And in this memorandum, Mr. Weiss is asking you

or informing you that you've been late to work on 13 occasions since July. of the first page. A. Q. And I can't verify that. He goes on to say in that paragraph, "On That's in the second paragraph

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Thursday, October 6, you phoned at approximately 8:30 a.m., and stated you would be late as a result of having spent all night at Justice of the Peace Court Number 11," is that true? A. Q. Yes. "I covered your 8:45 case, and you arrived to

work at 10:00 a.m.," is that correct? A. Yeah. I mean, he took one situation and wrote

out everything specifically that happened and that I said and put it out of context. Q. Is it accurate what he's saying here, though? MR. McNALLY: refers to the fact that -Q. "On Thursday, October 31st, you phoned in at I'm sorry. The question

approximately 8:30 and states you would be late as a result of having spent all night at Justice of the Peace Court Number 11." A. Q. Yes. "I covered your 8:45 case, and you arrived to

work at 10:00 a.m." A. Q. Mm-hmm. "You did not complete your 10:00 o'clock case Another mediator

in time to take your 11:30 case. had to cover."

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A.

Do I not know if that's true.

I know that he I don't know that Certainly

made -- had another mediator cover.

it's true that I couldn't have covered it.

mediators would certainly walk out a few minutes later. They were looking for reasons. They were

building a case against me.

It is true that, for

whatever reason, I had been up all night going to the Justice of the Peace Court for a Commonwealth action that had occurred that was a continual problem, and I finally had witnessed something that would help. that may have been a wrong choice. back. Q. I'm just asking you if that was accurate. Is Okay? Looking And

that accurate? A. Yeah. Well, that piece is accurate. Whether I

couldn't have handled my 11:30 case, they were -- he was jumping in certainly by -- what date was it? this -- October 6. He was already -- I was looking yesterday at June and August. He was jumping the gun and Of

assigning the case to be able to say when they -- I had this system with the person who was the receptionist of calling them and telling them whatever. So that they were always available at the

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beginning of the day if there was a problem, and that's not here. Then on Tuesday, October 11, phoned in sick at 1:00 o'clock. MR. McNALLY: that. THE WITNESS: Q. Okay. I'm sorry. He hasn't asked you about

It says, on Tuesday, October 11th at

approximately 8:30 a.m., you phoned in sick. A. Q. Yes. At 1:00 o'clock p.m. you phoned again and left

a message that you were going to the dentist and then planned to walk your dog. A. That was switched. Did you do that? I was just giving -- he I was saying I wasn't And I called in I

wrote in all the specifics. reachable.

I had called in sick.

again to say, "You wouldn't be able to reach me." didn't have a cell phone. You wouldn't be able to

reach me because I have to walk my dog and then go to the dentist. Q. I had abscessed teeth. Yes.

On Wednesday, October 12th and Thursday,

October 13th, you phoned in sick? A. That's correct. He still wasn't -- he put me

on the antibiotic.

I cannot actually read the

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documents from Dr. Jenkins, but at some point he pulled the two wrong teeth. I had four teeth left. And

He was going to leave two to attach to a plate.

it ended up he pulled -- and I told him they were the good ones. He pulled the wrong ones. I was very ill,

and he put me on antibiotic and verified -- he signed a note that I had to be out of work. MR. McNALLY: question. THE WITNESS: BY MR. NIEDZIELSKI: Q. Now, in a typical day would they schedule Okay. Okay. I was very ill.

You've answered that

mediations at certain times throughout the day? A. Q. be? A. 8:45. For me, after we reached agreement, it was Other people it was 8:30. 10:00 o'clock. Yes. You've seen the schedule. What would they

What were the times generally?

11:30, 1:30, and 3:00 if that's my correct recollection. Is that five? Q. A. Was that for you? Just everybody else had 8:30 instead of 8:45. Yes.

I had 8:45 and then 10:00.

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Q. A. Q. A. Q.

Was everybody else 8:30 then 10:00? Yes. That I know of.

And 11:30? That I saw, mm-hmm. If a mediator is not to work on time at 8:30,

then what happens to the people that are there for mediation? A. I don't know what -- I'm not privy to what was

done with all the cases. Q. No. No. What I'm not saying is, if a mediator

is not at work on time at 8:30 and they have a mediation, what happens to that mediation? A. I assume that -- either -- if there's somebody

else like me -- and I did this too, but you wouldn't see it on my caseload because it stayed on the other mediator's caseload. If I had told the supervisor I

was available because mine was done, I had that hour and a half and I could take an mediation, they might transfer it to me. Q. If an employee, a mediator doesn't come to work

on time or is not available for a start of a mediation session then some other mediator would probably have to take it, correct? A. Unless the supervisor or the receptionist had

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heard from the mediator that they were down stairs walking up the steps, coming up stairs. Q. But my point is, it was important for mediators

to be to work on time, is it not? A. Q. Yes. And it's important, to the extent they can,

that they be present during scheduled days? A. Q. Correct. Oh, yes.

I mean, would you say that your caseload in '94 Was it a large caseload?

was heavy? A.

In '94, but the caseload -- my caseload was

similar to the other state-funded mediators except that on two afternoons a week I had it preapproved that I would leave. a half hour early. And I think it was one day it was So that day I would be given like So that --

a guardianship which usually was shorter.

what was the date and time -- 3:00 o'clock I think. So I'd be done by 4:00 and could leave. On the other day, I can't remember if it was three-quarters of an hour. There was one day a

week that I had four mediations instead of five, except that, on November 17 of '93, I have a memo that you've been given many times, or I suspect, from me. It was a memo from Kathi Donofrio to me. I had been

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asking for the accommodations of let me make up the work. The amount of time for that hour and whatever And what

it was -- it was less than