Free Designation of Deposition Testimony - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO --oo0oo-ROBERTA PULSE, TONYA HOUSE, ) ) Civil No. 03-WM-2074 (PAC)

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Plaintiffs,

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vs.

) DEPOSITION OF: ) CAROLYN ASHBURN

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THE LARRY H. MILLER GROUP,

) )

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Defendant.

) Reported By:

____________________________) Karen Hourt CSR, RPR 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Deposition of CAROLYN ASHBURN, taken on behalf of the plaintiffs at 9350 South 150 West, Salt Lake City, Utah, commencing at 2:00 p.m. on July 21, 2004, before Karen Hourt, Registered Professional Reporter, Certified Shorthand Reporter and Notary Public in and for the State of Utah, pursuant to Notice.

Case 1:03-cv-02073-WDM-KLM
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 2 17 18 19 4 20 21 5 22 (Attached to the original and copy transcripts.) 23 24 25 The HR Report, September 15, 2000 55 Document dated April 10, 2001, "Current Issues in Harassment - What Managers Need to Know" 53 3 Memo dated 4/20/99, Sexual Harassment Policy 51 Document Entitled "EEOC Settles Racial Harassment Suit Against Car Dealership" 52 FOR THE DEFENDANT: Judith H. Holmes, Esq. HOLMES & ASSOCIATES 7887 East Belleview, Suite 1100 Englewood, CO 80111 (303) 228-2267 INDEX WITNESS PAGE CAROLYN ASHBURN Examination by Ms. Ryan 3 EXHIBITS NUMBER DESCRIPTION MARKED 1 Larry H. Miller Group of Companies Sexual Harassment Training 50 APPEARANCES FOR THE PLAINTIFFS: Kimberly K. Ryan, Esq. THE RYAN LAW FIRM 283 Columbine Street, Suite 157 Denver, CO 80206 (303) 777-7585

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As you can see, we have a court reporter here who is taking down everything we say and it will then be transcribed into a transcript, and you will have an opportunity to review your deposition testimony. You'll also have an opportunity to make changes. If you do make changes to your testimony, I will have an opportunity to comment on that. Do you understand? A. Um-humm, yes, I do. Q. Because we have a court reporter who is taking down what we say, we'll need to be very conscious of avoiding "uh-huh" and "huh-uh," as we would normally do in a normal conversation, but it makes it a little more difficult to take down the answers. Okay? A. Okay. Q. If, at any time, I ask you a question that you do not understand, please ask me to rephrase it and I will do my best to do so, if possible. Okay? A. Yes. Q. This is not an endurance contest, so if at any time you need a break, please let me know. I just ask that if I have a question pending, you answer the question first and then we can take a break. Okay? A. Yes. Q. In normal conversations, sometimes it's easy
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July 21, 2004 2:00 p.m. PROCEEDINGS CAROLYN ASHBURN, called as a witness by and on behalf of the plaintiffs, having been first duly sworn, was examined and testified as follows: EXAMINATION BY MS. RYAN: Q. Would you please state and spell your full name for the record? A. My name is Carolyn Ashburn, C-a-r-o-l-y-n A-s-h-b-u-r-n. MS. RYAN: Let's go off the record for a second. (A discussion was held off the record.) Q. (BY MS. RYAN) Ms. Ashburn, my name is Kimberly Ryan, and I represent Roberta Pulse and Tonya House in their lawsuit against Larry H. Miller Group of Companies and related entities. Have you had your deposition taken before? A. No, I have not. Q. This is my opportunity to ask you questions under oath. You've been identified as a witness in this case. I'd like to go over a few ground rules that will make the day go more smoothly.

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to anticipate what the person is saying and to answer their question. I'll ask that you try to be very conscious of allowing me to finish my questions before you begin your answers, and I will do the same. Okay? A. Yes. Q. I'd like to start by talking about your educational background. Can you please describe any and all education that you've had since high school? A. I have a Bachelor's degree in journalism from Auburn University, Auburn, Alabama, 1981. I have a Master's degree in human resource management from Marymount University, Arlington, Virginia, December 1996. And I have an MBA, Master's of Business Administration, from the University of Utah, May 2004. Q. Do you hold any certifications? For example, a certification from SHRM, S-H-R-M? A. Yes. I am a senior certified HR professional with the Society of Human Resource Management. Q. When did you obtain that certificate? A. I think it was 1995. No, '97, I think. Q. Did you take any coursework or classes to prepare for your exam for the SHRM certification? A. No, I did not. Q. Do you hold any other certificates or licenses -- professional licenses?

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A. No. Q. When you obtained your MBA, did you have an emphasis in any particular area? A. No, it was general business. Q. You said that you have a Master's degree in HR management. Did you have an emphasis in any particular area? A. No. Q. I'd like to talk for a few moments about your work history. I'd like you to start with the position that you currently hold and work backward, giving me your job positions, name of the company, and time frame, going back to college. A. Currently, special projects manager, Larry H. Miller Group of Companies. I accepted the position and started in February 2004. February 1997 through June 2001 -- I guess I should break that down. Let's say February 1997 through October of 1997, assistant director of human resource management, Larry H. Miller Group of Companies. November 1997 through June 2001, director of human resources, Larry H. Miller Group of Companies. Okay. February 2000 -- February 1992 through February 1995, editor Winning Spirit Magazine, Larry H. Miller Group of Companies. Back farther? Q. Does that -- in 1992 -- did you hold any jobs
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unemployed between the time that you were the director of HR for Larry Miller and the time that you became the special projects manager? A. Yes. Q. What was that time frame? A. June of 2001 through February of 2004. Q. During that time frame, you were not employed? A. Self-employed and graduate student in business at the University of Utah. Q. What did you do for your self-employment? A. HR consulting. Q. Did you have any name for your business? A. Ashburn HR, L.L.C. Q. Do you still own that business? A. I do. Q. As a special projects manager, are you employed by Larry H. Miller Group of Companies or are you an independent contractor? A. I'm employed by Larry H. Miller Management Company. Q. What is the name of that company? A. That is the name, Larry H. Miller Management Company. Q. When you were employed as the director of
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prior to February of '92? A. Yes, I did. I worked for the American Red Cross, Gulf Coast Region, Mobile, Alabama -- I'm thinking of dates -- 1984 through 1987. And prior to that, I was a newspaper reporter for the Mobile Press Register, Mobile, Alabama, June 1981 through the first part of 1984. Q. Any other positions prior to being a newspaper reporter? A. They would have been as a college student. Q. What positions did you hold as a college student? A. I worked for the local newspaper, and I worked for the Alabama Cooperative Extension Service in Auburn, Alabama. Q. Have you ever been terminated from any position? A. No. Q. Have you ever been disciplined in any position? A. No. Q. Have you ever participated in a lawsuit as a plaintiff or a defendant? A. No. Q. Was there a period in which you were

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human resources, what company employed you? A. Larry H. Miller Management Company. Q. Do you have an understanding as to what this lawsuit is about? A. I think so. Q. What is your understanding? A. That there is a claim of sexual harassment and retaliation brought forth by Tonya House and/or Roberta Pulse. Q. In December of 1999, you were the director of human resources for the Larry H. Miller Management Company; is that correct? MS. HOLMES: Well, I mean, it's not -- I think you're just trying to find out -THE WITNESS: I don't know. MS. HOLMES: If you don't know, I mean, we're -THE WITNESS: Commonly called Larry H. Miller Group of Companies, my department company was Larry H. Miller Management Company. MS. HOLMES: You don't have to be an expert on entities. Q. (BY MS. RYAN) Right. I'm not really trying to get testimony from you on all of the different Larry Miller entities, but I'm just trying to get clarification

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as to where you were employed in December of 1999. A. Right. Q. So you were HR manager in December of 1999 for the Larry H. Miller Group of Companies? A. Yes. I thought we'd already covered that. Q. Well, there's some question as to the different business entities, but I wanted to clarify. You mentioned Larry H. Miller Group of Companies and Larry H. Miller Management Company, so... We are going on talk about the Larry H. Miller Group. And for ease of reference through the deposition, I'm going to just say Larry Miller. I don't mean Larry Miller individually, I'm referring to the corporate entities of Larry Miller. A. Okay. Q. Does that make sense to you? MS. HOLMES: And I'm just going to have a running objection to Larry -- your characterization of Larry Miller entity. MS. RYAN: What I will do, then, is since the judge granted my motion to join the Larry H. Miller Corp Denver to the original defendant, I'm just going to refer to it as the defendant. Maybe that will make it more clear for you, okay, the defendants. MS. HOLMES: And my objection stands with
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Q. What do you recall about that telephone conference? A. That Tonya said she did not want to work with Mark Dundon anymore. Q. Anything else? A. She was upset and said she did not want to work with Mark Dundon anymore. Q. Did she say anything else? A. I don't recall specifically what she said. Q. Do you remember anything you said? A. No, I don't remember. Q. Did you make any notes of that conversation? A. No, I did not. Q. Why not? A. I do remember that it was after hours, at the end of the day as I was driving home. So I don't take notes when I'm on my cell phone in the car. Q. Did you make notes of that conversation after you arrived at your destination? A. No, I did not. Q. Did Tonya House at that time tell you that Mark Dundon had touched her in an offensive way? A. I do not remember that. Q. Did Tonya House at that time tell you that she thought that Mark Dundon was abusive toward women?
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respect to Larry H. Miller Group. Your original defendant is not an entity -- an entity that should be involved in this. MS. RYAN: They're named defendants in the action. So what I'll do is refer to either the defendants or Larry Miller to encompass the defendant and its related entities. And I'm sure that counsel has an objection, but... MS. HOLMES: I'm not going to interrupt all the time, if you'll just recognize this is a part of our issue contention. Q. (BY MS. RYAN) I understand. So you were employed in December of 1999 as a human resources director for Larry Miller; is that correct? A. Correct. Q. Do you recall having a telephone conference with Tonya House and Mark Kolon regarding harassment by Mark Dundon? A. I recall speaking to Tonya House. Q. You recall -- are you recalling a specific telephone conversation you had with Tonya House? A. Yes. Q. Was that in December of 1999? A. Yes.

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A. I don't remember that. Q. Did Tonya House at that time tell you that she thought that Mark Dundon was repulsive or vile? A. I remember the word "repulsive" or something to that effect. Q. Do you remember whether Tonya House told you that Mark Dundon had said that Ms. House reminded him of his ex-girlfriend? A. No, I do not remember that. Q. Do you remember whether Tonya House told you that Mark Dundon had said to her that she had no shot at winning mother of the year? A. No, I do not remember that. Q. For these questions that you've said "I don't remember that," do you mean you don't remember one way or the other whether she told you that? A. I don't remember hearing that. Q. Did Tonya House at that time tell you she was uncomfortable with the closed-door meetings that Mr. Dundon required her to be in? A. I do not remember that. Q. Did Tonya House at that time tell you that Mark Dundon had made comments to Ms. House and Ms. Pulse characterizing business meetings they were having as "cookie breaks"?

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A. I don't remember that. Q. Did Tonya House at that time tell you that Mark Dundon had ripped her Christmas cards off the wall and threw them at her? A. I don't remember that. Q. Did Tonya House at that time tell you that Mark Dundon had yelled and screamed at her? A. I remember that she was upset because he had yelled and screamed. Q. At that time did you suggest that Ms. House sit with Mr. Dundon in an office and have a conference call with you? A. No, I would not do that. Q. So, you dispute the contention that you suggested that Ms. House sit in an office with Mr. Dundon and have a conference call with you? A. Yes. Q. Do you dispute that Tonya House told you at that time that she didn't think she should be in another closed-door meeting with Mr. Dundon? A. I don't remember that. Q. Did Tonya House ask you not to call Tony Schnurr because Mark Dundon was his right-hand man? A. I don't remember that. Q. Did you ever hear Tony Schnurr introduce Mark
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Dundon? A. That was the gist of it. Q. And that she was very upset? A. Correct. Q. Did you do anything regarding this telephone conference at any time? A. Yes. Q. What did you do? A. I called Tony Schnurr. I told Tonya that I needed to call Tony Schnurr. Q. How did Tonya react when you said that you needed to call Tony Schnurr? A. I can't recall. Q. When did you call Tony Schnurr? A. That -- immediately, as soon as possible, after I hung up with Tonya. Q. What did you tell Tony Schnurr? A. I can't recall the specifics, but I told him that Tonya was very upset and said that she could no longer work with Mark Dundon. Q. What else do you recall about that conversation? A. Not much. Q. Anything? A. The conversation with Tony -- I think that
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Dundon as his right-hand man? A. No. Q. Did you ever hear Tony Schnurr introduce Mark Dundon as his mouthpiece? A. No. Q. We were talking about a telephone conference that you had with Tonya House in December of 1999. Do you know whether Mark Kolon was on the phone for that conference call? A. I do not know. Q. At the time that Ms. House had this telephone call with you, did you consider it to be a complaint of harassment? A. I considered that she was very upset and said she did not want to work with Mark Dundon anymore. Q. Did you ask her why? A. I probably did. Q. But you don't remember? A. I can't recall the specific conversation of five years ago. Q. So you recall that there was a conversation, but you can't recall specifically what was said? A. That's correct. Q. You do recall, however, that Tonya House was telling you that she didn't feel she could work with Mark

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Mark was not -- Mark was leaving for Idaho. Mark was returning to Idaho that evening on a prearranged trip, because we must have discussed whether he should come back or not. Q. You believe that you discussed whether Mark Dundon should come back or not when you spoke with Tony Schnurr? A. Yes. Q. What do you remember about that part of the conversation with Tony Schnurr? A. That is all I remember. Q. Do you remember whether you or anyone reached a conclusion as to whether Mr. Dundon should go back to Denver at that time? A. I had not reached a conclusion at that time. Q. Is that all you can remember about your conversation with Tony Schnurr? A. Yes. Q. Did you do anything after that relating to this complaint against Mark Dundon? A. No. Q. Why not? A. Because Tony said that he would handle it. Q. He said that he would handle it when you had the telephone conference with him that day?

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A. Yes. Q. I'm sensing that you're hesitant to speak for some reason, and that as I continue to ask you more questions you're filling in your testimony. I'm not asking you for specific words that people used, but I am entitled to your best memory as to what happened during these conversations. Do you understand? A. Yes, and I'm giving you my best recollection. MS. HOLMES: I object to the characterization of what her motives are. Q. (BY MS. RYAN) I'm not characterizing her motives at all. I'm just sensing a hesitancy here, because you just told me a couple minutes ago that that's all you could remember about the conversation with Tony Schnurr. Now you said that at that time he said he would handle it. So I just need a complete description of your best memory of these events as we go through. Okay? A. I understand. And I am trying, for the record, to give you my best memory. Q. Okay. As HR director, did you do anything further to investigate Ms. House's complaint against Mark Dundon? A. No, I did not.
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A. As far as I know and remember. Q. Mark Dundon had transferred from Idaho to Denver to take the job as general manager in Denver? A. He was acting as an interim general manager. Q. Is it your testimony, then, that Mark Dundon had not been assigned to the Denver dealerships as a general manager on a more long-term basis? A. I don't know. Q. What makes you say that he was acting as an interim general manager? A. I say that simply because I don't know what the long-term plan was for Mark Dundon. Q. Do you know who would have been the person deciding what the long-term plan was for Mark Dundon at that time? A. Most likely, Tony Schnurr. Q. So, Mark Dundon had moved from Idaho to Denver to work as a general manager. And then after Tonya House made her complaint, he was transferred back to Idaho; is that correct? A. He never came back to Larry Miller Denver. Q. His employment wasn't terminated at that time, was it? A. No. Q. He went back to Idaho?
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Q. Did Mr. Schnurr tell you what he planned to do to handle it? A. Specifically, no, other than that he was going to call the people who had -- Tonya and whomever else he needed to speak to. Q. So, you and HR did not discipline Mark Dundon? A. That's correct, I did not. Q. Do you know whether anyone in the Larry Miller Group disciplined Mark Dundon as a result of the complaints -- or the complaint, at least one, that Tonya House had made? A. I do not know what they said to Mark Dundon or what Mark Dundon said to Tony. Q. Do you know whether the company ever reached a conclusion as to whether or not Mark Dundon had engaged in harassing behavior in violation of the Larry Miller policies? A. I do not know if a conclusion was made as to if there had been a violation of Larry Miller policies. I do know that Mark Dundon was not sent back to Larry Miller Toyota. Q. Mark Dundon had only been working at Larry Miller Toyota in Denver for about two or three weeks at this point in time?

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A. Yes. Q. Was he put in charge of -- strike that. After Mark Dundon moved back to Idaho, did Larry Miller put him in charge of two dealerships there? A. What I recall is that he went back to the same position he had held previously, which I believe was general manager of two dealerships. Q. Do you remember conducting a human resources training session in Denver in April of 2000? A. I remember being in Denver at various times. I don't recall exact dates. Q. I'm handing you a document that's been produced by the defendant in this case, and it's numbered 296 at the bottom. Do you recognize that document? A. Yes, I do. Q. Do you see your handwriting anywhere on that document? A. Yes. Q. That document is an office managers' meeting agenda for April 20th through the 22nd of 1999; is that correct? A. That's correct. Q. I'm handing you what has been marked as exhibit -- not been marked as an exhibit yet, but it's been produced by the defendant, and it's marked on the

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bottom No. 300. Do you recognize that document? A. Yes. Q. It's an office managers' meeting agenda for April 11th through the 13th, 2000; correct? A. Yes. Q. Does this document help to refresh your recollection as to whether you conducted an HR training session in Denver in April of 2000? A. I don't know how this document relates to your question. I can recall being in Denver, but I don't have dates of all my visits in mind. Q. Have you -- is this an agenda that you prepared, looking at document No. 300? A. No, I didn't prepare this. MS. HOLMES: Just for clarification, I think these are meetings held in Salt Lake. THE WITNESS: Yes. MS. HOLMES: So there's a miss -- sort of -Q. (BY MS. RYAN) Okay. I appreciate that. Do you remember conducting? A. Oh, see, what you're -Q. Yeah. I'm just trying to get a clarification. I don't need a date. Do you remember holding an HR training session in Denver in the year 2000?
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Q. Yes. A. Yes. Q. Did you respond by saying no? A. I can't recall exactly what I said, but we do follow the policy. Q. Did Tonya House or Roberta Pulse ever ask you what had happened to Mark Dundon as a result of the complaints against him? A. Yes, they did. Q. Did they ask you whether Larry Miller flew to Idaho -- strike that. Did they ask you whether the individual, Larry Miller, flew to Idaho to personally reprimand Mark Dundon? A. Yes, they did ask me that. Q. What did you tell them? A. No, he did not do that, as far as I'm aware. Q. Do you know whether Nicole St. John ever complained to management that Mark Dundon was inappropriate to women? A. I don't know Nicole St. John. Q. Do you know whether a female employee ever complained that Mark Dundon asked her if she had sex with the customers to get good CSI scores? A. I have never heard that.
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A. I was probably there in the spring and fall, were normally the times of my meetings. Q. Do you remember, after presenting a session on discrimination and harassment, whether Tonya House said to you, "You'll forgive me if I don't believe you, because that's not necessarily how it happens," or words to that effect? A. I recall words to that effect. I cannot tell you for a fact it occurred -- when it occurred. Q. But you do recall Ms. House saying words to that effect after a training session that you conducted? A. I recall those words. I don't recall the context of the training session, but that could have been. Q. When Tonya House said, "That's not necessarily how it happens, is it," did you respond by saying, "No"? A. That's not necessarily how what happened, is it? What is the question? Q. Tonya House approached you after a training session that you were conducting and said, "You'll forgive me if I don't believe you, because that's not necessarily how it happens, is it?" Do you recall that conversation? A. Yes. Referring to the training on policy?

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Q. Did Tonya House or Roberta Pulse ever make complaints to you about Bob Cockerham? A. Yes. Q. What kinds of complaints did they make to you regarding Bob Cockerham? A. I recall Roberta Pulse telling me that Bob was yelling and screaming and demeaning, or something to that effect. Q. Do you remember Roberta Pulse telling you that Bob Cockerham was belittling her? A. I can't recall her specific words. Q. But you do recall that Roberta Pulse told you that Bob Cockerham was yelling and screaming and demeaning, or words to that effect; correct? A. Yes. Q. Do you remember when that was? A. I remember that as being in June of 2001. Q. Did you ever tell Tonya House or Roberta Pulse, "I don't know how you've lasted this long," or words to that effect? A. No. Q. Did you ever question Tonya House or Roberta Pulse as to how they continued to work for the Larry Miller Group? A. No.

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Q. Did you ever quit your employment with Larry Miller Group? A. I resigned in June 2001. Q. Why? A. Because I wanted to spend my time with my daughters. Q. Have you ever considered the Larry Miller Group to have an atmosphere which is demeaning or degrading toward women? A. No. Q. Did Tonya House ever tell you that she thought the Larry Miller policies were a joke? A. I don't recall specific words. Q. Do you recall her saying words to that effect? A. Only in the context of what we just previously discussed. Q. What do you recall about that? A. We just discussed about the training session, although I'm not sure it was after training. But when she -- I can't recall what she said. "That's not the way it works," or something to that effect. Whether or not she said, "This is a joke," I don't remember. Q. Did Roberta Pulse ever tell you that Tony Schnurr had made it clear that he did not want her
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June. Q. Did Roberta Pulse ever tell you that she couldn't take another tongue lashing from Bob Cockerham, and she had been told that she could transfer to the Used Car Superstore? A. She told me she could not work for Bob Cockerham anymore and that he had yelled at her and that she wanted to transfer. Q. Was this in a telephone conversation? A. Yes. Q. Was this shortly before her termination or within that same first week of June? A. Yes. Q. What did you tell Roberta Pulse in response? A. That to transfer she needs the written approval of both general managers. Q. Do you dispute the contention that you told her that she only needed the approval of the general manager of the Used Car Supermarket? A. Yes. You need the approval of two -- both general managers. Q. Do you dispute the contention that you told her at that time that she shouldn't have to work in that kind of an atmosphere? A. I don't recall saying that.
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around? A. No. Q. Or words to that effect? A. No, I don't recall that. Q. Did Roberta Pulse ever make any complaints to you about Tony Schnurr? A. No, her complaint was about Bob Cockerham. Q. She made her complaint about Bob Cockerham to you before her employment was terminated by Larry Miller Group? A. Yes. Q. Did Roberta Pulse complain to you that the Larry Miller Group had come to her office with no forewarning and converted the computer system? A. I don't recall that. I recall that she could not log on to the computer. Q. When do you recall that Ms. Pulse could not log on to the computer? Shortly before her termination? A. Yes. Q. That's the same day or a couple days before? Was it right around the time of her termination? A. Within what would be right around. I don't know if it was that day or within -Q. Within the week? A. The week of June, June 2001. First week of

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Q. Do you deny that you said that? A. Restate the exact question. Q. Did you say something to the effect of -that Roberta Pulse should not have to work in that type of an atmosphere? A. The only part I recall is telling her that, "I can understand it would be difficult to come to work every day if you're faced with feeling" -- or something to that effect. Q. Did you then tell her that she could transfer over to the Used Car Supermarket if she had Richard Newendyke's approval? A. Richard Newendyke and the other general manager's, as well. It requires two written signatures. Q. Are you saying that she would have had to obtain the written signature of Bob Cockerham, the supervisor about whom she was complaining? A. Yes, or -- if she could not get the signatures of both general managers or they could not come to terms, it would require the approval of the operations manager. Q. That would -A. Tony Schnurr. Q. Tony Schnurr. Did you tell Ms. Pulse that she could get the signature of Tony Schnurr instead of

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Bob Cockerham? A. I don't recall specifically telling her that. I reminded her what the transfer policy was, which she would already have known as the office manager. Q. Did you consider Ms. Pulse's complaint about Bob Cockerham to be a complaint of discrimination or retaliation? A. I just accepted what she said, that she could no longer work for Bob Cockerham. At that time I did not define it or judge it. Q. Did you consider whether you would need to make an investigation into what Ms. Pulse was saying about her general manager, Bob Cockerham, that he yelled at her and screamed at her? A. That's always a consideration when an employee has a complaint. Q. Did you investigate that complaint? A. No. I was in the process of leaving the company myself. I told her that, unfortunately, I would be leaving, but there was another HR director selected. Q. They had already selected another HR director at that time? A. Yes. Q. Did you pass along this information, Roberta Pulse's complaint about Bob Cockerham, to the new HR
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Q. Were you consulted in any way about the decision to terminate Roberta Pulse's employment? A. Not that I recall. Q. Did you have an understanding as to why Roberta Pulse's employment was being terminated at that time? A. I believe she was being terminated for accounting irregularities. Q. Any other reasons -MS. HOLMES: Object to the form of the question. Q. (BY MS. RYAN) -- that you know of? A. I don't know of any other reasons. Q. Did you think that Roberta Pulse was justified in not going back to Larry Miller Toyota, based on her complaints that Bob Cockerham yelled and screamed at her on a daily basis? MS. HOLMES: Object to the form of the question. THE WITNESS: Justified in not -- rephrase Q. (BY MS. RYAN) Do you believe that Roberta Pulse was justified in not going back to Larry Miller Toyota where she was reporting to Bob Cockerham, whom she
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director? A. Yes. She came on board -- she came on board the day Roberta transferred herself to the Used Car Supermarket. Q. Did you pass along Roberta Pulse's complaint about Bob Cockerham to the new HR director? A. I believe we gave her the background, but her first day of work was the day that Roberta self-transferred and I believe was terminated. Q. Did you make any notes of Roberta Pulse's complaints to you about Bob Cockerham? A. No, I do not have notes. Q. Did you pass along any written documentation to the new HR director regarding Roberta Pulse's complaint about her manager, Bob Cockerham? A. No. Q. You said you believe that you gave the new HR -- new HR director the background. What do you mean by that? A. Well, I think that she came in the day that Roberta was self-transferring and was subsequently terminated. I can't recall specifically what we talked about. Q. Were you involved in the decision to terminate Roberta Pulse's employment?

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had complained had yelled at her and screamed at her? MS. HOLMES: Object to the form of the question. THE WITNESS: I don't know. MS. HOLMES: Is this a good time for a break? THE WITNESS: I could use one. MS. HOLMES: Is that okay with you, Kim? MS. RYAN: Sure. (A recess was taken.) Q. (BY MS. RYAN) Do you believe that the Larry Miller Group has a duty and responsibility to provide a harassment-free work environment? A. Yes, I do. Q. What does your company, Ashburn HR, L.L.C., do? A. HR consulting. Q. What does that encompass? A. I just helped some small businesses establish their HR policies. It was not full-time focus at all, it was just a small thing to do while I was concentrating on the MBA. Q. Did you have any employees? A. No. Q. Are you still working in Ashburn HR, L.L.C.? A. I haven't done anything with it in a while.

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Q. Have you ever been a witness in any case for sexual harassment with discrimination? A. I have not. Q. Do you do any expert witness work? A. No. Q. As HR director to Larry Miller Group, did you have an understanding as to the Larry Miller policies regarding equal employment opportunity, retaliation and harassment? A. Yes. Q. Do you know who developed those policies? A. I developed them, along with attorneys for the Larry H. Miller Group. Q. What is your understanding of the Larry H. Miller Group's policy on equal employment opportunity? A. That employment decisions are made without regard to the protective classifications, such as age and race and national origin, gender, religion, et cetera. Q. What is your understanding of the Larry H. Miller Group's policies on harassment? A. Harassment -- the harassment policy mirrors the federal EEOC policies prohibiting discrimination in employment based on protective classifications. Q. Do you have an understanding as to what Title 7 is?
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Q. In 2000, did Larry Miller -- the Larry Miller Group have policies regarding discipline? A. Discipline -- there were discipline guidelines at some point, but I don't recall if it was June 2000 or when. Guidelines listed examples of situations, but there's no all-encompassing set of rules for discipline. Q. Can you please list the types of discipline that were available to Larry Miller Management in June of 2000? MS. HOLMES: Object to the form of the question. THE WITNESS: Is there a response to the objection or do I continue? Q. (BY MS. RYAN) Just continue. A. There were -- there was not a set list of progressive discipline or disciplinary procedures. Q. In June of 2000, was one of the options available to managers to discipline employees a written warning? A. A written warning, yes. Q. In June of 2000, was one of the options available to discipline employees a verbal warning? A. Yes. Q. Handing you the Larry Miller Group Response
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A. Yes, I do. Q. What is your understanding? A. It's -- Title 7 is a portion of the Civil Rights Act in 1964 that prohibits discrimination based on a number of protected categories. Q. In June of 2000, did you have an understanding as to whether gender-based or sex-based discrimination and/or harassment was a violation of federal law? A. Yes. Q. Did you have an understanding that sex-based harassment and discrimination violates federal law? A. Yes. Q. In June of 2000, did you have an understanding as to whether retaliation based on someone's protected conduct was a violation of federal law? A. Yes. Q. What was your understanding? A. Restate. Q. Did you understand in -- I'll just make it easier. Did you understand in June of 2000 that retaliation based on complaints of sex-based discrimination was a violation of federal law? A. Yes.

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to Request for Information that was provided to the EEOC. Within this response Larry Miller Group provided an employee handbook, and I'm showing that to you now. Have you ever seen this handbook before or a Larry Miller employment handbook before? A. Yes, of course. Q. You helped to create the handbook? A. Yes, I did. Q. Referring you to page 19, at the top it says Disciplinary Information. A. Yes. Q. Near the middle -- and this, if I understand, is a partial list of conduct that can result in disciplinary action up to and including termination; is that correct? A. Yes. Q. What types of disciplinary action are there, besides termination? A. Of course, those you just mentioned, a verbal warning, a written warning, a -- I guess there could be a considerable number, the lack of advancement opportunity. Q. Demotion? A. Demotion. Q. I'm really just trying to get out what it means here in the handbook when it says "up to and

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including termination," if there are other things besides what you have listed. We've discussed written warning, verbal warning, lack of advancement opportunity, demotion. A. You know, there could be other things, as well. And I think a lot would depend upon the situation, and that's why there's not a set list that would include every possible scenario. Q. I understand. I'm just asking you as HR -when you were the HR director -A. Right. Q. -- what options management has in terms of discipline. A. Verbal warning, written warning, lack of advancement or lack of promotion, time off work, and possibly others. Q. About halfway down this list on page 19 of the Larry Miller handbook, as part of this partial list of conduct that can result in disciplinary action, it states, "failing to report to work without adequate justification." What does that mean, "without adequate justification"? A. Well, that could also depend on the situation. Certainly, somebody who does not report to work without calling or notifying their supervisor is, in
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duty to follow the policies against harassment and discrimination? A. Yes, I do. Q. Is it true that the Larry Miller Group commits to make a confidential investigation of all complaints? A. Yes. Q. Is it true that, according to Larry Miller employment policy, any supervisor or other employee who has been found after proper investigation to have discriminated against or sexually harassed another employee will be subject to appropriate sanctions and discipline, depending on the circumstances, which may include termination? A. Yes. Q. Is it true that it's the policy of Larry Miller not to retaliate against any person regarding a charge of employment discrimination or harassment? A. Yes. Q. Is it true that protection against employer retaliation under the Larry Miller employment policy applies not only to the complaining employee, but to all other employees who might participate in any investigation? A. Yes.
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effect, a no-show, would be considered not adequate justification. Q. Are there circumstances under which -- well, based on this language, it appears that there are circumstances under which there would be adequate justification for not reporting to work; is that true? A. Yes. Q. Do you think that an employee's perception that she was working in a hostile work environment would be adequate justification? MS. HOLMES: Object to the form of the question. THE WITNESS: I don't know. Q. (BY MS. RYAN) Okay. Larry Miller Group promises to create an environment of mutual trust and respect, doesn't it? A. Yes. Q. There's a mission statement on page 2 of the Larry Miller handbook in which Larry Miller commits to this mission to make, quote, Our dealerships a place where people want to work and do business, end quote. A. Yes. Q. That's correct? A. (Witness nods head.) Q. Do you think that managers have a heightened

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Q. Is it true that this protection against retaliation applies, regardless of the validity of the complaining employee's charge? A. Yes. Q. Did Tony Schnurr ever ask you for any advice or guidance with respect to the complaint that was lodged against Bob Cockerham by Roberta Pulse? A. No. Q. Do you know whether Tony Schnurr has ever attended any training sessions that you have held regarding discrimination or harassment? A. Yes, he has. Q. Do you know how many occasions he's attended your trainings? A. I would estimate in approximately the time that I was HR director he was here, and we held general manager meetings twice a year or more. And so -- a topic at each of those meetings. So eight to ten times. Q. Based on your training and experience as an HR director, if a male manager ripped Christmas cards off of his female subordinate's wall and threw them at her, would you consider that harassing conduct under the Larry Miller policies? MS. HOLMES: Object to the form of the question.

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THE WITNESS: Well, it may or may not be. It would depend on a lot of other factors in that situation. Q. (BY MS. RYAN) Is there any instance in which ripping down an employee's Christmas cards off of her wall and throwing them at her, by the general manager, would not be considered harassing conduct? A. It's certainly unprofessional. Q. That's a little different from my question. I'm asking you if there are any circumstances you can think of under which a male manager going into a female subordinate's office and ripping off Christmas cards and throwing them at her would not be considered harassment. MS. HOLMES: Object to the form of the question. THE WITNESS: It's rude and unprofessional. Q. (BY MS. RYAN) In your -- based on your training and experience, is it harassing? MS. HOLMES: Object to the form. THE WITNESS: I will stick to the answer. It depends on the circumstances. Q. (BY MS. RYAN) How? A. It depends on the background of that situation. Q. Why? A. The behavior is unprofessional and may or may
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air, pinning her in against the wall, leaned up against her so she could feel his breath on her face, do you consider that a violation of the Larry Miller policy against harassment and hostile work environment? MS. HOLMES: Object to the form of the question. THE WITNESS: Repeat the question, please. Q. (BY MS. RYAN) If a female employee was standing against a wall and her male manager approached her and put his hand against the wall, pinning her into the wall and got so close that she could feel his breath on her face, would you consider that to be a violation of the Larry Miller policies against harassment and hostile work environment? MS. HOLMES: Object to the form of the question. THE WITNESS: That could be -- I would want to know, of course, the specifics. Q. (BY MS. RYAN) If that employee had already notified her male manager that she didn't want him to touch her and he, nevertheless, pinned her against the wall, with his arm against the wall, and got so close to her face that she could feel his breath, would you consider that to be harassment or hostile work environment in violation of Larry Miller's policies?
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not be harassing, depending on if it is based on her gender. Q. If a male manager goes into his female subordinate's office and tries to rub her shoulders and massage her, based on your experience and training in HR, do you consider that to be harassing? A. Assuming that was unwelcome. MS. HOLMES: Object to the form of the question. We talked over each other. I need to object to the form of the question. Now you may answer. THE WITNESS: Yes, assuming that it was unwelcome. Q. (BY MS. RYAN) If a female employee had notified her manager that she did not want him to touch her and yet he continued to try to massage her shoulders, based on your training and experience as an HR director, would you consider that to be a violation of Larry Miller's policy against harassment? MS. HOLMES: Object to the form of the question. THE WITNESS: Most likely. Q. (BY MS. RYAN) If a male manager -- strike that. If a female employee was standing against the wall and the male manager came and put his arm up in the

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MS. HOLMES: Object to the form of the question. THE WITNESS: That could be. Q. (BY MS. RYAN) If a male manager went into his female subordinate's office and tried to remind -strike that. If a male manager went into a female's office -- his female subordinate's office and tried to massage her shoulders and then she told him to stop and then he ripped her Christmas cards off the wall and threw them at her, would you consider that a violation of Larry Miller's harassment policy, based on your training and experience as an HR director? MS. HOLMES: Object to the form of the question. THE WITNESS: Well, again, that could be; depends on the total circumstances. Q. (BY MS. RYAN) Is there any circumstance under which you can think that that would not be a hostile work environment? A. No. My point is in all cases one needs as much information as possible to evaluate it. Q. Did you find out the information necessary to evaluate Tonya House's complaints against Mark Dundon? A. No, I reported her complaint to Tony Schnurr.

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Q. Did Tony Schnurr ask you for any advice or guidance regarding the report of discrimination relating to Mark Dundon? MS. HOLMES: Objection, form of the question. THE WITNESS: I don't recall, as I stated earlier, Tonya's specific conversation to me, but that she was very upset and that she did not want to work for Mark Dundon any longer. And that's what I remember reporting to Tony. Q. (BY MS. RYAN) I'm asking you whether Tony Schnurr ever asked you for advice or guidance with respect to the report that Tonya House made that you conveyed to him? A. No, he did not. Q. If a male manager said to his female subordinate, "Red heads are wild in bed, sex in bed is great with redheads" and asked her if she had a burning bush, would you consider that to be a violation of Larry Miller's policies, based on your training and experience as an HR director? A. Most likely. I don't know the full context. Q. If a male manager also said to female subordinate employee that, "She's too old for him, but he'd fuck her anyways," based on your training and experience as an HR director, would you consider that to
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harasser to stop, because they are fearful of retaliation of some sort"? A. Yes, that's what it says, but I don't recall what the original source was. Q. Did you try to be accurate when you prepared this document before training of the Larry Miller employees? A. As best as I can remember, yes. Q. Is it fair to say that you thought that that was an important note, that almost half of the targets are afraid to complain because they're afraid of retaliation? A. I think that's important, yes. Q. Would you be surprised if Roberta Pulse said that she didn't complain immediately because she felt intimidated by Mark Dundon? A. That she didn't complain immediately to whom? Q. To HR. A. I am surprised. Q. Did Roberta Pulse ever complain to you that Bob Cockerham had taken car deals away from her? A. No, she did not. Q. Do you know whether Roberta Pulse ever reported harassment by Bob Cockerham to Clark Whitworth? A. I don't know.
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be a violation of Larry Miller's policy against hostile work environment? A. Most likely, depending on the full context. Q. Do you believe that almost half of the targets of sexual harassment are reluctant to complain or tell the harasser to stop, because they're fearful of retaliation of some sort? A. I believe that's been reported. Q. Do you believe that you reported that? A. As -- I was not the source. I don't recall the source. Q. I'm showing you documents that have been produced as part of this litigation by the defendant. They're numbered at the bottom 303 and 304. It says, "Larry H. Miller Group of Companies Sexual Harassment Training, Prepared July 1997 by Carolyn Ashburn, HR Associate." Do you recognize that document? A. Yes, I do. Q. Did you use that document to train Larry Miller employees about sexual harassment? A. At that time, 1997. Q. And at that time, as part of your sexual harassment training, you said in this document that "almost half of" -- where is that -- "of the targets of sexual harassment are reluctant to complain or tell the

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Q. When did you leave Larry Miller Group the first time? A. June 2001, first week or thereabouts. I don't remember how the calendar falls. Wait, I'm sorry, you said first time? Q. Yes. A. June of 1995. Q. So you've had -A. Are you referring to the Winning Spirit job? Q. No. Actually, you're right, it is a little confusing, because you've had more than one job with Larry Miller. I was just trying to determine when you stopped your position as HR director. And that was in or about June of 2001? A. Yes. Q. Have you trained the management team on how to respond to sexual harassment complaints? A. Yes. Q. What did you tell them? A. I will not be able to recall all the training sessions now, especially since I've been away from it for several years. But the gist of it was if there was a complaint, it needs to be treated with care and confidence. The managers who it has been reported to need to talk to the person who's made the complaint, the

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person against whom the complaint is made, and to evaluate the situation in the full context. Q. If someone on the management team received a report of harassment and then simply said, "It's a he said/she said scenario," and didn't do anything further, would that be consistent with the instructions that the managers have received pursuant to the Larry Miller policies and guidelines? MS. HOLMES: Objection to the form of the question. THE WITNESS: Well, there are he said/she said situations. Q. (BY MS. RYAN) If there are he said/she said situations, does that simply mean that the manager has no duty to pursue any kind of investigation? A. No. What I was about to say is: But it requires some investigation to make that determination that there's one word against another. Q. Did Clark Whitworth ever attend any of your training sessions regarding sexual harassment discrimination? A. He was also at the general, annual, semiannual general managers' meetings, yes. MS. RYAN: Let's mark this as an exhibit. (Deposition Exhibit No. 1
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A. Yes. Q. And the second one is Larry H. Miller Group of Companies Sexual Harassment Policy; is that right? A. Yes. Q. That policy was distributed to the general managers of the different car dealerships; is that true? A. It included the car dealerships, yes. Q. Did that sexual harassment policy replace any other policy contained in the employee guidebook or handbook? A. As I recall, it was a broader policy than the previous one, which I can't give you a date on. Q. As of April of 1999, this policy that you distributed was the Larry H. Miller Group of Companies Sexual Harassment Policy? A. Yes. And then -- yes, this is the sexual harassment policy from on or around April '99. It may have actually come out prior to this memo, but I can't be sure. Q. So, the second page of Exhibit 2 was the sexual harassment policy in effect at the Larry H. Miller Group of Companies in 1999, after you distributed it? A. Yes. (Deposition Exhibit No. 3 was marked for identification.)
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was marked for identification.) Q. (BY MS. RYAN) Do you believe that sexual harassment can take place in a few seconds? A. Yes, it's possible. Q. Do you think that there's a difference between a policy and a guideline? A. Yes, I do. Q. What is the difference, in your mind? A. A guideline might list some examples of situations or issues, depending on what it's written for, what the purpose is. Generally, a policy is not examples, but parameters. (Deposition Exhibit No. 2 was marked for identification.) Q. (BY MS. RYAN) Let me hand you Deposition Exhibit No. 2 consisting of two pages that have been provided by the defendant in this action. They're labeled 287 and 288 at the bottom; is that correct? A. 97. Q. 297 and 298. Do you recognize these documents? A. Yes, I do. Q. The first one is a list of policies and guidelines that you provided to general managers in 1999; is that correct?

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Q. (BY MS. RYAN) Do you recognize Exhibit 3? A. Yes. Q. What is it? A. It's a summary of an EEOC press release, I think. Q. Did you use it as part of training for the Larry Miller Group of Companies? A. Yes. Q. Did you distribute it to the employees who attended the training? A. Probably. I don't know which employees got this. Q. And this is about an EEOC settlement of a racial harassment suit against a car dealership? A. Yes, correct. Q. What was your purpose in distributing this as part of your training? A. I tried to provide ongoing training and cover all the various protective categories, and I tried to make it timely and relevant. So I think that this article is timely and relevant and discussed one of the protected categories. MS. RYAN: Let's mark this. (Deposition Exhibit No. 4 was marked for identification.)

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Q. (BY MS. RYAN) Do you recognize Exhibit 4? A. Yes. Q. What is it? A. It's entitled Current Issues in Harassment What Managers Need to Know. It is a -- includes some current information from Michael O'Brien, the local attorney for the Society of HR Management in Salt Lake. Q. Did you prepare the document? A. Yes. Q. And you were preparing it to forward to the employees of the Larry H. Miller Group? A. I believe it was a training document. I don't know which employees received this. I can't remember which employees received this. Q. Did you consider it to be accurate information at the time that you prepared it? A. Yes. Q. Do you think as an HR director for Larry Miller Group -- I should say did you think, as the HR director for the Larry Miller Group, that it was important for managers who receive a complaint of discrimination to document the complaint? A. Generally, yes. There are situations I guess it could be a verbal. Q. Why do you think that it's important to
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A. I believe that the receptionist sent copies to the dealerships, and I don't recall if it was electronic, fax, or hard copy or some combination thereof. Q. You used this HR report dated September 15th, 2000 to advise the managers, in part, not to retaliate. Was that one of the purposes? A. Advise, alert, inform about issues. Q. You advised or informed or alerted the managers at that time that retaliation can result in damages for a million dollars; right? A. I suppose. Can I see it? Q. Sure. A. I can't remember. Q. You listed two cases. I'm wondering why you listed those cases or why you highlighted those cases for the managers. A. I can't remember why these particular cases were selected. The goal of this newsletter, though, is just -- was to keep HR topics fresh on people's minds. And my sources were the EEOC or SHRM or other credible sources. The content came from, I felt, credible sources and was not -- this was not specifically presented for a particular reason, other than to keep the
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document complaints of discrimination? A. I think that in many situations it's helpful to have a record for recall. Q. Is it also important so that management can determine if there's any kind of a pattern or practice of discrimination going on within the company? MS. HOLMES: Object to the form of the question. THE WITNESS: There needs to be a collective knowledge that will specify, I guess, how that comes about. (Deposition Exhibit No. 5 was marked for identification.) Q. (BY MS. RYAN) Do you recognize Exhibit 5? A. Yes, I do. Q. What is it? A. This is an HR Report I prepared dated September 15th, 2000. It's a -- it's a source of HR information for managers in their company, a summary of relevant information on retaliation. Q. Did you distribute this HR report to the managers at the Larry H. Miller Group of Companies? A. No. It should have been distributed to them. Q. What is the method for distributing this HR report? What was the method at that time?

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topics current in people's minds. Q. Based on your training and experience as an HR director, if a member of the management team said that, "He would not hire a female employee, not even a dike," would you consider that to be a discriminatory statement under the Larry Miller policies? MS. HOLMES: Object to the form of the question. THE WITNESS: It possibly could be. I can't think of the circumstances. Q. (BY MS. RYAN) Is it hard to think of circumstances under which that comment would not be discrimination? A. I have a hard time thinking of discrimination maybe opposite of what you're implying. Q. There's been testimony that Dan Ware, one of the parts managers, said that, "He didn't like to hire women, not even dikes, for his parts department." A. I never heard Dan Ware say that. Q. If you had heard a comment like that, would you consider that to be discriminatory, based on the Larry Miller policies? MS. HOLMES: Object to the form of the question. THE WITNESS: I would have to know why he

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said that and did he say that and where did he say that. I would have to consider this whole situation in context. But I've never heard him say anything like that. Q. (BY MS. RYAN) Is it true that Tony Schnurr said that he would handle the complaint that Tonya House lodged against Mark Dundon? A. Yes. Q. Is it true that Tony Schnurr said that he would handle the complaint that Roberta Pulse lodged against Bob Cockerham? A. I don't recall the specific conversation. MS. RYAN: I have no further questions at this time. MS. HOLMES: No questions. MS. RYAN: In this case the parties have entered into an agreement that we will keep the confidential testimony confidential, along with documents that are marked confidential. I wanted to make sure that you understand and agree to keep the testimony and the documents confidential. THE WITNESS: I understand and agree. MS. RYAN: Thank you. (The deposition was concluded at 4:21 p.m.)

CERTIFICATE STATE OF UTAH ) : ss. COUNTY OF SALT LAKE) THIS IS TO CERTIFY that the deposition of CAROLYN ASHBURN, the witness in the foregoing deposition named, was taken before me, Karen Hourt, Certified Shorthand Reporter, Registered Professional Reporter and Notary Public in and for the State of Utah, residing at West Jordan, Utah. That the said witness was by me, before examination, duly sworn to testify the truth, the whole truth and nothing but the truth in said cause. That the testimony of said witness was reported by me in Stenotype and thereafter caused by me to be transcribed into typewriting, and that a full, true and correct transcription of said testimony so taken and transcribed is set forth in the foregoing pages numbered from 3 to 58, inclusive, and said witness deposed and said as in the foregoing annexed deposition. I further certify that after the said deposition was transcribed, a reading copy and a correction page were delivered to the witness for reading and signature before a Notary Public, and to be returned to me for filing. I further certify that I am not of kin or otherwise associated with any of the parties to said cause of action, and that I am not interested in the event thereof. WITNESS MY HAND and official seal at Salt Lake City, Utah, this 9th day of August, 2004. ____________________________ KAREN HOURT, CSR, RPR My Commission Expires: December 20, 2007

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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 25 ______________________________ NOTARY PUBLIC 1. Page ____ Line ____ Correction ________________ Reason ____________________________________________ 2. Page ____ Line ____ Correction _________________ Reason ____________________________________________ 3. Page ____ Line ____ Correction _________________ Reason ____________________________________________ 4. Page ____ Line ____ Correction ________________ Reason ____________________________________________ 5. Page ____ Line ____ Correction _______________ Reason ____________________________________________ 6. Page ____ Line ____ Correction _________________ Reason ____________________________________________ 7. Page ____ Line ____ Correction _______________ Reason ____________________________________________ 8. Page ____ Line ____ Correction _______________ Reason ____________________________________________ 9. Page ____ Line ____ Correction ________________ Reason ____________________________________________ 10. Page ____ Line ____ Correction ________________ Reason ___________________________________________ 11. Page ____ Line ____ Correction ________________ Reason ____________________________________________ ______________________________ CAROLYN ASHBURN SUBSCRIBED AND SWORN to at ____________________ this ________ day of _______________, 2004. CERTIFICATE STATE OF _____________) : ss. COUNTY OF ____________) I HEREBY CERTIFY that I have read the foregoing testimony consisting of 195 pages, numbered from 3 to 197, inclusive, and the same is a true and correct transcription of said testimony, with the exception of the corrections I have listed below in ink, giving my reasons therefor.

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