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

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 1 of 124

SCHNURR1T.txt 1

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

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO --oo0oo-ROBERTA PULSE, TONYA HOUSE, ) ) Plaintiffs, ) ) vs. ) ) THE LARRY H. MILLER GROUP, ) ) Defendant. ) ____________________________) Civil No. 03-WM-2074 (PAC) DEPOSITION OF: TONY SCHNURR Reported By: Karen Hourt CSR, RPR

Deposition of TONY SCHNURR, taken on behalf of the Plaintiffs at 9350 South 150 West, Salt Lake City, Utah, commencing at 9:00 a.m. on July 22, 2004, before Karen Hourt, Registered Professional Reporter, Certified Shorthand Reporter and Notary Public in and for the State of Utah, pursuant to Notice.

2 Page 1

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 2 of 124

SCHNURR1T.txt 1 2 3 4 5 FOR THE DEFENDANT: 6 7 8 9 10 I N D E X 11 WITNESS 12 TONY SCHNURR 13 Examination by Ms. Ryan 14 15 16 17 18 19 20 21 22 5 23 24 (Attached to the original and copy transcripts.) 25 Defendant's Supplemental Answers to Plaintiff's Second Set of Interrogatories (Retained by counsel) 131 NUMBER 1 2 3 4 E X H I B I T S DESCRIPTION Finance Director Pay Plan Pay plan notice regarding Tonya House March 5, 2002 letter to Ms. Romero Charge of Discrimination signed by Suzan Vigil MARKED 60 69 78 129 3 PAGE Judith H. Holmes, Esq. HOLMES & ASSOCIATES 7887 East Belleview, Suite 1100 Englewood, CO 80111 (303) 228-2267 A P P E A R A N C E S FOR THE PLAINTIFFS: Kimberly K. Ryan, Esq. THE RYAN LAW FIRM 283 Columbine Street, Suite 157 Denver, CO 80206 (303) 777-7585

3

1 2 3

July 22, 2004 P R O C E E D I N G S TONY SCHNURR, Page 2

9:00 a.m.

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 3 of 124

SCHNURR1T.txt 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. RYAN: Q. Mr. Schnurr, can you please state and spell called as a witness by and on behalf of the plaintiffs, having been first duly sworn, was examined and testified as follows: EXAMINATION

your full name for the record? A. My full name is George Anthony Schnurr. The

last name's spelled S-c-h-n-u-r-r, and I go by Tony. Q. I represent Roberta Pulse and Tonya House in

a lawsuit they brought against Larry H. Miller Group of Companies, and today is our opportunity to ask you questions because you've been identified as a witness in this lawsuit. Do you understand that you are not being sued individually? A. Q. A. Q. A. Q. Yes. Have you ever given your deposition before? I have. On how many occasions? Three or four. I can't recollect exactly.

If, at any time, I ask you a question today

4

1 2 3 4 5 6

that you do not understand, please let me know, and I will do my best to rephrase it for you. Otherwise, I

will assume that the testimony you give is complete and accurate. A. Q. Okay. Can you please tell me what your current job Page 3

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 4 of 124

SCHNURR1T.txt 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 position is? A. I'm senior vice president in the automotive

division, and we're referred to as operation managers. Q. A. Q. A. What entity employs you? The Larry H. Miller Management Company. How long have you held this position? It will be nine full years October 1st, so

eight and three-quarters. Q. How long have you worked with the Larry H.

Miller Management Company? A. Q. A. Q. A. Q. A. Q. A. All of that time. Prior to that, were you employed? Yes, I was. Where were you employed? For Torco Automotive. What was your position there? President. How long were you president there? Over nine years.

5

1 2 3 4 5 6 7 8 9

Q. employed? A.

Before you worked at Torco, were you

Yes, I was.

I worked for Chrysler

Corporation. Q. A. office. Q. A. Did you say the zone office? The zone office. It would be the regional Page 4 What was your position there? I held various staff positions in their zone

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 5 of 124

SCHNURR1T.txt 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 office. Q. How long were you employed by the Chrysler

Corporation? A. At that time, a little over five years. I

worked for approximately nine months for Delorean Motor Company. And prior to that, I worked for Chrysler

corporation again, but out of their Detroit zone office. Q. A. Q. A. Q. Have you ever managed a car dealership? I have. Where was that? In Chicago, for the Torco Automotive Group. Have you ever been employed in any industry

outside of the automotive industry? A. Grocery store when I was -- part-time

employment in high school. Q. Other than that, all of your employment in

6

1 2 3 4 5 6 7 8 9 10 11 12

your adult life has been in the automotive industry? A. Q. position? A. Q. position? A. Q. I have not. Can you please list your educational I have not. Have you ever been disciplined in any That's correct. Have you ever been terminated from any

background, starting from high school forward? A. I have a high school diploma, and I have a

Bachelor's of Science degree in marketing from the Page 5

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 6 of 124

SCHNURR1T.txt 13 14 15 16 17 18 19 20 21 22 23 24 25 one. University of Illinois. Q. Do you hold any other diplomas or

professional certificates? A. Q. A. license. Q. A. What kind of a sales license? In the State of Idaho, I was required to have No. Do you hold any professional licenses? No. Would a sales license -- I mean, a sales

I am required to have one. Q. A. Q. Who is that license with? The State of Idaho. What type of a license is it? It's called a

7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

sales license? A.

Is it for the automotive industry?

It's up there on the Idaho dealer agreements,

and they put me on the dealer agreement that you need to have a license. Q. suspended? A. Q. I have not. Have you had any training on equal employment Have you ever had any licenses revoked or

opportunity issues -A. Q. A. Q. A. I have. -- or harassment or retaliation? I have. Can you please list that training for me? It would have been supplied through the

Larry H. Miller Corporation, Larry H. Miller Management Page 6

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 7 of 124

SCHNURR1T.txt 16 17 18 19 20 21 22 23 24 25 Company. Q. How many trainings have you attended through

the Larry H. Miller Management Company related to equal employment opportunity, harassment, or retaliation? A. Q. A. Q. Annually. So does that mean you've attended nine? Or more. Have there been occasions in which you've

gone to both fall and spring trainings for the Larry Miller Group for these equal employment opportunity

8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

training sessions? A. We would have had those as part of our When we have

ongoing general manager education process.

the general managers gather, we always have a portion of the agenda for human resource topics. And so to say that -- I could quantify that. It would be very difficult, but it would be several weeks discussing human resource topics every agenda. Q. Based on the training that you've received

through the Larry H. Miller Group of Companies, do you have an understanding as to what discrimination is? A. Q. A. I do. What is your understanding? Could you -- I don't know. I don't

understand exactly your question. Q. What do you, based on your training from the

Larry Miller Group of Companies, understand unlawful discrimination to be? Page 7

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 8 of 124

SCHNURR1T.txt 19 20 21 22 23 24 25 A. Well, first of all, if, in fact, it's proven

discrimination, it's illegal and it's against our group policy. Q. Do you understand that discrimination based

on sex is a violation of federal law? A. Q. I do. Did you understand that discrimination based

9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

on sex is a violation of federal law in 2001? A. Q. I do. Did you understand that discrimination is a

violation of federal law in 1999? A. Q. times? A. Q. Yes. Do you have an understanding as to what I do. You did have that understanding at those

unlawful harassment is, based on your training from the Larry H. Miller Group of Companies? A. Q. I do. What is your understanding as to what

constitutes unlawful harassment? MS. HOLMES: question. THE WITNESS: again? Q. (BY MS. RYAN) Yeah. I just want to know Could you just ask the question Object to the form of the

what, based on your training, you think harassment would be. What kinds of conduct would be considered Page 8

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 9 of 124

SCHNURR1T.txt 22 23 24 25 question. THE WITNESS: Well, harassment can be harassment? MS. HOLMES: Object to the form of the

10

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

physical, it can be verbal, it can be intimidation. Q. (BY MS. RYAN) Did you, in 1999 through the

present, have an understanding that harassment based on sex is a violation of federal law? A. Q. A. Q. I do. And you understood from 1999 forward? Yes, I do. Based on the training that you've received at

the Larry H. Miller Group of Companies, do you have an understanding as to what retaliation is? A. Q. I do. What is your understanding as to what kinds

of conduct amounts to retaliation? A. No one should be punished or persecuted for

bringing forth a problem or concern against their employment and their standing within -- inside the company or their continuation. Q. From 1999 forward to the present, have you

had an understanding that retaliation is a violation of federal law? A. Q. A. Q. I do. And you understood in 1999, as well? Yes. Do you know who Mark Dundon is? Page 9

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 10 of 124

SCHNURR1T.txt 25 A. Yes, I do.

11

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 Group?

Q. A.

When did you first meet Mr. Dundon? Mark Dundon, when we bought the Wolf

Automotive Group in Boise, Idaho, he was an existing general manager in that store. Q. When did Larry Miller buy the Wolf Auto

A. Q.

Approximately April 3rd or 5th of 1997. Was Mark Dundon a general manager of more

than one dealership at that time? A. Q. No. Was he the general manager of -- what

dealership was he the general manager of? A. There was a Pontiac, Buick, Cadillac It was called Capital Motors or

dealership up there. Capital... Q.

At some point, Mr. Dundon was transferred

down to Denver to be a general manager at the Denver stores; is that correct? A. Q. No, that is not correct. Can you please describe the circumstances

surrounding Mr. Dundon's arrival in Denver? A. Certainly. In early December of '99, Reggie

Lang, who was the existing general manager of the dealership, was terminated due to the performance of the dealership.

Page 10

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 11 of 124

SCHNURR1T.txt 12

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

We asked Mark Dundon at the time to give us a hand in being an interim manager while we basically understood better what needed to take place at that dealership, and that we would develop a list of candidates, of which he was told that if he wanted to be one, he certainly could. But by no means was he given He was basically

permanent status to that position.

serving as the store manager until we finalized who would be the permanent manager. Q. Prior to the time that Mark Dundon went to

Denver, was he still managing one dealership in Idaho? A. Q. mentioned? A. Q. Pontiac, Buick, Cadillac. Do you remember a meeting in which you Yes. That was the Pontiac, Buick dealership you

introduced Mark Dundon to the employees at the Denver dealerships? A. I don't specifically remember the meeting,

but I'm sure a meeting took place to introduce him. Q. When Mark Dundon went to Denver, was he

serving as the interim manager for both the Denver Toyota and the Used Car Superstore? A. Q. Yes. Do you remember introducing Mark Dundon as

13

1

your right-hand man to the employees in Denver? Page 11

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 12 of 124

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q. A. Q.

SCHNURR1T.txt I would never say that. So you deny saying that Mr. Dundon -Yes. One thing we didn't mention at the

beginning -- I appreciate your answering my questions and that you're doing it in a timely manner. But when you

don't let me finish my question, then we'll have a choppy transcript. I'll ask you to be conscious of letting me

finish my question. A. Q. I apologize. No apology's necessary, just want to make

sure we have a clean transcript. A. Q. Okay. So you dispute an allegation that you

introduced Mark Dundon to the Denver employees as your right-hand man? A. Q. Yes, I do. Did you introduce Mr. Dundon to the Denver

employees as your mouthpiece? A. Q. No, I did not. I would not say that.

Do you recall when Mr. Dundon was installed

as a manager, whether it's interim or permanent, in Denver -- strike that, that was a bad question. Do you remember when Mr. Dundon started

14

1 2 3 4

working in the Denver dealerships? A. It would have probably been -- approximately

the following Monday after Reggie Lange's dismissal. Q. Was that in December of 1999? Page 12

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 13 of 124

SCHNURR1T.txt 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. How long did Mark Dundon stay in his position

managing the Denver dealerships? A. Q. I believe it was approximately two weeks. What happened after that caused him to leave

the Denver dealerships? A. Q. A. Why he did not return? Yes. I received a call from Carolyn Ashburn

stating -- who was our human resource director at the time -- that she had received a call from Tonya House claiming that Mark Dundon was treating her rudely, was making her feel very uncomfortable, and asked me if I would look into the situation as to why she was making the claim. I, in turn, called Tonya. And again, I don't

know the exact sequence of events, but I did get on a conference call with Tonya, with Roberta, and with who was the general sales manager at the dealership, Mark Kolon. And all of them felt that they didn't care

15

1 2 3 4 5 6 7

for the style in which Mark was, you know, running the dealership, that his management style was abrupt and they felt it to be rude or condescending. And that, quite

frankly, they said they weren't very happy and that they weren't too eager to continue if, in fact, he was going to remain the manager. With those facts in mind, I did call Mark Page 13

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 14 of 124

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

SCHNURR1T.txt Dundon, who I believe was traveling back to Idaho for the weekend. I confronted him with the statements or the He

claims or the allegations that those three had made. vehemently denied any wrongdoing.

He said he was trying

to do, you know, what he felt he needed to do to run the dealership, because it was losing a lot of money. And he

was trying to make those changes that would, hopefully, you know, slow those losses down and change some things. But when I got off the phone, I contacted my supervisor, which is Richard Nelson, who is the president of the automotive group, discussed with him the facts that Tonya and the others had made these claims against Mark, Mark had denied, you know, any wrongdoing. But I

felt that due to the fact we just removed Reggie Lang and due to the fact it was the end of the year and around the holidays, that this dealership shouldn't go through any more turmoil. And I recommended to Richard that we ask

Mark not to return and just go back to being a full-time

16

1 2 3 4 5 6 7 8 9 10

operator of the Capital dealership up in Idaho. He concurred with my recommendation. I

called Mark back and told him do not fly back to Denver that following Monday. Q. Did you tell Mark Dundon the reasons that you

were telling him not to fly back to Colorado the following Monday? A. Yes. I told him that the three employees

that I spoke to did not feel comfortable with his management style, felt that, you know, he was being far Page 14

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 15 of 124

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

SCHNURR1T.txt too abrupt with them, and that that's not what we needed at that store. And for further benefit of the

organization, that we do not need his assistance in helping us to oversee the store until we figure out who will be there on a permanent basis. Q. A. Q. A. Mark Dundon then went back to Idaho? He stayed. What position -He was still -- he never had lost his general So instead of

manager title at the Cadillac dealership.

helping the organization out, he just went back to his permanent position. Q. Who was managing the Cadillac dealership in

Mark Dundon's absence? A. He was.

17

1 2 3 4 5 6 7 8 9 10 11 12 13

Q.

So, he was managing three dealerships at that

time, the two in Denver and the one in Idaho? A. Q. A. Q. Three facilities. Three facilities? Two companies. At some point, did Mark Dundon begin managing

an additional dealership or facility in Idaho? A. Q. dealership. A. Q. Correct. After that point, did he ever obtain the GM I don't understand. You said that he was the GM at the Cadillac

title for any other dealerships, in addition to the Page 15

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 16 of 124

SCHNURR1T.txt 14 15 16 17 18 19 20 21 22 23 24 25 Cadillac? A. He was given some oversight responsibilities

later on down the road -- but I'd have to really check -for our General Motors store, which also had a Pontiac and Buick franchise out in Caldwell, Idaho. Pontiac, Buick, and GMC truck. Q. It was

But that was later on.

When you say he was given oversight

responsibilities, what do you mean? A. Well, he would basically -- he would have his

store manager out in Caldwell, which is where the other Pontiac, Buick, GMC truck dealership was located, but we had him also interfacing with that dealership just due to

18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

the fact that there was commonality between the franchises that he had in Boise. And possibly due to the fact that he had more management experience than the store manager we had there, we hoped that he could help groom that person and have us sell more General Motors product in that market. Q. A. promotion. Was that a promotion for Mr. Dundon? I don't think I would consider it a It was additional responsibility, but I would

not categorize it as a promotion. Q. Did he, Mr. Dundon, obtain more pay for the

additional responsibility that he took on at the Caldwell locations? A. He might have had a bonus, should the store, But I would I don't

you know, earn a profit or a better profit.

really have to check to be absolutely positive. Page 16

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 17 of 124

SCHNURR1T.txt 17 18 19 20 21 22 23 24 25 recall. Q. What would you do to check to find out if

Mark Dundon received additional pay for those additional responsibilities? A. Q. I would just have to check his pay records. Did you ever discipline Mark Dundon for the

allegations that were raised against him by Tonya House, Roberta Pulse, and Mark Kolon? A. I discussed with him the allegations as

19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

candidly as I could with him, at which time he denied any wrongdoing. Q. Did you come to a conclusion as to whether or

not the allegations were true? A. It basically boiled down to Tonya making the

claims that Mark had allegedly done some things or said some things, and Mark absolutely and categorically denied making those things or in those tones or in those fashions. And, quite frankly, it's just by us removing

him from the Denver oversight was all of the action that we were willing to take at that time. Q. So you did not reach a conclusion as to

whether the claims that were raised in the telephone conference with Tonya House, Roberta Pulse, and Mark Kolon were correct or accurate? A. situation. Q. So, does that mean that you did not reach a It appeared to be a he said/she said

conclusion one way or the other? Page 17

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 18 of 124

20 21 22 23 24 25

A.

SCHNURR1T.txt From my recollection, is that by us removing

Mark Dundon from returning to Denver was basically the wish of Tonya and Roberta and Mark. And when Mark left,

you know, his interim basis in Denver, I was the person who immediately -- I mean, right after Christmas, went and spent -- to do that job for a day-to-day basis all

20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

the way up until the point we hired Richard Newendyke on a day-to-day basis. So I was in the store daily, with the exception of weekends, and never again did I hear an issue from either of the three outside of the fact that they still felt very strongly that they didn't like Mark's management style. But quickly, due to the

day-to-day business at the end of the year and the beginning of the year and the day-to-day sales activities, was it ever dwelt upon to my memory at all. Q. So if I'm understanding correctly, you're

saying that you did not reach a conclusion that he had done anything harassing, and you had not reached a conclusion that he had not? A. Q. That would be a fair way to say it. We talked a moment ago about the conference

call with Tonya House, Roberta Pulse, and Mark Kolon. And I'd like for you to please tell me what you can remember, as closely as you can remember, as to what was said in that call. A. What I remember is that they felt that Mark

was very abrupt, they felt that Mark was very caustic in Page 18

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 19 of 124

23 24 25

SCHNURR1T.txt some of the directions that he had given them.

Tonya had

said that when he talked to her, that he used to stand very close to her, and she did not like anyone standing

21

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

in her personal space.

And again, that they just didn't

respect, you know, the way that he talked to them. Q. By the way, prior to that time had you had an

opportunity to observe or learn about Tonya's work for that time? In other words, did you think that Tonya was

a good employee? A. Q. employee? A. Q. Yes. When you had the telephone conference with Yes. Did you think that Roberta was a good

Tonya, Roberta, and Mark, do you remember any of them complaining that Mark Dundon would refer to meetings that Tonya House and Roberta Pulse were having as "cookie breaks"? A. Q. No. Did you take any notes of your telephone

conference with these three employees? A. I don't recall taking notes. I may have

scribbled on a piece of paper or an envelope or something, but I really don't recall doing that. Q. If you had taken any notes, is there

somewhere that you would generally keep notes of that nature? A. No. Page 19

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 20 of 124

SCHNURR1T.txt

22

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

Q.

In your trainings that you had had with the

Larry M. Hiller Group of Companies, were you trained that it was important to document complaints by employees? A. Yes, I was trained to document complaints.

But the phone call that I received from the three of them was more of an indictment of Mark's personality than them making a sexual harassment or an any other type of illegal claim. It was just they didn't care for his

management style, of which there would be far more dialogue than there was ever notes being taken. Q. Do you remember Tonya, Roberta, or Mark

complaining of Mark Dundon trying to give massages to employees in the Denver dealerships? A. Q. No. Based on your training at the Larry Miller

Group, would you consider a male manager trying to give his female subordinate employees massages as a violation of Larry Miller's policies against harassment? A. Well, I believe it would be extremely poor As it

judgment for any coemployees to be doing that.

relates to that activity, we do not condone that at the Larry Miller Group. Q. You believe it would be poor judgment, but

based on your training and experience, would you also consider it to be a violation of the harassment policy?

23 Page 20

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 21 of 124

SCHNURR1T.txt 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 A. I believe that I would -- just giving a quick

yes or no answer right now, I would have to have far more information and the frequency and a lot of other details or facts before it would -- before I could say yes or no. Q. If a male general manager had tried to

massage a female employee, she told him that she didn't want him to, and then he tried on a second occasion, she again told him that she did not want him to, based on your training by Larry Miller Group of Companies, would you consider that conduct a violation of the Larry Miller harassment policies? A. Q. Yes. If a male manager tried to massage a female

subordinate employee for a second time after she had told him not to, and then he ripped her Christmas cards off the wall and threw them at her and told her that Christmas was over, based on your training by the Larry Miller Group, would you consider that to be a violation of the Larry Miller harassment policy? A. I would view that as an inappropriate And based

behavior, it's something we wouldn't condone.

upon the rest of the facts that would go with it, yes, it could be a violation of the policy. Q. You said earlier that Carolyn Ashburn had

called you initially?

24

1 2 3 that.

A.

Yes, I believe she received the first call on

Q.

What can you remember about your telephone Page 21

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 22 of 124

SCHNURR1T.txt 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conference with Carolyn Ashburn? And I'd like you to be

as specific as possible as to what she said and what you said in that phone conference. A. Basically, the only thing that I can recall

is that she told me about Tonya, again, claiming that Mark was not behaving or conducting himself appropriately as the general manager of the store -- again, more to his demeanor and the possible tone of his language -- and that they were feeling extremely uncomfortable working for Mark. At which point in time I said I would give

them a call, I would do further investigation based upon her call to myself, and it would proceed as I've outlined everything. Q. Do you remember Ms. Ashburn telling you any

details about the complaints that Tonya had made to her, in terms of unwanted massages, ripping Christmas cards off the wall, getting too close in her personal space, those kinds of details? A. Q. No. Do you remember where you were when you

received the call from Carolyn Ashburn? A. I was either driving home or already at home,

25

1 2 3 4 5 6

because when I called Tonya back, I was at my home. recall that. Q.

I do

At that time, the day that you received the

call from Carolyn Ashburn and that you also spoke with Tonya House and Roberta Pulse and Mark Kolon, do you remember anyone saying that Mark Dundon had told Tonya Page 22

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 23 of 124

SCHNURR1T.txt 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. MS. RYAN: I want to clarify it, so we don't House that she had no shot at winning mother of the year? A. Q. No. Did anyone tell you that day that Mark Dundon

would yell and scream at Tonya House and Roberta Pulse? A. with me. Q. If Mark Dundon told the employees that they I believe that was part of their conversation

were not to contact Tony Schnurr for any reason, would that be an appropriate statement? A. Q. Yes. So the employees were not permitted to

contact you for any reason? A. No, they would always be welcome to call me. MS. RYAN: question and answer? MS. HOLMES: I think you misunderstood the I think -- can you reread the

have any confusion in the record.

26

1 2 3 4 5 6 7 8 9 Q.

THE WITNESS:

Okay.

(The last question was read back.) THE WITNESS: (BY MS. RYAN) It would be inappropriate. Okay. It would be

inappropriate for -- strike that. Okay. It would be inappropriate for Mark

Dundon to tell the employees in Denver that they were not to contact Tony Schnurr for any reason; is that correct? A. It would be inappropriate, yes. Page 23

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 24 of 124

SCHNURR1T.txt 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. But Mark Dundon was the acting manager of the

dealerships in Denver for that period of time that we discussed earlier; correct? A. Q. Correct. Do you know whether Mark Dundon would have

received any training from the Larry Miller Group of Companies prior to becoming a general manager? A. Q. A. May I ask a question to your question? Yes. When we bought his -- when we bought the

group of dealerships of which he was employed as the general manager, I have no idea what type of training he would have had prior to that. When he began his general managership with us going forward, yes, he would be in the general manager HR training sessions that we would hold. As well as Carolyn

27

1 2 3 4 5 6 7 8 9 10 11 12

Ashburn would be making dealership visits, I believe, two times a year to discuss and go over various human resource training and topics and proper handling, et cetera. Q. When Carolyn Ashburn called you with regard

to Tonya House and Roberta Pulse's complaints about Mark Dundon, did she tell you that these employees had a concern that Mark Dundon was your right-hand man and that he was your mouthpiece, and so they had a concern about you being the person investigating this matter? MS. HOLMES: question. Page 24 Object to the form of the

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 25 of 124

SCHNURR1T.txt 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: No. I believe that I had a

very good working relationship with all three of them, and never once do I recall them even stating that to me. Q. (BY MS. RYAN) Did Carolyn Ashburn make you

aware of any concerns that Tonya House had raised with her about fears that you and Mark Dundon were in a close working relationship? A. Q. No. When you spoke with Roberta, Tonya, and Mark,

can you describe what happened first in the conversation and how the conversation went? A. Well, at first, I asked all three of them

together, so that, you know, if, in fact, there were

28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

multiple issues or things that they would like to discuss or talk about that, please, you know, if you can get all in the same room, let's get on a conference call and let's talk about it. I don't recall if, in fact, they just put me on hold or if I called them back or they called me. we did all talk and it was the three of them. And I But

think that they were upstairs in Roberta's office when they talked to me. They went through again, you know, their displeasure in working for Mark, the fact that he was -he was saying things, you know, to them abruptly or rudely or, you know, very curt, and that it was ruining their -- their enjoyment of working there at the dealership. They didn't feel good about coming to work Page 25

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 26 of 124

SCHNURR1T.txt 16 17 18 19 20 21 22 23 24 25 every day. I remember stating that, you know, we don't -- meaning the corporation -- we don't want anyone to feel poorly about coming to work; that, you know, I apologize if, in fact, these things have taken place. take these comments very seriously. That is a very important dealership in our organization, and that we don't want to be counterproductive with anyone we have in there, even if it was a temporary or short-term basis. And I would be We

29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

discussing this issue not only with Mark, but with my supervisor, with our HR department, with our -- with our legal counsel, and the appropriate actions would be taken. Q. Did you, in fact, talk about the issues with

HR and legal counsel? A. First and foremost, I talked about it to my

supervisor, Rich Nelson, who is the president of automotive. And again, as I said earlier, I felt, he

felt, that due to the fact that we had just replaced a standing general manager, Mark was only there on an interim basis anyway, that the proper course of action for us to take is remove Mark from the situation immediately. Q. counsel? A. Monday. I believe we talked about it that following And And that's when I called Mark back.

Did you talk about it with HR and legal

I believe this happened on a Friday night. Page 26

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 27 of 124

SCHNURR1T.txt 19 20 21 22 23 24 25 then that Monday, either as part of our staff meeting that we had here weekly or adjacent to it thereafter, is that we would have discussed the fact that Mark had been removed as the interim manager, and that I would be going back over there after Christmas to do that job until we could find somebody permanently. Q. If you spoke about it at the weekly staff

30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

meeting, is that something that HR and legal counsel would have participated in? A. Q. A. They are participants in the staff meetings. Do you keep minutes of the staff meetings? We do not. MS. HOLMES: We've been going about an hour.

Is this a good time for a break? MS. RYAN: That's fine. Okay. I'm fine with it.

MS. HOLMES:

(A brief recess was taken.) Q. (BY MS. RYAN) Mr. Schnurr, we will probably You

be taking breaks throughout the day today.

understand that you're still under oath when we come back? A. Q. I do. What kind of training have you received from

the Larry Miller Group of Companies regarding how to conduct an investigation into a complaint of harassment or discrimination? A. I've received information from our human

resource director as it relates to obtaining the facts, Page 27

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 28 of 124

SCHNURR1T.txt 22 23 24 25 talking to all of the associated parties that would either have facts or be known facts, how to interpret, how to take whatever information I would receive and bring that back and review that with the HR director and

31

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

the legal counsel of the Larry Miller Group and any other executive managers that would be associated in those areas, and to wait for direction from any and all of those. Q. You don't remember specifically discussing

the allegations that Tonya House and Roberta Pulse had made regarding Mark Dundon with HR and legal counsel? A. Q. No. And you don't think that you have any notes

of documenting either the complaints that Roberta House -- Roberta Pulse and Tonya House had made or their conversations that you may have had with HR and legal counsel? A. Q. That's correct. Did you receive any direction from HR or

legal counsel with regard to the complaints that you had received from Mark -- relating to Mark Dundon? A. My recall is that they concurred with our

action to remove him from the Denver Toyota dealership. Q. And you're not aware of any documentation

relating to the allegations against Mark Dundon? A. Q. I am not. You did not verbally -- strike that. Did you not give Mark Dundon any written Page 28

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 29 of 124

SCHNURR1T.txt 25 discipline following the complaints that you had

32

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

received? A. Q. I did not. You did not give Mark Dundon any verbal

reprimand regarding the complaints you had received? A. Q. I did not. You did not discipline Mark Dundon regarding

the verbal complaints that you had received? A. Q. Could you say that again, please? You did not discipline Mark Dundon regarding

the verbal complaints you had received? A. Q. I did not. Did you ever receive a complaint from Nicole

St. John relating to Mark Dundon? A. Q. I did not. So, you would dispute an allegation that you

had, in fact, received a complaint from Nicole St. John relating to Mark Dundon? A. Q. Yes, I would. When the Larry H. Miller Group of Companies

obtained the dealership at which Mark Dundon was employed in Idaho, is there any procedure for reviewing personnel files to determine whether there had been complaints about Mark Dundon in the past? A. department. That would be handled by the human resource

Page 29

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 30 of 124

SCHNURR1T.txt 33

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

Q.

Are you aware of any other complaints against

Mark Dundon, other than the complaints made by Roberta Pulse and Tonya House? A. Q. I'm not aware of any. Did the Larry H. Miller Group of Companies

ever terminate Mark Dundon's employment? A. Q. A. Q. A. Q. A. Q. A. No. He's no longer employed by the company? That is correct. He resigned voluntarily? He did. Do you know why he resigned? To take a job with the Lithia Auto Group. Do you know when Mark Dundon resigned? I can give you an approximate; I can't It would probably be -- it

probably tell you exactly.

would probably be early 2001. Q. Do you know whether the Larry H. Miller Group

of Companies performs performance reviews of the managers of the dealerships? A. It's not our custom to do performance reviews There has been some done, but

with the general managers. it's not our custom. Q.

Would you agree that managers and

management-level employees at the Larry Miller Group of

34

1

Companies has a duty to provide a workplace free of Page 30

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 31 of 124

SCHNURR1T.txt 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. THE WITNESS: To prevent is that we just keep harassment? A. Q. Yes, I do. Would you agree that the managers and

management level employees at Larry Miller have a higher standard to meet with respect to avoiding harassment and discrimination? A. Q. Yes, I do. Other than providing training by HR, what

steps does Larry Miller -- the Larry Miller Group of Companies take to prevent harassment and discrimination in the workplace? A. I don't know quite how to answer -- I don't

understand your question, probably. Q. The Larry H. Miller Group of Companies

provides training to employees regarding harassment; correct? A. Q. That's correct. Other than providing the training, does the

Larry H. Miller Group of Companies do anything else to prevent discrimination and harassment in the workplace? MS. HOLMES: Objection to the form of the

it as an active discussion item when we have general

35

1 2 3 4

managers' meetings, whether it be our more formal meetings or bimonthly or monthly or conference. We do

subscribe to the various -- what would be newsletters, briefings, videotapes that our HR department would Page 31

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 32 of 124

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

SCHNURR1T.txt subscribe to or purchase. We have had human resource attorneys come and make guest presentations at our various meetings to discuss real issues, real circumstances, basically quiz and put our ladies and gentlemen through various workshops just to continue to heighten their awareness as to the -- you know, the problems and pitfalls and ways to prevent and solve and cure. Q. (BY MS. RYAN) Since the Larry H. Miller

Group of Companies does not generally provide performance evaluations for the managers, in what ways, if any, does the company monitor the workplace to make sure that it's free of discrimination and harassment? MS. HOLMES: question. THE WITNESS: If there is an issue, if there Object to the form of the

is a problem, is that -- again, that they would be dealt with as proactively and as professionally as possible. And where there would be harassment or discrimination prevalent, is that they would be properly documented by our human resource director and duly noted.

36

1 2 3 4 5 6 7

Q.

(BY MS. RYAN)

Is there any type of a file or

location where -- centralized location where documents concerning complaints of discrimination could be found? A. The human resource director would keep, you If they were

know, files on those type issues.

dealership issues, it would be handled by the dealership management team. Those issues would be handled and filed Page 32

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 33 of 124

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

SCHNURR1T.txt into the employee packet. Q. If HR has no documents related to the

allegations against Mark Dundon, and since you've testified that you have no documents relating to the issues regarding Mark Dundon, is it true that it would be very difficult to determine any kind of a pattern of allegations against Mark Dundon? MS. HOLMES: question. THE WITNESS: To reiterate a prior statement Object to the form of the

that I made, when Tonya House brought her complaints against Mark Dundon to the company's knowledge, my recall is that it was more of a personality situation or a management style issue than it was ever a claim or an attempt to file a claim for discrimination or sexual harassment, et cetera. With Roberta House also involved

in all of the discussions that were taking place -Q. Do you mean Roberta Pulse?

37

1 2 3 4 5 6 7 8 9 10

A.

Roberta Pulse, I'm sorry.

She was our

on-site contact that if an employee -- or if anyone affiliated with the store felt they needed to file a claim, she would be one of the two contacts. And never

once, to my recollection, was there ever the conversation that that was what they were either doing or attempting to do. It was more that they didn't care for the way

Mark Dundon was managing the store and interfacing with them. Q. Based on your training that you've received Page 33

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 34 of 124

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

SCHNURR1T.txt from the Larry H. Miller Group of Companies, do you believe that an employee has to use the word "discrimination" or "harassment" to put the company on notice of -A. Q. A. Q. No. -- facts? No. So you understand that an employee could, in

fact, make a complaint of discrimination or harassment without necessarily using the word "discrimination" or "harassment," if they were describing circumstances that would fall within your policy; is that right? A. Q. A. I do understand that. Then that's right? That's right.

38

1 2 3 4 5 6 7 8 9 10 11 12 13

Q.

Do you remember apologizing profusely to

Roberta Pulse, Tonya House, and Mark Kolon about Mark Dundon's behavior when you had the conference call with them? A. I'm not quite sure what "profusely" means.

But if it means excessively and sincere, no, I would have said that -- I would not want any Larry Miller employee to ever feel uncomfortable about working at any dealership. And if, in fact, they were feeling that way,

I would apologize on behalf of the company and assure them that we would do our best to eradicate that thing. Q. At the beginning of the deposition I forgot And

one of the housekeeping matters that I usually do. Page 34

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 35 of 124

14 15 16 17 18 19 20 21 22 23 24 25

that is: A. Q.

SCHNURR1T.txt Are you represented by legal counsel today? Yes, I am. Are you speaking on behalf of Larry H. Miller

Group of Companies today? MS. HOLMES: question. THE WITNESS: I'm speaking as an employee, Object to the form of the

giving you the truth and knowledge to the best of my abilities. Q. (BY MS. RYAN) Who made the decision to

install Mark Dundon in the Denver dealerships? A. When we have a general manager need or a void

39

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

at any of our dealerships, the executive management team which would be the operations manager, Richard Nelson, would call us. And based upon the situation, we would

develop a list, both inside or outside of the company, and then we would contact those candidates or candidate and ask them if, in fact, they would accept the responsibility or give us a hand, as it was in this case. And I'm confident that that's the way it took place for Mark. Q. Did you maintain the list of candidates for

the Denver position? A. It wouldn't be done formally in writing, it

would done in conversation through a meeting. Q. So you don't have any kind of a list of --

written list of the potential candidates for the -A. There would not be a list. Page 35

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 36 of 124

17 18 19 20 21 22 23 24 25

Q.

SCHNURR1T.txt -- managers? And again, I'll ask you to be

sensitive to letting me finish asking my question. A. I'm trying, but you're difficult. I'm doing

my best over here and you keep going. Q. I know. Sometimes I speak kind of slowly,

too, and you're anticipating what I'm going to say. A. Q. I apologize for that. That's all right. MS. HOLMES: No apology necessary.

Can't expect a critique back to

40

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

you. Q. (BY MS. RYAN) I'm not trying to be

difficult, but I'll do my best. A. Q. I will, too. Thank you. When you had the telephone

conference with Roberta Pulse, Tonya House, and Mark Kolon, did you tell them that you would let Larry Miller personally know about the situation with Mark Dundon? A. Q. I did not. Did you, at any time, ever tell Roberta Pulse

or Tonya House that Larry Miller would get on a plane and fly to Idaho and personally reprimand Mark Dundon? A. I would never say -- I would never say that. And based upon

Larry Miller has a very complex schedule.

the fact that we have a president of automotive, that we would handle it among the president of automotive and operations managers and any other staff members that would need to be involved. would never say that. But for me to say that, I

I would never say that. Page 36

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 37 of 124

20 21 22 23 24 25

Q.

SCHNURR1T.txt So just to be clear, you dispute any

allegation that you told Roberta Pulse or Tonya House -A. Q. I would dispute that. Okay. You also would dispute the allegation

that you made a follow-up phone call confirming that Larry Miller got on an airplane, flew to Idaho and

41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

personally reprimanded Mark Dundon? A. Q. I would rigorously dispute that. Did you ever tell Tonya House that you were

shocked to hear that someone that you had faith in and trusted like Mark Dundon would have behaved in the way that he did with respect to the employees at the Denver dealerships? A. Q. A. Q. I have no recollection of that. Do you know who Nicole St. John is? Yes, I do. And you dispute the allegation that she had

called you or written to you to let you know that Mark Dundon was inappropriate toward women? A. Q. I would dispute that. Do you know whether Nicole St. John had ever

been terminated from her employment by the Larry Miller Group? A. Q. Yes, I would. She was terminated and, in fact, you offered

her her job back; is that true? A. Q. That is correct. Why did you offer her her job back? Page 37

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 38 of 124

23 24 25

A.

SCHNURR1T.txt When I was -- again, when I replaced Mark as

the day-to-day operator, I felt that I needed a customer relation manager in the store. And I thought Nicole did

42

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

a nice job and that -- I felt that if she would like to come back, she would be more than welcome. Q. place? A. Mark had made some economic cutbacks, again Do you know why she was fired in the first

to try to improve the profitability of the store, and Nicole was included in that, in the people he released. Q. Did you ever hear from anyone that Mark

Dundon made inappropriate comments to Nicole St. John, including asking her if the reason she got such high customer service satisfaction scores was because she have having sex with her customers? A. Q. I have never heard that. By the way, did you do anything to prepare

for your deposition today? A. Q. A. I did. What did you do? I read through parts of Tonya's deposition, I

read through some of the HR material that would have been available back in this time frame, and I had a couple meetings with Judy. Q. Do you have an understanding as to what this

lawsuit is about? A. Q. I do. What is your understanding? Page 38

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 39 of 124

SCHNURR1T.txt

43

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

A.

That Tonya is charging the Larry Miller Group

with a sexual discrimination claim, that Tonya and Roberta are -- or just basically Roberta is claiming the group retaliated against her. Q. Do you dispute the claim that the Larry

Miller Group of Companies retaliated against Roberta by terminating her employment? MS. HOLMES: question. THE WITNESS: Q. (BY MS. RYAN) Yes, I dispute that. We've been talking about the Object to the form of the

telephone conference that you had with Roberta Pulse, Tonya House, and Mark Kolon. Have we discussed

everything that you can remember from that phone conference? A. Q. Yes. We also talked about a telephone conference

that you had with Carolyn Ashburn in which she relayed information to you about complaints by Tonya House. Have

we talked about everything that you can recall from that conversation? A. Q. Yes. Do you know whether Mark Dundon conducted a

sexual harassment training seminar while he was in Denver for the Denver dealerships?

44 Page 39

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 40 of 124

SCHNURR1T.txt 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 question. THE WITNESS: I would consider it A. Q. I do not. If a manager was conducting a sexual

harassment training seminar for his subordinate employees and stared at one young female employee and said that complainers are usually young women in their 20s and laughed about it, would you consider that a violation of Larry Miller's policies against discrimination? MS. HOLMES: Object to the form of the

inappropriate conduct, and I would really have to have far more information as it relates to the breadth and frequency and contact. Q. (BY MS. RYAN) Did you feel like Tonya House

was overpaid for her position as a finance manager? A. Q. No. Did you ever tell Richard Newendyke that you

wanted to get rid of Roberta Pulse and Tonya House as employees? A. Q. I never said that. I would never say that.

Did you ever tell Richard Newendyke that you

felt Roberta Pulse was a bitch? A. Q. No. Did you ever tell Richard Newendyke that

Roberta Pulse and Tonya House were troublemakers?

45

1 2 3

A. Q.

No. Is there any documentation supporting your

contention that Mark Dundon was simply an interim manager Page 40

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 41 of 124

SCHNURR1T.txt 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. THE WITNESS: Could you restate that, please? Q. question. THE WITNESS: (BY MS. RYAN) Yes. Would it be unusual for Larry rather than a manager placed there for a long-term period? A. The only way that I believe you could back

into that is there was never a pay plan established for his oversight of that location. He continued to be paid

out of the Idaho dealership at which he was the general manager, with no additional compensation outside of temporary living expenses while he was there. Q. Is it customary for Larry Miller Group to

have written pay plans of managers? A. Q. Yes. Is it customary for the Larry Miller Group to

have written pay plans with the finance managers? MS. HOLMES: Object to the form of the

Miller Group to change a pay plan of a finance manager without giving a written pay plan? MS. HOLMES: Object to the form of the

46

1 2 3 4 5 6

Q.

(BY MS. RYAN)

Would it be unusual for the

Larry H. Miller Group of Companies to change the pay plan of a finance manager or finance director without giving that employee a written pay plan? MS. HOLMES: question. Page 41 Object to the form of the

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 42 of 124

SCHNURR1T.txt 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: There would have to be

something in writing to give to the payroll administrator of the dealership. Q. (BY MS. RYAN) Is there a specific form for

providing that information to the payroll administrator? A. Q. There's no formalized form. Would there also have to be something in

writing to give to the employee? A. Q. A. Q. A. Not necessarily. How long have you known Bob Cockerham? Since 2000. How did you meet Bob Cockerham? Bob joined our organization from Albuquerque,

and we hired him to run our Dodge dealership in Sandy, Utah. Q. Was Bob Cockerham recruited for the position

by the Larry Miller Group? A. Q. Yes. Who recruited him?

47

1 2 3 4 5 6 7 8 9

A.

I can't tell you exactly.

I know that he

came up and he interviewed.

He wanted to partner with

our organization into a dealership, and those opportunities weren't available. But the employment at

the Dodge store was, and he was hired to be the general manager there. Q. position? A. I did not. Page 42 Did you interview Bob Cockerham for the

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 43 of 124

SCHNURR1T.txt 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I -Q. Was Richard Nelson the only person who Q. A. Q. hiring? A. Q. A. Q. A. Richard Nelson. Anyone else? I don't know how to answer that. Why? Do you know anybody else who could have been, Do you know who did? I don't. Do you know who would have had to approve his

approved his hiring? A. I don't believe so. Any general manager

change that we have in our organization would be run by Larry Miller. Q. Larry Miller reviews changes in general

48

1 2 3 4 5 6 7 8 9 10 11 12

managers? A. Um-humm. He doesn't necessarily approve him

or disapprove them, but he certainly is brought into the loop. Q. Did you bring Larry Miller into the loop with

regard to the change of general managers when Mark Dundon left Denver to go back to Idaho? A. I don't know. That would have been something

that Richard Nelson would discuss, being the president of the auto group. Q. A. But you didn't discuss it with Larry Miller? I personally did not. Page 43

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 44 of 124

SCHNURR1T.txt 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Is the Larry Miller -- is any Larry Miller

entity currently helping to finance Bob Cockerham's dealership in New Mexico? A. Q. I don't know. If you were to try to determine whether one

of the entities is supporting or helping Bob Cockerham's dealership financially, where would you check? A. Well, let me answer it this way: To the best

of my knowledge, there never has been, nor is there any assistance currently, financial or otherwise, with Bob Cockerham's dealership in New Mexico. Q. Bob Cockerham is no longer employed by the

Larry H. Miller Group of Companies?

49

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

A. Q. A. Q. A.

That's correct. Do you know when his employment ended? It would be December of '01. Do you know why his employment ended? Yes. His wife did not care for living in

Denver and wanted to go back -- back closer to home with their children or child. And Bob chose to resign his

post and go back to New Mexico, start his own business. Q. Bob Cockerham was not terminated by the

Larry H. Miller Group of Companies? A. Q. No. The Larry H. Miller Group of Companies did

not give Bob Cockerham the option of resigning in lieu of termination; is that right? A. No. Page 44

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 45 of 124

SCHNURR1T.txt 16 17 18 19 20 21 22 23 24 25 question. THE WITNESS: I'm not aware of any. question. Q. A. Q. (BY MS. RYAN) Correct. Do you know whether Bob Cockerham ever Is that right? MS. HOLMES: Object to the form of the

received any written discipline while employed by the Larry Miller Group? MS. HOLMES: Object to the form of the

50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 too.

Q.

(BY MS. RYAN)

Do you know whether Bob

Cockerham ever received any verbal discipline while employed by the Larry Miller Group? A. I'm not aware. MS. HOLMES: question. Object to the form of the Give me a little --

Let me object.

half-a-second, so she doesn't get mad. Q. (BY MS. RYAN) You never personally

reprimanded Bob Cockerham, either verbally or in writing, while he was employed by the Larry Miller Group; is that correct? MS. HOLMES: question. THE WITNESS: Q. (BY MS. RYAN) That is correct. Now you have to wait for her, Object to the form of the

You have to wait for me and for her. MS. HOLMES: THE WITNESS: That's a bummer. I should be making notes here. Page 45

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 46 of 124

SCHNURR1T.txt 19 20 21 22 23 24 25 Q. (BY MS. RYAN) You testified earlier that

after Mark Dundon returned to Idaho, you worked at the Denver dealerships for a period of time; is that true? A. Q. Yes. How often would you -- strike that. At that time, then, were you an interim general manager for the Denver dealerships?

51

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

A. Q.

Yes. Were the employees advised that you were an

interim general manager at that time? A. Q. Yes. How long did you serve as the interim general

manager in the Denver dealerships? A. All the way until we hired Richard Newendyke

as the full-time general manager, which was at some point in February; I think the latter part of February. Q. So you served as the interim general manager

approximately from January 1st, or the beginning of January 2000, through sometime in the end of February 2000? A. Q. Correct. How often were you at the dealership during

that period of time? A. Q. Monday through Friday. At that time, the Denver Toyota store and the

Used Car Supermarket were operating as one single entity; is that true? A. It was one entity with two separate Page 46

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 47 of 124

SCHNURR1T.txt 22 23 24 25 locations. Q. The accounting functions for both of those

locations was integrated as one set of books; is that true?

52

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.

One location, two sets of books.

The used

car lot would have its own accountability. Q. At the time that you were working as interim

general manager in the Denver locations, the computer system that was being utilized was Reynolds & Reynolds; is that right? A. Q. Yes, I believe that's true. Who made the decision to install Richard

Newendyke as the general manager at the Denver locations? A. Q. A. Q. A. Q. Richard Nelson and the operations managers. Are you saying that it was a joint decision? Correct. You're one of the operations managers? Correct. Richard Newendyke had previously served as a

general manager for a dealership with the Larry Miller Group in Colorado Springs; is that true? A. Q. Yes. How long had Richard Newendyke worked for the

Larry Miller dealership -- the Larry Miller organization before he was installed as a general manager in Denver; do you know? A. Richard, to the best of my knowledge, was an

existing employee when Larry Miller bought the Page 47

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 48 of 124

SCHNURR1T.txt 25 dealership. He was working at in Colorado Springs, I

53

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

believe, in 1988 and had been a running employee without interruption from that point forward. Q. Did you ever learn of any problems regarding

Tonya House's pay plan? A. Q. I did not. Did you ever learn that Tonya House had a

written pay plan for seven percent and was being paid on a five-and-a-half percent pay plan? A. Q. I did not. Did you ever learn that the Larry Miller

Group of Companies paid Tonya House approximately $33,000 in back pay? A. Q. a question. A. Okay. I'm confused with the way that you I do, and -- may I ask a question? You can ask me a question. You can't ask her

started your last series of questions. MS. HOLMES: THE WITNESS: Q. A. (BY MS. RYAN) Yeah. And I'd like to clarify. Sure.

My understanding of the way you were asking Did Richard Newendyke ever bring to He

the questions is:

you a question as it relates to Tonya House's pay? did not.

Did I learn of a problem with Tonya House's pay Yes, I did, but it

in the total scope of her employment?

Page 48

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 49 of 124

SCHNURR1T.txt 54

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

was only after Bob Cockerham was appointed general manager. Q. So you deny that Richard Newendyke ever

advised you of problems regarding Tonya House's pay? A. Q. Yes, I do deny that. You say that the first time you learned of

any issues relating to Tonya House's pay plan was from Bob Cockerham? A. Q. That is correct. Do you recall how you learned of those issues

from him, a phone conference or meeting? A. I can't tell you if it was in person or if it But Bob did talk to me, when we were

was a telephone.

speaking, that Tonya had come to him and said that for a segment of time that she had been paid incorrectly, and that she was now claiming that we owed her approximately $33,000. Q. Did you do anything as a result of learning

of this information? A. Q. A. Yes, I did. What did you do? I first -- I contacted Roberta Pulse and I I said, "Roberta" -- being the payroll

asked Roberta.

administrator of the store throughout -- not only currently but throughout the time that Tonya was

55

1

claiming, what did she know of why she wouldn't have been Page 49

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 50 of 124

SCHNURR1T.txt 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 paid properly. She could not or did not understand or did not know of any reason of why that possibly took place. I said, "Roberta, could you check in her file to see if, in fact, there is any documentation that would change the way someone was paid?" Because I found it very odd that

someone being paid in that case so drastically different wouldn't have raised their hand or continued to ask questions until someone gave, you know, that employee an appropriate answer. Roberta reported back that, no, she could find nothing in the pay folder. I again discussed the

issue with Richard Nelson, with Robert Tingey, our counsel. And since there was no other facts or documents

that we could find or facts that were being told to us by other employees, that it was my recommendation that we pay Tonya. And that whole period didn't last -- from the

day I was notified until the day she was paid, it probably didn't last two weeks. Q. Did Pat Kroneberger ever tell you of issues

relating to Tonya's pay? A. No, he did not, unless it was there at the Nothing prior, no.

very end, during that ten-day period. Q.

You don't remember Pat Kroneberger telling

56

1 2 3 4

you anything regarding Tonya House's pay? A. Q. No. The Larry Miller Group of Companies paid

Tonya House approximately $33,000; correct? Page 50

Case 1:03-cv-02073-WDM-KLM

Document 195

Filed 12/21/2005

Page 51 of 124

SCHNURR1T.txt 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Correct. That was for back pay? That was for that segment of time that she

was questioning between the seven percent and the 5.5 percent. Q. A. Q. That $33,000 was not a bonus? No. Do you contend that Tonya House should not

have been paid the $33,000, approximately? A. In seeing some of the documents that have

since been produced as it relates to a change that would have occurred under Reggie Lang, is that I believe she may not have been entitled to that money. Q. A. What makes you think that? Due to the fact that there was a formal

change to the way she was compensated; yet when asked to find that document or see that document or discuss that document, it was nowhere to be found when I asked those questions. I further find it very difficult to believe that due to the fact that I've never had an ill moment

57

1 2 3 4 5 6 7

with either of those two ladies, that when I was the interim general manager that that issue wouldn't have been brought to my attention, since I was signing the paychecks, distributing the paychecks, and never once did Tonya come in and discuss with me that she was being paid improperly. Q. So you dispute the contention that Tonya Page 51

Case 1:03-