Free Declaration in Support - District Court of California - California

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1 2 3

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ---O0O---

4 FERNANDO DAROSA, 5 6 vs. Plaintiff, No. 3:07-CV-3114

7 KAISER FOUNDATION HEALTH PLAN, INC., 8 Defendant. 9 _______________________/ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Taken before CATHLEEN M. MEUTER CSR No. 12950 August 22, 2008 DEPOSITION OF FRANK MELLON

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2 1 2 INDEX PAGE 4

3 EXAMINATION BY MR. FRIEDMAN 4 5 6 7 8 EXHIBITS PAGE 67 88 101

9 PLAINTIFF'S 10 1 11 2 12 13 14 15 4 16 5 17 18 19 6 7 3 Mellon's calendar and notes

Khrmit records, Bates stamped K00656 to K00661 daRosa Personnel Action Request, final timesheet, faxes, and daRosa Unemployment Insurance Termination Report 12-7-05 memo to File, Re: DaRosa String of e-mails, Bates stamped K00493 to K00497 da Rosa Visit Verification forms Notice to Employer of State Disability Claim Filed

115 126 164

168 168 199

20 8 21 9 22 23 24 25

Notice of Charge of Discrimination Fax confirmation with reduced document

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3 1 2 3 BE IT REMEMBERED, that pursuant to Notice, and on DEPOSITION OF FRANK MELLON

4 the 22nd day of August 2008, commencing at the hour of 5 1:05 p.m., in the offices of Aiken & Welch, One Kaiser 6 Plaza, Suite 505, Oakland, California, before me, 7 CATHLEEN M. MEUTER, a Certified Shorthand Reporter, 8 personally appeared FRANK MELLON, produced as a witness 9 in said action, and being by me first duly sworn, was 10 thereupon examined as a witness in said cause. 11 12 13 14 JEREMY L. FRIEDMAN, Attorney at Law, 2801 ---o0o---

15 Sylhowe Road, Oakland, California 94602, appeared on 16 behalf of the Plaintiff. 17 18 JONATHAN D. MARTIN, Seyfarth Shaw, 560 Mission

19 Street, Suite 3100, San Francisco, California 94105, 20 appeared on behalf of the Defendants. 21 22 23 24 25

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4 1 2 3 FRANK MELLON, sworn as a witness, testified as follows:

4 EXAMINATION BY MR. FRIEDMAN: 5 Q. Would you please state and spell your name for

6 the record? 7 A. My name is Frank Mellon. The last name is

8 spelled M-e-l-l-o-n. The first name is Frank, 9 F-r-a-n-k. 10 Q. Mr. Mellon, have you given your deposition in

11 any other cases? 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. Q. On how many occasions? A. I don't know. Q. Is it more than five? A. Yes. Q. Is it more than ten? A. Yes. Q. Can you give me an approximation? A. I don't know. Q. Okay. Is it more than fifty? A. I don't think so. Q. Do you think it's more than thirty? A. I don't know. Q. So it could be somewhere between twenty and

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60 1 terminated. 2 BY MR. FRIEDMAN: 3 Q. It's only your role to give advice and

4 consultation? 5 6 A. Yes. Q. In January of 2006, approximately how many

7 employees and managers were you speaking with on a 8 daily basis? 9 A. Oh, God. I couldn't hazard a guess. I mean

10 we've got 5,000 employees at the Oakland Medical 11 Center. And on any given day, it could be as few as a 12 half dozen managers and four or five employees. It 13 could be as much as fifteen, twenty managers and a lot 14 of employees. There's just no way to give you a clean 15 answer on that. 16 Q. But the estimates that you just gave me are

17 fair estimates or at least the range? 18 19 A. The range is a possibility, yeah. Q. And can you recall all of the conversations

20 that you have with those individuals given the number 21 that you were doing in that time period? 22 23 A. Oh, no. Q. And so is it important to keep document of

24 discussions in case you have to refer back to them? 25 A. No.

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61 1 2 3 Q. It's not important? A. It will depend upon the case. Q. What is your practice with respect to note

4 taking in that regard in that timeframe? 5 6 A. It depends upon the case. Q. What did you do in January 2006 with respect to

7 employees or managers in calling you? 8 A. It would depend upon the case. I may take

9 notes; I may not take notes. 10 Q. Prior to the deposition today, you said you

11 reviewed some of the notes that you provided in this 12 litigation, correct? 13 14 15 16 A. Uh-huh. Q. It needs to be verbal. A. I'm sorry. Yes. Q. And so were those the notes that you were

17 taking at the time? Was it your practice to take those 18 notes? 19 20 21 22 A. In the fashion that I took them, yes. Q. Were there any other notes? A. No, sir. I presented everything that I had. Q. And you don't have any other records that would

23 keep track of your phone conversations, result of any 24 document search, investigation conclusions, 25 consultations provided, or recommendations?

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62 1 2 A. I provided counsel with everything I have. Q. How do you keep track of any results of any

3 investigations that you conduct? 4 A. If it's a formal investigation, then a file

5 will be opened and the materials be put into a file. 6 We don't have a formal filing system, although we're 7 working on that. 8 THE REPORTER: Counsel, I'm going to need a

9 break when you get to a good point. 10 11 12 MR. FRIEDMAN: Let's take a break. (Break taken.) MR. FRIEDMAN: Back on the record.

13 BY MR. FRIEDMAN: 14 Q. Beginning in December of 2005, have you ever

15 searched through any of Kaiser's records in connection 16 with Mr. daRosa? 17 A. The only search that I did -- well, excuse me.

18 There was an EEOC filing. I don't recall the exact 19 dates. And so records were furnished to our counsel in 20 that matter. And then subsequently Mr. daRosa asked 21 for his personnel file. I did secure that for him. 22 Q. In December of 2005 when you were speaking with

23 Ms. Roper about Mr. daRosa, did you look through any of 24 Kaiser's files at that time? 25 A. I did not speak with her in 2005.

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63 1 2 3 Q. In December of 2005? A. No. I did not. Q. In January of 2006, did you speak with her

4 about Mr. daRosa? 5 6 A. Yes. Q. And at that time, did you look through any

7 files? 8 9 A. No. Q. And when Mr. daRosa called you in February of

10 2006, did you look through any files at that time? 11 12 A. She did not call me in February of 2006. Q. In February of 2006, did you look through any

13 files with respect to Mr. daRosa? 14 15 A. No. Q. In March of 2006, did you look through any

16 files for Mr. daRosa? 17 18 A. No. Q. In July or August of 2006 when you were

19 engaging in e-mail communications with Ms. Kato about 20 Mr. daRosa, did you look through any files? 21 22 23 MR. MARTIN: Objection. Lacks foundation. You can answer if you know. THE WITNESS: No.

24 BY MR. FRIEDMAN: 25 Q. Did you search -- look at any of Mr. daRosa's

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64 1 files prior to the EDD hearing in April of 2007? 2 A. Excuse me, Counselor. Do you want to

3 correct -- and it's only because I don't recall the 4 specific dates. There was a searching of the files for 5 purposes of providing those to legal counsel in the EEO 6 case. So I don't want to be misunderstood. But those 7 files were searched out then and simply forwarded on. 8 9 Q. When was it that you did that? A. You know, I just don't remember when the EEO

10 case was. And my recollection is that it was in 2006, 11 but I may be off on that. 12 Q. Did you ever see the letter that the counsel

13 for Kaiser wrote to the EEOC about this case? 14 15 A. No. Q. Did your provision of records to the EEO

16 division, was that before the EDD hearing in March of 17 2007? 18 MR. MARTIN: Objection. Misstates the

19 testimony. Lacks foundation. He didn't say that he 20 provided documents to the EEOC or anyone else, I don't 21 think. 22 THE WITNESS: No. I believe you said to my

23 EEOC counsel. 24 BY MR. FRIEDMAN: 25 Q. That's what I meant, yes. I know you didn't

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65 1 provide it to EEOC, but you had attorneys representing 2 Kaiser in the EEO matter. 3 4 5 6 A. Yes. Q. And you provided them with documents? A. Yes. Q. And you searched for Mr. daRosa's records in

7 connection with that provision? 8 9 A. Yes. Q. And I was asking whether that was before the --

10 I think I misspoke. I think I said March 2007, but it 11 was April 2007 was the EDD hearing. 12 13 Was it before then or after then? A. I believe before then, but I do not remember

14 specifically. 15 Q. And how about after the EDD hearing that you

16 participated in, did you search for records at that 17 time -- any other time? 18 19 A. No. Q. Okay. And did you search for any documents in

20 connection with this litigation? 21 A. No -- excuse me. I furnished counsel, as I

22 said before, with the documents that I had. 23 Q. So in furnishing those documents, did you

24 search records in order to find the documents to 25 provide to counsel?

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66 1 2 3 4 5 A. Yes. Q. What records did you search? A. The ones that I gave to counsel. Q. Where were they maintained? A. They were items -- there were some items that

6 were in my possession. 7 8 Q. Where did you keep them in your possession? A. In a file drawer because they were general

9 items. 10 11 12 13 14 Q. Do you have a label on your file drawer? A. No. It's a desk drawer. Q. It's a desk drawer? A. Yes. Q. And what kind of information do you keep in

15 there? 16 A. The information which I've specifically kept in

17 there was my calendar -- my calendars which were Lotus 18 notes and my writing down of telephone calls. 19 Q. Didn't you keep some sort of file like daRosa

20 file or a file for documents related -21 A. I believe I did, but I gave all those to

22 counsel. 23 Q. Do you recall approximately how many pages were

24 in the daRosa file? 25 A. No.

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67 1 2 3 Q. Was it more than five? A. I don't know. MR. FRIEDMAN: We'll mark the first exhibit as

4 Exhibit 1. 5 6 7 (Plaintiff's Exhibit No. 1 marked for Identification.) MR. FRIEDMAN: Counsel, I'll be using these

8 same exhibits with the same exhibit numbers in the 9 depositions coming this week. I'd ask that you please 10 hold on to your copies. 11 MR. MARTIN: Okay. In other words, this

12 document will be Plaintiff's Exhibit 1 in all the other 13 depositions? 14 MR. FRIEDMAN: If I need to add any others in

15 the other depositions, I'll make them different 16 numbers. I'll continue to sequence, but I won't 17 necessarily make these an exhibit in every deposition. 18 19 MR. MARTIN: All right. MR. FRIEDMAN: Saving trees.

20 BY MR. FRIEDMAN: 21 Q. Okay. Mr. Mellon, there is a top page which

22 has a calendar. This is Bates stamped 104 to 109K, and 23 the first page has some dates on it. 24 Is that your handwriting? I mean the second

25 page. Sorry.

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68 1 2 3 4 A. Yes. Q. That's your handwriting? A. Yes. Q. And that's -- and the whole document is your

5 handwriting, correct? 6 7 8 A. Yes. Q. Now, can you tell me what K105 is? A. It's notes I took regarding phone messages that

9 I had received. 10 Q. And was this page in the daRosa file, or was

11 this in a separate file for all of your telephone 12 communications? 13 A. Separate file for all of my telephone

14 communications. 15 Q. Where did you keep the separate file for all

16 telephone communications? In that desk drawer? 17 18 19 20 21 A. In that desk drawer. Q. Where did you keep the daRosa file? A. In a separate file. Q. Where was that one kept? A. In a filing cabinet that I have otherwise next

22 to my desk. 23 Q. Okay. And when you produced this in March of

24 2006, did you have any records of any other discussions 25 in February or January or --

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69 1 A. I had no conversations with Mr. daRosa in

2 January or February. 3 Q. But did you have telephone records reflecting

4 work that you did or phone calls that you made in those 5 time periods? 6 7 8 9 A. Yes. Q. And do they still exist today? A. Yes. Q. And is it your testimony that there are no

10 records from -- other than this page that have any 11 reference to Mr. daRosa? 12 13 A. Yes. Q. Did you provide those records to counsel even

14 though they, in your mind, didn't have any of those 15 daRosa references? 16 A. I provided to counsel records that I had that

17 would have reference to Mr. daRosa. 18 Q. So did you provide counsel with records from

19 February of 2006? 20 A. I had no records on Mr. daRosa in February of

21 2006. 22 Q. Did you provide counsel with your phone records

23 from 2006? 24 25 A. No, I did not. Q. And did you provide counsel with your phone

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70 1 records from January of 2006? 2 3 A. No, I did not. Q. And did you take any notes in your discussions

4 with Ms. Roper? 5 6 A. No. Q. And you went over to Ms. Roper's office,

7 correct? 8 9 10 11 12 A. I chatted with her. Q. You went over there to her office, correct? A. Are you talking January 2006, sir? Q. Yes. A. I believe that we mainly dealt on the

13 telephone. I don't recall going over to her office. I 14 might have. I just don't recall. 15 Q. Do you recall going over to her office to look

16 for a fax? 17 A. I never went to her office to look for a fax in

18 January of 2006. 19 Q. Do you recall testifying at the unemployment

20 insurance hearing that you went over to her office to 21 look for a fax? 22 A. Again, you're going into the unemployment comp

23 hearing. The only time that I am aware of any fax -24 and I maintain my ongoing position regarding that 25 hearing.

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71 1 Q. I'm asking you, do you recall testifying

2 previously that you did, in fact, go over to 3 Ms. Roper's office to look for a fax in January 2006? 4 5 6 A. No, I do not, sir. Q. You don't recall that testimony? MR. MARTIN: Objection. Asked and answered.

7 He just said he didn't. 8 BY MR. FRIEDMAN: 9 10 11 12 Q. I just want to make sure. You don't recall that testimony? A. I don't recall saying that I went over in 2006. Q. Okay. Would a transcript or listening to the

13 tape of the transcript refresh your recollection? 14 15 A. I'm not -MR. MARTIN: Objection. Calls for speculation.

16 Asked and answered. He's already made his comment 17 about the use of that hearing which is inadmissible. 18 BY MR. FRIEDMAN: 19 20 21 Q. So? A. I'm not going to answer about the hearing. Q. And so you won't answer the question about your

22 recollection of prior testimony on this particular 23 subject? 24 25 MR. MARTIN: Objection. Asked and answered. THE WITNESS: I've already answered you, sir.

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72 1 BY MR. FRIEDMAN: 2 Q. And the answer is you will not answer me,

3 correct? 4 5 6 A. That's correct. MR. MARTIN: Objection. Asked and answered. MR. FRIEDMAN: Your objections are repeating

7 themselves. You can have standing objections if you 8 need on some of these topics, but I think it's 9 interfering with this testimony. 10 11 MR. MARTIN: Just ask the questions, Counsel. MR. FRIEDMAN: No. I'm going to try to conduct

12 the deposition in a way that I think it professionally 13 is required of us. I've asked you a couple of times to 14 keep your objections from being speaking objections. 15 Now I'm offering to give you standing objections so 16 that you're not constantly interfering with the 17 witness' ability to testify. 18 MR. MARTIN: Well, I'm not going to do standing

19 objections. I'm going to object to each question as 20 appropriate. That's the way you object in a 21 deposition. 22 MR. FRIEDMAN: Could I please have my last

23 question reread? 24 (Record read.)

25 BY MR. FRIEDMAN:

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73 1 Q. Did you provide -- I'm sorry. Back to the

2 Exhibit 1, the next page is K106. 3 4 5 6 7 8 9 10 11 This is from the same file of phone references? A. Yes. Q. And at this time had you created a daRosa file? A. I don't recall. Q. You don't recall? A. I don't recall. Q. In March of 2006, did you create a daRosa file? A. I don't believe so. Q. And in February of 2006, did you create a

12 daRosa file? 13 14 15 16 17 18 A. No. Q. In January 2006, did you create a daRosa file? A. No. Q. Did you have a file for Ms. Roper? A. No. Q. Did you keep any of the records associated with

19 Mr. daRosa's termination from January 2006? 20 21 22 MR. MARTIN: Objection. Lacks foundation. You can go ahead and answer if you know. THE WITNESS: What are you asking after,

23 Counsel? 24 BY MR. FRIEDMAN: 25 Q. Did you keep any records?

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74 1 2 3 4 A. From the termination in 2006? Q. Yeah. A. In January 2006, I kept no records. Q. Okay. And in January 2006, Ms. Roper provided

5 you with a draft of the termination letter prior to the 6 time that it went out, correct? 7 8 9 A. That is correct. Q. And how did she provide that to you? A. I'm not sure if it was faxed over to me or

10 interoffice. 11 Q. If it was faxed to you, would you have kept the

12 fax? 13 14 A. No. It was a draft document. Q. Are there any computer records that would

15 relate to this? 16 17 18 19 A. Not that I'm aware of. Q. Did you have e-mail at the time? A. Yes. Q. Did you have any e-mail communications with

20 Ms. Roper? 21 22 23 24 25 A. I might have, but I don't recall. Q. Did you look for any e-mail communications? A. Yes, I did. Q. When did you do that? A. When the records request was made.

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75 1 2 3 Q. In this litigation you mean? A. Yes. Q. Did you look for any e-mail communications with

4 Ms. Roper prior to the litigation, for example, in July 5 and August when you were speaking with Ms. Kato? 6 7 A. I don't recall doing so. Q. And what did you do to look for e-mail

8 communications in connection with this case? 9 A. Our computer system has a six-month clock on

10 it. I don't know a better way to express it. And if 11 you don't archive something, it drops off. And I tried 12 to see if there had been something that still managed 13 to be saved. I could not find anything because I did 14 not archive anything with regards to this. 15 Q. Did you inquire with any of the tech people at

16 Kaiser with respect to backup tapes? 17 18 A. No, I did not, sir. Q. Now, the following two pages, 108 and 109,

19 those are also your handwriting? 20 21 22 A. Yes. Q. And what kind of files are these? A. My system is rather loose. I will use what

23 is -- what I can put my notes onto. So this would have 24 been from a notebook that I was using at that time. I 25 switched to a notebook from just writing down on a pad

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76 1 of paper. 2 3 4 Q. These are also phone calls then? A. Yes. Q. So these are the same records although in a

5 different form as the first two pages we were talking 6 about? 7 8 9 10 11 12 13 14 A. Yes, sir. Q. Or first three pages. A. Yes. Q. But it's in a different type of notebook? A. Yes. Q. And that same thing is true for 109? A. Yes. Q. Now, there's a reference here on the last page

15 109, Fernando notes. 16 17 18 19 Do you see that? A. Yes. Q. What does that refer to? A. You know, I've tried to figure out what it

20 refers to. I just cannot recall. 21 Q. So all of these pages would have been

22 maintained not in the daRosa file but in your drawer 23 next to your desk where you keep your telephone 24 records? 25 A. Yes.

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77 1 Q. Now, are any of these records also in your

2 daRosa file? 3 A. I do not believe so. I don't recall seeing

4 them in the file. 5 6 7 8 Q. And what was in the daRosa file? MR. MARTIN: Objection. Asked and answered. You can answer again if you know. THE WITNESS: I gave to counsel everything that

9 I had in the daRosa file. I can't tell you what 10 specifically was in it because I haven't looked in it 11 in a very long time. 12 BY MR. FRIEDMAN: 13 Q. But it's not just these records that I have

14 before you now? 15 16 A. That's correct. MR. FRIEDMAN: Well, Counsel, have they been

17 produced? 18 MR. MARTIN: Well, without them in front of me,

19 I don't know how to tell you whether they've been 20 produced or not. To the extent I've gotten them, 21 they've been produced. As far as I know, they've been 22 produced. 23 BY MR. FRIEDMAN: 24 Q. Describe for me what your files looked like in

25 the daRosa file as best as you can?

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78 1 MR. MARTIN: Objection. Asked and answered.

2 Counsel, it's been asked several times. 3 4 You can answer one more time. MR. FRIEDMAN: I tell you I think is the first

5 time I've asked this question, and I'm going to stick 6 with it until I get an answer. 7 MR. MARTIN: You asked about the daRosa file

8 several times and what's in it. 9 10 Go ahead. You can answer one more time. THE WITNESS: I couldn't tell you what's in it.

11 I understand my obligation when there's a subpoena for 12 records. I gave a copy of all the records I had to 13 counsel. After that, I rely on counsel for what is 14 felt to be appropriate to your inquiry. 15 BY MR. FRIEDMAN: 16 Q. Do you have an understanding that your file was

17 withheld from production to the plaintiff? 18 MR. MARTIN: Objection. Lacks foundation. He

19 wasn't involved in the document production to 20 plaintiff, so he doesn't know that. That's been 21 handled by counsel. You know that. This line of 22 questioning is getting very abusive. I'm asking you to 23 reel it in, Counsel. 24 25 You can go ahead and answer. THE WITNESS: I don't know what counsel gave

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79 1 you or didn't give you. 2 BY MR. FRIEDMAN: 3 Q. So you don't have an understanding that these

4 documents were withheld from us? As you sit here 5 today, you don't have any reason to believe they were 6 withheld from us? 7 8 9 MR. MARTIN: Objection. Lacks foundation. You can go ahead and answer. THE WITNESS: I gave to counsel what I was

10 requested to give. What they produced to you, I do not 11 know because I rely on counsel for such responses. 12 That's all I can give you as an answer. I don't know 13 what was given you, what wasn't given you. When you 14 start to use words like withheld, that implies 15 something that I have no knowledge of. Counsel does 16 our representation. They furnish you what they believe 17 is appropriate. 18 BY MR. FRIEDMAN: 19 Q. Well, that's why I asked you if you had any

20 reason to know that they were withheld from us. 21 22 23 24 MR. MARTIN: Objection. Lacks foundation -THE WITNESS: I'm not going to answer -MR. MARTIN: -- asked and answered. You can answer again if you know. Then we'll

25 move on to another line of questions.

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80 1 BY MR. FRIEDMAN: 2 Q. I think you said you're not going to answer

3 that question, correct? 4 A. No. I answered your question. And why you

5 keep come being back to it, I don't know. But I've 6 answered your question. 7 Q. You said prior to the deposition today that you

8 looked through your notes in preparation for the 9 deposition today -10 11 12 A. No, I did not. Q. -- remember that testimony? MR. MARTIN: Objection. Misstates the

13 testimony. That is absolutely not what he said. 14 You can go ahead and answer.

15 BY MR. FRIEDMAN: 16 Q. You said that prior to the deposition you

17 looked through notes that you had given to counsel. 18 19 20 Do you recall that testimony? A. Yes. Q. Did you look through notes other than these

21 pages that I've handed you with your telephone records? 22 23 A. No. Q. So you did not review any other records other

24 than these six pages? 25 MR. MARTIN: Objection. Misstates the

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81 1 testimony. That is not what he said. 2 3 Go ahead and answer. THE WITNESS: I'm sorry. The question again,

4 please? 5 BY MR. FRIEDMAN: 6 Q. With respect to the notes and calendar

7 information that you provided counsel in connection 8 with this litigation, there are these six pages and no 9 more that you looked at prior to your deposition today, 10 correct? 11 12 A. That's not correct. Q. Okay. What other pages from your notes that

13 you looked at prior to your deposition today? 14 A. From my notes, I looked through what has been

15 presented to you. I looked at nothing else prior to 16 today. 17 18 19 20 21 Q. These six pages? A. From my notes. Q. From your notes, these six pages? A. That's correct. Q. No other pages other than these six did you

22 review prior to your deposition from your notes? 23 24 A. From my notes, no. Q. So the daRosa file that you gave to counsel you

25 did not look through today?

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82 1 2 A. That is correct. MR. FRIEDMAN: Well, Counsel, I will go on

3 record. I have gone through the records. I see no 4 other notes. So if you know of any other documents 5 that were produced from Mr. Mellon's file, can you 6 identify them for me? 7 MR. MARTIN: I'm not going to sit here and do

8 that right now. Your job is to ask him questions and 9 for him to give you answers. I'm not going to sit here 10 and talk about what's been produced and what's not 11 produced. I believe he's answered your questions. 12 Let's move on. 13 MR. FRIEDMAN: Well, it's important because

14 we're in the middle of a deposition with this witness, 15 and this witness has said he produced to you these 16 records, and I don't have them. 17 18 MR. MARTIN: How do you know? MR. FRIEDMAN: Because I brought all the

19 records that you served us. 20 MR. MARTIN: What records has he said he has

21 that you don't think you have? 22 MR. FRIEDMAN: He had notes from the daRosa --

23 he had a whole daRosa file. 24 MR. MARTIN: Okay. And what part of that file

25 did he say he had that you haven't received?

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83 1 MR. FRIEDMAN: I haven't received anything with

2 a daRosa file. There's no label that says daRosa file. 3 There's no documents that says anything. 4 MR. MARTIN: Well, I think he's answered your

5 question. 6 BY MR. FRIEDMAN: 7 Q. Do you know what other documents were in that

8 daRosa file other than -- well, these pages weren't in 9 the daRosa file. 10 11 12 13 What pages in the daRosa file? MR. MARTIN: Objection. Asked and answered. You can answer it again. THE WITNESS: I have not looked in that file in

14 a very long time other than when the request for 15 records. I forwarded it on to counsel what I had in 16 that file. I don't know whether there is any specific 17 other handwritten notes or the like. It's been -- I 18 don't know whatever was the original date of the 19 request. But it's been a very long time, and, frankly, 20 I just don't know what else would be there. And I 21 don't have any idea what you've been given, so I can't 22 answer. 23 BY MR. FRIEDMAN: 24 25 Q. Do you still have the daRosa file? A. Not with me.

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84 1 2 3 4 5 Q. But you still have it at your office? A. Yes. Q. And where is it located? A. At 235 West MacArthur Boulevard, Suite 420. Q. Were you informed to bring all relevant records

6 to this deposition? 7 MR. MARTIN: Objection. We've raised numerous

8 objections to the deposition notice and in particular 9 with the request for production of documents which was 10 improper in that it did not allow 30 days as required 11 by the Federal Rules of Civil Procedure. There are 12 also other numerous objections made as to the 13 deposition request. 14 However -- well, at the next break, the witness

15 and I will discuss it further and see if there's 16 anything further to add. In the meantime, why don't 17 you move on to your next question. 18 MR. FRIEDMAN: Well, we are going to see a

19 motion on this anyway so I guess -20 MR. MARTIN: You haven't established any

21 grounds for a motion, Counsel. So instead of bickering 22 about it, just ask your questions, and let's move on. 23 MR. FRIEDMAN: As I was saying, we are going to

24 have a motion on the question of the EDD testimony. 25 So, Mr. Mellon, you'll have to come back if the Court

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85 1 grants us any relief. 2 In connection with that, we are going to add to

3 it that you produce to us whatever is in your daRosa 4 file. It makes sense to me -- it doesn't take a rocket 5 scientist to figure out that a daRosa file should have 6 been produced to us. 7 MR. MARTIN: Ask a question, Counsel.

8 BY MR. FRIEDMAN: 9 10 Q. Let's look at Exhibit 1. How many references in April of 2007 to

11 Mr. daRosa? 12 MR. MARTIN: Objection. The document speaks

13 for itself. 14 You can go ahead and answer if you know.

15 BY MR. FRIEDMAN: 16 Q. Well, any of the references that refer to

17 Mr. daRosa's case? You know what these references 18 refer to. I don't. You can tell me if any of these 19 refer to Mr. daRosa. 20 A. I see one on April 4th. I see a UI hearing on

21 April 24th. Unless you can see any others, Counsel, 22 those are the only two I see. 23 Q. I didn't see any either, except there is a

24 reference to Kato on April 18th. 25 Is that a reference to Gail Kato?

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154 1 She said she had consult with him. 2 Q. But did you talk with her the importance of

3 documenting that discussion somewhere in his personnel 4 file? 5 6 A. No. I don't believe I did. Q. Did you talk with her about the importance of

7 documenting that anywhere in her files at all in 8 relation to Mr. daRosa? 9 10 A. I don't believe so, sir. Q. And as of today, do you know of any effort by

11 anybody at Kaiser to locate her file? 12 MR. MARTIN: Objection. Calls for speculation.

13 Lacks foundation. 14 15 You can go ahead and answer if you know. THE WITNESS: I think I've said any number of

16 times the files that we were aware of that were in her 17 office were sent off to counsel. Subsequent to that 18 date, there are no other files that I'm aware of that 19 were in Margie's office. 20 BY MR. FRIEDMAN: 21 Q. But you testified at the EDD hearing that you

22 asked her if she had documentation to back it up, and 23 she said she did? 24 A. If that's what it says on the tape, that's what

25 it says.

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155 1 Q. And do you believe that to be the case, that

2 you did, in fact, ask her if she had documentation and 3 she said she did? 4 5 A. I believe I may have asked that, yes. Q. And you told the -- at the hearing, the judge

6 asked you about that documentation, and that was part 7 of the testimony, correct? 8 9 A. I believe so. Q. And you told the judge that since Ms. Roper had

10 left Kaiser had been -- had not located that file? 11 That was your testimony? 12 A. The file that would have had that document,

13 that's what I would have said in reference, not a total 14 file because files as I've continuously said had been 15 forwarded on. 16 Q. Do you know whether Ms. Roper's file -- I mean

17 her supervisory file (sic)? 18 19 A. That's the file I keep referring to, sir. Q. Okay. You never called Mr. daRosa prior to his

20 termination? 21 22 23 24 A. No, sir. Q. You had his phone number? A. Only after he called me. Q. It wasn't available to you in the human

25 resources department?

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156 1 A. I would have had to get it from either

2 Ms. Roper or through whatever was in the personnel file 3 area. The answer is, it's not something that I had his 4 number until I needed to write it down. 5 Q. And you didn't ask Ms. Roper for the phone

6 number? 7 8 A. No, sir. Q. Do you recall now Mr. daRosa testifying at the

9 hearing that he had asked -- that he had -- strike 10 that. 11 Do you recall Mr. daRosa testifying at the

12 hearing that you had accused him of getting the doctors 13 note after the fact? 14 A. I don't recall him accusing me of that, but you

15 want to play it, let's play it. 16 Q. Okay. Well, I want to make sure that you have

17 a memory of it. 18 MR. MARTIN: You just asked him if he did, and

19 he said he didn't. 20 21 22 MR. FRIEDMAN: Now I want to refresh it. Off the record while I find the right location. (Discussion off the record.)

23 BY MR. FRIEDMAN: 24 25 Q. Back on the record. During the EDD hearing -- I'm sorry.

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163 1 BY MR. FRIEDMAN: 2 Q. Let me try to ask that question so that I don't

3 have that issue with you. 4 There was the calls sometime after his

5 termination. One might have been in February. You 6 testified to that, and one was in March. 7 8 A. Uh-huh. Q. After that call and before the time that he

9 contacted you in July, you had called Roper? 10 11 12 13 A. Yes. Q. But you didn't talk to any other supervisor? A. There was no need to. Q. And you didn't make any inquiry with any of the

14 other employees in member services? 15 16 A. No. Q. And you didn't ask to review his personnel

17 file? 18 19 A. No. Q. And you didn't make any notations in any of

20 your records other than what you've produced today? 21 22 A. That's correct. Q. And in the March conversation, you told him

23 that even if he did have the documentation, at this 24 point it's a little late because it should have been 25 presented long sooner.

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164 1 2 3 4 5 Do you recall that? A. I believe that's correct. Q. And that is what you told him? A. Yes. Q. But it was not your job to make that decision,

6 correct? 7 8 A. That's correct. Q. And at the EDD hearing in March of 2007 or

9 April -- I'm sorry -- April of 2007, you told the 10 administrative law judge that to your knowledge Kaiser 11 was unaware of the medical documentation until 12 Mr. daRosa brought it to your office July 31st, 2006? 13 14 A. Yes, I did. Q. You said, by the way, to this date we still

15 have not found this document in our files? 16 17 A. That's correct. Q. But now, in fact, that document does exist in

18 your files? 19 20 A. I don't know that. MR. FRIEDMAN: Mark the next exhibit in order,

21 please. 22 23 (Plaintiff's Exhibit No. 6 marked for Identification.)

24 BY MR. FRIEDMAN: 25 Q. This was Exhibit 10 to the letter that Kaiser's

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165 1 EEO counsel sent to the EEOC. And it's a three-page 2 document. The first page just shows that it was 3 Exhibit 10, and the second and third pages are the 4 same. But the second page has that little stick-um 5 where it says, Margie, this was attached to the mbr 6 concern, Josephine. Now -7 8 9 10 11 A. Excuse me. It says was attached to an mbr. Q. A mbr. What did I say? A. The. Q. I'm sorry. I stand corrected. This shows that Kaiser had, in fact, received

12 the fax and it was directed to Margie by Josephine? 13 MR. MARTIN: Objection. Calls for speculation.

14 Lacks foundation. 15 16 You can answer if you know. THE WITNESS: I don't know how this document

17 came to surface. 18 BY MR. FRIEDMAN: 19 20 Q. I wasn't asking you that. I was asking, it does show that, in fact,

21 Kaiser did receive the fax on January 25th, 2006, and 22 Josephine put Margie's name on it at some point? 23 24 A. I will not speculate -MR. MARTIN: Objection. Calls for speculation.

25 Lacks foundation.

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221 1 STATE OF CALIFORNIA 2 ) ) )

3 COUNTY OF ALAMEDA 4 5 6

I, CATHLEEN M. MEUTER, do hereby certify: That FRANK MELLON, in the foregoing deposition

7 named, was present and by me sworn as a witness in the 8 above-entitled action at the time and place therein 9 specified; 10 That said deposition was taken before me at said

11 time and place, and was taken down in shorthand by me, 12 a Certified Shorthand Reporter of the State of 13 California, and was thereafter transcribed into 14 typewriting, and that the foregoing transcript 15 constitutes a full, true and correct report of said 16 deposition and of the proceedings that took place; 17 IN WITNESS WHEREOF, I have hereunder subscribed my

18 hand this 28th day of August 2008. 19 20 21 22 23 24 25 _________________________________ CATHLEEN M. MEUTER, CSR No. 12950 State of California

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