Free Declaration in Support - District Court of California - California

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UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA ---oOo---

4 FERNANDO DAROSA, 5 6 vs. Plaintiff, No. C07-03114SI

7 KAISER FOUNDATION HEALTH PLAN, INC., 8 Defendants. 9 / 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Taken before KIMBERLY R. JENSEN, RPR CSR No. 12552 August 27, 2008 DEPOSITION OF KENNETH U. AYERS

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2 1 2 INDEX PAGE 4

3 EXAMINATION BY MR. FRIEDMAN 4 5 6 EXHIBITS PAGE 9 38

7 PLAINTIFF'S

8 3 5-page Personnel Action Request 9 10 2-page Visit Verification/Family Leave Health Care Provider 10 Certification dated 7/6/05 11 11 3-page Visit Verification/Family Leave Health Care Provider 12 Certification dated 7/29/05 13 2 6-page Case Status 14 12 15-page Guidelines for the Interactive Process 15 4 Memorandum to File dated 16 December 7, 2005 47

43

58 73

17 6 3-page Visit Verification/Family 83 Leave Health Care Provider Certificate 18 dated 1/24/06 19 5 5-page E-mail strand 20 21 22 23 24 25 109

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3 1 2 3 BE IT REMEMBERED, that pursuant to Notice, and on DEPOSITION OF KENNETH U. AYERS

4 the 27th day of August 2008, commencing at the hour of 5 9:34 a.m., in the offices of AIKEN & WELCH, One Kaiser 6 Plaza, Suite 505, Oakland, California 94612, before me, 7 KIMBERLY R. JENSEN, a Certified Shorthand Reporter, 8 personally appeared KENNETH U. AYERS, produced as a 9 witness in said action, and being by me first duly 10 sworn, was thereupon examined as a witness in said 11 cause. 12 13 14 15 JEREMY L. FRIEDMAN, Attorney at Law, 2801 Sylhowe ---oOo---

16 Road, Oakland, California 94602, appeared on behalf of 17 the Plaintiff. 18 19 DANA L. PETERSON, Seyfarth Shaw LLP, 560 Mission

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

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10 1 BY MR. FRIEDMAN: 2 Q. Are you aware of a fax of a visit verification

3 being received at Kaiser in connection with 4 Mr. daRosa's employment? 5 6 A. No. Q. You're aware, through no discussions with any

7 employees at Kaiser, about the facts of the visit 8 verification? 9 MS. PETERSON: Objection. Vague and ambiguous

10 as to time. 11 THE WITNESS: Not that I'm aware of.

12 BY MR. FRIEDMAN: 13 14 15 Q. At any time? A. Not that I'm aware of. Q. Are you aware of any efforts to search for

16 supervisory files of Margie Roper in connection with 17 this litigation? 18 MS. PETERSON: Can you read back that

19 question, please. 20 21 (Record read.) MS. PETERSON: Objection. Vague and

22 ambiguous. 23 THE WITNESS: Any efforts to search -- Could

24 you repeat that one more time? I'm sorry. 25 (Record read.)

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11 1 THE WITNESS: Yes.

2 BY MR. FRIEDMAN: 3 4 Q. What are you aware of? A. I'm not sure of the dates, but when the first

5 case was apparently filed, and I say apparently because 6 I received communications and e-mail and had a 7 conversation with one of our attorneys -8 MS. PETERSON: That would be privileged so I

9 don't want you to divulge any of that information that 10 you received or discussed. 11 BY MR. FRIEDMAN: 12 Q. Well, the question doesn't ask for the

13 discussion of any substance of any communications. 14 However, if the timing of your search or your knowledge 15 is tied to the timing of discussions with Counsel, I'm 16 entitled to know dates, times, places, things like that 17 and even identities, but don't reveal the substance. 18 19 it. 20 MS. PETERSON: And just to clarify, we're But again, tell me again what you know about

21 talking about going back to the original question: Is 22 he aware of any efforts to search for supervisory file 23 of Margie Roper's. 24 25 MR. FRIEDMAN: Yes. THE WITNESS: Yes, when it came to my

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12 1 attention and I was asked to see if we had any 2 documentation, I believe, though I don't know this, 3 that it may have been in response to the subpoena, but 4 I was never served with a subpoena, but I did go back 5 and see if there was any documentation in regards to 6 this particular case at that time. That was well over 7 a year ago. 8 BY MR. FRIEDMAN: 9 10 Q. Where did you look for documentation? A. I looked within my files on Margie Roper, and

11 then I also went to her office, and I don't recall if I 12 looked at that time or if I had one of the other staff 13 people look to see if there was any files in her 14 office. 15 Q. If you had somebody else in your office look,

16 would that person have reported to you? 17 18 A. Yes. Q. And you would have relied upon the information

19 that that person gave you? 20 21 22 23 A. Correct. Q. What did you find? A. I found nothing. Q. Did you find any supervisory files at all

24 belonging to Ms. Roper? 25 A. No.

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14 1 Could I have the last question and answer read

2 back, please. 3 (Record read.)

4 BY MR. FRIEDMAN: 5 6 Q. Why not? A. Because I had terminated Ms. Roper at the

7 time. She was no longer an employee with Kaiser. 8 9 10 Q. Any other reasons? A. No. Q. Are you aware of any effort by Kaiser to

11 provide the EEOC with records in connection with 12 Mr. daRosa's termination? 13 14 A. No. MS. PETERSON: Objection. Calls for

15 speculation. Give me an opportunity to get my 16 objection on the record. 17 THE WITNESS: No.

18 BY MR. FRIEDMAN: 19 Q. Are you aware of -- do you know who Frank

20 Mellon is? 21 22 A. Yes. Q. Are you aware that he gave testimony in

23 connection with Mr. daRosa's employment at an EDD 24 hearing in March of 2007? 25 A. No.

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19 1 2 Q. Is that in Arizona or here? A. No, it's here or -- it was actually in San

3 Francisco. Actually my office was here in Oakland. 4 The corporate office -- we had two split offices. 5 Corporate office was in San Francisco, but my group 6 office was here in Oakland. 7 Q. When was it that you left Kaiser

8 approximately? 9 A. I've been back for five years now, so about

10 ten years ago. 11 12 13 14 Q. 1998 approximately? A. Approximately then. Q. And did you work there for five years? A. I worked there for five years in a couple of

15 different positions in that period of time. 16 17 Q. And you returned to Kaiser approximately when? A. I believe it was five years ago this past

18 July. So last month was five years. 19 20 21 22 Q. So July of 2003? A. That's approximately right. Q. Why did you leave Kaiser in the first place? A. I got recruited to move on to another offer I

23 couldn't refuse. 24 25 Q. And why did you return back to Kaiser? A. Got recruited to come back to Kaiser.

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20 1 2 3 4 Q. What was your position? A. When I came back? Q. Yes. A. I was quality -- let me think about it.

5 Quality and Service Leader. 6 7 Q. And you were director? A. I was -- no, I was on the leadership team at

8 that time. Kaiser doesn't use the terminology at local 9 level VP, but it was a VP-level position. 10 11 Q. How long did you work in that position? A. Still, in essence in, that position. We

12 changed the titles of that position, and also about 13 three-and-a-half years ago split the responsibilities. 14 By that I mean when I was a quality service leader, I 15 had administrative accountability for those areas 16 across our Oakland and Richmond campuses and also 17 Hayward and Fremont campuses. 18 19 Q. And what -A. And about three-and-a-half years ago, the

20 organization decided to make some changes to the 21 administrative structure of hospitals, and so they 22 divided things out. And I chose to stay with Oakland 23 and Richmond, because that's where my -- I had grown up 24 there. And there was positions created as an assistant 25 administrator for quality and member services at

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21 1 Hayward, Fremont, and that position was filled by -2 MS. PETERSON: It's -- you're beyond the scope

3 of the question. Just answer the question. 4 BY MR. FRIEDMAN: 5 6 Q. I did want get a little background. So the position that they created that became

7 created after the split in duties about 8 three-and-a-half years ago, what did that involve? 9 A. It involves what I'm doing now, administrative

10 responsibility for a number of support departments. 11 Q. And so you've been in the same position

12 essentially for the last three-and-a-half years? 13 14 A. Yes. Q. Okay. When did Margie Roper begin her

15 reporting to you? 16 A. Her direct reporting to me approximately

17 three-and-a-half to four years ago when we did the 18 split. 19 Q. How many direct reports did you have at that

20 time? 21 22 A. Approximately eight. Q. And she remained a direct report to you until

23 the time of her termination? 24 25 A. Correct. Q. What was the date of her termination?

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22 1 2 A. I don't recall. Q. Do you recall whether or not -- well, I'm

3 going to delay that question. Your counsel requested 4 that we designate what part of the deposition testimony 5 is about. The -- Kaiser's production of you, pursuant 6 to the 30(b)6 deposition notice which seeks the person 7 with most knowledge about the circumstances leading up 8 to Ms. Roper's termination. 9 Mr. daRosa was terminated in January of 2006,

10 and then there were discussions in the human resources 11 department between Mr. Mellon and Gail Kato in August 12 of 2006. By then, it says in the communication that 13 Ms. Roper was terminated. 14 Does that help you identify with any more

15 particularity where in time Ms. Roper was terminated? 16 MS. PETERSON: I'm going to object to the

17 extent that it misstates facts or assumes facts not in 18 evidence, but you can answer the question. 19 THE WITNESS: Yes. You asked me if I can

20 remember the date. I cannot. . 21 BY MR. FRIEDMAN: 22 23 Q. Okay. A. But I would say it was in March, April of that

24 year. 25 Q. That year being 2006?

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23 1 2 A. Correct. Q. And in August of that year, and September of

3 that year, did you have any management or supervisory 4 authority over the human resources department? 5 6 A. No. Q. Did you approve the decision to terminate

7 Mr. daRosa? 8 9 A. Yes. Q. At the time that you approved his termination,

10 you did not review any records related to him? 11 MS. PETERSON: Object. It misstates facts.

12 BY MR. FRIEDMAN: 13 14 15 16 17 18 Q. Other than the ones that you testified to? A. Reviewed documents, no. Q. Okay. Did you review any information? A. I had discussions with Margie Roper. Q. Did you have any discussions with anyone else? A. Not that I recall specifically. However, it

19 would have been my standard practice to involve HR in 20 any situations even close to termination of an 21 employee. 22 Q. How would you have held your discussions with

23 human resources pursuant to your practice? 24 MS. PETERSON: Objection. Vague and

25 ambiguous.

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36 1 THE WITNESS: In case we get into litigation,

2 in case it's appealed. We have an appeals process for 3 terminations within Kaiser. 4 BY MR. FRIEDMAN: 5 Q. At the time that you went through Ms. Roper's

6 files, were you aware that Mr. daRosa was contesting 7 his termination? 8 9 10 11 A. No. Q. When did you first become aware of that? A. I don't recall the exact date. Q. Did you -- in connection with Mr. daRosa's

12 termination, did you rely upon the information that was 13 provided to you by Ms. Roper? 14 15 A. I did. Q. Did you conduct any independent investigation

16 beyond what she told you? 17 18 A. No. Q. Did you also make a decision with respect to

19 Mr. daRosa's request that he come back and do his job 20 after his termination? 21 MS. PETERSON: Objection. Vague and

22 ambiguous. 23 THE WITNESS: I was not aware that he had a --

24 BY MR. FRIEDMAN: 25 Q. At any time?

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44 1 was also produced to the EEOC as Exhibit 8 to a letter 2 that Kaiser had sent to the EEOC. It's a three-page 3 document. Have you ever seen these documents before? 4 MS. PETERSON: I'm going to object to the

5 preferatory statement to the question as it assumes 6 facts not in evidence and lacks foundation. 7 THE WITNESS: Have I ever seen this specific

8 document before? 9 BY MR. FRIEDMAN: 10 11 12 Q. Yes. A. No. Q. Do you have any knowledge as to how these

13 records were made part of the file with the EEOC by 14 Kaiser? 15 MS. PETERSON: Object. It calls for

16 speculation. Lacks foundation. 17 THE WITNESS: No.

18 BY MR. FRIEDMAN: 19 Q. It's a -- these are more Visit Verification

20 Forms, correct? 21 22 A. Correct. Q. And if you had seen these forms during an

23 employment, you would understand them to be forms that 24 an employee has where he gets a signature from his 25 doctor documenting that he needs to take time off?

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45 1 MS. PETERSON: Objection. Incomplete

2 hypothetical. Lacks foundation. Calls for 3 speculation. 4 THE WITNESS: Yes.

5 BY MR. FRIEDMAN: 6 Q. Were you aware that Mr. daRosa's medical leave

7 of absence in July as exemplified in Exhibit 10 was 8 extended to September 1st and then to September 6th? 9 10 A. No. MS. PETERSON: Objection. Compound. Lacks

11 foundation. Calls for speculation. 12 THE WITNESS: No.

13 BY MR. FRIEDMAN: 14 Q. Do you know where in Kaiser's files these

15 Visit Verifications are maintained? 16 MS. PETERSON: Objection. Calls for

17 speculation. It's vague and ambiguous. Referring to 18 the specific ones that have been marked Exhibit or in 19 general? 20 MR. FRIEDMAN: He said he doesn't know about

21 these. So these are just questions that have to do 22 with his answers. And if we listen to the questions 23 and the answers from before, then the clarifications 24 that you continuously request are unnecessary. 25 BY MR. FRIEDMAN:

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46 1 Q. So do you know where these records are

2 normally maintained at Kaiser? 3 4 5 A. Several locations. Q. What several locations? A. By that I mean one is given to the patient.

6 One is put into the medical record of the patient, the 7 out-patient medical record. And one the patient -8 excuse me, the employee, in this case the patient, 9 would share one with their supervisor. 10 Q. What does the supervisor do, or what is the

11 supervisor supposed to do with these Visit 12 Verifications when they receive them? 13 14 A. Maintain copies. MS. PETERSON: Objection. Calls for

15 speculation. Vague and ambiguous. 16 THE WITNESS: Maintain copies of them.

17 BY MR. FRIEDMAN: 18 19 Q. So if -- where do they maintain copies? MS. PETERSON: Objection. Calls for

20 speculation. Vague and ambiguous. 21 THE WITNESS: In the personnel file for the

22 employee. 23 BY MR. FRIEDMAN: 24 Q. Have you ever looked through Mr. daRosa's

25 personnel file?

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47 1 2 3 A. No. (Plaintiff's Exhibit No. 2 marked for identification.)

4 BY MR. FRIEDMAN: 5 Q. Mr. Ayers, I am handing you what has been

6 previously marked as deposition Exhibit 2, and it is a 7 collection of pages that were produced from Kaiser's 8 records, I believe, relating to human resources. Have 9 you ever seen this document before? 10 11 A. No. Q. Are you aware of any records at Kaiser that

12 contain case numbers, case status, case summaries 13 involving employee contacts with human resources or 14 request for files, things like that at Kaiser? 15 16 17 A. No. Q. Have your ever heard of KHRMIT, K-H-R-M-I-T? A. KHRMIT. I have a recollection of KHRMIT.

18 There's a series of reports or a series of programs, I 19 believe, that comes out of our occupational medicine 20 departments. And they have funny names to them, like 21 KHRMIT or Flintstone and so forth. I recall that from 22 my time when I was a director here, but that's my 23 recollection of KHRMIT, but it may not be exactly part 24 of that, but I recall something along those lines. 25 Q. If you could turn to the second to the last

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48 1 page of this document, Bates-stamped 660. 2 3 A. Okay. Q. There's a reference on August 19, 2005, Case

4 Number 15265850. Do you see that? 5 6 7 8 A. Yes, I do. Q. Do you know what that refers to? A. No. Q. Counsel, do you have any additional documents

9 for production during this deposition? 10 MS. PETERSON: No, I do not. And you received

11 our objections, written objections, correct. 12 MR. FRIEDMAN: But you don't have any

13 documents with you? 14 MS. PETERSON: We do not, no.

15 BY MR. FRIEDMAN: 16 Q. Mr. Ayers, if you turn to the first page of

17 this document, there's an entry April 4, 2007 entitled 18 inquiry of medical leave? 19 A. April 4, 2007. Are you referring to 267 --

20 last three digits 267 the Case Number. 21 22 23 Q. "Yes"? A. Yes, I have it here. Q. And the way I understand this document, in the

24 case description, the information runs up rather than 25 down. Do you know what I'm saying?

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49 1 2 A. You read it this way (indicating). Q. Yes, in term of any information that would be

3 related to that case would be on the line, and the 4 lines above rather than the lines below. 5 6 7 8 9 10 11 12 13 Can you read to yourself the case description? A. Starting with NLVS? Q. Yes. A. And reading downward? Q. Just read it to yourself, sir. A. All right. Q. You've had an opportunity to review? A. Yes. Q. Do you know what is referred to with respect

14 to a disability in the entry there on case description? 15 16 MS. PETERSON: Objection. Vague. MR. FRIEDMAN: Sorry.

17 BY MR. FRIEDMAN: 18 Q. A case had been opened due to he had been out

19 of disability. Do you see that? 20 21 A. I see that. Q. Do you know what references "out on

22 disability" means? 23 MS. PETERSON: Objection. Vague and

24 ambiguous. Also objection to the extent it calls for a 25 legal conclusion.

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50 1 2 THE WITNESS: I can assume. MS. PETERSON: We don't want you to guess or

3 speculate. You're asking him if he knows what this 4 means, right? 5 MR. FRIEDMAN: Counsel, please don't interrupt

6 your witness. The objections can be preserved on the 7 record. There's no need for you to coach or interrupt 8 an answer. 9 10 11 THE WITNESS: I can take this as I read it. MR. FRIEDMAN: Yes. THE WITNESS: Case was opened due -- doesn't

12 read correctly due to he had been out on disability. 13 BY MR. FRIEDMAN: 14 Q. Do you know what that means? He had been out

15 on disability? 16 MS. PETERSON: Objection. Calls for

17 speculation and calls for a legal conclusion. 18 THE WITNESS: I can. I can take it for how it

19 reads. 20 BY MR. FRIEDMAN: 21 22 23 Q. Yes, only what you understand? A. That he has been out on disability. Q. And after that it says and TC coding was

24 needed. Have you ever heard of timecard coding in 25 respect to a disability claim?

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51 1 2 3 A. Yes. Q. What would be the connection? A. Disability is covered as other paid time --

4 other than paid time, regular paid time. So we code 5 our time cards when they're a patient. 6 Q. Had you ever discussed with Ms. Roper that

7 Mr. daRosa had been out on disability and Ms. Roper 8 needed a timecard coding for him in August of 2005? 9 10 A. No. MS. PETERSON: Objection. Lacks foundation.

11 Assumes facts not in evidence and it's compound. 12 BY MR. FRIEDMAN: 13 14 15 Q. And the answer was? A. Not that I recall. Q. Have you ever been aware that Fernando had

16 opened up a disability claim or that Ms. Roper had? 17 18 19 A. No. Q. How was the disability claim opened? MS. PETERSON: Object that it calls for

20 speculation. Vague and ambiguous. Overbroad. Also to 21 the extent that the term disability calls for a legal 22 conclusion. 23 THE WITNESS: Typically work with HR to open a

24 claim. Follow policy and procedure to open a claim 25 with their direction.

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57 1 in connection with medical orders to take time off 2 work. 3 MS. PETERSON: Objection. Incomplete

4 hypothetical. Calls for speculation. Vague and 5 ambiguous. 6 7 THE WITNESS: Can you repeat that? MR. FRIEDMAN: I'll ask the court reporter to

8 repeat that. 9 10 (Record read.) MS. PETERSON: Can you read back my

11 objections, please. 12 13 (Record read.) THE WITNESS: One of the roles of a manager is

14 to address the attendance and absence of an employee. 15 I would expect that to be the case here. In fact, I 16 know it was the case here. Each employee's reasons are 17 different, and depending on those reasons, I think 18 action would be taken based on those. 19 BY MR. FRIEDMAN: 20 Q. What is a manager-supervisor supposed to do

21 when the absences are related to medical orders to take 22 time off? 23 MS. PETERSON: Objection. Vague and

24 ambiguous. Incomplete improper hypothetical. Calls 25 for speculation.

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58 1 THE WITNESS: We note those. We, of course,

2 honor the request for time off. Depending compensation 3 is associated with that guided by HR. And the manager 4 would work with the employee to get that employee back 5 to work. 6 MR. FRIEDMAN: Mark the next Exhibit please --

7 it will be 12. 8 9 (Plaintiff's Exhibit No. 12 marked for identification.)

10 BY MR. FRIEDMAN: 11 Q. I've handed you a document produced by Kaiser

12 in this litigation entitled "guidelines for the 13 interactive process." Have you ever seen a document 14 like this? 15 MS. PETERSON: Take a second to review. It's

16 very long. 17 THE WITNESS: I can't say that I've -- that

18 I'm reviewed -- or I've seen this particular document 19 before, no. 20 BY MR. FRIEDMAN: 21 Q. Are you familiar with Kaiser's policies and

22 procedures in connection with the interactive process 23 as it's used? 24 A. Typically when I hear interactive process, I

25 don't associate it with what this is associated with.

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59 1 I associate it with a process we have in one of your 2 unions around disciplinary processes. 3 4 5 Q. Okay. A. I am familiar -- so -Q. Okay. Are you familiar in general with

6 Kaiser's policies about the role of the supervisor to 7 interact with the employee regarding accommodations for 8 disabilities? 9 10 A. Yes, I am. Q. And looking at the section one here, is it

11 true that Kaiser has an obligation to accommodate 12 employees when their medical conditions interfere with 13 their ability to work? 14 MS. PETERSON: Object that it calls for a

15 legal conclusion. He's not a lawyer. 16 THE WITNESS: Yes.

17 BY MR. FRIEDMAN: 18 Q. Do -- and employees don't have to use specific

19 words to request accommodation, correct? 20 MS. PETERSON: And I'm going to object to the

21 extent it calls for a legal conclusion. 22 BY MR. FRIEDMAN: 23 Q. This is in reference to a question number two

24 or a perception section number two, sorry. 25 MS. PETERSON: Same objection. It calls for a

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60 1 legal conclusion. It's vague and ambiguous and calls 2 for speculation. 3 THE WITNESS: Could you repeat that, please.

4 BY MR. FRIEDMAN: 5 Q. Well, when an employee is interacting with an

6 employer over -- and in this case Kaiser, the employer, 7 interacting over accommodations for disability, the 8 employee doesn't actually have to use the word, for 9 example, accommodation in order to trigger the 10 supervisor's responsibilities in this regard. 11 MS. PETERSON: Object. Incomplete

12 hypothetical. Calls for speculation. Calls for a 13 legal conclusion. 14 THE WITNESS: I'm not sure I understand what

15 you're -- where you're trying to go with that. 16 MR. FRIEDMAN: 17 18 19 Q. I'm not trying to go anywhere. A. I'm not sure I understand your question then. Q. Okay. Is it true that an employee can request

20 accommodation from Kaiser? 21 22 A. Yes. Q. And in making that request, does he have to

23 use the word accommodation? 24 MS. PETERSON: Objection. Incomplete

25 hypothetical. Calls for speculation, also calls for a

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61 1 legal conclusion. 2 3 this? 4 BY MR. FRIEDMAN: 5 6 7 8 9 10 Q. And to your knowledge? A. Having read this now? Q. Yes. A. It's not necessary. Q. Did you ever believe it was? A. I believed that in past -- my experience with THE WITNESS: Reading this here? Having read

11 this is that an employee comes in and asks for -- I've 12 got this disability, I've got information from my 13 physician and then accommodation discussion will occur. 14 Q. And in your understanding of it, prior to, did

15 you believe that the employee had to use the word 16 accommodation in order to trigger that event? 17 18 A. No. Q. Did he have to actually say the word "I am

19 disabled" or those words? 20 MS. PETERSON: Object. Incomplete

21 hypothetical. Calls for speculation. 22 THE WITNESS: No.

23 BY MR. FRIEDMAN: 24 Q. And isn't it true under Kaiser's policies that

25 as long as Kaiser was on notice that the employee

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62 1 cannot perform his or her duties as a result of a 2 physical condition that that would trigger the -- this 3 interactive process. When I use interactive process, 4 I'm talking about in this context that we're talking 5 about today? 6 MS. PETERSON: Object. It's vague and

7 ambiguous. It calls for a legal conclusion and it 8 calls for speculation, and I'm also going to object it 9 calls for a legal conclusion. 10 11 that. 12 BY MR. FRIEDMAN: 13 14 Q. Why not? A. I just -- the way you phrased it, I'm just THE WITNESS: I can't answer yes or no to

15 not sure that that would occur. 16 Q. Okay. Do you believe that as long as Kaiser's

17 supervisor is on notice that the employee has a health 18 problem and that that health problem is interfering 19 with the -- his ability to perform his jobs, do you 20 have an understanding that as long as Kaiser has 21 knowledge of that that the responsibility to engage in 22 the interactive process has been triggered? 23 MS. PETERSON: Objection. Incomplete

24 hypothetical. Calls for a legal conclusion. Calls for 25 speculation. Vague and ambiguous.

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63 1 THE WITNESS: I understand that part of your

2 statement is true. When you throw in interactive 3 process, I don't refer to it that. I never have until 4 I saw this document. 5 But we have an obligation to reasonably

6 accommodate our employees, and that would have occurred 7 or should have occurred. 8 BY MR. FRIEDMAN: 9 Q. And the process of engaging in a discussion

10 with the employee about his needs and needs for 11 accommodation and what the work requires, that's what I 12 meant when I meant interactive process. And for 13 purposes of today's deposition, if I say interactive 14 process, I'm referring to that as opposed to the union 15 setting you mentioned earlier. Do you understand that? 16 17 A. Yes. Q. So is it your understanding then the

18 responsibility to engage in the interactive process is 19 triggered as long as Kaiser is aware of the presence of 20 a health condition that has interfered with the 21 employee's ability to perform the duties? 22 MS. PETERSON: Object. It calls for a legal

23 conclusion. It's an incomplete hypothetical and calls 24 for speculation. 25 THE WITNESS: Let me answer it this way. An

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64 1 employee comes to me and says, I cannot perform the 2 duties of my job. I need some assistance here. We 3 would get into a discussion about reasonable 4 accommodation. 5 BY MR. FRIEDMAN: 6 Q. And that should happen at Kaiser under any of

7 your -- under any of your direct reports? 8 9 10 A. Correct. Q. Okay. A. Again, based on the circumstances of what

11 their absences is related to. 12 Q. Were you aware that there was ever any

13 discussion with Mr. daRosa in this case regarding 14 accommodations? 15 16 A. No. Q. Were you ever aware of any discussion that

17 Ms. Roper had with Mr. daRosa after his return from the 18 medical leave as shown in exhibits 10 and 11? 19 MS. PETERSON: Objection. Assumes facts not

20 in evidence. 21 THE WITNESS: I was not aware of those

22 documents, so I could not be aware of any discussions 23 that she might have had following receipt of those 24 documents. 25 BY MR. FRIEDMAN:

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65 1 Q. Turn to the second page, question number

2 three? 3 4 5 6 7 8 9 10 A. Uh-huh. Q. And if you see the last bullet item? A. Uh-huh. Q. And -A. The one that's underlined. Q. Yes. A. Uh-huh. Q. And it's underlined and it says: "Document

11 the interactive process, include written communication 12 to the employee confirming the actions taken or 13 agreements reached." 14 Did you understand that that was required of

15 Kaiser supervisors at the time of Mr. daRosa's 16 termination? 17 MS. PETERSON: Objection. Incomplete

18 hypothetical. Calls for speculation. Vague and 19 ambiguous. And also object to the extent it calls for 20 a legal conclusion. 21 THE WITNESS: No. And I had no knowledge that

22 we had a situation of disability as I stated before. 23 MR. FRIEDMAN: Can I have my question read

24 back to me. 25 (Record read.)

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66 1 BY MR. FRIEDMAN: 2 Q. So my question to you is: Did you understand

3 that Kaiser supervisors were supposed to document any 4 interactive process at that time, whether it happened 5 or not with Mr. daRosa, do you understand -- did you 6 know that this was an obligation at that time? 7 MS. PETERSON: Objection. Assumes facts not

8 in evidence. It's an incomplete hypothetical and also 9 object to the extent it calls for a legal conclusion. 10 THE WITNESS: As relates to the interactive

11 process, no, I was not. 12 BY MR. FRIEDMAN: 13 14 Q. Do you know why that line is underlined? MS. PETERSON: Objection. Calls for

15 speculation. 16 THE WITNESS: No.

17 BY MR. FRIEDMAN: 18 Q. Have you ever seen any documentation of any

19 interactive process between Ms. Roper and Fernando? 20 21 22 23 A. No. Q. If you turn to the next page, section five. A. Page three? Q. Yes. It talks about accommodations. Is it

24 true that accommodations for employees with 25 disabilities can include leave or extension of leave

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67 1 paid or unpaid? 2 MS. PETERSON: Objection. Incomplete

3 hypothetical. Calls for a legal conclusion. Compound. 4 THE WITNESS: Yes.

5 BY MR. FRIEDMAN: 6 Q. Did you ever have any discussions with

7 Ms. Roper about leave of absences in connection with 8 Mr. daRosa? 9 10 A. Not that I recall. Q. Did you ever hear anything from Ms. Roper in

11 connection with Mr. daRosa's employment other than his 12 absences? 13 14 A. No. Q. Was there ever a discussion to your knowledge

15 about allowing him to take naps at work? 16 17 A. No. Q. Was there ever a discussion to your knowledge

18 about changes in the temperature? 19 20 A. No. Q. Had you ever had a discussion in connection

21 with Mr. daRosa -- sorry. Strike that. 22 Have you ever had a discussion with Ms. Roper

23 in connection with Mr. daRosa about him being present 24 at work but not being engaged in productive activity? 25 A. I can vaguely recall some discussions around

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70 1 accommodations. 2 BY MR. FRIEDMAN: 3 Q. And Kaiser can ask the employee to see

4 Kaiser's choice of a doctor when there is insufficient 5 information provided. Is that your understanding? 6 MS. PETERSON: Objection. Calls for legal

7 conclusion. Vague and ambiguous. Incomplete 8 hypothetical. 9 THE WITNESS: I have that understanding now

10 after having read that. 11 BY MR. FRIEDMAN: 12 13 Q. But you didn't understand that back then? MS. PETERSON: Objection. Vague and ambiguous

14 as to time. 15 THE WITNESS: No.

16 BY MR. FRIEDMAN: 17 Q. Do you know whether or not anybody at Kaiser

18 ever asked Mr. daRosa to submit to Kaiser's own 19 doctors' for medical examination? 20 21 22 23 A. No. Q. If you turn to section 16. A. All right. Q. Must an employee -- must Kaiser keep the

24 disabled employee's job open during a medical leave? 25 MS. PETERSON: Objection. Vague and

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71 1 ambiguous. Incomplete hypothetical. Calls for a legal 2 conclusion. 3 THE WITNESS: Keep the position open. Yes.

4 BY MR. FRIEDMAN: 5 6 Q. Unpaid? A. And by that we can hire, and we have hired,

7 temporary people to come in and fill that job. But 8 when the employee is able to return to work, depending 9 on the extent of the absence, we can move that person 10 back into that job or a similar job is my 11 understanding. 12 Q. Did you ever have any discussions with

13 Ms. Roper about keeping Fernando's job open? 14 15 A. No. Q. Did you ever have any discussions with anybody

16 at Kaiser with respect to keeping Fernando's job open? 17 18 A. No. Q. Do you have any recollection of any discussion

19 about reassignment of Mr. daRosa? 20 21 A. No. Q. I'm referring to question 17, which starts at

22 the bottom of that page but goes over to the next. 23 24 A. Okay. Q. Is it true that your direct reports are

25 supposed to take steps to avoid employees becoming lost

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74 1 BY MR. FRIEDMAN: 2 Q. Mr. Ayers, I'm handing you a document which

3 has been marked as Deposition Exhibit 4. It's the 4 December 7, 2005 memo to the file by Ms. Roper. 5 6 7 8 A. All right. Q. Have you ever seen this document before? A. I don't recall seeing this specific document. Q. Do you recall having a discussion with

9 Ms. Roper about the information that's contained in 10 this document? 11 12 13 A. Somewhat. Q. What do you recall? A. The number of absences that Mr. daRosa had

14 over a period of time and actions of what we need to do 15 to manage those from a standpoint of continual absences 16 and so forth. 17 Q. Do you recall the discussion with her about 32

18 days being missed July 7th to August 22nd? 19 20 A. Not specifically, no. Q. Did you ask her why Mr. daRosa had missed so

21 much time? 22 23 24 A. Yes. Q. What did she say? A. From my recollection she said she has -- he's

25 just out a lot. Nothing related to medical leave.

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92 1 termination? 2 MS. PETERSON: I'm going to object that it

3 calls for speculation regarding what Kaiser has or has 4 not been able to locate. 5 THE WITNESS: I can confirm that I have not

6 been able to locate anything that I had in my 7 possession. 8 BY MR. FRIEDMAN: 9 Q. And also you can confirm that you were not

10 able to find any documents that Ms. Roper left under 11 your authority and supervision? 12 13 A. That's correct. Q. Are you aware that Mr. Mellon testified during

14 his deposition that he had spoken with Ms. Roper about 15 the documentation of verbal warnings, but never 16 actually saw any documents? 17 18 A. No. Q. If you had known that Mr. daRosa's physician

19 had given him a medical leave on January 24th for the 20 25th until March of 2006, at the time that Mr. daRosa 21 was terminated for being a no-call/no-show, and the 22 medical documentation that he received from the doctor 23 stated that his medical condition interfered with his 24 ability to work, would that have changed your decision 25 to approve his termination?

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93 1 MS. PETERSON: Objection. Incomplete

2 hypothetical. Calls for speculation. Vague and 3 ambiguous and compound. 4 THE WITNESS: I'm sorry to have to ask you,

5 but can you ask the question -- or repeat the question? 6 7 (Record read.) THE WITNESS: It would have played in to a

8 decision around that. I cannot tell you whether it 9 would have changed that or not. 10 BY MR. FRIEDMAN: 11 12 Q. How would it have played in? A. It would have factored in with the information

13 that was provided to me. 14 Q. And how would it impact on the other

15 information that was provided to you? 16 MS. PETERSON: Objection. Calls for

17 speculation. Incomplete hypothetical. 18 THE WITNESS: Again, I can only -- and I

19 can't -- I can only speculate. I don't want to do 20 that. But I would have factored that information into 21 all the other information we have about absences and so 22 forth and would have made a decision at that point 23 based on that additional information. I can't tell you 24 if it would have been any different, because I don't 25 recall all of the information that was -- because I

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94 1 don't recall all the information that we were 2 addressing specifically. 3 BY MR. FRIEDMAN: 4 Q. Well, specifically, if you had known that

5 Mr. daRosa had delivered a copy of the medical leave, 6 which was Exhibit 11. Oh, sorry. The January here, 7 Exhibit 6? 8 9 A. All right. Q. If you had known that Exhibit 6 had been

10 hand-delivered and faxed to member services prior to 11 January 27th, do you think it would have been 12 appropriate to terminate plaintiff for being a no-call/ 13 no-show? 14 MS. PETERSON: Objection. Incomplete and

15 improper hypothetical. Calls for speculation. 16 Compound and vague and ambiguous. Also assumes facts 17 not in evidence and lacks foundation. 18 THE WITNESS: This would have not -- if I had

19 this information or my manager had this information, 20 this was three days prior to -- three days, two days 21 prior to his termination; is that correct? 22 BY MR. FRIEDMAN: 23 24 25 Q. Yes? A. I would not have considered it a no-show. Q. And if you had known that Fernando had been

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95 1 taken off in July and August referring to Exhibits 10 2 and 11, due to a medical condition in 2005, would you 3 have approved his termination? 4 MS. PETERSON: Objection. Incomplete

5 hypothetical, assumes facts not in evidence, improper 6 hypothetical, lacks foundation. 7 THE WITNESS: I cannot answer that yes or no,

8 again without the facts would factor in. 9 BY MR. FRIEDMAN: 10 Q. Well, tell me, how would it factor in? If you

11 had knowledge that Mr. daRosa had suffered from a 12 medical condition and the medical condition caused 13 uncontrolled sleep attacks at work and that his doctor 14 had taken him off work for a period of time in July and 15 August of 2005, and that he had returned to work on a 16 trial basis but continued to have absences around -17 because of his medical condition and he had provided 18 with Ms. Roper the information related to that, do you 19 think it would be appropriate to have given him this 20 disciplinary warning on December 7th including those 21 days where he was off on -- as a result of medical 22 leave? 23 MS. PETERSON: Objection. Incomplete and

24 improper hypothetical. Calls for speculation. Lack of 25 foundation.

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96 1 THE WITNESS: If the way you laid it out, with

2 the assumptions that you made, I would have relooked at 3 the whole issue of his absences. 4 BY MR. FRIEDMAN: 5 Q. Do you think it would have been appropriate

6 for Ms. Roper to terminate Mr. daRosa if those facts 7 were known? 8 MS. PETERSON: Objection. Incomplete and

9 improper hypothetical. Calls for speculation. Vague 10 and ambiguous and lacks foundation. Assumes facts not 11 in evidence. 12 THE WITNESS: As you laid it out, as I sit

13 here today, I don't believe I would have approved 14 termination, if I had known those facts. 15 BY MR. FRIEDMAN: 16 Q. Would it have been appropriate for Ms. Roper

17 to keep those facts from you in connection with 18 Mr. daRosa's termination? 19 MS. PETERSON: Objection. Calls for

20 speculation. Vague and ambiguous. Incomplete 21 hypothetical. 22 THE WITNESS: No.

23 BY MR. FRIEDMAN: 24 Q. Let me jump to the part of the deposition

25 where we've asked you to appear as the person with the

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112 1 e-mail? 2 A. I could research it again, but I don't believe

3 I will find anything, because of the practice of 4 deleting things from our box. 5 6 7 Q. Is there any backup tapes? A. That I don't know. Q. You never made an inquiry with any of the tech

8 people at Kaiser about? 9 10 A. No. Q. After looking at Exhibit 5, does this jog your

11 memory of any discussions you had with either 12 Mr. Mellon or Ms. Kato about Mr. daRosa? 13 A. By jogging my memory, do I recall that we had

14 a discussion or I received this e-mail, no. 15 Q. Do you have any general recollection of any

16 discussion with either of those individuals about Mr. 17 daRosa? 18 A. All I can state is that it would not be

19 unusual for me to involve these two individuals in 20 discussions about this gentleman. 21 Q. Mr. Mellon testified that he had spoken with

22 you about Mr. daRosa's request that his job be given 23 back to him and that you decided that it was no longer 24 available to him. Do you have any memory of that? 25 A. No, I do not.

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113 1 Q. So as you sit here today, you have no belief

2 that you were responsible for a decision that 3 Mr. daRosa was not rehirable? 4 MS. PETERSON: Objection. Misstates his prior

5 testimony. 6 THE WITNESS: I don't believe I had this

7 knowledge to even consider whether or not we would 8 rehire him or not. 9 BY MR. FRIEDMAN: 10 Q. And you were not aware that Fernando had

11 called Frank Mellon in mid-February, correct? 12 13 14 15 A. That Mr. daRosa had called him? Q. Yes. A. I was not aware of that. Q. And you're not aware that Mr. Mellon told --

16 was told by Fernando that he had been terminated while 17 he was off on medical leave? 18 MS. PETERSON: Objection. Assumes facts not

19 in evidence. Lacks foundation. 20 THE WITNESS: No.

21 BY MR. FRIEDMAN: 22 Q. And you were unaware that Mr. daRosa told Mr.

23 Mellon that he had medical documentation from his 24 doctor for that absence? 25 MS. PETERSON: Objection. Assumes facts not

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114 1 in evidence. Lacks foundation. 2 THE WITNESS: I don't recall that.

3 BY MR. FRIEDMAN: 4 Q. And you were unaware that Fernando had told

5 Mr. Mellon that he had provided that documentation to 6 Mrs. Roper prior to his termination? 7 8 MS. PETERSON: Objection. Lacks foundation. THE WITNESS: As I stated before, I was not

9 aware. 10 BY MR. FRIEDMAN: 11 Q. And you were unaware that Mr. Mellon had

12 accused Fernando daRosa of getting a false 13 documentation? 14 MS. PETERSON: Objection. Assumes facts not

15 in evidence. Lacks foundation. 16 THE WITNESS: I was not aware of the

17 discussions you've eluded to, if they occurred or not. 18 BY MR. FRIEDMAN: 19 Q. And that includes any discussion about

20 accusations that Mr. daRosa had backdated or gotten 21 false documentation? 22 23 A. That's correct. Q. And you were unaware that plaintiff had called

24 Mr. Mellon in mid-March again to ask why his 25 termination happened while he was out on medical leave?

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115 1 MS. PETERSON: Objection. Assumes facts not

2 in evidence. Lacks foundation. 3 THE WITNESS: I was unaware that that

4 discussion occurred. 5 BT MR. FRIEDMAN: 6 Q. Were you aware that Mr. daRosa had filed a

7 claim for disability in March of 2006? 8 MS. PETERSON: Objection. Assumes facts not

9 in evidence. Lacks foundation. 10 THE WITNESS: No.

11 BY MR. FRIEDMAN: 12 Q. Were you aware that he filed a claim with the

13 EEOC in April of 2006? 14 MS. PETERSON: Objection. Assumes facts not

15 in evidence. Lacks foundation. 16 THE WITNESS: No.

17 BY MR. FRIEDMAN: 18 Q. Were you aware that Mr. daRosa had filed a

19 claim for unemployment insurance stating that his 20 supervisor had fired him while his doctor had him out 21 on medical leave and that that claim was made in May of 22 2006? 23 24 A. No. Q. Were you aware of Mr. daRosa making a phone

25 call in June of 2006 to Kaiser requesting that his job

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116 1 be given back to him? 2 MS. PETERSON: Objection. Assumes facts not

3 in evidence. Lacks foundation. 4 THE WITNESS: No.

5 BY MR. FRIEDMAN: 6 Q. There is a -- some records indicating that a

7 search of the files were made -- was made by Gail Kato 8 in September of 2006. Were you aware of anything about 9 Ms. Kato getting involved in reviewing Mr. daRosa's 10 personnel files in September? 11 12 A. No. Q. After looking at Exhibit 5, these e-mails, do

13 you recall whether you did anything in response to any 14 communications that were provided to you with respect 15 to Mr. daRosa, in particular this communication? 16 17 A. No. Q. You don't recall reviewing it or doing

18 anything about it? 19 20 21 A. I don't recall getting it or having it. Q. Or doing anything about it? A. Or doing anything about it. I couldn't do

22 anything about it if I didn't receive it. 23 MR. FRIEDMAN: I may be close to finishing up

24 for today. Can we take a two minute break? 25 MS. PETERSON: Sure.

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117 1 2 (Break taken.) MR. FRIEDMAN: Back on the record.

3 BY MR. FRIEDMAN: 4 Q. Mr. Ayers, if you look at Exhibit 5 which is

5 the e-mail string? 6 7 A. Uh-huh. Q. And if you look at the message from Gail Kato

8 to Frank Mellon on 7/25, which is at bottom of the 9 second page, and it states here that, the third 10 sentence -- yeah, third sentence, "You should give him 11 your opinion as an HR person, but you would not be 12 making the decision regarding his so-called evidence"? 13 MS. PETERSON: I'm just going to object that

14 you misread that. You said "should" instead of "you 15 could". 16 MR. FRIEDMAN: I do want to read it correctly,

17 so let me rephrase that and restate it. 18 BY MR. FRIEDMAN: 19 Q. In the third sentence it says, "You could give

20 him your opinion as an HR person, but you could give 21 him the decision regarding his so-called evidence. 22 That needs to be discussed with Ken Ayers since Margie 23 Roper is no longer with us. And of course you would be 24 giving her opinion and recommendation to Ken as well." 25 Do you see what I was pointing to and reading?

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118 1 2 3 4 A. Yes. Q. Do you recall reading that before? A. No. Q. Do you recall any discussion with either

5 Mr. Mellon or Ms. Kato about "so-called evidence" in 6 connection with Mr. daRosa? 7 8 A. No. Q. Do you believe that Mr. Mellon ever did

9 discuss this with you and you just don't remember it? 10 A. I believe it could have happened. I don't

11 remember it happening. 12 Q. Do you believe that if you were asked to rule

13 upon whether or not Mr. Fernando was -- or Mr. daRosa 14 was entitled to his job back and you did make a 15 decision about that, that you would remember it today? 16 17 A. Absolutely. Q. So given that you don't remember the

18 discussion or making that decision, do you believe that 19 you didn't? 20 MS. PETERSON: Object that it misstates his

21 prior testimony. It's also vague and ambiguous and 22 compound. 23 MR. FRIEDMAN: I can tell by the expression

24 that perhaps the question was unartfully worded. 25 BY MR. FRIEDMAN:

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119 1 Q. Given what you do remember and what you don't

2 remember and what you probably would have remembered 3 had things occurred, do you believe that you were not 4 the person who made a decision about whether or not 5 Fernando was re-hirable? 6 7 A. At this particular point in time, yes. Q. Could you state what the yes refers to, just

8 so that I'm sure of my answer. 9 A. This memo is dated 7/25/06, so around that

10 period of time I did not make a decision one way or the 11 other on rehiring him or not that I can recall. And I 12 do believe as I stated earlier, if I had been asked for 13 that and had made a decision, I would have recalled it. 14 Q. And you would have documented it too, somehow?

15 In e-mails or in your files about actions taken? 16 17 A. Most likely, yes. Q. I've asked you a lot of questions today about

18 your discussions with Ms. Roper and your knowledge of 19 Mr. daRosa and your knowledge about his termination. 20 Are there any areas or issues involving Mr. daRosa and 21 his termination that we haven't discussed today that 22 you feel -- that you think are important? 23 MS. PETERSON: I'm going to object and

24 instruct the witness not to answer that question. You 25 can ask him specific questions, but you can't ask an

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122 1 STATE OF CALIFORNIA 2 ) ) )

3 COUNTY OF ALAMEDA 4 5 6

I, KIMBERLY R. JENSEN, do hereby certify: That KENNETH U. AYERS, in the foregoing

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

11 said time and place and was taken down in shorthand by 12 me, a Certified Shorthand Reporter of the State of 13 California, and was thereafter transcribed into 14 typewriting; 15 And that the foregoing transcript constitutes

16 a full, true, and correct report of said deposition and 17 of the proceedings that took place. 18 IN WITNESS WHEREOF, I have hereunder

19 subscribed my hand this 3rd day of September 2008. 20 21 22 23 24 25 KIMBERLY R. JENSEN, RPR, CSR No. 12552 State of California

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