Opinion
2:22-cv-02352
01-02-2024
BRENDA WILLMORE, Plaintiff, v. SAVVAS LEARNING COMPANY, LLC, Defendant.
For the Plaintiff: MR. PATRICK G. REAVEY REAVEY LAW, LLC For the Defendant: MR. ALAN L. RUPE MR. A. ALEXANDER DeMASI LEWIS BRISBOIS BISGAARD & SMITH, LLP Videographer: MR. TRAVIS CULP LEGAL VIDEO PRODUCTIONS
For the Plaintiff: MR. PATRICK G. REAVEY REAVEY LAW, LLC
For the Defendant: MR. ALAN L. RUPE MR. A. ALEXANDER DeMASI LEWIS BRISBOIS BISGAARD & SMITH, LLP
Videographer: MR. TRAVIS CULP LEGAL VIDEO PRODUCTIONS
VIDEO-RECORDED VIDEOCONFERENCE DEPOSITION OF DEBI F. DEBIAK, a witness, taken on behalf of the Plaintiff, pursuant to Notice, before the Honorable Angel D. Mitchell, on December 21, 2023, reported by
Susan J. Muckenthaler, Certified Verbatim Reporter, Certified in Kansas and Missouri.
STIPULATIONS
It was stipulated and agreed by and between counsel that the deposition officer can administer a binding oath to the witness by videoconference.
TABLE OF CONTENTS
EXAMINATION
Questions By Mr. Reavey
EXHIBITS
119 - "Equal Employment Opportunity and Affirmative Action" policy - 20
121 - Correspondence, ending with 4/27/2021 email from Lippe to Lesser - 28
126 - "Performance Improvement Guidelines" policy - 7
127 - "Workplace Conduct" policy - 16
CERTIFICATE OF REPORTER - 88
ERRATA SHEET - 89
SIGNATURE PAGE - 90
Reporter's Note: Electronic exhibits provided by counsel were made OCR searchable (PDF), downsampled to 600 dpi, digitally labeled if not previously labeled, flattened, archived as original exhibits, and provided electronically to all ordering counsel. Processing electronic exhibits can change the file size, resolution, and metadata of files originally provided.
(ph) indicates a phonetic spelling.
[sic] indicates the text is as stated.
Quoted text is as stated by the speaker.
THE VIDEOGRAPHER: We are on the record.
The time now is 1:30 p.m. Today is Thursday, December 21st, 2023. This is the deposition of Debi Debiak in the United States District Court for the District of Kansas in a case captioned Brenda Willmore, Plaintiff, versus Savvas Learning Company, LLC, Defendant, Case No. 2:22-cv-02352.
Would Counsel please identify themselves for the record and state their agreement to the remote administration of the oath.
MR. REAVEY: Patrick Reavey on behalf of Plaintiff Brenda Willmore, and I agree to the remote oath.
MR. RUPE: Alan Rupe and Alex DeMasi for Savvas, and we agree to the remote.
THE VIDEOGRAPHER: And would the court reporter please administer the oath.
DEBI F. DEBIAK, a witness, being first duly sworn, testified under oath as follows:
EXAMINATION
BY MR. REAVEY:
Q. Good afternoon, Ms. Debiak. As you know, I'm Patrick Reavey. I represent Brenda Willmore in a case against Savvas.
First question - where do you reside? I believe you just answered that earlier but ...
A. I reside in Montclair, New Jersey.
Q. Okay. Do you work out of your home?
A. I work out of my home and out of the
Paramus, New Jersey, office.
Q. Okay. And are you still employed by Savvas?
A. I am.
Q. And what is your title?
A. Employment and compliance counsel.
Q. And the compliance counsel is - do you agree that part of your role at Savvas is to ensure that employees and managers at Savvas are complying with company policies and rules?
A. Can you repeat that? Is it my job, or is it ...
Q. What -- how would you define the part of your title - compliance? What are you ensuring is being complied with?
A. The compliance part of my position is working on the employee code of conduct with the general counsel that is reviewed and revised every year. In addition, there is a very specific compliant aspect of my job dealing with sales
employees, marketing employees who go to various school districts or entertain or meet with teachers. Each state has very different rules on how much can be spent as far as gifts and ethics. So that is another compliance portion of my job.
Q. And as part of that compliance role you have, assisting or ensuring that managers or supervisors are complying with the rules that the company has as part of its employee handbook.
A. So that's more the manager's job. My job is to write - to work with HR to write the policies, to write the procedures to ensure that training is being given to the employees.
Q. Are you always involved any time an employee is being fired?
A. Not always.
Q. What would differentiate which employees you would be involved in, which ones you wouldn't?
A. That would be up to HR to determine whether or not they wanted to meet with me to get my legal guidance on a termination or a discipline.
Q. We'll look at specific records, but do you agree that part of your function and activities in relationship to Brenda Willmore was you -- being part of determining whether the company's policies
were complied with?
A. I'm not sure what policies you're referring to that would be complied with relating to her termination.
Q. Well, let's take a look -- if you can pull up Exhibit 126 ...
A. Okay. Hold on. Give me -- I'm not very good with Zoom. So it's the second one. I'm sorry. Did you say 126?
Q. Correct.
A. Okay.
Q. Do you have that pulled up?
A. Yes.
Q. All right. You -- you're familiar with this policy; correct?
A. I have not read it in a long time.
Q. Do you agree the title of it is
"Performance Improvement Guidelines" -
A. Right.
Q. -- "Date Issued: January 2020"; correct?
A. Right.
Q. In looking through this policy, do you agree that there are performance improvement guidelines that are set out as part of this policy for when employees are viewed as not performing as
expected?
A. Yes. There are -- something seems strange with this policy. There seems to be some letters missing --
Q. Yeah.
A. But ...
Q. That's how it was produced to me.
A. Was it? Okay.
Q. So in -- do you agree throughout this policy the term "manager" is referred to?
A. Yes.
Q. So, for example, "initial warning" -- it indicates the manager discusses the performance problem with the employee; correct?
A. Correct.
Q. And then if we turn the page, again, at the top of the page with regard to performance improvement plans, it again references "The plan or warning should be written by the employee's manager"?
A. Correct.
Q. And Item 3 -- you agree the title is "Termination"; correct?
A. Yes.
Q. Okay. And in that section, it indicates
"Requires consultation between the manager and the human resources business partner before any action will be taken." Did I read that -
A. Yeah.
Q. -- correctly?
A. You did.
Q. And you agree the terminology of "manager"
in this policy in -- with respect to Brenda Willmore - that would be referring to Mica Lesser, her boss; correct?
A. Yes.
Q. All right. You agree, in the policy - there's nothing in the policy indicating that someone other than Mica Lesser or the manager makes termination decisions?
A. Yes. Well, it requires consultation.
Q. Well, what do you mean by that?
A. This says that before termination the manager needs to discuss with HR.
Q. Correct. My quest- - and you understand Mica Lesser is the manager, and then James Lippe occupies the position of senior vice president of sales; correct?
A. Yes.
Q. All right. And so you agree the policy
doesn't contain anything about James Lippe is the person who meet - needs to make the decision to terminate someone?
A. I don't know if it says that in here. You're asking me if the manager needs to consult with their manager before terminating an employee?
Q. No. I'm asking -- the -- part of the policy, when it speaks of termination -- it speaks of "Requires consultation between the manager and the human resources business partner." No one else; correct?
A. Yes. It says you need to consult with the human resource business partner.
Q. And with respect to Brenda Willmore, that would be Sheri Jolcover; correct?
A. At the time, yes.
Q. All right. Is it your understanding, factually speaking, that Savvas, in the case of Brenda Willmore, is indicating that James Lippe is the person who decided to fire Brenda Willmore?
A. I don't believe that to be the case.
Q. You believe it -- it was Mica Lesser?
A. Mica Lesser with consultation with James Lippe.
Q. Okay. So who made the decision to fire
Brenda Willmore?
MR. RUPE: Objection.
A. They both did.
Q. (By Mr. Reavey) All right. Are you familiar with testimony in this case indicating that Mica Lesser or -- or -- I'm sorry -- that James Lippe is the only person who has the authority to fire Brenda Willmore?
A. Can you repeat that. I'm -- I'm having trouble because the document is still in front of me, and I don't know how to get out of it.
Q. Oh -
A. Oh, wait.
Q. -- hey -
A. I'm sorry. I found it.
Q. Okay. Great.
A. I found you.
MR. REAVEY: Reporter, do you mind reading back the question?
THE REPORTER: One minute.
(The following question was read by the reporter:
QUESTION: "Are you familiar with testimony in this case indicating that Mica Lesser or" -- "or" -- "I'm sorry" -- "that James Lippe is
the only person who had the authority to fire Brenda Willmore?")
A. No. I'm not familiar with that testimony.
Q. (By Mr. Reavey) So if you can, please pull up -- before we move from that -- so is it your testimony that you don't play a role in ensuring that -- or giving guidance on this policy titled "Performance Improvement Guidelines"?
MR. RUPE: Objection. Compound.
A. Right. It's - it's a guideline that should be used for managers when thinking about disciplining employees. It's not a policy or a requirement that they follow the guidelines.
Q. (By Mr. Reavey) Okay. My question is is it your testimony that you play no role in advising employees or managers such that they are in compliance with company policies, particularly the one we're talking about right now - performance improvement guidelines?
A. I don't play a role in performance improvement guidelines. I do play a role in providing legal advice to managers who want to discipline or terminate employees.
Q. And my question to you is -- is part of that role that you just mentioned -- is part of that
you giving advice to managers? Not whether something is legal or not but advice as to whether they are in compliance with company policy?
MR. RUPE: Objection. Compound.
A. Well, I'm not sure what you mean by "company policy." Like, all company policy? A specific company policy? My job is to provide legal advice to determine whether or not the termination is something that may be questioned, may lead to a lawsuit. It's to probe, ask questions so that the manager is comfortable with the decision that they've made. And -- and, of course, in the hopes of avoiding any type of litigation.
Q. Are you aware of Savvas's testimony, through Sheri Jolcover, that you would give advice regarding whether someone should be put on a performance improvement plan or whether someone should be disciplined?
A. No. I wouldn't give advice on whether someone should be disciplined, but I would ask questions. Is this something that a performance improvement plan would turn their performance around? Is this something that a performance improvement plan would not turn their -- their behavior around?
Q. And in you serving in that role, it's true, isn't it, you are asking those questions because you understand that the general practice at Savvas is that employees who are not performing adequately -- that they are subject to this performance improvement guideline that we've been looking at?
A. It's not the gen- -
MR. RUPE: Objection. Compound.
A. It's not the general practice to provide a performance improvement plan.
Q. (By Mr. Reavey) Okay. I'm just simply asking -- and we'll move on. But, Ms. Debiak, is it your testimony that you give no advice to managers or HR people at the company regarding whether or not someone is complying with company policies or practices?
A. I don't -- and I don't understand your question. I -- maybe an example would help. But they're not complying with company policy? They might -- may have violated company policy?
Q. Well, let me just give you an example. Maybe this will help. If you have a manager or an employee come to you and say, "Look, I just" -- "I want to fire this employee, and I don't have
anything" -- "I haven't given them a initial warning; I haven't given them a action plan; I haven't given them a performance improvement plan. Is it within company policy for me to fire this person," you agree you would -- you would give feedback to that employee on that question; correct?
A. I would -- I would give legal advice on -that they're at-will employees, they're not subject to any union agreement, and you don't need to follow any progressive discipline policy.
Q. Okay. But we're talking about the - so I guess we're back to where I was a few minutes ago. You -- it doesn't sound like you're prepared to testify that you serve no role in making sure company policy is complied with?
A. Well, I do serve a role. I review the policies; I update the policies. I ensure that employees receive the training that's appropriate and required by law. I - I work with HR and provide them legal advice, legal guidance, and legal training. And that all goes and funnels into making sure that the company policies are followed by all involved at the company.
Q. But you understand company policies are not the law; correct?
A. Right.
Q. And, in fact, the policies we've been looking at, at the end, they, in fact, say that - that this is not -- not a contract between the employee; correct?
A. Correct.
Q. All right. And so what I'm trying to get at is we're - I'm just focusing on company policies, not whether a termination is legal or not. But it's true, isn't it, that you serve a role in assisting the company in making sure its employees -- whether that's a manager, a supervisor, or a line worker -- that they comply with the rules and policies that the company has distributed to them?
A. Yes, I do serve a role in my capacity as employment counsel.
Q. Okay. So is it your testimony that any activities that you undertake, even if they are solely limited to company policy - that you - you view that as being legal advice or you serving in the capacity of a legal advisor?
A. Yes.
MR. RUPE: Objection. Compound.
Q. (By Mr. Reavey) So if you would, turn to
Exhibit 127. You see this is another Savvas -
A. One --
Q. -- policy?
A. -- second, please. It took a second to load.
Q. Okay. Sorry.
A. Yes.
Q. All right. And this policy -- different than the performance guidelines, this policy is titled "Workplace Conduct," issued January 2020; correct?
A. No.
Q. Okay. And sorry I didn't ask at the beginning. When did you start working for Savvas?
A. In August of 2019.
Q. Okay. And where did you work prior to Savvas?
A. I was a consultant at Con Edison in New York and a consultant at the Hertz Corporation. But prior to Savvas, I was an in-house attorney at the Hertz Corporation.
Q. Okay. So the other positions you mentioned -- were you an HR consultant?
A. No. I was a legal consultant for Hertz, and I was in the office of diversity and inclusion
at Con Edison.
Q. So back to Exhibit 127. Are you familiar with this policy, "Workplace Conduct"?
A. I have seen this policy. It's been quite some time. I did not draft this policy.
Q. But you agree in the -- the first paragraph of this policy, it indicates towards the bottom of that paragraph, "The Company is not required to engage in progressive disciplinary measures when addressing employee misconduct." Did I read that correctly?
A. You did.
Q. And towards the bottom of the page, there's several things that are listed as being things that are examples of misconduct that may result in immediate discharge; correct?
A. That's right.
Q. All right. And if you turn to the second page of this exhibit, Item 10 at the top of the page lists out "Insubordination, including refusal or failure to follow managerial instructions, unless carrying out the instruction would be unsafe or violate the law."
A. That's correct.
Q. Did I read that correctly?
A. You did.
Q. All right. Okay. And you were familiar with that policy, I take it, at Savvas that if someone engages in insubordination, there is no need for progressive discipline, that they can be immediately fired?
A. Yes.
Q. Okay. And you were aware of that prior to you being involved with Brenda Willmore; correct?
A. Was I aware of this policy prior to being involved with Brenda Willmore? I don't think so.
Q. Yeah. No. I'm talking about - you were aware that when it comes to insubordination, that is something the company views as someone can be immediately fired for that without following any progressive discipline?
A. Yes.
Q. All right. And Item 11, appearing just below insubordination -- 11 says "Misrepresentation or falsification of records, reports, or company documents." Did I read that correctly?
A. Yes.
Q. Okay. And, again, prior to you dealing or being involved with Brenda Willmore, you were aware that someone, namely, an employee engaging in
misrepresentation or falsification of records - that would result in immediate termination?
A. It could result in immediate termination.
Q. Okay. So no progressive discipline required; correct?
A. Correct.
Q. Now, let's go back to -- if you'll pull up Exhibit 119 ...
A. Yes.
Q. Okay. You agree this policy is titled "Equal Employment Opportunity and Affirmative Action"; correct?
A. Correct.
Q. Issue date January 2020?
A. Yes.
Q. All right. And if we turn to page 2, you agree that one of the bullet points, as to what comes within this policy, states "Ensure that all personnel actions relating to compensation, benefits, transfers, terminations, et cetera, are administered in a nondiscriminatory manner"; correct?
A. Correct.
Q. And you agree, in the middle of the page, this policy states that you are the affirmative
action officer at Savvas; correct?
A. Yes.
Q. All right. And how long have you had that position?
A. Since I was hired.
Q. And what is your understanding as to what you do as the company's affirmative action officer?
A. Well, one of my roles is to work with an outside vendor to file our EEO-1 and affirm- --EEO-1 statements and our affirmative action plans to work with them to gather the information to analyze it and to assist them in filing that with the federal government.
In addition to that, it's my responsibility to ensure that every other year all of our employees conduct appropriate training on sexual harassment and related areas.
Q. And this policy, you agree, also states that -- that you, as the affirmative action officer do -- among other things, establish and maintain an internal audit and reporting system to allow for effective measurement of the company's personnel procedures and programs?
A. Yes.
Q. Agree?
All right.
A. Yes.
Q. All right. And so what internal audits have you established and maintained at Savvas?
A. Annually, we review the documentation or the numbers on veterans, disabled, male and female hires.
Q. Do you agree that your activities as the affirmative action officer at Savvas - that, in that capacity, you're not serving in the role of a lawyer?
A. Well, I am because I'm part of the legal department.
Q. Well, I understand but -- but I'm talking about your activities. For example, what's stated here -- an internal audit, a reporting system, ensuring terminations are administered in a nondiscriminatory manner. All those activities are not you serving in a legal capacity; correct?
A. Well, it is. I don't - it is as legal. That's why I'm here.
Q. So it's your opinion that any and all activities that you perform as the company's affirmative action officer -- those would all fall into the basket of being attorney -- meaning being
privileged things that you're doing as an attorney?
MR. RUPE: Objection. Compound.
A. In my capacity as in-house attorney, yes. I work with a third-party vendor to gather so that we can file our affirmative action plans.
Q. (By Mr. Reavey) So is it your understanding that anything you do -- any documents you produce or audits you perform -- that all of that would be attorney-client privilege or attorney work product?
A. Well, no, not the information that I'm providing to the outside vendor. Those are the facts regarding the number of employees we have, whether or not they're veterans or not, whether or not they have identified as disabled, and the number of employees who are male and female.
Q. How about what we read earlier: Ensuring all personnel actions, including terminations, are administered in a nondiscriminatory manner? Do you believe that anything you do in -- in that function -- that that would all be privileged information and work product?
A. I'm not sure what you mean by "all." But, yes, if -- if HR or a business leader is conferring with me on an issue and they're seeking my legal
advice, yes. If they're reaching out to me to discuss something else that is not related to, say, a protected category, discipline, then no. If it's just to --
Q. So would you -
A. -- to organize something or, you know, "Debi, can you come and" -- "come speak to our group about overtime law?" That, obviously, would not be.
Q. So is it you are - is it your understanding that if someone who is in a protected class is terminated, then that makes your activities in reviewing that termination privileged?
A. No. Anytime I'm reviewing a termination -- I don't approve terminations. I am just brought in to review the termination with the manager to ensure that we are complying with the law and that the manager is fully aware of any potential issues. I bring more of an objective lens to that situation.
Q. Okay. But regarding your role as affirmative action officer, you understand that part of that role is you investigating as to whether something could be discriminatory or could be improper; true?
A. Yes.
Q. Okay. And in that role, you gather information from people that you believe are important to you getting to the bottom of whether you need to do something as the affirmative action officer?
A. Yes.
Q. So you don't simply sit back and task employees to -- you know, "Bring me what you think is important. And then once I have that information, I will give my legal advice as to you should do X or Y or you cannot do this"; true?
A. I don't understand your question.
Q. I guess my question -- just confirming that you see your role as a affirmative action officer for Savvas as you engage in investigative work; correct?
A. I do do some investigative work, yes.
Q. And you don't regard all of that investigation work that you do as affirmative action officer as being privileged and attorney work product?
A. It depends on what it is. Yes.
Q. Well, what -
A. If I'm just gathering information about, you know, what's the percentage of employees who are
female to male, that's obviously not privileged.
Q. So what would make something privileged - A. If we --
Q. -- compared to not privileged?
A. Sure. If we had a imbalance in that and we were working on trying to improve that, that may be privileged.
Q. So have you ever done any audits to determine - prior to being involved with Brenda Willmore, did you - since you've been at the company, did you ever do any analysis to determine, for example, what the ratio was between male and female?
A. Yeah. I would -- I would do that for the affirmative action plans and the EEO-1 filings --
Q. Okay.
A. -- so that I could report up that number.
Q. Okay. So where do those documents reside? Are they in your office or someone else's office?
A. Well -- "office" - it's not really an office, but we have our EEO-1 reports that are filed with the government.
Q. So other than filing things with the government, have you done anything to determine if things need to be done, for example, to encourage
older applicants or encourage more female applicants or encourage more African American applicants?
A. Well, I -- I can share -
MR. RUPE: Hang on. Hang on.
Counsel, I'm going to object to that question. You're getting really close to asking privileged information. And I would object at this point on the basis of attorney-client communication.
MR. REAVEY: Okay.
Q. (By Mr. Reavey) Let me just clarify, Ms. Debiak. I'm simply asking have you undertaken any efforts of - other than filing with the federal government -- but figuring out, for example, how many female versus male applicants are there; and out of that pool, how many males were hired as compared to females? Have you done any of that work?
A. I've not had to because the company is approx- -- over 60 percent female, and about 75 percent of our employees are over the age of 40.
Q. Okay. Well, how about, for example, African American employees? Have you done anything in connection with that?
A. I have not had to as well.
Q. So what - how do you - what do you view
your role as affirmative action officer to - to be doing on behalf of Savvas?
A. Like I said earlier, gathering the information so that we can do our affirmative action plan and our EEO-1 filings. And if an issue arises where there needs to be focus, then conferring and counseling with talent acquisition.
Q. All right. If you would, pull up Exhibit 121, please. And I'm going to try to quickly go through these pages. I'll let you know the -- they're all - I put handwritten numbers at the -- page numbers at the bottom. So I may have you jump around a little bit. But if you would, just pay attention to the number -- the handwritten number at the bottom of the page.
A. Not the exhibit tab? Just the number you --
Q. Correct.
A. -- wrote?
Okay.
Q. Yeah. So -- well, the exhibit is 121 here. You see that -
A. Correct.
Q. -- lab- -- but we're looking at page 1 of Exhibit 121; correct?
A. Yes.
Q. All right. And you see here, there's an -- there's an email exchange between Mica Lesser and James Lippe on April 26 and 27; correct?
A. Yes.
Q. All right. And there's a link to Salesforce records. Do you see that?
A. I do see the link.
Q. Okay. When I took Savvas's representative's deposition, there was testimony given that you gave direction that Brenda Willmore's Salesforce records should be audited. And my question to you is do you dispute that?
A. I don't recall saying that her Salesforce should be audited. My understanding is that her Salesforce records were already reviewed by James Lippe and Mica Lesser.
Q. Okay. So it's your testimony that you yourself never undertook any auditing, investigative work in connection with the Brenda Willmore Salesforce records?
A. What time period are you talking about? After the lawsuit was filed or before the lawsuit was filed?
Q. Before. And -- and, actually, I'm
talking -- well, do you see -- page 1 of Exhibit 121 is Dated: the top April 27, 2021; correct?
A. Yes.
Q. All right. And so we'll start there with the start date. And my question to you is after April 20 -- on April 27, 2021, or anytime within the -- the following months, did you ever undertake any auditing or investigative activities with regard to Brenda Willmore's Salesforce records?
A. I wouldn't say "auditing." I reviewed them in order to prepare the position statement.
Q. Okay. But that was after you knew of litigation; correct?
A. No. That would have been before litigation, after the EEOC charge was filed.
Q. Okay. Well -- so is that the first time you looked at any of the Salesforce records connected with Brenda Willmore?
A. I believe I may have looked at the -- a copy of the Salesforce record during the time of her termination.
Q. Okay. And where did you get that Salesforce record? Did you look at it in Salesforce database or ...
A. No. I don't have access to Salesforce.
Q. Was it on paper that you looked at?
A. It was probably an -- in an email sent to me.
Q. Do you know who sent you that email?
A. No.
Q. You just generally remember -- you believe you saw a Salesforce record in connection with Brenda Willmore; correct?
A. Right.
Q. All right. So when you saw that, factually speaking, did you make any observations about it?
A. I don't know what observations you're talking about.
Q. Like, did you reach any factual conclusions from looking at the Salesforce record as to whether or not Brenda Willmore had done something wrong or -- or hadn't?
A. Well, that would be based on review of the Salesforce record and conversation with either Mica Lesser or James Lippe.
Q. And do you recall when you had those conversations with Mica Lesser or James Lippe?
A. It would have been in early May of 2021.
Q. And so did you reach any factual
conclusions from -- after speaking with James Lippe and/or Mica Lesser regarding Brenda Willmore's Salesforce records?
A. Yes.
Q. Okay. And what -- what was that?
A. That they believed that she had falsified Salesforce by putting in entries that she was speaking to employees at the Derby School District when, in fact, she was not.
Q. Okay. So looking at page 1 of Exhibit 121, this email exchange, you - you see here where Mica Lesser tells James Lippe, "I think this should be enough. Look at the message below, and here are her logged meetings." Did I read that correctly?
A. What page are you on?
Q. Page 1.
A. Oh, I need to scroll down a little further. I do see that.
Q. Okay. Have you seen this document before? A. I don't think I have.
Q. Where it -- where Mica Lesser says, "I think this should be enough," you agree he was speaking of terminating Brenda Willmore?
MR. RUPE: Object to the form of the
question. Speculation.
A. I don't recall seeing the -- the top of that page all the way down to where it says "Forwarded message," I saw after that. So I'm not familiar with the top part. I am familiar with -where it says "Forwarded message" from Allie Tatrow. But the top part, I don't believe I have seen.
Q. (By Mr. Reavey) Do you agree that the message from Allie Tatrow - you know her to be the representative for Derby School Districts; correct?
A. Yeah. It says here she was district instructional coordinator.
Q. And you see the message that Mica pasted into his forwarded email to James Lippe -- Allie Tatrow tells Mica, "There were no phone calls after this visit"; correct?
A. (Reading document.) Yes.
Q. Okay. And - and this was something -you say you saw this part of the email; correct?
A. Yes.
Q. All right. And then you agree going up the page where Mica Lesser mentions, "I think this should be enough" -- "should be enough. Look at the message below, and here are her logged meetings." Did I read that correctly?
A. Yes.
Q. Okay. And you agree Mica Lesser mentions "meetings" whereas Allie Tatrow mentions "phone calls"; correct?
A. Let me read it. "I think this should be enough. And here are her logged meetings" and "There were no phone calls after this visit." Yes, that's what it says.
Q. Okay. You - and do you understand, from being involved in this case, that the - the entry in Salesforce that is at issue is listed as a virtual meeting; correct?
A. I'm not sure. I don't have the Salesforce document in front of me, but it would make sense because this was during COVID.
Q. So take a minute, still in Exhibit -21 -go to page -- I'm sorry -- 121 -- go to page 13.
A. Okay.
Q. And just for context, you agree - this email is from Sheri Jolcover to you dated May 3, 2021; correct?
A. Yes. Yes, it is.
Q. So -- and -- and Sheri Jolcover is forwarding to you a request to terminate that Sheri Jolcover received from Mica Lesser; correct?
A. Yes. I don't see the re- -- I don't see the request to terminate there.
Q. Okay. We'll get there. So -
A. Okay.
Q. So then turn back to page 8 of Exhibit 121.
A. Yes.
Q. You agree page 8 is this recommendation for dismissal that Mica Lesser sent to Sheri Jolcover, which Sheri then forwarded to you; correct?
A. I don't know if she forwarded me the email that said, "Let me know what you think." But this, I -- this, yes, I am confirming that Mica Lesser sent this to Sheri.
Q. And, actually, if you turn to page 11 of Exhibit 121, you agree now we see what appears to be a Word document with the subject "Recommend -"Recommendation for Dismissal - Brenda Willmore"; correct?
A. Yes.
Q. All right. And you received this document; correct?
A. No. This one seems to be redacted with changes, and I don't believe I ever saw this one.
Q. Well, do you recall -- okay. Turn to page 14 briefly, middle of the page. You see an email from Sheri Jolcover to Mica saying, "I reviewed and made a few minor changes. I've now shared this with Debi Debiak. The next step will be Q&A with Debi, and I will advise as to when." Did I read that correctly?
A. Yes.
Q. Does this refresh your recollection that the recommendation for dismissal that you received from Sheri Jolcover -- she had made some edits to that; correct?
A. Yes.
Q. Okay.
A. That must be the one where she made the edits.
Q. All right. Okay. And you agree in this document prepared by Mica Lesser that, ultimately, was forwarded to you after Sherry's edits - you agree he lists out four separate items that he believes justifies Brenda Willmore being fired; correct?
A. Can you point me to the -- the document that were --
Q. Page 11.
A. -- sent to me.
Q. Page 11 through 12.
THE REPORTER: Excuse me. You guys need to stop talking over each other.
MR. REAVEY: Okay. Sorry.
Q. (By Mr. Reavey) Looking at page 11 and 12 of Exhibit 121.
A. Okay. This page 11 and 12 is not the one that I received.
Q. Well, are you talking about the - where it shows what changes were made?
A. Yeah. So I don't know if those - if that was -- if those changes were accepted and became the final request to terminate.
Q. Well, purp- -- for purposes of the deposition, you can assume that they were be- -Sheri Jolcover gave testimony that, yes, these are the edits that she made and this red line -- or where it shows the changes - that - those were the changes she made. Do you understand that?
A. Okay.
Q. All right. So, regardless, though, looking at the document, we see four numbered items going down the left side of the page; correct?
A. Yes.
Q. All right. And let's just briefly go through each item. Item 1 talks about "Brenda has had a number of issues working with specialists on her team." Do you agree that's how that sentence starts?
A. That's what it says.
Q. All right. And you agree that -- well, let me back up for just a minute. I assume that when you received this recommendation for term- -or for dismissal from Sheri Jolcover, you read it?
A. Yes.
Q. Okay. And in reading it, I take it you were aware that -- regarding the subject matter of Item 1, you were aware that Brenda Willmore had not been subject to any performance guidelines or performance improvement as to the item listed in Item 1?
A. At the time I read it, I did not. I - I did not know who Brenda Willmore was.
Q. Okay. And then the second item -- you agree that has to do with sales goals -- meeting sales goals; correct?
A. Correct.
Q. Okay. And Item 3 talked about the Blue Valley School District?
A. Yes.
Q. All right. And do you see there where it says, "In 20-" - Mica says, "In 2019 Ms. Willmore was asked to be removed from the Blue Valley School District." You agree that should state "in 2018"?
A. I don't know if that was 2018 or 2019. I'd have to look at another document to confirm that.
Q. And then if we move on to - well, let me back up. So if I'm correct that - and it's undisputed in the case it was August 2018 - this reference by Mica to this - Brenda Willmore's removal from the Blue Valley School District -- we would be talking about three years after Mica says she was removed from that account; correct?
A. Can you ask that again.
Q. If I'm correct that the - the appropriate date of when Mica Lesser decided that he would be the point person for Blue Valley, particularly dealing with Jennifer Luzenske - if that occurred in August of 2018, this writing that Mica Lesser made on April -- or I'm sorry -- May 2nd that he sent to Sheri Jolcover, which was then provided to you -- Item 3 would be talking about an event that had occurred three years prior or almost three years
prior?
A. Are you just asking me if 2018 to 2021 is three years? Yes.
Q. Well, when you read this, assuming you did, and saw that this was sort of, like, old news, at least two years, did you have any conclusions in your mind that, well, that's -- that's not something we really can act on? Did you have any thoughts like that?
A. No.
Q. Then Item 4 on page 12 - this is talking about Derby School District; correct?
A. Yes.
Q. Okay. And this is pertaining to discussions that Mica Lesser and James Lippe had with the Derby School District on April 20, 2021; correct?
A. Yes.
Q. Okay. And, Ms. Debiak, do you have any -regardless of when you learned it, but you understand and acknowledge that these items -Items 1 through 4 as to Brenda Willmore at -through the lens of Mica Lesser not performing properly, Brenda Willmore had no performance improvement counselings, initial warnings,
discipline?
A. I do know that she did not have a -- if one of your questions was a performance improvement plan.
Q. Okay.
A. I don't know if there were any verbal warnings or verbal discussions between Brenda Willmore and Mica Lesser.
Q. Okay. Well, I'm talking about - you understand that, generally speaking, performance improvement documents or discipline, as referenced by the policy we looked at earlier -- those would be placed in one's personnel file; correct?
A. Yes.
Q. Okay. And you're not aware of anything like that that is in Brenda Willmore's personnel file; correct?
A. I'm not -- I'm not aware of any.
Q. Then Item 4 on page 12 - you agree, in writing this recommendation for dismissal, Mica Lesser writes, "Finally, it was shared from Allie Tatrow, the district's instructional coordinator, that Brenda had no communication with Brenda since March 3rd, 2021. However, if you look at Brenda's logged meetings in Salesforce.com, she noted meeting
virtually with her on April 12th, 2021. This is a very clear violation of Savvas's code of conduct policy." Did I read that correctly?
A. You did.
Q. Okay. And you agree, at least when Mica Lesser is speaking to Sheri Jolcover, he indicates that Brenda's logged meetings in Salesforce noted she met virtually on April 12th, 2021, with Derby; correct?
A. That's what it says.
Q. All right. You remember earlier when we looked -- well, disregard that. Now, if you would, turn to page 16.
A. 16. I'm there.
Q. Okay. And -- and, actually, this was an email forwarded to you by Mica Lesser on May 4, 2021; correct?
A. Yes.
Q. All right. And - and what he forwarded to you was the message we saw earlier that he had sent to James Lippe from Allie Tatrow where Allie said, "She did a drop-in visit on March 3rd since she was in the area just to introduce herself and touch base, about 15 minutes. There were no phone calls after this visit." Did I read that correctly?
A. Yes.
Q. Okay. And you agree this message from Allie -- she speaks of phone calls, but she doesn't say anything about meetings; correct?
A. Yes.
Q. Okay. And we were squared away on the -the -- this -- as you know from part of this case, this alleged fabrication pertaining to Brenda Willmore supposedly putting in Salesforce that she had a virtual meeting on April 12, 2021; correct?
A. Yes.
Q. All right. And Mica's message to you - when he forwarded this message from Allie, he indicates "FYI"; correct?
A. Yes.
Q. And then take a quick look at page 18.
You agree this is part of the email communication that Mica Lesser forwarded to you with the "FYI" of communications he had with Allie Tatrow; correct?
A. On page 18?
Q. Yeah. And if you need to look at the pages prior, you can see all these emails. This is one email string that was forwarded to you by Mica Lesser.
A. I do recall seeing this.
Q. Okay. And do you recall seeing page 18 of this exhibit where Allie Tatrow told Mica Lesser - Item 3, quote, "Brenda did communicate with us between March 8th and now, just very intermittently," period, closed quotes. Did I read that correctly?
A. You did.
Q. Okay. And if you look at page 17, you see Allie Tatrow is writing this on April 26th, 2021, to Mica Lesser; correct?
A. Yes.
Q. Okay. And you agree what you just read, despite what we looked at earlier where -- well, page 12 -- where Mica Lesser includes in his recommendation for dismissal "Brenda had no communication with Brenda" -- you understand that was -- there's a typo there. It should say "Allie had no communication with Brenda." Is that how you read it?
A. What page are you on again?
Q. 12.
A. 12. I see it. Yes, he said that "Brenda had no communication with Brenda since March 3rd."
Q. Right. But what he was referencing was Allie Tatrow had no communication with Brenda?
A. They show it as -- I believe, yeah, that's what he was saying.
Q. Okay. And -- well, the - page 18 that we just looked at, you agree, the email from Allie Tatrow to Mica doesn't say that, does it? In fact, it says the opposite. It says that Brenda did communicate with Derby School District -
A. It says -
Q. -- from March -
A. -- what it says. Yes.
Q. -- from -- from March 8 up to April 26th; correct?
A. Yes, it says what it says.
Q. All right. You agree -- and -- and I take it when you -- I think you already testified. When you received these emails, you read through them; correct?
A. Yes.
Q. All right. Did you - when you saw Allie Tatrow saying the opposite of what Mica Lesser was saying that -- did that cause you any concern?
MR. RUPE: Object to the form of the question.
Q. (By Mr. Reavey) You have to still go ahead and answer the question --
A. I'm sorry. What was --
Q. -- even though -
A. -- the question?
Q. -- there's an -- an objection.
The question was when you saw this back on -- back when you received it on May 3rd, 2021, where Mica Lesser included in his request for dismissal a statement about there being no communication between Brenda and Allie and then seeing where Allie said the opposite - did that cause you concern?
A. No. Because she said that - she's still complaining about her communication.
Q. So now, if you would, turn to page 13. And do you agree this is Sheri Jolcover writing to you on May 3rd, 2021, the subject of which is the attached "Recommendation for Dismissal" by Mica; correct?
A. Yes.
Q. Okay. And you agree Sheri Jolcover told you, in reading the request for dismissal, she did not believe it was enough for her to approve; correct?
A. That's what she wrote, yes.
Q. And do you agree with the testimony of
Sheri Jolcover that you and her generally agree with when an - when a termination can be approved, when a termination cannot?
A. Are you saying that she testified that she and I usually agree on when a termination is appropriate or not?
Q. Yes.
A. I can't recall any time we were discussing an employee discipline where we - I can't recall where maybe we had a disagreement over that.
Q. And then in -- in emailing you, Sheri says, "If we do Q&A with Mica and James, I think we'll be okay"; correct?
A. Yeah, she does say that.
Q. And did you understand her reference to "Q&A" -- what she was referencing was a potential legal claim arising out of the termination?
MR. RUPE: Object to the form of the quest- -
A. No. No, I didn't - I didn't anticipate that.
Q. (By Mr. Reavey) What did you think she was referencing by "Q&A"?
A. As I said before, sometimes I'm asked to join a discussion on employee termination and to
provide legal advice in the form of probing questions to make sure that the managers are comfortable with the decision that they made in order to minimize any risk.
Q. Okay. So do you recall -- with reference to the HR person working on this request of dismissal where she gave you her opinion -- she didn't believe it was enough to approve - do you recall if you agreed with her or didn't agree with her?
A. I don't recall Sheri ever saying that she didn't think there was enough to approve.
Q. But you see it on this email we're looking at; correct?
A. That she didn't approve -- right. She says, "I believe it is not enough to approve. However, if we do a Q&A with Mica and James, I think we will be okay." I don't understand why she - she wrote that, but we did then schedule a meeting.
Q. Do you have any reason to dispute her testimony about she wanted to put the brakes on -and she mentioned performance improvement. Do you recall having any discussions with her on those topics?
A. I don't remember having any conversations
about performance improvement.
Q. All right. So then if you turn to the next page, page 14, we see there's a message from Sheri Jolcover to Mica Lesser and James Lippe with the subject, "Recommendation for Dismissal Brenda Willmore"; correct?
A. Uh-huh.
Q. Is that a "Yes"?
A. Yes. I'm sorry.
Q. Okay. And Sheri writes to Mica, "Please be prepared to discuss the following with legal." And then there's four bullet points - questions; correct?
A. Right.
Q. Okay. And the -- the first bullet point is "If you question Brenda on the customer complaint and on her Salesforce entries." Did I read that correctly?
A. Yes.
Q. Okay. And you agree the customer complaint referenced here is the customer complaint from Derby?
A. Yes.
Q. And you -- at some point, I take it, you learned that, in fact, Brenda had not been talked to
about the customer complaint by Derby? Or -
A. No.
Q. -- let me back up a minute. Let me back up a minute. With regard to Salesforce entries -this reference to "If Brenda was questioned about her Salesforce entries" -- you agree that the answer to that is no, she was not talked to and asked questions about the supposed fabricated Salesforce entry?
A. No. My understanding was that she had been questioned.
Q. Okay. Do you understand that Brenda Willmore said she, in fact, had not?
A. No. I don't know if she said that or not.
Q. Are you familiar with Mica Lesser's testimony where he said he did not talk to her about the Salesforce entries until -
A. I'm not -- I'm not fam- --
Q. -- when he was - when he - until when he was firing -
THE REPORTER: One at a time.
THE WITNESS: My apologies.
A. No, I'm not familiar with Mica's testimony.
Q. (By Mr. Reavey) Do you have any
documents, that you're aware of, that would show that Brenda Willmore was spoken to about this alleged discrepancy between her indicating she had a meeting on April 12th with Allie Tatrow and Mica Lesser saying there had been no communication between Brenda and Allie?
A. I don't know anything about an April 12th meeting.
Q. Okay. I'm ask- - I'm just asking you do you -- are you aware of any documents that would memorialize Brenda Willmore being talked to about this alleged fabrication and her being allowed to tell her side of things?
A. A document on this? No, I'm not aware of a document on this.
Q. Okay. And then the second bullet point that Sheri is indicating that Mica should be prepared to talk with Debi Debiak about - it states "What her performance review looked like last year." Did I read that correctly?
A. Yes.
Q. Okay. And at some point -- it's true, isn't it, that you learned that Brenda Willmore's performance review for both 2019 and 2020 were all satisfactory or exceed expectation marks?
A. I don't remember. I remember that the ratings were 3 or 4. I don't remember the description of those ratings.
Q. So you don't -- you don't know a 3 means satisfactory, 4 means exceeds?
A. That -- the -- the narrative has changed over the years. So I'm not sure if at the time -if those were the narratives.
Q. So the next bullet point says "The employee that will handle the account for Derby." That's listed here; correct?
A. Correct.
Q. All right. And at the time, did you get an answer to that question as to who would be replacing Brenda Willmore?
A. Yes. I think it was Mica Lesser.
Q. Okay. You - you understand Mica Lesser is significantly younger than Brenda Willmore and he's obviously a male; correct?
A. I don't know his age.
Q. You don't know his age?
A. No. I think he's over -- I should know his age, but I don't know if he's over 40 or under 40.
Q. Okay. You've met him in person, though?
A. No.
Q. But you've been on Zoom calls with him; correct?
A. Correct.
Q. And you're not testifying that you have no idea whether he was younger or older than Brenda Willmore; correct?
A. No. I think he was younger than Brenda Willmore.
Q. And then the last bullet point as to things that Debi Debiak wanted to speak with Mica and James Lippe - it states, "More detailed explanation of Derby's complaints." Did I read that correctly?
A. Yes.
And my last name is pronounced Debiak.
Q. Okay. I'm sorry. I hope I don't mess it up again. I'll try not to.
But what was it that you wanted to - what more detail did you want about Derby?
A. General details on what the complaints were, what the relationship was. Just that. Just more details.
Q. So part of this discussion that was had with Mica Lesser, Sheri Jolcover, James Lippe -- do
you remember when this discussion occurred among all of you?
A. I believe it was -- if this is dated May 3rd -- it was either May 3rd or May 4th.
Q. So do you -- as -- as part of that discussion, do you recall there being discussion among the group that, well, you know, for most of this stuff that Mica Lesser has listed out, there aren't any - there's no documentation of these being performance failures by Brenda Willmore?
A. I don't recall if we discussed whether there were any documentations on these issues other than the emails that came from Blue Valley and the Derby School Districts.
Q. Why was it that you wanted to talk about who would handle the account after Brenda Willmore was gone?
A. It was probably more to determine who would be replacing her.
Q. Okay. And why did you want to know what her performance review looked like for 2020?
A. To determine what her performance was -view. Those are standard to see. You know, did they have a poor review on there last year? Were they an excellent? Were they just an average? What
happened?
Q. Okay. And -- and in asking these questions or raising these topics for discussion, were you raising those because you were concerned that firing Brenda would result in a lawsuit?
A. There's always a concern that an employee who was terminated will file a lawsuit. So my job is to ask these types of probing questions in order to raise any concerns so that the manager is clear in their determination -- when Mica and James ultimately decide to terminate an employee. So, yes, it's always in the understanding of this is what I'm providing legal advice for -- to point out through a more objective lens, you know, what are the circumstances? I've never met Brenda Willmore before.
Q. But you did know she was in a protected class? Meaning she was 59 years old and she was female; correct?
A. That came up.
Q. Yeah. So as a result of this conversation -- well, let me back up. In this, what you believe is -- I think you said May 3rd or May 4th is when you recall having this discussion?
A. Yes.
Q. All right. Was there discussion about Brenda Willmore having engaged in insubordination or fabrication?
A. I don't recall the word "insubordination," but I do recall -- I believe it was at that time -in discussion about the Salesforce entries.
Q. Okay. Do you recall there being discussion among the group about, "Well, for these performance issues that she hasn't been disciplined or counseled about, we really can't fire her over that because that" -- "that would not comply with the company policy or practice of, 'Hey, if someone is not performing, you should engage in progress-'" -- "'progressive improvement'" -- or "'performance improvement guidelines'"?
A. Are you asking -
MR. RUPE: Objection. Compound. Compound. Complex.
A. Are you asking if I said that or if somebody else said that?
Q. (By Mr. Reavey) Just was it a topic of discussion among the group?
A. Okay. Can you go through the list of what would -- might have been a topic.
Q. Well -- sure. Do you recall who was in
this meeting besides yourself?
A. I recall Sheri Jolcover, Mica Lesser. And I'm not 100 percent sure if James Lippe was there.
Q. And was this a Google Hangout?
A. Yes.
Q. Okay. So it was a virtual meeting?
A. Yes.
Q. All right. So my question to you is do you recall it being a topic that looked for the performance-related issues, different than fraud or fabrication - company policy is that she should have been subject to performance improvement guidelines? Meaning she should have been counseled; she should have been put on a performance improvement plan; she should have been given -
A. No.
Q. -- warnings?
A. That -- that's not right. That's not what company policy is.
Q. Okay. Well, I'm talking -- did - did that topic come up? In -- in the discussion, did the topic come up, "Well, has she been counseled about any of these things"?
A. No, that did not come up. It was that she had received yet another customer -- not just a
customer complaint but a request by a second customer that they did not want to work with her.
Q. So coming out of this meeting that we've been talking about, did -- do you recall that, at that point, you were in agreement with Sheri Jolcover that there's -- there's really not enough here to allow Mica to go ahead and fire Brenda?
A. I don't believe that -
MR. RUPE: Object to the form of the question.
A. I don't believe that's what Sheri said at the time.
Q. (By Mr. Reavey) Well, we're talk- -remember in the email where she said when -- after she forwarded the request for dismissal, she told you, "I don't believe there's enough to approve." And all I'm asking is after this meeting -
A. Well, I don't know why -
Q. Just -
A. -- she said there is - why there wasn't enough to approve. My understanding is she just wanted you go through the facts in a little more detail with Mica and herself to get a better understanding. She was more familiar with Brenda. Like I said before, I had never met Brenda Willmore,
did not know anything about her. So we had that meeting. We discussed Mica's termination request.
Q. So did you - did you have the discussion about who would replace Brenda from the standpoint of, you know, "If it's a younger male, then, you know, we may" -- "we may need to put the brakes on this"?
A. No.
Q. Okay. Why did you have that as a discussion point?
A. I think it was more out of a concern, from reading the documentation, that Mica had shared that Derby School District had asked to have Brenda removed from the account, and this was following after Blue Valley had asked to have Brenda removed from the account. Mica Lesser is -- believe, at the time, his title was a regional vice president. He was in Colorado managing a large district. And I was aware that he was covering the Blue Valley and he might also have to cover the Derby. It was a little more complicated than in other states in that there was only one account manager in the state. So he didn't have the -- the option of transferring the account to another account manager.
Q. So your testimony would be, "Look. I
didn't discuss that from the standpoint of" - "you know, if she's being replaced by a younger male, that could be concerning from a legal standpoint"?
Your testimony is no, that -- that didn't even cross your mind?
A. Oh, I'm su- -
MR. RUPE: Object. Well -
THE WITNESS: Go ahead.
MR. REAVEY: Object to the question.
Counsel, that is clearly asking for attorney-client information. I would instruct her not to answer.
Q. (By Mr. Reavey) Well, didn't you just say that -- you gave the reason for why you had -wanted that discussed; correct?
A. Yes. It was -- I was concerned who was going to be handling the account.
Q. And that was the only concern you can recall having at the time; correct?
A. Yeah, I think so.
Q. Then if we turn to the next page, page 15 -
MR. RUPE: Counsel, we've been going for about an hour and a half -- an hour and 15 minutes. Do you want to take a break?
MR. REAVEY: Sure. That's fine.
MR. RUPE: Okay.
THE VIDEOGRAPHER: Stand by, please.
We're going off the record. The time now is 2:47 p.m.
(A recess was taken.)
THE VIDEOGRAPHER: We are back on the record. The time now is 2:56 p.m.
Q. (By Mr. Reavey) Okay. Ms. Debi- - did you say it was "Debi-ack" or "Debi-ock"?
A. "Debi-ack."
Q. "Debi-ack." Okay.
We're still on Exhibit 121. Turn to page 15. You agree this is an email sent from Mica to you on May 4, 2021? The forward is "Savvas Math Screener." Do you see that?
A. What -- which page?
Q. Page 15.
A. Okay. Yes. I'm on page 15.
Q. And you know that Claravon Mathews is a representative of Derby School District; correct?
A. Yes. It says she's "STEM instructional coordinator."
Q. So Mica forwarded an email he received from Claravon to you and Sheri, and Mica says, "This
happened after I told Brenda that she was getting removed from the account due to customer request"; correct?
A. Correct.
Q. All right. Nothing in the email that Mica sent to you indicates he told her "Don't reach out to Derby"; correct?
A. Well, I don't know what he said. Would - you know, getting removed from the account due to a customer request usually means don't reach -
Q. Okay.
A. -- out to the customer.
Q. Well, I'm just saying on the paper that Mica sent to you -
A. Yes.
Q. -- isn't anything indicating that he specifically told Brenda, "Don't reach out to Derby"; true?
A. There's nothing in here that says "I, Mica, told Brenda don't reach out to Derby."
Q. Then, in fact, if we turn to -- if you turn to page 24 of the same exhibit -- and this would be the next day, May 5, 2021 -- you agree you actually asked Mica that question; correct?
A. Right. I said, "Could you ask how she is
reaching out? Email? Telephone calls?"
Q. And then you go on to say, "And was she told to not contact?
A. Uh-huh. That's --
Q. Is that -
A. -- true.
Q. - a "Yes"?
Okay. And you wrote that to Mica Lesser, and you also copied James Lippe; correct?
A. That's correct.
Q. And why was it important for you to know how Brenda was reaching out - was it email? Was it telephone calls -- and whether she was told to not contact?
A. I was, at that time, concerned about how she was reaching out to a customer that had told Savvas that they no longer wanted to work with her. I was concerned that perhaps she was now harassing the customer and that there might be a concern regarding privacy or "Do not contact."
Q. And then -
A. But then I saw on the bottom that Mica had said -- and then I saw at the bottom of the email or somewhere -- it was on another email -- that she had reached out via email to Claravon but called her
"Mary" for some reason.
Q. So if you go to page 23, you agree this is the -- this is an email at the bottom from Mica to Brenda where -- and this is on May 5, 2021, and he states, "Brenda, wanted to remind you that Derby has asked for someone else to cover their account for the time being. So I have been helping them out since our conversation with them a few weeks back. Please hold off on contacting them at this time." Did I read that correctly?
A. You did read it correctly.
Q. Okay. And that was sent on May 5, 2021, at 3:22 p.m. Did you see that?
A. Yes. That's what it says.
Q. And then if you go back to page 24, this is, again, your email to Mica where you asked, "Was she told not to contact"; correct?
A. I'm sorry. What ex- - I lost the exhibit. Is this -
Q. Yeah. That -
A. -- Exhibit
Q. Yeah, 121. Page
A. Page what?
Q. -- page 23 -- 23 and
A. And what was your question?
Q. So do you agree that it was after you asked Mica, "Was she told to not contact?" -- it was then, after you said that, that he then wrote this email to Brenda about not reaching out to Derby?
A. Yes.
Q. And then -- then turn to page 25. Again, this is an email from you -- or from Mica to you, Sheri Jolcover, and James Lippe; correct?
A. Yes.
Q. And you agree that Mica, in this email, is responding to the questions that you had of him about "How is she reaching out?" and "Was she told not to contact?"; correct?
A. Yes.
Q. And this email that Mica sent to you -you agree that he sends that to you after -- after you sent him the email asking if she had been told not to contact and then after he sent the email to Brenda saying, you know, "Hold off on reaching out to Derby," then he sends you this email; correct?
A. I don't know about -- I'd have to look at the sequence. I don't know if he -- I see that it's May 5th at 3:22 p.m. that Mica says to Brenda, "I wanted to remind you that Derby has asked for someone else to cover their accounts." And then he
sends the email to me and Sheri at 4:34 p.m., but I see that this is an email from me.
And I'm on the East Coast, and he's on -he's -- I don't -- I think -- I'm not sure if he -he's Central time or a different time. He's in Colorado; I'm in New Jersey. Sheri is in -- usually in California, and James is usually in Chicago.
Q. And then turn to page 33 of Exhibit 121. And you agree this is an email from Mica Lesser to Brenda Willmore dated May 18, 2021, at 10:20 a.m.; correct?
A. Correct.
Q. And Mica starts his email out to Brenda, "As I have asked you twice, Derby has asked that you no longer work with them. And they reached out to me today saying there is a technology integration call you sent out. Please do not join this meeting at the request of the customer as well as me covering with you that you are not to work with them." Did I read that correctly?
A. Yes.
Q. Okay. And so Mica Lesser references him having asked Brenda twice not to reach out to Derby; correct?
A. That's what it says.
Q. And we know -- we looked at earlier his email to Brenda on May 5th. You understand that's the only -- that's - that would be the second request, the one in writing where he said, "Please read" -- "Please hold off on reaching out to Derby"; correct?
A. The one where he's -
MR. RUPE: Objection.
A. -- saying -
MR. RUPE: Objection. Argumentative.
A. Are you asking about the email we just looked at where he says, "I'm reminding you"?
Q. (By Mr. Reavey) Correct.
A. And are you asking if that's the email --
Q. We know -
A. -- or what he said? Because I don't know what he said to her. All I know is what the email says.
Q. And you haven't seen any notes or documents that would indicate that Mica Lesser verbally told Brenda Willmore not to reach out to Derby prior to his writing on May 5, 2021?
A. I do not recall any other documents, other than these two emails, where he has documented that he told her not to reach out to Derby.
Q. And you agree - and if you need to, reference page 23 - but the writing that Mica Lesser wrote to Brenda about, "Hey, hold off on contacting them," it -- reading the email, does not appear that Mica is indicating that "Look, you disobeyed me, and you're still contacting Derby." That's not the tenor of the email at all, is it?
MR. RUPE: Objection.
A. I -- that's -
MR. RUPE: Argumentative. And -argumentative. And calls for speculation.
A. Yeah. I don't know what his intention for his tenor -- tenor was.
Q. (By Mr. Reavey) So reading that email on page 23 -- other than him saying, "Wanted to remind you that Derby has asked for someone else," he doesn't say anything about, "Hey, I asked you before not to contact them," does he?
MR. RUPE: Same objections. Speculative. Argumentative.
A. It says here, "Please hold off on contacting them."
Q. (By Mr. Reavey) Right. But you agree the preceding sentence where he says, "Wanted to remind you that Derby has asked for someone else to cover
their account for the time being" -- that doesn't say anything about a directive to Brenda not to contact them. He's just referencing, "They asked for someone else"; correct?
MR. RUPE: Same -- same objections. Argumentative. Speculation.
Q. (By Mr. Reavey) Go ahead.
A. My understanding is when you're no longer covering an account, you are no longer to contact that account. I mean, there may be circumstances where you would need to contact them, but I don't see that spelled out here.
Q. So then, if you would -- so at the point -- are you able to say at the point that you wrote the email to Mica Lesser saying, "Has she been told not to contact" -- factually, you don't know if she had or not; true?
A. No, I don't know. I don't - I wasn't - like I said, I never met Brenda Willmore. I was not involved in any conversations with her.
Q. Go to page 27, please. You agree this is an email from Sheri Jolcover. The subject is "Speaking Points," and it's dated Monday, May 17, at 3:49 p.m.; correct?
A. Central time, yes.
Q. Okay. And that - there's an attachment that says "Brenda Speaking Points"; correct?
A. I don't -- oh, so the next page is the attachment?
Q. Yeah.
A. 28?
Q. Yeah.
A. Yes.
Q. Okay. And you agree Sheri's message to Mica is, "H, Mica, please see attached. Please edit in your own words and/or true-up. How is 11:00 Central tomorrow? Thank you. Sheri"? Did I read that correctly?
A. Yes.
Q. Okay. And, Ms. Debiak, so you recall the last communication we saw where you were communicating with Mica about Brenda reaching out to Derby and he was answering your questions - do you -- do you recall that was May 5, 2021? Correct?
A. Let me go back and look. Yes. 20- - May 5, 2021.
Q. Okay. And now we're talking of the date of May 17, 2021; correct?
A. Which page?
Q. 27, the email from Sheri to Mica.
A. Right. Now we're discussing May 17th, 2021.
Q. So during the time period of May 5, 2021, and May 17, 2021, are you aware of any communications that occurred between yourself with Mica, James Lippe, Sheri Jolcover pertaining to Brenda Willmore?
A. No. I was not involved, again.
Q. So this meeting that you had with James Lippe and -- or I think you said you're unsure of James Lippe - but with Mica, Sheri Jolcover, and yourself, do you recall there - at that point in time -- May 3rd or May 4th -- what -- had a decision been made to fire Brenda Willmore at that point?
A. Yes.
Q. Okay. And who made that decision?
A. It was Mica Lesser with James Lippe.
Q. Are you aware of any documents that the company has that would reflect that the decision to fire Brenda Willmore occurred back on May 3rd or 4th as a result of the meeting you had with the others?
MR. RUPE: Object to the form of the question. Mischaracterization.
A. Am I aware of any documentation saying "Today is the day that it was decided that Brenda
was terminated"? I think that goes back a few days earlier to when Mica made the request to terminate.
Q. (By Mr. Reavey) So I think you earlier indicated you had this meeting with the others on May 3rd or 4th; correct?
A. Yes.
Q. Okay. And is it your testimony that as -as part of that meeting, there was a decision made that Brenda Willmore would be fired?
A. Yes.
Q. And we know - we'll look at the records, but we know that Brenda Willmore was not fired until May 18th, 2021; correct?
A. Correct.
Q. Okay. Do you have any explanation for why weeks went by after, your testimony says, a decision was made to fire Brenda but then she wasn't fired until May 18th, 2021?
A. No. I wasn't involved after that.
Q. When I took Mica Lesser's deposition, he indicated the delay was because he was seeking approval for the termination. Do you -- are you aware of that testimony by him?
A. No.
Q. Okay. Who would he be seeking approval
from -
A. James -
Q. If he -
A. -- Lippe.
Q. Hold on. If he's the manager, per the policy, he doesn't need to seek James Lippe's approval, does he?
MR. RUPE: Objection. Argumentative.
A. There is no policy that says you do or do not have to seek your manager's approval.
Q. (By Mr. Reavey) So you agree that back when the decision was made - your testimony is that it was made back around May 3rd, May 4 -- Sheri Jolcover was part of those discussions; correct?
A. Yes.
Q. All right. So you -- you believe her testimony would be that, yeah, the decision to fire was made back on May 3rd, 4th, 2021; correct?
A. Was that her -
MR. RUPE: Objection. Calls for speculation.
A. I don't know what her -- her testimony was.
Q. Well, you -
A. All I can speak to is what I remember.
Q. Right. But given that she was -- as you indicate, she was part of this decision discussion. And your testimony is the decision was made back on May 3rd or 4th. Your expectation, your understanding, would be, like yourself, Sheri Jolcover would know that the decision to terminate was made back on May -- around May 3rd or 4th; correct?
MR. RUPE: Objection. Compound. And argumentative.
A. I don't know what Sheri would know.
Q. (By Mr. Reavey) Okay. But she was part of the decision? Meaning maybe she didn't decide, but she was part of this discussion that you're referencing in you testimony where it was decided that -- that Brenda Willmore would be fired -
A. And --
Q. -- true?
A. -- she would - well, yes, she was there. And then she would work with the manager to facilitate scheduling the termination.
Q. So back to page 27. You agree this is an email from Sheri to Mica about speaking points? We already talked about this; correct?
A. Yes.
Q. And she references the "11:00 Central tomorrow"; correct?
A. Yes.
Q. Did you understand that to be when Mica was going to deliver the news to Brenda Willmore that she was fired?
A. Did I understand it then? I'm not on this email.
Q. I'm just asking -- after the decision was made, which you say was back - beginning of May - did you then come to understand that the termination news was going to be delivered to Brenda Willmore on a particular point?
A. Well, yes, that she would eventually be terminated. I then stepped out of all those conversations. Like I said, just a few moments ago, Sheri, as the HR business partner, would then work with the manager to facilitate arranging the meeting and anything else related to the termination.
Q. Was it part of the discussion back on May 3rd or 4th when the decision was made to terminate that Brenda Willmore had fabricated or committed fraud in connection with Salesforce records?
A. I'm not comfortable with the word
"fabricated" or "fraud." It was a discussion that she had entered into Salesforce meetings or conversations with the Derby School District that Derby then said did not occur.
Q. Did you ever give directive that "Look, given this allegation, we need to terminate Brenda's access to customer accounts immediately" or "We need to wall her off on accounts"? Anything of that nature?
A. No.
Q. You understood that from beginning of May up -
A. That would not be my decision to necessarily make.
Q. Yeah. So you didn't have any legal concerns that "Look, we got someone that's been accused of fabrication, at least according to Mica Lesser and James Lippe. We need to do something about this to make sure that they don't have access to our customers"? You didn't have that concern?
A. I don't think you have an understanding -but -- and I will admit that I am not familiar with Salesforce. But my understanding that the Salesforce -- that Salesforce is an internal system that salespeople use to document, that it wasn't
something that translates outside of Savvas or affects customers directly.
Q. So, in any event, back on May 17th, 2021, Sheri provides these speaking points for Mica to fire Brenda the next day; correct?
A. Yes. She sent this email.
Q. All right. And you agree that these notes she made -- the first bullet point she has talks about Derby, that Brenda was not performing essential functions for Derby; correct?
A. Mr. Reavey, I - I never saw this before Brenda was terminated. So ...
Q. Okay. Well, you agree, on the piece of paper that you know Sheri Jolcover sent to Mica Lesser, it -- the first bullet point it brings up is Derby; correct?
A. Yes.
Q. And the second bullet point that's brought up is Derby; correct?
A. Yes.
Q. And then the third bullet point indicates "This is not the first time that you were asked to be removed from a school district/major account," and then there's a question mark that appears after that; correct?
A. That's what it says, yes.
Q. Did you ever have any discussion among the group of you that, you know, "Hey, since the Blue Valley thing was, you know, nearly three years old, we probably shouldn't bring that up as part of her firing"? Was that ever a discussion you had?
A. No.
Q. Okay. Do you know why the question mark was put there by Sheri Jolcover?
MR. RUPE: Objection. Calls for speculation.
A. No, I don't know why she put a question mark there.
MR. REAVEY: And, Judge, I don't know if you're still on -- I would -- I just object to the speaking objections by Mr. Rupe. I -- I don't believe "It calls for speculation" is proper.
YOUR HONOR: I'm still on, but I don't see any need for me to interject to resolve objections. So you should just make them for the record.
MR. REAVEY: Thank you.
Q. (By Mr. Reavey) So the fourth bullet point, you agree, Sheri Jolcover prepared for Mica states, "Despite" -- or I'm sorry. The -- yeah, the fourth says, "I specifically informed you of this
and clearly instructed you to not contact the customer/Derby"?
A. Oh, I apologize. Our lights are on a timer. I don't mean to not answer your question, but I'm going to get up and turn the lights back on.
Q. Sure.
A. I'm back.
Q. All right.
A. What was your question? I apologize.
Q. Page 28 of Exhibit 121 - you agree the bullet point that Sheri provided to Mica indicates, "I specifically informed you of this and clearly instructed you to not contact the customer Derby"; true?
A. Okay. That's what it says.
Q. All right. And then the next bullet point Sheri wrote for Mica, "Despite my directive, you called the customer." Did I read that correctly?
A. Yes, you did.
Q. And then the next bullet point says, "The customer called me following you contacting them." Did I read that correctly?
A. Yes.
Q. And the next bullet point -- "The customer was very upset after being informed by me that you
would no longer be their account manager and they would, in fact, work through me and the curriculum specialist." Did I read that correctly?
A. Yes.
Q. All right. And then this next bullet point provided by Sheri to Mica says, "Following the call from Derby, I again instructed you to not reach out to the customer." Did I read that correctly?
A. Yes.
Q. Okay. And then the next bullet point indicates, "Despite my second request to not contact anyone within Derby School District, you once again reached out"; correct?
A. You read it correctly, yes.
Q. And -- and you recall the second request -- that is consistent with Mica -- what he wrote to Brenda Willmore on May 18, 2021, where he said, "As I have asked you twice, Derby has asked" -- do you recall reading that email?
A. I don't know if that was the May 5th or May 18th.
Q. May 18th, page 33, if you want to look at it.
A. Yes. This is the -- on number -- page 33 is Mica saying to Brenda, "Brenda, as I have asked
you twice" -- "Derby has asked that you no longer work with them."
Q. And then his -- so his reference to "They reached out to me today" -- what he was saying is they reached out to him on May 18, 2021; correct?
A. What page are you on?
Q. 33.
A. Oh, I went back up to 28. On page 33 and -- "They reached out to me today saying there is a tech" -- yes.
Q. Okay.
A. He did - that's what it says on the May 18th email.
Q. He, again, references, "I asked you twice, and now they've" -- "they've reached out to me today saying you've reached out a third time"; correct?
A. Yes.
Q. So then turning back to 28, again, we're looking at the notes that Sheri provided for Mica to go over with her when he terminated Brenda Willmore. Again, I apologize if I didn't -- if we've already went through this. But the bullet point prepared for Mica says, "Despite my second request to not contact anyone within Derby School District, you once again reached out." Did I read that correctly?
A. Yes.
Q. Okay. So here, where Sheri Jolcover has prepared notes for Mica, again, she references a second request and then a third reach-out by Brenda Willmore; correct?
A. Well, I'm not sure if there was a third. Oh, "Despite my sec-" -- it says what it says -"Despite my second request to not contact anyone within the Derby School District, you once again reached out."
Q. So this is referencing that after Brenda Willmore had been told twice or made a - two requests by Mica to not contact Derby, despite that, she reached out again? That's what in the -
A. I did not write this; so I don't know.
Q. But that's what the words on the page say; correct?
A. Well, the words say what they say. I don't know what -
Q. So the -
A. -- you're asking.
Q. The next bullet point indicates, "Your behavior is insubordinate and clearly strained our relationship with the customer even further." Did I read that correctly?
A. Yes.
Q. And then the last bullet point says, "As a result, Savvas is terminating your employment for insubordination"; correct?
A. That's what it says, yes.
Q. And you agree nothing in these notes that Sheri provided for Mica Lesser say anything about any fabrication or fraud; true?
A. Let me read the next paragraph because I did not -- I have not looked at this. (Reviews document.) True. It does not say anything about fabrication or fraud.
Q. Okay. It's all -
YOUR HONOR: Counsel -
Q. (By Mr. Reavey) -- focused -
YOUR HONOR: Counsel -- Counsel, I'm -I'm sorry to interrupt, but I have another hearing at 3:30. So I need to jump off. It seems like you-all are moving along. Is there anything you need from me before I go? Mr. Rupe?
MR. RUPE: Well, Your Honor -- Your Honor, this is Alan.
YOUR HONOR: Yeah.
MR. RUPE: You had targeted this for about an hour and had concerns about it being
duplicative -
YOUR HONOR: Yes.
MR. RUPE: - in the questioning, and I think it clearly is. If -- if we have to sit here and continue to have witnesses confronted with an exhibit that they were not a party to and just read it with Mr. Reavey, after he's asked witnesses about this before, I feel like we're not really asking -
YOUR HONOR: So, Mr. Rupe, are you asking to terminate the deposition at this -
MR. RUPE: Yes.
YOUR HONOR: - point?
MR. RUPE: Yes.
YOUR HONOR: Okay. Mr. Reavey, any -I'll hear real briefly from you on that, but I'll let you know I'm inclined to.
MR. REAVEY: Judge, I've been at - this witness was involved in this chain of events that led to Brenda Willmore being fired. The exhibit that I'm asking her for -- or about was written by Sheri Jolcover, who was her person she was working with. It was written the night before the supposed May 18, 2021, reach-out to Derby. So what you have here is Sheri Jolcover providing to Mica Lesser on May 17th what would happen the next day.
So as you - as you - as you have heard, this witness was involved with this whole chain of events leading to Brenda Willmore being fired. And these questions are not duplicative. They are getting her knowledge, what she knows about this.
And the question would be why is Sheri Jolcover even talking about events that happened on May 18th or May 17th when the witness says the decision had already been made weeks before? So -
YOUR HONOR: Okay. I'm going to - again, I have to jump off, but I've list- - I've been on and listened to all of the questioning here and - and I'm going to grant Savvas -- Savvas's motion to terminate the deposition consistent with the opinion -- with my observations previously.
I do appreciate that Ms. Debiak had some involvement in the events in question. That's why I find it quite surprising that - Mr. Reavey, that you spent the bulk of the time here today asking her questions about far -- far-field questions about policies and other people's emails and all kinds of things like that. I think you could have easily -easily explored her personal involvement in answering to the questions that you would have had on that front.
You've had a full and fair opportunity to examine her. You knew what the time limits were. You chose to use them otherwise, and so I'm going to grant the defendant's motion to terminate the deposition.
So with that, is there anything -- with that -
MR. REAVEY: Yeah. I -
YOUR HONOR: - is there anything further Mr. -- is there anything further, Mr. Rupe?
MR. RUPE: Not from the - not from the defense.
YOUR HONOR: Okay.
MR. RUPE: No.
YOUR HONOR: Okay. Anything -- anything further, Mr. Reavey, before I have to drop off quickly?
MR. REAVEY: Yes. I - I object to your ruling. I think it's inappropriate, and I think you are impermissibly barring evidence.
The -- the rule is a deposition is seven hours, and you gave me one hour. And I think it's just completely inappropriate that you are even doing this. It's unheard of. Even defense counsel would tell you they've probably never taken a
one-hour deposition, much less a two-hour deposition.
So, again, I -- I object. I think it's inappropriate, and I don't really know why -- as I addressed in my objection to the last time you ruled -- I don't know what your issue is with me. But I -- I do believe it's adversely affecting my client and her right to discovery. So I just want that part of the record.
YOUR HONOR: Okay. Anything further, Mr. Reavey?
MR. RUPE: No. Thank you.
MR. REAVEY: Not at - not at this time.
YOUR HONOR: Okay. Thank you, every -thank you for -- everyone, for your time.
THE VIDEOGRAPHER: Stand by, please. Going off the record. The time now is 3:31 p.m. This concludes the deposition.