Claimant
Brian P. Carr
11301 NE 7^th St, Apt J5
Vancouver, WA 98684
503-545-8357

Employer
YESMAIL, Inc.
Bob XXXX
5711 S 86TH CIR
Omaha, NE 68127-4146
503-988-3405

9:28:49 Opening

9:28:49 8870249 Recording has started. ...
9:28:52 Ms. Smith Hello this is Betty Smith the administrative law judge. Mr. Carr are you there? ... Is there someone there from Yesmail?
9:29:05 [Larry] Yes, [Larry].
9:29:07 Ms. Smith Hello [Larry]. Could you tell me how to spell your name, your last name?
9:29:13 [Larry] Yes, T h o m p s o n.
9:29:21 Ms. Smith OK, Mr. Carr are you there?
9:29:23 Mr. Carr Yes.
9:29:24 Ms. Smith The is Betty Smith the administrative law judge and also on the line is Larry XXXX from Yesmail. Is anybody else on the line?
9:29:31 [Bob] Yes, this is Bob XXXX with InfoGroup, a parent company for Yesmail.
9:29:43 Ms. Smith ... OK, [Larry] are you going to be the representative at the hearing?
9:29:49 [Larry] Yes, I believe so
9:29:51 Ms. Smith Yes, that means you'll be the person who can ask Mr. Carr questions. Would that be you or [Bob]?
9:29:58 [Larry] [Bob] what is your (noise obscures remainder of response).
9:30:01 [Bob] I can ask him the questions.
9:30:03 Ms. Smith OK, so you will be the representative and possible witness and [Larry] you will be a witness. Is there anybody else on the line? ... OK, I am going to turn on my tape recorder and I am going to explain what is going to happen. If anybody gets disconnected, please call back in using the same phone number and access code that you used the first time. ...
9:30:32 Ms. Smith This is administrative law judge Betty Smith speaking. I have been assigned by the Office of Administrative Hearings and the state of Oregon to conduct the hearing in this matter. The Office of Administrative Hearings is independent of the employment department for the purposes of conducting hearings. I have on the line Mr. Brian Carr who is the claimant in this matter. Also on the line is Mr. Bob XXXX representing the employer and Mr. Larry XXXX a witness for the employer. It is December 19, 2008. The time is 9:30. The case involving these parties is U70249. The hearing is being conducted by telephone and it is being recorded. In this matter, the claimant, Mr. Carr, has requested a hearing because he is contesting a decision issued by the employment department on October 24th, 2008 concluding that he voluntarily left work without good cause. The issue for the hearing today as stated in the hearing notice is whether the claimant, Mr. Carr, shall be disqualified from the receipt of benefits because of a separation, discharge, suspension, or voluntary leaving from work. The claimant has the burden of proof in this matter. I will begin the hearing by swearing in Mr. Carr and asking him some questions and then giving [Bob] an opportunity to cross examine him. After that [Bob] and [Larry] may testify and after each of them speaks, Mr. Carr, you'll have the opportunity to ask questions and I will be asking everyone questions. ... Mr. Carr are you currently in the military?
9:32:15 Mr. Carr No
9:32:16 Ms. Smith Did you receive the hearing notice? The notice...
9:32:23 Mr. Carr Yes, for December 19th.
9:32:25 Ms. Smith Has your address changed since that time?
9:32:27 Mr. Carr No
9:32:28 Ms. Smith [Bob] did you receive the notice notice of the hearing?
9:32:32 [Bob] Yes I did.
9:32:34 Ms. Smith And has the business address changed since that time?
9:32:38 [Bob] No it has not.

9:32:40 Identification of Record Documents

9:32:40 Ms. Smith OK, for the record I have the following documents. Record document number one is the administrative decision issued on October 24th. Record document number two is the hearing request received from Mr. Carr on October 29th. Record document number three is the notice of hearing with a lengthy attachments explaining amongst other things your rights and the law that applies in this matter. Does anyone have any questions about the information in the hearing notice or anything else? Mr. Carr, any questions?
9:33:16 Mr. Carr I believe there was a subpoena issued and I mailed to the Administrative Hearings Office a copy of the results of the subpoenae.
9:33:26 Ms. Smith Yes I do have some exhibits from you and I will get to them in a minute. Thank you for mentioning those. Do you have any questions about the notice?
9:33:34 Mr. Carr No, I just wanted to make sure that you had those documents.
9:33:38 Ms. Smith Yes, I do. [Bob] do you have any questions about the notice?
9:33:42 [Bob] No I do not.

9:33:44 Identification of Exhibits

9:33:44 Ms. Smith As Mr. Carr stated correctly, he has provided a number of exhibits with copies to [Larry]. These are identified by him as follows: Exhibit 1 is the subpoena itself, Exhibit 2 is a letter from [Larry] to Mr. Carr dated December 9th, Exhibit 3 is the request for separation - signed by [Larry], Exhibit 4 is headed Performance Improvement Plan and ... let's see ... Performance Improvement Plan and Final Written Warning for Brian Carr prepared by John XXXX and then ... let's see, Exhibit 5 is the form headed Client Services Performance Review... actually, Mr. Carr, do you know who wrote the information at the end of this?
9:34:56 Mr. Carr At the end of the performance review?
9:34:58 Ms. Smith Yes.
9:34:59 Mr. Carr That is John XXXX's signature.... So that is John XXXX's hand writing.
9:35:08 Ms. Smith OK, well I will just tell you that I can not read much of what is hand written there so if it is important for me to know what it says ... wherever possible ... It is really just the first one, H D L ticket focus
9:35:29 Mr. Carr That is H A L I think.
9:35:32 Ms. Smith H A L ticket focus. Alright, that is number five. And then number six is a letter written by Mr. Carr about the separation and also number seven additional documentation. Mr. Carr did you submit these various leave request documents?
9:35:53 Mr. Carr (garbled response, apparently positive)
9:35:55 Ms. Smith OK, in addition I have these documents from Mr. Carr.
9:36:03 Mr. Carr I think they were included in the hearing packet as well, those particular PTO requests or leave requests.
9:36:12 Ms. Smith OK, you did send a letter explaining various matters about your subpoena and you listed them in your letter and so I assume you want the leave... Do you want the leave requests in the hearing record as an exhibit?
9:36:25 Mr. Carr Yes, they are... Yes, I want them considered as part of the record.
9:36:30 Ms. Smith OK, I have received them. These exhibits, one through seven from Mr. Carr. [Bob] do you have any objection to making them part of the record of the hearing?
9:36:40 [Bob] No objection at his time.

9:36:46 Testimony of Mr. Carr

9:36:46 Ms. Smith OK, exhibits one through seven are admitted. ... OK, let's being with you Mr. Carr, I need to ask you to testify under oath. So, would you please raise your right hand and answer this question. Do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth.
9:37:14 Mr. Carr I do.
9:37:15 Ms. Smith OK. Mr. Carr, according to the administrative decision, you worked for Yesmail from September 20, 2004 through October 2, 2008. Are those dates correct?
9:37:33 Mr. Carr More or less. There was a prior company, @once.com, which was bought by Yesmail. So there was a formal change of employment where I was let go by @once and hired by Yesmail, but Yesmail gave me credit for the work I had done for the prior company. So, ...
9:37:57 Ms. Smith So, was the last day you actually worked October 2, 2008?
9:37:59 Mr. Carr I actually did work on October 1st, but I was paid through October 2nd.
9:38:09 Ms. Smith OK. What was your job title?
9:38:14 Mr. Carr Database specialist early on and then later it was C S E which is Client Services Engineer.
9:38:24 Ms. Smith And that was you job title at the end of your job?
9:38:26 Mr. Carr Um hum.
9:38:27 Ms. Smith OK. Did you quit your job?
9:38:30 Mr. Carr No.
9:38:35 Ms. Smith OK. Is it your contention that you were fired?
9:38:40 Mr. Carr They asked me to sign an agreement, they asked me to agree to some things that I viewed as impossible and so I wouldn't sign those and so they asked for my badge and asked me to not work any further. So, I would say I was fired.
9:39:00 Ms. Smith OK. ... At this point I am just writing ... taking notes. Just one moment please. .... [Bob], do you think, .... do you agree that Mr. Carr was fired?
9:39:29 [Bob] No, I do not.

Discharge versus Voluntary Separation

9:39:31 Ms. Smith OK, then you will have a chance to testify later. I just wanted to ascertain whether there was a dispute for this purpose, and so I would like to call everyone's attention to an item on the hearing notice. I don't know if you have this with you, but it is under the laws and rules and this is rule 471-030-0038, number 2, and what the rules say is: 'The distinction between voluntary leaving and discharge is: if the employee could have continued to work for the same employer for an additional period of time the separation is a voluntary leaving of work. If the employee is willing to continue to work for the same employer for an additional period of time but is not allowed to do so by the employer the separation is a discharge. OK. Mr. Carr do you have any questions just about that information?
9:40:27 Mr. Carr No.
9:40:28 Ms. Smith OK, and having heard those definitions is it your contention that you were willing to continue working for the employer but you were not allowed to do so?
9:40:39 Mr. Carr Uh huh. Yes.
9:40:41 Ms. Smith OK. And [Bob], having heard those definitions is still your contention that Mr. Carr quit his job?
9:40:50 [Bob] Yes, that is correct.
9:40:52 Ms. Smith OK.... Well, I will just tell you then that if I determine that this was a discharge then in that case the employer has the burden of proof. If it was... If I determine that is was a voluntary quit then you, the claimant, Mr. Carr, will have the burden of proof.... So, I just want you to understand that is.... those are the standards that will apply. So, let's go ahead with your testimony, Mr. Carr.... Did you plan in advance to quit or was this something that happened at the last moment?
9:41:45 Mr. Carr I was surprised by being called in. I had a doctor's appointment that morning. I had used 'work from home' on Sunday to cover the hours and so I came in to work expecting to finish the day and come in to work the next day.
9:42:07 Ms. Smith OK, and then what happened to end your employment?

Final Meeting

9:42:10 Mr. Carr Toward the end of the day, John, John XXXX, who was my manager at the time, would you please come with me. I said, “Sure.” and so went to Larry XXXX's office and they had the 'Last Chance Agreement', I think it is exhibit three, in our thing, but that brought up, but that brought up a lot of the issues that John and I had discussed previously and that we had not been able to reach agreement on, and there if you, it is actually exhibit four, I think, ... 'The Final Written Warning for Brian Carr”, and there it lists two things, it says 'work from home' was out without approval and the other is productivity. Really, I think the underlying issue was productivity, that the criteria he had established was impossible, and I was being asked to sign a statement that I would abide by things which I didn't think were possible. So, I couldn't sign it as it wouldn't be true.... And so when I didn't sign it and said that I couldn't abide by these terms, that it was impossible, then they asked for my badge.
9:43:34 Ms. Smith OK. Which.... I assume you are talking about the expectations that you say are impossible?
9:43:50 Mr. Carr Uh huh.
9:43:51 Ms. Smith And was there any specific expectation that you thought was impossible

Productivity Requirements
Problems with Discovery

9:43:58 Mr. Carr Forty tasks per week was ... could not be done responsible to complete actually entailed pressing a single button and obviously I could press a single button forty times in a week but implicitly pressing that button said that I had resolved and fixed the problem and with the quality of the system that I was working with it just was not possible to fix and correct that many problems, and so I have a lot of discussions examples. I also have a concern I might raise at this point about the discovery process or the lack thereof, and raise a concern that in particular there are some examples that I would like to talk about of showing why it is not possible in this environment to fix forty problems within a week, or it was not possible, but in order to demonstrate it I woul like... needed access to records which I kept at the time because I kept good records of each problem that I worked on and what the root cause was and I left all the records with the company in compliance with their security policies and now I have no access to them. So, if I say I couldn't meet these things because of these problems it is just my word whereas there are records that I was not permitted access to in that I think prior to the subpoena being issued I be access to all the emails...
9:45:33 Ms. Smith Mr. Carr, I understand what your problem is here, but I want to ask you a question. Looking at your exhibit three, the employment department asked why you were no longer working and [Larry] answer was told he could not work from home so he quit.
9:45:49 Mr. Carr Uh huh.
9:45:50 Ms. Smith So, if that is the employer's statement about why you are no longer employed could you tell me was there any discussion about that at the last meeting with Mr. ....

No 'I Quit'

9:46:00 Mr. Carr Oh certainly. I never said the words 'I quit', I am quite certain of that. I said that we were at a stand still because they had imposed a new condition of employment, my understanding which is that I had to work forty hours a week... well actually there are some serious problems ... I guess I should go back.
9:46:25 Ms. Smith Before you go back, I want to know, at that last meeting did they tell you that you could not work from home?
9:46:33 Mr. Carr Yes.
9:46:34 Ms. Smith And what was your response?

Can Not Meet New Requirements

9:46:36 Mr. Carr That it would not be possible for me meet the forty hours a week requirement if I was not ever permitted to work from home. The other part of the context was that about three months ago, or four months prior to that, John had imposed, firmly imposed, the requirement of prior approval for paid time off such that essentially he never gave me any paid time off or leave of absence opportunities. He just said, 'No, you always have to be here', and so if my car broke down or if I had to go to a doctor's appointment as I had to that morning, what I did instead is used worked from home, you know it was during non-business hours which was outside their criteria and it was also in a different location, from my home. Most of the work that I was doing had been shifted to off-shore, was being by people in India, that the department had been like seven people, six of us were gone. I was the last one left, most of the work was being done in India, and to say that the work could not be done from home was not realistic. The other aspect is that John had....
9:47:46 Ms. Smith Well, Mr. Carr.... Mr. Carr did your employer say.... Did your employer... Do you believe your employer doesn't have a right to expect you to come to a work place every day?
9:48:04 Mr. Carr Yes, they do, within reason. That if a person has a doctor's appointment they should be given an opportunity to paid time off, leave of absence, or work another time. So, that is particular, I had no ability to take paid time off in any schedulable time. As a condition of employment I had to be there every day at 9AM or I was fired.... And I don't anyone could get to work every day at 9AM or they're fired. Sometimes people are sick, sometimes their car breaks down, sometimes they have to meet with the plumber to have something fixed.
9:48:52 Ms. Smith So you're employer didn't have... didn't allow employees to have any sick leave or stay home when they were sick or go to a doctor's appointment.
9:49:01 Mr. Carr Well, within the department we had worked on the old system, Jaguar, which had just been decommissioned. As it was being decommissioned....

Restrictions on PTO

9:49:08 Ms. Smith Just answer my question, yes or no. Did your employer allow to take time off if you were sick?
9:49:15 Mr. Carr In my case, not after the last three months. When they needed me I could take PTO on a reasonable basis and it was no problem
9:49:25 Ms. Smith What is PTO?
9:49:27 Mr. Carr PTO, Paid Time Off.
9:49:29 Ms. Smith OK.
9:49:30 Mr. Carr For three months I had never been allowed to take paid time off under any reasonable circumstances.
9:49:38 Ms. Smith OK, were you allowed to take unpaid time off if you needed to see a doctor?
9:49:42 Mr. Carr No. It was denied in every case.
9:49:46 Ms. Smith OK. So on the last day, one thing that happened was that you were told that you couldn't work at home, you never said you quit, but you said we're at a stand still. Is that correct?
9:49:57 Mr. Carr It sounded like it.... I could not meet their new conditions of employment. I could not sign that document.
9:50:07 Ms. Smith What else happened during that last meeting? What other conversations? What other subjects did you discuss other than they said that you couldn't work from home and you said that wasn't possible? What else happened in that conversation?

Tie Between Productivity and Work from Home

9:50:20 Mr. Carr There are two underlying issues. The real underlying issue was one of productivity. That John stated at one point that the reason that 'work from home' was being eliminated was not that my work could not be done from home and not that my 'work from home' was not adequate, but rather that it was a punishment for not meeting the productivity objectives.
9:50:45 Ms. Smith That was... What was the reason that 'work from home' was being eliminated or the 'paid time off'?
9:50:48 Mr. Carr Uh huh. The 'work from home' was being eliminated as a punishment...
9:50:55 Ms. Smith Tell me again what it was a punishment for.
9:50:57 Mr. Carr For not meeting the productivity objectives.
9:51:01 Ms. Smith OK....

Changes in Work from Home Policy
Department Attrition

9:51:03 Mr. Carr I guess another context is, this was familiar to me that the department would target one particular individual to get them fired in that the department had been seven people six of which were gone. It was just me, so I was the last person. But when the first person went, for example, Candi, they started to imply, 'Well we're gonna cut back on work from home for the department' and I went to the manager, Sanjay, 'Look I can't meet this, I've got to work evenings cause problems come up.' and he said 'Oh no problem, don't worry about you, it doesn't apply to you.' So, really they would target one individual for firing and then they would impose unreasonable work requirements until the individual was fired or quit. And so me being the last person I was the one who was being fired or quit, but at this point the system that we had been supported had been decommissioned, and so I was not needed. It could be done more cheaply in India. Another point is that all the executive bonuses were dependent on profitability of the different departments and if they could reduce costs by letting me go then their bonuses would increase. So it was to their advantage to let me go. And then another...
9:52:19 Ms. Smith So, ... you just said your basically your work was eliminated, the job you have done no existed, is that correct?
9:52:26 Mr. Carr The Jaguar system which I had supported, I was the last of the seven, was decommissioned on July. So, three or four months before.
9:52:36 Ms. Smith And this company had no other work for you to do?
9:52:39 Mr. Carr They claimed that I could work on the Enterprise system, the new system, and I was working on the Enterprise system, but it was clear to me that they weren't really trying to keep me, they were trying to fire me.
9:52:50 Ms. Smith What kind of work did you do? What kind of business is this?
9:52:53 Mr. Carr It sends out mass marketing email, so if you get an email from Nike or PetSmart there is a good chance that it was sent by us.
9:53:07 Ms. Smith OK, ... In the... Since July are you saying you had little or no work?

Additional Staff in India

9:53:17 Mr. Carr No it was the people in India. They had hired eight people in India, probably more now who were doing the same work at a lower cost.
9:53:24 Ms. Smith You explained that once the Jaguar system was decommissioned you were put to work on the Enterprise system. Is that correct?
9:53:30 Mr. Carr Uh huh. That is correct.
9:53:34 Ms. Smith And did they not have any work for you to do on the Enterprise system?
9:53:38 Mr. Carr They had work to do.
9:53:39 Ms. Smith And did you do that work?
9:53:41 Mr. Carr Yes.
9:53:43 Ms. Smith OK.... Did you.... Before this time had you ever gotten any warnings about your job perform?
9:53:55 Mr. Carr No that was the only warning.
9:54:03 Ms. Smith OK.... Did you.... Were you... Did you ever get any sort of disciplinary action or criticism?

History of Productivity

9:54:11 Mr. Carr We had had discussions about the forty tasks per week, and in those discussions I would note that it was not a reasonable requirement. It was not really possible. Yes, I could press the Resolve button forty times per week, but to do the underlying which was required to really resolve the problem as opposed to just push a button took more than an hour on average.
9:54:37 Ms. Smith OK. And when there were seven of you working on the Jaguar system did they also have the same forty task requirements?
9:54:52 Mr. Carr Yes. As an aside, when I first joined the company at that time John was not the manager, he was the technical lead, and he was advocating twenty per week and no one was meeting that, but there were four or five people, so that was the bar that everyone shot for, but nobody made it. After I joined, shortly thereafter I met the forty per week... I am sorry, met the twenty per week, which was four per day which was the standard at the time. And I am concerned cause also because there were numerous reviews other than the one review they showed, and in the prior review, which they did not return from the subpoena, it was glowing, that wonderful work, you know exceeding expectations, and, in truth, when I was working on the Jaguar system alone, everyone else had left, I was meeting the forty week, eight per day on the Jaguar system, but the Jaguar system is a different system and there were not other people making mistakes, and in particular, fixing other people's mistakes is time consuming. And so I was highly productive on the Jaguar system and could meet the forty week or eight per day on Jaguar, but on Enterprise it is a much more complete system. There were a dozen people introducing problems and doing projects, and none of them were given adequate time on their projects and so they would say they had finished it when they really hadn't tested it and then we were fixing incomplete projects. And if a person had spent twenty hours on a project and it doesn't work and now you say 'You fix it', it could easily take six hours to fix it, because they never finished it in the first place. And then you have one job which takes four hours, it makes it impossible, it throws a monkey wrench in your goal of getting eight per day, cause you can't do it. It is the quality of the work being done by other people and their time schedules which makes it impossible to get eight per day on the Enterprise system.
9:57:02 Ms. Smith Now... according to the.... I just want to... note that you said that you had had other performance reviews that were not included in the response to your subpoena?
9:57:20 Mr. Carr Uh huh.

Missing Performance Plans

9:57:21 Ms. Smith The response, exhibit 2, says they were providing your employee file which was forty pages. Have you submitted all forty pages here?
9:57:33 Mr. Carr No, but in my letter I will note that only performance review which they included in the forty pages was the one which I sent in, there were 28 pay roll adjustments, documents, which were not what I was really look for....
9:57:55 Ms. Smith Ok.
9:57:55 Mr. Carr and if I had access to my emails and archives that I kept which I had also asked previously I could demonstrate that there were other performance reviews which I have not seen, and in.... on those performance reviews there were much ... more clearly that I was performing very well.
9:58:17 Ms. Smith And so would you say... would it be correct to say that if the employer required that you complete forty tasks per week that you would not find that possible with your background and job skills.
9:58:34 Mr. Carr Uh huh.

Experience

Ms. Smith OK... And how many years have you been in this technical field that you are in now?
9:58:44 Mr. Carr In different variations, thirty five years.

Productivity, Signing Document

9:58:48 Ms. Smith OK... Did you see any alternative in the meeting with Mr. Funtake to... to... saying I can't do that.
9:59:06 Mr. Carr That is what I said, I can't do it. It just is not possible and to sign a document saying that is was possible when I didn't believe it was possible would be almost fraud.
9:59:22 Ms. Smith Did you suggest... did you discuss the fact that you felt that expectation was impossible and whether they would change it?
9:59:28 Mr. Carr John and I had had on going discussions about it, so for the last two or three months we would talk about QA, and if I might, I might talk about the sort of QA and the problems they had just so that we can go through one particular example.
9:59:48 Ms. Smith No, I don't need to have that. Were there other people doing the same work as you on the Enterprise system?
9:59:56 Mr. Carr Yes.
10:00:58 Ms. Smith And were they accomplishing forty tasks per week?
10:00:01 Mr. Carr There may have been one or two weeks when John got forty per week, but John was assigning the problems and, in particular, he would close out problems. He would look at it and say 'No, this is too big' or 'This is not us' and he would count them. So, as the keeper of the queue, the queue of work. And also he would assign problems to me and then take them away and then assign other ones to me, and being in control, it is not really a fair measure of can you actually resolve forty problems in a week.
10:00:38 Ms. Smith Well, I mean somebody else in your position. Was there anybody...
10:00:41 Mr. Carr No, just me.
10:00:43 Ms. Smith Nobody else in your position, or no one else could do forty?
10:00:48 Mr. Carr No one in my position could do forty. John could do forty but he was not in my position, he was the keeper of the queue and he could count them however he liked.
10:00:59 Ms. Smith OK, so how many other people were in your position?
10:01:02 Mr. Carr One and then two. At the end there were two.
10:01:07 Ms. Smith Neither of them could do forty?
10:01:09 Mr. Carr Uh huh.
10:01:10 Ms. Smith OK... Did you see any alternative to... to insisting that you be allowed to work at home at times?

Proposed Alternatives

10:01:21 Mr. Carr I volunteered several things.... The entire Portland office is about 85 people and everyone through the entire office except me was allowed to work from home and so working in any other department would be acceptable and so I offered to do any sort of work anywhere that would not have the imposition of you know 'had to be there everyday at 9 oclock no matter what' or your fired.
10:01:53 Ms. Smith So you it is your understanding that every... all the other 84 people were allowed to work at home except you.
10:02:00 Mr. Carr Uh huh.
10:01:01 Ms. Smith OK, and so when you offered to do a different job, what was the response?
10:02:05 Mr. Carr There were no positions available. For a couple or three months I had been trying to transfer to another department, cause I could see that there .... there was no resolution between John and I.
10:02:25 Ms. Smith OK. If they had insisted that you come to work every day, but reduced the expectation of forty tasks would you have been willing to stay?
10:02:41 Mr. Carr I was willing to stay. The point is that it wasn't realistic to say that I am fired if I am ever not there at 9AM, because the written policy is that you can only take time off if your sick, but to be sick means to have a statement from a doctor that you couldn't come to work or you had prior approval of paid time off, but sometimes my car breaks down and I can't get there at nine, and it was never a problem because I would work from home. Alright, the work could be done from anywhere and that is what everyone else did. I mean it was just the way we did business.
10:03:18 Ms. Smith Now, ... OK, so what did your employer expect you to do if your car broke down, take the bus to work?
10:03:24 Mr. Carr ... There were no alternatives given. It was held out, you have to have prior approval for paid time off. I was being held to that... and I was the only one of the eighty five people in Portland who was being held to 'No you can't take any paid time off or leave of absence unless you get prior two weeks in advance with your manager.'
10:03:48 Ms. Smith OK, so your saying that there was a policy require prior approval two weeks in advance?

Denial of PTO, Make Good

10:03:55 Mr. Carr Uh, no and John finally gave up on that because it made no sense. He told me that he was not going to give me any paid time off unless you apply two weeks in advance, so I applied three and four weeks and he still refused it, and then in order to keep me from losing, because I was in a 'use it or lose it' condition at 200 hours. ... When I first reached that 'use or lose it' he said you can't take any leave,... and you'll just have to ... you know I'll fix it later we have a larger staff. But I had seen the staff disappear, I'd seen all the other people get fired and I didn't believe that he was going to be able to 'fix it' later, because if your being fired... Oh and he also said he would not tell me he'd fix it in writing, he'd just say I would have to trust his word, but if I am fired and I have two weeks of lost vacation, how are they going to pay me based on his word which he would never say in writing. So, I simply applied, and I was applying to avoid the situation so that I would lose the paid time off, that is when he would routinely refuse every request, but at one point it got to the point that if he refused it then I would actually lose leave and potentially could have a law suit if they tried to fire me under those circumstances and so in that case he did grant me leave, but it was the next day. So he said, well do you want to take tomorrow off, and I said 'Sure'. So he signed off the next day. So it really meant that I could only take time off when he told me.
10:05:27 Ms. Smith OK, and your testimony is that although it was a written policy that you did have to have prior approval, you were the only person that you had to have prior approval. Is that correct?
10:05:41 Mr. Carr Uh huh.

Sought Other Positions

10:05:44 Ms. Smith OK.... You said for the past two or three months you had tried to find another job in the company, is that right?
10:05:59 Mr. Carr Uh huh. I had applied for a position that was available in the java development group and they chose to with a more senior person, a person with more experience, and maybe at the start of the year they might reconsider. So, that was one position that I was interested in.
10:06:18 Ms. Smith OK. Did you apply for any others.
10:06:20 Mr. Carr I didn't actively apply. No.
10:06:23 Ms. Smith OK... Were you looking to see if there were any others that would be appropriate... during that two or three months?
10:06:31 Mr. Carr Yes.
10:06:32 Ms. Smith OK.... Alright, is there anything else you would like to tell me about why you are no longer.... well.... why you are no longer working there?
10:06:43 Mr. Carr I think I have covered the key points.
10:06:48 Ms. Smith OK, thank you very much Mr. Carr. [Bob] would you like to ask Mr. Carr any questions?
10:06:56 [Bob] Yes, I would if I have a few minutes.
10:06:58 Ms. Smith Go ahead.

[Bob] Cross of Mr. Carr

10:06:59 [Bob] Thank you. Mr. Carr... did you, I just want to make sure... I am trying to keep my notes up to speed, unfortunately I am a bit of a slow writer. At the time of the termination of the employment relationship, how many people were in the department?
10:07:20 Mr. Carr Two or three.... Two or three depending on whether you count the department head.
10:07:25 [Bob] Yes, I was just thinking I should probably rephrase that and make that a more clear question. How many people were doing the same tasks as you?
10:07:34 Mr. Carr One, two, or three according to how you.... Well, also, doing the same task that as I was doing, maybe twenty. One, two or twenty depending on how you count them.
10:07:50 [Bob] Can you explain that for me? I don't understand.
10:07:53 Mr. Carr When you say doing the same tasks, well if you saying... well also it could be a hundred. HAL tasks were the things that I was doing and HAL tasks were completed by people in Production Support, they were completed by people in Technical Support, they were completed by people in... DBA's, by the different tasks were routed...
10:08:17 [Bob] Excuse me, [Bob] can you ask a more specific question?

Number of CSE's

10:08:23 [Bob] Sure, I'd... be glad to.... Mr. Carr... the... Is it true that only yourself and maybe one or two others doing a particularly unique type of work on the Enterprise system at that time?
10:08:39 Mr. Carr No, if there was a work overflow, if we couldn't do it, they were often assigned to other people in other departments.
10:08:51 [Bob] OK, ... Would you agree with the statement that your department was... short staffed?
10:08:58 Mr. Carr ... Yes.
10:09:02 [Bob] OK... Then would you also agree with the statement it would be difficult for the department to let you take PTO without prior approval when it is in a short staffed situation?
10:09:24 Mr. Carr (softly) '... it would be difficult ... for them ...' Yes, it would be difficult.
10:09:42 [Bob] OK.... then... and then when you ... when you discussed a few minutes ago that you were approaching the maximum limit for the paid time off or PTO that one... that an employee could accrue under the policy. Do you recall that discussion?
10:09:54 Mr. Carr Yes.
10:09:55 [Bob] OK, ... As that time... as that maximum number approached did you supervisor, [John] at all discuss saying that he understood that you may lose time... for PTO by... hitting that maximum but that he was willing to work with you when the work conditions allowed?
10:10:22 Mr. Carr ... He had... It was my understanding that he said that he would make it good, that he would get... give me the time that later, but he would not tell me that in writing.
10:10:32 [Bob] OK....

Lost PTO, Fraud

10:10:35 Mr. Carr And I had a concern with that because in particular, if I had made good, let's say I had accrued a couple of weeks of vacation because there was no end in sight for our short staffed situation, we had been short staffed for the last two years.... So, if I had two weeks of vacation and then he said 'OK, let's make good on it', and I took a week, I would be required to fill out a time sheet claiming that I had done work when I hadn't actually been working. So, we would each be committing fraud, to 'make good on it', to use vacation that I wasn't entitled to cause I had lost it, you know, over the months before. So, I wasn't willing to sign up to agree to commit fraud.
10:11:16 [Bob] OK.... Did I understand correctly that you ... said that you could not take PTO time for sick emergency... sick time or emergencies or various doctors or health appointments?
10:11:33 Mr. Carr That's correct. Doctor's I could because the company policy... for a doctor's appointment I could not. If I was sick enough that a doctor would sign a statement that I was unable to come to work then I could do unscheduled sick time using the PTO, but there were no other cases where John allowed it.

Business Hours

10:11:56 [Bob] OK... now... Typically what were you work hours that you were required to work?
10:12:09 Mr. Carr Nine to five.
10:11: [Bob] OK, ... and I understand, correct me if I am wrong, but do I understand correctly that you are saying that you could not at the office location in the office nine to five every day of the week?
10:12:28 Mr. Carr If it was a condition of employment saying that if I was ever there not at nine, unless I had prior approval, or I was sick enough that I could get a doctor's statement, then it was not my belief that there would not within a month be a day when it would be impossible. And if that were a condition of employment then I would be fired, and I didn't believe that I could meet that.
10:12:53 Ms. Smith And was that a condition of employment?
10:12:55 Mr. Carr As stated by John it was.
10:13:00 Ms. Smith OK.
10:13:03 Mr. Carr But it was only applied to me because everybody else had the work from home option, oh, if something came up, they would just work when they had to. With everyone else the focus was the job done, not on 'were you there at 9AM'.

Doctor's Statement for Unscheduled PTO

10:13:27 [Bob] OK. Do you know of any policy requiring a doctor's note for sick time or saying that this employee was actually sick?
10:13:38 Mr. Carr I believe that I had read it one time on line and that was one of the documents that I asked be provided for and I have not received it. So, I believe that I read it once but I don't have access to the records where I could demonstrate it.
10:13:54 [Bob] OK... now... I want to refer to... let me make sure that I have the right number here, I believe it is exhibit 6, that is the document that you wrote that was dated October 13, 2008. Is that correct? That's exhibit 6 is that right?
10:14:14 Mr. Carr ... I am flipping to it.... So is that the one dated November 27th? (garbled noise)
10:14:30 [Bob] This is a document that you wrote, it is signed by you on the bottom and the hand written date on the top is October 13, 2008. It is ... one two three four five....
10:14:38 Ms. Smith It is your letter. (garbled) document. It begins 'At the closing interview it was my conclusion'
10:14:48 Mr. Carr Uh huh.... OK, I haven't found my copy of that but I am familiar with it.

Combination of Restrictions

10:14:54 [Bob] OK, ... let me... let me... I'll make a... Maybe this will help, I'll quote out of the... referring to... in the second paragraph there is a quote two sentences here 'On October 1, 2008, the department manager, John XXXX, informed me that the department (now reduced from six people to just two, one newly added), was eliminating the ability to work from home though all other departments were retaining a flexible work hour policy. However as I single and need to on occasion adjust my hours for personal errands such as car repair and home maintenance (for example the cable guy) I informed him that I would be unable to meet the new restrictions on work hours and work location.'
10:15:43 Mr. Carr Uh huh.
10:15:44 [Bob] Do you recall writing that?
10:15:46 Mr. Carr Yes.
10:15:46 [Bob] OK... In there is there any discussion... about your not being able to take PTO for sick leave.
10:16:01 Mr. Carr No.
10:16:02 [Bob] OK... Is there... What I read in those two sentences is that you were concerned with having time during working hours to do personal type... things such as home repair or vehicle repair. Is that correct?
10:16:21 Mr. Carr My concern is that with the written policy and the actual policy of 'have to have prior approval' for any other circumstance where don't start work at 9, the combination of the two made it completely untenable.
10:16:35 [Bob] When you were allowed to work from home, did you work from home from nine to five?
10:16:42 Mr. Carr Not always, ... with flexible hours, in general I was quite focused on critical problems and so if a critical problem had to be fixed, I would fix it, but some time there would be problems that needed to be fixed and I would do them on a Sunday morning. Like in exchange for the doctor's office, I notified people that I had a doctor's on the morning of October 1st, and that I wouldn't be in until I think 11 I said, I got in at 10. And then I worked Sunday because there was work in the queue and problems that needed to be fixed and I think I worked on Sunday from 10 to 2 to cover those hours.
10:17:21 [Bob] OK.
10:17:26 Ms. Smith Now didn't you say that you weren't allowed to take time off for doctor's appointments?
10:17:29 Mr. Carr That was using the 'work from home' and flexible hours, that they say we no longer have flexible hours and we no longer have 'work from home'. So, if they had imposed the policy of you can't 'work from home' and you don't have flexible hours and you can't take paid time off and you can't do leave of absence which is the previous things they had said then it was untenable because I couldn't schedule a doctor's appointment because John never signed off on any PTO. It was the 'work from home' that allowed me to do the doctor's office that morning.
10:18:03 Ms. Smith So, [John] first imposed this policy on October 1st?

Plone Page
Get Back to You

10:18:07 Mr. Carr He had mentioned it a couple of months ago, just after the Jaguar system was turned off. He published a rules and requirements on plone one of our on line systems but didn't tell anyone about it. And then later in a meeting he mentioned it to me and at the time he mentioned it, I said, 'Gee, it doesn't work. I don't see how I could do anything' and he said 'Well I'll get back to you on it'.
10:18:36 Ms. Smith Now according to your letter this policy not.... didn't apply just to you but to the other person in your department. Is that right?
10:18:45 Mr. Carr I dont' know. It wouldn't surprise me...
10:18:46 Ms. Smith You wrote in your letter that the manager informed you that the department was eliminating the ability to 'work from home' though all other departments were retaining it.
10:18:57 Mr. Carr Uh huh. Well see that one other person was Mike and I don't know what standards. I am sure that Mike never met the forty hours per week, he was a new guy and I didn't see him so I don't know if he was allowed to work from home. When they implemented the 'work from home' and lack of flexible hours to fire Candi about a year prior to that, I said 'Sanjay, I can't deal with that.', he said, 'No problem it doesn't apply to you.' So they tend to target, they do department policies targeting one individual and they say, 'Oh it doesn't matter, it doesn't apply to you'. So I don't know if Mike was doing work from home or if he was permitted to, no one informed me of that.
10:19:35 Ms. Smith OK. Go ahead [Bob].
10:19:37 [Bob] Thank you... Mr. Carr do you believe that a company... or I'll just make it specific that ... the benefit of .... Let me start over. I'm sorry. Do you believe that by providing the ability to 'work from home' the company here was providing you with a benefit or do you rather believe that it is your right to work from home?
10:20:07 Mr. Carr I think the 'work from home' benefited all parties in the sense that certainly with the Jaguar system...
10:20:20 Ms. Smith Excuse me, Mr. Carr, ... Mr. Carr this is a very specific question. Was it a company benefit or was it your right to work from home?
10:20:31 Mr. Carr I don't think that it is necessarily a right to work from home. No.
10:20:37 Ms. Smith [Bob].
10:20:39 [Bob] Thank you... Do you... Do you contest that a company can implement or change a policy talking about a policy dealing with working from home as it sees fit or the ... to meet the objectives that the company is trying to accomplish at any given time.
10:21:01 Mr. Carr ... You know most employers are employees are at will, employment at will and so what ever terms they find agreeable are just fine. So, sure they can change at any time and I had no particular to them letting me go because the people in India were cheaper. I just think that they ought to say up front that we are letting you go because the people in India are cheaper. That's fine, that's their right. I had no problem with that. They just ought to be up front about it.
10:21:32 [Bob] Do you contend that ... or ... Do you ... Are you... Is it your position you did not refuse to work from the office on every day of the ... err nine to five every day of the week?

Would Not Sign False Document

10:21:46 Mr. Carr I refused to sign a document saying that I would be in at work every day at 9 oclock unless I had prior approval, no matter what or unless I was so sick that I could get a doctor's appointment. I did not believe that that was possible. That I thought that there would be something that came up which would prevent me and there were no other options provided.
10:22:10 [Bob] Did you discuss with anyone that you felt that, just using a hypothetical here, if I am sick and don't feel I should come to work but not sick enough to go to the doctor, did you talk to anyone about that and say that is an unfair treatment?
10:22:25 Mr. Carr ... There were various people that I spoke to about it, it didn't include Larry or John. I mean we had rough discussions about is it possible to meet those requirements.
10:22:42 Ms. Smith And who did you speak with?

Statement of Impossibility at Meeting

10:22:44 Mr. Carr Co-workers. Did you speak with anyone in management? At the discussion, I spoke with Larry and John, saying that is just not possible for a person to be there everyday at nine without prior approval.... You know emergencies come up, and as they described there was no alternative. If I wasn't there every day at nine then I was fired.
10:23:15 [Bob] Is it your sworn testimony that you could not have taken time off if you were sick unless you had to go to the doctor?
10:23:23 Mr. Carr I actually am quite comfortable with the policy of you have to get a doctor's statement and I believe that is the written policy of InfoGroup. If you are going to take sick leave it does not have to be scheduled but have to after the fact get a doctor's statement, and I have no problem with that, it is the other emergencies that come up that weren't considered in the policy as it was being enforced in my case.
10:23:53 [Bob] OK. Is it your sworn testimony then that if your car broke down you don't believe they would have worked with you to allow you to be at work a little late whether it be five minutes after nine maybe you had to be several hours late if you had to find an alternative way to get to work.
10:24:15 Mr. Carr That is not my reading of what was being presented to me. It is my belief that they were out to fire me because the people in India were cheaper and they were looking for reasons to fire me and that would be a reason that they would use. That was ...
10:24:30 Ms. Smith Mr. Carr. Please, this is not appropriate, you are being asked a question you need to answer the question.
10:24:39 Mr. Carr OK, I'm sorry.
10:24:40 Ms. Smith Please do not go on.
10:24:42 Mr. Carr Yes, can you restate the question.

Wording of Written Policies, Mr. Carr's Conclusion

10:24:44 [Bob] I certainly will. Is it your sworn testimony that if you were not at if you were not at the office by nine oclock every day you thought you would be required... you thought you would be terminated regardless of any particular reason.
10:25:00 Mr. Carr Yes.
10:25:03 [Bob] OK
10:25:04 Mr. Carr So the reason I expanded is because that is probably not the answer you expected, but it is my belief that I would have been fired.
10:25:12 Ms. Smith OK, Mr. Carr, do you have in front of you this Final Written Warning document?
10:25:17 Mr. Carr ... I'll pull it out.... Yes.

Ambiguous Business Hours

10:25:38 Ms. Smith OK. Do you see anything on this document that says that by signing it you are agreeing that you will be at the office at 9AM every day?
10:25:48 Mr. Carr No.
10:25:50 Ms. Smith OK. So, ... would it be correct that by signing it you wouldn't be making that commitment, which you considered impossible.
10:26:07 Mr. Carr No, because with my past experience with paid time off, that until... prior to the Jaguar system being turned off and I was still a critical resource, paid time off was given very liberally. You know I would just say, 'Is this OK?' and he would say 'Sure' and we would fill out that paperwork and it would be done. It was done very informally...
10:26:26 Ms. Smith Mr. Carr, again, your not listening to my question. At first I understood from your testimony that it was a matter of integrity that you were not going to sign your name to promise something that was impossible, and that the two things you thought were impossible were completing forty tasks per week and being at work every morning at 9AM no matter what. Is that correct?
10:26:51 Mr. Carr Uh huh, but if you note in the Final Written Warning it says and he is expected to work in the office during business hours. Now... clearly there is an expectation that I work forty hours, I was salaried, but it was expected forty hours and during business hours means I have to be there unless I get paid time off, but it was my experience that paid time off was not an option.
10:27:23 Ms. Smith One other thing about this document, on this document [John] writes previously I had set the policy with Brian that he does not have 'work from home' priviliges and he is expected to work in the office during business hours. And on your letter, which is exhibit 6 you said that on October 1st, 2008, the department was eliminating the ability to work from home. So, had [John] told you before October 1st that you were not allowed to work from home.

Get Back to You

10:27:56 Mr. Carr Yes. Two or three months prior that we had a one on one meeting, again, if I had access to my emails I could tell you the date, at which time he informed me that the department was ... eliminating it, and I informed him, that was after the restrictions on paid time off, and Jaguar had been turned off, I was no longer essential, and he had stopped granting paid time off and he informed me that I could not work from home and I said, 'I don't see how I can meet the required work hours, you know, things come up'. And I said 'I can't meet it' and he said 'Oh, I'll get back to you'.
10:28:36 Ms. Smith OK, I heard you testimony but what I want to know... I am sorry, maybe I should have asked a more specific question. On September ...., between that time and October 1st, between the time [John] said he'd get back to you and October 1st had [John] ever told you you were not allowed to work from home.
10:28:58 Mr. Carr I am sorry, could you repeat the question?
10:29:01 Ms. Smith Yes, between that conversation two or three months before October when [John] said he was eliminating work from home and then you asked about it and he said he would get back to you, ...
10:29:18 Mr. Carr Uh huh.
10:29:20 Ms. Smith Up until September 24th had he told you you couldn't work from home?
10:29:27 Mr. Carr No, he had never gotten back to me on that issue.
10:29:30 Ms. Smith OK, thank you. [Bob] do you have other questions?
10:29:34 [Bob] Ah, very briefly.... Sorry I was just taking my note and I lost my place.... Mr. Carr, again, is it ... Let me phrase this differently.... Is it your testimony again then on your, I believe it was October 1, where you met with Larry XXXX and John XXXX, did you discuss that you were no longer being allowed to work from home?
10:30:09 Mr. Carr Can you repeat the question, I'm sorry.
10:30:15 [Bob] Sure, I kind of rambled there and I apologize for doing that. Let me state it clearer.... On that meeting where you met with Larry XXXX and John XXXX did you discuss the fact that you would not be allowed to work from home anymore?
10:30:32 Mr. Carr Yes.
10:30:33 [Bob] And is it also your position that you also discussed performance related issues at that meeting?
10:30:41 Mr. Carr Yes.
10:30:42 [Bob] OK. Now... Did you... then... you.... and it is also your testimony, am I correct that you refused to sign the Final Written Warning in part because you did not want to have the ability to work from home removed?
10:31:10 Mr. Carr In part.... Did not want... It is true that I did not want to have the 'work from home' removed, however, it was my belief that I would be unable to meet the required work hours given the restrictions on paid time off without the work from home. So I could not meet the conditions of employment working forty hours a week on a regular basis with the restrictions on paid time off which I had experienced and without it. So, it was my belief that I could not meet the conditions of employment without it.
10:32:02 [Bob] Do you... Did I understand correctly that you could not work forty hours a week?
10:32:15 Mr. Carr ... Within the constraints that it had to be within certain hours, you know there is like no flexibility, they also said it had to be within those hours, and the other thing is that, another problem with that is, routinely, the system ran 7 by 24, so we were routinely asked to work in evenings and on weekends, for example, so if a problem comes up, you fix it when it comes up. And those were routinely counted as work hours, right, you are a salaried employee, you work when you need to work. And so... I guess my concern is that there would come a day when my car broke down and I got in late and if my condition of employment was I had to be there at nine or if I had prior approval I didn't see how I could do it.

Alternative to Quitting, 40 tasks

10:33:11 Ms. Smith Why didn't you just wait until that day came?
10:33:18 Mr. Carr That is one of the things that I have been thinking of. That maybe I should have just said, 'OK try to fire me'. It would have entailed me signing a document that I believed false, but the other problem was the forty tasks per week, and that really concerned me because I could easily press the resolved button forty times per week, but there was an expectation that when I pressed the resolved button that I had really fixed the problem. And I don't believe,... The problems we were seeing on Enterprise were much to complex to warrant fixing an average of an hour a piece. Most of them, .... the median might be an hour a piece but if you get a few jobs that run you....
10:33:57 Ms. Smith So you explained this very well. I understand that. So if this document had not had the forty tasks per week, would you have signed it?
10:34:08 Mr. Carr Probably.
10:34:10 Ms. Smith And if hadn't had the... 'you have to work... no working from home' requirement would you have signed it?
10:34:24 Mr. Carr ... The forty tasks, ... if it didn't have the no working from home and not the forty tasks is a killer, ...
10:34:32 Ms. Smith OK. I got it.
10:34:35 Mr. Carr And the work from home.... Yeah I'm willing to give it a try to see how it works out. One of my concerns is John was just mad because we weren't meeting his productivity goals. And if instead of me working from home occasionally I just said 'Oh I am taking paid time off' you know my car broke down so it is going to be four hours because I just couldn't get in on time, that would make the problem worse, you know, as opposed to working from home and working in the evening to cover for it. And it would just make him madder and he was already mad. I would have given it a try if there weren't the underlying issue of forty tasks per week.
10:35:17 Ms. Smith OK, [Bob].
10:35:20 [Bob] Yes, and I will wrap up here very briefly. Do you believe it is unfair for a company to ask that their employees be at work from certain hours what, be it nine to five, or eight to four or whatever they may ask?
10:35:36 Mr. Carr Nope, it is completely reasonable.
10:35:38 [Bob] OK, thank you. I have nothing further.
10:35:42 Ms. Smith OK. Are you going to testify [Bob] or do you want [Larry] to testify or both?
10:35:47 [Bob] Well, I can... Let me explain kind of our roles here and maybe that will help clarify. [Larry] is the on site person who would know the details of conversations and the actual conditions at the employment location. My role here has been to sort of summarize our position and I don't know if you like a closing statement, bu to do things like that and to get testimony out of Mr. Carr, but ...
10:36:26 Ms. Smith OK, then let's then have [Larry] testify.
10:36:29 [Bob] I believe that that would be best.
10:36:31 Ms. Smith OK... [Larry] say you full name and spell your last name.
10:36:40 [Larry] Larry YYYYY XXXXX X X X X X X X X.

[Larry] Testimony

10:36:47 Ms. Smith OK, [Larry], I need to ask you to testify under oath, so would you please raise your right hand and answer this question. Do you solemnly swear or affirm that the testimony that you are about to give will be the truth, the whole truth, and nothing but the truth?
10:36:59 [Larry] I do.<

No discussion of PTO at Meeting
Denial PTO, Trust Me

10:37:14 [Larry] OK, the PTO... (coughs) Excuse me, I've got this cold... The paid time off issue was specifically to my understanding it was not related to any specific emergency, doctor's appointment, scheduled .... I mean unscheduled sicknesses, illnesses, car breaking down, or anything like that. My only knowledge of any PTO issues was because we have a policy that caps accrual at a certain number of hours and Brian .... Mr. Carr was coming on that cap ... went to his manager, [John], asking for some time off with short notice saying, 'Heh if you don't give me this time off I am going to... lose time... I am not going to get an accrual for this month because I am at my cap, the maximum allowed. And [John] said 'Well you know it is my understanding that the granting of PTO in a situation like that is at manager's discretion and right now we're very short handed and ... because they had recently lost ... some support in their department (sneezes).... Excuse me.... And so he said I am going to have to deny this request for that purpose, but he said, you know, don't worry I will make it up to you, we'll take care of you down the road, we will make you whole with regard to that once we get, you know, staff back up a little bit and it is not such of critical importance to have you here. ... And Mr. Carr came to me and said that 'Is that the case?' and I said 'Yeah, it is at manager's discretion and in this case he has the ability decline PTO requests, just like any other department head would if he was, for example, trying to take off the day after Christmas this year. If everybody requested it the business still needs to operate, not everyone is going to get that request granted, depending on what the business needs are'. And Mr. Carr asked, he was upset. Basically I said 'Anything that you and [John] work out, you know, you can trust him, you have known him for many years, you have known us, no one is going to do anything to short change you.' And I guess he wanted [John] to put it in writing, and [John] woudn't do that. He said, 'I can't put that in writing, but I will certainly honor what I told you'. And I had every confidence that that would have been the case.
10:40:15 Ms. Smith [Larry], were you [John]'s supervisor?
10:40:19 [Larry] No, I am the HR manager for the company and [John] is a ... one of the other manager's in the department.
10:41:30 Ms. Smith And did ... do you approve of side agreements with employee's that they are not willing to put in writing?
10:40:39 [Larry] Well, ... I said basically something that would have to be worked out between them. Normally the policy would be that if you don't earn the accrual then you lose that time. That is the official policy with the company, but there is some flexibility that manager's have to give the ability to take a little bit of time off and that sort of thing but that is on a case by case basis and not something that HR is involved with.
10:41:13 Ms. Smith OK, so would you have put that agreement in writing if Mr. Carr had asked you?
10:41:23 [Larry] ... No, .... because basically the policy is that if you lose that time, then that time is gone. So, I really couldn't promise that it would be made up to him.
10:41:36 Ms. Smith And does it seem reasonable to you that he was not willing to accept a promise like that if he didn't get it in writing?
10:41:46 [Larry] ... I think that ... I think that that would have been..., I can see what your saying as to whether it was reasonable to accept that.... But the alternative is...
10:42:00 Ms. Smith Mr. Carr sounds like a person who was very attentive to detail and does not want to sign his name to anything that isn't correct, and if your telling me the policy is that it was against that and you wouldn't have put it in writing and [John] wouldn't put it in writing is it reasonable that Mr. Carr would not accept that assurance.
10:42:20 [Larry] Well, ... probably that would be reasonable to accept that the alternative is that you've lost the time and unfortunately it would have been good to plan ahead and not wait until the last minute to make those requests.

Review Leave Requests

10:42:36 Ms. Smith Well, just looking at the requests that I am seeing here, and I am assuming some of these were granted and some weren't but April 30 for May 9, May 2nd for May 30th, these was one from May 13th for May 14th, that looks like the last minute, May 7th for May 16th, I mean how much notice did you need for your company.
10:43:01 [Larry] ... Basically the policy (flips through pages) ... prior ... so I think it is .... I think it prefers two days notice, but it is at the manager's discretion as to whether or not that can be granted.
10:43:22 Ms. Smith OK, let's go to the last day of Mr. Carr's employment. You were at the meeting with him and [John]?
10:43:29 [Larry] I was.
10:43:30 Ms. Smith OK, would you tell me from your recollection what happened at the meeting?

Last Meeting

10:43:33 [Larry] Thank you, your honor, it was a very interesting difference in perception I think here. ... Specifically, [John] had come to me prior to this meeting and said that he had that he had made it clear with Mr. Carr that was not an option for him on a regular basis, is not something he can just expect to ... to take that time to work from at his own discretion and he was informed of that verbally, he was told.... he sent.... Mr. Carr sent out a notification on September 24 by email to his manager saying that he would work from home after he had already been told that that was not something he could do ...
10:44:28 Ms. Smith This is what [John] told you?
10:44:30 [Larry] Yes.
10:44:31 Ms. Smith OK, go ahead.

No Action Until October 1^st, Ambush

10:44:33 [Larry] ... and Mr. Carr went ahead... and [John] told him... told him that you ... you do not have the ability to do that.... Mr. Carr then worked from home, called ... basically worked from home apparently on September 25th ... disregard for being told that and [John] came to me and said we to formalize ... put this in writing so he can see it, so we basically are all on the same page with what the policy is.... So, the purpose of the .... [John] put together this performance improvement plan, Final Written Warning for Brian Carr, for us to discuss on October 1st, ... because Mr. ... really wanted to get it taken care of by Octiober 1st because had announced that he would the 2nd to work from home as well. In violation again of a direct contradictory order. And so, [John] prepared this. I reviewed it. He brought Mr. Carr into my office on October 1st and we sat down with every intention that this would be a clarification of what the expectations were. There was no intention of .... Mr. Carr leaving the company at that time. It was basically just, 'Heh, we've got an issue, we want to make clear what the policy is and things are and so that we are all on the same page.' At no time did Mr. Carr even review this document during this meeting. He didn't actually see this document with the opportunity to read it until he subpoenaed it down the road and I provided it in the packet of information. So this document was never presented to him at that meeting. Nor did the meeting even touch on the issue of productivity, it was specifically related to the working from home. Mr. Carr started out by saying 'I have a problem with you taking away my ability to work from home and I can't reasonably be expected to not work from home. I am a single guy. I've got issues that I need to take care of. And I need to be able to work from home as I have been for a while now.' And he said 'No that is not something that is on your condition of employment, that is not something... you don't have any contractual or guarantee that says that you can work from home and the determination has been made by your manager that ... that is not tenable under these circumstances.
10:47:29 Ms. Smith This is you speaking, [Larry]?
10:47:31 [Larry] I'm sorry.
10:47:32 Ms. Smith You said that, or [John]?
10:47:33 [Larry] ... Honestly, I don't remember who said which.
10:47:39 Ms. Smith OK, go ahead.
10:47:40 [Larry] We were both kind of on the same page. I believe that [John] did the majority of the talking, but I did some clarifications and I did ... basically tried to facilitate between the two of them.
10:47:50 Ms. Smith Thank you, go ahead please.
10:47:54 [Larry] Sure, ... Mr. Carr said 'Well ... basically your saying that I can not work from home anymore' And ... Mr. Carr said 'Basically well you are saying I can not work from home tomorrow' And [John] and I both agreed that 'No you can not work from home tomorrow' and Mr. Carr said 'Well then I can't work here anymore. You are changing the terms and conditions and work place of my employment.' And I said 'Well, you know, the intention here was to try and come to an understanding of what the expectations are, not to have you go out the door.' And he said that he can't work here anymore. ... And so I said 'So you are saying that if we don't allow you to work from home tomorrow then you are going to go back to your desk, pack up your things and leave now.' And he said 'Yes'. And I said, 'Well we would consider that a voluntary resignation.' And he said 'No, it would be an involuntary termination because you're changing my work conditions.' And I said 'I believe we have... you know, I don't think that is true, but if that is ... I will certainly tell our side when you file an employment claim, umemployment benefits claim, and we will let them determine what is the case ... based on those facts, but we are allowing you work, we would like for you to continue to working here.' And we... we wanted him to continue basically only wanted to establish ground rules in writing so that we were all clear on this. So, he basically decided to leave at that moment and I never did present him with this document itself. So, it is not that he refused to sign it, he didn't have the opportunity to sign it because he was never given it to read. And productivity was never even mentioned in that discussion.... That sums it up.
10:49:55 Ms. Smith OK, was there a discussion about his badge?

Ask for Keys

10:49:58 [Larry] ... Yeah, ... I think basically I asked to have his keys and any work equipment and then made arrangements for him to come back the next day to get some other things that he needed to get.... Escorted him back to his desk to get the immediate things that he needed, I think.
10:50:20 Ms. Smith so, if he had agreed that he would not longer work at home ... would you have ... would you have had him continue working there.'
10:50:38 [Larry] Absolutely.
10:50:40 Ms. Smith OK, ... and is it your testimony that there was discussion at all about the forty task requirement or his performance?
10:50:50 [Larry] At that meeting, there was, no.
10:50:53 Ms. Smith OK...
10:51: [Larry] But my understanding is that although I had not been in those discussions, according to what [John] had related to me, they had had prior verbal discussions about this.
10:51:07 Ms. Smith OK... And what is your companies policy about ... coming in late when you have a car accident or need to see a doctor, do you have a written policy about that?

No Written Exceptions, Verbal Policy Only

10:51:23 [Larry] I can't really quote what the written policy is about that off the top of my head, but we do have very flexible ... the fact that anybody would think that if 'Gee my car was damaged couldn't come in late then I would get fired'. We have nothing in writing that says anything along those lines.
10:51:49 Ms. Smith Do you have any reason to think that [John], told something like that?
10:51:55 [Larry] I have no reason to believe that, no.
10:51:57 Ms. Smith OK.... What... what sort of time off does an employee get if there is some sort of unexpected emergency or a medical problem? Where they... OK
10:52:07 [Larry] We have a... Basically we have a paid time off policy which is formally taking paid time for anything from medical necessity to illnesses, personal business, vacation, bereavement. Any of those things is covered by the paid time off policy. .... But also our salaried employees, we have a lot of flexibility in the actual hours that people are there. If there is some reason why someone needed to come in late because of some issue, I believe that [John] or any other managers in our company would be completely willing to work with somebody on that, and as this document points out, we weren't really specifying specific hours. Yes we wanted him in the office during business hours but it is not like you had by there at nine oclock and I believe that he often cam in a 8:25 or something like that anyway.... So didn't actually specify the hours, it was more task related in productivity. So we have a lot of flexibility (noise of papers shuffling)....
10:53:35 Ms. Smith I'm sorry I lost you last few words.
10:53: [Larry] I just said 'So we have a lot of flexibility when unexpected circumstances arise.' And all of our managers up to the top including [John] are very reasonable....
10:53:52 Ms. Smith OK.... Thank you.... [Bob] do you have other questions you would like to ask [Larry]?

Lost PTO

10:54:00 [Bob] I do actually.... I was just reviewing my notes because I think you actually cleared them up at the very end.... But I do have one very brief, maybe a follow up here.... [Larry] earlier in your testimony you were discussing the policy or the lack of a written policy document where [John] would have documented that Mr. Carr could have taken the lost ... quote unquote 'lost' PTO it had actually been accrued and lost. Do you recall that testimony?
10:54:45 [Larry] Yes sir.
10:54:46 [Bob] And you said that you could understand why someone wouldn't necessarily be comfortable just taking another person's word for that. Do you recall that?
10:54:58 [Larry] Yes sir.
10:55:00 [Bob] Is it... Is it common for managers in your company allow employees to take PTO after it had been again quote unquote 'lost'?
10:55:16 [Larry] ... Honestly, I don't know exactly. It is not something that is usually gone through human resources, it is more on a case by case basis.... I do believe that everybody understands that there are certain circumstances, especially in a case like this where .... honestly [John] was aware that Mr. Carr ... it wasn't Mr. Carr's fault that the department was short staffed at that time and so I don't know how often it occurs... with any sort of ... frequency but I do know that occur. I have heard of other cases where it has occurred where people basically say 'Hey, you know... we'll look at this and ... take care of you.' basically.
10:56:10 [Bob] OK, thank you. I believe, your honor, you clarified the other questions I had to follow up as regarding sick time and what would happen in regard to an emergency.
10:56:23 Ms. Smith OK, [Larry], I do have one other question. And this has to do with one of Mr. Carr's exhibits, .... his letter which I have identified as exhibit number six. ... Do you have that with you?
10:56:34 [Larry] The one dated October 13th, 2008?
10:56:36 Ms. Smith Is that the date on it, OK, the date is obliterated on my copy. Mr. Carr, was that the date of your letter?
10:56:43 Mr. Carr I believe so. Yes.

Other Departments Work From Home

10:56:45 Ms. Smith OK. I am going to ... I'm just going to write that on my copy and initial it.... OK, ... So, [Larry], at the end of the second paragraph, it says 'As all other department's of the company retained the home work... work home option, I offered to transfer to another department or to go on a leave of absence until there was work available which provided the flexibility in work location and work hours which I required. This was unacceptable and I was separated for that reason.' Can you comment on that, please?
10:57:05 [Larry] Sure, basically, it is incorrect that everyone else in the company has the ability to work from home. Certain positions do not even lend themselves to that, and there are some people who do work from home, but it is not usually on a regular basis, it is more on an 'as needed' basis, not on a every Thursday or every other Thursday. And as Brian was relating,... and I do ... As Mr. Carr was relating and I do feel that it may be misleading also looking at our own performance improvement plan 'Working from home (noise) typically mentioned in our document was related to a regular basis working from home in lieu of being in the office during regular business hours.' That is not the same as 'Gee there is an emergency on a Sunday and I need to dial in and do some work from home.' That's never.... that is not something that any company would discourage if it available to somebody, so .... so that was certainly something that was removed. But, for example, emergencies such as the ice storm that is happening this week. We have people who are working from home in certain positions because they have the ability to do so and they can still be productive and it is an emergency type situation. We have other people who aren't able to work from home because of their position and they have to either get to the office or they are taking PTO time during the week..... Brian ... Mr. Carr did specifically say 'Heh, I'd like to transfer to some other department where I can do this', and we didn't have any ... and we haven't had any ... positions available that would meet his skill set ... that, you know, would have that as an option. I know that he did apply, as he mentioned for the development team, but they didn't have anything.... basically they need some different skill sets than what he was looking for. Regardless of that, they don't have any regular work from home option available either, it is more of on a dial in basis based on an emergency or some sort of extenuating circumstances, case by case, not on a regular basis. And his last statement that this is unacceptable and I was separated for that reason, well.... Wasn't .... a leave of absence, this is not... You know basically leaves of absence are not used to just go into a holding pattern until such time other positions which you like better opens up in the company, that is not what we grant them for.... And so he was not separated at all by us in the first place.

Alternatives Offered by Mr. Carr

11:00:19 Ms. Smith Did he ask for a leave of absence?
11:00:20 [Larry] (garbled) said I could take a leave of absence until you can find me a job somewhere in the company where I can work from home.
11:00:29 Ms. Smith OK, and what did you say to that?
11:00:30 [Larry] I think I said ... 'I don't know what position that would be, we don't grant leaves of absences for that purpose and that basically if you leave the company and you want to reapply down the road, that is a different situation. You know, we are not going to keep ... put somebody on a leave of absence until a position opened up that they could work from home on a regular basis.
11:00:57 Ms. Smith OK, for what reasons do you grant leaves of absence?
11:01:00 [Larry] Leaves of absence are usually more for ... extended ... medical reasons ... something along the lines of ... I think we had somebody ... who was ... basically experiencing some single issues and needed to go back to their home country longer than a regular vacation time would allow. ... They are granted very irreg.... rarely.

Work from Home Policy, Written versus Actual

11:01:33 Ms. Smith OK. About your testimony about.... You were talking about the distinction between people who were regularly working from home and people who have that option on certain occasions.... In exhibit 4, this 'Performance Improvement Plan'.
11:01:54 [Larry] Yes.
11:01:55 Ms. Smith That says 'Previously I had set the policy with Brian that he does not have work from home privileges.'
11:02:01 [Larry] Yes.
11:02:02 Ms. Smith Now, ... does that mean that [John] said Mr. Carr could never work from home, I mean that apparently is what Mr. Carr assumed it meant.... Did it mean different?
11:02:14 [Larry] Well.... Well, a good question and I do see how that could be read from that without the context of the prior conversations ... which Mr. Carr was well aware of.... Working from home in this context was related to his request that he work from home on a frequent basis ... every week or two for a day out of the office ... basically as opposed to on a case by case basis. 'Hey, I've got the plumber coming in and ... I've got the plumber coming in at 10AM, can I work from home 8 to 10. That was not precluded from happening I don't believe, ...

Restrictions on PTO

11:03:07 Ms. Smith But [Larry], isn't that inconsistent with your testimony that asking for paid time off with short notice was a problem and would likely not be approved?
11:03:20 [Larry] ... I don't think it is... I think it was because... because of the purpose of why he was asking for those leaves ... those ... paid time off ... Paid time off is not not granted with short notice. I wasn't meaning to... to testify to that. It was more ... the fact that ... it was short notice ... due to ... basically ... I mean... denied... due to... Sorry let me start over, your honor. Paid time off on short notice was denied to my understanding was based on the fact that the department was short handed and ... it was basically something that the reason why it was being requested is ... was convenience for Mr. Carr to not ... lose his ... PTO accrual because he was at the capped amount. ... And ... And that is different than saying that I've got a plumber coming in, ... for example, ... at 10AM next Thursday can I work from home for a couple of hours... That I don't believe was ... generally discouraged, but in this case the manager may have just said that's it, that working from home has basically been abused and I am not going to grant it going forward, but that doesn't mean that he wouldn't grant paid time off for other emergency situations.
11:05:08 Ms. Smith ... OK ...
11:05:10 [Larry] If I said something that contradicted myself, I apologize. I would be happy to clear it up.
11:05:15 Ms. Smith ... OK ... So at the meeting with Mr. Carr, Mr. Carr didn't refuse this document at all. Didn't review this document at all, but he did come to the meeting ... after he had been told that he couldn't work from home ... he had told ... he had told his supervisor he was going to be working from home on October 2nd. Is that correct?
11:05:48 [Larry] Yes, I believe so.
11:05:50 Ms. Smith OK, and at the meeting was there any discussion about what not working form home means and whether it means never or whether it means just in emergencies or ... was there any discussion about those fine points?
11:06:05 [Larry] I think we were talking about it and I think we were all on the same page, I can't remember the exact verbiage used, but it was in regard to regularly scheduled working from home day once ever week or two. ... once every week ah ... once ... yeah ... once every week or two.
11:06:22 Ms. Smith That .... And that was discussed at the meeting on October 1st?
11:06:30 [Larry] Yes. And Mr. Carr's response was, 'I am a single guy, I can't be expected ... You know I have things that I need to take care of, I can't be expected to be in the office every day.'
11:06:44 Ms. Smith OK.... [Bob] is there anything else that you would like to ask [Larry] to testify about?
11:06:51 [Bob] Very briefly and it is just to clarify one question that I think there is a little confusion there.... And [Larry], that was regarding the question on whether taking PTO with... and not getting prior approval, there was some inconsistency there with your testimony versus working from home. If somebody takes PTO and ... it is allowed that they have a PTO day on ... next Thursday.... assuming next Thursday isn't actually Christmas, ... that person is then not working at all, correct?
11:07:36 [Larry] Correct.
11:07:37 [Bob] But if they are working from home while the plumber, the example you gave, while the plumber is around, ... then they are ... actually able to do some work from home?
11:07:48 [Larry] That is correct.
11:07:49 [Bob] OK, that's all I had. I just wanted to clarify the two positions.
11:07:53 Ms. Smith OK. Thank you, [Bob]. Alright, Mr. Carr, would you like to ask [Larry] questions about his testimony and after that, if you like, you will have a chance to testify further.

[Larry] Cross
Final Written Warning

11:08:03 Mr. Carr Yes, please. ... So, [Larry] how many copies were there of the ... 'Final Written Warning' at the time that you ... at the time of the meeting?
11:08:14 [Larry] ... I believe there was three.
11:08:18 Mr. Carr Uh huh, and where were they located?
11:08:20 [Larry] They were sitting on the table in my office.
11:08:24 Mr. Carr Uh huh, ... one in front of each individual, is that correct?
11:08:26 [Larry] ... I don't recall. ... I don't know actually...
11:08:29 Mr. Carr Uh huh, so if I were to later testify that there was one in front of each individual at the time of the meeting, facing so that they could be read at the time of the start of the meeting you would not contradict that?
11:08:41 [Larry] That is correct, because I can't recall exactly if there was one in front of you or not.
11:08:46 Mr. Carr Uh huh, and so ... you can't be sure that I didn't read it because, how long do you think it takes to read the first paragraphs?
11:08:56 [Larry] ... Well, there are two questions there.
11:09:00 Mr. Carr OK
11:09:02 [Larry] ... No, I can not be sure that you did not read it. Although you did not pick it up and examine it at any period of time, but it is possible, if it was sitting in front of you, you could have glanced at it and I don't think it takes very much time to read either paragraph.
11:09:19 Mr. Carr OK ... So, I might have read it and you wouldn't have known it.... And indeed I must have read it sufficiently to ask for it.... Is that true?
11:09:25 [Larry] No, ... you know that it was there ... you don't necessarily need to have read it to ask for it...
11:09:37 Mr. Carr Alright, but I would have had sufficient awareness of the content to ask for it. I couldn't have asked for it if I didn't know it was there. Is that true?
11:09:46 [Larry] You could have... Yes. ... I am not sure what you are getting at, but, yes, you... I believe you could have ... to be specific here ... I believe you could have not know exactly what was in it and still ask for the document.
11:10:01 Mr. Carr Uh huh....
11:10:02 [Larry] I concede that, you know,... it is possible it may have been in front of you, you may have read it enough to know a bit of what was discussed in the document.
11:10:11 Mr. Carr Uh huh, and then as to the meaning of phrases like it says 'to work in the office during business hours' ... that is somewhat ambiguous but you recognize that John and I had previous meetings and so it might not have been ambiguous to us while it might be ambiguous to you. ...
11:10:33 [Larry] I testify to that.
11:10:35 Mr. Carr And ... similarly to what the old 'work from home' policy was the new 'work from home' policy, we had had previous discussions, it might have been clearer to us, and ambiguous to you?
11:10:51 [Larry] Sure. I am sure that you guys had had conversations that I was not aware of. That is correct.
11:10:55 Mr. Carr OK ...
11:11:08 Ms. Smith Go ahead Mr. Carr.
11:11:10 Mr. Carr ... I think that is all the questions that I have for [Larry].
11:11:19 Ms. Smith Do you with to give any further testimony?
11:11:21 Mr. Carr Yes, I do.
11:11:22 Ms. Smith Go ahead please.

Mr. Carr Response
Final Written Warning Present
Written Policies Unambiguous

11:11:23 Mr. Carr ... In fact the document was sitting in front of me during the meeting and briefly during a pause in the conversation I had scanned the top two thirds of it. So I was quite familiar with the contents. It was very easy for me to understand because John and I had had previous discussions, and, in particular, I would like to note that John had published his ... thoughts on what 'work in the office during business hours' and what the 'work from home privileges' would be in a plone page which I had asked to get a copy of, but was not able to get a copy of, but ... it was not ambiguous in those documents. In fact, the 'work from home' policy that was being ended was just exactly the policy that ... [Larry] had stated as the norm which is if you have an emergency to see the plumber then you can work from home and that was what was being eliminated, based off of the plone page.... That the policy that John was saying was 'if we needed you to work from home then you had to, but ... so if the company had an emergency then you had to work from home, but if you had an emergency, your fired.' ....
11:12:49 Ms. Smith Mr. Carr, ... what is a phone page?
11:12:53 Mr. Carr Oh, plone. It is spelled P L O N E. It is one of the mechanisms we use to publish internal documents within the company.
11:13:03 Ms. Smith And this document was published to whom?
11:13:05 Mr. Carr Anyone in the company, but it was for our department. So, John XXXX published it for our department, describing the 'work from home' policy as he wanted it to be.
11:13:19 Ms. Smith And so his ... his description was ... work from home means...
11:13:24 Mr. Carr If we ask you to work from home, you can work from home, and that is it. ... So if your car breaks down, if you have a plumber come in, you can't work from home.
11:13:35 Ms. Smith OK... and what his description of regular business hours?
11:13:38 Mr. Carr ... nine to five.
11:13:44 Ms. Smith Did you say that was part of the ... page?
11:13:45 Mr. Carr Uh huh.
11:13:48 Ms. Smith OK. And ... let me see... Do you agree with [Larry]'s testimony that at the meeting the discussion never got to the point of the forty tasks?

Forty Tasks Discussed

11:14:05 Mr. Carr He may have forgotten it. I have a distinct recollection that during the meeting I stated that I believed the underlying issue was the forty tasks per week productivity level but that I thought that that was unresolvable and there was no point in discussing it. We had had many discussions in the past about whether or not it was possible to meet that level and we were unlikely to resolve it. So I distinctly remember saying that during the meeting but Larry may not recall it being said....

Last Meeting

11:14:44 Ms. Smith OK... And do you have comments about his ... recollection of the final discussion between him and [John] and you at the meeting ... where you said that ...
11:15:08 Mr. Carr To me, there was an open ended question ... that I would ... I don't think anything he said was exactly right, it is not how I would phrase it, it is not the recollection of some of the nuances. ... Mr recollection is that as we couldn't come to terms, that they were saying that ... I had to abide by the new 'work from home' policy and the new work during office business hours which again, in that document is relatively brief but I had read the plone page that John had published previously and I knew what he had said and I knew it was to me untenable, so I wasn't surprised by any of it, and while this document is ambiguous, the plone page was not ambiguous. From my perspective we couldn't come to terms. They were insisting that I meet those requirements and I didn't see how I could meet those requirements. That they were unrealistic requirements to me and ...
11:16:05 Ms. Smith Is it your... Do you agree with [Larry] recollection that... that once ... once ... that once they confirmed that you could not work from home any more, tomorrow... starting tomorrow, then you said that you could not work there any more and that they were changing the terms and conditions of your employment....
11:16:29 Mr. Carr I said that I did not see how could meet those conditions.... That's my understanding and ... at the time I was unclear as to what it meant when you couldn't come to terms. This was the first time it had come up to me. That they were imposing what I viewed as a new condition of employment that I did not see how I could meet. That ... you know ... in fact I did have a personal commitment the next day, and ... you know ... you know personal commitments ... The policy for our department was that you could at your leisure schedule one day every two weeks.... And there were some requirements, you know you couldn't schedule it on a day where.... you know it had to be at the convenience of the company but you could schedule it on days that it fit as long as there weren't multiple people from the department on the same day, we couldn't all be out, so there were constraints but it was one day every two weeks.... So ... And
11:17:22 Ms. Smith One day ... One day of what every two weeks?
11:17:26 Mr. Carr You could do a work from home day every two weeks was the stated policy since ... for the entire time that I had been in the department.
11:17:35 Ms. Smith And you understood that that policy was being eliminated.
11:17:37 Mr. Carr And I had used that used that one day every two weeks to schedule around plumber's appointments and whatever. To cover emergencies and whatever, you know. It wasn't a fixed day, it was at the convenience of the company and myself. ... That is what it had been.
11:17:50 Ms. Smith OK... Do you recall being asked by I believe [Larry] ... 'Are you going to pack up and leave?' and you said 'Yes'.
11:18:01 Mr. Carr That is not my understanding. My understanding is 'We're at an impasse. I don't know how to proceed.' and he said, 'Well you need to give us your badge' and I said 'OK'. ... So that is how we went past the impasse of we couldn't reach an agreement.
11:18:21 Ms. Smith OK. ... Is there anything else you would like to say?
11:18:23 Mr. Carr ... Oh, I would just like to note on the ... as to the ... PTO policy ... that and the ... 'work from home' policy, that Larry described the PTO policy and 'work from home' policy that is the norm within the company, which is that if people have an emergency they can work from home, if they can't work from home they do PTO as needed if it is an emergency, just cause that is the way it is.... And through most of the company that is the way it is, almost everybody has verbal policy and throughout the time that I worked for the company up until the Jaguar system was turned off, ... that is how it was for me and if I needed to ... an emergency came up I could work from home, if I ... couldn't do a work from home I could do paid time off ... cause it was PTO ... it was offered when something came up, but the new policy that was ... that was being imposed was just for me and I don't think that Larry really understood just how unique it was, because, again, the policy that he was familiar with was pretty much company wide, that people could do reasonable things if an emergency came up, and ... for me in particular they were being eliminated. And that is where I found it was just untenable. That emergencies do come up.... So that's all I have...
11:19:50 Ms. Smith OK ... [Bob], any questions? ... [Bob]?
11:20:02 [Bob] Sorry ... I ...
11:20:05 Ms. Smith Do you have any questions?
11:20:07 [Bob] Yeah, just one very brief one if I may. ... Mr Carr ... the ... this goes back to the discussion of the changing of the policy regarding 'work from home' that you had talked about just a couple of minutes ago. .... Wouldn't it be .... Would you disagree ... that it is ... isn't it reasonable ... for a ... if the situations change and a company elects to change a policy that it would be reasonable for them to do so?
11:20:38 Mr. Carr Sure.
11:20:39 [Bob] OK, that's all I have.
11:20:41 Ms. Smith OK ... Mr. Carr were you willing to come to work and not stay at home on October 2nd?
11:20:48 Mr. Carr ... I think ... I think I had scheduled an appointment, I think I had a phone interview for another job... So I think I had made plans... I had announced it well in advance, you know, there were no conflicts and that would be a good day and there was something I needed to do in the morning which would have precluded me coming in at 9AM. So I had made another appointment and I had scheduled it well in advance and it was within the one day every two weeks requirement.... So, ... Can you rephrase the question? I'm sorry. ... Restate it?
11:21:29 Ms. Smith OK ... Well, I am just asking ... If at the end of the discussion that you had with [Larry], if [Larry] said are you going to be here within business hours, 'What would you have said?'
11:21:48 Mr. Carr ... If I thought that they were gonna work with it, well I can get in late, you know, I think it was a morning appointment ... and I guess if I thought that they were going to work with me, I might see if I could reschedule the appointment, but the other thing is I didn't see that there was really any, from my perception, they were changing the rules in order to find a reason to fire me, you know, as I was saying they had bonuses on the line of getting less expensive people and I had seen six other people go, the same way, the same systematic ... and I didn't think it would do any good, but if I thought it any good I would have... , you know, if I thought there was a reasonable chance that I could continue to work for them, I would have been happy to reschedule the appointment. I only scheduled the appointment at that time at the convenience of the business, you know, that it wouldn't impact things. And, I could reschedule it, so I guess it was a perception that there was no way I was ever going to meet the underlying problem which is forty tasks per week. So, why reschedule an appointment when you know that 'well if you're not fired tomorrow, they'll find another excuse the next day ... or the week after'.
11:23:15 Ms. Smith After this incident that was described ... in the final warning about how you took the 25th off, did [John] speak to you?
11:23:29 Mr. Carr Not until the ... October 1st [concerning working from home].
11:23:33 Ms. Smith OK ... alright ... [Bob], any more questions for Mr. Carr?
11:23:40 [Bob] No, your honor.
11:23:43 Ms. Smith OK ... [Larry] before the events of October 1st had Mr. Carr ever been warned or disciplined in any way about his work or his work performance?
11:23:53 [Larry] Yes, my understanding is that he had been verbally discussed, ... had been discussed verbally on more than one occasion between ... himself and [John] but there was no written warning in his file.
11:24:06 Ms. Smith OK ... Would you care to comment on Mr. Carr's recollection of the final conversation between you and him and [John]?
11:24:16 [Larry] Sure, ... regarding the questions which he was asking about reading the document?
11:24:23 Ms. Smith No, about what he says occurred?
11:24:25 [Larry] OK.
11:24:27 Ms. Smith His belief that he was fired.
11:24:27 [Larry] Yeah, ... No, the ... I had no intention ... neither of us, [John] had any intention of this being Mr. Carr's last day. The whole idea of performance improvement plans is to help somebody be successful, ... deciding exactly what the expectations are so that we can kind of monitor them as we go forward and work toward the same goals of having a good work place and good productivity for the company. So, I was honestly quite surprised when Mr. Carr said ... 'If you tell me I can't work from any longer on a regular basis and ... I can't take tomorrow .... I can't work from home tomorrow then I can't work here anymore. ... That was quite a shock to me honestly. I told him that, 'The intention of this meeting was not for you to be leaving, we didn't want you to leave, we wanted to work it out, so .... I did not characterize it in terms of 'Alright then, give me your badge.' or anything like that, it was more like 'OK then, well if your saying your done here, I need to have your keys, your badge, your equipment, anything else you need, we will go back to your desk you can get your stuff and we can make arrangements for you to come back with your car to get your plants and other things that you need to get. ... So, ... It was certainly not ... my recollection of it ... It was not heavy handed at all. The whole intention from [John] and myself was to ... basically ... explicitly state in writing what the expectations were and work towards the goal of bringing Mr. Carr's performance up to what was required for the department, ... not any intention of getting him out of the department.
11:26:28 Ms. Smith And after hearing his testimony do you recollect any discussion about the forty tasks requirement.
11:26:33 [Larry] I honestly do not. If it was mentioned it was in an aside.... an aside, I would assume, but I don't actually recall that it was mentioned in that meeting at all. ... It may have been something like ... he may have said something along the lines of 'that is not the underlying issue'. I don't recall him talking about tasks for anything like that but ... as far as we were concerned, both [John] and I after that meeting said 'Why did that happen?'. You know, 'Why did he leave?' All we were doing was, you know, stating our expectation.... It seemed like ... It seemed to us Mr. Carr was cutting off his nose to spite his face.
11:27:24 Ms. Smith Well ... given that there seems to be general agreement between you and Mr. Carr that his department was short staffed, as a business decision, would it have made sense to get rid of this very experienced employee at that moment.
11:27:38 [Larry] It wouldn't have. And [John], you know, was wounded as I was just from a human stand point, but [John] was not ... you know ... he was kind of upset with the decision that Brian made to leave.
11:27:56 Ms. Smith OK ... Alright, ... Mr. Carr, any more questions or anything else you would like to say?
11:28:05 Mr. Carr ... Let me think ... No, that is sufficient.
11:28:18 Ms. Smith OK ... [Bob] is there anything else you want to ask [Larry] to talk about?
11:28:24 [Bob] One very quick thing again.
11:28:26 Ms. Smith OK ...
11:28:28 [Bob] [Larry], in Mr. Carr's testimony a few minutes ago he mentioned ... that it was his impression that a policy was being applied just to him. Do you recall that testimony?
11:28:43 [Larry] Yes.
11:28:44 [Bob] You do?
11:28:46 [Larry] I do recall it, yes.
11:28:48 [Bob] OK. Is that true? Was there any policy that was being applied just to him?
11:28:58 [Larry] ... No.... I don't believe so. ... Although I was not in on any conversations that [John] had with anybody else in the department, regarding this issue.... My familiarity it was relative to Mr. Carr and the fact that ... [John] had clarified the policy to people and Mr. Carr seemed to be the only one who was difficulty accepting that and working within the parameters that [John] spelled out. So, I don't think it was being applied only to Mr. Carr, but I do think that Mr. Carr was having ... the only one having difficulty accepting it.
11:29:40 [Bob] So ... your not aware of any rules being implemented specifically for Mr. Carr as far as PTO or work from home or whether it could or could ... or ... emergencies that would require him to be late or miss work?
11:30:03 [Larry] No, I have no knowledge of any discussions about his inability to dela with an emergency or anything like that. No.
11:30:11 [Bob] OK, thank you. I have nothing further.
11:30:13 Ms. Smith OK ...
11:30:20 Mr. Carr I guess I would have a couple of comments to make....
11:30:21 Ms. Smith Mr. Carr, could you just tell me that ... that plone ... plone msg that you mentioned earlier? To whom was that directed?
11:30:28 Mr. Carr It is plone P L O N E page. It is like a web page, and plone is mechanism that you post it and it is posted on the internal web so that anyone who works for InfoGroup could access it.
11:30:43 Ms. Smith OK ... and so it was just posted to everyone for everyone to see.
11:30:49 Mr. Carr Uh huh. So I guess ... [Larry] I have a question for you, if that is alright.
11:30:58 Ms. Smith Go ahead.
11:30:59 Mr. Carr So, ... are aware of what the attrition rate within the department of people supporting the Jaguar system and data production status was up until they started turning off the Jaguar system? Had it had high attrition, low attrition, normal attrition?
11:31:16 Ms. Smith Mr. Carr, I'm sorry but that is really not relevant to the reason that you lost your job.
11:31:23 Mr. Carr Well, there was a question in particular about ... was I being singled out. And the other thing about the normal policies. And I guess one of my points is that the ... policies changed and that they did in fact single people out. Just prior to Candi being fired, Candi was the first of our group to be fired, they implemented new work policies which were just for our department, but when I spoke with Sanjay, he said it didn't apply to me. When Jim spoke to him, he said that it didn't apply to him and so it only really applied to one person, but [Larry] would be unaware of the policy in the first place because it was published internally to everyone in InfoGroup but not copied to Larry. He was never aware of it and he wouldn't be aware of the exceptions. And similarly I am sure that Mike did not meet the forty tasks per week requirement and so it was only being applied to me. And likewise, I don't know what agreements ... I can't say sure that there wasn't a private between John saying bother with this work from home policy to Mike, in which case it would only apply to me. Because the department was only me.
11:32:33 [Larry] Can I respond to that?
11:32:38 Ms. Smith Are you finished, Mr. Carr?
11:32:40 Mr. Carr Yes.
11:32:41 Ms. Smith OK, [Larry] ... Is this [Larry]?
11:32:44 [Larry] Yes.
11:32:45 Ms. Smith Go ahead [Larry].
11:32:47 [Larry] Specifically... part of the ... my understanding of that policy that your talking about, that was implemented in the past for your group and since you are mentioning another employee by name, Candi, or whatever, during that time implemented across the department, I was aware the fact that ... the clarification was that working from home is a privilege based on a case by case basis based on an individual's productivity, job description, and ability to ... basically ... be productive when working from home. And that was under a previous manager in the past. Mr. Carr doesn't really have any first hand ... any direct knowledge as to why certain people ... from ... or ... were ... no longer employed by the company and mentioning ... mentioning certain employees means ... that he is just completely... has his own ideas as to what may have transpired but they are not related to the issues which we are discussing today and that particular employee had other issues that were not relevant to this discussion. And ... as far as ... discussions with other employees like Michael, your right I haven't been in all the discussions with all the employees, one on one, with Funtake so I can't talk about that directly but I do know that if something is published as a departmental policy, it applied to everyone in the department.
11:34:48 Ms. Smith Anything else, Mr. Carr.
11:34:50 Mr. Carr Uh, yes. The reason that I had mentioned the exception to the department policy in the case ... just prior to Candi being fired is that an exception was made in my case and it was made in the case of other employees cases that I know of ... And so ... you know there was a published policy and there is no way to say that there weren't exceptions made, right?
11:35:18 [Larry] Policies say it is at manager's discretion on a case by case basis.
11:35:25 Mr. Carr I do not believe that the policy at the time said that. It was a policy which said that these are the restrictions on work during work hours.
11:35:34 Ms. Smith But that's ... But Mr. Carr, that is not the policy we are talking about and that is not the policy that was in effect on October 1st. So is there anything else you would like to about the issue in this hearing.
11:35:48 Mr. Carr I guess the only point I was making is that in fact the policy was only applied to me because it was a tiny department and we have no knowledge of side agreements, saying it doesn't apply. So if you have a department of two, if you make side agreements, then it's a department of one. It is only applied to one person. So, ... I think that that is the only point that I want to make.
11:36:10 Ms. Smith OK ... [Bob] do you have any other questions for Mr. Carr.
11:36:15 [Bob] No, I do not.
11:36:18 Ms. Smith Is there anything else you want [Larry] to testify about?
11:36:15 [Bob] ... No, there is not.
11:36:21 Ms. Smith OK ... I don't think there is any need for a closing statement unless you have something you really urgently need to say.
11:36:27 [Bob] ... No, I don't believe so. I believe that we've covered it already.
11:36:32 Ms. Smith OK, thank you all very much and you will receive a decision in the mail. Good bye.
11:36:37 Mr. Carr Thank you, bye
11:36:37: [Larry] Thank you your honor.