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Key
extracts from the Deposition of Agatha Stewart
May 4, 2000 |
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| I didn't know Caryl had Multiple Sclerosis... and I didn't know she was Jewish... and I didn't know she was white... and it wasn't me, it was Brenda Grant |
For those using music capable Internet Explorer or AOL, text accompanied by Beatles "Will you still love me when I'm 64"
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After Brenda Grant (Caryl Leventhal's main antagonist), Agatha Stewart's deposition is most important. From January 1996 until June 7, 1996 (Caryl Leventhal's last physical day at INS/USDOJ 26 Federal Plaza NYC), Ms. Stewart was her First Line Supervisor.
Relevant Text of Deposition (and commentary) appears below The world of the lawyer is very different from the rest of us. Rules of honesty and word flow become obscured by what might be called judicial ethics paranoia. In light of a very real attempt at judicial ethics, a kind of "lawyer speak" has been developed. For example, a lawyer isn't allowed to prepare a witness for their deposition by telling them what to say. In response to this, during the pre-deposition process, a lawyer might tell the witness, "are you saying .....?" This is a covert cue for the witness to use these words without overt and illegal coaching. A lawyer might also tell the witness who might be faced with a difficult question, "Remember, it's not lying to say you don't remember or don't recall." In the real world of well raised people a lie is a lie. In the lawyer's world, this is moral subterfuge and not unethical. When a lawyer sees that his witness is being asked a question that might help the opposition, he will frequently break in and say "Objection to form." If you ask a lawyer, he or she will tell you that they are doing it because of incorrect phraseology. At times this is true. It records an objection so that the question and answer might be kept out of a trial proceeding. On the other hand, it is most frequently used as a warning to the witness to be careful in their answer. This method is used because judicial ethics keep a lawyer from just coming out and prompting the witness when the Deposition is in progress. |
1 A P P E A R A N C E S:
2 MICHAEL R. BRESSLER, ESQ.
36 West 44th Street
3 New York, New York 10036
BY: MICHAEL R. BRESSLER, ESQ.
4 Attorney for the Plaintiff
5 MARY JO WHITE, ESQ.
United States Attorney
6 Southern District of New York
100 Church Street
7 New York, New York 10007
BY: ERIC B. FISHER, ESQ.
8 Attorneys for the Defendant
9 ALSO PRESENT:
10 MICHAEL LEVENTHAL
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1 I N D E X
2 WITNESS NAME PAGE NO.
3 AGATHA STEWART
4
5 Direct Examination by Mr. Bressler 5
6
7 E X H I B I T S
8 EXHIBIT NO. PAGE NO.
9 P-5 Postal receipt and letter 27
dated 6/12/96
10
P-6 Postal receipt and four-page 29
11 letter dated 6/13/96
12 P-7 Six-page affidavit with 41
signature page
13
P-8 Postal receipt and two-page 49
14 memorandum dated 6/10/96 with
three pages attached
15
P-9 Time sheets of Caryl Leventhal 51
16
P-10 Two-page memorandum dated 56
17 7/24/96
18 P-11 New York Newsday newspaper 61
article dated 3/13/98
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Betsy Condiotti & Associates
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1 STIPULATIONS
2 IT IS HEREBY
STIPULATED AND AGREED by and
3 between the attorneys for the respective parties
4 herein that the sealing, filing and certification of
5 the within Examination Before Trial be waived; that
6 all objections, except as to form, are reserved to
7 the time of trial;
8 That the transcript may by signed before any
9 Notary Public with the same force and effect as if
10 signed before a Clerk or Judge of the Co}:rt;
11 That this Examination Before Trial may be
12 utilized for all purposes as provided by the CPLR;
13 That all rights provided to all parties by the
14 CPLR shall not be deemed waived and the appropriate
15 sections of the CPLR shall be controlling with
16 respect thereto.
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Betsy Condiotti & Associates
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1 A G A T H A S T E W A R T,
2 ------ -------- -----, Springfield Gardens, New
3 York, called as a witness, having been first
4 duly sworn according to law, testifies as
5 follows:
6
7
8 DIRECT EXAMINATION BY MR. BRESSLER:
9
10 Q Good morning, Ms. Stewart.
11 A Good morning.
12 Q I'm Michael Bressler. I'm the attorney
13 for Ms. Leventhal. I'm going to ask you a series of
14 questions regarding her employment with you and so
15 forth.
16 Have you ever been deposed before?
17 A Yes.
18 Q So you
are familiar with the procedure?
19 You understand that the reporter can only record oral
20 testimony and gestures and so forth cannot be picked
21 up?
22 A Yes.
23 Q In the last twenty-four hours have you
24 taken any drugs, medication, alcohol or anything else
25 that would render you unable to answer any questions
1 today?
2 A No.
3 Q Also, if you don't understand a question,
4 please tell me and I will attempt to rephrase.
5 A Okay.
6 Q Have you reviewed any papers, documents,
7 et cetera?
8 A Yes.
9 Q What have you reviewed prior to coming
10 here in preparation?
11 A Some documentation.
12 Q Can you be more specific?
13 A A memo, some sign-in sheets, a PWP.
14 Q What is a PWP?
15 A Performance work plan.
16 Q Anything else?
17 A Some notes on papers.
18 Q qDo you have copies of those notes?
19 A No, I don't.
20 Q Are you employed at this time?
21 A Yes, I am.
22 Q By whom are you employed?
23 A U.S. Immigration & Naturalization Service.
24 Q Where do you work?
25 A The address?
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1 Q Well, do you work in New York?
2 A In New York.
3 Q What is your current title?
4 A Supervisory district adjudications officer.
5 Q How long have you held that position?
6 A Four years, four months.
7 Q When did you start?
8 A January of '96.
NOTE: THIS IS WHEN MS.
STEWART BECAME CARYL LEVENTHAL'S FIRST LINE (IMMEDIATE) SUPERVISOR, REPLACING
BRENDA GRANT)
9 Q Prior to that, did
you hold another
10 position at INS?
11 A Yes.
12 Q What was that?
13 A District adjudication officer.
14 Q When did you start in that position?
15 A 1988.
16 Q Well, what were your duties as district
17 adjudications officer?
18 A To review and adjudicate applications filed
19 with immigration for benefits.
20 Q What is your duties as supervisory
21 district adjudications officer?
22 A To supervise and direct the work of the
23 district adjudication officers.
24 Q Now, prior to your promotion in January
25 1996 -- I assume this is a promotion?
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19
NOTE: THE QUESTIONS AND ANSWERS HAVE REFERENCE TO MS. LEVENTHAL CLAIMING THAT SHE WAS ROUTINELY REQUIRED TO LIFT AND CARRY BOXES WEIGHING AS MUCH AS FIFTY POUNDS. SHE WAS THEN REQUIRED TO DISTRIBUTE THE CONTENTS THROUGHOUT THE OFFICE. THIS WAS NOT IN HER JOB DESCRIPTION. INDEED, HEAVY LIFTING AND CLIMBING IS DEBILITATING AND DANGEROUS FOR SOMEONE WITH MULTIPLE SCLEROSIS. MS. LEVENTHAL CLAIMS THAT HAD SHE KNOWN THIS WOULD BE REQUIRED OF HER (IT IS NOT IN THE JOB DESCRIPTION, NOR WAS SHE INFORMED OF THIS ALLEGED REQUIREMENT DURING HER INTERVIEWS) SHE WOULD NOT HAVE ACCEPTED THE POSITION. SHE ALSO ALLEGES THAT SHE EXPLAINED THE CIRCUMSTANCES OF HER HAVING MULTIPLE SCLEROSIS ON MANY OCCASIONS. THIS, SHE ALLEGES, WAS MET WITH REFUSAL TO SUPPLY ANY HELP OR ACCOMMODATION. MS. LEVENTHAL CLAIMS THAT VERY EARLY ON, SHE WAS WORKING IN AN ENVIRONMENT OF EXTREME PAIN AND DEBILITATION.
1 A Yeah.
2 Q Do you recall them being large boxes,
3 heavy boxes?
4 A The same boxes I carry every day, large,
5 heavy, I don't know.
6 Q Do you know approximately the weight of
7 these boxes?
8 A No.
9 Q Did you ever notice her struggling with
10 these boxes?
11 MR. FISHER: Objection as to form.
12 A Not that I remember, no.
13 Q Did she ever complain to you about having
14 to carry heavy boxes?
15 A Not that I remember, no.
16 Q Did anyone tell you that Ms. Leventhal
17 was complaining about carrying these boxes?
18 A No.
19 Q Do you know if carrying the boxes are part of the PWP?
21 A In particular saying picking up boxes?
22 Q Yes.
23 A Probably not, no. Distributing the work and
24 if the work is in boxes, I guess it means picking up
25 Boxes.
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2
Stewart
1 Q Now, after January, did you notice any
2 change in Ms. Leventhal's work performance?
3 A No.
4 Q Did it stay the same, get worse, get
5 better?
6 A It stayed the same.
7 Q And that was the case in February?
8 A It stayed the same throughout the time that
9 she was employed there.
10 Q For the entire time?
11 A Yes.
12 Q When you say entire time, you are talking
13 from January until June? '
14 A Until when she left. The exact date when she
15 left, I don't know.
16 Q And throughout that period, did you have
17 regular meetings with Ms. Leventhal explaining what
18 she is doing wrong?
19 A Yes.
20 Q And that was on a weekly basis?
21 A Probably.
22 Q Did you have further discussions, other
23 than what you testified to, with Ms. Grant about Ms.
24 Leventhal's performance?
25 A No.
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1 Q Do you know how many clerical staff there
2 are in section 245?
3 A Now?
4 Q No, I'm sorry, in 1996.
5 A Probably anywhere from, maybe, fifteen to
6 twenty. The exact number, I don't know, but I would
7 say in a range from fifteen to twenty, maybe.
8 Q And we are talking 1996?
9 A Yes.
10 Q Of those fifteen to twenty employees, do
11 you know what the racial background or racial
12 composition of that department was?
13 MR. FISHER: Objection as to form.
14 A I don't know. I would have to sit down and
15 think about it. Off the top of my head, I have no
16 idea.
NOTE: THE US ATTORNEY AGAIN USES THE LEGAL PLOY OF "OBJECTION AS TO FORM." A LAWYER WILL TELL YOU THAT THIS TERM IS USED TO RECORD THAT THEY OBJECT TO THE WAY THE QUESTION IS STATED. IN POINT OF FACT, MR. FISHER WILL USE THIS MANY TIMES AS A WARNING TO THE WITNESS TO "THINK TWICE" BEFORE ANSWERING. IT WILL BE USED FREQUENTLY IN THIS DEPOSITION TO WARD OF A RESPONSE THAT COULD HELP MS. LEVENTHAL'S CASE. IN COMMON PARLANCE, IT IS A "LAWYER'S TRICK."
17 Q Well, in general, would you say that it
18 was mostly African American?
19 A I don't know.
NOTE: HOW IN THE WORLD CAN YOU NOT BE AWARE OF OBVIOUS PHYSICAL CHARACTERISTICS OF YOUR STAFF? IT IS NOT RACIST TO BE AWARE OF SOMEONE'S PHYSICAL CHARACTERISTICS. INDEED, RACE IS JUST AS DESCRIPTIVE AS BEING AWARE THAT AN INDIVIDUAL IS BALD, SHORT, TALL, HEAVY OR THIN.
20 Q Do you know who Dolores Philbert is?
21 A Yes.
22 Q Do you know what her position was in '96?
23 A No, I don't.
24 Q Do you know if she was a subordinate to
25 Ms. Leventhal?
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1 A She was.
2 Q Do you recall Ms. Leventhal ever
3 complaining to you about any problems with Ms.
4 Philbert in 1996?
5 A Overall, no.
6 Q Do you recall anything she told you about
7 Ms. Philbert?
8 MR. FISHER: Anything
Ms. Leventhal told
9 Ms. Stewart?
10 MR. BRESSLER:
Yes.
11 A Nothing in particular, no.
12 Q When you had those possibly weekly
13 meetings with Ms.
Leventhal, did she ever complain
14 about her dealings with the clerical staff?
15 A Nothing that I could really remember. Nothing
16 in particular.
17 Q Do you know what the policy in 1996 is
18 regarding taking sick days?
19 A If you want to use sick days and you want to
20 schedule it in advance, if you have medical
21 appointments, you fill out a specific form, leave
22 form, and have it signed in advance. If you are ill
23 and you are going to call in sick, the employee must
24 call in to their first-line supervisor.
25 Q Were you Ms. Leventhal's first-line
1 supervisor in 1996, from January to June 1996?
2 A Yes.
3 Q So if Ms. Leventhal was sick, she would
4 call you to take a sick day?
5 A Right.
6 Q Was there a policy regarding providing
7 medical doctor's notes?
8 A If you wanted to stay out more than two days.
9 Q Can you be more specific?
10 A If you were going to be out more than two
11 days, you need a doctor's note saying you were
12 incapacitated.
NOTE: CARYL LEVENTHAL PROVIDED VIA CERTIFIED MAIL, DOCTOR'S NOTE CONFIRMING THE SERIOUSNESS OF HER CONDITION, AN MRI REPORT SHOWING THE SERIOUSNESS OF HER ILLNESS, NUROLOGIST REPORT, ETC. SHE WAS STILL DENIED ACCUMULATED SICK PAY AND MARKED AWOL FOR EVERY HOUR OF EVERY DAY SHE WAS HOME CRITICALLY ILL.
13 Q If someone was very seriously sick, would
14 a spouse be able to call in on their behalf?
15 A Only if they were fully incapacitated.
16 Q What do you mean by that?
17 A If they were unable to speak on the phone.
NOTE: DURING MS. LEVENTHAL'S CRITICAL ILLNESS, BOTH AGATHA STEWART AND BRENDA GRANT REFUSED TO SPEAK WITH HER HUSBAND. THEY PROVIDED NO INFORMATION ON THE PROCESS AND OBSTRUCTED HIS BEING ABLE TO FOLLOW A PROCESS THAT HIS WIFE CARYL WAS TOO INCAPACITATED TO DO HERSELF.
18 Q Could you tell me what AWOL means?
19 A Absent without leave.
20 Q How would someone be marked AWOL?
21 A If they have no leave and they are asking for
22 leave, you are AWOL.
23 (A short recess is taken.)
24 Q In that period between January and June
25 1996, did you ever yell at Ms. Leventhal?
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1 A No.
2 Q Did you ever raise your voice?
3 A Possibly.
4 Q Do you know the cause of that?
5 MR. FISHER: Objection as to form.
NOTE: AGAIN, ANOTHER HIDDEN WARNING TO THE WITNESS TO KEEP QUIET. MS. LEVENTHAL COMPLAINED THAT SHE WAS FREQUENTLY YELLED AT, EVEN WHEN SHE PLEADED FOR HELP AND ACCOMMODATION WHEN FORCED TO DO HEAVY LIFTING.
6 A Probably I was repeating myself one too many
7 times, probably just in an annoyed voice, not really
8 a yelling voice.
9 Q Do you know what her reaction was to
10 that?
11 A Most of the time I got no reactions from her.
12 Q When you say you got no reactions, what
13 do you mean?
14 A She wouldn't answer me back. She wouldn't do
15 anything. She would just listen to what I said and
16 then that was it and say okay and that would be it.
17 Q Do you recall Ms. Leventhal ever
18 discussing any illnesses she has with you?
19 A No.
20 Q Well, did you ever hear second hand that
21 Ms. Leventhal suffered from any illness?
22 A Yes.
23 Q Do you know what that illness was?
24 A MS.
25 Q And when did you first hear that Ms.
1 Leventhal had MS?
2 A Once she was gone.
3 Q Do you know when that was?
4 A Exactly when, no.
5 Q Do you recall ever getting a phone call
6 from Ms. Leventhal that she was calling in sick?
7 A Yes.
8 Q Do you know when that phone call came?
9 A No.
10 Q Do you know if you got any phone calls of
11 her calling in sick before June of 1996?
12 A I don't recall.
13 Q But you do remember she called in sick
14 sometime?
15 A Right.
16 Q Do you know what she told you?
17 A She wasn't feeling well, something to that
18 effect.
NOTE: MS. LEVENTHAL IS CONFIRMED AS CALLING IN SICK WHEN CRITICALLY ILL WITH AN ACUTE EXACERBATION OF MULTIPLE SCLEROSIS. IT IS HARDLY BELIEVABLE THAT MS. LEVENTHAL WOULD MERELY SAY THAT SHE WAS "NOT FEELING WELL." IN POINT OF FACT, SINCE CARYL LEVENTHAL HAD ACCUMULATED SICK PAY DUE HER, THERE SHOULD HAVE BEEN NO QUESTION OF HER RECEIVING IT. THIS WAS NEVER DONE AND SHE WAS MARKED AWOL EVEN THOUGH RULES WERE MET.
19 Q Did she say the cause of her not feeling
20 well?
21 A No.
22 Q Do you recall how many times she called
23 in sick?
24 A No.
25 Q Do you recall getting any letters from
1 Ms. Leventhal or her husband regarding her sickness?
2 A No.
3 Q Do you recall Mr. Leventhal ever calling
4 you on behalf of Ms. Leventhal?
5 A Yes.
6 Q Do you recall what was said in that
7 conversation?
8 A Not exactly.
NOTE: MS. STEWART HUNG UP ON MR. LEVENTHAL AS HE PLEADED FOR HER NOT TO YELL AT CARYL WHEN SHE CALLED IN SICK.
9 Q Do you recall what your reaction was to
10 his calling?
11 A To tell him that I need to speak to Ms.
12 Leventhal.
13 Q Do you recall Mr. Leventhal saying that
14 Ms. Leventhal was upset that you were screaming at
15 her?
16 A I don't recall the conversation.
17 Q Did you ever recall screaming at Ms.
18 Leventhal when she called in sick?
19 A No.
20 Q Or raising your voice in any way on the
21 phone?
22 A No.
23 MR. BRESSLER: Mark that.
24 (A postal receipt and letter dated June
25 12, 1996, is marked as Plaintiff's Exhibit 5
1 for identification, as of this date.)
2 Q Let me show you what's been marked as
3 Exhibit 5. This is a letter to Ms. Grant; is that
4 correct?
5 MR. FISHER: Objection. We don't know
6 whether the witness has seen this document
7 before today.
8 MR. BRESSLER: You are right. I'm sorry.
9 Q Have you ever seen this letter before?
10 A I don't think so.
NOTE: MS. STEWART WAS SENT A COPY OF THIS CERTIFIED LETTER. IT IS SO MARKED.
11 Q Have you ever seen it in the context of
12 your review prior to this deposition?
13 A No.
14 Q Around the time of this letter, which is
15 June 12, 1996, did you discuss Ms. Leventhal's
16 absence with Ms. Grant?
17 A I'm not sure. Probably.
18 Q Do you recall what was said in any of
19 those conversations?
20 A No.
21 Q Now, if Ms. Leventhal called Ms. Grant
22 that she is sick and she can't come in, would that be
23 in violation of regulations?
24 A If I was there, she should have been calling
25 me. If I was not present, she would call Ms. Grant.
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Stewart
1 Q Do you recall
in a conversation that you
2 had with Ms. Grant that this letter was ever
3 discussed?
4 A I don't remember at all.
5 MR. BRESSLER: Mark this.
6 (A postal receipt and a four-page letter
7 dated June 13, 1996, is marked as Plaintiff's
8 Exhibit 6 for identification, as of this s
9 date.)
10 Q Have you ever seen this letter before?
11 A I'm not really sure. I know I was sent a
12 package, a big fat package, when they filed, I think,
13 the first stage of something that it might have been
14 in.
15 Q You don't recall receiving this in June
16 1996?
17 A No.
18 Q In June 1996, did you have any
19 discussions
with anyone besides Brenda Grant about
20 Ms. Leventhal's absence?
21 A Not that I recall.
22 Q Like Mr. Brouillet?
23 A No.
24 Q Mr. Berriman?
25 A I don't think so. I'm not sure.
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Stewart
1 witness' attention to the sentence and ask if
2 she agrees or disagrees.
3 Q Getting down to a little halfway down, it
4 says, "On Tuesday, June 11th, 1996, I called Agatha
5 Stewart." That paragraph.
6 Would you say that is accurate or not
7 accurate, and if it's not accurate, why is it not
8 accurate?
9 A What about it?
10 Q Well, is this true?
11 A Is what true? What is that paragraph stating?
12 Q First, did you receive a call from Ms.
13 Leventhal on Tuesday, June 11th, 1996?
14 A I don't know.
15 Q Okay, we will move on to the next
16 paragraph. Did you shout at Ms. Leventhal?
17 A No.
18 Q Did you call her a liar?
19 A I don't remember.
NOTE: THIS IS ANOTHER LAWYER PLOY. DURING "PREPPING" OF A WITNESS PRIOR TO BEING DEPOSED, IT IS AGAINST LEGAL ETHICS TO TELL THEM TO LIE OR PUT WORDS INTO THEIR MOUTHS. TO GO AROUND THIS RULE, A LAWYER WILL FREQUENTLY SAY "REMEMBER, IT'S NOT A LIE TO SAY YOU DON'T REMEMBER OR DON'T RECALL." TO ANY WELL RAISED PERSON IN THE REAL WORLD, THIS WOULD BE A LIE. BUT TRUTH CAN BE ELUSIVE IN LEGAL MATTERS WITH ATTORNEYS.
20 Q Did you tell her she would be marked
21 AWOL?
22 A I don't remember.
23 Q Did you hang up the phone on her?
24 MR. FISHER: Objection as to form.
NOTE: AFTER MONTHS OF DISCOVERY, IT IS OBVIOUS EVEN TO THE US ATTORNEY THAT CARYL LEVENTHAL HAS BEEN TRUTHFUL AND THIS IS A VERY DIRTY CASE. AND YET, HE STILL USES "OBJECTION AS TO FORM" TO GET MS. STEWART TO RETHINK WORDS, RESPOND WITH "I DON'T RECALL" OR BE EVASIVE. IN THIS INSTANCE, MS. STEWART LAMELY ATTEMPTS EVASION BY BEING FLIPPANT.
25 A Yes, when I finished the conversation, yes,
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