Baffo V NYIT - Transcript June 11 and 12 2012

Case 2:10-cv-01245-LDW-ETB Document 72 Filed 08/02/12 Page 1 of 79 PagelD #: 1120
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTHONY BAFFO,
4 CV-10-1245
(LOW)
5 Plaintiff,
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6 -against-
United States Courthouse
Central Islip, New York
7 NEW YORK INSTITUTE OF TECHNOLOGY
ROBERT RIZZUTO, in his official
8 and individual capacities; and :
LEONARD AUBREY, in his official
9 And individual capacities,
June 12, 2012
10 Defendants. 9:40 a.m.
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TRANSCRIPT OF TRIAL
BEFORE THE HONORABLE LEONARD D. WEXLER
UNITED STATES DISTRICT COURT JUDGE, and a jury.
14 APPEARANCES:
For the Plaintiff:
For the Defendants:
Official Court Reporter:
Ph. (631) 712-6106
Fax (631) 712-6122
DOUGLAS H. WIGDOR, ESQ.
MICHAEL J. WILLEMIN, ESQ.
Thompson Wigdor
85 Fifth Avenue
New York, New York 10003
DOUGLAS P. CATALANO, ESQ.
NEIL G. SPARBER, ESQ.
SAMANTHA BELTRE, ESQ.
Fulbright & Jaworski
666 Fifth Avenue
Paul J. Lombardi, RMR, FCRR
100 Federal Plaza - Suite 1180
Central Islip, New York 11722
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Proceedings recorded by mechanical stenography.
Transcript produced by CAT.
Paul J. Lombardi. RMR. FCRR
Official Court Reporter
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Summation - Mr. Wigdor
(Trial resumes.)
THE COURT: We are bringing the jury in.
MR. WIGDOR: I think we are waiting for
4 Mr. Catalano.
5 THE COURT: Okay.
6 Be seated.
7 (Whereupon, there was a pause in the
8 proceedings.)
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THE COURT: Okay.
Bring in the jury.
(Jury enters the courtroom.)
THE COURT: Be seated. We will now have the
14 summations.
15 Remember what I said about openings, the same
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16 thing applies to summations. What the lawyers say is not
17 evidence. The evidence is the documents, the testimony of
18 witnesses and what you believe is the evidence and the
19 truth.
20 Plaintiff goes first. Defendant goes second and
21 plaintiff gets a short rebuttal. I put limits on them.
22 Like everything else, we move it along.
23 Plaintiff, you are first.
24 MR. WIGDOR: Your Honor, opposing counsel,
25 Mr. Lombardi, ladies and gentlemen of the jury.
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1 Since Mr. Catalano's opening statement, I have
2 been waiting a week to say three things.
3 First, Mr. Baffo is not a liar.
4 Second, the defendants did not bend over
5 backwards for Mr. Baffa.
6 Third, Mr. Rizzuto is not the victim in this
7 case. After trying to save someone who had just been hit
8 over the head with a bottle, and donating blood and
9 learning that he was HIV positive, and then confiding with
10 tears in his eyes in someone he thought was his friend and
11 ultimately been fired as a result, testified in this case
12 has shown that Mr. Baffo is the victim, the victim of
13 intentional discrimination, based upon his disability or
14 perceived disability. We have proven that Mr. Baffo's
15 disability and/or perceived disability was a motivating
16 factor that prompted the decision to fire him.
17 I want to thank you, the members of the jury,
18 for being attentive and for performing, on behalf of my
19 client, your civic duty as jurors. Let me say this, and I
20 don't say it lightly, Mr. Rizzuto is a liar, plain and
21 simple, and you have witnessed it firsthand. He can't be
22 trusted and his entire testimony cannot be trusted.
23 Defendants say that the reason that Mr. Baffo
24 was fired was to create two new jobs, mind you, one of the
25 jobs was never filled, the sales associate position. But,
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1 first, Mr. Rizzuto outright lies in his sworn affidavit.
2 You will recall that's Exhibit 138, and in that affidavit
3 he signs it on the last page, he swears to it, to the
4 contents, and in this case you heard him say that it was
5 important that this affidavit, which was done just weeks
6 after the termination, that this affidavit should be
7 accurate and complete, and he swore to tell the truth as
8 to that.
9 But what you will see in the first substantive
10 paragraph trying to justify the termination, paragraph
11 seven, he says that in fiscal 2008, I gave Anthony control
12 of the de Seversky Center budget, and the center suffered
13 a $600,000 loss in that year. This is a false statement,
14 and he was asked at his deposition to explain how did you
15 come up with the $600,000? He said he didn't know.
16 Then he got up on this witness stand, took an
17 oath to tell the truth, and came up with some convoluted
18 answer that somehow in Exhibit 45 that clearly shows that
19 the year that he was in charge of the budget, 2008, there
20 was $150,000 profit, he tries to subtract these two
21 numbers between 2008 and 2009 and says that's how I came
22 up with the figure? The math doesn't even add up. And
23 that's not what he said in his deposition.
24 In his opening, Mr. Catalano said with respect
25 to the $600,000, that was wrong. That was a mistake. He
493
1 misread the financials. He lied, and he tried to lie to
2 make it look like Mr. Baffa was not performing well. He
3 lied in this affidavit.
4 And that's why we admitted Exhibit 45. This
5 Exhibit wasn't in the affidavit. There is no mention of
6 this in his affidavit. We also admitted Exhibit 46,
7 Exhibit 46 shows the financials in September 2008, and
8 2009, and October 2008 versus 2009, and these show that
9 things were moving up, the business was getting better.
10 Now, that wasn't the only lie. You will recall
11 that Mr. Rizzuto testified in this trial that he told
12 Mr. Baffo to write a memo. That's what he said, again,
13 under oath. He testified Exhibit 38 that he told
14 Mr. Baffo to write this memo about cost saving measures.
15 That's what he said.
16 You will recall that I took out his deposition
17 testimony and read it; did you ask Mr. Baffo to create it?
18 No. Not that I recall. I then asked him whether that was
19 a truthful answer. He said no. He's an admitted liar.
20 But he's not the only person that's lying.
21 Let's look at Mr. Aubrey. On direct examination I asked
22 Mr. Aubrey the following questions at page 453 --
23 actually, this was Mr. Catalano, sorry. He says at page
24 453 on direct:
25 Question: Now, on that morning did there come a
494
1 time that Mr. Rizzuto came to your office and, if so,
2 about what time?
3 Answer: I would say it was about -- Mr. Rizzuto
4 came to my office sometime 8 to 8:30 in the morning, in
5 that range.
6 Question: When he walked in, what did he say to
7 you?
8 Answer: He said he had a surprised look on his
9 face.
10 And then it goes on to say that's when he
11 disclosed that he was HIV positive. But then you will
12 recall cross-examination, page 459, I took out the
13 deposition transcript of Mr. Aubrey, and I read it:
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Question: Do you recall what he told you?
Answer: Only that Anthony was HIV positive.
Question: And do you recall how he told you?
Answer: No.
Question: Was it a phone call?
Answer: I don't recall, exactly.
Question: Did he tell you in person?
Answer: Again, as I answered the question, I
22 don't recall exactly.
23 So here you have a person at his deposition who
24 doesn't recall how he was told, then he comes up on the
25 witness stand, not only does he recall how he was told, he
495
1 recalls that Mr. Rizzuto had a shocked look on his face.
2 So you have two people who are lying.
3 Defense counsel said to you in his opening that
4 he was going to prove to you that there are four people,
5 four people in August decided they were going to terminate
6 Mr. Baffa. It cannot be disputed in this case there was
7 never a decision made in August. There was no decision
8 made in August and the affidavit in this case makes no
9 mention of any discussion between these four people in
10 August either. Don't you think that would have been in
11 the affidavit?
12 The termination was not recommended and
13 ultimately approved until well after October 2nd, well
14 after Mr. Baffa had disclosed that he was HIV positive.
15 And you will see those exhibits. Plaintiff Exhibit 13,
16 that's dated October 16, 2008. By the way, this whole
17 thing about backdated, it is backdated. It's dated 2008.
18 It's supposed to be 2009.
19 But this memo says it's a request. I would like
20 to move forward. It's a request. Exhibit 81, my
21 recommendation is to eliminate. This is October 20th.
22 Exhibit 78, October 20th. I recommend the following.
23 These are all after, after Mr. Baffa has disclosed that he
24 was HIV positive.
25 As for Ms. Visconti's testimony, you have
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1 someone who owes their entire career to Mr. Rizzuto, from
2 waitress to director, and then testifies when I questioned
3 her that she didn't even help Mr. Rizzuto with respect to
4 the termination. I had to break out Exhibit 102 and
5 Exhibit EI. She was clearly involved in the termination.
6 As for Mr. Redlich, did you see his body
7 language? He didn't want to be here. He had to come in
8 and support his boss, the boss who gave him a $7,000
9 raise. He wouldn't budge on that one. He thought it was
10 5 or 6, I had to show it was $7,000. That was a lot of
11 money. That was a 12 percent raise, folks, in the year
12 that they fired Mr. Baffo.
13 Then I have to pull out of him that he had a
14 friend, he reached out to a friend who wanted the job, and
15 what does he do? This is well after October 2nd, after
16 the decision apparently had been made, and he forwards
17 that resume to Mr. Baffo. All of this is classic pretext.
18 You have witnessed the inconsistencies in the defendant's
19 case, the inconsistencies and the falsehoods in their
20 testimony and their failure to tell the truth.
21 Mr. Rizzuto admits he had a script when he fired
22 his former friend and it is clear that there is a script
23 here to try to justify the terminations. Fortunately, you
24 are the finders of fact and you are not wed to that
25 script.
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1 And this is not surprising. There was no
2 training of any type of discrimination at this place, or
3 Mr. Rizzuto, no disability discrimination, no type of
4 training, no policy, nothing.
5 So what this case all really comes down to,
6 folks, is it more likely than not that Mr. Baffo told
7 Mr. Rizzuto on October 1st that he had received a call
8 from a doctor that he wanted to see regarding some tests?
9 Is it more likely than not that Mr. Baffo called
10 Mr. Rizzuto and left a voice mail saying he got some
11 disturbing news?
12 By the way, Mr. Rizzuto was never even asked by
13 his own lawyer whether that happened or not. Is it more
14 likely than not on October 2nd that Mr. Baffo told
15 Mr. Rizzuto that he was HIV positive? I would ask you to
16 use your common sense and to listen for the ring of truth.
17 This is someone whom he considered to be a friend, someone
18 whom he shared personal things with and Mr. Rizzuto shared
19 personal things with.
20 And now comes what I believe to be the two most
21 important pieces of evidence that prove by a preponderance
22 of the evidence that Mr. Baffo did disclose that he was
23 HIV positive on October 2nd, and I think you know what I'm
24 talking about. At page 397 of the trial transcript I was
25 cross-examining Mr. Rizzuto, you will recall:
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1 Question: Did you look for a memo that you said
2 you wrote -- strike that.
3 Page 397:
4 Question: Isn't it your testimony that on
5 October 23rd that was supposed to be the day that
6 Mr. Baffa was going to be fired, right?
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Answer: Correct.
Question: Yet, isn't it your testimony that
9 when Mr. Baffa told you he was HIV positive you told him
10 to take off as much time as he needed?
11 Answer: I think my words were close to it, was
12 take the time that you need to take care of yourself.
13 And then I had to get it out of him:
14 Question: Didn't you tell him that if he needed
15 time off or whatever he needed to do?
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Answer: I believe I did.
Question: So you told Mr. Baffa on the day you
18 were going to terminate him that he should take needed
19 time off.
20 Answer: I did.
21 This was on the day of the termination, and he's
22 telling Mr. Baffo to take needed time off, to take time
23 off. The only way that makes sense is if it happened on
24 October 2nd, and Mr. Baffa -- Mr. Rizzuto admits that at
25 page 349 when he met with Mr. Baffo on October 23rd that
Case 2:10-cv-01245-LDW-ETB Document 72 Filed 08/02/12 Page 11of79 PagelD #: 1130
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1 what was in his mind was that he was going to be
2 terminated a half hour later.
3 So the only way that makes sense is if that
4 conversation took place on October 2nd. And the other
5 piece of evidence that I believe is so important in this
6 case is Exhibit 125. Exhibit 125 is an e-mail from
7 Mr. Rizzuto to Maureen Gaughran, the HR person, copying
8 Mr. Baffa dated September 29th, just a couple of days
9 before Mr. Baffo says he's HIV positive.
10 According to Mr. Rizzuto the decision's already
11 been made to terminate him, but this is what he does, he
12 says, I wanted to ask if you can put out ads for the
13 dining room captain and the sales assistant. It has been
14 approved by president this week. Anthony's going on
15 vacation next week so you can forward to me. Anthony will
16 send you all the information.
17 So they want to say there's this reorganization
18 going on, the decision's already been made to terminate
19 Mr. Baffa, yet here you have an e-mail from Mr. Rizzuto to
20 HR talking about sending out resumes, and sending out job
21 descriptions about these jobs. HR's in the dark on this
22 reorganization? That makes absolutely no sense.
23 HR then replies to the e-mail saying that,
24 please confirm the dates that Anthony's going to be on
25 vacation so I can send you the postings during his absence
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1 and resume sending those to him when he returns. No
2 decision had been made as of September 29. This document
3 demonstrates that beyond any doubt.
4 Some of the defendants' arguments. They tried
5 to draw into question how Mr. Baffo contracted HIV. That
6 is downright offensive. There is no evidence in the
7 record to support any other contention in this case other
8 than the fact that Mr. Baffo contracted HIV when he came
9 to the aid of someone on the Circle Line. Hopefully they
10 will abandon that argument in their closing.
11 Performance? Come on. We saw many documents
12 after October 2nd that tried to purport to justify the
13 termination, the memos to HR, the memo to Len Aubrey, not
14 one of them, none of them mention anything to do with
15 Mr. Baffo's performance. That is a complete red herring.
16 Exhibit DJ, that's the September 1, 2009 memo,
17 not mentioned anywhere in Mr. Rizzuto's affidavit. So DJ
18 is that memo that he sent to Mr. Aubrey in code, okay, in
19 code. It doesn't mention Mr. Baffo. It doesn't mention
20 the general manager position.
21 Do you think for a second if it was what they
22 say it was, wouldn't it have been in Mr. Rizzuto's
23 affidavit that was filed in connection with the charged
24 discrimination just a few weeks later? Of course it
25 would. It's not what they say it is.
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1 And Mr. Catalano said and the reason why it was
2 written in code was because somebody might see it on the
3 computer, and so therefore he said that he's sitting next
4 to him. Suppose he leaves the computer to answer the
5 phone or runs out to answer a phone? Of course it doesn't
6 say it, he said. The problem with that is there is no
7 evidence in the case about that. He never even asked his
8 client about that.
9 So there's no evidence, and it makes no sense
10 because then we see the other memos, Exhibit 13, 81, 78,
11 they all mention Mr. Baffa, after October 2nd, of course,
12 but they all mention Mr. Baffa by name and the general
13 manager position and the request to eliminate that
14 position. So it makes no sense at all.
15 The other change is simply the addition of the
16 other position, the captain position which you will see in
17 Exhibit 63, September 3rd, 2009, and that's what it is.
18 Then, of course, we have all of these exhibits, 66, 67,
19 62, 63, they all talk about this new position's reporting
20 to Mr. Baffa, the job descriptions, the memo, the thing
21 they posted on Monster.Com as of September 22nd. So they
22 all show it reporting to Mr. Baffa. That makes no sense.
23 As for Exhibit CI, that's the e-mail that
24 Mr. Rizzuto sent to Ms. Jablonsky saying, oh, suddenly on
25 the 23rd Mr. Baffa came in and said he's HIV positive,
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1 that is -- I said it in my opening, I'll say it again
2 that is a CYA, we all know what that is, a CYA e-mail. He
3 knew there was the possibility he would spring this on
4 him, he was trying to CYA.
5 As for the contention in his opening
6 Mr. Catalano says the basis for Mr. Baffa disclosing not
7 on October 2nd, but October 23rd was this thing in Exhibit
8 44, the medical records which says I'd like to tell people
9 other than my family and friends about my HIV, other than
10 my family, other, that's the key, and he considered
11 Mr. Rizzuto a friend.
12 As for the increased severance, where's the
13 policy regarding asking everybody for a waiver? You will
14 see in Rizzuto's affidavit at paragraph 15, he tries to
15 take credit for the increased severance, yet another lie,
16 nothing to do with anything other than that Mr. Baffo
17 wouldn't waive his rights to get health care and
18 severance. He is a man of integrity and character. He
19 rejected the severance offer because he wanted his day in
20 court.
21 Now, I told you in my opening that there was no
22 smoking gun e-mail in this case. There is no e-mail that
23 says, yeah, we fired him because he's HIV positive.
24 That's not how you prove cases like this.
25 What we have proven are the lies, the
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1 inconsistencies and the denial of the fact that he
2 disclosed he was HIV positive on October 2nd. We have
3 proven by a preponderance of the evidence that Mr. Baffo's
5 factor that prompted the decision. All we are required to
6 do is to prove that his disability or perceived disability
7 was a motivating factor that moved them towards the
8 decision to terminate him, more likely than not. It's not
9 beyond a reasonable doubt. This isn't a criminal trial.
10 Just tip the scales ever so slightly in Mr. Baffo's favor.
11 Now, I have discussed liability and I realize
12 I'm going fast, but I have a time limit. I'd like to talk
13 to you about damages.
14 Economic damages are for the judge to decide.
15 That's not in your purview. Compensatory damages,
16 emotional distress and harm to him. You heard
17 uncontroverted testimony that the de Seversky Center was
18 Mr. Baffo's dream job. He had worked hard to become the
19 general manager. The place where he had worked with his
20 wife, his alma mater, a place where he fell in love with
21 his wife and rented it to have a private anniversary
22 dinner.
23 That was all stripped away from him when the
24 defendants unlawfully fired him. As a result, and you
25 will see this in the medical records, Exhibit 44,
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1 Mr. Baffo has been and continues to suffer from
2 depression, anxiety, feelings of failure, and fatigue. He
3 also told you about the shock, the feelings of failure to
4 himself, his family, his three children, and his feeling
5 of being worthless.
6 Now, an assistant store manager at Applebee's,
7 and while the defendants will try and say that the HIV is
8 to blame, you heard the testimony. Anthony and his wife
9 Laura, through the help of their faith and their family,
10 had come to grips with that.
11 The loss of his job, though, he could not cope
12 with. Even telling his wife maybe it would be better if I
13 wasn't around. That's one thing that Mr. Baffa did get
14 wrong. We would not be better off if he wasn't around.
15 As Father's Day approaches this weekend, Mr. Baffo's wife
16 and three young children would not be better off.
17 He should be considered a role model to them.
18 He is what we strive to be, a hardworking, dedicated,
19 honest human being who is sitting at that table because he
20 jumped to the aid of a woman who was bleeding, and now has
21 the courage to stand up for what is right.
22 Even when it looked as though everything had
23 gone horribly wrong, as the head of his household, he did
24 what was very difficult, he went out and got a job to
25 provide for his family. We'll never be able to undue what
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1 happened to him. Mr. Baffo will continue to live with the
2 emotional scars for the remainder of his life. You have
3 to look into your heart to determine what is right, the
4 right amount of money to award Mr. Baffo for the emotional
5 damage he suffered.
6 How do you tell a person how much their
7 self-respect is worth?
8 THE COURT: You have five minutes left in your
9 first summation.
10 MR. WIGDOR: Thank you.
11 What is a fair verdict for having put Mr. Baffo
12 through this?
13 This is a very serious injury, and deserving of
14 a very large award. The defendants stripped Mr. Baffo of
15 his self-esteem and made him feel like nothing. We are
16 not appealing to your emotions but intelligence and sense
17 of fundamental fairness.
18 How do you send a message to the defendants?
19 Every day when I would take a break I would walk the
20 hallways and look across out the windows, look across out
21 to the Atlantic and the Robert Moses bridge and think
22 about how can we send a message to make sure that other
23 employers don't do what they did to Mr. Baffo. How can we
24 punish them for what they did to Mr. Baffa?
25 You, the gentlemen of the jury, have the power
Summation - Mr. Catalano
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1 to send that message, the power to make change, and the
2 power to make sure that what happened to Mr. Baffo doesn't
3 happen to anyone else. $220 million in revenues, that was
4 what the testimony was in one year, that is a lot of
5 money, folks.
6 While you have sat silently for the last week,
7 and you have listened to the witnesses, the lawyers, and
8 the judge, you folks will have the last word. On behalf
9 of Mr. Baffa, I would request that your last word be a
10 verdict in his favor, an award of $3 million in
11 compensatory damages, and an award of $8 million in
12 punitive damages.
13 That $8 million may seem like a lot of money,
14 but that's less than 4 percent of their annual revenues in
15 one year. In order to send a message, in order for them
16 to be punished, I respectfully submit that is the only
17 amount that would do that. Is that even enough? I don't
18 know. I'll leave that to you. But, gentlemen of the
19 jury, your voice must be heard.
20 Thank you.
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THE COURT: Defendant.
MR. CATALANO: I told you in my opening that
23 there were absolutely no facts to indicate, infer or prove
24 that Mr. Baffa was terminated by NYIT by virtue of his
25 having discovered he had HIV on October 1.
507
1 You sat here for four days and you just heard
2 the summation, and I still haven't heard one fact. There
3 are none, because it didn't happen. There are no facts
4 whatsoever to even suggest that he was terminated because
5 he has HIV, let alone prove it by a fair preponderance of
6 the evidence.
7 I asked you to hold me to it what I said in my
8 opening, and here we are in summation, and I revert to
9 that original statement. What are the facts? There are
10 none.
11 What are facts? Rizzuto told Baffo, you know, I
12 can't have you around here with HIV. Never happened.
13 Somebody overheard Rizzuto, Rizzuto told someone else,
14 there was a conspiracy at sometime. None of that ever
15 surfaced because it's not true.
16 Not only do I ask you to look at the facts, look
17 at the testimony, take whatever you want into the jury
18 deliberation room, but I ask you to look at also the
19 inferences because this is important in most cases and
20 particularly in this one, look at the inferences to be
21 garnered from how people act, and that will prove the
22 point.
23 Essentially what Mr. Baffo is saying is, and he
24 doesn't dispute his poor performance, late -- well, isn't
25 everybody late? Did he speak to me, sitting next to me
508
1 repeatedly? Why is if Rizzuto is making up a story, why
2 is Rizzuto continuously and you will see the documents,
3 giving him memos?
4 Why, because he won't do the job. Why is he
5 telling Pilar Visconti in the summer, and she says to him,
6 well, you know, you are doing the job. So there it is.
7 He can't continue here, or whatever the words are.
8 Counsel is very good at massaging what people
9 say, and then throwing the word out lie. I'll show you
10 some lies in this case, but let's talk about the boat
11 incident. This one is stunning.
12 He learns on October 1 that he has HIV. His
13 wife has to get tested so he has to come home and tell her
14 how he got HIV. You have to go for the test. So what
15 does he come up with? A boat ride four years ago.
16 Who's the person? Where was the specialist, the
17 EMT trained person on the boat who took over? And perhaps
18 he was to the aid of the woman. How did the blood get in
19 his system three years ago? We'll get to three years ago,
20 two years ago, one year ago. How did it get in his
21 system? Why did it show up in October of '09? He made it
22 up, and counsel knew it was coming.
23 How about the trick that counsel attempted to
24 play on you, when he asked Pilar Visconti, did you talk to
25 the lawyer before you came in here today? Of course she
509
1 did, me. I spoke to her. What did I do, bring her in
2 here and get her up on the stand and say, you know
3 anything about this case? Absurd.
4 Of course lawyers talk to their witnesses
5 beforehand, and you will narrow what is going to be
6 explored with them and you tell them, tell the truth, and
7 that's what happened here. That was a trick to be played
8 on you, because he was hoping Visconti will say, well,
9 gee, was I supposed to talk to the lawyer before I got in
10 here today?
11 You learned in this trial three uncontroverted,
12 uncontradicted facts. You learned he got HIV on October
13 1. You learned that he performed poorly. Did you hear
14 anybody say he was performing well? You heard three
15 persons, his friends come in and say they liked him. They
16 thought it was a good manager.
17 Did you here Baffo say he was performing
18 exceptionally or well? How could you look at the
19 financials and come up with any other conclusion other
20 than Rizzuto should have terminated his services but for
21 the fact that he bent over backwards, that's the term,
22 bent over backwards for Baffo. He should have terminated
23 him a along time ago.
24 As Aubrey said, he didn't want to go use
25 students' hard-earned tuition or the parents' money to be
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1 paying for the de Seversky Center. That was an important
2 feature in this case.
3 What Baffo is actually saying is I learned I had
4 HIV. He says he told Rizzuto on October 2, of course he
5 didn't and I'll show that to you in the documents, and you
6 can't fire me, and if you do, give me $11 million. Was
7 that what I just heard? 8 plus 3 or was it 8 plus 4?
8 I don't do the job. I have HIV pursuant to
9 cockamamie story and you are asking of the parents and the
10 students $12 million of the students' money because I
11 didn't do the job. That's what he's asking you and doing
12 tricks, did you talk to the lawyer before you came in here
13 today.
14 The judge will give you instructions. I know
15 you will apply the instructions to what you heard today.
16 Let's talk about how he learned that he had HIV.
17 Think about that. Who was this person? How did the blood
18 get in his system? Why does it show up three years ago?
19 Let's talk and I'll ask Ms. Beltre to show you documents.
20 He says that Evanov, he goes to Evanov -- that's
21 my circling, your Honor -- and you will see in the circle
22 there and I'm doing that for the convenience of the jury,
23 this is October 2, the day after he learns and it says one
24 year ago is circled, that's my handwriting. That's
25 October 2 he learns on October 1.
511
1 But on October 1 he told Del Valle it was two
2 years ago, and that's PL 136. So he goes on October 1.
3 He tells Del Valle it was two years ago in the summer of
4 '07, right there I underlined it in the middle, two years
5 ago, that's my handwriting, October 1 he goes into
6 Del Valle, he has to tell him some story because he has to
7 tell his wife I have HIV. Why? Because you have to go
8 get tested.
9 So he comes up with the boat story. When was
10 the boat story? He says two years ago on October 1. What
11 does he say in the transcript? He gets home and he
12 realizes that's a mistake. It wasn't two years ago.
13 Why? Because his wife reminded him, Mrs. Baffa
14 reminded him it was three years ago. That's in the
15 transcript 141
1
lines 20 to 24. Now he's all set. He's
16 reminded it was three years ago, right? The night of
17 October 1 when he learns he has HIV and that's where he
18 says it down here.
19 When I came home, I was talking to my wife about
20 it, she said, no. That was in 2006. Okay. Two years ago
21 to Del Valle in the afternoon, comes home, now it's three
22 years ago, and he goes to see Evanov the next day after
23 learning from his wife it's three years ago and what does
24 he tell Evanov? It's one year ago. You just saw it
25 October 2. Put that back up there if you don't mind.
1 He doesn't know what to say because he's
2 flummoxed because he has to tell his wife something.
3 There it is. That's the next day. Two years, my wife
4 reminds me it's three years ago, next day it's one year
5 ago. He's making it up. And he's going to ask you for
6 $11 or $12 million, whatever the number was, because he
7 doesn't do his job.
8 How about the trauma, trauma. He had more
512
9 trauma losing his job at de Seversky Center than obtaining
10 the HIV virus. I talk about inferences. What inference
11 do you garner from that? Is that anywhere near plausible?
12 That's nutty.
13 How can you possibly say that? He's going to
14 specialists, therapists, support groups, because he got
15 dismissed from NYIT? No. Because he had the HIV virus,
16 and I must say, as a human being, I'm happy that he's able
17 to do his work and perform at Applebee's.
18 Now, his dream job at de Seversky Center, let's
19 talk about that. He left the de Seversky Center. Who
20 brought him back? Rizzuto brought him back. Where did he
21 work after he left de Seversky Center voluntarily in the
22 '90s?
23 He went to the Marriott, Restaurant Associates,
24 St. Francis, Paparazzi. He's working all over the place.
25 What about the dream job at NYIT? Why did he leave? He
513
1 has to come up with something so you can give him some
2 sort of money.
3 Backdating. Let's talk about the backdating.
4 He fell into the trap when he argued backdating.
5 Put up the October 16th document first, please.
6 Okay. Backdated. Counsel says this was
7 backdated and it's a typo it says '08. Ridiculous. It
8 says approval to eliminate the general manager's position.
9 What did Aubrey say? He says, we had to get the two
10 recruitment authorizations in place.
11 Rizzuto was out as he said in Central Islip,
12 here, excuse me, and because they are closing down the
13 facilities in Central Islip as far as dining and that's
14 why it couldn't take place until later and you will see
15 the September 1 memo. My words, the smoking memo that
16 proves it all. I don't know why I have to even refer to
17 that memo.
18 You had four people come in and say we all
19 discussed this and August -- said it was agreed upon in
20 August of 2009. What possible reason would Pilar
21 Visconti, she owes her whole professional life to Robert
22 Rizzuto. That means nobody can testify in any case
23 because they owe something to somebody. Come on.
24 Redlich, he didn't know, and neither did
25 Visconti know that he had HIV until after the fact that he
514
1 was terminated. When was this conspiracy entered into to
2 ask them to lie? Who would be goofy enough or stupid
3 enough to get four people together and then say we are
4 going to make this up?
5 That's what would have had to have happened if
6 that's to be believed. You can't make that story up. We
7 are going to fire him. We are going to make believe there
8 was a reorganization and put out backdated memos.
9 If I recall jury selection certain of you have
10 computer backgrounds. He walks in here, you can't walk in
11 the federal court and say I believe it was backdated.
12 Okay. Where's your expert who can look at the metadata to
13 prove that it was backdated? You see anybody in here?
14 You deserve better. The court deserves better.
15 I said Rizzuto and NYIT deserved better. You all deserved
16 better to have somebody walk in here and spend a week of
17 our time saying I have HIV, give me $12 million and I'm
18 going to say anything about anything and hope that it
19 sticks.
20 You can't walk in without facts. What are the
21 facts that indicate that he was terminated because he has
22 HIV? If you take the argument to its logical extension,
23 whether Rizzuto learned on October 2 or October 23 becomes
24 irrelevant because what he's saying is you can't ever fire
25 me thereafter because it must be because I have HIV.
515
1 That's what he's saying to you. I can never be fired. I
2 was fired. Give me $12 million.
3 Of course you can be fired. How does he know it
4 wasn't because he's Italian American, 39 years old, wears
5 a goatee, happens to be Caucasian? How does he know those
6 aren't the factors? Because he realized if you say HIV,
7 bingo, here we go. What are the facts that indicate he
8 was terminated because he has HIV? How does he know it
9 wasn't because of, which is the truth, his horrible
10 performance?
11 Why would Rizzuto fire him? He's got a woman
12 out -- excuse me again -- he's got a woman here who
13 happens to be deaf as a supervisor. He's got somebody
14 with herpes. He, himself, his son has multiple sclerosis,
15 who's the victim here? You bet it's Rizzuto.
16 He's a hardworking guy? Levittown where I grew
17 up, we called him a hardworking stiff. He makes good of
18 himself. Now he's the head of all the dining services
19 through the NYIT, Central Islip, Old Westbury and New York
20 City, running from pillar to post, he bends over backwards
21 for Baffo and he's told by Baffo, give me $12 million
22 because I got fired. He's saying I can never get fired,
23 no matter what I do, no matter how many memos.
24 You ever hear the supervisor sitting next to him
25 six, seven, eight memos in writing? Is that possible? He
516
1 admitted it. Anthony, what can I do to help you? Lying.
2 Rizzuto says that was a smoking gun. What he meant was it
3 was smoke and mirrors by Baffo to try to say that somebody
4 had complimented him. Sure, you can have a $50,000
5 wedding and spend $122,000 in costs to put on the wedding.
6 What's that got to do with it? That's what he told you.
7 This is unbelievable. The backdating I told
8 you, he says this is backdated. Now, I'm going to tell
9 you why he actually showed his -- pardon me -- lying hand.
10 He gets terminated on October 26th. So assume we are in
11 November 15th, and you are going to backdate the memo.
12 Now, he knows in his mind he told Rizzuto on
13 October 23, right, so he's over here. He knows he told
14 Rizzuto on October 23. So he says, okay. They put this
15 October 16th memo and backdated it to be in advance of the
16 date I told him. So I have to argue that the backdating
17 took place from November 1 to October 16th because I told
18 him, Rizzuto, on October 23.
19 Well, if you really told him on October 2 what
20 he would have had said was they backdated it to August
21 30th, July 15th. He betrayed himself. He betrayed the
22 fact that he's lying to you. Look at the timeline. Let's
23 talk about the timeline.
24 Here's what happens in this case. Pardon me if
25 it's a little obscure. He's hired in the left side in
517
1 '06. He's getting unsatisfactory annual performance
2 evaluations, '07-'08. He's getting another one in
3 September 1 -- September 19, 2009, and the four people
4 come in in August of 2009 and tell you, accurately, that
5 this was all discussed.
6 He attempts to use the recruitment
7 authorizations as a sword rather than a shield. But it
8 makes sense. He's not going to terminate Baffo and the
9 September 1 memo will come up in a second, until October 1
10
11
12
13
14
and it takes time to hire people. You are not going to
lay off Baff o and now Redlich is going to use his services
and now you don't have a salesperson. So you have to get
the salesperson geared up.
So that's why you had a dining room
15 authorization and a sales position being solicited and of
16 course you are not going to say report -- whom are you
17 going to say report to? Baffo's still employed until
18 October 23. What are you going to do, say report to
19 Redlich who will soon be replacing Baffa? That all makes
20 sense.
21 Okay. Backdated. I said to him, page 201,
22 lines 20, 22, backdated he's talking about the
23 inconsistencies of Rizzuto? He says, why didn't you put
24 this in an affidavit, two-page affidavit? We are here
25 four days going over facts. How many hundreds of pages of
518
1 trial transcript are there? You are going to put it all
2 in an affidavit? That's more smoke and mirrors to try and
3 trick you. He doesn't put it in there.
4 Here. You have any facts to indicate this was
5 backdated? No. That means he commenced this lawsuit,
6 came in and told you it was backdated and he has
7 absolutely no support.
8 The courts and you and Rizzuto and NYIT deserve
9 better. You can't walk into the federal court with
10 nothing to say and hope that you give him $12 million, or
11 is it $11?
12 October 2 or 22 -- put up DJ, please. He says
13 this doesn't refer to Baffa. Of course it does. It says,
14 this is part of the reorganization, give Eric more support
15 in the area of sales as he gets repositioned.
16 Repositioned to what? He's going to take over a portion
17 of Baffo's job. This is September 1.
18 Backdated? There are no facts to indicate.
19 Where's your metadata expert to come in and show this was
20 backdated and not written on September 1? There it is in
21 a nutshell and it confirms what all those four witnesses
22 said. He wasn't doing the job. They get together.
23 Rizzuto is bending over backwards for two years, two
24 unsatisfactory performance evaluations, numerous
25 documents, and here it is.
519
1 And my goal is to bring in and make the change
2 we spoke of October 1, reorganization of the management
3 staff. What reorganization took place other than Baffo
4 being terminated and Redlich taking over his duties? Here
5 it is in a nutshell.
6 And, the last paragraph is, we are going to do
7 these two dining room position and the sales associate,
8 yes. They didn't hire a sales associate because Redlich
9 says, I can do it. It's not going to suffer so much. So
10 we saved some money.
11 But on the other hand, the last paragraph shows
12 that money he was earning, the $76,000, $79,000, whatever
13 the testimony is going to be used to replace this and he's
14 working at Applebee's. You are going to give him $11
15 million because he's able to work at Applebee's?
16 There's nothing I don't think with this
17 gentleman other than regrettably he has HIV and I'm
18 sympathetic to it. October 2, October 23, it doesn't
19 matter, but frankly it was October 23 that he told him.
20 Now, if you wouldn't mind, put up
21 Plaintiff Exhibit 12.
22 Allegedly he walks in there on October 2 and he
23 tells Rizzuto, oh, I have HIV. Now, this is his friend.
24 Now, here at 5 o'clock, Rizzuto, not surprisingly, is
25 telling him, where are you going? You didn't finish the
520
1 job and you are going to Italy?
2 You think he would have said that if he had just
3 been told and his testimony is he said take it easy, do
4 whatever you have to do. He didn't hear anything on
5 October 2 from him. All he knew as usual he was going
6 away, not doing the job and he writes to him at 5:09
7 saying, what? You are not coming back? Would anybody
8 provide that kind of response after being informed he had
9 HIV? Of course not. He didn't hear it on October 2.
10 Look at what happens on October 23 -- it's CI,
11 pl ease.
12 Here's Carol Jablonsky just joined. She knows
13 there is going to be a termination on October 23, and then
14 he learns that early in the morning at 8 o'clock, 8:30,
15 whenever it was that Baffa comes in, he tells him. Now
16 what does he do? He calls her and she says, tell me what
17 this is all about, and there it is, October 23.
18 Why, if he knew on October 2, would he possibly
19 send this e-mail? It would be impossible. He learned on
20 October 23, and he tells human resources and Carol just
21 got there, a week ago. That's what that memo says. He
22 wasn't feeling well. He came in today and said he had HIV
23 and needed to start treatment.
24 Was this part of the conspiracy? Did the four
25 of them get Carol Jablonsky who just joined and say I am
521
1 going to make up a story and I'm going to send an e-mail
2 even though I learned on October 2nd, I'm going to send
3 you an e-mail? Of course not. This is when it happened,
4 on October 23.
5 If that's not sufficient he writes to Redlich,
6 AH, he says the thing I spoke to you about is not
7 happening right away, or today at all. Redlich knew he
8 was going to be terminated. Why? He's going to take over
9 the position.
10 He knew it was going to happen that day and he
11 writes and he just said, he didn't tell him that he had
12 HIV. He said it's not going to happen today, because he
13 walked in. He says I have HIV, and they have to regroup.
14 What are they going to do?
15 I'll tell you what they did, and this is further
16 proof this happened on October 23.
17 Plaintiff Exhibit 49, the first page.
18 Here's what they did, here it is on Monday, what
19 did they do? They ripped up the $6,663 and the health
20 care they were going to pay for him through March 31, and
21 because he had HIV, not only did they not hurt him, or
22 take things away from him, or fire him, they gave him
23 another $14,000, and they gave him health care, no small
24 item, until August 31, 2010.
25 That's what they gave him on Monday, and it's
522
1 stipulated they were going to give him $6,600, plus health
2 care until March 31st and now they change it and now they
3 give him $20,000 and health care until August 31. Why?
4 Because 180 degrees different than what he's telling you
5 they felt sorry for him, or humanitarian gesture, whatever
6 words you want, they had no problem with Baffo as a human
7 being. They liked him.
8 So they said, oh, my. You know, we'll give him
9 more money, and there it is. Those three -- two e-mails
10 and that fact prove that this occurred on October 23.
11 What's the other proof by plaintiff?
12 Backdating, oops. I can't prove that. He said so. Hand
13 sanitizers, yeah, I argued there were hand sanitizers
14 because I found them when I got back from Italy. Hand
15 sanitizers were all throughout the university. He knew
16 it.
17 What did he say to me? All right, I'll give you
18 that one. You see that? You see how flippant that
19 response was. I'll throw four, five, six, seven concepts
20 out there and see if anything sticks with the jury.
21 That's insulting to you more so than to me.
22 A conspiracy. When were the discussions? Who
23 was involved? What was said? Why October 26th? Why did
24 they go through? Was it part of the formulation to come
25 up with all of this documentation on October 23? That was
1 part of the plan?
2
3
THE COURT: You have five minutes left.
MR. CATALANO: The documents, you saw the
4 financials, the financials are startling.
5 For the year 2007-2008, there was $150,000
6 profit and, yes, a gigantic loss when put down at the
7 bottom, and 8-9, it was $667,000, okay. Rizzuto made a
8 mistake. Big deal. Does that prove that he performed
523
9 well, that he was terminated because of the HIV? He came
10 in here and he intentionally lied to you, made up stuff.
11 FJ is the -- I showed you FJ, pardon me.
12 The three witnesses, nice people. What did they
13 say? We liked him as a boss. Your friend? Yeah. Okay.
14 Fine. Rizzuto said, frankly, and we are delighted he had
15 friends, and Rizzuto said that was probably one of the
16 issues, not with respect to those three people. But he
17 didn't direct the workforce.
18 Who's Rizzuto? Rizzuto is a hardworking man who
19 employs people of all ages, races, colors, creeds,
20 national origins, disabilities or not, who suffered his
21 own life challenges, who is a friend of Baffa.
22 Who's Baffo? Someone who conceded he's late.
23 Everyone's late. Someone who admits that Robert tried to
24 better his performance. Someone who said, maybe I don't
25 want to be great.
524
1 Here's Robert saying, how about this book, Good
2 to Great and he said it was a tough read. That just shows
3 you Rizzuto. He's a hardworking guy. A tough read, so he
4 gives it to him. Redlich says, yeah, he's giving books
5 all the time. What did Baffo say? Maybe I don't want to
6 be great.
7 Here it is in final, Judge, and I'm done. 253.
8 I asked him, do you have any facts to indicate whatsoever
9 that you were discriminated against, this is lines 23 to
10 25, down at the bottom, and to the next page:
11 So in summation is it fair to say you have no
12 facts, and then it goes on and lines 9 through 14:
13 The fabrication of all those documents and
14 e-mail that occurred after I told Robert, and he had to
15 scurry to cover the fact that he no longer wanted to work
16 with me because I was HIV positive. Those are the facts.
17 Some of those documents that are up there.
18 He says his whole case is backdated. That's
19 what he said. What did he say about backdating? Take a
20 look at 201, lines 20 to 22 with respect to the most
21 important document, one of the two, October 16th. He says
22 fabrication of documents is his case.
23 Now, I asked him, do you have any facts to
24 indicate that the October 16th memo is not backdated? No.
25 No. So he came in here, made up a story, made up a story
Rebuttal Summation - Mr. Wigdor
525
1 how he got the HIV. There is no fact. He was not
2 terminated. He was terminated because of the
3 reorganization stemming from his poor performance.
4 There was eight times the profit in 9-10 on
5 Exhibit FU, $1 .2 million, versus the time that he was in
6 charge of the expenses and revenue $150,000. That's
7 $1 million difference, eight times the profit that doesn't
8 have to come out of the hardworking parents, or can be
9 scholarships to students at NYIT.
10 This case is nonsensical. I am quite sure that
11 you will review the facts and listen to the judge's
12 testimony and all I excuse me -- instructions -- and
13 what I can tell you is that I have said repeatedly, there
14 is nothing in this case other than his hope that you give
15 him big money because he didn't do the job.
16
17 Honor?
18
19
20
21
22
MR. WIGDOR: Can we turn on the lights, your
THE COURT: Yes.
MR. WIGDOR: Thank you.
May I proceed?
THE COURT: Go ahead.
MR. WIGDOR: I guess we are not going to hear
23 why Mr. Rizzuto lied in his affidavit.
24 I guess we are not going to hear why he lied in
25 his deposition about telling Mr. Baffa to write the memo
526
1 that ends up saving the money. I guess we are not going
2 to hear about why Mr. Aubrey lied under oath in his
3 deposition when he said he didn't recall and then he comes
4 into court and then says, now I recall the shock on his
5 face on October 23rd.
6 You know, we have heard that there are no facts
7 to support this case. We have heard that many, many times
8 from defense counsel. He knows better. There are -- the
9 way he would have it, folks, is that in order to prove a
10 case, Mr. Rizzuto would have to get on the stand and admit
11 it, and say, yes. I discriminated against him, or, yes, I
12 considered the HIV, or there has to be an e-mail that says
13 that.
14 That's now how these cases work. The facts have
15 been clear in this case. There have been inconsistencies.
16 There have been lies under oath. Their positions don't
17 make sense because, again, just go back and read that
18 affidavit which was a couple weeks after the termination.
19 There's nothing about these purported -- the purported
20 agreement in August between Mr. Redlich, Mr. Rizzuto,
21 Ms. Visconti and Mr. Aubrey. There's nothing in there
22 about them.
23 That's because it didn't happen. What's going
24 on here is let's come into trial and put our best case
25 forward. Now, it's interesting because it seems from the
527
1 closing argument that the reason for the termination now
2 is all about performance. It sounds like they have done
3 away with the reorganization. I mean, that's what it
4 seemed like in the closing.
5 It says -- I think he said the truth is he was
6 fired because of his performance. It's very interesting,
7 very interesting because Exhibits 13, which is the
8 contemporaneous memo, says nothing about performance.
9 Exhibit 81, and we know Mr. Rizzuto can write, we saw a
10 lot of writing, a lot of bullet points, there's nothing
11 about performance, and Exhibit 78, there's nothing about
12 performance.
13 So what they are trying to do is try to shift
14 things, shift things away. I'm not going to take pot
15 shots at opposing counsel, and let me just say that he
16 spent about ten minutes in -- the first ten minutes of his
17 opening trying to say that Mr. Baffo did not get HIV the
18 way he has testified.
19 First of all, the judge is going to tell you
20 that HIV is a disability. So in some respects it's
21 irrelevant how he got HIV, in all respects. Then he said
22 where's the police officer or the first aid person? He
23 could have done all that. He could subpoena the Circle
24 Line. He could subpoena the first aid people. He could
25 have questioned Mr. Baffa at his deposition on those
1 subjects. He could have done all that.
2 And then he could have laid out and actually
3 could have had a basis to lay out in front of you that
4 what Mr. Baffo is saying is untrue. He chose not to do
528
5 that. Instead, he just tries to create this doubt about
6 how he contracted HIV, to try and make it look like, you
7 know, maybe he's gay or intravenous drug user or he's
8 cheating on his wife. There's no evidence to that and
9 it's reprehensible.
10 Now, the backdated, well, he talked about
11 Exhibit DJ. The whole thing was about Exhibit 13. That
12 was the exhibit I just showed you, Plaintiff Exhibit 13,
13 and like I said, it is dated 2008, so I'm not really sure
14 what that is.
15 As for the severance, now he tried to say they
16 showed this compassion to increase the amount of money
17 they were going to give him in severance. If there was
18 some true compassion why didn't they just give him the
19 health care in a time of need? What they tried to do is
20 give him a little more because they knew what was going
21 on.
22 Where is Ms. Jablonsky, by the way? She's the
23 HR person. Did she testify? Did they call her? No.
24 They increased it, but they wanted him to sign that
25 severance offer that would waive his right to be here.
529
1 He didn't take the money and the health care.
2 He wanted to be here. He wanted to prove his case, and he
3 wanted you to decide his fate.
4 The hand sanitizers? You know, I think
5 Mr. Baffo said I'll give you the benefit of the doubt.
6 That's what he said, and did we ever see any policy
7 regarding any written policy about hand sanitizers had to
8 go into the de Seversky Center upon his return from
9 vacation? It's a bit curious, I have got to say.
10 So, ladies and gentlemen, I would ask that you
11 look at all -- gentlemen, I'm used to saying that, but you
12 are all gentlemen, excuse me gentlemen of the jury, I
13 would ask you to look at all of the evidence. I admit
14 there's no, and I said it from the beginning, there is no
15 e-mail that admits he was terminated because he was HIV
16 positive. It doesn't happen.
17
18
19
But look at all of the inconsistencies --
THE COURT: You have to come to a conclusion.
MR. WIGDOR: Look at all the lies and I would
20 ask that you return a verdict in Mr. Baffo's favor.
21
22
Thank you. Thank you, your Honor.
THE COURT: We'll take a ten-minute break and
23 then I'll give you the law, which will take me about 12
24 minutes.
25 We'll take a short break, about ten minutes.
1 Don't discuss the case. Don't form an opinion.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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25
See you in about ten minutes.
(Jury leaves the courtroom.)
(Recess.)
(Continued on next page.)
530
Court's Charge
1 THE COURT: All right.
2 Bring the jury in.
4 proceedings.)
5
6
7
THE COURT: Be seated.
8 Now that the evidence in the case has been
531
9 presented and the attorneys for the parties have concluded
10 their closing arguments, it's my responsibility to
11 instruct you as to the law that governs this case. My
12 instructions will be in three parts.
13 First, I'll give you instructions regarding the
14 general rules that define and govern the duties of a jury
15 in a civil case.
16 Second, I will instruct you as to the legal
17 elements of the causes of action relevant to this case.
18 And, third, general instructions regarding your
19 deliberations.
20 It is your responsibility and your duty to find
21 the facts from all the evidence in this case. You are the
22 sole judges of the facts, not counsel, not myself. I want
23 to impress upon you again the importance of that role. It
24 is for you and you alone to pass upon the weight of the
25 evidence, to resolve such conflicts as may have appeared
Court's Charge
532
1 in the evidence and to draw such inferences as you deem to
2 be reasonable and warranted from the evidence, or the lack
3 of evidence. With respect to any question concerning the
4 facts, it is your recollection of the evidence and yours
5 alone that controls.
6 Parties are equal before the court. This case
7 should be considered and decided by you as an action
8 between parties of equal standing in the community. All
9 persons, corporations or entities stand equal before the
10 law, and are to be dealt with as equals in this court.
11 All parties from entitled to equal consideration.
12 No party is entitled to sympathy or favor. You
13 must judge the facts and apply the law as I shall instruct
14 you without bias, prejudice or sympathy to either the
15 plaintiff or the defendants.
16 Burden of proof.
17 In a civil case such as this, the plaintiff has
18 the burden of proving the essential elements of his claims
19 against the defendants by a preponderance of the evidence.
20 To establish a claim by the preponderance of the evidence
21 means simply to prove that something is more likely. A
22 preponderance of the evidence means the greater part of
23 the evidence.
24 That does not mean the greater number of
25 witnesses or the greater length of time taken by either
Court's Charge
533
1 side. The phrase preponderance of the evidence refers to
2 the quality of the evidence, the weight and effect it has
3 on your minds.
4 If the plaintiff is to win, the evidence that
5 supports his claim must appeal to you as more nearly
6 representing what took place than the evidence opposed to
7 his claim. To put it differently, if you put plaintiff's
8 and defendants' evidence on opposite sides of the scale,
9 plaintiff would have to make the scales tip somewhat
10 slightly on his side. If the evidence weighs so evenly
11 that you are unable to say there is a preponderance on
12 either side, then you must resolve it in defendants'
13 favor.
14 To recapitulate briefly, the preponderance of
15 the evidence means such evidence as when considered and
16 compared with that opposed to it produces in your mind a
17 belief that what is sought to be proved is more likely the
18 case than not the case.
19 The evidence upon which you are to decide what
20 the facts are comes in several performance, sworn
21 testimony of witnesses, both on direct and
22 cross-examination, and regardless of who called them,
23 exhibits that the court has received into evidence, and
24 facts to which the lawyers have agreed or stipulated.
25 Certain things are not evidence, and are to be
Court's Charge
534
1 disregarded in deciding what the facts are. Again,
2 statements and arguments by lawyers are not evidence,
3 objections to questions are not evidence, testimony that
4 has been excluded or stricken is to be disregarded,
5 anything you may have seen or heard outside the courtroom
6 is not evidence.
7 In deciding what testimony to believe.
8 In deciding what the facts are, you must
9 consider all the evidence that has been offered. In doing
10 this you must decide which testimony to believe and which
11 testimony not to believe. In making that decision there
12 are a number of factors you may take into account
13 including the following, the witness's opportunity to
14 observe the events he or she described, the witness's
15 intelligence and memory, the witness's manner while
16 testifying, does the witness have an interest in the
17 outcome of the case? Does the witness have any bias or
18 prejudice concerning any part of the matter involved in
19 this case? The reasonableness of the witness's testimony,
20 considered in the light of all the evidence in the case.
21 In considering the testimony of the plaintiff or
22 the defendants, you must apply the same standards as you
23 apply to any other witness. If you find that a witness's
24 testimony is contradicted by what that witness has said or
25 done at another time, or by testimony of other witnesses,
Court's Charge
535
1 you may disbelieve all or any part of the witness's
2 testimony.
3 But in deciding whether or not to believe the
4 witness, keep this in mind. People sometimes forget
5 things. A contradiction may be an innocence lapse of
6 memory, or it may be an intentional falsehood. Consider,
7 therefore, whether it has to do with an important fact or
8 only a small detail. Different people observing the same
9 event may remember it differently and, therefore, testify
10 about it differently.
11 You may consider these factors in deciding how
12 much weight to give to the testimony. You are not to give
13 any greater weight or credence to a witness solely because
14 of his or her title or position.
15 We now go to the law portion of this case.
16 Plaintiff claims that he was unlawfully
17 terminated from his employment with NYIT because of his
18 disability in violation of the federal Americans with
19 Disability Act which I call the ADA and the state human
20 rights law. It is unlawful for an employer to
21 intentionally discriminate against an individual with a
22 disability because of that person's disability.
23 Plaintiff claims that defendants intentionally
24 discriminated against him by terminating him because he
25 had HIV. There are two defendants, NYIT and Robert
Court's Charge
536
1 Rizzuto. Plaintiff claims under the ADA applies only to
2 NYIT, and his claim under the state human rights law
3 applies to both defendants.
4 You must consider each of the defendants
5 separately in reaching a verdict so as to each of them.
6 Many of the same standards applies to the ADA and the
7 state human rights law claims. Accordingly, whenever
8 possible, the plaintiff's ADA and state human rights law
9 claims will be addressed together. This means certain
10 jury instructions will apply to both laws. However, there
11 are also some important differences between these laws
12 that I will discuss.
13 If you find that the plaintiff has prevailed
14 specifically on his claim for discrimination under the
15 state human rights law, you must then determine whether
16 Rizzuto can be held liable as an aider and abetter of that
17 discrimination. You will be asked to determine liability
18 separately according to the standards that I will give you
19 in these instructions.
20 Under the law having HIV is a disability. For
21 plaintiffs to prove discrimination, he must prove:
22 1. That they actually knew that he had HIV, or
23 they perceived that he had HIV.
24 2. That his disability was a motivating factor
25 that prompted the decision to terminate him.
Court's Charge
537
1 Motivating factor.
2 Plaintiff must prove that his disability or
3 perceived disability was a motivating factor that prompted
4 the decision to terminate him. Plaintiff need not show
5 that his disability or perceived disability was the sole
6 or exclusive reason for his employment decision. Instead,
7 it is sufficient that it was a motivating factor that
8 moved defendant towards the decision to terminate him.
9 On the other hand, if you find that the decision
10 to terminate plaintiff was based solely upon other
11 reasons, right or wrong, fair or unfair, other than his
12 disability or perceived disability, then you must find in
13 defendants' favor. In that case, you must not second
14 guess defendants' decision or permit any sympathy for the
15 plaintiff to lead you to substitute your judgment for that
16 of defendant, even though you personally may not approve
17 of the action taken and would have acted differently under
18 the circumstances.
19 Employer's judgment.
20 The law allows an employer to decide to
21 terminate an employee for any reason or no reason. But it
22 may not do so for a discriminatory reason. The decision
23 to terminate may be for a good reason, a bad reason or no
24 reason at all, so long as the decision was not motivated
25 by the unlawful discrimination.
Court's Charge
538
1 Therefore, plaintiff must show more than the
2 defendant made an unwise decision or acted arbitrarily.
3 Good faith or negligent errors in an employer's judgment
4 are not, standing alone, evidence of unlawful
5 discrimination. If you find that defendants' decision to
6 terminate plaintiff was because of reasons other than his
7 disability or perceived disability, you must find in
8 defendants' favor.
9 Only if you find that defendant was motivated,
10 at least in part, by the disability or perceived
11 disability, can you find in plaintiff's favor.
12 Corporation acts through its employees.
13 Defendant NYIT is a corporation. As a
14 corporation, you can only act through the acts of its
15 employees. I instruct you that the corporation is
16 responsible for the acts of its employees that are made
17 while acting within the scope of their duties as
18 employees.
19 I instruct you that Rizzuto, as director of
20 dining services for the NYIT, acted on behalf of NYIT.
21 Liability of individual defendants under the
22 state human rights law.
23 Plaintiff has alleged that Rizzuto is
24 individually liable under the state human rights law for
25 discriminating against him based on his disability or
Court's Charge
539
1 perceived disability. An individual defendant can be
2 liable for aiding and abetting in discrimination if he
3 actually participated in the conduct that gives rise to
4 the discrimination.
5 Plaintiff cannot establish aiding and abetting
6 claim unless you have already determined that plaintiff's
7 disability or perceived disability was a motivating factor
8 in his termination. If you determine that plaintiff's
10 in his termination, and that Rizzuto actually participated
11 in the discriminatory conduct, then you must find him
12 individually liable for aiding and abetting in violation
13 of the state human rights law.
14 Damages.
15 My charge to you on the law of damages must not
16 be taken as a suggestion that you should find for
17 plaintiff. It is for you to decide on the evidence
18 presented and the rules of law I have given you whether
19 the plaintiff is entitled to recover from the defendants.
20 If you decide that plaintiff is not entitled to recover,
21 you need not consider damages. Only if you decide that
22 plaintiff is entitled to recover will you consider the
23 measure of damages.
24 Importantly, you are not to consider damages for
25 lost or past or future wages. Those matters are for the
Court's Charge
540
1 court to decide. The type of damages you are to consider
2 are compensatory damages, one, punitive damages, two, and,
3 three, nominal damages.
4 Compensatory damages.
5 If you find that plaintiff is entitled to a
6 verdict, an award of damages must be reasonable. You may
7 award plaintiff only such damages as would reasonably
8 compensate him for such injury. You are not permitted to
9 award speculative damages. You are not to include in any
10 verdict compensatory or prospective loss which, although
11 possible, is not reasonably certain to occur in the
12 future.
13 If you decide that plaintiff is entitled to an
14 award of damages you may consider emotional pain and
15 suffering and mental anguish. As instructed, you may not
16 consider lost earnings or past or future wages. That is
17 for the court to decide, if you find for the plaintiff.
18 Nominal damages.
19 If you find for plaintiff but you find that
20 plaintiff has failed to prove damages, you may award
21 nominal damages. Nominal damages may not exceed $1.
22 Punitive damages.
23 Award of punitive damages is a remedy that may
24 be considered by you only if you find in plaintiff's
25 favor. Punitive damages can be awarded to plaintiff only
Court's Charge
541
1 if you find that NYIT violated the ADA. If you find for
2 plaintiff and if you award compensatory or nominal
3 damages, you may, but are not required, to award punitive
4 damages.
5 The purpose of punitive damages is to punish a
6 defendant for committing similar acts in the future and to
7 deter others from similar wrongful conduct in the future.
8 Plaintiff has the burden of proving punitive damages.
9 Punitive damages are appropriate only if you find that
10 defendants' conduct was malicious or in reckless disregard
11 of plaintiff's rights.
12 Conduct is malicious if it is accompanied by ill
13 will or spite, or if for the purposes of injuring another.
14 If you find that punitive damages are appropriate, you
15 must use reason in setting the amount. Punitive damages
16 must bear a reasonable relationship to plaintiff's actual
17 damages. Punitive damages, if any, should be an amount
18 sufficient to fulfill their purposes, but should not
19 reflect bias, prejudice or sympathy toward any of the
20 parties.
21 We now come to the conclusion, which is very
22 short.
23 I remind you once again it's your responsibility
24 to judge the facts in this case from the evidence admitted
25 during the trial, and to apply the law as I have just
Court's Charge
542
1 given it to you. Your decision should include rational
2 discussion of the evidence in this case by all of you. So
3 now I'm saying, discuss the case amongst yourselves.
4 In your deliberations you are entitled to your
5 own opinion, but you should exchange views with your
6 fellow jurors and listen carefully to each other. While
7 you should not hesitate to change your opinion if you are
8 convinced another opinion is correct, your decision must
9 be your own. If plaintiff has failed to establish any
10 essential element of his claim by a preponderance of the
11 evidence, your sworn duty is to find for the defendants.
12 Of course, if he's carried his burden as to his
13 claim, and established every essential element of those
14 claims by a preponderance of the evidence, your sworn duty
15 is to find for him a sum of money which will fairly and
16 justly compensate him.
17 If you wish to have some of the testimony
18 repeated, you may make such a request. I'll bring you
19 into court and have the court reporter read those portions
20 you desire to hear. If you wish to have some portions of
21 these instructions repeated, you may make that request.
22 Either can be accomplished by giving a note to the clerk.
23 If it becomes necessary during your
24 deliberations to communicate with me for any reason, send
25 a note through the clerk. No communication with the court
Court's Charge
543
1 except by a writing. The court will not communicate with
2 any member on the jury on any subject touching on the
3 merits of the case other than by writing or orally here in
4 open court.
5 Don't reveal to any person, not even to the
6 court, how you stand numerically or otherwise on the
7 merits of the case until you all have agreed upon a
8 verdict. What I'm saying there is, when you send a note
9 in, regardless of what you are saying, don't tell me how
10 you stand, whether it's 4 to 4, 7 to 1, I'm not supposed
11 to know, and not that I'm not supposed to know, the
12 lawyers are not supposed to know, and any note you send me
13 I have to give to them. I'll get to another point with
14 notes in a few minutes.
15 Any verdict you reach must be unanimous. That
16 means all of you have to agree. Your decision on each
17 element has to be unanimous, and the total has to be
18 unanimous.
19 Your oath sums up your duty, that you will
20 without fear or favor to any persons conscientiously truly
21 try the issues before you according to the evidence given
22 to you in open court.
23 Now what I do is I ask for a sidebar because I
24 read you my charge, that's the law, and the lawyers have a
25 copy. In case I left out a word or read it wrong, they
Court's Charge
1 will tell me.
2 Sidebar.
3 (Continued on next page.)
4
5
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Court's Charge
(Sidebar.)
MR. WIGDOR: You read it perfectly, Judge.
THE COURT: Okay.
MR. WIGDOR: It's fine.
MR. CATALANO: No problems.
THE COURT: Go back.
(Sidebar concluded.)
545
Court's Charge
546
(In open court.)
THE COURT: I read it correctly.
1
2
3 Now let me tell you what we are going to do. We
4 are going to get all the evidence together. Whether you
5 have seen it or not it's immaterial. It's all going back
6 to you, so you will get all the evidence.
7 Not only that, the law I read to you I'm going
8 to send you back copies. So you will have it because it's
9 confusing. There is no question about it. You will all
10
11
12
13
14
get a copy so you can go over it. If you have any
confusion on that, you can ask for a note.
If you send me a note, say this was an accident
case and you say, what did witness A say the color of the
light was, we are having a little confusion? I can show
15 the note to the lawyers and I can write the witness said
16 the color of the light was red and send it right back.
17 Sometimes you want to hear testimony and you
18 don't know what you want, but you want to get a flavor of
19 what the witness was saying. I don't care which witness
20 it is. If you ask for witness B, I have to bring you out
21 and the court reporter will read back the testimony. When
22 he starts reading, you are not compelled to listen to
23 everything on direct, cross, redirect, recross.
24 If you all agree you get to a point you heard
25 enough, stop the reading. I don't punish your for asking
Court's Charge
547
1 for readbacks. And how do I know you are satisfied? When
2 I see you looking around at each other, is that enough?
3 Is that enough? And everybody is shaking your head. I
4 will ask you do you all agree you have heard enough? If
5 you say yes, you can go back and you continue
6 deliberating.
7 Let's see if I covered all the points. Oh, very
8 important. The first thing you have to do is appoint a
9 foreperson -- a foreman -- normally I say a foreperson.
10 This is the first time I had an all male jury. You have
11 to appoint someone. That person only gets one vote. He
12 doesn't get any more money or any better food. So
13 immediately appoint a foreperson.
14 He will be in charge, though, because I'm going
15 to send back a verdict sheet. The verdict sheet will tell
16 you what to decide first and how to follow after you
17 answer yes or no. The verdict sheet is very important.
18 It's a road map for you to follow.
19 So it makes it easier. I will send back a
20 number of verdict sheets. You will all have it and I will
21 send back all the evidence, and the first thing you have
22 to do is appoint a foreperson and start your
23 deliberations.
24 Lunch is coming at 12. So I'm going to send you
25 back. Start your deliberations. We will get you a
Court's Charge
548
1 verdict sheet and get you the evidence and we will get you
2 the law and it will all come back to you.
3 Start deliberating.
4 (Jury commences deliberations at 11:30 a.m.)
5
6
7
8
9
10
11
12
13
14
15
16
17
THE COURT: Have you all seen the verdict sheet?
MR. WIGDOR: We haven't, your Honor.
THE COURT: You haven't?
MR. WIGDOR: No.
MR. CATALANO: We saw a draft.
MR. WIGDOR: We didn't see a draft.
We haven't seen anything.
THE COURT: How about the evidence?
MR. WIGDOR: The evidence is set.
THE COURT: You are sure?
MR. WIGDOR: You have seen it, right?
MR. CATALANO: Yes.
THE COURT: Everybody examined it because I have
18 had many a time where the wrong stuff goes in.
19 It's too important. I will check where the
20 verdict sheet is. You can be seated.
22 proceedings.)
23 MR. WIGDOR: No objections to the verdict sheet,
24 either side.
25 THE COURT: How about the defendant?
1
2
3
4
Court's Charge
MR. WIGDOR: Neither side.
MR. SPARBER: No objections, your Honor.
THE COURT: Okay.
I am sending in the charge and the verdict
549
5 sheet. I understand you all accept it, but if you want to
6 look at what's going back again before I send it back.
7
8
MR. WIGDOR: Everything is fine, your Honor.
THE COURT: The only thing we haven't sent in is
9 the evidence.
10 We are waiting for that.
11
12
MR. WIGDOR: We have it here, your Honor.
THE COURT: If so, and you have it, we'll send
13 it all back.
14
15
MR. WIGDOR: Here, your Honor.
THE COURT: Thank you.
16 Lunch comes at 12, so as soon as we hear about a
17 verdict, tell Joe where you are.
18 MR. WIGDOR: Your Honor, just for the record,
19 can I say on behalf of my team and I'm sure Mr. Catalano
20 joins me, it's been a privilege to appear before you.
21 Some might think I'm a glutton for punishment
22 appearing before you two jury trials in the span of six
23 weeks, but it was a pleasure.
24 MR. CATALANO: Finally he added the word
25 pleasure, Judge, which I was going to add.
1
2
550
THE COURT: Good.
MR. CATALANO: You have been very courteous and
3 we appreciate it.
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(Recess while jury deliberates.)
1
2
(Jury enters the courtroom at 3:40 p.m.)
3 We have a note from the jury marked Court
4 Exhibit No. 4, we have reached a verdict.
5 I will have the clerk take the verdict.
THE CLERK: Mr. Foreman please rise.
Has the jury reached a verdict? Yes or no?
JURY FOREPERSON: Yes.
551
6
7
8
9 THE CLERK: Please refer to the verdict sheet.
10 Question No. 1. Did plaintiff prove that NYIT
11 intentionally discriminated against him based on a
12 disability that was a motivating factor in NYIT's decision
13 to terminate him?
14 Yes or no?
15
16
THE CLERK: Question No. 2. Did plaintiff prove
17 that NYIT intentionally discriminated against him based on
18 a perceived disability that was a motivating factor in
19 NYIT's decision to terminate him?
20 Yes or no?
21
22
JURY FOREPERSON: No.
23 that defendant Rizzuto is liable for intentionally aiding
24 and abetting in the discrimination proven against NYIT by
25 actually participating in the conduct giving rise to the
552
1 discrimination?
2 Yes or no?
JURY FOREPERSON: No. 3
4 THE CLERK: Question No. 4. In what amount if
5 any has plaintiff proven that he is entitled to damages.
6 A. Compensatory damages.
7
8
9 NYIT.
JURY FOREPERSON: The amount of $100,000.
THE CLERK: 4C, punitive damages, as against
10 In what amount?
11
12
13
JURY FOREPERSON: In the amount of $1 ,250,000.
THE COURT: Poll the jury.
THE CLERK: Be seated.
14 Gentlemen of the jury, as the court has received
15 your verdict you say you find in favor of the plaintiff as
16 to compensatory damages in the amount of $100,000.
17
18
19
20
21
22
23
24
25
verdict?
verdict?
As to punitive damages against NYIT, $1,250,000.
Juror number 1 I is that your verdict?
JUROR NO. 1 : Yes.
THE CLERK: Juror number 2, is that your
JUROR NO. 2: Yes.
JUROR NO. 3: Yes.
553
1 THE CLERK: Juror number 4, is that your
2 verdict?
3 JUROR NO. 4: Yes.
5 verdict?
6 JUROR NO. 5: Yes.
8 verdict?
9 JUROR NO. 6: Yes.
11 verdict?
12 JUROR NO. 7: Yes.
14 verdict?
16 THE CLERK: And so say you all, yes?
17 ALL JURORS: Yes.
18 THE CLERK: Jury polled, Judge.
19 I 11 take this.
20 THE COURT: I wi 11 thank the jury and you are
21 excused, but don't leave.
22 Wait until I come back. I will talk to you, but
23 you are relieved of your duties as jurors. Please wait
24 for me.
25 (Jury leaves the courtroom at 3:45 p.m.)
Paul J. Lombardi . RMR. FCRR
1
2
554
THE COURT: Motions.
MR. CATALANO: Judge, we'd like to make a motion
3 obviously for judgment notwithstanding the verdict.
4 Would you like it on paper?
5
6
THE COURT: Yes.
MR. WIGDOR: Your Honor, I think before that's
7 done, we have the issue of economic damages that we
8 have --
9
10
11
THE COURT: I'll let that go first.
MR. WIGDOR: Okay.
THE COURT: How much time do you want to make
12 your motion?
MR. CATALANO: Two weeks, your Honor. 13
14
15
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18
19
20
21
22
23
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25
THE COURT: How much time do you want to reply?
MR. WIGDOR: Two weeks is fine, your Honor.
direct
them.
THE COURT: Okay.
The court's in recess.
MR. WIGDOR: Thank you, your Honor.
MR. CATALANO: Thank you.
THE COURT: The students come on back.
By the way, since motions are pending, I
the jurors not to talk to you and you don't
MR. WIGDOR: Okay.
THE COURT: Because it's still pending.
wi 11
talk to
1
2
3
4
5
6
7
8
9
10
11
12
13
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15
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MR. WIGDOR:. Yes, your Honor
MR. CATALANO: Yes, your Honor
(The matter concluded.)
555
1
$ 138 [11-492:2
1------------1 14[1] - 524:12
$1 [1] - 540:21
$1,250,D00121- 552:11,
552:17
$100,000 [21- 552:7, 552:16
$11 [4] - 510:6, 512:6,
518:11, 519:14
$12 [6] - 510:10, 512:6,
514:17, 515:2, 515:21,
518:10
$122,0DD [11- 516:5
$14,0DD [11- 521 :23
$150,000 [31- 492:20, 523:5,
525:6
$2D,ODD [11- 522:3
$220 [1] - 506:3
$50,000111- 516:4
$6,800 [1] - 522: 1
$6,663 [1]- 521 :19
$600,0DD [31- 492:13,
492:15, 492:25
$667 ,ODD [11 - 523:7
$7,000 [2]- 496:8, 496:10
$76,0DD [11- 519:12
$79,0DD [11- 519:12
'D6 [11 - 517:1
'D7 [11- 511:4
'07-'08 [1] - 517:2
'DB [11- 513:7
'09 [11- 508:21
'9Ds [1] - 512:22
141[11-511:15
15 [1] - 502:14
15th [2] - 516:11, 516:21
16 [1] - 495:16
16th [5] - 513:5, 516:15,
516:17, 524:21, 524:24
18D [11- 522:4
19 [1] - 517:3
1st [1] - 497:7
2
2116] - 510:4, 510:23,
510:25, 511 :25, 514:23,
516:19, 518:12, 519:18,
519:22, 520:5, 520:9,
520:18, 536:24, 551:16,
552:20, 552:22
2D [3J - 511 :15, 517:22,
524:20
2DD8 [1] - 511 :20
2DD7-2DD8111 - 523:5
2DDB [8]-492:11, 492:19,
492:21, 493:7. 493:8,
495:16, 495:17, 528:13
2DD9 [9] - 492:21, 493:8,
495:18, 500:16, 501:17,
513:20, 517:3, 517:4
2D1[21-517:21, 524:20
2D1D [1] - 521 :24
2D12 [1] - 489:9
20th [2] - 495:21, 495:22
22 [3J - 517:22, 518:12,
524:20
22nd 111- 501:21
1-----------1 23 [16] - 514:23, 516:13,
1 124] - 500: 16, 506:25,
1
508:12, 509:13, 510:25, 516:14, 516:18, 517:18,
511 :1, 511 :2, 511:5, 519:18, 519:19, 520:10,
511 :10, 511 :17, 513:15, 520:13, 520:17, 520:20,
516:17, 517:3, 517:9, 521:4, 521:16, 522:10,
518:17, 518:20, 519:2,
522
:
25

524
:
9
525:7, 536:22, 543:10, 23rd [5]-498:5, 498:25,
551:10, 552:18, 552:19 501:25, 502:7, 526:5
1.2 [11- 525:5 24[1] - 511 :15
1DD [1] - 489:23 25 [1] - 524:10
1D003 [1] - 489:17 253111- 524:7
1 D103 [1] - 489:21 28th [2] - 516: 10, 522:23
102 [1] - 496:4 29 [1] - 500:2
11722 [1] - 489:23 29th [1] - 499:8
1180 [
11
_489:23 2nd [111- 495:13, 496:15,
11 :3D 111 - 548:4 497: 14, 497:23, 498:24,
12 [6] - 489:9, 496:11, 499:4, 500:12, 501:11,
519:21, 529:23, 547:24,
5
o
2
:
7

503
:
2

521
=
2
31 [3J - 521:20, 521:24, 522:3
31st111- 522:2
349 [1] -498:25
38 [1] - 493:13
39 [1] - 515:4
397 [2] - 497:24, 498:3
3:40 [1] - 551:1
3:45 [1] - 553:25
A
a.m [2J - 489: 10, 548:4
abandon [11 - 500:10
abetteri11- 536:16
abetting [41 - 539:2, 539:5,
539:12, 551:24
able [3]- 504:25, 512:16,
519:15
3rd [1]- 501:17
absence [11 - 499:25
-----
4
-----i absolutely131 - 499:22,
506:23, 518:7
418]- 506:14, 510:7, 543:10,
551 :4, 552:4, 553:1, 553:3
44 [2] - 502:8, 503:25
45 [2] - 492:18, 493:4
453 [2] - 493:22, 493:24
459 [1] - 494:12
absurd [11 - 509:3
accept 111 - 549:5
accident [11- 546:12
accompanied [11 - 541: 12
accomplished [11 - 542:22
according [3] - 499:10,
46 [2] - 493:6, 493:7
49[1]-521:17
4C 111 - 552:8
536:18, 543:21
accordingly [11 - 536:7
account 111 - 534: 12
t-----------i accurate [11-492:7
accurataly[1J- 517:4
---------..... Act111- 535:19
514)-496:10, 519:24, 553:4,
5
553:6 act 121- 507:21, 538:14
5:09 [
11
_
520
:
6
acted 131- 537:17, 538:2,
538:20
6
acting 111-538:17
,____ ________ __, action 131-531:17, 532:7,
6131-496:10, 553:7, 553:9 537:17
82 [1J - 501:19 acts [41- 538:12, 538:14,
63 [2] - 501:17, 501:19 538:16, 541:6
631 [21 - 489:23, 489:23 actual 111 - 541: 16
66 [11- 501:18 ADA[61- 535:19, 536:1,
666 [1] - 489:20 536:6, 536:8, 541 :1
67 [11 - 501: 18 add [2] - 492:22, 549:25
----------i added 111-549:24
7
addition [11 - 501 :15
,____ ________ __, addreaaad [11- 536:9
7131
-
543
=
10

553
=
10

553
=
12
admit[2] - 526:10, 529:13
712-6106 [1] - 489:23
712
-6
122
[
11
_
489
:
23
admits 141 - 496:21, 498:24,
78 [3J - 495:22, 501: 10,
523
=
23

529
:
15
527
:
11
admitted 151 - 493:4, 493:6,
493:19, 516:1, 541:24
ads [11 - 499: 12
1-------8-----1 advance 111- 516:15
8181 - 494:4, 506: 11, 506:13,
510:7, 520:14, 553:13,
553:15
8-8 [1] - 523:7
81 [3J - 495:20, 501: 10, 527:9
85 [1] - 489:16
affidavit [17] - 492: 1, 492:2,
492:5, 492:6, 493:3, 493:5,
493:6, 495:8, 495:11,
500:17, 500:23, 502:14,
517:24, 518:2, 525:23,
526:18
8:3D [2] - 494:4, 520:14 afternoon [11 - 511 :21
----------i ages111-523:19
9
549:16
125 [2] - 499:6
13 [5] -495:15, 501:10,
527:7, 528: 11, 528: 12
136[1]-511:2
9111-524:12
t------------1 9-10111- 525:4
3 [5)- 506:10, 510:7, 551:22, 9:40111- 489:10
3
ago [221- 508:15, 508:19,
508:20, 509:23, 510:18,
510:24, 511 :2, 511 :3,
511:5, 511:10, 511:12,
511:14, 511:16, 511:20,
552:23, 552:25
30th [1] - 516:21
511 :22, 511 :23, 511 :24,
2
512:4, 512:5, 520:21 appropriate [21 - 541 :9, 518:23 beyond [2] - 500:3, 503:9
agree [3J - 543:16, 546:24, 541:14 bad [11 - 537:23 bias [3]- 532:14, 534:17,
547:4 approval [11 - 513:8 Baffo [71J - 491:3, 491 :5, 541:19
agreed [3]- 513:19, 533:24, approve [11- 537:16 491: 12, 491 :23, 493:2, big [2] - 523:8, 525: 15
543:7 approved l2l - 495: 13, 493:12, 493:14, 493:17, bingo [11- 515:7
agreement [11 - 526:20 499:14
495:6, 495:14, 495:23,
bit 111 - 529:9
AH [11 - 521 :6 arbitrarily [11 - 538:2
496:12, 496:17, 497:6,
blame [11 - 504:8
ahead [1J - 525:21 area111- 518:15
497:9, 497:14, 497:22,
bleeding [11 - 504:20
aid 151 - 500:9, 504:20, argue 111 - 516: 16
498:6, 498:9, 498:17,
blood [3J - 491:8, 508:18,
508:18, 527:22, 527:24 argued [2] - 513:4, 522:13
498:22, 498:24, 498:25,
510:17
alder[1J - 536:16 argument[3(- 500:10,
499:8, 499:9, 499:19,
boat[51- 508:10, 508:15,
aiding [41 - 539:2, 539:5, 514:22, 527:1
500:5, 500:8, 500:19,
508:17, 511:9, 511:10
539:12, 551:23 argumenta [3] - 500:4,
501:11, 501:12, 501:20,
body [1] - 496:6
ALL [11- 553:17 531:10, 534:2
501 :22, 501 :25, 502:6,
book 111 - 524: 1
alleged 111 - 538:23 assistant 121 - 499: 13, 504:6
502:16, 504:1, 504:13,
booka 111 - 524:4
allegedly [11 - 519:22 a880Ciate [31 - 491 :25,
505: 1, 505:4, 505: 11,
bon 131 - 496:8, 523: 13
allows 111 - 537:20 519:7, 519:8
505:14, 505:23, 505:24,
bottle [11 - 491 :8
alma 111 - 503:20 Associates 111 - 512:23
506:2, 506:9, 506:24,
bottom 121 - 523:7, 524:10
alone [4] - 507:5, 531 :24, aaaume111-516:10
507:11, 507:23, 509:17,
break [41 - 496:4, 505: 19,
532:5, 538:4 Atlanlic[11- 505:21
509:22, 510:3, 511:13,
529:22, 529:25
American 111- 515:4 attempted [11 - 508:23
515:21, 516:3, 517:8,
bridge [11 - 505:21
Americans 111 - 535: 18 attempts 111 - 517:6
517:11, 517:19, 518:13,
briefly (1] - 533:14
amount 110J - 505:4, 506: 17, attentive [11- 491 :18
519:3, 520:15, 522:6,
bring [SJ - 490: 11, 509: 1,
528:16, 541:15, 541:17, attorneys [11 - 531 :9
523:21, 523:22, 524:5,
519:1, 531:2, 542:18,
552:4, 552:7, 552:10, Aubrey (9] - 493:21, 493:22,
525:25, 527:17, 527:25,
546:20
552:11, 552:16
494:13, 500:13, 500:18,
528:4, 529:5
bringing 111 - 490:2
anguish 111 - 540: 15 509:24, 513:9, 526:2,
BAFFO 111 - 489:3
brought l2l - 512:20
anniversary111- 503:21 526:21
Baffo'a 191 - 491: 14, 500: 15,
budge [11-496:9
annual [2] - 506:14, 517:1 AUBREY [11 - 489:8
503:3, 503:10, 503:18,
budget [2] - 492:12, 492:19
504:15, 517:17, 518:17,
Answer 1101 - 494:3, 494:8, August [111- 495:5, 495:7,
529:20
bullet [11 - 527: 10
494:15, 494:17, 494:19, 495:8, 495:10, 513:19,
baaed [51-491:13, 537:10,
burden 141- 532:16, 532:18,
494:21, 498:7, 498:11, 513:20, 516:20, 517:4,
538:25, 551:11, 551:17
541:8, 542:12
498:16, 498:20 521 :24, 522:3, 526:20
basis [2] - 502:6, 528:3
business 111- 493:9
answer151- 492:18, 493:19, authorization [II- 517:15
501 :4, 501 :5, 547:17 authorizations [2] - 513: 10,
bear[11- 541:16
c
answered 111- 494:21 517:7
become [11- 503:18
ANTHONY [11 - 489:3 Avenue 121 - 489: 16, 489:20
becomes 121- 514:23, cannot [31 - 491 :22, 495:6,
Anthony1s1- 492:11, award 1121 - 505:4, 505:14,
542:23 539:5
494:15, 499:15, 504:8, 506: 10, 506: 11, 540:6,
BEFORE [11- 489:12 capacities [2] - 489:8, 489:9
516:1 540:7, 540:9, 540:14,
beforehand 111 - 509:5 captain [2] -499:13, 501:16
Anthony's [2] - 499:14, 540:20, 540:23, 541 :2,
beginning [11-529:14 care191-498:12, 502:17,
499:24 541:3
behalf 141- 491: 18, 506:8, 521 :20, 521 :23, 522:2,
anxlety[11- 504:2 awarded [11 - 540:25
538:20, 549: 19 522:3, 528:19, 529:1,
appeal 111 - 533:5
belief[11- 533:17 546:19
appealing [11- 505:16
B
Beltre [11- 510:19 career111- 496:1
appear [11 - 549:20
BELTRE 111 - 489: 19 carefully [11 - 542:6
APPEARANCES [11 - 489:14
backdate [11- 516:11
bend 111 - 491 :4 Carol [3] - 520:12, 520:20,
appeared 111 - 531 :25
backdated [191 - 495:17,
bending [11 - 518:23 520:25
appearing [11 - 549:22
513:6, 513:7, 514:8,
bends 111 - 515:20 carried [11- 542:12
Applebee' [41 - 504:6,
514:11, 514:13, 516:8,
benefit 111 - 529:5 case[47] -491:7,491:11,
512:17, 519:14, 519:15
516:15, 516:20, 517:21,
bent [2] - 509:21, 509:22 492:4, 495:6, 495:8,
applies [41- 490:16, 536:1,
517:22, 518:5, 518:6,
beat [11 - 526:24 496:19, 497:5, 499:6,
536:3, 536:6
518:18, 518:20, 524:18,
bet (1] - 515: 15 500:7, 501:7, 502:22,
apply[&J- 510:15, 532:13,
524:24, 528: 10
betrayed [2] - 516:21
508:10, 509:3, 510:2,
534:22, 534:23, 536: 10,
backdating [7] - 513:3,
batter1121 - 493:9, 504:12,
513:22, 516:24, 524: 18,
541:25
513:4, 516:7, 516:16,
504:14, 504:16, 514:14,
524:22, 525:10, 525:14,
appoint141-547:8, 547:11,
522:12, 524:19
514:15, 514:16, 518:9,
526:7, 526:10, 526:15,
547:13, 547:22
backgrounds 111- 514:10
523:24, 526:8, 547:12
526:24, 529:2, 530:1,
appreciate 111 - 550:3
backward [5] - 491 :5,
between [5] - 492:21, 495:9,
531:8, 531:11, 531:15,
approaches 111 - 504: 15
509:21, 509:22, 515:20,
526:20, 532:8, 536:11
531:17, 531:21, 532:6,
3
532:17, 533:18, 534:17, 552:23, 553: 1, 553:4, 539:22, 539:24, 540: 1, 549:3, 549:8, 549:12,
534:19, 534:20, 535:15, 553:7, 553:10, 553:13, 540:14, 540:16 549:15, 550:1, 550:4,
537:13, 541:24, 542:2, 553:16, 553:18 consideration 111 - 532: 11 551 :2, 552: 12, 553:20,
542:3, 543:3, 543:7, clerk [3] - 542:22, 542:25, considered 181 - 497: 17, 554: 1, 554:5, 554:9,
543:25, 546: 13 551:5 502:10, 504:17, 526:12, 554:11, 554:14, 554:16,
cases 131 - 502:24, 507: 19, client [2] - 491 : 19, 501 :8 532:7, 533:15, 534:20, 554:20, 554:25
526:14 clou 111 - 498:11 540:24 Court [2] - 489:22, 551 :3
CAT 111 - 489:25 closing [5J - 500:10, 513:12, considering 111- 534:21 court120J- 502:20, 514:11,
CATALANO 1121 - 489:18, 527:1, 527:4, 531 :10 conspiracy[4J- 507:14, 514:14, 518:9, 526:4,
506:22, 523:3, 545:5, cockamamie 111- 510:9 514:1, 520:24, 522:22 532:6, 532: 1 o, 533:23,
548:9, 548: 16, 549:24,
code [3J - 500:18, 500:19, contemporaneous 111 -
540:1, 540:17, 542:19,
550:2, 554:2, 554:13,
501:2 527:8 542:25, 543: 1, 543:4,
554:19, 555:2
color121 - 546:13, 546:16 contention [2] - 500:7, 502:5
543:6, 543:22, 546:1,
Catalano [6J - 490:4, 492:24,
colors 111 - 523: 19 contents 111 - 492:4
546:21, 552: 14
493:23, 501 : 1, 502:6,
coming [3J - 508:22, 520:7, continue [3] - 505: 1, 508:7,
court's 111- 554:17
549:19
547:24 547:5
courteous 111 - 550:2
Catalano's 111 - 491 : 1
commenced 111 - 518:5 Continued [3J - 530:5, 544:3,
Courthouse 111 - 489:5
Caucasian 111- 515:5
commences 111 - 548:4
545:8 courtroom [6] - 490:12,
causes 111- 531:17
committing 111 - 541 :6 continues 111- 504:1
530:3, 531:6, 534:5, 551:1,
Canter1a1- 492:12, 503:17,
common 111- 497:16 continuously 111 - 508:2
553:25
510:1, 512:9, 512:18,
communicate [2] - 542:24, contracted [31 - 500:5,
courts 111 - 518:8
512:19, 512:21, 529:8
543:1 500:8, 528:6
cover111- 524:15
center 111 - 492: 12
communlcaUon 111 - 542:25 contradicted 111 - 534:24
covered 111- 547:7
Central 15J - 489:6, 489:23,
community 111 - 532:8 contradiction 111 - 535:5
create [3J - 491:24, 493:17,
513:11, 513:13, 515:19
compared 111- 533:16 control 111 - 492: 11
528:5
certain 141- 514:9, 533:25,
compassion 121 - 528: 16, controls 111 - 532:5
cradenca111- 535:13
536:9, 540: 11
528:18 convenience 111- 510:22
credit 111 - 502: 15
challenges 111 - 523:21
compelled 111 - 546:22 conversation 111 - 499:4
creeds 111 - 523: 19
change 15J - 501 :15, 506:1,
compensate [2] - 540:8, convinced 111 - 542:8
crlmlnal 111 - 503:9
519:1, 522:2, 542:7
542:16 convoluted 111 - 492: 17
cross [4]-494:12, 497:25,
charactar111- 502:18
compensatory[8J- 503:15, cope 111- 504:11
533:22, 546:23
charge l8l - 492: 19, 525:6,
506: 11, 540:2, 540:4, copies 111 - 546:8
cross-examination 121 -
539:15, 543:24, 547:14,
540:10, 541:2, 552:6, copy 121 - 543:25, 546: 1 O
494:12, 533:22
549:4
552:16 copying 111 - 499:7
cross-examining 111 -
charged 111 - 500:23
complete121-492:7, 500:15 corporation [41 - 538: 12,
497:25
cheating 111 - 528:8
complimented 111-516:4 538:13, 538:14, 538:15
curious 111 - 529:9
check111- 548:19
computer [31 - 501 :3, 501 :4, corporations 111 - 532:9
CV-10-1245111- 489:4
chlldran 121 - 504:4, 504: 16
514:10 correct 121 - 498:7, 542:8
CYA[3J - 502:2, 502:4
chose 111 - 528:4
conceded 111 - 523:22 correctly 111 - 546:2
Cl 121 - 501 :23, 520: 1 O
concepts 111 - 522: 19 cost111-493:14 D
clrcla 111- 510:21
concerning [2] - 532:3,
costs 111- 516:5
damage 111 - 505:5
Circle [2] - 500:9, 527:23
534:18
counsel [9] - 490:24, 495:3,
damages [411- 503:13,
circled 111 - 510:24
concluded 131- 531 :9, 545:7,
508:8, 508:22, 508:23,
503:14, 503:15, 506:11,
circling 111- 510:21 555:3 513:6, 526:8, 527:15,
506:12, 539:14, 539:15,
circumstances 111- 537:18 conclusion [3]- 509:19, 531:22
539:21, 539:23, 539:24,
City 111 - 515:20 529:18, 541:21 couple [2] - 499:8, 526: 18
540: 1, 540:2, 540:3, 540:4,
civic 111- 491 :19 conduct [6] - 539:3, 539: 11, couraga111- 504:21
540:6, 540:7, 540:9,
clvll [2] - 531 :15, 532:17 541:7, 541:10, 541:12,
course 1131 - 500:24, 501 :5,
540:14, 540:18, 540:20,
clalm [BJ - 532:20, 533:5, 551:25
501 : 11, 501:18, 508:25,
540:21, 540:22, 540:23,
533:7, 536:2, 536:14, confiding 111 - 491 :9
509:4, 510:4, 515:3,
540:25, 541:3, 541:4,
539:6, 542:10, 542:13 confirm 111 - 499:24 517:16, 518:13, 520:9,
541:5, 541:8, 541:9,
claims [7] - 532:18, 535:16, confirms 111 - 518:21 521 :3, 542: 12
541:14, 541:15, 541:17,
535:23, 536:1, 536:7,
conflicts 111 - 531 :25 COURT[41J-489:1, 489:12,
552:5, 552:6, 552:8,
536:9, 542:14
confusing 111 - 546:9 490:2, 490:5, 490:10,
552:16, 552:17, 554:7
classic111-496:17
confusion 121 - 546: 11, 490:13, 505:8, 506:21,
dark 111 - 499:21
clear [2] - 496:22, 526: 15
546:14 523:2, 525:18, 525:21,
data [1] - 516:16
clearly [2] - 492:18, 496:5
connection 111 - 500:23 529:18, 529:22, 531:1,
dated [4J - 495:16, 495:17,
CLERK [16] - 551 :6, 551 :9, conscientiously 111 - 543:20 531 :7, 545:3, 545:6, 546:2,
499:8, 528: 13
551:16, 551:22, 552:4,
consldar110J - 534:9, 535:6,
548:5, 548:7, 548:12,
dates 111 - 499:24
552:8, 552: 13, 552:20,
535: 11, 536:4, 539:21,
548:14, 548:17, 548:25,
4
days [31 - 499:8, 507:1, deposition [8]- 492:14, 539:11 earning 111- 519:12
517:25 492:23, 493: 16, 494: 13, discuss [3]- 530:1, 536:12, earnings 111- 540: 16
de1s1-492:12, 503:17, 494:23, 525:25, 526:3, 542:3 eaaier111- 547:19
510:1, 512:9, 512:18, 527:25 discussed 131 - 503: 11, EASTERN [11 - 489:1
512:19, 512:21, 529:8 depression 111 - 504:2 513:19, 517:5 easy 111- 520:3
deaf111-515:13 described 111 - 534:14 discussion 121 - 495:9, 542:2 economic [2]- 503:14, 554:7
deal 111- 523:8 descriptions [21 - 499:21, discussions 111 - 522:22
effect [1] - 533:2
dealt111- 532:10 501:20 dismissed 111- 512:15
El 111 - 496:5
decide 1121 - 503: 14, 529:3, deserve121- 514:14, 518:8 dispute 111 - 507:24
eight 131 - 515:25, 525:4,
533:19, 534:10, 537:20, deserved 121- 514:15 disputed 111 - 495:6 525:7
539:17, 539:20, 539:21, deserves 111 - 514: 14 disregard 111- 541:10 either16J - 495:10, 532:14,
540:1, 540:13, 540:17, deserving 111 - 505: 13 disregarded 121 - 534:1, 532:25, 533: 12, 542:22,
547:16
desire 111 - 542:20 534:4 548:24
decided [2] - 495:5, 532:7
detail 111 - 535:8 distress 111- 503:16 element 13J - 542: 10, 542: 13,
deciding 151 - 534: 1, 534:7, deter111- 541:7 DISTRICT l3l - 489:1, 489: 1, 543:17
534:8, 535:3, 535:11
determine [-41 - 505:3, 489:12 elements 121- 531:17,
decision [23] - 491:16,495:7,
536:15, 536:17, 539:8 disturbing 111 - 497:11 532:18
496:16, 500:2, 503:5,
determined 111 - 539:6 DJ 1-4]-500:16, 500:17, eliminate [31 - 495:21,
503:8, 534: 11, 536:25,
difference 111 - 525:7 518:12, 528:11 501:13, 513:8
537:4, 537:6, 537:8, 537:9,
differences 111- 536:11 doctor 111 - 497:8 emotional 141- 503:16,
537:14, 537:22, 537:24,
different 121 - 522:4, 535:8 document [31 - 500:2, 513:5, 505:2, 505:4, 540:14
538:2, 536:5, 542:1, 542:8,
differently11- 533:7, 535:9, 524:21 emotions 111- 505:16
543:16, 551 :12, 551 :19
535:10, 537:17 documentation 111 - 522:25 employed 111- 517:17
decision's [2] - 499:10,
difficult 111 - 504:24 documents 110J- 490:17, employee 111 - 537:21
499:18
dining [6] - 499:13, 513:13, 500:11, 508:2, 510:5, employees [4] - 538:12,
dedicated 111 - 504: 18
515:18, 517:14, 519:7, 510:19, 518:25, 523:3, 538:15, 538:16, 538:18
deem 111- 532:1
538:20 524:13, 524:17, 524:22 employer [2] - 535:20,
defendant 1111 - 490:20,
dinner 111 - 503:22 donating 111 - 491 :8 537:20
506:21, 537:8, 537:16,
direct 161 - 493:21, 493:24, done171-492:5, 524:7, employer's121- 537:19,
538:2, 538:9, 538:13,
523:17, 533:21, 546:23, 527:2, 527:23, 528:1, 538:3
539: 1, 541 :6, 548:25,
554:22 534:25, 554:7 employers 111 - 505:23
551:23
director 121 - 496:2, 538: 19 doubt [41 - 500:3, 503:9, employment [2] - 535:17,
defendanrs 111 - 496: 18
disabilities 111 - 523:20
528:5, 529:5
537:6
Defendants [2] - 489: 10,
disability [331 - 491: 13,
DOUGLAS [2] - 489: 15,
employs 111 - 523: 19
489:18
491:14, 491:15, 497:3, 489:18 EMT[11 - 508: 17
defendants [16] - 491 :4,
503:4, 503:6, 527:20, down [5]-497:5, 511:18,
ends 111- 526:1
491:23, 503:24, 504:7,
535:18, 535:22, 536:20, 513:12, 523:6, 524:10
entered 111- 514:1
505:14, 505:18, 532:15,
536:24, 537:2, 537:3, downright111- 500:6
enters 131 - 490: 12, 531 :6,
532:19, 534:22, 535:23,
537:5, 537:12, 538:7, draft[2]- 548:9, 548:10
551:1
535:25, 536:3, 536:4,
538: 10, 538: 11, 538:25, draw [2] - 500:5, 532:1
entire [2] - 491 :22, 496: 1
538:21, 539: 19, 542: 11
539:1, 539:7, 539:9, dream 131 - 503:18, 512:18, entities 111 - 532:9
defendants' [8] - 500:4,
551:12, 551:18 512:25 entitled [9] - 532: 11, 532:12,
533:8, 533:12, 537:13,
Disability111- 535:19 drug 111 - 528:7 539:19, 539:20, 539:22,
537:14, 538:5, 538:8,
disbelieve 111 - 535:1 during [3] - 499:25, 541 :25, 540:5, 540: 13, 542:4,
541:10
disclose 111- 497:22 542:23 552:5
defense [2] - 495:3, 526:8
disclosed 141 - 494: 11, duties 141 - 519:4, 531 : 14, equal 141 - 532:6, 532:8,
define 111- 531 :14
495:14, 495:23, 503:2 538:17, 553:23 532:9, 532: 11
degrees 111 - 522:4
disclosing 111 - 502:6 duty 151 - 491:19, 531:20, equals 111 - 532: 10
Del [4J-511:1, 511:3, 511:6,
discovered 111 - 506:25 542:11, 542:14, 543:19
Eric 111- 518:14
511 :21
discriminate 111 - 535:21
errors 111 - 538:3
deliberates 111 - 550:5
discriminated 1s1 - 524:9,
E ESQ[SJ-489:15, 489:15,
deliberating [21 - 547:6,
526: 11, 535:24, 551: 11,
e-mail 1131 - 499:6, 499: 19,
489:18, 489:19, 489:19
548:3
551:17
essential [31- 532:18,
deliberation 111- 507:18
dlscrlmlnaUng 111 - 538:25
499:23, 501 :23, 502:2,
542:10, 542:13
deliberations !6J - 531:19,
dlscrlmlnaUon [13J - 491:13,
502:22, 520:19, 521 :1,
essentially111- 507:23
542:4, 542:24, 547:23,
497:2, 497:3, 500:24,
521 :3, 524: 14, 526: 12,
establish 131 - 532:20, 539:5,
529:15
547:25, 548:4
536:14, 536:17, 536:21,
e-mails 111 - 522:9
542:9
delighted 111- 523:14
537:25, 538:5, 539:2,
established 111- 542:13
demonstrates 111 - 500:3
539:4, 551 :24, 552:1
early 111- 520:14
esteem 111- 505:15
denial 111- 503:1
discriminatory [2] - 537:22,
earned 111- 509:25
Case 2:10-cv-01245-LDW-ETB Document 72 Filed 08/02/12 Page 72 of 79 PagelD #: 119l
5
evaluations [2] - 517:2,
F
Fifth 121 - 489:16, 489:20 friend [9] - 491: 10, 496: 14,
518:24
Evanov14J-510:20, 511:22,
fabrication 121 - 524:13,
figure [11 - 492:22 496:22, 497:17, 502:11,
511:24
524:22
filed [1] - 500:23 519:23, 523:13, 523:21
evenly 111 - 533: 1 o
face 131 - 494:9, 495:1, 526:5
filled [11 - 491 :25 friends 131 - 502:9, 509: 15,
event [11 - 535:9
facilities [11- 513:13
final [1J - 524:7 523:15
events [1J - 534:14
fact 111] - 496:24, 500:8,
flnally [11 - 549:24 front [11 - 528:3
evidence [54J-490:17,
503: 1, 507:2, 509:21,
financials151- 493:1, 493:7,
FU [11 - 525:5
490:18, 497:21, 497:22,
513:25, 516:22, 522: 10,
509:19, 523:4 Fulbrlght [11 - 489:20
499:5, 500:6, 501:7, 501:9,
524:15, 525:1, 535:7
finders [11 - 496:24 fulfill [1]-541:18
503:3, 507:6, 528:8,
factor1111- 491 :16, 503:5,
fine [41 - 523:14, 545:4, fundamental [1J - 505:17
529:13, 531:8, 531:21,
503:7, 536:24, 537:1,
549:7, 554:15 future [51 - 539:25, 540:12,
531:25, 532:1, 532:2,
537:3, 537:7, 539:7, 539:9,
finish [1J- 519:25 540:16, 541:6, 541:7
532:3, 532:4, 532:19,
551:12, 551:18
fire l6l - 491: 16, 510:6,
532:20, 532:22, 532:23,
factors [3] - 515:6, 534: 12,
514:7, 514:24, 515:11,
G
533: 1, 533:2, 533:4, 533:6,
535:11
521:22
533:8, 533:10, 533:15,
facts [281 - 506:23, 507:3,
fired [13] - 491 : 11, 491 :24,
gameq11- 512:11
533:19, 533:23, 533:25,
507:9, 507: 11, 507:16,
496:12, 496:21, 498:6,
garnered [11 - 507:21
534:2, 534:3, 534:6, 534:9,
509:12, 514:20, 514:21,
502:23, 503:24, 515:1,
Gaughran [11 - 499:7
534:20, 538:4, 539:17,
515:7, 517:25, 518:4,
515:2, 515:3, 515:22,
gay [1] - 528:7
541 :24, 542:2, 542:11,
518:18, 524:8, 524:12,
527:6
geared [1J- 517:13
542:14, 543:21, 546:4,
524:16, 524:23, 525:11,
first [181 - 490:20, 490:23,
gee [1] - 509:9
546:6, 547:21, 548:1,
526:6, 526:14, 531:21,
491 :3, 492: 1, 492:9, 505:9,
general [61 - 500:20, 501 :12,
548:12, 548:13, 549:9
531:22, 532:4, 532:13,
513:5, 521 :17, 527:16,
503:19, 513:8, 531:14,
exactly l2l - 494: 19, 494:22
533:20, 533:24, 534: 1,
527:19, 527:22, 527:24,
531:18
examination [3J - 493:21,
534:8, 541 :24
531 :13, 547:8, 547:10,
gentleman [1J- 519:17
494:12, 533:22
failed [2] - 540:20, 542:9
547:16, 547:21, 554:9
gentlemen [81 - 490:25,
examined [11 - 548: 17
failure [3] - 496:20, 504:2,
firsthand [1J - 491:21
505:25, 506: 18, 529: 10,
examining [11- 497:25
504:3
fiscal [11 - 492: 11
529:11, 529:12, 552:14
exceed [11 - 540:21
fair [41 - 505: 11, 507:5,
five 131 - 505:8, 522: 19, 523:2
gesture [11 - 522:5
except [11 - 543: 1
524:11, 537:11
FJ [2] - 523:11
gigantic 111 - 523:6
exceptionally [1] - 509: 18
falrty [1] - 542: 15
flavor[1J - 546:18
given 131 - 539: 18, 542: 1,
exchange [11 - 542:5
faimen [11- 505:17
flippant111- 522:18
543:21
excluded 111 - 534:4
faith [2] - 504:9, 538:3
flummoxed 111 - 512:2
glutton [11 - 549:21
exclusive 111 - 537:6
false [11- 492: 13
folks [51 - 496:11, 497:6,
goal [1J - 519:1
excuse [4J - 513:12, 515:12,
falsehood [11 - 535:6
506:5, 506:8, 526:9
goatee 111 - 515:5
525:12, 529:12
falsehoods [11 - 496: 19
follow [2J - 547:16, 547:18
goofy [1] - 514:2
excused [11 - 553:21
family [5J - 502:9, 502: 1 o,
followlng 131 - 493:22,
govern [1J - 531:14
Exhibit (29] - 492:2, 492: 18,
504:4, 504:9, 504:25
495:22, 534: 13
governs [1J - 531:11
493:4, 493:5, 493:6, 493:7,
far[1J - 513:13
food 111-547:12
great [2] - 523:25, 524:6
493:13, 495:15, 495:20,
fast 11] - 503: 12
foreman [21 - 547:9, 551:6
Great [11 - 524:2
495:22, 496:4, 496:5,
fate 11] - 529:3
FOREPERSON [6] - 551 :8,
greater E4l - 532:22, 532:24,
499:6, 500:16, 501:10,
Father's 111 - 504: 15
551: 15, 551 :21, 552:3,
532:25, 535: 13
501:17, 501:23, 502:7,
fatigue [1J - 504:2
552:7, 552:11
grew [1J - 515:16
503:25, 519:21, 521:17,
favor [111- 503:10, 506:10,
foreperson [41 - 547:9,
grips [1] - 504: 10
525:5, 527:9, 527:11,
529:20, 532: 12, 533: 13,
547:13, 547:22
groups 111 - 512: 14
528:11, 528:12, 551:4
537:13, 538:8, 538:11,
forget [1] - 535:4
guess [41 - 525:22, 525:24,
exhibit [11 - 528:12
540:25, 543:20, 552: 15
form 111 - 530: 1
526:1, 537:14
exhibits 131 - 495:15, 501 :18,
Fax [1] - 489:23
former [11 - 496:22
gun [2] - 502:22, 516:2
533:23
FCRR [11 - 489:22
formulatlon [11 - 522:24
guy[2] - 515:16, 524:3
Exhibits 111- 527:7
fear [11 - 543:20
fortunately [1] - 496:23
expenses [11 - 525:6
feature [11 - 510:2
forward [3J - 495:20, 499: 15,
H
expert121 - 514:12, 518:19
federal [3] - 514: 11, 518:9,
526:25
half [11 - 499:2
explain [1] -492:14
535:18
forwards [1J - 496:16
explored 111 - 509:6
Federal [11- 489:23
four[121- 495:4, 495:5,
hallways [11 - 505:20
extension [1J - 514:22
feelings [2] - 504:2, 504:3
495:9, 507:1, 508:15,
hand 18]-516:9, 519:11,
eyes [1] -491:10
fall [21 - 503:20, 513:4
513:18, 514:3, 517:3,
522:12, 522:13, 522:14,
fallow 111 - 542:6
517:25, 518:21, 520:24,
529:4, 529:7, 537:9
felt 11] - 522:5
522:19
handwriting [21 - 510:24,
511:5
few 121 - 500:24, 543: 14
Francis [1J - 512:24
happy[1J- 512:16
frankly[2]- 519:19, 523:14
6
hard [2] - 503: 18, 509:25 HONORABLE [IJ- 489:12 instead [2] - 528:5, 537:6 537:19, 538:3, 554:3
hard-earned [11- 509:25 hope13J - 514:18, 518:10, INSTIT\JTE [11 - 489:7 July [11 - 516:21
hardworking [6] - 504:18, 525:14 instruct [5] - 531 :11, 531 :16, jumped [1] - 504:20
515:16, 515:17, 523:18, hopefully [II - 500:9 532:13, 538:15, 538:19 June [11 - 489:9
524:3, 525:8 hoping [11 - 509:8 Instructed [11 - 540: 15 Juror [41 - 552: 18, 552:20,
harm [11 - 503: 16 horrible 111 - 515:9 instructions [9] - 510:14, 552:23, 553:4
head [41- 491:8, 504:23, horribly 111 - 504:23 510:15, 525:12, 531 :12, JUR0R[8]- 552:19, 552:22,
515:18, 547:3 hour [11 - 499:2 531 :13, 531 :18, 536:10, 552:25, 553:3, 553:6,
health 171- 502:17, 521 :19, household [1J - 504:23 536:19, 542:21 553:9, 553:12, 553:15
521 :23, 522: 1, 522:3, HR [5] - 499:7, 499:20, insulting [11 - 522:21 juror [41 - 553: 1, 553:7,
528:19, 529:1 499:23, 500: 13, 528:23 Integrity [11 - 502: 18 553:10, 553:13
hear [101- 509:13, 515:24, HR's [11 - 499:21 intelligence 121 - 505: 16, jurors [4J - 491: 19, 542:6,
520:4, 520:9, 525:22, human [12] - 504:19, 512:16, 534:15 553:23, 554:22
525:24, 526:2, 542:20,
520:20, 522:6, 535:19, Intentional [2] - 491: 13, JURORS 111- 553: 17
546:17, 549:16
536:2, 536:7, 536:8, 535:6 Jury [3J - 490: 12, 530:3,
heard (141 - 492:4, 503: 16,
536:15, 538:22, 538:24, intentionally [5] - 523: 10, 531:6
504:8, 506:19, 507:1,
539:13 535:21, 535:23, 551: 11, JURY [6] - 551 :8, 551: 15,
507:2, 509:14, 510:7,
humanitarian 111 - 522:5 551 :17, 551 :23 551:21, 552:3, 552:7,
510:15, 526:6, 526:7,
hundreds 111- 517:25 lnterest[1J- 534:16 552:11
534:5, 546:24, 547:4
hurt 111 - 521 :21 interesting Ill - 526:25, jury [281 - 489: 12, 490:2,
heart [1J - 505:3 527:6, 527:7 490: 11, 490:25, 491: 17,
held [11- 536:16
I
Intravenous [11 - 528:7 505:25, 506:19, 507:17,
help l31- 496:3, 504:9, 516:1 involved [3] - 496:5, 522:23,
510:22, 514:9, 522:20,
herpes [1J-515:14
ill [1(-541:12
534:18
529:12, 531:2, 531:14,
herring 111- 500:15
Immaterial [11 - 546:5
Irrelevant [2] - 514:24,
536:10, 543:2, 547:10,
hesitate [11 - 542:7
immediately 111 - 547:13
527:21
548:4, 549:22, 550:5,
hlmself[4J- 504:4, 515:14,
importance 111 - 531 :23
Islip [51 - 489:6, 489:23,
551:1, 551:3, 551:7,
515:18, 516:21
Important [111 - 492:5,
513:11, 513:13, 515:19
552:12, 552:14, 553:18,
hire [2J - 517:10, 519:8
497:21, 499:5, 507:19,
issue [11 - 554:7
553:20, 553:25
hired 111- 516:25
510:1, 524:21, 535:7,
issues [2] - 523:16, 543:21
justify l31 - 492:10, 496:23,
hit [1] - 491 :7
536:11, 547:8, 547:17,
ltallan 111 - 515:4
500:12
HIV [55] - 491 :9, 494:11,
548:19
ltaly[2]- 520:1, 522:14
justly111- 542:16
494:15, 495:14, 495:24,
Importantly [11 - 539:24
item [11 - 521 :24
497:15, 497:23, 498:9,
impossible[11- 520:19
K
499:9, 500:5, 500:8,
impress [1J - 531 :23
J
501 :25, 502:9, 502:23,
incident 111 - 508: 11
keep 111 - 535:4
503:2, 504:7, 506:25,
Include [2] - 540:9, 542: 1 Jablonsky [41 - 501 :24,
key[1]- 502:10
507:5, 507:12, 508:12,
including 111 - 534: 13
520:12, 520:25, 528:22
kind [11 - 520:8
508:14, 509:12, 510:4,
inconsistencies [6J - 496: 18, Jaworski [11 - 489:20
knOWS(4] - 516:12, 516:13,
510:8, 510:16, 511:7,
496:19, 503:1, 517:23, job 1191 - 496: 14, 499:20,
520:12, 526:8
511 :17, 512:10, 512:15,
526:15, 529:17 501 :20, 503:18, 504:11,
513:25, 514:17, 514:22,
increase [11- 528:16
504:24, 508:4, 508:6, L
514:25, 515:6, 515:8,
Increased Ill - 502: 12,
510:8, 510:11, 512:7,
lack 111 - 532:2
519:17, 519:23, 520:9,
502:15, 528:24
512:9, 512:18, 512:25,
ladies [2] - 490:25, 529:10
520:22, 521 :12, 521 :13,
indicate [7] - 506:23, 514:21,
518:17, 518:22, 520:1,
lald [11 - 528:2
521 :21, 523:9, 524: 16,
515:7, 518:4, 518:18,
520:6, 525: 15
language [1J - 496:7
525:1, 526:12, 527:17,
524:8, 524:24
jobs [3] - 491 :24, 491 :25,
lapse [11 - 535:5
527:20, 527:21, 528:6,
lndlvldual [51 - 489:8, 489:9,
499:21
large [11 - 505:14
529:15, 535:25, 536:20,
535:21, 538:21, 539: 1
Joe 111 - 549: 17
last [8] - 492:3, 506:6, 506:8,
536:22, 536:23
individually l21 - 538:24,
joined 121- 520:12, 520:25
506:9, 519:6, 519:11
hold [11 - 507:7
539:12
joins [11- 549:20
late [41 - 507:24, 507:25,
home [41- 508:13, 511 :11,
infer 111 - 506:23 Judge 171 - 503: 14, 506:8,
523:22, 523:23
511 :19, 511 :21
inference [1J - 512:10
510:14, 527:19, 532:13,
Laura 111 - 504:9
honest[1J- 504:19
Inferences [41 - 507: 19,
541 :24, 554:2
law [211 - 529:23, 531: 11,
Honor [16] - 490:24, 510:21,
507:20, 512:10, 532:1
Judge [4J - 524:7, 545:2,
532:10, 532:13, 535:15,
525:17, 529:21, 548:6,
information [11 - 499: 16
549:25, 553: 18
535:20, 536:2, 536:7,
549:2, 549:7, 549:11, Informed [11 - 520:8
JUDGE 111-489:12
536:8, 536: 15, 536:20,
549:14, 549:18, 554:6, injuring [11 - 541: 13
Judge's [11 - 525:11
537:20, 538:22, 538:24,
554:13, 554:15, 554:18, injury [2] - 505: 13, 540:8
judges 111- 531 :22
539:13, 539:15, 539:18,
555: 1, 555:2 innocence [11 - 535:5
judgment[4J- 537:15,
541 :25, 543:24, 546:7.
7
548:2 542:6, 546:22 mechanical [11 - 489:24 motions [21- 554:1, 554:21
lawa121-536:10, 536:11 llatened [11 - 506:7 medlcal l2l - 502:8, 503:25 moUvated [2J - 537:24, 538:9
lawsuit [11 - 518:5 live [11- 505:1 member [11 - 543:2 motivating [111 - 491: 15,
lawyer [41 - 497: 13, 508:25, logical [11- 514:22 members [1]-491:17 503:4, 503:7, 536:24,
509:9, 510:12 Lombardi 121 - 489:22, memo [18] - 493: 12, 493: 14, 537:1, 537:3, 537:7, 539:7,
lawyers [BJ - 490:16, 506:7, 490:25 495:19, 498:1, 500:13, 539:9, 551:12, 551:18
509:4, 533:24, 534:2, look [231 - 493:2, 493:21, 500:16, 500:18, 501:20, move [2] - 490:22, 495:20
543:12, 543:24, 546:15 494:8, 495:1, 498:1, 505:3, 513:15, 513:17, 516:11, moved 121 - 503:7, 537:8
lay121- 517:11, 528:3 505:20, 507: 16, 507: 18, 516: 15, 517:9, 520:21, moving [1]-493:9
LOW [11 - 489:4 507:20, 509:18, 514:12, 524:24, 525:25, 527:8 MR [38J - 490:3, 490:24,
lead [11 - 537: 15 516:22, 520:10, 524:20, memory[2]- 534:15, 535:6 505:10, 506:22, 523:3,
learned [81 - 509:11, 509:12,
528:6, 529: 11, 529:13, memos [6]- 500:13, 501 :10, 525:16, 525:19, 525:22,
509:13, 510:3, 510:16, 529:17, 529:19, 549:6 508:3, 514:8, 515:23, 529:19, 545:2, 545:4,
514:23, 520:19, 521 :2 looked [11 - 504:22 515:25 545:5, 548:6, 548:8, 548:9,
learning 121 - 491 :9, 511 :23 looklng 111-547:2 mental [IJ- 540:15 548:10, 548:13, 548:15,
learns [51- 508:12, 510:23, loslng [11- 512:9 mention 171 - 493:5, 495:9, 548:16, 548:23, 549:1,
510:25, 511 :17, 520:14 loss [4J - 492: 13, 504: 11, 500:14, 500:19, 501 :11, 549:2, 549:7, 549:11,
least111- 538:10 523:6, 540: 10 501 :12 549:14, 549:18, 549:24,
leave[31- 506:18, 512:25, lost [2] - 539:25, 540: 16 mentioned 111 - 500: 17 550:2, 554:2, 554:6,
553:21 love [11 - 503:20 merits 121 - 543:3, 543:7
554:10, 554:13, 554:15,
leaves [3J - 501 :4, 530:3, lunch [2]- 547:24, 549:16 message [41- 505: 18,
554:18, 554:19, 554:24,
553:25 lylng [5J - 493:20, 495:2, 505:22, 506:1, 506:15
555: 1, 555:2
left [7] - 497: 10, 505:8, 516:1, 516:9, 516:22 met [11 - 498:25
muHiple 111 - 515: 14
512:19, 512:21, 516:25, metadata [2] - 514:12,
must[241- 506:19, 512:16,
523:2, 543:25
M
518:19
514:25, 532:13, 533:5,
legal [1J - 531:16 MICHAEL 111 - 489: 15
533:12, 534:8, 534:10,
Lan [11- 500:13
mail [14] -497:10, 499:6,
middle [11 - 511 :4
534:22, 536:4, 536:15,
length [11 - 532:25
499:19, 499:23, 501:23,
might l2l - 501 :2, 549:21
536:21, 537:2, 537:12,
LEONARD [2] - 489:8,
502:2, 502:22, 520:19,
million [14] - 506:3, 506:10,
537:13, 538:1, 538:7,
489:12
521:1, 521:3, 524:14,
506:11, 506:13, 510:6,
539: 11, 539: 15, 540:6,
less [11- 506:14
526:12, 529:15
510:10, 512:6, 514:17,
541:15, 541:16, 542:8,
Levittown [1J - 515:16
mails [11 - 522:9
515:2, 515:21, 518:10,
543:15
male [IJ - 547: 10
liability131- 503:11, 536:17,
mallclous [2]- 541 :10,
519:15, 525:5, 525:7
538:21 mind [7] - 491 :24, 499: 1, N
541:12
liable[5J- 536:16, 538:24,
man [2] - 502:18, 523:18
511 :25, 516:12, 519:20,
name [11- 501:12
539:2, 539:12, 551:23
management [11 - 519:2
533:16, 535:4
narrow [11 - 509:5
llar [3J - 491 :3, 491 :20,
manager [51 - 500:20,
minds [IJ - 533:3
national 111 - 523:20
493:19
501:13, 503:19, 504:6,
minute [11 - 529:22
near[1J- 512:11
lie [51- 493:1, 493:10,
509:16
minutes [Bl - 505:8, 523:2,
nearly[11- 533:5
502:15, 508:9, 514:2
manager's [11 - 513:8
527:16, 529:24, 529:25,
necessary 111 - 542:23
lied l6l - 493: 1, 493:3,
manner[11- 534:15
530:2, 543:14
need [41- 498:12, 528:19,
523:10, 525:23, 525:24,
map [1J -547:18
mirrors [2J - 516:3, 518:2
537:4, 539:21
526:2
March [2] - 521:20, 522:2
misread [11 - 493:1
needed [6] - 498:10, 498:14,
lies [51 - 492: 1, 502:25,
marked [1J - 551 :3
mistake 131 - 492:25, 511: 12,
498:15, 498:18, 498:22,
508:10, 526:16, 529:19 523:8
Marriott [11 - 512:23
520:23
life131-505:2, 513:21,
massaging [11 - 508:8
model [IJ- 504:17
negligent [1] - 538:3
523:21 Monday[2] - 521 :18, 521 :25
mater [11 - 503:20
NEIL [11-489:19
llght [3] - 534:20, 546:14,
math [11 - 492:22
money [16] - 496: 11, 505:4,
never [8J - 491 :25, 495:7,
546:16 506:5, 506: 13, 509:25,
497:12, 501:7, 504:25,
matter151- 515:23, 519:19,
lightly [11 - 491 :20
534:18, 555:3
510:10, 513:2, 519:10,
507:12, 515:1, 515:22
llghte [1] - 525: 16
matters [11 - 539:25
519:12, 522:9, 525:15,
new [2]-491:24, 501:19
likely [6] - 497:6, 497:9,
526:1, 528:16, 529:1,
Maureen [1J-499:7
NEW [2] - 489:1, 489:7
497:14, 503:8, 532:21, 542:15, 547:12
New [7] - 489:6, 489: 17,
533:17
mean [21 - 527:3, 532:24
Monster.Com [11 - 501 :21
means [7] - 513:22, 518:5,
morning [31 - 493:25, 494:4,
489:21, 489:23, 515:19
limit[1J- 503:12
532:21, 532:22, 533: 15,
news [1J - 497:11
limits [11- 490:21 520:14
536:9, 543: 16
next[111-499:15, 501:3,
Line [21 - 500:9, 527:24 Moses [11 - 505:21
507:25, 511 :22, 512:3,
meant111- 516:2
lines [SJ - 511: 15, 517:22, moat [31 - 497:20, 507: 19,
512:4, 515:24, 524:10,
measure [11- 539:23
524:9, 524: 12, 524:20 524:20
530:5, 544:3, 545:8
llaten [41 - 497: 16, 525:11,
measures [11 - 493:14
motion 121 - 554:2, 554:12
8
nice [11-523:12 497:23, 498:5, 498:24, owe [11- 513:23 525:3, 527:2, 527:6, 527:8,
nlght[11-511:16 498:25, 499:4, 500:12, owes [21 - 496:1, 513:21 527: 11, 527: 12, 533:20
NO [8] - 552: 19, 552:22, 501: 11, 502:7. 503:2, own [41 - 497: 13, 523:21, parfonnad 121 - 509: 13,
552:25, 553:3, 553:6,
506:25, 508:12, 508:21,
542:5, 542:9 523:8
553:9, 553:12, 553:15 509:12, 510:4, 510:23, performing [4]-491:18,
nobody [11 - 513:22
510:25, 511:1, 511:2,
p 493:2, 509:14, 509:17
nominal [5J -540:3, 540:18,
511:5, 511:10, 511:17,
p.m [2] - 551 :1, 553:25
perhaps [11 - 508: 17
540:21, 541 :2
511:25, 513:5, 514:23,
permit [11 - 537:14
none [41 - 500: 14, 507:3,
516:10, 516:13, 516:14,
page [141- 492:3, 493:22,
pannittad [1J - 540:8
507:10, 507:14
516:15, 516:17, 516:18,
493:23, 494:12, 497:24,
parson [12] - 493:20, 494:20,
nonsenslcal 111 - 525: 10
516:19, 517:9, 517:18,
498:3, 496:25, 517:21,
494:23, 499:7' 505:6,
normally [11 - 547:9
518:12, 519:2, 519:18,
517:24, 521 :17, 524:10,
508:16, 508:17, 510:17,
note [SJ - 542:22, 542:25,
519:19, 519:22, 520:5,
530:5, 544:3, 545:8
527:22, 528:23, 543:5,
543:8, 543: 12, 546: 11,
520:9, 520:10, 520:13,
pages [11 - 517:25
547:11
546:12, 546:15, 551:3
520:17, 520:18, 520:20,
pain [11- 540:14
parson's 111 - 535:22
notes [11 - 543: 14
521:2, 521:4, 521:16,
Paparazzi [11 - 512:24
personal [2]- 497:18, 497:19
nothing [111- 497:4, 502:16,
522:10, 522:23, 522:25,
paper 111 - 554:4
personally[1J- 537:16
505:15, 518:10, 519:16,
524:21, 524:24, 526:5
paragraph 151 - 492: 10,
parsons [31 - 509: 15, 532:9,
525:14, 526:19, 526:21,
OF [31 - 489: 1, 489:7, 489: 11
502:14, 519:6, 519:11
543:20
527:8, 527:10, 527:11
offensive [11 - 500:6
pardon [3J - 516:9, 516:24,
Ph [11 - 489:23
notwithstanding [11 - 554:3
offer [2] - 502: 19, 528:25
523:11
phone [31 - 494:18, 501 :5
November [21 - 516:11,
offered [11 - 534:9
parents [2] - 510:9, 525:8
phrase [11 - 533: 1
516:17
office 121 - 494: 1, 494:4
parents' [11 - 509:25
piece [11 - 499:5
numbar[12J- 512:6, 532:24,
otncer [11 - 527:22
part[SJ- 518:14, 520:24,
pieces [1J - 497:21
534:12, 547:20, 552:18,
official [2] - 489:7, 489:8
522:24, 523: 1, 532:22,
Pilar [31 - 508:5, 508:24,
552:20, 552:23, 553:1,
Official 111 - 489:22
534:18, 535:1, 538:10
513:20
553:4, 553:7, 553:10,
old [11 - 515:4
participated [2] - 539:3,
pillar111- 515:20
553:13
Old 111-515:19
539:10
PL [11- 511 :2
numbers [11 - 492:21
once [11 - 541 :23
participating [11 - 551 :25
place [101- 497:2, 499:4,
numerlcally [11 - 543:6
ona [191 - 491 :24, 496:9,
partlcularly [11 - 507:20
503:19, 503:20, 512:24,
numerous [11 - 518:24
500:14, 504:13, 506:4,
parties [5] - 531 :9, 532:6,
513:10, 513:14, 516:17,
nutshell [2J -518:21, 519:5
506:15, 507:2, 507:20,
532:8, 532:11, 541:20
519:3, 533:6
nutty [11 - 512:12
508: 11, 508:20, 510:23,
parts [11 - 531: 12
plain [11 - 491 :20
NYIT1191 -506:24, 512:15,
511 :24, 512:4, 517:2,
party [11 - 532:12
plalntlff [401 - 490:20,
512:25, 514:15, 515:19,
522:18, 523:15, 524:21,
pass 111- 531 :24
490:21, 490:23, 522: 11,
518:8, 525:9, 535:17,
540:2, 547:11
past [2] - 539:25, 540: 16
532:15, 532:17, 533:4,
535:25, 536:2, 538:13,
oops 111 - 522: 12
Paul [11 - 489:22
533:9, 534:21, 535:16,
538:20, 541 :1, 551:10,
open 131 - 543:4, 543:22,
pause [3J - 490:7, 531 :3,
535:23, 536:1, 536:13,
551:17, 551:24, 552:9,
546:1
548:21
537:2, 537:4, 537:10,
552:17
opening l9l - 491 :1, 492:24,
pay [1] - 521 :20
537:15, 538:1, 538:6,
NYlra [2] - 551 :12. 551: 19
495:3, 502: 1, 502:5,
paying [1] - 510: 1
538:23, 539:5, 539:17,
502:21, 506:22, 507:8,
pending [2] - 554:21, 554:25
539:19, 539:20, 539:22,
0
527:17
people [171 - 495:2, 495:4,
540:5, 540:7, 540:13,
openings [11-490:15
495:5, 495:9, 502:8,
540:17, 540:19, 540:20,
o'clock [2] - 519:24, 520: 14
opinion [41- 530:1, 542:5,
507:21, 508:8, 513:18,
540:25, 541:2, 541:8,
oath [5J - 492:17, 493:13,
542:7, 542:8
514:3, 517:3, 517:10,
542:9, 551:10, 551:16,
526:2, 526:16, 543:19
opportunity[1J- 534:13
523:12, 523:16, 523:19,
551:22, 552:5, 552:15
objections [31 - 534:3,
opposed [2] - 533:6, 533: 16
527:24, 535:4, 535:8
Plalntlff[6] - 489:5, 489:15,
548:23, 549:2
opposing [2J - 490:24,
perceived [141 - 491: 14,
495:15, 519:21, 521:17,
obscure 111 - 516:25
527:15
491:15, 503:4, 503:6,
528:12
observe [11- 534:14
opposite [11 - 533:8
536:23, 537:3, 537:5,
plaintiff's [BJ - 533:7, 536:8,
observing [11- 535:8
orally[11- 543:3
537:12, 538:7, 538:10,
538: 11, 539:6, 539:8,
obtaining 111 - 512:9
order [3J - 506: 15, 526:9
539:1, 539:7, 539:9,
540:24, 541:11, 541:16
obviously [11 - 554:3
original [11 - 507:9
551 :18
plaintiffs [11 - 536:21
occur 111 - 540: 11
origins [11 - 523:20
percent [2] - 496:11, 506:14
plan [11- 523:1
occurred [2] - 522:10,
otherwise [11 - 543:6
perfectly [11 - 545:2
plauslble [11 - 512: 11
524:14
outcome [1J - 534: 17
perform [11- 512:17
play [11 - 508:24
October[66] - 493:8, 495:13,
outright [11 - 492: 1
performance [141 - 500:11,
played [1] - 509:7
495:16, 495:21, 495:22,
outside [11 - 534:5
500:15, 507:24, 515:10,
Plaza [11 - 489:23
496:15, 497:7, 497:14,
overheard [11 - 507: 13
517:1, 518:24, 523:24,
pleasure [2] - 549:23, 549:25
9
plus [31- 510:7, 522:1 prompted 141 - 491 : 16, read 1121- 493:17, 494:13, relationship 111- 541:16
point [3] - 507:22, 543: 13, 503:5, 536:25, 537:3 524:2, 524:3, 526:17, relevant111- 531 :17
546:24 proof[3J- 521:16, 522:11, 542:19, 543:24, 543:25, relieved 111 - 553:23
points 121- 527:10, 547:7 532:16 545:2, 546:2, 546:7, remainder111- 505:2
pollce 111 - 527:22 prospective 111- 540:10 546:21
remedy 111 - 540:23
policy [41 - 497:4, 502: 13, prove 1211 - 495:4, 497:21, readbacks 111- 547:1 remember [2] - 490: 15,
529:6, 529:7 502:24, 503:6, 506:23, reading [2] - 546:22, 546:25
535:9
poll 111- 552:12 507:5, 507:21, 514:13, realize 111- 503:11
remind 111 - 541 :23
polled 111- 553:18
522:10, 522:12, 523:8, realized 111-515:6 reminded [31 - 511: 13,
poor [2] - 507:24, 525:3
526:9, 529:2, 532:21, realizes 111- 511 :12 511:14, 511:16
poorly 111 - 509: 13
536:21, 537:2, 540:20, really131- 497:5, 516:19, reminds 111- 512:4
portion [2] - 518:16, 535:15
551:10, 551:16, 551:22 528:13
ranted 111 - 503:21
portions [2] - 542:19, 542:20
proved 111- 533:17 reason 1131 - 491 :23, 501: 1,
reorganization [8J - 499:17,
position 1111-491:25,
proven 151 - 491: 14, 502:25, 513:20, 527:1, 537:6, 499:22, 514:8, 518:14,
500:20, 501 : 13, 501 : 14,
503:3, 551 :24, 552:5 537:21, 537:22, 537:23,
519:2, 519:3, 525:3, 527:3
501 :16, 513:8, 517:15,
proves 111- 513:16 537:24, 541 : 15, 542:24
repeated [2] - 542:18, 542:21
519:7, 521 :9, 535:14
provide [2] - 504:25, 520:8 reasonable [41 - 503:9,
repeatedly [2] - 508: 1,
position's 111 - 501: 19
proving 121 - 532: 18, 541 :8 532:2, 540:6, 541:16
525:13
positions 111- 526:16
pull 111- 496:13 reasonableness 111 - 534: 19
replace 111 - 519: 13
positive 1141 - 491 :9, 494: 11,
punish [31 - 505:24, 541 :5, reaaonably121- 540:7,
replacing 111- 517:19
494:15, 495:14, 495:24,
546:25 540:11
raplln 111- 499:23
497:15, 497:23, 498:9,
punished 111- 506:16 reasons 121 - 537:11, 538:6
reply111- 554:14
499:9, 501 :25, 502:23, punishment 111 - 549:21 rebuttal 111 - 490:21
report [31- 517:16, 517:17,
503:2, 524:16, 529:16 punitive 1141 - 506: 12, 540:2, recapitulate 111 - 533: 14 517:18
possibility 111 - 502:3 540:22, 540:23, 540:25, received 131 - 497:7, 533:23, reporter[2]- 542:19, 546:21
posslbl&l4J- 513:20, 541:3, 541:5, 541:8, 541:9, 552:14
Reporter 111 - 489:22
515:25, 536:8, 540:11 541:14, 541:15, 541:17, Recess 121 - 530:4, 550:5
reporting 121- 501:19,
possibly121- 512:13, 520:18
552:8, 552: 17
raceas 111- 554:17
501:22
post 111 - 515:20
purport111- 500:12 reckless 111 - 541: 1 O
repositioned 121 - 518:15,
posted 111 - 501 :21
purported 121- 526:19 recollection 111 - 532:4
518:16
postings 111 - 499:25
purpose 111 - 541 :5 recommend 111 - 495:22
reprehensible 111 - 528:9
pot 111 - 527:14
purposes 121- 541:13,
recommendation 111 -
representing 111 - 533:6
power [3] - 505:25, 506: 1,
541:18 495:21
request 161 - 495: 19, 495:20,
506:2
pursuant111- 510:8 recommended 111 - 495: 12
501:13, 506:9, 542:18,
preJudlce131-532:14,
purview111- 503:15 record 121- 500:7, 549:18 542:21
534:18, 541 :19
put 1111 - 490:21, 499:12,
recorded 111 - 489:24 required [2] - 503:5, 541 :3
preponderance 1111 -
505: 11, 511 :25, 513:5,
records [2] - 502:8, 503:25 resolve[2]- 531:25, 533:12
497:21, 503:3, 507:5,
514:8, 516:5, 516:14,
racover131 - 539:19, 539:20, resources 111 - 520:20
532:19, 532:20, 532:22,
517:23, 518:1, 518:3,
539:22 respect l6l - 492:24, 496:3,
533:1, 533:11, 533:14,
518:12, 519:20, 523:6,
recross 111 - 546:23 505:7, 523:16, 524:20,
542:10, 542:14
526:24, 533:7
recruitment [2] - 513: 10, 532:3
presented 121- 531 :9, 517:6 rnpectfully 111- 506:16
539:18 Q
rad [2]- 500:15, 546:16 respects 121 - 527:20, 527:21
president 111- 499:14
quallty 111 - 533:2
redirect 111 - 546:23 response 121 - 520:8, 522: 19
pretext 111 - 496:17
questioned [2] - 496:2,
Redlich 110J - 496:6, 513:24, rnponslblltty 131- 531:10,
prevalled 111- 536:13
527:25
517:11, 517:19, 519:4, 531:20, 541:23
private 111 - 503:21
questions 121 - 493:22, 534:3
519:8, 521:5, 521:7, 524:4,
responsible 111 - 538: 16
privilege 111 - 549:20
quite 111 - 525: 10
526:20
Reataurant111- 512:23
problem [2] - 501 :6, 522:6 rafer[3J - 513:16, 518:13,
result 121 - 491 : 11, 503:24
problems 111- 545:5
R
551:9
resume 111 - 500: 1
proceed 111 - 525:20 refers 111 - 533: 1
resumes 111- 490:1
Proceedings 111 - 489:24
races 111 - 523: 19 raflect111-541:19
resum6 111 - 496: 17
proceedings [31 - 490:8,
raise l2l - 496:9, 496: 11
regarding 151 - 497:8,
resum6a 111- 499:20
531 :4, 548:22 range 111 - 494:5 502:13, 529:7, 531:13,
return 121 - 529:8, 529:20
produced 111 - 489:25
rather 111 - 517:7 531:18
returns 111 - 500: 1
produces 111- 533:16
ratlonal 111 - 542: 1 regardless l2l - 533:22,
reveal 111 - 543:5
professional 111- 513:21
reach 111- 543:15 543:9
revenue 111 - 525:6
profit [4] - 492:20, 523:6, reached [31 - 496:14, 551 :4, ragrettably111- 519:17
revenues [2] - 506:3, 506: 14
525:4, 525:7
551:7 regroup 111- 521 :13
ravert111- 507:8
reaching 111 - 536:5 rejected 111 - 502: 19
10
review [11- 525:11 saved [I]- 519:10 seven 131 - 492: 11, 515:25, 500:9, 507: 13, 523:22,
ride [11- 508:15 saving [2] - 493:14, 526:1 522:19 523:23, 523:24, 547:11
ridiculous111-513:7 saw [5J - 500:11, 511 :24, several [11- 533:20 sometime 121 - 494:4, 507:14
rights [10J - 502:17, 535:20, 523:3, 527:9, 548:9 severance [7]- 502:12, sometimes 121 - 535:4,
536:2, 536:7, 536:8, scale 111 - 533:8 502:15, 502:18, 502:19, 546:17
536:15, 538:22, 538:24, scales [2] - 503: 10, 533:9 528:15, 528:17, 528:25 somewhat [IJ - 533:9
539:13, 541 :11 scars [11 - 505:2 Severaky [81 - 492:12, son [1J - 515:14
ring [11 - 497: 16 scholarships [11 - 525:9 503:17, 510:1, 512:9, soon 121 - 517:19, 549:16
ripped [11- 521:19 scleroals [11- 515:14
512:18, 512:19, 512:21, sorry [21 - 493:23, 522:5
rise [3J - 539:3, 551 :6, scope [11- 538:17
529:8
sort[11- 513:2
551:25
script [3J - 496:21, 496:22,
shaking [11 - 547:3
sought [11 - 533: 17
RIZZUTO 111 - 489:7 496:25
shall [11- 532:13 sounds [1]- 527:2
Rizzuto [62] - 491 :6, 491 :20, scurry[11- 524:15
shared [2] - 497: 18
span [1] - 549:22
492:1, 493:11, 494:1,
seated [BJ - 490:6, 490:13,
sheet[91- 547:15, 547:17, SPARBER [2] - 489: 19,
494:3, 495: 1, 496: 1, 496:3, 531:7, 548:20, 551:2,
548: 1, 548:5, 548:20,
549:2
496:21, 497:3, 497:7, 552:13
548:23, 549:5, 551:9
specialist[1J- 508:16
497:10, 497:12, 497:15,
second [BJ - 490:20, 491 :4,
sheets [11 - 547:20
specialists 111- 512:14
497:18, 497:25, 498:24,
500:21, 517:9, 531:16, shield 111 - 517:7 speclflcally[11- 536:14
499:7, 499:10, 499:19,
537:13
shift [2] - 527:13, 527:14
speculative 111 - 540:9
501 :24, 502: 11, 507: 11,
see [22J - 492:9, 495:15, shock [2] - 504:3, 526:4
spend 121- 514:16, 516:5
507:13, 508:1, 508:2,
496:6, 497:8, 501 :2, shocked [11 - 495:1
spent 111 - 527: 16
509:20, 510:4, 512:20,
501:10, 501:16, 502:14, short [3J - 490:21, 529:25,
spite [11- 541:13
513:11, 513:22, 514:15,
503:25, 508:2, 510:21, 541:22
spring [1] - 502:3
514:23, 515:11, 515:15,
511:22, 513:14, 514:13, shots [11- 527:15
St [11 - 512:24
516:2, 516:12, 516:14,
522:18, 522:20, 529:6, show [12] - 493:8, 496:10,
staff [11 - 519:3
516:18, 517:23, 518:8,
530:2, 547:2, 547:7, 501 :22, 508:9, 508:21,
stand 1s1 - 492: 16, 494:25,
518:23, 519:23, 519:24,
548:10 510:5, 510:18, 510:19,
504:21, 509:2, 526:10,
523:7, 523:14, 523:15,
seem [1]- 506:13 518:19, 537:4, 538:1,
532:9, 543:6, 543:10
523:18, 524:3, 525:23,
selection [11- 514:9 546:14
standards [3] - 534:22,
526:10, 526:20, 527:9,
self[2] - 505:7, 505:15 showed [41- 516:9, 523:11,
536:6, 536: 18
536:1, 536:16, 538:19,
self-esteem 111- 505:15 528:12, 528:16
standing [2] - 532:8, 538:4
538:23, 539:10, 551:23
selfof'apect [11 - 505:7 shown [11-491:12
start [-4] - 520:23, 547:22,
Rizzuto' [3] - 500:17,
send [211-499:16, 499:25, shows [41 - 492: 18, 493:7,
547:25, 548:3
500:22, 502: 14
505:18, 505:22, 506:1, 519:11, 524:2
startling [11 - 523:4
RMR 111 - 489:22
506:15, 520:19, 521:1, side [BJ - 516:25, 533: 1,
starts [1J - 546:22
road [11- 547:18
521 :2, 542:24, 543:8, 533:10, 533:12, 548:24,
state [8] - 535: 19, 536:2,
Robert [6J - 505:21, 513:21,
543:12, 546:8, 546:12, 549:1
536:7, 536:8, 536:15,
523:23, 524:1, 524:14,
546:16, 547:15, 547:19, Sidebar [2J - 545: 1, 545:7
538:22, 538:24, 539: 13
535:25
547:21, 547:24, 549:6, sidebar [21 - 543:23, 544:2
statement [3J - 491 : 1,
ROBERT [11 - 489:7
549:12 sides [11 - 533:8
492:13, 507:9
role [21 - 504:17, 531 :23
sending 141 - 499:20, 500: 1, sign [11- 528:24
statements [11 - 534:2
room 141- 499:13, 507:18,
549:4 signs [11 - 492:3
STATES [2] - 489:1, 489:12
517:14, 519:7
sense [111- 497:16, 498:23,
sllently 111 - 506:6
States [11 - 489:5
rules [2] - 531 :14, 539:18
499:3, 499:22, 501:9,
similari21 - 541 :6, 541 :7
stemming [11 - 525:3
running [11 - 515:20
501:14, 501:22, 505:16,
simple 111 - 491 :21
stenography [11 - 489:24
runs [11 - 501 :5 517:8, 517:20, 526:17
slmply[2]- 501:15, 532:21
sticks [2] - 514:19, 522:20
sent [3] - 500: 18, 501 :24,
sitting [-4] - 501:3, 504:19,
stiff[11- 515:17
s 549:8
507:25, 515:24
still [3]- 507:2, 517:17,
sales 16J - 491 :25, 499: 13,
separately [21 - 536:5,
six [31- 515:25, 522:19,
554:25
517:15, 518:15, 519:7,
536:18
549:22
stipulated [2] - 522:1, 533:24
519:8
September[12J - 493:7,
slightly[2]-503:10, 533:10
stop [11 - 546:25
salesperson [2] - 517:12,
499:8, 500:2, 500:16,
small [2] - 521:23, 535:8
store [11 - 504:6
517:13
501:17, 501:21, 513:15,
smoke[2]- 516:3, 518:2
story [9] - 508: 1, 510:9,
SAMANA [1J - 489: 19
517:3, 517:9, 518:17,
smoking [3J - 502:22,
511 :6, 511 :9, 511 :10,
sanitizers [51 - 522: 13,
518:20
513:15, 516:2
514:6, 521:1, 524:25
522:15, 529:4, 529:7
serious [11- 505:13
sole [2] - 531 :22, 537:5
sbicken [11- 534:4
sat [2] - 506:6, 507:1
services [4] - 509:20,
solely [2]- 535:13, 537:10
sbike [11 - 498:2
satisfied [11 - 547:1
515:18, 517:11, 538:20
solicited 111- 517:15
stripped [2]- 503:23, 505:14
save [11-491:7
set[2]-511:15, 548:13
someone [111- 491 :7,
strive [11- 504:18
setting [1] - 541 :15
491 :10, 496:1, 497:17,
11
students131-510:10, 525:9, team [11- 549:19 553:18, 553:20, 554:1, truly [1] - 543:20
554:20 tears [11 - 491 :1 O 554:5, 554:9, 554:11, trusted [2] - 491 :22
students' [2] - 509:25, TECHNOLOGY111- 489:7
554:14, 554:16, 554:20,
truth [8] - 490:19, 492:7,
510:10 ten [5] - 527:16, 529:22,
554:25 492:17, 496:20, 497:16,
stuff[2] - 523:10, 548:18 529:25, 530:2
therapist.I [1J - 512:14 509:6, 515:9, 527:5
stunning [1] - 508:11 ten-minute 111 - 529:22 thereafter[1J- 514:25 truthful [1J - 493:19
stupid [11- 514:2 term 111- 509:21 therefore [4J - 501 :3, 535:7, try [7] - 496:23, 504:7, 516:3,
subject [11 - 543:2 terminate [15] - 495:5,
535:9, 538: 1 518:2, 527:13, 528:6,
subject.I 111 - 528:1 498:18, 499:11, 499:18,
third [2] - 491 :6, 531 : 18 543:21
submit111- 506:16 503:8, 517:8, 536:25, Thompson [11 - 489: 16 trying 151 - 491 :7, 492:10,
subpoena [2] - 527:23, 537:4, 537:8, 537:10, three [18] - 491 :2, 504:4, 502:4, 527:13, 527:17
527:24 537:21, 537:23, 538:6, 504:16, 508:19, 509:11, tuition [11 - 509:25
substantive 111 - 492:9 551:13, 551:19 509:14, 510:18, 511 :14,
tum 111 - 525: 16
subatitute[11- 537:15 terminated [16] - 499:2, 511:16, 511:21, 511:23, two [241 - 491 :24, 492:20,
subtract [11 - 492:20
506:24, 507:4, 509:20, 512:4, 522:9, 523:12, 495:2, 497:20, 508:20,
suddenly [11 - 501 :24
509:22, 514:1, 514:21, 523:16, 531:12, 540:3
511: 1, 511 :3, 511 :4,
suffer[2]- 504:1, 519:9
515:8, 516:10, 519:4, throughout [11 - 522: 15 511:10, 511:12, 511:20,
suffered [3J - 492: 12, 505:5,
521 :8, 523:9, 525:2, throw[1J- 522:19 512:3, 513:9, 517:24,
523:20
529:15, 535:17 throwing 111 - 508:9 518:23, 519:7, 522:9,
suffering [11- 540:15
terminating [11- 535:24 timeline [2] - 516:22, 516:23 524:21, 535:25, 540:2,
sufficient [3] - 521 :5, 537:7,
termination [121 - 492:6, Up [2J - 503: 10, 533:9 549:22, 554: 13, 554: 15
541:18
492:10, 495:12, 496:4, utle [1J - 535:14 two-page [11 - 517:24
suggest [11 - 507:4
496:5, 498:21, 500:13,
today [7] - 508:25, 509: 10, type 131 - 497:2, 497:3, 540: 1
suggestion [11 - 539: 16
520:13, 526:18, 527:1, 510:13, 510:15, 520:22, typo [11 - 513:7
Suite 111 - 489:23
539:8, 539: 1 o
521:7, 521:12
sum 111 - 542: 15
terminations [11 - 496:23 together [41 - 514:3, 518:22,
u
summation 141 - 505:9,
test [1] - 508: 14 536:9, 546:4
uHlmately [2] - 491: 11,
507:2, 507:8, 524:11
tested [2]- 508:13, 511:8 took [8] - 492:16, 493:16,
summations 121 - 490: 14,
testified [41-491:11, 493:11, 494:12, 499:4, 508:17,
495:13
490:16
493:13, 527:18 516:17, 519:3, 533:6
unable [11- 533:11
summer [21 - 508:5, 511 :3
testifies [11 - 496:2 total [1] - 543:17
unanimous [3]- 543:15,
sums 111- 543:19
testify [31 - 513:22, 528:23, touching [11- 543:2
543:17, 543:18
supervisor [2J - 515:13,
535:9 tough [2] - 524:2, 524:3
unbelievable[1J- 516:7
515:24
testifying [11 - 534: 16 toward [1] - 541 :19
uncontradlcted [11- 509:12
support [6] - 496:8, 500:7,
testlmony[28] - 490:17, towards [2] - 503:7, 537:8
uncontroverted [2] - 503:17,
512:14, 518:7, 518:14,
491:22, 493:17, 495:25, trained [1J - 508:17
509:11
526:7
496:20, 498:4, 498:8,
training [2] - 497:2, 497:4
under [101- 493:13, 526:2,
supports [11 - 533:5
503:17, 504:8, 506:4,
Transcript [11 - 489:25
526:16, 536:1, 536:2,
suppose [11 - 501 :4
507:17, 519:13, 520:3,
transcript [61 - 494:13,
536:14, 536:20, 537:17,
supposed [6J -495:18,
525:12, 533:21, 534:3,
497:24, 511 :11, 511 :15,
538:21, 538:24
498:5, 509:9, 543:10,
534:7, 534: 10, 534:11,
518:1
underlined 111 - 511 :4
543:11, 543:12
534:19, 534:21, 534:24,
TRANSCRIPT [11 - 489: 11
undue [1J - 504:25
surfaced [1J - 507:15
534:25, 535:2, 535:12,
trap [1] - 513:4
u nfalr [11 - 537: 11
surprised [11 - 494:8
542:17, 546:17, 546:21
trauma [3] - 512:8, 512:9
UNITED 121 - 489: 1, 489: 12
surprising [11 - 497: 1
tests [1] - 497:8
treatment [11 - 520:23
United 111 - 489:5
surprlslngly [11 - 519:24
lliE [56] - 489: 12, 490:2,
Trlal [11 - 490: 1
university [11- 522:15
swears 111 - 492:3
490:5, 490:10, 490:13,
trial [7] - 493: 11, 497:24,
unlawful [3] - 535:20,
sword [11 - 517:7
505:8, 506:21, 523:2,
503:9, 509:11, 518:1,
537:25, 538:4
swore 111 - 492:7
525:18, 525:21, 529:18,
526:24, 541 :25
unlawfully [2] - 503:24,
529:22, 531:1, 531:7,
535:16
sworn [41 - 492: 1, 533:20,
545:3, 545:6, 546:2, 548:5,
TRIAL [11 - 489:11
unless [11 - 539:6
542:11, 542:14
trials [11 - 549:22
sympathetlc[1J- 519:18
548:7, 548:12, 548:14,
trick [3] - 508:23, 509:7,
unsatlsfactory[2J- 517:1,
548:17, 548:25, 549:3,
518:24
sympathy[4J- 532:12,
549:8, 549:12, 549:15,
518:3
untrue[1J- 528:4
532:14, 537:14, 541 :19
550:1, 550:4, 551:2, 551:6,
tricks [11- 510:12
unwise [1J -538:2
system [3] - 508: 19, 508:21,
551:9, 551:16, 551:22,
tried [6J - 493: 1, 500:4,
UPl36]-492:15, 492:16,
510:18
552:4, 552:8, 552:12,
500:12, 523:23, 528:15,
492:17, 492:22, 493:9,
528:19
T
552:13, 552:20, 552:23,
tries [3] - 492:20, 502:14,
494:24, 504:21, 508:1,
553:1, 553:4, 553:7,
528:5
508:15, 508:21, 508:22,
table 111- 504:19
553:10, 553:13, 553:16,
true [2J - 507:15, 528:18
509:2, 509:19, 510:18,
12
511:9, 511:25, 512:5, 499:15, 506:6, 514:16, 525:25, 527:9, 546:15
513:1, 513:5, 514:4, 514:6, 520:21 wrlleS (3] - 520:6, 521:5,
515:17, 517:9, 517:13, waakand [1J - 504:15 521 :11
518:12, 519:20, 521 :1, weeks [6J - 492:5, 500:24, writing 141- 515:25, 527:10,
521:19, 522:25, 523:10, 526:18, 549:23, 554:13, 543: 1, 543:3
524:17, 524:25, 526:1, 554:15 written [31 - 501 :2, 518:20,
543:19 weighs [11 - 533: 1 O 529:7
user [11 - 528:7 weight [41 - 531 :24, 533:2, wrongful 111 - 541 :7
usual [11 - 520:5 535:12, 535:13 wrote (1] - 498:2
Waatbury111- 515:19
v WEXLER[11-489:12 y
vacation [3] - 499:15,
whatsoever [2] - 507:4,
year[10J - 492:13, 492:19,
524:8
499:25, 529:9
wholel4J-495:16, 513:21,
496:11, 506:4, 506:15,
Valla [41 - 511 :1, 511 :3, 508:20, 510:24, 511:24,
511 :6, 511 :21
524:18, 528:11
512:4, 523:5
verdict 1321 - 505: 11, 506: 10,
wife [13] - 503:20, 503:21,
years [19] - 508: 15, 508: 19,
529:20, 536:5, 540:6,
504:8, 504:12, 504:15,
508:20, 510:18, 511 :2,
540:10, 543:8, 543:15,
508:13, 511:7, 511:13,
511:3, 511:4, 511:10,
547:15, 547:17, 547:20,
511:19, 511:23, 512:2,
511 :12, 511 :14, 511 :16,
548: 1, 548:5, 548:20,
512:3, 528:8
511 :20, 511 :22, 511 :23,
548:23, 549:4, 549:17,
WIGDOR [28J - 489: 15,
512:3, 512:4, 515:4,
551 :4, 551 :5, 551 :7, 551 :9,
490:3, 490:24, 505:10,
518:23
552:15, 552:18, 552:21,
525:16, 525:19, 525:22,
YORK [2] - 489: 1, 489:7
552:24, 553:2, 553:5,
529:19, 545:2, 545:4,
York [7] - 489:6, 489:17,
553:8, 553: 11, 553: 14,
548:6, 548:8, 548:10,
489:21, 489:23, 515:19
554:3
548:13, 548:15, 548:23,
young 111-504:16
versus [21 - 493:8, 525:5
549:1, 549:7, 549:11,
yourself [1J - 498:12
549:14, 549:18, 554:6,
victim [41 - 491 :6, 491: 12,
554:10, 554:15, 554:18,
yourselves [11 - 542:3
515:15
554:24
views 111 - 542:5
violated [11 - 541 :1
WigdOr[1J-489:16
violation 121 - 535:18, 539:12
WIGDOR: 111 - 555: 1
WILLEMIN [11- 489:15
virtue [11 - 506:24
win [1J-533:4
virus [2] - 512:10, 512:15
windows [1J- 505:20
Visconti 16J - 508:5, 508:24,
509:8, 513:21, 513:25,
wish [2J - 542:17, 542:20
526:21
witness [131- 492:16,
Visconti's [11 - 495:25
494:25, 534:16, 534:17,
VOIC8(2]-497:10, 506:19
534:23, 534:24, 535:4,
535:13, 546:13, 546:15,
voluntartly [11 - 512:21
546:19, 546:20
vote [1] - 547: 11
witness's [8]- 534:13,
w
534:14, 534:15, 534:19,
534:23, 535: 1
wages [21- 539:25, 540:16
witnessed 121 - 491 :21,
wait [2] - 553:22, 553:23
496:18
waiting [31 - 490:3, 491 :2,
wltnasaas [BJ -490:18,
549:10
506:7, 509:4, 518:21,
waitress [11 - 496:2
523:12, 532:25, 533:21,
waive 121 - 502: 17, 528:25
534:25
walvar[1J- 502:13
woman [41 - 504:20, 508: 18,
walk151 - 505:19, 514:10,
515:11, 515:12
514:16, 514:20, 518:9
word 151 - 506:8, 506:9,
walked [2] - 494:6, 521:13
508:9, 543:25, 549:24
walks [2] - 514:10, 519:22
words [41 - 498: 11, 508:7,
warranted [11 - 532:2
513:15, 522:6
wears [1J - 515:4
workforce [11- 523:17
wed [11 - 496:24
worth [11- 505:7
wedding [2] - 516:5
worthless [11 - 504:5
weak 16J - 491 :2, 499:14,
write [5] - 493:12, 493:14,
1
2
3 -------------------------------X
ANTHONY BAFFO,
4 CV-10-1245
(LOW)
5 Plaintiff,
476
6 -against-
June 11, 2012
10 Defendants. 2:30 p.m.
11
12
13
-------------------------------X
TRANSCRIPT OF TRIAL
14 APPEARANCES:
For the Plaintiff:
For the Defendants:
Ph. (631) 712-6106
Fax (631) 712-6122
Thompson Wigdor
85 Fifth Avenue
NEIL G. SPARSER, ESQ.
666 Fifth Avenue
15
16
17
18
19
20
21
22
23
24
25
Official US District Court Reporter
1
2
3 charge.
CHARGE CONFERENCE
477
(Trial resumes.)
THE COURT: I have given out my requests to
4 We have gone over the objections informally and
5 now the attorneys are going to put their objections on the
6 record.
7 We'll start with the plaintiff.
8 MR. WIGDOR: I have no objection to the
9 disability discrimination claim on page one and two,
10 motivating factor on page three.
11 On page four, the employer's judgment, it says
12 the first sentence says the law allows an employer in the
13 facts of this case to decide to terminate an employee for
14 any reason or no reason.
15 I would suggest that we should take out the
16 facts of this case because it seems to imply that you are
17 saying that it's okay.
18
19
20
21
22
THE COURT: Okay.
MR. CATALANO: No objection.
THE COURT: I agree.
Let's take it out.
MR. WIGDOR: On page four, the last paragraph,
23 I'm not sure it should be apostrophe Sor S apostrophe,
24 defendants, I think it's S apostrophe on both.
25 Just a small issue, but you are going to say it.
PAUL J. LOMBARDI. CERTIFIED REALTIME REPORTER
CHARGE CONFERENCE
478
1 They don't get a copy of it.
2
3
4 both.
5
6
THE COURT: They do.
MR. WIGDOR: Then it should be S apostrophe on
THE COURT: Okay.
MR. WIGDOR: Then on page five I think we agreed
7 to the language, the additional language.
8
9
10
11 argument
12
13 paragraph.
14
15
16
17
18
19
THE COURT: Okay.
Page six.
MR. WIGDOR: Page six we abandoned the
THE COURT: The second sentence in the first
MR. WIGDOR: Correct.
THE COURT: Is out.
MR. WIGDOR: That's right.
THE COURT: Everything else stays.
MR. WIGDOR: Everything else stays.
THE COURT: Except where we are taking out the
20 name of Mr. Aubrey.
21
22
23 later.
MR. WIGDOR: Okay.
THE COURT: For the reasons I will discuss
24 MR. WIGDOR: No problem with pages seven, eight
25 or nine.
CHARGE CONFERENCE
479
1 Page ten, punitive damages, this was included in
2 a prior charge where I was before your Honor.
3
4
THE COURT: Yes.
MR. WIGDOR: Where the second paragraph, second
5 sentence, after the second sentence, I would like to add
6 to the end of that sentence, and to deter others from
7 similar wrongful conduct in the future.
8
9
THE COURT: And to deter.
MR. WIGDOR: Others from similar wrongful
10 conduct in the future.
THE COURT: Okay.
MR. WIGDOR: And in the last paragraph --
MR. CATALANO: That one, Judge, I object.
THE COURT: Okay.
11
12
13
14
15 MR. WIGDOR: In the last paragraph, the second
16 sentence says plaintiff's damages must bear a reasonable
17 relationship to plaintiff's actual injury.
18 I think there it should say including economic
19 and/or compensatory damages.
20
21
THE COURT: It can't be --
MR. WIGDOR: The reason why is you already
22 instructed them that you are going to decide economic
23 damages.
24 But for punitive damages, they are allowed to
25 consider all the damages. For instance, if they were to
CHARGE CONFERENCE
480
1 conclude there were no compensatory damages, but there
2 were economic damages, they could award punitive damages
3 under portions of that.
4
5
THE COURT: Denied.
MR. WIGDOR: Okay.
6 And then your Honor indicated that in the
7 general instructions there is an instruction about the
8 witnesses' credibility?
9
10
THE COURT: Yes.
MR. WIGDOR: That's fine.
11 And then the only two other issues are the Rule
12 50 motion and the city charge.
13
14
15 that.
16
17
18
19
THE COURT: Yes.
MR. WIGDOR: I don't know how you want to take
THE COURT: Take the city charge.
MR. WIGDOR: Okay.
MR. WIGDOR: Should I wait for Mr. Catalano or
20 should I start?
21
22
THE COURT: You can start.
MR. WIGDOR: Your Honor, the defendants seek to
23 reap the benefits of a claimed resident of New York City,
24 but they are asking your Honor to hold him harmless for
25 violating New York City Human Rights Law, despite the fact
CHARGE CONFERENCE
481
1 that the law on its face is explicitly supposed to protect
2 New York City residents, regardless of where the
3 employer's location is.
4 So the New York City Human Rights Law and I'm
5 quoting, states, that prejudice, intolerance, bigotry and
6 discrimination threaten the rights and proper privilege of
7 the city's inhabitants, and that in the City of New York
8 there is no greater danger to health, moral safety and
9 welfare of the city and its inhabitants and it goes on.
10 So on the face of it, it applies to inhabitants.
11 There is no question Mr. Baffo is an inhabitant of New
12 York City.
13 THE COURT: Can the city pass laws affecting
14 parts of the country which has no jurisdiction on it?
15 MR. WIGDOR: It can.
16 In fact, the New York State Human Rights Law has
17 been applied uniformly to New York City --
18
19
20
21
THE COURT: That's New York State.
MR. WIGDOR: New York State residents.
THE COURT: Yes.
MR. WIGDOR: It has an extraterritorial
22 application.
23 The reason in this case there would be no due
24 process violation at all is the testimony has been that 20
25 to 30 percent of the revenues of the $200 million revenues
CHARGE CONFERENCE
482
1 were attributable to their operation in Manhattan, to
2 their Manhattan college campus which is significant, your
3 Honor.
4 That's, according to my math, maybe $40 to $60
5 million per year of revenues generated from the Manhattan
6 campus. Obviously the impact of any compensatory damages
7 that Mr. Baffo suffered occurred while he was living in
8 New York City as well.
9 The leading case, the Hoffman v Parade
10 Publications, which is a New York Court of Appeals case
11 itself, said, quote, it is clear from the statute's
12 language that its protections are afforded only to those
13 who inhabit or are persons in the City of New York.
14 So that case then went on to talk about, which
15 Judge Spatt's decision went on to talk about what happens
16 in a case where you have a noncity resident and whether
17 there is an impact in the city. That analysis does not
18 apply where you have a city resident, such as Mr. Baffo.
19 THE COURT: So you mean your former judge was
20 wrong.
21 MR. WIGDOR: With all due respect to
22 Judge Spatt, I believe he got it wrong.
23 He misapplied the statute as well as the Hoffman
24 case, and what I would ask the court to do is -- because
25 it is an important issue in that nobody has explicitly
CHARGE CONFERENCE
483
1 really recognized.
THE COURT: Okay. 2
3 MR. WIGDOR: Because it won't change the charge,
4 but to let the jury come back with its verdict, and let us
5 brief this issue further and at that point to render a
6 written decision because it is an important decision.
7
8
THE COURT: What do you say to that?
MR. SPARBER: I say that we respectfully
9 disagree, that Judge Spatt in that case got it right, and
10 your Honor -- we believe Hoffman is not inconsistent.
11 Hoffman is not limited the whether or not the
12 person is a resident, but it begged the question whether
13 it should be applied where the impact was not in the City
14 of New York.
15 THE COURT: I'm keeping it out. It's on the
16 record.
17 Anything else?
18 MR. WIGDOR: I think he wanted to make a Rule 50
19 motion.
20
21
THE COURT: Yes.
MR. SPARBER: We would respectfully make a Rule
22 50 motion in connection with an objection to the first
23 jury charge where we would respectfully disagree that
24 having HIV is a per se disability under the ADA.
25 That cases have held, the Supreme Court as well
CHARGE CONFERENCE
484
1 as a decision by Judge Lynch, that there has to be some
2 impairment to one's life's major activities, major life's
3 activities, and HIV has been deemed to be an impairment
4 upon the ability to reproduce, Judge.
5 This case is different, though, because there
6 was testimony on the record that Mr. Baffa has a vasectomy
7 in 2004, I believe it is, and as the Southern District
8 says where there is an alternate reason whereby a person
9 cannot procreate, having nothing to do with HIV, that
10 person's major life activity of reproduction is not
11 impaired by virtue of the HIV.
12 There was testimony on the record that it hasn't
13 impacted at all upon his ability to work, work being very
14 large category, the fact that he may not be able to work a
15 specific shift, he's worked at Applebee's ever since
16 December of 2009, I believe.
17 He's worked without any impairment. He
18 testified that he had no impairment with respect to
19 walking, talking, whatever we normally think of as a
20 disability. Under the ADA his wife corroborated his
21 testimony. There has been medical evidence to that
22 effect.
23 Therefore, we would contend that he's not
24 disabled or at least a jury should have the opportunity to
25 decide.
1
2
CHARGE CONFERENCE
THE COURT: You want to respond?
MR. WIGDOR: I do.
485
3 The definition of a disability under the ADA is
4 a physical or mental impairment that substantially limits
5 one or more major life's activities of such an individual
6 and that's at 42 USC 12102(1).
7 And what the defendants are missing is that a
8 major life activity is defined to include functions of the
9 immune system.
10
11
THE COURT: Of what?
MR. WIGDOR: Functions of the immune system,
12 which there is an abundance, in addition to reproductive
13 functions.
14 A major life activity includes immune system and
15 the courts have held, especially since the amendments to
16 the ADA
17 THE COURT: It still doesn't restrict his
18 ability to work in any way.
19 MR. WIGDOR: It doesn't matter, your Honor,
20 because the major life activity is the immune system.
21 Work is another major life activity, but the
22 immune
23
24 is.
25
THE COURT: I'm allowing it to go to the jury as
MR. WIGDOR: Okay.
1
2
CHARGE CONFERENCE
THE COURT: You have another motion.
MR. SPARBER: The second motion is a Rule 50
3 motion in connection with one of the individual
4 defendants, Leonard Aubrey.
5 In this case, Judge, there have been no facts
486
6 adduced during the trial and, in fact, it was specifically
7 stated at page 211 and 212 of the record that he knows of
8 no facts on which he's basing his claim against Leonard
9 Aubrey.
10 And I would respectfully move that Mr. Aubrey be
11 dismissed as an individual defendant.
12 MR. WIGDOR: I don't have the trial transcripts
13 in front of me, your Honor, but I recall the question
14 being other than the conspiracy, which we have been
15 alleging the entire time, the conspiracy between him and
16 the defendant Mr. Rizzuto.
17 I brought that out. Obviously I couldn't call
18 adverse witnesses in my case in chief, but in their case
19 through cross-examination I was able to elicit that
20 Mr. Aubrey said in his deposition that he couldn't recall
21 how he was told by Mr. Rizzuto that Mr. Baffa was HIV
22 positive.
23 Then he comes into the court and he tells the
24 jury that he recalls that on October 23rd, Mr. Baffa came
25 in with shock on his face, to his office, and now he
CHARGE CONFERENCE
487
1 knows, you know, how and when he was told that. It's a
2 complete contradiction. I would call it a lie.
3 And, in my view, that is clearly enough for the
4 jury to consider whether he was part of this aiding and
5 abetting of discrimination, and I would ask your Honor
6 that --
7 THE COURT: Let it go to the jury and make a
8 decision after, denied.
9
10
11
12
13
MR. WIGDOR: Admittedly it's a close call.
I agree it's a close call.
THE COURT: That's our life.
We make close calls all the time.
MR. WIGDOR: I think it would save potentially a
14 retrial on his claim if we would give it to the jury and
15 reserve your decision until after the verdict.
16
17
18
THE COURT: Motion granted.
Dismissed.
MR. SPARBER: Judge, one more under the omnibus
19 Rule 50 motion in that your Honor has said in the previous
20 cases, the question is whether a rational juror could find
21 based upon the facts presented there is enough to go to
22 the jury.
23
24
25
THE COURT: Denied.
MR. WIGDOR: That's it.
THE COURT: That's it.
1
2
3
4
5
6
See you tomorrow at 9:30.
THE COURT: You had some other things.
MR. WIGDOR: I included them.
Everything's included.
THE COURT: See you tomorrow.
7 (Whereupon, the trial was adjourned until
8 Tuesday, June 12th, at 9:30 a.m.)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
488
1
$
ability [31 - 484:4, 484: 13, BEFORE [11- 476:12 correct [11- 478:14
485:18 begged [11 - 483: 12 corroborated [11 - 484:20
$200 [11 - 481 :25
able [2]- 484:14, 486:19 BELTRE 111 - 476:20 country[1J-481:14
$40 [11-482:4
abundance [11 - 485: 12 benefits [1] - 480:23 Court [3] - 476:22, 482: 10,
$60 [11 - 482:4
according [11 - 482:4 between [11- 486:15 483:25
1
activities [3) - 484:2, 484:3, bigotry [11 - 481 :5 court 121 - 482:24, 486:23
485:5 brief [1] - 483:5 COURT [J - 476:1, 476:12,
100 [11- 476:23
activity [5J - 484: 10, 485:8, brought [11 - 486: 17
477:2, 477:18, 477:20,
10003 [11- 476:17
485:14, 485:20, 485:21 478:2, 478:5, 478:8,
10103 [1] - 476:21
actual [11- 479:17
c
478:12, 478:15, 478:17,
11 [11 - 476:9
ADA [41 - 483:24, 484:20,
campus [2] - 482:2, 482:6
478:19, 478:22, 479:3,
11722 [11 - 476:23
485:3, 485: 16 479:8, 479:11, 479:14,
cannot [11 - 484:9
479:20, 480:4, 480:9,
1180 [1] - 476:23
add [11- 479:5
12102(1) 111-485:6
addition [11 - 485:12
capacities [2] - 476:8, 476:9
480:13, 480:16, 480:18,
additional 111 - 478:7
case [13] -477:13, 477:16,
480:21, 481:13, 481:18,
12th [1] - 488:8
481 :23, 482:9, 482:10,
adduced 111 - 486:6
481:20, 482:19, 483:2,
2
adjourned [11 - 488:7
482:14, 482:16, 482:24,
483:7, 483:15, 483:20,
admlttedly [11 - 487:9
483:9, 484:5, 486:5,
485:1, 485:10, 485:17,
20 [11 - 481 :24
adverse [1J - 486: 18
486:18
485:23, 486:1, 487:7,
2004 [11 - 484:7
affecting [11- 481 :13
cases [2J - 483:25, 487:20
487: 11, 487: 16, 487:23,
2009 [1] - 484:16
afforded [11 - 482:12
CAT [11 - 476:25
487:25, 488:3, 488:6
2012 [1] - 476:9
agree [2] - 477:20, 487:10
Catalano [1]-480:19
Courthouse [1J - 476:5
211 [11 - 486:7
agreed [1J - 478:6
CATALANO [41- 476:19,
courts [1J - 485:15
212 [11- 486:7
ahead [11- 480:18
477:19, 479:13, 488:2
credibility [11 - 480:8
23rd [1] - 486:24
aiding [11 - 487:4
category [11 - 484:14
cross [11- 486:19
2:30 [11- 476:10
alleging [1J - 486: 15
Central 121 - 476:6, 476:23
cross-examination 111-
allowed [11-479:24
change [11 - 483:3
486:19
3 allowing [11- 485:23
charge l8l - 477:3, 479:2,
CV-10-1245 [11- 476:4
480:12, 480:16, 483:3,
30 [1] - 481 :25
allows [11-477:12
483:23
D
alternate [1] - 484:8
amendments [1J - 485: 15
chlef[11- 486:18
4 clty[61-480:12, 480:16,
damages [10]-479:1,
analyala [11- 482:17
481:9,481:13,482:17,
479:16, 479:19, 479:23,
42 [1] - 485:6
ANTHONY [11 - 476:3
482:18
479:24, 479:25, 480:1,
5
apostrophe [41 - 477:23,
City [1 OJ - 480:23, 480:25,
480:2, 482:6
477:24, 478:3
481 :2, 481 :4, 481 :7,
danger[1J - 481:8
50 [5] - 480:12, 483:18,
Appeals [1] -482:10
481 :12, 481:17,482:8,
December [11 - 484:16
483:22, 486:2, 487:19
APPEARANCES [1] - 476:14
482:13, 483:13
decide [3] - 477:13, 479:22,
Applebee's [11-484:15
city's [11 - 481 :7
484:25
6
appllcatlon 111- 481 :22
claim [3] - 477:9, 486:8,
decision [6] - 482: 15, 483:6,
applied [2] - 481:17,483:13
487:14
484:1, 487:8, 487:15
631 [2] - 476:23, 476:23
applies [1J - 481 :10
clalmed [11 - 480:23
deemed [11 - 484:3
666 [11 - 476:21
apply [11 - 482: 18
clear [11 - 482: 11
defendant [2] - 486:11,
argument [11- 478:11
clearly [11 - 487:3
486:16
7
attomeya [1J - 477:5
close [3] - 487:9, 487: 10,
defendants [4] - 4 77:24,
712-6106 [1] - 476:23
attributable [11- 482:1
487:12
480:22, 485:7. 486:4
712-6122 [11- 476:23
Aubrey151-478:20, 486:4,
college [11 - 482:2
Defendants [2] - 476:10,
486:9, 486: 10, 486:20
compensatory [31- 479:19,
476:19
8
AUBREY [11- 476:8
480: 1, 482:6
defined [11 - 485:8
Avenue121-476:16, 476:21
complete [1J - 487:2
definition [11 - 485:3
85 [11- 476:16
award [1J - 480:2
conclude [11 - 480: 1
denied [3) - 480:4, 487:8,
conduct121- 479:7, 479:10
487:23
9
B connection [2] - 483:22,
deposition [11 - 486:20
9:30 [2] - 488:1, 488:8
Baffo l8l - 481 :11, 482:7,
486:3
despite [11 - 480:25
482:18, 484:6, 486:21,
conalder121- 479:25, 487:4
deter[2] - 479:6, 479:8
A 486:24
conapiracy121- 486:14,
different [11 - 484:5
BAFFO [1] -476:3
486:15
dlsablllty [41 - 477:9, 483:24,
a.m 111 - 488:8
484:20, 485:3
based [11 - 487:21
contend 111 - 484:23
abandoned [11-478:10
contradiction [11 - 487:2
disabled [11 - 484:24
basing [11 - 486:8
abetting 111 - 487:5
bear[1J-479:16
copy[1J- 478:1
disagree [2] - 483:9, 483:23
discrimination [3] - 477:9,
481 :6, 487:5
discuss [11- 478:22
dismissed 121 - 486: 11,
487:17
DISTRICT [3] - 476:1, 476: 1,
476:12
District 111 - 484:7
DOUGLAS [2] -476:15,
476:19
due [2] - 481 :23, 482:21
during 111 - 486:6
G
general [11- 480:7
generated [11 - 482:5
given [1] -477:2
granted 111 - 487: 16
greater [11- 481 :8
issue [3] - 477:25, 482:25,
483:5
issues [1] -480:11
itself[1J - 482:11
482:5
math [11 - 482:4
matter111- 485:19
mean [1J -482:19
,__ ________ __, mechanical [11- 476:24
J
medical [11 - 484:21
,__ ________ __, mental 111- 485:4
-------------1 Jaworski [
1
] -
475
=
20
MICHAEL (1] - 476:15
H judge 121 - 482: 19, 487: 18 mllllon [2] - 481 :25, 482:5
1--------------1 JUDGE 111- 476:12
Judge [7] - 479: 13, 482: 15, misapplied [11 - 482:23 harmless [11 - 480:24
health 111- 481 :8
held [2J - 483:25, 485:15
missing [11 - 485:7
482:22, 483:9, 484:1,
moral 111 - 481 :8
484:4, 486:5
,__ ________ __, HIV[51 - 483:24, 484:3,
E 484:9, 484: 11. 486:21
judgment[
11
_4
77
:
11
motion IBJ -480:12, 483:19,
EASlERN [1] - 476:1
economic [3]- 479:18,
479:22, 480:2
effect [1] - 484:22
eight[1J-478:24
elicit [11- 486:19
employee [11-477:13
employer[1J - 477:12
employer's 121 - 477: 11,
481:3
end [11 - 479:6
entire 111 - 486: 15
especlally111- 485:15
ESQ [5J - 476:15, 476:15,
476:19, 476:19, 476:20
evidence [11 - 484:21
examination 111 - 486: 19
except[1J-478:19
expliciUy [2] - 481: 1, 482:25
extraterrltorlal [11 - 481 :21
F
face131-481:1, 481:10,
486:25
fact (4] - 480:25, 481 : 16,
484:14, 486:6
factOr[11- 477:10
facts [5] - 477:13, 477:16,
486:5, 486:8, 487:21
Fax 111 - 476:23
FCRR [11 - 476:22
Federal [11- 476:23
Fifth 121 - 476:16, 476:21
fine [11- 480:10
first 131 - 477:12, 478:12,
483:22
five [11 - 478:6
former[1J - 482:19
four121-477:11,477:22
front [11- 486:13
Fulbright [11 - 476:20
functions 131 - 485:8,
485:11, 485:13
future [2J - 479:7, 479:10
Hoffman [41 - 482:9, 482:23,
483:10, 483:11
hold 111 - 480:24
Honor110]-479:2, 480:6,
480:22, 480:24, 482:3,
483:10, 485:19, 486:13,
487:5, 487: 19
June l21 - 476:9, 488:8 483:22, 486: 1, 486:2,
Jurisdiction [11 - 481 :14
485
:
3

487
:
16

457
=
19
juror
111
_
487
:
20
motivating [1] - 477:10
move [11- 486:10
jury[10J -476:12, 483:4, MR
477 8 477 19
483:23, 484:24, 485:23,
1431
- : ' :
: : ~ : ~ : : : : ; : ~ 2 487:7, : ~ ~ ~ : : ; : ~ ~ ~ : ~ : ~ ~ : :
K
HONORABLE [11- 476:12
Human 131 - 480:25, 481 :4,
481:16
keeping [1]-483:15
1--------------1 knows 121 - 486:7, 487:1
479:4, 479:9, 479:12,
479:13, 479:15, 479:21,
480:5, 480:10, 480:14,
480:17, 480:19, 480:22,
481:15, 481:19, 481:21,
482:21, 483:3, 483:8,
483:18, 483:21, 485:2,
485:11, 485:19, 485:25,
486:2, 486: 12, 487:9,
487:13, 487:18, 487:24,
488:2, 488:4
immune [51 - 485:9, 485:11,
485:14, 485:20, 485:22
Impact 131 - 482:6, 482: 17,
483:13
Impacted 111 - 484: 13
Impaired 111 - 484: 11
impairment 151 - 484:2,
484:3, 484:17, 484:18,
485:4
imply [11 - 477:16
Important 121 - 482:25, 483:6
Include [11 - 485:8
included [3] - 479:1, 488:4,
488:5
Includes 111 - 485: 14
including 111- 479:18
inconsistent[1J-483:10
Indicated [11 - 480:6
individual [5] - 476:8, 476:9,
485:5, 486:3, 486:11
Informally [11 - 477:4
inhabit [11 - 482: 13
inhabitant 111 - 481 : 11
inhabitants [3] - 481 :7,
481:9, 481:10
injury [11 - 479:17
instance [11- 479:25
INSTITIJTE [11- 476:7
instructed [11 - 479:22
instruction [11- 480:7
Instructions [11 - 480:7
intolerance [11 - 481 :5
Islip [21 - 476:6, 476:23
L
language [3]- 478:7, 482:12
large [11 - 484:14
laat 131 - 477:22, 479: 12,
479:15
law[2]-477:12, 481:1
Law [3] - 480:25, 481 :4,
481:16
lawa111-481:13
LDW [1] - 476:4
leading [11 - 482:9
least 111 - 484:24
Leonard [2] - 486:4, 486:8
LEONARD 121 - 476:8,
476:12
lie [11 - 487:2
life (6] - 484: 10, 485:8,
485:14, 485:20, 485:21,
487:11
life's 131 - 484:2, 485:5
limited [11 - 483:11
limits [11 - 485:4
living [11 - 482:7
location 111 - 481 :3
Lomban:ll 111- 476:22
Lynch [1] - 484: 1
must[1J-479:16
N
name [11 - 478:20
NEIL [1]-476:19
NEW [2J - 476:1, 476:7
New [20J - 476:6, 476:17,
476:21, 476:23, 480:23,
480:25, 481:2, 481:4,
481:7, 481:11, 481:16,
481:17, 481:18, 481:19,
482:8, 482:10, 482:13,
483:14
nine [1J -478:25
nobody [11 - 482:25
noncity [11 - 482:16
normally [11 - 484: 19
nothing [11 - 484:9
0
t------------1 obJect111-479:13
M objection [3]-477:8, 477:19,
t------------1 483:22
major[BJ-484:2, 484:10,
485:5, 485:8, 485:14, objections [2J - 477:4, 477:5
485:20, 485:21 obviously [2] - 482:6, 486:17
Manhattan [3] - 482: 1, 482:2, occurred [11 - 482:7
October [11 - 486:24
2
3
OF 131- 476:1, 476:7, 476:11
Q
seven 111- 478:24 Thompson 111 - 476: 16
offtce 111 - 486:25 shift [11 - 484: 15 threaten 111 - 481 :6
official [2) - 476:7, 476:8
quote [11 - 482: 11
shock [1J - 486:25 three [1J - 477:10
Official [1J - 476:22
quoting [11- 481:5
significant [1] - 482:2 tomOITOW [2) - 488: 1, 488:6
omnibus [11-487:18
R
similar[2]- 479:7, 479:9 Transcript [11 - 476:25
one [5J - 477:9, 479:13, six [21 - 4 78:9, 478:10 lRANSCRIPT [11 - 476:11
485:5, 486:3, 487:18
ratlonal [11 - 487:20
small [1J - 477:25 transcripts [11 - 486: 12
one's [11 - 484:2
really 111 - 483: 1
Southern [11 - 484:7 lRIAL [11 - 476:11
operation [11 - 482: 1
reap [11 - 480:23
SPARSER [5J - 476:19, trlal [31- 486:6, 486:12,
opportunity [11 - 484:24
reason [5J - 477: 14, 479:21,
483:8, 483:21, 486:2, 488:7
481 :23, 484:8
487:18 Trial [11- 477:1
p
reasonable [1(-479:16
Spatt [2J - 482:22, 483:9 Tuesday [11 - 488:8
p.m [11 - 476:10
reasons [11-478:22
Spatt's [1J - 482:15 two [2) - 477:9, 480:11
page [91- 477:9, 477:10,
recognized [11 - 483: 1
specific [11 - 484: 15
477:11, 477:22, 478:6,
record [S(-477:6, 483:16,
speclflcally [11 - 486:6
u
478:9, 478:10, 479:1,
484:6, 484: 12, 486:7
start [31- 477:7, 480:20,
under [5J - 480:3, 483:24,
480:21
486:7
recorded [11 - 476:24
484:20, 485:3, 487:18
pages [11 - 478:24
regardless [11 - 481 :2
State[31-481:16, 481:18,
uniformly [11- 481 :17
481:19
Parade [11 - 482:9
relationship [11- 479:17
UNITED [21-476:1,476:12
paragraph 151 - 477:22,
render [11 - 483:5
STATES121-476:1, 476:12
United 111 - 476:5
478:13, 479:4, 479:12,
Reporter[11- 476:22
states [11- 481 :5
use [11-485:6
479:15
reproduce [11 - 484:4
States 111 - 4 76:5
part [11 - 487:4
reproduction [11- 484:10
statute [11 - 482:23
v
parts [11-481:14
reproductive [11- 485:12
statute's [11 - 482: 11
paas111-481:13
requests [1] - 477:2
stays [2] - 478:17, 478:18 vasectomy 111 - 484:6
Paul [11-476:22
reserve [1J - 487:15
stenography [1J - 476:24 verdict [2J - 483:4, 487: 15
par [2] - 482:5, 483:24
resident [41 - 480:23, 482: 16,
still [11 - 485: 17 view [11 - 487:3
percent [11 - 481 :25
482:18, 483:12
substantially [11 - 485:4 violating 111 - 480:25
person [2] - 483:12, 484:8
residents [2J - 481:2,481 :19
suffered [11 - 482:7 violation 111 - 481 :24
parson's [11- 484: 10
respect [2] - 482:21, 484: 18
suggest [1] - 477:15 virtue [11 - 484: 11
persona 111 - 482: 13
respectfully [41 - 483:8,
Suite 111 - 4 76:23
Ph [1]-476:23
483:21, 483:23, 486: 10
supposed [11- 481:1
w
physical 111 - 485:4
respond [11 - 485: 1
Supreme [11 - 483:25
wait [11 - 480: 19
Plaintiff[2] - 476:5, 476:15
restrict [11 - 485:17
system [41 - 485:9, 485: 11,
walklng [11-484:19
plalnUff111- 477:7
resumes [11- 477:1
485:14, 485:20
welfare [11- 481 :9
plaintiff's [2] - 479:16,
retrial 111- 487:14
WEXLER[1(-476:12
479:17
revenues [3] - 481 :25, 482:5 T
whereby [11 - 484:8
Plaza [11-476:23
Rights 131 - 480:25, 481 :4,
TECHNOLOGY111- 476:7 wife [11 - 484:20
point [11 - 483:5
481:16
ten [11- 479:1
WIGDOR 1371 - 476: 15,
portions [11 - 480:3
rights [11 - 481 :6
terminate [1]- 477:13 477:8, 477:22, 478:3,
positive [11 - 486:22
Rizzuto 121 - 486: 16, 486:21
testified [11 - 484: 18 478:6, 478:10, 478:14,
potentially [1] - 487:13
RIZZUTO [1] - 476:7
teaUmony 141 - 481 :24, 478:16, 478:18, 478:21,
prejudice 111- 481 :5
RMR [11 - 476:22
484:6, 484:12, 484:21 478:24, 479:4, 479:9,
presented [11- 487:21
ROBERT111- 476:7
THE [431 - 476:12, 4 77:2, 479:12, 479:15, 479:21,
previous [11 - 487: 19
Rule [5J - 480: 11, 483: 18,
477:18, 477:20, 478:2, 480:5, 480:10, 480:14,
privilege [1J - 481 :6
483:21, 486:2, 487:19
478:5, 478:8, 478:12, 480:17, 480:19, 480:22,
problem [11- 478:24
s
478:15, 478:17, 478:19, 481:15, 481:19, 481:21,
Proceedings [11- 476:24
478:22, 479:3, 479:8, 482:21, 483:3, 483:18,
process [11 - 481 :24
safety 111 - 481 :8
479:11, 479:14, 479:20, 485:2, 485: 11, 485:19,
procreate [11 - 484:9
SAMANTHA [1J - 476:20
480:4, 480:9, 480:13, 485:25, 486:12, 487:9,
produced [11- 476:25
save [11-487:13
480:16, 480:18, 480:21, 487:13, 487:24, 488:4
proper 111 - 481 :6
se [11 - 483:24
481 :13, 481:18,481 :20, Wigdor [11 - 476:16
protect [1] - 481 : 1
second [6] - 478:12, 479:4,
482:19, 483:2, 483:7, WILLEMIN [11- 476:15
protections [11- 482:12
479:5, 479:15, 486:2
483: 15, 483:20, 485: 1, witnesses [11- 486:18
Publications [11 - 482: 1 O
see [21 - 488:1, 488:6
485:10, 485:17, 485:23,
witnesses' 111 - 480:8
punitive [31 - 479:1, 4 79:24,
seek [11 - 480:22
486:1, 487:7, 487:11,
written [11 - 483:6
480:2
sentence [61- 477:12,
487:16, 487:23, 487:25,
wrongful [2) - 479:7, 479:9
put [11 - 477:5
478:12, 479:5, 479:6,
488:3, 488:6
479:16
therefore [11- 484:23
4
y
year [11 - 482:5
YORK[2]-476:1, 476:7
York [20] -476:6, 476:17,
476:21, 476:23, 480:23,
480:25, 481 :2, 481 :4,
481:7,481:12,481:16,
481 :17, 481:18,481 :19,
482:8, 482:10, 482:13,
483:14
1
2
3 -------------------------------X
ANTHONY BAFFO,
4 CV-10-1245
(LOW)
5 Plaintiff,
489
6 -against-
June 12, 2012
10 Defendants. 9:40 a.m.
11
12
13
-------------------------------X
TRANSCRIPT OF TRIAL
14 APPEARANCES:
For the Plaintiff:
For the Defendants:
Ph. (631) 712-6106
Fax (631) 712-6122
Thompson Wigdor
85 Fifth Avenue
NEIL G. SPARBER, ESQ.
666 Fifth Avenue
15
16
17
18
19
20
21
22
23
24
25
1
2
3
(Trial resumes.)
THE COURT: We are bringing the jury in.
MR. WIGDOR: I think we are waiting for
4 Mr. Catalano.
5 THE COURT: Okay.
6 Be seated.
8 proceedings.)
9
10
11
12
13
THE COURT: Okay.
Bring in the jury.
THE COURT: Be seated. We will now have the
14 summations.
15 Remember what I said about openings, the same
490
16 thing applies to summations. What the lawyers say is not
17 evidence. The evidence is the documents, the testimony of
18 witnesses and what you believe is the evidence and the
19 truth.
20 Plaintiff goes first. Defendant goes second and
21 plaintiff gets a short rebuttal. I put limits on them.
22 Like everything else, we move it along.
23 Plaintiff, you are first.
24 MR. WIGDOR: Your Honor, opposing counsel,
25 Mr. Lombardi, ladies and gentlemen of the jury.
491
1 Since Mr. Catalano's opening statement, I have
2 been waiting a week to say three things.
3 First, Mr. Baffo is not a liar.
4 Second, the defendants did not bend over
5 backwards for Mr. Baffa.
6 Third, Mr. Rizzuto is not the victim in this
7 case. After trying to save someone who had just been hit
8 over the head with a bottle, and donating blood and
9 learning that he was HIV positive, and then confiding with
10 tears in his eyes in someone he thought was his friend and
11 ultimately been fired as a result, testified in this case
12 has shown that Mr. Baffo is the victim, the victim of
13 intentional discrimination, based upon his disability or
14 perceived disability. We have proven that Mr. Baffo's
16 factor that prompted the decision to fire him.
17 I want to thank you, the members of the jury,
18 for being attentive and for performing, on behalf of my
19 client, your civic duty as jurors. Let me say this, and I
20 don't say it lightly, Mr. Rizzuto is a liar, plain and
21 simple, and you have witnessed it firsthand. He can't be
22 trusted and his entire testimony cannot be trusted.
23 Defendants say that the reason that Mr. Baffo
24 was fired was to create two new jobs, mind you, one of the
25 jobs was never filled, the sales associate position. But,
492
1 first, Mr. Rizzuto outright lies in his sworn affidavit.
2 You will recall that's Exhibit 138, and in that affidavit
3 he signs it on the last page, he swears to it, to the
4 contents, and in this case you heard him say that it was
5 important that this affidavit, which was done just weeks
6 after the termination, that this affidavit should be
7 accurate and complete, and he swore to tell the truth as
8 to that.
9 But what you will see in the first substantive
10 paragraph trying to justify the termination, paragraph
11 seven, he says that in fiscal 2008, I gave Anthony control
12 of the de Seversky Center budget, and the center suffered
13 a $600,000 loss in that year. This is a false statement,
14 and he was asked at his deposition to explain how did you
15 come up with the $600,000? He said he didn't know.
16 Then he got up on this witness stand, took an
17 oath to tell the truth, and came up with some convoluted
18 answer that somehow in Exhibit 45 that clearly shows that
19 the year that he was in charge of the budget, 2008, there
20 was $150,000 profit, he tries to subtract these two
21 numbers between 2008 and 2009 and says that's how I came
22 up with the figure? The math doesn't even add up. And
23 that's not what he said in his deposition.
24 In his opening, Mr. Catalano said with respect
25 to the $600,000, that was wrong. That was a mistake. He
493
1 misread the financials. He lied, and he tried to lie to
2 make it look like Mr. Baffa was not performing well. He
3 lied in this affidavit.
4 And that's why we admitted Exhibit 45. This
5 Exhibit wasn't in the affidavit. There is no mention of
6 this in his affidavit. We also admitted Exhibit 46,
7 Exhibit 46 shows the financials in September 2008, and
8 2009, and October 2008 versus 2009, and these show that
9 things were moving up, the business was getting better.
10 Now, that wasn't the only lie. You will recall
11 that Mr. Rizzuto testified in this trial that he told
12 Mr. Baffo to write a memo. That's what he said, again,
13 under oath. He testified Exhibit 38 that he told
14 Mr. Baffo to write this memo about cost saving measures.
15 That's what he said.
16 You will recall that I took out his deposition
17 testimony and read it; did you ask Mr. Baffo to create it?
18 No. Not that I recall. I then asked him whether that was
19 a truthful answer. He said no. He's an admitted liar.
20 But he's not the only person that's lying.
21 Let's look at Mr. Aubrey. On direct examination I asked
22 Mr. Aubrey the following questions at page 453 --
23 actually, this was Mr. Catalano, sorry. He says at page
24 453 on direct:
25 Question: Now, on that morning did there come a
494
1 time that Mr. Rizzuto came to your office and, if so,
2 about what time?
3 Answer: I would say it was about -- Mr. Rizzuto
4 came to my office sometime 8 to 8:30 in the morning, in
5 that range.
6 Question: When he walked in, what did he say to
7 you?
8 Answer: He said he had a surprised look on his
9 face.
10 And then it goes on to say that's when he
11 disclosed that he was HIV positive. But then you will
12 recall cross-examination, page 459, I took out the
13 deposition transcript of Mr. Aubrey, and I read it:
14
15
16
17
18
19
20
21
Question: Do you recall what he told you?
Answer: Only that Anthony was HIV positive.
Question: And do you recall how he told you?
Answer: No.
Question: Was it a phone call?
Answer: I don't recall, exactly.
Question: Did he tell you in person?
Answer: Again, as I answered the question, I
22 don't recall exactly.
23 So here you have a person at his deposition who
24 doesn't recall how he was told, then he comes up on the
25 witness stand, not only does he recall how he was told, he
495
1 recalls that Mr. Rizzuto had a shocked look on his face.
2 So you have two people who are lying.
3 Defense counsel said to you in his opening that
4 he was going to prove to you that there are four people,
5 four people in August decided they were going to terminate
6 Mr. Baffa. It cannot be disputed in this case there was
7 never a decision made in August. There was no decision
8 made in August and the affidavit in this case makes no
9 mention of any discussion between these four people in
10 August either. Don't you think that would have been in
11 the affidavit?
12 The termination was not recommended and
13 ultimately approved until well after October 2nd, well
14 after Mr. Baffa had disclosed that he was HIV positive.
15 And you will see those exhibits. Plaintiff Exhibit 13,
16 that's dated October 16, 2008. By the way, this whole
17 thing about backdated, it is backdated. It's dated 2008.
18 It's supposed to be 2009.
19 But this memo says it's a request. I would like
20 to move forward. It's a request. Exhibit 81, my
21 recommendation is to eliminate. This is October 20th.
22 Exhibit 78, October 20th. I recommend the following.
23 These are all after, after Mr. Baffa has disclosed that he
24 was HIV positive.
25 As for Ms. Visconti's testimony, you have
496
1 someone who owes their entire career to Mr. Rizzuto, from
2 waitress to director, and then testifies when I questioned
3 her that she didn't even help Mr. Rizzuto with respect to
4 the termination. I had to break out Exhibit 102 and
5 Exhibit EI. She was clearly involved in the termination.
6 As for Mr. Redlich, did you see his body
7 language? He didn't want to be here. He had to come in
8 and support his boss, the boss who gave him a $7,000
9 raise. He wouldn't budge on that one. He thought it was
10 5 or 6, I had to show it was $7,000. That was a lot of
11 money. That was a 12 percent raise, folks, in the year
12 that they fired Mr. Baffo.
13 Then I have to pull out of him that he had a
14 friend, he reached out to a friend who wanted the job, and
15 what does he do? This is well after October 2nd, after
16 the decision apparently had been made, and he forwards
17 that resume to Mr. Baffo. All of this is classic pretext.
18 You have witnessed the inconsistencies in the defendant's
19 case, the inconsistencies and the falsehoods in their
20 testimony and their failure to tell the truth.
21 Mr. Rizzuto admits he had a script when he fired
22 his former friend and it is clear that there is a script
23 here to try to justify the terminations. Fortunately, you
24 are the finders of fact and you are not wed to that
25 script.
497
1 And this is not surprising. There was no
2 training of any type of discrimination at this place, or
3 Mr. Rizzuto, no disability discrimination, no type of
4 training, no policy, nothing.
5 So what this case all really comes down to,
6 folks, is it more likely than not that Mr. Baffo told
7 Mr. Rizzuto on October 1st that he had received a call
8 from a doctor that he wanted to see regarding some tests?
9 Is it more likely than not that Mr. Baffo called
10 Mr. Rizzuto and left a voice mail saying he got some
11 disturbing news?
12 By the way, Mr. Rizzuto was never even asked by
13 his own lawyer whether that happened or not. Is it more
14 likely than not on October 2nd that Mr. Baffo told
15 Mr. Rizzuto that he was HIV positive? I would ask you to
16 use your common sense and to listen for the ring of truth.
17 This is someone whom he considered to be a friend, someone
18 whom he shared personal things with and Mr. Rizzuto shared
19 personal things with.
20 And now comes what I believe to be the two most
21 important pieces of evidence that prove by a preponderance
22 of the evidence that Mr. Baffo did disclose that he was
23 HIV positive on October 2nd, and I think you know what I'm
24 talking about. At page 397 of the trial transcript I was
25 cross-examining Mr. Rizzuto, you will recall:
498
1 Question: Did you look for a memo that you said
2 you wrote -- strike that.
3 Page 397:
4 Question: Isn't it your testimony that on
5 October 23rd that was supposed to be the day that
6 Mr. Baffa was going to be fired, right?
7
8
Answer: Correct.
Question: Yet, isn't it your testimony that
9 when Mr. Baffa told you he was HIV positive you told him
10 to take off as much time as he needed?
11 Answer: I think my words were close to it, was
12 take the time that you need to take care of yourself.
13 And then I had to get it out of him:
14 Question: Didn't you tell him that if he needed
15 time off or whatever he needed to do?
16
17
Answer: I believe I did.
Question: So you told Mr. Baffa on the day you
18 were going to terminate him that he should take needed
19 time off.
20 Answer: I did.
21 This was on the day of the termination, and he's
22 telling Mr. Baffo to take needed time off, to take time
23 off. The only way that makes sense is if it happened on
24 October 2nd, and Mr. Baffa -- Mr. Rizzuto admits that at
25 page 349 when he met with Mr. Baffo on October 23rd that
499
1 what was in his mind was that he was going to be
2 terminated a half hour later.
3 So the only way that makes sense is if that
4 conversation took place on October 2nd. And the other
5 piece of evidence that I believe is so important in this
6 case is Exhibit 125. Exhibit 125 is an e-mail from
7 Mr. Rizzuto to Maureen Gaughran, the HR person, copying
8 Mr. Baffa dated September 29th, just a couple of days
9 before Mr. Baffo says he's HIV positive.
10 According to Mr. Rizzuto the decision's already
11 been made to terminate him, but this is what he does, he
12 says, I wanted to ask if you can put out ads for the
13 dining room captain and the sales assistant. It has been
14 approved by president this week. Anthony's going on
15 vacation next week so you can forward to me. Anthony will
16 send you all the information.
17 So they want to say there's this reorganization
18 going on, the decision's already been made to terminate
19 Mr. Baffa, yet here you have an e-mail from Mr. Rizzuto to
20 HR talking about sending out resumes, and sending out job
21 descriptions about these jobs. HR's in the dark on this
22 reorganization? That makes absolutely no sense.
23 HR then replies to the e-mail saying that,
24 please confirm the dates that Anthony's going to be on
25 vacation so I can send you the postings during his absence
500
1 and resume sending those to him when he returns. No
2 decision had been made as of September 29. This document
3 demonstrates that beyond any doubt.
4 Some of the defendants' arguments. They tried
5 to draw into question how Mr. Baffo contracted HIV. That
6 is downright offensive. There is no evidence in the
7 record to support any other contention in this case other
8 than the fact that Mr. Baffo contracted HIV when he came
9 to the aid of someone on the Circle Line. Hopefully they
10 will abandon that argument in their closing.
11 Performance? Come on. We saw many documents
12 after October 2nd that tried to purport to justify the
13 termination, the memos to HR, the memo to Len Aubrey, not
14 one of them, none of them mention anything to do with
15 Mr. Baffo's performance. That is a complete red herring.
16 Exhibit DJ, that's the September 1, 2009 memo,
17 not mentioned anywhere in Mr. Rizzuto's affidavit. So DJ
18 is that memo that he sent to Mr. Aubrey in code, okay, in
19 code. It doesn't mention Mr. Baffo. It doesn't mention
20 the general manager position.
21 Do you think for a second if it was what they
22 say it was, wouldn't it have been in Mr. Rizzuto's
23 affidavit that was filed in connection with the charged
24 discrimination just a few weeks later? Of course it
25 would. It's not what they say it is.
501
1 And Mr. Catalano said and the reason why it was
2 written in code was because somebody might see it on the
3 computer, and so therefore he said that he's sitting next
4 to him. Suppose he leaves the computer to answer the
5 phone or runs out to answer a phone? Of course it doesn't
6 say it, he said. The problem with that is there is no
7 evidence in the case about that. He never even asked his
8 client about that.
9 So there's no evidence, and it makes no sense
10 because then we see the other memos, Exhibit 13, 81, 78,
11 they all mention Mr. Baffa, after October 2nd, of course,
12 but they all mention Mr. Baffa by name and the general
13 manager position and the request to eliminate that
14 position. So it makes no sense at all.
15 The other change is simply the addition of the
16 other position, the captain position which you will see in
17 Exhibit 63, September 3rd, 2009, and that's what it is.
18 Then, of course, we have all of these exhibits, 66, 67,
19 62, 63, they all talk about this new position's reporting
20 to Mr. Baffa, the job descriptions, the memo, the thing
21 they posted on Monster.Com as of September 22nd. So they
22 all show it reporting to Mr. Baffa. That makes no sense.
23 As for Exhibit CI, that's the e-mail that
24 Mr. Rizzuto sent to Ms. Jablonsky saying, oh, suddenly on
25 the 23rd Mr. Baffa came in and said he's HIV positive,
502
1 that is -- I said it in my opening, I'll say it again
2 that is a CYA, we all know what that is, a CYA e-mail. He
3 knew there was the possibility he would spring this on
4 him, he was trying to CYA.
5 As for the contention in his opening
6 Mr. Catalano says the basis for Mr. Baffa disclosing not
7 on October 2nd, but October 23rd was this thing in Exhibit
8 44, the medical records which says I'd like to tell people
9 other than my family and friends about my HIV, other than
10 my family, other, that's the key, and he considered
11 Mr. Rizzuto a friend.
12 As for the increased severance, where's the
13 policy regarding asking everybody for a waiver? You will
14 see in Rizzuto's affidavit at paragraph 15, he tries to
15 take credit for the increased severance, yet another lie,
16 nothing to do with anything other than that Mr. Baffo
17 wouldn't waive his rights to get health care and
18 severance. He is a man of integrity and character. He
19 rejected the severance offer because he wanted his day in
20 court.
21 Now, I told you in my opening that there was no
22 smoking gun e-mail in this case. There is no e-mail that
23 says, yeah, we fired him because he's HIV positive.
24 That's not how you prove cases like this.
25 What we have proven are the lies, the
503
1 inconsistencies and the denial of the fact that he
2 disclosed he was HIV positive on October 2nd. We have
3 proven by a preponderance of the evidence that Mr. Baffo's
5 factor that prompted the decision. All we are required to
6 do is to prove that his disability or perceived disability
7 was a motivating factor that moved them towards the
8 decision to terminate him, more likely than not. It's not
9 beyond a reasonable doubt. This isn't a criminal trial.
10 Just tip the scales ever so slightly in Mr. Baffo's favor.
11 Now, I have discussed liability and I realize
12 I'm going fast, but I have a time limit. I'd like to talk
13 to you about damages.
14 Economic damages are for the judge to decide.
15 That's not in your purview. Compensatory damages,
16 emotional distress and harm to him. You heard
17 uncontroverted testimony that the de Seversky Center was
18 Mr. Baffo's dream job. He had worked hard to become the
19 general manager. The place where he had worked with his
20 wife, his alma mater, a place where he fell in love with
21 his wife and rented it to have a private anniversary
22 dinner.
23 That was all stripped away from him when the
24 defendants unlawfully fired him. As a result, and you
25 will see this in the medical records, Exhibit 44,
504
1 Mr. Baffo has been and continues to suffer from
2 depression, anxiety, feelings of failure, and fatigue. He
3 also told you about the shock, the feelings of failure to
4 himself, his family, his three children, and his feeling
5 of being worthless.
6 Now, an assistant store manager at Applebee's,
7 and while the defendants will try and say that the HIV is
8 to blame, you heard the testimony. Anthony and his wife
9 Laura, through the help of their faith and their family,
10 had come to grips with that.
11 The loss of his job, though, he could not cope
12 with. Even telling his wife maybe it would be better if I
13 wasn't around. That's one thing that Mr. Baffa did get
14 wrong. We would not be better off if he wasn't around.
15 As Father's Day approaches this weekend, Mr. Baffo's wife
16 and three young children would not be better off.
17 He should be considered a role model to them.
18 He is what we strive to be, a hardworking, dedicated,
19 honest human being who is sitting at that table because he
20 jumped to the aid of a woman who was bleeding, and now has
21 the courage to stand up for what is right.
22 Even when it looked as though everything had
23 gone horribly wrong, as the head of his household, he did
24 what was very difficult, he went out and got a job to
25 provide for his family. We'll never be able to undue what
505
1 happened to him. Mr. Baffo will continue to live with the
2 emotional scars for the remainder of his life. You have
3 to look into your heart to determine what is right, the
4 right amount of money to award Mr. Baffo for the emotional
5 damage he suffered.
6 How do you tell a person how much their
7 self-respect is worth?
8 THE COURT: You have five minutes left in your
9 first summation.
10 MR. WIGDOR: Thank you.
11 What is a fair verdict for having put Mr. Baffo
12 through this?
13 This is a very serious injury, and deserving of
14 a very large award. The defendants stripped Mr. Baffo of
15 his self-esteem and made him feel like nothing. We are
16 not appealing to your emotions but intelligence and sense
17 of fundamental fairness.
18 How do you send a message to the defendants?
19 Every day when I would take a break I would walk the
20 hallways and look across out the windows, look across out
21 to the Atlantic and the Robert Moses bridge and think
22 about how can we send a message to make sure that other
23 employers don't do what they did to Mr. Baffo. How can we
24 punish them for what they did to Mr. Baffa?
25 You, the gentlemen of the jury, have the power
506
1 to send that message, the power to make change, and the
2 power to make sure that what happened to Mr. Baffo doesn't
3 happen to anyone else. $220 million in revenues, that was
4 what the testimony was in one year, that is a lot of
5 money, folks.
6 While you have sat silently for the last week,
7 and you have listened to the witnesses, the lawyers, and
8 the judge, you folks will have the last word. On behalf
9 of Mr. Baffa, I would request that your last word be a
10 verdict in his favor, an award of $3 million in
11 compensatory damages, and an award of $8 million in
12 punitive damages.
13 That $8 million may seem like a lot of money,
14 but that's less than 4 percent of their annual revenues in
15 one year. In order to send a message, in order for them
16 to be punished, I respectfully submit that is the only
17 amount that would do that. Is that even enough? I don't
18 know. I'll leave that to you. But, gentlemen of the
19 jury, your voice must be heard.
20 Thank you.
21
22
THE COURT: Defendant.
MR. CATALANO: I told you in my opening that
23 there were absolutely no facts to indicate, infer or prove
24 that Mr. Baffa was terminated by NYIT by virtue of his
25 having discovered he had HIV on October 1.
507
1 You sat here for four days and you just heard
2 the summation, and I still haven't heard one fact. There
3 are none, because it didn't happen. There are no facts
4 whatsoever to even suggest that he was terminated because
5 he has HIV, let alone prove it by a fair preponderance of
6 the evidence.
7 I asked you to hold me to it what I said in my
8 opening, and here we are in summation, and I revert to
9 that original statement. What are the facts? There are
10 none.
11 What are facts? Rizzuto told Baffo, you know, I
12 can't have you around here with HIV. Never happened.
13 Somebody overheard Rizzuto, Rizzuto told someone else,
14 there was a conspiracy at sometime. None of that ever
15 surfaced because it's not true.
16 Not only do I ask you to look at the facts, look
17 at the testimony, take whatever you want into the jury
18 deliberation room, but I ask you to look at also the
19 inferences because this is important in most cases and
20 particularly in this one, look at the inferences to be
21 garnered from how people act, and that will prove the
22 point.
23 Essentially what Mr. Baffo is saying is, and he
24 doesn't dispute his poor performance, late -- well, isn't
25 everybody late? Did he speak to me, sitting next to me
508
1 repeatedly? Why is if Rizzuto is making up a story, why
2 is Rizzuto continuously and you will see the documents,
3 giving him memos?
4 Why, because he won't do the job. Why is he
5 telling Pilar Visconti in the summer, and she says to him,
6 well, you know, you are doing the job. So there it is.
7 He can't continue here, or whatever the words are.
8 Counsel is very good at massaging what people
9 say, and then throwing the word out lie. I'll show you
10 some lies in this case, but let's talk about the boat
11 incident. This one is stunning.
12 He learns on October 1 that he has HIV. His
13 wife has to get tested so he has to come home and tell her
14 how he got HIV. You have to go for the test. So what
15 does he come up with? A boat ride four years ago.
16 Who's the person? Where was the specialist, the
17 EMT trained person on the boat who took over? And perhaps
18 he was to the aid of the woman. How did the blood get in
19 his system three years ago? We'll get to three years ago,
20 two years ago, one year ago. How did it get in his
21 system? Why did it show up in October of '09? He made it
22 up, and counsel knew it was coming.
23 How about the trick that counsel attempted to
24 play on you, when he asked Pilar Visconti, did you talk to
25 the lawyer before you came in here today? Of course she
509
1 did, me. I spoke to her. What did I do, bring her in
2 here and get her up on the stand and say, you know
3 anything about this case? Absurd.
4 Of course lawyers talk to their witnesses
5 beforehand, and you will narrow what is going to be
6 explored with them and you tell them, tell the truth, and
7 that's what happened here. That was a trick to be played
8 on you, because he was hoping Visconti will say, well,
9 gee, was I supposed to talk to the lawyer before I got in
10 here today?
11 You learned in this trial three uncontroverted,
12 uncontradicted facts. You learned he got HIV on October
13 1. You learned that he performed poorly. Did you hear
14 anybody say he was performing well? You heard three
15 persons, his friends come in and say they liked him. They
16 thought it was a good manager.
17 Did you here Baffo say he was performing
18 exceptionally or well? How could you look at the
19 financials and come up with any other conclusion other
20 than Rizzuto should have terminated his services but for
21 the fact that he bent over backwards, that's the term,
22 bent over backwards for Baffo. He should have terminated
23 him a along time ago.
24 As Aubrey said, he didn't want to go use
25 students' hard-earned tuition or the parents' money to be
510
1 paying for the de Seversky Center. That was an important
2 feature in this case.
3 What Baffo is actually saying is I learned I had
4 HIV. He says he told Rizzuto on October 2, of course he
5 didn't and I'll show that to you in the documents, and you
6 can't fire me, and if you do, give me $11 million. Was
7 that what I just heard? 8 plus 3 or was it 8 plus 4?
8 I don't do the job. I have HIV pursuant to
9 cockamamie story and you are asking of the parents and the
10 students $12 million of the students' money because I
11 didn't do the job. That's what he's asking you and doing
12 tricks, did you talk to the lawyer before you came in here
13 today.
14 The judge will give you instructions. I know
15 you will apply the instructions to what you heard today.
16 Let's talk about how he learned that he had HIV.
17 Think about that. Who was this person? How did the blood
18 get in his system? Why does it show up three years ago?
19 Let's talk and I'll ask Ms. Beltre to show you documents.
20 He says that Evanov, he goes to Evanov -- that's
21 my circling, your Honor -- and you will see in the circle
22 there and I'm doing that for the convenience of the jury,
23 this is October 2, the day after he learns and it says one
24 year ago is circled, that's my handwriting. That's
25 October 2 he learns on October 1.
511
1 But on October 1 he told Del Valle it was two
2 years ago, and that's PL 136. So he goes on October 1.
3 He tells Del Valle it was two years ago in the summer of
4 '07, right there I underlined it in the middle, two years
5 ago, that's my handwriting, October 1 he goes into
6 Del Valle, he has to tell him some story because he has to
7 tell his wife I have HIV. Why? Because you have to go
8 get tested.
9 So he comes up with the boat story. When was
10 the boat story? He says two years ago on October 1. What
11 does he say in the transcript? He gets home and he
12 realizes that's a mistake. It wasn't two years ago.
13 Why? Because his wife reminded him, Mrs. Baffa
14 reminded him it was three years ago. That's in the
15 transcript 141
1
lines 20 to 24. Now he's all set. He's
16 reminded it was three years ago, right? The night of
17 October 1 when he learns he has HIV and that's where he
18 says it down here.
19 When I came home, I was talking to my wife about
20 it, she said, no. That was in 2006. Okay. Two years ago
21 to Del Valle in the afternoon, comes home, now it's three
22 years ago, and he goes to see Evanov the next day after
23 learning from his wife it's three years ago and what does
24 he tell Evanov? It's one year ago. You just saw it
25 October 2. Put that back up there if you don't mind.
1 He doesn't know what to say because he's
2 flummoxed because he has to tell his wife something.
3 There it is. That's the next day. Two years, my wife
4 reminds me it's three years ago, next day it's one year
5 ago. He's making it up. And he's going to ask you for
6 $11 or $12 million, whatever the number was, because he
7 doesn't do his job.
8 How about the trauma, trauma. He had more
512
9 trauma losing his job at de Seversky Center than obtaining
10 the HIV virus. I talk about inferences. What inference
11 do you garner from that? Is that anywhere near plausible?
12 That's nutty.
13 How can you possibly say that? He's going to
14 specialists, therapists, support groups, because he got
15 dismissed from NYIT? No. Because he had the HIV virus,
16 and I must say, as a human being, I'm happy that he's able
17 to do his work and perform at Applebee's.
18 Now, his dream job at de Seversky Center, let's
19 talk about that. He left the de Seversky Center. Who
20 brought him back? Rizzuto brought him back. Where did he
21 work after he left de Seversky Center voluntarily in the
22 '90s?
23 He went to the Marriott, Restaurant Associates,
24 St. Francis, Paparazzi. He's working all over the place.
25 What about the dream job at NYIT? Why did he leave? He
513
1 has to come up with something so you can give him some
2 sort of money.
3 Backdating. Let's talk about the backdating.
4 He fell into the trap when he argued backdating.
5 Put up the October 16th document first, please.
6 Okay. Backdated. Counsel says this was
7 backdated and it's a typo it says '08. Ridiculous. It
8 says approval to eliminate the general manager's position.
9 What did Aubrey say? He says, we had to get the two
10 recruitment authorizations in place.
11 Rizzuto was out as he said in Central Islip,
12 here, excuse me, and because they are closing down the
13 facilities in Central Islip as far as dining and that's
14 why it couldn't take place until later and you will see
15 the September 1 memo. My words, the smoking memo that
16 proves it all. I don't know why I have to even refer to
17 that memo.
18 You had four people come in and say we all
19 discussed this and August -- said it was agreed upon in
20 August of 2009. What possible reason would Pilar
21 Visconti, she owes her whole professional life to Robert
22 Rizzuto. That means nobody can testify in any case
23 because they owe something to somebody. Come on.
24 Redlich, he didn't know, and neither did
25 Visconti know that he had HIV until after the fact that he
514
1 was terminated. When was this conspiracy entered into to
2 ask them to lie? Who would be goofy enough or stupid
3 enough to get four people together and then say we are
4 going to make this up?
5 That's what would have had to have happened if
6 that's to be believed. You can't make that story up. We
7 are going to fire him. We are going to make believe there
8 was a reorganization and put out backdated memos.
9 If I recall jury selection certain of you have
10 computer backgrounds. He walks in here, you can't walk in
11 the federal court and say I believe it was backdated.
12 Okay. Where's your expert who can look at the metadata to
13 prove that it was backdated? You see anybody in here?
14 You deserve better. The court deserves better.
15 I said Rizzuto and NYIT deserved better. You all deserved
16 better to have somebody walk in here and spend a week of
17 our time saying I have HIV, give me $12 million and I'm
18 going to say anything about anything and hope that it
19 sticks.
20 You can't walk in without facts. What are the
21 facts that indicate that he was terminated because he has
22 HIV? If you take the argument to its logical extension,
23 whether Rizzuto learned on October 2 or October 23 becomes
24 irrelevant because what he's saying is you can't ever fire
25 me thereafter because it must be because I have HIV.
515
1 That's what he's saying to you. I can never be fired. I
2 was fired. Give me $12 million.
3 Of course you can be fired. How does he know it
4 wasn't because he's Italian American, 39 years old, wears
5 a goatee, happens to be Caucasian? How does he know those
6 aren't the factors? Because he realized if you say HIV,
7 bingo, here we go. What are the facts that indicate he
8 was terminated because he has HIV? How does he know it
9 wasn't because of, which is the truth, his horrible
10 performance?
11 Why would Rizzuto fire him? He's got a woman
12 out -- excuse me again -- he's got a woman here who
13 happens to be deaf as a supervisor. He's got somebody
14 with herpes. He, himself, his son has multiple sclerosis,
15 who's the victim here? You bet it's Rizzuto.
16 He's a hardworking guy? Levittown where I grew
17 up, we called him a hardworking stiff. He makes good of
18 himself. Now he's the head of all the dining services
19 through the NYIT, Central Islip, Old Westbury and New York
20 City, running from pillar to post, he bends over backwards
21 for Baffo and he's told by Baffo, give me $12 million
22 because I got fired. He's saying I can never get fired,
23 no matter what I do, no matter how many memos.
24 You ever hear the supervisor sitting next to him
25 six, seven, eight memos in writing? Is that possible? He
516
1 admitted it. Anthony, what can I do to help you? Lying.
2 Rizzuto says that was a smoking gun. What he meant was it
3 was smoke and mirrors by Baffo to try to say that somebody
4 had complimented him. Sure, you can have a $50,000
5 wedding and spend $122,000 in costs to put on the wedding.
6 What's that got to do with it? That's what he told you.
7 This is unbelievable. The backdating I told
8 you, he says this is backdated. Now, I'm going to tell
9 you why he actually showed his -- pardon me -- lying hand.
10 He gets terminated on October 26th. So assume we are in
11 November 15th, and you are going to backdate the memo.
12 Now, he knows in his mind he told Rizzuto on
13 October 23, right, so he's over here. He knows he told
14 Rizzuto on October 23. So he says, okay. They put this
15 October 16th memo and backdated it to be in advance of the
16 date I told him. So I have to argue that the backdating
17 took place from November 1 to October 16th because I told
18 him, Rizzuto, on October 23.
19 Well, if you really told him on October 2 what
20 he would have had said was they backdated it to August
21 30th, July 15th. He betrayed himself. He betrayed the
22 fact that he's lying to you. Look at the timeline. Let's
23 talk about the timeline.
24 Here's what happens in this case. Pardon me if
25 it's a little obscure. He's hired in the left side in
517
1 '06. He's getting unsatisfactory annual performance
2 evaluations, '07-'08. He's getting another one in
3 September 1 -- September 19, 2009, and the four people
4 come in in August of 2009 and tell you, accurately, that
5 this was all discussed.
6 He attempts to use the recruitment
7 authorizations as a sword rather than a shield. But it
8 makes sense. He's not going to terminate Baffo and the
9 September 1 memo will come up in a second, until October 1
10
11
12
13
14
and it takes time to hire people. You are not going to
lay off Baff o and now Redlich is going to use his services
and now you don't have a salesperson. So you have to get
the salesperson geared up.
So that's why you had a dining room
15 authorization and a sales position being solicited and of
16 course you are not going to say report -- whom are you
17 going to say report to? Baffo's still employed until
18 October 23. What are you going to do, say report to
19 Redlich who will soon be replacing Baffa? That all makes
20 sense.
21 Okay. Backdated. I said to him, page 201,
22 lines 20, 22, backdated he's talking about the
23 inconsistencies of Rizzuto? He says, why didn't you put
24 this in an affidavit, two-page affidavit? We are here
25 four days going over facts. How many hundreds of pages of
518
1 trial transcript are there? You are going to put it all
2 in an affidavit? That's more smoke and mirrors to try and
3 trick you. He doesn't put it in there.
4 Here. You have any facts to indicate this was
5 backdated? No. That means he commenced this lawsuit,
6 came in and told you it was backdated and he has
7 absolutely no support.
8 The courts and you and Rizzuto and NYIT deserve
9 better. You can't walk into the federal court with
10 nothing to say and hope that you give him $12 million, or
11 is it $11?
12 October 2 or 22 -- put up DJ, please. He says
13 this doesn't refer to Baffa. Of course it does. It says,
14 this is part of the reorganization, give Eric more support
15 in the area of sales as he gets repositioned.
16 Repositioned to what? He's going to take over a portion
17 of Baffo's job. This is September 1.
18 Backdated? There are no facts to indicate.
19 Where's your metadata expert to come in and show this was
20 backdated and not written on September 1? There it is in
21 a nutshell and it confirms what all those four witnesses
22 said. He wasn't doing the job. They get together.
23 Rizzuto is bending over backwards for two years, two
24 unsatisfactory performance evaluations, numerous
25 documents, and here it is.
519
1 And my goal is to bring in and make the change
2 we spoke of October 1, reorganization of the management
3 staff. What reorganization took place other than Baffo
4 being terminated and Redlich taking over his duties? Here
5 it is in a nutshell.
6 And, the last paragraph is, we are going to do
7 these two dining room position and the sales associate,
8 yes. They didn't hire a sales associate because Redlich
9 says, I can do it. It's not going to suffer so much. So
10 we saved some money.
11 But on the other hand, the last paragraph shows
12 that money he was earning, the $76,000, $79,000, whatever
13 the testimony is going to be used to replace this and he's
14 working at Applebee's. You are going to give him $11
15 million because he's able to work at Applebee's?
16 There's nothing I don't think with this
17 gentleman other than regrettably he has HIV and I'm
18 sympathetic to it. October 2, October 23, it doesn't
19 matter, but frankly it was October 23 that he told him.
20 Now, if you wouldn't mind, put up
21 Plaintiff Exhibit 12.
22 Allegedly he walks in there on October 2 and he
23 tells Rizzuto, oh, I have HIV. Now, this is his friend.
24 Now, here at 5 o'clock, Rizzuto, not surprisingly, is
25 telling him, where are you going? You didn't finish the
520
1 job and you are going to Italy?
2 You think he would have said that if he had just
3 been told and his testimony is he said take it easy, do
4 whatever you have to do. He didn't hear anything on
5 October 2 from him. All he knew as usual he was going
6 away, not doing the job and he writes to him at 5:09
7 saying, what? You are not coming back? Would anybody
8 provide that kind of response after being informed he had
9 HIV? Of course not. He didn't hear it on October 2.
10 Look at what happens on October 23 -- it's CI,
11 pl ease.
12 Here's Carol Jablonsky just joined. She knows
13 there is going to be a termination on October 23, and then
14 he learns that early in the morning at 8 o'clock, 8:30,
15 whenever it was that Baffa comes in, he tells him. Now
16 what does he do? He calls her and she says, tell me what
17 this is all about, and there it is, October 23.
18 Why, if he knew on October 2, would he possibly
19 send this e-mail? It would be impossible. He learned on
20 October 23, and he tells human resources and Carol just
21 got there, a week ago. That's what that memo says. He
22 wasn't feeling well. He came in today and said he had HIV
23 and needed to start treatment.
24 Was this part of the conspiracy? Did the four
25 of them get Carol Jablonsky who just joined and say I am
521
1 going to make up a story and I'm going to send an e-mail
2 even though I learned on October 2nd, I'm going to send
3 you an e-mail? Of course not. This is when it happened,
4 on October 23.
5 If that's not sufficient he writes to Redlich,
6 AH, he says the thing I spoke to you about is not
7 happening right away, or today at all. Redlich knew he
8 was going to be terminated. Why? He's going to take over
9 the position.
10 He knew it was going to happen that day and he
11 writes and he just said, he didn't tell him that he had
12 HIV. He said it's not going to happen today, because he
13 walked in. He says I have HIV, and they have to regroup.
14 What are they going to do?
15 I'll tell you what they did, and this is further
16 proof this happened on October 23.
17 Plaintiff Exhibit 49, the first page.
18 Here's what they did, here it is on Monday, what
19 did they do? They ripped up the $6,663 and the health
20 care they were going to pay for him through March 31, and
21 because he had HIV, not only did they not hurt him, or
22 take things away from him, or fire him, they gave him
23 another $14,000, and they gave him health care, no small
24 item, until August 31, 2010.
25 That's what they gave him on Monday, and it's
522
1 stipulated they were going to give him $6,600, plus health
2 care until March 31st and now they change it and now they
3 give him $20,000 and health care until August 31. Why?
4 Because 180 degrees different than what he's telling you
5 they felt sorry for him, or humanitarian gesture, whatever
6 words you want, they had no problem with Baffo as a human
7 being. They liked him.
8 So they said, oh, my. You know, we'll give him
9 more money, and there it is. Those three -- two e-mails
10 and that fact prove that this occurred on October 23.
11 What's the other proof by plaintiff?
12 Backdating, oops. I can't prove that. He said so. Hand
13 sanitizers, yeah, I argued there were hand sanitizers
14 because I found them when I got back from Italy. Hand
15 sanitizers were all throughout the university. He knew
16 it.
17 What did he say to me? All right, I'll give you
18 that one. You see that? You see how flippant that
19 response was. I'll throw four, five, six, seven concepts
20 out there and see if anything sticks with the jury.
21 That's insulting to you more so than to me.
22 A conspiracy. When were the discussions? Who
23 was involved? What was said? Why October 26th? Why did
24 they go through? Was it part of the formulation to come
25 up with all of this documentation on October 23? That was
1 part of the plan?
2
3
THE COURT: You have five minutes left.
MR. CATALANO: The documents, you saw the
4 financials, the financials are startling.
5 For the year 2007-2008, there was $150,000
6 profit and, yes, a gigantic loss when put down at the
7 bottom, and 8-9, it was $667,000, okay. Rizzuto made a
8 mistake. Big deal. Does that prove that he performed
523
9 well, that he was terminated because of the HIV? He came
10 in here and he intentionally lied to you, made up stuff.
11 FJ is the -- I showed you FJ, pardon me.
12 The three witnesses, nice people. What did they
13 say? We liked him as a boss. Your friend? Yeah. Okay.
14 Fine. Rizzuto said, frankly, and we are delighted he had
15 friends, and Rizzuto said that was probably one of the
16 issues, not with respect to those three people. But he
17 didn't direct the workforce.
18 Who's Rizzuto? Rizzuto is a hardworking man who
19 employs people of all ages, races, colors, creeds,
20 national origins, disabilities or not, who suffered his
21 own life challenges, who is a friend of Baffa.
22 Who's Baffo? Someone who conceded he's late.
23 Everyone's late. Someone who admits that Robert tried to
24 better his performance. Someone who said, maybe I don't
25 want to be great.
524
1 Here's Robert saying, how about this book, Good
2 to Great and he said it was a tough read. That just shows
3 you Rizzuto. He's a hardworking guy. A tough read, so he
4 gives it to him. Redlich says, yeah, he's giving books
5 all the time. What did Baffo say? Maybe I don't want to
6 be great.
7 Here it is in final, Judge, and I'm done. 253.
8 I asked him, do you have any facts to indicate whatsoever
9 that you were discriminated against, this is lines 23 to
10 25, down at the bottom, and to the next page:
11 So in summation is it fair to say you have no
12 facts, and then it goes on and lines 9 through 14:
13 The fabrication of all those documents and
14 e-mail that occurred after I told Robert, and he had to
15 scurry to cover the fact that he no longer wanted to work
16 with me because I was HIV positive. Those are the facts.
17 Some of those documents that are up there.
18 He says his whole case is backdated. That's
19 what he said. What did he say about backdating? Take a
20 look at 201, lines 20 to 22 with respect to the most
21 important document, one of the two, October 16th. He says
22 fabrication of documents is his case.
23 Now, I asked him, do you have any facts to
24 indicate that the October 16th memo is not backdated? No.
25 No. So he came in here, made up a story, made up a story
525
1 how he got the HIV. There is no fact. He was not
2 terminated. He was terminated because of the
3 reorganization stemming from his poor performance.
4 There was eight times the profit in 9-10 on
5 Exhibit FU, $1 .2 million, versus the time that he was in
6 charge of the expenses and revenue $150,000. That's
7 $1 million difference, eight times the profit that doesn't
8 have to come out of the hardworking parents, or can be
9 scholarships to students at NYIT.
10 This case is nonsensical. I am quite sure that
11 you will review the facts and listen to the judge's
12 testimony and all I excuse me -- instructions -- and
13 what I can tell you is that I have said repeatedly, there
14 is nothing in this case other than his hope that you give
15 him big money because he didn't do the job.
16
17 Honor?
18
19
20
21
22
MR. WIGDOR: Can we turn on the lights, your
THE COURT: Yes.
MR. WIGDOR: Thank you.
May I proceed?
MR. WIGDOR: I guess we are not going to hear
23 why Mr. Rizzuto lied in his affidavit.
24 I guess we are not going to hear why he lied in
25 his deposition about telling Mr. Baffa to write the memo
526
1 that ends up saving the money. I guess we are not going
2 to hear about why Mr. Aubrey lied under oath in his
3 deposition when he said he didn't recall and then he comes
4 into court and then says, now I recall the shock on his
5 face on October 23rd.
6 You know, we have heard that there are no facts
7 to support this case. We have heard that many, many times
8 from defense counsel. He knows better. There are -- the
9 way he would have it, folks, is that in order to prove a
10 case, Mr. Rizzuto would have to get on the stand and admit
11 it, and say, yes. I discriminated against him, or, yes, I
12 considered the HIV, or there has to be an e-mail that says
13 that.
14 That's now how these cases work. The facts have
15 been clear in this case. There have been inconsistencies.
16 There have been lies under oath. Their positions don't
17 make sense because, again, just go back and read that
18 affidavit which was a couple weeks after the termination.
19 There's nothing about these purported -- the purported
20 agreement in August between Mr. Redlich, Mr. Rizzuto,
21 Ms. Visconti and Mr. Aubrey. There's nothing in there
22 about them.
23 That's because it didn't happen. What's going
24 on here is let's come into trial and put our best case
25 forward. Now, it's interesting because it seems from the
527
1 closing argument that the reason for the termination now
2 is all about performance. It sounds like they have done
3 away with the reorganization. I mean, that's what it
4 seemed like in the closing.
5 It says -- I think he said the truth is he was
6 fired because of his performance. It's very interesting,
7 very interesting because Exhibits 13, which is the
8 contemporaneous memo, says nothing about performance.
9 Exhibit 81, and we know Mr. Rizzuto can write, we saw a
10 lot of writing, a lot of bullet points, there's nothing
11 about performance, and Exhibit 78, there's nothing about
12 performance.
13 So what they are trying to do is try to shift
14 things, shift things away. I'm not going to take pot
15 shots at opposing counsel, and let me just say that he
16 spent about ten minutes in -- the first ten minutes of his
17 opening trying to say that Mr. Baffo did not get HIV the
18 way he has testified.
19 First of all, the judge is going to tell you
20 that HIV is a disability. So in some respects it's
21 irrelevant how he got HIV, in all respects. Then he said
22 where's the police officer or the first aid person? He
23 could have done all that. He could subpoena the Circle
24 Line. He could subpoena the first aid people. He could
25 have questioned Mr. Baffa at his deposition on those
1 subjects. He could have done all that.
2 And then he could have laid out and actually
3 could have had a basis to lay out in front of you that
4 what Mr. Baffo is saying is untrue. He chose not to do
528
5 that. Instead, he just tries to create this doubt about
6 how he contracted HIV, to try and make it look like, you
7 know, maybe he's gay or intravenous drug user or he's
8 cheating on his wife. There's no evidence to that and
9 it's reprehensible.
10 Now, the backdated, well, he talked about
11 Exhibit DJ. The whole thing was about Exhibit 13. That
12 was the exhibit I just showed you, Plaintiff Exhibit 13,
13 and like I said, it is dated 2008, so I'm not really sure
14 what that is.
15 As for the severance, now he tried to say they
16 showed this compassion to increase the amount of money
17 they were going to give him in severance. If there was
18 some true compassion why didn't they just give him the
19 health care in a time of need? What they tried to do is
20 give him a little more because they knew what was going
21 on.
22 Where is Ms. Jablonsky, by the way? She's the
23 HR person. Did she testify? Did they call her? No.
24 They increased it, but they wanted him to sign that
25 severance offer that would waive his right to be here.
529
1 He didn't take the money and the health care.
2 He wanted to be here. He wanted to prove his case, and he
3 wanted you to decide his fate.
4 The hand sanitizers? You know, I think
5 Mr. Baffo said I'll give you the benefit of the doubt.
6 That's what he said, and did we ever see any policy
7 regarding any written policy about hand sanitizers had to
8 go into the de Seversky Center upon his return from
9 vacation? It's a bit curious, I have got to say.
10 So, ladies and gentlemen, I would ask that you
11 look at all -- gentlemen, I'm used to saying that, but you
12 are all gentlemen, excuse me gentlemen of the jury, I
13 would ask you to look at all of the evidence. I admit
14 there's no, and I said it from the beginning, there is no
15 e-mail that admits he was terminated because he was HIV
16 positive. It doesn't happen.
17
18
19
But look at all of the inconsistencies --
THE COURT: You have to come to a conclusion.
MR. WIGDOR: Look at all the lies and I would
20 ask that you return a verdict in Mr. Baffo's favor.
21
22
Thank you. Thank you, your Honor.
THE COURT: We'll take a ten-minute break and
23 then I'll give you the law, which will take me about 12
24 minutes.
25 We'll take a short break, about ten minutes.
1 Don't discuss the case. Don't form an opinion.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
See you in about ten minutes.
(Jury leaves the courtroom.)
(Recess.)
530
Court's Charge
1 THE COURT: All right.
2 Bring the jury in.
4 proceedings.)
5
6
7
8 Now that the evidence in the case has been
531
9 presented and the attorneys for the parties have concluded
10 their closing arguments, it's my responsibility to
11 instruct you as to the law that governs this case. My
12 instructions will be in three parts.
13 First, I'll give you instructions regarding the
14 general rules that define and govern the duties of a jury
15 in a civil case.
16 Second, I will instruct you as to the legal
17 elements of the causes of action relevant to this case.
18 And, third, general instructions regarding your
19 deliberations.
20 It is your responsibility and your duty to find
21 the facts from all the evidence in this case. You are the
22 sole judges of the facts, not counsel, not myself. I want
23 to impress upon you again the importance of that role. It
24 is for you and you alone to pass upon the weight of the
25 evidence, to resolve such conflicts as may have appeared
Court's Charge
532
1 in the evidence and to draw such inferences as you deem to
2 be reasonable and warranted from the evidence, or the lack
3 of evidence. With respect to any question concerning the
4 facts, it is your recollection of the evidence and yours
5 alone that controls.
6 Parties are equal before the court. This case
7 should be considered and decided by you as an action
8 between parties of equal standing in the community. All
9 persons, corporations or entities stand equal before the
10 law, and are to be dealt with as equals in this court.
11 All parties from entitled to equal consideration.
12 No party is entitled to sympathy or favor. You
13 must judge the facts and apply the law as I shall instruct
14 you without bias, prejudice or sympathy to either the
15 plaintiff or the defendants.
16 Burden of proof.
17 In a civil case such as this, the plaintiff has
18 the burden of proving the essential elements of his claims
19 against the defendants by a preponderance of the evidence.
20 To establish a claim by the preponderance of the evidence
21 means simply to prove that something is more likely. A
22 preponderance of the evidence means the greater part of
23 the evidence.
24 That does not mean the greater number of
25 witnesses or the greater length of time taken by either
Court's Charge
533
1 side. The phrase preponderance of the evidence refers to
2 the quality of the evidence, the weight and effect it has
3 on your minds.
4 If the plaintiff is to win, the evidence that
5 supports his claim must appeal to you as more nearly
6 representing what took place than the evidence opposed to
7 his claim. To put it differently, if you put plaintiff's
8 and defendants' evidence on opposite sides of the scale,
9 plaintiff would have to make the scales tip somewhat
10 slightly on his side. If the evidence weighs so evenly
11 that you are unable to say there is a preponderance on
12 either side, then you must resolve it in defendants'
13 favor.
14 To recapitulate briefly, the preponderance of
15 the evidence means such evidence as when considered and
16 compared with that opposed to it produces in your mind a
17 belief that what is sought to be proved is more likely the
18 case than not the case.
19 The evidence upon which you are to decide what
20 the facts are comes in several performance, sworn
21 testimony of witnesses, both on direct and
22 cross-examination, and regardless of who called them,
23 exhibits that the court has received into evidence, and
24 facts to which the lawyers have agreed or stipulated.
25 Certain things are not evidence, and are to be
Court's Charge
534
1 disregarded in deciding what the facts are. Again,
2 statements and arguments by lawyers are not evidence,
3 objections to questions are not evidence, testimony that
4 has been excluded or stricken is to be disregarded,
5 anything you may have seen or heard outside the courtroom
6 is not evidence.
7 In deciding what testimony to believe.
8 In deciding what the facts are, you must
9 consider all the evidence that has been offered. In doing
10 this you must decide which testimony to believe and which
11 testimony not to believe. In making that decision there
12 are a number of factors you may take into account
13 including the following, the witness's opportunity to
14 observe the events he or she described, the witness's
15 intelligence and memory, the witness's manner while
16 testifying, does the witness have an interest in the
17 outcome of the case? Does the witness have any bias or
18 prejudice concerning any part of the matter involved in
19 this case? The reasonableness of the witness's testimony,
20 considered in the light of all the evidence in the case.
21 In considering the testimony of the plaintiff or
22 the defendants, you must apply the same standards as you
23 apply to any other witness. If you find that a witness's
24 testimony is contradicted by what that witness has said or
25 done at another time, or by testimony of other witnesses,
Court's Charge
535
1 you may disbelieve all or any part of the witness's
2 testimony.
3 But in deciding whether or not to believe the
4 witness, keep this in mind. People sometimes forget
5 things. A contradiction may be an innocence lapse of
6 memory, or it may be an intentional falsehood. Consider,
7 therefore, whether it has to do with an important fact or
8 only a small detail. Different people observing the same
9 event may remember it differently and, therefore, testify
10 about it differently.
11 You may consider these factors in deciding how
12 much weight to give to the testimony. You are not to give
13 any greater weight or credence to a witness solely because
14 of his or her title or position.
15 We now go to the law portion of this case.
16 Plaintiff claims that he was unlawfully
17 terminated from his employment with NYIT because of his
18 disability in violation of the federal Americans with
19 Disability Act which I call the ADA and the state human
20 rights law. It is unlawful for an employer to
21 intentionally discriminate against an individual with a
22 disability because of that person's disability.
23 Plaintiff claims that defendants intentionally
24 discriminated against him by terminating him because he
25 had HIV. There are two defendants, NYIT and Robert
Court's Charge
536
1 Rizzuto. Plaintiff claims under the ADA applies only to
2 NYIT, and his claim under the state human rights law
3 applies to both defendants.
4 You must consider each of the defendants
5 separately in reaching a verdict so as to each of them.
6 Many of the same standards applies to the ADA and the
7 state human rights law claims. Accordingly, whenever
8 possible, the plaintiff's ADA and state human rights law
9 claims will be addressed together. This means certain
10 jury instructions will apply to both laws. However, there
11 are also some important differences between these laws
12 that I will discuss.
13 If you find that the plaintiff has prevailed
14 specifically on his claim for discrimination under the
15 state human rights law, you must then determine whether
16 Rizzuto can be held liable as an aider and abetter of that
17 discrimination. You will be asked to determine liability
18 separately according to the standards that I will give you
19 in these instructions.
20 Under the law having HIV is a disability. For
21 plaintiffs to prove discrimination, he must prove:
22 1. That they actually knew that he had HIV, or
23 they perceived that he had HIV.
24 2. That his disability was a motivating factor
25 that prompted the decision to terminate him.
Court's Charge
537
1 Motivating factor.
2 Plaintiff must prove that his disability or
3 perceived disability was a motivating factor that prompted
4 the decision to terminate him. Plaintiff need not show
5 that his disability or perceived disability was the sole
6 or exclusive reason for his employment decision. Instead,
7 it is sufficient that it was a motivating factor that
8 moved defendant towards the decision to terminate him.
9 On the other hand, if you find that the decision
10 to terminate plaintiff was based solely upon other
11 reasons, right or wrong, fair or unfair, other than his
12 disability or perceived disability, then you must find in
13 defendants' favor. In that case, you must not second
14 guess defendants' decision or permit any sympathy for the
15 plaintiff to lead you to substitute your judgment for that
16 of defendant, even though you personally may not approve
17 of the action taken and would have acted differently under
18 the circumstances.
19 Employer's judgment.
20 The law allows an employer to decide to
21 terminate an employee for any reason or no reason. But it
22 may not do so for a discriminatory reason. The decision
23 to terminate may be for a good reason, a bad reason or no
24 reason at all, so long as the decision was not motivated
25 by the unlawful discrimination.
Court's Charge
538
1 Therefore, plaintiff must show more than the
2 defendant made an unwise decision or acted arbitrarily.
3 Good faith or negligent errors in an employer's judgment
4 are not, standing alone, evidence of unlawful
5 discrimination. If you find that defendants' decision to
6 terminate plaintiff was because of reasons other than his
7 disability or perceived disability, you must find in
8 defendants' favor.
9 Only if you find that defendant was motivated,
10 at least in part, by the disability or perceived
11 disability, can you find in plaintiff's favor.
12 Corporation acts through its employees.
13 Defendant NYIT is a corporation. As a
14 corporation, you can only act through the acts of its
15 employees. I instruct you that the corporation is
16 responsible for the acts of its employees that are made
17 while acting within the scope of their duties as
18 employees.
19 I instruct you that Rizzuto, as director of
20 dining services for the NYIT, acted on behalf of NYIT.
21 Liability of individual defendants under the
22 state human rights law.
23 Plaintiff has alleged that Rizzuto is
24 individually liable under the state human rights law for
25 discriminating against him based on his disability or
Court's Charge
539
1 perceived disability. An individual defendant can be
2 liable for aiding and abetting in discrimination if he
3 actually participated in the conduct that gives rise to
4 the discrimination.
5 Plaintiff cannot establish aiding and abetting
6 claim unless you have already determined that plaintiff's
8 in his termination. If you determine that plaintiff's
10 in his termination, and that Rizzuto actually participated
11 in the discriminatory conduct, then you must find him
12 individually liable for aiding and abetting in violation
13 of the state human rights law.
14 Damages.
15 My charge to you on the law of damages must not
16 be taken as a suggestion that you should find for
17 plaintiff. It is for you to decide on the evidence
18 presented and the rules of law I have given you whether
19 the plaintiff is entitled to recover from the defendants.
20 If you decide that plaintiff is not entitled to recover,
21 you need not consider damages. Only if you decide that
22 plaintiff is entitled to recover will you consider the
23 measure of damages.
24 Importantly, you are not to consider damages for
25 lost or past or future wages. Those matters are for the
Court's Charge
540
1 court to decide. The type of damages you are to consider
2 are compensatory damages, one, punitive damages, two, and,
3 three, nominal damages.
4 Compensatory damages.
5 If you find that plaintiff is entitled to a
6 verdict, an award of damages must be reasonable. You may
7 award plaintiff only such damages as would reasonably
8 compensate him for such injury. You are not permitted to
9 award speculative damages. You are not to include in any
10 verdict compensatory or prospective loss which, although
11 possible, is not reasonably certain to occur in the
12 future.
13 If you decide that plaintiff is entitled to an
14 award of damages you may consider emotional pain and
15 suffering and mental anguish. As instructed, you may not
16 consider lost earnings or past or future wages. That is
17 for the court to decide, if you find for the plaintiff.
18 Nominal damages.
19 If you find for plaintiff but you find that
20 plaintiff has failed to prove damages, you may award
21 nominal damages. Nominal damages may not exceed $1.
22 Punitive damages.
23 Award of punitive damages is a remedy that may
24 be considered by you only if you find in plaintiff's
25 favor. Punitive damages can be awarded to plaintiff only
Court's Charge
541
1 if you find that NYIT violated the ADA. If you find for
2 plaintiff and if you award compensatory or nominal
3 damages, you may, but are not required, to award punitive
4 damages.
5 The purpose of punitive damages is to punish a
6 defendant for committing similar acts in the future and to
7 deter others from similar wrongful conduct in the future.
8 Plaintiff has the burden of proving punitive damages.
9 Punitive damages are appropriate only if you find that
10 defendants' conduct was malicious or in reckless disregard
11 of plaintiff's rights.
12 Conduct is malicious if it is accompanied by ill
13 will or spite, or if for the purposes of injuring another.
14 If you find that punitive damages are appropriate, you
15 must use reason in setting the amount. Punitive damages
16 must bear a reasonable relationship to plaintiff's actual
17 damages. Punitive damages, if any, should be an amount
18 sufficient to fulfill their purposes, but should not
19 reflect bias, prejudice or sympathy toward any of the
20 parties.
21 We now come to the conclusion, which is very
22 short.
23 I remind you once again it's your responsibility
24 to judge the facts in this case from the evidence admitted
25 during the trial, and to apply the law as I have just
Court's Charge
542
1 given it to you. Your decision should include rational
2 discussion of the evidence in this case by all of you. So
3 now I'm saying, discuss the case amongst yourselves.
4 In your deliberations you are entitled to your
5 own opinion, but you should exchange views with your
6 fellow jurors and listen carefully to each other. While
7 you should not hesitate to change your opinion if you are
8 convinced another opinion is correct, your decision must
9 be your own. If plaintiff has failed to establish any
10 essential element of his claim by a preponderance of the
11 evidence, your sworn duty is to find for the defendants.
12 Of course, if he's carried his burden as to his
13 claim, and established every essential element of those
14 claims by a preponderance of the evidence, your sworn duty
15 is to find for him a sum of money which will fairly and
16 justly compensate him.
17 If you wish to have some of the testimony
18 repeated, you may make such a request. I'll bring you
19 into court and have the court reporter read those portions
20 you desire to hear. If you wish to have some portions of
21 these instructions repeated, you may make that request.
22 Either can be accomplished by giving a note to the clerk.
23 If it becomes necessary during your
24 deliberations to communicate with me for any reason, send
25 a note through the clerk. No communication with the court
Court's Charge
543
1 except by a writing. The court will not communicate with
2 any member on the jury on any subject touching on the
3 merits of the case other than by writing or orally here in
4 open court.
5 Don't reveal to any person, not even to the
6 court, how you stand numerically or otherwise on the
7 merits of the case until you all have agreed upon a
8 verdict. What I'm saying there is, when you send a note
9 in, regardless of what you are saying, don't tell me how
10 you stand, whether it's 4 to 4, 7 to 1, I'm not supposed
11 to know, and not that I'm not supposed to know, the
12 lawyers are not supposed to know, and any note you send me
13 I have to give to them. I'll get to another point with
14 notes in a few minutes.
15 Any verdict you reach must be unanimous. That
16 means all of you have to agree. Your decision on each
17 element has to be unanimous, and the total has to be
18 unanimous.
19 Your oath sums up your duty, that you will
20 without fear or favor to any persons conscientiously truly
21 try the issues before you according to the evidence given
22 to you in open court.
23 Now what I do is I ask for a sidebar because I
24 read you my charge, that's the law, and the lawyers have a
25 copy. In case I left out a word or read it wrong, they
Court's Charge
1 will tell me.
2 Sidebar.
3 (Continued on next page.)
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
544
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Court's Charge
(Sidebar.)
MR. WIGDOR: You read it perfectly, Judge.
THE COURT: Okay.
MR. WIGDOR: It's fine.
MR. CATALANO: No problems.
THE COURT: Go back.
(Sidebar concluded.)
545
Court's Charge
546
(In open court.)
THE COURT: I read it correctly.
1
2
3 Now let me tell you what we are going to do. We
4 are going to get all the evidence together. Whether you
5 have seen it or not it's immaterial. It's all going back
6 to you, so you will get all the evidence.
7 Not only that, the law I read to you I'm going
8 to send you back copies. So you will have it because it's
9 confusing. There is no question about it. You will all
10
11
12
13
14
get a copy so you can go over it. If you have any
confusion on that, you can ask for a note.
If you send me a note, say this was an accident
case and you say, what did witness A say the color of the
light was, we are having a little confusion? I can show
15 the note to the lawyers and I can write the witness said
16 the color of the light was red and send it right back.
17 Sometimes you want to hear testimony and you
18 don't know what you want, but you want to get a flavor of
19 what the witness was saying. I don't care which witness
20 it is. If you ask for witness B, I have to bring you out
21 and the court reporter will read back the testimony. When
22 he starts reading, you are not compelled to listen to
23 everything on direct, cross, redirect, recross.
24 If you all agree you get to a point you heard
25 enough, stop the reading. I don't punish your for asking
Court's Charge
547
1 for readbacks. And how do I know you are satisfied? When
2 I see you looking around at each other, is that enough?
3 Is that enough? And everybody is shaking your head. I
4 will ask you do you all agree you have heard enough? If
5 you say yes, you can go back and you continue
6 deliberating.
7 Let's see if I covered all the points. Oh, very
8 important. The first thing you have to do is appoint a
9 foreperson -- a foreman -- normally I say a foreperson.
10 This is the first time I had an all male jury. You have
11 to appoint someone. That person only gets one vote. He
12 doesn't get any more money or any better food. So
13 immediately appoint a foreperson.
14 He will be in charge, though, because I'm going
15 to send back a verdict sheet. The verdict sheet will tell
16 you what to decide first and how to follow after you
17 answer yes or no. The verdict sheet is very important.
18 It's a road map for you to follow.
19 So it makes it easier. I will send back a
20 number of verdict sheets. You will all have it and I will
21 send back all the evidence, and the first thing you have
22 to do is appoint a foreperson and start your
23 deliberations.
24 Lunch is coming at 12. So I'm going to send you
25 back. Start your deliberations. We will get you a
Court's Charge
548
1 verdict sheet and get you the evidence and we will get you
2 the law and it will all come back to you.
3 Start deliberating.
4 (Jury commences deliberations at 11:30 a.m.)
5
6
7
8
9
10
11
12
13
14
15
16
17
THE COURT: Have you all seen the verdict sheet?
MR. WIGDOR: We haven't, your Honor.
THE COURT: You haven't?
MR. WIGDOR: No.
MR. CATALANO: We saw a draft.
MR. WIGDOR: We didn't see a draft.
We haven't seen anything.
THE COURT: How about the evidence?
MR. WIGDOR: The evidence is set.
THE COURT: You are sure?
MR. WIGDOR: You have seen it, right?
MR. CATALANO: Yes.
THE COURT: Everybody examined it because I have
18 had many a time where the wrong stuff goes in.
19 It's too important. I will check where the
20 verdict sheet is. You can be seated.
22 proceedings.)
23 MR. WIGDOR: No objections to the verdict sheet,
24 either side.
25 THE COURT: How about the defendant?
1
2
3
4
Court's Charge
MR. WIGDOR: Neither side.
MR. SPARBER: No objections, your Honor.
THE COURT: Okay.
I am sending in the charge and the verdict
549
5 sheet. I understand you all accept it, but if you want to
6 look at what's going back again before I send it back.
7
8
MR. WIGDOR: Everything is fine, your Honor.
THE COURT: The only thing we haven't sent in is
9 the evidence.
10 We are waiting for that.
11
12
MR. WIGDOR: We have it here, your Honor.
THE COURT: If so, and you have it, we'll send
13 it all back.
14
15
MR. WIGDOR: Here, your Honor.
16 Lunch comes at 12, so as soon as we hear about a
17 verdict, tell Joe where you are.
18 MR. WIGDOR: Your Honor, just for the record,
19 can I say on behalf of my team and I'm sure Mr. Catalano
20 joins me, it's been a privilege to appear before you.
21 Some might think I'm a glutton for punishment
22 appearing before you two jury trials in the span of six
23 weeks, but it was a pleasure.
24 MR. CATALANO: Finally he added the word
25 pleasure, Judge, which I was going to add.
1
2
550
THE COURT: Good.
MR. CATALANO: You have been very courteous and
3 we appreciate it.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(Recess while jury deliberates.)
1
2
(Jury enters the courtroom at 3:40 p.m.)
3 We have a note from the jury marked Court
4 Exhibit No. 4, we have reached a verdict.
5 I will have the clerk take the verdict.
THE CLERK: Mr. Foreman please rise.
Has the jury reached a verdict? Yes or no?
551
6
7
8
9 THE CLERK: Please refer to the verdict sheet.
10 Question No. 1. Did plaintiff prove that NYIT
11 intentionally discriminated against him based on a
12 disability that was a motivating factor in NYIT's decision
13 to terminate him?
14 Yes or no?
15
16
17 that NYIT intentionally discriminated against him based on
18 a perceived disability that was a motivating factor in
19 NYIT's decision to terminate him?
20 Yes or no?
21
22
JURY FOREPERSON: No.
23 that defendant Rizzuto is liable for intentionally aiding
24 and abetting in the discrimination proven against NYIT by
25 actually participating in the conduct giving rise to the
552
1 discrimination?
2 Yes or no?
JURY FOREPERSON: No. 3
4 THE CLERK: Question No. 4. In what amount if
5 any has plaintiff proven that he is entitled to damages.
6 A. Compensatory damages.
7
8
9 NYIT.
JURY FOREPERSON: The amount of $100,000.
THE CLERK: 4C, punitive damages, as against
10 In what amount?
11
12
13
JURY FOREPERSON: In the amount of $1 ,250,000.
THE COURT: Poll the jury.
THE CLERK: Be seated.
14 Gentlemen of the jury, as the court has received
15 your verdict you say you find in favor of the plaintiff as
16 to compensatory damages in the amount of $100,000.
17
18
19
20
21
22
23
24
25
verdict?
verdict?
As to punitive damages against NYIT, $1,250,000.
Juror number 1 I is that your verdict?
JUROR NO. 1 : Yes.
JUROR NO. 2: Yes.
JUROR NO. 3: Yes.
553
2 verdict?
3 JUROR NO. 4: Yes.
5 verdict?
6 JUROR NO. 5: Yes.
8 verdict?
9 JUROR NO. 6: Yes.
11 verdict?
14 verdict?
16 THE CLERK: And so say you all, yes?
17 ALL JURORS: Yes.
18 THE CLERK: Jury polled, Judge.
19 I 11 take this.
20 THE COURT: I wi 11 thank the jury and you are
21 excused, but don't leave.
22 Wait until I come back. I will talk to you, but
23 you are relieved of your duties as jurors. Please wait
24 for me.
25 (Jury leaves the courtroom at 3:45 p.m.)
Paul J. Lombardi . RMR. FCRR
1
2
554
THE COURT: Motions.
MR. CATALANO: Judge, we'd like to make a motion
3 obviously for judgment notwithstanding the verdict.
4 Would you like it on paper?
5
6
THE COURT: Yes.
MR. WIGDOR: Your Honor, I think before that's
7 done, we have the issue of economic damages that we
8 have --
9
10
11
THE COURT: I'll let that go first.
MR. WIGDOR: Okay.
THE COURT: How much time do you want to make
12 your motion?
MR. CATALANO: Two weeks, your Honor. 13
14
15
16
17
18
19
20
21
22
23
24
25
THE COURT: How much time do you want to reply?
MR. WIGDOR: Two weeks is fine, your Honor.
direct
them.
THE COURT: Okay.
The court's in recess.
MR. WIGDOR: Thank you, your Honor.
THE COURT: The students come on back.
By the way, since motions are pending, I
the jurors not to talk to you and you don't
MR. WIGDOR: Okay.
THE COURT: Because it's still pending.
wi 11
talk to
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. WIGDOR:. Yes, your Honor
MR. CATALANO: Yes, your Honor
(The matter concluded.)
555
1
$ 138 [11-492:2
1------------1 14[1] - 524:12
$1 [1] - 540:21
$1,250,D00121- 552:11,
552:17
$100,000 [21- 552:7, 552:16
$11 [4] - 510:6, 512:6,
518:11, 519:14
$12 [6] - 510:10, 512:6,
514:17, 515:2, 515:21,
518:10
$122,0DD [11- 516:5
$14,0DD [11- 521 :23
$150,000 [31- 492:20, 523:5,
525:6
$2D,ODD [11- 522:3
$220 [1] - 506:3
$50,000111- 516:4
$6,800 [1] - 522: 1
$6,663 [1]- 521 :19
$600,0DD [31- 492:13,
492:15, 492:25
$667 ,ODD [11 - 523:7
$7,000 [2]- 496:8, 496:10
$76,0DD [11- 519:12
$79,0DD [11- 519:12
'D6 [11 - 517:1
'D7 [11- 511:4
'07-'08 [1] - 517:2
'DB [11- 513:7
'09 [11- 508:21
'9Ds [1] - 512:22
141[11-511:15
15 [1] - 502:14
15th [2] - 516:11, 516:21
16 [1] - 495:16
16th [5] - 513:5, 516:15,
516:17, 524:21, 524:24
18D [11- 522:4
19 [1] - 517:3
1st [1] - 497:7
2
2116] - 510:4, 510:23,
510:25, 511 :25, 514:23,
516:19, 518:12, 519:18,
519:22, 520:5, 520:9,
520:18, 536:24, 551:16,
552:20, 552:22
2D [3J - 511 :15, 517:22,
524:20
2DD8 [1] - 511 :20
2DD7-2DD8111 - 523:5
2DDB [8]-492:11, 492:19,
492:21, 493:7. 493:8,
495:16, 495:17, 528:13
2DD9 [9] - 492:21, 493:8,
495:18, 500:16, 501:17,
513:20, 517:3, 517:4
2D1[21-517:21, 524:20
2D1D [1] - 521 :24
2D12 [1] - 489:9
20th [2] - 495:21, 495:22
22 [3J - 517:22, 518:12,
524:20
22nd 111- 501:21
1-----------1 23 [16] - 514:23, 516:13,
1 124] - 500: 16, 506:25,
1
508:12, 509:13, 510:25, 516:14, 516:18, 517:18,
511 :1, 511 :2, 511:5, 519:18, 519:19, 520:10,
511 :10, 511 :17, 513:15, 520:13, 520:17, 520:20,
516:17, 517:3, 517:9, 521:4, 521:16, 522:10,
518:17, 518:20, 519:2,
522
:
25

524
:
9
525:7, 536:22, 543:10, 23rd [5]-498:5, 498:25,
551:10, 552:18, 552:19 501:25, 502:7, 526:5
1.2 [11- 525:5 24[1] - 511 :15
1DD [1] - 489:23 25 [1] - 524:10
1D003 [1] - 489:17 253111- 524:7
1 D103 [1] - 489:21 28th [2] - 516: 10, 522:23
102 [1] - 496:4 29 [1] - 500:2
11722 [1] - 489:23 29th [1] - 499:8
1180 [
11
_489:23 2nd [111- 495:13, 496:15,
11 :3D 111 - 548:4 497: 14, 497:23, 498:24,
12 [6] - 489:9, 496:11, 499:4, 500:12, 501:11,
519:21, 529:23, 547:24,
5
o
2
:
7

503
:
2

521
=
2
31 [3J - 521:20, 521:24, 522:3
31st111- 522:2
349 [1] -498:25
38 [1] - 493:13
39 [1] - 515:4
397 [2] - 497:24, 498:3
3:40 [1] - 551:1
3:45 [1] - 553:25
A
a.m [2J - 489: 10, 548:4
abandon [11 - 500:10
abetteri11- 536:16
abetting [41 - 539:2, 539:5,
539:12, 551:24
able [3]- 504:25, 512:16,
519:15
3rd [1]- 501:17
absence [11 - 499:25
-----
4
-----i absolutely131 - 499:22,
506:23, 518:7
418]- 506:14, 510:7, 543:10,
551 :4, 552:4, 553:1, 553:3
44 [2] - 502:8, 503:25
45 [2] - 492:18, 493:4
453 [2] - 493:22, 493:24
459 [1] - 494:12
absurd [11 - 509:3
accept 111 - 549:5
accident [11- 546:12
accompanied [11 - 541: 12
accomplished [11 - 542:22
according [3] - 499:10,
46 [2] - 493:6, 493:7
49[1]-521:17
4C 111 - 552:8
536:18, 543:21
accordingly [11 - 536:7
account 111 - 534: 12
t-----------i accurate [11-492:7
accurataly[1J- 517:4
---------..... Act111- 535:19
514)-496:10, 519:24, 553:4,
5
553:6 act 121- 507:21, 538:14
5:09 [
11
_
520
:
6
acted 131- 537:17, 538:2,
538:20
6
acting 111-538:17
,____ ________ __, action 131-531:17, 532:7,
6131-496:10, 553:7, 553:9 537:17
82 [1J - 501:19 acts [41- 538:12, 538:14,
63 [2] - 501:17, 501:19 538:16, 541:6
631 [21 - 489:23, 489:23 actual 111 - 541: 16
66 [11- 501:18 ADA[61- 535:19, 536:1,
666 [1] - 489:20 536:6, 536:8, 541 :1
67 [11 - 501: 18 add [2] - 492:22, 549:25
----------i added 111-549:24
7
addition [11 - 501 :15
,____ ________ __, addreaaad [11- 536:9
7131
-
543
=
10

553
=
10

553
=
12
admit[2] - 526:10, 529:13
712-6106 [1] - 489:23
712
-6
122
[
11
_
489
:
23
admits 141 - 496:21, 498:24,
78 [3J - 495:22, 501: 10,
523
=
23

529
:
15
527
:
11
admitted 151 - 493:4, 493:6,
493:19, 516:1, 541:24
ads [11 - 499: 12
1-------8-----1 advance 111- 516:15
8181 - 494:4, 506: 11, 506:13,
510:7, 520:14, 553:13,
553:15
8-8 [1] - 523:7
81 [3J - 495:20, 501: 10, 527:9
85 [1] - 489:16
affidavit [17] - 492: 1, 492:2,
492:5, 492:6, 493:3, 493:5,
493:6, 495:8, 495:11,
500:17, 500:23, 502:14,
517:24, 518:2, 525:23,
526:18
8:3D [2] - 494:4, 520:14 afternoon [11 - 511 :21
----------i ages111-523:19
9
549:16
125 [2] - 499:6
13 [5] -495:15, 501:10,
527:7, 528: 11, 528: 12
136[1]-511:2
9111-524:12
t------------1 9-10111- 525:4
3 [5)- 506:10, 510:7, 551:22, 9:40111- 489:10
3
ago [221- 508:15, 508:19,
508:20, 509:23, 510:18,
510:24, 511 :2, 511 :3,
511:5, 511:10, 511:12,
511:14, 511:16, 511:20,
552:23, 552:25
30th [1] - 516:21
511 :22, 511 :23, 511 :24,
2
512:4, 512:5, 520:21 appropriate [21 - 541 :9, 518:23 beyond [2] - 500:3, 503:9
agree [3J - 543:16, 546:24, 541:14 bad [11 - 537:23 bias [3]- 532:14, 534:17,
547:4 approval [11 - 513:8 Baffo [71J - 491:3, 491 :5, 541:19
agreed [3]- 513:19, 533:24, approve [11- 537:16 491: 12, 491 :23, 493:2, big [2] - 523:8, 525: 15
543:7 approved l2l - 495: 13, 493:12, 493:14, 493:17, bingo [11- 515:7
agreement [11 - 526:20 499:14
495:6, 495:14, 495:23,
bit 111 - 529:9
AH [11 - 521 :6 arbitrarily [11 - 538:2
496:12, 496:17, 497:6,
blame [11 - 504:8
ahead [1J - 525:21 area111- 518:15
497:9, 497:14, 497:22,
bleeding [11 - 504:20
aid 151 - 500:9, 504:20, argue 111 - 516: 16
498:6, 498:9, 498:17,
blood [3J - 491:8, 508:18,
508:18, 527:22, 527:24 argued [2] - 513:4, 522:13
498:22, 498:24, 498:25,
510:17
alder[1J - 536:16 argument[3(- 500:10,
499:8, 499:9, 499:19,
boat[51- 508:10, 508:15,
aiding [41 - 539:2, 539:5, 514:22, 527:1
500:5, 500:8, 500:19,
508:17, 511:9, 511:10
539:12, 551:23 argumenta [3] - 500:4,
501:11, 501:12, 501:20,
body [1] - 496:6
ALL [11- 553:17 531:10, 534:2
501 :22, 501 :25, 502:6,
book 111 - 524: 1
alleged 111 - 538:23 assistant 121 - 499: 13, 504:6
502:16, 504:1, 504:13,
booka 111 - 524:4
allegedly [11 - 519:22 a880Ciate [31 - 491 :25,
505: 1, 505:4, 505: 11,
bon 131 - 496:8, 523: 13
allows 111 - 537:20 519:7, 519:8
505:14, 505:23, 505:24,
bottle [11 - 491 :8
alma 111 - 503:20 Associates 111 - 512:23
506:2, 506:9, 506:24,
bottom 121 - 523:7, 524:10
alone [4] - 507:5, 531 :24, aaaume111-516:10
507:11, 507:23, 509:17,
break [41 - 496:4, 505: 19,
532:5, 538:4 Atlanlic[11- 505:21
509:22, 510:3, 511:13,
529:22, 529:25
American 111- 515:4 attempted [11 - 508:23
515:21, 516:3, 517:8,
bridge [11 - 505:21
Americans 111 - 535: 18 attempts 111 - 517:6
517:11, 517:19, 518:13,
briefly (1] - 533:14
amount 110J - 505:4, 506: 17, attentive [11- 491 :18
519:3, 520:15, 522:6,
bring [SJ - 490: 11, 509: 1,
528:16, 541:15, 541:17, attorneys [11 - 531 :9
523:21, 523:22, 524:5,
519:1, 531:2, 542:18,
552:4, 552:7, 552:10, Aubrey (9] - 493:21, 493:22,
525:25, 527:17, 527:25,
546:20
552:11, 552:16
494:13, 500:13, 500:18,
528:4, 529:5
bringing 111 - 490:2
anguish 111 - 540: 15 509:24, 513:9, 526:2,
BAFFO 111 - 489:3
brought l2l - 512:20
anniversary111- 503:21 526:21
Baffo'a 191 - 491: 14, 500: 15,
budge [11-496:9
annual [2] - 506:14, 517:1 AUBREY [11 - 489:8
503:3, 503:10, 503:18,
budget [2] - 492:12, 492:19
504:15, 517:17, 518:17,
Answer 1101 - 494:3, 494:8, August [111- 495:5, 495:7,
529:20
bullet [11 - 527: 10
494:15, 494:17, 494:19, 495:8, 495:10, 513:19,
baaed [51-491:13, 537:10,
burden 141- 532:16, 532:18,
494:21, 498:7, 498:11, 513:20, 516:20, 517:4,
538:25, 551:11, 551:17
541:8, 542:12
498:16, 498:20 521 :24, 522:3, 526:20
basis [2] - 502:6, 528:3
business 111- 493:9
answer151- 492:18, 493:19, authorization [II- 517:15
501 :4, 501 :5, 547:17 authorizations [2] - 513: 10,
bear[11- 541:16
c
answered 111- 494:21 517:7
become [11- 503:18
ANTHONY [11 - 489:3 Avenue 121 - 489: 16, 489:20
becomes 121- 514:23, cannot [31 - 491 :22, 495:6,
Anthony1s1- 492:11, award 1121 - 505:4, 505:14,
542:23 539:5
494:15, 499:15, 504:8, 506: 10, 506: 11, 540:6,
BEFORE [11- 489:12 capacities [2] - 489:8, 489:9
516:1 540:7, 540:9, 540:14,
beforehand 111 - 509:5 captain [2] -499:13, 501:16
Anthony's [2] - 499:14, 540:20, 540:23, 541 :2,
beginning [11-529:14 care191-498:12, 502:17,
499:24 541:3
behalf 141- 491: 18, 506:8, 521 :20, 521 :23, 522:2,
anxlety[11- 504:2 awarded [11 - 540:25
538:20, 549: 19 522:3, 528:19, 529:1,
appeal 111 - 533:5
belief[11- 533:17 546:19
appealing [11- 505:16
B
Beltre [11- 510:19 career111- 496:1
appear [11 - 549:20
BELTRE 111 - 489: 19 carefully [11 - 542:6
APPEARANCES [11 - 489:14
backdate [11- 516:11
bend 111 - 491 :4 Carol [3] - 520:12, 520:20,
appeared 111 - 531 :25
backdated [191 - 495:17,
bending [11 - 518:23 520:25
appearing [11 - 549:22
513:6, 513:7, 514:8,
bends 111 - 515:20 carried [11- 542:12
Applebee' [41 - 504:6,
514:11, 514:13, 516:8,
benefit 111 - 529:5 case[47] -491:7,491:11,
512:17, 519:14, 519:15
516:15, 516:20, 517:21,
bent [2] - 509:21, 509:22 492:4, 495:6, 495:8,
applies [41- 490:16, 536:1,
517:22, 518:5, 518:6,
beat [11 - 526:24 496:19, 497:5, 499:6,
536:3, 536:6
518:18, 518:20, 524:18,
bet (1] - 515: 15 500:7, 501:7, 502:22,
apply[&J- 510:15, 532:13,
524:24, 528: 10
betrayed [2] - 516:21
508:10, 509:3, 510:2,
534:22, 534:23, 536: 10,
backdating [7] - 513:3,
batter1121 - 493:9, 504:12,
513:22, 516:24, 524: 18,
541:25
513:4, 516:7, 516:16,
504:14, 504:16, 514:14,
524:22, 525:10, 525:14,
appoint141-547:8, 547:11,
522:12, 524:19
514:15, 514:16, 518:9,
526:7, 526:10, 526:15,
547:13, 547:22
backgrounds 111- 514:10
523:24, 526:8, 547:12
526:24, 529:2, 530:1,
appreciate 111 - 550:3
backward [5] - 491 :5,
between [5] - 492:21, 495:9,
531:8, 531:11, 531:15,
approaches 111 - 504: 15
509:21, 509:22, 515:20,
526:20, 532:8, 536:11
531:17, 531:21, 532:6,
3
532:17, 533:18, 534:17, 552:23, 553: 1, 553:4, 539:22, 539:24, 540: 1, 549:3, 549:8, 549:12,
534:19, 534:20, 535:15, 553:7, 553:10, 553:13, 540:14, 540:16 549:15, 550:1, 550:4,
537:13, 541:24, 542:2, 553:16, 553:18 consideration 111 - 532: 11 551 :2, 552: 12, 553:20,
542:3, 543:3, 543:7, clerk [3] - 542:22, 542:25, considered 181 - 497: 17, 554: 1, 554:5, 554:9,
543:25, 546: 13 551:5 502:10, 504:17, 526:12, 554:11, 554:14, 554:16,
cases 131 - 502:24, 507: 19, client [2] - 491 : 19, 501 :8 532:7, 533:15, 534:20, 554:20, 554:25
526:14 clou 111 - 498:11 540:24 Court [2] - 489:22, 551 :3
CAT 111 - 489:25 closing [5J - 500:10, 513:12, considering 111- 534:21 court120J- 502:20, 514:11,
CATALANO 1121 - 489:18, 527:1, 527:4, 531 :10 conspiracy[4J- 507:14, 514:14, 518:9, 526:4,
506:22, 523:3, 545:5, cockamamie 111- 510:9 514:1, 520:24, 522:22 532:6, 532: 1 o, 533:23,
548:9, 548: 16, 549:24,
code [3J - 500:18, 500:19, contemporaneous 111 -
540:1, 540:17, 542:19,
550:2, 554:2, 554:13,
501:2 527:8 542:25, 543: 1, 543:4,
554:19, 555:2
color121 - 546:13, 546:16 contention [2] - 500:7, 502:5
543:6, 543:22, 546:1,
Catalano [6J - 490:4, 492:24,
colors 111 - 523: 19 contents 111 - 492:4
546:21, 552: 14
493:23, 501 : 1, 502:6,
coming [3J - 508:22, 520:7, continue [3] - 505: 1, 508:7,
court's 111- 554:17
549:19
547:24 547:5
courteous 111 - 550:2
Catalano's 111 - 491 : 1
commenced 111 - 518:5 Continued [3J - 530:5, 544:3,
Courthouse 111 - 489:5
Caucasian 111- 515:5
commences 111 - 548:4
545:8 courtroom [6] - 490:12,
causes 111- 531:17
committing 111 - 541 :6 continues 111- 504:1
530:3, 531:6, 534:5, 551:1,
Canter1a1- 492:12, 503:17,
common 111- 497:16 continuously 111 - 508:2
553:25
510:1, 512:9, 512:18,
communicate [2] - 542:24, contracted [31 - 500:5,
courts 111 - 518:8
512:19, 512:21, 529:8
543:1 500:8, 528:6
cover111- 524:15
center 111 - 492: 12
communlcaUon 111 - 542:25 contradicted 111 - 534:24
covered 111- 547:7
Central 15J - 489:6, 489:23,
community 111 - 532:8 contradiction 111 - 535:5
create [3J - 491:24, 493:17,
513:11, 513:13, 515:19
compared 111- 533:16 control 111 - 492: 11
528:5
certain 141- 514:9, 533:25,
compassion 121 - 528: 16, controls 111 - 532:5
cradenca111- 535:13
536:9, 540: 11
528:18 convenience 111- 510:22
credit 111 - 502: 15
challenges 111 - 523:21
compelled 111 - 546:22 conversation 111 - 499:4
creeds 111 - 523: 19
change 15J - 501 :15, 506:1,
compensate [2] - 540:8, convinced 111 - 542:8
crlmlnal 111 - 503:9
519:1, 522:2, 542:7
542:16 convoluted 111 - 492: 17
cross [4]-494:12, 497:25,
charactar111- 502:18
compensatory[8J- 503:15, cope 111- 504:11
533:22, 546:23
charge l8l - 492: 19, 525:6,
506: 11, 540:2, 540:4, copies 111 - 546:8
cross-examination 121 -
539:15, 543:24, 547:14,
540:10, 541:2, 552:6, copy 121 - 543:25, 546: 1 O
494:12, 533:22
549:4
552:16 copying 111 - 499:7
cross-examining 111 -
charged 111 - 500:23
complete121-492:7, 500:15 corporation [41 - 538: 12,
497:25
cheating 111 - 528:8
complimented 111-516:4 538:13, 538:14, 538:15
curious 111 - 529:9
check111- 548:19
computer [31 - 501 :3, 501 :4, corporations 111 - 532:9
CV-10-1245111- 489:4
chlldran 121 - 504:4, 504: 16
514:10 correct 121 - 498:7, 542:8
CYA[3J - 502:2, 502:4
chose 111 - 528:4
conceded 111 - 523:22 correctly 111 - 546:2
Cl 121 - 501 :23, 520: 1 O
concepts 111 - 522: 19 cost111-493:14 D
clrcla 111- 510:21
concerning [2] - 532:3,
costs 111- 516:5
damage 111 - 505:5
Circle [2] - 500:9, 527:23
534:18
counsel [9] - 490:24, 495:3,
damages [411- 503:13,
circled 111 - 510:24
concluded 131- 531 :9, 545:7,
508:8, 508:22, 508:23,
503:14, 503:15, 506:11,
circling 111- 510:21 555:3 513:6, 526:8, 527:15,
506:12, 539:14, 539:15,
circumstances 111- 537:18 conclusion [3]- 509:19, 531:22
539:21, 539:23, 539:24,
City 111 - 515:20 529:18, 541:21 couple [2] - 499:8, 526: 18
540: 1, 540:2, 540:3, 540:4,
civic 111- 491 :19 conduct [6] - 539:3, 539: 11, couraga111- 504:21
540:6, 540:7, 540:9,
clvll [2] - 531 :15, 532:17 541:7, 541:10, 541:12,
course 1131 - 500:24, 501 :5,
540:14, 540:18, 540:20,
clalm [BJ - 532:20, 533:5, 551:25
501 : 11, 501:18, 508:25,
540:21, 540:22, 540:23,
533:7, 536:2, 536:14, confiding 111 - 491 :9
509:4, 510:4, 515:3,
540:25, 541:3, 541:4,
539:6, 542:10, 542:13 confirm 111 - 499:24 517:16, 518:13, 520:9,
541:5, 541:8, 541:9,
claims [7] - 532:18, 535:16, confirms 111 - 518:21 521 :3, 542: 12
541:14, 541:15, 541:17,
535:23, 536:1, 536:7,
conflicts 111 - 531 :25 COURT[41J-489:1, 489:12,
552:5, 552:6, 552:8,
536:9, 542:14
confusing 111 - 546:9 490:2, 490:5, 490:10,
552:16, 552:17, 554:7
classic111-496:17
confusion 121 - 546: 11, 490:13, 505:8, 506:21,
dark 111 - 499:21
clear [2] - 496:22, 526: 15
546:14 523:2, 525:18, 525:21,
data [1] - 516:16
clearly [2] - 492:18, 496:5
connection 111 - 500:23 529:18, 529:22, 531:1,
dated [4J - 495:16, 495:17,
CLERK [16] - 551 :6, 551 :9, conscientiously 111 - 543:20 531 :7, 545:3, 545:6, 546:2,
499:8, 528: 13
551:16, 551:22, 552:4,
consldar110J - 534:9, 535:6,
548:5, 548:7, 548:12,
dates 111 - 499:24
552:8, 552: 13, 552:20,
535: 11, 536:4, 539:21,
548:14, 548:17, 548:25,
4
days [31 - 499:8, 507:1, deposition [8]- 492:14, 539:11 earning 111- 519:12
517:25 492:23, 493: 16, 494: 13, discuss [3]- 530:1, 536:12, earnings 111- 540: 16
de1s1-492:12, 503:17, 494:23, 525:25, 526:3, 542:3 eaaier111- 547:19
510:1, 512:9, 512:18, 527:25 discussed 131 - 503: 11, EASTERN [11 - 489:1
512:19, 512:21, 529:8 depression 111 - 504:2 513:19, 517:5 easy 111- 520:3
deaf111-515:13 described 111 - 534:14 discussion 121 - 495:9, 542:2 economic [2]- 503:14, 554:7
deal 111- 523:8 descriptions [21 - 499:21, discussions 111 - 522:22
effect [1] - 533:2
dealt111- 532:10 501:20 dismissed 111- 512:15
El 111 - 496:5
decide 1121 - 503: 14, 529:3, deserve121- 514:14, 518:8 dispute 111 - 507:24
eight 131 - 515:25, 525:4,
533:19, 534:10, 537:20, deserved 121- 514:15 disputed 111 - 495:6 525:7
539:17, 539:20, 539:21, deserves 111 - 514: 14 disregard 111- 541:10 either16J - 495:10, 532:14,
540:1, 540:13, 540:17, deserving 111 - 505: 13 disregarded 121 - 534:1, 532:25, 533: 12, 542:22,
547:16
desire 111 - 542:20 534:4 548:24
decided [2] - 495:5, 532:7
detail 111 - 535:8 distress 111- 503:16 element 13J - 542: 10, 542: 13,
deciding 151 - 534: 1, 534:7, deter111- 541:7 DISTRICT l3l - 489:1, 489: 1, 543:17
534:8, 535:3, 535:11
determine [-41 - 505:3, 489:12 elements 121- 531:17,
decision [23] - 491:16,495:7,
536:15, 536:17, 539:8 disturbing 111 - 497:11 532:18
496:16, 500:2, 503:5,
determined 111 - 539:6 DJ 1-4]-500:16, 500:17, eliminate [31 - 495:21,
503:8, 534: 11, 536:25,
difference 111 - 525:7 518:12, 528:11 501:13, 513:8
537:4, 537:6, 537:8, 537:9,
differences 111- 536:11 doctor 111 - 497:8 emotional 141- 503:16,
537:14, 537:22, 537:24,
different 121 - 522:4, 535:8 document [31 - 500:2, 513:5, 505:2, 505:4, 540:14
538:2, 536:5, 542:1, 542:8,
differently11- 533:7, 535:9, 524:21 emotions 111- 505:16
543:16, 551 :12, 551 :19
535:10, 537:17 documentation 111 - 522:25 employed 111- 517:17
decision's [2] - 499:10,
difficult 111 - 504:24 documents 110J- 490:17, employee 111 - 537:21
499:18
dining [6] - 499:13, 513:13, 500:11, 508:2, 510:5, employees [4] - 538:12,
dedicated 111 - 504: 18
515:18, 517:14, 519:7, 510:19, 518:25, 523:3, 538:15, 538:16, 538:18
deem 111- 532:1
538:20 524:13, 524:17, 524:22 employer [2] - 535:20,
defendant 1111 - 490:20,
dinner 111 - 503:22 donating 111 - 491 :8 537:20
506:21, 537:8, 537:16,
direct 161 - 493:21, 493:24, done171-492:5, 524:7, employer's121- 537:19,
538:2, 538:9, 538:13,
523:17, 533:21, 546:23, 527:2, 527:23, 528:1, 538:3
539: 1, 541 :6, 548:25,
554:22 534:25, 554:7 employers 111 - 505:23
551:23
director 121 - 496:2, 538: 19 doubt [41 - 500:3, 503:9, employment [2] - 535:17,
defendanrs 111 - 496: 18
disabilities 111 - 523:20
528:5, 529:5
537:6
Defendants [2] - 489: 10,
disability [331 - 491: 13,
DOUGLAS [2] - 489: 15,
employs 111 - 523: 19
489:18
491:14, 491:15, 497:3, 489:18 EMT[11 - 508: 17
defendants [16] - 491 :4,
503:4, 503:6, 527:20, down [5]-497:5, 511:18,
ends 111- 526:1
491:23, 503:24, 504:7,
535:18, 535:22, 536:20, 513:12, 523:6, 524:10
entered 111- 514:1
505:14, 505:18, 532:15,
536:24, 537:2, 537:3, downright111- 500:6
enters 131 - 490: 12, 531 :6,
532:19, 534:22, 535:23,
537:5, 537:12, 538:7, draft[2]- 548:9, 548:10
551:1
535:25, 536:3, 536:4,
538: 10, 538: 11, 538:25, draw [2] - 500:5, 532:1
entire [2] - 491 :22, 496: 1
538:21, 539: 19, 542: 11
539:1, 539:7, 539:9, dream 131 - 503:18, 512:18, entities 111 - 532:9
defendants' [8] - 500:4,
551:12, 551:18 512:25 entitled [9] - 532: 11, 532:12,
533:8, 533:12, 537:13,
Disability111- 535:19 drug 111 - 528:7 539:19, 539:20, 539:22,
537:14, 538:5, 538:8,
disbelieve 111 - 535:1 during [3] - 499:25, 541 :25, 540:5, 540: 13, 542:4,
541:10
disclose 111- 497:22 542:23 552:5
defense [2] - 495:3, 526:8
disclosed 141 - 494: 11, duties 141 - 519:4, 531 : 14, equal 141 - 532:6, 532:8,
define 111- 531 :14
495:14, 495:23, 503:2 538:17, 553:23 532:9, 532: 11
degrees 111 - 522:4
disclosing 111 - 502:6 duty 151 - 491:19, 531:20, equals 111 - 532: 10
Del [4J-511:1, 511:3, 511:6,
discovered 111 - 506:25 542:11, 542:14, 543:19
Eric 111- 518:14
511 :21
discriminate 111 - 535:21
errors 111 - 538:3
deliberates 111 - 550:5
discriminated 1s1 - 524:9,
E ESQ[SJ-489:15, 489:15,
deliberating [21 - 547:6,
526: 11, 535:24, 551: 11,
e-mail 1131 - 499:6, 499: 19,
489:18, 489:19, 489:19
548:3
551:17
essential [31- 532:18,
deliberation 111- 507:18
dlscrlmlnaUng 111 - 538:25
499:23, 501 :23, 502:2,
542:10, 542:13
deliberations !6J - 531:19,
dlscrlmlnaUon [13J - 491:13,
502:22, 520:19, 521 :1,
essentially111- 507:23
542:4, 542:24, 547:23,
497:2, 497:3, 500:24,
521 :3, 524: 14, 526: 12,
establish 131 - 532:20, 539:5,
529:15
547:25, 548:4
536:14, 536:17, 536:21,
e-mails 111 - 522:9
542:9
delighted 111- 523:14
537:25, 538:5, 539:2,
established 111- 542:13
demonstrates 111 - 500:3
539:4, 551 :24, 552:1
early 111- 520:14
esteem 111- 505:15
denial 111- 503:1
discriminatory [2] - 537:22,
earned 111- 509:25
5
evaluations [2] - 517:2,
F
Fifth 121 - 489:16, 489:20 friend [9] - 491: 10, 496: 14,
518:24
Evanov14J-510:20, 511:22,
fabrication 121 - 524:13,
figure [11 - 492:22 496:22, 497:17, 502:11,
511:24
524:22
filed [1] - 500:23 519:23, 523:13, 523:21
evenly 111 - 533: 1 o
face 131 - 494:9, 495:1, 526:5
filled [11 - 491 :25 friends 131 - 502:9, 509: 15,
event [11 - 535:9
facilities [11- 513:13
final [1J - 524:7 523:15
events [1J - 534:14
fact 111] - 496:24, 500:8,
flnally [11 - 549:24 front [11 - 528:3
evidence [54J-490:17,
503: 1, 507:2, 509:21,
financials151- 493:1, 493:7,
FU [11 - 525:5
490:18, 497:21, 497:22,
513:25, 516:22, 522: 10,
509:19, 523:4 Fulbrlght [11 - 489:20
499:5, 500:6, 501:7, 501:9,
524:15, 525:1, 535:7
finders [11 - 496:24 fulfill [1]-541:18
503:3, 507:6, 528:8,
factor1111- 491 :16, 503:5,
fine [41 - 523:14, 545:4, fundamental [1J - 505:17
529:13, 531:8, 531:21,
503:7, 536:24, 537:1,
549:7, 554:15 future [51 - 539:25, 540:12,
531:25, 532:1, 532:2,
537:3, 537:7, 539:7, 539:9,
finish [1J- 519:25 540:16, 541:6, 541:7
532:3, 532:4, 532:19,
551:12, 551:18
fire l6l - 491: 16, 510:6,
532:20, 532:22, 532:23,
factors [3] - 515:6, 534: 12,
514:7, 514:24, 515:11,
G
533: 1, 533:2, 533:4, 533:6,
535:11
521:22
533:8, 533:10, 533:15,
facts [281 - 506:23, 507:3,
fired [13] - 491 : 11, 491 :24,
gameq11- 512:11
533:19, 533:23, 533:25,
507:9, 507: 11, 507:16,
496:12, 496:21, 498:6,
garnered [11 - 507:21
534:2, 534:3, 534:6, 534:9,
509:12, 514:20, 514:21,
502:23, 503:24, 515:1,
Gaughran [11 - 499:7
534:20, 538:4, 539:17,
515:7, 517:25, 518:4,
515:2, 515:3, 515:22,
gay [1] - 528:7
541 :24, 542:2, 542:11,
518:18, 524:8, 524:12,
527:6
geared [1J- 517:13
542:14, 543:21, 546:4,
524:16, 524:23, 525:11,
first [181 - 490:20, 490:23,
gee [1] - 509:9
546:6, 547:21, 548:1,
526:6, 526:14, 531:21,
491 :3, 492: 1, 492:9, 505:9,
general [61 - 500:20, 501 :12,
548:12, 548:13, 549:9
531:22, 532:4, 532:13,
513:5, 521 :17, 527:16,
503:19, 513:8, 531:14,
exactly l2l - 494: 19, 494:22
533:20, 533:24, 534: 1,
527:19, 527:22, 527:24,
531:18
examination [3J - 493:21,
534:8, 541 :24
531 :13, 547:8, 547:10,
gentleman [1J- 519:17
494:12, 533:22
failed [2] - 540:20, 542:9
547:16, 547:21, 554:9
gentlemen [81 - 490:25,
examined [11 - 548: 17
failure [3] - 496:20, 504:2,
firsthand [1J - 491:21
505:25, 506: 18, 529: 10,
examining [11- 497:25
504:3
fiscal [11 - 492: 11
529:11, 529:12, 552:14
exceed [11 - 540:21
fair [41 - 505: 11, 507:5,
five 131 - 505:8, 522: 19, 523:2
gesture [11 - 522:5
except [11 - 543: 1
524:11, 537:11
FJ [2] - 523:11
gigantic 111 - 523:6
exceptionally [1] - 509: 18
falrty [1] - 542: 15
flavor[1J - 546:18
given 131 - 539: 18, 542: 1,
exchange [11 - 542:5
faimen [11- 505:17
flippant111- 522:18
543:21
excluded 111 - 534:4
faith [2] - 504:9, 538:3
flummoxed 111 - 512:2
glutton [11 - 549:21
exclusive 111 - 537:6
false [11- 492: 13
folks [51 - 496:11, 497:6,
goal [1J - 519:1
excuse [4J - 513:12, 515:12,
falsehood [11 - 535:6
506:5, 506:8, 526:9
goatee 111 - 515:5
525:12, 529:12
falsehoods [11 - 496: 19
follow [2J - 547:16, 547:18
goofy [1] - 514:2
excused [11 - 553:21
family [5J - 502:9, 502: 1 o,
followlng 131 - 493:22,
govern [1J - 531:14
Exhibit (29] - 492:2, 492: 18,
504:4, 504:9, 504:25
495:22, 534: 13
governs [1J - 531:11
493:4, 493:5, 493:6, 493:7,
far[1J - 513:13
food 111-547:12
great [2] - 523:25, 524:6
493:13, 495:15, 495:20,
fast 11] - 503: 12
foreman [21 - 547:9, 551:6
Great [11 - 524:2
495:22, 496:4, 496:5,
fate 11] - 529:3
FOREPERSON [6] - 551 :8,
greater E4l - 532:22, 532:24,
499:6, 500:16, 501:10,
Father's 111 - 504: 15
551: 15, 551 :21, 552:3,
532:25, 535: 13
501:17, 501:23, 502:7,
fatigue [1J - 504:2
552:7, 552:11
grew [1J - 515:16
503:25, 519:21, 521:17,
favor [111- 503:10, 506:10,
foreperson [41 - 547:9,
grips [1] - 504: 10
525:5, 527:9, 527:11,
529:20, 532: 12, 533: 13,
547:13, 547:22
groups 111 - 512: 14
528:11, 528:12, 551:4
537:13, 538:8, 538:11,
forget [1] - 535:4
guess [41 - 525:22, 525:24,
exhibit [11 - 528:12
540:25, 543:20, 552: 15
form 111 - 530: 1
526:1, 537:14
exhibits 131 - 495:15, 501 :18,
Fax [1] - 489:23
former [11 - 496:22
gun [2] - 502:22, 516:2
533:23
FCRR [11 - 489:22
formulatlon [11 - 522:24
guy[2] - 515:16, 524:3
Exhibits 111- 527:7
faar [11 - 543:20
fortunately [1] - 496:23
expenses [11 - 525:6
feature [11 - 510:2
forward [3J - 495:20, 499: 15,
H
expert121 - 514:12, 518:19
federal [3] - 514: 11, 518:9,
526:25
half [11 - 499:2
explain [1] -492:14
535:18
forwards [1J - 496:16
explored 111 - 509:6
Federal [11- 489:23
four[121- 495:4, 495:5,
hallways [11 - 505:20
extension [1J - 514:22
feelings [2] - 504:2, 504:3
495:9, 507:1, 508:15,
hand 18]-516:9, 519:11,
eyes [1] -491:10
fell [21 - 503:20, 513:4
513:18, 514:3, 517:3,
522:12, 522:13, 522:14,
fallow 111 - 542:6
517:25, 518:21, 520:24,
529:4, 529:7, 537:9
felt 11] - 522:5
522:19
handwriting [21 - 510:24,
511:5
few 121 - 500:24, 543: 14
Francis [1J - 512:24
happy[1J- 512:16
frankly[2]- 519:19, 523:14
6
hard [2] - 503: 18, 509:25 HONORABLE [IJ- 489:12 instead [2] - 528:5, 537:6 537:19, 538:3, 554:3
hard-earned [11- 509:25 hope13J - 514:18, 518:10, INSTIT\JTE [11 - 489:7 July [11 - 516:21
hardworking [6] - 504:18, 525:14 instruct [5] - 531 :11, 531 :16, jumped [1] - 504:20
515:16, 515:17, 523:18, hopefully [II - 500:9 532:13, 538:15, 538:19 June [11 - 489:9
524:3, 525:8 hoping [11 - 509:8 Instructed [11 - 540: 15 Juror [41 - 552: 18, 552:20,
harm [11 - 503: 16 horrible 111 - 515:9 instructions [9] - 510:14, 552:23, 553:4
head [41- 491:8, 504:23, horribly 111 - 504:23 510:15, 525:12, 531 :12, JUR0R[8]- 552:19, 552:22,
515:18, 547:3 hour [11 - 499:2 531 :13, 531 :18, 536:10, 552:25, 553:3, 553:6,
health 171- 502:17, 521 :19, household [1J - 504:23 536:19, 542:21 553:9, 553:12, 553:15
521 :23, 522: 1, 522:3, HR [5] - 499:7, 499:20, insulting [11 - 522:21 juror [41 - 553: 1, 553:7,
528:19, 529:1 499:23, 500: 13, 528:23 Integrity [11 - 502: 18 553:10, 553:13
hear [101- 509:13, 515:24, HR's [11 - 499:21 intelligence 121 - 505: 16, jurors [4J - 491: 19, 542:6,
520:4, 520:9, 525:22, human [12] - 504:19, 512:16, 534:15 553:23, 554:22
525:24, 526:2, 542:20,
520:20, 522:6, 535:19, Intentional [2] - 491: 13, JURORS 111- 553: 17
546:17, 549:16
536:2, 536:7, 536:8, 535:6 Jury [3J - 490: 12, 530:3,
heard (141 - 492:4, 503: 16,
536:15, 538:22, 538:24, intentionally [5] - 523: 10, 531:6
504:8, 506:19, 507:1,
539:13 535:21, 535:23, 551: 11, JURY [6] - 551 :8, 551: 15,
507:2, 509:14, 510:7,
humanitarian 111 - 522:5 551 :17, 551 :23 551:21, 552:3, 552:7,
510:15, 526:6, 526:7,
hundreds 111- 517:25 lnterest[1J- 534:16 552:11
534:5, 546:24, 547:4
hurt 111 - 521 :21 interesting Ill - 526:25, jury [281 - 489: 12, 490:2,
heart [1J - 505:3 527:6, 527:7 490: 11, 490:25, 491: 17,
held [11- 536:16
I
Intravenous [11 - 528:7 505:25, 506:19, 507:17,
help l31- 496:3, 504:9, 516:1 involved [3] - 496:5, 522:23,
510:22, 514:9, 522:20,
herpes [1J-515:14
ill [1(-541:12
534:18
529:12, 531:2, 531:14,
herring 111- 500:15
Immaterial [11 - 546:5
Irrelevant [2] - 514:24,
536:10, 543:2, 547:10,
hesitate [11 - 542:7
immediately 111 - 547:13
527:21
548:4, 549:22, 550:5,
hlmself[4J- 504:4, 515:14,
importance 111 - 531 :23
Islip [51 - 489:6, 489:23,
551:1, 551:3, 551:7,
515:18, 516:21
Important [111 - 492:5,
513:11, 513:13, 515:19
552:12, 552:14, 553:18,
hire [2J - 517:10, 519:8
497:21, 499:5, 507:19,
issue [11 - 554:7
553:20, 553:25
hired 111- 516:25
510:1, 524:21, 535:7,
issues [2] - 523:16, 543:21
justify l31 - 492:10, 496:23,
hit [1] - 491 :7
536:11, 547:8, 547:17,
ltallan 111 - 515:4
500:12
HIV [55] - 491 :9, 494:11,
548:19
ltaly[2]- 520:1, 522:14
justly111- 542:16
494:15, 495:14, 495:24,
Importantly [11 - 539:24
item [11 - 521 :24
497:15, 497:23, 498:9,
impossible[11- 520:19
K
499:9, 500:5, 500:8,
impress [1J - 531 :23
J
501 :25, 502:9, 502:23,
incident 111 - 508: 11
keep 111 - 535:4
503:2, 504:7, 506:25,
Include [2] - 540:9, 542: 1 Jablonsky [41 - 501 :24,
key[1]- 502:10
507:5, 507:12, 508:12,
including 111 - 534: 13
520:12, 520:25, 528:22
kind [11 - 520:8
508:14, 509:12, 510:4,
inconsistencies [6J - 496: 18, Jaworski [11 - 489:20
knOWS(4] - 516:12, 516:13,
510:8, 510:16, 511:7,
496:19, 503:1, 517:23, job 1191 - 496: 14, 499:20,
520:12, 526:8
511 :17, 512:10, 512:15,
526:15, 529:17 501 :20, 503:18, 504:11,
513:25, 514:17, 514:22,
increase [11- 528:16
504:24, 508:4, 508:6, L
514:25, 515:6, 515:8,
Increased Ill - 502: 12,
510:8, 510:11, 512:7,
lack 111 - 532:2
519:17, 519:23, 520:9,
502:15, 528:24
512:9, 512:18, 512:25,
ladies [2] - 490:25, 529:10
520:22, 521 :12, 521 :13,
indicate [7] - 506:23, 514:21,
518:17, 518:22, 520:1,
lald [11 - 528:2
521 :21, 523:9, 524: 16,
515:7, 518:4, 518:18,
520:6, 525: 15
language [1J - 496:7
525:1, 526:12, 527:17,
524:8, 524:24
jobs [3] - 491 :24, 491 :25,
lapse [11 - 535:5
527:20, 527:21, 528:6,
lndlvldual [51 - 489:8, 489:9,
499:21
large [11 - 505:14
529:15, 535:25, 536:20,
535:21, 538:21, 539: 1
Joe 111 - 549: 17
last [8] - 492:3, 506:6, 506:8,
536:22, 536:23
individually l21 - 538:24,
joined 121- 520:12, 520:25
506:9, 519:6, 519:11
hold [11 - 507:7
539:12
joins [11- 549:20
late [41 - 507:24, 507:25,
home [41- 508:13, 511 :11,
infer 111 - 506:23 Judge 171 - 503: 14, 506:8,
523:22, 523:23
511 :19, 511 :21
inference [1J - 512:10
510:14, 527:19, 532:13,
Laura 111 - 504:9
honest[1J- 504:19
Inferences [41 - 507: 19,
541 :24, 554:2
law [211 - 529:23, 531: 11,
Honor [16] - 490:24, 510:21,
507:20, 512:10, 532:1
Judge [4J - 524:7, 545:2,
532:10, 532:13, 535:15,
525:17, 529:21, 548:6,
information [11 - 499: 16
549:25, 553: 18
535:20, 536:2, 536:7,
549:2, 549:7, 549:11, Informed [11 - 520:8
JUDGE 111-489:12
536:8, 536: 15, 536:20,
549:14, 549:18, 554:6, injuring [11 - 541: 13
Judge's [11 - 525:11
537:20, 538:22, 538:24,
554:13, 554:15, 554:18, injury [2] - 505: 13, 540:8
judges 111- 531 :22
539:13, 539:15, 539:18,
555: 1, 555:2 innocence [11 - 535:5
judgment[4J- 537:15,
541 :25, 543:24, 546:7.
7
548:2 542:6, 546:22 mechanical [11 - 489:24 motions [21- 554:1, 554:21
lawa121-536:10, 536:11 llatened [11 - 506:7 medlcal l2l - 502:8, 503:25 moUvated [2J - 537:24, 538:9
lawsuit [11 - 518:5 live [11- 505:1 member [11 - 543:2 motivating [111 - 491: 15,
lawyer [41 - 497: 13, 508:25, logical [11- 514:22 members [1]-491:17 503:4, 503:7, 536:24,
509:9, 510:12 Lombardi 121 - 489:22, memo [18] - 493: 12, 493: 14, 537:1, 537:3, 537:7, 539:7,
lawyers [BJ - 490:16, 506:7, 490:25 495:19, 498:1, 500:13, 539:9, 551:12, 551:18
509:4, 533:24, 534:2, look [231 - 493:2, 493:21, 500:16, 500:18, 501:20, move [2] - 490:22, 495:20
543:12, 543:24, 546:15 494:8, 495:1, 498:1, 505:3, 513:15, 513:17, 516:11, moved 121 - 503:7, 537:8
lay121- 517:11, 528:3 505:20, 507: 16, 507: 18, 516: 15, 517:9, 520:21, moving [1]-493:9
LOW [11 - 489:4 507:20, 509:18, 514:12, 524:24, 525:25, 527:8 MR [38J - 490:3, 490:24,
lead [11 - 537: 15 516:22, 520:10, 524:20, memory[2]- 534:15, 535:6 505:10, 506:22, 523:3,
learned [81 - 509:11, 509:12,
528:6, 529: 11, 529:13, memos [6]- 500:13, 501 :10, 525:16, 525:19, 525:22,
509:13, 510:3, 510:16, 529:17, 529:19, 549:6 508:3, 514:8, 515:23, 529:19, 545:2, 545:4,
514:23, 520:19, 521 :2 looked [11 - 504:22 515:25 545:5, 548:6, 548:8, 548:9,
learning 121 - 491 :9, 511 :23 looklng 111-547:2 mental [IJ- 540:15 548:10, 548:13, 548:15,
learns [51- 508:12, 510:23, loslng [11- 512:9 mention 171 - 493:5, 495:9, 548:16, 548:23, 549:1,
510:25, 511 :17, 520:14 loss [4J - 492: 13, 504: 11, 500:14, 500:19, 501 :11, 549:2, 549:7, 549:11,
least111- 538:10 523:6, 540: 10 501 :12 549:14, 549:18, 549:24,
leave[31- 506:18, 512:25, lost [2] - 539:25, 540: 16 mentioned 111 - 500: 17 550:2, 554:2, 554:6,
553:21 love [11 - 503:20 merits 121 - 543:3, 543:7
554:10, 554:13, 554:15,
leaves [3J - 501 :4, 530:3, lunch [2]- 547:24, 549:16 message [41- 505: 18,
554:18, 554:19, 554:24,
553:25 lylng [5J - 493:20, 495:2, 505:22, 506:1, 506:15
555: 1, 555:2
left [7] - 497: 10, 505:8, 516:1, 516:9, 516:22 met [11 - 498:25
muHiple 111 - 515: 14
512:19, 512:21, 516:25, metadata [2] - 514:12,
must[241- 506:19, 512:16,
523:2, 543:25
M
518:19
514:25, 532:13, 533:5,
legal [1J - 531:16 MICHAEL 111 - 489: 15
533:12, 534:8, 534:10,
Lan [11- 500:13
mail [14] -497:10, 499:6,
middle [11 - 511 :4
534:22, 536:4, 536:15,
length [11 - 532:25
499:19, 499:23, 501:23,
might l2l - 501 :2, 549:21
536:21, 537:2, 537:12,
LEONARD [2] - 489:8,
502:2, 502:22, 520:19,
million [14] - 506:3, 506:10,
537:13, 538:1, 538:7,
489:12
521:1, 521:3, 524:14,
506:11, 506:13, 510:6,
539: 11, 539: 15, 540:6,
less [11- 506:14
526:12, 529:15
510:10, 512:6, 514:17,
541:15, 541:16, 542:8,
Levittown [1J - 515:16
mails [11 - 522:9
515:2, 515:21, 518:10,
543:15
male [IJ - 547: 10
liability131- 503:11, 536:17,
mallclous [2]- 541 :10,
519:15, 525:5, 525:7
538:21 mind [7] - 491 :24, 499: 1, N
541:12
liable[5J- 536:16, 538:24,
man [2] - 502:18, 523:18
511 :25, 516:12, 519:20,
name [11- 501:12
539:2, 539:12, 551:23
management [11 - 519:2
533:16, 535:4
narrow [11 - 509:5
llar [3J - 491 :3, 491 :20,
manager [51 - 500:20,
minds [IJ - 533:3
national 111 - 523:20
493:19
501:13, 503:19, 504:6,
minute [11 - 529:22
near[1J- 512:11
lie [51- 493:1, 493:10,
509:16
minutes [Bl - 505:8, 523:2,
nearly[11- 533:5
502:15, 508:9, 514:2
manager's [11 - 513:8
527:16, 529:24, 529:25,
necessary 111 - 542:23
lied l6l - 493: 1, 493:3,
manner[11- 534:15
530:2, 543:14
need [41- 498:12, 528:19,
523:10, 525:23, 525:24,
map [1J -547:18
mirrors [2J - 516:3, 518:2
537:4, 539:21
526:2
March [2] - 521:20, 522:2
misread [11 - 493:1
needed [6] - 498:10, 498:14,
lies [51 - 492: 1, 502:25,
marked [1J - 551 :3
mistake 131 - 492:25, 511: 12,
498:15, 498:18, 498:22,
508:10, 526:16, 529:19 523:8
Marriott [11 - 512:23
520:23
life131-505:2, 513:21,
massaging [11 - 508:8
model [IJ- 504:17
negligent [1] - 538:3
523:21 Monday[2] - 521 :18, 521 :25
mater [11 - 503:20
NEIL [11-489:19
llght [3] - 534:20, 546:14,
math [11 - 492:22
money [16] - 496: 11, 505:4,
never [8J - 491 :25, 495:7,
546:16 506:5, 506: 13, 509:25,
497:12, 501:7, 504:25,
matter151- 515:23, 519:19,
lightly [11 - 491 :20
534:18, 555:3
510:10, 513:2, 519:10,
507:12, 515:1, 515:22
llghte [1] - 525: 16
matters [11 - 539:25
519:12, 522:9, 525:15,
new [2]-491:24, 501:19
likely [6] - 497:6, 497:9,
526:1, 528:16, 529:1,
Maureen [1J-499:7
NEW [2] - 489:1, 489:7
497:14, 503:8, 532:21, 542:15, 547:12
New [7] - 489:6, 489: 17,
533:17
mean [21 - 527:3, 532:24
Monster.Com [11 - 501 :21
means [7] - 513:22, 518:5,
morning [31 - 493:25, 494:4,
489:21, 489:23, 515:19
limit[1J- 503:12
532:21, 532:22, 533: 15,
news [1J - 497:11
limits [11- 490:21 520:14
536:9, 543: 16
next[111-499:15, 501:3,
Line [21 - 500:9, 527:24 Moses [11 - 505:21
507:25, 511 :22, 512:3,
meant111- 516:2
lines [SJ - 511: 15, 517:22, moat [31 - 497:20, 507: 19,
512:4, 515:24, 524:10,
measure [11- 539:23
524:9, 524: 12, 524:20 524:20
530:5, 544:3, 545:8
llaten [41 - 497: 16, 525:11,
measures [11 - 493:14
motion 121 - 554:2, 554:12
8
nice [11-523:12 497:23, 498:5, 498:24, owe [11- 513:23 525:3, 527:2, 527:6, 527:8,
nlght[11-511:16 498:25, 499:4, 500:12, owes [21 - 496:1, 513:21 527: 11, 527: 12, 533:20
NO [8] - 552: 19, 552:22, 501: 11, 502:7. 503:2, own [41 - 497: 13, 523:21, parfonnad 121 - 509: 13,
552:25, 553:3, 553:6,
506:25, 508:12, 508:21,
542:5, 542:9 523:8
553:9, 553:12, 553:15 509:12, 510:4, 510:23, performing [4]-491:18,
nobody [11 - 513:22
510:25, 511:1, 511:2,
p 493:2, 509:14, 509:17
nominal [5J -540:3, 540:18,
511:5, 511:10, 511:17,
p.m [2] - 551 :1, 553:25
perhaps [11 - 508: 17
540:21, 541 :2
511:25, 513:5, 514:23,
permit [11 - 537:14
none [41 - 500: 14, 507:3,
516:10, 516:13, 516:14,
page [141- 492:3, 493:22,
pannittad [1J - 540:8
507:10, 507:14
516:15, 516:17, 516:18,
493:23, 494:12, 497:24,
parson [12] - 493:20, 494:20,
nonsenslcal 111 - 525: 10
516:19, 517:9, 517:18,
498:3, 496:25, 517:21,
494:23, 499:7' 505:6,
normally [11 - 547:9
518:12, 519:2, 519:18,
517:24, 521 :17, 524:10,
508:16, 508:17, 510:17,
note [SJ - 542:22, 542:25,
519:19, 519:22, 520:5,
530:5, 544:3, 545:8
527:22, 528:23, 543:5,
543:8, 543: 12, 546: 11,
520:9, 520:10, 520:13,
pages [11 - 517:25
547:11
546:12, 546:15, 551:3
520:17, 520:18, 520:20,
pain [11- 540:14
parson's 111 - 535:22
notes [11 - 543: 14
521:2, 521:4, 521:16,
Paparazzi [11 - 512:24
personal [2]- 497:18, 497:19
nothing [111- 497:4, 502:16,
522:10, 522:23, 522:25,
paper 111 - 554:4
personally[1J- 537:16
505:15, 518:10, 519:16,
524:21, 524:24, 526:5
paragraph 151 - 492: 10,
parsons [31 - 509: 15, 532:9,
525:14, 526:19, 526:21,
OF [31 - 489: 1, 489:7, 489: 11
502:14, 519:6, 519:11
543:20
527:8, 527:10, 527:11
offensive [11 - 500:6
pardon [3J - 516:9, 516:24,
Ph [11 - 489:23
notwithstanding [11 - 554:3
offer [2] - 502: 19, 528:25
523:11
phone [31 - 494:18, 501 :5
November [21 - 516:11,
offered [11 - 534:9
parents [2] - 510:9, 525:8
phrase [11 - 533: 1
516:17
office 121 - 494: 1, 494:4
parents' [11 - 509:25
piece [11 - 499:5
numbar[12J- 512:6, 532:24,
otncer [11 - 527:22
part[SJ- 518:14, 520:24,
pieces [1J - 497:21
534:12, 547:20, 552:18,
official [2] - 489:7, 489:8
522:24, 523: 1, 532:22,
Pilar [31 - 508:5, 508:24,
552:20, 552:23, 553:1,
Official 111 - 489:22
534:18, 535:1, 538:10
513:20
553:4, 553:7, 553:10,
old [11 - 515:4
participated [2] - 539:3,
pillar111- 515:20
553:13
Old 111-515:19
539:10
PL [11- 511 :2
numbers [11 - 492:21
once [11 - 541 :23
participating [11 - 551 :25
place [101- 497:2, 499:4,
numerlcally [11 - 543:6
ona [191 - 491 :24, 496:9,
partlcularly [11 - 507:20
503:19, 503:20, 512:24,
numerous [11 - 518:24
500:14, 504:13, 506:4,
parties [5] - 531 :9, 532:6,
513:10, 513:14, 516:17,
nutshell [2J -518:21, 519:5
506:15, 507:2, 507:20,
532:8, 532:11, 541:20
519:3, 533:6
nutty [11 - 512:12
508: 11, 508:20, 510:23,
parts [11 - 531: 12
plain [11 - 491 :20
NYIT1191 -506:24, 512:15,
511 :24, 512:4, 517:2,
party [11 - 532:12
plalntlff [401 - 490:20,
512:25, 514:15, 515:19,
522:18, 523:15, 524:21,
pass 111- 531 :24
490:21, 490:23, 522: 11,
518:8, 525:9, 535:17,
540:2, 547:11
past [2] - 539:25, 540: 16
532:15, 532:17, 533:4,
535:25, 536:2, 538:13,
oops 111 - 522: 12
Paul [11 - 489:22
533:9, 534:21, 535:16,
538:20, 541 :1, 551:10,
open 131 - 543:4, 543:22,
pause [3J - 490:7, 531 :3,
535:23, 536:1, 536:13,
551:17, 551:24, 552:9,
546:1
548:21
537:2, 537:4, 537:10,
552:17
opening l9l - 491 :1, 492:24,
pay [1] - 521 :20
537:15, 538:1, 538:6,
NYlra [2] - 551 :12. 551: 19
495:3, 502: 1, 502:5,
paying [1] - 510: 1
538:23, 539:5, 539:17,
502:21, 506:22, 507:8,
pending [2] - 554:21, 554:25
539:19, 539:20, 539:22,
0
527:17
people [171 - 495:2, 495:4,
540:5, 540:7, 540:13,
openings [11-490:15
495:5, 495:9, 502:8,
540:17, 540:19, 540:20,
o'clock [2] - 519:24, 520: 14
opinion [41- 530:1, 542:5,
507:21, 508:8, 513:18,
540:25, 541:2, 541:8,
oath [5J - 492:17, 493:13,
542:7, 542:8
514:3, 517:3, 517:10,
542:9, 551:10, 551:16,
526:2, 526:16, 543:19
opportunity[1J- 534:13
523:12, 523:16, 523:19,
551:22, 552:5, 552:15
objections [31 - 534:3,
opposed [2] - 533:6, 533: 16
527:24, 535:4, 535:8
Plalntlff[6] - 489:5, 489:15,
548:23, 549:2
opposing [2J - 490:24,
perceived [141 - 491: 14,
495:15, 519:21, 521:17,
obscure 111 - 516:25
527:15
491:15, 503:4, 503:6,
528:12
observe [11- 534:14
opposite [11 - 533:8
536:23, 537:3, 537:5,
plaintiff's [BJ - 533:7, 536:8,
observing [11- 535:8
orally[11- 543:3
537:12, 538:7, 538:10,
538: 11, 539:6, 539:8,
obtaining 111 - 512:9
order [3J - 506: 15, 526:9
539:1, 539:7, 539:9,
540:24, 541:11, 541:16
obviously [11 - 554:3
original [11 - 507:9
551 :18
plaintiffs [11 - 536:21
occur 111 - 540: 11
origins [11 - 523:20
percent [2] - 496:11, 506:14
plan [11- 523:1
occurred [2] - 522:10,
otherwise [11 - 543:6
perfectly [11 - 545:2
plauslble [11 - 512: 11
524:14
outcome [1J - 534: 17
perform [11- 512:17
play [11 - 508:24
October[66] - 493:8, 495:13,
outright [11 - 492: 1
performance [141 - 500:11,
played [1] - 509:7
495:16, 495:21, 495:22,
outside [11 - 534:5
500:15, 507:24, 515:10,
Plaza [11 - 489:23
496:15, 497:7, 497:14,
overheard [11 - 507: 13
517:1, 518:24, 523:24,
pleasure [2] - 549:23, 549:25
9
plus [31- 510:7, 522:1 prompted 141 - 491 : 16, read 1121- 493:17, 494:13, relationship 111- 541:16
point [3] - 507:22, 543: 13, 503:5, 536:25, 537:3 524:2, 524:3, 526:17, relevant111- 531 :17
546:24 proof[3J- 521:16, 522:11, 542:19, 543:24, 543:25, relieved 111 - 553:23
points 121- 527:10, 547:7 532:16 545:2, 546:2, 546:7, remainder111- 505:2
pollce 111 - 527:22 prospective 111- 540:10 546:21
remedy 111 - 540:23
policy [41 - 497:4, 502: 13, prove 1211 - 495:4, 497:21, readbacks 111- 547:1 remember [2] - 490: 15,
529:6, 529:7 502:24, 503:6, 506:23, reading [2] - 546:22, 546:25
535:9
poll 111- 552:12 507:5, 507:21, 514:13, realize 111- 503:11
remind 111 - 541 :23
polled 111- 553:18
522:10, 522:12, 523:8, realized 111-515:6 reminded [31 - 511: 13,
poor [2] - 507:24, 525:3
526:9, 529:2, 532:21, realizes 111- 511 :12 511:14, 511:16
poorly 111 - 509: 13
536:21, 537:2, 540:20, really131- 497:5, 516:19, reminds 111- 512:4
portion [2] - 518:16, 535:15
551:10, 551:16, 551:22 528:13
ranted 111 - 503:21
portions [2] - 542:19, 542:20
proved 111- 533:17 reason 1131 - 491 :23, 501: 1,
reorganization [8J - 499:17,
position 1111-491:25,
proven 151 - 491: 14, 502:25, 513:20, 527:1, 537:6, 499:22, 514:8, 518:14,
500:20, 501 : 13, 501 : 14,
503:3, 551 :24, 552:5 537:21, 537:22, 537:23,
519:2, 519:3, 525:3, 527:3
501 :16, 513:8, 517:15,
proves 111- 513:16 537:24, 541 : 15, 542:24
repeated [2] - 542:18, 542:21
519:7, 521 :9, 535:14
provide [2] - 504:25, 520:8 reasonable [41 - 503:9,
repeatedly [2] - 508: 1,
position's 111 - 501: 19
proving 121 - 532: 18, 541 :8 532:2, 540:6, 541:16
525:13
positions 111- 526:16
pull 111- 496:13 reasonableness 111 - 534: 19
replace 111 - 519: 13
positive 1141 - 491 :9, 494: 11,
punish [31 - 505:24, 541 :5, reaaonably121- 540:7,
replacing 111- 517:19
494:15, 495:14, 495:24,
546:25 540:11
raplln 111- 499:23
497:15, 497:23, 498:9,
punished 111- 506:16 reasons 121 - 537:11, 538:6
reply111- 554:14
499:9, 501 :25, 502:23, punishment 111 - 549:21 rebuttal 111 - 490:21
report [31- 517:16, 517:17,
503:2, 524:16, 529:16 punitive 1141 - 506: 12, 540:2, recapitulate 111 - 533: 14 517:18
possibility 111 - 502:3 540:22, 540:23, 540:25, received 131 - 497:7, 533:23, reporter[2]- 542:19, 546:21
posslbl&l4J- 513:20, 541:3, 541:5, 541:8, 541:9, 552:14
Reporter 111 - 489:22
515:25, 536:8, 540:11 541:14, 541:15, 541:17, Recess 121 - 530:4, 550:5
reporting 121- 501:19,
possibly121- 512:13, 520:18
552:8, 552: 17
raceas 111- 554:17
501:22
post 111 - 515:20
purport111- 500:12 reckless 111 - 541: 1 O
repositioned 121 - 518:15,
posted 111 - 501 :21
purported 121- 526:19 recollection 111 - 532:4
518:16
postings 111 - 499:25
purpose 111 - 541 :5 recommend 111 - 495:22
reprehensible 111 - 528:9
pot 111 - 527:14
purposes 121- 541:13,
recommendation 111 -
representing 111 - 533:6
power [3] - 505:25, 506: 1,
541:18 495:21
request 161 - 495: 19, 495:20,
506:2
pursuant111- 510:8 recommended 111 - 495: 12
501:13, 506:9, 542:18,
preJudlce131-532:14,
purview111- 503:15 record 121- 500:7, 549:18 542:21
534:18, 541 :19
put 1111 - 490:21, 499:12,
recorded 111 - 489:24 required [2] - 503:5, 541 :3
preponderance 1111 -
505: 11, 511 :25, 513:5,
records [2] - 502:8, 503:25 resolve[2]- 531:25, 533:12
497:21, 503:3, 507:5,
514:8, 516:5, 516:14,
racover131 - 539:19, 539:20, resources 111 - 520:20
532:19, 532:20, 532:22,
517:23, 518:1, 518:3,
539:22 respect l6l - 492:24, 496:3,
533:1, 533:11, 533:14,
518:12, 519:20, 523:6,
recross 111 - 546:23 505:7, 523:16, 524:20,
542:10, 542:14
526:24, 533:7
recruitment [2] - 513: 10, 532:3
presented 121- 531 :9, 517:6 rnpectfully 111- 506:16
539:18 Q
rad [2]- 500:15, 546:16 respects 121 - 527:20, 527:21
president 111- 499:14
quallty 111 - 533:2
redirect 111 - 546:23 response 121 - 520:8, 522: 19
pretext 111 - 496:17
questioned [2] - 496:2,
Redlich 110J - 496:6, 513:24, rnponslblltty 131- 531:10,
prevalled 111- 536:13
527:25
517:11, 517:19, 519:4, 531:20, 541:23
private 111 - 503:21
questions 121 - 493:22, 534:3
519:8, 521:5, 521:7, 524:4,
responsible 111 - 538: 16
privilege 111 - 549:20
quite 111 - 525: 10
526:20
Reataurant111- 512:23
problem [2] - 501 :6, 522:6 rafer[3J - 513:16, 518:13,
result 121 - 491 : 11, 503:24
problems 111- 545:5
R
551:9
resume 111 - 500: 1
proceed 111 - 525:20 refers 111 - 533: 1
resumes 111- 490:1
Proceedings 111 - 489:24
races 111 - 523: 19 raflect111-541:19
resum6 111 - 496: 17
proceedings [31 - 490:8,
raise l2l - 496:9, 496: 11
regarding 151 - 497:8,
resum6a 111- 499:20
531 :4, 548:22 range 111 - 494:5 502:13, 529:7, 531:13,
return 121 - 529:8, 529:20
produced 111 - 489:25
rather 111 - 517:7 531:18
returns 111 - 500: 1
produces 111- 533:16
ratlonal 111 - 542: 1 regardless l2l - 533:22,
reveal 111 - 543:5
professional 111- 513:21
reach 111- 543:15 543:9
revenue 111 - 525:6
profit [4] - 492:20, 523:6, reached [31 - 496:14, 551 :4, ragrettably111- 519:17
revenues [2] - 506:3, 506: 14
525:4, 525:7
551:7 regroup 111- 521 :13
ravert111- 507:8
reaching 111 - 536:5 rejected 111 - 502: 19
10
review [11- 525:11 saved [I]- 519:10 seven 131 - 492: 11, 515:25, 500:9, 507: 13, 523:22,
ride [11- 508:15 saving [2] - 493:14, 526:1 522:19 523:23, 523:24, 547:11
ridiculous111-513:7 saw [5J - 500:11, 511 :24, several [11- 533:20 sometime 121 - 494:4, 507:14
rights [10J - 502:17, 535:20, 523:3, 527:9, 548:9 severance [7]- 502:12, sometimes 121 - 535:4,
536:2, 536:7, 536:8, scale 111 - 533:8 502:15, 502:18, 502:19, 546:17
536:15, 538:22, 538:24, scales [2] - 503: 10, 533:9 528:15, 528:17, 528:25 somewhat [IJ - 533:9
539:13, 541 :11 scars [11 - 505:2 Severaky [81 - 492:12, son [1J - 515:14
ring [11 - 497: 16 scholarships [11 - 525:9 503:17, 510:1, 512:9, soon 121 - 517:19, 549:16
ripped [11- 521:19 scleroals [11- 515:14
512:18, 512:19, 512:21, sorry [21 - 493:23, 522:5
rise [3J - 539:3, 551 :6, scope [11- 538:17
529:8
sort[11- 513:2
551:25
script [3J - 496:21, 496:22,
shaking [11 - 547:3
sought [11 - 533: 17
RIZZUTO 111 - 489:7 496:25
shall [11- 532:13 sounds [1]- 527:2
Rizzuto [62] - 491 :6, 491 :20, scurry[11- 524:15
shared [2] - 497: 18
span [1] - 549:22
492:1, 493:11, 494:1,
seated [BJ - 490:6, 490:13,
sheet[91- 547:15, 547:17, SPARBER [2] - 489: 19,
494:3, 495: 1, 496: 1, 496:3, 531:7, 548:20, 551:2,
548: 1, 548:5, 548:20,
549:2
496:21, 497:3, 497:7, 552:13
548:23, 549:5, 551:9
specialist[1J- 508:16
497:10, 497:12, 497:15,
second [BJ - 490:20, 491 :4,
sheets [11 - 547:20
specialists 111- 512:14
497:18, 497:25, 498:24,
500:21, 517:9, 531:16, shield 111 - 517:7 speclflcally[11- 536:14
499:7, 499:10, 499:19,
537:13
shift [2] - 527:13, 527:14
speculative 111 - 540:9
501 :24, 502: 11, 507: 11,
see [22J - 492:9, 495:15, shock [2] - 504:3, 526:4
spend 121- 514:16, 516:5
507:13, 508:1, 508:2,
496:6, 497:8, 501 :2, shocked [11 - 495:1
spent 111 - 527: 16
509:20, 510:4, 512:20,
501:10, 501:16, 502:14, short [3J - 490:21, 529:25,
spite [11- 541:13
513:11, 513:22, 514:15,
503:25, 508:2, 510:21, 541:22
spring [1] - 502:3
514:23, 515:11, 515:15,
511:22, 513:14, 514:13, shots [11- 527:15
St [11 - 512:24
516:2, 516:12, 516:14,
522:18, 522:20, 529:6, show [12] - 493:8, 496:10,
staff [11 - 519:3
516:18, 517:23, 518:8,
530:2, 547:2, 547:7, 501 :22, 508:9, 508:21,
stand 1s1 - 492: 16, 494:25,
518:23, 519:23, 519:24,
548:10 510:5, 510:18, 510:19,
504:21, 509:2, 526:10,
523:7, 523:14, 523:15,
seem [1]- 506:13 518:19, 537:4, 538:1,
532:9, 543:6, 543:10
523:18, 524:3, 525:23,
selection [11- 514:9 546:14
standards [3] - 534:22,
526:10, 526:20, 527:9,
self[2] - 505:7, 505:15 showed [41- 516:9, 523:11,
536:6, 536: 18
536:1, 536:16, 538:19,
self-esteem 111- 505:15 528:12, 528:16
standing [2] - 532:8, 538:4
538:23, 539:10, 551:23
selfof'apect [11 - 505:7 shown [11-491:12
start [-4] - 520:23, 547:22,
Rizzuto' [3] - 500:17,
send [211-499:16, 499:25, shows [41 - 492: 18, 493:7,
547:25, 548:3
500:22, 502: 14
505:18, 505:22, 506:1, 519:11, 524:2
startling [11 - 523:4
RMR 111 - 489:22
506:15, 520:19, 521:1, side [BJ - 516:25, 533: 1,
starts [1J - 546:22
road [11- 547:18
521 :2, 542:24, 543:8, 533:10, 533:12, 548:24,
state [8] - 535: 19, 536:2,
Robert [6J - 505:21, 513:21,
543:12, 546:8, 546:12, 549:1
536:7, 536:8, 536:15,
523:23, 524:1, 524:14,
546:16, 547:15, 547:19, Sidebar [2J - 545: 1, 545:7
538:22, 538:24, 539: 13
535:25
547:21, 547:24, 549:6, sidebar [21 - 543:23, 544:2
statement [3J - 491 : 1,
ROBERT [11 - 489:7
549:12 sides [11 - 533:8
492:13, 507:9
role [21 - 504:17, 531 :23
sending 141 - 499:20, 500: 1, sign [11- 528:24
statements [11 - 534:2
room 141- 499:13, 507:18,
549:4 signs [11 - 492:3
STATES [2] - 489:1, 489:12
517:14, 519:7
sense [111- 497:16, 498:23,
sllently 111 - 506:6
States [11 - 489:5
rules [2] - 531 :14, 539:18
499:3, 499:22, 501:9,
similari21 - 541 :6, 541 :7
stemming [11 - 525:3
running [11 - 515:20
501:14, 501:22, 505:16,
simple 111 - 491 :21
stenography [11 - 489:24
runs [11 - 501 :5 517:8, 517:20, 526:17
slmply[2]- 501:15, 532:21
sticks [2] - 514:19, 522:20
sent [3] - 500: 18, 501 :24,
sitting [-4] - 501:3, 504:19,
stiff[11- 515:17
s 549:8
507:25, 515:24
still [3]- 507:2, 517:17,
sales 16J - 491 :25, 499: 13,
separately [21 - 536:5,
six [31- 515:25, 522:19,
554:25
517:15, 518:15, 519:7,
536:18
549:22
stipulated [2] - 522:1, 533:24
519:8
September[12J - 493:7,
slightly[2]-503:10, 533:10
stop [11 - 546:25
salesperson [2] - 517:12,
499:8, 500:2, 500:16,
small [2] - 521:23, 535:8
store [11 - 504:6
517:13
501:17, 501:21, 513:15,
smoke[2]- 516:3, 518:2
story [9] - 508: 1, 510:9,
SAMANA [1J - 489: 19
517:3, 517:9, 518:17,
smoking [3J - 502:22,
511 :6, 511 :9, 511 :10,
sanitizers [51 - 522: 13,
518:20
513:15, 516:2
514:6, 521:1, 524:25
522:15, 529:4, 529:7
serious [11- 505:13
sole [2] - 531 :22, 537:5
sbicken [11- 534:4
sat [2] - 506:6, 507:1
services [4] - 509:20,
solely [2]- 535:13, 537:10
sbike [11 - 498:2
satisfied [11 - 547:1
515:18, 517:11, 538:20
solicited 111- 517:15
stripped [2]- 503:23, 505:14
save [11-491:7
set[2]-511:15, 548:13
someone [111- 491 :7,
strive [11- 504:18
setting [1] - 541 :15
491 :10, 496:1, 497:17,
11
students131-510:10, 525:9, team [11- 549:19 553:18, 553:20, 554:1, truly [1] - 543:20
554:20 tears [11 - 491 :1 O 554:5, 554:9, 554:11, trusted [2] - 491 :22
students' [2] - 509:25, TECHNOLOGY111- 489:7
554:14, 554:16, 554:20,
truth [8] - 490:19, 492:7,
510:10 ten [5] - 527:16, 529:22,
554:25 492:17, 496:20, 497:16,
stuff[2] - 523:10, 548:18 529:25, 530:2
therapist.I [1J - 512:14 509:6, 515:9, 527:5
stunning [1] - 508:11 ten-minute 111 - 529:22 thereafter[1J- 514:25 truthful [1J - 493:19
stupid [11- 514:2 term 111- 509:21 therefore [4J - 501 :3, 535:7, try [7] - 496:23, 504:7, 516:3,
subject [11 - 543:2 terminate [15] - 495:5,
535:9, 538: 1 518:2, 527:13, 528:6,
subject.I 111 - 528:1 498:18, 499:11, 499:18,
third [2] - 491 :6, 531 : 18 543:21
submit111- 506:16 503:8, 517:8, 536:25, Thompson [11 - 489: 16 trying 151 - 491 :7, 492:10,
subpoena [2] - 527:23, 537:4, 537:8, 537:10, three [18] - 491 :2, 504:4, 502:4, 527:13, 527:17
527:24 537:21, 537:23, 538:6, 504:16, 508:19, 509:11, tuition [11 - 509:25
substantive 111 - 492:9 551:13, 551:19 509:14, 510:18, 511 :14,
tum 111 - 525: 16
subatitute[11- 537:15 terminated [16] - 499:2, 511:16, 511:21, 511:23, two [241 - 491 :24, 492:20,
subtract [11 - 492:20
506:24, 507:4, 509:20, 512:4, 522:9, 523:12, 495:2, 497:20, 508:20,
suddenly [11 - 501 :24
509:22, 514:1, 514:21, 523:16, 531:12, 540:3
511: 1, 511 :3, 511 :4,
suffer[2]- 504:1, 519:9
515:8, 516:10, 519:4, throughout [11 - 522: 15 511:10, 511:12, 511:20,
suffered [3J - 492: 12, 505:5,
521 :8, 523:9, 525:2, throw[1J- 522:19 512:3, 513:9, 517:24,
523:20
529:15, 535:17 throwing 111 - 508:9 518:23, 519:7, 522:9,
suffering [11- 540:15
terminating [11- 535:24 timeline [2] - 516:22, 516:23 524:21, 535:25, 540:2,
sufficient [3] - 521 :5, 537:7,
termination [121 - 492:6, Up [2J - 503: 10, 533:9 549:22, 554: 13, 554: 15
541:18
492:10, 495:12, 496:4, utle [1J - 535:14 two-page [11 - 517:24
suggest [11 - 507:4
496:5, 498:21, 500:13,
today [7] - 508:25, 509: 10, type 131 - 497:2, 497:3, 540: 1
suggestion [11 - 539: 16
520:13, 526:18, 527:1, 510:13, 510:15, 520:22, typo [11 - 513:7
Suite 111 - 489:23
539:8, 539: 1 o
521:7, 521:12
sum 111 - 542: 15
terminations [11 - 496:23 together [41 - 514:3, 518:22,
u
summation 141 - 505:9,
test [1] - 508: 14 536:9, 546:4
uHlmately [2] - 491: 11,
507:2, 507:8, 524:11
tested [2]- 508:13, 511:8 took [8] - 492:16, 493:16,
summations 121 - 490: 14,
testified [41-491:11, 493:11, 494:12, 499:4, 508:17,
495:13
490:16
493:13, 527:18 516:17, 519:3, 533:6
unable [11- 533:11
summer [21 - 508:5, 511 :3
testifies [11 - 496:2 total [1] - 543:17
unanimous [3]- 543:15,
sums 111- 543:19
testify [31 - 513:22, 528:23, touching [11- 543:2
543:17, 543:18
supervisor [2J - 515:13,
535:9 tough [2] - 524:2, 524:3
unbelievable[1J- 516:7
515:24
testifying [11 - 534: 16 toward [1] - 541 :19
uncontradlcted [11- 509:12
support [6] - 496:8, 500:7,
testlmony[28] - 490:17, towards [2] - 503:7, 537:8
uncontroverted [2] - 503:17,
512:14, 518:7, 518:14,
491:22, 493:17, 495:25, trained [1J - 508:17
509:11
526:7
496:20, 498:4, 498:8,
training [2] - 497:2, 497:4
under [101- 493:13, 526:2,
supports [11 - 533:5
503:17, 504:8, 506:4,
Transcript [11 - 489:25
526:16, 536:1, 536:2,
suppose [11 - 501 :4
507:17, 519:13, 520:3,
transcript [61 - 494:13,
536:14, 536:20, 537:17,
supposed [6J -495:18,
525:12, 533:21, 534:3,
497:24, 511 :11, 511 :15,
538:21, 538:24
498:5, 509:9, 543:10,
534:7, 534: 10, 534:11,
518:1
underlined 111 - 511 :4
543:11, 543:12
534:19, 534:21, 534:24,
TRANSCRIPT [11 - 489: 11
undue [1J - 504:25
surfaced [1J - 507:15
534:25, 535:2, 535:12,
trap [1] - 513:4
u nfalr [11 - 537: 11
surprised [11 - 494:8
542:17, 546:17, 546:21
trauma [3] - 512:8, 512:9
UNITED 121 - 489: 1, 489: 12
surprising [11 - 497: 1
tests [1] - 497:8
treatment [11 - 520:23
United 111 - 489:5
surprlslngly [11 - 519:24
lliE [56] - 489: 12, 490:2,
Trlal [11 - 490: 1
university [11- 522:15
swears 111 - 492:3
490:5, 490:10, 490:13,
trial [7] - 493: 11, 497:24,
unlawful [3] - 535:20,
sword [11 - 517:7
505:8, 506:21, 523:2,
503:9, 509:11, 518:1,
537:25, 538:4
swore 111 - 492:7
525:18, 525:21, 529:18,
526:24, 541 :25
unlawfully [2] - 503:24,
529:22, 531:1, 531:7,
535:16
sworn [41 - 492: 1, 533:20,
545:3, 545:6, 546:2, 548:5,
TRIAL [11 - 489:11
unless [11 - 539:6
542:11, 542:14
trials [11 - 549:22
sympathetlc[1J- 519:18
548:7, 548:12, 548:14,
trick [3] - 508:23, 509:7,
unsatlsfactory[2J- 517:1,
548:17, 548:25, 549:3,
518:24
sympathy[4J- 532:12,
549:8, 549:12, 549:15,
518:3
untrue[1J- 528:4
532:14, 537:14, 541 :19
550:1, 550:4, 551:2, 551:6,
tricks [11- 510:12
unwise [1J -538:2
system [3] - 508: 19, 508:21,
551:9, 551:16, 551:22,
tried [6J - 493: 1, 500:4,
UPl36]-492:15, 492:16,
510:18
552:4, 552:8, 552:12,
500:12, 523:23, 528:15,
492:17, 492:22, 493:9,
528:19
T
552:13, 552:20, 552:23,
tries [3] - 492:20, 502:14,
494:24, 504:21, 508:1,
553:1, 553:4, 553:7,
528:5
508:15, 508:21, 508:22,
table 111- 504:19
553:10, 553:13, 553:16,
true [2J - 507:15, 528:18
509:2, 509:19, 510:18,
12
511:9, 511:25, 512:5, 499:15, 506:6, 514:16, 525:25, 527:9, 546:15
513:1, 513:5, 514:4, 514:6, 520:21 wrlleS (3] - 520:6, 521:5,
515:17, 517:9, 517:13, waakand [1J - 504:15 521 :11
518:12, 519:20, 521 :1, weeks [6J - 492:5, 500:24, writing 141- 515:25, 527:10,
521:19, 522:25, 523:10, 526:18, 549:23, 554:13, 543: 1, 543:3
524:17, 524:25, 526:1, 554:15 written [31 - 501 :2, 518:20,
543:19 weighs [11 - 533: 1 O 529:7
user [11 - 528:7 weight [41 - 531 :24, 533:2, wrongful 111 - 541 :7
usual [11 - 520:5 535:12, 535:13 wrote (1] - 498:2
Waatbury111- 515:19
v WEXLER[11-489:12 y
vacation [3] - 499:15,
whatsoever [2] - 507:4,
year[10J - 492:13, 492:19,
524:8
499:25, 529:9
wholel4J-495:16, 513:21,
496:11, 506:4, 506:15,
Valla [41 - 511 :1, 511 :3, 508:20, 510:24, 511:24,
511 :6, 511 :21
524:18, 528:11
512:4, 523:5
verdict 1321 - 505: 11, 506: 10,
wife [13] - 503:20, 503:21,
years [19] - 508: 15, 508: 19,
529:20, 536:5, 540:6,
504:8, 504:12, 504:15,
508:20, 510:18, 511 :2,
540:10, 543:8, 543:15,
508:13, 511:7, 511:13,
511:3, 511:4, 511:10,
547:15, 547:17, 547:20,
511:19, 511:23, 512:2,
511 :12, 511 :14, 511 :16,
548: 1, 548:5, 548:20,
512:3, 528:8
511 :20, 511 :22, 511 :23,
548:23, 549:4, 549:17,
WIGDOR [28J - 489: 15,
512:3, 512:4, 515:4,
551 :4, 551 :5, 551 :7, 551 :9,
490:3, 490:24, 505:10,
518:23
552:15, 552:18, 552:21,
525:16, 525:19, 525:22,
YORK [2] - 489: 1, 489:7
552:24, 553:2, 553:5,
529:19, 545:2, 545:4,
York [7] - 489:6, 489:17,
553:8, 553: 11, 553: 14,
548:6, 548:8, 548:10,
489:21, 489:23, 515:19
554:3
548:13, 548:15, 548:23,
young 111-504:16
versus [21 - 493:8, 525:5
549:1, 549:7, 549:11,
yourself [1J - 498:12
549:14, 549:18, 554:6,
victim [41 - 491 :6, 491: 12,
554:10, 554:15, 554:18,
yourselves [11 - 542:3
515:15
554:24
views 111 - 542:5
violated [11 - 541 :1
WigdOr[1J-489:16
violation 121 - 535:18, 539:12
WIGDOR: 111 - 555: 1
WILLEMIN [11- 489:15
virtue [11 - 506:24
win [1J-533:4
virus [2] - 512:10, 512:15
windows [1J- 505:20
Visconti 16J - 508:5, 508:24,
509:8, 513:21, 513:25,
wish [2J - 542:17, 542:20
526:21
witness [131- 492:16,
Visconti's [11 - 495:25
494:25, 534:16, 534:17,
VOIC8(2]-497:10, 506:19
534:23, 534:24, 535:4,
535:13, 546:13, 546:15,
voluntartly [11 - 512:21
546:19, 546:20
vote [1] - 547: 11
witness's [8]- 534:13,
w
534:14, 534:15, 534:19,
534:23, 535: 1
wages [21- 539:25, 540:16
witnessed 121 - 491 :21,
wait [2] - 553:22, 553:23
496:18
waiting [31 - 490:3, 491 :2,
wltnasaas [BJ -490:18,
549:10
506:7, 509:4, 518:21,
waitress [11 - 496:2
523:12, 532:25, 533:21,
waive 121 - 502: 17, 528:25
534:25
walvar[1J- 502:13
woman [41 - 504:20, 508: 18,
walk151 - 505:19, 514:10,
515:11, 515:12
514:16, 514:20, 518:9
word 151 - 506:8, 506:9,
walked [2] - 494:6, 521:13
508:9, 543:25, 549:24
walks [2] - 514:10, 519:22
words [41 - 498: 11, 508:7,
warranted [11 - 532:2
513:15, 522:6
wears [1J - 515:4
workforce [11- 523:17
wed [11 - 496:24
worth [11- 505:7
wedding [2] - 516:5
worthless [11 - 504:5
weak 16J - 491 :2, 499:14,
write [5] - 493:12, 493:14,

Baffo V NYIT - Transcript June 11 and 12 2012

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Baffo V NYIT - Transcript June 11 and 12 2012

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Case 2:10-cv-01245-LDW-ETB Document 72 Filed 08/02/12 Page 1 of 79 PagelD #: 1120

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