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January 5, 1988
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Brief Collection, LDF Court Filings. McKennon v. Nashville Banner Publishing Co. Joint Appendix, 1994. 417b98a2-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8c364f5e-739c-46b2-9427-988f136ca0ea/mckennon-v-nashville-banner-publishing-co-joint-appendix. Accessed August 19, 2025.
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No. 93-1543
In T h e
Supreme Court of tfje states?
Oc t o b e r T e r m , 1994
Christine McKennon,
Petitioner,
v.
Nashville Banner P ublishing Co.,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
JOINT APPENDIX
Michael E. Terry
150 Second Avenue North
Suite 315
Nashville, TN 37201
(615) 256-5555
(Counsel of Record)
E laine R. Jones
Director-Counsel
Theodore M. Shaw
Charles Stephen Ralston
E ric Schnapper
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street
Sixteenth Floor
New York, NY 10013
(212) 219-1900
Attorneys for Petitioner
R. E ddie Wayland
(Counsel of Record)
M. Kim Vance
E lizabeth B. Marney
Rachel W. Sokolowski
King & Ballow
1200 Noel Place
200 Fourth Avenue North
Nashville, TN 37219
(615) 259-3456
A ttorneys for Respondent
PETITION FOR WRIT OF CERTIORARI FILED MARCH 30, 1994
CERTIORARI GRANTED MAY 23, 1994
Table of Contents
Item: Page:
1. Docket Entries ............. la
2. Complaint........... .............. 5a
3. Answer ................................. 12a
4. Defendant’s Motion for Summary Judgment . . 17a
5. Defendant’s Statement of Undisputed Facts
in support of Defendant’s Motion for Summary
Judgment And Exhibits ............................... .. . 18a
6. Defendant’s Notice of Filing Original Affidavits 34a
Affidavit of Irby C. Simpkins, Jr. . . . . . 35a
Affidavit of Edward F. Jones................ 39a
Affidavit of Imogene L. Stoneking . . . . 41a
Affidavit of Elise D. McMillan ........... 42a
7. Plaintiffs Statement of Disputed Material Facts 44a
Affidavit of Gene McKennon . . . . . . . 46a
Affidavit of Christine McKennon . . . . . 48a
8. Plaintiffs Notice of Filing Documents ............. 54a
Excerpts from Deposition of Irby C.
Simpkins, Jr............................. 55a
Excerpts from Deposition of Elise David
M cM illan................. 72a
Excerpts from Deposition of Imogene
Stoneking................. 82a
9. Defendant’s Reply to Plaintiffs Response to
Defendant’s Motion for Summary Judgment . . 85a
10. Defendant’s Motion to Suppress Revisions of
Plaintiffs Deposition ......................................... 93a
11. Defendant’s Memorandum of Law in Support of
Motion to Suppress Revisions of Plaintiffs
Deposition (Excerpts) ...................................... 94a
12. Exhibits to Defendant’s Motion to Suppress
Revisions of Plaintiffs Deposition . . . . . . . . 102a
13. Excerpts from Deposition of Christine
McKennon ........................................... 117a
14. Decision of the United States District Court for the
Middle District of Tennessee, June 3, 1992, is set out
in the Appendix to the Petition for a Writ of
Certiorari at pp. 10a-18a
15. Decision of the United States Court of Appeals for
the Sixth Circuit, November 15, 1993, is set out in
the Appendix to the Petition for a Writ of Certiorari
at pp. la-9a
Item: Page:
la
RELEVANT DOCKET ENTRIES
5/6/91 1
6/17/91 2
1/7/92 7
1/7/92 9
3/10/92 20
3/10/92 21
3/10/92 22
3/10/92 23
COMPLAINT (Summons (es) issued)
Filing fee paid in the amount of : $120
Receipt # 32286 (ks) [Entry date
09/11/91]
ANSWER by defendant Nashville
Banner to [1-1] (ks) [Entry date 09/11/91]
MOTION by defendant for summary
judgment (ks) [Entry date 01/08/92]
STATEMENT of facts by defendant in
support of motion for summary judgment
[7-1] (ks) [Entry date 01/08/92]
NOTICE by defendant of filing original
affidavits of Elise D. McMillan, Irby C.
Simpkins, Jr., Edward F. Jones and
Imogene L. Stoneking in support of
defendant’s motion for summary
judgment, (ks)
AFFIDAVIT of Irby C. Simpkins, Jr. in
support of defendant’s motion for
summary judgment [7-1] (ks)
AFFIDAVIT of Edward F. Jones in
support of defendant’s motion for
summary judgment [7-1] (ks)
AFFIDAVIT of Elise D. McMillan in
support of defendant’s motion for
summary judgment [7-1] (ks)
2a
3/10/92 24
3/16/92 25
3/16/92 27
3/16/92 28
3/20/92 29
4/8/92 32
4/8/92 33
4/8/92 34
AFFIDAVIT of Imogene L. Stoneking in
support of defendant’s motion for
summary judgment [7-1] (ks)
RESPONSE by plaintiff to defendant’s
motion for summary judgment [7-1]
with Exhibit A attached, (ks) [Entry
date 03/17/92]
AFFIDAVIT of Gene McKennon in
support of plaintiffs response [25-1] to
defendant’s motion for summary
judgment (ks) [Entry date 03/17/92]
AFFIDAVIT of Christine McKennon in
support of plaintiffs response [25-1] to
defendant’s motion for summary
judgment, (ks) [Entry date 03/17/92]
REPLY by defendant Nashville Banner
to plaintiffs response to motion for
summary judgment [7-1] with Exhibits A-
G attached, (ks) [Entry date 03/23/92]
MOTION by defendant to suppress
revisions of plaintiffs deposition with
Exhibits A-D attached, (ks)
DECLARATION by Teri Campbell in
support of defendant’s motion to
suppress [32-1]. Declaration is Exhibit C
to motion, (ks)
MEMORANDUM by defendant
Nashville Banner in support of motion to
suppress revisions of plaintiffs deposition
[32-l].(ih)
3a
4/10/92
4/14/92
4/17/92
4/21/92
4/27/92
6/3/92
38 NOTICE by defendant of filing original
deposition and copies of excerpts of
depositions, (ks) [Entry date 04/12/92]
42 NOTICE by plaintiff of filing documents
to supplement response to defendant’s
motion for summary judgment with
documents attached. (This pleading was
submitted under seal, no order has been
entered allowing filing under seal.) (ks)
[Entry date 04/20/92]
43 S E C O N D S U P P L E M E N T A L
AUTHORITY by defendant in support
of motion for summary judgment [7-1]
with attachment, (ks) [Entry date
04/20/92]
44 RESPONSE by plaintiff to defendant’s
motion to suppress revisions of plaintiffs
deposition [32-1] with Exhibits 1 and 2
attached, (ks) [Entry date 04/22/92]
45 REPLY by defendant to plaintiffs
response to motion to suppress revisions
of plaintiffs deposition [32-1]. (ks)
[Entry date 04/28/92]
47 ORDER by Judge Thomas A. Higgins:
In accordance with memorandum,
defendant’s motion for summary
judgment [7-1] is granted. Dismissing
case with prejudice. The entry of this
order shall constitute the judgment in
this action, (cc: all counsel) (ks) [Entry
date 06/04/92]
4a
6/26/92
7/29/92
48 NOTICE OF APPEAL by plaintiff
Christine McKennon from Dist. Court
decision, [47-2] (mg) [Entry date
07/01/92]
57 ORDER by Judge Thomas A. Higgins
denying motion for sanctions and fees
[49-1] (cc: all counsel) (mg)
5a
No. 3-91-0346
Filed May 06, 1991
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
CHRISTINE McKENNON,
Plaintiff, J U R Y D EM A N D
JUDGE HIGGINS
vs.
THE NASHVILLE BANNER PUBLISHING CO.,
INC.
Defendant.
COMPLAINT
Pursuant to the Federal Rules of Civil Procedure,
and other applicable law, plaintiff Christine McKennon
hereby sues defendant Nashville Banner Publishing Co., Inc.
and in support thereof would show the Court the following:
1. Plaintiff CHRISTINE MCKENNON
(hereinafter "Ms. McKennon") is an adult citizen of
Tennessee residing at 321 Harbour Drive, Wilson County,
Tennessee 37138. Ms. McKennon’s addressed for the
purpose of this lawsuit shall be her counsel’s address.
2. D efendant NASHVILLE BANNER
PUBLISHING CO., INC., (hereinafter "Banner") is a for
profit Tennessee corporation, engaged in the business of
publishing a newspaper in Middle Tennessee, known as the
Nashville Banner. The stock of the Banner is owned 100%
by Brownlee O. Currey and Irby C. Simpkins, two (2) adult
6a
citizens residing in Middle Tennessee. Brownlee O. Currey
holds, and held during the relevant time, the position of
Chairman of the Board of the Nashville Banner Publishing
Co., Inc. Irby C. Simpkins holds, and held during the
relevant time, the office of President of the Nashville Banner
Publishing Co., Inc. The Banner’s agent for service of
process is Claudia R. Allison, 1100 Broadway, Nashville, TN
37203.
3. The cause of action is age discrimination.
This suit is brought pursuant to the provisions of and in
accordance with the Age Discrimination in Employment Act
(ADEA) 29 U.S.C. 621, et seq. and the Tennessee Human
Rights Act (THRA T.C.A. 4-21-101, et seq.
4. The Banner is an employer for the purposes
of the ADEA and THRA. The Banner employs more than
30 persons. The discriminatory acts herein described
occurred on or about October 31, 1990 and plaintiff filed a
written charge with the Equal Employment Opportunity
Commission (hereinafter "EEOC) within 180 days of the
alleged discriminatory acts. The charge was filed with the
EEOC on or about December 6, 1990, as required by the
ADEA. This suit is filed more than 60 days after the filing
of the charge.
5. This Court has jurisdiction to determine
claims of age discrimination pursuant to both the ADEA
and THRA. This Court has jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367, and other appropriate provisions
and principles of law. The discriminatory acts complained
of occurred in Davidson County, Tennessee. Venue is
proper.
6. Christine McKennon was born on December
31, 1927 and at the time of the discriminatory acts alleged
herein was 62 years old.
7. Ms. McKennon was employed by the Banner
on or about May 14, 1951 and assigned the job title Ad
7a
Taker. On or about June 22, 1952, Ms. McKennon
assumed the job title Secretary, and continued to work as a
secretary at the Banner until she was terminated on October
31, 1990. During her 39 years at the Banner, Me.
McKennon worked as secretary to six (6) different
individuals, and as secretary to the national advertising
manager, and as secretary to the classified advertising staff.
In each of these positions Ms. McKennon was evaluated and
her performance was consistently rated as excellent.
8. From February 26, 1982 until March 6, 1989,
Ms. McKennon held the position of secretary to Jack
Gunter, Executive Vice President. In 1989 Gunter’s job
assignment changed and Ms. McKennon was reassigned as
secretary to Imogene Stoneking, Comptroller. Ms.
McKennon held this position from March 6, 1989 until her
termination on October 31, 1990. In this position Ms.
McKennon’s duties included maintaining personnel files,
working on preparation of the annual budget, maintaining
petty cash vouchers for expense reimbursements, processing
time sheets, making travel arrangements, directing the
personnel department regarding employee changes, and
other duties including miscellaneous tasks assigned directly
by Imogene Stoneking.
9. After Ms. McKennon’s reassignment as
secretary to the Comptroller, she began to experience a
patlem of conduct designed and intended to force her
resignation and/or retirement. The Banner’s agents began
a conscious and willful effort to force her retirement and/or
resignation by reducing Ms. McKennon’s job benefits and
privileges and intentionally and willfully modifying her
working conditions. For example, certain Banner agents,
between April 1989 and October 1990, acting together,
eliminated Ms. McKennon’s parking privileges, modified her
vacation privileges, changed her lunch hour privileges,
altered her compensatory time privileges, threatened to
require weekend work, and denied an appropriate pay raise.
These acts and others were willful and intentional
8a
misconduct undertaken to force Ms. McKennon’s retirement.
Plaintiff alleges that defendant’s harassment and
discrimination were predicated upon plaintiffs age and
defendant’s intention to force her retirement. These were
discriminatory acts taken against Me. McKennon in
contravention of the ADEA and THRA.
10. For more than one (1) year Me. McKennon’s
immediate supervisor, Imogene Stoneking, acting on behalf
of Irby Simpkins, publisher, and Brownlee O. Currey,
chairman of the board, sought Me. McKennon’s retirement.
Ms. Stoneking began to suggest retirement to Ms.
McKennon, and when this strategy failed, began to
implement the discriminatory practices described above to
force resignation and/or retirement.
11. On or about October 31,1990 Ms. McKennon
was summoned to a meeting at the office of Imogene
Stoneking without prior warning. Present were Elise
McMillan, general counsel of the Banner, Tony Kessler,
managing editor, and Ms. Stoneking. Without any notice or
warning, Ms. McKennon was told she was being immediately
terminated. The only explanation offered to Ms. McKennon
was "staff reduction". Ms. McKennon was presented with a
5 page "release agreement", which had been prepared by
counsel for the Banner. Ms. McKennon was told to review
the release agreement and sign it in order to receive any
severance pay. Ms. McKennon was told that if she did not
sign the release agreement, she would receive no severance
pay.
12. Ms. Mckennon was invited to immediately
attend another meeting held by publisher Irby Simpkins.
That meeting lasted about 20 minutes, and then plaintiff was
directed to return to her desk, clean out her work area, and
exit the building. Specifically, Ms. McKennon was
approached by her supervisor, Imogene Stoneking, and told
"don’t shred anything" and "I can’t leave until you leave".
Ms. Stoneking then monitored Ms. McKennon’s departure,
9a
ushered her to the door, demanded her Banner ID card, and
after 39 years of service, Christine McKennon was directed
to leave the Banner’s property.
13. The day after Ms McKennon was terminated
the Banner caused to be published in the Middle Tennessee
area an announcement that Ms. McKennon had sought early
retirement. This publication by the Banner was false, and
the persons who caused the publication knew or should have
known the information contained therein was false. This
false publication was part of the Banner’s strategy to illegally
terminate the employment of Christine McKennon.
14. At the time of Christine McKennon’s
termination, the Banner employed at least six (6) other
secretaries. The two oldest secretaries, including the
plaintiff, were terminated. Of the remaining five secretaries,
none had more than twelve (12) years of service with the
Banner. Two (2) of the remaining secretaries were less than
40 years old. The two (2) youngest secretaries both had less
than six (6) months’ experience with the Banner. None of
the five (5) secretaries, who remained after Christine
McKennon’s termination, possessed any qualifications
superior to the qualifications of Ms. McKennon. None of
the secretaries, who remained after Christine McKennon’s
termination, performed duties which Me. McKennon was
unable to perform. At the time Ms. McKennon was
terminated, she was older than, more qualified than, and
more experienced than any of the five (5) secretaries who
remained.
15. The termination of Christine McKennon’s
employment was an illegal discriminatory act and/or practice.
The pattern of conduct, referenced above, which preceded
Ms. McKennon’s termination were illegal and discriminatory
acts and/or practices. The termination of Ms. McKennon
was an illegal and discriminatory act. These acts and
practices violate both the ADEA and the THRA, in that
these discriminatory and illegal acts were based upon the age
10a
of plaintiff. The Banner’s decision to terminate Ms.
McKennon and the Banner’s strategy to implement this
decision were based upon her age.
16. At the time of her termination, Ms.
McKennon’s annual salary was approximately $26,437. Ms.
McKennon has suffered the loss of this income and certain
employment benefits, including medical insurance, as a
direct and proximate result of defendant’s illegal acts.
17. Defendant’s illegal and discriminatory acts
were planned, calculated, counseled, intentional, and wilful.
Defendant has willfully violated the ADEA and THRA, and
Ms. McKennon’s federal and state statutory rights. Ms.
McKennon is entitled to liquidated damages, or an award
doubling the compensation and/or actual damages.
18 Ms. McKennon was terminated after 39 years
of service on her 36th wedding anniversary with no notice.
Ms. McKennon was summarily and abrasively treated by
Banner’s agents, insulted, and ushered rudely from the
premises, after being directed to gather her belongings and
leave. The Banner then falsely and knowingly caused her
termination to be published as an "early retirement". Since
her termination, Ms. McKennon has continued to suffer
embarrassment and humiliation as a direct result of
defendant’s illegal and discriminatory acts. Ms. McKennon
was embarrassed and humiliated by defendant’s acts, and is
entitled to damages for these injuries.
WHEREFORE, PREMISES CONSIDERED, PLAINTIFF
PRAYS:
1. That this complaint be filed and served upon
defendant and that answer be required within the time
allowed by law;
2. For trial by jury;
3. For judgment against defendant awarding
compensatory damages, actual damages, and appropriate
11a
equitable relief including back pay and prospective (front)
pay;
4. For a judgment against defendant awarding
liquidated damages for defendant’s willful violation;
5. For a judgment against defendant awarding
damages for the humiliation and embarrassment caused by
the discriminatory practices;
6. For an order directing defendant to pay all
costs of this litigation, and plaintiffs reasonable attorney
fees;
7. For interest on all amounts due calculated
from the date this action is filed;
8. For any other appropriate relief.
RESPECTFULLY SUBMITTED
12a
[Caption Omitted]
ANSWER TO COMPLAINT AND AFFIRMATIVE
DEFENSES OF THE
NASHVILLE BANNER PUBLISHING CO.
Defendant, The Nashville Banner Publishing Co.
(hereinafter referred to as the "Nashville Banner"), answers
Plaintiffs Complaint as follows:
Answer
1. The Nashville Banner denies knowledge or
information sufficient to form a belief as to the truth of the
averments contained in Paragraph 1 of the Complaint.
2. The Nashville Banner admits the averments
contained in Paragraph 2 of the Complaint, except avers that
the proper name of Defendant is Nashville Banner
Publishing Co., and that the proper names of Mr. Currey
and Mr. Simpkins are Brownlee O. Currey, Jr., and Irby C.
Simpkins, Jr.
3. The Nashville Banner denies each and every
averment contained in Paragraph 3 of the Complaint, except
admits Plaintiff purports to bring an action under the Age
Discrimination in Employment Act and the Tennessee
Human Rights Act.
4. The Nashville Banner denies knowledge or
information sufficient to form a belief as to the truth of the
averments contained in Paragraph 4 of the Complaint,
except admits that it employs more than 30 persons and that
Plaintiff filed a discrimination charge with the Equal
Employment Opportunity Commission dated December 6,
1990.
5. The Nashville Banner denies knowledge or
information sufficient to form a belief as to the truth of the
13a
averments contained in Paragraph 5 of the Complaint,
except admits that Plaintiff purports to invoke the
jurisdiction and venue of this Court.
6. The Nashville Banner denies knowledge or
information sufficient to form a belief as to the truth of the
averments contained in Paragraph 6 of the Complaint.
7. The Nashville Banner denies each and every
averment contained in Paragraph 7 of the Complaint, except
admits that Plaintiff was terminated on October 31, 1990.
8. The Nashville Banner denies each and every
averment contained in Paragraph 8 of the Complaint, except
admits that Plaintiff was secretary to Jack Gunter from 1982
to 1989, that Plaintiff was secretary to Imogene Stoneking
from 1989 to 1990, and that Plaintiff performed customary'
secretarial duties while employed at the Nashville Banner.
9. The Nashville Banner denies each and every'
averment contained in Paragraph 9 of the Complaint.
10. The Nashville Banner denies each and every
averment contained in Paragraph 10 of the Complaint.
11. The Nashville Banner denies each and every
averment contained in Paragraph 11 of the Complaint,
except admits that Ms. Stoneking, Mr. Kessler and Ms.
McMillan met with Plaintiff on or about October 31, 1990,
in the office of Ms. Stoneking to explain to Plaintiff that she
was being terminated as part of a reduction in staff and to
give her a severance check. As was the case with all
individuals terminated as part of this reduction in staff,
Plaintiff was offered additional severance as part of a release
agreement that had been prepared by counsel for the
Nashville Banner.
12. The Nashville Banner denies each and every
averment contained in paragraph 12 of the Complaint,
except admits that Plaintiff attended a staff meeting at which
publisher Irby Simpkins spoke. The Nashville Banner further
14a
admits that Plaintiff was asked to return her Banner ID
card, that Plaintiff was asked by Ms. Stoneking to stop
shredding documents when Ms Stoneking observed Plaintiff
shredding documents, and that Plaintiff was advised by Ms.
Stoneking that Ms. Stoneking could not leave until Plaintiff
left.
13. The Nashville Banner denies each and eery
averment contained in Paragraph 13 of the Complaint.
14. The Nashville Banner denies each and every
averment contained in Paragraph 14 of the Complaint,
except admits that as part of a reduction in staff two
secretaries who were older than the other secretaries were
terminated and that two of the remaining secretaries were
less than 40 years old and had been employed at the
Nashville Banner for less than six months.
15. The Nashville Banner denies each and every
averment contained in Paragraph 15 of the Complaint.
16. The Nashville Banner denies each and every
averment contained in Paragraph 16 of the Complaint,
except admits that Plaintiffs annual salary was approximately
$26,437 at the time of her termination.
17. The Nashville Banner denies each and every
averment contained in Paragraph 17 of the Complaint.
18. The Nashville Banner denies each and every
averment contained in paragraph 18 of the Complaint.
19. All averments to which no specific response
has been made herein are denied.
20. The Nashville Banner denies that Plaintiff is
entitled to any relief prayed for in the Complaint.
Affirmative Defenses
First Affirmative Defense
21. Plaintiffs Complaint fails to state a claim
15a
upon which relief may be granted.
Second Affirmative Defense
22. Plaintiff was discharged for legitimate, non-
discriminatory business reasons.
Third Affirmative Defense
23. Plaintiff was an employee-at-will and could be
terminated at any time without cause by the Nashville
Banner.
Fourth Affirmative Defense
24. Any damage with respect to which any claim
is asserted against Defendant results from acts, omissions, or
events other than any alleged acts or omissions of the
Nashville Banner contained in the Complaint.
Fifth Affirmative Defense
25. Plaintiff has failed to take reasonable steps to
minimize and mitigate any alleged damages which she could
have avoided.
Sixth Affirmative Defense
26. Plaintiff is estopped by her own acts, conduct,
or omissions from asserting some or all of the claims
contained in the Complaint.
Seventh Affirmative Defense
27. Plaintiff has failed to exhaust available and
requisite administrative remedies.
Eighth Affirmative Defense
28. Plaintiff was terminated on the basis of
reasonable factors other than age.
Ninth Affirmative Defense
29. The Complaint fails to state a claim or cause
16a
of action against the Nashville Banner for an award of
liquidated or statutory damages.
WHEREFORE, the Nashville Banner demands
judgment dismissing the Complaint against it together with
an award of its costs and disbursements, including an award
of attorneys’ fees and for such other and further relief as
this Court deems appropriate.
Respectfully submitted,
17a
DEFENDANTS MOTION FOR SUMMARY JUDGMENT
[Caption Omitted]
Pursuant to Rule 56 of the Federal Rules of Civil
Proeedure, Defendant, The Nashville Banner Publishing
C o , by and through its attorneys, moves this Court for the
entry of an order granting Defendant summary judgment.
As grounds for this Motion, Defendant states that there are
no genuine issues of material fact necessary to render a
decision on Plaintiffs age discrimination claims in this cause
and that it is entitled to judgment as a matter of law.
In support of this Motion for Summary Judgment,
Defendant has simultaneously filed herewith a Statement of
Undisputed Facts, a Memorandum of Law more fully
articulating the reasons upon which this Motion should be
granted, as well as other supporting evidentiary materials.
WHEREFORE, Defendant respectfully requests that
the Court grant its Motion for Summary Judgment and
dismiss this case.
Respectfully submitted,
18a
STATEMENT OF UNDISPUTED MATERIAL
FACTS IN SUPPORT OF DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
[Caption Omitted]
Pursuant to Local Rule 8(b) 7(b) Defendant, The
Nashville Banner Publishing Co. ("The Company"), hereby
submits the following statement of undisputed material facts
that entitle it to judgment as a matter of law.1
2. The Company is engaged in the business of
publishing a daily newspaper knows as the Nashville Banner.
(Complaint, 11 2; Answer, 11 2).
3. Brownlee O. Currey, Jr. is the Chairman of
the Board of the Company. Irby C.Simpkins, Jr. is President
of the Company and Publisher of the Nashville Banner.
(Complaint, 2; Appendix J. U 1). Imogene L. Stoneking is
the Company’s Comptroller. (Appendix L, 11 1; Complaint,
H 8). Elise D. McMillan is the Company’s General Counsel
and Executive Vice President for Administration. (Appendix
M, 11 1). Edward F. Jones is the Editor of the Nashville
Banner. (Appendix K, H 1).
4. Plaintiff was employed as secretary to Ms.
Stoneking from March, 1989 until October 21, 1990.
(Complaint, H 8; Answer, 11 8; Appendix 1, H 2). Plaintiff
was an employee-at-will. (Appendix A). She was separated
from employment on October 31, 1990. (Complaint, U 11,
Answer, U 1). On May 6, 1991, Plaintiff instituted the 1
1 For purposes of this Statement of Undisputed
Material Facts, the Company will accept as true a number of
Plaintiffs factual assertions because even if they were true,
the Company would still be entitled to summary judgment,
the Company does not waive the right to present additional
or contradictory evidence at trial.
19a
present action. (Complaint).
5. Plaintiffs duties as secretary to the
Comptroller included maintaining personnel files, assisting
in the preparation of the Company’s annual budget,
processing time sheets, and various other tasks assigned to
her by Ms. Stoneking. (Complaint, 11 8).
6. In her position as the Comptroller’s secretary,
Plaintiff had access to proprietary and confidential
documents and information, such as payroll data, financial
information, personnel files and other confidential records.
(Appendix 1, U 2). Plaintiff understood that this information
was confidential and proprietary business information.
(Appendix B, p. 136). She was aware that this information
was to be kept confidential and was not to be disclosed
outside the workplace or to individuals within the Company
who were not authorized to have the information.
(Appendix B, p. 136). Plaintiff further understood that a
failure to keep these documents and records confidential
consistent with her position and obligations could have
resulted in her termination. (Appendix B, p. 137). Plaintiff
knew that the Company was relying upon her not to disclose
the confidential information to which she had access.
(Appendix B, pp. 137, 142).
7. Through interrogatories and document
requests, the Company discovered that Plaintiff apparently
had in her possession copies of confidential and proprietary
documents belonging to the Company. During Plaintiffs
deposition on December 18, 991, the Company for the first
time learned that while employed Plaintiff had copied and
removed from its premisses those confidential documents.
(Appendix J, 11 4). Plaintiff did not tell anyone at the
Company that she had taken those confidential materials
until her deposition. (Appendix C, pp. 196-99).
8. Plaintiff revealed in her deposition that in the
fall of 1989, she photocopied and removed from the
20a
Company’s premises the Nashville Banner Fiscal Payroll
Ledger. (Appendix C, 196-200; Appendix D). Plaintiff
obtained this document in her role as the Comptroller’s
confidential secretary. (Appendix C, p. 197). She
understood that it was a highly confidential document.
(Appendix C, p 197). Plaintiff did not tell the Comptroller
or anyone else that she had copied this document or that she
was removing it from the Company’s premises. (Appendix
C, p. 197). Plaintiff copied the document and removed it
from the premisses knowing that she was not authorized to
do so. (Appendix C, p. 199-200). She did this after being
specifically instructed by the Comptroller to shred the
document. (Appendix C, pp. 198-99). A redacted copy of
this document is attached as Appendix D.
9. Plaintiff also copied and removed from the
Company’s premises the Nashville Banner Publishing Co.’s
Profit and Loss Statement in the fall of 1989. (Appendix E,
pp. 200-02; Appendix F). This document was also highly
confidential and obtained by Plaintiff in her role as the
Comptroller’s confidential secretary. (Appendix E, p. 201).
Plaintiff was given this document by the Comptroller to
shred but made a copy of it instead. (Appendix E, p. 202).
Once again, Plaintiff did not tell anyone at the Company
that she had copied this document or that she had removed
it from the premises. (Appendix E, p. 202). Plaintiff
understood that she was not authorized to copy the Profit
and Loss Statement or to remove it from the Company’s
premises. (Appendix E, p. 202). A redacted copy of this
document is attached as Appendix F.
10. In the summer of 1989, Plaintiff copied and
removed from the Company’s premises a series of
documents and an agreement relating to a Company
manager. (Appendix G, pp. 203-05; Collective Appendix H).
Plaintiff had removed these documents from the manager’s
personnel file. (Appendix G, pp. 203-05). She did not tell
anyone at the Company that she had copied the documents.
(Appendix G, p. 204). After copying the documents, she
21a
removed them from the Company’s premises, and revealed
their contents to other persons. (Appendix G, pp. 204-05).
Once again, Plaintiff understood she was not authorized to
copy these documents or to remove them from the
Company’s premises. (Appendix G, p. 205). She further
understood that these were also highly confidential
documents. (Appendix G, pp. 214-215). Redacted copies of
these documents are attached as collective Appendix H.
11. Plaintiff was informed by letter dated
December 20, 1991, that her actions constituted deliberate
misconduct involving breach of trust and confidentiality
obligations essential to her position a sa confidential
secretary. (Appendix I).
12. Had the Company been aware of Plaintiffs
breach of confidentiality and misconduct at the time it
occurred or at any time thereafter, it would have terminated
her immediately. (Appendix I, J, K, L).
Respectfully submitted,
22a
EXHIBITS TO DEFENDANT’S UNDISPUTED
FACTS IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT
[Note: information redacted pursuant to district court’s
privacy order is indicated by brackets "{ }"]
ACKNOWLEDGMENT OF RECEIPT OF
NASHVILLE BANNER EMPLOYEE HANDBOOK
I acknowledge receipt of the Nashville Banner
Employee Handbook and I have read and understand its
contents. I understand that the policies and guidelines set
forth in this handbook should not be construed as express or
implied contractual guarantees regarding my employment
relationship with the Nashville Banner.
I understand and agree that my employment
relationship will continue to be an employment at the
continuing will of both parties for no definite duration and
that either party remains free to terminate the relationship
at any time.
s/ Chris McKennon
Signature of Employee
Feb. 28. 1990
Date
1/1/90
23a
NASHVILLE BANNER
FISCAL PERIOD PAYROLL LEDGER
AS-OF DATE : 09/30/89
PERIOD ENDING : 09/30/89
EMP G/L CUR
NO. EMPLOYEE NAME FOLIO ACCT FISCAL
101 CURREY,BROWNLEE O. JR. {All pay
CHECK # 1660 CD1 information redacted)
CHECK # 1660 CD1
CHECK # 1675 CD1
EMPLOYEE SUMMARY
WAGES SALARIES
ACCRUED FICA
ACCRUED FED W/H
NET PAY
102 SIMPKINS, IRBY C. JR.
CHECK # 1661 CD1
CHECK # 1661 CD1
CHECK # 1676 CD1
CHECK # 1676 CD1
EMPLOYEE SUMMARY
WAGES SALARIES
ACCRUED FICA
ACCRUED FED W/H
NET PAY
104 ELLSWORTH, BETTY MCPEAK
CHECK # 1662 CD1
CHECK # 1662 CD1
CHECK # 1662 CD1
CHECK # 1662 CD1
CHECK # 1662 CD1
24a
CHECK # 1662 CD1
CHECK # 1677 CD1
CHECK # 1677 CD1
CHECK # 1677 CD1
CHECK # 1677 CD1
CHECK # 1677 CD1
CHECK # 1677 CD1
EMPLOYEE SUMMARY
WAGES SALARIES
ACCRUED FICA
ACCRUED FED W/H
ACCRUED CREDIT UNION
ACCRUED PROFIT SHARE
ACCRUED UNITED WAY
ACC PARKING - TENN
NET PAY
105 ALLISON, CLAUDIA
CHECK # 1663 CD1
CHECK # 1663 CD1
CHECK # 1663 CD1
CHECK # 1663 CD1
CHECK # 1663 CD1
CHECK # 1663 CD1
CHECK # 1678 CD1
CHECK # 1678 CD1
CHECK # 1678 CD1
CHECK # 1678 CD1
CHECK # 1678 CD1
CHECK # 1678 CD1
EMPLOYEE SUMMARY
WAGES SALARIES
ACCRUED FICA
ACCRUED FED W/H
ACCRUED CREDIT UNION
ACCRUED PROFIT SHARE
25a
ACCRUED UNITED WAY
ACC PARKING - TENN
NET PAY
106 STONEKING, IMOGENE
CHECK # 1664 CD1
CHECK # 1664 CD1
CHECK # 1664 CD1
CHECK # 1664 CD1
CHECK # 1664 CD1
CHECK # 1664 CD1
CHECK # 1679 CD1
CHECK # 1679 CD1
CHECK # 1679 CD1
CHECK # 1679 CD1
CHECK # 1679 CD1
CHECK # 1679 CD1
EMPLOYEE SUMMARY
WAGES SALARIES
ACCRUED FICA
ACCRUED FED W/H
ACCRUED CREDIT UNION
ACCRUED PROFIT SHARE
ACC PARKING - TENN
NET PAY
107 JONES, EDWARD
CHECK # 1665 CD1
CHECK # 1665 CD1
CHECK # 1665 CD1
CHECK # 1665 CD1
CHECK # 1680 CD1
CHECK # 1680 CD1
CHECK # 1680 CD1
26a
NASHVILLE BANNER PUBLISHING CO., INC.
PROFIT & LOSS STATEMENT
S T A T E M E N T OF I NCO M E / ( L O S S ) AND
ACCUMULATED DEFICIT
TEN MONTHS ENDED OCTOBER OCTOBER
1989 1988
REVENUE
$ OF TENNESSEAN INCOME {AH income information
redacted}
OTHER INCOME
COSTS AND EXPENSES:
EDITORIAL
GENERAL AND ADMINISTRATIVE
DEPRECIATION AND AMORTIZATION
INTEREST EXPENSE
TOTAL EXPENSES
NET PROFIT/LOSS BEFORE INCOME TAX
INCOME TAX
NET PROFIT/LOSS AFTER INCOME TAX
DIVIDENDS
OCTOBER 30, 1989
27a
Simpkins
July 1
Attached is a copy of the contract given to {name
redacted}.
Elise
28a
NASHVILLE BANNER
1100 Broadway
Nashville, Tenn. 37203
Elise McMillan Phone (615) 259-8202
General Counsel and
Executive Vice President, Administration
DATE: February 23, 1989
TO: { }
FROM: Elise D. McMillan
{ } following is a brief overview of benefits to which { }
is entitled. As I mentioned earlier, estimates are included
and { }.
Life insurance - { } policies in the amount of { } and { }.
These are available only to employees.
Medical insurance - Coverage under the { } plan for { }
and { }. As an employee, { } would { } the same { }
as other full-time employees. We currently continue to { }.
Pension plan - As an employee, { } would { } plan. The
{ } . With retirement { } , { } would { } $ { } annually
from our { } . This is an estimate that would depend on
the type of the payment from the plan that { } and { }
choose.
Thrift plan - As of January 1, 1989, { } had about $ { } in
the { } plan. Under this plan we { } plan. { } account
in the plan would { } . Money from the { } can be { }
under only three circumstances - { } .
These are the highlights. I’ll be glad to go into more detail
with you on these or explain any other benefits you may
29a
have questions about.
EDM:hf
cc: Irby C. Simpkins
30a
NASHVILLE BANNER
1100 Broadway
Nashville, Tenn. 37203
TO: IRBY C. SIMPKINS, JR.
FROM: IMOGENE STONEKING
DATE: FEBRUARY 3, 1989
RE: { }
{ }
1. Although { } will { } his salary
Estimated cost to company - salary plus any benefits
determined - { } .
2. Retain { } . Cost to company - { } - estimated
{ }•
3. To purchase { } . Estimated { } -
As a { } cost - under { } - { } annually.
As a { } cost is { } annually.
Retirees do not have { } coverage.
At { } would no longer { } and this would amount to an
approximate { } . This is an estimate that will depend on
the type of { } .
As of January 1, 1989 { } would { } from the { } .
cc Eddie Jones
Elise McMillan
31a
2/8
{ }
{ }
{ }
$ { } annually
{ }
{ }
full { } package
can request { } prior approval
include { }
{ I
{ }
perform { } duties
available assyn. { }
inkeeping assyn. { }
for company
prior approval { }
at time terms & conditions
commitment continues beyond { } { } { } of Banner
{ } or assignee right to { } & purchase { } & continue
obligations { }
office { } { } { }
disability
right - { }
death?----- terminates at { }
{ >
32a
{ } AGREEMENT
This agreement is entered into this 1st day of { } ,
{ } by and between { } and Nashville Banner Publishing
Company (hereinafter "Banner") to provide for the
conditions of { } with the Banner.
13. The term of this agreement shall be from the
date of execution, as shown above, to { } .
14. Mindful of { } { } { } the Banner { } { }
{ }•
15. The Banner agrees { } { } { } , subject to
all required withholding, and to continue { } { } { } .
16. The Banner agrees to { } { } { } agrees that
the Banner { } { } { } { } { } .
17. { } agrees that { } { } { } { } { } .
18. { } is full familiar with the nature of the
Banner’s business and the industry and recognizes { } s {
} { } { } . { } therefore agrees that { } { } { } {
} { } { } . Should this agreement be terminated for any
reason, { } agrees that { } { } { } { } { } . If the
scope of these restrictions is { } { } , then these
restrictions shall be enforced to the maximum extent
permitted by law, and the parties hereby agree { } { } {
} { } { } { } •
19. Should the Banner determine that { } { } {
} { } { } { } { } { } { } { } • This { } { } {
} { } { } . A decision by the Banner that it { } { } {
} { } { } •
20. The Banner may { } { } { } { } { } {
} { } { } { } { } { } { } { } { } { } { } { }
33a
{ } { } { } { } { } { } { } { } { } •
21. This agreement shall { } { } { } { } { } .
22. The waiver by the Banner of a right provided by
this agreement shall not operate as or be construed as a
waiver of that right on subsequent occasions.
23. Should any dispute over the terms of this
agreement arise, the dispute shall be resolved by { } { }
{ } { } { } { } { } { } •
24. This agreement contains the { } { } { } ,
supersedes any and all other agreements, either oral or
written, between the parties, and may be modified only {
} { } { } { } •
NASHVILLE BANNER PUBLISHING CO.
Bv: { ) ________
WITNESS { )________
STATE OF TENNESSEE )
COUNTY OF DAVIDSON )
Before me, the undersigned Notary Public at Large
in and for the State of Tennessee, personally appeared { }
, with whom I am personally acquainted acknowledges that
this { } Agreement is executed for the purpose therein
contained
WITNESS my hand and seal at Nashville, Tennessee,
this the 1st day of March, 1989.
sL___________________
Notary Public
My Commission expires June 4, 1990
34a
NOTICE OF FILING ORIGINAL AFFIDAVITS
[Caption Omitted]
Please take notice that on this 10th day of March,
1992, the original affidavits of Elise D. McMillan, Irby C.
Simpkins, Jr., Edward F. Jones, and Imogene L. Stoneking,
have been filed in support of Defendant’s pending Motion
for Summary Judgment filed on January 7, 1992. Copies of
these affidavits were filed as Appendices I, J. K, and L on
January 7, 1992, and Defendant hereby files the original
affidavits as well.
Respectfully submitted,
KING & BALLOW
35a
STATE OF TENNESSEE )
COUNTY OF DAVIDSON )
AFFIDAVIT OF IRBY C. SIMPKINS, JR.
1. I, Irby C. Simpkins, Jr., am Publisher of the
Nashville Banner and President of the Nashville Banner
Publishing Co., ("the Company").
2. From approximately March, 1989, through
October, 1990, Christine McKennon held the position of
secretary to Imogene Stoneking, Comptroller. In this
position, Ms. McKennon had access to proprietary and
confidential documents and information. These documents
included payroll data, financial information, personnel and
other confidential files.
3 I have been advised that during her deposition
on December 18, 1991, Ms. McKennon admitted to having
copied and removed from the Company’s premises
proprietary and confidential documents and information that
she had access to by virtue of her employment as Ms.
Stoneking’s secretary. Ms. McKennon was not authorized to
do this. I have been advised that she, in fact, admitted that
she was not authorized to do so. Ms. McKennon did not
advise me about or seek my consent to her actions. I am
told that she admitted that she did not advise any other
officer or manager of the Company about or seek their
consent to her actions.
4. Ms. McKennon’s actions constituted obvious
and deliberate misconduct involving breach of trus>. and
confidentiality obligations. When she admitted these actions
during her deposition, it was the first time I or the Company
knew of this misconduct.
5. Had I learned of Ms. McKennon’s misconduct
[Caption Omitted]
36a
at any time prior to her separation from the employment on
October 31, 1990,1 would have terminated her immediately.
Once I learned of her admissions, I wrote her a letter dated
December 20, 1991, setting forth this fact. A copy of this
letter is attached hereto as Appendix A.
FURTHER AFFIANT SAITH NOT.
S/S
Irby C. Simpkins, Jr.
37a
Nashville Banner
1100 Broadway
Nashville, Tenn, 37203
Irby C. Simpkins, Jr. Phone (615) 259-8201
President and Publisher
December 20, 1991
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Ms. Christine McKennon
321 Harbour Drive
Old Hickory, TN 37138
Dear Ms. McKennon:
During your deposition on December 18,1991, you admitted
under oath that you engaged in conduct that constituted
breaches of your duties and responsibilities while you were
employed by the Nashville Banner Publishing Company.
This is the first time that the Company knew of your
misconduct.
Specifically, you testified that on at least two separate
occasions, you surreptitiously photocopied proprietary and
confidential documents and information to which you had
access by virtue of your employment as a confidential
secretary. You then removed these copies from the
premises and converted them to your own use. In one
instance, despite having been instructed to shred documents,
you copied and purloined them. Other confidential
documents you copied were removed from the personnel or
related files pertaining to an executive of the Company.
You of your own admission took these actions without the
knowledge or consent of any officer or manager of the
38a
Company. Your further admitted that you took these
actions knowing that you were not authorized to do so.
Had the Company discovered your actions when you took
them, you would have been terminated immediately.
Similarly, if your actions had been discovered at any time
prior to your separation from employment on October 31,
1990, you would have been terminated immediately. If you
were presently employed with the Company, you would be
terminated immediately.
Such obvious and deliberate misconduct involving breach of
trust and confidentiality obligations simply could not or will
not be condoned or tolerated. We trusted you as the
custodian of our Company’s most sensitive financial and
personnel information and your willful breach of that trust
could or can only result in immediate termination.
Sincerely,
ICSjntt
____________S/S
Irby C. Simpkins, Jr.
39a
STATE OF TENNESSEE
COUNTY OF DAVIDSON
AFFIDAVIT OF EDWARD F. JONES
1. I, Edward F. Jones, am Editor of the Nashville
Banner, published by the Nashville Banner Publishing Co.
("the Company").
2. From approximately Mach, 1989, through
October, 1990, Christine McKennon held the position of
secretary to Imogene Stoneking, Comptroller. In this
position, Me. McKennon had access to proprietary and
confidential documents and information. These documents
included payroll data, financial information, personnel and
other confidential files.
3. I have been advised that during her
deposition on December 18, 1991, Ms. McKennon admitted
to having copied and removed from the Company’s premises
proprietary and confidential documents and information that
she had access to by virtue of her employment as Ms.
Stoneking’s secretary. Ms. McKennon was not authorized to
do this. I have been advised that she, in fact, admitted that
she was not authorized to do so. Ms. McKennon did not
advise me about or seek my consent to her actions. I am
told that she admitted that she did not advise any other
officer or manager of the Company about or seek their
consent to her actions.
4. Ms. McKennon’s actions constituted obvious
and deliberate misconduct involving breach of trust and
confidentiality obligations. When she admitted these actions
during her deposition, it was the first time I knew of this
misconduct.
5. Had I learned of Ms. McKennon’s misconduct
at any time prior to her separation from employment on
[Caption Omitted]
40a
October 31,1990,1 would have terminated her immediately.
FURTHER AFFIANT SAITH NOT.
__________ S/S_______
Edward F. Jones,
41a
[Caption Omitted]
STATE OF TENNESSEE
COUNTY OF DAVIDSON
AFFIDAVIT OF IMOGENE L. STONEKING
1. I, Imogene L. Stoneking, am Comptroller for
the Nashville Banner Publishing Co. ("the Company").
2. From approximately March, 1989, through
October, 1990, Christine McKennon held the position as my
secretary. In this position, Ms. McKennon had access to
proprietary and confidential documents and information.
These documents included payroll data, financial
information, personnel and other confidential files.
3. During her deposition on December 18, 1991,
Ms McKennon admitted to having copied and removed from
the Company’s premises proprietary and confidential
documents and information that she had access to by virtue
of her employment as my secretary, Ms. McKennon was not
authorized to do this and, in fact, admitted that she was not
authorized to do so. Ms. McKennon did not advise me
about or seek my consent to her actions, and she admitted
that she did not advise any other officer or manager of the
Company about or seek their consent to her actions.
4. Ms. McKennon’s conduct constituted obvious
and deliberate misconduct involving breach of rust and
confidentiality obligations. When she admitted these actions
during her deposition, it was the first time I knew of this
misconduct.
5. Had I known of Ms. McKennon’s misconduct
at any time prior to her separation from employment on
October 31, 1990, I would have terminated her immediately
or, alternatively, would have recommended that she be
terminated immediately.
FURTHER AFFIANT SAITH NOT.
S/S________ _
Imogene L. Stoneking
42a
STATE OF TENNESSEE
COUNTY OF DAVIDSON
AFFIDAVIT OF ELISE D. MCMILLAN
1. I, Elise D. McMillan, am General Counsel
and Executive Vice President for Administration of the
Nashville Banner Publishing Co. ("the Company").
2. From approximately March, 1989, through
October, 1990, Christine McKennon held the position as
secretary to Imogene Stoneking, Comptroller. In this
position, Ms. McKennon had access to proprietary and
confidential documents and information. These documents
included payroll data, financial information, personnel and
other confidential files.
3. During her deposition on December 18, 1991,
Ms McKennon admitted to having copied and removed from
the Company’s premises proprietary and confidential
documents and information that she had access to by virtue
of her employment as Ms. Stoneking’s secretary. Ms.
McKennon was not authorized to do this and, in fact,
admitted that she was not authorized to do so. Ms.
McKennon did not advise me about or seek my consent to
her actions, and she admitted that she did not advise any
other officer or manager of the Company about or seek their
consent to her actions.
4. Ms. McKennon’s conduct constituted obvious
and deliberate misconduct involving breach of trust and
confidentiality obligations. When she admitted these actions
during her deposition, it was the first time I knew of this
misconduct.
5. Had I known of Ms. McKennon’s misconduct
at any time prior to her separation from employment on
October 31, 1990, I would have terminated her immediately
[Caption Omitted]
43a
or, alternatively, would have recommended that she be
terminated immediately.
FURTHER AFFIANT SAITH NOT.
S/S _________ _
Elise D. McMillan
44a
PLAINTIFF’S STATEMENT OF DISPUTED
MATERIAL FACTS
Pursuant to Local Rule 8, plaintiff submits this
Statement of Disputed Material Facts. Accordingly, plaintiff
submits that the following facts are material to defendant’s
Motion for Summary Judgment and that genuine issues exist
regarding these facts:
1. Plaintiff did not copy the payroll ledger and
profit and loss statement in the fall of 1989. Plaintiff
previously testified that the documents were copied, then.
However, her final corrected deposition and attached
affidavit indicate that the documents were copied sometime
between January, 1990 and March 1990. (See affidavit, C.
McKennon, paragraph 12).
2. Plaintiff did not remove the payroll ledger and
profit and loss statement from The Nashville Banner
premises in the fall of 1989. These documents were kept in
a file cabinet after they were copied. The documents were
taken to plaintiffs home during late April, 1990 or early
May, 1990, after Imogene Stoneking told plaintiff that Mr
Simpkins wanted a memo on plaintiffs retirement plans, and
Ms. Stoneking made written inquiry to the company’s
pension administrator regarding plaintiffs retirement status.
3. The documents copied and later removed
were approximately four (4) pages of a stack of documents
which were given to plaintiff to shred. Plaintiff submits that
these four (4) pages were parts of the payroll ledger and
parts of the profit and loss statement. No more than four
(4) pages were copied.
4. Defendant submits that "In the summer of
1989, plaintiff copied and removed . . . a series of documents
and an agreement relating to a company man iger."
(Defendant’s Undisputed Facts, paragraph 9). In fact,
[Caption Omitted]
45a
plaintiff copied only the contract which was in her file
cabinet, maintained by her, and to which she had full access.
Also, much of the details had been related to her by Ms.
Stoneking.
5. Plaintiff did not reveal the contents of the
contract, or the other documents, to "other persons," plaintiff
only showed the contract and other documents to her
husband. After litigation was filed, plaintiff revealed the
documents to her attorney. (Affidavit, C. McKennon,
paragraph 13).
6. Plaintiffs conduct does not constitute
"deliberate misconduct involving beach of trust and
confidentiality" unless revelation to her husband is breach of
trust and confidentiality. The information contained in all
the documents was learned by plaintiff in the course of her
employment, and her requisition of this knowledge was not
wrongful. Much of the information was told to plaintiff by
Ms. Stoneking and the remainder was revealed to Ms.
McKennon in the course of her job.
RESPECTFULLY SUBMITTED,
46a
STATE OF TENNESSEE )
COUNTY OF DAVIDSON )
AFFIDAVIT OF GENE McKENNON
1. I am the husband of the plaintiff, Christine
McKennon, and we have been married for more than 37
years.
2. My wife has been employed by The Nashville
Banner since 1951 and never expressed concern to me
regarding her job security until March, 1989, when she
informed me that her supervisor, Imogene Stoneking, had
stated that Christine’s employment had somehow been
jeopardized during the reassignment and/or demotion of
Jack Gunter. This information was shocking to Christine
and I because she had always enjoyed a successful and
secure job at The Nashville Banner. We had many
conversations regarding the significance of Mr. Gunter’s job
change to Christine’s employment with the Nashville Banner.
We were perplexed and somewhat confused, since Christine
had always enjoyed positive performance evaluations, and
knew of no reason that would suggest her termination.
During this time, Christine showed me a document which
appeared to be Mr. Gunter’ employment contract with The
Nashville Banner. We read it in an effort to ascertain
information that could explain Ms. Stoneking’s statement
regarding Christine’s job security. I never distributed or
shared the information in the document with anyone, except
Christine.
3. During the next year, Christine’s anxiety
regarding her job continued to increase, and our concern
seemed to be confirmed almost weekly. Christine related to
me many statements made by Ms. Stoneking about such
things as the feasibility of retirement, the financial plight of
The Nashville Banner, and the number of secretaries.
[Caption Omitted]
47a
Increasingly, Christine would discuss problems associated
with parking privileges, lunch hour privileges, vacation
privileges, and other work related difficulties. It seemed that
what had been an excellent employment situation was
rapidly deteriorating. Christine became more and more
anxious as the months elapsed.
4. Near the end of 1989, or beginning of 1990, I
was informed by Christine that staff reduction was being
discussed, and that her supervisor seemed to be suggesting
her retirement. In April, 1990, Christine informed me that
Ms Stoneking had stated that Mr. Simpkins had inquired
about Christine’s retirement plans, and Ms. Stoneking had
sought authorization to obtain information regarding
Christine’s retirement benefits. These events were
devastating to both of us, since Christine did not seek
retirement and our earlier fears had been confirmed. We
had previously discussed whether Christine’s age was a
factor. In April, 1990 we became convinced and we
consulted with legal counsel regarding age discrimination.
Shortly thereafter, either in late April, 1990 or early May,
1990, Christine showed me several pages of documents
regarding The Nashville Banner’s payroll and finances. We
reviewed these documents together only to ascertain whether
the financial explanations being offered by Ms. Stoneking
were valid. The information was incomplete, and we
actually reached no conclusions. I shared the information
and the documents with no one, other than Christine.
FURTHER AFFIANT SAITH NOT.
_ _ _ __________ S/S________
GENE MCKENNON
48a
STATE OF TENNESSEE )
COUNTY OF DAVIDSON )
AFFIDAVIT OF CHRISTINE MCKENNON
1. I am the plaintiff in the above styled case. I
was employed by The Nashville Banner on or about May 14,
1951, and terminated on October 31, 1990. At the time of
my termination I was 62 years old.
2. Throughout my tenure with The Nashville
Banner, I worked as a secretary to six different individuals,
and as secretary to the national advertising manager, and as
secretary to the classified advertising staff. From February
26, 1982 until March 6, 1989, I held the position of secretary
to Jack Gunter, Executive Vice President. In each of these
positions, my performance was evaluated. My evaluations
were favorable and I never received a negative performance
evaluation.
3. While I was secretary to Mr. Gunter, I
became familiar with Imogene Stoneking, who worked as a
bookkeeper and then became Comptroller. Ms. Stoneking
and I were friendly and in the years 1987-89 we talked often,
almost daily. Ms. Stoneking worked directly with Irby
Simpkins, the Publisher and part owner. Many of our
conversations involved matters relating to Mr. Simpkins and
the business of The Nashville Banner. Ms. Stoneking once
said that it was good to be able to talk to someone, and that
she was grateful that I was available to her.
4. During these years of conversations, Ms.
Stoneking revealed many things about Mr. Simpkins and The
Nashville Banner. I never solicited information from Ms.
Stoneking, and I never revealed information received from
her, except in occasional personal conversations with my
husband. For example, Ms. Stoneking told me details
concerning Mr. Simpkins’ purchase of a condominium in
[Caption Omitted]
49a
Florida, she told me abut his purchase of a large boat, she
told me about Mr. Simpkins buying his daughter a BMW
automobile on her 16th birthday, and his purchase of a
Cadillac. Often, Ms. Stoneking would speak about
developments regarding Mr. Simpkins’ divorce and
remarriage. Ms. Stoneking discussed rumors about personal
affairs among people associated with The Nashville Banner,
and would often discuss decisions made in the Publisher’s
office, involving Banner business. Ms. Stoneking also
discussed the personal business of Brownlee Currey,
Chairman, and Mr. Simpkins’ personal business. Ms.
Stoneking talked about the stress of her job, and her fears
and concerns about the job and its requirements. Ms.
Stoneking also discussed the propriety of Mr. Simpkins’
personal and business activities. Much of the information
which I received during these conversations with Ms,
Stoneking was not otherwise available to me. This
relationship became familiar, and as comfortable to me. I
did not seek this relationship but it was friendly and
interesting. I never divulged the contents of our
conversations, except an occasional mention to my husband.
5. Sometime early in 1989, Ms Stoneking told me
that Mr. Gunter, my boss, the Executive Vice President,
would be terminated. Ms. Stoneking told me not to reveal
this information and I did not, not even to Mr Gunter.
Sometime later, Ms. Stoneking told me that the plan had
changed, and Mr. Gunter would not be terminated, but
would be demoted with a five (5) year contract. Again, I
made no disclosure of this information.
6. During the first week of March, 1989, Mr.
Gunter called me to this office and told me that he was
being reassigned, and that I would no longer be his
secretary. I already knew that Mr. Gunter was being
demoted or reassigned, but I pretended not to vnow.
Effective March 6, 1989, I was reassigned as secretory to
Imogene Stoneking, who was then Comptroller.
50a
7. Immediately after my reassignment to Ms.
Stoneking, she told me "you were almost let go." Ms.
Stoneking explained that my termination had been discussed
relative to Mr. Gunter’s reassignment and/or demotion. I
was shocked and devastated by this information since I had
never felt insecure about my employment, because of my
tenure and my performance record. This was the first time
in my life that I felt that my job was in jeopardy, and I was
very concerned. I believed that any idea to terminate me
was not fair, given my record. I was anxious to know the
reasons.
8. Since 1971,1 had handled payroll functions for
The Nashville Banner, and had complete access to the
personnel records, including Mr. Gunter’s records. After my
assignment to Ms. Stoneking, my office was located on the
third floor. The personnel files were contained in a filing
cabinet in my office, to which I had full access on a daily
basis, without any prohibition. After Ms. Stoneking’s
information regarding my job security, 1 opened Mr.
Gunter’s personnel file which was in the file cabinet in my
office, to learn why there had been any consideration of my
termination. Therein, I found a contract between Mr.
Gunter and The Nashville Banner, changing his assignment
and compensating him for the next five (5) years. Because
I was concerned about my job, and the effect of Mr.
Gunter’s reassignment on my employment, I copied the
contract and took it home to read. I read the contract and
allowed my husband to read it, and never discussed it or
showed it to another person. The only other person I
shared the contract with was my lawyer, after litigation was
commenced in this matter. Again, the contract was located
in a file cabinet in my office, in Mr Gunter’s personnel
record to which I had full access without prohibition. I had
access to records of this nature, which were maintained in
my offices for approximately 18 years.
9. After I was assigned to Ms. Stoneking, and
after she informed me that amy termination had been
51a
considered, I began to experience certain changes in
circumstance which began to increase my concern. Ms.
Stoneking spoke often about the predicament of afternoon
newspapers, and how their future was dim. On numerous
occasions, Ms Stoneking told me that Mr. Simpkins thought
The Nashville Banner had too many secretaries. Ms.
Stoneking indicated, in conversation and otherwise, that Mr.
Simpkins was not pleased with the financial situation of The
Nashville Banner. Ms. Stoneking began to discuss
retirement. Ms. Stoneking used a Tennessean employee,
Robert Jones, as an example. Mr. Jones was an older
employee, and Ms. Stoneking would say that she did not
understand "why these people don’t retire". Ms. Stoneking
would ask me "why don’t they retire?" I recall her once
saying "I hope I can get out at age 55."
10. Later in 1989, I began to experience changes
at work, which I believed were calculated to make my job
less comfortable. For example, my parking privileges were
changed, and I was required to walk further. Seemingly
trivial matters, such as whether or not I was physically
located at my desk became important. Lunch hour
privileges were changed, and weekend work was mentioned.
I began to suspect a pattern calculated to separate me from
my job.
11. In December, 1989, I was moved from the
general administrative payroll to the newsroom payroll,
although my job remained the same (secretary to the
Comptroller). This status change seemed unnecessary and
peculiar, since Ms. Stoneking reported directly to the
Publisher. Soon thereafter, in either December, 1989 or
January, 1990, Ms. Stoneking told me "you might as well
know something, there are going to be staff reductions
around here." I learned that the reduction would be made
from the newsroom budget, not the general administrative
payroll.
12. Sometime between January, 1990 and March,
52a
1990, Ms. Stoneking gave me a stack of documents and
directed that I shred them. My duties regularly involved
shredding documents for Ms. Stoneking. Two shredding
machines were available, a large one which shredded stacks
of papers simultaneously was located in the payroll
department on another floor, and a smaller one which
allowed only the shredding of about two or three pages, was
available in my work area. I was using the smaller machine,
separating the documents, and shredding them two or three
pages at a time, when I noticed figures regarding payroll and
revenues. I was curious regarding these figures because I
heard so much about The Nashville Banner’s financial
conditions from Ms.Stoneking. I copied approximately four
pages, two regarding payroll and two regarding revenues,
and placed them in a file cabinet in my office. My intent
was to review these documents, in an attempt to learn
information regarding my job security concerns.
13. In April, 1990, Ms. Stoneking told me that
Mr. Simpkins had asked for a memo regarding my
retirement plans. Ms Stoneking then requested authority to
contact The Nashville Banner’s pension administrator and
ascertain my retirement status. I had no desire to retire and
no desire to inquire myself, but because of her position, I
allowed Ms. Stoneking to make inquiry. Ms. Stoneking
contacted the pension administrators and gave me a letter
confirming her inquiry. Ms. Stoneking’s inquiry and actions
increased my anxieties, and I became most concerned. I
removed the copied documents and took them home to
discuss my situation with my husband. I believe I took them
home during the end of April, 1990 or the first part of May,
1990. My purpose for removing the documents was to seek
my husband’s counsel. I felt the documents would assist us
in reviewing our options regarding my obviously
deteriorating job situation. By this time I knew I was being
forced out. The retirement inquiry and other circumstances,
led me to conclude that my age was a consideration. I
wondered whether the "gloom and doom" economics of the
53a
Banner were being offered as an excuse. I felt these
documents would provide source information. I shared
these documents and the information contained thereon with
no one except my husband, until I provided them to my
attorney after the litigation commenced.
FURTHER AFFIANT SAITH NOT.
__________ S/S___________
CHRISTINE MCKENNON'
54a
[Caption Omitted]
NOTICE OF FILING DOCUMENTS
Plaintiff gives notice that the following documents
have been filed to supplement response to defendant’s
motion for summary judgment:
1. Selected excerpts from the deposition of
Christine McKennon; (December 17 and 18,
1991);
2. Selected excerpts from the deposition of Irby
C. Simpkins, Jr.; (March 6, 1992);
3. Selected excerpts from the deposition of Elise
David McMillian; (March 9, 1992);
4. Selected excerpts from the deposition of
Imogene Stoneking;
5. A copy of a letter dated April 24, 1990, from
Vickie N. Williams to Imogene Stoneking;
(Exhibit 1 to Christine McKennon Affidavit).
Respectfully submitted,
55a
[Caption Omitted]
SELECTED EXCERPTS FROM THE DEPOSITION
OF IRBY C. SIMPKINS, JR.
DEPOSITION DATES - MARCH 6, 1992
[5] IRBY SIMPKINS, JR., having been first duly sworn,
was examined and deposed as follows:
DIRECT EXAMINATION BY MR. TERRY:
Q. Mr. Simpkins, have you given a deposition
before?
A. I have.
Q. So you know what depositions are about.
A. Yes, sir, I do.
Q. I represent Christine McKennon. You are the
Publisher of the Nashville Banner; is that correct?
A. That is correct.
Q. How long have you been Publisher?
A. Since 1981.
Q. How is the Nashville Banner organized; is it
a corporation?
A. It is a Subchapter S Corporation.
Q. And who holds stock in that corporation?
A. It is owned by two [6] shareholders, each of
them owning 50 percent; Brownlee Currey and myself.
Q. And does Mr. Currey hold an office at the
Nashville Banner?
A. Yes. He is Chairman of the Board.
56a
Q. And your title is Publisher; is that correct?
A. And President.
Q. Would you take this pad and paper and this
pen, or your pen, and draw an organizational chart of the
Nashville Banner, as it existed in October of 1990?
A. Yes, I will. That would be the rest of the
newspaper, would be reporting to Mr. Jones.
Q.
Exhibit 7, "
Well, you have indicated on what will be
I.C.S." Is that you?
A. Yes, it is.
Q. And you are the Publisher; correct?
A. Um-hum (affirmative response.)
Q. And Mr. Currey is the Chairman?
A, Chairman.
Q. And Mr. Jones was then what?
* * *
[12] A.
Tennessee.
To publish a daily newspaper in Nashville,
Q. What is the name of the daily newspaper?
A. Nashville Banner.
Q. Are you a resident of Middle Tennessee?
A. I am.
Q. And where do you reside; what county?
A. Davidson County.
Q. How many persons does the Nashville Banner
Publishing Company employ?
A. I do not know the number.
57a
MR. WAYLAND: Are you talking about
presently?
MR. TERRY: Yes.
THE WITNESS: I do not know.
BY MR. TERRY:
Q. Does the Nashville Banner Publishing
Company-employ more than 30 persons?
A. Yes.
Q. Did the Nashville Banner Publishing Coi ipany
employ more than 30 persons on October 31, 1990?
* * *
[25] McKennon fired?
MR. WAYLAND: I am going to object to
the characterization of the term fired.
BY MR. TERRY:
Q. Mr. Simpkins, why was Ms. McKennon fired?
A. Why was she fired? Because of a declining
economic circumstance of the newspaper.
Q. And what was that declining economic
circumstance?
A. Reduced revenue.
Q. And I would like to understand the reduced
revenue picture that you have now articulated as the reason
for my client being terminated. I don’t know how far back
I need to go, but maybe you could help me by telling me
when the revenues of the Nashville Banner began to decline.
MR. TERRY: Let the record reflect that the
witness is consulting with Counsel.
THE WITNESS: Would you please repeat
58a
the question.
* * *
[82] those employees who survive.
And that’s — you know, that’s, frankly, the
toughest part of running a company is when you are faced
with that.
Q. Do you perceive yourself as running a
company that is going broke?
A. I haven’t gotten the jury in on that yet, Mr.
Terry.
Q. Do you value tenure in your employees?
A. Oh, absolutely.
Q. You think that is an important thing?
A. Absolutely.
Q. You know Ms. McKennon was there for 30
some years.
A. I do. And I value every one of those years
she was there.
Q. And have you ever had an opportunity to
review her personnel file?
A. Not to my knowledge.
Q. If over those years she was favorably
evaluated, would you value that?
A. Oh, absolutely.
Q. By other people, other than [83] you, before
you were there?
A. Sure. I would tell you this, is that our
personnel evaluation system we use at the Banner has got a
lot more heart and compassion and substance in it. We are
59a
in a very intense business, Mr. Terry. Kind of like practicing
law, you know.
And we get really next to each other in our
business, because we are under so much pressure all the
time.
And so I doubt that there are very many bad
personnel evaluations ever been written. I am not sure I
have ever written one since I have been at the Banner, if the
truth be know.
But you need to know that I, from my
interface position, I thought Chris McKennon was a nice
person. And I enjoyed the interface that I had with her.
Q. Did you have an opinion on her performance?
A. Not really directly. Chris had kind of moved
laterally. Any impressions I would have had would have
been secondhand, because I never worked with her directly.
[84] Q. Do you have any impressions of complaints
about her work?
A. Yes, I do.
Q. What type of impression?
A. That her performance, as the pressure of the
work grew from the time she moved from working with Jack,
which was basically kind of busy work in many
circumstances, to real high pressure, that was working for
Imogene, my general impression is that was a challenge.
Q. Has Mrs. Stoneking ever complained t ) you
abut Ms. McKennon’s performance?
A. Well, I would say that Imogene would be
more likely, maybe, to be protective than a complainer. If
you knew Imogene very well, you would know that she
would think it was her responsibility to see that Chris was
doing a good job.
60a
Q. So, you don’t have any recollection of
complaints by Mrs. Stoneking?
A. Not in those terms, no.
Q. What would be the process? And we are not
talking about economic-related
* * *
[88] for them not meeting the standard as an employee, yes,
he would come and talk to me about that before firing them.
Now, if I were out of town and he needed to
summarily take action, he has the authority to do that. But
I am not sure that has ever happened.
Q. What would be an example of having to
summarily --
A. Oh, a reporter who had, really, malconduct.
Violated a confidence; shared newspaper documents with
somebody else; stolen newspaper property. Something like
that. Really serious offenses.
Q. Now, you know you signed this Affidavit,
saying that you would have terminated Ms. McKennon for
talking a couple of pieces of paper and copying them and
keeping them in her desk. You remember that?
MR. WAYLAND: I am going to object to
the question and the characterization. It assumes a fact not
in evidence. The Affidavit doesn’t say anything about Ms.
McKennon keeping paper in her desk.
In fact, her testimony was, and [89] what
come out of this, is it came out in her deposition that she
had surreptitiously, without authorization, copied company
documents and taken them home with her.
BY MR. TERRY:
Q. Let me show you your Affidavit, Mr.
61a
Simpkins. It is Exhibit Number 2.
MR. WAYLAND: And not just copy of
documents, confidential documents.
THE WITNESS: All right, sir.
BY MR. TERRY:
Q. Are you familiar with that Affidavit?
A. Yes.
Q. I think I have another copy, actually.
MR. WAYLAND: Excuse me. (Mr. Wayland
consulting with Deponent.)
BY MR. TERRY:
Q. Have you got another copy? I think your
lawyer had a copy for you. Did you have a copy?
MR. WAYLAND: My name is Eddie
Wayland. I am his lawyer. No, I didn’t make a copy for
him, Mr. Terry. I will
* * *
[95] budgeted, that they were going to be distributing to us
as revenue.
Q. So, that is what you anticipated?
A. Yes.
Q. And the second column is what you received?
A. That’s correct.
MR. WAYLAND: Is that the collective
exhibit?
MR. TERRY: Yes. (Off the record
discussion.)
62a
BY MR. TERRY:
Q. Now, we are looking at Exhibit 2, Mr.
Simpkins, your Affidavit and the attached letter, dated
December 20, 1991. Mr. Simpkins, who drafted this letter?
A. I did, in consultation with consultants,
Q. Did you consult with your lawyer in drafting
the letter?
A. He was one of them, yes.
Q. Did Mr. Wayland provide you with a draft?
MR. WAYLAND: I am going to [96] object,
to the extent that calls for attomey/client communications.
That is absolutely irrelevant.
MR. TERRY: Is that a yes?
MR. WAYLAND: It is an objection. I am
instructing the witness not to answer.
BY MR. TERRY:
Q. Did you draft the Affidavit?
A. No, sir. «
Q. Do you know who drafted the Affidavit?
A. I do not.
Q.
Affidavit?
Do you know when you first saw the
A. I do not know when I first saw it.
Q. Well, it bears a notary seal for December 20,
1991. If you signed it that day, is it probably the day that
you first saw it?
A. I don’t know.
0. Do you have any recollection of the signing of
63a
this Affidavit?
A. No. I mean, I know I signed [97] it, but I
don’t have any recollection of when or where I was or what
was going on when I signed it.
Q. Do you understand the purpose in signing this
Affidavit?
A. I do.
Q. What was it?
A. The purpose in signing this is to tell whoever
affidavits go to - - 1 guess Judge Higgins — that I considered
Chris’s action, that she had testified to, to be a grievous
action on her part.
And that if she had been employed by the
company when I found out about this, she would have been
terminated.
Q. Throughout the Affidavit and letter, the word
misconduct is used.
A. Yes.
Q. What misconduct did she commit?
A. First of all, let me - okay, I am going to refer
to paragraph four of the Affidavit, where I state that she —
"her actions constituted obvious and deliberate misconduct,
including breach of trust and confidentiality obligations."
[98] And both of those are obvious and deliberate
misconduct.
Q. All right. But specifically, what did she do
that was wrongful conduct?
A. She testified that she copied and removed
from the company’s premises, proprietary and confidential
documents and information that she had access to by virtue
of her employment. She was not authorized to copy or steal
64a
those documents.
And that she did not advise me or seek
consent for that action on her part. And that she
admitted in testimony, I am advised, that she did not advise
any other officer or manager of the company, or seek their
consent for her actions.
Q. What documents did she copy and remove?
I just want the record to reflect what Mr.
Simpkins is referring to the Affidavit to answer each of his
questions.
MR. WAYLAND: You are asking him
questions about the Affidavit, Counsel. He said he wanted
a copy to look at them. I resent any implications in your
reference to [99] the record.
BY MR. TERRY:
Q. Despite Mr. Wayland’s resentment, I would
like the record to reflect that Mr. Simpkins is referring to
the Affidavit, in answering the question, which is simply the
truth.
What documents did she copy and remove?
A. My knowledge is Ms. McKennon’s testimony.
I don’t have -- I think there was one document that was a
general ledger; maybe Jack Gunter’s retirement contract. I
am not sure what other documents were stolen.
Q. What is your recollection — how many pages
was the general ledger?
A. I do not know.
Q. What was on it?
A. The entries, the one I remember in particular,
was an entry to Brownlee O. Currey.
Q. What kind of entry?
A. Dollars that had been paid to him.
Q. Payroll information?
[100] A. I don’t know whether it was payroll or not.
Q. Do you know when she took it? Do you know
when she took the general ledger document?
A. No.
Q. Do you know when she copied it?
A. My knowledge is limited to her testimony. I
don’t think she testified with regard — I am sorry. I don’t
know when she took them. I don’t know when she copied
them.
Q. And you don’t know when she removed them
from the company’s property?
A. I only know what she testified to.
Q.
were you?
But you weren’t present for her testimony
A. No, 1 read it.
Q. You read it?
A. Um-hum (affirmative response.)
Q. And do you know when you read it?
A. I am not sure of the exact date, no.
Q. Would it have been before you [101] signed
this Affidavit?
A. Yes.
Q. So, it would be your testimony that you had a
copy of her deposition on or before December 20, 1991?
A. Well, let me see. I think, Mr. Terry, that what
I had was knowledge of the misconduct, from the testimony.
66a
Q. Right.
A. And I subsequently read the testimony.
Q. Okay. So, when you signed the Affidavit, you
probably had information that was given to you by either
Mr. Wayland or Ms. McMillan.
A. Probably, yes.
Q. And you say that as far as the documents —
the involve documents, you think there was a general ledger
sheet. You don’t know how lengthy it was.
A. I do not.
Q. And you think that it had something to do
with { }’s retirement package?
A. No, those are separate [102] documents.
Q. Right.
A. Which was, my understanding, copied from
{ }’s retirement contract.
Q. Okay.
A. I am sorry. I misclassified that. Employment
contract is what I should have said.
Q. I don’t know. You might have been right the
first time.
A. I don’t know. I believe I am right. He is still
an employee of the company. I think I am right.
Q. Mr. Simpkins, aren’t the details important as
to exactly what she took and exactly when she copied them,
and exactly when she removed anything that was copied?
A. Mr. Terry, we are in a highly confidential
business. It is known throughout our company that one of
the most important traits among our employees is honesty,
beyond a narrow definition. It needs to be a definition of
67a
being forthrightly honest.
And any action of any employee at the
Nashville Banner, that even smelled of
* * *
[105] an opportunity to come discuss her fears with me. She
never did that.
I have absolutely no pity for an employee who
uses fear, undiscussed, as an excuse for theft and dishonesty.
Q. The dishonesty, Mr. Simpkins, was what,
again? What was dishonest about what is alleged?
A. She took information that was confidential in
the newspaper, which is a dishonest act.
Q. She took it where?
A. She took it home, she testified.
Q. Well, and what is dishonest about that?
A. She was not authorized to have that
information at home.
Q. It was unauthorized?
A. Yes. So that is dishonest.
Q. Okay.
A. I mean, if the Judge tells you you have got to
do something, and you just say -- you do it by omission or
commission, you are a dishonest lawyer because you have
not done [106] what you agreed with the Judge you would
do.
She was a dishonest employee. She had
agreed to handle confidential information on behalf of the
company, and she didn’t do that honestly. She took part of
that for her own personal use, to hold for her own gain
whenever she thought she might need it or it might come in
68a
handy or for insurance. That is clearly dishonest.
Q. And you are certain that no matter what she
had explained to you, had you talked to her, and given the
fact that she had 30 years with the company, and given the
fact that she was afraid of losing her job, that the only action
you would have taken was termination?
MR. WAYLAND: Objection, to the extent
the question is totally hypothetical, and further assumes facts
not in evidence. And finally, because it is a compound
question. You can answer, Irby. I just wanted that
objection on the record.
THE WITNESS: I would have been perfectly
open to Chris coming to my office and sitting down and
discussing any kind of [107] unhappiness, unpleasantness,or
other problems she had with regard to her job.
BY MR. TERRY:
Q. No, I am asking you — let’s you assume this.
Let’s assume that Mrs. Stoneking had come to you.
A. Um-hum (affirmative response.)
Q. And Ms. McKennon was still working there;
okay? Ms. McKennon was still working there. And Mrs.
Stoneking came to you and said, I found this general ledger
form in Chris McKennon’s desk. She had it in her desk.
What would you have done at that point —
MR. WAYLAND: I want to object to the
question, to the extent —
BY MR. TERRY:
Q. -- if she was still working there?
MR. WAYLAND: as a hypothetical quc stion.
THE WITNESS: I would have terminated
her.
69a
BY MR. TERRY:
Q. For having the general ledger report in her
desk?
[108] A. Yes. That is clearly a dishonest act and
misconduct.
Q. Do you know that she has access to the
general ledger?
A. Sure.
Q. So you would have terminated her for copying
something that she had access to?
A. Yes. She has no authority to copy that, unless
she is instructed to by her supervisor.
Q. And the fact that she had worked there 36
years, and the fact that she had copied that because she was,
whether rightfully or wrongfully, concerned about losing that
job, your only action would have been to terminate her?
A. You know, actually, I would have terminated
her faster because of the 36 years. Because she knows - she
knows better that a person that has been there six months,
that is an absolute violation of the confidentiality of her job.
Q. Can you show -- when you say it is a violation
of confidentiality —
[109] A. Um-hum (affirmative response.)
Q. -- where is the violation of confidentiality?
How has confidentiality been violated?
A. Because any time that you copy information
which is confidential to the company, you open up
opportunities for somebody else to see it, or for it to be used
in a manner that is negative to the purposes of her job.
Q. So, there is an agreement -- I mean there is
an opportunity —
70a
A. Obligation.
Q. There is an opportunity to violate
confidentiality, but there is no violation of confidentiality
here; is there?
A. Well, sure, it was a violation of confidentiality.
Q. Are you saying that Ms. McKennon didn’t
know this information, anyway?
A. She was not a party to { }’s retirement
contract, or to the amount of money that { } was being
paid out of the company. That was confidential information.
[110] Q. Do you know of any other instance where
someone has been summarily terminated by your company
for any misconduct, whatsoever, in the last five years?
A. Not in the last five years.
Q. Do you have any procedure for suspension or
probation from employment at your company?
A. No.
Q. Is there any reprimand short of termination?
A. Oh, sure. But not for the kinds of misconduct
that are in these documents.
Q. What type of employee action would be —
have you employed, short of termination?
MR. WAYLAND: Under what
circumstances?
BY MR. TERRY:
Q. Any circumstances.
A. We have had employees who were not doing
their job, who are not writing, taking pictures, with the
competency that they should; or who had bad attitude
problems; who [111] were consistently lacking in
71a
I mean, fairly standard kinds of issues that
you have to deal with. Employees who need supervision and
management to improve themselves.
BY MR. TERRY:
Q. And what type of action have you taken with
these employees, short of termination?
A. Suspension of wage increases, supervisor
sitting down with them and spending a good deal of time
explaining to them that if they don’t straighten up,
termination will follow.
Q. Do you know of any harm that has accrued to
your company, as a result of Ms. McKennon copying these
documents and taking them home?
A. Well, I am not sure how those -- I am not
sure how stealing those documents relates to this lawsuit.
But this lawsuit is a lot of harm to my company.
Q. How is that?
A. It takes up a lot of time and it costs a lot of
productivity.
money.
72a
[Caption Omitted]
SELECTED EXCERPTS FROM THE DEPOSITION
OF ELISE DAVID MCMILLAN
DEPOSITION DATES - MARCH 9, 1992
[5] ELISE McMILLAN, having been first duly
sworn, was examined and deposed as follows:
DIRECT EXAMINATION
BY MR. TERRY:
Q. State your full name.
A. Elise David McMillan.
Q. Ms. McMillan, have you given a deposition
before?
A. Yes.
Q. I know you are familiar with them, so I won’t
explain this deposition to you. But I will say, if you need to
stop and consult with Mr. Wayland, please feel free to. Or
if you want to take a break. And I don’t think this
deposition will take very long.
A. Okay.
Q. What is you current position?
A. My current position at the Banner is Executive
Vice-President for Administration and General Counsel.
Q. How long have you held that position?
A. Since 1988.
MR. WAYLAND: Mr. Terry, before you go
any further, as Ms. McMillan said, since ’88 she [6] has been
Vice-President and General Counsel of the Nashville
Banner, such that certain of her duties and day-to-day
responsibilities fall within the realm of being an in-house
73a
counsel, in which she is functioning as an attorney for the
company, and in her capacity as general counsel. And other
of her duties fall within more of an administrative realm and
role that aren’t really contingent upon the fact that she is an
attorney.
Ms McMillan is here. She wears both hats
today. She wore both hats prior to today; she wore both
hats for the period of time that are relevant for the purposes
o this lawsuit. That we are agreeing to have Ms. McMillan
testify, and agreeing, to the extent that we can, consistent
with the attomey/client privilege or attorney work product
privilege, to have her testify.
And we are just saying, for the record, she is
in dual capacity. And it is our understanding, based upon
our research of the applicable case law, that by permitting
her to [7] testify as to those matters which would not fall
within her realm as being General Counsel, or in the role as
an attorney for the Company, that that doesn’t waive the
right to claim privilege in appropriate context, when and if
your inquiring directs itself to those areas that Ms. McMillan
was acting in a capacity as an attorney and General Counsel.
And with that statement of our understanding,
we are prepared to go forward. I just wanted to put that on
the record at the outset, so that you would know our
position.
BY MR. TERRY:
Q. Ms. McMillan, how were you employed by the
Banner, initially?
A. The very first, when I first started working for
the Nashville Banner?
Q. Un-hum (affirmative response.)
A. I started in 1978, as a reporter.
Q. All right. And when did you - did you have
74a
a law degree then?
A. No, I did not.
Q. When did you obtain a law degree?
* * *
[15] termination?
A. I don’t remember.
Q. Were you asked to prepare any written
memorandum, expressing a legal opinion on these
terminations?
A. No.
Q. Were you asked to consult with outside
counsel, regarding these terminations?
MR. WAYLAND: I want to object to the
question, to the extent that calls for attomey/client
communications, because to the extent —
MR. TERRY: I asked her what she did.
There is no attomey/client communication. I just asked her
what she did.
MR. WAYLAND: You asked her what she
was asked to consult. If she answers that yes or no, it
communicates to you what the communication was.
MR. TERRY: Well, all right.
Q. After that meeting, did you consult with
outside counsel, regarding these terminations?
MR. WAYLAND: I am going to object to
the question, to the extent that you [16] put regarding on
there.
BY MR. TERRY:
Q. After that meeting, did you consult with
75a
outside counsel?
A. Yes.
Q. Did you consult with Mr. Wayland?
A. Yes.
Q. And what did you consult with Mr. Wayland
about?
MR. WAYLAND: Objection, to the extent
that it calls for attomey/client communications.
BY MR. TERRY:
Q. Did you — after consulting with Mr. Wayland,
did you receive any document from Mr. Wayland, expressing
a legal opinion regarding the terminations?
MR. WAYLAND: Objection, to the extent
that it calls for attomey/client communications.
MR. TERRY: And I assume you are
instructing her not to answer.
MR. WAYLAND: Yes, sir, I am instructing
her to not answer. If you are [17] going to push —
MR TERRY: I am not waiving this attorney-
client privilege issue. But I know we are not going to
resolve it today. I just want to get the questions on the
record.
MR. WAYLAND: Also, just — well, since
you are putting it on the record, let me say, to the extent
that there were communications between Ms. McMillan and
myself, they may also implicate work product privilege.
BY MR. TERRY:
Q. Did your discussions with Mr. Wayland relate
to Christine McKennon?
MR. WAYLAND; Objection, to the extent it
76a
calls for attomey/client privilege and/or work product.
Direct the witness not to answer.
I also object to the relevancy of the question.
You’ve not shown relevancy to anything about these
communications, Mr. Terry, because the witness has testified
that she didn’t even find out about the list, until after the
decision had been made. So, I put a relevancy objection on
top of all of the ones that I made so far.
[18] BY MR. TERRY:
Q. When you met with Mr. Simpkins and Mr.
Jones, did you understand that your legal opinion could
affect the terminations, one way or another?
MR. TERRY: Let the record reflect that she
is consult willing with her Counsel.
A. Will you ask that question one more time?
Q. When you met with Mr. Simpkins and Mr.
Jones, did you understand that your legal opinion could
affect the terminations, one way or another?
A. No. When I got that list, it was my
understanding that was a final decision.
Q. When you — have you attended any seminars
or courses on employment discrimination?
A. On employment discrimination?
Q. Yes.
A. I have attended King and Ballow’s "In Search
of Management Rights" seminar. And that would be about
it.
Q. All right. Have you directed [19] Imogene
Stoneking to attend any seminars or courses, regarding
employment discrimination?
MR. WAYLAND: Did you say has she
77a
directed Mrs. Stoneking to attend?
MR. TERRY: Yes.
A. Not that I recall.
Q. Has she, to your knowledge attended any
seminars on employment discrimination?
A. Not that I recall. But, you know, she doesn’t
work for me, so she may have and I wouldn’t know it.
Q. Was she present at any seminar or course put
on by King and Ballow, that you attended?
A. I don’t recall. She may have gone to one of
the "In Search of Management Rights", but I don’t
remember if she did or not.
Q. What is the name of that course?
Q. "In Search of Management Rights".
Q. Did you consult with M. Jones, as a non
lawyer, as - well, is it Executive
* * *
[34] Q. Okay. Do you have any knowledge,
whatsoever, of anybody at the Nashville Banner encouraging
Ms. McKennon to retire, before October 31, 1990?
A. No.
Q. Have you ever heard a discussion of Ms.
McKennon’s retirement, by anybody at the Nashville
Banner?
A. I do recall one time, and it was in — when we
were doing salary reviews, which would have been the Spring
of 1990. We were going through the reviews, and I
remember that Irby Simpkins asked what Chris’es retirement
plans were. And Imogene was supposed to get back with
that information to Irby.
78a
And that is the last I really — that’s the only
discussion I would have heard.
Q. It was in the Spring of ’90; is that right?
A. (Witness nods in the affirmative.)
MR. WAYLAND: Mrs. McMillan, you have
to articulate your answer. You are [35] shaking your head.
THE WITNESS: Yes.
BY MR. TERRY:
Q. Where does that discussion occur?
A. I believe it would have been in our old
executive conference room, in the Banner offices.
Q. Who was present?
A. I can tell you that, normally, in a salary review
session, I would be present, Imogene Stoneking, Irby
Simpkins, and Eddie Jones.
MR. WAYLAND: Ms. McMillan, the
question was who was present at that meeting. You either
know who was there or you don’t. You said normally who
would be there. Were those individuals all there at the
meeting?
THE WITNESS: I can’t - I don’t know.
BY MR. TERRY:
Q. Normally, those people would have been
there; is that correct?
A. Yes.
Q. Do you recall - this question by Mr.
Simpkins, regarding Ms. McKennon’s retirement [36] plans,
was directed to whom?
A. It would have been directed to Imogene
79a
Stoneking.
Q. All right. And do you recall what would have
caused or occasioned a question regarding Ms. McKennon’s
retirement plans?
A. Yes.
Q. Do you recall Ms. Stoneking’s response?
A. No, I don’t.
Q. Do you recall any other details about that
conversation?
A. No.
Q. Are there minutes kept of those meetings?
A. Yes.
Q. If that meeting occurred in the Spring of 1990,
do you have any specific recollection of anything else
involving Ms. McKennon’s termination or retirement, until
that meeting that you discussed that occurred in October,
when you are advised of the general list?
A. No, I don’t.
[37] Q. So you have, so to speak, a void of knowledge,
basically, at that point. You don’t have any — your weren’t
in any meetings about who is going to be terminated; who is
going to be laid off, or anything like that. Is that right.
MR. WAYLAND: I am going to object to
the characterization of void of knowledge, Counsel. The
mere fact that something you might have wished happened,
would have happened, doesn’t constitute a void of
knowledge. The witness has testified she was involved in no
other conversations.
MR. TERRY: I certainly don’t want to
negatively want to characterize that. I am trying to get
through that period of time, without going day by day. I’m
80a
trying to --
MR. WAYLAND: Why don’t you ask her if
after that date she was involved in any other meetings
involving that topic.
BY MR. TERRY:
Q. I accept that, and ask you to answer that.
A. No, I was not.
Q. Your recollection, with regard
* * *
that we might be working with — that Chris would be let
go, and that we might be working with Ann Manning.
But beyond that, I don’t have any specific
recollection. I think I was more focused on, you know,
getting the things prepared.
Q. Did Mr. Jones ever ask your input, any
information from you, regarding the performance of Chris
McKennon?
A. At what point?
Q. Anytime in 1990. Well, let me qualify that.
Let’s say between August and October.
A. Like I explained to you before, the way Eddie
Jones manages is to ask how people are doing. He may
have talked about Chris, in relation to the preparation of the
salary review or budgets. I don’t remember, specifically, if
he did or not.
Q. Would that have been in April?
A. Could have been, but I just don’t remember
when it would have been.
Q. Did Mr. Simpkins ever ask your opinion or
ask for any information from you, regarding the performance
81a
of Ms. McKennon?
A. I don’t recall anything.
MR. TERRY: Let’s take a short recess here.
I may be finished. (Whereupon, a short recess was held.)
MR. TERRY: I don’t have any more
questions. Thank you.
82a
[Caption Omitted]
SELECTED EXCERPTS FROM THE DEPOSITION
OF IMOGENE STONEKING
DEPOSITION DATES - MARCH 6, 1992
* * *
[47] that. And you have never contacted us, by coming up
and looking through the documents that we had available,
and we have indicated our willingness to make available for
your inspection, pursuant to your document request.
BY MR. TERRY:
Q. Okay. Mrs. Stoneking, are you aware that
since we convened here in December, and I started taking
your deposition, that the Nashville Banner has now taken
the position that Christine McKennon could have been fired
because she took documents that you gave her? Are you
aware of that?
A. Yes.
Q. And how did you become aware of that?
A. I signed one of the Affidavits.
Q. What Affidavit?
A. That said had I - as I recall, the Affidavit
indicated that had I known she had taken documents, that
she would have been fired.
Q. That she could have been fired?
A. On the spot.
Q. Okay.
[48] A. Which I would have recommended to Mr.
Simpkins to do.
Q. Who prepared that Affidavit for you?
A. I don’t know.
Q. You don’t know?
A. No.
Q. When did you first see that Affidavit?
A. I don’t recall the date.
Q. Well, do you recall who brought it to you?
A. As I recall, Elise McMillan.
Q. Let me show you a document that is marked
"Affidavit of Imogene Stoneking". It bears your signature on
page two. And it is notarized on December 23, 1991. See
if you can identify this document as your Affidavit.
A. Yes.
Q. You state in paragraph three -
MR. WAYLAND: Excuse me, if you are
going to ask the witness questions about the Affidavit, I
would request that she be permitted to see a copy of it.
MR. TERRY: Here is a copy.
84a
EXHIBIT
ACTUARIES AND CONSULTANTS
BRYAN, PENDLETON, SWATZ & McALLISTER
ONE BURTON HILLS BOULEVARD
SUITE 275
POST OFFICE BOX 150949
NASHVILLE, TENNESSEE 37215
TELEPHONE (615) 665-1640
April 24, 1990
Ms. Imogene Stoneking
Comptroller
Nashville Banner Publishing Company
1100 Broadway
Nashville, Tennessee 37202
Dear Imogene:
Re: Nashville Banner Publishing Company
Pension Plan
As you requested, we have prepared a benefit
application for Ms. Christine McKennon. If Ms. McKennon
does retire, her benefit application must be revised to show
the amounts payable in the form of joint and survivor
annuities. To calculate these amounts, we would need her
husband’s date of birth. If you have any questions about the
enclosed document, please feel free to call me.
Sincerely,
s/s___________ _
Vickie N. Williams, F.S.A.
Enclosure
85a
[Caption Omitted]
REPLY TO PLAINTIFFS RESPONSE
TO DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
INTRODUCTION
Plaintiffs Response to Defendant’s Motion for
Summary Judgment ("Motion") raises grave concerns about
abuse of the judicial process. Faced with this dispositive
Motion, Plaintiff has attempted to defeat it by altering her
sworn testimony in a March 13, 1992, affidavit that, in
several material ways, contradicts her December, 1991,
deposition testimony. In addition, Plaintiffs affidavit alters
her prior testimony by adding wholly new purported factual
information in an apparent effort to create disputed facts.
Notwithstanding these thirteenth hour efforts to
manufacture disputed facts, Plaintiff, even after an extension
of time to conduct additional discovery,1 does not deny the
facts that make the Company’s Motion meritorious as a
matter of law. Although she belatedly attempts to justify her
wrongdoing, Plaintiff admits that she surreptitiously copied
and took confidential, proprietary Company documents from
the premises, that she was not authorized to do this, and
that she shared these purloined documents with her
husband. Based on these undisputed facts and on the clear
1 Plaintiff unilaterally obtained a 48-day extension of
time to respond to the Company’s Motion, ostensibly to
enable Plaintiff adequately to prepare a response. It is
telling that, after taking the depositions of four of the
Company’s principals during this extension, Plaintiff relied
on none of this testimony to refute the factual basis for the
Company’s Motion. Indeed, the deposition testimony simply
reaffirmed the seriousness of Plaintiffs misconduct.
86a
law of the Sixth Circuit2 as well as other Circuits, Plaintiff
cannot defeat the Company’s Motion for Summary
Judgment based on the after-acquired evidence of her
admitted misconduct.
ARGUMENT
I. PLAINTIFF’S ATTEMPT TO SUBMIT A
REVISED VERSION OF THE TRUTH FAILS TO
CREATE GENUINE ISSUES OF FACT
The Company’s Motion is based primarily upon
Plaintiffs own December 17 and 18, 1991, deposition
testimony. In an effort to circumvent this, Plaintiff has
submitted an affidavit, dated March 13, 1992, attempting to
defeat the Company’s Motion by creating purported issues
of material fact where none exists. Plaintiffs affidavit was
prepared three days before her Response was filed and is
carefully crafted and orchestrated to support the arguments
raised in her Response. The affidavit is obviously self-
serving. Indeed, Plaintiff does not refer to any proof other
than the affidavit, obviously tailored specifically for the
Response.3 Thus, faced with a dispositive motion, Plaintiff
submits an affidavit that contradicts her own unequivocal
deposition testimony taken in December, 1991, at a time
when she was not faced with the prospect of having her case
dismissed.
2 See Johnson v. Honeywell Information systems, Inc., 57
F.E.P. Cases 1362 (6th Cir. 1992), discussed in and attached
to the Company’s Supplemental Authority in Support of
Defendant’s Motion for Summary Judgment.
3 Plaintiff does not once cite to the record in the
Statement of Facts portion of her Response and cites only
twice to her affidavit in her Statement of Disputed Material
Facts. Consequently, the Company and the Court are left to
wonder about the source of virtually all of Plaintiffs alleged
factual information.
87a
For example, Plaintiff has attempted to change dates
concerning the surreptitious copying and taking of the
Company’s payroll ledger and profit and loss statement. In
Plaintiffs affidavit, she states that these highly confidential
documents were copied after January, 1990, and removed
from the Company’s premises in April or May, 1990.
(Plaintiffs Affidavit, 111112, 13). However, in her deposition,
Plaintiff was unequivocal in her testimony that she copied
and removed these documents from the Company’s premises
in September or October, 1989. Significantly, in her
deposition she made no mention of other dates when the
documents were copied or later taken home as she now
denies in your affidavit. In reference to copying and taking
the Company’s payroll ledger, Plaintiff testified:
Q. You made a copy of it from the original?
A. It’s a copy, yes.
Q. You made the copy?
A. Yes.
Q. When did you made this copy?
A. There again, I have no specific date except
it’s got to be in the fall sometime in
September, October of 1989.
Q. So you made this copy sometime in
September or October of 1989; is that
correct?
A. Right.
Q. And you took it home?
A. I took it home.
Q. You did it in September of 1989?
A. Approximately the fall in September or
88a
October.
(See Exhibit A attached hereto). Plaintiff testified similarly
with regard to copying and taking the profit and loss
statement in October or November, 1989. (See Exhibit B
attached hereto).
Second, Plaintiff states in Paragraph 4 of her
Statement of Disputed Facts that she "copied only the
contract" relating to the Company manager. However, in
Plaintiffs deposition, she admitted copying and taking other
confidential documents from the manager’s personnel file as
well, i.e., handwritten notes of the Company’s General
Counsel and two memoranda concerning this manager.4 In
regard to these other documents, Plaintiff testified:
Q. You took all of those documents out of [the
manager’s] personnel file?
A. That’s correct.
Q. And you made a copy of it?
A. That’s correct.
(See Exhibit C attached hereto). Noticeably absent from her
affidavit is any mention of these other confidential
documents that she surreptitiously photocopied and removed
from the Company’s premises. Indeed, her affidavit conflicts
outright with her deposition.
Third, Plaintiff states in her affidavit that she was
told by the Company Comptroller, Ms. Stoneking, that a
Company manager, Mr. Gunter, would be demoted.
(Plaintiffs affidavit, HU 5, 6). This statement is a stunning
contradiction to Plaintiffs deposition testimony where, after
extensive questioning, she stated flatly that "I don’t know of
4 For the Court’s convenience, these other documents
are attached as Collective Appendix H to Defendant’s
Statement of Undisputed Facts.
89a
anybody specifically telling me," (See Exhibit D attached
hereto). This is a prime example of the numerous
contradictions created by Plaintiffs effort to revise her prior
sworn testimony.
Despite extensive discovery, Plaintiff does not
reference any proof in her Response, save her own self-
serving affidavit. This affidavit materially contradicts her
original sworn deposition testimony, upon which the
Company’s Motion is based.5 The affidavit should be seen
for what it really is, an after-the-fact fabrication. Moreover,
in her entire twenty-six page Response, Plaintiff does not
cite the Court to one shred of evidence to refute the
Company’s proof that Plaintiff surreptitiously photocopied
confidential business information and then removed this
5 After filing the affidavit with the Court and after the
discovery cutoff date, Plaintiff tendered fifty pages of
changes to her deposition. Defendant’s counsel received
these changes on March 19, 1992, 73 days after Plaintiff
received the deposition. A preliminary review indicates that
almost all of the more than 160 attempted changes are
substantive reversals of prior testimony. For example, over
a dozen of these attempted changes conveniently transform
"yes" to "no" or vice versa. The court reporter stated that in
17 years of reporting she had never seen "such voluminous
corrections by a witness, much less 50 pages worth." (See
Exhibit E, letter from court reporter, attached hereto).
At this point, the Company will not address with the
court the propriety of Plaintiffs attempted sabotage of the
judicial process. Because the errata were submitted out of
time and because plaintiff has failed in other ways to comply
with Federal Rules of Civil Procedure 30(e), the matter is
not yet ripe for a judicial determination under Rules
32(d)(4), 11, or 37. See Combs v. Rockwell Int’l Corp., 927
F.2d 486 (9th Cir. 1991).
90a
information from the premises. Instead, Plaintiff simply
seeks to justify her admitted misconduct.
In short, Plaintiffs attempt to submit a revised
version of the truth fails to create genuine issues of fact.
Additionally, Plaintiffs Response raises grave concerns
about the length to which she is willing to go to salvage her
cause of action.
91a
Exhibit E
HAND DELIVERED
March 19, 1992
Mr. R. Eddie Wayland
Attorney at Law
200 Fourth Avenue, North
1200 Noel Place
Nashville, TN 37219
In re: Christine McKennon vs. The Nashville
Banner Publishing Company
Dear Mr. Wayland:
Attached is a folder with enclosed errata pages that
was hand delivered to me by Ms. McKennon yesterday,
March 18, 1992 pertaining to Vol. I of her deposition, which
was hand delivered to your office and Mr. Terry’s office on
December 31, 1991, and pertaining to Vol II of her
deposition, which was hand delivered to your office and Mr.
Terry’s office on January 6, 1992. Attached to the errata
pages is a copy of a letter to me from Ms. McKennon, which
is self-explanatory. You will note that the 50 sheets of
errata pages have not been executed by Ms. McKennon, nor
her signature notarized.
I feel I must point out in my 17 years of reporting, I
have taken countless depositions of experts, physicians, and
lay persons where the signature was not waived by the
witness and have never in my career had such voluminous
corrections made by a witness, much less 50 pages worth.
92a
If I can be of any further assistance in this matter,
please do not hesitate to call me.
Yours very truly,
cc: Mr. Michael E. Terry
TeriA. Campbell
93a
[Caption Omitted]
MOTION TO SUPPRESS
REVISIONS OF PLAINTIFFS DEPOSITION
Defendant, The Nashville Banner Publishing Co.
("the Company") moves to suppress the attempted revisions
by Plaintiff to her deposition, pursuant to Federal Rules of
Civil Procedure 30 and 32, and the Court’s inherent power.
As more fully set forth in the accompanying memorandum
of law, the grounds for this motion to suppress are:
1. Some 73 days after receiving the transcript of
her deposition, Plaintiff tendered 50 pages of substantive
changes.
2. The deletions from, additions to, and reversals
of her deposition testimony constitute material changes to
the transcript of Plaintiffs deposition testimony and have
been made in bad faith.
WHEREFORE, the Company respectfully requests
that this Court suppress the revisions, find that Plaintiff has
refused to sign her deposition transcript and deem the
transcript an accurate representation of the deposition
testimony to be used as fully as though signed. In addition,
the Company believes that this Court should impose the cost
of the Motion to Suppress on Plaintiff.
Respectfully submitted,
94a
[Caption Omitted]
MEMORANDUM OF LAW IN SUPPORT
OF MOTION TO SUPPRESS
REVISIONS OF PLAINTIFFS DEPOSITION
Defendant, The Nashville Banner Publishing Co.
("the Company") has moved to suppress the attempted
revisions by Plaintiff to her deposition, pursuant to Federal
Rules of Civil Procedure 30 and 32, and the Court’s inherent
power. This memorandum is submitted in support of the
motion.
FACTS
Plaintiff, formerly a confidential secretary with the
Company, was terminated as part of a reduction in force.
She sued, alleging age discrimination. In the course of
discovery, the Company learned that Plaintiff had copied
and stolen confidential company information. This serious
misconduct while employed would have led to Plaintiffs
immediate termination, if the Company had known of it.
The Company questioned Plaintiff about this
misconduct in her deposition. Plaintiff admitted that she
had copied confidential
* * * *
A. BREACH OF CONFIDENCE
Plaintiff admitted in her deposition that, when she
stole the documents, she knew that her behavior was wrong:
Q: [Mr. Wayland] And if you had violated those
confidences and disclosed confidential
information that you received as a result of
your position as a confidential secretary, did
you understand that you could be disciplined
or discharged for that?
95a
A: [Plaintiff] I never did that. I didn’t have that
problem. My reputation was confidential and
discreet, so that was no problem.
Q: But if you had done it, did you understand
that you could have been discharged for that?
A: I think anybody would have thought that.
Plaintiffs Dep. Vol. I 153. Plaintiffs version of the results
of a breach of confidence now have been completely
changed. In her revisions, Plaintiff tenders this answer:
"No, not necessarily" Exhibit B. The reason given is "to
correct the answer." Exhibit B.
In the following question, counsel explored her
knowledge that the theft of confidential company
information would lead to discharge:
Q: [Mr. Wayland] So you agreed with that and
you understood that then?
A: [Plaintiff] Yes.
Plaintiffs Dep. Vol. I 153. In her revisions, Plaintiff seeks
to delete the indicated answer and replace it with "No." The
reason given for the change is "Upon further reflection."
The questioning continued:
Q: [Mr. Wayland] And the Company had the
right to rely upon you not to disclose that
information?
A: [Plaintiff] Yes.
Plaintiffs Dep. Vol 1 153. In her revisions,Plaintiff instructs
the court reporter to delete the "Yes" answer and replace it
with "No." The reason given for the change is "To correct
an error." Exhibit B.
Plaintiff as a confidential secretary was in a position
of trust and knowingly violated that trust by stealing
96a
information. Her knowledge that the job she held required
a higher degree of discretion than she demonstrated is
relevant to this lawsuit.
Another example involves Plaintiffs reasons for
taking the company information:
Q: [Mr. Wayland] And you knew you weren’t
authorized to make the copies and take those
home, didn’t you?
A: [Plaintiff] Yes.
Q: Why did you do that?
A: For my protection. For insurance purposes.
Q: From what?
A: I had began to notice a subtle trend of
harassment, so I decided I might take them as
insurance.
Plaintiffs Dep. Vol. I 233-44. In her revisions, Plaintiff
instructs the court reporter to delete the indicated answer
and replace it with "For my protection." The reason given
for the change is "To be more consistent."
These issues were sufficiently explored so that it is
unlikely that Plaintiff was in any way confused. Plaintiff has
not claimed that she was confused or that she misunderstood
the questions. Rather, she seeks to simply change her story
after being faced with a motion for summary judgment based
on her prior sworn testimony. To allow Plaintiff to make
these substantive revisions will corrupt the discovery process
and transform it to a useless sham rather a method for
learning the truth about pending cases.
B. PRIVILEGES
During her deposition, Plaintiff testified largely from
note cards that her husband prepared for her. Plaintiffs
Dep. Vol. I 127-31; Collective Exhibit 4. Despite using this
97a
prepared script, Plaintiff now has attempted to revise her
answers including changes from "Yes" to "no" or vice versa
in sixteen places. Many of these revisions bear on her
claims that privileges were denied to her and that these
denials were a form of harassment designed to cause her
resignation.
Plaintiff was asked whether her former supervisor
treated her any differently from her last supervisor. For
example:
Q: [Mr. Wayland] Now, did he [former
supervisor] let you take longer than an hour
for lunch?
A: [Plaintiff] No.
Plaintiffs Dep. Vol. I 76. Plaintiffs revisions change that
answer to "Yes." The reason given is "To correct an error."
Exhibit B.
Her
altered:
other claims of privileges have been similarly
Q: [Mr. Wayland] So the company had changed
your parking space several times during your
employment?
A: [Plaintiff] Yes.
Q: So that would be a change or difference in
privileges; correct?
A: Right.
Q: So you understood what I mean when I say
changes in privileges?
A: Yes.
Plaintiffs Dep. Vol. I 95. Plaintiff now attempts to insert
a non-responsive discourse in lieu of her answer:
But the main issue here is the fact that I had a
98a
reserved parking space at various Banner parking
location for at least fifteen years. That privilege was
stripped away from me shortly after I began working
for Ms. Stoneking. The removal of this privilege was
one of the earlier harassments and mistreatments of
me by Banner management in hopes I would resign
or retire.
Exhibit B. The reason offered for deleting the "Yes" and
adding this non-response is "To supplement answer."
However, based on Plaintiffs agreement during the
deposition that she understood the terms, the questioning
continued:
Q: [Mr. Wayland] Were there any other changes
like that during the course of your time with
the Banner?
A: [Plaintiff] Yes. Then I — when you say
privilege, I consider it a privilege. During the
whole time that I worked at the paper, I was
allowed to read the newspaper as my
workload permitted.
Q: Yes, ma’am. Now you just read that off of
one of your little cards [Exhibit 4 to Plaintiffs
Deposition], didn’t you?
A: Yes. Ms. Stoneking told me I could not read
the newspaper, period.
Q: You just read that off the card your husband
prepared for you; correct, about reading the
newspaper?
A: These are my writings — it’s his writing, but
its my comments.
Q: Right. But you just read that, didn’t you?
A: Yes.
99a
Plaintiffs Dep. Vol. I 95. Plaintiff has tried to delete the
"Yes" and insert another non-responsive speech here:
No. The main issue here is for the entire 39 1/2
years I worked at the newspaper, I had been allowed
to read the newspaper as my workload permitted.
Only under Mr. [sic] Stoneking was that privilege
stripped away. At the same time, other secretaries
were allowed this privilege. Discriminating treatment
without a doubt.
Exhibit B. Plaintiff gives as a reason, :To correct an error."
When asked whether he duties were the same
throughout her time as a secretary to her former supervisor,
Plaintiff testified:
A: Yes. When I left being his secretary, I still
was doing the community affairs department.
Plaintiffs Dep. Vol. I 65. Now, she has told the court
reporter to change the answer to "No." The reason given for
the change is "to correct an error." Exhibit B.
C. THE REDUCTION IN FORCE
Plaintiff contends in this lawsuit that she had a right
to be transferred to another position rather than terminated
in a reduction in force. She argues that not transferring her
is evidence of discrimination. The Company has no
obligation to offer a transfer. However, Plaintiff was asked
about her willingness to be transferred to another position
in the front office. She testified:
A: I may have said I don’t want to go, but I
never said I wouldn’t go because I told Mr.
Simpkins I was going.
Plaintiffs Dep. Vol. I 120. The new answer is "No.' the
reason given is "More appropriate answer." Exhibit B The
answer is more appropriate only in that Plaintiff believes it
favors her legal position.
100a
Later during the deposition she again admitted that
she had not wanted to transfer:
Q: [Mr. Waylandj Now, one more time. Isn’t it
true that you told Ms. Stoneking at some
point in time after your started working as
her secretary that you did not want to work in
the executive office for Mr. Curry and Mr.
Simpkins?
A: [Plaintiff] Not Mr. Curry, No, I did not say I
didn’t want to work for Mr. Curry. I said I
didn’t want to go up there.
Q: You told Ms. Stoneking that?
A: But I --
Q: Excuse me. You told Ms. Stoneking that?
A: That’s correct. But I want it on the record that
it’s not that I didn’t say I won’t go up there. I
said I didn’t want to go on there.
Plaintiffs dep. Vol. I 149. In her revisions, Plaintiff
attempts to delete the admission that she did not want an
alternate position and substitute: "That’s not correct. I may
have said I preferred to work in other areas than the
executive office." The reason given for the substitution is
"To supplement the answer."
These are a few examples from the 160 changes that
Plaintiff delivered to the court reporter, after waiving
signature by failing to sign the deposition volumes by
February 6, 1992. it these pervasive changes are allowed
would be to make the time-consuming and expensive
deposition essentially useless and to circumvent the
Company’s opportunity to explore the facts and reasons
behind many clearly untruthful answers.
The court should not allow the Plaintiff to mock the
judicial process by these revisions. Rule 32 gives the
101a
Court the power to suppress all or part of a deposition.
Changes to a deposition have
* * *
102a
EXHIBITS TO DEFENDANT’S MOTION TO SUPPRESS
REVISIONS OF PLAINTIFF’S DEPOSITION
[Caption Omitted]
DECLARATION OF TERI CAMPBELL
I, Teri Campbell, do hereby state and affirm
upon personal knowledge as follows:
1. I am a registered professional reporter and
notary public for the State of Tennessee. I have been a
court reporter for 17 years.
2. I was the court reporter for the deposition of
Christine McKennon, on December 17 and 18, 1991.
3. I reduced the deposition to typewritten form
and delivered it to counsel for the parties on December 31,
1991 and January 6, 1992.
4. On March 18, 1992, Plaintiff in this case,
Christine McKennon hand-delivered to me fifty pages of
errata for the deposition.
5. The changes ordered by the Plaintiff are not
corrections of transcription errors.
6. I have not yet inserted the changes and stated
reasons into the record, being unsure of whether these
changes are allowable, given the lapse of time, and of who
would pay for the revision given Plaintiffs cover letter.
7. I have never before had anything like these
changes in all the hundreds of depositions that I have taken.
I pointed this out to Mr. Wayland in a letter to him; a true
and correct copy of that letter is attached hereto as Exhibit
C-l.
I declare under penalty of perjury pursuant to
28 U.S.C. § 1746 that the foregoing is true and correct.
Executed this 7th day of April, 1992.
TERI CAMPBELL
104a
HAND DELIVERED
March 18, 1992
Ms. Teri A. Campbell
Nashville Court Reporters
P.O. Box 290903
Nashville, TN. 37229-0903
Dear Teri:
I am hereby delivering to you today the following:
(1) Nineteen (19) sheets of corrections, changes,
etc.to my deposition of December 17, 1991
which you recorded at the offices of King &
Ballow. These sheets are all consecutively
numbered from 1-19 and are all properly
marked as Volume I.
(2) Thirty-one (31) sheets of corrections, changes,
etc. to my deposition of December 18, 1991
which you recorded at the offices of King &
Ballow. These sheets are all consecutively
numbered from 1-31 and are all properly
marked as Volume II.
I do not feel comfortable signing anything until I
have your written assurance that the changes are properly
received and have been recorded appropriately.
While I would like for my attorney to have a
completely revised version of my deposition, I am not in a
position to pay $1.35 per page for photocopying. Therefore,
your assurance, in writing, that all these changes,
corrections, etc. have been made will be the document that
causes me to sign the appropriate forms and have my
signature notarized.
In order there is no mistake, I am not going to pay
any additional amount to get photocopies of my deposition.
The $813.30 I paid for photocopies originally, I feel, was
absorbent.
My attorney, Michael E. Terry, is out of town this
week, however, he is due back next Monday, March ?3.
Sincerely,
Christine P. McKennon
cc: Michael E. Terry
106a
I, CHRISTINE McKENNON, do hereby
certify that I have read the foregoing transcript of the
deposition given to me on the 17th day of December, 1991,
and that this is a true and accurate record of the testimony
given by me, except for the following corrections I believe
should be made.
Page Line
_76 13
Reads Should Read
No Yes
Reason for Change
_89 _7
To correct an error
Knew Remembered
Reason for Change More appropriate answer
.95 20 Writings Words
Reason for Change More appropriate answer
120 9.10 & 11 Delete this 3 line No
answer and insert
Reason for Change More apDrooriate answer
153 JL6 Yes No
Reason for Change Upon further reflection
159 __4 64 63
Reason for Change To correct an error
For the first couple
172 13 Well, as I sav. of months
Reason for Change To more accurately respond
179 25 Through March Delete: Through March
Reason for Change Upon further reflection____________
107a
193 _6 budget
Reason for Change To correct an error
computer
108a
I, CHRISTINE McKENNQN, do hereby certify that
I have read the foregoing transcript of the deposition given
to me on the 17th day of December, 1991, and that this is a
true and accurate record of the testimony given by me,
except for the following corrections I believe should be
made.
Page Line Reads
66 16 & 17 Delete 2-line answer and insert_____
Reason for Change To correct an error_______________
No_________________________________________
Page Line Reads
95 6 Delete 1-line answer and insert_____
Reason for Change To supplement the answer _________
But the main issue here is the fact I had a reserved parking
space at various Banner parking locations for at least 15
years. That privilege was stripped away from me shortly after
I began to work for Ms. Stoneking. The removal of this
privilege was one of the earlier harassments and
mistreatment of me by Banner management in hopes I
would resign or retire._____________
Page Line Reads
95 23 Delete 1-line answer and insert______
Reason for Change To correct an error_________
No. The main issue here is for the entire 19 1/2 v ars I
109a
worked at the newspaper, I had been allowed to read the
newspaper as my workload permitted. Only under Mr.
Stoneking was that pri
vilege stripped away. At the same time, other secretaries
were allowed this privilege. Discriminating treatment
without a doubt.
Page Line Reads
114 22 Beginning at line 22 and delete the entire
answer
115 4 all 8 lines ending on page 115 line 4 and
change to read
Reason for Change To correct the statement
No. I had not received the news about my Mother’s
eyesight as of that time. Very late in the day, maybe 4:15
p.m., I was in Mr. Gunter’s office when Mr. Simpkins
entered and asked me why I was crying. I told him about
the news of my Mother’s eyesight loss. Then. Mr. Simpkins
said. "Well, I just came back to tell you (Chris') Jack has
done a good selling job, etc. You are not going to be
110a
moving up front after all." For the record, mv Mother is
now legally blind. _____ ________
111a
I, CHRISTINE McKENNON, do hereby
certify that I have read the foregoing transcript of the
deposition given to me on the 17th day of December, 1991,
and that this is a true and accurate record of the testimony
given by me, except for the following corrections I believe
should be made.
Page Line Reads
128 12 thru 15 Delete all four lines of answer and
insert
Reason for Change To correct an error_______________
No. The substance is mine. He printed them for me while
I dictated them. He prints better than I do. I asked him to
print them for me so the captions would be lamer than my
typewriter could make. Also, some of my notes were in
shorthand._____
Page Line Reads
149 9 thru 12 Delete 3-line answer and insert__________
Reason for Change To correct an error_______________
No. I may have said I preferred to work in other areas
rather than in the executive offices.___________________
112a
Page Line Reads
149 15 thru 17 Delete 3-line answer and insert
Reason for Change To supplement the answer_________ _
That’s not correct. I may have said I preferred to work in
other areas than in the executive offices._______________
113a
I, CHRISTINE McKENNON, do hereby
certify that I have read the foregoing transcript of the
deposition given to me on the 17th day of December, 1991,
and that this is a true and accurate record of the testimony
given by me, except for the following corrections I believe
should be made.
Page Line Reads
149 22 thru
150 1 Delete 5-line answer and insert_____
Reason for Change To correct the record
No, I did not tell her that._____________
Page Line Reads
153 13 Delete 1-line answer and insert
Reason for Change To correct the answer
No, not necessarily____________ _________________
Page Line Reads
155 8 Delete 1-line answer and insert_____
Reason for Change To supplement mv answer_________
I’m not sure I knew the amount Mr. Currev paid for his
Lexus I told mv husband Mr. Currev bought a new Lexus
and the following day was involved in a "fender bender" near
the newspaper building. I then asked mv husband if he knew
114a
what a Lexus looked like. He said, "Yes, there’s a
dealership up the street from our church. I’ll show you
Sunday.”______________________
115a
March 23, 1992
HAND DELIVERED
Michael E. Terry, Esq.
Suite 315
150 Second Avenue North
Nashville, Tennessee 37201
Re: McKennon v. Nashville Banner Company
Dear Mr. Terry:
We received from the court reporter on March 19,
1992, a hand-delivered package of fifty pages of "errata" for
Plaintiffs deposition. The two-volume deposition was
initially delivered by the court reporter on December 31,
1991, and January 6, 1992.
Plaintiffs signature and right to make legitimate
changes or corrections to her deposition were waived when
she failed to comply with the requirements of Rule 30 of the
Federal Rules of Civil Procedure. Further, we are shocked
that she would belatedly attempt through her proposed
changes to fundamentally alter her version of the facts as
she testified to under oath. The changes she proposes are
an outrageous subversion of the Federal Rules of Civil
Procedure and the integrity of the judicial process.
It is entirely improper for Plaintiff to attempt to
change the substance of her answers. Never in the practice
of law have I seen such clear factual manipulation and
dishonesty. The court reporter’s cover letter confirms our
belief that Plaintiffs willingness to "revise" her prior sworn
testimony is at least extraordinary.
Plaintiffs letter indicates that you were out of town
when the proposed "errata" were delivered. Perhaps you
116a
have not had an opportunity to review her "errata."
Therefore, we call on you to instruct your client to withdraw
all the purported changes that she tendered to the court
reporter.
Failing withdrawal of the "errata," we will seek from
the Court all appropriate remedies and sanctions, including
suppression of the changes, costs, and possible dismissal of
the suit. We look forward to your prompt response.
REW/jk
Sincerely,
R. Eddie Wayland /s/
R. Eddie Wayland
117a
[Caption Omitted]
DEPOSITION OF CHRISTINE McKENNON
Tuesday, December 17, 1991
VOLUME 1
* * *
[29] A. "Willful conclusions." My attorney and I have
drawn conclusions that it was a willful act from the certain
facts that I can present you whenever you would like to hear
them.
Q. You say "copyboy, Pete Green."
A. Yes. He was one of the ones that was
terminated.
Q. Have you spoken to Mr. Green about this
lawsuit?
A. I have not.
Q. There’s some shorthand here, and then the
word "contract," and then more shorthand, and then below
it is the word "comptroller."
A. That was any confidential information that I
had would be seen because I worked for the comptroller.
Q. Would you explain what you mean by that?
A. You had to see confidential information when
you worked for the comptroller.
Q. That was part of your job?
A. That was part of my job.
Q. And you understood that was confidential
information?
A. I certainly did. I was a very confidential
secretary. That’s probably why - - 1 was discreet; I was very
118a
confidential.
[30] Q. And you understood your job required you to
be confidential?
A. That’s right.
Q. Down at the bottom, what is that?
A. Oh, yes. Oh, yes.
Q.
please.
If you would, just tell me what that says,
A.
what -
I have to elaborate, Mr. Wayland, to tell you
Q. You can read what it says.
MR. TERRY: Tell him first what it says, and
then you have a right to explain your answer.
THE WITNESS: "Elise asked for secretarial
files. Calculated harassment." Okay. She came in a month
before the firing. She asked for all the secretarial files. She
took them out. That shows deliberate, calculated, willful
motivation on her part.
She did not bring them back in. I asked Ms.
Stoneking, "What’s going on? Why did she ask for all the
secretarial files?" She never answered me. About ten days
or maybe two weeks — I don’t know what time span it was -
- they never did come back. She never did bring them back,
nor did her secretary.
So I checked the files one day. They were all
back. They sneaked them back in when I was at
* * *
[37] Q. Did the company continue to pay you during
that period of time that you were off?
A. Yes.
119a
Q. How old were you then?
A. 79? About 51.
Q. Was Mr. Simpkins the publisher of the
newspaper at that time?
A. Mr. Simpkins bought the Banner in August of
1979.
Q. So the answer to the questions is yes?
A. Yes.
Q. Have you had any surgery since 1979?
A. Not since 1979.
Q. Any other medical problems of any nature?
A. Since 1979?
Q. Yes, ma’am.
A. No.
Q. Any psychiatric problems or treatment since
1979?
A. No.
Q. You know I’m talking about 1979 to date?
A. That’s correct; yes, I understand that.
Q. Any psychological problems?
A. No.
Q. Have you been under the care of a physician
* * *
[42] that she not disclose the exact dollar amount. In other
words, she does recall that. Although Mr. McKennon does
not, she does. But it is her recollection that she’s prohibited
from disclosing the exact dollar amount by a document that
120a
they maintain in a lockbox at their home.
Mr. McKennon will retrieve that document
and read it; and I will read it and see what our obligations
are. I do not recall the exact dollar amount. She has told
me what she recalls it as. It reinforces my opinion that is
not relevant evidence. But I will look at that and I may be
able to share the document with you and let you decide
whether or not it’s disclosable. I want it to be clear that that
is the only specific fact that she has any recollection about
that has not been disclosed. Everything else has been told.
BY MR, WAYLAND:
Q. Now, Ms. McKennon, you started in the —
when did you start working for The Nashville Banner?
A. The latter part of January, 1971.
Q. ’71?
Q. ’71?
A. Right.
Q. So your employment history from 1951 to ’71
was not with The Nashville Banner, was it?
A. No. It was with NPC.
Q. And that was a distinct employer from The
[43] Nashville Banner, isn’t that correct?
A. That is the - they are all considered the same.
When I was transferred to the Banner, we were under the
same pension and the same vacation policy. You do not
have to start again like you would a new company. In other
words, my term of employment would not start in ’71. It
still remains at ’51 -- 1951. My vacation continued on, so
that is a continuation of 39 years.
Q. You’re talking - Ms. McKennon, your
deposition is going to go a lot quicker if you’ll just answer
121a
my questions not and elaborate. I want to get answers to my
questions. The Newspaper Printing Corporation and The
Nashville Banner are two different entities, aren’t they?
A. They were.
Q. They still are, aren’t they?
A. Well, NPC is no longer.
Q. No longer what?
A. No longer NPC. It’s Banner and Tennessean.
Q. All right. When did that occur?
A. I don’t know. Several years ago.
Q. When you came to The Nashville Banner that
was a different entity than Newspaper Printing Corporation;
correct?
* * *
[46] came to The Nashville Banner in 1971 that was a
separate entity than NPC?
A. Yes.
Q. You worked for different people then than
you had when you worked for NPC?
A. That’s correct, yes.
Q. The Banner continued to be a sej arate
company from NPC after you came to work at the Banner,
correct?
A. Yes.
Q. And it continued to be a separate company
through today; is that correct?
A. Yes.
Q. At some point in time, if I understand your
122a
testimony, NPC was dissolved?
A. Right.
Q. It became the Banner and Tennessean?
A. Right.
Q. And they are separate companies; correct?
A. They are separate companies, but we have the
same vacation. It’s all -- what I’m trying to say, Mr.
Wayland, is my employment date is not chopped off at 1971.
We’re all under the same pension — we were under the same
pension plan years ago. We had the same policy on
vacations. When I came to the Banner, I didn’t
* * *
[66] Q. Basically it was a secretarial function that you
performed; correct?
A. Yes. Also it was a lot of form letters that
Jane Srygley got out. It was a lot of stuffing of envelopes.
Q. Any other change in your duties during the
time you worked for Mr. Gunter front he beginning to the
end?
A. I don’t believe so.
Q. Was there any decrease in your duties during
the time you worked for Mr. Gunter?
A. No.
Q. Everything you told me you did for him at the
start, you continued to do for him when you left being his
secretary in 1989?
A. Yes. When I left being his secretary, I still
was doing the community affairs department.
Q. Were you doing all the other things, the
payroll and the letters?
123a
A. Yes. Excuse me. The payroll -- the payroll
was shifted back to Elise McMillan’s office with Helen
Fuller, her secretary, doing the payroll.
Q. When was that?
A. I believe that was shifted — if may memory
serves me correctly, that was shifted when Mr. Gunter was
* * *
[76] Q. And that was from the time you came to the
Banner until the time you left; correct?
A. That’s correct.
Q. What you’re saying is that during this period
of time, some of your bosses didn’t hold you to the 11:00 to
12:00 lunch hour?
A. That’s right.
Q. Now, would Mr. Gunter hold you to the 11:00
to 12:00 lunch hour?
A. No.
Q. Did he let you take longer than an hour for
lunch?
A. No.
Q. He never let you take longer than an hour for
lunch?
A. I may have been late coming back five
minutes. What I’m saying —
Q. No, ma’am. I just asked did he ever let you
take longer than an hour for lunch? That’s all I’m asking.
A. Yes, I was longer than an hour sometimes.
Q. How often did you take longer than an hour
for lunch while you worked for Mr. Gunter?
124a
A. It probably averaged five or ten minutes.
Q. How many times a week?
* * *
[95] Q. So that would be a change of difference in
privileges; correct?
A, Right.
Q. So you understand what I mean when I say
changes in privileges?
A. Yes.
Q. Were there any other changes like that during
the course of your time with the Banner?
A. Yes. when I - when you say privilege, I
consider this a privilege. During the whole time that I
worked at the paper, I was allowed to read the newspaper as
my workload permitted.
Q. Yes, ma’am. Now, you just read that off of
one of your little cards, didn’t you?
A. Yes. And Ms. Stoneking told me I could not
read the newspaper, period.
Q. You just read that off the card that your
husband prepared for you; correct, about reading the
newspaper?
A. These are my writings -- it’s his writing, but
it’s my comments.
Q. Right. But you just read that, didn’t you?
A. Yes.
Q. Any other privileges other than the newspaper
privilege?
* * *
125a
[120] A. I never used the words "I won’t go to the front
office."
Q. No, ma’am. That wasn’t my question, Ms.
McKennon.
A. I said, "I prefer to be your secretary out here."
Q. My question is, did you ever use the words
with Mr. Gunter "I don’t want to go to the front office?
A. I may have said I don’t want to go, but I never
said I wouldn’t go because I told Mr. Simpkins I was going.
Q. Did you ever use the words with Mr. Gunter
that you didn’t like working in the front office?
A. No.
Q. Prior to this time when Mr. Simpkins said he
was thinking about transferring you to the front office in
1988, isn’t it true that you had an occasion filled in the front
office for short periods of time?
Q. Not on a regular basis.
Q. But you had done it, hadn’t you?
A. Just to look after the phone.
Q. Did you do it after this in 1988 - this period
of time we’re talking about?
A. I’m sorry. I can’t remember. It was done
periodically. I can’t pinpoint a time.
* * *
[127] (Chris McKennon’s Duties at Time of
Termination on 10/31/90 marked
Exhibit 3.)
BY MR. WAYLAND:
Q. So it’s your testimony that you typed what’s on
126a
Exhibit 3, your list of job duties?
A. I typed it up.
Q. Then he marked the yellow highlights and
wrote "new"?
A. Yes.
Q. What’s the significance of the yellow
highlighting on items one, three, four, five, seven and eight?
A. Okay. The highlighting is what I was doing.
Of course, these were all of my duties when I was working
for Ms. Stoneking. These that are highlighted are duties
that I was also performing when I was working for Mr.
Gunter. The new ones, two, six and nine, are the new duties
that I had when I was working for Ms. Stoneking that I did
not perform for Mr. Gunter.
Q. So as I understand it, the ones that are new
are duties you performed in addition to the duties you
performed previously?
A. Under Ms. Stoneking; that’s correct.
Q. Now, prior to the lunch break this morning,
[128] one of the things you showed me was a series of three-
by-tive cards numbered 1 through 19.
A. Yes.
Q. You testified that these were written in your
husband’s handwriting?
A. That is correct. I also, I believe, made a
notation that I had written some lines on about three of the
cards.
Q. On three of the cards you had written
something additional on them, but the substance is basically
your husband’s?
A. That’s correct. They were comments for me,
127a
and he wrote them in his handwriting with the exception, I
believe, of, like I say, three cards that has a little bit of my
handwriting on it.
Q. Show me the cards that have your handwriting
on it. Which ones are they?
A. These three.
Q. For the record, the three cards that have your
handwriting on it are card number 10 that’s entitled "Early
Mondays." And there is some handwriting —
A. That is my handwriting.
Q. -- "didn’t do me any good."
A. Right.
Q. Then card number 19 says "Vacation Day and
[129] Discrimination"?
A. That’s right. And the last paragraph, the last
sentence.
Q. It says, "Harold Huggins, Jim Laise, Sara
Dunn, Susan Quick. Work sheet - ’88 & ’89."
A. Right.
Q. And then card 18 entitled "Parting Remarks."
A. The "over" down there is my handwriting.
Q. You wrote "over" on the front?
A. That’s correct.
Q. And on the back of the card you say, "no
punch and cake; no gold watch; no appreciation"?
A. That’s correct. That’s my handwriting; right.
Q. May I have the cards back, please.
A. Yes. (Witness passes cards to counsel.)
128a
MR. WAYLAND: For the record, I
want these cards — card number one says, "Reading
Newspaper at Desk -- as work allowed." That’s the title of
it. Then there’s handwriting.
Card two days --
MR. TERRY: Is this testimony?
MR. WAYLAND: - "Subtle Remarks
About Retirement." I’m identifying them for the record.
MR. TERRY: They are identified by
[130] number, aren’t they?
MR. WAYLAND: Card two says,
"Subtle Remarks About Retirement." Card three says,
"Beauty Shop Privilege." Card four says, "Two Hours of Sick
Leave. November ’89." Card five says, "Subjected to Verbal
Abuse/Humiliation, June ’90." Card six says, "The Threat of
Staff Reductions." Card seven says, "Price Waterhouse."
Card eight says, "Personnel Telephone Calls." Care nine is
entitled "Irby Says." Again, each of these cards, I’m just
reading off the title of the card. Card number ten is entitled
"Early Mondays." Card number 11 is entitled "Irby Simpkins
Will Fix It."
BY MR. WAYLAND
Q. There’s handwriting "Hattie Corley." Is that
your handwriting?
A. That’s my husband’s. Let see that for a
moment.
Q. That’s card number 11.
A. That’s my husband’s.
MR. WAYLAND: Card number 12 is
entitled "You Can’t Win." Card number 13 is "Lunch Hour
Harassment." Card number 14 is, "What are Your
Retirement Plans." Card number 15 is, "Leaving My Desk
129a
(after she left.)" Card number 16 is "Work on Saturdays."
Card number 17 is "Vacation Discrimination." [131] Card
number 18 is "Parting Remarks." Card number 19 is entitled
"Vacation Pay." I want to mark these cards as Collective
Exhibit 4.
(Copies of 19 handwritten note cards by Mr.
McKennon and Ms. McKennon marked
Collective Exhibit 4.)
THE WITNESS: May I have the cards back, Mr.
Wayland, or are they to be turned in to you?
MR. WAYLAND: I think we can - at an
appropriate time, we’ll make copies of the cards and make
the copies the exhibit, and you can have the actual cards
back.
MR. TERRY: And you can refer to any of these
exhibits while you’re being deposed.
MR. WAYLAND: Counsel, that’s kind of what I
wanted to talk to you about. During the course cf Ms.
McKennon’s deposition this morning, we took an inordinate
amount of time, in my judgment, to cover relatively simple
matters. Throughout the course of her testimony, as I noted
repeatedly on the record, she had these cards in front of her
in her hands. She repeatedly referred to the cards to answer
questions and to give answers oftentimes which were not
responsive. It was very obvious that she was in effect
testifying from her note cards.
* * *
[136] needs to be refreshed, she’s entitled to refresh her
recollection.
BY MR. WAYLAND:
Q. Ms. McKennon, we talked previously before
130a
lunch about this break — this area of breaks and entitlement
to breaks What do you base your understanding that you
were entitled to two, fifteen-minute breaks on?
A. That was just a normal office procedure that
people get breaks from their work.
Q. Is it your testimony that people at the Banner
got two, fifteen-minutes breaks from their work every day?
A. I did not see a policy as such. When I was in
advertising and classified, it was a general practice. I always
took breaks when I was with NPC. I cannot answer — I
really cannot give you an answer why I never took breaks at
the Banner. It was just something that I had never done. It
was stopped when I went there in 71. Why? I can’t answer
why. I just did. It was a general procedure known that
secretaries got breaks.
Q. When you were working at NPC, you got two,
fifteen-minute breaks?
A. That’s correct.
Q. I’m not talking about NPC, Ms. McKennon,
I’m [137] talking about the Banner. Are you aware of any
policy that was in effect at the Banner from 1979 on that
said you got to take two, fifteen-minute breaks?
A. There was no policy at the newspaper to my
knowledge. It was just a general consensus people that
needed to get away for a little while from their work.
Q. Yes, ma’am, but that’s different than two,
fifteen-minutes breaks every day, isn’t it?
MR. TERRY: Objection to the argument.
BY MR. WAYLAND:
Q. Getting away from their work is different
than, two, fifteen-minute breaks every day, isn’t it?
131a
A. You would take a fifteen-minute break to get
away from your desk and come back refreshed.
Q. Is it your testimony that you were entitled
under company policies and practices to two, fifteen-minutes
breaks every day from 1979 until your separation from
employment?
A. That was no set policy. It was just understood
like it was when I was in advertising. People did that. They
took a smoke break, coffee break, Coke break, whatever.
To my knowledge, Mr. Wayland, I never did see it in writing
as a policy, but people did it.
Q. Did anybody ever tell you, you were entitled
to two, fifteen-minute breaks every day from 1979 until
* * *
[149] repeat the same question five times before I finally get
an answer. So would you please try to cooperate with me?
A. Yes, I will,
Q. Now, one more time. Isn’t it true that you
told Ms. Stoneking at some point in time after you started
working as her secretary that you did not want to work in
the executive office for Mr. Currey and Mr. Simpkins?
A. Not Mr. Currey, no, I did not say I didn’t
want to work for Mr. Currey. I said I didn’t want to go up
there.
Q. You told Ms. Stoneking that?
A. But I -
Q. Excuse me. You told Ms. Stoneking that?
A. That’s correct. But I want it on the record
that it’s not that I didn’t say I won’t go up there. I said I
didn’t want to go up there.
Q. Yes, ma’am. Thank you for finally answering
132a
my question, Ms, McKennon. Now, did you also tell Ms.
Stoneking that you did not want to work for Irby Simpkins
in the front office?
A. I don’t know that I told her I didn’t want to
work for Irby Simpkins. I made the statement that I didn’t
want to go work up in the executive offices because I was
happy where I was. I did not want to
* * *
[152] A. Not as much as Ms. Stoneking. The payroll.
Q. But at one point you did payroll with Mr.
Gunter, too, didn’t you?
A. Yes.
Q. And you understood that you were to treat
that information confidential —
A. I did.
Q. — for Mr. Gunter?
A. I did.
Q. Did you also understand that you should treat
the information that you dealt with in connection in working
for Ms. Stoneking as confidential?
A. I did.
Q. And you understood that that was proprietary
business information?
A. I did.
Q. You understood that it was not supposed to
be disclosed?
A. Yes.
Q. And you understood it was not supposed to be
disclosed outside of the workplace and people who were
133a
authorized to know at the company?
A. Yes.
Q. There wasn’t any question about that in your
mind, was there?
[153] A. I was a highly confidential secretary and
discreet.
Q. And if you had violated those confidences and
disclosed confidential information that you received as a
result of your position as a confidential secretary, did you
understand that you could be disciplined or discharged for
that?
A. I never did that. I didn’t have that problem.
My reputation was confidential and discreet, so that was no
problem.
Q. But if you had done it, did you understand
that you could have been discharged for that?
A. I think anybody would have thought that.
Q. So you agreed with that and you understood
that then?
A. Yes.
Q. And the company had a right to rely upon you
not to disclose that information?
A. Yes.
Q. And did you ever while you were employed at
The Nashville Banner breach a confidentiality — that
confidentiality obligation that you had?
A. I certainly didn’t.
Q. It’s your testimony you never divulged to
anyone outside the company any proprietary information?
* * *
134a
[155] Q.
on a car?
Did you tell him how much money { } spent
A. I may have.
Q . Did you?
A. Probably yes. When he bought a Lexus, yes.
you?
Q . In fact, you did tell your husband that, didn’t
A. Yes.
Q.
find out how
you?
In fact, you and your husband went down to
much one cost and to look at the car, didn’t
A. We pass the Lexus —
Q . No, ma’am. Just answer my question.
A. Yes, sir, it is. We pass the dealership every
at a Lexus.
Q. Did you tell your husband how much money
different people at the Banner made?
A. Not everybody.
Q. But some people?
A. Yes, to my husband, but that’s all.
Q. But you did tell your husband, didn’t you?
A. Not everybody’s salary.
Q. Well, whose salary did you tell your husband?
A. I cannot pinpoint that, Mr. Wayland.
[156] Q. Mr. Simpkins’?
A. I cannot pinpoint.
135a
Q. Did you tell him Mr. Simpkins’ salary?
A. Yes.
Q. Did you tell him Mr. Currey’s salary?
A. Yes.
Q. Did you tell him Ms. McMillan’s salary?
A. Yes.
Q. Did you tell him Ms. Stoneking’s salary?
A. Yes.
Q. Did you tell him Mr. Gunter’s salary?
A. Yes.
Q. Did you tell him Mr. Jones’ salary?
A. Yes.
Q. Did you tell him Mr. Kessler’s salary?
A. I don’t remember.
Q. Did you tell him other secretaries’ salaries?
A. Yes.
Q. Did you tell him other employees’ salaries?
A. I don’t know how many people I told, but I
consider my husband and myself as one person. I don’t
consider that going outside the building and telling
confidential items.
Q. Your husband is not an employee of The
Nashville Banner, is he?
* * *
[158] discussions about the confidentiality of the information
that you had access to as a result of being her secretary?
136a
A. Did we ever — please restate that.
Q. Did you and Ms. Stoneking ever had
discussions about the confidentiality of the information that
you had access to as a result of being her secretary.
A, Oh, yes. We both knew that it was highly
confidential.
Q. Didn’t she sometimes tell you not to talk
about those kind of things?
A. No, because she trusted me. She knew I was
confidential when I went to work for her. That was my
reputation.
Q. Do you think she had the right to rely upon
you in that regard?
A. I know she had the right to rely upon me.
Q. Now, do you recall there came a time when
Ms. Helen Fuller retired?
A. Yes. She retired June 1st.
Q. Of what year?
A. 1990.
Q. Her position — she was Elise McMillan’s
secretary before her retirement, was she not?
* * *
[160] want to transfer to Ms. McMillan?
A. Oh, no. I would like to interject here if I
might, Mr. Wayland, I was happy working for Ms. Stoneking
until the pattern started of all of the harassments. Then
after the harassments, they were unbearable, and then, of
course, I was unhappy. I’ve always enjoyed my job.
Q. It was unbearable?
137a
A. Yes, it was when the harassment started.
Q. When did the harassment start? Sometime
after June of 1990; is that right?
A. No, about April 1990. One thing, she told me
I couldn’t read the newspaper anymore. I had always — my
workload permitting, I had always been able to do that as
my workload permitted. The other secretaries were able to
do it.
Q. As your workload permitted; is that right?
A. That’s correct.
Q. But, in any event, in June of 1990, when a
position came open for Ms. McMillan’s secretary, you were
very happy and satisfied with your position with Ms.
Stoneking?
A. Yes, I was.
Q. Now, you became Ms. Stoneking’s secretary in
March of 1989?
* * *
[167] A. I did not.
Q. When you transferred to work for Ms.
Stoneking was there any changes in your wages?
A. That was in March. Yes, because April was
when the secretaries got their raises. So I - yes, I had a
raise that April.
Q. As part of your wage review; correct?
A. Mr. Gunter did not give me - it was during
the demotion and so forth, so he did not write up an
evaluation on me during 1989. The raise became effective
in April. The once-a-year raise for the secretaries came in
April.
138a
Q. Every year; correct?
A. That’s correct.
Q. So when you transferred to Ms. Stoneking’s
secretary, your wages weren’t changed at that time?
A. In March, no.
Q. They were changed in April consistent with
the yearly-wage review; correct?
A. That’s correct.
Q. And you received an increase in wages; ;s that
correct?
A. That’s correct.
Q. You keep saying Mr. Gunter was demoted.
Did anybody ever tell you that?
[168] A. Yes.
Q. Who?
A. It was common knowledge.
Q. Who told you that Mr. Gunter was demoted?
A. When somebody -
Q. No, ma’am. Who told you Mr. Gunter was
demoted?
A. Mr. Gunter - I don’t want to say this.
MR. TERRY: State your problem with
answering the question,
BY MR. WAYLAND:
Q. Do you understand the question?
A. I understand the question, but I can’t say that
anyone actually told me. It was just knowledge.
139a
Q. So the answer is nobody told you that Mr.
Gunter was demoted, did they?
A. No, I can’t think of anybody specifically. It
was common knowledge.
Q. Do you know for a fact whether or not Mr.
Gunter was demoted, or is that just your characterization?
A. No, it was a demotion. Everyone considered
it a demotion.
Q. But nobody from the company announced that
Jack Gunter was demoted, did they?
[169]A. Everyone including the Tennessean --
Q. No, ma’am. Nobody from the company —
MR. TERRY; Let her finish.
MR. WAYLAND: Well, she’s not answering
my question.
MR. TERRY: How do you know until she
finishes?
MR. WAYLAND: She’s talking about the
Tennessean. The company doesn’t involve the Tennessean.
BY MR. WAYLAND;
Q. Nobody from the Banner told you -- by the
Banner, I mean the company, anybody in a position of
authority -- told you or anyone else that Jack Gunter had
been demoted, did they?
A. I don’t know of anybody specifically telling
me.
Q. Thank you. Now, other than these additional
duties that you assumed when you became Ms. Stoneking’s
secretary, were thee any other changes in your duties?
A. No, not to my knowledge.
140a
Q. Were there any changes in your hours of
work?
A. No.
Q, The same hours of work? I believe you
testified previously that your lunch period stayed the
* * *
141a
[Caption Omitted]
DEPOSITION OF CHRISTINE McKENNON
Wednesday, December 18, 1991
VOLUME II
* * *
[223] going to be documents that we are designating as
confidential pursuant to the protective order. This might
take a moment or two if you want to take a short break and
stretch your legs. We’ll go off the record. Is that
acceptable?
MR. TERRY: Sure.
(Recess taken Banner Fiscal Payroll
Ledger ending 9-30-89 marked Exhibit 24.
Banner Profit & Loss Statement for
October of 1989 marked Exhibit 25.
Handwritten notes to Irby Simpkins from
Elise McMillan Marked Exhibit 26.
Memo dated 2-23-89 to { } from Elise
McMillan marked Exhibit 27. Memo
dated 2-3-89 to Irby Simpkins from
Imogene Stoneking marked Exhibit 28.
Two pages of handwritten notes in re:
{ } marked Exhibit 29. Employment
Agreement dated 3-1-89 between { } and
Banner marked Exhibit 30.)
MR. WAYLAND: We have marked for
purposes of exhibits to the deposition of Ms. McKennon
exhibit Exhibits 24 through 30. These are documents that
we are specifically identifying as confidential pursuant to the
terms of the protective order.
BY MR. WAYLAND:
Ms. McKennon, let’s start with Exhibit 24 that you
142a
have in front of your. It’s entitled - also to [224] the extent
necessary, the transcript references to these exhibits are
considered to be confidential under the protective order.
Exhibit 24 is a Nashville Banner Fiscal Period
Payroll Ledger. Do you see that?
A. Yes.
Q. You had a copy of that; is that correct?
A. I don’t recall that.
Q. Your counsel produced that as part of your
responses to the interrogatories; correct?
A. Okay. Yes.
Q. Now, do you see handwriting on there that
says "annual"?
A. Yes.
Q. And a figure. Whose handwriting is that?
A. My husband’s.
Q. So you took this document home and showed
it to your husband?
A. Yes.
Q. Where did you get this document?
A. I come across all of this confidential
information in the comptroller’s office. I mean, it was made
available to me.
Q. So you obtained this in the role of your - in
your role as secretary to the comptroller?
[225] A. It’s information I see across her desk and my
desk.
Q. This would be part of the information that
would be considered to be confidential information?
143a
A. Right.
Q . Highly confidential correct?
A. Right. Right.
Q.
Exhibit 24?
Do you have the original of this document,
A. No.
Q. You made a copy of it from the original?
A. It’s a copy, yes.
Q . You made the copy?
A. Yes.
Q. When did you make this copy?
A.
got to be in
1989.
There again, I have no specific date except it’s
the fall sometime in September, October of
Q. So you made this copy sometime in September
or October of 1989, is that correct?
A. Right.
Q. And you took that copy home with you?
A. Right.
Q. Did you tell Ms. Stoneking that you were
going to make a copy of this payroll ledger?
[226] A. No.
Q ,
with you?
Did you tell her you were taking a copy home
A. No.
Q. Did you tell any representative of the Banner
that you were making this copy?
144a
A, No.
Q . Did you tell anybody you were going to take
it home with you.?
A. I told no one.
Q . You showed it to you husband; correct?
A. That’s correct.
Q. And you showed it to your attorney; correct?
A. Yes, I have shown it to Mr. Terry.
A. Anybody else?
Q . No.
A. Did you show it to the EEOC?
A. No.
Q . Did you get this information off Ms.
Stoneking’s desk?
A. Ms. Stoneking gave it to me.
Q . She gave it to you?
A. Right.
Q . For what purpose?
A. She gave it to me to shred.
[227] Q. Excuse me?
A. She gave it to me to shred.
Q . She gave it to you to shred?
A. That’s correct.
Q.
it?
Before you shredded it, you made a copy of
A. That’s correct.
145a
Q. And you took it home?
A. I took it home.
Q. Without anybody’s knowledge?
A. I told no one.
Q. Do you think that you were authorized to
make a copy of this document and take it home?
A. Probably not, but I did it for my protection.
Q. You did it in September of 1989?
A. Approximately the fall in September or
October.
Q. You knew you weren’t authorized to do that,
didn’t you?
A. I did it for my protection.
Q. No, ma’am. You knew your were not
authorized to do that, didn’t you?
A MR. TERRY: That question has been asked
and answered.
MR. WAYLAND: No, it hasn’t been [228]
answered.
THE WITNESS: Did I know I was
authorized to do it?
Q. You knew you were not authorized to do it,
didn’t you?
MR. TERRY: To do what?
MR. WAYLAND: To make this copy of this
document and take it home.
MR. TERRY: We’ll stipulate that she was
not authorized. She was not authorized.
146a
THE WITNESS: No.
BY MR. WAYLAND:
Q. You were not authorized?
A. No.
Q, Did you copy any other payroll sheets other
than the two pages that are Exhibit 24?
A. I don’t think so. I think that was it.
Q. You may have; you just don’t recall?
A. I don’t recall at the moment. I don’t know.
Q. Exhibit 25 is entitled Nashville Banner
Publishing Company Profit and Loss Statement.
A. Yes.
Q. October 1989?
A. Yes.
[229] Q. And comparing to October 1988?
A. Right.
Q. This is also confidential information, is it not?
A. Yes.
Q. This is information that you had access to as
a result of your position as secretary to Ms. Stoneking?
A. Yes. Ms. Stoneking gave it to me.
Q. She gave you this document?
A. Yes.
Q. She gave this document to you to shred, didn’t
she?
A. Right.
147a
Q. Rather than shredding it, you made a copy of
it; correct?
A. And shredded it. I shredded it and make a
copy.
Q. You made a copy, and then you shredded
what she gave you?
A. Right.
Q. And you took the copy home with you?
A. Right.
Q. You see the word "dividends" is underlined
and then those circles. Is that your husband’s?
A. Yes.
[230] Q. Once again, you were not - you knew you
were not authorized to copy and take this document home,
didn’t you?
A. Yes.
Q. But you did it anyway?
A. Yes.
Q. You didn’t tell anybody at the Banner that you
did it, did you?
A. I told no one. No one knew it but my
husband and now Mr. Terry.
Q. Did you copy this document in approximately
October of 1989?
A. Approximately. I do not know the date, but
approximately.
Q. October or the first of November of 1989?
A. Approximately.
148a
MR. TERRY: Well, the date on the
document is October 30th, 1989.
BY MR. WAYLAND:
Q . So it was sometime after October 30, 1989?
date.
A. Yes, it had to be. I don’t know the specific
Q . Exhibit 26. Do you see that?
A. Yes.
Q. What is Exhibit 26?
[231] A.
contract.
That’s a memo from Eiise to Irby on { }’s
Q. { } meaning { }?
A. Yes.
Q. It’s a handwritten note to Mr. Simpkins from
Eiise McMillan?
A. That’s correct.
Q. Where did you get this copy?
A. That was in the personnel file in my office.
Q- Whose personnel file?
A. { }’s.
file?
Q. So you took this out of { }’s personnel
A. That’s correct.
Q. And you made a copy of it?
A. That’s correct.
Q. When did you do that?
149a
A.
23rd, 1989.
I’ve got to assume sometime after February
Q. Why do you assume that?
A. Because I believe this letter that you have as
Exhibit 27 goes with it because this had attachments to it.
Q. Exhibit 26 had attachments to it?
It had the letter to { }.A.
[232] Q.
given to {
It says, "Attached is a copy of the contract
A. Well, sorry. The contract is Exhibit 30, which
went along with this.
Q. Just a moment. Do you recall what was
attached to this Exhibit 26?
A. Yes. This had attachments, yes.
Q. But you don’t recall what it was?
A. To the best of my knowledge, I think Exhibit
26, 30, 27 and 28 all went together.
Q, You took all of those documents out of {
}’s personnel file?
A. That’s correct.
Q. And you made copies of them?
A. Right.
Q. Did you tell anybody you were making those
A. No.
Q. Then you took those copies home?
A. Right.
copies?
150a
Q. And you showed them to your husband?
A. Just my husband.
Q. And you showed them to Mr. Terry?
A. Mr. Terry; right.
Q. And all of those documents were taken
out of [233] { }’s personnel file and copied sometime
in the spring of 1989; is that correct?
A. No, it was later than that. They weren’t
copied at the time this was typed up, which would have
made it later than February 23rd. To the best of my
recollection, I think it was closer to August 1989. It wasn’t
done when this memo went out around February 23rd
because I had only transferred back where the personnel
files were in March when I started working for Ms.
Stoneking.
Q. Sometime around August of 1989 is when you
A. The way I recollect, it was several months
after the fact — after February 23rd.
Q. So sometime roughly in the summer of 1989
is when you took these documents out of { }’s
personnel file and mad a copy of them and took them
home?
A. Yes.
Q. And you knew you weren’t authorized to make
the copies and take those home, didn’t you?
A. Yes.
Q. Why did you do that?
A. For my protection. For insurance purposes.
Q. From what?
151a
A. I have begun to notice a subtle trend of [234]
harassment, so I decided that I might take these as
insurance.
Q. In the summer of 1989, you had --
A. Just a tinge of it.
Q. What did you -- give me specifically what
you’re relying upon to say that.
A. Well, I think the two hours sick leave
problem. The hair appointment was before that. Just
several little things that led me to believe --
Q. Well, tell me what they were. I want to know
what they were, Ms. McKennon.
A. We’ve already gone over those.
Q, Tell me what in the summer of 1989 —
MR. TERRY: Wait a minute. That ’s a
mischaracterization. She never said that she took - two of
the documents on their face had to be taken after
November.
MR. WAYLAND: Counsel, we’re talking
about the documents relating to { }. She’s testified she
took them out and copied them in the summer of 1989. If
you have an objection --
MR. TERRY: She said the earliest that could
have been was August.
MR. WAYLAND: If you have an objection,
make it. If not, quit coaching the witness.
* * *
[242] recall?
A. No, I do not think so.
Q. What insurance or protection do you think
152a
this gave you, Ms. McKennon?
A. Highly confidential information.
Q. What insurance or protection to you think this
highly confidential information gave you?
A. You never know.
Q. Tell me.
A. Highly confidential information. It’s just good
to have it.
Q. You took highly confidential information,
didn’t you?
A. Yes.
Q. And it was company information, wasn’t it?
A. Yes.
Q. And you had access to that information
because you were in a position of trust; isn’t that true?
A. Ms. Stoneking gave it to me.
Q. You were in a position of trust monitoring the
personnel files; isn’t that true?
A. That’s correct.
Q. And you took those documents out and copied
them and took them home with you; is that right?
A. That’s correct.
[243] Q. And you did it for your own benefit?
A. That’s right.
Q. And you did it even though you knew you
were not authorized do to it?
A. For my protection.
153a
Q. And you didn’t tell anybody you did it either,
did you?
A. I should say not.
Q. How is this highly confidential information
going to protect you, Ms. McKennon?
A. You never know. It’s always —
MR. TERRY: If you can think of any specific
thing --
THE WITNESS: I really can’t.
MR. TERRY: Then that’s it - I don’t know.
THE WITNESS: I don’t know.
BY MR. WAYLAND:
Q. Can you give me any specific reason why you
took this in the summer of 1989?
A. I’ve answered that for my protection.
Q. Give me any specific reason that you thought
this was going to protect you about -- was going to provide
protection to you in the summer of 1989.
A. When you see a trend of maybe harassment
* * *
[254] caught doing that you would be terminated?
A. Well, I would know that I’d be terminated had
I told anybody, but I did not tell anybody. They were safe
with me.
Q. Had you told anybody you had taken them
home?
A. No. No one knew but my husband.
Q. No, ma’am, that’s not my question. You knew
154a
that if the company determined --
MR. TERRY: Objection. There is absolutely
no way she could testify for what this company would do.
BY MR. WAYLAND:
Q. Did you understand that if the company, —
MR. TERRY: Same objection.
BY MR. WAYLAND:
Q. — Mr. Simpkins, had found out that you had
copied these documents and taken them home without
permission, these confidential documents, that he would
have terminate you?
A. No, I don’t know that.
MR. TERRY: Objection.
BY MR. WAYLAND:
Q. Did you understand that?
MR. TERRY: Calls for speculation.
THE WITNESS: No. You’ll have to ask
[255] Simpkins on that.
BY MR. WAYLAND:
Q. Yes, ma’am, I will. But I’m asking you what
you understood.
A. I understood that if I showed these documents
to anybody, I would have been terminated. But they were
safe.
Q. And you understood if you took them home,
you would have been terminated?
A. No, I really didn’t understand that because
they were safe in the house.
155a
Q. Ms, Stoneking.
MR. TERRY: Ms. McKennon.
THE WITNESS: They were not given to
anybody else.
BY MR. WAYLAND:
Q. Ms. McKennon. You’re right. Ms.
McKennon. Just so it’s clear, Ms. McKennon, it’s your
testimony that you thought you could take these confidential
documents, make copies of them, sneak them out of the
building, and that that wouldn’t put your job in jeopardy if
somebody at the company found out you had done that?
A. They were safe. Nobody —
Q. No, ma’am, that’s not my question. Would
you answer my question, please?