baffo v nyit - transcript june 11 and 12 2012

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

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

3 -------------------------------X ANTHONY BAFFO,

4 CV-10-1245 (LOW)

5 Plaintiff,

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6 -against-United States Courthouse Central Islip, New York

7 NEW YORK INSTITUTE OF TECHNOLOGY ROBERT RIZZUTO, in his official

8 and individual capacities; and : LEONARD AUBREY, in his official

9 And individual capacities, June 12, 2012

10 Defendants. 9:40 a.m.

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-------------------------------X TRANSCRIPT OF TRIAL

BEFORE THE HONORABLE LEONARD D. WEXLER UNITED STATES DISTRICT COURT JUDGE, and a jury.

14 APPEARANCES:

For the Plaintiff:

For the Defendants:

Official Court Reporter: Ph. (631) 712-6106 Fax (631) 712-6122

DOUGLAS H. WIGDOR, ESQ. MICHAEL J. WILLEMIN, ESQ. Thompson Wigdor 85 Fifth Avenue New York, New York 10003

DOUGLAS P. CATALANO, ESQ. NEIL G. SPARBER, ESQ. SAMANTHA BELTRE, ESQ. Fulbright & Jaworski 666 Fifth Avenue New York, New York 10103

Paul J. Lombardi, RMR, FCRR 100 Federal Plaza - Suite 1180 Central Islip, New York 11722

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25 Proceedings recorded by mechanical stenography.

Transcript produced by CAT.

Paul J. Lombardi. RMR. FCRR Official Court Reporter


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Summation - Mr. Wigdor

(Trial resumes.)

THE COURT: We are bringing the jury in.

MR. WIGDOR: I think we are waiting for

4 Mr. Catalano.

5 THE COURT: Okay.

6 Be seated.

7 (Whereupon, there was a pause in the

8 proceedings.)

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THE COURT: Okay.

Bring in the jury.

(Jury enters the courtroom.)

THE COURT: Be seated. We will now have the

14 summations.

15 Remember what I said about openings, the same

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16 thing applies to summations. What the lawyers say is not

17 evidence. The evidence is the documents, the testimony of

18 witnesses and what you believe is the evidence and the

19 truth.

20 Plaintiff goes first. Defendant goes second and

21 plaintiff gets a short rebuttal. I put limits on them.

22 Like everything else, we move it along.

23 Plaintiff, you are first.

24 MR. WIGDOR: Your Honor, opposing counsel,

25 Mr. Lombardi, ladies and gentlemen of the jury.




491

1 Since Mr. Catalano's opening statement, I have

2 been waiting a week to say three things.

3 First, Mr. Baffo is not a liar.

4 Second, the defendants did not bend over

5 backwards for Mr. Baffa.

6 Third, Mr. Rizzuto is not the victim in this

7 case. After trying to save someone who had just been hit

8 over the head with a bottle, and donating blood and

9 learning that he was HIV positive, and then confiding with

10 tears in his eyes in someone he thought was his friend and

11 ultimately been fired as a result, testified in this case

12 has shown that Mr. Baffo is the victim, the victim of

13 intentional discrimination, based upon his disability or

14 perceived disability. We have proven that Mr. Baffo's

15 disability and/or perceived disability was a motivating

16 factor that prompted the decision to fire him.

17 I want to thank you, the members of the jury,

18 for being attentive and for performing, on behalf of my

19 client, your civic duty as jurors. Let me say this, and I

20 don't say it lightly, Mr. Rizzuto is a liar, plain and

21 simple, and you have witnessed it firsthand. He can't be

22 trusted and his entire testimony cannot be trusted.

23 Defendants say that the reason that Mr. Baffo

24 was fired was to create two new jobs, mind you, one of the

25 jobs was never filled, the sales associate position. But,




492

1 first, Mr. Rizzuto outright lies in his sworn affidavit.

2 You will recall that's Exhibit 138, and in that affidavit

3 he signs it on the last page, he swears to it, to the

4 contents, and in this case you heard him say that it was

5 important that this affidavit, which was done just weeks

6 after the termination, that this affidavit should be

7 accurate and complete, and he swore to tell the truth as

8 to that.

9 But what you will see in the first substantive

10 paragraph trying to justify the termination, paragraph

11 seven, he says that in fiscal 2008, I gave Anthony control

12 of the de Seversky Center budget, and the center suffered

13 a $600,000 loss in that year. This is a false statement,

14 and he was asked at his deposition to explain how did you

15 come up with the $600,000? He said he didn't know.

16 Then he got up on this witness stand, took an

17 oath to tell the truth, and came up with some convoluted

18 answer that somehow in Exhibit 45 that clearly shows that

19 the year that he was in charge of the budget, 2008, there

20 was $150,000 profit, he tries to subtract these two

21 numbers between 2008 and 2009 and says that's how I came

22 up with the figure? The math doesn't even add up. And

23 that's not what he said in his deposition.

24 In his opening, Mr. Catalano said with respect

25 to the $600,000, that was wrong. That was a mistake. He




493

1 misread the financials. He lied, and he tried to lie to

2 make it look like Mr. Baffa was not performing well. He

3 lied in this affidavit.

4 And that's why we admitted Exhibit 45. This

5 Exhibit wasn't in the affidavit. There is no mention of

6 this in his affidavit. We also admitted Exhibit 46,

7 Exhibit 46 shows the financials in September 2008, and

8 2009, and October 2008 versus 2009, and these show that

9 things were moving up, the business was getting better.

10 Now, that wasn't the only lie. You will recall

11 that Mr. Rizzuto testified in this trial that he told

12 Mr. Baffo to write a memo. That's what he said, again,

13 under oath. He testified Exhibit 38 that he told

14 Mr. Baffo to write this memo about cost saving measures.

15 That's what he said.

16 You will recall that I took out his deposition

17 testimony and read it; did you ask Mr. Baffo to create it?

18 No. Not that I recall. I then asked him whether that was

19 a truthful answer. He said no. He's an admitted liar.

20 But he's not the only person that's lying.

21 Let's look at Mr. Aubrey. On direct examination I asked

22 Mr. Aubrey the following questions at page 453 --

23 actually, this was Mr. Catalano, sorry. He says at page

24 453 on direct:

25 Question: Now, on that morning did there come a




494

1 time that Mr. Rizzuto came to your office and, if so,

2 about what time?

3 Answer: I would say it was about -- Mr. Rizzuto

4 came to my office sometime 8 to 8:30 in the morning, in

5 that range.

6 Question: When he walked in, what did he say to

7 you?

8 Answer: He said he had a surprised look on his

9 face.

10 And then it goes on to say that's when he

11 disclosed that he was HIV positive. But then you will

12 recall cross-examination, page 459, I took out the

13 deposition transcript of Mr. Aubrey, and I read it:

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Question: Do you recall what he told you?

Answer: Only that Anthony was HIV positive.

Question: And do you recall how he told you?

Answer: No.

Question: Was it a phone call?

Answer: I don't recall, exactly.

Question: Did he tell you in person?

Answer: Again, as I answered the question, I

22 don't recall exactly.

23 So here you have a person at his deposition who

24 doesn't recall how he was told, then he comes up on the

25 witness stand, not only does he recall how he was told, he




495

1 recalls that Mr. Rizzuto had a shocked look on his face.

2 So you have two people who are lying.

3 Defense counsel said to you in his opening that

4 he was going to prove to you that there are four people,

5 four people in August decided they were going to terminate

6 Mr. Baffa. It cannot be disputed in this case there was

7 never a decision made in August. There was no decision

8 made in August and the affidavit in this case makes no

9 mention of any discussion between these four people in

10 August either. Don't you think that would have been in

11 the affidavit?

12 The termination was not recommended and

13 ultimately approved until well after October 2nd, well

14 after Mr. Baffa had disclosed that he was HIV positive.

15 And you will see those exhibits. Plaintiff Exhibit 13,

16 that's dated October 16, 2008. By the way, this whole

17 thing about backdated, it is backdated. It's dated 2008.

18 It's supposed to be 2009.

19 But this memo says it's a request. I would like

20 to move forward. It's a request. Exhibit 81, my

21 recommendation is to eliminate. This is October 20th.

22 Exhibit 78, October 20th. I recommend the following.

23 These are all after, after Mr. Baffa has disclosed that he

24 was HIV positive.

25 As for Ms. Visconti's testimony, you have




496

1 someone who owes their entire career to Mr. Rizzuto, from

2 waitress to director, and then testifies when I questioned

3 her that she didn't even help Mr. Rizzuto with respect to

4 the termination. I had to break out Exhibit 102 and

5 Exhibit EI. She was clearly involved in the termination.

6 As for Mr. Redlich, did you see his body

7 language? He didn't want to be here. He had to come in

8 and support his boss, the boss who gave him a $7,000

9 raise. He wouldn't budge on that one. He thought it was

10 5 or 6, I had to show it was $7,000. That was a lot of

11 money. That was a 12 percent raise, folks, in the year

12 that they fired Mr. Baffo.

13 Then I have to pull out of him that he had a

14 friend, he reached out to a friend who wanted the job, and

15 what does he do? This is well after October 2nd, after

16 the decision apparently had been made, and he forwards

17 that resume to Mr. Baffo. All of this is classic pretext.

18 You have witnessed the inconsistencies in the defendant's

19 case, the inconsistencies and the falsehoods in their

20 testimony and their failure to tell the truth.

21 Mr. Rizzuto admits he had a script when he fired

22 his former friend and it is clear that there is a script

23 here to try to justify the terminations. Fortunately, you

24 are the finders of fact and you are not wed to that

25 script.




497

1 And this is not surprising. There was no

2 training of any type of discrimination at this place, or

3 Mr. Rizzuto, no disability discrimination, no type of

4 training, no policy, nothing.

5 So what this case all really comes down to,

6 folks, is it more likely than not that Mr. Baffo told

7 Mr. Rizzuto on October 1st that he had received a call

8 from a doctor that he wanted to see regarding some tests?

9 Is it more likely than not that Mr. Baffo called

10 Mr. Rizzuto and left a voice mail saying he got some

11 disturbing news?

12 By the way, Mr. Rizzuto was never even asked by

13 his own lawyer whether that happened or not. Is it more

14 likely than not on October 2nd that Mr. Baffo told

15 Mr. Rizzuto that he was HIV positive? I would ask you to

16 use your common sense and to listen for the ring of truth.

17 This is someone whom he considered to be a friend, someone

18 whom he shared personal things with and Mr. Rizzuto shared

19 personal things with.

20 And now comes what I believe to be the two most

21 important pieces of evidence that prove by a preponderance

22 of the evidence that Mr. Baffo did disclose that he was

23 HIV positive on October 2nd, and I think you know what I'm

24 talking about. At page 397 of the trial transcript I was

25 cross-examining Mr. Rizzuto, you will recall:




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1 Question: Did you look for a memo that you said

2 you wrote -- strike that.

3 Page 397:

4 Question: Isn't it your testimony that on

5 October 23rd that was supposed to be the day that

6 Mr. Baffa was going to be fired, right?

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Answer: Correct.

Question: Yet, isn't it your testimony that

9 when Mr. Baffa told you he was HIV positive you told him

10 to take off as much time as he needed?

11 Answer: I think my words were close to it, was

12 take the time that you need to take care of yourself.

13 And then I had to get it out of him:

14 Question: Didn't you tell him that if he needed

15 time off or whatever he needed to do?

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Answer: I believe I did.

Question: So you told Mr. Baffa on the day you

18 were going to terminate him that he should take needed

19 time off.

20 Answer: I did.

21 This was on the day of the termination, and he's

22 telling Mr. Baffo to take needed time off, to take time

23 off. The only way that makes sense is if it happened on

24 October 2nd, and Mr. Baffa -- Mr. Rizzuto admits that at

25 page 349 when he met with Mr. Baffo on October 23rd that


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1 what was in his mind was that he was going to be

2 terminated a half hour later.

3 So the only way that makes sense is if that

4 conversation took place on October 2nd. And the other

5 piece of evidence that I believe is so important in this

6 case is Exhibit 125. Exhibit 125 is an e-mail from

7 Mr. Rizzuto to Maureen Gaughran, the HR person, copying

8 Mr. Baffa dated September 29th, just a couple of days

9 before Mr. Baffo says he's HIV positive.

10 According to Mr. Rizzuto the decision's already

11 been made to terminate him, but this is what he does, he

12 says, I wanted to ask if you can put out ads for the

13 dining room captain and the sales assistant. It has been

14 approved by president this week. Anthony's going on

15 vacation next week so you can forward to me. Anthony will

16 send you all the information.

17 So they want to say there's this reorganization

18 going on, the decision's already been made to terminate

19 Mr. Baffa, yet here you have an e-mail from Mr. Rizzuto to

20 HR talking about sending out resumes, and sending out job

21 descriptions about these jobs. HR's in the dark on this

22 reorganization? That makes absolutely no sense.

23 HR then replies to the e-mail saying that,

24 please confirm the dates that Anthony's going to be on

25 vacation so I can send you the postings during his absence




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1 and resume sending those to him when he returns. No

2 decision had been made as of September 29. This document

3 demonstrates that beyond any doubt.

4 Some of the defendants' arguments. They tried

5 to draw into question how Mr. Baffo contracted HIV. That

6 is downright offensive. There is no evidence in the

7 record to support any other contention in this case other

8 than the fact that Mr. Baffo contracted HIV when he came

9 to the aid of someone on the Circle Line. Hopefully they

10 will abandon that argument in their closing.

11 Performance? Come on. We saw many documents

12 after October 2nd that tried to purport to justify the

13 termination, the memos to HR, the memo to Len Aubrey, not

14 one of them, none of them mention anything to do with

15 Mr. Baffo's performance. That is a complete red herring.

16 Exhibit DJ, that's the September 1, 2009 memo,

17 not mentioned anywhere in Mr. Rizzuto's affidavit. So DJ

18 is that memo that he sent to Mr. Aubrey in code, okay, in

19 code. It doesn't mention Mr. Baffo. It doesn't mention

20 the general manager position.

21 Do you think for a second if it was what they

22 say it was, wouldn't it have been in Mr. Rizzuto's

23 affidavit that was filed in connection with the charged

24 discrimination just a few weeks later? Of course it

25 would. It's not what they say it is.




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1 And Mr. Catalano said and the reason why it was

2 written in code was because somebody might see it on the

3 computer, and so therefore he said that he's sitting next

4 to him. Suppose he leaves the computer to answer the

5 phone or runs out to answer a phone? Of course it doesn't

6 say it, he said. The problem with that is there is no

7 evidence in the case about that. He never even asked his

8 client about that.

9 So there's no evidence, and it makes no sense

10 because then we see the other memos, Exhibit 13, 81, 78,

11 they all mention Mr. Baffa, after October 2nd, of course,

12 but they all mention Mr. Baffa by name and the general

13 manager position and the request to eliminate that

14 position. So it makes no sense at all.

15 The other change is simply the addition of the

16 other position, the captain position which you will see in

17 Exhibit 63, September 3rd, 2009, and that's what it is.

18 Then, of course, we have all of these exhibits, 66, 67,

19 62, 63, they all talk about this new position's reporting

20 to Mr. Baffa, the job descriptions, the memo, the thing

21 they posted on Monster.Com as of September 22nd. So they

22 all show it reporting to Mr. Baffa. That makes no sense.

23 As for Exhibit CI, that's the e-mail that

24 Mr. Rizzuto sent to Ms. Jablonsky saying, oh, suddenly on

25 the 23rd Mr. Baffa came in and said he's HIV positive,




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1 that is -- I said it in my opening, I'll say it again

2 that is a CYA, we all know what that is, a CYA e-mail. He

3 knew there was the possibility he would spring this on

4 him, he was trying to CYA.

5 As for the contention in his opening

6 Mr. Catalano says the basis for Mr. Baffa disclosing not

7 on October 2nd, but October 23rd was this thing in Exhibit

8 44, the medical records which says I'd like to tell people

9 other than my family and friends about my HIV, other than

10 my family, other, that's the key, and he considered

11 Mr. Rizzuto a friend.

12 As for the increased severance, where's the

13 policy regarding asking everybody for a waiver? You will

14 see in Rizzuto's affidavit at paragraph 15, he tries to

15 take credit for the increased severance, yet another lie,

16 nothing to do with anything other than that Mr. Baffo

17 wouldn't waive his rights to get health care and

18 severance. He is a man of integrity and character. He

19 rejected the severance offer because he wanted his day in

20 court.

21 Now, I told you in my opening that there was no

22 smoking gun e-mail in this case. There is no e-mail that

23 says, yeah, we fired him because he's HIV positive.

24 That's not how you prove cases like this.

25 What we have proven are the lies, the




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1 inconsistencies and the denial of the fact that he

2 disclosed he was HIV positive on October 2nd. We have

3 proven by a preponderance of the evidence that Mr. Baffo's


5 factor that prompted the decision. All we are required to

6 do is to prove that his disability or perceived disability

7 was a motivating factor that moved them towards the

8 decision to terminate him, more likely than not. It's not

9 beyond a reasonable doubt. This isn't a criminal trial.

10 Just tip the scales ever so slightly in Mr. Baffo's favor.

11 Now, I have discussed liability and I realize

12 I'm going fast, but I have a time limit. I'd like to talk

13 to you about damages.

14 Economic damages are for the judge to decide.

15 That's not in your purview. Compensatory damages,

16 emotional distress and harm to him. You heard

17 uncontroverted testimony that the de Seversky Center was

18 Mr. Baffo's dream job. He had worked hard to become the

19 general manager. The place where he had worked with his

20 wife, his alma mater, a place where he fell in love with

21 his wife and rented it to have a private anniversary

22 dinner.

23 That was all stripped away from him when the

24 defendants unlawfully fired him. As a result, and you

25 will see this in the medical records, Exhibit 44,




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1 Mr. Baffo has been and continues to suffer from

2 depression, anxiety, feelings of failure, and fatigue. He

3 also told you about the shock, the feelings of failure to

4 himself, his family, his three children, and his feeling

5 of being worthless.

6 Now, an assistant store manager at Applebee's,

7 and while the defendants will try and say that the HIV is

8 to blame, you heard the testimony. Anthony and his wife

9 Laura, through the help of their faith and their family,

10 had come to grips with that.

11 The loss of his job, though, he could not cope

12 with. Even telling his wife maybe it would be better if I

13 wasn't around. That's one thing that Mr. Baffa did get

14 wrong. We would not be better off if he wasn't around.

15 As Father's Day approaches this weekend, Mr. Baffo's wife

16 and three young children would not be better off.

17 He should be considered a role model to them.

18 He is what we strive to be, a hardworking, dedicated,

19 honest human being who is sitting at that table because he

20 jumped to the aid of a woman who was bleeding, and now has

21 the courage to stand up for what is right.

22 Even when it looked as though everything had

23 gone horribly wrong, as the head of his household, he did

24 what was very difficult, he went out and got a job to

25 provide for his family. We'll never be able to undue what




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1 happened to him. Mr. Baffo will continue to live with the

2 emotional scars for the remainder of his life. You have

3 to look into your heart to determine what is right, the

4 right amount of money to award Mr. Baffo for the emotional

5 damage he suffered.

6 How do you tell a person how much their

7 self-respect is worth?

8 THE COURT: You have five minutes left in your

9 first summation.

10 MR. WIGDOR: Thank you.

11 What is a fair verdict for having put Mr. Baffo

12 through this?

13 This is a very serious injury, and deserving of

14 a very large award. The defendants stripped Mr. Baffo of

15 his self-esteem and made him feel like nothing. We are

16 not appealing to your emotions but intelligence and sense

17 of fundamental fairness.

18 How do you send a message to the defendants?

19 Every day when I would take a break I would walk the

20 hallways and look across out the windows, look across out

21 to the Atlantic and the Robert Moses bridge and think

22 about how can we send a message to make sure that other

23 employers don't do what they did to Mr. Baffo. How can we

24 punish them for what they did to Mr. Baffa?

25 You, the gentlemen of the jury, have the power



Summation - Mr. Catalano

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1 to send that message, the power to make change, and the

2 power to make sure that what happened to Mr. Baffo doesn't

3 happen to anyone else. $220 million in revenues, that was

4 what the testimony was in one year, that is a lot of

5 money, folks.

6 While you have sat silently for the last week,

7 and you have listened to the witnesses, the lawyers, and

8 the judge, you folks will have the last word. On behalf

9 of Mr. Baffa, I would request that your last word be a

10 verdict in his favor, an award of $3 million in

11 compensatory damages, and an award of $8 million in

12 punitive damages.

13 That $8 million may seem like a lot of money,

14 but that's less than 4 percent of their annual revenues in

15 one year. In order to send a message, in order for them

16 to be punished, I respectfully submit that is the only

17 amount that would do that. Is that even enough? I don't

18 know. I'll leave that to you. But, gentlemen of the

19 jury, your voice must be heard.

20 Thank you.

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THE COURT: Defendant.

MR. CATALANO: I told you in my opening that

23 there were absolutely no facts to indicate, infer or prove

24 that Mr. Baffa was terminated by NYIT by virtue of his

25 having discovered he had HIV on October 1.




507

1 You sat here for four days and you just heard

2 the summation, and I still haven't heard one fact. There

3 are none, because it didn't happen. There are no facts

4 whatsoever to even suggest that he was terminated because

5 he has HIV, let alone prove it by a fair preponderance of

6 the evidence.

7 I asked you to hold me to it what I said in my

8 opening, and here we are in summation, and I revert to

9 that original statement. What are the facts? There are

10 none.

11 What are facts? Rizzuto told Baffo, you know, I

12 can't have you around here with HIV. Never happened.

13 Somebody overheard Rizzuto, Rizzuto told someone else,

14 there was a conspiracy at sometime. None of that ever

15 surfaced because it's not true.

16 Not only do I ask you to look at the facts, look

17 at the testimony, take whatever you want into the jury

18 deliberation room, but I ask you to look at also the

19 inferences because this is important in most cases and

20 particularly in this one, look at the inferences to be

21 garnered from how people act, and that will prove the

22 point.

23 Essentially what Mr. Baffo is saying is, and he

24 doesn't dispute his poor performance, late -- well, isn't

25 everybody late? Did he speak to me, sitting next to me




508

1 repeatedly? Why is if Rizzuto is making up a story, why

2 is Rizzuto continuously and you will see the documents,

3 giving him memos?

4 Why, because he won't do the job. Why is he

5 telling Pilar Visconti in the summer, and she says to him,

6 well, you know, you are doing the job. So there it is.

7 He can't continue here, or whatever the words are.

8 Counsel is very good at massaging what people

9 say, and then throwing the word out lie. I'll show you

10 some lies in this case, but let's talk about the boat

11 incident. This one is stunning.

12 He learns on October 1 that he has HIV. His

13 wife has to get tested so he has to come home and tell her

14 how he got HIV. You have to go for the test. So what

15 does he come up with? A boat ride four years ago.

16 Who's the person? Where was the specialist, the

17 EMT trained person on the boat who took over? And perhaps

18 he was to the aid of the woman. How did the blood get in

19 his system three years ago? We'll get to three years ago,

20 two years ago, one year ago. How did it get in his

21 system? Why did it show up in October of '09? He made it

22 up, and counsel knew it was coming.

23 How about the trick that counsel attempted to

24 play on you, when he asked Pilar Visconti, did you talk to

25 the lawyer before you came in here today? Of course she




509

1 did, me. I spoke to her. What did I do, bring her in

2 here and get her up on the stand and say, you know

3 anything about this case? Absurd.

4 Of course lawyers talk to their witnesses

5 beforehand, and you will narrow what is going to be

6 explored with them and you tell them, tell the truth, and

7 that's what happened here. That was a trick to be played

8 on you, because he was hoping Visconti will say, well,

9 gee, was I supposed to talk to the lawyer before I got in

10 here today?

11 You learned in this trial three uncontroverted,

12 uncontradicted facts. You learned he got HIV on October

13 1. You learned that he performed poorly. Did you hear

14 anybody say he was performing well? You heard three

15 persons, his friends come in and say they liked him. They

16 thought it was a good manager.

17 Did you here Baffo say he was performing

18 exceptionally or well? How could you look at the

19 financials and come up with any other conclusion other

20 than Rizzuto should have terminated his services but for

21 the fact that he bent over backwards, that's the term,

22 bent over backwards for Baffo. He should have terminated

23 him a along time ago.

24 As Aubrey said, he didn't want to go use

25 students' hard-earned tuition or the parents' money to be




510

1 paying for the de Seversky Center. That was an important

2 feature in this case.

3 What Baffo is actually saying is I learned I had

4 HIV. He says he told Rizzuto on October 2, of course he

5 didn't and I'll show that to you in the documents, and you

6 can't fire me, and if you do, give me $11 million. Was

7 that what I just heard? 8 plus 3 or was it 8 plus 4?

8 I don't do the job. I have HIV pursuant to

9 cockamamie story and you are asking of the parents and the

10 students $12 million of the students' money because I

11 didn't do the job. That's what he's asking you and doing

12 tricks, did you talk to the lawyer before you came in here

13 today.

14 The judge will give you instructions. I know

15 you will apply the instructions to what you heard today.

16 Let's talk about how he learned that he had HIV.

17 Think about that. Who was this person? How did the blood

18 get in his system? Why does it show up three years ago?

19 Let's talk and I'll ask Ms. Beltre to show you documents.

20 He says that Evanov, he goes to Evanov -- that's

21 my circling, your Honor -- and you will see in the circle

22 there and I'm doing that for the convenience of the jury,

23 this is October 2, the day after he learns and it says one

24 year ago is circled, that's my handwriting. That's

25 October 2 he learns on October 1.




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1 But on October 1 he told Del Valle it was two

2 years ago, and that's PL 136. So he goes on October 1.

3 He tells Del Valle it was two years ago in the summer of

4 '07, right there I underlined it in the middle, two years

5 ago, that's my handwriting, October 1 he goes into

6 Del Valle, he has to tell him some story because he has to

7 tell his wife I have HIV. Why? Because you have to go

8 get tested.

9 So he comes up with the boat story. When was

10 the boat story? He says two years ago on October 1. What

11 does he say in the transcript? He gets home and he

12 realizes that's a mistake. It wasn't two years ago.

13 Why? Because his wife reminded him, Mrs. Baffa

14 reminded him it was three years ago. That's in the

15 transcript 141 1 lines 20 to 24. Now he's all set. He's

16 reminded it was three years ago, right? The night of

17 October 1 when he learns he has HIV and that's where he

18 says it down here.

19 When I came home, I was talking to my wife about

20 it, she said, no. That was in 2006. Okay. Two years ago

21 to Del Valle in the afternoon, comes home, now it's three

22 years ago, and he goes to see Evanov the next day after

23 learning from his wife it's three years ago and what does

24 he tell Evanov? It's one year ago. You just saw it

25 October 2. Put that back up there if you don't mind.




1 He doesn't know what to say because he's

2 flummoxed because he has to tell his wife something.

3 There it is. That's the next day. Two years, my wife

4 reminds me it's three years ago, next day it's one year

5 ago. He's making it up. And he's going to ask you for

6 $11 or $12 million, whatever the number was, because he

7 doesn't do his job.

8 How about the trauma, trauma. He had more

512

9 trauma losing his job at de Seversky Center than obtaining

10 the HIV virus. I talk about inferences. What inference

11 do you garner from that? Is that anywhere near plausible?

12 That's nutty.

13 How can you possibly say that? He's going to

14 specialists, therapists, support groups, because he got

15 dismissed from NYIT? No. Because he had the HIV virus,

16 and I must say, as a human being, I'm happy that he's able

17 to do his work and perform at Applebee's.

18 Now, his dream job at de Seversky Center, let's

19 talk about that. He left the de Seversky Center. Who

20 brought him back? Rizzuto brought him back. Where did he

21 work after he left de Seversky Center voluntarily in the

22 '90s?

23 He went to the Marriott, Restaurant Associates,

24 St. Francis, Paparazzi. He's working all over the place.

25 What about the dream job at NYIT? Why did he leave? He




513

1 has to come up with something so you can give him some

2 sort of money.

3 Backdating. Let's talk about the backdating.

4 He fell into the trap when he argued backdating.

5 Put up the October 16th document first, please.

6 Okay. Backdated. Counsel says this was

7 backdated and it's a typo it says '08. Ridiculous. It

8 says approval to eliminate the general manager's position.

9 What did Aubrey say? He says, we had to get the two

10 recruitment authorizations in place.

11 Rizzuto was out as he said in Central Islip,

12 here, excuse me, and because they are closing down the

13 facilities in Central Islip as far as dining and that's

14 why it couldn't take place until later and you will see

15 the September 1 memo. My words, the smoking memo that

16 proves it all. I don't know why I have to even refer to

17 that memo.

18 You had four people come in and say we all

19 discussed this and August -- said it was agreed upon in

20 August of 2009. What possible reason would Pilar

21 Visconti, she owes her whole professional life to Robert

22 Rizzuto. That means nobody can testify in any case

23 because they owe something to somebody. Come on.

24 Redlich, he didn't know, and neither did

25 Visconti know that he had HIV until after the fact that he




514

1 was terminated. When was this conspiracy entered into to

2 ask them to lie? Who would be goofy enough or stupid

3 enough to get four people together and then say we are

4 going to make this up?

5 That's what would have had to have happened if

6 that's to be believed. You can't make that story up. We

7 are going to fire him. We are going to make believe there

8 was a reorganization and put out backdated memos.

9 If I recall jury selection certain of you have

10 computer backgrounds. He walks in here, you can't walk in

11 the federal court and say I believe it was backdated.

12 Okay. Where's your expert who can look at the metadata to

13 prove that it was backdated? You see anybody in here?

14 You deserve better. The court deserves better.

15 I said Rizzuto and NYIT deserved better. You all deserved

16 better to have somebody walk in here and spend a week of

17 our time saying I have HIV, give me $12 million and I'm

18 going to say anything about anything and hope that it

19 sticks.

20 You can't walk in without facts. What are the

21 facts that indicate that he was terminated because he has

22 HIV? If you take the argument to its logical extension,

23 whether Rizzuto learned on October 2 or October 23 becomes

24 irrelevant because what he's saying is you can't ever fire

25 me thereafter because it must be because I have HIV.




515

1 That's what he's saying to you. I can never be fired. I

2 was fired. Give me $12 million.

3 Of course you can be fired. How does he know it

4 wasn't because he's Italian American, 39 years old, wears

5 a goatee, happens to be Caucasian? How does he know those

6 aren't the factors? Because he realized if you say HIV,

7 bingo, here we go. What are the facts that indicate he

8 was terminated because he has HIV? How does he know it

9 wasn't because of, which is the truth, his horrible

10 performance?

11 Why would Rizzuto fire him? He's got a woman

12 out -- excuse me again -- he's got a woman here who

13 happens to be deaf as a supervisor. He's got somebody

14 with herpes. He, himself, his son has multiple sclerosis,

15 who's the victim here? You bet it's Rizzuto.

16 He's a hardworking guy? Levittown where I grew

17 up, we called him a hardworking stiff. He makes good of

18 himself. Now he's the head of all the dining services

19 through the NYIT, Central Islip, Old Westbury and New York

20 City, running from pillar to post, he bends over backwards

21 for Baffo and he's told by Baffo, give me $12 million

22 because I got fired. He's saying I can never get fired,

23 no matter what I do, no matter how many memos.

24 You ever hear the supervisor sitting next to him

25 six, seven, eight memos in writing? Is that possible? He




516

1 admitted it. Anthony, what can I do to help you? Lying.

2 Rizzuto says that was a smoking gun. What he meant was it

3 was smoke and mirrors by Baffo to try to say that somebody

4 had complimented him. Sure, you can have a $50,000

5 wedding and spend $122,000 in costs to put on the wedding.

6 What's that got to do with it? That's what he told you.

7 This is unbelievable. The backdating I told

8 you, he says this is backdated. Now, I'm going to tell

9 you why he actually showed his -- pardon me -- lying hand.

10 He gets terminated on October 26th. So assume we are in

11 November 15th, and you are going to backdate the memo.

12 Now, he knows in his mind he told Rizzuto on

13 October 23, right, so he's over here. He knows he told

14 Rizzuto on October 23. So he says, okay. They put this

15 October 16th memo and backdated it to be in advance of the

16 date I told him. So I have to argue that the backdating

17 took place from November 1 to October 16th because I told

18 him, Rizzuto, on October 23.

19 Well, if you really told him on October 2 what

20 he would have had said was they backdated it to August

21 30th, July 15th. He betrayed himself. He betrayed the

22 fact that he's lying to you. Look at the timeline. Let's

23 talk about the timeline.

24 Here's what happens in this case. Pardon me if

25 it's a little obscure. He's hired in the left side in




517

1 '06. He's getting unsatisfactory annual performance

2 evaluations, '07-'08. He's getting another one in

3 September 1 -- September 19, 2009, and the four people

4 come in in August of 2009 and tell you, accurately, that

5 this was all discussed.

6 He attempts to use the recruitment

7 authorizations as a sword rather than a shield. But it

8 makes sense. He's not going to terminate Baffo and the

9 September 1 memo will come up in a second, until October 1

10

11

12

13

14

and it takes time to hire people. You are not going to

lay off Baff o and now Redlich is going to use his services

and now you don't have a salesperson. So you have to get

the salesperson geared up.

So that's why you had a dining room

15 authorization and a sales position being solicited and of

16 course you are not going to say report -- whom are you

17 going to say report to? Baffo's still employed until

18 October 23. What are you going to do, say report to

19 Redlich who will soon be replacing Baffa? That all makes

20 sense.

21 Okay. Backdated. I said to him, page 201,

22 lines 20, 22, backdated he's talking about the

23 inconsistencies of Rizzuto? He says, why didn't you put

24 this in an affidavit, two-page affidavit? We are here

25 four days going over facts. How many hundreds of pages of




518

1 trial transcript are there? You are going to put it all

2 in an affidavit? That's more smoke and mirrors to try and

3 trick you. He doesn't put it in there.

4 Here. You have any facts to indicate this was

5 backdated? No. That means he commenced this lawsuit,

6 came in and told you it was backdated and he has

7 absolutely no support.

8 The courts and you and Rizzuto and NYIT deserve

9 better. You can't walk into the federal court with

10 nothing to say and hope that you give him $12 million, or

11 is it $11?

12 October 2 or 22 -- put up DJ, please. He says

13 this doesn't refer to Baffa. Of course it does. It says,

14 this is part of the reorganization, give Eric more support

15 in the area of sales as he gets repositioned.

16 Repositioned to what? He's going to take over a portion

17 of Baffo's job. This is September 1.

18 Backdated? There are no facts to indicate.

19 Where's your metadata expert to come in and show this was

20 backdated and not written on September 1? There it is in

21 a nutshell and it confirms what all those four witnesses

22 said. He wasn't doing the job. They get together.

23 Rizzuto is bending over backwards for two years, two

24 unsatisfactory performance evaluations, numerous

25 documents, and here it is.




519

1 And my goal is to bring in and make the change

2 we spoke of October 1, reorganization of the management

3 staff. What reorganization took place other than Baffo

4 being terminated and Redlich taking over his duties? Here

5 it is in a nutshell.

6 And, the last paragraph is, we are going to do

7 these two dining room position and the sales associate,

8 yes. They didn't hire a sales associate because Redlich

9 says, I can do it. It's not going to suffer so much. So

10 we saved some money.

11 But on the other hand, the last paragraph shows

12 that money he was earning, the $76,000, $79,000, whatever

13 the testimony is going to be used to replace this and he's

14 working at Applebee's. You are going to give him $11

15 million because he's able to work at Applebee's?

16 There's nothing I don't think with this

17 gentleman other than regrettably he has HIV and I'm

18 sympathetic to it. October 2, October 23, it doesn't

19 matter, but frankly it was October 23 that he told him.

20 Now, if you wouldn't mind, put up

21 Plaintiff Exhibit 12.

22 Allegedly he walks in there on October 2 and he

23 tells Rizzuto, oh, I have HIV. Now, this is his friend.

24 Now, here at 5 o'clock, Rizzuto, not surprisingly, is

25 telling him, where are you going? You didn't finish the




520

1 job and you are going to Italy?

2 You think he would have said that if he had just

3 been told and his testimony is he said take it easy, do

4 whatever you have to do. He didn't hear anything on

5 October 2 from him. All he knew as usual he was going

6 away, not doing the job and he writes to him at 5:09

7 saying, what? You are not coming back? Would anybody

8 provide that kind of response after being informed he had

9 HIV? Of course not. He didn't hear it on October 2.

10 Look at what happens on October 23 -- it's CI,

11 pl ease.

12 Here's Carol Jablonsky just joined. She knows

13 there is going to be a termination on October 23, and then

14 he learns that early in the morning at 8 o'clock, 8:30,

15 whenever it was that Baffa comes in, he tells him. Now

16 what does he do? He calls her and she says, tell me what

17 this is all about, and there it is, October 23.

18 Why, if he knew on October 2, would he possibly

19 send this e-mail? It would be impossible. He learned on

20 October 23, and he tells human resources and Carol just

21 got there, a week ago. That's what that memo says. He

22 wasn't feeling well. He came in today and said he had HIV

23 and needed to start treatment.

24 Was this part of the conspiracy? Did the four

25 of them get Carol Jablonsky who just joined and say I am




521

1 going to make up a story and I'm going to send an e-mail

2 even though I learned on October 2nd, I'm going to send

3 you an e-mail? Of course not. This is when it happened,

4 on October 23.

5 If that's not sufficient he writes to Redlich,

6 AH, he says the thing I spoke to you about is not

7 happening right away, or today at all. Redlich knew he

8 was going to be terminated. Why? He's going to take over

9 the position.

10 He knew it was going to happen that day and he

11 writes and he just said, he didn't tell him that he had

12 HIV. He said it's not going to happen today, because he

13 walked in. He says I have HIV, and they have to regroup.

14 What are they going to do?

15 I'll tell you what they did, and this is further

16 proof this happened on October 23.

17 Plaintiff Exhibit 49, the first page.

18 Here's what they did, here it is on Monday, what

19 did they do? They ripped up the $6,663 and the health

20 care they were going to pay for him through March 31, and

21 because he had HIV, not only did they not hurt him, or

22 take things away from him, or fire him, they gave him

23 another $14,000, and they gave him health care, no small

24 item, until August 31, 2010.

25 That's what they gave him on Monday, and it's




522

1 stipulated they were going to give him $6,600, plus health

2 care until March 31st and now they change it and now they

3 give him $20,000 and health care until August 31. Why?

4 Because 180 degrees different than what he's telling you

5 they felt sorry for him, or humanitarian gesture, whatever

6 words you want, they had no problem with Baffo as a human

7 being. They liked him.

8 So they said, oh, my. You know, we'll give him

9 more money, and there it is. Those three -- two e-mails

10 and that fact prove that this occurred on October 23.

11 What's the other proof by plaintiff?

12 Backdating, oops. I can't prove that. He said so. Hand

13 sanitizers, yeah, I argued there were hand sanitizers

14 because I found them when I got back from Italy. Hand

15 sanitizers were all throughout the university. He knew

16 it.

17 What did he say to me? All right, I'll give you

18 that one. You see that? You see how flippant that

19 response was. I'll throw four, five, six, seven concepts

20 out there and see if anything sticks with the jury.

21 That's insulting to you more so than to me.

22 A conspiracy. When were the discussions? Who

23 was involved? What was said? Why October 26th? Why did

24 they go through? Was it part of the formulation to come

25 up with all of this documentation on October 23? That was




1 part of the plan?

2

3

THE COURT: You have five minutes left.

MR. CATALANO: The documents, you saw the

4 financials, the financials are startling.

5 For the year 2007-2008, there was $150,000

6 profit and, yes, a gigantic loss when put down at the

7 bottom, and 8-9, it was $667,000, okay. Rizzuto made a

8 mistake. Big deal. Does that prove that he performed

523

9 well, that he was terminated because of the HIV? He came

10 in here and he intentionally lied to you, made up stuff.

11 FJ is the -- I showed you FJ, pardon me.

12 The three witnesses, nice people. What did they

13 say? We liked him as a boss. Your friend? Yeah. Okay.

14 Fine. Rizzuto said, frankly, and we are delighted he had

15 friends, and Rizzuto said that was probably one of the

16 issues, not with respect to those three people. But he

17 didn't direct the workforce.

18 Who's Rizzuto? Rizzuto is a hardworking man who

19 employs people of all ages, races, colors, creeds,

20 national origins, disabilities or not, who suffered his

21 own life challenges, who is a friend of Baffa.

22 Who's Baffo? Someone who conceded he's late.

23 Everyone's late. Someone who admits that Robert tried to

24 better his performance. Someone who said, maybe I don't

25 want to be great.




524

1 Here's Robert saying, how about this book, Good

2 to Great and he said it was a tough read. That just shows

3 you Rizzuto. He's a hardworking guy. A tough read, so he

4 gives it to him. Redlich says, yeah, he's giving books

5 all the time. What did Baffo say? Maybe I don't want to

6 be great.

7 Here it is in final, Judge, and I'm done. 253.

8 I asked him, do you have any facts to indicate whatsoever

9 that you were discriminated against, this is lines 23 to

10 25, down at the bottom, and to the next page:

11 So in summation is it fair to say you have no

12 facts, and then it goes on and lines 9 through 14:

13 The fabrication of all those documents and

14 e-mail that occurred after I told Robert, and he had to

15 scurry to cover the fact that he no longer wanted to work

16 with me because I was HIV positive. Those are the facts.

17 Some of those documents that are up there.

18 He says his whole case is backdated. That's

19 what he said. What did he say about backdating? Take a

20 look at 201, lines 20 to 22 with respect to the most

21 important document, one of the two, October 16th. He says

22 fabrication of documents is his case.

23 Now, I asked him, do you have any facts to

24 indicate that the October 16th memo is not backdated? No.

25 No. So he came in here, made up a story, made up a story



Rebuttal Summation - Mr. Wigdor

525

1 how he got the HIV. There is no fact. He was not

2 terminated. He was terminated because of the

3 reorganization stemming from his poor performance.

4 There was eight times the profit in 9-10 on

5 Exhibit FU, $1 .2 million, versus the time that he was in

6 charge of the expenses and revenue $150,000. That's

7 $1 million difference, eight times the profit that doesn't

8 have to come out of the hardworking parents, or can be

9 scholarships to students at NYIT.

10 This case is nonsensical. I am quite sure that

11 you will review the facts and listen to the judge's

12 testimony and all I excuse me -- instructions -- and

13 what I can tell you is that I have said repeatedly, there

14 is nothing in this case other than his hope that you give

15 him big money because he didn't do the job.

16

17 Honor?

18

19

20

21

22

MR. WIGDOR: Can we turn on the lights, your

THE COURT: Yes.

MR. WIGDOR: Thank you.

May I proceed?

THE COURT: Go ahead.

MR. WIGDOR: I guess we are not going to hear

23 why Mr. Rizzuto lied in his affidavit.

24 I guess we are not going to hear why he lied in

25 his deposition about telling Mr. Baffa to write the memo




526

1 that ends up saving the money. I guess we are not going

2 to hear about why Mr. Aubrey lied under oath in his

3 deposition when he said he didn't recall and then he comes

4 into court and then says, now I recall the shock on his

5 face on October 23rd.

6 You know, we have heard that there are no facts

7 to support this case. We have heard that many, many times

8 from defense counsel. He knows better. There are -- the

9 way he would have it, folks, is that in order to prove a

10 case, Mr. Rizzuto would have to get on the stand and admit

11 it, and say, yes. I discriminated against him, or, yes, I

12 considered the HIV, or there has to be an e-mail that says

13 that.

14 That's now how these cases work. The facts have

15 been clear in this case. There have been inconsistencies.

16 There have been lies under oath. Their positions don't

17 make sense because, again, just go back and read that

18 affidavit which was a couple weeks after the termination.

19 There's nothing about these purported -- the purported

20 agreement in August between Mr. Redlich, Mr. Rizzuto,

21 Ms. Visconti and Mr. Aubrey. There's nothing in there

22 about them.

23 That's because it didn't happen. What's going

24 on here is let's come into trial and put our best case

25 forward. Now, it's interesting because it seems from the




527

1 closing argument that the reason for the termination now

2 is all about performance. It sounds like they have done

3 away with the reorganization. I mean, that's what it

4 seemed like in the closing.

5 It says -- I think he said the truth is he was

6 fired because of his performance. It's very interesting,

7 very interesting because Exhibits 13, which is the

8 contemporaneous memo, says nothing about performance.

9 Exhibit 81, and we know Mr. Rizzuto can write, we saw a

10 lot of writing, a lot of bullet points, there's nothing

11 about performance, and Exhibit 78, there's nothing about

12 performance.

13 So what they are trying to do is try to shift

14 things, shift things away. I'm not going to take pot

15 shots at opposing counsel, and let me just say that he

16 spent about ten minutes in -- the first ten minutes of his

17 opening trying to say that Mr. Baffo did not get HIV the

18 way he has testified.

19 First of all, the judge is going to tell you

20 that HIV is a disability. So in some respects it's

21 irrelevant how he got HIV, in all respects. Then he said

22 where's the police officer or the first aid person? He

23 could have done all that. He could subpoena the Circle

24 Line. He could subpoena the first aid people. He could

25 have questioned Mr. Baffa at his deposition on those




1 subjects. He could have done all that.

2 And then he could have laid out and actually

3 could have had a basis to lay out in front of you that

4 what Mr. Baffo is saying is untrue. He chose not to do

528

5 that. Instead, he just tries to create this doubt about

6 how he contracted HIV, to try and make it look like, you

7 know, maybe he's gay or intravenous drug user or he's

8 cheating on his wife. There's no evidence to that and

9 it's reprehensible.

10 Now, the backdated, well, he talked about

11 Exhibit DJ. The whole thing was about Exhibit 13. That

12 was the exhibit I just showed you, Plaintiff Exhibit 13,

13 and like I said, it is dated 2008, so I'm not really sure

14 what that is.

15 As for the severance, now he tried to say they

16 showed this compassion to increase the amount of money

17 they were going to give him in severance. If there was

18 some true compassion why didn't they just give him the

19 health care in a time of need? What they tried to do is

20 give him a little more because they knew what was going

21 on.

22 Where is Ms. Jablonsky, by the way? She's the

23 HR person. Did she testify? Did they call her? No.

24 They increased it, but they wanted him to sign that

25 severance offer that would waive his right to be here.




529

1 He didn't take the money and the health care.

2 He wanted to be here. He wanted to prove his case, and he

3 wanted you to decide his fate.

4 The hand sanitizers? You know, I think

5 Mr. Baffo said I'll give you the benefit of the doubt.

6 That's what he said, and did we ever see any policy

7 regarding any written policy about hand sanitizers had to

8 go into the de Seversky Center upon his return from

9 vacation? It's a bit curious, I have got to say.

10 So, ladies and gentlemen, I would ask that you

11 look at all -- gentlemen, I'm used to saying that, but you

12 are all gentlemen, excuse me gentlemen of the jury, I

13 would ask you to look at all of the evidence. I admit

14 there's no, and I said it from the beginning, there is no

15 e-mail that admits he was terminated because he was HIV

16 positive. It doesn't happen.

17

18

19

But look at all of the inconsistencies --

THE COURT: You have to come to a conclusion.

MR. WIGDOR: Look at all the lies and I would

20 ask that you return a verdict in Mr. Baffo's favor.

21

22

Thank you. Thank you, your Honor.

THE COURT: We'll take a ten-minute break and

23 then I'll give you the law, which will take me about 12

24 minutes.

25 We'll take a short break, about ten minutes.




1 Don't discuss the case. Don't form an opinion.

2

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6

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8

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See you in about ten minutes.

(Jury leaves the courtroom.)

(Recess.)

(Continued on next page.)


530


Court's Charge

1 THE COURT: All right.

2 Bring the jury in.


4 proceedings.)

5

6

7


THE COURT: Be seated.

8 Now that the evidence in the case has been

531

9 presented and the attorneys for the parties have concluded

10 their closing arguments, it's my responsibility to

11 instruct you as to the law that governs this case. My

12 instructions will be in three parts.

13 First, I'll give you instructions regarding the

14 general rules that define and govern the duties of a jury

15 in a civil case.

16 Second, I will instruct you as to the legal

17 elements of the causes of action relevant to this case.

18 And, third, general instructions regarding your

19 deliberations.

20 It is your responsibility and your duty to find

21 the facts from all the evidence in this case. You are the

22 sole judges of the facts, not counsel, not myself. I want

23 to impress upon you again the importance of that role. It

24 is for you and you alone to pass upon the weight of the

25 evidence, to resolve such conflicts as may have appeared



Court's Charge

532

1 in the evidence and to draw such inferences as you deem to

2 be reasonable and warranted from the evidence, or the lack

3 of evidence. With respect to any question concerning the

4 facts, it is your recollection of the evidence and yours

5 alone that controls.

6 Parties are equal before the court. This case

7 should be considered and decided by you as an action

8 between parties of equal standing in the community. All

9 persons, corporations or entities stand equal before the

10 law, and are to be dealt with as equals in this court.

11 All parties from entitled to equal consideration.

12 No party is entitled to sympathy or favor. You

13 must judge the facts and apply the law as I shall instruct

14 you without bias, prejudice or sympathy to either the

15 plaintiff or the defendants.

16 Burden of proof.

17 In a civil case such as this, the plaintiff has

18 the burden of proving the essential elements of his claims

19 against the defendants by a preponderance of the evidence.

20 To establish a claim by the preponderance of the evidence

21 means simply to prove that something is more likely. A

22 preponderance of the evidence means the greater part of

23 the evidence.

24 That does not mean the greater number of

25 witnesses or the greater length of time taken by either



Court's Charge

533

1 side. The phrase preponderance of the evidence refers to

2 the quality of the evidence, the weight and effect it has

3 on your minds.

4 If the plaintiff is to win, the evidence that

5 supports his claim must appeal to you as more nearly

6 representing what took place than the evidence opposed to

7 his claim. To put it differently, if you put plaintiff's

8 and defendants' evidence on opposite sides of the scale,

9 plaintiff would have to make the scales tip somewhat

10 slightly on his side. If the evidence weighs so evenly

11 that you are unable to say there is a preponderance on

12 either side, then you must resolve it in defendants'

13 favor.

14 To recapitulate briefly, the preponderance of

15 the evidence means such evidence as when considered and

16 compared with that opposed to it produces in your mind a

17 belief that what is sought to be proved is more likely the

18 case than not the case.

19 The evidence upon which you are to decide what

20 the facts are comes in several performance, sworn

21 testimony of witnesses, both on direct and

22 cross-examination, and regardless of who called them,

23 exhibits that the court has received into evidence, and

24 facts to which the lawyers have agreed or stipulated.

25 Certain things are not evidence, and are to be



Court's Charge

534

1 disregarded in deciding what the facts are. Again,

2 statements and arguments by lawyers are not evidence,

3 objections to questions are not evidence, testimony that

4 has been excluded or stricken is to be disregarded,

5 anything you may have seen or heard outside the courtroom

6 is not evidence.

7 In deciding what testimony to believe.

8 In deciding what the facts are, you must

9 consider all the evidence that has been offered. In doing

10 this you must decide which testimony to believe and which

11 testimony not to believe. In making that decision there

12 are a number of factors you may take into account

13 including the following, the witness's opportunity to

14 observe the events he or she described, the witness's

15 intelligence and memory, the witness's manner while

16 testifying, does the witness have an interest in the

17 outcome of the case? Does the witness have any bias or

18 prejudice concerning any part of the matter involved in

19 this case? The reasonableness of the witness's testimony,

20 considered in the light of all the evidence in the case.

21 In considering the testimony of the plaintiff or

22 the defendants, you must apply the same standards as you

23 apply to any other witness. If you find that a witness's

24 testimony is contradicted by what that witness has said or

25 done at another time, or by testimony of other witnesses,



Court's Charge

535

1 you may disbelieve all or any part of the witness's

2 testimony.

3 But in deciding whether or not to believe the

4 witness, keep this in mind. People sometimes forget

5 things. A contradiction may be an innocence lapse of

6 memory, or it may be an intentional falsehood. Consider,

7 therefore, whether it has to do with an important fact or

8 only a small detail. Different people observing the same

9 event may remember it differently and, therefore, testify

10 about it differently.

11 You may consider these factors in deciding how

12 much weight to give to the testimony. You are not to give

13 any greater weight or credence to a witness solely because

14 of his or her title or position.

15 We now go to the law portion of this case.

16 Plaintiff claims that he was unlawfully

17 terminated from his employment with NYIT because of his

18 disability in violation of the federal Americans with

19 Disability Act which I call the ADA and the state human

20 rights law. It is unlawful for an employer to

21 intentionally discriminate against an individual with a

22 disability because of that person's disability.

23 Plaintiff claims that defendants intentionally

24 discriminated against him by terminating him because he

25 had HIV. There are two defendants, NYIT and Robert



Court's Charge

536

1 Rizzuto. Plaintiff claims under the ADA applies only to

2 NYIT, and his claim under the state human rights law

3 applies to both defendants.

4 You must consider each of the defendants

5 separately in reaching a verdict so as to each of them.

6 Many of the same standards applies to the ADA and the

7 state human rights law claims. Accordingly, whenever

8 possible, the plaintiff's ADA and state human rights law

9 claims will be addressed together. This means certain

10 jury instructions will apply to both laws. However, there

11 are also some important differences between these laws

12 that I will discuss.

13 If you find that the plaintiff has prevailed

14 specifically on his claim for discrimination under the

15 state human rights law, you must then determine whether

16 Rizzuto can be held liable as an aider and abetter of that

17 discrimination. You will be asked to determine liability

18 separately according to the standards that I will give you

19 in these instructions.

20 Under the law having HIV is a disability. For

21 plaintiffs to prove discrimination, he must prove:

22 1. That they actually knew that he had HIV, or

23 they perceived that he had HIV.

24 2. That his disability was a motivating factor

25 that prompted the decision to terminate him.



Court's Charge

537

1 Motivating factor.

2 Plaintiff must prove that his disability or

3 perceived disability was a motivating factor that prompted

4 the decision to terminate him. Plaintiff need not show

5 that his disability or perceived disability was the sole

6 or exclusive reason for his employment decision. Instead,

7 it is sufficient that it was a motivating factor that

8 moved defendant towards the decision to terminate him.

9 On the other hand, if you find that the decision

10 to terminate plaintiff was based solely upon other

11 reasons, right or wrong, fair or unfair, other than his

12 disability or perceived disability, then you must find in

13 defendants' favor. In that case, you must not second

14 guess defendants' decision or permit any sympathy for the

15 plaintiff to lead you to substitute your judgment for that

16 of defendant, even though you personally may not approve

17 of the action taken and would have acted differently under

18 the circumstances.

19 Employer's judgment.

20 The law allows an employer to decide to

21 terminate an employee for any reason or no reason. But it

22 may not do so for a discriminatory reason. The decision

23 to terminate may be for a good reason, a bad reason or no

24 reason at all, so long as the decision was not motivated

25 by the unlawful discrimination.



Court's Charge

538

1 Therefore, plaintiff must show more than the

2 defendant made an unwise decision or acted arbitrarily.

3 Good faith or negligent errors in an employer's judgment

4 are not, standing alone, evidence of unlawful

5 discrimination. If you find that defendants' decision to

6 terminate plaintiff was because of reasons other than his

7 disability or perceived disability, you must find in

8 defendants' favor.

9 Only if you find that defendant was motivated,

10 at least in part, by the disability or perceived

11 disability, can you find in plaintiff's favor.

12 Corporation acts through its employees.

13 Defendant NYIT is a corporation. As a

14 corporation, you can only act through the acts of its

15 employees. I instruct you that the corporation is

16 responsible for the acts of its employees that are made

17 while acting within the scope of their duties as

18 employees.

19 I instruct you that Rizzuto, as director of

20 dining services for the NYIT, acted on behalf of NYIT.

21 Liability of individual defendants under the

22 state human rights law.

23 Plaintiff has alleged that Rizzuto is

24 individually liable under the state human rights law for

25 discriminating against him based on his disability or



Court's Charge

539

1 perceived disability. An individual defendant can be

2 liable for aiding and abetting in discrimination if he

3 actually participated in the conduct that gives rise to

4 the discrimination.

5 Plaintiff cannot establish aiding and abetting

6 claim unless you have already determined that plaintiff's

7 disability or perceived disability was a motivating factor

8 in his termination. If you determine that plaintiff's


10 in his termination, and that Rizzuto actually participated

11 in the discriminatory conduct, then you must find him

12 individually liable for aiding and abetting in violation

13 of the state human rights law.

14 Damages.

15 My charge to you on the law of damages must not

16 be taken as a suggestion that you should find for

17 plaintiff. It is for you to decide on the evidence

18 presented and the rules of law I have given you whether

19 the plaintiff is entitled to recover from the defendants.

20 If you decide that plaintiff is not entitled to recover,

21 you need not consider damages. Only if you decide that

22 plaintiff is entitled to recover will you consider the

23 measure of damages.

24 Importantly, you are not to consider damages for

25 lost or past or future wages. Those matters are for the



Court's Charge

540

1 court to decide. The type of damages you are to consider

2 are compensatory damages, one, punitive damages, two, and,

3 three, nominal damages.

4 Compensatory damages.

5 If you find that plaintiff is entitled to a

6 verdict, an award of damages must be reasonable. You may

7 award plaintiff only such damages as would reasonably

8 compensate him for such injury. You are not permitted to

9 award speculative damages. You are not to include in any

10 verdict compensatory or prospective loss which, although

11 possible, is not reasonably certain to occur in the

12 future.

13 If you decide that plaintiff is entitled to an

14 award of damages you may consider emotional pain and

15 suffering and mental anguish. As instructed, you may not

16 consider lost earnings or past or future wages. That is

17 for the court to decide, if you find for the plaintiff.

18 Nominal damages.

19 If you find for plaintiff but you find that

20 plaintiff has failed to prove damages, you may award

21 nominal damages. Nominal damages may not exceed $1.

22 Punitive damages.

23 Award of punitive damages is a remedy that may

24 be considered by you only if you find in plaintiff's

25 favor. Punitive damages can be awarded to plaintiff only



Court's Charge

541

1 if you find that NYIT violated the ADA. If you find for

2 plaintiff and if you award compensatory or nominal

3 damages, you may, but are not required, to award punitive

4 damages.

5 The purpose of punitive damages is to punish a

6 defendant for committing similar acts in the future and to

7 deter others from similar wrongful conduct in the future.

8 Plaintiff has the burden of proving punitive damages.

9 Punitive damages are appropriate only if you find that

10 defendants' conduct was malicious or in reckless disregard

11 of plaintiff's rights.

12 Conduct is malicious if it is accompanied by ill

13 will or spite, or if for the purposes of injuring another.

14 If you find that punitive damages are appropriate, you

15 must use reason in setting the amount. Punitive damages

16 must bear a reasonable relationship to plaintiff's actual

17 damages. Punitive damages, if any, should be an amount

18 sufficient to fulfill their purposes, but should not

19 reflect bias, prejudice or sympathy toward any of the

20 parties.

21 We now come to the conclusion, which is very

22 short.

23 I remind you once again it's your responsibility

24 to judge the facts in this case from the evidence admitted

25 during the trial, and to apply the law as I have just



Court's Charge

542

1 given it to you. Your decision should include rational

2 discussion of the evidence in this case by all of you. So

3 now I'm saying, discuss the case amongst yourselves.

4 In your deliberations you are entitled to your

5 own opinion, but you should exchange views with your

6 fellow jurors and listen carefully to each other. While

7 you should not hesitate to change your opinion if you are

8 convinced another opinion is correct, your decision must

9 be your own. If plaintiff has failed to establish any

10 essential element of his claim by a preponderance of the

11 evidence, your sworn duty is to find for the defendants.

12 Of course, if he's carried his burden as to his

13 claim, and established every essential element of those

14 claims by a preponderance of the evidence, your sworn duty

15 is to find for him a sum of money which will fairly and

16 justly compensate him.

17 If you wish to have some of the testimony

18 repeated, you may make such a request. I'll bring you

19 into court and have the court reporter read those portions

20 you desire to hear. If you wish to have some portions of

21 these instructions repeated, you may make that request.

22 Either can be accomplished by giving a note to the clerk.

23 If it becomes necessary during your

24 deliberations to communicate with me for any reason, send

25 a note through the clerk. No communication with the court



Court's Charge

543

1 except by a writing. The court will not communicate with

2 any member on the jury on any subject touching on the

3 merits of the case other than by writing or orally here in

4 open court.

5 Don't reveal to any person, not even to the

6 court, how you stand numerically or otherwise on the

7 merits of the case until you all have agreed upon a

8 verdict. What I'm saying there is, when you send a note

9 in, regardless of what you are saying, don't tell me how

10 you stand, whether it's 4 to 4, 7 to 1, I'm not supposed

11 to know, and not that I'm not supposed to know, the

12 lawyers are not supposed to know, and any note you send me

13 I have to give to them. I'll get to another point with

14 notes in a few minutes.

15 Any verdict you reach must be unanimous. That

16 means all of you have to agree. Your decision on each

17 element has to be unanimous, and the total has to be

18 unanimous.

19 Your oath sums up your duty, that you will

20 without fear or favor to any persons conscientiously truly

21 try the issues before you according to the evidence given

22 to you in open court.

23 Now what I do is I ask for a sidebar because I

24 read you my charge, that's the law, and the lawyers have a

25 copy. In case I left out a word or read it wrong, they



Court's Charge

1 will tell me.

2 Sidebar.

3 (Continued on next page.)

4

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544


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Court's Charge

(Sidebar.)

MR. WIGDOR: You read it perfectly, Judge.

THE COURT: Okay.

MR. WIGDOR: It's fine.

MR. CATALANO: No problems.

THE COURT: Go back.

(Sidebar concluded.)



545


Court's Charge

546

(In open court.)

THE COURT: I read it correctly.

1

2

3 Now let me tell you what we are going to do. We

4 are going to get all the evidence together. Whether you

5 have seen it or not it's immaterial. It's all going back

6 to you, so you will get all the evidence.

7 Not only that, the law I read to you I'm going

8 to send you back copies. So you will have it because it's

9 confusing. There is no question about it. You will all

10

11

12

13

14

get a copy so you can go over it. If you have any

confusion on that, you can ask for a note.

If you send me a note, say this was an accident

case and you say, what did witness A say the color of the

light was, we are having a little confusion? I can show

15 the note to the lawyers and I can write the witness said

16 the color of the light was red and send it right back.

17 Sometimes you want to hear testimony and you

18 don't know what you want, but you want to get a flavor of

19 what the witness was saying. I don't care which witness

20 it is. If you ask for witness B, I have to bring you out

21 and the court reporter will read back the testimony. When

22 he starts reading, you are not compelled to listen to

23 everything on direct, cross, redirect, recross.

24 If you all agree you get to a point you heard

25 enough, stop the reading. I don't punish your for asking



Court's Charge

547

1 for readbacks. And how do I know you are satisfied? When

2 I see you looking around at each other, is that enough?

3 Is that enough? And everybody is shaking your head. I

4 will ask you do you all agree you have heard enough? If

5 you say yes, you can go back and you continue

6 deliberating.

7 Let's see if I covered all the points. Oh, very

8 important. The first thing you have to do is appoint a

9 foreperson -- a foreman -- normally I say a foreperson.

10 This is the first time I had an all male jury. You have

11 to appoint someone. That person only gets one vote. He

12 doesn't get any more money or any better food. So

13 immediately appoint a foreperson.

14 He will be in charge, though, because I'm going

15 to send back a verdict sheet. The verdict sheet will tell

16 you what to decide first and how to follow after you

17 answer yes or no. The verdict sheet is very important.

18 It's a road map for you to follow.

19 So it makes it easier. I will send back a

20 number of verdict sheets. You will all have it and I will

21 send back all the evidence, and the first thing you have

22 to do is appoint a foreperson and start your

23 deliberations.

24 Lunch is coming at 12. So I'm going to send you

25 back. Start your deliberations. We will get you a



Court's Charge

548

1 verdict sheet and get you the evidence and we will get you

2 the law and it will all come back to you.

3 Start deliberating.

4 (Jury commences deliberations at 11:30 a.m.)

5

6

7

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10

11

12

13

14

15

16

17

THE COURT: Have you all seen the verdict sheet?

MR. WIGDOR: We haven't, your Honor.

THE COURT: You haven't?

MR. WIGDOR: No.

MR. CATALANO: We saw a draft.

MR. WIGDOR: We didn't see a draft.

We haven't seen anything.

THE COURT: How about the evidence?

MR. WIGDOR: The evidence is set.

THE COURT: You are sure?

MR. WIGDOR: You have seen it, right?

MR. CATALANO: Yes.

THE COURT: Everybody examined it because I have

18 had many a time where the wrong stuff goes in.

19 It's too important. I will check where the

20 verdict sheet is. You can be seated.


22 proceedings.)

23 MR. WIGDOR: No objections to the verdict sheet,

24 either side.

25 THE COURT: How about the defendant?



1

2

3

4

Court's Charge

MR. WIGDOR: Neither side.

MR. SPARBER: No objections, your Honor.

THE COURT: Okay.

I am sending in the charge and the verdict

549

5 sheet. I understand you all accept it, but if you want to

6 look at what's going back again before I send it back.

7

8

MR. WIGDOR: Everything is fine, your Honor.

THE COURT: The only thing we haven't sent in is

9 the evidence.

10 We are waiting for that.

11

12

MR. WIGDOR: We have it here, your Honor.

THE COURT: If so, and you have it, we'll send

13 it all back.

14

15

MR. WIGDOR: Here, your Honor.

THE COURT: Thank you.

16 Lunch comes at 12, so as soon as we hear about a

17 verdict, tell Joe where you are.

18 MR. WIGDOR: Your Honor, just for the record,

19 can I say on behalf of my team and I'm sure Mr. Catalano

20 joins me, it's been a privilege to appear before you.

21 Some might think I'm a glutton for punishment

22 appearing before you two jury trials in the span of six

23 weeks, but it was a pleasure.

24 MR. CATALANO: Finally he added the word

25 pleasure, Judge, which I was going to add.



1

2

550

THE COURT: Good.

MR. CATALANO: You have been very courteous and

3 we appreciate it.

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(Recess while jury deliberates.)



1

2

(Jury enters the courtroom at 3:40 p.m.)


3 We have a note from the jury marked Court

4 Exhibit No. 4, we have reached a verdict.

5 I will have the clerk take the verdict.

THE CLERK: Mr. Foreman please rise.

Has the jury reached a verdict? Yes or no?

JURY FOREPERSON: Yes.

551

6

7

8

9 THE CLERK: Please refer to the verdict sheet.

10 Question No. 1. Did plaintiff prove that NYIT

11 intentionally discriminated against him based on a

12 disability that was a motivating factor in NYIT's decision

13 to terminate him?

14 Yes or no?

15

16


THE CLERK: Question No. 2. Did plaintiff prove

17 that NYIT intentionally discriminated against him based on

18 a perceived disability that was a motivating factor in

19 NYIT's decision to terminate him?

20 Yes or no?

21

22

JURY FOREPERSON: No.


23 that defendant Rizzuto is liable for intentionally aiding

24 and abetting in the discrimination proven against NYIT by

25 actually participating in the conduct giving rise to the



552

1 discrimination?

2 Yes or no?

JURY FOREPERSON: No. 3

4 THE CLERK: Question No. 4. In what amount if

5 any has plaintiff proven that he is entitled to damages.

6 A. Compensatory damages.

7

8

9 NYIT.

JURY FOREPERSON: The amount of $100,000.

THE CLERK: 4C, punitive damages, as against

10 In what amount?

11

12

13

JURY FOREPERSON: In the amount of $1 ,250,000.

THE COURT: Poll the jury.

THE CLERK: Be seated.

14 Gentlemen of the jury, as the court has received

15 your verdict you say you find in favor of the plaintiff as

16 to compensatory damages in the amount of $100,000.

17

18

19

20

21

22

23

24

25

verdict?

verdict?

As to punitive damages against NYIT, $1,250,000.

Juror number 1 I is that your verdict?

JUROR NO. 1 : Yes.

THE CLERK: Juror number 2, is that your

JUROR NO. 2: Yes.


JUROR NO. 3: Yes.



553

1 THE CLERK: Juror number 4, is that your

2 verdict?

3 JUROR NO. 4: Yes.


5 verdict?

6 JUROR NO. 5: Yes.


8 verdict?

9 JUROR NO. 6: Yes.


11 verdict?

12 JUROR NO. 7: Yes.


14 verdict?


16 THE CLERK: And so say you all, yes?

17 ALL JURORS: Yes.

18 THE CLERK: Jury polled, Judge.

19 I • 11 take this.

20 THE COURT: I wi 11 thank the jury and you are

21 excused, but don't leave.

22 Wait until I come back. I will talk to you, but

23 you are relieved of your duties as jurors. Please wait

24 for me.

25 (Jury leaves the courtroom at 3:45 p.m.)

Paul J. Lombardi . RMR. FCRR Official Court Reporter


1

2

554

THE COURT: Motions.

MR. CATALANO: Judge, we'd like to make a motion

3 obviously for judgment notwithstanding the verdict.

4 Would you like it on paper?

5

6

THE COURT: Yes.

MR. WIGDOR: Your Honor, I think before that's

7 done, we have the issue of economic damages that we

8 have --

9

10

11

THE COURT: I'll let that go first.

MR. WIGDOR: Okay.

THE COURT: How much time do you want to make

12 your motion?

MR. CATALANO: Two weeks, your Honor. 13

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THE COURT: How much time do you want to reply?

MR. WIGDOR: Two weeks is fine, your Honor.

direct

them.

THE COURT: Okay.

The court's in recess.

MR. WIGDOR: Thank you, your Honor.

MR. CATALANO: Thank you.

THE COURT: The students come on back.

By the way, since motions are pending, I

the jurors not to talk to you and you don't

MR. WIGDOR: Okay.

THE COURT: Because it's still pending.


wi 11

talk to


1

2

3

4

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MR. WIGDOR:. Yes, your Honor

MR. CATALANO: Yes, your Honor

(The matter concluded.)


555


1

$ 138 [11-492:2 1------------1 14[1] - 524:12

$1 [1] - 540:21 $1,250,D00121- 552:11,

552:17 $100,000 [21- 552:7, 552:16 $11 [4] - 510:6, 512:6,

518:11, 519:14 $12 [6] - 510:10, 512:6,

514:17, 515:2, 515:21, 518:10

$122,0DD [11- 516:5 $14,0DD [11- 521 :23 $150,000 [31- 492:20, 523:5,

525:6 $2D,ODD [11- 522:3 $220 [1] - 506:3 $50,000111- 516:4 $6,800 [1] - 522: 1 $6,663 [1]- 521 :19 $600,0DD [31- 492:13,

492:15, 492:25 $667 ,ODD [11 - 523:7 $7,000 [2]- 496:8, 496:10 $76,0DD [11- 519:12 $79,0DD [11- 519:12

'D6 [11 - 517:1 'D7 [11- 511:4 '07-'08 [1] - 517:2 'DB [11- 513:7 '09 [11- 508:21 '9Ds [1] - 512:22

141[11-511:15 15 [1] - 502:14 15th [2] - 516:11, 516:21 16 [1] - 495:16 16th [5] - 513:5, 516:15,

516:17, 524:21, 524:24 18D [11- 522:4 19 [1] - 517:3 1st [1] - 497:7

2 2116] - 510:4, 510:23,

510:25, 511 :25, 514:23, 516:19, 518:12, 519:18, 519:22, 520:5, 520:9, 520:18, 536:24, 551:16, 552:20, 552:22

2D [3J - 511 :15, 517:22, 524:20

2DD8 [1] - 511 :20 2DD7-2DD8111 - 523:5 2DDB [8]-492:11, 492:19,

492:21, 493:7. 493:8, 495:16, 495:17, 528:13

2DD9 [9] - 492:21, 493:8, 495:18, 500:16, 501:17, 513:20, 517:3, 517:4

2D1[21-517:21, 524:20 2D1D [1] - 521 :24 2D12 [1] - 489:9 20th [2] - 495:21, 495:22 22 [3J - 517:22, 518:12,

524:20 22nd 111- 501:21

1-----------1 23 [16] - 514:23, 516:13, 1 124] - 500: 16, 506:25,

1

508:12, 509:13, 510:25, 516:14, 516:18, 517:18, 511 :1, 511 :2, 511:5, 519:18, 519:19, 520:10, 511 :10, 511 :17, 513:15, 520:13, 520:17, 520:20, 516:17, 517:3, 517:9, 521:4, 521:16, 522:10,

518:17, 518:20, 519:2, 522:25• 524:9

525:7, 536:22, 543:10, 23rd [5]-498:5, 498:25, 551:10, 552:18, 552:19 501:25, 502:7, 526:5

1.2 [11- 525:5 24[1] - 511 :15 1DD [1] - 489:23 25 [1] - 524:10 1D003 [1] - 489:17 253111- 524:7 1 D103 [1] - 489:21 28th [2] - 516: 10, 522:23 102 [1] - 496:4 29 [1] - 500:2 11722 [1] - 489:23 29th [1] - 499:8 1180 [11 _489:23 2nd [111- 495:13, 496:15, 11 :3D 111 - 548:4 497: 14, 497:23, 498:24,

12 [6] - 489:9, 496:11, 499:4, 500:12, 501:11,

519:21, 529:23, 547:24, 5o2:7• 503:2• 521=2

31 [3J - 521:20, 521:24, 522:3 31st111- 522:2 349 [1] -498:25 38 [1] - 493:13 39 [1] - 515:4 397 [2] - 497:24, 498:3 3:40 [1] - 551:1 3:45 [1] - 553:25

A a.m [2J - 489: 10, 548:4 abandon [11 - 500:10

abetteri11- 536:16 abetting [41 - 539:2, 539:5,

539:12, 551:24 able [3]- 504:25, 512:16,

519:15 3rd [1]- 501:17 absence [11 - 499:25

-----4-----i absolutely131 - 499:22,

506:23, 518:7 418]- 506:14, 510:7, 543:10,

551 :4, 552:4, 553:1, 553:3 44 [2] - 502:8, 503:25 45 [2] - 492:18, 493:4 453 [2] - 493:22, 493:24 459 [1] - 494:12

absurd [11 - 509:3

accept 111 - 549:5 accident [11- 546:12 accompanied [11 - 541: 12 accomplished [11 - 542:22 according [3] - 499:10,

46 [2] - 493:6, 493:7 49[1]-521:17 4C 111 - 552:8

536:18, 543:21 accordingly [11 - 536:7 account 111 - 534: 12

t-----------i accurate [11-492:7 accurataly[1J- 517:4

---------..... Act111- 535:19 514)-496:10, 519:24, 553:4,

5

553:6 act 121- 507:21, 538:14 5:09 [11 _520:6 acted 131- 537:17, 538:2,

538:20

6 acting 111-538:17 ,____ ________ __, action 131-531:17, 532:7,

6131-496:10, 553:7, 553:9 537:17 82 [1J - 501:19 acts [41- 538:12, 538:14, 63 [2] - 501:17, 501:19 538:16, 541:6 631 [21 - 489:23, 489:23 actual 111 - 541: 16 66 [11- 501:18 ADA[61- 535:19, 536:1, 666 [1] - 489:20 536:6, 536:8, 541 :1 67 [11 - 501: 18 add [2] - 492:22, 549:25

----------i added 111-549:24

7 addition [11 - 501 :15 ,____ ________ __, addreaaad [11- 536:9

7131-

543=10

• 553

=10

• 553

=12

admit[2] - 526:10, 529:13 712-6106 [1] - 489:23 712-6122 [11

_ 489:23 admits 141 - 496:21, 498:24,

78 [3J - 495:22, 501: 10, 523

=23

• 529

: 15

527: 11

admitted 151 - 493:4, 493:6, 493:19, 516:1, 541:24

ads [11 - 499: 12

1-------8-----1 advance 111- 516:15 8181 - 494:4, 506: 11, 506:13,

510:7, 520:14, 553:13, 553:15

8-8 [1] - 523:7 81 [3J - 495:20, 501: 10, 527:9 85 [1] - 489:16

affidavit [17] - 492: 1, 492:2, 492:5, 492:6, 493:3, 493:5, 493:6, 495:8, 495:11, 500:17, 500:23, 502:14, 517:24, 518:2, 525:23, 526:18

8:3D [2] - 494:4, 520:14 afternoon [11 - 511 :21

----------i ages111-523:19

9 549:16

125 [2] - 499:6 13 [5] -495:15, 501:10,

527:7, 528: 11, 528: 12 136[1]-511:2

9111-524:12 t------------1 9-10111- 525:4

3 [5)- 506:10, 510:7, 551:22, 9:40111- 489:10

3

ago [221- 508:15, 508:19, 508:20, 509:23, 510:18, 510:24, 511 :2, 511 :3, 511:5, 511:10, 511:12, 511:14, 511:16, 511:20, 552:23, 552:25

30th [1] - 516:21 511 :22, 511 :23, 511 :24,


2

512:4, 512:5, 520:21 appropriate [21 - 541 :9, 518:23 beyond [2] - 500:3, 503:9 agree [3J - 543:16, 546:24, 541:14 bad [11 - 537:23 bias [3]- 532:14, 534:17,

547:4 approval [11 - 513:8 Baffo [71J - 491:3, 491 :5, 541:19 agreed [3]- 513:19, 533:24, approve [11- 537:16 491: 12, 491 :23, 493:2, big [2] - 523:8, 525: 15

543:7 approved l2l - 495: 13, 493:12, 493:14, 493:17, bingo [11- 515:7 agreement [11 - 526:20 499:14 495:6, 495:14, 495:23, bit 111 - 529:9 AH [11 - 521 :6 arbitrarily [11 - 538:2 496:12, 496:17, 497:6, blame [11 - 504:8 ahead [1J - 525:21 area111- 518:15 497:9, 497:14, 497:22, bleeding [11 - 504:20 aid 151 - 500:9, 504:20, argue 111 - 516: 16 498:6, 498:9, 498:17, blood [3J - 491:8, 508:18,

508:18, 527:22, 527:24 argued [2] - 513:4, 522:13 498:22, 498:24, 498:25, 510:17 alder[1J - 536:16 argument[3(- 500:10, 499:8, 499:9, 499:19, boat[51- 508:10, 508:15, aiding [41 - 539:2, 539:5, 514:22, 527:1 500:5, 500:8, 500:19, 508:17, 511:9, 511:10

539:12, 551:23 argumenta [3] - 500:4, 501:11, 501:12, 501:20, body [1] - 496:6 ALL [11- 553:17 531:10, 534:2 501 :22, 501 :25, 502:6, book 111 - 524: 1 alleged 111 - 538:23 assistant 121 - 499: 13, 504:6 502:16, 504:1, 504:13, booka 111 - 524:4 allegedly [11 - 519:22 a880Ciate [31 - 491 :25, 505: 1, 505:4, 505: 11, bon 131 - 496:8, 523: 13 allows 111 - 537:20 519:7, 519:8 505:14, 505:23, 505:24, bottle [11 - 491 :8 alma 111 - 503:20 Associates 111 - 512:23 506:2, 506:9, 506:24, bottom 121 - 523:7, 524:10 alone [4] - 507:5, 531 :24, aaaume111-516:10 507:11, 507:23, 509:17, break [41 - 496:4, 505: 19,

532:5, 538:4 Atlanlic[11- 505:21 509:22, 510:3, 511:13, 529:22, 529:25 American 111- 515:4 attempted [11 - 508:23 515:21, 516:3, 517:8, bridge [11 - 505:21 Americans 111 - 535: 18 attempts 111 - 517:6

517:11, 517:19, 518:13, briefly (1] - 533:14 amount 110J - 505:4, 506: 17, attentive [11- 491 :18

519:3, 520:15, 522:6, bring [SJ - 490: 11, 509: 1,

528:16, 541:15, 541:17, attorneys [11 - 531 :9 523:21, 523:22, 524:5,

519:1, 531:2, 542:18, 552:4, 552:7, 552:10, Aubrey (9] - 493:21, 493:22,

525:25, 527:17, 527:25, 546:20

552:11, 552:16 494:13, 500:13, 500:18, 528:4, 529:5

bringing 111 - 490:2 anguish 111 - 540: 15 509:24, 513:9, 526:2, BAFFO 111 - 489:3

brought l2l - 512:20 anniversary111- 503:21 526:21

Baffo'a 191 - 491: 14, 500: 15, budge [11-496:9

annual [2] - 506:14, 517:1 AUBREY [11 - 489:8 503:3, 503:10, 503:18,

budget [2] - 492:12, 492:19 504:15, 517:17, 518:17,

Answer 1101 - 494:3, 494:8, August [111- 495:5, 495:7, 529:20

bullet [11 - 527: 10 494:15, 494:17, 494:19, 495:8, 495:10, 513:19,

baaed [51-491:13, 537:10, burden 141- 532:16, 532:18, 494:21, 498:7, 498:11, 513:20, 516:20, 517:4,

538:25, 551:11, 551:17 541:8, 542:12 498:16, 498:20 521 :24, 522:3, 526:20

basis [2] - 502:6, 528:3 business 111- 493:9 answer151- 492:18, 493:19, authorization [II- 517:15

501 :4, 501 :5, 547:17 authorizations [2] - 513: 10, bear[11- 541:16 c answered 111- 494:21 517:7

become [11- 503:18

ANTHONY [11 - 489:3 Avenue 121 - 489: 16, 489:20 becomes 121- 514:23, cannot [31 - 491 :22, 495:6,

Anthony1s1- 492:11, award 1121 - 505:4, 505:14, 542:23 539:5

494:15, 499:15, 504:8, 506: 10, 506: 11, 540:6, BEFORE [11- 489:12 capacities [2] - 489:8, 489:9

516:1 540:7, 540:9, 540:14, beforehand 111 - 509:5 captain [2] -499:13, 501:16

Anthony's [2] - 499:14, 540:20, 540:23, 541 :2, beginning [11-529:14 care191-498:12, 502:17,

499:24 541:3 behalf 141- 491: 18, 506:8, 521 :20, 521 :23, 522:2,

anxlety[11- 504:2 awarded [11 - 540:25 538:20, 549: 19 522:3, 528:19, 529:1,

appeal 111 - 533:5 belief[11- 533:17 546:19

appealing [11- 505:16 B Beltre [11- 510:19 career111- 496:1

appear [11 - 549:20 BELTRE 111 - 489: 19 carefully [11 - 542:6

APPEARANCES [11 - 489:14 backdate [11- 516:11 bend 111 - 491 :4 Carol [3] - 520:12, 520:20,

appeared 111 - 531 :25 backdated [191 - 495:17, bending [11 - 518:23 520:25

appearing [11 - 549:22 513:6, 513:7, 514:8, bends 111 - 515:20 carried [11- 542:12

Applebee'• [41 - 504:6, 514:11, 514:13, 516:8, benefit 111 - 529:5 case[47] -491:7,491:11,

512:17, 519:14, 519:15 516:15, 516:20, 517:21, bent [2] - 509:21, 509:22 492:4, 495:6, 495:8,

applies [41- 490:16, 536:1, 517:22, 518:5, 518:6, beat [11 - 526:24 496:19, 497:5, 499:6,

536:3, 536:6 518:18, 518:20, 524:18, bet (1] - 515: 15 500:7, 501:7, 502:22,

apply[&J- 510:15, 532:13, 524:24, 528: 10 betrayed [2] - 516:21 508:10, 509:3, 510:2,

534:22, 534:23, 536: 10, backdating [7] - 513:3, batter1121 - 493:9, 504:12, 513:22, 516:24, 524: 18,

541:25 513:4, 516:7, 516:16, 504:14, 504:16, 514:14, 524:22, 525:10, 525:14,

appoint141-547:8, 547:11, 522:12, 524:19 514:15, 514:16, 518:9, 526:7, 526:10, 526:15,

547:13, 547:22 backgrounds 111- 514:10 523:24, 526:8, 547:12 526:24, 529:2, 530:1,

appreciate 111 - 550:3 backward• [5] - 491 :5, between [5] - 492:21, 495:9, 531:8, 531:11, 531:15,

approaches 111 - 504: 15 509:21, 509:22, 515:20, 526:20, 532:8, 536:11 531:17, 531:21, 532:6,


3

532:17, 533:18, 534:17, 552:23, 553: 1, 553:4, 539:22, 539:24, 540: 1, 549:3, 549:8, 549:12, 534:19, 534:20, 535:15, 553:7, 553:10, 553:13, 540:14, 540:16 549:15, 550:1, 550:4, 537:13, 541:24, 542:2, 553:16, 553:18 consideration 111 - 532: 11 551 :2, 552: 12, 553:20, 542:3, 543:3, 543:7, clerk [3] - 542:22, 542:25, considered 181 - 497: 17, 554: 1, 554:5, 554:9, 543:25, 546: 13 551:5 502:10, 504:17, 526:12, 554:11, 554:14, 554:16,

cases 131 - 502:24, 507: 19, client [2] - 491 : 19, 501 :8 532:7, 533:15, 534:20, 554:20, 554:25 526:14 clou 111 - 498:11 540:24 Court [2] - 489:22, 551 :3

CAT 111 - 489:25 closing [5J - 500:10, 513:12, considering 111- 534:21 court120J- 502:20, 514:11, CATALANO 1121 - 489:18, 527:1, 527:4, 531 :10 conspiracy[4J- 507:14, 514:14, 518:9, 526:4,

506:22, 523:3, 545:5, cockamamie 111- 510:9 514:1, 520:24, 522:22 532:6, 532: 1 o, 533:23, 548:9, 548: 16, 549:24, code [3J - 500:18, 500:19, contemporaneous 111 - 540:1, 540:17, 542:19, 550:2, 554:2, 554:13, 501:2 527:8 542:25, 543: 1, 543:4, 554:19, 555:2 color121 - 546:13, 546:16 contention [2] - 500:7, 502:5 543:6, 543:22, 546:1,

Catalano [6J - 490:4, 492:24, colors 111 - 523: 19 contents 111 - 492:4 546:21, 552: 14 493:23, 501 : 1, 502:6, coming [3J - 508:22, 520:7, continue [3] - 505: 1, 508:7, court's 111- 554:17 549:19 547:24 547:5 courteous 111 - 550:2

Catalano's 111 - 491 : 1 commenced 111 - 518:5 Continued [3J - 530:5, 544:3, Courthouse 111 - 489:5 Caucasian 111- 515:5 commences 111 - 548:4 545:8 courtroom [6] - 490:12, causes 111- 531:17 committing 111 - 541 :6 continues 111- 504:1 530:3, 531:6, 534:5, 551:1, Canter1a1- 492:12, 503:17, common 111- 497:16 continuously 111 - 508:2 553:25

510:1, 512:9, 512:18, communicate [2] - 542:24, contracted [31 - 500:5, courts 111 - 518:8 512:19, 512:21, 529:8 543:1 500:8, 528:6 cover111- 524:15

center 111 - 492: 12 communlcaUon 111 - 542:25 contradicted 111 - 534:24 covered 111- 547:7 Central 15J - 489:6, 489:23, community 111 - 532:8 contradiction 111 - 535:5 create [3J - 491:24, 493:17,

513:11, 513:13, 515:19 compared 111- 533:16 control 111 - 492: 11 528:5 certain 141- 514:9, 533:25, compassion 121 - 528: 16, controls 111 - 532:5 cradenca111- 535:13

536:9, 540: 11 528:18 convenience 111- 510:22 credit 111 - 502: 15 challenges 111 - 523:21 compelled 111 - 546:22 conversation 111 - 499:4 creeds 111 - 523: 19 change 15J - 501 :15, 506:1, compensate [2] - 540:8, convinced 111 - 542:8 crlmlnal 111 - 503:9

519:1, 522:2, 542:7 542:16 convoluted 111 - 492: 17 cross [4]-494:12, 497:25, charactar111- 502:18 compensatory[8J- 503:15, cope 111- 504:11 533:22, 546:23 charge l8l - 492: 19, 525:6, 506: 11, 540:2, 540:4, copies 111 - 546:8 cross-examination 121 -

539:15, 543:24, 547:14, 540:10, 541:2, 552:6, copy 121 - 543:25, 546: 1 O 494:12, 533:22 549:4 552:16 copying 111 - 499:7 cross-examining 111 -

charged 111 - 500:23 complete121-492:7, 500:15 corporation [41 - 538: 12, 497:25 cheating 111 - 528:8 complimented 111-516:4 538:13, 538:14, 538:15 curious 111 - 529:9 check111- 548:19 computer [31 - 501 :3, 501 :4, corporations 111 - 532:9 CV-10-1245111- 489:4 chlldran 121 - 504:4, 504: 16 514:10 correct 121 - 498:7, 542:8 CYA[3J - 502:2, 502:4 chose 111 - 528:4 conceded 111 - 523:22 correctly 111 - 546:2 Cl 121 - 501 :23, 520: 1 O concepts 111 - 522: 19 cost111-493:14 D clrcla 111- 510:21 concerning [2] - 532:3, costs 111- 516:5 damage 111 - 505:5 Circle [2] - 500:9, 527:23 534:18 counsel [9] - 490:24, 495:3, damages [411- 503:13, circled 111 - 510:24 concluded 131- 531 :9, 545:7, 508:8, 508:22, 508:23, 503:14, 503:15, 506:11, circling 111- 510:21 555:3 513:6, 526:8, 527:15, 506:12, 539:14, 539:15, circumstances 111- 537:18 conclusion [3]- 509:19, 531:22 539:21, 539:23, 539:24, City 111 - 515:20 529:18, 541:21 couple [2] - 499:8, 526: 18 540: 1, 540:2, 540:3, 540:4, civic 111- 491 :19 conduct [6] - 539:3, 539: 11, couraga111- 504:21 540:6, 540:7, 540:9, clvll [2] - 531 :15, 532:17 541:7, 541:10, 541:12, course 1131 - 500:24, 501 :5, 540:14, 540:18, 540:20, clalm [BJ - 532:20, 533:5, 551:25 501 : 11, 501:18, 508:25, 540:21, 540:22, 540:23,

533:7, 536:2, 536:14, confiding 111 - 491 :9 509:4, 510:4, 515:3, 540:25, 541:3, 541:4, 539:6, 542:10, 542:13 confirm 111 - 499:24 517:16, 518:13, 520:9, 541:5, 541:8, 541:9,

claims [7] - 532:18, 535:16, confirms 111 - 518:21 521 :3, 542: 12 541:14, 541:15, 541:17, 535:23, 536:1, 536:7, conflicts 111 - 531 :25 COURT[41J-489:1, 489:12, 552:5, 552:6, 552:8, 536:9, 542:14 confusing 111 - 546:9 490:2, 490:5, 490:10, 552:16, 552:17, 554:7

classic111-496:17 confusion 121 - 546: 11, 490:13, 505:8, 506:21, dark 111 - 499:21 clear [2] - 496:22, 526: 15 546:14 523:2, 525:18, 525:21, data [1] - 516:16 clearly [2] - 492:18, 496:5 connection 111 - 500:23 529:18, 529:22, 531:1, dated [4J - 495:16, 495:17, CLERK [16] - 551 :6, 551 :9, conscientiously 111 - 543:20 531 :7, 545:3, 545:6, 546:2, 499:8, 528: 13

551:16, 551:22, 552:4, consldar110J - 534:9, 535:6, 548:5, 548:7, 548:12, dates 111 - 499:24 552:8, 552: 13, 552:20, 535: 11, 536:4, 539:21, 548:14, 548:17, 548:25,


4

days [31 - 499:8, 507:1, deposition [8]- 492:14, 539:11 earning 111- 519:12 517:25 492:23, 493: 16, 494: 13, discuss [3]- 530:1, 536:12, earnings 111- 540: 16

de1s1-492:12, 503:17, 494:23, 525:25, 526:3, 542:3 eaaier111- 547:19 510:1, 512:9, 512:18, 527:25 discussed 131 - 503: 11, EASTERN [11 - 489:1 512:19, 512:21, 529:8 depression 111 - 504:2 513:19, 517:5 easy 111- 520:3

deaf111-515:13 described 111 - 534:14 discussion 121 - 495:9, 542:2 economic [2]- 503:14, 554:7 deal 111- 523:8 descriptions [21 - 499:21, discussions 111 - 522:22 effect [1] - 533:2 dealt111- 532:10 501:20 dismissed 111- 512:15 El 111 - 496:5 decide 1121 - 503: 14, 529:3, deserve121- 514:14, 518:8 dispute 111 - 507:24 eight 131 - 515:25, 525:4,

533:19, 534:10, 537:20, deserved 121- 514:15 disputed 111 - 495:6 525:7 539:17, 539:20, 539:21, deserves 111 - 514: 14 disregard 111- 541:10 either16J - 495:10, 532:14, 540:1, 540:13, 540:17, deserving 111 - 505: 13 disregarded 121 - 534:1, 532:25, 533: 12, 542:22, 547:16 desire 111 - 542:20 534:4 548:24

decided [2] - 495:5, 532:7 detail 111 - 535:8 distress 111- 503:16 element 13J - 542: 10, 542: 13, deciding 151 - 534: 1, 534:7, deter111- 541:7 DISTRICT l3l - 489:1, 489: 1, 543:17

534:8, 535:3, 535:11 determine [-41 - 505:3, 489:12 elements 121- 531:17, decision [23] - 491:16,495:7, 536:15, 536:17, 539:8 disturbing 111 - 497:11 532:18

496:16, 500:2, 503:5, determined 111 - 539:6 DJ 1-4]-500:16, 500:17, eliminate [31 - 495:21, 503:8, 534: 11, 536:25, difference 111 - 525:7 518:12, 528:11 501:13, 513:8 537:4, 537:6, 537:8, 537:9, differences 111- 536:11 doctor 111 - 497:8 emotional 141- 503:16, 537:14, 537:22, 537:24, different 121 - 522:4, 535:8 document [31 - 500:2, 513:5, 505:2, 505:4, 540:14 538:2, 536:5, 542:1, 542:8, differently1•1- 533:7, 535:9, 524:21 emotions 111- 505:16 543:16, 551 :12, 551 :19 535:10, 537:17 documentation 111 - 522:25 employed 111- 517:17

decision's [2] - 499:10, difficult 111 - 504:24 documents 110J- 490:17, employee 111 - 537:21 499:18 dining [6] - 499:13, 513:13, 500:11, 508:2, 510:5, employees [4] - 538:12,

dedicated 111 - 504: 18 515:18, 517:14, 519:7, 510:19, 518:25, 523:3, 538:15, 538:16, 538:18 deem 111- 532:1 538:20 524:13, 524:17, 524:22 employer [2] - 535:20, defendant 1111 - 490:20, dinner 111 - 503:22 donating 111 - 491 :8 537:20

506:21, 537:8, 537:16, direct 161 - 493:21, 493:24, done171-492:5, 524:7, employer's121- 537:19, 538:2, 538:9, 538:13, 523:17, 533:21, 546:23, 527:2, 527:23, 528:1, 538:3 539: 1, 541 :6, 548:25, 554:22 534:25, 554:7 employers 111 - 505:23 551:23 director 121 - 496:2, 538: 19 doubt [41 - 500:3, 503:9, employment [2] - 535:17,

defendanrs 111 - 496: 18 disabilities 111 - 523:20 528:5, 529:5 537:6 Defendants [2] - 489: 10, disability [331 - 491: 13, DOUGLAS [2] - 489: 15, employs 111 - 523: 19

489:18 491:14, 491:15, 497:3, 489:18 EMT[11 - 508: 17 defendants [16] - 491 :4, 503:4, 503:6, 527:20, down [5]-497:5, 511:18, ends 111- 526:1

491:23, 503:24, 504:7, 535:18, 535:22, 536:20, 513:12, 523:6, 524:10 entered 111- 514:1 505:14, 505:18, 532:15, 536:24, 537:2, 537:3, downright111- 500:6 enters 131 - 490: 12, 531 :6, 532:19, 534:22, 535:23, 537:5, 537:12, 538:7, draft[2]- 548:9, 548:10 551:1 535:25, 536:3, 536:4, 538: 10, 538: 11, 538:25, draw [2] - 500:5, 532:1 entire [2] - 491 :22, 496: 1 538:21, 539: 19, 542: 11 539:1, 539:7, 539:9, dream 131 - 503:18, 512:18, entities 111 - 532:9

defendants' [8] - 500:4, 551:12, 551:18 512:25 entitled [9] - 532: 11, 532:12, 533:8, 533:12, 537:13, Disability111- 535:19 drug 111 - 528:7 539:19, 539:20, 539:22, 537:14, 538:5, 538:8, disbelieve 111 - 535:1 during [3] - 499:25, 541 :25, 540:5, 540: 13, 542:4, 541:10 disclose 111- 497:22 542:23 552:5

defense [2] - 495:3, 526:8 disclosed 141 - 494: 11, duties 141 - 519:4, 531 : 14, equal 141 - 532:6, 532:8, define 111- 531 :14 495:14, 495:23, 503:2 538:17, 553:23 532:9, 532: 11 degrees 111 - 522:4 disclosing 111 - 502:6 duty 151 - 491:19, 531:20, equals 111 - 532: 10 Del [4J-511:1, 511:3, 511:6, discovered 111 - 506:25 542:11, 542:14, 543:19 Eric 111- 518:14

511 :21 discriminate 111 - 535:21 errors 111 - 538:3 deliberates 111 - 550:5 discriminated 1s1 - 524:9, E ESQ[SJ-489:15, 489:15, deliberating [21 - 547:6, 526: 11, 535:24, 551: 11,

e-mail 1131 - 499:6, 499: 19, 489:18, 489:19, 489:19 548:3 551:17 essential [31- 532:18,

deliberation 111- 507:18 dlscrlmlnaUng 111 - 538:25 499:23, 501 :23, 502:2,

542:10, 542:13 deliberations !6J - 531:19, dlscrlmlnaUon [13J - 491:13,

502:22, 520:19, 521 :1, essentially111- 507:23

542:4, 542:24, 547:23, 497:2, 497:3, 500:24, 521 :3, 524: 14, 526: 12,

establish 131 - 532:20, 539:5, 529:15 547:25, 548:4 536:14, 536:17, 536:21, e-mails 111 - 522:9 542:9

delighted 111- 523:14 537:25, 538:5, 539:2, established 111- 542:13 demonstrates 111 - 500:3 539:4, 551 :24, 552:1 early 111- 520:14

esteem 111- 505:15 denial 111- 503:1 discriminatory [2] - 537:22, earned 111- 509:25

Case 2:10-cv-01245-LDW-ETB Document 72 Filed 08/02/12 Page 72 of 79 PagelD #: 119l

5

evaluations [2] - 517:2, F Fifth 121 - 489:16, 489:20 friend [9] - 491: 10, 496: 14, 518:24

Evanov14J-510:20, 511:22, fabrication 121 - 524:13, figure [11 - 492:22 496:22, 497:17, 502:11,

511:24 524:22 filed [1] - 500:23 519:23, 523:13, 523:21

evenly 111 - 533: 1 o face 131 - 494:9, 495:1, 526:5 filled [11 - 491 :25 friends 131 - 502:9, 509: 15,

event [11 - 535:9 facilities [11- 513:13 final [1J - 524:7 523:15

events [1J - 534:14 fact 111] - 496:24, 500:8, flnally [11 - 549:24 front [11 - 528:3

evidence [54J-490:17, 503: 1, 507:2, 509:21, financials151- 493:1, 493:7, FU [11 - 525:5

490:18, 497:21, 497:22, 513:25, 516:22, 522: 10, 509:19, 523:4 Fulbrlght [11 - 489:20

499:5, 500:6, 501:7, 501:9, 524:15, 525:1, 535:7 finders [11 - 496:24 fulfill [1]-541:18

503:3, 507:6, 528:8, factor1111- 491 :16, 503:5, fine [41 - 523:14, 545:4, fundamental [1J - 505:17

529:13, 531:8, 531:21, 503:7, 536:24, 537:1, 549:7, 554:15 future [51 - 539:25, 540:12,

531:25, 532:1, 532:2, 537:3, 537:7, 539:7, 539:9, finish [1J- 519:25 540:16, 541:6, 541:7

532:3, 532:4, 532:19, 551:12, 551:18 fire l6l - 491: 16, 510:6,

532:20, 532:22, 532:23, factors [3] - 515:6, 534: 12, 514:7, 514:24, 515:11, G

533: 1, 533:2, 533:4, 533:6, 535:11 521:22

533:8, 533:10, 533:15, facts [281 - 506:23, 507:3, fired [13] - 491 : 11, 491 :24,

gameq11- 512:11

533:19, 533:23, 533:25, 507:9, 507: 11, 507:16, 496:12, 496:21, 498:6,

garnered [11 - 507:21

534:2, 534:3, 534:6, 534:9, 509:12, 514:20, 514:21, 502:23, 503:24, 515:1, Gaughran [11 - 499:7

534:20, 538:4, 539:17, 515:7, 517:25, 518:4, 515:2, 515:3, 515:22, gay [1] - 528:7

541 :24, 542:2, 542:11, 518:18, 524:8, 524:12, 527:6 geared [1J- 517:13

542:14, 543:21, 546:4, 524:16, 524:23, 525:11, first [181 - 490:20, 490:23, gee [1] - 509:9

546:6, 547:21, 548:1, 526:6, 526:14, 531:21, 491 :3, 492: 1, 492:9, 505:9, general [61 - 500:20, 501 :12,

548:12, 548:13, 549:9 531:22, 532:4, 532:13, 513:5, 521 :17, 527:16, 503:19, 513:8, 531:14,

exactly l2l - 494: 19, 494:22 533:20, 533:24, 534: 1, 527:19, 527:22, 527:24, 531:18

examination [3J - 493:21, 534:8, 541 :24 531 :13, 547:8, 547:10, gentleman [1J- 519:17

494:12, 533:22 failed [2] - 540:20, 542:9 547:16, 547:21, 554:9 gentlemen [81 - 490:25,

examined [11 - 548: 17 failure [3] - 496:20, 504:2, firsthand [1J - 491:21 505:25, 506: 18, 529: 10,

examining [11- 497:25 504:3 fiscal [11 - 492: 11 529:11, 529:12, 552:14

exceed [11 - 540:21 fair [41 - 505: 11, 507:5, five 131 - 505:8, 522: 19, 523:2 gesture [11 - 522:5

except [11 - 543: 1 524:11, 537:11 FJ [2] - 523:11 gigantic 111 - 523:6

exceptionally [1] - 509: 18 falrty [1] - 542: 15 flavor[1J - 546:18 given 131 - 539: 18, 542: 1,

exchange [11 - 542:5 faimen [11- 505:17 flippant111- 522:18 543:21

excluded 111 - 534:4 faith [2] - 504:9, 538:3 flummoxed 111 - 512:2 glutton [11 - 549:21

exclusive 111 - 537:6 false [11- 492: 13 folks [51 - 496:11, 497:6, goal [1J - 519:1

excuse [4J - 513:12, 515:12, falsehood [11 - 535:6 506:5, 506:8, 526:9 goatee 111 - 515:5

525:12, 529:12 falsehoods [11 - 496: 19 follow [2J - 547:16, 547:18 goofy [1] - 514:2

excused [11 - 553:21 family [5J - 502:9, 502: 1 o, followlng 131 - 493:22, govern [1J - 531:14

Exhibit (29] - 492:2, 492: 18, 504:4, 504:9, 504:25 495:22, 534: 13 governs [1J - 531:11

493:4, 493:5, 493:6, 493:7, far[1J - 513:13 food 111-547:12 great [2] - 523:25, 524:6

493:13, 495:15, 495:20, fast 11] - 503: 12 foreman [21 - 547:9, 551:6 Great [11 - 524:2

495:22, 496:4, 496:5, fate 11] - 529:3 FOREPERSON [6] - 551 :8, greater E4l - 532:22, 532:24,

499:6, 500:16, 501:10, Father's 111 - 504: 15 551: 15, 551 :21, 552:3, 532:25, 535: 13

501:17, 501:23, 502:7, fatigue [1J - 504:2 552:7, 552:11 grew [1J - 515:16

503:25, 519:21, 521:17, favor [111- 503:10, 506:10, foreperson [41 - 547:9, grips [1] - 504: 10

525:5, 527:9, 527:11, 529:20, 532: 12, 533: 13, 547:13, 547:22 groups 111 - 512: 14

528:11, 528:12, 551:4 537:13, 538:8, 538:11, forget [1] - 535:4 guess [41 - 525:22, 525:24,

exhibit [11 - 528:12 540:25, 543:20, 552: 15 form 111 - 530: 1 526:1, 537:14

exhibits 131 - 495:15, 501 :18, Fax [1] - 489:23 former [11 - 496:22 gun [2] - 502:22, 516:2

533:23 FCRR [11 - 489:22 formulatlon [11 - 522:24 guy[2] - 515:16, 524:3

Exhibits 111- 527:7 fear [11 - 543:20 fortunately [1] - 496:23

expenses [11 - 525:6 feature [11 - 510:2 forward [3J - 495:20, 499: 15, H

expert121 - 514:12, 518:19 federal [3] - 514: 11, 518:9, 526:25 half [11 - 499:2

explain [1] -492:14 535:18 forwards [1J - 496:16

explored 111 - 509:6 Federal [11- 489:23 four[121- 495:4, 495:5,

hallways [11 - 505:20

extension [1J - 514:22 feelings [2] - 504:2, 504:3 495:9, 507:1, 508:15,

hand 18]-516:9, 519:11,

eyes [1] -491:10 fall [21 - 503:20, 513:4 513:18, 514:3, 517:3,

522:12, 522:13, 522:14,

fallow 111 - 542:6 517:25, 518:21, 520:24,

529:4, 529:7, 537:9

felt 11] - 522:5 522:19

handwriting [21 - 510:24, 511:5

few 121 - 500:24, 543: 14 Francis [1J - 512:24 happy[1J- 512:16 frankly[2]- 519:19, 523:14


6

hard [2] - 503: 18, 509:25 HONORABLE [IJ- 489:12 instead [2] - 528:5, 537:6 537:19, 538:3, 554:3 hard-earned [11- 509:25 hope13J - 514:18, 518:10, INSTIT\JTE [11 - 489:7 July [11 - 516:21 hardworking [6] - 504:18, 525:14 instruct [5] - 531 :11, 531 :16, jumped [1] - 504:20

515:16, 515:17, 523:18, hopefully [II - 500:9 532:13, 538:15, 538:19 June [11 - 489:9 524:3, 525:8 hoping [11 - 509:8 Instructed [11 - 540: 15 Juror [41 - 552: 18, 552:20,

harm [11 - 503: 16 horrible 111 - 515:9 instructions [9] - 510:14, 552:23, 553:4 head [41- 491:8, 504:23, horribly 111 - 504:23 510:15, 525:12, 531 :12, JUR0R[8]- 552:19, 552:22,

515:18, 547:3 hour [11 - 499:2 531 :13, 531 :18, 536:10, 552:25, 553:3, 553:6, health 171- 502:17, 521 :19, household [1J - 504:23 536:19, 542:21 553:9, 553:12, 553:15

521 :23, 522: 1, 522:3, HR [5] - 499:7, 499:20, insulting [11 - 522:21 juror [41 - 553: 1, 553:7, 528:19, 529:1 499:23, 500: 13, 528:23 Integrity [11 - 502: 18 553:10, 553:13

hear [101- 509:13, 515:24, HR's [11 - 499:21 intelligence 121 - 505: 16, jurors [4J - 491: 19, 542:6, 520:4, 520:9, 525:22, human [12] - 504:19, 512:16, 534:15 553:23, 554:22 525:24, 526:2, 542:20, 520:20, 522:6, 535:19, Intentional [2] - 491: 13, JURORS 111- 553: 17 546:17, 549:16 536:2, 536:7, 536:8, 535:6 Jury [3J - 490: 12, 530:3,

heard (141 - 492:4, 503: 16, 536:15, 538:22, 538:24, intentionally [5] - 523: 10, 531:6 504:8, 506:19, 507:1, 539:13 535:21, 535:23, 551: 11, JURY [6] - 551 :8, 551: 15, 507:2, 509:14, 510:7, humanitarian 111 - 522:5 551 :17, 551 :23 551:21, 552:3, 552:7, 510:15, 526:6, 526:7, hundreds 111- 517:25 lnterest[1J- 534:16 552:11 534:5, 546:24, 547:4 hurt 111 - 521 :21 interesting Ill - 526:25, jury [281 - 489: 12, 490:2,

heart [1J - 505:3 527:6, 527:7 490: 11, 490:25, 491: 17, held [11- 536:16 I Intravenous [11 - 528:7 505:25, 506:19, 507:17, help l31- 496:3, 504:9, 516:1 involved [3] - 496:5, 522:23, 510:22, 514:9, 522:20, herpes [1J-515:14 ill [1(-541:12 534:18 529:12, 531:2, 531:14, herring 111- 500:15 Immaterial [11 - 546:5 Irrelevant [2] - 514:24, 536:10, 543:2, 547:10, hesitate [11 - 542:7 immediately 111 - 547:13 527:21 548:4, 549:22, 550:5, hlmself[4J- 504:4, 515:14, importance 111 - 531 :23 Islip [51 - 489:6, 489:23, 551:1, 551:3, 551:7,

515:18, 516:21 Important [111 - 492:5, 513:11, 513:13, 515:19 552:12, 552:14, 553:18,

hire [2J - 517:10, 519:8 497:21, 499:5, 507:19, issue [11 - 554:7 553:20, 553:25

hired 111- 516:25 510:1, 524:21, 535:7, issues [2] - 523:16, 543:21 justify l31 - 492:10, 496:23,

hit [1] - 491 :7 536:11, 547:8, 547:17, ltallan 111 - 515:4 500:12

HIV [55] - 491 :9, 494:11, 548:19 ltaly[2]- 520:1, 522:14 justly111- 542:16

494:15, 495:14, 495:24, Importantly [11 - 539:24 item [11 - 521 :24

497:15, 497:23, 498:9, impossible[11- 520:19 K 499:9, 500:5, 500:8, impress [1J - 531 :23 J 501 :25, 502:9, 502:23, incident 111 - 508: 11 keep 111 - 535:4

503:2, 504:7, 506:25, Include [2] - 540:9, 542: 1 Jablonsky [41 - 501 :24, key[1]- 502:10

507:5, 507:12, 508:12, including 111 - 534: 13 520:12, 520:25, 528:22 kind [11 - 520:8

508:14, 509:12, 510:4, inconsistencies [6J - 496: 18, Jaworski [11 - 489:20 knOWS(4] - 516:12, 516:13,

510:8, 510:16, 511:7, 496:19, 503:1, 517:23, job 1191 - 496: 14, 499:20, 520:12, 526:8

511 :17, 512:10, 512:15, 526:15, 529:17 501 :20, 503:18, 504:11,

513:25, 514:17, 514:22, increase [11- 528:16 504:24, 508:4, 508:6, L 514:25, 515:6, 515:8, Increased Ill - 502: 12, 510:8, 510:11, 512:7, lack 111 - 532:2 519:17, 519:23, 520:9, 502:15, 528:24 512:9, 512:18, 512:25, ladies [2] - 490:25, 529:10 520:22, 521 :12, 521 :13, indicate [7] - 506:23, 514:21, 518:17, 518:22, 520:1, lald [11 - 528:2 521 :21, 523:9, 524: 16, 515:7, 518:4, 518:18, 520:6, 525: 15

language [1J - 496:7 525:1, 526:12, 527:17, 524:8, 524:24 jobs [3] - 491 :24, 491 :25,

lapse [11 - 535:5 527:20, 527:21, 528:6, lndlvldual [51 - 489:8, 489:9, 499:21

large [11 - 505:14 529:15, 535:25, 536:20, 535:21, 538:21, 539: 1 Joe 111 - 549: 17

last [8] - 492:3, 506:6, 506:8, 536:22, 536:23 individually l21 - 538:24, joined 121- 520:12, 520:25

506:9, 519:6, 519:11 hold [11 - 507:7 539:12 joins [11- 549:20

late [41 - 507:24, 507:25, home [41- 508:13, 511 :11, infer 111 - 506:23 Judge 171 - 503: 14, 506:8, 523:22, 523:23

511 :19, 511 :21 inference [1J - 512:10 510:14, 527:19, 532:13, Laura 111 - 504:9

honest[1J- 504:19 Inferences [41 - 507: 19, 541 :24, 554:2 law [211 - 529:23, 531: 11,

Honor [16] - 490:24, 510:21, 507:20, 512:10, 532:1 Judge [4J - 524:7, 545:2, 532:10, 532:13, 535:15,

525:17, 529:21, 548:6, information [11 - 499: 16 549:25, 553: 18 535:20, 536:2, 536:7,

549:2, 549:7, 549:11, Informed [11 - 520:8 JUDGE 111-489:12 536:8, 536: 15, 536:20,

549:14, 549:18, 554:6, injuring [11 - 541: 13 Judge's [11 - 525:11 537:20, 538:22, 538:24, 554:13, 554:15, 554:18, injury [2] - 505: 13, 540:8 judges 111- 531 :22 539:13, 539:15, 539:18, 555: 1, 555:2 innocence [11 - 535:5 judgment[4J- 537:15, 541 :25, 543:24, 546:7.


7

548:2 542:6, 546:22 mechanical [11 - 489:24 motions [21- 554:1, 554:21 lawa121-536:10, 536:11 llatened [11 - 506:7 medlcal l2l - 502:8, 503:25 moUvated [2J - 537:24, 538:9 lawsuit [11 - 518:5 live [11- 505:1 member [11 - 543:2 motivating [111 - 491: 15, lawyer [41 - 497: 13, 508:25, logical [11- 514:22 members [1]-491:17 503:4, 503:7, 536:24,

509:9, 510:12 Lombardi 121 - 489:22, memo [18] - 493: 12, 493: 14, 537:1, 537:3, 537:7, 539:7, lawyers [BJ - 490:16, 506:7, 490:25 495:19, 498:1, 500:13, 539:9, 551:12, 551:18

509:4, 533:24, 534:2, look [231 - 493:2, 493:21, 500:16, 500:18, 501:20, move [2] - 490:22, 495:20 543:12, 543:24, 546:15 494:8, 495:1, 498:1, 505:3, 513:15, 513:17, 516:11, moved 121 - 503:7, 537:8

lay121- 517:11, 528:3 505:20, 507: 16, 507: 18, 516: 15, 517:9, 520:21, moving [1]-493:9 LOW [11 - 489:4 507:20, 509:18, 514:12, 524:24, 525:25, 527:8 MR [38J - 490:3, 490:24, lead [11 - 537: 15 516:22, 520:10, 524:20, memory[2]- 534:15, 535:6 505:10, 506:22, 523:3, learned [81 - 509:11, 509:12, 528:6, 529: 11, 529:13, memos [6]- 500:13, 501 :10, 525:16, 525:19, 525:22,

509:13, 510:3, 510:16, 529:17, 529:19, 549:6 508:3, 514:8, 515:23, 529:19, 545:2, 545:4, 514:23, 520:19, 521 :2 looked [11 - 504:22 515:25 545:5, 548:6, 548:8, 548:9,

learning 121 - 491 :9, 511 :23 looklng 111-547:2 mental [IJ- 540:15 548:10, 548:13, 548:15, learns [51- 508:12, 510:23, loslng [11- 512:9 mention 171 - 493:5, 495:9, 548:16, 548:23, 549:1,

510:25, 511 :17, 520:14 loss [4J - 492: 13, 504: 11, 500:14, 500:19, 501 :11, 549:2, 549:7, 549:11, least111- 538:10 523:6, 540: 10 501 :12 549:14, 549:18, 549:24,

leave[31- 506:18, 512:25, lost [2] - 539:25, 540: 16 mentioned 111 - 500: 17 550:2, 554:2, 554:6,

553:21 love [11 - 503:20 merits 121 - 543:3, 543:7 554:10, 554:13, 554:15,

leaves [3J - 501 :4, 530:3, lunch [2]- 547:24, 549:16 message [41- 505: 18, 554:18, 554:19, 554:24,

553:25 lylng [5J - 493:20, 495:2, 505:22, 506:1, 506:15 555: 1, 555:2

left [7] - 497: 10, 505:8, 516:1, 516:9, 516:22 met [11 - 498:25 muHiple 111 - 515: 14

512:19, 512:21, 516:25, metadata [2] - 514:12, must[241- 506:19, 512:16, 523:2, 543:25 M 518:19 514:25, 532:13, 533:5,

legal [1J - 531:16 MICHAEL 111 - 489: 15 533:12, 534:8, 534:10,

Lan [11- 500:13 mail [14] -497:10, 499:6,

middle [11 - 511 :4 534:22, 536:4, 536:15,

length [11 - 532:25 499:19, 499:23, 501:23,

might l2l - 501 :2, 549:21 536:21, 537:2, 537:12,

LEONARD [2] - 489:8, 502:2, 502:22, 520:19,

million [14] - 506:3, 506:10, 537:13, 538:1, 538:7,

489:12 521:1, 521:3, 524:14,

506:11, 506:13, 510:6, 539: 11, 539: 15, 540:6,

less [11- 506:14 526:12, 529:15

510:10, 512:6, 514:17, 541:15, 541:16, 542:8,

Levittown [1J - 515:16 mails [11 - 522:9

515:2, 515:21, 518:10, 543:15 male [IJ - 547: 10

liability131- 503:11, 536:17, mallclous [2]- 541 :10, 519:15, 525:5, 525:7

538:21 mind [7] - 491 :24, 499: 1, N 541:12

liable[5J- 536:16, 538:24, man [2] - 502:18, 523:18 511 :25, 516:12, 519:20, name [11- 501:12

539:2, 539:12, 551:23 management [11 - 519:2

533:16, 535:4 narrow [11 - 509:5 llar [3J - 491 :3, 491 :20,

manager [51 - 500:20, minds [IJ - 533:3 national 111 - 523:20

493:19 501:13, 503:19, 504:6, minute [11 - 529:22 near[1J- 512:11

lie [51- 493:1, 493:10, 509:16

minutes [Bl - 505:8, 523:2, nearly[11- 533:5 502:15, 508:9, 514:2

manager's [11 - 513:8 527:16, 529:24, 529:25, necessary 111 - 542:23

lied l6l - 493: 1, 493:3, manner[11- 534:15

530:2, 543:14 need [41- 498:12, 528:19, 523:10, 525:23, 525:24,

map [1J -547:18 mirrors [2J - 516:3, 518:2 537:4, 539:21

526:2 March [2] - 521:20, 522:2

misread [11 - 493:1 needed [6] - 498:10, 498:14, lies [51 - 492: 1, 502:25,

marked [1J - 551 :3 mistake 131 - 492:25, 511: 12, 498:15, 498:18, 498:22,

508:10, 526:16, 529:19 523:8 Marriott [11 - 512:23 520:23

life131-505:2, 513:21, massaging [11 - 508:8

model [IJ- 504:17 negligent [1] - 538:3 523:21 Monday[2] - 521 :18, 521 :25

mater [11 - 503:20 NEIL [11-489:19 llght [3] - 534:20, 546:14,

math [11 - 492:22 money [16] - 496: 11, 505:4, never [8J - 491 :25, 495:7,

546:16 506:5, 506: 13, 509:25, 497:12, 501:7, 504:25, matter151- 515:23, 519:19, lightly [11 - 491 :20 534:18, 555:3

510:10, 513:2, 519:10, 507:12, 515:1, 515:22 llghte [1] - 525: 16

matters [11 - 539:25 519:12, 522:9, 525:15, new [2]-491:24, 501:19

likely [6] - 497:6, 497:9, 526:1, 528:16, 529:1, Maureen [1J-499:7 NEW [2] - 489:1, 489:7

497:14, 503:8, 532:21, 542:15, 547:12 New [7] - 489:6, 489: 17, 533:17 mean [21 - 527:3, 532:24 Monster.Com [11 - 501 :21

means [7] - 513:22, 518:5, morning [31 - 493:25, 494:4, 489:21, 489:23, 515:19

limit[1J- 503:12 532:21, 532:22, 533: 15, news [1J - 497:11

limits [11- 490:21 520:14 536:9, 543: 16 next[111-499:15, 501:3,

Line [21 - 500:9, 527:24 Moses [11 - 505:21 507:25, 511 :22, 512:3, meant111- 516:2 lines [SJ - 511: 15, 517:22, moat [31 - 497:20, 507: 19, 512:4, 515:24, 524:10, measure [11- 539:23 524:9, 524: 12, 524:20 524:20 530:5, 544:3, 545:8 llaten [41 - 497: 16, 525:11, measures [11 - 493:14 motion 121 - 554:2, 554:12


8

nice [11-523:12 497:23, 498:5, 498:24, owe [11- 513:23 525:3, 527:2, 527:6, 527:8, nlght[11-511:16 498:25, 499:4, 500:12, owes [21 - 496:1, 513:21 527: 11, 527: 12, 533:20 NO [8] - 552: 19, 552:22, 501: 11, 502:7. 503:2, own [41 - 497: 13, 523:21, parfonnad 121 - 509: 13,

552:25, 553:3, 553:6, 506:25, 508:12, 508:21, 542:5, 542:9 523:8 553:9, 553:12, 553:15 509:12, 510:4, 510:23, performing [4]-491:18,

nobody [11 - 513:22 510:25, 511:1, 511:2, p 493:2, 509:14, 509:17 nominal [5J -540:3, 540:18, 511:5, 511:10, 511:17,

p.m [2] - 551 :1, 553:25 perhaps [11 - 508: 17

540:21, 541 :2 511:25, 513:5, 514:23, permit [11 - 537:14 none [41 - 500: 14, 507:3, 516:10, 516:13, 516:14, page [141- 492:3, 493:22,

pannittad [1J - 540:8 507:10, 507:14 516:15, 516:17, 516:18, 493:23, 494:12, 497:24,

parson [12] - 493:20, 494:20, nonsenslcal 111 - 525: 10 516:19, 517:9, 517:18, 498:3, 496:25, 517:21,

494:23, 499:7' 505:6, normally [11 - 547:9 518:12, 519:2, 519:18, 517:24, 521 :17, 524:10,

508:16, 508:17, 510:17, note [SJ - 542:22, 542:25, 519:19, 519:22, 520:5, 530:5, 544:3, 545:8

527:22, 528:23, 543:5, 543:8, 543: 12, 546: 11, 520:9, 520:10, 520:13, pages [11 - 517:25

547:11 546:12, 546:15, 551:3 520:17, 520:18, 520:20, pain [11- 540:14

parson's 111 - 535:22 notes [11 - 543: 14 521:2, 521:4, 521:16, Paparazzi [11 - 512:24 personal [2]- 497:18, 497:19 nothing [111- 497:4, 502:16, 522:10, 522:23, 522:25, paper 111 - 554:4

personally[1J- 537:16 505:15, 518:10, 519:16, 524:21, 524:24, 526:5 paragraph 151 - 492: 10,

parsons [31 - 509: 15, 532:9, 525:14, 526:19, 526:21, OF [31 - 489: 1, 489:7, 489: 11 502:14, 519:6, 519:11

543:20 527:8, 527:10, 527:11 offensive [11 - 500:6 pardon [3J - 516:9, 516:24,

Ph [11 - 489:23 notwithstanding [11 - 554:3 offer [2] - 502: 19, 528:25 523:11

phone [31 - 494:18, 501 :5 November [21 - 516:11, offered [11 - 534:9 parents [2] - 510:9, 525:8

phrase [11 - 533: 1 516:17 office 121 - 494: 1, 494:4 parents' [11 - 509:25

piece [11 - 499:5 numbar[12J- 512:6, 532:24, otncer [11 - 527:22 part[SJ- 518:14, 520:24,

pieces [1J - 497:21 534:12, 547:20, 552:18, official [2] - 489:7, 489:8 522:24, 523: 1, 532:22,

Pilar [31 - 508:5, 508:24, 552:20, 552:23, 553:1, Official 111 - 489:22 534:18, 535:1, 538:10

513:20 553:4, 553:7, 553:10, old [11 - 515:4 participated [2] - 539:3,

pillar111- 515:20 553:13 Old 111-515:19 539:10

PL [11- 511 :2 numbers [11 - 492:21 once [11 - 541 :23 participating [11 - 551 :25

place [101- 497:2, 499:4, numerlcally [11 - 543:6 ona [191 - 491 :24, 496:9, partlcularly [11 - 507:20

503:19, 503:20, 512:24, numerous [11 - 518:24 500:14, 504:13, 506:4, parties [5] - 531 :9, 532:6,

513:10, 513:14, 516:17, nutshell [2J -518:21, 519:5 506:15, 507:2, 507:20, 532:8, 532:11, 541:20

519:3, 533:6 nutty [11 - 512:12 508: 11, 508:20, 510:23, parts [11 - 531: 12

plain [11 - 491 :20 NYIT1191 -506:24, 512:15, 511 :24, 512:4, 517:2, party [11 - 532:12

plalntlff [401 - 490:20, 512:25, 514:15, 515:19, 522:18, 523:15, 524:21, pass 111- 531 :24

490:21, 490:23, 522: 11, 518:8, 525:9, 535:17, 540:2, 547:11 past [2] - 539:25, 540: 16 532:15, 532:17, 533:4, 535:25, 536:2, 538:13, oops 111 - 522: 12 Paul [11 - 489:22 533:9, 534:21, 535:16, 538:20, 541 :1, 551:10, open 131 - 543:4, 543:22, pause [3J - 490:7, 531 :3, 535:23, 536:1, 536:13, 551:17, 551:24, 552:9, 546:1 548:21 537:2, 537:4, 537:10, 552:17 opening l9l - 491 :1, 492:24, pay [1] - 521 :20 537:15, 538:1, 538:6,

NYlra [2] - 551 :12. 551: 19 495:3, 502: 1, 502:5, paying [1] - 510: 1 538:23, 539:5, 539:17, 502:21, 506:22, 507:8, pending [2] - 554:21, 554:25 539:19, 539:20, 539:22,

0 527:17 people [171 - 495:2, 495:4, 540:5, 540:7, 540:13, openings [11-490:15 495:5, 495:9, 502:8, 540:17, 540:19, 540:20,

o'clock [2] - 519:24, 520: 14 opinion [41- 530:1, 542:5, 507:21, 508:8, 513:18, 540:25, 541:2, 541:8, oath [5J - 492:17, 493:13, 542:7, 542:8 514:3, 517:3, 517:10, 542:9, 551:10, 551:16,

526:2, 526:16, 543:19 opportunity[1J- 534:13 523:12, 523:16, 523:19, 551:22, 552:5, 552:15 objections [31 - 534:3, opposed [2] - 533:6, 533: 16 527:24, 535:4, 535:8 Plalntlff[6] - 489:5, 489:15,

548:23, 549:2 opposing [2J - 490:24, perceived [141 - 491: 14, 495:15, 519:21, 521:17, obscure 111 - 516:25 527:15 491:15, 503:4, 503:6, 528:12 observe [11- 534:14 opposite [11 - 533:8 536:23, 537:3, 537:5, plaintiff's [BJ - 533:7, 536:8, observing [11- 535:8 orally[11- 543:3 537:12, 538:7, 538:10, 538: 11, 539:6, 539:8, obtaining 111 - 512:9 order [3J - 506: 15, 526:9 539:1, 539:7, 539:9, 540:24, 541:11, 541:16 obviously [11 - 554:3 original [11 - 507:9 551 :18 plaintiffs [11 - 536:21 occur 111 - 540: 11 origins [11 - 523:20 percent [2] - 496:11, 506:14 plan [11- 523:1 occurred [2] - 522:10, otherwise [11 - 543:6 perfectly [11 - 545:2 plauslble [11 - 512: 11

524:14 outcome [1J - 534: 17 perform [11- 512:17 play [11 - 508:24 October[66] - 493:8, 495:13, outright [11 - 492: 1 performance [141 - 500:11, played [1] - 509:7

495:16, 495:21, 495:22, outside [11 - 534:5 500:15, 507:24, 515:10, Plaza [11 - 489:23 496:15, 497:7, 497:14, overheard [11 - 507: 13 517:1, 518:24, 523:24, pleasure [2] - 549:23, 549:25


9

plus [31- 510:7, 522:1 prompted 141 - 491 : 16, read 1121- 493:17, 494:13, relationship 111- 541:16 point [3] - 507:22, 543: 13, 503:5, 536:25, 537:3 524:2, 524:3, 526:17, relevant111- 531 :17

546:24 proof[3J- 521:16, 522:11, 542:19, 543:24, 543:25, relieved 111 - 553:23 points 121- 527:10, 547:7 532:16 545:2, 546:2, 546:7, remainder111- 505:2 pollce 111 - 527:22 prospective 111- 540:10 546:21 remedy 111 - 540:23 policy [41 - 497:4, 502: 13, prove 1211 - 495:4, 497:21, readbacks 111- 547:1 remember [2] - 490: 15,

529:6, 529:7 502:24, 503:6, 506:23, reading [2] - 546:22, 546:25 535:9 poll 111- 552:12 507:5, 507:21, 514:13, realize 111- 503:11 remind 111 - 541 :23 polled 111- 553:18 522:10, 522:12, 523:8, realized 111-515:6 reminded [31 - 511: 13, poor [2] - 507:24, 525:3 526:9, 529:2, 532:21, realizes 111- 511 :12 511:14, 511:16 poorly 111 - 509: 13 536:21, 537:2, 540:20, really131- 497:5, 516:19, reminds 111- 512:4 portion [2] - 518:16, 535:15 551:10, 551:16, 551:22 528:13 ranted 111 - 503:21 portions [2] - 542:19, 542:20 proved 111- 533:17 reason 1131 - 491 :23, 501: 1, reorganization [8J - 499:17, position 1111-491:25, proven 151 - 491: 14, 502:25, 513:20, 527:1, 537:6, 499:22, 514:8, 518:14,

500:20, 501 : 13, 501 : 14, 503:3, 551 :24, 552:5 537:21, 537:22, 537:23, 519:2, 519:3, 525:3, 527:3 501 :16, 513:8, 517:15, proves 111- 513:16 537:24, 541 : 15, 542:24 repeated [2] - 542:18, 542:21 519:7, 521 :9, 535:14 provide [2] - 504:25, 520:8 reasonable [41 - 503:9, repeatedly [2] - 508: 1,

position's 111 - 501: 19 proving 121 - 532: 18, 541 :8 532:2, 540:6, 541:16 525:13 positions 111- 526:16 pull 111- 496:13 reasonableness 111 - 534: 19 replace 111 - 519: 13 positive 1141 - 491 :9, 494: 11, punish [31 - 505:24, 541 :5, reaaonably121- 540:7, replacing 111- 517:19

494:15, 495:14, 495:24, 546:25 540:11 raplln 111- 499:23 497:15, 497:23, 498:9, punished 111- 506:16 reasons 121 - 537:11, 538:6 reply111- 554:14 499:9, 501 :25, 502:23, punishment 111 - 549:21 rebuttal 111 - 490:21 report [31- 517:16, 517:17, 503:2, 524:16, 529:16 punitive 1141 - 506: 12, 540:2, recapitulate 111 - 533: 14 517:18

possibility 111 - 502:3 540:22, 540:23, 540:25, received 131 - 497:7, 533:23, reporter[2]- 542:19, 546:21 posslbl&l4J- 513:20, 541:3, 541:5, 541:8, 541:9, 552:14 Reporter 111 - 489:22

515:25, 536:8, 540:11 541:14, 541:15, 541:17, Recess 121 - 530:4, 550:5 reporting 121- 501:19, possibly121- 512:13, 520:18 552:8, 552: 17 raceas 111- 554:17 501:22 post 111 - 515:20 purport111- 500:12 reckless 111 - 541: 1 O repositioned 121 - 518:15, posted 111 - 501 :21 purported 121- 526:19 recollection 111 - 532:4 518:16 postings 111 - 499:25 purpose 111 - 541 :5 recommend 111 - 495:22 reprehensible 111 - 528:9 pot 111 - 527:14 purposes 121- 541:13, recommendation 111 - representing 111 - 533:6 power [3] - 505:25, 506: 1, 541:18 495:21 request 161 - 495: 19, 495:20,

506:2 pursuant111- 510:8 recommended 111 - 495: 12 501:13, 506:9, 542:18, preJudlce131-532:14, purview111- 503:15 record 121- 500:7, 549:18 542:21

534:18, 541 :19 put 1111 - 490:21, 499:12, recorded 111 - 489:24 required [2] - 503:5, 541 :3 preponderance 1111 - 505: 11, 511 :25, 513:5, records [2] - 502:8, 503:25 resolve[2]- 531:25, 533:12

497:21, 503:3, 507:5, 514:8, 516:5, 516:14, racover131 - 539:19, 539:20, resources 111 - 520:20 532:19, 532:20, 532:22, 517:23, 518:1, 518:3, 539:22 respect l6l - 492:24, 496:3, 533:1, 533:11, 533:14, 518:12, 519:20, 523:6, recross 111 - 546:23 505:7, 523:16, 524:20, 542:10, 542:14 526:24, 533:7 recruitment [2] - 513: 10, 532:3

presented 121- 531 :9, 517:6 rnpectfully 111- 506:16 539:18 Q rad [2]- 500:15, 546:16 respects 121 - 527:20, 527:21

president 111- 499:14 quallty 111 - 533:2 redirect 111 - 546:23 response 121 - 520:8, 522: 19 pretext 111 - 496:17 questioned [2] - 496:2, Redlich 110J - 496:6, 513:24, rnponslblltty 131- 531:10, prevalled 111- 536:13 527:25 517:11, 517:19, 519:4, 531:20, 541:23 private 111 - 503:21 questions 121 - 493:22, 534:3 519:8, 521:5, 521:7, 524:4, responsible 111 - 538: 16 privilege 111 - 549:20 quite 111 - 525: 10 526:20 Reataurant111- 512:23 problem [2] - 501 :6, 522:6 rafer[3J - 513:16, 518:13, result 121 - 491 : 11, 503:24 problems 111- 545:5 R 551:9 resume 111 - 500: 1 proceed 111 - 525:20 refers 111 - 533: 1 resumes 111- 490:1 Proceedings 111 - 489:24 races 111 - 523: 19 raflect111-541:19 resum6 111 - 496: 17 proceedings [31 - 490:8, raise l2l - 496:9, 496: 11 regarding 151 - 497:8, resum6a 111- 499:20

531 :4, 548:22 range 111 - 494:5 502:13, 529:7, 531:13, return 121 - 529:8, 529:20 produced 111 - 489:25 rather 111 - 517:7 531:18 returns 111 - 500: 1 produces 111- 533:16 ratlonal 111 - 542: 1 regardless l2l - 533:22, reveal 111 - 543:5 professional 111- 513:21 reach 111- 543:15 543:9 revenue 111 - 525:6 profit [4] - 492:20, 523:6, reached [31 - 496:14, 551 :4, ragrettably111- 519:17 revenues [2] - 506:3, 506: 14

525:4, 525:7 551:7 regroup 111- 521 :13 ravert111- 507:8 reaching 111 - 536:5 rejected 111 - 502: 19


10

review [11- 525:11 saved [I]- 519:10 seven 131 - 492: 11, 515:25, 500:9, 507: 13, 523:22, ride [11- 508:15 saving [2] - 493:14, 526:1 522:19 523:23, 523:24, 547:11 ridiculous111-513:7 saw [5J - 500:11, 511 :24, several [11- 533:20 sometime 121 - 494:4, 507:14 rights [10J - 502:17, 535:20, 523:3, 527:9, 548:9 severance [7]- 502:12, sometimes 121 - 535:4,

536:2, 536:7, 536:8, scale 111 - 533:8 502:15, 502:18, 502:19, 546:17 536:15, 538:22, 538:24, scales [2] - 503: 10, 533:9 528:15, 528:17, 528:25 somewhat [IJ - 533:9 539:13, 541 :11 scars [11 - 505:2 Severaky [81 - 492:12, son [1J - 515:14

ring [11 - 497: 16 scholarships [11 - 525:9 503:17, 510:1, 512:9, soon 121 - 517:19, 549:16 ripped [11- 521:19 scleroals [11- 515:14 512:18, 512:19, 512:21, sorry [21 - 493:23, 522:5 rise [3J - 539:3, 551 :6, scope [11- 538:17 529:8 sort[11- 513:2

551:25 script [3J - 496:21, 496:22, shaking [11 - 547:3 sought [11 - 533: 17 RIZZUTO 111 - 489:7 496:25 shall [11- 532:13 sounds [1]- 527:2 Rizzuto [62] - 491 :6, 491 :20, scurry[11- 524:15 shared [2] - 497: 18 span [1] - 549:22

492:1, 493:11, 494:1, seated [BJ - 490:6, 490:13, sheet[91- 547:15, 547:17, SPARBER [2] - 489: 19, 494:3, 495: 1, 496: 1, 496:3, 531:7, 548:20, 551:2, 548: 1, 548:5, 548:20, 549:2 496:21, 497:3, 497:7, 552:13 548:23, 549:5, 551:9 specialist[1J- 508:16 497:10, 497:12, 497:15, second [BJ - 490:20, 491 :4, sheets [11 - 547:20 specialists 111- 512:14 497:18, 497:25, 498:24, 500:21, 517:9, 531:16, shield 111 - 517:7 speclflcally[11- 536:14 499:7, 499:10, 499:19, 537:13 shift [2] - 527:13, 527:14 speculative 111 - 540:9 501 :24, 502: 11, 507: 11, see [22J - 492:9, 495:15, shock [2] - 504:3, 526:4 spend 121- 514:16, 516:5 507:13, 508:1, 508:2, 496:6, 497:8, 501 :2, shocked [11 - 495:1 spent 111 - 527: 16 509:20, 510:4, 512:20, 501:10, 501:16, 502:14, short [3J - 490:21, 529:25, spite [11- 541:13 513:11, 513:22, 514:15, 503:25, 508:2, 510:21, 541:22 spring [1] - 502:3 514:23, 515:11, 515:15, 511:22, 513:14, 514:13, shots [11- 527:15 St [11 - 512:24 516:2, 516:12, 516:14, 522:18, 522:20, 529:6, show [12] - 493:8, 496:10, staff [11 - 519:3 516:18, 517:23, 518:8, 530:2, 547:2, 547:7, 501 :22, 508:9, 508:21, stand 1s1 - 492: 16, 494:25, 518:23, 519:23, 519:24, 548:10 510:5, 510:18, 510:19, 504:21, 509:2, 526:10, 523:7, 523:14, 523:15, seem [1]- 506:13 518:19, 537:4, 538:1, 532:9, 543:6, 543:10 523:18, 524:3, 525:23, selection [11- 514:9 546:14 standards [3] - 534:22, 526:10, 526:20, 527:9, self[2] - 505:7, 505:15 showed [41- 516:9, 523:11, 536:6, 536: 18 536:1, 536:16, 538:19, self-esteem 111- 505:15 528:12, 528:16 standing [2] - 532:8, 538:4 538:23, 539:10, 551:23 selfof'apect [11 - 505:7 shown [11-491:12 start [-4] - 520:23, 547:22,

Rizzuto'• [3] - 500:17, send [211-499:16, 499:25, shows [41 - 492: 18, 493:7, 547:25, 548:3 500:22, 502: 14 505:18, 505:22, 506:1, 519:11, 524:2 startling [11 - 523:4

RMR 111 - 489:22 506:15, 520:19, 521:1, side [BJ - 516:25, 533: 1, starts [1J - 546:22 road [11- 547:18 521 :2, 542:24, 543:8, 533:10, 533:12, 548:24, state [8] - 535: 19, 536:2, Robert [6J - 505:21, 513:21, 543:12, 546:8, 546:12, 549:1 536:7, 536:8, 536:15,

523:23, 524:1, 524:14, 546:16, 547:15, 547:19, Sidebar [2J - 545: 1, 545:7 538:22, 538:24, 539: 13 535:25 547:21, 547:24, 549:6, sidebar [21 - 543:23, 544:2 statement [3J - 491 : 1,

ROBERT [11 - 489:7 549:12 sides [11 - 533:8 492:13, 507:9 role [21 - 504:17, 531 :23 sending 141 - 499:20, 500: 1, sign [11- 528:24 statements [11 - 534:2 room 141- 499:13, 507:18, 549:4 signs [11 - 492:3 STATES [2] - 489:1, 489:12

517:14, 519:7 sense [111- 497:16, 498:23, sllently 111 - 506:6 States [11 - 489:5 rules [2] - 531 :14, 539:18 499:3, 499:22, 501:9, similari21 - 541 :6, 541 :7 stemming [11 - 525:3 running [11 - 515:20 501:14, 501:22, 505:16, simple 111 - 491 :21 stenography [11 - 489:24 runs [11 - 501 :5 517:8, 517:20, 526:17 slmply[2]- 501:15, 532:21 sticks [2] - 514:19, 522:20

sent [3] - 500: 18, 501 :24, sitting [-4] - 501:3, 504:19, stiff[11- 515:17 s 549:8 507:25, 515:24 still [3]- 507:2, 517:17, sales 16J - 491 :25, 499: 13, separately [21 - 536:5, six [31- 515:25, 522:19, 554:25

517:15, 518:15, 519:7, 536:18 549:22 stipulated [2] - 522:1, 533:24 519:8 September[12J - 493:7, slightly[2]-503:10, 533:10 stop [11 - 546:25

salesperson [2] - 517:12, 499:8, 500:2, 500:16, small [2] - 521:23, 535:8 store [11 - 504:6 517:13

501:17, 501:21, 513:15, smoke[2]- 516:3, 518:2 story [9] - 508: 1, 510:9, SAMAN™A [1J - 489: 19

517:3, 517:9, 518:17, smoking [3J - 502:22, 511 :6, 511 :9, 511 :10, sanitizers [51 - 522: 13,

518:20 513:15, 516:2 514:6, 521:1, 524:25 522:15, 529:4, 529:7

serious [11- 505:13 sole [2] - 531 :22, 537:5 sbicken [11- 534:4 sat [2] - 506:6, 507:1

services [4] - 509:20, solely [2]- 535:13, 537:10 sbike [11 - 498:2 satisfied [11 - 547:1

515:18, 517:11, 538:20 solicited 111- 517:15 stripped [2]- 503:23, 505:14 save [11-491:7

set[2]-511:15, 548:13 someone [111- 491 :7, strive [11- 504:18 setting [1] - 541 :15 491 :10, 496:1, 497:17,


11

students131-510:10, 525:9, team [11- 549:19 553:18, 553:20, 554:1, truly [1] - 543:20 554:20 tears [11 - 491 :1 O 554:5, 554:9, 554:11, trusted [2] - 491 :22

students' [2] - 509:25, TECHNOLOGY111- 489:7 554:14, 554:16, 554:20, truth [8] - 490:19, 492:7, 510:10 ten [5] - 527:16, 529:22, 554:25 492:17, 496:20, 497:16,

stuff[2] - 523:10, 548:18 529:25, 530:2 therapist.I [1J - 512:14 509:6, 515:9, 527:5 stunning [1] - 508:11 ten-minute 111 - 529:22 thereafter[1J- 514:25 truthful [1J - 493:19 stupid [11- 514:2 term 111- 509:21 therefore [4J - 501 :3, 535:7, try [7] - 496:23, 504:7, 516:3, subject [11 - 543:2 terminate [15] - 495:5, 535:9, 538: 1 518:2, 527:13, 528:6, subject.I 111 - 528:1 498:18, 499:11, 499:18, third [2] - 491 :6, 531 : 18 543:21 submit111- 506:16 503:8, 517:8, 536:25, Thompson [11 - 489: 16 trying 151 - 491 :7, 492:10, subpoena [2] - 527:23, 537:4, 537:8, 537:10, three [18] - 491 :2, 504:4, 502:4, 527:13, 527:17

527:24 537:21, 537:23, 538:6, 504:16, 508:19, 509:11, tuition [11 - 509:25 substantive 111 - 492:9 551:13, 551:19 509:14, 510:18, 511 :14, tum 111 - 525: 16 subatitute[11- 537:15 terminated [16] - 499:2, 511:16, 511:21, 511:23, two [241 - 491 :24, 492:20, subtract [11 - 492:20 506:24, 507:4, 509:20, 512:4, 522:9, 523:12, 495:2, 497:20, 508:20, suddenly [11 - 501 :24 509:22, 514:1, 514:21, 523:16, 531:12, 540:3 511: 1, 511 :3, 511 :4, suffer[2]- 504:1, 519:9 515:8, 516:10, 519:4, throughout [11 - 522: 15 511:10, 511:12, 511:20,

suffered [3J - 492: 12, 505:5, 521 :8, 523:9, 525:2, throw[1J- 522:19 512:3, 513:9, 517:24,

523:20 529:15, 535:17 throwing 111 - 508:9 518:23, 519:7, 522:9,

suffering [11- 540:15 terminating [11- 535:24 timeline [2] - 516:22, 516:23 524:21, 535:25, 540:2,

sufficient [3] - 521 :5, 537:7, termination [121 - 492:6, Up [2J - 503: 10, 533:9 549:22, 554: 13, 554: 15

541:18 492:10, 495:12, 496:4, utle [1J - 535:14 two-page [11 - 517:24

suggest [11 - 507:4 496:5, 498:21, 500:13, today [7] - 508:25, 509: 10, type 131 - 497:2, 497:3, 540: 1

suggestion [11 - 539: 16 520:13, 526:18, 527:1, 510:13, 510:15, 520:22, typo [11 - 513:7

Suite 111 - 489:23 539:8, 539: 1 o 521:7, 521:12

sum 111 - 542: 15 terminations [11 - 496:23 together [41 - 514:3, 518:22, u summation 141 - 505:9, test [1] - 508: 14 536:9, 546:4

uHlmately [2] - 491: 11, 507:2, 507:8, 524:11 tested [2]- 508:13, 511:8 took [8] - 492:16, 493:16,

summations 121 - 490: 14, testified [41-491:11, 493:11, 494:12, 499:4, 508:17, 495:13

490:16 493:13, 527:18 516:17, 519:3, 533:6 unable [11- 533:11

summer [21 - 508:5, 511 :3 testifies [11 - 496:2 total [1] - 543:17 unanimous [3]- 543:15,

sums 111- 543:19 testify [31 - 513:22, 528:23, touching [11- 543:2 543:17, 543:18

supervisor [2J - 515:13, 535:9 tough [2] - 524:2, 524:3 unbelievable[1J- 516:7

515:24 testifying [11 - 534: 16 toward [1] - 541 :19 uncontradlcted [11- 509:12

support [6] - 496:8, 500:7, testlmony[28] - 490:17, towards [2] - 503:7, 537:8 uncontroverted [2] - 503:17,

512:14, 518:7, 518:14, 491:22, 493:17, 495:25, trained [1J - 508:17 509:11

526:7 496:20, 498:4, 498:8, training [2] - 497:2, 497:4 under [101- 493:13, 526:2,

supports [11 - 533:5 503:17, 504:8, 506:4, Transcript [11 - 489:25 526:16, 536:1, 536:2,

suppose [11 - 501 :4 507:17, 519:13, 520:3, transcript [61 - 494:13, 536:14, 536:20, 537:17,

supposed [6J -495:18, 525:12, 533:21, 534:3, 497:24, 511 :11, 511 :15, 538:21, 538:24

498:5, 509:9, 543:10, 534:7, 534: 10, 534:11, 518:1 underlined 111 - 511 :4

543:11, 543:12 534:19, 534:21, 534:24, TRANSCRIPT [11 - 489: 11 undue [1J - 504:25

surfaced [1J - 507:15 534:25, 535:2, 535:12, trap [1] - 513:4 u nfalr [11 - 537: 11

surprised [11 - 494:8 542:17, 546:17, 546:21 trauma [3] - 512:8, 512:9 UNITED 121 - 489: 1, 489: 12

surprising [11 - 497: 1 tests [1] - 497:8 treatment [11 - 520:23 United 111 - 489:5

surprlslngly [11 - 519:24 lliE [56] - 489: 12, 490:2, Trlal [11 - 490: 1 university [11- 522:15

swears 111 - 492:3 490:5, 490:10, 490:13, trial [7] - 493: 11, 497:24, unlawful [3] - 535:20,

sword [11 - 517:7 505:8, 506:21, 523:2, 503:9, 509:11, 518:1, 537:25, 538:4

swore 111 - 492:7 525:18, 525:21, 529:18, 526:24, 541 :25

unlawfully [2] - 503:24,

529:22, 531:1, 531:7, 535:16 sworn [41 - 492: 1, 533:20,

545:3, 545:6, 546:2, 548:5, TRIAL [11 - 489:11

unless [11 - 539:6 542:11, 542:14 trials [11 - 549:22

sympathetlc[1J- 519:18 548:7, 548:12, 548:14, trick [3] - 508:23, 509:7,

unsatlsfactory[2J- 517:1,

548:17, 548:25, 549:3, 518:24 sympathy[4J- 532:12,

549:8, 549:12, 549:15, 518:3

untrue[1J- 528:4 532:14, 537:14, 541 :19 550:1, 550:4, 551:2, 551:6,

tricks [11- 510:12 unwise [1J -538:2

system [3] - 508: 19, 508:21, 551:9, 551:16, 551:22, tried [6J - 493: 1, 500:4,

UPl36]-492:15, 492:16, 510:18 552:4, 552:8, 552:12,

500:12, 523:23, 528:15, 492:17, 492:22, 493:9,

528:19

T 552:13, 552:20, 552:23, tries [3] - 492:20, 502:14,

494:24, 504:21, 508:1, 553:1, 553:4, 553:7, 528:5

508:15, 508:21, 508:22,

table 111- 504:19 553:10, 553:13, 553:16, true [2J - 507:15, 528:18

509:2, 509:19, 510:18,


12

511:9, 511:25, 512:5, 499:15, 506:6, 514:16, 525:25, 527:9, 546:15 513:1, 513:5, 514:4, 514:6, 520:21 wrlleS (3] - 520:6, 521:5, 515:17, 517:9, 517:13, waakand [1J - 504:15 521 :11 518:12, 519:20, 521 :1, weeks [6J - 492:5, 500:24, writing 141- 515:25, 527:10, 521:19, 522:25, 523:10, 526:18, 549:23, 554:13, 543: 1, 543:3 524:17, 524:25, 526:1, 554:15 written [31 - 501 :2, 518:20, 543:19 weighs [11 - 533: 1 O 529:7

user [11 - 528:7 weight [41 - 531 :24, 533:2, wrongful 111 - 541 :7 usual [11 - 520:5 535:12, 535:13 wrote (1] - 498:2

Waatbury111- 515:19 v WEXLER[11-489:12 y

vacation [3] - 499:15, whatsoever [2] - 507:4, year[10J - 492:13, 492:19,

524:8 499:25, 529:9 wholel4J-495:16, 513:21,

496:11, 506:4, 506:15, Valla [41 - 511 :1, 511 :3, 508:20, 510:24, 511:24,

511 :6, 511 :21 524:18, 528:11 512:4, 523:5

verdict 1321 - 505: 11, 506: 10, wife [13] - 503:20, 503:21,

years [19] - 508: 15, 508: 19, 529:20, 536:5, 540:6, 504:8, 504:12, 504:15,

508:20, 510:18, 511 :2, 540:10, 543:8, 543:15,

508:13, 511:7, 511:13, 511:3, 511:4, 511:10,

547:15, 547:17, 547:20, 511:19, 511:23, 512:2, 511 :12, 511 :14, 511 :16,

548: 1, 548:5, 548:20, 512:3, 528:8 511 :20, 511 :22, 511 :23,

548:23, 549:4, 549:17, WIGDOR [28J - 489: 15, 512:3, 512:4, 515:4,

551 :4, 551 :5, 551 :7, 551 :9, 490:3, 490:24, 505:10, 518:23

552:15, 552:18, 552:21, 525:16, 525:19, 525:22, YORK [2] - 489: 1, 489:7

552:24, 553:2, 553:5, 529:19, 545:2, 545:4, York [7] - 489:6, 489:17,

553:8, 553: 11, 553: 14, 548:6, 548:8, 548:10, 489:21, 489:23, 515:19

554:3 548:13, 548:15, 548:23, young 111-504:16

versus [21 - 493:8, 525:5 549:1, 549:7, 549:11,

yourself [1J - 498:12 549:14, 549:18, 554:6, victim [41 - 491 :6, 491: 12,

554:10, 554:15, 554:18, yourselves [11 - 542:3 515:15

554:24 views 111 - 542:5 violated [11 - 541 :1

WigdOr[1J-489:16

violation 121 - 535:18, 539:12 WIGDOR: 111 - 555: 1 WILLEMIN [11- 489:15

virtue [11 - 506:24 win [1J-533:4

virus [2] - 512:10, 512:15 windows [1J- 505:20

Visconti 16J - 508:5, 508:24, 509:8, 513:21, 513:25,

wish [2J - 542:17, 542:20

526:21 witness [131- 492:16,

Visconti's [11 - 495:25 494:25, 534:16, 534:17,

VOIC8(2]-497:10, 506:19 534:23, 534:24, 535:4, 535:13, 546:13, 546:15,

voluntartly [11 - 512:21 546:19, 546:20

vote [1] - 547: 11 witness's [8]- 534:13,

w 534:14, 534:15, 534:19, 534:23, 535: 1

wages [21- 539:25, 540:16 witnessed 121 - 491 :21, wait [2] - 553:22, 553:23 496:18 waiting [31 - 490:3, 491 :2, wltnasaas [BJ -490:18,

549:10 506:7, 509:4, 518:21,

waitress [11 - 496:2 523:12, 532:25, 533:21,

waive 121 - 502: 17, 528:25 534:25

walvar[1J- 502:13 woman [41 - 504:20, 508: 18,

walk151 - 505:19, 514:10, 515:11, 515:12

514:16, 514:20, 518:9 word 151 - 506:8, 506:9,

walked [2] - 494:6, 521:13 508:9, 543:25, 549:24

walks [2] - 514:10, 519:22 words [41 - 498: 11, 508:7,

warranted [11 - 532:2 513:15, 522:6

wears [1J - 515:4 workforce [11- 523:17

wed [11 - 496:24 worth [11- 505:7

wedding [2] - 516:5 worthless [11 - 504:5

weak 16J - 491 :2, 499:14, write [5] - 493:12, 493:14,


1

2


3 -------------------------------X ANTHONY BAFFO,

4 CV-10-1245 (LOW)

5 Plaintiff,

476





10 Defendants. 2:30 p.m.

11

12

13



14 APPEARANCES:

For the Plaintiff:

For the Defendants:



DOUGLAS P. CATALANO, ESQ. NEIL G. SPARSER, ESQ. SAMANTHA BELTRE, ESQ. Fulbright & Jaworski 666 Fifth Avenue New York, New York 10103


15

16

17

18

19

20

21

22

23

24



Paul J. Lombardi. RMR. FCRR Official US District Court Reporter


1

2

3 charge.

CHARGE CONFERENCE

477

(Trial resumes.)

THE COURT: I have given out my requests to

4 We have gone over the objections informally and

5 now the attorneys are going to put their objections on the

6 record.

7 We'll start with the plaintiff.

8 MR. WIGDOR: I have no objection to the

9 disability discrimination claim on page one and two,

10 motivating factor on page three.

11 On page four, the employer's judgment, it says

12 the first sentence says the law allows an employer in the

13 facts of this case to decide to terminate an employee for

14 any reason or no reason.

15 I would suggest that we should take out the

16 facts of this case because it seems to imply that you are

17 saying that it's okay.

18

19

20

21

22

THE COURT: Okay.

MR. CATALANO: No objection.

THE COURT: I agree.

Let's take it out.

MR. WIGDOR: On page four, the last paragraph,

23 I'm not sure it should be apostrophe Sor S apostrophe,

24 defendants, I think it's S apostrophe on both.

25 Just a small issue, but you are going to say it.

PAUL J. LOMBARDI. CERTIFIED REALTIME REPORTER Official Court Reporter


CHARGE CONFERENCE

478

1 They don't get a copy of it.

2

3

4 both.

5

6

THE COURT: They do.

MR. WIGDOR: Then it should be S apostrophe on

THE COURT: Okay.

MR. WIGDOR: Then on page five I think we agreed

7 to the language, the additional language.

8

9

10

11 argument

12

13 paragraph.

14

15

16

17

18

19

THE COURT: Okay.

Page six.

MR. WIGDOR: Page six we abandoned the

THE COURT: The second sentence in the first

MR. WIGDOR: Correct.

THE COURT: Is out.

MR. WIGDOR: That's right.

THE COURT: Everything else stays.

MR. WIGDOR: Everything else stays.

THE COURT: Except where we are taking out the

20 name of Mr. Aubrey.

21

22

23 later.

MR. WIGDOR: Okay.

THE COURT: For the reasons I will discuss

24 MR. WIGDOR: No problem with pages seven, eight

25 or nine.



CHARGE CONFERENCE

479

1 Page ten, punitive damages, this was included in

2 a prior charge where I was before your Honor.

3

4

THE COURT: Yes.

MR. WIGDOR: Where the second paragraph, second

5 sentence, after the second sentence, I would like to add

6 to the end of that sentence, and to deter others from

7 similar wrongful conduct in the future.

8

9

THE COURT: And to deter.

MR. WIGDOR: Others from similar wrongful

10 conduct in the future.

THE COURT: Okay.

MR. WIGDOR: And in the last paragraph -

MR. CATALANO: That one, Judge, I object.

THE COURT: Okay.

11

12

13

14

15 MR. WIGDOR: In the last paragraph, the second

16 sentence says plaintiff's damages must bear a reasonable

17 relationship to plaintiff's actual injury.

18 I think there it should say including economic

19 and/or compensatory damages.

20

21

THE COURT: It can't be --

MR. WIGDOR: The reason why is you already

22 instructed them that you are going to decide economic

23 damages.

24 But for punitive damages, they are allowed to

25 consider all the damages. For instance, if they were to



CHARGE CONFERENCE

480

1 conclude there were no compensatory damages, but there

2 were economic damages, they could award punitive damages

3 under portions of that.

4

5

THE COURT: Denied.

MR. WIGDOR: Okay.

6 And then your Honor indicated that in the

7 general instructions there is an instruction about the

8 witnesses' credibility?

9

10

THE COURT: Yes.

MR. WIGDOR: That's fine.

11 And then the only two other issues are the Rule

12 50 motion and the city charge.

13

14

15 that.

16

17

18

19

THE COURT: Yes.

MR. WIGDOR: I don't know how you want to take

THE COURT: Take the city charge.

MR. WIGDOR: Okay.


MR. WIGDOR: Should I wait for Mr. Catalano or

20 should I start?

21

22

THE COURT: You can start.

MR. WIGDOR: Your Honor, the defendants seek to

23 reap the benefits of a claimed resident of New York City,

24 but they are asking your Honor to hold him harmless for

25 violating New York City Human Rights Law, despite the fact



CHARGE CONFERENCE

481

1 that the law on its face is explicitly supposed to protect

2 New York City residents, regardless of where the

3 employer's location is.

4 So the New York City Human Rights Law and I'm

5 quoting, states, that prejudice, intolerance, bigotry and

6 discrimination threaten the rights and proper privilege of

7 the city's inhabitants, and that in the City of New York

8 there is no greater danger to health, moral safety and

9 welfare of the city and its inhabitants and it goes on.

10 So on the face of it, it applies to inhabitants.

11 There is no question Mr. Baffo is an inhabitant of New

12 York City.

13 THE COURT: Can the city pass laws affecting

14 parts of the country which has no jurisdiction on it?

15 MR. WIGDOR: It can.

16 In fact, the New York State Human Rights Law has

17 been applied uniformly to New York City --

18

19

20

21

THE COURT: That's New York State.

MR. WIGDOR: New York State residents.

THE COURT: Yes.

MR. WIGDOR: It has an extraterritorial

22 application.

23 The reason in this case there would be no due

24 process violation at all is the testimony has been that 20

25 to 30 percent of the revenues of the $200 million revenues



CHARGE CONFERENCE

482

1 were attributable to their operation in Manhattan, to

2 their Manhattan college campus which is significant, your

3 Honor.

4 That's, according to my math, maybe $40 to $60

5 million per year of revenues generated from the Manhattan

6 campus. Obviously the impact of any compensatory damages

7 that Mr. Baffo suffered occurred while he was living in

8 New York City as well.

9 The leading case, the Hoffman v Parade

10 Publications, which is a New York Court of Appeals case

11 itself, said, quote, it is clear from the statute's

12 language that its protections are afforded only to those

13 who inhabit or are persons in the City of New York.

14 So that case then went on to talk about, which

15 Judge Spatt's decision went on to talk about what happens

16 in a case where you have a noncity resident and whether

17 there is an impact in the city. That analysis does not

18 apply where you have a city resident, such as Mr. Baffo.

19 THE COURT: So you mean your former judge was

20 wrong.

21 MR. WIGDOR: With all due respect to

22 Judge Spatt, I believe he got it wrong.

23 He misapplied the statute as well as the Hoffman

24 case, and what I would ask the court to do is -- because

25 it is an important issue in that nobody has explicitly



CHARGE CONFERENCE

483

1 really recognized.

THE COURT: Okay. 2

3 MR. WIGDOR: Because it won't change the charge,

4 but to let the jury come back with its verdict, and let us

5 brief this issue further and at that point to render a

6 written decision because it is an important decision.

7

8

THE COURT: What do you say to that?

MR. SPARBER: I say that we respectfully

9 disagree, that Judge Spatt in that case got it right, and

10 your Honor -- we believe Hoffman is not inconsistent.

11 Hoffman is not limited the whether or not the

12 person is a resident, but it begged the question whether

13 it should be applied where the impact was not in the City

14 of New York.

15 THE COURT: I'm keeping it out. It's on the

16 record.

17 Anything else?

18 MR. WIGDOR: I think he wanted to make a Rule 50

19 motion.

20

21

THE COURT: Yes.

MR. SPARBER: We would respectfully make a Rule

22 50 motion in connection with an objection to the first

23 jury charge where we would respectfully disagree that

24 having HIV is a per se disability under the ADA.

25 That cases have held, the Supreme Court as well



CHARGE CONFERENCE

484

1 as a decision by Judge Lynch, that there has to be some

2 impairment to one's life's major activities, major life's

3 activities, and HIV has been deemed to be an impairment

4 upon the ability to reproduce, Judge.

5 This case is different, though, because there

6 was testimony on the record that Mr. Baffa has a vasectomy

7 in 2004, I believe it is, and as the Southern District

8 says where there is an alternate reason whereby a person

9 cannot procreate, having nothing to do with HIV, that

10 person's major life activity of reproduction is not

11 impaired by virtue of the HIV.

12 There was testimony on the record that it hasn't

13 impacted at all upon his ability to work, work being very

14 large category, the fact that he may not be able to work a

15 specific shift, he's worked at Applebee's ever since

16 December of 2009, I believe.

17 He's worked without any impairment. He

18 testified that he had no impairment with respect to

19 walking, talking, whatever we normally think of as a

20 disability. Under the ADA his wife corroborated his

21 testimony. There has been medical evidence to that

22 effect.

23 Therefore, we would contend that he's not

24 disabled or at least a jury should have the opportunity to

25 decide.



1

2

CHARGE CONFERENCE

THE COURT: You want to respond?

MR. WIGDOR: I do.

485

3 The definition of a disability under the ADA is

4 a physical or mental impairment that substantially limits

5 one or more major life's activities of such an individual

6 and that's at 42 USC 12102(1).

7 And what the defendants are missing is that a

8 major life activity is defined to include functions of the

9 immune system.

10

11

THE COURT: Of what?

MR. WIGDOR: Functions of the immune system,

12 which there is an abundance, in addition to reproductive

13 functions.

14 A major life activity includes immune system and

15 the courts have held, especially since the amendments to

16 the ADA

17 THE COURT: It still doesn't restrict his

18 ability to work in any way.

19 MR. WIGDOR: It doesn't matter, your Honor,

20 because the major life activity is the immune system.

21 Work is another major life activity, but the

22 immune

23

24 is.

25

THE COURT: I'm allowing it to go to the jury as

MR. WIGDOR: Okay.



1

2

CHARGE CONFERENCE

THE COURT: You have another motion.

MR. SPARBER: The second motion is a Rule 50

3 motion in connection with one of the individual

4 defendants, Leonard Aubrey.

5 In this case, Judge, there have been no facts

486

6 adduced during the trial and, in fact, it was specifically

7 stated at page 211 and 212 of the record that he knows of

8 no facts on which he's basing his claim against Leonard

9 Aubrey.

10 And I would respectfully move that Mr. Aubrey be

11 dismissed as an individual defendant.

12 MR. WIGDOR: I don't have the trial transcripts

13 in front of me, your Honor, but I recall the question

14 being other than the conspiracy, which we have been

15 alleging the entire time, the conspiracy between him and

16 the defendant Mr. Rizzuto.

17 I brought that out. Obviously I couldn't call

18 adverse witnesses in my case in chief, but in their case

19 through cross-examination I was able to elicit that

20 Mr. Aubrey said in his deposition that he couldn't recall

21 how he was told by Mr. Rizzuto that Mr. Baffa was HIV

22 positive.

23 Then he comes into the court and he tells the

24 jury that he recalls that on October 23rd, Mr. Baffa came

25 in with shock on his face, to his office, and now he



CHARGE CONFERENCE

487

1 knows, you know, how and when he was told that. It's a

2 complete contradiction. I would call it a lie.

3 And, in my view, that is clearly enough for the

4 jury to consider whether he was part of this aiding and

5 abetting of discrimination, and I would ask your Honor

6 that --

7 THE COURT: Let it go to the jury and make a

8 decision after, denied.

9

10

11

12

13

MR. WIGDOR: Admittedly it's a close call.

I agree it's a close call.

THE COURT: That's our life.

We make close calls all the time.

MR. WIGDOR: I think it would save potentially a

14 retrial on his claim if we would give it to the jury and

15 reserve your decision until after the verdict.

16

17

18

THE COURT: Motion granted.

Dismissed.

MR. SPARBER: Judge, one more under the omnibus

19 Rule 50 motion in that your Honor has said in the previous

20 cases, the question is whether a rational juror could find

21 based upon the facts presented there is enough to go to

22 the jury.

23

24

25

THE COURT: Denied.

MR. WIGDOR: That's it.

THE COURT: That's it.



1

2

3

4

5

6

See you tomorrow at 9:30.


THE COURT: You had some other things.

MR. WIGDOR: I included them.

Everything's included.

THE COURT: See you tomorrow.

7 (Whereupon, the trial was adjourned until

8 Tuesday, June 12th, at 9:30 a.m.)

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


488


1

$ ability [31 - 484:4, 484: 13, BEFORE [11- 476:12 correct [11- 478:14 485:18 begged [11 - 483: 12 corroborated [11 - 484:20

$200 [11 - 481 :25 able [2]- 484:14, 486:19 BELTRE 111 - 476:20 country[1J-481:14 $40 [11-482:4 abundance [11 - 485: 12 benefits [1] - 480:23 Court [3] - 476:22, 482: 10, $60 [11 - 482:4 according [11 - 482:4 between [11- 486:15 483:25

1 activities [3) - 484:2, 484:3, bigotry [11 - 481 :5 court 121 - 482:24, 486:23

485:5 brief [1] - 483:5 COURT [«J - 476:1, 476:12,

100 [11- 476:23 activity [5J - 484: 10, 485:8, brought [11 - 486: 17 477:2, 477:18, 477:20,

10003 [11- 476:17 485:14, 485:20, 485:21 478:2, 478:5, 478:8,

10103 [1] - 476:21 actual [11- 479:17 c 478:12, 478:15, 478:17,

11 [11 - 476:9 ADA [41 - 483:24, 484:20, campus [2] - 482:2, 482:6

478:19, 478:22, 479:3,

11722 [11 - 476:23 485:3, 485: 16 479:8, 479:11, 479:14, cannot [11 - 484:9 479:20, 480:4, 480:9, 1180 [1] - 476:23 add [11- 479:5

12102(1) 111-485:6 addition [11 - 485:12 capacities [2] - 476:8, 476:9 480:13, 480:16, 480:18,

additional 111 - 478:7 case [13] -477:13, 477:16, 480:21, 481:13, 481:18, 12th [1] - 488:8 481 :23, 482:9, 482:10, adduced 111 - 486:6 481:20, 482:19, 483:2,

2 adjourned [11 - 488:7 482:14, 482:16, 482:24, 483:7, 483:15, 483:20,

admlttedly [11 - 487:9 483:9, 484:5, 486:5, 485:1, 485:10, 485:17,

20 [11 - 481 :24 adverse [1J - 486: 18 486:18 485:23, 486:1, 487:7,

2004 [11 - 484:7 affecting [11- 481 :13 cases [2J - 483:25, 487:20 487: 11, 487: 16, 487:23,

2009 [1] - 484:16 afforded [11 - 482:12 CAT [11 - 476:25 487:25, 488:3, 488:6

2012 [1] - 476:9 agree [2] - 477:20, 487:10 Catalano [1]-480:19 Courthouse [1J - 476:5

211 [11 - 486:7 agreed [1J - 478:6 CATALANO [41- 476:19, courts [1J - 485:15

212 [11- 486:7 ahead [11- 480:18 477:19, 479:13, 488:2 credibility [11 - 480:8

23rd [1] - 486:24 aiding [11 - 487:4 category [11 - 484:14 cross [11- 486:19

2:30 [11- 476:10 alleging [1J - 486: 15 Central 121 - 476:6, 476:23 cross-examination 111-

allowed [11-479:24 change [11 - 483:3 486:19

3 allowing [11- 485:23 charge l8l - 477:3, 479:2, CV-10-1245 [11- 476:4

480:12, 480:16, 483:3, 30 [1] - 481 :25 allows [11-477:12 483:23 D alternate [1] - 484:8

amendments [1J - 485: 15 chlef[11- 486:18

4 clty[61-480:12, 480:16, damages [10]-479:1, analyala [11- 482:17 481:9,481:13,482:17, 479:16, 479:19, 479:23,

42 [1] - 485:6 ANTHONY [11 - 476:3 482:18 479:24, 479:25, 480:1,

5 apostrophe [41 - 477:23, City [1 OJ - 480:23, 480:25, 480:2, 482:6

477:24, 478:3 481 :2, 481 :4, 481 :7, danger[1J - 481:8

50 [5] - 480:12, 483:18, Appeals [1] -482:10 481 :12, 481:17,482:8, December [11 - 484:16

483:22, 486:2, 487:19 APPEARANCES [1] - 476:14 482:13, 483:13 decide [3] - 477:13, 479:22, Applebee's [11-484:15 city's [11 - 481 :7 484:25

6 appllcatlon 111- 481 :22 claim [3] - 477:9, 486:8, decision [6] - 482: 15, 483:6, applied [2] - 481:17,483:13 487:14 484:1, 487:8, 487:15

631 [2] - 476:23, 476:23 applies [1J - 481 :10 clalmed [11 - 480:23 deemed [11 - 484:3 666 [11 - 476:21 apply [11 - 482: 18 clear [11 - 482: 11 defendant [2] - 486:11,

argument [11- 478:11 clearly [11 - 487:3 486:16 7 attomeya [1J - 477:5 close [3] - 487:9, 487: 10, defendants [4] - 4 77:24,

712-6106 [1] - 476:23 attributable [11- 482:1 487:12 480:22, 485:7. 486:4

712-6122 [11- 476:23 Aubrey151-478:20, 486:4, college [11 - 482:2 Defendants [2] - 476:10, 486:9, 486: 10, 486:20 compensatory [31- 479:19, 476:19

8 AUBREY [11- 476:8 480: 1, 482:6 defined [11 - 485:8 Avenue121-476:16, 476:21 complete [1J - 487:2 definition [11 - 485:3

85 [11- 476:16 award [1J - 480:2 conclude [11 - 480: 1 denied [3) - 480:4, 487:8,

conduct121- 479:7, 479:10 487:23 9 B connection [2] - 483:22, deposition [11 - 486:20

9:30 [2] - 488:1, 488:8 Baffo l8l - 481 :11, 482:7, 486:3 despite [11 - 480:25

482:18, 484:6, 486:21, conalder121- 479:25, 487:4 deter[2] - 479:6, 479:8

A 486:24 conapiracy121- 486:14, different [11 - 484:5

BAFFO [1] -476:3 486:15 dlsablllty [41 - 477:9, 483:24, a.m 111 - 488:8 484:20, 485:3

based [11 - 487:21 contend 111 - 484:23 abandoned [11-478:10 contradiction [11 - 487:2 disabled [11 - 484:24

basing [11 - 486:8 abetting 111 - 487:5 bear[1J-479:16 copy[1J- 478:1 disagree [2] - 483:9, 483:23


discrimination [3] - 477:9, 481 :6, 487:5

discuss [11- 478:22

dismissed 121 - 486: 11, 487:17

DISTRICT [3] - 476:1, 476: 1, 476:12

District 111 - 484:7 DOUGLAS [2] -476:15,

476:19 due [2] - 481 :23, 482:21

during 111 - 486:6

G general [11- 480:7 generated [11 - 482:5 given [1] -477:2

granted 111 - 487: 16 greater [11- 481 :8

issue [3] - 477:25, 482:25, 483:5

issues [1] -480:11

itself[1J - 482:11

482:5 math [11 - 482:4

matter111- 485:19

mean [1J -482:19 ,__ ________ __, mechanical [11- 476:24

J medical [11 - 484:21 ,__ ________ __, mental 111- 485:4

-------------1 Jaworski [1] - 475=20 MICHAEL (1] - 476:15

H judge 121 - 482: 19, 487: 18 mllllon [2] - 481 :25, 482:5 1--------------1 JUDGE 111- 476:12

Judge [7] - 479: 13, 482: 15, misapplied [11 - 482:23 harmless [11 - 480:24 health 111- 481 :8 held [2J - 483:25, 485:15

missing [11 - 485:7 482:22, 483:9, 484:1,

moral 111 - 481 :8 484:4, 486:5 ,__ ________ __, HIV[51 - 483:24, 484:3,

E 484:9, 484: 11. 486:21

judgment[11 _477:11 motion IBJ -480:12, 483:19,

EASlERN [1] - 476:1 economic [3]- 479:18,

479:22, 480:2 effect [1] - 484:22 eight[1J-478:24

elicit [11- 486:19 employee [11-477:13

employer[1J - 477:12 employer's 121 - 477: 11,

481:3 end [11 - 479:6

entire 111 - 486: 15 especlally111- 485:15 ESQ [5J - 476:15, 476:15,

476:19, 476:19, 476:20 evidence [11 - 484:21 examination 111 - 486: 19

except[1J-478:19 expliciUy [2] - 481: 1, 482:25

extraterrltorlal [11 - 481 :21

F face131-481:1, 481:10,

486:25 fact (4] - 480:25, 481 : 16,

484:14, 486:6

factOr[11- 477:10 facts [5] - 477:13, 477:16,

486:5, 486:8, 487:21

Fax 111 - 476:23

FCRR [11 - 476:22 Federal [11- 476:23 Fifth 121 - 476:16, 476:21 fine [11- 480:10 first 131 - 477:12, 478:12,

483:22 five [11 - 478:6 former[1J - 482:19 four121-477:11,477:22

front [11- 486:13 Fulbright [11 - 476:20

functions 131 - 485:8, 485:11, 485:13

future [2J - 479:7, 479:10

Hoffman [41 - 482:9, 482:23, 483:10, 483:11

hold 111 - 480:24 Honor110]-479:2, 480:6,

480:22, 480:24, 482:3, 483:10, 485:19, 486:13, 487:5, 487: 19

June l21 - 476:9, 488:8 483:22, 486: 1, 486:2,

Jurisdiction [11 - 481 :14 485:3• 487

: 16

• 457

=19

juror111

_487:20 motivating [1] - 477:10 move [11- 486:10

jury[10J -476:12, 483:4, MR 477 8 477 19 483:23, 484:24, 485:23, 1431 - : ' : •

::~:~:: ::;:~2 487:7, :~~~: :;:~!~~:~:~~:: K HONORABLE [11- 476:12

Human 131 - 480:25, 481 :4, 481:16 keeping [1]-483:15

1--------------1 knows 121 - 486:7, 487:1

479:4, 479:9, 479:12, 479:13, 479:15, 479:21, 480:5, 480:10, 480:14, 480:17, 480:19, 480:22, 481:15, 481:19, 481:21, 482:21, 483:3, 483:8, 483:18, 483:21, 485:2, 485:11, 485:19, 485:25, 486:2, 486: 12, 487:9, 487:13, 487:18, 487:24, 488:2, 488:4

immune [51 - 485:9, 485:11, 485:14, 485:20, 485:22

Impact 131 - 482:6, 482: 17, 483:13

Impacted 111 - 484: 13 Impaired 111 - 484: 11 impairment 151 - 484:2,

484:3, 484:17, 484:18,

485:4 imply [11 - 477:16 Important 121 - 482:25, 483:6 Include [11 - 485:8 included [3] - 479:1, 488:4,

488:5 Includes 111 - 485: 14 including 111- 479:18 inconsistent[1J-483:10 Indicated [11 - 480:6 individual [5] - 476:8, 476:9,

485:5, 486:3, 486:11 Informally [11 - 477:4

inhabit [11 - 482: 13

inhabitant 111 - 481 : 11 inhabitants [3] - 481 :7,

481:9, 481:10

injury [11 - 479:17 instance [11- 479:25 INSTITIJTE [11- 476:7 instructed [11 - 479:22 instruction [11- 480:7 Instructions [11 - 480:7

intolerance [11 - 481 :5 Islip [21 - 476:6, 476:23

L language [3]- 478:7, 482:12 large [11 - 484:14

laat 131 - 477:22, 479: 12, 479:15

law[2]-477:12, 481:1

Law [3] - 480:25, 481 :4, 481:16

lawa111-481:13 LDW [1] - 476:4

leading [11 - 482:9 least 111 - 484:24 Leonard [2] - 486:4, 486:8 LEONARD 121 - 476:8,

476:12 lie [11 - 487:2 life (6] - 484: 10, 485:8,

485:14, 485:20, 485:21, 487:11

life's 131 - 484:2, 485:5 limited [11 - 483:11 limits [11 - 485:4 living [11 - 482:7

location 111 - 481 :3 Lomban:ll 111- 476:22 Lynch [1] - 484: 1

must[1J-479:16

N name [11 - 478:20 NEIL [1]-476:19

NEW [2J - 476:1, 476:7 New [20J - 476:6, 476:17,

476:21, 476:23, 480:23, 480:25, 481:2, 481:4, 481:7, 481:11, 481:16, 481:17, 481:18, 481:19, 482:8, 482:10, 482:13, 483:14

nine [1J -478:25 nobody [11 - 482:25 noncity [11 - 482:16 normally [11 - 484: 19 nothing [11 - 484:9

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1

2


3 -------------------------------X ANTHONY BAFFO,

4 CV-10-1245 (LOW)

5 Plaintiff,

489





10 Defendants. 9:40 a.m.

11

12

13



14 APPEARANCES:

For the Plaintiff:

For the Defendants:



DOUGLAS P. CATALANO, ESQ. NEIL G. SPARBER, ESQ. SAMANTHA BELTRE, ESQ. Fulbright & Jaworski 666 Fifth Avenue New York, New York 10103


15

16

17

18

19

20

21

22

23

24





1

2

3


(Trial resumes.)

THE COURT: We are bringing the jury in.

MR. WIGDOR: I think we are waiting for

4 Mr. Catalano.

5 THE COURT: Okay.

6 Be seated.


8 proceedings.)

9

10

11

12

13

THE COURT: Okay.

Bring in the jury.


THE COURT: Be seated. We will now have the

14 summations.

15 Remember what I said about openings, the same

490

16 thing applies to summations. What the lawyers say is not

17 evidence. The evidence is the documents, the testimony of

18 witnesses and what you believe is the evidence and the

19 truth.

20 Plaintiff goes first. Defendant goes second and

21 plaintiff gets a short rebuttal. I put limits on them.

22 Like everything else, we move it along.

23 Plaintiff, you are first.

24 MR. WIGDOR: Your Honor, opposing counsel,

25 Mr. Lombardi, ladies and gentlemen of the jury.




491

1 Since Mr. Catalano's opening statement, I have

2 been waiting a week to say three things.

3 First, Mr. Baffo is not a liar.

4 Second, the defendants did not bend over

5 backwards for Mr. Baffa.

6 Third, Mr. Rizzuto is not the victim in this

7 case. After trying to save someone who had just been hit

8 over the head with a bottle, and donating blood and

9 learning that he was HIV positive, and then confiding with

10 tears in his eyes in someone he thought was his friend and

11 ultimately been fired as a result, testified in this case

12 has shown that Mr. Baffo is the victim, the victim of

13 intentional discrimination, based upon his disability or

14 perceived disability. We have proven that Mr. Baffo's


16 factor that prompted the decision to fire him.

17 I want to thank you, the members of the jury,

18 for being attentive and for performing, on behalf of my

19 client, your civic duty as jurors. Let me say this, and I

20 don't say it lightly, Mr. Rizzuto is a liar, plain and

21 simple, and you have witnessed it firsthand. He can't be

22 trusted and his entire testimony cannot be trusted.

23 Defendants say that the reason that Mr. Baffo

24 was fired was to create two new jobs, mind you, one of the

25 jobs was never filled, the sales associate position. But,




492

1 first, Mr. Rizzuto outright lies in his sworn affidavit.

2 You will recall that's Exhibit 138, and in that affidavit

3 he signs it on the last page, he swears to it, to the

4 contents, and in this case you heard him say that it was

5 important that this affidavit, which was done just weeks

6 after the termination, that this affidavit should be

7 accurate and complete, and he swore to tell the truth as

8 to that.

9 But what you will see in the first substantive

10 paragraph trying to justify the termination, paragraph

11 seven, he says that in fiscal 2008, I gave Anthony control

12 of the de Seversky Center budget, and the center suffered

13 a $600,000 loss in that year. This is a false statement,

14 and he was asked at his deposition to explain how did you

15 come up with the $600,000? He said he didn't know.

16 Then he got up on this witness stand, took an

17 oath to tell the truth, and came up with some convoluted

18 answer that somehow in Exhibit 45 that clearly shows that

19 the year that he was in charge of the budget, 2008, there

20 was $150,000 profit, he tries to subtract these two

21 numbers between 2008 and 2009 and says that's how I came

22 up with the figure? The math doesn't even add up. And

23 that's not what he said in his deposition.

24 In his opening, Mr. Catalano said with respect

25 to the $600,000, that was wrong. That was a mistake. He




493

1 misread the financials. He lied, and he tried to lie to

2 make it look like Mr. Baffa was not performing well. He

3 lied in this affidavit.

4 And that's why we admitted Exhibit 45. This

5 Exhibit wasn't in the affidavit. There is no mention of

6 this in his affidavit. We also admitted Exhibit 46,

7 Exhibit 46 shows the financials in September 2008, and

8 2009, and October 2008 versus 2009, and these show that

9 things were moving up, the business was getting better.

10 Now, that wasn't the only lie. You will recall

11 that Mr. Rizzuto testified in this trial that he told

12 Mr. Baffo to write a memo. That's what he said, again,

13 under oath. He testified Exhibit 38 that he told

14 Mr. Baffo to write this memo about cost saving measures.

15 That's what he said.

16 You will recall that I took out his deposition

17 testimony and read it; did you ask Mr. Baffo to create it?

18 No. Not that I recall. I then asked him whether that was

19 a truthful answer. He said no. He's an admitted liar.

20 But he's not the only person that's lying.

21 Let's look at Mr. Aubrey. On direct examination I asked

22 Mr. Aubrey the following questions at page 453 --

23 actually, this was Mr. Catalano, sorry. He says at page

24 453 on direct:

25 Question: Now, on that morning did there come a




494

1 time that Mr. Rizzuto came to your office and, if so,

2 about what time?

3 Answer: I would say it was about -- Mr. Rizzuto

4 came to my office sometime 8 to 8:30 in the morning, in

5 that range.

6 Question: When he walked in, what did he say to

7 you?

8 Answer: He said he had a surprised look on his

9 face.

10 And then it goes on to say that's when he

11 disclosed that he was HIV positive. But then you will

12 recall cross-examination, page 459, I took out the

13 deposition transcript of Mr. Aubrey, and I read it:

14

15

16

17

18

19

20

21

Question: Do you recall what he told you?

Answer: Only that Anthony was HIV positive.

Question: And do you recall how he told you?

Answer: No.

Question: Was it a phone call?

Answer: I don't recall, exactly.

Question: Did he tell you in person?

Answer: Again, as I answered the question, I

22 don't recall exactly.

23 So here you have a person at his deposition who

24 doesn't recall how he was told, then he comes up on the

25 witness stand, not only does he recall how he was told, he




495

1 recalls that Mr. Rizzuto had a shocked look on his face.

2 So you have two people who are lying.

3 Defense counsel said to you in his opening that

4 he was going to prove to you that there are four people,

5 four people in August decided they were going to terminate

6 Mr. Baffa. It cannot be disputed in this case there was

7 never a decision made in August. There was no decision

8 made in August and the affidavit in this case makes no

9 mention of any discussion between these four people in

10 August either. Don't you think that would have been in

11 the affidavit?

12 The termination was not recommended and

13 ultimately approved until well after October 2nd, well

14 after Mr. Baffa had disclosed that he was HIV positive.

15 And you will see those exhibits. Plaintiff Exhibit 13,

16 that's dated October 16, 2008. By the way, this whole

17 thing about backdated, it is backdated. It's dated 2008.

18 It's supposed to be 2009.

19 But this memo says it's a request. I would like

20 to move forward. It's a request. Exhibit 81, my

21 recommendation is to eliminate. This is October 20th.

22 Exhibit 78, October 20th. I recommend the following.

23 These are all after, after Mr. Baffa has disclosed that he

24 was HIV positive.

25 As for Ms. Visconti's testimony, you have




496

1 someone who owes their entire career to Mr. Rizzuto, from

2 waitress to director, and then testifies when I questioned

3 her that she didn't even help Mr. Rizzuto with respect to

4 the termination. I had to break out Exhibit 102 and

5 Exhibit EI. She was clearly involved in the termination.

6 As for Mr. Redlich, did you see his body

7 language? He didn't want to be here. He had to come in

8 and support his boss, the boss who gave him a $7,000

9 raise. He wouldn't budge on that one. He thought it was

10 5 or 6, I had to show it was $7,000. That was a lot of

11 money. That was a 12 percent raise, folks, in the year

12 that they fired Mr. Baffo.

13 Then I have to pull out of him that he had a

14 friend, he reached out to a friend who wanted the job, and

15 what does he do? This is well after October 2nd, after

16 the decision apparently had been made, and he forwards

17 that resume to Mr. Baffo. All of this is classic pretext.

18 You have witnessed the inconsistencies in the defendant's

19 case, the inconsistencies and the falsehoods in their

20 testimony and their failure to tell the truth.

21 Mr. Rizzuto admits he had a script when he fired

22 his former friend and it is clear that there is a script

23 here to try to justify the terminations. Fortunately, you

24 are the finders of fact and you are not wed to that

25 script.




497

1 And this is not surprising. There was no

2 training of any type of discrimination at this place, or

3 Mr. Rizzuto, no disability discrimination, no type of

4 training, no policy, nothing.

5 So what this case all really comes down to,

6 folks, is it more likely than not that Mr. Baffo told

7 Mr. Rizzuto on October 1st that he had received a call

8 from a doctor that he wanted to see regarding some tests?

9 Is it more likely than not that Mr. Baffo called

10 Mr. Rizzuto and left a voice mail saying he got some

11 disturbing news?

12 By the way, Mr. Rizzuto was never even asked by

13 his own lawyer whether that happened or not. Is it more

14 likely than not on October 2nd that Mr. Baffo told

15 Mr. Rizzuto that he was HIV positive? I would ask you to

16 use your common sense and to listen for the ring of truth.

17 This is someone whom he considered to be a friend, someone

18 whom he shared personal things with and Mr. Rizzuto shared

19 personal things with.

20 And now comes what I believe to be the two most

21 important pieces of evidence that prove by a preponderance

22 of the evidence that Mr. Baffo did disclose that he was

23 HIV positive on October 2nd, and I think you know what I'm

24 talking about. At page 397 of the trial transcript I was

25 cross-examining Mr. Rizzuto, you will recall:




498

1 Question: Did you look for a memo that you said

2 you wrote -- strike that.

3 Page 397:

4 Question: Isn't it your testimony that on

5 October 23rd that was supposed to be the day that

6 Mr. Baffa was going to be fired, right?

7

8

Answer: Correct.

Question: Yet, isn't it your testimony that

9 when Mr. Baffa told you he was HIV positive you told him

10 to take off as much time as he needed?

11 Answer: I think my words were close to it, was

12 take the time that you need to take care of yourself.

13 And then I had to get it out of him:

14 Question: Didn't you tell him that if he needed

15 time off or whatever he needed to do?

16

17

Answer: I believe I did.

Question: So you told Mr. Baffa on the day you

18 were going to terminate him that he should take needed

19 time off.

20 Answer: I did.

21 This was on the day of the termination, and he's

22 telling Mr. Baffo to take needed time off, to take time

23 off. The only way that makes sense is if it happened on

24 October 2nd, and Mr. Baffa -- Mr. Rizzuto admits that at

25 page 349 when he met with Mr. Baffo on October 23rd that




499

1 what was in his mind was that he was going to be

2 terminated a half hour later.

3 So the only way that makes sense is if that

4 conversation took place on October 2nd. And the other

5 piece of evidence that I believe is so important in this

6 case is Exhibit 125. Exhibit 125 is an e-mail from

7 Mr. Rizzuto to Maureen Gaughran, the HR person, copying

8 Mr. Baffa dated September 29th, just a couple of days

9 before Mr. Baffo says he's HIV positive.

10 According to Mr. Rizzuto the decision's already

11 been made to terminate him, but this is what he does, he

12 says, I wanted to ask if you can put out ads for the

13 dining room captain and the sales assistant. It has been

14 approved by president this week. Anthony's going on

15 vacation next week so you can forward to me. Anthony will

16 send you all the information.

17 So they want to say there's this reorganization

18 going on, the decision's already been made to terminate

19 Mr. Baffa, yet here you have an e-mail from Mr. Rizzuto to

20 HR talking about sending out resumes, and sending out job

21 descriptions about these jobs. HR's in the dark on this

22 reorganization? That makes absolutely no sense.

23 HR then replies to the e-mail saying that,

24 please confirm the dates that Anthony's going to be on

25 vacation so I can send you the postings during his absence




500

1 and resume sending those to him when he returns. No

2 decision had been made as of September 29. This document

3 demonstrates that beyond any doubt.

4 Some of the defendants' arguments. They tried

5 to draw into question how Mr. Baffo contracted HIV. That

6 is downright offensive. There is no evidence in the

7 record to support any other contention in this case other

8 than the fact that Mr. Baffo contracted HIV when he came

9 to the aid of someone on the Circle Line. Hopefully they

10 will abandon that argument in their closing.

11 Performance? Come on. We saw many documents

12 after October 2nd that tried to purport to justify the

13 termination, the memos to HR, the memo to Len Aubrey, not

14 one of them, none of them mention anything to do with

15 Mr. Baffo's performance. That is a complete red herring.

16 Exhibit DJ, that's the September 1, 2009 memo,

17 not mentioned anywhere in Mr. Rizzuto's affidavit. So DJ

18 is that memo that he sent to Mr. Aubrey in code, okay, in

19 code. It doesn't mention Mr. Baffo. It doesn't mention

20 the general manager position.

21 Do you think for a second if it was what they

22 say it was, wouldn't it have been in Mr. Rizzuto's

23 affidavit that was filed in connection with the charged

24 discrimination just a few weeks later? Of course it

25 would. It's not what they say it is.




501

1 And Mr. Catalano said and the reason why it was

2 written in code was because somebody might see it on the

3 computer, and so therefore he said that he's sitting next

4 to him. Suppose he leaves the computer to answer the

5 phone or runs out to answer a phone? Of course it doesn't

6 say it, he said. The problem with that is there is no

7 evidence in the case about that. He never even asked his

8 client about that.

9 So there's no evidence, and it makes no sense

10 because then we see the other memos, Exhibit 13, 81, 78,

11 they all mention Mr. Baffa, after October 2nd, of course,

12 but they all mention Mr. Baffa by name and the general

13 manager position and the request to eliminate that

14 position. So it makes no sense at all.

15 The other change is simply the addition of the

16 other position, the captain position which you will see in

17 Exhibit 63, September 3rd, 2009, and that's what it is.

18 Then, of course, we have all of these exhibits, 66, 67,

19 62, 63, they all talk about this new position's reporting

20 to Mr. Baffa, the job descriptions, the memo, the thing

21 they posted on Monster.Com as of September 22nd. So they

22 all show it reporting to Mr. Baffa. That makes no sense.

23 As for Exhibit CI, that's the e-mail that

24 Mr. Rizzuto sent to Ms. Jablonsky saying, oh, suddenly on

25 the 23rd Mr. Baffa came in and said he's HIV positive,




502

1 that is -- I said it in my opening, I'll say it again

2 that is a CYA, we all know what that is, a CYA e-mail. He

3 knew there was the possibility he would spring this on

4 him, he was trying to CYA.

5 As for the contention in his opening

6 Mr. Catalano says the basis for Mr. Baffa disclosing not

7 on October 2nd, but October 23rd was this thing in Exhibit

8 44, the medical records which says I'd like to tell people

9 other than my family and friends about my HIV, other than

10 my family, other, that's the key, and he considered

11 Mr. Rizzuto a friend.

12 As for the increased severance, where's the

13 policy regarding asking everybody for a waiver? You will

14 see in Rizzuto's affidavit at paragraph 15, he tries to

15 take credit for the increased severance, yet another lie,

16 nothing to do with anything other than that Mr. Baffo

17 wouldn't waive his rights to get health care and

18 severance. He is a man of integrity and character. He

19 rejected the severance offer because he wanted his day in

20 court.

21 Now, I told you in my opening that there was no

22 smoking gun e-mail in this case. There is no e-mail that

23 says, yeah, we fired him because he's HIV positive.

24 That's not how you prove cases like this.

25 What we have proven are the lies, the




503

1 inconsistencies and the denial of the fact that he

2 disclosed he was HIV positive on October 2nd. We have

3 proven by a preponderance of the evidence that Mr. Baffo's


5 factor that prompted the decision. All we are required to

6 do is to prove that his disability or perceived disability

7 was a motivating factor that moved them towards the

8 decision to terminate him, more likely than not. It's not

9 beyond a reasonable doubt. This isn't a criminal trial.

10 Just tip the scales ever so slightly in Mr. Baffo's favor.

11 Now, I have discussed liability and I realize

12 I'm going fast, but I have a time limit. I'd like to talk

13 to you about damages.

14 Economic damages are for the judge to decide.

15 That's not in your purview. Compensatory damages,

16 emotional distress and harm to him. You heard

17 uncontroverted testimony that the de Seversky Center was

18 Mr. Baffo's dream job. He had worked hard to become the

19 general manager. The place where he had worked with his

20 wife, his alma mater, a place where he fell in love with

21 his wife and rented it to have a private anniversary

22 dinner.

23 That was all stripped away from him when the

24 defendants unlawfully fired him. As a result, and you

25 will see this in the medical records, Exhibit 44,




504

1 Mr. Baffo has been and continues to suffer from

2 depression, anxiety, feelings of failure, and fatigue. He

3 also told you about the shock, the feelings of failure to

4 himself, his family, his three children, and his feeling

5 of being worthless.

6 Now, an assistant store manager at Applebee's,

7 and while the defendants will try and say that the HIV is

8 to blame, you heard the testimony. Anthony and his wife

9 Laura, through the help of their faith and their family,

10 had come to grips with that.

11 The loss of his job, though, he could not cope

12 with. Even telling his wife maybe it would be better if I

13 wasn't around. That's one thing that Mr. Baffa did get

14 wrong. We would not be better off if he wasn't around.

15 As Father's Day approaches this weekend, Mr. Baffo's wife

16 and three young children would not be better off.

17 He should be considered a role model to them.

18 He is what we strive to be, a hardworking, dedicated,

19 honest human being who is sitting at that table because he

20 jumped to the aid of a woman who was bleeding, and now has

21 the courage to stand up for what is right.

22 Even when it looked as though everything had

23 gone horribly wrong, as the head of his household, he did

24 what was very difficult, he went out and got a job to

25 provide for his family. We'll never be able to undue what




505

1 happened to him. Mr. Baffo will continue to live with the

2 emotional scars for the remainder of his life. You have

3 to look into your heart to determine what is right, the

4 right amount of money to award Mr. Baffo for the emotional

5 damage he suffered.

6 How do you tell a person how much their

7 self-respect is worth?

8 THE COURT: You have five minutes left in your

9 first summation.

10 MR. WIGDOR: Thank you.

11 What is a fair verdict for having put Mr. Baffo

12 through this?

13 This is a very serious injury, and deserving of

14 a very large award. The defendants stripped Mr. Baffo of

15 his self-esteem and made him feel like nothing. We are

16 not appealing to your emotions but intelligence and sense

17 of fundamental fairness.

18 How do you send a message to the defendants?

19 Every day when I would take a break I would walk the

20 hallways and look across out the windows, look across out

21 to the Atlantic and the Robert Moses bridge and think

22 about how can we send a message to make sure that other

23 employers don't do what they did to Mr. Baffo. How can we

24 punish them for what they did to Mr. Baffa?

25 You, the gentlemen of the jury, have the power




506

1 to send that message, the power to make change, and the

2 power to make sure that what happened to Mr. Baffo doesn't

3 happen to anyone else. $220 million in revenues, that was

4 what the testimony was in one year, that is a lot of

5 money, folks.

6 While you have sat silently for the last week,

7 and you have listened to the witnesses, the lawyers, and

8 the judge, you folks will have the last word. On behalf

9 of Mr. Baffa, I would request that your last word be a

10 verdict in his favor, an award of $3 million in

11 compensatory damages, and an award of $8 million in

12 punitive damages.

13 That $8 million may seem like a lot of money,

14 but that's less than 4 percent of their annual revenues in

15 one year. In order to send a message, in order for them

16 to be punished, I respectfully submit that is the only

17 amount that would do that. Is that even enough? I don't

18 know. I'll leave that to you. But, gentlemen of the

19 jury, your voice must be heard.

20 Thank you.

21

22

THE COURT: Defendant.

MR. CATALANO: I told you in my opening that

23 there were absolutely no facts to indicate, infer or prove

24 that Mr. Baffa was terminated by NYIT by virtue of his

25 having discovered he had HIV on October 1.
