PLAINTIFF’S SUPPLEMENTAL AFFIDAVIT IN SUPPORT OF HER SUMMARY JUDGMENT

 

IN THE CIRCUIT COURT OF THE STATE OREGON

FOR THE COUNTY OF MULTNOMAH

 

 

Audrey Ivancie                                                                       CASE #      1207-09344

PLAINTIFF

V.

 

THE OREGONIAN PUBLISHING COMPANY

Elizabeth Vineyard, Dave Guilard, Kevin Denny

DEFENDANTS

 

 

PLAINTIFF’S SUPPLEMENTAL

AFFIDAVIT IN SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT

 

 

I, Audrey Ivancie, being first duly sworn, depose and say:

 

In addition to the information submitted in Plaintiff’s initial AFFIDAVIT IN SUPPORT OF SUMMARY JUDGMENT(here in after referred to in the first person as “I”), the following information is essential to fully understand the magnitude of the Plaintiff’s injury to date that she suffered and endured because of the intentional, wrongful actions of the Defendants.

1.

I realized that my supervisors Defendants Vineyard, Guilard and Denny were going to continue to ignore my concerns, and continue to give me the run-around and intentionally lie to me about the amount of money I was going to make and the quality of customers that would be referred to me by the Defendants. As a result of the abusive treatment I was being subjected to by the Defendants I decided to keep detailed records of my abusive treatment by the Defendants. I posted messages and photos on FACEBOOK and created visual displays in my work cubicle in an attempt to communicate my concerns with Management.

 

 

 

2.

To alert the Defendants about the abusive treatment to which I was being subjected by the Oregonian and management the following Exhibits were made available to the Oregonian during February and March of 2011 and displayed on Plaintiff’s personal FACEBOOK account:

(Exhibit C, page 1 of 2)The top photo is of the inside wall of Plaintiff’s cubical from October 2010- March 2011. The top image states “If you can’t defend your honor You haven’t Any! “With an arrow pointing to the Oregonian and two quotes that read “How Many have to quit or be laid off?” and “People will follow by comfort & acceptance rather than fear and pain- Aldous Huxley” with an arrow pointing to the Oregonian.

The Second photo below the top photo (See Exhibit C, page 1 of 2) is a “picture capture” from Plaintiff’s FACEBOOK page with a picture of Plaintiff wearing a “paper” watch. The comment adjacent to the wrist-watch reads: “Check out my sweet new watch I bought with my giant paycheck!’…”

(Exhibit C), page 2 of 2 is a photo that reads “The SALARY REVIEW OPEN DOOR POLICY…” and has a sketch of an employee entering management’s office through a “Doggie Door” and a clipping of a minimum wage wanted ad. This Photo was created on or around the last month of the Plaintiff’s employment at the Oregonian and made while she sat at her desk in the Inside Sales Room.

 

3.

In PLAINTIFF’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT on file Plaintiff references pictures of intimidating signs posted around her desk and elevator and a picture Plaintiff took of her private filing cabinet after it had been broken into by the Defendants or their agents.  (Exhibit D ) is evidence documenting Plaintiff’s abusive treatment by the Defendants. This Exhibit, two photos (side by side) one reading: “NOTICE EMPLOYEE POLYGRAPH PROTECTION ACT” was posted in the elevator at the Oregonian.  The Photo on the right is a picture of the Plaintiff’s personal file cabinet after it had been broken into by the Defendants or their agents.

 

The following are affidavits of: my Mother, Lori Rheinberger; my friend Amber Solomon; my friend Kevin Sullivan. These affidavits confirm the abusive treatment that I was being subjected to by the Oregonian or their agents for speaking out about the abusive treatment of other workers and myself at the Oregonian. (See Exhibit E)

4.

In January 2011, I spoke with Defendant Denny, about the fact that I wasn’t making my commission. I told him I would be making more in PTO at $30 an hour versus the $8.55 I was making as a non-commissioned employee. I asked him if I should use PTO? He said, “I don’t suggest you should use it yet.” I assumed he meant we were going to have more leads and bigger commissions as had been promised. This did not happen. I continued to miss the first tier commission level for the majority of the time I remained at work in the sales room.

5.

In or around the middle of February 2011, Defendant Guilard came into the sales room. I had complained earlier that day and week to Defendant Vineyard that I was receiving duplicate leads of subscribers, and thus could not sell them the paper. I told Defendant Guilard I was receiving duplicate leads. He shook his head at me and said “no”. That was when I raised my hand with the paper I had been keeping a tally with of my calls that day. I said aloud to the room of 8 people in front of Defendant Guilard and Defendant Vineyard” “Of the last of my calls, four of seven were subscribers.”  He looked shocked and not happy.  He could not refute the truthfulness of either my tally or my comments directed at him in front of the other employees in the sales room. I could tell by Defendant Guilard’s body language that he was angry that I challenged his authority with the facts and had proved with data that the leads I was receiving were duplicitous.

6.

Because of his past dealing with the Plaintiff and others in the sales room I didn’t trust Guilard. Guilard had a pattern of mistreating, misleading and disregarding the Plaintiff and others who complained about working conditions.

One afternoon, in late January early February 2011, I caught Guilard secretly monitoring my sales calls from outside of the salesroom. It was the beginning of my shift as I was waiting for the first call from the electronic dialer. I accidentally hit my mute button on my headset, which would not allow the client I was to sell to hear me. When I realized what I had done, I left the mute button on for another call. Within 30 seconds of the 2nd call of the evening Defendant Guilard ran into the sales room and pulled me out of the room to tell me to stop playing with my headset. I was so shocked and terrified, that he was monitoring me. Those calls involved: harassing phone calls, duplicate leads, and later “false leads” which were unlike any calls I had received in previous 6 years.

7.

After this incident, by his behavior, Defendant Guilard had direct personal knowledge of the strange and harassing phone calls I was receiving. It was the policies that Guilard was implementing  in response to my complaints about his abusive treatment  involving  rule tightening, constant monitoring, and multitudes of lies about pay that had caused me to grow sick, become stressed out, lose weight and appetite, have acute depression involving night terrors, insomnia, and panic (that compelled me to seek my father and uncle’s assistance to deal with the overwhelming emotional and physical  problems I was being confronted with at work), and extreme financial destitution.

 

8.

In January 2011, Defendant Guilard and Vineyard pulled the whole Inside Sales team into a conference room to let us know they were going to increase our base pay from $8.55 an hour to $10.00.  I questioned aloud in the room why the Oregonian would increase our base pay when sales agents rarely made base pay, because their commission far exceeded base pay. The Defendant’s response was “They’re introducing new commission structure in which all sales agents would earn more money and make larger commissions. Plaintiff asked Defendants if this meant that sales agents would only be making base pay. The Defendant replied “no.” Sales room would all make more money this year than in years prior.

 

9.

As I had stated earlier in my AFFIDAVIT FOR SUMMARY JUDGEMENT. I could get within 1- 3 points of making my commissions, even when I had made over 400 points, which was just short of the first tier of the new higher quotas Guilard had introduced. I wrote to Defendant Denny, through our “groupwise” email system explaining the situation I faced in not making commission asking if he would be willing to grant me an exception so that I would make my commission. Defendant Denny replied that he was unable to grant me an exception.  Prior to speaking out about the Defendants’ business practice, Defendant Denny would have gladly honored almost any reasonable request I would have made to him. My request was reasonable.

10.

During the harassing phone calls I encountered while attempting to sell the paper coupled with the multiple duplicate subscribers I was getting on the phone.  I felt like a hamster on a wheel, with nowhere to go and no end in sight. I felt like I was being tested by the Oregonian and my supervisors looking for my breaking point at which point I would resign. Thinking often to myself that the Defendants were secretly wondering: “How much can she (I) take?” “How much will she (I) endure” before she quits or dies. I knew they were experimenting on me and that if I would break, I’d quit or kill myself and would no longer be a problem to them.  I could take no more. I posted signs at my desk on the wall in hopes that management would see and take pity on my situation. I “tweeted” on my cell phone as described in Affidavit on file and I posted on my FACEBOOK how I was being intentionally “BANKRUPTED By my employer for being a good employee.” During the months that I was subjected to the outrageous abuse listed I also had to bear witness to many of the same actions taken against my coworkers that had been taken against me.

11.

The Oregonian demanded loyalty as a condition of employment.  I felt that loyalty and practiced that loyalty in good faith and accordingly was awarded and recognized employee of the month December in 2010.  In the last week of my employment at the Oregonian I had a private meeting with Defendant Denny in his office where he said I would either have to quit or be fired. I asked him. “Haven’t I proven my loyalty?” Kevin Denny replied, “Yes.”

 

12.

The following is a list of the physical and mental suffering I have endured for speaking out about Employee abuse at the Oregonian:

Mental dislocation and shell shock– The intentional infliction of emotional duress–Physical sickness—Nightmares–Felt under extreme surveillance—Insomnia — Anxiety produced adrenaline rushes– Fear in being left alone—Fear to leave my apartment because I felt under surveillance — Weight loss – Extreme financial hardship–Fear of all new personal contacts–Losing confidence in my ability to obtain meaningful employment–Having to mask what happened to me while I was seeking new employment and interacting with potential personal interests—and with friends

13.

Kevin Denny and I enjoyed a friendship up until I started questioning the reduction of my pay. And as soon as I began questioning the reduction in pay he changed our relationship from one of friendship to one of open hostility by Kevin Denny toward me.

In the same manner as I was treated by Kevin Denny, I was treated the same by Elizabeth Vineyard. When I first went to work Vineyard actively cultivated a friendship with me being very solicitous and caring about my well-being. But like Kevin Denny, as soon as I began to complain about my reduction in pay she too turned extremely hostile in her attitude towards me. She found excuses to yell at me for anything and to take me outside to insult, threaten and intimate me for having spoken out about the reduction in my pay.

 

14.

After, I  lost my job there I  met an individual who I told what the Oregonian had done to me and how I wasn’t OK and consumed in pain and depression from being abused. This man then told me about the EEOC and BOLI.

I did a detailed interview with BOLI, naming the Oregonian and supervisors that had retaliated against me for complaining and asking questions related to my pay and PTO. See (Exhibit B) BOLI INTERVIEW: it was recorded in its entirety in December 2011 with Senior Investigator Brandy Pirtle.

 

10/16/2012                                                                              ________________________

Audrey Ivancie, Pro Se

 

PLAINTIFF’S REPLY to DEFENDANTS’ RESPONSE & PLAINTIFF’S REPLY TO DECLARATION OF VINEYARD AND DENNY

IN THE CIRCUIT COURT OF THE STATE OREGON

FOR THE COUNTY OF MULTNOMAH

 

 

 

 

 

Audrey Ivancie                                                 CASE # 120709344

PLAINTIFF

V.

The OREGONIAN PUBLISHING COMPANY

Elizabeth Vineyard, Dave Guilard, Kevin Denny

DEFENDANTS

 

PLAINTIFF’S REPLY TO:

1. DEFENDANTS’ RESPONSE TO PLAINTIFF’S    MOTION FOR SUMMARY JUDGMENT

2. DECLARATION OF KEVIN DENNY IN SUPPORT OF DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

3. DECLARATION OF ELIZABETH VINEYARD IN SUPPORT OF DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

 

By way of Reply to DEFENDANTS’ RESPONSE listed in number 1 above. The Plaintiff states the following:

 

1.”There are no genuine issues of material fact.”

 

Answer: The facts that are contained in the Affidavit filed by the Plaintiff detail the intentional, malicious injuries inflicted upon the Plaintiff for speaking out about the abuse to which she and others were being subjected. This abuse occurred because the Plaintiff spoke out rightfully about her wages being drastically reduced. This created a work environment of hostility and intimidation in at the OREGONIAN. (See Affidavit).

 

Page 2 of DEFENDANTS’ RESPONSE

1. Line 8 “Plaintiff’s Motion is insufficient on its face.”

 

Answer: That statement by the Defendants in their pleadings is made out of pure whole-cloth. The undisputed facts set forth in the Plaintiff’s Complaint and supporting Affidavits are concise, and describe in detail the intentional infliction on the of emotional duress on the Plaintiff by the Defendants.

 

1. Line 11 and 12: “Plaintiff has not proved her Prima Facie Case of Intentional Infliction of Emotional Distress.”

 

Answer: The very undisputed facts set forth at lines 16, 17 and 18 of Page 3 of DEFENDANTS’ RESPONSE are exactly what the facts are in the present case, namely: “

(1)   The Defendants intended to inflict severe mental or emotional stress on the Plaintiff.

(2)   The Defendants’ acts were the cause of the Plaintiff’s severe emotional distress.

(3)   The Defendants’ acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.”

 

Page 5 of DEFENDANTS’ RESPONSE

1. Line 5 and 6 “Plaintiff has not established that the Defendants intended to inflict severe mental or emotional distress.”

 

Answer: The Plaintiff has provided detailed, documented evidence in support of her claim. For the Defendants to contend that her case “simply does not hold water” is simply turning a blind eye to reality.

 

Page 7 of DEFENDANTS’ RESPONSE.

1. Lines 1 and 2 “There is no evidence proving that the Defendants’ acts were the cause of Plaintiff’s alleged severe emotional distress.”

 

Answer: The Affidavits on file detail that the Defendants’ intended acts were the direct cause of the Plaintiff’s severe emotional distress.

 

1. Lines 14 and 15 “Plaintiff’s discipline and termination were justifiable business decisions, not ‘extremely outrageous transgressions of social norm’.”

 

Answer: For 8 months prior to Plaintiff’s wrongful termination Plaintiff had received no discipline for any improper behavior, and in fact, just in December 2010, was selected Employee Of The Month. The following is the notice received by the Plaintiff from the Defendant Oregonian on or about January 3^rd 2011,

 

“Audrey,

Congratulations, on you achievement of Inside Sales Associate of the Month for December. In recognition of your achievement, we’ll be having lunch with the other employees being recognized for their December performance. Please meet in my office at 11:15 AM Friday, January 21^st. You can expect to be back to the office before 1:00.

Thanks!

Kevin

 

Please RSVP to me by the end of the day Wednesday, January 19^th.”

 

No adverse action was taken by the Defendants against the Plaintiff until she began speaking out about the abusive business practices listed in Plaintiff’s Complaint and Affidavits.

 

 

By way of Reply to DECLARATION OF KEVIN DENNY listed in number 2 above. The Plaintiff states the following:

 

Page 1 of the DENNY DECLARATION states:

1. Line 26 “all Inside Sales Associates have access to the same leads.”

 

Answer: That statement is absolutely false. The Plaintiff in her Affidavit details the multiple times she was given fewer leads, given duplicate leads of s   subscribers, repeat customers, and bad leads of “new clients” attempting to block her ability to sell the newspaper mixed in with normal leads. All of these deceptive and vindictive actions by the Defendants are detailed here-in the Affidavits of the Plaintiff on file. It was carrying out these vindictive acts that resulted in the injuries set forth here-in.

 

Page 2 of the DENNY DECLARATION.

1. Line 1 “None of the Defendants have the ability to manipulate which Inside Sales Associates received which leads.”

 

Answer: The Oregonian did in fact have the ability to manipulate and tamper with the electronic dialing system and did so, causing the injuries set forth in Plaintiff’s Complaint and Affidavit on file. The Defendants were aware of the Plaintiff’s complaint and other workers’ complaints about the manipulation and tampering of the dialing system by the Defendants. In the Plaintiff’s supporting affidavits she lists the multiple times that she had received worthless duplicate leads, repeat customers, and already active subscribers, and had brought it to the attention of Defendant Vineyard and Defendant Guilard. Plaintiff, in fact, confronted Defendant Guilard with documented evidence of duplicate leads stated in Plaintiff’s Supplementary Affidavit. In response to Plaintiff’s confrontation with Guilard about the worthless leads she was receiving from the Oregonian, he could not and did not refute the truthfulness of the accusations that the Plaintiff was making against the Oregonian.

 

Page 2 of the DENNY DECLARATION

1. Line 3, 4 and 5 states: “Paid Time Off (“PTO”) is based on the hours worked the prior year. It is calculated by taking the earnings for the previous year and dividing them by the hours worked.”

 

Answer: Defendants refused to provide the calculation of “PTO” despite the repeated “5 demands” that the Plaintiff made on the Defendants and on Human Resources for the determination of “PTO”(See Exhibit A)—a final pay stub received by the Plaintiff from the Oregonian.) The stub shows the shorted “PTO” allowance of 19.41 hours.

 

Page 2 of the DENNY DECLARATION

1. Line 7, 8 and 9 states: “Plaintiff was never granted privileges of humming or singing at her desk. Those activities were initially tolerated but eventually became disruptive to Plaintiff’s co-workers. As a result was asked to stop on numerous occasions.”

 

Answer: In the whole six years prior to the Plaintiff’s wrongful termination, singing, humming and whistling quietly in the back corner of her cubicle were routinely practiced by the Plaintiff’s and were always tolerated, and never interfered with any co-workers. In mid-2010 Defendant Vineyard brought it to Plaintiff’s attention that she heard the Plaintiff whistling a few times. The Plaintiff was asked to “stop or else” in late February 2011 and never sang, hummed or whistled for the duration of her remaining time there after being threatened with these reprisals.

 

Page 2 of the DENNY DECLARATION

1. Line 11 states: “Whenever a discussion needed to occur that was of a private nature, it was conducted in a more private setting.”

 

Answer: This is completely false. Plaintiff was pulled out of the office for numerous occasions for “secret meetings” intended to restrict and intimidate Plaintiff for speaking out about Oregonian’s business practices. Plaintiff often had private conversations with all the Defendants in the sales room. On one occasion in 2011 Plaintiff tells Defendant Vineyard “she is so broke she can’t afford to buy new underwear” in the sales room. In addition, inappropriate abusive verbal statements made to Plaintiff by Defendant Vineyard, which should have been made in private, were made in the sales room in front of 7 to 30 other employees, causing the Plaintiff acute embarrassment and emotional distress. Defendant Vineyard’s yelling at the Plaintiff was intended to provoke and embarrass her in front of other employees.

 

Page 2 of the DENNY DECLARATION

1. Line 14 states: “All closed sales are recorded as a matter of company policy.”

 

Answer: To clarify, what the Defendants intentionally omit:  The Oregonian business practice is “Only to record financial information between client and person taking credit card information after client agrees to take the newspaper on ‘Easy Pay’, which was debited or charged to their card.” and the clients approval is recorded on a “closed sales call. The sales people in the room were never informed or aware that their “sales call pitches” with client were recorded, Thus, the Defendants’ above statement is clearly misleading as employees including Plaintiff were not told and did not expect to have sale calls monitored or recorded.

 

Page 2 of the DENNY DECLARATION

8.      Line 15 and 16 DENNY DECLARATION states: “There is no echo sound when a call is being monitored.”

 

Answer: This is untrue. It is commonly known in the sales room that you can tell you are being monitored by hearing an echo or feedback.

 

Page 2 of the DENNY DECLARATION

     11.  Line 22 and 23 states: “Although there is no written policy, it has always been company policy that employees must give the company advance notice of any intent to use PTO.”

 

Answer: It is correct there is no written policy on PTO, because the employees were allowed and encouraged to use PTO as they pleased. PTO was often used and not limited to vacation, illness, a break, appointments, or even to pad paychecks where the employee had already worked a full week’s shift. Employees were asked to let Defendant Vineyard know prior to their shift of their intention to take PTO. There was no set policy, as stated by the Defendants, concerning the time, prior to beginning of shift that management was to be informed.

 

Page 2 of the DENNY DECLARATION

12.   Line 24, 25, 26 states “Prior to her termination, Plaintiff continuously violated company policies and procedures of which she was aware, disregarded instructions and directives from her supervisors, and failed to meet attendance and punctuality obligations.”

 

Answer: Plaintiff had not been disciplined for any attendance issues after June 8^th, 2010. Plaintiff violated no company policies or procedures or was disciplined for doing so. Plaintiff also ceased to sing, hum and whistle in late February 2011 for fear of discipline.

 

Page 3 of the DENNY DECLARATION

12.  Line 2 states: “(Plaintiff) failed to request 48 hours in advance (as required by department policy)”

 

Answer: That statement is false. The final week before Plaintiff started using PTO on approved medical time, Defendant Guilard addressed the entire sales room with a strict 1^st time policy stating he wanted the employees to let management know of planned PTO use the Friday prior to the week the PTO was intended to be taken. When the Plaintiff went to Human Resources to discuss future PTO she was planning to take for medical reasons, Marcie Ellis in HR told the Plaintiff she could take PTO whenever she wanted. The Plaintiff informed Marcie, a veteran HR associate, that it had been changed by Defendant Guilard, much to her (Marcie’s) surprise.

 

Page 3 of the DENNY DECLARATION

12. Line 3 states: “(Plaintiff) was found napping at her workstation.”

 

Answer:  This statement is an absolute lie! The Plaintiff only naps in the approved and designated “Nap Room” on the 2^nd floor of the Oregonian building which is equipped with pillows, blankets, dim lights and couches. She was never asked to stop napping in “Nap Room” by any of the Defendants.

 

 

By way of REPLY to DEFENDANTS DECLARATION OF VINEYARD

listed above in number 3 above. The Plaintiff states the following:

 

Page 1 of DECLARATION OF VINEYARD

     4. Line 17 and 18 states: “Written final warning issued to Plaintiff on June 8^th, 2010 and supporting documentation.(Exhibit 1)”

 

Answer: I did receive and discuss (Exhibit 1) page 1 with the Defendants. However, the letter from Vineyard and Guilard is not on the official Oregonian Company write-up form.  Rather it is a memo with some words and threats and was given to her (Plaintiff) about six months before she complained about her pay. Plaintiff did not discuss any changes in PTO policy in that meeting as referenced in the “final written warning” memo.  Plaintiff was verbally forced to sign the document by the Defendants. The Defendants and Donna Copadaqua told the Plaintiff “She must sign,” and she did so reluctantly. As to the accompanying documents (VINEYARD’S Exhibit 1 page 2), Plaintiff cannot confirm or deny any of these un-notarized documents by Defendant Vineyard, simply because at this time Plaintiff was not disciplined, or put on notice of any behavior issues at the times she received the final written warning. The Plaintiff never violated or was punished for tardiness or attendance issues after June 8^th 2010. (VINEYARD’S Exhibit 1 page 1). Management brought to her attention that she was not in compliance with company policy and therefore subject to punishment or dismissal for ANYTHING after June 8^th, 2010. Plaintiff did not register a complaint about business practices until January 2011.

 

Page 1 of DECLARATION VINEYARD

5. States: line 19 and 20 “Attached is a true and correct copy of the Annual Performance Evaluation given to Plaintiff by Vineyard and Guilard on July 29, 2010(Exhibit2)”

 

Answer: “The Annual Performance Evaluation” given by Vineyard and Guilard was the first of its kind that Plaintiff received in the 7 years she worked for the Oregonian. The Defendants’ and Publisher Christian Anderson III, in fact, informed all employees in the Inside Sales room that “they would be getting low scores so they could improve and be granted Merit Based Raises.” as Plaintiff describes in the transcribed telephone interview with the investigator (see Exhibit B: transcription of interview on Page 71 lines 18-25 and Page 72 line 1-12.) The 6 pages of documents attached to the Annual Performance Evaluation are an incomplete copy of the Annual Performance Evaluation handed out to Plaintiff in advance to Plaintiff to comment on before evaluation. This includes the Plaintiff’s comments about the Defendants’ inability to properly measure her sales ability, for which she was hired. The document has nothing to do with the work for which the Plaintiff was hired, as Plaintiff describes in (Exhibit B). In addition the accuracy of this “Annual Performance Evaluation” to measure an Inside Sales person’s ability to sell the newspaper is grossly apparent.

 

 

 

Page 1 OF DECLARATION OF VINEYARD

6.line 24, 25 and 26 “Attached to this Declaration as (Exhibit 3) is a true and correct copy of my notes from my meeting with Plaintiff on March 3 2011, and my notes of Plaintiff’s subsequent behavior following that meeting.”

 

Page 1 of 4 (Exhibit 3) of Defendant’s “Meeting with Audrey 03/03/2011”

Answer: This memo is filled with lies and half-truths. After June 8^th, 2010, I had no issues with attendance or tardiness.

 

Page 1 of 4(Exhibit 3) Fourth Paragraph, after Response lines 6 and 7 states: “I stressed to her that coming to work for the full five days would assist her in making goal.”

 

Answer: This is an absolute lie. Plaintiff asked Defendant Vineyard specifically what she could do to make commission for the week? Defendant Vineyard told the Plaintiff that if she was there every day in her seat she would make commission. Plaintiff said to Defendant Vineyard, “Are you sure?” Defendant Vineyard assured Plaintiff that every other sales person in the room who were doing the same full five days in their seat that they would make commission as well. That following week, much to the Plaintiff’s surprise and dismay, she missed her commission that week and discovered also that her co-worker John Smith, who was also compliant with Defendant Vineyards promise, missed his commission level too. The Plaintiff confronted Defendant Guilard in the sales room with what Defendant Vineyard had promised. Defendant Guilard looked angry, when the Plaintiff spoke aloud to her co-workers in front of him and told her that this was not the case, much to her disappointment. Defendant Guilard stated that “not all of us in the sales room would be earning (our) commissions” even being there in your seat every day.

 

Page 2 of 4(Exhibit 3) of VINEYARD’S DECLARATION –

    (0308/2011) Line 1 states: “When addressing me (Vineyard) she (Plaintiff) does it with her back turned and assumes that she is the only person in the room that might be talking to me.”

 

Answer: It is true that the Plaintiff always sat at her desk in the corner facing toward the rest of the office. This was the Plaintiff’s standard operation procedure while at work.

 

Page 2 of 4 (Exhibit 3) of VINEYARD’S DECLARATION

     Lines 1, 2, 3 and 4 states: “I (Vineyard)was called from HR to clarify the PTO Policy.”

 

Answer: This is another intentional lie of the Defendants. Defendant Vineyard was called on speaker-phone by HR personnel Donna Copadaqua, Marcie Ellis and Plaintiff to further confirm that PTO could be taken for medical reasons. There was absolutely NO MENTION of Family Medical Leave Act or Medical Emergencies during this call to Defendant Vineyard or even later by the HR personnel from whom the Plaintiff received the medically PTO time approval. Defendant Vineyard is lying.

 

Page 2 of 4(Exhibit 3) of VINEYARD’S DECLARATION

     (031611) Line 1 and 2 states “Audreystated that she would no longer call customers back that called and left a request for her (Plaintiff) to return a call. This particular subscriber was active”

 

Answer: Plaintiff in all years prior to complaining about the Defendants’ business practices would always call and request customers to ask for her by name. The Plaintiff states in the last few weeks of her employment she made no such request for customers to ask for her by name and had been “burned” by two callbacks whom she did not recognize. These unknown customers asked her questions she had would have already explained to them and then they refused to take the paper. Plaintiff feared that these callback requests mentioned to her by Defendant Vineyard were more “false leads” that she would be forced to interact with to further punish her for speaking out about the Defendants’ business practices. The Plaintiff wanted to focus on chances for sales on the dialer.

 

Page 2 of 4(Exhibit 3) of VINEYARD’S DECLARATION

     (03/16/11) Line 1 and 2“She (Plaintiff) had made statements to customers that her information is outdated. She has stated to a customer that she is spending her time decoding information.”

 

Answer: This statement made by the Plaintiff was true, as sales quotas were changing every week since January 2011. For example the 3 levels of commission (for over 6 years Plaintiff was employed) were formally 110, 130, and 150 point quotas. After January 2011, the quotas for the sales staff were changed to new higher-level quotas: 400, 500, and 600 pts. The following week’s quotas could be 450, 550, and 600 pts. At this same time the sales rates were also changing frequently and had tiered/graduated rates that were so complex that even a seasoned top performer, such as the Plaintiff, had extreme difficultly deciphering them. For example, a customer wanted to know the exact day the 2^nd tier of the offer was expiring, but even with a calendar in front of her, the Plaintiff found it extremely difficult to determine the answer. Often as her supervisor Defendant Vineyard was out of the room, or intentionally ignoring her requests for help or information. See (Exhibit B).

 

Page 2 of 4 (Exhibit 3) of VINEYARD’S DECLARATION

     (03/16/11) continued Paragraph 2–Lines 1, 2 and 3“She made no effort to sell the customer, she stated the offer and if a customer declined she closed by saying okay. Typically agents would spend time to sell the customer with the benefit of how the paper has value to them. Audrey made no effort.”

 

Answer: Plaintiff states on March 16 or 17th, 2011. She received more calls (leads) on her phone dialer on that day than in months, in which Defendant Vineyard monitored her calls on pen and paper for the first time ever in 6.75 years. The speed of which the dialer was generating calls to her headset was faster than she had experienced in her history there. She was barely able to catch her breath between calls. Plaintiff states the quality of calls was a bizarre mix of false leads, harassing customers, and normal calls mixed together. See (Exhibit B) It was up to the Plaintiff to determine which of the calls were viable sales and which would inevitably end in no sales. In the training completed by the Plaintiff upon hire at the Oregonian was – that the stipulation that if there was no chance on a sale, you were instructed to move on to the next call. This was the practice of all Inside Sales Agents in the room since her start there.

 

Page 3 of 4 (Exhibit 3) of VINEYARD’S DECLARATION

 (03/16/11) continued Paragraph 4 —Lines 1, 2, 3 ,4 and 5“The closing average for the room this evening was:                DX closing average 42.86%

Audrey’s closing Average 13.89%

Other campaigns:

Room closing 40.52%

Audrey closing 13.64%”

 

Answer: Plaintiff states the above is further proof of the imbalance of viable leads a former top sales person was awarded. This statistical information was not given to Plaintiff and sales sheets had been removed from their postings on the wall of the sales room; it had been the practice to display that sales numbers and goals on the wall of the office and other similar statistical information in weeks, months and years prior. Plaintiff again states she was a top high volume seller prior to complaining about the Oregonian. Plaintiff also states she has no way of knowing if this “closing average information” is correct, nor was told to improve her closing average, as she did not know how her co-workers where closing and management did not inform her.

 

 

Page 3 of 4 (Exhibit 3) of VINEYARD’S DECLARATION

  (03/17/11), Paragraph 3–Lines 1, 2, and 3 Vineyard states: “She(Plaintiff) stated that the type of call that is being sent to her is different from the calls she has worked with previously. I (Vineyard)asked her(Plaintiff) to please work on her sales presentation this evening. She (Plaintiff) ask(s) to listen to others sell this evening on the dx campaign.”

 

Answer: The Plaintiff affirms this is correct, and in an attempt to improve sales, asked to listen to others sell the paper, on her headset. This was also an attempt for the Plaintiff to check if other sales agents were receiving similar “false leads, duplicate calls and harassing leads.”  After waiting over twenty minutes for her co-worker Tami Foxworth to receive her first call of the evening, Plaintiff decided to remain at desk. The dx calls being introduced into the evening sales came later in the evening, after Plaintiff had, out of frustration, given up waiting on the electronic dialer to give the sales agents their first phone call.

 

Page 3 of 4(Exhibit 3) of VINEYARD’S DECLARATION

     (03/22/11)Paragraph 1 —Lines 1, 2  Vineyard states“Audrey called to say that she was taking PTO for medical reasons. I asked her to bring a note from her Doctor upon returning. She stated ’oh, I will try and get that together.’”

 

Answer: This is an intentionally false statement by the defendants. The Plaintiff did call Defendant Vineyard to tell her she was taking her PTO for medical reasons. Defendant Vineyard called the Plaintiff on Plaintiff’s personal cell phone to instruct her to call in everyday prior to the shift if she is not coming into work. Plaintiff agreed.  No Doctor’s note was discussed on this date.

 

Page 3 of 4 (Exhibit 3) of VINEYARD’S DECLARATION

     (03/23/11) Paragraph 1 –Lines 1, 2, and 3Vineyard states:“Audrey called in said she was taking PTO due to medical condition. She (Plaintiff) asked me (Vineyard) to let the people in the sales room know that her band was playing that evening, she then added she hoped she’d be feeling better by that night. I reminded her that we needed a note to come back in.”

 

Answer: Plaintiff called in Wednesday March 23^rd, as instructed by the Defendant Vineyard the day previous to inform the Defendant she (Plaintiff) would be out for medical reasons. See (Exhibit B) At this time Defendant Vineyard said to Plaintiff that she must bring a Doctor’s note if she was going to return to work. The Plaintiff was angry that she was asked for a note in order to return to work for the first time in nearly 7 years of employment and said to Defendant Vineyard,
“tell the sales room my band is playing tonight…” It had been the Plaintiff’s practice to tell all her co- workers and pass out fliers when her band would often play.  Plaintiff was supplementing her missing income from the Defendants’ underhandedness with her band performance payouts.

 

Page 3 of (Exhibit 3) of VINEYARDS DECLARATION

     (03/24/11) Paragraph 1 —Lines 1, 2, 3, 4 and 5 Vineyard states: “Audrey called and asked to use PTO I asked her to come into work for her shift. She(Plaintiff) stated she was at the Doctor’s getting a note and her father could probably drive her in after the apt. I asked her to call me when she left with an approximate time of arrival. She called back and stated she would not be coming in, I told her we would like her to come in. She ask(s) her father what to do, and he told her “tell them you will call them when you can come in.” Audrey repeated this statement.”

 

Answer: “This statement by Vineyard is a lie.” The Plaintiff called into work requesting to use PTO for medical reasons prior to scheduled shift. Later that afternoon her father drove the Plaintiff to Zoomcare to get the Doctor’s note that Defendant Vineyard requested the day earlier. While Plaintiff is in the waiting room at Zoomcare, Defendant Vineyard called her on her(Plaintiff’s) personal cell phone, which up until 2 days before was never used by the Defendant Vineyard to contact the Plaintiff and was completely uncharacteristic for management to do. Defendant Vineyard asked Plaintiff to come into work that day. Plaintiff told Defendant Vineyard that she was getting the Doctor’s note that Vineyard had asked for. Defendant Vineyard told the Plaintiff, “Don’t worry about the note – forget about the note.” The Plaintiff informed Vineyard that she’s “getting that note” and she’ll talk to her father and will call Vineyard back after her appointment with the Doctor.

In the car, with her father, the Plaintiff called back Defendant Vineyard. Defendant Vineyard again asked the Plaintiff to come into work, that “they wanted her to come in”. At this moment the Plaintiff’s father told her “Tell them you come in when you feel better!” The Plaintiff repeated to Defendant, “I’ll come in when I feel better,” as stated in Plaintiff’s Affidavit.

 

Page 4 of 4 (Exhibit 3) of VINEYARDS DECLARATION

     (03/25/11) Paragraph 1

Lines 1, 2, 3, 4 and 5 “Audrey called this morning and stated she would not be coming in…”

 

Answer: Please see details outlined in Affidavits on file and (Exhibit B). Plaintiff attempted to comply with Defendant Vineyard’s request to call in prior to her shift to let her know she intended to be out for medical reasons, but was rudely interrupted by Vineyard stating she would have to speak with Donna Copadaqua in HR, and that Donna would be calling back.

 

DECLARATION OF VINEYARD Page 1

7. “Attached to this Declaration as (Exhibit 4) is a true and correct copy of Bonus Commission Calculator sheet for March of 2011, which is distributed to all Inside Sales Associates at that time.”

 

Answer: This is indeed ONE of the Numerous Compensations Plans the Inside sales Associates received.   It was distributed in March between the 14^th and 18^th by Defendant Guilard and was one of many in 2011. Plaintiff described in detail how the new policy of PTO was being introduced in her INTERVIEW WITH BOLI (See Exhibit B). The Compensation plan submitted as DECLARATION OF VINEYARD (Exhibit 4) is incomplete and does not show the weekly quota requirements for the commission levels and at this time which were changing weekly. It does not explain how or at what point an employee was  commissioned and is thus incomplete in its face.

 

DECLARATION OF VINEYARD Page 2

     8.”At one point during Plaintiff’s employment, the minimum wage for all Inside Sales Associates, including Plaintiff, increased from eight dollars and fifty-five cents per hour.”

 

Answer: Plaintiff states this is true. Plaintiff states, prior to January 2011 employees rarely or never made the base pay, only the commission. See (Exhibit B) and SUPPLEMENTAL AFFADAVIT. Defendant Guilard and Vineyard took the sales staff into a conference room to announce the Sales Agents would be receiving a raise in the base pay. Much to the Staff’s bewilderment, Plaintiff asked aloud to the room, “Does this mean we (all Inside Sales Agents) will only be making $10 an hour and not our commissions?” In which both of the Defendants nervously scrambled to respond to a now ignited and curiously interrupted sales staff. The Defendant’s replied “no, you (Inside Sales Agents) will all make and continue to make more money and bigger commissions.” Defendant Guilard then introduced to the room an extreme and off-setting new dramatically higher expectation quota to the staff.  Employees were to acknowledge the progressingly higher quotas, new technology and new company goals with great expectations of new and larger commissions and pay outs to come, all promised by Defendant Guilard to the Inside Sales staff. Plaintiff mentions to the Defendants her suspicions of dialer tampering aloud to the sales staff and Plaintiff questions aloud the new model “quota” of pay out to Sales Agents. The room went silent in concern. Defendant Guilard again, shook his head “no”, and stated that the sales staff would all be making more money and do better. Plaintiff received recognition from fellow co-worker Pat Perry for mentioning her suspicions of the surprise stricter new quotas and dialer tampering introduced after the token raises. Plaintiff recognized suspicion among Employees concerning the Defendants and their new sales goals implementation.

 

DECLARATION OF ELIZABETH VINEYARD Page 2

1. Line 7 and 8. “Plaintiff painted her fingernails at her desk and took personal calls during her shifts.”

 

Answer: The Plaintiff confirms that on some occasions she and others painted their nails during her shift and answered and made calls in the hours she was at worked for the Oregonian. Plaintiff most often made calls in a ladies bathroom, or in the hallway outside the sales room as did most others including management.

 

Page 2 of DECLARATION OF VINEYARD

1. (Exhibit 2) Lines 9,10, 11 “Following the Plaintiff’s Annual Performance Evaluation on July 29, 2010, on which she received the lowest score of all Inside Sales Associate, Plaintiff behavior improved for a few months.”

 

Answer: Plaintiff states, much to her shock and surprise, that she received the lowest score in a “performance evaluation” after complaining to BOLI in October 2011. Plaintiff’s expectations of her performance were high since she had always been a top-seller at the Oregonian. Instead of the top review expected according to her work history, she broke into tears upon receiving her personal evaluation that had nothing to do with her sales performance. It dealt only with insignificant work place procedures (see (Exhibit 2) of VINEYARD’S DECLARATION page 6 of 6). Following the Plaintiff’s emotional breakdown at work, Defendant Vineyard and Guilard retracted verbally much of their critique of the Plaintiff’s performance at work. (See Exhibit B)

 

Page 2 DECLARATION OF VINEYARD

1. Lines 12, 13, 14 and 15 “I overheard Plaintiff make inappropriate and unprofessional comments to potential customers on her sales calls. These comments included statement about her personal finances, as well as statements about being unwilling or unable to look up promotional subscriber.”

 

Answer: Until Plaintiff was informed by management that her Sales Calls were being monitored while Defendant Vineyard was out of the room on vacation, the statements she (Plaintiff) had made to potential customers were inappropriate. This had never been an issue before. See (Exhibit B) Plaintiff states that The Oregonian’s weekly and sometimes daily changes in business commission quotas and sale promotion structure would often confuse employees about their ability to accurately discern and explain sales promotions to new customers. This became an ultimate challenge to the Plaintiff with unprecedented exposure to “false leads” and to a new breed of clientele with whom the Plaintiff was forced to engage concerning esoteric details about ever-changing newspaper subscription offers.

 

Page 2 of DECLARATION OF VINEYARD

1. Lines 16 and 17, “Plaintiff was unreceptive to my communications with her about strategies to improve her sales calls.”

 

Answer: This has no merit whatsoever and are more concocted charges made by the Defendants in paragraph 13.

 

Page 2 of DECLARATION OF VINEYARD

1. Line 20, 21, 22 “”Plaintiff was terminated on March 25, 2011, for a multitude of reasons including misconduct, tardiness, absenteeism, and failure to follow company policies and procedures.

 

Answer: This statement by the defendant is false. Plaintiff was told by the Defendant over the phone that her termination was solely because of attendance. There was no mention of misconduct, absenteeism and failure to follow company policies and procedures. Plaintiff was never informed that anything beyond what Vineyard stated as “attendance” was of consideration for her termination. The additional accusations came only after Plaintiff reported to BOLI and pursued legal action against the Defendants. The Plaintiff never thought her job was in jeopardy for misconduct. In fact it was only after Plaintiff questioned her superiors about business practices that were excessively harming her and her co-workers that The Oregonian Newspaper Corporation and its management became hostile to the Plaintiff and to the others questioning the Oregonian’s business practice.

 

10/16/2012

_____________________________

 

Audrey Ivancie, Pro Se