Wyer v. Tesla, Inc. et al. Document 27

California Court of Appeals
Case No. G062810
Filed January 3, 2024

Appellant's reply brief.: Plaintiff and Appellant: David Wyer Pro Per Two extensions granted for a total of 30 days: 11/27/2023 Granted - extension of time. Due on 12/20/2023 By 21 Day(s) 12/18/2023 Requested - extension of time. Requested for 12/29/2023 By 9 Day(s) 12/19/2023 Granted - extension of time. Due on 12/29/2023 By 9 Day(s)

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Page 1 Court of Appeal, Fourth Appellate District, Division Three
Brandon L. Henson, Clerk/Executive Officer
Electronically RECEIVED on 1/3/2024 at 8:22:36 AM
Court of Appeal, Fourth Appellate District, Division Three
Brandon L. Henson, Clerk/Executive Officer
Electronically FILED on 1/3/2024 by Lilian De La Torre, Deputy Clerk
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
DAVID WYER,
Pro Per and Appellant,
v.
TESLA, INC.
Defendant and Respondent.
APPEAL FROM ORANGE COUNTY SUPERIOR COURT
RICHARD LEE, JUDGE  CASE NO. 30-2019-01118759-CU-OE-WJC
APPELLATE CASE NO: G
APPELLANT’S RESPONSE BRIEF
DAVID WYER, Pro Per and Appellant
8583 IRVINE CENTER DRIVE, #IRVINE, CA Dave@WyervsTesla.com
Page 2
Page 3 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................... PERTINENT LAWS ..................................................................................... JURISDICTIONAL STATEMENT ............................................................ APPELLANT’S INTRODUCTION ........................................................... If an alleged agreement is too confusing to understand, then it’s
unconscionable and inappropriate. As a person with a disability, I
should be able to clearly understand what or if I’m actually signing.
This document was inaccessible.......................................................... RESPONDENT’S STATEMENT OF FACTS ........................................... RESPONSE TO STATEMENT OF THE CASE ........................................ APPELLANT’S REVISED STATEMENT OF CASE .............................. THE SUPERIOR COURT FINALIZED A PREJUDICIAL
ARBITRATION AWARD BASED ON SUPPRESSED EVIDENCE,
LIMITED WITNESS TESTIMONY, DENIED DISCOVERY, AND
REDUCED HEARING TIME, WHICH VIOLATED PUBLIC
POLICY. .............................................................................................. A.
De novo standard of review is procedurally acceptable. ............
B.
I was denied the opportunity to present the case without
prejudice. ............................................................................................. C.
The Superior Court was denied access to review necessary
evidence by both the Arbitrator and Respondent’ attorneys. ..............
Page 4 D.
The Court finalized the Arbitrator’s award predicated on a
prejudicial opinion, containing factual errors, which was heavily
biased in favor of Respondent in violation of public policy based on
excluded evidence. .............................................................................. F.
The Arbitrator denied me the ability to conduct reasonable
discovery. The Arbitrator reduced my evidentiary hearing time.
Arbitrator denied me the ability to conduct reasonable discovery. ..... G.
The Court had the authority to vacate the Arbitrator’s Award and
didn’t based on insufficient evidence and underwhelming
representation. ..................................................................................... H.
The Court didn’t have access to necessary testimony essential to
make a non-prejudicial decision. ......................................................... I. The Arbitrator abused his discretion when he refused request to
conduct necessary discovery. .............................................................. K.
The Superior Court based its finalized outcome on substantial
prejudice through an organized and prejudicial adjudication system
that favors Tesla. ................................................................................. CONCLUSION ........................................................................................... CERTIFICATE OF COMPLIANCE .......................................................... ATTACHMENT A – DECLARATION OF SHARON I. LINK................
Page 5 TABLE OF AUTHORITIES
Cases
(People v. Brooks (1980) 26 Cal.3d 471, 484.) ........................................... Ampex Corp v. Cargle (2005) 128 Cal.App.4th 1569, 1573. ...................... Angelia P. (1981) 28 Cal.3d 908, 918 ......................................................... Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189,
198 ........................................................................................................... California Code of Civil Procedure section 1286.4 .................................... Christine v. Foremost Ins. Co., 785 F.2d 21 584, 586-587 ......................... Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442 ....................... Gonzales v. Interinsurance Exchange (1978) 84 Cal. App. 3d 58, 63 [Cal. Rptr. 28 ............................................................................................ Hill v. Seaboard Coast Line Railroad Co., (11th Cir. 1989) 855 F.2d 804,
811 ........................................................................................................... In re Angelia P. (1981) 28 Cal.3d 908, 918 ................................................ McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 .......................... Moncharsh v. Heily & Blase, 3 Cal.4th 1 (1992) ........................................ Mooney v. Holohan, 294 U.S. 103, 112 (1935)..................................... 26, Napue v. Illinois, 360 U.S. 264 (1959) ................................................. 26, Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) Cal.App.4th 1021, 1035......................................................................... Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) Cal. App. 4th 1021, 1035......................................................................... People v. Hawkins (2002) 98 Cal.App.4th 1428, 1450 ............................... People v. Sanchez (2016) 63 Cal.4th 665 ................................................... People v. Sanchez (2016) 63 Cal.4th 665, 686 ........................................... Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US),
LLC (2021) 55 Cal.App.4th 223, 246 .....................................................
Page 6 Royal Alliance Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092 . 60,
Schlessinger v. Rosenfeld, Meyer & Susman (1995) 40 Cal. App. 4th 1096,
1110 ......................................................................................................... Tamaney v. Atlantic Richfield (1980) 27 Cal.3d 167, 170 ......................... Vinhnee (9th Cir. BAP, Dec. 16, 2005) 336 B.R. 437 ................................ Wherry v. Award Inc. (2011) 192 Cal.App.4th 1242 ........................... 16, Statutes
Ca. Civ. Proc. Code § 1294 ................................................................... 20, Cal. Code Civ. Proc. § 340.6 ....................................................................... Cal. Evid. Code § 1200................................................................................ Code of Civil Procedure § 1285 .................................................................. Code of Civil Procedure § 1286.2 ............................................................... Code of Civil Procedure section 1094.5 ...................................................... Code of Civil Procedure section 1281.85 .................................................... Code of Civil Procedure section 1285 ......................................................... Code of Civil Procedure, section 904.1, subdivision (a)(1) ........................ Gov. Code § 12940(k) ................................................................................. Gov. Code, ' 12926, subd. (i) ....................................................................... Labor Code § 1102.5 and § 1102.6 ............................................................. Pursuant to Code of Civil Procedure § 1285 ............................................... Pursuant to Code of Civil Procedure §1286.2 ............................................. Other Authorities
Cal. Government Code § 12940; Guz v. Bechtel National, Inc. (2000) ..... JAMS Rule 4. Conflict with Law ................................................................ JAMS Rule 6. Preliminary and Administrative Matters ............................. Rules
California Code, Labor Code - LAB § 1102.5 ............................ 9, 12, 13,
Page 7 Rule 8.155(a) of California Rules of Court ................................................. Rule 8.155(a) of the California Rules of Court ........................................... Rule 8.4 Misconduct .................................................................................... Constitutional Provisions
Cal. Const., art. VI, § 10..............................................................................
Page 8 GLOSSARY
Malinger(er): "To pretend to be ill to escape duty or work" is to
malinger. Malingering is not a psychiatric illness. Malingering is associated
with anti-social personality disorder and histrionic personality disorder. It’s
a slur that has been historically used to defame or malign individuals of
other races, religions, and now individuals with disabilities through
propaganda and misinformation.Whistleblower: A “whistleblower” is an employee who discloses
information to a government or law enforcement agency, person with
authority over the employee, or to another employee with authority to
investigate, discover, or correct the violation or noncompliance, or who
provides information to or testifies before a public body conducting an
investigation, hearing or inquiry, where the employee has reasonable
cause.
Anti-defamation League, “Our Mission and History,” Even a U.S. Army training manual advises
that Jews are “more apt to malinger than the native born.” Following ADL protests, the manual is
promptly destroyed on orders of President Woodrow Wilson., 1910,
https://www.adl.org/about/mission-and-history.
1. Sade Udoetuk, Deepa Dongarwar, and Hamisu M. Salihu, “Racial and Gender Disparities in
Diagnosis of Malingering in Clinical Settings,” Journal of Racial and Ethnic Health Disparities 7,
no. 6 (2020): 1117–23, https://doi.org/10.1007/s40615-020-00734-6.
Division of Labor Standards Enforcement, Whistleblowers are protected, 2023,
https://www.dir.ca.gov/dlse/WhistleblowersNotice.pdf.
Page 9 PERTINENT LAWS
California Code, Labor Code - LAB § 1102.Labor Code 1102.5 LC prevents employers from retaliating for disclosing a
violation of or noncompliance with a law.
OR
Providing information or testifying before any public body conducting an
investigation, hearing or inquiry about what you reasonably believe is a
violation of or noncompliance with a law or regulation.
Page 10 JURISDICTIONAL STATEMENT
The Superior Court of Orange County, as presided by Judge Richard
Lee, finalized the decision made by Hiro Aragaki based on his decision
made through JAMS arbitration. The Fourth Appellate District, Division
Three has jurisdiction to review the challenged decision under Cal. Const.,
art. VI, § 10. This appeal is from the judgment of the Orange County
Superior Court and is authorized by the Code of Civil Procedure, section
904.1, subdivision (a)(1).
Page 11 APPELLANT’S INTRODUCTION
Appellant Pro Per Diagnosed with ASD
I’m David Wyer. I’m a 66-year-old man clinically diagnosed with
autism spectrum disorder-1, more formerly known as Asperger’s disorder. I
do have a disability (ASD) despite Respondent attorney Hartwell’s (Burke,
Williams & Sorenson) claims. I’m not delusional. I’m not a malingerer. To
be diagnosed as a malingerer, a specific test had to be administered. Tesla’s
paid psychiatrist didn’t administer this test.4 Respondent’s Closing Brief
was filled with hurtful inaccuracies, blatant misstatements of fact, and
willful defamation of my character. [Aug. Rec. Vol. 28 Ex 1]
Malingering is a term that has been used to broadly marginalize
ethnic, religious, and racial groups.5 Hartwell’s statements have done a
tremendous disservice to me and other individuals with ASD.
Appellant is Over the Age of I was born on February 10, 1957; well over the age of 40 during the
time of grievances. Around March 8, 2015, I was diagnosed with (ASD-I,
formerly known as Asperger’s syndrome) by my board-certified
psychiatrist. [Aug. Rec. Vol 28 Ex. 2]
Diagnosed later in life,6 the U.S. CDC estimates that 1% of the
world's population has ASD. My wife and my son are clinically diagnosed
with ASD. There’re an estimated 74 million of us worldwide. We aren’t
malingerers. We are consumers, employees, and neighbors.
1. Bethany L. Brand et al., “The Utility of the Structured Inventory of Malingered
Symptomatology for Distinguishing Individuals with Dissociative Identity Disorder (DID) from
Did Simulators and Healthy Controls,” European Journal of Psychotraumatology 12, no. (2021), https://doi.org/10.1080/20008198.2021.1984048.
Eliezer Witztum et al., “The Erroneous Diagnosis of Malingering in a Military Setting,” Military
Medicine 161, no. 4 (1996): 225–29, https://doi.org/10.1093/milmed/161.4.225.
Michael Davidovitch et al., “Late Diagnosis of Autism Spectrum Disorder after Initial Negative
Assessment by a Multidisciplinary Team,” Journal of Developmental & Behavioral Pediatrics 36,
no. 4 (2015): 227–34, https://doi.org/10.1097/dbp.0000000000000133.
Page 12 Appellant Pro Per is a Shareholder
I hold a few shares of Tesla stock; therefore, I’m a shareholder. My
case doesn’t appear on Tesla’s Q3 SEC Filings.When I was illegally fired, I was the primary breadwinner for my
fully autistic son. My co-workers knew about Jim. I told Rollins about my
son’s first-time “date” with a girl in December 2015 at SolarCity.
Appellant is Whistleblowing - Labor Code - LAB § 1102.Pursuant to California Code, Labor Code - LAB § 1102.5, it’s
unlawful for employers to retaliate against employees for Whistleblowing
in accordance with DFEH. This is Whistleblowing. [Aug Rec Vol 28 Ex 3]
Witness to Suspected Criminal Misconduct
Gross inaccuracies, substantial prejudice, and conflict of interest are
grounds for a de novo appeal. Pursuant to California Code, Labor Code LAB § 1102.5, I’m free to disclose, and free from retaliation, which is
forbidden.
Kojima (Burke, Williams & Sorensen, LLP) stated that I have no
grounds for appeal because arbitration awards are generally immune;
generally, doesn’t mean always. Kojima also stated: “Thus, if the petition to
confirm the arbitration award could’ve been upheld on any basis, the trial
court judgment will be affirmed.” The word “if” suggests that the award
might not be affirmed if substantial evidence is presented to the court at a
later date to reconsider and possibly reverse earlier decisions.
Respondent’s attorney, Kojima (Burke, Williams & Sorensen, LLP)
stated that my Appellant’s Opening Brief lacked citations and was filled
with scattershot arguments. I’m not an attorney. Kojima isn’t an Appellate
Tesla Q3 Results, “Certain Investigations and Other Matters,” TSLA-20230930, October 2023,


Page 13 Justice. It’s improper and disrespectful to Appellate Justices to cite cases
incorrectly.
Respondent’s brief was filled with inaccuracies regarding basic facts
in my case, including witnesses and evidence. According to all emails in
my possession between Attorneys, Kojima’s name doesn’t appear
anywhere in any of them. I’m a data management expert and extensively
analyzed Respondent’s content with my tools of trade. I found suspected
egregious misconduct, not only by my lawyers, but by lawyers representing
Tesla. Is Tesla represented by ‘Burke, Williams & Sorensen, LLP’ or
‘Burke, Williams & Sorenson’?
Self-Represented Appellant Pro Per
I represent pro per. I didn’t sign confidentiality agreements with
Tesla or Respondent’s attorneys. My attorney and paralegal were
terminated two weeks after losing my case. Then, EJLG terminated my
representation. Their website has “been parked” by GoDaddy. I suspect
their business is defunct.
After reading through all emails that were exchanged between EJLG
and BWS, as well as reviewing the thousands of documents, many of which
were prejudicially cherrypicked submitted to JAMS but not Court, in
accordance with California Code of Civil Procedure section 1286.4, this
Court has grounds to correct or vacate the award. “Joint exhibits” that
Hartwell referred to only included evidence to support her prejudicial case,
including testimony from Hartwell’s hand-picked psychiatrist/IME. Neither
the testimony nor the rebuttal from my IME were included in the joint
exhibit list assessed by Aragaki. Extremely prejudicial.
To this brief, I include eye-witness testimony from a firsthand
witness (Sharon I. Link). She wasn’t allowed to testify. She cannot be
cross-examined at this time; she kept an in-depth timeline of events. Her
testimony was suppressed. [See Attachment A].
Page 14 Confusion over Arbitration Agreement Persists
Substantial confusion persisted over which arbitration agreement to
use. According to Iris della Calzada, my employment was governed by the
arbitration agreement signed with SolarCity on August 20, 2015 as well as
the arbitration provision in the transfer agreement on June 2, 2017.
Radically different agreements, it was never clear which of these
agreements should govern. [Aug Rec Vol 28 Ex 4.]
If an alleged agreement is too confusing to understand, then it’s
unconscionable and inappropriate. As a person with a disability, I should be
able to clearly understand what or if I’m actually signing. This document
was inaccessible.
Via email on November 17, 2020, Respondent’s attorney Arduengo
unilaterally decided that my case would proceed through JAMS. [Aug Rec
Vol 28 Ex. 5]
Arbitration Agreement is Substantively and Procedurally Unconscionable
In Tesla’s transfer agreement, the arbitration language was buried in
the direct deposit section of the document. The transfer process from
SolarCity to Tesla was automated. The document wasn’t presented in
viewable format in its entirety. The signature in the agreement wasn’t
formalized through DocuSign or any other e-verify process. This is not my
signature. The agreement had no opt-out provision, which is a form of
procedural unconscionability. I was offered no meaningful opportunity to
negotiate terms, or reject the arbitration clause. The clause was presented
on a take-it-or-leave-it basis. Wherry v. Award Inc. (2011) 192 Cal.App.4th
1242. [Aug Rec Vol 28, Ex 6]
Courts have often found that arbitration agreements required as a
condition of employment are procedurally unconscionable. Substantive
unconscionability occurred because the agreement was so one-sided in
favor of Tesla without justification. Pinnacle Museum Tower Assn. v.
Page 15 Pinnacle Market Development (US), LLC (2021) 55 Cal.App.4th 223, 246.
Unreasonable “agreement.” One-sided in favor of Tesla. JAMS would
arbitrate.
Tesla’s Misuse of JAMS as Adjudicator
At the time my case went to arbitration, between 2/10/2016 to
02/10/2021, Tesla had 120 closed cases in JAMS, and 85 open cases in
JAMS. To expedite my case, Zachary Kirkhorn, issued a check for
$165,180. [Aug Rec Vol 28 Ex 7.] If this monetary amount is issued to
commence every case, this would mean that Tesla paid JAMS in excess of
$33 million to handle employment disputes, including discrimination cases.
These are hidden costs of “bought and paid for litigation and wins.” This
form of adjudication doesn’t include the ancillary fees associated with
paying attorneys like BWS, or their “psychiatric experts” to testify that a
claimant is paranoid, delusional, and malingering. JAMS arbitration is
prejudicial towards Tesla and is treated like an extension of Tesla’s HR
department to handle “employee disputes.” Rather than paying for liability
insurance or costly lawsuits from safety concerns, the $33 million dollars
paid to JAMS seems like the cost of doing business to an organized system
of judiciary that Tesla uses to pay for their legal wins.
Good Cause for Appeal
Appellant’s case was filed in parallel in Orange County Superior
Court in 2019. Wyer v. Tesla, Inc. et al. was arbitrated through JAMS
arbitration and Hiro Aragaki was the Arbitrator. There was substantial
confusion over which Arbitration agreement should be used which was
detailed in emails exchanged between EJLG and Arduengo. [Aug Rec Vol
28 Ex 8]
Due to the violations of public policy, the potential death threat,
Whistleblower claims such 117+ security holes, and COMMBlocks
hacking, as well as Tesla’s other compliance issues, my case should’ve
Page 16 been litigated in a full jury trial. My case should’ve been presided over by a
highly qualified judge, not hustled into arbitration and adjudicated by
Tesla’s handpicked Arbitrator. The enforced arbitration agreement was only
decided upon by Aragaki months later on August 24, 2022. [Aug Rec Vol
28 Ex. 9] My attorneys inconsistently communicated with me. I do not
agree with the decisions they made. I had no opportunity to protest.
Parallel Litigation in Orange County Superior Court
My case was adjudicated through JAMS arbitration. In parallel, this
case was also litigated in Orange County Superior Court. Judge Richard
Lee finalized the award that was set forth by Hiro Aragaki prejudicially
favoring Tesla, Inc.; Aragaki is not a practicing attorney. He is a college
professor. On Friday, April 29, 2022, page 7, [Aug Rec Vol 29, Ex 10, p. 7]
Aragaki said he flunked math. Kojima said this had no bearing on my
appeal. I disagree. The statement shows a lack of competence and poor
judgment pursuant to the California Bar Association, Rule 1.Competence.8 Aragaki’s educational background has discrepancies.
Aragaki has a potential conflict of interest representing both JAMS and as
the Director of the Center for Negotiation and Dispute Resolution.
The JAMS hearing transcript between Aragaki, DeClue, and
Arduengo that took place on 2/23/22 shows Aragaki’s extensive bias. [Aug
Rec Vol 30 Ex 11 p 29, Lines 22 - 25.].
Aragaki said: “Yeah, I mean, I hear what you're saying. I think a lot
of this is, you know, cultural too; right? I mean, we're the only country in
the world that does prehearing depositions, everyone else responds to the
witness for the first time at a trial….”
1. Chapter 1. Lawyer-Client Relationship, “The State Bar of California,” Rule 1.1 Competence ,
2021, https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-ProfessionalConduct/Current-Rules/Chapter-1-Lawyer

Page 17 Aragaki stated, “But in terms of my decision, I think I should follow
your instructions which is that you agreed to limit it to five each unless
there is showing of good cause.” [Aug Rec Vol 30 Ex 11 p 30, Lines 16 19.]
DeClue stated in response on [Aug Rec Vol 30 Ex 11 p 30 lines through 24], “Mr. De Clue: “We never agreed to that. We asked for 10 or
12 and came there was a compromise at five at the hearing. And it wasn't an
agreement, Arbitrator Aragaki ordered five.”
Then [Aug Rec Vol 30 Ex 11 p 32], there’s additional concerns that
Tesla wasn’t paying their JAMS bill, which suggests limits that Aragaki
placed on the proceeding could also have been due to a budgetary
constraint on Tesla’s part.
Moreover, pursuant to JAMS Rule 6. Preliminary and
Administrative Matters (c) If, at any time, any Party has failed to pay fees
or expenses in full, JAMS may order the suspension or termination of the
proceedings.9 If there was any doubt that payment was forthcoming, then
this could’ve weighed Aragaki’s decision-making. After more
conversation, [Aug Rec Vol 30 Ex 11 p 36 Line 6], Aragaki stated,
“sometimes less is more.” He limited discovery. He denied me due process.
He excluded potential evidence that would prove my case.
Aragaki demonstrated bias culturally and prejudicially by not
allowing my case the full discovery that was needed. I live in the United
States. I’m a resident of the state of California. My due process was denied
by Aragaki. Wyer v. Tesla, Inc., et al wasn’t an international law case. In
fact, JAMS Rule 4. Conflict with Law states: “If any of these Rules, or
modification of these Rules agreed to by the Parties, is determined to be in
JAMS, “Comprehensive Arbitration Rules and Procedures: Jams Mediation, Arbitration, ADR
Services,” Comprehensive Arbitration Rules and Procedures | JAMS Mediation, Arbitration, ADR
Services, 2021, https://www.jamsadr.com/rules-comprehensive-arbitration/#Rule-5.
Page 18 conflict with a provision of applicable law, the provision of law will govern
over the Rule in conflict.”De Novo Appeal is Proper
I request a de novo appeal of my entire case pursuant to Ca. Civ.
Proc. Code § 1294.2. This states my appeal shall be taken in the same
manner as an appeal from an order or judgment in a civil action. Upon an
appeal from any order or judgment under this title, the court may review the
decision and any intermediate ruling, proceeding, order or decision which
involves the merits or necessarily affects the order or judgment appealed
from, or which substantially affects the rights of a party (me).
Augmentation of the Record Fills Gaps
Pursuant to Rule 8.155(a) of the California Rules of Court, I
augmented the record on appeal to include documents in this case that were
not included in the Clerk's Transcript. These records and other collateral
were freely given to me by my former counsel. Rule 8.155(a) of California
Rules of Court permits the augmentation of the appellate record and
specifically under Rule 8.155(a)(1) allows a certified transcript or
document not designated under Rule 8.130 to be augmented and permitted.
It’s well established that this rule is to be construed liberally. (People v.
Brooks (1980) 26 Cal.3d 471, 484.)
I have good cause to augment the record. There were thousands of
pages of documentation that were suppressed and denied submission to the
trial court.
Widespread Discrimination at Tesla
On February 28, 2021, Hartwell sent my former attorney an email
stating, “Tesla is not insured for the conduct in Claimant’s complaint.”
JAMS, “Comprehensive Arbitration Rules and Procedures: Jams Mediation, Arbitration, ADR
Services,” Comprehensive Arbitration Rules and Procedures | JAMS Mediation, Arbitration, ADR
Services, 2021, https://www.jamsadr.com/rules-comprehensive-arbitration/#Rule-4.
Page 19 [Aug Rec Vol.30 Ex 12] Alleged discrimination and retaliation at Tesla are
so widespread that on September 28, 2023, the EEOC sued Tesla for
allowing widespread racist harassment of Black employees and retaliating
against Black workers who spoke out.RESPONDENT’S STATEMENT OF FACTS
A. The First Amended Complaint
I do have ASD and hypertension. I was terminated illegally in what
was originally referred to as a “lay-off,” one month after I blew the whistle
about the COMMBlocks sabotage incident. My eye-witness directly heard
Rollins. Prior to illegally terminated me, Rollins wrote emails to Serrano
stating that he wanted someone else in the room with him and the morning
that Rollins and Serrano met with me on January 18, 2019, they told me
that I was being “laid-off.” In Tesla’s Notice of Separation, Tesla sent me a
document that was titled: Telling Family Members You’ve Been Laid Off.
[Aug Rec Vol 30 Ex 13] I was illegally terminated. I reported sexual
harassment, a perceived death threat, and potential sabotage. [Aug Rec Vol
30 Ex 14]
On December 9, 2021, under-oath, Schafer stated that he had been
“laid off.” Lay-offs aren’t a Reduction in Force. I was replaced by an
individual (Palaneeswar Chittoor) who was roughly half my age three days
later. Age discrimination. Chittoor was paid 1.5 times my salary. indicating
My termination wasn’t a RIF due to Tesla’s alleged financial problems per
Hartwell’s assertion. I requested Chittoor’s testimony. Harwell wouldn’t
allow this. She suppressed evidence. [Aug Rec Vol. 30 Ex 15]
I was retaliated against in violation of FEHA and after blowing the
whistle. (1) I engaged in the protected activity of reporting sexual
U.S. Equal Employment Opportunity Commission, “EEOC Sues Tesla for Racial Harassment
and Retaliation,” US EEOC, 2023, https://www.eeoc.gov/newsroom/eeoc-sues-tesla-racialharassment-and-retaliation.
Page 20 harassment, the perceived death threat, and the alleged COMMBlocks
sabotage. Perceived safety issue; (2) I was adversely terminated in violation
of public policy. Not a lay-off. I was replaced by a younger worker; and (3)
One month after the email exchanges with Ryan Flores regarding suspected
sabotage, and after reporting the sabotage to Rollins, Rollins informed me
that I was being laid-off. Next, Respondent’s attorney Jaime Bodiford
falsified evidence on June 4, 2019, regarding the death threat claim. [Aug
Rec Vol 30 Ex 16]
B. The Case was Ordered to Arbitration
Respondent’s Attorney Kojima stated that all claims were related to
my employment with Tesla. On June 2, 2017, I transferred from SolarCity
to Tesla through an online automated transfer process. My actual signature
is not on the agreement. The signature shown wasn’t e-verified. The
transfer agreement was procedurally unconscionable. I was offered no way
to negotiate terms, or reject the arbitration clause. The clause was offered
on a take-it-or-leave-it basis. [See Aug Rec Vol. 28 Ex 6] Wherry v. Award
Inc. (2011) 192 Cal.App.4th 1242.
C. Response to The Arbitrator Issues a Discovery Plan
I didn’t select Hiro Aragaki. My attorneys didn’t select Hiro
Aragaki. Tesla said no to all other suggestions. Through Attorney
Arduengo, Tesla demanded that JAMS arbitrate.
Respondent’s attorney Kojima stated that Aragaki stipulated that my
case didn’t warrant more than 5 days. My attorney didn’t agree with
Aragaki’s decision as Aragaki misstated. Tesla was already late in paying
their JAMS bill and Aragaki voiced concern about Tesla’s payment before
proceeding with my case [Aug Rec Vol. 30 Ex 17 pages 32 - 34]
D. The Final Award in Favor of Respondents
Aragaki ruled in favor of Tesla. Given the particular JOINT Exhibit
List exhibits Aragaki mentioned were added to the JAMS record in his
Page 21 closing brief, it's possible that Aragaki wasn’t allowed to see any evidence
that wasn't overtly prejudiced in Tesla's favor. For example, the testimony
of Rosenberg/Tesla’s IME, was included in the JAMS record. But
testimony from Dr. Nolan, who was my IME, was omitted. So was her
strong rebuttal of Dr. Rosenberg’s testimony. [Aug Rec Vol. 30, Ex 18 and
19]. I didn’t appeal through JAMS. I’m appealing the decision of the
Superior Court to finalize the award. Arbitration is governed by statutes,
rules and contracts, and Arbitrators are answerable to the courts. These
standards are adopted under the authority of Code of Civil Procedure
section 1281.85 and establish the minimum standards of conduct for neutral
Arbitrators. Aragaki prejudicially took the word of my former co-workers,
who were not forthwith in their testimony. [Aug Rec Vol. 30 Ex 20]
RESPONSE TO STATEMENT OF THE CASE
Factual Errors Still Persist
Factual errors persist. Aragaki rendered his opinion. I had no
opportunity to challenge erroneous testimony or fact-check statements.
Aragaki wasn’t familiar enough with my case. Inaccuracies persist.
Hartwell omitted evidence. In her closing brief, Hartwell downplayed
suspected concerns regarding suspected sabotage. [Aug Rec Vol. 30 Ex 21]
By default, this erroneous evidence was taken as truth. Judge Lee
rendered his judgment based on misstatements and omissions. Many errors
that exist in the record were based on hearsay evidence. Cal. Evid. Code §
1200. Fact-checking was impossible. Respondent’s attorney Hartwell
suppressed key testimony and evidence that she supplied to Aragaki.
Prejudicial outcome. Justice denied. This intentional exclusion of evidence
potentially implicates her in Rule 8.4 Misconduct, which adversely reflects
on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other
respects. Sadly, I believe she engaged in conduct involving dishonesty,
fraud, * deceit, or reckless or intentional misrepresentation. She engaged in
Page 22 conduct that was prejudicial to the administration of justice.12 Emails
exchanged between her and my former attorneys demonstrate my claims.
[Aug Rec Vol. 31 Ex 22]
The Superior Court relied on evidence lacking solid foundation.
Evidence was suppressed, misrepresented or otherwise mishandled. See
Mooney v. Holohan, 294 U.S. 103, 112 (1935). In Napue v. Illinois, U.S. 264 (1959). The Arbitrator’s award was an abuse of discretion and
substantially prejudiced my rights and due process. Pursuant to Code of
Civil Procedure section 1094.5; (1) Procedural and substantive due process
denied; (2) arbitration didn’t cure my claims; and (3) the Arbitrator’s award
was an abuse of discretion. Evidentiary rulings and limitations on discovery
provided a basis for vacating an award because the misconduct
substantially prejudiced my ability to present material evidence in support
of my case.” Schlessinger v. Rosenfeld, Meyer & Susman (1995) 40 Cal.
App. 4th 1096, 1110 [Aug Rec Vol. 31, Ex 23-].
Procedural Errors Still Persist
Numerous procedural errors persist. Exhibits that were referenced
and listed by Respondent’s attorneys were suppressed to the Superior
Court. Hartwell excluded any evidence of Respondent’s overall misconduct
and potentially unlawful or unseemly conduct. [Aug Rec Vol. 31, Ex 24].
Respondent’s attorneys referred to other documents as being in
“native format.” Native documents are internal documents presented as
tangible evidence. Respondent’s attorneys produced documents that were
exported from various applications to editable, and often heavily redacted
Excel spreadsheets. In Vinhnee (9th Cir. BAP, Dec. 16, 2005) 336 B.R.
437, computer-generated, non-image documents are susceptible to

The State Bar of California, The State Bar of California, 2018,
https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-ProfessionalConduct/Current-Rules.
Page 23 challenge. Computer printouts are self-authenticating. (See Ampex Corp v.
Cargle (2005) 128 Cal.App.4th 1569, 1573.) California case law has drawn
a distinction between records that a computer generates on its own and
records that a human operator inputs into the computer. (See People v.
Hawkins (2002) 98 Cal.App.4th 1428, 1450.) Most documents produced in
“native format” contained content that was copied and pasted into Adobe
Acrobat PDFs from editable Microsoft Word or Excel files source files, as
was most notably indicated by the copy and paste error made by Tesla’s
Deputy General Counsel, Employment, Jaime Bodiford when she
introduced the time stamp error into the “Get rid of the Dave” document.
She also deleted the gif of the woman with the word DEAD. She previously
worked for BWS.13 Apparently, she knew both Hartwell and Arduengo. I
think both Hartwell and Bodiford are from Texas.The Superior Court made a prejudicial ruling based on insufficient
evidence, suppression, and alleged misconduct. See Mooney v. Holohan,
294 U.S. 103, 112 (1935). In Napue v. Illinois, 360 U.S. 264 (1959). My
case is a prima facie case. The Arbitrator and Judge Lee should’ve ruled in
my favor.
APPELLANT’S REVISED STATEMENT OF CASE
Respondents terminated me because I was of advanced age and had
disabilities and medical conditions that Tesla didn’t want to accommodate.
I whistle-blew on misconduct and suspected sabotage. Rollins retaliated
against me after I reported him and other co-workers for sexual harassment
and bullying. This was required by “Sexual Harassment and Bullying
Training Program.” [Aug Rec Vol. 31, Ex 25].
LinkedIn, “Jaime Bodiford - Tesla,” LinkedIn, 2023,
https://www.linkedin.com/in/jaimebodiford/.
1. Cheryl Johnson-Hartwell TX License Date: 11/07/1997, “State Bar of Texas,” Find a Lawyer,
2021,
https://www.texasbar.com/AM/Template.cfm?Section=Find_A_Lawyer&template=%2FCustomso
urce%2FMemberDirectory%2FMemberDirectoryDetail.cfm&ContactID=197012.
Page 24 Defendant’s entire defense argument is that I was terminated as part
of a RIF. Not so. Schafer was “laid-off.” He received approximately two
months of warning and an unknown severance. Schafer was treated much
differently than me upon his “separation.” [Aug Rec Vol. 31, Ex 26].
During the arbitration proceeding, Virudhagiri said Rollins said I lacked
criticality or was non-performant. [Aug Rec. Vol. 32, Arbitration Transcript
Day 1, p. 140 - 141].
I was clearly discriminated against. Osterman kept his job even after
he and Rollins bantered that Structural Engineers were “vipers” and “vipers
keep finding new vipers.” [Aug Rec Vol. 33, Ex 28]. Osterman allegedly
was promoted to Software Engineer.15 Rollins appears to have been
terminated from Tesla after Virudhagiri stated during his testimony: “if
there is one throat to choke, it would be Christopher Rollins' throat to choke
when it comes to all outcomes of the energy business.” [Aug Rec Vol. 33,
Ex 29 Arbitration Transcript Day 1, p. 154 & Ex 40]. According to
Business Insider, Virudhagiri, is now at X, née Twitter.I was the oldest software engineer at Tesla when I was fired. I have
worked as a software engineer for decades; I thrive on writing code to
manage data and automate computer-aided design (CAD) processes. I’m an
expert in my line of work. Tesla argued that I was eliminated as a result of
an alleged RIF. Tesla didn’t eliminate my position pursuant to a RIF; Tesla
replaced me with another software engineer who was significantly younger
three days after terminating me. Rollins argued that my work performance
had diminished. I asked Rollins to record my last review, which was done
via Zoom; I suspected he was going to grossly mischaracterize my software
LinkedIn, “Cory Ostermann - Tesla,” LinkedIn, 2023,
https://www.linkedin.com/in/coryostermann/.
Kate Duffy, “Elon Musk Enlists More than 50 Tesla Workers, 2 Boring Company Staff, and
One Neuralink Employee to Work at Twitter Post-Takeover, Report Says,” Business Insider,
2022, https://www.businessinsider.com/elon-musk-pulls-tesla-boring-company-neuralinkemployees-twitter-report-2022-11.
Page 25 engineering efforts. Other than violating copyright laws by sending me an
electronic copy of a C# programming book he owned, Rollins nothing to
promote or facilitate my success in his managerial capacity. He arranged
for me to fail; despite that I personally saved the company hundreds of
thousands of dollars-worth design time hours. My last achievement was
automating a process that reduced a set of Solar Roof design tasks from minutes to 15 seconds. I was lauded for this achievement. [Aug Rec Vol.
33, Ex 31] One month before Tesla fired me, I received a merit raise and
$20,000.00 in Tesla stocks. These were taken from me, one month to the
day after I reported what I reasonably believed to be sabotage to Flores and
Rollins.
Telsa didn’t eliminate my position. The eliminated me at the age of
sixty-one. Tesla immediately replaced me with another software engineer
that was almost half my age. Chittoor’s salary was stipulated to during the
arbitration proceeding. He made 1.5 times my salary. Tesla paid for his
immigration expenses from India and moving expenses to Fremont.
Tesla terminated me immediately after I whistle-blew on what I
suspected was sabotage, and after I informed Tesla that I suffered from
(“ASD”) and requested accommodations to stop the hostile work
environment, discrimination, harassment, and retaliation. Rollins testified
that he didn’t use a formal method to evaluate my performance. According
to Rollins’ testimony, he created a “stacked-ranked” list based on his
prejudiced view of criticality and performance. This wasn’t uniformly
applied standards practice.
I suffered a hypertensive episode as a result of work-related stress,
which required medical attention and doctor-ordered medical leave. I was
retaliated against and subsequently terminated after I reported to HR
(Serrano) that my manager and co-workers were engaging in sexually
harassing conduct on the Tesla communications channel. Rollins and
Page 26 Schafer referred to their penis sizes and Hijaz posted videos of women
twerking. Stormy Daniels appeared the night before on Jimmy Kimmel
talking about this topic.
It's undeniably clear that Respondents are liable for various
violations of the FEHA and the Labor Code. Tesla wrongfully terminated
me in violation of well-established public policy and whistleblowing laws.
Pursuant to California Code, Labor Code - LAB § 1102.5, I’m entitled to
disclose violations of state or federal statutes, free from retaliation.
Evidence clearly suggested that Tesla terminated me for the following
reasons:
Tesla wanted a much younger employee to perform my job duties,
one day after Tesla terminated my employment pursuant to Tesla’s alleged
“RIF”.
I was diagnosed with (“ASD”) and needed accommodations.
Maha Virudhagiri testified that policies are ignored and not enforced
at Tesla. [Aug Rec Vol. 33, Ex 32 Arbitration Transcript Day 1, p. 154].
I was terminated after I requested accommodations that would stop
the hostile workplace, discrimination, and retaliation. I’m very ruleoriented. I blew the whistle on misconduct.
Tesla learned that I had hypertension. I required medical attention
after I experienced a hypertensive crisis as a result of the discriminatory
work requirements that Rollins unfairly assigned. [Aug Rec Vol. 33, Ex
33].
I reported Rollins and several of my co-workers for making sexual
comments on Telsa’s communications channel that referred to their penis
size and posted a sexually charged music video that depicted twerking and
breast baring. The video was sexually suggestive dancing characterized by
rapid, repeated hip thrusts and shaking of the buttocks especially while
Page 27 squatting. Ms. Hijaz rigorously defended her behavior because she enjoys
“fun conversations” with colleagues. [Aug Rec Vol. 33, Ex 34].
I wanted to work in a professional work environment that
emphasized non-sexual collaboration, consumer safety, and profitability,
which was why I sought accommodations. [Aug Rec Vol. 33, Ex 35].
I wanted Tesla to be profitable to facilitate a decent fourth quarter. I
was not rewarded for emphasizing safety and upholding proper policies; I
was punished. [Aug Rec Vol. 33, Ex 36].
I thought my colleagues should adhere to proper software testing
practices without using improper “phantom modules” or spur-of-themoment testing plans. [Aug Rec Vol. 33, Ex 37].
I saw and reported what I viewed as potential sabotage that I
perceived could’ve been related to the Walmart roof fires.17 Tesla had
already allegedly not “handled Walmart’s complaints about the fires” and
“the fires were the result of ‘years of gross negligence.’”
My younger co-workers didn’t want to adhere to rules or policies, as
evidenced by the “viper” exchange between Osterman and Rollins.
I was threatened with what I perceived to be a death threat. My
manager was untruthful to HR after I followed company policy. I sought
legal remedies.
Deputy General Counsel, Jaime Bodiford falsified evidence nearly a
year later. Rosenberg and Hartwell both stated on the record that I’m a
paranoid malingerer.
I developed anxiety and had a hypertensive crisis that later resulted
in a Worker’s Compensation payout.
Sean O’Kane, “Walmart Drops Lawsuit against Tesla over Solar Panel Fires,” The Verge,
November 5, 2019, https://www.theverge.com/2019/11/5/20949661/walmart-tesla-lawsuitsettlement-solar-panel-fires-solarcity.
Page 28 Apparently, Tesla prejudicially favors younger employees from a
different generation who were not offended by locker-room-type
discussions regarding employees’ penis sizes and circulation of
inappropriate, sexual videos. [See Aug Rec Vol. 33, Ex 38].
Allegedly, Mr. Rollins and Tesla made the pre-meditated decision to
terminate me in November 2018. Rollins waited two months to inform me
that I was being terminated. Aggravated. Cruel. Inhumane. No notice. We
had no income. Rollins was gleeful during the termination process.Appellant’s Credibility
I’m nearly 67-years-old. That’s three years shy of 70. I love to work.
My work is where I experience social inputs from others. I gain my sense
of self-worth from work. Losing my job at Tesla completely changed my
life.
Previously, I had a productive career in software engineering, data
management, and CAD applications support as a consultant. I have been in
this profession for 50 years. I reinvented myself repeatedly along the way. I
started my technical career as a draftsman, using pens, pencils, rulers, and
compasses to create engineering drawings. Today I build parametric 3D
solid models in high-end CAD applications. When I learned how to
program, lines of code were input using punch cards. Now I write C# and
VB.NET code in Visual Studio on a workstation laptop.
My dad was a data analyst for the People’s Energy Company in
Chicago, where I was born and raised. He retired after 30+ years and
advanced professionally in his career after starting in the mail room. My
dad died. I was hired at SolarCity. My work at SolarCity/Tesla enabled me
to feel connected to him and carry on his legacy of ensuring we can secure
a sustainable energy future. I was honored to follow in his footsteps.
LinkedIn, “Chris Rollins - UtilityAPI,” LinkedIn, 2023, https://www.linkedin.com/in/christopher-rollins/.
Page 29 Rollins and Tesla illegally destroyed that for me. That’s part of the
motivation that’s driving my ongoing lawsuit against them.
I have roughly five decades of experience working in the
engineering, software development, and data management fields. I could
easily be recognized as an expert in countless areas pertaining to my
profession. I have completed projects for more than 100 companies,
indicating I’ve been successful working with all kinds of people despite my
disability. I grow and adapt to ensure that I remain up-to-date with new
systems, programs, and technologies. I’m a life-long learner. I continue to
seek and take training.
Unlike all of the Pod members who have left Tesla, I wanted to stay
because of the mission. I needed the job because I was the sole support for
my family, including my fully autistic son(step). When I was illegally
terminated, I thought my life and career were over. We are all aging. The
alternative to aging is death. I do have a disability. I’m not a paranoid
malingerer.
To regain any sense of self-esteem, I adamantly am focused to prove
to the Court that I’m credible and not a malingerer. To do this, I have
compiled and submitted volumes of evidence to the augmented record so
that experts can assess my case and make a determination regarding
whether or not I was treated prejudicially and discriminatorily. I’m highly
perseverative.I lost my job and lifeblood when I was illegally and brutally
terminated. I lost my faith in other humans when Respondent’s attorneys
railroaded me retaliatorily and defamatorily. The Respondents are hurting
others. The pain should stop with me.
Elliot Gavin Keenan, Katherine Gotham, and Matthew D Lerner, “Hooked on a Feeling:
Repetitive Cognition and Internalizing Symptomatology in Relation to Autism Spectrum
Symptomatology,” Autism 22, no. 7 (2017): 814–24, https://doi.org/10.1177/1362361317709603.
Page 30 Respondent’s Witnesses were Not Credible
i.
Allie Arebalo, Sr. Director, HR @ Tesla
Tesla’s Person Most Knowledgeable as to Tesla’s discrimination and
harassment policies was Allie Arebalo. Prior to coming to Tesla, she
worked at Walmart. She is titled as Sr. Director, HR @ Tesla.20 She was
promoted right after providing testimony under oath as to Tesla’s lackluster
discrimination and harassment policies. During her testimony she didn’t
know anything beyond the few pages of policies that Tesla’s attorney
provided to her before her deposition and before her testimony at the
evidentiary hearing. Aragaki admonished her for being evasive and called
her credibility into questions. Moreover, the PMK had no idea how Tesla’s
lackluster policies and procedures were implemented and applied to me
throughout the last year of my employment. [See Aug Rec Vol. 33, Ex 39].
The PMK should’ve been Jezabel Serrano. She is missing.
Arebalo’s testimony emphasizes Tesla’s failure to follow internal
policies and procedures. A Defendant’s departure from following its own
policies is evidence of pretext. (Hill v. Seaboard Coast Line Railroad Co.,
(11th Cir. 1989) 855 F.2d 804, 811; Christine v. Foremost Ins. Co., F.2d 21 584, 586-587.)
ii.
Maha Virudhagiri, Senior Director of Software Engineering
Maha Virudhagiri21 was Tesla’s PMK regarding the alleged RIF
that resulted in my termination. Prior to coming to Tesla, Virudhagiri
worked at Walmart. He openly promoted having a “throat to choke” and
described it as a “figure of speech.” His testimony depicts his lack of
credibility regarding policies, procedures, and uniform application of
standards. Tesla doesn’t seem to adhere to standard policies, and applies
LinkedIn, Allie Arebalo - Sr. Director, HR - Tesla | , 2023, https://www.linkedin.com/in/alliearebalo-33b9b284.
Linkedin, Maha Virudhagiri Engineering, design & product leader - Tesla, 2023,
https://www.linkedin.com/in/mvirudhagiri.
Page 31 them at each manager’s prejudicial whim. Virudhagiri testified that he
received a list of names from various managers under his supervision
establishing who each supervisor wanted to terminate. He compiled a
master list and terminated everyone on the master list. No oversight. No
standard of operation. No uniformly applied policies. Prejudicial.
Elon Musk specifically prohibited Tesla management from
implanting any form of Chain-of-Command management systems.
Virudhagiri and Rollins applied a chain-of-command management
methodology specifically toward me. Rollins went out of his way to order
me to only speak with him in the event that I needed to voice concerns,
report issues, or complain about improper workplace conduct. Virudhagiri
even discussed how software engineer managers play an important role in
“the chain. 28 [See Aug Rec Vol 33. Ex 40 ]. (Record 19:16-25 (“That’s . .
. the chain.”)
iii.
Christopher Rollins, former Senior Manager of Software
Engineering, now alleged Vice President, UtilityAPI
The testimony of both Virudhagiri and Rollins was cold and
calculated. Rollins had clearly created his own subjective guidelines for
“profitability,” “criticality,” and “performance” that were not uniformly
applied. Their testimony clearly suggested that the alleged RIF was used to
hide the fact that I was terminated for unlawful reasons. I was prejudicially
purged due to age, disability, discrimination, and whistleblowing.
It’s an unlawful employment practice in California for an employer
“to fail to take all reasonable steps necessary to prevent discrimination and
harassment from occurring.” (Gov. Code § 12940(k), emphasis added.)
The employer’s duty to prevent harassment and discrimination is
affirmative and mandatory Northrop Grumman Corp. v. Workers’ Comp.
Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035. Rollins failed to
prevent discrimination by terminating me based on what he described as
Page 32 “criticality” and “performance” which was subjectively discriminatory.
When I was fired, Cory Osterman didn’t know how to program at all.
Based on Rollins’ testimony, Rollins’ subjective guidelines were not
uniformly applied.
iv.
Carson Schafer, Former Software Engineer
Schafer posted a link to GIF loop video after conducting a search of
the term “RIP” which stands for Rest is Peace, which was directed at me in
the MatterMost channel. The GIF loop video showed a woman collapsing
and the word “DEAD” in red letters. Schafer posted this immediately after
posting the “Kill the Dave” post, which both Rollins and Schafer denied
under oath. I took this as a serious threat. [See Aug Rec Vol 33. Ex 41].
I reported this threat to Rollins. [See Aug Rec Vol 33. Ex 42]. I was
genuinely afraid and worried to the point that I have continued to seek
therapy for the trauma that I have experienced. Schafer testified that he
wasn’t counseled or disciplined for posting this message. Tesla didn’t
provide any evidence that they had established any safeguards to prevent
these types of GIF videos from circulating on the communications channels
between employees. Anecdotally, on December 14, 2021, a Tesla employee
was arrested in connection to the shooting death of a co-worker at the
company's Fremont factory, police said Tuesday.The post was subsequently changed to “Get Rid of the Dave,” and
prior to sending it to my former attorney, Jaime Bodiford modified the
document to include a time stamp error when she edited it. She also
changed the GIF in her version. Tesla’s counsel changed the evidence.
Marianne Favro, “Tesla Employee Arrested in Shooting Death of Co-Worker at Fremont
Factory: Police,” NBC Bay Area, December 15, 2021,
https://www.nbcbayarea.com/news/local/east-bay/tesla-employee-arrested-in-shooting-death-ofco-worker-at-fremont-factory-

Page 33 v.
James Rosenberg, alleged retired forensic psychiatrist
Dr. Rosenberg is not a board-certified forensic psychologist.
Rosenberg’s testimony and opinions were exceedingly suspect, both
procedurally and substantively. Rosenberg allegedly administered the
MMPI-2, which is obsolete. There is no updated training to even learn how
to administer this test. He said it’s out of date. The accepted test is now the
MMPI-3. Rosenberg admits to receiving a rebuttal report from Dr. Nolan,
which he discounted. Dr. Nolan’s record wasn’t included in Respondent
attorney Hartwell’s exhibits that were reviewed by Aragaki.
Rosenberg stated on the record that I didn’t have ASD. He stated
that my treating doctor incorrectly diagnosed me with ASD, despite the fact
that Tesla’s expert doesn’t have a background in diagnosis or treatment of
ASD. He didn’t administer any tests for ASD. I have been seeing a
psychiatrist for many years since I was terminated. I still take medication
for depression and anxiety. Rosenberg has never treated me. He wasn’t
qualified to make any diagnosis regarding this condition. He said I was a
malingerer. He never administered any tests for that either. Rosenberg
provided a defamatory reason as to my medical diagnosis and emotional
distress. He was unquestionably adversarial. Rosenberg offered opinions
that lack medical foundation and basic logic. During his testimony he was
sweaty, agitated, and irrational.
During the cross-examination, he admitted to taking a steroid or
being under the influence. Rosenberg testified as an advocate for Tesla, not
as an objective expert. Even Aragaki admonished Rosenberg and instructed
him to minimize his prejudice. Rosenberg testified like he was reading from
a transcript, which he had open on his computer during his testimony.
Rosenberg provided misleading testimony about the results of the outdated
MMPI test. Rosenberg was extremely adversarial, not objective and
admitted that 70 to 80 percent of his cases were for defense attorneys,
Page 34 which he later corrected to 90 percent. He also stated on page 1362 of the
arbitration transcript for May 5, 2022, that he would charge around $25,for his report and testimony. [Aug Rec Vol 33. Ex 43 & 44]. During his
deposition, Rosenberg stated that he had worked with attorneys Hartwell
and Arduengo on Walmart cases, which he estimated to number between or 12. He estimated that 50 to 70 percent of his employment cases were for
BWS and specifically in duality with Hartwell. Clearly, Rosenberg was
acting out of his scope of competence. He used an obsolete test. This
suggests dual relationships and a conflict of interest pursuant to Ethical
Principles of Psychologists and Code of Conduct23 Most importantly,
Tesla’s expert testified to inadmissible hearsay that should not have been
considered. My former attorneys requested that Aragaki strike Tesla’s
expert’s testimony pursuant to People v. Sanchez (2016) 63 Cal.4th 665,
686.). Aragaki didn’t.
Summary
Considering that Rosenberg makes $25,000 per case, if Tesla had
205 open and closed cases at the time of my arbitration, and if they hire
expert witnesses in every case to defame and disparage plaintiffs and pay
the expert $25,000 per win, this totals $5,125,000.00. If Tesla only pays
$12,000 per case, this is close to $2,500,000 per win. If this is the scenario
that is playing out, there is a lot of money that is unreported and being paid
for Tesla to avoid costly litigation outcomes. This doesn’t include the legal
fees of their attorneys and those billable hours. At times, Respondent’s
attorneys were so confused, Arduengo comingled case data from Walmart
in her emails pertaining to my case. [Aug Rec Vol 33. Ex 45].
Dr. Nolan’s Rebuttal to Rosenberg
vi.
Dr. Jacqueline Nolan, Forensic Psychologist
American Psychological Association, “Ethical Principles of Psychologists and Code of
Conduct,” American Psychological Association, 2017, https://www.apa.org/ethics/code.
Page 35 Dr. Nolan was so frustrated by Rosenberg’s report that she wrote a
rebuttal. Nolan stated that the Trauma Symptom Inventory-2 (TSI-2) she
administered showed numerous statistically significant elevations on scales
related to anxiety, depression, relational avoidance, and posttraumatic
stress.
Dr. Nolan stated that my treating psychiatrist of several years
evaluated and diagnosed me with ASD. Rosenberg didn’t test for ASD;
therefore, his evaluation had no objective basis to confirm or refute this
diagnosis.
Rosenberg made several references to my lengthy, at times
tangential, communication style, which appeared indicative of my difficulty
understanding the appropriate amount of response versus oversharing or
veering from the subject at hand altogether. This type of social
communication is often indicative of ASD.
Dr. Nolan wrote in her report that Rosenberg used the MMPI-2-RF,
which was released in 2008. The newer version of the MMPI, the MMPI-3,
was released in 2020. He should’ve used the more recent test, not one that
was obsolete.
Nolan clearly indicated that I demonstrated significant emotional
distress symptoms that objectively corroborated many of the symptoms that
I noted in my clinical interview with Rosenberg, as well as Dr. Sacks’
medical records that show emotional injury due to my experience working
at and being terminated from Tesla.
Hartwell prejudicially omitted this from the Joint Exhibit List.
Aragaki was unable to see it. Judge Lee was unable to see it. Hartwell left
in Rosenberg’s testimony. This was highly prejudicial and there was no
counterbalance to Rosenberg’s claims that I’m a paranoid schizophrenic
malingerer, which then Hartwell wrote in her Respondent’s brief.
Allegedly, Tesla paid for a psychiatrist $25,000 to administer obsolete tests.
Page 36 vii.
Dayana Hijaz, newly promoted to Associate Manager Software
Engineering
Ms. Hijaz testified on Respondent’s behalf. Despite Respondent’s
attorney’s conjecture that Ms. Hijaz testified for me, which was erroneous.
According to my previous statements, she was lewd, unprofessional, and
inappropriate in the workplace. She has since been promoted to Associate
Manager of Software Engineering.
Ms. Hijaz is a citizen of Lebanon.24 She told me that her father
allegedly holds some sort of affiliation in the Lebanese government. She is
here on a Visa and appears to be a strong nationalist. She has depicted
pictures of herself protesting and standing behind a Lebanese flag, which
she herself posted publicly. [Aug Rec Vol 33. Ex 46].
Hijaz has multiple brothers and sisters who are also residents of the
United States, including a sister in Detroit and a brother near Cleveland. I
don’t know of their citizenship; it’s none of my business. Currently, as of
December 24, IDF is carrying out ‘wide-scale’ airstrikes on Hezbollah as
rockets from Lebanon hit north.25 There is intense fighting along the
Israel/Lebanon border.26 I argue that Hijaz would say whatever she needed
to in order to stay in the United States; Lebanon is a warzone that I imagine
she would absolutely want to avoid. I was the oldest member of the Pod
with a poorly understood disability; she likely wanted to retaliate against
me because I reported her for violations of Tesla’s sexual harassment
policies. Her testimony should be disregarded.

Dayana Hijaz Associate Software Engineering Manager, LinkedIn, 2023,
https://www.linkedin.com/in/dayanahijaz
Emanuel Fabian, IDF says “wide-scale” airstrikes on Hezbollah as rockets from Lebanon ...,
2023, https://www.timesofisrael.com/idf-says-wide-scale-airstrikes-on-hezbollah-as-rockets-fromlebanon-strike-north/.
YouTube, “Intense Fighting Continues along Israel-Lebanon Border,” YouTube, December 26,
2023, https://www.youtube.com/watch?v=ijNBNoLzI-8.
Page 37 viii.
Dr. Roman Garagulagian, Economist
Finally, Dr. Garagulagian testified that the economic damages that
resulted from Telsa’s undeniably wrongful termination was economically
devastating to me. Economically decimated, I was forced to live off my
various savings intended for retirement while I looked for work in a market
that clearly doesn’t what to hire 65-year-old software engineers with ASD
and other medical conditions. I was forced to sell nearly all of my shares in
Tesla stock to make ends meet. Those stocks would be worth hundreds of
thousands of dollars today. I was forced to pay medical expenses out of
pocket for his family, which includes me, my wife, and my adult son who
has autism. The out-of-pocket medical expenses that I have been forced to
pay well exceeded $50,000.00.
Dr. Garagulagian provided a very conservative assessment of my
economic damages that were a direct result of Tesla abruptly terminating
me. Garagulagian’s assessment is based on certainty, not speculation, and
Tesla neglected to provide any evidence, including during cross
examination, to call Dr. Garagulagian’s opinions in to question. When
Tesla examined Dr. Garagulagian at the evidentiary hearing, Dr.
Garagulagian testified consistently with the conclusions and opinions
represented in his Report. I intend to work until I can no longer physically
do so since my software engineering career is fundamental to my being. At
the time he conducted his economic impact evaluation, Dr. Garagulagian
valued my economic damages in the neighborhood of ($1,746,413.00).
[Aug Rec Vol 33. Ex 47]. My former lawyers argued that I should also
receive pain and suffering damages and punitive damages because of the
malicious way I was treated and the egregiousness therein. Colucci v. TMobile USA, Inc. (2020) 48 Cal.App.5th STATEMENT OF FACTS
Page 38 As a lay person, the essence of Due Process for me is to expose “the
Truth, the Whole Truth, and Nothing but the Truth.” I took this oath every
time I was deposed or testified. The arbitration process failed on all three
counts. The result was legal prejudice in favor of Tesla that was then
applied in the Court’s decision.
In JAMS, I was forced to present my case in a vacuum, despite the
fact that the evidence supporting my case was clearly available. I was
denied due process through the JAMS arbitration process I was thrust into.
Tesla is spending millions of dollars on arbitration, which they
always win. I allege they are paying for these wins. The Court was denied
the opportunity to view necessary evidence for me to establish a prima facie
case. The Court finalized the JAMS award predicated on a prejudicial
ruling by Arbitrator Aragaki that contained many factual errors, and was
heavily biased in favor of Respondent in violation of public policy.
Fact 1: I do have (“ASD”), which is a disability.
Fact 2: I transferred from SolarCity to Tesla through a touchless
automated process that was substantively and procedurally unconscionable.
Fact 3: Prior to Rollins becoming my manager, I received
exceptional and excellent marks in my performance reviews. This change
occurred after I started whistleblowing regarding sexual harassment, age
discrimination, and retaliation in alignment with Tesla’s policies, and after I
formally requested accommodations for my disability.
Fact 4: On or about August 31, 2018, I told Rollins that I have ASD.
I attached the letter from my medical provider detailing my symptoms.
Fact 5: I was easily the oldest person in my Pod, and perhaps at
Tesla. Age discrimination occurred. I was almost 62-years-old when I was
illegally terminated. [Aug Rec Vol 33. Ex 48].
Fact 6: Key Tesla employees openly admitted that policies are sparse
and then not consistently applied at all. I observed this fact. It’s the
Page 39 employer’s duty to prevent harassment and discrimination which is
affirmative and mandatory Northrop Grumman Corp. v. Workers’ Comp.
Appeals Bd. (2002) 103 Cal. App. 4th 1021, 1035.
Fact 7: Rollins didn’t apply a fair standard of practice to all
employees in my Pod. Testing plans were insufficient and applied
haphazardly. I allege that Rollins sabotaged my work product to make me
fail so that he could fire me. I wasn’t the worst programmer in the Pod.
Osterman could not program at all and was able to keep his job. Three days
after I was fired, a younger software engineer who was half my age
replaced me. [Aug Rec Vol 33. Ex 49 & 60].
Fact 8: Rollins and other members of the Pod engaged in sexually
charged, unprofessional behaviors that were discriminatory and retaliatory
based on my age and disability.
Fact 9: I was a profitable employee. I saved the company hundreds
of thousands of dollars due to automation and time savings.
Fact 10: I did discover and report what I reasonably suspected to be
sabotage that I was concerned was connected with fires on commercial
buildings with solar panel installations on their roofs. I was fired one month
to the day after reporting this to Rollins.
Fact 11: I received what I perceived to be a death threat in the
MatterMost channel. I reported. Rollins underplayed it and denied it under
oath. I received an email sent through my attorney from Deputy General
Counsel Jaime Bodiford with doctored evidence that changed “Kill the
Dave” to “Get Rid of the Dave.” She also changed the GIF.
Fact 12: Rollins admitted on September 25, 2018 that he didn’t have
AutoCAD software on his system until that time. He had worked for months without the software necessary to do his job. Without it, it wasn’t
possible for Rollins to test the majority of software code I was developing.
Page 40 Fact 13: My disability wasn’t accommodated. Serrano told me that
Rollins could do anything he wanted. The few simple accommodations
Tesla did agree to were never implemented. I was fired instead.
Fact 14: I did have a health emergency (hypertensive crisis) due to
the unrealistic demands that Rollins was singularly placing on me and not
applying uniformly.
Fact 15: Virudhahiri sent a broadcast email referring to another
employee as “one throat to choke.” During his under-oath testimony, he
later referred to Rollins as “one throat to choke.”
Fact 16: Rollins and Osterman referred to a particularly “picky
group of stakeholders” as vipers. Defamatory. Unprofessional.
Fact 17: I have suffered immeasurably through this ordeal. I still
seek therapy. I take medication for stress and anxiety. This ordeal has been
traumatic and life-altering.
Fact 18: Tesla seems to operate under a structured system of
discrimination. When there are no rules or policies are applied loosely, then
there can be no assurance of limiting discrimination.
Fact 19: I was illegally terminated, and Rollins premeditated my
termination. Then, I was forced into a closed system designed to adjudicate
to allow Tesla to win every time, which in turn reinforces the no policy
behavior. [Aug Rec Vol 33. Ex 51].
Fact 20: It appears that Tesla is paying millions of dollars to JAMS,
Arbitrators, paid psychiatric experts, and attorneys in order to gain the
outcomes they demand and expect from this coordinated system. I allege
these are hidden fees meant to be shielded from the prying eyes of the SEC
or any other interested regulatory body.
Fact 21: Tesla’s lawyers prejudicially influenced the outcome of my
adjudication by omitting key testimony and evidence that would prove my
case. Instead, Tesla’s lawyers piled on.
Page 41 Fact 22: I’m a shareholder.
The Arbitration Process
The following statements of facts encompasses an overview of the
entire arbitration process that was shielded from the Court’s view. These
facts show the processes my former attorneys went through in attempting to
adjudicate my case.
Fact 1: JAMS selected the Arbitrator in accordance with Tesla’s
choice.
At the point in time when adjudication of my case was handed off to
JAMS, disputes between my counsel (EJLG) and Tesla’s counsel (BWS)
occurred regarding selection of an Arbitrator. It was initiated by an email
from JAMS that stated,
“In reviewing your arbitration agreement, I note it provides
that parties will select a neutral Arbitrator by mutual
agreement. If unable to do so, they may apply to a court for
appointment of an Arbitrator.
Please advise if the parties would be amenable to using the
JAMS strike and rank process instead. We would provide names. The parties would still have the option to mutually
agree, but if unable to do so, each side could strike two names,
and then rank the rest in order of preference.”
What followed was an exchange of emails between attorneys
regarding the actual selection process. BWS was unwilling to negotiate
anything, so it ended up that Tesla’s preferred ‘JAMS strike and rank
process’ methodology was used to select the Arbitrator.
My former legal counsel (EJLG) wanted to negotiate with Telsa’s
legal counsel (BWS) to jointly select an Arbitrator. BWS declined, which
resulted in the ‘JAMS strike and rank’ process to be utilized, which is what
Tesla wanted. Score: Tesla 1, Wyer
Page 42 Fact 2: Selecting the Arbitrator came through JAMS-Provided
‘Strike and Rank’ List
On February 10, 2021 (my birthday coincidentally), JAMS sent all
the parties an email with the subject ‘2-10-2021 Wyer Commencement’.
This document described ground rules of the arbitration process, indicated
the number of times each participant had utilized the services JAMS offers,
and provided a list of 10 “neutrals” to pick from to serve as the Arbitrator
for my case. I have no idea how that list of neutrals was arrived at, but the
principal attorney at ELJG sent out an internal email to my attorney
indicating “this is a horrible list”.
Ultimately, I was informed via email that Hiro Aragaki was chosen
to be the Arbitrator in my case. Again, this was ultimately a JAMS decision
since the parties couldn’t explicitly agree. Given the huge disparity among
the number of Tesla/BWS cases JAMS handles, vs. the number of
Wyer/EJLG cases they handle, I’m led to conclude Tesla got the Arbitrator
they wanted. Score: Tesla 2, Wyer Takeaways:
i.
EJLG stated that JAMS provided a “bad list”
ii.
Respondent’s attorneys were completely unwilling to
compromise
iii.
Aragaki was chosen by JAMS to be the Arbitrator for my case
through a series of undisclosed methodologies
Fact 3: There were numerous discovery disputes, which Tesla
always won.
The contentious Document Discovery process began. Tesla’s
responses to the Request for Production of Documents my counsel
produced on my behalf were dismissive. Tesla’s counsel objected to almost
everything and largely refused to produce requested documents.
Furthermore, what they did produce was deplorable – incomplete,
Page 43 unreadable, ridiculously redacted, and needlessly redundant. Most of what
they supplied wasn’t even searchable. As pro per, it was glaringly obvious
that there was no pursuit of justice. I was denied due process. Requests
from my attorney during arbitration to demand compliance from Tesla fell
on deaf ears.
To aid my former counsel in the discovery process, I provided EJLG
with the following documents:
i.
Tesla Documents and Data to Request
ii.
Missing Documents from Tesla’s Document Production
Fact 4: Tesla’s counsel filed the ‘JOINT Exhibit List’ referenced, but
it was never viewed in Superior Court, which would make it impossible to
determine that the arbitration outcome was arrived at in a non-prejudicial
manner.
ROA#92, ATTACHMENT 8(C) COPY OF AWARD. On page 3 of
34 of that attachment, it states:
“The following Exhibits were introduced during the Hearing: 1, 7, 15, 19,
21, 28, 31, 33, 32, 40, 48-49, 52-58, 64, 73, 75, 76, 78, 108, 111, 118, 121,
124, 125, 126, 128, 130, 135, 137, 139, 140, 142, 147, 148, 149, 151, 152,
154, 156, 156, 159, 163, 166, 169, 201, 201, 202, 203, 204, 206-226, 228,
230, 231, 232-236, 238, 239, 240, 242, 244, 246-255, 259, 260, 262, 263,
264, and 265. All objections to the admissibility of these Exhibits have
been noted by the Arbitrator but were overruled. [See Joint Exhibit List].
Again, none of the 112 (not 265) exhibits explicitly cited in the list
above were ever submitted to the Superior Court, and neither was the ‘Joint
Exhibit List’, so the court didn’t have the opportunity to consider their
content when it rendered its decision to Confirm the JAMS Arbitration
Ruling rendered and submitted by Arbitrator Aragaki. These documents
were referred to and submitted by Respondent’s attorney Hartwell. The
Page 44 Court was forced into making a prejudicial decision because they made a
decision based on evidence Judge Lee were never able to see.
To rectify that issue, I’ve created three exhibits for the Appellate
Court to reference.
• Joint Exhibit List [1-265] (Wyer)
o Note: The contents of Exhibits 164 – 167 aren’t specified.
o Exhibits 168 – 200 are missing altogether
• Joint Exhibits Introduced into the JAMS
• Joint Exhibits Excluded from the JAMS Record
It’s unclear why Respondent’s attorney compared the list of exhibits
that were “introduced” as stated above to the list of exhibits that were “not
introduced.”
For example, the defense’s IME, Dr. Rosenberg (who received $25K
for his services), had his report included in the record. The plaintiff’s IME,
Dr. Nolan (who received $10K for her services), had her report excluded
from the record. Why? Highly prejudicial. Furthermore, Dr. Nolan’s
compelling rebuttal to Dr. Rosenberg’s report is nowhere to be found
either. Why? Highly prejudicial. Score: Tesla 3, Wyer Takeaways:
• EJLG
o Inadequate response to Wyer’s RFPs, efforts to remedy issues
stymied
o Pro-Wyer exhibits excluded from the JAMS record by
Arbitrator Aragaki
• Tesla
o Evade, obfuscate, redact, produce unreadable docs, produce
redundant content
o Pro-Tesla exhibits included in the JAMS record by Arbitrator
Aragaki
Page 45 Fact 5: The adjudication process was riddled with deposition
disputes between EJLG and BWS. Arbitrator Aragaki always sided with
Tesla.
The process of who would be deposed (and when) was equally
contentious. Tesla’s attorneys fought furiously to limit the number of
individuals I could depose. In the end, it went from 15-20 down to 5 based
on Arduengo’s demand. My attorney lost all the arguments made to
Aragaki to depose all the individuals we deemed had relevant knowledge
about my multifaceted case.
What follows is a list of emails and documents that illustrate how
this process went entirely in Tesla’s favor:
• 2020-02-03-
.
“We still need 10 days” (for hearings)
• 2020-02-03-
.
“It’s Respondents’ position that only 4 to 5 days will be needed in
order to conduct the arbitration hearing.”
• 2020-02-03-
.
“Please identify Defendant’s PMK and propose dates…for the
following individuals”
o Palaneeswar Chittor
o Marc Artigas‐Sanchez
o Alex Poniz
o Maira Malik
o Dayana Hijaz
o Irene Kucherova
• 2020-02-03-
.
“Arbitrator Aragaki limited the parties to 5 depositions each.”
• 2020-02-04-
.
“I understand the Arbitrator Aragaki limited the depositions to 5 at
Page 46 the outset of the case. However, he also provided space for the
parties to take more depositions where warranted…”
• 2020-02-06-
.
Joint Witness List filed by EJLG
• 2020-02-16-
.
“Claimant requests that Arbitrator Aragaki permit claimant to take
additional depositions in this case.” (This is a lengthy exhibit)
• 2020-02-17-
.
“As previously stated, Respondents do not consent to Claimant
deposing any more than five witnesses.”
• 2022-03-29-
.
“Respondent will not produce the PMK for deposition until 11 days
before the arbitration is set to begin.”
• 2022-03-29-
.
“In case it’s helpful to Arbitrator Aragaki, below is a more
comprehensive outline of the current discovery dispute…”
Takeaways:
• EJLG Numerous people need to be deposed
• Tesla No need for so many deponents, scheduling issues
• JAMS Aragaki had not been paid and didn’t want to do work if
payment was in doubt
Outcome:
Arbitrator Aragaki prejudicially decided my attorneys would only be
allowed to depose 5 individuals because that’s what Tesla wanted.
Fact 6: During the actual adjudication process there were multiple
adjudication disputes and Aragaki always sided with Tesla.
As the date of the arbitration hearings approached, Tesla’s counsel
moved to reduce the number of previously agreed upon days of testimony
Page 47 from 10 to 5. In the end, my attorneys only had about 15 hours to state my
case. I was denied my Right of Due Process as guaranteed in the 14th
Amendment of our country’s Constitution.
• 2022-02-03-
.
“The arbitration hearing in this matter is set for April 25 to May 6,
2022.”
“It’s Respondents’ position that only 4 to 5 days will be needed in
order to conduct the arbitration hearing.”
• 2022-02-24-
.
“Basically ruled in favor of Defendants.”
“This is ridiculous.”
Takeaways:
• EJLG Complex case, 10 days of hearings as originally scheduled,
numerous witnesses
• Tesla Only 5 days needed for hearings, just 5 witnesses
• JAMS Aragaki argued different cultures do it differently than we do.
I live in the USA
Outcome:
Arbitrator Aragaki decides my hearing should be 5 days
rather than 10 because that’s what Tesla wanted. I guess he thinks
natural-born US citizens in multiple protected classes (aka me) don’t
deserve the Right to Due Process guaranteed by the 14th Amendment
of the Constitution of my country. The only logical rationale for
these decisions was that the proceedings were clearly prejudicial in
favor of Tesla.
Fact 7: Respondent’s brief was defamatory, mean-spirited, and
continues to present inaccuracies that I was never allowed to have the
opportunity to correct. Respondent’s brief made it into the record that
Aragaki used for his decision making, which was blatantly prejudiced.
Page 48 • EJLG 2022-08-03-
.
• Tesla Defamatory, mean-spirited, inaccurate.
Fact 8: The outcome was egregious, unfair, and totally ignored my
claims in violation of public policy.
a. Aragaki arbitrarily chose to believe every word that witnesses who
spoke on Tesla’s behalf over every word that witnesses spoke on my
behalf, regardless of supporting documentation to the contrary. This
is prejudicial.
b. Aragaki chose to believe the psychiatric conclusions of Dr.
Rosenberg (who is essentially retired and was paid $25K for his
opinion) over those of both my long-term treating psychiatrist Dr.
Sacks and that of Dr. Nolan (who was paid roughly $10K for her
time). who largely corroborated the diagnostic conclusions put forth
by Dr. Sacks. Furthermore, Dr. Nolan’s strong rebuttal of Dr.
Rosenberg’s conclusions never saw the light of day.
c. To my knowledge, no exhibits or transcripts from the JAMS
arbitration process associated with my case were ever sent to the
Superior Court. The court was unaware of how entirely prejudicial
the JAMS proceedings were.
Outcome:
Despite all the facts that clearly prove I was a victim of a highly
prejudicial “arbitration racket” (my words) that discriminated against me in
a myriad of ways and denied me of my Right to Due Process, Aragaki
blithely decided I would lose in violation of public policy. With his
decision, he shortchanged 6 million other adults in the U.S. with ASD, and
all the adult workers over the age of 40. My due process was ignored. Laws
were broken. But Tesla got what it wanted, courtesy of Arbitrator Aragaki.
Fact 9: Aftermath
Page 49 Just days after the Superior Court confirmed Arbitrator Aragaki’s
ruling, EJLG ended the employment of both Chris DeClue (the lead
attorney in my case), and Gladis Gomez (his paralegal assistant).
• 2023-05-05-1522 Final Notice of Termination of Legal
Representation (002).pdf
• EJLG appears to be out of business altogether, based on that fact that
their website no longer exists (http://www.ejlglaw.com).
LEGAL ARGUMENT
THE SUPERIOR COURT FINALIZED A PREJUDICIAL
ARBITRATION AWARD BASED ON SUPPRESSED EVIDENCE,
LIMITED WITNESS TESTIMONY, DENIED DISCOVERY, AND
REDUCED HEARING TIME, WHICH VIOLATED PUBLIC POLICY.
A. De novo standard of review is procedurally acceptable.
Respectfully to this Court, I humbly request the de novo standard of
review to be used. Wyer v. Tesla, Inc. et al. was litigated in Orange County
Superior Court; Judge Richard Lee presided. In parallel, my case was
adjudicated through JAMS arbitration. The Arbitrator rendered a
prejudicial judgment favoring Respondent Tesla. I was denied due process
by the Arbitrator. The Superior Court finalized the prejudicial award.
Justice denied. The trial court based its decision finalizing a prejudiced
arbitration award that denied my right to due process through limited
discovery, limited testimony, allowing factual inaccuracies to persist, and
relying on hearsay statements that were accepted as fact. I’m appealing in
accordance with Ca. Civ. Proc. Code § 1294. I believe that I absolutely can
prove my case.
B. I was denied the opportunity to present the case without prejudice.
Appellant would have been able to establish a violation of FEHA
proving all necessary facts by a preponderance of the evidence.
Page 50 (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th
189, 198.) “Preponderance of the evidence” means evidence that what the
party is required to prove is more likely to be true than not true. (See CACI
No. 200.) In other words, the preponderance- of-the-evidence standard
“simply requires the Trier of fact ‘to believe that the existence of a fact is
more probable than its nonexistence.'" (In re Angelia P. (1981) 28 Cal.3d
908, 918.) I was unable to present the preponderance of evidence to prove
my case. My case was handled egregiously, and the outcome was
prejudicial in favor of Tesla. Thousands of pages of evidence were omitted.
Hartwell, excluded any and all evidence that supported my case. Her record
was submitted to the Arbitrator. My record wasn’t submitted to the
Arbitrator or court. This was egregiously prejudicial towards Tesla.
C. The Superior Court was denied access to review necessary evidence
by both the Arbitrator and Respondent’ attorneys.
When the Arbitrator could see that Respondent was unable to meet
the burden to articulate a legitimate non-discriminatory reason for my
termination in violation of public policy, evidence was intentionally
suppressed and excluded from the record by Respondent’s attorneys in
apparent collusion. (Cal. Government Code § 12940; Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 354-365, citing McDonnell Douglas
Corp. v. Green (1973) 411 U.S. 792; Tamaney v. Atlantic Richfield (1980)
27 Cal.3d 167, 170.)
D. The Court finalized the Arbitrator’s award predicated on a
prejudicial opinion, containing factual errors, which was heavily
biased in favor of Respondent in violation of public policy based on
excluded evidence.
I assert that the Court was subjected to betrayal by all legal officers.
The Arbitrator’s award didn’t take these basic facts into consideration.
Page 51 i.
The Arbitrator reduced the evidentiary hearing from 10 to days.
ii.
The Arbitrator limited me to 15 hours of examination.
iii.
Evidence referenced by Respondent’s Attorney wasn’t
presented for the Court’s review.
iv.
Misstatements persist in the Record and were not allowed to
be rectified or clarified.
v.
Key witnesses to support my case were missing, maligned, or
ignored.
Had the Arbitrator allowed proper evidentiary support, the Court
might have made a different award. Malek Media Group LLC v. AXQG
Corp (2020) 58 Cal.App.5th 817, review denied, (March 30, 2021) .)
E. The Superior Court without doubt rendered a prejudicial judgment
that favored Respondent. Please assess my case using a de novo
standard of review to determine whether I was discriminated against,
retaliated against, and harassed in violation of public policy.
EJLG represented me on contingency. Respondent’s Attorney was
paid an unknown amount by Tesla. Tesla initiated forced arbitration with
their $165,180 check. I didn’t have the money to pay for a winning
outcome.
Respondent’s attorney Kojima stated that I was improperly
represented, and attorneys allegedly committed “malpractice,” which is a
violation of Cal. Code Civ. Proc. § 340.6. EJLG appears to be out of
business. After examining all evidence, it’s possible that all attorneys were
sloppy, including to the point that other cases were comingled with mine.
Rosenberg represents close to between 85-90+% Defendants,
depending on the year. He testified that I demonstrated paranoid
schizophrenic/psychotic-like symptoms, not ASD. He didn’t administer
ASD assessments. Paranoid schizophrenia is covered by disability laws.
Page 52 (Gov. Code, ' 12926, subd. (i).) Rosenberg administered obsolete
assessments. Rosenberg’s entire opinion should be struck from the record,
pursuant to the California Supreme Court’s decision in People v. Sanchez
(2016) 63 Cal.4th 665. Rosenberg provided pages of unsolicited hearsay
that was inaccurate, false, and/or misleading and substantially prejudice. He
stated that I’m a malingerer. Allegedly, Tesla paid $25,000 for his services.
Hartwell prejudicially stated I’m a malingerer and paranoid schizophrenic.
She got her win for Tesla.
Garagulagian testified that my financial damages were numerous
and exhaustive. I lost my retirement and Tesla stock, except for a few
shares. My termination was inhumane and brutal. I was the primary
breadwinner, including for my autistic son.
The question before this Court is whether the Superior Court
rendered its final judgment on a prejudicial decision brought by the
Arbitrator in violation of public policy. In what ways did he prejudicially
abuse his discretion? Had proper evidentiary support been allowed; would
this have rendered a different outcome in the Superior Court? The Court
worked with the materials and documentation that were provided under the
assumption that evidence would be unbiased and fair. The Court assumed
that the Respondent’s narrative was accurate. I was prevented from fairly
presenting my case. (Royal Alliance Associates, Inc. v. Liebhaber (2016) Cal.App.5th 1092. The award that was rendered was inconsistent with my
statutory rights and conflicts with public policy. (Moncharsh v. Heily &
Blase, 3 Cal.4th 1 (1992).
Judge Lee had no chance in rendering a fair outcome. Exhibits were
mentioned in the record but the Court wasn’t allowed to assess evidence for
veracity. The outcome was extraordinarily detrimental and traumatic. I have
no chance of recovery from the substantial financial damage inflicted upon
me by Respondent’s and the Arbitrator’s discriminatory and prejudicial
Page 53 application of the laws designed to protect, not punish. Discrimination
didn’t end with my termination.
F. The Arbitrator denied me the ability to conduct reasonable
discovery. The Arbitrator reduced my evidentiary hearing time.
Arbitrator denied me the ability to conduct reasonable discovery.
Pursuant to Code of Civil Procedure § 1285, “[a]ny party to an
arbitration in which an award has been made may petition the court to
confirm, correct or vacate the award.” Furthermore, pursuant to Code of
Civil Procedure § 1286.2 the court shall vacate the award if the court
determines either of the following:
My rights were substantially prejudiced by both the Respondent’s
attorneys and Aragaki. After reviewing the thousands of pages of evidence
produced in this case; this fact is obvious. Rather than vacate or correct the
award, Judge Lee confirmed the final judgment without proper access to all
evidence unshaded by limitations and prejudice.
G. The Court had the authority to vacate the Arbitrator’s Award and
didn’t based on insufficient evidence and underwhelming
representation.
Pursuant to Code of Civil Procedure § 1285, “[a]ny party to an
arbitration in which an award has been made may petition the court to
confirm, correct or vacate the award.” The Court confirmed the award that
strongly favored the Respondent. The Arbitrator refused to hear evidence
that was material to my prima facie case. Pursuant to Code of Civil
Procedure §1286.2 The court has the ability to vacate the award if the court
determines either of the following:
The rights of the party were substantially prejudiced by the
refusal of the Arbitrators to postpone the hearing upon
sufficient cause being shown therefor or by the refusal of the
Arbitrators to hear evidence material to the controversy or by
Page 54 other conduct of the Arbitrator contrary to the provisions of
this title.
Through the Arbitrator’s arbitrary decision making and artificially
imposed limitations key evidence was suppressed. The Court relied on the
Arbitrator’s judgment. Royal Alliance Associates, Inc. v. Liebhaber (2016)
2 Cal.App.5th 1092. There is an abundance of evidence to augment the
record that was referred to and not presented to the Court.
i.
The Court was led to believe that I lack credibility and
integrity.
ii.
The Court wasn’t given the opportunity reasonable
Discovery.
iii.
The Court wasn’t given the opportunity to review adequate
witness testimony.
iv.
The Court wasn’t given the opportunity review evidence
presented during the JAMS arbitration proceedings.
Rather than vacate or correct the award, the trial court confirmed the
final judgment without being able to assess all of the facts and evidence
unshaded by limitations and prejudice. (Gonzales v. Interinsurance
Exchange (1978) 84 Cal. App. 3d 58, 63 [148 Cal. Rptr. 282.)
H. The Court didn’t have access to necessary testimony essential to
make a non-prejudicial decision.
The Court based its opinion on incomplete evidence, biased
misrepresentation of the facts, and didn’t have the opportunity to appraise
all of the record produced during arbitration. After reviewing all transcripts,
this is absolutely without question. After meager and insufficient document
production by Respondents during initial discovery, testimony from
additional witnesses became necessary to ensure my due process.
Testimony denied. Prejudicial outcome.
Page 55 Respondents refused to produce additional witnesses. The Arbitrator
prejudicially sided with the Respondents. More witnesses needed to be
called, including Jezabel Serrano, Ramya Makam, Ryan Flores, and Alex
Poniz. Most of these people no longer work for Tesla or are “missing.”
I. The Arbitrator abused his discretion when he refused request to
conduct necessary discovery.
The Court rendered its decision based on the Arbitrator’s abuse of
discretion. The Arbitrator initially set the evidentiary hearing in this case
for a 10-days. Two months before the evidentiary hearing, the Arbitrator,
sua sponte, reduced the evidentiary hearing from 10 days to 5 days. The
Arbitrator later limited me to a mere 15 hours of examination. I needed the
originally scheduled 10-days because the Arbitrator wouldn’t permit my
attorneys to take necessary depositions and would have to examine
witnesses for the very first-time during arbitration. The Court relied on
Aragaki to make non-prejudicial judgements. The Arbitrator was
prejudiced. The Court wasn’t able to fully assess my case based on
prejudice in violation of public policy.
J. The Court’s finalized judgment was based on prejudice, suppressed
evidence, and limited discovery in violation of public policy.
The Court was unable to assess non-prejudicial evidence, testimony,
and artificial time constraints imposed by the Arbitrator. The Arbitrator
based his decision primarily on hearsay evidence regarding Respondent’s
assertions, resulting in evidentiary and procedural limitations that were
highly prejudicial. My rebuttals, evidence, witness testimonies, and
additional discovery wouldn’t only have affected the rendered judgment but
also may serve to eliminate public safety issues which were
mischaracterized and underplayed by the Respondent’s attorney and
accepted as fact by both the Arbitrator and the Superior Court. These issues
likely still persist, and should be examined.
Page 56 Had the Arbitrator allowed proper evidentiary support, the Appellant
might have had an opportunity to have a less prejudicial outcome. Malek
Media Group LLC v. AXQG Corp (2020) 58 Cal.App.5th 817, review
denied, (March 30, 2021). In the same regard, had proper evidentiary
support been allowed to be considered in the Superior Court’s finalized
judgment, a different outcome could’ve been rendered. By refusing to hear
evidence and material facts, I was denied access to a non-prejudicial
outcome in Superior Court.
K. The Superior Court based its finalized outcome on substantial
prejudice through an organized and prejudicial adjudication system
that favors Tesla.
Page 57 CONCLUSION
Thank you for taking the time to read this document and consider
my Appeal. I have suffered egregiously through this process. So has my
family. I have proven that Superior Court Judge Lee based his opinion on
insufficient and exclusionary evidence that Respondent produced and
presented. Respondents demonstrated unfair gamesmanship and did
tremendous harm through their prejudicial conduct.
This insufficiency rendered a prejudicial opinion by the Arbitrator,
which carried over to the Court. For the reasons argued above, the
Arbitrator’s award should be reversed.
Appellant is asking for a full de novo review of all evidence,
including augmentation of the record. Please find Respondents liable and
hold Respondents accountable for this egregious conduct.
I have suffered tremendous financial loss. I’m requesting that this
Court award economic, non-economic, and punitive damages, at the very
least, as requested in Claimant David Wyer’s Amended Post Arbitration
Brief dated August 1, 2022.
Thank you. Happy New Year!
Dated: December 29, By___________________________
David J. Wyer
Pro Per and Appellant
Page 58 CERTIFICATE OF COMPLIANCE
Pursuant to California Rules of Court, rule 8.204, I certify that the
total word count of this APPELLANT’S RESPONSE BRIEF, including
covers, table of contents, table of authorities, and certificate of compliance,
is 13,990.
Dated: December 29, By___________________________
David J. Wyer
Pro Per and Appellant
Page 59 ATTACHMENT A – DECLARATION OF SHARON I. LINK
STATE OF California COUNTY OF Orange
David J. Wyer v. Tesla, Inc., Christopher Rollins, and Carson Schafer | Case number GMy legal name is Sharon Irene Link (Wyer). My birthdate is February 11, 1971. I am married to
David J. Wyer.
I am over the age of 18 and am a resident of the State of California. I have personal knowledge of the
facts herein and was a firsthand eye witness.
Educational Background
I earned a doctorate in Organizational Leadership Studies in 2007 from Gonzaga University, an
M.Ed. in General Administration, emphasizing Human Resources from Whitworth University. I am
two-thirds of the way through a Psy.D. in Clinical Psychology (in process). I am not an attorney. I
am not a software engineer.
Professional Experience
My first job was working for a U.S. Senator James McClure (R) (deceased). He was chairman of the
Committee on Energy and Natural Resources from 1981 to 1987 and an early proponent of electric
cars and energy independence.
I previously worked as a paralegal for former FBI agent turned practicing attorney, David Manko,
Esq. (deceased). David worked for the FBI for 30 years and retired.
For three years, I served as Director of Human Resources for a public school district in Washington
State and managed all aspects of the Human Resources’ functions and roles including: compliance,
EEO, safety, wage setting, employee selection, hiring, and reporting.
Dave and I work remotely in the same space. I have personal knowledge of the facts set forth below.
This is a true and direct account of what I witnessed and observed in terms of non-compliance and
workplace conduct. I have never worked for Tesla.
I was acquaintances with most of the people on the Rosetta Pod through social media.
I have no agreements with Tesla regarding confidentiality or non-disclosure. My eye witness
testimony was suppressed during the Arbitration proceeding over which non-practicing attorney,
Hiro Aragaki officiated. I was on the “witness” list but was never allowed to be deposed or testify.
My testimony was suppressed.
Not only did I maintain a very detailed time-line, I have reviewed all exhibits entered by
Respondent’s attorney into JAMS arbitration, which were not provided to Superior Court. Before this
declaration, I have not previously made public statements about the following events.
Timeline of Events
September 8, 2015 – Dave was hired to work as a remote AutoCAD Software Engineer at SolarCity.
I was thrilled for Dave with this employment opportunity. There was no opt-out clause in the
SolarCity Arbitration agreement. The contract was take-it or leave-it employment.
June 2, 2017 – Dave went through an online automated transfer process to advance from SolarCity
to Tesla. I witnessed this process. The electronic document was not viewable in its entirety. The
arbitration language was buried in the direct deposit section of the document. There was no way to
initial acceptance for each section. There was no opt-out clause. The agreement was take-it or leave-
Page 60 ATTACHMENT A – DECLARATION OF SHARON I. LINK
it. David’s actual signature is not on the agreement. The signature shown was not e-verified. There
was no evident provision for requesting accommodations or asking questions. This was the
agreement that was used.
December 2017 – Christopher Daniel Rollins was appointed to manager of Rosetta Pod. Rollins and
Dave previously worked together at SolarCity. I met Rollins at the Christmas party the previous year,
which took place at Travis Brier’s San Franciso home.
January 29, 2018 – Dave received an email from Rollins with the subject of “lift off.” Rollins took
full managerial responsibilities for the Rosetta Pod.
February 1, 2018 – Subject line: “Topher in San Mateo” – This was the date of Dave’s first one-onone with Rollins. Rollins refers to himself as “Topher.” During this one-on-one with Dave, Dave
verbally told Rollins that he had Asperger’s. Dave told Rollins because he wanted Rollins to
understand that he has a direct style of communication. I heard Dave say this to Rollins via Zoom.
May 2018 – During this time, Maha Varudgihari was hired to replace Travis Brier.
June 2018 – Hijaz left for 6 weeks to attend a vacation/family reunion which was approved by
Rollins. As an observer, the tone of the Rosetta Pod started to become overtly sexual. Anecdotally,
many males in the Pod seemed to express overt sexual interest in Dayana Hijaz, who is a Lebanese
citizen and is very attractive. I was friends with her on social media and she actively posted pictures
on Instagram showing her in the Tesla work environment, which were publicly available, including
of her triangle dancing at work with Irene Kucherova and Palaneeswar Chittoor.
June 12, 2018 – Tesla had a “lay-off.” Rollins selected Tony Johnson to be fired. According to
LinkedIn, Tony Johnson was a Military Veteran and a nuclear engineer. Tony was also the second
oldest person in the Rosetta Pod having served as a U.S. Navy Nuclear Engineer between 1997 to
2000.
July 1, 2018 – Musk sent out a broadcast email at Tesla stating: “We just became a real car
company.”
July 10, 2018 – Alex Poniz created and disseminated the “Rosetta Squashes it Beef” spreadsheet in
response to Rollins’ managerial style and general complaints from other Pod members. There was
also a complaint on Line 30 that there was a “Lack of adult in the room.’ Poniz made the document
and spearheaded data gathering. This document persists and does not belong to Tesla. Here is the
URL. This spreadsheet did not live on Tesla’s servers. Alex Poniz was able to retain his employment
after Dave was fired.
At Line 16 in the spreadsheet, Poniz wrote: “GET HYPED! GET PSYCHED! YOU CAN DO
WHATEVER YOU WANT! THERE ARE NO RULES! YOU CAN FLY! BE THE CHANGE YOU
WANT TO SEE IN THE WORLD! YOU GET A CAR! YOU GET A CAR! EVERYONE GETS
CAR!”
July 30, 2018 –Dave was assigned the OLEDB project that would provide cost savings to Tesla.
Maira Malik, became the product manager who replaced Wilson on the Rosetta Pod. For this
application, she valued the cost savings of $1.7 million per year over year. Dave and I were excited
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about this potential value to Tesla.
July 30, 2018 – I observed that Dave was increasingly being forced to work alone on most projects,
and he asked to have his code reviewed equally for the good of the team and Tesla. This day, Carson
Schafer promised to review Dave’s OLEDB code and approve a pull request. Schafer promised to
review Dave’s code. Dave sent Carson a reminder text. At 10:27pm, Carson texted and said that his
phone was in his girlfriend’s purse, and he “forgot that he agreed to help.” Dave relentlessly worked
on OLEDB, including overnight to the point that his health was at risk.
August 7, 2018 – Musk communicated via Tweet and email to Tesla and its investors with the
“funding secured” tweet — at $420 a share, that would put the company’s valuation at about $billion.
August 24, 2018 at 3:23pm - Dave received an email from Maira Malik. She stated there was a
problem with a COMMBlocks table. The issue was blocking proposal generation for all commercial
jobs. Production was hindered. Designers were forced to manually input data rather than rely on
previously programmed automated process. This problem had persisted for at least one month. Dave
fixed the problem. Dave also received confirmation from one of the designers that the situation had
been resolved, and that the proposal generator tool was also working.
August 24, 2018 – roughly 40 minutes later – Schafer posted the “Kill the Dave” comment right
after the COMMBlocks issue was raised. He also posted a GIF of a woman dying with the words
“DEAD” flashing over her lifeless body. I, 100% attest, that Carson typed “Kill the Dave.” I saw this
statement. He followed his statement up with “I meant it.” Dave reported this incident to Rollins.
Rollins emailed Jezabel Serrano and stated that the GIF was of a person fainting and Schafer’s
statement was in response to “killing” a UI element. Rollins lied about this issue. He also indicated
he had screenshots of Carson’s post he could send to Ms. Serrano “if she wanted to see them.”
Rollins excluded the screenshot from this email.
Friday, August 31, 2018 –As an older person with ASD, Dave told me that he felt vulnerable.
Dave wrote in MatterMost that he had Asperger’s. He later sent a diagnosis letter from his physician.
In MatterMost, Dave wrote:
David Wyer 2:13 PM – Do you know much about Asperger’s?
Chris Rollins 2:14 PM – a little bit, definitely not an expert
September 7, 2018 –Dave asked Rollins for help over the weekend to review his OLEDB code.
Rollins replied: “What do you need me for?”
September 7, 2018 - Tesla CEO Elon Musk smoked weed during Joe Rogan podcast interview.
September 8, 2018 – The next morning, Hijaz said during the morning stand-up that “Musk doesn’t
have much Emotional Intelligence.”
September 11, 2018 - Rollins submitted a Pull Request that would not compile and instructed Dave
to merge this code into his code branch. There were 63 compile errors in Rollins’ code. Dave was
alarmed.
September 12, 2018 –Rollins told Dave that he went ahead and merged changes into his branch. He
had not debugged the code he merged. More run-time errors were merged. The untested code
resulted in new errors. I observed that Rollins did not force other Pod Members to merge his broken
code.
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September 13, 2018 – Dave had an endoscopy. He was becoming so stressed at work that he was
having difficulty swallowing. Dave’s anxiety and other health issues were mounting. My anxiety was
mounting, as well, because at this time, Dave was the primary breadwinner. It felt like Rollins was
starting to “cancel” Dave.
September 19, 2018 – Stormy Daniels appeared on Jimmy Kimmel and talked about her relationship
with Donald Trump and discussed personal aspects of his anatomy.
September 20, 2018 – In response, the next day, Rollins and Schafer had what I considered to be a
very inappropriate conversation about “head sizes” in the MatterMost channel. Dave privately asked
Rollins and Schafer to stop the locker room talk. This unprofessional communication was laced with
sexual inuendo. I read this content.
Right after Dave commented, Ms. Hijaz posted a very sexually provocative music video in the chat.
The video was in Spanish. Marc Artigas-Sanchez is from Spain. Hijaz was able to keep her job after
long absences away from work and has now allegedly been promoted.
This MatterMost post occurred after the morning’s stand-up (morning group check-in). The chain of
events was as follows:
1. Rollins and Schafer discussed their “head sizes” in writing, the day after Stormy Daniels
appeared on Kimmel.
2. David asked them to stop because of the sexual connotations of this issue, and the fact that he
perceived this to be sexually harassing behavior per Tesla’s written policies.
3. Hijaz doubled down by posting the first of two sexually laced videos with offensive content
on back-to-back days.
a. The first leud video (in Spanish) displayed women’s breasts and women twerking.
b. The second video (also in Spanish) contained highly sexual and offensive lyrics.
4. Marc Artigas-Sanchez resigned after the second video was posted. His last day at Tesla was
two weeks to the day after the videos were posted.
September 21, 2018 – Ms. Hijaz posted another sexually suggestive video “to get everyone in the
mood.” Dave reported this behavior to Jezebel Serrano.
After this incident, Schafer took a screen capture of Hijaz during a Zoom session (without her
permission) and posted same in MatterMost with the caption, “Hey, Gurl.” I saw this screen capture,
and I thought it was inappropriate and could be construed as sexual harassment and/or stalking.
David had previously been threatened by Schafer.
September 25, 2018 –Alex Poniz, was the Quality Assurance Tester for the Pod. Alex Poniz said
that he hadn’t tested Dave’s OLEDB code for “Phantom Modules.” Poniz told Dave that he used
atypical jobs and atypical workflows for testing, including the introduction of “Phantom Modules.”
During that morning’s stand-up everyone in the Pod looked incredulous regarding “Phantom
Modules.” Dave asked if Poniz would provide a testing plan to properly test OLEDB. Poniz stated
that no testing plans were going to be used.
Rollins told Dave to devise his own testing plan to do his own QA. Dave wrote a testing plan. Dave
sent the testing plan via email to Rollins on September 7. Rollins ignored this email for three weeks
(20 days), thereby delaying Dave’s work that he was doing to help the business.
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Rollins later informed the Pod that everyone on the Pod would be responsible for testing each other’s
code. Dave was being excluded from learning about other Pod Member’s projects. If no testing plans
existed, Dave was concerned that he would make mistakes in testing without proper documentation
or knowing what the software was intended to do. Dave told me that he was concerned about the
risks to him and Tesla associated with not having proper testing plans. I cannot generalize this
practice to other parts of Tesla’s business.
According to Tesla’s job description, the Quality Engineer’s job is to work very closely with
Software Engineers to understand the technical design of applications and ensure testability of the
developed components, build test automation with the goal of providing maximum coverage in the
most efficient manner, be responsible for ensuring that the test infrastructure is easily maintainable,
and can scale to the demands of a rapid continuous integration continuous deployment environment,
design and develop advanced test suites using object-oriented methodologies, implement and execute
test strategies on all supported platforms and languages to help improve overall quality and test code
coverage.
September 25, 2018 - Rollins told the entire Pod via morning stand-up that he had finally
downloaded AutoCAD on his system. So, this meant he worked for 9 months without the proper
software on his system to do his work or adequately test software in my professional opinion.
September 28, 2018 – Friday. On this day, Dave also told Rollins that he was planning to work on
OLEDB over the weekend.
Rollins requested a list of completed projects from Pod members. Rollins told Dave that he was
establishing a Pod policy that performance reviews would be tied to profitability. Dave sent Rollins a
list of accomplishments that he achieved during 3Q. Dave had saved Tesla close to
$900,000 through automation based on time saved. OLEDB’s worth was $1.7 million, year after
year. Dave would have been able to save Tesla’s energy side $2.6 million during the fourth quarter,
which Tesla needed. Dave sent his list. Rollins said that he was going to edit Dave’s profitability list
instead of sending it directly to upper management. Dave did not get to see what Rollins wrote. Dave
and I were both concerned that Rollins could assign low dollar projects to Dave, which would
negatively impact Dave’s profitability. This practice is inherently discriminatory.
September 29, 2018 – Saturday. Dave started to work on OLEDB bright and early. Major systems
failed or were inaccessible because of an ad hoc database refresh that Rollins scheduled and did not
communicate to Dave. Rollins was online briefly. When Dave postulated about the problem, Rollins
wrote unresponsively, “No, that’s not the problem.” Instead of telling Dave about the database
refresh, Dave spent hours trying to fix a problem caused by the database refresh. Dave was left
frustrated, and contacted Ramya Makam. She confirmed that the database refresh was ordered by
Rollins. She also stated that Rollins had communicated about the refresh to the entire Pod, except
Dave. I do not have personal knowledge about the communication, other than that Dave didn’t know.
The database refresh would take a week for recovery. This impacted the entire Pod’s productivity.
Dave was left out of this communication.
September 30, 2018 – After the refresh was complete, all test jobs were obliterated. This was a
traumatic experience for Dave. His blood pressure started to increase. As Dave’s wife, this was very
difficult to watch. Dave and I both have ASD are subject to anxiety. Work is central to Dave’s being
and mental health. I observed that Rollins was exerting artificial pressure, and these escalated
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behaviors started after Rollins knew about Dave’s (ASD) Asperger’s diagnosis.
October 1, 2018 at 11:10 AM– Travis Wilson was a product manager who had been part of the
Rosetta Pod. He and Dave had a positive rapport. Dave sent Travis Wilson a direct message in
MatterMost asking if Wilson would be an advocate for him on-site so that he could be more
connected to the team.
“k. I have been clinically diagnosed as having Asperger’s, and I am in the process of formally
requesting accommodations due to ongoing issues I am experiencing at Tesla that are directly related
to my disability. One of the accommodations I am seeking is to have a designated advocate to work
with, and I would like that person to be you. I think you are absolutely trustworthy, fair, and always
have the best interests of the company in your mind, if I request that you be my advocate, would you
be willing to do this?” Wilson said no. I read this exchange.
Dave would later have a Zoom conversation with Wilson about this topic. I saw this. Wilson was
wearing a red ballcap during the Zoom session. He spun the ballcap during the conversation. This
conversation occurred while Rollins was in San Luis Obispo. According to LinkedIn, Mr. Wilson no
longer works for Tesla. Mr. Wilson and Ms. Hijaz previously lived together, which she broadcast on
Instagram. Wilson is no longer employed by Tesla.
October 5, 2018 – Marc Artigas left the Rosetta Pod – two weeks to the day after the provocative
videos that Ms. Hijaz posted.
October 11, 2018 – Once again, Dave had to review and approve his own OLEDB pull request,
because no one in the Pod even read it – including Rollins. Many of the pull requests were focused
on profitability. My husband was fearful and traumatized that if he made a mistake that he was going
to be terminated. I was troubled by the immaturity and disregard for potential consumer safety.
October 12, 2018 – Finally, OLEDB made it to QA once again. Alex Poniz was absent from work.
This was recurrent. Dave would almost finish with the project, and then either Rollins would break it,
Poniz wouldn’t test it, and no one in the Pod would review the code.
October 13, 2018 – On this day, Rollins singlehandedly canceled OLEDB. He told the Pod that he
and Dave agreed to cancel the project. Not true. Later, in a conversation with Ms. Serrano, I heard
Rollins say that he never singlehandedly canceled a previous project before OLEDB. Not being able
to finish the project caused Dave emotional damage because his anxiety increased, and his
sleeplessness increased. Dave began to have recurrent dreams about the project. David and I still
don’t understand why Rollins didn’t direct the entire Rosetta Pod to support this project and help
Elon Musk achieve financial efficacy for Tesla’s fourth quarter.
On or around October 15, 2018 – Musk visited Dumbarton. Rollins apparently stood next to him to
urinate. During the next morning’s stand-up Rollins told everyone, “Elon is a lot bigger in person.”
October 15, 2018 - Dave met with Serrano. Dave told Ms. Serrano that he had a disability (ASD)
and asked if he could make a request for the accommodation of stopping the harassment and
discrimination that he was experiencing from his fellow Pod members.
October 16, 2018 – Dave wrote an email and indicated that he understood why the COMMblocks
was so broken in EdStar. The contents of the table were continually being overwritten with bad data.
Page 65 ATTACHMENT A – DECLARATION OF SHARON I. LINK
Dave not only reported this problem to the designer, Rollins, Malik, and Ostermann, he also reported
the issue to Ramya Makam and Ryan Flores. I stayed up with Dave to watch the problem. At around
1:15am every morning, someone named Agnes, who no longer worked for the company, was running
code that would cause the COMMblocks table to break and populate with phony data. Dave
suspected sabotage. Dave was concerned that human error was being introduced into a system that
could potentially cause safety risks.
October 23, 2018 – Dave met with Jezabel Serrano and Shaan Murray-Smith regarding receiving
potential accommodations. Serrano was late. She rescheduled for October 24, 2018.
October 24, 2018 – Dave met with Serrano and Shaan Murray Smith, hereafter, Shaan S. Smith.
During the meeting with Smith and Serrano, Dave requested formal “good faith” accommodations to
stop the harassment, bullying, and hostile work environment. Serrano was late for this meeting. Dave
also technically “blew the whistle” on sabotage, abuse of power, retaliation, and workplace bullying.
He had interacted with Serrano previously when he reported issues related to sexual harassment. I
observed every meeting he had with both of these women.
David asked for the accommodation of being able to work on bug fixes and software security issues
if he was not assigned directly to a project to keep him employed. This request was
denied. The bugs and security holes persisted as of January 18, 2019. In fact, at that time there were
117+ known security holes in the energy software. These known defects were present in the software
prior to Dave even being employed at Tesla. These JIRA tickets were outstanding at the time Dave
was fired. I cannot speak to if or how these were resolved.
During that Zoom session, Dave told Serrano that Rollins had intentionally forced him to inject
untested, broken code into the code branch for the OLEDB code. I listened to this conversation. This
event occurred while Rollins was in San Luis Obispo at a recruiting session. It appeared that Hijaz
was also gone at exactly the same time that Rollins was.
OLEDB was valued at a cost savings of $1.7 million dollars (year after year) by Ms. Maira Malik.
She left the Rosetta Pod to go work with Tesla’s financial group. Malik is no longer employed Tesla.
Again, Rollins unilaterally canceled this project because Dave was working on it, and admitted as
much to Serrano, (which I overheard). During a conversation with Rollins and Dave, Serrano said,
“Chris, if you cancel a project and then hold David accountable for profitability, David has a point
that this is unfair.” OLEDB would have sped up ED functionality and improved the efficiency of the
entire residential design team. This would have dramatically helped the company show a profit for
the fourth quarter.
October 25, 2018 – COMMblocks broke again. The entire contents of the table had been overwritten
with junk data.
October 26, 2018 – Dave felt ill this morning. He threw up repeatedly. He checked his blood
pressure. His BP was 188/110. Dave emailed Rollins and stated that he needed to take the day off
because he was having a hypertensive crisis. This was the first time that Dave ever experienced a
hypertensive crisis.
Despite calling in sick, Rollins insisted that Dave work. Dave emailed Serrano and reported his
health condition and told her that Rollins instructed him to work despite his emergency health
condition. Serrano permitted Dave to take the time off and go to the doctor.
October 30, 2018 – Dave visited Dr. Alexander Berdy. I accompanied Dave into the treatment room.
Dave told Berdy everything about his work situation. Berdy asked if he had filed a report with the
police regarding the “Kill the Dave” threat. Dave’s heart rate was 111, and Dave was experiencing
Page 66 ATTACHMENT A – DECLARATION OF SHARON I. LINK
extreme stress. Berdy prescribed a medication to bring down his heart rate. Dr. Berdy ordered Dave
to take the rest of the week off. And at 5:51 pm, Dave received an incident report to complete for
Worker’s Compensation. Dave completed the report. I provided a witness statement.
October 31, 2018 – At 4pm, Dave went to see Dr. Lorraine Sunday, which he was directed to do by
Tesla within 24 hours of filing the Incident Report. Sunday was a physician at HealthWorks Medical
Group. I accompanied Dave to the appointment and spoke with Dr. Sunday. David told her about the
anxiety induced by his hostile work environment.
November 8, 2018 – Dave met with Rollins through Zoom to have his third quarter review. Rollins
had skipped the second quarter review. Dave asked Rollins to record the review, which Rollins
agreed to do. The performance review was negative because Dave was unable to finish the project
that Rollins canceled. Rollins also complained about Dave’s lack of collaboration, which is a direct
strike at Dave’s disability.
November 28, 2018 – Dave was the first one to finish his work and initiated a pull request. Alex
Poniz posted the GIF, “Look at me, Mr. Freeze. I’m an old man.”
November 30, 2018 – Mahadevan Virudhahiri (Maha) sent an email referring to Andrew Carl as
“one throat to choke.” During this email he also stated that Rollins (Topher) would report directly to
him. Virudhahiri used the word “execution” three times in the email. And he used the term “kill list.”
Soon after, Andrew Carl was separated from his employment at Tesla.
November 30, 2018 – Despite that Dave’s performance review was poor, Rollins met with Dave to
indicate that he would receive a $3000 raise and a $20,000 stock bonus. Dave was shocked.
December 3, 2018 – Dave received the actual email indicating that he received the merit raise and
stock bonus award.
December 9, 2018 – Dave wanted to review his annual reviews. When Dave visited that website, the
entire page had disappeared.
December 17, 2018 - Ramya Makam sent Dave a list of IP addresses that were connecting to the
server where the COMMblocks table lived. In turn, Dave sent this list to Ryan Flores, who was a
member of the commercial design team.
3:02 PM – Dave sent an email to Ryan Flores, Standards Engineer, Energy Projects and states that he
is aware that EdStar is not working, and that the database table that holds COMMblocks data is being
overwritten with bogus data. Dave requested confidentiality because he feared that this is being done
purposely.
3:26 PM – Flores agrees that a “table being overwritten with garbage data sounds extremely
consistent with the symptoms I’ve seen! Also consistent with you declaring it fixed two months ago,
only to have it break again the moment you turned your head. I have been pretty baffled at where the
data could even be coming from, since it’s pointing to very specific drawings that don’t seem to exist
anywhere.”
4:08 PM – Dave stated: “I got this list of IP addresses that have been connecting to the server where
that database lives from Ramya Makam this morning. I don’t think I have the wherewithal to get info
from IT about any of these machines and/or who they might belong to.” I saw this email. It is
included in the augmentation of the record as provided by Tesla.
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December 13, 2018 – 11:41 am Dave programmed code and demonstrated an application with very
positive results. The application automated a process that previously took 15 minutes and eliminated
the time down to 15 seconds.
December 18, 2018 – Dave had a one-on-one with Rollins. During the one-on-one, Dave expressed
his concerns about the COMMblocks table, mentioned the IP addresses, and stated, “I am concerned
about sabotage.” I heard Dave make this statement. Rollins was on Zoom. Rollins angrily stated,
“What do you mean sabotage?” Dave said, “I mean I am concerned about sabotage. The table is
breaking in the middle of the night via some sort of script that is being run by an account of an
employee who no longer works here.”
Dave was fired one month to the day that he made this allegation.
January 1, 2019 – Rollins did not set up any one-on-ones with Dave for the new calendar year.
January 10, 2019 – Dave was intentionally left out of team planning for the year.
January 10, 2019 – Rollins and Osterman referred to Structural Engineers as Vipers. (Verbatim)
Rollins - 4:12 PM – “Cory is wrangling stakeholders and requirements…Cory’s figuring out
a bunch of the details for a particularly picky group of stakeholders…”
Ostermann – 4:14 PM – “it’s a viper nest and im the guy with the flute Rollins – 4:15 PM –
and the vipers keep finding new vipers”
How do I know that Dave was discriminated against? Osterman appears to still be employed
at Tesla, even after he and Rollins had this defamatory exchange in MatterMost, and Dave
was fired. https://www.linkedin.com/in/coryostermann/
January 18, 2019 - David was illegally terminated from his position at Tesla Energy on January 18,
2019. Musk sent out an email at around 1:30 am regarding the tough financial state. At around 8:am, Rollins sent David a text stating that he wanted to “sync up.” At 9 am through Zoom,
Christopher Daniel Rollins, Manager, Applications Engineering– hereafter (Rollins), and Jezabel
Serrano, Senior HR Business Partner (now demoted to Senior HR Manager, G&A) at Tesla, hereafter
(Serrano) told Dave that he was being “laid off.” I heard the conversation. They both used the term,
“laid off.” Tesla illegally fired Dave, who was over 60 and has a disability and referred to the
termination as a lay-off. Right after, Dave received a document from Tesla’s HR department with the
title, “Telling Family Members You’ve Been Laid Off.”
I observed Rollins on the Zoom. He looked positively gleeful when he told my husband that “today is
your last day.” Serrano sat behind Rollins in the room. Dave pointed out during the call that since
they were hiring a replacement for him on the following Tuesday that this was “age discrimination.”
I watched this entire exchange. Dave and I were devastated. Palaneeswar Chittoor replaced Dave
three days later, and he made 1.5 times Dave’s salary, plus Tesla paid for his immigration and
moving fees. Tesla never offered to move Dave. How did Tesla benefit from firing Dave?
February 20, 2019 – An attorney representing Dave sent a letter to General Counsel, Dane
Butswinkas and asked for full document preservation in Dave’s case. Butswinkas resigned on that
same day.
June 4, 2019 – On June 4, 2019, Jaime Bodiford sent a falsified document to attorney Michael
Robinson. The document was created by her and last modified by her on June 4, 2019 at 7:26 am.
This document does not match any of the other copies entered into evidence. Her total editing time
was 6 minutes. The document shows a MatterMost chat that was changed to “Get Rid of the Dave.”
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Bodiford made a cut and paste error. Time stamps were out of order. She also replaced the gif of the
woman falling with the word “DEAD.” If the threat wasn’t serious, why did she change the
evidence? How many other cases has Bodiford been part of in which she has altered evidence? Prior
to joining Tesla, she worked for Burke, Williams, and Sorensen. It was apparent that Respondent’s
Attorneys Arduengo and Hartwell knew Bodiford. Bodiford and Hartwell are both from Texas.
Bodiford attended depositions. Her name is listed in deposition transcripts. Frankly, I feel like this
threat was real. The fact that BWS attorneys defended this behavior is traumatic and uncalled for.
I hereby swear that the foregoing declaration is true and correct on this 26th day of December 2023.
Sharon Irene Link (Wyer)
Sharon I. Link
Sharon I. Link
Page 69 Court of Appeal, Fourth Appellate District, Division Three
Brandon L. Henson, Clerk/Executive Officer
Electronically FILED on 1/3/2024 by Lilian De La Torre, Deputy Clerk
STATE OF CALIFORNIA
California Court of Appeal, Fourth
Appellate District Division
PROOF OF SERVICE
STATE OF CALIFORNIA
California Court of Appeal, Fourth
Appellate District Division Case Name: Wyer v. Tesla, Inc. et
al.
Case Number: GLower Court Case Number: 30-2019-
1.
At the time of service I was at least 18 years of age and not a party to this legal
action.
2. My email address used to e-serve: dave@dwgraphics.com
3. I served by email a copy of the following document(s) indicated below:
Title(s) of papers e-served:
Filing Type
Document Title
BRIEF - APPELLANTS REPLY BRIEF Appellant's Reply Brief Final 20240102.Service Recipients:
Date /
Person Served
Email Address
Type
Time
Keiko Kojima
kkojima@bwslaw.com
e1/3/Burke, WIlliams & Sorensen, LLP
Serve 8:22:AM
Cheryl Johnsonhartwell
cjohnsone1/3/Burke, Williams & Sorenson
hartwell@bwslaw.com
Serve 8:22:AM
David Wyer
dave@wyervstesla.com
e1/3/Serve 8:22:AM
David Wyer
dave@dwgraphics.com
e1/3/Serve 8:22:AM
Orange County Superior Court
eservicedcabriefs@occourts.org e1/3/Serve 8:22:AM
This proof of service was automatically created, submitted and signed on my behalf
through my agreements with TrueFiling and its contents are true to the best of my
information, knowledge, and belief.
Page 70 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
1/3/Date
/s/David Wyer
Signature
Wyer, David (Pro Per)
Last Name, First Name (PNum)
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