Case 3:03-cv-02878 Document 61 Filed 09/11/2004 Page 1 of 42

1 James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452)
2 Karin A. Kramer (SBN 87346) Lexi J. Hazam (SBN 224457)
3 Chimène I. Keitner (SBN 226948) Nirej S. Sekhon (SBN 213358)
4 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
5 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
6 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
7 Todd M. Schneider (SBN 158253)
8 Guy B. Wallace (SBN 176151) Joshua Konecky (SBN 182897)
9 SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000
10 San Francisco, CA 94104 Telephone: (415) 421-7100
11 Facsimile: (415) 421-7105
12 Waukeen Q. McCoy (SBN 168228) LAW OFFICES OF WAUKEEN Q. McCOY
13 703 Market Street, Suite 1407 San Francisco, CA 94103
14 Telephone: (415) 675-7705 Facsimile: (415) 675-2530
15
16 Attorneys for Plaintiffs and the Proposed Classes

John L. Burris (SBN 69888) Miles Washington (SBN 88288) LAW OFFICES OF JOHN L. BURRIS 7677 Oakport Bldg., Suite 1120 Oakland, CA 94612 Telephone: (510) 839-5210 Facsimile: (510) 839-3882
MICHAEL S. DAVIS (SBN 160045) 345 Hill Street San Francisco, CA 94109 Telephone: (415) 282-4315 Facsimile: (415) 358-5576
KAY MCKENZIE PARKER (SBN 143140) 1318 East Shaw Avenue, Suite 415 Fresno, CA 93710 Telephone: (559) 222-1509 Facsimile: (559) 222-9045

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19 DERRICK SATCHELL, KALINI
20 BOYKIN, VALERIE BROWN, RICK GONZALES, CYNTHIA GUERRERO,
21 RACHEL HUTCHINS, KELVIN SMITH, SR., and KEN STEVENSON, on behalf of
22 themselves and all others similarly situated,

23

Plaintiffs,

24 v.

25 FEDEX EXPRESS, a Delaware corporation,
26 Defendant.
27

Case No. C 03-2659 SI; C 03-2878 SI
CLASS ACTION
NOTICE OF MOTION, MOTION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Date: January 14, 2005 Time: 9:00 a.m. Courtroom of the Honorable Susan Illston

28

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1

NOTICE OF MOTION AND MOTION

2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that, on January 14, 2005, at 9:00 a.m., Plaintiffs will

4 move this Court for an order:

5

(1) Certifying two classes under Fed. R. Civ. P. 23(a) and 23(b)(2):

6

(a) a “Minority Employee Class” comprising all African-American and

7 Latino Handlers, Freight Handlers, Material Handlers, Checker/Sorters, Customer Service

8 Agents, Couriers, Swing Drivers, Ramp Transport Drivers, Ramp Area Drivers, Shuttle Drivers,

9 Dangerous Goods Agents, Information Agents, Operations Agents, Ramp Agents, Service

10 Assurance Agents, Truck Control Agents, Trace Representatives, Input Auditors, Team Leaders,

11 and Dispatchers working in FedEx’s Western Region, which includes the states of Alaska,

12 Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, part of

13 Texas, Utah, Washington, and Wyoming, during the period October 17, 1999 through the date of

14 judgment in this action, for claims of employment discrimination on the basis of race in

15 evaluation, promotion, compensation, and discipline in violation of Title VII of the Civil Rights

16 Act of 1964 (both disparate impact and disparate treatment), 42 U.S.C. § 1981 (1996), and, for

17 those class members working, or who worked, in California, the California Fair Employment and

18 Housing Act; and

19

(b) an “African American Lower-Level Manager Class” comprising all

20 African-American Operations Managers in FedEx’s Western Region, which includes the states of

21 Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon,

22 part of Texas, Utah, Washington, and Wyoming, during the period October 17, 1999 through the

23 date of judgment in this action, for claims of employment discrimination on the basis of race in

24 evaluation, compensation, and discipline in violation of Title VII of the Civil Rights Act of 1964

25 (both disparate impact and disparate treatment), 42 U.S.C. § 1981, and, for those class members

26 working, or who worked, in California, the California Fair Employment and Housing Act;

27

(2) appointing Valerie Brown, Rick Gonzales, Cynthia Guerrero, Rachel

28 Hutchins, Kelvin Smith, Sr., and Ken Stevenson as Class Representatives of the Minority

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1 Employee Class;

2

(3) appointing Derrick Satchell and Kalini Boykin as Class Representatives of

3 the African American Lower-Level Manager Class; and

4

(4) appointing the law firms of Lieff, Cabraser, Heimann & Bernstein, LLP;

5 Schneider & Wallace; the Law Offices of John L. Burris; the Law Offices of Michael S. Davis;

6 the Law Offices of Waukeen Q. McCoy; and the Law Offices of Kay McKenzie Parker as Class

7 Counsel, pursuant to Fed. R. Civ. P. Rule 23(g), of both the Minority Employee Class and the

8 African American Lower-Level Manager Class.

9

Plaintiffs’ motion is based upon (1) this Notice of Motion, Motion, and

10 Memorandum; (2) Statistical Analysis of Race and Ethnic Patterns in Federal Express Workforce

11 by Richard Drogin, Ph.D.; (3) the Expert Report of William T. Bielby, Ph.D.; (4) Report on the

12 Basic Skills Tests and Their Use by Federal Express by Nita R. French, Ph.D.; (5) the

13 Declarations of the Proposed Class Representatives; (6) the Declarations of Eighteen Class

14 Members; (7) the Declaration of Chimène I. Keitner (attaching deposition transcript excerpts,

15 alphabetically by deponent, and FedEx documents); (8) the Declaration of Nirej S. Sekhon;

16 (7) the Declarations of the Proposed Class Counsel; (9) any argument of counsel as may be

17 presented at the class certification hearing; and (10) the pleadings and files in this action.

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF CONTENTS

2

Page

3 NOTICE OF MOTION AND MOTION ..........................................................................................i

4 MEMORANDUM ...........................................................................................................................1 I. INTRODUCTION ...............................................................................................................1
5 II. STATEMENT OF FACTS ..................................................................................................4

6

A. Minorities At FedEx Are Relegated To The Most Physically Demanding,

Lowest Paid, Jobs.....................................................................................................4

7

B. FedEx Has A Culture Of Hostility To Minorities....................................................5

8

C. FedEx’s Operations Are Uniform. ...........................................................................8

9

D. FedEx Is Centralized and Hierarchical. ...................................................................9

E. FedEx’s Employment Policies and Practices Are Uniform. ....................................9

10

F. FedEx’s Policies and Practices Discriminate Against Minorities..........................10

11

1. FedEx’s Promotion Policies And Practices Are Discriminatory. ..............11

12

a. FedEx Discriminates Against Minorities with Respect to Promotions from “Casual” to “Permanent” Status. .......................11

13

b. FedEx Discriminates Against Minorities with Respect to

Promotions to More Desirable Permanent Hourly Positions. ........13

14

i. FedEx Requires Passage of a “Skills” Test that It

15

Knows Has Adverse Impact...............................................13

ii. FedEx’s Discriminatory Performance Evaluation

16

System Causes Under-Promotion. .....................................16

17

iii. FedEx’s Biased Discipline System Causes UnderPromotion. ..........................................................................18

18

iv. FedEx’s Requirement of Manager Approval to

Apply for Promotion Is Arbitrary, Subjective, and

19

Discretionary, and Causes Under-promotion, As

Does Manager Discretion in Selections Among

20

Candidates “Approved” to Apply. .....................................19

21

c. FedEx Discriminates Against Latinos with Respect to Promotions from Hourly Positions to Operations Manager. .........21

22

i. FedEx Selects Managers Using a Highly

Discretionary Process Rife With Opportunities for

23

Biased Decision-Making....................................................22

24

ii. FedEx’s Discriminatory Performance Evaluation and Discipline Systems Block Minorities from

25

Promotions into Management. ...........................................24

2. FedEx Discriminates Against Minority Employees and Lower

26

Level Managers with Respect to Compensation. .......................................24

27

G. FedEx’s Discrimination Is Uniform And Pervasive. .............................................26

III. ARGUMENT.....................................................................................................................26

28

A. This Case Meets The Requirements Of Rule 23(a). ..............................................27

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1 2 3 4 5 6 7 8 9 10 11 12
IV. 13

TABLE OF CONTENTS (continued)

Page

1. The Classes Are Numerous........................................................................27
2. The Classes Share Common Questions of Fact and Law. .........................27
a. The Employment Policies and Practices of FedEx’s Western Region are Uniform and Uniformly Arbitrary, Subjective, and Discriminatory.........................................................................29
b. Consistent Patterns of Under-Promotion, UnderCompensation, and Overdiscipline Raise Common Questions of Law and Fact.............................................................29
c. Plaintiffs’ Disparate Impact and Disparate Treatment Theories Raise Common Issues of Fact and Law. .........................30
3. The Named Plaintiffs’ Claims Are Typical. ..............................................31
4. The Proposed Class Representatives and Class Counsel Are Adequate. ...................................................................................................32
B. The Liability Phase of this Case and the Remedial Phase for Declaratory, Injunctive and Equitable Relief Should be Certified Under Rule 23(b)(2). ..........33
CONCLUSION..................................................................................................................35

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

TABLE OF AUTHORITIES

2

Page

3

CASES

4 Adams v. Pinole Point Steel Co.,

65 FEP Cases (BNA) 774 (N.D. Cal. 1994) ............................................................................29

5 Albemarle Paper Co. v Moody,

6

422 U.S. 405 (1975) ...........................................................................................................14, 31

Amchem Prods. v. Windsor,

7

521 U.S. 591 (1997) .................................................................................................................33

8

Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) ...................................................................................................26

9 Barefield v. Chevron U.S.A., Inc.,

44 FEP Cases (BNA) 1885 (N.D. Cal. 1987) ..............................................................29, 31, 32

10 Barefield v. Chevron U.S.A., Inc.,

11

48 FEP Cases (BNA) 907 (N.D. Cal. 1988) ............................................................................33

Bazemore v. Friday,

12

478 U.S. 385 (1985) .................................................................................................................30

13

Bouman v. Block, 940 F.2d 1211 (9th Cir.), cert. denied, 502 U.S. 1005 (1991) .................................................27

14 Butler v. Home Depot,

1997 WL 605754 (N.D. Cal.) at *6 ...................................................................................11, 30

15 Butler v. Home Depot,

16

Case No. C 94-4335 SI, Order of Jan. 25, 1996, 1996 WL 421436 (N.D. Cal.) ..............passim

Caridad v. Metro-North Commuter R.R.,

17

191 F.3d 283 (2d Cir. 1999), cert. denied, 529 U.S. 1107 (2000) .....................................27, 29

18

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004) .................................................................................26, 29, 30

19 EEOC v. General Tel. Co.,

885 F.2d 575 (9th Cir. 1989), cert. denied, 498 U.S. 950 (1990) ............................................30

20 Eisen v. Carlisle & Jacqueline,

21

417 U.S. 156 (1974) .................................................................................................................27

General Tel. Co. v. Falcon,

22

457 U.S. 147 (1982) .....................................................................................................27, 29, 31

23

Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148 (9th Cir. 1999) .................................................................................................34

24 Griggs v. Duke Power Co.,

401 U.S. 424 (1971) .................................................................................................................31

25 Hanlon v. Chrysler Corp.,

26

150 F.3d 1011 (9th Cir. 1998) ...........................................................................................27, 31

Harriss v. Pan Am. World Airways, Inc.,

27

15 FEP Cases (BNA) 1640 (N.D. Cal. 1977) ..............................................................27, 32, 33

28

Hazelwood Sch. Dist. v. U.S., 433 U.S. 299 (1977) .....................................................................................................11, 25, 30

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1

TABLE OF AUTHORITIES S

(continued)

2

Page

3 In re United Energy Corp. Solar Power Modules Tax Shelter Investors Sec. Litig.,

122 F.R.D. 251 (C.D. Cal. 1985) .............................................................................................33

4 International Brotherhood of Teamsters v. United States,

5

431 U.S. 324 (1977) .................................................................................................................30

Molski v. Gleich,

6

318 F.3d 937 (9th Cir. 2003) .............................................................................................33, 34

7

Penk v. Oregon Bd. of Higher Educ., 816 F.2d 458 (9th Cir. 1987), cert denied, 484 U.S. 853 (1987) .............................................30

8 Probe v. State Teachers’ Ret. Sys.,

780 F.2d 776 (9th Cir. 1986) ...................................................................................................34

9 Reeb v. Ohio Dept. Rehab.,

10

221 F.R.D. 464 (S.D. Ohio 2004) ............................................................................................29

Robidoux v. Celani,

11

987 F.2d 931 (2d Cir. 1993).....................................................................................................27

12

Salinas Roadway Express, 735 F.2d 1574 (5th Cir. 1984) .................................................................................................34

13 Savino v. Computer Credit, Inc.,

172 F.R.D. 346 (E.D.N.Y. 1997), aff’d, 164 F.3d 81 (2d Cir. 1998) ......................................27

14 Sav-On Drug Stores v. Superior Court,

15

Opinion No. S106718, Aug. 26, 2004 .....................................................................................26

Staton v. Boeing,

16

313 F.3d 447 (9th Cir. 2002) ...................................................................................................31

17

Stender v. Lucky Stores, 803 F.Supp. 259 (N.D. Cal. 1992) ...............................................................................11, 29, 30

18 Wagner v. Taylor,

836 F.2d 578 (D.C. Cir. 1987) .................................................................................................30

19 Wards Cove Packing Co. v. Atonio,

20

490 U.S. 642 (1989) .................................................................................................................14

Washington v. Davis,

21

426 U.S. 229 (1976) .................................................................................................................31

22

Wofford v. Safeway Stores, Inc., 78 F.R.D. 460 (N.D. Cal. 1978) ...............................................................................................30

23

STATUTES

24 42 U.S.C. § 2000e-2(k)(1)(A)(ii) ...................................................................................................31 OTHER AUTHORITIES
25 29 C.F.R. § 1607.3(B)....................................................................................................................14

26 Advisory Committee Note to Rule 23(b)(2) ..................................................................................33

27

TREATISES

Newberg on Class Actions

28

§ 3.05 at 233 (4th ed. 2002) ...............................................................................................26, 27

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1

MEMORANDUM

2 I. INTRODUCTION

3

FedEx Express (“FedEx”) prides itself on its speedy, on-time delivery of letters

4 and parcels throughout the world. When it comes to providing equal opportunity for its African-

5 American and Latino employees, however, FedEx fails to deliver at all.

6

African Americans and Latinos (“Minorities”) who work for FedEx find their

7 progress stalled at the lowest levels of the company hierarchy. They experience discrimination in

8 every aspect of their workplace, including performance evaluation, promotion, compensation, and

9 discipline. Although FedEx has policies that purport to guarantee fair and equal treatment, the

10 actual implementation of the policies depends on arbitrary, discretionary, and subjective

11 decisions, rife with stereotyping and racial bias. FedEx does not systematically monitor its

12 selection procedures for reliability, consistency, or adverse impact. When adverse impact is

13 detected, FedEx takes no steps to identify non-discriminatory alternatives. The result is a

14 segregated workplace where Minority workers do the laborious entry- level jobs of lifting, sorting,

15 loading, and unloading mail and packages, but fail to advance into more lucrative, satisfying, and

16 less physically taxing positions such as courier and management positions.

17

At FedEx, Minorities make up approximately 56% of “Handlers” — the workers

18 who load and unload freight — but Minorities hold only approximately 29% of Operation 19 Manager positions and only approximately 23% of Senior Manager positions at the company,1

20 even though management positions are predominantly filled from within the Company’s 21 workforce.2 FedEx’s promotion system is infected with bias. That bias is fostered by (1) a “tap

22 on the shoulder” system of selection for promotion to many jobs; (2) a multiple choice “skills”

23 test, passage of which is required for certain high level hourly positions, that FedEx concedes has

24

25 1 See Statistical Analysis of Race and Ethnic Patterns in Federal Express Workforce by Richard Drogin, Ph.D. (“Drogin Rpt.”) at ¶ 14, Tbl. 3.
26 2 See Garcia at 27:23-29:5, Keitner Decl., Ex. 10; Speroff 7/22 at 30:2-16, Keitner Decl., Ex. 25; 27 FedEx People Manual § 4-5, Candidate Selection—Hourly Positions (noting that “FedEx Express
has a systematic means of selecting candidates for hourly positions within the Corporation for 28 promotions and transfers”), Keitner Decl., Ex. 35.

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1 `statistically significant adverse impact;3 and (3) promotion eligibility requirements that are tied

2 to performance evaluation scores and discipline records, even though the performance evaluations

3 and discipline systems are arbitrary, discretionary and subjective, and have an adverse impact on 4 Minorities that is highly statistically significant.4

5

The uncontrolled discretion and bias in FedEx’s performance evaluation and

6 discipline systems also infects FedEx’s compensation system. Because compensation is tied to an

7 employee’s performance evaluation scores and discipline records, and because those systems

8 adversely affect Minorities, Minority employees and lower level managers are paid substantially

9 less than their similarly-situated white colleagues — even colleagues performing the same jobs,

10 in the same facility, and with the same seniority.

11

This action is brought on behalf of two classes of African-American and Latino

12 employees in FedEx’s Western Region to remedy and obtain redress for FedEx’s discriminatory

13 policies and practices during the period October 17, 1999 through the date of judgment : the

14 “Minority Employee Class” and the “African American Lower-Level Manager Class.” FedEx’s

15 Western Region is comprised of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, 16 Nevada, New Mexico, Oregon, part of Texas, Utah, Washington, and Wyoming.5

17

The “Minority Employee Class” consists of Minority hourly employees in the

18 following positions: Handler, Freight Handler, Material Handler, Checker/Sorter, Customer

19 Service Agent, Courier, Swing Driver, Ramp Transport Driver (“RTD”), Ramp Area Driver,

20 Shuttle Driver, Dangerous Goods Agent, Information Agent, Operations Agent, Ramp Agent,

21 Service Assurance Agent, Truck Control Agent, Trace Representative, Input Auditor, Team

22 Leader, and Dispatcher. The Minority Employee Class is suing to stop FedEx’s policies and

23 practices of (1) providing Minority Employees with disproportionately fewer promotions to

24
25 3 See Hater at 78:4-22, Keitner Decl., Ex. 12; Draft Memo from Hater to Taylor, 7/19/1994, Keitner Decl., Ex. 43; Drogin Rpt. at ¶¶ 49-52; Report on the Basic Skills Tests and Their Use by
26 Federal Express by Nita R. French, Ph.D., in Support of Plaintiffs’ Motion for Class Certification (“French Rpt.”) at 17.
27 4 See Drogin Rpt. at ¶ 34. 28 5 See Van Galder at 11:1-14, Keitner Decl., Ex. 27.

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1 Checker-Sorter, Courier and other driving positions, and Operations Manager than fair and equal

2 treatment would provide; (2) compensating Minority Employees less for the same work than their

3 similarly-situated non-Minority counterparts; and (3) disciplining Minority Employees more

4 frequently and more harshly for the same occurrences than their non-Minority counterparts.

5

The second class, the “African American Lower-Level Manager Class,” consists

6 of African-American managers below the level of Senior Manager. These employees receive

7 lower compensation, including less pay for the same work, and more and harsher discipline than

8 their non-Minority counterparts.

9

Both classes assert claims under Title VII of the Civil Rights Act of 1964,

10 42 U.S.C. § 2000(e) et seq. for disparate treatment and disparate impact, and under 42 U.S.C.

11 § 1981. Class members working, or who worked, in California also bring claims under

12 California’s Fair Employment and Housing Act, Government Code § 12940 et seq.

13

In support of class certification, Plaintiffs rely on (1) deposition testimony,

14 declarations, and charges of discrimination by the named plaintiffs; (2) eighteen declarations from

15 current and former FedEx employees; (3) FedEx documents and the testimony of FedEx’s

16 corporate representatives; (4) the report of Richard Drogin, Ph.D., a statistician who identifies the

17 statistically significant disparities in FedEx’s compensation, evaluation, promotion, and discipline

18 decisions; (5) the report of William Bielby, Ph.D., a sociologist who explains how racial

19 stereotypes infect FedEx’s human resources processes; and (6) the report of Nita French, Ph.D.,

20 an industrial organizational psychologist, who explains that FedEx’s requirement of passage of 21 the race-biased “Basic Skills Test” for promotion to several key jobs is not justified.6 This

22 evidence demonstrates a pattern of under-promotion, under-compensation, and overdiscipline of

23 Minority Employees and African American Lower-Level Managers throughout FedEx’s Western

24 Region. The result of FedEx’s discriminatory policies and practices is that Minority Employees

25 disproportionately occup y low-paid, physically demanding hourly positions and the few who do

26 progress to driver and management positions are compensated less than similarly-situated whites.

27 28 6 Proposed Class Counsel also submit declarations regarding their adequacy.

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1

Class certification is appropriate pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2).

2 All of the prerequisites to a class action in Rule 23(a) — numerosity, common questions,

3 typicality, and adequacy — are satisfied. The Minority Employee Class has thousands of class

4 members and the African American Lower-Level Manager Class has several hundred members.

5 Common issues include whether FedEx’s uniform promotion, compensation and discipline

6 policies have disparate impact on Minority employees and lower level managers; whether

7 FedEx’s discrimination is intentional; and whether the pattern and practice of under-promotion,

8 under-compensation, and overdiscipline of Class members violates the employment

9 discrimination laws. The proposed class representatives are members of the classes they seek to

10 represent and have claims that are typical of other class members. They will adequately represent

11 the classes, and have retained counsel who, collectively, have the resources and experience to

12 represent the Class effectively.

13

Certification is appropriate under Rule 23(b)(2) because this suit seeks meaningful

14 declaratory and injunctive relief. 7 The primary goal of this litigation is to alter FedEx’s

15 performance evaluation, job posting, promotion, compensation, and discipline policies and

16 practices so that FedEx delivers equal employment opportunities to its Minority employees and 17 lower level managers as well as it delivers packages and letters to its customers.8

18 II. 19 20

STATEMENT OF FACTS
A. Minorities At FedEx Are Relegated To The Most Physically Demanding, Lowest Paid, Jobs .

21

The cold statistics show that Minority Employees at FedEx are consigned to

22 hourly labor — they perform the more physically demanding, lower paid work of loading and

23 7 As it did in Butler v. Home Depot, Case No. C 94-4335 SI, Order of Jan. 25, 1996, 1996 WL 421436 (N.D. Cal.), the Court should bifurcate the case into liability and relief phases. As in
24 Butler, the first phase, certified under Rule 23(b)(2), would “address liability and relief applicable to the class as a whole, including declaratory and injunctive relief, and whether defendant is liable
25 for punitive damages.” Id. at *1. After a finding of liability in Phase I, the Court should grant declaratory and injunctive relief, and equitable relief such as back pay. The Court can decide
26 after the liability phase whether the compensatory damages phase should be certified under Rule 23(b)(3), with notice and an opportunity to opt out.
27 8 See Declarations of: Kalini Boykin at ¶ 2; Derrick Satchell at ¶ 2; Valerie Brown at ¶ 2; Rick 28 Gonzales at ¶ 2; Rachel Hutchins at ¶ 2; Kelvin Smith, Sr. at ¶ 2; and Ken Stevenson at ¶ 2.

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1 unloading packages, but are underrepresented in the less physically taxing, better paying, driver

2 and management positions. At each step up the promotions ladder, the percentage of Minorities

3 drops. (Drogin Rpt. at ¶¶ 12-14.)

4

Among hourly positions, the positions with the highest percentages of Minorities

5 are the Handler, Freight Handler, and Material Handler positions — the three lowest paid

6 positions in the Company. (Drogin Rpt. at ¶ 14, Table 3.) The representation of Minorities

7 among the higher paid Courier and Ramp Transport Driver positions drops by almost half.

8 Although approximately 56% of Handlers are Minorities, only approximately 30% of Couriers

9 are Minorities. (Id.) The drop-off in the percentage of African Americans is particularly

10 dramatic: although approximately 35% of Handlers are African American, only approximately

11 13% of Couriers are African American. (Id.)

12

For Latinos, the drop continues into the management ranks. Latinos comprise

13 approximately 17% of Couriers, but only 8.5% of Operations Managers, the lowest management

14 position. (Id.)

15

B. FedEx Has A Culture Of Hostility To Minorities.

16

At the root of the statistical disparity between FedEx’s Minority employees and

17 non-Minority employees is a mix of conscious and unconscious racial bias and stereotypes. The

18 company’s sophisticated exterior masks a culture of hostility towards minorities and disregard for

19 workplace segregation and FedEx’s legal obligations. A lack of meaningful standards,9 controls

20 and monitoring allows those racial biases and stereotypes to infect FedEx’s performance

21 evaluation, discipline, promotion, and compensation systems.

22

Known as the “ole boys network” or “the country club,” the management of

23 FedEx’s Western Region engages in behaviors that have long since been deemed unacceptable in

24 our society. High ranking FedEx officials, including Mike Pigors, the current Vice President for

25 FedEx’s Western Region of the AGFS Division — and the FedEx officer responsible for diversity

26 in the region (Shannon Brown at 73:8-75:5, Keitner Decl., Ex. 3), have repeatedly, and openly,

27 9 Although FedEx has written personnel policies that touch upon a variety of subjects, those 28 policies leave large amounts of discretion to local managers.

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1 used racial slurs.10

2

Those racial slurs were not isolated comments: they reflect a corporate culture,

3 and open unwritten policy at FedEx of hostility toward Minorities. Not only were the senior

4 FedEx officials who made those slurs never disciplined for making them, but a manager who

5 challenged his superiors about their use of such terms was warned that supporting Minorities

6 would be harmful to his career at FedEx. (Snyder at 52:25-56:16, Keitner Decl., Ex. 24.) When

7 former Southern California Managing Director Michael Snyder questioned whether such

8 language was appropriate, he was derided by Mr. Rebholz, his boss, as a “nigger lover.” (Id. at

9 54:12-24.) Mr. Rebholz then counseled Mr. Snyder about FedEx’s culture and what he needed to

10 do to fit in:

11

Q. When Mr. Rebholz made these types of comments, did you say

anything to him or react in any way to indicate whether you

12

approved or disapproved of him?

13

THE WITNESS: Yes, I reacted.

14

MR. ROOT: In what manner?

15

A. Challenging him to that thought process and whether it was

appropriate. 16

Q. When you did that, how did Mr. Rebholz respond? 17

A. I remember on one occasion he called me a “nigger lover.” I

18

recall that pretty specifically. He explained --

19 10 Mr. Pigors referred to African Americans as “niggers.” Snyder at 75:3-8. At the time, 20 Mr. Pigors was Vice President of the Western Region of DGO. See also Rogers at 114:2-115:11,
719:8-19, Keitner Decl., Ex. 23, in which Mr. Rogers, a FedEx Senior Manager, testifies that Mr. 21 Pigors intentionally and dismissively called him “boy” during a senior managers meeting in late
2000.
22 Tim Wertner, who is currently a Managing Director for FedEx’s Los Angeles/Inland Empire District, the largest in the Western Region, also referred to African Americans as “niggers.”
23 Snyder at 86:18-20. When asked about the statements, Mr. Wertner testified that he could “not recall.” Wertner at 256:2-257:18, Keitner Decl., Ex. 28. Jerome Rogers testified that Mr.
24 Wertner made known his views that African Americans are inferior to whites. Rogers at 311:25313:9, 459:10-464:15, 766:14-768:11. Mr. Wertner also served as a Managing Director of the
25 Bay Area Metro District during the Class period.
26 David Rebholz, currently FedEx’s Executive Vice President of Operations repeatedly called African Americans “niggers” when he was Operations V.P. of FedEx’s Western Region in the
27 1990s. Mr. Rebholz now reports directly to FedEx CEO David Bronczek. Accordingly to Mr. Snyder, Ted Weise, who was President and CEO of FedEx during part of the class period,
28 repeatedly referred to blacks as “niggers.” Snyder at 56:22-59:7.

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1

MR. COCHELL: Objection, form of the question. Go ahead.

2

THE WITNESS: -- his rationale and how the company was, and

that I was going to need to get used to that and understand if I

3

wanted to have a career.

4

* * * *

5

Q. BY MR. ROOT: You mentioned in your testimony that he

explained to you the way things were at FedEx. And I am asking

6

you what specifically he said in that regard.

7

THE WITNESS: I understand the question. To the best of my

recollection, that it was a southern boy mentality in upper

8

management and you had to fit in, something along those lines. I

don’t remember the specific quotes. But kind of coaching me and

9

counseling me that -- trying to make a stand on minorities’ behalf

was inappropriate.

10

Q. BY MR. ROOT: And by “inappropriate,” did you understand

11

him to mean harmful to your career at FedEx?

12

A. Yes, I understood that’s -- I think that’s what he was trying to

tell me.

13

14 (Snyder at 54:12-56:16, Keitner Decl., Ex. 24.) That testimony about FedEx’s culture is

15 confirmed by a statement by long-time FedEx HR advisor Sam Haskins in a human resources

16 document produced by FedEx and dated June 2, 1992 that “[i]f any adverse impact [in manager

17 hiring] indeed exists, it’s probably due to Federal Express culture and management hiring

18 practices” (Memo, Haskins to Pollard, 6/2/1992, Keitner Decl., Ex. 50) and by Mr. Haskins’

19 explanation of that statement in his August 31, 2004 deposition testimony that in the 90s “we

20 were very much predominantly [a] white male management population, and that was our hiring 21 practice.”11

22

Where, as here, a company has a history of racial bias in its corporate culture, that

23 11 Haskins at 11:23-12:19, Keitner Decl., Ex. 11; see also Darrell Kato, former Managing Director of the Coastal District, at 60:23-62:12, 130:22-140:2, Keitner Decl., Ex. 16 (“The managing
24 directors within the western region were considered to be a good ol’ boys network.”).
25 The culture of hostility to Minorities is manifested in other ways as well. Members of the overwhelmingly Caucasian senior management of FedEx make no secret of their desire not to
26 work with Minorities. See Snyder at 54:12-56:16. The hiring process allows the exclusion of Minorities from certain interviews. See, e.g., Kato at 124:6-125:24. On rare occasions when
27 Minority Employees are promoted into management, they are referred to as “tokens,” Snyder at 53:25-54:2, and excluded from group e- mails and other company communications. Rogers at
28 768:17-770:1, Keitner Decl., Ex. 23.

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1 bias is likely to continue unless the company takes strong affirmative steps to eliminate the biased

2 culture. FedEx has taken no such steps. Instead, FedEx fails to comply with its legal obligations

3 to monitor adverse and impact and turns a blind eye to the adverse impact that permeates its

4 evaluation, promotion, discipline and compensation systems. As a result, the discriminatory

5 corporate culture described by Mr. Rebholz and Mr. Haskins helps to explain the statistical

6 disparities that currently pervade FedEx’s Western Region. (Bielby Rpt. at ¶¶ 40-41.)

7

Racial bias infects every aspect of the FedEx workplace, including evaluation,

8 promotion, compensation, and discipline. Feeding on the atmosphere established by senior

9 management, and given human resources systems that permit application of discretionary

10 decision- making without guidelines or controls, local managers resort to stereotypes and biased

11 attitudes when making evaluation, promotion, compensation, and discipline decisions. (Id. at

12 ¶ 42.)

13

C. FedEx’s Operations Are Uniform.

14

Throughout the Western Region, and indeed throughout the United States,

15 FedEx’s operations are uniform. FedEx’s distribution facilities and its workplace systems are

16 standardized. Different facilities have largely the same categories of employees, and the job

17 duties of those employees are the same. (See Van Galder at 45:16-46:9, Keitner Decl., Ex. 27;

18 Garcia at 35:13-23, Keitner Decl., Ex. 10.) The job of a Handler is the same in Alaska as it is in

19 Hawaii. (Van Galder at 48:12-15, 56:1-9, 60:2-17.) The job of a Courier is the same in Seattle as

20 it is in Phoenix. An employee transplanted from Portland, Oregon to Los Angeles, California to

21 Reno, Nevada to Spokane, Washington could make a seamless transition. As a result, employee

22 transfers between facilities not only occur (see Fifer at 40:11-17, Keitner Decl, Ex. 9), but are

23 encouraged by the Company for Managers. (See, e.g., Van Galder at 56:10-57:14; Fifer at 76:23-

24 77:7.)

25

Uniformity is more than just a feature of FedEx’s operations — it is a requirement.

26 FedEx goes to great lengths to ensure cons istenc y in its operations. (Cioffi at 89:9-17, Keitner

27 Decl., Ex. 5.) Only through uniformity and consistency can FedEx ensure proper service to its

28 worldwide customers. (Moses at 32:17-33:18, Keitner Decl. Ex. 18.)

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1

D. FedEx Is Centralized and Hierarchical.

2

FedEx has two operational Divisions in the Western Region: Air Ground Freight

3 Services (“AGFS”) and Domestic Ground Operations (“DGO”). The DGO Division includes the

4 Couriers who drive the familiar trucks and interact most frequently with the public. The AGFS

5 Division is responsible for air transport of packages after they are collected by DGO, as well as

6 for delivery of large and heavyweight packages. (See Van Galder at 27:25-28:8, Keitner Decl.,

7 Ex. 27.)

8

FedEx is also divided into geographical Regions. The FedEx Regions are headed

9 by Vice Presidents of Operations for each Division. The Vice President of the Western Region

10 for AGFS is Michael Pigors, who has referred to African Americans as “niggers.” (Snyder at

11 75:3-8, Keitner Decl., Ex. 24.)

12

Regions are divided into Districts, which are headed by Managing Directors who

13 report directly to the Vice Presidents of Operations. The Managing Director of DGO for the

14 LA/Empire District is Tim Wertner, who also has referred to African Americans as “niggers.”

15 (Id. at 86:18-20.)

16

The Districts are comprised of individual distribution/service centers in the DGO

17 division, and of “organizations” in AGFS, which may correspond to a single facility or to set of

18 operations within a larger airport based facility. Both service centers and organizations are run by 19 Senior Managers, who report directly to the Managing Directors. Senior Managers supervise 20 Operations Managers, the lowest management positions. The Vice Presidents of Operations, the 21 Managing Directors, and the Senior Managers form the senior management ranks of the 22 Company. The chains of command in the Western Region, as in all FedEx Regions, run directly

23 to FedEx corporate headquarters in Memphis. The Executive Vice President of Operations is 24 David Rebholz, who has made it clear that the “southern boy mentality in upper management” 25 will exclude anyone who speaks up on behalf of Minorities. (Id. at 52:25-56:16.)

26

E. FedEx’s Employment Policies and Practices Are Uniform.

27

All personnel policies, procedures, and forms are produced by and disseminated

28

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1 from FedEx’s corporate headquarters in Memphis.12 Included among FedEx’s standardized

2 personnel materials are the People Manual (a comprehensive guide to uniform, mandatory

3 policies and procedures); Best Practices guides for AGFS and DGO; a uniform, corporate-wide 4 Legal manual; and uniform materials for employee orientation, training, and evaluation.13

5

Personnel decisions about hiring, evaluation, promotion, discipline, and

6 compensation of hourly employees are primarily made by Operations Managers, who report to

7 Senior Managers. Personnel decisions regarding Operation Managers are primarily made by

8 Senior Managers.

9

When making these personnel decisions, local managers operate within a system

10 that applies uniformly throughout FedEx, not only in the Western Region, but nationwide. Local

11 managers use the same forms, administer the same tests, and apply the same policies throughout 12 the Western Region. 14

13

FedEx’s policies regarding promotion, compensation, evaluation, and discipline

14 are set forth in the People Manual. The People Manua l policies apply companywide.15 No

15 officers or managers in the Western Region have authority to alter or deviate from these policies.

16 (Van Galder at 90:16-91:6, Keitner Decl., Ex. 27; Garcia at 9:1-8, Keitner Decl., Ex. 10.) Those

17 policies include the eligibility requirements for promotion and the formulas for setting

18 compensation.

19

F. FedEx’s Policies and Practices Discriminate Against Minorities.

20

Statistical analysis of FedEx’s employment policies and practices establishes that

21 FedEx discriminates against Minority employees with respect to promotions, compensation,

22 evaluations, and discipline, and against African American Lower-Level Managers with respect to

23 12 See, e.g., Speroff 7/22 at 22:7-26:7, Keitner Decl., Ex. 25; FedEx People Manual—Publication Information, Keitner Decl., Ex. 31 (indicating that all amendments to the People Manual shall be
24 made by the CEO).
25 13 See, e.g., Van Galder at 85:1-88:12, Keitner Decl., Ex. 27; McQueen at 92:6-93:16, Keitner Decl., Ex. 17.
26 14 See, e.g., McQueen at 92:6-93:16; Garcia at 9:1-8, Keitner Decl., Ex. 10; Fifer at 13:3-14:14, Keitner Decl., Ex. 9; Speroff 7/22 at 22:7-23:16, Keitner Decl., Ex. 25.
27 15 See, e.g., Buchanan at 20:2-20:5, Keitner Decl. Ex. 4 (referring to the People Manual as a 28 FedEx manager’s HR “Bible”); Presnoples at 11:24-12:11, Keitner Decl., Ex. 21.

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1 evaluations, compensation, and discipline. With respect to each of these employment practices,

2 these disparities adverse to Minorities are highly statistically significant, and could not have

3 occurred by chance. (See Drogin Rpt.. at ¶¶ 21-66.) These statistical disparities are so powerful

4 that they not only establish the prima facie case for a disparate impact claim, see Hazelwood Sch.

5 Dist. v. U.S., 433 U.S. 299, 307-8 (1977), but form a basis for inferring intentional

6 discrimination, see Butler v. Home Depot, 1997 WL 605754 (N.D. Cal.) at *6; Stender v. Lucky

7 Stores, 803 F.Supp. 259, 332-34 (N.D. Cal. 1992).

8

1. FedEx’s Promotion Policies And Practices Are Discriminatory.

9

a. FedEx Discriminates Against Minorities with Respect to

Promotions from “Casual” to “Permanent” Status. 10

11

FedEx’s pattern of discrimination begins from the moment employees are hired. A

12 new hire can receive either a permanent or “casual” position; “casual” employees do not have

13 regular work schedules, receive no benefits, and do not have access to the FedEx intranet, which

14 contains on- line personnel and training materials, including the on-line Job Change Application

15 Tracking System (JCATS) through which permanent employees apply for promotions.

16 (Williamson at 12:1-13:16, Keitner Decl., Ex. 29; Fifer at 19:2-25, Keitner Decl., Ex. 9.) 17 Upgrading from casual to permanent is considered a promotion.16 Permanent full- time positions

18 provide greater stability, more prestige, and quicker promotion to other jobs within FedEx.

19

Minority “casual” employees are treated far worse than similarly situated whites

20 with respect to promotions to permanent positions. A statistical analysis of promotions from

21 casual to permanent, controlling for originating job, geographic location, and time in job reveals

22 statistically significant disparities adverse to both African Americans and Latinos. (Drogin Rpt.

23 at ¶¶ 21-31.) Focusing on the move from casual Handler to permanent Courier — the most

24
25 16 Although one corporate deponent described the placement of a “casual” employee into a permane nt position as an external hire, suggesting that “casual” employees are somehow outside
26 the company, see Huffer at 79:3-22, Keitner Decl., Ex. 15, the company’s own databases confirm casuals are in fact employees of FedEx. The FedEx computer system contains casual employees
27 in the payroll data and identifies the names of casual employees moving to a permanent position with the “P” code used for promotions. See Drogin Rpt. at n.6. Regardless of what this job move
28 is called, Minorities fare worse.

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1 common path for promotions into the Courier position17 — similarly establishes dramatic 2 disparities adverse to Minorities.18

3

Of all of FedEx’s employees, casual employees are the least protected. They have

4 the least job security; they have no health care security; and they have no regular schedules. Of

5 particular relevance to this case, they have no meaningful protection from racial discrimination,

6 and cannot make use of FedEx’s internal procedures for handling race discrimination 7 complaints.19

8

Unlike permanent employees, casual employees are not permitted to apply for

9 positions using FedEx’s computerized job application system. (Williamson at 12:1-20, Keitner

10 Decl., Ex. 29; Huffer at 78:18-79:2, Keitner Decl., Ex. 15; Garcia at 23:10-12, Keitner Decl., Ex.

11 10.) They are not privy to the information about job postings contained in that system. (Id.) As a

12 result, permanent positions filled from the pool of “casual” employees are filled in part by

13 managers inviting certain employees to apply — a “tap-on-the-shoulder” process. (Garcia at

14 19:16-22:18; see also Huffer at 34:21-35:1, 46:6-25, 54:5-55:16; Hesser at 48:9-14, 50:12-24,

15 Keitner Decl. Ex. 14; Presnoples at 131:6-14, Keitner Decl. Ex. 21.) As Professor Bielby, the

16 immediate past President of the American Sociological Association explains, such processes are

17 susceptible to the influences of racial stereotyping and “in- group favoritism” by white 18 managers.”20

19

Managers are not systematically trained on how to select among casual applicants.

20 (Buchanan at 133:18-135:10, Keitner Decl., Ex. 4; Huffer at 60:21-62:10, Keitner Decl. Ex. 15.)

21 Accordingly, a Manager who chooses among casua l employees has almost unfettered discretio n

22 — even more than a Manager choosing among permanent employees. As Professor Bielby

23 explains, such arbitrary, discretionary and subjective decision- making often is infected by racial

24 17 Of the persons promoted into Courier positions during 1999-2003, approximately 70% were
25 promoted from the Handler and Freight Handler jobs. Drogin Rpt. at ¶ 22. 26 18 Id. at ¶¶ 21-26, 31 (for the years 1999-2003, the statistical disparity is -4.49 standard deviations
for African Americans; -4.34 standard deviations for Latinos). 27 19 Dandridge at 27:4-29:7, Keitner Decl. Ex. 7 (GFT policy applies to permanent employees). 28 20 See Expert Report of William T. Bielby, Ph.D. (“Bielby Rpt.”) at ¶¶ 4, 8, 20-23, 33, 42.

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1 stereotypes and results in biased outcomes. (Bielby Rpt. at ¶¶ 8, 15-39, 42.) That is what

2 happens at FedEx.

3

b. FedEx Discriminates Against Minorities with Respect to

Promotions to More Desirable Permanent Hourly Positions. 4

Handler jobs are the most physically demanding and lowest paid jobs at FedEx.21

5

Accordingly, moving from Handler jobs to less physically taxing, higher paid, hourly positions 6

such as Checker/Sorter and Courier and Ramp Transport Driver is desirable. 7
A statistical analysis of the JCATS data22 establishes that both African American 8
and Latino employees are selected for promotion at rates materially lower than similarly situated 9
whites. This under-promotion is statistically significant with respect to both African Americans 10
and Latinos.23 11

A statistical ana lysis of all moves from Handler to Checker/Sorter, from Handler 12
to Courier, from non-Handler to Courier, and from Handler to Material Handler, including moves 13
that do not appear in the JCATS data, confirms that Minorities are under-promoted. The 14
disparities are highly statistically significant.24 15

At least three mechanisms of discrimination contribute to these disparities: (1) a 16

biased “skills” test; (2) biased performance evaluations; and (3) a biased discipline system. 17

i. FedEx Requires Passage of a “Skills” Test that It Knows

18

Has Adverse Impact.

19 To be promoted from Handler or other low level hourly positions into Courier,
20 21 Checkers/Sorters are paid more than Handlers, and Couriers and Ramp Transport Drivers are
21 paid more than Checkers/Sorters. Drogin Rpt. at ¶ 14, Tbl. 3.
22 22 The JCATS data are supposed to include all promotions of permanent hourly employees at FedEx.
23 23 Drogin Rpt. at ¶¶ 46, 48 (-7.19 standard deviations for African Americans; -4.74 standard deviations for Latinos).
24 24 Drogin Rpt. at ¶¶ 21-31 (finding statistical disparities adverse to African Americans during the 25 period 1999-2003, of -6.42 standard deviations as to promotions from Handler to Courier [-4.49
from Casual Handler to Permanent Courier and -4.59 from Permanent Handler to Permanent 26 Courier], -7.75 standard deviations from non-Handler to Courier, -3.37 from Handler to
Checker/Sorter, -11.34 from Handler to Material Handler; finding disparities adverse to Latinos 27 as to promotions from Handler to Courier of -4.43 standard deviations from Casual Handler to
Permanent Courier, and -3.72 standard deviations from any Handler position to Permanent 28 Courier.)

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1 Ramp Transport Driver, or Service Agent positions, a FedEx employee must pass a group of tests 2 known as the Basic Skills Tests (“BST”).25 FedEx concedes that the BST has statistically 3 significant adverse impact.26 The adverse impact of the BST is extraordinarily large. For

4 example, the BST disqualifies almost two-thirds of African Americans who apply for the Courier 5 job; the pass rate is less than one- half the pass rate for white applicants.27

6

Although FedEx claims the BST is a valid predictor of performance, Dr. Nita

7 French, an industrial organizational psychologist who has reviewed all of the materials relating to

8 the supposed validation of the BST, has concluded that FedEx’s use of the BST is not justified.28

9 In addition, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs has 10 found that the BST has adverse impact and is not valid.29 Despite being aware that the BST has

11 statistically significant adverse impact, FedEx has disregarded its legal obligation under the 1978

12 Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”) to monitor 13 adverse impact30 and to explore alternatives that have less adverse impact.31

14 25 See General BST Information, Keitner Decl., Ex. 39.
15 26 Hater at 78:4-79:13, Keitner Decl. Ex. 12; see also Drogin Rpt. at ¶¶ 49-52 (finding disparities so significant that the probability of them occurring by chance is “essentially zero”).
16 27 Hater at 85:1-86:5, Keitner Decl. Ex. 12; see Draft Memo from Hater to Taylor, 7/19/1994, 17 Keitner Decl., Ex. 43.
28 See French Rept. at 15, 18. 18 29 Hater at 51:13-53:23; OFCCP Letter of 6/29/2000, Keitner Decl., Ex. 42.
19 30 Hater at 79:4-82:9. The Uniform Guidelines require employers to maintain records that disclose the impact of tests, such as for BST, upon employment opportunities of “persons
20 identified by race, sex, or ethnic group.” 29 C.F.R. § 1607.4(c). “Adverse impact determinations should be made at least annually…” 29 C.F.R. § 1607.15.A(2). The Supreme Court has
21 underscored the importance of these recordkeeping requirements. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657-58 (1989)
22 31 Hater at 82:10-83:3; see French Rpt. at 18. It is a legal duty for an employer to explore 23 whether there is an alternative selection practice or an alternative use of a selection practice that
has less adverse impact provided that the alternative is substantially equally predictive of job 24 performance. See Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.3(B)
(an employer should “make a reasonable effort to become aware of . . . alternative procedures” 25 with less adverse impact, and that “[w]here the user is shown an alternative selection procedure
with evidence of less adverse impact and substantial evidence of validity of the same job in 26 similar circumstances, the user should investigate it to determine the appropriateness of using or
validating it. . . .”). Accordingly, even if an employer demonstrated the validity of a test, the use 27 of the test is unlawful if the plaintiff shows that the employer failed to implement an effective
alternative selection device that would have a lesser adverse impact. Albemarle Paper Co. v 28 Moody, 422 U.S. 405, 425 (1975); 42 U.S.C. § 2000e-2k(1)(A)(ii).

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1

FedEx has also failed to demonstrate that Service Agent, Courier, and Ramp

2 Transport Driver candidates who pass the BST perform better on the job than those who fail.

3 (See French Rpt. at 14-15.) FedEx concedes that many skills not tested on the BST are important

4 for these jobs; the BST measures only 16 of the 66 skills identified by Subject Matter Experts as

5 important to the job of Courier. (Hater at 154:10-157:25, Keitner Decl., Ex. 12; see French Rpt.

6 at 9.)

7

The BST prevents a huge percentage of Courier candidates from obtaining Courier

8 positions even though these candidates would successfully complete the mandatory Courier

9 training course. Of 102 Couriers who took the BST and Courier training in a pilot study, 96

10 candidates passed training, but only 52 candidates passed the BST. (Id. at 267:16-272:10; see

11 Validation of BST With Courier and Service Agent Training Performance, p. 7, Keitner Decl.,

12 Ex. 41.) Because this was a pilot study only, the 44 candidates who failed the BST but passed

13 Courier training went on to work as Couriers. Had the BST requirement been in place at that

14 time, 44 out of 102 Courier candidates would have been excluded from this promotional

15 opportunity even though almost all of them were able to pass training. The inability of the BST to

16 predict success on the job was underscored by Melody Weaver-Thomas, a DGO training

17 manager, in a March 6, 2000 memo in which she calculated Courier and Service Agent training

18 pass/fail rates and concluded that the “basic skills test implemented in November 1996 has not

19 shown a significant change in pass/fail rates in training programs,” meaning that the BST

20 requirement has not improved the job performance of courier trainees. (Id. at 92:8-97:8; Memo

21 from Weaver-Thomas to Distribution, 3/6/2000, Keitner Decl., Ex. 44; see French Rpt. at 6.)

22

FedEx has retained the BST requirement in the face of evidence that its use

23 confers little operational benefit while causing enormous adverse impact. (See Drogin Rpt. at

24 ¶¶ 49-52; French Rpt. at 18.) The BST requirement applies uniformly to all Service Agent,

25 Courier, and Ramp Transport Driver candidates in the Western Region and, indeed, nationwide.

26 The harm to Minorities caused by FedEx’s unjustified use of the BST gives rise to a paradigmatic

27 class claim for injunctive relief.

28

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1

ii. FedEx’s Discriminatory Performance Evaluation System

Causes Under-Promotion.

2

3

In addition to requiring passage of the BST, FedEx restricts promotion eligibility

4 to employees who obtain certain performance evaluation scores on their most recent reviews.

5 The People Manual specifies that hourly employees must have a most recent performance 6 evaluation score of 5 (on a 7 point scale) to be eligible for promotion. 32 Because the performance

7 evaluation system is biased against Minorities, that requirement leads to under-promotion of

8 Minorities.

9

A statistical analysis of performance evaluation scores establishes that both

10 African Americans and Latinos receive lower evaluation scores than whites in the same jobs. The 11 results are highly statistically significant.33 The adverse impact is so strong that the probability of

12 it occurring by chance as to Latinos is less than one in ten to the 14th power and the probability of

13 it occurring by chance for African Americans is far less than one chance in ten to the 53rd power.

14

This disparity raises the question of why the performance evaluations are biased.

15 The answer lies in the lack of guidance given to local managers on how to conduct evaluations,

16 and the failure to implement safeguards to ensure that managers consider the same criteria, weigh 17 the criteria in the same way, rate consistently themselves, and rate consistently as a group.34

18

FedEx’s own industrial organizational psychologists concede that the performance

19 evaluations are unreliable. Joel Vaslow, an industrial organizational psychologist at FedEx,

20 harshly criticized the performance ratings in an e- mail to other HR personnel at FedEx. Vaslow

21 stated, among other criticisms, that “[b]asically performance review ratings tend to be unreliable

22 and it may be difficult or meaningless to compare performance reviews from one employee to the 23 next.”35 David Brooks, another industrial organizational psychologist at FedEx, also harshly

24 32 See People Manual § 4-15, Career Opportunity at Tbl. 1, p. 187, Keitner Decl., Ex. 36; Speroff 25 7/22 at 65:14-67:6, Keitner Decl., Ex. 25.
33 See Drogin Rpt. at ¶¶ 33-35 (-15.91 standard deviations for African Americans; -8.78 standard 26 deviations for Latinos).
27 34 See Bielby Rpt. at ¶¶ 15-29. 35 See Email, Vaslow to Haskins et al., 8/10/1999, Keitner Decl., Ex. 45; see also Validation of
28 BST With Courier Performance (1995), p. 3, Keitner Decl., Ex. 40, indicating that FedEx

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1 criticized the performance ratings. For example, in the ASPIRE Follow-up Criterion Validation 2 Report for 2003, Brooks categorically described the “limitations” of the performance ratings.36

3

Part of the problem is that the performance evaluation forms require the evaluation

4 of subjective criteria such as “teamwork,” lack of complaining (which listed as an indicia of 5 “teamwork”), “professionalism,” and neatness.37 But even more problematic is the lack of

6 guidelines, controls, and monitoring to ensure that the subjective criteria are used in the same way

7 by different managers, and by the same manager with respect to different employees, so that the

8 evaluations are consistent and reliable and stereotypes and biases are controlled. (See Bielby

9 Report at ¶¶ 26-29.)

10

Although the evaluation forms give guidelines, the guidelines are only illustrative.

11 (Perry at 119:22-126:3, Keitner Decl., Ex. 19.) Different managers consider different things. (Id.

12 at 126:4-128:13.) A Senior Manager testified that he did not apply the criteria the same way from

13 employee to employee. (Id. at 131:1-135:3.) Because FedEx does not define the terms on

14 evaluation forms (id. at 119:22-126:3), adequately train managers about how to use them reliably

15 (id. at 124:17-126:3, 139:7-140:2), or monitor their use to ensure that they are being used reliably

16 and consistently (id. at 117:24-119:8), they have been infected by the influence of racial 17 stereotypes (id. at 118:3-119:8, 136:12-139:16).38

18

FedEx has made no systematic effort to determine whether its performance

19 evaluations, which have a direct influence on compensation, eligibility for promotion, and

20 applicant ranking for promotions, are consistent, reliable, and accurate measures of job

21
performance review ratings are characterized by “negative skew and restricted variance.” FedEx 22 has not produced, and its industrial psychologists are not aware of, any study conducted to
determine the reliability, consistency, or validity of performance reviews. See Hater at 303:7-12, 23 Keitner Decl. Ex. 12; Brooks at 26:7-22, Keitner Decl., Ex. 2.
24 36 PR400175-76, Keitner Decl., Ex. 49; see also Validations of Assessments for the First-Level Manager Jobs at Federal Express (1998), p. 18, Keitner Decl., Ex. 48, indicating the “common
25 perception within the company that performance review ratings are inflated and some times lack accuracy,” a perception that Dr. Brooks confirmed in deposition. Brooks at 83:3-84:5.
26 37 See Individual Progress Discussion Form, Keitner Decl., Ex. 37; Courier OLPR, Keitner Decl., Ex. 38.
27 38 See Bielby Rpt. at ¶¶ 26-29; see also Declarations of Boykin at ¶¶ 12-16; Satchell at ¶¶ 9-11; 28 James at ¶¶ 14, 15, 18, 23; Haynes at ¶¶ 25-27, 30, 34.

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1 performance, and whether they have adverse impact.39 FedEx’s failure to comply with its legal

2 obligations to determine whether its evaluation system has adverse impact further illustrates its

3 pervasive culture of disrespect for Minorities and disregard for the law.

4

iii. FedEx’s Biased Discipline System Causes Under-

Promotion. 5

6

The People Manual also provides that an employee with an active discipline

7 warning letter or performance reminder is not eligible for promotion. 40 Warning letters can also

8 be taken into account in performance reviews, even after the warning letter is no longer active.41

9 Online counselings, which remain on FedEx’s PRISM system indefinitely, can also be taken into 10 account in performance reviews.42 As described above, performance reviews impact eligibility

11 for promotion. An unsatisfactory performance review in turn automatically results in the issuance 12 of a performance reminder letter.43 Thus, performance reviews and discipline are intertwined,

13 such that bias entering into any of these decisions contaminates each of the others and

14 reverberates through the employee’s FedEx career.

15

Because FedEx’s disciplinary system is racially biased, Minorities are

16 disproportionately ineligible for promotion due to discipline issues. A statistical analysis of

17 FedEx’s discipline system establishes that Minorities are disciplined far more frequently than 18 whites. 44 The overdiscipline of both African Americans and Latinos is extremely statistically

19 39 See Hayward at 50:3-51:12, Keitner Decl. Ex. 13 (no study of adverse impact), 83:1-11 (same), 20 141:25-142:20 (no monitoring of how performance reviews actually used), 145:19-148:10 (no
systematic training of managers), 149:8-151:1 (no systematic auditing to detect potential 21 problems), 164:6-166:4 (little guidance provided on how to apply scale of 1-7), 175:12-177:15
(no coherent plan for how to deal with adverse impact if detected), 180:15-183:1 (no follow-up to 22 ensure consistency in ratings), 206:13-212:17 (no written guidelines on how to interpret and
apply performance categories other than forms themselves), 222:25-224:17 (no studies done to 23 determine whether stereotypes affect performance reviews).
40 See People Manual § 4-5, Candidate Selection—Hourly Positions, Tbl. 1, p. 181, Keitner Decl., 24 Ex. 35. A warning letter is active for one year. See People Manual § 2-5, Acceptable Conduct, p.
54, Keitner Decl., Ex. 32. A performance reminder is active for six months. See People Manual 25 § 2-50, Performance Improvement, p. 86, Keitner Decl., Ex. 33.
26 41 See People Manual Policy § 2-50, p. 86; Speroff 7/23 at 169:18-173:25, Keitner Decl., Ex. 26. 42 See Speroff 7/23 at 153:6-17, 171:24-173:21.
27 43 See People Manual Policy § 2-50, pp. 86-87.
28 44 Drogin Rpt. at ¶¶ 53-55, Tbl. 22 (22.49 standard deviations for African Americans and 4.38

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1 significant.45

2

Although the discipline policy provides certain examples of behavior that would

3 warrant a warning letter, those behaviors are not exhaustive, but simply illustrative.46 (Buchanan

4 at 149:22-151:11, Keitner Decl, Ex. 4.) Managers have wide discretion in deciding what

5 behavior should be disciplined and how severely it should be disciplined. For example, there are

6 no guidelines to restrict manager discretion in deciding whether to discipline an employee

7 informally, without creating a record, or through an online counseling, which can be considered

8 as part of the employee’s file for performance review and promotion purposes.47 Nor are there

9 guidelines that determine when an employee should receive verbal discipline versus a warning

10 letter. (See Speroff 7/23 at 115:4-119:25, Keitner Decl., Ex. 26.) Moreover, different managers

11 exercise this discretion differently, and the same managers exercise discretion differently from

12 case to case. (See, e.g., Perry at 119:22-128:22, Keitner Decl., Ex. 19.) Such arbitrary,

13 subjective, and discretionary decision- making is susceptible to the influence of racial stereotypes.

14 (See Bielby Rpt. at ¶¶ 22, 30, 32-33.) That is what happens at FedEx.

15

iv. FedEx’s Requirement of Manager Approval to Apply

for Promotion Is Arbitrary, Subjective, and

16

Discretionary, and Causes Under-promotion, As Does

Manager Discretion in Selections Among Candidates

17

“Approved” to Apply.

18

FedEx’s requirement that an employee’s current manager approve the employee’s

19 application for promotion provides yet another entry point for uncontrolled discretion in FedEx’s

20 promotion practices. This approval functions as the initial gateway to promotion: without it, an

21 employee’s application may not be forwarded to the hiring manager, and as a result the employee

22 standard deviations for Latinos).
23 45 Id. at Tbl. 5 (less than 1 chance in 1088 for African Americans and far less than 1 in 10,000 chance for Latinos). There is also substantial anecdotal evidence of Minorities receiving
24 disproportionately harsh and more frequent discipline. See Declarations of Mitchell McCoy at ¶¶ 11-12; Griffin at ¶ 12; Canela at ¶ 8.
25 46 See People Manual § 2-5; see Speroff 7/23 at 92:12-94:22, Keitner Decl., Ex. 26.
26 47 See Speroff 7/23 at 137:19-143:7; 153:6-17. Note that online counselings cannot be challenged by employees through the Guaranteed Fair Treatment (“GFT”) process, and there are no other
27 mechanisms for employees to dispute their fairness. See id. at 156:17-157:10. Nor does FedEx have mechanisms to ensure that managers apply online counselings consistently. See id. at
28 157:11-18.

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1 cannot be considered for the open position. (See Speroff 7/22 at 110:18-111:15, Keitner Decl.,

2 Ex. 25.)

3

While approval to apply is supposed to be granted if an employee meets the

4 minimum performance review and disciplinary record requirements to be eligible for promotion

5 (See id. at 53:19-55:7), in reality managers have complete discretion to approve or not approve an

6 employee’s application for any reason. For instance, a manager can disapprove an application

7 because he or she finds that the employee fails to meet the “minimum acceptable standards” in a

8 “significant area of performance,” even though the employee has no active disciplinary records

9 and is otherwise eligible fo r promotion. There are no guidelines for managers regarding what

10 constitutes such a “significant area of performance” or what the “minimum acceptable standards”

11 are. (See id. at 64:6-22, 70:15-20.) When pressed for an example, FedEx’s Managing Director of

12 Human Resources for AGFS stated that an employee might be disapproved if they had an

13 undetermined number of absences shy of the number that would instigate formal discipline; how

14 close to the limit they would have to be, he could not say. (See id. at 72:1-73:17.) Such vague

15 and subjective criteria are prone to influence by racial bias and stereotypes. (See Bielby Rpt. at

16 ¶¶ 36-37.)

17

Moreover, managers are not required to record their reasons for disapproving an

18 employee’s application (id. at 70:15-71:25, 74:8-13), nor does FedEx conduct any monitoring or

19 review of manager disapprovals for consistency or adverse impact, unless an employee files a 20 GFT.48

21

Given the ample discretion permitted to managers in making the approval

22 decision, the lack of minority representation in management ranks, and the company culture of

23 hostility to minorities, it comes as no surprise that statistical analysis shows that far more white

24 employees than Minorities are approved to apply for management positions despite having active

25

26 48 See id. at 100:18-102:18. Despite its virtually exclusive reliance on the employee-initiated 27 GFT process as a replacement for monitoring employment decisions, FedEx has no written
definition of what “Guaranteed Fair Treatment” actually means. See Dandridge at 29:8-30:22, 28 Keitner Decl. Ex. 7.

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1 discipline letters on file.49 Under FedEx policy, such letters should render an employee ineligible

2 for promotion, but this policy is selectively enforced, to the disadvantage of Minorities.

3

Excessive discretion similarly enters into FedEx’s procedures for awarding

4 promotions among approved applicants. FedEx’s written policy dictates that applicants for

5 promotion be divided into two priority groups according to their current job and full-time or part-

6 time status, and that those candidates in the second priority group may only be considered if there

7 is no one in the first priority group. (People Manual § 4-5.) FedEx policy further dictates that it

8 select for promotion the candidate with the highest Credit Equivalency Value or “CEV” score, a

9 rating calc ulated according to a formula that takes into account an employee’s time in station and

10 recent performance reviews. (Id.) Despite the system set forth in its policies, however, in

11 practice FedEx allows any hiring manager to pick any job applicant, regardless of CEV ranking

12 or priority group. (Williamson at 54:16-55:9, Keitner Decl., Ex. 29.) A hiring manager who

13 deviates from policy and picks lower ranked applicants is not required to obtain approval from

14 higher managers, and FedEx does not monitor or review compliance with these promotions

15 policies. (Speroff 7/22 at 72:11-16, Keitner Decl., Ex. 25; Williamson at 122:9-19, 123:11-19.)

16

This managerial discretion works to the disadvantage of Minorities. Statistical

17 analyses show that far more Minorities with higher priority or higher CEV scores are passed over 18 in favor of lower-ranked white employees than vice versa.50 Again, the presence of discretion

19 and lack of monitoring has adverse impact on Minorities. (See Bielby Rpt. at ¶¶ 36, 38-39.)

20

c. FedEx Discriminates Against Latinos with Respect to

Promotions from Hourly Positions to Operations Manager. 21

22

The Courier job is the stepping stone to the entry- level management job of

23 Operations Manager. (Drogin Rpt. at ¶ 21.) Although approximately 17% of Couriers are

24 Latino, only 8.5% of Operations Managers are Latino. A statistical analysis of promotions from

25 hourly positions to Operations Manager establishes a statistically significant under-promotion of

26 Latinos. (Id. at ¶ 32 (-4.06 standard deviations for 1999-2003).) This statistical disparity results

27 49 Drogin Rpt. at ¶ 39. 28 50 Drogin Rpt. at ¶¶ 41-42.

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1 from the highly discretionary system used to select Operations Managers, and the impact of race-

2 biased performance evaluation scores and discipline records on promotion decisions. (See Bielby

3 Rpt. at ¶¶ 9-42.)

4

i. FedEx Selects Managers Using a Highly Discretionary

Process Rife With Opportunities for Biased Decision-

5

Making.

6

Since 1998, FedEx has used the “ASPIRE” program to select first- line managers in

7 both AGFS and DGO. (Brooks at 19:17-25, Keitner Decl., Ex. 2.) This multi-step process,

8 developed primarily by FedEx in- house industrial psychologist David Brooks, allows hiring

9 managers to exercise a high level of discretion and creates multiple opportunities for racial

10 stereotypes to influence how managers rate candidates.

11

Aspiring managers must complete an “ASPIRE to Management” class as a pre-

12 requisite to entering the ASPIRE program. (Id. at 33:7-19.) An employee cannot attend these

13 classes without his or her manager’s permission. (Id. at 33:25-34:10.) Thus, an employee’s

14 current manager has effective veto power over whether or not that employee can even attempt to

15 apply for manager positions. In addition, an employee’s manager must sign off on the

16 employee’s successful completion of four development classes. (Id. at 36:1-37:18.) FedEx has

17 produced no evidence of studies conducted or steps taken to guard against adverse impact in this

18 enrollment process. (Id. at 40:3-13.)

19

The hiring manager selects the candidates for a panel interview. There are no

20 guidelines in place for determining how many candidates to interview; the only restriction is that 21 the manager cannot select a candidate with a lower score on the five initial components51 than 22 another candidate without also selecting the latter.52

23 51 The components of a candidate’s pre- interview “screening” score are: the Professional Employment Test (PET), a standardized cognitive ability test; the Peer Leadership Assessment
24 (PLA), completed by employees chosen by the candidate’s manager; a score for Position Specific Knowledge (PSK) and for Other Related Experience (ORE); and the Management Profile (MP).
25 52 The components have nominal weights on the ASPIRE score sheet. Brooks at 110:13-112:3; 26 see FedEx’s New Process for Selecting Mangers, p. 5, Keitner Decl., Ex. 46. However, FedEx
admits that the different standard deviations of the scores in these five areas lead to actual weights 27 that are, in fact, quite different. Brooks at 118:11-122:5. The PET, which has the greatest
adverse impact, id. at 121:20-122:5, also has the highest standard deviation, id. at 118:11-16, 28 giving it a disproportionately high actual weight in the current formula.

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1

The PLA’s utility in predicting success in management is purely conjectural:

2 FedEx has not produced evidence regarding the development of the items on the PLA form and

3 has not verified its measurement properties. (Brooks at 90:1-92:17; see PLA Forms, Keitner

4 Decl., Ex. 47.)

5

The PSK and ORE are similarly spurious. There is no requirement in the ASPIRE

6 process that anyone ever review the hiring manager’s determination of the PSK and ORE for a

7 particular opening. (Brooks at 50:25-52:3.) Candidates complete application forms without

8 knowing what PSK and ORE the hiring manager is seeking (Id. at 61:24-62:5); if a hiring

9 manager chooses to advise a particular candidate of these requirements or is already familiar with

10 a candidate’s experience, that candidate can enjoy a huge advantage in the application process.

11 Moreover, hiring managers are not trained on how to evaluate PSK and ORE. (Buchanan at

12 142:2-146:1, Keitner Decl., Ex. 4.) Together, PSK and ORE nominally make up almost 50% of

13 an ASPIRE candidate’s screening score. (Brooks at 60:16-61:17.) However, FedEx cannot claim

14 on the basis of its existing studies that the PSK and ORE scores are reliable or valid. (Id. at

15 107:19-109:9.)

16

The ASPIRE interview process is rife with opportunities for discrimination. First,

17 there is no mandatory calibration training to ensure reliability and consistency in interview scores.

18 (Buchanan at 105:9-108:24.) The hiring manager chooses who will sit on an interview panel

19 (Brooks at 69:17-70:2), and there is no requirement that an HR representative participate in the

20 interview process. (Id. at 77:16-78:14.) FedEx is aware that steps can be taken to reduce or avoid

21 adverse impact in interviews (Id. at 17:4-16), but it has not taken these steps.

22

FedEx has never studied the racial or ethnic composition of ASPIRE interview

23 panels (Id. at 71:20-25.) The hiring manager is supposed to select the highest-scoring candidate

24 (id. at 68:22-69:12), but FedEx has produced no evidence that this is how the process actually

25 works. FedEx has also disregarded its legal obligation to keep records on the adverse impact of

26 the ASPIRE process and has no system in place for doing so. (Id. at 107:13-18, 129:1-131:1,

27 137:14-143:5.) FedEx’s own study of ASPIRE in 1998 strongly suggests that ASPIRE has

28 adverse impact on both African-American and Hispanic applicants. (Id. at 104:22-107:12; see

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1 Validation of Assessments for the First-Level Manager Jobs at Federal Express, p. 25, Keitner

2 Decl., Ex. 48.) FedEx tracks packages all over the world, but it does not track adverse impact

3 against its own employees, as required by law.

4

FedEx has disregarded its legal obligation to monitor the adverse impact of

5 ASPIRE and to identify alternative selection procedures that afford equal opportunity to Minority

6 employees. In addition, FedEx’s own follow-up studies with respect to ASPIRE’s validity show

7 dwindling correlations between ASPIRE scores and job performance. (Brooks at 123:23-128:2;

8 ASPIRE Follow-Up Criterion Validation Report for 2003, Keitner Decl., Ex. 49.)

9

ii. FedEx’s Discriminatory Performance Evaluation and

Discipline Systems Block Minorities from Promotions

10

into Management.

11

In addition to the above hurdles, FedEx employees cannot apply for management

12 positions if they have an active warning letter on file. (Brooks at 23:6-24, Keitner Decl. Ex. 2.)

13 FedEx has done no studies to establish the consistency or reliability of its disciplinary processes,

14 or to determine whether such processes have adverse impact when used as selection criteria. (Id.

15 at 23:25-24:11.) Manager candidates must also meet minimum performance review

16 requirements, which also have not been validated. (Hater at 303:7-12, Keitner Decl., Ex. 12;

17 Brooks at 26:7-22.) In fact, as indicated above, FedEx’s own industrial psychologists doubt the

18 accuracy of FedEx’s performance reviews in evaluating job performance. The highly significant

19 adverse impact of discipline and performance evaluation at FedEx permeates the operations

20 manager selection process.

21

2. FedEx Discriminates Against Minority Employees and Lowe r Level

Managers with Respect to Compensation. 22

23

FedEx’s Minority employees and lower- level Managers are paid less than non-

24 Minority employees and lower- level Managers. They are paid less both by virtue of the fact that

25 they hold lower paid positions, and because even when they and comparable whites hold the same

26 positions, work in the same geographic locations, and have the same seniority, Minorities are paid

27 less. The disparities in compensation within job arise from the impact of FedEx’s race-biased

28 evaluation and discipline systems on compensation.

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1

The People Manual provides that compensation is determined by a formula tied

2 directly to performance evaluations (and indirectly to discipline, since discipline affects 3 performance evaluations).53 Thus, compensation is also part of the feedback loop through which

4 performance evaluation and discipline echo: because Minorities are overdisciplined, they get

5 lower performance evaluations; and because Minorities receive lower performance evaluation

6 scores, they receive lower compensation.

7

Each year an employee gets a percentage raise based on performance evaluation.

8 As a result, the effect of overdiscipline and lower evaluations of Minorities is cumulative. (See

9 Bielby Report at ¶ 15.) The gap grows each year.

10

Because of the impact of FedEx’s race-biased evaluation and discipline systems on

11 its compensation system, Minority employees and lower level managers at FedEx are paid less

12 than non-Minorities at both the hourly and salaried levels throughout the Western Region, even

13 when relevant non-discriminatory factors are considered. For example, the results of statistical

14 regressions on hourly pay rates for African American hourly employees show that African

15 Americans were paid significantly less per hour than white employees in every year, 1999-2004,

16 even after accounting for seniority, part time/full time status, casual/permanent status, job title,

17 and facility. The results are highly statistically significant for each year studied, ranging

18 from -8.38 standard deviations to -9.61 standard deviations. Drogin Rpt. at ¶ 59.) These

19 disparities are many times greater than the legal threshold of two standard deviations. (See

20 Hazelwood School Dist. v. United States, 433 U.S. at 311, n.17 (1977). The probability of such

21 disparities occurring by chance is approximately one chance in 100 billion.

22

Similarly, the results of statistical regressions on the hourly pay rates for Latino

23 hourly employees show that Latino hour ly employees were paid significantly less per hour than

24 white employees in every year, 1999-2004, even after controlling for job, seniority, status, and

25 geographic location. The results are highly statistically significant, ranging from -4.91 standard

26 deviations in 2002 to -7.07 standard deviations in 1999. (Drogin Rpt. at ¶ 60.) The probability of

27 53 See People Manual § 3-10, Merit Hourly Pay Administration, Tbl. 1, p. 112, Keitner Decl., 28 Ex. 34.

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1 such disparities occurring by chance ranges from approximately one chance in one million to a

2 less than one chance in one hundred million. (Id. at Tbl. 5.)

3

The story is similar with respect to pay disparities in the salaries of lower- level

4 Managers. The results of regressions on the monthly salaries of lower- level Managers show

5 statistically significant disparities adverse to African Americans in every year studied. The salary

6 disparities range from -2.4 standard deviations in 1999 to -3.5 standard deviations in 2001. (Id. at

7 ¶ 61.) The underpayment in monthly salary for African American lower- level managers ranged

8 from $83.78 per month in 1999 to $185.74 per month in 2004. (Id.)

9

G. FedEx’s Discrimination Is Uniform And Pervasive.

10

In sum, the statistical evidence, the documents, and the testimony all establish the

11 same thing: FedEx discriminates aga inst Minority Employees throughout the Western Region

12 with respect to promotions, compensation, performance evaluation, and discipline, and against

13 African American Lower-Level Managers throughout the Western Region with respect to

14 compensation, performance evaluation, and discipline. (See Drogin Rpt., passim, and Statement

15 of Facts, supra.)54

16 III. ARGUMENT

17

Class actions are an important tool for remedying employment discrimination.

18 See, e.g., Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 142 (N.D. Cal. 2004) (“This

19 anniversary [of the U.S. Supreme Court’s decision in Brown v. Board of Education] serves as a

20 reminder of the importance of the courts in addressing the denial of equal treatment under the law

21 wherever and by whomever it occurs.”). Since the requirements of Rules 23(a) and (b)(2) are

22 satisfied here, class certification is appropriate in this case.55

23 54 The map attached to the Declaration of Nirej S. Sekhon in Support of Plaintiffs’ Motion for 24 Class Certification as Ex. 1 shows that the plaintiffs in this case are not alone. Hundreds of
African Americans and Latinos throughout the Western region have complained of FedEx’s race 25 discrimination.
55 This Court is accorded broad discretion in determining whether class treatment is appropriate. 26 Dukes, 222 F.R.D. at 143; Armstrong v. Davis, 275 F.3d 849, 872, n.28 (9th Cir. 2001); see also
the California Supreme Court’s recent decision in Sav-On Drug Stores v. Superior Court, Opinion 27 No. S106718, Aug. 26, 2004 (affirming that “‘Any valid pertinent reason stated will be sufficient
to uphold the [class certification] order.’”). Although the Court is required to undertake a 28 “rigorous analysis” to determine whether the case satisfies the Rule 23 requirements, the Court

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1

A. This Case Meets The Requirements Of Rule 23(a).

2

1. The Classes Are Numerous.

3

Rule 23(a) requires that the class be so numerous that joinder of all class members

4 is impracticable. The precise number of class members need not be known prior to certification.

5 See Newberg on Class Actions § 3.05 at 233-35 (4th ed. 2002) (hereinafter, “Newberg”); see also

6 Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (“Courts have not required evidence of

7 exact class size or identity of class members to satisfy the numerosity requirement.”); Harriss v.

8 Pan Am. World Airways, Inc., 15 FEP Cases (BNA) 1640, 1652 (N.D. Cal. 1977).

9

Here, the Minority Employee Class has several thousand members. (See Drogin

10 Rpt. at ¶¶ 13-16.) The African American Lower-Level Manager Class has several hundred

11 members. (Id.) Such a number satisfies any standard of impracticability. See Newberg § 3.05 at

12 247 (“as few as 40 class members should raise a presumption that joinder is impracticable”).

13

2. The Classes Share Common Questions of Fact and Law.

14

The commonality requirement of Rule 23(a) examines the group characteristics of

15 the class as a whole and seeks to determine whether the class shares common questions of fact or

16 law. The commonality requirement should be “construed permissively.” Hanlon v. Chrysler

17 Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). Not all questions of law or fact need to be common;

18 rather, the test applied is qualitative, not quantitative, and requires only one significant common 19 issue to warrant certification. Savino v. Computer Credit, Inc., 172 F.R.D. 346, 352 (E.D.N.Y. 20 1997), aff’d, 164 F.3d 81 (2d Cir. 1998). Only a “minimal” showing of commonality is required; 21 where class members share a common legal issue but not common facts, or vice versa, 22 commonality is satisfied. Hanlon, supra, 150 F.3d at 1020. This case involves numerous

23 common issues of both fact and law. Plaintiffs raise “a common legal issue, discrimination 24 against [Minorities], and a common factual problem, discrimination as applied” by FedEx. 25 Bouman v. Block, 940 F.2d 1211, 1232 (9th Cir.), cert. denied, 502 U.S. 1005 (1991).

26
27 may not engage in an assessment of the merits at this stage. General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982); Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 177 (1974); Caridad v. Metro-
28 North Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999), cert. denied, 529 U.S. 1107 (2000).

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1

FedEx’s policies regarding promotion, compensation, discipline, and performance

2 evaluation are all governed by the “People Manual,” which applies throughout the Western 3 Region. 56 The forms and procedures used for personnel decisions are the same throughout the 4 Western Region. 57 The race-biased BST is used throughout the Western Region. Promotion

5 decisions are based on race-biased performance evaluations and discipline records throughout the

6 Western Region. Compensation decisions are tied to race-biased performance evaluations and

7 discipline records throughout the Western Region. Statistical analyses establish that FedEx’s

8 policies and practices have an adverse impact on Minorities throughout the Western Region with

9 respect to compensation, promotion, performance evaluation, and discipline.

10

Common questions of fact include the following: (1) whether the FedEx work

11 force is segregated by race with respect to job categories; (2) whether FedEx’s promotions,

12 compensation, discipline and evaluation policies and practices in the Western Region are

13 arbitrary, subjective, and discretionary and thus susceptible to discriminatory application by

14 predominantly non-Minority managers; (3) whether FedEx denies Minorities equal promotional

15 opportunities; (4) whether FedEx’s compensation system has an adverse impact on Minorities;

16 (5) whether FedEx’s performance evaluations are race-biased; (6) whether FedEx’s discipline

17 system is applied unfairly to Minority employees and African American Operations Managers;

18 (7) whether the Basic Skills Test has been properly validated; (8) whether performance reviews of

19 Minority employees are based on subjective criteria that admit racial stereotyping and bias; and

20 (9) whether FedEx’s adverse treatment of Minorities is intentional.

21

The class claims will also raise common legal issues, including: (1) whether

22 FedEx’s under-compensation, under-promotion, and overdiscipline of Minorities constitutes

23 adverse impact in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the

24 California Fair Employment and Housing Act (“Cal. FEHA”); (2) whether FedEx’s conduct

25 constitutes adverse treatment in violation of Title VII, § 1981, and Cal. FEHA; (3) whether

26 56 See., e.g., Buchanan at 20:25-21:5, Keitner Decl., Ex. 4; Presnoples at 11:24-12:11, Keitner Decl., Ex. 21.
27 57 See, e.g., McQueen at 92:6-93:16, Keitner Decl., Ex. 17; Garcia at 9:1-8, Keitner Decl., Ex. 10; 28 Fifer at 13:3-14:14, Keitner Decl., Ex. 9; Speroff 7/22 at 22:7-23:16, Keitner Decl., Ex. 25.

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1 FedEx’s conduct can be justified as a “business necessity,” or can be replaced by a less

2 discriminatory alternative, see Stender v. Lucky Stores, 803 F.Supp. 259, 319-23, 331-36 (N.D.

3 Cal. 1992); and (4) what injunctive relief is appropriate to remedy FedEx’s discriminatory

4 practices.

5

a. The Employment Policies and Practices of FedEx’s Western

Region are Uniform and Uniformly Arbitrary, Subjective, and

6

Discriminatory.

7

Common questions of fact arise in this case because the personnel policies and

8 structure of FedEx’s Western Region are uniform and centralized. (See Bielby Rpt. at ¶¶ 8-14.)

9 The facilities in which employees work are virtually identical. The departments, jobs, and

10 management structure are the same in all facilities and all districts across the region. Promotion,

11 evaluation, discipline, and compensation of employees all follow uniform policies and procedures

12 and require use of uniform personnel forms. Common facts such as these support class

13 certification. See Dukes, 222 F.R.D. at 145-49; Adams v. Pinole Point Steel Co., 65 FEP Cases

14 (BNA) 774 (N.D. Cal. 1994); Thornberry v. Delta Air Lines, 30 FEP Cases (BNA) 520, 524

15 (N.D. Cal. 1978); Reeb v. Ohio Dept. Rehab., 221 F.R.D. 464, 477 (S.D. Ohio 2004).

16

In addition, the uniform policies and procedures uniformly allow arbitrary,

17 subjective, discretionary, and biased decision- making. Non-Minority managers make evaluation

18 and disciplinary decisions based on arbitrary, subjective, and discretionary criteria that give free

19 reign to racial stereotypes and biases. (See Bielby Rpt. at ¶¶ 8, 15-42.) FedEx’s lack of controls

20 and absence of monitoring to ensure Equal Employment Opportunity is uniform throughout the

21 Western Region. (Id. at ¶¶ 25-35.) This type of uncontrolled and unmonitored discretionary

22 decision- making raises common questions of fact and is a well-recognized basis for class

23 certification. Falcon, 457 U.S. at 159 n.15; Caridad, 191 F.3d at 291-92; Dukes, 222 F.R.D. at

24 149; Butler v. Home Depot, 1996 WL 421436 (N.D. Cal.) at *3; Adams, 65 FEP Cases at 781;

25 Barefield v. Chevron U.S.A., Inc., 44 FEP Cases (BNA) 1885, 1888-90 (N.D. Cal. 1987).

26

b. Consistent Patterns of Under-Promotion, Under-Compensation,

and Overdiscipline Raise Common Questions of Law and Fact. 27

28

Common issues of fact also arise out of plaintiffs’ showing of region-wide patterns

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1 of under-promotion, under-compensation, and overdiscipline. These consistent patterns raise

2 common factual issues with respect to the significance of the statistical evidence, and FedEx’s

3 promotional standards and job assignment patterns. They also raise common legal issues as to the

4 inference of discrimination that may be drawn from the existence of such segregation. Bazemore

5 v. Friday, 478 U.S. 385, 400-04 (1985); Hazelwood School Dist. V. United States, 433 U.S. 299,

6 307-13 (1977); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339-40

7 (1977); Dukes, 222 F.R.D. at 154-60; Butler v. Home Depot, Inc., 1997 WL 605754 at *6 (N.D.

8 Cal. 1997); EEOC v. General Tel. Co., 885 F.2d 575, 579-82 (9th Cir. 1989), cert. denied, 498

9 U.S. 950 (1990).

10

c. Plaintiffs’ Disparate Impact and Disparate Treatment Theories

Raise Common Issues of Fact and Law. 11

12

Plaintiffs have alleged both disparate impact and disparate treatment theories.

13 Under both theories, numerous common issues of fact and law underlie the discrimination claims

14 of the class as a whole.

15

In proving their case, Plaintiffs will present statistical data and anecdotal evidence

16 that brings “the cold numbers convincingly to life,” International Brotherhood of Teamsters v.

17 United States, 431 U.S. 324, at 339, expert testimony from expert sociologists and industrial

18 organization psychologists, and testimony and documents regarding FedEx’s policies and

19 practices. The evidence on which Plaintiffs will rely is common to the classes as a whole. The

20 inferences drawn from Plaintiffs’ statistical proof and anecdotal evidence will be common to the

21 claims of all class members and will raise common legal issues. Butler, 1996 WL 421436 at *3;

22 Wagner v. Taylor, 836 F.2d 578, 592-93 (D.C. Cir. 1987); Penk v. Oregon Bd. of Higher Educ.,

23 816 F.2d 458, 463-64 (9th Cir. 1987), cert denied, 484 U.S. 853 (1987); Wofford v. Safeway

24 Stores, Inc., 78 F.R.D. 460, 481 (N.D. Cal. 1978).

25

Litigation of defendant’s “business necessity” defense will also give rise to

26 common issues. See Stender, 803 F.Supp. at 321-22. Once Plaintiffs have established the

27 disparate impact of an employment practice such as use of the BST in promotions decisions, use

28 of performance evaluations in promotions and compensation decisions, or the use of discipline

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1 records in promotions and compensation decisions, the burden of proof shifts to the defendant to

2 show that the challenged practice, despite its disparate impact, “bear[s] a demonstrable

3 relationship to successful performance of the jobs for which it was used.” Griggs v. Duke Power

4 Co., 401 U.S. 424, 431 (1971). The defendant must show that the employment practice is

5 “predictive of or significantly correlated with important elements of work behavior which

6 comprise or are relevant to the job or jobs for which candidates are being evaluated.” Albemarle

7 Paper Co. v. Moody, 422 U.S. 405, 431 (1975). Under Title VII, the demonstration of “some

8 rational basis for the challenged practices” is not enough. Washington v. Davis, 426 U.S. 229,

9 246-47 (1976). “It is necessary, in addition, that they be ‘validated’ in terms of job

10 performance.” Id. at 247 (emphasis added).

11

Even if FedEx were able to satisfy its burden with respect to job-relatedness and

12 business necessity of employment practices with disparate impact, plaintiffs will be able to

13 demonstrate the existence of alternative employment practices with less disparate impact within

14 the meaning of Title VII. 42 U.S.C. § 2000e-2(k)(1)(A)(ii); Albemarle at 425. The evidence and

15 arguments about less discriminatory alternatives raise common factual and legal issues.

16

3. The Named Plaintiffs’ Claims Are Typical.

17

The typicality necessary to satisfy class certification is that the named plaintiffs

18 “possess the same interest and suffer the same injury as the class members.” Falcon, 457 U.S. at

19 156. Typicality is satisfied when the claims of the class representatives and those of the class

20 arise out of the same legal or remedial theory and when representative parties advance the

21 interests of the class members by advancing their own self- interest. Barefield, 44 FEP Cases at

22 1890. “Typicality” exists if the claims of the named plaintiffs are “reasonably coextensive” with

23 those of absent class members; there is no requirement that their claims be identical. Hanlon v.

24 Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Nor is it necessary that every named

25 plaintiff have suffered every form of discrimination challenged by the case. Rather, plaintiffs

26 need only show that in the aggregate, they cover the waterfront of abuses alleged. Staton v.

27 Boeing, 313 F.3d 447, 466 (9th Cir. 2002). Courts recognize that typicality overlaps with

28 commonality, and thus much of the discussion regarding that requirement is germane to typ icality

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1 also. See Barefield, 44 FEP Cases at 1890; Harriss, 15 FEP Cases at 1649.

2

The eight proposed class representatives are members of the classes they seek to

3 represent. They allege that they, and class members, were discriminated against in connection

4 with denial of promotional opportunities (as to the hourly employee class), adverse treatment with

5 respect to compensation, and unfair and harsh discipline. (Consolidated Amended Complaint

6 ¶¶ 58-162.) The eighteen class member declarants claim that they were the victims of the same

7 discriminatory practices by FedEx managers at facilities throughout the Western Region. The

8 claims asserted by plaintiffs individually involve the same discriminatory employment practices 9 with respect to evaluation, 58 promotion, 59 compensation, 60 and discipline61 complained of by and

10 on behalf of class members. Accordingly, the typicality requirement is satisfied. Butler at *3.

11

The declarations, charges of discrimination filed with state and federal agencies,

12 and internal complaints of discrimination of class members,62 and deposition testimony of the

13 class plaintiffs evidence a systematic pattern and practice of discrimination against Minority

14 Employees in FedEx’s Western Region in connection with employment decisions, and

15 demonstrate that the experiences of the class representatives are typical. Both the named

16 plaintiffs and the class members have a common interest in seeking an injunction to change the

17 unlawful aspects of FedEx’s personnel system.

18

4. The Proposed Class Representatives and Class Counsel Are Adequate.

19

Rule 23(a)(4) sets forth the adequacy requirement for class certification. It is

20 comprised of two elements: (1) the representative party’s attorney must be qualified, experienced,

21 and generally able to conduct the litigation; and (2) the interests of the plaintiffs must not be

22
23 58 Class member declarants who have experienced discrimination in performance evaluations include: McCray at ¶ 13; Akins at ¶ 8.
24 59 Class member declarants who have experienced discrimination in promotion include: Patterson at ¶ 12); Steel at ¶¶ 12-15); Hoilland at ¶ 15; Latin at ¶ 12.
25 60 Class member declarants who have experienced discrimination in compensation include: 26 Olmos at ¶¶ 5-6; McCray at ¶ 9; Foreman at ¶ 9.
61 Class member declarants who have experienced discrimination in discipline include: Mitchell 27 McCoy at ¶¶ 11-12; Griffin at ¶ 12; Canela at ¶ 8.
28 62 See Sekhon Decl., Ex. 1.

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1 antagonistic of those of the class. In re United Energy Corp. Solar Power Modules Tax Shelter

2 Investors Sec. Litig., 122 F.R.D. 251, 257 (C.D. Cal. 1985); see also Lerwill v. Inflight Motion

3 Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978); Harriss, 15 FEP Cases at 1649.

4

Both elements of the adequacy requireme nt are satisfied here. Plaintiffs have

5 retained counsel with the requisite expertise and resources to pursue this case. See Declarations

6 of James M. Finberg, Guy Wallace, John L. Burris, Michael S. Davis, Waukeen Q. McCoy, and

7 Kay McKenzie Parker. In addition, both the class and the named plaintiffs share an interest in

8 eradicating discrimination in FedEx’s Western Region against its African-American and Latino

9 employees.

10

B. The Liability Phase of this Case and the Remedial Phase for Declaratory,

Injunctive and Equitable Relief Should be Certified Under Rule 23(b)(2). 11

Rule 23(b)(2) was added to class action procedure specifically to reach cases of

12

this type, i.e., to “facilitate the vindication of civil rights through the class action device.”

13

Barefield v. Chevron U.S.A., Inc., 48 FEP Cases (BNA) 907 (N.D. Cal. 1988). See Amchem

14

Prods. v. Windsor, 521 U.S. 591, 614 (1997) (“Civil rights cases against parties charged with

15

unlawful class-based discrimination are prime examples” of cases where Rule 23(b)(2)

16

certification is appropriate.); Advisory Committee Note to Rule 23(b)(2) (“Illustrative [of cases

17

properly certified under Rule 23(b)(2)] are various actions in the civil rights field”). Certification

18

under Rule 23(b)(2) is appropriate where, as here, meaningful declaratory and injunctive relief is

19

sought. Fed. R. Civ. P. 23(b)(2); Molski v. Gleich, 318 F.3d 937, 949-50 (9th Cir. 2003);

20

Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 163-64 (2d Cir. 2001).

21

Plaintiffs seek declaratory and injunctive relief that would apply to and benefit the

22

class as a whole. The injunctive relief plaintiffs seek includes orders, among other things:

23

(1) permitting “casual” employees to apply for, and view the posting of, jobs on the Job Change

24

Application Tracking System; (2) eliminating passage of the BST as a requirement for

25

promotions into Courier and Ramp Transport Driver positions, and instead focus on the training

26

for those positions; (3) modifying the performance evaluation criteria and monitoring

27

performance evaluations to ensure that they are reliable and consistent and have no adverse

28

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1 impact; and (4) modifying the discipline criteria, and monitoring the discipline system, to ensure

2 that discipline is applied consistently.

3

In addition, plaintiffs seek forms of equitable monetary relief available under

4 Rule 23(b)(2), including back pay and front pay. Gotthardt v. Nat’l R.R. Passenger Corp., 191

5 F.3d 1148, 1152-55 (9th Cir. 1999). Such monetary equitable relief does not defeat class

6 treatment under Rule 23(b)(2). See, e.g., Probe v. State Teachers’ Ret. Sys., 780 F.2d 776 (9th

7 Cir. 1986); Salinas Roadway Express, 735 F.2d 1574, 1576 (5th Cir. 1984); Butler, 1997 WL

8 605754 at *5; see also 42 U.S. C. § 2000e-5(g) (1994).

9

In Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003), the Ninth Circuit held that

10 (b)(2) class actions can include claims for monetary damages as long as such damages are not the

11 predominant relief sought. In making this determination, it is not the potential size of the

12 damages award that is at issue; rather, courts are directed to examine the “specific facts and

13 circumstances of each case,” and attempt to ascertain the “intent of the plaintiffs in bringing suit.”

14 Id. at 947, 950. In Molski, the court found the injunctive relief sought by the class plaintiffs to

15 be the primary relief at issue. Id. at 950.

16

Here, the evidence shows that plaintiffs’ primary focus is obtaining effective

17 injunctive relief to end discrimination and engender positive change.63 This change would be

18 significant. The Class Representatives hope to transform the promotion, compensation,

19 evaluation and discipline systems at FedEx so that instead of hindering equal employment

20 opportunity, they ensure it. Although punitive damages and compensatory damages are sought in

21 this case, they are not the primary relief sought. Accordingly, the liability phase and a remedial

22 phase for declaratory, injunctive and equitable relief should be certified under Rule 23(b)(2).

23 After those phases, the Court can determine whether to certify a phase regarding compensatory

24 damages, and the amount and allocation of punitive damages, under Rule 23(b)(3), with notice

25 and an opportunity to opt out. Butler, supra, 1997 WL 605754 at *5-6.

26

27 63 See Declarations of: Kalini Boykin at ¶ 2; Derrick Satchell at ¶ 2; Valerie Brown at ¶ 2; Rick 28 Gonzales at ¶ 2; Rachel Hutchins at ¶ 2; Kelvin Smith, Sr. at ¶ 2; and Ken Stevenson at ¶ 2.

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1 James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452)
2 Karin A. Kramer (SBN 87346) Lexi J. Hazam (SBN 224457)
3 Chimène I. Keitner (SBN 226948) Nirej S. Sekhon (SBN 213358)
4 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
5 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
6 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
7 Todd M. Schneider (SBN 158253)
8 Guy B. Wallace (SBN 176151) Joshua Konecky (SBN 182897)
9 SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000
10 San Francisco, CA 94104 Telephone: (415) 421-7100
11 Facsimile: (415) 421-7105
12 Waukeen Q. McCoy (SBN 168228) LAW OFFICES OF WAUKEEN Q. McCOY
13 703 Market Street, Suite 1407 San Francisco, CA 94103
14 Telephone: (415) 675-7705 Facsimile: (415) 675-2530
15
16 Attorneys for Plaintiffs and the Proposed Classes

John L. Burris (SBN 69888) Miles Washington (SBN 88288) LAW OFFICES OF JOHN L. BURRIS 7677 Oakport Bldg., Suite 1120 Oakland, CA 94612 Telephone: (510) 839-5210 Facsimile: (510) 839-3882
MICHAEL S. DAVIS (SBN 160045) 345 Hill Street San Francisco, CA 94109 Telephone: (415) 282-4315 Facsimile: (415) 358-5576
KAY MCKENZIE PARKER (SBN 143140) 1318 East Shaw Avenue, Suite 415 Fresno, CA 93710 Telephone: (559) 222-1509 Facsimile: (559) 222-9045

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

20 DERRICK SATCHELL, KALINI BOYKIN, VALERIE BROWN, RICK
21 GONZALES, CYNTHIA GUERRERO, RACHEL HUTCHINS, KELVIN SMITH,
22 SR., and KEN STEVENSON, on behalf of themselves and all others similarly situated,
23
Plaintiffs, 24
v. 25
FEDEX EXPRESS, a Delaware 26 corporation,

27

Defendant.

28

Case No. C 03-2659 SI; C 03-2878 SI
CLASS ACTION
DECLARATIONS OF PROPOSED CLASS COUNSEL IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Date: January 14, 2005 Time: 9:00 a.m. Courtroom of the Honorable Susan Illston

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1 PROPOSED CLASS COUNSEL DECLARATIONS

2

Tab No.

3 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP....................................................... 1
4
5 JOHN L. BURRIS ................................................................................................................... 2

6 MICHAEL S. DAVIS .............................................................................................................. 3

7 WAUKEEN Q. MCCOY......................................................................................................... 4
8 KAY MCKENZIE PARKER .................................................................................................. 5
9 SCHNEIDER & WALLACE .................................................................................................. 6
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 [Names and Addresses of Counsel Appear on Signature Page]
2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11 DERRICK SATCHELL, KALINI BOYKIN, VALERIE BROWN, RICK
12 GONZALES, CYNTHIA GUERRERO, RACHEL HUTCHINS, TYRONE
13 MERRITT, KELVIN SMITH, SR., and KEN STEVENSON, on behalf of
14 themselves and all others similarly situated,

15

Plaintiffs,

16 v.

17 FEDEX EXPRESS, a Delaware corporation,
18
Defendant. 19

Case No. C 03-2659 SI; C 03-2878 SI
CLASS ACTION
SECOND CONSOLIDATED AMENDED COMPLAINT FOR VIOLATIONS OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964; 42 U.S.C. § 1981; CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT
JURY TRIAL DEMANDED

20

21

22

23

24

25

26

27

28
477941.1

SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 2 of 52

1

INTRODUCTION

2

Individual and representative Plaintiffs Derrick Satchell (“Satchell”), Kalini

3 Boykin (“Boykin”), Valerie Brown (“Brown”), Rick Gonzales (“Gonzales”), Cynthia Guerrero

4 (“Guerrero”), Rachel Hutchins (“Hutchins”), Tyrone Merritt (“Merritt”), Kelvin Smith, Sr.

5 (“Smith”), and Ken Stevenson (“Stevenson”) (collectively “Plaintiffs”), on behalf of themselves

6 and all others similarly situated, allege as follows:

7

PRELIMINARY STATEMENT

8

1. This race discrimination class action is brought on behalf of two classes of

9 African American and Latino (“Minority”) employees of defendant FedEx Express. One class

10 consists of all African-American and Latino Handlers, Freight Handlers, Material Handlers,

11 Checker/Sorters, Customer Service Agents, Couriers, Swing Drivers, Ramp Transport Drivers,

12 Ramp Area Drivers, Shuttle Drivers, Dangerous Goods Agents, Information Agents, Operations

13 Agents, Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives,

14 Input Auditors, Team Leaders, and Dispatchers working in FedEx’s Western Region, which

15 includes the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada,

16 New Mexico, Oregon, part of Texas, Utah, Washington, and Wyoming, during the period

17 October 17, 1999 through the date of judgment in this action (“Minority Employee Class”). The

18 second class consists of all African-American Operations Managers in FedEx’s Western Region,

19 which includes the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana,

20 Nevada, New Mexico, Oregon, part of Texas, Utah, Washington, and Wyoming, during the

21 period October 17, 1999 through the date of judgment in this action (“African American Lower-

22 Level Manager Class”).

23

2. Representative Plaintiffs Brown, Gonzales, Guerrero, Hutchins, Merritt,

24 Smith, and Stevenson allege on behalf of themselves and the Minority Employee Class that

25 FedEx Express engages in a continuing policy and practice of racial discrimination through the

26 use of subjective and arbitrary decision making against its African American and Latino hourly

27 employees in the Western Region by (1) disproportionately assigning Minority Employees to

28 part-time and casual positions, instead of to the full-time and permanent hourly positions to which

477941.1

SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 3 of 52

1 similarly situated non-Minority employees are sometimes initially assigned; (2) providing

2 Minority Employees with fewer promotions to full-time and permanent hour ly positions than

3 provided to similarly situated non-Minority employees; (3) providing Minority Employees with

4 fewer promotions to management positions than provided to similarly situated non-Minority

5 employees; (4) providing Minority Employees with less compensation, including less pay for the

6 same work and less overtime, than provided to similarly situated non-Minority employees; and

7 (5) disciplining Minority Employees for petty matters and/or for infractions unsupported or

8 contradicted by credible evidence, for which similarly situated non-Minority employees are not

9 disciplined or are disciplined less harshly.

10

3. Representative Plaintiffs Derrick Satchell and Kalini Boykin allege on

11 behalf of themselves and the class of African American Lower-Level Managers that FedEx

12 Express engages in a continuing policy and practice of racial discrimination through the use of

13 subjective and arbitrary decision- making against its African American Operations Managers and

14 other managers below the level of Senior Manager (“African American Lower-Level Managers”)

15 in the Western Region by (1) providing African American Lower-Level Managers with fewer

16 promotions to higher management grade levels and/or senior management positions than provided

17 to similarly situated non-Minority managers; (2) providing African American Lower-Level

18 Managers with less compensation, including less pay for the same work, than provided to

19 similarly situated non-Minority managers; and (3) disciplining African American Lower-Level

20 Managers for petty matters and/or for infractions unsupported or contradicted by credible

21 evidence, for which similarly situated non-Minority managers are not disciplined or are

22 disciplined less harshly.

23

4. This action seeks an end to these discriminatory practices, and seeks

24 declaratory and injunctive relief, including rightful place relief, back pay, front pay, and

25 compensatory and punitive damages for the individual Plaintiffs and members of the two classes.

26

JURISDICTION AND VENUE

27

5. This Court has jurisdiction over this action under 28 U.S.C. § 1331 and

28 42 U.S.C. §§ 2000e-5(f)(3) and 42 U.S.C. § 1981. The action presents federal questions under

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 4 of 52

1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended, and 42 U.S.C.

2 § 1981. Pursuant to 28 U.S.C. § 1367, this Court has supplemental jurisdiction over plaintiffs’

3 claims under the California Fair Employment and Housing Act, Cal. Gov’t Code §§ 12940, et

4 seq.

5

6. Venue is proper in this district pursuant to 42 U.S.C. § 2000e5(f) and

6 28 U.S.C. § 1391 (b) & (c). All the named Plaintiffs’ claims, except for those of Plaintiff Merritt,

7 arose in California, and many of the acts complained of herein occurred in this District and gave

8 rise to the claims alleged. Defendant operates over 100 facilities in California and employs

9 thousands of workers in the State of California. Defendant operates at least 10 facilities in the

10 Northern District of California.

11

THE PARTIES

12

7. Plaintiff Derrick Satchell is an African American formerly employed by

13 Defendant FedEx Express as a Courier Operations Manager at its distribution facility located at

14 335 Brokaw Road, Santa Clara, California (the “Santa Clara Facility”). Plaintiff Satchell was

15 employed by Defendant from approximately June 1992 until April 16, 2002. Plaintiff Satchell is

16 a resident of Tracy, California.

17

8. Plaintiff Kalini Boykin is an African American currently employed by

18 Defendant as a Ramp Transport Driver (“RTD”) Operations Manager, most recently at its

19 operations facility located at 1254 Davis Street, San Leandro, California (the “San Leandro

20 Facility”). Plaintiff Boykin has been employed by Defendant in several capacities since

21 approximately May 1995. Plaintiff Boykin is a resident of Sacramento, California.

22

9. Plaintiff Valerie Brown is an African American currently employed by

23 Defendant as a part-time Customer Service Agent at 935 Performance Dr., Stockton, California

24 (the “Stockton Facility”). Plaintiff Brown has been employed by defendant FedEx Express at

25 several of its facilities and in several capacities since approximately 1982. Plaintiff Brown is a

26 resident of Tracy, California.

27

10. Plaintiff Rick Gonzales is a Latino formerly employed by Defendant

28 FedEx Express as a Courier at Defendant’s facility located at 9339 Ann Street, Santa Fe Springs,

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 5 of 52

1 California (the “Santa Fe Springs Facility”). Plaintiff Gonzales was employed by Defendant from

2 approximately May 1988 until September 2002. Plaintiff Gonzales is a resident of Temecula,

3 California. Plaintiffs are informed and believe, and thereon allege, that Plaintiff is eligible for

4 rehire.

5

11. Plaintiff Cynthia Guerrero is a Latina formerly employed by Defendant

6 FedEx Express as a Courier at Defendant’s Santa Fe Springs Facility. Plaintiff Guerrero was

7 employed by Defendant from approximately 1995 to July 2004. Plaintiff Guerrero currently

8 resides in Topeka, Kansas. Plaintiffs are informed and believe, and thereon allege, that Plaintiff

9 is eligible for rehire.

10

12. Plaintiff Rachel Hutchins is an African American formerly employed by

11 Defendant FedEx Express as a part-time, casual Handler at Defendant’s facility located at 2103

12 Airport Drive, Bakersfield, California (the “Bakersfield Facility”). Plaintiff Hutchins was

13 employed by Defendant from approximately December 1995 through April 1996, and from

14 March 2001 through January 2004. Plaintiff Hutchins is a resident of Bakersfield, California.

15 Plaintiffs are informed and believe, and thereon allege, that Plaintiff is eligible for rehire.

16

13. Plaintiff Tyrone Merritt is an African American currently employed by

17 Defendant FedEx Express as a Field Facility Management Specialist, domiciled at Defendant ’s

18 facility in New Orleans, Louisiana. From the fall of 2001 to July 2005, he worked as a permanent

19 part-time Handler at Defendant’s facility located at 3002 E. Old Tower Rd., Phoenix, Arizona

20 (the “Phoenix Facility”). Plaintiff Merritt has been employed by Defendant since approximately

21 September 1998. Plaintiff Merritt is currently a resident of Memphis, Tennessee, where he is

22 attending training.

23

14. Plaintiff Kelvin Smith is an African American forme rly employed by

24 Defendant FedEx Express as a part-time Lead Handler at Defendant’s Santa Clara Facility.

25 Plaintiff Smith was employed by Defendant from approximately November 1989 to July 2002.

26 Plaintiff Smith is a resident of Apple Valley, California.

27

15. Plaintiff Ken Stevenson is an African American currently employed by

28 Defendant FedEx Express as an Operations Manager at Defendant’s facility located at 201 W.

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 6 of 52

1 Manville St., Compton, California (the “Compton Facility”). Plaintiff Stevenson has been

2 employed by Defendant in various positions since approximately May 1997. Plaintiff Stevenson

3 is a resident of Long Beach, California.

4

16. Defendant FedEx Express is, and at all times mentioned herein was, a

5 Delaware corporation operating express mail and package delivery and freight delivery services

6 in the San Francisco Bay Area, as well as throughout the State of California and the United

7 States. FedEx Express operates facilities, among other places, in Bakersfield, Emeryville,

8 Milpitas, Oakland, San Francisco, San Jose, San Leandro, Santa Clara, Santa Fe Springs, and

9 Sunnyvale, California.

10

CLASS ALLEGATIONS

11

17. The Representative Plaintiffs bring this class action pursuant to Fed. R.

12 Civ. P. 23(a), (b)(2), and (b)(3), on behalf of: (1) a “Minority Employee Class” comprising all

13 African-American and Latino Handlers, Freight Handlers, Material Handlers, Checker/Sorters,

14 Customer Service Agents, Couriers, Swing Drivers, Ramp Transport Drivers, Ramp Area

15 Drivers, Shuttle Drivers, Dangerous Goods Agents, Information Agent s, Operations Agents,

16 Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Input

17 Auditors, Team Leaders, and Dispatchers working in FedEx’s Western Region, which includes

18 the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New

19 Mexico, Oregon, part of Texas, Utah, Washington, and Wyoming, during the period October 17,

20 1999 through the date of judgment in this action; and (2) an “African American Lower-Level

21 Manager Class” comprising all African-American Operations Managers in FedEx’s Western

22 Region, which includes the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho,

23 Montana, Nevada, New Mexico, Oregon, part of Texas, Utah, Washington, and Wyoming, during

24 the period October 17, 1999 through the date of judgment in this action.

25

A. Employee Class

26

18. Plaintiffs Brown, Gonzales, Guerrero, Hutchins, Merritt, Smith, and

27 Stevenson are members of, and seek to represent, the Minority Employees Class.

28
477941.1

19. The members of the Minority Employee Class identified herein are so

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 7 of 52

1 numerous that joinder of all members is impracticable. By the end of 2003, FedEx Express had

2 many tens of thousands of employees. Although the precise number of Minority Employees

3 affected by the discriminatory practices alleged herein is currently unknown, it is far greater than

4 can be feasibly addressed through joinder. The precise number is ascertainable from Defendant ’s

5 records.

6

20. There are many questions of law and fact common to the Minority

7 Employee Class, and these questions predominate over any questions affecting only individual

8 members. Common questions of fact or law include, among others: (1) whether FedEx Express’

9 policies or practices have a disparate impact on Minority Employees with respect to (a) initial job

10 assignment, (b) compensation, (c) promotion, and (d) discipline; (2) whether any disparate impact

11 is justified by business necessity; (3) whether the disparate impact constitutes a violation of

12 Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.; (4) whether FedEx Express has

13 intentionally discriminated against Minority Employees with respect to (a) initial job assignment,

14 (b) compensation, (c) promotion, and (d) discipline; (5) whether FedEx Express has engaged in a

15 pattern and practice of disparate treatment adverse to Minority Employees; (6) whether that

16 disparate treatment violates Title VII of the 1964 Civil Rights Act; (7) whether defendant’s

17 intentional discrimination against Minority Employees violates 42 U.S.C. § 1981; (8) whether

18 FedEx Express’ policies or practices violate Section 12940, et seq., of the California Government

19 Code, known as the Fair Employment and Housing Act (“FEHA”), as to Minority Employees

20 who have been employed or reside in California; and (9) whether injunctive relief and other

21 equitable remedies (including back pay and front pay) and compensatory and punitive damages

22 are warranted for the Minority Employee Class.

23

21. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2)

24 because FedEx Express has acted and/or refused to act on grounds generally applicable to the

25 Minority Employee Class, making appropriate declaratory and injunctive relief with respect to

26 Plaintiffs Brown, Gonzales, Guerrero, Hutchins, Merritt, Smith, and Stevenson and the Minority

27 Employee Class as a whole. The members of the Minority Employee Class are entitled to

28 injunctive relief to end FedEx Express’ common, uniform, and unfair racially discriminatory

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 8 of 52

1 personnel policies and practices.

2

22. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3)

3 because common questions of fact and law predominate over any questions affecting only

4 individual members of the Minority Employee Class, and because a class action is superior to

5 other available methods for the fair and efficient adjudication of this litigation. The members of

6 Minority Employee Class have been damaged and are entitled to recovery as a result of FedEx

7 Express’ common, uniform, and unfair racially discriminatory personnel policies and practices.

8 FedEx Express has computerized payroll and personnel data that will make calculation of

9 damages for specific members of the Minority Employee Class relatively simple.

10

B. African American Lower-Level Manager Class

11

23. Plaintiffs Satchell and Boykin are members of, and seek to represent, the

12 African American Lower-Level Manager Class.

13

24. The members of the African American Lower-Level Manager Class

14 identified herein are so numerous that joinder of all members is impracticable. By the end of

15 2003, FedEx Express had many tens of thousands of employees. Although the precise number of

16 African American Lower-Level Managers affected by the discriminatory practices alleged herein

17 is currently unknown, it is far greater than can be feasibly addressed through joinder. The precise

18 number is ascertainable from Defendant’s records.

19

25. There are many questions of law and fact common to the African American

20 Lower-Level Manager Class, and these questions predominate over any questions affecting only

21 individual members. Common questions of fact or law include, among others: (1) whether

22 FedEx Express’ policies or practices have a disparate impact on African American Lower-Level

23 Managers with respect to (a) compensation, (b) promotion to senior management, and

24 (c) discipline; (2) whether any disparate impact is justified by business necessity; (3) whether the

25 disparate impact constitutes a violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C.

26 § 2000e et seq.; (4) whether FedEx Express has intentionally discriminated against African

27 American Lower-Level Managers with respect to (a) compensation, (b) promotion to senior

28 management, and (c) discipline; (5) whether FedEx Express has engaged in a pattern and practice

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 9 of 52

1 of disparate treatment adverse to African American Lower-Level Managers; (6) whether that

2 disparate treatment violates Title VII of the 1964 Civil Rights Act; (7) whether defendant’s

3 intentional discrimination against African American Lower-Level Managers violates 42 U.S.C.

4 § 1981; (8) whether, as to African American Lower-Level Managers who have been employed or

5 reside in California, FedEx Express’ policies or practices violate Section 12940, et seq., of the

6 California Government Code, known as the Fair Employment and Housing Act (“FEHA”); and

7 (9) whether injunctive relief and other equitable remedies (including back pay and front pay) and

8 compensatory and punitive damages are warranted for the African American Lower-Level

9 Manager Class.

10

26. The claims of Representative Plaintiffs Satchell and Boykin are typical of

11 the claims of the African American Lower-Level Manager Class.

12

27. Representative Plaintiffs Satchell and Boykin will fairly and adequately

13 represent and protect the interests of the members of the African American Lower-Level Manager

14 Class. Plaintiffs have retained counsel competent and experienced in complex class actions and

15 employment discrimination litigation.

16

28. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2)

17 because FedEx Express has acted and/or refused to act on grounds generally applicable to the

18 African American Lower-Level Manager Class, making appropriate declaratory and injunctive

19 relief with respect to Plaintiffs Satchell and Boykin and the African American Lower-Level

20 Manager Class as a whole. The members of the African American Lower-Level Manager Class

21 are entitled to injunctive relief to end FedEx Express’ common, uniform, and unfair racially

22 discriminatory personnel policies and practices.

23

29. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3)

24 because common questions of fact and law predominate over any questions affecting only

25 individual members of the African American Lower-Level Manager Class, and because a class

26 action is superior to other available methods for the fair and efficient adjudication of this

27 litigation. The members of the African American Lower-Level Manager Class have been

28 damaged and are entitled to recovery as a result of FedEx Express’ common, uniform, and unfair

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 10 of 52

1 racially discriminatory personnel policies and practices. FedEx Express has computerized payroll

2 and personnel data that will make calculation of damages for specific members of the African

3 American Lower-Level Manager Class relatively simple.

4

STATEMENT OF FACTS APPLICABLE TO ALL CLAIMS

5

A. FedEx Express’ Discriminatory Policies and Practices

6

30. Defendant FedEx Express engages in a pattern and practice of highly

7 subjective decision making regarding employment matters that is discriminatory to Minority

8 Employees and African American Lower-Level Managers and is manifested in initial assignments

9 (as to Minority Employees only), promotions, compensation, and discipline. While Defendant

10 has policies designed to govern these matters, many of these policies involve uncontrolled

11 subjective criteria and/or are applied by Defendant in an arbitrary and capricious manner. As a

12 result, racial biases and stereotypes enter into Defendant’s employment decisions.

13

31. Defendant’s system of subjective and arbitrary decision making has an

14 adverse impact on Minority Employees and African American Lower- Level Managers relative to

15 their non-Minority peers with respect to (a) initial job assignment (as to Minority Employees

16 only); (b) promotion to permanent and full- time positions and to management; (c) compensation;

17 and (d) discipline. This impact is not justified by business necessity. Even if it could be so

18 justified, less discriminatory alternatives exist that could equally serve any alleged necessity.

19

32. Defendant also engages in intentional discrimination against Minority

20 Employees and African American Lower-Level Managers with respect to (a) initial job

21 assignment (as to Minority Employees only); (b) promotion to permanent and full- time positions

22 and to management; (c) compensation; and (d) discipline through its system of subjective and

23 arbitrary decision making, as demonstrated by anecdotal and statistical evidence.

24

33. Defendant has discriminated against Minority Employees by use of a dual-

25 employment track. For example, both full-time and part-time employees fill Handler positions at

26 a facility. The full-time positions are more lucrative and provide employees with more

27 opportunities for advancement, greater job security, and greater pay and benefits. By contrast, the

28 part-time positions are less desirable because they offer lower wages, lesser benefits, changing

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 11 of 52

1 and inconsistent work hours, proportionately heavier responsibilities, and more difficult work

2 conditions. Defendant has a systematic pattern and practice of relegating qualified Minority

3 Employees to part-time jobs, with lesser job security, compensation, and opportunity for

4 advancement. Defendant typically reserve s the full-time, permanent, higher wage positions for

5 non-Minority employees. Consistent with Defendant ’s long-standing discriminatory policies and

6 practices, Defendant typically hires Minority Employees only for entry level, part-time, and

7 casual positions.

8

34. Defendant also disproportionately fails to promote qualified Minority

9 Employees from part-time, casual positions to full-time and permanent positions at the same rate

10 as their similarly situated non-Minority counterparts. Even when FedEx Express does promote

11 Minority Employees from part-time, casual positions to full-time, permanent positions, it does not

12 promote them as quickly as their similarly situated non-Minority counterparts. To be promoted

13 from Handler or other low level hourly positions into Courier, Ramp Transport Driver, or Service

14 Agent positions, a FedEx employee must pass a group of tests known as the Basic Skills Tests

15 (“BST”), which FedEx knows has statistically significant adverse impact on minorities, and

16 which has not been validated. The BST requirement applies uniformly to all Service Agent,

17 Courier, and Ramp Transport Driver candidates in the Western Region. FedEx also uses uniform

18 performance evaluations that have adverse impact and have not been validated, and that are the

19 basis for promotion and compensation decisions under FedEx policy.

20

35. Virtually all Minority Employees of Defendant FedEx Express occupy

21 entry level, hourly positions. FedEx Express disproportionately fails to promote qua lified

22 Minority Employees to lower management positions such as Operations Manager, and instead

23 disproportionately promotes similarly situated or less qualified non-Minority employees to those

24 positions.

25

36. The few Minority Employees who are able to break into the management

26 ranks are usually promoted by a small handful of Minority managers. These Minority managers,

27 however, are themselves often subjected to discriminatory practices that minimize their

28 opportunities for further advancement. Such practices include, for example, exclusion of

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 12 of 52

1 Minority managers from “informal” email buddy lists and social gatherings that are used to

2 communicate relevant operating procedures, discuss managerial issues, and post corporate

3 advancement opportunities.

4

37. FedEx Express disproportionately fails to promote the few qualified

5 African American Lower-Level Managers to Senior Manager positions, and instead

6 disproportionately promotes similarly situated, or less qualified, non-Minority Operations

7 Managers or other non-Minority Lower-Level Managers to Senior Manager positions. Even

8 when African American Lower- Level Managers are promoted to Senior Manager positions, they

9 are promoted less quickly than similarly situated, or less qualified, non-Minorities.

10

38. Plaintiffs are informed and believe that Minority Employees and African

11 American Lower-Level Managers are paid less than non-Minority employees who perform

12 substantially similar work and have similar or lesser skills and experience. Plaintiffs are further

13 informed and believe that non-Minority employees are more likely to be assigned to positions that

14 pay better than positions to which Minority Employees are assigned.

15

39. Plaintiffs are informed and believe that this discrimination in compensation

16 takes on several forms: requiring Minority Employees and African American Lower-Level

17 Managers to perform the job duties of higher positions without a commensurate change in their

18 title or increase in pay; paying Minority Employees and African American Lower-Level

19 Managers less than non-Minority employees with the same job title and job duties; providing

20 Minority Employees with fewer desired overtime hours than non-Minority employees with equal

21 or less seniority; and not paying Minority Employees the guaranteed minimum pay.1

22

40. Defendant has also engaged in a longstanding, widespread and

23 discriminatory policy and practice of applying differential standards in determining whether to

24 subject an employee to disciplinary action. Minority Employees and African American Lower-

25 Level Managers are consistently reprimanded and disciplined for petty matters, and are

26 disciplined for infractions unsupported or contradicted by credible evidence. Non-Minority

27 1 Defendant guarantees its part-time employees a minimum of 17½ hours to which they are entitled even if the
company does not have sufficient work to be performed. The number of hours out of the guaranteed minimum of
28 hours which an employee did not actually work are called “excess” minimum hours.

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 13 of 52

1 Employees are not reprimanded or disciplined for similar matters, or for infractions which are not

2 supported by credible evidence.

3

41. Defendant routinely terminates Minority Employees and African American

4 Lower-Level Managers who receive three forms of written discipline within a 12- month period,

5 even if some of the three are documented counselings or Online Compliment/Counselings 6 (“OLCC”)2, rather than formal warning letters. By contrast, Defendant does not automatically

7 terminate non-Minority employees and managers who are disciplined three times in a 12- month

8 period. Where non-Minorities have received three disciplinary actions in a 12-month period,

9 Defendant has allowed the non-Minority employee to continue his or her employment, has

10 transferred the employee, or has demoted the employee.

11

42. Defendant has condoned the discriminatory conduct of its managers by

12 failing to properly investigate formal complaints regarding discrimination, and by promoting

13 managers who engage in acts of discrimination or transferring them to other locations despite

14 repeated complaints (and in some cases, previous discrimination lawsuits) by Plaintiffs and other

15 Minority Employees and African American Lower-Level Managers.

16

43. This pattern of denying Minority Employees and African American Lower-

17 Level Managers equal assignments, promotions, training, and compensation and of over-

18 disciplining Minority Employees and African American Lower-Level Managers, is not the result

19 of random or non-discriminatory factors. Rather, it is the result of an ongoing and continuous

20 pattern and practice of intentional race discrimination in assignments, compensation, promotions,

21 and discipline. It is further the result of reliance on policies and practices that have an adverse

22 impact on Minority Employees which cannot be justified by business necessity, and for which

23 alternative policies and practices with le ss discriminatory impact could be utilized that would

24 equally serve any asserted business necessity. Plaintiffs are informed and believe that such

25 policies and practices continue up to and including the present and include, without limitation:

26

(a) Failure to consistently post job and promotional openings to ensure

27
2 OLCCs are verbal warnings accompanied by a notation in a company employee database that both employee and
28 manager acknowledge in writing.

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 14 of 52

1 that all Minority Employees and African American Lower-Level Managers have notice of and

2 opportunity to seek advancement, higher compensation, overtime, or more desirable assignments

3 and training;

4

(b) Reliance upon unweighted, arbitrary and subjective criteria (used

5 by a nearly all- non-Minority managerial workforce) in making job assignment, training,

6 performance review, compensation, promotion, and discipline decisions. Even where FedEx

7 policies state objective requirements, these requirements are often applied in an inconsistent

8 manner and ignored at the discretion of management;

9

(c) Reliance on racial stereotypes in making employment decisions

10 involving job assignments, promotions, compensation, discipline and training;

11

(d) Pre-selection and “grooming” of non-Minority employees for

12 promotion, favorable assignments, higher pay, and more desirable positions;

13

(e) Maintenance of largely racially-segregated job categories and

14 departments;

15

(f) Deterrence and discouragement of Minority Employees and African

16 American Lower-Level Managers from seeking advancement, training, favorable assignments

17 and higher paid, more desirable positions;

18

(g) Paying Minority Employees and African American Lower- Level

19 Managers lower compensation tha n similarly situated non-Minorities;

20

(h) Assigning Minority Employees to lower paying positions and

21 positions with lesser advancement potential than those given to non-Minorities (including part-

22 time and casual positions), and advancing Minority Employees more slowly from these positions

23 than similarly situated non-Minority employees;

24

(i) Providing less training and support to Minority Employees and

25 African American Lower-Level Managers than that given to non-Minority employees and

26 managers; and

27

(j) Using employment tests (such as the BST) and performance

28 evaluations that have adverse impact and have not been validated, and failing to explore

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 15 of 52

1 alternative, non-discriminatory options.

2

44. As a proximate result of the racially discriminatory employment practices

3 and other wrongful acts alleged herein, Plaintiffs and members of both classes have suffered loss

4 of income, loss of advancement and promotion, loss of career opportunity, and/or loss of

5 intangible job benefits. As a proximate result of the racially discriminatory employment policies,

6 practices and other wrongful acts alleged herein, Plaintiffs and members of both classes have

7 experienced pain, suffering, severe emotional and mental distress, shame, humiliation,

8 embarrassment, and related physical ailments.

9

45. Plaintiffs, and each of them, have experienced such racially discriminatory

10 employment practices and other racially discriminatory actions by Defendant including, without

11 limitation, the practices and actions described herein.

12

B. FedEx Express’ Operations

13

46. The Plaintiffs to this action are, or have been, employed by Defendant

14 FedEx Express in its Western Region.

15

47. Defendant FedEx Express’ Western Region includes the following states:

16 Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon,

17 part of Texas, Utah, Washington, and Wyoming.

18

48. Defendant employs uniform employment and personnel policies

19 throughout all its districts, regions, and/or divisions in the Western Region. Regardless of facility

20 or corporate division, there are uniform policies for employees, uniform “orientation” procedures,

21 and uniform salary, assignment, pay, training, promotion, and disciplinary policies. All facilities

22 must follow these uniform, company-wide policies and procedures.

23

49. Defendant operates numerous warehouse distribution centers in California

24 and the United States. Distribution facilities are standardized and comprised of a large warehouse

25 to which packages are delivered, sorted, stored for later delivery or pick-up, and shipped.

26

50. Defendant operates several shifts at its major distribution facilities, during

27 which packages arrive and depart the warehouse. Many thousands of packages may be handled

28 and sorted on the Line (the conveyor belt used to move packages inside a station) per hour during

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 16 of 52

1 a shift at a mid- to large-sized facility. An individual package may weigh anywhere from a few

2 ounces to 75 pounds. Crates may weigh up to 200 pounds.

3

51. Defendant employs numerous Handlers to lift, sort, scan and stack

4 packages in buckets, cans and delivery vehicles. In addition, several of the Handlers are

5 designated as “Lead” and are responsible for the coordination and efficient operation of other

6 Handlers in processing packages along a particular part of the Line.

7

52. In addition to Handlers, Defendant employs Checker/Sorters, who scan and

8 direct packages; Couriers and Swing Drivers, who operate the delivery vehicles and deliver and

9 pickup packages from customers; Shuttle Drivers, who drive shuttles or large tractor trucks to

10 pick up significant numbers of packages from institutional customers and to make trips to the

11 airport and other distribution facilities; Customer Service Agents, who interact with the public

12 and handle customer pickups and complaints; Dispatchers, who communicate with Couriers;

13 Operations Managers, who supervise the various workgroups or job classes in the Facility during

14 a shift; and Freight Handlers, Material Handlers, Ramp Agents, Ramp Area Drivers, and Ramp

15 Transport Drivers to load and unload packages and heavy freight, to transfer the cargo to and

16 from the cargo airplanes to the onsite facility for sorting or storage, and to transfer the cargo to

17 and from the large freight vehicles or smaller shuttles that transport the packages to the various

18 distribution facilities in the area, or to their ultimate destinations. FedEx also employs Dangerous

19 Goods Agents, Information Agents, Operations Agents, Service Assurance Agents, Truck Control

20 Agents, Trace Representatives, Input Auditors, and Team Leaders to assist with and coordinate

21 these operations.

22

53. The Regions for Defendant FedEx Express are headed by Vice Presidents

23 of Operations. The Districts for FedEx Express are headed by District Managers who report

24 directly to the Vice Presidents of Operations. The Districts are comprised of individual

25 distribution/service centers in the Domestic Ground Operations (“DGO”) division, and of

26 “organizations” in Air Ground Freight Services (“AGFS”) division, which may correspond to a

27 single facility or to set of operations within a larger airport based facility. Both service centers

28 and organizations are run by Senior Managers, who report directly to the Managing Directors.

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 17 of 52

1 Senior Managers supervise Operations Managers, the lowest management positions.

2

54. The Vice President of Operations, the District Managers and Senior

3 Managers form the senior management ranks in a region. The various operations managers at

4 each facility form the lower management ranks.

5

55. Defendant has limited the senior and lower management ranks primarily to

6 non-Minorities in the Western Region. Defendant principally promotes from within and

7 maintains a work force with significant numbers of Minority Employees in lower level jobs.

8 Defendant, however, employs only a sparse number of Minorities in its management ranks.

9 Plaintiffs are informed and believe, and based thereon allege, that Defendant has never employed

10 a Minority as a Vice President of Operations in the Western Region. Plaintiffs are informed and

11 believe that even when Minority Employees are promoted, on average they are advanced later,

12 and then more slowly, than similarly situated non-Minority employees.

13

56. As a result of the scarcity of Minority managers in management positions

14 in the Western Region, the managerial ranks within the District are commonly known as the “Ole

15 Boys Network” or the “Country Club.” Racial epithets have often been used by Defendant’s

16 Senior Managers.

17

57. The racial composition of Defendant’s workforce with respect to its senior

18 and lower management ranks is grossly disproportionate to the available pool of Minority

19 workers who are qualified for positions in the senior and lower management ranks of Defendant ’s

20 business.

21 22 I. 23

ALLEGATIONS OF NAMED PLAINTIFFS MINORITY EMPLOYEE CLASS
Valerie Brown

24

A. Class Claims

25

58. Plaintiff Brown was hired by Defendant in approximately 1982 as a

26 Customer Service Agent at the distribution facility in Sunnyvale Facility and transferred to the

27 Milpitas Facility in approximately 1987 upon closure of the former facility. In approximately

28 1989, Defendant employed Plaintiff Brown as the sole African Americ an Courier at the Milpitas

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 18 of 52

1 Facility.

2

59. In 2003, Defendant gave Plaintiff Brown written, disciplinary notations

3 regarding issues for which non-Minority Couriers were not criticized, negatively affecting her

4 performance reviews and promotability. For example, Plaintiff Brown was reprimanded for

5 calling in sick and not speaking directly with a manager, whereas non-Minority employees were

6 not disciplined when they called in sick and left messages for their managers with hourly

7 employees. Plaintiff Brown was disciplined despite the objection of her direct supervisor.

8

60. Similarly, in July 2003, Plaintiff Brown was disciplined for a customer

9 complaint without having had an opportunity to give her account of the incident. By contrast,

10 Defendant has not disciplined numerous non-Minority employees who have had customer

11 complaints made against them.

12

61. Plaintiff Brown made numerous complaints to the Station Manager and to

13 human resources regarding this racially discriminatory treatment. However, Defendant did not

14 take any action regarding the complaints, apart from questioning Plaintiff Brown.

15

62. In 1995, Defendant opened the current Santa Clara Facility and transferred

16 many of the service routes that had formerly been operated from the Milpitas Facility to the new

17 facility. In allocating the Courier routes between the two facilities, Defendant divided Plaintiff

18 Brown’s route equally between the two centers. Plaintiff Brown’s route was the only service route

19 that was split. All the routes for non-Minority Couriers were kept intact. In order to keep her

20 service area, Plaintiff Brown was required to transfer to the Santa Clara Facility as a part-time

21 courier, thus losing the higher full- time pay. No non-Minority employee courier was required to

22 convert to part-time status or to give up his or her route.

23

63. Defendant engaged in race-based discrimination by passing over Plaintiff

24 Brown in favor of more junior, less qualified non-Minority employees for various promotions and

25 higher paying positions. In the early 1990s, Plaintiff Brown applied for several sales

26 representative positions that defendant had posted to employees. Plaintiff Brown was not hired

27 for any of the sales representative positions despite her long service with Defendant. Instead,

28 Defendant hired numerous non-Minority recent graduates, with little or no experience, and other

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 19 of 52

1 non-Minority employees from within the company. With her seniority, Plaintiff Brown should

2 have been hired; the advertisements for the positions indicated that prior sales experience was not

3 a requirement since the Company would provide necessary training.

4

64. Similarly, in 2000, Plaintiff Brown applied for two higher paying Dispatch

5 positions at the Oakland Station and the Oakland Hub. However, Plaintiff Brown did not get

6 either position. Once again, Defendant passed over her in favor of more junior, less qualified non-

7 Minority employees.

8

65. In January 2001 and February 2002, Plaintiff Brown applied for Operations

9 Manager positions at the Santa Clara Facility and the Milpitas Facility, respectively. In each case,

10 Defendant promoted a non-African American to the position despite the fact that the non-African

11 American had significantly less seniority than Plaintiff Brown and only Courier experience.

12 Plaintiff Brown had Courier, acting Dispatcher, and Customer Service Agent experience and had

13 been with the Company since 1982.

14

66. Plaintiff Brown is also informed and believes, and thereupon alleges, that

15 she has been compensated less than similarly situated non-Minorities.

16

B. Individual Claims for Work Conditions, Harassment, and Retaliation

17

67. While Plaintiff Brown was a Courier at the Milpitas Facility, Defendant

18 discriminated against her on the basis of race, saddling her with greater responsibilities than her

19 non-Minority colleagues and thus making it more difficult fo r her to perform as well as them.

20 Defendant required Plaintiff Brown to deliver packages on her route, as well as perform overflow

21 responsibilities and make additional trips to pick up freight left by other Couriers. Defendant did

22 not require Plaintiff Brown’s non-Minority colleagues to perform these additional duties.

23

68. Defendant harassed Plaintiff Brown by criticizing her in a manner that was

24 publicly embarrassing and humiliating. Instead of criticizing Plaintiff Brown in the privacy of an

25 office as they did with non-Minority employees, Defendant would stop the conveyor belt to draw

26 attention and criticize Plaintiff Brown while she was working among others on the Line.

27

69. In July 2002, Defendant retaliated against Plaintiff Brown for filing a racial

28 discrimination complaint with the Department of Fair Employment and Housing. In response to

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 20 of 52

1 Plaintiff Brown’s complaint, Defendant disciplined Plaintiff Brown more harshly than her non-

2 Minority colleagues. Defendant disciplined Plaintiff Brown in response to a customer complaint

3 but did not discipline the non-Minority employees also mentioned in the complaint.

4

70. In addition to the foregoing, Plaintiff Brown has experienced disparate

5 treatment on the basis of race with respect to many employment practices by Defendant.

6

71. Plaintiff Brown filed a timely charge of discrimination with the EEOC on

7 April 16, 2003, attached hereto as Exhibit “A,” which was automatically cross- filed with the

8 DFEH. Plaintiff Brown has received Notices of Right to Sue from the EEOC and from the

9 DFEH.

10

Rick Gonzales

11

A. Class Claims

12

72. Plaintiff Rick Gonzales is a Latino male who was employed by Defendant

13 FedEx Express as a Courier from May 1998 until September 2002.

14

73. Defendant has undermined Plaintiff Gonzales’ attempts to attain

15 management positions, while actively supporting non-Minority candidates in their efforts to

16 secure management positions. Defendant never discussed or provided guidance to Plaintiff

17 Gonzales about the possibility or process of entering management, although he had expressed his

18 desire to advance to management several times. Further, Defendant did not offer him the support

19 provided non-Minority employees in preparing for management, such as training him on

20 computer systems or discussing a manager’s operational responsibilities. Defendant’s

21 discriminatory management selection practices discouraged Plaintiff Gonzales from applying for

22 management positions.

23

74. Plaintiff Gonzales observed that non-Minority employees were promoted

24 to management faster than Minority Employees, and that management steered non-Minority

25 employees into management positions. For example, during Plaintiff Gonzales’ 5-year tenure at

26 Defendant’s Santa Fe Springs location, several non-Minority employees became managers, while

27 only one Minority entered management. The Minority Employees were consistently given the

28 worst shifts, working at night with the newest employees. Plaintiff Gonzales observed less senior

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 21 of 52

1 non-Minority employees being promoted to management before him even though he was equally

2 if not more qualified for the positions that were open, but he did not observe his Minority peers

3 attain management positions.

4

75. Defendant has further discriminated against Plaintiff Gonzales by engaging

5 in discriminatory employment practices intended to and/or having the effect of undermining

6 Plaintiff Gonzales’ efforts to advance into Defendant’s management ranks. In August 2002,

7 Defendant refused to allow Plaintiff Gonzales to apply for management positions because his

8 performance review rating was 3/10 of a point below the alleged cutoff. Plaintiff Gonzales

9 believes that Defendant manipulates such subjective criteria in order to control who may become

10 eligible for management. However, Plaintiff Gonzales is informed and believes that Defendant

11 has permitted non-Minority employees to apply for management positions with performance

12 review scores lower than that of Plaintiff Gonzales.

13

76. Defendant has discriminated against Plaintiff Gonzales by disciplining him

14 for infractions for which non-Minority employees were not similarly disciplined. For example,

15 Plaintiff Gonzales has received multiple OLCC’s and warning letters for infractions such as

16 incorrect calculations, packages not returned, and timecard errors. In contrast, his non-Minority

17 peers were rarely disciplined for such conduct.

18

77. Plaintiff Gonzales is also informed and believes, and thereupon alleges,

19 that he has been compensated less than similarly situated non-Minorities.

20

B. Individual Claim for Failure to Rehire from Disability

21

78. Defendant discriminated against Plaintiff Gonzales by failing to assisting

22 him in securing a suitable position upon return from workers compensation leave. After Plaintiff

23 Gonzales was injured on the job for the second time with a severe lower back injury, he required

24 an extended leave. When he prepared to return to work, Defendant displaced him from his prior

25 position and refused to identify a suitable position for him anywhere in Southern California,

26 despite Plaintiff Gonzales’ 12-year tenure and his offer to accept any position available, includ ing

27 those requiring relocation to Los Angeles or Las Vegas. Instead, Defendant sent Plaintiff

28 Gonzales a termination letter on approximately September 13, 2002. Defendant has routinely

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 22 of 52

1 assisted non-Minority employees who have suffered permanent and temporary disabilities to find

2 suitable job opportunities with FedEx.

3

79. In addition to the foregoing, Plaintiff Gonzales has experienced disparate

4 treatment on the basis of race with respect to many employment practices by Defendant.

5

80. Plaintiff Gonzales filed a timely charge of discrimination with the EEOC

6 on April 15, 2003, attached hereto as Exhibit “B,” which was automatically cross-filed with the

7 DFEH. Plaintiff Gonzales has received Notices of Right to Sue from the EEOC and from the

8 DFEH.

9

Cynthia Guerrero

10

A. Class Claims

11

81. Defendant hired Plaintiff Guerrero in approximately 1995. Plaintiff

12 Guerrero worked for Defendant in Commerce City and Santa Fe Springs, California as a

13 Customer Service Agent and as a Courier.

14

82. Among other things, Defendant discriminated against Plaintiff Guerrero by

15 failing to promote her to positions for which she was qualified and instead promoting less senior,

16 less qualified non-Minority employees over her, and/or by paying Plaintiff Guerrero less than

17 non-Minority employees, even though Plaintiff Guerrero has comparable responsibilities and

18 more seniority and work experience. Plaintiff Guerrero was paid at the Courier/Handler rate until

19 late 2002, even though she was performing the work of a regular Courier. The difference in pay

20 between the two positions is about $1/hour. The difference in job responsibilities is that

21 Courier/Handlers cannot exceed 8 stops per hour, while Couriers can. Plaintiff Guerrero was

22 often doing 18 stops per hour.

23

83. Upon beginning to perform the duties of a Courier, Plaintiff Guerrero

24 asked Defendant when she would be upgraded to Courier pay. Defendant told Plaintiff Guerrero

25 she could not be upgraded immediately because of a hiring freeze, but that she wouldn’t have to

26 wait more than a month. In fact, Plaintiff Guerrero was not upgraded until late 2002, after she

27 filed her EEOC charge. Meanwhile, Plaintiff Guerrero’s non-Minority colleagues did receive the

28 upgrade.
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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 23 of 52

1

84. Defendant also discriminated against Plaintiff Guerrero by reducing her

2 work hours, thus negatively affecting her compensation, while increasing the work hours given to

3 non-Minority employees with less seniority.

4

85. Defendant further discriminated against Plaintiff Guerrero by issuing

5 formal disciplinary actions against her for petty or trivial matters, or matters unsupported or

6 contradicted by credible evidence. Defendant has given Plaintiff Guerrero over 50 calendar

7 notations for trivial matters such as failure to pull an airbill copy or forgetting to sign her time

8 card, for which non-Minority employees are not disciplined. In fact, Defendant routinely

9 overlooks late arrival, no-shows, and other more significant breaches of conduct by non-Minority

10 employees.

11

86. Defendant has systematically discriminated against the employees in

12 Plaintiff Guerrero’s workgroup, called Loop 9, all of whom are Minority Employees.

13

87. Plaintiff Guerrero is also informed and believes, and thereupon alleges, that

14 she has been compensated less than similarly situated non-Minorities.

15

B. Individual Claim for Retaliation

16

88. Defendant has also retaliated against Plaintiff Guerrero for complaining

17 about race-based discrimination. Most recently, in July 2004, Defendant effectively terminated

18 Plaintiff Guerrero. When Plaintiff Guerrero sought to clarify her employment status, which she

19 had previous ly been informed was “inactive” due to long-term disability leave, Plaintiff Guerrero

20 was informed that her employment was instead terminated due to her failure to find an alternative

21 position with Defendant after she had been displaced.

22

89. In addition to the foregoing, Plaintiff Guerrero has experienced disparate

23 treatment on the basis of race with respect to many employment practices by Defendant.

24

90. Plaintiff Guerrero filed timely charges of discrimination with the EEOC on

25 June 13, 2002 and June 18, 2003, attached hereto as Exhibit “C,” which were automatically

26 cross- filed with the DFEH. Plaintiff Guerrero has received Notices of Right to Sue from the

27 EEOC and from the DFEH.

28
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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 24 of 52

1

Rachel Hutchins

2

A. Class Claims

3

91. Plaintiff Rachel Hutchins is an African American woman formerly

4 employed by Defendant as a Handler in Bakersfield, California. Plaintiff worked for Defendant

5 from December 1995 through April 1996, and again from March 2001 through January 2004.

6

92. Defendant hired and/or promoted less senior, less experienced non-

7 Minority individuals to permanent or full-time positions, whereas Plaintiff Hutchins remained a

8 casual Handler during her more than two and a half years with Defendant.

9

93. Defendant passed over Plaintiff in favor of less or equally qualified non-

10 Minority individuals in filling positions for which Plaintiff applied. Starting in approximately

11 October 2002, Plaintiff Hutchins sought a position as a Customer Service Agent (CSA). From

12 approximately May or June 2002 to April 2003, Plaintiff Hutchins performed the duties of a

13 Customer Service Agent, without a commensurate change in title or salary. Although Customer

14 Service Agent positions became available, Defendant did not place Plaintiff Hutchins in these

15 positions.

16

94. Plaintiff Hutchins complained several times to Defendant about its failure

17 to promote her to a Customer Service Agent position. Defendant offered various excuses for this

18 failure, including that Plaintiff Hutchins could not be promoted from Casual status. However,

19 Defendant promoted non-Minority employees to permanent Customer Service Agent and Courier

20 positions from Casual status. In one such instance, two Customer Service Agent positions

21 became available in approximately November 2002, and Defendant informed Plaintiff Hutchins

22 that she would receive one of the positions. Instead, however, Defendant placed in one of the

23 positions a non-Minority employee who had no experience as a Customer Service Agent, whom

24 Plaintiff Hutchins herself had trained, and who had quit her job a few weeks previously.

25

95. In April 2003, Defendant informed Plaintiff Hutchins that she would

26 receive the next Customer Service Agent position that opened, without being required to apply.

27 From approximately May 2003, a Customer Service Agent position was available. Although

28 Plaintiff was qualified, Defendant still did not place Plaintiff Hutchins in a Customer Service

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 25 of 52

1 Agent position.

2

96. Defendant has discriminated against Plaintiff Hutchins with respect to

3 compensation by paying her as a Handler, while requiring her to perform the duties of a Customer

4 Service Agent. Defendant refused to offer Plaintiff Hutchins a Customer Service Agent position,

5 or to change her title or compensation to reflect her additional duties.

6

97. Defendant also discriminated against Plaintiff Hutchins with respect to

7 compensation by failing to pay her correctly for hours worked on Saturday over an approximately

8 two month period. Plaintiff Hutchins was informed and believes that according to FedEx policy,

9 temporary and casual employees are to be paid at the rate of one and a half times their hourly rate

10 for work performed on Saturday. Plaintiff is informed and believes, and on that basis alleges, that

11 non-Minority employees have been paid at the higher rate for such hours. Defendant has further

12 discriminated against Plaintiff Hutchins with respect to compensation by allowing her to work

13 fewer hours than similarly situated non-Minority employees, and by relegating her to casual

14 status.

15

98. Plaintiff Hutchins is also informed and believes, and thereupon alleges, tha t

16 she has been compensated less than similarly situated non-Minorities.

17

B. Individual Claims for Termination and Retaliation

18

99. Defendant retaliated against Plaintiff Hutchins for filing a charge of

19 discrimination with the EEOC and for participating in this lawsuit by wrongfully terminating

20 Plaintiff Hutchins on January 20, 2004.

21

100. In addition to the foregoing, Plaintiff Hutchins has experienced disparate

22 treatment on the basis of race with respect to many employment practices by Defendant.

23

101. Plaintiff Hutchins filed a timely charge of discrimination with the EEOC

24 on May 27, 2003, attached hereto as Exhibit “D,” which was automatically cross- filed with the

25 DFEH. Plaintiff Hutchins has received Notices of Right to Sue from the EEOC and from the

26 DFEH. Plaintiff Hutchins supplemented this charge with a retaliation claim on August 16, 2004

27 and has requested a Notice of Right to Sue.

28
477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 26 of 52

1

Tyrone Merritt

2

A. Class Claims

3

102. Plaintiff Tyrone Merritt is an African American male employed by FedEx

4 Express since September 1998. Plaintiff Merritt worked in FedEx Express’s Phoenix, Arizona

5 facility from the fall of 2001 through the summer of 2005. During that time, Plaintiff Merritt

6 worked as a permanent part-time Handler.

7

103. During his tenure as a Handler in Phoenix, Plaintiff Merritt was passed

8 over for numerous promotions, including promotions to the position of Courier. Plaintiff Merritt

9 was not able to apply for a Courier promotion because he failed the Basic Skills Test (“BST”) in

10 February 2003 and again in May 2005. The BST is a requirement for promotion to Courier

11 positions even though it has tremendous adverse impact and has not been validated.

12

104. Plaintiff Merritt has also been passed over for promotions to other

13 positions, including positions as a Dispatcher, Material Handler, Ramp Agent, and Team Leader,

14 all of which were given to similarly situated white employees. Plaintiff Merritt was also passed

15 over for two Dangerous Goods Specialist positions, which were both filled by white applicants

16 with less seniority than Plaintiff Merritt.

17

105. Plaintiff Merritt has also been subjected to harsher discipline than similarly

18 situated white employees. For example, in approximately February 2004, Plaintiff Merritt was

19 reprimanded by his manager for a “drop can” violation because a can containing packages fell

20 from his dolly. Plaintiff Merritt is aware of two white employees who dropped cans from their

21 dollies, but received no reprimands.

22

106. Plaintiff Merritt has also been denied fair compensation because of FedEx

23 Express’ racially biased policies and practices.

24

B. Individual Claim for Denial of Leave Without Pay

25

107. Plaintiff Merritt was denied leave without pay (“LWOP”) in mid-2004,

26 while similarly situated white employees were permitted to take LWOP.

27

108. In addition to the foregoing, Plaintiff Merritt has experienced disparate

28 treatment on the basis of race with respect to many employment practices by Defendant.

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 27 of 52

1

109. Plaintiff Merritt filed a timely charge of discrimination with the EEOC on

2 December 2, 2004, and a supplemental charge on July 1, 2005, both attached hereto as

3 Exhibit “E.” Plaintiff Merritt has requested a Notice of Right to Sue from the EEOC.

4

Kelvin Smith, Sr.

5

A. Class Claims

6

110. Defendant hired Plaintiff Smith in approximately November 1989 as a

7 part-time Courier at the Santa Clara Facility.

8

111. From April 2002 through July 2002, Plaintiff Smith acted as Operations

9 Manager for PM Sort Operations at his Facility. His duties included closing down the facility,

10 covering sick calls, enlisting Couriers to help loading, assuring that freight got on shuttles in time,

11 guiding the movement of trucks within the Facility, and coordinating the activities of Handlers,

12 Loaders and Dispatchers. The only management function that Plaintiff Smith did not perform

13 was providing performance reviews. Repeatedly, Plaintiff Smith requested that Defendant permit

14 him to complete the management training program and enable him to promote to open Operations

15 Manager positions. Defendant failed to assist Plaintiff Smith.

16

112. Defendant undermined Plaintiff Smith’s efforts to obtain management

17 training while actively supporting non-Minority candidates in their efforts to secure management

18 training. Plaintiff Smith participated in the ASPIRE management training program, successfully

19 completed the program’s required tests and assessments, and not only met but exceeded the

20 performance review requirements. However, Defendant failed to allow Plaintiff Smith to

21 complete the final part of the program, a peer assessment that had to be scheduled by

22 management. From April 2002 through July 2002, Plaintiff Smith’s managers ignored his

23 repeated requests to complete the peer review section. By contrast, Defendant consistently

24 assisted less senior and less experienced non-Minority ASPIRE participants in completing the

25 program, thereby permitting them to apply for management positions for which Plaintiff Smith

26 remained ineligible because of Defendant’s failures.

27

113. Defendant discriminated against Plaintiff Smith by paying him less than

28 less senior and/or similarly situated non-Minority employees. Defendant paid Plaintiff Smith less

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 28 of 52

1 than less experienced non-Minority Lead Handlers, even when Plaintiff Smith was required to

2 perform management duties for the PM operations.

3

114. Defendant provided inferior training to Plaintiff Smith compared with

4 similarly situated non-Minority employees. While Plaintiff Smith was acting as an Operations

5 Manager from April 2002 to July 2002, Defendant failed to provide Plaintiff Smith with the level

6 of training provided to Plaintiff Smith’s non-Minority peers with respect to particular operational

7 indices in Plaintiff Smith’s facility.

8

115. Defendant discriminated against Plaintiff Smith by disciplining him for

9 infractions for which non-Minority employees were not similarly disciplined. In February 2002,

10 Defendant issued Plaintiff Smith his first warning letter for administering a makeshift procedure

11 to assure that the Facility would meet performance objectives. Plaintiff Smith was also

12 suspended for a week. Plaintiff Smith had performed the procedure only upon directives from his

13 non-Minority Manager and Station Manager. However, Defendant did not discipline, either

14 verbally or with warning letters, the two non-Minority managers responsible for implementing the

15 Astra Sops procedure. African American Plaintiff Satchell was the only other person disciplined

16 in the matter. Similarly, Defendant has not disciplined non-Minority employees for actions taken

17 as a result of management directives.

18

116. In May 2002, Plaintiff Smith was again unfairly disciplined when a delay

19 caused freight to arrive late at the ramp. The non-Minority manager responsible for the delay was

20 not disciplined.

21

117. Plaintiff Smith is also informed and believes, and thereupon alleges, that he

22 has been compensated less than similarly situated non-Minorities.

23

B. Individual Claims for Te rmination and Retaliation

24

118. In July 2002, in retaliation for Plaintiff Smith’s filing of a complaint with

25 the Department of Fair Employment and Housing for racial discrimination and harassment,

26 Defendant wrongfully terminated Plaintiff Smith for a trivial time card oversight that had no

27 practical impact on Plaintiff Smith’s wages and that was identified on the same day before any

28 processing. Defendant routinely allows non-Minority employees or managers to correct

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 29 of 52

1 identified mistakes on timecards.

2

119. In this particular case, Plaintiff Smith failed to clock an authorized ten-

3 minute break to collect his children from daycare. Plaintiff Smith’s Station Manger, upon seeing

4 Plaintiff Smith with his children, took it upon herself to instruct Plaintiff Smith’s manager to

5 check his timecard to see if Plaintiff Smith had clocked his break. The Station Manager did not

6 permit Plaintiff Smith to correct the mistake, even though non-Minority employees routinely

7 correct mistakes on time cards. Non-Minority Employees also routinely take breaks without

8 indicating them by time codes on their time cards. Defendant does not strictly police every

9 movement of non-Minority employees, nor do Station Managers concern themselves with such

10 employee matters that are more properly handled by an Operations Manager. Finally, Defendant

11 is liberal in accommodating childcare concerns of non-Minority employees, especially when such

12 accommodation has, as in the case of Plaintiff Smith, no material impact on the employee’s job

13 performance.

14

120. In August 2002, Defendant refused to rehire Plaintiff Smith to his position

15 as Lead Handler when it upheld its discriminatory discipline and wrongful termination actions

16 against him. Plaintiff Smith had filed an internal discrimination complaint, as well as a

17 Guaranteed Fair Treatment (“GFT”) request in connection with his discriminatory discipline and

18 wrongful termination claims dating from February 2002 through Plaintiff Smith’s termination in

19 July 2002. As part of his appeal, Plaintiff Smith submitted facts supporting his claims of

20 differential treatment and discrimination at the hands of Defendant. Defendant has overturned

21 unfair actions and rehired non-Minority employees upon the basis of much less credible

22 information than that provided by Plaintiff Smith.

23

121. In addition to the foregoing, Plaintiff Smith has experienced disparate

24 treatment on the basis of race with respect to many employment practices by Defendant.

25

122. Plaintiff Smith filed a timely charge of discrimination with the EEOC on

26 June 24, 2003, which was automatically cross- filed with the DFEH, and filed a separate timely

27 charge with the DFEH on July 22, 2002. These charges are attached hereto as Exhibit “F.”

28 Plaintiff Smith has received Notices of Right to Sue from the EEOC and from the DFEH.

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 30 of 52

1

Ken Stevenson

2

A. Class Claims

3

123. Plaintiff Stevenson is an African American male currently employed by

4 Defendant as an Operations Manager in Compton, California. Plaintiff Stevenson began working

5 for Defendant in approximately May 1997 as a casual, part-time Courier.

6

124. Defendant consistently undermined Plaintiff Stevenson’s efforts to attain

7 management positions, while actively supporting non-Minority employees in their attempts to

8 enter management. Prior to his promotion to Operations Manager in 2005, Plaintiff Stevenson

9 had sought to apply for promotion more than ten times, without success. Rather than respond to

10 Plaintiff Stevenson’s multiple efforts to secure a management position, Defendant offered

11 baseless excuses for its failure to promote him. For example, Senior Manager Mike Smith told

12 Plaintiff Stevenson that he must complete management classes, but when Plaintiff indicated his

13 willingness to begin management classes, Smith postponed the classes, and then only held them

14 intermittently. On other occasions, Defendant told Plaintiff Stevenson there was a “hiring

15 freeze.” Meanwhile, Defendant promoted other less senior non-Minority employees over

16 Plaintiff Stevenson, such as Tim Becker and Mike Aroz, notwithstanding the fact that Plaintiff

17 Stevenson received a higher management assessment.

18

125. Defendant also required Plaintiff Stevenson to attend management classes

19 on his own time, while non-Minority employees, such as Becker and Aroz, were allowed to

20 attend them during work time.

21

126. Smith further told Plaintiff Stevenson that he would never be a manager as

22 long as Smith worked at the facility. Plaintiff Stevenson’s co-workers told him they have heard

23 similar comments from Smith and others about Plaintiff Stevenson.

24

127. Defendant has discriminated against Plaintiff Stevenson by disciplining

25 him for infractions for which non-Minority employees were not similarly disciplined. For

26 example, Defendant has disciplined Plaintiff Stevenson for failing to tuck in his shirt, but

27 Defendant refuses to purchase shirts big enough for Plaintiff Stevenson. Defendant has further

28 used such petty infractions as barriers to Plaintiff Stevenson’s promotion into management. For

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 31 of 52

1 example, on May 8, 2003, Defendant informed Plaintiff Stevenson that he could not apply for a

2 vacant manager position because his socks were too short. When Plaintiff Stevenson pointed out

3 that Mike Aroz, a non-Minority employee, wore his socks in an identical fashion, Defendant

4 simply instructed Aroz to change his socks, but did not prevent him from applying for the

5 manager position. Aroz became a manager approximately two weeks later.

6

128. Plaintiff Stevenson is also informed and believes, and thereupon alleges,

7 that he has been compensated less than similarly situated non-Minorities.

8

B. Individual Claim for Harassment

9

129. Defendant has used, or permitted others to use, offensive racial epithets in

10 Plaintiff Stevenson’s workplace. For example, when Plaintiff Stevenson’s car was stolen,

11 Operations Manager Shelley Humphrey stated, “You people drive those kind of cars.” When

12 Plaintiff Stevenson reported the comment to his supervisor, Roger Fleud, Fleud said, “We all

13 have a little racism in us.” When Plaintiff Stevenson filed an internal EEO complaint about these

14 comments, Defendant retaliated against him by further blocking him from being promoted to

15 management.

16

130. In addition to the foregoing, Plaintiff Stevenson has experienced disparate

17 treatment on the basis of race with respect to many employment practices by Defendant.

18

131. Plaintiff Stevenson filed a timely charge of discrimination with the EEOC

19 on June 13, 2002, attached hereto as Exhibit “G,” which was automatically cross- filed with the

20 DFEH. Plaintiff Stevenson has received Notices of Right to Sue from the EEOC and from the

21 DFEH.

22 II. 23

AFRICAN AMERICAN LOWER-LEVEL MANAGER CLASS Derrick Satchell

24

A. Class Claims

25

132. Plaintiff Satchell was hired by Defendant FedEx Express in approximately

26 June 1992 as a part-time Handler at Defendant ’s Facility in Santa Clara, California. Despite

27 repeated requests by Plaintiff Satchell for full-time employment, Defendant hired and/or

28 promoted less senior, less experienced non-Minority individuals to Courier and other full- time

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 32 of 52

1 positions before Defendant gave Plaintiff Satchell a full- time position.

2

133. Once Plaintiff Satchell finally obtained a position as an Operations

3 Manager, Defendant also consistently issued formal disciplinary actions against Plaintiff Satchell

4 for petty or trivial matters for which non-Minority employees were not disciplined, thus lowering

5 Plaintiff Satchell’s performance reviews and rendering him ineligible for promotion.

6

134. Defendant discriminated against Plaintiff Satchell by paying him less than

7 less senior and/or similarly situated non-Minority employees. Throughout Plaintiff Satchell’s

8 employment with FedEx, Defendant paid Plaintiff Satchell less than non-Minority managers even

9 though Plaintiff Satchell had comparable responsibilities and more seniority and management

10 experience.

11

135. In approximately December 1999, when Plaintiff Satchell was a Courier

12 Operations Manager, Plaintiff Satchell received his first warning letter for excessive late

13 deliveries by Couriers on Mondays. Defendant disciplined Plaintiff Satchell despite the fact that

14 the problem dated back to a prior Operations Manager’s tenure and that the late deliveries were

15 occurring only on Plaintiff Satchell’s scheduled day off. Defendant has not reprimanded non-

16 Minority managers, much less given warning letters, where the non-Minorities were not directly

17 responsible for the infraction. In addition, Defendant had not disciplined the non-Minority

18 manager who supervised the workgroup prior to Plaintiff Satchell.

19

136. In approximately August 2001, Defendant disciplined Plaintiff Satchell for

20 insubordination for failure to submit, in a timely manner, an action plan for correcting a

21 deficiency in his operations. Plaintiff Satchell failed to submit the action plan on time because

22 Defendant had not properly notified Plaintiff Satchell of his need to submit the Plan. Plaintiff

23 Satchell was required to work through the night to prepare the plan and submitted it a day late.

24 Defendant disciplined Plaintiff Satchell even though he had proof that other non-Minority

25 managers were also failing in the cited area, but were not required to submit similar Action Plans

26 and were not otherwise disciplined.

27

137. Defendant disciplined Plaintiff Satchell again in November 2001 in

28 connection with his performance review. Defendant gave Plaintiff Satchell a warning letter after

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 33 of 52

1 rating his performance as 1.0 in one area of the review due to Plaintiff Satchell’s group ’s failure

2 to improve in that area. Plaintiff Satchell’s Senior Manager, Christopher Matthews, refused to

3 alter the low rating when Plaintiff Satchell produced emails from Matthews commending Plaintiff

4 Satchell’s group for improvement in the area in question, and stating “excellent job; now you

5 only need to maintain it.” Defendant’s personnel policy states that disciplinary letters should not

6 be issued where only one or two areas of a review are deficient; a warning letter is warranted only

7 if an entire performance review is 1.0 or below. Defendant does not issue warning letters to non-

8 Minority managers regarding performance reviews unless the entire review is unsatisfactory.

9 Further, Defendant does not issue warning letters to non-Minorities who provide evidence

10 contradicting an allegation of unsatisfactory performance.

11

138. On December 1, 2001, Plaintiff Satchell met with District Director Steven

12 Seymour regarding the warning letter. Seymour assured Plaintiff Satchell that the letter would

13 not be entered in the system. Based on Seymour’s assurance, Plaintiff Satchell did not purse the

14 Guaranteed Fair Treatment (“GFT”) process further. When Defendant terminated Plaintiff

15 Satchell’s employment in April 2002 for three active, documented disciplinary actions, the

16 warning letter in question was counted toward the three.

17

139. In November 2001, Defendant gave Plaintiff Satchell an OLCC because he

18 had failed to cancel excess minimum hour pay for Couriers in his group who had not actually

19 worked the minimum number of hours. At the time, Plaintiff Satchell informed Defendant that

20 canceling the minimum without a waiver would violate policy. In December 2001, Seymour and

21 Matthews informed managers at the Santa Clara Facility that they wanted excess minimum hours

22 cancelled regardless of waivers. Again, Plaintiff Satchell objected, citing policy, but cancelled

23 the hours anyway. Plaintiff Satchell was issued a warning letter, however, because he

24 inadvertently failed to cancel the excess minimum hours of a few couriers. Whereas Defendant

25 issued Plaintiff Satchell a warning letter for his inadvertent failure to cancel payment for excess

26 minimum hours, Defendant refused to issue warning letters to non-Minority managers, such as

27 Paul Birkenbach, who also failed a second time to cancel excess minimum hours.

28
477941.1

140.

Plaintiff Satchell is also informed and believes, and thereupon alleges, that

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 34 of 52

1 he has been compensated less than similarly situated non-Minorities.

2

B. Individual Claims for Failure to Promote, Termination, and

Retaliation 3

141. Defendant undermined Plaintiff Satchell’s efforts to advance within

4

management, while actively supporting his non-Minority peer managers in their efforts to

5

advance within management. Defendant discriminated against Plaintiff Satchell by failing to

6

advance or promote Plaintiff Satchell from a Level 25 to Level 26 Operations Manager during his

7

employment with the Company. Plaintiff had satisfied all the requirements for a Level 26

8

promotion, including having been in a Level 25 manager position for over 18 months and having

9

received successive performance reviews in excess of 3.0. By contrast, Defendant promoted

10

numerous non-Minority Operations Managers to Level 26 who joined management after Plaintiff

11

Satchell and had received equal or lower performance reviews.

12

142. Defendant excluded Plaintiff Satchell from “informal” email buddy lists

13

used by Regional, District and Station Managers to communicate relevant operating procedures

14

and corporate advancement opportunities and to informally discuss managerial issues.

15

143. Defendant provided inferior training to Plaintiff Satchell compared with

16

similarly situated non-Minority employees, adversely affecting his ability to obtain a promotion.

17

Defendant failed to provide Plaintiff Satchell with the level of training provided to Plaintiff

18

Satchell’s non-Minority peer managers with respect to particular operational indices in Plaintiff

19

Satchell’s facility. Defendant also failed to sufficiently staff Plaintiff Satchell’s workgroup so

20

that objectives could be met in accordance with Defendant’s expectations. By contrast,

21

Defendant provided Plaintiff Satchell’s non-Minority peer managers with proper staffing or

22

assigned employees from other workgroups to assist the workgroups of non-Minority employees.

23

144. Defendant discriminated against Plaintiff Satchell by terminating Plaintiff

24

for conduct for which non-Minority employees were not similarly terminated. In March 2002,

25

Defendant had an interim manager issue Plaintiff Satchell a third documented disciplinary action

26

within a 12- month period, and immediately terminated his employment. Defendant disciplined

27

and terminated Plaintiff Satchell for time card falsification. The time card “falsification” forming

28

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 35 of 52

1 the basis for the termination was Plaintiff Satchell’s cancellation of employee minimum hours in

2 December 2001 that Plaintiff Satchell performed upon directives from Matthews and Seymour.

3 Plaintiff Satchell had objected to canceling the minimum hours without an employee waiver.

4

145. On August 28, 2002, Defendant refused to rehire Plaintiff Satchell as an

5 Operations Manager after an Appeals Board in Memphis, Tennessee refused to overturn its

6 discriminatory discipline and wrongful termination actions. In April 2002, Plaintiff Satchell had

7 filed an internal discrimination complaint, as well as a GFT request in connection with his

8 discriminatory discipline, promotion, compensation, and wrongful termination claims dating from

9 August 2001 through Plaintiff Satchell’s termination. As part of his appeal, Plaintiff Satchell

10 submitted facts supporting his claims of differential treatment and discrimination by Defendant.

11 Defendant has rehired and overturned unfair actions against non-Minority employees upon the

12 basis of much less credible information than that provided by Plaintiff Satchell.

13

146. Defendant retaliated against Plaintiff Satchell for complaining of

14 discrimination. After Defendant terminated Plaintiff Satchell’s employment in April 2002,

15 Plaintiff filed a race discrimination and wrongful termination complaint against Defendant with

16 the California Department of Fair Employment and Housing. In December 2002, Plaintiff

17 Satchell filed a civil complaint for race discrimination in Superior Court. In response to Plaintiff

18 Satchell’s complaints, Defendant has engaged in a pattern of making defamatory statements

19 against Plaintiff Satchell to employers seeking to hire Plaintiff Satchell. As a result of

20 Defendant’s defamatory statements, Plaintiff Satchell had great difficulty in securing employment

21 after his termination by Defendant. On numerous occasions, prospective employers successfully

22 completed several rounds of interviews with Plaintiff Satchell, commended Plaintiff Satchell on

23 his presentation and employment record, indicated satisfaction with his references, and provided

24 Plaintiff Satchell with strong indication of their interest in employing him. However, upon

25 speaking with or receiving letters from Defendant regarding Plaintiff Satchell, the employers

26 declined to hire Plaintiff Satchell. In June 2002, Airborne Express declined to hire Plaintiff

27 Satchell after Defendant defamed Plaintiff Satchell in retaliation for filing a complaint. Yellow

28 Transportation similarly declined to hire Plaintiff Satchell after Defendant’s retaliatory actions.

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 36 of 52

1 Further, after speaking with Defendant in December 2002, Coca-Cola Company refused to hire

2 Plaintiff Satchell after 6 successful interviews from August 2002 to December 2002.

3

147. In addition to the foregoing, Plaintiff Satchell has experienced disparate

4 treatment on the basis of race with respect to many employment practices by Defendant.

5

148. Plaintiff Satchell filed a timely charge of discrimination with the EEOC on

6 May 6, 2003, attached hereto as Exhibit “H,” which was automatically cross- filed with the

7 DFEH. Plaintiff Satchell has received Notices of Right to Sue from the EEOC and the DFEH.

8

Kalini Boykin

9

A. Class Claims

10

149. Plaintiff Boykin was hired by Defendant in approximately May 1995 as a

11 casual, part-time Handler at the Oakland Hub. Despite repeated requests for available permanent

12 and full-time positions, Defendant hired and/or promoted many less senior non-Minority

13 individuals to permanent positions before Defendant gave Plaintiff Boykin a permanent position.

14 For example, in approximately June 1997, Plaintiff Boykin applied for the full- time position of

15 Control Room Agent at the Oakland Hub; however, Defendant passed her over in favor of a

16 subsequently hired and less experienced, non-African American.

17

150. Plaintiff Boykin also interviewed for numerous other full- time positions

18 before she was finally promoted to a full- time Truck Control Agent position in January 1998.

19 Other non-Minority employees with similar qualifications and experience were promoted to this

20 position sooner than Plaintiff Boykin.

21

151. Plaintiff Boykin also was rarely permitted to earn overtime hours, while

22 non-Minority employees were permitted to work overtime when necessary, earning wages at the

23 higher overtime rate.

24

152. In 1999, Plaintiff Boykin was promoted to an RTD Driver position after

25 several unsuccessful attempts to obtain the promotion despite being qualified. As in her previous

26 positions, Plaintiff Boykin excelled as an RTD Driver. She received a consistent 7.0 out of 7.0 on

27 her performance reviews. Plaint iff Boykin also excelled in Defendant’s ASPIRE management

28 training program. On each of the three program assessments, (i) the Quantitative Assessment, (ii)

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CASE NO. C 03-2659 SI; C 03-2878 SI

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1 the Psychological Assessment, and the (iii) Peer Assessment, Plaintiff Boykin scored the highest

2 possible grade, 5 on a scale of 5.

3

153. In May 2000, Plaintiff Boykin applied for one of two Operations Manager

4 positions at the San Leandro Facility. Despite Plaintiff Boykin’s superior qualifications and the

5 strong recommendation of her manager, Defendant, including specifically Senior Manager Robert

6 Montez and Regional Vice President Michael Pigors, passed over Plaintiff Boykin in favor of two

7 less experienced and less qualified non-Minority applicants, Carl Bowersmith and Mark Azevedo.

8

154. Because of Plaintiff Boykin’s superior qualifications, Defendant

9 improperly conducted the interviews so as to minimize the advantages that Plaintiff Boykin

10 possessed over the two non-Minority applicants. Contrary to Defendant’s policy, Defendant

11 conducted the interviews at separate locations and with separate panels.

12

155. In response to the discriminatory hiring procedures, Plaintiff Boykin filed a

13 GFT. After an investigation, Defendant was directed to conduct the interviews again, and

14 interviews were scheduled for the following week at another facility before the same panel.

15

156. At the second interview, Defendant once again selected Bowersmith and

16 Azevedo for the two Operations Manager positions. Defendant was unable to explain why

17 Bowersmith and Azevedo were more qualified than Plaintiff Boykin when she raised the issue

18 with manager Montez.

19

157. After being passed over a second time, Plaintiff Boykin filed another GFT

20 request together with an EEO discrimination complaint. Defendant failed to properly investigate

21 Plaintiff Boykin’s discrimination complaint. Even though Defendant scheduled an arbitration to

22 explore Plaintiff Boykin’s allegations, they failed to follow up or report any findings to Plaintiff

23 Boykin. Moreover, no one ever contacted Plaintiff Boykin from Employee Relations at

24 Defendant’s Memphis headquarters to discuss the complaint with Plaintiff Boykin. In fact,

25 Plaintiff Boykin never received a response to her EEO complaint even though she has never

26 withdrawn it.

27

158. Plaintiff Boykin is informed and believes, and thereupon alleges, that she

28 has been compensated less than similarly situated non-Minorities. Even after Plaintiff Boykin

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 38 of 52

1 ultimately was made a manager after several attempts, Defendant continued to discriminate

2 against her on the basis of race. While Defendant paid Carl Bowersmith a salary in the first

3 quartile for managers in their grade (Level 25), Plaintiff Boykin was paid at the lowest rate in

4 Level 25. Plaintiff was paid at a lower rate despite being assigned greater management

5 responsibilities than the two non-Minority managers. Upon becoming a manager, Plaintiff Boykin

6 assumed all the responsibilities of the ma nager who had stepped down and more. She was

7 responsible for the PM operations for RTD drivers in the entire South Bay and mid-Peninsula

8 service area, which includes both San Francisco stations, the South San Francisco Facility, Palo

9 Alto, the San Jose Facility, the Santa Clara Facility, the Sunnyvale Facility, the Oakland Hub, and

10 the San Jose and San Francisco Ramps. The operations for which she was responsible lasted from

11 3:00 PM to midnight. Plaintiff Boykin was responsible for over 100 routes daily and 24

12 employees.

13

159. By contrast, Bowersmith was given a relatively easy management

14 assignment. Bowersmith was made responsible for the Weekend Operation, a 20-hour operation

15 on Saturdays and Sundays. The Weekend Operation involves nine employees, all moving freight

16 from the San Leandro Facility to the Oakland Hub.

17

160. Defendant also discriminated against Plaintiff Boykin by failing to provide

18 management support to Plaintiff Boykin, making it more difficult for her to perform her job

19 duties. Montez spent little time with Plaintiff Boykin, instead focusing his attention on assisting

20 Bowersmith to develop as a manager.

21

161. Despite her lack of support from Defendant, Plaintiff Boykin excelled in

22 her management responsibilities. In her first year as a manager, Plaintiff Boykin turned the

23 extremely uncooperative workgroup that she inherited from Mike Kelly, the previous non-

24 Minority manager, into a highly productive group. In that first year, Plaintiff Boykin received a 25 Survey Feedback Score (“SFA”) of 97 from her group, and a SFA score of 94 in the second year.3

26 Moreover, Plaintiff Boykin received a leadership average of 4.9 in her first year and one of 4.7 in

27
3 A SFA is an hourly employee’s review of his or her manager. SFA are considered in determining a manager’s
28 promotability and performance reviews.

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 39 of 52

1 her second year. Plaintiff Boykin also received a commendation from the Senior Vice President

2 for her management abilities.

3

162. Nevertheless, Defendant took additional steps to undermine her

4 advancement in Defendant’s management ranks. Montez refused to timely perform Plaintiff

5 Boykin’s performance reviews, which are essential to pay rate and grade level increases. Plaintiff

6 Boykin was scheduled for a 3- month performance review prior to taking a maternity leave.

7 Though Montez timely performed the performance reviews for Bowersmith, he delayed Plaintiff

8 Boykin’s review until she returned from her maternity leave. At that time, he gave Plaintiff

9 Boykin a three- month review and the two non-Minority managers six- month reviews.

10

163. Montez also discriminated against Plaintiff Boykin by providing her with

11 an unreasonably low review of 2.8. Defendant initially attempted to give Plaintiff Boykin a rating

12 of 2.5, but Plaintiff Boykin rebutted each and every basis for Montez’s grading. Defendant rated

13 Plaintiff Boykin below 3.0, despite her exemplary performance as reflected in her SFA scores, in

14 order to preclude her from receiving any pay or grade level increases. By contrast, the two non-

15 Minority managers were given higher scores and pay increases. Defendant has routinely delayed

16 Plaintiff Boykin’s pay and grade level increases, requiring her to take extra measures in order to

17 receive the same benefits as the two non-Minority managers.

18

164. In March 2001, Defendant continued its discrimination against Plaintiff

19 Boykin by disciplining her for a trivial matter for which it has routinely refused to discipline non-

20 Minority employees. Montez informed Plaintiff Boykin that she had failed to provide for an ad

21 hoc, unscheduled pick-up for an institutional customer. As a result of attempting to assure that the

22 Sacramento route was covered in light of Defendant’s failure to provide her with sufficient RTD

23 Drivers, Plaintiff Boykin had inadvertently missed the order. However, the AM Operations

24 Manager with Plaintiff Boykin’s responsibilities, had the order picked up the next morning. Since

25 the package was an economy order, there was no failure by Defendant to meet its delivery

26 deadlines.

27

165. As a result of the missed pick up, Montez threatened to give Plaintiff

28 Boykin a written warning letter. Defendant’s standard disciplinary practice is to provide written

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 40 of 52

1 warning letters only after an employee has committed previous acts deserving discipline.

2 Defendant has not provided documented counseling to non-Minority managers or employees

3 upon their first offense. In response to Plaintiff Boykin’s pleas for fairness, Montez indicated that

4 he would give Plaintiff Boykin only a verbal warning if she would prepare a corrective action

5 plan to address the oversight.

6

166. Plaintiff Boykin submitted the action plans as requested and was informed

7 by District Manager Robin VanGalder and Montez that it was insufficient. Defendant insisted on

8 giving Plaintiff Boykin a documented counseling despite earlier assurances that she would only

9 get a verbal warning. Furthermore, VanGalder and Montez informed Plaintiff Boykin that she had

10 been guilty of “gross leadership failure” and that she was a bad manager. Non-Minority managers

11 have frequently failed to have packages picked up on time yet have not been disciplined, much

12 less given OLCCs or written warnings or accused of “gross leadership failure.”

13

B. Individual Claims for Working Conditions and Retaliation

14

167. Defendant assigned more burdensome job duties and shifts to Plaintiff

15 Boykin than to non-Minority employees, thus making it more difficult for her to perform as well

16 as her non-Minority peers. While a part-time Handler, Defendant discriminated against Plaintiff

17 Boykin on the basis of race by routinely assigning her to work on the busiest conveyor belts, or

18 “slides” as they are called at the Oakland Hub, where thousands of packages are processed. By

19 contrast, many stronger non-Minority employees were permitted to work on less taxing slides

20 where packages numbered in the hundreds, not thousands.

21

168. In November 2003, after Plaintiff Boykin had filed her charge with the

22 EEOC, Defendant retaliated against Plaintiff Boykin by changing her schedule from her regular

23 time of 1:30 PM to 10:30 PM to a more undesirable shift, 1:00 AM to 10:00 AM. Defendant did

24 not adversely change the hours of the non-Minority Operations Managers with the same seniority

25 as Plaintiff Boykin.

26

169. Defendant has further retaliated against Plaintiff Boykin for complaining

27 about race-based discrimination, for filing a charge with the EEOC, and for participating in this

28 lawsuit, by suspending her without cause and failing to offer her a suitable position after a

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 41 of 52

1 medical leave of absence.

2

170. In addition to the foregoing, Plaintiff Boykin has experienced disparate

3 treatment on the basis of race with respect to many employment practices by Defendant.

4

171. Plaintiff Boykin filed a timely charge of discrimination with the EEOC on

5 May 6, 2003, and filed a timely charge with the DFEH in July 31, 2002, attached hereto as

6 Exhibit “I.” Plaintiff Boykin has received Notices of Right to Sue from the EEOC and from the

7 DFEH. Plaintiff Boykin supplemented this charge with a retaliation claim dated October 10,

8 2005 and has requested a Notice of Right to Sue.

9

FIRST CLAIM FOR RELIEF

10

VIOLATION OF TITLE VII—CLASS CLAIMS

11

172. This claim is brought on behalf of all Plaintiffs and the class of Minority

12 Employees and the class of African American Lower-Level Managers.

13

173. The class period for the Minority Employee Class for this Claim for Relief

14 is from June 20, 2002 through the date of judgment. The class period for the African American

15 Lower-Level Manager Class for this Claim for Relief is from July 10, 2002 through the date of

16 judgment.

17

174. Plaintiffs Satchell, Boykin, Brown, Gonzales, Guerrero, Hutchins, Merritt,

18 Smith and Stevenson filed timely charges of discrimination with the Equal Employment

19 Opportunity Commission, received right to sue letters4, and timely filed the instant claim.

20

175. The foregoing conduct violates Title VII of the Civil Rights Act of 1964,

21 42 U.S.C. §§ 2000(e), et seq.

22

A. Disparate Impact

23

176. As to disparate impact, Plaintiffs incorporate by reference the allegations of

24 paragraphs 1 through 31, 33 through 66, 72 through 77, 81 through 87, 91 through 98, 102

25 through 106, 110 through 117, 123 through 128, 132 through 140, and 149 through 166, above, as

26 though fully set forth herein.

27

177. Defendant has maintained a system for making decisions about

28 4 Plaintiff Merritt has requested a right to sue letter.

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 42 of 52

1 promotions, assignments (as to the Minority Employee Class), compensation, and discipline

2 which is excessively subjective and which has had a disparate impact on Plaintiffs, the Minority

3 Employee Class, and the African American Lower-Level Manager Class. This system cannot be

4 justified by business necessit y, but even if it could be so justified, less discriminatory alternatives

5 exist that could equally serve any alleged necessity. Defendant’s policies and practices that have

6 a disparate impact on Plaintiffs and the classes they represent are alleged in paragraph 43 above.

7

178. Defendant’s discriminatory policies and practices as described above have

8 denied Plaintiffs and the classes they represent promotions, desirable job assignments (as to the

9 Minority Employee Class), and compensation to which they were and are entitled; have caused

10 Plaintiffs and the classes they represent to be disciplined when they should not have been,

11 resulting in the loss of past and future wages and other job benefits; and have caused Plaintiffs

12 and the classes they represent to suffer humiliation, embarrassment and emotional distress.

13

B. Disparate Treatment

14

179. As to disparate treatment, Plaintiffs incorporate by reference the allegations

15 of paragraphs 1 through 178, above, as though fully set forth herein.

16

180. Defendant has engaged in a pattern and practice of intentional

17 discrimination against Plaintiffs and the classes in promotions, assignments (as to the Minority

18 Employee Class), compensation, and discipline.

19

181. Plaintiffs request relief as to both their disparate impact and disparate

20 treatment claims as provided in the Prayer for Relief below.

21 SECOND CLAIM FOR RELIEF
22 VIOLATION OF TITLE VII—NON-CLASS CLAIMS FOR DISPARATE TREATMENT

23
182. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 24
181, above, as though fully set forth herein. This claim is brought on behalf of the named 25
Plaintiffs individually for their non-class claims. 26
183. Defendant intentionally discriminated against named Plaintiffs Brown, 27
Gonzales, Merritt, Smith, Stevenson, Satchell, and Boykin on the basis of their race. 28

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 43 of 52

1

184. Defendant subjected named Plaintiffs Brown, Gonzales, Merritt, Smith,

2 Stevenson, Satchell, and Boykin to a racially hostile work environment.

3

185. Defendant intentionally discriminated against Plaintiff Brown by

4 subjecting her to more burdensome work conditions than similarly situated non-Minority

5 employees, subjecting her to harassment, and retaliating against her for filing a discrimination

6 complaint.

7

186. Defendant intentionally discriminated against Plaintiff Gonzales by failing

8 to rehire him from disability.

9

187. Defendant intentionally discriminated against Plaintiff Merritt by singling

10 him out for discipline and by denying him leave without pay.

11

188. Defendant intentionally discriminated against Plaintiff Smith by retaliating

12 against him for filing a discrimination complaint and terminating him.

13

189. Defendant intentionally discriminated against Plaintiff Stevenson by

14 subjecting him to harassment.

15

190. Defendant intentionally discriminated against Plaintiff Satchell by

16 retaliating against him for filing a discrimination complaint and terminating him.

17

191. Defendant intentionally discriminated against Plaintiff Boykin by

18 subjecting her to more burdensome work conditions than similarly situated non-Minority

19 employees.

20

192. Defendant’s discriminatory and retaliatory practices have resulted in the

21 loss of past and future wages and other job benefits, and have caused Plaintiffs to suffer

22 humiliation, embarrassment and emotional distress.

23

193. Plaintiffs request relief as to both their disparate impact and disparate

24 treatment claims as provided in the Prayer for Relief below.

25

THIRD CLAIM FOR RELIEF

26

VIOLATION OF 42 U.S.C. § 1981—CLASS CLAIMS

27

194. Plaintiffs incorporate by reference the allegations of paragraphs 1 through

28 193, above, as though fully set forth herein.

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 44 of 52

1

195. This claim is brought on behalf of all Plaintiffs and the Minority Employee

2 Class and the African American Lower-Level Manager Class.

3

196. The class period for both the Minority Employee Class and the African

4 American Lower-Level Manager Class for this Claim for Relief is from October 17, 1999 to the

5 date of judgment in this action.

6

197. FedEx Express has engaged in a pattern and practice of intentional

7 discrimination against Plaintiffs and the classes with respect to initial assignments (as to the

8 Minority Employee Class only), promotion, compensation, and discipline.

9

198. The foregoing conduct constitutes illegal intentional discrimination with

10 respect to the making, performance, modification, and termination of contracts prohibited by

11 42 U.S.C. § 1981.

12

199. Plaintiffs request relief as provided in the Prayer for Relief below.

13

FOURTH CLAIM FOR RELIEF

14

VIOLATION OF 42 U.S.C. § 1981—NON-CLASS CLAIMS

15

200. Plaintiffs incorporate the allegations of paragraphs 1 through 199, above,

16 as though full set forth herein.

17

201. This claim is brought on behalf of the named Plaintiffs individually for

18 their non-class claims.

19

202. Defendant intentionally discriminated against named Plaintiffs Brown,

20 Gonzales, Merritt, Smith, Stevenson, Satchell, and Boykin on the basis of their race.

21

203. Defendant intentionally discriminated against Plaintiff Brown by

22 subjecting her to more burdensome work cond itions than similarly situated non-Minority

23 employees, subjecting her to harassment, and retaliating against her for filing a discrimination

24 complaint.

25

204. Defendant intentionally discriminated against Plaintiff Gonzales by failing

26 to rehire him from disability.

27

205. Defendant intentionally discriminated against Plaintiff Merritt by singling

28

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 45 of 52

1 him out for discipline and by denying him leave without pay.

2

206. Defendant intentionally discriminated against Plaintiff Smith by retaliating

3 against him for filing a discrimination complaint and terminating him.

4

207. Defendant intentionally discriminated against Plaintiff Stevenson by

5 subjecting him to harassment.

6

208. Defendant intentionally discriminated against Plaintiff Satchell by

7 retaliating against him for filing a discrimination complaint and terminating him.

8

209. Defendant intentionally discriminated against Plaintiff Boykin by

9 subjecting her to more burdensome work conditions than similarly situated non-Minority

10 employees.

11

210. Defendant’s discriminatory and retaliatory practices have resulted in the

12 loss of past and future wages and other job benefits, and have caused Plaintiffs to suffer

13 humiliation, embarrassment and emotional distress.

14

211. Plaintiffs request relief as to both their disparate impact and disparate

15 treatment claims as provided in the Prayer for Relief below.

16

FIFTH CLAIM FOR RELIEF

17

VIOLATION OF CALIFORNIA FEHA-CLASS CLAIMS

18

212. This claim is brought on behalf of all members of the classes who are or

19 were employed by Defendant in California and/or who reside in California, including all the

20 named Plaintiffs except for Plaintiff Merritt.

21

213. The class period for the Minority Employee Class for this Claim for Relief

22 is from June 13, 2001 through the date of judgment in this action. The class period for the

23 African American Lower-Level Manager Class for this Claim for Relief is from July 31, 2001

24 through the date of judgment in this action.

25

214. Plaintiffs Satchell, Boykin, Brown, Gonzales, Guerrero, Hutchins, Smith,

26 and Stevenson filed timely charges of discrimination with the California Fair Employment and

27 Housing, received right to sue letters, and timely filed the instant claim. Plaintiffs have therefore

28 exhausted their administrative remedies and fulfilled all conditions precedent to suit.

477941.1

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 46 of 52

1

A. Disparate Impact

2

215. As to disparate impact, Plaintiffs incorporate by reference the allegations of

3 paragraphs 1 through 31, 33 through 66, 72 through 77, 81 through 87, 91 through 98, 102

4 through 106, 110 through 117, 123 through 128, 132 through 140, 149 through 166, and 172

5 through 214, above, as though fully set forth herein.

6

216. Defendant has maintained a system for making decisions about

7 promotions, assignments (as to the Minority Employee Class), compensation, and discipline

8 which is excessively subjective and which has had a disparate impact on Plaintiffs, the Minority

9 Employee Class, and the African American Lower-Level Manager Class. This system cannot be

10 justified by business necessity, but even if it could be so justified, less discriminatory alternatives

11 exist that could equally serve any alleged necessity. Defendant’s policies and practices that have

12 a disparate impact on Plaintiffs and the classes they represent are alleged in paragraph 43 above.

13

217. Defendant’s discriminatory policies and practices as described above have

14 denied Plaintiffs and the classes they represent promotions, desirable job assignments (as to the

15 Minority Employee Class), and compensation to which they were and are entitled; have caused

16 Plaintiffs and the classes they represent to be disciplined when they should not have been,

17 resulting in the loss of past and future wages and other job benefits; and have caused Plaintiffs

18 and the classes they represent to suffer humiliation, embarrassment and emotional distress.

19

B. Disparate Treatment

20

218. As to disparate treatment, Plaintiffs incorporate by reference the allegations

21 of paragraphs 1 through 217, above, as though fully set forth herein.

22

219. Defendant has engaged in a pattern and practice of intentional

23 discrimination against Plaintiffs and the classes in promotions, assignments (as to the Minority

24 Employee Class), compensation, and discipline.

25

220. The foregoing conduct by Defendant against the named Plaintiffs and

26 members of the classes residing or employed in California violates Section 12940, et seq., of the

27 California Government Code, known as the Fair Employment and Housing Act (“FEHA”).

28
477941.1

221.

As a result of such violations of FEHA, the named Plaintiffs and members

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SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
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Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 47 of 52

1 of the classes residing or employed in California have suffered the loss of past and future wages

2 and other job benefits, and have suffered humiliation, embarrassment and emotional distress.

3

222. Plaintiffs request relief as to both their disparate impact and disparate

4 treatment claims as provided in the Prayer for Relief below.

5

SIXTH CLAIM FOR RELIEF

6

VIOLATION OF CALIFORNIA FEHA—NON-CLASS CLAIMS

7

223. Plaintiffs incorporate paragraphs incorporate by reference the allegations of

8 paragraphs 1 through 222, above, as though fully set forth herein.

9

224. This claim is brought on behalf of the named Plaintiffs employed and/or

10 residing in California individually for their non-class claims.

11

225. Defendant intentionally discriminated against named Plaintiffs Brown,

12 Gonzales, Smith, Stevenson, Satchell, and Boykin on the basis of their race.

13

226. Defendant subjected named Plaintiffs Brown, Gonzales, Smith, Stevenson,

14 Satchell, and Boykin to a racially hostile work environment.

15

227. Defendant intentionally discriminated against Plaintiff Brown by

16 subjecting her to more burdensome work conditions than similarly situated non-Minority

17 employees, subjecting her to harassment, and retaliating against her for filing a discrimination

18 complaint.

19

228. Defendant intentionally discriminated against Plaintiff Gonzales by failing

20 to rehire him from disability.

21

229. Defendant intentionally discriminated against Plaintiff Smith by retaliating

22 against him for filing a discrimination complaint and terminating him.

23

230. Defendant intentionally discriminated against Plaintiff Stevenson by

24 subjecting him to harassment.

25

231. Defendant intentionally discriminated against Plaintiff Satchell by

26 retaliating against him for filing a discrimination complaint and terminating him.

27

232. Defendant intentionally discriminated against Plaintiff Boykin by

28

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Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 48 of 52

1 subjecting her to more burdensome work conditions than similarly situated non-Minority

2 employees.

3

233. Defendant’s discriminatory and retaliatory practices have resulted in the

4 loss of past and future wages and other job benefits, and have caused Plaintiffs to suffer

5 humiliation, embarrassment and emotional distress.

6

234. Plaintiffs request relief as provided in the Prayer for Relief below.

7

RELIEF ALLEGATIONS

8

235. Plaintiffs and the classes they represent have no plain, adequate or

9 complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in

10 this action is the only means of securing complete and adequate relief. Plaintiffs and the classes

11 they represent are now suffering and will continue to suffer irreparable injury from Defendant ’s

12 discriminatory acts and omissions.

13

236. The actions on the part of Defendant have caused and continue to cause

14 Plaintiffs and the classes substantial losses in earnings, other compensation, desirable job

15 assignments, promotions, and other employment benefits, in an amount to be determined

16 according to proof.

17

237. The actions on the part of Defendant have caused Plaintiffs and the classes

18 to suffer humiliation, embarrassment and emotional distress.

19

238. Defendant acted or failed to act as herein alleged with malice or reckless

20 indifference to the protected rights of Plaintiffs and members of the classes. Plaintiffs and

21 members of the classes are thus entitled to recover punitive damages in an amount to be

22 determined according to proof.

23

PRAYER FOR RELIEF

24

WHEREFORE, Plaintiffs, and the classes, pray for relief as follows:

25

1. Certification of the case as a class action on behalf of the proposed Plaintiff

26 classes, and designation of Plaintiffs as representatives of the classes and their counsel of record

27 as Class Counsel;

28
477941.1

2. Damages and equitable relief for all harm the individual Plaintiffs and the

- 47 -

SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 49 of 52

1 classes have sustained as a result of Defendant ’s conduct, including back pay, front pay,

2 compensatory damages for emotional distress, and general and special damages for lost

3 compensation and job benefits that they would have received but for the discriminatory practices

4 of Defendant, and punitive damages, according to proof;

5

3. For Plaintiffs’ individual, non-class claims, damages and equitable relief

6 for all harm that Plaintiffs have sustained as a result of Defendant’s conduct, including

7 reinstatement, back pay, front pay, general and specific damages for lost compensation and job

8 benefits they would have received but for the discriminatory practices of Defendant,

9 compensatory damages for emotional distress, and punitive damages, according to proof;

10

4. Exemplary and punitive damages in an amount commensurate with

11 Defendant’s ability to pay and to deter future discriminatory conduct;

12

5. A preliminary and permanent injunction against Defendant and its

13 directors, officers, owners, agents, successors, employees and representatives, and any and all

14 persons acting in concert with it, from engaging in each of the unlawful practices, policies,

15 customs and usages set forth herein;

16

6. A declaratory judgment that the practices complained of in this complaint

17 are unlawful and violate 42 U.S.C. § 2000(e), et seq., Title VII of the Civil Rights Act of 1964e;

18

7. A declaratory judgment that the practices complained of in this complaint

19 are unlawful and violate 42 U.S.C. § 1981;

20

8. A declaratory judgment that the practices complained of in this complaint

21 are unlawful and violate Section 12940, et seq., of the California Government Code, known as the

22 Fair Employment and Housing Act;

23

9. An order restoring and/or promoting Plaintiffs and the classes to their

24 rightful positions;

25

10. An order assigning Plaintiffs and the classes to those jobs they would now

26 be occupying but for Defendant’s discriminatory practices;

27

11. An order adjusting the wage rates and benefits for Plaintiffs and the classes

28 to that level which Plaintiffs and the classes would be enjoying but for Defendant ’s

477941.1

- 48 -

SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 50 of 52

1 discriminatory practices;

2

11. Costs incurred, including reasonable attorne ys’ fees, to the extent allowable

3 by law;

4

12. Pre-Judgment and Post-Judgment interest, as provided by law; and

5

13. Such other and further legal and equitable relief as this Court deems

6 necessary, just and proper.

7 Dated: October 12, 2005
8
9

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

10

By: /s/ James M. Finberg______

James M. Finberg

11

Todd M. Schneider (SBN 158253) 12 Guy B. Wallace (SBN 176151)

James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452)

13 Joshua Konecky (SBN 182897) SCHNEIDER & WALLACE

Lexi J. Hazam (SBN 224457) Chimène I. Keitner (SBN 226948)

14 180 Montgomery Street, Suite 2000 Nirej S. Sekhon (SBN 213358)

San Francisco, CA 94104

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

15 Telephone: (415) 421-7100

275 Battery Street, 30th Floor

16 Facsimile: (415) 421-7105

San Francisco, CA 94111-3339 Telephone: (415) 956-1000

17 JOHN BURRIS (SBN 69888) 7677 Oakport Blvd., Suite 1120

Facsimile: (415) 956-1008

18 Oakland, CA 94612

KAY MCKENZIE PARKER (SBN 143140)

Telephone: (510) 839-5210

703 Market Street, Suite 1401

19 Facsimile: (510) 839-3882

San Francisco, CA 94103

20

Telephone: (415) 227-9622 MICHAEL S. DAVIS (SBN 160045) Facsimile: (415) 227-4522

21 345 Hill Street San Francisco, CA 94109

WAUKEEN Q. McCOY (SBN 168228)

22 Telephone: (415) 282-4315

703 Market Street, Suite 1407

Facsimile: (415) 358-5576 23

San Francisco, CA 94103 Telephone: (415) 675-7705

24

Facsimile: (415) 675-2530

25

Class Counsel and Counsel for the Plaintiffs

26

27

28
477941.1

- 49 -

SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 51 of 52

1 discriminatory practices;

2

11. Costs incurred, including reasonable attorne ys’ fees, to the extent allowable

3 by law;

4

12. Pre-Judgment and Post-Judgment interest, as provided by law; and

5

13. Such other and further legal and equitable relief as this Court deems

6 necessary, just and proper.

7 Dated: October 12, 2005
8
9

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

10

By: /s/ James M. Finberg______

James M. Finberg

11

Todd M. Schneider (SBN 158253) 12 Guy B. Wallace (SBN 176151)

James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452)

13 Joshua Konecky (SBN 182897) SCHNEIDER & WALLACE

Lexi J. Hazam (SBN 224457) Chimène I. Keitner (SBN 226948)

14 180 Montgomery Street, Suite 2000 Nirej S. Sekhon (SBN 213358)

San Francisco, CA 94104

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

15 Telephone: (415) 421-7100

275 Battery Street, 30th Floor

16 Facsimile: (415) 421-7105

San Francisco, CA 94111-3339 Telephone: (415) 956-1000

17 JOHN BURRIS (SBN 69888) 7677 Oakport Blvd., Suite 1120

Facsimile: (415) 956-1008

18 Oakland, CA 94612

KAY MCKENZIE PARKER (SBN 143140)

Telephone: (510) 839-5210

703 Market Street, Suite 1401

19 Facsimile: (510) 839-3882

San Francisco, CA 94103

20

Telephone: (415) 227-9622 MICHAEL S. DAVIS (SBN 160045) Facsimile: (415) 227-4522

21 345 Hill Street San Francisco, CA 94109

WAUKEEN Q. McCOY (SBN 168228)

22 Telephone: (415) 282-4315

703 Market Street, Suite 1407

Facsimile: (415) 358-5576 23

San Francisco, CA 94103 Telephone: (415) 675-7705

24

Facsimile: (415) 675-2530

25

Class Counsel and Counsel for the Plaintiffs

26

27

28
477941.1

- 49 -

SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91 Filed 10/12/2005 Page 52 of 52

1 DEMAND FOR JURY TRIAL

2 Plaintiffs hereby demand a jury trial as provided by Rule 38(a) of the Federal

3 Rules of Civil Procedure.

4

Dated: October 12, 2005 5

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

6

7

By: /s/ James M. Finberg_____

James M. Finberg

8

Todd M. Schneider (SBN 158253) 9 Guy B. Wallace (SBN 176151)

James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452)

10

Joshua Konecky (SBN 182897) SCHNEIDER & WALLACE

Lexi J. Hazam (SBN 224457) Chimène I. Keitner (SBN 226948)

11 180 Montgomery Street, Suite 2000 Nirej S. Sekhon (SBN 213358)

San Francisco, CA 94104

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

12 Telephone: (415) 421-7100

275 Battery Street, 30th Floor

Facsimile: (415) 421-7105 13

San Francisco, CA 94111-3339 Telephone: (415) 956-1000

14

JOHN BURRIS (SBN 69888) 7677 Oakport Blvd., Suite 1120

Facsimile: (415) 956-1008

15 Oakland, CA 94612 Telephone: (510) 839-5210

KAY MCKENZIE PARKER (SBN 143140) 703 Market Street, Suite 1401

16 Facsimile: (510) 839-3882

San Francisco, CA 94103

Telephone: (415) 227-9622 17 MICHAEL S. DAVIS (SBN 160045) Facsimile: (415) 227-4522

18

345 Hill Street San Francisco, CA 94109

WAUKEEN Q. McCOY (SBN 168228)

19 Telephone: (415) 282-4315 Facsimile: (415) 358-5576
20

703 Market Street, Suite 1407 San Francisco, CA 94103 Telephone: (415) 675-7705

Facsimile: (415) 675-2530 21

22

Class Counsel and Counsel for the Plaintiffs

23

24

25

26

27

28
477941.1

- 50 -

SECOND CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 91-2 Filed 10/12/2005 Page 1 of 4
EXHIBIT A

Case 3:03-cv-02878 Document 91-2 Filed 10/12/2005 Page 2 of 4

Case 3:03-cv-02878 Document 91-2 Filed 10/12/2005 Page 3 of 4

Case 3:03-cv-02878 Document 91-2 Filed 10/12/2005 Page 4 of 4

Case 3:03-cv-02878 Document 91-3 Filed 10/12/2005 Page 1 of 4
EXHIBIT B

Case 3:03-cv-02878 Document 91-3 Filed 10/12/2005 Page 2 of 4

Case 3:03-cv-02878 Document 91-3 Filed 10/12/2005 Page 3 of 4

Case 3:03-cv-02878 Document 91-3 Filed 10/12/2005 Page 4 of 4

Case 3:03-cv-02878 Document 91-4 Filed 10/12/2005 Page 1 of 5
EXHIBIT C

Case 3:03-cv-02878 Document 91-4 Filed 10/12/2005 Page 2 of 5

'. ::::~'-, ~""R.GEOF DISCRIMINATION

A.E.~'

CHARGE au'IEII

0". 18 .,..ai,~

~ t~ {r.1V.CY~Act. of '87t; S.t pr1vaa",ACt It~t

. .*

,

nt Dtfort

0 FfPA
mJ ~eoo

3110.6.202078

and EEOC

,~.

" "\

,'...: \

. .

~

(IN&/I~..._.U..

,.

, .'.,'

".".J.. .-
..' ~' .

...,. . . \-,.";"':.\,"Tv

\, :,..
. .

".. "... .. .

-I

~O~, g, 1~ EI.R~~YeA. LABORDRG~NI~TION, EMP~qY.EN1AGENCYAPPR(»11~E~HIP COMMITTEE,

.~.', .

AtE

D COLO.R,'.. 0" RZ ~10."""_l".}8ID. -JJ' 0, ~"iJ~ALO:"ll~"

DftETALIATI"

0 AGE

DDllA8llIn

DOYlluf

rnJ

-.

~
03/06/2002

:

DC eo8Tt.dl..

ARoTnICUolrARAa.Rb~ou(.tII'~O~1cNto.b' e~--

t 10.

."~ duo. t/,J)' 1995,. I began employment

at

Federal

press. I currently work as a Courier. r~h 6, 2002 and unt1l moat recently.

From approximately on May 23.2002.

I

9'8 repeatedly been disciplined b-a-Hr. Eugene McDonald.

E UJUr
05/23/2002
ACTIO.
!

. The reason6 Qlude but are
ples .iesing,

given to ae Cor the disclpline

not l1mlted. to. .l..ing

vaD

etc.

are varied and Bcanl. alr bill

I. I believe I have been d18crl~1nated

agalnst due to -7 race,

i.panic). in violation or Title'VII ot

Ri&hts Act

1964. 8.8 amended.

/'

.l/1-ff
/cJ~

.,.. "I thla ~ft4rD8 fill' ~tD 'It I tftl (iOC 8ad t.. $tate 8' WTMY. (8U IWcMMtfer lUte .. UG8~R8qi11I'fMntl)

1 AO,ncf, ., IAf. I -il1 .4¥~" t~ 88*iC181 It I e ... .r t.l.p~DI ..-b,r 884 OoDp8ratt fUIJJ -1t~ thI8 ...~na 0' .y ~""'a. ~ _OrdeN. ~ta t~I" .roelaures.

1a

l' .w'
tR8j

1

~

,.satrOwf8t'.1~tht~al,

I.t8.f,t

~re..a. tdile-1aro~'t1~8lMlt~tlM.t,.

ala,.. lRIder "Baltf of ptrJUTY tttat 1118 GOrrev1.

~. I""

61GNAT1I\E OF CalPLA1NAI(T

/]

8UBSCRIBEDAND SWOAHTO BEfORE ME THIS ~TE (_.til, Gay1M yeat')

IMV.

CHARGING PARTY COPY

Case 3:03-cv-02878 Document 91-4 Filed 10/12/2005 Page 3 of 5

-eE:CX:F_5~)

,

.

. .

CHARGE OF DISCRIMINATION

T'*bm"~by"~Ad~1874.

;-"

~ 8nd otw

S_~~Ad
bebw 'X,.,.,..;.- oW'* bWI.

ChargePresented To:
0 FEPA
.~ EEOC

Agency(les) Charge No(s): 37o-~OO3-o9677

He~.-... ~ AI...Uts.,

California DepartmentOf Fair Employment& Housing ~ or kICe~I . 'MY
HC8IP8 ID. ~ ~.. ~

8)d EEOC ~ d""

Ms. Cynthia Guerrero

(562) 699-5518

12-29-1975

S.,... AddI8SS

cay.Sta~ MIdZIPCode

9039 Pioneer Blvd J201 Santa Fe SprinAS, CA 90670

~. Named 15h

Labor Orgarmlon. ~

Agency.~

CcxmIMt88«. Stalem'LocalGoYemmenAt gencyTh8tI Belew

DIs~ ~

AQaNt Me «Others. (If mOle than - I.stIlJder PARTICULAR-SbekIw.)

No.~.. M~

Phon8No.~

AleeCode)

FEDERAL EXPRESS

500 or More

(800) 479.9957

Sltwl Adch..

Cty. ~ 8Itd ZP CCId8

9339 Ann St Santa f"_~prlngs. CA 90670

No.~.~.

~

~ No.(1IIctItleA/H co.-)

~~

car.s... ~ %PCG8

DIS~1Iaf

BASEDao. (CIIeCk~

box(8].)

[j] 0 0 0 0 RACE

ca..at

[XI 0 0 D RETALIATION

AGE

SEX

Ra/GDf 0ISA8IU1Y

NAT1ONAL ~QN
0nER(s,..cr,be'-.)

TtE PART1CU-ARSARE (11~

p.- " ~

dach

8'-1(.J):

i OA~)DISCRI~TION Eaft8st

TOOK PlACE L.-st
06-13-2003

I X I CONTNJWfGACTo.

SEE ATTACHED

JUN ] 8 2003

waIIt~ chIIwefiedwMbboll a...EEOC8Id'tie S18t8orlocalA8enC).'.any. II NOTMY - \\1!87ne~.sa.)'~ S,.. and~ AE::E;eyo~r':'=,' -~I=-nn-

I

. adviselie agendellfId18ngemy~ or~ rM1Ibear ndI..

.

~~.. ~ wth 118m~ theprocM88Iogfmy~ ~ ~

..

dedae wIdef' penalty 01 peIjury that the above Is ~ and awr8ct.

I .-ar« aIIrm !hat I have r8ad the ~ dIarge and ChatIt Is .-ue ~ tie best at my knowledge, ~fonnaUon end beief.
SIGNA~ ~ ~LAINANT

S~U8SC*RY8E.D,N.I.).)~

10 BEFOREMEms DATE

Case 3:03-cv-02878 Document 91-4 Filed 10/12/2005 Page 4 of 5
STATEMENT
EEOC CHARGE STATEMENT
I, CYN11IIA GUERRERO,stateasfollows:
I.
I am 27 yoarsof age. I am Hispanic. I hold Social Sccwitynumber514-76-35~4. My date of birth is 12-29-75. I reside at 9039Pioneer Blvd.. J201. SantaFe Springs, CA 90670. My telephonenumber is 818-355-4690.
2. My oomplaint is againstFedex (hereinafter"Respondentth which is located at 9339 Ann StreettSantaFe Springs. CA 90670. I beganmy employmentwith Respondmt on or about October 1995. My job classification is Courier. My immediatesupervisor is Eug~c McDonald.
3.
Respondentjs an entity willi1S or more employeesduring eachof the last 20 calendar weeks.
4.
I have beensubjectedto race-baseddisparatetreabnentby Fedex. including amongother things. discrimination with respect to compensatio~ promotions. and the tenus of conditions of my employment with Fedex, including but not limited to. unequaljob assignments.more hazardouswork conditions. unequal training opportunitiesandtho assignmentof more strenuous job duties.
I am inforltled and believe:that'RespondentbasaPattan and'practice ofdi saiinfi1ating againstpeople similarly situated to me, including 4isaimination in promotions,.compensation and the terms and conditions of anployment. I am fwth« infolmcd and believe that the idmispcaricmt oinnatthioenbwasaissaonf draisceth. e result of policies. p' l:Ocedureasndpractices. that have a disparate
s.
. During my employment at Fedcx, I haverepeatedlycomplainedto company officials regarding the discrimination. Despite thesecomplaints,Fedexofficials have done little or . nothing to addressmy concerns.
Page 1

Case 3:03-cv-02878 Document 91-4 Filed 10/12/2005 Page 5 of 5

STATEMENT

6.
Respondentbas retaliated againstme for complaining about race-baseddiscrimination.

1.

On or aboutSeptembe2r0,2002,I left work onmedicalleave. OnJanuary5. 2003.

FedExinfonnedmedlat I couldnot returnto work becauseI hadbeendisplacedfrom my

position. I contendthatthediscriminationcontinuesto thepresent,asI havenot beenallowedto returnto work, while odleremployeesha.vebeenaCcommodateadftersimilar medicalleave.

.

8.

Respondent.sagents,EugeneMcDonald andMike Smith, amongothers. are responsible tfhoirsthdeisdcrisimcriinmaitnioantiofrnomto owchcicuhninI gw.as.subjected,and for not taking all reasonablestepsto prevent

Ideclarew Id~ thepenalty of pcrj~ that the

Dated:

~.

2003 .

I

.JUN : ~ 2003
Page2

Case 3:03-cv-02878 Document 91-5 Filed 10/12/2005 Page 1 of 6
EXHIBIT D

Case 3:03-cv-02878 Document 91-5 Filed 10/12/2005 Page 2 of 6

Case 3:03-cv-02878 Document 91-5 Filed 10/12/2005 Page 3 of 6

Case 3:03-cv-02878 Document 91-5 Filed 10/12/2005 Page 4 of 6

Case 3:03-cv-02878 Document 91-5 Filed 10/12/2005 Page 5 of 6

Case 3:03-cv-02878 Document 91-5 Filed 10/12/2005 Page 6 of 6

Case 3:03-cv-02878 Document 91-6 Filed 10/12/2005 Page 1 of 7
EXHIBIT E

Case 3:03-cv-02878 Document 91-6 Filed 10/12/2005 Page 2 of 7

Case 3:03-cv-02878 Document 91-6 Filed 10/12/2005 Page 3 of 7

Case 3:03-cv-02878 Document 91-6 Filed 10/12/2005 Page 4 of 7

Case 3:03-cv-02878 Document 91-6 Filed 10/12/2005 Page 5 of 7

Case 3:03-cv-02878 Document 91-6 Filed 10/12/2005 Page 6 of 7

Case 3:03-cv-02878 Document 91-6 Filed 10/12/2005 Page 7 of 7

Case 3:03-cv-02878 Document 91-7 Filed 10/12/2005 Page 1 of 5
EXHIBIT F

Case 3:03-cv-02878 Document 91-7 Filed 10/12/2005 Page 2 of 5

~"_'_') - ~ - -

~

C"~GE OF DISCRIMINATION

1M bm~.~~~ ...~s--.,. P..lt1vKcy-~.nd~'-1"8.14~.S- -=Io.S.8dbPmItvc.y Ad

andEBJC

-~~
335Broka~ Roa~t~lara,
N8II8

~ 95050

C8y.-.ld~

~

Cays,. .adz.-c;..

~Ti)H

~ ~ (~

[iJ RACE0 ca.M

[XJ R!TAU~A

0

~~ . D SEX 0 ~
AGE 0 DISABMJT0Y

0 *~ ~~
OTHE(SRP«'bYeIGW.)

T-HEPARncu.AAAMS,. ~,..,.

b~ ~ ... -'-I(8J):

SEE ATTACHED

~ .. d*98 ~ willi bdh .,. EEOC ~ .. S*at8 m' kIQ AGency. "'"

. advtI8 aw ~

w, dI89 "rt 8d«M8 « ~

,

~ I w8

)QpW8f8 July ... --

k\ 1M PIocaU'8

d my dI8IV8 k\ 8ccaIdIc1C8 will ..

~.

jed818 \Ind.. penalty of perjury that .. abOVe. INe and CCI1'ecl

I II«)T MY - M811IeceSSat1-'s"-

JijN ~ 4 2003
... ~~ ~s::nc.-x~.,r'.I~I~i ~

Case 3:03-cv-02878 Document 91-7 Filed 10/12/2005 Page 3 of 5
4

8T ATEMlNT

DOC ~GE STATEMENT

I, nL VIN SMrrH, SR..statcu follows:
J.

ofblrth Ii.am123/49/Y64e.llSlleosfidaegea.tI)a9m15B6tlCCrko.mIehJoClLdaSnoec,Aiap)SplceoVuarlltlyenyu, CmAbtr92534058-7. 5M-2y.9te6!8e.rMiJyDndeal.e

numberis 760-403.0398.

2.

-

My complaiDtiJ againlt Fedcx (hQdDaft« "Rcspondenr').which is loeatcd at 335

BtOkawRoad. Smta Ctra, CsIifomi.. 95050. I be,ganmy eaip1~mt with Respondenton Of

aboutNovesnb=-1989. When I we teaniDatcd,my job olulificalion wu Lead Handlu-.

3.

.

.

.

Respondentii aD altity with IS or more anployeea dming each of tho last 20 calmdar

weeks.

4.

I havo bem aubjcct.cdto race-baseddil,pmto creabneabt y Fcdex.ino1u4insamongoth.. thiIIg1,disai..mm~~ with RSpectto ~mpa\Ation. promotion,. and~8 t~ arMSconditioos of
my emplo)'ID.tnIwiOi Fed~ including but DOt1imitcdto. UDequajo1b '-'SiBJD'nentml, ore hazardouswork condiUoDSm. ICqUaUl aIniagOpfX)rtlmiti~JJJdthe assilJlmeQtof mo:e sttemJOus job duties.

I 1m informed andbcliGYethat RcspoudeQhta . plt1cm andpracticeof dilcrirniDatina IgBiDstpeoplesimiJarlyslbJatedto ma. including dilcrimination mpromotioDJ.ccmpeDSation andthe tatmllDd coadldoDi or mnploym=L Jamfgrtba' iufi)11DedaDdbelieve that tbo djsajm1nationwas andil thctmult ofpolidC8.pro cedmor.asndpracti~ that have a diJparatc impact Ofttho basil of lI(;e.
s.

Duringm)" cnp1oym~ at Fed",. I b.v8 repeltedtycompla!oedto ~pany officials ~gard1nSthe discrim;nAfln!L D~pito tbesccomplalDtaf,eda officials "va doDeJittle or nominl to addm, my con~.

pa.al

TIN ? ~

'1:55

~IDER I. ~

Pf&.B;J

Case 3:03-cv-02878 Document 91-7 Filed 10/12/2005 Page 4 of 5

ST A TEMr.N'1'
6.
Rcapondmthis rctaJiated.~ mefor comp\.miJ18aboutrace-baseddiscrimination.
7. Tho disMmift-tiOD a)J1tjnuedthroup Augv3t2002.wbm ~pond~t upheld its dlscriminatoJYdiseipU1teandteI1DiDatio!a2~, I imdatedaD appealvia FedEx°. intanaJ Gu.uuteedPairT~aat procecs.

8.

Respondcnt-.agmta,Angela Suazo.Cory Wmicrs IUd Rob Motta'- amongothc:s, are

r~te

for the diJcri~iDatiou to ?Ibid! I wu subjected,andfur not takfng all reasoaablc

stepsto preventWI disaimlaation fi'mnocaJn1ug.

I dcclarcwJderthe penaltyor p~

Dated:- -~,::.

2. t(

.2003

u that the foregoing tnIc Ind cou-~
/J / I"l- ~ ..I

--1,

.g~mr;~~""J

1lN 24 83 11:56

P8p1

8:H'E11ER I. ~-L~

~.94

Case 3:03-cv-02878 Document 91-7 Filed 10/12/2005 Page 5 of 5

* . . ..COMPLAINOTFDISCRIMINATIOUN.D.E.R. E. MPLOVMOEFNETH' 22002Q3-~-OO7.9.-01J:1:

TH! PROV1SiONCSFmE CALIFORNIA'

aAl4 UR Q"lY

FAIREMPLOYMENATNDHOUSINGACT

-
.,_."-r'oK~-.A;\M-.I;~:"~' ::~ J

r~ .\-L

J'ro.

. .

~1t.W8;KPa.a..~

.~

ro.

ca--ma-ai~~alufo J ~ Oo-t'+ ij .I.,-~d~ - .#.cI..r~ ~

.

C-- M-n~~-

. ~-

NAM

, PERSON. LABOROR6ANlZATlaN. EMPLOYMENATGENCYA, PPRENTICE:.SH- -I-P

,~ ~ -

...

:JM ~v~_Il.t--_J

~T-,~ f:1~~
~;'~"inI.~'IiI~

0 '"A
~. .

c

~

DqAr~i.tr~-c~> '~~"D~A~

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-

.~!

: -

~- .
- co.8tr-
/

J)ti~-
On

~'-~~J.,

.r , ~~'"'

-~~

I wu

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Case 3:03-cv-02878 Document 91-8 Filed 10/12/2005 Page 1 of 2
EXHIBIT G

Case 3:03-cv-02878 Document 91-8 Filed 10/12/2005 Page 2 of 2

Case 3:03-cv-02878 Document 91-9 Filed 10/12/2005 Page 1 of 4
EXHIBIT H

Case 3:03-cv-02878 Document 91-9 Filed 10/12/2005 Page 2 of 4

EE~F_5~')

CHARGE OF DISCRIMINATION

~ /111mII ~

by" PItvacy Act of 1974. 8M 81ckI.-t PrlV8cyAd

SI8f.nIri at"- ;'-.;"'..-Ic...~ ~ng

tie tImL

O1alge Presented To;
D FEPA ~ EEOC

Agencyfles) Charge No(s): 370-2003-09516

St ~

Qy,s-.""D"~

960 Cherry -Blossom Lane Tracy, CA 95377

Namedis theEmployerL, aborOrganIzatklnE, ~

Ag8tC'f,Apf-.nI~~.

DlsalmlnaledAgaInst~ ~~.

(If mot8thanM, BatIIr1depr~s

bekIw.)

N-

FEDEX

I SftetAdlk-
335 Brokaw Road Santa Clara, CA 95050

cay. SIaI8 and ZJP Code

.
or sa. or LocalGov~T.Ta-.tAgencyThalI8eIIew

51-' ~

cay, $.. 8M ZP Code

~T)a4

BASED C»/ (Chedt ~ ~ b(--J.)

0 IX] RACE

ca.OR

D SEX

0 RELIGION

IX] RETNJATDI

0 AGE

D 0 ~SMLrrY

D NA1DIALauGIN
onER (~b8I8w.)

THE PARTClIl.ARS ARE (1I8ddRJona~1 Is M8ded, attachu/ra "".'(8)):
SEE ATTACHED CHARGE

1_111." dlarVelied willlIc*\ 1118EEOC 8nd.,. SIa.« Ioc8I AgeIq,...,.

I I NOTARY- ~

11.4.1~. u. agencies if I GtI8ngo my .sdr... «~ cooperate ~Iy ~ tMm n !he proc.~ of my charge
procell.,...

...riJ«
kI accadaace

I wi
wIh t18Ir

I dedare under penaayof per1WYthat ~ above Is !rue am coned.

~b'S8

May 14, 2003 0..

aJ8tUiIIgP.,ry Sign-"-.

8Id LDc8AQ8ICY~ ~

Case 3:03-cv-02878 Document 91-9 Filed 10/12/2005 Page 3 of 4
STATEMENT
EEOCCHARGESTATEMENT
I, Derrick Satchell, stateas follows:
1.
lam 36 yearsof age. I am Amcan Ameaican. I mid Social Security n1DDb~330-60915834797. .MMyydtaetleeopfhboinrtehnuismDbeecreism2b0~968,315906:064. 3I 9re. sideat 960 Cheny Blossom Lane, Tracy., CA
2.
My C2JDPlainits againstFcdex (heceinaftcr""Respondent"),whicl1 is located at 335 Brokaw Ro~. SantaClara, California 95050. My job classification is Operation Manager. My immediate supeavisoris Robert Motter.
3.
Respondentis an mtity with is or more =nployees during eacl1o~thc last 20 calcI1dat weekt.
4.
I beganmy ~ployment with Respondenton or aboutJuly 2. 1992.
s.
Beginning on or about 1993,I was subjectedto race-baseddiscrimination by Fedex, including amongotha: dliDgs, race-baseddiscrimination with respectto compensation, promotions, andthe tem1sof conditions of my cmplo~a1t.with Fcdcx, including but not limited to, \D1equa1jobassignmmis, unequaltrainingopportunitics andthe assignmmt ofmorc strenuousjob duties. This disaimination was andis the result of disparatetreatm~t and/or policies. proceduresandpracti~ that have a disparateimpact on the basisof race. Eval though I wasdoing the samejob duties asmy Caucasianco-workcrs. I was denied promotions that I was qualified to receive,paid lesswages,and wasmore harshly moni~ and evaluatedthan my Caucasianco-workC1'3.I have beml mlployed by Fedex for 9 1/2 ~ and I have been dQlied promotion(s). or held up for promotion(s) for extendedperiods as a result of discrimination. Similarly. I have andcontinue to be paid lessthan Caucasianm1plo~ who perfurm substan.ti8llysimilar work and who havesimilar or lesserskills or experimlcc. During my employmentasFedexI have repeatedlycomplainedto companyofficials regarding their failure to promote me. and to provide compQ1sationand temlS and condition! of employment equalto
Pase1

Case 3:03-cv-02878 Document 91-9 Filed 10/12/2005 Page 4 of 4

STA TEMENI'

tdhoonseelpitrtloevojdrendotothminygtCoaaudcdarseisasmncoy-owoonrkcearns8.D. espiteth-esecomplaints. ,Fedexoffi.cialshave

FedEx's disaimination apinst me continuedthrough August 28, 200~ when I received a final dderinination.on appealofmytennination (via FedEx's intema1GuaranteedFair Treabnent appealprocess). FedEx upheld the unfair tennination.

6.

disaiDiFli1e8dteioxn.a.-Anmditsoonfgf'ioctiahlesrthhainvgerse,'tPaelidaetexbd-a!fg.lia~itnesdmt efoar~ctompwlaeinbiynpg\ailbcoinugtraacne~-wba~steedd

letterin my file.

. '.

-

7.
".RC)SpondenStt,eveSeymour, LoWeButler, Chris Matthew, and Robert Mott"ccare responst"blefor the discrimination, disparatetreatm'entandretaliation to which I was subjected whi1eworking for Respondent Purthennore.Respondent.SteveSeyinour and Louie Butler are respoDS~lefor not taking all rea$Onablestepsto preventthis discrimination from occuuing. I am mf9nned andbelieve that Respondenthasa patt~ andpractice of discriminating against people similarly situated to me including discrimination in promotions~compensationandthe ,termsand conditions of employment
8.
The actsof Respondentwere takenprimari1yby CIuis Matthew and Robert Motter, and through certain others as well.

~ I declareunderthepenaltyof perjury the foregoing is true and co~

- e L/ Dated:

Z .

.2003

~~'aSA~~~~ L~ ~:::-=~"7'~~;I

Page2

Case 3:03-cv-02878 Document 91-10 Filed 10/12/2005 Page 1 of 8
EXHIBIT I

Case 3:03-cv-02878 Document 91-10 Filed 10/12/2005 Page 2 of 8

Case 3:03-cv-02878 Document 91-10 Filed 10/12/2005 Page 3 of 8

Case 3:03-cv-02878 Document 91-10 Filed 10/12/2005 Page 4 of 8

Case 3:03-cv-02878 Document 91-10 Filed 10/12/2005 Page 5 of 8

Case 3:03-cv-02878 Document 91-10 Filed 10/12/2005 Page 6 of 8

Case 3:03-cv-02878 Document 91-10 Filed 10/12/2005 Page 7 of 8

Case 3:03-cv-02878 Document 91-10 Filed 10/12/2005 Page 8 of 8

 
 Case 3:03-cv-02659 Document 528 Filed 12/05/2006 Page 1 of 2

1 Frederick L. Douglas frederick.douglas@fedex.com (Admitted Pro Hac Vice)
2 FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road
3 Building B, 3rd Floor Memphis, Tennessee 38125-8800
4 Telephone: (901) 434-8519 Facsimile: (901) 434-9271
5 SEYFARTH SHAW LLP
6 Gilmore F. Diekmann, Jr. (SBN: 050400) gdiekmann@seyfarth.com Francis J. Ortman, III (SBN: 213202) fortman@seyfarth.com
7 560 Mission Street, Suite 3100 San Francisco, California 94105
8 Telephone: (415) 397-2823 Facsimile: (415) 397-8549
9 Evelyn L. Becker (SBN: 170903)
10 O’MELVENY & MYERS LLP 1625 Eye Street, NW
11 Washington, DC 20006 Telephone: (202) 383-5300
12 Facsimile: (202) 383-5414

13 Attorneys for Defendants FEDEX EXPRESS
14

15

UNITED STATES DISTRICT COURT

16

IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA

17 DERRICK SATCHELL, KALINI BOYKIN, ) Case Nos. C 03-02659 SI; C03-02878 SI

VALERIE BROWN, RICK GONZALES, )

18 CYNTHIA GUERRERO, RACHEL

) CLASS ACTION

HUTCHINS, DANIEL SHERMAN, KELVIN )

19 SMITH, SR., and KEN STEVENSON, on ) ORDER DISMISSING CLASS CLAIMS

behalf of themselves and all other similarly ) UNDER THE CALIFORNIA FAIR

20 situated,

) EMPLOYMENT AND HOUSING ACT

)

21

Plaintiffs,

)

)

22

vs.

)

)

23 FEDEX EXPRESS, a Delaware corporation, )

)

24

Defendants.

)

)

25

26

27

28

Order Dismissing Class Claims Under the FEHA / Case Nos. C03-02659 SI; C03-02878 SI

Case 3:03-cv-02659 Document 528 Filed 12/05/2006 Page 2 of 2

1

WHEREAS, on November 14, 2006, this Court granted Plaintiffs’ Motion To File A

2 Third Amended Complaint that did not include the class claims under the California Fair

3 Employment and Housing Act (“FEHA”) previously certified by the Court;

4

WHEREAS, the Third Amended Complaint filed by plaintiffs deleted the previously

5 certified class claims under the FEHA;

6

WHEREAS, the parties agree that the class claims under the FEHA therefore should be

7 dismissed with prejudice;

8

WHEREAS, the parties agree that judgment on the dismissed class FEHA claims shall be

9 entered at the same time that judgment on the rest of the claims in this case is entered;

10

THEREFORE, the parties hereby stipulate and agree that the class FEHA claims

11 previously certified by the Court shall be dismissed with prejudice, and request that the Court so

12 order.

13 DATED: December 5, 2006.

14

15
____________/s/_________________ 16 Eve H. Cervantez
LIEFF, CABRASER, HEIMANN 17 & BERNSTEIN, LLP
275 Battery Street, 30th Floor 18 San Francisco, CA 94111-3339
Telephone: (415) 956-1000 19 Facsimile: (415) 956-10018
Class Counsel 20

______________/s/ ____________ Gilmore F. Diekmann, Jr. SEYFARTH & SHAW LLP 560 Mission Street, Suite 3100 San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Counsel for the Defendant

21

ORDER

22

Based upon the foregoing, and good cause appearing,

23

IT IS ORDERED that the class claims previously certified by the Court under the

24 California Fair Employment and Housing Act are dismissed with prejudice.

25

26 DATED: December ____, 2006. 27

____________________________________ UNITED STATES DISTRICT COURT JUDGE

28

1

Order Dismissing Class Claims Under the FEHA / Case Nos. C03-02659 SI; C03-02878 SI

 
 -
1 James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709)
2 Rebekah Evenson (SBN 207825) Danielle E. Leonard (SBN 218201)
3 Claire Prestel (SBN 235649) ALTSHULER BERZON LLP
4 177 Post Street, Suite 300 San Francisco, CA 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 Kelly M. Dermody (SBN 171716)
7 Daniel E. Barenbaum (SBN 209261) LIEFF, CABRASER, HEIMANN &
8 BERNSTEIN, LLP 275 Battery Street, 30th Floor
9 San Francisco, CA 94111-3339 Telephone: (415) 956-1000
10 Facsimile: (415) 956-1008

11 Todd M. Schneider (SBN 158253) Guy B. Wallace (SBN 176151)
12 SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000
13 San Francisco, CA 94104 Telephone: (415) 421-7100
14 Facsimile: (415) 421-7105

15 Additional class counsel appear on signature page

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18 DERRICK SATCHELL, et al.,
19 Plaintiffs,
20 v.
21 FEDEX EXPRESS, a Delaware Corporation,
22 Defendant.
23

24 PATRICIA CALDWELL, et aI.,

25

v.

26 FEDEX EXPRESS, a Delaware Corporation,

Case No.: C03-2659 SI; C 03-2878 SI

CLASS ACTION

NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND FOR FINAL CERTIFICATION OF SETTLEMENT CLASSES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Date: Time: Place: Judge:

August 9,2007 3:30 p.m. Courtroom 10, 19th Floor Hon. Susan Illston

27

Defendant.

28

MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1

NOTICE OF MOTION AND MOTION

2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on August 9, 2007, at 3:30 p.m., or as soon thereafter as the

4 matter may be heard, in Courtroom 10 of the United States District Court, Northern District of

5 California, located at 450 Golden Gate Avenue, 19th Floor, San Francisco, California, the plaintiff

6 classes will, and hereby do, move for orders granting final approval to the parties' class action

7 settlement, finally certifying the proposed settlement classes, and approving and entering the proposed

8 Consent Decree (attached to the Court's April 13, 2007 preliminary approval order, Doc. 729).

9

Plaintiffs' Motion is based on this Notice, the accompanying Memorandum of Points and

10 Authorities, the declarations of James M. Finberg, Mark Patton, and Barry Goldstein, the proposed

11 Consent Decree, all other pleadings and papers on file in this action, and any oral argument the Court

12 permits.

13

Defendant FedEx Express does not oppose this Motion.

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1

TABLE OF CONTENTS

2

MEMORANDUM OF POINTS AND AUTHORITIES

3 INTRODUCTION ................................................................................................... 1

4 SUMMARY OF SETTLEMENT TERMS .......................................................................1

5

I.

INJUNCTIVE RELIEF ........................................................................... 1

6

A. Selection Practices ........................................................................ 2

7

B. Perfonnance Evaluations .................................................................4

8

C. Discipline and Complaints ...............................................................5

9

D. General Equitable Provisions ............................................................7

10

E. Communication of Decree Tenns ...................................................... 7

11

F. Diversity Training ........................................................................ 8

12

G. Reporting, Recordkeeping, Monitoring, and Dispute Resolution .................. 8

13

H. Dispute Resolution ........................................................................8

14

II. MONETARY RELIEF ............................................................................8

15

III. RELEASE OF CLAIMS ........................................................................ 10

16 LEGAL STANDARD ............................................................................................. 11

17 ARGUMENT ....................................................................................................... 12

18

I.

THE COURT SHOULD GRANT FINAL APPROVAL TO THE

SETTLEMENT AND CONSENT DECREE ................................................. 12

19

A. The Consent Decree Provides Exceptional Injunctive and

20

Monetary Relief to the Class ............................................................ 12

21 1. The Consent Decree Provides Exceptional Injunctive Relief ............ 12

22
2. The Monetary Relief Provided by the Decree is

23

Substantial and Fairly Allocated ............................................. 14

24

B. The Reaction of the Class Supports Approval of the Settlement .................. 15

25

C. The Litigation Involved Substantial Potential Risk ................................. 17

26

D. The Parties Conducted Extensive Investigation and Analysis

27

and the Settlement Was Reached Through Anns' Length Negotiations ......... 17

28

MOTION FOR FINAL SETILEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1

E. The Recommendations of Experienced Counsel

Favor Approval of the Settlement .....................................................20
2

II. THE COURT SHOULD GRANT FINAL CLASS CERTIFICATION .................. 20 3

CONCLUSION .....................................................................................................21 4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11 MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3 Boyd v. Bechtel Corp.,

485 F.Supp. 610 (N.D. Cal. 1979)............................................................................... 12, 20

4

Carson v. American Brands, Inc.,

5

450 U.S. 79 (1981) ............................................................................................................ 11

6 Class Plaintiffs v. City ofSeattle,

955 F.2d 1268 (9thCir. 1992) ........................................................................................... 11

7

Ellis v. Naval Air Rework Facility,

8

87 F.R.D. 15 (N.D. Cal. 1980) .................................................................................... 11, 12

9 Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) ................................................. ...................................passim

10

Officers for Justice v. Civil Servo Commission,

11

688 F.2d 615 (9th Cir. 1982) ....................................................................................... 11, 12

12 Staton v. Boeing Co.,

327 F.3d 938 (9th Cir. 2003) ............................................................................................. 12

13

FEDERAL STATUTES

14

Federal Rule of Civil Procedure 23 ...................................................... ..................................passim

15

Unifonn Guidelines on Employee Selection Procedures,

16

41 C.F.R. §§60-3.l et seq ................................................................................ 13, 14, 15

17

18

19

20

21

22

23

24

25

26

27

28

111 MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

The parties have agreed to a settlement that provides comprehensive injunctive relief and

4 monetary relieftotaling approximately $55,000,000. The parties' settlement, embodied in the Consent

5 Decree, easily satisfies the "fair, reasonable, and adequate" standard for final approval. See Federal

6 Rule of Civil Procedure 23(e).!

7

The Decree provides exceptional relief to African-American and Latino FedEx Express

8 ("FedEx") employees. The Decree's extensive injunctive relief provisions address class members'

9 promotion, compensation, and discipline claims, and will materially advance the goal of equal

10 employment opportunity for African-American and Latino employees at FedEx. The monetary relief

11 provided to class members is also substantial and fairly allocated. Taken together, the injunctive and

12 monetary provisions of the Decree will provide class members with prompt, certain, and exceptional

13 relief - in contrast to the complexity, delay, expense, and risk of continuing litigation.

14

Class members have responded favorably to the settlement. Class notice was mailed to 23,790

15 class members on May 23,2007. As of July 2,2007, the claims administrator had already received

16 8,426 claims, even though the deadline for submitting claim forms is not until August 1,2007. Only

17 10 class members had opted out, and only one class member had submitted an objection? Class

18 counsel, who are experienced in litigating employment discrimination and class action cases, firmly

19 believe that this proposed settlement is in the best interest of the class.
~

20

SUMMARY OF SETTLEMENT TERMS

21

The proposed Consent Decree provides comprehensive injunctive relief and substantial

22 monetary relief.

23 I. INJUNCTIVE RELIEF

24

During the four-year period of the Decree, FedEx has agreed to implement comprehensive

25

26
! The proposed Consent Decree is attached to the Court's preliminary approval order. See Doc. 729. 27
2 The deadline for postmarking objections and opt outs is July 7,2007. Plaintiffs will address any 28 objections received after July 2 in a reply brief.

1
MOTION FOR FINAL SETILEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 affirmative relief addressing the promotion, compensation, and discipline claims in this action,

2 including the following:

3

A. Selection Practices

4

1. FedEx will discontinue use ofthe Basic Skills Test ("BST") as a requirement for

5 awarding Courier, Ramp Transport Driver, and Customer Service Agent positions, without requiring

6 passage of an alternative cognitive-ability test as a condition precedent to being offered one of those

7 positions during the period of the Decree. See Consent Decree Section XI.A.l.

8

2. If FedEx chooses to implement a new selection device or test for those positions,

9 it will monitor whether such selection device or test has an adverse impact with respect to African-

10 Americans or Latinos, and it will report the results of its adverse impact analyses to a Special Master,

11 see id. Section XVIII, and to a subset of class counsel designated as "Monitoring Counsel," see id.

12 Section IY.W. Ifthere is adverse impact, FedEx will, after consultation with the Special Master and

13 Monitoring Counsel, take appropriate steps, in accordance with the Uniform Guidelines on Employee

14 Selection Procedures. Id. Section XI.A.2.

15

3. As part of the parties' settlement, FedEx has eliminated the "casual" category of

16 employees. By the approval date, FedEx will offer existing casual employees upgrades to permanent

17 status based on location availability and most recent hire date. Casual employees who are not

18 upgraded will be advised of the opportunity to apply for available permanent positions. Id. Section

19 XI.B.

20

4. Subject to very limited authorized exceptions enumerated in the Consent

21 Decree, hourly positions will be filled only through the Job Change Application Tracking System

22 ("JCATS"). A "Monitoring Panel" described in Section XVII ofthe Decree will develop and review

23 reports to help ensure that this occurs, and monitoring reports will be provided to Monitoring Counsel

24 and the Special Master. !d. Section XI.C.6?

25
26 3 The Monitoring Panel will be established within two weeks of final approval and will be charged with using its best efforts to ensure FedEx's implementation of and compliance with the Consent
27 Decree. The Panel will include an attorney from FedEx's Labor and Employment Group, an attorney from the FedEx Litigation Group, and a Managing Director from FedEx Human Resources. The Panel
28 will report directly to the Chief Diversity Officer and the Legal Department Vice President member of (continued ...)
2
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1

5. FedEx will make a computer or terminal reasonably available for

2 employees to review posted Career Opportunities. Id. Section XI. C.1.

3

6. For JCATS positions, the manager will not approve, but only "verify,"

4 whether an employee has met the minimum objective requirements. FedEx will replace references to

5 manager "recommendation" with references to manager "verification" in its Career Opportunities

6 policy to reflect more accurately the role of managers in the internal application process. Id. Sections

7 XI.C.4, XI.E.1.

8

7. FedEx will reprogram JCATS so that if a manger fails to take the action

9 required to verify timely that an employee meets the minimum objective requirements, the employee's

10 name will be included on the list of eligible applicants for consideration by the hiring manager. The

11 hiring manager will verify the employee's eligibility before the employee may be offered the position.

12 Id. Section XI.E.2.

13

8. FedEx will revise its Candidate Selection and Internal Applicant Processing

14 policies to subject mangers to discipline up to and including termination for failing to fill positions

15 according to company policy, including selection policies relating to priority groups and CEV scores.

16 Id. Section XI.F.

17

9. The FedEx intranet will contain information about the Assessment of

18 Skills, Performance and Interests Requirement for Entry into Management ("ASPIRE") process for

19 each division. Jd. Section XI.D.1.

20

10. FedEx will develop and distribute offline materials that outline the ASPIRE

21 process for each division. Id. Section XI.D.2.

22

11. FedEx will allow enrollment in the available ASPIRE to Management classes

23

24 (continued ...) the FedEx Officer Diversity Council. FedEx will provide the Panel with all resources reasonably
25 necessary to carry out its duties. See Consent Decree Section XVII.

26

In selecting members ofthe Monitoring Panel, FedEx will use its best efforts to appoint

individuals who will be effective in carrying out the Panel's duties and responsibilities. Monitoring

27 Counsel will be provided with a resume and qualifications for each person FedEx intends to appoint. Monitoring Counsel may interview candidates and provide their views about the candidates'

28 qualifications and suitability. See id.

3
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

.

.

1 upon verification by an employee's manager that the employee meets the objective eligibility

2 requirements, i.e., the employee has no active warning letter, has a satisfactory rating in all

3 performance review categories, has a satisfactory overall performance review score, has two years of

4 college credit or equivalent work experience, and has four years of work experience in addition to the

5 experience, if any, used for college credit equivalent. !d. Section XLD.3.

6

B. Performance Evaluations

7

1. FedEx will modify its online performance review categories to include

8 additional anchor statements, descriptions, and guidelines to assist managers in evaluating employee

9 performance, particularly with respect to subjective categories. Id. Section XII. 1.

10

2.

FedEx will develop and communicate to managers clear guidelines setting

11 forth when an exception to the rating scale may be given. Exception scores will be appropriate for: (a)

12 active warning or reminder letters; (b) compliance with FMLA, military leave laws, state workers'

13 compensation laws, or other federal, state or local law; (c) adding bonus points for perfect attendance

14 and/or perfect punctuality; (d) consideration of documented events such as severe weather conditions

15 or traffic situations that impacted a significant number of employees on the same date in the same

16 location; (e) consideration of documented staffing shortages that impacted categories such as quality or

17 efficiency; (f) consideration of other documented circumstances that justify exceptions in compliance

18 with policy and after consultation with Human Resources and the location Senior Manager. Id.

19 Section XII.3.

20

3. FedEx will enforce its written requirements that all exception scores must be

21 approved by the location Senior Manager and that the reason for all exception scores must be

22 documented in the comments section of performance reviews. Id. Section XIIA.

23

4. FedEx will add a performance review item to its location audit process to audit a

24 sample of performance reviews for hourly employees to ensure that the guidelines and rating scales for

25 the objective scores are followed and that any exception ratings are fully documented and approved as

26 required by policy. Id. Section XIL5.

27

5. FedEx will develop an interactive mandatory training module to assist managers

28 in conducting performance reviews in an accurate and consistent manner. The training module will

4
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 include a focus on the items set forth in the perfonnance evaluation section of the Consent Decree. Id.

2 Section XII.6.

3

6. FedEx will establish a procedure by which it will monitor whether the subjective

4 components of its perfonnance evaluations for Handlers and Couriers produce more than two negative

5 standard deviations of disparity between African-American or Latino employees and white employees

6 in the same job code, organization code, COMAT, time-in-position, and length of FedEx Express 7 service.4 FedEx will conduct regression analyses for Handlers and Couriers in the Western Region of 8 the Air, Ground and Freight Services ("AGFS") and Domestic Ground Operations ("DGO") Divisions,

9 aggregating data by (1) Handlers in AGFS, (2) Couriers in AGFS, (3) Handlers in DGO, and (4)

10 Couriers in DGO. Id. Section XII.7.

11

7. FedEx will establish a procedure by which it will monitor whether the

12 subjective components of its perfonnance evaluations for Operations Managers produce more than two

13 negative standard deviations of disparity between African-American and white employees in the same

14 job code, organization code, COMAT, time-in-position, time-in-management, and length of FedEx

15 service. FedEx will conduct a regression analysis, aggregating all data from (1) the Western Region of

16 the AGFS division, and (2) the Western Region of the DGO Division. Id.

17

8. FedEx will report the results of its impact analyses to Monitoring Counsel and

18 the Special Master. If, for any year during the tenn of the Decree, there is adverse impact as to either

19 African Americans or Latinos, FedEx will validate in accordance with the Unifonn Guidelines the

20 subjective portions ofthe perfonnance evaluation and associated processes for which a statistically

21 significant disparity was found. Id.

22

C. Discipline and Complaints

23

1. FedEx will revise its Acceptable Conduct and Perfonnance Improvement

24 policies to provide for greater consistency in the use of disciplinary tools such as warning letters and

25

26 4 COMATS are the AGFS and DGO locations that comprise the Western Region for purposes ofthe
27 Decree. A list of Western Region COMATS is attached to the Decree as Appendix A. Those in Arizona, Colorado, Idaho, Montana, New Mexico, Texas, Utah, and Wyoming became part of the
28 Western Region on or about October 12, 2003. See Consent Decree Section IV.K.

5
MOTION FOR FINAL SETILEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 performance reminders, including by adding language that clarifies that an On Line

2 Compliment/Counseling ("OLCC") is not considered discipline but may be considered when

3 determining whether discipline is required and when identifying patterns of conduct or performance

4 issues that may warrant discipline. FedEx will also merge the separate categories of "documented

5 verbal counselings" and "documented written counselings" into the single category of "documented

6 counselings," and will require that all counselings be "documented" as OLCCs regardless of whether a

7 separate memo or written synopsis of the counseling is given to the employee. !d. Section XIV.A.l.

8

2. FedEx will develop an interactive mandatory training module to

9 assist managers with understanding and applying the Acceptable Conduct and Performance

10 Improvement policies for greater consistency and neutrality. !d. Section XIV.AA.

11

3. FedEx will enforce its policy that a written record must be made of the basis for

12 all discipline. Id. Section XIV.A.2.

13

4. FedEx will prepare a complaint tracking spreadsheet that will record pertinent

14 information regarding complaints in the Western Region of alleged discrimination on the basis of race

15 (African American) or national origin (Latino) or retaliation against class members. Id. Section XV.2.

16 Pertinent information shall include a designation identifying the complaint as one of race or national

17 origin discrimination, or both; the name, job classification, and work location of the complainant(s);

18 and the results of the investigation undertaken in response to the complaint, including the corrective

19 action taken, if any, and the name of the manager(s) or other employee(s) disciplined. Id.

20

5. FedEx will provide its complaint tracking spreadsheets on a regular basis to the

21 Monitoring Panel, see id. Section VII, and to Monitoring Counsel. Id. Section XV.3.

22

6. FedEx will, on a regular basis, provide the Monitoring Panel and

23 Monitoring Counsel with a sample of employee complaints (as selected by the Monitoring Panel from

24 the complaint tracking spreadsheet), along with all related non-privileged investigative files, and non-

25 privileged written reports summarizing the investigation and remedial actions taken or proposed by

26 FedEx relative to each selected complaint, for the purpose of review of the propriety and justness of

27 the resolution of such complaints. The Monitoring Panel will review FedEx's investigation of each

28 complaint and may, where appropriate, make recommendations regarding the investigation and

6
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 resolution of complaints. The Monitoring Panel may recommend that FedEx take additional

2 i investigative steps including, without limitation, re-interviewing the complaining party and other

3 persons of interest. The Monitoring Panel may also take any other investigative actions the panel

4 deems appropriate. In carrying out its monitoring duties, the Monitoring Panel may seek non-

5 privileged backup or further documents or information regarding any complaint identified on the

6 tracking spreadsheet. Id. Sections XVA-XV.6.

7

7. FedEx will modify the steps for initiating a Guaranteed Fair Treatment ("GFT")

8 process to encourage, rather than require, employees to engage in an open and frank discussion with

9 the decision-maker before the GFT. Id. Section XVI.1.

10

8. FedEx will allow employees initiating a GFT process a reasonable amount of

11 time prior to the GFT hearing to review and respond to the rationale submitted in support ofFedEx's

12 decision. !d. Section XVI.2.

13

D. General Equitable Provisions

14

1. FedEx will not knowingly maintain or enact any policy or practice that has the

15 purpose or effect of unlawfully discriminating against any hourly class members on the basis of race or

16 national origin, or the effect of unlawfully discriminating against any salaried, managerial class

17 members on the basis of race. Id. Section X.l.b.

18

2. FedEx shall make available to African-American and Latino employees and

19 African-American Operations Managers the same opportunities and terms and conditions of

20 employment that FedEx affords to similarly situated white employees and white Operations Managers.

21 !d. Section X.l.d.

22

E. Communication of Decree Terms

23

Within 30 days of settlement approval, and at least once during each year of the Decree, FedEx

24 will provide to each of its Western Region officers, managers, and employees a written communication

25 that reflects the company's commitment to diversity, equal employment opportunity, and

26 implementation of the non-monetary aspects of the Consent Decree. Id. Section XX.5

27
28 5 FedEx sent this written communication for this year shortly before the hearing on preliminary (continued ...)
7
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 •

F.

-
Diversity Training

2

FedEx will develop an interactive, mandatory diversity training module to help managers (1)

3 identify barriers that inhibit valuing race and ethnic diversity, (2) understand why race and ethnic

4 diversity awareness and acceptance is important to FedEx's growth and future, (3) learn how racial and

5 ethnic stereotypes hinder effective communication and workplace interactions, and (4) learn how to

6 recognize differences and how those differences can enhance the workgroup. !d. Section XXI.

7

G. Reporting, Recordkeeping, Monitoring, and Dispute Resolution

8

1. Section XVIII.A of the Consent Decree lists a series of records that FedEx must

9 retain for the duration ofthe Decree (or as required by law, whichever period is longer). On

10 reasonable notice, Monitoring Counsel will be entitled to review all non-attorney/client privileged or

11 work-product protected documents required to be maintained or created under the Decree. If any

12 dispute arises as to whether the production of certain documents is unreasonable, the Special Master

13 will resolve the dispute. !d. Section XVIII.B.l.

14

2. FedEx will provide regularly scheduled and detailed progress reports on its compliance

15 with the Decree to Monitoring Counsel and the Special Master. Id. Sections XVIII.C, XVIII.D.

16

H.

17

1.

18 XVIII.l.

Dispute Resolution The parties agree to the appointment of Hunter Hughes as Special Master. !d. Section

19

2. The Consent Decree establishes a comprehensive dispute resolution procedure, with

20 disputes generally to be resolved by the Special Master. The Decree provides that decisions made by

21 the Special Master may be appealed to Court. See id. Section XIX.

22 II. MONETARY RELIEF

23

In addition to the comprehensive injunctive relief described above, FedEx will establish a

24 Settlement Fund of approximately $55 million and will also pay one half of the employer's share of 25 payroll taxes deducted from class member awards. See id. Sections XXII.A.1, XXII.A.2.d, XXII.M.6

26

27

(continued ... ) approval, after circulating a copy of the communication to class counsel.

28 6 The precise amount to be paid by FedEx to the Settlement Fund will be determined as follows: (1) (continued ...)
8
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 This Fund will compensate class members who do not opt out and who submit timely claims, will

2 provide small service payments to class representatives and 18 declarants for services provided on

3 behalf of the class, and will pay attorneys' fees, notice costs, and administrative expenses.

4

Nearly $38.5 million of the Settlement Fund is allocated for payments directly to class

5 members, reduced only by service payments not to exceed $360,000 total (or less than 1% of the

6 Settlement Fund), by the actual cost of providing notice, and by any opt-out credits. See id. Section

7 XXII.B.2.7 Each class member who does not opt out of the settlement will receive a proportionate 8 share of the net Settlement Fund (i.e., $38.5 million less notice costs, service payments, and opt-out

9 credits). Each class member's share will be determined using a point system, with a certain number of

10 points allocated based upon specific factors related to the different claims at issue in the case. For

11 African-American and Latino hourly claimants, the specific factors considered will be: (1) length of

12 service during the class period; (2) status as part-time or full-time employee; and (3) BST failure. For

13 African-American managerial claimants, the specific factor considered will be length of service as an

14 Operations Manager during the class period. See id. Section XXII.L.

15

Class members who do not opt out must submit a claim form by August 1, 2007 in order to

16 receive a monetary award. See id. Section XXII.F; see also Order Approving Revised Notice and

17 Claim Form (Doc. 734), Ex. A (final version of claim form mailed to class members). Once all claim

18 forms are submitted, the Claims Administrator - Settlement Services, Inc. - will allocate points,

19 determine each class member's award, and distribute the settlement proceeds as soon as practicable.

20

21
(continued ... ) 22 $53,500,000.00, plus (2) 4.924% per annum multiplied by the amounts the Court awards as service
payments, attorneys' fees, and costs, calculated for the period from the 10th business day after 23 preliminary approval to date of payment, plus (3) 5% per annum multiplied by the balance of
$53,300,000.00 (less any opt-out credits or incremental payments), calculated for the period from the 24 10th business day after preliminary approval to the date of payment. See Consent Decree Section
XXII.A.l; see also Order re: Interpretation of Section XXII.A.1 ofthe Consent Decree (Doc. 743). 25
7 FedEx is entitled to a credit for each class member who submits a timely and complete opt-out 26 request and who does not rescind that opt out as provided in Section XXII.D.3. The credit amount will
be the average settlement award for class members eligible to participate in the monetary Settlement 27 Fund as determined by the Allocation Plan in Section XXII.L. The total of all opt-out credits to which
FedEx is entitled will be deducted from the final payment to be made into the Settlement Fund. See 28 Consent Decree Section XXII.D.4.

9
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 See Consent Decree Section XXII.M.

2 III. RELEASE OF CLAIMS

3

Ifthe Court grants final approval to the parties' settlement and the proposed Consent Decree,

4 "all Settlement Class Members who do not timely opt out will release all race and national origin

5 discriinination claims against FedEx Express under federal and state laws that were certified by the

6 Court on September 27,2005, for the liability period of October 17, 1999 through the Preliminary

7 Approval Date [April 13, 2007]." !d. Section VIILA.8

8

The specific release provision for hourly Settlement Class Members states:

9

The Court certified on September 27,2005, claims of the Minority Employee

10

Settlement Class concerning race or national origin discrimination in promotions,

11

compensation, and discipline. The Minority Employee Settlement Class will release

12

claims, arising during the Class Period, under any federal or state legal theory, for race

13

and national origin discrimination in compensation, promotions identified in plaintiffs'

14

statement regarding promotion claims filed on November 30, 2006, i.e., (1) promotions

15

in the Western Region of the AGFS and DGO Divisions from any casual Class Member

16

Hourly Position to any permanent hourly position, (2) promotions from any permanent

17

Class Member Hourly Position to any other permanent hourly position, (3) promotions

18

of Latinos from a Class Member Hourly Position to operations manager positions, (4)

19

promotion from Class Member Hourly Positions to customer representative positions

20

from the beginning ofthe class period until June 1, 2006, and in the allegedly

21

discriminatory issuance of performance reminders or warning letters, to the extent that

22

the issuance of such discipline had an impact on an active employee's compensation or

23

ability to promote.

24 Id.

25

The specific release provision for operations manger Settlement Class Members states:

26
27 8 The "Settlement Class" is the Rule 23(b)(3) class - including a "Minority Employee Settlement Class" and an "African-American Operations Manager Settlement Class" - that the Court granted
28 conditional certification to in its April 13, 2007 preliminary approval order. See Doc. 729 at 3-5.

10
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

-

1

The Court certified on September 27,2005, claims of the African-American Operations

2

Manager Settlement Class of race and national origin discrimination ... concerning

3

compensation and discipline. The African-American Operations Manager Settlement

4

Class will release claims, arising during the Class Period, under any federal or state

5

legal theory, for race and national origin discrimination in compensation and the

6

allegedly discriminatory issuance of performance reminders or warning letters to the

7

extent that the issuance of such discipline had an impact on any active employee's

8

compensation or ability to promote.

9 Id.

10

The Decree does not release the non-class claims asserted by the class representatives

11 individually, as set for in plaintiffs' Third Amended Complaint, paragraphs 77-81, 88-90, 98-100, 109-

12 111, 117-119, 130-134, 141-143, 154-162, 181-185,203-218,226-253,254-257. !d. Section VIILB.

13

LEGAL STANDARD

14

The Ninth Circuit has recognized a strong policy favoring voluntary settlement of complex

15 class actions. "[V]oluntary conciliation and settlement are the preferred means of dispute resolution."

16 Officers for Justice v. Civil Servo Comm 'n, 688 F.2d 615, 625 (9th Cir. 1982). This is "especially true

17 in complex class action" cases, id., which lend themselves to compromise because of the difficulties of

18 proof, uncertainty of outcome, and length and complexity of litigation. See also Class Plaintiffi V. City

19 o/Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992) ("strong judicial policy ... favors settlements,

20 particularly where complex class action litigation is concerned").

21

Public policy also favors the settlement of Title VII cases. In Carson V. American Brands, Inc.,

22 450 U.S. 79 (1981), the Supreme Court explained that "[i]n enacting Title VII, Congress expressed a

23 strong preference for encouraging voluntary settlement of employment discrimination claims." !d. at

24 88 n.14; see also Officers for Justice, 688 F.2d at 625. This Court has reached the same conclusion.

25 See Ellis V. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980) ("settlement is favored in

26 resolving Title VII litigation").

27

Federal Rule of Civil Procedure 23(e) requires that a class action settlement be "fair, adequate

28 and reasonable" in order to merit approval. The Ninth Circuit has identified a non-exhaustive list of

11
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 factors to guide the final approval inquiry, including (1) the amount offered in settlement, (2) the

2 reaction of the class to the proposed settlement, (3) the strength of the plaintiffs' case balanced against

3 the "risk, expense, complexity, and likely duration of further litigation" and the "risk of maintaining

4 class action status throughout the trial," (4) the "extent of discovery completed" and the "stage ofthe

5 proceedings," and (5) the informed views of experienced counsel. Hanlon v. Chrysler Corp., 150 F.3d

6 1011, 1026 (9th Cir. 1998); see also Staton v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2003). With

7 respect to the last factor, the "recommendations of plaintiffs' counsel should be given a presumption of

8 reasonableness," particularly when counsel has significant experience litigating similar cases. Boyd v.

9 Bechtel Corp., 485 F.Supp. 610,622 (N.D. Cal. 1979); Ellis, 87 F.R.D. at 18 ("the fact that

10 experienced counsel involved in the case approved the settlement after hard-fought negotiations is

11 entitled to considerable weight").

12

When determining whether to grant final approval, "the court's intrusion upon what is

13 otherwise a private consensual agreement negotiated between the parties to a lawsuit must be limited

14 to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or

15 overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a

16 whole, is fair, reasonable and adequate to all concerned." Officers for Justice, 688 F.2d at 625; see

17 also Hanlon, 150 F.3d at 1026 ("It is the settlement taken as a whole, rather than the individual

18. component parts, that must be examined for overall fairness.").

19

ARGUMENT

20 I. 21

THE COURT SHOULD GRANT FINAL APPROVAL TO THE SETTLEMENT AND CONSENT DECREE.

22

A. The Consent Decree Provides Exceptional Injunctive and Monetary Relief to the

Class. 23

24

1. The Consent Decree Provides Exceptional Injunctive Relief.

25

The proposed Consent Decree provides exceptional injunctive relief that will materially

26 advance the goal of equal employment opportunity for African-American and Latino employees at

27 FedEx.

28

With respect to plaintiffs' promotions claims, the Consent Decree requires FedEx to

12
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 discontinue use of the allegedly biased BST for Courier, Ramp Transport Driver, and Customer

2 Service Agent positions, and it prevents FedEx from requiring passage of any alternative cognitive

3 ability test during the period of the Decree. See Consent Decree Section XI.A. The Decree also

4 includes requirements that any new selection device for the positions listed above be monitored for

5 adverse impact (with reports to Monitoring Counsel); that hourly positions be filled through the

6 JCATS system, with very limited authorized exceptions; that mangers only be permitted to "verify" -

7 not approve - employees' satisfaction of minimum objective requirements for JCATS positions; and

8 that FedEx provide information about the ASPIRE program on the company intranet and through

9 offline materials, and permit enrollment in ASPIRE whenever an employee meets specified eligibility

10 requirements. !d.

11

The Consent Decree addresses plaintiffs' compensation claims by providing extensive

12 injunctive relief with respect to the allegedly discriminatory performance evaluation process, which

13 affects employee pay. FedEx must monitor whether the subjective components of its performance

14 evaluations for Handlers, Couriers, and Operations Managers have a statistically significant adverse

15 impact (i.e., result in two negative standard deviations of disparity), must report the results of its

16 monitoring to Monitoring Counsel, and must validate under the Uniform Guidelines on Employee

17 Selection Procedures, 41 CFR §§60-3.1 et seq., any subjective portions of the performance evaluation

18 or associated processes for which a statistically significant disparity is found. See Consent Decree

19 Section XII.7. FedEx must also develop a mandatory training module to train managers regarding

20 accurate and consistent performance reviews (with a focus on the items addressed in the Decree);

21 develop and communicate clear guidelines setting forth specific circumstances for which an exception

22 to the ordinary rating scale may be given; enforce the requirement that all exception scores be

23 approved by the location Senior Manager and be documented by written reasons; and add a

24 performance review item to its location audit process to audit a sample of performance reviews to

25 ensure that the guidelines and rating scales for objective scores are followed and that any exception

26 ratings are fully documented and approved as required. Id.

27

With respect to plaintiffs' discipline claims, the.Consent Decree requires FedEx to review its

28 Acceptable Conduct and Performance Improvement policies to provide for greater consistency in the

13
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 use of disciplinary tools such as warning letters and performance reminders. Id. Section XIV.A.l.

2 FedEx must develop a mandatory training module to train managers in proper, consistent, and neutral

3 application of the Acceptable Conduct and Performance Improvement policies, id. Section XIV.A.4,

4 and FedEx must enforce its policy requiring a written record for all discipline. !d. Section XIV.A.2.

5

The Consent Decree also provides relief with respect to the complaint processes employees

6 may use to challenge discriminatory treatment. FedEx must track complaints of discrimination, create

7 a Monitoring Panel to regularly review a sample of complaints and make any appropriate

8 recommendations regarding their investigation and resolution, and provide its complaint tracking

9 spreadsheets to both the Monitoring Panel and Monitoring Counsel. Id. Section XV. FedEx must

10 revise the Guaranteed Fair Treatment Process so that employees are only encouraged, not required, to

11 discuss their GFT complaint with the decision-maker, and to provide employees a reasonable time

12 before a GFT hearing to respond to the company's decision. Id. Section XVI.

13

2. The Monetary Relief Provided by the Decree Is Substantial and Fairly

Allocated. 14

15

The Consent Decree provides substantial monetary relief. The total fund created by the Decree

16 will be approximately $55 million, with nearly $38.5 million allocated for payments directly to the

17 class. !d. Section XXII. In order to claim monetary benefits, class members need only complete and

18 then affirm the accuracy of a one-page information sheet, which asks for contact information, racial or

19 ethnic background, positions and dates worked for FedEx (with information from FedEx's records

20 already filled in, so that claimants need only review for accuracy), and information regarding whether

21 the claimant has taken, passed, or failed the BST (again with information from FedEx's records

22 already filled in). See May 14, 2007 Order Approving Revised Notice and Claim Form, Ex. A (Doc.

23 734).9

24

Each class member's monetary recovery will be determined according to an objective points

25
26 9 The claim form submitted with plaintiffs' motion for preliminary approval also asked claimants to state whether they believed they had been discriminated against. Plaintiffs (in consultation with
27 FedEx) later revised the claim form to eliminate that question, and the Court approved the revised claim form. The revision takes account of the fact that class members may not know whether they
28 have been discriminated against, particularly in this case involving disparate impact claims.

14
MOTION FOR FINAL SETILEMENT APPROVAL; CASE NO. C 03-2659 Sl; C 03-2878 SI

1 system. See Consent Decree Section XXILL. No class member will be required to prove that he or

2 she suffered any specific amount of damage, or to attempt to estimate monetary damage suffered. See

3 id.; May 14 Order, Ex. A.

4

For hourly employees, points will be awarded based on three factors: (1) length of service for

5 FedEx during the class period; (2) status as a full-time or part-time employee; and (3) whether the class

6 member failed the BST. See Consent Decree Section XXII.L. The length of service factor recognizes

7 that longer term employees are more likely to have suffered discrimination; that their damages (as a

8 percentage of pay that they would have earned but for discrimination) are likely to be higher because

9 they worked a longer time during the class period; and that their damages may have been compounded

10 over time (i. e., if a poor performance review affected compensation for many subsequent years). The

11 full-time versus part-time factor takes account ofthe fact that employees on the job for more time are

12 more likely to have suffered discrimination, and that part-time employees earn less, which inevitably

13 means that any reduction in pay as a result of discrimination would have been less as an absolute

14 amount. Finally, the BST factor reflects that plaintiffs alleged a disparate impact claim based

15 primarily on the BST, and that this claim was one of the strongest in the case.

16

For Operations Manager claimants, the relevant factor considered in awarding points will be

17 length of service. This consideration is relevant for the reasons given above. Because Operations

18 Managers do not work part-time and do not have promotions claims, the part-time versus full-time and

19 BST factors are not relevant for operations manger class members.

20

B. The Reaction of the Class Supports Approval of the Settlement.

21

Class notice and claim forms were sent to 23,790 class members and potential class

22 members on May 23,2007. See Dec!. of Mark Patton ,-r2. The list of notice recipients was determined

23 using data provided by FedEx and data gathered by class counsel during the course oflitigation.

24 Information about the settlement was provided at two web sites - www.FedExExpressClaims.com and

25 www.racecaseagainstfedex.com. The settlement also generated substantial news coverage.

26

Objections and opt-outs are due July 7,2007 and class member claims must be postmarked by

27 August 1, 2007. See id. ,-r,-r 5, 8-9. As of July 2, 2007, the claims administrator had already received

28 approximately 8,426 claims. Id. ,-r5. Only 12 class members have submitted opt-out requests, and two

15
MOTION FOR FINAL SETILEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 of those 12 have already rescinded their opt outs. Id. ~8. Only one class member has submitted an

2 objection. Id. ~9. This overwhelming class member support for the settlement strongly favors final

3 approval.

4

The single objection submitted to date was filed by Brett Hoiland, one of the 18 declarants for

5 whom plaintiffs seek $5,000 service awards in a separate motion filed today. See Decl. of James M.

6 Finberg Ex. A. Mr. Hoiland's objection is without merit. First, Mr. Hoiland objects that other class

7 members may recover under the settlement even though they "never came forward with their

8 individual claims." This is essentially an objection to the class action process itself, which is expressly

9 permitted by Federal Rule of Civil Procedure 23 and which was already approved with respect to this

10 case by the Court when it granted class certification. Rule 23 recognizes - as Mr. Hoiland does

11 himself, elsewhere in his letter - that many individuals may be harmed in the same or similar ways by

12 a common unlawful practice and that it would be administratively inefficient and often prohibitively

13 expensive to require each individual who had been similarly harmed to litigate his or her claim

14 separately. There are also many reasons why a class member in this case might not have come forward

15 with an individual claim, including fear of possible retaliation or because the individual did not know

16 that he or she had been discriminated against (e.g., ifthe individual failed the BST but did not know

17 that the BST had an adverse impact or did not know that he or she was compensated less than a

18 similarly situated white.

19

Second, Mr. Hoiland appears to object on the basis that he believes his claim is stronger than

20 others' and that his precise amount of damage should be calculated separately. As explained above,

21 the parties have agreed on a point system to determine individual payments that takes account of

22 several factors that serve as a proxy for the strength of individual damage claims. This procedure

23 strikes an appropriate balance between taking fair account of the differing strengths of individual

24 claims and permitting class members to claim without imposing onerous burdens of proof on each

25 individual claimant. Mr. Hoiland's suggested alternative, which would require separate damages

26 hearings for each individual class member, would be very expensive, exceedingly administratively

27 complex, and would likely delay recovery for years.

28

Finally, Mr. Hoiland states that ifhe could, he would opt out of the class, but he believes his

16
MOTION FOR FINAL SETILEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 claims are time-barred. IfMr. Hoiland's claims are in fact time-barred, then he cannot possibly be

2 receiving less through this class action than he would through a separate suit. And ifMr. Hoiland's

3 claims are not time-barred (i.e., ifthe filing of this case tolled the statute oflimitations as to his claims)

4 then Mr. Hoiland is free to opt out and to pursue his claims separately.

5

C. The Litigation Involved Substantial Potential Risks.

6

The "risk, expense, complexity, and likely duration of further litigation" are factors to be

7 considered in assessing a proposed settlement. Hanlon, 150 F.3d at 1026.

8

The factual and legal issues in this case are complex, as demonstrated by the parties' years of

9 hard-fought litigation and the terms of the Consent Decree itself. Any liability phase trial of plaintiffs'

10 claims - which involve thousands of class members employed throughout FedEx's Western Region-

11 would also be complex and would require substantial additional preparation and many fact and expert

12 witnesses. Remedial phrase proceedings would add to this complexity.

13

All of these complex proceedings would be expensive and would result in significant delay

14 before any potential recovery. FedEx has also already sought an appeal to the Ninth Circuit, and

15 additional appeals would likely follow any trial on the merits. Appeals would, at a minimum, cause

16 additional delay.

17

Litigating the case to trial also presents substantial risks. Although plaintiffs and class counsel

18 believe class members' claims are strong, it is clear that FedEx would put on a vigorous defense, and it

19 would ultimately be up to the fact-finder to determine, for example, whether FedEx acted with a

20 prohibited discriminatory intent or whether the BST has had a prohibited discriminatory impact that

21 cannot be defended onjob relatedness or business necessity grounds.

22

In contrast to the complexity, delay, risk and expense of continuing litigation, the proposed

23 settlement will yield a prompt, certain, and substantial recovery for class members.

24

25

D. The Parties Conducted Extensive Investigation and Analysis and the Settlement

Was Reached through Arms' Length Negotiations.

26

27

The parties engaged in extensive fact-gathering, motion practice, and informal and formal

28 discovery before agreeing to the terms of the proposed Consent Decree. By the time the Decree was

17
MOTION FOR FINAL SETILEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 finally negotiated, all fact discovery had concluded, almost all expert discovery had concluded, and the

2 Court had ruled on numerous issues, including several motions in limine about trial evidence.

3

The Court issued an order relating the Caldwell and Satchell cases on September 25,2003, and

4 the cases were consolidated for all purposes on November 13, 2003. The parties then conducted

5 extensive discovery related to class certification throughout the first half of2004. See Finberg Decl.

6 ,-r18. On September 11,2004, plaintiffs moved for class certification. !d. FedEx separately sought

7 summary judgment as to six of the named plaintiffs. Id. ,-r19. These motions were litigated during the

8 fall of2004 and winter of2005. Id. ,-r20. Plaintiffs opposed summary judgment, moved to compel

9 additional discovery, and sought relief from FedEx's summary judgment motions pursuant to Federal

10 Rule of Civil Procedure 56(f). Id. On March 21,2005, the Court granted plaintiffs' motion to compel

11 and Rule 56(f) motion. Id. ,-r21. On September 28,2005 the Court granted class certification and 12 denied FedEx's summary judgment motions pending further discovery. Id. lO

13

The parties conducted broad, extensive and thorough merits discovery through the end of2005

14 and throughout 2006. Altogether, class counsel conducted approximately 122 depositions, including

15 five expert depositions and approximately42 depositions of subject matter experts designated pursuant

16 to Rule 30(b)(6). Id. ,-r25. Class counsel also defended approximately 71 depositions, including 9

17 named plaintiff depositions and approximately 47 depositions of additional class members and FedEx

18 employees. Id. In addition, Class counsel spoke with approximately 1,000 class members, thoroughly

19 interviewed many hundreds, and analyzed the information from those interviews. !d.,-r23.

20

Written fact discovery included 29 sets of document requests, nine sets of interrogatories, and

21 requests for admission propounded by plaintiffs, and multiple sets of document requests,

22 interrogatories, and requests for admission propounded by FedEx. Id. Class counsel reviewed many

23 tens of thousands of pages of documents produced in discovery. !d. ,-r24. Class counsel also received

24 and analyzed, with expert assistance, computerized personnel and payroll data for the period from

25 1997 through October 2006. Id.

26
27 10 FedEx sought to appeal the Court's class certification order to the Ninth Circuit Court of Appeals and sought a stay of the district court proceedings pending that appeal. This Court denied FedEx's
28 motion for a stay, and the Ninth Circuit denied FedEx's petition for an appeal.

18
MOTION FOR FINAL SETILEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1

In June, September, and December 2006, the parties served and filed expert reports, rebuttal

2 expert reports, and surrebuttal expert reports, including reports prepared by statisticians, industrial

3 organizational psychologists, labor economists, a sociologist, a social psychologist, and a management

4 practices specialist. Id. ~26.

5

Litigation also continued in the form of motion practice and trial preparation. The parties

6 litigated numerous discovery disputes, exchanged exhibit lists, prepared jury verdict forms, and filed

7 and briefed many motions in limine. !d. ~27.

8

At the instruction of the Court, the parties participated in negotiations with the assistance of an

9 experienced mediator, Hunter Hughes. The parties' negotiations were protracted and required multiple

10 lengthy sessions, including face-to-face meetings in April 2006, December 2006, February 2007, early

11 March 2007, and late March 2007. !d. ~28. Under the supervision of the mediator, all negotiations

12 were conducted at arms' length and in good faith. Id. ~29.

13

The extensive discovery, fact-gathering and motion practice allowed class counsel- who are

14 experienced employment discrimination attorneys - to assess the strengths and weaknesses of the

15 claims against FedEx and the benefits of the proposed settlement under the circumstances of this case. 16 !d. ~30. As a result of discovery exchanges and communications with class· members, class counsel

17 were well informed regarding FedEx's policies and practices and relied on that information in

18 negotiating the injunctive relief terms of the Consent Decree. !d. ~31.

19

Class counsel were also well informed regarding the potential for monetary recovery.

20 Plaintiffs' statistical experts performed promotions and compensation analyses, and then a damages

21 analysis, using the computerized personneland payroll data provided by FedEx. Id. ~32. FedEx's

22 experts did the same. Id. The parties' expert calculations formed the basis for negotiations regarding

23 the monetary terms ofthe settlement. Id.

24

In sum, theproposed Consent Decree is the non-collusive result of extensive factual and legal

25 analysis and protracted arms' length negotiations between experienced and well-informed counsel

26 under the supervision of an experienced mediator.

27

28

19
MOTION FOR FINAL SETTLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

-

1

E. The Recommendations of Experienced Counsel Favor Approval of the Settlement.

2

The judgment of experienced counsel regarding the settlement is entitled to significant

3 weight, see, e.g., Hanlon, 150 F.3d at 1026, and the recommendation of experienced class counsel

4 should be given a presumption of reasonableness. See Boyd, 485 F.Supp. at 622.

5

Class counsel have extensive experience prosecuting and litigating employment discrimination

6 cases and complex class actions. See Finberg Decl. ~~4-12; Decl. of Barry Goldstein ~~4-12; see also

7 Dermody Decl. ~~3-26 (attached as Ex. B to the June 22, 2007 Declaration of Eve H. Cervantez ISO

8 Application of Plaintiffs for Attorneys' Fees and for Reimbursement of Costs and Expenses (Doc.

9 746)); Decl. of Michael S. Davis ~~4-12 (attached as Ex. C to June 22,2007 Cervantez Decl.); Decl. of

10 Kay McKenzie Parker ~~3-6 (attached as Ex. D. to June 22,2007 Cervantez Decl.); Decl. of John L.

11 Burris ~~2-13 (attached as Ex. E to June 22,2007 Cervantez Decl.); Decl. of Guy B. Wallace ~~2-1O

12 (attached as Ex. F to June 22,2007 Cervantez Decl.); Decl. of Bary Goldstein ~~5-12 (attached as Ex.

13 G. to June 22,2007 Cervantez Decl.). Class counsel conducted a comprehensive legal and factual

14 investigation into the claims in this case, see discussion supra, and class counsel firmly believe that the

15 proposed Consent Decree easily satisfies Rule 23(e)' s requirements and is in the best interest of all

16 class members. Finberg Decl. ~33; Goldstein Decl. ~13. This considered view of experienced counsel

17 weighs heavily in favor of final approval.

18 II. THE COURT SHOULD GRANT FINAL CLASS CERTIFICATION.

19

The Court's April 13,2007 preliminary approval order conditionally certified two injunctive

20 relief classes under Rule 23(b)(2) and a monetary relief Settlement Class under Rule 23(b)(3). See

21 4113/07 Order at 3-5 (Doc. 729). The Court ruled that the injunctive-relief classes satisfied all of the

22 requirements of Rule 23(a) and 23(b)(2) and that the Settlement Class satisfies all ofthe requirements

23 of Rule 23(a) and Rule 23(b)(3). Id. The Court also appointed the named plaintiffs as class

24 representatives and plaintiffs' counsel as class counsel. !d. at 5-6. No member of the class has

25 objected to class certification or the appointment of the class representatives or class counsel.

26

For this reason, in addition to the reasons stated in plaintiffs' motion for preliminary approval

27 and in the Court's April 13,2007 order, the Court should grant final certification to the injunctive-

28 relief and monetary-relief class and should confirm the appointment of class representatives and class

20
MOTION FOR FINAL SEITLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

1 counsel.

2

CONCLUSION

3

For the foregoing reasons, the Court should grant final approval to the parties' settlement, grant

4 final certification to the proposed classes, and enter the proposed Consent Decree.

5

6 Dated: June 22, 2007

ALTSHULER BERZON LLP

7

8
9 Todd M. Schneider (SEN 158253)
10 Guy B. Wallace (SBN 176151) SCHNEIDER & WALLACE
11 180 Montgomery Street, Suite 2000 San Francisco, CA 94104
12 Telephone: (415) 421-7100 Facsimile: (415) 421-7105
13 Kelly M. Dermody (SBN 171716)
14 Daniel E. Barenbaum (SBN 209261) LIEFF, CABRASER, HEIMANN &
15 BERNSTEIN, LLP 275 Battery Street, 30th Floor
16 San Francisco, CA 94111-3339 Telephone: (415) 956-1000
17 Facsimile: (415) 956-1008

By: /s/ Claire Prestel Claire Prestel (SBN 235649)
James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709) Danielle E. Leonard (SBN 218201) Claire Prestel (SBN 235649) Rebekah Evenson (SBN 207825) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
MICHAEL S. DAVIS (SBN 160045) 345 Hill Street San Francisco, CA 94109 Telephone: (415) 282-4315 Facsimile: (415) 358-5576

18 KAY MCKENZIE PARKER (SBN 143140) 225 Bush Street, 16th Floor
19 San Francisco, CA 94104 Telephone: (415) 227-9622
20 Facsimile: (415) 227-4522

JOHN BURRIS (SBN 69888) 7677 Oak Port Bldg., Suite 1120 Oakland, CA 94621 Telephone: (510) 839-5210 Facsimile: (510) 839-3882

21 Barry Goldstein (SBN 141868) GOLDSTEIN, DEMCHAK, BALLER,
22 BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000
23 Oakland, CA 94612 Telephone: (510) 763-9800
24 Facsimile: (510) 834-1417

WAUKEEN Q. MCCOY (SBN 168228) 703 Market Street, Suite 1407 San Francisco, CA 94103 Telephone: (415) 675-7705 Facsimile: (415) 675-2530

25 Class Counsel 26

27

28

21
MOTION FOR FINAL SEITLEMENT APPROVAL; CASE NO. C 03-2659 SI; C 03-2878 SI

 
 1 James M. Finberg (SBN 114850)

Eve H. Cervantez (SBN 164709)

2 Rebekah Evenson (SBN 207825)

Danielle E. Leonard (SBN 218201)

3 Claire Prestel (SBN 235649)

ALTSHULER BERZON LLP

4 177 Post Street, Suite 300

San Francisco, CA 94108

5 Telephone: (415) 421-7151

Facsimile: (415) 362-8064

6

Todd M. Schneider (SBN 158253)

7 Guy B. Wallace (SBN 176151)

SCHNEIDER & WALLACE

8 180 Montgomery Street, Suite 2000

San Francisco, CA 94104

9

"""'.1- 'T'~l~~h",.... ",.
1. \.I~\.I1-'.l.lvJ..1""'.

(A
\,.

1
1.

"
-'

J

A') 1 _'71 ()()
I .1 vv

Facsimile: (415) 421-7105

10

Kelly M. Dermody (SBN 171716)

11 Daniel E. Barenbaum (SBN 209261)

LIEFF, CABRASER, HEIMANN &

12 BERNSTETIN,LLP

275 Battery Street, 30th Floor

13 San Francisco, CA 94111-3339

Telephone: (415) 956-1000

14 Facsimile: (415) 956-1008

15 Additional class counsel appear on signature page.

16 UNITED STATES DISTRICT COURT
17
NORTHERN DISTRICT OF CALIFQRNIA 18

19 DERRICK SATCHELL, KALTINI BOYKTIN, VALERIE BROWN, RICK
20 GONZALES, CYNTHIA GUERRERO, RACHEL HUTCHTINS, TYRONE
21 MERRITT, KELVTIN SMITH, SR., and KEN STEVENSON, on behalf of
22 themselves and all others similarly situated,

23

Plaintiffs,

24 v.

25 FEDEX EXPRESS, a Delaware corporation,
26
Defendant. 27

Case No. C 03-2659 SI; C 03-2878 SI

CLASS ACTION

APPLICATION OF PLAINTIFFS FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES

Date: Time: Place: Judge:

August 9, 2007 3:30 p.m. Courtroom 10, 19th Floor Hon. Susan Illston

28

APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 SI; C 03-2878 SI

1

TABLE OF CONTENTS

2
3 NOTICE OF MOTION AND MOTION ......................................................................................... 1

4 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................. 1

5

I.

INTRODUCTION ................................................................................................... 1

6
II. STATEMENT OF FACTS ...................................................................................... 3
7

8

A. The Litigation .............................................................................................. 3

9

B. The Settlement ............................................................................................. 6

10

III. THE REQUESTED FEES AND COSTS ARE REASONABLE AND

11

APPROPRIATE....................................................................................................... 8

12

A. The Requested Attorneys' Fees are Reasonable.......................................... 8

13

1. Plaintiffs' Lodestar is Reasonable................................................... 9

14

2. The Attorneys' Fees Sought are Also Reasonable Under the

15

Percentage Method........................................................................ 11

16

B. The Costs for Which Class Counsel Seek Reimbursement Are

17

Reasonable ................................................................................................. 11

18

IV. CONCLUSION...................................................................................................... 13

19

20

21

22

23

24

25

26

27

28

APPLICATION FOR ATTORNEYS' FEES AND FOR

1

REIMBURSEMENT OF COSTS AND EXPENSES

CASE NO. C 03-2659 S1; C 03-2878 S1

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

3

Blum v. Stenson,

465 U.S. 886 (1984) ....................................................................................................... 9

4

Buckhannon Board and Care Home, Inc. v. West Virginia Department ofHealth

5

& Human Resources,

532 U.S. 598 (2001) ....................................................................................................... 8

6

Caudle v. Bristow Optical Co.,

7

224 F.3d 1014 (9th Cir. 2000) ....................................................................................... 9

8

Ferland v. Conrad Credit Corp.,

244 F.3d 1145 (9th Cir. 2001) ....................................................................................... 9

a
./

In re GNC Shareholder Litigation,

10

668 F. Supp. 450 (W.D. Pa. 1987)............................................................................... 12

11

In re Washington Public Power,

19 F.3d 1291 (9th Cir. 1994) ..................................................................................... 2, 9

12

Hanlon v. Chrysler Corp.,

13

150F.3d 1011 (9thCir.1998) ................................................................................. 8, 10

14

Hensley v. Eckerhart,

461 U.S. 424 (1983) ....................................................................................................... 9

15

Kerr v. Screen Extras Guild, Inc.,

16

526 F.2d 67 (9th Cir. 1975) ......................................................................................... 10

17

Paul, Johnson, Alston & Hunt v. Graulty,

886 F.2d 268 (9th Cir. 1989) ................................................................................... 2, 11

18

Six Mexican Workers v. Arizona Citrus Growers,

19

904 F.2d 1301 (9th Cir. 1990) ................................................................................. 2, 11

20

Sorenson v. Mink,

239 F.3d 1140 (9th Cir. 2001) .......................................................................................9

21

Staton v. Boeing Co.,

22

327 F.3d 938 (9th Cir. 2003) ..................................................................................... 8, 9

23

Texas State Teachers Association v. Garland School District,

489 U.S. 782 (1989) ....................................................................................................... 8

24

UEC Corp. Sec. Litig., Fed. Sec. L. Rep. P 94,376, 1989 WL. 73211 .............................. 12

25

Vizcaino v. Microsoft Corp.,

26

290 F.3d 1043 (9th Cir. 2002) ................................................................................. 2, 11

27

28

APPLICATION FOR ATIORNEYS' FEES AND FOR

11

REIMBURSEMENT OF COSTS AND EXPENSES

CASE NO. C 03-2659 SI; C 03-2878 SI

1

FEDERAL STATUTES

2

42 U.S.C. §1981 ......................................................................................................3, 4,5,8

3 42 U.S.C. § 1988.................................................................................................................. 8
4 42 U.S.C. § 2000e-5............................................................................................................. 8
5 FRCP 23 ...............................................................................................................................5
6 FRCP 56...............................................................................................................................4
7

8

MISCELLANEOUS

9

Conte, Attorneys' Fee Awards, § 2.08 at 50-51 (2d ed. 1977) ........................................... 12

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

APPLICATION FOR ATTORNEYS' FEES AND FOR

111

REIMBURSEMENT OF COSTS AND EXPENSES

CASE NO. C 03-2659 SI; C 03-2878 SI

1

NOTICE OF MOTION AND MOTION

2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on August 9, 2007, at 3:30 p.m., or as soon thereafter as

4 the matter may be heard, in Courtroom 10 ofthe United States District Court of the Northern

5 District of California, located at 450 Golden Gate Avenue, 19th Floor, San Francisco, California,

6 Plaintiffs Derrick Satchell, Kalini Boykin, Valerie Brown, Rick Gonzales, Cynthia Guerrero,

7 Rachel Hutchins, Tyrone Merritt, Kelvin Smith, Sr., and Ken Stevenson, on behalf of themselves

8 and all others similarly situated, will apply, and hereby do apply, to this Court for an order

9 awarding to Class Counsel, on behalf of Plaintiffs and the Class, reasonable attorneys' fees of

10 $12,425,000, and reimbursement of litigation costs and expenses of $2,575,000.

11

The Application is based on this Notice; the Memorandum of Points and Authorities; the

12 Order (1) Conditionally Certifying Settlement Classes; (2) Granting PreliminaryApproval to 13 Proposed Class Action Settlement, Consent Decree, ~d Plan of Allocation; (3) Directing

14 Dissemination ofNotice And Claim Form to the Class; and (4) Setting Date for Fairness Hearing

15 and Related Events, dated April 13, 2007 (Doc. No. 729) ("Preliminary Approval Order"); the

16 [Proposed] Consent Decree (Doc. No. 729, Exhibit 1) preliminarily approved by the Court;

17 Stipulation and [Proposed] Order Re Interpretation of Section XXII.A.l of the Consent Decree,

18 June 13,2007 (Doc. No. 737); the Declaration of James M. Finberg In Support of Motion for

19 Preliminary Approval (Doc. No. 722); the declarations of Eve H. Cervantez, James M. Finberg,

20 Guy B. Wallace, John Burris, Kelly M. Dermody, Kay McKenzie Parker, Barry Goldstein, and

21 Michael S. Davis, submitted herewith; the pleadings and papers filed in this case; and any oral

22 argument this Court permits.

23

MEMORANDUM OF POINTS AND AUTHORITIES

24 I. 25

INTRODUCTION Plaintiffs Derrick Satchell, Kalini Boykin, Valerie Brown, Rick Gonzales, Cynthia

26 Guerrero, Rachel Hutchins, Tyrone Merritt, Kelvin Smith, Sr., and Ken Stevenson, on behalf of

27 themselves and all others similarly situated ("Plaintiffs"), have reached a settlement with

28 Defendant Federal Express Corporation, dba FedEx Express ("FedEx"). In that settlement,

- 1-

APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 S1; C 03-2878 S1

1 FedEx agreed to pay to Class Counsel, on behalf of Plaintiffs, attorneys' fees and costs and

2 expenses in a total amount of $15,000,000 for work performed through final approval.

3 [Proposed] Consent Decree (Doc. No. 729, Exhibit 1) ("Consent Decree"), ~ XXIII.B.2.

4 Although Plaintiffs' attorneys' fees and litigation costs and expenses to date far exceed that

5 amount, see Declaration of Eve H. Cervantez in Support of Application for Award of Attorneys'

6 Fees and Reimbursement of Costs and Expenses ("Cervantez Decl.") ~ 2, Class Counsel's request

7 is limited to the amount specified in the Consent Decree and the Notice sent to the Class. Class

8 Counsel are applying for $12,425,000 in fees and $2,575,000 as reimbursement for costs and

9

_il. . . pV1."t'\-p....n....~... _p~......1.."_p_<'loIJ'~-'n.Ln....<_'_ lh...h.JT .i..n....l..'_l1_1"...1..."_pr-l i n .L.a.... l'nnnpl'tinn __...........__ ..... _ ...... urith thp " ......................._ .1I:""\'.1&".n"-~"pul_'-_l.1...t. _in...n.... nf' '-'..L t"'.h...Li.L~U <'Il'tinn _ ........." .......

10

Attorneys' fee and cost amounts negotiated at arms length should be approved if the

11 negotiated amounts are fair and reasonable. Here, the negotiated amounts requested by Class

12 Counsel are fair and reasonable, whether assessed under the percentage of a common fund

13 approach or the lodestar approach. Viewed under the lodestar method, Class Counsel's detailed

14 time records support an award well in excess of the amount requested. Altogether, the lodestar of

15 seven of the eight Class Counsel firms is $13,166,739.25, yet Class Counsel seek to recover only

16 $12,425,000 in fees. As a percentage, the fees requested are only approximately 22.6% of the

17 almost $55 million fund created for the benefit of the class -less than the Ninth Circuit

18 benchmark of25%. See, e.g., Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002); In re

19 Washington Pub. Power, 19 F.3d 1291 (9th Cir. 1994); Six Mexican Workers v. Arizona Citrus

20 Growers, 904 F.2d 1301 (9th Ck 1990); Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268

21 (9th Cir. 1989). Moreover, the $2,655,208.78 in costs represents costs actually advanced. These

22 costs were necessary and appropriate, and typical of litigation of this type and size.

23

Pursuant to this Court's Preliminary Approval Order, the Court-Approved Notice of

24 Settlement was mailed to approximately 23,000 Class Members on May 23,2007. The Notice

25 stated the amount requested in attorneys' fees and costs, and the procedure for objecting to these

26 amounts. To date, no Class Member has objected to the requested fees and costs. Cervantez 27 Decl. ~ 15.1

28

1 The deadline for objections is July 7, 2007. If objections to counsel's fees and costs are

_2 _

APPLICATION FORATIORNEYS'FEESANDFOR

REIMBURSEMENT OF COSTS AND EXPENSES

CASE NO. C 03-2659 SI; C 03-2878 SI

1 II. STATEMENT OF FACTS

2

A. The Litigation

3

On September 25,2003, the Court issued an order relating the Caldwell and Satchell

4 cases, and, on November 13,2003, the cases were consolidated for all purposes pursuant to

5 stipulation.

6

Plaintiffs filed a First Consolidated Amended Complaint on November 12,2003. The

7 Consolidated Complaint, filed by nine class representatives, asserted claims on behalf of two

8 classes, a class of hourly employees and a class of salaried low-level managerial employees. The

9 Consolidated Complaint asserted claims for race and national origin discrimination on behalf of

10 African Americans and Latinos under 42 U.S.C. §1981, Title VII, and, with respect to California

11 class members, FEHA. The Consolidated Complaint limited its claims and the scope of the

12 putative class to FedEx's Western Region.

13

On October 12,2005, plaintiffs filed a Second Consolidated Amended Complaint, adding

14 Tyrone Merritt, who had a claim regarding FedEx's Basic Skills Test ("BST"), as a class

15 representative.

16

On November 14,2006, the Court granted plaintiffs' motion for leave to file a Third

17 Amended Complaint. The Third Complaint eliminated the class FEHA claim and broke the Title

18 VII cause of action into separate claims for disparate impact and disparate treatment.

19

Class Counsel have actively prosecuted this case. They conducted extensive discovery

20 and participated in hard-fought motion practice on a variety of procedural, discovery, merits, and

21 evidentiary issues. By the time the Consent Decree was finally negotiated, all fact discovery had

22 concluded, almost all expert discovery had concluded, and the Court had ruled on numerous

23 issues, including several motions in limine about trial evidence. In short, Class Counsel were

24 fully prepared to try the case, and had expended considerable effort to reach that point.

25

Plaintiffs conducted an extensive pre-filing investigation. Declaration of Michael S.

26 Davis in Support of Application of Plaintiffs for Attorneys' Fees and for Reimbursement of Costs

27

28 submitted after this Application is filed, Plaintiffs will file a reply brief on or before August 2, 2007.

-3-

APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 SI; C 03-2878 SI

1 and Expenses ("Davis Decl."), ~~ 21-25 (attached as Exhibit C to the Cervantez Decl.). Once the
2 Consolidated Amended Complaint was filed, the parties conducted discovery related to class

3 certification throughout the first half of 2004. See Declaration of James M. Finberg In Support of 4 Motion for Preliminary Approval (Doc. No. 722) ("Finberg Preliminary Approval Decl."), ~17.

5 On September 11,2004, plaintiffs moved for class certification. FedEx separately sought

6 summary judgment as to six of the named plaintiffs. These motions were litigated during the fall

7 of 2004 and winter of2005. Plaintiffs opposed summary judgment, moved to compel additional

8 discovery, and sought relief from FedEx's summary judgment motions pursuant to FRCP 56(f).

9

On March 21,2005, the Cou..rt gra.l1ted plaintiffs' motion to compel discovery and Rule

10 56(f) motion. On September 28,2005, the Court granted class certification and denied FedEx's

11 summary judgment motions pending further discovery. In its class certification order, the Court

12 certified two classes nearly identical to the classes now proposed as part of the parties' settlement:

13

1. A "Minority Employee Class" consisting of all African-

American and Latino Handlers, Freight Handlers, Material

14

Handlers, Checker-Sorters, Customer Service Agents, Couriers,

Swing Drivers, Ramp Transport Drivers, Ramp Area Drivers,

15

Shuttle Drivers, Dangerous Goods Agents, Information Agents,

Operations Agents, Ramp Agents, Service Assurance Agents,

16

Truck Control Agents, Trace Representatives, Input Auditors, Team

Leaders, and Dispatchers, working in defendant' s Western Region,

17

who are or were employed during the class period, who allege

claims of employment discrimination in violation of Title VII ofthe

18

Civil Rights Act of 1964 (both disparate impact and disparate

treatment), 42 U.S.C. §1981, and for those class members working,

19

or who worked, in California, the California Fair Employment and

Housing Act; and 20

2. An "African-American Lower-Level Manager Class" consisting

21

of all African-American Operations Managers working in

defendant's Western Region during the class period who allege

22

claims of employment discrimination in violation of Title VII of the

Civil Rights Act of 1964 (both disparate impact and disparate

23

treatment), 42 U.S.C. §1981, and for those class members working,

or who worked, in California, the California Fair Employment and

24

Housing Act.

25 See Order re: Plaintiffs' Mot. for Class Certification, Sept. 28, 2005 (Doc. No. 353). The Court

26 certified plaintiffs' Title VII, §1981, and FEHA claims for Rule 23(b)(2) class treatment during

27 the first phase of the case, which was limited to liability and equitable relief. The Court also set

28 forth several different liability periods depending on plaintiffs' claims. The longest class period -

-4-

APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 SI; C 03-2878 SI

1 for plaintiffs' §1981 claims regarding compensation and certain promotions - began on October

2 17, 1999.

3

FedEx sought to appeal the Court's class certification order to the Ninth Circuit Court of

4 Appeals pursuant to FRCP 23(t), and, on October 14,2005, sought a stay of the district court

5 proceedings pending the outcome of that appeal. This Court denied FedEx's motion for a stay,

6 and the Ninth Circuit denied FedEx's Rule 23(t) petition on December 12, 2005.

7

The parties conducted broad, extensive and thorough discovery on the merits of the action

8 through the end of 2005 and all of 2006. Altogether, the written fact discovery conducted in this

9 case included 29 sets of dOCll..111ent requests, nine sets of interrogatories, and requests for

10 admission propounded by plaintiffs, and multiple sets of document requests, interrogatories, and

11 requests for admission propounded by FedEx. See Finberg Preliminary Approval Decl. '1[22.

12 Class Counsel reviewed several hundreds of thousands of pages of documents that were produced

13 in discovery. Class Counsel reviewed, and, with expert assistance, analyzed computerized

14 personnel and payroll data from 1997 through October 2006. See id '1[23.

15

Deposition discovery was also extensive. Plaintiffs deposed approximately 122

16 individuals, including approximately 42 corporate designees who testified on a variety of topics,

17 including FedEx's personnel policies, evaluations, training, computerized records, retention of

18 documents, the BST, and the reasons for employment actions against specific class members. See

19 id '1[24. Plaintiffs also defended approximately 71 depositions, including plaintiffs, class

20 members, and experts. See id

21

In June, September, and December 2006, the parties served and filed expert reports,

22 rebuttal expert reports, and surrebuttal expert reports, including reports prepared by statisticians,

23 industrial organizational psychologists, labor economists, a sociologist, a social psychologist, and

24 a management practices specialist. Plaintiffs and FedEx each took depositions over several days

25 of approximately five experts each. Id '1[25.

26

In the winter of 2006, the parties exchanged lists of trial exhibits. The parties also

27 prepared jury verdict forms and questionnaires. In December 2006 and January 2007, the parties

28 filed and briefed many motions in limine. Id'l[26.

-5-

APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 S1; C 03-2878 S1

1

B. The Settlement

2

At the instruction of the Court, the parties participated in negotiations with the assistance

3 of an experienced mediator, Hunter Hughes of Atlanta, Georgia. The parties had face-to-face

4 negotiating sessions in April 2006, December 2006, February 2007, and March 2007. fd. ~27.

5 Under the supervision of the mediator, the parties' negotiations were conducted at arms' length.

6 fd. ~28. As a result of these negotiations, Plaintiffs and FedEx achieved a settlement of this case

7 that included extensive programmatic relief and approximately $55 million in monetary relief,

8 which included $15 million designated to pay attorneys' fees, costs, and expenses. See Consent

9 Decree ~ XXILA.l; see also Stipulation and [Proposed] Order Re Interpretation of Section

10 XXILA.l of the Consent Decree, June 13,2007 (Doc No. 737). The terms of the parties'

11 agreement following negotiations are contained in the Consent Decree, preliminarily approved by

12 this Court on April 13, 2007. Preliminary Approval Order, April 13, 2007 (Doc. No. 729).

13

The provision in the Consent Decree that FedEx will pay $15 million in attorneys' fees

14 and costs for work performed by Class Counsel through the final approval hearing was negotiated

15 at arms length with the assistance of mediator Hunter Hughes. Declaration of James M. Finberg

16 in Support of Application of Plaintiffs for Attorneys' Fees and for Reimbursement of Costs and

17 Expenses ("Finberg Decl."), ~ 28 (attached as Exhibit A to the Cervantez Decl.). There was no

18 trade-off of injunctive relief for attorneys' fees. fd. Nor was there a trade-off of monetary relief

19 for attorneys' fees. fd. Rather, in February 2007, after the negotiations over injunctive relief and

20 monetary relief had made substantial progress, mediator Hughes asked Class Counsel to provide

21 him with their day by day detailed lodestar and an itemization of their costs and expenses. fd.

22 Mediator Hughes received that information from almost all of the firms serving as Class Counsel.

23 fd. After receiving that information, and discussing the reasonableness of Class Counsel's

24 lodestar with Counsel for FedEx, and after taking into account the need for some additional work

25 (but not as much work as was ultimately needed), mediator Hughes made a "mediator's proposal"

26 of $15 million in attorneys' fees and costs for work performed through final approval. Both sides

27 agreed to the mediator's proposal. fd.

28

Class Counsel's extraordinary efforts over many years on behalf of a class of over 20,000

-6 -

APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 SI; C 03-2878 SI

1 current and former African-American and Latino employees of FedEx in several different salaried

2 and hourly job classifications have resulted in comprehensive programmatic relief, including

3 making changes in FedEx's selection practices (including the elimination of the Basic Skills Test

4 and manager approval of promotion applications), performance evaluations, and disciplinary

5 policies; requiring new diversity training, record-keeping, and data collection; and calling for on-

6 going monitoring by representatives of Class Counsel and a Special Master, plus monetary relief

7 of approximately $55 million.

8

Together, the Law Offices of Michael S. Davis, Kay McKenzie Parker, and John Burris;

9 the law firms of Altshuler Berzon LLP, Sc!meider & Wallace, Lieff, Cabraser, Heimann &

10 Bernstein, LLP; and Barry Goldstein, of counsel to Goldstein, Demchack, Baller, Borgen &

11 Dardarian have performed approximately 33,173.55 hours of work, having a lodestar value of

12 $13,166,739.25, on behalf of the Plaintiff Classes, as summarized in the declarations submitted

13 by each firm or attorney. See Cervantez Decl. ~ 4; Finberg Decl. ~ 24; Declaration of Kelly M.

14 Dermody in Support of Application of Plaintiffs for Attorneys' Fees and for Reimbursement of

15 Costs and Expenses ("Dermody Decl."), ~ 35 (attached as Exhibit B to the Cervantez Decl.);

16 Davis Decl. ~ 18; Declaration of Kay McKenzie Parker in Support of Application of Plaintiffs for

17 Attorneys' Fees and for Reimbursement of Costs and Expenses ("Parker Decl."), ~ 10 (attached

18 as Exhibit D to the Cervantez Decl.); Declaration of John Burris in Support of Application of

19 Plaintiffs for Attorneys' Fees and for Reimbursement of Costs and Expenses ("Burris Decl."), ~

20 18 (attached as Exhibit E to the Cervantez Decl.); Declaration of Guy B. Wallace in Support of

21 Application of Plaintiffs for Attorneys' Fees and for Reimbursement of Costs and Expenses

22 ("Wallace Decl."), ~ 12 (attached as Exhibit F to the Cervantez Decl.); Declaration of Barry

23 Goldstein in Support of Application of Plaintiffs for Attorneys' Fees and for Reimbursement of 24 Costs and Expenses ("Goldstein Decl."), ~ 21 (attached as Exhibit G to the Cervantez Decl.).2 As

25 set forth in the attached declarations, in reaching this figure, each of these attorneys and law firms

26 has exercised billing judgment, reducing the lodestar submitted to exclude redundancies,

27
2 The Law Office of Waukeen McCoy was also appointed Class Counsel, but has not provided
28 other Class Counsel with time-records or a declaration stating the total amount of work performed. See Cervantez Decl. ~ 13.

-7 -

APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 SI; C 03-2878 SI

1 inefficiencies, or other time not appropriately charged to a paying client. Finberg Decl., 'if 26; 2 Dermody Decl., 'if'if 28,32; Davis Decl., 'if 20; Parker Decl., 'if 10; Burris Decl., 'if 16; Wallace 3 Decl., 'if 46; Goldstein Decl., 'if'if 16-17. As further set forth in the Class Counsel's declarations,
4 Class Counsel have also eliminated all time spend preparing this fee petition even though they are
5 entitled to "fees on fees." Cervantez Decl., 'if 14; Dermody Decl., 'if 32; Davis Decl., 'if 20; Burris 6 Decl., 'if 16. Moreover, the attached declarations report time only through May 31, 2007, and thus

7 do not include manay hours of additional time that Class Counsel has spent and will continue to 8 spend counseling class members about the settlement and moving for Final Approval ofthe 9 settlement. Cerlantez Dec!. ~ 4; Finberg Dec!. ~ 24; Dermody Dec!. ,,35; Davis Dec!. ~ 18;
10 Parker Decl. 'if 10 Burris Decl. 'if 18; Wallace Decl. 'if 12; Goldstein Decl. 'if 21. Thus, the value of

11 the actual time spent on the case far exceeds the $13,166,739.25 gross lodestar amount.

12 III. THE REQUESTED FEES AND COSTS ARE REASONABLE AND APPROPRIATE.
13
A. The Requested Attorneys' Fees are Reasonable.
14 "Attorneys' fees provisions included in proposed class action settlement agreements are,
15 like every other aspect of such agreements, subject to the determination whether the settlement is
16 "fundamentally fair, adequate, and reasonable." Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir.
17 2003) (quoting Fed. R. Civ. Proc. 23(e)). Where attorneys' fees are negotiated separately from
18 the class relief, and are separately provided for in the Consent Decree, the appropriate method for
19 determining the reasonableness of the fees is the lodestar method, applicable to fee recoveries
20 under fee-shifting statutes, with the percentage of recovery method used as a cross-check on
21 reasonableness. Staton, 327 F.3d at 972; Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th
22 Cir. 1998).
23 Here, Plaintiffs' entitlement to attorneys' fees derives from two fee shifting statutes.3 The
24

25 3 Title VII provides for "a reasonable attorney's fee" to a "prevailing party." 42 U.S.C. § 2000e-

5(k). Likewise, 42 U.S.C. § 1988 grants courts in cases brought under, inter alia, 42 U.S.C. §

26 1981 the discretion to "allow the prevailing party ... a reasonable attorney's fee." It is

uncontested that the Plaintiffs are a "prevailing party" for purposes of attorneys' fees. In Texas

27 State Teachers Ass 'n v. Garland School District, 489 U.S. 782 (1989), the Supreme Court ruled

that a party is a "prevailing party" if it succeeds on a significant issue and receives some of the

28 relief sought in the lawsuit. See also Buckhannon Board and Care Home, Inc. V. West Virginia

Department ofHealth & Human Resources, 532 U.S. 598, 604 (2001) ("[C]ourt-ordered consent

_8 _

APPLICATION FOR ATTORNEYS' FEES AND FOR

REIMBURSEMENT OF COSTS AND EXPENSES

CASE NO. C 03-2659 SI; C 03-2878 SI

1 fees and costs were separately negotiated at arms length with the assistance of mediator Hunter

2 Hughes, and are expressly provided for in the Consent Decree independently ofthe class

3 monetary relief. Thus, the requested fees and costs are on top of the settlement amount secured

4 for the benefit of the Class and do not in any way diminish the Class's recovery. Consequently,

5 under Staton, the lodestar is the appropriate measure of the reasonableness of the fees.

6

1. Plaintiffs' Lodestar is Reasonable.

7

The starting point for computing the lodestar amount is to multiply the number of hours

8 the prevailing party reasonably expended on the litigation by a reasonable hourly rate. See

Q
.;

10 Eckerhart, 461 U.S. 424 (1983). The court may reduce the hours claimed where the time was not

11 reasonably expended, but must provide an explanation for the reduction. Sorenson v. Mink,239

12 F.3d 1140, 1146 (9th Cir. 2001). The hourly rates used must be "in line with those prevailing in

13 the community for services by lawyers of reasonably comparable skill, experience and

14 reputation." Blum v. Stenson, 465 U.S. 886, 895 (1984). In addition, courts typically apply each

15 attorney's current rates for all hours of work regardless of when performed "as a means of

16 compensating for the delay in payment." In re Washington Public Power Supply System Sec.

17 Litig., 19 F.3d 1291, 1305 (9th Cir. 1994). Once this "raw" lodestar figure has been determined,

18 the court "may, if circumstances warrant, adjust the lodestar to account for other factors which are

19 not subsumed within it." Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n. 4 (9th Cir.

20 2001).

21

Here, the amount of attorneys' fees agreed to by the parties in the Consent Decree is

22 substantially less than the reasonable lodestar amount even after exercising billing judgment, as

23 evidenced by each firm's supporting,declarations. See Cervatnez Decl., Exhibits A-G. Class

24 Counsel thus is not seeking its full lodestar, but only the amounts agreed to under the terms of the

25 Consent Decree.

26

The tasks performed by Class Counsel for the benefit of the Class in this case over a five-

27

28 decrees create the 'material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees.").

- 9-

APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 SI; C 03-2878 SI

1 year period have included interviewing several hundred class members; drafting complaints;

2 researching a host of legal issues; reviewing and analyzing hundreds of thousands of pages of

3 documents; propounding written discovery; responding to document requests and interrogatories;

4 taking and defending almost 200 depositions; analyzing computer data regarding liability and

5 damages issues; retaining and working with experts regarding labor markets, statistics, cognitive

6 bias, and test validation; moving for class certification; opposing motions for summary judgment;

7 drafting and opposing motions in limine; preparing pretrial materials, such as exhibit and witness

8 lists and jury instructions; preparing for and participating in numerous mediation sessions;

9

10 for preliminary and final approval; and drafting and sending the notice of settlement and claim

11 forms. Class Counsel have performed this work entirely on a contingent basis and have not been

12 compensated for their time. See Cervantez Decl., Exhibit A, ~ 24 (Finberg) ; Cervantez Decl.,

13 Exhibit B, ~ 27 (Dermody); Cervantez Decl., Exhibit C, ~ 18 (Davis); Cervantez Decl., Exhibit E,

14 ~ 19 (Burris); Cervantez Decl., Exhibit G, ~ 18 (Goldstein).

15

The rates used in calculating the lodestar are likewise reasonable. Class counsel's

16 experience, reputation, and ability justify the rates charged. Class Counsel have extensive

17 experience litigating complex employment discrimination class actions, and other class actions

18 and civil rights cases. See Cervantez Decl., Exhibit A, ~~ 6-18; Cervantez Decl., Exhibit B, ~~ 5-

19 26; Cervantez Decl., Exhibit C, ~~ 5-12; Cervantez Decl., Exhibit D, ~~ 3-6; Cervantez Decl.,

20 Exhibit E, ~~ 3-13; Cervantez Decl., Exhibit F, ~~ 2-10; Cervantez Decl., Exhibit G, ~~ 7-12.

21

Based on these hours and rates, Plaintiffs' raw lodestar is $13,166,739.25.4 Under the

22 terms of the Consent Decree, however, Plaintiffs seek only $12,425,000, significantly less than

23 the presumptively reasonable lodestar amount. Accordingly, the requested fees are reasonable 24 under the lodestar method.5

25

26

27 4 Again, this excludes any work performed by the Law Office ofWaukeen McCoy.

5 Thus, although a number of the factors laid out in Kerr v. Screen Extras Guild, Inc., 526 F.2d 28 67, 70 (9th Cir. 1975), might support an enhanced award beyond the raw lodestar here, it is
unnecessary for the court to address them.

- 10-

APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 SI; C 03-2878 SI

1

2. The Attorneys' Fees Sought are Also Reasonable Under the

Percentage Method.

2

A percentage-based cross-check provides a means of confirming the reasonableness of the

3 fee. Hanlon, 150 F.3d at 1029 (approving of the district court's apparent review of the negotiated

4 fees under a lodestar methodology, then conducting a brief percentage review as a cross-check).

5 In the Ninth Circuit, the benchmark for reasonableness under the percentage-of-the-recovery

6 method is 25%. Id.; Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311

7 (9th Cir.1990); Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d at 272; see also Vizcaino v.

8 Microsoft, 290 F.3d at 1050 n.4 (finding that "a bare majority" of recent awards in "mega fund"

9 cases are "clustered in the 20-30% range"). Here, considering only the monetary relief, and

10 making no attempt to place a value on the extensive programmatic and injunctive relief secured

11 for the Class, the amount payable by FedEx for the Class's benefit is approximately $55 million.6

12 Accordingly, the requested attorneys' fees of$12,425,000 represent 22.6% of this amount, less

13 than the Ninth Circuit benchmark.

14 . Thus, the percentage-of-the-recovery cross-check confirms that the lodestar amount

15 sought by Plaintiffs is reasonable.

16 B. The Costs for Which Class Counsel Seek Reimbursement Are Reasonable
17

18

In the course of this litigation, Class Counsel have had to incur substantial costs, including

19 retainer fees paid to five experts for their extensive analysis of FedEx's polices and employee

20 data as well as for the time spent preparing for and having their depositions taken; costs

21 associated with almost 200 depositions, including court reporter costs, transcript costs, and travel

22 expenses associated with depositions taken outside the Bay Area; expenses associated with the

23 preparation, research, and filing of the many pleadings filed and responded to in this matter; costs

24 associated with copying, uploading, and analyzing hundreds of thousands of pages of documents;

25 and costs associated with retaining a mediator for and traveling to mediations around the country.

26 Dermody Decl., 'if 36a-g; Wallace Decl. 'if'if18, 23. All of these costs and expenses were advanced

27

28' 6 See Consent Decree 'if XXII.A. 1 (describing amount of monetary relief and calculation of interest).

- 11 -

APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 SI; C 03-2878 SI

1 by Class Counsel with no guarantee they would ultimately be recovered, and most were "hard" 2 costs paid out of pocket to third party vendors, court reporters, and experts. Id. These costs were 3 necessary in connection with the presentation of this litigation for the benefit of the plaintiff class. 4 Accordingly, these costs are reimbursable. See In re UEC Corp. Sec. Litig., Fed. Sec. L. Rep. P

5 94,376, 1989 WL 73211 *6; In re GNC Shareholder Litigation, 668 F. Supp. 450, 452 (W.D. Pa. 6 1987); Conte, Attorneys' Fee Awards, § 2.08 at 50-51 (2d ed. 1977). The total costs and expenses 7 incurred by seven of the eight Class Counsel in this litigation is $2,655,208.78, Cervantez Decl. ~ 8 5, and pursuant to the Consent Decree, Plaintiffs seek reimbursement for these costs in the 9 a.mount of $2,575,000. 10 II 11 II 12 II 13 II 14 II 15 II 16 II 17 II 18 II 19 II 20 II 21 II 22 II 23 II 24 II 25 II 26 II 27 II 28 II

- 12-

APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 SI; C 03-2878 SI

1 IV. CONCLUSION

2

For the forgoing reasons, Plaintiffs respectfully request this Court to approve their

3 application for attorneys' fees in the amount of $12,425,000 and reimbursement of costs and

4 expenses in the amount of$12,575,000.

5 Dated: June 22, 2007

ALTSHULER BERZON LLP

6
7
8 Todd M. Schneider (SBN 158253)
9 Guy B. Wallace (SBN 176151) SCHNEIDER & WALLACE
10 180 Montgomery Street, Suite 2000 San Francisco, CA 94104
11 Telephone: (415) 421-7100 Facsimile: (415) 421-7105
12 Kelly M. Dermody (SBN 171716)
13 Daniel E. Barenbaum (SBN 209261) LIEFF, CABRASER, HEIMANN &
14 BERNSTEIN, LLP 275 Battery Street, 30th Floor
15 San Francisco, CA 94111-3339 Telephone: (415) 956-1000
16 Facsimile: (415) 956-1008
17 KAY MCKENZIE PARKER (SBN 143140) 225 Bush Street, 16th Floor
18 San Francisco, CA 94104 Telephone: (415) 227-9622
19 Facsimile: (415) 227-4522
20 Barry Goldstein (SBN 141868) GOLDSTEIN, DEMCHAK, BALLER,
21 BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000
22 Oakland, CA 94612 Telephone: (510) 763-9800
23 Facsimile: (510) 834-1417

By: /s/ Eve H. Cervantez Eve H. Cervantez (SBN 164709)

James M. Finberg (SBN 114850)

P " p l-:r (,pr"",ntp'7 1hL17()Q\ {~RN I -....L ... \ .£oJ l' __ ......... -..- __.... l'

_~ "'-'.LIJ., .... ...., • , ....,./

Rebekah Evenson (SBN 207825)

Danielle E. Leonard (SBN 218201)

Claire Prestel (SBN 235649)

ALTSHULER BERZON LLP

177 Post Street, Suite 300

San Francisco, CA 94108

Telephone: (415) 421-7151

Facsimile: (415) 362-8064

MICHAEL S. DAVIS (SBN 160045) 345 Hill Street San Francisco, CA 94109 Telephone: (415) 282-4315 Facsimile: (415) 358-5576

JOHN BURRIS (SBN 69888) 7677 Oak Port Bldg., Suite 1120 Oakland, CA 94621 Telephone: (510) 839-5210 Facsimile: (510) 839-3882

WAUKEEN Q. MCCOY (SBN 168228) 703 Market Street, Suite 1407 San Francisco, CA 94103 Telephone: (415) 675-7705 Facsimile: (415) 675-2530

24 Class Counsel 25

26

27

28

- 13 -

APPLICATION FOR AITORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES CASE NO. C 03-2659 SI; C 03-2878 SI

 
 Case 3:03-cv-028~8 Document Z21 Filed 01/tDS/2007 Page 1 of 58
Exhibit 1 Part 1

Case 3:03-cv-028!iJ8 Document Z2A Filed 01/(1)9/2007 Page 2 of 58

1 [Names and addresses ofcounsel listed in signature page]

2

3

4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6

7 DERRICK SATCHELL, KALIN! BOYKIN,

Case No.: C03-2659 SI; C 03-2878 SI

VALERIE BROWN, RICK GONZALES,

8 CYNTHIA GUERRERO, RACHEL HUTCHINS, CLASS ACTION

TYRONE MERRIT, KELVIN SMITH, SR., and 9 KEN STEVENSON, on behalf of themselves and

[Proposed] Consent Decree

all others similarly situated,

10

Plaintiffs,

11

vs.

12 FEDERAL EXPRESS CORPORATION, d/b/a
13 FedEx Express, a Delaware Corporation,

14

Defendant.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Dl CONSENT DECREE- CASE NO.: C03-2659 SI; C 03-2878 SI

Case 3:03-cv-0285J8 Document Z21 Filed 01/0lS/2007 Page 3 of 58

1 I.

INTRODUCTION.......................................................................................................................... 1

2 II. LITIGATION BACKGROUND .................................................................................................... I

3

A. The Satchell Litigation ....................................................................................................... 1

4

B. The Caldwell Litigation ..................................................................................................... 1

5

C. The Consolidated Proceedings ...........................................................................................2

6 III. PURPOSES OF THE CONSENT DECREE .................................................................................7

7 IV. DEFINITIONS ...............................................................................................................................7

8 V. JURISDICTION ........................................................................................................................... IO

9 VI. TERM OF DECREE .................................................................................................................... 11

10 VII. SETTLEMENT CLASSES AND INJUCTIVE RELIEF CLASSES .......................................... 11

11 VIII. RELEASE OF CLAIMS ............................................................................................................... 12

12

A. Release of Claims by Settlement Class............................................................................ 12

13

B. Individual Claims of Class Representatives ..................................................................... 13

14

C. No Bar to Future Claims.................................................................................................. 13

15 IX. MISCELLANEOUS PROVISIONS ............................................................................................ 14

16

A. No Admission of Liability............................................................................................... 14

17

B. No Employment Contract ................................................................................................ 14

18

C. Modification and Severability of the Consent Decree..................................................... 14

19

D. Duty To Support and Defend the Decree......................................................................... 15

20

E. Execution In Counterparts................................................................................................ 15

21 X. GENERAL EQUITABLE PROVISIONS ................................................................................... 15

22 XI. SELECTION PRACTICES ......................................................................................................... 17

23

A. Elimination of the Basic Skills Test................................................................................. 17

24

B. Casual Employees ............................................................................................................ 17

25

C. Posting of and Applying for Hourly Positions ................................................................. 18

26

D. Promotion to Management ............................................................................................... 19

27

E. Role of Managers in the Promotion Process for Hourly Positions .................................. 19

28

F.

Adherence to Rules regarding Priority Group and CEV Score........................................20

r.ASE NO.: C03-2659 SI: C 03-2878 Sl

Case 3:03-cv-028!iJ8 Document Z2A Filed 01/(1)9/2007 Page 4 of 58

1 XII. PERFORMANCE EVALUATIONS ...........................................................................................20

2 XIII. MANAGER EVALUATION ON EEO .......................................................................................22

3 XIV. DISCIPLINE ................................................................................................................................22

4

A. Discipline Policies and Procedures ..................................................................................22

5 XV. COMPLAINT PROCEDURES/RELATED ISSUES .......................................................... ........23

6 XVI. GUARANTEED FAIR TREATMENT SYSTEM ........................................................ ..............25

7 XVII. INTERNAL COMPLIANCE/MONITORING PANEL ..............................................................25

8 XVIII. REPORTING AND RECORD KEEPING ..................................................................................26

9

A. Documents to be Preserved for the Duration of the Decree.............................................26

10

B. Access to Documents ............. .......... .. ...... ................................. .. .....................................27

11

C. Reporting Schedule ..........................................................................................................28

12

D. Contents of the Progress Report.......................................................................................28

13 XIX. DISPUTE RESOLUTION AND ENFORCEMENT PROCEDURES ........................................30

14 XX. IMPLEMENTATION AND COMMUNICATION OF COMMITMENT TO

DIVERSITY, EQUAL EMPLOYMENT OPPORTUNITY AND REQUIREMENTS

15

OF CONSENT DECREE.............................................................................................................33

16 XXI. TRAINING OF MANAGEMENT REGARDING EEO .............................................................33

17 XXII. MONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE .............................................34

18

A. Payment of the Settlement Fund ......................................................................................34

19

B. Distribution of Settlement Fund ..................... .... ..............................................................36

20

C. Notice .... ........ .......... .................................................................................. .......................36

21

D. Objections and Opt-Outs ..................................................................................................37

22

E. Claims Administration ........................... .......... ................................................................39

23

F. Submissions of Claim Forms .................................................................... .. ........ ... .. ........40

24

G. Deceased Claimants .................................................... .. ...................................................40

25

H. Determining Eligibility ......................................................... ...........................................41

26

I.

Late-Filed Claims .............................................................................................................41

27

J.

Appeals of Claims Eligibility ................................................................................. ..........41

28

K. Claimant Information Provided by FedEx Express ...... .............................. ...... ............ ...42

11 ASE NO. : C03-2659 Sl: C 03-2878 Sl

Case 3:03-cv-028S8 Document Z21 Filed 01/(1)9/2007 Page 5 of 58

1

L. Allocation Plan ........................................................................................................... ......42

2

M. Distribution of the Monetary Awards ..............................................................................43

3

N. Allocation of Monetary Awards.......................................................................................44

4

0. Confidentiality of Claimant Information .........................................................................44

5

P. Cy Pres Fund ....................................................................................................................44

6

Q. Report from Claims Administrator ..................................................................................45

7 XXIII. PAYMENT OF FEES AND COSTS TO SPECIAL MASTER, MONITORING COUNSEL AND CLASS COUNSEL .........................................................................................45
8 A. Payment to Special Master ...............................................................................................45
9 B. Award of Fees, Costs and Expenses to Class Counsel.. ..... ............................................. .45
10 C. Payment of Fees, Expenses and Costs for Work Performed after Approval Date ...........46
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

iii
fPROPOSEDl CONSENT DECREE- CASE NO.: C03-2659 SI; C 03-2878 SI

Case 3:03-cv-028S8 Document Z21 Filed 01/(1)9/2007 Page 6 of 58

1

I.

INTRODUCTION

2

As a result of negotiations supervised by a mediator, the parties have reached a voluntary

3 agreement that is contained in this Consent Decree.

4

II.

LITIGATION BACKGROUND

5

A. The Satchell Litigation

6

On December 12, 2002, Plaintiffs filed the Satchell case in the Alameda County Superior Court

7 alleging violations of the California Fair Employment and Housing Act (FEHA) and the California

8 Equal Pay Act, and asserting various common law causes of action. The Complaint was brought on

9 behalf of a putative class of women and minority individuals in California who alleged that defendant

10 FedEx Express (Defendant) and related entities and individual managers discriminate against women

11 and minorities on the basis of sex, race, color, and/or national origin, with respect to job assignment,

12 compensation, promotion and other terms and conditions of employment, by maintaining a system for

13 making decisions about promotions, assignments, transfers, discipline and compensation which is

14 excessively subjective and which has had a disparate impact on non-Caucasian employees, and through

15 which defendants discriminate against women and minority employees by denying them the same

16 opportunities for job assignments, upward mobility and compensation afforded to similarly situated

17 Caucasian and male employees.

18

On May 18, 2003, Plaintiffs filed their First Amended Complaint eliminating the statutory

19 claims of discrimination on the basis of sex, as well as several of the common law claims, and

20 dropping the individual defendants named in the original complaint.

21

On June 6, 2003, Defendants removed the case to the Northern District of California pursuant

22 to 28 U.S.C. §§ 1332 and 1441(b).

23

B. The Caldwell Litigation

24

On June 19, 2003, Plaintiffs filed the Caldwell case in the Northern District of California

25 alleging violations of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Eight named

26 plaintiffs brought the Complaint on behalf of a putative class of African American and Latino

27 individuals and made similar allegations to those in the Satchell complaint, but asserted that

28

1
NSENT DECREE- CASE NO.: C03-2659 SI; C 03-2878 SI

Case 3:03-cv-028!iJ8 Document Z2A Filed 01/(1)9/2007 Page 7 of 58

1 Defendants maintained their discriminatory policies on a nationwide basis. On June 25, 2003, 2 Plaintiffs filed their First Amended Complaint in the Caldwell case, adding as class representatives six 3 of the Satchell plaintiffs, all African American or Latino, and twenty-four additional named plaintiffs. 4 In addition, the First Amended Complaint asserted claims under FEHA on behalf of class members

5 who worked for Defendant in California.

6

c. The Consolidated Proceedings

7

On September 25, 2003, the Court issued an order relating the Caldwell and Satchell cases, and

8 on November 13, 2003, pursuant to a stipulation of the parties, the cases were consolidat~d for all

9 purposes.

10

Plaintiffs' First Consolidated Amended Complaint was filed on November 12, 2003. The

11 Consolidated Complaint dropped all plaintiffs with claims arising outside the State of California,

12 retained nine named class representatives, and dropped all defendants except FedEx Express. The

13 named plaintiffs were Derrick Satchell, Kalini Boykin, Valerie Brown, Rick Gonzales, Cynthia 14 Guerrero, Rachel Hutchins, Daniel Sherman, Kelvin Smith, Sr., and Ken Stevenson. 1 In addition, the

15 Consolidated Complaint limited its claims and the scope of the putative class to Defendant's Western

16 Region. The Consolidated Complaint asserted claims on behalf of two classes, a class of hourly

17 employees and a class of salaried low-level managerial employees.

18

Throughout the first half of2004, the parties conducted discovery relating to class certification

19 issues. Plaintiffs took the depositions of approximately 43 30(b)(6) designees and managers.

20 Defendant deposed the eight class representatives in the consolidated action.

21

On September 11, 2004, Plaintiffs filed their motion for class certification. Plaintiffs supported

22 their motion with, inter alia, declarations of class representatives and putative class members, excerpts
23

24 of deposition testimony from FedEx Express managers, documents obtained from FedEx Express

25 during discovery, and three declarations from expert witnesses. Among other evidence, Plaintiffs

26 presented an expert analysis of Defendant's "Basic Skills Tests" (BST) passage of which was a

27 28 1 On March 19, 2004, plaintiff Daniel Sherman voluntarily dismissed his claims without prejudice.

2
.ASF NO. : l.01-7.n59 ST: c. 03-2878 SI

Case 3:03-cv-028!iJ8 Document Z2A Filed 01/(1)9/2007 Page 8 of 58

1 prerequisite to advancement to certain positions at FedEx Express. Plaintiffs' expert sought to show

2 that the BST was not job related and had disproportionately excluded African Americans and Latinos
3 from opportunities for advancement based on factors unrelated to their ability to perform. Defendant
4 vigorously opposed Plaintiffs' class certification motion. The parties filed numerous briefs and 5
supplemental briefs. 6
While the class certification motion was pending, Defendant separately sought summary 7 8 judgment as to six of the named plaintiffs,2 asserting that there was insufficient evidence in the record

9 to support their claims. These motions were litigated throughout the fall of2004 and winter of2005.

10 Plaintiffs moved to compel discovery, and sought relief from the motions pending further discovery

11 under Fed. R. Civ. P. 56(f).
12 On January 19, 2005, the Court heard argument on the motion for class certification, some of
13
14 the motions for summary judgment, and the rule 56(f) motion.

15

On March 21, 2005, the Court granted Plaintiffs' motion to compel and Rule 56(f) motion.

16

On September 28, 2005, the Court issued orders granting class certification and denying

17 Defendant's motions for Summary Judgment pending further discovery. In its class certification order,

18 the court certified two classes:

19

1. A "Minority Employee Class" consisting of all African-American and Latino Handlers,

20

Freight Handlers, Material Handlers, Checker-Sorters, Customer Service Agents, Couriers,

Swing Drivers, Ramp Transport Drivers, Ramp Area Drivers, Shuttle Drivers, Dangerous

21

Goods Agents, Information Agents, Operations Agents, Ramp Agents, Service Assurance

22

Agents, Truck Control Agents, Trace Representatives, Input Auditors, Team Leaders, and Dispatchers, working in defendant's Western Region3, who are or were employed during the

23

class period, who allege claims of employment discrimination in violation of Title VII of the

24 2 Defendant did not seek summary judgment as to the claims of Plaintiffs Derrick Satchell and Rachel
25 Hutchins.

26

3 As set forth in Footnote 6 of the court's class certification order, the Western Region is comprised of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, part of

27

Texas, Utah, Washington, and Wyoming. From 1999 to on or about November 2003, the Western Region was comprised of only six states: California, Hawaii, parts of Washington, Oregon, Alaska,

28 and Nevada.

3

Case 3:03-cv-028!iJ8 Document Z2A Filed 01/(1)9/2007 Page 9 of 58

1

Civil Rights Act of 1964 (both disparate impact and disparate treatment), 42 U.S.C. § 1981, and

for those class members working, or who worked, in California, the California Fair

2

Employment and Housing Act; and

3

2. An "African-American Lower-Level Manager Class" consisting of all African-American

4

Operations Managers working in defendant's Western Region during the class period who allege claims of employment discrimination in violation of Title VII of the Civil Rights Act of

5

1964 (both disparate impact and disparate treatment), 42 U.S.C. § 1981, and for those class

members working, or who worked, in California, the California Fair Employment and Housing

6

Act.

7 The court certified Plaintiffs' Title VII,§ 1981, and FEHA claims for class treatment, and set forth the

8 following liability periods for each claim for each certified class: for Plaintiffs' Title VII claims, a

9 class period beginning June 20, 2002 for the Minority Employee Class and a class period beginning

10 July 10, 2002 for the African-American Lower Manager Class; for Plaintiffs' FEHA claims, a class

11 period beginning June 13, 2001 for the Minority Employee Class and a class period beginning July 31,

12 2001 for the African-American Lower Manager Class; for Plaintiffs' claims under Section 1981, a

13 class period beginning Octoher 17, 1999 for both classes with respect to compensation claims; a class

14 period beginning October 17, 1999 for promotion claims by class members alleging denial of

15 promotion from one permanent hourly position to another permanent hourly position; a class period

16 beginning January 1, 2002 for promotion claims by class members alleging denial of promotion from

17 casual positions to permanent positions; and a class period beginning January 1, 2002 for promotion

18 claims by class members alleging denial of promotion from permanent hourly positions to permanent

19 salaried positions. In addition, the Court instructed Plaintiffs to amend the complaint to add a class

20 representative who had failed the BST.

21

On October 12, 2005, Plaintiffs filed their Second Consolidated Amended Complaint. In

22 compliance with the Court's class certification order, the Complaint added Tyrone Merritt, who had

23 failed the BST, as a class representative of those who had failed the BST.

24

On October 26, 2005, Defendant filed its Answer to the Complaint, denying all allegations of

25 discrimination and disparate impact.

26

Defendant sought to appeal the Court's class certification order to the Ninth Circuit Court of

27 Appeals pursuant to Fed. Rule Civ. P. 23(£), and, on October 14, 2005, sought a stay of the district

28

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Case 3:03-cv-028558 Document 321 Filed 03/tDS/2007 Page 10 of 58

1 court proceedings pending the outcome of that appeal. The Court denied the motion for a stay on 2 November 23, 2005. The Ninth Circuit Court of Appeals denied the Rule 23(f) petition on December

3 12,2005.

4

Throughout the end of 2005 and all of 2006 the parties conducted discovery concerning the

5 merits of Plaintiffs' individual and class claims. The discovery was broad, extensive, and thorough.

6 The discovery included requests for production of documents, interrogatories, contention

7 interrogatories, requests for admissions, disclosures pursuant to Rule 26, and extensive expert

8

discovery. 9

10

Discovery included the production of extensive documents from Plaintiffs and Defendant

11 including production of computerized personnel and payroll data from 1997 through 2006, relating to

12 Defendant's Western Region. In addition to the volumes of computer data, several hundreds of

13 thousands of pages of documents were produced.

14

Deposition discovery was extensive. Between them, the Parties took approximately 193

15 depositions, including the Class Representatives, class members, and FedEx Express managers.
16 Pursuant to Rule 30(b)(6), Class Counsel deposed Defendant through its designated representatives on
17
18 a variety of topics, including Defendant's (1) personnel policies, (2) evaluations, (3) training,

19 (4) computerized records, (5) retention of documents, (6) the BST, and (7) the reasons for employment

20 actions against specified class members.

21

In June, September, and December 2006, and January 2007, the parties served and filed expert

22 reports, rebuttal expert reports, and surrebuttal expert reports. Plaintiffs submitted expert reports from
23 Dr. Richard Drogin, a statistician; Dr. Nita French, an industrial organizational psychologist;
24 Dr. William Bielby, a sociologist; Dr. Anthony Greenwald, a social psychologist, Dr. Sheldon Zedeck,
25
26 an industrial organizational psychologist; and Dr. Marc Bendick, a labor economist. Defendant

27 submitted expert reports from Dr. Mary Baker, a labor economist and statistician, Dr. Michael

28 Campion, an industrial organizational psychologist; Dr. Philip Tetlock, a psychologist; Dr. Nancy

5
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Case 3:03-cv-0285J8 Document ~21 Filed 03/tDS/2007 Page 11 of 58

1 Tippins, an industrial and organizational psychologist, and Jan Duffy, a management practices

2 specialist. There was extensive expert discovery.

3

On September 19, 2006, the Court granted Plaintiffs' motion to amend the class certification

4 order with respect to the scope of the promotion claims. On November 30, 2006, Plaintiffs filed a

5

Statement Regarding Promotions Claims to be litigated. 6

7

On November 14, 2006, the Court granted Plaintiffs' motion for leave to file a Third

8 Consolidated Amended Complaint. This Complaint eliminated the Class FEHA claim and broke the

9 Title VII cause of action into separate claims for disparate impact and disparate treatment.

10

In the winter of 2006, the parties exchanged lists of trial exhibits. The parties also exchanged

11 proposed jury verdict forms. In December 2006 and January 2007, the parties briefed numerous
12 motions in limine.
13 The Plaintiffs have vigorously prosecuted this case, and Defendant has vigorously contested it.
14
15 All pretrial discovery was completed, numerous pre-trial motions were ruled upon, and the parties

16 were prepared for trial. As a result, the parties were able to assess reliably the relative merits of the

17 claims of the Plaintiffs and the certified Classes, and of Defendant's defenses.

18

At the instruction of the Court, the parties participated in negotiations with the assistance of an

19 experienced mediator: Hunter Hughes of Atlanta, Georgia. The parties had face-to-face sessions in
20 April2006, December 2006, February 2007, and March 2007. Under the supervision ofthe mediator,
21
22 these negotiations have been conducted at arms length and without collusion. These efforts resulted in
23 an agreement to settle this action. The terms of the parties' agreement are contained in this Consent

24 Decree.

25

The parties agree that the formal and informal discovery conducted in this action - the

26 depositions taken by both sides, the documents produced, the expert witness reports, and the
27 information exchanged during mediation- are sufficient to assess reliably the merits of the respective
28

6
ASP Nn · rO<-?Il'iQ ST· r 01-2R7R ST

Case 3:03-cv-0265S8 Document Z21 Filed 03/tDS/2007 Page 12 of 58

1 parties' positions and to compromise the issues on a fair and equitable basis. As reflected by the

2 signatures of counsel at the end of this document, the parties have consented to the entry of this

3 Decree.

4

III. PURPOSES OF THE CONSENT DECREE

5 The parties have entered into the Consent Decree for the following purposes:

6

A. To resolve all disputes covered by this Consent Decree in such a way as to avoid further

7 expensive and protracted litigation;
8 B. To use Best Efforts to achieve equal employment opportunity for African Americans

9 and Latinos working within the DGO and AGFS Divisions ofFedEx Express' Western Region;

10 C. To use Best Efforts within the DGO and AGFS Divisions ofFedEx Express' Western

11 Region to compensate, discipline, evaluate, and promote African Americans and Latinos on a non-
12 discriminatory basis;
13 D. To create an expedited procedure for distributing a monetary settlement to eligible

14 members of the Settlement Class and for implementing equitable relief pursuant to the terms of this

15

Decree; and

16

E. To provide finality to the resolution of all class claims and defenses asserted in this

17 action.
18

IV. DEFINITIONS

19 A. "Adverse Impact" shall be defined in a manner consistent with Title VII law.
20 B. "African American" means all persons having origins in any of the black racial groups
21

of Africa.
22
C. "Approval Date" means the date upon which the Court signs this Decree after having 23
determined that it is fair, adequate and reasonable, not to be earlier than One Hundred days following 24

the Preliminary Approval. 25
D. "Best Efforts" means all reasonable steps necessary to comply with the specific 26

objective to which the Best Efforts are directed.
27 E. "Civil Action" means Satchell v. FedEx Express, Case Nos. C03-2659 SI and Caldwell
28

7 NO.: C03-2659 SL c 03-2878 SI

Case 3:03-cv-026558 Document 321 Filed 01/(])9/2007 Page 13 of 58

1 v. FedEx Express C03-2878 SI, N. D. Cal.

2

F. "Claims Administrator" means Settlement Services, Inc. ofTallahassee, Florida.

3

G. "Class" is used interchangeably with Settlement Class and has the same meaning.

4 "Settlement Class" is defined in Section VII of this Consent Decree.

5

H. "Class Counsel" means Altshuler Berzon LLP; Lieff, Cabraser, Heimann & Bernstein,

6 LLP; Law Offices of John L. Burris; Law Offices of Kay McKenzie Parker; Law Offices ofWaukeen

7 McCoy; Law Offices of MichaelS. Davis; Schneider and Wallace; and Barry Goldstein, of counsel to

8 Goldstein, Demchak, Baller, Borgen & Dardarian.

9

I.

"Class Member Hourly Position" means any of the following jobs: Handlers, Freight

10 Handlers, Material Handlers, Checker-Sorters, Customer Service Agents, Couriers, Swing Drivers,

11 Ramp Transport Drivers, Ramp Area Drivers, Shuttle Drivers, Dangerous Goods Agents, Information

12 Agents, Operations Agents, Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace

13 Representatives, Import Auditors, Team Leaders, and Dispatchers in the Western Region.

14

J. "Class Representatives" or "Plaintiffs" means Derrick Satchell, Kalini Boykin, Valerie

15 Brown, Rick Gonzales, Cynthia Guerrero, Rachel Hutchins, Tyrone Merritt, Kelvin Smith, Sr., and

16 Ken Stevenson.

17

K. "COMATS" are the AGFS and DGO locations that comprise the Western Region for

18 purposes of this Decree. A list of Western Region COMATS is attached as Appendix A. Those in

.19 Arizona, Colorado, Idaho, Montana, New Mexico, Texas, Utah, and Wyoming became part of the

20 Western Region on or about October 12,2003.

21

L. "Courier" includes Courier/DOT; Courier/Handler; Courier/Handler/Non-DOT;

22 Courier/Non-Driver; Courier Feeder Agent DOT; Courier/Swing Driver/CDL; Courier/Non-DOT;

23 Courier Feeder Agent Non-DOT; Courier/Handler DOT/CDL; Courier/DOT/CDL; Courier Feeder

24 DOT/CDL; Courier/Ramp Agent/Non-DOT; Courier/Ramp Agent/CDL; and Courier/Ramp

25 Agent/DOT.

26

M. "Court" means the United States District Court for the Northern District of California,

27 San Francisco Division.

28

N. "Decree Year" means the one-year period from the Approval Date or the anniversary of

8
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Case 3:03-cv-0285J8 Document Z21 Filed 01/tDS/2007 Page 14 of 58

1 the Approval Date until the next anniversary of the Approval Date. For example, "Decree Year One"

2 would be the one-year period from the Approval Date until the first anniversary of the Approval Date.

3

0. "Fairness Hearing" shall be the hearing at which the Court decides whether or not to

4 grant final approval to the Consent Decree.

5

P.

"FedEx Express" or "Company" means Federal Express Corporation.

6

Q. "Final Approval" means the signing of this Decree on the Approval Date by the Court,

7 and, if any objection to this Consent Decree is timely filed by any member of the Settlement Class, (1)

8 the expiration ofthe time for filing of a direct appeal from the Court's approval ofthe Decree without

9 the filing of a notice of appeal, or (2) if a timely direct appeal is filed, the final resolution of that appeal

10 (including any requests for rehearing and/or petitions for writ of certiorari), resulting in the final

11 judicial approval ofthe Consent Decree.

12

R. "Handler" inCludes Handler/DOT; Handler/non-DOT; and Handler DOT/CDL.

13

s.

"Latino" means all persons of Mexican, Puerto Rican, Cuban, Central American, South

14 American or other Spanish culture or origin, regardless of race.

15

T. "Management Rationale," in the context of a Guaranteed Fair Treatment proceeding,

16 means the documentation submitted by management to the relevant GFTP decision-mak:er(s), which

17 sets forth the facts, circumstances, policies and other relevant information upon which management

18 based the challenged employment decision.

19

u. "Manager" includes Manager BSC, Manager Dispatch, Manager Remote Ops/CDL,

20 Manager Dispatch/A, Manager Hub Operations, Manager Ramp Operations/Prm/AGFS/CDL,

21 Manager Hub International Outbound Operations, Manager Station Operations/Prm!DOT/CDL,

22 Manager Ram Operations/AGFS Prm/CDL, Manager Regional Sort Operations/Prem, Manager Station

23 Operations/CDL, Manager Ramp Operations/COL, Manager Dispatch Prem Loc, Manager Station

24 Operations/Non-DOT/Prem, Manager Station Operations/Non-DOT, Manager Ramp Operations/Non-

25 DOT, Manager Ramp Operations/Premium/CDL, Manager BSC/Premium Loc, Manager Station/Ramp

26 Operations/CDL, Manager Dispatch/AGT&T, Manager Hub Operations/non-DOT, Manager Station

27 Operations/CDLNol, Manager Station Operations/Non-DOTNol, Manager Retail Operations,

28 Manager Sort/Support Operations, Manager Station Operations/COL.

9
F NO · r01-2n'i9 Sl: C 03-2878 SI

Case 3:03-cv-0265S8 Document Z21 Filed 03/tDS/2007 Page 15 of 58

1

v. "Minority" means all African Americans and Latinos.

2

w. "Monitoring Counsel" means John Burris, James Finberg, Barry Goldstein, and Guy

3 Wallace. That group of lawyers will have sole and exclusive authority to act on behalf of the Class on

4 matters of compliance or non-compliance with this Decree.

5

X. "Monitoring Panel" means the group described in Section XVII of the Decree.

6

Y. "OLCC" means any On Line Compliment/Counseling electronically recorded in FedEx

7 Express's PRISM database.

8

Z. "Party" or "Parties" means the named Class Representatives and Federal Express

9 Corporation, d/b/a FedEx Express.

10

AA. "Preliminary Approval Date" means the date upon which the Court enters an Order

11 preliminarily approving this Decree, directing notice and an opportunity for persons falling within the

12 definition of the Settlement Class to opt out of the Settlement Class or submit an objection to the

13 Decree, and setting a fairness hearing.

14

BB. "Release" means the Release of claims set forth in Section VIII of the Decree.

15

CC. "Scheduled Reports" means the progress reports described in Section XVIII.D on the

16 schedule set forth in Section XVIII.C.

17

DD. "Service Agent" includes Service Agent/DOT; Service Agent/Non-DOT; Senior

18 Service Agent/DOT; Senior Service Agent/non-DOT; Service Agent/Non-DOT/non-IPP; and Senior

19 Service Agent/Non-DOT/non-IPP.

20

EE. "Settlement Class" is defined in Section VII of the Decree.

21

FF. "Term of the Decree" means the period described in Section VI of the Decree.

22

GG. "Uniform Guidelines" means uniform guidelines for employee selection procedures, 29

23 CFR Section 1607. 24

v.

JURISDICTION

25

The Court has jurisdiction over the parties and subject matter of this Civil Action. The Third

26 Amended Complaint in this action asserts claims that, if proved, would authorize the Court to grant the

27 equitable and monetary relief set forth in this Decree. Venue is proper in this Court. The Court shall

28

10
CREE- CASE NO.: C03-2659 SI; C 03-2878 SI

Case 3:03-cv-026558 Document 321 Filed 01/(])9/2007 Page 16 of 58

1 retain jurisdiction of this Civil Action during the Term of the Decree for the purpose of entering all

2 orders authorized by the Decree, which may be necessary to implement the relief provided in the

3 Decree or to enforce the provisions of the Decree.

4

VI. TERM OF DECREE

5

A. Unless provided otherwise, the equitable provisions in this Decree are effective

6 immediately upon the Approval Date, provided, however, that in the event that this Decree ultimately

7 does not receive Final Approval, then any prior contempt finding which may have been entered shall

8 be vacated by the Court.

9

B. Except as otherwise provided herein, the provisions of this Decree and the agreements

10 contained herein shall remain in effect for a period of four years from the Approval Date.

11

VII. SETTLEMENT CLASSES AND INJUNCTIVE RELIEF CLASSES

12

A. For purposes of the monetary relief provided in this Decree, the Settlement Class is

13 certified under Federal Rule of Civil Procedure 23(b)(3) and consists of:

14

1. A Minority Employee Settlement Class of all Minority employees of the AGFS

15 or DGO Divisions ofFedEx Express who are or were employed in the position of Handlers, Freight

16 Handlers, Material Handlers, Checker-Sorters, Customer Service Agents, Couriers, Swing Drivers,

17 Ramp Transport Drivers, Ramp Area Drivers, Shuttle Drivers, Dangerous Goods Agents, Information

18 Agents, Operations Agents, Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace

19 Representatives, Import Auditor, Team Leaders, and Dispatchers in the COMATs that comprised the

20 Western Region at any time between October 17, 1999, and the Preliminary Approval Date, who do

21 not timely opt out.

22

2. An African-American Operations Manager Settlement Class of all African

23 American employees of the AGFS or DGO Divisions ofFedEx Express who are or were employed in

24 the position of Operations Managers in the COMATs that comprised the Western Region at any time

25 between October 17, 1999, and the Preliminary Approval Date, who do not timely opt out.

26

B. For purposes of the injunctive and declaratory relief provided in this Decree, the

27 following classes are certified under Federal Rule of Civil Procedure 23(b)(2):

28

11
[PROPOSED] CONSENT DECREE- CASE NO.: C03-2659 SI; C 03-2878 SI

Case 3:03-cv-028558 Document 221 Filed 03/tDS/2007 Page 17 of 58

1

1. A Minority Employee Class of all Minority employees ofthe AGFS or DGO

2 Divisions ofFedEx Express who are or were employed in the position of Handlers, Freight Handlers,

3 Material Handlers, Checker-Sorters, Customer Service Agents, Couriers, Swing Drivers, Ramp

4 Transport Drivers, Ramp Area Drivers, Shuttle Drivers, Dangerous Goods Agents, Information

5 Agents, Operations Agents, Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace

6 Representatives, Import Auditors, Team Leaders, and Dispatchers in the COMATs that comprise the

7 Western Region at any time between October 17, 1999, and the end of the Decree.

8

2. An African-American Operations Manager Class of all African American

9 employees of the AGFS and DGO Divisions ofFedEx Express who are or were employed in the

10 position of Operations Managers in the COMATs that comprise the Western Region at any time

11 between October 17, 1999, and the end ofthe Decree.

12

C. Settlement Class Members who have filed a timely request to opt out of the monetary

13 relief provisions shall not be held to release any claims for individual relief.

14

D. In the event that Final Approval is not obtained, nothing in this Decree shall be deemed

15 to waive FedEx Express's objections and defenses to class certification, liability, or entitlement to

16 monetary or equitable relief, or any other issue in the Civil Action and this Decree shall then be

17 deemed null and void and not admissible in any court regarding the propriety of class certification,

18 liability, or entitlement to monetary or equitable relief, or any other issue in the Civil Action.

19

VIII. RELEASE OF CLAIMS

20 A. Release of Claims by Settlement Class.

21

Upon Final Approval of the Consent Decree, all Settlement Class Members who do not timely

22 opt out will release all race and national origin discrimination claims against FedEx Express under

23 federal and state laws that were certified by the Court on September 27, 2005, for the liability period of

24

October 17, 1999 through the Preliminary Approval Date. 25

26

The Court certified on September 27, 2005, claims ofthe Minority Employee Settlement Class

27 concerning race or national origin discrimination in promotions, compensation, and discipline. The

28 Minority Employee Settlement Class will release claims, arising during the Class Period, under any

12
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Case 3:03-cv-0265S8 Document Z21 Filed 03/tDS/2007 Page 18 of 58

1 federal or state legal theory, for race and national origin discrimination in compensation, promotions
2 identified in plaintiffs' statement regarding promotion claims filed on November 30, 2006, i.e., (1)
3 promotions in the Western Region of the AGFS and DGO Divisions from any casual Class Member 4 Hourly Position to any permanent hourly position, (2) promotions from any permanent Class Member 5
Hourly Position to any other permanent hourly position, (3) promotions of Latinos from a Class 6 7 Member Hourly Position to operations manager positions, (4) promotion from Class Member Hourly 8 Positions to customer representative positions from the beginning of the class period until June 1,
9 2006, and in the allegedly discriminatory issuance of performance reminders or warning letters, to the

10 extent that the issuance of such discipline had an impact on an active employee's compensation or

11 ability to promote.

12

The Court certified on September 27, 2005, claims of the African-American Operations

13 Manager Settlement Class of race and national origin discrimination claims concerning compensation
14

15 and discipline. The African-American Operations Manager Settlement Class will release claims,

16 arising during the Class Period, under any federal or state legal theory, for race and national origin

17 discrimination in compensation and the allegedly discriminatory isSUa.J?.Ce of performance reminders or

18 warning letters to the extent that the issuance of such discipline had an impact on an active employee's

19 compensation or ability to promote.

20 B.

Individual Claims of Class Representatives.

21

This Decree does not release the non-class claims asserted by the Class Representatives
22

individually, as set forth in the Third Amended Complaint, paragraphs 77-81, 88-90, 98-1 00, 109-111,

23

117-119,130-134,141-143,154-162,181-185,203-218,226-253,254-257. 24

C. No Bar to Future Claims.

25

Nothing in the Decree shall be construed to bar any claims of members of the Settlement Class 26

or Plaintiffs that arise from conduct occurring after the Preliminary Approval Date. 27

28

13

Case 3:03-cv-0265J8 Document 321 Filed 03/tDS/2007 Page 19 of 58

1

IX. MISCELLANEOUS PROVISIONS

2 A. No Admission of Liability.

3

This Consent Decree does not constitute and shall not be deemed to be a finding or

4 determination by the Court, nor an admission by any party, regarding the merits, validity or accuracy 5 of any of the allegations, claims or defenses. This Decree represents the compromise of disputed 6 claims that the parties recognize would require protracted and costly litigation to determine. FedEx 7 Express denies that it has engaged in any policy or pattern or practice of unlawful discrimination, or 8 that it has engaged in any other unlawful conduct as alleged in the Civil Action, and FedEx Express's 9 entry into this Decree is not and may not be used by any person in any proceeding as an admission or

10 evidence that FedEx Express and/or its employees, managers, and/or attorneys have on any occasion

11 engaged in discriminatory employment practices or any other unlawful conduct, such being expressly 12 denied. FedEx Express has voluntarily entered into this Decree because it believes the actions it has

13 agreed to undertake demonstrate its strong commitment to diversity and equal employment

14 opportunity. Neither the Decree nor any compliance reports, filings, data, or other compliance

15 information arising out of or related to the Decree shall be discoverable, or admissible in any

16 proceeding other than one relating to the enforcement of this Decree.
17 B. No Employment Contract.

18

Nothing in this Consent Decree creates contractual employment rights or otherwise modifies

19 the "at will" nature of the employment of employees of FedEx Express.

20 c. Modification and Severability of the Consent Decree.

21

1. Whenever possible, each provision and term of this Decree shall be interpreted in such a

22 manner as to be valid and enforceable; provided, however, that in the event that after Firial Approval

23 hereof any provision or term of this Decree should be determined to be or rendered unenforceable on

24 collateral review, all other provisions and terms of this Decree and the application thereof to all

25 persons and circumstances subject thereto shall remain unaffected to the extent permitted by law. If

26 any application of any provisions or term of this Decree to any specific person or circumstance should

27

28

14
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Case 3:03-cv-0285J8 Document Z21 Filed 01/tDS/2007 Page 20 of 58

1 be determined to be invalid or unenforceable, the application of such provision or term to other persons

2 or circumstances shall remain unaffected to the extent permitted by law.

3

2. Monitoring Counsel and FedEx Express may jointly agree to modify the Decree in writing

4 signed by both Monitoring Counsel and FedEx Express.

5

3. In the event that changed or other circumstances make a modification of the Decree

6 necessary to ensure its purposes are fully effectuated, but good faith negotiations seeking such

7 modifications are unsuccessful, any party to the Decree shall have the right to move the Court to

8 modify this Decree. Such motion shall be granted only upon the movant proving to the Court by clear

9 and convincing evidence that changed or other circumstances make such modification necessary. In

10 determining the specific modification to order, the Court shall consider whether there is an equally

11 effective modification that would not materially increase the burden of compliance and/or cost to

12 FedEx Express of compliance (out-of-pocket or otherwise). Any such modification to this Decree by

13 the Court shall be ordered in such a fashion as will limit the burden of compliance and/or the cost to

14 FedEx Express (out-of-pocket or otherwise) to the extent possible consistent with effectuating the 15 purposes of this Decree. The procedures for negotiations to modify this Decree (and, if necessary, for

16 resolution of disputes) shall be the same as those set forth in Section XIX regarding Decree

17 enforcement.

18 D. Duty To Support and Defend the Decree.

19

Class Representatives, Class Counsel and FedEx Express each agree to abide by all ofthe terms

20 of this Decree in good faith and to support it fully, and shall use Best Efforts to defend this Decree

21 from any legal challenge, whether by appeal or collateral attack.

22 E. Execution In Counterparts.

23

The parties agree that the Decree may be executed in counterparts, each of which shall be

24 deemed to be an original and all of which together shall be deemed to be part of the same Decree.

25

X.

GENERAL EQUITABLE PROVISIONS

26

1. Subject to the provisions of Paragraphs 2 and 3 hereof:

27

28

15

Case 3:03-cv-0285J8 Document ~21 Filed 03/tDS/2007 Page 21 of 58

1

a. FedEx Express shall maintain and enforce its non-discrimination and anti-retaliation

2 policies designed to assure equal employment opportunity.

3

b. In accordance with its non-discrimination policies and its obligations under the law,

4 FedEx Express shall not knowingly maintain or enact any policy or practice that has the purpose or

5 effect of unlawfully discriminating against any member of the Minority Hourly Employee Class on the

6 basis of race (African-American) or national origin (Latino), or any member of the African-American

7 Operations Manager Class on the basis of race (African-American).

8

c. In accordance with its anti-retaliation policies and its obligations under the law,

9 FedEx Express shall not retaliate against any member of the Minority Hourly Employee Class or any

10 member of the African-American Operations Manager Class because he or she opposed discrimination

11 on the basis of race or national origin, testified, furnished information or participated in any 12 investigation, proceeding, or hearing in connection with this lawsuit or any charge or complaint of

13 discrimination on which this lawsuit is based; testified, furnished information or participated in 14 connection with the monitoring or implementation ofthis Decree; or sought and/or received monetary

15 and/or non-monetary relief pursuant to this Decree.

16

d. In accordance with its non-discrimination policies and its obligations under the law,

17 FedEx Express shall make available to African-American and Latino employees and African-

18 American Operations Managers the same opportunities and terms and conditions of employment as

19 FedEx Express affords similarly situated white employees and Operations Managers.

20

2. FedEx Express employees complaining of alleged unfair or unlawful treatment may use

21 FedEx Express's internal complaint procedure or may file charges with the EEOC, or the state or local

22 fair employment practices ("FEP") agency. However, the parties mutually intend that the enforcement

23 provisions of this Decree shall not be used as an alternative method for class members or any other

24 FedEx Express employee to litigate entitlement to individual relief for claims of alleged race or

25 national origin discrimination or retaliation. Individual complaints of such alleged violations, as 26 distinguished from pattern or practice allegations, shall not be considered to raise an issue of

27 compliance or non-compliance with this Decree.

28

16
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1

3. Monitoring Counsel will have sole and exclusive authority to act for the Class on issues of

2 compliance or non-compliance with this Decree.

,.

3

4. As of the Approval Date, and pursuant to the Court's authority under the All Writs Act and

4 the Anti-Injunction Act, and Fed.R.Civ.P. 23, each and every Class Representative and each and every

5 Settlement Class member who does not file a timely request to opt out shall be permanently enjoined

6 from bringing claims released as part of the Class Settlement.

7

XI. SELECTION PRACTICES

8 A. Elimination of the Basic Skills Test.

9

1. Within three months of the Approval Date, FedEx Express will discontinue use of the Basic

10 Skills Test ("BST") as a requirement for awarding Courier, Ramp Transport Driver, or Service Agent

11 positions, without requiring passage of an alternative cognitive ability test as a condition precedent to

12 being offered one of these positions during the period of the Decree.

13

2. IfFedEx Express chooses to implement a new selection device or test for the positions of

14 Courier, Ramp Transport Driver, or Service Agent, it will monitor whether such selection device or

15 test has adverse impact with respect to African-Americans or Latinos. FedEx Express will report the

16 results of those adverse impact analyses to Monitoring Counsel and the Special Master. If there is

17 adverse impact, FedEx Express will, after consultation with Monitoring Counsel and the Special

18 Master, take appropriate steps, in accordance with the Uniform Guidelines on Employee Selection

19 Procedures.
20 B. Casual Employees.

21

FedEx Express has revised its Categories of Employment policy to eliminate the casual

22 category. FedEx Express will create a new category of employment for "retiree casuals" which will be

23 limited to employees who have retired from FedEx Express but wish to maintain some limited working

24 relationship with the Company. By the approval date, FedEx Express will offer existing casual

25 employees upgrades to permanent status based on location availability and most recent hire date.

26 Casual employees who are not upgraded will be advised of the opportunity to apply for available

27 permanent positions through www.fedex.com.

28

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Case 3:03-cv-0285J8 Document Z21 Filed 01/tDS/2007 Page 23 of 58

1 c. Posting of and Applying for Hourly Positions.

2

1. FedEx Express will make a computer or terminal reasonably available for employees to

3 review posted Career Opportunities. (If the workplace is not of sufficient size to have a computer or

4 terminal in its break room, then FedEx Express will establish reasonable procedures by which affected

5 employees will be advised of the times and places that computers or terminals will be reasonably

6 available for reviewing Career Opportunities.)

7

2. FedEx Express will continue to provide employees access to the Job Change Application

8 Tracking System by logging in with their IMS password.

9

3. FedEx Express will continue to post all replacements, additions, and new permanent

10 positions in the Career Opportunities Postings unless a posting exception is approved as set forth in

11 Policy 4-15 of the FedEx People Manual attached to this Decree as Appendix B. Within one month of

12 the Approval Date, Local Department/Station postings will also be included in the Career

13 Opportunities postings with a post note indicating that actual location experience is a minimum

14 requirement for the position.

15

4. Within one month of the Approval Date, FedEx Express will replace references to manager

16 "recommendation" with references to manager "verification" in its Career Opportunities policy to

17 more accurately reflect the role of managers in the internal application process.

18

5. Within one month of the Approval Date, FedEx Express will update and distribute the

19 employee and manager job aids related to Career Opportunities.

20

6. Subject to very limited authorized exceptions, hourly positions posted in Career

21 Opportunities are to be filled only through the JCAT system. Hourly positions posted in Career

22 Opportunities may be filled with an internal candidate through the processing of a paper Prism

23 Authorization Form ["PAF"] only under the following circumstances, which must be documented on

24 the PAF and confirmed by the matrix Human Resources Manager: compliance with legal requirements

25 governing return from military, medical, or family leave; compliance with FedEx Express policy

26 regarding personal leave; reinstatement; voluntary demotion of a manager; accommodation of an

27 employee's disability; involuntary demotion of an hourly employee; other unique circumstances which

28

18
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1 must be documented and approved by the Human Resources Manager. The Monitoring Panel 2 described in Section XVII herein will develop and review reports to help ensure the foregoing. The 3 monitoring reports will be provided to Monitoring Counsel and the Special Master in accordance with

4 the schedule set forth in Section XVIII.C.

5 D. Promotion to Management.

6

1. The FedEx Express intranet (which will be reasonably accessible to employees, see supra)

7 will contain information about the ASPIRE (Assessment of Skills, Performance and Interests Required

8 for Entry into Management) process for each Division.

9

2. FedEx Express will, within three months of the Approval Date, also develop and distribute

10 offline materials that outline the ASPIRE (Assessment of Skills, Performance and Interests Required

11 for Entry into Management) process for each Division.

12

3. FedEx Express will allow enrollment in the available ASPIRE to Management classes upon

13 verification by the employee's manager that the employee meets the objective eligibility requirements,

14 i.e., the employee has no active warning letter, has a satisfactory rating in all performance review

15 categories and a satisfactory overall performance review score, has two years of college credit or

16 equivalent work experience and has four (4) years of work experience in addition to the experience, if

17 any, used for college credit equivalent.
18 E. Role of Managers in the Promotion Process for Hourly Positions

19

1. For JCATS positions, the manager will not approve, but only "verify" whether an employee

20 has met the minimum objective requirements, i.e., a performance review score of 5 or above, time in

21 station/department, no active warning letter, no performance reminder letters concerning performance

22 areas that are the same as the requirement for the new position. FedEx Express will reprogram JCATS

23 within one month of the Approval Date to reflect this change.

24

2. Within one month of the Approval Date, FedEx Express will reprogram JCATS so that if a

25 manager fails to take the action required to timely verify that an employee meets the minimum

26 objective requirements, the employee's name will be included on the list of eligible applicants for

27

28

19
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Case 3:03-cv-0285J8 Document Z21 Filed 01/tDS/2007 Page 25 of 58

1 consideration by the hiring manager. The hiring manager will verify the employee's eligibility before

2 the employee may be offered the position.

3 F. Adherence to Rules regarding Priority Group and CEV Score

4

FedEx Express will revise its Candidate Selection and Internal Applicant Processing policies to

5 subject managers to discipline up to and including termination when they fail to fill positions

6 according to Company policy, including selection policies relating to priority groups and CEV scores.

7

XII. PERFORMANCE EVALUATIONS

8

1. Within one month of the Approval Date, FedEx Express will expand the character capacity

9 for Online Performance Review ["OLPR"] categories to accommodate additional anchor statements,

10 descriptions, and guidelines to assist managers in evaluating employee performance, particularly with

11 respect to the subjective categories.

12

2. FedEx Express will continue to provide rating scales which managers will be required to

13 use in setting scores for objective OLPR categories.

14

3. Within one month of the Approval Date, FedEx Express will develop and communicate to

15 managers clear guidelines setting forth when an exception to the rating scale can be given. Exception

16 scores will be appropriate for:

17

a. active warning or reminder letters;

18

b. compliance with FMLA, military leave laws, state workers comp laws, or other

19 federal, state or local laws;

20

c. adding bonus points for perfect attendance and/or perfect punctuality;

21

d. consideration of documented events such as severe weather conditions or traffic

22 situation that impacted a significant number of employees on the same date in the same location;

23

e. consideration of documented staffing shortages that impacted categories such as

24 Quality (i.e., service levels) or Efficiency (i.e., actual hours versus plan hours);

25

f. consideration of other documented circumstances that justify exceptions in

26 compliance with policy and after consultation with Human Resources and the location Senior

27 Manager.
28

20
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1

4. FedEx Express will maintain and enforce its written requirements that all exception scores

2 are approved by the location Senior Manager and that the reason for all exception scores is

3 documented in the comments section of the performance review.

4

5. Within one month of the Approval Date, FedEx Express will add a performance review

5 item to its location audit process to audit a sample of performance reviews for hourly employees to

6 ensure that the guidelines and rating scales for the objective scores are followed and any exception

7 ratings are fully-documented and approved as required by policy.

8

6. Within six months of the Approval Date, FedEx Express will develop an interactive

9 mandatory training module to assist managers in conducting performance reviews in an accurate and

10 consistent manner that will include a focus on the items set forth in this section.

11

7. Within three months of the Approval Date, FedEx Express will establish a procedure by

12 which it will monitor whether the subjective components of its Courier and Handler performance

13 evaluations (that is, all categories other than attendance, punctuality, worker safety for Handlers and

14 Couriers; and vehicle safety, scan compliance, service level, and route efficiency for Couriers) for

15 Handler and Courier produce more than 2 negative standard deviations of disparity between African-

16 American or Latino and white employees in the same job code, organization code, COMAT, time-in-

17 position, and length ofFedEx Express service. FedEx Express will conduct regression analyses for

18 Handlers and Couriers in the Western Region of the AGFS and DGO Divisions, aggregating data by

19 (1) Handlers in AGFS; (2) Couriers in AGFS; (3) Handlers in DGO; and (4) Couriers in DGO. Within

20 three months of the Approval Date, FedEx Express will establish a procedure by which it will monitor

21 whether the subjective components of its performance evaluations for Operations Manager produce

22 more than 2 negative standard deviations of disparity between African-:American and white employees

23 in the same job code, organization code, COMAT, time-in-position, time-in-management and length of

24 FedEx Express service. FedEx Express will conduct a regression analysis, aggregating all data from

25 (1) the Western Region of the AGFS Division, and (2) the Western Region of the DGO Division.

26 FedEx Express will report the results of those impact analyses to Monitoring Counsel and the Special

27 Master; and if for any year during the term of the Decree, there is adverse impact as to either African-

28 Americans or Latinos, FedEx Express shall validate in accordance with the Uniform Guidelines the

21
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Case 3:03-cv-0265J8 Document 221 Filed 03/tDS/2007 Page 27 of 58

1 subjective portions of the performance evaluation and associated processes used for the positions for

2 which a statistically significant disparity was found.

3

XIII. MANAGER EVALUATION ON EEO

4

FedEx Express will maintain the categories on the Manager performance review that measure

5 the manager's performance in Employee Selection, Development, Affirmative Action (with anchors

6 including considering affirmative action plan when making selection/promotion decisions; fully

7 supporting the ASPIRE process; identifying training, job assignments, and special programs to develop

8 employees for promotional opportunities, with special emphasis on development of minorities and

9 females; and treating each subordinate individually); Leadership (with anchors including

10 demonstrating a belief in the value of each individual regardless of their background, race, sex, ethnic

11 group, education level, or position); and Judgment and Decision-Making (with anchors including

12 applying FedEx Express policy regarding promotion, compensation, and discipline in a consistent

13 fashion). 14

XIV. DISCIPLINE

15 A. Discipline Policies and Procedures.

16

1. FedEx Express has revised its Acceptable Conduct and Performance Improvement Policies

17 to provide for greater consistency in the use of disciplinary tools such as warning letters and

18 performance reminders as follows:

19

a. Added language that clarifies that an OLCC is not considered discipline but can be

20 considered when determining whether discipline is required and when identifying patterns of conduct

21 or performance issues that may warrant discipline; and

22

b. Merged the separate categories of "documented verbal counselings" and

23 "documented written counselings" into the single category of"documented counselings," and require 24 that all counselings be "documented" as an OLCC, regardless of whether a separate memo or written

25 synopsis of the counseling is given to the employee.

26

2. By the Approval Date, FedEx Express will revise, and thereafter continue to maintain and

27 enforce, Policy 2-5 (attached as Appendix C, and incorporated herein by reference), to reflect that

28

22

Case 3:03-cv-0265SB Document Z21 Filed 01/tDS/2007 Page 28 of 58

1 management "must," completely document all actions taken related to discipline for misconduct, 2 including notifying the employee of the date of the infraction, the facts supporting the discipline, the 3 policy violated, and a reference to the employee's privilege to pursue internal review of the decision

4 through the Guaranteed Fair Treatment Procedure.

5

3. By the Approval Date, FedEx Express will revise, and thereafter continue to maintain and

6 enforce Policy 2-50, (attached as Appendix D, and incorporated herein by reference),to reflect that

7 management "must" review thoroughly the circumstances surrounding any incident to determine

8 whether a reminder is warranted, and that performance reminders must include the date(s) of the 9 performance problem; the policy violated; the facts supporting the performance problem; the action 10 plan jointly-developed and documented by the employee and manager to correct the employee's 11 performance problem(s); an established follow-up date; and a reference to the employee's right to

12 pursue internal review ofthe decision through the Guaranteed Fair Treatment Procedure.

13

4. Within six months of the Approval Date, FedEx Express will develop an interactive

14 mandatory training module to assist managers with understanding and applying the Acceptable

15 Conduct and Performance Improvement policies for greater consistency and neutrality. The training

16 module will include information to assist with identifying and thoroughly investigating performance

17 and conduct problems.

18

XV. COMPLAINT PROCEDURES/RELATED ISSUES

19

1. FedEx Express shall maintain and enforce Policy 5-5 Guaranteed Fair Treatment

20 Procedure/EEO Complaint Process (attached as Appendix E, and incorporated by reference), as revised

21 pursuant to Section XVI herein.

22

2. Within one month of the Approval Date, FedEx Express shall prepare a complaint tracking

23 spreadsheet recording pertinent information regarding complaints in the Western Region of alleged

24 discrimination on the basis of race (African American) or national origin (Latino) or retaliation against

25 Class Members. Pertinent information shall include the following:

26

1.

a designation regarding whether the complaint was one of race or

27

national origin discrimination in the Western Region, or both;

28

23
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1

11. the name, job classification, and work location ofthe complainant(s);

2

and

3

111. the results of the investigation undertaken in response to such complaint,

4

including the corrective action imposed, if any, and the name of the

5

manager(s) or other employee(s) disciplined.

6

3. FedEx Express shall provide the complaint tracking spreadsheets on a semi-annual basis for

7 the term hereof to the Monitoring Panel established pursuant to Section XVII and to Monitoring

8 Counsel.

9

4. During the course of the Decree, FedEx Express shall, on a semi-annual basis, provide the

10 Monitoring Panel and Monitoring Counsel with three (3) employee complaints (as selected by the 11 Monitoring Panel from the complaint tracking spreadsheet), along with all related non-privileged

12 investigative files, and non-privileged written reports summarizing the investigation and remedial

13 actions taken or proposed by FedEx Express relative to each such complaint, for the purpose of

14 reviewing the propriety and justness of the resolution of such complaints.

15

5. The Monitoring Panel will review FedEx Express' investigation of each such complaint

16 and, where appropriate, may make recommendations to FedEx Express regarding the investigation and

17 resolution of complaints. The Monitoring Panel may recommend the Company take additional 18 investigative steps including, without limitation, re-interview of the complaining party and other 19 persons of interest with respect to any complaint. In addition, if such additional investigative steps do 20 not fully resolve any concerns the Monitoring Panel may have regarding the matter, they may take any

21 other investigative actions as they may deem appropriate.

22

6. In carrying out its monitoring duties, the Monitoring Panel may seek nonprivileged backup

23 or further documents or information regarding any complaint identified on the tracking spreadsheet in

24 order to, among other things, review the propriety and justness of the resolution of any such complaint.

25

26

27

28

24

Case 3:03-cv-0285J8 Document 321 Filed 03/<DS/2007 Page 30 of 58

1

XVI. GUARANTEED FAIR TREATMENT SYSTEM

2

Within one month of the Approval Date, FedEx Express will revise its Guaranteed Fair

3 Treatment ("GFT") process as follows:

4

1. To modify the steps for initiating a GFT to encourage, rather than require, employees to

5 engage in an open and frank discussion with the decision-maker before the GFT; and

6

2. To allow the employee a reasonable amount of time prior to the GFT hearing to review and

7 respond to the Management Rationale submitted in support of the employment decision which is the

8 subject of the GFT complaint.

9

XVII. INTERNAL COMPLIANCE/MONITORING PANEL

10

1. Within two (2) weeks of the Approval Date, FedEx Express shall establish a three-member

11 Monitoring Panel which shall be charged with the overall responsibility for monitoring compliance

12 with the terms of the Decree. The Panel shall be comprised of an attorney from the FedEx Express

13 Labor and Employment Group, an attorney from the FedEx Express Litigation Group, and a Managing

14 Director from the FedEx Express Htiman Resources Division. The Monitoring Panel will report

15 directly to the Chief Diversity Officer and the Legal Department Vice President member of the FedEx

16 Express Officer Diversity Council.

17

2. In the event that a member of the Monitoring Panel ceases to function in that role, the

18 Company shall designate a replacement member of the Monitoring Panel as soon as practicable but no

19 later than (30) days after the Monitoring Panel member ceases to function in that role.

20

3. The following procedure shall apply in selecting the members of the Monitoring Panel:

21

a. The Company shall use its Best Efforts to appoint individuals who will be effective

22 in carrying out its duties and responsibilities.

23

b. Prior to appointing an individual for the Monitoring Panel position, FedEx Express

24 shall provide Monitoring Counsel with a resume including the identity, background, experience and

25 qualifications of the individual that FedEx Express intends to appoint to the position. FedEx Express

26 also shall provide Monitoring Counsel with a description of the reasons why it designated this

27 individual. Within ten (10) days of receiving the resume and description of the basis for the selection,

28

25
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1 Monitoring Counsel may interview the designated individual and provide their views as to the

2 individual's qualifications and suitability for the Monitoring Panel position.

3

4. The Monitoring Panel shall use its Best Efforts to ensure the Company's implementation of

4 and compliance with the provisions of this Decree. FedEx Express shall provide such support staff,

5 funds and other resources as may be reasonably necessary to discharge FedEx Express's obligations

6 under the Decree.

7

XVIII.

REPORTING AND RECORDKEEPING

8

1. The parties agree to appointment of Hunter Hughes as Special Master. The Special Master

9 may be removed at the joint written request of Class Counsel and FedEx Express, or by order of the

10 Court upon motion of any Party and a showing of good cause that Hunter Hughes should no longer

11 serve as Special Master. In the event that Hunter Hughes becomes unavailable to serve as Special 12 Master for any reason, Class Counsel and FedEx Express will make a good faith effort to select on a 13 joint basis a new Special Master. If Class Counsel and FedEx Express are unable to reach agreement 14 as to a successor Special Master within forty-five (45) days following the date Hunter Hughes becomes 15 unavailable to serve as Special Master, the Court shall appoint a successor Special Master upon motion

16 of Class Counsel or FedEx Express. Class Counsel or FedEx Express may nominate to the Court 17 persons for consideration as a successor Special Master. Class Counsel and FedEx Express shall each 18 have the right to interview any nominated person, and to present argument and evidence to the Court

19 regarding the selection of the successor Special Master.

20

2. Monitoring Counsel and the Special Master will receive the Scheduled Reports set forth in

21 Sections XVIII.D on the Schedule set forth in Section XVIII.C. The Special Master will meet with the

22 Monitoring Counsel and the appropriate representatives ofFedEx Express as deemed necessary, but at

23 least annually.

24 A. Documents to Be Preserved for the Duration of the Decree.

25

1. FedEx Express shall retain the following employment-related records for the duration of the

26 Decree or as required by state or federal law, whichever is longer:

27

28

26

Case 3:03-cv-0265S8 Document Z21 Filed 03/tDS/2007 Page 32 of 58

1

a. A computer readable database or databases containing computerized payroll and

2 personnel information for employees in the Western Region of AGFS and DGO Divisions for the time

3 period covered by the Decree. The payroll and personnel information contained in the database or

4 databases shall include the information currently contained in FedEx Express's PRISM, JCATS,

5 FAMIS, and payroll databases.

6

b. Records of who registers for the ASPIRE to Management classes during the time

7 period covered by the Decree.

8

c. Records of all jobs that are posted in the JCATS system and a record of how those

9 jobs are filled, if they are during the time period covered by the Decree.

1 0

d. Performance evaluation forms for all employees, including Operations and Senior

11 Managers, completed during the time period covered by the Decree.

12

e. All formal internal complaints filed during the time period covered by the Decree

13 pursuant to Section XV, regarding alleged Race or National Origin discrimination, and the non-

14 privileged written findings of the investigation.

15

f. All documents expressly required to be created by this Decree.

16

2. Nothing in this Decree shall be interpreted to relieve FedEx Express of any recordkeeping

17 requirements otherwise imposed by applicable Federal or State law.

18 B. Access to Documents.

19

1. Monitoring Counsel shall, upon reasonable notice, be entitled to review all documents

20 required to be maintained or created by the express terms of this Decree, except, however, that

21 Monitoring Counsel shall not be entitled to review any such documents that are protected by

22 attorney-client or work product privilege. FedEx Express may object that the production of certain

23 documents is unreasonable, and the Special Master shall decide, whether Monitoring Counsel have a

24 reasonable basis for receiving the documents.

25

2. All documents required to be maintained by the express terms of the Decree are and shall

26 be treated as confidential business records. In light of Monitoring Counsel's continuing role in the

27 administration of this Decree, Monitoring Counsel will be provided access to such documents on a

28

27
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Case 3:03-cv-0265J8 Document 321 Filed 03/tDS/2007 Page 33 of 58

1 confidential basis in order to investigate and resolve potential non-compliance with the Decree.

2 Monitoring Counsel and Class Counsel (with whom Monitoring Counsel can share these documents)

3 shall not divulge any such documents to any third party (except any expert retained in connection with

4 Decree enforcement who agrees to be bound by the Decree's confidentiality provisions), unless so

5 ordered by the Court after notice to FedEx Express and an opportunity for FedEx Express to object to

6 such disclosure and be heard. Upon expiration of this Decree, Monitoring Counsel and Class Counsel

7 shall promptly return to FedEx Express any and all documents FedEx Express furnished under this

8 Decree. Neither Monitoring Counsel nor Class Counsel shall use these documents for any purpose

9 other than enforcing the terms of this Consent Decree.
10 c. Reporting Schedule.

11

FedEx Express shall provide Progress Reports to Monitoring Counsel and the Special Master

12 on the Company's compliance with the Decree's requirements 30 days after the close of the five (5)

13 following reporting periods: months 1 through 12; months 10 through 21; months 19 through 30;
14 months 28 through 39; and months 37 through 45.
15
D. Contents of the Progress Reports.
16

17

The Progress Reports shall include the following information:

18

a. Adverse impact analyses of any selection device implemented by FedEx Express

19 after the Approval Date, used to select employees as Couriers, RTDs, or Service Agents, and any

20 documents relating to validation of, or attempts to validate any such devices, in accordance with

21 Section XI.A.

22

b. Report of location audit of performance reviews, as provided for in Section XII.7,

23 to make sure guidelines and rating scales for objective measures are followed and that exception rating

24 documentation process is followed;

25

c. Adverse impact analysis of subjective measures of performance reviews, and any

26 analysis relating to the validation of performance evaluation measures or attempts to validate such

27 measures, as set forth in Section XII.7.

28

d. Complaint tracking spreadsheet as set forth in Section XV.2.

28
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1

e. Three Complaints per quarter, as chosen by the Monitoring Panel, plus all, non-

2 privileged back up materials as set forth in Section XV.4.

3

f. Computer-readable data of all discipline imposed (warning letters and performance

4 reminders), facility, race, and job title of employee, and reason codes;

5

g. Monitoring reports to assure that all hourly jobs (with very limited exceptions

6 spelled out in the Decree) are filled through JCATS, as provided in Section XI.C.6.

7

h. Reports of the Monitoring Panel to ensure that CEV rules are followed for hourly

8 promotions, in accordance with the requirement in Section XI.F.

9

i. A chart or charts displaying the number and percentage of White, African

10 American, and Latino employees who applied for Courier, Ramp Transport Driver, Customer Service

11 Agent, or Operations Manager positions, and the number and percentage of White, African American,

12 and Latino employees who met the Minimum Qualifications for each position. This information shall

13 be reported on a Western Region-wide basis for the AGFS and DGO Divisions, by affirmative action

14 plan.

15

J. A chart or charts displaying the number and percentage of White, African

16 American, and Latino employees who were promoted to Courier, Ramp Transport Driver, Customer

17 Service Agent, or Operations Manager during a reporting period. This information shall be reported

18 on a Western Region-wide basis for the AGFS and DGO Divisions, by affirmative action plan.

19

k. A description of the implementation and delivery of the training required by

20 Sections XII.3, XII.7, XIV.4, and lists of those in attendance.

21

1. Copies of all training materials used by the Company during the reporting period to

22 train managers and Human Resources personnel regarding equal employment opportunity, pursuant to

23 Section XXI.

24

m. An organizational chart or charts, which lists all Human Resource staff who have

25 substantive responsibilities for the Western Region of the AGFS and DGO Divisions.

26

n. Certification by the Monitoring Panel that it has used Best Efforts to see that the

27 Notice and Summary of Consent Decree as described in Section XX has been provided to employees

28 as required by the Decree.

29

Case 3:03-cv-0265J8 Document 321 Filed 03/tDS/2007 Page 35 of 58

1

o. A summary of the formal internal complaints received during the reporting period

2 alleging race or national origin discrimination in the Western Region as described in Section XV.2.

3 This summary shall be kept confidential and shall not be provided to any person or entity not a party to

4 this Consent Decree.

5

XIX. DISPUTE RESOLUTION AND ENFORCEMENT PROCEDURES

6

1. The Special Master appointed pursuant to Section XVIII shall have authority to resolve all

7 disputes arising under the Decree, subject to limitations and standards set forth in the Decree.

8

2. At the request of Monitoring Counsel or FedEx Express, the parties shall use Best Efforts to

9 resolve promptly any differences or any disputes regarding the interpretation or implementation of the

10 Consent Decree.

11

3. Monitoring Counsel or FedEx Express shall have the right to initiate steps to resolve any

12 dispute or issue of compliance regarding any provision of the Decree subject to limitations and

13 standards set forth in the Decree.

14

a. If Monitoring Counsel or FedEx Express has good reason to believe that a

15 legitimate dispute exists, the initiating party shall first promptly give written notice to the other party 16 including: (a) a reference to all specific provisions ofthe Decree that are involved; (b) a statement of

17 the issue; (c) a statement of the remedial action sought by the initiating party; and (d) a brief statement

18 of the specific facts, circumstances and any other arguments supporting the position of the initiating

19 party;

20

b. Within thirty (30) days after receiving such notice, the non-initiating party shall

21 respond in writing to the statement of facts and arguments set forth in the notice and shall provide its

22 written position, including the facts and arguments upon which it relies in support of its position;

23

c. Monitoring Counsel and FedEx Express shall undertake good-faith negotiations,

24 including meeting or conferring by telephone or in person and exchanging relevant documents and/or

25 other information, to attempt to resolve the issues in dispute or alleged noncompliance;

26

d. The Special Master, upon motion, may permit Monitoring Counsel or FedEx

27 Express to take post-settlement discovery as provided by the Federal Rules of Civil Procedure, but
28

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Case 3:03-cv-0285J8 Document Z21 Filed 01/tDS/2007 Page 36 of 58

1 only as to matters relevant to the underlying claim of breach, if the Special Master determines that the 2 informal exchange of documents or information has not been sufficient to allow Monitoring Counsel or 3 FedEx Express to present the dispute upon a factual record adequate for a fair determination of the

4 Issue;

5

e. If the parties' good-faith efforts to resolve the matter have failed, and after written

6 notice of an impasse by the moving party to the non-initiating party or parties, Monitoring Counsel or

7 FedEx Express may file a motion with the Special Master, with a supporting brief, requesting

8 resolution of the dispute or the issues of non-compliance, provided however, that such motion shall be

9 limited to the dispute(s) and/or issue(s) as to which the parties have met and conferred as described in

10 this Section;

11

f. The non-moving parties will have fifteen (15) days to respond to any such motions;

12

g. The Special Master shall attempt within fifteen (15) days after filing of the final

13 brief to resolve the dispute and may schedule a hearing or other proceeding, including an evidentiary

14 hearing, to resolve the matter; and

15

h. Within thirty (30) days of any hearing, the Special Master shall issue a written

16 determination, including findings of fact if requested by any Party.

17

4. The provisions of this Section do not prevent Monitoring Counsel or FedEx Express from

18 promptly bringing an issue directly before the Court when exigent facts or circumstances require

19 immediate Court action to prevent a serious violation of the terms of this Decree, which otherwise

20 would be without meaningful remedy. The moving papers shall explain the facts and circumstances

21 that allegedly necessitate immediate action by the Court. Absent a showing of exigent facts or

22 circumstances, the Court shall refer the matter to the Special Master to resolve in accordance with

23 procedures set forth above. If any such matter is brought before the Court requesting immediate

24 action, the other party shall be provided with appropriate actual notice, and an opportunity to be heard

25 on the motion, under the Local Rules of the Court and the Federal Rules of Civil Procedure. The Court

26 in its discretion may set such procedure for emergency consideration as are appropriate to the

27 particular facts or circumstances, but no such matter may be heard or considered on an ex parte basis.

28

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1

5. All fees and expenses of the Special Master shall be paid as provided in Section XXIII. A,

2 infra.

3

6. Monitoring Counsel or FedEx Express may appeal a decision of the Special Master to the

4 Court provided that such an appeal is made within fourteen (14) days of receipt of notice of the

5 decision by the Special Master. Any such appeal shall be brought by motion under the Local Rules of

6 the Court and Federal Rules of Civil Procedure. The decision rendered by the Special Master shall be

7 affirmed unless the Court determines that the Special Master made clearly erroneous findings of fact or

8 wrongly interpreted or applied the Consent Decree. A party may seek on appeal any remedy provided

9 by law, provided that such remedy is consistent with the provisions of this Decree.

10

7. Only Monitoring Counsel or FedEx Express shall have standing to move the Court to

11 enforce, apply, or modify this Decree. Any individual concerned about FedEx Express's compliance

12 with this Decree may so notify Monitoring Counsel and request that they examine FedEx Express's

13 compliance and seek such relief, if any, as may be appropriate.

14

8. In the event that any party seeks to utilize the dispute resolution procedure set forth in

15 Section XIX, then each party shall bear its own attorneys' fees, costs and expenses for all work

16 performed through resolution by the Special Master (although Monitoring Counsel may be paid from

17 the Settlement Fund Account as described in Section XXXIII.C, to the extent it remains). In the event

18 that any party seeks to appeal any decision of the Special Master, then the prevailing party in such

19 matter shall be entitled to recover reasonable attorneys' fees, costs and expenses incurred in such

20 appeal from the other party, consistent with applicable standards under Title VII. Whether and to what

21 extent any party is a prevailing party entitled to an award of fees and expenses shall be determined in

22 the sole and absolute discretion of the Court.

23

9. The dispute resolution provisions set forth in Section XIX are not intended to be an

24 exclusive mechanism for resolution of complaints of discrimination by FedEx Express. FedEx Express

25 employees complaining of violations of state and/or federal law prohibiting discrimination in

26 employment may use FedEx Express's internal complaint procedure or may file charges with the

27 EEOC, or the state or local fair employment agency, even where such violations, if proven, might also

28 constitute violations of the provisions in this Consent Decree. The parties mutually intend that the

32
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1 enforcement provisions of this Decree shall not be used as an alternative method for Class Members to

2 litigate entitlement to individual relief for claims of alleged race or national origin discrimination or

3 retaliation. Individual complaints for such alleged violations, as distinguished from pattern or practice

4 allegations, shall not be considered to raise an issue of compliance or non-compliance with this

.5 Decree.

6

XX. IMPLEMENTATION AND COMMUNICATION OF COMMITMENT

TO DIVERSITY, EQUAL EMPLOYMENT OPPORTUNITY AND

7

REQUIREMENTS OF CONSENT DECREE

8

Not later than thirty days after the Approval Date, FedEx Express shall provide to each of its

9 Western Region officers, managers, and employees a written communication that reflects the

10 Company' s commitment to diversity, equal employment opportunity, and implementation of the non-

11 monetary provisions of the Consent Decree, a copy of which has been provided to Class Counsel. At

12 least once during each Decree Year thereafter, FedEx Express shall provide a similar communication

13 to each of its Western Region officers, managers, and employees after first providing a copy and

14 reasonable opportunity for comment to Monitoring Counsel. The communications will be signed and

15 issued by the ChiefExecutive Officer ofFedEx Express.

16

XXI. TRAINING OF MANAGEMENT REGARDING EEO

17

FedEx Express will maintain its training of managers and Human Resources personnel

18 regarding EEO issues and harassment.

19

FedEx Express will continue to provide each new employee and manager in the Western

20 Region of its AGFS and DGO Divisions, as part of his/her new employee orientation, with the

21 Company's commitment to equal opportunity and the expectation of compliance with that

22 commitment.

23

Within three months ofthe Approval Date, FedEx Express will develop an interactive

24 mandatory diversity training module to help managers identify barriers that inhibit valuing race and
25 ethnic diversity, understand why race and ethnic diversity awareness and acceptance is important to
26

27 FedEx Express' growth and future, learn how race and ethnic stereotypes hinder effective

28 communication and workplace interactions, learn how to recognize differences and how those

33
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Case 3:03-cv-0285J8 Document Z21 Filed 01/tDS/2007 Page 39 of 58

1 differences can enhance the workgroup.

2

XXII. MONETARY RELIEF, NOTICE AND CLAIMS PROCEDURE

3 A. Payment of the Settlement Fund.

4

1.

FedEx Express will pay a monetary amount according to the formula set forth in this

5 section XXII.A.1 for the purpose of providing individual monetary awards to the Class Representatives

6 and other eligible members of the Settlement Class, payment of attorneys' fees, litigation expenses,

7 and costs, as provided in Section XXIII.B and XXIII.C, funding of the settlement administration

8 expenses, payment of payroll taxes pursuant to Section XXII.M, payment of fees and costs of the

9 Special Master in accordance with the provisions of Section XXIII.A and payment of the fees and

10 costs of the Claims Administrator in accordance with the provisions of Section XXII.E. The precise

11 amount to be paid by FedEx will be calculated as follows:

12

(1) $53,500,000.00, plus

13

(2) either 5% [.05] or the United States Treasury Bill percentage rate as established on the tenth (1Oth) business day after Preliminary

14

Approval, whichever is lower, multiplied by $53,300,000 less the amount of the incremental payments for the period between the tenth

15

(1Oth) business day after Preliminary Approval and the date FedEx

Express wire transfers incremental payments to the Settlement Fund

16

Account as and at the times required under this Consent Decree. Any

17

opt-out credits due, pursuant to Section XXII.D.4. shall be deducted from the final payment before calculation of the lower of the 5% or the

18

United States Treasury Bill rate.

19

20

2.

The Claims Administrator will open and administer an interest-bearing account

21 ("Settlement Fund Account") approved by Class Counsel with a unique Tax Payer Identification 22 Number. The monetary payments described above shall be made into this Settlement Fund Account.

23 Payments will be made by FedEx Express to the Settlement Fund Account as follows:

24

a.

Within ten business days of the Preliminary Approval Date, FedEx Express will wire

25 $200,000 to the Settlement Fund Account. This amount is intended to cover costs of the mailed

26 notices and expenses associated with the claims procedure.

27

b.

If there is no Final Approval, then within seven business days of the court declining

28 Final Approval the Claims Administrator shall return to FedEx Express any funds remaining in the

34

Case 3:03-cv-0285J8 Document Z21 Filed 01/tDS/2007 Page 40 of 58

1 Settlement Fund Account, in the event that the funds wired for notice as provided in Section

2 XXII.A.2.a. exceeded the actual cost of notice.

3

c.

Within seven business days of Final Approval, FedEx Express will wire $360,000 to

4 the Settlement Fund Account, or such amount as is approved by the Court, to be distributed by the

5 Claims Administrator to the Class Representatives and Declarant/Deponents as Service Awards as set

6 forth in Section XXII.B.1.

7

d.

After Final Approval, and within seven business days after the Claims Administrator

8 has informed FedEx Express in writing that it is prepared to distribute monetary awards to the eligible

9 members of the Settlement Class, FedEx Express will wire the balance of money due pursuant to

10 Section XXII.A.1 above, except that FedEx Express will wire Class Counsel's attorneys' fees,

11 litigation expenses, and costs to the Settlement Fund Account within seven business days after Final

12 Approval or the issuance of a court order approving Class Counsel's attorneys' fees, litigation

13 expenses, and costs, whichever is later, as provided in Section XXIII.B.3. After Final Approval, and

14 within seven business days after the Claims Administrator has informed FedEx Express in writing that

15 it is prepared to distribute monetary awards to the eligible members of the Settlement Class, FedEx

16 Express will also wire to the Settlement Fund Account one half of the employer's share of all

17 applicable payroll taxes, on amounts treated as wages.

18

Upon payment of the amounts sets forth in Sections XXII.A.2.a, XXII.A.2.c and XXII.A.2.d to

19 the Settlement Fund Account and in Section XXII.B.2 to Class Counsel as provided in Section
20

21 XXIII.B.3 FedEx Express will have no further monetary obligation hereunder to Class

22 Representatives, members of the Settlement Class, or Class Counsel, including no obligation to pay

23 any funds for distribution to Class Representatives or members of the Settlement Class; no obligation

24 to pay costs of mailed notices and expenses associated with the claims procedure; no obligation to pay
25 any other settlement costs; no obligation to pay any fees or costs for the Special Master; no obligation
26 to pay any fees and costs for the Claims Administrator; no obligation to pay any taxes associated with 27
28 the Settlement Fund Account or distributions from the Settlement Fund Account; and no obligation to

35
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Case 3:03-cv-0265J8 Document 221 Filed 03/tDS/2007 Page 41 of 58

1 pay any fees or costs to Class Counsel or Monitoring Counsel. Provided however the Court may order

2 FedEx Express to pay fees and costs as a nonprevailing party pursuant to Section XIX.8.

3

4

Nothing herein shall be deemed to require FedEx Express to separate or segregate its assets into

5 a restricted fund. The Settlement Fund Account will constitute a qualified settlement fund and it will

6 be created, managed and disbursed by the Claims Administrator under the supervision of Class

7 Counsel. FedEx Express will have no responsibilities or liabilities with ~espect to the Settlement Fund

8 Account, its administration, or distribution therefrom.

9 B. Distribution of Settlement Fund.

10

1. Class Representatives and Declarant-Deponents.

11

Each Class Representative shall receive a Service Award in the liquidated amount of$30,000,

12 or such amount as is approved by the Court, not to exceed $30,000 per Class Representative. Each of

13 eighteen class members who signed a declaration and whose deposition was taken by FedEx Express

14 shall receive a Service Award in the liquidated amount of$5,000, or such amount as is approved by the

15 Court, not to exceed $5,000 per Declarant/Deponent. A list of these individuals is contained in

16 Appendix F. This liquidated amount will compensate the Class Representatives and

17 Declarant/Deponents in consideration for the time and effort expended in these proceedings. Payment

18 of these sums, not to exceed a total of$360,000, shall be made by the Claims Administrator no later

19 than seven (7) calendar days after receipt of the funds described in Section XXII.A.c

20

2. Settlement Class.

21

The Claims Administrator will distribute from the Settlement Fund Account the sum of

22 $38,500,000, less all opt-out credits, any notice payments, and Service Awards approved by the Court

23 for Class Representatives and Declarants/Deponents to eligible members of the Settlement Class who

24 do not opt out based on a formula set out in the allocation plan as set forth in Section XXII. L.

25 c. Notice.

26

Within twenty days following the Preliminary Approval Date, FedEx Express shall provide the

27 Claims Administrator with a computer disk containing the full names, social security numbers, last

28

36
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Case 3:03-cv-0265SB Document Z21 Filed 01/tDS/2007 Page 42 of 58

1 known addresses and phone numbers, start dates and, as applicable, end dates of employment with

2 FedEx Express and BST status for all employees employed by FedEx Express through the Preliminary

3 Approval Date who are potential Settlement Class members. Within twenty days following the

4 Preliminary Approval Date, Class Counsel shall provide the Claims Administrator with a computer

5 readable list of all known potential Settlement Class members and their mailing addresses. Prior to the

6 mailing of the Notices, the Claims Administrator will combine these lists of potential Settlement Class

7 members received from FedEx Express and Class Counsel and update any new address information for

8 potential class members as may be available through the National Change of Address ("NCOA")

9 system. Within 40 days of the Preliminary Approval Date, the Claims Administrator shall mail, via

10 first class postage, Notices of Class Settlement, and Claim Forms, all in the form approved by the

11 Court in the Preliminary Approval Order, to all known potential Settlement Class members at their last

12 known address or at the most recent address that may have been obtained through the NCOA. The

13 Claims Administrator will trace all returned undeliverable notices and re-mail to the most recent

14 address available.

15 D. Objections and Opt-Outs.

16

Class members may object to or opt-out of the class settlement.

17

1. Objections.

18

Class members objecting to the terms of the settlement must do so in writing; the written

19 objection must be sent to the Claims Administrator on or before the date specified in the Preliminary

20 Approval Order. The Claims Administrator will record the date of receipt of the objection and forward

21 it, by e-mail as a PDF attachment, to both FedEx Express and Class Counsel within two (2) business

22 days following receipt. The Claims Administrator will also file the original objections with the Clerk

23 of the Court no later than five (5) days prior to the scheduled Fairness Hearing date. The Claims
24 Administrator shall retain copies of all written objections until such time as it has completed its duties

25 and responsibilities under this Decree.

26

Opt-Outs. ·

27

Class members may exclude themselves, or opt-out, of the monetary relief provisions of the

28

37
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1 class settlement. Any request for exclusion must be in the form of a written "opt-out" statement sent to 2 the Claims Administrator. Information on how to opt-out of the settlement shall be made available by 3 the Claims Administrator. A person wishing to opt-out must sign a statement which includes the
4 following language:

5

I understand that I am requesting to be excluded from the class monetary settlement and

6

that I will receive no money from the settlement fund created under the Consent Decree

entered into by FedEx Express. I understand that if I am excluded from the class

7

monetary settlement, I may bring a separate legal action seeking damages, but may

8

receive nothing or less than what I would have received if I had filed a claim under the class monetary settlement procedure in this case. I also understand that I may not seek

9

exclusion from the class for injunctive relief and that I am bound by the injunctive

provisions of the Consent Decree entered into by FedEx Express.

10 A class member submitting an Opt-out statement shall sign and date the statement and deliver it
11 to the Claims Administrator by the date specified in the Preliminary Approval Order.
12 The Claims Administrator shall date stamp the original of any Opt-out statement and serve
13 copies on both FedEx Express and Class Counsel by email as a PDF attachment within two (2)
14 business days of receipt of such statement. The Claims Administrator will also file the original Opt-
15 out statements with the Clerk of the Court no later than five (5) days prior to the scheduled Fairness
16 Hearing date. The Claims Administrator shall retain copies of all Opt-out statements until such time as
17

it has completed its duties and responsibilities under this Decree. 18
3. Rescission of Class Member Opt-Outs.
19 The parties recognize that some class members who initially submit Opt-out statements seeking
20
exclusion may, upon further reflection, wish to withdraw or rescind such Opt-out statements. The 21
parties agree that class members shall be permitted to withdraw or rescind their Opt-out statements by 22
submitting a "Rescission of Opt-out" statement to the Claims Administrator. The Rescission of Opt23

out statement shall include the following language: 24

25

I previously submitted an Opt-out statement seeking exclusion from the class monetary

26

settlement. I have reconsidered and wish to withdraw my Opt-out statement. I understand that by rescinding my Opt-out I may be eligible to receive an award from

27

the claims settlement fund and may not bring a separate legal action against FedEx Express seeking damages with respect to the Released Claims.

28

38
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Case 3:03-cv-0285J8 Document ~21 Filed 03/tDS/2007 Page 44 of 58

1

A class member submitting such a rescission statement shall sign and date the statement and

2 cause it to be delivered to the Claims Administrator no later than the deadline for the claims filing

3 period specified in the Preliminary Approval Order.

4

The Claims Administrator shall stamp the date received on the original of any Rescission of

5 Opt-out statement and serve copies to counsel for FedEx Express and Class Counsel by email as a PDF

6 attachment no later than (2) days after receipt thereof and shall file the date-stamped originals with the

7 Clerk of the Court no later than five (5) business days prior to the date of the Fairness Hearing. The

8 Claims Administrator shall retain copies of all Rescissions of Opt-out statements until such time as the

9 Claims Administrator is relieved of its duties and responsibilities under this Decree.

10

4. Opt-Out Credits.

11

In the event any Settlement Class member elects to opt-out in the time and manner set forth in

12 Section XXII. D, and does not rescind it, FedEx Express shall be entitled to a credit for each such opt-

13 out. The credit amount will be 100% of the average settlement award of all class members eligible to

14 participate in the monetary settlement fund as determined by the Allocation Plan, Section XXII. L.

15 The aggregate credit for each opt-out shall be calculated and deducted from the final payment to be

16 made to the Settlement Fund Account prior to the wire transfer of those funds as set forth in Section

17 XXII.A.2.d.

18 E. Claims Administration.

19

The Claims Administrator shall (1) prepare and mail settlement notices and claim forms to

20 class members; (2) establish and operate a website designed to provide information to and 21 communication with class members; (3) receive and evaluate claims eligibility; (4) seek additional 22 information from claimants, when appropriate; (5) receive, serve, and file opt-out statements, 23 rescission of opt-out statements, and objections; (6) respond to questions from potential class 24 members; (7) implement the allocation plan; (8) maintain a toll-free number for communicating with 25 class members; and (9) any other duties necessary to carry out its responsibilities set forth in this

26 Decree.

27

The Claims Administrator shall make claim forms available to potential class members who

28

39
Dl CONSENT DECREE- CASE NO. : C03-2659 SI; C 03-2878 SI

Case 3:03-cv-026558 Document 321 Filed 01/(])9/2007 Page 45 of 58

1 submit oral, e-mail, or written requests for claim forms. The Claims Administrator shall mail the

2 requested claim form via first class postage within two (2) business days after receiving a request. If

3 FedEx Express, or its counsel, receives requests for claim forms or for information regarding the class

4 settlement, it shall refer such requestors to the toll-free number established by the Claims

5 Administrator for the purpose of administering this settlement. The requestors shall be informed that

6 any requests for claim forms or information should be directed to the Claims Administrator. The

7 Claims Administrator shall retain copies of all written requests for claim forms and all records of oral

8 or e-mail requests for claim forms until such time as it has completed its duties and responsibilities

9 under this Decree.

1 0

The fees, costs, and expenses of the Claims Administrator shall be paid from the Settlement

11 Fund Account. All payments to the Claims Administrator shall be approved by Class Counsel.

12 F. Submission of Claim Forms.

13

Class members who seek recovery of monetary compensation must complete a claim form and

14 cause it to be filed with the Claims Administrator by the claim filing deadline set forth in the

15 Preliminary Approval Order. The claim form must be postmarked on or before such date in order to be

16 considered timely. All claim forms must be signed under penalty of perjury to be considered. Failure

17 to file a timely claim form, for any reason whatsoever, shall bar the potential class member from

18 having his or her claim considered and from receiving monetary compensation from the Settlement

19 Fund Account. Class members who file a claim form must notify the Claims Administrator of any

20 change of address. A failure to notify the Claims Administrator of a change of address may result in

21 the forfeiture of a monetary award. The Claims Administrator shall be available through the toll-free

22 telephone number and via e-mail through the Claims Website to respond to requests form class

23 members for assistance in completing and filing claim forms. Class Counsel shall also be available to

24 consult with and provide assistance to potential class members who request assistance in completing

25 their claims forms.

26 G. Deceased Claimants.

27

Claims may be filed by deceased claimants through representatives of their estate if appropriate

28

40
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1 documentation is provided. Claim payments shall be made payable to the estate of the deceased

2 claimant.

3 H. Determining Eligibility.

4

The Claims Administrator shall make the determination as to whether a claim form is complete.

5 If it is not complete, the Claims Administrator shall request additional information from the claimant,

6 if it appears that such additional information would complete the Claim Form. Such requests for

7 information shall be in writing and shall specify the information necessary to complete the claim form.

8 The request for information will be sent via first class mail and inform the claimant that a response 9 must be returned no later than thirty days from the date the request for information was mailed. The

10 claimant must provide the requested information, signed under penalty of perjury, to the Claims 11 Administrator by mail with a postmark no later than thirty days from the date of the mailed request for 12 information. Such additional information shall be considered part of the original claim form and will

13 relate back to the original filing date. The failure of a claimant to timely respond to the request for

14 information may result in the denial of the claim.

15 I. Late-Filed Claims.

16

For claims received after the filing deadline, the Claims Administrator shall notify late-fling

17 claimants that their claims are untimely and that they are not eligible for any monetary award. The

18 Claims Administrator shall also inform late-filing claimants that they may seek a review of the

19 determination that they filed untimely by requesting the Claims Administrator to reconsider its

20 determination. The Claims Administrator may reverse its determination that a claim was not timely

21 filed only if the claimants proves that the claim form was postmarked on or before the postmark filing

22 deadline and that the untimeliness determination is erroneous.

23 J. Appeals of Claims Eligibility.

24

Within ninety days of the close of the claims filing period, all ineligible claimants shall receive

25 written notice of their ineligibility for monetary relief. Any claimants wishing to seek review of their

26 ineligibility determinations must do so by returning a written request for review to the Claims

27 Administrator by mail with a postmark no later than twenty-one days from the date of the notice of

28

41

Case 3:03-cv-0285JB Document Z21 Filed 03/<DS/2007 Page 47 of 58

1 claim ineligibility. Failure to file a timely request for review shall bar a claimant from challenging a

2 determination of ineligibility.

3

The Claims Administrator shall resolve the requests for review based on the written request for

4 review and any other documentation or written information submitted by the claimant, or deemed

5 necessary by the Claims Administrator. The Claims Administrator may seek further written

6 information from the claimant as to the basis of their request and may consider the written arguments

7 of Class Counsel or FedEx Express.

8

The Claims Administrator shall attempt to expeditiously resolve any request for review within

9 sixty days after the filing of the request for review. The Claims Administrator's decisions shall be

10 communicated to the claimant in writing and shall be final, binding and non-appealable.

11 K. Claimant Information Provided by FedEx Express.

12

The parties understand and agree that FedEx Express may possess information that may assist

13 in the determination of eligibility of potential class members for monetary compensation. FedEx

14 Express shall reasonably cooperate in providing such information which Class Counsel or the Claims

15 Administrator deems reasonably necessary to assist in determining the eligibility of any class member

16 for monetary relief. FedEx Express shall attempt to provide such information within fourteen days of 17 any written request for the information, although FedEx Express may object that the production of any

18 such information is unreasonable, and the Special Master shall decide whether Class Counsel and/or

19 the Claims Administrator have a reasonable basis for receiving the information. Neither Class Counsel

20 nor the Claims Administrator shall be entitled to receive information that is protected by attomey-

21 client or work product privilege. 22 L. Allocation Plan.

23

Each class member, including Class Representatives, who seeks to receive an award must fill

24 out the claim form and supply information related to his or her claim. On the basis of a review of the

25 information supplied, the Claims Administrator shall allocate a certain number of points based upon

26 specific factors related to the claims. For those eligible African American and Latino members in the

27 Settlement Class who work or worked in hourly paid jobs the specific factors include length of service

28

42
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Case 3:03-cv-0265S8 Document Z21 Filed 03/tDS/2007 Page 48 of 58

1 in those jobs, status as a full-time or part-time employees, and whether the class member failed the 2 BST. For those eligible African American members in the Settlement Class who work or worked as 3 operations managers the specific factor is length of service as an operations manager. The Claims 4 Administrator shall total the points applicable to all eligible claimants, determine each eligible 5 claimant's proportionate share of the total points, and allocate each eligible claimant's proportionate

6 share of the Settlement Fund Account.

7

For example, if the amount available for distribution from the Settlement Fund Account to

8 eligible class member is $1,000,000.00, and the Claims Administrator has awarded 10,000 points to

9 eligible class members and if an eligible class member were awarded 10 points, then that class member

10 would receive an award of$1,000.00 since each point would be worth $100.00 ($1,000,000.00 +

11 10,000).

12 M. Distribution of the Monetary Awards.

13

As soon as practicable after making the calculations required by the allocation plan set forth in

14 Section XXII.L, the Claims Administrator shall distribute the monetary awards to eligible class

15 members via first class mail. The Claims Administrator shall only issue the checks in the name of the

16 eligible class members unless Section XXII.G is applicable. The checks shall be invalid if not cashed

17 within 90 days of the date issue.

18

Any amounts allocated to lost wages shall be subject to withholding for federal and state

19 income and payroll taxes. Each Class Member will be responsible for all income taxes on his or her

20 monetary award, and the Company shall be responsible for one half of the employer's share of all

21 applicable payroll taxes. The Claims Administrator will inform FedEx Express of the amount that is

22 one half of the employer's share of the payroll taxes to be paid by the Company and such payment

23 shall be made as provided in Section XXII.A.2.d. The other half of the employer's share of payroll

24 taxes shall be paid by the Claims Administrator out of the Settlement Fund Account. Any amounts

25 designated as interest shall not be subject to withholding and shall be reported, if required, to the IRS

26 on Form 1099-INT. The amounts paid for emotional distress shall not be subject to withholding and

27 shall be reported to the IRS on Form 1099-MISC.

28

43
Nn: r.o1-2659 Sl: c 03-2878 SI

Case 3:03-cv-028558 Document 321 Filed 03/tDS/2007 Page 49 of 58

1

Included with the check due to the eligible claimant will be a statement showing the gross

2 amount of the payment and an itemized statement of all deductions made. Flat rate deductions from

3 gross amounts that are determined to be wage payments will be made for federal and state income

4 taxes. The employee's share of social security and medicare tax, and any local income or payroll taxes

5 will be based on the rates in effect with the federal and local governments.

6

The Claims Administrator will be responsible for preparing the filing of all appropriate tax

7 filings and reports including, but not limited to, W-2 and 1099 forms for all eligible claimants and

8 Class Representatives for their payments from the Settlement Fund Account, as well as any required

9 for the Settlement Fund Account. The Claims Administrator will also be responsible for reporting and

10 remitting to the appropriate taxing authorities the employer's and employees' shares of payroll taxes.

11 N. Allocation of Monetary Awards.

12

The monetary awards to eligible class members shall be allocated to lost wages, compensatory

13 damages, and interest with 20% allocated to lost wages, 60% allocated to compensatory damages, and

14 20% allocated to interest.

15 0. Confidentiality of Claimant Information.

16

FedEx Express' counsel and payroll department will only be provided with the names and

17 social security numbers of class members who filed claims on a need-to-know basis. The identity of

18 the claimants will not be disclosed to anyone else at FedEx Express.

19 P. Cy Pres Fund.

20

It is the intention of the parties to distribute completely the funds in the Settlement Fund

21 Account. The Claims Administrator will use SSNs to attempt to get better addresses for any class

22 members whose checks are returned, and will remail the uncashed checks to the new addresses. The

23 Claims Administrator will also attempt to telephone any class member who has not cashed a check of

24 at least $2,000. If, despite those efforts, checks remain uncashed after they have become invalid, the

25 remaining sum shall become part of a cy pres fund to be distributed to one or more charitable

26 organizations selected by the Parties. If the Parties cannot agree, they will each submit two possible cy

27 pres beneficiaries to the Court, which shall determine the distribution of remaining funds.

28

44
POSEDl CONSENT DECREE- CASE NO.: C03-2659 SI; C 03-2878 SI

Case 3:03-cv-0265S8 Document Z21 Filed 03/tDS/2007 Page 50 of 58

1 Q. Report from Claims Administrator.

2

Within thirty days of the distribution ofthe monies from the Settlement Fund to the eligible

3 Class members, the Claims Administrator shall furnish an accounting of the distributions from the

4 Settlement Fund to the Court with copies to Class Counsel and FedEx Express. Within thirty days of

5 the completion of the Term of the Decree the Claims Administrator shall furnish a final accounting of

6 all the distribution from the Settlement Fund Account to the Court, Class Counsel and FedEx Express.

7

XXIII. PAYMENT OF FEES AND COSTS TO SPECIAL MASTER,

MONITORING COUNSEL AND CLASS COUNSEL

8

9 A. Payments to Special Master.

10

1. Payments to the Special Master will be made from the Settlement Fund Account by the

11 Claims Administrator. The Special Master will receive payment on the basis of his or her standard

12 hourly rates and reimbursement for out-of-pocket expenses within thirty days of submitting to the

13 Claims Administrator a bill including an itemized statement of time spent and work performed and

14 expenses and costs incurred. Copies of any bill submitted shall be sent to FedEx Express and Class

15 Counsel.

16

2. In order to manage effectively the Settlement Fund Account the Claims Administrator

17 may request the Special Master to provide an estimate of fees and costs that he or she anticipates

18 incurring.

19 B. Award of Fees, Costs and Expenses to Class Counsel.

20

1. As part ofthe settlement underlying this Consent Decree, FedEx Express has agreed to

21 pay to Class Counsel, on behalf of the Class Representatives and the Settlement Class, reasonable

22 attorneys' fees, litigation expenses, and costs.

23

2. After Final Approval of the Decree and court approval of Class Counsel's attorneys'

24 fees, litigation expenses and costs, FedEx Express has agreed to pay Class Counsel an award of

25 reasonable attorneys' fees, litigation expenses, and costs in the amount of$15,000,000 for work

26 performed and costs and expenses incurred through and including the Approval Date. Included in this

27 amount is approximately $2,575,000 for litigation costs and expenses incurred by Class Counsel. This

28 amount fully satisfies any obligation that FedEx Express may have to pay attorneys' fees, litigation

45

Case 3:03-cv-026558 Document 321 Filed 01/(])9/2007 Page 51 of 58

1 expenses, and costs for and on behalf of the Class Representatives and the Settlement Class for any and

2 all work performed and costs and expenses incurred through and including the Approval Date. This

3 amount is part of, and not in addition to, the Settlement Fund specified in Section XXII. A.

4

3. The award of attorneys' fees, litigation expenses and costs shall be paid as follows:

5

Within seven business days following Final Approval or the issuance of an order

6 approving attorneys' fees, litigation expenses and costs, whichever is later, FedEx Express will wire

7 the amount of the fees, litigation expenses, and costs approved by the Court to the Settlement Fund

8 Account, to hold in trust for Class Counsel. If the amount of attorneys' fees, litigation expenses, and

9 costs approved by the Court is less than $15,000,000, the difference shall be added to the amount

10 distributed to the Settlement Class pursuant to Section XXII.A.2.d.

11

4. Once FedEx Express makes the payments sets forth in Section XXIII.B.3 to the

12 Settlement Fund Account, no Class Counsel may assert any claim for such payments from FedEx

13 Express.
14 c. Payment of Fees, Expenses and Costs for Work Performed after Approval Date.

15

1. Class Counsel may receive payment for work performed and expenses incurred after the

16 Approval Date relating to the defense of the Decree, monitoring, administration and implementation of

17 the Decree, including but not limited to evaluating and enforcing compliance with the Decree,

18 including the retention of experts to assist in evaluating and enforcing the Decree on the following

19 basis:

20

a. Except as provided in Section XIX, all payments shall be made from the

21 Settlement Fund Account with FedEx Express having no responsibility for making such payments after

22 it has paid the Settlement Fund Account as provided in Section XXII. A.

23

b. All requests for payment shall be made at the discretion of Class Counsel who,

24

as appropriate, may make requests for payment to experts.

25

c. Class Counsel shall receive payment on the basis of their hourly rates and

26 reimbursement for out-of-pocket expenses. Class Counsel shall submit to the Claims Administrator a

27 bill including an itemized statement of time, work performed and expenses and costs incurred. Class

28

46
[PROPOSED] CONSENT DECREE- CASE NO.: C03-2659 SI; C 03-2878 SI

Case 3:03-cv-0265S8 Document Z21 Filed 03/tDS/2007 Page 52 of 58

1 Counsel shall be paid at the hourly rate schedule attached hereto as Appendix G, plus reasonable

2 annual rate increases.

3

The Claims Administrator shall pay the amounts requested by Class Counsel that meet the

4 requirements set forth in Section XXIII.C.1 within ten days of receipt of any such request, provided

5 that there are sufficient funds available in the Settlement Fund Account including sufficient funds to

6 pay the estimated costs of the claims and allocation processes and the estimated payments that may be

7 due to the Special Master. If after all payments have been made to the Class Representatives,

8 Declarant/Deponents and Settlement Class pursuant to Section XXII.B.1 and XXII.B.2 to Class

9 Counsel pursuant to Section XXIII.B, to the Claims Administrator, to the taxing authorities for all

10 applicable taxes, to the Special Master, and to Monitoring Counsel at their hourly rates for the

11 monitoring of the Decree, there are funds remaining in the Settlement Fund Account, then any

12 remaining amount will be distributed to Monitoring Counsel in recognition of their having taken the

13 risk that there would be insufficient funds in the Settlement Fund Account to pay Monitoring Counsel

14 at their hourly rates for monitoring the Decree.

15

16

17

18

19

20
21 Dated: April ~ , 2007
22 23 24 25 26

James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709) Claire Prestel (SBN 235649) Chimene I. Keitner (SBN 226948) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-806...____,

27

28

C:REE- ,

Case 3:03-cv-0285JB Document 321 Filed 01/tDS/2007 Page 53 of 58

Michael S. Davis

2

Barry Goldstein (SBN 141868)

3

GOLDSTEIN, DEMCHAK, BALLER, BORGEN

&DARDARIAN

4

300 Lakeside Drive, Suite 1000

Oakland, CA 94612

5

Telephone: (510) 763-9800

Facsimile: (510) 835-1417 6

7

By:_ _ _ _ _ _ _ _ _ _ _ _ __

8

Barry Goldstein

9

Waukeen Q. McCoy (SBN 168228)

LAW OFFICES OF WAUKEEN Q. McCOY

10

703 Market Street, Suite 1407

11

San Francisco, CA 94103

Telephone (415) 675-7705

12

Facsimile: (415) 675-2530

13

By: _ _ _ _ _ _ _ _ _ _ _ _ _ __

14

Waukeen Q. McCoy

15 Kay McKenzie Parker (SBN 143140)

16

LAW OFFICES OF KAY McKENZIE PARKER

225 Bush Street, 161h Floor

17

San Francisco, CA 941 04

Telephone: (415) 227-9622

18

Facsimile: (415) 227-4522

19 20

s~J&__

Kay McKen e Parker

21

22

Attorneys for the Plaintiffs

23

24

25

26

27

28

49
[PROPOSED] CONSENT DECREE- CASE NO.: COJ-2659 Sl; C 03-2878 Sl

1 2 3 4 5 6 7 8 9 10
11
12 13 14 15 16 17 18
19 !
20 21 22 Dated: April _ _, 2007 23 24 25
26
27 28

Kelly M. Dermody (SBN 171716) Daniel E. Barenbaum (SBN 209261) LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
John L. Burris SBN 69888) LAW OFFICES OF JOHN L. BURRIS 7677 Oakport Street, Suite 1120 Oakland, CA 94612 Telephone: (510) 839-5200 ext. 67 Facsimile; (510) 839-3882
By:_ _ _ _---=---------=----:------
John L. Burris
Guy B. Wallace (SBN 17615) Todd M. Schneider (SBN 158253) Joshua Konecky (SBN 182897) SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: (415) 421-7100 Facsimile: (415) 421-7105
By:,_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Michael S. Davis (SBN 160045) LAW OFFICES OF MICHAEL S. DAVIS 345 Hill Street San Francisco, CA Telephone: (415) 282-4315 Facsimile: (415) 358-5576
By = ---------=--~~~~-------­
Michael S. Davis

48
(PROPOSED) CONSENT DECREE- CASE NO.: C03-2659 SI; C 03-2878 Sl

04/ 06 / 07 04/06/2007

lF3R:I%G2 ~ i ~A~X34~ 153-c6v2-8002664558

/

Document~IY1 Af!ft~~ OA/Q)S/2007
ALTSB:UI.ER BERZON

Page 55 of 58

141002

lai002

1 2 3 4
$
6
1 8
9
10 11
12
13 14
15 16
17
18
19
20 21 ·
22 23
Dated: April 24 25
26 21
28

2007

Kelly M. Dermody (SBN 171716) Dauiel E. Barenba.utri (SBN 209261) LIEFF:o CABR.ASER, HEIMANN &
BERNSTElN~ LLP 215 Bauery ~30m Fb>r S1111 Francisco, CA 94111·3339 Telephone: (415) .956-1000 Facsimile: (415) 956-1008
By:·----~---------------------
Jobn L. Burris (SBN 69g88) LAW OffiCES OF JOHN L. BURRIS 7677 Oakport ~ Suite 1120 Oald~ CA 94612 Telephone: (510) 839·5200 ~. 67 Facsimile; (SlO) 839·3882

Todd M. Schneider (SBN 158253)

Guy B. Wallace (SBN 176151)

Joshua Ko.oedcy (SBN 182897)

SCHNEIDER & WALLACE

180 Montgomery Stree~ Suite 2000

San Francisco, CA 94104

.

Telephone: (415) 421-7100

Fac~e:(41S)421·7105

B~·----------~----~-----------------
Michael S. Davis (SBN 160045) LAW omCES OF 'MICHAELS. DAVIS 34S Hill Street San Francisc», CA Telephone: (41~ 282-4315 Facsimile: (41S) 358·5576

B~·--------..----------------------------
43

Case 3:03-cv-0285J8 Document ~21 Filed 03/tDS/2007 Page 56 of 58

1 Kelly M. Dermody (SBN 171716)

2

Daniel E. Barenbaum (SBN 209261)

LIEFF, CABRASER, HEIMANN &

3

BERNSTEIN, LLP

4

275 Battery Street, 30th Floor San Francisco, CA 94111-3339

5

Telephone: (415) 956-1000

Facsimile: (415) 956-1008

6

7

By:_ _ _ _ _ _ _ _ _ _ _ _ __

8

John L. Burris (SBN 69888)

9

LAW OFFICES OF JOHN L. BURRIS

7677 Oakport Street, Suite 1120

10

Oakland, CA 94612

Telephone: (510) 839-5200 ext. 67

11

Facsimile; (510) 839-3882

12

13

By:_ _ _ _ _ _ _----,_ _ _ _ __

John L. Burris

14

Todd M. Schneider (SBN 158253)

15

Guy B. Wallace (SBN 176151)

16

Joshua Konecky (SBN 182897)

SCHNEIDER & WALLACE

17

180 Montgomery Street, Suite 2000

San Francisco, CA 94104

18

Telephone: (415) 421-7100

19

Facsimile: 415) 421-7105

20 21 22 Dated: April __, 2007 23 24 25 26 27 28

MichaelS. Davis (SBN 160045) LAW OFFICES OF MICHAEL S. DAVIS 345 Hill Street San Francisco, CA Telephone: (415) 282-4315 Facsimile: (415) 358-5576
By:_ _ _ _ _ _ _ _ _ _ _ _ __ MichaelS. Davis

48
[PROPOSED] CONSENT DECREE- CASE NO.: C03-2659 SI; C 03-2878 SI

Case 3:03-cv-028558 Document 321 Filed 03/tDS/2007 Page 57 of 58

9 . 1 Dated: April

2007

2

3

4

5

6

7

8

Jeana M. Littrell
Frederick L. Douglas
FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road, Bldg. B, 3rd Floor Memphis, 1N 38125-8800 Telephone: (901) 434-8519
Facsimi~l) 434-92"J.t----
By: ~c.e
Attorneys for the Defendant

9
IT IS SO ORDERED.
10

11

Signed:,_ _ _ _ _ _ _ _ _ _ _ __ Dated:._ _ _ _ _ _ __

12

The Hon. Susan Illston

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27
28

50
[PROPOSED) CONSENT DECREE- CASE NO.: C03-26S9 Sl; C 03·2878 Sl

Case 3:03-cv-0285J8 Document ~21 Filed 03/tDS/2007 Page 58 of 58

1 Dated: April ___, 2007
2
3 4
5

Jeana M. Littrell Frederick L. Douglas FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road, Bldg. B, 3rd Floor Memphis, TN 38125-8800 Telephone: (901) 434-8519 Facsimile: (901) 434-9271

6

By:_ _ _ _ _ _ _ _ _ _ _ _ __

7

8

Attorneys for the Defendant

9

IT IS SO ORDERED.

10 11

Signed:__(~ -=1--....:.........:o___.==\-~ -=---·-=~:......._..;'-----

8/15/07 Dated: _ _ _ _ _ _ __

12

The Hon. Susan Illston

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

50
Dl CONSENT DECREE- CASE NO.: C03-2659 SI; C 03-2878 SI

Exhibit 1 Part2

Satchell v. FedEx Express Consent Decree Appendices
Appendix A: COMATs for FedEx Express Domestic Ground Operations (DGO) and Air Ground Freight Services (AGFS) within Western Region within Class period. (pg. 8 of Consent Decree)- FedEx Express will provide.
Appendix B: FedEx Express People Manual Policy 4-15 (pg 18)- attached
Appendix C: FedEx Express People Manual Policy 2-5 (pg 22)- attached
Appendix D: FedEx Express People Manual Policy 2-50 (pg 23)- attached
Appendix E: FedEx Express People Manual Policy 5-5 (pg 23)- attached
Appendix F: List of 18 class members who signed a declaration and were deposed by FedEx Express and will receive a service award (pg 36) - attached
Appendix G: Class Counsel hourly rate schedule (pg 47) - attached

Appendix A

Usting of Relevan·t Comats

COmat
591010000 592010000 593010000 593300000 594010000 594010001 594010002 594170000 594570000 595010000 596010000 597010000 597010002 597140000
598020000
598400000 599010000 799020000 799060000 799060001 799060002
799250000
799250001 799250002 799360000 800020000 800110000 801100000 801110000
801110001
801110002 801120000 801120001 801120002 801200000 802160001 802390000" 802390001 802490000 802490001 803010000 804770000 804770001 804980000 805240000 805250000 806310000 807510000 808280000

Comat Description
BILAIBILLINGS, MT GTFRDIWOLF POINT, MT BILRAIMILES CITY, MT BILDAIGLENDJVE, MT GTFA/GREAT FALLS, MT GTFRJGREAT FALLS, MT GTFRIGREAT FALLS, MT GTFRDIBROWNING, MT GTFRA/LEWISTO\IVN, MT GTFRBIHAVRE, MT HLNNHELENA, MT BlMSIBUTIE, MT BTMNBUTIE,MT BZNAIBELGRADE. MT MSOAIMISSOULA, MT MSODAIHAMILTON, MT
FCAAIKALISPELL, MT
ELPKIEL PASO, TX ELPIEL PASO, TX ELPRIEL PASO, TX UVANEL PASO, TX ELP/EL PASO, TX ELPRIEL PASO, TX ELPAIEL PASO, TX ELPKAIEL PASO, TX WHHAIARVADA, CO DENRT/AURORA, CO BJCAIENGLEWOOD, CO APAC/GREENWOOD VILLAGE ·
AP~ENGUSNOOD,CO
APAHO/GREENWOOD VILLAG APANENGLEWOOD, CO APAWRIENGLEWOOD, CO APAICENTENNIAL, CO BJCA!l.lffiETON, CO BKFA/DENVER, CO BKFCIOENVER, CO DENA/DENVER, CO DENRIDENVER, CO DENMX/DENVER,CO FNLNBOULDER, CO SBSA/STEAMBOAT SPRINGS SBSA/STEAMBOAT SPRINGS EGEAISILVERTHORNE, CO FTCC/FORT COLUNS, CO FTCBIFORT COLLIN$, CO GXYA/GREELEY, CO DENRAISTERLING, CO DENRB/LIMON, CO
Page I

Listing of Relevant Comats

Comat
809160000 809190000 809190001
810080000
810520000
810820000
811010000
811470000
812010000 812300000 813010000 814010000
815060000
815060002 816210000 816310000
820010000
820700000
824140000
825010000
826010000 826040000 827180000 828010000 829010000 829310000
829410000
830010000 831270000 832010000 832260000 832540000 833010000 833330000 834020000 834670000 835010001 835300000 836060000 836380000 836470000 837050000 837050001 838140000
8~150000
840320000
840470000
840570000 840780000

Comat Description
COSR/COLORADO SPRINGS,
COSSD~lORADOSPruNGS
COSA/COLORADO SPRINGS, PUBAIPUEBLO, CO PUBRCJLAMAR,CO PUBRBITRINIDAD, CO PUBRAIALAMOSA, CO DRODNPAGOSA SPRINGS, PUBRD/SALIDA, CO MTJDAIGUNNISON, CO DROAIDURANGO, CO MTJAIMONTROSE. CO GJTAIGRAND JUNCTION, C
GJTRIGRAND JUNCTION, C
ASEAIBASALT, CO GWSAIEAGLE, CO CYSNCHEYENNE, W'f CYSDNLARAMIE, WY RIWDNCODY, WY RIWAIRNERTON, WY · CPRAICASPER, WY CPRRICASPER, W'f GCCNGILLETTE, WY SHRAISHERIDAN, W'f RKSA/ROCK SPRINGS, WY SLCREIEVANSTON, WV RKSDAIPINEDALE. W'f JACAIJACKSON HOLE, WY JACDAITHAYNE, WY PIHAIPOCATELLO, ID IDADBICHALUS, 10 PIHDAIMONTPEUER, 10 TWFAITWIN FALLS, ID $UNA/HAILEY, 10 IDAA/IDAHO FALLS, 10 IDAOAISALMON, 10 LWSAILEWISTON, 10 l\NSRNGRANGEVILLE, ID
BOIDBICALDVVELL.ID BOJDC/MC CALL, 10 BOlDA/MOUNTAlN HOME, I BONMXIBOlSE, JD BOlA/BOISE, ID COEA/COEUR D'ALENE, JD COEA/COEUR D'ALENE, 10 SLCRBIHEBER CITY I UT BTFHOIMIDVALE, UT PVUA/OREM, UT SLCRANERNAL, UT
Page2

-
Usting of Relevant Comats

Comat
841010000 841040000 841170000 841190000 841220000 841220002 843210000 844050000 845010000 845320000 846480000 847010000 847200000 847410000 847700000 850180000 850310000 850340000
850340001
850340002 850430001
.852040000
852540000 852570000 852810000 852810001 852810003 852820000 852820001 852840000 853640000 855410000
855460000 856350000 857060000 857060001 857140000 857140001 859010000
860010000
863140000
863220000
864010000 864030000 864290000 871060000 871060001 871070000 871070001

Comat Description
SLCCISALT LAKE CllY, U SLCRTISALT LAKE CITY, BTFKISALT LAKE CITY, U BTFNWEST VALLEY CllY, SLCAISALT LAKE CITY, U SLCRISALT LAKE CITY, U LGUDAILOGAN, UT OGDAIOGDEN, UT PVURCIPRICE, UT CNYAIMOAB, UT PVUDBJNEPHI, UT PVURBJRICHFIELD, UT CDCNCEDAR CITY, UT SGUDBIKANAB, UT SGUAIST GEORGE, UT ZSYA/PHOENIX. AZ. LUFAIPHOENIX, f\Z.. PHXRCJPHOENIX, AZ. PHXRJPHOENlX, AZ. PHX/PHOENIX, AZ. PHX/PHOENIX, AZ MSCHQJMESA, AZ SCFB/SCOTTSOALE, AZ. SCF/SCOTISDALE, AZ
DGLNTEMPE, /¥.
PHXNTEMPE, AZ DGLAfTEMPE, AZ MSCBITEMPE, AZ. MSCHQfTEMPE, AZ. MSCAITEMPE, 1\Z. YUMAIYUMA. AZ PAYRD/PAYSON, AZ AVWOOISAFFORD, AZ. AVWAISIERRA VISTA, AZ TUSAITUCSON, AZ TUSRmJCSON, AZ. TUSAITUCSON, AZ TUSAITUCSON, 1\Z. PHXRB/SHOW LOW, AZ FLGAIFLAGSTAFF,AZ PRCAIPRESCOTIVALLEY, FLGDAICAMP VERDE, AZ. LHURAIKINGMAN, IV. LHUM.AKE HAVASU CITY, IFPAIBUUHEAD CITY, AZ ABQRIAI.BUQUERQUE, NM
AB~ALBUQUERQUE,NM
ABCVVALBUQUERQUE,NM ABQNALBUQUERQUE, NM
Page3

Listing of Relevant Comats

Comat
873010000 874010000 874010001 875010000
875050000
880050000
890300000
890490000
891090000 891190000 893010000 894060000 894310000
894450000 894490000
895020000 895020001 695020002 897010000 898010000 900070000
900070001
900100000
900100001
900120000
900170001
900170002 900170003
900210000
900240000 900280000 900340000
.900350000
900360000 900380000 900400001 900450000 900450001 900450009
900450011
900450016
900450020
.900450023
900450030
900450034
900450036 900450038 900450039
900450049

Comat Description
GUPAIGALLUP, NM FMNAIFARMINGTON, NM . FMNIFARMINGTON, NM SAFAJSAtrrA FE, NM SAFAISANTA FE, NM LRUAIL.AS CRUCES, NM VGTA/NORTH LAS VEGAS, VGTOAITONOPAH, NV LASRT/lAS VEGAS, NV LASAILAS VEGAS, NV SLCDIELY, NV RNODCIFALLON, NV RNOAISPARKS, WI
RNOD~NNEMUCCA,NV
CSNDA/STATELINE, NV RNORJRENO, NV RNOMXIRENO, NV RNOAIRENO, NV CSN/CARSON CITY, NV EKOAIELKO, NV SPOAILOS ANGELES, CA SPQHT/LOS ANGELES, CA SPQC/LOS ANGELES, CA SPQCILOS ANGELES, CA EMTM.OS ANGELES, CA EMTOILOS ANGELES, CA EMTBILOS ANGELES, CA EMTHQILOS ANGELES, CA EMTIEL MONTE. CA (DELETED) SMOBJLOS ANGELES, CA CVRD/HOLLYWOOD, CA CCDAICULVER CITY, CA
CCDT~OSANGELES,CA
CCDK'LOS ANGELES, CA CVRAIHOLLYWOOD, CA EMTJ/CITY OF COMMERCE, HHRBJLOS ANGELES, CA HHRBJI..OS ANGElES, CA LAXRIILOS ANGELES, CA LAXMX/LOS ANGELES, CA lAXAC/l..OS ANGELES, CA LAXMG/LOS ANGELES, CA LAXWSCIL()S ANGELES, CA lAX/lOS ANGELES, CA LAXTRILOS ANGELES, CA LAXPERILOS ANGELES, CA LAX/LOS ANGELES, CA LAXSRTILOS ANGELES, CA LAX/LOS ANGELES, CA
Page4

listing of Relevant Comats

Comat
90045006!$
900450068
900455202 900480001
900650000 900670000 900670002 900680000 900690000 900710001 900710002 900710003 900710004 900790000
902100001 902110000 902200000
902300000 902300001 902410000 902450000 902450003 902450004 902450008 902480000
902500000
902920000 903010000 903010060
904010000
904050000 905030000 906030000
906230000 906700000 907460000
907460001 908020000
908060000
908060001 906060002 910160000 911010000 911010001 911070000 912030000 913020000 913030000 913210000

Comat Description
LAX/LOS ANGELES, CA LAXVP/LOS ANGELES, CA LAXSST/LOS ANGELES, CA CCDSILOS ANGaES, CA JGXNLOS ANGB.ES, CA CCDCILOS ANGELES, CA CCDEILOS ANGELES, CA CVRCILOS ANGELES, CA CVRB/WEST HOLLYWOOD, C EMTEILOS ANGELES, CA EMTVLOS ANGELES, CA EMTH/LOS ANGELES, CA EMTFILOS ANGELES, CA EMTCILOS ANGELES, CA CCDD/BEVERLY HILLS, CA CCDH/BEVERLY HILLS, CA LAXRT/COMPTON, CA CCDICULVER CITY, CA SMOF/CULVER CITY, CA JDYKAIDOWNEY, CA HHRNELSEGUNDO,CA
HHR~LSEGUNDO,CA
LAXRCIEL SEGUNDO, CA L.AXBCIEL SEGUNDO, CA TOM/GARDENA, CA HHRAIHAWTHORNE, CA SMOAIMARINA DB. REY, C LAXRP/INGLEVv'OOO, CA LAXRTRNGLEWOOO, CA (DELETED) SMOCISANTA MONICA, CA SMOTA/SANTA MONfCA. CA TOACITORRANCE, CA JOYA/WHITTIER, CA JDYBII.A PALMA, CA JDYA/SANTA FE SPRINGS, TOATC/CARSON, CA TOAAIGARDENA, CA LGBBILONG BEACH, CA LGBM.ONG BEACH, CA LGBEILONG BEACH, CA LGBRILONG BEACH, CA JGXKIMONROVIA, CA JGXCIPASADENA, CA JGXKAIPASADENA, CA JGXTDIPASADENA. CA JGXBIGLENDALE, CA JSNB/CALABASAS, CA JSNAICANOGA PARK, CA VNYTAINEWHALL, CA
PageS

Usting of Relevant Comats

Co mat
913430000 913520000 913520001 913550000 913610000 913670000 914060000 914110000 914360000 915020000 915050001 915050002 916040000 916080000 917200000
917310000 917460000 917480000 917610000 917610001 917610003 917610004 917610005 920080000 920080001 920090000 920200000 920240000 920290000 920370000 920540000 920690000. 921010000 921010001 921020000 921020001 921080000 921080001 921100000 921100001 921100002 921210000 921210001 921210002 921230000 921230001 921270000
921280000 921540000

Comat Description
VNYAINORTH HILLS, CA BURAISUN VALLEY, CA BURB/SUN VALlEY, CA VNYBNALENCIA, CA SFRCJWESTLA.KE VILLAGE, SFRBMOODLANO HILLS, C VNYIWAN NUYS, CA VNYKNAN NUYS, CA VNYCJENCINO, CA BURK/BURBANK, CA BURS/BURBANK, CA BURCJBURBANK, CA BURKNSTUDIO CITY, CA BURHQ/UNIVERSAL CITY, ONTIBICORONA, CA POCBIEL MONTE, CA POCTA/CITY OF INDUSTRY POCAICITY OF INDUSTRY, ONTAIONTARIO, CA ONTTAIONTARIO, CA ONTRT/ONTARIO, CA ONTRIONTARIO, CA ONTCIONTARIO, CA CLDTAICARLSBAD,CA CLDA/CARLSBAD, CA CLDHQJCARLSBAD, CA MYFD/EL CAJON, CA CLDKIENCINITAS, CA CLDKAIESCONOIDO, CA MYFCJLA JOLLA, CA CLDBIOCEANSIDE, CA CLDAISAN MARCOS, CA SANA/SAN DIEGO, CA SANC/SAN DIEGO, CA SOMA/SAN DIEGO, CA SDMSISAN DIEGO, CA MYFB/SAN DIEGO, CA MYFK/SAN DIEGO, CA SANBISAN DIEGO, CA SANRISAN DIEGO, CA SANBJSAN DIEGO, CA MYFEISAN DIEGO, CA SANRT/SAN DIEGO, CA SANAI~AN DIEGO, CA MYFAISAN DIEGO, CA MYFTAISAN DIEGO, CA CLDHQ/SAN DIEGO, CA CLOTC/RANCHO BERNARDO, SDMBISAN DIEGO, CA
Page6

Listing of Relevant Comats

Comat
921730000
922250000
922510001 922620000 923760000
923920000
924080000 925900000 926120000 926140000 926140001 926140002 926180000 926180001 926210000 926260000 926260001 926300000 926310001 926410000 926410001 926470000 926480000 926490000 926530000 926600000 926600001 926600002 926750000 926800000
926880000
927050000 927070000 927150000 927180000
928060000
928310000 930300000 930650000
931050000 931170000 932400000
932noooo
933080000
934010002
934460000
934550000 935140000
935350000

Comat Description
SDMBIOTAY MESA, CA LHURB/BLYTHE, CA IPLAIIMPERIAL, CA PSPAIPALM SPRINGS, CA RIVA/RIALTO, CA DAGANJCTORVILLE, CA RIVBISAN BERNARDINO, C HMTAITEMECULA, CA APVA/IRVJNE, CA APVHQIIRVINE, CA SNABIIRVINE, CA APVKIIRVINE, CA NZJA/IRVINE, CA APVFIIRVINE, CA FULTA/BREA, CA NUC/COSTA MESA, CA NUCEJCOSTA MESA, CA APVB/El TORO, CA FUUVFULLERTON,CA LGBBIGAROEN GROVE, CA LGBCIGARDEN GROVE, CA JLBKIHUNTINGTON BEACH, NUCHQ/HUNTINGTON BEACH JLBA/HUNTINGTON BEACH, APVD/LAGUNA HILLS, CA NUCC/NE\t\'PORT BEACH, CA NUCD/NEWPORT BEACH, CA NUCHQ/NEWPORT BEACH: C APVE/SAN JUAN CAPISTRA SNAG/TUSTIN, CA NZJAJRANCHO SANTA MARG SNAA'SANTA ANA, CA SNARISANTA ANA, CA APVAIIRVINE, CA APVFnRVINE, CA FULBIANAHEIM, CA FULRC/FULLERTON, CA OXRNOXNARD, CA SFRKISIMI VALLEY, CA SBAK/SANTA BARBARA, CA SBAA/GOLETA, CA
BFLD~KEISABELLA,C
VISANISAUA, CA BFL.A/BAKERSFIELD, CA SBFWSAN LUIS OBISPO, SMXRAIPASO ROBLES, CA SMXAISANTA MARIA, CA fYKDA/BISHOP, CA WJFAILANCASTER, CA
Page7

Listing of Relevant Comats

Co mat
935500000 935550001 936120000 937270000
937270001 939400000
940100000 940250000 940250001
940400000
9406aoooo
940800001 940800002 940800003 940850000
940860000
940890000 ·940890001 941020000 941020001 941030000 941030001 941030002 941040000 941040001 941040002 941040003 941040004 941050000 941050001 941080000 941110000 941110001 941110002 941110003 941240001 941280000 941280002 943010000 943060000 944040000 944040001
944040007
945200000
945330000 945390000 945450000
945450001
.945530000

Comat Description
PMDIPALMOALE, CA IYKAIRIDGECREST, CA FATNCLOVIS, CA FATAIFRESNO, CA FATRT/FRESNO, CA
MRV~ONTEREY,CA
SQLC/BURliNGAME, CA PAOAIMENLO PARK, CA PAOAIMENLO PARK, CA COADIMOUNTAIN VIEW, CA PAOD/REDWOOD CITY, CA SQLAISOUTH SAN FRANCIS SQLLSISOUTH SAN FRANCI SQLA/SOUTH SAN FRANCIS COABISUNNYVALE, CA COABISUNNYVALE, CA
COAJVSUNNYVALE,CA
COAAISUNNYVALE,CA
SFO/SAN FRANCISCO, CA SFO/SAN FRANCISCO, CA
SFOAISAN FRANCISCO, CA NOB/SAN FRANCISCO, CA SFOMISAN FRANCISCO, CA JCCAISAN FRANCISCO, CA APCISAN FRANCISCO, CA JCCBISAN FRANCISCO, CA SFOG/SAN FRANCISCO, CA SFOO/SAN FRANCISCO, CA NDBI/SAN FRANCISCO, CA NDBBISAN FRANCISCO, CA
SFOUSAN FRANCISCO, CA
SFOCISAN FRANCISCO, CA SFOJ!SAN FRANCISCO, CA APCAJSAN FRANCISCO, CA SFOKISAN FRANCISCO, CA SFO.AJSAN FRANCISCO, CA SFORISAN FRANCISCO, CA JMCBAISAN FRANCISCO, C PAOG/PALO AI.TO, CA PAOBIPALO ALTO, CA SQLF/FOSTER CITY, CA SQLHQIFOSTER CITY, CA
SQLHQ/FOSTER CITY, CA
CCR/CONCORD, CA (DELETED) RHVTBIFAIRFIELD, CA HWDCIFREMONT, CA
HWOBIHAYWARO, CA
JCEAIHAYWARD, CA CCRNPACHECO,CA
PageS

Usting of Relevant Comats

Com at
945680000
945770000
945770001
945830000 945830001
945870000
945870001
945880000 945880001 945880002 945960001 946030000 946030001 946030002 946080000 946080001 946080002 946120000 946210000 946210001 946210002 946210003 946210004 946210005 946210006 946210007 946210008 949010000 949010001 949390000 949540000 950140000 950500000 950500001 950500002 950500003 950500004 950540001 950730000 951100000 951100001 951130000 951310000 951310001 951310002 952050000 952060000 . 952220000
953400000

Comat Description
LVKAIDUBUN, CA OAKRT/SAN LEANDRO, CA OAKSC/SAN LEANDRO, CA LVKHQ/SAN RAMON, CA LVKHOJSAN RAMON, CA HWDAIUNION CITY, CA HWDAIUNION CITY, CA LVKDIPLEASANTON, CA LVKBCIPLEASANTON, CA LVKNPLEASANTON,CA CCRBIWALNUT CREEK, CA OAKRT/OAKI..AND, CA OAKRSIOAKLAND, CA OAKRT/OAKLAND, CA JEMEIEMERYVILLE, CA JEMAIEMERYVJLLE, CA JEMEIEMERYVILLE, CA OAKBIOAKLAND, CA OAKAIOAKLAND, CA OAKHQ/OAKLAND, CA OAKH/OAKLAND, CA OAKH/OAKLAND, CA OAKRIOAKLAND, CA OAKIP/OAKLAND, CA OAKREIOAKLAND, CA OAKREIOAKI.AND, CA OAKAIOAKLAND,CA SRFAISAN RAFAEL, CA SRFAISAN RAFAEL, CA SRFBIL.ARKSPUR, CA NOTA/PETALUMA, CA COACICUPERTINO, CA
SJCC/SANTA CLARA. CA
SJCAISANTA CLARA, CA SJCRT/SANTA CLARA, CA SJCRT/SANTA CLARA, CA SJCAISANTA CLARA, CA COAEISANTA CLARA, CA SRUAISOQUEL, CA SJCH/SAN JOSE, CA SJCRISAN JOSE, CA . SJCGISAN JOSE, CA RHVA/SAN JOSE, CA SJCBAISAN JOSE, CA Rt-NA/SAN JOSE, CA SCKAISTOCKTON, CA SCKAISTOCKTON, CA SCKRNANGELS CAMP, CA MCENMERCEO, CA
Page9

Listing of Relevant Comats

Comat
953510000 953510001 953700000 954030000 954820000 955010001 955310000 956280000 956700000 956780000
957650000
958140000 956140001 958150000 958150001 958150002 958260000 '958260002 958370000 958370001 958380000
958380001
959260001
959450000
959910000
960020000 960020001
960200000
960670000 960930000 960970000
~1010000
961300000
961600000 967200000 967320000 967320001 967400000 . 967610000
967660000 968190000 968190001 968190002
968250000
970050000 970310000 970620000 971030000 971380000

Comat Description
MODAJMODESTO, CA MODAJMOOESTO, CA MODRA/SONORA. CA STSAISANTA ROSA, CA UKINUKIAH, CA EKANEUREKA, CA CECNCRESCENT CITY, CA MHRBIFAIR OAKS, CA MHRAIRANCHO CORDOVA. C AUNNROCKUN, CA AUNNROCKUN, CA SMFWSACRAMENTO,CA
SMFRT~ENTO,CA
SMFRC/SACRAMENTO, CA SMF/SACRAMENTO, CA
SMF~SACRAMENTO,CA MHR~SAC~ENTO,CA
MHRHCUSACRAMENTO,CA
SMF~SACRAMENTO,CA
SMF/SACRAMENTO, CA SMFNSACRAMENTO,CA SMFD/SACRAMENTO,CA CICAICHICO, CA OVEAIGRASS VAUEY, CA MYVAIYUBA CITY, CA RDDNREODING, CA RDDBIREDDING, CA CICRNCHESTER, CA RODDA/MOUNT SHASTA, CA RDDAMIEAVERVILLE, CA RODDA/YREKA, CA
RDDD/ALTURAS, CA RNODAJSUSANVILLE. CA . RNODBfTRUCKEE, CA
ITOAIHILO, HI OGGAIKAHULUI, HI JHMNKAHULUI, HI KOANKAILUA KONA, HI JHMDAIIJ\HAINA, HI LIH/LIHUE, HI HNL.AIHONOLULU, HI HIKNHONOLULU, HI HNLRIHONOLULU, HI HNLRC/HONOLULU, HI HIOBIBEAVERTON, OR PDXDNHOOO RIVER, OR BNONTUALA11N, OR MRJDBIASTORIA, OR MRIDAISEASIDE, OR
Page 10

Listing of Relevant Comats

Comat
972040000 972040001 972170000 972170002 972180000 972180001 972180002 972230000 973020000
973330000
973650000 973670000 974020000 974390000 974590000
974700000 9747.70000
975040000 976030000 977010000 977200000 978010000 978450000 978500000 980040000 980040001 960040002 980050000 980050001 960210000 980290000
980320000
981010000 981010001 ·981040001 981040002 981080000 981080001 981080002 981090000 981340000
981580000 981580001 9822.30000 982260000
982330000
982450000 982500000 983620000

Comat Description
PDXBIPORTLAND, OR PDXCIPORTI.AND, OR MRIAIPORTtAND, OR MRJBIPORTI.AND, OR PDXAIPORTLAND. OR LOGA/PORTLAND, OR PDXRIPORTLAND, OR HIOAITJGARD, OR
SLEAISALEM, OR
CVOA/CORVAL.LIS, OR CVODBINEWPORT, OR SLEDAILINCOLN CllY, OR EUGA/EUGENE, OR
EUGD~LORENCE,OR OTHD~RTHBEND,OR
RBGAIROSEBURG, OR EUGAISPRINGFIELD, OR MFRAIMEDFORD, OR LMT/KLAMATH FALLS, OR RDMAIBEND, OR RDMRAIBURNS, OR PDTAIPENDLETON,OR RDMRB/JOHN DAY, OR PDTDAilA GRANDE, OR BVUHQ/BELLEVUE, WA BVUCIBELLEVUE, WA BVUHQJBELlEVUE, WA BVUTAIBELLEVUE, WA BVUAIBELlEVUE, WA PAEAIBOTHELL, WA BVUAASSAQUAH, WA SEAAIKENT, WA BABISEATILE, WA LKEKAISEAmE, WA BFID/SEATILE, WA BFIC/SEATILE, WA BFIAISEATILE, WA BFISISEATTLE, WA BFIA/SEAmE, WA BFIKISEATTLE, WA
LKEAJSEATTLE.~A
SEARISEAffiE, WA SEARTISEAffiE, WA PAEDA/ARLINGTON, WA BLIA/BELLINGHAM, WA ODWAIBURUNGTON, WA
FHR~TSOUND,WA
FHRDA/FRIDAY HARBOR, W CLMAIPORT ANGELES, WA
Pagell

Listing of Relevant Comats

Comat
983660000 984240000 985010001 985200000 966320000 988010000 988370000 988410000 989030000 991140000 991630000 992020000 992040000 992240000 993010000 995010000 995020000 995020001 995020002
995020003
995020008
gssnoooo
996030000 996110000 996150000 996540000 996640000 996860000 997010000 998010000 998350000 999010000

Comat Description
PWTAIPORT ORCHARD, WA TCMAIT'ACOMA. WA OLMAIOLYMPIA, WA OLMRC/ABERDEEN, WA LOGDAILONGVIEW, WA EATAIEAST WENATCHEE, W MIMi/MOSES lAKE, WA OMKA/OMAK, WA YKMAIYAKIMA, WA GEGRBJCOLVILLE, WA LWSDBIPULLMAN, WA GEGAISPOKANE, WA GEGR/SPOKANE, WA GEGRJSPOKANE, WA PSCNPASCO, WA ANCHH/ANCHORAGE, AK ANCAIANCHORAGE, AK
ANCH~ANCHORAGE,AK
ANCFT/ANCHORAGE, AK ANCIP/ANCHORAGE, AJ< ANCRT/ANCHORAGE, AK BMXIEAGLE RIVER, AK HOMAIHOMER, AK ENAAIKENAI, AK ADQA/KOOJAK, AK 'INVAAIWASILLA, AK SWOA/SSNAR.D, AK VDZNVALDEZ, AK FAIAIFAIRBANKS, AK JNUAIJUNEAU, AK JNUDCISITKA, AK JNUDCIKETCHIKAN, AK

Source: Data provided by FedEx Express.

Page 12

•

p

'

p

••

Appendix B

The People Manual
Policy Scope

25June2006

4-15 Career Opportunity 187

4-15 Career Opportunity
(Last Revised 24 July 2005)
FedEx Express provides career development opportunities to its employees by systematically informing them about position o!lenings throughout the Corporation. This policy supports the Company's peopl~first philosophy and encourages qualified employees to seek open positions. All permanent FedEx Express employees in the United States and Puerto Rico. Employees who are covered by Corporate-approved handbooks and standard operating procedures should refer to those guidelines.

NOTE:

Information addressing movement between FedEx companies is available in the e-mail bulletin board POLICY~CURRENT-QA, Inter-Company Movement. It is also available on the FedEx Intranet at http:// hronline.corp .fedex.comljobaidslee_intercompany.shtml .

Guidelines

General

FedEx Express believes that the Company's work force is a viable recruitment source. Accordingly, FedEx Express is committed to filling open positions, whenever possible, with qualified candidates from within its workforce.

Affinnative Action/Equal Opportunity

Affirmative Action Plan goals are to be used as guidelines to ensure that the Company is making sufficient efforts to recruit minorities and females in order to increase the diversity of available qualified

candidates seeking positions.

·

All considerations that affect selections are made without regard to race, color, religion, sex, sexual orientation, national origin, citizenship., handicap, status as a Vietnam-era or special disabled veteran, or age (except for bona fide occupational qualifications). Selection for positions under this policy is based on job requirements reflecting those qualifications as outlined in Corporate job descriptions.

(

Definitions (For Purposes of this Policy)

aD.eCpoarprtomraetnet.ofAficlleer.mTphloisyedeefginriotiuopnsawpoprlikeisngunulnedsserthaemseemniboerrdoivfimsioannahgeeamd,ewntitwh hthoereappoprrtosvdailreocf ttlhyeto matrix Human Resources managing director, defines the term differently.

Lateral Transfers. MovementJrom one job in a general job classification to another job in the same general job classification, in another location, department, or station within the same division (e.g. courier to courier, manager to manager).

Managing Director Positions

When managing director positions are of the Corporation. These officers and candidate recommendations in writing

available, notification is sent to the officers and managing directors managing directors nonnally have 10 calendar days to submit to the recruiting Human Resources manager. Managing director

positions may also be posted on the Career Opportunity Posting at the hiring officer's discretion.

Career Opportunity Posting Time Requirements

All properly authorized requests for Career Opportunity Postings must be received by Employment Services, Human Resources Division/MEM, by noon on Tuesday to ensure that the position appears on the weekly <:areer Opportunity Posting. No additions or changes are made in the announcement after noon on Tuesday. .

REFER TO the.Personnel Requisition Approval Procedure contained in the The Profit Manual for additional information.

Posting Requirements

All replacemer:~ts, additions, and new permanent positions must be posted on the Career Opportunities Posting unless local posting is a)Jthorized in the Local Department/Station Posting guideline or a posting exception is approved.

Posting Exceptions

Corporatewide posting is not required in the following instances if the appropriate matrix Human Resources manager approves the exception:
The position is a managing director or above position. The position opening is filled by laterally transferring a salaried employee in the same job title, grade, and status (full-time or part-time) within the division or an hourly employee in the same job title, grade, and status (full-time or part-time) in the same department/station. The resulting vacated position must be posted .

I .

PeopleManual06- 207

188 · Section 4: Employment and Selection Systems

25 June 2006

The People Manual

The position results from a reorganization with no additional head count and is filled by an employee who meets or exceeds the position requirements for a lateral transfer, downbid, or demotion_ The placement should not result in a promotion.
The position is filled by an employee who has been affected by 4-75 Staffing Effectiveness.
The position is filled by an incumpent in a management position who is required or elects to step down from a managerial position.
Forecasting procedures are used.
External recruitment is necessary to alleviate significant underutilization of minorities and/or females, as determined by the Corporation's Equal Employment Opportunity staff and legal Department
Another position opens that reports to the same departtnent, at the same location, and that has the same job title as a position previously posted within the preceding 12 weeks. In this case, the hiring manager may either post the new position or make a selection from the previously screened and qualified internal applicants. If no one applied for the previously posted position, or there were no qualified internal applicants, the hiring manager may either post the new position or recruit internally and/or externally for the new position. The manager should note the recruitment method to be used on the Human Resources Requisition.

NOTE:

Positions posted in JCATs do not require an exception form. JCAJOB (a JCATs screen) is programmed to automatically select as long as the selection or approved Position Control Number (PCN) is within a 12-week period.

. I

LocaiDepanunenVS~tion

·

Posting

General Eligibility Criteria

If an original position remains open and there are no qualified applicants in the original pool of candidates, the manager may repast or recruit internally/externally. Position is filled in accordance with 1-6 Leave of Absence (Medicai)-ExempVNonexempt Salaried or 1-8 leave of Absence CMedicai>--Merit Hourly in support of the Human Capital Management Program (HCMP).
·The chief executive officer (CEO) or chief human resources officer (CHRO) may waive the requirement to post or route requests in order to support special Corporate programs (e.g., placement of returning expatriates) or to meet critical operational needs as approved;
A local department/station posting may be used rather than Corporatewide posting under any of the following conditions:
Actu;;!l departmental work experience is specified as a minimum requirement on the Position Description.
The position is filled through the approved normal line of progression within the department (e.g., Treasury Agent Ill, Treasury Agent IV).
A divisional staffing agreement has been approved to upgrade the status of part-time employees to full-time in the same jof? group classification within a specified ratio to balance the workload among existing employees, with no addition to head count · The position opening is filled by laterally transferring a salaried employee within the department in the same grade for career development purposes. The resulting vacated position must be posted Corporatewide,
A departmental reorganization or work realignment occurs.
Application procedures and eligibility requirements are the same for departmental and Corporatewide postings to ensure proper documentation of selection decisions.
Employees applying for or recruited internally for posted career opportunities and/or open positions must meet the following criteria by the end of the application period.
The general criteria are as follows:
Employees are limited to two active JCAs except under the following circumstances: applications for forecast postings applications solicited through internal recruitment
Employees with active warning letters based on a behavioral deficiency may not submit JCAs.
Employees with performance reminders may submit a JCA if the-noted problem areas are different from the requirements of the posted position .
REFER TO Manager's Responsibilities guideline of this policy_

PeopleManua106- 208

Appendix C

--,--.
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Library
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'Peih"'Hisw~
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8

The People Manual (USA)
Chapters

.-,2-5 Acceptable Conduct-4

(Last Revised 01 April 2007)

Policy

FedEx Express expects all employees to demonstrate the highest degree of integrity, responsibility, and professional conduct at all times.

Scope

All FedEx Express employees

Guidelines

General
All employees are FedEx Express representatives whether on or off duty. This is particular1y important for the employee to remember when wearing a Fed Ex Express badge or uniform.

Conduct Expectations

Acceptable conduct involves not only sincere respect for the rights and feelings

of others but the assurance that personal conduct in both business and. personal

life avoids any action that might (1) be harmful to the employee, other

employees, the Company, or (2) cause any unfavorable reaction from current or

potential customers.

·

Tape Recording Prohibited

Except for employees covered by a collective bargaining agreement, tape recording manager/employee conversations, meetings, or other interactions is prohibited unless approved and implemented by divisional guidelines (e.g., customer representative quality process), or the tape recording Is done by Security personnel in the course of a Security Investigation. Employees and managers are required to adhere to the .Kno recording" rule. Failure to adhere may be considered insubordination as outlined below.

Workplace Vjolence

Violent or threatening behavior is not tolerated in the workplace. All employees
are responsible for advising management, the Fed Ex Express Security Oepartmen~ Human Resources, or People Help of any actual or potentially serious or violent situations as stated in the Wor~pl~Uliolence guideline of 880 S~j;_y_f.{f;y.

Misconduct

... -c-- _.._ ....
FedEx Express requires a high degree of personal integrity and responsibility of its employees. Violations of Compafty or departmental rules may constitute misconduct for which an employee may be immediately suspended with pay, pending a complete inveStigation. All alleged violations should be thoroughly investigated and documented; Disciplinary decisions should be based on a logical analysis of the evidence.
Although the following list Is not all-inclusive, the following specific violations may result in severe disciplinary action up to and including termination for employees or dismissal for vendors. This list is not all-inclusive.
• Conviction of, or a plea of •no contesr to, a crime involving job-related conduct
• Fraudulent activities
• Repeated incidents of losing ID badges, possession of more than one 10 badge, a copy of an ID badge used to secure access to FedEx facilities, or failure to report a missing or stolen 10 badge
• Possession of more than one ID badge is a security violation that results in discipline up to and including termination for employees or dismissal for vendors.
• Theft, including unauthorized possession of Company or customer property or the property of other employees
• Failure to report an aircraft strike or ground damage
• Failure to report a vehicle accident or occurrence in accordance with 8·90 Vehicle Accidents/Occurrences and ~8 Driving Qualifications
• Disruptive conduct while on duty or while on Company property
• Insubordination or refusal to follow instructions or perform assigned work in a timely manner without valid reason
• Threatening, intimidating, coercing, directing abusive language, or displaying blatant or public disrespect toward any employee or customer while on duty, on Company ·property, at collection sites, or at off-site Com~ny meetings and functions
• Openly making or publishing false, vicious, or malicious statements concerning the Company, any employee, or customer
• Unprofessional or rude conduct towards any customer while on duty, or in FedEx Express uniform
• Fighting while on duty, at Company functions/Company property
• Damage, destruction, interruption of use, or defacement of Company property, facilities, information systems and applications, or equipment as a result of deliberate or negligent action

• Unauthorized use of Company facilities, assets, or systems, including but not limited to

o Personal use of COMAIL o Use of Company long distance telephone facilities for personal calls o Personal or other Improper use of the corporate name, proprietary
logo, or various trademarks

• Misuse of the Internet or Intranet or other violations of the lnfonnation Security Standards

• Violation of corporate safety regulations including
o Failure to wear/use protective equipment/devices when provided and/or required (e.g., seatbelts, safety shoes, ear and eye protection)
o Requiring or allowing subordinates to perform work activities in an unsafe manner or under unsafe and/or unhealthy conditions
o Failure to ensure subordinates attend required safety training

o Failure to have the driver~side sliding door or the bulkhead door closed when the vehicle is in motion
o Failure to have the passenger-side sliding door closed when the vehicle is moving with a passenger on board. The only times the passenger side door may be open is when the vehicle is in motion with no passenger, and when the vehicle is not in motion and is actually being loaded or unloaded.
• Violation of guidelines and policy for employee reduced-rate shipping, nonrevenue shipping, interline travel, or jumpseat privileges
• Wearing unauthorized badges, insignias, pins, or other devices while on duty or on Company property
• Solicitation or distribution in violation of i.Q:-6.5 S.Qlk!!~lJon_\ltDg Pi.$tdbmJqp

• Leadership failure of a member of management • Any other act obviously and significantly detrimental to the ·best Interest of
FedEx Express and/or fellow employees as determined by management

Discharge Offense

While result

any violation of the Acceptable Conduct policy could potentially in termination of employment. an employee normally will be dismissed

upon completion of an investigation confinning violations related to

· "·r--r--·

• Deliberate falsification of Company documents including but not limited to business reports, delivery records, timecards, benefits eligibility forms, expense reports and employment applications.
• Unauthorized possession of firearms or other dangerous weapons on Company property, as specified in 8-10 FJreannsiWeapons.
1'1. Termination for violating 8-10 Is normally warranted;
<..J however, lesser discipline may be iSsued in
extraordinary cases with approval of the vice
presidents of Legal, Security, and Human Resources. Requests for these approvals should be forwarded to the Employee Relations Department.
• Drugs and alcohol as specified In 2-10 Alcohol and Drug-Free Workplace.
r&. Employees who access the GFTP process upon
<.....1 termination for drugs or alcohol should proceed
directly to Step 2.
• Violation of the Confidentiality guideline for the survey questionnaire as specified in 5-70 Survey/Feedback/Action (SEA) Program.
rnvestigative/Discipllnary Suspensions
Investigative Suspension
Investigative suspensions provide time for management to further investigate a
violation. The employee receives pay w~ile on investigative suspension. Management should hold the employee's I. D. badge while the employee is on an investigative or disciplinary suspension. The employee receives notice of the suspension in writing. An Investigative suspension may be changed to a disciplinary suspension without pay as outlined in the Dlsclplinaf¥...S~pensio.n section below and in the WJ..t.lling_Lt~..r/
R~current Pa_tw..r.D.I. guideline.
r&. The Matrix HR Manager and Legal must be
<.....7 consulted before changing a paid suspension to an
unpaid suspension.
Investigative suspensions should be completed as soon as possible, normally within seven calendar days. The employee normally should be informed of the decision within seven calendar days of the completion of the investigation.
Disciplinary Suspension If a manager decides not to terminate an employee for a serious policy violation, the manager may issue a warning letter and a disciplinary suspension without pay. When appropriate, managers may change an ~nvestigatlve suspension to a disciplinary suspension without pay. Disciplinary suspensions are given only when they are deemed to be in the best interest of the Company and the infraction is of a severe nature. A disciplinary suspension must be in writing in the form of a warning letter outlining the reasons for the suspension and the applicable dates.
Documented Counselings

Even if management's investigation does not conclude that a policy violation has occurred that would warrant discipline such as a warning
letterJ disciplinary suspension or termination, management may choose to counsel the employee about acceptable conduct. When an employee
receives counseling, the manager shoufd enter the information into the Online Documented Compliment/Counseling (OLCC) system in PRISM. After Its entry, the employee must tog onto the Online Documented Compliment/Counseling Acknowledgment (OLCCACK) PRISM screen and verify his/her knowledge of the entry. If the empJoyee refuses to
acknowledge a counseling, a witness {another member of managementJ a
Human Resources representative, or a Human Resources manager) must immediately log onto the PRISM Online Documented Compliment/Counseling Acknowledgment (OKCCACK) system to witness the counseling. Managers have the option of issuing a separate written memo to assist in communicating expectations and to memorialize the discussion. However, counselings must be documented in the PRISM OLCC screen even if no separate written memo or synopsis of the discussion was prepared by the manager.
r&. Documented counselings are ineligible for the <....l GFTP process because they are not disciplinary
in nature. {See S.:-5.(;.Q.IJ:'~I)~~~t:! F.~ir.Tr:e~tment
Er.oce~urQ/_S.E.Q_Com..Q.Iaint erQ~t.§.i.)
A documented counsellngtOLCC entry Is not disciplinary in nature, but lt may be considered as a factor when determining whether discipline (i.e. warning letter; performance reminder, termination, etc.}, is warranted. It may also be considered when reviewing an employee's work history to identify patterns of conduct, perfonnance issues or recurrent problems.
Warning Letter/ Recurrent Patterns
.rl. All disciplinary actions normally should be initiated V within seven calendar qays of the conclusion of the
investigation.
warning Letter Based upon the results of the investigative suspension, management may return the employee to work and issue a warning letter as a means of discipline for the policy violation. See P.P~_l.!JJI'-.!!tiliP.n guideline and Figure 1. Sample Warning Letter. Warning letters serve as a notification of behavioral deficiency, and are active in PRISM and prohibit JCA/JCATS submissions for 12 months from the date a warning letter is issued. (This time period is adjusted forward for the number of days an employee $pends on a leave of absence.) Disciplinary Suspensions may be given when appropriate and must be outlined in a warning letter. See lmLEl~il~i.KiP.lina.JY­ Su~~Jl~lQ..O..$. guideline.
Recurrent Patterns Recurrent patterns of misconduct cannot be tolerated. Normally, a recurrent . pattern of misconduct consists of at least two occurrences of the same or similar conduct in the past 5 years. However, an employee's entire employment history is reviewed and taken into consideration when evaluating patterns of misconduct. Issuance of a warning letter for a deficiency which has been addressed previously through 2...S Acceptable Conduct can result in more severe action up through termination. However, progressive discipline is not required and issuance of a warning fetter is not a prerequisite for termination.

..

--c- .. "'".. .& ....

r&. IJ\Ihen an empfoyee receives a second deficiency V notification within 12 months (e.g., a warning letter
and/or performance reminder), the second deficiency notification should advise the employee that termination normally occurs If a third notification is received within a 12;.month period, regardless of the type of the third notification.
rl. A Decision Day is only initiated when the second <..J notification qualifies as a performance reminder.
(See 2--50 Performance lmprQ.~.[!'Ient)

Any time a third discipline/deficiency notification of any type, i.e., reminder or
warning letter, is entered in PRISM, an alert ·notify" will be sent to the
eRmespolouyrceees'srseepnreiosremntaantivaeg.eTr haned"nmoatinfya.gwinilgl addirveiscetotrhaantdthteheemmpaltoryixeHeuhmasanthree notifications, and the employee's history will be audited.
Tsrpbehheesoertiuueorllrddetms.cbiMeinneaiaptrtneeetarvdomgiefweiwntmhitaehretedionle.entBsn.ssaohHsttoihoefuiawdclndaeotvcitnoheonrtrneh,sseeaiodnsnfeeoedrvtmeitefhficiprecialtioyertiyenooelcnafeystti'hvswoeeeiftonhndctiaenicrtfeuuicarrieere1emn2oncp-fcmylaeowloylanmiintnthhefiernnapmtceahptriioil1oson2tdyos-emrnyefooomrrnmtahaylly disciplinary purposes.

Termination Option Exercised Failure to correct behavioral Management is responsible

deficiencies will for reviewing an

result in termination by the Company. employee's disciplinary record and

exercising judgment in determining appropriate action.

DischaTammrpgwaapeontrrAaoilxegvpviHepnerugalosmllvdoaatirefnlermmcRateionnsraaootguireorbcmneeseslonbmwtaasapneno~dasoagitniinmogmna.dtisrFiicrxoeorHcnptudoomurscsaitthniwooRnuheseldsnaobbtuehorevcceeoinsnmdssiauvtnalitdafefugdmai.nreghmodblidreesrcmatour,stthe

Termination Letters

REFER TO 4-90 Termination, Termination Letter
guideline.

TermindmIafeaatfiiiocnminteaaniOnncapyigt,tieptohrenecrmhNmoaooantsneEeansxgtleeynrroicnmtistauoesdddteipsprcaehrpatmargreeenaat/nswtraeittmtioepnnlofeiylxeep.elAawnnhaiotniofhonarmsofathtthiroeenercanotoioptnyifiacmlaeutiaosntndbseosfent to the matrix Human Resources manager.

Documentation
rdMeilasancteaipdgleitnomamerynistscsuohsnopduuelcdnts.ciAoolmnl npdoloetitcfeiuclyamtdieoonnctsusmo) sfehdnOetfaUiclllideanccctoiyonn(tias.eitn.a, kIwneafnornbrmyinmagtailoenntategserusmcahennadts

• date of Infraction • facts supporting the suspension, warning letter, reminder, andfor

- - ....

termination

• policy violated

• the warning letter must contain a reference to the employee's privilege to pursue the procedure in 5-5 G_ll.il{llO.t~~ Fair.Ir~a~_nt
E!r~J.J~IEEOC.omP.J.alot.Proe..es.s
Verification/Retention of Disciplinary Notifications
An employee's signature confirms receipt of any disciplinary letter. When an employ~ refuses to sign a disciplinary letter, a witness (preferably another manager) must confirm receipt or the receipt should be verified through some other means (e.g .• proof of delivery). The manager must

• retain all documents

• provide a copy to the employee and matrix Human Resources

representative

·

• foJWard a copy to the Human Resources Information Operations Support
(HRIS) for retention In the employee's personnel file

Criminal Charges
Employee Responsibility
All employees are responsible for immediately notifying their manager no later than the next day the employee is scheduled to work if they have been charged or indicted for any criminal (felony or misde·meanor) offense. This includes reporting driving violations and accidents as outlined in 4-48 Priving Qualifications and 8-90 Vehicle Accidents/Occurrences when your position is covered by these policies. However, when there is a resulting criminal charge
from an acciden~ all employees must report the charge. Failure to do so may
result in disciplinafY action, up to and including termination.

Management Responsibility/Employee Suspension
Upon notification that an employee has been charged or indicted for a criminal offense, management should immediately take the employee's written statement in order to begin an investigation. Once the written statement is received, management should obtain the employee's identification badge and place the employee on investigative suspension with pay so an investigation into the job· relatedness of the conduct underlying the criminal offense may be completed. With assistance from the matrix Human Resources representative, and the Security and Legal departments, management's investigation should include the employee's written statement, a copy of the arrest record or pollee report or any other official documentation, and witness statements (when applicable).
6' A written statement from the employee is not required if the employee is incarcerated.

Jncarceration FedEx Express does not allow employees time off for time spent in jail. If an

employee Is scheduled to work and calls in requesting time off while incarcerated, the employee should be considered as unavailable for work and appropriately disciplined, up to and including termination.

Job-Relatedness OeterminaUon/Procedure The crime's classification (i.e., felony or misdemeanor) is not as important an issue as the underlying conduct itself. For example, crimes that are related to illegal use and possession of drugs are considered job-related based on Corporate policy, regardless of whether the crime is classified as a felony or misdemeanor. However, a DUI charge in which an employee is in his private vehicle Is not job-related unless the individual holds a position that requires driving a Company vehicle. Crimes such as shoplifting and theft should be thoroughly evaluated for job-relatedness and discussed with the matrix Human Resources staff. Each charge must be considered on a case-by~ basis.
Ta.bfi..1. ou11ines the procedure to be followed when an employee has been charged or indicted for a criminal offense.
If it is determined that the conduct underlying the criminal offense is job-related, and the employee either admits to engaging in the conduct or the eVidence clear1y establishes the employee engaged in the conduct, the employee is disciplined or terminated as appropriate:

If it is determined that the conduct underlying the criminal offense is job-related,

but it cannot be concluded that the employee engaged in the conduct, then the

employee's paid suspension Is converted to a suspension without pay pending

resolution of the information that

charges will allow

against the employee or
management to make a

the acquisition of additional final decision. (See I!l~l~Lt.)

It Is the employee's responsibility to provide management with the

disposition/resolution of the criminal matter. If the criminal charges are not

resolved within proceeding will

18 be

months of the original charge, the reviewed by the manager, Human

status of the criminal Resources representative,

and the Legal Department to determine action to be taken regarding the

employee's employment status.

Table 1 Procedure When Employee Charged or Indicted for a Criminal Offense

Employee Manager

1. Immediately notifies manager no later than the next day the employee is scheduled to work following the indictment or charge.
2. Upon discovery of or upon notification by the employee of an indictment, or charge, suspends employee with pay so an investigation can be conducted to determine the job-relatedness of the conduct {See lny_~$tjg~Jlv_~Q!s!;.iP.Iin@!Y~~~nslo.n~ guideline.)
3. With Security, Human Resources, and Legal departments, conducts investigation.

a. If the conduct involved is determined to not be job-
related, returns employee to work.

b. If conduct Is determined to be job-related and it is not
known ifthe employee engaged in the conduc~ suspends

employee without pay pending resolution or mcire Information.

Management

c. If conduct is determined to be job-related and it is confirmed that the employee did engage in the conduct, disciplines or terminates the employee.
<" See QiiP.Oii.ti.9JL~nd EmR}_Qy.~!l.tiPay section below.

Disposition and Employment/Pay The disposition (conviction, "no contest" plea, acquittal, dismissal without prosecution or diversion) does not automatically determine whether an employee is retained or terminated. The decision to return the employee to active status or terminate depends upon the impact such disposition and the relevant facts have on other employees, the Company, and current or potential customers.
Suspended employees who are permitted to return to work after resolution of the charge may be entitled to back pay, not to exceed.a 90-day period. The issue of
back pay is determined at the officer level of the division and each case is reviewed individually. The decision to continue employment with the Company is made by management and matrix Human Resources upon consultation with the Legal Department The decision should be based on
• The severity of the charge • The employee's past work history • The relationship of the charge to the present job function • Other mitigating circumstances
Employment at Will
The employment relationship between the Company and any employee may be terminated at the will of either party as stated in the employment agreement signed upon application for employment. As described in that agreement, the policies and procedures set forth In this manual provide guidelines for management and employees during employment but do not create contractual rights regarding termination or otherwise.
Employee Response/Complaints
Any employee who feels he is the recipient of unwarranted discipline should discuss the problem informally with his manager andfor his matrix Human Resources staff, and/or use the procedure in S-5 G!!.~-~~.meect.E.air Tt~.atJ:JJ.q,o.t
~Jtd.w:elfi:~P~nlfr~.
Related Policies
• 1.-5 Medical Absence Pay-Exempt and Nonexempt Salaried and SteR

Progression • 1-6 Leave of Absence (Medicai)=Exempt/Nonexempt Salaried and
Step Progression • 1-7 Medical Absence Pay-Merit Hourly • 1-8 Leave of Absence fMedicai}-Merit Hourly • 1-20 Attendance • 1-45 Leave of Absence (Family) • 1-50 Leave of Absence (Militaryt • 1-55 Leave of Absence (Personal) • 2-10 Alcohol and Drug-Free Workplace • ~:~.O.P-9rformance lmproveme.raJ
• 2-70 Code of Business ConduCt
• 4-48 Driving Qualifications
• +90 Termination
• 7-35 Reduced-rate Shipping and FedEx Kinko's Discount • 7-47 J~mps.eat • 8-10 Firearms/Weapons • 8-30 Identification of Personnei
• 8-90 Vehicle Accidents/Occurrences
• 1P-$5 Solicitation and Distributio.n Related Publication
• The Profit Manual

• The Safetv Manual • The Information Security Standards

WARNING: This site containslnfonnation and procedures applicable only to employees of Federal
Express Corpor.llion (FedEx Express). Emproyeea of other affiliated FedEx companies should refer to the
sites applicable to their respective affiliated company.

~arch Online Librarv C..~g.!;_>LiiQIDJ'!. ReVision Highlights Contents Pub Info
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A product of HR Measurement and Support Your feedback is welcome.

QQJMigh! c 1981-2007, Federal Express Corporation unpublished. All rights reserved.
ISO 9001 controlled document. Contents subject to change.
Printed Blld other static repr&sentatiOns ofthis data are Classified
"for reference only.•

Appendix D

&aut~
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llftBR 9

The People Manual (USA)

Chapters

. '-.
;._,_

._2-50 Performance lmprovemenr-4

(Last Revised 01 April 2007) .

Policy
Fed Ex Express promotes open communication concerning job performance. The Company uses a system of progressive notification to employees to correct performance problems.
Scope
All permanent employees

Guidelines

Basic Policy Intent

Mutual Responsibility for Performance Goals

Management and employees are mutually responsible for attaining the highest possible level of performance.

Improvement of Perfonnance Problems

Employees are expected to correct per:tormance problems for the duration of

their employment, not just for a limited time as outlined in a performance planner

or reminder.

·

Differentiation from Acceptable Conduct Policy
FedEx Express establishes and maintains standards of employee conduct that are separate from the standards that govern job performance. Conduct covers behavioral actions, Whereas performance relates to the execution of assigned duties and responsibilities. Serious violation of Company or departmental rules may constitute misconduct for which an employee may be immediately
suspended pending a complete investigation:

REFER TO 2:6. A~gP-t~b.!-'LCo..o.d.Y.(!.1 for additional
information regarding infractions considered to be misconduct and
alternative management actions.

Mutual Responsibility

Management Responsibilities Management is responsible for

counseling, a witness (another member of management, a Human Resources representative, or a Human Resources manager) must immediately log onto the PRISM Online Documented Compliment/Counseling Acknowledgment (OLCCACK) system to witness the counseling.
/'&. Documented counsellings are ineligible for the GFTP
<...J process because they are not disciplinary In
nature. (See ~fj_Guaranteed Fair Treatment
fr.9~e_d.Yte~Q.~Q.OOP-.f~.ln.ti:'J'9.~.}
Evaluation of Problem/Action
Contributing Factors Before taking remedial action on an employee's performance problem, the manager should • Evaluate the appropriateness of orientation, training, or accommodations provided the employee.
• Review previous counseling sessions to determine if the employee
understood the nature of the deficiencies. • Ensure that the noted problems are not a result of some systemic failure
(e.g., toots·, equipment, scheduling, presaibed methods).
• Consult with the employee to determine if any reeent dramatic or traumatic
events occurred. Determination of Action
If it becomes apparent that the performance problem is not a result of any of the factors above, the following factors should be considered In determining appropriate action:
• severity of prOblem
• employee's previous work record • previous action for similar problems within workgroup • manager's judgment concerning actions most likely to change the
employee's performance.
EXAMPLE
Conducting performance reviews more than once every 6 or 12 months as required.
rl. Although it is not required, managers are urged to V consult with their matrix Human Resources staff
before taking action, particularly in unusual
· ·· r- -r•

circumstances. An objective review by an uninvolved staff consultant may reveal an inconsistency or other factors to be considered in the decision-making process.
Tools and Processes for Improving Performance
FedEx Express has Identified certain tools useful in improving performance. They do not have to occur in sequential order and can be used at the discretion of the manager at any time. The tool selected depends on the nature and severity of the perfOrmance problem.
Documented Counseling
This is an open discussion between the manager and the employee. The discussion's purpose is to
• identify a performance problem
• clarify managemenfs expectations
• determine possible solutions
• establish follow-up parameters
Managers must enter documented counselings into the PRISM OLCC screen and have the employee access the OLCCACK screen to enter a
verification. See P.Rl.S.M .Entri~$. .and Ve.rificaliQ.n., guidelines in this policy.
Option for Separate Written Memo
A written memo or synopsis of the discussion between the manager and the employee may be used to assist in communicating expectations and to memorialize the discussion. Counselings must be documented in the PRISM OLCC screen even if no separate written memo or synopsis of the discussion was prepared by the manager.
A documented counsellng/OLCC entry is not disciplinary in nature, but it may be considered as a factor when determining whether discipline (i.e., warning letter, performance reminder, termination, etc.) is warranted. It also may be considered when reviewing an employee's work history to identify patterns of conduct or performance issues or recurrent problems.
Reminders with Action Plans
A written disciplinary notification that is normally warranted when:
• there is a severe performance problem
or
• the same or similar performance problem has occurred on at feast two or more occasions within the last 12 months

.a· --- · -- -~- ,-----J9---- ---9

Management is expected any incident to determine

to review thoroughly the circumstances surrounding
whether a reminder is warranted. When evaluating a

performance issue, management may always reference an employee's past

performance.

When a reminder with an action plan is required, management must ensure

that the action plan is developed and documented jointly by the manager and

employee. See Figure 2.
employee's performance

The action pla'n problems. Once

should address all actions related to an
an employee receives a reminder, the

manager must conduct a performance review with the employee every 6 months

until the performance issue is resolved.

The reminder should include information such as:

• the date of performance problem or Incident

• the policy violated (a copy of the violated policy should be attached to the reminder)

• the facts supporting the performance problem • the action plan jointly developed to correct the problem.

• an established follow-up date
• the reminder must include a reference to employee's privilege to pursue the GFTP/EEO complaintprocess as documented in 5-:-S . GU.a.rant~'d F.lir
Iri'-.illtm.rt.nt P.ro.ce.d.u.re.Jfe.o .C..omp.!alo.tPr.o.~~'~
• see Figure 2 for a sample Performance Reminder with Action Plan
i&. All disciplinary actions should be initiated within V seven calendar days ofthe completion ofthe.
investigation.

The manager must • Retain an original of the reminder and action plan. • Provide a copy for the employee's Personnel file in the Human Resources lnfonnation Control Center (HRICC) in Memphis. . • Give copies to the employee and to the matrix Human Resources representative.
Reminder Active Period All reminders are active in PRISM and may prohibit Job Change Applications (JCAs)JJCATS submissions for 6 months from the date of Issue.
Impact on Job Change Applications Active reminders do not automatically prohibit an employee from submitting a

JCA if the skills required in the posted pOsition are different from the problem areas noted in the current position. The Company recognizes that an individual may lack specific technical skills required in one position but be able to perform well in a different position that requires different skills. Employees must
understand, however, that selection for open positions at Fed Ex Express is
highly competitive and performance problems may reduce their probability of being the successful candidate.
The employee must attach copies of any reminders received within the last 6 months to the JCA. A JCA must be submitted to ·the manager for a recommendation in compliance with 4-1~.~.l!¥.!i!t.0..P...P-Qrtunity. The manager should recommend the employee only when the skills in the posted position are different from performance problems noted in the active reminder.
EXAMPLE
A requirement such as attendance is common to all jobs, and employees with an active notification of this type of deficiency must not be recommended.
Impact on Perfonnance Review
If an employee has active formal discipline (warning letter or performance reminder) on file at the time of his performance review completion, this discipline should be reflected in the most appropriate category on the review. Under no circumstances should that associated performance review category be rated higher than satisfactory. Refer to 2-55 Performance Review (Individual Progress Discussion)
Performance Review as a Reminder
A less-than-satisfactory overall rating on the performance review serves as a reminder of a performance problem. The review itself should Include facts Identifying the performance problem, the action plan jointly developed to correct the problem, and an established follow-up date.
In addition, a less-than-satisfactory rating in any category may serve as the basis for a performance reminder and may require an agreed-upon action plan.
rl. When a performance review qualifies as a reminder, <...l it is entered and verified in PRISM as outlined in the
PRISM Entries and Verifications guideline of this policy. A less than satisfactory overall rating on the performance review automatically generates a Reminder Letter in PRISM.
Although permanent employees must have a performance review on a scheduled basis, reviews should be conducted more often when warranted. Managers can set an early review date for an employee in the PRISM Review screen by entering an employee's next review date in the "Next Perfonnance Review Due Date" field. Any date less than one year from the date of the last performance review entry will be accepted. PRISM will then notify the manager in advance of the employee's newly established review date.
i&. Issuance of a performance reminder for a deficiency V that has been addressed previously through 2.~..0
• -~~ /1!1-

Pe_rtormance fmgr_ovemtnt can result in more severe action up through termination of employment
All second disciplinary notifications (reminders or warning letters) should advise the employee that termination normally occurs if a third notification (regardless of the type of notification) is received within a 12-month period. ThiS language should be induded even if a decision day is not warranted.

Decision Day
A day off with pay granted to the employee to determine whether or not he desires to remain in the employment of FedEx Express. This type of performance
improvement action is normally warranted when an employee fails to show
improvement The manager should meet with the employee to review the situation to determine if a decision day Is appropriate.
If a decision day is necessary, it must be granted Immediately. A reminder
notification must be issued citing the employee's lack of improvement since the previous reminder and explaining the purpose and consequences of the decision day.
~ Decision days may be Initiated after two deficiency
<...l notifications, but only when the last notification
qualified as a performance reminder.

Table 1 Decision Day Conditions

Type of Deficiency Notification
Performance Reminder Warning Letter Performance Reminder
Warning Letter

Type of Deficiency Notification
Performance Reminder Performance Reminder Werning Letter
Warning Letter

Decision Day Conditions Met
Yes Yes No No

'Mien the performance problem Is job specific (e.g. driving), the employee, together with tile employee's manager, may consider an alternative position, in appropriate cases and where available, that does not require that specific skill. Personal Performance Agreement An employee who decides to remain with tile Company must present a written personal performance agreement acceptable to the.manager upon return from a decision day. The personal performance agreement outlines the commitment by the employee for performance improvement and a desire to continue employment. It should address the performance problems in a specific timeframe. This performance agreement must detail
o specific actions and timetables to overcome the deficiency o the employee's personal commitment to abide by that agreement

!'&. Management should ensure that the employee <..J understands what the agreement must contain. See
Figure 3 for a sample memo from the manager and Figure 4 for a sample personal performance

agreement

·

The manager must

• Retain an original of the decision day reminder and the personal performance agreement

• Provide a copy for the employee's Personnel file in the HRICC in Memphis.
• Give copies to the employee and to the matrix Human Resources representative.

Investigative Suspension

At managemenfs discretion, an employee may be suspended with pay to provide

additional time to conduct an investigation of the problem. Suspensions of this

type normally should not exceed seven ealendar days and should be completed

as soon decision

as possible. The employee normally should within seven calendar days of the completion

be informed of the of the investigation.

Any

resulting disciplinary actions normally should start within seven calendar days of

the investigation's completion.

Termination Criteria/Letters
Termination normally results upon receipt of

• three unsatisfactory performance reviews, or

• three performance reminders, or

• a combination of any type of notification (including warning letters for misconduct) totaling three within a 12-month period
Performance reminders do not have to relate to a common problem In order for
termination to occur.

r&. Anytime a third discipline/deficiency notification of <..J any type, i.e., reminder or warning letter, Is entered
in PRISM, an alert "notify" will be sent to the
employee's senior manager and managing director and the matrix Human Resources representative. The "notify" will advise that the employee has three notifications, and the employee's history will be audited.
Tennination Option Exercised

Failure to correct performance problems will result in either tennination or acceptance of a letter of resignation by mutual agreement Management is responsible for thoroughly reviewing an employee's work history and exercising judgment in determining appropriate action. Discharge based on performance problems normaUy is appropriate when a historical pattern of deficiencies exists. See Tennination Criteria/Letters guideline.
Approvals Required
For positions of managing director and below, two levels of management must approve all discharges for performance pmblems. Although it is not required, managers are urged to consult with their matrix Human Resources staff before taking action, particularly in unusual circumstances. For positions above managing director, prior consultation with the Human Resources managing director is also encouraged._
Termination Letters
REFER TO
Termination Option Not Exercised
If a manager chooses not to discharge an employee who has three notifications of defiCiency, the manager must prepare a written explanation of the rationale and maintain it in a department/station file. An information copy must be sent to the matrix Hum.an Resources Manager.
Regulatory Mandates
In unusual circumstances, other types of corrective action mandated by governmental agencies, such as the Federal Aviation Administration (FAA), may be imposed as a result of performance failures related to regulatory compliance.
Employment at Will
The employment relationship betWeen the Company and any employee may be terminated at the will of either party as stated in the employment agreement signed upon application for employment. As described in that agreement, the policies and procedures set forth in this manual provide guidelines for management and employees during employment but do not create contractual rights regarding termination or otherwise.
Complaint Process
Any employee who feels he is the recipient of unwarranted discipline should discuss the problem formally with his manager and/or matrix Human Resources
representative and/or use the ~:::.S.G_u.a~Jntee.d Fair IRatment Pr:ocedure/EEO
C.orop.I!U.ot~r.®_e.$$..
Related Policies
• 1-5 Medical Absence Pay===Exempt and Nonexempt Salaried and Step Progression
• 1-20 Attenda nee

• 1-45 Leave of Absence (Family) • 1-50 Leave of Absence (Military) • 1-55 Leave of Absence (Pe!'lonal)
• 2-10 Alcohol and Drug-Free Workplace • 2-55 Perfonnance Review (Individual Progress Discussion)
• 4-48 Driving Qualifications
• 4-90 Termination
• 8-85 Unsafe Acts/Worker Injuries • 8-90 Vehicle Accidents/Occurrences

WARNING: This site contains infonnatiol'l and procedures applicabl& only to employees of Federal Express Corporation (FedEx Express). Employees of other affiRated FedEx companies should refer to the sites appi'ICIIble to their respective affiKal$d company.

.S.~.~r:c!J Online Library FeeL~ Hom~ Revision Highlights Contents Pub Info
Ic;m I Prev I Nm

Search Th~ People Manual (USA):

§]

A product ofHR Measurement and Support Your feedback is welcome.

~ «> 1981-2007, Federal Express Corporation unpublished. AQ rights reserved .
JSO 9001 controlfed documenf. Contents subject to change.
Printed and other static representations ofthis dsts are classified 'for reference only."

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. ~ Cii))o(mnaabGYA82 Rtf~ ~1ab6M

Appendix E

FedEx Express (USA) Personnel Policy and Procedure Manual
June2006

Publication Number 5524

Before the next complete revision of this publication, infonnation may be updated through bulletins, e-mail, or other FedEx Express inedia. Users of printed publications are responsible for keeping track of change notifications issued between complete revisions. See Revision Highlights/What's New in Intranet publications for the latest updates. (See next page to learn how to access The People Manual online through
the FedEx Express Intranet.)
'\_· .·

The People Manual

25 June 2006

FedEx Express (USA) Personnel Policy and Procedure Manual . v ·

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The People Manual (USA)
Chapters
._ 5-5 Guaranteed Fair Treatment Procedure/EEO Complaint Process-4
(Last Revised 01 Apri12007)
Policy
Fed Ex Express provides a procedure for handling employee complaints, problems, concerns, and allegations of employment discrimination.
An employee's right to participate within the guidelines of the process is guaranteed, although the outcome is not ensured to be in the employee's favor.
Scope
AU permanent employees except employees represented by a collective
bargaining agreement
Guidelines
Eligibility
All employees who receive discipline, including termination, or treatment that they believe to be unfair are eligible to participate in the GFTP/EEO process.
Eligible Issues
Issues eligible for consideration in the GFTP/EEO process include the following:
• selections
• application of compensation and benefit policies
• disciplinary actions, including terminations
• performance reviews
• all allegations of discriminatory employment practices based on an employee's race, color, sex, sexual orientation, religion, national origin, age, physical or mental handicap/disability, or veteran status including all allegations of sexual harassment
• Discipline resulting from an EEO investigation may proceed directly to GFT Step 2. Step 2 is the final step for discipline resulting from an EEO investigation.

1'1. Vv'hen an employee adds an allegation of <...J discrimination or sexual harassment after entering
the GFTP process, the GFTP is deferred until allegations of employment discrimination are
resolved. The steps outlined in Iibltl should be
followed. If an employee receives discipline as a result of the EEO investigation, the employee may proceed to Step 2 of the GFT Procedure as outlined
in Il.b.."__i. Step 2 is the final step for discipline
resulting from an EEO investigation.
r&. Employees terminated for drug, alcohol, falsification <...J of the employment appHcation ·related to a criminal
event (arrest, conviction, etc.) or weapons violations should proceed to Step 2 of the GFTP process.
Ineligible Issues
Issues not eligible for consideration In the GFTPIEEO process are those seeking a change in or review of the following:
• work assignments
• hours of employment
• compensation rates and grade levels
• content of benefit policies
• content of Corporate policies and procedures
• decision to suspend with pay pending further investigation
• denial of a request for case review by the AccidenVOccurrence Appeals Board
• discipline initiated.by the Appeals Board
• documented counseling
• other issues defined as inappropriate by the Appeals Board
• clearance denial by the United States Postal Service for a position involving handling or access to U.S. mail and subsequent termination of a new hire because clearance was·denied.
• clearance denial of an internal applicant by the USPS for a position involving handling or access to U.S. mail.
/'&. Employees are permitted to utilize the GFTP process
<...J for resolution regarding work assignments that are
presumed to be unsafe or where no training has

been provided.
Initiating a GFTP (Nondiscrimination} Complaint
Active Employees
Employees who wish to initiate a complaint to resolve a concern unrelated to
alleged discrimination are possible with their immediate manager before entering the process.
If the complaint is with a member of management in another division, the employee is encouraged to have an open and frank discussion with a member of management In that division before entering the process.
If the discussion is unsatisfactory, the employee must submit an electronic GFTP request via the GFTPP screen In PRISM within 5 calendar days of the occurrence of the eligible issue. The complaint will be forwarded automatically at each step to the appropriate members of management and matrix human resources. (See Table 1_.)
EXCEPTION In situations where computer terminals are not available, employees may submit at each step a written complaint to the appropriate members of management, with a copy to the matrix Human Resources representative for entry Into the GFTPP monitoring and tracking system.
Terminated Employees.
At each step in the process, the appropriate GFTP bubble form and questionnaire for tenninated employees must be completed and forwarded to Fed EX Express, 3975 Airways, 2nd floor, Module E, HRIS-GFTP, Memphis, Tennessee 38116.
At each step in the process, all nondiscrimination complaints must be submitted within 5 calendar days of the occurrence of the eligible issues or receipt of GFTP response. (See Ta.bl.!3 ' .)
That division's chain of command should be followed throughout the process.
Benefits Related GFTP/EEO Process
When a GFT Is filed that Is related to benefits, (e.g., medical leave of absence) is not resolved at Step 2, Step 3 of the GFT process is delayed until resolution of the benefits issue through the benefits appeal process.
Steps in the GFTP/EEO Process
The GFTP/EEO process for nondiscrimination Issues Is a 3-step process that requires specific individuals to perform specific actions within a designated timeframe (see Ti.bJ~.1.). The steps in the GFTP process for non-discrimination issues are:

1. Management review 2. Officer review 3. Appeals Board
Appeals Board
Participants The Appeals Board consists of five management members.

The permanent members are:
1. the chief executive officer (CEO)
2. the executive vice president (EVP) and chief operating officer (COO) 3. the chief human resources officer (CHRO)

The rotating members are:
4. one senior vice president
5. one vice president

All permanent members should all be present at all Appeals Board meetings. Jf this is not possible, a permanent member is required to chair the board. Three members constitute a quorum.
In the absence of the CEO, the executive vice president and chief operating officer serves as chairman.
One senior vice president serves on the board on a 2-month rotation basis. The
senior vice president can delegate to a vice president for an absence.
One vice president also serves on a 2-month rotation basis. Vice presidents who are selected to serve must live in Memphis, and have been a vice president for 12 months. The selected vice president must find a replacement when unavailable to attend the Appeals Board meeting. This replacement must be a vice president or a senior vice president.
Final Decisions
Since the Appeals Board is the last step In the GFTP, all of its decisions are final and binding on the Company and the employee. However, no employee is prohibited from exercising his right to file a charge or participate in an administrative investigation or proceeding.
Administrator
The Appeals Board administrator is responsible for the administrative function of the Appeals Board. At the board's direction, the administrator has the authority to act on their behalf and to carry out their instructions and decisions. A member of management in the HR Compliance Department signs the letters as administrator of the Appeals Board.
All resolution disputes arising during the GFTP/EEO process are referred to the

··o-- ~- ~
Appeals Board administrator for evaluation and .final resolution by the Appeals Board. The Appeals Board administrator has the authority to remand cases to the lower levels for resolution.
Alternate Resolution Process
At the discretion of the Company, an Alternate Resolution Process may be used as part of the GFTP/EEO process in certain types of cases. For more information on the Alternate Resolution Process, contact your matrix Human Resources representative or the HR Compliance Department
Board of Review
The decision to initiate a Board of Review Is within the sole discretion of the
senior vice president/vice president at step 2 or the Appeals Board at step 3.
This Is not a formal step in the appeal process but is an option available to the senior vice president/vice president or the Appeals Board•
.r&. Discrimination and sexual harassment allegations <....:! are not eligible for consideration by a Board of
Review. If allegations of employment discrimination surface during a Board of Review, notify the Appeals Board administrator. The board can proceed on the fair treatment issues.
Participants. When initiated, a Board of Review is composed of
• a panel of five voting members • a chairperson (nonvoting}
• an HR Compliance representative (nonvoting)
• a representative of matrix Human Resources (nonvoting)
• the complainant {nonvoting)
• the manager (nonvoting)
• witnesses (nonvoting)
• observers (nonvoting) Observers must be FedEx Express employees. Their attendance at or removal from a Board of Review is at the chairperson's discretion. If an employee is granted a Board of Review and is not present for the Board of Review, the case is automatically forfeited unless it is rescheduled by HR Compliance due to extenuating circumstances. Management is also required to be present.

Final Decisions
The decision of a Board of Review Initiated at step 2 by a senior vice president may be appealed to the Appeals Board. However, the decision of a Board of Review initiated at step 3 by the Appeals Board may not be appealed. All Board of Review recommendations become final after confirmation by the Appeals Board.
For more information on the Board of Review process, contact the HR Compliance Department or the matrix Human Resources representative.
Initiating an Internal EEO Discrimination or Harassment Complaint
Employees who wish to initiate an employment discrimination or harassment complaint should discuss their concerns with a member of management, Human Resources, or HR Compliance. The employee will then receive an Employee Information Statement form to complete and return. All complaints will be promptly and thoroughly investigated in as confidential a manner as possible. If the complaint is submitted to a member of management, copies should be forwarded to the matrix Human Resources representative/management and HR Compliance within 46 hours.
Employees are protected by the. Company and federal statutes from coercion, intimidation, retaliation. interference, or discrimination for filing a complaint or assisting in a complaint FedEx Express specifically prohibits such action on ttle part of its management and other employees.
Before the resolution of any discrimination or harassment complaint, an employee may not be involuntarily transferred. reassigned, or subjected to any punitive action without concurrence of the matrix Human Resources management, HR Compliance, and the Legal Department
Steps in the GFTP/EEO Internal EEO Discrimination or Harassment Procedure
The employment internal EEO discrimination or harassment complaint procedure is a 1-step process that requires specific actions to be perfonned by specific individuals. See TJJ.ble 2..
Investigation Responsibilities.
An investigation is not initiated or discontinued without approval or concurrence from the Legal Department. An e"mail must be received from Legal before investigating or taking any disciplinary actions on all employment discrimination issues. The managing director may designate specific duties to matrix human resources andtor another member of management The managing director is responsible for the content of the report.and accountable for meeting the timeframes in the process.
Final Decisions
All decisions relating to employment discrimination complaints are final and binding on the Company and the employee.
For more information on the employment discrimination complaint process, contact the HR Compliance Department or the matrix Human Resources representative.

- - --r'~-- ~ ......,, .._ ""b""' t V.I. V

Exclusive Remedy
The GFTP/EEO process is the exclusive remedy for all disputes or work-related complaints arising from an employee's employment or termination from employmenl As described in the employment agreement signed upon application for employment. the poncles and procedures set forth by the Company provide guidelines for management and other employees during employment, but do not create contractual rights regarding termination or otherwise.

Maintaining Communication
Employees must keep management and HR Compliance advised of any change in their address or telephone number to maintain communication and timeliness throughout the GFTP/EEO process.

Confidential Communications/ Documents

All internal documents, including E-mails, investigative notes and materials

generated in the course of the GFTP/EEO process, including without limitation,

internal EEO and harassment investigations are confidential and subject to

various legal privileges against disclosure. Circulation, distribution, or of this information Is strictly limited to those who have a need to know

discussion
its content

Written or oral release of the contents of this information beyond this limited

circulation must be approved by the Legal Department

Third-party Representation
Attorneys are not permitted to serve as advocates on behalf of the Company or employees, nor to appear on behalf of employees or former employees or submit letters directly to the Company on behalf of employees or former employees in the GFTP/EEO process. Attorneys or other such representatives are directed to contact the legal Department No third party is permitted to participate in any manner in the GFTPIEEO procedure.

Related Policies

• 4-48 Driving Qualifications • 4-90 Termination • 5-15 External EEO Complaint Investigation • 5-35 Disabled Individuals • 5-40 Open Door • 5--55 Anti-Harassment

• 5-70 Survey/Feedback/Action (SFA) Program
• 8-90 Vehicle Accidents/Occurrences
Related Publications
• The Board of Review Manual
/'&. These manuals are maintained by the HR
<.....,;! Compliance Department.

WARNING: This Site contains infonnation and procedures applicable only to employees of Federal ExPfeSS CorporatiOn (Fed Ex Express). Employees Of other affiliated Fed Ex companieS should refer to the sites applicable to their respec6ve affifiated company.

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~ c 1981-2007, Federal Express Corporation
unpubr!Shed. All rights reserved.
ISO 9001 controlled document. Contents subject to change. Printed and other static representations ofthis dsts are classified
"for reference only. •

Appendix F

~ Cii))o(mnaabGYA82 Rtf~ ~514 Satchell v. Federal Express
Appendix F- Class Members Receiving a Service Award
Sheila Akins Virgil Banks Yolanda Canela Bonta P. Clarke Eric Foreman Maurice Griffin Janet Haynes Eric J. Hill Brett Hoiland Ingrid James Zeno Latin Venturi McCray Sr Mitchell McCoy Rose Moncrief Antonio Norris Rosalinda Olmos Beverly Patterson Mimi Steel

·Appendix G

~ .

~GYA62 Satchell v. Federal

Ail~ Express

~614

Appendix G - Class Counsel Hourly Rate Schedule

Altshuler Berzon LLP James M. Finberg - $700 Eve H. Cervantez - $550 Rebekah B. Evenson- $410 Danielle E. Leonard- $350 Claire P. Prestel- $325 Stuart Naifeh- $275

· Lieff, Cabraser, Heimann & Bernstein, LLP Kelly M. Dermody - $575 Daniel E. Barenbaum - $425

Law Offices of John L. Burris John L. Burris- $650

Law Offices of Kay McKenzie Parker Kay McKenzie Parker - $475

Law Offices of Waukeen McCoy · Waukeen McCoy - $525 Spencer Smith -$325 Aldon Bolanos -$325

Law Offices of Michael S. Davis Michael S. Davis - $525

Schneider and Wallace Todd Schneider- $525 Guy Wallace - $525 William Willson - $295 Nancy Park- $275
Barry Goldstein, of counsel to Goldstein, Demchak, Baller, Borgen & Dardarian Barry Goldstein - $600

 
 Satchell v. FedEx Exp., Not Reported in F.Supp.2d (2007)
2007 WL 2343904 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Derrick SATCHELL, et al., Plaintiffs, v.
FEDEX EXPRESS, Defendant.
Nos. C 03-2659 SI, C 03-2878 SI. | Aug. 14, 2007.
Attorneys and Law Firms
Guy Burton Wallace, Joshua Konecky, Sheryl Ivonne Harris, Todd Michael Schneider, Schneider & Wallace, Michael S. Davis, Law Offices of Michael S. Davis, Waukeen Quandrico McCoy, Law Offices of Waukeen Q. McCoy, Claire P. Prestel, Danielle Evelyn Leonard, Eve Hedy Cervantez, James M. Finberg, Rebekah B. Evenson, Chimene I. Keitner, Altshuler Berzon LLP, Daniel E. Barenbaum, Kelly M. Dermody, Lieff Cabraser Heimann & Bernstein, LLP, Elisa P. Laird, Finkelstein Thompson LLP, Lexi Joy Hazam, Esq., Lieff Global LLP, Kay Mckenzie Parker, Law Offices of Kay Mckenzie Parker, San Francisco, CA, Barry L. Goldstein, Goldstein Demchak & Baller, John L. Burris, Law Offices of John L. Burris Felicia C. Curran, Law Offices of John D. Winer, Oakland, CA, for Plaintiffs.
Cynthia J. Collins, Federal Express Corporation, Legal Department, David Andrew Billions, Fedex Express Corporation Litigation, Frederick L. Douglas, Sandra Colene Isom, Federal Express Corporation, Barak J. Babcock, Terrence O’Neal Reed, Memphis, TN, Gilmore F. Diekmann, Jr., Kamili Williams Dawson, Francis J. Ortman, III, Seyfarth Shaw LLP, George A. Riley, Tom A. Jerman, O’Melveny & Myers, David James Reis, Howard Rice Nemerovski Canady Falk & Rabkin, San Francisco, CA, for Defendant.
Opinion
ORDER GRANTING PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS AND EXPENSES
SUSAN ILLSTON, United States District Judge.
*1 On August 9, 2007, the Court held a hearing on plaintiffs’ motion for fees and costs. After consideration of the Consent Decree, plaintiffs’ motion and supporting declarations, and the proceedings in this action to date, the Court hereby GRANTS plaintiffs’ fee application and awards $12,425,000 in attorneys’ fees and $2,575,000 in costs and expenses. (Docket No. 738).
The parties to this class action lawsuit settled the action and entered into a proposed Consent Decree that provides for comprehensive injunctive and monetary relief for the class. The proposed Consent Decree also provides, inter alia, for an award of $15 million in attorneys’ fees and costs to class counsel. On April 13, 2007, this Court granted preliminary approval to the Consent Decree. The preliminary approval order directed that notice of the Consent Decree, including specific notice about the amount of attorneys’ fees and costs sought by class counsel, be provided to the class. The Court set a hearing for August 9, 2007, to determine whether the Court should grant final approval to the Consent Decree, and whether plaintiffs’ fee request should be granted. Prior to the August 9, 2007 fairness hearing, class counsel filed a motion in support of their fee and cost request. Plaintiffs’ motion was accompanied by declarations filed in camera setting forth detailed time records.1 No class member objected to the amount of attorneys’ fees and costs requested.
The Court finds that the amount requested in attorneys’ fees and costs, which defendant has agreed to pay as part of the settlement of this matter, is fair and reasonable under both the “lodestar” and the “common fund” methods. Class counsel’s reasonable lodestar amount exceeds the amount plaintiffs request in attorneys’ fees. Analyzed under the percentage method, the Court finds that the attorneys’ fees sought by plaintiffs are 22.6% of the total monetary recovery, which is under the Ninth Circuit’s 25% benchmark in common fund cases. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir.1998).
1

Satchell v. FedEx Exp., Not Reported in F.Supp.2d (2007)
As for costs and expenses, the Court finds that the reasonable costs and expenses actually incurred by class counsel in the prosecution of this case exceeds the amount sought for reimbursement.
Class counsel have informed the Court that they have agreed to an allocation of fees and costs amongst counsel. In accordance with counsel’s agreement, the Court hereby orders that the $15 million in fees and costs shall be awarded as follows:

Lieff, Cabraser, Heimann & Bernstein

$5,867,852.57

Schneider & Wallace

$3,462,704.53

Michael S. Davis

$2,364,838.92

Waukeen Q. McCoy

$1,070,000.00

Barry Goldstein

$718,980.00

Altshuler Berzon LLP

$708,860.86

John Burris

$448,580.93

Kay McKenzie Parker

$358,182.19

FedEx shall withhold $71,008.47 from its payment to class counsel in order to satisfy the lien filed by Angela Alioto & Angela Alioto Professional Law Corporation against Waukeen Q. McCoy and/or the Law Offices of Waukeen Q. McCoy. In making the allocation of the fee and costs award between counsel, class counsel shall deduct $71,008.47 from Mr. McCoy’s portion.
*2 IT IS SO ORDERED.

Footnotes

1

The Law Offices of Waukeen McCoy, one of the firms appointed as class counsel, originallyfiled a separate application for

attorneys’ fees and costs but has since notified the Court that it no longerseeks a ruling on that separate application, and instead

joins in plaintiffs’ application.

2

 
 Satchell v. Fedex Express, Not Reported in F.Supp.2d (2007)
2007 WL 3037714 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Derrick SATCHELL, et al., Plaintiffs, v.
FEDEX EXPRESS, Defendant.
Nos. C 03-2659 SI, C 03-2878 SI. | Oct. 17, 2007.
Attorneys and Law Firms
Guy Burton Wallace, Joshua Konecky, Sheryl Ivonne Harris, Todd Michael Schneider, Schneider & Wallace, Michael S. Davis, Law Offices of Michael S. Davis, Waukeen Quandrico McCoy, Law Offices of Waukeen Q. McCoy, Claire P. Prestel, Danielle Evelyn Leonard, Eve Hedy Cervantez, James M. Finberg, Rebekah B. Evenson, Chimene I. Keitner, Altshuler Berzon LLP, Daniel E. Barenbaum, Kelly M. Dermody, Lieff Cabraser Heimann & Bernstein LLP, Elisa P. Laird, Finkelstein Thompson LLP, Lexi Joy Hazam, Esq., Lieff Global LLP, Kay McKenzie Parker, Law Offices of Kay McKenzie Parker, San Francisco, CA, Barry L. Goldstein, Goldstein Demchak & Baller, John L. Burris, Law Offices of John L. Burris, Oakland, CA, for Plaintiffs.
Gilmore F. Diekmann, Jr., Kamili Williams Dawson, Francis J. Ortman, III, Seyfarth Shaw LLP, George A. Riley, Tom A. Jerman, O‘Melveny & Myers LLP, David James Reis, Howard Rice Nemerovski Canady Falk & Rabkin, San Francisco, CA, Barak J. Babcock, Cynthia J. Collins, Federal Express Corporation, Legal Department, David Andrew Billions, Fedex Express Corporation, Litigation, Frederick L. Douglas, Sandra Colene Isom, Federal Express Corporation, Terrence O’Neal Reed, Memphis, TN, for Defendant.
Opinion
ORDER DIRECTING DEFENDANT TO PAY LIEN
SUSAN ILLSTON, United States District Judge.
*1 By order filed August 14, 2007, the Court granted plaintiffs’ motion for attorneys’ fees and costs. The Court also ordered defendant to withhold $71,008.47 from its payment to class counsel “in order to satisfy the lien filed by Angela Alioto & Alioto Professional Law Corporation against Waukeen W. McCoy and/or the Law Offices of Waukeen Q. McCoy.”
In a letter dated October 3, 2007, defendant requests clarification from the Court regarding defendant’s obligation with respect to the lien. Defendant reports, and the correspondence attached to defendant’s letter reflects, that Mr. McCoy and the Alioto firm have taken different positions with regard to the disposition of the lien. According to e-mails attached to defendant’s letter, Mr. McCoy asserts that defendant should not dispurse any funds to the Alioto firm until he “works out the amount with Ms. Alioto,” while the Alioto firm contends that defendant should immediately distribute the monies to the firm. The Alioto firm has also filed a letter dated October 5, 2007, reiterating its position.
Based on the record before the Court, the Court finds no reason why defendant should not immediately disburse the $71,008.47 to the Alioto firm in satisfaction of the lien. If Mr. McCoy wished to contest the disbursement of the monies, he could have done so at any time since the Court’s August 14, 2007 order; he has not. The Court further notes that Mr. McCoy did not file a response to the recent letters filed by defendant or the Alioto firm regarding the lien. Finally, there is no suggestion in the record that the September 11, 2006 money judgment, upon which the lien is based, is invalid or unenforceable.
Accordingly, the Court ORDERS defendant to immediately disburse the $71,008.47 to the Alioto firm in satisfaction of the lien.
1

Satchell v. Fedex Express, Not Reported in F.Supp.2d (2007) IT IS SO ORDERED.
2