Case 3:03-cv-02659 Document 724 Filed 04/09/2007 Page 1 of 16

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DERRICK SATCHELL, KALINI BOYK1N,

Case No.: C03-2659 SI; C 03-2878 SI

11 VALERIE BROWN, RICK GONZALES,

CYNTHIA GUERRERO, RACHEL HUTCHINS, CLASS ACTION

12 TYRONE MERRIT, KELVIN SMITH, SR., and

KEN STEVENSON, on behalf of themselves and [PROPOSED] ORDER (1)

13 all others similarly situated,

PRELIMINARILY APPROVING CLASS

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Plaintiffs,

ACTION SETTLEMENT, (2) PROVISIONALLY CERTIFYING

SETTLEMENT CLASSES, (3) DIRECTING

15 vs.

DISTRIBUTION OF NOTICE OF THE

SETTLEMENT, AND (4) SETTING A

16 FEDERAL EXPRESS CORPORATION, a

SCHEDULE FOR THE FINAL

Delaware Corporation,

SETTLEMENT APPROVAL PROCESS

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Defendant.

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT

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I. INTRODUCTION

2

The Court certified this case as a class action on September 28, 2005, and the parties completed

3 substantially all pre-trial preparation. Under the supervision of a mediator, Plaintiffs and Defendant

4 FedEx Express ("FedEx Express") (collectively, the "Parties") engaged in lengthy settlement 5 discussions over the course of several months in order to negotiate a settlement of this litigation. The 6 terms of the proposed settlement ("Settlement") are set forth in this Preliminary Approval Order,

7 which has been jointly approved and proposed by both Parties, and in the [Proposed] Consent Decree

8 ("Decree") (attached hereto as Exhibit 1).

9

On April 9, 2007, the parties jointly submitted this [Proposed] Order, and Plaintiffs filed a

10 Motion for an Order Preliminarily Approving Class Action Settlement, Provisionally Certifying

11 Settlement Classes, Directing Distribution of Notice of the Settlement, and Setting a Schedule for the

12 Final Settlement Approval Process. In their Motion, Plaintiffs requested that the Court grant

13 conditional certification of settlement classes of African American and Latino hourly employees and

14 African American Operations Managers under Rule 23(b)(3) for monetary relief (with a right to opt

15 out of the settlement pursuant to Fed.R.Civ.Proc. 23(e)(3)) and under Rule 23 (b)(2) for injunctive

16 relief (with no opt out right). Plaintiffs also requested that the Court grant preliminary approval to the

17 [Proposed] Consent Decree, including the injunctive relief, proposed plan of allocation to class 18 members, and service payments to Class Representatives and 18 additional declarants ("Declarants").

19 Plaintiffs also requested that the Court approve a proposed Notice of Proposed Settlement of Class

20 Action Lawsuit and Fairness Hearing ("Class Notice," attached hereto as Exhibit 2) and a proposed

21 Claim Form (attached hereto as Exhibit 3).

22

Having reviewed the [Proposed] Consent Decree and Motion, along with the files and records

23 of this case, the Court now FINDS, CONCLUDES, and ORDERS as follows: 24

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II. LITIGATION BACKGROUND

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On December 12, 2002, Plaintiffs filed the Satchell case in the Alameda County Superior

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1 PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
- CASE NO.: C03-2659 SI; C 03-2878 SI

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1 Court, which they amended on May 18, 2003. On June 6, 2003, Defendants removed the case to the

2 Northern District of California pursuant to 28 U.S.C. § 1332 and 1441(b). On June 19, 2003,

3 Plaintiffs filed the Caidwell case in the Northern District of California alleging that FedEx Express

4 violated 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 by discriminating against its

5 African American and Latino employees on the basis of race and national origin. On September 25,

6 2003, the court issued an order relating the Caidwell and Satchell cases, and on November 13, 2003,

7 pursuant to a stipulation of the parties, the cases were consolidated for all purposes.

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Plaintiffs' First Consolidated Amended Complaint was filed on November 12, 2003, and the

9 operative Third Amended Consolidated Complaint was filed on November 14, 2006. The named

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..

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plaintiffs are Derrick Satchell, Kahm Boykin, Valerie Brown, Rick Gonzales, Cynthia Guerrero,

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Rachel Hutchins, Tyrone Merritt, Kelvin Smith, Sr., and Ken Stevenson. Plaintiffs allege that, in
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violation of Title VII and Section 1981, FedEx Express discriminates against its African American and 13

14 Latino hourly employees with respect to promotions, compensation, and discipline, and discriminates

15 against its African American Operations Managers with respect to compensation and discipline.

16 Specifically, Plaintiffs allege that FedEx Express's use of the Basic Skills Test ("BST") as a selection

17 device for certain hourly jobs violates Title VII because the test has a disparate impact on African
18 Americans and Latinos and cannot be justified by business necessity, and that FedEx Express uses
19 overly subjective practices with respect to promotions, compensation, and discipline that both allow
20 intentional discrimination against African Americans and Latinos and have a disparate impact on
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22 African Americans and Latinos which cannot be justified by business necessity.

23

FedEx Express denied, and continues to deny, all of the allegations in the complaint, and

24 specifically denies that it has discriminated against its African American and Latino employees, or that
25 it has any liability in this matter. 26
On September 28, 2005, the Court certified two classes: 27

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
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1. A "Minority Employee Class" consisting of all African-American and Latino Handlers,

Freight Handlers, Material Handlers, Checker-Sorters, Customer Service Agents, Couriers,

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Swing Drivers, Ramp Transport Drivers, Ramp Area Drivers, Shuttle Drivers, Dangerous

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Goods Agents, Information Agents, Operations Agents, Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Input Auditors, Team Leaders, and

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Dispatchers, working in defendant's Western Region, who are or were employed during the

class period, who allege claims of employment discrimination in violation of Title VII of the

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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

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Employment and Housing Act; and

2. An "African-American Lower-Level Manager Class" consisting of all African-American

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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

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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

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Act.

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The parties vigorously litigated the case, including filing numerous motions to compel

13 discovery, summary judgment motions against six of the Class Representatives, and 21 motions in

14 limine. The parties also substantially completed pretrial preparation, including the exchange of 15
proposed exhibits and verdict forms. 16

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III. CERTIFICATION OF SETTLEMENT CLASSES

For settlement purposes only, the Parties have proposed conditional certification of the 19
following settlement classes: 20
For purposes of the injunctive and declaratory relief provided in the Decree, injunctive-relief 21
classes certified under Federal Rule of Civil Procedure 23(b)(2) and consisting of: 22
1. All Minority employees of the AGFS or DGO Divisions of FedEx Express who 23
are or were employed in the position of Handlers, Freight Handlers, Material Handlers, Checker24 25 Sorters, Customer Service Agents, Couriers, Swing Drivers, Ramp Transport Drivers, Ramp Area
26 Drivers, Shuttle Drivers, Dangerous Goods Agents, Information Agents, Operations Agents, Ramp 27 Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Import Auditors,

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
- CASE NO.: C03-2659 SI; C 03 -2878 SI

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1 Team Leaders, and Dispatchers in the COMATs that comprise the Western Region at any time

2 between October 17, 1999, and the end of the Decree.

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2. All African American employees of the AGFS and DGO Divisions of FedEx

4 Express who are or were employed in the position of Operations Managers in the COMATs that

5 comprise the Western Region at any time between October 17, 1999, and the end of the Decree.

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For purposes of the monetary relief provided in the Decree, a Settlement Class certified under

7 Federal Rule of Civil Procedure 23(b)(3) and consisting of:

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3. All Minority employees of the AGFS or DGO Divisions of FedEx Express who

9 are or were employed in the position of Handlers, Freight Handlers, Material Handlers, Checker-

10 Sorters, Customer Service Agents, Couriers, Swing Drivers, Ramp Transport Drivers, Ramp Area

11 Drivers, Shuttle Drivers, Dangerous Goods Agents, Information Agents, Operations Agents, Ramp

12 Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Import Auditor,

13 Team Leaders, and Dispatchers in the COMATs that comprised the Western Region at any time

14 between October 17, 1999, and the Preliminary Approval Date, who do not timely opt out.

15 All African American employees of the AGFS or DGO Divisions of FedEx Express who are or were

16 employed in the position of Operations Managers in the COMATs that comprised the Western Region

17 at any time between October 17, 1999, and the Preliminary Approval Date who do not timely opt out.

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The Court previously considered and ruled upon Plaintiffs' Motion for Class Certification, and

19 found that the classes proposed by Plaintiffs satisfied all requirements of Rule 23(a) and Rule 23(b)(2).

20 The differences between the classes certified by the Court in September 2005 and the Classes certified

21 by this order are that (1) the Classes certified by this order are divided into (a) opt-out Settlement

22 Classes under Rule 23(b)(3) for monetary relief and (b) non-opt-out Classes under Rule 23(b)(2) with

23 respect to injunctive relief; and (2) the Class Periods for membership in the respective Classes are

24 defined as (a) October 17, 1999 through the date of Preliminary Approval for the Monetary Relief

25 Settlement Class, and (b) October 17, 1999 through the end of the term of the Consent Decree for the

26 Injunctive Relief Classes.

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
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1

As with the Classes certified on September 27, 2005, the proposed injunctive-relief and

2 Settlement Classes allege claims for race and national origin discrimination brought under the Civil

3 Rights Act of 1964 (both disparate impact and disparate treatment), 42 U.S.C. §1981, and, for those

4 Class Members working, or who worked, in California, the California fair Employment and Housing

5 Act.

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Based on the previously filed class certification papers, and this Court's prior findings and

7 rulings thereon, the Court hereby FINDS and CONCLUDES that the injunctive-relief classes set forth

8 above satisfy all of the requirements for certification under Rule 23(a) and Rule 23 (b)(2), and the

9 COURT hereby CERTIFIES those injunctive-relief classes.

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Based on the previously filed class certification papers, and this Court's prior findings and

11 rulings thereon, the Court also hereby FINDS and CONCLUDES that the monetary-relief Settlement

12 Class described above satisfies all of the requirements for certification under Rule 23(a). In addition,

13 having carefully considered the papers filed in connection with this motion, the entire record in this

14 case, the arguments of counsel, and the requirements of Rule 23(b)(3), the Court FINDS and

15 CONCLUDES that the monetary-relief Settlement Class satisfies the requirements for certification

16 under Rule 23(b)(3). Questions of law or fact common to the class predominate over individualized

17 issues, and a class action is superior to other available methods for the fair and efficient adjudication of

18 the controversy. Because certification of the monetary-relief Settlement Class is proposed in the

19 context of a settlement, the Court need not inquire whether the case, if tried as a class action, would

20 present intractable management problems. The Court hereby CERTIFIES the monetary-relief

21 Settlement Class as set forth above.

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IV. APPOINTMENT OF CLASS REPRESENTATIVES AND CLASS COUNSEL

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The Court previously found eight of the Class Representatives to be typical and adequate, and

24 appointed them as Class Representatives. In its Class Certification Order, the Court ordered Plaintiffs

25 to add a Class Representative who had a claim regarding the BST, and Plaintiff did so. The Court

26 hereby finds that the newly-named Class Representative, Tyrone Merritt, is also typical and adequate,

27 and may serve as a Class Representative. Accordingly, for settlement purposes, this Court hereby

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
- CASE NO.: C03-2659 SI; C 03 -2878 SI

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1 appoints Derrick Satchell and Kalini Boykin as Class Representatives for the Operations Manager

2 Class and Valerie Brown, Rick Gonzales, Cynthia Guerrero, Rachel Hutchins, Tyrone Merritt, Kelvin

3 Smith, Sr., and Ken Stevenson as Class Representatives for the Minority Employee Class.

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This Court previously appointed seven law firms as Class Counsel. Plaintiffs have proposed

5 that Barry Goldstein be appointed additional Class Counsel. Mr. Goldstein has extensive experience

6 and expertise in litigating, settling, and monitoring cases of this sort. Accordingly, for purposes of

7 settlement and conditional certification of the Settlement Class, the following are appointed Class

8 Counsel: Altshuler Berzon LLP; Barry Goldstein, of counsel to Goldstein, Demchak, Baller, Borgen,

9 and Dardarian; Law Office of John Burns; Law Offices of Michael S. Davis; Law Offices of Waukeen

10 McCoy; Law Offices of Kay McKenzie Parker; Lieff, Cabraser, Heimann & Bernstein, LLP; and

11 Schneider & Wallace.

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V. PRELIMINARY APPROVAL OF CONSENT DECREE

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The Court has reviewed the terms of the [Proposed] Consent Decree attached as Exhibit 1,

15 including specifically the injunctive relief provisions and the plan of allocation, and the Plaintiffs'

16 description of the settlement in the Motion papers. The Court has also read and considered the

17 declarations of James M. Finberg and Barry Goldstein in support of preliminary approval. Based on

18 review of those papers, and the Court's familiarity with this case, the Court concludes that the

19 settlement and Consent Decree are the result of extensive, arms' -length negotiations between the

20 Parties after lengthy and exhaustive litigation, including thorough discovery and extensive motion

21 practice and pre-trial preparation. The assistance of an experienced mediator in the settlement process

22 confirms that the settlement is non-collusive. Based on that review, and the Court's familiarity with

23 the issues in the case, the Court concludes that the proposed Consent Decree has no obvious defects

24 and is within the range of possible settlement approval, such that notice to the Class is appropriate.

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IT IS THEREFORE ORDERED THAT:

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1. The [Proposed] Consent Decree and the settlement it embodies are hereby

27 PRELIMD4ARILY APPROVED. Final approval and entry of the Consent Decree is subject to the

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
- CASE NO.: C03-2659 SI; C 03 -2878 SI

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1 hearing of any objections of members of the Settlement Class to the proposed settlement embodied in

2 the Consent Decree.

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2. Pending the determination of the fairness of the Consent Decree, all further litigation of

4 this action is hereby STAYED, the trial scheduled to begin on May 7, 2007 is POSTPONED

5 indefinitely and all rulings on all pending motions before the Court are hereby DEFERRED.

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VI. APPROVAL OF THE FORM AND MANNER OF DISTRIBUTING CLASS

NOTICE AND CLAIM FORM

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The Parties have also submitted for this Court's approval a proposed Class Notice and a

10 proposed Claim Form, which the Court has carefully reviewed.

The proposed Class Notice appears to be the best notice practical under the circumstances and
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12 appears to allow Class Members a full and fair opportunity to consider the proposed Settlement and

13 develop a response. The proposed plan for distributing the Class Notice and Claim Form, which is to

14 be attached to the Class Notice, likewise appears to be a reasonable method calculated to reach all

15 members of the Class who would be bound by the Settlement. Under this plan, the Claims

Administrator will distribute the Class Notice to Settlement Class Members by first class U.S. Mail. 16

17 There appears to be no additional method of distribution that would be reasonably likely to notify

18 Class Members who may not receive notice pursuant to the proposed distribution plan.

19

The Class Notice fairly, plainly, accurately, and reasonably informs Class Members of:

20 (1) appropriate information about the nature of this litigation, the settlement class, the identity of Class

21 Counsel, and the essential terms of the Settlement and Decree, including injunctive relief and the plan

22 of allocation; (2) appropriate information about Class Counsel's forthcoming application for attorneys'

23 fees, the proposed service payments to Class Representatives and Declarants, and other payments that

24 will be deducted from the settlement fund; (3) appropriate information about how to participate in the

25 Settlement; (4) appropriate information about this Court's procedures for final approval of the

26 Settlement Agreement and Settlement, and about class members' right to appear through counsel if

27 they desire; (5) appropriate information about how to challenge or opt-out of the Settlement, if they

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
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1 wish to do so; and (6) appropriate instructions as to how to obtain additional information regarding this

2 litigation, the Settlement, and the Decree.

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Similarly, the proposed Claim Form appears to allow members of the Settlement Classes a full

4 and fair opportunity to submit a claim for proceeds in connection with the Settlement. Moreover, the

5 Claim Form fairly, accurately, and reasonably informs Settlement Class Members that failure to

6 complete and submit a Claim Form, in the manner and time specified, shall constitute a waiver of any

7 right to obtain any share of the Settlement Payment.

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The Court, having reviewed the proposed Class Notice and Claim Form (collectively "Notice

9 Materials"), finds and concludes that the proposed plan for distributing them will provide the best

10 notice practicable, satisfies the notice requirements of Rule 23(e), and satisfies all other legal and due 11 process requirements. Accordingly, the Court hereby ORDERS asfollows:

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A. The form and manner of distributing the proposed Notice
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Materials are hereby approved. 14

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B. Promptly following the entry of this Order, the Claims

16 Administrator shall prepare final versions of the Notice Materials, incorporating into the

17 Noti.ce the relevant dates and deadlines set forth in this Order. 18
C. Within twenty days following the Preliminary Approval Date, 19 20 FedEx Express shall provide the Claims Administrator with computer readable information, in
21 a format acceptable to the Claims Administrator, that contains the full names, social security

22 numbers, FedEx Express employee ID, last known addresses and phone numbers, start dates

23 and, as applicable, end dates of employment with FedEx Express from October 17, 1999 to the
24 date of Preliminary Approval in class positions, class positions held (and date for each
25 position, and status as casual, part-time, or full time), first date that the employee took and
26 27 failed at least one portion of the BST, and the date of any subsequent passage of all portions of

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
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1 theBST.

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D. Within twenty days following the Preliminary Approval Date,

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Class Counsel shall provide the Claims Administrator with a computer readable list of all
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known potential Settlement Class members and their mailing addresses. Prior to the mailing

6 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

8 information for potential class members as may be available through the National Change of

Address ("NCOA") system.
10 E. Within 40 days of the Preliminary Approval Date, the Claims
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Administrator shall mail, via first class postage, the Notice Materials to all known potential 12
13 Settlement Class members at their last known address or at the most recent address that may

14 have been obtained through the NCOA. The Claims Administrator will trace all returned

15 undeliverable notices and re-mail to the most recent address available.
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F. The Claims Administrator shall take all reasonable steps to
17 obtain the correct address of any Class Members for whom the notice is returned by the post
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19 office as undeliverable and otherwise to provide the Class Notice. The Claims Administrator
20 shall notify Class Counsel of any mail sent to Class Members that is returned as undeliverable

21 after the first mailing as well as any such mail returned as undeliverable after any subsequent

22 mailing(s).
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G. The Claims Administrator shall take all other actions in

25 furtherance of claims administration as are specified in the Decree.

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
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VII. Procedures For Final Approval Of The Settlement

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A. Fairness Hearing

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The Court hereby schedules a hearing to determine whether to grant final certification of the

Settlement Classes, and final approval of the Consent Decree (including the proposed plan of 5 allocation, injunctive relief, payment of attorneys' fees and costs, and service payments to the Class 6 Representatives and the Declarants) (the "Fairness Hearing") for _________________ (date) at _______ 7 (time) [August 10, 2007, at 9:00 am, or another day and time approximately 100 days from 8 Preliminary Approval Date]. If any attorney will be representing a class member objecting to the 9 Consent Decree, the attorney shall file a notice of appearance with the Court and serve counsel for all

10 parties at least 14 days before the Fairness Hearing.

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B. Deadline To Request Exclusion From The Settlement

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Class members may exclude themselves, or opt-out, of the monetary relief provisions of the

13 class settlement. Any request for exclusion must be in the form of a written "opt-out" statement sent to

14 the Claims Administrator. Information on how to opt-out of the settlement shall be made available by

15 the Claims Administrator. A person wishing to opt-out must sign a statement which includes the

16 following language:

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I understand that I am requesting to be excluded from the class monetary settlement and

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that I will receive no money from'the settlement fund created under the Consent Decree

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entered into by FedEx Express. I understand that if I am excluded from the class

monetary settlement, I may bring a separate legal action seeking damages, but may

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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

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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. 22

To be effective, any opt-out statement must be sent to the Claims Administrator at the address 23

24 provided in the Class Notice via First Class United States Mail, postmarked no later than 45 days after

25 the Claims Administrator first mails the Class Notice to the Class. Only those class members who

26 request exclusion in the time and manner set forth herein shall be excluded from the class for monetary

27 relief purposes. Pursuant to Federal Rules of Civil Procedure 23(b)(3) and (c)(2), the terms and

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
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1 provisions of the Consent Decree concerning monetary relief shall have no binding effect on any

2 person who makes a timely request for exclusion in the manner required by this Order.

3

The Claims Administrator shall date stamp the original of any opt-out statement and serve

4 copies on both FedEx Express and Class Counsel via facsimile and overnight delivery within two (2)

5 business days of receipt of such statement. The Claims Administrator will also file the original opt-out

6 statements with the Clerk of the Court no later than five (5) days prior to the scheduled Fairness 7 Hearing date. The Claims Administrator shall retain copies of all opt-out statements until such time as

8 it has completed its duties and responsibilities under this Decree.

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Class members shall be permitted to withdraw or rescind their opt-out statements by submitting

10 a "rescission of opt-out" statement to the Claims Administrator. The rescission of opt-out statement

11 shall include the following language:

12 I previously submitted an opt-out statement seeking exclusion from the class monetary

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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 the

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claims settlement fund and may not bring a separate legal action against FedEx Express

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seeking damages with respect to the Released Claims.

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A class member wishing to submit such a rescission statement shall sign and date the statement

17 and cause it to be delivered to the Claims Administrator no later than 52 days after the Claims

18 Administrator first mails Class Notice.

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The Claims Administrator shall stamp the date received on the original of any rescission of opt-

20 out statement and serve copies to counsel for FedEx Express and Class Counsel via facsimile and

21 overnight mail no later than two business days after receipt thereof and shall file the date-stamped

22 originals with the Clerk of the Court no later than five business days prior to the date of the Fairness

23 Hearing. The Claims Administrator shall retain copies of all rescissions of opt-out statements until

24 such time as the Claims Administrator is relieved of its duties and responsibilities under this Decree.

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C. Defendant's Right to Rescind Agreement

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If the number of individuals who opt out of the Settlement Class in the manner provided in this

27 Order exceeds 50 (not including persons who have, before April 6, 2007, filed and served lawsuits,

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1 other than the Satchell and Caldwell lawsuits, alleging race or national origin discrimination in

2 compensation, promotion, or discipline that allegedly occurred during the Class Period), then FedEx

3 Express, at its sole option, shall have the right to void the Settlement on the fifth business day after the

4 Court requires individuals to return rescission of class member opt-outs. If FedEx Express exercises

5 this option, all of FedEx Express's obligations under the Consent Decree shall cease to be of any force

6 and effect, and the Consent Decree and any orders entered in connection therewith shall be vacated,

7 rescinded, canceled, and annulled, and the parties shall return to the status quo in the Civil Action as if

8 the parties had not entered into the Consent Decree. In addition, in such event, the Consent Decree and

9 all negotiations, court orders, and proceedings relating thereto shall be without prejudice to the rights

10 of any and all parties thereto, and evidence relating to the Consent Decree and all negotiations shall not

11 be admissible or discoverable in the Civil Action or otherwise.

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D. Deadline for Filing Objections to Settlement and [Proposed] Consent Decree

13

Any Class Member who wishes to object to the fairness, reasonableness or adequacy of the

14 Settlement Agreement or the Settlement must do so in writing, although Class Members objecting to

15 the Settlement may also appear at the Fairness Hearing. To be considered, any objection to the final

16 approval of the Consent Decree must state the basis for the objection and must be timely filed in

17 writing, along with any other papers the class member wishes the Court to consider, with the Claims

18 Administrator, at the address provided in the Class Notice, via First-Class United States mail, postage 19 prepaid, postmarked no later than no later than 45 days after the date that Class Notice is first mailed

20 by the Claims Administrator. An objector who wishes to appear at the Fairness Hearing, either in

21 person or through counsel hired by the objector, must state his or herintention to do so at the time the

22 objector submits his/her written objections. Any member of the class who does not timely file and

23 serve such a written objection shall not be permitted to raise such objection, except for good cause

24 shown, and any member of the class who fails to object in the manner prescribed herein shall be

25 deemed to have waived, and shall be foreclosed from raising, any such objection.

26

The Claims Administrator shall stamp the date received on the original of any objection and

27 send copies of each objection to the Parties by facsimile and overnight delivery not later than two

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
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1 business days after receipt thereof The Claims Administrator shall also file the date-stamped originals

2 of any objections with the Clerk of Court within three business days after the time for filing objections

3 ends.

4

If objections are filed, Class Counsel or counsel for FedEx Express may engage in discovery

5 concerning the filed objections prior to the Fairness Hearing.

6

E. Deadline For Submitting Claims Form

7

A Class Member who does not opt out will be eligible to receive his or her proportionate share

8 of the settlement benefit. To receive this share, such a Class Member must properly and timely

9 complete a Claim Form in accordance with the terms of the Consent Decree. To be effective, the

10 Claim Form must be sent to the Claims Administrator at the address provided in the Class Notice by

11 First Class United States Mail, postage prepaid, postmarked no later than 70 days after the initial

12 mailing of the Class Notice to class members. Failure to postmark a completed Claim Form by the

13 Claim Filing Deadline shall bar the Settlement Class member from receiving any monetary award 14 pursuant to the proposed Consent Decree. Settlement Class members who do notfile timely and valid 15 Claim Forms shall nonetheless be bound by the judgment and release in this action as set forth in the

16 proposed Consent Decree, unless that Settlement Class member timely opts-out of the Settlement.

17

It shall be the sole responsibility of each member of the Settlement Class who seeks a monetary

18 award to notify the Claims Administrator if the class member changes his or her address. Failure of a

19 Settlement Class member to keep the Claims Administrator apprised of his or her address may result in

20 the claim being denied or forfeited.

21

F. Deadline for Submitting Motion Seeking Final Approval.

22

No later than 35 days before the Fairness Hearing, Plaintiffs shall file a Motion for Final

23 Approval of the Settlement and Consent Decree. On or before one week before the Fairness Hearing,

24 the Parties may file with the Court a reply brief responding to any filed objections.

25

G. Deadline For Petition for Attorneys Fees

26

Class Counsel shall file with this Court their petition for an award of attorneys' fees and

27 reimbursement of expenses no later than 35 days before the Fairness Hearing. Class Counsel may file

28
13
PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
- CASE NO.: C03-2659 SI; C 03-2878 SI

Case 3:03-cv-02659 Document 724 Filed 04/09/2007 Page 15 of 16

1 a reply to any opposition memorandum filed by any objector no later than one week before the

2 Fairness Hearing.

3

H. Deadline for Petition For Approval Of Service Payments

4

Class Counsel shall file with this Court their petition for an award of service payments to the

5 nine Class Representatives and to the 18 Declarants no later than 35 days before the Fairness Hearing. 6 Class Counsel may file a reply to any opposition memorandum filed by an objector no later than one

7 week before the Fairness Hearing.

8

VIII. PLAINTIFFS' AND CLASS MEMBERS' RELEASE

9

If, at the Fairness Hearing, this Court grants Final Approval to the Settlement and Consent

10 Decree, Named Plaintiffs and each individual Settlement Class Member who does not timely opt out

11 will release claims, as set forth in Section VIII of the Consent Decree, by operation of this Court's

12 entry of the Judgment and Final Approval, regardless of whether he or she submits a Claim Form or

13 receives any share of the Settlement Fund.

14

IX. APPOINTMENT OF CLAIMS ADMINISTRATOR

15

Settlement Services, Inc. of Tallahassee, Florida is hereby appointed Claims Administrator to

16 carry out the duties set forth in this Order and the Consent Decree.

17

18

19

20

21

22

23

H

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14
PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
- CASE NO.: C03-2659 SI; C 03-2878 SI

Case 3:03-cv-02659 Document 724 Filed 04/09/2007 Page 16 of 16

1

X. DISPOSITION IF SETTLEMENT DOES NOT BECOME FINAL

2

Should this Court or any reviewing court on direct appeal and/or on writ of certiorari to the

3 Supreme Court of the United States from a direct appeal to the U.S. Court of Appeals for the Ninth

4 Circuit refuse to approve this Consent Decree or require modification to this Decree, the Decree (and

5 the stipulated certification of settlement classes) shall be null and void, inadmissible and unusable in

6 any future proceeding and the Decree shall not be considered a binding settlement agreement, unless

7 Plaintiffs and FedEx Express each expressly and voluntarily approve in writing any such required

8 modification by this Court or by the reviewing Court.

9

10

11

12

13

IT IS SO ORDERED.

14

15

Dated:____________________

16

_________________________________ The Honorable Susan Illston
United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28
15
PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT
- CASE NO.: C03-2659 SI; C 03-2878 SI

 
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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

12

BOYKIN, VALERIE BROWN, RICK GONZALES, CYNTHIA GUERRERO,

13

RACHEL HUTCHINS, TYRONE 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
THIRD 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

562483.2

THIRD CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
c CASE No. 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 5 of 101

I

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

]7 October 17, 1999 through the date ofjudgment 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 against its

26 African American and Latino hourly employees in the Western Region through the use of

27 subjective and arbitrary decision making and highly discretionary criteria by

28 (1) disproportionately assigning Minority Employees to part-time and casual positions, instead of

562483.2

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1 to the full-time and permanent hourly positions to which similarly situated non-Minority

2 employees are sometimes initially assigned; (2) providing Minority Employees with fewer

3 promotions to full-time and part-time permanent hourly positions than provided to similarly

4 situated non-Minority employees; (3) providing Minority Employees with fewer promotions to

5 management positions than provided to similarly situated non-Minority employees; (4) providing

6 Minority Employees with less compensation, including less pay for the same work and less

7 overtime, than provided to similarly situated non-Minority employees; and (5) disciplining

8 Minority Employees for petty matters and/or for infractions unsupported or contradicted by

9 credible evidence, for which similarly situated non-Minority employees are not disciplined or are

10 disciplined less harshly.

ll

3. Representative Plaintiffs Brown, Gonzales, Guerrero, Hutchins, Merritt,

12 Smith, and Stevenson also allege on behalf of themselves and the Minority Employee Class that

13 FedEx Express discriminates against the Minority Employee Class by requiring applicants for

14 certain promotions to pass the Basic Skills Test ("BST"), which has a disparate impact on

15 Minorities and is not a valid selection tool.

16

4. Representative Plaintiffs Derrick Satchell and Kalini Boykin allege on

17 behalf of themselves and the class of African American Lower-Level Managers that FedEx

18 Express engages in a continuing policy and practice of racial discrimination against its Afiican

19 American Operations Managers and other managers below the level of Senior Manager ("African

20 American Lower-Level Managers") in the Western Region through the use of subjective and

21 arbitrary decision-making and highly discretionary criteria by (1) providing Afiican American

22 Lower-Level Managers with fewer promotions to higher management grade levels and/or senior

23 management positions than provided to similarly situated non-Minority managers; (2) providing

24 Afiican American Lower-Level Managers with less compensation, including less pay for the

25 same work, than provided to similarly situated non-Minority managers; and (3) disciplining

26 Afiican American Lower-Level Managers for petty matters and/or for infractions unsupported or

27 contradicted by credible evidence, for which similarly situated non-Minority managers are not

28 disciplined or are disciplined less harshly.

562483.2

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I

5. This action seeks an end to these discriminatory practices, and seeks

2 declaratory and injunctive relief, including rightful place relief, back pay, front pay, and

3 compensatory and punitive damages for the individual Plaintiffs and members of the two classes.

4

JURISDICTION AND VENUE

5

6. This Court has jurisdiction over this action under 28 U.S.C. § 1331 and

6 42 U.S.C. §§ 2000e-5(f)(3) and 42 U.S.C. § 1981. The action presents federal questions under

7 Title VII of the Civil Rights Act of 1964, 42 U.S. C.§ 2000e, et seq., as amended, and 42 U.S.C.

8 § 1981. Pursuant to 28 U.S.C. § 1367, this Court has supplemental jurisdiction over plaintiffs'

9 claims under the California Fair Employment and Housing Act, Cal. Gov't Code§§ 12940, et

10 seq.

11

7. Venue is proper in this district pursuant to 42 U.S.C. § 2000e5(f) and

12 . 28 U.S.C. § 1391 (b) & (c). All the named Plaintiffs' claims, except for those of Plaintiff Merritt,

13 arose in California, and many of the acts complained of herein occurred in this District and gave

14 rise to the claims alleged. Defendant operates over 100 facilities in California and employs

15 thousands of workers in the State of California. Defendant operates at least 10 facilities in the

16 Northern District of California.

17

THE PARTIES

18

8. Plaintiff Derrick Satchell is an African American formerly employed by

19 Defendant FedEx Express as a Courier Operations Manager at its distribution facility located at

20 335 Brokaw Road, Santa Clara, California (the "Santa Clara Facility"). Plaintiff Satchell was

21 employed by Defendant from approximately June 1992 until April 16, 2002. Plaintiff Satchell is

22 a resident of Tracy, California.

23

9. PlaintiffKalini Boykin is an African American currently employed by

24 Defendant as a Ramp Transport Driver ("RTD") Operations Manager, most recently at its

25 operations facility located at 1254 Davis Street, San Leandro, California (the "San Leandro

26 Facility"). PlaintiffBoykin has been employed by Defendant in several capacities since

27 approximately May 1995. PlaintiffBoykin is a resident of Sacramento, California.

28
562483.2

10. Plaintiff Valerie Brown is an African American currently employed by

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1 Defendant as a part-time Customer Service Agent at 935 Performance Dr., Stockton, California

2 (the "Stockton Facility"). Plaintiff Brown has been employed by defendant FedEx Express at

3 several of its facilities and in several capacities since approximately 1982. Plaintiff Brown is a

4 resident of Tracy, California.

5

11. Plaintiff Rick Gonzales is a Latino formerly employed by Defendant

6 FedEx Express as a Courier at Defendant's facility located at 9339 Ann Street, Santa Fe Springs,

7 California (the "Santa Fe Springs Facility"). Plaintiff Gonzales was employed by Defendant from

8 approximately May 1988 until September 2002. Plaintiff Gonzales is a resident of Temecula,

9 California. Plaintiffs are informed and believe, and thereon allege, that Plaintiff is eligible for

10 rehire.

11

12. Plaintiff Cynthia Guerrero is a Latina formerly employed by Defendant

12 FedEx Express as a Courier at Defendant's Santa Fe Springs Facility. Plaintiff Guerrero was

13 employed by Defendant from approximately 1995 to July 2004. Plaintiff Guerrero currently

14 resides in Topeka, Kansas. Plaintiffs are informed and believe, and thereon allege, that Plaintiff

15 is eligible for rehire.

16

13. Plaintiff Rachel Hutchins is an African American formerly employed by

17 Defendant FedEx Express as a part-time, casual Handler at Defendant's facility located at 2103

18 Airport Drive, Bakersfield, California (the "Bakersfield Facility"). Plaintiff Hutchins was

19 employed by Defendant from approximately December 1995 through April 1996, and from

20 March 2001 through January 2004. Plaintiff Hutchins is a resident of Bakersfield, California.

21 Plaintiffs are informed and believe, and thereon allege, that Plaintiff is eligible for rehire.

22

14. Plaintiff Tyrone Merritt is an African American currently employed by

23 Defendant FedEx Express as a Field Facility Management Specialist, domiciled at Defendant's

24 facility in New Orleans, Louisiana. From the fall of2001 to July 2005, he worked as a permanent

25 part-time Handler at Defendant's facility located at 3002 E. Old Tower Rd., Phoenix, Arizona

26 (the "Phoenix Facility"). Plaintiff Merritt has been employed by Defendant since approximately

27 September 1998. Plaintiff Merritt is currently a resident of Memphis, Tennessee, where he is

28 attending training.
562483.2

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1

15. Plaintiff Kelvin Smith is an African American formerly employed by

2 Defendant FedEx Express as a part-time Lead Handler at Defendant's Santa Clara Facility.

3 Plaintiff Smith was employed by Defendant from approximately November 1989 to July 2002.

4 Plaintiff Smith is a resident of Apple Valley, California.

5

16. Plaintiff Ken Stevenson is an African American currently employed by

6 Defendant FedEx Express as an Operations Manager at Defendant's facility located at 201 W.

7 Manville St., Compton, California (the "Compton Facility"). Plaintiff Stevenson has been

8 employed by Defendant in various positions since approximately May 1997. Plaintiff Stevenson

9 is a resident of Long Beach, California.

10

17. Defendant FedEx Express is, and at all times mentioned herein was, a

11 Delaware corporation operating express mail and package delivery and freight delivery services

12 in the San Francisco Bay Area, as well as throughout the State of California and the United

13 States. FedEx Express operates facilities, among other places, in Bakersfield, Emeryville,

14 Milpitas, Oakland, San Francisco, San Jose, San Leandro, Santa Clara, Santa Fe Springs, and

15 Sunnyvale, California.

16

CLASS ALLEGATIONS

17

18. The Representative Plaintiffs bring this class action pursuant to Fed. R.

18 Civ. P. 23(a), (b)(2), and (b)(3), on behalf of: (I) a "Minority Employee Class" comprising all

19 African-American and Latino Handlers, Freight Handlers, Material Handlers, Checker/Sorters,

20 Customer Service Agents, Couriers, Swing Drivers, Ramp Transport Drivers, Ramp Area

21 Drivers, Shuttle Drivers, Dangerous Goods Agents, Information Agents, Operations Agents,

22 Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Input

23 Auditors, Team Leaders, and Dispatchers working in FedEx's Western Region, which includes

24 the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New

25 Mexico, Oregon, part of Texas, Utah, Washington, and Wyoming, during the period October 17,

26 1999 through the date ofjudgment in this action; and (2) an "African American Lower-Level

27 Manager Class" comprising all African-American Operations Managers in FedEx's Western

28 Region, which includes the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho,

562483.2

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1 Montana, Nevada, New Mexico, Oregon, part of Texas, Utah, Washington, and Wyoming, during

2 the period October I 7, 1999 through the date ofjudgment in this action.

3

A. Employee Class

4

19. Plaintiffs Brown, Gonzales, Guerrero, Hutchins, Merritt, Smith, and

5 Stevenson are members of, and seek to represent, the Minority Employees Class.

6

20. The members of the Minority Employee Class identified herein are so

7 numerous that joinder of all members is impracticable. By the end of2003, FedEx Express had

8 many tens of thousands of employees. Although the precise number of Minority Employees

9 affected by the discriminatory practices alleged herein is currently unknown, it is far greater than

10 can be feasibly addressed through joinder. The precise number is ascertainable from Defendant's

11 records.

12

21. There are many questions of law and fact common to the Minority

13 Employee Class, and these questions predominate over any questions affecting only individual

14 members. Common questions of fact or law include, among others: (I) whether FedEx Express'

15 policies or practices have a disparate impact on Minority Employees with respect to (a) initial job

16 assignment, (b) compensation, (c) promotion, and (d) discipline; (2) whether any disparate impact

I 7 is justified by business necessity; (3) whether the disparate impact constitutes a violation of

18 Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.; (4) whether FedEx Express has

19 intentionally discriminated against Minority Employees with respect to (a) initial job assignment,

20 (b) compensation, (c) promotion, and (d) discipline; (5) whether FedEx Express has engaged in a

21 pattern and practice of disparate treatment adverse to Minority Employees; (6) whether that

22 disparate treatment violates Title VII of the 1964 Civil Rights Act; (7) whether defendant's

23 intentional discrimination against Minority Employees violates 42 U.S.C. § 1981; and (9) whether

24 injunctive relief and other equitable remedies (including back pay and front pay) and

25 compensatory and punitive damages are warranted for the Minority Employee Class.

26

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

27 because FedEx Express has acted and/or refused to act on grounds generally applicable to the

28 Minority Employee Class, making appropriate declaratory and injunctive relief with respect to

562483.2

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1 Plaintiffs Brown, Gonzales, Guerrero, Hutchins, Merritt, Smith, and Stevenson and the Minority

2 Employee Class as a whole. The members ofthe Minority Employee Class are entitled to

3 injunctive relief to end FedEx Express' common, uniform, and unfair racially discriminatory

4 personnel policies and practices.

5

23. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3)

6 because common questions of fact and law predominate over any questions affecting only

7 individual members of the Minority Employee Class, and because a class action is superior to

8 other available methods for the fair and efficient adjudication of this litigation. The members of

9 the Minority Employee Class have been damaged and are entitled to recovery as a result ofFedEx

10 Express' common, uniform, and unfair racially discriminatory personnel policies and practices.

11 FedEx Express has computerized payroll and personnel data that will make calculation of

12 damages for specific members of the Minority Employee Class relatively simple.

13

B. African American Lower-Level Manager Class

14

24. Plaintiffs Satchell and Boykin are members of, and seek to represent, the

15 African American Lower-Level Manager Class.

16

25. The members of the African American Lower-Level Manager Class

17 identified herein are so numerous that joinder of all members is impracticable. By the end of

18 2003, FedEx Express had many tens of thousands of employees. Although the precise number of

19 African American Lower-Level Managers affected by the discriminatory practices alleged herein

20 is currently unknown, it is far greater than can be feasibly addressed through joinder. The precise

21 number is ascertainable from Defendant's records.

22

26. There are many questions oflaw and fact common to the African American

23 Lower-Level Manager Class, and these questions predominate over any questions affecting only

24 individual members. Common questions of fact or law include, among others: (1) whether

25 FedEx Express' policies or practices have a disparate impact on African American Lower-Level

26 Managers with respect to (a) compensation, (b) promotion to senior management, and

27 (c) discipline; (2) whether any disparate impact is justified by business necessity; (3) whether the

28 disparate impact constitutes a violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C.

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1 § 2000e et seq.; (4) whether FedEx Express has intentionally discriminated against African

2 American Lower-Level Managers with respect to (a) compensation, (b) promotion to senior

3 management, and (c) discipline; (5) whether FedEx Express has engaged in a pattern and practice

4 of disparate treatment adverse to African American Lower-Level Managers; (6) whether that

5 disparate treatment violates Title VII of the 1964 Civil Rights Act; (7) whether defendant's

6 intentional discrimination against African American Lower-Level Managers violates 42 U.S. C.

7 § 1981; and (9) whether injunctive relief and other equitable remedies (including back pay and

8 front pay) and compensatory and punitive damages are warranted for the African American

9 Lower-Level Manager Class.

10

27. The claims of Representative Plaintiffs Satchell and Boykin are typical of

11 the claims of the African American Lower-Level Manager Class.

12

28. Representative Plaintiffs Satchell and Boykin will fairly and adequately

13 represent and protect the interests of the members ofthe African American Lower-Level Manager

14 Class. Plaintiffs have retained counsel competent and experienced in complex class actions and

15 employment discrimination litigation.

16

29. 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

30. 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 ofthis

27 litigation. The members of the African American Lower-Level Manager Class have been

28 damaged and are entitled to recovery as a result ofFedEx Express' common, uniform, and unfair

562483.2

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I racially discriminatory personnel policies and practices. FedEx Express has computerized payroll 2 and personnel data that will make calculation of damages for specific members ofthe African 3 American Lower-Level Manager Class relatively simple.

4

STATEMENT OF FACTS APPLICABLE TO CLASS CLAIMS

5

A. FedEx Express' Discriminatory Policies and Practices Have A

Disparate Impact On Minorities. 6

31. Defendant FedEx Express denies Minority Employees and African

7

American Lower-Level Managers equal assignments, promotions, training, and compensation,

8

and over-disciplines Minority Employees and African American Lower-Level Managers, as a

9

result of reliance on policies and practices that have an adverse impact on Minority Employees

10

and African American Lower-Level Managers which cannot be justified by business necessity,

11

and for which alternative policies and practices with less discriminatory impact could be utilized

12

that would equally serve any asserted business necessity.

13

32. Plaintiffs are informed and believe that such policies and practices continue

14

up to and including the present and include, without limitation:

15

(a) Failure to consistently post job and promotional openings to ensure

16

that all Minority Employees and African American Lower-Level Managers have notice of and

17

opportunity to seek advancement, higher compensation, overtime, or more desirable assignments

18

and training;

19

(b) Reliance upon unweighted, arbitrary, and/or subjective criteria in
20

making job assignment, training, performance review, compensation, promotion, and discipline

21

decisions. Even where FedEx policies state objective requirements, these requirements are often

22

applied in an inconsistent manner and ignored at the discretion of management;

23

(c) Reliance on racial stereotypes in making employment decisions

24

involving job assignments, promotions, compensation, discipline and training;

25

(d) Pre-selection and "grooming" of non-Minority employees for
26

promotion, favorable assignments, higher pay, and more desirable positions;

27

(e) Maintenance of largely racially-segregated job categories and
28

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1 departments;

2

(f) Deterrence and discouragement of Minority Employees and African

3 American Lower-Level Managers from seeking advancement, training, favorable assignments

4 and higher paid, more desirable positions;

5

(g) Paying Minority Employees and African American Lower-Level

6 Managers lower compensation than similarly situated non-Minorities;

7

(h) Assigning Minority Employees to lower paying positions and

8 positions with lesser advancement potential than those given to non"Minorities (including part-

9 time and casual positions), and advancing Minority Employees more slowly from these positions

10 than similarly situated non-Minority employees;

11

(i) Providing less training and support to Minority Employees and

12 African American Lower-Level Managers than that given to non-Minority employees and

13 managers; and

14

(j) Using performance evaluations that have adverse impact and have

15 not been validated, and failing to explore alternative, non-discriminatory options.

16

33. Defendant FedEx Express also requires that applicants for certain positions

17 pass the BST, which has an adverse impact on Minority Employees and cannot be justified by any

18 business necessity, and for which alternative selection procedures with less discriminatory impact

19 could be utilized that would equally serve any asserted business necessity. The BST requirement

20 applies uniformly to all Courier, Ramp Transport Driver, Customer Service Agent, and Customer

21 Representative candidates in the Western Region.

22

34. Defendant FedEx Express engages in a pattern and practice of highly

23 subjective decision making with unfettered discretion regarding employment matters that is

24 discriminatory to Minority Employees and African American Lower-Level Managers and is

25 manifested in initial assignments (as to Minority Employees only), promotions, compensation,

26 and discipline. While Defendant has policies designed to govern these matters, many of these

27 policies involve uncontrolled subjective criteria and/or are applied by Defendant in an arbitrary

28 and capricious manner, and/or allow managers almost unlimited discretion, even with respect to

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I allegedly objective criteria. As a result, racial biases and stereotypes enter into Defendant's

2 employment decisions.

3

35. For example, although FedEx Express has objective criteria that must be

4 met before an hourly employee may apply for a promotion, managers often exercise their

5 discretion to either disapprove the promotions applications of Minority candidates who meet all

6 the objective criteria, or approve the promotions applications of non-Minority candidates who do

7 not meet all the objective criteria. Similarly, although candidates for promotion to certain

8 positions are supposed to be chosen based on allegedly objective criteria including years of

9 service and performance review scores, managers exercise their discretion to hire non-Minority

I0 candidates, even when those non-Minority candidates have lower scores on the objective criteria

11 than do some Minority applicants.

12

36. Defendant has discriminated against Minority Employees by use of a dual-

13 employment track. For example, both full-time and part-time employees fill Handler positions at

14 a facility. The full-time positions are more lucrative and provide employees with more

15 opportunities for advancement, greater job security, and greater pay and benefits. By contrast, the

16 part-time positions are less desirable because they offer lower wages, lesser benefits, changing

17 and inconsistent work hours, proportionately heavier responsibilities, and more difficult work

18 conditions. Defendant has a systematic pattern and practice of relegating qualified Minority

19 Employees to part-time jobs, with lesser job security, compensation, and opportunity for

20 advancement. Defendant typically reserves the full-time, permanent, higher wage positions for

21 non-Minority employees. Consistent with Defendant's long-standing discriminatory policies and

22 practices, Defendant typically hires Minority Employees only for entry level, part-time, and

23 casual positions.

24

37. Defendant also disproportionately fails to promote qualified Minority

25 Employees from part-time, casual positions to full-time and permanent positions at the same rate

26 as their similarly situated non-Minority counterparts. Even when FedEx Express does promote

27 Minority Employees from part-time, casual positions to part-time or full-time permanent

28 positions, it does not promote them as quickly as their similarly situated non-Minority

562483.2

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I counterparts.

2

38. FedEx also uses uniform performance evaluations that have adverse impact

3 and have not been validated, and that are the basis for promotion and compensation decisions

4 under FedEx policy.

5

39. Virtually all Minority Employees of Defendant FedEx Express occupy

6 entry level, hourly positions. FedEx Express disproportionately fails to promote qualified

7 Minority Employees to lower management positions such as Operations Manager, and instead

8 disproportionately promotes similarly situated or less qualified non-Minority employees to those

9 positions.

10

40. The few Minority Employees who are able to break into the management

II ranks are themselves often subjected to discriminatory practices that minimize their opportunities

12 for further advancement. Such practices include, for example, exclusion of Minority managers

13 from "informal" email buddy lists and social gatherings that are used to communicate relevant

14 operating procedures, discuss managerial issues, and post corporate advancement opportunities.

15

41. FedEx Express disproportionately fails to promote the few qualified

16 African American Lower-Level Managers to Senior Manager positions, and instead

17 disproportionately promotes similarly situated, or less qualified, non-Minority Operations

18 Managers or other non-Minority Lower-Level Managers to Senior Manager positions. Even

19 when African American Lower-Level Managers are promoted to Senior Manager positions, they

20 are promoted less quickly than similarly situated, or less qualified, non-Minorities.

21

42. Plaintiffs are informed and believe that Minority Employees and African

22 American Lower-Level Managers are paid less than non-Minority employees who perform

23 substantially similar work and have similar or lesser skills and experience. Plaintiffs are further

24 informed and believe that non-Minority employees are more likely to be assigned to positions that

25 pay better than positions to which Minority Employees are assigned.

26

43. Plaintiffs are informed and believe that this discrimination in compensation

27 takes on several forms: requiring Minority Employees and African American Lower-Level

28 Managers to perform the job duties of higher positions without a commensurate change in their

562483.2

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CASE No. C 03-2659 Sl; C 03-2878 Sl

Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 17 of 101

I title or increase in pay; paying Minority Employees and African American Lower-Level

2 Managers less than non-Minority employees with the same job title and job duties; providing

3 Minority Employees with fewer desired overtime hours than non-Minority employees with equal 4 or less seniority; and not paying Minority Employees the guaranteed minimum pay. 1

5

44. Defendant has also engaged in a longstanding, widespread and

6 discriminatory policy and practice of applying differential standards in determining whether to

7 subject an employee to disciplinary action. Minority Employees and African American Lower-

8 Level Managers are consistently reprimanded and disciplined for petty matters, and are

9 disciplined for infractions unsupported or contradicted by credible evidence. Non-Minority

10 Employees are not reprimanded or disciplined for similar matters, or for infractions which are not

11 supported by credible evidence.

12

45. Defendant routinely terminates Minority Employees and African American

13 Lower-Level Managers who receive three forms of written discipline within a 12-month period,

14 even if some of the three are documented counselings or Online Compliment/Counselings

15 ("OLCC"i, rather than formal warning letters. By contrast, Defendant does not automatically

16 terminate non-Minority employees and managers who are disciplined three times in a 12-month

17 period. Where non-Minorities have received three disciplinary actions in a 12-month period,

18 Defendant has allowed the non-Minority employee to continue his or her employment, has

19 transferred the employee, or has demoted the employee.

20

46. Defendant's system of subjective and arbitrary decision making and

21 allowance of unfettered discretion has an adverse impact on Minority Employees and African

22 American Lower-Level Managers relative to their non-Minority peers with respect to (a) initial

23 job assignment (as to Minority Employees only); (b) promotion to permanent and full-time

24 positions and to management; (c) compensation; and (d) discipline. This impact is not justified

25 by business necessity. Even if it could be so justified, less discriminatory alternatives exist that

26 1 Defendant guarantees its part-time employees a minimum of 17'h. 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
27 hours which an employee did not actually work are called "excess" minimum hours.
2 OLCCs are verbal warnings accompanied by a notation in a company employee database that both employee and
28 manager acknowledge in writing.

562483.2

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CASE No. C 03-2659 Sl; C 03-2878 Sl

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1 could equally serve any alleged necessity.

2

47. Defendant's requirement that applicants for promotion to Courier, Ramp

3 Transport Driver, Customer Service Agent, and Customer Representative pass a group of tests

4 known as the Basic Skills Test ("BST") has a statistically significant adverse impact on

5 Minorities that is not justified by business necessity. Even if it could be so justified, less

6 discriminatory alternatives exist that could equally serve any alleged necessity.

7

48. As a proximate result of the racially discriminatory employment practices

8 and other wrongful acts alleged herein, Plaintiffs and members of both classes have suffered loss

9 of income, loss of advancement and promotion, loss of career opportunity, and/or loss of

10 intangible job benefits.

11

49. Plaintiffs, and each of them, have experienced such racially discriminatory

12 employment practices and other racially discriminatory actions by Defendant including, without

13 limitation, the practices and actions described herein.

14

B. FedEx Express Intentionally Discriminates Against Minorities.

15

50. This pattern of denying Minority Employees and African American Lower-

16 Level Managers equal assignments, promotions, training, and compensation and of over-

17 disciplining Minority Employees and African American Lower-Level Managers, is not the result

18 of random or non-discriminatory factors. Rather, it is the result of an ongoing and continuous

19 pattern and practice of intentional race discrimination in assignments, compensation, promotions,

20 and discipline.

21

51. Defendant engages in intentional discrimination against Minority

22 Employees and African American Lower-Level Managers through its system of subjective and

23 arbitrary decision making and unfettered management discretion, with respect to (a) initial job

24 assignment (as to Minority Employees only); (b) promotion to permanent and full-time positions

25 and to management; (c) compensation; and (d) discipline, as demonstrated by anecdotal and

26 statistical evidence, as set forth in paragraphs 31-32 and 34-46, which are incorporated herein by

27 reference.

28
562483.2

52. Defendant has condoned the discriminatory conduct of its managers by

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Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 19 of 101

1 failing to properly investigate formal complaints regarding discrimination, and by promoting

2 managers who engage in acts of discrimination or transferring them to other locations despite

3 repeated complaints (and in some cases, previous discrimination lawsuits) by Plaintiffs and other

4 Minority Employees and African American Lower-Level Managers.

5

53. As a proximate result of the racially discriminatory employment practices

6 and other wrongful acts alleged herein, Plaintiffs and members of both classes have suffered loss

7 of income, loss of advancement and promotion, loss of career opportunity, and/or loss of

8 intangible job benefits.

9

54. As a proximate result of the racially discriminatory employment policies,

I 0 practices and other wrongful acts alleged herein, Plaintiffs and members of both classes have

11 experienced pain, suffering, severe emotional and mental distress, shame, humiliation,

12 embarrassment, and related physical ailments.

13

55. Plaintiffs, and each of them, have experienced such racially discriminatory

14 employment practices and other racially discriminatory actions by Defendant including, without

15 limitation, the practices and actions described herein.

16

c. FedEx Express' Operations

17

56. The Plaintiffs to this action are, or have been, employed by Defendant

18 FedEx Express in its Western Region.

19

57. Defendant FedEx Express' Western Region includes the following states:

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

21 part of Texas, Utah, Washington, and Wyoming.

22

58. Defendant employs uniform employment and personnel policies

23 throughout all its districts, regions, and/or divisions in the Western Region. Regardless of facility

24 or corporate division, there are uniform policies for employees, uniform "orientation" procedures,

25 and uniform salary, assignment, pay, training, promotion, and disciplinary policies. All facilities

26 must follow these uniform, company-wide policies and procedures.

27

59. Defendant operates numerous warehouse distribution centers in California

28 and the United States. Distribution facilities are standardized and comprised of a large warehouse

562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND
DEMAND FOR JURY TRIAL
CASE No. C 03-2659 SI; C 03-2878 Sl

Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 20 of 101

1 to which packages are delivered, sorted, stored for later delivery or pick-up, and shipped.

2

60. Defendant operates several shifts at its major distribution facilities, during

3 which packages arrive and depart the warehouse. Many thousands of packages may be handled

4 and sorted on the Line (the conveyor belt used to move packages inside a station) per hour during

5 a shift at a mid- to large-sized facility. An individual package may weigh anywhere from a few

6 ounces to 75 pounds. Crates may weigh up to 200 pounds.

7

61. Defendant employs numerous Handlers to lift, sort, scan and stack

8 packages in buckets, cans and delivery vehicles. In addition, several of the Handlers are

9 designated as "Lead" and are responsible for the coordination and efficient operation of other

10 Handlers in processing packages along a particular part of the Line.

11

62. In addition to Handlers, Defendant employs Checker/Sorters, who scan and

12 direct packages; Couriers and Swing Drivers, who operate the delivery vehicles and deliver and

13 pickup packages from customers; Shuttle Drivers, who drive shuttles or large tractor trucks to

14 pick up significant numbers of packages from institutional customers and to make trips to the

15 airport and other distribution facilities; Customer Service Agents, who interact with the public

16 and handle customer pickups and complaints; Dispatchers, who communicate with Couriers;

17 Operations Managers, who supervise the various workgroups or job classes in the Facility during

18 a shift; and Freight Handlers, Material Handlers, Ramp Agents, Ramp Area Drivers, and Ramp

19 Transport Drivers to load and unload packages and heavy freight, to transfer the cargo to and

20 from the cargo airplanes to the onsite facility for sorting or storage, and to transfer the cargo to

21 and from the large freight vehicles or smaller shuttles that transport the packages to the various

22 distribution facilities in the area, or to their ultimate destinations. FedEx also employs Dangerous

23 Goods Agents, Information Agents, Operations Agents, Service Assurance Agents, Truck Control

24 Agents, Trace Representatives, Input Auditors, and Team Leaders to assist with and coordinate

25 these operations.

26

63. The Regions for Defendant FedEx Express are headed by Vice Presidents

27 of Operations. The Districts for FedEx Express are headed by District Managers who report

28 directly to the Vice Presidents of Operations. The Districts are comprised of individual

562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND
DEMAND FOR JURY TRiAL
CASE No. C 03-2659 Sl; C 03-2878 Sl

Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 21 of 101

1 distribution/service centers in the Domestic Ground Operations ("DGO") division, and of 2 "organizations" in Air Ground Freight Services ("AGFS") division, which may correspond to a

3 single facility or to set of operations within a larger airport based facility. Both service centers

4 and organizations are run by Senior Managers, who report directly to the Managing Directors.

5 Senior Managers supervise Operations Managers, the lowest management positions.

6

64. The Vice President of Operations, the District Managers and Senior

7 Managers form the senior management ranks in a region. The various operations managers at

8 each facility form the lower management ranks.

9

65. Defendant has limited the senior and lower management ranks primarily to

10 non-Minorities in the Western Region. Defendant principally promotes from within and

11 maintains a work force with significant numbers of Minority Employees in lower level jobs. 12 Defendant, however, employs only a sparse number of Minorities in its management ranks.

13 Plaintiffs are informed and believe, and based thereon allege, that Defendant has never employed

14 a Minority as a Vice President of Operations in the Western Region. Plaintiffs are informed and 15 believe that even when Minority Employees are promoted, on average they are advanced later,

16 and then more slowly, than similarly situated non-Minority employees.

17

66. As a result of the scarcity of Minority managers in management positions

18 in the Western Region, the managerial ranks within the District are commonly known as the "Ole

19 Boys Network" or the "Country Club." Racial epithets have often been used by Defendant's

20 Senior Managers.

21

67.

The racial composition of Defendant's workforce with respect to its senior

22 and lower management ranks is grossly disproportionate to the available pool of Minority 23 workers who are qualified for positions in the senior and lower management ranks of Defendant's 24 business.

25 26 1. 27

ALLEGATIONS OF NAMED PLAINTIFFS MINORITY EMPLOYEE CLASS
Valerie Brown

28
562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND
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CASE No. C 03-2659 Sl; C 03-2878 SI

Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 22 of 101

1

A. Class Claims

2

68. Plaintiff Brown was hired by Defendant in approximately 1982 as a

3 Customer Service Agent at the distribution facility in Sunnyvale Facility and transferred to the

4 Milpitas Facility in approximately 1987 upon closure of the former facility. In approximately

5 1989, Defendant employed Plaintiff Brown as the sole African American Courier at the Milpitas

6 Facility.

7

69. In 2003, Defendant gave Plaintiff Brown written, disciplinary notations

8 regarding issues for which non-Minority Couriers were not criticized, negatively affecting her

9 performance reviews and promotability. For example, Plaintiff Brown was reprimanded for

10 calling in sick and not speaking directly with a manager, whereas non-Minority employees were

11 not disciplined when they called in sick and left messages for their managers with hourly

12 employees. Plaintiff Brown was disciplined despite the objection of her direct supervisor.

13

70. Similarly, in July 2003, Plaintiff Brown was disciplined for a customer

14 complaint without having had an opportunity to give her account of the incident. By contrast,

15 Defendant has not disciplined numerous non-Minority employees who have had customer

16 complaints made against them.

17

71. Plaintiff Brown made numerous complaints to the Station Manager and to

18 human resources regarding this racially discriminatory treatment. However, Defendant did not

19 take any action regarding the complaints, apart from questioning Plaintiff Brown.

20

72. In 1995, Defendant opened the current Santa Clara Facility and transferred

21 many of the service routes that had formerly been operated from the Milpitas Facility to the new

22 facility. In allocating the Courier routes between the two facilities, Defendant divided Plaintiff

23 Brown's route equally between the two centers. Plaintiff Brown's route was the only service route

24 that was split. All the routes for non-Minority Couriers were kept intact. In order to keep her

25 service area, Plaintiff Brown was required to transfer to the Santa Clara Facility as a part-time

26 courier, thus losing the higher full-time pay. No non-Minority employee courier was required to

27 convert to part-time status or to give up his or her route.

28
562483.2

73. Defendant engaged in race-based discrimination by passing over Plaintiff

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1 Brown in favor of more junior, less qualified non-Minority employees for various promotions and

2 higher paying positions. In the early 1990s, PlaintiffBrown applied for several sales 3 representative positions that defendant had posted to employees. Plaintiff Brown was not hired

4 for any of the sales representative positions despite her long service with Defendant. Instead,

5 Defendant hired numerous non-Minority recent graduates, with little or no experience, and other 6 non-Minority employees from within the company. With her seniority, PlaintiffBrown should

7 have been hired; the advertisements for the positions indicated that prior sales experience was not

8 a requirement since the Company would provide necessary training.

9

74. Similarly, in 2000, Plaintiff Brown applied for two higher paying Dispatch

10 positions at the Oakland Station and the Oakland Hub. However, Plaintiff Brown did not get

11 either position. Once again, Defendant passed over her in favor of more junior, less qualified non-

12 Minority employees.

13

75. In January 2001 and February 2002, Plaintiff Brown applied for Operations

14 Manager positions at the Santa Clara Facility and the RHV Facility in San Jose, respectively. In

15 each case, Defendant promoted a non-African American to the position despite the fact that the

16 non-African American had significantly less seniority than Plaintiff Brown and only Courier

17 experience. Plaintiff Brown had Courier, acting Dispatcher, and Customer Service Agent

18 experience and had been with the Company since 1982.

19

76. Plaintiff Brown is also informed and believes, and thereupon alleges, that

20 she has been compensated less than similarly situated non-Minorities.

21

B. Individual Claims for Harassment and Retaliation

22

77. While Plaintiff Brown was a Courier at the Milpitas Facility, Defendant

23 discriminated against her on the basis of race, saddling her with greater responsibilities than her

24 non-Minority colleagues and thus making it more difficult for her to perform as well as them. 25 Defendant required Plaintiff Brown to deliver packages on her route, as well as perform overflow

26 responsibilities and make additional trips to pick up freight left by other Couriers. Defendant did

27 not require Plaintiff Brown's non-Minority colleagues to perform these additional duties.

28
562483.2

78. Defendant harassed Plaintiff Brown by criticizing her in a manner that was

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Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 24 of 101

I publicly embarrassing and humiliating. Instead of criticizing Plaintiff Brown in the privacy of an

2 office as they did with non-Minority employees, Defendant would stop the conveyor belt to draw

3 attention and criticize Plaintiff Brown while she was working among others on the Line.

4

79. In July 2002, Defendant retaliated against Plaintiff Brown for filing a racial

5 discrimination complaint with the Department of Fair Employment and Housing. In response to 6 PlaintiffBro~n's complaint, Defendant disciplined Plaintiff Brown more harshly than her non-

7 Minority colleagues. Defendant disciplined Plaintiff Brown in response to a customer complaint

8 but did not discipline the non-Minority employees also mentioned in the complaint.

9

80. In addition to the foregoing, Plaintiff Brown has experienced disparate

I 0 treatment on the basis of race with respect to many employment practices by Defendant.

11

81. Plaintiff Brown filed a timely charge of discrimination with the EEOC on

12 Aprill6, 2003, attached hereto as Exhibit "A," which was automatically cross-filed with the

13 DFEH. Plaintiff Brown has received Notices of Right to Sue from the EEOC and from the

14 DFEH.

15

Rick Gonzales

16

A. Class Claims

17

82. Plaintiff Rick Gonzales is a Latino male who was employed by Defendant

18 FedEx Express as a Courier from May 1998 until September 2002.

19

83. Defendant has undermined Plaintiff Gonzales' attempts to attain

20 management positions, while actively supporting non-Minority candidates in their efforts to

21 secure management positions. Defendant never discussed or provided guidance to Plaintiff

22 Gonzales about the possibility or process of entering management, although he had expressed his

23 desire to advance to management several times. Further, Defendant did not offer him the support

24 provided non-Minority employees in preparing for management, such as training him on

25 computer systems or discussing a manager's operational responsibilities. Defendant's

26 discriminatory management selection practices discouraged Plaintiff Gonzales from applying for

27 management positions.

28
562483.2

84. Plaintiff Gonzales observed that non-Minority employees were promoted

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THIRD CONSOLIDATED AMENDED COMPLAINT AND
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1 to management faster than Minority Employees, and that management steered non-Minority

2 employees into management positions. For example, during Plaintiff Gonzales' 5-year tenure at

3 Defendant's Santa Fe Springs location, several non-Minority employees became managers, while

4 only one Minority entered management. The Minority Employees were consistently given the

5 worst shifts, working at night with the newest employees. Plaintiff Gonzales observed less senior

6 non-Minority employees being promoted to management before him even though he was equally

7 if not more qualified for the positions that were open, but he did not observe his Minority peers

8 attain management positions.

9

85. Defendant has further discriminated against Plaintiff Gonzales by engaging

10 in discriminatory employment practices intended to and/or having the effect of undermining

11 Plaintiff Gonzales' efforts to advance into Defendant's management ranks. In August 2002,

12 Defendant refused to allow PlaintiffGonzales to participate in ASPIRE, its management training

13 program, because his performance review rating was 3/10 of a point below the alleged cutoff.

14 . Plaintiff Gonzales believes that Defendant manipulates such subjective and discretionary criteria

15 in order to control who may become eligible for management. However, Plaintiff Gonzales is

16 informed and believes that Defendant has permitted non-Minority employees to participate in

17 management training with performance review scores lower than that of Plaintiff Gonzales.

18

86. Defendant has discriminated against Plaintiff Gonzales by disciplining him

19 for infractions for which non-Minority employees were not similarly disciplined. For example,

20 Plaintiff Gonzales has received multiple OLCC's and warning letters for infractions such as

21 incorrect calculations, packages not returned, and timecard errors. In contrast, his non-Minority

22 peers were rarely disciplined for such conduct.

23

87. Plaintiff Gonzales is also informed and believes, and thereupon alleges,

24 that he has been compensated less than similarly situated non-Minorities.

25

B. Individual Claim for Failure to Rehire from Disability

26

88. Defendant discriminated against Plaintiff Gonzales by failing to assist him

27 in securing a suitable position upon return from workers compensation leave. After Plaintiff

28 Gonzales was injured on the job for the second time with a severe lower back injury, he required

562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND
DEMAND FOR JURY TRIAL
CASE No. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 26 of 101

1 an extended leave. When he prepared to return to work, Defendant displaced him from his prior 2 position and refused to identify a suitable position for him anywhere in Southern California, 3 despite Plaintiff Gonzales' 12-year tenure and his offer to accept any position available, including 4 those requiring relocation to Los Angeles or Las Vegas. Instead, Defendant sent Plaintiff 5 Gonzales a termination letter on approximately September 13, 2002. Defendant has routinely 6 assisted non-Minority employees who have suffered permanent and temporary disabilities to find

7 suitable job opportunities with FedEx.

8

89. In addition to the foregoing, Plaintiff Gonzales has experienced disparate

9 treatment on the basis of race with respect to many employment practices by Defendant.

10

90. Plaintiff Gonzales filed a timely charge of discrimination with the EEOC

11 on Aprill5, 2003, attached hereto as Exhibit "B," which was automatically cross-filed with the

12 DFEH. Plaintiff Gorizales has received Notices of Right to Sue from the EEOC and from the

13 DFEH.

14

Cynthia Guerrero

15

A Class Claims

16

91. Defendant hired Plaintiff Guerrero in approximately 1995. Plaintiff

17 Guerrero worked for Defendant in Commerce City and Santa Fe Springs, California as a

18 Customer Service Agent and as a Courier.

19

92. Among other things, Defendant discriminated against Plaintiff Guerrero by

20 failing to promote her to positions for which she was qualified and instead promoting less senior,

21 less qualified non-Minority employees over her, and/or by paying Plaintiff Guerrero less than

22 non-Minority employees, even though Plaintiff Guerrero has comparable responsibilities and

23 more seniority and work experience. Plaintiff Guerrero was paid at the Courier/Handler rate until

24 late 2002, even though she was performing the work of a regular Courier. The difference in pay

25 between the two positions is about $1/hour. The difference in job responsibilities is that

26 Courier/Handlers cannot exceed 8 stops per hour, while Couriers can. Plaintiff Guerrero was

27 often doing 18 stops per hour.

28
562483.2

93. Upon beginning to perform the duties of a Courier, Plaintiff Guerrero

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I asked Defendant when she would be upgraded to Courier pay. Defendant told Plaintiff Guerrero

2 she could not be upgraded immediately because of a hiring freeze, but that she wouldn't have to

3 wait more than a month. In fact, Plaintiff Guerrero was not upgraded until late 2002, after she

4 filed her EEOC charge. Meanwhile, Plaintiff Guerrero's non-Minority colleagues did receive the

5 upgrade.

6

94. Defendant also discriminated against Plaintiff Guerrero by reducing her

7 work hours, thus negatively affecting her compensation, while increasing the work hours given to

8 non-Minority employees with less seniority.

9

95. Defendant further discriminated against Plaintiff Guerrero by issuing

I0 formal disciplinary actions against her for petty or trivial matters, or matters unsupported or

II contradicted by credible evidence. Defendant has given Plaintiff Guerrero over 50 calendar

12 notations for trivial matters such as failure to pull an airbill copy or forgetting to sign her time

13 card, for which non-Minority employees are not disciplined. In fact, Defendant routinely

14 overlooks late arrival, no-shows, and other more significant breaches of conduct by non-Minority

15 employees.

16

96. Defendant has systematically discriminated against the employees in

17 Plaintiff Guerrero's workgroup, called Loop 9, all of whom are Minority Employees.

18

97. Plaintiff Guerrero is also informed and believes, and thereupon alleges, that

19 she has been compensated less than similarly situated non-Minorities.

20

B. Individual Claim for Retaliation

21

98. Defendant has also retaliated against Plaintiff Guerrero for complaining

22 about race-based discrimination. Most recently, in July 2004, Defendant effectively terminated

23 Plaintiff Guerrero. When Plaintiff Guerrero sought to clarify her employment status, which she

24 had previously been informed was "inactive" due to long-term disability leave, Plaintiff Guerrero

25 was informed that her employment was instead terminated due to her failure to find an alternative

26 position with Defendant after she had been displaced.

27

99. In addition to the foregoing, Plaintiff Guerrero has experienced disparate

28 treatment on the basis of race with respect to many employment practices by Defendant.

562483.2

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CASE No. C 03-2659 Sl; C 03-2878 Sl

Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 28 of 101

1

100. Plaintiff Guerrero filed timely charges of discrimination with the EEOC on

2 June 13, 2002 and June 18, 2003, attached hereto as Exhibit "C," which were automatically

3 cross-filed with the DFEH. Plaintiff Guerrero has received Notices of Right to Sue from the

4 EEOC and from the DFEH.

5

Rachel Hutchins

6

A. Class Claims

7

101. Plaintiff Rachel Hutchins is an African American woman formerly

8 employed by Defendant as a Handler in Bakersfield, California. Plaintiff worked for Defendant

9 from December 1995 through Aprill996, and again from March 2001 through January 2004.

10

102. Defendant hired and/or promoted less senior, less experienced non-

11 Minority individuals to permanent or full-time positions, whereas Plaintiff Hutchins remained a

12 casual Handler during her more than two and a half years with Defendant.

13

103. Defendant passed over Plaintiff in favor ofless or equally qualified non-

14 Minority individuals in filling positions for which Plaintiff applied. Starting in approximately

15 October 2002, Plaintiff Hutchins sought a position as a Customer Service Agent (CSA). From

16 approximately May or June 2002 to April2003, Plaintiff Hutchins performed the duties of a

17 Customer Service Agent, without a commensurate change in title or salary. Although Customer

18 Service Agent positions became available, Defendant did not place Plaintiff Hutchins in these

19 positions.

20

104. Plaintiff Hutchins complained several times to Defendant about its failure

21 to promote her to a Customer Service Agent position. Defendant offered various excuses for this

22 failure, including that Plaintiff Hutchins could not be promoted from Casual status. However,

23 Defendant promoted non-Minority employees to permanent Customer Service Agent and Courier

24 positions from Casual status. In one such instance, two Customer Service Agent positions

25 became available in approximately November 2002, and Defendant informed Plaintiff Hutchins

26 that she would receive one of the positions. Instead, however, Defendant placed in one of the

27 positions a non-Minority employee who had no experience as a Customer Service Agent, whom

28 Plaintiff Hutchins herself had trained, and who had quit her job a few weeks previously.

562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
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Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 29 of 101

1

105. In April2003, Defendant informed Plaintiff Hutchins that she would

2 receive the next Customer Service Agent position that opened, without being required to apply.

3 From approximately May 2003, a Customer Service Agent position was available. Although

4 Plaintiff was qualified, Defendant still did not place Plaintiff Hutchins in a Customer Service

5 Agent position.

6

106. Defendant has discriminated against Plaintiff Hutchins with respect to

7 compensation by paying her as a Handler, while requiring her to perform the duties of a Customer

8 Service Agent. Defendant refused to offer Plaintiff Hutchins a Customer Service Agent position,

9 or to change her title or compensation to reflect her additional duties.

10

107. Defendant also discriminated against Plaintiff Hutchins with respect to

11 compensation by failing to pay her correctly for hours worked on Saturday over an approximately

12 two month period. Plaintiff Hutchins was informed and believes that according to FedEx policy,

13 temporary and casual employees are to be paid at the rate of one and a half times their hourly rate 14 for work performed on Saturday. Plaintiff is informed and believes, and on that basis alleges, that

15 non-Minority employees have been paid at the higher rate for such hours. Defendant has further

16 discriminated against Plaintiff Hutchins with respect to compensation by allowing her to work

17 fewer hours than similarly situated non-Minority employees, and by relegating her to casual

18 status. 19

108. P1aintiffHutchins is also informed and believes, and thereupon alleges, that

20 she has been compensated less than similarly situated non-Minorities.

21

B. Individual Claims for Termination and Retaliation

22

109. Defendant retaliated against Plaintiff Hutchins for filing a charge of

23 discrimination with the EEOC and for participating in this lawsuit by wrongfully terminating

24 Plaintiff Hutchins on January 20, 2004.

25

110. In addition to the foregoing, Plaintiff Hutchins has experienced disparate

26 treatment on the basis of race with respect to many employment practices by Defendant.

27

111. Plaintiff Hutchins filed a timely charge of discrimination with the EEOC

28 on May 27, 2003, attached hereto as Exhibit "D," which was automatically cross-filed with the

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I DFEH. Plaintiff Hutchins has received Notices of Right to Sue from the EEOC and from the

2 DFEH. Plaintiff Hutchins supplemented this charge with a retaliation claim on August 16, 2004

3 and has received a Notice of Right to Sue on her supplemental charge.

4

Tyrone Merritt

5

A. Class Claims

6

112. Plaintiff Tyrone Merritt is an African American male employed by FedEx

7 Express since September 1998. Plaintiff Merritt worked in FedEx Express's Phoenix, Arizona

8 facility from the fall of 200 I through the summer of 2005. During that time, Plaintiff Merritt

9 worked as a permanent part-time Material Handler.

10

113. During his tenure as a part-time Material Handler in Phoenix, Plaintiff

II Merritt was passed over for numerous promotions, including promotions to the position of

12 Courier. Plaintiff Merritt was not able to apply for a Courier promotion because he failed the

13 Basic Skills Test ("BST") in February 2003 and again in May 2005. The BST is a requirement

14 for promotion to Courier positions even though it has tremendous adverse impact and has not

15 been validated.

16

114. Plaintiff Merritt has also been passed over for promotions to other

17 positions, including positions as a Dispatcher, full-time Material Handler, Ramp Agent, and Team

18 Leader, all of which were given to similarly situated white employees. PlaintiffMerritt was also

19 passed over for two Dangerous Goods Specialist positions, which were both filled by white

20 applicants with less seniority than Plaintiff Merritt.

21

115. Plaintiff Merritt has also been subjected to harsher discipline than similarly

22 situated white employees. For example, in approximately February 2004, Plaintiff Merritt was

23 reprimanded by his manager for a "drop can" violation because a can containing packages fell

24 from his dolly. Plaintiff Merritt is aware of two white employees who dropped cans from their

25 dollies, but received no reprimands.

26

116. PlaintiffMerritt has also been denied fair compensation because ofFedEx

27 Express' racially biased policies and practices.

28
562483.2

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I

B. Individual Claim for Denial of Leave Without Pay

2

117. Plaintiff Merritt was denied leave without pay ("LWOP") in mid-2004,

3 while similarly situated white employees were permitted to take LWOP.

4

118. In addition to the foregoing, Plaintiff Merritt has experienced disparate

5 treatment on the basis of race with respect to many employment practices by Defendant.

6

119. Plaintiff Merritt filed a timely charge of discrimination with the EEOC on

7 December 2, 2004, and a supplemental charge on July I, 2005, both attached hereto as

8 Exhibit "E." Plaintiff Merritt has received a Notice of Right to Sue from the EEOC.

9

Kelvin Smith, Sr.

10

A Class Claims

11

120. Defendant hired Plaintiff Smith in approximately November 1989 as a

12 part-time Courier at the Santa Clara Facility. From approximately July 2000 until July 2002,

13 Plaintiff Smith was employed as a part-time Lead Handler at the Santa Clara Facility.

14

121. From April 2002 through July 2002, Plaintiff Smith acted as Operations

15 Manager for PM Sort Operations at his Facility. His duties included closing down the facility,

16 covering sick calls, enlisting Couriers to help loading, assuring that freight got on shuttles in time,

17 guiding the movement of trucks within the Facility, and coordinating the activities of Handlers,

18 Loaders and Dispatchers. The only management function that Plaintiff Smith did not perform

19 was providing performance reviews. Repeatedly, Plaintiff Smith requested that Defendant permit

20 him to complete the management training program and enable him to promote to open Operations

21 Manager positions. Defendant failed to assist Plaintiff Smith.

22

122. Defendant undermined Plaintiff Smith's efforts to obtain management

23 training while actively supporting non-Minority candidates in their efforts to secure management

24 training. Plaintiff Smith participated in the ASPIRE management training program, successfully

25 completed the program's required tests and assessments, and not only met but exceeded the

26 performance review requirements. However, Defendant failed to allow Plaintiff Smith to

27 complete the final part of the program, a peer assessment that had to be scheduled by

28 management. From April2002 through July 2002, Plaintiff Smith's managers ignored his

562483.2

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1 repeated requests to complete the peer review section. By contrast, Defendant consistently

2 assisted less senior and less experienced non-Minority ASPIRE participants in completing the

3 program, thereby permitting them to apply for management positions for which Plaintiff Smith

4 remained ineligible because of Defendant's failures.

5

123. Defendant discriminated against Plaintiff Smith by paying him less than

6 less senior and/or similarly situated non-Minority employees. Defendant paid Plaintiff Smith less

7 than less experienced non-Minority Lead Handlers, even when Plaintiff Smith was required to

8 perform management duties for the PM operations.

9

124. Defendant provided inferior training to Plaintiff Smith compared with

10 similarly situated non-Minority employees. While Plaintiff Smith was acting as an Operations

11 Manager from April2002 to July 2002, Defendant failed to provide Plaintiff Smith with the level

12 of training provided to Plaintiff Smith's non-Minority peers with respect to particular operational

13 indices in Plaintiff Smith's facility.

14

125. Defendant discriminated against Plaintiff Smith by disciplining him for

15 infractions for which non-Minority employees were not similarly disciplined. In February 2002,

16 Defendant issued Plaintiff Smith his first warning letter for administering a makeshift procedure

17 to assure that the Facility would meet performance objectives. Plaintiff Smith was also

18 suspended for a week. Plaintiff Smith had performed the procedure only upon directives from his

19 non-Minority Manager and Station Manager. However, Defendant did not discipline, either

20 verbally or with warning letters, the two non-Minority managers responsible for implementing the

21 Astra Sops procedure. African American Plaintiff Satchell was the only other person disciplined

22 in the matter. Similarly, Defendant has not disciplined non-Minority employees for actions taken

23 as a result of management directives.

24

126. In May 2002, Plaintiff Smith was again unfairly disciplined when a delay

25 caused freight to arrive late at the ramp. The non-Minority manager responsible for the delay was

26 not disciplined.

27

127. In July 2002, Defendant issued Plaintiff Smith a disciplinary warning letter

28 for a trivial time card oversight that had no practical impact on Plaintiff Smith's wages and that

562483.2

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1 was identified on the same day before any processing. Defendant routinely allows non-Minority

2 employees or managers to correct identified mistakes on timecards.

3

128. In this particular case, Plaintiff Smith failed to clock an authorized ten-

4 minute break to collect his children from daycare. Plaintiff Smith's Station Manger, upon seeing

5 Plaintiff Smith with his children, took it upon herself to instruct Plaintiff Smith's manager to

6 check his timecard to see if Plaintiff Smith had clocked his break. The Station Manager did not

7 permit Plaintiff Smith to correct the mistake, even though non-Minority employees routinely

8 correct mistakes on time cards. Non-Minority Employees also routinely take breaks without

9 indicating them by time codes on their time cards. Defendant does not strictly police every

10 movement of non-Minority employees, nor do Station Managers concern themselves with such

11 employee matters that are more properly handled by an Operations Manager. Finally, Defendant

12 is liberal in accommodating childcare concerns of non-Minority employees, especially when such

13 accommodation has, as in the case of Plaintiff Smith, no material impact on the employee's job

14 performance.

15

129. Plaintiff Smith is also informed and believes, and thereupon alleges, that he

16 has been compensated less than similarly situated non-Minorities.

17

B. Individual Claims for Termination and Retaliation

18

130. In July 2002, Defendant wrongfully terminated Plaintiff Smith for the same

19 trivial time card oversight for which Plaintiff Smith was issued a warning letter.

20

131. In June 2002, prior to his termination, Plaintiff Smith filed a complaint

21 with the Department of Fair Employment and Housing for racial discrimination and harassment.

22 Subsequently, Plaintiff Smith filed an filed an internal discrimination complaint, as well as a

23 Guaranteed Fair Treatment ("GFT") request in connection with his discriminatory discipline and

24 wrongful termination claims dating from February 2002 through Plaintiff Smith's termination in

25 July 2002. As part of his appeal, Plaintiff Smith submitted facts supporting his claims of

26 differential treatment and discrimination at the hands of Defendant. However, Defendants

27 retaliated against Plaintiff for filing discrimination charges with the DFEH by refusing to permit

28 him to participate in the GFT proceedings when he appeared for the Step II meeting.

562483.2

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1

132. In August 2002, Defendant further retaliated against Plaintiff Smith by

2 refusing to rehire Plaintiff Smith to his position as Lead Handler when it upheld its discriminatory

3 discipline and wrongful termination actions against him as part of the GFT process. Defendant

4 has overturned unfair actions and rehired non-Minority employees upon the basis of much less

5 credible information than that provided by Plaintiff Smith.

6

133. In addition to the foregoing, Plaintiff Smith has experienced disparate

7 treatment on the basis of race with respect to many employment practices by Defendant.

8

134. Plaintiff Smith filed a timely charge of discrimination with the EEOC on

9 June 24, 2003, which was automatically cross-filed with the DFEH, and filed a separate timely

10 charge with the DFEH on July 22, 2002. These charges are attached hereto as Exhibit "F."

11 Plaintiff Smith has received Notices of Right to Sue from the EEOC and from the DFEH.

12

Ken Stevenson

13

A. Class Claims

14

135. Plaintiff Stevenson is an African American male currently employed by

15 Defendant as an Operations Manager in Compton, California. Plaintiff Stevenson began working

16 for Defendant in approximately May 1997 as a casual, part-time Courier.

17

136. Defendant consistently undermined Plaintiff Stevenson's efforts to attain

18 management positions, while actively supporting non-Minority employees in their attempts to

19 enter management. Prior to his promotion to Operations Manager in 2005, Plaintiff Stevenson

20 had sought to apply for promotion more than ten times, without success. Rather than respond to

21 Plaintiff Stevenson's multiple efforts to secure a management position, Defendant offered

22 baseless excuses for its failure to promote him. For example, Senior Manager Mike Smith told

23 Plaintiff Stevenson that he must complete management classes, but when Plaintiff indicated his

24 willingness to begin management classes, Smith postponed the classes, and then only held them

25 intermittently. On other occasions, Defendant told Plaintiff Stevenson there was a "hiring

26 freeze." Meanwhile, Defendant promoted other less senior non-Minority employees over

27 Plaintiff Stevenson, such as Tim Becker and Mike Aroz, notwithstanding the fact that Plaintiff

28 Stevenson received a higher management assessment.

562483.2

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1

137. Defendant also required Plaintiff Stevenson to attend management classes

2 on his own time, while non-Minority employees, such as Becker and Aroz, were allowed to

3 attend them during work time.

4

138. Smith further told Plaintiff Stevenson that he would never be a manager as

5 long as Smith worked at the facility. Plaintiff Stevenson's co-workers told him they have heard

6 similar comments from Smith and others about Plaintiff Stevenson.

7

139. Defendant has discriminated against Plaintiff Stevenson by disciplining

8 him for infractions for which non-Minority employees were not similarly disciplined. For

9 example, Defendant has disciplined Plaintiff Stevenson for failing to tuck in his shirt, but

10 Defendant refuses to purchase shirts big enough for Plaintiff Stevenson. Defendant has further

II used such petty infractions as barriers to Plaintiff Stevenson's promotion into management. For

12 example, on May 8, 2003, Defendant informed Plaintiff Stevenson that he could not apply for a

13 vacant manager position because his socks were too short. When Plaintiff Stevenson pointed out

14 that Mike Aroz, a non-Minority employee, wore his socks in an identical fashion, Defendant

15 simply instructed Aroz to change his socks, but did not prevent him from applying for the

16 manager position. Aroz became a manager approximately two weeks later.

17

140. Plaintiff Stevenson is also informed and believes, and thereupon alleges,

18 that he has been compensated less than similarly situated non-Minorities.

19

B. Individual Claim for Harassment

20

141. Defendant has used, or permitted others to use, offensive racial epithets in

21 Plaintiff Stevenson's workplace. For example, when Plaintiff Stevenson's car was stolen,

22 Operations Manager Shelley Humphrey stated, "You people drive those kind of cars." When

23 Plaintiff Stevenson reported the comment to his supervisor, Reiger Fleud, Fleud said, "We all

24 have a little racism in us." When Plaintiff Stevenson filed an internal EEO complaint about these

25 comments, Defendant retaliated against him by further blocking him from being promoted to

26 management.

27

142. In addition to the foregoing, Plaintiff Stevenson has experienced disparate

28 treatment on the basis of race with respect to many employment practices by Defendant.

562483.2

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1

143. Plaintiff Stevenson filed a timely charge of discrimination with the EEOC

2 on June 13, 2002, attached hereto as Exhibit "G," which was automatically cross-filed with the

3 DFEH. Plaintiff Stevenson has received Notices of Right to Sue from the EEOC and from the

4 DFEH.

5 II. 6

AFRICAN AMERICAN LOWER-LEVEL MANAGER CLASS Derrick Satchell

7

A. Class Claims

8

144. Plaintiff Satchell was hired by Defendant FedEx Express in approximately

9 June 1992 as a part-time Handler at Defendant's Facility in Santa Clara, California. Despite

10 repeated requests by Plaintiff Satchell for full-time employment, Defendant hired and/or

11 promoted less senior, less experienced non-Minority individuals to Courier and other full-time

12 positions before Defendant gave Plaintiff Satchell a full-time position.

13

145. Once Plaintiff Satchell finally obtained a position as an Operations

14 Manager, Defendant also consistently issued formal disciplinary actions against Plaintiff Satchell

15 for petty or trivial matters for which non-Minority employees were not disciplined, thus lowering

16 Plaintiff Satchell's performance reviews and rendering him ineligible for promotion.

17

146. Defendant discriminated against Plaintiff Satchell by paying him less than

18 less senior and/or similarly situated non-Minority employees. Throughout Plaintiff Satchell's

19 employment with FedEx, Defendant paid Plaintiff Satchell less than non-Minority managers even

20 though Plaintiff Satchell had comparable responsibilities and more seniority and management

21 expenence.

22

147. In approximately December 1999, when Plaintiff Satchell was a Courier

23 Operations Manager, Plaintiff Satchell received his first warning letter for excessive late

24 deliveries by Couriers on Mondays. Defendant disciplined Plaintiff Satchell despite the fact that

25 the problem dated back to a prior Operations Manager's tenure and that the late deliveries were

26 occurring only on Plaintiff Satchell's scheduled day off. Defendant has not reprimanded non-

27 Minority managers, much less given warning letters, where the non-Minorities were not directly

28 responsible for the infraction. In addition, Defendant had not disciplined the non-Minority

562483.2

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1 manager who supervised the workgroup prior to Plaintiff Satchell.

2

148. In approximately August 2001, Defendant disciplined Plaintiff Satchell for

3 insubordination for failure to submit, in a timely manner, an action plan for correcting a

4 deficiency in his operations. Plaintiff Satchell failed to submit the action plan on time because

5 Defendant had not properly notified Plaintiff Satchell of his need to submit the Plan. Plaintiff

6 Satchell was required to work through the night to prepare the plan and submitted it a day late.

7 Defendant disciplined Plaintiff Satchell even though he had proof that other non-Minority

8 managers were also failing in the cited area, but were not required to submit similar Action Plans

9 and were not otherwise disciplined.

10

149. Defendant disciplined Plaintiff Satchell again in November 2001 in

11 connection with his performance review. Defendant gave Plaintiff Satchell a written performance

12 reminder after rating his performance as 1.0 in one area of the review due to Plaintiff Satchell's

13 group's failure to improve in that area. Plaintiff Satchell's Senior Manager, Christopher

14 Matthews, refused to alter the low rating when Plaintiff Satchell produced emails from Matthews

15 commending Plaintiff Satchell's group for improvement in the area in question, and stating

16 "excellent job; now you only need to maintain it." Defendant's personnel policy states that

17 disciplinary letters should not be issued where only one or two areas of a review are deficient; a

18 performance reminder is warranted only if an entire performance review is 1.0 or below.

19 Defendant does not issue performance reminders to non-Minority managers regarding

20 performance reviews unless the entire review is unsatisfactory. Further, Defendant does not issue

21 performance reminders to non-Minorities who provide evidence contradicting an allegation of

22 unsatisfactory performance.

23

150. On December 1, 2001, Plaintiff Satchell met with District Director Steven

24 Seymour regarding the performance reminder. Seymour assured Plaintiff Satchell that the letter

25 would not be entered in the system. Based on Seymour's assurance, Plaintiff Satchell did not

26 purse the Guaranteed Fair Treatment ("GFT") process further. When Defendant terminated

27 Plaintiff Satchell's employment in April2002 for three active, documented disciplinary actions,

28 the warning letter in question was counted toward the three.

562483.2

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CASE No. C 03-2659 SI; C 03-2878 SI

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1

151. In November 2001, Defendant gave Plaintiff Satchell an OLCC because he

2 had failed to cancel excess minimum hour pay for Couriers in his group who had not actually

3 worked the minimum number of hours. At the time, Plaintiff Satchell informed Defendant that

4 canceling the minimum without a waiver would violate policy. In December 2001, Seymour and

5 Matthews informed managers at the Santa Clara Facility that they wanted excess minimum hours

6 cancelled regardless of waivers. Again, Plaintiff Satchell objected, citing policy, but cancelled

7 the hours anyway. Plaintiff Satchell was issued a warning letter, however, because he

8 inadvertently failed to cancel the excess minimum hours of a few couriers. Whereas Defendant

9 issued Plaintiff Satchell a warning letter for his inadvertent failure to cancel payment for excess

I 0 minimum hours, Defendant refused to issue warning letters to non-Minority managers, such as

11 Paul Birkenbach, who also failed a second time to cancel excess minimum hours.

12

152. In March 2002, Defendant issued Plaintiff Satchell another warning letter

13 for unacceptable conduct. The basis for the warning letter was Plaintiff Satchell's knowledge that

14 employees in his workgroup were violating scanning procedures by inputting ASTRA scans into

15 Defendant's package tracking system for packages that had already left the facility. The

16 employees had been directed to perform such procedures by the Senior Manager, Chris Matthew,

17 and the non-Minority manager who previously supervised the group prior to Plaintiff Satchell

18 assuming responsibility. Upon taking over the group, Plaintiff Satchell had objected to the

19 practice; however, he was directed by Matthew to permit the employees to continue the practice

20 to help the station meet district operating goals. Even though other, non-Minority managers

21 assisted with the ASTRA scanning practice, Defendant did not issue them warning letters.

22

153. Plaintiff Satchell is also informed and believes, and thereupon alleges, that

23 he has been compensated less than similarly situated non-Minorities.

24

B. Individual Claims for Failure to Promote, Termination, and

Retaliation

25

154. Defendant undermined Plaintiff Satchell's efforts to advance within

26

management, while actively supporting his non-Minority peer managers in their efforts to

27

advance within management. Defendant discriminated against Plaintiff Satchell by failing to

28

562483.2

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I advance or promote Plaintiff Satchell from a Level 25 to Level 26 Operations Manager during his

2 employment with the Company. Plaintiff had satisfied all the requirements for a Level 26

3 promotion, including having been in a Level 25 manager position for over 18 months and having

4 received successive performance reviews in excess of 3.0. By contrast, Defendant promoted

5 numerous non-Minority Operations Managers to Level26 who joined management after Plaintiff

6 Satchell and had received equal or lower performance reviews.

7

!55. Defendant excluded Plaintiff Satchell from "informal" email buddy lists

8 used by Regional, District and Station Managers to communicate relevant operating procedures

9 and corporate advancement opportunities and to informally discuss managerial issues.

10

156. Defendant provided inferior training to Plaintiff Satchell compared with

II similarly situated non-Minority employees, adversely affecting his ability to obtain a promotion.

12 Defendant failed to provide Plaintiff Satchell with the level of training provided to Plaintiff

13 Satchell's non-Minority peer managers with respect to particular operational indices in Plaintiff

14 Satchell's facility. Defendant also failed to sufficiently staffPlaintiffSatchell's workgroup so

15 that objectives could be met in accordance with Defendant's expectations. By contrast,

16 Defendant provided Plaintiff Satchell's non-Minority peer managers with proper staffing or

17 assigned employees from other workgroups to assist the workgroups of non-Minority employees.

18

!57. In March 2002, Defendant discriminated against Plaintiff Satchell by

19 terminating Plaintifffor "gross leadership failure" based on conduct for which non-Minority

20 employees were not similarly terminated. The nature of the alleged "gross leadership failure"

21 was Plaintiff Satchell's knowledge of the ASTRA scanning procedures for which he also received

22 a warning letter.

23

!58. Defendant retaliated against Plaintiff Satchell for complaining of

24 discrimination. In April 2002, Plaintiff Satchell filed an internal EEO complaint and a

25 Guaranteed Fair Treatment ("GFT") request, in connection with his discriminatory discipline and

26 wrongful termination claims dating from August 2001 through termination in April 2002.

27 Plaintiff Satchell included in his complaints facts supporting his claims of differential treatment

28 and discrimination at the hands of Defendant. In June 2002, Plaintiff Satchell also filed a

562483.2

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1 complaint with the California Department of Fair Employment and Housing for racial

2 discrimination and harassment.

3

159. On August 28, 2002, Defendant retaliated against Plaintiff Satchell by

4 refusing to rehire him as an Operations Manager after an Appeals Board in Memphis, Tennessee

5 refused to overturn its discriminatory discipline and wrongful termination actions. Defendant has

6 rehired and overturned unfair actions against non-Minority employees upon the basis ofmuch

7 less credible information than that provided by Plaintiff Satchell.

8

160. In December 2002, Plaintiff Satchell filed a civil complaint for race

9 discrimination in Superior Court. In response to Plaintiff Satchell's complaints, Defendant has

I 0 engaged in a pattern of making defamatory statements against Plaintiff Satchell to employers

11 seeking to hire Plaintiff Satchell. As a result of Defendant's defamatory statements, Plaintiff

12 Satchell had great difficulty in securing employment after his termination by Defendant. On

13 numerous occasions, prospective employers successfully completed several rounds of interviews

14 with Plaintiff Satchell, commended Plaintiff Satchell on his presentation and employment record,

15 indicated satisfaction with his references, and provided Plaintiff Satchell with strong indication of

16 their interest in employing him. However, upon speaking with or receiving letters from

17 Defendant regarding Plaintiff Satchell, the employers declined to hire Plaintiff Satchell. In June

18 2002, Airborne Express declined to hire Plaintiff Satchell after Defendant defamed Plaintiff

19 Satchell in retaliation for filing a complaint. Yellow Transportation similarly declined to hire

20 Plaintiff Satchell after Defendant's retaliatory actions. Further, after speaking with Defendant in

21 December 2002, Coca-Cola Company refused to hire Plaintiff Satchell after 6 successful

22 interviews from August 2002 to December 2002.

23

161. In addition to the foregoing, Plaintiff Satchell has experienced disparate

24 treatment on the basis of race with respect to many employment practices by Defendant.

25

162. Plaintiff Satchell filed a timely charge of discrimination with the EEOC on

26 May 6, 2003, attached hereto as Exhibit "H," which was automatically cross-filed with the

27 DFEH. Plaintiff Satchell has received Notices of Right to Sue from the EEOC and the DFEH.

28
562483.2

Kalini Boykin

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THIRD CONSOLIDATED AMENDED COMPLAINT AND
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Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 41 of 101

I

A. Class Claims

2

163. PlaintiffBoykin was hired by Defendant in approximately May 1995 as a

3 casual, part-time Handler at the Oakland Hub. Despite repeated requests for available permanent

4 and full-time positions, Defendant hired and/or promoted many less senior non"Minority

5 individuals to permanent positions before Defendant gave Plaintiff Boykin a permanent position.

6 For example, in approximately June 1997, PlaintiffBoykin applied for the full-time position of

7 Control Room Agent at the Oakland Hub; however, Defendant passed her over in favor of a

8 subsequently hired and less experienced, non-African American.

9

164. PlaintiffBoykin also interviewed for numerous other full-time positions

10 before she was finally promoted to a full-time Truck Control Agent position in January 1998.

11 Other non-Minority employees with similar qualifications and experience were promoted to this

12 position sooner than PlaintiffBoykin.

13

165. PlaintiffBoykin also was rarely permitted to earn overtime hours, while

14 non-Minority employees were permitted to work overtime when necessary, earning wages at the

15 higher overtime rate.

16

166. In 1999, PlaintiffBoykin was promoted to an RTD Driver position after

17 several unsuccessful attempts to obtain the promotion despite being qualified. As in her previous

18 positions, PlaintiffBoykin excelled as an RTD Driver. She received a consistent 7.0 out of7.0 on

19 her performance reviews. PlaintiffBoykin also excelled in Defendant's ASPIRE management

20 training program. On each of the three program assessments, (i) the Quantitative Assessment, (ii)

21 the Psychological Assessment, and the (iii) Peer Assessment, PlaintiffBoykin scored the highest

22 possible grade, 5 on a scale of 5.

23

167. In May 2000, PlaintiffBoykin applied for one of two Operations Manager

24 positions at the San Leandro Facility. Despite PlaintiffBoykin's superior qualifications and the

25 strong recommendation of her manager, Defendant, including specifically Senior Manager Robert

26 Montez and Regional Vice President Michael Pigors, passed over PlaintiffBoykin in favor of two

27 less experienced and less qualified non-Minority applicants, Carl Bowersmith and Mark Azevedo.

28
562483.2

168. Because ofPlaintiffBoykin's superior qualifications, Defendant

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1 improperly conducted the interviews so as to minimize the advantages that PlaintiffBoykin

2 possessed over the two non-Minority applicants. Contrary to Defendant's policy, Defendant

3 conducted the interviews at separate locations and with separate panels.

4

169. In response to the discriminatory hiring procedures, Plaintiff Boykin filed a

5 GFT. After an investigation, Defendant was directed to conduct the interviews again, and

6 interviews were scheduled for the following week at another facility before the same panel.

7

170. At the second interview, Defendant once again selected Bowersmith and

8 Azevedo for the two Operations Manager positions. Defendant was unable to explain why

9 Bowersmith and Azevedo were more qualified than Plaintiff Boykin when she raised the issue

10 with manager Montez.

11

171. After being passed over a second time, Plaintiff Boykin filed another GFT

12 request together with an EEO discrimination complaint. Defendant failed to properly investigate

13 Plaintiff Boykin's discrimination complaint. Even though Defendant scheduled an arbitration to

14 explore Plaintiff Boykin' s allegations, they failed to follow up or report any findings to Plaintiff

15 Boykin. Moreover, no one ever contacted Plaintiff Boykin from Employee Relations at

16 Defendant's Memphis headquarters to discuss the complaint with Plaintiff Boykin. Instead,

17 Defendant offered PlaintiffBoykin a third operations manager position that had become available

18 in exchange for her agreement to withdraw her complaints.

19

172. PlaintiffBoykin is informed and believes, and thereupon alleges, that she

20 has been compensated less than similarly situated non-Minorities. Even after PlaintiffBoykin

21 ultimately was made a manager after several attempts, Defendant continued to discriminate

22 against her on the basis ofrace. While Defendant paid Carl Bowersmith a salary in the first

23 quartile for managers in their grade (Level 25), PlaintiffBoykin was paid at the lowest rate in

24 Level25. Plaintiff was paid at a lower rate despite being assigned greater management

25 responsibilities than the two non-Minority managers. Upon becoming a manager, PlaintiffBoykin

26 assumed all the responsibilities of the manager who had stepped down and more. She was

27 responsible for the PM operations for RTD drivers in the entire South Bay and mid-Peninsula

28 service area, which includes both San Francisco stations, the South San Francisco Facility, Palo

562483.2

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1 Alto, the San Jose Facility, the Santa Clara Facility, the Sunnyvale Facility, the Oakland Hub, and 2 the San Jose and San Francisco Ramps. The operations for which she was responsible lasted from 3 3:00PM to midnight. PlaintiffBoykin was responsible for over 100 routes daily and24

4 employees.

5

173. By contrast, Bowersmith was given a relatively easy management

6 assignment. Bowersmith was made responsible for the Weekend Operation, a 20-hour operation

7 on Saturdays and Sundays. The Weekend Operation involves nine employees, all moving freight

8 from the San Leandro Facility to the Oakland Hub.

9

174. Defendant also discriminated against PlaintiffBoykin by failing to provide

10 management support to PlaintiffBoykin, making it more difficult for her to perform her job

11 duties. Montez spent little time with Plaintiff Boykin, instead focusing his attention on assisting

12 Bowersmith to develop as a manager.

13

175. Despite her lack of support from Defendant, PlaintiffBoykin excelled in

14 her management responsibilities. In her first year as a manager, PlaintiffBoykin turned the

15 extremely uncooperative workgroup that she inherited from Mike Kelly, the previous non-

16 Minority manager, into a highly productive group. In that first year, PlaintiffBoykin received a 17 Survey Feedback Score ("SFA") of 97 from her group, and a SFA score of 94 in the second year. 3

18 Moreover, PlaintiffBoykin received a leadership average of 4.9 in her first year and one of 4.7 in

19 her second year. PlaintiffBoykin also received a commendation from the Senior Vice President

20 for her management abilities.

21

176. Nevertheless, Defendant took additional steps to undermine her

22 advancement in Defendant's management ranks. Montez refused to timely perform Plaintiff

23 Boykin's performance reviews, which are essential to pay rate and grade level increases. Plaintiff

24 Boykin was scheduled for a 3-month performance review prior to taking a maternity leave.

25 Though Montez timely performed the performance reviews for Bowersmith, he delayed Plaintiff

26 Boykin's review until she returned from her maternity leave. At that time, he gave Plaintiff

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.

562483.2

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Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 44 of 101

1 Boykin a three-month review and the two non-Minority managers six-month reviews.

2

177. Montez also discriminated against PlaintiffBoykin by providing her with

3 an unreasonably low review of2.8. Defendant initially attempted to give PlaintiffBoykin a rating

4 of2.5, but PlaintiffBoykin rebutted each and every basis for Montez's grading. Defendant rated

5 PlaintiffBoykin below 3.0, despite her exemplary performance as reflected in her SFA scores, in

6 order to preclude her from receiving any pay or grade level increases. By contrast, the two non-

7 Minority managers were given higher scores and pay increases. Defendant has routinely delayed

8 PlaintiffBoykin's pay and grade level increases, requiring her to take extra measures in order to

9 receive the same benefits as the two non-Minority managers.

10

178. In March 2001, Defendant continued its discrimination against Plaintiff

11 Boykin by disciplining her for a trivial matter for which it has routinely refused to discipline non-

12 Minority employees. Montez informed PlaintiffBoykin that she had failed to provide for an ad

13 hoc, unscheduled pick-up for an institutional customer. As a result of attempting to assure that the

14 Sacramento route was covered in light of Defendant's failure to provide her with sufficient RTD

15 Drivers, PlaintiffBoykin had inadvertently missed the order. However, the AM Operations

16 Manager with PlaintiffBoykin's responsibilities, had the order picked up the next morning. Since

17 the package was an economy order, there was no failure by Defendant to meet its delivery

18 deadlines.

19

179. As a result of the missed pick up, Montez threatened to give Plaintiff

20 Boykin a written warning letter. Defendant's standard disciplinary practice is to provide written

21 warning letters only after an employee has committed previous acts deserving discipline.

22 Defendant has not provided documented counseling to non-Minority managers or employees

23 upon their first offense. In response to PlaintiffBoykin's pleas for fairness, Montez indicated that

24 he would give PlaintiffBoykin only a verbal warning if she would prepare a corrective action

25 plan to address the oversight.

26

180. PlaintiffBoykin submitted the action plans as requested and was informed

27 by District Manager Robin V anGalder and Montez that it was insufficient. Defendant insisted on

28 giving PlaintiffBoykin a documented counseling despite earlier assurances that she would only

562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND
DEMAND FOR JURY TRIAL
CASE No. C 03-2659 S!; C 03-2878 Sl

Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 45 of 101

1 get a verbal warning. Furthermore, VanGalder and Montez informed Plaintiff Boykin that she had

2 been guilty of"gross leadership failure" and that she was a bad manager. Non-Minority managers

3 have frequently failed to have packages picked up on time yet have not been disciplined, much

4 less given OLCCs or written warnings or accused of"gross leadership failure."

5

B. Individual Claims for Working Conditions and Retaliation

6

181. Defendant assigned more burdensome job duties and shifts to Plaintiff

7 Boykin than to non-Minority employees, thus making it more difficult for her to perform as well

8 as her non-Minority peers. While a part-time Handler, Defendant discriminated against Plaintiff

9 Boykin on the basis of race by routinely assigning her to work on the busiest conveyor belts, or

10 "slides" as they are called at the Oakland Hub, where thousands of packages are processed. By

11 contrast, many stronger non-Minority employees were permitted to work on less taxing slides

12 where packages numbered in the hundreds, not thousands.

13

182. In November 2003, after PlaintiffBoykin had filed her charge with the

14 EEOC, Defendant retaliated against PlaintiffBoykin by changing her schedule from her regular

15 time of 1:30 PM to 10:30 PM to a more undesirable shift, 1:00AM to 10:00 AM. Defendant did

16 not adversely change the hours of the non-Minority Operations Managers with the same seniority

17 as Plaintiff Boykin.

18

183. Defendant has further retaliated against PlaintiffBoykin for complaining

19 about race-based discrimination, for filing a charge with the EEOC, and for participating in this

20 lawsuit, by suspending her without cause and failing to offer her a suitable position after a

21 medical leave of absence.

22

184. In addition to the foregoing, Plaintiff Boykin has experienced disparate

23 treatment on the basis of race with respect to many employment practices by Defendant.

24

185. PlaintiffBoykin filed a timely charge of discrimination with the EEOC on

25 May 6, 2003, and filed a timely charge with the. DFEH in July 31, 2002, attached hereto as

26 Exhibit "I." PlaintiffBoykin has received Notices of Right to Sue from the EEOC and from the

27 DFEH.

28
562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE No. C 03-2659 Sl; C 03-2878 Sl

Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 46 of 101

I

FIRST CLAIM FOR RELIEF

CLASS CLAIM FOR VIOLATION OF TITLE VII

2

DISPARATE IMPACT

3

186. Plaintiffs incorporate by reference the allegations of paragraphs 1-49, 56-

4 76, 81-87, 90-97, 100-108, lll-ll6, 119-129, 134-140, 143-153, 162-180, 185 as though fully set

5 forth herein.

6

187. This claim is brought on behalf of all Plaintiffs and the class ofMinority

7 Employees and the class of African American Lower-Level Managers.

8

188. The class period for the Minority Employee Class for this Claim for Relief

9 is from June 20, 2002 through the date ofjudgment. The class period for the African American

10 Lower-Level Manager Class for this Claim for Relief is from July 10,2002 through the date of

11 judgment.

12

189. Plaintiffs Satchell, Boykin, Brown, Gonzales, Guerrero, Hutchins, Merritt,

13 Smith and Stevenson filed timely charges of discrimination with the Equal Employment

14 Opportunity Commission, received right to sue letters, and timely filed the instant claim.

15

190. Defendant has maintained a system for making decisions about

16 promotions, assigmnents (as to the Minority Employee Class), compensation, and discipline

17 which is excessively subjective and allows managers virtually unfettered discretion, which has 18 had a disparate impact on Plaintiffs, the Minority Employee Class, and the African American

19 Lower-Level Manager Class. This system cannot be justified by business necessity, but even if it

20 could be so justified, less discriminatory alternatives exist that could equally serve any alleged

21 necessity.

22

191. Defendant's requirement that applicants for promotion to Courier, Ramp

23 Transport Driver, Customer Service Agent, and Customer Representative must pass the BST, has

24 a disparate impact on Plaintiffs and the Minority Employee Class. The BST requirement cannot

25 be justified by business necessity, but even if it could be so justified, less discriminatory

26 alternatives exist that could equally serve any alleged necessity.

27

192. Defendant's discriminatory policies and practices as described above have

28 denied Plaintiffs and the classes they represent promotions, desirable job assigmnents (as to the

562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
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Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 47 of 101

1 Minority Employee Class), and compensation to which they were and are entitled; and have

2 caused Plaintiffs and the classes they represent to be disciplined when they should not have been,

3 resulting in the loss of past and future wages and other job benefits.

4

193. The foregoing conduct violates Title VII of the Civil Rights Act of 1964,

5 42 U.S.C. §§ 2000(e), et seq.

6

194. Plaintiffs request relief as provided in the Prayer for Relief below.

7

SECOND CLAIM FOR RELIEF

CLASS CLAIM FOR VIOLATION OF TITLE VII

8

DISPARATE TREATMENT

9

195. Plaintiffs incorporate by reference the allegations of paragraphs 1-32, 34-

10 46, 48-112, 114-185, as though fully set forth herein.

II

196. 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

197. The class period for the Minority Employee Class for this Claim for Relief

14 is from June 20,2002 through the date ofjudgment. 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

198. 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 letters, and timely filed the instant claim.

20

199. Defendant has engaged in a pattern and practice of intentional

21 discrimination against Plaintiffs and the classes in promotions, assignments (as to the Minority

22 Employee Class), compensation, and discipline.

23

200. Defendant's discriminatory policies and practices as described above have

24 denied Plaintiffs and the classes they represent promotions, desirable job assignments (as to the

25 Minority Employee Class), and compensation to which they were and are entitled; and have

26 caused Plaintiffs and the classes they represent to be disciplined when they should not have been,

27 resulting in the loss of past and future wages and other job benefits; and have caused Plaintiffs

28 and the classes they represent to suffer humiliation, embarrassment and emotional distress.

562483.2

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1

201. The foregoing conduct violates Title VII of the Civil Rights Act of 1964,

2 42 U.S.C. §§ 2000(e), et seq.

3

202. Plaintiffs request relief as provided in the Prayer for Relief below.

. 4

THIRD CLAIM FOR RELIEF

NON-CLASS CLAIMS FOR DISPARATE TREATMENT IN VIOLATION OF TITLE VII

5

6

203. Plaintiffs incorporate by reference the allegations of paragraphs 1-32, 34-

7 46, 48-112, 114-185, above, as though fully set forth herein.

8

204. This claim is brought on behalf of the named Plaintiffs individually for

9 their non-class claims.

10

205. Defendant intentionally discriminated against named Plaintiffs Brown,

11 Gonzales, Guerrero, Hutchins, Merritt, Smith, Stevenson, Satchell, and Boykin on the basis of

12 their race.

13

206. Defendant subjected named Plaintiffs Brown, Gonzales, Guerrero, Merritt,

14 Smith, Stevenson, Satchell, and Boykin to a racially hostile work environment.

15

207. 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

208. Defendant intentionally discriminated against Plaintiff Gonzales by failing

20 to rehire him from disability.

21

209. Defendant intentionally discriminated against Plaintiff Guerrero by

22 retaliating against her for complaining about race-based discrimination and by terminating her.

23

210. Defendant intentionally discriminated against Plaintiff Hutchins by

24 retaliating against her for filing a discrimination complaint and by terminating her.

25

211. Defendant intentionally discriminated against Plaintiff Merritt by denying

26 him leave without pay.

27

212. Defendant intentionally discriminated against Plaintiff Smith by retaliating

28 against him for filing a discrimination complaint and terminating him.

562483.2

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I

213. Defendant intentionally discriminated against Plaintiff Stevenson by

2 subjecting him to harassment.

3

214. Defendant intentionally discriminated against Plaintiff Satchell by

4 retaliating against him for filing a discrimination complaint and terminating him.

5

215. Defendant intentionally discriminated against PlaintiffBoykin by

6 subjecting her to more burdensome work conditions than similarly situated non-Minority

7 employees, and by retaliating against her for filing a discrimination complaint and failing to offer

8 her a suitable position after returning from leave of absence.

9

216. Defendant's discriminatory and retaliatory practices have resulted in the

10 loss of past and future wages and other job benefits, and have caused Plaintiffs to suffer

II humiliation, embarrassment and emotional distress.

12

217. The foregoing conductviolates Title VII of the Civil Rights Act ofl964,

13 42 U.S.C. §§ 2000(e), et seq.

14

218. Plaintiffs request relief as provided in the Prayer for Relief below.

15

FOURTH CLAIM FOR RELIEF

CLASS CLAIMS FOR VIOLATION OF 42 U.S.C. § 1981 16
219. Plaintiffs incorporate by reference the allegations of paragraphs 1-32, 34-

17

46,48-112, 114-185, as though fully set forth herein.

18 220. This claim is brought on behalf of all Plaintiffs and the Minority Employee

19

Class and the African American Lower-Level Manager Class.

20

221. The class period for both the Minority Employee Class and the African

21 American Lower-Level Manager Class for their compensation and discipline claims is from

22

October 17, 1999 to the date ofjudgment in this action. The class period for the Minority

23

Employee Class's promotion claims with respect to denial of promotion from one permanent

24

hourly position to another permanent hourly position is October 17, 1999. The class period for

25

the Minority Employee Class's promotion claims with respect to denial of promotion from casual

26

positions to permanent positions or from permanent hourly positions to permanent salaried

27

positions is January I, 2002.

28

562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND
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1

222. FedEx Express has engaged in a pattern and practice of intentional

2 discrimination against Plaintiffs and the classes with respect to initial assignments (as to the

3 Minority Employee Class only), promotion, compensation, and discipline.

4

223. Defendant's discriminatory policies and practices as described above have

5 denied Plaintiffs and the classes they represent promotions, desirable job assignments (as to the

6 Minority Employee Class), and compensation to which they were and are entitled; and have

7 caused Plaintiffs and the classes they represent to be disciplined when they should not have been,

8 resulting in the loss of past and future wages and other job benefits; and have caused Plaintiffs

9 and the classes they represent to suffer humiliation, embarrassment and emotional distress.

10

224. The foregoing conduct constitutes illegal intentional discrimination with

11 respect to the making, performance, modification, and termination of contracts prohibited by
12 42 u.s.c. § 1981.

13

225. Plaintiffs request relief as provided in the Prayer for Relief below.

14

FIFTH CLAIM FOR RELIEF

15

NON-CLASS CLAIMS FOR VIOLATION OF 42 U.S.C. § 1981

226. Plaintiffs incorporate by reference the allegations of paragraphs 1-32, 3416

46,48-112, 114-185, as though fully set forth herein. 17

227. This claim is brought on behalf of the named Plaintiffs individually for 18

their non-class claims. 19

228. Defendant intentionally discriminated against named Plaintiffs Brown, 20

Gonzales, Guerrero, Hutchins, Merritt, Smith, Stevenson, Satchell, and Boykin on the basis of 21

their race. 22

229. Defendant intentionally discriminated against Plaintiff Brown by 23

subjecting her to more burdensome work conditions than similarly situated non-Minority 24

employees, subjecting her to harassment, and retaliating against her for filing a discrimination 25

complaint. 26

230. Defendant intentionally discriminated against Plaintiff Gonzales by failing 27

to rehire him from disability. 28

562483.2

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I

231. Defendant intentionally discriminated against Plaintiff Guerrero by

2 retaliating against her for complaining about race-based discrimination and by terminating her.

3

232. Defendant intentionally discriminated against Plaintiff Hutchins by

4 retaliating against her for filing a discrimination complaint and by terminating her.

5

233. Defendant intentionally discriminated against Plaintiff Merritt by denying

6 him leave without pay.

7

234. Defendant intentionally discriminated against Plaintiff Smith by retaliating

8 against him for filing a discrimination complaint and terminating him.

9

235. Defendant intentionally discriminated against Plaintiff Stevenson by

I 0 subjecting him to harassment.

11

236. Defendant intentionally discriminated against Plaintiff Satchell by

12 retaliating against him for filing a discrimination complaint and terminating him.

13

23 7. Defendant intentionally discriminated against Plaintiff Boykin by

14 subjecting her to more burdensome work conditions than similarly situated non-Minority

15 employees and by retaliating against her for filing a discrimination complaint and failing to offer

16 her a suitable position after returning from leave of absence.

17

238. Defendant's discriminatory and retaliatory practices have resulted in the

18 loss of past and future wages and other job benefits, and have caused Plaintiffs to suffer-

19 humiliation, embarrassment and emotional distress.

20

239. Plaintiffs request relief as provided in the Prayer for Relief below.

21

SIXTH CLAIM FOR RELIEF

22

VIOLATION OF CALIFORNIA FEHA-NON-CLASS CLAIMS

23

240. Plaintiffs incorporate by reference the allegations of paragraphs 1-32, 34-

24 46,48-112, 114-185, as though fully set forth herein.

25

241. This claim is brought on behalf of the named Plaintiffs employed and/or

26 residing in California individually for their non-class claims.

27

242. Defendant intentionally discriminated against named Plaintiffs Brown,

28

562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND
DEMAND FOR JURY TRlAL
CASE No. C 03-2659 Sl; C 03-2878 S!

Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 52 of 101

I Gonzales, Guerrero, Hutchins, Smith, Stevenson, Satchell, and Boykin on the basis of their race.

2

243. Defendant subjected named Plaintiffs Brown, Gonzales, Guerrero,

3 Hutchins, Smith, Stevenson, Satchell, and Boykin to a racially hostile work environment.

4

244. Defendant intentionally discriminated against Plaintiff Brown by

5 subjecting her to more burdensome work conditions than similarly situated non-Minority 6 employees, subjecting her to harassment, and retaliating against her for filing a discrimination

7 complaint. 8

245. Defendant intentionally discriminated against Plaintiff Gonzales by failing

9 to rehire him from disability.

10

246. Defendant intentionally discriminated against Plaintiff Guerrero by

II retaliating against her for complaining about race-based discrimination and by terminating her.

12

247. Defendant intentionally discriminated against Plaintiff Hutchins by

13 retaliating against her for filing a discrimination complaint and by terminating her.

14

248. Defendant intentionally discriminated against Plaintiff Smith by retaliating

15 against him for filing a discrimination complaint and terminating him.

16

249. Defendant intentionally discriminated against Plaintiff Stevenson by

17 subjecting him to harassment.

18

250. Defendant intentionally discriminated against Plaintiff Satchell by

19 retaliating against him for filing a discrimination complaint and terminating him.

20

251. Defendant intentionally discriminated against PlaintiffBoykin by

21 subjecting her to more burdensome work conditions than similarly situated non-Minority

22 employees.

23

252. Defendant's discriminatory and retaliatory practices have resulted in the

24 loss of past and future wages and other job benefits, and have caused Plaintiffs to suffer

25 humiliation, embarrassment and emotional distress.

26

253. Plaintiffs request relief as provided in the Prayer for Relief below.

27 28
562483.2

254.

RELIEF ALLEGATIONS

Plaintiffs and the classes they represent have no plain, adequate or

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THIRD CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
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Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 53 of 101

I complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in 2 this action is the only means of securing complete and adequate relief. Plaintiffs and the classes 3 they represent are now suffering and will continue to suffer irreparable injury from Defendant's 4 discriminatory acts and omissions.

5

255. The actions on the part of Defendant have caused and continue to cause

6 Plaintiffs and the classes substantial losses in earnings, other compensation, desirable job

7 assignments, promotions, and other employment benefits, in an amount to be determined

8 according to proof.

9

256. The actions on the part of Defendant have caused Plaintiffs and the classes

I 0 to suffer humiliation, embarrassment and emotional distress.

II

257. Defendant acted or failed to act as herein alleged with malice or reckless

12 indifference to the protected rights of Plaintiffs and members of the classes. Plaintiffs and

13 members of the classes are thus entitled to recover punitive damages in an amount to be

14 determined according to proof.

15

PRAYERFORRELIEF

16

WHEREFORE, Plaintiffs, and the classes, pray for relief as follows:

17

I. Certification of the case as a class action on behalf of the proposed Plaintiff

18 classes, and designation of Plaintiffs as representatives of the classes and their counsel of record

19 as Class Counsel;

20

2. For both classes' disparate impact claim under Title VII (Claim One),

21 equitable relief for all harm the individual Plaintiffs and the classes have sustained as a result of

22 Defendant's conduct, including back pay and front pay,

23

3. For both classes' other claims (Claims Two and Four), damages and

24 equitable relief for all harm the individual Plaintiffs and the classes have sustained as a result of

25 Defendant's conduct, including back pay, front pay, compensatory damages for emotional

26 distress, and general and special damages for lost compensation and job benefits that they would

27 have received but for the discriminatory practices of Defendant, and punitive damages, according 28 to proof;

562483.2

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THlRD CONSOLIDATED AMENDED COMPLAINT AND
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Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 54 of 101

1

4. For Plaintiffs' individual, non-class claims, damages and equitable relief

2 for all harm that Plaintiffs have sustained as a result of Defendant's conduct, including

3 reinstatement, back pay, front pay, general and specific damages for lost compensation and job 4 benefits they would have received but for the discriminatory practices of Defendant,

5 compensatory damages for emotional distress, and punitive damages, according to proof;

6

5. Exemplary and punitive damages in an amount commensurate with

7 Defendant's ability to pay and to deter future discriminatory conduct;

8

6. A preliminary and permanent injunction against Defendant and its

9 directors, officers, owners, agents, successors, employees and representatives, and any and all 10 persons acting in concert with it, from engaging in each of the unlawful practices, policies,

11 customs and usages set forth herein;

12

7. A declaratory judgment that the practices complained of in this complaint.

13 are unlawful and violate 42 U.S.C. § 2000(e), et seq., Title VII ofthe Civil Rights Act of 1964;

14

8. A declaratory judgment that the practices complained of in this complaint

15 are unlawful and violate 42 U.S.C. § 1981;

16

9.

An order restoring and/or promoting Plaintiffs and the classes to their

17 rightful positions;

18

10. An order assigning Plaintiffs and the classes to those jobs they would now

19 be occupying but for Defendant's discriminatory practices;

20

11. An order adjusting the wage rates and benefits for Plaintiffs and the classes

21 to that level which Plaintiffs and the classes would be enjoying but for Defendant's

22 discriminatory practices;

23

12. An order expunging disciplinary records for Plaintiffs and the classes that

24 relate to discipline decisions resulting from Defendant's discriminatory practices;

25

11. Costs incurred, including reasonable attorneys' fees, to the extent allowable

26 by law;

27

12. Pre-Judgment and Post-Judgment interest, as provided by law; and

28

562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND
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Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 55 of 101

1

13. Such other and further legal and equitable relief as this Court deems

2 necessary, just and proper.

3 Dated: September 29, 2006
4

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

5

6

By: /s/ James M. Finberg

James M. Finberg

7

Todd M. Schneider (SBN 158253) 8 Guy B. Wallace (SBN 176151)

James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452)

9 Joshua Konecky (SBN 182897) SCHNEIDER & WALLACE

Lexi J. Hazam (SBN 224457) Chimene I. Keitner (SBN 226948)

10 180 Montgomery Street, Suite 2000 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

San Francisco, CA 94104

275 Battery Street, 30th Floor

11 Telephone: (415) 421-7100 Facsimile: (415) 421-7105
12

San Francisco, CA 94111-3339 Telephone: (415) 956-1000 · Facsimile: (415) 956-1008

13 JOHN BURRIS (SBN 69888)
14 7677 Oakport Blvd., Suite 1120
Oakland, CA 94612 15 Telephone: (510) 839-5210
16 Facsimile: (510) 839-3882

KAY MCKENZIE PARKER (SBN 143140) 225 Bush Street, 16th Floor San Francisco, CA 941 04 Telephone: (415) 227-9622 Facsimile: (415) 227-4522

17 MICHAELS. DAVIS (SBN 160045) WAUKEEN Q. McCOY (SBN 168228)

345 Hill Street

703 Market Street, Suite 1407

18 San Francisco, CA 94109

San Francisco, CA 94103

19 Telephone: (415) 282-4315 Facsimile: (415) 358-5576

Telephone: (415) 675-7705 Facsimile: (415) 675-2530

20

Class Counsel 21

22

23

24

25

26

27

28
562483.2

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Case 3:03-cv-02659 Document 491-3 Filed 09/29/2006 Page 56 of 101

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 with respect to Claims Two, Three, Four, Five and Six.

4

5 Dated: September 29, 2006 6

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

7

By: /s/ James M. Finberg

8

James M. Finberg

9 Todd M. Schneider (SBN 158253) James M. Finberg (SBN 114850)

Guy B. Wallace (SBN 176151) 10 Joshua Konecky (SBN 182897)

Bill Lann Lee (SBN 108452) Lexi J. Hazam (SBN 224457)

11

SCHNEIDER & WALLACE

Chimime I. Keitner (SBN 226948)

180 Montgomery Street, Suite 2000 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

12 San Francisco, CA 94104

275 Battery Street, 30th Floor

Telephone: (415) 421-7100

San Francisco, CA 94111-3339

13 Facsimile: (415) 421-7105

Telephone: (415) 956-1000

Facsimile: (415) 956-1008 14

15 JOHN BURRIS (SBN 69888) 7677 Oakport Blvd., Suite 1120
16 Oakland, CA 94612 Telephone: (51 0) 839-5210
17 Facsimile: (510) 839-3882

KAYMCKENZIEPARKER(SBN 143140) 225 Bush Street, 16th Floor San Francisco, CA 94104 Telephone: (415) 227-9622 Facsimile: (415) 227-4522

18 MICHAEL S. DAVIS (SBN 160045) WAUKEEN Q. McCOY (SBN 168228)

19 345 Hill Street

703 Market Street, Suite 1407

San Francisco, CA 94109

San Francisco, CA 94103

20 Telephone: (415) 282-4315

Telephone: (415) 675-7705

21 Facsimile: (415) 358-5576

Facsimile: (415) 675-2530

22

Class Counsel

23

24

25

26

27

28
562483.2

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THIRD CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CAsE No. c 03-2659 SI; c 03-2878 SI

 
 Case3:03-cv-02659 Document32 Filed09/25/03 Page1 of 1
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER
A Notice of Related Cases has been filed that the following cases are related within the meaning of Civil L.R. 3-12(b):
C03-2659 SI (e) Satchell, et al., v. Fedex Corporation, et al., C03-2878 WHA (e) Caldwell, et al., v. Fedex Corporation, et al.,

ORDER

The time for filing a statement to support or oppose the Notice has passed. On the basis of the material submitted to the Court, as the Judge assigned to the earliest filed case, I find that the cases:

[] ARE NOT RELATED as defined by Civil L.R. 3-12(b).

[x] ARE RELATED as defined by Civil L.R. 3-12(b). Pursuant to Civil L.R. 3-12(e), the Clerk of Court is ordered to reassign the later-filed action to the undersigned. Counsel are instructed that all future filings are to bear the initials SI immediately after the case number. All matters presently scheduled for hearing in the reassigned case(s) are vacated and must be renoticed for hearing before the undersigned.

DATED: 9/25/03

S/Susan Illston UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
I certify that on the date stated below, I lodged a copy of this order with each judicial officer and I mailed a copy to each counsel of record in the cases listed above.
Richard W. Wieking, Clerk

DATED:

By: Deputy Clerk

Copies to: Courtroom Deputies Case Systems Administrators Counsel of Record
Entered into Assignment Program: (date)
mrg\civil\relcsord.mrg (9/97)

 
 Case3:03-cv-02659 Document311 Filed03/21/05 Page1 of 7

United States District Court For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 DERRICK SATCHELL, et al.,

No. C 03-02659 SI

9

Plaintiffs,

10 v.

11 FEDEX CORPORATION,

12

Defendant.

13

ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL, GRANTING PLAINTIFFS’ RULE 56(f) MOTIONS, AND SETTING NEW SCHEDULE
/

14

Defendant FedEx Corporation (“FedEx”) has filed motions for summary judgment regarding named

15 plaintiffs Kenneth Stevenson, Valerie Brown, Rick Gonzales, Kalini Boykin, and Kelvin Smith. The first four

16 summary judgment motions were set for hearing on January 14, 2005, and the fifth was set for hearing on

17 March 3, 2005. Plaintiffs filed motions for relief pursuant to Federal Rule of Civil Procedure 56(f) to continue

18 all motions until after resolution of a pending discovery dispute and asking the Court to defer ruling on the

19 motions until after its decision on class certification. Having carefully considered the papers submitted, the

20 Court hereby GRANTS plaintiffs’ Rule 56(f) motions and PARTIALLY GRANTS and PARTIALLY

21 DENIES plaintiffs’ motion to compel.

22

23

BACKGROUND

24

On October 17, 2003, plaintiffs filed a consolidated amended complaint with this Court, alleging

25 disparate impact and disparate treatment in violation of the Title VII of the Civil Rights Act, 42 U.S.C. § 1981, 26 and the California Fair Employment and Housing Act against defendant FedEx Express (“FedEx” or

27 “defendant”).

28

On September 11, 2004, plaintiffs filed a motion to certify the class. On October 1, 2004, and

Case3:03-cv-02659 Document311 Filed03/21/05 Page2 of 7

United States District Court For the Northern District of California

1 October 29, 2004, defendant filed motions for summary judgment as to the claims of plaintiffs Kenneth

2 Stevenson, Rick Gonzales, Valerie Brown, and Kalini Boykin, noticing the motions for December 3, 2004.

3 On October 7, 2004, the Court continued these summary judgment motions to January 14, 2005, the date set

4 for hearing on the class certification motion. On December 6, 2004, defendant filed its motion for summary

5 judgment as to plaintiff Kelvin Smith, with a hearing set for March 4, 2005.

6

Plaintiffs filed a December 16, 2004 letter brief with the Court, moving to compel discovery from

7 defendant relating to the summary judgment motions.1 In addition, plaintiffs filed a motion to continue

8 defendant’s summary judgment motions, pursuant to Fed. R. Civ. P. 56(f), on grounds that they had been

9 unable to conduct discovery essential to their opposition to those motions.

10

Now before the Court are defendants’ five summary judgment motions, plaintiffs’ Rule 56(f) motion

11 as to all summary judgment motions, and plaintiffs’ motion to compel.

12

13 14 1.

Motion to compel

LEGAL STANDARDS

15

In general, parties may obtain discovery regarding any matter, not privileged, that is relevant to a claim

16 or defense of any party. Fed. R. Civ. P. 26(b)(1). For good cause, the court may order discovery of any

17 matter relevant to the subject matter involved in the action. Id. A motion to compel a discovery response is

18 appropriate when a party disobeys a proper request byrefusing to produce relevant, non- privileged discovery. 19 See Fed. R. Civ. P. 37(a)(2). The movant must certify that it has in good faith conferred or attempted to confer 20 with the party failing to make discovery in an effort to secure information or material without court action. See 21 id. 22

23 2. Rule 56(f)

24

Pursuant to FederalRule of Civil Procedure 56(f), upon a showing by the party opposing a motion for

25 summary judgment that it "cannot for reasons stated present by affidavit facts essential to justify the party's

26

27 1 Defendant responded by letter brief on January 4, 2005, and plaintiffs filed a reply on January 10,
28 2005.

2

Case3:03-cv-02659 Document311 Filed03/21/05 Page3 of 7

United States District Court For the Northern District of California

1 opposition," the court may deny or continue the motion for summary judgment in order to permit that party an

2 opportunity to obtain necessary discovery. "Ordinarily, summary judgment should not be granted when there

3 are relevant facts remaining to be discovered, but the party seeking a continuance bears the burden to show

4 what specific facts it hopes to discover that will raise an issue of material fact." Cont’l Mar. v. Pac. Coast

5 Metal Trades, 817 F.2d 1391, 1395 (9th Cir. 1987).

6

A Rule 56(f) motion should be granted where the party opposing summary judgment makes a timely

7 application that specifically identifies relevant information to be discovered, and there is some basis for believing

8 that such information actually exists. Visa Int'l Serv. Ass'n v. Bankcard Holders, 784 F.2d 1472, 1475 (9th

9 Cir. 1986). Granting of such a motion is particularly appropriate where the identified information is the subject

10 of outstanding discovery requests. Id. 11

12

DISCUSSION

13 I. 14

Motion to Compel Plaintiffs have filed a motion to compel production of documents and responses to interrogatories

15 related to the pending summary judgment motions. According to plaintiffs, the discovery sought is relevant to

16 their individual claims of discrimination and consists in part of the identities and personnelfiles of comparators,

17 materials submitted by plaintiffs and comparators in applying for jobs, discipline records at the FedEx stations

18 where plaintiffs were employed, and the identities of decision-makers in the job application process.

19

Plaintiffs ask the Court to order defendant to (1) produce all documents it has agreed to produce but

20 has not yet produced; (2) produce the complete personnelfiles of plaintiffs’ comparators; (3) identify the other

21 employees who applied for certain job postings, rather than providing JCATS records identifyingthese persons

22 by employee number; (4) produce documents related to hiring, job applications, and promotion, including

23 records from the ASPIRE management training program for comparators and questionnaires from the Survey

24 Feedback Action (“SFA”) program, which allows FedEx employees to comment on their managers; (5)

25 respond to interrogatories seeking the reasons why plaintiffs were not hired for specific jobs; (6) identify the 26 number of Caucasian employees meeting various criteria, rather than referencing JCATS records; (7) produce

27 documents relating to the disciplinary actions taken against plaintiffs, other employees identified by plaintiffs,

28

3

Case3:03-cv-02659 Document311 Filed03/21/05 Page4 of 7

United States District Court For the Northern District of California

1 African-American and Latino employees, and employees generally; (8) produce documents relating to any

2 investigations of complaints of discrimination over the past five years, including records of conversations

3 between plaintiffs and FedEx personneland witness statements about any events alleged in the complaint; (9)

4 produce documents relating to the Field Activity Management Information System (“FAMIS”), which tracks

5 operational information like courier efficiency; (10) produce documents relating to non-African-American and

6 Latino employees’ return to work after disability leave; (11) produce documents regarding specific employee

7 failures to follow FedEx policies; (12) produce documents regarding customer complaints against plaintiff

8 Valerie Brown; (13) produce documents regarding “ASTRA SOPS” falsifications; (14) produce documents

9 regarding defendant’s denial of liability to named plaintiffs; and (15) specify the parts of Texas included in

10 FedEx’s Western Region.2

11

Defendant argues that plaintiffs have all of the requested information in an electronic database provided

12 in February 2004, which contains other personnel databases in addition to the JCATS records. In addition,

13 defendant states thatit has alreadyproduced the hardcopy employment files of twenty-one alleged comparators 14 and other materials. FedEx acknowledges that it did respond to some interrogatories by referring plaintiffs to

15 voluminous records pursuant to Fed. R. Civ. P. 33(d), but argues that it did so properly. As for plaintiffs’ 16 requests for documents from the ASPIRE, SFA, and FAMIS programs, defendant states that it has produced 17 all ASPIRE material for plaintiffs but that ASPIRE records for comparators was not requested; that SFA

18 materials were never requested; and that FAMIS records are irrelevant to the summary judgment motions and

19 may be burdensome to produce. Defendant also contends that the summary judgment motions are based

20 “almost exclusively on the plaintiffs’ own deposition testimony” and thus will not be rebutted by the information

21 plaintiffs seek. Def.’s Letter Br. at 1-2. The parties also dispute whether they previously established that

22 discovery would be taken on class certification issues first.

23

The Court agrees with plaintiffs that the electronic data produced for class discovery purposes is not

24 an adequate substitute for the personnel records of comparators and other discovery sought. In addition,

25 defendant has produced only 21 of the 33 personnel files requested. As to the ASPIRE, SFA, and FAMIS

26

27 2 Plaintiffs also ask the Court to compel defendant to submit verifications for its discovery responses;
28 in its letter brief, defendant states that it will provide these verifications. Accordingly, this request is moot.

4

Case3:03-cv-02659 Document311 Filed03/21/05 Page5 of 7

United States District Court For the Northern District of California

1 records, plaintiffs argue that ASPIRE and SFA information was requested as part of the comparators’

2 materials, and that FAMIS data directly impacts hiring and promotion decisions. FedEx does not dispute the

3 relevance and discoverability of much of the information sought, but rather contends that it has already been

4 produced and therefore plaintiffs already have all they need to oppose summary judgment. While FedEx has

5 objected to some of these requests on grounds of privilege, its assertions of privilege are not before the Court 6 on this motion.

7

The Court hereby PARTIALLY GRANTS and PARTIALLY DENIES plaintiffs’ motion to compel

8 and ORDERS discovery as follows:

9

•

all documents defendant has stated it would produce but has not produced to date;

10

•

personnel files for the remaining 12 of the 33 comparators, and complete files for all

comparators, including performance reviews;

11

•

•

ASPIRE records for comparators;

12

•

SFA records contained in the personnel files of comparators;

13

•

handbooks and other materials relating to FAMIS;

14

•

answers to interrogatories seeking the reasons why plaintiffs were not hired for specific jobs;

15

•

documents relating to ASTRA SOPS falsifications that FedEx has stated it will produce;

16

•

all documents relating to disciplinary actions taken against named plaintiffs, specific employees

17

identified by plaintiffs, African-American and Latino employees, and employees generally;

18

•

documents relating to FedEx’s internal investigation of complaints of discrimination, to the

extent they are not privileged; 19

•

documents relating to non-African-American and Latino employees’ return to work after

20

disability leave;

21

•

documents relating to alleged customer complaints against plaintiff Valerie Brown; and

22

•

identification of other employees who applied for job postings by name rather than JCATS

number; 23

Defendant need not produce the following materials and information: 24

•

documents relating to specific incidents of policy violations;

25

26

•

documents regarding FedEx’s denial of liability to the named plaintiffs;

•

further specification of the geographic boundaries of the Western Region; and

27

•

the number of Caucasian employees in various positions and meeting various criteria, for which

28

5

Case3:03-cv-02659 Document311 Filed03/21/05 Page6 of 7

United States District Court For the Northern District of California

1

the electronic database already provided appears sufficient.

2 Defendant must produce all responsive documents on or before April 4, 2005.
3

4 II.
5
6

Rule 56(f) Motion Defendant has filed five motions for summary judgment as to the class and individualclaims of plaintiffs

Kelvin Smith, Kenneth Stevenson, Rick Gonzales, Valerie Brown, and KaliniBoykin. Plaintiffs bring their Rule 7

56(f) motions on grounds that (1) they have not been able to conduct criticaldiscovery to oppose the motions, 8
and (2) ruling on all of defendant’s summary judgment motions should be deferred until after the Court rules 9

on class certification. 10
Plaintiffs argue that they understood the Court’s Case Management Order to mean that they should 11

focus on class discovery first, and therefore did so from February to September 2004, when they filed the class 12

certification motion. According to defendant, FedEx is entitled to bring these motions, and plaintiffs’ failure to 13

conduct discovery on their individualclaims is their own fault. Defendant points out that the Case Management 14

Orders entered on December 10, 2003 and January 8, 2004 provide that defendants “may move for summary 15

judgment as to some or all Plaintiffs . . . either before or after the class certification motion.” 16

While the Court agrees that defendant is entitled to bring these motions, plaintiffs must also have an 17

adequate opportunity to oppose them. The Ninth Circuit has held courts should grant 56(f) motions “fairly 18

freely,” particularly in employment discrimination cases where a party has not had discovery of comparators. 19

Garrett v. City and County of San Francisco, 818 F.2d 1515 (9th Cir. 1987). The Court hereby GRANTS 20

plaintiffs’ motion for a continuance of all five summary judgment motions. 21

Plaintiffs’ opposition to all summary judgment motions must be filed on or before April 18, 2005; 22

defendant’s reply is due April 25, 2005. 23

24

25

26

CONCLUSION

For the foregoing reasons and for good cause shown, the Court hereby GRANTS plaintiffs’ motions 27

under Rule 56(f) and PARTIALLY GRANTS and PARTIALLY DENIES plaintiffs’ motion to compel. 28

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Case3:03-cv-02659 Document311 Filed03/21/05 Page7 of 7

United States District Court For the Northern District of California

1 [Docket #s 239, 254, 304]

2

3

IT IS SO ORDERED.

4

5 Dated: March 21, 2005 6

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S/Susan Illston SUSAN ILLSTON United States District Judge
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 Case3:03-cv-02659 Document529 Filed12/05/06 Page1 of 4

United States District Court
For the Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 DERRICK SATCHELL et al.,

No. C 03-2659 SI

9

Plaintiffs,

ORDER AWARDING ATTORNEYS’ FEES

10 v.

11 FEDEX EXPRESS,

12

Defendant.

/

13

14

In its October 10, 2006 Order Granting in Part and Denying in Part Plaintiffs’ Motions to Compel

15 and Granting Plaintiffs’ Motion for Sanctions, the Court ordered that “defendant shall pay for plaintiffs’

16 reasonable attorneys’ fees and costs associated with the instant motion to compel (not fees associated

17 with plaintiffs’ other motions to compel addressed in this order),” and ordered the parties to meet and

18 confer regarding plaintiffs’ fees and costs. The parties have been unable to agree as to the

19 reasonableness of the fees and costs sought, and have submitted letter briefs with supporting declarations

20 to the Court.

21

Plaintiffs seek a total of $44,159.20, which represents time spent meeting and conferring over

22 the motion to compel, preparation of the motion to compel, and preparation of the fee motion and reply. 23 This amount also reflect a 10% “billing judgment” deduction made by plaintiffs’ counsel.1 Plaintiffs

24 have submitted detailed billing records in support of the request, along with declarations of counsel.

25

Defendant objects that the fee request seeks recovery for work outside the scope of the sanctions

26 order, that numerous entries are too vague, that the Court did not authorize plaintiffs to recover for the

27 1 It appears that plaintiffs deducted 10% from their lodestar on the motion to compel, and are
28 seeking the full amount of fees incurred in connection with the fee motion.

Case3:03-cv-02659 Document529 Filed12/05/06 Page2 of 4

United States District Court
For the Northern District of California

1 meet and confer which preceded the motion to compel, and that plaintiffs’ counsel spent an excessive

2 amount of time “conferencing” and “reviewing.” Defendant does not object to the rates of plaintiffs’

3 counsel. Defendant proposes that a reasonable amount of fees is $5,421.20.

4

The Court concludes that a reasonable amount of fees is $41,251.30. The Court reaches this

5 number by deducting from the original lodestar ($43,623.00) all time spent exclusively on the deposition

6 portion of the motion to compel ($3,037.00), as well as an entry plaintiffs acknowledge was erroneously

7 included ($194.00), for a total of $40,392.00, then deducting 10% ($4,039.20) from that adjusted figure, 8 and awarding fees for the motion and reply ($4,898.50).2 Although plaintiffs moved to compel

9 additional depositions in the same motion to compel document production, the Court understood

10 plaintiffs to be seeking sanctions based on defendant’s repeated failures to comply with the Court’s

11 orders regarding document production. See Docket No. 454 at 7. It was on this ground that the Court

12 awarded sanctions.

13

However, the Court rejects defendants’ contention that mixed entries – those reflecting work

14 performed on both the document and the deposition portions of the motion to compel – should be

15 eliminated. Plaintiffs’ counsel states that the majority of time was spent on the document production

16 issues. See Wallace Reply Decl. ¶ 5. The Court notes that the issues related to the document production

17 were far more complicated than those related to the depositions, and thus finds it likely that a majority 18 of time contained in the mixed entries is attributable to the document production portion of the motion

19 to compel. Further, the Court finds that plaintiffs’ 10% billing judgment deduction sufficiently
20 2 The erroneously included time entry is 8/28/06 GBW $194 “conf with Davis re preparation of
21 separate motion to compel re Gonzales; review and analysis of same.” See Wallace Reply Decl. ¶ 4. These excluded deposition time entries are: (1) 8/9/06 GBW $242.50 “conf with TMS re D’s failure to
22 produce proper PMK designees re safety, checkrides, performances reviews & responses to same”; (2) 8/10/06 GBW $145.50 “conf with CJB and Douglas re D’s failure to produce proper PMK designees”;
23 (3) WHW $590.00 “draft m/c letter re: 30b6 depos”; (4) 8/14/06 $242.50 “conf with TMS re motion to compel adequate Rule 30(b)(6) witnesses re performance reviews”; (5) 8/14/06 GBW $194.00 “conf
24 with Willson and MSD re letter to Douglas re depositions of Koontz and Likong”; (6) 8/14/06 WHW $177 “review of depo transcripts of 30b6 deponents for m/c letter re: failure to produce adequate 30b6
25 witnesses; (7) 8/14/06 WHW $147.50 “conf w/ MSD and GBW re: depositions still needed for named Ps’ claims; possible motion to compel depositions after discovery cutoff”; (8) 8/14/06 WHW $118
26 “drafting m/c letter to OC re: additional depos needed”; (9) 8/15/06 WHW $885 “draft meet and confer letter to OC re: inadequate witnesses for 30b6 depos; (10) 10/2/06 WHW $236 “drafting reply for MTC
27 re: 30b6 depos, depos of Koontz and Likong”; and (11) 10/2/06 WHW $59 “conf w/ GBW re: MTC re 30b6, Koontz, Likong depos.” Wallace Decl. Ex. B. The Court is satisfied that the 10/3/06 entry for
28 Michael Davis relates to the motion to compel. See Davis Reply Decl ¶¶ 3-5.

2

Case3:03-cv-02659 Document529 Filed12/05/06 Page3 of 4

United States District Court
For the Northern District of California

1 addresses any concern that plaintiffs will recover for work related to the depositions.

2

Defendant’s remaining objections lack merit. Plaintiffs are entitled to recover for time spent on

3 the meet and confer process. As defendant acknowledges, plaintiffs were required by the local rules to

4 meet and confer with defendant prior to filing the motion to compel. Indeed, the meet and confer

5 process is of even greater importance prior to seeking discovery sanctions for failure to comply with

6 Court orders.

7

The Court also rejects defendant’s contention that some time entries are too vague. The billing

8 entries identified by defendant in Table 3 of the opposition are sufficiently detailed to allow the Court

9 to identify the work performed. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Dennis v. Chang,

10 611 F.2d 1302, 1308 (9th Cir. 1980). For example, one time entry to which defendant objects states,

11 “Legal research and analysis re D’s duty to make up orderly production of documents pursuant to Rule

12 34(b).” This entry is both specific and relevant to the motion to compel documents, as defendant

13 contended that it had satisfied its obligations by making documents available at various FedEx offices.

14 Similarly, defendant objects that “Drafting reply re: MTC, various charts to append” is too vague.

15 However, as defendant is aware, plaintiffs’ reply included an extensive chart detailing what discovery

16 had been provided for the named plaintiffs and the comparators in response to defendant’s assertions

17 that its production had been sufficient.

18

The Court also rejects defendant’s contention that plaintiffs’ counsel spent too much time

19 “conferencing” and “reviewing” in connection with the motion to compel. Defendant has failed to show

20 that any of the time entries listed in Table 5 were duplicative or unnecessary. Conferences are necessary

21 to allow counsel to coordinate, communicate ideas, and give and receive instructions. Similarly,

22 defendant has not demonstrated that plaintiffs’ counsel spent an excessive amount of time reviewing

23 defendant’s opposition papers, which raised numerous arguments and were over 100 pages in length.

24 The Court also notes that many of the time entries contained in Table 5 reflect time spent revising the

25 motion to compel papers; again, defendant has not shown that any of this time was expended

26 unnecessarily.

27

Finally, the Court finds the amount of time plaintiffs’ counsel spent on the motion to compel to

28 be reasonable in light of the fact that discovery in this case has been contentious, complicated, and far-

3

Case3:03-cv-02659 Document529 Filed12/05/06 Page4 of 4

United States District Court
For the Northern District of California

1 ranging. Preparation of the motion to compel required plaintiffs to reconstruct several years of discovery

2 requests and numerous disparate productions by defendant, and to determine what gaps existed in

3 defendants’ production and how defendant had violated the Court’s several prior orders.

4

For the foregoing reasons and good cause shown, the Court hereby ORDERS defendant to pay

5 plaintiffs $41,251.30 in sanctions. Defendant shall pay the sanctions no later than December 31, 2006.

6 If defendant is unable to meet this deadline, defendant may request an extension of time stating the good

7 cause for such an extension.

8

IT IS SO ORDERED.

9

10 Dated: December 5, 2006 11

SUSAN ILLSTON United States District Judge

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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

CaseCa3s:0e33-:c0v3--0c2v6-0529659DoDcoucmuemnet n5t25894 FFilieledd1021//0157//200706PagPea2goef 22 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

SF1 28270132.1 / 24571-000006

 
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

10

DERRICK SATCHELL, KALINI BOYKIN,

Case No.: C03-2659 SI; C 03-2878 SI

11 VALERIE BROWN, RICK GONZALES,

CYNTHIA GUERRERO, RACHEL HUTCHINS, CLASS ACTION

12 TYRONE MERRIT, KELVIN SMITH, SR., and

KEN STEVENSON, on behalf ofthemselves and [PROPOSED] ORDER (1)

13 all others similarly situated,

PRELIMINARILY APPROVING CLASS

ACTION SETTLEMENT, (2)

14

Plaintiffs,

PROVISIONALLY CERTIFYING

SETTLEMENT CLASSES, (3) DIRECTING

15 vs.

DISTRIBUTION OF NOTICE OF THE

SETTLEMENT, AND (4) SETTING A

16 FEDERAL EXPRESS CORPORATION, a

SCHEDULE FOR THE FINAL

Delaware Corporation,

SETTLEMENT APPROVAL PROCESS

17

Defendant.

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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT

CaseCa3s:0e33-:c0v3--0c2v6-0529659DoDcoucmuemnet n7t27429 FFilieledd0044//0193//200707PagPea2goef 216of 16

1

I.

INTRODUCTION

2

The Court certified this case as a class action on September 28,2005, and the parties completed

3 substantially all pre-trial preparation. Under the supervision of a mediator, Plaintiffs and Defendant

4 FedEx Express ("FedEx Express") (collectively, the "Parties") engaged in lengthy settlement

5 discussions over the course of several months in order to negotiate a settlement of this litigation. The

6 terms ofthe proposed settlement ("Settlement") are set forth in this Preliminary Approval Order,

7 which has been jointly approved and proposed by both Parties, and in the [Proposed] Consent Decree

8 ("Decree") (attached hereto as Exhibit 1).

9

On April 9, 2007, the parties jointly submitted this [Proposed] Order, and Plaintiffs filed a

10 Motion for an Order Preliminarily Approving Class Action Settlement, Provisionally Certifying

11 Settlement Classes, Directing Distribution of Notice of the Settlement, and Setting a Schedule for the

12 Final Settlement Approval Process. In their Motion, Plaintiffs requested that the Court grant

13 conditional certification of settlement classes of African American and Latino hourly employees and

14 African American Operations Managers under Rule 23(b)(3) for monetary relief (with a right to opt

15 out of the settlement pursuant to Fed.R.Civ.Proc. 23(e)(3)) and under Rule 23(b)(2) for injunctive

16 relief (with no opt out right). Plaintiffs also requested that the Court grant preliminary approval to the

17 [Proposed] Consent Decree, including the injunctive relief, proposed plan of allocation to class

18 members, and service payments to Class Representatives and 18 additional declarants ("Declarants").

19 Plaintiffs also requested that the Court approve a proposed Notice of Proposed Settlement of Class

20 Action Lawsuit and Fairness Hearing ("Class Notice," attached hereto as Exhibit 2) and a proposed

21 Claim Form (attached hereto as Exhibit 3).

22

Having reviewed the [Proposed] Consent Decree and Motion, along with the files and records

23 of this case, the Court now FINDS, CONCLUDES, and ORDERS as follows: 24

25

II.

LITIGATION BACKGROUND

26

On December 12,2002, Plaintiffs filed the Satchell case in the Alame.da County Superior

27

28
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1 Court, which they amended on May 18,2003. On June 6, 2003, Defendants removed the case to the

2 Northern District of California pursuant to 28 U.S.C. §§ 1332 and 1441(b). On June 19,2003,

3 Plaintiffs filed the Caldwell case in the Northern District of California alleging that FedEx Express

4 violated 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 by discriminating against its

i

5 African American and Latino employees on the basis of race and national origin. On September 25,

6 2003, the Court issued an order relating the Caldwell and Satchell cases, and on November 13,2003,

7 pursuant to a stipulation of the parties, the cases were consolidated for all purposes.

8

Plaintiffs' First Consolidated Amended Complaint was filed on November 12,2003, and the

9 operative Third Amended Consolidated Complaint was filed on November 14,2006. The named
10 plaintiffs are Derrick Satchell, Kalini Boykin, Valerie Brown, Rick Gonzales, Cynthia Guerrero,
11 Rachel Hutchins, Tyrone Merritt, Kelvin Smith, Sr., and Ken Stevenson. Plaintiffs allege that, in
12 violation of Title VII and Section 1981, FedEx Express discriminates against its African American and
13
14 Latino hourly employees with respect to promotions, compensation, and discipline, and discriminates
15 against its African American Operations Managers with respect to compensation and discipline.

16 Specifically, Plaintiffs allege that FedEx Express's use of the Basic Skills Test ("BST") as a selection

17 device for certain hourly jobs violates Title VII because the test has a disparate impact on African
18 Americans and Latinos and cannot be justified by business necessity, and that FedEx Express uses
19 overly subjective practices with respect to promotions, compensation, and discipline that both allow
20 intentional discrimination against African Americans and Latinos and have a disparate impact on
21
22 African Americans and Latinos which cannot be justified by business necessity.

23

FedEx Express denied, and continues to deny, all of the allegations in the complaint, and

24 specifically denies that it has discriminated against its African American and Latino employees, or that
25 it has any liability in this matter. 26
On September 28, 2005, the Court certified two classes: 27

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1

1. A "Minority Employee Class" consisting of all African-American and Latino Handlers,

Freight Handlers, Material Handlers, Checker-Sorters, Customer Service Agents, Couriers,

2

Swing Drivers, Ramp Transport Drivers, Ramp Area Drivers, Shuttle Drivers, Dangerous

3

Goods Agents, Information Agents, Operations Agents, Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Input Auditors, Team Leaders, and

4

Dispatchers, working in defendant's Western Region, who are or were employed during the

class period, who allege claims of employment discrimination in violation of Title VII of the

5

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

6

Employment and Housing Act; and

7

2. An "African-American Lower-Level Manager Class" consisting of all African-American

8

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

9

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

10

Act.

11

12

The parties vigorously litigated the case, including filing numerous motions to compel

13 discovery, summary judgment motions against six of the Class Representatives, and 21 motions in

14 limine. The parties also substantially completed pretrial preparation, including the exchange of
15 proposed exhibits and verdict forms.
16

17 III. CERTIFICATION OF SETTLEMENT CLASSES
18 For settlement purposes only, the Parties have proposed conditional certification of the
19
20 following settlement classes:
For purposes of the injunctive and declaratory relief provided in the Decree, injunctive-relief 21
22 classes certified under Federal Rule of Civil Procedure 23(b)(2) and consisting of:
1. All Minority employees of the AGFS or DGO Divisions of FedEx Express who 23
are or were employed in the position of Handlers, Freight Handlers, Material Handlers, Checker24
Sorters, Customer Service Agents, Couriers, Swing Drivers, Ramp Transport Drivers, Ramp Area 25
Drivers, Shuttle Drivers, Dangerous Goods Agents, Information Agents, Operations Agents, Ramp 26
Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Import Auditors, 27

28
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1 Team Leaders, and Dispatchers in the COMATs that comprise the Western Region at any time

2 between October 17, 1999, and the end of the Decree.

3

2. All African American employees of the AGFS and DGO Divisions ofFedEx

4 Express who are or were employed in the position of Operations Managers in the COMATs that

5 comprise the Western Region at any time between October 17, 1999, and the end of the Decree.

6

For purposes of the monetary relief provided in the Decree, a Settlement Class certified under

7 Federal Rule of Civil Procedure 23(b)(3) and consisting of:

8

3. All Minority employees of the AGFS or DGO Divisions of FedEx Express who

9 are or were employed in the position of Handlers, Freight Handlers, Material Handlers, Checker-

10 Sorters, Customer Service Agents, Couriers, Swing Drivers, Ramp Transport Drivers, Ramp Area

11 Drivers, Shuttle Drivers, Dangerous Goods Agents, Information Agents, Operations Agents, Ramp

12 Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Import Auditor,

13 Team Leaders, and Dispatchers in the COMATs that comprised the Western Region at any time

14 between October 17, 1999, and the Preliminary Approval Date, who do not timely opt out.

15 All African American employees of the AGFS or DGO Divisions of FedEx Express who are or were

16 employed in the position of Operations Managers in the COMATs that comprised the Western Region

17 at any time between October 17, 1999, and the Preliminary Approval Date who do not timely opt out.

18

The Court previously considered and ruled upon Plaintiffs' Motion for Class Certification, and

19 found that the classes proposed by Plaintiffs satisfied all requirements of Rule 23(a) and Rule 23(b)(2).

20 The differences between the classes certified by the Court in September 2005 and the Classes certified

21 by this order are that (1) the Classes certified by this order are divided into (a) opt-out Settlement

22 Classes under Rule 23(b)(3) for monetary relief and (b) non-opt-out Classes under Rule 23(b)(2) with

23 respect to injunctive relief; and (2) the Class Periods for membership in the respective Classes are

24 defined as (a) October 17, 1999 through the date of Preliminary Approval for the Monetary Relief

25 Settlement Class, and (b) October 17, 1999 through the end of the term of the Consent Decree for the

26 Injunctive Relief Classes.

27

28
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1

As with the Classes certified on September 27,2005, the proposed injunctive-relief and

2 Settlement Classes allege claims for race and national origin discrimination brought under the Civil

3 Rights Act of 1964 (both disparate impact and disparate treatment), 42 U.S.C. §1981, and, for those

4 Class Members working, or who worked, in California, the California fair Employment and Housing

5 Act.

6

Based on the previously filed class certification papers, and this Court's prior findings and

7 rulings thereon, the Court hereby FINDS and CONCLUDES that the injunctive-relief classes set forth

8 above satisfy all ofthe requirements for certification under Rule 23(a) and Rule 23(b)(2), and the

9 COURT hereby CERTIFIES those injunctive-relief classes.

10

Based on the previously filed class certification papers, and this Court's prior findings and

11 rulings thereon, the Court also hereby FINDS and CONCLUDES that the monetary-relief Settlement

12 Class described above satisfies all of the requirements for certification under Rule 23(a). In addition,

13 having carefully considered the papers filed in connection with this motion, the entire record in this

14 case, the arguments of counsel, and the requirements of Rule 23(b)(3), the Court FINDS and

15 CONCLUDES that the monetary-relief Settlement Class satisfies the requirements for certification

16 under Rule 23(b)(3). Questions of law or fact common to the class predominate over individualized

17 issues, and a class action is superior to other available methods for the fair and efficient adjudication of

18 the controversy. Because certification of the monetary-relief Settlement Class is proposed in the

19 context of a sett;lement, the Court need not inquire whether the case, if tried as a class action, would

20 present intractable management problems. The Court hereby CERTIFIES the monetary-relief

21 Settlement Class as set forth above.

22

IV. APPOINTMENT OF CLASS REPRESENTATIVES AND CLASS COUNSEL

23

The Court previously found eight of the Class Representatives to be typical and adequate, and

24 appointed them as Class Representatives. In its Class Certification Order, the Court ordered Plaintiffs

25 to add a Class Representative who had a claim regarding the BST, and Plaintiff did so. The Court

26 hereby finds that the newly-named Class Representative, Tyrone Merritt, is also typical and adequate,

27 and may serve as a Class Representative. Accordingly, for settlement purposes, this Court hereby

28
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1 appoints Derrick Satchell and Kalini Boykin as Class Representatives for the Operations Manager

2 Class and Valerie Brown, Rick Gonzales, Cynthia Guerrero, Rachel Hutchins, Tyrone Merritt, Kelvin

3 Smith, Sr., and Ken Stevenson as Class Representatives for the Minority Employee Class.

4

This Court previously appointed seven law firms as Class Counsel. Plaintiffs have proposed

5 that Barry Goldstein be appointed additional Class Counsel. Mr. Goldstein has extensive experience

6 and expertise in litigating, settling, and monitoring cases of this sort. Accordingly, for purposes of

7 settlement and conditional certification of the Settlement Class, the following are appointed Class

8 Counsel: Altshuler Berzon LLP; Barry Goldstein, of counsel to Goldstein, Demchak, Baller, Borgen,

9 and Dardarian; Law Office of John Burris; Law Offices of Michael S. Davis; Law Offices ofWaukeen

10 McCoy; Law Offices of Kay McKenzie Parker; Lieff, Cabraser, Heimann & Bernstein, LLP; and

11 Schneider & Wallace.

12

13

v. PRELIMINARY APPROVAL OF CONSENT DECREE

14

The Court has reviewed the terms of the [Proposed] Consent Decree attached as Exhibit 1,

15 including specifically the injunctive relief provisions and the plan of allocation, and the Plaintiffs'

16 description of the settlement in the Motion papers. The Court has also read and considered the

17 declarations of James M. Finberg and Barry Goldstein in support of preliminary approval. Based on

18 review of those papers, and the Court's familiarity with this case, the Court concludes that the

19 settlement and Consent Decree are the result of extensive, arms' - length negotiations between the

20 Parties after lengthy and exhaustive litigation, including thorough discovery and extensive motion

21 practice and pre-trial preparation. The assistance of an experienced mediator in the settlement process

22 confirms that the settlement is non-collusive. Based on that review, and the Court's familiarity with

23 the issues in the case, the Court concludes that the proposed Consent Decree has no obvious defects

24 and is within the range of possible settlement approval, such that notice to the Class is appropriate.

25

IT IS THEREFORE ORDERED THAT:

26

1. The [Proposed] Consent Decree and the settlement it embodies are hereby

27 PRELIMINARILY APPROVED. Final approval and entry of the Consent Decree is subject to the

28
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1 hearing of any objections of members of the Settlement Class to the proposed settlement embodied in

2 the Consent Decree.

3

2. Pending the determination of the fairness of the Consent Decree, all further litigation of

4 this action is hereby STAYED, the trial scheduled to begin on May 7, 2007 is POSTPONED

5 indefinitely and all rulings on all pending motions before the Court are hereby DEFERRED.

6

7

VI. APPROVAL OF THE FORM AND MANNER OF DISTRIBUTING CLASS

NOTICE AND CLAIM FORM 8

9

The Parties have also submitted for this Court's approval a proposed Class Notice and a

10 proposed Claim Form, which the Court has carefully reviewed.

11

The proposed Class Notice appears to be the best notice practical under the circumstances and

12 appears to allow Class Members a full and fair opportunity to consider the proposed Settlement and

13 develop a response. The proposed plan for distributing the Class Notice and Claim Form, which is to

14 be attached to the Class Notice, likewise appears to be a reasonable method calculated to reach all

15 members of the Class who would be bound by the Settlement. Under this plan, the Claims

16 Administrator will distribute the Class Notice to Settlement Class Members by first class U.S. Mail.

17 There appears to be no additional method of distribution that would be reasonably likely to notify

18 Class Members who may not receive notice pursuant to the proposed distribution plan.

19

The Class Notice fairly, plainly, accurately, and reasonably informs Class Members of:

20 (1) appropriate information about the nature of this litigation, the settlement class, the identity of Class

21 Counsel, and the essential terms of the Settlement and Decree, including injunctive relief and the plan

22 of allocation; (2) appropriate information about Class Counsel's forthcoming application for attorneys'

23 fees, the proposed service payments to Class Representatives and Declarants, and other payments that

24 will be deducted from the settlement fund; (3) appropriate information about how to participate in the

25 Settlement; (4) appropriate information about this Court's procedures for final approval of the

26 Settlement Agreement and Settlement, and about class members' right to appear through counsel if

27 they desire; (5) appropriate information about how to challenge or opt-out of the Settlement, if they

28
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1 wish to do so; and (6) appropriate instructions as to how to obtain additional information regarding this

2 litigation, the Settlement, and the Decree.

3

Similarly, the proposed Claim Form appears to allow members ofthe Settlement Classes a full

4 and fair opportunity to submit a claim for proceeds in connection with the Settlement. Moreover, the

5 Claim Form fairly, accurately, and reasonably informs Settlement Class Members that failure to

6 complete and submit a Claim Form, in the manner and time specified, shall constitute a waiver of any

7 right to obtain any share of the Settlement Payment.

8

The Court, having reviewed the proposed Class Notice and Claim Form (collectively ''Notice

9 Materials"), finds and concludes that the proposed plan for distributing them will provide the best

10 notice practicable, satisfies the notice requirements of Rule 23(e), and satisfies all other legal and due

11 process requirements. Accordingly, the Court hereby ORDERS as follows:

12 A. The form and manner of distributing the proposed Notice
13
Materials are hereby approved. 14

15

B. Promptly following the entry of this Order, the Claims

16 Administrator shall prepare final versions of the Notice Materials, incorporating into the
17 Notice the relevant dates and deadlines set forth in this Order. 18
C. Within twenty days following the Preliminary Approval Date, 19
20 FedEx Express shall provide the Claims Administrator with computer readable information, in

21 a format acceptable to the Claims Administrator, that contains the full names, social security

22 numbers, FedEx Express employee rD, last known addresses and phone numbers, start dates
23 and, as applicable, end dates of employment with FedEx Express from October 17, 1999 to the 24
date of Preliminary Approval in class positions, class positions held (and date for each 25
position, and status as casual, part-time, or full time), first date that the employee took and
26
failed at least one portion of the BST, and the date of any subsequent passage of all portions of 27

28
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1 the BST.
2
D. Within twenty days following the Preliminary Approval Date, 3
Class Counsel shall provide the Claims Administrator with a computer readable list of all 4
known potential Settlement Class members and their mailing addresses. Prior to the mailing 5
6 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

8 information for potential class members as may be available through the National Change of

9 Address ("NCOA") system. 10
E. Within 40 days of the Preliminary Approval Date, the Claims 11 12 Administrator shall mail, via first class postage, the Notice Materials to all known potential
13 Settlement Class members at their last known address or at the most recent address that may

14 have been obtained through the NCOA. The Claims Administrator will trace all returned

15 undeliverable notices and re-mail to the most recent address available.
16 F. The Claims Administrator shall take all reasonable steps to
17 18 obtain the correct address of any Class Members for whom the notice is returned by the post
19 office as undeliverable and otherwise to provide the Class Notice. The Claims Administrator

20 shall notify Class Counsel of any mail sent to Class Members that is returned as undeliverable

21 after the first mailing as well as any such mail returned as undeliverable after any subsequent

22 mailing(s).
23
24

G. The Claims Administrator shall take all other actions in

25 furtherance of claims administration as are specified in the Decree.

26
27
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1

VII. Procedures For Final Approval Of The Settlement

2

A. Fairness Hearing

3

The Court hereby schedules a hearing to determine whether to grant final certification of the

4 Settlement Classes, and final approval of the Consent Decree (including the proposed plan of

5 allocation, injunctive relief, payment of attorneys' fees and costs, and service payments to the Class 6 Representatives and the Declarants) (the "Fairness Hearing") for .A_ug_us_ t 9,_20_ 07_ (date) at _3_:30_.p.m.

7 (time) [August 10,2007, at 9:00 am, or another day and time approximately 100 days from

8 Preliminary Approval Date]. If any attorney will be representing a class member objecting to the

9 Consent Decree, the attorney shall file a notice of appearance with the Court and serve counsel for all

10 parties at least 14 days before the Fairness Hearing.

11

B. Deadline To Request Exclusion From The Settlement

12

Class members may exclude themselves, or opt-out, of the monetary relief provisions of the

13 class settlement. Any request for exclusion must be in the form of a written "opt-out" statement sent to 14 the Claims Administrator. Information on how to opt-out ofthe settlement shall be made available by

15 the Claims Administrator. A person wishing to opt-out must sign a statement which includes the

16 following language:

17

I understand that I am requesting to be excluded from the class monetary settlement and

18

that I will receive no money from the settlement fund created under the Consent Decree

19

entered into by FedEx Express. I understand that if! am excluded from the class

monetary settlement, I may bring a separate legal action seeking damages, but may

20

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

21

exclusion from the class for injunctive relief and that I am bound by the injunctive

22

provisions of the Consent Decree entered into by FedEx Express.

23

To be effective, any opt-out statement must be sent to the Claims Administrator at the address

24 provided in the Class Notice via First Class United States Mail, postmarked no later than 45 days after

25 the Claims Administrator first mails the Class Notice to the Class. Only those class members who
26 request exclusion in the time and manner set forth herein shall be excluded from the class for monetary
27 relief purposes. Pursuant to Federal Rules of Civil Procedure 23(b)(3) and (c)(2), the terms and

28
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1 provisions of the Consent Decree concerning monetary relief shall have no binding effect on any

2 person who makes a timely request for exclusion in the manner required by this Order.

3

The Claims Administrator shall date stamp the original of any opt-out statement and serve

4 copies on both FedEx Express and Class Counsel via facsimile and overnight delivery within two (2)

5 business days of receipt of such statement. The Claims Administrator will also file the original opt-out

6 statements with the Clerk of the Court no later than five (5) days prior to the scheduled Fairness

7 Hearing date. The Claims Administrator shall retain copies of all opt-out statements until such time as

8 it has completed its duties and responsibilities under this Decree.

9

Class members shall be permitted to withdraw or rescind their opt-out statements by submitting

10 a "rescission of opt-out" statement to the Claims Administrator. The rescission of opt-out statement

11 shall include the following language:

12 I previously submitted an opt-out statement seeking exclusion from the class monetary

13

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 the

14

claims settlement fund and may not bring a separate legal action against FedEx Express

15

seeking damages with respect to the Released Claims.

16

A class member wishing to submit such a rescission statement shall sign and date the statement

17 and cause it to be delivered to the Claims Administrator no later than 52 days after the Claims

18 Administrator first mails Class Notice.

19

The Claims Administrator shall stamp the date received on the original of any rescission of opt-

20 out statement and serve copies to counsel for FedEx Express and Class Counsel via facsimile and

21 overnight mail no later than two business days after receipt thereof and shall file the date-stamped

22 originals with the Clerk of the Court no later than five business days prior to the date of the Fairness

23 Hearing. The Claims Administrator shall retain copies of all rescissions of opt-out statements until

24 such time as the Claims Administrator is relieved of its duties and responsibilities under this Decree.

25

c. Defendant's Right to Rescind Agreement

26

If the number of individuals who opt out of the Settlement Class in the manner provided in this

27 Order exceeds 50 (not including persons who have, before April 6, 2007, filed and served lawsuits,

28
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1 other than the Satchell and Caldwell lawsuits, alleging race or national origin discrimination in

2 compensation, promotion, or discipline that allegedly occurred during the Class Period), then FedEx

3 Express, at its sole option, shall have the right to void the Settlement on the fifth business day after the

4 Court requires individuals to return rescission of class member opt-outs. If FedEx Express exercises

5 this option, all of FedEx Express's obligations under the Consent Decree shall cease to be of any force

6 and effect, and the Consent Decree and any orders entered in connection therewith shall be vacated,

7 rescinded, canceled, and annulled, and the parties shall return to the status quo in the Civil Action as if

8 the parties had not entered into the Consent Decree. In addition, in such event, the Consent Decree and

9 all negotiations, court orders, and proceedings relating thereto shall be without prejudice to the rights

10 of any and all parties thereto, and evidence relating to the Consent Decree and all negotiations shall not

11 be admissible or discoverable in the Civil Action or otherwise.

12

D. Deadline for Filing Objections to Settlement and [Proposed] Consent Decree

13

Any Class Member who wishes to object to the fairness, reasonableness or adequacy of the

14 Settlement Agreement or the Settlement must do so in writing, although Class Members objecting to

15 the Settlement may also appear at the Fairness Hearing. To be considered, any objection to the final

16 approval of the Consent Decree must state the basis for the objection and must be timely filed in

17 writing, along with any other papers the class member wishes the Court to consider, with the Claims

18· Administrator, at the address provided in the Class Notice, via First-Class United States mail, postage

19 prepaid, postmarked no later than no later than 45 days after the date that Class Notice is first mailed

20 by the Claims Administrator. An objector who wishes to appear at the Fairness Hearing, either in

21 person or through counsel hired by the objector, must state his or her intention to do so at the time the

22 objector submits hislher written objections. Any member of the class who does not timely file and

23 serve such a written objection shall not be permitted to raise such objection, except for good cause

24 shown, and any member ofthe class who fails to object in the manner prescribed herein shall be

25 deemed to have waived, and shall be foreclosed from raising, any such objection.

26

The Claims Administrator shall stamp the date received on the original of any objection and

27 send copies of each objection to the Parties by facsimile and overnight delivery not later than two

28
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1 business days after receipt thereof. The Claims Administrator shall also file the date-stamped originals

2 of any objections with the Clerk of Court within three business days after the time for filing objections

3 ends.

4

If objections are filed, Class Counselor counsel for FedEx Express may engage in discovery

5 concerning the filed objections prior to the Fairness Hearing.

6

E. Deadline For Submitting Claims Form

7

A Class Member who does not opt out will be eligible to receive his or her proportionate share

8 ofthe settlement benefit. To receive this share, such a Class Member must properly and timely

9 complete a Claim Form in accordance with the terms ofthe Consent Decree. To be effective, the

10 Claim Form must be sent to the Claims Administrator at the address provided in the Class Notice by

11 First Class United States Mail, postage prepaid, postmarked no later than 70 days after the initial

12 mailing of the Class Notice to class members. Failure to postmark a completed Claim Form by the

13 Claim Filing Deadline shall bar the Settlement Class member from receiving any monetary award

14 pursuant to the proposed Consent Decree. Settlement Class members who do not file timely and valid

15 Claim Forms shall nonetheless be bound by the judgment and release in this action as set forth in the

16 proposed Consent Decree, unless that Settlement Class member timely opts-out of the Settlement.

17

It shall be the sole responsibility of each member of the Settlement Class who seeks a monetary

18 award to notify the Claims Administrator if the class member changes his or her address. Failure of a

19 Settlement Class member to keep the Claims Administrator apprised of his or her address may result in

20 the claim being denied or forfeited.

21

F. Deadline for Submitting Motion Seeking Final Approval.

22

No later than 35 days before the Fairness Hearing, Plaintiffs shall file a Motion for Final

23 Approval of the Settlement and Consent Decree. On or before one week before the Fairness Hearing,

24 the Parties may file with the Court a reply brief responding to any filed obj ections.

25

G. Deadline For Petition for Attorneys Fees

26

Class Counsel shall file with this Court their petition for an award of attorneys' fees and

June 22, 2007 27 reimbursement of expenses no later than]5 says eefefe the FtHffleSS IIearifl:~. Class Counsel may file

28
13
PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1 a reply to any opposition memorandum filed by any objector no later than one week before the

2 Fairness Hearing.

3

H. Deadline for Petition For Approval Of Service Payments

4

Class Counsel shall file with this Court their petition for an award of service payments to the

5 nine Class Representatives and to the 18 Declarants no later than 35 days before the Fairness Hearing.

6 Class Counsel may file a reply to any opposition memorandum filed by an objector no later than one

7 week before the Fairness Hearing.

8

VIII. PLAINTIFFS' AND CLASS MEMBERS' RELEASE

9

If, at the Fairness Hearing, this Court grants Final Approval to the Settlement and Consent

10 Decree, Named Plaintiffs and each individual Settlement Class Member who does not timely opt out

11 will release claims, as set forth in Section VIII of the Consent Decree, by operation of this Court's

12 entry of the Judgment and Final Approval, regardless of whether he or she submits a Claim Form or

13 receives any share of the Settlement Fund.

14

IX. APPOINTMENT OF CLAIMS ADMINISTRATOR

15

Settlement Services, Inc. of Tallahassee, Florida is hereby appointed Claims Administrator to

16 carry out the duties set forth in this Order and the Consent Decree.

17 \\

18 \\

19 \\

20 \\

21 \\

22 \\

23 \\

24 \\

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26 \\

27 \\

28
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PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1

x. DISPOSITION IF SETTLEMENT DOES NOT BECOME FINAL

2

Should this Court or any reviewing court on direct appeal and/or on writ of certiorari to the

3 Supreme Court of the United States from a direct appeal to the U.S. Court of Appeals for the Ninth

4 Circuit refuse to approve this Consent Decree or require modification to this Decree, the Decree (and

5 the stipulated certification of settlement classes) shall be null and void, inadmissible and unusable in

6 any future proceeding and the Decree shall not be considered a binding settlement agreement, unless

7 Plaintiffs and FedEx Express each expressly and voluntarily approve in writing any such required

8 modification by this Court or by the reviewing Court.

9

10

11

12

13

IT IS SO ORDERED.

14

April 13, 2007

15

Dated:

16

17

The Honorable Susan Illston United States District Judge

18

19

20

21

22

23

24

25

26

27

28
15
PROPOSED ORDER GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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Exhibit 1 Part 1

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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, KALINI 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

[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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1 I.

INTRODUCTION.......................................................................................................................... 1

2 II. LITIGATION BACKGROUND .................................................................................................... 1

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 ........................................................................................................................... 10

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

e. 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

[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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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 PROCEDURESIRELATED ISSUES ................................................................. .23

6 XVI. GUARANTEED FAIR TREATMENT SYSTEM ..................................................................... .25

7 XVII. INTERNAL COMPLIANCEIMONITORING 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 [PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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1

L. Allocation Plan .................................................................................................................42

2

M. Distribution of the Monetary Awards ..............................................................................43

3

N. Allocation of Monetary Awards.......................................................................................44

4

O. 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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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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
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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.} 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 of 2004, 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 } On March 19,2004, plaintiff Daniel Sherman voluntarily dismissed his claims without prejudice.

2
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 S1; C 03-2878 S1

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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

7

While the class certification motion was pending, Defendant separately sought summary

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 of 2004 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 ofthe

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
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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 October 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(f), and, on October 14,2005, sought a stay of the district

28

4
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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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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 April 2006, December 2006, February 2007, and March 2007. Under the supervision of the 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
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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 of FedEx Express' Western Region; 10
C. To use Best Efforts within the DGO and AGFS Divisions of FedEx Express' Western 11

Region to compensate, discipline, evaluate, and promote African Americans and Latinos on a non12

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
19

IV. DEFINITIONS

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
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1 v. FedEx Express C03-2878 SI, N. D. Cal.

2

F. "Claims Administrator" means Settlement Services, Inc. of Tallahassee, 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 Michael S. Davis; Schneider and Wallace; and Barry Goldstein, of counsel to

8 Goldstein, Demchak, Baller, Borgen & Dardarian.

9

1.

"Class Member Hourly Position" means any ofthe 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 CourierlDOT; CourierlHandler; CourierlHandlerlNon-DOT;

22 CourierlNon-Driver; Courier Feeder Agent DOT; Courier/Swing Driver/CDL; CourierlNon-DOT;

23 Courier Feeder Agent Non-DOT; CourierlHandler DOT/CDL; CourierIDOT/CDL; Courier Feeder

24 DOT/CDL; Courier/Ramp AgentINon-DOT; Courier/Ramp AgentlCDL; and Courier/Ramp

25 AgentIDOT.

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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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

O. "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 ofthis 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 of the time for filing of a direct appeal from the Court's approval of the 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 of the Consent Decree.

12

R. "Handler" inCludes HandlerlDOT; 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-maker(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 OperationslPrmIAGFS/CDL,

21 Manager Hub International Outbound Operations, Manager Station OperationslPrmlDOT/CDL,

22 Manager Ram Operations/AGFS PrmlCDL, Manager Regional Sort OperationslPrem, Manager Station

23 Operations/CDL, Manager Ramp Operations/CDL, Manager Dispatch Prem Loc, Manager Station

24 OperationslNon-DOTlPrem, Manager Station OperationslNon-DOT, Manager Ramp OperationslNon-

25 DOT, Manager Ramp OperationslPremiumlCDL, Manager BSClPremium Loc, Manager Station/Ramp

26 Operations/CDL, Manager Dispatch!AGT&T, Manager Hub Operations/non-DOT, Manager Station

27 Operations/CDLNol, Manager Station OperationslNon-DOTNol, Manager Retail Operations,

28 Manager Sort/Support Operations, Manager Station Operations/CDL.

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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 XVIILD on the

16 schedule set forth in Section XVIILC.

17

DD. "Service Agent" includes Service AgentIDOT; Service AgentINon-DOT; Senior

18 Service AgentIDOT; Senior Service Agent/non-DOT; Service AgentINon-DOT/non-IPP; and Senior

19 Service AgentINon-DOT/non-IPP.

20

EE. "Settlement Class" is defined in Section VII ofthe Decree.

21

FF. "Term ofthe Decree" means the period described in Section VI ofthe 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 subj ect 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

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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 of FedEx 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 of FedEx 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

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1

1. A Minority Employee Class of all Minority employees of the AGFS or DGO

2 Divisions of FedEx 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 of FedEx 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 of the 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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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 issuaI?-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. 21

Individual Claims of Class Representatives.

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, 98-100, 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

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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 Filial 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

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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 of the 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

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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 of this Decree; or sought andlor received monetary

15 andlor 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

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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 ofthe 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. If FedEx 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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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

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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 XVIlLe.

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

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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 andlor 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

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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 of FedEx 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 African28 Americans or Latinos, FedEx Express shall validate in accordance with the Uniform Guidelines the

21
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I
Ii .

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1 subjective portions ofthe 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

XlV. 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 GLCC 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 GLCC, 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

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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) ofthe

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 ofthe 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 PROCEDURESIRELATED ISSUES

19

1. FedEx Express shall maintain and enforce Policy 5-5 Guaranteed Fair Treatment

20 ProcedurelEEO 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

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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 hereofto 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

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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 COMPLIANCEIMONITORING 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 Human 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 ofthe 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

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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 Counselor 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 of FedEx 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 ofthe

26 Decree or as required by state or federal law, whichever is longer:

27

28

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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.

10

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

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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.

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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 XVA.

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, XIVA, 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.

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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 Counselor 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 Counselor 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 of the 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;

i

i

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 Counselor FedEx

27 Express to take post-settlement discovery as provided by the Federal Rules of Civil Procedure, but 28

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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 Counselor

3 FedEx Express to present the dispute upon a factual record adequate for a fair determination of the

4 Issue;

5

e. Ifthe 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 Counselor 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 Counselor 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 ofthe

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 Counselor 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 andlor 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 Chief Executive Officer of FedEx 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 ofhislher 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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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 XXILA.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 XXIILB 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 XXIILA 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 (10th) 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

(10th) business day after Preliminary Approval and the date FedEx

16

Express wire transfers incremental payments to the Settlement Fund 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
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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 DeclarantlDeponents as Service Awards as set

6 forth in Section XXILB.l.

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.l 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 XXIILB.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, XXILA.2.c and XXILA.2.d to
19 the Settlement Fund Account and in Section XXII.B.2 to Class Counsel as provided in Section
20
21 XXIILB.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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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1 pay any fees or costs to Class Counselor 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.
10

Distribution of Settlement Fund. 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 DeclarantJDeponent. A list of these individuals is contained in

16 Appendix F. This liquidated amount will compensate the Class Representatives and

17 DeclarantJDeponents in consideration for the time and effort expended in these proceedings. Payment

18 ofthese 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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 S1; C 03-2878 S1

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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 ("NCaA")

9 system. Within 40 days ofthe 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 NCaA. 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, bye-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 ofthe 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, ofthe monetary relief provisions ofthe

28

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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 Opt15

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

20

The parties recognize that some class members who initially submit Opt-out statements seeking

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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 Sl .

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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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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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.

10

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

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[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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1 documentation is provided. Claim payments shall be made payable to the estate ofthe 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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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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 Counselor 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 Counselor 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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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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$I,OOO.OO 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 XXILL, 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

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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 o. 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
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1 Q. Report from Claims Administrator.

2

Within thirty days ofthe distribution of the 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
8
9 A.

XXIII. PAYMENT OF FEES AND COSTS TO SPECIAL MASTER, MONITORING COUNSEL AND CLASS COUNSEL
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 of the 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
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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 XXILA.2.d.

11

4. Once FedEx Express makes the payments sets forth in Section XXIILB.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

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772259-1 FilFeidle0d40/40/91/32/0077 PaPgaeg5e2 5o2f 5o8f 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 DeclarantlDeponents and Settlement Class pursuant to Section XXII.B.1 and XXII.B.2 to Class

9 Counsel pursuant to Section XXII1.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 1. 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

.: C03-2659 SI; C 03-2878 SI

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772259-1 FilFeidle0d40/40/91/32/0077 PaPgaeg5e3 5o3f 5o8f 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, 16th Floor

17

San Francisco, CA 94104

18

Telephone: (415) 227-9622 Facsimile: (415) 227-4522

19 20

B~~

Kay McKen e Parker

21

22

Attorneys for the Plaintiffs

23

24

25

26

27

28

49
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 Sl; C 03-2878 Sl

CasCea3se:033:0-c3v--c0v2-06256959 DZIDMoMocERucMumAmNeRenEntEDt772P2L5L9P-1 FFialFxeidl1e-60d1402-/4304/911-/302B/044077 PaPgAaeprg5e465o240f057o8fOB5:58Bam P002/002

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. Dennody (SBN 171716) Daniel E. Barenbaum (SBN 209261) LlEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
By: --~/~~~--------------~-
John L. Burris SBN 69888) LAW OFFICES OF JOHN 1. 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 Sl; C 03-2878 Sl

04/06/07 04/0612007

FRI 1C5a:3sC6ea3sFAe:0X33:0-c3v--c0v2-06256959 DDoocucummeenCnt ht77e22r5y9l-1AFmialFeniadle0d40/40/91/32/0077 PaPgaeg5e5 5o5f 5o8f 58

13:%2 FAX 4153628064

ALTSliULER BERZON

/at 002

I4i 002

/

1 2 3 4 S 6
1 8
9 10 11
12
13 14
lS
16 17 18 19 20 21·
22
23 Datecl: April
24 25
26
27 28

.,2007

Kelly M. Dermody (SBN 171716) Daniel E. Barenbauni (SBN 209261) LIEFF:o CABRASER,HEIMANN &
BERNSTElN~ UP 275 BatreIy ~ 301h Floor SlID Francisco" CA 94111·3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
By:._ _ _ _~_ _- -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
John L. Burris (SBN 69gS8) LAW OmCES OF JOHN L. BURRIS
7677 Oakport ~ Suite 1120 Oak1~ CA 94612 Telephone: (510) 839-5200 ext. 67 Facsimile; (510) 839-3882

Todd M. Schncic:lc:r (SBN 158253)

Guy B. Wallace (SBN 116151)

Joshua Konedcy (SBN 182897)

SCHNEIDER It WALLACE

180 Montgomecy Stree~ Suite 2000

San Francisco, CA 94104

.

Telephone: (415) 421-1100

~a.csimile: (41S) 421·7105

_ B~. __________________________

Michael S. Davis (SBN 160045)
LAW OFFICES OF MICHAEL S. DAVIS
345 Hill Street SaD. Franci5c», CA Telephone: (41~ 282-4315 Facsi:arlle: (415) 358..5576
_ B~. ______________________________
48

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772259-1 FilFeidle0d40/40/91/32/0077 PaPgaeg5e6 5o6f 5o8f 58

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
By:_ _ _ _ _ _ _ _ _ _ _ _ __
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
Todd M. Schneider (SBN 158253) GuyB. Wallace (SBN 176151) Joshua Konecky (SBN 182897) SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: (415) 421-7100 Facsimile: 415) 421-7105
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 SI

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772259-1 FilFeidle0d40/40/91/32/0077 PaPgaeg5e7 5o7f 5o8f 58

et . 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~---
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 81; C 03-2878 S[

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772259-1 FilFeidle0d40/40/91/32/0077 PaPgaeg5e8 5o8f 5o8f 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:_ _ _ _ _ _ _ _ _ _ _ _ __ 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.: C03-2659 SI; C 03-2878 SI

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772269-2 FilFeidle0d40/40/91/32/0077 PaPgaeg1eo1f 5o4f 54
Exhibit 1 Part 2

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772269-2 FilFeidle0d40/40/91/32/0077 PaPgaeg2eo2f 5o4f 54
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

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772269-2 FilFeidle0d40/40/91/32/0077 PaPgaeg3eo3f 5o4f 54
Appendix A

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772269-2 FilFeidle0d40/40/91/32/0077 PaPgaeg4eo4f 5o4f 54

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
BILAIBlLLlNGS. MT GTFRDIWOLF POINT, MT BILRAlMllES CITY. MT BILDAIGLENDIVE. MT GTFAIGREAT FALLS, MT GTFRlGREAT FAlLS, MT GTFRlGREAT FAllS, MT GTFRDIBROWNING, MT GTFRAlLEWJSTOVIIN, MT GTFRB1HAVRE, MT HLNNHELENA, MT BlMSIBUTIE, MT BTMNBUTIE,MT BZNAlBELGRADE. MT MSOAlMlSSOULA. MT MSODNHAMILTON, MT
FCAAIKALISPELL, MT
ELPKlEL PASO, TX ELPIEL PASO, TX ELPRIEL PASO, TX UVANEL PASO, TX ELP/EL PASO, TX ELPRIEL PASO, TX ELPAlEL PASO, TX ELPKAfEL PASO, TX WHHAlARVADA, CO DENRT/AURORA, CO BJCAlENGLEWOOD, CO APACIGREENWOOD VILLAGE· APAHQIENGLEVVOOD. CO APAHQ/GREENWOOD V1LLAG APANENGLEWOOD, CO
APAVflVENGLE~O~CO
APAICENTENNIAL. CO BJCAlLlmETON. CO BKFAIDENVER, CO BKFClDENVER, CO DENAIDENVER, CO DENRIDENVER, CO DENMXlOENVER,CO FNLNBOULDER. CO SBSAISTEAMBOAT SPRINGS SaSAlSTEAMBOAT SPRINGS
EGEAlSILVERTHORNE, CO
FTCClFORT COLUNS, CO FTCBlFORT COLLINS. CO GXYNGREELEY, CO DENRAISTERLING, CO DENRB/LIMON, CO
Page I

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772269-2 FilFeidle0d40/40/91/32/0077 PaPgaeg5eo5f 5o4f 54

Listing of Relevant Comats

Carnat

Comat Description

.,

809160000

COSRlCOLORADO SPRINGS,

809190000

COSSDICOlORADO SPRINGS

809190001

COSA/COLORAOO SPRINGS,

810080000

PUBAIPUEBLO, CO

810520000

PUBRCIlAMAR,CO

810820000

PUBRBlTRINIOAD, CO

811010000

PUBRAlAlAMOSA, CO

811470000

ORODNPAGOSA SPRINGS,

812010000

PUBRD/SALIDA, CO

812300000

MTJDAlGUNNlSON, CO

813010000

DROAIDURANGO. CO

814010000

MTJAIMONTROSE, CO

815060000

GJTAlGRAND JUNCTION, C

815060002

GJTRlGRAND JUNCTION, C

816210000 816310000

ASEAlBASALT, CO
GWSAlEAGLE, co

820010000

CYSNCHEYENNE, W(

820700000

CYSONLARAMIE, W'(

824140000

RIWDNCOOY, W'(

825010000

R1WNRNERTON, WY

826010000

CPRAICASPER, W'(

826040000

CPRRlCASPER, WY

627180000

GCCNGILLETIE, W'(

628010000

SHRNSHERIDAN, WV

829010000

RKSAIROCK SPRINGS, Wf

829310000

SLCRElEVANSTON. w(

829410000

RKSDAIPINEDALE. W(

830010000

JACNJACKSON HOLE, WV

831270000

JACOAfTHAYNE, Wf

832010000

PIHAIPOCATELLO,IO

832260000

1000BlCHAlUS, 10

832540000

PIHONMONTPEUER, 10

833010000

TWFAITWIN FALLS, 10

833330000

SUNAlHAlLEY,IO

834020000

10AAlIDAHO FALLS, 10

834670000

IDADAISALMON. 10

835010001

LWSAILEWISTON, 10

835300000

LWSRAIGRANGEVILLE, 10

836060000

BOIDBICALDWELL, 10

836380000

BOIOC/MC CALL, 10

836470000

BOIDAIMOUNTAIN HOME, ,

837050000

BOIVMXlBOISE, 10

837050001

BOIAIBOISI;, 10

838140000

COEAlCOEUR D'ALENE, ID

8~150000

COENCOEUR D'ALENE. 10

840320000

SLCRBlHEBER CITY, UT

840470000

BTFHOIMIDVALE, UT

840570000

PVUAlOREM, UT

840780000

SLCRANERNAL. UT

Page 2

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772269-2 FilFeidle0d40/40/91/32/0077 PaPgaeg6eo6f 5o4f 54

-
Usting of Relevant Comats

Comat

Comat Description

841010000

SLCCISALT LAKE CITY, U

841040000

SLCRT/SALT LAKE CITY,

841170000

BTFKlSAlT lAKE CllY, U

841190000

BTFAIWEST VALLEY CITY,

841220000

SLCAlSAlT LAKE CllY, U

841220002

SLCRISALT LAKE CITY, U

843210000

LGUDAILOGAN, UT

844050000

OGDAlOGDEN, UT

845010000

PVURCIPRICE, UT

845320000

CNYAIMOAB, UT

846480000

PVUDBJNEPHI, UT

847010000

PVURBJRICHFIELD, UT

847200000

CDCNCEDAR CITY, UT

847410000

SGUDBIKANAB,UT

847700000

SGUAIST GEORGE, UT

850180000

ZSYA1PHOENJX. AZ

650310000

LUFAIPHOENIX, AZ..

650340000

PHXRCJPHOENIX, AZ..

850340001

PHXRlPHOENlX. AZ..

850340002

PHXlPHOENlX, AZ..

850430001

PHXlPHOENIX, AZ

,852040000

MSCHOIMESA, AZ

852540000

SCFB/SCOnSOALE, AZ..

852570000

SCF/SCOlTSDALE, AZ

852810000

DGLAITEMPE, A{.

852810001

PHXAlTEMPE, AZ.

852810003

DGlAfTEMPE, AZ

852820000

MSCBlTEMPE, AZ

852820001

MSCHQfTEMPE, AZ.

852840000

MSCAITEMPE, AZ.

853640000

YUMAlYUMA. AZ

855410000

PAYRD/PAYSON. AZ.

855460000

AVWDO/SAFFORD, AZ..

856350000

AVWAISIERRA VISTA, AZ

857060000

TUSAITUCSON, AZ

857060001

TUSRITUCSON, AZ.

857140000

TUSAITUCSON, AZ

857140001

TUSNTUCSON. AZ.

859010000

PHXRB/SHOW LOW, AZ

860010000

FLGAIFLAGSTAFF.AZ

863140000

PRCAlPRESCOTTVALlEY,

863220000

FlGDAlCAMP VERDE, AZ.

864010000

LHURAIKINGMAN, AZ

864030000

LHUAILAKE HAVASU CITY,

864290000

IFPAlBUUHEAD CITY, AZ

871060000

ABQRJALBUQUERQUE. NM

871060001

AB~ALBUQUERQUE,NM

871070000

ABQAlALBUQUERQUE,NM

871070001

ABaNALBUQUERQUE,NM

i' i

Page 3

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772269-2 FilFeidle0d40/40/91/32/0077 PaPgaeg7eo7f 5o4f 54

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 FMNNFARMINGTON, NM FUN/FARMINGTON, NM
SAFAlSAtrrA FE, NM SAFNSANTA FE. NM
LRUNLAS CRUCES, NM VGTAINORTH LAS VEGAS, VGTDAITONOPAH, NV LASRT/LAS VEGAS, NV LASNLAS VEGAS, NV SLCD/ELY. NV RNODC/FALLON, NV RNONSPARKS, WI
RNOO~NNEMUCCA.NV
CSNDAISTATELlNE, NV RNORJRENO, NV RNOMXIRENO, NV RNOA/RENO, NV CSN/CARSON CIlY, NV EKONELKO, NV SPQAJLOS ANGELES, CA SPQHT/LOS ANGELES, CA SPQC/LOS ANGELES, CA SPQc/LOS ANGELES, CA EMTMOS ANGELES, CA EMTOILOS ANGELES, CA EMTBJlOS ANGELES, CA EMTHQILOS ANGELES, CA EMTIEL MONTE, CA (DELETED) SMOBILOS ANGELES, CA CVRDIHOLLYWOOD, CA CCDA/CULVER CITY, CA CCOTA1LOS ANGELES, CA CCDKlLOS ANGELES, CA CVRNHOLLYWOOD, CA EMTJ/CITY OF COMMERCE, HHRBJLOS ANGELES. CA HHRBlLOS ANGElES, CA LAXRIILOS ANGELES, CA LAXMXfLOS ANGELES, CA lAXACJlOS ANGELES. CA lAXMGlLOS ANGELES, CA LAXWSClLQS ANGELES, CA lAXILOS ANGELES, CA LAXTRlLOS ANGELES, CA LAXPERILOS ANGELES, CA lAXILOS ANGELES,CA lAXSRTILOS ANGELES, CA l.AXILOS ANGELES, CA
Page 4

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772269-2 FilFeidle0d40/40/91/32/0077 PaPgaeg8eo8f 5o4f 54

Listing of Relevant Comats

Comat
9004SOOGl?
900450068
900455202 900480001 900650000 900670000 900670002 900680000 90069000G
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
906060001
908060002 910160000
911010000 911010001 911070000 912030000 913020000 913030000 913210000

Cornat Description
LAXlLOS ANGELES, CA LAXVP/LOS ANGELES, CA LAXSST/LOS ANGELES, CA CCDs/LOS ANGaES, CA JGXNLOS ANGaES, CA CCDClLOS ANGELES, CA CeDE/LOS ANGELES, CA CVRClLOS ANGELES, CA CVRBIWEST HOLLYWOOD, C EMTElLOS ANGELES, CA EMTIILOS ANGELES, CA EMTH/LOS ANGELES, CA EMTFILOS ANGELES, CA EMTClLOS ANGELES, CA CCDD/BEVERLY HILLS, CA CCDHlBEVERLY HILLS, CA LAXRT/COMPTON, CA CCD/CULVER CITY, CA SMOF/CULVER CITY, CA JDYKAlDOWNEV, CA HHRNELSEGUNDO,CA
HHRC~LSEGUNDO,CA
LAXRClEL SEGUNDO. CA LAXBClEL SEGUNDO, CA TOANGAROENA, CA
HHRNHA~HORNE,CA
SMONMARINA DEL REV, C LAXRP/INGLEWOOD, CA LAXRTRNGLEWOOD, CA (DELETED) SMOCISANTA MONICA, CA SMOTA/SANTAMONICA. CA TOAcrrORRANCE, CA JDYAIWHITTIER. CA JDYBfLA PALMA, CA JDYNSANTA FE SPRINGS, TOATe/CARSON. CA TOAAlGARDENA, CA LGBBlLONG BEACH, CA LGBAIlONG BEACH, CA LGBEILONG BEACH, CA
LGBRlLONG BEACH, CA
JGX~ONROVlA, CA JGXCIPASADENA, CA JGXKAlPASADENA, CA JGXTDIPASADENA, CA JGXBlGLENDALE, CA JSNBfCALABASAS. CA JSNAfCANOGA PARK, CA VNYTAINEWHALL. CA
PageS

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772269-2 FilFeidle0d40/40/91/32/0077 PaPgaeg9eo9f 5o4f 54

Wsting of Relevant Comats

Comat
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 BURA/SUN VALLEY, CA BURB/SUN VALlEY, CA VNYBIVALENCIA, CA SFRCJWESTLAKE VILlAGE, SFRBMOODLANO HILLS, C VNYIWAN NUYS, CA VNYKNAN NUYS, CA VNYCiENCINO, CA BURKIBURBANK, CA BURB/BURBANK, CA BURCIBURBANK, CA BURKNSTUDIO CITY, CA BURHOIUNIVERSAl CITY, ONTIBICORONA, CA POCBlEL MONTE, CA POCTAICITY OF INDUSTRY POCAlCllY OF INDUSTRY,
ONTAIONTARIO, CA ONTIA/ONTARIO, CA ONTRT/ONTARIO, CA ONTRIONTARIO, CA ONTCIONTARIO, CA CLDTAICARLSBAD,CA CLDAICARLSBAD, CA CLDHCVCARLSBAD,CA MYFO/EL CAJON. CA ClDKlENCINITAS, CA ClDKAlESCONOIDO, CA MYFClLA JOLLA, CA CLOB/OCEANSlDE, CA
ClDAlSAN MARCOS, CA SANA/SAN DIEGO. CA SANC/SAN DIEGO. CA SOMA/SAN DIEGO. CA SOMSISAN DIEGO, CA MYFBlSAN DIEGO, CA MYFKlSAN 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 CLDHQlSAN DIEGO, CA CLOrC/RANCHO BERNARDO, SOMB/SAN DIEGO, CA
Page 6

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Listing of Relevant Comats

Comat
921730000 922250000 922510001 922620000 923760000 923920000 924080000 925900000 926120000 92;5140000 926140001 92;5140002 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

Cornat Description
SDMBlOTAY MESA, CA LHURBIBLYTHE, CA IPL.AIIMPERIAL, CA PSPAfPALM SPRINGS, CA RIVAIRIALTO, CA DAGAN1CTORVlLLE, CA RIVBISAN BERNARDINO, C HMTAITEMECULA, CA APVNlRVJNE, CA APVHQIIRVINE, CA SNABIIRVlNE, CA APVKI1RVINE, CA NZJAlIRVINE, CA APVF/IRVINE, CA FULTAfBREA, CA NUC/COSTA MESA, CA NUCEICOSTA MESA, CA APVBlEl TORO, CA FUUVFULLERTON,CA LGBBlGARDEN GROVE, CA LGBClGARDEN GROVE, CA JLBKlHUNTINGTON BEACH, NUCHQlHUNTINGTON BEACH JLBAlHUNTINGTON BEACH, APVD/LAGUNA HILLS. CA NUCCINEWPORT BEACH. CA NUCD/NEWPORT BEACH, CA NUCHQlNEWPORT BEACH~C APVElSAN JUAN CAPISTRA SNAGlTUSTlN, CA NZJAlRANCHO SANTA MARG SNAAISANTA ANA, CA SNARISANTA ANA, CA APVAIIRVINE, CA APVFIIRVINE, CA FULBIANAHEIM, CA FULRCIFULLERTON, CA OXRAfOXNARD, CA SFRKlSIMI VALLEY, CA SBAKISANTA BARBARA, CA SBMlGOLETA, CA BFLDAILAKEISABELLA,C VJSANISALIA, CA BFlAIBAKERSFIELD, CA SBPNSAN LUIS OBISPO, SMXRAlPASO ROBLES, CA SMXNSANTA MARlA, CA fYKDAfBISHOP, CA WJFAlLANCASTER, CA
Page 7

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Listing of Relevant Comats

Camat
935500000 935550001 936120000 937270000 937270001 939400000 940100000 940250000 940250001 940400000 940630000 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
PMO/PALMDALE, CA IYKAlRIDGECREST, CA FATNCLOVlS, CA FATAIFRESNO, CA FATRT/FRESNO, CA
MRY~ONTEREY,CA
salc/BURLINGAME, CA PAOAIMENLO PARK, CA PAOAIMENLO PARK, CA COAD/MOUNTAIN VIEW, CA PAOD/REDWOOD CITY, CA SaLA/SOUTH SAN FRANCIS SQLLSISOUTH SAN FRANCI SaLA/SOUTH SAN FRANCIS COAfVSUNNYVALE,CA COABISUNNYVALE, CA
COAJVSUNNYVAL~CA CO~UNNYVALE,CA
SFOISAN FRANCISCO, CA SFO/SAN FRANCISCO, CA SFOAISAN FRANCISCO, CA NOB/SAN FRANCISCO, CA $FOMISAN FRANCISCO, CA JCCAISAN FRANCISCO, CA APCISAN FRANCISCO, CA JCCBlSAN FRANCISCO, CA SFOGfSAN FRANCISCO, CA SFOO/SAN FRANCISCO, CA NOBI/SAN FRANCISCO, CA NDBBlSAN FRANCISCO. CA SFOUSAN FRANCISCO, CA SFQC/SAN FRANCISCO, CA SFOJISAN FRANCISCO, CA APCAISAN FRANCISCO, CA SFOKISAN FRANCISCO, CA SFOAISAN FRANCISCO, CA SFOR/SAN FRANCISCO, CA JMCBAlSAN FRANCISCO, C PAOGIPALO AtTO, CA PAOBIPALO ALTO, CA SOLF/FOSTER CITY. CA SQLHQIFOSTER CITY, CA SOLHQ/FOSTER CITY, CA CCR/CONCORD, CA (DELETED) RHVTBfFAIRFIELD. CA HWDCfFREMONT, CA HWOBlHAYWARO, CA JCEAniAYVVARD,CA CCRAIPACHECO,CA
PageS

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Usting of Relevant Comats

Comal
945680000
945770000
945770001
945830000 945630001
945870000
945870001 945880000
945880001
945880002 945960001 946030000 946030001 946030002 946080000 946080001 946080002 946120000 946210000 946210001 946210002 946210003 948210004 946210005
946210006
946210007 946210008 949010000 949010001 949390000 949540000 950140000
950500000 950600001
950500002 950500003
950500004 950540001
950730000 951100000 951100001
951130000
951310000
951310001
951310002
952050000
952060000 952220000
953400000

Comat Description
lVKAlDUBlIN, CA OAKRT/SAN LEANDRO. CA OAKSC/SAN LEANDRO, CA lVKHQ/SAN RAMON. CA lVKHQ/SAN RAMON, CA HWDAIUNION CITY, CA HWDAIUNION CITY, CA LVKD/PLEASANTON, CA LVKBClPLEASANTON, CA LVKNPLEASANTON,CA CCRBNVALNUT CREEK, CA OAKRT/OAKLAND, CA OAKRSJOAKLAND. CA OAKRT/oAKLAND, CA JEMElEMERYVlLLE, CA JEMAIEMERWILLE, CA JEMElEMERYVlLLE, CA OAKBlOAKLAND, CA OAKNOAKLAND, CA OAKHQ/OAKLAND, CA OAKH/OAKlAND, CA OAKH/OAKLAND, CA OAKRIOAKLAND, CA OAKIP/OAKlAND, CA OAKREIOAKLAND, CA OAKREIOAKLAND. CA OAKNOAKLAND, CA SRFAISAN RAFAEl, CA SRFAISAN RAFAEL, CA SRFBILARKSPUR, CA NOTAIPETALUMA, CA COACICUPERTINO. CA SJCC/SANTA CLARA, CA SJCAfSANTA CLARA, CA SJCRT/SANTA CLARA, CA SJCRT/SANTA CLARA, CA SJCAlSANTA CLARA. CA COAEISANTA CLARA, CA SRUAfSOQUEl, CA SJCH/SAN JOSE, CA SJCR/SAN JOSE, CA SJCGlSAN JOSE, CA RHVAlSAN JOSE, CA SJCBAfSAN JOSE, CA RHVAlSAN JOSE, CA SCKAlSTOCKTON, CA SCKAlSTOCKTON, CA SCKRAfANGELS CAMP, CA MCEAlMERCED, CA
Page 9

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Listing of Relevant Comats

Comat
953510000
953510001 953700000 954030000 954820000 955010001 955310000 956280000 956700000 956780000
957650000
958140000 958140001 958150000
958150001
958150002 958260000
·958260002
958370000 958370001 958380000
958380001
959260001 959450000 959910000 960020000 960020001
960200000
960670000 960930000 960970000
961010000
961300000 961600000 967200000 967320000 967320001 967400000 . 967610000 967660000 968190000 968190001 968190002 968250000 970050000 970310000
970620000
971030000
971380000

Cornat Description
MODAIMODESTO, CA MODAIMODESTO, CA MODRAISONORA. CA STSAISANTA ROSA, CA UKiNUKIAH. CA EKAAIEUREKA, CA CECNCRESCENT CITY, CA MHRBlFAIR OAKS, CA MHRAlRANCHO CORDOVA, C AUNNROCKLlN, CA AUNAIROCKLlN,CA SMFBJSACRAMENTO, CA
SMFRT~ENTO,CA
SMFRCfSACRAMENTO, CA SMFfSACRAMENTO. CA
SMF~SACRAMENTO,CA MHR~SAC~ENTO,CA
MHRHCUSACRAMENTO,CA SMFSSACRAMENTO,CA SMF/SACRAMENTO, CA SMFNSACRAMENTO,CA SMFD/SACRAMENTO,CA CICA/CHICO, CA OVEAlGRASS VALLEY, CA MYVNYUBA CITY, CA RDDNREDDING, CA RDDBIREDDING, CA CICRAICHESTER, CA RODONMOUNT SHASTA, CA RDDAlWEAVERVILLE, CA RDDDAlYREKA, CA RDDD/ALTURAS, CA RNODAlSUSANVllLE, CA RNODBITRUCKEE. CA ITOAfHILO, HI OGGNKAHULUI, HI JHMNKAHULUI, HI KOAAlKAILUA KONA, HI JHMDNLAHAINA, HI LlH/LlHUE, HI HNLAlHONOLULU, HI HIKNHONOLULU, HI HNLRlHONOLULU, HI HNLRC/HONOLULU, HI HIOBIBEAVERTON, OR PDXDNHOOD RIVER, OR BNONTUALATlN, OR MRIDBJASTORIA, OR MRIDAISEASIDE, OR
Page 10

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- - ..- - - - - - -
Listing of Relevant Comats

Comat
972040000 972040001 972170000 972170002 972180000 972180001 972180002
972230000
973020000
973330000
973650000 973670000 974020000 974390000 974590000 974700000
974770000
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 982230000
982260000
982330000
982450000 982500000 983620000

Cornat Description
PDXBlPORTLAND, OR PDXCIPORTLAND. OR MRINPORTLAND, OR MRIBIPORnAND. OR PDXAlPORTLAND. OR LOGAIPORTLAND, OR PDXRlPORTLAND. OR HIOAITJGARD, OR SLENSALEM, OR CVOAlCORVAlLIS. OR CVODBINEWPORT. OR SLEDAILINCOLN CIlY, OR EUGAIEUGENE, OR
EUGD~LORENCE,OR
OTHDAINORTH BEND. OR RBGNROSEBURG, OR EUGAISPRINGFIELD. OR MFRAIMEDFORD, OR LMT/KLt>.MATH FALLS, OR RDMAIBEND, OR RDMRAlBURNS, OR PDTAIPENDLETON,OR RDMRB/JOHN DAY, OR PDTOAIlA GRANDE, OR BVUHQ/BELlEVUE, WA BVUClBEUEVUE, WA BVUHOlBELlEVUE, WA BVUTNBELLEVUE. WA BVUAlBELlEVUE, WA PAENBOTHaL, WA BVUAnSSAQUAH,WA SEAAlKENT, WA BABISEATILE, WA LKEKAlSEATTlE, WA BFID/SEATILE, WA BFIC/SEATILE, WA BFIAlSEATIlE, WA BFISJSEATTLE, WA BFINSEAmE, WA BFIKISEATILE, WA LKEAlSEATILE, WA SEARISEATILE, WA SEARTISEAffiE, WA PAEDAIARLINGTON, WA BllAlBElLINGHAM, WA ODVVAIBURUNGTON,WA
FHR~TSOUND.WA
FHRDAIFRIDAY HARBOR, W CLMNPORT ANGELES, WA
Pagell

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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
995nOOOO
996030000 996110000 996150000 996540000 996640000 996860000 997010000 998010000 998350000 999010000

Comat Description
PWTNPORT ORCHARD, WA TCMAIT'ACOMA. WA OLMA/OLYMPlA, WA OLMRC/ABERDEEN, WA LOGDAlLONGVlEW, WA EATNEAST WENATCHEE, W MIMiIMOSES lAKE, WA OMKAlOMAK, WA YKMAlYAKlMA, WA GEGRBICOLVIlLE, WA LWSDBlPULLMAN, WA GEGNSPOKANE, WA GEGRISPOKANE. WA GEGRJSPOKANE, WA PSCNPASCO, WA ANCHH/ANCHORAGE, AK ANCAIANCHORAGE, AK
ANCH~ANCHORAGE,AK
ANCFT/ANCHORAGE,AK ANCIP/ANCHORAGE, AJ< ANCRT/ANCHORAGE, AK BMXlEAGLE RIVER, AK HOMAlHOMER, AI< ENAAIKENAI, AK ADQAlKOOIAK, AK WNAAlWASILlA, AK SWOA/SSNARD, AK VDZNVAlDEZ, AK FAINFAIRBANKS, AK JNUAfJUNEAU, AK JNUDCISITKA, AK JNUDCIKETCHIKAN. AK

Source: Data provided by FedEx Express.

Page 12

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Appendix B

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The People Manual 25 June 2006

4-15 Career Opportunity 187

Policy Scope

4-15 Career Opportunity
(Last Revised 24 July 2005)
FedEx Express provides career development opportunities to its employees by systematically informing them about position openings 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 POLlCY~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.

Affirmative 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 Department. All employee groups working under a member of management who reports directly to

Purposes of this Policy) a Corporate officer. This definition applies unless the senior division head, with the approval of the

matrix Human Resources managing director, defines the term differently.

Lateral Transfers. Movementfrom 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 available, notification is sent to the officers and managing directors of the Corporation. These officers and managing directors normally have 10 calendar days to submit candidate recommendations in writing 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 Career 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 Manua/ for additional information.

Posting Requirements

All replacemer:lts, additions, and new permanent positions must be posted on the Career Opportunities Posting unless local posting is avthorized 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.

PeopieManual06- 207

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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 department, 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.

Local Department/Station 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 repost or recruit internally/externally. Position is filled in accordance with 1-6 Leave of Absence (Medical)-Exempt/Nonexempt Salaried or 1-8 Leave of Absence (Medicall--Merit Hourly in support of the Human Capital Management Program (HCMP). The chief exerutive 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:
Actual 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 III, Treasury Agent IV). A divisional staffing agreement has been approved to upgrade the status of part-time employees to full-time in the same jol;> 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.

PeopleManual06- 208

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Appendix C

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rn:....:. ..u.r-~'.-.:--'.
,.,' Online
Library
Slilfth
L~", 'Peih'HSW~ 1\.,"1__.1\ H~~ t&ft~ '~·.lliW.
...It~P~I~Rm
'Ulli~ ~
'IMn
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 FedEx 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 ,Hno recording" rule. Failure to adhere may be considered insubordination as outlined below.
Workplace Vjolence
ViQlent or threatening behavior is not tolerated in the workplace. All employees are responsible for advising management, the FedEx Express Security Oepartmen~ Human Resources, or People Help of any actual or potentially
serious or violent situations as stated in the Wor~pl~Ul1olence guideline of sso S~j;.Y.f.i.tY.

Misconduct

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.. --0- - _ ........
FedEx Express requires a high degree of personal Integrity and responsibility of its employees. Violations of Compa~y 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 ali-inclusive.
• Conviction of, or a plea of -no contesf 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 10 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 functionslCompany 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

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• 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 Information 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 andlor 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 l.Q:-6.5 S.QI~l~!Jon_\l_Dg
Pi.$t~'jb.trtjQ!l
• 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 any violation of the Acceptable Conduct policy could potentially result in termination of employment. an employee normally will be dismissed upon completion of an investigation confinning violations related to
. ··'r--r--·

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• 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 fireanns or other dangerous weapons on Company property. as specified in 8-10 EireannslWeapons.
1'1. Tennination 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 folW3rded 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
<.J termination for drugs or alcohol should proceed
directly to Step 2.
• Violation of the Confidentialibf: guideline for the survey questionnaire as specified in 5-70 Survey/Feedback/Action (SEA) Program.
InvestigativelDisciplinary 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 1.0. 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 Disciplin;uyJ~m;pensiQ.!l section below and in the Wa.rrdng L'-tt~.rl R~current PaJw.rl1~ guideline.
r& The Matrix HR Manager and Legal must be V 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 ~nvestigative 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

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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 should enter the information into the Online Documented Compliment/Counseling (Olec) 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 managementJa
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
OleC screen even if no separate written memo or synopsis of the
discussion was prepared by the manager.
r&. Documented counselings are ineligible for the <...J GFTP process because they are not disciplinary
in nature. (See S.:,5.(;.Q.aJ:'~I)~~~t:! F.~ir..Tr:e~tment
Er.oce~urQ.te.E.QJ:om..R.laint erQ~'-§.§.)
A documented counselingfOLCC entry Is not disciplinary in nature. but It may be considered as a factor when determining whether discipline (i.e. warning lelterj 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.
Waming Letterl Recurrent Patterns
.rI. 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.Q~J'!J)1'-.!!tiljp.n guideline and Figure 1, Sample Warning Letter. Warning letters serve as a notification of behavioral deficiency, and are active in PRISM and prohibit JCAlJCATS 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 spends on a leave of absence.) Disciplinary Suspensions may be given when appropriate and must be outlined in a warning letter. See ImLQ..~il~j.Kip.1ina.JY­ SU~~Jl~lQ..l)..$. 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 2-5 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.

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r&. When an emproyee receives a second deficiency V notification within 12 months (e.g., a waming 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.
rI. A Decision Day is only initiated when the second V notification qualifies as a perfonnance reminder.
(See 2-SO Perfonnance 1mQr.Q.'l@~nt.)
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 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.
The receipt of three notifications of deficiency within a 12-month period normally results in termination. However, an employee's entire employment history should be reviewed. Based on the severity of the occurrence an employee may be terminated with less than three notifications of deficiency within a 12-month period. Management should consider the relative nature of all infractions for disciplinary purposes.
TermInation Option exercised
Failure to correct behavioral deficiencies will result in termination by the Company. Management is responsible for reviewing an employee's disciplinary record and exercising judgment in determining appropriate action.
Discharge Approval Two levels of management and a matrix Human Resources staff member must approve all terminations based on misconduct when the individual holds a managing director or below position. For positions above managing director, the matrix Human Resources managing director should be consulted.
Termination Letters
REFER TO 4-90 Termination, Termination Letter
guideline.
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 permanently in a department/station file. An information copy must be sent to the matrix Human Resources manager.
Documentation
Management should completely document all actions taken by management related to misconduct. All notifications of deficiency (I.e., warning letters and diSCiplinary suspension documents) should contain Information such as
• date of infraction
• facts supporting the suspension, warning letter, reminder, andfor

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- - ....

termination

• policy violated

• the warning letter must contain a reference to the employee's privilege to pursue the procedure in 5-5 G-'IJl{llo.t~~ Fair.Ir~a~_nt
E!r~J.l~/eEOC.ompj1l1Dt_PrQe..es.s
Verification/Retention of Disciplinary Notifications
An employee's signature confirms receipt of any disciplinary letter. When an
employee 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

.

• fOlWard a copy tathe 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 Driving 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 jobrelatedness 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 police 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

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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 DeterminationIProcedure
The crlme's classification (Le., 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-case basis. Ta.b.li.1. outlines 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
clearly 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 charges against the employee or the acquisition of additional information that will allow management to make a final decision. (See I~_bl~L1..)
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 18 months of the original charge, the status of the criminal proceeding will be reviewed by the manager, Human 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 Indlcted 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 indictmen~ or charge, suspends employee with pay so an investigation can be conducted to determine the job-relatedness of the conduct. (See InY_Q.$tig~_tlv_~Q!,"!;.iP.lin!m'...s~~ns19.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 jt is not
known if the employee engaged in the conduc~ suspends

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Management

employee without pay pending resolution or more Information.
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.

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 an<! 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 andlor his matrix Human Resources staff, and/or use the procedure in 5-5 G.!!.i!~~meed....Eair n.,.atm~mt
em(:..!tdw.:ele:~g.lIllllilll1tfrQCess.
Related Policies
• 1-5 Medical Absence Pay-Exempt and Nonexempt Salaried and Step

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Progression • 1-6 Leave of Absence (Medicall=£xemptiNonexempt Salaried and
Step Progression • 1-7 Medical Absence Pay-Merit Hourly • 1~ Leave of Absence (MedicalHerit Hourly • 1-20 Attendance
• 145 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 Improveme.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 Flrearms/Weapons • 8-30 Identification of Personnei
• 8-90 Vehicle Accidents/Occurrences
• 1P-$5 SolicitatIon and Distributio.u Related Publication
• The Profit Manual

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• The Safety Manual • The Information Security Standards

WARNING: This site contains Information and procedures applicable only to employees of Federal
Express Corporation (FedEx ElCPress). Employees of
other affiliated FedEx companies should refer to the sites applicable to their respective affiliated company.

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A product of HR Measurement and Support. Your feedback is welcOme.

QQJMi.Qb1 ~ 1981-2007. Federal Express Corporation unpublished. All rights reserved.
ISO 9001 control/ed document. Contents subject to change.
Printed 8I1d other stalic representatiOns of this data are classified
"for reference only.•

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Appendix D

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The People Manual (USA)

Chapters

.;.'---.

'-2-50 Performance Improvemenr-4

(Last Revised 01 April 2007) .

Policy

FedEx 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:formance 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..!ld"Y.(!.1 for additional
information regarding infractions
considered to be misconduct and
alternative management actions.

Mutual Responsibility

Management Responsibilities Management is responsible for

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counseling, a witness (another member of managemen~ 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.
i&. Documented counsellings are ineligible for the GFTP <...J process because they are not disciplinary in
nature. (See 5-fj Guaranteed Fair Treatment
er.Q~e.d"yfJ#LI;-E.Q.C.Q.mp-.'~.!nt r:'.ro.~$..)
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., tools; equipmen~ scheduling, presaibed methods).
• Consult with the employee to determine if any recent 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 wor!<group
• 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.
r&. Although it is not required, managers are urged to V consult with their matrix Human Resources staff
before taking action, particularly in unusual

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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 OLeC screen and have the employee access the OLCCACK screen to enter a
verification. See PRI.SM .Entri~$. .and Ve.dficaliQ.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 counseling/OLeC 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

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..."-- -.--...~- ,-----". - - - - --_.
Management is expected to review thoroughly the circumstances surrounding any incident to detennine 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 ptan is required, management must ensure that the action plan is developed and documented jointly by the manager and employee. See Figure 2. The action plan should address all actions related to an
employee's performance problems. Once 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 complaint process as documented in ~~(i.Gu.a.mnt~~d fair
Ir~;Atm.QJlt. Pro.~.d.u.re.I.e.e..O .c..Qmp,!~jo.tP.r.QC~$$.
• see Figure 2 for a sample Performance Reminder with Action Plan
i I . All disciplinary actions should be initiated within V seven calendar days ofthe completion otthe,
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 Information 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)lJCATS submissions tor 6 months from the date of Issue.
Impact on Job Change Applications
Active reminders do not automatically prohibit an employee from submitting a

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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 FadEx 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!r.o..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 Performance Review
If an employee has active formal discipline (warning letter or performance reminder) on file at the time of his performance review completion, this disclpl1ne 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-satlsfactory rating in any category may serve as the basis for a performance reminder and may require an agreed-upon action plan.
rI. When a performance review qualifies as a reminder, <...J 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.~..o
••~~ 11!1.

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Performance fmPLQvemeni 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 e~ployee's lack of improvement since the previous reminder and explaining the purpose and consequences of the decision day.
ra: Decision days may be initiated after two deficiency
<.J notifications, but only when the last notification
qualified as a performance reminder.

Table 1
Decision Daiy Conditions

Type of DefiCiency Type of Deficiency

Notification

Notification

Performance Reminder Performance Reminder

Warning Letter

Performance Reminder

Performance Reminder Warning Letter

Warning 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 the 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 the Company must present a written personal performance agre.ement 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

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!'&. 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 Calendar days and should be completed as soon as possible. The employee normally should be informed of the decision within seven calendar days of the completion 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.

rI. 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.
Termination Option Exercised

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Failure to correct performance problems will result in either tenninatlon 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 problems. 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 Human 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 ~.~5..G_y.a~ntee.d Fair r~atment Pr:ocedure/EEO
C.9rop.lilimJ~.r.Q~tel$...
Related Policies
• 1-5 Medical Absence Pay==-Exempt and Nonexempt Salaried and Step Progression
• 1-20 Attenda nee
,
"
I

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• 1-45 Leave of Absence (Family) • 1-50 Leave of Absence (Military) • 1-55 Leave of Absence (Pe[§QnaJ)
• 2-10 Alcohol and Drug-Free Workplace • 2·55 performance Review (Individual progress Discussion)
• 4-48 Qriving Qualifications
• 4-90 Termination
• 8-85 Unsafe ActslWorker Injuries • 8-90 Vehicle Accidents/Occurrences

WARNING: This site contains infonnalion and
procedures applicabl& only 10 employees of Federal Express Corporation (FedEx Express). Employees of
other affiliated FedEx companies should refer to the
sites applicable to their respective affilfated company.

.s~~J:.C!J Online Library Feq~ Hom~ Revision Highlights Contents Pub Info
IQQI Prevl~

Search Thfil People Manual (USA):

§]

A product of HR Measurement and Support Your feedback is welcome.

CD.JwjgIl1@1981-2007, Federal Express Corporation
unpublished. AU rights reserved.
ISO 9001 c.ontrolled document. Contents subject to change.
Printed and other static representations ofthis data ate classilied "for reference only."

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772269-2 FilFeidle0d40/40/91/32/0077 PaPgaeg4e1 4o1f 5o4f 54
Appendix E

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{ .

FedEx Express (USA)

Personnel Policy and Procedure Manual

June 2006

Publication Number 5524

Before the next complete revision of this publication, information may be updated through bulletins, e-mail,

or other FedEx Express media. 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 howto 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

PeopleManual06- 5

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The People Manual (USA)
Chapters
. . 5-5 Guaranteed Fair Treatment Procedure/EEO Complaint Process"
(Last Revised 01 April 2007)
Policy
FedEx 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.

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.r&. W1len an employee adds an allegation of V discrimination or sexual harassment after entering
the GFTP process, the GFTP is deferred until allegations of employment discrimination are resolved. The steps outlined in Iibl~ 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 I'-b.~-.-1. Step 2 is the final step for discipline resulting from an EEO investigation.
!'&. Employees terminated for drug, alcohol, falsification
<..J of the employment application 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.
r&. Employees are permitted to utilize the GFTP process V for resolution regarding work assignments that are
presumed to be unsafe or where no training has

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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 FedEX 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.bJ.!3 '.)
That division's chain of command should be followed throughout the process.
Benefits Related GFTP/EEO Process
When a GFT Is flied 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 I'.bJ~.1J The steps in the GFTP process for non-discrimination issues are:

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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

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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 sale discretion of the senior vice presidentlvice 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 presidentMce president or the Appeals Board•
.r&. Discrimination and sexual harassment allegations V 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.

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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 rorwarded 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 tl1e 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 performed by specific
individuals. See T.iJ.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 andlor 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.

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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 Communlcationsl Documents
All internal documents, including E-mails, investigative notes and materials generated in the course of the GFTPIEEO process, including without limitation, internal EEO and harassment investigations are confidential and subject to various legal privileges against disclosure. Circulation, distribution, or discussion of this information is strictly limited to those who have a need to know 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. Attomeys or other such representatives are directed to contact the Legal Department No third party is permitted to participate in any manner in the GFTPfEEO 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

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• 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 Ilpplicable only to employees of Federal Express CorporatiOn (FedEx Express). Employees of
other affiliated FedEx companieS should refer to the sites applicable to their respec6ve affifiated company.

.sealQtt Online Library . Ee..g_!;~ ..!::!.Qm~.
Revision Highlights Contents Pub Info
@ I prev I ~.~~

Search The People Manual (USA):

~

A product of HR Measurement and Support. Your feedback is welcome.

~ c 1981-2007, Federal Express Corporation
unpubrlSbed. All rights reserved.
ISO 9001 controlled document. Contents subject to change. Printed and other static representations ofthis dsts are claSSified
"for reference only. N

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772269-2 FilFeidle0d40/40/91/32/0077 PaPgaeg5e1 5o1f 5o4f 54
Appendix F

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Appendix F - Class Members Receiving a Service Award
Sheila Akins Virgil Banks Yolanda Cane1a Bonta P. Clarke Eric Foreman Maurice Griffin Janet Haynes Eric 1. Hill Brett Hoiland Ingrid James Zeno Latin Venturi McCray Sr Mitchell McCoy Rose Moncrief Antonio Norris Rosalinda Olmos Beverly Patterson Mimi Steel

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Appendix G
I
i .
...•.
j~ :.'

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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. Dennody - $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 W.aukeen 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

.

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Exhibit 2

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1

THIS IS A NOTICE OF A PROPOSED CLASS ACTION SETTLEMENT

FROM THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3 TO: (1) ALL AFRICAN AMERICANS AND LATINOS WHO WERE EMPLOYED AT FEDEX

EXPRESS IN THE WESTERN REGION OF THE AGFS AND DGO DIVISIONS IN

4

CERTAIN HOURLY POSITIONS, AND (2) ALL AFRICAN AMERICANS WHO WERE

EMPLOYED AT FEDEX EXPRESS IN THE WESTERN REGION OF THE AGFS AND

5

DGO DIVISIONS AS AN OPERATIONS MANAGER AT ANY TIME BETWEEN

OCTOBER 17, 1999 AND [PRELIMINARY APPROVAL DATE]

6

7

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

DERRICK SATCHELL, KALINI BOYKIN, 12 VALERIE BROWN, RICK GONZALES,

Case No.: C03-2659 SI; C 03-2878 SI

CYNTHIA GUERRERO, RACHEL HUTCHINS, CLASS ACTION 13 TYRONE MERRIT, KELVIN SMITH, SR., and

KEN STEVENSON, on behalf of themselves and NOTICE OF CLASS ACTION

14 all others similarly situated,

SETTLEMENT

15

Plaintiffs,

16 vs.

17 FEDERAL EXPRESS CORPORATION, a
Delaware Corporation, 18
Defendant. 19

20

21

22

23

24

25

26

27

28

NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1

READ THIS NOTICE CAREFULLY. IT MAY AFFECT YOUR LEGAL RIGHTS.

2

This Notice is being sent to you, as ordered by the United States District Court for the Northern

3 District of California, to advise you of the preliminary approval of the settlement of an employment

4 discrimination class action against FedEx Express Corporation ("FedEx Express"). You have received

5 this Notice because FedEx Express's records reflect that you are African American or Latino and were

6 employed by FedEx Express in its Western Region as an hourly employee or an Operations Manager

7 between October 17, 1999 and [preliminary approval date], and therefore may be a class member in the

8 lawsuit. The purpose of this Notice is to provide you with a summary of the proposed settlement and

9 Consent Decree, and to advise you of your rights with respect to the proposed settlement.

10

Important Deadlines

11

• To participate in the monetary relief portion of the settlement, and receive any

12

money to which you may be entitled, you must mail a Claim Form to the Claims

13

Administrator postmarked no later than [claims deadline]. A Claim Form and

14

return envelope are included in this Notice packet.

15

• If you want to exclude yourself from the Settlement (that is, not receive any

16

monetary relief from the settlement, and not be bound by the judgment and

17

release), you must mail an opt-out statement to the Claims Administrator post-

18

marked by [opt out deadline].

19

• If you want to object to the settlement, or some part of the settlement, you must

20

mail your written objection to the Claims Administrator post-marked by

21 22 A.

[objection deadline]. Summary of Litigation

23

The Plaintiffs (i.e., the people who filed this lawsuit) claimed that FedEx Express discriminated

24 against African Americans and Latinos employed in certain hourly positions in three main respects:

25 (1) by paying African American and Latino class members less than white employees of similar

26 experience and qualifications, (2) by disproportionately taking disciplinary action against African 27

28
2
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1 American and Latino class members, andlor (3) by promoting white employees rather than greater or

2 equally qualified African American and Latino class members, specifically with respect to promotions

3 in the Western Region of the AGFS and DGO Divisions from any class member casual hourly position

4 to any permanent hourly position, from any class member permanent hourly position to any other

5 permanent hourly position, from any Latino class member hourly position to operations manager

6 positions, and from class member hourly positions to customer representative positions (but only until

7 June 1,2006). Additionally, Plaintiffs allege that requiring employees to pass the Basic Skills Test

8 ("BST") to work as a Courier, Ramp Transport Driver, Service Agent, or Customer Representative

9 also discriminated against African American and Latino class members. In addition, Plaintiffs claimed

10 that FedEx Express discriminated against African American Operations Managers by (1) paying them

11 less than white employees of similar experience and qualifications, andlor by (2) disproportionately

12 . taking disciplinary action against African American class members.

13 B. Class Membership

14

If you are an African American or Latino, who worked at FedEx Express as a Freight Handler,

15 Material Handler, Checker-Sorter, Customer Service Agent, Courier, Swing Driver, Ramp Transport

16 Driver, Ramp Area Driver, Shuttle Driver, Dangerous Goods Agent, Information Agent, Operations

17 Agent, Ramp Agent, Service Assurance Agent, Truck Control Agent, Trace Representative, Input

18 Auditor, Team Leader, or Dispatcher in the Western Region of the AGFS and DGO Divisions at any

19 time between October 17, 1999 and [the Preliminary Approval Date], then you are a member of the

20 Hourly Employee Class, for purposes of monetary relief. If you are an African American who worked

21 at FedEx Express as an Operations Manager in the Western Region of the AGFS and DGO Divisions

22 at any time between October 17, 1999 and [the Preliminary Approval Date], then you are a member of

23 the, Operations Manager Class, for the purposes of monetary relief.

24

It is possible that you are a member of both classes (for example, if you held both an hourly

25 position and an Operations Manager position in the Western Region ofthe AGFS and DGO Divisions

26 at some time between qctober 17, 1999 and [the Preliminary Approval DateD. (Together, these two 27

28
3
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1 classes are referred to in this Notice as "the Class" and members of either class are referred to as

2 "Class members").

3 C.

Litigation Background

4

In December 2002, Derrick Satchell and several others filed a class action lawsuit in Federal
5

Court in Northern California, alleging that FedEx Express discriminated against African Americans 6

and Latinos. They alleged that FedEx Express discriminated against its African American and Latino 7

employees with respect to promotions, pay, and discipline. Plaintiffs also alleged that FedEx 8

Express's Basic Skills Test was biased against African Americans and Latinos. Over the course of the 9

next two years, Plaintiffs obtained and analyzed hundreds ofthousands of pages of FedEx Express 10

documents, and took deposition testimony from key FedEx Express managers and former managers. 11

Both sides then produced reports from experts who reached different conclusions about whether FedEx 12

Express's practices discriminatorily injured African Americans and Latinos. After a hearing, the Court 13

found that the case could proceed as a class action lawsuit-that is, that Mr. Satchell and the other 14

named plaintiffs could represent all African American and Latino FedEx Express employees claiming 15

that FedEx Express had discriminated against them on the basis of race or national origin with respect 16

to promotions, pay, and discipline. You probably received Notice in February 2006 that the Court had 17

certified the class. 18

After the Court certified the class, the parties began preparing for trial. Trial was originally set 19

for February 2007, and was later continued to May 2007. In the course of preparing for trial, Plaintiffs 20

obtained and reviewed many more documents, took many more depositions of key FedEx Express 21

witnesses, and submitted additional reports from experts. The parties exchanged trial exhibits and 22

proposed verdict forms, and filed numerous motions before the Court as both sides geared up for trial. 23

Shortly before the trial was scheduled to begin, in December 2006, the parties began a mediation, or 24

settlement, process. Numerous in-person meetings took place between December 2006 and March 25

2007. Mediation enabled the parties to better understand each other's positions and, ultimately, to 26

27

28
4
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1 reach an agreement to settle and resolve the original Satchell action, as well as the related Caldwell v.

2 FedEx Express Corporation case.

3

After these discussions, the Plaintiffs and FedEx Express agreed to settle the litigation on the

4 terms described below. Class Counsel have concluded that the terms of the settlement are fair,

5 reasonable, adequate, and in the best interests of the Class. In reaching this conclusion, Class Counsel

6 have analyzed the benefits of the settlement and the risk of an unfavorable outcome (i.e. losing), as

7 well as the expense and length of continued proceedings necessary to prosecute this action through a

8 trial and possible appeals. FedEx Express does not admit any wrongdoing or liability by entering into

9 this settlement, and has agreed to these settlement terms because it wishes to avoid further costly,

10 disruptive, and time-consuming litigation, and desires to obtain complete and final settlement of the

11 claims of the Plaintiffs and Class members.

12 D. Injunctive Relief--Summary of Employment Practices Affected by the Proposed Settlement with FedEx Express
13 FedEx Express will agree to be bound by a Consent Decree for four years that will obligate it to
14 implement a number of steps that affect the way it evaluates, pays, disciplines, and promotes its hourly
15 employees and Operations Managers. The overall objective ofthis Decree, which is a type of court
16 order, is to ensure equal employment opportunities for African Americans and Latinos who work for
17 FedEx Express in the Western Region. In order to do so, FedEx Express has agreed to take many
18 steps, including all of the following:
19 Promotions To Hourly Positions
20
(1) FedEx Express will discontinue use of the Basic Skills Test ("BST") as a requirement for 21
awarding Courier, Ramp Transport Driver, or Service Agent positions. 22
(2) FedEx Express has eliminated the "casual" category of employees. 23
(3) FedEx Express will post all open positions on JCATS, and will fill job vacancies for 24
hourly positions only through the JCATS system, subject to the limited policy exceptions 25
noted in the Decree.
26
(4) FedEx Express will eliminate the step of manager "approval" to apply for a promotion 27
through JCATS; instead, managers will only verify that employees meet all requirements
28

5
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1

for the promotion.

2

Promotions To Management

3

(5) FedEx Express will provide information on its intranet and on paper that informs

4

employees about the ASPIRE system for entry into management positions, will allow all

5

eligible employees to enroll in available ASPIRE to Management classes, and will require

6

only that managers verify employees' eligibility for ASPIRE to Management, rather than

7

"approve" employees' requests for management classes.

8

Performance Evaluations and Compensation

9

(6) FedEx Express will provide training and specific guidelines for managers to use in the

10

performance evaluation process, will eliminate manager discretion to make "exceptions"

11

to performance review scores, except in clearly prescribed circumstances, and will

12

monitor the subjective criteria used in the performance review process to make sure that

13

subjective criteria are not used to give African Americans or Latinos disproportionately

14

low performance review scores.

15

Discipline

16

(7) FedEx Express will revise its discipline policy to ensure evenhanded enforcement of

17

disciplinary rules, including enforcing its requirement that the factual background and

18

reason for all discipline be documented in writing.

19

Guaranteed Fair Treatment Policy

20

(8) FedEx Express will revise its Guaranteed Fair Treat~ent ("GFT") policy to encourage,

21

rather than require, employees to engage in "open and frank" discussion with the

22

decision-maker prior to initiating the GFT process, and will provide the employee with

23

access to the Management Rationale for the challenged action and allow the employee

24

time to respond.

25

Accountability

26

(9) Managers will be evaluated on whether they follow FedEx Express's revised policies with

27

respect to promotions, pay, and discipline.

28

(10) FedEx Express will subject to discipline, up to and including termination, those managers

6
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1

who fill positions without following FedEx Express's official procedures (such as failing

2

to choose the person with the highest CEV points for a job).

3

Monitoring and Enforcement

4

(11) FedEx Express will establish an internal Monit~ring Panel to monitor and enforce these

5

policies and practices and to ensure compliance with all terms of the Consent Decree.

6

The Monitoring Panel will review reports of complaints of discrimination by FedEx

7

Express employees, and will also receive and review other reports designed to insure that

8

FedEx Express is following the new policies established through this Consent Decree.

9

(12) Throughout the term of the Consent Decree (4 years), FedEx Express will provide regular

10

progress reports to Counsel for the Plaintiffs. These reports will describe FedEx

11

Express's progress in implementing the Decree, and include information about complaints

12

of discrimination by African American and Latino employees, discipline imposed, and

13

promotions granted. If Counsel for Plaintiffs believe that FedEx Express is disobeying its

14

obligations under the Decree, Counsel may bring the matter to the attention of the Court

15

or a Special Master.

16

(13) A Court-appointed Special Master (an experienced lawyer who previously served as the

17

parties' Mediator) will be authorized to resolve any disputes under the Consent Decree.

18

No Retaliation

19

(14) FedEx Express will not retaliate in any way against the employees (or former employees)

20

who sued it.

21

If, after the Consent Decree becomes effective, a Class member has reason to believe that

22 FedEx Express is not fully complying with one ofthe terms of the Consent Decree, that Class Member

23 can contact Class Counsel (See Section N) to provide the basis for that belief.

24 E. Money Being Paid by FedEx Express

25

In addition to the steps described above, FedEx Express has agreed to pay $38.5 million to

26 members of the Class who make a claim for past discrimination. From this $38.5 million, the nine

27 Class Representatives will each receive an award of $30,000 (for a total of $270,000), to compensate 28

7
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 S1; C 03-2878 S1

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1 them for their time involved in filing a lawsuit or charge against FedEx Express, and 18 individuals

2 who submitted declarations in support of Plaintiffs' claims, all but one of whom were deposed, will

3 each receive $5,000 (for a total of $90,000), designed to compensate them for the time involved in the

4 case and in completing their depositions andlor declarations. Costs of providing notice to the class will

5 also be paid from the $38.5 million, and the fund will be reduced by a pro rata amount (returned to

6 FedEx Express) based on the number of Settlement Class Members who opt out of the case. The

7 remainder of the $38.5 million will be used to pay class members who file timely claims.

8 9 F.

Attorneys Fees and Reimbursement to Class Counsel of Out of Pocket Litigation Costs

10

In addition to the injunctive relief described in Section D above and to the $38.5 million

11 described in Section E above, FedEx Express has agreed to pay Plaintiffs' counsel approximately

12 $2.575 million to reimburse them for out-of-pocket expenses they have advanced for the benefit of the

13 class, and approximately $12,425,000.00 in attorneys fees for legal services through the Final

14 Approval process. This means that Class members will not have to pay anything to the lawyers.

15 Plainiffs' counsel will file their fee application with the Court by June 22, 2007.

16 G.

17

If you are a Class member, then you may be eligible to receive money from this settlement.

18 You will only receive money if you submit a written claim form to the Claims Administrator,

19 signed under oath, and postmarked no later than [claim form deadline]. If you do not submit a

20 claim form postmarked by [claim form deadline], then you will not receive any money from the

21 settlement. However, even if you do not submit a claim form, you will still be bound by the settlement

22 and release, unless you opt out, or exclude yourself, from the settlement.

23

A Claim Form and return envelope is included in this Notice Packet. You should review the

24 information on the Claim Form carefully, and correct any information that is incorrect. Make sure to

25 review and answer the questions in the Claims of Discrimination section. Finally, sign and date the

26 Claim Form, and return it in the return envelope postmarked no later than [claim form deadline].

27

28

8
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1

Those claim forms that are submitted on time will be evaluated by a Claims Administrator, and

2 payments will be made to class members on the basis of (1) length of time working for FedEx Express

3 in a class position during the class period; (2) casual, part-time, or full time status during this period;

4 and (3) whether the class member failed the BST.

5 H. Release Of Claims

6

If the Court grants final approval of the Settlement, then all Class Members who do not opt out,

7 see Section I below, will release FedEx Express for all claims certified by the Court in the lawsuit.

8 When claims are "released," that means that a person covered by the release cannot sue FedEx Express
9 for any of the claims that are covered by the release. Unless you opt out of the lawsuit, you will be
10
covered by the release, even if you do not submit a claim form for money damages. 11

12

The exact terms of the Release are:

13

Upon Final Approval of the Consent Decree, all Settlement Class Members who do not timely

opt out will release all race and national origin discrimination claims against FedEx Express under

14 federal and state laws that were certified by the Court on September 27,2005, for the liability period of
October 17, 1999 through the Preliminary Approval Date. 15

The Court certified on September 27,2005, claims of the Minority Employee Settlement Class 16 concerning race or national origin discrimination in promotions, compensation, and discipline. The

17 Minority Employee Settlement Class will release claims, arising during the Class Period, under any federal or state legal theory, for race and national origin discrimination in compensation, promotions

18 identified in plaintiffs' statement regarding promotion claims filed on November 30, 2006, i.e., (1)
promotions in the Western Region of the AGFS and DGO Divisions from any casual Class Member 19 Hourly Position to any permanent hourly position, (2) promotions from any permanent Class Member

20

Hourly Position to any other permanent hourly position, (3) promotions of Latinos from a Class Member Hourly Position to operations manager positions, (4) promotion from Class Member Hourly

21 Positions to customer representative positions from the beginning of the class period until June 1, 2006, and in the allegedly discriminatory issuance of performance reminders or warning letters, to the

22 extent that the issuance of such discipline had an impact on an active employee's compensation or

ability to promote. 23

24

The Court certified on September 27,2005, claims of the African-American Operations Manager Settlement Class of race and national origin discrimination claims concerning compensation

25 and discipline. The African-American Operations Manager Settlement Class will release claims, arising during the Class Period, under any federal or state legal theory, for race and national origin

26 discrimination in compensation and the allegedly discriminatory issuance of performance reminders or

warning letters to the extent that the issuance of such discipline had an impact on an active employee's 27 compensation or ability to promote.

28

9
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 S1; C 03-2878 S1

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1 I. Can I "Opt-out" or Ask to Be Excluded, From The Monetary Relief Class?

2

With regard to injunctive relief and the steps FedEx Express must take as described in Section

3 D below, you will remain a member of the Class. However, with respect to the claims for monetary

4 damages, you have the option to opt out, or exclude yourself, from the settlement. If you opt-out of the

5 Class, then you will not be bound by the release in this lawsuit, and will preserve the right to file your

6 own lawsuit against FedEx Express, but you will not be able to make a claim for money as a part of

7 this class-action lawsuit. If you start your own lawsuit against FedEx Express after you exclude

8 yourself, you'll have to represent yourself or hire and pay your own lawyer for that lawsuit, and you'll

9 have to prove your claims. If you do exclude yourself so you can start or continue a lawsuit against

10 FedEx Express, you should talk to your own lawyer soon, because your claims may be subject to a

11 time deadline (statute oflimitations). Note that if you exclude yourself from this lawsuit, and you are

12 currently employed by FedEx Express, any changes made to FedEx Express's policies about the

.13 treatment of African Americans and Latinos would still apply to you. However, if you exclude

14 yourself from this settlement, then you won't get any money from the settlement of this class action

15 lawsuit. On the other hand, if you remain in the class, you may be eligible to receive money, but only

16 if you submit a claim form by [claim form deadline]. If you do nothing, then you will remain a part of

17 the class. However, even as a Class member, you will not receive money unless you submit a claim

18 form postmarked by [claim form deadline]

19 J. How Do I Ask the Court to Exclude Me from the Class?

20

To ask to be excluded, you must send a request for exclusion that contains the following

21 language:

22

"I understand that I am requesting to be excluded from the class monetary settlement

23

and that I will receive no money from the settlement fund created under the Consent

24

Decree entered into by FedEx Express. I understand that if I am excluded from the

class monetary settlement, I may bring a separate legal action seeking damages, but

25

may 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

26

seek 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." 27

28 You must mail your request for exclusion postmarked no later than __ to:

10
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1
K.
2

The Settlement Process and Final Fairness Hearing.

Every class action settlement must be approved by the court that presided over the class-action 3

lawsuit. Thus far, Judge Susan Illston has only decided that the proposed settlement may be fair and, 4

therefore, justifies the distribution of this Notice. In order to decide whether to give final approval to
5

the proposed settlement, Judge Illston will consider related papers and comments submitted by the 6

parties or others and hold a hearing in open court. A Final Fairness Hearing will be held on __ at 7

__, in the Courtroom of Judge Susan Illston, U.S. District Court, Northern District of California, 450 8
Golden Gate Avenue, Courtroom 10, 19th Floor, San Francisco, CA 94102. You may, but are not 9

required to, attend this hearing. You may also enter an appearance in the case through your own 10

attorney, if you so desire. 11
L. Objecting To The Settlement
12

You may submit any objections to the proposed settlement in writing. For any such written 13

objections to be considered, they must be mailed postmarked by _ _. 14

Satchell v. FedEx Express Claims Administrator

15

XXXXX

XXXX, XX XXXXX
16

Please do not send any comments directly to the Court or attempt to reach Judge Illston in person. You 17

may, however, review a copy of the Consent Decree at the Clerk's Office at the Federal Courthouse at 18

450 Golden Gate Avenue, San Francisco, CA 94102 or at www.FedExExpressclaims.com. Any 19

person who has filed a written objection to the Settlement may speak at the Final Fairness Hearing. If 20

you seek to present any evidence or appear through a lawyer at the final fairness hearing, you must 21

22 state your intention to do so in writing (sent to the post office box identified above) on or before_

Additionally, any attorney who seeks to represent you at the Final Fairness Hearing must file a Notice 23

of Appearance with the Court no later than _ _. 24

M. If the Decree is Not Approved 25

26

If the Consent Decree is not approved by the Court, the conditional settlement will be voided,

27 no money will be paid, and the case will proceed to trial. However, if that happens, there is no

28 assurance: (a) that any decision at trial would be in favor of class members; (b) that a favorable trial

11
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1 decision, if any, would be as favorable to the Class members as this settlement; or (c) that any such

2 favorable trial decision would be upheld if any appeal was filed.

3 N. Class Counsel

4

The Court has approved and appointed a number of firms to represent all members ofthe Class.

5 Class Counsel can be reached at the following telephone number: 1-888-xxx-xxx. Class Counsel are:

6 James M. Finberg Eve H. Cervantez
7 Claire Prestel 8 ALTSHULER BERZON LLP
177 Post Street, Suite 300 9 San Francisco, CA 94108

10 Barry Goldstein

Of Counsel To 11 GOLDSTEIN, DEMCHAK, BALLER, BORGEN

12

&DARDARIAN

300 Lakeside Drive, Suite 1000

13 Oakland, CA 94612

14 John L. Burris (SBN 69888) LAW OFFICES OF JOHN L. BURRIS
15 7677 Oakport Street, Suite 1120 16 Oakland, CA 94612

17 Michael S. Davis LAW OFFICES OF MICHAEL S. DAVIS
18- 345 Hill Street 19 San Francisco, CA
20 Waukeen Q. McCoy LAW OFFICES OF WAUKEEN Q. McCOY
21 703 Market Street, Suite 1407 San Francisco, CA 94103
22

23 Kay McKenzie Parker 24 LAW OFFICES OF KAY McKENZIE PARKER
225 Bush Street, 16th Floor 25 San Francisco, CA 94104

26

27

28

12
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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1 Kelly M. Dermody

Daniel E. Barenbaum
2 LIEFF, CABRASER, HEIMANN &

3

BERNSTEIN, LLP 275 Battery Street, 30th Floor

4 San Francisco, CA 94111-3339

5

Todd M. Schneider 6 Guy B. Wallace

7

SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000

8 San Francisco, CA 94104

9

10

11

O. Further Information About the Settlement 12

If you have any questions concerning this settlement, or your options described in this Notice, 13

you may contact free of charge the Claims Administrator by (a) visiting http://www.FedEx 14

Expressclaims.com, (b) calling toll-free (###) ###-####, or (c) writing Satchell v. FedEx Express 15

Claims Administrator, XXXX, XX XXXXX. 16

17

You may also call Plaintiffs' counsel at 1-888-xxx-xxxx.

Please do not contact FedEx Express Managers or H.R. Personnel with questions or concerns 18

about the Settlement. 19

20

21

PLEASE DO NOT CONTA~lT THE COURT.
lsi Hon. Susan rUston

22

United States District Judge

23

24

25

26

27

28

13
NOTICE OF CLASS ACTION SETTLEMENT - CASE NO.: C03-2659 SI; C 03-2878 SI

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Exhibit 3

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CLAIM FORM Satchell v. FedEx Express Corporation
IMPORTANT: To receive a payment from the distribution of the Settlement Fund, your Claim Form MUST be returned to the Claims Administrator POSTMARKED by _ _ _ _ __
INSTRUCTIONS
Submitting Your Claim Form You may return your claim form using the enclosed self-addressed envelope or by mailing the form to:
Satchell v. FedEx Claims Administrator Address Addressl
###/###-#### Signing Your Claim Form In order for your claim to be processed, you must sign, under penalty of perjury, and date the Claim Form on page 4. Confidentiality The information you submit on this claim form, including your social security number, will be kept confidential by the claims administrator. Your social security number is required for your claim to be processed. It will be used solely for tax withholding purposes and for verification of your identity. No Retaliation The Court has issued an Order expressly forbidding any retaliation by FedEx against anyone who has filed a claim. The Claims Administrator will not send FedEx the list of persons who have filed claims. Change of Address If you file a Claim Form it is important that you notify the Claims Administrator by telephone, email or in writing of any change of your address. A failure to notify the Claims Administrator of a change of address may result in you not receiving your check. If you change your address after you have filed a Claim Form you should notify the Claims Administrator by telephone, email or mail:
Satchell v. FedEx, Claims Administrator
1

CasCea3se:033:0-c3v--c0v2-06256959 DDoocucummeennt t772289-4 FilFeidle0d40/40/91/32/0077 PaPgaeg3eo3f 5of 5

Questions and Assistance in Completing the Claim Form

If you have questions regarding the claims procedure or how to complete the Claim Form, you may

contact the Claims Administrator at

. There will be no charge for your call. You

may also email yourquestionsto:info@fedexclaims.com. You may contact class counsel at _ _.

You should not ask any FedEx manager about the claims process. FedEx is not responsible for the claims process.

Completing Your Claim Form

Please review carefully the pre-printed information listed below regarding your employment with FedEx Express. This information is taken from FedEx Express's computer records. If any of the pre-printed information is incorrect, please cross out that incorrect information, and write the correct information above it.

If you make any corrections to the information below, please attach documentary evidence establishing the accuracy of the corrected information. For example, if the information concerning the dates of your employment is incorrect, you should attach W-2 forms or paystubs to establish the dates you actually worked.

PERSONAL INFORMATION

1. Name: JOE EMPLOYEE

2. Address: 4321 MAIN STREET

3. City:

ANYTOWN

4. State: CA 5. Zip: 94000

6. Social Security No.: 999-99-9999

7. Date of Birth:

0110111975

8. Other names used while employed at FedEx:

Name:

Dates Used:

9. Race or Ethnicity: AFRICAN AMERICAN

Contact Information (Optional)

10. Home Phone: (555) 555-1212

. 11. Work Phone: (415) 555-1212

12. Cell Phone: (510) 555-1212

13. E-mail:

jemployee@fedex.com

2

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Employment Information 14. Positions Held at FedEx
Position: HANDLER Status: PART-TIME Dates: JANUARY 3, 2003 - JUNE 15, 2004 Position: SWING DRIVER Status: FULL-TIME Dates: JUNE 16, 2004 - PRESENT Other positions held and dates:

15. Have you ever failed any part of the Basic Skills Test (regardless of whether you later passed)?:
181 Yes D No

If Yes: Date you first failed any part of the BST: Date you passed all parts of the BST:

MARCH i2, 2004

CLAIMS OF DISCRIMINATION
Answer the following question if you worked for FedEx in an hourly position as Handler, CheckerSorter, Customer Service Agent, Courier, Swing Driver, Ramp Transport Driver, Ramp Area Driver, Shuttle Driver, Dangerous Goods Agent, Information Agent, Operations Agent,. Ramp Agent, Service

3

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Assistance Agent, Truck Central Agent Trace Representative, Import Auditor, Team Leader or Dispatcher at any time between October 17, 1999 and [PRELIMINARY APPROVAL DATE]
1. I believe that I suffered discrimination on the basis of my race (African American) or national origin (Latino) in employment in promotion, compensation or discipline or because I failed the Basic Skills Test ("BST").
DYes
D No
Answer the following question if you are African American and you worked for FedEx as an Operations Manager at any time between October 17, 1999 and [PRELIMINARY APPROVAL DATE].
2. I believe that I suffered discrimination on the basis of my race (African American) in employment in compensation or discipline.
DYes
D No
If you are African American and you worked both in an hourly position and as an Operations Manager during the time period from October 17,1999 to [the Preliminary Approval Date], please be sure to answer both questions.

CERTIFICATION

I,

declare under penalty of perjury that the information and facts listed above

are true and accurate to the best of my personal knowledge. I understand that making a knowingly false

statement may subject me to prosecution for perjury.

Date: -----------------

Signature of Claimant

Your Claim Form must be postmarked on or before

. A self-addressed envelope

has been enclosed for returning the Claim Form. The Claim Form must be mailed to:

Satchell v. FedEx Claims Administrator Address Address 1
###/###-####

4

 
 CaseC3a:s0e33-:c0v3--0c2v6-0529659DoDcuomcuemnet n8t68668 FFilieledd07/116/200808PagPea1goef 13 of 3

1 Todd M. Schneider (SBN 158253) Guy B. Wallace (SBN 176151)
2 Nancy Park (SBN 236750) SCHNEIDER WALLACE COTTRELL
3 BRAYTON KONECKY LLP 180 Montgomery Street, Suite 2000
4 San Francisco, CA 94104 Telephone: (415) 421-7100
5 Facsimile: (415) 421-7105

6 Kelly M. Dermody (SBN 171716) LIEFF, CABRASER, HEIMANN &
7 BERNSTEIN, LLP 275 Battery Street, 30th Floor
8 San Francisco, CA 94111-3339 Telephone: (415) 956-1000
9 Facsimile: (415) 956-1008

Michael S. Davis (SBN 160045) LAW OFFICES OF MICHAEL S. DAVIS 345 Hill Street San Francisco, CA 94109 Telephone: (415) 282-4315 Facsimile: (415) 358-5576

10 Additional Class Counsel appear on signature page
11
UNITED STATES DISTRICT COURT 12
NORTHERN DISTRICT OF CALIFORNIA 13

14 DERRICK SATCHELL, KALINI BOYKIN, VALERIE BROWN, RICK GONZALES,
15 CYNTHIA GUERRERO, RACHEL HUTCHINS, TYRONE MERRITT, KELVIN
16 SMITH, SR., and KEN STEVENSON, on behalf of themselves and all others similarly
17 situated,

Case No. C 03-2659 SI; C 03-2878 SI
REQUEST FOR ORDER OF DISMISSAL AND [proposed] ORDER

18

Plaintiffs,

19 v.

20 FEDEX EXPRESS, a Delaware corporation,

21

Defendant.

22

23

24

25

26

27

REQUEST FOR ORDER OF DISMISSAL AND [PROPOSED] ORDER
CASE NO. C 03-2659 SI; C 03-2878 SI

CaseC3a:s0e33-:c0v3--0c2v6-0529659DoDcuomcuemnet n8t68668 FFilieledd07/116/200808PagPea2goef 23 of 3

1

REQUEST FOR ORDER OF DISMISSAL

2

Pursuant to Federal Rule of Civil Procedure (“FRCP”) 41 and this Court’s Order Granting

3 Defendant’s Motion for Counterclaim and Interpleader Relief of July 8, 2008, Plaintiffs Derrick

4 Satchell, Kalini Boykin, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Rachel Hutchins,

5 Tyrone Merritt, Kelvin Smith, Sr., and Ken Stevenson hereby file this Request for Order of

6 Dismissal of their non-class claims with prejudice.

7

8 Respectfully submitted,

9 Date: July 11, 2008

/s/ Guy B. Wallace

10

Guy B. Wallace

11

12

ORDER

13

Pursuant to the Request, the Court ORDERS as follows:

14

The non-class claims of Plaintiffs Derrick Satchell, Kalini Boykin, Valerie Brown, Rick

15 Gonzales, Cynthia Guerrero, Rachel Hutchins, Tyrone Merritt, Kelvin Smith, Sr., and Ken

16 Stevenson are hereby dismissed with prejudice.

17

To the extent that Mr. McCoy may be subject to an award of reasonable attorneys’ fees

18 and costs relating to the dispute resolved by this Court’s Order of April 2, 2008, any firms

19 seeking such an award shall do so in conformance with FRCP 54 and Local Rule 54. Any such 20 application shall be filed by no later than ___7_/_2_8_/0_8_________.

21

22 Date: ____________________

_____________________________

23

The Honorable Susan Illston

24

25

26

27

REQUEST FOR ORDER OF DISMISSAL AND

1

[PROPOSED] ORDER

CASE NO. C 03-2659 SI; C 03-2878 SI

CaseC3a:s0e33-:c0v3--0c2v6-0529659DoDcuomcuemnet n8t68668 FFilieledd07/116/200808PagPea3goef 3 of 3

1 Todd M. Schneider (SBN 158253) Guy B. Wallace (SBN 176151)
2 Nancy Park (SBN 236750) SCHNEIDER WALLACE
3 COTTRELL BRAYTON KONECKY LLP 180 Montgomery Street, Suite 2000
4 San Francisco, CA 94104 Telephone: (415) 421-7100
5 Facsimile: (415) 421-7105
6 Kelly M. Dermody (SBN 171716)
7 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
8 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
9 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
10
11
12
13
14
15 Class Counsel
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Michael S. Davis (SBN 160045) LAW OFFICES OF MICHAEL S. DAVIS 345 Hill Street San Francisco, CA 94109 Telephone: (415) 282-4315 Facsimile: (415) 358-5576
John L. Burris (SBN 69888) Miles Washington (SBN 88288) LAW OFFICES OF JOHN BURRIS 7677 Oakport Bldg., Suite 1120 Oakland, CA 94612 Telephone: (510) 839-5210 Facsimile: (510) 839-3882
Kay McKenzie Parker (SBN 143140) 225 Bush Street, 16th Floor San Francisco, CA 94104 Telephone: (415) 227-9622 Facsimile: (415) 227-4522

REQUEST FOR ORDER OF DISMISSAL AND

2

[PROPOSED] ORDER

CASE NO. C 03-2659 SI; C 03-2878 SI

 
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United States District Court For the Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 DERRICK SATCHELL, et al.,

No. C 03-2659 SI; C 03-2878 SI

9 10 v.

Plaintiffs,

ORDER GRANTING MOTION FOR APPROVAL OF SERVICE PAYMENTS

11 FEDEX EXPRESS,

12

Defendant.

/

13

14

On August 9, 2007, the Court held a hearing on plaintiffs’ motion for approval of service

15 payments. After consideration of the papers submitted in support of the motion, the Court finds that the

16 proposed service payments are fair and reasonable, taking into account “‘the actions the plaintiff[s]

17 [have] taken to protect the interests of the class, the degree to which the class has benefitted from those

18 actions, . . . [and] the amount of time and effort the plaintiff[s] expended in pursuing this litigation . .

19 .’” Staton v. Boeing, 327 F.3d 938, 977 (9th Cir. 2003) (quoting Cook v. Niedert, 142 F.3d 1004, 1016

20 (7th Cir. 1998)). As detailed in the declarations of Guy Wallace and James Finberg, the class

21 representatives assisted in responding to discovery, were deposed, contributed to counsel’s factual

22 investigation, participated in discussions regarding mediation, and prepared to be trial witnesses. The

23 declarants also provided significant and valuable assistance to the class in that they were interviewed

24 repeatedly, participated in conference calls and meetings, and were deposed.

25

The Court has considered objections filed by two declarants. Declarant Brett Hoiland does not

26 specifically object to the amounts of the service payments. Instead, Mr. Hoiland objects that the class

27 action settlement “greatly dilutes my individual claims,” and Mr. Hoiland states that he would have

28 pursued an individual action but for the fact that his individual claims are barred by the statute of

Case3:03-cv-02659 Document779 Filed08/14/07 Page2 of 3

United States District Court For the Northern District of California

1 limitations. At the fairness hearing, Mr. Hoiland (through plaintiffs’ counsel) inquired whether the

2 Court could allow Mr. Hoiland’s individual claims to proceed despite the fact that those claims would

3 be untimely. The Court explained that if individual claims are not filed within the statute of limitations,

4 those claims are lost. Mr. Hoiland also objects that class members will receive monetary settlements

5 even though those individuals did not actively participate in the case. At the fairness hearing, the Court

6 explained that class actions are intentionally structured to allow class representatives to bring a case

7 on behalf of a large number of people without requiring the active involvement of class members.

8

Declarant Rosalinda Olmos also filed an objection. Ms. Olmos does not challenge the amount

9 of the declarant service award, but rather contends that she should be treated like a class representative

10 because she was originally a named plaintiff in this action.1 At the fairness hearing, plaintiffs’ counsel

11 recognized Ms. Olmos’ contributions to this case, and the Court commends Ms. Olmos for her

12 significant service. However, the Court finds that because Ms. Olmos did not act as a class

13 representative for much of the litigation, it is appropriate that she receive a declarant service award.

14

15

Accordingly, the Court GRANTS plaintiffs’ motion for approval of the service awards. (Docket

16 No. 757). The Claims Administrator shall distribute the following amounts pursuant to the Consent

17 Decree:

18

(1) $30,000 each to Derrick Satchell, Kalini Boykin, Valerie Brown, Rick Gonzales, Cynthia

19

Guerrero, Rachel Hutchins, Tyrone Merrit, Kelvin Smith Sr., and Ken Stevenson.

20

21

(2) $5,000 each to Sheila Akins, Virgil Banks, Yolanda Canela, Bonta Clarke, Eric

22

Foreman, Maurice Griffin, Janet Haynes, Eric Hill, Brett Hoiland, Ingrid James, Zeno

23

Latin, Venturi McCray Sr., Mitchell McCoy, Rose Moncrief, Antonio Norris, Rosalinda

24

Olmos, Beverly Patterson, and Mimi Steel.

25

26 These amounts are separate and apart from any other recovery to which these individuals might be
27 1 Ms. Olmos was listed as a named plaintiff in the first amended complaint filed in June 2003,
28 but did not appear as a named plaintiff in the consolidated amended complaint filed in November 2003.

2

Case3:03-cv-02659 Document779 Filed08/14/07 Page3 of 3

United States District Court For the Northern District of California

1 entitled under other provisions of the Consent Decree.

2

3

IT IS SO ORDERED.

4

5 Dated: August 14, 2007

6

7

8

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10

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13

14

15

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27

28

3

SUSAN ILLSTON United States District Judge

 
 Case3:03-cv-02659 Document778 Filed08/14/07 Page1 of 3

United States District Court For the Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 DERRICK SATCHELL, et al.,

No. C 03-2659 SI; C 03-2878 SI

9

Plaintiffs,

10 v.

11 FEDEX EXPRESS,

ORDER GRANTING PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS AND EXPENSES

12

Defendant.

/

13

14

15

On August 9, 2007, the Court held a hearing on plaintiffs’ motion for fees and costs. After

16 consideration of the Consent Decree, plaintiffs’ motion and supporting declarations, and the proceedings

17 in this action to date, the Court hereby GRANTS plaintiffs’ fee application and awards $12,425,000 in

18 attorneys’ fees and $2,575,000 in costs and expenses. (Docket No. 738).

19

The parties to this class action lawsuit settled the action and entered into a proposed Consent

20 Decree that provides for comprehensive injunctive and monetary relief for the class. The proposed

21 Consent Decree also provides, inter alia, for an award of $15 million in attorneys’ fees and costs to class

22 counsel. On April 13, 2007, this Court granted preliminary approval to the Consent Decree. The

23 preliminary approval order directed that notice of the Consent Decree, including specific notice about

24 the amount of attorneys’ fees and costs sought by class counsel, be provided to the class. The Court set

25 a hearing for August 9, 2007, to determine whether the Court should grant final approval to the Consent

26 Decree, and whether plaintiffs’ fee request should be granted. Prior to the August 9, 2007 fairness

27 hearing, class counsel filed a motion in support of their fee and cost request. Plaintiffs’ motion was

28

Case3:03-cv-02659 Document778 Filed08/14/07 Page2 of 3

United States District Court For the Northern District of California

1 accompanied by declarations filed in camera setting forth detailed time records.1 No class member

2 objected to the amount of attorneys’ fees and costs requested.

3

The Court finds that the amount requested in attorneys’ fees and costs, which defendant has

4 agreed to pay as part of the settlement of this matter, is fair and reasonable under both the “lodestar” and

5 the “common fund” methods. Class counsel’s reasonable lodestar amount exceeds the amount plaintiffs

6 request in attorneys’ fees. Analyzed under the percentage method, the Court finds that the attorneys’

7 fees sought by plaintiffs are 22.6% of the total monetary recovery, which is under the Ninth Circuit’s

8 25% benchmark in common fund cases. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir.

9 1998). As for costs and expenses, the Court finds that the reasonable costs and expenses actually

10 incurred by class counsel in the prosecution of this case exceeds the amount sought for reimbursement.

11

Class counsel have informed the Court that they have agreed to an allocation of fees and costs

12 amongst counsel. In accordance with counsel’s agreement, the Court hereby orders that the $15 million

13 in fees and costs shall be awarded as follows:

14

Lieff, Cabraser, Heimann & Bernstein

$5,867,852.57

15

Schneider & Wallace

$3,462,704.53

16

Michael S. Davis

$2,364,838.92

17

Waukeen Q. McCoy

$1,070,000.00

18

Barry Goldstein

$718,980.00

19

Altshuler Berzon LLP

$708,860.86

20

John Burris

$448,580.93

21

Kay McKenzie Parker

$358,182.19

22

FedEx shall withhold $71,008.47 from its payment to class counsel in order to satisfy the lien

23 filed by Angela Alioto & Angela Alioto Professional Law Corporation against Waukeen Q. McCoy

24 and/or the Law Offices of Waukeen Q. McCoy. In making the allocation of the fee and costs award

25

26

27

1 The Law Offices of Waukeen McCoy, one of the firms appointed as class counsel, originally

28

filed a separate application for attorneys’ fees and costs but has since notified the Court that it no longer seeks a ruling on that separate application, and instead joins in plaintiffs’ application.

2

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United States District Court For the Northern District of California

1 between counsel, class counsel shall deduct $71,008.47 from Mr. McCoy’s portion.

2

3

IT IS SO ORDERED.

4

5 Dated: August 14, 2007 6

SUSAN ILLSTON United States District Judge

7

8

9

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3

 
 Case3:03-cv-02659 Document890 Filed12/29/08 Page1 of 4

United States District Court For the Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 DERRICK SATCHELL, et al.,

No. C 03-2659 SI; No. C 03-2878 SI

9

Plaintiffs,

10 v.

11 FEDEX EXPRESS,

ORDER GRANTING MOTION FOR PLAINTIFFS’ COUNSEL’S REASONABLE ATTORNEYS’ FEES REGARDING MOTION FOR DECLARATORY RELIEF

12

Defendant.

/

13

14

Plaintiffs’ counsel have filed a motion for attorneys’ fees regarding the motion for declaratory

15 relief. Pursuant to Civil Local Rule 7-1(b), the Court determines that the matter is appropriate for

16 resolution without oral argument.

17

Plaintiffs’ counsel seeks an award of reasonable fees and costs in connection with the Court’s

18 April 2, 2008 Order Granting Plaintiffs’ Motion for Declaratory Relief.1 In that order, the Court granted

19 the motion filed by the Schneider Wallace firm on behalf of the class representatives, and held that the

20 class representatives were entitled to keep all of their individual settlement awards, and that Waukeen

21 McCoy was not entitled to his demanded additional attorneys’ fees. Plaintiffs’ counsel (primarily the

22 Schneider Wallace firm) now seeks from Mr. McCoy a total of $46,605.87 in fees and costs incurred

23 in bringing and winning that motion.2 Plaintiffs’ counsel seek their fees and costs pursuant to the

24 attorneys’ Co-Counsel Agreement, which provides “The prevailing party in any dispute arising out of

25 this agreement shall be entitled to reasonable fees and costs incurred in the proceeding.” McCoy Decl.

26

27

1 The Court incorporates that order by reference.

28

2 The total sought reflects a 20% deduction in the exercise of billing judgment, as well as other discrete deductions.

Case3:03-cv-02659 Document890 Filed12/29/08 Page2 of 4

United States District Court For the Northern District of California

1 Ex. B ¶ 14. Plaintiffs’ counsel argue that the motion for declaratory relief was a “dispute arising out of

2 [the Co-Counsel] agreement” because Mr. McCoy’s demand for attorneys’ fees from the class

3 representatives in addition to the $1,070,000 that he had been awarded in connection with the class

4 settlement implicated Paragraph 9 of the Co-Counsel Agreement: “The fee agreements with the

5 proposed class representatives will make clear that if the case is certified as a Class and the Class

6 prevails, Class Counsel will apply to the court for a reasonable fee, and that the proposed class

7 representatives will not have to pay fees beyond the fees awarded by the court.” Id. ¶ 9.

8

Mr. McCoy objects to the motion for attorneys’ fees on several grounds. First, Mr. McCoy

9 characterizes the motion for declaratory relief as one brought by Schneider Wallace, not a motion

10 brought on behalf of the class representatives. As a corollary to this argument, Mr. McCoy contends

11 that the class representatives are neither parties to nor third party beneficiaries of the Co-Counsel

12 Agreement. Mr. McCoy then argues that because Schneider Wallace “litigated in propia persona” the

13 firm is not entitled to recover fees and costs associated with the declaratory relief motion.

14

The Court finds this contention lacks merit because the class representatives are third party

15 beneficiaries of the Co-Counsel Agreement. “A third party may qualify as a beneficiary under a

16 contract where the contracting parties must have intended to benefit that individual and such intent

17 appears on the terms of the agreement.” Harper v. Wausau Ins. Co., 56 Cal. App. 4th 1079, 1087

18 (1997). Paragraph 9 of the Co-Counsel Agreement was intended to benefit the class representatives

19 because it states that “the proposed class representatives will not have to pay fees beyond the fees

20 awarded by the court.” McCoy Decl. Ex. B ¶ 9. Further, the motion for declaratory relief was brought

21 at the request of the class representatives,3 and in that motion plaintiffs sought a declaration that under

22 both the Co-Counsel Agreement and the Attorney Retainer Agreement, Mr. McCoy was not entitled to 23 seek any further attorneys’ fees from the class representatives. Although Mr. McCoy and the rest of 24 plaintiffs’ counsel disagreed about whether Mr. McCoy was entitled to seek additional fees, the true 25 legal dispute was between Mr. McCoy and the class representatives. Because the declaratory relief 26 motion was filed on behalf of the class representatives, the cases and statutes cited by Mr. McCoy for 27
3 The class representatives filed declarations in support of the motion for declaratory relief. 28 (Docket Nos. 819-26).

2

Case3:03-cv-02659 Document890 Filed12/29/08 Page3 of 4

United States District Court For the Northern District of California

1 the proposition that a lawyer acting in pro per is not entitled to fees are inapplicable.

2

Second, Mr. McCoy contends that even if the dispute leading to the motion for declaratory relief

3 arose from the Co-Counsel Agreement, Schneider Wallace cannot obtain fees unrelated to an arbitration

4 proceeding. Mr. McCoy relies on Paragraph 13 of the Co-Counsel Agreement, which states:

5

13. Mediation Arbitration

6

If a dispute arises between Co-Counsel, or any of them, arising under this Agreement or

relating to its application to the payment or recovery of costs, expenses, or attorneys’

7

fees by or to Co-Counsel hereunder, the parties will first meet and confer to attempt to

resolve the dispute, and, if the dispute is not resolved by meeting and conferring, submit

8

the dispute to confidential mediation using a mediator from the Northern California

office of J.A.M.S. If the dispute is not resolved through mediation, Co-Counsel will

9

resolve the dispute through confidential arbitration before an arbitrator from J.A.M.S.

office mutually agreed to by the parties. If the parties have not agreed on an arbitrator

10

within two weeks of the notice of the arbitration, each side shall select a party arbitrator

from the J.A.M.S. office of Northern California, and the two party arbitrators shall select

11

a neutral third arbitrator.

12 Id. ¶ 13. Mr. McCoy argues that because plaintiffs’ counsel filed the motion for declaratory relief rather

13 than submit the matter to arbitration, plaintiffs’ counsel is precluded from seeking fees under the Co-

14 Counsel Agreement. Plaintiffs’ counsel responds that Mr. McCoy waived his right to arbitration by

15 never raising arbitration in connection with the motion for declaratory relief. Plaintiffs’ counsel also

16 argues that the Co-Counsel Agreement does not limit the right to fees and costs to those arising out of

17 arbitration, but instead broadly provides that “[t]he prevailing party in any dispute arising out of this

18 agreement shall be entitled to reasonable fees and costs incurred in the proceeding.” Id. ¶ 14.

19

The Court agrees that Mr. McCoy waived any right he had to arbitrate the matters presented by

20 the motion for declaratory relief. Mr. McCoy contends he did not waive these rights because, in

21 opposing the motion for declaratory relief, Mr. McCoy argued that the Court lacked jurisdiction to

22 decide the motion. However, in those oppositions Mr. McCoy argued that the matter belonged in state

23 court, and Mr. McCoy never asserted that the matter was subject to arbitration under the Co-Counsel

24 Agreement.4 The Court does not interpret the Co-Counsel Agreement to limit recovery of fees and costs

25 only to those incurred in an arbitration proceeding.

26

4 Mr. McCoy appealed the Court’s order granting plaintiffs’ motion for declaratory relief. In 27 his opposition, Mr. McCoy states that on appeal he will request that the matter be remanded to this

28

Court to determine whether the dispute is arbitrable. In the event the Ninth Circuit remands the matter to this Court, the Court will proceed in accordance with the Ninth Circuit’s guidance.

3

Case3:03-cv-02659 Document890 Filed12/29/08 Page4 of 4

United States District Court For the Northern District of California

1

Accordingly, because the Court concludes that the motion for declaratory relief was a “dispute

2 arising out of [the Co-Counsel Agreement],” plaintiffs’ counsel is entitled to their reasonable fees and

3 costs associated with that motion. The Court finds that counsel’s fees and costs are documented and

4 reasonable, and notes that Mr. McCoy has not raised any objection to the rates sought or hours

5 expended.

6

CONCLUSION

7

For the foregoing reasons, the Court GRANTS the motion for attorneys’ fees regarding the

8 motion for declaratory relief, and ORDERS Mr. McCoy to pay $46,605.87 to Schneider Wallace

9 Cottrell Brayton Konecky LLP. (Docket No. 870). Unless the parties agree otherwise is writing, this

10 payment shall be made no later than January 23, 2009.

11

IT IS SO ORDERED.

12

13 Dated: December 29, 2008 14

SUSAN ILLSTON United States District Judge

15

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 Case3:03-cv-02659 Document865 Filed07/09/08 Page1 of 2

United States District Court For the Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 DERRICK SATCHELL, et al.,

No. C 03-2659 SI; No. C 03-2878 SI

9 10 v.

Plaintiffs,

ORDER GRANTING DEFENDANT’S MOTION FOR COUNTERCLAIM AND INTERPLEADER RELIEF

11 FEDEX EXPRESS,

12

Defendant.

/

13

14

Defendant’s unopposed motion for counterclaim and interpleader relief is scheduled for a

15 hearing on July 11, 2008. Pursuant to Civil Local Rule 7-1(b), the Court determines that the matter is

16 appropriate for resolution without oral argument, and VACATES the hearing.

17

18

DISCUSSION

19

Defendant and the named plaintiffs have agreed to settle plaintiffs’ non-class claims with

20 prejudice. A dispute has arisen among plaintiffs’ counsel regarding entitlement to attorneys’ fees related

21 to representation of the named plaintiffs on the non-class claims, and as a result, defendant seeks to

22 interplead 40% of the settlement funds in order to protect itself against duplicative claims for attorneys’

23 fees and/or costs. The settling plaintiffs have agreed to an interpleader action. No opposition has been

24 filed.

25

The Court finds that interpleader is an appropriate and necessary safeguard while the attorneys’

26 fees and costs issues are adjudicated. Mr. McCoy filed a notice of appeal of this Court’s April 2, 2008

27 order, and once that appeal is exhausted, this Court can resolve the competing claims to attorneys’ fees.

28 Impleading the funds will protect FedEx against multiple claims for fees, will protect the competing

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United States District Court For the Northern District of California

1 claimants to the fees while Mr. McCoy’s appeal is pending, and will allow the parties to finalize the

2 settlements and dismiss the named plaintiffs’ non-class claims with prejudice.

3

4

CONCLUSION

5

For the foregoing reasons, the Court GRANTS defendant’s motion for counterclaim and

6 interpleader relief. (Docket No. 857). The Clerk shall retain control in the Court’s registry of the funds

7 which have already been wired to the Court. After Mr. McCoy’s appeal has been resolved, the Court

8 shall determine how the interplead funds should be disbursed. The named plaintiffs shall file a dismissal

9 with prejudice of their non-class claims no later than July 11, 2008.

10

11

IT IS SO ORDERED.

12

13 Dated: July 8, 2008 14

SUSAN ILLSTON United States District Judge

15

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2

 
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United States District Court For the Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 DERRICK SATCHELL, et al.,

No. C 03-2659 SI; C 03-2878 SI

9

Plaintiffs,

10 v.

11 FEDEX EXPRESS,

ORDER GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND CONSENT DECREE; CONFIRMING FINAL CERTIFICATION OF CLASSES

12

Defendant.

/

13

14

15

On August 9, 2007, the Court held a final fairness hearing to determine whether the Consent

16 Decree should be given final approval. On April 13, 2007, the Court granted preliminary approval to

17 the Consent Decree, and directed that notice of the settlement terms be provided to the class. After

18 consideration of the Consent Decree, the papers submitted in support of final approval, the response of

19 the class to the settlement, and the proceedings in this action to date, the Court hereby GRANTS the

20 motion for final approval (Docket No. 751) and orders as follows:

21

1. Except as otherwise specified in this order, the Court adopts all defined terms set forth

22 in the Consent Decree, attached as Exhibit 1 to the April 13, 2007 order granting preliminary approval;

23

2. The Court confirms as final its conditional certification of the injunctive relief-classes

24 and the monetary-relief Settlement Class, as defined in the Consent Decree and in Section III of the

25 April 13, 2007 order, for purposes of settlement and based on the findings in Section III of the April 13,

26 2007 order and the absence of any objections from any class members to such certification.

27

3. The Court confirms as final the appointment of Derrick Satchell, Kalini Boykin, Valerie

28 Brown, Rick Gonzales, Cynthia Guerrero, Rachel Hutchins, Tyrone Merritt, Kelvin Smith Sr., and Ken

Case3:03-cv-02659 Document780 Filed08/14/07 Page2 of 3

United States District Court For the Northern District of California

1 Stevenson as class representatives as stated in Section IV of the April 13, 2007 order.

2

4. The Court confirms as final the appointment of the following as Class Counsel: Altshuler

3 Berzon LLP; Lieff, Cabraser, Heimann & Bernstein, LLP; Schneider & Wallace; Law Office of John

4 Burris; Law Offices of Michael S. Davis; Law Offices of Kay McKenzie Parker; Law Offices of

5 Waukeen Q. McCoy; and Barry Goldstein, of counsel to Goldstein, Demchak, Baller, Borden and

6 Dardarian.

7

5. The Class Notice and Claim Form given to class members, pursuant to the Court’s orders,

8 constituted the best notice practicable under the circumstances, was accomplished in all material

9 respects, and met the requirements of Rule 23 of the Federal Rules of Civil Procedure, the United States

10 Constitution, and any other applicable law.

11

6. Pursuant to Federal Rule of Civil Procedure 23(e), the Court grants final approval to the

12 Consent Decree and the settlement set forth therein. The Court finds that the Consent Decree and

13 settlement are fair, reasonable and adequate in all respects. The Court specifically finds that the

14 settlement is rationally related to the strength of plaintiffs’ and class members’ claims given the risk,

15 expense, complexity and duration of further litigation. This Court also finds that the parties engaged

16 in thorough factual and legal investigation, and that the Consent Decree is the result of arms-length

17 negotiations between experienced counsel representing the interests of the parties. See Staton v. Boeing,

18 327 F.3d 938, 960 (9th Cir. 2003); Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1291 (9th Cir.

19 1992).

20

7. The Court further finds that the response of the class to the settlement supports final

21 approval. The deadline for postmarking claim forms was August 1, 2007, and of the 23,970 class

22 members who received mailed notice, 10,582 submitted claim forms as of July 27, 2007. Only four

23 class members submitted objections, and one of those, submitted by Maurice A. Smith, was untimely. 24 The Court has reviewed and considered the objections submitted by Brett Hoiland, LaKeysha Dorsey, 25 Rosalinda Olmos, and Maurice A. Smith, and finds that they do not raise concerns that warrant rejecting 26 the settlement. The Court hereby incorporates its discussion of the objections submitted by class 27 members Hoiland and Olmos, as set forth in the Order Granting Plaintiffs’ Motion for Approval of 28 Service Payments. Ms. Dorsey’s objection states that she believes that the “monetary relief being

2

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United States District Court For the Northern District of California

1 provided is not commensurate with the loss,” and that she will “present new evidence through a lawyer

2 at the final fairness hearing.” Neither Ms. Dorsey nor anyone acting on her behalf appeared at the

3 August 9, 2007 hearing. Mr. Smith also appears to object to the monetary relief, and his papers state

4 that he “will settle for $1,140,000.00.” The Court finds that these objections are not well-founded, and

5 that the monetary relief provided to the class is considerable. The Court also finds that the mechanisms

6 and procedures set forth in the Consent Decree by which payments are to be calculated and made to

7 class members who have filed timely claims are fair, reasonable, and adequate. The Court also notes

8 that Ms. Dorsey and Mr. Smith were free to exclude themselves from the monetary portion of the

9 settlement and pursue their claims independently; neither chose to exercise that option.

10

8. The Court approves the parties’ agreement to permit Herman Savage and Michelle

11 Swallow to rescind their requests for exclusion, even though their rescission requests were submitted

12 after the deadline for rescissions set forth in the Court’s April 13, 2007 order.

13

9. The Court approves the parties’ agreement to treat the requests for exclusion submitted

14 by Nicholas Benavente, Eloisa Blandon, Hector Garcia, and Richard Zapata as effective, even though

15 the requests did not use the precise language required by the Court’s April 13, 2007 order.

16

10. By operation of the entry of this Order and the Final Judgment, all released claims are

17 fully, finally and forever released, relinquished and discharged, pursuant to the terms of the Consent

18 Decree, as to all monetary-relief Settlement Class members other than those listed in Exhibit A to the

19 Final Judgment. The Court has reviewed the release provision in the Consent Decree, and the Court

20 finds the releases to be fair, reasonable, and enforceable under applicable law. All claims released

21 pursuant to the Consent Decree are dismissed with prejudice as to all class members other than those

22 listed in Exhibit A to the Final Judgment.

23

11. The Court retains jurisdiction over this matter for purposes of resolving issues relating

24 to administration, implementation and enforcement of the Consent Decree.

25

IT IS SO ORDERED.

26

27 Dated: August 14, 2007 28

SUSAN ILLSTON United States District Judge

3

 
 Case3:03-cv-02659 Document743 Filed06/20/07 Page1 of 5

1 James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709)
2 Danielle E. Leonard (SBN 218201)
Claire Prestel (SBN 235649) 3 ALTSHULER BERZON LLP
177 Post Street, Suite 300 4 San Francisco, CA 94108
Telephone: (415) 421-7151 5 Facsimile: (415) 362-8064

6 Additional counsel for Plaintiffs on signature page

7 Jeana M. Littrell Frederick L. Douglas
8 FEDERAL EXPRESS CORPORATION 9 3620 Hacks Cross Road, Bldg. B, 3rd Floor
Memphis, TN 38125-8800 10 Telephone: (901) 434-8519
Facsimile: (901) 434-9271 11
Attorneys for the Defendant 12

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

DERRICK SATCHELL, KALINI BOYKIN, 17 VALERIE BROWN, RICK GONZALES,

Case No.: C03-2659 SI; C 03-2878 SI

18

CYNTHIA GUERRERO, RACHEL HUTCHINS, TYRONE MERRIT, KELVIN SMITH, SR., and

CLASS ACTION

KEN STEVENSON, on behalf of themselves and 19 all others similarly situated,

STIPULATION AND [PIt6'6~~J)] ORDER

20

Plaintiffs,

RE: INTERPRETATION OF SECTION XXII.A.l OF THE CONSENT DECREE

21 vs.

22 FEDERAL EXPRESS CORPORATION, a
23 Delaware Corporation,
Defendant. 24

25

26

27

28

STIPULATION AND [PROPOSED] ORDER RE: INTERPRETATION OF SECTION XXII .fA OF THE CONSENT DECREE Case No. 03-2659 Sl; 03-2878 SI

Case3:03-cv-02659 Document743 Filed06/20/07 Page2 of 5

1

WHEREAS, paragraph XXII.A.I of the Consent Decree provides that the amount to be paid by

2 FedEx Express shall be computed as follows:

3

"The precise amount to be paid by FedEx Express will be calculated as follows:

4 1) $53,500,000.00, plus
5
2) either 5% [.05] or the United States Treasury Bill percentage rate as established 6

7

on the tenth (1oth) business day after Preliminary Approval, whichever is lower,

8

multiplied by $53,000,000.00 less the amount of the incremental payments for

9

the period between the tenth (1oth) business day after Preliminary Approval and

10

the date FedEx Express wire transfers incremental payment to the Settlement

11 Fund Account as and at the times required under this Consent Decree. Any opt-
12 out credits due, pursuant to Section XXILD.4. shall be deducted from the final
13
payment before calculation of the lower of the 5% or the United States Treasury 14

15

Bill rate." (Consent Decree at p. 34).

16

17

WHEREAS, neither Section Xx. A. I nor any other part of the Consent Decree specifies which

18 United States Treasure Bill percentage rate shall apply; 19

20

WHEREAS, at the close of business on April 27, 2007, the 10th business day after Preliminary

21

22 Approval, the 6 month T-Bill rate was 5.03%, but the 3 month T-Bill rate was 4.924%;

23

24

WHEREAS, if the Court awards the attorneys' fees and costs and service awards requested on

25 or about the date of the final approval hearing, and unless a timely direct appeal ofthe Court's 26

27

28
I
STIPULATION AND [PROPOSED] ORDER RE: INTERPRETATION OF SECTION XXII. I.A. OF THE CONSENT DECREE Case No. 03-2659 Sl; 03-2878 Sl

Case3:03-cv-02659 Document743 Filed06/20/07 Page3 of 5

1 approval of the Consent Decree is filed, those amounts will be paid on or about September 18, 2007,

2 approximately 5 months after Preliminary Approval;
3

4 WHEREAS, if the Court signs the Consent Decree on the Approval Date, and unless a timely
5 direct appeal of the Court's approval of the Consent Decree is filed, checks will be sent to class
6 7 members after completion ofthe claims administration process, on or about mid-November,
8 approximately 7 months after Preliminary Approval;

9

10

WHEREAS, 5.03% is greater than 5%;

11

12 The parties stipulate and agree that paragraph XXII.A.l of the Consent Decree shall be
13
interpreted as follows: 14

15

16

1. A rate of 4.924% will apply to amounts that the Court awards as attorneys fees and

17 costs and service payments, and a rate of 5% will apply to the balance of $53,300,000.00, less those 18 amounts and any opt-out credits. 19

20

21
22 Dated: T ~ \. '3
23

,2007

M. Finberg

24

James M. Finberg (SBN 114850)

Eve H. Cervantez (SBN 164709)

25

Danielle E. Leonard (SBN 218201)

Claire Prestel (SBN 235649)

26

ALTSHULER BERZON LLP

177 Post Street, Suite 300

27

San Francisco, CA 94108

Telephone: (415) 421-7151

28

2
STIPULATION AND [PROPOSED] ORDER RE: INTERPRETATION OF SECTION XXII. I.A. OF THE CONSENT DECREE
Case No. 03-2659 SI; 03-2878 SI

Case3:03-cv-02659 Document743 Filed06/20/07 Page4 of 5

1

Facsimile: (415) 362-8064

2

Kelly M. Dermody (SBN 171716)

3

Daniel E. Barenbaum (SBN 209261) LIEFF, CABRASER, HEIMANN

4

& BERNSTEIN, LLP 275 Battery Street, 30th Floor

San Francisco, CA 94111-3339

5

Telephone: (415) 956-1000

Facsimile: (415) 956-1008 6

7

Todd M. Schneider (SBN 158253) Guy B. Wallace (SBN 176151)

8

SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000

9

San Francisco, CA 94104 Telephone: (415) 421-7100

10

Facsimile: (415) 421-7105

11

John L. Burris (SBN 69888)

LAW OFFICES OF JOHN L. BURRIS

12

7677 Oakport Street, Suite 1120

13

Oakland, CA 94612 Telephone: (510) 839-5200 ext. 67

14

Facsimile; (510) 839-3882

15

Michael S. Davis (SBN 160045)

LAW OFFICES OF MICHAEL S. DAVIS

16

345 Hill Street

17

San Francisco, CA Telephone: (415) 282-4315

18

Facsimile: (415) 358-5576

19

Barry Goldstein (SBN 141868)

GOLDSTEIN, DEMCHAK, BALLER,

20

BORGEN & DARDARIAN

21

300 Lakeside Drive, Suite 1000 Oakland, CA 94612

22

Telephone: (510) 763-9800

Facsimile: (510) 835-1417

23

Waukeen Q. McCoy (SBN 168228)

24

LAW OFFICES OF WAUKEEN Q. McCOY

25

703 Market Street, Suite 1407 San Francisco, CA 94103

26

Telephone (415) 675-7705

Facsimile: (415) 675-2530

27

28
3
STIPULATION AND [PROPOSED] ORDER RE: INTERPRETATION OF SECTION XXI!.] A OF THE CONSENT DECREE Case No. 03-2659 SI; 03-2878 SI

Case3:03-cv-02659 Document743 Filed06/20/07 Page5 of 5

1

Kay McKenzie Parker (SBN 143140)

LAW OFFICES OF KAY McKENZIE

2

PARKER

3

225 Bush Street, 16th Floor San Francisco, CA 94104

4

Telephone: (415) 227-9622

Facsimile: (415) 227-4522

5

Attorneys for the Plaintiffs 6

7 8 Dated: June 13, 2007 9

By:

lsi Frederick L. Douglas

Frederick L. Douglas

10

Jeana M. Littrell

11

Frederick L. Douglas FEDERAL EXPRESS CORPORATION

12

3620 Hacks Cross Road, Bldg. B, 3rd Floor

Memphis, TN 38125-8800

13

Telephone: (901) 434-8519

Facsimile: (901) 434-9271 14

15

Attorneys for the Defendant

16

17

18

19

ORDER

20

The forgoing stipulation is approved, and IT IS SO ORDERED.

21

22

06/19/07 Dated: -----------------------

23

TATES DISTRICT C

UNITED S ALIFORNIA

OURT NORTH

24

25

26 27

Judge Susan Illston

28

ERN DISTRICT OF C STIPULAnON AND [PROPOSED] ORDER RE: INTERPRETAT ~_ _toe'T'< XI!.! A OF THE CONSENTDECREE

Case No. 03~2659 s!; 03-2878 SI

 
 CaseCa3s:0e33-:c0v3--0c2v6-0529659DoDcuomcuemnet n8t58556 FFilieledd05/237/200808PagPea1goef 15 of 5

1 James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709)
2 ALTSHULER BERZON LLP 177 Post Street, Suite 300
3 San Francisco, California 94108 Telephone: (415) 421-7151
4 Facsimile: (415) 362-8064

5 Kelly M. Dermody (SBN 171716) LIEFF, CABRASER, HEIMANN &
6 BERNSTEIN, LLP 275 Battery Street, 30th Floor
7 San Francisco, CA 94111-3339 Telephone: (415) 956-1000
8 Facsimile: (415) 956-1008

9 Attorneys for Plaintiffs and Class Counsel
[additional counsel on signature pageJ
10
UNITED STATES DISTRICT COURT 11

12

NORTHERN DISTRICT OF CALIFORNIA

13 DERRICK SATCHELL, KALINI BOYKIN, VALERIE BROWN, RICK
14 GONZALES, CYNTHIA GUERRERO, RACHEL HUTCHINS, TYRONE
15 MERRITT, KELVIN SMITH, SR., and KEN STEVENSON, on behalf of
16 themselves and all others similarly situated,

Case No. C 03-2659 SI; C 03-2878 SI CLASS ACTION
STIPULATION AND [PROPOSED] ORDER RE: PAYMENTS TO CLASS MEMBERS

17

Plaintiffs,

18 v.
19 FEDEX EXPRESS, a Delaware corporation,
20 Defendant.
21

22

23

24

25

26

27

28

STIPULATION AND [PROPOSED] ORDER APPROVING PAYMENTS TO CLASS MEMBERS
CASE NO. C 03-2659 SI; C 03-2878 SI

CaseCa3s:0e33-:c0v3--0c2v6-0529659DoDcuomcuemnet n8t58556 FFilieledd05/237/200808PagPea2goef 25 of 5

1

WHEREAS, the deadline for claims forms under the Consent Decree required that claims

2 forms be mailed to the Claims Administrator postmarked no later than August 1, 2007;
3
WHEREAS, based on claims forms received as of October 1,2007, including several late
4
claims forms permitted by prior stipulation of the parties and Order of this Court, the Claims 5
Administrator calculated the amount owing to each class member pursuant to the Plan of 6
7 Allocation and mailed out checks to 12,053 class members on December 5,2007;

8

WHEREAS, by stipulation of the parties, and an April 1, 2008 Order of this Court, the

9 Claims Administrator mailed out checks totaling approximately $36,068.72 to nine additional
10 Class Members;
11 WHEREAS, it appears to the parties that the following 14 Class Members submitted
12 timely claims forms but did not receive settlement checks because the checks were sent to an
13 14 outdated address by the Claims Administrator: Latrice Anderson, Deborah Stanfield, Hector
15 Lizarraga, Sylvia Fowler, Mahasse Cornelius, Azuncena Perez, Noel Richardson, Shameika

16 Newmann, Jillbetta Goff, Eugene Sedillo, Candace Culpepper, Willeeda Haynes, Andre

17 Wi111iams, and Omar Franklin;

18

WHEREAS, the total amount of the claims for Latrice Anderson, Deborah Stanfield,

19 Hector Lizarraga, Sylvia Fowler, Mahasse Cornileus, Azuncena Perez, Noel Richardson,
20
Shameika Newmann, Jillbetta Goff, Eugene Sedillo, Candace Culpepper, Willeeda Haynes, 21

22 Andre Wi111iams, and Omar Franklin is $8,987.44;

23

WHEREAS, it appears to the parties that the following class member submitted an

24 untimely claims form that was untimely through no fault of his own:

25

Brock Florez was serving overseas in the army until the spring of 2008 and therefore did

26 not receive the Notice and Claim Form until after the Claims Form filing deadline. The value of
27 his claim is approximately $2,300.
28

- 1-

STIPULATION AND [PROPOSED] ORDER APPROVING PAYMENTS TO CLASS MEMBERS
CASE NO. C 03-2659 SI; C 03-2878 SI

CaseCa3s:0e33-:c0v3--0c2v6-0529659DoDcuomcuemnet n8t58556 FFilieledd05/237/200808PagPea3goef 35 of 5

1

WHEREAS, there is approximately $6,071.96 remaining in the QSF from checks issued

2 that have not been cashed, despite diligent efforts to locate those claimants;

3
WHEREAS, Class Counsel believe it is appropriate to take approximately $5,215.48 from
4
the fund set aside to pay Class Counsel for monitoring the Decree in order to pay all of these 14 5
Claimants and Mr. Flores. 6

7

THEREFORE, the parties hereby stipulate and agree as follows:

8

1. The Claims Administrator shall pay Latrice Anderson, Deborah Stanfield, Hector

9

Lizarraga, Sylvia Fowler, Mahasse Cornelius, Azuncena Perez, Noel Richardson,

10

Sheimeka Newmann, Jillbetta Goff, Eugene Sedillo, Candace Culpepper, Willeeda

11 Haynes, Andre Williams, Omar Franklin, and Brock Florez from funds remaining from
12 uncashed checks in the Settlement Fund Account in accordance with the Plan of
13

14

Allocation and to the extent necessary, from funds set aside for the Monitoring Counsel in

15

accordance with Section XXIII. C of the Consent Decree.

16

2. No additional late claims will be accepted.

17 Dated: May 23, 2008
18 19 20 21 22 23 24 25 26 27 28

ALTSHULER BERZON LLP

By: lsi James M Finberg James M. Finberg

Attorneys for Plaintiffs and Class Counsel

James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, California 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064

Kelly M. Dermody (SBN 171716) LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

-2-

STIPULATION AND [PROPOSED] ORDER APPROVING PAYMENTS TO CLASS MEMBERS
CASE NO. C 03-2659 SI; C 03-2878 SI

CaseCa3s:0e33-:c0v3--0c2v6-0529659DoDcuomcuemnet n8t58556 FFilieledd05/237/200808PagPea4goef 45 of 5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18 II
19 II
20 II
21 II
22 II
23 II
24 II
25 II
26 II
27 II
28

Todd M. Schneider (SBN 158253) Guy B. Wallace (SBN 176151) Joshua Konecky (SBN 182897) SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: (415) 421-7100 Facsimile: (415) 421-7105
JOHN BURRIS (SBN 69888) 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) 225 Bush Street, 16th Floor San Francisco, CA 94104 Telephone: (415) 227-9622 Facsimile: (415) 227-4522
WAUKEEN Q. MCCOY (SBN 168228)
703 Market Street, Suite 1407 San Francisco, CA 94103 Telephone: (415) 675-7705 Facsimile: (415) 675-2530

-3-

STIPULATION AND [PROPOSED] ORDER APPROVING PAYMENTS TO CLASS MEMBERS
CASE NO. C 03-2659 SI; C 03-2878 SI

CaseCa3s:0e33-:c0v3--0c2v6-0529659DoDcuomcuemnet n8t58556 FFilieledd05/237/200808PagPea5goef 5 of 5

 
 CaseC3a:s0e33-:c0v3-0-c2v6-0529659DoDcuomcuemnet n7t27582 FFilieledd084/1059/027007PagPe1agoef 518of 58
Exhibit 1 Part 1

CaseC3a:s0e33-:c0v3-0-c2v6-0529659DoDcuomcuemnet n7t27582 FFilieledd084/1059/027007PagPe2agoef 528of 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, KALINI 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

[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

CaseC3a:s0e33-:c0v3-0-c2v6-0529659DoDcuomcuemnet n7t27582 FFilieledd084/1059/027007PagPe3agoef 538of 58

1 I.

INTRODUCTION.......................................................................................................................... 1

2 II. LITIGATION BACKGROUND .................................................................................................... 1

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 ........................................................................................................................... 10

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

e. 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

[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

CaseC3a:s0e33-:c0v3-0-c2v6-0529659DoDcuomcuemnet n7t27582 FFilieledd084/1059/027007PagPe4agoef 548of 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 PROCEDURESIRELATED ISSUES ................................................................. .23

6 XVI. GUARANTEED FAIR TREATMENT SYSTEM ..................................................................... .25

7 XVII. INTERNAL COMPLIANCEIMONITORING 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 [PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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1

L. Allocation Plan .................................................................................................................42

2

M. Distribution of the Monetary Awards ..............................................................................43

3

N. Allocation of Monetary Awards.......................................................................................44

4

O. 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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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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.} 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 of 2004, 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 } On March 19,2004, plaintiff Daniel Sherman voluntarily dismissed his claims without prejudice.

2
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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

7

While the class certification motion was pending, Defendant separately sought summary

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 of 2004 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 ofthe

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.

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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 October 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(f), and, on October 14,2005, sought a stay of the district

28

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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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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 April 2006, December 2006, February 2007, and March 2007. Under the supervision of the 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
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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 of FedEx Express' Western Region;
10 C. To use Best Efforts within the DGO and AGFS Divisions of FedEx 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
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1 v. FedEx Express C03-2878 SI, N. D. Cal.

2

F. "Claims Administrator" means Settlement Services, Inc. of Tallahassee, 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 Michael S. Davis; Schneider and Wallace; and Barry Goldstein, of counsel to

8 Goldstein, Demchak, Baller, Borgen & Dardarian.

9

1.

"Class Member Hourly Position" means any ofthe 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 CourierlDOT; CourierlHandler; CourierlHandlerlNon-DOT;

22 CourierlNon-Driver; Courier Feeder Agent DOT; Courier/Swing Driver/CDL; CourierlNon-DOT;

23 Courier Feeder Agent Non-DOT; CourierlHandler DOT/CDL; CourierIDOT/CDL; Courier Feeder

24 DOT/CDL; Courier/Ramp AgentINon-DOT; Courier/Ramp AgentlCDL; and Courier/Ramp

25 AgentIDOT.

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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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

O. "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 ofthis 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 of the time for filing of a direct appeal from the Court's approval of the 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 of the Consent Decree.

12

R. "Handler" inCludes HandlerlDOT; 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-maker(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 OperationslPrmIAGFS/CDL,

21 Manager Hub International Outbound Operations, Manager Station OperationslPrmlDOT/CDL,

22 Manager Ram Operations/AGFS PrmlCDL, Manager Regional Sort OperationslPrem, Manager Station

23 Operations/CDL, Manager Ramp Operations/CDL, Manager Dispatch Prem Loc, Manager Station

24 OperationslNon-DOTlPrem, Manager Station OperationslNon-DOT, Manager Ramp OperationslNon-

25 DOT, Manager Ramp OperationslPremiumlCDL, Manager BSClPremium Loc, Manager Station/Ramp

26 Operations/CDL, Manager Dispatch!AGT&T, Manager Hub Operations/non-DOT, Manager Station

27 Operations/CDLNol, Manager Station OperationslNon-DOTNol, Manager Retail Operations,

28 Manager Sort/Support Operations, Manager Station Operations/CDL.

9
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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 XVIILD on the

16 schedule set forth in Section XVIILC.

17

DD. "Service Agent" includes Service AgentIDOT; Service AgentINon-DOT; Senior

18 Service AgentIDOT; Senior Service Agent/non-DOT; Service AgentINon-DOT/non-IPP; and Senior

19 Service AgentINon-DOT/non-IPP.

20

EE. "Settlement Class" is defined in Section VII ofthe Decree.

21

FF. "Term ofthe Decree" means the period described in Section VI ofthe 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 subj ect 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
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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 of FedEx 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 of FedEx 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

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1

1. A Minority Employee Class of all Minority employees of the AGFS or DGO

2 Divisions of FedEx 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 of FedEx 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 of the 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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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 issuaI?-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.
21

Individual Claims of Class Representatives.

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, 98-100, 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

26

Nothing in the Decree shall be construed to bar any claims of members of the Settlement Class

27 or Plaintiffs that arise from conduct occurring after the Preliminary Approval Date.

28

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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 Filial 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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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 of the 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

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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 of this Decree; or sought andlor received monetary

15 andlor 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

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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 ofthe 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. If FedEx 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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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

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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 XVIlLe.

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

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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 andlor 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

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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 African16 American or Latino and white employees in the same job code, organization code, COMAT, time-in-

17 position, and length of FedEx 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 African28 Americans or Latinos, FedEx Express shall validate in accordance with the Uniform Guidelines the

21
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I
Ii .

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1 subjective portions ofthe 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

XlV. 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 GLCC 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 GLCC, 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

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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) ofthe

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 ofthe 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 PROCEDURESIRELATED ISSUES

19

1. FedEx Express shall maintain and enforce Policy 5-5 Guaranteed Fair Treatment

20 ProcedurelEEO 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

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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 hereofto 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

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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 COMPLIANCEIMONITORING 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 Human 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 ofthe 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

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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 Counselor 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 of FedEx 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 ofthe

26 Decree or as required by state or federal law, whichever is longer:

27

28

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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.

10

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

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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.
16

Contents of the Progress Reports.

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.

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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 XVA.

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, XIVA, 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.

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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 Counselor 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 Counselor 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 of the 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;

i

i

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 Counselor FedEx

27 Express to take post-settlement discovery as provided by the Federal Rules of Civil Procedure, but 28

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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 Counselor

3 FedEx Express to present the dispute upon a factual record adequate for a fair determination of the

4 Issue;

5

e. Ifthe 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 Counselor 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 Counselor 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 ofthe

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 Counselor 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 andlor 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 Chief Executive Officer of FedEx 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 ofhislher 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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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 XXILA.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 XXIILB 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 XXIILA 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 (10th) 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

(10th) business day after Preliminary Approval and the date FedEx

16

Express wire transfers incremental payments to the Settlement Fund 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

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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 DeclarantlDeponents as Service Awards as set

6 forth in Section XXILB.l.

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.l 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 XXIILB.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, XXILA.2.c and XXILA.2.d to
19
the Settlement Fund Account and in Section XXII.B.2 to Class Counsel as provided in Section 20
21 XXIILB.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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1 pay any fees or costs to Class Counselor 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.
10

Distribution of Settlement Fund. 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 DeclarantJDeponent. A list of these individuals is contained in

16 Appendix F. This liquidated amount will compensate the Class Representatives and 17 DeclarantJDeponents in consideration for the time and effort expended in these proceedings. Payment

18 ofthese 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

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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 ("NCaA")

9 system. Within 40 days ofthe 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 NCaA. 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, bye-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 ofthe 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, ofthe monetary relief provisions ofthe

28

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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 Opt15
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

20

The parties recognize that some class members who initially submit Opt-out statements seeking

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

24 out statement shall include the following language:

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

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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

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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.

10

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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

CaseC3a:s0e33-:c0v3-0-c2v6-5092659DoDcuomcuemnte7n2t7582 FFilieledd048/0195/200707PagPea4g6eo4f 658of 58

1 documentation is provided. Claim payments shall be made payable to the estate ofthe 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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

CaseC3a:s0e33-:c0v3-0-c2v6-5092659DoDcuomcuemnte7n2t7582 FFilieledd048/0195/200707PagPea4g7eo4f 758of 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 Counselor 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 Counselor 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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

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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$I,OOO.OO 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 XXILL, 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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

CaseC3a:s0e33-:c0v3-0-c2v6-5092659DoDcuomcuemnte7n2t7582 FFilieledd048/0195/200707PagPea4g9eo4f 958of 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 o. 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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

CaseC3a:s0e33-:c0v3-0-c2v6-5092659DoDcuomcuemnte7n2t7582 FFilieledd048/0195/200707PagPea5g0eo5f 058of 58

1 Q. Report from Claims Administrator.

2

Within thirty days ofthe distribution of the 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
8
9 A.

XXIII. PAYMENT OF FEES AND COSTS TO SPECIAL MASTER, MONITORING COUNSEL AND CLASS COUNSEL
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 of the 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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

CaseC3a:s0e33-:c0v3-0-c2v6-5092659DoDcuomcuemnte7n2t7582 FFilieledd048/0195/200707PagPea5g1eo5f 158of 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 XXILA.2.d.

11

4. Once FedEx Express makes the payments sets forth in Section XXIILB.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

CaseC3a:s0e33-:c0v3-0-c2v6-5092659DoDcuomcuemnte7n2t7582 FFilieledd048/0195/200707PagPea5g2eo5f 258of 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 DeclarantlDeponents and Settlement Class pursuant to Section XXII.B.1 and XXII.B.2 to Class

9 Counsel pursuant to Section XXII1.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 1. 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

.: C03-2659 SI; C 03-2878 SI

CaseC3a:s0e33-:c0v3-0-c2v6-5092659DoDcuomcuemnte7n2t7582 FFilieledd048/0195/200707PagPea5g3eo5f 358of 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, 16th Floor

17

San Francisco, CA 94104

18

Telephone: (415) 227-9622 Facsimile: (415) 227-4522

19 20

B~~

Kay McKen e Parker

21

22

Attorneys for the Plaintiffs

23

24

25

26

27

28

49
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 Sl; C 03-2878 Sl

CaseC3a:s0e33-:c0v3-0-c2v6-5092659DZIMoDMcEuoRMmcAuNemnREteED7n2tP7L58LP2 FFFailxieled1d-601248-/3014195-0/20B074407PagPeAa5prg4e6o5f2045078oOfB5:58Bam P002/002

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. Dennody (SBN 171716) Daniel E. Barenbaum (SBN 209261) LlEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
By:--~/~~~--------------~-
John L. Burris SBN 69888) LAW OFFICES OF JOHN 1. 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 Sl; C 03-2878 Sl

04/06/07 04/0612007

FRI 1C5a:s3e6C3aF:sA0eX33-:c0v3-0-c2v6-5092659DoDcuomcuemnCte7nh2te7r58yl2 AmFFailineleadd048/0195/200707PagPea5g5eo5f 58of 58

13:%2 FAX 4153628064

ALTSliULER BERZON

/at 002

I4i 002

/

1 2 3 4 S 6
1 8
9 10 11
12
13 14
lS
16 17 18 19 20 21·
22
23 Datecl: April
24 25
26
27 28

.,2007

Kelly M. Dermody (SBN 171716) Daniel E. Barenbauni (SBN 209261) LIEFF:o CABRASER,HEIMANN &
BERNSTElN~ UP 275 BatreIy ~ 301h Floor SlID Francisco" CA 94111·3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
By:._ _ _ _~_ _- -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
John L. Burris (SBN 69gS8) LAW OmCES OF JOHN L. BURRIS
7677 Oakport ~ Suite 1120 Oak1~ CA 94612 Telephone: (510) 839-5200 ext. 67 Facsimile; (510) 839-3882

Todd M. Schncic:lc:r (SBN 158253)

Guy B. Wallace (SBN 116151)

Joshua Konedcy (SBN 182897)

SCHNEIDER It WALLACE

180 Montgomecy Stree~ Suite 2000

San Francisco, CA 94104

.

Telephone: (415) 421-1100

~a.csimile: (41S) 421·7105

_ B~. __________________________

Michael S. Davis (SBN 160045)
LAW OFFICES OF MICHAEL S. DAVIS
345 Hill Street SaD. Franci5c», CA Telephone: (41~ 282-4315 Facsi:arlle: (415) 358..5576
_ B~. ______________________________
48

CaseC3a:s0e33-:c0v3-0-c2v6-5092659DoDcuomcuemnte7n2t7582 FFilieledd048/0195/200707PagPea5g6eo5f 658of 58

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
By:_ _ _ _ _ _ _ _ _ _ _ _ __
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
Todd M. Schneider (SBN 158253) GuyB. Wallace (SBN 176151) Joshua Konecky (SBN 182897) SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: (415) 421-7100 Facsimile: 415) 421-7105
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 SI

CaseC3a:s0e33-:c0v3-0-c2v6-5092659DoDcuomcuemnte7n2t7582 FFilieledd048/0195/200707PagPea5g7eo5f 758of 58

et . 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~---
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 81; C 03-2878 S[

CaseC3a:s0e33-:c0v3-0-c2v6-5092659DoDcuomcuemnte7n2t7582 FFilieledd048/0195/200707PagPea5g8eo5f 858of 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

(1 , \. ,~.

11

~ _=_ __=____:=___===_~ _=__ Signed:__ _

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
[PROPOSED] CONSENT DECREE - CASE NO.: C03-2659 SI; C 03-2878 SI

CasCea3s:e033:-0c3v--c0v2-60529659 DDocoucmumenetn7t72862-1 FiFleilded0048/0/195/2/00707 PagPea1geof15o4f 54
Exhibit 1 Part 2

CasCea3s:e033:-0c3v--c0v2-60529659 DDocoucmumenetn7t72862-1 FiFleilded0048/0/195/2/00707 PagPea2geof25o4f 54
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

CasCea3s:e033:-0c3v--c0v2-60529659 DDocoucmumenetn7t72862-1 FiFleilded0048/0/195/2/00707 PagPea3geof35o4f 54
Appendix A

CasCea3s:e033:-0c3v--c0v2-60529659 DDocoucmumenetn7t72862-1 FiFleilded0048/0/195/2/00707 PagPea4geof45o4f 54

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
BILAIBlLLlNGS. MT GTFRDIWOLF POINT, MT BILRAlMllES CITY. MT BILDAIGLENDIVE. MT GTFAIGREAT FALLS, MT GTFRlGREAT FAlLS, MT GTFRlGREAT FAllS, MT GTFRDIBROWNING, MT GTFRAlLEWJSTOVVN, MT GTFRB1HAVRE, MT HLNNHELENA, MT BlMSIBUTIE, MT BTMNBUTIE,MT BZNAlBELGRADE. MT MSDAlMlSSOULA. MT MSODNHAMILTON, MT
FCAAIKALISPELL, MT
ELPKlEL PASO, TX ELPIEL PASO, TX ELPRIEL PASO, TX UVANEL PASO, TX ELP/EL PASO, TX ELPRIEL PASO, TX ELPAlEL PASO, TX ELPKAfEL PASO, TX WHHAlARVADA, CO DENRT/AURORA, CO BJCAlENGLEWOOD, CO APACIGREENWOOD VILLAGE· APAHQIENGLEVVOOD. CO APAHQ/GREENWOOD V1LLAG APANENGLEWOOD, CO
APAVflVENGLE~O~CO
APAICENTENNIAL. CO BJCAlLlmETON. CO BKFAIDENVER, CO BKFClDENVER, CO DENAIDENVER, CO DENRIDENVER, CO DENMXlOENVER,CO FNLNBOULDER. CO SBSAISTEAMBOAT SPRINGS SaSAlSTEAMBOAT SPRINGS EGEAlSILVERTHORNE, CO FTCClFORT COLUNS, CO FTCBlFORT COLLINS. CO GXYNGREELEY, CO DENRAISTERLING, CO DENRB/LIMON, CO
Page I

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Listing of Relevant Comats

Carnat

Comat Description

.,

809160000

COSRlCOLORADO SPRINGS,

809190000

COSSDICOlORADO SPRINGS

809190001

COSA/COLORAOO SPRINGS,

810080000

PUBAIPUEBLO, CO

810520000

PUBRCIlAMAR,CO

810820000

PUBRBlTRINIOAD, CO

811010000

PUBRAlAlAMOSA, CO

811470000

ORODNPAGOSA SPRINGS,

812010000

PUBRO/SALIDA, CO

812300000

MTJDAlGUNN1SON, CO

813010000

DROAIDURANGO. CO

814010000

MTJAIMONTROSE, CO

815060000

GJTAlGRAND JUNCTION, C

815060002

GJTRlGRAND JUNCTION, C

816210000 816310000

ASEAlBASALT, CO
GWSAlEAGLE, co

820010000

CYSNCHEYENNE, W(

820700000

CYSONLARAMIE, W'(

824140000

RIWDNCOOY, W'(

825010000

R1WNRNERTON, WY

826010000

CPRAICASPER, W'(

826040000

CPRRlCASPER, WY

627180000

GCCNGILLETIE, W'(

628010000

SHRNSHERIDAN, WV

829010000

RKSAIROCK SPRINGS, Wf

829310000

SLCRElEVANSTON. w(

829410000

RKSDAIPINEDALE. W(

830010000

JACNJACKSON HOLE, WV

831270000

JACDAfTHAYNE, Wf

832010000

PIHAIPOCATELLO,IO

832260000

1000BlCHAlUS, 10

832540000

PIHONMONTPEUER, ID

833010000

TWFAITWIN FALLS, 10

833330000

SUNAlHAlLEY,IO

834020000

10M/IDAHO FALLS, 10

834670000

IDADAISALMON. 10

835010001

LWSAILEWISTON, 10

835300000

LWSRAIGRANGEVILLE, 10

836060000

BOIDBICALDWELL, 10

836380000

BOIDC/MC CALL, 10

836470000

BOIDAIMOUNTAIN HOME, I

837050000

BOIVMXlBOISE, 10

837050001

BOIAIBOISI;, 10

838140000

COEAlCOEUR D'ALENE, ID

8~150000

COENCOEUR D'ALENE. 10

840320000

SLCRBlHEBER CITY, UT

840470000

BTFHOIMIDVALE, UT

840570000

PVUAlOREM, UT

840780000

SLCRAIVERNAL. UT

Page 2

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-
Usting of Relevant Comats

Comat

Comat Description

841010000

SLCCISALT LAKE CITY, U

841040000

SLCRT/SALT LAKE CITY,

841170000

BTFKlSAlT lAKE CllY, U

841190000

BTFAIWEST VALLEY CITY,

841220000

SLCAlSAlT LAKE CllY, U

841220002

SLCRISALT LAKE CITY, U

843210000

LGUDAILOGAN, UT

844050000

OGDAlOGDEN, UT

845010000

PVURCIPRICE, UT

845320000

CNYAIMOAB, UT

846480000

PVUDBJNEPHI, UT

847010000

PVURBJRICHFIELD, UT

847200000

CDCNCEDAR CITY, UT

847410000

SGUDBIKANAB,UT

847700000

SGUAIST GEORGE, UT

850180000

ZSYA1PHOENJX. AZ

650310000

LUFAIPHOENIX, AZ..

650340000

PHXRCJPHOENIX, AZ..

850340001

PHXRlPHOENlX. AZ..

850340002

PHXlPHOENlX, AZ..

850430001

PHXlPHOENIX, AZ

,852040000

MSCHOIMESA, AZ

852540000

SCFB/SCOnSOALE, AZ..

852570000

SCF/SCOlTSDALE, AZ

852810000

DGLAITEMPE, A{.

852810001

PHXAlTEMPE, AZ.

852810003

DGlAfTEMPE, AZ

852820000

MSCBlTEMPE, AZ

852820001

MSCHQfTEMPE, AZ.

852840000

MSCAITEMPE, AZ.

853640000

YUMAlYUMA. AZ

855410000

PAYRD/PAYSON. AZ.

855460000

AVWDO/SAFFORD, AZ..

856350000

AVWAISIERRA VISTA, AZ

857060000

TUSAITUCSON, AZ

857060001

TUSRITUCSON, AZ.

857140000

TUSAITUCSON, AZ

857140001

TUSNTUCSON. AZ.

859010000

PHXRB/SHOW LOW, AZ

860010000

FLGAIFLAGSTAFF.AZ

863140000

PRCAlPRESCOTTVALlEY,

863220000

FlGDAlCAMP VERDE, AZ.

864010000

LHURAIKINGMAN, AZ

864030000

LHUAILAKE HAVASU CITY,

864290000

IFPAlBUUHEAD CITY, AZ

871060000

ABQRJALBUQUERQUE. NM

871060001

AB~ALBUQUERQUE,NM

871070000

ABQAlALBUQUERQUE,NM

871070001

ABaNALBUQUERQUE,NM

i' i

Page 3

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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 FMNNFARMINGTON, NM FUN/FARMINGTON, NM
SAFAlSAtrrA FE, NM SAFNSANTA FE. NM
LRUNLAS CRUCES, NM VGTAINORTH LAS VEGAS, VGTDAITONOPAH, NV LASRT/LAS VEGAS, NV LASNLAS VEGAS, NV SLCD/ELY. NV RNODC/FALLON, NV RNONSPARKS, WI
RNOO~NNEMUCCA.NV
CSNDAISTATELlNE, NY
RNORJRENO, NV RNOMXIRENO, NV RNOA/RENO, NV CSN/CARSON CIlY, NV
EKONELKO, NV
SPQAJLOS ANGELES, CA SPQHT/LOS ANGELES, CA SPQC/LOS ANGELES, CA SPOc/LOS ANGELES, CA EMTMOS ANGELES, CA EMTOILOS ANGELES, CA
EMTBJlOS ANGELES, CA
EMTHQILOS ANGELES, CA EMTIEL MONTE, CA (DELETED) SMOBILOS ANGELES, CA CVRDIHOLLYWOOD, CA CCDA/CULVER CITY, CA CCOTAlLOS ANGELES, CA CCDKlLOS ANGELES, CA CVRNHOLLYWOOD, CA EMTJ/CITY OF COMMERCE, HHRBJLOS ANGelES. CA HHRBlLOS ANGElES, CA LAXRIILOS ANGELES, CA LAXMXfLOS ANGELES, CA lAXACJlOS ANGELES. CA lAXMGlLOS ANGELES, CA LAXWSClLQS ANGELES, CA lAXILOS ANGELES, CA
LAXTRlLOS ANGELES, CA
LAXPERILOS ANGELES, CA lAXILOS ANGELES,CA lAXSRTILOS ANGELES, CA LAXlLOS ANGELES, CA
Page 4

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Listing of Relevant Comats

Comat
9004SOOGl?
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
906060001
908060002
910160000 911010000 911010001 911070000 912030000
913020000 913030000 913210000

Cornat Description
LAXlLOS ANGELES, CA LAXVP/LOS ANGELES, CA LAXSST/LOS ANGELES, CA CCDs/LOS ANGaES, CA JGXNLOS ANGaES, CA CCDClLOS ANGELES, CA CeDE/LOS ANGELES, CA CVRClLOS ANGELES, CA CVRBIWEST HOLLYWOOD, C EMTElLOS ANGELES, CA EMTIILOS ANGELES, CA EMTH/LOS ANGELES, CA EMTFILOS ANGELES, CA EMTClLOS ANGELES, CA CCDD/BEVERLY HILLS, CA CCDHlBEVERLY HILLS, CA LAXRT/COMPTON, CA CCDlCULVER CITY, CA SMOF/CULVER CITY, CA JDYKAlDOWNEV, CA HHRNELSEGUNDO,CA
HHRC~LSEGUNDO,CA
LAXRClEL SEGUNDO. CA LAXBClEL SEGUNDO, CA TOANGAROENA, CA
HHRNHA~HORNE,CA
SMONMARINA DEL REV, C LAXRP/INGLEWOOD, CA LAXRTRNGLEWOOD, CA (DELETED) SMOCISANTA MONICA, CA SMOTA/SANTA MONICA. CA TOAcrrORRANCE, CA JDYAIWHITTIER. CA JDYBfLA PALMA, CA
JDYNSANTA FE SPRINGS,
TOATe/CARSON. CA TOAAlGARDENA, CA LGBBlLONG BEACH, CA LGBAIlONG BEACH, CA LGBEILONG BEACH, CA LGBRlLONG BEACH, CA JGX~ONROVlA, CA JGXCIPASADENA, CA JGXKAlPASADENA, CA JGXTDIPASADENA, CA JGXBlGLENDALE, CA JSNBfCALABASAS. CA JSNAfCANOGA PARK, CA VNYTAINEWHALL. CA
PageS

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Wsting of Relevant Comats

Comat
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 BURA/SUN VALLEY, CA BURB/SUN VALlEY, CA VNYBIVALENCIA, CA SFRCJWESTLAKE VILlAGE, SFRBMOODLANO HILLS, C VNYIWAN NUYS, CA VNYKNAN NUYS, CA VNYCiENCINO, CA BURKIBURBANK, CA BURB/BURBANK, CA BURCIBURBANK, CA BURKNSTUDIO CITY, CA BURHOIUNIVERSAl CITY, ONTIBICORONA, CA POCBlEL MONTE, CA POCTAICITY OF INDUSTRY POCAlCllY OF INDUSTRY, ONTAIONTARIO, CA ONTIA/ONTARIO, CA ONTRT/ONTARIO, CA ONTRIONTARIO, CA ONTCIONTARIO, CA CLDTAICARLSBAD,CA CLDAICARLSBAD, CA CLDHCVCARLSBAD,CA MYFO/EL CAJON. CA ClDKlENCINITAS, CA ClDKAlESCONOIDO, CA MYFClLA JOLLA, CA CLOB/OCEANSlDE, CA ClDAlSAN MARCOS, CA SANA/SAN DIEGO. CA SANC/SAN DIEGO. CA SOMA/SAN DIEGO. CA SOMSISAN DIEGO, CA MYFBlSAN DIEGO, CA MYFKlSAN 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 CLDHQlSAN DIEGO, CA CLOrC/RANCHO BERNARDO, SOMB/SAN DIEGO, CA
Page 6

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Listing of Relevant Comats

Comat
921730000 922250000 922510001 922620000 923760000 923920000 924080000 925900000 926120000 92;5140000 926140001 92;5140002 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

Cornat Description
SDMBlOTAY MESA, CA LHURBIBLYTHE, CA IPL.AIIMPERIAL, CA PSPAfPALM SPRINGS, CA RIVAIRIALTO, CA DAGAN1CTORVlLLE, CA RIVBISAN BERNARDINO, C HMTAITEMECULA, CA APVNlRVJNE, CA APVHQIIRVINE, CA SNABIIRvtNE, CA APVKI1RVINE, CA NZJAlIRVINE, CA APVF/IRVINE, CA FULTAfBREA, CA NUC/COSTA MESA, CA NUCEICOSTA MESA, CA APVBlEl TORO, CA FULAIFULLERTON,CA LGBBlGARDEN GROVE, CA LGBClGARDEN GROVE, CA JLBKlHUNTINGTON BEACH, NUCHQlHUNTINGTON BEACH JLBAlHUNTINGTON BEACH, APVD/LAGUNA HILLS. CA NUCCINEWPORT BEACH. CA NUCD/NEWPORT BEACH, CA NUCHQlNEWPORT BEACH~C APVElSAN JUAN CAPISTRA SNAGlTUSTlN, CA NZJAlRANCHO SANTA MARG SNAAISANTA ANA, CA SNARISANTA ANA, CA APVAIIRVINE, CA APVFIIRVINE, CA FULBIANAHEIM, CA FULRCIFULLERTON, CA OXRAlOXNARD, CA SFRKlSIMI VALLEY, CA SBAKISANTA BARBARA, CA SBMlGOLETA, CA BFLDAILAKEISABELLA,C VJSANISALIA, CA BFLAlBAKERSFIELD, CA SBPNSAN LUIS OBISPO. SMXRAlPASO ROBLES, CA SMXNSANTA MARlA, CA fYKDAfBISHOP, CA WJFAlLANCASTER, CA
Page 7

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Listing of Relevant Comats

Camat
935500000 935550001 936120000 937270000 937270001 939400000 940100000 940250000 940250001 940400000 940630000 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
PMO/PALMDALE, CA IYKAlRIDGECREST, CA FATNCLOVlS, CA FATAIFRESNO, CA FATRT/FRESNO, CA
MRY~ONTEREY,CA
salc/BURLINGAME, CA PAOAIMENLO PARK, CA PAOAIMENLO PARK, CA COAD/MOUNTAIN VIEW, CA PAOD/REDWOOD CITY, CA SaLA/SOUTH SAN FRANCIS SQLLSISOUTH SAN FRANCI SaLA/SOUTH SAN FRANCIS COAfVSUNNYVALE,CA COABISUNNYVALE, CA
COAJVSUNNYVAL~CA
CO~UNNYVALE,CA
SFOISAN FRANCISCO, CA SFO/SAN FRANCISCO, CA SFOAISAN FRANCISCO, CA NOB/SAN FRANCISCO, CA $FOMISAN FRANCISCO, CA JCCAISAN FRANCISCO, CA APCISAN FRANCISCO, CA JCCBlSAN FRANCISCO, CA SFOGfSAN FRANCISCO, CA SFOO/SAN FRANCISCO, CA NOBI/SAN FRANCISCO, CA NDBBlSAN FRANCISCO. CA SFOUSAN FRANCISCO, CA SFQC/SAN FRANCISCO, CA SFOJISAN FRANCISCO, CA APCAISAN FRANCISCO, CA SFOKISAN FRANCISCO, CA SFOAISAN FRANCISCO, CA SFOR/SAN FRANCISCO, CA JMCBAlSAN FRANCISCO, C PAOGIPALO AtTO, CA PAOBIPALO ALTO, CA SOLF/FOSTER CITY. CA SQLHQIFOSTER CITY, CA SOLHQ/FOSTER CITY, CA CCR/CONCORD, CA (DELETED) RHVTBfFAIRFIELD. CA HWDCfFREMONT, CA HWOBlHAYWARO, CA JCEAniAYVVARD,CA CCRAIPACHECO,CA
PageS

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Usting of Relevant Comats

Comal
945680000
945770000
945770001
945830000 945630001
945870000
945870001 945880000 945880001 945880002 945960001 946030000 946030001 946030002 946080000 946080001 946080002 946120000 946210000 946210001 946210002 946210003 948210004 946210005
946210006
946210007 946210008 949010000 949010001 949390000 949540000 950140000
950500000
950600001 950500002
950500003 950500004
950540001 950730000 951100000 951100001
951130000
951310000
951310001
951310002
952050000
952060000 952220000
953400000

Comat Description
lVKAlDUBlIN, CA OAKRT/SAN LEANDRO. CA OAKSC/SAN LEANDRO, CA lVKHQ/SAN RAMON. CA lVKHQ/SAN RAMON, CA HWDAIUNION CITY, CA HWDAIUNION CITY, CA LVKD/PLEASANTON, CA LVKBClPLEASANTON, CA LVKNPLEASANTON,CA CCRBNVALNUT CREEK, CA OAKRT/OAKLAND, CA OAKRSJOAKLAND. CA OAKRT/oAKLAND, CA JEMElEMERYVlLLE, CA JEMAIEMERWILLE, CA JEMElEMERYVlLLE, CA OAKBlOAKLAND, CA OAKNOAKLAND, CA OAKHQ/OAKLAND, CA OAKH/OAKlAND, CA OAKH/OAKLAND, CA OAKRIOAKLAND, CA OAKIP/OAKlAND, CA OAKREIOAKLAND, CA OAKREIOAKLAND. CA OAKNOAKLAND, CA SRFAISAN RAFAEl, CA
SRFAISAN RAFAEL, CA
SRFBILARKSPUR, CA NOTAIPETALUMA, CA COACICUPERTINO. CA SJCC/SANTA CLARA, CA SJCAfSANTA CLARA, CA SJCRT/SANTA CLARA, CA SJCRT/SANTA CLARA, CA SJCAlSANTA CLARA. CA COAEISANTA CLARA, CA SRUAfSOQUEl, CA SJCH/SAN JOSE, CA SJCR/SAN JOSE, CA SJCGlSAN JOSE, CA RHVAlSAN JOSE, CA SJCBAfSAN JOSE, CA RHVAlSAN JOSE, CA SCKAlSTOCKTON, CA SCKAlSTOCKTON, CA SCKRAfANGELS CAMP, CA MCEAlMERCED, CA
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Listing of Relevant Comats

Comat
953510000 953510001 953700000 954030000 954820000 955010001 955310000 956280000 956700000 956780000
957650000
958140000
958140001 958150000
958150001 958150002 958260000
·958260002
958370000 958370001 958380000
958380001
959260001 959450000 959910000 960020000 960020001
960200000
960670000 960930000 960970000 961010000 961300000 961600000 967200000 967320000 967320001 967400000 . 967610000
967660000 968190000 968190001 968190002 968250000
970050000
970310000
970620000
971030000
971380000

Cornat Description
MODAIMODESTO, CA MODAIMODESTO, CA MODRA/SONORA. CA STSAISANTA ROSA, CA UKiNUKIAH. CA EKAAIEUREKA, CA CECNCRESCENT CITY, CA MHRBlFAIR OAKS, CA MHRAlRANCHO CORDOVA, C AUNNROCKLlN, CA AUNAIROCKLlN,CA SMFBJSACRAMENTO, CA
SMFRT~ENTO,CA
SMFRCfSACRAMENTO, CA SMFfSACRAMENTO. CA
SMF~SACRAMENTO,CA
MHR~SAC~ENTO,CA
MHRHCUSACRAMENTO,CA SMFSSACRAMENTO,CA SMF/SACRAMENTO, CA SMFNSACRAMENTO,CA SMFD/SACRAMENTO,CA CICA/CHICO, CA OVEAlGRASS VALLEY, CA MYVNYUBA CITY, CA RDDNREDDING, CA RDDBIREDDING, CA CICRA/CHESTER, CA RODONMOUNT SHASTA, CA RDDAlWEAVERVILLE, CA RDDDAlYREKA, CA RDDD/ALTURAS, CA RNODAlSUSANVllLE, CA RNODBffRUCKEE. CA ITOAfHILO, HI OGGNKAHULUI, HI JHMNKAHULUI, HI KOAAlKAILUA KONA, HI JHMDNLAHAINA, HI LlH/LlHUE, HI HNLAlHONOLULU, HI HIKNHONOLULU, HI HNLRlHONOLULU, HI HNLRC/HONOLULU, HI HIOBIBEAVERTON, OR PDXDNHOOD RIVER, OR BNONTUALATlN, OR MRIDBJASTORIA, OR MRIDAISEASIDE, OR
Page 10

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Listing of Relevant Comats

Comat
972040000 972040001 972170000 972170002 972180000 972180001 972180002
972230000
973020000
973330000
973650000 973670000 974020000 974390000 974590000 974700000
974770000
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 982230000 982260000
982330000
982450000 982500000 983620000

Cornat Description
PDXBlPORTLAND, OR PDXCIPORTLAND. OR MRINPORTLAND, OR MRIBIPORnAND. OR PDXAlPORTLAND. OR LOGAIPORTLAND, OR PDXRlPORTLAND. OR HIOAITJGARD, OR SLENSALEM, OR CVOAlCORVAlLIS. OR CVODBINEWPORT. OR SLEDAILINCOLN CIlY, OR EUGAIEUGENE, OR
EUGD~LORENCE,OR
OTHDNNORTH BEND. OR RBGNROSEBURG, OR EUGAISPRINGFIELD. OR MFRAIMEDFORD, OR LMT/KLt>.MATH FALLS, OR RDMNBEND, OR RDMRAlBURNS, OR PDTNPENDLETON,OR RDMRB/JOHN DAY, OR PDTOAIlA GRANDE, OR BVUHQ/BELlEVUE, WA BVUClBEUEVUE, WA BVUHOlBELlEVUE, WA BVUTNBELLEVUE. WA BVUNBELlEVUE, WA PAENBOTHaL, WA BVUAnSSAQUAH,WA SEAAlKENT, WA BABISEATILE, WA LKEKAlSEATTlE, WA BFID/SEATILE, WA BFIC/SEATILE, WA BFIAISEATILE, WA BFISJSEATTLE, WA BFINSEAmE, WA BFIKISEATILE, WA LKEAlSEATILE, WA SEARISEATILE, WA SEARTISEAffiE, WA PAEDAIARLINGTON, WA BllA/BElLINGHAM, WA ODWNBURUNGTON,WA
FHR~TSOUND.WA
FHRDAIFRIDAY HARBOR, W ClMNPORT ANGELES, WA
Pagell

CasCea3s:e033:-0c3v--c0v2-60529659 DDocoucmumenetn7t72862-1 FiFleilded0048/0/195/2/00707 PagPea1g5e o1f55o4f 54

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
995nOOOO
996030000 996110000 996150000 996540000 996640000 996860000 997010000 998010000 998350000 999010000

Comat Description
PWTNPORT ORCHARD, WA TCMAIT'ACOMA. WA OLMA/OLYMPlA, WA OLMRC/ABERDEEN, WA LOGDAlLONGVlEW, WA EATNEAST WENATCHEE, W MIMiIMOSES lAKE, WA OMKAlOMAK, WA YKMAlYAKlMA, WA GEGRBICOLVIlLE, WA LWSDBlPULLMAN, WA GEGNSPOKANE, WA GEGRISPOKANE. WA GEGRJSPOKANE, WA PSCNPASCO, WA ANCHH/ANCHORAGE, AK ANCAIANCHORAGE, AK
ANCH~ANCHORAGE,AK
ANCFT/ANCHORAGE,AK ANCIP/ANCHORAGE, AJ< ANCRT/ANCHORAGE, AK BMXlEAGLE RIVER, AK HOMAlHOMER, AI< ENAAIKENAI, AK ADQAlKOOIAK, AK WNAAlWASILlA, AK SWOA/SSNARD, AK VDZNVALDEZ, AK FAINFAIRBANKS, AK JNUAfJUNEAU, AK JNUDCISITKA, AK JNUDCIKETCHIKAN. AK

Source: Data provided by FedEx Express.

Page 12

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Appendix B

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The People Manual

25 June 2006

4-15 Career Opportunity 187

Policy Scope

4-15 Career Opportunity
(Last Revised 24 July 2005)
FedEx Express provides career development opportunities to its employees by systematically informing them about position openings 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 POLlCY~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.

Affirmative 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 Department. All employee groups working under a member of management who reports directly to

Purposes of this Policy) a Corporate officer. This definition applies unless the senior division head, with the approval of the

matrix Human Resources managing director, defines the term differently.

Lateral Transfers. Movementfrom 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 available, notification is sent to the officers and managing directors of the Corporation. These officers and managing directors normally have 10 calendar days to submit candidate recommendations in writing 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 Career 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 Manua/ for additional information.

Posting Requirements

All replacemer:lts, additions, and new permanent positions must be posted on the Career Opportunities Posting unless local posting is avthorized 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.

PeopieManual06- 207

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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 department, 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.

Local Department/Station 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 repost or recruit internally/externally. Position is filled in accordance with 1-6 Leave of Absence (Medical)-Exempt/Nonexempt Salaried or 1-8 Leave of Absence (Medicall--Merit Hourly in support of the Human Capital Management Program (HCMP). The chief exerutive 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:
Actual 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 III, Treasury Agent IV). A divisional staffing agreement has been approved to upgrade the status of part-time employees to full-time in the same jol;> 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.

PeopleManual06- 208

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Appendix C

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Slilfth
L~", 'Peih·Hsw~
1\.,"1__.1\ H~~ t&ft~
'~·.l""
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'Ulli~ ~
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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 FedEx 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 .Hno recording" rule. Failure to adhere may be considered insubordination as outlined below.
Workplace Vjolence
ViQlent or threatening behavior is not tolerated in the workplace. All employees are responsible for advising management, the FedEx Express Security Oepartmen~ Human Resources, or People Help of any actual or potentially
serious or violent situations as stated in the Wor~pl~Ul1olence guideline of sso .s~j;.Y.f.i.tY.

Misconduct

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.. --0- - _ ........
FedEx Express requires a high degree of personal Integrity and responsibility of its employees. Violations of Compa~y 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 ali-inclusive.
• Conviction of, or a plea of -no contesf 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 10 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 functionslCompany 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

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• 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 Information 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 andlor 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 l.Q:-6.5 S.QI~l~!Jon_\l_Dg Pi.$t~'jb.trtjQ!l
• 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 any violation of the Acceptable Conduct policy could potentially result in termination of employment. an employee normally will be dismissed upon completion of an investigation confinning violations related to
. ··'r--r--·

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• 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 fireanns or other dangerous weapons on Company property. as specified in 8-10 EireannslWeapons.
1'1. Tennination 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 folW3rded 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
<.J termination for drugs or alcohol should proceed
directly to Step 2.
• Violation of the Confidentialibf: guideline for the survey questionnaire as specified in 5-70 Survey/Feedback/Action (SEA) Program.
InvestigativelDisciplinary 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 1.0. 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 Disciplin;uyJ~m;pensiQ.!l section below and in the Wa.mjng L'-tt~.rl R~current PaJw.rl1~ guideline.
r& The Matrix HR Manager and Legal must be V 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 ~nvestigative 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

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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 should enter the information into the Online Documented Compliment/Counseling (Olec) 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 managementJa
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 aleC screen even if no separate written memo or synopsis of the discussion was prepared by the manager.
r&. Documented counselings are ineligible for the <...J GFTP process because they are not disciplinary
in nature. (See S.:,5.(;.Q.aJ:'~I)~~~t:! F.~ir..Tr:e~tment
Er.oce~urQ.te.E.QJ:om..R.laint erQ~'-§.§.)
A documented counselingfOLCC entry Is not disciplinary in nature. but It may be considered as a factor when determining whether discipline (i.e. warning lelterj 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.
Waming Letterl Recurrent Patterns
.rI. 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.Q~J'!J)1'-.!!tiljp.n guideline and Figure 1, Sample Warning Letter. Warning letters serve as a notification of behavioral deficiency, and are active in PRISM and prohibit JCAlJCATS 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 $pends on a leave of absence.) Disciplinary Suspensions may be given when appropriate and must be outlined in a warning letter. See ImLQ..~il~j.Kip.1ina.JY­ SU~~Jl~lQ..l)..$. 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 2-5 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.

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r&. When an emproyee receives a second deficiency V notification within 12 months (e.g., a waming 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.
rI. A Decision Day is only initiated when the second V notification qualifies as a perfonnance reminder.
(See 2-SO Perfonnance 1mQr.Q.'l@~nt.)
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 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.
The receipt of three notifications of deficiency within a 12-month period normally
results in termination. However, an employee's entire employment history should be reviewed. Based on the severity of the occurrence an employee may
be terminated with less than three notifications of deficiency within a 12-month
period. Management should consider the relative nature of all infractions for disciplinary purposes.
TermInation Option exercised Failure to correct behavioral deficiencies will result in termination by the Company. Management is responsible for reviewing an employee's disciplinary record and exercising judgment in determining appropriate action.
Discharge Approval
Two levels of management and a matrix Human Resources staff member must
approve all terminations based on misconduct when the individual holds a managing director or below position. For positions above managing director, the
matrix Human Resources managing director should be consulted.
Termination Letters
REFER TO 4-90 Termination, Termination Letter
guideline.
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 permanently in a department/station file. An information copy must be sent to
the matrix Human Resources manager.
Documentation
Management should completely document all actions taken by management related to misconduct. All notifications of deficiency (I.e., warning letters and diSCiplinary suspension documents) should contain Information such as
• date of infraction
• facts supporting the suspension, warning letter, reminder, andfor

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- - ....

termination

• policy violated

• the warning letter must contain a reference to the employee's privilege to pursue the procedure in 5-5 G-'IJl{llo.t~~ Fair.Ir~a~_nt
E!r~J.l~/eEOC.ompj1l1Dt_PrQe..es.s

Verification/Retention of Disciplinary Notifications
An employee's signature confirms receipt of any disciplinary letter. When an employee 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

.

• fOlWard a copy tathe 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 Driving 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 jobrelatedness 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 police 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

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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 DeterminationIProcedure
The crlme's classification (Le., 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-case basis.
Ta.b.Ie..1. outlines 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 clearly 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 charges against the employee or the acquisition of additional information that will allow management to make a final decision. (See I~J)l~L1..)
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 18 months of the original charge, the status of the criminal proceeding will be reviewed by the manager, Human 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 Indlcted 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 1.lm~.$tig~_tlv_~Q!,"!;.iP.lin!m'...s~~msI.o.n~ guideline.)
3. With Security, Human Resources, and Legal departments, conducts investigation.

a. If the conduct involved is determined to not be jObrelated, returns employee to work.
b. If conduct Is determined to be job-related and it is not
known if the employee engaged in the conduc~ suspends

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Management

employee without pay pending resolution or more Information.
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.

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 an<! 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 5-5 G.!!.i!~~meed....Eair n.,.atm~mt
em(:..!tdw.:ele:~g.lIllllilll1tfrQCess.
Related Policies
• 1-5 Medical Absence Pay-Exempt and Nonexempt Salaried and Step

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Progression • 1-6 Leave of Absence (Medicall=£xemptiNonexempt Salaried and
Step Progression • 1-7 Medical Absence Pay-Merit Hourly • 1~ Leave of Absence (MedicalHerit Hourly • 1-20 Attendance
• 145 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 Improveme.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 Flrearms/Weapons • 8-30 Identification of Personnei
• 8-90 Vehicle Accidents/Occurrences
• 1P-$5 SolicitatIon and Distributio.u Related Publication
• The Profit Manual

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• The Safety Manual • The Information Security Standards

WARNING: This site contains Information and procedures applicable only to employees of Federal
Express Corporation (FedEx ElCPress). Employees of

~arch Onnne Library c..~gg.)LIjQ.ro.§_ ReVision Highlights. Contents Pub Info

other affiliated FedEx companies should refer to the

sites applicable to their respective affiliated company.

T012 I Pr~~ I Next

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A product of HR Measurement and Support. Your feedback is welcOme.

QQJMi.Qb1 ~ 1981-2007. Federal Express Corporation
unpublished. All rights reserved. ISO 9001 control/ed document. Contents subject to change.
Printed 8I1d other stalic representatiOns of this data are classified
"for reference only.•

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Appendix D

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The People Manual (USA)

Chapters

.;.'---.

'-2-50 Performance Improvemenr-4

(Last Revised 01 April 2007) .

Policy
FedEx 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:formance 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..!ld"Y.(!.1 for additional
information regarding infractions considered to be misconduct and alternative management actions.

Mutual Responsibility

Management Responsibilities Management is responsible for

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counseling, a witness (another member of managemen~ 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.
i&. Documented counsellings are ineligible for the GFTP <...J process because they are not disciplinary in
nature. (See 5-fj Guaranteed Fair Treatment
er9~e.d'yfJ#LI;-E.Q.C.Q.mp-.'~.!nt r:'.ro.~$..)
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., tools; equipmen~ scheduling, presaibed methods).
• Consult with the employee to determine if any recent 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 wor!<group
• 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.
r&. Although it is not required, managers are urged to V consult with their matrix Human Resources staff
before taking action, particularly in unusual

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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 PRI.SM .Entri~$. .and Ve.dficaliQ.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 counseling/OLeC 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

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..."-- -.--...~- ,-----". - - - - --_.
Management is expected to review thoroughly the circumstances surrounding any incident to detennine 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 ptan is required, management must ensure that the action plan is developed and documented jointly by the manager and employee. See Figure 2. The action plan should address all actions related to an
employee's performance problems. Once 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 complaint process as documented in ~~(i.Gu.a.mnt~~d fair
Ir~;Atm.QJlt. Pro.~.d.u.re.I.e.e..O .c..Qmp,!~jo.tP.r.QC~$$.
• see Figure 2 for a sample Performance Reminder with Action Plan
i I . All disciplinary actions should be initiated within V seven calendar days ofthe completion otthe,
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)lJCATS submissions tor 6 months from the date of Issue. Impact on Job Change Applications Active reminders do not automatically prohibit an employee from submitting a

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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 FadEx 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!r.o..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 Performance Review
If an employee has active formal discipline (warning letter or performance reminder) on file at the time of his performance review completion, this disclpl1ne 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-satlsfactory rating in any category may serve as the basis for a performance reminder and may require an agreed-upon action plan.
rI. When a performance review qualifies as a reminder, <...J 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&. V

Issuance of a that has been

paedrdforermssaendceprreevmioiunsdleyrthforrouagdhef2i.C~.ie.oncy

••~~ 11!1.

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Performance fmPLQvemeni 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 offwith 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 e~ployee's lack of improvement since the previous reminder and explaining the purpose and consequences of the decision day.
ra: Decision days may be initiated after two deficiency
<.J notifications, but only when the last notification
qualified as a performance reminder.

Table 1
Decision Daiy Conditions

Type of DefiCiency Notification
Performance Reminder Warning Letter Performance Reminder
Warning Letter

Type of Deficiency Notification
Performance Reminder Performance Reminder
Warning 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 the 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 the Company must present a written personal performance agre.ement 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

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!'&. 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 Calendar days and should be completed as soon as possible. The employee normally should be informed of the decision within seven calendar days of the completion 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.

rI. 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.
Termination Option Exercised

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Failure to correct performance problems will result in either tenninatlon 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 problems. 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 Human 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 ~.~5..G_y.a~ntee.d Fair r~atment Pr:ocedure/EEO
C.9rop.lilimJ~.r.Q~tel$...
Related Policies
• 1-5 Medical Absence Pay==-Exempt and Nonexempt Salaried and Step Progression
• 1-20 Attenda nee
,
"
I

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• 1-45 Leave of Absence (Family) • 1-50 Leave of Absence (Military) • 1-55 Leave of Absence (Pe[§QnaJ)
• 2-10 Alcohol and Drug-Free Workplace • 2·55 performance Review (Individual progress Discussion)
• 4-48 Qriving Qualifications
• 4-90 Termination
• 8-85 Unsafe ActslWorker Injuries • 8-90 Vehicle Accidents/Occurrences

WARNING: This site contains infonnalion and procedures applicabl& only 10 employees of Federal Express Corporation (FedEx Express). Employees of other affiliated FedEx companies should refer to the
sitas applicable to their respective affilfated company.

.s~~J:.C!J Online Library Feq~ Hom~ Revision Highlights Contents Pub Info
IQQI Prevl~

Search Thfil People Manual (USA):

§]

A product of HR Measurement and Support Your feedback is welcome.

CD.JwjgIl1@1981-2007, Federal Express Corporation unpublished. AU rights reserved.
ISO 9001 c.ontrolled document. Contents subject to change.
Printed and other static representations ofthis data ate classilied "for reference only."

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Appendix E

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{ .

FedEx Express (USA)

Personnel Policy and Procedure Manual

June 2006

Publication Number 5524

Before the next complete revision of this publication, information may be updated through bulletins, e-mail,

or other FedEx Express media. 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 howto 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

PeopleManual06- 5

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The People Manual (USA)
Chapters
. . 5-5 Guaranteed Fair Treatment Procedure/EEO Complaint Process"
(Last Revised 01 April 2007)
Policy
FedEx 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.

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.r&. W1len an employee adds an allegation of V discrimination or sexual harassment after entering
the GFTP process, the GFTP is deferred until allegations of employment discrimination are resolved. The steps outlined in Iibl~ 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 I'-b.~-.-1. Step 2 is the final step for discipline resulting from an EEO investigation.
!'&. Employees terminated for drug, alcohol, falsification
<..J of the employment application 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. r&. Employees are permitted to utilize the GFTP process V for resolution regarding work assignments that are
presumed to be unsafe or where no training has

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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 FedEX 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.bJ.!3 '.)
That division's chain of command should be followed throughout the process.
Benefits Related GFTP/EEO Process
When a GFT Is flied 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 I'.bJ~.1J The steps in the GFTP process for non-discrimination issues are:

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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

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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 sale discretion of the
senior vice presidentJvice 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 presidentMce president or the Appeals Board•
.r&. Discrimination and sexual harassment allegations V 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.

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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 rorwarded 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 tl1e 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 performed by specific individuals. See T.iJ.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 andlor 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.

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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 Communlcationsl Documents
All internal documents, including E-mails, investigative notes and materials generated in the course of the GFTPIEEO process, including without limitation, internal EEO and harassment investigations are confidential and subject to various legal privileges against disclosure. Circulation, distribution, or discussion of this information is strictly limited to those who have a need to know 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. Attomeys or other such representatives are directed to contact the Legal Department No third party is permitted to participate in any manner in the GFTPfEEO 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

CasCea3s:e033:-0c3v--c0v2-60529659 DDocoucmumenetn7t72862-1 FiFleilded0048/0/195/2/00707 PagPea5g0e o5f05o4f 54
• 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.

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other affiliated FedEx companieS should refer to the sites applicable to their respec6ve affifiated company.

@ I prev I ~.~~

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~ c 1981-2007, Federal Express Corporation
unpubrlSbed. All rights reserved. ISO 9001 controlled document. Contents subject to change. Printed and other static representations ofthis dsts are claSSified
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CasCea3s:e033:-0c3v--c0v2-60529659 DDocoucmumenetn7t72862-1 FiFleilded0048/0/195/2/00707 PagPea5g1e o5f15o4f 54
Appendix F

CasCea3s:e033:-0c3v--c0v2-60529659 DDocoucmumenetn7t72862-1 FiFleilded0048/0/195/2/00707 PagPea5g2e o5f25o4f 54 Satchell v. Federal Express
Appendix F - Class Members Receiving a Service Award
Sheila Akins Virgil Banks Yolanda Cane1a Bonta P. Clarke Eric Foreman Maurice Griffin Janet Haynes Eric 1. Hill Brett Hoiland Ingrid James Zeno Latin Venturi McCray Sr Mitchell McCoy Rose Moncrief Antonio Norris Rosalinda Olmos Beverly Patterson Mimi Steel

CasCea3s:e033:-0c3v--c0v2-60529659 DDocoucmumenetn7t72862-1 FiFleilded0048/0/195/2/00707 PagPea5g3e o5f35o4f 54
Appendix G
I
i .
...•.
j~ :.'

CasCea3s:e033:-0c3v--c0v2-60529659 DDocoucmumenetn7t72862-1 FiFleilded0048/0/195/2/00707 PagPea5g4e o5f45o4f 54 Satchell v. Federal Express
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. Dennody - $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 W.aukeen 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

.

 
 Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 1 of 14

FEDERAL EXPRESS CORPORATION Frederick L. Douglas (Admitted Pro Hac Vice) 2 David A. Billions (Admitted Pro Hac Vice) Sandra C. Isom (SBN 157374) 3 Cynthia J. Collins (Admitted Pro Hac Vice) Barak J. Babcock (Admitted Pro Hac Vice) 4 David S. Wilson (SBN 174185)
3620 Hacks Cross Road
5 Building B, 3rd Floor Memphis, Teuuessee 38125-8800
6 Telephone; 901.434.8519 Facsimile: 901.434.9271
7 SEYFARTH SHAWLLP
8 Gilmore F. Diekmann, Jr. (SBN 050400) Patricia H. Cullison (SBN 101636)
9 Francis J. Ortman, III (SBN 213202)
560 Mission Street, Suite 3100 10 San Francisco, California 94105
Telephone; 415.397.2823 11 Facsimile: 415.397.8549

12 Attorneys for Defendant FEDERAL EXPRESS CORPORATION,
13 dba FEDEX EXPRESS (errnneously sued herein as FedEx Corporation, dba FedEx Express)
14

15

UNITED STATES DISTRICT COURT

16

IN AND FOR THE NORTHERN DISTRICT OF CALIFORNJA

17 EDWARD ALVARADO, JOHN AZZAM, )

CHARLOTIE BOSWELL, TANDA BROWN, )

18 BERTHA DUENAS, PERNELL EVANS, )

CHARLES GIBBS, JANICE LEWIS, MARlA )

19 MUNOZ, KEVJN NEELY, LORE PAOGOFJE,)

DYRONN THEODORE, LASONIA

)

20 WALKER, and CHRISTOPHER

)

WILKERSON,

)

21

)

l II " ......""P~I~ai"'n"'tiff/~C:.:o=.un:::t~er~c"I"':;:·m~D;,;ee;fenITda=n;:;t,'--_)
22 GARY WHITE, and ALEX RIVERA,

Case No. C04-0098 SI Case No. C04-0099 SI
DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION FOR DECLARATORY RELIEF
Date: Febru~ I, 2008
Time; 9;00 a.m.

23 II'l'7KAT't7y-P;ilp'aii'nARtKEi~fifi/iCR;.o;;u,~nM~tIeCiriciHl'ai'iAmE~L;DD;;e;AfieTVn~IdS;a;:n,;tA,N""'G'FEL1"TA)»

l 24 ALIOTO, ANGELA ALIOTO

25

PROFESSIONAL LAW CORP., and BRUCE

FU}ij(,

)

Judge;

Hon. Susan lllston

26 27 v.

Counterclaim Plaintiff,

l
)

28 IIII~F~ED~E~X~C~O~RP~O~RA~T~IO~N~,~a~D~e~la~w~~~e,--____)

Defendant's Reply in Support of Its Motion for Declaratory Relief, Case Nos. C04-0098 SI and C04-OO99 SJ

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 2 of 14

I Corporation, db. FEDEX EXPRESS

)

2

l Defendant/Counterclaim

Plaintiff.

)

3

4

TABLE OF CONTENTS

5

A. Preliminary statements ................................................................................. 1

6

B. FedEx is entitled to the relief sought because Parker failed to

7

offer any factual evidence in support of her extraordinary position ............2

8

C. The argument Parker is not bound by the settlement agreements is void oflogic and reasoning! and not supported by the cases cited in her

9

Opposition................................................................................................... .3

10

D. Contrary to Parker's Opposition interpleader does in fact require her to relinquish her right to statutory or quantum meruit fees recovery".............5

11

E. Parker's position tmdennines public policy................................................ .8

12

F. Parker does not have standing to pursue an award for fees for work

13

performed on behalfofthe Setllemenl Plaintiffs .......................................10

14

G. Conclusion ................................................................................................. 11

15

16

17

TABLE OF AUTHORITIES

18 CASES:

PAGE:

19 AETNA Life Insurance Co. v. Bayona, 223. F.3d 1030, 1034 (9th Cir. 2000) .....................6
20 Anderson v. Eaton, 211 Cal. 113, 116 (1930) ................................................................. 9.10
21 Earl Scheib, Inc. v. Superior Court (1967) 253 CaI.App.2d 703, 706 ................................9
22 Flatt v. Superior Court, 9 Cal.4th 275,289 (1994) .............................................................8
23 24 Great American Insurance Co. v. Bank a/Bellevue, 366 F.2"' 289, 291 (SID Cir. 1966) .6,7
25 Solita Clara County Counsel Attys. Ass'n v. WoodSide, 7 CalAth 525, 548 (1994) .......9,10

26 Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 571 .................................................9

27 Yom v. Superior Court, 90 CaI.AppJd 669,675 (1979).............................................8,9,10

28
Defendant's Reply in Support of Its M-otion f{lT i)e(:\aralory Relief, Case Nos. C04"(){)98 SI and C04-OO99 SI

ii

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 3 of 14

1 STATUTESIRULESIREGULATIONS:
2 Fed. R. Civ. Proc. 22 ...................................................................................................... 6,7
3

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 Defendant's Reply in Support oflf1; Motion for Declaratory Relief, Case Nos. C04.o09S Sl and C04..o099 SI

iii

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 4 of 14

1

Defendant, Federal Express Corporation, files this reply in support of its Motion for

2 Declaratory Relief (Doc. No. 976), herein referred to as "Motion for Relief," in response to Kay

3 McKenzie Parker's Opposition to Defendant's Motion for Declaratory Relief (Doc. No. 999),

4 herein referred to as "Opposition."
5

6

A. Preliminary statement.

7

Through smoke and mirrors Parker attempts to convince this Court to view the issues

8 raised in FedEx's Motion for Relief as complicated, and warrOllting either a deferral to the

9 Special Master or denial of the relief sought. To view this dispute as complicated one must be
10 steadfastly fixed on ignoring simple undisputed facts, debunking decades oflegal precedent, and 11
magically creating liabilities and recoveries so far removed from the intent of the civil rights
12
laws that only tenrunated lawyers benefit to the detriment of their clients. No one benefits from 13 14 Parker's position except Parker. Her position does not encourage lawyers to take on civil rights
15 cases but undermines the interest and will of the clients. Her Opposition is based on the

16 erroneous conclusion there is no difference between a judgment on the merits and a settlement,

17 and commitment to ignore decades of interpleader precedent while offering no legal precedent
18 for any of her erroneous assertions. As to public policy. not only is Parker undennining the
19 benefits settlements bring to the judiciary but intends to breach (with the authorization of this
20
Court) her fiduciary duty to her fanner clients by exposing them to indemnification claims by 21
22 FedEx.

23

The basis for FedEx's relief is simple-the parties settled and therefore apart from the

24 settlement agreements there is no additional relief or obligation owed by any party to their
25 current or tenninated counsel. After Parker was tenninatoo by the Settlement Plaintiffs they
26
recognized the risk and delay associated with trial and reached a settlement with FedEx without 27
the need for a trial. It goes without saying there is no judgment on the merits. All settlement
28
1 Defendant's Reply in Support OfTts Motion For Declaratory Relief, Case Nos. C04-0098 Sr and C04-0099 SI

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 5 of 14

funds were interpleaded to protect lienholders> including Parker. Along comes a terminated

2 lawyer, not satisfied with $1,499,000 of interpleaded funds, as well as the $358,183 in funds she

3 received in the Satchell litigation, seeks to obtain the interpleaded funds, pretends there is a

4 judgment on the merits against FedEx in favor of Settlement Plaintiffs, ignores interpleader law~
5

and intends to assert a new lawsuit against FedEx.
6

7

The facts, law, reasoning and common sense dictate that the Motion for Relief be granted

8 in its entirety. It is now time for the madness to stop.1

9

B. FedEx is entitled to the relief sought because Parker failed to offer any

factual evidence in support of her extraordinary position.
10

11

Parker's Opposition failed to establish any factual basis for the extraordinary claim she is

12 entitled to obtain relief through the interpleader process, and directly against the released party

13 (pedEx) with whom her former clients settled. The Opposition provides no factual testimony

14 supporting her position.

15 Based on the factual record, this Court should grant the relief requested by FedEx
16 because:
17

18

1. There has been no trial on the merits;

19

2. There has been no judgment issued by this Court (page 3 of the Opposition

concedes "[n]o entry ofjudgment has yet issued conceming these [settlement]

20

plaintiffs' cases");

21

3. There is no basis for this Court to issue a judgment on the merits given that there

22

has been no trial on the merits, and Settlement Plaintiffs VOluntarily and intentionally settled their claims;

23
4. The Settlement Plaintiffs intended that they would be responsible for

24

compensating their attorneys, including Parker because paragraph 8 of the

settlement agreements states that "each party will bear its own costs, including
25 ______a~tt~o~m~ey~'~s~fi~e=es. arising from this action" (emphasis added); and

26
1 It should be noted that Davis, like Parker is a former attomey for the Settlement Plaintiff.,>, who notified the Court

27 ofbis decision not to oppose the Motion for ReHef. Doc. No. 998. This non~opposition speaks volumes as to just
how troublesome Parker's positions are in this matter.

28

2

Defendant'S Reply In Support Of Its Motion For Declaratory Relief,

Case Nos. C'04~0098 Sl and C04~0099 SI

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 6 of 14

I

5. The Settlement Plaintiffs warranted that they had authority to enter the Settlement

2

Agreements (paragraph 18), and the Settlement Plaintiffs are subject to legal

3

action (including an action for indemnification) if their warrant was unreliable.

4

As to points 4 and 5 above. but for a settlement reached by her former clients, Parker

5 would have no interpleader claim to the settlement proceeds. Therefore, given that Parker~s

6 interest to the interpleaded settlement funds only arises out of her client's negotiated settlement,
7 Parker is bound by the settlements, and any subsequent action against FedEx subjects her clients 8
to liability, Interestingly, Parker provided no declaration testimony that the intent of the 9
Settlement Plaintiffs was any different than what was contained in the settlement agreements or 10
11 FedEx's moving papers. Therefore, she cannot undermine the benefit of the settlements reached

12 by her former clients.

13

c. The argument Parker is not bound by the settlement agreements is void

14

of logic and reasoning, and not supported by the cases cited in her Opposition.

15 All of Parker's multi-approach theories uoderlying her claim of not being bound by the
16
settlement agreoroents must fail based on the facts aod the law. 2 17

18

Parker's erroneous claim she is not bound by the settlement agreements because she has

19 received no "benefit" from the negotiated settlement (Opposition, p. 5) is not only wreng but

20 void of any logic. The "benefit" received by Parker is that she is now eligible to participate in an

21 interpleader action whereby she is entitled to some of the $1,499 million in settlement funds.
22 But for the settlement she would not be entitled to the "benefit" of participating in the
23
interpleader action and partaking of the $1.499 million. But for the settlement Parker would
24 have to wait for trial, and asswnmg her fonner clients prevailed on the merits, she has standing,
25

26
2 By addrc.ssing these arguments FeciEx does not concede that any of them are legitimate and based on applicable
27 law. FedEx only addresses Parker's arguments to illustrate how !hey are fundamentally flawed and meritless.

28

3

Defendant's Reply In Support OfIts Motion For Declaratory Relief.

Case Nos. C04~0098 SI and C04..{1099 SI

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 7 of 14

and the verdict is upheld by the Ninth Circuit, she must then pursue those fees post-trial. The

2 settlement reached by her former clients alleviates the uncertainty and risks associated with trial.
3 There is a "benefit" to Parker. It is by reason of the settlement agreements that Parker is
4 anticipating recovering fees first from the interpleader actions, and thereafter, through a second
5 meritless action against FedEx. Therefore, her argument of not receiving any ''benefit'' is
6
7 baseless.

8

Second, even assuming arguendo that Parker received no benefit, the interpleader process

9 specifically reserves 40% of the amounts received by way of settlement as called for in the
10 Engagement for Legal Services and Addendum No, 1 to the Attorney Representation Agreement
11 that Parker entered with each of the Settlement Plaintiffs,' As a result, even though Parker did
12
not participate in the settlement negotiations, her right to "40% of any amounts received or 13 14 recovered by way of settlement~' is protected because the entire amount of the settlement
15 proceeds was illte!pleaded, not just 40%, The further "benefit" Parker roceives from the

16 settlement is that 40% of the settlement funds are reserved in the interpleader action,

17

FinallYl Parker's Opposition is not only flawed in its reasoning as discussed above but is

18 also void of legal support, The five (5) judicial opinions relied on for the proposition that she

19
cannot be bound by the settlement agreements entered into by the Settlement Plaintiffs, Wajjle 20
House, Lebow, Polo Ralph Lauren, Hess, Souza (See Opposition, pp, 4-5), have nothing to do 21

22 with circumstances where the clients intentionally enter into beneficial settlement agreements,

23

24

25 3 Those contracts provide for the disposition of attorneys' fees: "We have agreed to the following attorney fee
arrangement, , , 40% of any amounts received or recovered by way of settlement after ... mediation, .." T1teyalso
26 provide for "a lien on any and all .. , settlements. ' , that are the subject of my representation under this agreement."
Doc. No. 932, Parker Ded ~ 3. Parker claims such agreements were signed by all Plaintiffs and what she attached
27 is "an exemplar of the fonn agreement that was signed by all Plaintiffs[.]" Parker Decl, 1I3(a),

28

4

Defendant's Reply In Support afIts Motion For Declaratory Relief,

Case Nos, C04~0098 SI and C04~OO99 SI

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 8 of 14

I release all claims, the released party interpleads the proceeds of the settlement~ and the

2 tenninated attorney seeks fees from the released party'
3
The cases cited by Parker are inapposite because they arise out of enforceability of
4 arbitration provisions under the Federal Arbitration Act (Waffle House); pertain to a licensing
5 agreement and subsequent claims of unfair competition, breach of contract and trademark
6
7 infringement (Lebow); discuss what recourse if any the owner of goods lost at sea has against the

8 carner when the owner of the goods is not a named party to the bill of lading (Polo Ralph

9 Lauren); focus on obtaining a judgment, offer of compromise under California Civil Procedure

10 and mutual mistake (Hess); and are limited to landowners leasing fannland to tenants and

11 delinquent water charges assessed to the land (Souza).

12

For the reasons articulated above FedEx is entitled to the relief requested. 13

14

D. Contrary to Parker's Opposition interpleader does in fact require her to
relinquish her right to statutory or quantum meruit fees recovery.

15 Parker's position that "FedEx has not established that Ms. Parker's claims against FedEx
16 are limited by law to her share of this $1,499,000 fund" ignores fundamental interpleader law,
17

18 misinterprets interpleader cases, and assumes with no legal support that interpleader law carves

19 out exceptions for California statutes and common Jaw,

20

Parker is forced to state the obvious: "FedEx is COlTeet that interpleader may be

21 appropriate in order to 'resolve in one proceeding all claim to a res," the "res in question here is

22 the [settlement] sum," and "FedEx may have earned its burden to establish that entitlement to
23 this res is contested between plaintiffs, their counsel, and lienholders including Ms. Parker."
24
25 Therefore, by operation of law, Parker's claims against FedEx are limited to her share of the

26 11 ---------------
4The absence ofjudicial opinions on point further highlights the extraordinary and confOlmding nature of Parker's

27 claims. No court has addressed the type of claims asserted by Parker because her claims debunk decades uflegal
precedent, among other things,

28

5

Defendant's Reply In Support OfIts Motion For Declaratory Relief.

Case Nos, C04--0098 SI and C04~OO99 SI

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 9 of 14

I settlement funds. Parker~s Opposition cites to no judicial authority for the proposition that she is

2 entitled to pursue a separate action against the party interpleading funds under either California

3 state law or common law, Since the filing of the interpleading action on November 15, 2007
4 Parker has had an opportunity to provide case law interpreting Fed, R, Civ, p, 22 in support of
5 her position. No cases are cited for the extraordinary relief she is requesting--participating in the
6
7 interpleader process and allowed to pursue a separate action.

8

Parker's erroneous reliance on Great American for the proposition that her claims against

9 FedEx are not limited by law to her share of the settlement funds is misguided (Opposition, p, 6),

10 and the Ninth Circuit's decision is AETNA Life Insurance Co, v, Bayana, 223 F,3d 1030, 1034
11 (9th CiT. 2000) is directly contrary to Parker's position, 12
In Great American Insurance Co, v, Bank ojBelll?VUe, 366 F.2,d 289, 291 (8th Cir, 1966), 13 14 there were two separate properties (bonds), but one "was not mentioned in the interpleader
15 complaint nor in any of plaintiffs supporting papers," Id, The court allowed the defendants to

16 obtain relief outside the interpleader process because in a swom affidavit the plaintiff issued a

17 false statement denying the existence of the additional bond, It was the concern over possible
18 fraud and failure to disclose the property that compelled the court to grant the extraordinary 19
relief -litigation outside of the interpleader action. Id. at 294. In this case involving FedEx, all 20
parties admit there is but one property --- the settlement funds.s Therefore, Parkerl s reliance on 21 22 Great American is misplaced because as to FedEx all the property (settlement fonds) has been
23 disclosed, there is no additional property, and there is no fraud on this Court justifYing a separate

24 action.

25

26 5 There are no additional agreements or properties due the Settlement Plaintiffs. See Motion for Relief, pp. 1~2; 27 Declaration of Frederick 1. Douglas, , 6.

28

6

Defendant's Reply In Support Oflts Motion For Declaratory Relief.

Ca~e Nos, C04~0098 SI and C04-0099 SI

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 10 of 14

1

The Ninth Circuit's decision in Bayona renders Parkees argument that "FedEx has not

2 established that Ms. Parker's claims against FedEx are limited by law to her share of this
3 $1,499,000" meaningless. In Bayona the deceased's insurance policy (through her employer)
4 called for are disbursement of 85% of insurance proceeds to her sister and 15% to her husband.
5 6 The husband informed the insurance company he would, seek 50%, and in response the insurance 7 company filed an interpleader action. The husband answered the interpleader action and filed a
8 separate claim against the insurance company, employer and benefits pJan. The insurance

9 company filed a motion to dismiss the claim. The district court dismissed the separate claim, and

10 the Ninth Circuit affirmed, because "interpleader's primary purpose is not to compensate, but
11 rather to protect stakeholders from multiple liability as weIl as from the expense of multiple
12 litigation." Bayona, 223 F.3d at 1034 (emphasis added).
13 Parker pronouncement that she intends to "proceed with her independent claims for
14
15 attorney's fees that would be filed after the entry of judgment" (Response, p. I) is expressly

16 rejected by the Ninth Circuit in Bayona because the interpleader process is to protect FedEx from

17 "multiple liability as well as from the expense of multiple litigation.,,6 Therefore, given the
18 Ninth Circuitls ruling in Bayona of precluding ''multiple litigation," FedEx is entitled to the
19 reliefrequested as mandated by Fed R. Civ. P. 22.
20 Parker's Opposition concedes FedEx is entitled to full interpleader relief. Parker
21 22 correctly notes that "[ulnder the system established by [Rule] 22, interpleader is permissible
23 when 'more than a single obligation is owed, and the possibility of a double recovery justified by

24 law is very real.'" Opposition, p, 6. The number of lienholders demonstrates that certainly more

25 than "a single obligation is owed." Is there a possibility of a double recovery? Parker concedes

26
6 Parker is not without any reli"f OJ;' options because she can sue her fOlmer clients and their current counsel. Any

27

compensation owed to Parker beyond her share in the interpleaded funds must come from the Settlement Plaintiffs, and their current cOWlSel, who may have benefited from her work.

28

7

Defendant's Reply In Support Gflts Motion For Declaratory Relief,

Case Nos. C04~0098 SI and C04~OO99 Sl

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 11 of 14

as much given her threat to file a ree application after she partakes of the interpleaded funds.

2 Parker cannot have her proverbial cake and eat it to. Parker's participation in the interpleader
3 requires the relinquishment of her alleged right to statutory or quantum meruit fees recovery.
4
E. Parker's position undermines public policy. 5
Parker's assertion that PedEx "does not provide any support for [its] proposition [that 6 7 Parker's position undennines public policy that encourages litigants to voluntarily reach

8 settlement]" (Opposition, p. 9) is baseless. Assuming there is no dispute that the courts expect

9 and are served when parties voluntarily reach a settlementt it strains the imagination to believe

10 that heaping on employers the potential for fee claims by terminated attorneys after settlement

11 would not undermine or preclude voluntary settlements. FedEx did in fact articulate for this

12
Court how Parker's position undennines public policy: 13

Allowing lienholders to seek fees from PedEx after settlement

14

would be a tremendous deterrent against settlement. Parties

15

generally enter settlement to fully and finally resolve a dispute. A

defendant would be reluctant to enter settlement if it were subject

16

to ongoing claims and litigation by plaintiffs' lienholders.

Litigation with lienholders could extend well beyond the

17

conclusion of the litigation with the plaintiff. A defendant would

18

be subject to the ongoing risk that a lienholder would claim funds from the defendant after settlement was entered, For this reason,

19

Parker's argument cannot be justified,

20 See Motion for Relief, p. 6.

21

Finally, Parker is prevented from filing action against PedEx by virtue of the fiduciary

22 duties she owes to her fOImer clients.
23
An attorney owes an absolute and complete fidelity to his or her client Flatt v. Superior 24
Court, 9 Cal.4th 275, 289 (1994); Yom v. Superior Court, 90 Cal.App.3d 669, 675 (1979).
25

26

It is...an attorney's duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position

27

adverse or antagonistic to his client without the latter's free and

28 Defendant's Reply In Support OfIts Motion For Declaratory Relief.

8

Case Nos. C04~009S SI and C04~OO99 SI

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 12 of 14

I

intelligent consent ... By virtue of this rule an attorney is precluded

from assuming any relation which would prevent him from

2

devoting his entire energies to his client's interests.

3

Santa Clara County Counsel Attys. Ass'n v. Woodside, 7 Ca1.4th 525, 548 (1994) (internal

4 quotes omitted); Anderson v. Eaton, 211 Cal. 113, 116 (1930). A lawyer must represent tile
5 client's interests without being influenced by the lawyer's personal or financial interests or the
6
7 interests of other clients or third parties. fd.; Earl Scheib, Inc. v. Superior Court (1967) 253

8 Cal.App.2d 703, 706.

9

The fiduciary duty of loyalty continues after termination of the attorney-client

10 relationship. A lawyer may not act in a manner that will injure the fonner client with respect to

11 the matter involved in the prior representation (j,e., a lawyer cannot attack his or her prior work);
12 and cannot subsequently use information gained from the prior representation to the fonner
13 client!s disadvantage without the former client's infonned consent. Yom v, Superior Court, 90
14
15 Ca1.App.3d at 675; Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 571.

16

Here, by seek attorneys' fees from Fed Ex. Parker is causing a breach of the settlement

17 agreement that could be imputed to Parker's former clients. Under the settlement agreements.

18 "Releasing Party" includes by definition agents and attorneys. Paragraph 5 of the settlement
19 agreements state that the Releasing Party released all claims for monetary and equitable relief,
20 including attorneys' fees and/or costs. Paragraph 8 of the settlement agreements state that the
21 22 plaintiffs are responsible for compensating their attorneys. Under paragraph 18, the plaintiffs
23 warranted that they had authority to enter the settlement agreements.

24

Moreover, an action by Parker against FedEx would SUbject plaintiffs to an

25 indemnification action by FedEx. Paragraph 21 of the settlement agreements provides a
26

27

28

9

Defendant's Reply In Support Oflts Motion For Declaratory Relief,

Case Nos. C04~0098 Sl and C04~0099 SI

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 13 of 14

I contractual right to indemnification by FedEx against the plaintiffs in the event that litigation
2 continues.
3
Because Parker's action would cause the Settlement Plaintiffs to breach the settlement 4
agreements and subject them to an indemnification action, Parker's claims for fees against Fed
5
Ex constitute a breach of her fiduciary duty of loyalty. Parker's action against FedEx would 6
7 constitute a position antagonistic to the interests of her former clients and would also injure her
8 former clients with respect to the prior representation. See e,g. Santa Clara County Counsel

9 Atlys. Ass'n v. Woodside, 7 Ca1.4th at 548; Anderson v. Eaton, 211 Cal. at 116. Yarn v. Superior

10 Court. 90 Ca1.App.3d at 675.

11
F. Parker does not have standing to pursue an award for fees for work

12

performed on behalf of the Settlement Plaintiff•.

13

Referral ofFedEx's Motion for Relief to the Special Master is not an option.'

14

Parker has no standing and concedes this point. By not offering facts or law to the

15 contrary Parker concedes that the Settlement Plaintiffs did not prevail on the merits'
16
Furtherrnorcj Parker offers no evidence demonstrating how the work she performed benefitted 17

18
1911~-------------7 As clearly stated in its motion for interpleader relief (Doc. No. 955) and objection to Parker's conditional
20 agreement to the motion for interpleader (Doc. No. 964), the interpleader only pertains to seven plaintiffs, to the exclusion of Alvarado, Boswell and Evans who had their claims tried on the merits. There is no dispute that the
21 Settlement Plaintiffs are not prevailing parties on the merits of their claims. Furthermore, the Court's order
deferring the petitions for fees and sanctions motions arising out of the Alvarado, Boswell and Evans matters to the
22 Special Master was issued before resolution of the claims between FedEx and the Settlement Plaintiffs. The
Settlement Plaintiffs are not mentioned in the Court's order, and as stated herein the factual differences between the 23 two sets ofPlaintiffs are legally significant.

24 8 Parker's self interest in maxi:m:iz::ing fees fatally ignores the legal significance of the existence of two separate
groups of Plaintiffs one group had their clailllS tried and a judgment was issued on the merits, and the second,
25 voluntarily settled their claims. parker continues to cite to cases having nothing to do with the voluntary settlement
of cases. ('riven that Parker continues to ignore the difference between claims arising out of a judgment on the
26 merits, and public policy encouraging parties to voluntarily settle their cases, FedEx need not again restate its
summary of why the legal authority relied on by Parker is misplaced. See Objections t-O Conditional Agreement
27 (Doc. No. 964), pp. 7·9.

28

10

Defendant's Reply In Support Of Its Motion For Declaratory Relief,

CaSe Nos. C04~0098 Sf and C04~0099 Sl

Case 3:04-cv-00098-SI Document 1001 Filed 01/17/2008 Page 14 of 14

1 FedEx. Therefore, there is no basis for a quantum meruit action because FedEx, taking a

2 position opposite Parker's fonner clients, did not receive any benefits from Parker's work.

3 G. Conclusion.

4 FedEx requests the Court grant its Motion for Relief, and fees associated with its filing
5

and prosecution. 6

7

DATE: January 17,2008

FEDERAL EXPRESS CORPORATION

8

By lsi Frederick Douglas

9

Frederick L. Douglas Lead Couosel

10

11 l)Qc. NQ, 715020 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

Defendant's Reply In Support Oflts Motion For Declaratory Relief,

Case Nos. C04~0098 SI and C04~0099 SI

 
 ..... 1 2 3 4 5

Fi , .

4pJ - .4PI('1.

.'
-;

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---; FFOORR]TEH-IELNNOORRTT- HHEERRNN DDIISSTTRRIICCTF OOFF CCA\LLIFIFOORRNNIIAA

6

C('MHAR LI O.UTTTTEF BOUSWWEELLLL,.

7

P1laAinIntitlffff,—

8

v. 9

FEDEX COORRPPOORRAATTION,

10

111

DDeeffeennddaanntt..-
—

No. C 04-00099H8 SSI Related Caasse CC 0044--00009999 SSII SPE4.CIALL VERDICT
/

United State District Court
Fur the Nurtherri IJistrict ofCalifornia

12

WWree,,

tt—hhi ee

j!uuIryy

inn-

the

ahbornvee

entitled

-
acatiioonn,fifnin.ddththye-ffoolltloowwiiangg ffoorr

oouurr

sspecial

veerrddiicctt::

133

14
ii
1155 (1)) SSEXUAALLLLYYHHOOSSTTIILLEEWWOORRKKEENNVV-IRIROONL'LMEENINLTLS(SEEXXUUAALL HHAARASSMMEENNTT))
'p ..'.H 1166
I1?7 QuQeusetsiotino_nN1Noo. .11:: DDidid?IpalianitnftfifCf Chahralrolot-tteteBBoosswweellll pp-rovvee,, byy a prepoon'ddeerraannccee oofftthhee eevviiddeence,, tthait
d r - 18 NNo-to-mnITnTnanStSilt1eitseswwasashheerrssuuppeerrvviiss'ro,raaidfnl dtIt.haal thhe- essuIubbjjeecc- ttedL hheerr tco a.Ts'exuaFlly hhoossti'tlicek- wwoorkrkernivvriiSrOon]nmmeeinttaalt

199 FeFdedEExx, aassddefe inefdijfl~seeinin;tsrturuccttkio'nnss??

-

-' 20 I

Yes ______-

NNno _ ________-

. .. 6. ff 2211
2//2

IQIffIjuttehehsseettii.aoornnnsswNw.,neocer.r.trI10o,i;isQ.s "uyee-ess.st3ti,k"o1nnpllNNeeaaooss..ee1Ipriisosc"nenoeod,,'"tpoplelQeaausseees

-pprroocce,ed
tio( n N.oo..

22d/..irectly

to

Question

No .

6.

1If; thhreaannsswweetr tto

2l 3queQsuteiostnionNNo.o2.2: :DDididppllaaiinnttiiffffCChhaarrlootttteeBBoosswweellll pprrroovvee,, bbyy aa pprreeppo3nnddeerraanncceeoofftthhee eevviiddeennccee,, tthhaait aass aa

2N4resruehsuoltfosfesxeuxaulahlahraarsassmsmeneinbt ybyNNoormrmaannSSttiitteess,,sshhee suffereddaa ttaannggiibbllee eemmppllooyymmeenntt aaccttiioonn, aass ddeeffiinneedd iinn

2255 ththeessee instructions?/

26

inYYsetersus-cVtV-ion-s.--

Noo _ _ __

27 Iff the answeer ttoo QQuueessttiioonn NNo.2 iiss ""nnoo,,""pplleeaassee pprroocceeeed It:o0 QQuueestion NNoo..33. IIff tthhee aannsswweerr ttoo QQuueessttiioonn Noo..22 is "yes.," pplleeaassee pprroocceeeedd ddiirreeccttllyy ttoo QQuueessttiioonnMNco..5 .
28

J
\

United Stales District Court 1or North UI I)istric (,Ti lornEa

....

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6

fJJ QJ

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I; QOuuestion No.3.: DDiiddddeeffeeanrddaanntt FedEx pprroovvee,,bvyaa prepo- nd- eraanncceeooffhtheeeevvidideennccee.,1thatt FFerdriEPxxerxxerrciSsed(i

2

reasonaabbllee caarree ttoo preevent anndd promptlyy ccoorrrreecctttthhee ssexiwuIa1llyyhhaarraassssiinngg behavior?

3 II

y e · ____________

Noo -__-__-__-_-

dtou nJ q• 4 IlifththieeaannswweCrr tLtooi QuUIeesstitoien NNoo..33 sisn"on,o' ,n"lpelaesaesepproroecceeddddirireeccJtylyttooQQuueesti1c\.nflNoo-.. 55.. ifI1f1ththeeaannsswwer too
5 QQ1uueestisiiot'.niTNho..i3s iyse"sy,e"s,p" epalesaeseppiroocceeecd1toQQeusetitoio:n1N'oo.. 4.

6 II

QOuueessttiioonn_NNoo..44: : DDididddeeffSedndaannFt eFdedEExxprporovvee.,Inbya aprperpeopnonddeerraannccee ooffththee eevviiddeencee,, thhaatt ppllaaiinnttiifff

uic 9ivi' 7 unrnreoasa;ocan)ia-ubJlvly;iffai1tieledd ttioo: takeeaaddvvaa:n:tfaaggeeto.•fFaanry; preevveennttiiveeoorrccoorrreecCtl'i!vvee opportIiunnitietisespprorovvidideeddbbyyFFed EExx
88 o(•i,r Luiin:rIreecIasnuo.anabbly fIaileedd ttc oot-thheerrwwiise avoi-cdI .hiarmrn-??-

9

yYe,s) _ _ __ _

No0 _____ __________

1U0

lIfftthe answer to Quessttion No..4 is "nnoo,,""ppleleaasse proceddtotoQQuueesstiiooinNo0. .55. .IfItfhteheanansswweerrtotoQQuueestion

1111 No. 4 is y"yese,s","p'TpelsIeea•pseropcreoeceteodQtouC eQsuoenstNioon No. 6.

12

1133
(2)) CCOQNNSTRUCTIVE Dn[ISSCCHHARGE

14
qQuueesstiioonn NNoo. .55:-:—DDidiId-pplalIaini-n'ftLfiCfIfTIIC:ahhra!or:ltotetteBoBsowsweellllprporvoev.e,bbay parperpeopnodnedrearanncceeeocfththeeeevvidideennccee, thatt hI er
15

workingccoonnddiittiioonnsswweerreenmuaddeessooiinnttoolleerraabbllee bytthhee sexually hostilIe wonrk rennvvirinronnnmieennt ththaat taarreeaassonable

16

rpeersonniinppaliaiItni_tFisftfps o-pso-istiitoionn wocIudi!ld:IeffeecIlIc.oipmep'ieelldedtcto•) rxxe:s: iggnr?.

1177

y/ s ~

1188

No - - - - -

Pleeaasse/epprworc:c/e.eeeUd ttoo QQuueesst:1iloonn Noo. .6.. 1199

2200 I

2/1 I

22 {(,3)) RREETT½AULIAATTiIOONN
Questioonn NNoo..66;:DDididppIulaiinnttfifffCChhaarlr.1ol-otteteBBoosswweelpl rporvoev,eb, ybya-aprpie:rpejpo'onnddeerarannLcI cee0o1ftt;heeeevviildeei'nccee,ththaattsshhee
23
244 eennggaagegdeidn aacctitvviittiiees pprrootteecctteed junnddeerrfefeddeeraral Ilalwaw, S, sUuCcbh as• oLpoposiinggsseexxuuaallaaddvvaarIn.Icccess,, rreeqquueests tfootrSseexNuauli

ccoonnductt oorr otthheer vveerbal oorr pphhyyssiical cconduct offaa seexxuaalnnaature?

2255 226 fi

YYeess _- _-_-=~ _--__-_-_

NNoo_- _-__-__-_-_

27I,

IliIfllthhaenasnwswerertotoQQt'ueessotinonNNoo.6.6'sis"n"on'op,"lepalesaesegLgooddirLreecc:tliy;yotoQQuu(1ce,stion No..9.Ifltfiteh1!eanasnwswerertotoQQuueessttionHi
No0,.6 iiss y"yeess,,p"leplaesaesepprorocceeeedd ttoo Quessttiioonr NOo. 7.

28

22

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Inited States District Court
rue North rn 0 strjc (a] forrua

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1I -QQujsetsitoionnNNoo. .77::DDididplpalianintitfifffCC,h4haIdrLlo1tteeBBoowswee1Illpprroovve, bbiy, a pprreeppoonnddeerraannccee ooff tthhee eevviiddeennccee,, tthhaatt

2 dedteifiednadnatnFt eFdeEdExxsusubbjejcecteteddpplalainintitfiffttooaann aadverse employment actioonn,, aass ddeeftined in theessee iinnssttrruuccttiioonnss??

V 3

Yeess -__-_-__-_-_

NNoo -__-_-__-_-_

7 4-: 1INiI.f.otth.h.7e-7e,.aui,irsn"sisis4e"ewysr"eeo,'isrip,Qt"olepuQaleeussaeets"oetnlipo.rornNocNceoeOe.e.d-7L:toiFss QrQ"',nurHoee,ss"'Lttpi-pouollnenF,a,i,NNfseoo.g'.co84o;..tidhir-e-ectLl yi::totoQQuI'eusetsiotinon N0.o9.9' . IIfftthheeaann-sIs,ww, eerrtto QuestHion

5

ir 66 OQuueesstitoion nNoN.88:; DDidd pplaiinnt:iffff CChhaarrlloottttee Bosweel!lI pprroov' e, b0yaapprereppoonnddeerraannccee offtthhee eviiddeence, thaatt hheerr

' 7 -

porotwectced

activittYy

was

a

-
subssttaannttiial

oorr

motLirivatlinsg

ffactortiinn

causing

defendant

FFeeddEExx

ttoo

ttaakkee

tthhee

aaddvveerrssee

8 eemmLpIollooymmeenltt aaccttioonn7?

9

Ycebs - - -/- ' - - - -

1 10 Pleeaasseeggoototo QQuueesstitoionn Noo..9..
11

No _ _ __

12

Instructions for QQuueesstion N—Noo-.-.66-

ooQrru-NeNsosot.i.o7n'ooNrr

-oN.oo99.:.:88IIif/""yynnoooouu,",aanddnsooswwnneeoortetedaannQsswuweeesrrtitohnissNqoou..e1Isstt""ionn- no

" aand yrou anssweereedd eeiither or aany ffuurrtthheerrqquueesstiioonnss;

1132 ininssteteaadd,, ggo direectly ttoo tthhee endd oof this ffoorrmm,, ssiiggn aand ddate iitt wwhheerree iiniiddiiccaatedd.. LLikikeewwiissee, iff yyoou

answered both QQuueestiioonnss N.1\o0. 3 aannddiNoo..4 y"yeess"" aanndd yyoouu aannsswweerreedd ceiiithheerr QQuueessttiioonn NNoo..66 oorr NNoo..

14 7 oorr NNoo..88 ""nnoo,","ddoonnoottaannsswncer thhiiss queessttiioonn oor aannyy ffurther qquessttionss; innssteead, goo ddiireecctly ttoo thhee

enndd ooff tthiis foormm, csiggn and date it whheeree iinnddiiccaatteedd OOtthheerrwwiissee,, pplleeaasse answer tthhee nneextt qquueestioonnss

I,FLI 15
1166 1 Q-QuueesstitoionnNoo..—9: WWihaatt aammoouunrt ooffddaamm1 aaggees,s,iff aanny,y,ddididplaaiinntti'ffffCChhaarrlioottitce BBoossweelll pprroove, by/aa-I

c3( Iiti 17 ppripepoo1pn1dAee-raiaUnree oo,rfftt,hh, /e?evTei'jd+eefnl,(cwe, awaasmcautshedert bhyerFbey, dFEedxE'sx'saacctttiioIo'rnfssl?)

18

Losstt eeaarnirfiilng{gss.:

300,000/

1r9 ii
720

OOtthheer rdadmaargaess., Linucldurdningg

_________ % 3OO00 mL e_rnLttaa!l0o1r eermnIoottiiooan11al7a1pm.a1i1n
amnd sufLfieHtrtniunL:g.:

$.~d~~_l~\~D_O_O

72<11
,l 222? QQuueessttioionn NNoro.. 1100::- DDiidd p,Ilaaiinntt-iiffff CChhaa_rrllooj ttjtt-ee RBoosswweellll pprroovee, .bhy preprpeopnodnederararnceceoof fththee:veivdideennccee,, tthhaatt
fl LA 23 deeftennddaafntlr1tFFeeddiEExx''sscoonnddUuCcfttrtooww.!mdarhde;hewr:e/w-:ee:rIrenimI.aAafllictck'ioYouuss,,A,0o0p,pnrreessssiRvee oorrinnrreecckklessddiissrregardd oDffhheerrrrigghhts,,

24 aass tthhoossee/ tteeInIrInrissaarreeddLeAffin'lieeddi"n tthhee//ssee iinnssttrruuccttiioon-nss??/

2/ 5

Y--es/

~ /

No0 _ __ ___ ___

Ofl1OvP i,'j,T'I',i,L1 26 I If-,oou:r aninwweerr tto Queessttiioan NNoo. IO wwaas '"tnoo.,"' ddco nncout aanr s;wertthhee nneext quieessttiioon ;iriinsitseteaadd,,ggooJdiirreeccttilyytototthhe

L27I I en-d noH'fHLtUhsi-s-foforrmm., ss- iigm-' n anI d d/ ate(/ 'iitit. wwhheerree// iinnddiiccaatteedd. . O0tthheerrwwiissee,, pplleeaasse answer the next questtion.

28

3

nited Stales District Court FrthrNorl±zrn D stflCi et Calitonija

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,_i* i-- 1 QOuueessttii-oonnNN-oo.. 1I1I:: WWhhaatt aammoouunnttooffp-u' nitivtieveddaammaaggeess., fifaann',yd, dididapiJnatiinfftCiffhCahrIaorlUoteteRBoowsw&e!llpprroovvee,, bbyy

2

a nprrenpnonndd-eernanpcne fotfh1te_heeevvidideennecee, tshhnoiuilldd- hbee awwradreddedininththisisccaassee??

3

$ dOJ1YH'SzOC, ,0w0c0

4

lif,ifr 5
t 66 D-ated: _____//____ -
7

':1

/

88

FOREPERSON

9

~Jl vt-I ~ eA:rL~~

10

11

12

13

14

15

1to6

17

1•88 '199

20

221

22

23

24

25

26

27

288

4

 
 Case 3:03-cv-02659 Document 248 Filed 12/17/2004 Page 1 of 28

1 James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452)
2 Lexi J. Hazam (SBN 224457) Chimène I. Keitner (SBN 226948)
3 Nirej S. Sekhon (SBN 213358) LIEFF, CABRASER, HEIMANN &
4 BERNSTEIN, LLP 275 Battery Street, 30th Floor
5 San Francisco, CA 94111-3339 Telephone: (415) 956-1000
6 Facsimile: (415) 956-1008

7 Todd M. Schneider (SBN 158253) Guy B. Wallace (SBN 176151)
8 Joshua Konecky (SBN 182897) SCHNEIDER & WALLACE
9 180 Montgomery Street, Suite 2000
San Francisco, CA 94104 10 Telephone: (415) 421-7100
11 Facsimile: (415) 421-7105

12 Waukeen Q. McCoy (SBN 168228)

13

LAW OFFICES OF WAUKEEN Q. McCOY 703 Market Street, Suite 1407

14

San Francisco, CA 94103 Telephone: (415) 675-7705

15 Facsimile: (415) 675-2530

16 Attorneys for Plaintiffs and the Proposed Classes

John Burris (SBN 69888) LAW OFFICES OF JOHN 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
PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Date: January 14, 2005 Time: 9:00 a.m. Courtroom of the Honorable Susan Illston

360065.1

PLAINTIFFS’ REPLY MEMORANDUM ISO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
CASE NO. C 03 -2659 SI; C 03-2878 SI

Case 3:03-cv-02659 Document 248 Filed 12/17/2004 Page 2 of 28

1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION ...........................................................................................................................1

4 ARGUMENT...................................................................................................................................4

I. RULE 23(a)(2)’s COMMONALITY REQUIREMENT IS SATISFIED. ..........................4

5

A. “Pure Subjectivity” Is Not Required for Class Certification. ..................................4

6

B. FedEx’s Promotion System Has Adverse Impact and R aises Common

Questions..................................................................................................................6

7

1. The Relevant Liability Period Is At Least October 17, 1999 to the

8

Present. .........................................................................................................6

2. Dr. Drogin Found Overall Adverse Impact in Promotions. .........................8

9

3. Dr. Baker’s Analyses Are Flawed and Do Not Undercut

10

Dr. Drogin’s Analyses..................................................................................9

a. Dr. Baker Concedes Statistically Significant Disparities. ...............9

11

b. Dr. Baker Improperly Includes Tainted Variables in Her

12

Models..............................................................................................9

c. Dr. Baker’s Selective Use of JCATS Data is Internally

13

Inconsistent and Relies on Tainted Variables. ...............................10

14

d. Dr. Baker’s Analysis of Promotions of Casual Employees Improperly Groups Casual Employees With External Hires. ........11

15

e. “Statistical Duelling” Presents Common Questions. .....................11

16

C. FedEx’s Performance Evaluation System Has Adverse Impact and Raises Common Questions................................................................................................12

17

1. FedEx Uses Centralized and Uniform Evaluations. ..................................12

18

2. FedEx’s Evaluations Are Discretionary. ....................................................12

3. FedEx Has Not Validated Its Evaluations. ................................................13

19

D. FedEx’s Compensation System Has Adverse Impact and Raises Common

20

Questions................................................................................................................15

E. FedEx’s Discipline System Has Adverse Impact and Raises Common

21

Questions................................................................................................................16

22 II. III.
23 IV.

RULE 23(a)(3)’s TYPICALITY REQUIREMENT IS SATISFIED. ...............................18 RULE 23(a)(4)’s ADEQUACY REQUIREMENT IS SATISFIED. ................................21 THE CLASSES MEET THE REQUIREMENTS OF RULE 23(b)(2). ............................21

24 CONCLUSION..............................................................................................................................22

25

26

27

28
360065.1

- i-

PLAINTIFFS’ REPLY MEMORANDUM ISO
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION CASE NO. C 03 -2659 SI; C 03-2878 SI

Case 3:03-cv-02659 Document 248 Filed 12/17/2004 Page 3 of 28

1

TABLE OF AUTHORITIES

2

Page

3

CASES

4 Allison v. Citgo Petroleum Corp.,

151 F.3d 402 (5th Cir. 1998) ...................................................................................................21

5 AMTRAK v. Morgan,

6

536 U.S. 101 (2002) ...................................................................................................................7

Barefield v. Chevron U.S.A.,

7

44 F.E.P. 1885, 1987 U.S. Dist. LEXIS 15 125 at *12 (N.D. Cal. Sept. 9, 1987)..........9, 12, 18

8

Battle v. White Cap, Inc., 1999 U.S. Dist. LEXIS 4658 at *10, *13-14 (N.D. Ill., March 30, 1999) ...............................17

9 Beck v. Boeing,

2003 U.S. App. LEXIS 3619 (9th Cir. 2003) ..........................................................................22

10 Binion v. Metropolitan Pier and Exposition Authority,

11

163 F.R.D. 517 (N.D. Ill. 1995) ...............................................................................................17

Blackie v. Barrack,

12

524 F.2d 891 (9th Cir. 1975) ...................................................................................................21

13

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991) .................................................................................................12

14 Butler v. Home Depot,

1997 WL 605754 (N.D. Cal. Aug. 29, 1997) ...................................................................passim

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

16

191 F.3d 283 (2d Cir. 1999).................................................................................................4, 11

Cherosky v. Henderson,

17

330 F.3d 1243 (9th Cir. 2003) ...................................................................................................7

18

Chisholm v. USPS, 665 F.2d 482 (4th Cir. 1981) ...................................................................................................17

19 Cummings v. Connell,

316 F.3d 886 (9th Cir. 2002) ...................................................................................................21

20 Dukes v. Wal-Mart,

21

222 F.R.D. 137 (N.D. Cal. 2004) ......................................................................................passim

EEOC v. Farmer Bros.,

22

31 F.3d 891 (9th Cir. 1994) .....................................................................................................13

23

Eldredge v. Carpenters 46 N. Cal. Counties Joint Apprenticeship and Training Comm.,

24

833 F.2d 1334 (9th Cir. 1987) .................................................................................................16

General Telephone Company of the Southwest v. Falcon,

25

457 U.S. 147 (1982) ...................................................................................................................4

26

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .................................................................................................................16

27 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .........................................................................................1, 2, 18
28

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Hansborough v. City of Elkhart Parks & Rec. Dept.,

802 F. Supp. 199 (N.D. Ind. 1992) ..........................................................................................18

4 Hartman v. Duffey,

5

19 F.3d 1459 (D.D.C. 1994) ....................................................................................................19

Hazelwood School Dist. v. United States,

6

433 U.S. 299 (1977) .................................................................................................................18

7

International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) .................................................................................................................18

8 James v. Stockham Valves & Fittings Co.,

559 F.2d 310 (5th Cir. 1977) .............................................................................................10, 15

9 Jones v. R.R. Donnelley,

10

__ U.S.__, 124 S.Ct. 1836 (2004) ..............................................................................................6

Kleiner v. First National Bank of Atlanta,

11

751 F.2d 1193 (11th Cir. 1985) ...............................................................................................19

12

Lyons v. England, 307 F.3d 1092 (9th Cir. 2002) ...................................................................................................7

13 Martinez-Mendoza v. Champion International Corp.,

340 F.3d 1200 (11th Cir. 2003) ...............................................................................................21

14 Molski v. Gleich,

15

318 F.3d 937 (9th Cir. 2003) ...............................................................................................2, 22

Motley v. Tractor Supply Co.,

16

32 F. Supp. 2d 1026 (S.D. Ind. 1998) ......................................................................................18

17

Paige v. State of California, 291 F.3d 1141 (9th Cir. 2002) .....................................................................................12, 16, 18

18 Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ...................................................................................................................6

19 Planned Parenthood v. Doyle,

20

162 F.3d 463 (7th Cir. 1998) ...................................................................................................19

Richardson v. Byrd,

21

709 F.2d 1016 (5th Cir. 1983) .................................................................................................19

22

Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990) ...................................................................................................4

23 Shores v. Publix Super Markets,

1996 WL 407850 (M.D. Fla. March 12, 1996)..................................................................18, 19

24 Siddiqui v. Regents of the Univ. of Cal.,

25

2000 WL 33190435 (N.D. Cal. Sept. 6, 2000) ........................................................................19

Sitgraves v. Allied Signal, Inc.,

26

953 F.2d 570 (9th Cir. 1992) .....................................................................................................6

27

Social Services Union, Local 535 v. County of Santa Clara, 609 F.2d 944 (9th Cir. 1979) ...................................................................................................21

28 Sosa v. Hiraoka,

920 F.2d 1451 (9th Cir. 1990) .................................................................................................13

PLAINTIFFS’ REPLY MEMORANDUM ISO

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Staton v. Boeing,

327 F.3d 938 (9th Cir. 2003) .............................................................................................18, 21

4 Stender v. Lucky Stores,

5

803 F. Supp. 259 (N.D. Cal. 1992) ........................................................................................3, 8

United States v. Crosby,

6

59 F.3d 1133 (11th Cir. 1995) .................................................................................................17

7

Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ...................................................................................................................4

8

STATUTES

9 28 U.S.C. § 1658..............................................................................................................................6 29 C.F.R. § 1607 et seq..................................................................................................................13
10 42 U.S.C. § 1981..............................................................................................................................2

11 78 Stat. 253, as amended, 42 U.S.C. § 2000e ..................................................................................6

12 Fed. R. Evid. 301 .............................................................................................................................7

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

FedEx opposes Plaintiffs’ Motion for Class Certification by brandishing its paper

3 promises. But as FedEx’s own expert concedes: “[A]ctions, particularly those of company

4 leaders, speak louder than words.” ( Declaration of D. Jan Duffy (“Duffy Decl.”) ¶ 14.) No paper

5 promises can bury the reality of statistical proof: in evaluating, disciplining, compensating, and

6 promoting employees, FedEx treats Minorities worse than white employees.

7

FedEx has a centralized, hierarchical structure and uniform policies governing

8 promotion, compensation, evaluation, and discipline. The statistical evidence establishes that

9 these policies have an adverse impact across the DGO and AGFS divisions, raising a host of

10 common questions. The proposed class representatives are members of the proposed classes and

11 suffered the same harm as that suffered by other class members. Accordingly, t he two proposed

12 classes meet the requirements of Rule 23(a) and Rule 23(b)(2).

13

Rule 23(a)(1). Numerosity: FedEx does not dispute that joinder of all members

14 of the proposed classes is impracticable.

15

Rule 23(a)(2). Commonality: In the Ninth Circuit, commonality is satisfied

16 where there are shared legal issues and divergent factual predicates, or where there is a “common

17 core of salient facts” coupled with disparate legal remedies. Hanlon v. Chrysler Corp., 150 F.3d

18 1011, 1019 (9th Cir. 1998). FedEx disputes commonality, but ignores this permissive standard.

19 The record before the Court establishes numerous common questions that satisfy that standard ,

20 including the following: (a) Whether FedEx’s companywide performance evaluation system,

21 which FedEx concedes has discretionary components as to all jobs, has adverse impact on

22 Minority Employees and African American Lower -Level Managers; (b) Whether FedEx’s

23 performance evaluation system has been validated for any jobs in accordance with the Uniform

24 Guidelines on Employee Selection Procedures; (c) Whether FedEx’s companywide requirement

25 of passage of the Basic Skills Test (“BST”) for promotions to Courier, Ramp Transport Driver,

26 and Customer Service Agent is justified in view of its conceded adverse impact; (d) Whether

27 FedEx’s companywide discipline system has adverse impact on Minority Employees and African

28 American Lower-Level Managers; (e) Whether FedEx’s uniform compensation system, which

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1 uniformly incorporates biased performance and discipline scores, has adverse impact on Minority

2 Employees and African American Lo wer-Level Managers; (f) Whether FedEx’s uniform

3 promotion system, which uniformly incorporates biased performance and discipline scores, has

4 adverse impact on Minority Employees; (g) Whether FedEx engages in a pattern and practice of

5 disparate treatment adverse to Minority Employees and African American Lower -Level

6 Managers; (h) Whether FedEx’s policies and practices violate Title VII of the 1964 Civil Rights

7 Act; 42 U.S.C. § 1981; and the California Fa ir Employment and Housing Act, as to class

8 members who have been employed or reside in California; (i) When the applicable statutes of

9 limitation began running with respect to class members’ claims; and (j) Whether injunctive relief

10 and other equitable remedies (including back pay and front pay) are warranted for class members.

11

Rule 23(a)(3). Typicality: The requirement of typicality is satisfied when the

12 claims of class representatives are “reasonably co -extensive” with those of absent class members.

13 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). FedEx disputes typicality, but

14 again ignores this permissive standard. The proposed class representatives’ claims cover the

15 range of common questions regarding FedEx’s promotion, evaluation, compensation, and

16 discipline systems. They are “reasonably co -extensive” with the claims of other class members.

17 FedEx attempts to create standing requirements that are not supported by Ninth Circuit law.

18

Rule 23(a)(4). Adequacy: FedEx appears to concede adequacy in its Proposed

19 Order. FedEx’s contention that managers and hourly employees have a potential conflict is 20 already accounted for by the two separate classes proposed. 1

21

Rule 23(b)(2). Injunctive Relief: The proposed classes meet the standard for

22 certification under Rule 23(b)(2) because plaintiffs seek meaningful injunctive relief. Molski v.

23 Gleich, 318 F.3d 937, 950 (9th Cir. 2003).

24

FedEx attempts to distract the Court’s attention by focusing on the lack of

25

26 1 FedEx’s memorandum in Opposition (“Opp.”) attacks Class Counsel as inadequate for relyin g on certain deposition testimony evidencing a discriminatory culture at FedEx in the face of an
27 order from the Court, then under reconsideration, denying a motion to compel (Opp. at 14), but does not explain how Class Counsel, given their collective resources and experience in the field
28 of civil rights litigation, would be unable adequately to represent the interests of the Classes.

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1 statistically significant adverse impact for claims that Plaintiffs do not seek to certify .2 Far from

2 seeking to certify an “across-the-board, wall-to-wall discrimination action,” as FedEx suggests

3 (Opp. at 1), Plaintiffs responsibly seek to certify only those class claims for which they have 4 established a sound evidentiary basis for asserting class claims at this time.3

5

As to the claims for which certificat ion is sought, FedEx’s statistical expert

6 concedes that (1) there is a statistically significant shortfall in the promotion of Latinos from

7 Casual Handler jobs to Courier jobs ( Report of Mary Dunn Ba ker, Ph.D. (“Baker Rpt.”) at 9-10 &

8 Tbl. 4) and (2) Latino Couriers were paid less than their white counterparts by a statistically

9 significant amount (Baker Rpt. at 29). FedEx’s expert is only able to eliminate statistical

10 significance in other analyses by improperly including tainted variables such as performance

11 evaluation score, BST score, and manager approva l—all of which FedEx concedes have adverse

12

13

2 On page 10 of its Opposition, FedEx lists 11 preliminary findings that it asserts Dr. Drogin chose not to report because they were not statistically significant. Of those, the second and third

14

findings relate to issues that are not the subject of Plaintiffs’ class certification motion: promotions to senior manager, and the pay of Latino managers. Findings four through eleve n

15

relate to analyses of job changes involving a relatively small number of promotions that are, for the most part, subsumed by Dr. Drogin’s overall promotions analysis, using JCATS data, set forth

16

in paragraphs 44-48 of his Statistical Analysis of Race and Ethnic Patterns in Federal Express Workforce (“Drogin Rpt.”), where he did find and report statistically significant under -promotion

17

of African Americans and Latinos. Neither Dr. Baker (Baker Rpt. at 7) nor FedEx (Opp. at 10) bothered to mention that Dr. Drogin also did not report over 40 other preliminary studies he

18

conducted, and produced to FedEx, where he did find statistical significance. (Dr. Richard Drogin Reply Declaration to Declaration of Dr. Mary Baker (“Drogin Reply”) ¶¶ 3f, 24.)

19

Contrary to what FedEx asserts, the standard Dr. Drogin used for whether to report a finding was not whether the result was favorable to Plaintiffs, but whether the study was reliable, probative,

20 and informative regarding a policy or practice that is the subject of P laintiffs’ motion. The first finding listed on page 10 relates to a study whose results are likely skewed by a

21 tainted pool. As Dr. Drogin reports, African Americans are not promoted to the Courier position in the numbers one would expect. (Drogin Rpt. ¶¶ 25-27.) Had they been, the percentage of

22 African Americans in the pool of Couriers would be larger and the results of an analysis of promotions from Courier to Operations Manager might well yield a statistically significant

23 shortfall, as it does for La tinos (Drogin Rpt. ¶ 32). See Stender v. Lucky Stores, 803 F. Supp. 259, 333 (N.D. Cal. 1992) (lack of statistically significant disparities in promotion to certain positions

24 caused by women being “blocked from upper management positions at the lower rungs of the promotional ladder”).

25 3 There is no motion before the Court with respect to potential class claims not included in

Plaintiffs’ Motion for Class Certification. The Court does not need to address those claims at this

26 time. FedEx’s request that such claims be dismissed without prejudice (which can perhaps be

characterized as a cross-motion to strike), is premature since, for example, whether there is a

27 meritorious claim for promotions from Operations Manager to Senior Manager is dependent on

whether the pool of Operations Managers contains an under-representation of Minorities due to

28 discrimination. See Stender v. Lucky Stores, 803 F. Supp. 259, 333 (N.D. Cal. 1992).

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1 impact—or by improperly grouping casual employees in a pool with external hires, when they 2 have different characteristics from external hires.4 In any event, whether Plaintiffs’ statistical

3 model or FedEx’s statistical model is more appropriate is a common issue and should be resolved

4 on the merits. See Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999).

5 The differing opinions of the parties’ experts on the merits present classic common questions that

6 militate in support of class certification.

7 8 I. 9 10

ARGUMENT RULE 23(a)(2)’s COMMONALITY REQUIREMENT IS SATISFIED. A. “Pure Subjectivity” Is Not Required for Class Certification.
FedEx asks this Court to deny class certification because its per sonnel policies

11 contain some objective components. (Opp. at 12-13.) This is not the co rrect legal standard. The

12 Supreme Court affirmed that subjective decisionmaking can be a basis for a disparate impact

13 claim in Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91 (1988). In that case, the

14 Court held explicitly that a system that is a mix of subjective and objective components is subject

15 to attack on an adverse impact theory. Id. at 989-90 (giving example of selection system

16 requiring high school diploma and passage of general aptitude test, plus a brief interview); see

17 Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990) (holding that disparate impact

18 analysis “may be applied to challenge both objective and subjective employment practices or

19 criteria”). Here, FedEx’s criteria for promotions, evaluations, compensation, and discipline are
20 commonly tainted by discretionary components that prod uce discriminatory results.5
21 4 See Drogin Reply ¶ 4; The Expected Representation of Race/Ethnic Minorities When Selected Vacancies Are Filled at FedEx Express, by Marc Bendick, Jr., Ph.D. (“Bendick Rpt.”) ¶¶ 9-14.
22 5 FedEx draws its erroneous notion of an “entirely subjective decisionmaking process” from a footnote in General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 159 n.15
23 (1982). The Court in that case found that an employee could not maintain a class action because he had not identified any questions of law or fact common to the proposed “across-the-board”
24 class. Id. at 158-59. The Court opined in dicta that such an “across-the-board” class action would have been maintainable had “the discrimination manifested itself in hiring and promotion
25 practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Id. at 159 n.15. This statement—articulating an exception to the general rule that
26 “across-the-board” class actions will not be certified —is not applicable here, where Plaintiffs are not alleging across-the-board discrimination, but have instead identified specific discriminatory
27 policies and practices. Moreover, the Court made this statement by way of example only (“such as”), and also indicated that commonality and typicality would “clearly” be satisfied had the
28 employer used a biased testing procedure. Id. The common questions in this case are consistent

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1

Consistent with Watson, courts in this district have certified classes based on a

2 subjective decisionmaking theory where the practices at issue were not “entirely subjective.” See,

3 e.g., Dukes v. Wal-Mart, 222 F.R.D. 137, 149 (N.D. Cal. 2004) (describing Wal-Mart’s

4 compensation and promotion policies as involving both objective and subjective elements ); Butler

5 v. Home Depot, 1997 WL 605754 (N.D. Cal. Aug. 29, 1997) (Home Depot selection decisions

6 involved both objective [e.g., age] and subjective elements).

7

Plaintiffs here have identified discretionary components of FedEx’s personnel

8 policies and practices that have an adverse impact on class members. The presence of certain

9 objective components does not im munize FedEx from liability for discrimination, and it does not

10 preclude class treatment of Plaintiffs’ disparate impact and disparate treatment claims:

11

1) First, FedEx’s argument that promotions are based on “objective” criteria

12 ignores the adverse impact of these criteria and FedEx’s failure to validate them (including BST

13 scores), as well as managers’ unmonitored discretion to approve or not approve employee

14 applications. FedEx also ignores the regular occurrence of CEV and job ranking group “pass -

15 overs” in favor of non-class member candidates.

16

2) Second, FedEx’s argument that performance evaluations have certain

17 objective components ignores the declarations from Dr. Bielby and from operations managers

18 including Kalini Boykin and Derrick Satchell regarding the discretionary elements of 19 performance reviews, and the lack of guidance on how to apply the rating scale. 6

20

3) Third, FedEx’s argument that discipline is based on objective criteria

21 ignores FedEx’s failure to discipline non-class members for the same infractions. When,

22 whether, and how to apply the disciplinary criteria remains discretionary and unmonitored. 7

23
24 with the examples given in t his footnote: a biased testing procedure (the BST), and largely subjective decisionmaking processes.
25 6 See Expert Report of William T. Bielby, Ph.D. (“Bielby Rpt.”) ¶¶ 26 -29; Decl. of K. Boykin ¶¶ 2-16; D. Satchell ¶¶ 4-11; J. Haynes ¶¶ 23 -36; I. James ¶¶ 18-30.
26 7 See Bielby Rpt. ¶¶ 30, 32; Declarations of K. Boykin ¶¶ 17 -20; D. Satchell ¶¶15-17; J. Haynes ¶¶ 38-40; I. James ¶¶ 32-34; Aroz Dep. at 141:6-144:22, Keitner Reply Decl., Ex. 1; Miller Dep.
27 at 145:4-155:16 (no training on how to issue discipline; minorities disciplined more frequently than non-minorities for the same conduct; minority operations manager directed by senior
28 manager to discipline minority employees in workgroup), Keitner Reply Decl., Ex. 17.

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1

B. FedEx’s Promotion System Has Adverse Impact and Raises Common

Questions.

2

1. The Relevant Liability Period Is At Least October 17, 1999 to the

3

Present.

4

FedEx argues that all promotions claims that arose prior to June 12, 2002 are time -

5 barred and that, therefore, statistically significant disparities in earlier years are not relevant. This

6 argument fails: 1) the liability period for Plaintiffs’ promotions cla ims dates back to at least

7 October 17, 1999 under 28 U.S.C. § 1658 and the continuing violations theory applicable to 8 pattern-or-practice claims;8 and 2) even if the liability period starts later, evid ence from before the

9 start of the liability period is relevant to proving timely claims.

10

The Supreme Court recently held in Jones v. R.R. Donnelley, __ U.S.__, 124 S.Ct.

11 1836 (2004), that claims brought under 42 U.S.C. § 1981 that were not actionable prior to 1990

12 are governed by the four - year, catch-all federal statute of limitations enacted in § 1658. Section

13 1658, rather than the applicable state statute of limitations, applies “if the plaintiff’s claim against

14 the defendant was made possible by a post-1990 enactment.” Id. at 1845. The salient question,

15 then, is whether Plaintiffs’ promotions claims were actionable prior to 1990, or were only made

16 possible by the amendments to Title VII enacted in the Civil Rights Act of 1991 (78 Stat. 253, as

17 amended, 42 U.S.C. § 2000e et seq.).

18

The Ninth Circuit held in Sitgraves v. Allied Signal, Inc., 953 F.2d 570 (9th Cir.

19 1992), a case involving race discrimination in promotion decided under pre -1991 law, that claims

20 of denial of promotion to more skilled hourly positions with higher pay were not actionable u nder

21 § 1981. The court found that where such a move did not entail the addition of supervisory duties,

22 it did not “involve a meaningful, qualitative change in the contractual relationship,” and therefore

23 could not give rise to a § 1981 claim. Id. at 573-74 (citing Patterson v. McLean Credit Union,

24 491 U.S. 164 (1989)). Under Sitgraves, Plaintiffs’ claims of denial of promotions from one

25 hourly position to another, such as from Handler to Courier, were made possible only by the Civil

26 Rights Act of 1991. They are therefore governed by the four- year statute of § 1658.

27

Plaintiffs’ promotions claims dating back to 1999 are also timely because they

28 8 FedEx concedes that the four -year statute applies to Plaintiffs’ § 1981 compensation claims.

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1 arise from a classwide pattern-or-practice of widespread, systematic discrimination at FedEx and

2 are therefore part of a continuing violation. The Supreme Court and the Ninth Circuit have left

3 open the applicability of the continuing violations theory to such claims. See AMTRAK v.

4 Morgan, 536 U.S. 101, 115 n.9 (2002); Lyons v. England, 307 F.3d 1092, 1107 n.8 (9th Cir.

5 2002). Plaintiffs’ pattern-or-practice claims are supported by evidence of FedEx’s system of

6 arbitrary and subjective decisionmaking in promotions, and by common statistical evidence

7 demonstrating disparities in promotions and other selection procedures, such as the BST and 8 performance reviews.9 In this context, the liab ility period is not limited to the charge -filing

9 period corresponding to any single act that forms part of the pattern-or-practice. Instead, the

10 employer’s liability may extend back to cover the entire period during which the pattern of

11 discriminatory conduct prevailed, reasonably bounded by equitable defenses such as laches and 12 by the two-year limitation on recovering back pay. 10 See Morgan, 536 U.S. at 119, 121-22.

13

In addition, both the Supreme Court and the Ninth Circuit have clearly held that

14 time-barred discriminatory acts may serve as relevant background evidence for timely

15 discrimination claims. Morgan, 536 U.S. at 113; Lyons, 307 F.3d at 1108-11. Such evidence is

16 also relevant to proving that an employer acted with discriminatory intent during the liability

17 period, even if the prior acts were taken against a different victim. Lyons, 307 F. 3d at 1111,

18 n.12. In Lyons, the Ninth Circuit further clarified that the applicable standard for the admission of

19 such time-barred evidence is the definition of relevance set forth in Rule 401 of the Federal Rules 20 of Evidence, rather than the Circuit’s pre -Morgan, more stringent “reasonable-relation” test.11 Id.

21 9 See Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003) (noting in reference to the 22 timely filing question that pattern-or-practice claims are distinct from discrete acts because they
are “based on discriminatory conduct that is widespread throughout a company or that is a routine 23 and regular part of the workplace,” and that such claims “typically use statistical evidence to
demonstrate the employer’s [ ] treatment of the protected group”). 24 10 It is not necessary for this Court to further delineate the liability period at this stage, since
FedEx has not yet produced c omplete data from before 1999 nor alleged any basis for laches.
25 11 Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable,” Fed. R .
26 Evid. 301, whereas the Ninth Circuit’s previous “reasonable relation” test required that the discriminatory prior acts be part of a continuing violation extending into the liability period. The
27 Ninth Circuit noted in Lyons that under the reasonable relation test, a single derogatory racial remark from before the liability period would not be admissible, but that such a remark would be
28 admissible under the Rule 401 standard applicable post -Morgan. Id.

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1 at 1110-11. For these reasons, FedEx’s argument that only statistics from 2002 and 2003 are

2 relevant is unavailing, and Plaintiffs’ inclusion of earlier years in their statistical analysis

3 demonstrating common and statistically significant disparities is warranted.

4

Finally, all of these questions are common questions of law for the classes that

5 support class treatment, regardless of their ultimate outcome.

6

2. Dr. Drogin Found Overall Adverse Impact in Promotions.

7

Contrary to FedEx’s assertions (Opp. at 20), Dr. Drogin did perform an overall

8 promotions analysis, using FedEx’s Job Change Application Tracking System (“JCATS”)

9 database, of promotions among permanent hourly positions and from permanent hourly positions

10 into operations manager positions. He found that African American applicants we re approved by

11 their managers less often tha n white applicants (Z-value of -27.79) and selected less often tha n

12 white applicants (Z-value of -7.19). (Drogin Rpt. ¶¶ 44-46.) He also found that Latino applicants 13 (defined as such in FedEx’s EEO data 12) were approved less often tha n white applicants (Z-value

14 of -13.24) and were selected less often tha n white applicants (Z-value of -4.74). (Id. ¶¶ 47-48.)

15

Because “Courier jobs represent the bulk of the highest -paying hourly jobs at

16 FedEx, and are the stepping stone to the entry level management job of Oper ations Manager” (id.

17 ¶ 21), Dr. Drogin also specifically analyzed promotions into the Courier position. (Id. ¶¶ 22-27,

18 30-31.) He found statistical significance with respect to both African Americans and Lat inos. 19 (Id.)13

20

The overall disparities in promotions of class members, as well as the disparities in

21 certain illustrative job moves, support an inference of class -wide discrimination in promotions.

22 See, e.g., Stender v. Lucky Stores, 803 F. Supp. 259, 333 (N.D. Cal. 1992) (finding statistical

23 12 Plaintiffs use the term “Latino” rather than “Hispanic” because they understand that this is the
24 term more commonly used on the West Coast. 13 FedEx accuses Dr. Drogin of failing to report results that were not statistically significant on
25 that basis. See Opp. at 10; supra note 2. In truth, FedEx, which was given all of Dr. Drogin’s backup data, should be aware that Dr. Drogin did not report many statistical runs on relatively
26 small samples, including many runs that showed statistical significance. D rogin Reply ¶ 24 n. 30 (36 unreported JCATS analyses with significant adverse impact; 8 unreported discipline or BST
27 analyses with significant adverse impact; at least 9 unreported promotion analyses showing statistically significant adverse impact; at leas t 2 performance rating analyses showing
28 statistically significant adverse impact).

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1 evidence sufficient to prove disparate treatment in defendant’s “promotion practices a s a whole”

2 where the statistical evidence was significant for some positions and not for others).

3

The question at this stage is simply whether Dr. Drogin’s approach is a reasonable

4 method of conducting a statistical analysis. Dukes v. Wal-Mart, 222 F.R.D. 137, 158-59 (N.D.

5 Cal. 2004); see Barefield v. Chevron U.S.A., 44 F.E.P. 1885, 1987 U.S. Dist. LEXIS 15125 at *12

6 (N.D. Cal. Sept. 9, 1987). Dr. Drogin’s methodology easily satisfies this requirement.

7

3. Dr. Baker’s Analyses Are Flawed and Do Not Undercut Dr. Drogin’s

Analyses. 8

a. Dr. Baker Concedes Statistically Significant Disparities. 9

FedEx’s expert, Dr. Baker, reported statistically significant disparities that support 10
Plaintiffs’ allegations of discrimination in (1) the under-promotion of casual Latino employees to 11
Courier jobs (Baker Rpt. at 10, 18 & Tbl. 4; Z-value of -8.22); (2) hourly pay rates for Latino 12

Couriers in 1999, with nearly ¾ of Latinos in DGO working in the Courier position ( id. at 29); (3) 13

pay rates for African-Americans for Customer Service Agent in 1 999 and Handlers in 2003 ( id. at 14

27), and for Latino Ramp Agents in 2000 and 2001 ( id. at 28) and Latino Material Handlers in 15
1999 (id. at 29); and (4) discipline of African-American employees by Caucasian managers in 16
AGFS and DGO ( id. at Tbl. 6.1; Z-values of 3.33 and 5.24).14 17

b. Dr. Baker Improperly Includes Tainted Variables in Her

18

Models.

19

Dr. Baker opines that promotions analyses should take into account BST scores,15

20 performance review scores, discipline records, and manager approval, and that compensation

21 analyses should take into account performance reviews, and time in permanent positions. As

22 Dr. Drogin’s report demonstrates, however, and as Dr. Baker does not contest, all of those

23 variables have statistically significant adverse impact. 16 They are all tainted variable s. Tainted

24 14 Dr. Baker concedes that “when the outcome is adverse to the protected group and the number of standard deviations is two . . . or more . . . the data provide statistical s upport for a claim of

25

discrimination. . . . ” Baker Rpt. at 5. 15 FedEx offers no evidence or expert testimony in defense of its BST. Dr. Nita French concluded

26 in her Report on the Basic Skills Tests and Their Use by Federal Express that the BST is not properly required by FedEx for the three class member jobs for which it is used. The BST

27 presents a classic common question and area for injunctive relief. 16 Drogin Rpt. 50-52 (BST), 34-35 (performance), 53-55 (discipline), 39-47 (approval); Baker

28 Rpt. at 20 & Tbl. 6.1 (conceding significant disparities in discipline); Baker Dep. at 31:19-32:3

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1 variables should not be used in a proper model because they mask the discrimination being

2 studied. A proper model analyzes expected outcomes in race -neutral processes and compares 3 them to actual outcomes.17

4

Similarly, an employee’s ability to embark on the ASPIRE process depends

5 largely on manager invitation and requires manager approval. (Brooks Dep. at 33:7 -34:10,

6 Keitner Decl., Ex. 2 & Keitner Reply Decl, Ex. 4 ; Aroz Dep. at 42:20-47:19.) Whether a

7 candidate has taken the PET is a grossly under - inclusive measure of interest because, before

8 taking the PET, candidates must (1) have no active warning letters and have a current “above -

9 satisfactory” performance review rating; (2) receive manager approval to take a series of pre-

10 requisite classes; (3) receive manager confirmation of successful completion of the classes; and

11 (4) receive manager assessment of “eCompetencies .” (Brooks Dep. at 21:21-26:22, 32:23-38:16;

12 Aroz Dep. at 47:20-51:21.) FedEx does not know whether this discret ionary pre-approval process

13 has adverse impact. (Brooks Dep. at 23:25-24:11, 25:19-26:5, 40:3-13.) Restricting an analysis

14 of promotions to operations manager to candidates who have completed the PET , as Dr. Baker

15 does (Baker Rpt. at 11 & Tbl. 5 ), unjustifiably restricts the relevant availability pool in a manner

16 that masks statistical evidence of discrimination.

17

c. Dr. Baker’s Selective Use of JCATS Data is Internally

Inconsistent and Relies on Tainted Variables. 18

Dr. Baker offers no justification for her se lective use of JCATS data to provide

19

“actual” candidate pool data. Baker Rpt. at 10; see Drogin Reply ¶¶ 6(a)-(b), 7-9. As Dr. Drogin

20

explained in his original report, only a small percentage of class member promotions appear in

21

JCATS. Drogin Rpt. ¶¶ 23-24. Dr. Baker concedes that the JCATS data are incomplete. (Baker

22

Rpt. at 15.) Dr. Baker does not adequately explain why she is willing to use incomplete data to

23

(BST), 32:4-33:21 (performance), 44:22-47:14, 50:16-51:9 (discipline), 71:22-74:21 (approval),

24 Keitner Reply Decl., Ex. 2. Dr. Baker relied on variables such as BST and performance reviews

without determining whether or not they were valid. See Baker Dep. at 17:1 -25:17 (discussing

25 tainted variables), 40:8-42:22, 43:1-5. 17 Courts have rejected reliance on tainted variables in statistical analyses. See, e.g., James v.

26 Stockham Valves & Fittings Co., 559 F.2d 310, 332 (5th Cir. 1977) (rejecting pay rate regression

analysis that incorporated race-biased differences in job classification and in subjective

27 performance evaluations); see also Butler v. Home Depot, 1997 Dist. LEXIS 16296 at *37 (N.D.

Cal. Aug. 29, 1997) (“A ‘tainted variable’ is one whose value is affected by discrimination and

28 has the effect of concealing disparities due to discrimination. ”).

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1 determine comparative interest, but not to do a promotions analysis. (Baker Dep. at 124:21-

2 137:5.) Having used JCATS for the sole purpose of providing incomplete applicant pool data,

3 Dr. Baker then inexplicably failed to analyze JCATS comparative approval and selection rates.

4 Dr. Drogin analyzed comparative approval rates and selection rate s using JCATS data, and found

5 strong statistical significance adverse to Minorities. Drogin Rpt. ¶¶ 44-48.

6

Although Dr. Baker concedes that a disproportionately fewer number of Minorities

7 receives manager approval (Baker Dep. at 71:22-74:21), she uses the percentage of Minority

8 “approved applicants” instead of the percentage of Minority applicants as her measure of interest.

9 (Baker Rpt. Tbl. 2.1, 2.2, 3.1, 3.2; Baker Dep. at 77:18-79:12.) Had she simply used the

10 percentage of Minority applicants, without including the tainted variable “approved,” she would

11 have found a much higher percentage of interested Minorities. (Baker Dep. at 80:17-84:11.)

12

d. Dr. Baker’s Analysis of Promotions of Casual Employees

Improperly Groups Casual Employees With External Hires . 13

Dr. Baker also errs in analyzing the move from casual to permanent status as if 14

casual employees were external applicants. (Baker Rpt. at 9.) Dr. Marc Bendick, an expert labor 15
economist, has found that this approach is unwarranted because FedEx treats c asual employees as 16
employees. (Bendick Rpt. ¶ 14(a)-(b).) Casual employees at FedEx are properly treated as 17
internal candidates and, as expected of internal candidates, have a much greater probability of 18

being selected to fill job vacancies than external candidates. (Id. ¶¶ 9-13.) Dr. Bendick finds that 19

Dr. Drogin’s approach of treating casuals in a separate pool is supported by the evidence. (Id. ¶ 20
14(c)-(d).)18 21

e. “Statistical Duelling” Presents Common Questions . 22
Whether Plaintiffs’ statistical model or FedEx’s statistical model is more 23

appropriate is a common issue and should be resolved on the merits. See Caridad v. Metro-North 24

Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999) (noting irrelevance of “statistical duelling” at 25

class certification stage of proceedings); see also Bouman v. Block, 940 F.2d 1211, 1225 (9th Cir. 26
18 Even if it were appropriate to consider an external availability percentage, Dr. Baker did not 27 use the appropriate Census category, since the category she selected does not even include the
population being studied. (Bendick Rpt. ¶¶ 15-16; see also Drogin Reply ¶ 4(b); Baker Dep. 28 at 115:11-123:3.)

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1 1991) (whether statistics are rebutted is a question for the trier of fact). The statistical and expert

2 testimony in this case will present common questions for the trier of fact. Dukes v. Wal-Mart,

3 222 F.R.D. 137, 155 (N.D. Cal. 2004) ; Butler v. Home Depot, Butler v. Home Depot, 1996 WL

4 421436 at *3 (N.D. Cal. Jan. 25, 1996).

5

C. FedEx’s Performance Evaluation System Has Adverse Impact and Raises

Common Questions. 6

1. FedEx Uses Centralized and Uniform Evaluations. 7

FedEx argues that, because there are several different performance review forms, 8

there can be no class claim relating to the adverse impact of t hese reviews. No case law supports 9

this stringent requirement. To the contrary, the Ninth Circuit has supported grouping much more 10
diverse requirements together for the purpose of evaluating disparate impact. See Paige v. State 11
of California, 291 F.3d 1141 (9th Cir. 2002) (grouping together written and oral exams with 12

different questions and covering different topics for each peace officer rank). 13

FedEx uses a single evaluation form for Operations Managers, satisfying even 14

FedEx’s proposed requirement for commonality. For Hourly Employees, the 12 forms identified 15
by FedEx use the same rating scale and have overlappi ng categories. They are centrally designed 16
and disseminated (on paper or, more recently, on- line), and a single FedEx employee, Dr. Jerilyn 17
Hayward, is responsible for all of them. 19 18

2. FedEx’s Evaluations Are Discretionary. 19

Managers at FedEx have virtually unfettered discretion and minimal guidance in 20

scoring employees on the subjective components of performance evaluation forms. See supra 21
note 6. Hourly employees are scored on a scale of 1 to 7 for each performance category, and 22
managers are scored on a scale of 1 to 4 for each performance category. These scales have 23

remained the same throughout the class period, although the reviews have been modified and 24

25 19 FedEx cites two cases in support of its argument: Grosz v. Boeing, 2003 U.S. Dist. LEXIS 25341 (C.D. Cal. 2003), a case involving a proposed class of hundreds of job categories with no
26 centralized performance evaluation policies or practices among the different business units, and Barefield v. Chevron, 44 FEP Cases (BNA) 1885 (N.D. Cal. 1987), where one evaluation was
27 used for all class members. FedEx’s high degree of centr alization and uniformity of reviews is far from the situation in Grosz, where certification was denied, and much closer to that in
28 Barefield, where certification was granted. Cf. Barefield, supra, at *11.

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1 moved on-line. The computerization of the reviews has not improved them; to the contrary, the

2 guidelines that appeared on the paper review forms have been truncated, causing Dr. Jerilyn 3 Hayward to express concern about the resulting lack of guidance for managers. 20

4

FedEx presents no evidence to support its claim that performance reviews and

5 other employment policies are “driven” by objective factors. (Opp. at 12; Prop. Ord. at 3.) What

6 matters is which aspects of its practices drive the observed adverse impact. FedEx has not even

7 examined the adverse impact of its performance reviews, let alone wheth er the objective or the 8 subjective components account for the adverse impact and thus “drive” differences in scores.21

9

3. FedEx Has Not Validated Its Evaluations.

10

FedEx’s failure to validate its performance reviews represents a central common

11 question affecting both the Minority Employee Class and the African American Lower -Level

12 Manager Class. FedEx’s performance evaluations of hourly employees and operations managers

13 form the basis for employment decisions including eligibility for promotions, obtainin g

14 promotions, and pay rate increases. The evaluations fall squarely within the scope of the Uniform

15 Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq. They also fall squarely

16 within the scope of the named plaintiffs’ EEOC charges relating to the discriminatory outcomes 17 of FedEx’s performance evaluation system.22 Because FedEx’s performance evaluations have

18 adverse impact on African-Americans and Latinos, FedEx is legally required to document their

19 validity. FedEx has disregarded this obligation.
20 20 Hayward Dep. at 195:10-196:21, Keitner Reply Decl., Ex. 14; E-mail from Jerilyn LeDuc (Hayward) to Wanda Lanier dated July 13, 2000, Keitner Reply Decl., Ex. 26 [Dep. Ex. 98].
21 21 See Response to Declarations of Dr. Jerilyn Hayward and Ms. Jan Duffy by Nita R. French, Ph.D. (“French Reply”) at 15 -16. Whether the subjective components of the evaluations account
22 for a disproportionate amount of the variation among scores is a common question for the classes. 22 See EEOC charges of named plaintiffs, attached to Plaintiffs’ Consolidated Amended
23 Complaint: Gonzales (alleging discrimination in terms and conditions of employment and retaliation in the form of lower performance evaluation scores); Brown (alleging discrimination in
24 compensation, promotions, and terms and conditions of employment); Satchell (same); Boykin (same); Guerrero (same; also alleging policies and practices with disparate impact); Hutchins
25 (same); Smith (same); Stevenson (discrimination in terms and conditions of employment). Contrary to FedEx’s suggestion (Prop. Ord. at 6), Plaintiffs have exhausted their
26 administrative remedies with respect to their performance evaluation claims. See EEOC v. Farmer Bros., 31 F.3d 891, 899 (9th Cir. 1994) (affirming that district court has jurisdiction over
27 scope of the EEOC charge and the scope of the actual EEOC inv estigation or an EEOC investigation which “can reasonably be expected to grow out of the charge of discrimination”)
28 (emphasis in original, quoting Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)).

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1

In response to the declarations submitted by Dr. Jerilyn Hayward and by Ms. Jan

2 Duffy in support of FedEx’s Opposition to class certification, Dr. Nita French concludes that

3 FedEx’s performance reviews “have not been shown to be valid, do not comply with the Uniform

4 Guidelines on Employee Selection Procedures (UGESP, 1978), and do not meet other important

5 criteria for good practice.”23 FedEx’s own industrial psychologists have repeatedly highlighted 6 problems with the reliability and consistency of performance reviews as they are used at FedEx. 24

7 FedEx’s outside expert Jan Duffy did not inquire into whether FedEx complies with its obligation

8 to validate selection procedures including performance reviews. Duffy Dep. at 83:5-25, Keitner

9 Reply Decl., Ex. 9. She testified in deposition that FedEx’s failure to comply with federal law

10 requiring validation would not affect her opinion that FedEx represents the “Gold Standard” in

11 personnel management. Id. at 137:5-138:3.

12

FedEx has produced no documentation indicating that FedEx’s reviews are valid

13 (see French Reply at 3-5, 7-8, 11-12), even though federal law requires employers to maintain

14 such documentation. 29 C.F.R. § 1607.15. FedEx has disregarded its obligation to inquire into

15 the adverse impact of performance evaluations and their effect on other employment decisions

16 such as promotion and compensation. (French Reply at 15-16.) FedEx has produced no evidence

17 that it has ever at tempted to identify alternative selection procedures with less adverse impact,

18 despite its legal obligation to do so. 29 C.F.R. § 1607.3(B).

19

Ms. Duffy, who has no formal training in industrial organizational psychology or

20 management (Duffy Dep. at 13:3-11, 18:8-19:25) and only extremely limited experience in

21 employment discrimination class actions (id. at 7:17-8:4), offers no substantive opinions against

22 class certification. She simply restates her previous public comments about FedEx’s policies
23 23 French Reply at 2; see also id. at 3-16 (cataloguing deficiencies, including: inadequate design (3-5); failure to ascertain whether or not reviews are interpreted and used consistently ( 5); lack of
24 validation of both objective and subjective components (5-6); lack of evidence that category weights are appropriate (6); no validation of changes to reviews (6); insufficient evidence of job -
25 relatedness (7-8); inappropriate use of traits rathe r than behavior as basis for evaluation (9); lack of definition of rating scale points (9-10); lack of evidence regarding properties such as rater
26 reliability and ability accurately to distinguish different levels of performance across ratees and categories (11-13); lack of adequate rater skills training (13 -14); lack of monitoring and
27 enforcement of policy (14-15); lack of monitoring of adverse impact (15 -16)). 24 See Plaintiffs’ MPA in Support of Plaintiffs’ Motion for Class Cert. at 16 -17 (citing critical
28 comments by FedEx I/O psychologists Joel Vaslow and David Brooks); French Reply at 12.

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1 (Duffy Decl. ¶ 11) and studiously avoids examining FedEx’s actual practices,25 even though she

2 concedes that “it is not reasonable management practice to engage in policies and procedures and

3 practices or the implementation of those that result in legally declared d iscrimination” (Duffy

4 Dep. at 53:13-17), and that mere “capability” to avoid discrimination is not enough . Id. at 92:19-

5 93:5. Dr. French concludes that “numerous facts about FedEx practices are inconsistent with Ms.

6 Duffy’s conclusions.” French Reply at 17; see id. at 17-19 (listing examples).

7

The written policies lauded by Ms. Duffy provide cold comfort where, as here, an

8 employer takes no systematic steps to monitor whether the policies are followed, and where the 9 policies themselves invite the influence of racial stereotypes. 26

10

D. FedEx’s Compensation System Has Adverse Impact and Raises Common

Questions. 11

FedEx’s compensation system is discriminatory, in large part, because

12

performance evaluations with adverse impact are factored directly into permanent em ployees’

13 compensation levels.27 Dr. Baker’s statistical comparison model, which uses the tainted variable

14

of performance review (and only counts seniority in permanent positions even though Minorities

15

spend disproportionate time in casual positions), ignor es the causes of the discrimination. As

16

discussed above, such a model is improper. See supra at 9-10; James v. Stockham Valves &

17

18 25 Duffy Dep. at 29:10-20, 94:13-18; see French Reply at 16-17 (detailing flaws in Ms. Duffy’s approach). Ms. Duffy failed to review or even to request materials incl uding expert and
19 deposition testimony (Duffy Dep. at 26:24-28:9), EEO-1 reports (id. at 82:10-21), or affirmative action program data (id. at 114:24-115:9). She did not interview any non- management
20 employees. Id. at 105:2-12. Her “30 hours” of interview s consisted of two group meetings, and discussions with counsel for FedEx. Id. at 25:20-26:3. She wrote a report devoid of references to
21 the record and based largely on “memory” because she is a “terrible note taker.” Id. at 101:20-24. But her “memory” fails her on critical issues. For example, Ms. Duffy does not recall whether
22 90% of employees’ grievances are rejected or upheld in the first stage of the GFT process. Id. at 102:7-103:15; see also id. at 111:12-25 (not aware of how often appeals board decides in favor of
23 employee). Remarkably, she maintains that, either way, the GFT process is exemplary. Id. at 104:12-21. In addition, Ms. Duffy insists that the results of statistical analyses are not relevant to
24 her inquiry. Id. at 32:1-14, 71:16-72:1, 86:1-17; 87:22-88:7, 137:5-13. In so doing, she ignores a basic method recognized by courts, scholars, and governmental agencies for examining whether
25 employment practices are causing or preventing discrimination. 26 See Bielby Rpt. ¶ 23 (“Formal writt en policies alone … are not sufficient to minimize bias. …
26 The most effective approaches rely on proactive policies and practices, including recurring and mandatory training of managers and supervisors, and systematic and consistent monitoring of
27 outcomes of personnel decisions.”). 27 The “Step Progression” pay administration system referred to by Dr. Baker does not apply to
28 class member jobs. Baker Rpt. at 24; see Drogin Reply ¶ 15.

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1 Fittings Co., 559 F.2d 310, 332 (5th Cir. 1977); Drogin Reply ¶¶ 19-21.

2

Dr. Baker’s compensation model is also at odds with Ninth Circuit law disfavoring

3 unnecessary stratification in statistical analyses. The Ninth Circuit has affirmed the “generally

4 accepted principle” that using aggregated statistical data is generally more probative than using

5 subdivided data, unless “the employer can demonstrate that ‘the stratification is appropriate, and

6 that the stratifying variable is business justified.’” Paige v. State of California, 291 F.3d 1141,

7 1148 (9th Cir. 2002); see also Dukes v. Wal-Mart, 222 F.R.D. 137, 158 (N.D. Cal. 2004).

8 Subdivided data is often unhe lpful because small sample size may distort the statistical analysis.

9 Paige, 291 F.3d at 1148; Stout v. Potter, 276 F.3d 1118, 1123 (9th Cir. 2002).

10

Aggregation is appropriate where the groups in question “may be presumed to

11 have been similarly situated and affected by common policies.” Paige, 291 F.3d at 1148-49,

12 quoting Eldredge v. Carpenters 46 N. Cal. Counties Joint Apprent. & Training Comm., 833 F.2d

13 1334, 1339 n.7 (9th Cir. 1987). FedEx is highly centralized and uniform and applies the same

14 promotion, compensation, performance evaluation, and discipline policies to hourly employees

15 and lower-level managers in both of the divisions at issue here, A GFS and DGO. Managers and

16 employees move freely and frequently among FedEx locations, and between the two divisions.

17 Local and regional managers do not have authority t o deviate from company policy.

18

E. FedEx’s Discipline System Has Adverse Impact and Raises Common

Questions. 19

A disparate impact claim focuses on the results of an employer’s policies and

20

practices, regardless of the employer’s intent. Griggs v. Duke Power Co., 401 U.S. 424, 432

21

(1971). The race, gend er, or other characteristics of each individual FedEx supervisor charged

22

with issuing discipline are irrelevant to determining whether FedEx’s discipline system has a

23

disparate impact on class members. Dr. Drogin has shown that such disparate impact exists .

24

(Drogin Rpt. ¶¶ 53-55.) Dr. Baker’s analyses confirm Dr. Drogin’s conclusion that African

25

Americans are disciplined more than Whites by a statistically significant amount in b oth the

26 AGFS and DGO divisions. 28

27 28 Baker Rpt. Tbl. 6.1; Baker Dep. at 44:22-47:14, 50:16-51:9. Dr. Baker b elieves that this

28 disparity results from Minorities committing more infractions (Baker Dep. at 51:10 -53:17), even

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1

FedEx’s discipline system suffers from the same defects of manager discretion,

2 lack of systematic monitoring, and adverse impact that characterize its promotion, evaluation, and 3 compensation systems.29 FedEx argues that dis cipline claims, by their very nature, are “ill - suited

4 for class treatment.” (Prop. Ord. at 8.) This blanket statement ignores the cases in which

5 discipline claims have been certified. See, e.g., Chisholm v. USPS, 665 F.2d 482, 492 (4th Cir.

6 1981) (certifying class claim for discriminatory discipline); Battle v. White Cap, Inc., 1999 U.S.

7 Dist. LEXIS 4658 at *10, *13-14 (N.D. Ill., March 30, 1999) (certifying claim for discriminatory

8 application of a centralized discipline policy for tardiness and attendance); Binion v. Metropolitan

9 Pier and Exposition Auth., 163 F.R.D. 517, 521-24 (N.D. Ill. 1995) (certifying class claim for

10 discriminatory discipline under centralized policy for tardiness, unexcused absence, and other

11 infractions). It also disregards the reasons why certification was denied in the cases cited by 12 FedEx. 30 The statistical and anecdotal evidence on the record here supports a class claim for

13 disparate treatment and disparate impact in discipline for both the Minority Employ ee Class and 14 the African American Lower-Level Manager Class.31

15

The race of the disciplining manager is not an appropriate variable to consider . In

16 individual discrimination cases, courts have found that a supervisor may be liable for

17 discriminating against an employee who belongs to the same protected group. See, e.g., United

18 States v. Crosby, 59 F.3d 1133, 1135, n.4 (11th Cir. 1995) (noting that a Title VII violation may

19 occur even when supervisor or decision- maker is same race as alleged victim); Motley v. Tractor

20 though it would also be consistent with Plaintiffs’ allegations that Minority employees are disciplined more frequently than non- minorities for the same infractions. ( Id. at 59:15-63:10.)
21 29 See supra note 7. 30 See Pendleton v. Rumsfeld, 628 F.2d 102, 105 (D.C. Cir. 1980) (position of representatives
22 “markedly different” from that of other proposed class members; no statistical evidence presented); Alexander v. Gino’s, Inc., 621 F.2d 71, 74 (3d Cir. 1970) (insufficient facts in the
23 record to show common issues of law or fact; no statistics presented); Carson v. Giant Food, Inc., 187 F. Supp. 2d 462, 470 (D. Md. 2002) (no allegation of disparate impact); Lang v. Kansas City
24 Power & Light Co., 199 F.R.D. 640, 657 (W.D. Mo. 2001) (insufficient showing of commonality; statistical report not considered by court because of failure to disclose expert).
25 31 See, e.g., Hutchins Dep. at 203:20-204:25, Keit ner Reply Decl., Ex. 16; Satchell Dep. at 103:116, 124:12-24, Keitner Reply Decl., Ex. 21; Smith Dep. at 138:18 -140:19, Keitner Reply Decl.,
26 Ex. 22; Stevenson Dep. at 172:13-173:9, 197:12-198:24, Keitner Reply Decl., Ex. 24; Guerrero Dep. at 151:3-152:12, 154:14-156:14, Keitner Reply Decl., Ex. 13; Gonzales Dep. at 116:10 -
27 118:1, Keitner Reply Decl., Ex. 12 ; see also Declarations of D. Satchell ¶¶ 2, 15-17; S. Akins ¶ 12; Y. Canela ¶ 8; M. Griffin ¶ 12; E. Hill ¶ 6; I. James ¶ 15; Z. Latin ¶ 16; M. McCoy ¶¶ 10-12;
28 V. McCray, Sr., ¶ 14; R. Moncrief ¶¶ 6 -8; A. Norris ¶ 12.

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1 Supply Co., 32 F. Supp. 2d 1026, 1055-56 (S.D. Ind. 1998); Hansborough v. City of Elkhart

2 Parks & Rec. Dept., 802 F. Supp. 199, 201-06 (N.D. Ind. 1992). The same rationale applies with

3 even greater force in the class action context, in which courts rely on statistics as evidence that

4 racial discrimination is the employer’s “standard operating procedure.” Hazelwood School Dist.

5 v. United States, 433 U.S. 299, 307-8 (1977); see International Brotherhood of Teamsters v.

6 United States, 431 U.S. 324, 335 n.15 (1977) (“Proof of discriminatory motive … can in some

7 situations be inferred from the mere fact of differences in treatment.”) FedEx cites no case law

8 supporting its contention that the race of the disciplining manager is dispositive.

9 II. 10

RULE 23(a)(3)’s TYPICALITY REQUIREMENT IS SATISFIED. FedEx argues that there is “no class representative” for many of the class claims.

11 (Opp. at 31; Prop. Ord. at 6.) This misconstrues t he permissive standing and typicality

12 requirements for class actions. The proposed class representatives satisfy the applicable standard.

13

Rule 23(a) is satisfied when the class representative is a member of the class and is

14 subject to the discriminatory e mployment practices alleged on behalf of the class. There is no

15 requirement of identity; indeed, such a requirement would defeat the very purpose of the class

16 action procedure. The Ninth Circuit has held that “[u]nder the rule’s permissive standards,

17 representative claims are ‘typical’ if they are reasonably co -extensive with those of absent class

18 members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011,

19 1020 (9th Cir. 1998); see also Staton v. Boeing, 327 F.3d 938, 957 (9th Cir. 2003) (rejecting

20 defendant’s argument that each job category should have a class representative for each type of

21 discrimination claim alleged); Paige v. State of California, 291 F.3d 1141 (9th Cir. 2002) (single

22 class representative in class action challenging multiple examinations for multiple job moves);

23 Barefield v. Chevron U.S.A., 44 F.E.P. 1885, 1987 U.S. Dist. LEXIS 15125 at *14 (N.D. Cal.

24 Sept. 9, 1987) (“Typicality does not require that the representatives’ claims be identical to those
25 of the other class members.”).32
26 32 That FedEx found some class members willing to sign declarations indicating their satisfaction with the company does not warrant denying class certification. See Shores v. Publix Super
27 Markets, 1996 WL 407850 at *3 (M.D. Fla. March 12, 1996) (that “potential class members are satisfied with the status quo … cannot defeat class certification.”). At least 15 of FedEx’s
28 employee declarants are not even class members, because they are not African American or

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1

As this Court has previously stated, “[c]ourts have routinely found that allegations

2 that an employe r operated under a general policy of discrimination can justify a class comprised 3 of a diverse set of individuals.”33 As this Court held in Home Depot, “any potential problems

4 inherent in the fact that the proposed class in the present case is comprised of a diverse group of

5 plaintiffs can be remedied by bifurcation of the case into a liability phase (addressing issues

6 Latino. These declarations are suspect because they are all from current employees and because

7

the evidence establishes that FedEx’s method of gathering declarations was coercive. FedEx declarant Mike Aroz, an operations manager, testified that he was instructed during the work day

8

by his senior manager, Eva B rown, that he was “scheduled to do a declaration,” and that he had no idea what the declaration was about until he was called into her office to sign it. Aroz Dep. at

9

60:1-62:23. He does not recall making any edits or changes to the draft declaration tha t was provided to him, and he estimates that he reviewed the declaration for about ten minutes. Id. at

10

70:1-25; see also Diaz Dep. at 39:2-4 (declaration signed during work hours), 10:23-14:9 (FedEx did not inform him that he is a member of the proposed c lass or that Plaintiffs are challenging

11

FedEx practices), Keitner Reply Decl., Ex. 8; Barrett Dep. at 58:22 -23 (declaration signed during work hours), 57:15-23 (simply presented with declaration to sign with no prior explanation),

12

Keitner Reply Decl., Ex. 3. The declarations should be discounted accordingly. See Shores v. Publix Super Markets, 1996 WL 859985 at *4 (M.D. Fla. Nov. 25, 1996) (court was “highly

13

suspicious” of class member declarations taken by employer via ex parte communication that occurred in workplace); see also Siddiqui v. Regents of the Univ. of Cal., 2000 WL 33190435 at

14

*8 (N.D. Cal. Sept. 6, 2000) (citing Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 120203) (11th Cir. 1985)).

15

All of the employee declarations submitted by FedEx are of the cookie-cutter variety,

containing virtually identical language. See generally Planned Parenthood v. Doyle, 162 F.3d

16 463, 468 (7th Cir. 1998) (discrediting identical affidavits). This Court has viewed such declarations with skepticism in the past. Siddiqui v. Regents of the Univ. of Cal., 2000 WL

17 33190435 at *8 (N.D. Cal. Sept. 6, 2000). Declarations like FedEx’s should not be given weight because only FedEx has had an opportunity to discuss the litigation with the declarants, giving

18 declarants a one-sided view of the case. Siddiqui v. Regents of the Univ. of Cal., 2000 WL 33190435 at *8 (N.D. Cal. Sept. 6, 2000). Moreover, multiple declarants assert facts that are

19 consistent with Plaintiffs’ class claims. See, e.g., Declarations of F. Diaz ¶ 6 (failed BST); S. Jackson ¶ 30 (has heard that there is favoritism); H. Johnson ¶¶ 23, 27 (believes that white

20 employees are compensated more than minorities and that he has been disciplined for petty matters); A. De Pacheco ¶ 7 (failed BST when first taken); B. Reyes ¶ 19 (aware of favoritism for

21 white employee); K. Stevenson-Joyce ¶ 14, 18 (knows of minorities who unsuccessfully applied for position changes and knows of white employee who was selecte d for special assignments); F.

22 Leos ¶ 5 (did not pass BST); L. Barrett ¶ 4 (failed BST). For example, in deposition, FedEx declarant Feliz Diaz testified that he took the BST twice in the hopes of securing a promotion to

23 Courier, and that failing the BST prevented him from obtaining that job. Diaz Dep. at 23:12 -18, 27:6-17; see also Barrett Dep. at 34:11-15, 37:4-10 (prevented from applying for Courier position

24 because failed BST). 33 Butler v. Home Depot, 1996 WL 421436 at *4 (N.D. Cal. Jan. 25, 1996) (certifying class),

25 citing Richardson v. Byrd, 709 F.2d 1016, 1020 (5th Cir. 1983) (rejecting defendant’s argument

that an employee could not represent an applicant class); see also Hartman v. Duffey, 19 F.3d

26 1459, 1472 (D.D.C. 1994) (holding that a job-by-job requirement for typicality “would permit an

employer to defeat the broad enforcement of Title VII simply by administering different objective

27 tests as part of the application process for e ach job”); Dukes v. Wal-Mart, 222 F.R.D. 137, 167

(N.D. Cal. 2004) (holding that “there is no requirement that plaintiffs have a class representative

28 for each management category that they seek to represent”).

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1 common to the class such as injunctive relief) and a remedial phase (addressing the individual

2 compensatory damage claims).” Butler v. Home Depot, 1996 WL 421436 at *4 (N.D. Cal. Jan.

3 25, 1996). That is what Plaintiffs propose here.

4

The Rule 23(a) typicality requirements are met here with respect to the Minority

5 Hourly Employee Class, comprised of African American and Latino casual and permanent

6 employees who are all subject to the same discriminatory promotion, evaluation, compensation,

7 and discipline policies and practices that Valerie Brown, Rick Gonzales, Cynthia Gu errero,

8 Rachel Hutchins, Kelvin Smith, and Ken Stevenson complain of and seek to change. They are

9 also met with respect to the African American Lower -Level Manager Class, comprised of African

10 American operations managers who are all subject to the same discriminatory evaluation,

11 compensation, and discipline policies and practices that Kalini Boykin and Derrick Satchell 12 complain of and seek to change. 34

13

The requirement that applicants for Courier, Ramp Transport Driver, and

14 Customer Service Agent positions pass the BST forms part of the same pattern and practice of

15 discrimination that has adversely affected Valerie Brown, Rick Gonzales, Cynthia Guerrero,

16 Rachel Hutchins, Kelvin Smith, and Ken Stevenson. These class representatives can challenge

17 the BST as part and parcel of FedEx’s disregard for the adverse impact of its selection

18 procedures, its failure to validate those procedures, and its failure to search for alternatives with
19 less adverse impact as required by law. 35
20 34 FedEx asserts that some of the named plaintiffs’ claims of discriminatory discipline make them inadequate as class representatives. (Opp. at 34.) However, as FedEx acknowledges, these
21 claims are typical of the class members’ discip line claims. FedEx cites no authority prohibiting class members who have been disciplined from representing a class in an employment
22 discrimination case, especially where there are allegations of unfair discipline. 35 Moreover, Plaintiffs have filed a charge with the EEOC on behalf of Tyrone Merritt, a FedEx
23 employee who failed the BST and w as prevented from applying for Courier positions on that basis. (EEOC charge, Keitner Reply Decl., Ex. 25 .) Mr. Merritt is willing to serve as a class
24 representative if necessary. In addition, if the Court determines that class members who have failed the BST would best be represented by someone who has also failed the BST, the Court can
25 issue a notice informing class members that the BST has adverse impact and invitin g them to come forward. Because Plaintiffs do not have class member names and addresses, and because
26 class members are not aware that the BST has adverse impact, this may be the best method to locate additional class representatives if the Court deems thi s necessary. The Eleventh Circuit has
27 explicitly held that, when a court is presented with a motion for class certification, the court must first determine whether the case is appropriate for certification, and then “go on to decide whether
28 any of the named plaintiffs are qualified to serve as class representative and, if not qualified,

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1 III. RULE 23(a)(4)’s ADEQUACY REQUIREMENT IS SATISFIED.

2

FedEx argues that class certification is inappropriate because minority managers

3 evaluate and discipline members of the Minority Employee class (Prop. Ord. at 7)—an argument

4 rejected by the Ninth Circuit in Staton v. Boeing, 327 F.3d 938, 958-59 (9th Cir. 2003) (rejecting

5 adequacy challenge to class comprised of both nonsupervisory and supervisory employees).

6 Managers are not part of the Minority Employee class proposed here. Plaintiffs seek to certify a

7 separate Lower-Level Manager class comprised of African American Lower-Level managers.

8

There is also no basis for denying certification based on the purely speculative

9 notion that injunctive relief designed to promote fairness in t he application of FedEx’s personnel

10 policies will disadvantage those class members who have high performance review scores or have 11 not been disciplined.36

12 IV. 13

THE CLASSES MEET THE REQUIREMENTS OF RULE 23(b)(2). FedEx attempts to avoid certification of a 23(b)(2) class by arguing,

14 contradictorily, that (1) monetary relief “necessarily” predominates over the “impossible to

15 quantify” injunctive relief requested, and that (2) the Court cannot determine whether monetary 16 relief predominates over injunctive relief “because consideration of the former claims is 17 deferred.” (Opp. at 37.) The law does not require a quantitative comparison. The class 18 representatives seek to end FedEx’s pattern and practice of discriminating against them and 19 similarly situated employees. That is what Rule 23(b)(2) requires.

20

FedEx ignores the applicable standard in the Ninth Circuit, which has explicitly

21 refused to follow the Fifth Circuit case law cited by FedEx in its brief. See Opp. at 37, citing 22 Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998).37 The Ninth Circuit has warned

23 whether a member of the class is willing and qualified to serve as class representative.” Martinez-Mendoza v. Champion Int’l Corp., 340 F.3d 1200, 1216 (11th Cir. 2003) (emphasis
24 added). 36 Cummings v. Connell, 316 F.3d 886, 896 (9th Cir. 2002) (Ninth Circuit “does not favor denial
25 of class certification on the basis of speculative conflicts”); Social Services Union, Local 535 v. County of Santa Clara, 609 F.2d 944, 948 (9th Cir. 1979) (“Mere speculation as to conflicts that
26 may develop at the remedy stage is insufficient to support denial of class certification.”), citing Blackie v. Barrack, 524 F.2d 891, 909 (9th Cir. 1975) (same).
27 37 FedEx attempts to dismiss all injunctive relief as “precatory” based on the Ninth Circuit’s statement in Staton v. Boeing that “much” of the injunctive relief under the rejected consent
28 decree in that case “appears to be largely precatory in nature.” Staton v. Boeing, 327 F.3d 938,

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Case 3:03-cv-02659 Document 248 Filed 12/17/2004 Page 28 of 28

1 Todd M. Schneider (SBN 158253) Guy B. Wallace (SBN 176151)
2 Joshua Konecky (SBN 182897) SCHNEIDER & WALLACE
3 180 Montgomery Street, Suite 2000 San Francisco, CA 94104
4 Telephone: (415) 421-7100 5 Facsimile: (415) 421-7105
6

James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452) Lexi J. Hazam (SBN 224457) Chimène I. Keitner (SBN 226948) Nirej S. Sekhon (SBN 213358) LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

7 Michael S. Davis (SBN 160045)

John Burris (SBN 69888)

LAW OFFICES OF MICHAEL S. DAVIS LAW OFFICES OF JOHN BURRIS

8 345 Hill Street

7677 Oakport Bldg., Suite 1120

San Francisco, CA 94109

Oakland, CA 94612

9 Telephone: (415) 282-4315

Telephone: (510) 839-5210

Facsimile: (415) 358-5576

Facsimile: (510) 839-3882

10

Waukeen Q. McCoy (SBN 168228)

Kay McKenzie Parker (SBN 143140)

11 LAW OFFICES OF WAUKEEN Q.

LAW OFFICES OF KAY MCKENZIE

McCOY

PARKER

12 703 Market Street, Suite 1407

1318 East Shaw Avenue, Suite 415

San Francisco, CA 94103

Fresno, CA 93710

13 Telephone: (415) 675-7705

Telephone: (559) 222-1509

Facsimile: (415) 675-2530

Facsimile: (559) 222-9045

14

Attorneys for Plaintiffs and the Proposed Classes

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case3:04-cv-00098-SI Document1458 Filed07/17/09 Page1 of 19

1 Sanford Jay Rosen – 62566

2

Holly M. Baldwin – 191317 Kenneth M. Walczak – 247389

3 ROSEN, BIEN & GALVAN, LLP 315 Montgomery Street, 10th Floor
4 San Francisco, California 94104

5

Telephone: (415) 433-6830 Facsimile: (415) 433-7104

6 srosen@rbg-law.com

hbaldwin@rbg-law.com 7 kwalczak@rbg-law.com

8 Attorneys for Kay McKenzie Parker
9

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13 14 EDWARD ALVARADO, et al.,

15

Plaintiffs,

v. 16

17 FEDEX CORPORATION, a Delaware corporation, dba FEDEX EXPRESS,
18

19

Defendant.

Case No. C 04-0098 SI Case No. C 04-0099 SI (White v. FedEx)

20 EDWARD ALVARADO, CHARLOTTE BOSWELL,
21

22

Plaintiffs,

v.

23

24

WAUKEEN McCOY, KAY M. PARKER, MICHAEL DAVIS,

25 Defendants.
26

Case No. C 09-0485 SI
KAY MCKENZIE PARKER’S REPLY IN SUPPORT OF MOTION FOR DECLARATORY RELIEF
Hearing Date: July 31, 209 Time: 9:00 a.m. Courtroom: 10, 19th Floor Judge: Hon. Susan Illston

27

28

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1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION......................................................................................................................... 1

4 ARGUMENT ................................................................................................................................ 3

5 I.
6

THE COURT HAS THE POWER TO ISSUE THE REQUESTED DECLARATION OR OTHER APPROPRIATE ORDER................................................ 3

7

A. Ms. Parker Has Satisfied the Requirements for Entry of an Order that

8

Her Statutory Fees for Work on Behalf of Alvarado and Boswell

Cannot Be Settled Without Her Consent. ............................................................... 3

9

B. The Issues Raised in Ms. Parker’s Motion Are Ripe.............................................. 5 10

11

C. The Court Should Not Defer Issuing the Order that Ms. Parker Seeks. ................. 7

12
13 II.
14
15
16 III.
17

D. The Court Need Not Parse the Contract Language Cited in the Complaint................................................................................................................ 9
THE STATUTORY FEES BELONG TO MS. PARKER UNLESS, DUE TO THE APPEALS OF THE ALVARADO AND BOSWELL JUDGMENTS, A FINAL ORDER IS ENTERED THAT FEDEX HAS NO LIABILITY TO ALVARADO AND BOSWELL ON THEIR CLAIMS. ................................................. 10
THERE IS NO RISK THAT MS. PARKER WILL RECEIVE DOUBLE RECOVERY OR AN UNCONSCIONABLE FEE. ........................................................ 11

18

A. If She Is Appropriately Compensated by Her Statutory Attorney’s

19

Fees, Ms. Parker Will Waive Any Share of Plaintiffs’ Damages or Will

Reimburse Any Plaintiff Who Prevailed on His or Her Claims Against

20

FedEx. ................................................................................................................... 11

21

B. This Court Already Has Made it Clear that It Will Not Allow Improper

22

Double Recovery or an Unconscionable Fee........................................................ 13

23 CONCLUSION ........................................................................................................................... 15

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2 Cases

Page

3 Bankes v. Lucas,

4

9 Cal. App. 4th 365 (1992) ................................................................................................... 13

5 Blanchard v. Bergeron, 489 U.S. 87 (1989)................................................................................................................ 12
6

7

Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988).............................................................................................................. 13

8

Cazares v. Saenz,

9

208 Cal.App.3d 279 (1989) .................................................................................................. 10

10 Celotex Corp. v. Catrett,

11

477 U.S. 317 (1986)................................................................................................................ 5

12 Cooper v. Singer,

719 F.2d 1496 (10th Cir. 1983) ............................................................................................ 14 13

14

Crowley Maritime Corp. v. Boston Old Colony Ins. Co., 158 Cal.App.4th 1061 (2008) ................................................................................................. 8

15

Davis v. Yageo Corp.,

16

481 F.3d 661 (9th Cir. 2007) .................................................................................................. 7

17 Dunn v. H.K. Porter Co.,

18

602 F.2d 1105 (3rd Cir. 1979) .............................................................................................. 14

19 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)................................................................................................................ 8
20

21

Flannery v. Prentice, 26 Cal.4th 572 (2001) .................................................................................................... passim

22 Folsom v. Butte County Assn. of Governments,

23

32 Cal.3d 668 (1982) ............................................................................................................ 11

24 Horsford v. Bd. of Trustees of Cal. State Univ.,

25

132 Cal.App.4th 359 (2005) ........................................................................................... 12, 13

26 27 28
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International Bhd. of Teamsters v. Eastern Conference of Teamsters, 160 F.R.D. 452 (S.D.N.Y. 1995) ........................................................................................ 4, 5
Jackson v. United States, 881 F.2d 707 (9th Cir. 1989) ................................................................................................ 14 ii
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1 Jenkins v. Whittaker Corp.,

2

785 F.2d 720 (9th Cir. 1986) .................................................................................................. 7

3

Kam-Ko Bio-Pharm Trading Co. Ltd-Australasia v. Mayne Pharma (USA) Inc.,

4 560 F.3d 935 (9th Cir. 2009) .............................................................................................. 4, 5

5 Ketchum v. Moses,

6

24 Cal.4th 1122 (2001) ......................................................................................................... 13

7 Lyons v. Chinese Hospital Ass’n, 136 Cal.App.4th 1331 (2006) ............................................................................................... 11
8

Maryland Casualty Co. v. Pacific Coal & Oil Co.,

9

312 U.S. 270 (1941)................................................................................................................ 2

10 MedImmune, Inc. v. Genentech, Inc., 11 549 U.S. 118 (2007)................................................................................................................ 2

12 Phillips v. State Farm Mut. Auto. Ins. Co.,

13

437 F.2d 365 (5th Cir. 1971) ................................................................................................ 13

14 Schlesinger v. Teitelbaum, 475 F.2d 137 (3rd Cir. 1973) ............................................................................................... 14

15

Venegas v. Mitchell,

16

495 U.S. 82 (1990)................................................................................................................ 12

17 Venegas v. Skaggs, 18 867 F.2d 527 (9th Cir. 1989) ................................................................................................ 14

19 Weeks v. Baker & McKenzie, et al.,

20

63 Cal. App. 4th 1128 (1998) ............................................................................................... 13

21 Rules

22 California Rules of Professional Conduct, Rule 2-107 (1975) .................................................. 14

23 Fed. R. Civ. P. 56 ......................................................................................................................... 5

24 Model Code of Professional Responsibility, Canon 13 (1980).................................................. 14
25 Other Authorities 26
Schwarzer et al., 27 California Practice Guide, Civil Proc. Before Trial, §§ 14:208, 14:225 ......................... ...... 4

28

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1

INTRODUCTION

2

Ms. Parker’s property right to her statutory fees vested when the Court entered the judgments

3 in favor of plaintiffs Alvarado and Boswell. The amount of her fees is the only remaining issue. As a

4 party-intervenor in the underlying action, her rights to that property are fully protected unless a court

5 of competent jurisdiction (either the Ninth Circuit, or this Court pursuant to reversal and remand by the

6 Ninth Circuit) enters a final order of no liability on the Alvarado and Boswell claims.

7

Contrary to the oppositions to Ms. Parker’s Motion for Declaratory Relief, this Court is fully

8 empowered to order that her statutory attorney’s fees under California’s FEHA cannot be settled out

9 from under her without her consent. By deciding her motion the Court would clarify for all parties

10 how they can proceed with any post-judgment settlement. Delaying resolution of her motion, as the

11 opposing parties propose, see FedEx Opp. at 3:15-4:2 (delay until exhaustion of all possible appeals);

12 McCoy Opp. at 2:1-6 (advocating “some sort of dispute resolution” following settlement);

13 Alvarado/Boswell Opp. at 6:26-7:4 (advocating full resolution of declaratory relief action first), likely

14 would impede early settlement and cause expenditure of needless judicial resources.

15

The order requested is necessary and appropriate given the unusual posture of the cases before

16 this Court and the Ninth Circuit. There is no risk that, by providing the relief requested, Ms. Parker

17 will receive an unconscionable or duplicative fee through a statutory fee award and a share of the

18 plaintiffs’ damages. As she has made clear throughout these proceedings, Ms. Parker seeks no such

19 result and views her quantum meruit claims as a failsafe protection of her right to compensation for her

20 work, given the extraordinary nature of the fees proceedings. Moreover, the Court has demonstrated in

21 the underlying actions and the related Satchell action that it will not permit any such result.

22

Whether characterized as declaratory relief or judgment, summary or partial summary

23 judgment, or summary adjudication of an important legal issue, the Court should issue an order

24 reaffirming Ms. Parker’s vested property right to statutory attorney’s fees. Such an order would

25 resolve the issues raised in the Alvarado/Boswell declaratory relief action with respect to Ms. Parker

26 and would guide FedEx, Alvarado, and Boswell as to any settlement pending the appeals from the

27

28

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1 Alvarado and Boswell judgments.1 The purpose of declaratory relief is to determine rights before there

2 is an actual injury. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) (case-or-controversy

3 requirement in declaratory relief actions is “whether the facts alleged, under all the circumstances,

4 show that there is a substantial controversy, between parties having adverse legal interests, of sufficient

5 immediacy and reality to warrant relief”), quoting Maryland Casualty Co. v. Pacific Coal & Oil Co.,

6 312 U.S. 270, 273 (1941).

7

All the oppositions misconstrue the purpose of Ms. Parker’s motion, the theory behind it, and

8 the law supporting her position. A syllogism may facilitate the process at this point.

9

• Premise: Alvarado and Boswell prevailed after separate jury trials, and the Court

10

entered judgments in their favor.

11

• Premise: On the basis of those judgments, FedEx must pay attorney’s fees under the

12

FEHA, unless this Court or an appellate court enters a final order that FedEx is not

13

liable to Alvarado and Boswell on their claims.

14

• Premise: Under California law, FedEx owes the statutory fees, absent an “enforceable

15

agreement to the contrary,” to the attorney who “labored to earn them.” Flannery v.

16

Prentice, 26 Cal.4th 572, 590 (2001).

17

• Premise: Ms. Parker represented Alvarado and Boswell and performed work as their

18

attorney to advance their claims against FedEx. She is the attorney who “labored to

19

earn” the fees, and as the Court determined, there is no “agreement to the contrary”

20

altering Ms. Parker’s right to statutory attorney’s fees for her work.

21

• Conclusion 1: It follows that the statutory attorney’s fees are Ms. Parker’s property.

22

• Premise: Under California and federal law, upon entry of a judgment the property right

23

to statutory fees vests in the holder even though the amount is yet to be determined.

24

• Premise: The Court correctly held that Ms. Parker had standing to pursue and protect

25

26 1 Ms. Parker filed her motion in both the declaratory relief action, No. 09-0485 SI (Alvarado v. McCoy), and the

27

underlying action, No. 04-0098 SI (Alvarado v. FedEx)/04-0099 SI (White v. FedEx). This Reply responds to Oppositions filed in both cases. All Docket Numbers refer to Case No. 04-0098 SI, except where otherwise

28 indicated.

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1

her rights to statutory attorney’s fees.

2

• Conclusion 2: Therefore, Ms. Parker’s right to statutory attorney’s fees is vested.

3

• Premise: Plaintiffs (or their attorneys) in FEHA cases prevail by settlement for

4

purposes of entitlement to statutory attorney’s fees.

5

• Premise: The Court correctly granted Ms. Parker leave to intervene as a full party, to

6

protect her vested right to statutory attorney’s fees.

7

• Premise: An intervenor has the same rights as all other parties to an action.

8

• Premise: Parties to an action are not bound by settlements absent their consent.

9

• Conclusion 3: No settlement can extinguish Ms. Parker’s vested right to statutory attorney’s

10

fees unless she consents to it.

11

ARGUMENT

12 I. 13 14 15

THE COURT HAS THE POWER TO ISSUE THE REQUESTED DECLARATION OR OTHER APPROPRIATE ORDER.
A. Ms. Parker Has Satisfied the Requirements for Entry of an Order that Her
Statutory Fees for Work on Behalf of Alvarado and Boswell Cannot Be Settled Without Her Consent.

16

The Court has the power to issue the order Ms. Parker seeks. See, e.g., Order Adopting Special

17 Master’s April 7, 2008 Order Regarding Parker’s Standing, filed 6/5/08 (Docket No. 1145) (“Order

18 Adopting SM Order”) (Court’s decision on standing, establishing Ms. Parker’s entitlement to statutory

19 attorney’s fees); Order Granting [inter alia] Defendant [FedEx]’s Motion for Declaratory Relief, filed

20 1/27/09 (Docket No. 1279) (granting declaratory relief as to seven settling plaintiffs). See also

21 Parker’s Post-Hearing Brief, filed 5/1/09 (Docket No. 1407), at 12:17-13:15 (equity and judicial

22 economy weigh in favor of exercise of ancillary jurisdiction to resolve fees issues).

23

Like FedEx’s earlier-filed motion for declaratory relief, Ms. Parker’s motion seeks declaratory

24 or summary relief as to her entitlement to statutory fees in the event of a post-judgment settlement of

25 the Alvarado and Boswell claims. FedEx’s motion involved the issue of entitlement after pre-

26 judgment settlements; Ms. Parker seeks a declaration on her rights in the event of a post-judgment

27 settlement to which she does not consent.

28

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1

Alvarado and Boswell argue that this motion is properly a motion for summary judgment in

2 Ms. Parker’s favor. Alvarado/Boswell Opp. at 3:8-26. They also incorrectly contend that “the issues

3 raised by Ms. Parker’s motion are not appropriate for summary judgment[.]” Alvarado/Boswell Opp.

4 at 3:24-25. But there are no genuine issues of material fact, and an appropriate order would resolve

5 the claims against her in the Alvarado/Boswell declaratory relief action, Case No. 09-0485. Such an

6 order also would assist all parties, by guiding any post-judgment settlement negotiations.

7

The three Oppositions reveal no genuine issues of material fact.

8

• The language of the contracts retaining Ms. Parker is undisputed.

9

• That the Court has ordered that Ms. Parker owns the statutory attorney’s fees from

10

FedEx for her work representing Alvarado and Boswell is undisputed.

11

• That Ms. Parker has a vested property interest in statutory fees, unless a court orders

12

FedEx free of liability on the Alvarado and Boswell claims, is undisputed (despite

13

FedEx’s arguments that the fees have yet to be quantified).

14

• Ms. Parker’s status as a full party-intervenor is undisputed.

15

• The possibility that Alvarado and Boswell may try to settle their claims with FedEx

16

during the pending appeals is conceded.

17

The Oppositions dispute only Ms. Parker’s application of the law to these undisputed facts,

18 making this matter ripe for summary disposition. See Schwarzer et al., CALIFORNIA PRACTICE GUIDE:

19 CIVIL PROC. BEFORE TRIAL, §§ 14:208, 14:225 (summary judgment proper where dispute is of a type

20 normally decided by the court and not a jury, such as a dispute over a “purely legal issue.”) And as

21 discussed below, the Oppositions do not dispute most of Ms. Parker’s legal analysis.

22

The cases cited by Alvarado and Boswell do not establish that the order Ms. Parker seeks is

23 improper. See Alvarado/Boswell Opp. at 3:10-4:12. Unlike the movant in Kam-Ko Bio-Pharm

24 Trading Co. Ltd-Australasia v. Mayne Pharma (USA) Inc., 560 F.3d 935 (9th Cir. 2009), Ms. Parker is

25 not seeking an evidentiary hearing to establish her claims. Ms. Parker agrees that her entitlement to

26 statutory fees in the event of a settlement may be resolved “without a trial, let alone an evidentiary

27 hearing[.]” Id. at 943. Unlike the movant for declaratory judgment in International Bhd. of Teamsters

28 v. Eastern Conference of Teamsters, 160 F.R.D. 452 (S.D.N.Y. 1995), Ms. Parker has complied with

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1 the requirements of Fed. R. Civ. P. 56. She has “inform[ed] the district court of the basis for [her]

2 motion [see, e.g., Docket No. 1449, at 1:1-20], and identif[ied] those portions of the [the record], if

3 any, which [she] believes demonstrate the absence of a genuine issue of material fact [see Docket No.

4 1449, at 1:21-24].” International Bhd. of Teamsters, 160 F.R.D. at 456, quoting Celotex Corp. v.

5 Catrett, 477 U.S. 317, 323 (1986); Fed. R. Civ. P. 56(c).

6

The Teamsters case actually validates Ms. Parker’s approach. As Alvarado and Boswell

7 concede, Alvarado/Boswell Opp. at 3:23-24, in essence Ms. Parker has moved “for summary judgment

8 on an action for declaratory judgment.” Indeed she has always described her declaratory relief motion

9 as dispositive of the issues in the declaratory relief action. See Joint Case Management Statement,

10 filed 5/15/09 (Case No. 09-0485, Docket No. 30) (“CMC Statement”) ¶ 4; Parker’s Answer to

11 Amended Complaint (Case No. 09-0485, Docket No. 32), ¶ 13.

12

Ms. Parker need not satisfy the requirements of filing a separate action and identifying a basis

13 for jurisdiction, as Alvarado and Boswell have already done so, by filing their declaratory relief action.

14 See Kam-Ko, 560 F.3d at 943 (district court properly construed motion for declaratory judgment as a

15 motion for summary judgment on previously-filed action for declaratory judgment). And cf. McCoy

16 Opp. at 1, n.1 (Declaratory Judgment Act requires “independent jurisdictional basis” for declaratory

17 relief) with Amended Complaint, Case No. 09-0485, ¶ 1 (asserting supplemental jurisdiction); CMC

18 Statement, ¶ 1 (same).

19

B. The Issues Raised in Ms. Parker’s Motion Are Ripe.

20

Ms. Parker does not seek an “advisory opinion” on an “unripe” matter. Cf. McCoy Opp. at

21 1:12-2:6. She seeks a declaration or an order that FedEx and Alvarado and Boswell cannot now

22 extinguish her vested property interest to the statutory attorney’s fees to which she is entitled unless

23 she consents by participating in a settlement, or unless as a result of the pending appeals this Court or

24 an appellate court enters an enforceable final order that FedEx is not liable to Alvarado and Boswell on

25 their claims.

26

Alvarado and Boswell agree that the issue of the parties’ entitlement in the event of a post-

27 judgment settlement is ripe, and that a declaration should issue in order to allow settlement

28 negotiations to proceed. See Amended Complaint, Case No. 09-0485, ¶¶ 13-14 (declaration necessary

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1 to resolve potential “interpretations” of legal services agreements). The alternative is that there will be

2 lengthy contested proceedings down the line like those that followed FedEx’s (thus-far successful)

3 efforts to “freeze out” Ms. Parker from settlement negotiations and her statutory fees for work on

4 behalf of seven settling plaintiffs. See Baldwin Decl. ISO Opp. to Renewed Motion for Decl. Relief,

5 filed 6/24/08 (Docket No. 1168), and Exhibits (detailing concerted effort to exclude Ms. Parker from

6 settlement negotiations). See also Order Re: April 23, 2009 Hearing, filed 4/17/09 (Docket No. 1383),

7 at 1:25-2:1 (“these matters have been pending for a long time,” i.e., since at least December 13, 2007,

8 when FedEx filed settlement agreements under seal); Minute Order, filed 7/16/07 (Docket No. 897)

9 (“The parties shall prepare a plan to resolve Ms. Parker’s fees issues prior to proceeding[.]”)

10

McCoy’s argument that Ms. Parker may not “seek reconsideration … in this Court” of the order

11 denying her standing to seek statutory fees for her work on behalf of the seven settling plaintiffs is both

12 misplaced and ironic. McCoy Opp. at 3:8. It is misplaced because reconsideration of that order is not

13 necessary for the Court to declare Ms. Parker’s rights that flow from the separate order that she owns

14 the statutory fees for her work on behalf of Alvarado and Boswell. It is ironic because it was McCoy

15 who first raised the issue of the enforceability of Ms. Parker’s retainer agreements, by arguing that Ms.

16 Parker’s contracts with the settling plaintiffs were voidable or void ab initio. Cf. Transcript of 2/5/09

17 CMC at 21:14-17 (“MR. MCCOY: … First of all, it’s not conceded by the clients that Kay McKenzie

18 Parker has a contract with the clients. She does not have a contract with the clients.”); Transcript of

19 4/23/09 Hearing (filed as Docket No. 1442) at 66:15-68:6; Parker’s Post-Hearing Brief, filed 5/1/09

20 (Docket No. 1407), at 3:1-5:24; McCoy Memo in Response, filed 5/15/09 (Docket No. 1421), at 2:16-

21 3:8 & 6:19 with McCoy Opp. at 3:3-5 (the Court should not “revisit a ruling it made after affording the

22 parties a full opportunity to present their positions”).

23

In any event, Ms. Parker had valid contracts with Alvarado and Boswell. See Parker’s Post-

24 Hearing Brief, filed 5/1/09 (Docket No. 1407), at 2:1-6:25 (summarizing evidence that all contracts

25 were valid and enforceable). And Alvarado and Boswell expressly admitted that they had fee

26 agreements with Ms. Parker. See Amended Complaint, filed 2/20/09 (Case No. 09-0485 SI, Docket

27 No. 5), ¶¶ 4-5. Again, this does not present a genuine issue of material fact.

28

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1

Nonetheless, if the Court now were to reach a contrary decision (e.g., that Ms. Parker’s

2 agreements with Alvarado and Boswell were void ab initio), it would not constitute “reconsideration”

3 of anything. The Court has not yet expressly reached the issue in any order. See Parker’s Motion for

4 Declaratory Relief, filed 6/26/09 (Docket No. 1449), at 14:23-16:14.

5

Under such circumstances, a party to the appeal in the Ninth Circuit from the Court’s Order

6 concerning the seven settling plaintiffs, see Ninth Circuit Case Nos. 09-15415 and 09-15417, could ask

7 the Ninth Circuit to remand for the Court to reconsider its earlier Order related to the settling plaintiffs

8 in the underlying action. See Jenkins v. Whittaker Corp., 785 F.2d 720, 722, n.2 (9th Cir. 1986)

9 (granting motion for limited remand after district court indicated willingness to consider and

10 inclination to grant postjudgment motion for reconsideration). See also Davis v. Yageo Corp., 481

11 F.3d 661, 685 (9th Cir. 2007) (describing process for seeking limited remand).

12

C. The Court Should Not Defer Issuing the Order that Ms. Parker Seeks.

13

Delaying resolution of Ms. Parker’s motion, as the opposing parties propose, see FedEx Opp. at

14 3:15-4:2; McCoy Opp. at 2:1-6; Alvarado/Boswell Opp. at 6:26-7:4, likely would cause expenditure of

15 needless judicial resources hereafter. Deciding Ms. Parker’s motion would clarify for all parties how

16 they can proceed with any post-judgment settlement.

17

The questions posed by Alvarado and Boswell do not impede the immediate resolution of Ms.

18 Parker’s motion. See Alvarado/Boswell Opp. at 7:12-21. In fact, there are simple and straightforward

19 answers to these questions, none of which raise a genuine issue of material fact.

20

Q: How are plaintiffs and FedEx supposed to know whether a settlement might “diminish or

21

otherwise affect” Parker’s right to statutory fees?

22

A: “Diminish” can be eliminated from the Order; “Affect” in this context means “adversely

23

affect.” See Conclusion, infra, at 15.

24

Q: Are plaintiffs and FedEx required to have Parker “fully participate,” pursuant to a Court

25

order that grants her de facto veto power, in any and all settlement negotiations?

26

A: FedEx, Alvarado, and Boswell may settle any claim except Ms. Parker’s statutory attorney’s

27

fees claim. To settle her statutory fees claim, they need to negotiate with her and have her

28

sign on to any settlement provisions disposing of her fees claim.

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1

Q: If not, what are the consequences if plaintiffs and FedEx enter into a settlement that is

2

subsequently determined to “affect” Parker’s statutory fees?

3

A: Any settlement entered without Ms. Parker’s consent would not affect her statutory fees

4

claim. If otherwise proper, the settlement would be fully enforceable between the plaintiffs

5

and FedEx. “[A] contract cannot bind a nonparty.” Crowley Maritime Corp. v. Boston

6

Old Colony Ins. Co., 158 Cal.App.4th 1061, 1069 (2008), citing EEOC v. Waffle House,

7

Inc., 534 U.S. 279, 294 (2002).

8

Similarly, the Court should disregard Alvarado and Boswell’s empty threat to relitigate prior

9 proceedings. See Alvarado/Boswell Opp. at 5:18-22 (contending that plaintiffs “reserve the right to

10 challenge [the Special Master’s findings] on the grounds that they were denied due process”).

11 Plaintiffs have no such right; they cannot challenge the result of multiple proceedings in which they

12 fully participated through their counsel of record.

13

McCoy’s proposal that the Court delay decision until the Ninth Circuit rules on the pending

14 Alvarado and Boswell appeals follows a familiar pattern: whenever a party files a motion, McCoy

15 suggests that the Court defer to actual or potential litigation in another forum. The California courts

16 twice have rejected Mr. McCoy’s efforts, and deferred to this Court. See, e.g, Parker Decl. filed

17 1/13/09 (Docket No. 1269), Exhs. C and D (two state court orders deferring to this Court, despite Mr.

18 McCoy’s efforts to the contrary); 2/25/09 Order at 6:24-7:1 (“[A]rbitration of this one issue, isolated

19 from the balance of this complex web of competing claims to the interpled funds, would be

20 extraordinarily difficult. It would also risk further delay[.]”); Order [Denying Plaintiffs’ Motion to

21 Extinguish Liens], filed 5/20/08 (Docket No. 1135).

22

FedEx complains that the issues presented by Ms. Parker’s motion arose because the Court

23 erroneously “grant[ed] Parker (as a fired attorney) independent ‘standing’ to seek fees[.]” FedEx Opp.

24 at 3:3-5. FedEx surely cannot now seek reconsideration of that Order. Moreover, Flannery does not

25 require that the attorney who labored to earn the fees must try the case. See SM Order, at 15:2-16:16

26 (rejecting McCoy and FedEx position that only attorneys of record at trial are “prevailing parties”).

27

FedEx’s attempt to re-characterize the Court’s order granting Ms. Parker standing, by calling it

28 non-“collateral” is yet another invitation to delay. FedEx Opp. at 2, n.2. The finality of this Court’s

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1 orders does not depend on FedEx’s alleged “rights to challenge [the] Order” in any forum in

2 perpetuity. Similarly, FedEx’s argument that the Court should stay its hand pending the outcome of

3 the Ninth Circuit appeals from any order this Court will make hereafter concerning the amount of Ms.

4 Parker’s statutory fees evokes the Yiddish word chutzpah. FedEx has successfully delayed Ms.

5 Parker’s statutory fees proceedings in this court (we suggest) beyond all reason, in an effort to push its

6 financial advantage over Ms. Parker and avoid ad infinitum payment of the statutory fees to which she

7 is entitled. See Chronology, attached hereto as Appendix A. See also 12/14/07 Tr. at 24:17-18 (“THE

8 COURT: I will tell you, I haven’t seen a case like this very often.”).

9

FedEx also misrepresents that an issue is pending regarding Ms. Parker’s “fee splitting

10 agreements with Boswell and Alvarado.” FedEx Opp. at 2:20-21. Such an agreement likely would be

11 illegal. See Flannery, 26 Cal.4th at 587. Ms. Parker has no agreement to split attorney’s fees with

12 any plaintiff.

13

Finally, Ms. Parker’s ownership of the statutory fees claim no more “negatively affect[s] the

14 parties’ ability to settle their disputes on appeal,” FedEx Opp. at 3:8-9, than would be the case of

15 settlement of any multiparty case that is pending on appeal. In such cases, parties can reach

16 settlements that bind only some of the parties; or they can settle with all parties who have interests in

17 the claims. Surely FedEx is capable of choosing which avenue to pursue, evaluating and factoring in

18 Ms. Parker’s statutory fees if it chooses a separate settlement with Alvarado and/or Boswell. Likewise,

19 Alvarado and Boswell, represented by competent counsel, can evaluate their potential exposure to Ms.

20 Parker’s quantum meruit claim, given her comprehensive briefing on the subject, her consistent

21 commitment not to take double recovery (see Section III-A, infra, at 11-13), and the Court’s

22 jurisdiction and power to ensure that Ms. Parker does not receive an unconscionable fee (see Section

23 III-B, infra, at 13-15).

24

D. The Court Need Not Parse the Contract Language Cited in the Complaint.

25

Alvarado and Boswell focus unduly on the specific language of the contracts retaining Ms.

26 Parker, to express their fears about unconscionable or double recovery of both a contingent fee and a

27 statutory fee. See Alvarado/Boswell Opp. at 6:4-20. These are red herrings. As a discharged attorney,

28 Ms. Parker does not claim contingent fees out of the damages under the contracts that Alvarado and

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1 Boswell renounced. She claims fees out of damages awards only in quantum meruit. The language of

2 the contracts does not control such an award, except by limiting the total fees to be taken from

3 damages. See, e.g., Cazares v. Saenz, 208 Cal.App.3d 279, 289 (1989) (quantum meruit award may be

4 unconscionable if it exceeds contingency). Ms. Parker seeks no double or unconscionable recovery of

5 fees, which are wholly within the court’s control. See Section III, infra, at 11-15.

6 II. 7 8

THE STATUTORY FEES BELONG TO MS. PARKER UNLESS, DUE TO THE APPEALS OF THE ALVARADO AND BOSWELL JUDGMENTS, A FINAL ORDER IS ENTERED THAT FEDEX HAS NO LIABILITY TO ALVARADO AND BOSWELL ON THEIR CLAIMS.

9

The essence of Ms. Parker’s Declaratory Relief motion is encapsulated in the syllogism, supra,

10 at 2-3, and as annotated below:

11

• The entry of the Alvarado and Boswell final judgments established a right to statutory

12

attorney’s fees under the FEHA. See Motion for Declaratory Relief, filed 6/26/09

13

(Docket No. 1449) (“Decl. Relief Mot.”), at 7:19-8:16.

14

• As the Court decided under the contracts between Ms. Parker and the two judgment

15

plaintiffs, Ms. Parker owns that right. Id. at 10:18-14:2.

16

• As the Court determined, the contracts retaining Ms. Parker were silent on the subject of

17

statutory fees. Id. at 14:2-14:22.

18

• If those contracts are unenforceable for any reason, Ms. Parker still owns those statutory

19

attorney’s fees. Id. at 14:23-16:5.

20

• Under California property law, Ms. Parker’s entitlement to statutory fees became a

21

choate, or vested, property right when the judgments were entered and/or when the

22

Court ordered her intervention. Id. at 7:26-8:16.

23

• Federal interest-running and bankruptcy law recognize that Ms. Parker’s property right

24

is choate or vested. Id. at 9:3-20.

25

• Ms. Parker’s vested rights to statutory attorney’s fees may not be extinguished, except

26

by a final order that FedEx is liable to no one as to Alvarado and Boswell’s claims, see,

27

e.g., FedEx Opp. at 1:23-24 (“As plaintiff Evans is no longer a ‘prevailing party’ under

28

California Government Code section 12965, the special master denies Parker’s fee

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1

petition in Evans.”), quoting SM Order, Docket No. 1062, at 3:6-11.

2

• The Court’s Order that Ms. Parker may intervene under Fed.R.Civ.P. 24 gives Ms.

3

Parker all of the rights enjoyed by any party to protect her property that is at stake in the

4

litigation. Decl. Relief Mot. at 8:17-9:2.

5

• Because Ms. Parker has such rights, no other party may compromise or extinguish her

6

choate and vested rights to statutory attorney’s fees without her consent. Id. at 10:6-17;

7

Phillips v. State Farm Mut. Auto. Ins. Co., 437 F.2d 365, 369 (5th Cir. 1971) (“A

8

collusive judgment is open to attack whenever and wherever it may come in conflict

9

with the rights or the interest of third persons. Fraud is not a thing that can stand, even

10

when robed in judgment.”).

11

• Any settlement nevertheless would render Ms. Parker a prevailing party entitled to

12

statutory fees under California and federal law. Decl. Relief Mot. at 15:20-22, citing

13

Lyons v. Chinese Hospital Ass’n, 136 Cal.App.4th 1331, 1345 (2006) (“It is undisputed

14

that relief obtained through a settlement may qualify a plaintiff as the prevailing

15

party[.]”); Folsom v. Butte County Assn. of Governments, 32 Cal.3d 668, 685 (1982)

16

(statutory fees properly awarded unless expressly or by necessary implication excluded

17

by a stipulating party).

18 III. 19 20 21

THERE IS NO RISK THAT MS. PARKER WILL RECEIVE DOUBLE RECOVERY OR AN UNCONSCIONABLE FEE.
A. If She Is Appropriately Compensated by Her Statutory Attorney’s Fees, Ms.
Parker Will Waive Any Share of Plaintiffs’ Damages or Will Reimburse Any Plaintiff Who Prevailed on His or Her Claims Against FedEx.

22

Alvarado and Boswell say they are concerned that Ms. Parker not receive double recovery by

23 way of statutory fees and a share of their damages. They place emphasis on the parenthetical in the

24 Flannery holding that “attorney fees awarded pursuant to section 12965 (exceeding fees already paid)

25 belong, absent an enforceable agreement to the contrary, to the attorneys who labored to earn them.”

26 Alvarado/Boswell Opp. at 5:2-4 (emphasis in Opposition brief).

27

First, Alvarado and Boswell admit they do not know if the Flannery parenthetical phrase

28 “(exceeding fees already paid)” includes contingent fees from damages awards. See id. at 5:4-6. They

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1 suggest that the Flannery court might have intended the past tense “already paid” to include the future

2 tense, and that any potential contingent fee award to Ms. Parker would reduce her entitlement to

3 statutory fees. Alvarado/Boswell Opp. at 5:11-13 (suggesting addition to the Flannery parenthetical of

4 the following language: “or will be pursuant to a fee agreement, contingent or otherwise”).

5

Nothing in the case law suggests such a bizarre interpretation or result. It has been made

6 abundantly clear, for example, that a civil rights defendant cannot rely on a plaintiff’s percentage-of-

7 recovery contingent fee agreement to limit the statutory fee to the amount of the contingent fee, or

8 even by reference to it. See Venegas v. Mitchell, 495 U.S. 82, 90 (1990) (federal law permits

9 percentage contingent fee contracts with civil rights plaintiffs, even though fee under the contract

10 exceeds statutory fee award); Blanchard v. Bergeron, 489 U.S. 87, 94 (1989) (attorney’s contingency

11 fee agreement does not influence the amount of fees the court may award).

12

All the California Supreme Court did in Flannery was to clarify that the client might retain a

13 right to reimbursement out of the statutory fee, for services for which the client already paid, by fee-

14 for-service or contingent fee payment. See Horsford v. Bd. of Trustees of Cal. State Univ., 132

15 Cal.App.4th 359, 401 (2005) (“If the contingency fee is larger than the statutory fee award, counsel is

16 permitted to accept that fee, with a setoff for statutory fees received. If the contingency fee is smaller

17 than the statutory fee, counsel must reimburse the plaintiff from the statutory award for any amounts

18 already paid by the client pursuant to the contingency contract.”) (emphasis in original).

19

Second, neither Alvarado nor Boswell has paid any fees to Ms. Parker. Declaration of Kay

20 McKenzie Parker, filed herewith (“Parker Reply Decl.”), ¶ 2. Ms. Parker’s fee in the Satchell case

21 involved no payment on account of these cases. See Parker Decl. ISO Amended and Supp. Fee

22 Petition, filed 9/19/08 (Docket No, 1218), ¶ 4. Thus, awarding her “100% of any statutory fee award

23 [for her work],” Alvarado/Boswell Opp. at 6:22, will not trigger any of the unconscionable result

24 imagined by Alvarado and Boswell. Id. at 6:2-3. Given this Court’s vigilance (and Ms. Parker’s

25 representations), Ms. Parker will not be getting double or unconscionable recovery.

26

And Ms. Parker has made it clear throughout these proceedings that she seeks an appropriate

27 fully compensatory statutory attorney’s fee, in keeping with the purposes of the California FEHA.

28 “Fee awards should be fully compensatory. … Absent circumstances rendering the award unjust, an

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1 attorney fee award should ordinarily include compensation for all the hours reasonably spent in

2 litigating the action to a successful conclusion.” Horsford, 132 Cal.App.4th at 394, quoting Ketchum

3 v. Moses, 24 Cal.4th 1122, 1133 (2001). “[T]he attorney who takes [a FEHA] case can anticipate

4 receiving full compensation for every hour spent litigating a claim against even the most polemical

5 opponent.” Weeks v. Baker & McKenzie, et al., 63 Cal. App. 4th 1128, 1175-76 (1998).

6

The issue before the Special Master is the amount of Ms. Parker’s statutory fees. If Ms. Parker

7 receives full compensation, she has no intention to seek or to retain any portion of plaintiffs’ damages.

8 See Parker Reply Decl., ¶¶ 3-6. See also Brief ISO Parker’s Quantum Meruit Claim, filed 3/13/09

9 (Docket No. 1346) at 13, n.4; Parker Decl. ISO Quantum Meruit Claim, filed 3/13/09 (Docket No.

10 1347), ¶ 11; Parker’s Brief Re: April 23, 2009 Hearing, filed 5/1/09 (Docket No. 1407), at 18:16-21;

11 Decl. Relief Motion at 16:11-14.

12

B. This Court Already Has Made it Clear that It Will Not Allow Improper Double

Recovery or an Unconscionable Fee.

13

14

This Court has continuing jurisdiction over fees issues in the underlying action. See Budinich

15 v. Becton Dickinson & Co., 486 U.S. 196 (1988) (court retains jurisdiction to resolve fees issues after

16 judgment on the merits); Bankes v. Lucas, 9 Cal. App. 4th 365, 368 (1992) (filing of a notice of appeal

17 from final judgment on the merits does not affect trial court’s ancillary jurisdiction over a later-filed

18 fee application).

19

In the Satchell action, this Court already has made it clear that it will vigilantly guard against

20 any unconscionable recovery of any attorneys. See, e.g., Order Granting Motion for Plaintiffs’

21 Counsel’s Reasonable Attorneys’ Fees Regarding Motion for Declaratory Relief, filed 12/29/08

22 (Satchell v. FedEx, Case No. 03-2659, Docket No. 890) (awarding fees for preparation of declaratory

23 relief motion occasioned by McCoy’s efforts to seek money from class settlement, in excess of

24 statutory fee he already received); Ninth Circuit Case No. 08-15904 (McCoy’s appeal of same). It also

25 has demonstrated its intention that fees not be collected by any attorney if extraordinary circumstances

26 are proven. See Order Adopting and Modifying Special Master’s Recommendation and Order on

27 Defendant’s and Plaintiff’s Motion for Sanctions, filed 3/19/09 (Docket No. 1353), at 23:3-4 (striking

28 Mr. McCoy’s fee petitions with prejudice, because “the Court cannot rely with any confidence on Mr.

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Case3:04-cv-00098-SI Document1458 Filed07/17/09 Page18 of 19

1 McCoy’s papers, declarations or arguments in support of his fee petitions.”).

2

The Court has inherent authority to ensure that attorney’s fees are properly awarded and to

3 prevent unconscionable results. “All courts possess an inherent power to prevent unprofessional

4 conduct by those attorneys who are practicing before them. This authority extends to any

5 unprofessional conduct, including conduct that involves the exaction of illegal fees.” Jackson v.

6 United States, 881 F.2d 707, 710 (9th Cir. 1989) (emphasis in original), citing Venegas v. Skaggs, 867

7 F.2d 527, 532 n. 6 (9th Cir. 1989) (rejecting argument that the district court was without authority to

8 review the reasonableness of a contingent fee agreement that provided compensation exceeding § 1988

9 statutory award); Cooper v. Singer, 719 F.2d 1496, 1505 (10th Cir. 1983) (en banc) (“[f]ees are central

10 to [the attorney-client] relationship,” over which courts retain supervisory power, “and contingent fee

11 arrangements are therefore subject to the court's supervision”); Dunn v. H.K. Porter Co., 602 F.2d

12 1105, 1108 (3rd Cir. 1979) ( “courts have power to monitor [contingency fee agreements] either

13 through rule-making or on an ad hoc basis”); Schlesinger v. Teitelbaum, 475 F.2d 137, 141 (3rd Cir.

14 1973) (“[i]n its supervisory power over the members of its bar, a court has jurisdiction of certain

15 activities of such members, including the charges of contingent fees”), cert. denied, 414 U.S. 1111, 94

16 S.Ct. 840 (1973); Cal. Rules of Prof. Conduct, Rule 2-107 (1975) (forbidding attorneys from entering

17 “into an agreement for, charge or collect an illegal or unconscionable fee”); Model Code of Prof.

18 Responsibility, Canon 13 (1980) (“A contract for a contingent fee ... should always be subject to the

19 supervision of a court, as to its reasonableness.”).

20

Unlike McCoy, Ms. Parker will abide by the Court’s future orders, and not try to recover an

21 unconscionable fee. See Parker Reply Decl., ¶¶ 6-7; Parker Decl. ISO Quantum Meruit Claim

22 (Alvarado v. FedEx Docket 1347, filed 3/13/09), ¶ 11. By contrast, see 12/14/07 Tr. at 22:13-23:6

23 (McCoy assurances that he will not seek “a penny” from settlement funds, pursuant to his waiver of

24 costs from plaintiffs); Plaintiffs’ Exh. A, filed 4/23/09 (Docket No. 1401), at 16-17 (letters from

25 McCoy evincing contrary intent to “request to the Court … that the Court would relieve me of my

26 waiver” of fees and costs); 4/23/09 Tr. at 8:4-10:16, 13:22-17:9, 17:13-19:12 (testimony that McCoy

27 received cash payments from individual clients). If Ms. Parker were to receive and collect a quantum

28 meruit fee award before she received and collected a statutory fee award, she fully expects that the

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Case3:04-cv-00098-SI Document1458 Filed07/17/09 Page19 of 19

1 Court would enter an appropriate order, with which she would comply, allocating an appropriate

2 portion of the statutory fee award for direct payment to the appropriate plaintiff or plaintiffs.

3

CONCLUSION

4

There are no issues of material fact to resolve. The purely legal issues presented by Ms. Parker

5 are ripe for summary disposition. The Court should enter an Order that:

6

“Ms. Parker has a vested property right to statutory attorney’s fees and costs from FedEx

7 Corporation under the FEHA, California Gov’t. Code sec. 12965(b), for and/or related to her work on

8 behalf of plaintiffs Alvarado and Boswell, unless (due to the pending appeals for the Alvarado and

9 Boswell judgments) an appellate court or this Court enters a final and non-appealable order that FedEx

10 is liable to no one for the claims of Alvarado and Boswell in these cases. No party may extinguish or

11 compromise Ms. Parker’s vested right to statutory attorney’s fees, by settlement, unless Ms. Parker

12 fully participates in negotiations pertaining to her statutory attorney’s fees, and consents to any

13 settlement.”

14 Dated: July 17, 2009

Respectfully submitted,

15

ROSEN, BIEN & GALVAN, LLP

16

By: s/ Sanford Jay Rosen

17

Sanford Jay Rosen

18

Attorneys for Kay McKenzie Parker

19

20

21

22

23

24

25

26

27

28

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 Case 3:03-cv-02659 Document 773 Filed 08/02/2007 Page 1 of 5

1 James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709)
2 ALTSHULER BERZON LLP
177 Post Street, Suite 300 3 San Francisco, CA 94108
Telephone: (415) 421-7151 4 Facsimile: (415) 362-8064

5 Kelly M. Dermody (SBN 171716) Daniel B. Barenbaum (SBN 209261)

6 LIEFF, CABRASER, HEIMANN &

BERNSTEIN, LLP 7 275 Battery Street, 30th Floor

San Francisco, CA 94111-3339

8 Telephone: (415)956-1000 Facsimile: (415) 956-1008

9

Todd M. Schneider (SBN 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

Additional class counsel appear on signature page.

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

DERRICK SATCHELL, et al., 17

Case Nos.: C03-2659 SI; C 03-2878 SI

Plaintiffs,
18

CLASS ACTION

v.

19

PLAINTIFFS' REPLY IN SUPPORT OF

FEDEX EXPRESS, a Delaware Corporation, MOTION FOR FINAL APPROVAL OF

20

CLASS ACTION SETTLEMENT AND FOR

Defendant.

FINAL CERTIFICATION OF

21 __________________________ SETTLEMENT CLASSES

PATRICIA CALD WELL, et al.

22

Date: August 9, 2007

23

Plaintiffs,

Time: 3:30p.m. Place: Courtroom 10, 19th Floor

v. 24

Judge: Hon. Susan Illston

FEDEX EXPRESS, a Delaware Corporation,

25

Defendant.

26 _______________________________________

27

28

PLTFS' REPLY ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND FOR FINAL CERT. OF SETFLEMENT CLASSES — CASE NOS. 03-2659 SI: 03-2878 SI

Case 3:03-cv-02659 Document 773 Filed 08/02/2007 Page 2 of 5

1

Plaintiffs respectfully submit this reply in support of their Motion for Final Approval of

2 Class Action Settlement and for Final Certification of Settlement Classes. Defendant FedEx

3 Express does not oppose this motion. Plaintiffs submit this reply to: (1) provide the Court with

4 the latest information regarding claims submitted and requests for exclusion; and (2) address three

5 objections received after plaintiffs filed their motion for final approval.

6

ARGUMENT

7

I. Class Member Responses Received After Plaintiffs Filed Their Motion

8

Provide Further Support for Final Approval.

9

Plaintiffs filed their motion for final approval of the parties' class action settlement and

10 proposed Consent Decree on July 5, 2007. See Satchel! Doc. 751. As plaintiffs explained in their

11 motion, the Consent Decree provides comprehensive injunctive relief and monetary relief totaling

12 approximately $55,000,000. See Mot. at 1-10 (describing the relief provided). The terms of the

13 Decree easily satisfy the fair, reasonable, and adequate standard for settlement approval under

14 Federal Rule of Civil Procedure 23(e). See id. at 12-22.

15

At the time plaintiffs moved for final approval, the claims administrator had received

16 8,426 completed claim forms, 10 requests for exclusion, two requests to rescind earlier opt-outs,

17 and one objection. See Decl. of Mark Patton with Respect to Mot. for Final Settlement Approval

18 ¶1J5-9 (Satchell Doc. 754). As of July 27, 2007, the claims administrator had received 10,582

19 claim forms, 16 timely requests for exclusion,1 and three objections. See Second Deci. of Mark

20 Patton with Respect to Mot. for Final Settlement Approval ¶1J5-8 & Exs. B, C, D. The claims

21 administrator received one untimely objection on August 2, 2007. See Declaration of Loree

22 Kovach with Respect to Motion for Final Settlement Approval, Ex. B. The Settlement Class's

23 high claims rate (over 44 %) and low opt-out and objection rates (each much less than 1%)

24

25 1 Twenty-seven class members timely requested exclusion, but 11 of those requested to rescind their opt-outs. (Two of the eleven submitted their requests to rescind after the deadline for

26

rescissions set forth in the preliminary approval order, but the parties jointly recommend that the Court permit those two — Herman Savage and Michelle Swallow —to rescind their opt outs. The

27 parties also agree that four class members —Nicholas Benavente, Eloisa Blandon, Hector Garcia, and Richard Zapata — who expressed an intention to opt out, but did not use the precise language

28 required by the preliminary approval order, should be permitted to opt out.)

—1—
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Case 3:03-cv-02659 Document 773 Filed 08/02/2007 Page 3 of 5

1 provide further support for final approval of the parties' settlement. See Hanlon v. Chrysler 2 Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (reaction of the class is one factor to be considered 3 when deciding whether to grant final approval to a class action settlement). Significantly, not a

4 single class member has objected to the injunctive relief provisions of the Consent Decree.

5

II. The Three Additional Objections Submitted by Class Members are Without

6

Merit and Should Be Overruled.

7

The claims administrator received two timely objections and one untimely objection to the

8 settlement and Consent Decree after plaintiffs filed their motion for final approval. None of the

9 objections has merit.2

10

Class member LaKeysha Dorsey submitted an objection stating that in her view "[t]here is

no stipulation for those class members, other than the named members, who[] may have been

12 more adversely affected by the actions of FedEx." See Second Patton Deci. Ex. D. It appears

13 that Ms. Dorsey may feel that she has a particularly strong claim of discrimination. See Id.

14

Ms. Dorsey's objection is similar to Mr. Hoiland's and should be rejected for the same

15 reasons. First, the parties have agreed on a point system to determine individual payments that

16 takes into account several factors that serve as a proxy for the strength of individual damage

17 claims. See Consent Decree Section XXII(L); Mot. at 14-15. This procedure strikes an

18 appropriate balance between taking fair account of the differing strengths of individual claims and

19 permitting class members to claim damages without imposing onerous burdens of proof on each

20 individual claimant. Second, to the extent Ms. Dorsey believed that she had a stronger claim and

21 could recover more in a separate suit than she could in this case, Ms. Dorsey was free to opt out

22 of the settlement and pursue her claim independently. The Notice of Class Action Settlement

23 notified all Settlement Class members of this option and explained how to request exclusion. See

24 Second Patton Deci. Ex. A at 7-8, Section I (Notice of Class Action Settlement mailed to class

25 members).

The deadline for postmarking objections was July 7, 2007. See Patton Decl. ¶9. The claims 27 administrator had received one objection —from Brett Hoiland — at the time plaintiffs filed their
motion for final approval. Plaintiffs addressed Mr. Hoiland' s objection at pages 16-17 of their 28 original brief. See Satchell Doc. 751.
-2-
PLTFS' REPLY ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND FOR FINAL CERT. OF SE1TLEMENT
CLASSES — CASE NO. 03-2659 SI: 03-2878 SI

Case 3:03-cv-02659 Document 773 Filed 08/02/2007 Page 4 of 5

1

Class member Rosa Olmos — one of the 18 declarants for whom plaintiffs have requested

2 $5,000 service awards — submitted an objection stating her view that she should be treated as a

3 class representative. Ms. Olmos appears to object to receiving a $5,000 service award instead of

4 the $30,000 award plaintiffs have requested for class representatives. Ms. Olmos does not appear

5 to have any objection to the terms of the settlement or Consent Decree, except with respect to the

6 service payments motion. Accordingly, plaintiffs address Ms. Olmos's objection in their reply in

7 support of their motion for service awards. As plaintiffs explain in that brief, the distinction

8 drawn in the Consent Decree between class representatives and the 18 non-class representative

9 declarants is well supported by the Ninth Circuit's decision in Staton v. Boeing, 327 F.3d 938,

10 976-77 (9th Cir. 2003).

11

The Claims Administrator also received multiple letters from class member Maurice A.

12 Smith that did not originally appear to be objections. See Kovach Dec. and exhibits thereto.

13 Indeed, in one letter Mr. Smith stated "my 'suggestion' was not an 'objection' but a 'realistic'

14 expectation based on the facts presented to me." Kovach Dec. Ex. C. However, on August 2,

15 2007, the Claims Administrator received a letter from Mr. Smith, postmarked on July 30, 2007,

16 which stated "I object to settle for '$1,000' or anything that 'small' compared to $38.5 million,"

17 and demanded that he be paid $1.14 million from the Settlement Fund. Kovach Dec. Ex. E. Mr.

18 Smith's objection was postmarked on July 30, 2007, well after the July 7, 2007 postmark date for

19 objections. Accordingly, it should be overruled as untimely. To the extent that the Court is 20 inclined to consider Mr. Smith's untimely objection, it should be overruled for the same reasons

21 that the objections filed by Mr. Hoiland and Ms. Dorsey should be overruled: the Plan of

22 Allocation is a reasonable method for distributing funds to class members, and if Mr. Smith

23 believed he had particularly strong claims that merited individual adjudication and greater

24 damages, he could have opted out of the case. He chose not to, and instead filed a claim.

25 Accordingly, his objection should be overruled.

26

CONCLUSION

27

For the reasons stated in plaintiffs' motion, in addition to the reasons given above,

28 plaintiffs respectfully request that the Court grant final approval to the parties' settlement, grant
-3-
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Case 3:03-cv-02659 Document 773 Filed 08/02/2007 Page 5 of 5

1 final certification to the proposed classes, and sign and enter plaintiffs' revised proposed final

2 approval order, revised proposed final judgment, and the proposed Consent Decree.3

3 Dated: August 2, 2007

ALTSHULER BERZON LLP

5

6

7 Todd M. Schneider (SBN 158253)

8

Guy B. Wallace (SBN 176151) SCHNEIDER & WALLACE

180 Montgomery Street, Suite 2000 9 San Francisco, CA 94104

Telephone: (415) 421-7100 10 Facsimile: (415) 421-7105

By: Is! James M. Finber James M. Finberg (SBN 114850)
James M. Finberg (SBN 114850) Eve H. Cervantez (SBN 164709) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064

11 Kelly M. Dermody (SBN 171716) Daniel E. Barenbaum (SBN 209261)
12 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
13 275 Battery Street, 30th Floor San Francisco, CA 94111-3339
14 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
15
KAY MCKENZIE PARKER (SBN 143140) 16 225 Bush Street, 16th Floor
San Francisco, CA 94104 17 Telephone: (415) 227-9622
Facsimile: (415) 227-4522
18
Barry Goldstein (SBN 141868) 19 GOLDSTEiN, DEMCHAK, BALLER,
BORGEN & DARDARLAN 20 300 Lakeside Drive, Suite 1000
Oakland, CA 94612 21 Telephone: (510) 763-9800
Facsimile: (510) 834-1417 22

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

23 Class Counsel

24
Plaintiffs are submitting a revised final approval order together with this reply brief. The 25 revised order overrules all four objections submitted by class members, not just the single
objection submitted by Brett Hoiland that had been received at the time plaintiffs filed their 26 motion.

27

Plaintiffs are also submitting a revised final judgment that excludes from the release all

class members who have now submitted opt-out requests, not just those who had requested to be

28 excluded at the time plaintiffs filed their motion.

-4-

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 Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 1 of 14

1 Sanford Jay Rosen — 62566 HollyM. Baldwin— 191317 Kenneth M. Walczak — 247389 ROSEN, BIEN & GAL VAN, LLP
3 315 Montomery Street, 10th Floor San Francisco, California 94104
4 Telephone: (415) 433-6830 Facsimile: (415) 433-7104
5 srosen(rbg-law.com
hbaldwinrbg-law. corn
6 kwalczakrbg-1aw.com

7
Attorneys for Kay McKenzie Parker
8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 EDWARD ALVARADO, et al.,
13
Plaintiffs,
14 v.
15
FEDEX CORPORATION, a Delaware 16 corporation, dba FEDEX EXPRESS,

17

Defendant.

18

19

Case No. C 04-0098 SI Case No. C 04-0099 SI (White v. FedEx)
KAY MCKENZIE PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF
Date: February 1, 2008 Time: 9:00 a.m. Courtroom: 10, 19th Floor Judge: Hon. Susan Iliston
/

20

21

22

23

24

25

26

27

28

PARKER'S OPPOSITION TO DEFENDA'NT'S MOTION FOR DECLARATORY RELIEF CASE NO. C 04-0098/0099 SI

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 2 of 14

1

TABLE OF CONTENTS

2

3 INTRODUCTION

4 PROCEDURAL BACKGROUND

5 ARGUMENT

I. MS. PARKER IS NOTBOUND BY SETTLEMENT AGREEMENTS

TO WHICH SHE WAS NOT A PARTY OR PRIVY

7

II. INTERPLEADER DOES NOT REQUIRE MS. PARKER TO

8

RELINQUISH HER RIGHT TO STATUTORY OR QUANTUM

MERUIT FEES RECOVERY

9

III. MS. PARKER HAS STANDING TO SEEK AN AWARD OF

10

ATTORNEY'S FEES FOR WORK PERFORMED ON BEHALF OF

THE SETTLEMENT PLAINTIFFS

11

IV. PUBLIC POLICY DOES NOT SUPPORT FEDEX'S ATTEMPT TO

12

IMPEDE MS. PARKER'S LEGITIMATE CLAIM FOR ATTORNEY'S

FEES AND COSTS

13

CONCLUSION

14

Page
1
2
4 4
6
7
9 10

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF CASE NO. C 04-0098/0099 SI

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 3 of 14

1

TABLE OF AUTHORITIES

2

3

CASES

4 Abraham Zion Corp. v. Lebow,

761 F.2d 93 (2nd Cir. 1985)

5

American Ins. Co. v. Bank of Bellevue,

6

366 F.2d 289 (8th Cir. 1966)

7 Commodore Home Systems, Inc. v. Superior Court,

32 Cal.3d 211 (1982)

8

Crommie v. PUC,

9

840 F. Supp. 719 (N.D. Cal. 1994)

10 E.E.O.C. v. Waffle House, Inc.,

534 U.S. 279 (2002)

11

Epstein v. Abrams,

12

57Ca1.App.4th1159(1997)

13 Filzino Accountants 'Ass 'n v. State Bd. ofAccountancy,

155 Cal. App. 3d 1023 (1984);

14

Flannery v. Prentice,

15

26 Cal.4th 572 (2001)

16 Folsom v. Butte County Ass 'n of Governments,

32 Cal.3d 668 (1982)

17

Hess v. Ford Motor Co.,

18

27 Cal.4th 516 (2002)

19 In Re Republic of Philippines, 309 F.3d 1143 (9th Cir. 2002)
20

Libby, McNe ill, and Libby v. City Nat. Bank,

21

592F.2d504(9thCir. 1978)

22 Lindelli v. Town of San Anselmo,

139 Cal.App.4th 1499 (2006) 23

Lyons v. Chinese Hospital Ass 'n,

24

136Ca1.App.4th 1331 (2006)

25 Mangold v. PUC,
67 F.3d 1470 (9th Cir. 1995) 26

Pangborn Plumbing Corp. v. Carruthers & SkfJIngton,

27

97Ca1.App.4th1039(2002)

28

11 PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF
CASE NO. C 04-0098/0099 SI

Page
4, 5
6
9 8
4
10 8
7, 8,9
8
5 6
6 8, 9
8
8
10'

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 4 of 14

1 Planned Parenthood v. Aakhus,

14 Cal.App.4th 162 (1993)

8

2

Polo Ralph Lauren, L.P. v. Tropical Shipping & Const. Co., Ltd,

3

215F.3d1217(llthCir.2000)

4

4 Provident Mut. Life Ins. Co. v. Ehrlich,

374F.Supp. 1134 (E.D. Pa. 1973)

6

Santisas v. Goodin,

6

17 Cal.4th 599 (1998)

8

7 Souza v. Westlands Water Dist.,

135 Cal.App.4th 879 (2006)

5

8

Trowbridge v. Prudential Ins. Co. ofAmerica,

9

322F.Supp. 190(S.D.N.Y. 1971)

6

10 United States Mine Workers v. Gibbs,

383U.S.715(1966)

8

11

Weeks v. Baker & McKenzie

12

63Cal.App.4th1128(1998)

9

13

STATUTES

14 Cal. Civ. Code § 1559

4

15

RULES

16 Federal Rule of Civil Procedure 22

6

17

OTHER AUTHORITIES

18 Richard M. Pearl, California Attorney Fee Awards,

§ 2.23 at p. 58 (2d ed., 2005); Conditional Agreement at 5:6-19

8

Restatement (Second) of Contracts, § 306

5

20

13 Williston on Contracts, § 37:1 (4th ed.)

4

21

22

23

24

25

26

27

28
111
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Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 5 of 14

1

INTRODUCTION

2

Kay McKenzie Parker, former co-counsel for Plaintiffs and a current and potential

3 movant for attorney's fees in this action, hereby opposes the Motion for Declaratory Relief

4 filed by Federal Express Corporation ("FedEx" or "Defendant") on December 12, 2007

5 (Docket No. 976) ("Def's Mot."), and requests declaratory relief in her favor. FedEx's motion 6 involves its request to interplead a bond to satisfy settlements between it and plaintiffs Tanda

7 Brown, Kevin Neely, Bertha Duenas, Dyronn Theodore, Janice Lewis, Lasonia Walker, and 8 Alex Rivera (collectively, "Settlement Plaintiffs"). In seeking declaratory relief, FedEx asks

9 the Court to endorse its flawed reading of both contract and attorney's fees law, under which it

10 contends that Ms. Parker may be bound (and her right to recovery limited) by agreements to

11 which she was not a party or in privity, and of which she had no knowledge prior to their filing

12 inthis Court.

13

FedEx's positions are unsupported by law, public policy, or the record of this case. The

14 Court should therefore hold that Ms. Parker is nOt bound by the agreements between FedEx

15 and the Settlement Plaintiffs and their trial counsel, Waukeen McCoy. The Court also should

16 hold that Ms. Parker has standing to seek the attorney's fees and costs she labored to earn on

17 behalf of the Settlement Plaintiffs directly from FedEx under the FEHA, or it should refer the

18 issue to the Special Master for resolution in the first instance in conjunction with his pending

19 rulings.

20

Because Ms. Parker's right to seek attorney's fees and costs from FedEx does not

21 implicate the res proffered in interpleader, the Court can permit the interpleader action sought 22 by FedEx to proceed, without impeding Ms. Parker's ability to proceed with her independent

23 claims for attorney's fees that would be filed after the entry ofjudgment. Public policy does

24 not support hindering Ms. Parker's legitimate claims under the guise of expediting distribution

25 to the Settlement Plaintiffs, or extinguishing her claims under Agreements to which she was
26 not aparty.

27

All the issues raised by FedEx, except for the issues concerning the impact of the

28 settlement agreements, are presently before the Special Master, in proceedings concerning Ms.
1 PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF
CASE NO. C 04-0098/0099 SI

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 6 of 14

1 Parker's fee applications for work done for judgment plaintiffs Alvarado, Evans, and Boswell.

2 These issues include Ms. Parker's standing to seek statutory attorney's fees and costs directly

3 from FedEx under the FEHA. Moreover, this Court's Order of December 19, 2007 directs that

4 discovery be taken concerning certain facts pertaining to that issue. See Order Denying

5 Plaintiffs' Motion for Disqualification; Granting Defendant's Motion for Discovery, filed

6 12/19/07 (Docket No. 988), at 5:10-6:10. Ms. Parker therefore submits tht the Court should

7 refer the same issues as they pertain to the Settlement Plaintiffs tothe Special Master. If not,

8 the Court should hold that Ms. Parker has standing.

9

PROCEDURAL BACKGROUND

10

Ms. Parker has repeatedly documented the facts regarding her work as counsel for both

11 the settling and judgment plaintiffs, before they were severed from the related Satchell class

12 action as well as in this action, and briefed her entitlement to recover reasonable attorney's fees

13 and costs for her work in prosecuting the plaintiffs' individual claims. See, e.g., Motion to

14 Intervene to Resolve Attorney's Fees and Expenses, filed 10/10/06 (Docket No. 572), at 1:16 -

15 4:10; Reply In Support Of Motion to Set Aside Special Master's Ruling Denying Parker's

16 Motions for Attorney's Fees as to Plaintiffs Edward Alvarado and Pernell Evans, filed 9/4/07

17 (Docket No. 924), at 1:2-18; Letter Brief In Support of Ms. Parker's Standing to Seek

18 Attorney's Fees, filed 8/15/07 (Docket No. 914) ("Letter Brief"); Letter Brief Reply ISO Ms.

19 Parker's Standing to Seek Fees, filed 8/27/07 (Docket No. 921) ("Letter Brief Reply").

20

The Court appointed Edward Swanson as a Special Master "to supervise and preside

21 over all remaining discovery in this case." Order of 10/13/05 (Docket No. 292), at 3:19-20.

22 The Special Master also presides over all issues "related to the attorneys' fees matter ... in the

23 first instance." Order Referring Attorneys' Fees Motions to Special Master, filed 5/1/07

24 (Docket No. 811), at 1:14-15. See also Order Re: Referral of Attorneys' Fees Motions and All

25 Related Matters to Special Master, filed 6/7/07 (Docket No. 849).

26

The parties are currently awaiting a ruling from the Special Master on the issue of Ms.

27 Parker's standing to seek attorney's fees and costs for the work she performed on behalf of

28 judgment plaintiffs Alvarado, Evans, and Boswell. See Special Master's Order Regarding
2
PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF CASE NO. C 04-0098/0099 SI

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 7 of 14

1 Briefing Schedule, filed 9/13/07 (Docket No. 928), at 2:4-6 (Special Master "will issue a single
2 order that will address ... [Parker's] standing to seek fees in Alvarado, Evans, and Boswell"). 3 This ruling presumably will follow the discovery the Court has permitted into certain facts. 4 See Order, Docket No. 988, supra.

5

FedEx has apparently reached settlements with the seven Settlement Plaintiffs for a total

6 (gross, pre-tax) amount of $1,499,000. See Motion for Counterclaim and Interpleader Relief,

7 filed November 15, 2007 (Docket No. 955) ("Interpleader Motion") at 1:23-24. No entry of

8 judgment has yet issued concerning these plaintiffs' cases. Ms. Parker has filed no fees

9 applications under FEHA pertaining to those cases. She intends to file such applications at the 10 appropriate time hereafter.

11

In its Interpleader Motion, FedEx requests that the Court accept its bond in the amount

12 of $1,499,000; "determin[eJ ... to whom the funds belong; {r]estrain[] [Ms. Parker] from 13 instituting any action against FedEx for the recovery of said interplead funds; [and] dismiss[] 14 all claims of Settlement Plaintiffs against FedEx with prejudice and with each party bearing its

15 own costs, including attorney's fees." Id. at 10:3-10. On November 26, 2007, Ms. Parker filed

16 her Conditional Agreement to the Interpleader Motion, in which she stated:

17

Ms. Parker does not oppose interpleader of the $1,499,000 settlement amount,

provided that (1) there must be full disclosure of all agreements between FedEx,

18

the Settlement Plaintiffs and counsel, including formal discovery if necessary, in

order for the Court to determine the entitlement of the claimants including Ms.

19

Parker; and (2) the dismissal of Settlement Plaintiffs' claims against FedEx will

not extinguish Ms. Parker's right to seek the fees to which she is entitled.

20

21 Docket No. 958, at 6:3-8.

22

FedEx responded on November 29, 2007 by filing (without leave of Court) a document

23 styled "Objections" to Ms. Parker's Conditional Agreement (Docket No. 964). FedEx

24 "objected" on the grounds that, as discharged counsel for the Settlement Plaintiffs, Ms. Parker

25 both lacks standing to pursue her statutory fee claims and is bound by the agreements signed

26 by said Plaintiffs. On November 30, 2007, Ms. Parker requested leave to file and proffered a

27 response to these "Objections" (Docket No. 965).
28 3
PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF CASE NO. C 04-0098/0099 SI

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 8 of 14

1

Although the Court has not yet ruled on any of these issues, FedEx submitted the instant

2 Motion for Declaratory Relief on December 12, 2007 (Docket No. 976). FedEx's

3 Memorandum of Points and Authorities in support of said motion restates the bulk of FedEx' s

4 earlier, erroneous arguments. 5

ARGUMENT

6 I.
7

MS. PARKER IS NOT BOUND BY SETTLEMENT AGREEMENTS TO WHICH SHE WAS NOT A PARTY OR PRIVY.

8

As in its "Objections" to Ms. Parker's Conditional Agreement to Interpleader Relief,

9 FedEx cannot decide how to characterize Ms. Parker in its Motion for Declaratory Relief. In

10 several instances, FedEx argues that, as discharged counsel, Ms. Parker must sue her former

11 clients directly in order to receive any compensation for services performed. Def's Mot. at

12 9:5-10, 10:13-12:12. This characterization of Ms. Parker as an attorney discharged by, and

13 even adverse to, the Settlement Plaintiffs does not prevent FedEx from simultaneously arguing

14 that Ms. Parker's rights are limited by the settlement agreements these same individuals

15 signed.

16

FedEx is wrong as a matter of basic contract and agency law. "It goes without saying

17 that a contract cannot bind a nonparty." E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294

18 (2002) (government agency not required to relinquish statutory authority on basis of arbitration

19 agreement it did not sign). See also Abraham Zion Corp. v. Lebow, 761 F.2d 93, 103 (2nd Cir.

20 1985) (contract cannot bind a person not party to it); 13 Williston on Contracts, § 37:1 (4th

21 ed.).

22

Strangers to a contract may acquire some rights pursuant to that contract if they are

23 intended and immediate third-party beneficiaries under its terms. See Polo Ralph Lauren, L.P.

24 v. Tropical Shipping & Const. Co., Ltd., 215 F.3d 1217, 1222 (11th Cir. 2000) ("Contracts

25 bind only named parties unless both parties to the contract clearly express an intent to benefit a

26 third party."); 13 Williston on Contracts, § 37:1, supra. A third party's rights to enforce a 27 contract are predicated on the contracting parties' intent to benefit it. 13 Williston on

28 Contracts, § 37:1, supra; Cal. Civ. Code § 1559 (contract made expressly for benefit of third 4
PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF
CASE NO. C 04-0098/0099 SI

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 9 of 14

1 person may be enforced by him); Hess v. Ford Motor Co., 27 Cal.4th 516, 524 (2002); Souza

2 v. Westlands Water Dist., 135 Cal.App.4th 879, 89 1-894 (2006).

3

But the makers of a contract cannot use their contract to impose their will on unaware

4 third parties. Abraham Zion Corp., 761 F.2d at 103 (third-party beneficiary argument not

5 available where "question is not [third party]'s right to enforce the agreement but rather the

6 right of the plaintiffs to enforce the agreement (as they construe it) against [him]") (emphasis
7 in original).

8

FedEx and the Settlement Plaintiffs have sought to impose no "benefit" on Ms. Parker.

9 To the contrary, FedEx seeks to impose an obligation — i.e., to extinguish her ability to recover 10 fees and costs from FedEx. And far from intending that Ms. Parker's fees be paid by the

11 interpleaded funds, both Plaintiffs and FedEx have contested Ms. Parker's standing to recover

12 fees at all. See, e.g., Docket Nos. 734, 864, 875, 907, 917 (FedEx's oppositions) and Docket

13 Nos. 580, 771, 780, 918, 931 (Plaintiffs' oppositions). Ms. Parker has received no benefit as a

14 result of the Settlement Agreements, and has never expressed her assent to them. She is

15 therefore free to reject any associated burden. Restatement (Second) of Contracts, § 306 (one 16 who "has not previously assented" to a promise "may in a reasonable time after learning of its

17 existence and terms render any duty to himself inoperative from the beginning by disclaimer").

18

The plain language of the Settlement Agreements filed under seal by FedEx establishes

19 that they were not intended to limit Ms. Parker's claims. In them, the signing parties directly

20 acknowledge the existence of Ms. Parker's claim to attorney's fees and costs. This language

21 recognizes what contract law requires: that following her dismissal as counsel of record, Ms.

22 Parker was not in privity with the Settlement Plaintiffs, and both they and FedEx lack the

23 ability to negotiate away her right to seek reasonable compensation.

24

Because the Settlement Agreements cannot bind Ms. Parker, the Court should hold that

25 the Settlement Agreements do not affect Ms. Parker's right to present a claim for the attorney's

26 fees and costs she incurred in representing the Settlement Plaintiffs.

27

28
5
PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF CASE NO. C 04-0098/0099 SI

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 10 of 14

1 II. INTERPLEADER DOES NOT REQUIRE MS. PARKER TO

RELINQUISH HER RIGHT TO STATUTORY OR QUANTUMMERUIT

2

FEES RECOVERY.

3

FedEx is correct that interpleader may be appropriate in order to "resolve in one

4 proceeding all claims to a res." In Re Republic of Philippines, 309 F.3d 1143, 1153 (9th Cir.

5 2002). The res in question here is the sum of $1,499,000 allegedly payable by FedEx to the

6 Settlement Plaintiffs. FedEx may have carried its burden to establish that entitlement to this

7 res is contested between plaintiffs, their counsel, and lienholders including Ms. Parker. FedEx

8 has not established that Ms. Parker's claims against FedEx are limited by law to her share of 9 this $1,499,000 fund.

10

Such a finding is neither necessary nor warranted. As Ms. Parker previously noted:

11 "Interpleader being a remedy solely for the protection of the stakeholder, it may not be used by

12 the stakeholder as a weapon to defeat recovery from funds other than the one before the court."

13 American Ins. Co. v. Bank of Bellevue, 366 F.2d 289, 294 (8th Cir. 1966). See also

14 Conditional Agreement, at 5:20-6:1. On a showing that interpleader is appropriate, the Court

15 can adjudicate the proper allocation of the res proffered by FedEx. Such an adjudication

16 would not, by definition, affect claims such as Ms. Parker's to monies not included in the

17 $1,499,000 amount.

18

FedEx's repeated references to "multiple liability" are thus wrong. "[I]nterpleader is

19 designed to protect the stakeholder from such liability only when [the liability is] based upon

20 the particular fund proffered by the interpleader plaintiff.., or, put another way, [w]hen only a

21 single obligation is owing." Libby, McNeill, andLibby v. City Nat. Bank, 592 F.2d 504, 509

22 (9th Cir. 1978), citing Provident Mut. LfeIns. Co. v. Ehrlich, 374 F.Supp. 1134, 1138 (E.D.

23 Pa. 1973); Trowbridge v. Prudential Ins. Co. ofAmerica, 322F.Supp. 190, 192 (S.D.N.Y.

24 1971). Under the system established by Federal Rule of Civil Procedure 22, interpleader is

25 permissible when "more than a single obligation is owed, and the possibility of a double

26 recovery justified by law is very real." Libby, McNeill, andLibby, 592 F.2d at 509, quoting 27 Trowbridge, 322 F.Supp. at 193.

28
6
PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF CASE NO. C 04-0098/0099 SI

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 11 of 14

1

Since Ms. Parker filed her Conditional Agreçment, FedEx has filed two sets of

2 "Objections" and this Motion, in an effort to give the impression of an urgent need to protect

3 its interests. No such urgency exists. Ms. Parker does not oppose the use of the interpleader

4 mechanism to facilitate the allocation of the $1,499,000 in settlement funds between plaintiffs,

5 their counsel, and the lienholders (including herself). She does oppose FedEx's unwarranted

6 effort to use the mechanism to eliminate her legitimate and independent claim for attorney's

7 fees and costs.

8 III. MS. PARKER HAS STANDING TO SEEK AN AWARD OF

ATTORNEY'S FEES FOR WORK PERFORMED ON BEHALF OF THE

9

SETTLEMENT PLAINTIFFS.

10

The issues concerning Ms. Parker's standing to seek attorney's fees and costs directly

11 from FedEx are presently before the Special Master in connection with the judgment plaintiffs.

12 Hence Ms. Parker restates and incorporates in full her argument that, as a motion "related to

13 the attorneys' fees matter ... in the first instance," this motion can be referred for resolution to

14 Special Master Swanson.1 See Order of 5/1/07, supra, at 1:14-15; Formal Request for Referral

15 to Special Master, filed 12/19/07 (Docket No. 986). FedEx has repeatedly opposed referral of

16 this motion, despite the fact that the arguments it raises in support of declaratory relief are

17 functionally identical to those it has levied against Ms. Parker's claims for attorney's fees and

18 costs for her representation of plaintiffs Alvarado, Evans, and Boswell. (The sole new

19 argument advanced by FedEx is the contention that plaintiffs who prevail by means of

20 settlement are somehow distinguishable from those who obtain a judgment after trial. As

21 shown below, this proposition is manifestly false.)

22

FedEx once again relies incorrectly on federal fees law, and on an overly restricted

23 reading of Flannery v. Prentice, 26 Cal.4th 572, 590 (2001). The parties have been down this

24

25 ________________________
26 1 As the contract issues raised by FedEx are both clear and amenable to quick resolution —see Section I, supra — Ms. Parker requests that, before referral, the Court enter an order declaring that the
27 Settlement Agreements do not preclude Ms. Parker from presenting her claims for attorney's fees and costs for her representation of the Settlement Plaintiffs.
28
7
PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF CASE NO. C 04-0098/0099 SI

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 12 of 14

1 road before, in the Alvarado/Evans/Boswell context. See, e.g., Letter Brief, at 3:13-27;

2 Transcript of August 9, 2007 Hearing at 26:6-2 1; Letter Brief Reply, at 1:6-2:2.

3

In whichever forum the parties raise this issue, Ms. Parker's position is the same. In

4 brief:

5

• Because FedEx and the Settlement Plaintiffs litigated FEHA claims (See Amended

6

Complaint, filed 1/9/04 (Docket No. 1), at ¶J 306-319), Ms. Parker is entitled to present

7

to this Court her statutory and quantum meruit claims for attorney's fees under

8

California law. Crommie v. PUG, 840 F. Supp. 719, 721 (N.D. Cal. 1994), affd sub

9

nom Mangold v. PUG, 67 F.3d 1470 (9th Cir. 1995), citing United States Mine Workers

10

v. Gibbs, 383 U.S. 715, 726 (1966); Letter Brief, at 2:1-3:9.

11

• Ms. Parker's standing to seek recovery of the fees and expenses she labored to earn is

12

the same with regard to all her former clients, whether they eventually prevail via

13

settlement, or by jury verdict. See Folsom v. Butte County Ass 'n of Governments, 32

14

Cal.3d 668, 685 (1982); Lyons v. Chinese Hospital Ass'n, 136 Cal.App.4th 1331, 1345

15

(2006) ("It is undisputed that relief obtained through a settlement may qualify a plaintiff

16

as the prevailing party, even in the presence of a stipulation disclaiming liability on the

17

merits."), citing Santisas v. Goodin, 17 Cal.4th 599, 62 1-622 (1998); Planned

18

Parenthoodv. Aakhus, 14 Cal.App.4th 162, 174 (1993); RichardM. Pearl, Calfornia

19

Attorney Fee Awards, § 2.23 at p. 58 (2d ed., 2005); Conditional Agreement at 5:6-19.

20 • Because the work Ms. Parker performed included litigation of the FEHA claims

21

advanced by Settlement Plaintiffs, she is entitled to benefit from California fee-shifting

22

provisions regardless of the basis for said Plaintiffs' recovery. See Flannery, 26 Cal.4th

23

572 (2001); Lindelli v. Town ofSanAnselmo, 139 Cal.App.4th 1499 (2006); Filipino

24

Accountants 'Ass 'n v. State Bd. ofAccountancy, 155 Cal. App. 3d 1023 (1984); Letter

25

Brief at 2:27-3:27; Letter Brief Reply, at 1:10-2:2.

26

• Ms. Parker's fees should be awarded by this Court directly against defendant FedEx,

27

thereby advancing the public policy behind FEHA and avoiding unjust enrichment. See

28

Flannery v. Prentice, 26 Cal.4th 572, 582-86 (2001) (FEHA public policy and unjust

PARKER'S OPPOSITION TO DEFENDANrS MOTION FOR DECLARATORY RELIEF CASE NO. C 04-0098/0099 SI

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 13 of 14

1

enrichment, i.e., windfalls); Lindelli v. Town of San Anselmo, 139 Cal.App. 4th 1499,

2

1513 (attorney intervention avoids windfalls to defendants and wasteful collateral

3

actions).

4

• As Lindelli demonstrates, Flannery should not be read to hold that an attorney

5

performing work in the absence of a contract is somehow better situated than one

6

seeking intervention to enforce her rights under a valid, written agreement. See Letter

7

Brief at 3:13-27.

8

The Court should either refer these same issues concerning standing as to the Settlement

9 Plaiiitiffs to the Special Master, or it should review the relevant arguments and hold that Ms.

10 Parker has standing under the Flannery and Lindelli line of cases.

11 IV. PUBLIC POLICY DOES NOT SUPPORT FEDEX'S ATTEMPT TO

IMPEDE MS. PARKER'S LEGITIMATE CLAIM FOR ATTORNEY'S

12

FEES AND COSTS.

13

In its "Objections" to Ms. Parker's Conditional Agreement, FedEx suggests that

14 "Parker's position undermines public policy that encourages litigants to voluntarily reach 15 settlement." Docket No. 964, at 6:16-17. FedEx does not provide any support for this

16 proposition, and does not repeat it in its Motion for Declaratory Relief. As Ms. Parker has

17 argued before the Special Master, public policy is best served by full and proper compensation 18 of the attorneys who labor on behalf of FEHA plaintiffs.

19

It need hardly be reiterated that the policy that promotes the right to seek and

hold employment free of prejudice is fundamental. Job discrimination foments

20

domestic strife and unrest, deprives the state of the fullest utilization of its

capacities for development and advance, and substantially and adversely affects

21

the interest of employees, employers, and the public in general. As California

courts long have recognized, [statutory] fees are intended to provide fair

22

compensation to the attorneys involved in the litigation at hand and encourage

litigation of claims that in the public interest merit litigation.

23

24 Flannery, 26 Cal.4th at 584, citing Commodore Home Systems, Inc. v. Superior Court, 32

25 Cal.3d 211, 220 (1982); Weeks v. Baker & McKenzie 63 Cal.App.4th 1128, 1172 (1998). See

26 also Letter Brief Reply, at 2:3-14 (domestic relations cases cited by FedEx inapplicable, per

27 Lindelli).
28

9
PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF
CASE NO. C 04-0098/0099 SI

Case 3:04-cv-00098-SI Document 999 Filed 01/11/2008 Page 14 of 14

1

California law also recognizes the public policy in favor of preserving Ms. Parker's

2 right to seek fees against interference by the settling parties. See Epstein v. Abrams, 57

3 Cal.App.4th 1159, 1169-1170 (1997) (courts should not approve settlements entered into as

4 attempts to defeat existing attorney's liens); Pangborn Plumbing Corp. v. Carruthers &

5 Skfflngton, 97 Cal.App.4th 1039, 1049 n.4 (2002) (clients not allowed to appropriate benefits

6 of judgment while refusing to pay attorney through whose efforts judgment was obtained),
7 citing id.

8

CONCLUSION

9

The issue of Ms. Parker's standing to seek the attorney's fees and costs she labored to

10 earn on behalf ofjudgment plaintiffs Alvarado, Evans, and Boswell is presently and properly

11 before the Special Master. The Court should either refer the duplicative arguments concerning

12 standing to the Special Master, or hold that Ms. Parker has standing.

13

There is no basis in law or public policy for granting the declaratory relief sought by

14 FedEx. Because the Settlement Agreements cannot preclude Ms. Parker from submitting her

15 claims seeking recovery directly from FedEx, the Court should instead hold that Ms. Parker

16 may seek her fees and costs related to representation of the Settlement Plaintiffs. The Court

17 can grant FedEx's Interpleader Motion without prejudicing Ms. Parker's independent right to

18 recovery.

19

20 Dated: January 11, 2008

ROSEN, BIEN & GALVAN, LLP

By San

23

Ul'y M. Kenneth MB.aWldwaleina1k

24

Attorneys for Kay McKenzie Parker

/
25

26

27

28
10
PARKER'S OPPOSITION TO DEFENDANT'S MOTION FOR DECLARATORY RELIEF CASE NO. C 04-0098/0099 SI

 
 Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page1 of 24

1 Sanford Jay Rosen – 62566

2

Holly M. Baldwin – 191317 Kenneth M. Walczak – 247389

3 ROSEN, BIEN & GALVAN, LLP 315 Montgomery Street, 10th Floor
4 San Francisco, California 94104

5

Telephone: (415) 433-6830 Facsimile: (415) 433-7104

6 srosen@rbg-law.com

hbaldwin@rbg-law.com 7 kwalczak@rbg-law.com

8 Attorneys for Kay McKenzie Parker
9

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13 14 EDWARD ALVARADO, et al.,

15

Plaintiffs,

v. 16

17 FEDEX CORPORATION, a Delaware corporation, dba FEDEX EXPRESS,
18

19

Defendant.

Case No. C 04-0098 SI Case No. C 04-0099 SI (White v. FedEx)

20 EDWARD ALVARADO, CHARLOTTE

BOSWELL,

21

Plaintiffs,

22

v.

23 WAUKEEN McCOY, KAY M. PARKER, 24 MICHAEL DAVIS,

Case No. C 09-0485 SI
KAY MCKENZIE PARKER’S NOTICE OF MOTION AND MOTION FOR DECLARATORY RELIEF; MEMORANDUM OF POINTS AND AUTHORITIES

25

Defendants.

26

27

Hearing Date: July 31, 3009 Time: 9:00 a.m. Courtroom: 10, 19th Floor Judge: Hon. Susan Illston

28

[302781-1]

KAY MCKENZIE PARKER’S MOTION FOR DECLARATORY RELIEF, NO.: C 04-0098/0099 SI, C 09-0485 SI

Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page2 of 24

1

TABLE OF CONTENTS

2

Page

3 NOTICE OF MOTION ................................................................................................................. 1

4 MEMORANDUM OF POINTS AND AUTHORITIES .............................................................. 1

5

INTRODUCTION.............................................................................................................. 1

6

PROCEDURAL BACKGROUND.................................................................................... 2

7

A. Proceedings Leading to the Entry of Judgments in Favor of

8

Plaintiffs Alvarado and Boswell and the Appeals in the

Underlying Actions ...................................................................................... 2 9

10

B. Proceedings Leading to Ms. Parker’s Rule 24 Intervention in the Underlying Actions to Pursue her Statutory Attorney’s Fees

11

and Costs From FedEx................................................................................. 4

12

C. Proceedings Since Ms. Parker Intervened in the Underlying

13

Actions ......................................................................................................... 5

14

ARGUMENT ..................................................................................................................... 6

15

I. THE COURT SHOULD GRANT MS. PARKER’S MOTION

FOR DECLARATORY RELIEF. ............................................................... 6 16

17

II. ONCE JUDGMENTS WERE ENTERED, MS. PARKER’S RIGHT TO RECOVER STATUTORY ATTORNEY’S FEES

18

FROM FEDEX BECAME A VESTED PROPERTY RIGHT

FULLY PROTECTED BY CALIFORNIA LAW....................................... 7 19

20

III. MS. PARKER OWNS THE CLAIM FOR STATUTORY ATTORNEY’S FEES FOR HER WORK ON BEHALF OF

21

ALVARADO AND BOSWELL................................................................ 10

22

A. The Court Correctly Decided that Ms. Parker’s Contracts

23

and Documentation with Alvarado and Boswell Did Not Convey Entitlement to the Statutory Fees. ..................................... 10

24 B. If Arguendo Mr. McCoy Is Correct, and Ms. Parker Did

25

Not Have an Enforceable Contract, Under Flannery and

26

Lindelli She Owns the Statutory Fees Claims for Her Work on Behalf of All Prevailing Plaintiffs. .................................. 14

27

28

[302781-1]

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KAY MCKENZIE PARKER’S MOTION FOR DECLARATORY RELIEF, No.: C 04-0098/0099 SI, C 09-0485 SI

Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page3 of 24

1 2 3 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
[302781-1]

IV. PUBLIC POLICY REQUIRES CONTINUED ACKNOWLEDGMENT AND PROTECTION OF MS. PARKER’S VESTED INTEREST IN HER STATUTORY ATTORNEY’S FEES. ............................................................................... 16
CONCLUSION ................................................................................................................ 18
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KAY MCKENZIE PARKER’S MOTION FOR DECLARATORY RELIEF, No.: C 04-0098/0099 SI, C 09-0485 SI

Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page4 of 24

1 2 3 Cases

TABLE OF AUTHORITIES

Page

4 Arizonans for Official English v. Arizona,

520 U.S. 43 (1997)........................................................................................................... .... 17 5

6

Britz, Inc. v. Alfa-Laval Food & Dairy Co., 34 Cal.App.4th 1085 (1995) ............................................................................................ ...... 8

7

Cedars-Sinai Medical Center v. Shewry,

8

137 Cal.App.4th 964, 983 (2006) .................................................................................... .... 12

9 City of Oakland v. Oakland Raiders,

10

203 Cal.App.3d 78 (1988) ............................................................................................... ...... 8

11 City of Santa Monica v. Stewart,

126 Cal.App.4th 43 (2005) .............................................................................................. ...... 8 12

13

Continental Casualty Co. v. Fibreboard Corp., 4 F.3d 777 (9th Cir. 1993) ............................................................................................... .... 10

14

County of San Bernardino v. Ranger Ins. Co.,

15

34 Cal.App.4th 1140 (1995) ............................................................................................ ...... 8

16 Epstein v. Abrams,

17

57 Cal.App.4th 1159 (1997) ............................................................................................ ...... 9

18 Estate of Hilton, 44 Cal.App.4th 890 (1996) .............................................................................................. ...... 8
19

20

Exxon Valdez v. Exxon Mobil Corp., 2009 WL 1652256 (9th Cir. Jun. 15, 2009)..................................................................... ...... 9

21

Feiler v. United States,

22

62 F.3d 315 (9th Cir. 1995) ............................................................................................. ...... 9

23 Flannery v. Prentice,

24

26 Cal.4th 572 (2001) .................................................................................................... passim

25 Fletcher v. Davis, 33 Cal.4th 61 (2004) ........................................................................................................ ...... 9
26

27

Friend v. Kolodzieczak, 72 F.3d 1386 (9th Cir. 1995) ........................................................................................... ...... 9

28

[302781-1]

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Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page5 of 24

1 Hal Roach Studios, Inc. v. Richard Feiner & Co.,

2

896 F.2d 1542 (9th Cir. 1990) ......................................................................................... ...... 7

3

Hardisty v. Hinton & Alfert, 124 Cal.App.4th 999 (2004) .......................................................................................... 17, 18

4

Independent Union of Flight Attendants v. Pan American World Airways,

5

966 F.2d 457 (9th Cir. 1992) ........................................................................................... .... 10

6 Jones v. Union Oil Co.,

7

218 Cal. 775 (1933) ......................................................................................................... ...... 8

8 Ketchum v. Moses,

24 Cal.4th 1122 (2001) .................................................................................................... .... 17 9

10

League of United Latin American Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997) ......................................................................................... ...... 8

11

Lindelli v. Town of San Anselmo,

12

139 Cal.App.4th 1499 (2006) ........................................................................................ passim

13 Lyons v. Chinese Hospital Ass’n,

14

136 Cal.App.4th 1331 (2006) .......................................................................................... .... 15

15 In Re Marriage of Comer,

14 Cal.4th 504 (1996) ...................................................................................................... ...... 7 16

17

Muckleshoot Tribe v. Puget Sound Power & Light, 875 F.2d 695 (9th Cir. 1989) ........................................................................................... .... 14

18 Neary v. Regents of the University of California,

19

3 Cal.4th 273 (1992) ........................................................................................................ .... 17

20 Pacific Gas & Elec. Co. v. Nakano,

21

12 Cal.2d 711 (1939) ....................................................................................................... ...7-8

22 Planned Parenthood of Columbia/Willamette Inc. v. Am. Coal. of Life, 518 F.3d 1013 (9th Cir. 2008) ......................................................................................... ...... 9
23

24

Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720 (9th Cir.1982) ............................................................................................ ...... 9

25 In Re SNTL Corp.,
26 ___ F.3d ____, 2009 WL 1758759 (9th Cir. Jun. 23, 2009) ........................................... ...... 9

27 Société de Conditionnement v. Hunter Engineering Co.,

28

655 F.2d 938 (9th Cir. 1981) ........................................................................................... ...... 7

[302781-1]

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1 Spain v. Mountanos,

2

690 F.2d 742 (9th Cir. 1982) ........................................................................................... ...... 9

3

Spokane Indian Tribe v. United States, 972 F.2d 1090 (9th Cir. 1992) ......................................................................................... ...... 7

4

U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership,

5

513 U.S. 18 (1994)........................................................................................................... .... 17

6 Wakefield v. Mathews,

7

852 F.2d 482 (9th Cir. 1988) ........................................................................................... .... 13

8 Weeks v. Baker & McKenzie,

63 Cal.App.4th 1128 (1998) ............................................................................................ .... 17 9

10

Zambrano v. Oakland Unified School Dist., 229 Cal.App.3d 802 (1991) ............................................................................................. .... 13

11 Statutes
12

Federal Declaratory Judgment Act, 28 U.S.C. § 2201.......................................................... ...... 6 13

14 Cal. Code Civ. Pro. § 128(a)(8) ............................................................................................ .... 17

15 Cal. Code Civ. Pro. § 1856(c) ............................................................................................... .... 12

16 Other Authorities

17 Bernard E. Witkin,

18

Summary of Cal. Law (10th ed. 2005) Contracts, § 749................................................. .... 12

19 Wright, Miller, & Kane, 7C Federal Practice & Procedure: Civil 2d, § 1920 ........................................................ ...... 8
20 Rules
21
22 Federal Rule of Civil Procedure 24.................................................................................. .. passim

23

24

25

26

27

28

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1

NOTICE OF MOTION

2

TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on July 31, 2009, at 9:00 a.m., or as soon thereafter as

4 the matter may be heard, in the Courtroom of the Hon. Susan Illston, located at Courtroom 10,

5 19th Floor, 450 Golden Gate Avenue, San Francisco, Kay McKenzie Parker, former counsel

6 for Plaintiffs and a prevailing party-intervenor in the underlying actions (Nos. C 04-0098 SI

7 and C 04-0099 SI) and a defendant in the declaratory relief action (No. C 09-0485 SI), will and

8 hereby does move the Court for a declaration to be entered in all three actions concerning her

9 vested or choate property right to reasonable statutory attorney’s fees and unreimbursed costs

10 from Federal Express Corporation (“FedEx”) for the work she performed to benefit Edward

11 Alvarado and Charlotte Boswell, who are plaintiffs and have secured judgments in those

12 actions.

13

These plaintiffs’ claims in Case Nos. 04-0098/04-0099 have been merged into

14 judgments against FedEx, that are now on appeal. The Court correctly ordered that Ms. Parker

15 is a full prevailing party-intervenor in Case Nos. 04-0098/04-0099, for the purpose of

16 recovering her statutory attorney’s fees and costs from FedEx. The Court should declare that

17 any future settlement of the judgments may not dispose of Ms. Parker’s vested and choate

18 property interest in statutory attorney’s fees and costs without her participation and agreement.

19 Such a declaration will provide clarity to all parties regarding their rights, and resolve the sole

20 legal issue posed by plaintiffs’ complaint for declaratory relief relative to Ms. Parker.

21

This motion is based on this Notice of Motion, the Memorandum of Points and

22 Authorities, the Declaration of Sanford Jay Rosen and the [Proposed] Order filed herewith, the

23 Court records and files in these three actions (not limited to those referenced herein), and such

24 other materials and argument as may be presented before or at the hearing.

25

MEMORANDUM OF POINTS AND AUTHORITIES

26

INTRODUCTION

27

After separate jury trials resulting in verdicts for plaintiffs, and new trial and related

28 motions, the Court issued amended judgments in favor of plaintiffs Alvarado and Boswell in

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1 Alvarado v. FedEx, No. C 04-0098 SI (collectively with its related case, White v. FedEx, No. C

2 04-0099 SI, referred to as the “underlying actions”). Appeals of the judgments are pending in

3 the Ninth Circuit. See Ninth Cir. Nos. 08-15940, 08-15935, and 08-16088.

4

Plaintiffs’ declaratory relief action (Case No. 09-0485) is based entirely on materials in

5 the record developed in the underlying actions. They seek a declaration essentially to resolve a

6 single legal issue: Can any post-judgment settlement between plaintiffs and FedEx alter Ms.

7 Parker’s right to recover statutory attorney’s fees and unreimbursed costs? The answer is “no,”

8 unless she participates and agrees to settlement of her vested statutory fees and costs.

9

Due to the Court’s entry of the Alvarado and Boswell judgments, Ms. Parker’s right to

10 recover statutory attorney’s fees and costs from FedEx for her work on behalf of plaintiffs is

11 vested, and pursuant to the Court’s subsequent Order she is a full party-intervenor in the

12 underlying cases pursuant to Federal Rule of Civil Procedure 24, for purposes of pursuing her

13 attorney’s fees and costs from FedEx. Her interest in attorney’s fees and costs now is a vested

14 or choate property right that is fully protected by California contract and property law, the

15 United States and California Constitutions, and by federal law governing the rights of

16 intervening parties. Her property rights are rooted in the relevant contracts and documents

17 executed by the plaintiffs pertaining to attorney’s fees, the controlling California appellate

18 decisions concerning attorney’s fee-shifting law, the policies underlying both the California

19 FEHA and pertinent federal law, and federal intervention law.

20

Declaratory relief should now be granted to provide clarity to all parties with respect to

21 any potential post-judgment settlement.

22

PROCEDURAL BACKGROUND

23

A. Proceedings Leading to the Entry of Judgments in Favor of Plaintiffs

Alvarado and Boswell and the Appeals in the Underlying Actions

24

25

Ms. Parker’s retention as counsel for plaintiffs Alvarado and Boswell, her work on their

26 behalf, and her termination on the eve of trial have all been analyzed and proven in the

27 underlying actions. See, e.g, Amended and Supp. Fee Petition, and Supporting Declarations,

28 filed 9/19/08 (Docket Nos. 1217-1222); Opening Brief ISO Parker’s Quantum Meruit Claim,

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1 Supporting Declaration, and Incorporated Documents, filed 3/13/09 (Docket Nos. 1346-1348);

2 Parker’s Post-Hearing Brief Re: Quantum Meruit Entitlement, filed 5/1/09 (Docket No. 1407);

3 Reply ISO Post-Hearing Brief, and Supporting Declaration, filed 6/11/09 (Docket Nos. 1440-

4 1441) (Except where otherwise indicated, all Docket Numbers refer to the underlying Alvarado

5 v. FedEx action, No. C 04-0098 SI.)

6

Shortly before the trials of Alvarado and Boswell’s cases, they and the other individual

7 plaintiffs discharged Ms. Parker, and the Court subsequently relieved her from the case. See

8 Docket Nos. 449-457 & 462. Plaintiff Alvarado prevailed at trial in September 2006. See Jury

9 Verdict, filed 9/5/06 (Docket No. 521); Special Verdict re: punitive damages, filed 9/7/06

10 (Docket Nos. 526-527). Plaintiff Boswell prevailed at trial in April 2007. See Special Verdict,

11 filed 4/11/07 (Docket No. 762).

12

Separate judgments for Alvarado and Boswell were entered in February 2007 and May

13 2007, respectively. See Separate Judgment Re: Edward Alvarado, filed 2/28/07 (Docket No.

14 694) (awarding $500,000 for retaliation); Judgment Re: Charlotte Boswell, filed 5/21/07

15 (Docket No. 823) (awarding $550,000 in compensatory damages for sexual harassment,

16 retaliation, and constructive discharge, and punitive damages of $2,450,000).

17

Later the Court conditionally ordered a new trial of Alvarado’s case, unless he accepted

18 remittitur. See Order Granting Def’s Mot. for New Trial Unless Plaintiff Alvarado Accepts

19 Remittitur, filed 3/18/08 (Docket No. 1035). Plaintiff Alvarado accepted remittitur. See

20 Alvarado Decl. Regarding Remittitur, filed 3/31/08 (Docket No. 1054); Amended Judgment

21 Re: Edward Alvarado, filed 4/1/08 (Docket No. 1057) (awarding reduced sum of $300,000 for

22 retaliation).

23

The Court also reduced as a matter of law the punitive damages component of

24 Boswell’s award to $300,000. See Order Resolving Def.’s Motions, filed 3/18/08 (Docket No.

25 1037); Amended Judgment Re: Charlotte Boswell, filed 3/18/08 (Docket No. 1039) (awarding

26 reduced sum of $550,000 in compensatory damages, plus $300,000 in punitive damages).

27

FedEx appealed both amended judgments. See Ninth Cir. Nos. 08-15940 (Alvarado)

28 and 08-15935 (Boswell). Boswell cross-appealed the Court’s reduction of her punitive

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1 damages. See Ninth Cir. No. 08-16088.

2

Following FedEx’s notices of appeal, Alvarado and Boswell discharged Waukeen

3 McCoy as their counsel and retained Stephen Murphy and Gerald Clausen. See Notices of

4 Substitution of Counsel, Docket Nos. 1234-1235. Subsequently the Court struck Mr.

5 McCoy’s statutory fee applications and barred him from any claim for statutory attorney’s fees

6 for his work representing Alvarado and Boswell. See Order [striking fee petitions], filed

7 3/19/09 (Docket No. 1353). Mr. McCoy appealed that Order. See Ninth Cir. No. 09-15575.

8

B. Proceedings Leading to Ms. Parker’s Rule 24 Intervention in the Underlying

Actions to Pursue her Statutory Attorney’s Fees and Costs From FedEx

9

10

Following her termination by the plaintiffs, Ms. Parker timely asserted her right to

11 recover reasonable attorney’s fees for the work she performed on their behalf, and to recoup

12 the costs she advanced. See Motion to Intervene for Attorney’s Fees and Expenses, and

13 Affidavit in Support, filed 10/10/06 (Docket nos. 572-573). For nearly two years, she litigated

14 the issue of her right to intervene in the underlying actions to pursue her claim for attorney’s

15 fees under the FEHA.

16

On April 7, 2008, the Court’s Special Master determined that Ms. Parker owns the

17 FEHA claim for statutory attorney’s fees and costs from FedEx for her work on behalf of

18 Alvarado and Boswell, and that she is a proper full party-intervenor in the underlying actions

19 under Fed. R. Civ. P. 24, for purposes of securing her attorney’s fees and costs. See Special

20 Master’s Order Regarding Kay Parker’s Fee Petitions, filed 4/7/08 (Docket No. 1062) (“SM

21 Order”). The Special Master determined that her interests were controlled by Flannery v.

22 Prentice, 26 Cal.4th 572 (2001), in which the California Supreme Court held that “attorney

23 fees awarded pursuant to [FEHA] (excluding fees already paid) belong, absent an enforceable

24 agreement to the contrary, to the attorneys who labored to earn them,” id. at 590, and by

25 Lindelli v. Town of San Anselmo, 139 Cal.App.4th 1499 (2006), in which the California Court

26 of Appeal “extend[ed] the reasoning of Flannery to a logical conclusion” and held that

27 discharged counsel have standing to intervene in underlying actions and to pursue their claims

28 for statutory attorney’s fees. SM Order at 8:3-15. “Thus, the special master finds that, under

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1 the applicable law, attorneys are ‘prevailing parties’ with standing to seek [FEHA] fees,

2 provided no enforceable contract states otherwise.” Id. at 9:25-27.

3

On June 5, 2008, the Court adopted the Special Master’s Order, thereby recognizing that

4 Ms. Parker owns those statutory fee claims and is a Rule 24 prevailing party-intervenor in the

5 underlying actions, fully empowered to pursue her statutory attorney’s fees directly from

6 FedEx. See Order Adopting Special Master’s April 7, 2008 Order Regarding Parker’s

7 Standing and Timeliness of Fee Petitions; Setting Schedule for Resolution of Pending Matters,

8 filed 6/5/08 (Docket No. 1145) (“Order Adopting SM Order”). No party appealed this Order,

9 which is final and binding on the parties.

10

C. Proceedings Since Ms. Parker Intervened in the Underlying Actions

11

On January 27, 2009, the Court revisited the issue of Ms. Parker’s entitlement to

12 statutory fees, when it decided FedEx’s Motion for Declaratory Relief in connection with

13 FedEx’s pre-trial settlements with seven other plaintiffs. See Order Granting [inter alia]

14 Defendant’s Motion for Declaratory Relief, filed 1/27/09 (Docket No. 1279) (“1/27/09 FedEx

15 Decl. Relief Order”).

16

The Court decided that the settling plaintiffs’ situation materially differed from that of

17 plaintiffs Alvarado and Boswell, whose claims were merged into judgments following jury

18 verdicts. Comparing the documentation between the seven settling plaintiffs and the lawyers

19 and the documents signed by Alvarado and Boswell, the Court noted an important difference:

20 “[while] the judgment plaintiffs [Alvarado and Boswell] signed a separate addendum explicitly

21 waiving their right to statutory fees; here there is no indication that the settlement plaintiffs

22 signed any such addendum[.]” Id. at 6, n.5. Also, no judgments had been entered in the seven

23 settling plaintiffs’ cases, so fees entitlement was not fixed. Cf. SM Order at 10:3-13:1

24 (analyzing contract language providing for contingent award to attorneys of “40% of any

25 amounts received or recovered by way of settlement after arbitration, mediation, or trial;”

26 concluding original agreement is “silent on the question of statutory fee awards and does not

27 assign all or part of them to the clients.”). Consequently, the Court decided that the

28 “contingency fee upon settlement” clauses contained in the settling plaintiffs’ retainer

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1 agreements constitute “agreements to the contrary” under Flannery, thereby negating Ms.

2 Parker’s right to pursue statutory attorney’s fees from FedEx for her work on behalf of the

3 seven plaintiffs who settled pre-trial. See 1/27/09 FedEx Decl. Relief Order, at 6:3-6.

4

Ms. Parker appealed the Court’s Order denying her statutory fees for her work on behalf

5 of the seven settling plaintiffs. See Ninth Cir. No. 09-15415.

6

Since the Court’s January 27, 2009 Order, the Court has received more complete

7 evidence concerning the formation of the retainer agreements and the course of Ms. Parker’s

8 representation of the individual plaintiffs. See Parker Decl. Re: Client Contracts, filed 4/22/09

9 (Docket No. 1400); Parker’s Post-Hearing Brief, filed 5/1/09 (Docket No. 1407); McCoy

10 Declaration In Opp. to Parker’s Post-Hearing Brief, filed 5/15/09 (Docket No. 1422); Parker’s

11 Reply and Supporting Declaration, filed 6/11/09 (Docket Nos. 1440-1441) (refuting false and

12 misleading claims in McCoy Declaration). The Court has taken sub judice all competing

13 claims to the remainder of the res interpleaded by FedEx to fund its settlements with the seven

14 plaintiffs, including Ms. Parker’s quantum meruit fees and costs claims.

15

In the quantum meruit proceedings, Mr. McCoy argued, contrary to the Court’s January

16 27, 2009 Order, that Ms. Parker never had a valid fee agreement with any of the plaintiffs, or

17 that any agreements she had are void ab initio or voidable.

18

ARGUMENT

19 I. 20

THE COURT SHOULD GRANT MS. PARKER’S MOTION FOR DECLARATORY RELIEF.

21

“In a case of actual controversy within its jurisdiction, except with respect to Federal

22 taxes, … any court of the United States, upon the filing of an appropriate pleading, may

23 declare the rights and other legal relations of any interested party seeking such declaration,

24 whether or not further relief is or could be sought. Any such declaration shall have the force

25 and effect of a final judgment or decree and shall be reviewable as such.” Federal Declaratory

26 Judgment Act, 28 U.S.C. § 2201. “Under the Declaratory Judgment Act, a federal court may

27 declare the rights and other legal relations of parties to a case of actual controversy … The

28 purpose of the Declaratory Judgment Act is to relieve potential defendants from the

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1 Damoclean threat of impending litigation which a harassing adversary might brandish, while

2 initiating suit at his leisure – or never.” Spokane Indian Tribe v. United States, 972 F.2d 1090,

3 1091-92 (9th Cir. 1992), citing Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d

4 1542, 1555 (9th Cir. 1990); Société de Conditionnement v. Hunter Engineering Co., 655 F.2d

5 938, 943 (9th Cir. 1981).

6

Ms. Parker’s ownership of the statutory fees for her work on behalf of Alvarado and

7 Boswell is fixed. She is the only person who can pursue or settle those fees, under Flannery,

8 Lindelli, and federal party intervention law. In the instant action, Alvarado and Boswell have

9 expressly admitted that they had fee agreements with Ms. Parker. See Amended Complaint,

10 filed 2/20/09 (Case No. 09-0485 SI, Docket No. 5), ¶¶ 4-5. Interpreting those contracts, the

11 Court correctly determined that as to Alvarado and Boswell, there is no enforceable agreement

12 to the contrary that would negate Ms. Parker’s right to statutory fees. Moreover, if arguendo

13 Mr. McCoy is correct that the contracts never existed or were void ab initio, then there never

14 was an “enforceable” contract that conveyed Ms. Parker’s interest in the statutory fees from

15 her to anyone else.

16

There are no additional facts to find here or material factual disputes. The Court should

17 issue a declaration that Ms. Parker’s right to recover statutory attorney’s fees is her vested and

18 choate property right, thereby guiding all parties in any post-judgment settlement.

19 II. 20

ONCE JUDGMENTS WERE ENTERED, MS. PARKER’S RIGHT TO RECOVER STATUTORY ATTORNEY’S FEES FROM FEDEX BECAME A VESTED PROPERTY RIGHT FULLY PROTECTED BY CALIFORNIA LAW.

21

Under California fees law, Ms. Parker is the sole owner of statutory attorney’s fees and

22 costs for her work on behalf of Alvarado and Boswell and the only person who can pursue that

23 property right in the absence of an enforceable contract to the contrary. See Flannery, 26 Cal.

24 4th at 590; Lindelli, 139 Cal.App.4th at 1513-1514. (See Discussion in Part III-B, infra at 14-

25 16, as to the absence of any such contract.)

26

Under California property law, “A judgment is a vested property right … [and] [t]he

27 remedy by which a judgment may be enforced is itself a vested property right.” In Re

28 Marriage of Comer, 14 Cal.4th 504, 541-542 (1996) (Mosk, J., concurring), citing Pacific Gas

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1 & Elec. Co. v. Nakano, 12 Cal.2d 711, 712-713 (1939) (tort claim merged in final judgment is

2 a debt); Jones v. Union Oil Co., 218 Cal. 775, 778 (1933) (remedy is part of obligation of

3 contract and subject to constitutional protection against impairment) (other citations omitted).

4 See also County of San Bernardino v. Ranger Ins. Co., 34 Cal.App.4th 1140, 1149 (1995)

5 (vesting of entitlement occurs on vesting of claims, and is not disturbed by passage of contrary

6 statute during pendency of appeal). It follows that Ms. Parker’s property right in her statutory

7 fees is a property right that vested with the entry of the initial judgments in favor of Alvarado

8 and Boswell, and certainly when the Court entered amended judgments. See Estate of Hilton,

9 44 Cal.App.4th 890 (1996) (enactment of new statutory fee rates did not operate retroactively

10 to decrease entitlement vested by interim fee award); see also Britz, Inc. v. Alfa-Laval Food &

11 Dairy Co., 34 Cal.App.4th 1085, 1107 (1995) (interest accrued as of date arbitration award

12 fixed entitlement); City of Oakland v. Oakland Raiders, 203 Cal.App.3d 78, 85 (1988) (interest

13 began accruing on date of judgment).

14

Ms. Parker’s property right in her reasonable statutory attorney’s fees and unreimbursed

15 costs from FedEx was confirmed on June 5, 2008, when the Court held that she is entitled to

16 intervene in the Alvarado and Boswell cases under Federal Rule of Civil Procedure 24.

17

Under federal law, Ms. Parker’s intervention to recover her statutory attorney’s fees

18 from FedEx makes her a full party in the underlying action. See SM Order at 17-18-20; Order

19 Adopting SM Order at 1:25-27 (“[T] the Court finds that the Special Master correctly applied

20 the relevant and controlling legal authority to determine that Ms. Parker’s fee petitions are

21 timely, and that Ms. Parker has standing to seek statutory fees pursuant to FEHA.”)

22

She now possesses all rights held by the original parties. “[A]s a general rule,

23 intervenors are permitted to litigate fully once admitted to a suit.” League of United Latin

24 American Citizens v. Wilson, 131 F.3d 1297, 1304 (9th Cir. 1997), citing Wright, Miller, &

25 Kane, 7C Federal Practice & Procedure: Civil 2d, § 1920, at 488-491. Cf. City of Santa

26 Monica v. Stewart, 126 Cal.App.4th 43, 87 (2005) (under California law, “when a party

27 qualifies and enters an action as an intervenor, it is vested with all of the same procedural

28 rights and remedies of the original parties”) (citations omitted). Ms. Parker’s rights as a full

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1 party-intervenor include the right to protect her vested interest in statutory attorney’s fees from

2 interference by the original parties.

3

Under federal law an intervening attorney’s property right to fees becomes vested or

4 choate when the basis for entitlement is first established. See Feiler v. United States, 62 F.3d

5 315, 317 (9th Cir. 1995) (claim for attorney’s fees became choate as of date of order awarding

6 specific performance). An order of entitlement to attorney’s fees, like this Court’s decision that

7 Ms. Parker has standing to pursue the fees claim and to intervene in the underlying cases to do

8 so, is like a judgment for these purposes. See, e.g., Friend v. Kolodzieczak, 72 F.3d 1386,

9 1391-92 (9th Cir. 1995), cert. denied, 516 U.S. 1146 (1996) (interest on fee award accrues as

10 of date entitlement is fixed); Spain v. Mountanos, 690 F.2d 742, 747-48 (9th Cir. 1982) (same);

11 see also Exxon Valdez v. Exxon Mobil Corp., 2009 WL 1652256, *2 (9th Cir. Jun. 15, 2009)

12 (“When the legal and evidentiary basis of an award is thus preserved, post-judgment interest is

13 ordinarily computed from the date of [the judgment’s] initial entry”), citing Planned

14 Parenthood of Columbia/Willamette Inc. v. Am. Coal. of Life, 518 F.3d 1013 (9th Cir. 2008).

15

In bankruptcy law, too, a statutory fees-shifting property interest is a claim, just like any

16 other vested property interest, that can be asserted and discharged, usually as a general

17 unsecured creditor’s claim, even if the amount was not set prior to a defendant’s bankruptcy

18 filing. See, e.g., In Re SNTL Corp., ___ F.3d ____, 2009 WL 1758759 (9th Cir. Jun. 23, 2009)

19 (unsecured creditor can seek allowance of statutory attorney’s fees arising out of a prepetition

20 claim); Rosen Decl. ISO Parker Decl. Relief Motion, filed herewith, at ¶¶ 3-6.

21

Under California law, Ms. Parker holds the same position as an attorney who perfects a

22 charging lien for her services. California law strongly disfavors any effort to interfere with an

23 attorney’s fixed entitlement to recover fees. See Epstein v. Abrams, 57 Cal.App.4th 1159,

24 1169-1170 (1997) (perfected lien “entitl[es] the attorney to any available equitable remedy

25 necessary to effect payment of his fee for services rendered in connection with his client’s

26 claim out of any recovery upon that claim”; denying court approval of settlement reached in

27 order to defeat attorney’s valid fees claim); Fletcher v. Davis, 33 Cal.4th 61, 68-69 (2004)

28 (charging lien entitles attorney to prevent judgment debtor or settling party from remitting

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1 recovery to the client until fees dispute is resolved, grants attorney the right to have the court

2 interfere to prevent payment by judgment debtor to creditor in fraud of the attorney’s right to

3 it) (citations omitted). See also Order Denying Plaintiffs’ Motion to Extinguish Liens, filed

4 5/20/08 (Docket No. 1135); Order Denying Motion to Dissolve Interpleader and Immediately

5 Release Settlement Funds, filed 2/25/09 (Docket No. 1314).

6

It follows that the other parties to the underlying actions cannot dispose of Ms. Parker’s

7 statutory fees unless she participates in settlement negotiations, and approves of any agreement

8 reached. See Continental Casualty Co. v. Fibreboard Corp., 4 F.3d 777, 780 (9th Cir. 1993)

9 (refusing to vacate underlying judgment where parties did not agree, because “[t]his case does

10 not involve a bilateral agreement intended to moot an appeal, followed by a joint motion for

11 vacatur. It involves mootness brought about by unilateral action, and a motion by one party

12 strongly opposed by the other.”); Independent Union of Flight Attendants v. Pan American

13 World Airways, Inc., 966 F.2d 457, 460 (9th Cir. 1992) (unilateral request for vacatur after

14 settlement requires remand to district court for determination of “the consequences and

15 attendant hardships of dismissal or refusal to dismiss”; balancing of “the competing values of

16 finality of judgment and right to relitigation of unreviewed disputes”), citing Ringsby Truck

17 Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 721-22 (9th Cir. 1982).

18 III. 19 20 21

MS. PARKER OWNS THE CLAIM FOR STATUTORY ATTORNEY’S FEES FOR HER WORK ON BEHALF OF ALVARADO AND BOSWELL. A. The Court Correctly Decided that Ms. Parker’s Contracts and
Documentation with Alvarado and Boswell Did Not Convey Entitlement to the Statutory Fees.

22

Through the prism of the Flannery and Lindelli decisions, the Special Master analyzed

23 the Alvarado and Boswell retainer agreements with Mr. McCoy, and the two Addenda by

24 which they acknowledged Ms. Parker as their co-equal attorney.

25

In July 2002, each pl aintiff executed an “Engagement for Legal

26

Services” with the Law Offices of Waukeen McCoy and attorne y Michael Davis. See Parker Decl. (Docket 932), Exhibit A. Thi s

27

document states the following with regards to attorneys’ fees:

28

We have agreed to the foll owing attorney fee

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1

arrangement: (a) 33 1/3% of any amounts received or

2

recovered by way of settleme nt prior to mediation and/or arbitration; (b) 40% of any am ounts received

3

or recovered by way of se ttlement after arbitration,

mediation, or trial.

4

5

Id. Subsequently, in or around January 2004, each plaintiff

executed “Addendum No. 1 to

Attorney Representation

6

Agreement,” which substitutes Park er as “co-counsel no. 1” in

place of Davis. See Parker Decl. (Docket 587), Exhibit E.

7

Addendum No. 1 pr ovides that “C LIENT understands and agrees

8

that ATTORNEY and CO-COUNSEL NO. 1 will share attorneys ’

fees described in the Agreement.” Id. In or around August 2004,

9

each plaintiff executed “Add endum No. 2 to

Attorney

10

Representation Agreement” adding John Burris as co-counsel. See Parker Decl. (Docket No. 932), Ex hibit B. Addendum No. 2 states

11

that “CLIENT understands and agrees that ATTORNEY, CO-

COUNSEL NO. 1 and CO-COU NSEL NO. 2 will share

12

proportionately the contingenc y attorneys’ fees de scribed in the

13

Agreement.” Id.

14 SM Order at 10:3-17 (footnote omitted).

15

The Special Master found that none of the documents described in the above passage

16 constitutes an “agreement to the contrary” that would bar Ms. Parker’s personal ownership of

17 the statutory attorney’s fees following judgment in favor of the plaintiffs under Flannery. See

18 SM Order at 12:25-13:1 (“based on a plain reading of the contracts, the absence of any explicit

19 waiver or assignment of attorneys’ fees, the interpretation of the contracts by plaintiffs

20 themselves, and the public policy concerns raised by FedEx’s proffered interpretation, the

21 special master concludes that the ‘Engagement for Legal Services’ is silent on the question of

22 statutory fee awards and does not assign all or part of them to the clients”); id. at 13:2-6

23 (“neither Addendum No. 1 nor Addendum No. 2 speaks to statutory fees”).

24

Thus the Special Master essentially posed three questions: (1) did Ms. Parker have any

25 contract with plaintiffs Alvarado and Boswell? (2) Was any such contract enforceable?; and

26 (3) Was any such contract “to the contrary,” i.e., did it operate as a waiver of Ms. Parker’s

27 right to recover statutory fees? See SM Order at 11:4-15:1.

28

[302781-1]

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Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page18 of 24

1

He answered these questions as follows: while [1] Ms. Parker appeared to perform legal

2 services pursuant to a valid contract, SM Order at 10:3-11:3, it is [2] not at all clear that the

3 agreement is enforceable in this context (to the contrary, assigning 60 percent of statutory fees

4 to the clients, as urged by FedEx, “may violate public policy,” id. at 12:14-24); and [3]

5 moreover, “there is no evidence that the parties to the agreement intended it to relate to [post-

6 judgment] statutory fees” claims. Id. at 12:9-10. In other words, Question (3) was dispositive.

7 In particular, the Special Master did not determine whether contracts were enforceable,

8 because he found that the agreements among Ms. Parker, Mr. McCoy, and the individual

9 plaintiffs are silent on the issue of attorney’s fees.

10

The post-judgment conduct of Alvarado, Boswell, and McCoy demonstrates that the

11 retainer agreements did not deal with statutory fees. See Cal. Code Civ. Proc. § 1856(c)

12 (where the terms of a contract are silent about an issue, they may “be explained or

13 supplemented by course of dealing or usage of trade or by course of performance”). “The

14 conduct of the parties may be, in effect, a practical construction thereof, for they are probably

15 least likely to be mistaken as to the intent.” Cedars-Sinai Medical Center v. Shewry, 137

16 Cal.App.4th 964, 983 (2006), quoting 1 Witkin, Summary of Cal. Law (10th ed. 2005)

17 Contracts, § 749, p. 838 (emphasis in original).

18

As the Special Master found: “there is no evidence that the parties to the agreement

19 intended it to relate to statutory fees. Plaintiffs have not argued that the contract be interpreted

20 in this manner. Indeed, they apparently entered into separate agreements with Mr. McCoy to

21 address how statutory fees would be allocated, indicating the issue of statutory fees was not

22 explicitly covered by the initial agreement.” SM Order at 12:9-13. See also Tr. of 1/4/08

23 Telephone Hearing (Docket 1022, Exh. A) at 23:17-24:2 (McCoy stating that his prejudgment

24 contracts do not deal with entitlement to statutory fees).

25

The Court adopted the Special Master’s Order in full on June 5, 2008. Later, in its

26 Order granting FedEx declaratory relief in connection with the fees issues concerning Ms.

27 Parker’s work on behalf of the seven settlement plaintiffs, the Court noted the significance of

28 the post-judgment documents signed by Alvarado and Boswell. “[T]he judgment plaintiffs

[302781-1]

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KAY MCKENZIE PARKER’S MOTION FOR DECLARATORY RELIEF, No.: C 04-0098/0099 SI, C 09-0485 SI

Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page19 of 24

1 signed a separate addendum explicitly waiving their right to statutory fees; [whereas] there is

2 no indication that the settlement plaintiffs signed any such addendum[.]” 1/27/09 FedEx Decl.

3 Relief Order at 6, n.5.

4

Adopting the Special Master’s April 7, 2008 Order, the Court also correctly decided

5 that, if the parties to the relevant agreements had intended for them to cover statutory fees, the

6 language they used did not convey that intent. Nowhere do the documents hiring Ms. Parker

7 speak of fees awarded or recovered after judgment, the moment at which statutory fees are

8 fixed. See Section II, supra at 7-10. Nor do the contracts ever refer to statutory fees

9 themselves.

10

First, on their face, the contracts appear to addre ss only what the

11

attorneys will receive “by way of settlement.” The contract provides for 33 1/ 3 percent of amounts recovered by settlement

12

prior to mediation or arbitrati on, and 40 percent of am ounts

recovered by settlement after media tion, arbitration or trial. The

13

contracts do not c ontemplate what would happe n if there was no

14

settlement and the matter was resolv ed solely by trial. While the intent of the contracts presumably was to allocate to the attorney 40

15

percent of any amount recove red by way of settlement after

arbitration or m ediation or recovered by way of trial, that is not

16

how they were written. Moreover, even if they had been written to

17

provide the attorneys with 40 percent of “a mounts received or

recovered by way of . . . trial,” there is not hing indicating that

18

would include not j ust the j ury award but any s ubsequently

19

awarded statutory fees.

20 SM Order at 11:15-12:2.

21

And the Court correctly determined that the language used in the contracts is

22 insufficient as a matter of law to convey her right to statutory attorney’s fees.

23

Courts generally require that any waiver of the right to statutory

fees be explicit. See, e.g., Z ambrano v. O akland Unified School

24

Dist., 229 Cal.App.3d 802, 805 (1991 ) (“California courts have

25

generally been hesitant to find implied waivers of [statutory]

attorney fees.”); Wakefield v. Mathews, 852 F.2d 482, 484 (9th Cir.

26

1988) (“Waiver of [statutory] attorneys’ fees shoul d not be

27

presumed from a silent record.” ). The special master finds no explicit waiver of fees in the “Engagement for Legal Services.”

28

[302781-1]

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Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page20 of 24

1 Id. at 12:2-12:10. See also Muckleshoot Tribe v. Puget Sound Power & Light, 875 F.2d 695,

2 698 (9th Cir.1989) (similar requirement of explicit waiver in federal courts).

3

In its order denying Ms. Parker standing to obtain statutory attorney’s fees for her work

4 on behalf of the seven settling plaintiffs, the Court again began its analysis with question (3)

5 above. It does not appear to have determined whether the contracts were enforceable. The

6 Court first quoted Flannery’s observation that “absent an enforceable agreement to the

7 contrary,” FEHA attorney’s fees belong to the attorneys who labored to earn them, 1/27/09

8 FedEx Decl. Relief Order at 5:25-28, quoting 26 Cal.4th at 590 (emphasis added), then held

9 “that these agreements constitute an ‘agreement to the contrary’ under Flannery, and thus Ms.

10 Parker does not have standing to seek fees under FEHA directly from FedEx.” 1/27/09 FedEx

11 Decl. Relief Order at 6:3-4.

12

The bottom line is that due to the post-judgment addenda signed by Alvarado and

13 Boswell, purporting to grant all statutory fees to Mr. McCoy, their documentation negates any

14 argument that these plaintiffs expected to have an interest in any statutory fee award. As noted

15 by the Special Master: “Therefore, based on a plain reading of the contracts, the absence of any

16 explicit waiver or assignment of attorneys’ fees, the interpretation of the contracts by plaintiffs

17 themselves, and the public policy concerns raised by FedEx’s proffered interpretation … the

18 ‘Engagement for Legal Services’ is silent on the question of statutory fee awards and does not

19 assign all or part of them to the clients.” SM Order at 12:25-13:1; see also id. at 13:2-12 (Ms.

20 Parker’s standing is also not affected by Addendum No. 1 to the contract, Addendum No. 2 to

21 the contract, or the post-judgment contracts assigning statutory fees to McCoy). Accord,

22 1/27/09 FedEx Decl. Relief Order at 6, n. 5.

23

B. If Arguendo Mr. McCoy Is Correct, and Ms. Parker Did Not Have an

Enforceable Contract, Under Flannery And Lindelli She Owns the Statutory

24

Fees Claims for Her Work on Behalf of All Prevailing Plaintiffs.

25

In the quantum meruit proceedings, Mr. McCoy recently argued that, contrary to the

26 Court’s January 27, 2009 Order, Ms. Parker never had a valid fee agreement with any

27 individual plaintiff, or that any agreements she had are void ab initio. See Transcript of

28 4/23/09 Hearing (filed as Docket No. 1442) at 66:15-68:6; Parker’s Post-Hearing Brief, filed

[302781-1]

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Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page21 of 24

1 5/1/09 (Docket No. 1407), at 3:1-5:24; McCoy Memorandum in Response, filed 5/15/09

2 (Docket No. 1421), at 2:16-3:8 & 6:19.

3

Mr. McCoy contends that Addenda 1 and 2 to the initial retainer agreement are not

4 contracts at all, but merely agreements to divide an attorney’s fee, which are void or voidable

5 for failure to comply with California Rule of Professional Conduct 2-200. McCoy

6 Memorandum at 6:19-7:10. Mr. McCoy contends, inter alia, that the documents lack

7 necessary signatures in violation of Rule 2-200. Id. See also 4/23/09 Tr. at 63:13-20 (“MR.

8 BASS: ... “There was no written agreement when [Ms. Parker] came into the case as to a

9 division of fee. No client signed a consent to any particular fee sharing. … [O]n the facts, there

10 was no agreement; no client signed a document consenting to any disclosed terms of any fee-

11 sharing agreement.”) Notably, Mr. McCoy’s post-hearing brief in the quantum meruit

12 proceedings says nothing about the post-judgment, statutory fee agreements signed by

13 plaintiffs Alvarado and Boswell. See Docket No. 1421. The Court has yet to pass on Mr.

14 McCoy’s contentions in the quantum meruit proceedings.

15

Under Flannery and Lindelli, if Ms. Parker’s agreements were void ab initio (or

16 possibly even if just voidable) it would be as though there were no contract at all between the

17 clients and Ms. Parker, and the Court’s decision that Ms. Parker had contracted away her

18 property right to statutory fees against FedEx for her work on behalf of the seven settling

19 plaintiffs was wrong. See Flannery, 26 Cal.4th at 590 (2001); Lindelli, 139 Cal.App.4th at

20 1513-1514 (2006); Lyons v. Chinese Hospital Ass’n, 136 Cal.App.4th 1331, 1345 (2006) (“It is

21 undisputed that relief obtained through a settlement may qualify a plaintiff as the prevailing

22 party, even in the presence of a stipulation disclaiming liability on the merits.”). See also SM

23 Order at 13:27-14:6 (summarizing FedEx’s argument that Flannery only applies in the absence

24 of a contract).

25

As discussed in Section III-A, supra at 10-14, the Court does not appear to have decided

26 whether the contracts are enforceable. See also SM Order at 13:27-14:18 (refuting FedEx

27 argument that Flannery only applies in the absence of a contract). If the Court now were to

28 find that Ms. Parker has no valid contract with any plaintiffs or that those contracts were void,

[302781-1]

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KAY MCKENZIE PARKER’S MOTION FOR DECLARATORY RELIEF, No.: C 04-0098/0099 SI, C 09-0485 SI

Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page22 of 24

1 under Flannery and Lindelli the contracts would not be “enforceable agreements to the

2 contrary” negating her right to statutory fees. Thus, Ms. Parker would own the statutory fees

3 for her work on behalf both of the judgment plaintiffs and the seven settlement plaintiffs, and

4 she would be entitled to pursue her statutory fees claims and claims for unreimbursed costs for

5 her work on behalf of all these plaintiffs directly against FedEx.

6

So far as the ongoing quantum meruit proceedings are concerned, regardless of whether

7 the agreements are enforceable, Ms. Parker has made the requisite showing that the settling

8 clients knew she was working on their behalf and expected payment. See Reply ISO Parker’s

9 Post-Hearing Brief, filed 6/11/09 (Docket No. 1440), at 3:8-4:22. Thus she is fully entitled to

10 pursue her quantum meruit and costs claims, which are now sub judice with the Court. See id.

11 And Ms. Parker repeats her assurance that she views her quantum meruit claims as failsafe

12 protection of her interests, in the event that she is awarded no statutory fees, or the statutory

13 fees are insufficient to compensate her for her work. See Opening Brief Re: Quantum Meruit

14 at 13, n.4.

15 IV. PUBLIC POLICY REQUIRES CONTINUED ACKNOWLEDGMENT AND

PROTECTION OF MS. PARKER’S VESTED INTEREST IN HER

16

STATUTORY ATTORNEY’S FEES.

17

As the Special Master observed, it is essential that courts protect the rights of attorneys

18 discharged before trial. “Rendering attorneys discharged prior to trial ineligible for statutory

19 fee awards would discourage counsel from taking civil rights claims, would benefit

20 wrongdoing defendants by not requiring them to pay costs of pre-trial preparation, and would

21 encourage subsequent collateral lawsuits between discharged counsel and former clients.” SM

22 Order at 16:5-8. See also id. at 15:8-16:3 (summarizing “a number of public policies served by

23 vesting ownership of statutory fee awards in attorneys,” as recognized by Flannery and

24 Lindelli, including reducing the likelihood of windfalls to both defendants and plaintiffs,

25 reducing likelihood of subsequent litigation between discharged counsel and former clients).

26

Awarding a fully compensatory fee to Ms. Parker, an attorney who labored for years to

27 win these meritorious FEHA cases, promotes the fundamental public policy behind FEHA

28 itself. “[V]est[ing] ownership of [FEHA] fees … in counsel, when, for whatever reason, no

[302781-1]

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Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page23 of 24

1 contract exists disposing of them, thus diminishing the risk of noncompensation or

2 undercompensation, will enhance the likelihood that attorneys who undertake FEHA cases will

3 be fully compensated, and to that extent will enhance the fee provision’s effectiveness in

4 encouraging counsel to undertake FEHA litigation.” Flannery, 26 Cal.4th at 584-585

5 (citations and footnote omitted); Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 1172

6 (1998). See also Lindelli, 139 Cal.App.4th 1499 (successful intervention and fee claim under

7 private attorney general statute, CCP § 1021.5, for completion of legal services); Ketchum v.

8 Moses, 24 Cal.4th 1122, 1133-1134 (2001) (public policy requires compensation for all hours

9 reasonably spent, to encourage attorneys to undertake such cases).

10

Declaratory relief also furthers the principle that “mootness by reason of settlement does

11 not justify vacatur of a judgment under review.” U.S. Bancorp Mortg. Co. v. Bonner Mall

12 Partnership, 513 U.S. 18, 29 (1994). Cf. Arizonans for Official English v. Arizona, 520 U.S.

13 43, 71-75 (1997) (vacatur appropriate under “exceptional circumstances” not present here,

14 including unilateral action by prevailing party to moot underlying judgment).

15

These principles are at large now in California law as well. The California legislature

16 has enacted a statutory presumption against vacating public judgments by means of private

17 settlement for many of the same reasons, finding that “stipulated reversal undermines judicial

18 efficiency by encouraging parties to try cases rather than settle them, and erodes public

19 confidence in the judiciary by fostering the perception that litigants having sufficient wealth

20 may buy their way out of the ordinary collateral consequences of public adjudications.”

21 Hardisty v. Hinton & Alfert, 124 Cal.App.4th 999, 1006 (2004) (Kaye, P.J.) (discussing

22 enactment of Cal. Code Civ. Pro. § 128(a)(8) to reverse majority opinion in Neary v. Regents

23 of the University of California, 3 Cal.4th 273 (1992)), citing Neary, 3 Cal.4th at 294-295

24 (Kennard, J., dissenting).

25

Since the passage of Section 128(a)(8), California courts “deny requests for stipulated

26 reversal if there is a reasonable possibility that the interests of nonparties or the public could be

27 adversely affected by reversal. If there is no reasonable possibility of adverse impact on third

28 parties or the public, then the court should weigh the parties’ reasons for requesting stipulated

[302781-1]

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KAY MCKENZIE PARKER’S MOTION FOR DECLARATORY RELIEF, No.: C 04-0098/0099 SI, C 09-0485 SI

Case3:04-cv-00098-SI Document1449 Filed06/26/09 Page24 of 24

1 reversal against the other institutional concerns, [namely] the erosion of public trust likely to

2 result from an appearance that the nullification of a judgment can be purchased, and the risk

3 that the availability of stipulated reversal will reduce the incentive for pretrial settlements.”

4 Hardisty, 124 Cal.App.4th at 1006 (citations omitted). Settlement to defeat Ms. Parker’s fixed

5 and choate property rights risks just that: an “adverse impact on third parties.” Declaratory

6 relief is appropriate to make it clear to all parties that this will not happen.

7

CONCLUSION

8

For the foregoing reasons, the Court should enter a declaration concerning the

9 respective rights of the parties to this action and the underlying actions. The Court should state

10 Ms. Parker’s continuing right to recover statutory attorney’s fees and unreimbursed costs for

11 her work representing plaintiffs Alvarado and Boswell, and that no post-judgment settlement

12 may be made that purports to resolve her fees claims unless she participates and agrees to such

13 settlement.

14 Dated: June 26, 2009

Respectfully submitted,

15

ROSEN, BIEN & GALVAN, LLP

16

17

By: s/ Sanford Jay Rosen Sanford Jay Rosen

18

Holly M. Baldwin

Kenneth M. Walczak

19

Attorneys for Kay McKenzie Parker

20

21

22

23

24

25

26

27

28

[302781-1]

18
KAY MCKENZIE PARKER’S MOTION FOR DECLARATORY RELIEF, No.: C 04-0098/0099 SI, C 09-0485 SI

 
 Case 3:03-cv-02878 Document 208-8 Filed 01/17/2007 Page 2 of 6
EXPERT REPORT OF MARY DUNN BAKER, Ph.D. SATCHELL, et ai., v. FEDEX EXPRESS
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
Case No. C 03-2659; C 03-2878 SI
ERSGROUP Tallahassee, Florida
January 10,2007

Case 3:03-cv-02878 Document 208-8 Filed 01/17/2007 Page 3 of 6
I. INTRODUCTION Counsel for FedEx Express (FedEx or the Company) asked me to review and
evaluate Dr. Richard Drogin's December 20, 2006 (12/06) report that he prepared for this case. l This report contains my comments about and responses to Dr. Drogin's analyses and opinions as of this date. 2
Because Dr. Drogin's analyses are not properly structured and/or his models omit important factors, the disparities that his studies reveal are often exaggerated. Furthermore, as the numbers of observations included in the analyses are very large, the studies produce differences that are highly statistically significant, even though, as a practical matter, the differences are small.3
In summary, my opinion is that: • Dr. Drogin's conclusion that minority employees are overly concentrated in the
lower paying jobs is misleading. Relative to relevant external labor market availability rates, FedEx's Western Region employs an extraordinarily large number of African-American employees at every level. By the end of the study period, FedEx employed Latinos in numbers consistent with their representation at every level. 4
1 An outline of my credentials is provided in my December 20, 2006 (12/06) report and is not repeated here. Appendix D provides my current c. v. and a list of cases in which I have given testimony over the reriod 2002-2006.
I have not been able to replicate many of Dr. Drogin's analyses or to locate in the electronic files that he provided the programs and procedures necessary to fully understand how he conducted his analyses. Therefore, I may amend or supplement this report at a later date. 3 See Section III of my 12/06 report. 4 As discussed in my 12/06 report, Census 2000 data are not sufficiently refined to make a complete assessment of how the FedEx Western Region workforce compares to the ethnic composition of the relevant external labor markets. As my analyses ofpromotion and pay indicate that, in general, Latinos were promoted in numbers consistent with their representation among JCATS applicants and in proxy

Case 3:03-cv-02878 Document 208-8 Filed 01/17/2007 Page 4 of 6
• because Dr. Drogin's analyses of disciplinary actions and performance reviews do not account for some of the important factors that influence these outcomes, the disparities that his models reveal are exaggerated. Moreover, the disciplinary action and performance rating disparities detected by the statistical analyses are likely explained by true raciaVethnic differences in performance levels as the significant differences are attributable to decisions made by African-American and Caucasian managers, as well as managers of other races. This assertion is further supported by the FAMIS data which show that minority non-hub employees are late to work and absent from work significantly more often than their Caucasian counterparts.
• some of the significant shortfalls in minority promotions that Dr. Drogin's analyses reveal are attributable to the fact that he completely ignored readily accessible actual applicant data and instead used proxy pool benchmarks. In some cases, the proxy pool availability rates exaggerate the raciaVethnic composition ofthe individuals qualified for and interested in the relevant jobs. My analyses, which rely upon the actual applicant data (and proxy pool data where necessary), in general, show that Latino employees were selected for promotion in numbers consistent with their representation. The few instances of significant shortfalls for African-Americans that these models reveal are explained by further analysis of the data.
• Dr. Drogin's analyses ofracial and ethnic differences in compensation produce misleading results because his compensation models are not properly structured and omit important factors that influence these decisions. Analyses that are appropriately structured and account for some of the factors that Dr. Drogin's studies omit reveal that there are very few instances of significantly negative minority/Caucasian pay rate differences.
• Dr. Drogin contends that his analyses of the JCATS data show that manager discretion created significant disparities in application approval and selections for posted jobs that are adverse to minority employees. However, alternative studies reveal that these results are attributable in part to his flawed assumptions. Furthermore, there are plausible explanations for the negative differences that he does not consider.
pools. and were, in some instances, paid significantly more than si.milar Caucas ians, the: shortfalls in Latino representation rates relative to local labor market availability found·in the early years of the study period
suggest that tbe Census 2000 data used to prepare the workforce analysis likely overntate Latino availability for Western Regionjobs.
2

Case 3:03-cv-02878 Document 208-8 Filed 01/17/2007 Page 5 of 6
II. WORKFORCE DESCRIPTION At Section D of his 12/06 report, Dr. Drogin presents descriptive statistics
regarding the racial and ethnic composition of FedEx's Western Region workforce which show that, with the exception of the racial composition of Operations Managers, AfricanAmerican and Latino representation rates decline as the pay level of FedEx jobs increases. As I illustrated in my 12/06 report, this trend is not unusual and the fact-finder should not construe these descriptive statistics to mean that FedEx relegates minority
employees to the lower rungs of its occupational ladder. To the contrary, as I
demonstrated in my 12/06 report, in every year during the period 1999-2006, the Western Region employed many more African-Americans at every level than would be expected given their availability in relevant local labor markets.
In the early years of the study period, the available Census data suggest that fewer Latinos were employed at some levels than the Census 2000 data predict. As I explained in my 12/06 report, Census 2000 data are not sufficiently refined to make a complete assessment of how this workforce compares to Latino representation in the relevant external labor markets. In any event, by the end ofthe study period, in general, across the Western Region, Latinos were employed at all levels in numbers equal to or greater than their local labor market availability rates predict.
III. DISCIPLINARY ACTION ANALYSES At Section K and Appendices D-25a (D-25b),5 Dr. Drogin presents the results of
his analyses of the differences between the rates at which African-American (Latino) and Caucasian employees were subject to disciplinary action. He concludes that these
, D-# refers to Tables and Appendices in Dr. Drogin's 12/06 report.
3

Case 3:03-cv-02878 Document 208-8 Filed 01/17/2007 Page 6 of 6
statistically significant. Therefore, in my opinion, these data suggest that the fact that the top ranked candidate is not always the person selected has no adverse impact on AfricanAmericans.
Tab 7L reports the results of the analysis of Latino selections from pools that include applicants (whether approved or not) who were passed-over and selected candidates.52 As Tab 7L shows, the number of Latinos selected from these pools in every job group and across all job groups is consistent with the number expected given their representation among these applicants.
Tab 8L reports the results of this analysis that includes approved applicants only. This analysis also shows that the number of Latinos selected for these positions is not significantly different from the statistical expectation. Therefore, the data fail to reveal any evidence that any pass-overs that may have occurred had an adverse impact on Latino employees.
" Tab 7L replaces Appendix Q.L in my 12/06 report and Tab 8L replaces Table 56L.
37

 
 Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 2 of 19

..BENCHMARKING.. THE REPRESENTATION OF AFRICAN AMERICANS AND LATINOS IN SELECTED JOB GROUPS AT FEDEX: A REBUTTAL OF DR. MARY BAKER
Marc Bendick, Jr., Ph.D. Jannary 2007
Hcuv~ fl·?)
Marc Bendick, Jr., Ph.D.
Jannary ~, 2007

BENDICK AND EGAN ECONOMIC CONSULTANTS, INC.

4411 WESTOVER PLACE, NW WASHINGTON, DC 20016

phone: (202) 686-0245

fax: (202) 363-4429

bendickegan@mindspring.com www.bendickegan.com

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 3 of 19
I. Introduction I. I am a principal in Bendick and Egan Economic Consultants, Inc., 4411 Westover Place, NW, Washington, D.C. 20016. I earned a Ph.D. in economics from the University of Wisconsin in 1975 and have engaged in the full-time practice of economics, specializing in employment, for approximately 30 years. Over that period, I have been a researcher, policy analyst, and university lecturer, as well as a consultant to employers in the public, corporate, and non-profit sectors. I am the author of more than 100 research publications, including books, articles in scholarly journals, and Congressional testimony. My resume has been provided as an attachment to an earlier report I presented in this case. I
2 My professional activities have included litigation on employment discrimination, including analysis of the availability of job-seekers in different demographic groups; processes for recruiting, hiring, training, assigning, evaluating, compensating, promoting, and discharging employees; policies and practices for managing a demographically-diverse diverse workforce; and economic damages associated with denial or diminution of employment opportunities. I have participated in 137 cases, working on behalf of both employers and employees, and my expert testimony has been accepted in 18 federal district courts.2
I On December 16, 2004, I presented a report titled The Expected Representation ofRace/Ethnic Minorities When Selected Vacancies are Filled at Fedex Express: A Labor Market Perspective. My resume was provided as Attachment A to that report.
That report discussed whether FedEx "casual" employees should be considered internal hires (as Dr. Drogin asserted) or external hires (as Dr. Baker then asserted). I strongly disagreed with Dr. Baker, and in subsequent analyses, she has apparently adopted my position. 2 A list of these cases has been provided as allaclunent B to my earlier report (see footnote 1).
2

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 4 of 19

3.

I have prepared the present report using the same sorts of procedures,

infonnation sources, and standards of care I use throughout my scholarly research, and I

apply models, concepts, reasoning, and assumptions which command general acceptance

among my professional peers. I hold the opinions I present to a reasonable degree of

scientific certainty.

4. For my work on this case, I am being compensated at the rate of $325

per hour, plus out-of-pocket expenses.

L

i"

II. My Assignment 5. In Satchell et al. v. Fedex Express, I have been requested by plaintiffs' counsel to discuss Section IV (pages 9-15) of Dr. Mary Baker's report dated December 20, 2006 (hereafter, "Baker December 2006 Report"). That section is titled "Racial and Ethnic Composition of the Workforce," and it compares the composition of the FedEx workforce against that of other employers. Such comparisons are commonly referred to by economists and business analysts as " benchmarking." 6. In the present report, 3 I discuss conceptual errors In Dr. Baker's benchmarking ·analysis. I then present an alternative benchmarking analysis which

l In addition to the sources listed in Attachment C to my earlier report (see footnote 1), I have reviewed or had available the following documents while preparing the present report:
Report of Mary Dunn Baker, Ph.D., Satchell, et 01., v. Fedex Express, December 20, 2006, with appendices (Baker December 2006 Report) ,
Rebuttal Report of Mary Dunn Baker, Ph.D. , Satchell, et 01., v. Fedex Express, September 8, 2006.
Richard Drogin, Statistical Analyses of Race and Ethnic Patterns in Federal Express Workforce, December 20, 2006.
Order Re: Plaintiffs' Motion for Class Certification, September 27, 2005.

3

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 5 of 19

corrects these errors. This corrected analysis shows substantial, statistically significant under-representation of African American and Latino employees, the opposite of the conclusions reached by Dr. Baker from her benchmarking analysis.

III. Dr. Baker's First Error: Benchmarking Irrelevant Job Groups

7.

"Benchmarking" simply means making compansons between a

quantitative measure for one company (here, FedEx) and the same quantitative measure

in some data source outside the company (here, 2000 Census data). The technique is

potentially applicable to a wide range of human resource management processes -- for

example, pay levels, promotional rates, or discipline rates. But in this case, Dr. Baker

applies it only to representation -- the proportion of employees who are African

American or Latino:4 She presents her representation findings in tables IA for African

Americans and IL for Latinos in her report.

8.

Those tables examine 24 Fedex Job Groups. However, five of those Job

Groups -- FreightlMaterials Handler, Checker/Sorter, Handler/Shuttle Driver, Operations

Agent, and Handler -- command average pay rates of less than $12 per hour and are what plaintiffs' expert Dr. Richard Drogin labels "low hourly" positions.s As I understand the

Deposition ofRobert SperofJ, July 22, 2004. If at a future date jnformation relevant to this report is refined, corrected, or supplemented, I would like the opportunity to modify this report to reflect this additional information. • Dr. Baker describes her work as "... statistical analyses that compare the racial/ethnic composition of FedEx employees to minority representation in relevant occupations in the local labor markets [as reported in 2000 Census data] ...." (Baker December 2006 Report, p. 11).
SDrogin Report 0/ December 20, 2006, Table I, page 10,
4
'.

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 6 of 19

issues in this case,6 plaintiffs allege that African Americans and Latinos are treated less

favorably than their non-minority counterparts while employed in "low hourly" Job

Groups but do not allege that they are under-represented in those "low hourly" positions.

Logically, allegations concerning treatment while in a position -- for example,

concerning pay, perfonnance evaluations, tenninations, and promotions -- cannot

nonnally be tested by analyzing representation -- the proportion of positions held by

African Americans and Latinos.

9.

Plaintiffs do allege that Afiican Americans and Latinos are under-

promoted from "low hourly positions" to "high hourly positions + salaried" positions at

FedEx, and such allegations can be tested through a representation benchmarking

analysis, at least indirectly.7 However, the representation figures relevant to that I
I'
examination are African American and Latino ' representation in the "high hourly +

salaried" positions to which "low hourly" workers might be promoted, not the

representation of African Americans and Latinos in the "low hourly" positions

themselves.

10.

This error in Dr. Baker's analysis can be corrected by deleting the rows

for the five "low hourly" Job Groups (FreightlMaterials Handler, Checker/Sorter,

Handler/Shuttle Driver, Operations Agent, and Handler) from Dr. Baker's Tables lA and

'See Consolidated Amended Complaint and Demand For Jury Trial, November II, 2003, pp. 1-2, and Order He: Plaintiffs' Motionfor Class Certification, September 27, 2005, pp. 1-3.
7 I say "indirectly'~ because representation numbers in the higher level positions reflect not only promotions into these positions but also attrition from these positions, promotions or transfers out of these positions, and external hires into the positions. Minority representation in "higher hourly + salaried" positions at a rate lower than a Census benchmark is therefore consistent with an allegation of under-promotion into these positions, but not definitive proof of it.
5

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 7 of 19
1L. The removed Job Groups accounted for about 30% of the employees Dr. Baker's analyzed in these tables.8
IV. Dr. Baker's Second Error: Not Benchmarking the Relevant Measure
11. As a standard of comparison for benchmarking minority representation in FedEx Job Groups, Dr. Baker uses data from the 2000 Census on the representation of African Americans and Latinos employed in the Census occupational categories which include the Fedex Job Groups at issue in this case. That is a reasonable standard of comparison.9
12. However, the benchmark which Baker computes from these Census data does not provide a direct, undistorted test ofthe allegations in this case. Concisely stated, the plaintiffs' overall allegation concerning promotions is that " ...the representation of minorities drops at each step up the promotion ladder."lo Accordingly, the most directly relevant "benchmarking" test of this allegation would divide minority representation in "higher level" positions by their representation in lower level positions to compute a
• This figure is based on the DGO and AGFS divisions combined. The errors I am correcting apply to both. 9 However, it is not the only reasonable standard, or even the most reasonable one. In particular. reflecting
extensive research by economists and other social scientists demonstrating that employment discrimination
against African American and Latinos continues to operate throughout the American labor market (see paragraph 27, below), it might be argued that African Americans and Latinos arc under-represented in Census data for some or all of the "higher hourly + salaried" occupations because of discrimination against them by employers other than FedEx. In that circumstance, an alternative standard of·availability less subject to occupational discrimination might be more appropriate than Dr. Baker's occupationally-based approach. For example, a standard might be based on 2000 Census data for all non-disabled blue-collar workers who are high school graduates but not college graduates. Exploration of such alternatives is beyond the present scope of my rebuttal. 10 Order Re: Plaintiffs ' Motion for Class Certification, September 27, 2005, p. 2.
6

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 8 of 19

"promotional ratio" between the two levels. That "promotional ratio" can then be

directly compared against the parallel ratio computed from counts ofFedEx's workforce. 13. In Bendick Table One, I use 2000 Census datall to generate those

benchmarks promotional ratios. ' Row (27) of Bendick Table One reports that, for African

Americans, the promotional ratio is 52.8%. This means that, among all persons in the

2000 Census in the relevant Census occupational titles, African Americans are

represented in "higher hourly + salaried" positions at 52.8% the rate they are represented

in "low hourly" positions. Similarly, row (27) of Bendick Table One reports that the

Census benchmark promotional ratio for Latinos is 69.3%. 14. In Bendick Table Two, I use FedEx employment counts for 200012 to

compute FedEx's promotional ratios, so that they can be compared against the Census

,

benchmark promotional ratios. Row (27) of Bendick Table Two reports that FedEx's

"

promotional ratio for African Americans is 49.7%, which is 3.1 percentage points lower

than the Census benchmark promotional ratio of 52.8%. Row (27) of Bendick Table Two

also reports that FedEx's promotional ratio for Latinos is 57.7%, which is 11.6

percentage points lower than the Census benchmark promotional ratio of 69.3%.

IS. The finding that FedEx's promotional ratios for African Americans and

Latinos are lower than the Census benchmarks is consistent with the plaintiffs' allegation,

stated in paragraph 12 above, that "...the representation of minorities drops at each step

up the promotion ladder." The findings are inconsistent with the conclusions Dr. Baker

" I use Census figures supplied by Dr. Baker in her Tables IA and IL without independently verifying their accuracy.
12 I again use data from Dr. Baker's Tables IA and IL wilhoul independently verifying their accuracy, Allhough Dr. Baker analyzes a range of years, in my report I discuss only 2000, the year mosl directly comparable to the 2000 Census. The errors apply in paraUel to other years as well.

7

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 9 of 19

Bendick Table One

Derivation from Dr. Baker's 2000 Census Data* of Benchmark African American and Latino "Promotion Ratios"

~a)

Ibl

leI

Idl

leI

/0

African Americans

Latinos

Job Group
(1 ) Operations Manager (2) Dispatcher (3) Ramp Driver (') Ramp AgentITrunk (5 ) Courier/Ramp Agent (6) Courier/Feeder Agent (7 ) Courier (8 ) Courier/Swing Driver (S ) Service Assurance Agent (10) Service Agent (11 ) Team Leader (12) Shuttle Driver (13) Ramp AgenUFeeder
(14 1 CourIer/Handler
(15) Truck Control Agent (1.) Inti Checker (17) Input Auditor (18 ) Information Agent (19) Dangerous Goods Agent

Average Pay Rate
$4,558.98 $19.14 $17.60 $17.30 $17.42 $16.95 $16.53 $16.00 $15.99 $15.43 $14.99 $13.93 $13.46 $13.19 $12.83 $12.49 $12.35 $12.35 $12.18

Total FedEx Employees (African American + White)
627 172 801 218
1 60 3.841 550 71 760 281 189 1 45 43 41 61 71 82

Census 2000 'I. African American
Repl'8sentatlon In Relevant Occupations
7.8'1. 12.2"k 13.70/, 12.7% 1.2% 2.5% 12.5%12.1". 15.4% 18.1'1. 19.0", 16.5% 22.2% 17.3·... 25.1-4 38.3% 36.1"; 20.8°,\ 22.5%

Total FedEx Employees (Latinos + NonHispanic Whites)
494 160 724 220 1 68 4,000 588 63 694 170 174
1 64 20 13 15 49 79

Census 2000 'I. Latino
Reporesentation In Relevant Occupations
18.6°,{. 2O.S". 26.3% 19.70/. 4.7% 16.4-1. 29.5". 29.8% 21.5°.4 27.3". 21 .8% 38.4% 48.5',4 43.4"; 21.3% 33.0',4 53.9"_ 27.2% 32.5%

(20 )

Weighted Average for "High + Salaried" Job Groups

Hourly

7,915

13.6%

7,597

27.8%

(21 ) FreIght/MaterIal Handler (22) Checker/Sorter (23) Handler/Shuttle Driver (2') Operations Agent (25) Handler/Shuttle Driver

$11.91 $11.84 $11 .56 $11.41 $1D.82

Weighted Average for "Low Hourty· (26) Job Groups

723 457 101 72 2,610
3,963

29.2'/, 34.3% 22.2'''20.6", 23.6%
25.8%

479 164 95 38 2,041
2,81]

50.5"; 49.9% 33.6'1, 26.6% 37.S';'
40.1%

CENSUS BENCHMARK (27I "PROMOTION RATIO"
[row (20) I row (26)]

52.8%

69.3%

• Data are from Tables 1A and 1L In the Baker December Z006 Report.

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 10 of 19

Bendick Table Two

"

Derivation from Dr. Baker's FedEx Data" of FedEx's African American and Latino "Promotion Ratios"

(.)

(b)

(e)

J<!l

le\

In

African Americans

Latinos

Job Group
(1 ) Operations Manager (2 ) Dispatcher (3 ) Ramp Driver (') Ramp AgentfTrunk (5) Courier/Ramp Agent (6) Courier/Feeder Agent (7) Courier (6) Courier/Swing Driver (') Service Assurance Agent (10 ) Service Agent (11 ) Team Leader (12) Shuttle Driver (13 ) Ramp AgentfFeeder (1') Courier/Handier . (15 ) Truck Control Agent (16 1 Inti Checker (17) Input Auditor (16 ) Information Agent (19) Dangerous Goods Agent

Average Pay Rate
$4,558.98 $19.14 $17.60 $17.30 $17.42 $16.95 $16.53 $16.00 $15.99 $15.43 $14.99 $13.93 $13.46 $13.19 $12.83 $12.49 $12.35 $12.35 $12.18

Total FedEx Employees (African American
+Whne)

African American
Employees

627

188

172

38

801

250

218

55

.1

0

60

1

3,841

891

550

140

71

19

760

246

281

165

189

109

1

0

45

19

43

33

41

36

61

53

71

38

82

32

Census 2000 % African American
Representation In Relevant Occupations
30.00/. 22.1°1. 31.2% 25.2% 0.0% 1.7% 23.2°;' 25.5'/0 26.8% 32.4% 58.70/. 57.7% 0.0% 42.2-/0 76.7% 87.8% 86.9% 53.5%
39.0"0

Total FedEx Employees (Latinos + Non-
Hispanic Whites)

Latino Employees

494

55

160

26

724

173

220

57

1

0

68

9

4,000

1,050

588

178

63

11

694

180

170

54

174

94

1

0

64

38

20

10

13

8

15

7

49

16

79

29

Census 2000 % Latino
Reporesentatlon In Relevant Occupations
11.10/0 16.30/. 23.9% 25.9% 0.0% 13.2% 26.3% 30.3% 17.5% 25.9% 31.8% 54.0% 0.0% 59.4% 50.0% 61.5% 46.7"0 32.7-Al 36.7%

(20 Weighted Average for "High Hourly ) + Salaried" Job Groups

7,915

2,313

30.4%

7,597

1,995

26.30/_

(21 ) Freight/Material Handler (22) Checker/Sorter (23) Handler/Shuttle Driver (2') Operations Agent (25) Handler/Shuttle Driver

$11.91 $11.84 $11.56 $11.41 $10.82

723 457 101 72 2,610

456 407 42 44 1,478

63.1-10 89.1% 41.60/. 61.1% 56.6%

479

212

.164

114

95

36

38

10

2,041

909

44.3% 69.5% 37.9% 26.3% 44.5%

Weighted Average for "Low Hourly" (26) Job Groups

3,963

2.427

61.2%

2,817

1,281

45.5%

FEDEX "PROMOTION RATIO"
. (27) [row (20) ( row (26)]

49.7%

57.7%

• Data are from Tables 1A and 1L In the Baker December 2006 Report.

q

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 11 of 19
drew from her benchmarking analysis that: 13 In every year of the study period, FedEx employed, at every level, at least twice as many African-Americans as their presence in the relevant external labor market would predict.
In every year, except 1999, the overall number of Latinos employed in the Western Region was consistent with or greater than the expectation, given their representation in the external labor market. 16. How did Dr. Baker's benchmarking analysis lead her to these erroneous conclusions? The problem arises from her approach of benchmarking minority representation in each "high hourly + salaried" FedEx Job Group directly against Census representation data. That approach ignores the circumstance that entry into these Job Groups at FedEx is obtained largely by promotion from within FedEx,15 and that FedEx's minority representation in the "low hourly" Job Groups from which employees are promoted is substantially higher than in Census data for those "low hourly" occupations. Thus, in Dr. Baker's calculations, Fedex's lower-than-benchmark promotional ratios are obscured by the company's higher-than-benchmark minority representation in "low hourly" positions.
13 Baker December 2006 Report, p. 2. " Baker December 2006 Report, p. 13. 15 FedEx's policy of promoting from with is set forth, for example, in the company's People Manual, especially Section 4-15, and discussed in t)1e Deposition ofRobert SperojJ, July 22, 2004, pp. 30-31.
10

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 12 of 19

V. Translating Correct Benchmarks into ShortfaUs

17. Dr. Baker's benchmarking analysis does have one virtue, however. It

states its results in a clear, relevant f011l1 -- as a shortfall in the number of FedEx

,

employees in the "high hourly + salaried" Job Groups. To report my benchmarking

!

analysis in this same clear, relevant f011l1, I have prepared Bendick Table Three, which is

a corrected version of Dr. Baker's Table IA (for African Americans) and Bendick Table

Four, which is a corrected version of Dr. Baker's Table IL (for Latinos). '6

18. My two tables parallel Dr. Baker's Tables IA and IL except for three

corrections:

a. Based on Section III above, I have removed from the tables the five

rows for "low hourly" Job Groups.

b. Based on Section IV above, I have replaced Dr. Baker's Census 2000

expected representation of African Americans and Latinos with a figure

which applies the Census benchmark promotional ratios for these groups

to FedEx's own representation of these groups in the "low hourly" Job

Groups from which promotions are made. '7

,& These tables present results only for 2000. The same corrections can be applied in parallel to all the years Dr. Baker analyzed, and they will have a parallel effect on her findings.
17 According to row (26) of Bendick Table Two, African American represent 61.2% of "low hourly" FedEx employees. According to row (27) of Bendick Table One, the Census benchmark promotion ratio for African Americans is 52.8%. The product of these figures is an expected representation of 32.8% in FedEx's "high hourly + salaried" Job Groups. Accordingly, 32.8% appears in colunut (d) ofTable Three.
According to row (26) of Bendick Table Two, Latinos represent 45.5% of "low hourly" FedEx employees. According to row (27) of Bendick Table One, the Census benchmark promotion ratio for Latinos is 69.3%. The product of these figures is an expected representation of 31.5% in FedEx's "high hourly + salaried" Job Groups. Accordingly, 31.5% appears in column'(d) ofTable Four.
11

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 13 of 19

Bendick Table Three

Benchmarking Analysis of African American Representation In the FedEx Workforce (Corresponding to Dr. Baker's Table 1A)
After Correcting Three Errors in Dr, Baker's Benchmarking *

la)
Job Group

Ibl
Average Pay Rate

Icl
Total Employees
(African Americans + White.)

Idl
Cansus 2000 Benchmark for Expected
African American Represen·
tatian

lel

(fl

lol

Ihl

Actual Number of
FedEx African American Employees

Expected Number of
African
American Employees

Difference
between
Actual and
Expected (. means shortfall)

Continuity Corrected Number of Standard Deviations

(1) Operations Manager (2) Dispatcher (3) Ramp Driver (4) Ramp AgentITrunk (5) CourlerlRamp Agent (6) Courier/Feeder Agent (7) Courier (8) CourlerfSwlng Driver (9) Service Assurance Agent (10) Service Agent (11 ) Team Leader (12) Shuttle Driver (13) Ramp AgenVFeeder (14 ) Courier/Handier (15) Truck Control Agent (16) Inti Checker (17) Input Auditor (18) Information Agent (19) Dangerous Goods Agent

$4.558.98 $19.14 $17.60 $17.30 $17.42 $16.95 $16.53 $16.00 $15.99 $15.43 $14.99 $13.93 $13.46 $13.19 $12.83 $12.49 · $12.35 $12.35 $12.18

627 172 801 218
1 60 3,841 550 71 760 281 189 1 45 43 41 61 71 82

32.8·~
32.8% 32,S". 32.S'/, 32.8-1. 32.8% 32.80/. 32.80/, 32.8% 32.8% 32 .8°/. 32.8% 32.S'I. 32.0'/, 32.8'/0 32.8% 32.8'/0 32.8'/, 32.8'1.

188

205.7

·17.7

38

56.4.

·18.4

250

262.7

-12 .7

55

71.5

-16.5

0

0.3

.Q.3

1

19.7

·18.7

891

1.259.8

·368.8

140

180.4

-40.4

19

23.3

-4.3

246

249.3

·3.3

165

92.2

72.8

109

62.0

47.0

0

0.3

.Q.3

19

14.8

4.2

33

14.1

18.9

36

13.4

22.6

53

20.0

33.0

38

23.3

14.7

32

26.9

5.1

(20) TOTAL

7,915

32.8%

2,313 2,596.1 -283.1

7.0

.. The three corrections are to: 1. Exclude five "low hourly" Job Groups for which Plaintiffs make no allegation of under·represenlatlon.

2. Base the Census 2000 benchmark for expected African American representation on actual Fedex African American representation In "lOW hourly" Job Groups multiplied by the Census.t>ased "promotion ratio" for African Americans.

3. Compute standard deviations for all Job Groups together.

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 14 of 19

Bendick Table Four

Benchmarking Analysis of Latino Representation in the FedEx Workforce (Corresponding to Dr. Baker's Table 1B) After Correcting Three Er.rors in Dr. Baker's Benchmarking •

(a)

(b)

(eJ

_(d)

~

In

/e1

/M1

Jeb
Group

Average Pay Rate

Total Employees (Latinos +
nonHispanic Whiles)

Census 2000 Benchmark for Expected
Latino Represen-
tatlo

Actual Number of
FedEx
Latino Employees

Expected Number of
Latino Employees

Difference between Actual and Expected (-means shortfall)

ContinuIty Corrected Number of Standard Deviations

(1 ) Operations Manager (2) Dispatcher (3) Ramp Driver (') Ramp AgenVTrunk (5) Courier/Ramp Agent (6 ) Courier/Feeder Agent (7) Courier (8) Courier/Swing Driver (9) Service Assurance Agent (10 ) Service Agent (11 ) Team Leader (12) Shuttle Driver (13) Ramp AgonUFoeder (1' ) Courier/Handler (15) Truc:k Control Agent (16) Inti Checker (17) Input Auditor (18 ) Information Agent (19) Dangerous Goods Agent
(20) TOTAL

$4,SS8.98 $19.14 $17.60 $17.30 $17.42 $16.9S $16.53 $16.00 $15.99 $lS.43 $14.99 $13.93 $13.46 $13.19 $12.83 $12.49 $12.35 $12.35 $12.18

494 160 724 220
1 68 4,000 588 63 694 170 174 1 64 20 13 15 49 79
7,597

31.5'1. 31.5% 31.5%
31 .5% 31.5". 31.5%
31.S% 31,S'. 31.5%
31.5% 31.5'/,
31 .5% 31 .5'/. 31 .5'10 31.5', 31 .5'/. 31.5'1. 31.S'Io 31.5%
31.5%

SS 26 173 57 0 9 1,050 178 11 180 54 94 0 38 10 8 7 16 · 29
1,995

tSS.6 50.4 228.1 69.3 0.3 21.4 1,260.0 185.2 19.8 218.6 53.6 54.8 0.3 20.2 6.3 4.1 4.7 15.4 24.9
2,393.1

-100.6 -24.4 -S5.1 ·12.3 .().3 -12.4 -210.0 ·7.2 -8.8 -38.6 0.5 39.2 .().3 t7.8 3.7 3.9 2.3 0.6 4.1
-398.1

10.4

• The three corrections are to:

1. Exclude five "low hourly" Job Groups for which Plaintiffs make no allegation ohmder-representatlon.

2. Base the Census 2000 benchmark for expected Latino representation on actual Fadex Latino representation In "low hourly'" Job Groups multiplied by the Census-basad "promotion ratio" for Latinos.

3. Compute standard deviations for all Job Groups togethar.

13

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 15 of 19

c. I have computed the "statistical significance" of these shortfalls -- that is,

the number of standard deviations -- not for individual "high hourly +

salaried" Job Groups but for the 19 Job Groups together. This approach

corresponds to plaintiffs' allegations, which concern the overall

promotional process from "low hourly" positions as a group to "high

hourly + salaried" positions" as a group, not to any Job Group

individually.

19. According to row (20) of Table Three, in 2000, FedEx had a shortfall of

283 African American employees iii "high hourly +. salaried" Job Groups, compared to

the number it would have had if it had been promoting them from "low hourly" Job

Groups at Census benchmark rates. According to row (20) of Table Four, in 2000,

FedEx had a shortfall of 398 Latino employees in "high hourly + salaried" Job Groups,

I·

compared to the number it would have had if it had been promoting them from "low

hourly" Job Groups at Census benchmark rates.

20. Both shortfalls are strongly "statistically significant," with the African

American shortfall corresponding to 7.0 standard deviations and the Latino shortfall

corresponding to 10.4 standard deviations.

21. Both shortfalls directly contradict Dr. Baker's conclusion, quoted in

paragraph 15 above, that Fedex had a "longfall" of both African American and Latino

employees in these Job Groups -- that is, more' African American and Latino employees

than would be expected based on a Census benchmark.

14

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 16 of 19
VI. Dr. Baker's Further Misinterpretations of Benchmarking
22. In interpreting findings from her own benchmarking analyses, Dr. Baker incorrectly applies the logic underlying such analyses in two important ways.
23. The first error in logic appears in Dr. Baker's attempts, on pp. 14-15 of her report, to "explain away" the under-representation of Latinos in 1999 which her own benchmarking analysis reports.
24. The primary benefit of the benchmarking technique as it is being applied in this case is that it separates questions of the availability of qualified workers from questions of the employers' treatment of those workers. It does so by basing the benchmark on persons already employed in the relevant occupations and therefore presumably qualified to hold such positions. In that circumstance, differences between an employer's representation figures and the benchmark representation figures cannot be explained by lack of workers' qualifications because the presence or absence of those qualifications is reflected in both the company's representation numbers and the benchmark representation numbers.
25. On pages 14-15 of her report, Dr. Baker speculates that the underrepresentation of Latinos in 1999 estimated in her own benchmarking analysis might be explained by Latinos' lack of English language fluency or U.S. citizenship. But, for the reason just explained in paragraph 24, such an explanation is a non sequitur which cannot possibly explain such a shortfall. Language and citizenship considerations have already been "factored out" by the benchmarking technique itself.
15

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 17 of 19
26. A related error in logic infects Dr. Baker's benchmarking analysis more fundamentally. On page 10 of her report, she notes, "Census 2000 data....show that, in general, the percent African-American and the percent Latino among workers tends to be higher among ... .lower paid than higher paid Census occupations." She illustrates this point with her Figures 1 and 2, which present Census data for the occupations containing the FedEx Job Groups at issue in this case in four local labor markets.
27. What Dr. Baker appears to be implying here is that, because racial inequality in employment is widespread among employers other than FedEx, it cannot possibly be due to discrimination because employers in general do not discriminate. Unfortunately, the assumption that employers in general do not discriminate is directly contradicted by decades of research by economists and other socials scientists which clearly documents that discrimination against racial/ethnic minorities continues to operate in major ways throughout the American labor market today. IS In that circumstance, the benchmark Census figures to which Fedex is being compared almost certainly incorporate some degree of less favorable treatment of minority employees than their equally-qualified counterparts by employers other than FedEx.
28. Throughout her benchmarking analysis, Dr. Baker implies that, so long as the degree of race/ethnic inequality at FedEx is no greater than that in the benchmark Census data, then the benchmarking analysis proves that FedEx is not treating its minority employees less favorably than its equally-qualified non-minority employees.
18 The research underlying this statement is far too voluminous to summarize easily, Useful overviews can be found in Ronald G. Ehrenberg and Robert S. Smith, Modern Labor Economics. Ninth Edition, Chapter 12 ("Gender, Race and Ethnicity in the Labor Market"), and Marc Bendick, Jr. "Adding Testing to the Nation's Portfolio of Information on Employment Discrimination," In Michael Fix and Margery Turner (eds), A National Report Card on Discrimination in America: The Role of Testing. Washington: The Urban Institute, 1999, pp. 47-68.
16

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 18 of 19
But the discussion in paragraph 27 makes clear that such a conclusion cannot be drawn. Estimated shortfalls of minority representation at FedEx compared to what would be expected based on a Census benchmark are not estimates of the total shortfall due to FedEx's less favorable treatment of its minority employees. Instead, they are only estimates of the shortfall due to greater unfavorable treatment of minorities at FedEx than by the average employer employing workers in the same occupations in the same local labor markets. The total shortfall, compared to a situation of completely equal treatment of minorities and their equally-qualified counterparts, is undoubtedly larger than the figures estimate either by Dr. Baker in her report (see her tables lA and lL) or by me in the present report.
VII. Conclusions
29. Based paragraphs 7 though 28 above, I draw four principal conclusions. a. First, representation benchmarking is a useful analytical technique for
testing plaintiffs' allegations of under-promotion in this case. b. Second, Dr. Baker's version ofrepresentation benchmarking is so flawed
that her findings and conclusions provide essentially no meaningful information about the correctness of those allegations. However, appropriate modifications can readily convert her analysis into a meaningful test of the allegations. c. Third, that modified analysis demonstrates that African Americans and Latinos are under-represented in "high hourly + salaried" positions within FedEx in a way consistent with plaintiffs' allegation of under-promotion
17

Case 3:03-cv-02659 Document 601-9 Filed 01/17/2007 Page 19 of 19 from "low hourly" to "high hourly + salaried" positions. The shortfal1s for both groups are substantial (in 2000, at least 283 positions for African Americans and 398 positions for Latinos) <l;nd strongly statistically significant.
d. The estimated shortfalls stated in the third conclusion, which are based on benchmarking FedEx against the average employer employing similar workers, conservatively under-estimate the total shortfall in minority representation compared to situation of completely equal treatment of minority employees and their equally-qualified non-minority counterparts.
18

 
 Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 23 of 94

James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452) 2 Eve H. CeJ:Yantez (SEN 164709) Chimenel. Kellner (SBN 2269411)
3 L1EFF, CABRASER, HEIMANN & BERNSTEIN, LLP
4 275 Battery Street, 30th Floor
San FranCISCO, CA 94111-3339 5 Telephone: (415) 956-1000
Fa<simile: (415) 956-1008 6
ToddM. Sohneider (SEN 158253) 7 Guy B. Wallace (SBN 176151)
Joslrua Koneclcy (SBN 182897) 8 SCHNEIDER & WALLACE
180 Montgonuory Street, Suite 2000 9 San Francisco, CA 94104
Telephone: (415) 421-7100 10 Facsimile: (415)421-7105
II JOHN BURRIS (SEN 69888) 7677 Oakport Bldg., Suite 1120
12 Oakland, CA 94612 Telephone: (510) 839-5210
13 Fa<simil.: (510) 839-3882
14
15 Cw.s COIIIIS.I

MICHAEL S. DAVIS (SBN 160045) 345 Hill Street San F""",isco, CA 94109 Telephone: (415) 282-4315 Fac.mule: (415) 358-5576
KAY MCKENZIE PARKER (SBN 143140) 225 Bush Street, 16th Floor SanFrancisco~ CA 94104 Telephone: (415)227-9622 Facsimile: (415) 227-4522
WAUKEEN Q. MCCOY (SBN 168228) 703 Market Street, Suite 1407 San Francisco, CA 94103 Telepho,ne: (415) 675-7705 Facsunile: (415) 675-2530

16 UNITED STATES DISTRICT COURT
17 NORTHERN DISTRICT OF CALIFORNIA
18

19 DERRICK SATCHELL,KALIN! BOYKIN, VALERlEBROWN,RlCK
20 GONZALES, CYNTHIA GUERRERO, RACHEL HlJTClIlNS, TYRONE
21 MERRITT, KELVlN SMITH, SR, and KEN STEVENSON, on hsbalfof
22 themselves and all othen; similarly situated,
23

CasoNo. C 03-2659 SI; C 03-2878 SI EXPERT REPORT OF
wq! lAM T. BIELBY, PH.D.

24 v.
25 FEDEX EXPRESS, • Delaware corporation,
26
Defendant 27~ _________~__________~

28

547860.1

--

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 24 of 94 EXPERT REPORT 01 WlLLIAM T. BIEI.BY
Demc/; SdWhoU, .. at. v. FtJEx FtqJress WIllIam T. Ilielby, Ph.D.
J.... 2006
WiIlimn T. J!ielby
16ISl_LD.llolr.S36
Unimll'ior, Ml 49129-0536
312-497·9134
bielby@sao,"I"""' ....

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 25 of 94
EXPERT REPORT OF WILLIAM T. BIELBY Derrick Satchell. el al v. FellEx Express June 2006
ASSIGNMENT, QUALIFICATIONS, AND MATERIALS REVIEWED 1. I have been retained by the law fum ofLief!; Cabra,er, Heimann /11; Bem,rein.
counsel furplalntiffil in DerrickSatchell, et at v. FedBx Express. I have been asked to review testimony and materials describing the personnel policies and praetices at the Western Region ofFedE>< Express ("PedE><") pertaining to oompensation, promotion,
perfumanc. reviews, discipline, and equal employment opportunity (EOO), and to assess
whether they create barriers to career advancement and fair compensation for the company's African American and Hispanic hourly employees and African American Operations Managers employed in Domestic Ground Operations ("000") and Air Ground Freight Services C'AOFS"). Unles, noted otmtwise, when I use the term "FedEJ{'t below,l am referring to 000 and AGFS functional divisions within the company's Western Region.
2. I have testified as an expert wim.., in both California Superior Court and :IC:deral court on cases involving workplace discrimination, A fist of cases in which Ihave been identified as an expert or have given expert testimony since 2001 is attached as ExlubitA.
3. I received aPhD. nSociology from the University ofWisconsin-Madison in
1976. !also have a B.S. in Electrical Engineering and a M.A. in Social Sciences from the

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 26 of 94
2
University ofIUinois. Iam ProfeS8orofSocioiogy at the University ofPennsylvania, where I am also affiliated with the Population Studies Center, Prior to that.l served for twentyooSeven years as a faculty member in the Departmmt ofSociology at the University ofCalifornia, Santa Barbara (UCSB), where I chaired my department from 1992 to 1998. At UCSB I was also affiliated with UCSB's Department ofStatistics and Applied Probability. I am a past President of the American Sociological Association.
4. I have taught oourses on employment discrimination at both the undergtaduate and graduate levels at UCSB, at the University ofCalifornia Washington Center in the District ofColumbia, and at Northweatem University. Among my furmer positions are Visiting Professor ofManagement at UCLA, Fellow at the Center fur Advanced Study in the Behavioral Sciences at Stanfurd, Visiting Distinguished John D. Macarthur Professor ofSociology at Northwestern Uni....ity, and Visiting Scholar at the American Bar FOW1dation. Since joining the fuculty ofthe University of Pennsylvanis I have taught graduate level courses on statistics and :researeh methods in the social sciences. In
addition to courses on discrimination. research methods, and statistics, [have taught
graduate and undergraduate coursea on organizational behavior,labor matkets, and social inequality. I also speoialize in research in each ofthese areas. Over the past twenty years, much afmy researoh has focused on issues ofwotkplaoe cllscrim1J.lation and on organizational policies and practices more generally. My research on these topics has been supported by fuur grants from the National Science Foundation, and it has been published in leading peer-reviewed social science research journals. My Curtioulum Vitae is attached as Exhibk B.

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 27 of 94

3

5. I have received national awards from three different professional assooiations

for my re,earch on gender. labor marireU;. social psychological aspects ofworlc. and

organizational personnel practices. I have served on numerous panels, advisory

com_. and profilssional worl<shops on topicg relating to workplace discrintination.

organizational personnel policies and practices. and research methodology. I have served

as an advisor, consultant. or reviewer fur the following organizations and agencies: the
u.s. B1Iteau ofthe CensllB. the U.S. Department ofJustice, the U.S. Department ofLabor.

the Equal Employment Oppomntty Commission. the National Science Foundation. the National Institute ofMental Health. the National Acadetuy ofScieru:es. the University of

Michigan's In,titute fur Sooial Research, Stanford University, the Writers' Guild of

America, West and the Bar Association ofSan pnmcisco. I have also served on the

editorial boards of leading social.cieru:. jonmaJs. and I regularly review manUBCripts for

scientilic joumals on topics relating 1<> organizationnl behavinr, employment

discrimination, and research methodology. I have been elected to several offices in the

American Sociological Association. I served for three years on the ASA Council, the organimtion's goveming body in addition to serving as the Association's President in

2003.

6. I have reviewed the 30(b)(6) deposition festituony of FedEx executives and

managers designated by the oompany to testifjr about personnel policies and pmetices as

well.s the exhibits that aeoompsny the deposition transcripts. The exhibits include

written policies, manuals, forms, reports, and correspondence pertaining to the company's

human resources system. rwas also supplied with a copy ofthe company's People

Practice,· Manual, dated October 2003, the ·People Best

manual. fur DGO and AGFS,

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 28 of 94
4
and documents, fonns, validation studies, and related memos, correspondence, and reports related to the company's policy and pmctice for conducting perfurmance reviews. A list ofdocuments that were supplied to me by plaintiffs' counse1. apart from those that were marked as deposition exhibits, appears in Exhibit C.
7. I also reviewed the deposition testimony aftlfact" witnesses who have testified about the company's policies and practices regarding compensation, promotion, perfurmance reviews, discipline; and equal employment opportunity, A complete list of depositions I have received is listed in Exlubit D. The list includes the deposition testimony given by two individuals in Jerome Rogers, et al )/, FedEx Express, et 81: Hesther McKnight, Humon Resource, Manager, and Darren Kato, Managing Director in the Coastal Region, DOD. It also includes the deposition testimony given by Michael Snyder, tbrmer Managing Director, fur the Southem Califumia District of000 and fanner Vice President fur Eastem United States, now retired, as well aa excetpts from the deposition testimony he gave in Pettaway-Vint v. Federal Express. I also reviewed the statistioal reports submitted in 2004 by Dr. Richard Drogin for plaintiffil and by Dr. Mary Baker fur FedEx as wen as the report submitted by Dr. Drogin this month.
8. I have also relied upon academic articles, chapters, and books written by soeial scientists and manageroent scholars, and they are ctted in the fuotnotes to this report. Social science research conducted across many decades hu generated considerable knowledge about what generates and sustains workpIace inequalities. That same research, either ditectly or by implication, points to the kinds ofworlqllace policies and practices that are lilrely to minimize hiss. The relevant researoh has applied multiple methodologies in a variety ofcontexts, including experiments in controlled laborntoxy settings;

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 29 of 94
5 ethnographies and case studies in "real world" organizations both large and small, public and privatc::. and in a range of industries; swveys done with representative samples of workers and employers; and historical studies based on archival materials from the United States and abroad. Thus, the scientific evidence about bias, discrimination. and the
structure and dynsmics ofrace in organizations that I rely upon ha.< subslnntial elttema1
validity and provides. sound basis for analyzing FedEx's policies and practices. My method is to look at distinctive features ofthe organi:l:ation's policies and practices and to evaluate them. against what social science researoh shows to be factors that create and sustain biss and those that minimize biss. Iu litigation contexts, this meth<ld ofSDaIysis is known as "social framework analysis." 1
SUMMARY OF FINDINGS 9. I bnve eono.hlded that the personnel system at FedE>< Is unifurm, centralized,
and in many ways highly forma1izad and standanlized, It also has diseretionlllY teatures, and due to inadequate monitoring and accountability, these features are VIllnerable to bias against A:liican American and IIlspanlc employees. Statistical analyses ofhow discretion is exercised in the FedEx personnel system demonstrate that it has an adverse impact on minority employe... consistent with.1argo body ofresearch by social scientists and management scholars on the sources ofwoIkplace racial bias. The basiB for these conclusions is explained below.
1Sec B. Borgida, C, Hunt. and A. Kim, ''Research in Sex Discrimination Utigation.n Journal of Law01Id Policy, Vol. 13, ZOOS,V. 613-u28;D. L. FaigmanandJ. Monahan, ''Psychological Evidonce at the 0lWI0 ofthe LaWs Scientifi.c AstJ:;."Annual Review Q/Psychol()gy, Vol. 56,2005, p. 631-659; J. Monabau
-----

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 30 of 94
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OVERVIEW OF TIlE FEDEXPERSONNEL SYSTEM 10. As in ttlany large, centralized organizations. the FedEx personnel system is in
many ways highly fonnalizcd and standardized.2 Centrally developed human resources policies, specified in the People :Manual, "best practices" manuals) and other documents apply uniformly throughout the Westem Region} Regional, District, and looaI managers are not authorized to modifY the companywide human resources policies.4 Human Resources policies are COQrdinated centrally by a corporate Human Resources Division that functions as a service organization to aD other divisions.S
II. Selection into pennanent hourly positions is governed by the FedEx-wide. oomputerized lob Change Application Tracking System (JCATS). Openings are posted
on JeAl'S, and the system is used both by employees to apply for openings and by hiring managers to make their selections.6 For first-level management jobs, the ASPIRE system is adminlsteJ.'ed throughout Fed& by the Human Resources Development Depamnent.7
12. A centJ:alized compensation function within Human Resources sets pay ranges for each pay grade for both salatied and hourly employees. The compCIIBation of
and 1.. Walker,Social Scianat in Law: Q1ses and Matma/s, Fourth Edition, FotIlldation Press, 1998, Chapter F~ nSocial Science Used to Provide Context."
2A, L. K.tI11ebetg,D. Knoke,. P. V. Marsdon. andJ. L Spaeth. OrganitatioltS inAmmca: Analyzing Their Structures and Human Resource Practices, sage Publications, 1996.
3M<Queen depo., p, 91-"2,
n. 4McQueen depo" p. 29";1, 75-93, 109-114; Davis depo,. p,43; rowell d<po" p. 57-63; Rhea
depo-.. P. 19-28; Speroft'dt:po., Vol. I, po 235-.6, Vol. p. 28~29.4.5-101; Fifer ®po., p. 11~t4. "McQueen depo" p. 40. 6WilIiamson dept.., p. 11~53; Speroffdepo., Vol. I. P, 53-61.'
-

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 31 of 94
7
nearly all hourly employees is governed by the uniform '\nerit hourly" pay plan.8 Uniform policies a1so govern the two components ofsalaried employees' pay: market Ieveldiftbrentials based on geographical differences in prevailing pay rates; and annual perfomtanoo-based merit increases,9 Uniform policies also govern the pay raises associated with promotions within hourly and salaried ranks and with promotions from
hourly to salaried ranks.! 0
13. A central Human Resource Analysis department withln Human Resources is responsible for developing the performance assessment instruments used for the annual evaluations ofpennanent hourly and ~ employees.! 1 Perfonnance reviews have a substantial impact on both promotion and compensation. For example, a rating ofat least 5 (on a 7-point scale) is required in ordertQ be eligtble to appJy for an open hourly PQsition in the JCAlS system. In addition. internal applicants fur promotion into bowiy jobs ate ranked into two "priority" categories, with fi.r5t-priority consideration going to
employees within the job classification group, and second.priority consideration going to those outside the job classification group. Within priority categories, applicants are ranked by "credit equivalency value" (CEV). which is computed a:! months of continuous service (discounted 50% for part-time employees) muhiplierl by the total ofthe last two
7Sperofrdepo., Vo1.1, p. 176~177; Brooks depo.,. P. 1t~26. 8Rhes dcpo., p, 10 l~ 102; PQwell dope" p. 21~56, 94-99, Tho lOO:Ieption is th¢P"}'oatJlgoryQf alroraft ltIIIintenanoe employees whose col:'llpeOliaUon is governed by the "step-progression" policy. Theyare not pI1rt ofthe certified class in this litigation. 9oamd.po. p. 18-19.34-36.43-46.49-50. l"oevis d.po.• p.19-42. 45-48; Powell depo.p. 44-46.

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 32 of 94
8
perfonnance ratings. CEV is considered the main factor governing selection within priority groups, so among equally experienced candidates, perforn'lance ratings will often be the detennining factor in selections.12 Similarly, an applicant for promotion into management under the ASPIRE policy is required to have a score ofat least 2.5 (on a4point scale) on his or her most recent performance rating. and perfullllance mting:; are one factor in the "matrix gridn rankings that are used to select which individuals are to be interviewed for a salaried po~dtion.13
14. Perfonnance re.rew. affect compen.ation both indirectly and directly. First, as noted above, performance ratings have a strong impact on the chances ofbeing considered and selected for a prontotion. and a move into a higher pay grade increases and employee'S compensation. 14 Second, annual merit increases are linked directly to perfunnanoe review scores f<>r both salaried and hourly employees.1 5
11Hayward dopa.• p. 56. 73-74. Merit hourly emplQ~ am .reviewed every six months for the first )W'theyare in arulW' job (H'.ayward &lpo•• p, 128).
l2wim,,",on depo.,p. S2; lI"",depo.. p. 60-66; Speroffdepo., Vol.!, ~ S3-61; lfayword depo.. p. S5-S6; 2003 People Matrual, Section4-S (BArnS PM1OO3PI7CJ..lSO). Mr. Sperotfteatified (VDl Lp. '3): nAt the closing ofthe process, the computer generates a:mathematical computation, and they come up with CEVs, :and people are ra.oked byCBVs. and the top person is the OM that is offered the position."
13Sperofi'depo., Vol. I, p, 193·195, 14Moreover.poJiey for promotions ofmerit hourly employees is to Ilward a 2% per pay grade
percentage mcroQ$(l over pay in the previous job (up to a 6% limit, subject to other restrictions; Powell
depo., p. 9~ 1(0). Accordingly, aJowpert'on:rumct:: rating in any given merit -cycle lowers: the base for percentage increases associated with future prornotiom;.
ISo,,;, depo., p. 39, 4647: Powell depo., p. 56, 75, 83, 94·95; Haywarddepo., p. 81-2.

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 33 of 94
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VULNERABILITY TO BIAS IN THE PERFORMANCE REVIEW PROCESS CAN RESULT IN SUBSTANTIAL BARRIERS TO CAREER ADVANCEMENT FOR AFRICAN AMERICAN AND IDSPANIC EMPLOYEES
15. Beoau•• the FedEx pcrsolUlel system creates .uch a strong link between perfonnance review ratings and both promotion an compensation, any racial bias in those ratings will have a significBnt impact on the career trl\iectories ofminority employees.
Social scientists describe these kinds of'reward systems as systems afcumulative advantage. In a cumulative advantage system. factors that result in even sman disparities between individuals early in their Caree!S have. cumulative impact and generate growing disparities over time.16 The materials I have reviewed indicate that discretionary asp_ ofthe perfonnance review system make it vulnelllbl. to bias, and that the company's
policies and practices for monitoring the implementation ofits policies regarding perfonnance review; promotion, and compensation are inadequate for minimizing racial bias.. Below, I first summarize researoh literature that explains why perfonnance review systems can be vulnerable to bias, and then I explain why FcdEx's policy and practice is inadequate for minimizing that vulnerability and is likely to lead to cumulative disadvantage fuced by Africm American and Hispanic employees over the course oftheir careers.
16rhe first cumulative adV$n~ :models were developed. to ~lain, differences in the career t~ectorie$ of scientists, including ge.nder disparities 1n &eicntists' CI:U'CeI'S. See. for example. P. D, Allison, J. S. Long. and T. K. Kratl2it\ "CUDl1llative Advantage and Inequality in Science,~ American S(JciO/OgiCdi Review, Vol. 47, 1982, p. 596-606; S, M. Clark, andM. Coroome. ~ Pet1IpI:Ctivcs in the Professional Sooilili:mtion oCWomenFaeulty: A Case ofAccumulative Dlsadwntage?" Journal a/Higher Edu~tion,
Vol. 51, 1986, p. 2().43;R, K. MertoIl, "The Matthew.Effect in Science. n: CumulatiV(l Advantage and the
Symbolimt oflntcllectuaJ Property,.. Isi3 Vol. 79, 1988, p. 606-623; and W. T, Bielby, "Sex Differencea in Cameo.: Is Science a Special Ca$C?" p. 171-187 in The Outer Circle: Womom ill the Scientifw Community, oditedbyH.Zuck:erman, J. It Cole. and}, T. Bruer, Norton. 1991. Forits application more broadly, see A.

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 34 of 94
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16. There is ample reason to closely scrutinize any performance review system fur potential racial bias. A large body ofsocial science research, including many studies conducted in organimtional settings, .how that African Americans tend to receive lower perlbnuance evaluations than do whiles. For example, .1985 article by Kraiger and Ford performed a meta-analy.is of84 studies with. total of over 20,000 rateos, including 64 field studies and 10 experimontal .tudies ofwhite raters IlIting a total of 17,159 African American and white mtees.17 Meta--analysis is a method for quantitatively aggregating results across studies in order to obtain amore precise estimate ofthe size and reliability
ofeffects than can be obtained from any single study.l8 In addition, a meta_ly'ls of studies conducted acro•• a variety of.ettings cuntnbutes to esfablisbing the external validity ofthe research. Kraiger and Ford's meta-anaIysis found that Afiican Am",",on average, received significantly lower evaluations than did whites. They also found evidence suggesting that wltit:e raters give significantly higher ratblgs to whites than to Afiican American.; and (2) that A!iican American ruters give significantly higherra!ings to Afiican Americans than do wbites.19
17. A subsequent meIa-anaIysis published by Martocchio and Whitener in Ruman Relations in 1992 replicates Ford et aL's finding regarding racial differences in
M 0'Rand, ""l1Ie Cumulative Stratification ofthe Ute Course." p. ]88~207 in Handbook ofAging and the Social Sciences (4th ed). edited by R. H. Binstock, L. K. George, et aI. Academio Press. 1996.
11K. K.taiger and 1. K. Ford. ltAMeta--Ana1}1Sis ofRaoo Effeets in perfortnanee Ratings,to Journal QjApplied Psychology, Vol. 70, 1985, p. S6..6S.
18I. E. Hunter and F. L Schmidt, MetMds o[Meta-{l.1fll/y.Jis.· Corf'«ttng Errorand Bias in Research F1ndings. Sage Publications, 1990,
19ne research on in-group favoritism in performance ratings 38 it applies to minorities is limited
because most datasets oontain relatively few instanees ofminority raters completing ratings ofboth minority
and white tatoos and rui.oority ra1@e6 being fated by ooth minority and white raters,

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 35 of 94
11 perfonnance measures.20 The Martocchio and Whitener meta-analysis fucused specifically on field studies ofperfonnance assessment conducted in private sector
fums.21 The ~ oftheir analysis often field studies also indicated that race effects were larger on sUbjective than on objective measures ofperformance.22 In an article published in 2003, Roth e/ 01. rep1icared KIaigor and Ford's reseorch on a Iru:ger sampl< of studies, and they fuund that ovenill, IllCial differences in perfonnance ..lings between
African Amari""", and whibos WO\'O compazahl< to those in the 1985 meta..",uysis. However. unlike earlier studies, they found that racial disparities on objective assessments could be as large or larger than those for subjective assessments.23 The Roth et 81. research is also the first large...:ale meta-analysis of disparities between whites and Hispanics, and they found that Hispanics tend to be rated lower than whites, although the disparities are generally not as large as those between Afiican Amaricans snd whites.
18. Numerous other studies conducted in organizational settings and published in leading refereed journals report similar findings or raoial disparities in performance ratings. For example, Jeffrey Greenhaus and colleagues studied the career experiences of a matched sample of373 African American and 455 white managers in three companies
20S. J. MartooohioandE. M. Whitener, "Fairness inPmoune1 Selection: AMefa..Analysisand Policy Implications,n Human Relatwns, Vol 45, 1992. p. 489~.506.
21Martoccltio and Whitener, op cit., p. 494. 22Ma.ttocchio and Whitener, op cit., Po 500. 23p. L. ROlb,. A LHuffcutt, and p, Babka. "Ethnic Group Differe.nces in Measures oflob
Perfutrnance: ANew Mlll:at-Analysis." Journal ofApplied P,ydm[ogy, Vol. 88, Po 694-706.

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in the oomnlunications, banldng, and electronics industry,24 The Afiican American and white managers included in their study were similar in age, organizational tenure,job function, and organizationrulevel.25 Their 1991 article in. the Academy ofManagement Journal reports that supervisors rate the performance and promotion potential ofAfrican American managers significantiy lower than whites, findings the autho", describe as
"remarkably consistent with the results ofKraiger aud Fon!'s (1985) meta analysis.,,26 Compared to white managers, African American managers scored lower on a seale of "COJporate fit,' expressing lrigher levels ofisolation and lower levels ofacceptance within the organization. African American managers reported lower career satisfaction and were more lilrely to repon that there careers had reached a plateau, compared to white managers with similar perfQnnance evaluations. A second article published in 1993 in OrganizationalBehavior and Human Decision Processes explored the attributions
supervisors made about the reasons for the successful performance ofAfrican American
and white managers. Their findings were consistent with Iaborntory studies on this topic: compared to white managers, successful perfonnance by Afiican American managers
24J.H. ~ S. P~and W. W. w()rmtcy, IlEffects ofR.ateonOtgatriutional Experiences. Job Perfonnanoe Evaluations, and Cweer Outcomes." Academy Q!MQ.1I4gement JQW1Ial, Vol. 33,1990, p. 64-86; J. H. <lreenhaus and s.1'aras1.u:auw1, 'Job Peri'ol1lUlllOO AttribuIio.. and Career Advancement Prospectll~ An Bxamination ofGender and Race Effecrs." OrganizadQnal Behavior and Human Decision PrOC81Sl!S, V(li. 55, 1991. P. 273-297.
250teenhaus et ai, op cft., p. 81; Greenhaus and PataSuraman, op Cit.• p. 28()'281. 260.Menhaus et ai. I)P eft., p, 79.

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was less likely to be attributed to ability or effort and more likely to be attnbuted to help from others.27
19. The findings ofGreenhaus e/ aL reglIlding race differences in assessment of promotion potential were replicated in a study by Jacqueline Landau of682 managerial and professional employees ofa Fortune SOO company who had been rated at least ltabove averagell in perfonnance.28 The study. published in 1995 in the Journal of Organizational Qehavior, examined the impact ofrace on supervisorsl assessments of promotion potential as recorded in company records from the annua1 performance app,.;.al pr"""ss.29 Landau found that African American managm and professionals were mted lower in promotion potential than whites of comparable age. education, organizational tenure, salary grade, job type, and satisfuction with career support30
zo. Other studies and reviews suggest that in many organizational settings,
perfonnance reviews by supcrvi50IS are not subject to racial bias. For example, in a 1994
review atticle in theAnn..1Review a/PsycholOgy, Landy, Sbankster, and Kohler state (p. 282-3) that "the field has been moving inexorably toward the :fina1 conclusion that welldevehped rating procedurw accompanied by training o/the T(lters will produce mtings that are minimally biased by demographic characteristics ofraters or ratees" (emphasis
27Greenhaus andParasuraman, up cit., p. 2S5~288. Forexperimental evidence ofrace bias in attributions ofthe causes ofsuC<:$$lUl performaooc,JU' K. 1.. YadOn, J. P. Town, and B. S. Wa11ston, "Blaeb and Women Must Try Harder: Stimulus Persons' Raceand Sex Attributions ofCausality," Pemmality and Sodal Psychology BulZe.tm, VoL S, 1982, p. 21~24.
28Jacque1ine Landau~ ''The Relationship otltace and Oenclerto Managers' Ratiugs ofPromotion Potentill1," .lnuma! (}fOrganizatUmaIBehavi()r~ Vol. 16. 1995,p. 391~400.
29tandau,op dt., p. 394.
3Or.andau, op ro., p, 395.-396.

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added)}! In a book published that same year, Latham and Wexley (p. 152) assert that
Uwhen the appraiser uses behaviorally based appraisal scales; ratee characteristics, such
as age, race, and sex, have a negligible effect on the resulting performance appraisal"
(emphasis added).32 The oonelusions of Landy et al. and ofLatham and Wexley are not
inconsistent with the research cited above. It is indeed the case that appropriately
designad perfonnanee appraisal systems, carefully impiementad and monitored, can be
free ofbias. 21. A large body ofsocial science research shows that personnel decisions such
as decisions about promotion selections and performance assessment are vulnerable to
stereotyping and bias when they are based on the arbitr.uy or discretionary use of
subjective criteria. Moreover, assessments based on objective factors can be influenced
by stereotypes when decision-maker.o have substantial discretion in deciding how to weigh those mcton!. A stereotype is a set ofbeliefs that links personal traits ofindividuals
to specific social groups.33 The association ofsuch traits as "assertive" and ''rational''
3JF. J. Landy, 1.1. Shankster, and S. S. Kohler, "Personnc1 Selection andPl.aoernent,II Annual ReviewojPsyclwlogy, VoL 45, 1994.p.261~296.
~2a. p, Latham andK. N. WeKl.ey,lnCMlJing Productivity Through PerfQrman~AppraisIJJ, AddisonWesley,1994.
33&. T. Fiske. A 1. C. Cuddy, P. Glick, and J, Xu. ~A Model of (Often Mi1ood) Stereotype Content: Competence and Wannth Ri:spe(:livc1Yl"oUow:&om Perceived Status and CQmpetition." J()lirn~ ()f Persollalityand 8aciul Psychology, Vol. 82. 2002, p. 87S-902; N. E, Evans.. and R. B. Tyler. ''Racial Stereot}pes: The Contents ofTheir Cogultive Representations,lt JQW71Ql of&pei'ltnental SoCial Psychology, Vol. 22, 1986, P. 22-37; p, O. Devine and A. J. Elliot, MAre Racial Stereotypca RcalJyFading? The Princeton Trilogy Revisited,II Pemmality alld Social PsydwlQgy bulletin, "Vol. 21, 1995, p. 11391150; J. F. Dovidio,I C. BringJutnt. B. T. Johnson, and S. 1... Gaertner, "Stereotyping, ~udice, and Discrimination: Another Look,~ p. 276-319 inSte/'eQtypf!.J und Stel'8Ot)iplng, edited byC. N. MacRae,. C. Stangor, andM Hcwstone, OuilfordPress, 1996; D. F. Maclcie, D. L Hamilton. J. Susskind, andF. Roselli.
''Social Psychological Foundations ofSteTeotype Formation." .p. 41-78 in Stereol'yJUt!l and Stereotyping, edited byC. N. MacRae. C. Stangor, and M. Hewstone. GuitfordPtess, 1996; K. H. KarIm, "The Historical.
Resilience ofPrimaty Stereotypes: Core Jmage$ of the Muslim Other." p. 153w132 in The Language and Politics o/Exclutiofl: Ot1ws in Di.tcoIJfflJ, edited by S, H. Riggins. Sage Publioations, 1997.

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with the categoty male, I'nurturing" and "emotional' with the ca:tegory female, 'Violent!!
and "hostile" with the category African Amerioan,and "gang-banger" and "macho" with
Latino, are examples of stereotypes. When stereotypes such as these are allowed to
influence soeialjudgments1 decisions about members ofminority groups 'Will be based 011
general beliefS about the behaviors, traits, and qualities associated with their gender or
racelethnicity instead ofthe actual traits ofthe individuals beingjudged.34
22. Research studies show that the effects of stereotypes. hI-group favoritism and
out-group bias OD evaluative judgments such as those Involved in biring,job assigmnen4 promotion, assessments ofsk:ilb: and qualifications, and compensation can be mini:m:ized
when decision-makeIs know that they will be held accountable fur the criteria used to
make decisions, for the accuraoy ofthe information upon which the decisions are based,
and fur the consequences their actions have for equaJ employment opportunity. For
example, research studies show that the effects ofsteJ:eotypes and outgroup bias on
34c. O. Word,. M. P. Zanna. andJ. Cooper, MThe Nonverbel Mediation ofSelf.PulftlliDg
Prophecie$ in.1nterracial Interaction," JQunt4l ofExpenmental Social Psychology, Vol, 10, 1974, P. 109-
120; Devine and Elliot" QP cit.; p, o. Devine. ''Storeotypes and Prejudice: Their Automatic and ControUed
Components," JOlltTIal ofPer.;oMlity and Social P$ychoJogy, VoL 56, 1989: 1. F. Dovidio and S.l.
Gaertner, wStereot}ll'e8 and Ewluative Intergroup Bias," P. 167~ 193 in4O"ect, Cogn/.lion. and Stereotyping, edited byD. M Mackie and D. L. Hamilton. A<:ademic Press. 1993. For articles and chapters providing
reviews ofrelevant research, ~ American Psychological Association, ''In the: Supreme Court of~ United Stttes: Price WllIerbowe v. Anna Hopkins: Ami<mCuriae B.rieffor The American Ps)dlological Assoclation,"AmerlcaI'l Psychologist. Vol. 46. 1991,p. 1061-1070. Also seeD. M. Messick and O. Mackie. "Intergroup Relations." Annual Review o/PsycAoiogy, Vat 40, 1989, p. 49-50; V. P. Nieva and S.
A. Gutek. "Sex Bff'eets on Evaluatiou," Acudem)' ()/Manapment Review. Vol. 5, 1980, P. 267-275
(espeeiallypages 270-274); D. N. BersotT: "In the Supreme Court oftbe United States: Clan. Walson v. Fort Wodh Btnk & Trust, Amicus CUriae Brieffur the American PS}'ChologWal As:sociation" (reprinted in Amifl"iMn Psyehologis4 Vol. 43, 1988, p. 1019-1028); S. T. Fiske and S. E. Ta:ylor, SocioJ C()gnitioll. Addison-Wesley, 1984 (especially CImpWr 9. "SociallDference',): L. H. Krieger, ''The Contents ofour categories; A Cognitive Bias Approach to Discrimination and Equal Employment Opp.:ntunity." Stan/ord Law.Review, Vol. 47. 1995,p. 1161.24S;B,,P. ResJdn. The Realities ojAjJirmativtAction in Employment, American Sociological A$sociation. 1998; M. B. Brewer andR. J. Brown, "In:tergroup Relations," P. 554594lnHtmdbook o/Soda' Psyclwlogy, Yolo 2 (4th ell), edited byD. T. Gilbert, S. T. Fi.s1m, and G. Lindzey, Oxford, 1998; W. T. Bielby, "Min.imiUng Workplace Geru:Ier and Racial Bias':' Contemporary SockJ/OHY, Vol. 29, 2000, P. 12(J..129.

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selection decisions can. be minimized when decision-makers know that they will be held
accountable for the criteria -used to make decisions. for the accuracy ofthe infonnation
upon which the decisions are based, and for the consequences their actions haw for equal
opportunity.35
23. Conversely, social science research demonstrates that substantial discretion in
assessing and weighing evaluative criteria in'Vites bias. In a highly discretionary system
with limited monitoring. even objective fiwtors can be evaluated in a way that leads
towards favoritism to the majority group and discrimination against minorities. For
example, social psychologists Samuel Gaertner and John Dovidio haVe conducted
researeh sbowing that when white evaluators have discretion in how to weigh evaluative
criteria, they tend to do so selectively, in a way that biases outcomes in. favor ofwhite
ratees. In one part oftheir study, participants were told they were assisting a nnivemRy in
making admission decisions) and they were given infonnation on factors such as test
3Ss. T. Fiske, M. Un,. and S. L. Neuberg. "The Continuum Model: Ten Years Later,1I p. 231-54 in DualProces3 Theories ill S()Ctai Psychology, edited by S. Chaiken and Y. Twpe, Guilfurd Press. J999; T. E. Nelson, M..Acker and M. Manis, "Impmssible Stereot}pes,N Jo'Urtla/ofExperlnumtal Social P$)IC/wllJgy, Vol. 32,l996,p. 13~38jJ. L. EbcrhardtandS. T. Piske, "MotivatinglndiYidnalsto Change: What 1$ a Target to Do?" p. 369-41 S in $tt:r.wtypes and Stereotyping, edited by C. N. MacRae,. C. Stan$or. and M Hewstone. Guilford PresS) 1996; A. M. Konrad and F, Linnehan. ''Fonnalized HRM Struotum: Coordinating Equal Employment Opportunity or Concealing Organizational Pnlctices?R Academy of Manage11Mn.tJournal, Vol. 38. 1995. p, 1frl-829;T, F.Pettigrew andJ.Martin, "Shapingtite Organizational Conb:Jxt for Black Americanlnclusioll,· Journal o/Social Issues, Vol. 43, 1987, p. 41 ~78; G. R,. Salancik and 1. Pfeffer. 'tlnoertainty. Secrecy, and the Choice of Similar ~n Social Psychology, Vol. 41. 1978,p. 246~5S;C. T. Schreiber.K. F. Price. and A. Morrison. ~World'orce DivemtyandtheGlass Ceiling: Practices. Barriers. Possibilities." Human Resource Planning, Vol. 16, 1993. p, 51-69; P. B. TetJoc::k,. "J\Q:ouDtability; The Negiooted SoQal Context ofJudg:tneru and Chob,N P. 297-33Z in Research in Organizational BehavirJr, Vol. 1, edited by 1.. L. Cummings and B. M. Staw, lai Pre$&, 1985; P. E. TetltWk and I. LKim. "AcCQwrtability and Judgment PWCI:Issf!$ i.n a Pen;onaJityPrediction Task.n Journal of P(!rSofWlityandSacialPsychology. Vol. 52, 1987,p. 70()"709; p, E. Tet1ocik, ''The Impact of Accountabilityon Judgment and Choke: Toward a SociaJ. Contittgem:y Model." Atiwtnces in Experimental Social Psyc/loiOfJ)'. Vol. 25, 1992. p. 331 ~376. To see how bun:um resource professionals apply those principles in the desi.gn ofpersonnd systems, see R. D, Gatewood and H. S. Field. Hliman Rttoun:e
Selection,Fifth Edition. DIydenPre$$,. 2001; and H. G. Henem:m,. m, R. L lJeneman, and T. A ludge
Stqffbtg Organizations. Third Edition. Mendota House and Richard D. Irwin, 1999.

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score, and high soboo) grades for (hyp<>thetic:\l) African American and white applicant•. When applicants were strong on one dimension and weak on the other, raters tended to give the .trooger dimension a greater weight fur white applicants and the weaker one a greater weight fbr African American applicants.36 In other worda, they exeroised their disoretion in a way that ensured that whites would rank on top. The authOIS summarize their findings as follows:
White college participants (whom, relative to the general population may be regarded as generally moderate to low prejudioed .. .), give White candidates the "beoefit ofthe doubt," a benefit they do not extend to Blacks.37 24. In a study ofgender bias with a ,imilar experimental design, Eric Uhhnann and Geo!liey Cohen fOuod that when given discretion On defining and weighing qualifications, evaluators redefined criteria of success 80 that men were assigned to stereotypically malejobs and fi>males were assigned to stereotypieally female jobs.38 They eoneinded (p. 474) that "even without ambiguity in applicants' =dentiala, the crlteria used to assess merit can be defined flexibly in a manner congenial to the idiosyncratic strengths of applicants who belong to desired groups.II By acting in this
360.IiQds!>n. G.• J. F. Dovidio and S. L. Gaertner, "Processes in Racial Di$¢rimilJlllion: Dif£crential Weighting ofConfliotingInformation,~ Personality ami Sr:JCial PsychologyBulletin, Vol. 28. 2002, p.460471.
37s. L. Gaertner, 1. F. Dovidio, J. Nier. O. Hodson. and M. A. HOulette, "Aversive Racism: Bias Without Intention,U p. 377~393 in Handbook on Employment Discrimination Research: Rights and RMlme.s, edited byR. L. Nelson and L. B. Neilson. Kluwar Academic Press. 2003 (intettel citation omitted. quotation on p, ~34): O. Hodson, I. F. Dovidio, and$, L. Gaertner, "Processes in Racial Discrimination: Differential weighting ofConflicting IlifQrnlation," P~nality and Social P~QlQgy Bulletin, Vol. 28, 2002, p. 460-471.
3SE. 1... Uhlmann and G, L Cohen. "Constmot:od Criterip.; Redefining Merit to Justify
Discrimination," Psychological ScitlfllC4 Vol. hi, 2005, p. 474-480.

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waY. decision-makers canjustify biased decisions by appealing to seemingly Itobjectiveu criteria. In their words (p. 479):
Bias in the construction "fjob criteria allows evaluators both to discrimirurte and to maintain a p~onal illusion of objectivity. Although gender stereotypes enCOIll1lge discrimination, egalitarian nOlllls compel making hiring decisions on the basis of applicants? merit 1."ather than their group membership. These conllkting pressures can be reconciled by defining and redefining merit in. manner that jnstifies dlscrimination.39 Although tIleirs is a study ofgender bias, Uhlmann and Cohen conclude their study by linlcing ft to the reseaooh ofGIIOrtner and Dovidio described .bove, noting (p. 479) that it "dovetails with work on aversive racism in suggesting that prejudice often expresses itself in rationalizable ways..," In sum, this body ofresearoh demonstrates that discretion in the definition and weighing of evaluative eriteria, even with regard to ostensibly objective criteria, contributes to bias, and it often does so in a WB:y that allows decision~makers to jusillY to themselves and to otllers that their actioua are fair and nondiscriminatory. 25. Formal written policies alone) such as specific guidance on assessing and weighing evaluative criteria, are not sufficient to minimize bias. Passive organizational approaches to the prevention ofdiscrimination that take action only after an incident is brought to the attention ofmanagement are often. ineffective. A written antidiscrimination policy that is simply reactive, respo.uding to complaints, and lac1ing effective accountability, is often a symbolic exercise in "going through the motions," with 1ittle substantive impact on creating o!J!'lllizatio.a1 policy and practice that is free ofbias.40
39AJso seeM 1. Norton, J. A. Vandello, andJ.M Darley, MCasuistryandSocial Category Bias." J(fJ4mal ojPerSl>1U1lit)! and Social P3)'Cltok1gy, Vol. 87,2004, P. 817..s31,
401... R Edelman, "Legal Ambiguity and Symbolic Structures: Organizational Mediation ofCivil Rights; Law," American Joumal oISodo{(8)'. Vol, 91. 1992, p, 1531~ 1516, 1.. B, Bde1rn.sn, S. Patterson, E,

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Sociologist and legal scholar Lauren Edelman, the 1esding expert on this topic,
summarizes the findings offifteen years ofresearch On organizational responses to EEO
as follows:
Because it is generally the form rather than the substance ofcompliance that attains an institutionalized status, there is variation in how enthusiastically management,. as well as the personnel who staff compliance structures, embraces legal ideals. In some cases, structures have both symbolic and substantive Significance - their fonn signals attention to legal ideals and they operate to enhance the workplace .tatus and conditions oflegally protected employee•. In other cases, however, the structures fit the law in form but Jack substantive effect. Organizations may .ttategically seek to create compliance structures merely as symbolic gestures by "dccoupling" those structures from core organizational activities. Organizat:.ions may, for example, create affirmative action officer positions but give the officer little or no autonomy or authority or create grievance procedures that are han! to access and known to provide little relief.41
26. The most effeetl\'e approaches rely on proactive polioies and practices,
including recurring and mandatory training ofmanagers and supetvisonl, and systematic
and consistent monitoring of outcomes ofpetsonnel decisions.42
Cbamblias, and H. S. Erlanger, "Legal.A.JOOiguity and the Polities ofComplianco: Affimlati:ve Action Officers' Dilemma/ Law ohd Polic:y, vol. 13, 1991. p. 73-97; L B. J?deIm'n H. S. Erlanger, andJ.l.ande, "Empl(l)WS' Handling ofDiscrimination C<>mpIaints: The Transformation ofRights in the Workplace." Law &Soc.ietyRmew. Vol. 27.1993, p. 497--534;L B. Ede~ LaurenB. andS. Petterson. "Symbolsand Substance in Organizational Response to Civil Rights Law,N in Research in. SOCial Stratification and Mobilily, 1999; J. S. Leonard, 1'Women andAffirmative Action," JOUl1lal of.Economic PerspectiwJs. Vo], 3, 1989. p. 61-75. Also sec I. S. Leonard, Ute ofEn/orcenwnt Tec1miques in Eliminatihg Glass Cdltng BarriU$, ~port prepared furthe U. S. Department ofLabor. Glass Ceiling Commis$ion, April 1994.
41L. B. Edelman, "Law at Work: TheEndogenousConstructionofCivilRigbt$/p.337~352 in Harldbook on Empwyment Discrimination Rctrearolt: Rights mtd RMlititts. edited by R. L. Nelson and L. B. Neilsoll, Klu'IWl kademie Pt'(l$$, 2005 (Internal citation omitted, quotation on P. 345-346). Also see K. D. K.rawi~ ''Cosmetic CompJiance and tOO Failure ofNcgotiatcd Governanoe," Washington C/niverdty Law Quarterly, Vol. 81, p. 487·$44. On the gerumll issue ofdeooupling oforgani2ational :lhndions. see D. J. Orton and K. B. Weick, ~LooselyConpled $)'stems: A Reconceptualizatiou.." Academy oj'Matlagemsn.t Review, Vol. 15. p. 203--223
42por a review ofmonitoring and 3C(lQuntabiJityas strategies :for ensuring equal employment opportunity, see Bielby, 2000, op cit.; also see S. Sturm. "Second Generation Employment Discrimination: A Structural Approac:b," Cobunhia Law Review, Vol. 101,2001, p. 4S8-568.iB. F. Reskln, "Including
Mechanisms in Our Model$ ofAscriptive Inequality,"American SociologictJl Revtew, Vol. 68, 2003, p. 121 (see, especialIY.p.12~14); and A Kalev.P. Dobbin, andE. Kelly, "Best Practices otBestOuesse$?
_ - - - - - - _ ...

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27. Effective accountability also requires explicit evaluation ofmanagers and supervisors on their contributions to an organization's equal opportunity goals. Nearly all medium- to large~S(:ale organizations have a written antidiscrimination policy. and many bave a writllm policy stating that implementing the objectives ofthe Affimlative Aetion Plan is tbe responsibility ofevery employee. However, such policies are merely symbolic unless they also delineate explicit duties and responsibilities relating to equal opportunity in each managCl', or supervisors job description, which can then be related to specific evaluative dimensions in the perfonnance reviews ofthose employees. In short, in the area ofEEO as well as other aspects ofhuman resources~ "what gets measured gets done.t43
DEFICIENCIES IN THE FEDEXPERSONNEL SYSTEM FORMINIMIZlNG BIAS
28. A number ofFedEx's policies are based on sound principles ofhuman resource management. For exampl~ it is the company's stated claim that selection criteria ate to be limited tojob-relevant litctors. based on systematic job analyses with input from subject matter experts,44 It is company policy that any manager who conducts
Diversity Management and the Reduotion ofInoquaJity," Paper Presentod. at the M.oetiva: on Social Scientific
pmpectives on Employment Discrimination in Organizations,N Center for Advanced Study in the Behavioral
Sci~ Stanford, CA. Noventber 2005. For an example ofpolicies and pra.cticesused by human resources
professionals for establishing effective monitoring and accountability, see D. Kennedy, Accountability: EstabltJhing Shared Ownership, Benett-Kochler Communications, 2000.
43M. Giovannini, "What Gets Measured Gets Done: Achieving Re!ltllt$ Through Divers:ityand Inclusion,ftJQUI'lUftjQr Q,uality and PartidpatiQ1'/. Vot. 27.2004,p. 2l~27; s. Ketr. ''OntbeFollyof Rewarding1\, While Hoping f<"lr B." A.cademyojManagementJourtlal, Vol. 18,1915, p. 76SM83;Bielby, 2000. op cit.
44see,e.g. Haterdepo., Vol. n.p.169·170.291~293;Brooks depo•• p. 152-153.

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interviews as part ofthe ASPIRE selection processes for promotion into management is
to be trained in behavioral interview techniques (interviews are used in only a limited
number ofpromotions into hourly positions),45 In addition, employee perceptions of managerial perfoImWlCe and workplace climate are assessed via the Survey Feedback Action (SFA) pmgratt4 and that infonnation is used in making selection d~ns about promotions.46 The MGRAAP system provides a mechanism fur underotilization
infonnation from the CODl.panics Affirmative Action Plans to be communicated to managen who are filJingjob openingli.47
29. However, the syatem bas signillcant deflciencieo as well Perhaps the most pervasive is the ahnost complete absence afany monitQring ofracial disparities or dispamte impact in personnel outcomes, apart from the utilization analyses provided by an outside vendor that supplies analyses for the Affinnative Action Plans. Most importantly. there is no monitoring of:r.acial dispari.t:ies and adverse impact of perfonnance reviews,48 despite the large body ofscientific and management studies demonstrating that this is an area ofhuman resources systems that can be especially vulnernble to bias, and despite the fuct that the data fur conducting such an analysis is readily available to the human resources professionals responsible fur the effectiveness of perfonnance assessment. Nor have those professionals at FedEx undertaken efforts to
4SSperoffdopo., Vol. Lp.20).209,233-234;Bucluonan depo., p. 102.106,112.115. 46Spen;!ffdepo.• Vol.l,p. 193-194; Haywarddepo.,p. 60-61. 47Colli",dopo., P. 4142;Bu-.ndepo., p. 97-98.
48sayward depo.• P. 50-51; also.see Brooks depo., p. 25.

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analyze how performance reviews affect other employment decisions such as promotion and compe:nsation.49
30. While the company's human resources professionals devote considerable effort to assessing the "content validity!! ofselection criteria and performance dimensions. those exercises only address the relationship between job knowledge, skills, and aptitudes and the policies as they exist on paper. Very little effort is devoted to monitoring how perfoIDlance assessment and selection tools are actually applied in practice. For example. Dr. Hayward testified that management has access to and monitors reports on whether perfbnnaru:e reviews are being conducwd aooording10 the planned sohedule ofdeadlines, but she was aware ofno requirement that management monitor how reviews are conducted in practice. She testified that higher level managers have access to all complered reviews which they can use 'to audit atony point they ... fit," but as the person responsible fur the effectiveness of performance reviews, she had never seen one done.50
31. While guidelines fortatings ofperfonnance dimensions appear on perfonnance review fonus. Dr. Haywanl was not aware afany (;ompany policy or prsctice to ensure thet they me in filet applied oonsistently. She testified: (1) that there is no specific policy outlining how 10 make • rating; (2) that judgments about the weights to be assigned to individual components ofa perfurmance dimetlS-ion in order to obtain an
49flaywanldepo., p. 9243. SOJiaywatd depa., p. 144~l46, Mr. Petty, a Senior Manager at the OakJand hub. testified that he does ''random audits" afhow his managers oondnet performance reviews (Pe:rry depo .. p, 11 O~111). Ro'\\'eYel, Mr. Perry, who testified that he ptrsonalJyrefers to no written documents when he cotdJCIs a

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overall mling for that dimension are left to the discretion ofindividual managen;; and (3) that the company took no efforts to monitor whether managers: were taking into consideration factol'S other than those specified in the written guideJines.51
32. Prior to the implementation ofthe online perfonnnncereview process sometime between 2000 and 2002j managers were delegated discretion for detennining weights assigned to each dimension of an overall performance rating fur hourly employees in some ifnot alljob classifications.52 Similarly, in perfonnance ratings for manageda1 employees, weighing of subcomponents ofdimensions such as '~udgment and decision making' is left to the discretion ofthe individual doing the assessment.53
33. Dr. Hayward, the proressional responsible for the effectiveness of perfunnance reviews, was aware of no company-mandated training on how to apply the written guidelines, although she bad "anecdotal evidence" that ,orne training was done on-the-job by peers.54 Other testimony indicates that managers are exposed to some 1nlining about performance reviews, but that this occurs mainly when they first become managers and spoIadically after that, and that it primarily involves an overview ofhow to fill out fonus, and disseminating infol1ilation about various resources related to conducting perfol1l1llllCe reviews. 55 In contrast, management ocholars explain; (1) that
perfol'llU\llCe review, also testified that he was unaware ofms JlllUI).get (Managing Director Robin Van GaIdet) aumti"ll""Y_ perfo""",," reviews (porrydepo" p. III, 111·172).
SlHaywani depo .• p. 181·183,203 -207. S2H1,ywani d'P"., P. 154·161; Mill" depo., p. 194-197.
S3neberrydepo.,.p. 91--9'2; Perrydepo.. p. 127~131, 148~143.
S4H")'WII'ddopo.,p.180.18I 5Sauchanandepo.,p.157.164; Pertydepo.,p. 142.143, 147·149, 156,160·170, 175-176.

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effective training on conducting fair and effective perfunnance reviews requires handS-<tD rating exercises with instructor feedback, rather than overviews lasting no more than a few hours; (2) that training needs to be repeated at regular intervals, not just when a new system is introduced; and (3) that trainmg needs to be tied to a policy ofholding raters accountable fur how they perform the task. with real consequences for madequate perfonnance,56
34. FedEx policy and practice regardjng promotion, compensation) and discipline is similar to that regarding perfurmance reviews: no analysis of racial disparities or dispatSte impact;'and little monitoring ofhow policy is implemented. Danny Rhea, Managing DireclOr fur Global Compensation, testified that the company has not done any
studies ofcompensation disParities by race.57 Similarly, Managing Director Roben
Speroff, deaignated by the company to testify about promotion policy and practice, was not aware afany studies done ofpromotion disparities by race,58 Dr. David Brooks. who participated in the development and implementation ofthe ASPIRE pmc.., for promotion into managemen~ testified that there have been no disparate impact studies of that process or ofany ofits components.59 Shannon Brown., the Vice President for Human Resource Services and the company's top diversity oftleer. testified that during
the past four years, he saw only one written document addressing the representation of
S~ A. Hawwteil\ ''Training Raters to Incn:!ase the .Aceuracy ofAppraisals and the Usefulne.u of
F~M pp. 404-442 in Perjannan.ce Appraisal: $tate (lftheArt in Practice, edited by]. W. Sithcr. JQiSe1'Bass. 1998.
S7Rhea depo., p. 69M70; WOO see Hayward depo., ~ 83. 58Speroffdepo.. Vol. I. p. 49.

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African Americans in managemen~ and that was a one-page document prepared in early 2001.
35. In. his role as Vice President ofHuman Resource Services and ChiefDiversity Office!. Mr. Brown has never asked anyone to conduct an anaJysis ofthe representation ofAfiican Americans or Hispanics in management at FedEx.60 Mr. Brown testified that he had never spoken to his supetVisor, the Executive Vice President ofHuman Resources, about minority representation in management at Fed Ex. nor could he recall cvet speaking the company's top executives (CEOs ofFedEx Expre!ls and FedEx Corporation) about
that topic.61 In his role us ChiefDiversity Officer, Mr. Brown had never ,et any diversity goals for the company, and h. had never directed anyone to prepare an analysis ofthe
effectiveness Qfthe company's diversity programs.62 Similarly~ Senior Human Resources Representative Anita Collins. whO' assists in the preparation ofthe company's affirmative action p~ testified that she has never been asked to conduct and has neverprcpared
S9Broob depo" p. 107-108. 129·131. Nor has therebccnanylltUdyoftheraciaJ COmpositiODOf the interviewpanels that make 1le1eotion decisions (Brooks depo•• p. 71~72).
6OBrowndqlo., p. 50~57. Mr. Brown also testified(p, 27, SO~S4) that the company's Officer Diversity Council, wbiob is charged with taking "proactive efforts" in the flnIa ofdiversity, conduota no studies our analyses ofminority representation in management, apart from one requested by the FedEx legal department in early 200·'" Mr. Brown could provide no reason fur his failure to a.sk for anywritten analysis ofthis Issue (Brown depo., p. 63-ti4). Ms. Anita Collins. the Senior Human Resouttes Representative responsible fur Affirmative ActionPlans (AAPs) in the W(:;Stern and. Southwestern regions. testified that apart from the studies: down by the outside wndor for the Mrs, then: are no annual analy&e6 ofminority """,_ion in auyj.b category at FoIEx (Collins depo., p. 32·37. 69-70).
61Brown depo.,p.l0, S7~S9. 62Brovvn depo., p. 59, 70. Nor bad Mr. Brown ever seen a written a.n.al)'sis ofthe effectiveness of
the eontpany's diversityprogram.s (Brown depo., p. 70-71). Mr. Brown testified (p. 60-61) that the only written description ofgoals rolatcd to diversityia aone paragraph misswnstatenumt on divernity. Mr.
Brown 1l1so testified (p. 16) that he had 00 job duties directly relating to affirmative action.

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26
any written analysis ofthe effectiveness ofthe company's affirmative action plans.63 Catherine Banks, the company's Manager of Human Resources Compliance, gave similar testimony.64
36. According to Mr. Brown, there is no written process for monitoring diversity at FedEx.65 CQmpliance Manager Banks, the individual designated by the company to testify about EEO policies, stated that she was unaware of any proactive system in place at FedEx to easurc that the company was in compliance with its equal opportunity policy,66 And while managers are provided with infonnation on underutilimtion in making selection docision, (aee above at paragraph 28), depnsition testimony ofmanageIS
who make those decisions is inconsistent regarding whether they actually do so in any
coIl3istent and significant manner.67 37. The company's Equal Employment Opportonity Policy States: The FedEx Express Equal Employment Opportunity and Affirmative Action Programs (EEO/AAP) work in conjunction with each other to ensure compliance with government regulations with regard to both.~
63CoIllils depo., • .43-45. <\4ganks <lop••, p. 32.J3.
65Brown depo", p. 71. Although the company has "BrJ$t Practices" manuals that are distlibuted throughout the company, tbm is no best practioes doownent on the topic ofdiversity (Brown depo., p. 71-
72). 66Sanks depo., p. 35.
67s... fur""",.I.. Six depo., •. 151-153;P~depo.,p. llO-120;W. Delgado depo,p. ISS; Suazo depo.• p. 155·163.
61lzoo3 Poop'" Manu~, s.ction 4-55, p. 221 (BA"lIlS PM1003P221).

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When Human Resources Compliance Mrumger Banks, testifying on behalfofthe company about its EEO policies, was asked how these two programs work in conjunction with each other to ensure compliance, Ms. Banks enswered that she did not know.69
38. Althoush promotions into hourly positions are nonnally supposed to be based on priority group ,tatus and CEV scores, company policy allows for departures from selections based on CEV rankings.70 Statistics compiled by Dr. Drogin indicate that promotion decisions that depart from rankings based on priority group and CEV scores are CODUnon, as many as 20,000 instances from January 1991 through January 2006 (Dragin 2006 Expert Report, pamgraphs 50 and 51). In addition, a manager can withhold approval for an employee who has applied to move to a pOsition in a different job group if that employee has any "podiumance deficiencies that arc related to the desired position.H71 However, there are few gujdelines fur managers tegarding what constitutes a
job--related performance defieiency. and managers are not required to make a written record ofwhether they are withholding approval because ofa performance deficiency or for some other reason. 72
39. Mr. Sperofftest:Uicd that be was aware ofno proactive monitoring of managers' compliance with promotion policies. According to him. there is nO direct assessment ofmanagers' compliance with promotion polic:ies as part oftheir regular
69s.nksdepo.,p.18_19. 70 Speroffdepo., Vol. I, p. 7g..S0;Perrydepo.• p. 96-97; Hesser depo., p. 60-62.122~123; Williamson &:po., p. S4.S5j Buchanan depo •• P. 131 RI32. 712003 PeopleManuai, Section 4-5. (t 181, Table 1 and Table 2 (BATESPMI003P181). 7~ffdepo., Vol.t. p. 70-71, IOI-I02;V""""""'s depo, p. 5)./55.

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perfunnance reviews, and the OlttY way departure!! from policy would be detected is ifa promotion candidate filed a complaint under the comp8J1y's Guaranteed Fair Treatment (GF1) dispute resolution process. 73 Business Systems Analyst Vickie Williamson testified that the JCATsystem is not structured to notifY Human Resources or the selected oandidate's current manager about selections for hourly promotions that depart
flom the CEV ranking>. She also testified that there is no tracking system ofany sort in place to monitor or track the extent to which hiring managers are selecting candidates
with the highest CEV.14 Senior Human Resources RePresentl!t!ve Anita Collins testified that apart from impact ratio analyses required by government agencies, the company docs no written analyses ofracial disparities in promotion rates.15
40. Mr. Speroff8'''< similaro:stbnony regaMing monitoring ofthe company's
discipline policies. According to him, the OFT prooess is the only mechanism fur
monitoring whether managers arc complying with policy in their handling ofdisciplinaty
suspensions or suspensions with pay pending investigations.76
73Spemffdopo.• Vot. I. p.39-40. 47-49, 71-72. 101.102, 12()'121, 134-137; Spcroff&po., Vol.
D,p.46-47. Also see Hesser depo., P. 102-104. AI:cordingt(l Shannon Brown,. theGFrproceJ$ i$de$igned for oomplaints regarding selection. perfotmanee. and disclpJim and is not designed for resolving complaints about race discrimination. A separate internal EEO complaint process is used for complaints about racial cJjscrimination (Brown depo., p. 101.104; Banks depo., p, 37-38).
74WllHamsondepo.• p.I22.124. 75colli.. dopo.,p.3841.
76speroffdepo,. Vol II. p. 164~16S. 181~182, In COlltrait, thepolicyregardingterminations is
more proactive. It is company potier that three notifications ofa disciplinarydeficiency (warning 1etteror perfOl1ll.8.IlOe reminder) "normally results in tenniuafion." However, the registtati.on ofthe 1hird deficiency automatically triggers a fUll review ofthe employee's entire wotkhistoryat FedBx. and written policy speciUe8 that "mana.gement is responsible for thoroughly reviewing an employee's disciplinary record with the COtnpnurand exercising jUdgment in det1lrmining appropriate action- (policy 2--5. P. S4 ofthe October.
n. 2003 }>eople Manual; Speroffdepo.> Vol. II, p. 194~197). That is, with three lWtiw disciplinary actiGJl!l,
HumanResQurees is requited to approw a ~r'$ decision not to terIninare (8pcJ:off depo" VoL p. 197~198). Mr, Spw:off'was asked: "Jstheteanyreason that FedExdoea not urethia ~eofpromptingor

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41. Besides being a reactive fann of acoountabilityl FedEx's practice ofrelying on complaints as a monitoring mechanism is especially ineffective, since: the company does not do any tabulations or analysis ofoutcomes ofempJoyee complaints and disparities by race,77 It also provides no aocoootability for personnel actions involving casual employees. since they are not covered by the GET process. Those employees are especially disadvaniaged, since they do not receive perfo!ll1ll1lce reviews, they are ineligible fur merit raises, they do nol have access to the JCATS system, and there is no policy fur considering their experien", with the company as a fiIctor in considering them fur pennanenl hourly positions.78 Nothing in FedEx poHey prohibits managm fur using a "iap on the shoulder' system for inviting casual employees to apply for open pC!ll1ll1lent hourly positions.79
42. In sum, in the area ofequal employment opportunity at FedEx, the management principle of'what gets t:D.easured gets done" ap~ to have been replaced with one oftrout ofsight, out ofmind,II or, perhaps, ndon't ask, don't tell" The company allows discretion to be exercised in key areas ofpersonnel decision-maldng without monitoring the process Or assessing its impact on equal employment Opportunity. Top executives responsible equal employment opportonity, affirmative action, and diversity are uninformed about the impact ofcompany policies in these areas. Those who oversee
alert mecbanism to ensure compliance with FedEx's policies jn cues whste discipline is being issued and the emplo~ is adverselyinlpacted.?" His ~ (p. 198) was: ''I can't think ofany."
77Bmwndepo.. p. 88-90, 92.94; R••zan depo.,p. 15.16; Bank1 depo.,p. 73-74;llandridgo depo_, p. 25.26; Brooks depo., p. 23"z4.
78Hu1Il!r depo" p. 11~ 12. 32-35, 53·56. 79-82; PrCSlt(lples de:Po.. p. 124~131; WiIlitml.$()n depo.>
p.12;Bu.......... depo.. p.132-13._ 79presnopl.. depo., p_ 130.

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and implement policies and practices regarding performance assessment, promotion, compensation) and discipline eschew analysis ofraciaI disparities. Instead, it appears that they simply .ssume that the human resources sysrem is free ofbias, with no fuctuaJ basis fur that assumption.
THE EXERCISE OF DISCRETION IN FEDEX'S HUMAN RESOURCE SYSTEM BAS AN ADVERSE IMPACT ON MINORITIES
43. Above, I summarized researcb by social ,cientis1s and l!lllJUIgOIDent
professionaJs indicating that the exercise ofdiscretion in ahum.an l'e$ources system can have an adverse impact on minorities. Datn available from the FedEx personnel system allow fur several tests ofwhether the exercise ofdiseretion at the company worb to the
disadvantage ofminority employees. Plaintifll!' statistical expert, Dr. Richard Dmgin, has perfunned several tests ofthis conjecture, and each supports the conclusion that discretionary aspects ofth. pmonnel system disadvantage minority employees relative to wbites.
44. In the fin5t study, Dr. Drogin studied exceptions to the requirement that to be eligible to opply fur an hourly position in the JCATS system, an employee: (I) should not have a disciplinary d<>flciency (disciplinary warning within twelve months or disciplinary reminder within six months~ (2) have met the minim1llll required time in job; and (3) have • performance rating of.t least 5.0. (Policy allows local managers, at thcir own discretion, to waive the disciplinary exclusion ifthey determine that the disciptinaIY

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 55 of 94
31
action is for infraction. unrelated to the requirements ofthe posted job.SO) Dr. Drogin
found that over two third. ofwhires (68%) who sought to apply despite failing to meet at least one ofthe requirements were indeed approved to apply for an open position, compared to 61% for African Americans and 62% for Hispanics. Con'lJ'erSely. among those seeking to apply who met aU three requirements, 15% ofwhites were denied approval, compared to 21% ofAfrican Americans and 19% ofHispanics.81
45. Second, Dr. Drogin analyzed the incidence ofdeparture from policy requiring that those in priority job group 1be eligible for promotion into open positions ahead of those in priority job group 2 and specifYing that selections withinjob gronps be made according to CEV ranking. Dr. Dmgin referred to an applicant as receiving a Itpassoverll if he or she is injob group 2 and is seleeted instead ofan 'Pplicsnt in job gronp loris seleeted with a CEV score lower than. non-selected appllcant in the same priority group. Dr. Drogin's analysis shows that whites were significant1y more likely to receive these trpassover" promotions than either African Americans or Hispanics.82
46. Finally, Dr. Dl'Qgin's analysis ofracial disparities in perfurmance tatings of hourly employee, shows thet dlspariries tend to be greaWr for years 1997 through 2001
S0Sporoffdopa, voJ. ~ p. J2'.127, 220-221; Fif<r depo. p. 434&; Mc!lonaJd depo., p. &6-117.
Managers abo exerciso SOb discretion in deciding whether to dii$clpline emplO)'llelS OWl' m:ioor intactions. ofpolicies such as thQse ~ to Punctuality.see, e.g.,McDonaiddepo .• p.lOl-l05 and Reydepo., P. 178·186.
812006DroginR.epQrt.paragraphs41~49. Tab1es 17aaod 17b. Dr. Droginobtains similarrewll.$ when he controls for bavingpassed the Basic Sldlls Test (paragraph 55, Table 20).
82.2006 Drogin Report, paragraphs 50-S1. Table 18. Dr. Drogin obtains similar results when be controls for having passed the Basic Skills Test (patagtlll'b 56, Table 21).

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 56 of 94
32 compared to more recent ycars.83 As noted above at paragraph 32, in the years prior to the implementation ofthe online system, managers had discretion regarding the weighting ofperfunnance dimensions. The greater disparity in perfonnance ratings during those yeatS is consistent with the hypothesis that discretion was exercised in a manner that was disadvantageous to African American and Hispanic hourly employees. However, because the company has :yet to produce accurate infonnation on the timing ofchanges to the performance rating system, a precise assessment ofthis hypothesis is not possible with the available data.
47. In Short, social science research demonstrates that the exercise ofdiscretion in personnel systems in the abaence ofadequate monitoring is vulnerable to bias agsinst minorities, and Dr. Drogin's findings demonstrate that this phenomenon was indeed present at FedEx. It is reasonable to assume that other discretionary and unmonitored aspects ofthe personnel system for which there is no quantitative data are similarly biased against minority employ....
NOT ALL RACIAL BIAS AT FEDEX IS SUBTLE 48. There is testimony in the record that high-level FedEx managers bave uaed
racial slum in refening to African Americans and created a climate that has been hostile to minorities. Michael Snyder~ who was Vice President for the United States Eastern Region, testified that at the time Theodore "Ted" Weise was Vice President ofGround
Opemtinns, Weise (who eventually became CEO ofFedEx) used racisl slurs on muJtiple
83zooo Drogin Report, Tables30a and 3Db.

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occasions. and that Weise inappropriately instructed Snyder to ten utbe fucking nigger
with the beard" (an African American lI1lUlager working for Snyder) to shave his beard.
Snyder was warned by Michael Pigors, at the time Managing Director ofSouthern
caIifOrnia (and who subsequently became Vice President ofAGFS Western Region) not to challenge Weise on the matter and to carry out his directive.84 In placing the incident with Weise in context, David Rebholz, at the time a regional Vice President (and enrrently Exeentive Vice Preaiden~ Operation. and System. Support), counseled Snyder that he needed to understand that the company had a "southern mentality" and that he would have to accept h or risk belng an outsider.85 Snyder also ...tified that Rebholz chastised him fur being a "nigger lover" as evidenced by Snyder's concern about mcial issues.86
49. Snyder testified that at the time he began his posmon as Managing Director at the Three Rivers Distlict in Peansylvarda, David Rebholz, at the time Vice President of the Central Region, gave him an orientation about his peers and:referred to one ofthe other Directors as a "a militant nigger with achip on his shoulder.uS7 Snyder alsQ testified about racial hostility and slurs expressed by Timothy Wertner, who at the time was a FedE< Opemtions Manager (and later became Managiog Director ofthe La. Aogclcs Empire District). 88
I!4snyda-d.po., p. 20-28. 8SSn)Wor d.po., p. 47-48; Snyder Pet'away-VIo' v. FedEx d.po., p. 56. Mr. Snyder_led IhIIt these colMlent:i were made in 1992 or 1993 (S~ Pet/tnW.lY'- Vint v. FedEx &:po., p. 70N71)., 86So)der depo.• p. 47-48. 875n)der dEpo., p. 3942; Sn;,derPettaway..Viltt 11. FedEx dl'lpo., p. 52~.53. 88S.,oo d.po., p. 20-23, 26-31, 35-36, 50-51; Snyder Pet,.way-l'int v. FedEx depo.p. 58-59, 72,86.

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 58 of 94
34
50. Snyder left 1lle company in 1998, but his testimony about 1lle attitudes oftop
executives is relevant to ilio climate ofFedEl< dUring 1lle years ilia! followed. Social scienoe research shows that organizational policies, practices. and the tak.en~for-granted understandings that are part ofa company's culture~ once in place;. become institutionalized and mrely change in the absence of any substantial change in a iJrm's
business, technical, or legal environment89 The climate described by Mr. Snyder also
provides a context for the testimony ofJanet Haynes, a fonuet' Operations Manager employed in Anchorage, Alaska. Haynes, who is African American, testlfied lhat she was
often instructed to issue discipline to minority employees by white managers, who felt
that doing so would reduce the credibi1ity ofany charges ofracial discrimination.90
51. Most ofthe socialscienee and management sehnlarsltip lhat I haverclied
upon and summarized above addresses subtle fonns ofdiscrirnination, such as
89.L, Stinchcombo. "Social-Strocture and Organizations," p. 142..g3 in Handbook 0/
Organizatians, flditcd by J. O. March. Rand McNally, 1965; M T, Himnan and J, H. Freeman., "Sbuctund
InertiaandOrganizational Change." Alnmcan Sociological Review, Vol. 43.1984, p.. 143~164;I. N.Baron.
"Organizational Evidence ofAscription inLabor Markets." in New Approaches to Eoonomic and Social An.~.rD/$Q"I_o.. _brR. ~landP. W""""",PmeIl"'.1991. The eonceptoi'
organizational inertia has been applied in scientific Sbldies. conducted in a wide range ofindustria1 settinss. F()r reviews. see S. KaplIUt and R.. Henderson, "Inertia and lncentiws: Bridging Organi2:ational Economics and Orpti:tDtional '£booty,~ Organlzatum SciMce: A JOOl7laJ ofthe IMtitute ofManagement Sden«.f, Vol. 16.2005. p. SOSM21; and C. Gresov. H, A Haventall;. and T. A Oliva, "Orga.u:2:8tiottal Dwign. Inertia. IIJld the Dynamics ofCOillpetitive ResPOnse." Org«ni:tatloll Science: AJournal oftlt4 Institute 01
Management Sciences, VoI.4.1993. p, 181 ~208. Also see. fur example. I. Roggema and M. H. Smith.
"Organizational Change in the Shipping Industry. Issues in the TransfonnaUon ofBasic Assumptions.Q HwnunRelatitm8, vol, 36,1983, p. 76S~790;E.AJmbamsol1andC. J. Fombtun, "Macrocu1ttm!s: Detemtinants and CotlSeqUences," Academy o/Management Review. Vol. 19. 1994. p. 728-755; L. Garde.nswartz; and A Rowe, ''Diventity~: Practical Application in a Health Care OrgartizatiOll," Frontiers ofHMlth Se:rvkts Management, Vol. 11, 1994, p. 36-40; G. T, Fairhurn!;, S. Green, andJ.
Courtright. ''Inertial Fo~ and the Implementation ofa SocicHcchnical S;m:ems Approach: A Contnltl.tlieation Study," Orgallimtion Science. Vol. 6.1995, p. 168-185; C. Dolloouliagos" "Confollnity, Replication ofDesign and Business Niches," Journal ofEconomic Behavior & OrgcmftatiOIl, Vol, 30, 1996, P. 45-62; andM.. RUM, ~Assesaing Organizational Fitness on a DynamiQ Lm::Iscap~ An Empirical
Test oithe Relative Inertia 'Ibes.is.. SttategicManagement JO/.lnr.a/, Vol. IS, 1997, p. 831~853.
9G&ym:s:depo" p, 151~153.197~221.

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 59 of 94
35 stereotyping, a cognitive process that under certain ciroumstan<:es can intluence anyone's
perceptions and docision-making, regardless of their personal prejudices towards minority groups. However, blatant racism has not disappeared, and Mr. Snyder's testimony suggests that it has been a reality in middle·level and high·level management tanks at FedEx. Overt prejudice among managem undermin.. equal opportunity by contributing
to an environment that is hostile toward persons ofcolor, and it signals a lack of
management commitment to equal employment opportunity. and commitment is considered. key element ofeffective policies forntinimizing bias.91
CONCLUSION 52. I have concluded that the personnel system at FedEx is uniform, centtalized,
and in any WSY' highly ibrmallzed and standardized. It also has discretionary fuatures, and due to inadequate monitoring and aceountability, these t<atures are vulnerable to bias against African American and Hispanic employees. Statistical analyses ofhow discretion is exercised in the FedEx personnel system demonstrate that it has an adverse impact on
minority employees, consistent with a large body ofresearoh by social scientists and
llWl8gement scholars on the sources ofwozkplace racial bias. FedEx has taken a passive and reactive approach to equal employment opportunity, and itB efibrts at minimizing the potential for bias in decisions.regarding perfunnanoo assessment, pay. and promotion have been ineffective.
91Komadand Utmeban, QP cit.; Bielby, 2000, op cit

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 60 of 94 Exhibit B
------~==~-~==-~------.----.---

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 61 of 94
EXPERT REBUTTAL REPORT OF W1LUAM T. BIELBY Derrick Satchel~ et all!. FedEx Express September 1.2006
I. My lUlIl1e is William T. Bielby. I am a Professor in the Department of Sociology at thc University ofPennsylvania. I have been _med by the law fum of Lieff, cabraser, Heimann & Bernstein, counsel for plaintiffs in Derrick Satchell, et aL v. FedEx Express. I have previously authored two R.eports concerning Derrick SatcheTi. et aL v. FedEx. &press, one in September 2004. submitted by plaintiffs in support ofclass certification ("Bielby-I'), and another in June 2006 C'Bielby·2"). I have been aaked by plaietiftS· counselto reapond 10 the expert report of Dr. Philip Tetlock ('fetlock Report") submitted in June 2006 and to comment on aspects ofthe analysis in Dr. Maty Baker's
JlU1e 2006 expert report ("Baker Report' ) that relare to her charaererization ofcertain features ofthe FedEx personnel system as tlobjective" versus: "subjective" and her analysis of dJscipline. Dr. Tetlock and Dr. Baker are experts retained by the defendant.
2. Since submitting Bielby-2 on June 30, 2006, I have been provided w:ith the deposition IllmScrlpts and documeots listed in Appendix A. I have also received all ofthe expert reports submitted by plaintiffs' and d.fendanr, experts in Jun. 2006.
SUMMARY OF MY PRIOR REPORTS IN SATCHBU, ET AL. V. FEDEX 3. In Bielby-I. I described the slructun: of the Westem Region ofFedEx Express
("FedEx") p<:IE01lllcl system and festures ofthe company'. policies and prnctices for
making decisions about compensation, promotions, and perfonnance DBseBSment and for
eddressing equal employment opportunity (BED). I also sullllllllri<ed the substuntial

Case 3:03-cv-02659 Document 615 Filed 01/19/2007 Page 62 of 94
8
forum and address them with empirical research. Tetlock's criticisms ofthe field have been aired in a scientific forum, thejoumaIPsychological Inquiry, and the leading researchers in the field have provided detailed :responses in the same issue ofthe jOumaJ.11 When debate fucuses on scientifio issues it provides the impetus for further empirical research, which moves the :6eJd forward. In cont.l'aSt1 simply labeling researoh as "controversial" and making attributions about the personal values and political
attitudes ofthose who contribute to it impedes rather than advances scientific research. 15. Interestingly, the specif., scholatslrip Tetlock criticizes in Psychological
Inquiry, the "implicit association test" developed by Anthony Greenwald of the
University ofWashington and MahZArin Ilonaji ofHarvard University, is not work I cite
in my report, yet, Tet10ck devotes ten paragraphs ofhis expert report to repeating the attack on this line of research. 12 In contrast to his critique published in Psychological
inquiry, in the context ofthis litigation Tet10ck embellishes his criticisms with proVQcative labels and attacks on the alleged politics and motives ofthose with whom he
disagrees. ll
IIB,R. Arke.s Imd P. E. Tetlock, "Attributes ofhnplicit Pr'!Judice, or nWouJd Jesse lacbon 'Fail' the Implicit Association Test?,- hychologioolInquiry, Vol. 1:5,2004. p. 257-2.78;MRl:tanaji, B. A. Nosek,. and A. G. Greenwald, "No Place for Nost<!lgia in Science: AResponse to Arkes BOO. TetlO'Ck." PsychofogllXll Inquiry, VoL IS, 2004. p, 279M310. Regarding criticisms oithe "response latency" methodologyused in implicit bias research, social p;ychologist Eugene Borglda and colleagues wrote:
l{owover. given the finn grounding ofmethodologi6$ inoognitive p$)'Chology!lS well as con.sistenoy ofresponse patterns filund actoS$ numerous studies, there is no SeriOUil question within the p3ycboJogical corntnUIlity about whether response latency metho&.dogies ate a usefuJ
means: ofstudying stereotyping.
J. S. Hunt,. E. Borgida, K. M. Kelley. andD. Butgcss. ''Gender Stereotyping: Scienrlfie Status,~ pp. 384-426 in ModemSclmtjficEYidence: TheLaw (I1U] ScienceqfElpert Testimtmy, edited by D. Fsigman, 0,
H. Kaye, M. J. Sacks. ttl1d 1. Sanders, West Publishing Co .. 2002, quotation from p. 390.
Ilretlock Report, p. 14M19. paragraph 24-33. 1'etlock's attack on the scholarship based on the implicit 3Sl!Ociation test b almst identical to the one that appears in his report submitted inNels(m v, Wal-Mart. l'retloek'sattaclc Oil the ~ ofGreenwaJd. B~ij and tJtejrcollaborators has also appeamdon the opinion pagt:: ofthe Wall Street JQUrnal. See A Wax andP, E, Tetlook, "We're All Racists at Heart," Wall StreeJ J(JUf1'Ul~ December 1. 2005, p. A16.

 
 Case 3:03-cv-02659 Document 621-3 Filed 01/19/2007 Page 2 of 20

James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452) 2 Eve H. Cervantez (SBN 164709) Chimene I. Keitner (SBN 226948) 3 LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP 4 275 Battery Street, 30th Floor
Sail. Francisco, CA 94111-3339 5 Telephone: (415) 956-1000
Facsimile: (415) 956-1008 6
Todd M. Schneider (SBN 158253) 7 GuyB. Wallace (SBN 176151)
Joshua Konecky (SBN 182897) 8 SCHNEIDER'& WALLACE
180 Montgomery Street, Suite 2000 9 San Francisco, CA 94104
Telephone: (415) 421-7100 10 Facsimile: (415) 421-7105
11 JOHN BURRIS (SBN 69888) 7677 Oakport Bldg., Suite 1120
12 Oakland, CA 94612 Telephone: (510) 839-5210
13 Facs~mile: (510) 839-3882
14
15 Class Counsel

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) 225 Bush Street, 16th Floor San Francisco, CA 94104 Telephone: (415) 227-9622 Facsimile: (415) 227-4522
WAUKEEN Q. MCCOY (SBN 168228) 703 Market Street, Suite 1407 San Francisco, CA 94103 Telephone: (415) 675-7705 Facsimile: (415) 675-2530

16 UNITED STATES DISTRICT COURT
17 NORTHERN DISTRICT OF CALIFORNIA
18

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

Case No. C 03-2659 SI; C 03-2878 SI
STATISTICAL ANALYSIS OF RACE AND ETHNIC PATTERNS IN FEDERAL EXPRESS WORKFORCE, BY RICHARD DROGIN, PH.D.

23

Plaintiffs,

24 v.

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

28

547854.1

Case 3:03-cv-02659 Document 621-3 Filed 01/19/2007 Page 3 of 20
STATISTICAL ANALYSIS OF RACE AND ETHNIC PATTERNS IN FEDERAL EXPRESS WORKFORCE
Richard Drogin, Ph. D.
June 30, 2006
Richard Drogin, Ph. D.
Drogin, Kakigi & Associates 3104 Shattuck Avenue, Berkeley, CA 94705
(510) 540-5071

Case 3:03-cv-02659 Document 621-3 Filed 01/19/2007 Page 4 of 20
Statistical Analysis of Race and Ethnic Patterns in Federal Express Workforce
Prepared by Richard Drogin, Ph. D. June 2006
A. INTRODUCTION 1. I hold a Ph.D. in statistics from the University of California at Berkeley, earned in 1970. I am currently an Emeritus Professor in the Department of Statistics at California State University, Hayward, where I have taught graduate and undergraduate courses in data analysis, non-parametric methods, regression analysis, sample surveys, probability theory, queuing theory, simulation methods, and design of statistical software. I have been employed at California State University, Hayward, since 1973, and became an Emeritus Professor in 1996.
2. I am a partner in the statistical consulting firm of Drogin, Kakigi & Associates. This firm provides consulting services and computerized database management. We have experience in designing sample surveys, supplying census demographic data, organizing and managing large database systems, stochastic modeling, and performing advanced statistical analysis. Our firm has served as statistical consultants to both governmental agencies and the private sector for over twenty years. I have testified as an expert witness (statistical analysis, computer processing) in numerous state, and federal courts. A copy of my curriculum vitae is attached as Appendix 1
3. I have been retained by Plaintiffs' counsel to analyze statistical questions raised in the Satchell v. Federal Express litigation. I previously submitted declarations in support of plaintiff's motion for class certification dated September 10, 2004 and December 17, 2004. The purpose of my study was to obtain descriptive summaries of computer data, and prepare various statistical analyses relevant to the issues in the case. I examined statistics pertaining to workforce summaries, advancement patterns, compensation levels, job posting, performance ratings, discipline, and testing.
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Case 3:03-cv-02659 Document 621-3 Filed 01/19/2007 Page 5 of 20
4. In order to conduct my study, I was provided with computer-readable personnel and compensation data received through discovery as well as documentation and clarification regarding this data, contained in letters, emails between counsel, additional electronic files, and depositions.
5. This report will describe the data provided to me, how it was processed, the statistical methodology, and the results of my analysis.
B. SUMMARY OF CONCLUSIONS 6. As described in detail in the remainder of this report, I reach the following conclusions: a) Among hourly employees, African American and Latino employees al"e disproportionately concentrated in lower paying jobs. b) Nearly 50% of promotions from one hourly class job to another hourly class job during 1997-2005 are not contained in the JCAT database used for posting and tracking hourly job promotions. c) 80% of promotions from Handler jobs into the Courier position during 19972005 are not contained in the JCAT database d) There is a statistically significant shortfall of African Americans among those promoted from Handler to Courier jobs during the class period (October 17, 1999present) and during 1997-2005. e) There is a statistically significant shortfall of African Americans among those promoted from all non-Courier jobs to Courier jobs during the class period and during 1997-2005. f) There is a statistically significant shortfall of African Americans among those promoted from Handler to Material and Freight Handlers jobs during the class period and during 1997-2005. g) There is a statistically significant shortfall of African Americans among those promoted from Handler to Checker /Sorter jobs during the class period, and during 1997-2005.
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Case 3:03-cv-02659 Document 621-3 Filed 01/19/2007 Page 6 of 20
h) There is a statistically significant shortfall of African Americans among those advancing from part-time hourly to full-time status during the class period, and during 1997-2005.
i) There is a statistically significant shortfall of Latinos among those promoted from Handler to Courier jobs during the class period.
j} There is a statistically significant shortfall of Latinos among those promoted from hourly jobs into Operations Manager jobs during the class period and during 1997-2005.
k) An analysis of promotions to all permanent hourly positions using data from Federal Express' Job Change Application Tracking System UCATs) shows that there is a statistically significant shortfall in selection of African American and Latino employees among applicants for promotions to hourly positions during the class period.
1) There is a statistically significant shortfall in approval of African American and Latino employees among JCAT applicants during the class period.
, m) There is a statistically significant shortfall in selection of African American and Latino employees among JCAT approved applicants during the class period.
n) For each of the promotion analyses above where Courier is the target job (in d, e, and i), the disparities are still statistically significant when BST is added as a control factor. The shortfall of African Americans advancing from hourly part-time to fulltime status is still statistically significant when BST is added as a control factor.
p) African American hourly employees have lower average pay rates than similarly situated white employees. These disparities are statistically significant every year.
q) Latino hourly employees have lower average pay rates than similarly situated white employees. These disparities are statistically significant every year.
r) African American Operations Managers have lower average monthly pay rates than similarly situated white employees. These disparities are statistically significant every year.
s) Both African Americans and Latinos have lower pass rates on each combination of the BST tests than whites. These disparities are statistically significant. The same
3

Case 3:03-cv-02659 Document 621-3 Filed 01/19/2007 Page 7 of 20 conclusion holds when the analysis restricts to the first BST taken, and when restricting to tests taken after date of hire.
t) Both African Americans and Latinos have a statistically significant shortfall in performance ratings each year, when accounting for different performance review type and reviewing manager.
u) African Americans receive significantly more discipline warnings, reminders and suspensions than whites in every year of discipline data1999-2005. Latinos received more discipline than whites in every year of discipline data 1999-2005, and significantly so in 1999-2001. These analyses control for year of discipline and job group at the beginning of the year.
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Case 3:03-cv-02659 Document 621-3 Filed 01/19/2007 Page 8 of 20

G. PROMOTION ANALYSIS USING }CATS Introduction
40. The Job Change Application Tracking System QCATS) is an electronic job posting system for viewing and applying for open hourly positions. Job openings are posted in the JCATS system, applicants apply and then must obtain approval from their current manager to be considered for selection to the opening.14 Under FedEx policy, Managers are not to approve applicants who are under a discipline deficiency circumstance15, do not have the required minimum time in job, or have current performance ratings below 5.0.16 Job postings are open for a week and are closed on Fridays17. After the posting is closed the hiring manager is given a list of approved applicants. According to FedEx policy, approved applicants from job ranking category 1 should have priority over approved applicants with job ranking category 2.18 Also, within a given job ranking category, preference is supposed to be given to

14 People Manual, page 172, bates PMllOOP172, "Electronic Job Change Application

Procedure", and defendants' responses to questions.

a) A hiring manager posts job openings on JCATS under a "Post Number."

b) Interested permanent employees apply for job on JCATS, creating an "Applied"

activity record under the Post Number.

c) Applicants must be approved by their managers, creating an " Approved"

activity record under the Post Number.

d) Hiring managers make selections from the approved applicants creating an

"Accepted-Offer" activity record. A selectee may inform managers that he or she

is not interested in the job, in which case a "Declined" activity record is

generated. When the hiring manager enters an effective date of the selection a

"Hired" or "Future Hired" activity record is then created.

15 An employee is in a discipline deficiency circumstance if there has been a warning

letter in the last 12 months or a relevant reminder in the last 6 months (See People

Manual 2-5 and 2-50).

16 Managers answers three yes-no questions that appear on the JCATS screen:

(1) Is employee's record clear of any current performance deficiencies'related

to the position?

(2) Does the employee meet time in job?

(3) Does the employee meet the minimum qualifications of the job?

If the applicant's manager answers "no" to any of these questions, then the applicant

is not approved for the job. (See deposition Exhibit 36, page 23) In addition to these

three requirements, an applicant should not be approved if

(4) Employee's current performance rating is below 5.0. (See People Manual,

4-15)

17 Vicki Williamson deposition transcript, page 50.

18 See depo Exhibit 36,page 33

.

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Case 3:03-cv-02659 Document 621-3 Filed 01/19/2007 Page 9 of 20
the person with the highest CEV score.19 Despite these policy guidelines, the JCAT computer system permits the hiring manager to select anyone on this lisfo.
JCATS Data 41. The JCATS data I received in February 2006 consisted of activity records for
JCATS applicants. Information on each record included employee ID, from job comat, to job comat, to job code, activity, date, post number, rankings, job ranking category, CEV rating number. On March 15, 2006, I received a file that contained an additional CORPORATE FLAG field and replaced the February 2006 JCATS data. The apply dates in ranged from July 1988, to January 2006. An activity record of "Approved" indicates the applicant was approved by his current manager. An activity record of "Accepted-Offer", "Declined", "Hired" or "Future Hired" indicates the applicant was selected by the hiring manager for the posted job opening.
42. Postings in the JCATS data contained 387,205 applications during the period January 1997 to January 2006. The database includes all job postings where there was at least one applicant who worked in a class job in the Western Region. Among those applying for class jobs, 45% were white, 34% were African American, and 14% were Latino. The job group with the greatest number of applications was the Courier job group with 37% of the job group applications, followed by Ramp Agent with (17%), Ramp Diver (14%), Material/Freight (14%) and CSA (8%).
Analysis of Selections for Promotion to Hourly Positions Using JCAT Data 43. I first used the JCATs data to study the question of overall impact of the
JCATs process on minority class members: Are minority applicants less likely to be selected21 than white applicants22?
19 See depo Exhibit 36,page 30. CEV is computed from months of continuous service as a permanent employee and the two most recent performance ratings. 20 Vicki Williamson deposition transcript, page 54-57. 21 Selected means an Accepted-Offer, Hired, Future Hire or Declined activity appears among that person's JCATS records within a posting. 22 In all my analyses comparing white and minority success rates, applicants who applied refers to any applicant who had an "Applied" activity code, and did not withdraw before the first selection.
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Case 3:03-cv-02659 Document 621

Filed 01/19/2007 Page 10 of 20

Manager Approval is a Tainted Variable 52. According to Federal Express policy, an applicant in JCATs is required to
have a performance rating of 5 or more, and no discipline deficiencies, to be approved. However, since there is adverse impact against minorities in performance ratings and discipline, these requirements will disproportionately screen out otherwise qualified minority applicants. In addition, as described above,27 there are a substantial number of cases where manager discretion is exercised in giving approval, or not, to applicants in JCATs. Moreover, there is a statistically significant shortfall in approvals of minorities compared to their representation among applicants, indicating adverse impact in the overall approval process.28 Accordingly, receiving manager approval to continue in the JCAT process is a tainted variable, and restricting to approved applicants in analyzing selection rates is not a reasonable proxy for measuring the availability of those interested and qualified for promotion. Nevertheless, 1have performed analyses toexamine whether there is still adverse impact against minorities in selection among those who are approved, ignoring the defects in the approval process just described.

Analysis of Selection Rates Among Approved Applicants 53. The following table summarizes the analysis of selection rates among
similarly situated approved applicants. Table 19
Analysis of Approval and Selection Rates Restricted to apply dates on or after October 17, 1999.

Applicants Included In Analysis

White v. AfrAm

White v. Latino

Dependent ----------------- ----------------variable Shortfall Z value ,Shortfall Z value

1 Applied Approved

-> Selected -676.85 -6.30 -261.52 -5.25

27 See earlier section labeled "Discretion in Awarding Approval, or Not". 28 The Z-value comparing approval rates of whites and African Americans, and whites and Latinos, are -23.13 and -11.35, respectively.
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Case 3:03-cv-02659 Document 621

Filed 01/19/2007 Page 11 of 20

J. ANALYSIS OF PERFORMANCE RATINGS
69. Permanent employees are evaluated by their managers through a system of performance ratings. The scale used depends on whether an employee is hourly or salaried. Hourly employees are rated on the performance review type uR" scale ranging from 1.0 to 7.0. A rating of 7.0 is the highest.

70. The following table gives the average performance ratings given in the year 2000, for each hourly job group. In each job group African American employees had a lower average performance rating than whites. Latinos had a lower average performance rating than whites in 5 out of the 8 job groups.

Table 29

Summary of Performance Ratings for Hourly Class Jobs - 2000

Job Title Ramp Agent Ramp Transport Driver Courier Shuttle Driver Customer Service Agent Checker/Sorter Material & Fr't Handler Handlers

Em12loyees Total %AfAm %Lat.
410 16.8 15.1 1163 22.8 15.9 9136 13.5 17.4
305 36.4 28.9 1391 20.0 16.0
688 61.0 17.0 1226 40.0 19.4 1911 42.1 15.9

Ave Perf. Rate Wht AfAm Lat. 6.74 6.66 6.65 6.72 6.68 6.68 6.31 6.01 6.14 6.58 6.46 6.58 6.54 6.27 6.32 6.21 6.18 6.39 6.33 6.28 6.33 6.19 5.90 6.09

71. The descriptive summary in the previous table gives the overall average performance ratings by job group, aggregated across performance review type, test version, and reviewing manager, for hourly class job groups. I have performed a statistical test known as the permutation test to determine whether there is a statistically significant difference in the performance ratings of white employees compared to African American employees, and the performance ratings of white employees compared to Latino employees. These analyses control for particular performance review type version, reviewing manager, and year.37 So, performance ratings of employees are compared separately for each subgroup of employees who

37 The pennutation test is based on the OLPREXT_D011806 datafile provided in May 2()06.

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Case 3:03-cv-02659 Document 621

Filed 01/19/2007 Page 12 of 20

were reviewed under the same review type and version, by the same manager, and in the same year. The analysis is restricted to those hourly employees in hourly class
jobs who have a performance review type R rating. The following table shows the z-
values for these analyses, when the disparities in separate subgroups are aggregated by year. Details are given in Appendix 13a-c.

Table 30a Analysis of Performance Review Ratings
Hourly Employees Whites Compared to African Americans

Year 1997 1998 1999 2000 2001 2002 2003 2004 2005 Total

Z-Value -12.80 -10.48 -10.81 -11.54
-9.37 -5.72 -6.01 -4.72 -5.66 -15.91

Table 30b Analysis of Performance Review Ratings
Hourly Employees Whites Compared to Latinos

Year 1997 1998 1999 2000 2001 2002 2003 2004 2005 Total

Z-Value -6.73 -8.05 -6.34 -7.00 -6.27 -2.38 -5.83 -1. 71 -2.85 -8.78

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Case 3:03-cv-02659 Document 621

Filed 01/19/2007 Page 13 of20

Appendix 13a

Page 1

Average Performance Ratings

by Year, Race, Jobs

Total

Restricted to persons with positive $/Ur, Active at Year-End, with Perf Ratings Restricted to Hourly Employees

1997

1998

1999

Nbr EEEs

Ave Perf Rate

Nbr EEEs

Ave Perf Rate

Nbr EEEs

Ave Perf Rate

.JobCd

.Job Title

Total %Blk %Hisp Wht Blk HiBp Total %B1k %Hisp , Wht Blk Hisp Total %alk iHisp Wht alk Hisp

18 B1427 Hgr Hub Ops 33 82549 Mgr Station Ops/COL 111 Total Operations Manager

0.0 0.0 0.00 0.00 0.00 0.0 0.0 6.80 0.00 0.00 0.0 0.0 6.80 0.00 0.00

0.0 0.0 0.00 0.00 0.00 0.0 0.0 6.80 0.00 0.00 0.0 0.0 6.80 0.00 0.00

0.0 0.0 0.00 0.00 0.00 0.0 0.0 0.00 0.00 0.00 0.0 0.0 0.00 0.00 0.00

112 R0009 Ramp Agent/Trunk/DOT 113 R0019 RaJllp Agt-Trunk(Non-DOT) 114 R0100 Ramp Agt Trunk DOT/COL 115 R0102 Ramp Agt/Feeder/DOT/CDL 116 ROI03 Ramp Agt/Feeder/Non-D9T 11 B Total Ramp Agent

72 285
o
2 368

4.2 17.9 22.2
0.0 50.0 15.5

6.9 10.2 22.2
0.0 0.0 9.8

6.76 6.66 6.74 0.00 6.80 6.69

6.57 6.54 6.70 0.00 6.50 6.54

6.56 6.40 6.75 0.00 0.00 6.44

49 2.0 8.2 6.84 6.30 6.73
313 16.9 11.8 6.73 6.57 6.62
11 36.4 18.2 6.84 6.53 6.85
o 0.0 0.0 0.00 0.00 0.00
2 50.0 0.0 6.80 6.70 0.00 375 15.7 11.5 6.75 6.57 6.64

39 0.0 12.8 6.82 0.00 6.94 345 16.5 14.2 6.76 6.57 6.69
14 35.7 14.3 6.76 6.58 6.25 1 0.0 0.0 6.40 0.00 0.00 33.3 0.0 6.95 6.50 0.00
402 15.7 13.9 6.77 6.57 6.70

119 RODIO Ramp Transport Driver 120 R0105 RTD 121 Total Ramp Transport Driver

814 198 1012

20.3 20.7 20.4

13.1 19.2 14.3

6.61 6.42 6.58

6.52 6.25 6.46

6.50 6.05 6.38

964 88
1052

20.6 21. 6 20.7

15.4 9.1
14.8

6.67 6.65 6.67

6.62 6.64 6.62

6.60 6.65 6.60

1043 53
1096

21.8 24.5 21.9

15.4 7.5
15.1

6.68 6.65 6.68

6.67 6.51 6.66

6.66 6.65 6.66

122 ROD02 Courier/DOT 123 R0006 Courier/Handler/DOT 124 ROOIS courier/Handler/Non-OOT 125 R0021 Courier/Non-Driver 126 R0037 Courier/Feeder Agt/DOT 127 ROQSS courier/Swing Drvr/CDL 128 ROOBS Courier/Non-DOT 129 R0092 courier/Fdr Agt/Non-DOT 130 R0094 Courier/Hahdler DOT/COL 131 R0096 courier/Dot/Cdl 132 R0099 Courier/Fdr Agt/DOT/CDL 134 R0108 courier/R""'p Agt/CDL 135 R0109 Courier/Ramp Agt/DOT 136 Total Courier

3109 79 14 38
122 965 3119
15 45 841 53
1
8401

14.4 15.2 42.9 18.4
2.5 17.8 18.0
0.0 15.6 10.6
1.9 0.0 0.0 15.5

16.7 21.5
7.1 13.2
8.2 14 .5 14.1 26.7 33.3 15.6
5.7 0.0 0.0 15.3

6.13 5.61 6.30 6.60 6.56 6.18 6.12 6.54 5.80 6.17 6.36 6.00 0.00 6.14

5.75 5.28 5.83 5.81 5.83 5.81 5.72 0.00 5.17 5.76 6.40 0.00 0.00 5.74

5.86 5.65 6.80 6.24 6.52 6.12 5.91 6.15 5.43 5.92 6.87 0.00 0.00 5.91

5071 81
31 122 1079 1408
7 46 993 62
o
8909

16.2 l4.8 14.3 19.4
1.6 l4.8 13.8
0.0 19.6 10.6
3.2 0.0 0.0 14.7

16.8 18.5
0.0 9.7 9.8 17.1 11.5 42.9 32.6 14.9 4.8 0.0 0.0 15.7

6.13 5.85 4.60 6.78 6.52 6.24 6.31 6.85 5.74 6.29 6.53 6.45 0.00 6.20

5.77 5.38 6.30 6.05 6.05 5.84 5.98 0.00 5.43 5.88 6.75 0.00 0.00 5.82

5.93 5.72 0.00 6.07 6.33 6.16 6.16 6.37 5.64 6.05 6.90 0.00 0.00 6.00

6010 92 3 31
134 1108
304 4
53 1012
69
8821

14.9 21.7
0.0 19.4
0.7 14.0
7.2 0.0 13.2 11. 6 2.9 0.0 0.0 13.9

16.6 15.2 33.3 16.1
9.0 18.5
8.9 75.0 35.8 14.5
4.3 0.0 0.0 16.2

6.19 5.94 5.95 6.75 6.49 6.19 6.40 5.70 5.85 6.29 6.53 6.60 0.00 6.22

5.90 5.44 0.00 6.05 6.60 5.82 5.65 0.00 5.90 6.00 6.80 0.00 0.00 5.89

6.04 5.83 6.70 5.36 6.33 6.08 6.04 6.60 5.65 6.16 6.53 0.00 0.00 6.06

137 R0069 Shuttle Driver/DOT 138 R0090 Shuttle Driver Non-DOT 139 R0093 Shuttle Driver/COL 140 Total Shuttle Driver

185 40.0 28.6 6.28 6.19 6.14 9 44.4 11.1 6.10 6.22 7.00
58 29.3 17.2 6.07 6.27 6.51 252 37. 7 25.4 6.20 6.21 6.21

206 40.8 24.8 6.34 6.17 6.35 50.0 0.0 6.45 6.20 0.00
110 28.2 27.3 6.41 6.24 5.94 320 36.6 25.3 6.37 6.19 6.20

188 42.0 1 100.0
102 29.4 291 37.8

29.3 0.0
30.4 29.6

6.40 0.00 6.48 6.44

6.35 7.00 6.43 6.38

6.43 0.00 6.05 6.29

141 P0004 Service Agent/DOT 142 POOI7 service Agent/Non-DOT 143 P0022 Sr Service Aqent/DOT 144 F0026 Sr Svc Agent/Non-DOT 146 P0095 Service Agent/Non-DOT 147 F0098 service Agent/Non-DOT/A 149 F0300 Svc Agt/Non-DOT/AGFS 150 F0301 Sr Svc Agt/DOT/AGFS 151 F0302 Sr Svc Agt/Non-DOT/AGFS 156 Total Customer Service Agent

35 6
1036 164 8
71 1321

0.0 28.6 33.3 20.7 25.0 12.5
0.0 0.0 15.5 21.1

0.0 22.9
0.0 l4.8 14.0 12.5
0.0 0.0 15.5 l4.8

5.30 6.02 6.38 6.46 5.65 6.62 0.00 0.00 6.68 6.37

0.00 6.11 6.05 6.18 5.47 5.50 0.00 0.00 6.55 6.08

0.00 6.00 0.00 6.31 5.34 6.70 0.00 0.00 6.55 6.20

181 5
1080 46 2
82 1403

0.0 27.1 20.0 20.5 26.1
0.0 0.0 0.0 18.3 21.2

0.0 17.7
0.0 14.4 15.2
0.0 0.0 0.0 14.6 l4.8

5.50 5.77 6.43 6.55 6.16 6.70 5.95 0.00 6.70 6.47

0.00 5.76 6.00 6.30 5.77 0.00 0.00 0.00 6.51 6.20

0.00 5.41 0.00 6.34 5.84 0.00 0.00 0.00 6.69 6.20

0.0 199 21.1
8 12.5 1134 20.6
100.0 0.0 0.0 0.0
84 17.9 1433 20.4

0.0 20.1
0.0 14.3
0.0 0.0 20.0 0.0 13.1 14.9

6.00 5.80 6.42 6.61 0.00 0.00 6.17 0.00 6.75 6.52

0.00 5.84 6.90 6.29 5.80 0.00 0.00 0.00 6.54 6.24

0.00 5.69 0.00 6.43 0.00 0.00 6.40 0.00 6.75 6.31

157 R0048 Checker/Sorter 158 R02l2 Sr Checker Sorter 159 Total Checker/Sorter

713 60.7 16.1 6.15 6.01 6.16 0.0 0.0 0.00 0.00 0.00
713 60.7 16.1 6.15 6.01 6.16

721 60.2 17.3 6.27 6.05 6.19 2 0.0 0.0 6.80 0.00 0.00
723 60.0 17.3 6.28 6.05 6.19

702 62.5 1 100.0
703 62.6

16.5 0.0
16.5

6.25 0.00 6.25

6.09 6.60 6.09

6.26 0.00 6.26

160 R0049 Material Handler 161 R0070 Sr Freiqht Handler 162 R0071 Frt Handhtr/Non-DOT (G) 163 R0072 Material Handler/DOT'* 164 R0075 Freight Handler/DOT (G) 165 R0097 Frt "andler/DOT/COL (G) 167 Total Material, Fr't Handler

494 41.3 20.9 6.11 6.01 6.18 14 21.4 7.1 6.67 6.80 6.80
300 31. 3 17.7 6.41 6.32 6.49 0.0 0.0 0.00 0.00 0.00
50.0 0.0 6.90 6.30 0.00 0.0 0.0 0.00 0.00 0.00
810 37.3 19.4 6.25 6.12 6.29

661 42.2 20.7 6.17 6.10 6.21
7 28.6 14.3 6.80 6.60 6. 80 305 28.5 20.0 6.45 6.46 6.53
o 0.0 0.0 0.00 0.00 0.00
50.0 0.0 6.80 6.60 0.00 0.0 0.0 0.00 0.00 0.00
975 37.8 20.4 6.28 6.19 6.31

786 1
295
1085

43.6 19.5 0.0 100.0
29.8 18.6 0.0 0.0 0.0 0.0 0.0 0.0
39.7 19.3

6.22 0.00 6.51 0.00 6.90 5.90 6.31

6.15 0.00 6.41 0.00 0.00 0.00 6.20

6.28 6.80 6.46 0.00 0.00 0.00 6.33

168 R0003 Handler (DOT) 169 Re015 Handler (Non-DOT) 170 R0068 Handler/Shuttle Dr/DOT 171 R009l Hndlr/Shutl Drv/Non-DOT 172 R0095 Handler/Shuttle Drv/CDL 173 ROIOI Handler DOT/COL 174 Total Handlers

32 2014
107 25 17 2
2197

31.2 44.4 29.0 12.0 29.4
0.0 42.9

9.4 14.6 19.6 44.0 17.6
0.0 15.1

5.66 5.77 6.07 6.19 5.75 6.50 5.79

6.27 5.48 5.78 6.00 6.12 0.00 5.50

6.63 5.71 6.03 6.48 5.67 0.00 5.76

67 2051
122 19 26 3
2288

34.3 42.9 25.4 21.1 46.2
0.0 41.5

28.4 l4.5 26.2 21.1
7.7 33.3 15.6

6.03 5.87 5.98 6.36 6.44 6.55 5.89

6.03 5.59 5.83 5.83 6.12 0.00 5.62

5.82 5.90 5.99 6.17 6.20 4. 70 5.91

42 2142
115 13 34 2
2348

31.0 44.3 28.7 38.5 32.4
0.0 43.1

23.8 14.7 24.3 15.4 14.7
0.0 15.3

5.88 5.92 6.14 6.43 6.55 6.20 5.94

5.98 5.63 6.11 6.30 6.24 0.00 5.66

5.89 5.90 6.15 6.15 5.78 0.00 5.92

175 F0206 SR TRACE REP 176 F0210 Sr Trace Rep/Overgoods 177 F0320 Service Assurance Agent 178 ROOOI Dispatcher (DOT) 179 R0016 Dispatcher (Non-DOT) 180 R0022 operations Agent 181 R0047 Dangerous Goods Agent 182 R0079 TRUC" CONTROL AGENT 183 R0083 Team Leader/DOT 184 R0084 DANG GOODS AGT/OOT 185 ROllI Dispatcher 188 R0117 IntI Checker 189 R0200 IntI Export Checker 190 R0201 Teamleader 191 R0202 Information Agent 192 R0205 INPUT AUDITOR 193 R0206 Ramp Area Driver 194 R0211 IntI Import Checker 195 Total Other Hourly in Class

4 232 116 110
19
o
2
o o
23 340
87 47
43 1026

0.0 0.0 0.0 25.0 12.5 55.2 25.5 26.3 0.0 0.0 0.0 0.0 65.2 35.3 37.9 63.8 33.3 41. 9 33.5

0.0 0.0 0.0 0.0 9.1 8.6 19.1 15.8 0.0 0.0 0.0 0.0 8.7 15.9 6.9 10.6 33.3 7.0 12.3

0.00 0.00 0.00 6.60 6.47 5.89 6.35 6.03 0.00 6.60 0.00 0.00 6.27 6.51 6.40 6.17 6.40 6.48 6.42

0.00 0.00 0.00 5.00 6.31 5.87 6.25 6.62 0.00 0.00 0.00 0.00 6.35 6.42 6.16 6.05 5.90 6.32 6.23

0.00 0.00 0.00 0.00 6.39 6.62 6.54 6.57 0.00 0.00 0.00 0.00 5.70 6.42 6.27 6.30 6.70 6.40 6.43

11
o
242 142 142
32
1 44
20 383
96 47
3 56 1223

0.0 63.6
0.0 25.0 12.0 46.5 26.1 50.0
0.0 0.0 22.7 0.0 85.0 40.2 37.5 55.3 33.3 55.4 35.2

0.0 18.2
0.0 0.0 10.7 11.3 19.0 15.6 0.0 0.0 13.6 0.0 0.0 16.7 11.5 17.0 0.0 5.4 13.7

0.00 0.00 0.00 6.83 6.50 6.03 6.39 6.24 0.00 6.70 6.84 0.00 6.10 6.56 6.52 6.53 6.10 6.65 6.49

0.00 6.51 0.00 6.30 6.16 5.96 6.24 6.42 0.00 0.00 6.83 0.00 6.14 6.53 6.37 6.05 4.70 6.40 6.32

0.00 7.00 0.00 0.00 6.42 6.14 6.40 6.78 0.00 0.00 6.75 0.00 0.00 6.54 6.12 6.35 0.00 6.37 6.44

o
5 244 131 150
62
o
50
19 427 127
69 2
61 1355

0.0 62.5
0.0 40.0 11.1 38.2 27.3 61. 3
0.0 0.0 26.0 0.0 73.7 41.2 36.2 55.1 0.0 52.5 35.6

0.0 25.0
0.0 0.0 11.5 9.9 16.7 16.1 0.0 0.0 12.0 0.0 5.3 15.2 15.0 14.5 0.0 8.2 13.6

0.00 0.00 0.00 6.80 6.48 6.02 6.38 6.32 0.00 0.00 6.82 0.00 6.07 6.58 6.45 6.41 6.55 6.66 6.48

0.00 6.62 0.00 6.70 6.31 6.21 6.23 6.41 0.00 0.00 6.82 0.00 6.04 6.56 6.46 6.26 0.00 6.41 6.42

0.00 6.90 0.00 0.00 6.39 6.24 6.56 6.39 0.00 0.00 6.58 0.00 6.60 6.61 6.40 6.40 0.00 6.38 6.49

Case 3:03-cv-02659 Document 621

Filed 01/19/2007 Page 14 of 20

Appendix 13a

Page 2

Average Performance Ratings

by Year, Race, Jobs

Total

Restricted to persons with positive $/Hr, Active at Year-End, with Perf Ratings Restricted to Hourly Employees

2000

2001

2002

Nbr EEEs

Ave Perf Rate

Nbr EEEs

Ave Perf Rate

Nbr EEEs

Ave Perf Rate

JobCd

Job Title

Total 'Blk 'Hisp Wht Blk Hisp Total 'Blk 'Hisp Wht Blk Hisp Total 'Blk 'Hisp Wht Blk Hisp

18 B1427 Hgr Hub Ops 33 B2549 Hgr Station Ops/COL 111 Total Operations Manager

0.0 0.0 0.00 0.00 0.00 0.0 0.0 3.50 0.00 0.00 0.0 0.0 3.50 0.00 0.00

0.0 0.0 0.00 0.00 0.00 0.0 0.0 0.00 0.00 0.00 0.0 0.0 0.00 0.00 0.00

0.0 0.0 0.00 0.00 0.00 0.0 0.0 0.00 0.00 0.00 0.0 0.0 0.00 0.00 0.00

112 ROQ09 Ramp Agent/Trunk/DOT 113 RODI9 Ramp Agt-Trunk(Non-DOT) 114 ROlOD Ramp Agt Trunk DOT/COL 115 ROI02 Ramp Agt/Feeder/OOT/CDL 116 ROIC3 Ramp Agt/Feeder/Non-DOT 118 Total Ramp Agent

42 2.4 9.5 6.87 6.60 6.75 347 18.2 15.9 6.72 6.65 6.64
16 31.2 12 .5 6.60 6.76 6.95 1 0.0 0.0 6.60 0.00 0.00 4 0.0 25.0 6.87 0.00 6.70
410 16.8 15.1 6.74 6.66 6.65

43 7.0 14.0 6.88 5.67 6.87 361 17.5 15.8 6.73 6.70 6.65
20 25.0 10.0 6.68 6.66 6.90 0.0 0.0 6.40 0.00 0.00
4 0.0 25.0 6.87 0.00 6.90 429 16.6 15.4 6.75 6.65 6.68

43 4.7 11.6 6.86 6.20 6.62 360 17.8 15.0 6.73 6.77 6.74
25 20.0 12.0 6.75 6.72 6.93 0.0 0.0 6.40 0.00 0.00
4 0.0 25.0 6.90 0.00 6.60 433 16.4 14.5 6.75 6.75 6.73

119 RODIO Ramp Transport Driver 120 R0105 RTD 121 Total Ramp Transport Driver

1163 22.8
o 0.0
1163 22.8

15.9 0.0
15.9

6.72 0.00 6.72

6.68 0.00 6.68

6.68 0.00 6.68

1092
o
1092

22.5 0.0
22.5

15.6 0.0
15.6

6.79 0.00 6.79

6.73 0.00 6.73

6.81 0.00 6.81

1054 1054

22.2 0.0
22.2

15.7 0.0
15.7

6.79 0.00 6.79

6.74 0.00 6.74

6.72 0.00 6.72

122 ROeD2 Courier/DOT 123 R0006 Courier/Handler/DOT 124 RODIS Courier/Handler/Non-DOT 125 R0021 Courier/Non-Driver 126 R0037 Courier/Feeder Agt/DOT 127 ROOB5 Courier/Swing Drvr/CDL 12B ROOBB Courier/Non-DOT 129 R0092 Courier/Fdr Agt/Non-DOT 130 R0094 Courier/Handler DOT/COL 131 R0096 Courier/Dot/Cdl 132 R0099 Courier/Fdr Agt/DOT/CDL 134 ROIOB Courier/Ramp Agt/CDL 135 ROl09 Courier/Ramp Agt/DOT 136 Total Courier

6455 61 4 35
141 1134
205 2
36 987
72
9136

14.1 17.7 31.1 31.1
0.0 25.0 20.0 17.1
0.0 10.6 15.3 19.0
5.4 7.3 0.0 100.0 13.9 50.0 10.6 15.1 1.4 4.2 0.0 0.0 0.0 0.0 13.5 17.4

6.29 6.31 5.80 6.50 6.60 6.23 6.53 0.00 6.14 6.38 6.58 6.37 6.90 6. 31

6.02 5.89 0.00 5.93 0.00 5.94 6.05 0.00 5.44 6.13 6.80 0.00 0.00 6.01

6.14 6.08 6.80 5.82 6.28 6.02 6.14 6.30 5.85 6.34 6.63 0.00 0.00 6.14

6449 63
26 131 1127 223
1 35 931 70
2 9065

13.8 17.7 23.8 36.5 50.0 50.0 19.2 11.5
1.5 11.5 13.6 20.0 11.7 7.2
0.0 100.0 11.4 51.4
9.9 15.4 1.4 7.1 0.0 0.0 0.0 0.0 13.1 17.6

6.43 6.25 0.00 6.59 6.68 6.36 6.53 0.00 6.45 6.51 6.68 6.50 6.50 6.44

6.19 6.14 6.40 6.32 6.60 6.13 6.16 0.00 6.73 6.27 6.60 0.00 0.00 6.19

6.30 6.07 6.90 5.90 6.62 6.21 6.34 6.80 6.37 6.38 6.48 0.00 0.00 6.29

6308 52 1 23
138 1137
198
19 918
69
8867

13.7 18.0 21.2 30.8
0.0 100.0 26.1 4.3
2,9 11.6 14.3 20.2
8.1 7.1 0.0 100.0 15.8 57.9 10.1 1S.0 1.4 5.8 0.0 0.0 0.0 0.0 13.1 17.7

6.45 6.48 0.00 6.56 6.61 6.40 6.54 0.00 6.52 6.4B 6.70 0.00 0.00 6.46

6.26 6.05 0.00 6.30 6.47 6.20 6.24 0.00 6.53 6.29 6.60 0.00 0.00 6.26

6.35 6.21 6.50 6.50 6.70 6.28 6.31 7.00 6.50 6.34 6.60 0.00 0.00 6.35

137 R0069 Shuttle Driver/DOT 13B R0090 Shuttle Driver Non-DOT 139 R0093 Shuttle Driver/COL 140 Total Shuttle Driver

201 34.8 31.3 6.60 6.48 6.59 5 80.0 0.0 6.80 6.35 0.00
99 37.4 25.3 6.53 6.43 6.54 305 36.4 28.9 6.58 6.46 6.58

176 31.2 33.5 6.67 6.53 6.57 6 83.3 0.0 7.00 6.68 0.00
92 32.6 30.4 6.66 6.57 6.64 274 32.8 31.8 6.67 6.55 6.59

163 27.0 36.8 6.76 6.58 6.56 75.0 0.0 7.00 6.67 0.00
84 33.3 28.6 6.70 6.58 6.70 251 29.9 33.5 6.74 6.58 6.60

141 F0004 Service Agent/DOT 142 F0017 Service Agent/Non-DOT 143 F0022 Sr Service Agent/DOT 144 F0026 Sr Svc Agent/Non-DOT 146 F0095 Service Agent/Non-DOT 147 F009B Service Agent/Non-DOT/A 149 F0300 Svc Agt/Non-DOT/AGFS 150 F0301 Sr Svc Agt/DOT/AGFS 151 F0302 Sr Svc Agt/Non-DOT/AGFS 156 Total Customer Service Agent

0.0 241 20.3
7 0.0 1065 20.1
100.0 0.0 0.0 0.0
74 18.9 1391 20.0

0.0 25.3 14.3 14.3
0.0 0.0 0.0 0.0 10.8 16.0

6.40 6.04 6.68 6.60 0.00 0.00 6.05 0.00 6.74 6.54

0.00 5.68 0.00 6.38 5.80 0.00 0.00 0.00 6.58 6.27

0.00 5.86 7.00 6.47 0.00 0.00 0.00 0.00 6.93 6.32

50.0 145 17.2
13 7.7 1096 20.6
1 100.0 0.0 0.0 0.0
63 17.5 1322 20.0

0.0 22.8
7.7 15.9
0.0 0.0 0.0 0.0 12.7 16.3

6.60 6.15 6.69 6.66 0.00 0.00 5.85 0.00 6.82 6.62

6.80 5.94 6.40 6.41 5.80 0.00 0.00 0.00 6.70 6.38

0.00 5.97 7.00 6.53 0.00 0.00 0.00 0.00 6.86 6.46

0.0 70 18.6 19 10.5 1120 18.9
1 100.0 0.0 0.0 0.0
60 18.3 1277 1B.7

0.0 21.4
5.3 16.9
0.0 0.0 0.0 0.0 15.0 16.B

6.40 6.37 6.38 6.65 0.00 0.00 6.35 6.80 6.79 6.64

0.00 6.05 6.85 6.47 5.80 0.00 0.00 0.00 6.79 6.46

0.00 6.27 7.00 6.52 0.00 0.00 0.00 0.00 6.83 6.52

157 R004B Checker/Sorter 15B R0212 Sr Checker Sorter 1'59 Total Checker/Sorter

686 60.9 2 100.0
688 61.0

17.1 0.0
17.0

6.21 0.00 6.21

6.18 6.55 6.18

6.39 0.00 6.39

675 62.4 100.0
676 62.4

15.6 0.0
15.5

6.36 0.00 6.36

6.24 6.70 6.24

6.41 0.00 6.41

717 57.2 1 100.0
718 57.2

15.5 0.0
15.5

6.24 0.00 6.24

6.25 6.50 6.25

6.40 0.00 6.40

160 R0049 Material Handler 161 R0070 Sr Freight Handler 162 R0071 Frt Handler/Non-DOT (G) 163 R0072 Material Handler/DOT'" 164 R0075 Freight Handler/DOT (G) 165 R0097 Frt Handler/DOT/COL (G) 167 Total Material , Fr't Handler

1026 1
195
1226

41.8 19.6 0.0 100.0
30.8 18.5 33.3 0.0
0.0 0.0 0.0 0.0 40.0 19.4

6.28 0.00 6.57 6.25 7.00 0.00 6.33

6.24 0.00 6.55 6.60 0.00 0.00 6.28

6.27 6.80 6.63 0.00 0.00 0.00 6.33

1094 1
177
1273

40.9 17.6 0.0 100.0
29.4 20.3 0.0 0.0 0.0 0.0 0.0 0.0
39.2 18.0

6.39 0.00 6.66 6.90 0.00 0.00 6.43

6.30 0.00 6.62 0.00 0.00 0.00 6.33

6.43 6.80 6.70 0.00 0.00 0.00 6.47

1349 1
160
1513

37.5 19.9 0.0 100.0
28.8 18.1 0.0 33.3 0.0 0.0 0.0 0.0
36.5 19.8

6.32 0.00 6.67 6.35 0.00 0.00 6.36

6.33 0.00 6.71 0.00 0.00 0.00 6.36

6.41 6.80 6.69 6.80 0.00 0.00 6.44

168 R0003 Handler (DOT) 169 R0015 Handler (Non-DOT) 170 R006B Handler/Shuttle Dr/DOT 171 R0091 Hndlr/Shutl Drv/Non-DOT 172 R0095 Handler/Shuttle Drv/CDL 173 R0101 Handler DOT/COL 174 Total Handlers

50 1699
116 12 33
1911

38.0 43.6 25.9 25.0 36.4
0.0 42.1

12.0 15.7 22.4
8.3 15.2
0.0 15.9

6.27 6.18 6.18 6.16 6.61 6.90 6.19

6.15 5.86 6.42 6.43 6.09 0.00 5.90

5.93 6.10 6.01 5.60 6.22 0.00 6.09

61 23.0 1594 38.3
117 24.8 4 25.0
35 34.3 1 100.0
1812 36.8

16.4 18.9 23.1 25.0 17.1
0.0 19.1

6.39 6.24 6.46 6.40 6.72 0.00 6.27

6.26 6.01 6.43 5.00 6.66 6.60 6.05

6.44 6.25 6.29 6.50 6.38 0.00 6.26

65 18.5 1420 38.0
101 27.7 0.0
24 41.7 1 100.0
1613 36.6

20.0 16.1 24.8 50.0 12.5
0.0 16.8

6.54 6.18 6.60 7.00 6.74 0.00 6.24

6.69 6.08 6.55 0.00 6.73 6.60 6.13

6.56 6.27 6.38 6.50 6.80 0.00 6.30

175 F0206 5R TRACE REP 176 F02l0 Sr Trace Rep/OVergoods 177 F0320 Service Assurance Agent 17B ROOOI Dispatcher (DOT) 179 R0016 Dispatcher (Non-DOT) 1BO R0022 Operations Agent 1Bl R0047 Dangerous Goods Agent 182 R0079 TRUCK CONTROL AGENT 1B3 ROOB3 Team Leader/DOT lB4 ROOB4 DANG GOODS AGT/DOT lB5 ROllI Dispatcher 1BB R01l7 IntI Checker 1B9 R0200 IntI Export Checker 190 R0201 Teamleader 191 R0202 Information Agent 192 R0205 INPUT AUDITOR 193 R0206 Ramp Area Driver 194 R0211 IntI Import Checker 195 Total Other Hourly in Class

0.0 11 54.5 120 23.3
16.7 24912.0 109 38.5 148 24.3
58 63.8 0.0 0.0
49 26.5
o 0.0
30 56.7 431 42.2 114 34.2
75 70.7 0.0
67 47.8 1470 35.1

0.0 18.2 10.0 16.7 11. 2
8.3 22.3 17.2
0.0 0.0 12.2 0.0 16.7 13.0 14.0 9.3 0.0 9.0 13.0

0.00 6.00 6.80 5.73 6.37 6.19 6.45 6.50 0.00 5.90 6.84 0.00 6.28 6.68 6.48 6.61 6.45 6.75 6.53

0.00 6.80 6.67 6.90 6.17 6.31 6.41 6.49 0.00 0.00 6.72 0.00 6.27 6.58 6.56 6.23 0.00 6.42 6.47

0.00 6.75 6.69 6.10 6.21 6.36 6.53 6.69 0.00 0.00 6.83 0.00 6.80 6.70 6.51 6.60 0.00 6.67 6.56

11 164
5 254
88 175
55
40
o
32 375 126
37 1
71 1441

0.0 54.5 22.6 20.0 13.0 37.5 22.9 63.6
0.0 0.0 27.5 0.0 53.1 40.5 34.9 48.6 0.0 50.7 32.1

0.0 18.2 11.0
0.0 11.8 11.4 19.4 18.2
0.0 0.0 12.5 0.0 21. 9 13.3 16.7 13.5 0.0 9.9 13.8

6.10 6.80 6.88 6.85 6.56 6.49 6.46 6.70 6.60 6.25 6.88 0.00 6.32 6.66 6.70 6.66 6.20 6.70 6.64

0.00 6.85 6.75 7.00 6.22 6.43 6.44 6.63 0.00 0.00 6.87 0.00 6.32 6.67 6.53 6.26 0.00 6.41 6.55

0.00 6. B5 6.72 0.00 6.40 6.77 6.64 6.70 0.00 0.00 6.90 0.00 6.76 6.72 6.53 6.34 0.00 6.64 6.63

1 100.0 8 50.0 152 21.1 1 100.0 252 13.1 72 41.7 171 22.8 59 62.7 1 100.0 3 0.0 36 25.0
0.0 20 60.0 335 40.6 135 34.8 28 57.1
0.0 78 43.6 1352 32.0

0.0 25.0
7.9 0.0 11.1 9.7 17.0 15.3 0.0 0.0 13.9 0.0 20.0 14.9 15.6 14.3 0.0 10.3 13.2

0.00 0.00 6.86 0.00 6.55 6.54 6.58 6.66 0.00 6.57 6.89 0.00 0.00 6.68 6.61 6.86 0.00 6.43 6.65

6.40 6.65 6.82 7.00 6.22 6.48 6.42 6.52 7.00 0.00 6.80 0.00 6.44 6.72 6.56 6.43 0.00 6.37 6.57

0.00 6.20 6.88 0.00 6.34 6.66 6.61 6.44 0.00 0.00 6.B8 0.00 6.75 6.69 6.52 6.70 0.00 6.72 6.60

Case 3:03-cv-02659 Document 621

Filed 01/19/2007 Page 15 of 20

Appendix 13a

Page 3

Average Performance Ratings

by Year, Race, Jobs

Total

Restricted to peraons with positive S/Hr, Active at Year-End, with Perf Ratings Restricted to Hourly Employees

2003

2004

2005

Nbr EEEs

Ave Perf Rate

Nbr EEEs

Ave Perf Rate

Nbr EEEs

Ave Perf Rate

JobCd

Job Title

Total 'Blk 'Sisp wht Blk Hisp Total 'Blk IHisp wht Blk Hisp Total %Blk 1.fHsp Wht Elk Hisp

18 B1427 Hgr Hub Opo 33 82549 Mgr Station Ops/COL III Total Operations Manager
112 R0009 Ramp Agent/Trunk/DOT 113 R0019 Ramp Agt-Trunk(Non-DOT) 114 ROlOD Ramp Agt Trunk DOT/COL 115 R0102 Ramp Agt/Feeder/DOT/CDL 116 ROI03 Ramp Agt/Feeder/Non-DOT 118 Total Ramp Agent

100.0 0.0
100.0

0.0 0.00 2.60 0.00 0.0 0.00 0.00 0.00 0.0 0.00 2.60 0.00

42 7.1 9.5 6.79 6.00 6.65 365 18.1 14.5 6.78 6.72 6.72
20 20.0 10.0 6.85 6.75 6.75 0.0 0.0 7.00 0.00 0.00 0.0 33.3 7.00 0.00 7.00
432 16.9 13.9 6.79 6.69 6.72

0.0 0.0 0.00 0.00 0.00 0.0 0.0 0.00 0.00 0.00 0.0 0.0 0.00 0.00 0.00
37 8.1 10.8 6.87 5.97 6.60 381 18.6 16.5 6.73 6.75 6.69
17 29.4 11.8 6.83 6.42 6.85 0.0 0.0 6.75 0.00 0.00 0.0 25.0 6.50 0.00 7.00
441 17.9 15.9 6.75 6.70 6.69

0.0 0.0 0.00 0.00 0.00 0.0 0.0 0.00 0.00 0.00 0.0 0.0 0.00 0.00 0.00
26 3.8 7.7 6.88 6.50 6.85 396 17.4 19.2 6.74 6.67 6.74
23 17.4 8.7 6.71 6.72 6.95 1 0.0 0.0 6.60 0.00 0.00 0.0 25.0 6.90 0.00 6.90
450 16.4 18.0 6.75 6.67 6.75

119 RODIO Ramp Transport Driver 120 R0105 RTD 121 Total Ramp Transport Driver

1022 21.3
o 0.0
1022 21.3

16.4 0.0
16.4

6.78 0.00 6.78

6.75 0.00 6.75

6.73 0.00 6.73

1036 21.4
o 0.0
1036 21.4

17.0 0.0
17.0

6.75 0.00 6.75

6.74 0.00 6.74

6.69 0.00 6.69

1055 1055

22.2 0.0
22.2

16.6 0.0
16.6

6.77 0.00 6.77

6.68 0.00 6.68

6.69 0.00 6.69

122 R0002 Courier/DOT 123 R0006 Courier/Handler/DOT 124 ROOIS courier/Handler/Non-DOT 125 R0021 Courier/Non-Driver 126 R0037 Courier/Feeder Agt/oOT 127 RODeS Courier/Swing Drvr/cDL 128 ROOBS Courier/Non-DOT 129 R0092 Courier/Fdr Agt/Non-DOT 130 R0094 courier/Handler OOT/CDL 131 R0096 Courier/Dot/Cdl 132 R0099 Courier/Fdr Agt/DOT/CDL 134 RtJ108 Courier/Ramp Agt/CDL 135 R0109 Courier/Ramp Agt/DOT 136 Total Courier

6393 49 1 17
137 1187
177
23 902
75 8
8969

13.5 18.1 22.4 30.6
0.0 100.0 29.4 5.9
2.2 10.9 14.9 20.6
4.5 6.2 0.0 0.0 8.7 52.2 9.8 16.5 0.0 4.0 0.0 0.0 0.0 0.0 12.9 17.9

6.39 6.48 0.00 6.72 6.58 6.45 6.54 0.00 6.47 6.45 6.59 6.50 0.00 6.42

6.22 6.16 0.00 6.30 6.87 6.14 6.26 0.00 6.70 6.09 0.00 0.00 0.00 6.20

6.29 6.18 6.70 6.30 6.44 6.23 6.19 0.00 6.34 6.34 6.53 0.00 0.00 6.29

6482 45 2 17
138 1215
160 1
23 749
71
8911

13.5 17.8
0.0 35.3
2.2 15.2
4.4 0.0 13.0 10.3 0.0 0.0 0.0 13.0

18.3 22.2 50.0
5.9 12.3 22.4
8.1 0.0 52.2 16.0 5.6 0.0 0.0 18.3

6.38 6.38 5.20 6.72 6.58 6.42 6.52 7.00 6.37 6.47 6.50 6.51 0.00 6.41

6.19 6.06 0.00 6.37 6.97 6.18 6.19 0.00 6.07 6.14 0.00 0.00 0.00 6.18

6.30 6.04 6.90 6.60 6.49 6.28 6.30 0.00 6.38 6.36 6.67 0.00 0.00 6.31

6650 91 3 15
136 1244
147 1
21 652
79 7
9046

13.3 11. 0
0.0 33.3
0.7 14 .1
5.4 0.0 9.5 8.3 0.0 0.0 0.0 12.6

19.4 23.1 33.3
6.7 13.2 20.7
8.2 0.0 42.9 15.6 5.1 0.0 0.0 19.0

6.35 6.03 6.05 6.84 6.63 6.35 6.45 6.80 6.39 6.44 6.54 6.25 0.00 6.37

6.15 6.01 0.00 6.56 6.90 6.09 6.34 0.00 6.00 6.30 0.00 0.00 0.00 6.15

6.25 5.94 6.90 6.60 6.42 6.18 6.23 0.00 6.63 6.23 6.70 0.00 0.00 6.24

137 R0069 Shuttle Driver/DOT 138 R0090 Shuttle Driver Non-OOT 139 R0093 Shuttle Driver/CDL 140 Total Shuttle Driver

169 26.6 35.5 6.69 6.56 6.62 4 75.0 0.0 6.80 6.13 0.00
75 26.7 30.7 6.66 6.66 6.66 248 27.4 33.5 6.68 6.57 6.63

179 28.5 100.0
89 27.0 270 28.5

35.2 0.0
36.0 35.2

6.69 0.00 6.40 6.58

6.57 6.05 6.64 6.58

6.54 0.00 6.49 6.52

165 28.5 35.2 6.72 6.50 6.60 2 50.0 0.0 7.00 6.70 0.00
89 25.8 36.0 6.31 6.52 6.62 256 27.7 35.2 6.55 6.51 6.61

141 F0004 Service Agent/DOT 142 F0017 Service Agent/Non-DOT 143 F0022 Sr Service Agent/DOT 144 F0026 Sr Svc Agent/Non-DOT 146 F0095 Service Agent/Non-DOT 147 F0098 Service Aqent/Non-DOT/A 149 F0300 Svc Agt/Non-DOT/AGFS 150 F0301 Sr SVc Agt/DOT/AGFS 151 F0302 Sr SVc Agt/Non-DOT/AGFS 156 Total Customer Service Agent

5 0.0 126 15.9
17 11.8 1101 18.4
100.0 0.0
25.0 0.0
55 21. 8 1310 18.2

0.0 18.3
5.9 16.7
0.0 0.0 50.0 0.0 18.2 16.8

6.15 6.24 6.57 6.64 0.00 0.00 4.00 6.60 6.78 6.60

0.00 6.03 6.75 6.41 5.80 0.00 6.80 0.00 6.72 6.39

0.00 6.06 7.00 6.50 0.00 0.00 6.45 0.00 6.83 6.47

3 0.0 121 17.4
15 0.0 998 18.7
1 100.0 0.0
16.7 0.0
67 20.9 1212 18.5

0.0 20.7
6.7 17.2
0.0 0.0 33.3 0.0 25.4 17.9

6.45 6.28 6.75 6.66 0.00 0.00 6.60 6.80 6.75 6.63

0.00 6.32 0.00 6.48 5.80 0.00 5.00 0.00 6.63 6.46

0.00 6.18 7.00 6.52 0.00 0.00 6.05 0.00 6.56 6.48

0.0 110 17.3
15 0.0 858 17.2
1 100.0 0.0
100.0 0.0
79 29.1 1067 18.0

0.0 17.3
6.7 17.5
0.0 0.0 0.0 0.0 22.8 17.6

6.50 6.14 6.76 6.67 0.00 0.00 0.00 7.00 6.72 6.63

0.00 5.96 0.00 6.51 5.80 0.00 6.60 0.00 6.52 6.46

0.00 6.40 6.90 6.53 0.00 0.00 0.00 0.00 6.51 6.52

157 R0048 Checker/Sorter 158 R0212 Sr Checker Sorter 159 Total Checker/Sorter

742 54.3 1 100.0
743 54.4

14.7 0.0
14.7

6.34 0.00 6.34

6.25 5.60 6.24

6.40 0.00 6.40

720 56.0 14.9 6.27 6.21 6.25 1 0.0 0.0 6.00 0.00 0.00
721 55.9 14.8 6.27 6.21 6.25

757 57.6
o 0.0
757 57.6

17.0 0.0
17.0

6.20 0.00 6.20

6.14 0.00 6.14

6.30 0.00 6.30

160 R0049 Material Handler 161 R0070 Sr Freight Handler 162 R0071 Frt RandIer/Non-DOT (G) 163 R0072 Material Handler/DOT· 164 R0075 Freight Handler/DOT (G) 165 R0097 Frt Hand1er/DOT/CDL (G) 167 Total Material & Fr't Handler

1486 1
143 2
1632

33.2 19.3 0.0 100.0
28.7 18.2 0.0 50.0 0.0 0.0 0.0 0.0
32.8 19.3

6.34 0.00 6.65 6.70 0.00 0.00 6.37

6.36 0.00 6.61 0.00 0.00 0.00 6.38

6.39 6.80 6.72 6.60 0.00 0.00 6.42

1469 1
122
1592

34.5 20.1 0.0 100.0
25.4 18.9 0.0 0.0 0.0 0.0 0.0 0.0
33.8 20.1

6.35 0.00 6.63 0.00 0.00 0.00 6.38

6.33 0.00 6.64 0.00 0.00 0.00 6.35

6.34 6.80 6.76 0.00 0.00 0.00 6.37

1568 1
110 2
1681

34.1 19.6 0.0 100.0
23.6 22.7 0.0 0.0 0.0 0.0 0.0 0.0
33.4 19.9

6.33 0.00 6.43 6.20 0.00 0.00 6.33

6.33 0.00 6.70 0.00 0.00 0.00 6.35

6.40 6.80 6.73 0.00 0.00 0.00 6.42

168 R0003 Handler (DOT) 169 R0015 Handler (Non-DOT} 170 R0068 Handler/Shuttle Dr/DOT 171 R0091 HndlrlShutl Drv/Non-DOT 172 R0095 Handler/Shuttle Drv/CDL 173 R0101 Handler DOT/CDL 174 Total Handlers

89 1338
103 2
22
1554

23.6 37.0 30.1
0.0 36.4
0.0 35.7

19.1 18.2 26.2 50.0 22.7
0.0 18.9

6.45 6.26 6.61 6.90 6.45 0.00 6.31

6.45 6.05 6.33 0.00 6.70 0.00 6.09

6.51 6.24 6.36 6.50 6.70 0.00 6.27

82 1442
87 2
19 3
1635

20.7 33.4 26.4
0.0 42.1 66.7
n.5

22.0 17.8 26.4 50.0 15.8 33.3 18.5

6.45 6.22 6.53 7.00 6.42 0.00 6.26

6.69
6. as
6.60 0.00 6.69 5.85 6.11

6.39 6.29 6.56 6.40 6.87 6.10 6.32

90 1601
84 1
25 6
1807

24.4 29.7 27.4
0.0 44.0 50.0 29.6

32.2 20.0 34.5
0.0 16.0 16.7 21. 2

6.44 6.13 6.21 7.00 6.56 6.60 6.16

6.52 6.08 6.38 0.00 6.51 6.40 6.13

6.43 6.28 6.50 0.00 6.75 6.10 6.31

175 F0206 SR TRACE REP 176 F0210 Sr Trace Rep/Overgoods 177 F0320 Service Assurance Agent 178 ROOOI Dispatcher (DOT) 179 R0016 Dispatche:c (Non-DOT) 180 R0022 Operations Agent 181 R0047 Dangerous Goods Agent 182 RO 079 TRUCK CONTROL AGENT 183 R0083 Team Leader/DOl!' 184 R0084 DANG GOODS AGT/DOT 185 R011l Dispatcher 188 ROl17 IntI Checker 189 R0200 IntI Export Checker 190 R0201 Teamleader 191 R0202 Information Agent 192 R0205 INPUT AUDITOR 193 R0206 Ramp Area Driver 194 R0211 IntI Impo:ct Checker 195 Total Other Hourly in Class

1 100.0 0.0 9 55.6 22.2 150 20.7 8.7 1 0.0 100.0 259 14.3 10.0 75 33.3 12.0 179 24.6 15.1 50 62.0 18.0
50.0 0.0 0.0 0.0
34 23.5 14.7
o 0.0 0.0
22 68.2 18.2 329 44.4 14.6 140 36.4 12.1
25 60.0 l2.0 0.0 0.0
79 35.4 8.9 1356 32.3 12.6

0.00 0.00 6.85 0.00 6.49 6.38 6.46 6.58 6.70 6.50 6.83 0.00 0.00 6.68 6.50 6.53 0.00 6.59 6.59

6.30 6.76 6.66 0.00 6.19 6.63 6.46 6.54 7.00 0.00 6.94 0.00 6.48 6.71 6.63 6.39 0.00 6.40 6.58

0.00 6.65 6.78 6.50 6.32 6.32 6.60 6.54 0.00 0.00 6.80 0.00 6.82 6.67 6.59 6.80 0.00 6.43 6.58

50.0 10 60.0 133 18.0
2 0.0 260 12.7
94 31.9 200 22.5
55 58.2 100.0 0.0
33 21.2 101 41.6
1 0.0 313 42.8 147 40.1
25 64.0 0.0 0.0
1378 31. 2

0.0 20.0 13.5 50.0 I!. 9 12.8 16.0 14.5
0.0 0.0 15.2
12.9 0.0
14.7 13.6 l2.0
0.0 0.0 13.9

6.50 0.00 6.83 7.00 6.53 6.59 6.46 6.16 0.00 6.80 6.89 6.72 0.00 6.63 6.60 6.53 0.00 0.00 6.60

6.60 6.75 6.79 0.00 6.30 6.60 6.45 6.62 7.00 0.00 6.74 6.35 0.00 6.66 6.58 6.36 0.00 0.00 6.56

0.00 7.00 6.70 6.30 6.26 6.54 6.54 6.38 0.00 0.00 6.86 6.61 0.00 6.70 6.46 6.73 0.00 0.00 6.55

12 143
1 273
88 196
52
1 31 III
o
319 146
24
o o
1399

50.0 50.0 18.9
0.0 12.8 29.5 27.6 53.8
0.0 0.0 22.6 39.6 0.0 43.3 39.7 75.0 0.0 0.0 31.6

0.0 25.0 14.0
0.0 12.8 17.0 15.8 15.4
0.0 0.0 16.1 13.5 0.0 13.8 13.7 12.5 0.0 0.0 14.2

6.30 7.00 6.81 7.00 6.49 6.60 6.58 6.50 0.00 6.60 6.92 6.58 0.00 6.58 6.51 6.90 0.00 0.00 6.59

6.70 6.90 6.79 0.00 5.99 6.65 6.47 6.64 0.00 0.00 6.76 6.36 0.00 6.64 6.54 6.54 0.00 0.00 6.54

0.00 7.00 6.80 0.00 6.19 6.53 6.63 6.61 0.00 0.00 6.76 6.55 0.00 6.72 6.66 6.03 0.00 0.00 6.58

Case 3:03-cv-02659 Document 621

Filed 01/19/2007 Page 16 of 20

Appendix 13b

Page 1

Perm Test Dependent Variable = Overall Perf Rating Score (OLPA record)
Controlling for Year, PerfRev Type (1st 4 byte), PerfRev Type (full 6 byte code), Mgr performing review
Black v White

Summary of Permutation Test (Group-nonGroup)

Input file

'/export/data/dkfedex/OLPREXT_DOl1806.1.0LPA.6a.bw'

Par file

= 'perm.12l.par'

Control Fields = 22/25 16/19

16/21

50/55

Dependent Variable Field:

92/93

Total
-----

Group
------

-

-

-

%
----

-

-

-

-

-

disp.
-------

--

-

-

-

-

std.dev.
----------

-

-

-I

-

-

--

Z
--

-

-

-

ICtr
----

Flds
-----

-

-

-

-

-

--

12668 2637 20.8

-6456.39

533.42 I -12.10 1997/COUR

144 48 33.3

-50.77

91. 60 I -0.55 1997/CSRO

227 44 19.4

-49.40

29.03 I -1.70 1997/RAOO

874 230 26.3

-221.40

76.54 I -2.89 1997/RTDO

594 165 27.8

-296.82

78.03 I -3.80 1997/SAOO

Total:

-7074.78

552.92 I -12.80 1997

13468 2735

218 90

471

98

1146 296

1899 546

Total:

20.3 41.3 20.8 25.8 28.8

-5817.72 -306.92 -72.01 -155.40
-1091. 18 -7443.23

663.31 103.29
43.94 86.40 210.92 710.31

-8.77 -2.97 -1. 64 -1. 80 -5.17 -10.48

1998/COUR 1998/CSRO 1998/RAOO 1998/RTDO 1998/SAOO 1998

57

9

13349 2569

223

81

75

11

489 105

1204 320

1911 519

Total:

15.8 19.2 36.3 14.7 21.5 26.6 27.2

-4.00 -4949.61
-92.80 -11.00
17.75 -231. 85 -486.41 -5757.91

6.32 477.90
95.74 5.97
48.68 90.29 188.35 532.57

-0.63 -10.36
-0.97 -1.84
0.36 -2.57 -2.58 -10.81

1999/AGFS 1999/COUR 1999/CSRO 1999/DISP 1999/RAOO 1999/RTDO 1999/SAOO 1999

114 26 13226 2468
178 71 475 78 2343 1448 444 251 500 117 1335 389 1987 543
Total:

22.8 18.7 39.9 16.4 61.8 56.5 23.4 29.1 27.3

13.00 -4157.00
-147.27 -144.34 -1374.26 -116.63
-58.96 -263.47 -826.40 -7075.35

25.96 469.67
67.44 44.98 316.27 61.19 37.07 97.50 182.26 612.95

0.50 -8.85 -2.18 -3.21 -4.35 -1. 91 -1.59 -2.70 -4.53 -11. 54

2000/AGFS 2000/COUR 2000/CSRO 2000/DISP 2000/HAND 2000/IPPO 2000/RAOO 2000/RTDO 2000/SADO 2000

97 12395
140 488 5052 1514
1 558 1635 1776 197 377

22 2227
58 89 3198 838
1 133 481 474
60 206

22.7 18.0 41.4 18.2 63.3 55.4 100.0 23.8 29.4 26.7 30.5 54.6

20.00 -2713.49
-17.54 -113.95 -3421.70 -393.84
0.00 -89.83 -408.41 -544.93 -23.67 -57.08

11.14 337.85
64.01 56.41 697.68 179.90
0.00 65.05 95.61 170.98 12.99 58.45

1. 80 -8.03 -0.27 -2.02 -4.90 -2.19
0.00 -1.38 -4.27 -3.19 -1. 82 -0.98

2001/A'GFS 2001/COUR 2001/CSRO 2001/DISP 2001/HAND 2001/IPPO 2001/0PSO 2001/RAOO 2001/RTDO 2001/SADO 2001/SAA"O 2001/TEAM

Case 3: 03-cv-02659 Document 621

Filed 01/19/2007 Page 17 of20

1

0 0.0

Total:

52

11

5630 972

128

46

240

45

3294 1931

898 461

1

1

358

78

743 215

1068 276

151

46

317 169

8

7

Total:

21.2 17.3 35.9 18.8 58.6 51.3 100.0 21.8 28.9 25.8 30.5 53.3 87.5

37

13

8253 1402

96

35

312

58

3131 1704

648 314

1

1

315

66

709 203

875 210

119

27

245 129

2

2

13

8

Total:

35.1 17.0 36.5 18.6 54.4 48.5 100.0 21.0 28.6 24.0 22.7 52.7 100.0 61.5

35

10

6291 1071

68

34

232

39

3234 1813

712 343

298

68

695 197

899 214

112

27

234 142

1

1

16 12

Total:

28.6 17.0 50.0 16.8 56.1 48.2 22.8 28.3 23.8 24.1 60.7 100.0 75.0

48

23

6587 1099

67

31

234

43

3518 1920

712 371

3

2

291

75

716 203

720 150

93

21

220 130

2

1

14

11

Total:

47.9 16.7 46.3 18.4 54.6 52.1 66.7 25.8 28.4 20.8 22.6 59.1 50.0 78.6

0.00 -7764.45
3.00 -808.15 -106.50
-62.08 -997.25 -133.27
0.00 24.06 -175.73 -161.50 -8.00 25.00
7.00 -2393.41
-4.50 -1501.00
-41. 58 -140.96 -1111.43
-94.57 0.00
12.65 -94.72 -220.49
-3.50 2.33 0.00
-1. 00 -3198.77
2.00 -836.60 -102.83 -107.20 -1555.36
10.19 -9.24 -44.69 -237.28
1. 67 42.67
0.00 0.00 -2836.68
-49.00 -1011.19
-102.17 -146.71 -1836.63 -240.25
0.00 -58.15 -117.70 -118.35
-5.00 -24.17
0.00 15.00 -3694.33

Appendix 13b

0.00 828.77

0.00 -9.37

3.00 125.23
43.03 24.85 377.55 61.53
0.00 21.44 51. 04 85.12
5.10 12.94
7.00 418.38

1. 00 -6.45 -2.47 -2.50 -2.64 -2.17
0.00 1.12 -3.44 -1.90 -1. 57 1. 93 1. 00 -5.72

3.54 249.39
29.27 42.98 449.43 62.96
0.00 21. 84 44.08 97.51
2.55 16.42
0.00 2.12 532.05

-1.27 -6.02 -1. 42 -3.28 -2.47 -1.50
0.00 0.58 -2.15 -2.26 -1. 37 0.14 0.00 -0.47 -6.01

5.83 228.85
76.89 55.43 527.44 85.14 22.23 41. 79 107.97
4.65 26.57
0.00 7.14 601. 26

0.34 -3.66 -1.34 -1.93 -2.95
0.12 -0.42 -1.07 -2.20
0.36 1. 61 0.00 0.00 -4.72

27.16 273.98
37.85 29.52 572.28 101. 04
0.00 54.82 47.65 59.09
4.24 34.34
0.00 15.97 "652.72

-1. 80 -3.69 -2.70 -4.97 -3.21 -2.38
0.00 -1.06 -2.47 -2.00 -1.18 -0.70
0.00 0.94 -5.66

2001/TRCO 2001
2002/AGFS 2002/COUR 2002/CSRO 2002/DISP 2002/HAND 2002/IPPO 2002/0PSO 2002/RAOO 2002/RTDO 2002/SAOO 2002/SAAO 2002/TEAM 2002/WROO 2002
2003/AGFS 2003/COUR 2003/CSRO 2003/DISP 2003/HAND 2003/IPPO 2003/0PSO 2003/RAOO 2003/RTDO 2003/SAOO 2003/SAAO 2003/TEAM 2003/TRCO 2003/WROO 2003
2004/AGFS 2004/COUR 2004/CSRO 2004/DISP 2004/HAND 2004/IPPO 2004/RAOO 2004/RTDO 2004/SAOO 2004/SAAO 2004/TEAM 2004/TRCO 2004/WROO 2004
2005/AGFS 2005/COUR 2005/CSRO 2005/DISP 2005/HAND 2005/IPPO 2005/MECH 2005/RAOO 2005/RTDO 2005/SAOO 2005/SAAO 2005/TEAM 2005/TRCO 2005/WROO 2005

Page 2

Case 3:03-cv-02659 Document 621

Filed 01/19/2007 Page 18 of 20

Appendix 13b

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Grand Total:

-47238.91 I

1844.48 I -25.61 I

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Page 3

Case 3:03-cv-02659 Document 621

Filed 01/19/2007 Page 19 of20

Appendix 13c

Page 1

Perm Test Dependent Variable = Overall Perf Rating Score (OLPA record)
Controlling for Year, PerfRev Type (1st 4 byte), PerfRev Type (full 6 byte code), Mgr performing review
Latino v White

Summary of Permutation Test (Group-nonGroup)

Input file

'/export/data/dkfedex/OLPREXT_DOl1806.1.0LPA.6a.hw'

Par file

= 'perm.131.par'

Control Fields = 22/25 16/19

16/21

50/55

Dependent Variable Field:

92/93

Total Group

%

disp. I std.dev.

Z ICtr Flds

--------------------------------------------------------------------------

12547 2516 20.1

-3267.85 I

485.65

-6.73 1997/COUR

119

23 19.3

7.50 I

76.18

0.10 1997/CSRO

207

24 11.6

-10.13 I

22.37

-0.45 1997/RAOO

762 118 15.5

-90.81 I

48.91

-1. 86 1997/RTDO

532 103 19.4

5.69 I

65.68

0.09 1997/SAOO

Total:

-3355.61 I

498.86

-6.73 1997

13568 2835

163

35

440

67

1062 212

1736 383

Total:

20.9 21.5 15.2 20.0 22.1

-3879.69 -183.43 -29.38 -218.92 -634.46
-4945.88

585.94 56.32 29.53 74.66
157.15 614.53

-6.62 -3.26 -0.99 -2.93 -4.04 -8.05

1998/COUR 1998/CSRO 1998/RAOO 1998/RTDO 1998/SAOO 1998

57

9

13579 2799

181

39

72

8

464

80

1121 237

1765 373

Total:

15.8 20.6 21.5 11.1 17.2 21.1 21.1

-4.00 -2514.37
-63.75 -9.10
-31.82 -68.83 -481. 50 -3173.38

3.16 468.69
63.82 13.32 33.47 68.63 144.63 500.68

-1.26 -5.36 -1. 00 -0.68 -0.95 -1. 00 -3.33 -6.34

1999/AGFS 1999/COUR 1999/CSRO 1999/DISP 1999/RAOO 1999/RTDO 1999/SAOO 1999

107

19

13796 3038

150 43

460

63

1478 583

298 105

492 109

1231 285

1888 444

Total:

17.8 22.0 28.7 13.7 39.4 35.2 22.2 23.2 23.5

3.50 -2261.05
-85.80 -62.39 -47.61 -75.80 -142.28 -221. 80 -972.88 -3866.11

6.49 490.82
49.71 30.93 142.81 52.64 41. 46 68.97 176.92 552.55

0.54 -4.61 -1. 73 -2.02 -0.33 -1.44 -3.43 -3.22 -5.50 -7.00

2000/AGFS 2000/COUR 2000/CSRO 2000/DISP 2000/HAND 2000/IPPO 2000/RAOO 2000/RTDO 2000/SAOO 2000

91 13204
130 469 3155 1160 541 1485 1722 164 238
1

16 3036
48 70 1301 484 116 331 420 27 67
0

17.6 23.0 36.9 14 .9 41.2 41.7 21.4 22.3 24.4 16.5 28.2
0.0

20.17 -2108.30
-0.13 -60.67 -322.46 -147.68 -26.53 -56.86 -561.75 -17.67 -17.25
0.00

13 .47 410.19
62.40 32.86 253.13 131. 50 32.01 70.66 125.57 12.48 21. 36 {l.00

1.50 -5.14 -0.00 -1. 85 -1.27 -1.12 -0.83 -0.80 -4.47 -1.42 -0.81
0.00

2001/AGFS 2001/COUR 2001/CSRO 2001/DISP 2001/HAND 2001/IPPO 2001/RAOO 2001/RTDO 2001/SAOO 2001/SAAO 2001/TEAM 2001/TRCO

Case 3:03-cv-02659 Document 621

Filed 01/19/2007 Page 20 of 20

Total:

-3299.12

Appendix 13c

526.47

-6.27

2001

49

8

5977 1319

125

43

232

37

2191 828

729 292

359

79

672 144

1030 238

124

19

208

60

1

0

Total:

16.3 22.1 34.4 15.9 37.8 40.1 22.0 21.4 23.1 15.3 28.8
0.0

4.00 -554.63
-77.17 -16.10 231. 96 -44.63
13.95 -2.05 -185.48
2.00 -5.50
0.00 -633.65

3.16 180.09
40.91 19.46 170.79 40.90 16.88 39.15 62.91
1.41 4.53 0.00 266.71

1. 26 -3.08 -1.89 -0.83
1.36 -1. 09
0.83 -0.05 -2.95
1. 41 -1.21
0.00 -2.38

2002/AGFS 2002/COUR 2002/CSRO 2002/DISP 2002/HAND 2002/IPPO 2002/RAOO 2002/RTDO 2002/SAOO 2002/SAAO 2002/TEAM 2002/WROO 2002

34

10

8822 1971

93

32

298

44

2213 786

544 210

302

53

658 152

868 203

105

13

159

43

6

1

Total:

29.4 22.3 34.4 14 .8 35.5 38.6 17.5 23.1 23.4 12.4 27.0 16.7

9.00 -1307.44
-60.37 -83.08 -301.98 -111.03 -40.97 -26.17 -191. 49
-1.00 -12.83
0.00 -2127.37

6.71 275.73
35.22 30.55 204.57 62.13 22.30 31. 57 87.19
1.00 13.47
0.00 365.02

1.34 -4.74 -1.71 -2.72 -1. 48 -1.79 -1. 84 -0.83 -2.20 -1. 00 -0.95
0.00 -5.83

2003/AGFS 2003/COUR 2003/CSRO 2003/DISP 2003/HAND 2003/IPPO 2003/RAOO 2003/RTDO 2003/SAOO 2003/SAAO 2003/TEAM 2003/WROO 2003

38

13

6791 1571

51

17

222

29

2298 877

620 251

289

59

653 155

884 199

98

13

136

44

5

1

Total:

34.2 23.1 33.3 13 .1 38.2 40.5 20.4 23.7 22.5 13.3 32.4 20.0

1. 00 -226.40
16.17 -50.31 -30.32 -44.33 -16.47 -89.26 -216.77
0.33 6.50 -1. 00 -650.87

2.55 270.23
31.28 20.36 235.21 77.89 22.04 41.19 83.52
3.28 10.30
1.00 380.91

0.39 -0.84
0.52 -2.47 -0.13 -0.57 -0.75 -2.17 -2.60
0.10 0.63 -1. 00 -1.71

2004/AGFS 2004/COUR 2004/CSRO 2004/DISP 2004/HAND 2004/IPPO 2004/RAOO 2004/RTDO 2004/SAOO 2004/SAAO 2004/TEAM 2004/WROO 2004

44

19

7206 1718

54

18

230

39

2663 1065

601 260

1

0

286

70

676 163

751 181

89

17

128

38

1

0

3

0

Total:

43.2 23.8 33.3 17.0 40.0 43.3
0.0 24.5 24.1 24.1 19.1 29.7
0.0 0.0

-31. 00 -877.23
-10.00 -74.39 -42.43
37.42 0.00
-6.14 -50.41 -302.53
14.00 14.50
0.00 0.00 -1328.21

33.94 341.60
28.64 27.91 274.29 121. 04
0.00 30.67 39.10 70.97 12.29 11. 06
0.00 0.00 465.95

-0.91 -2.57 -0.35 -2.67 -0.15
0.31 0.00 -0.20 -1.29 -4.26 1.14 1. 31 0.00 0.00 -2.85

2005/AGFS 2005/COUR 2005/CSRO 2005/DISP 2005/HAND 2005/IPPO 2005/MECH 2005/RAOO 2005/RTDO 2005/SAOO 2005/SAAO 2005/TEAM 2005/TRCO 2005/WROO 2005

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Grand Total:

-23380.20 I

1423.46 I -16.42 I

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Page 2

 
 Case 3:03-cv-02878 Document 214-6 Filed 01/19/2007 Page 1 of 7
,
, ,
, "
EXHIBITE

Case 3:03-cv-02878 Document 214-6 Filed 01/19/2007 Page 2 of 7
EXPERT REPORT OF ANTHONY G. GREENWALD Derrick Satchell et al. v. FedEx Express Anthony G, Greenwald, Ph,D,
o..G.~
September 3, 2006

Case 3:03-cv-02878 Document 214-6 Filed 01/19/2007 Page 3 of 7

Greenwald, 3 Sep 06 Report -11-

II. Baker's assumption that own-race managers provide guaranteed non-

discriminatory evaluations is empirically and theoretically unsubstantiated

i

5. Gold standard assumption. Dr. Baker's conclusion that lower ratings of Black

I

employees reflect poorer performance, rather than discrimination, rests on an unstated

assumption for which she provided no supporting evidence - that Blacks cannot be

biased against Blacks. If one assumes that Blacks are unbiased in evaluating other

Blacks, it does indeed follow that, if Black managers rate Black employees lower than

White employees, then those Black employees must on average be objectively inferior

and, accordingly, they deserve more disciplinary actions and lower performance ratings.

This reasoning implies that, although it is possible for White managers to be biased

against Black employees, it is not possible for Black managers to be biased against

their own race. This assumption in effect takes the judgments of Black employees by

Black managers as an objective criterion, a gold standard, against which judgments of

Black employees by any others can appraised for bias.

6. Evidence for own-race bias. The lack of eviden ce in Dr. Baker's report for the gOld-standard assumption is not in itself evidence against that assumption. There is not much evidence bearing either wayan the validity of this assumption in personnel decision-making in organizational settings. An obvious reason for the limited evid~nce is that a ,conclusion of presence or absence of bias in decisions requires some objective criterion of performance with which a putatively biased procedure can be compared. Unfortunately, this objective criterion of unbiased judgment is not available in actual organizations such as FedEx, largely because evaluations almost invariably involve the mediation of potentially biased human judges. Accordingly, the best way to get relevant evidence is from experiments.

7. Empirical findings on own-race bias. There are relatively few available studies.

Perhaps the best known study of own-race rejection is the famous "doll study" by Clark

.,

and Clark (1949). in which a majority of Black children was more interested in playing

with a White don than a Black doll. In a well known field experiment in the social

- -- Ca-se 3-:0-3--c-v--02-87-8- - D.. - oc- um~ ent - 214-- 6 - Filed- 01/- 19/2- 007- P- age - 4 of - 7 --~

Greenlr'Jaki, 3 Sep 06 Report -12-

psychology literature, Gaertner and Bickman (1971) had callers - who were clearly

,

I

identifiable by voice as Black or White - telephone known Black or White residents of segregated neighborhoods in Brooklyn, New York. The caller asked for "Ralph's

I,,.

Garage" and expressed disappointment at having dialed an apparent wrong number.

The caller proceeded to say that he had used his last coin for the call . gave the phone

number he wanted to reach, and then asked the callee to do the favor of calling it and

letting Ralph's Garage know about the problem and the location of his disabled car.

This study is known primarily for its demonstration that White callees discriminated by

helpi ng Black ca llers less than they helped White callers. Less well known is that a

weaker level of bias was shown by Black callees, who also helped Black callers less

than they helped White callers.

8. In a study of tipping behavior by Black and White cab passengers who took rides in New Haven. CT cabs driven by Black and White drivers, Ayres, Vars, and Zaka.riya (2005) found that Black passengers discriminated against Black drivers, T hey gave tips that were 33% lower to Black than White cab drivers - virtuaUy identical to the percentage measure of discrimination shown by higher-tipping White cab riders.

9. Historical phenomena from various locations illustrate groups being prejudiced against their own members. Some of this history was described by Jackman (2005).

. . . much violence against subordinates in unequal social relations is carried out by subordinates themselves (Jackman. 2001). either as the delegated henchmen for punitive actions initiated by dominants or as the self-appointed agents of injuries inmcted against themselves or their children. Chains of command in the workplace or in genocidal actions commonly tum over the dirty work of carrying out punitrve or malevolent acts of violence to selected members of the targeted group itself. For example, it was generally slave drivers (who were themselves staves) who were
responsible for whippings and other punishments in antebellum Southern plantations (Van Deburg, 1979), factory foremen are recruited from among the line workers they
oversee, and the rounding up of Jews in Polish ghettos to meet Nazi deportation quotas for Holocaust concentration camps was often deputized to the Jewish ghetto police.

10. Another such phenomenon. widely reported in popular sources but never the
object of scientific study. is colorism among Blacks. This practice took the form of
selecting as appropriate members of African American fraternities and sororities only

Case 3:03-cv-02878 Document 214-6 Filed 01/19/2007 Page 5 of 7
Greenwald. 3 Sep 06 Report -13-
those candidates who could pass a "brown paper bag" test, which required them to demonstrate that their skin tone was lighter than a brown paper bag. (See hfto:llen.wikipedia.org/wiki/Colorism). Wilkins and Williams (2005) reported evidence that, relative to White police officers, Black police officers participated as actively or more actively in racial profiling. Racial profiling by Black police officers, targeted against Black citizens, has also been the subject of several news reports - see www.boston.com/globe/metro/packages/tickets/072003b.shtml and www.fredonevervthing.netlyyProfiles.shtml.
11. Two important theoretical perspectives, Jost and 8anaji's (1994) system justification theory and Sidanius and Pratto's (1999) social dominance theory, have provided interpretations of the ease with which members of low status groups accept and adopt the ideologies and customs that keep their groups relatively downtrodden.
or However, it is not only members of low-status stigmatized groups that can be induced
to direct hostility toward members of their own groups. In a famous study, Stanley Milgram (1963) found that adult White residents of New Haven readily were willing to inflict electric shocks of presumed near-lethal severity to a middle-aged White male whom they believed to be a co-participant in an experiment. In a very different setting. Zimbardo (1973) found that White Stanford undergraduates could be induced to play the role of cruel prison guards, exercising their authority over other Stanford students who had been assigned to play the role of prisoner.
12. Finally, and also presaging results on impli~it bias described later in this report, studies using measures of implicit bias have found substantial levels of implicit negativity toward low status ingroups, relative to higher status outgroups (Dasgupta, 2004; Jost, Pelham, & Carvallo ,2002; Spicer, 2000). In results from very large numbers of Black American respondents to a race Implicit Association Test on the Internet - a procedure that provides a measure of implicit bias favoring either racial White or Black - approximately half of Black respondents indicate preference for White. (These data are summarized in the Greenwald & Krieger, 2006 article that is included as Attachment 3 of this report.)

Case 3:03-cv-02878 Document 214-6 Filed 01/19/2007 Page 6 of 7
Greenwald, 3 Sep 06 Report -17-
IV, Alternatives to Dr. Baker's interpretation of her evidence
16. Dr. Baker interpreted the data in her report as being consistent with the proposition that FedEx's Black employees are, on average, inferior, and therefore deserving of the lower performance ratings and greater disciplinary action that they h;;tve received. For her, the critical observations were that Black managers administered more frequent discipline to Black than White employees and also gave lower performance ratings to Black than White employees. Re-analyses of Baker's data for this report revealed that her equal-differentiation description of the data pattern for performance ratings was invalid. Rather than finding that managers of all races differentiated equally between White and Black employees, it was clear in her data that B[ack managers differentiated more than did others, being relatively harsher on Black employees (see Figure 1). The resulting disadvantage to Blacks at Fed Ex is exacerbated by the fact that Black managers are responsible for evaluating a disproportionately large fraction of Fed Ex's Black employees (see Figure 2). Consideration of substantial available scholarly research literature also reveals that Dr. Baker's gold-standard assumption (Le., that Blacks can be assumed to be objective and accurate in evaluating other Blacks) lacks substantiation and is directly contradicted by not only by research findings, but also by historical data and by multiple established theoretical views.
17. My analyses paid relatively little attention to the portion of the class represented by Hispanic employees. Figure 1 reveals that Hispanic employees received relatively low evaluations from all racial groups of managers. These data, unlike the data for Black employees, did approximately conform to an equal-differentiation pattern. Nevertheless, in the absence of evidence for the gold-standard assumption, this equal differentiation pattern provides no assurance that adverse impacts on Hispanics can be interpreted as indicating that their job performance is inferior. The theory that these lower ratings represent across-the-board discrimination against Hispanics by managers of all race groups at Fed Ex remains viable and plausible.

Case 3:03-cv-02878 Document 214-6 Filed 01/19/2007 Page 7 of 7
Greenwald, 3 Sep 06 Report -18-
18.lt remains to explain the observation that, compared to White, Hispanic, and Asian managers, Black managers at FedEx were relatively harsher to Black employees. (There were not sufficient data to include Native American managers in the analysis that arrived at that conclusion.) The three following interpretations are not the only conceivable interpretations, but they are psychologically the most plausible interpretations.
(a) Black managers who are known to be harsh toward Black employees are given more Black employees to supervise (b) Black managers who supervise a high proportion of Black employees are harsh toward employees of all races (c) Black managers are subtly (or perhaps not so subtly) encouraged to be harsh toward their Black supervisees
The first of these hypotheses (harsh Black managers assigned extra supervisees) could not be evaluated using data available for analysis. The second (Black managers harsh toward all employees) is refuted by Figure 1's evidence that Black managers' ratings of Hispanic and Asian employees were comparable to ratings of Hispanic and Asian employees by managers of other races. The last of the three interpretations (Black managers co-opted into harsh behavior towards members of their own race) is psychologically the most plausible of the three interpretations. It is consistent both with existing psychological theorization on system justification and social dominance, as well as with historical episodes of members of disadvantaged groups being co-opted to
participate in the perpetuation of their group's lower status (see 1111 6--12, above).
V. Using the correlation between subjective and objective components of performance rating measures as an indicator of discrimination
19. The performance rating data set to which I had access had been coded by Dr. Baker so as to permit a distinction between "objective" and "subjective" measures. There remains a significant question as to how meaningful this objective-subjective distinction is, because various of the depositions available to me indicated that

 
 Case3:03-cv-02659 Document906 Filed01/13/10 Page1 of 4

United States District Court For the Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 DERRICK SATCHELL, et al.,

No. C 03-2659 SI; No. C 03-2878 SI

9 10 v.

Plaintiffs,

ORDER DENYING MR. McCOY’S MOTION FOR RECONSIDERATION

11 FEDEX EXPRESS,

12

Defendant.

/

13

14

Mr. McCoy filed a motion for reconsideration of this Court’s Order Granting Motion for

15 Plaintiffs’ Counsel’s Reasonable Attorneys’ Fees Regarding Motion for Declaratory Relief. In that

16 order, the Court held that plaintiffs’ counsel (primarily the Schneider Wallace firm) were entitled to

17 $46,605.87 in fees and costs from Mr. McCoy pursuant to the terms of the attorneys’ Co-Counsel

18 Agreement. The fees and costs at issue were incurred when the Schneider Wallace firm brought and

19 won a motion for declaratory relief on behalf of the class representatives; the order granting declaratory

20 relief held that under the terms of the Attorney Representation Agreement and the Co-Counsel

21 Agreement, the class representatives were entitled to keep all of their individual settlement awards, and

22 did not have to pay Mr. McCoy the additional $1,000,000 in attorneys’ fees that he was demanding

23 (above the $1,070,000 he had already been awarded by this Court pursuant to the class action

24 settlement). See Docket No. 846.1

25

The Court concludes that none of the asserted grounds for reconsideration has merit. As an

26 initial matter, the Court finds that Mr. McCoy’s version of the facts surrounding the settlement

27

28

1 The Court incorporates that order by reference.

Case3:03-cv-02659 Document906 Filed01/13/10 Page2 of 4

United States District Court For the Northern District of California

1 negotiations and ultimate settlements of the named plaintiff’s individual claims is not supported by the

2 record and has previously been rejected by this Court. Mr. McCoy’s motion asserts five specific

3 grounds for reconsideration. First, Mr. McCoy contends that Paragraph 92 of the Co-Counsel

4 Agreement – which the Court held precluded Mr. McCoy from seeking additional fees from the named

5 plaintiffs beyond the fees awarded by the Court – also bars the Schneider Wallace firm from seeking

6 “additional” fees in connection with the motion for declaratory relief. Contrary to Mr. McCoy’s

7 arguments, there is nothing inconsistent about holding that Paragraph 9 of the Co-Counsel Agreement

8 precluded him from seeking additional fees from the class representatives beyond the fees awarded by

9 the Court, and also holding that Mr. McCoy is liable for fees under Paragraph 14 of the Co-Counsel

10 Agreement, which states that the “prevailing party in any dispute arising out of this agreement shall be

11 entitled to reasonable fees anc costs incurred in the proceeding.”

12

Second, Mr. McCoy argues that the Court “overlook[ed] the fact that Wallace stated that the

13 named plaintiffs did not incur any attorney’s fees.” Motion for reconsideration at 6:13. Mr. McCoy

14 cites language from the motion for attorneys’ fees in which the Schneider Wallace firm stated that, inter

15 alia, “Plaintiffs’ counsel were forced to bring a Motion for Declaratory Relief,” and “Plaintiffs’ counsel

16 are now entitled to the fees and costs they have incurred . . . .” Mr. McCoy previously raised this

17 argument, contending that the Schneider Wallace firm was actually representing itself, and not the

18 plaintiffs, and thus that the firm was not entitled to fees. The Court rejected that argument, holding that

19 “the true legal dispute is between Mr. McCoy and the class representatives” because Mr. McCoy was

20 seeking and that “the declaratory relief motion for was filed on behalf of the class representatives[.]”

21 Order at 2:24-26. The class representatives filed declarations in support of the motion for declaratory

22 relief, Docket Nos. 819-26, and those declarations make clear that there was an actual legal dispute

23 between Mr. McCoy and the named plaintiffs as to their representation and Mr. McCoy’s demand for

24 attorneys’ fees.

25

Third, and relatedly, Mr. McCoy argues that the Court violated his due process rights by granting

26

2 Paragraph 9 of the Co-Counsel agreement states: “The fee agreements with the proposed class 27 representatives will make clear that if the case is certified as a Class and the Class prevails, Class

28

Counsel will apply to the court for a reasonable fee, and that the proposed class representatives will not have to pay fees beyond the fees awarded by the court.”

2

Case3:03-cv-02659 Document906 Filed01/13/10 Page3 of 4

United States District Court For the Northern District of California

1 fees to the named plaintiffs as third-party beneficiaries when “the argument was deemed waived because

2 it was not raised in Wallace’s opening brief.” Motion for reconsideration at 7:10-11. Mr. McCoy

3 argues that the Court violated his due process rights by basing its order on an argument first raised by

4 the Schneider Wallace firm in its reply brief on the attorneys’ fees motion. However, the argument at

5 issue – whether the Schneider Wallace firm were acting in pro per with regard to the fee motion or

6 whether the plaintiffs were the third party beneficiaries of the Co-Counsel Agreement – was raised by

7 Mr. McCoy in his opposition to the attorneys’ fees motion, and Mr. McCoy addressed that issue at

8 length.3 The Court did not “violate Mr. McCoy’s due process rights,” as he had the opportunity to

9 address the issue. Further, for the reasons set forth in the order granting attorneys’ fees, the Court finds

10 that the named plaintiffs are third-party beneficiaries of the Co-Counsel Agreement.

11

Fourth, Mr. McCoy asserts that “the Court violat[ed] Mr. McCoy’s due process rights by

12 granting fees, without oral argument, based on arguments raised for the first time in Wallace’s Reply

13 Brief without [sic].” Motion for reconsideration at 9:1-2. However, neither Mr. McCoy’s motion for

14 reconsideration nor his reply identifies any specific examples – aside from the argument discussed in

15 issue 3 – of arguments that the Court considered that were supposedly raised for the first time in

16 Schneider Wallace’s reply brief. Indeed, the Court allowed Mr. McCoy to file the instant motion for

17 reconsideration largely based on this assertion, for if in fact the Court had granted the attorneys’ fees

18 motion on grounds first raised in the reply, the Court wanted to provide Mr. McCoy with the opportunity

19 to address those issues. Mr. McCoy’s failure to articulate any specific arguments belies his assertion

20 that the Court improperly based its order on contentions first raised in the fee reply.

21

Finally, Mr. McCoy claims that “the Court err[ed] in ruling that Mr. McCoy did not contest the

22 reasonableness of Wallace’s fee petition.” Motion for reconsideration at 9:13-14. In so arguing, Mr. 23 McCoy mischaracterizes what the Court actually held. In the fee order, the Court found that “counsel’s 24

25

3 Indeed, as the Court’s order stated, “Mr. McCoy objects to the motion for attorneys’ fees on

26

several grounds. First, Mr. McCoy characterizes the motion for declaratory relief as one brought by Schneider Wallace, not a motion brought on behalf of the class representatives. As a corollary to this

27

argument, Mr. McCoy contends that the class representatives are neither parties to nor third party beneficiaries of the Co-Counsel Agreement. Mr. McCoy then argues that because Schneider Wallace

28

‘litigated in propia persona’ the firm is not entitled to recover fees and costs associated with the declaratory relief motion.” Order at 2:8-13.

3

Case3:03-cv-02659 Document906 Filed01/13/10 Page4 of 4

United States District Court For the Northern District of California

1 fees and costs are documented and reasonable, and notes that Mr. McCoy has not raised any objection

2 to the rates sought or hours expended.” Order at 4:3-5. This statement was and remains true: Mr.

3 McCoy did not raise any specific objection to the hourly rates sought or to the hours claimed by

4 Schneider Wallace. Instead, Mr. McCoy’s motion for reconsideration plays a semantic game by

5 asserting that Mr. McCoy had in fact contested the reasonableness of the rates and hours sought because

6 Mr. McCoy contested the fee motion and argued that fees should be denied because the contract

7 contained an arbitration provision. The Court rejected Mr. McCoy’s argument about arbitration, finding

8 that Mr. McCoy waived any right he had to arbitrate the matters presented by the motion for declaratory

9 relief. See Order at 3:2-25. Contesting a fee motion on the ground that the matter should be arbitrated

10 is not tantamount to contesting the reasonableness of the rates sought and hours claimed in a fee petition.

11

For the foregoing reasons, the Court DENIES Mr. McCoy’s motion for reconsideration. Docket

12 No. 891.

13

IT IS SO ORDERED.

14

15 Dated: January 13, 2010 16

SUSAN ILLSTON United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28

4

 
 Case: 0C9-a1s5e537:053-cv0-60/21665/2901D0ocuPmaegnet:9111of 6FiledID06: /72327/130851PagDe1ktoEfn6try: 30-1
FILED

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

JUN 16 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TANDA BROWN; BERTHA DUENAS; KEVIN NEELY; JANICE LEWIS; DYRONN THEODORE; LASONIA WALKER; EDWARD ALVARADO; JOHN AZZAM; CHARLOTTE BOSWELL; PERNELL EVANS; CHARLES GIBBS; MARIA MUNOZ; LORE PAOGOFIE; CHRISTOPHER WILKERSON,

No. 09-15575
D.C. Nos. 3:04-cv-00098-SI 3:04-cv-00099-SI 3:03-cv-02659-SI
MEMORANDUM *

Plaintiffs,

and

WAUKEEN Q. MCCOY,

Appellant,

v.

FEDERAL EXPRESS CORPORATION, a Delaware corporation, DBA Fedex Express,

Defendant - Appellee,

and

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Case: 0C9-a1s5e537:053-cv0-60/21665/2901D0ocuPmaegnet:9211of 6FiledID06: /72327/130851PagDe2ktoEfn6try: 30-1
KAY MCKENZIE PARKER; ANGELA ALIOTO, DBA Angela Alioto PLC; CARLENE YOUNG,
Lien Holders.
Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding Argued and Submitted May 12, 2010 San Francisco, California
Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges. Appellant Waukeen McCoy, an attorney for plaintiffs in the underlying case,
appeals the district court’s denial of his attorney’s fees petition, its imposition of the sanction of refusing to permit him to refile the petition, and its imposition of a $25,000 monetary sanction. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the initial denial of the attorney’s fees petition, vacate the imposition of both sanctions, and remand for further proceedings.
After several of McCoy’s clients prevailed at trial, McCoy sought statutory attorney’s fees pursuant to 42 U.S.C. § 1988. Defendant Federal Express Corp. (“FedEx”) objected and sought sanctions, contending that there were deficiencies in the fee petitions and possible fraud. After extensive proceedings before a
2

Case: 0C9-a1s5e537:053-cv0-60/21665/2901D0ocuPmaegnet:9311of 6FiledID06: /72327/130851PagDe3ktoEfn6try: 30-1
Special Master and a hearing before the district court, the district court found that McCoy had engaged in bad faith conduct by making repeated material misrepresentations regarding his time records and how the fee petitions were created, that he had failed to produce time records responsive to the Special Master’s order, and that the fee petitions were inaccurate, unreliable, and contained false entries. It concluded, because it “cannot rely with any confidence on Mr. McCoy’s papers, declarations or arguments in support of his fee petitions,” that it was appropriate to deny them in their entirety.
We review the denial of attorney’s fees for abuse of discretion, and factual findings for clear error. Saint John’s Organic Farm v. Gem County Mosquito Abatement Dist., 574 F.3d 1054, 1058 (9th Cir. 2009). We affirm the denial of the fee petitions. The district court was justified in initially denying the fee petitions based on its factual findings about their inaccuracies and McCoy’s conduct in creating them. These findings were well supported.
In addition to striking the fee petitions, the district court held that McCoy’s conduct merited sanctions. The district court imposed a $25,000 monetary sanction. It also wrote that “one appropriate sanction is to deny the fee petitions with prejudice—that is, strike them from the file without leave to refile or amend them,” and imposed that sanction. We review a district court’s imposition of
3

Case: 0C9-a1s5e537:053-cv0-60/21665/2901D0ocuPmaegnet:9411of 6FiledID06: /72327/130851PagDe4ktoEfn6try: 30-1
sanctions under its inherent power for abuse of discretion. Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991). We review de novo “issues of law, including whether the district court provided adequate process before imposing sanctions.” Lasar v. Ford Motor Co., 399 F.3d 1101, 1109 (9th Cir. 2005).
Inherent power sanctions require a level of procedural protections similar to that required for contempt proceedings. Lasar, 399 F.3d at 1109 n.5; F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1137-39 (9th Cir. 2001). The $25,000 sanction the district court imposed was criminal in nature. It was intended to punish McCoy for his conduct and to vindicate the court’s authority and integrity of the judicial process, not to compensate FedEx for losses sustained or to coerce McCoy into compliance with a court order. See id. at 113738. Nor was there an opportunity for McCoy to reduce or avoid the fine through compliance. Id. Accordingly, the district court was obligated to provide McCoy with appropriate procedural protections. See id. at 1139-41. Because these protections were not provided, we vacate the $25,000 sanction, and remand to provide the district court the opportunity to provide such protections in a sanctions proceeding. See id. at 1141-42.
We also vacate the sanction of striking the fee petitions “with prejudice” and remand for further proceedings. The district court indicated that its denial of
4

Case: 0C9-a1s5e537:053-cv0-60/21665/2901D0ocuPmaegnet:9511of 6FiledID06: /72327/130851PagDe5ktoEfn6try: 30-1
permission to McCoy to refile his request for attorney’s fees was a “sanction.” So long as the district court’s decision is characterized as a sanction for past wrongful conduct, McCoy is entitled to procedural protections comparable to those applicable to the monetary sanction described above. Ordinarily, an attorney should be allowed to refile a fee request after errors have been corrected. But in appropriate circumstances a district court may deny permission to refile. For example, a district court may, in its discretion, deny permission to refile when it is evident from prior failures to correct errors that the fee applicant has been either unable or unwilling to correct those errors. The district court is free, on remand, to determine whether a denial of permission to refile may be justified on this basis rather than justified as a sanction. If justified on this basis, the procedural protections applicable to sanctions would of course not apply.
We note that in deciding whether to deny McCoy permission to refile a request for attorney’s fees, the district court may wish to consider the possible effect of such a denial on McCoy’s clients. It is possible that if McCoy is unable to collect statutory attorney’s fees from FedEx he may be able to collect contractual attorney’s fees from the clients. In that event, it would be the clients rather than McCoy who would suffer the adverse consequences of McCoy’s misconduct in
5

Case: 0C9-a1s5e537:053-cv0-60/21665/2901D0ocuPmaegnet:9611of 6FiledID06: /72327/130851PagDe6ktoEfn6try: 30-1 seeking fees. We do not have any specific direction to the able district court. We note only that this is a factor the court may wish to consider.
AFFIRMED IN PART; VACATED AND REMANDED IN PART. Each side shall bear its own costs on appeal.
6

 
 Case: C08a-s1e539:043-cv-0062/6259/20D10ocumPeangte9:113of F1iled0ID7:/0763/815066P8ageD1kotEf 1ntry: 49
FILED

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

JUN 25 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KALINI BOYKIN; VALERIE BROWN; RICK GONZALES; CYNTHIA GUERRERO; RACHEL HUTCHINS; DERRICK SATCHELL; DANIEL SHERMAN; KELVIN SMITH, Sr.; KEN STEVENSON,
Plaintiffs - Appellees,
v.
WAUKEEN Q. MCCOY,
Appellant,
FEDEX EXPRESS, a Delaware corporation,
Defendant.

No. 08-15904 D.C. Nos. 3:03-CV-02659-SI
3:03-CV-02878-SI
O R D E R

Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges. The motion to stay the mandate of this court is hereby DENIED.

 
 Satchell v. FedEx Corp., Not Reported in F.Supp.2d (2005)
2005 WL 2397522 United States District Court,
N.D. California.
Derrick SATCHELL, et al. Plaintiffs, v.
FEDEX CORPORATION, Defendant.
No. C 03-02659 SI, C 03-02878 SI. | Sept. 28, 2005.
Attorneys and Law Firms
Guy B. Wallace, Elisa P. Laird, Joshua Konecky, Sheryl Ivonne Harris, Todd M. Schneider, Schneider McCormac & Wallace, Michael S. Davis, Law Offices of Michael S. Davis, Waukeen Q. McCoy, Law Offices of Waukeen Q. McCoy, Bill Lann Lee, James M. Finberg, Lexi Joy Hazam, Esq., Nirej S. Sekhon, Chimene I. Keitner, Lieff, Cabraser, Heimann & Bernstein, LLP, Kay McKenzie Parker, Law Offices of Kay McKenzie Parker, San Francisco, CA, John L. Burris, Law Offices of John L. Burris, Felicia C. Curran, Law Offices of John D. Winer, 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 J. Reis, Howard Rice Nemerovski Canady Falk & Rabkin, San Francisco, CA, Frederick L. Douglas, Sandra Colene Isom, Federal Express Corporation, Memphis, TN, for Defendant.
Opinion
ORDER RE: PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
ILLSTON, J.
*1 Plaintiffs’ motion for class certification is presently pending before the Court. Defendant has opposed the motion. Having carefully considered the arguments of counsel and the papers submitted, the Court hereby GRANTS plaintiffs’ motion.
BACKGROUND
This action arises under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the California Fair Employment and Housing Act, Cal. Gov’t Code § 12940 et seq., (“FEHA”). Plaintiffs allege that defendant FedEx Express (“FedEx” or “defendant”) discriminates based on race in (1) performance evaluations, (2) promotion, (3) compensation, and (4) discipline throughout the Western Region. The Western Region has four separate operations: Domestic Ground Operations (“DGO”), Air Ground Freight Services (“AGFS”), Air Operations Division, and the Customer Call Centers. Plaintiffs’ proposed classes include employees from DGO and AGFS. AGFS performs ramp operations at airports and package sorting at major sort facilities. DGO performs sort, delivery, and pick-up operations at local stations throughout the region.
Plaintiffs seek certification of a “Minority Employee Class” consisting of African-American and Latino hourly employees in the following positions: Handler, Freight Handler, Material Handler, Checker-Sorter, Customer Service Agent, Courier, Swing Driver, Ramp Transport Driver (“RTD”), Ramp Area Driver, Shuttle Driver, Dangerous Goods Agent, Information Agent, Operations Agent, Ramp Agent, Service Assurance Agent, Truck Control Agent, Trace Representative, Input Auditor, Team Leader, and Dispatcher. This class seeks to prohibit defendant from (1) providing minority employees with disproportionately fewer promotions to Checker/Sorter, Courier and other driving positions, and Operations Manager; (2) compensating minority employees less for the same work than similarly-situated non-minority counterparts; and (3) disciplining minority employees more frequently and more harshly than similarly-situated non-minority counterparts for the same occurrences.
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Satchell v. FedEx Corp., Not Reported in F.Supp.2d (2005)
In addition, plaintiffs propose a second class, the “African-American Lower-Level Manager Class,” consisting of African-American managers below the Senior Manager level. This proposed class challenges defendant’s alleged practices of compensating African-American lower-level managers less than their non-minority counterparts for the same work, and disciplining such managers more frequently and harshly than their non-minority counterparts.
According to plaintiffs, the effect of defendant’s discriminatory practices is that the highest percentage of minority employees is in the lowest paid positions-hourly positions as Handler, Freight Handler, and Material Handler-and the representation of minorities drops at each step up the promotions ladder. See Statistical Analysis of Race and Ethnic Patterns in Federal Express Workforce by Richard Drogin, Ph.D. (“Drogin Report”) ¶¶ 12-14. Plaintiffs allege that FedEx has a culture of hostility towards minorities, and that a lack of meaningful standards and monitoring allows racial bias to infect performance evaluation, promotion, compensation, and discipline decisions.
*2 With respect to promotion, plaintiffs allege discrimination in promoting employees from “casual” to “permanent” status. Casual employees have the least job security of all FedEx employees. They also do not have access to the FedEx intranet, including the on-line Job Change Application Tracking System (“JCATS”), through which permanent employees apply for positions. As a result, promotions to permanent positions allegedly take place through a “tap-on-the-shoulder” process.
Plaintiffs also allege discrimination in promotion within the ranks of permanent employees. Plaintiffs allege that the Basic Skills Test (“BST”), which an employee must pass to be promoted from Handler to Courier or other driving positions (the most common path), has a statistically significant adverse impact on minorities, disqualifying almost two-thirds of African-Americans who apply for the Courier job.
In addition, plaintiffs allege discrimination in promoting employees to entry-level manager positions. The Courier job is typically the stepping stone to the Operations Manager position, the first-line management job. FedEx uses the “ASPIRE” program to select first-line managers, which involves one prerequisite class and four development classes. An employee cannot attend these classes without his or her manager’s approval. Then, when applying for a manager position, a candidate receives “screening” scores based on several evaluation tools (that plaintiffs allege have not been validated), and is ultimately subjected to an interview by a panel selected by the hiring manager. The hiring manager is supposed to select the highest-scoring candidate, but plaintiffs contend that managers do not always follow this rule to the detriment of African-American and Latino applicants.
Plaintiffs also allege that defendant uses a discriminatory performance evaluation system that causes under-promotion of minority employees. They have introduced evidence of a statistically significant disparity in the evaluation of minority employees and white employees in the same jobs. According to plaintiffs, this disparity is due to the use of subjective criteria (like “teamwork,” “professionalism,” and “neatness”) and the lack of guidance given to managers to ensure that the subjective criteria are used in the same way by all managers. Performance evaluations directly impact eligibility for promotion. In addition, an employee’s current manager must approve the employee’s application for promotion, and managers have complete discretion to approve or disapprove these applications, without explanation or review of these decisions. Among approved applicants, FedEx policy requires that the promotion be given to the application with the highest “CEV” score, which is based on their time in service and their last two performance evaluation scores, but in practice hiring managers may select lower ranked applicants.
Defendant’s personnel policy provides that an employee with an active discipline warning letter or performance reminder is not eligible for promotion. Warning letters and “online counselings” can also be taken into account in performance reviews, and an unsatisfactory performance review automatically results in the issuance of a performance reminder letter. Thus, discipline decisions and performance evaluations are intertwined, and have a significant adverse impact on promotion opportunities for minority employees. Plaintiffs contend that minority employees are disciplined much more frequently than white employees. Drogin Rpt. ¶¶ 53-55, Table 22.
*3 Compensation is determined by a formula tied to performance evaluations and, by implication, to discipline. See People Manual § 3-10, Table 1. Plaintiffs contend that minority employees and lower level managers are paid less than non-minorities, when accounting for seniority, part-time status, casual/permanent status, job title, and facility.
Plaintiffs do not allege that defendant’s personnel system is “entirely subjective.” Rather, they contend that while FedEx’s operations are uniform, centralized, and hierarchical, and its personnel policies are also uniform across the company, managers are given significant discretion in making the decisions about discipline and performance evaluation that impact compensation and promotion opportunities down the line.
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Satchell v. FedEx Corp., Not Reported in F.Supp.2d (2005)
In support of their motion, plaintiffs have submitted the following materials: (1) deposition, testimony, declarations, and charges of discrimination by the named plaintiffs; (2) eighteen declarations from current and former FedEx employees; (3) FedEx documents and the testimony of FedEx’s corporate representatives; (4) a report by statistician Richard Drogin regarding statistically significant disparities in evaluation, promotion, compensation, and discipline decisions; (5) a report by sociologist William Bielby regarding racial stereotypes in human resources processes; and (6) a report by industrial organizational psychologist Nita French regarding FedEx’s “Basic Skills Test.” In opposition, defendant has filed: (1) FedEx’s principal personnel manual, the “People Manual”; (2) excerpts from the depositions of plaintiffs and plaintiffs’ experts; (3) declarations from FedEx employees; (4) a report by statistical expert Mary Dunn Baker; (5) a report by industrial organizational psychologist Jerilyn Hayward; and (6) a report by management practices expert Jan Duffy. Plaintiffs filed (1) a reply declaration of Richard Drogin to the report of Mary Baker; (2) a reply declaration of Nita French to the reports of Jerilyn Hayward and Jan Duffy; and (3) a report by labor economist Marc Bendick, Jr, as well as additional excerpts of testimony.
LEGAL STANDARD
A court may certify a class if the plaintiff demonstrates that all of the requirements of Federal Rule of Civil Procedure 23(a) are satisfied and at least one of the requirements of Rule 23(b) is satisfied. See Fed.R.Civ.P. 23; Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996). Rule 23(a) requires that the following four factors must be met: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed.R.Civ.P. 23(a). In short, the class must satisfy the requirements of numerosity, commonality, typicality, and adequacy.
*4 In addition to demonstrating that the Rule 23(a) requirements are met, plaintiff must establish one or more of the following grounds for maintaining the suit as a class action pursuant to Rule 23(b): (1) that there is a risk of substantial prejudice from separate actions; (2) that declaratory or injunctive relief benefitting the class as a whole would be appropriate; or (3) that common questions of law or fact predominate and the class action is superior to other available methods of adjudication. See Fed.R.Civ.P. 23(b). Here, plaintiffs assert that this case falls within Rule 23(b)(2).
In determining the propriety of a class action, the question is not whether the plaintiffs have stated a cause of action or will prevail on the merits, but, rather, whether the requirements of Rule 23 are met. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). The Court must conduct a rigorous analysis to determine whether the Rule 23 requirements have been met. See Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The Court is obliged to accept as true the substantive allegations made in the complaint. See In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 691 F.2d 1335, 1342 (9th Cir.1982); Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir.1975). However, it “need not blindly rely on conclusory allegations which parrot Rule 23 requirements [and] may ... consider the legal and factual issues presented by plaintiff’s complaints.” 2 Herbert Newberg & Alba Conte, Newberg on Class Actions 7.26 (3d ed.1992).
The decision to certify a class is committed to the discretion of the district court. See Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1309 (9th Cir.1977). Under Rule 23(c), a court may maintain a class action as to particular issues only or divide a class into subclasses. See Fed.R.Civ.P. 23(c)(4).
DISCUSSION
I. Rule 23(a) Requirements
A. Numerosity Rule 23(a)(1) requires that the class be so numerous that the number of potential plaintiffs cannot be practicably joined. Whether joinder would be impracticable depends on the facts and circumstances of each case and does not require any specific minimum number of class members. In this case, it is undisputed that the proposed Minority Employee Class
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numbers in the thousands, and the African-American Lower Level Manager Class contains hundreds of class members. Drogin Rpt. ¶¶ 13-16. The numerosity requirement is easily met.
B. Common questions of law or fact1 Rule 23(a)(2)’s commonality requirement may be satisfied by “the alleged existence of common discriminatory practices.” Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D.Cal.1994) (citation omitted). A defendant’s actions need not affect each class member in the same manner. Id. In the Ninth Circuit, the commonality requirement has been “construed permissively,” and may be satisfied by either “shared legal issues with divergent factual predicates,” or “a common core of salient facts coupled with disparate legal remedies.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1988). Indeed, the Ninth Circuit considers the requirements for finding commonality under Rule 23(a)(2) to be “minimal.” Id. at 1020.
*5 Plaintiffs contend that they have satisfied this requirement by raising both the common legal issue and the common factual issue of discrimination against minorities at FedEx. Specifically, they rely on the uniformity of personnel policies throughout the Western Region, as reflected in the “People Manual,” the Basic Skills Test, performance evaluations and discipline records, and the compensation and promotion decisions based on all of these factors. Common questions of fact include (1) whether FedEx’s promotions, compensation, discipline and evaluation policies and practices in the Western Region are arbitrary, subjective and discretionary and thus susceptible to discriminatory application by predominantly non-minority managers; (2) whether the Basic Skills Test has been properly validated, (3) whether FedEx denies minorities equal promotional opportunities; (4) whether performance evaluations are race-biased; and (5) whether the discipline system is applied unfairly to minority employees. Common legal questions are also presented, such as (1) whether FedEx’s conduct produces an adverse impact in violation of Title VII and FEHA; (2) whether FedEx’s conduct constitutes adverse treatment under Title VII, § 1981, and FEHA, and (3) whether FedEx’s conduct can be justified as a “business necessity.”
Defendants raise a number of specific challenges to commonality. As a general matter, FedEx contends that plaintiffs cannot pursue a theory of subjective decision making because FedEx’s personnel decisions are not entirely subjective, but rather are driven by objective factors spelled out in the People Manual and the DGO and AGFS manuals. This argument is unavailing. A court may certify a class where the challenged personnel policies contain both objective and subjective components. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) (noting that subjective decision-making is a “practice” subject to challenge under Title VII); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir.1990).
Relatedly, FedEx contends that there is no common “promotion” claim because promotion decisions are based on objective factors such as (1) time in service; (2) meeting minimum qualifications, including passing the Basic Skills Test; (3) active discipline related to the position; and (4) the applicant’s past two performance evaluations.2 However, plaintiffs argue that even if promotions are based on “objective” criteria, defendant ignores the adverse impact of these criteria and has failed to validate the use of such criteria. Plaintiffs also contend that FedEx managers have unmonitored discretion to approve or not approve employee applications.
FedEx also challenges the conclusions of plaintiffs’ sociologist-expert regarding the discretionary aspects of the promotion process because it is based on the statistical analysis of Drogin, which FedEx argues is flawed. Indeed, defendant devotes much of its opposition to criticizing Drogin’s methods and arguing that the analysis of defendant’s expert, Mary Baker, is more accurate and sound. However, an evaluation of which party has presented more compelling statistical evidence is a question of fact that should be resolved on the merits by the trier of fact and not at the class certification phase. See Bouman v. Block, 940 F.2d 1211, 1225 (9th Cir.1991); see also Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292 (2d Cir.1999).
*6 FedEx also argues that commonality is lacking because plaintiffs have disparate promotion claims, some named plaintiffs never sought promotions, and not all class members received poor evaluations, including proposed named plaintiffs Brown, Stevenson, and Smith. These arguments relate more to the typicality of the plaintiffs than to whether there are common issues of law and fact; as discussed in Section I.C. infra, however, the named plaintiffs need not represent each and every type of claim in order to be “typical” and adequately represent the class.
FedEx also argues that there is neither a common “performance evaluation claim” nor a common “compensation claim.” Defendants highlight the fact that FedEx uses 12 separate performance evaluations for hourly employees that evaluate different job-related criteria. However, the fact that FedEx uses a number of different evaluation forms does not defeat
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commonality. Instead, what is relevant for purposes of class certification is whether FedEx’s systems and processes for evaluating employees present common issues. As plaintiffs note, all Operations Managers are evaluated with the same form, and the 12 different forms for hourly employees use the same rating scale and have overlapping categories. In addition, all of the forms are centrally designed and disseminated, and a single individual is responsible for all of them. Further, plaintiffs allege that the discretionary nature of reviews, as well as the fact that they have not been validated, present common issues of fact.
FedEx also contends that plaintiffs’ compensation claims must fail because plaintiffs’ own statistical analysis shows that minorities received higher evaluations on average than whites in many job categories, and defendant’s statistical analysis suggests that in many jobs in many of the relevant years, minorities received higher compensation than whites. In support of these arguments, defendants rely heavily on their own statistician who challenges Drogin’s statistical analyses as flawed. As stated above, however, it is not appropriate at the class certification phase for the Court to decide which party’s statistical model is correct. See Bouman, 940 F.2d at 1225; see also Caridad, 191 F.3d at 292.
FedEx also contends that there is no common “discipline claim,” because discipline claims are particularly “ill-suited for class treatment,” and again because Drogin’s statistical analysis is flawed. Defendant also argues that managers have little discretion in whether to issue discipline, because the two primary reasons for discipline are attendance and accidents. It is plaintiffs’ contention, however, that FedEx’s discipline system suffers from the same defects of manager discretion, lack of systematic monitoring, and adverse impact that characterize its promotion, evaluation and compensation systems. Discipline claims have been certified in other cases. See, e.g., Chisholm v. U.S. Postal Service, 665 F.2d 482, 492 (4th Cir.1981); Binion v. Metropolitan Pier & Exposition Auth., 163 F.R.D. 517, 521-24 (N.D.Ill.1995); see also Battle v. White Cap, Inc., 1999 WL 199594, *3 (N.D.Ill. March 31, 1999).
*7 Finally, FedEx contends that there is no common claim based on the BST, because there are four Basic Skills Tests covering reading comprehension, map reading, sorting, and listening, and different employees have to pass different portions of the tests; thus, there will be no class-wide proof on the appropriateness of the tests. However, plaintiffs contend that the BST is itself invalid, and thus whether a class member is required to take only a portion of the BST, or several portions, plaintiffs assert that the BST will have a common adverse impact on class members.
The Court concludes that plaintiffs’ performance evaluation, discipline, promotion, and compensation claims present common questions of law and fact. Plaintiffs are challenging the uniform personnel policies of FedEx, and there are certainly common legal questions about whether the discretionary nature of personnel decision-making constitutes disparate treatment or disparate impact. See Watson, 487 U.S. at990-91 (1988); Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 150-51 (N.D.Cal.2004); Morgan v. United Parcel Service, Inc., 169 F.R.D. 349, 356 (E.D.Mo.1996). In addition, the statistical evidence on which plaintiffs rely is common to the class, and thus the inferences drawn from this evidence will also be common to all class members. See Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 339-40, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The question of whether defendant’s statistical model is superior to plaintiffs’ is for another day. See Caridad, 191 F.3d at 292.
C. Typicality The commonality and typicality requirements of Rule 23(a) tend to merge. See Falcon, 457 U.S. at 157 n. 3. Typicality exists if the named plaintiffs’ claims are “reasonably coextensive” with those of absent class members. See Hanlon, 150 F.3d at 1020. Typicality does not mean that the claims of class members must be identical or substantially identical. See Staton v. Boeing, 327 F.3d 938, 957 (9th Cir.2003). Plaintiff has submitted declarations of the eight proposed class representatives and eighteen class members, alleging that they all experienced the same discriminatory practices in performance evaluation, promotion, compensation, and discipline.
Defendant argues that the class lacks a named plaintiff for many of the claims, because none of the named plaintiffs sought hourly promotions to Courier, RTD or Checker-Sorter during the limitations period; none of the named plaintiffs is a Latino who sought and was denied a promotion to management; and the only casual employee plaintiff, Rachel Hutchins, only sought a promotion to a Customer Service position and did not seek a promotion to Courier.
Given the permissive standard for typicality, the Court finds that the claims of the putative class representatives are reasonably coextensive with those of absent class members, even if they have not experienced each and every alleged form of discrimination. See Arnold v. United Artists, 158 F.R.D. at 449 (holding that it is sufficient for plaintiffs’ claims to “arise from the same remedial and legal theories” as the class claims). With respect to plaintiffs’ promotion claims, there is no
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requirement that plaintiffs have a class representative for every job category. See Staton, 327 F.3d at 957; see also Hartman v. Duffey, 19 F.3d 1459, 1472 (D.D.C.1994) (holding that a job-by-job requirement for typicality “would permit an employer to defeat the broad enforcement of Title VII simply by administering different objective tests as part of the application process for each job.”); Dukes, 222 F.R.D. at 167 (holding that “there is no requirement that plaintiffs have a class representative for each management category that they seek to represent.”).
*8 Defendants also argue that the disciplinary records of the named plaintiffs make them inadequate. However, because plaintiffs allege FedEx disciplines class members more frequently and more harshly than similarly-situated non-minority employees, the fact that some of the named plaintiffs have been disciplined by FedEx makes them typical, not inadequate.
Defendants also argue that none of the named plaintiffs filed an EEOC charge alleging discrimination based on performance evaluation scores. However, the Court concludes that the named plaintiffs exhausted their administrative remedies with respect to this claim. The EEOC charges attached to the complaint allege discrimination in the terms and conditions of employment, and in particular named plaintiff Gonzales’ EEOC charge states he was discriminated against when FedEx lowered his performance scores.
Finally, defendants argue that all of the named plaintiffs either took and passed or were exempt from the BST, and thus the class representatives cannot adequately represent this claim. Although plaintiffs argue that they do not have a separate “claim” with respect to the BST, the Court agrees with defendant that if the validity of the BST is to be challenged, separately or otherwise, some representative plaintiff must have taken and failed some part of the BST. Plaintiffs will be given the option to amend their complaint to add such an individual.
D. Adequacy of representation Adequacy of representation under Rule 23(a)(4) involves two elements: (1) that the representative party’s attorney be qualified, experienced, and generally able to conduct the litigation; and (2) that the suit not be collusive and that the representative plaintiffs’ interests not be antagonistic to those of the remainder of the class. See Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978).
Defendant appears to concede the first element, and the Court finds it satisfied because the firms representing plaintiffs have demonstrated competence and possess considerable experience in handling complex class action lawsuits. With respect to the second element, defendant has argued that the interests of class representatives Derrick Satchell and Kalini Boykin conflict with those of the class because they are managers who made many of the evaluation, discipline, and promotion decisions challenged here. The Court finds that this conflict is avoided by the creation of two separate classes, as proposed by plaintiffs.
II. Rule 23(b) requirements Once the four requirements of 23(a) have been met, the Court must determine whether the case meets any of the three requirements of Rule 23(b). Plaintiffs argue that this class should be certified under Rule 23(b)(2), which provides in pertinent part:
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
* * *
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
*9 Fed.R.Civ.P. 23(b).
Defendants argue that class certification is improper because the FedEx has not acted on grounds “generally applicable” to the class and because damages issues predominate over plaintiffs’ requests for injunctive and declaratory relief. Defendant argues that Rule 23(b)(2) requires a homogeneity that is lacking because the employment decisions at issue were made by many different individuals applying many different policies. However, plaintiffs are not challenging a series of
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unrelated and discrete decisions, but rather a set of policies, procedures and systems that allegedly affect class members in a similar fashion. Plaintiffs allege that FedEx has acted in a manner generally applicable to the class by (1) using selection procedures with an adverse impact that have not been validated such as the BST and excessively discretionary performance reviews, (2) implementing a discipline system with adverse impact and no systematic monitoring of outcomes, (3) building these discretionary results into a compensation system based on biased performance reviews that has significant adverse impact; (4) discriminating in promotions, both because of the built-in biases of the BST, performance review, and discipline components, and because of a lack of monitoring of “pass-overs” where managers disregard policy, and (5) by maintaining a “tap the shoulder” system of promotion from casual to permanent jobs. Accordingly, the Court concludes that certification under Rule 23(b)(2) is appropriate.
Second, the fact that plaintiffs seek damages in addition to declaratory and injunctive relief does not preclude certification under Rule 23(b)(2). See Molski v. Gleich, 318 F.3d 937, 947 (9th Cir.2003); Probe v. State Teachers’ Retirement System, 780 F.2d 776, 780 (9th Cir.1986). Here, plaintiffs seek the following injunctive relief: (1) permitting casual employees to apply for and view the posting of jobs on the JCATS system; (2) eliminating passage of the BIT as a requirement for promotions into Courier and RED positions; (3) modifying performance evaluation criteria and monitoring performance evaluations to make them consistent, without adverse impact; and (4) modifying the discipline criteria and monitoring the discipline system. Plaintiffs also seek equitable monetary relief in back and front pay, which does not affect class treatment under 23(b)(2). See Probe, 780 F.2d 776. While plaintiffs seek compensatory and punitive damages as well, the Court concludes that injunctive relief, and not monetary damages, is the primary relief sought.
III. Class period The parties debate the appropriate start-dates for the class claims alleged in the complaint. The class start dates are governed by statutes of limitations, which differ among claims and, with respect to 42 U.S.C. § 1981, according to types of claims; and by the dates on which various representative plaintiffs filed their administrative claims.
*10 Plaintiffs’ consolidated amended complaint alleges the following different class periods according to type of claim and subclass: (1) for plaintiffs’ Title VII claims, a class period beginning June 20, 2002 for the Minority Employee Class and a class period beginning July 10, 2002 for the African-American Lower Manager Class;3 (2) for plaintiffs’ claims under 42 U.S.C. § 1981, a class period beginning October 17, 1999 for both classes; and (3) for plaintiffs’ FEHA claims, a class period beginning June 13, 2001 for the Minority Employee Class and a class period beginning July 31, 2001 for the African-American Lower Manager Class. See Consolidated Amended Complaint ¶¶ 164, 187, & 204.
The parties’ discussion of the class period centers on plaintiffs’ promotion claims. According to FedEx, the first EEOC charge that raised a promotion claim was filed on April 8, 2003, and thus the earliest possible date for the beginning of the Title VII liability period is June 12, 2002. The Court notes that this is 8 days earlier than the Title VII class period asserted by plaintiffs. See id. at ¶ 164. To be conservative, the Court will use the later date: The Title VII class period shall begin on June 20, 2002 for the Minority Employee Class and on July 10, 2002 for the African-American Lower Manager Class.
FedEx also argues that the earliest possible date for the beginning of the liability period for Section 1981 promotion claims is January 1, 2002 under the applicable state statute, California Code of Civil Procedure § 340(3). Plaintiffs contend that the liability for their promotion claims dates back to October 17, 1999 under 28 U.S.C. § 1658, the four-year catch-all federal statute of limitations.4
The class period for plaintiffs’ Section 1981 promotion claims is determined by whether those claims were actionable prior to 1990. In Jones v. R.R. Donnelly, 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004), the Supreme Court held that Section 1981 claims that were not actionable prior to the 1991 Civil Rights Act are governed by the four-year catch-all statute, rather than the applicable state statute of limitations. The Ninth Circuit, in Sitgraves v. Allied Signal, Inc., 953 F.2d 570 (9th Cir.1992), held that denials of promotion were actionable prior to the 1991 Civil Rights Act where the promotion “rises to the level of a new and distinct relation between the employee and the employer.” Id. at 572. Sitgraves held that the move from a non-supervisory position to a supervisory position met this test, as did a move from compensation based on hours worked to compensation based on an annual salary. Id. at 574.
Applying these tests, the Sitgraves court found actionable the claims of individuals who sought promotions from positions as hourly-compensated, non-supervisory employees to supervisory, salaried positions of professional rank. Id. In contrast, the court found non-actionable the claims of individuals who worked in semi-skilled, hourly positions who sought promotion to skilled, hourly positions that offered significant pay increases but no new supervisory responsibilities. Id. The court
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remanded for further findings with regard to another individual because the record was unclear whether the promotion “would have changed his position from supervised to supervisor; whether he was already a supervisor and the promotion simply moved him one step up the management ladder but would not have materially changed his contractual relationship with the employer; or whether a change in the nature of his supervisory functions would have significantly altered the nature of his relationship to management.” Id.
*11 Applying Sitgraves to the Section 1981 claims in this case, the Court concludes that changes from “casual” to permanent employment at FedEx were actionable prior to 1990, and thus are governed by the state statute of limitations. “Casual” employees do not have regular work schedules, receive no benefits, and do not have access to the FedEx intranet; when such employees become permanent, they enter into a “new and distinct” relationship with FedEx. Similarly, under Sitgraves the denial of promotions from hourly permanent positions to salaried permanent positions would have been actionable prior to 1990. See id. In contrast, promotions from one hourly permanent position to another, such as moving from Handler jobs to Courier, Checker/Sorter and Ramp Transport Driver, would not have been actionable prior to 1990 because although these promotions lead to pay increases, they do not include new supervisory responsibilities nor do they significantly change the employee’s relationship to management. See id.5
The Court will certify the classes for the time periods which accord with this analysis. The result, however, is cumbersome, and the parties may at a later time wish to seek a modification to these time frames.
CONCLUSION
For the foregoing reasons and for good cause shown, the Court hereby GRANTS plaintiffs’ motion for class certification.
The Court hereby certifies the following classes:
1. A “Minority Employee Class” consisting of all African-American and Latino Handlers, Freight Handlers, Material Handlers, Checker-Sorters, Customer Service Agents, Couriers, Swing Drivers, Ramp Transport Drivers, Ramp Area Drivers, Shuttle Drivers, Dangerous Goods Agents, Information Agents, Operations Agents, Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Input Auditors, Team Leaders, and Dispatchers, working in defendant’s Western Region6 who are or were employed during the class period, who allege claims of employment discrimination in violation of Title VII of the 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 Employment and Housing Act; and
2. An “African-American Lower-Level Manager Class” consisting of all African-American 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 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 Act.7 The Court certifies the following claims for the Minority Employees Class: (1) claims concerning promotions to Checker/Sorter, Courier and other driving positions, and Operations Manager; (2) claims concerning compensation; and (3) claims concerning discipline.
*12 The Court certifies the following claims for the African-American Lower Manager Class: (1) claims concerning compensation; and (2) claims concerning discipline.
The class periods are as follows:
(1) for plaintiffs’ Title VII claims, a class period beginning June 20, 2002 for the Minority Employee Class and a class period beginning July 10, 2002 for the African-American Lower Manager Class;
(2) for plaintiffs’ claims under 42 U.S.C. § 1981,
(A) a class period beginning October 17, 1999 for both classes with respect to compensation claims;
(B) a class period beginning October 17, 1999 for promotion claims by class members alleging denial of promotion from one
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permanent hourly position to another permanent hourly position;
(C) a class period beginning January 1, 2002 for promotion claims by class members alleging denial of promotion from casual positions to permanent positions;
(D) a class period beginning January 1, 2002 for promotion claims by class members alleging denial of promotion from permanent hourly positions to permanent salaried positions; and
(3) for plaintiffs’ FEHA claims, a class period beginning June 13, 2001 for the Minority Employee Class and a class period beginning July 31, 2001 for the African-American Lower Manager Class.
In addition, the Court appoints Valerie Brown, Rick Gonzales, Cynthia Guerrero, Rachel Hutchins, Kelvin Smith, Sr., and Ken Stevenson as Class Representatives of the Minority Employee Class, and appoints Derrick Satchell and Kalini Boykin as Class Representatives of the African-American Lower-Level Manager Class. Plaintiffs are directed to amend the complaint to add a class representative who has failed the BST within 30 days of the filing date of this order.
The Court also appoints as Class Counsel of both the Minority Employee Class and the African-American Lower-Level Manager Class the following law firms: Lieff, Cabraser, Heimann & Bernstein, LLP; Schneider & Wallace; the Law Offices of John Burris; and the Law Offices Kay McKenzie Parker.
The Court further orders that this litigation be bifurcated into separate phases. The first phase will address liability and relief applicable to the class as a whole, including declaratory and injunctive relief, and whether defendant is liable for punitive damages. This phase of the action is certified under Federal Rule of Civil Procedure 23(b)(2). If liability is established, the second phase of this case will address appropriate individual compensatory and equitable relief, including individual entitlement to back and front pay. The precise procedures to be used during the second phase, if any, will be determined later in this litigation.
If plaintiffs wish to amend their complaint to add a class representative with requisite experience with the BST, they must do so no later than October 12, 2005. The parties are ordered to meet and confer concerning a form of class notice, and a plan for providing same to the class members, and present their suggestions to the Court in a joint statement to be filed no later than October 31, 2005 A further case management conference will be held on Friday, November 18, 2005. [No. C-03-2659 SI, # 92; No. C-03-2878 SI, # 61.]
*13 IT IS SO ORDERED.

Parallel Citations

86 Empl. Prac. Dec. P 42,116

Footnotes

1

Defendant argues that plaintiffs have apparently abandoned claims regarding promotions to Senior Manager and compensation and

promotion for Latino Managers, which were alleged in the complaint, and that accordingly those claims should be dismissed.

Plaintiffs respond that they seek only to certify the class claims for which they currently have a sound evidentiary basis, and that

any dismissal is premature. The Court concludes that the appropriate course at this juncture in the litigation is to certify only the

claims that are the subject of plaintiffs’ motion, and if necessary the Court will later dismiss uncertified class claims.

2

FedEx also argues that there is no separate promotion claim because this claim is really based on plaintiffs’ other challenges to

performance evaluation and discipline. However, the fact that plaintiffs’ claims are interrelated does not defeat commonality.

3

The Court assumes that the class periods for the “Minority Lower Management Class” asserted in the complaint are the same for

the proposed “African-American Lower Manager Class.”

4

Plaintiffs filed their consolidated amended complaint on October 17, 2003. The parties do not dispute that October 17, 1999 is the

beginning of the class period for plaintiffs’ Section 1981 compensation claims. In addition, the parties do not discuss the FEHA

class period.

5

Plaintiffs argue that statistically significant disparities dating back to 1999 are relevant to plaintiffs’ promotion claims, because

9

Satchell v. FedEx Corp., Not Reported in F.Supp.2d (2005)

there may be a pattern-and-practice of discrimination that constitutes a “continuing violation.” In any event, plaintiffs contend, time-barred discriminatory acts may be relevant background evidence for timely discrimination claims. See AMTRAK v. Morgan, 536 U.S. 101, 115 n. 9, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Lyons v. England, 307 F.3d 1092, 1107 n. 8 (9th Cir.2002). The Court does not read Morgan’ s footnote so broadly as to support a continuing violation theory for the pattern-and-practice allegations here. Time-barred acts may be relevant to the conduct alleged here, and the Court will apply FRE 401’s relevance standard to this evidence, as the Ninth Circuit held proper in Lyons.

6

The Western Region is now comprised of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico,

Oregon, part of Texas, Utah, Washington, and Wyoming. From 1999 to November 2003, it was comprised of only six states:

California, Hawaii, parts of Washington, Oregon, Alaska, and Nevada.

7

The Court notes that the proposed class definitions contained in plaintiffs’ motion for class certification differ slightly from the

class definitions contained in plaintiffs’ Consolidated Amended Complaint with regard to the job positions listed. Compare

Plaintiffs’ Motion at (i) and Complaint at ¶ 17. This order adopts the class definitions contained in plaintiffs’ motion.

10

 
 Satchell v. Federal Express Corp., Not Reported in F.Supp.2d (2007) 2007 WL 1114010

2007 WL 1114010 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Derrick SATCHELL, Kalini Boykin, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Rachel
Hutchins, Tyrone Merrit, Kelvin Smith, Sr., and Ken Stevenson, on behalf of themselves and all
others similarly situated, Plaintiffs, v.
FEDERAL EXPRESS CORPORATION, a Delaware Corporation, Defendant.
Nos. C03–2659 SI, C 03–2878 SI. |
April 13, 2007.
Attorneys and Law Firms
Guy B. Wallace, Joshua Konecky, Sheryl Ivonne Harris, Todd M. Schneider, Schneider & Wallace, Michael S. Davis, Law Offices of Michael S. Davis, Waukeen Q. McCoy, Law Offices Of Waukeen Q. McCoy, Claire P. Prestel, Danielle Evelyn Leonard, Eve H. Cervantez, James M. Finberg, Rebekah B. Evenson, Chimene I. Keitner, Altshuler Berzon LLP, Daniel E. Barenbaum, Kelly M. Dermody, Lieff Cabraser Heimann & Bernstein, 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.
Barak J. Babcock, Cynthia J. Collins, Frederick L. Douglas, David Andrew Billions, Sandra Colene Isom, Federal Express Corporation, 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 J. Reis, Howard Rice Nemerovski Canady Falk & Rabkin, San Francisco, CA, for Defendant.
[PROPOSED] ORDER (1) PRELIMINARILY
1

APPROVING CLASS ACTION SETTLEMENT, (2) PROVISIONALLY CERTIFYING SETTLEMENT CLASSES, (3) DIRECTING DISTRIBUTION OF
NOTICE OF THE SETTLEMENT, AND (4) SETTING A SCHEDULE FOR THE FINAL
SETTLEMENT APPROVAL PROCESS
SUSAN ILLSTON, United States District Judge.
I. INTRODUCTION *1 The Court certified this case as a class action on September 28, 2005, and the parties completed substantially all pre-trial preparation. Under the supervision of a mediator, Plaintiffs and Defendant FedEx Express (“FedEx Express”) (collectively, the “Parties”) engaged in lengthy settlement discussions over the course of several months in order to negotiate a settlement of this litigation. The terms of the proposed settlement (“Settlement”) are set forth in this Preliminary Approval Order, which has been jointly approved and proposed by both Parties, and in the [Proposed] Consent Decree (“Decree”) (attached hereto as Exhibit 1).
On April 9, 2007, the parties jointly submitted this [Proposed] Order, and Plaintiffs filed a Motion for an Order Preliminarily Approving Class Action Settlement, Provisionally Certifying Settlement Classes, Directing Distribution of Notice of the Settlement, and Setting a Schedule for the Final Settlement Approval Process. In their Motion, Plaintiffs requested that the Court grant conditional certification of settlement classes of African American and Latino hourly employees and African American Operations Managers under Rule 23(b)(3) for monetary relief (with a right to opt out of the settlement pursuant to Fed.R.Civ.Proc. 23(e)(3)) and under Rule 23(b)(2) for injunctive relief (with no opt out right). Plaintiffs also requested that the Court grant preliminary approval to the [Proposed] Consent Decree, including the injunctive relief, proposed plan of allocation to class members, and service payments to Class Representatives and 18 additional declarants (“Declarants”). Plaintiffs also requested that the Court approve a proposed Notice of Proposed Settlement of Class Action Lawsuit and Fairness Hearing (“Class Notice,” attached hereto as Exhibit 2) and a proposed Claim Form (attached hereto as Exhibit 3).
Having reviewed the [Proposed] Consent Decree and Motion, along with the files and records of this case, the

Satchell v. Federal Express Corp., Not Reported in F.Supp.2d (2007) 2007 WL 1114010

Court now FINDS, CONCLUDES, and ORDERS as follows:
II. LITIGATION BACKGROUND On December 12, 2002, Plaintiffs filed the Satchell case in the Alameda County Superior Court, which they amended on May 18, 2003. On June 6, 2003, Defendants removed the case to the Northern District of California pursuant to 28 U.S.C. §§ 1332 and 1441(b). On June 19, 2003, Plaintiffs filed the Caldwell case in the Northern District of California alleging that FedEx Express violated 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 by discriminating against its African American and Latino employees on the basis of race and national origin. On September 25, 2003, the Court issued an order relating the Caldwell and Satchell cases, and on November 13, 2003, pursuant to a stipulation of the parties, the cases were consolidated for all purposes.
Plaintiffs’ First Consolidated Amended Complaint was filed on November 12, 2003, and the operative Third Amended Consolidated Complaint was filed on November 14, 2006. The named plaintiffs are Derrick Satchell, Kalini Boykin, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Rachel Hutchins, Tyrone Merritt, Kelvin Smith, Sr., and Ken Stevenson. Plaintiffs allege that, in violation of Title VII and Section 1981, FedEx Express discriminates against its African American and Latino hourly employees with respect to promotions, compensation, and discipline, and discriminates against its African American Operations Managers with respect to compensation and discipline. Specifically, Plaintiffs allege that FedEx Express’s use of the Basic Skills Test (“BST”) as a selection device for certain hourly jobs violates Title VII because the test has a disparate impact on African Americans and Latinos and cannot be justified by business necessity, and that FedEx Express uses overly subjective practices with respect to promotions, compensation, and discipline that both allow intentional discrimination against African Americans and Latinos and have a disparate impact on African Americans and Latinos which cannot be justified by business necessity.
*2 FedEx Express denied, and continues to deny, all of the allegations in the complaint, and specifically denies that it has discriminated against its African American and Latino employees, or that it has any liability in this matter.
On September 28, 2005, the Court certified two classes:
2

1. A “Minority Employee Class” consisting of all African–American and Latino Handlers, Freight Handlers, Material Handlers, Checker–Sorters, Customer Service Agents, Couriers, Swing Drivers, Ramp Transport Drivers, Ramp Area Drivers, Shuttle Drivers, Dangerous Goods Agents, Information Agents, Operations Agents, Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Input Auditors, Team Leaders, and Dispatchers, working in defendant’s Western Region, who are or were employed during the class period, who allege claims of employment discrimination in violation of Title VII of the 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 Employment and Housing Act; and
2. An “African–American Lower–Level Manager Class” consisting of all African–American 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 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 Act.
The parties vigorously litigated the case, including filing numerous motions to compel discovery, summary judgment motions against six of the Class Representatives, and 21 motions in limine. The parties also substantially completed pretrial preparation, including the exchange of proposed exhibits and verdict forms.
III. CERTIFICATION OF SETTLEMENT CLASSES For settlement purposes only, the Parties have proposed conditional certification of the following settlement classes:
For purposes of the injunctive and declaratory relief provided in the Decree, injunctive-relief classes certified under Federal Rule of Civil Procedure 23(b)(2) and consisting of:
1. All Minority employees of the AGFS or DGO Divisions of FedEx Express who are or were employed in the position of Handlers, Freight Handlers, Material Handlers, Checker–Sorters, Customer Service Agents,

Satchell v. Federal Express Corp., Not Reported in F.Supp.2d (2007) 2007 WL 1114010

Couriers, Swing Drivers, Ramp Transport Drivers, Ramp Area Drivers, Shuttle Drivers, Dangerous Goods Agents, Information Agents, Operations Agents, Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Import Auditors, Team Leaders, and Dispatchers in the COMATs that comprise the Western Region at any time between October 17, 1999, and the end of the Decree.

As with the Classes certified on September 27, 2005, the proposed injunctive-relief and Settlement Classes allege claims for race and national origin discrimination brought under the 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 Employment and Housing Act.

2. All African American employees of the AGFS and DGO Divisions of FedEx Express who are or were employed in the position of Operations Managers in the COMATs that comprise the Western Region at any time between October 17, 1999, and the end of the Decree.
*3 For purposes of the monetary relief provided in the Decree, a Settlement Class certified under Federal Rule of Civil Procedure 23(b)(3) and consisting of:
3. All Minority employees of the AGFS or DGO Divisions of FedEx Express who are or were employed in the position of Handlers, Freight Handlers, Material Handlers, Checker–Sorters, Customer Service Agents, Couriers, Swing Drivers, Ramp Transport Drivers, Ramp Area Drivers, Shuttle Drivers, Dangerous Goods Agents, Information Agents, Operations Agents, Ramp Agents, Service Assurance Agents, Truck Control Agents, Trace Representatives, Import Auditor, Team Leaders, and Dispatchers in the COMATs that comprised the Western Region at any time between October 17, 1999, and the Preliminary Approval Date, who do not timely opt out. All African American employees of the AGFS or DGO Divisions of FedEx Express who are or were employed in the position of Operations Managers in the COMATs that comprised the Western Region at any time between October 17, 1999, and the Preliminary Approval Date who do not timely opt out.
The Court previously considered and ruled upon Plaintiffs’ Motion for Class Certification, and found that the classes proposed by Plaintiffs satisfied all requirements of Rule 23(a) and Rule 23(b) (2). The differences between the classes certified by the Court in September 2005 and the Classes certified by this order are that (1) the Classes certified by this order are divided into (a) opt-out Settlement Classes under Rule 23(b)(3) for monetary relief and (b) non-opt-out Classes under Rule 23(b)(2) with respect to injunctive relief; and (2) the Class Periods for membership in the respective Classes are defined as (a) October 17, 1999 through the date of Preliminary Approval for the Monetary Relief Settlement Class, and (b) October 17, 1999 through the end of the term of the Consent Decree for the Injunctive Relief Classes.
3

Based on the previously filed class certification papers, and this Court’s prior findings and rulings thereon, the Court hereby FINDS and CONCLUDES that the injunctive-relief classes set forth above satisfy all of the requirements for certification under Rule 23(a) and Rule 23(b)(2), and the COURT hereby CERTIFIES those injunctive-relief classes.
Based on the previously filed class certification papers, and this Court’s prior findings and rulings thereon, the Court also hereby FINDS and CONCLUDES that the monetary-relief Settlement Class described above satisfies all of the requirements for certification under Rule 23(a). In addition, having carefully considered the papers filed in connection with this motion, the entire record in this case, the arguments of counsel, and the requirements of Rule 23(b)(3), the Court FINDS and CONCLUDES that the monetary-relief Settlement Class satisfies the requirements for certification under Rule 23(b)(3). Questions of law or fact common to the class predominate over individualized issues, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Because certification of the monetary-relief Settlement Class is proposed in the context of a settlement, the Court need not inquire whether the case, if tried as a class action, would present intractable management problems. The Court hereby CERTIFIES the monetary-relief Settlement Class as set forth above.
IV. APPOINTMENT OF CLASS REPRESENTATIVES AND CLASS COUNSEL *4 The Court previously found eight of the Class Representatives to be typical and adequate, and appointed them as Class Representatives. In its Class Certification Order, the Court ordered Plaintiffs to add a Class Representative who had a claim regarding the BST, and Plaintiff did so. The Court hereby finds that the newlynamed Class Representative, Tyrone Merritt, is also typical and adequate, and may serve as a Class Representative. Accordingly, for settlement purposes, this Court hereby appoints Derrick Satchell and Kalini Boykin

Satchell v. Federal Express Corp., Not Reported in F.Supp.2d (2007) 2007 WL 1114010

as Class Representatives for the Operations Manager Class and Valerie Brown, Rick Gonzales, Cynthia Guerrero, Rachel Hutchins, Tyrone Merritt, Kelvin Smith, Sr., and Ken Stevenson as Class Representatives for the Minority Employee Class.
This Court previously appointed seven law firms as Class Counsel. Plaintiffs have proposed that Barry Goldstein be appointed additional Class Counsel. Mr. Goldstein has extensive experience and expertise in litigating, settling, and monitoring cases of this sort. Accordingly, for purposes of settlement and conditional certification of the Settlement Class, the following are appointed Class Counsel: Altshuler Berzon LLP; Barry Goldstein, of counsel to Goldstein, Demchak, Bailer, Borgen, and Dardarian; Law Office of John Burris; Law Offices of Michael S. Davis; Law Offices of Waukeen McCoy; Law Offices of Kay McKenzie Parker; Lieff, Cabraser, Heimann & Bernstein, LLP; and Schneider & Wallace.
V. PRELIMINARY APPROVAL OF CONSENT DECREE The Court has reviewed the terms of the [Proposed] Consent Decree attached as Exhibit 1, including specifically the injunctive relief provisions and the plan of allocation, and the Plaintiffs’ description of the settlement in the Motion papers. The Court has also read and considered the declarations of James M. Finberg and Barry Goldstein in support of preliminary approval. Based on review of those papers, and the Court’s familiarity with this case, the Court concludes that the settlement and Consent Decree are the result of extensive, arms’—length negotiations between the Parties after lengthy and exhaustive litigation, including thorough discovery and extensive motion practice and pre-trial preparation. The assistance of an experienced mediator in the settlement process confirms that the settlement is non-collusive. Based on that review, and the Court’s familiarity with the issues in the case, the Court concludes that the proposed Consent Decree has no obvious defects and is within the range of possible settlement approval, such that notice to the Class is appropriate.
IT IS THEREFORE ORDERED THAT:
1. The [Proposed] Consent Decree and the settlement it embodies are hereby PRELIMINARILY APPROVED. Final approval and entry of the Consent Decree is subject to the hearing of any objections of members of the Settlement Class to the proposed settlement embodied in the Consent Decree.
4

2. Pending the determination of the fairness of the Consent Decree, all further litigation of this action is hereby STAYED, the trial scheduled to begin on May 7, 2007 is POSTPONED indefinitely and all rulings on all pending motions before the Court are hereby DEFERRED.
VI. APPROVAL OF THE FORM AND MANNER OF DISTRIBUTING CLASS NOTICE AND CLAIM FORM *5 The Parties have also submitted for this Court’s approval a proposed Class Notice and a proposed Claim Form, which the Court has carefully reviewed.
The proposed Class Notice appears to be the best notice practical under the circumstances and appears to allow Class Members a full and fair opportunity to consider the proposed Settlement and develop a response. The proposed plan for distributing the Class Notice and Claim Form, which is to be attached to the Class Notice, likewise appears to be a reasonable method calculated to reach all members of the Class who would be bound by the Settlement. Under this plan, the Claims Administrator will distribute the Class Notice to Settlement Class Members by first class U.S. Mail. There appears to be no additional method of distribution that would be reasonably likely to notify Class Members who may not receive notice pursuant to the proposed distribution plan.
The Class Notice fairly, plainly, accurately, and reasonably informs Class Members of: (1) appropriate information about the nature of this litigation, the settlement class, the identity of Class Counsel, and the essential terms of the Settlement and Decree, including injunctive relief and the plan of allocation; (2) appropriate information about Class Counsel’s forthcoming application for attorneys’ fees, the proposed service payments to Class Representatives and Declarants, and other payments that will be deducted from the settlement fund; (3) appropriate information about how to participate in the Settlement; (4) appropriate information about this Court’s procedures for final approval of the Settlement Agreement and Settlement, and about class members’ right to appear through counsel if they desire; (5) appropriate information about how to challenge or opt-out of the Settlement, if they wish to do so; and (6) appropriate instructions as to how to obtain additional information regarding this litigation, the Settlement, and the Decree.

Satchell v. Federal Express Corp., Not Reported in F.Supp.2d (2007) 2007 WL 1114010

Similarly, the proposed Claim Form appears to allow members of the Settlement Classes a full and fair opportunity to submit a claim for proceeds in connection with the Settlement. Moreover, the Claim Form fairly, accurately, and reasonably informs Settlement Class Members that failure to complete and submit a Claim Form, in the manner and time specified, shall constitute a waiver of any right to obtain any share of the Settlement Payment.
The Court, having reviewed the proposed Class Notice and Claim Form (collectively “Notice Materials”), finds and concludes that the proposed plan for distributing them will provide the best notice practicable, satisfies the notice requirements of Rule 23(e), and satisfies all other legal and due process requirements. Accordingly, the Court hereby ORDERS as follows:

Claims Administrator shall mail, via first class postage, the Notice Materials to all known potential Settlement Class members at their last known address or at the most recent address that may have been obtained through the NCOA. The Claims Administrator will trace all returned undeliverable notices and re-mail to the most recent address available.
F. The Claims Administrator shall take all reasonable steps to obtain the correct address of any Class Members for whom the notice is returned by the post office as undeliverable and otherwise to provide the Class Notice. The Claims Administrator shall notify Class Counsel of any mail sent to Class Members that is returned as undeliverable after the first mailing as well as any such mail returned as undeliverable after any subsequent mailing(s).

A. The form and manner of distributing the proposed Notice Materials are hereby approved.
B. Promptly following the entry of this Order, the Claims Administrator shall prepare final versions of the Notice Materials, incorporating into the Notice the relevant dates and deadlines set forth in this Order.
*6 C. Within twenty days following the Preliminary Approval Date, FedEx Express shall provide the Claims Administrator with computer readable information, in a format acceptable to the Claims Administrator, that contains the full names, social security numbers, FedEx Express employee ID, last known addresses and phone numbers, start dates and, as applicable, end dates of employment with FedEx Express from October 17, 1999 to the date of Preliminary Approval in class positions, class positions held (and date for each position, and status as casual, part-time, or full time), first date that the employee took and failed at least one portion of the BST, and the date of any subsequent passage of all portions of the BST.
D. Within twenty days following the Preliminary Approval Date, Class Counsel shall provide the Claims Administrator with a computer readable list of all known potential Settlement Class members and their mailing addresses. Prior to the mailing of the Notices, the Claims Administrator will combine these lists of potential Settlement Class members received from FedEx Express and Class Counsel and update any new address information for potential class members as may be available through the National Change of Address (“NCOA”) system.
E. Within 40 days of the Preliminary Approval Date, the

G. The Claims Administrator shall take all other actions in furtherance of claims administration as are specified in the Decree.
VII. Procedures For Final Approval Of The Settlement
A. Fairness Hearing The Court hereby schedules a hearing to determine whether to grant final certification of the Settlement Classes, and final approval of the Consent Decree (including the proposed plan of allocation, injunctive relief, payment of attorneys’ fees and costs, and service payments to the Class Representatives and the Declarants) (the “Fairness Hearing”) for August 9, 2007 (date) at 3:30 p.m. (time) [August 10, 2007, at 9:00 am, or another day and time approximately 100 days from Preliminary Approval Date]. If any attorney will be representing a class member objecting to the Consent Decree, the attorney shall file a notice of appearance with the Court and serve counsel for all parties at least 14 days before the Fairness Hearing.
B. Deadline To Request Exclusion From The Settlement *7 Class members may exclude themselves, or opt-out, of the monetary relief provisions of the class settlement. Any

5

Satchell v. Federal Express Corp., Not Reported in F.Supp.2d (2007) 2007 WL 1114010

request for exclusion must be in the form of a written “opt-out” statement sent to the Claims Administrator. Information on how to opt-out of the settlement shall be made available by the Claims Administrator. A person wishing to opt-out must sign a statement which includes the following language:
I understand that I am requesting to be excluded from the class monetary settlement and 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 monetary settlement, I may bring a separate legal action seeking damages, but may 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 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.
To be effective, any opt-out statement must be sent to the Claims Administrator at the address provided in the Class Notice via First Class United States Mail, postmarked no later than 45 days after the Claims Administrator first mails the Class Notice to the Class. Only those class members who request exclusion in the time and manner set forth herein shall be excluded from the class for monetary relief purposes. Pursuant to Federal Rules of Civil Procedure 23(b)(3) and (c)(2), the terms and provisions of the Consent Decree concerning monetary relief shall have no binding effect on any person who makes a timely request for exclusion in the manner required by this Order.
The Claims Administrator shall date stamp the original of any opt-out statement and serve copies on both FedEx Express and Class Counsel via facsimile and overnight delivery within two (2) business days of receipt of such statement. The Claims Administrator will also file the original opt-out statements with the Clerk of the Court no later than five (5) days prior to the scheduled Fairness Hearing date. The Claims Administrator shall retain
6

copies of all opt-out statements until such time as it has completed its duties and responsibilities under this Decree.
Class members shall be permitted to withdraw or rescind their opt-out statements by submitting a “rescission of opt-out” statement to the Claims Administrator. The rescission of opt-out statement shall include the following language:
I previously submitted an opt-out statement seeking exclusion from the class monetary 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 the claims settlement fund and may not bring a separate legal action against FedEx Express seeking damages with respect to the Released Claims.
A class member wishing to submit such a rescission statement shall sign and date the statement and cause it to be delivered to the Claims Administrator no later than 52 days after the Claims Administrator first mails Class Notice.
*8 The Claims Administrator shall stamp the date received on the original of any rescission of opt-out statement and serve copies to counsel for FedEx Express and Class Counsel via facsimile and overnight mail no later than two business days after receipt thereof and shall file the date-stamped originals with the Clerk of the Court no later than five business days prior to the date of the Fairness Hearing. The Claims Administrator shall retain copies of all rescissions of opt-out statements until such time as the Claims Administrator is relieved of its duties and responsibilities under this Decree.
C. Defendant’s Right to Rescind Agreement If the number of individuals who opt out of the Settlement Class in the manner provided in this Order exceeds 50 (not including persons who have, before April 6, 2007, filed and served lawsuits, other than the Satchell and

Satchell v. Federal Express Corp., Not Reported in F.Supp.2d (2007) 2007 WL 1114010

Caldwell lawsuits, alleging race or national origin discrimination in compensation, promotion, or discipline that allegedly occurred during the Class Period), then FedEx Express, at its sole option, shall have the right to void the Settlement on the fifth business day after the Court requires individuals to return rescission of class member opt-outs. If FedEx Express exercises this option, all of FedEx Express’s obligations under the Consent Decree shall cease to be of any force and effect, and the Consent Decree and any orders entered in connection therewith shall be vacated, rescinded, canceled, and annulled, and the parties shall return to the status quo in the Civil Action as if the parties had not entered into the Consent Decree. In addition, in such event, the Consent Decree and all negotiations, court orders, and proceedings relating thereto shall be without prejudice to the rights of any and all parties thereto, and evidence relating to the Consent Decree and all negotiations shall not be admissible or discoverable in the Civil Action or otherwise.
D. Deadline for Filing Objections to Settlement and [Proposed] Consent Decree Any Class Member who wishes to object to the fairness, reasonableness or adequacy of the Settlement Agreement or the Settlement must do so in writing, although Class Members objecting to the Settlement may also appear at the Fairness Hearing. To be considered, any objection to the final approval of the Consent Decree must state the basis for the objection and must be timely filed in writing, along with any other papers the class member wishes the Court to consider, with the Claims Administrator, at the address provided in the Class Notice, via First–Class United States mail, postage prepaid, postmarked no later than no later than 45 days after the date that Class Notice is first mailed by the Claims Administrator. An objector who wishes to appear at the Fairness Hearing, either in person or through counsel hired by the objector, must state his or her intention to do so at the time the objector submits his/her written objections. Any member of the class who does not timely file and serve such a written objection shall not be permitted to raise such objection, except for good cause shown, and any member of the class who fails to object in the manner prescribed herein shall be deemed to have waived, and shall be foreclosed from raising, any such objection.
*9 The Claims Administrator shall stamp the date received on the original of any objection and send copies of each objection to the Parties by facsimile and overnight delivery not later than two business days after receipt
7

thereof. The Claims Administrator shall also file the datestamped originals of any objections with the Clerk of Court within three business days after the time for filing objections ends.
If objections are filed, Class Counsel or counsel for FedEx Express may engage in discovery concerning the filed objections prior to the Fairness Hearing.
E. Deadline For Submitting Claims Form A Class Member who does not opt out will be eligible to receive his or her proportionate share of the settlement benefit. To receive this share, such a Class Member must properly and timely complete a Claim Form in accordance with the terms of the Consent Decree. To be effective, the Claim Form must be sent to the Claims Administrator at the address provided in the Class Notice by First Class United States Mail, postage prepaid, postmarked no later than 70 days after the initial mailing of the Class Notice to class members. Failure to postmark a completed Claim Form by the Claim Filing Deadline shall bar the Settlement Class member from receiving any monetary award pursuant to the proposed Consent Decree. Settlement Class members who do not file timely and valid Claim Forms shall nonetheless be bound by the judgment and release in this action as set forth in the proposed Consent Decree, unless that Settlement Class member timely opts-out of the Settlement.
It shall be the sole responsibility of each member of the Settlement Class who seeks a monetary award to notify the Claims Administrator if the class member changes his or her address. Failure of a Settlement Class member to keep the Claims Administrator apprised of his or her address may result in the claim being denied or forfeited.
F. Deadline for Submitting Motion Seeking Final Approval. No later than 35 days before the Fairness Hearing, Plaintiffs shall file a Motion for Final Approval of the Settlement and Consent Decree. On or before one week before the Fairness Hearing, the Parties may file with the Court a reply brief responding to any filed objections.

Satchell v. Federal Express Corp., Not Reported in F.Supp.2d (2007) 2007 WL 1114010

G. Deadline For Petition for Attorneys Fees Class Counsel shall file with this Court their petition for an award of attorneys’ fees and reimbursement of expenses no later than June 22, 2007. Class Counsel may file a reply to any opposition memorandum filed by any objector no later than one week before the Fairness Hearing.

IX. APPOINTMENT OF CLAIMS ADMINISTRATOR Settlement Services, Inc. of Tallahassee, Florida is hereby appointed Claims Administrator to carry out the duties set forth in this Order and the Consent Decree.

H. Deadline for Petition For Approval Of Service Payments Class Counsel shall file with this Court their petition for an award of service payments to the nine Class Representatives and to the 18 Declarants no later than 35 days before the Fairness Hearing. Class Counsel may file a reply to any opposition memorandum filed by an objector no later than one week before the Fairness Hearing.
VIII. PLAINTIFFS’ AND CLASS MEMBERS’ RELEASE *10 If, at the Fairness Hearing, this Court grants Final Approval to the Settlement and Consent Decree, Named Plaintiffs and each individual Settlement Class Member who does not timely opt out will release claims, as set forth in Section VIII of the Consent Decree, by operation of this Court’s entry of the Judgment and Final Approval, regardless of whether he or she submits a Claim Form or receives any share of the Settlement Fund.
End of Document

X. DISPOSITION IF SETTLEMENT DOES NOT BECOME FINAL Should this Court or any reviewing court on direct appeal and/or on writ of certiorari to the Supreme Court of the United States from a direct appeal to the U.S. Court of Appeals for the Ninth Circuit refuse to approve this Consent Decree or require modification to this Decree, the Decree (and the stipulated certification of settlement classes) shall be null and void, inadmissible and unusable in any future proceeding and the Decree shall not be considered a binding settlement agreement, unless Plaintiffs and FedEx Express each expressly and voluntarily approve in writing any such required modification by this Court or by the reviewing Court.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 1114010

8

 
 Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 1 of 83
ADRMOP,CLOSED,CONSOL,E−Filing,PRVADR,RELATE,STAYED
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:03−cv−02878−SI

Caldwell et al v. Fedex Corporation et al Assigned to: Hon. Susan Illston Lead case: 3:03−cv−02659−SI Member case: (View Member Case) Case in other court: USCA, 10−15197 Cause: 42:2000e Job Discrimination (Employment)
Special Master
Edward Swanson Special Master for Alvarado v. FedEx, C 04−0098 SI

Date Filed: 06/19/2003 Date Terminated: 08/15/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff
Patricia Caldwell on behalf of herself and all others similarly situated

represented by Guy Burton Wallace Schneider Wallace Cottrell Konecky Wotkyns LLP 2000 Powell Street Suite 1400 Emeryville, CA 94608 415−421−7100 Fax: 415−421−7105 Email: gwallace@schneiderwallace.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Waukeen Quandrico McCoy McCoy Law Firm, P.C. 111 Maiden Lane 6th Floor San Francisco, CA 94108 415−675−7705 Fax: 415−675−2530 Email: mail@mccoyslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo Reed Smith LLP 355 South Grand Avenue Suite 2900 LA, CA 90071 213−457−8000 Email: Barbra.Diallo@cbre.com ATTORNEY TO BE NOTICED

Bill Lann Lee Lewis Feinberg Lee & Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: blee@creeclaw.org TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner Altshuler Berzon LLP

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 2 of 83
177 Post St., Ste. 300 San Francisco, CA 94108 (415) 421−7151 Email: ckeitner@altshulerberzon.com ATTORNEY TO BE NOTICED
Claire P. Prestel SEIU 1800 Massachusetts Ave. NW Ste 600 Washington, DC 20036 230−730−7468 Email: claire.prestel@seiu.org ATTORNEY TO BE NOTICED
Daniel E. Barenbaum Berman Tabacco 44 Montgomery Street Suite 650 San Francisco, CA 94104 415−433−3200 Fax: 415−433−6382 Email: dbarenbaum@bermantabacco.com TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED
Danielle Evelyn Leonard Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: dleonard@altshulerberzon.com ATTORNEY TO BE NOTICED
Eve Hedy Cervantez Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421−7151 Fax: 415−362−8064 Email: ecervantez@altshulerberzon.com ATTORNEY TO BE NOTICED
James M. Finberg Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: jfinberg@altshulerberzon.com ATTORNEY TO BE NOTICED
Kelly M. Dermody Leiff Cabraser Heimann & Bernstein LLP 275 Battery Street, 29th Floor San Francisco, CA 94111−3339 415−956−1000 Fax: 415−956−1008 Email: kdermody@lchb.com ATTORNEY TO BE NOTICED
Lexi Joy Hazam , Esq. Lieff Cabraser Heimann and Bernstein, LLP

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 3 of 83
275 Battery Street 29th Floor San Francisco, CA 94111−3339 415−956−1000 Fax: 415−956−1008 Email: lhazam@lchb.com ATTORNEY TO BE NOTICED
Michael S. Davis Law Offices of Michael S. Davis 345 Hill Street San Francisco, CA 94114 (415) 282−4315 Fax: (415) 358−5576 Email: msdlegal@comcast.net ATTORNEY TO BE NOTICED
Rebekah B. Evenson Bay Area Legal Aid 1035 Market Street 6th Floor San Francisco, CA 94103 415−982−1300 Fax: 415−982−4243 Email: revenson@baylegal.org ATTORNEY TO BE NOTICED
Sheryl Ivonne Harris Schneider & Wallace 1700 California Street Suite 340 San Francisco, CA 94109 415−440−3440 Fax: 415−440−3640 Email: sharris@schneiderwallace.com ATTORNEY TO BE NOTICED
Todd Michael Schneider Schneider Wallace Cottrell Konecky Wotkyns LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 415−421−7100 Fax: 415−421−7105 Email: tschneider@schneiderwallace.com ATTORNEY TO BE NOTICED
John L. Burris The Law Offices of John L. Burris Airport Corporate Centre 7677 Oakport Street, Suite 1120 Oakland, CA 94621 510−839−5200 Fax: 510−839−3882 Email: john.burris@johnburrislaw.com ATTORNEY TO BE NOTICED
Kay McKenzie Parker LAW OFFICES OF KAY McKENZIE PARKER 225 Bush Street, 16th Floor San Francisco, CA 94104 415−227−9622 Fax: 415−227−4522 Email: kaymparker@earthlink.net

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 4 of 83

ATTORNEY TO BE NOTICED

Plaintiff
John Conwell on behalf of himself and all others similarly situated

represented by Guy Burton Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Michael S. Davis (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 5 of 83

(See above for address) ATTORNEY TO BE NOTICED

Sheryl Ivonne Harris (See above for address) ATTORNEY TO BE NOTICED

Todd Michael Schneider (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Cynthia Guerrero on behalf of herself and all others similarly situated

represented by Guy Burton Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Michael S. Davis (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 6 of 83

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Sheryl Ivonne Harris (See above for address) ATTORNEY TO BE NOTICED

Todd Michael Schneider (See above for address) ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Rachel Hutchins on behalf of herself and all others similarly situated

represented by Guy Burton Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 7 of 83

Plaintiff
Mariel Lawson Janice Lewis on behalf of herself and all others similarly situated

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED
Michael S. Davis (See above for address) ATTORNEY TO BE NOTICED
Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED
Sheryl Ivonne Harris (See above for address) ATTORNEY TO BE NOTICED
Todd Michael Schneider (See above for address) ATTORNEY TO BE NOTICED
Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED
Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED
represented by Guy Burton Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED
Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED
Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED
Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED
Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED
Danielle Evelyn Leonard (See above for address)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 8 of 83

ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Michael S. Davis (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Sheryl Ivonne Harris (See above for address) ATTORNEY TO BE NOTICED

Todd Michael Schneider (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Rick Gonzales on behalf of himself and all others similarly situated

represented by Guy Burton Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 9 of 83

ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Michael S. Davis (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Sheryl Ivonne Harris (See above for address) ATTORNEY TO BE NOTICED

Todd Michael Schneider (See above for address) ATTORNEY TO BE NOTICED

Waukeen Quandrico McCoy (See above for address) ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ken Stevenson on behalf of himself and all others similarly situated

represented by Guy Burton Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 10 of 83

ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Michael S. Davis (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Sheryl Ivonne Harris (See above for address) ATTORNEY TO BE NOTICED

Todd Michael Schneider (See above for address) ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kimelia Wooten

represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 11 of 83

ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Xsiomara Willis

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 12 of 83

TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Darnell Williams

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 13 of 83

(See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Shelia Tyler

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 14 of 83

(See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Shirley K. Steward

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 15 of 83

(See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kelvin Smith Sr.

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 16 of 83

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mari Shaffer

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 17 of 83

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Darryl Payton

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 18 of 83

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Peter Paris

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 19 of 83

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ernestine Owens

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 20 of 83

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rosa N. Olmos

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 21 of 83

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mike O. Odigie

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 22 of 83

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lavaedra Newton

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 23 of 83

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Yvonne Murray

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 24 of 83

Plaintiff Rodney Morton

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Shirley McCray

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 25 of 83

ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Emory McClendon

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 26 of 83

ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Cynthia Jackson

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 27 of 83

TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff David Hernandez

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 28 of 83

(See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Janet Haynes

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 29 of 83

(See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Bradford Hall

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 30 of 83

(See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Glenda Gray

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 31 of 83

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lawrence Estrada

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 32 of 83

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Melanie Dennis

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 33 of 83

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Desmond Carter

represented by Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kevyn Cameron

represented by Waukeen Quandrico McCoy (See above for address)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 34 of 83

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Alvin Buckman

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 35 of 83

(See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Willie Bryant III

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 36 of 83

(See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Charles Anderson

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 37 of 83

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Derrick Satchell

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 38 of 83

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Janice Lewis

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 39 of 83

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED

James M. Finberg (See above for address) ATTORNEY TO BE NOTICED

Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED

Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED

Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Marial Lawson

represented by Waukeen Quandrico McCoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbra Williams Diallo (See above for address) ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) TERMINATED: 03/09/2007 ATTORNEY TO BE NOTICED

Chimene I. Keitner (See above for address) ATTORNEY TO BE NOTICED

Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Barenbaum (See above for address) TERMINATED: 11/02/2007 ATTORNEY TO BE NOTICED

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 40 of 83

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED
Eve Hedy Cervantez (See above for address) ATTORNEY TO BE NOTICED
James M. Finberg (See above for address) ATTORNEY TO BE NOTICED
Kay McKenzie Parker (See above for address) ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED
Lexi Joy Hazam , Esq. (See above for address) ATTORNEY TO BE NOTICED
Rebekah B. Evenson (See above for address) ATTORNEY TO BE NOTICED
Guy Burton Wallace (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Fedex Corporation a Delaware corporation

represented by Barak J. Babcock Federal Express Corporation 3620 Hacks Cross Road Building B, 3rd Floor Memphis, TN 38125 901−434−8562 Fax: 901−492−9930 Email: barak.babcock@fedex.com ATTORNEY TO BE NOTICED
George A. Riley O'Melveny & Myers LLP 2 Embarcadero Center 28th Floor San Francisco, CA 94111 415/984−8741 Fax: 415−984−8701 Email: griley@omm.com ATTORNEY TO BE NOTICED
Kamili Williams Dawson Seyfarth Shaw 560 Mission Street, Suite 3100 San Francisco, CA 94105 415−397−2823 Fax: 415−397−8549 Email: kdawson@seyfarth.com ATTORNEY TO BE NOTICED

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Defendant
Fedex Express a Delaware Corporation

Sandra Colene Isom Federal Express Corporation 3620 Hacks Cross Road Building B 3rd Floor Memphis, TN 38125 901/434−8526 Fax: 901−434−9271 Email: scisom@fedex.com ATTORNEY TO BE NOTICED
Tom A. Jerman O'Melveny & Myers LLP 275 Battery Street, 26th Floor San Francisco, CA 94111−3344 415−984−8700 Fax: 415−984−8701 ATTORNEY TO BE NOTICED
David James Reis Arnold & Porter Kaye Scholer LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111−4024 415−471−3100 Fax: 415−471−3400 Email: david.reis@apks.com ATTORNEY TO BE NOTICED
Francis J. Ortman , III Seyfarth Shaw LLP 560 Mission St., Suite 3100 San Francisco, CA 94105 415−397−2823 Fax: 415−397−8549 Email: fortman@seyfarth.com ATTORNEY TO BE NOTICED
Gilmore F. Diekmann , Jr. Seyfarth Shaw LLP 560 Mission Street, Suite 3100 San Francisco, CA 94105 415−397−2823 Fax: 415−397−8549 Email: gdiekmann@seyfarth.com ATTORNEY TO BE NOTICED
represented by Cynthia J. Collins Federal Express Corporation Legal Department 3620 Hacks Cross Road Building B, 3rd Floor Memphis, TN 38125 901−434−8544 Fax: 901−434−9278 ATTORNEY TO BE NOTICED
David Andrew Billions , FedEx Express Corporation Litigation 3620 Hacks Cross R. Building B, 3rd Floor Memphis, TN 38125

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901−434−8533 Fax: 901−434−9271 Email: dabillions@fedex.com ATTORNEY TO BE NOTICED

George A. Riley (See above for address) ATTORNEY TO BE NOTICED

Tom A. Jerman (See above for address) ATTORNEY TO BE NOTICED

David James Reis (See above for address) ATTORNEY TO BE NOTICED

Francis J. Ortman , III (See above for address) ATTORNEY TO BE NOTICED

Gilmore F. Diekmann , Jr. (See above for address) ATTORNEY TO BE NOTICED

Kamili Williams Dawson (See above for address) ATTORNEY TO BE NOTICED

Defendant
Feddex Ground Package System, Inc. a Delaware Corporation

represented by David James Reis (See above for address) ATTORNEY TO BE NOTICED

George A. Riley (See above for address) ATTORNEY TO BE NOTICED

Kamili Williams Dawson (See above for address) ATTORNEY TO BE NOTICED

Sandra Colene Isom (See above for address) ATTORNEY TO BE NOTICED

Tom A. Jerman (See above for address) ATTORNEY TO BE NOTICED

Francis J. Ortman , III (See above for address) ATTORNEY TO BE NOTICED

Gilmore F. Diekmann , Jr. (See above for address) ATTORNEY TO BE NOTICED

Defendant Fedex Services

represented by George A. Riley (See above for address) ATTORNEY TO BE NOTICED

Kamili Williams Dawson

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(See above for address) ATTORNEY TO BE NOTICED

Sandra Colene Isom (See above for address) ATTORNEY TO BE NOTICED

Tom A. Jerman (See above for address) ATTORNEY TO BE NOTICED

David James Reis (See above for address) ATTORNEY TO BE NOTICED

Francis J. Ortman , III (See above for address) ATTORNEY TO BE NOTICED

Gilmore F. Diekmann , Jr. (See above for address) ATTORNEY TO BE NOTICED

Defendant Fedex Ground

represented by George A. Riley (See above for address) ATTORNEY TO BE NOTICED

Tom A. Jerman (See above for address) ATTORNEY TO BE NOTICED

David James Reis (See above for address) ATTORNEY TO BE NOTICED

Francis J. Ortman , III (See above for address) ATTORNEY TO BE NOTICED

Gilmore F. Diekmann , Jr. (See above for address) ATTORNEY TO BE NOTICED

Kamili Williams Dawson (See above for address) ATTORNEY TO BE NOTICED

Miscellaneous Waukeen Q. McCoy

represented by Waukeen Quandrico McCoy (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/19/2003
06/19/2003

# Docket Text
1 COMPLAINT Summons Issued against Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express (Filing fee $150 receipt number 3348711). Filed by Patricia Caldwell, John Conwell, Rick Gonzales, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Ken Stevenson. (ci, ) Modified on 10/30/2008 (rcs, COURT STAFF). (Entered: 06/25/2003)
CASE DESIGNATED for Electronic Filing. (ci, ) (Entered: 06/25/2003)

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06/19/2003 06/19/2003 06/19/2003 06/25/2003
08/25/2003 08/25/2003
08/25/2003 08/25/2003 08/25/2003 08/25/2003 08/25/2003 08/25/2003

2 ADR SCHEDULING ORDER: Case Management Statement due by 9/11/2003. Case Management Conference set for 9/25/2003 at 11:00 AM. (ci, ) Additional attachment(s) added on 6/25/2003 (ci, ). (Entered: 06/25/2003)
3 NOTICE of Related Case C 03−2659 SI by Patricia Caldwell, John Conwell, Rick Gonzales, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Ken Stevenson. (ci, ) (Entered: 06/25/2003)
Summons Issued as to Feddex Ground Package System, Inc. ; Fedex Corporation ; Fedex Express (ci, ) (Entered: 06/25/2003)
4 First AMENDED COMPLAINT against Fedex Services, Fedex Ground, Fedex Corporation, Fedex Express. Filed by Ken Stevenson, Rachel Hutchins, Cynthia Guerrero, Rick Gonzales, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Patricia Caldwell, John Conwell. (Wallace, Guy) (Entered: 06/25/2003)
5 OBJECTIONS to re 3 NOTICE OF RELATED CASES by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Diekmann, Gilmore) (Entered: 08/25/2003)
6 WAIVER OF SERVICE Returned Executed, by Charles Anderson, Willie Bryant III, Alvin Buckman, Patricia Caldwell, Kevyn Cameron, Desmond Carter, John Conwell, Melanie Dennis, Lawrence Estrada, Rick Gonzales, Glenda Gray, Cynthia Guerrero, Bradford Hall, Janet Haynes, David Hernandez, Rachel Hutchins, Cynthia Jackson, Marial Lawson, Janice Lewis, Emory McClendon, Shirley McCray, Rodney Morton, Yvonne Murray, Lavaedra Newton, Mike O. Odigie, Rosa N. Olmos, Ernestine Owens, Peter Paris, Darryl Payton, Derrick Satchell, Mari Shaffer, Kelvin Smith Sr., Ken Stevenson, Shirley K. Steward, Shelia Tyler, Darnell Williams, Xsiomara Willis, Kimelia Wooten. Feddex Ground Package System, Inc. waiver sent on 7/29/2003, answer due 9/29/2003; Fedex Corporation waiver sent on 7/29/2003, answer due 9/29/2003; Fedex Express waiver sent on 7/29/2003, answer due 9/29/2003; Fedex Ground waiver sent on 7/29/2003, answer due 9/29/2003; Fedex Services waiver sent on 7/29/2003, answer due 9/29/2003 (Harris, Sheryl) (Entered: 08/25/2003)
7 MOTION to Dismiss Pursuant to Rule 12(B)(3) filed by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. Motion Hearing set for 10/2/2003 08:00 AM. (Diekmann, Gilmore) (Entered: 08/25/2003)
8 DECLARATION in Support re 7 Motion to Dismiss By Kamili A. Williams filed by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Related document(s) 7 ) (Diekmann, Gilmore) (Entered: 08/25/2003)
9 DECLARATION in Support re 7 Motion to Dismiss By Thanh Anderson filed by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Related document(s) 7 ) (Diekmann, Gilmore) (Entered: 08/25/2003)
10 DECLARATION in Support re 7 Motion to Dismiss By Robin Marsh filed by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Related document(s) 7 ) (Diekmann, Gilmore) (Entered: 08/25/2003)
11 Proposed Order re 7 Motion to Dismiss Pursuant to Rule 12(B)(3) by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Diekmann, Gilmore) (Entered: 08/25/2003)
12 DECLARATION in Support re 7 of Kamili A. Williams re Motion to Dismiss filed by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Services. (Related document(s) 7 ) (ci, COURT STAFF) (Entered: 08/26/2003)

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08/25/2003 08/25/2003 08/26/2003 08/28/2003
08/28/2003
08/28/2003
08/28/2003 08/28/2003 08/28/2003 09/05/2003 09/08/2003 09/11/2003 09/11/2003 09/18/2003 09/18/2003 09/23/2003

13 NOTICE Regarding Exhibit Attachments in Support of Defendants' Rule 12(B) (3) Motion to Dismiss by Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (ci, COURT STAFF) (Entered: 08/26/2003)
14 OBJECTIONS to Notice of Related Cases by Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (ci, COURT STAFF) (Entered: 08/26/2003)
15 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer (ci, COURT STAFF) (Entered: 08/26/2003)
16 Notice of Motion and Motion and Memorandum of Points and Authorities in Support of Motion to Drop Misjoined Parrties, or Alternatively to Sever Plaintiff's Claims filed by Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. Motion Hearing set for 10/2/2003 08:00 AM. (Williams, Kamili) Modified on 9/2/2003 (ci, COURT STAFF). Additional attachment(s) added on 9/11/2003 (br, COURT STAFF). (Entered: 08/28/2003)
17 DECLARATION in Support re 16 Declaration of Kamili A. Williams In Support of Defendants' Motion to Drop Misjoined Parties or to Sever Plaintiffs' Claims filed by Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Related document(s) 16 ) (Williams, Kamili) Additional attachment(s) added on 9/11/2003 (br, COURT STAFF). (Entered: 08/28/2003)
18 DECLARATION in Support re 16 Declaration of William J. Cahill in Support of Dedendants' Motion to Drop Misjoined Parties or to Sever filed by Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Related document(s) 16 ) (Williams, Kamili) Additional attachment(s) added on 9/11/2003 (br, COURT STAFF). (Entered: 08/28/2003)
19 NOTICE re 16 Notice Regarding Exhibit Attachments In Support of Defendants' Motion to Drop Misjoined Parties or to Sever by Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Williams, Kamili) (Entered: 08/28/2003)
20 Proposed Order re 16 [Proposed] Order Granting Defendants' Motion to Drop Misjoined Parties by Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Williams, Kamili) (Entered: 08/28/2003)
21 EXHIBITS re 17 A Attachment to Declaration of Kamili A. Williams in Support of Defendants' Motion to Drop Misjoined Parties Or, Alternatively, to Sever Plaintiffs' Claims filed by Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Related document(s) 17 ) (ci, COURT STAFF) (Entered: 09/04/2003)
22 NOTICE of need of ADR Phone Conference /ADR Certification (Wallace, Guy) (Entered: 09/05/2003)
23 CLERK'S NOTICE: ADR Phone Conference scheduled for 9/23/03 at 2:00 p.m. Please take note that plaintiff's counsel initiates the call to all parties. (tjs, COURT STAFF) (Entered: 09/08/2003)
24 RESPONSE in Support re 16 Motion to Sever filed by Patricia Caldwell. (Attachments: # 1 P's Response to D's Motion to Sever# 2 Signature Page (Declarations/Stipulations) Decl. of GBW in Response# 3 Proposed Order Proposed Order)(Wallace, Guy) (Entered: 09/11/2003)
25 JOINT CASE MANAGEMENT STATEMENT filed by Patricia Caldwell. (Wallace, Guy) (Entered: 09/11/2003)
26 Reply Memorandum to Motion re 7 , 16 In Support of Motions to Dismiss for Improper Venue (FRCP 12(b)(3)) and to Drop Misjoined Parties (FRCP 21) filed by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Diekmann, Gilmore) (Entered: 09/18/2003)
27 EXHIBITS re 26 In Support of Motions to Dismiss for Improper Venue (FRCP 12(b)(3)) and to Drop Misjoined Parties (FRCP 21) filed by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Related document(s) 26 ) (Diekmann, Gilmore) (Entered: 09/18/2003)
ADR Phone Conference by HAH (tjs, COURT STAFF) (Entered: 09/24/2003)

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09/25/2003 09/25/2003 10/01/2003 10/01/2003 10/01/2003 10/01/2003 10/08/2003
10/08/2003
10/09/2003 10/16/2003 10/16/2003

28 Minute Entry: Initial Case Management Conference held on 9/25/2003 before William Alsup. Motion Hearing set for 10/2/2003 08:00 AM. Ordered after hearing: Court shall contact Judge Illston about the pending notice of related cases. Parties have 28 days to complete initial disclosures.(Court Reporter Jim Yeomans.) (dt, COURT STAFF) (Entered: 09/25/2003)
29 ORDER RELATING CASE. Case reassigned to Judge Susan Illston for all further proceedings. Judge William H. Alsup no longer assigned to case. Signed by Judge Illston on 9/25/03. (ts, COURT STAFF) (Entered: 09/25/2003)
30 Amend/Correct 7 Motion to Dismiss Pursuant to Rule 12(B)(3) filed by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. Motion Hearing set for 10/24/2003 09:00 AM. (Diekmann, Gilmore) Modified on 10/2/2003 (ys, COURT STAFF). (Entered: 10/01/2003)
31 Amend/Correct 16 Notice of Motion to Drop Misjoined Parties or Alernatively Sever Plaintiffs' Claims filed by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. Motion Hearing set for 10/24/2003 09:00 AM. (Diekmann, Gilmore) Modified on 10/2/2003 (ys, COURT STAFF). (Entered: 10/01/2003)
32 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE TO OCCUR ON 12/19/03 @ 2:00 P.M. (Attachments: # 1) (ts, COURT STAFF) (Entered: 10/01/2003)
Set/Reset Hearings: Initial Case Management Conference set for 12/19/2003 at 02:00 PM. (ys, COURT STAFF) (Entered: 10/02/2003)
33 NOTICE of Appearance of attorneys James M. Finberg, Bill Lan Lee, Lexi J. Hazam, and the law firm of Lieff, Cabraser, Heimann & Bernstein, LLP by Charles Anderson, Willie Bryant III, Alvin Buckman, Patricia Caldwell, Kevyn Cameron, John Conwell, Melanie Dennis, Lawrence Estrada, Rick Gonzales, Glenda Gray, Cynthia Guerrero, Bradford Hall, Janet Haynes, David Hernandez, Rachel Hutchins, Cynthia Jackson, Marial Lawson, Janice Lewis, Mariel Lawson Janice Lewis, Emory McClendon, Shirley McCray, Rodney Morton, Yvonne Murray, Lavaedra Newton, Mike O. Odigie, Rosa N. Olmos, Ernestine Owens, Peter Paris, Darryl Payton, Derrick Satchell, Mari Shaffer, Kelvin Smith Sr., Ken Stevenson, Shirley K. Steward, Shelia Tyler, Darnell Williams, Xsiomara Willis, Kimelia Wooten. (ys, COURT STAFF) (Entered: 10/09/2003)
34 CERTIFICATE/PROOF OF SERVICE by Charles Anderson, Willie Bryant III, Alvin Buckman, Patricia Caldwell, Kevyn Cameron, John Conwell, Melanie Dennis, Lawrence Estrada, Fedex Corporation, Rick Gonzales, Glenda Gray, Cynthia Guerrero, Bradford Hall, Janet Haynes, David Hernandez, Rachel Hutchins, Cynthia Jackson, Marial Lawson, Janice Lewis, Mariel Lawson Janice Lewis, Emory McClendon, Shirley McCray, Rodney Morton, Yvonne Murray, Lavaedra Newton, Mike O. Odigie, Rosa N. Olmos, Ernestine Owens, Peter Paris, Darryl Payton, Derrick Satchell, Mari Shaffer, Kelvin Smith Sr., Ken Stevenson, Shirley K. Steward, Shelia Tyler, Darnell Williams, Xsiomara Willis, Kimelia Wooten re 33 (ys, COURT STAFF) (Entered: 10/09/2003)
35 CLERK'S NOTICE re: Failure to E−File Notice of Appearance and Proof of Service by U.S.Mail and/or Failure to Register as an E−Filer (ys, COURT STAFF) (Entered: 10/09/2003)
36 ORDER denying related case notice as to C−03−2660 SBA. Signed by Judge Illston on 10/16/03. (ts, COURT STAFF) Modified on 10/16/2003 (ts, COURT STAFF). (Entered: 10/16/2003)
37 NOTICE of Appearance Attorney Kay McKenzie Parker by Charles Anderson, Willie Bryant III, Alvin Buckman, Patricia Caldwell, Kevyn Cameron, John Conwell, Melanie Dennis, Lawrence Estrada, Rick Gonzales, Glenda Gray, Cynthia Guerrero, Bradford Hall, Janet Haynes, David Hernandez, Rachel Hutchins, Cynthia Jackson, Marial Lawson, Janice Lewis, Mariel Lawson Janice Lewis, Emory McClendon, Shirley McCray, Rodney Morton, Yvonne Murray, Lavaedra Newton, Mike O. Odigie, Rosa N. Olmos, Ernestine Owens, Peter Paris, Darryl Payton, Derrick Satchell, Mari Shaffer, Kelvin Smith Sr., Ken Stevenson, Shirley K. Steward, Shelia Tyler, Darnell Williams, Xsiomara Willis, Kimelia Wooten. (Attachments: # 1 Affidavit Proof of

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10/17/2003
10/23/2003 10/27/2003 11/06/2003 11/06/2003 11/12/2003
11/13/2003 12/02/2003 12/10/2003
12/23/2003
12/23/2003 01/08/2004 01/09/2004 01/09/2004 01/23/2004 02/03/2004 02/13/2004 03/19/2004 07/15/2004

Service)(Parker, Kay) (Entered: 10/16/2003)
38 NOTICE of Lodging of [Proposed] Consolidated Amended Complaint for Violations of Title VII of the Civil Rights Act of 1964; 42 U.S.C. sec. 1981; California Fair Employment and Housing Act by Derrick Satchell. (Attachments: # 1 Exhibit # 2 Proof of Service)(Hazam, Lexi) (Entered: 10/17/2003)
39 NOTICE of Appearance Notice of Association of Counsel by Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Reis, David) (Entered: 10/23/2003)
40 Minute Entry: Motion Hearing held on 10/24/2003 before Illston. (Court Reporter J. Gonzales.) (ts, COURT STAFF) (Entered: 10/27/2003)
41 STIPULATION by Derrick Satchell. (Attachments: # 1 Exhibit A# 2 PROOF OF SERVICE BY ELECTRONIC FILING)(Hazam, Lexi) (Entered: 11/06/2003)
42 NOTICE of Appearance by Patricia Caldwell. (Burris, John) (Entered: 11/06/2003)
43 AMENDED COMPLAINT FOR VIOLATIONS OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964; 42 U.S.C. SECTION 1981; CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT against Fedex Express. Filed by Derrick Satchell. (Attachments: # 1 Exhibit Exhibits A − I# 2 PROOF OF SERVICE BY ELECTRONIC FILING)(Hazam, Lexi) (Entered: 11/12/2003)
44 ORDER consolidating case to C−03−2659 SI. Signed by Judge Illston on 11/12/03. (ts, COURT STAFF) (Entered: 11/13/2003)
45 REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1 Proof of Service)(Hazam, Lexi) (Filed on 12/2/2003) (Entered: 12/02/2003)
46 JOINT CASE MANAGEMENT STATEMENT filed by Derrick Satchell. (Attachments: # 1 [PROPOSED] CASE MANAGEMENT ORDER# 2 PROOF OF SERVICE BY ELECTRONIC FILING)(Hazam, Lexi) (Filed on 12/10/2003) (Entered: 12/10/2003)
47 Minute Entry: Initial Case Management Conference held on 12/19/2003 before Illston (Date Filed: 12/23/2003). Case continued to 2/4/05 @ @:30 p.m. for Further Case Management ConferenceCase continued to 1/14/05 @ 9:00 a.m. for Class Certification Motion() (ts, COURT STAFF) (Date Filed: 12/23/2003) (Entered: 12/23/2003)
Set Deadlines/Hearings: Further Case Management Conference set for 2/4/2005 02:30 PM. Motion Hearing for Class Certification set for 1/14/2005 09:00 AM. (ys, COURT STAFF) (Filed on 12/23/2003) (Entered: 12/24/2003)
48 ORDER extending time to respond to initial discovery demands. Signed by Judge Illston on 1/8/04. (ts, COURT STAFF) (Filed on 1/8/2004) (Entered: 01/08/2004)
49 CASE MANAGEMENT ORDER. Signed by Judge Illston on 1/8/04. (ts, COURT STAFF) (Filed on 1/9/2004) (Entered: 01/09/2004)
Set/Reset Deadlines: Motions for class certification due by 9/10/2004. (ys, COURT STAFF) (Filed on 1/9/2004) (Entered: 01/12/2004)
50 ORDER RELATING CASES 04−0098 AND 04−0099.. Signed by Judge Illston on 1/23/04. (ts, COURT STAFF) (Filed on 1/23/2004) (Entered: 01/23/2004)
51 Letter Brief filed by Patricia Caldwell. (Attachments: # 1 Exhibit)(Schneider, Todd) (Filed on 2/3/2004) (Entered: 02/03/2004)
52 Letter Brief/OBJECTIONS to re 51 by Feddex Ground Package System, Inc., Fedex Corporation, Fedex Express, Fedex Ground, Fedex Services. (Ortman, Francis) (Filed on 2/13/2004) Modified on 2/17/2004 (ys, COURT STAFF). (Entered: 02/13/2004)
53 Stipulation & ORDER Re: Dismissal of Daniel Sherman's Claims. Signed by Judge Illston on 3/18/04. (ts, COURT STAFF) (Filed on 3/19/2004) (Entered: 03/19/2004)
54 PROTECTIVE ORDER. Signed by Judge Illston on 7/15/04. (ts, COURT STAFF) (Filed on 7/15/2004) (Entered: 07/15/2004)

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08/05/2004 08/30/2004 08/31/2004 09/03/2004 09/07/2004 09/08/2004
09/11/2004
09/11/2004
09/11/2004
09/11/2004

55 Letter from Frederick L. Douglas. (Diekmann, Gilmore) (Filed on 8/5/2004) (Entered: 08/05/2004)
56 Letter from James M. Finberg. (Finberg, James) (Filed on 8/30/2004) (Entered: 08/30/2004)
57 ORDER denying plaintiff's motion to compel discovery. Signed by Judge Illston on 8/31/04. (ts, COURT STAFF) (Filed on 8/31/2004) (Entered: 08/31/2004)
58 Letter Brief to Judge Illston filed by Derrick Satchell. (Finberg, James) (Filed on 9/3/2004) (Entered: 09/03/2004)
59 Letter dated 9/3/04 from James M. Finberg to the Court requesting reconsideration of August 31, 2004 order. (ys, COURT STAFF) (Filed on 9/7/2004) (Entered: 09/08/2004)
60 STIPULATION AND [PROPOSED] ORDER RE: INCREASING PAGE LIMITS FOR CLASS CERTIFICATION BRIEFS by Charles Anderson, Willie Bryant III, Alvin Buckman, Patricia Caldwell, Kevyn Cameron, John Conwell, Melanie Dennis, Lawrence Estrada, Rick Gonzales, Glenda Gray, Cynthia Guerrero, Bradford Hall, Janet Haynes, David Hernandez, Rachel Hutchins, Cynthia Jackson, Marial Lawson, Janice Lewis, Mariel Lawson Janice Lewis, Emory McClendon, Shirley McCray, Rodney Morton, Yvonne Murray, Lavaedra Newton, Mike O. Odigie, Rosa N. Olmos, Ernestine Owens, Peter Paris, Darryl Payton, Derrick Satchell, Mari Shaffer, Kelvin Smith Sr., Ken Stevenson, Shirley K. Steward, Shelia Tyler, Darnell Williams, Xsiomara Willis, Kimelia Wooten. (Finberg, James) (Filed on 9/8/2004) (Entered: 09/08/2004)
61 MOTION to Certify Class (NOTICE OF MOTION, MOTION, AND MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION) filed by Derrick Satchell. Motion Hearing set for 1/14/2005 09:00 AM. (Attachments: # 1 DECLARATIONS OF PROPOSED CLASS REPRESENTATIVES IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION# 2 DECLARATIONS OF CLASS MEMBERS IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION# 3 DECLARATIONS OF PROPOSED CLASS COUNSEL IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION)(Keitner, Chimene) (Filed on 9/11/2004) (Entered: 09/11/2004)
62 EXHIBITS TO 61 MOTION to Certify Class (NOTICE OF MOTION, MOTION, AND MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION) filed by Derrick Satchell. Motion Hearing set for 1/14/2005 09:00 AM. (Attachments: # 1 DECLARATION OF CHIMENE I. KEITNER IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION VOLUME I OF VIII (EXHIBITS 1−6)# 2 DECLARATION OF CHIMENE I. KEITNER IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION VOL. II OF VIII (EXHIBITS 7−15)# 3 DECLARATION OF CHIMENE I. KEITNER IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION VOL. III OF VIII (EXHIBITS 16−21))(Keitner, Chimene) (Filed on 9/11/2004) Modified on 9/13/2004 (ys, COURT STAFF). (Entered: 09/11/2004)
63 EXHIBITS TO 61 MOTION to Certify Class (NOTICE OF MOTION, MOTION, AND MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIIFCATION) filed by Derrick Satchell. Motion Hearing set for 1/14/2005 09:00 AM. (Attachments: # 1 DECLARATION OF CHIMENE I. KEITNER IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION VOL. IV OF VIII (EXHIBITS 22−26)# 2 DECLARATION OF CHIMENE I. KEITNER IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION VOL. V OF VIII (EXHIBITS 27−40))(Keitner, Chimene) (Filed on 9/11/2004) Modified on 9/13/2004 (ys, COURT STAFF). (Entered: 09/11/2004)
64 EXHIBITS TO 61 MOTION to Certify Class (NOTICE OF MOTION, MOTION, AND MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION) filed by Derrick Satchell. Motion Hearing set for 1/14/2005 09:00 AM. (Attachments: # 1 DECLARATION OF CHIMENE I. KEITNER IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION VOL. VI OF VIII (EXHIBITS 41−51)# 2 DECLARATION OF CHIMENE I. KEITNER IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION VOL. VII OF VIII

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 49 of 83

09/11/2004
09/11/2004
09/11/2004
09/13/2004 09/20/2004 11/12/2004 11/15/2004 12/17/2004 12/17/2004
12/17/2004

(EXHIBITS 52−53)# 3 DECLARATION OF CHIMENE I. KEITNER IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION VOL. VIII OF VIII (EXHIBITS 54−55))(Keitner, Chimene) (Filed on 9/11/2004) Modified on 9/13/2004 (ys, COURT STAFF). (Entered: 09/11/2004)
65 EXHIBITS TO 61 MOTION to Certify Class (NOTICE OF MOTION, MOTION, AND MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION) filed by Derrick Satchell. Motion Hearing set for 1/14/2005 09:00 AM. (Attachments: # 1 DECLARATION OF NIREJ S. SEKHON IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION# 2 Proposed Order STIPULATION AND PROPOSED ORDER TO FILE UNDER SEAL# 3 NOTICE REGARDING EXHIBIT ATTACHMENT# 4 PROOF OF SERVICE BY HAND DELIVERY AND U.S. MAIL)(Keitner, Chimene) (Filed on 9/11/2004) Modified on 9/13/2004 (ys, COURT STAFF). (Entered: 09/11/2004)
66 EXHIBITS TO 61 MOTION to Certify Class (NOTICE OF MOTION, MOTION, AND MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION) filed by Derrick Satchell. Motion Hearing set for 1/14/2005 09:00 AM. (Attachments: # 1 STATISTICAL ANALYSIS OF RACE AND ETHNIC PATTERNS IN FEDERAL EXPRESS WORKFORCE BY RICHARD DROGIN, PHD# 2 Appendix APPENDIX 1 TO THE STATISTICAL ANALYSIS OF RACE AND ETHNIC PATTERNS IN FEDERAL EXPRESS WORKFORCE BY RICHARD DROGIN, PHD# 3 EXPERT REPORT OF WILLIAM T. BIELBY)(Keitner, Chimene) (Filed on 9/11/2004) Modified on 9/13/2004 (ys, COURT STAFF). (Entered: 09/11/2004)
67 EXHIBITS TI 61 MOTION to Certify Class (NOTICE OF MOTION, MOTION, AND MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION) filed by Derrick Satchell. Motion Hearing set for 1/14/2005 09:00 AM. (Attachments: # 1 REPORT ON THE BASIC SKILLS TESTS AND THEIR USE BY FEDERAL EXPRESS BY NITA R FRENCH, PHD# 2 Proposed Order PROPOSED ORDER GRANTING PLAINTIFFS MOTION FOR CLASS CERTIFICATION# 3 PROOF OF SERVICE BY ELECTRONIC FILING)(Keitner, Chimene) (Filed on 9/11/2004) Modified on 9/13/2004 (ys, COURT STAFF). (Entered: 09/11/2004)
68 Declaration of Proposed Class Representatives in Support of 61 [Corrected Att. 1] filed by Derrick Satchell. (Attachments: # 1 Proof of Electronic Service)(Related document(s) 61 ) (Finberg, James) (Filed on 9/13/2004) (Entered: 09/13/2004)
69 NOTICE by Derrick Satchell OF ENTRY OF ORDER TO FILE UNDER SEAL (Attachments: # 1 Stipulation and Proposed Order# 2 Proof of Service)(Finberg, James) (Filed on 9/20/2004) (Entered: 09/20/2004)
70 STIPULATION AND ORDER RE LENGTH OF OPPOSITION AND REPLY BRIEFS ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION by Rick Gonzales, Cynthia Guerrero, Rachel Hutchins, Derrick Satchell, Ken Stevenson. (Keitner, Chimene) (Filed on 11/12/2004) (Entered: 11/12/2004)
71 Letter from James M. Finberg. (Finberg, James) (Filed on 11/15/2004) (Entered: 11/15/2004)
72 Reply Memorandum [of Plaintiffs] in Support of 61 Plaintiffs' Motion for Class Certification filed byDerrick Satchell. (Keitner, Chimene) (Filed on 12/17/2004) Modified on 12/20/2004 (ys, COURT STAFF). (Entered: 12/17/2004)
73 Reply Declaration of Chimene I. Keitner in Support of Plaintiffs' Motion for Class Certification] filed byDerrick Satchell. (Attachments: # 1 Exhibit 01# 2 Exhibit 02# 3 Exhibit 03# 4 Exhibit 04# 5 Exhibit 05# 6 Exhibit 06# 7 Exhibit 07# 8 Exhibit 08# 9 Exhibit 09# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26)(Related document(s) 72 ) (Keitner, Chimene) (Filed on 12/17/2004) Modified on 12/20/2004 (ys, COURT STAFF). (Entered: 12/17/2004)
74 Dr. RIchard Drogin Reply Declaration to Declaration of Dr. Mary Baker] filed byDerrick Satchell. (Attachments: # 1 Appendix)(Related document(s) 72 ) (Keitner,

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12/17/2004
12/17/2004
01/19/2005 01/26/2005 02/04/2005 02/08/2005 02/08/2005 03/14/2005 05/17/2005 05/23/2005 06/07/2005
08/08/2005 09/16/2005 09/28/2005 09/28/2005 09/28/2005 09/28/2005 10/07/2005 10/12/2005

Chimene) (Filed on 12/17/2004) Modified on 12/20/2004 (ys, COURT STAFF). (Entered: 12/17/2004)
75 Response to Declarations of Dr. Jerilyn Hayward and Ms. Jan Duffy by Nita R. French, Ph.D.] filed byDerrick Satchell. (Related document(s) 72 ) (Keitner, Chimene) (Filed on 12/17/2004) Modified on 12/20/2004 (ys, COURT STAFF). (Entered: 12/17/2004)
76 The Expected Representation of Race/Ethnic Minorities when Selected Vacancies are Filled at FedEx Express: A Labor Economics Perspective by Marc Bendick, Jr., Ph.D.] filed byDerrick Satchell. (Attachments: # 1 Appendix A# 2 Appendix B# 3 Appendix C)(Related document(s) 72 ) (Keitner, Chimene) (Filed on 12/17/2004) Modified on 12/20/2004 (ys, COURT STAFF). (Entered: 12/17/2004)
77 Minute Entry: Motion Hearing held on 1/14/2005 before Illston (Date Filed: 1/19/2005). (Court Reporter Skillman.) (ts, COURT STAFF) (Date Filed: 1/19/2005) (Entered: 01/19/2005)
78 JOINT CASE MANAGEMENT STATEMENT filed by Derrick Satchell. (Finberg, James) (Filed on 1/26/2005) (Entered: 01/26/2005)
79 STIPULATION re 49 Order (Stipulation and [Proposed] Order re: Continuation of Case Management Conference) by Derrick Satchell. (Keitner, Chimene) (Filed on 2/4/2005) (Entered: 02/04/2005)
80 STIPULATION AND ORDER continuing case management. Signed by Judge Illston on 2/7/05. (ts, COURT STAFF) (Filed on 2/8/2005) (Entered: 02/08/2005)
Set Deadlines/Hearings: Case Management Conference set for 3/25/2005 02:30 PM. (ys, COURT STAFF) (Filed on 2/8/2005) (Entered: 02/09/2005)
81 JOINT CASE MANAGEMENT STATEMENT filed by Derrick Satchell. (Finberg, James) (Filed on 3/14/2005) (Entered: 03/14/2005)
82 NOTICE of Change of Address by Kay McKenzie Parker Attorney for Plaintiffs (Parker, Kay) (Filed on 5/17/2005) (Entered: 05/17/2005)
83 JOINT CASE MANAGEMENT STATEMENT filed by Derrick Satchell. (Finberg, James) (Filed on 5/23/2005) (Entered: 05/23/2005)
84 Minute Entry: Further Case Management Conference held on 6/3/2005 before Illston (Date Filed: 6/7/2005). Case continued to 8/19/05 @ 2:30 P.M. further Case Management Conference () (ts, COURT STAFF) (Date Filed: 6/7/2005) (Entered: 06/07/2005)
85 JOINT CASE MANAGEMENT STATEMENT filed by Derrick Satchell. (Keitner, Chimene) (Filed on 8/8/2005) (Entered: 08/08/2005)
86 ORDER re: extension of time (ts, COURT STAFF) (Filed on 9/16/2005) (Entered: 09/16/2005)
87 ORDER re: plaintiffs' motion for class certification by Judge Illston (ts, COURT STAFF) (Filed on 9/28/2005) (Entered: 09/28/2005)
88 ORDER denying defendant's motions for summary judgment without prejudice to renewal after production of discovery. Signed by Judge Illston on 9/28/05. (ts, COURT STAFF) (Filed on 9/28/2005) (Entered: 09/28/2005)
89 Letter from Waukeen McCOy,Esq.. (McCoy, Waukeen) (Filed on 9/28/2005) (Entered: 09/28/2005)
Set Deadlines/Hearings: Further Case Management Conference set for 11/18/2005 02:30 PM. (ys, COURT STAFF) (Filed on 9/28/2005) (Entered: 09/29/2005)
90 ORDER amended class certification order to appoint additional class counsel. Signed by Judge Illston on 10/7/05. (tsS, COURT STAFF) (Filed on 10/7/2005) (Entered: 10/07/2005)
91 AMENDED COMPLAINT SECOND CONSOLIDATED AMENDED COMPLAINT FOR VIOLATIONS OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964; 42 U.S.C.

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10/26/2005 10/28/2005 10/31/2005 10/31/2005 11/01/2005 11/07/2005 11/07/2005 11/21/2005
11/23/2005 11/28/2005 11/29/2005 11/29/2005
11/29/2005 11/29/2005 11/29/2005 11/29/2005

section 1981; CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT against all defendants. Filed byDerrick Satchell. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I)(Finberg, James) (Filed on 10/12/2005) (Entered: 10/12/2005)
92 STIPULATION AND [PROPOSED] ORDER RE: HEARING ON DEFENDANT?S MOTION TO STAY PROCEEDINGS by Derrick Satchell. (Keitner, Chimene) (Filed on 10/26/2005) (Entered: 10/26/2005)
93 [Plaintiffs' Opposition to Defendant's Motion to Stay Proceedings] filed byDerrick Satchell. (Attachments: # 1 Exhibit # 2 Exhibit)(Finberg, James) (Filed on 10/28/2005) Modified on 10/31/2005 (ys, COURT STAFF). (Entered: 10/28/2005)
94 ORDER advancing motion to 11/18/05 @ 2:30 p.m.. Signed by Judge Illston on 10/31/05. (ts, COURT STAFF) (Filed on 10/31/2005) (Entered: 10/31/2005)
95 Proposed Order And Joint Statement Re Class Notice by Derrick Satchell. (Attachments: # 1 Exhibit A)(Keitner, Chimene) (Filed on 10/31/2005) (Entered: 10/31/2005)
96 JOINT CASE MANAGEMENT STATEMENT filed by Derrick Satchell. (Keitner, Chimene) (Filed on 11/1/2005) (Entered: 11/01/2005)
97 Letter from Guy B. Wallace. (Wallace, Guy) (Filed on 11/7/2005) (Entered: 11/07/2005)
98 Letter from Chimene I. Keitner. (Keitner, Chimene) (Filed on 11/7/2005) (Entered: 11/07/2005)
99 ORDER RE: DISCOVERY: re 97 Letter filed by Charles Anderson,, Patricia Caldwell,, John Conwell,, Willie Bryant III,, Alvin Buckman,, Kevyn Cameron,, Melanie Dennis,, Lawrence Estrada,, 98 Letter filed by Derrick Satchell,. Signed by Judge Susan Illston on 11/19/2005. (tl, COURT STAFF) (Filed on 11/21/2005) (Entered: 11/21/2005)
100 ORDER denying motion to stay pending disposition of Rule 23(f) motion. Signed by Judge Illston on 11/18/05. (ts, COURT STAFF) (Filed on 11/23/2005) (Entered: 11/23/2005)
101 ORDER re: class notice. Signed by Judge Illston on 11/18/05. (Attachments: # 1)(ts, COURT STAFF) (Filed on 11/28/2005) (Entered: 11/28/2005)
102 ORDER w/amended attachment. Signed by Judge Illston on 11/18/05. (Attachments: # 1)(ts, COURT STAFF) (Filed on 11/29/2005) (Entered: 11/29/2005)
103 Minute Entry: Further Case Management Conference held on 11/18/2005 before Illston (Date Filed: 11/29/2005). Case continued to 1/5/07 @ 2:30 P.M. For Further StatusDEADLINES RE: PHASE 1 (Liability):Case continued to 12/8/06 @ 9:00 a.m. for motions(File:9/29/06 Oppose: 10/27/06 Reply: 11/13/06)Case continued to 1/23/07 @ 3:30 P.M. for Pretrial ConferenceCase continued to 2/12/07 @ 8:30 A.M. for Trial (Jury : Days)Discovery Cutoff: 8/11/06 Designate Experts by: 6/30/06, Supplemental Reports: 8/25/06Expert Discovery Cutoff: 9/29/06ORDERED AFTER HEARING: By November 30, 2005, the parties shall inform the Court as to the status of the Individual Disparate Impact Claims.The parties have agreed to participate in private mediation with Mr. Hughes in April 2006. (Court Reporter C. Edwards.) (ts, COURT STAFF) (Date Filed: 11/29/2005) (Entered: 11/29/2005)
104 PRETRIAL ORDER. Signed by Judge Illston on 11/28/05. (Attachments: # 1)(ts, COURT STAFF) (Filed on 11/29/2005) (Entered: 11/29/2005)
105 MOTION for leave to appear in Pro Hac Vice of David A. Billions ($210.00, receipt #3378835) filed by Fedex Express. (ys, COURT STAFF) (Filed on 11/29/2005) (Entered: 11/29/2005)
Proposed Order re 105 MOTION for leave to appear in Pro Hac Vice by Fedex Express. (ys, COURT STAFF) (Filed on 11/29/2005) (Entered: 11/29/2005)
Set Deadlines/Hearings: Non−Expert Discovery due by 8/11/2006. Motions due by 9/29/2006. Case Management Conference set for 1/5/2007 02:30 PM. Jury Trial set for

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11/30/2005
11/30/2005 12/16/2005 12/16/2005 12/23/2005 12/23/2005 01/12/2006 01/12/2006 01/12/2006 01/20/2006
01/24/2006 03/14/2006 04/10/2006 06/08/2006 06/30/2006
07/14/2006 07/20/2006 07/21/2006 07/24/2006

2/12/2007 08:30 AM. Motion Hearing set for 12/8/2006 09:00 AM. Pretrial Conference set for 1/23/2007 03:30 PM. (ys, COURT STAFF) (Filed on 11/29/2005) (Entered: 11/30/2005)
106 STATUS REPORT [Report to Court re Issues Raised by the Court at the November 18, 2005 Case Management Conference about the Possibility of Overlap Between the Individual and Class Cases] by Derrick Satchell, Cynthia Guerrero, Rachel Hutchins, Rick Gonzales, Ken Stevenson, Kelvin Smith Sr.. (Finberg, James) (Filed on 11/30/2005) (Entered: 11/30/2005)
107 ORDER by Judge Susan Illston granting 105 Motion for Pro Hac Vice of David A. Billions. (ys, COURT STAFF) (Filed on 11/30/2005) (Entered: 12/01/2005)
108 Letter from Waukeen McCoy Requesting Immediate Hearing. (McCoy, Waukeen) (Filed on 12/16/2005) (Entered: 12/16/2005)
109 Letter from James M. Finberg to Hon. Susan Illston. (Finberg, James) (Filed on 12/16/2005) (Entered: 12/16/2005)
110 ORDER GRANTING MOTION TO INTERVENE AND GRANTING MOTIONS TO QUASH SUBPOENA. Signed by Judge Illston on 12/23/05. (ts, COURT STAFF) (Filed on 12/23/2005) (Entered: 12/23/2005)
111 Order:stipulation re: mailing notice. Signed by Judge Illston on 12/23/05. (ts, COURT STAFF) (Filed on 12/23/2005) (Entered: 12/23/2005)
112 Thirteenth Set of REQUEST for Production of Documents by plaintiffs. (ys, COURT STAFF) (Filed on 1/12/2006) (Entered: 01/12/2006)
113 CERTIFICATE OF SERVICE re 112 Request by plaintiffs. (ys, COURT STAFF) (Filed on 1/12/2006) (Entered: 01/12/2006)
114 CLERK'S NOTICE re: Failure to E−File #112, #113 by plaintiffs' counsel. (ys, COURT STAFF) (Filed on 1/12/2006) (Entered: 01/12/2006)
115 STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF COMPUTER−READABLE DATA FOR 1997−1998 AND 2004−2005 by Derrick Satchell, Cynthia Guerrero, Rachel Hutchins, Rick Gonzales, Ken Stevenson, Kelvin Smith Sr.. (Finberg, James) (Filed on 1/20/2006) (Entered: 01/20/2006)
116 ORDER re: production of computer−readable data. Signed by Judge Illston on 1/23/06. (ts, COURT STAFF) (Filed on 1/24/2006) (Entered: 01/24/2006)
117 ORDER re: discovery. Signed by Judge Illston on 3/13/06. (ts, COURT STAFF) (Filed on 3/14/2006) (Entered: 03/14/2006)
118 ORDER granting withdrawal of counsel. Signed by Judge Illston on 4/10/06. (ts, COURT STAFF) (Filed on 4/10/2006) (Entered: 04/10/2006)
119 ORDER setting hearing on motion to bifurcate on 7/21/06. Signed by Judge Illston on 6/8/06. (ts, COURT STAFF) (Filed on 6/8/2006) (Entered: 06/08/2006)
120 Reply Memorandum IN SUPPORT OF PLAINTIFFS' MOTION FOR BIFURCATION filed byDerrick Satchell, Cynthia Guerrero, Rachel Hutchins, Rick Gonzales, Ken Stevenson, Kelvin Smith Sr.. (Attachments: # 1 Exhibit A)(Cervantez, Eve) (Filed on 6/30/2006) (Entered: 06/30/2006)
121 Letter from James M. Finberg. (Finberg, James) (Filed on 7/14/2006) (Entered: 07/14/2006)
122 ORDER granting petition for admission pro hac vice. Signed by Judge Illston on 7/19/06. (ts, COURT STAFF) (Filed on 7/20/2006) (Entered: 07/20/2006)
123 NOTICE of Appearance by Daniel E. Barenbaum (Barenbaum, Daniel) (Filed on 7/21/2006) (Entered: 07/21/2006)
124 Minute Entry: Motion Hearing held on 7/21/2006 before Illston (Date Filed: 7/24/2006). Counsel shall further brief the issue re: individual claims as follows:1) Pltf to file it?s supplemental brief on 8/11/06, 2) Deft. Opposition filed by 8/25/06, 3) Pltf. to file reply by 9/1/06. The matter will be submitted without argument.(Court Reporter

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07/26/2006 07/31/2006 08/03/2006
08/11/2006 08/15/2006
08/16/2006 08/16/2006 08/21/2006
08/23/2006

McVickar.) (ts, COURT STAFF) (Date Filed: 7/24/2006) (Entered: 07/24/2006)
125 Letter from James Finberg to Judge Illston. (Finberg, James) (Filed on 7/26/2006) (Entered: 07/26/2006)
126 Letter from James M. Finberg to Judge Illston re Failure to Meet and Confer. (Attachments: # 1 Exhibit A − July 27, 2006 Letter from Eve Cervantez to Frederick Douglas# 2 Exhibit B − July 28, 2006 email from Frederick Douglas to Eve Cervantez and Jim Finberg)(Cervantez, Eve) (Filed on 7/31/2006) (Entered: 07/31/2006)
127 MOTION to confirm court's interpretation of its class certification order regarding promotions covered, or, in the alternative, to modify class certification order to conform to the evidence and memorandum in support re 101 Order re Class Notice filed by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A − Report of Mary Dunn Baker, Ph.D.# 2 Exhibit B − Statistical Analysis of Race and Ethnic Patterns in Federal Express Workforce, by Richard Drogin, Ph.D.)(Finberg, James) (Filed on 8/3/2006) (Entered: 08/03/2006)
128 MOTION OF PLAINTIFFS, AND MEMORANDUM IN SUPPORT, TO CONFIRM THAT THE LIABILITY PHASE OF THE TRIAL WILL ADDRESS FEDEXS LIABILITY ON CLASS CLAIMS, NOT INDIVIDUAL RELIEF OR INDIVIDUAL NON−CLASS CLAIMS filed by Derrick Satchell. (Finberg, James) (Filed on 8/11/2006) (Entered: 08/11/2006)
129 STIPULATION AND [PROPOSED] ORDER EXTENDING DEADLINES FOR EXPERT REBUTTAL REPORTS AND EXPERT DEPOSITIONS, AND ADJUSTING BRIEFING AND HEARING DATES RE DISPOSITIVE MOTIONS by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/15/2006) (Entered: 08/15/2006)
130 ORDER extending deadlines. Signed by Judge Illston on 8/16/06. (ts, COURT STAFF) (Filed on 8/16/2006) (Entered: 08/16/2006)
Set Deadlines/Hearings: Motions due by 10/20/2006. (ys, COURT STAFF) (Filed on 8/16/2006) (Entered: 08/17/2006)
131 STIPULATION and [Proposed] Order Extending Deadline for Filing Certain Motions to Compel re: Non−Expert Discovery by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Barenbaum, Daniel) (Filed on 8/21/2006) (Entered: 08/21/2006)
132 ORDER re: extension for motions to compel. Signed by Judge Illston on 8/22/06. (ts, COURT STAFF) (Filed on 8/23/2006) Modified on 8/24/2006 (ys, COURT STAFF). (Entered: 08/23/2006)

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08/28/2006
08/28/2006 08/28/2006 08/28/2006
08/28/2006 08/28/2006 08/29/2006
08/30/2006
08/31/2006 08/31/2006

133 Letter Brief to Honorable Susan Illston filed byKevyn Cameron, Alvin Buckman, Willie Bryant III, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Finberg, James) (Filed on 8/28/2006) (Entered: 08/28/2006)
134 Letter from Eve H. Cervantez. (Cervantez, Eve) (Filed on 8/28/2006) (Entered: 08/28/2006)
135 Letter from James M. Finberg. (Finberg, James) (Filed on 8/28/2006) (Entered: 08/28/2006)
136 Letter Brief to Honorable Susan Illston filed byKevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I)(Finberg, James) (Filed on 8/28/2006) (Entered: 08/28/2006)
138 CERTIFICATE OF SERVICE of plaintiffs' letter brief, stipulation and proposed order allowing documents to be filed under seal. (ys, COURT STAFF) (Filed on 8/28/2006) (Entered: 08/30/2006)
142 Letter Brief − MOTION to Compel production of documents in response to plaintiff's twenty−first set of request for production by plaintiffs. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 8/28/2006) (Entered: 08/31/2006)
137 STIPULATION AND [PROPOSED] ORDER CONTINUING DATE FOR REBUTTAL REPORTS OF DRS. DROGIN AND BAKER AND DATE TO COMPLETE EXPERT DEPOSITIONS by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/29/2006) (Entered: 08/29/2006)
139 STIPULATION AND PROPOSED ORDER ALLOWING DOCUMENTS TO BE FILED UNDER SEAL by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Cervantez, Eve) (Filed on 8/30/2006) (Entered: 08/30/2006)
140 sealing ORDER. Signed by Judge Illston on 8/30/06. (ts, COURT STAFF) (Filed on 8/31/2006) (Entered: 08/31/2006)
141 ***ERRONEOUS ENTRY***ORDER re: extension to file opposition to discovery motions. Signed by Judge Illston on 8/30/06. (ts, COURT STAFF) (Filed on 8/31/2006) Modified on 9/1/2006 (ys, COURT STAFF). (Entered: 08/31/2006)

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09/01/2006
09/01/2006
09/06/2006
09/07/2006 09/19/2006 09/19/2006 09/19/2006 09/19/2006 09/19/2006 09/21/2006 09/29/2006
10/10/2006 10/24/2006 10/24/2006

143 Reply Memorandum ISO of 128 Plaintiffs Motion to Conform that the Liability Phase of the Trial Will Address Fedex?s Liability on Class Claims, Not Individual Relief or Individual Non−Class Claims filed byDerrick Satchell, Cynthia Guerrero, Rachel Hutchins, Rick Gonzales, Ken Stevenson, Kelvin Smith Sr.. (Attachments: # 1)(Finberg, James) (Filed on 9/1/2006) Modified on 9/5/2006 (ys, COURT STAFF). (Entered: 09/01/2006)
144 Reply Memorandum re 127 MOTION to confirm court's interpretation of its class certification order regarding promotions covered, or, in the alternative, to modify class certification order to conform to the evidence and memorandum in support re 101 Order re Class No tice filed byDerrick Satchell, Cynthia Guerrero, Rachel Hutchins, Rick Gonzales, Ken Stevenson, Kelvin Smith Sr.. (Finberg, James) (Filed on 9/1/2006) (Entered: 09/01/2006)
145 MOTION to Strike 143 Reply Memorandum, DEFENDANT FEDEXS SURREBUTTAL MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION TO CONFIRM THAT THE LIABILITY PHASE OF THE TRIAL WILL ADDRESS FEDEXS LIABILITY ON CLASS CLAIMS, NOT INDIVIDUAL RELIEF OR INDIVIDUAL NON−CLASS CLAIMS, OR, IN THE ALTERNATIVE, PLAINTIFFS REQUEST FOR LEAVE TO FILE A SUR−SURREPLY filed by Derrick Satchell. (Finberg, James) (Filed on 9/6/2006) (Entered: 09/06/2006)
146 ORDER extending date to exchange expert rebuttal witnesses. Signed by Judge Illston on 9/6/06. (ts, COURT STAFF) (Filed on 9/7/2006) (Entered: 09/07/2006)
147 Letter from Daniel E. Barenbaum to The Honorable Susan Illston. (Barenbaum, Daniel) (Filed on 9/19/2006) (Entered: 09/19/2006)
148 Letter from Eve H. Cervantez to Hon. Susan Illston. (Cervantez, Eve) (Filed on 9/19/2006) (Entered: 09/19/2006)
149 CERTIFICATE OF SERVICE of plaintiffs' reply to motion to compel production of documents (letter biref) lodged under seal by plaintiffs. (ys, COURT STAFF) (Filed on 9/19/2006) (Entered: 09/19/2006)
150 ORDER granting 127 Motion re: scope of class certification order (ts, COURT STAFF) (Filed on 9/19/2006) (Entered: 09/19/2006)
151 Reply Memorandum re 142 MOTION to Compel filed byplaintiffs. (per order #140)FILED UNDER SEAL (ys, COURT STAFF) (Filed on 9/19/2006) (Entered: 09/21/2006)
152 Letter from Daniel E. Barenbaum to Judge Illston with Attachments. (Barenbaum, Daniel) (Filed on 9/21/2006) (Entered: 09/21/2006)
153 MOTION for Leave to File Third Amended Complaint filed by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Rick Gonzales, Patricia Caldwell, John Conwell, Lawrence Estrada, Melanie Dennis. Motion Hearing set for 11/3/2006 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Attachments: # 1 # 2 # 3 # 4)(Cervantez, Eve) (Filed on 9/29/2006) (Entered: 09/29/2006)
154 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS? MOTIONS TO COMPEL; GRANTING PLAINTIFFS? MOTION FOR SANCTIONS (ts, COURT STAFF) (Filed on 10/10/2006) (Entered: 10/10/2006)
155 ORDER re: Various Discovery Matters. Signed by Judge Illston on 10/23/06. (ts, COURT STAFF) (Filed on 10/24/2006) (Entered: 10/24/2006)
156 STIPULATION AND [PROPOSED] ORDER RE SCHEDULE FOR ADDITIONAL REPORTS, REBUTTAL REPORTS AND DEPOSITIONS OF DRS. BAKER AND DROGIN AND ADDITIONAL DEPOSITION DATES FOR DRS. GREENWALD, ZEDECK, BIELBY, AND CAMPION by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 56 of 83

10/25/2006 10/27/2006
10/30/2006 11/03/2006 11/09/2006
11/13/2006 11/14/2006 11/17/2006 11/21/2006 11/28/2006 11/30/2006

Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 10/24/2006) (Entered: 10/24/2006)
157 ORDER re: discovery (stipulation).. Signed by Judge Illston on 10/25/06. (ts, COURT STAFF) (Filed on 10/25/2006) (Entered: 10/25/2006)
158 Memorandum in Opposition to Motion for Clarification of Scope of Certified Promotion Claims and Specification of Promotion Claims Being Certified filed byKevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 10/27/2006) (Entered: 10/27/2006)
159 ORDER granting extension of time. Signed by Judge Illston on 10/27/06. (ts, COURT STAFF) (Filed on 10/30/2006) (Entered: 10/30/2006)
160 Reply Memorandum in Support of 153 Plaintiffs' Motion for Leave to File Third Amended Complaint filed byDerrick Satchell. (Attachments: # 1 Cervantez Reply Declaration with Exs A and B)(Cervantez, Eve) (Filed on 11/3/2006) Modified on 11/6/2006 (ys, COURT STAFF). (Entered: 11/03/2006)
161 STIPULATION AND [PROPOSED] ORDER REGARDING DEPOSITION AND DOCUMENTS PRODUCED BY PLAINTIFFS' EXPERT ANTHONY G. GREENWALD, PH.D. by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 11/9/2006) (Entered: 11/09/2006)
162 ORDER regarding deposition & doc. produced by Greenwald. Signed by Judge Illston on 11/9/06. (ts, COURT STAFF) (Filed on 11/13/2006). (Entered: 11/13/2006)
163 ORDER by Judge Illston granting 153 Motion for Leave to File (ts, COURT STAFF) (Filed on 11/14/2006) (Entered: 11/14/2006)
164 STIPULATION AND [PROPOSED] ORDER EXTENDING DEADLINES FOR PLAINTIFFS TO FILE STATEMENT RE: PROMOTIONS CLAIMS FROM NOVEMBER 28 TO DECEMBER 1, 2006 by Patricia Caldwell. (Finberg, James) (Filed on 11/17/2006) (Entered: 11/17/2006)
165 ORDER granting extension re: filing of statement. Signed by Judge Illston on 11/20/06. (ts, COURT STAFF) (Filed on 11/21/2006) (Entered: 11/21/2006)
166 CLERK'S NOTICE Case Management Conference set for 1/12/2007 02:30 PM. (ts, COURT STAFF) (Filed on 11/28/2006) (Entered: 11/28/2006)
167 RESPONSE to re 163 Order on Motion for Leave to File, 164 Stipulation PLAINTIFFS' STATEMENT REGARDING PROMOTIONS CLAIMS by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 11/30/2006) (Entered: 11/30/2006)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 57 of 83

12/05/2006
12/08/2006 12/08/2006 12/08/2006 12/08/2006 12/08/2006 12/08/2006 12/12/2006
12/12/2006

168 Letter/MOTION to Compel 30(b)(6) Depo of Dr. Hater Re Biodata Study filed by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(Finberg, James) (Filed on 12/5/2006) Modified on 12/6/2006 (ys, COURT STAFF). (Entered: 12/05/2006)
169 MOTION for an Order Precluding Defendant from Introducing Evidence Regarding the Racial Composition of Upper−Level Management; Memorandum of Points and Authorities in Support Thereof filed by Derrick Satchell. Motion Hearing set for 1/12/2007 09:00 AM. (Attachments: # 1 Declaration of James M. Finberg in Support of Plaintiffs' Motion for an Order Precluding Defendant from Introducing Evidence Regarding the Racial Composition of Upper−Level Management with Exhibits 1 through 6)(Finberg, James) (Filed on 12/8/2006) (Entered: 12/08/2006)
170 MOTION and Memorandum to Preclude Non−Rebuttal Labor Economist Opinion of Mary Baker Raised for the First Time in Her Rebuttal Report, or, in the Alternative, to Permit Plaintiffs to Submit a Rebuttal Report of a Labor Economist Responding filed by Derrick Satchell. Motion Hearing set for 1/12/2007 09:00 AM. (Finberg, James) (Filed on 12/8/2006) (Entered: 12/08/2006)
171 Declaration of James M. Finberg in Support of 170 MOTION and Memorandum to Preclude Non−Rebuttal Labor Economist Opinion of Mary Baker Raised for the First Time in Her Rebuttal Report, or, in the Alternative, to Permit Plaintiffs to Submit a Rebuttal Report of a Labor Economist Responding filed byDerrick Satchell. (Attachments: # 1 Exhibits A and B# 2 Exhibit C Part 1# 3 Exhibit C Part 2# 4 Exhibit C Part 3# 5 Exhibit C Part 4# 6 Exhibit C Part 5# 7 Exhibits D and E)(Related document(s) 170 ) (Finberg, James) (Filed on 12/8/2006) (Entered: 12/08/2006)
172 CERTIFICATE OF SERVICE by Derrick Satchell, Cynthia Guerrero, Rachel Hutchins, Rick Gonzales, Ken Stevenson, Kelvin Smith Sr. Proof of Service By Hand Delivery and U.S. Mail (Finberg, James) (Filed on 12/8/2006) (Entered: 12/08/2006)
176 MOTION and Memorandum of points and authorities an Order finding Snyder deposition testimony to be admissible by plaintiffs . Motion Hearing set for 1/12/2007 09:00 AM. FILED UNDER SEAL.(ys, COURT STAFF) (Filed on 12/8/2006) (Entered: 12/14/2006)
177 Declaration of James M. Finberg in Support of 176 MOTION an Order finding Snyder deposition testimony to be admissible filed byplaintiffs. Vol.1 (exh.1−2), Vol.2 (exh.3−11) FILED UNDER SEAL.(Related document(s) 176 ) (ys, COURT STAFF) (Filed on 12/8/2006) (Entered: 12/14/2006)
173 NOTICE by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis Of Change Of Hearing Date On 170 Plaintiffs Motion To Preclude Non−Rebuttal Labor Economist Opinion Of Mary Baker Raised For The First Time In Her Rebuttal Report, Or, In The Alternative, To Permit Plaintiffs To Submit A Rebuttal Report Of A Labor Economist Responding (Cervantez, Eve) (Filed on 12/12/2006) Modified on 12/13/2006 (ys, COURT STAFF). (Entered: 12/12/2006)
174 NOTICE by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K.

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 58 of 83

12/12/2006
12/12/2006 12/17/2006
12/18/2006 12/19/2006 12/20/2006
12/21/2006

Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis Of Change Of Hearing Date On Plaintiffs Motion In Support Of An Order Finding Snyder Deposition Testimony To Be Admissible (Cervantez, Eve) (Filed on 12/12/2006) (Entered: 12/12/2006)
175 NOTICE by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis Of Change Of Hearing Date On 169 Plaintiffs Motion For An Order Precluding Defendant From Introducing Evidence Regarding The Racial Composition Of Upper Level Management (Cervantez, Eve) (Filed on 12/12/2006) Modified on 12/13/2006 (ys, COURT STAFF). (Entered: 12/12/2006)
Set/Reset Deadlines as to 169 MOTION for an Order Precluding Defendant from Introducing Evidence Regarding the Racial Composition of Upper−Level Management; Memorandum of Points and Authorities in Support Thereof, 170 MOTION and Memorandum to Preclude Non−Rebuttal Labor Economist Opinion of Mary Baker Raised for the First Time in Her Rebuttal Report, or, in the Alternative, to Permit Plaintiffs to Submit a Rebuttal Report of a Labor Economist Responding. Motion Hearing set for 1/23/2007 03:30 PM. (ys, COURT STAFF) (Filed on 12/12/2006) (Entered: 12/13/2006)
178 MOTION FOR MISCELLANEOUS RELIEF filed by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 12/17/2006) (Entered: 12/17/2006)
179 NOTICE of Appearance by Kelly M. Dermody (Dermody, Kelly) (Filed on 12/18/2006) (Entered: 12/18/2006)
180 Letter from James M. Finberg to Honorable Susan Illston. (Finberg, James) (Filed on 12/19/2006) (Entered: 12/19/2006)
181 STIPULATION AND [PROPOSED] ORDER MODIFYING SCHEDULE FOR FILING PRETRIAL CONFERENCE STATEMENT AND IN LIMINE MOTIONS DIRECTED AT LAY WITNESSES by Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 12/20/2006) (Entered: 12/20/2006)
182 First MOTION for Leave to File Opposition to Finberg's Petition for Misc. Relief Under Seal filed by Ken Stevenson. Motion Hearing set for 12/21/2006 10:00 AM. (Attachments: # 1 Affidavit of Waukeen McCoy In Support of Moiton to File Opposition Under Seal)(McCoy, Waukeen) (Filed on 12/21/2006) (Entered: 12/21/2006)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 59 of 83

12/22/2006 12/22/2006 12/27/2006 12/27/2006 01/02/2007 01/02/2007 01/03/2007
01/05/2007
01/08/2007
01/09/2007 01/09/2007 01/09/2007 01/09/2007 01/09/2007

183 ORDER modifying schedule re: pretrial motions directed at lay witnesses. Signed by Judge Illston on 12/21/06. (ts, COURT STAFF) (Filed on 12/22/2006) (Entered: 12/22/2006)
184 ***ERRONEOUS ATTACHMENT***ORDER by Judge Illston granting 182 Motion for Leave to File under seal (ts, COURT STAFF) (Filed on 12/22/2006) Modified on 12/28/2006 (ys, COURT STAFF). (Entered: 12/22/2006)
185 NOTICE of Appearance by Claire P. Prestel (Prestel, Claire) (Filed on 12/27/2006) (Entered: 12/27/2006)
186 NOTICE of Appearance by Danielle Evelyn Leonard (Leonard, Danielle) (Filed on 12/27/2006) (Entered: 12/27/2006)
187 NOTICE of Change of Address by James M. Finberg (Finberg, James) (Filed on 1/2/2007) (Entered: 01/02/2007)
188 NOTICE of Change of Address by Eve H. Cervantez (Cervantez, Eve) (Filed on 1/2/2007) (Entered: 01/02/2007)
189 STIPULATION and [Proposed] Order RE: Briefing Schedule for Plaintiffs' Motions Filed December 8, 2006 by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Prestel, Claire) (Filed on 1/3/2007) (Entered: 01/03/2007)
190 JOINT CASE MANAGEMENT STATEMENT filed by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 1/5/2007) (Entered: 01/05/2007)
191 STIPULATION and [Proposed] Order Continuing Pretrial Conference by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Prestel, Claire) (Filed on 1/8/2007) (Entered: 01/08/2007)
192 ORDER adjusting briefing schedule. Signed by Judge Illston on 1/8/07. (ts, COURT STAFF) (Filed on 1/9/2007) (Entered: 01/09/2007)
193 ORDER continuing pretrial conference. Signed by Judge Illston on 1/8/07. (ts, COURT STAFF) (Filed on 1/9/2007) (Entered: 01/09/2007)
194 ***DUPLICATE OF #193***ORDER continuing pretrial conference. Signed by Judge Illston on 1/8/07. (ts, COURT STAFF) (Filed on 1/9/2007) Modified on 1/10/2007 (ys, COURT STAFF). (Entered: 01/09/2007)
195 ORDER granting motion for pro hac vice of Cynthia J. Collins. Signed by Judge Susan Illston on 1/8/07. (ys, COURT STAFF) (Filed on 1/9/2007) (Entered: 01/09/2007)
Set Deadlines/Hearings: Pretrial Conference set for 1/30/2007 03:30 PM. (ys, COURT STAFF) (Filed on 1/9/2007) (Entered: 01/10/2007)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 60 of 83

01/09/2007 01/11/2007 01/11/2007 01/12/2007
01/12/2007 01/15/2007
01/16/2007

Set/Reset Deadlines as to 169 MOTION for an Order Precluding Defendant from Introducing Evidence Regarding the Racial Composition of Upper−Level Management; Memorandum of Points and Authorities in Support Thereof, 170 MOTION and Memorandum to Preclude Non−Rebuttal Labor Economist Opinion of Mary Baker Raised for the First Time in Her Rebuttal Report, or, in the Alternative, to Permit Plaintiffs to Submit a Rebuttal Report of a Labor Economist Responding, 176 MOTION an Order finding Snyder deposition testimony to be admissible. Motion Hearing set for 1/30/2007 03:30 PM. (ys, COURT STAFF) (Filed on 1/9/2007) (Entered: 01/10/2007)
196 ORDER granting motion to compel. Signed by Judge Illston on 1/11/07. (ts, COURT STAFF) (Filed on 1/11/2007) (Entered: 01/11/2007)
211 Reply Memorandum re 176 MOTION an Order finding Snyder deposition testimony to be admissible filed byplaintiffs. FILED UNDER SEAL.(ys, COURT STAFF) (Filed on 1/11/2007) (Entered: 01/18/2007)
197 STIPULATION and [Proposed] Order Allowing Plaintiffs' Reply in Support of Motion for an Order Finding Snyder Deposition Testimony to be Admissible, and the Supporting Prestel Declaration, to be Filed Under Seal by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Prestel, Claire) (Filed on 1/12/2007) (Entered: 01/12/2007)
Set/Reset Deadlines as to 169 MOTION for an Order Precluding Defendant from Introducing Evidence Regarding the Racial Composition of Upper−Level Management; Memorandum of Points and Authorities in Support Thereof, 170 MOTION and Memorandum to Preclude Non−Rebuttal Labor Economist Opinion of Mary Baker Raised for the First Time in Her Rebuttal Report, or, in the Alternative, to Permit Plaintiffs to Submit a Rebuttal Report of a Labor Economist Responding, 176 MOTION an Order finding Snyder deposition testimony to be admissible. Motion Hearing set for 2/9/2007 09:00 AM. (ys, COURT STAFF) (Filed on 1/12/2007) (Entered: 01/16/2007)
198 NOTICE of change of hearing date re 169 , 170 , 171 to 2/9/07 at 9:00 a.m. by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis of Change of Hearing Date (Prestel, Claire) (Filed on 1/15/2007) Modified on 1/16/2007 (ys, COURT STAFF). (Entered: 01/15/2007)
199 Reply Memorandum in Support of 169 Motion for an Order Precluding Defendant from Introducing Evidence Regarding the Racial Composition of Upper−Level Management filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Prestel, Claire) (Filed on 1/16/2007) Modified on 1/17/2007 (ys, COURT STAFF). (Entered: 01/16/2007)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 61 of 83

01/16/2007
01/17/2007 01/17/2007
01/17/2007
01/17/2007 01/17/2007 01/17/2007 01/17/2007 01/17/2007 01/17/2007

200 Declaration of Claire Prestel in Support of 199 Reply in support of Motion for an Order Precluding Defendant from Introducing Evidence Regarding the Racial Composition of Upper−Level Management filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Prestel, Claire) (Filed on 1/16/2007) Modified on 1/17/2007 (ys, COURT STAFF). (Entered: 01/16/2007)
201 Order Dismissing Class Claims Under The California Fair Employment and Housing Act by Fedex Express.. Signed by Judge Illston on 1/16/07. (ts, COURT STAFF) (Filed on 1/17/2007) (Entered: 01/17/2007)
202 Minute Entry: Further Case Management Conference held on 1/12/2007 before Illston (Date Filed: 1/17/2007). Case continued to 2/9/07 for motions in limine(reply due 1/16/07)Case continued to 3/2/07 for motions in limine (File 1/19/07, opposition, 2/2/07, reply 2/9/07)?Case continued to 3/13/07 @ 3:30 p.m. for pretrial conferencePretrial statement due 2/27/07Case continued to 4/2/07 @ 8:30 a.m. for Jury trial ORDERED AFTER HEARING: The pretrial and trial dates were continued as indicated above.Counsel will discuss the use of jury questionnaires during the 2/9/07 hearing. () (ts, COURT STAFF) (Date Filed: 1/17/2007) (Entered: 01/17/2007)
203 Letter/ MOTION to Compel Additional Documents and Deposition filed by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Cervantez, Eve) (Filed on 1/17/2007) Modified on 1/18/2007 (ys, COURT STAFF). (Entered: 01/17/2007)
204 PRETRIAL ORDER. Signed by Judge Illston on 1/16/07. (Attachments: # 1)(ts, COURT STAFF) (Filed on 1/17/2007) (Entered: 01/17/2007)
205 NOTICE of Change of Address by Chimene I. Keitner (Keitner, Chimene) (Filed on 1/17/2007) (Entered: 01/17/2007)
206 ORDER granting leave to seal reply in support of motion finding Snyder Depo to be admissable. Signed by Judge Illston on 1/16/07. (ts, COURT STAFF) (Filed on 1/17/2007) (Entered: 01/17/2007)
207 Plaintiffs' Reply in Support of 170 Motion to Preclude Non−Rebuttal Labor Economist Opinion of Mary Baker Raised for the First Time in Her Rebuttal Report, or in the Alternative, to Permit Plaintiffs to Submit a Responsive Rebuttal Report filed byPatricia Caldwell. (Finberg, James) (Filed on 1/17/2007) Modified on 1/18/2007 (ys, COURT STAFF). (Entered: 01/17/2007)
208 Supplemental Declaration of James M. Finberg in Support of 170 Plaintiffs' Motion and Memorandum to Preclude Non−Rebuttal Labor Economist Opinion of Mary Baker, Etc. filed byPatricia Caldwell. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C− Section 1# 4 Exhibit C− Section 2# 5 Exhibit C− Section 3# 6 Exhibit C− Section 4# 7 Exhibit D# 8 Exhibit E# 9 Exhibit F# 10 Exhibit G# 11 Exhibit H)(Finberg, James) (Filed on 1/17/2007) Modified on 1/18/2007 (ys, COURT STAFF). (Entered: 01/17/2007)
209 NOTICE by Patricia Caldwell of Errata Re: 199 Plaintiffs' Reply in Support of Motion for an Order Precluding Defendant From Introducing Evidence Regarding the Racial Composition of Upper−Level Management (Finberg, James) (Filed on 1/17/2007)

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Modified on 1/18/2007 (ys, COURT STAFF). (Entered: 01/17/2007)
210 Reply Memorandum Plaintiffs' Corrected Reply in Support of Motion for an Order Precluding Defendant From Introducing Evidence Regarding the Racial Composition of Upper−Level Management filed byPatricia Caldwell. (Finberg, James) (Filed on 1/17/2007) (Entered: 01/17/2007)
Set Deadlines/Hearings: Jury Trial set for 4/2/2007 08:30 AM. Pretrial Conference set for 3/13/2007 03:30 PM. (ys, COURT STAFF) (Filed on 1/17/2007) (Entered: 01/18/2007)
212 Declaration of Claire Prestel in Support of 211 Reply Memorandum filed byplaintiffs. FILED UNDER SEAL.(Related document(s) 211 ) (ys, COURT STAFF) (Filed on 1/17/2007) (Entered: 01/18/2007)
213 MOTION in Limine No. 4 to Preclude Defendant's Expert Mary Baker's Analysis and Opinion Controlling for the Race of Managers filed by Patricia Caldwell. Motion Hearing set for 3/2/2007 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Finberg, James) (Filed on 1/19/2007) (Entered: 01/19/2007)
214 Declaration of James M. Finberg in Support of 213 Plaintiffs' Motion in Limine No. 4 to Preclude Defendant's Expert Mary Baker's Analysis and Opinion Controlling for the Race of Managers filed byPatricia Caldwell. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K)(Finberg, James) (Filed on 1/19/2007) Modified on 1/22/2007 (ys, COURT STAFF). (Entered: 01/19/2007)
215 MOTION in Limine No. 5 filed by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. Motion Hearing set for 3/2/2007 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Evenson, Rebekah) (Filed on 1/19/2007) (Entered: 01/19/2007)
216 Declaration of James M. Finberg in support of 215 plaintiffs' Motion in Limine No.5 filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit Exhibit A)(Evenson, Rebekah) (Filed on 1/19/2007) Modified on 1/22/2007 (ys, COURT STAFF). (Entered: 01/19/2007)
217 MOTION in Limine Plaintiffs' Motion in Limine No. 6 to Exclude Duffy Testimony and Conclusions and Related Exhibits filed by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. Motion Hearing set for 3/2/2007 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Finberg, James) (Filed on 1/19/2007) (Entered: 01/19/2007)
218 Declaration of Claire Prestel in Support of 217 Plaintiffs' Motion in Limine No. 6 to Exclude Duffy Testimony, Conclusions, and Related Exhibits filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick

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Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Errata 6# 7 Exhibit 7 part 1# 8 Exhibit 7 part 2# 9 Exhibit 8# 10 Exhibit 9)(Finberg, James) (Filed on 1/19/2007) Modified on 1/22/2007 (ys, COURT STAFF). (Entered: 01/19/2007)
219 EXHIBITS 10 (Parts 1−5) to 218 Prestel Declaration in Support of Plaintiffs' Motion to Exclude Duffy Testimony, Conclusions and Related Exhibits filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit 10 part 2# 2 Exhibit 10 Part 3# 3 Exhibit 10 Part 4# 4 Exhibit 10 Part 5)(Finberg, James) (Filed on 1/19/2007) Modified on 1/22/2007 (ys, COURT STAFF). (Entered: 01/19/2007)
220 EXHIBITS 10 (Parts 6−12) to 218 Prestel Declaration in Support of Plaintiffs' Motion to Exclude Duffy Testimony, Conclusions and Related Exhibits filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit 10 Part 7# 2 Exhibit 10 Part 8# 3 Exhibit 10 Part 9# 4 Exhibit 10 Part 10# 5 Exhibit 10 Part 11# 6 Exhibit 10 Part 12)(Finberg, James) (Filed on 1/19/2007) Modified on 1/22/2007 (ys, COURT STAFF). (Entered: 01/19/2007)
221 EXHIBITS 11−16 to 218 Prestel Declaration in Support of Plaintiffs' Motion to Exclude Duffy Testimony, Conclusions and Related Exhibits filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit 12# 2 Exhibit 13# 3 Exhibit 14# 4 Exhibit 15# 5 Exhibit 16)(Finberg, James) (Filed on 1/19/2007) Modified on 1/22/2007 (ys, COURT STAFF). (Entered: 01/19/2007)
222 EXHIBITS 17−20 to 218 Prestel Declaration in Support of Plaintiffs' Motion to Exclude Duffy Testimony, Conclusions and Related Exhibits filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis.

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(Attachments: # 1 Exhibit 18# 2 Exhibit 19# 3 Exhibit 20)(Finberg, James) (Filed on 1/19/2007) Modified on 1/22/2007 (ys, COURT STAFF). (Entered: 01/19/2007)
223 MOTION in Limine (Summary of Plaintiffs' Motions in Limine) filed by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Prestel, Claire) (Filed on 1/23/2007) (Entered: 01/23/2007)
224 Letter from GILMORE F. DIEKMANN, JR. −−DEFENDANT'S LETTER BRIEF IN OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL ADDITIONAL DOCUMENTS AND DEPOSITION (Document 203)−−. (Attachments: # 1 Exhibit −−EXHIBIT A−−# 2 Exhibit −−EXHIBIT B−E−−)(Diekmann, Gilmore) (Filed on 1/25/2007) (Entered: 01/25/2007)
225 Letter/Reply to 224 Opposition to Motion To Compel Additional Documents and Deposition filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Cervantez, Eve) (Filed on 1/26/2007) Modified on 1/29/2007 (ys, COURT STAFF). (Entered: 01/26/2007)
226 Letter from GILMORE F. DIEKMANN, JR. −−LETTER/REPLY TO PLAINTIFFS' LETTER/REPLY (DOCKET NO. 225) RE: PLAINTIFFS' MOTION TO COMPEL ADDITIONAL DOCUMENTS AND DEPOSITION−−. (Diekmann, Gilmore) (Filed on 1/30/2007) (Entered: 01/30/2007)
227 Memorandum in Opposition to FedEx's Motion in Limine No. 10 (to Preclude the Introduction of Data Summaries that Confuse and Misrepresent the Issues to be Decided) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 2/2/2007) (Entered: 02/02/2007)
228 Declaration of James M. Finberg in Support of 227 Plaintiffs' Opposition to FedEx's Motion in Limine No. 10 (to Preclude the Introduction of Data Summaries that Confuse and Misrepresent the Issues to be Decided) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Finberg, James) (Filed on 2/2/2007) Modified on 2/5/2007 (ys, COURT STAFF). (Entered: 02/02/2007)
229 Memorandum in Opposition to FedEx's Motion in Limine No. 12 (to Exclude All Evidence of Internal or External Complaints of Discrimination Based on Sex, Age, Retaliation, and/or Sexual Harassment) filed byDesmond Carter, Kevyn Cameron,

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Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Cervantez, Eve) (Filed on 2/2/2007) (Entered: 02/02/2007)
230 Declaration of Eve H. Cervantez in Support of 229 Memorandum in Opposition,,, to FedEx's Motion in Limine No. 12 (to Exclude All Evidence of Internal or External Complaints of Discrimination Based on Sex, Age, Retaliation, and/or Sexual Harassmnet) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Related document(s) 229 ) (Cervantez, Eve) (Filed on 2/2/2007) (Entered: 02/02/2007)
231 Memorandum in Opposition to FedEx's Motion in Limine No. 14 filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Prestel, Claire) (Filed on 2/2/2007) (Entered: 02/02/2007)
232 Declaration of claire Prestel in support of 231 Opposition to FedEx's Motion in Limine No. 14 filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit 1 to Prestel Decl in Opp to FedEx MIL 14# 2 Exhibit 2 to Prestel Decl in Opp to FedEx MIL 14# 3 Exhibit 3 (part 1 of 2) to Prestel Decl in Opp to FedEx MIL 14# 4 Exhibit 3 (part 2 of 2) to Prestel Decl in Opp to FedEx MIL 14# 5 Exhibit 4 to Prestel Decl in Opp to FedEx MIL 14# 6 Exhibit 5 to Prestel Decl in Opp to FedEx MIL 14# 7 Exhibit 6 to Prestel Decl in Opp to FedEx MIL 14# 8 Exhibit 7 to Prestel Decl in Opp to FedEx MIL 14)(Prestel, Claire) (Filed on 2/2/2007) Modified on 2/5/2007 (ys, COURT STAFF). (Entered: 02/02/2007)
233 STIPULATION and [Proposed] Order Allowing Defendant's Motion in Limine No. 8, Plainitiffs' Opposition to that Motion, and Plaintiffs' Supporting Prestel Declaration to be Filed Under Seal by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Prestel, Claire) (Filed on 2/2/2007) (Entered: 02/02/2007)

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234 Memorandum in Opposition [Plaintiffs' Opposition to FedEx's Motion in Limine No. 7 (Preclude Speculative Testimony Regarding Disciplinary Action Taken Against Other FedEx Employees)] filed byDerrick Satchell, Cynthia Guerrero, Rachel Hutchins, Rick Gonzales, Ken Stevenson, Kelvin Smith Sr.. (Attachments: # 1 Declaration of Michael S. Davis in Support of Plaintiffs' Opposition to FedEx's Motion in Limine No. 7 (Preclude Speculative Testimony Regarding Disciplinary Action Taken Against Other FedEx Employees))(Davis, Michael) (Filed on 2/2/2007) (Entered: 02/02/2007)
235 Memorandum in Opposition PLAINTIFFS' OPPOSITION TO FEDEX'S MOTION IN LIMINE NO. 3 filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 2/2/2007) (Entered: 02/02/2007)
236 Memorandum in Opposition to Fedex's Motion in Limine No. 5 (Exclude Snyder Deposition Testimony) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Prestel, Claire) (Filed on 2/2/2007) (Entered: 02/02/2007)
237 Memorandum in Opposition to FedEx's Motion in Limine No. 1 (To Exclude Evidence (A) That the BST is Not Valid, and (B) of a Specific Equally Valid Less Adverse Alternative to the BST) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Cervantez, Eve) (Filed on 2/2/2007) (Entered: 02/02/2007)
238 DECLARATION of Stuart Naifeh in support of 235 PLAINTIFFS' OPPOSITION TO FEDEX'S MOTION IN LIMINE NO. 3 filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit Exhibit A to Declaration of Stuart Naifeh# 2 Exhibit Exhibit B to Declaration of Stuart Naifeh# 3 Exhibit Exhibit C to Declaration of Stuart Naifeh# 4 Exhibit Exhibit D to Declaration of Stuart Naifeh# 5 Exhibit Exhibit E to Declaration of Stuart Naifeh# 6 Exhibit Exhibit F to Declaration of Stuart Naifeh# 7 Exhibit Exhibit G to Declaration of Stuart Naifeh# 8 Exhibit Exhibit H to Declaration of Stuart Naifeh)(Finberg, James) (Filed on 2/2/2007) Modified on 2/5/2007 (ys, COURT STAFF). (Entered: 02/02/2007)
239 EXHIBITS re 238 Declaration in Opposition,,,, filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith

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Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit Exhibit J to Declaration of Stuart Naifeh# 2 Exhibit Exhibit K to Declaration of Stuart Naifeh# 3 Exhibit Exhibit L to Declaration of Stuart Naifeh# 4 Exhibit Exhibit M to Declaration of Stuart Naifeh# 5 Exhibit Exhibit N to Declaration of Stuart Naifeh# 6 Exhibit Exhibit O to Declaration of Stuart Naifeh# 7 Exhibit Exhibit P to Declaration of Stuart Naifeh)(Related document(s) 238 ) (Finberg, James) (Filed on 2/2/2007) (Entered: 02/02/2007)
240 Memorandum in Opposition to Defendant's Motion in Limine No. 6 (Exclude Persons Not Identified by Plaintiffs in their Fed.R.Civ.P.26 Disclosures) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Cervantez, Eve) (Filed on 2/2/2007) (Entered: 02/02/2007)
241 Memorandum in Opposition to Fedex's Motion in Limine No. 4 (To Exclude from Evidence Correspondence from the OFCCP Identifying its Concerns Regarding the BST, and Related Documents Concerning the OFCCP's Investigation) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Prestel, Claire) (Filed on 2/2/2007) (Entered: 02/02/2007)
242 Declaration of Eve H. Cervantez in Support of 240 Memorandum in Opposition,,, to FedEx's Motion in Limine No. 6 (Exclude Persons Not Identified by Plaintiffs in their Fed.R.Civ.P.26 Disclosures) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H)(Related document(s) 240 ) (Cervantez, Eve) (Filed on 2/2/2007) (Entered: 02/02/2007)
243 Declaration of James M. Finberg in Support of 240 Memorandum in Opposition,,, to FedEx's Motion in Limine No. 6 (Exclude Persons Not Identified by Plaintiffs in their Fed.R.Civ.P.26 Disclosures) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 240 ) (Cervantez, Eve) (Filed on 2/2/2007) (Entered: 02/02/2007)
244 Declaration of Michael S. Davis in Support of 240 Memorandum in Opposition,,, to FedEx's Motion in Limine No. 6 (Exclude Persons Not Identified by Plaintiffs in their Fed.R.Civ.P.26 Disclosures filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial

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Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Related document(s) 240 ) (Cervantez, Eve) (Filed on 2/2/2007) (Entered: 02/02/2007)
245 Declaration of Claire Prestel in Support of 241 Plaintiffs' Opposition to Fedex's Motion in Limine No. 4 (To Exclude from Evidence Correspondence from the OFCCP Identifying its Concerns Regarding the BST etc.) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9)(Prestel, Claire) (Filed on 2/2/2007) Modified on 2/5/2007 (ys, COURT STAFF). (Entered: 02/02/2007)
246 Memorandum in Opposition to FedEx's Motion in Limine No. 2 (To Exclude Evidence (A) that FedEx's Performance Reviews Are Not Valid and/or (B) of the Existence of an Equally Valid Less Adverse Alternative to Them) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Cervantez, Eve) (Filed on 2/2/2007) (Entered: 02/02/2007)
247 Declaration of Eve H. Cervantez in Support of 246 Memorandum in Opposition,,, to FedEx's Motion in Limine No. 2 (To Exclude Evidence (A) That FedEx's Performance Reviews Are Not Valid and/or (B) of the Existence of an Equally Valid Less Adverse Alternative to Them) filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Related document(s) 246 ) (Cervantez, Eve) (Filed on 2/2/2007) (Entered: 02/02/2007)
248 EXHIBITS re 247 Declaration in Support,,,, Exhibit K filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Related document(s) 247 ) (Cervantez, Eve) (Filed on 2/2/2007) (Entered: 02/02/2007)

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249 Declaration of Eve H. Cervantez in Support of 237 Plaintiffs' Opposition to FedEx's Motion in Limine No. 1 (To Exclude Evidence (A) That the BST is Not Valid, and (B) of a Specific Equally Valid Less Adverse Alternative to the BST filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15)(Cervantez, Eve) (Filed on 2/2/2007) Modified on 2/5/2007 (ys, COURT STAFF). (Entered: 02/02/2007)
250 Memorandum in Opposition to FedEx's Motion In Limine No. 13 to Exclude Evidence of Other Lawsuits or Jury Verdicts Against FedEx filed byPatricia Caldwell. (Parker, Kay) (Filed on 2/2/2007) (Entered: 02/02/2007)
252 MEMORANDUM in Opposition to Fedex's Motion in limine NO.8 (Exclude Testimony based on Poehlman Study etc.) filed byplaintiffs. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 2/2/2007) (Entered: 02/07/2007)
253 Declaration of Anthony G. Greenwald in Support of 252 Memorandum in Opposition filed byplaintiffs. FILED UNDER SEAL.(Related document(s) 252 ) (ys, COURT STAFF) (Filed on 2/2/2007) (Entered: 02/07/2007)
254 Declaration of Claire Prestel in Support of 252 Memorandum in Opposition filed byplaintiffs. FILED UNDER SEAL.(Related document(s) 252 ) (ys, COURT STAFF) (Filed on 2/2/2007) (Entered: 02/07/2007)
251 ORDER granting leave to seal re: oppo. to motion in limine No. 8.. Signed by Judge Illston on 2/5/07. (ts, COURT STAFF) (Filed on 2/6/2007) (Entered: 02/06/2007)
255 Reply Memorandum of Points and Authorities in Support of Motion in Limine No. 5 to Preclude Defense Counsel's Improper Comments During Argument filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Evenson, Rebekah) (Filed on 2/9/2007) (Entered: 02/09/2007)
256 Declaration of Rebekah B. Evenson in Support of Plaintiffs' Motion in Limine No. 5 to Preclude Defense Counsel's Improper Comments During Argument filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A to Decl or Rebekah B. Evenson ISO MIL No. 5)(Evenson, Rebekah) (Filed on 2/9/2007) (Entered: 02/09/2007)
257 Reply Memorandum −−REPLY MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE NO. 1 (TO EXCLUDE EVIDENCE (A) THAT THE BST IS NOT VALID, AND (B) OF A SPECIFIC EQUALLY VALID LESS ADVERSE ALTERNATIVE TO THE BST)−− filed byFedex Services, Fedex Ground, Fedex Corporation, Fedex Express, Feddex Ground Package System, Inc.. (Diekmann, Gilmore) (Filed on 2/9/2007) (Entered: 02/09/2007)

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258 Reply Memorandum −−REPLY MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE NO. 2 (TO EXCLUDE EVIDENCE (A) THAT FEDEX'S PERFORMANCE REVIEWS ARE NOT VALID AND/OR (B) OF THE EXISTENCE OF AN EQUALLY VALID LESS ADVERSE ALTERNATIVE TO THEM)−− filed byFedex Services, Fedex Ground, Fedex Corporation, Fedex Express, Feddex Ground Package System, Inc.. (Diekmann, Gilmore) (Filed on 2/9/2007) (Entered: 02/09/2007)
259 Reply Memorandum −−REPLY MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE NO. 4 (TO EXCLUDE FROM EVIDENCE CORRESPONDENCE FROM THE OFCCP REGARDING THE BST AND RELATED DOCUMENTS CONCERNING THE OFCCP'S INVESTIGATION)−− filed byFedex Services, Fedex Ground, Fedex Corporation, Fedex Express, Feddex Ground Package System, Inc.. (Diekmann, Gilmore) (Filed on 2/9/2007) (Entered: 02/09/2007)
260 *** FILED IN ERROR. DOCUMENT LOCKED. NO NEW DOCUMENT. *** Reply Memorandum −−REPLY MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE NO. 8 (POEHLMAN PAPER)−− filed byFedex Services, Fedex Ground, Fedex Corporation, Fedex Express, Feddex Ground Package System, Inc.. (Attachments: # 1 Exhibit −−EXHIBIT A−−)(Diekmann, Gilmore) (Filed on 2/9/2007) Modified on 2/12/2007 (ewn, COURT STAFF). (Entered: 02/09/2007)
261 Reply Memorandum −−REPLY MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE NO. 10 (TO EXCLUDE MISLEADING AND CONFUSING STATISTICAL SUMMARIES)−− filed byFedex Services, Fedex Ground, Fedex Corporation, Fedex Express, Feddex Ground Package System, Inc.. (Diekmann, Gilmore) (Filed on 2/9/2007) (Entered: 02/09/2007)
262 Reply Memorandum In Support of Plaintiffs' Motion in Limine No. 6 for an Order Excluding the Conclusions and Testimony of Jan Duffy and Related Exhibits filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Prestel, Claire) (Filed on 2/9/2007) (Entered: 02/09/2007)
263 Declaration of Claire Prestel Reply Declaration In Support of Plaintiffs' Motion in Limine No. 6 for an Order Excluding the Conclusions and Testimony of Jan Duffy and Related Exhibits filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit 1)(Prestel, Claire) (Filed on 2/9/2007) (Entered: 02/09/2007)
264 Reply Memorandum in Support of Plaintiffs' Motion in Limine No. 4 to Preclude Defendant's Expert Mary Baker's Analysis and Opinion Controlling for the Race of Managers filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Cervantez, Eve) (Filed on 2/9/2007) (Entered: 02/09/2007)
265 Declaration of Eve H. Cervantez in Support of 264 Reply Memorandum,,, in Support of Plaintiffs' Reply Regarding Motion in Limine No. 4 to Preclude Defendant's Expert Mary Baker's Analysis and Opinion Controlling for the Race of Managers filed

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byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 264 ) (Cervantez, Eve) (Filed on 2/9/2007) (Entered: 02/09/2007)
266 ORDER granting leave to file in excess of page limit. Signed by Judge Illston on 2/14/07. (ts, COURT STAFF) (Filed on 2/15/2007) (Entered: 02/15/2007)
267 Letter from GILMORE F. DIEKMANN, JR. −−RE: PROPOSED PROCEDURAL STEPS FOR JURY SELECTION AND VOIR DIRE−−. (Attachments: # 1 Exhibit −−JUROR QUESTIONNAIRE−−)(Diekmann, Gilmore) (Filed on 2/16/2007) (Entered: 02/16/2007)
268 STIPULATION and Proposed Order Setting Briefing Schedule for Parties' Verdict Form Disputes and Continuing Filing Deadline for Pretrial Conference Statement by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 2/21/2007) (Entered: 02/21/2007)
269 ORDER setting hearing date re: verdict disputes. Signed by Judge Illston on 2/21/07. (ts, COURT STAFF) (Filed on 2/22/2007) (Entered: 02/22/2007)
270 pretrial filings due: 4/3/07CLERK'S NOTICE (ts, COURT STAFF) (Filed on 2/27/2007) (Entered: 02/27/2007)
271 STIPULATION AND [PROPOSED] ORDER SETTING BRIEFING SCHEDULE FOR PARTIES' VERDICT FORM DISPUTES by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Cervantez, Eve) (Filed on 2/27/2007) (Entered: 02/27/2007)
272 ORDER setting hearing on disputes re: verdict forms. Signed by Judge Illston on 3/2/07. (ts, COURT STAFF) (Filed on 3/6/2007) (Entered: 03/06/2007)
Set Deadlines/Hearings: Final Pretrial Conference set for 4/17/2007 03:30 PM. Jury Trial set for 5/7/2007 08:30 AM. (ys, COURT STAFF) (Filed on 3/6/2007) (Entered: 03/07/2007)
273 NOTICE by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis WITHDRAWAL OF COUNSEL (Lee, Bill) (Filed on 3/9/2007) (Entered: 03/09/2007)

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274 ORDER by Judge Illston granting 178 Motion granting request to designate Altshuler, Berzon, Nussbaum, Rubin & Demain as class counsel. (ts, COURT STAFF) (Filed on 3/22/2007) (Entered: 03/22/2007)
275 STIPULATION AND [PROPOSED] ORDER CONTINUING DEADLINE FOR FILING PRETRIAL CONFERENCE STATEMENT AND BRIEFS, AND CONTINUING HEARING ON MOTIONS IN LIMINE by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 4/2/2007) (Entered: 04/02/2007)
276 ORDER continuing 4/6/07 motions in limine to 4/13/07. Signed by Judge Illston on 4/3/07. (ts, COURT STAFF) (Filed on 4/4/2007) Modified on 4/5/2007 (ys, COURT STAFF). (Entered: 04/04/2007)
Set/Reset Deadlines as to 215 MOTION in Limine No. 5, 217 MOTION in Limine Plaintiffs' Motion in Limine No. 6 to Exclude Duffy Testimony and Conclusions and Related Exhibits, 223 MOTION in Limine (Summary of Plaintiffs' Motions in Limine), 213 MOTION in Limine No. 4 to Preclude Defendant's Expert Mary Baker's Analysis and Opinion Controlling for the Race of Managers. Motion Hearing set for 4/13/2007 09:00 AM. (ys, COURT STAFF) (Filed on 4/4/2007) (Entered: 04/05/2007)
277 MOTION for Order: (1) Preliminary Approval of Class Action Settlement; (2) Provisionally Certifying Settlement Classes; (3) Directing Distribution of Notice of the Settlement; and (4) Setting a Schedule for the Final Settlement Approval Process; Memorandum of support thereof filed by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. Motion Hearing set for 4/13/2007 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (Finberg, James) (Filed on 4/9/2007) Modified on 4/10/2007 (ys, COURT STAFF). (Entered: 04/09/2007)
278 Declaration of James M. Finberg in Support of 277 Plaintiffs' Motion for Preliminary Approval of Class Action Settlement filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A)(Finberg, James) (Filed on 4/9/2007) Modified on 4/10/2007 (ys, COURT STAFF). (Entered: 04/09/2007)
279 Declaration of Barry Goldstein in Support of 277 Plaintiffs' Motion for Preliminary Approval of Class Action Settlement filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Appendix A# 2 Appendix B)(Finberg, James) (Filed on 4/9/2007) Modified on 4/10/2007 (ys, COURT STAFF). (Entered: 04/09/2007)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 73 of 83

04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/09/2007 04/13/2007 04/20/2007

280 Proposed Order re 277 Preliminarily Approving Class Action Settlement by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 4/9/2007) Modified on 4/10/2007 (ys, COURT STAFF). (Entered: 04/09/2007)
281 EXHIBITS re 280 Proposed Order,, Ex. 1, Part 1 − Consent Decree filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Related document(s) 280 ) (Finberg, James) (Filed on 4/9/2007) (Entered: 04/09/2007)
282 EXHIBITS re 280 Proposed Order,, Ex. 1, Part 2 − Consent Decree filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Related document(s) 280 ) (Finberg, James) (Filed on 4/9/2007) (Entered: 04/09/2007)
283 EXHIBITS re 280 Proposed Order,, Ex. 2 − Class Notice filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Related document(s) 280 ) (Finberg, James) (Filed on 4/9/2007) (Entered: 04/09/2007)
284 EXHIBITS re 280 Proposed Order,, Ex. 3 − Claim Form filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Related document(s) 280 ) (Finberg, James) (Filed on 4/9/2007) (Entered: 04/09/2007)
285 ORDER by Judge Illston granting 277 Motion for Settlement ; FINAL APPROVAL HEARING 8/9/07 @ 3:30 p.m. (Attachments: # 1 # 2 # 3 # 4) (ts, COURT STAFF) (Filed on 4/13/2007) (Entered: 04/13/2007)
286 STIPULATION and [Proposed] Order re Notice in Spanish by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos,

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 74 of 83

04/25/2007 05/11/2007
05/14/2007 06/05/2007 06/07/2007 06/13/2007
06/13/2007
06/13/2007

Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A)(Finberg, James) (Filed on 4/20/2007) (Entered: 04/20/2007)
287 ORDER re: notice in spanish. Signed by Judge Illston on 4/24/07. (Attachments: # 1)(ts, COURT STAFF) (Filed on 4/25/2007) (Entered: 04/25/2007)
288 STIPULATION AND [PROPOSED] ORDER APPROVING REVISED NOTICE AND CLAIM FORM by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Finberg, James) (Filed on 5/11/2007) (Entered: 05/11/2007)
289 ORDER approving revised notice and claim form. Signed by Judge Illston on 5/14/07. (Attachments: # 1 # 2)(ts, COURT STAFF) (Filed on 5/14/2007) (Entered: 05/14/2007)
290 ORDER by Judge Illston granting (826) Motion to Stay execution of judgment and requiring posting of supersedeas bond (SI, COURT STAFF) (Filed on 6/5/2007) (Entered: 06/05/2007)
291 NOTICE of Posting of Supersedeads Bond by Fedex Corporation. (ys, COURT STAFF) (Filed on 6/7/2007) (Entered: 06/08/2007)
292 STIPULATION AND [PROPOSED] ORDER RE INTERPRETATION OF SECTION XXII.A.1 OF THE CONSENT DECREE by Derrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 6/13/2007) (Entered: 06/13/2007)
293 MOTION for Attorney Fees ADMINISTRATIVE MOTION TO SUBMIT DETAILED TIME RECORDS FOR IN CAMERA REVIEW filed by Derrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 6/13/2007) (Entered: 06/13/2007)
294 Declaration of JAMES M. FINBERG IN SUPPORT OF 293 PLAINTIFFS' ADMINISTRATIVE MOTION TO SUBMIT DETAILED TIME RECORDS FOR IN CAMERA REVIEW filed byDerrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales,

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06/13/2007
06/20/2007 06/20/2007 06/22/2007
06/22/2007
06/22/2007

Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 6/13/2007) Modified on 6/14/2007 (ys, COURT STAFF). (Entered: 06/13/2007)
295 Proposed Order re 293 REQUIRING PLAINTIFFS TO SUBMIT DETAILED TIME RECORDS FOR IN CAMERA REVIEW by Derrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 6/13/2007) Modified on 6/14/2007 (ys, COURT STAFF). (Entered: 06/13/2007)
296 STIPULATION AND ORDER re: Interpretation of Section XXII.A.1 of the Consent Decree. Signed by Judge Susan Illston on 06/19/07. (rbe, COURT STAFF) (Filed on 6/20/2007) (Entered: 06/20/2007)
297 ORDER by Judge Susan Illston granting 293 Motion to submit detailed time records for In Camera Review. (rbe, COURT STAFF) (Filed on 6/20/2007) (Entered: 06/20/2007)
298 MOTION for Attorney Fees APPLICATION OF PLAINTIFFS FOR ATTORNEYS FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES filed by Derrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. Motion Hearing set for 8/9/2007 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (Cervantez, Eve) (Filed on 6/22/2007) (Entered: 06/22/2007)
299 Declaration of Eve H. Cervantez IN SUPPORT OF 298 APPLICATION OF PLAINTIFFS FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES filed byDerrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit A Part 1# 2 Exhibit A Part 2# 3 Exhibit B Part 1# 4 Exhibit B Part 2# 5 Exhibit C# 6 Exhibit D# 7 Exhibit E# 8 Exhibit G# 9 Exhibit F)(Cervantez, Eve) (Filed on 6/22/2007) Modified on 6/25/2007 (ys, COURT STAFF). (Entered: 06/22/2007)
300 ERRATA TO 298 APPLICATION AND CORRECTED APPLICATION OF PLAINTIFFS FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES by Derrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith,

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07/05/2007 07/05/2007 07/05/2007 07/05/2007

Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Errata Corrected Application of Plaintiffs for Attorneys' Fees and for Reimbursement of Costs and Expenses)(Cervantez, Eve) (Filed on 6/22/2007) Modified on 6/25/2007 (ys, COURT STAFF). (Entered: 06/22/2007)
301 MOTION for Settlement 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 filed by Derrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. Motion Hearing set for 8/9/2007 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (Finberg, James) (Filed on 7/5/2007) (Entered: 07/05/2007)
302 Declaration of JAMES M. FINBERG IN SUPPORT OF 302 MOTION FOR FINAL SETTLEMENT APPROVAL filed byDerrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 7/5/2007) Modified on 7/6/2007 (ys, COURT STAFF). (Entered: 07/05/2007)
303 Declaration of BARRY GOLDSTEIN IN SUPPORT OF 301 MOTION FOR FINAL SETTLEMENT APPROVAL filed byDerrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 7/5/2007) Modified on 7/6/2007 (ys, COURT STAFF). (Entered: 07/05/2007)
304 Declaration of MARK PATTON WITH RESPECT TO 301 MOTION FOR FINAL SETTLEMENT APPROVAL filed byDerrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis,

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 77 of 83

07/05/2007 07/05/2007 07/05/2007 07/05/2007

Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 7/5/2007) Modified on 7/6/2007 (ys, COURT STAFF). (Entered: 07/05/2007)
305 Proposed Order (1) CONFIRMING FINAL CERTIFICATION OF CLASSES AND (2) GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND CONSENT DECREE by Derrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 7/5/2007) (Entered: 07/05/2007)
306 Proposed Order [PROPOSED] FINAL JUDGMENT by Derrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 7/5/2007) (Entered: 07/05/2007)
307 NOTICE OF MOTION AND MOTION FOR APPROVAL OF SERVICE PAYMENTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Derrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. Motion Hearing set for 8/9/2007 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (Finberg, James) (Filed on 7/5/2007) Modified on 8/3/2007 (ys, COURT STAFF). (Entered: 07/05/2007)
308 Declaration of James M. Finberg IN SUPPORT OF 307 MOTION FOR APPROVAL OF SERVICE PAYMENTS filed byDerrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 7/5/2007) Modified on 7/6/2007 (ys, COURT STAFF). (Entered: 07/05/2007)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 78 of 83

07/05/2007 07/05/2007 07/18/2007 08/02/2007 08/02/2007 08/02/2007

309 Declaration of GUY B. WALLACE IN SUPPORT OF 307 PLAINTIFFS' MOTION TO APPROVE SERVICE FEES filed byDerrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 7/5/2007) Modified on 7/6/2007 (ys, COURT STAFF). (Entered: 07/05/2007)
310 Proposed Order GRANTING MOTION FOR APPROVAL OF SERVICE PAYMENTS by Derrick Satchell, Kalini Boykin, Tyrone Merritt, Valerie Brown, Rick Gonzales, Cynthia Guerrero, Ken Stevenson, Daniel Sherman, Kevin Smith, Rachel Hutchins, Sophia Shainza Hanif, Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 7/5/2007) (Entered: 07/05/2007)
311 NOTICE by Waukeen Q. McCoy of Joinder in Application of Plaintiffs for Attorney Fees and Reinbursement of Costs and Expenses, and That the Law Offices of Waukeen McCoy No Longer Seeks a Separate Award of Attorney Fees and Costs (McCoy, Waukeen) (Filed on 7/18/2007) (Entered: 07/18/2007)
312 PLAINTIFFS' REPLY IN SUPPORT OF 298 CORRECTED APPLICATION OF PLAINTIFFS FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/2/2007) Modified on 8/3/2007 (ys, COURT STAFF). (Entered: 08/02/2007)
313 REPLY DECLARATION OF JAMES M. FINBERG IN SUPPORT OF 298 CORRECTED APPLICATION FOR ATTORNEYS' FEES AND FOR REIMBURSEMENT OF COSTS AND EXPENSES filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/2/2007) Modified on 8/3/2007 (ys, COURT STAFF). (Entered: 08/02/2007)
314 Proposed Order GRANTING 298 APPLICATION OF PLAINTIFFS FOR ATTORNEYS' FEES AND REIMBURSEMENT OF COSTS AND EXPENSES by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 79 of 83

08/02/2007 08/02/2007 08/02/2007 08/02/2007 08/02/2007

Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/2/2007) Modified on 8/3/2007 (ys, COURT STAFF). (Entered: 08/02/2007)
315 PLAINTIFFS' REPLY IN SUPPORT OF 307 MOTION FOR APPROVAL OF SERVICE PAYMENTS filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/2/2007) Modified on 8/3/2007 (ys, COURT STAFF). (Entered: 08/02/2007)
316 REPLY DECLARATION OF JAMES M. FINBERG IN SUPPORT OF 307 MOTION FOR APPROVAL OF SERVICE PAYMENTS filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/2/2007) Modified on 8/3/2007 (ys, COURT STAFF). (Entered: 08/02/2007)
317 REVISED [PROPOSED] ORDER 307 GRANTING MOTION FOR APPROVAL OF SERVICE PAYMENTS by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/2/2007) Modified on 8/3/2007 (ys, COURT STAFF). (Entered: 08/02/2007)
318 Proposed Order REVISED [PROPOSED] FINAL JUDGMENT by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/2/2007) (Entered: 08/02/2007)
319 PLAINTIFFS' REPLY IN SUPPORT OF 301 MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND FOR FINAL CERTIFICATION OF SETTLEMENT CLASSES filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/2/2007) Modified on 8/3/2007 (ys, COURT STAFF). (Entered: 08/02/2007)

Case: 3:03-cv-2878 As of: 05/31/2019 01:42 PM PDT 80 of 83

08/02/2007
08/02/2007
08/02/2007
08/15/2007 08/15/2007 10/10/2007
10/12/2007 10/17/2007 11/02/2007 11/27/2007

320 Declaration of LOREE KOVACH filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/2/2007) (Entered: 08/02/2007)
321 SECOND DECLARATION OF MARK PATTON filed byDesmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Attachments: # 1 Exhibit)(Finberg, James) (Filed on 8/2/2007) Modified on 8/3/2007 (ys, COURT STAFF). (Entered: 08/02/2007)
322 Proposed Order REVISED [PROPOSED] ORDER (1) CONFIRMING FINAL CERTIFICATION OF CLASSES AND (2) GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND CONSENT DECREE by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 8/2/2007) (Entered: 08/02/2007)
323 Final JUDGMENT: Dismissed with prejudice, in accrodance with the terms of the Consent Decree. Signed by Judge Illston on 8/14/07. (ts, COURT STAFF) (Filed on 8/15/2007) (Entered: 08/15/2007)
324 ORDER /consent decree. Signed by Judge Illston on 8/15/07. (Attachments: # 1)(ts, COURT STAFF) (Filed on 8/15/2007) (Entered: 08/15/2007)
325 STIPULATION AND [PROPOSED] ORDER RE UNTIMELY CLAIMS by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Fedex Express, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 10/10/2007) (Entered: 10/10/2007)
326 ORDER re: untimely claims. Signed by Judge Illston on 10/11/07. (ts, COURT STAFF) (Filed on 10/12/2007) (Entered: 10/12/2007)
327 ORDER directing defendnt to pay lien in the amount of $71,008.47 to the Alioto Firm. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 10/17/2007) (Entered: 10/17/2007)
328 NOTICE of Change In Counsel by Kelly M. Dermody (Dermody, Kelly) (Filed on 11/2/2007) (Entered: 11/02/2007)
329 sealing order. Signed by Judge Illston on 1//26/07. (ts, COURT STAFF) (Filed on 11/27/2007) (Entered: 11/27/2007)

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01/04/2008
01/08/2008 01/15/2008 01/24/2008 03/31/2008
04/01/2008 04/02/2008 04/07/2008
05/23/2008
05/27/2008 07/09/2008

330 STATUS REPORT CLAIMS ADMINISTRATOR'S INERIM REPORT by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 1/4/2008) (Entered: 01/04/2008)
331 ORDER granting motion to seal. Signed by Judge Illston on 1/8/08. (ts, COURT STAFF) (Filed on 1/8/2008) (Entered: 01/08/2008)
332 ORDER. Signed by Judge Illston on 1/15/08. (ts, COURT STAFF) (Filed on 1/15/2008) (Entered: 01/15/2008)
333 ORDER. Signed by Judge Illston on 1/22/08. (ts, COURT STAFF) (Filed on 1/24/2008) (Entered: 01/24/2008)
334 STIPULATION AND [PROPOSED] ORDER RE PAYMENTS TO CLASS MEMBERS WHO WERE NOT INCLUDED ON THE INITIAL CLASS LIST OR WHOSE CLAIM FORMS WERE NOT TIMELY RECEIVED DUE TO NO FAULT OF THEIRS by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 3/31/2008) (Entered: 03/31/2008)
335 ORDER re: payments to class. 334 Signed by Judge Illston on 3/31/08. (ts, COURT STAFF) (Filed on 4/1/2008) (Entered: 04/01/2008)
336 ORDER granting plaintiff's Motion for declaratory relief. FILED UNDER SEAL. Signed by Judge Susan Illston on 4/2/08. (ys, COURT STAFF) (Filed on 4/2/2008) (Entered: 04/07/2008)
337 CERTIFICATE OF SERVICE re 336 by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis (Cervantez, Eve) (Filed on 4/7/2008) Modified on 4/9/2008 (ys, COURT STAFF). (Entered: 04/07/2008)
338 STIPULATION AND [PROPOSED] ORDER RE PAYMENTS TO CLASS MEMBERS by Desmond Carter, Kevyn Cameron, Alvin Buckman, Willie Bryant III, Charles Anderson, Derrick Satchell, Janice Lewis, Marial Lawson, Cynthia Guerrero, Rachel Hutchins, Mariel Lawson Janice Lewis, Rick Gonzales, Patricia Caldwell, Ken Stevenson, Kimelia Wooten, Xsiomara Willis, Darnell Williams, Shelia Tyler, Shirley K. Steward, Kelvin Smith Sr., Mari Shaffer, Darryl Payton, Peter Paris, Ernestine Owens, Rosa N. Olmos, Mike O. Odigie, Lavaedra Newton, Yvonne Murray, John Conwell, Rodney Morton, Shirley McCray, Emory McClendon, Cynthia Jackson, David Hernandez, Janet Haynes, Bradford Hall, Glenda Gray, Lawrence Estrada, Melanie Dennis. (Finberg, James) (Filed on 5/23/2008) (Entered: 05/23/2008)
339 ORDER re: payments to class members re 338 . Signed by Judge Illston on 5/27/08. (ts, COURT STAFF) (Filed on 5/27/2008) (Entered: 05/27/2008)
340 ORDER re: motion for counterclaim and interpleader relief. Signed by Judge Susan Illston. (ts, COURT STAFF) (Filed on 7/9/2008) (Entered: 07/09/2008)

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07/16/2008 11/13/2008
11/13/2008 11/25/2008 12/29/2008 03/12/2009 04/07/2009 07/21/2009 07/27/2009 09/14/2009 01/13/2010 01/25/2010
01/25/2010
01/28/2010 02/03/2010 06/22/2010 07/06/2010 07/20/2010 07/20/2010

341 ORDER dismissing individual claims. Signed by Judge Illston on 7/14/08. (ts, COURT STAFF) (Filed on 7/16/2008) (Entered: 07/16/2008)
342 *** FILED IN ERROR. PLEASE SEE DOCKET # 343 . *** Proposed Order Stipulation and [Proposed] Order Permitting Limited Disclosure of Time Records by Edward Swanson. (Swanson, Edward) (Filed on 11/13/2008) Modified on 11/14/2008 (ewn, COURT STAFF). (Entered: 11/13/2008)
343 Special Masters Order Stipulated Order Permitting Limited Disclosure of Time Records, CORRECTION OF DOCKET # 342 .. (Swanson, Edward) (Filed on 11/13/2008) (Entered: 11/13/2008)
344 CLERKS NOTICE submitting motion for attorney fees without argument (ts, COURT STAFF) (Filed on 11/25/2008) (Entered: 11/25/2008)
345 ORDER GRANTING MOTION FOR PLAINTIFFS' COUNSEL'S REASONABLE ATTORNEYS' FEES REGARDING MOTION FOR DECLARATORY RELIEF (SI, COURT STAFF) (Filed on 12/29/2008) (Entered: 12/29/2008)
346 ORDER of USCA : Answering Brief and excerpt of record shall be filed and maintained under seal. (ys, COURT STAFF) (Filed on 3/12/2009) (Entered: 03/13/2009)
347 A Copy of USCA ORDER: Briefing Schedule. (ys, COURT STAFF) (Filed on 4/7/2009) (Entered: 04/08/2009)
348 *OBJECTIONS to 899 Stipulation and Order permitting Late Claim of Janel Buycks to be paid from Monitoring Fund. (ys, COURT STAFF) (Filed on 7/21/2009) (Entered: 07/22/2009)
349 *Reply Brief re Stipulation filed byJanel Buycks. (Attachments: # 1 Exhibit)(ys, COURT STAFF) (Filed on 7/27/2009) (Entered: 07/28/2009)
350 Surreply Brief re Stipulation filed byJanel Buycks. (ys, COURT STAFF) (Filed on 9/14/2009) (Entered: 09/15/2009)
351 ORDER DENYING MR. McCOY'S MOTION FOR RECONSIDERATION (SI, COURT STAFF) (Filed on 1/13/2010) (Entered: 01/13/2010)
352 NOTICE OF APPEAL 10−15197 as to (345 in 3:03−cv−02878−SI, 890 in 3:03−cv−02659) Order on Motion for Attorney Fees by Waqukeen Q. McCoy, Esq.. Filing fee $ 455, receipt #34611041520. (ys, COURT STAFF) (Filed on 1/25/2010) (Entered: 01/26/2010)
353 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re (352 in 3:03−cv−02878−SI, 907 in 3:03−cv−02659) Notice of Appeal. (Attachments: # 1 appeal notification form)(ys, COURT STAFF) (Filed on 1/25/2010) (Entered: 01/26/2010)
354 Transcript Designation and Ordering Form before Judge Susan Illston (No intention to designate any portion of the transcript) (ys, COURT STAFF) (Filed on 1/28/2010) (Entered: 01/29/2010)
355 USCA Case Number 10−15197 USCA for (352 in 3:03−cv−02878−SI, 907 in 3:03−cv−02659) Notice of Appeal. (ys, COURT STAFF) (Filed on 2/3/2010) (Entered: 02/03/2010)
356 USCA Memorandum : Affirmed.(ys, COURT STAFF) (Filed on 6/22/2010) (Entered: 06/22/2010)
357 ORDER of USCA (08−15904): The motion to stay the mandate of this court is DENIED. (ys, COURT STAFF) (Filed on 7/6/2010) (Entered: 07/06/2010)
358 MANDATE of USCA (08−15904) as to Notice of Appeal.(ys, COURT STAFF) (Filed on 7/20/2010) (Entered: 07/20/2010)
359 CLERKS Letter Spreading Mandate (08−15904) to Counsel re Notice of Appeal. (ys, COURT STAFF) (Filed on 7/20/2010) (Entered: 07/20/2010)

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08/20/2010 09/20/2010 07/07/2011 08/11/2011 09/07/2011 09/15/2011 10/05/2011 10/17/2011
10/20/2011
11/02/2011 11/17/2011 02/22/2012

360 CLERKS NOTICE Continuing Motion Hearing Motion Hearing set for 10/5/2010 09:00 AM. (tf, COURT STAFF) (Filed on 8/20/2010) (Entered: 08/20/2010)
361 CLERKS NOTICE Continuing Motion Hearing Motion Hearing set for 10/7/2010 09:00 AM. (tf, COURT STAFF) (Filed on 9/20/2010) (Entered: 09/20/2010)
362 USCA Memorandum as to 352 Notice of Appeal. The decision of the District Court is Affirmed. (mjj2S, COURT STAFF) (Filed on 7/7/2011) (Entered: 07/07/2011)
363 ORDER of USCA as to (352 in 3:03−cv−02878−SI, 907 in 3:03−cv−02659) Notice of Appeal : regarding filing of an oversized petition for panel rehearing and petition for rehearing en banc. (ysS, COURT STAFF) (Filed on 8/11/2011) (Entered: 08/22/2011)
364 ORDER of USCA as to 352 Notice of Appeal: The petition for rehearing and the petition for rehearing en banc, filed August 12, 2011, are DENIED. (ysS, COURT STAFF) (Filed on 9/7/2011) (Entered: 09/19/2011)
365 MANDATE of USCA as to (352 in 3:03−cv−02878−SI, 907 in 3:03−cv−02659−SI) Notice of Appeal. Affirmed. Costs are awarded to the appellee in the amount of $32.00. (ysS, COURT STAFF) (Filed on 9/15/2011) (Entered: 10/05/2011)
366 CLERKS Letter Spreading Mandate to Counsel re 907 Notice of Appeal (03−cv−2878, 352 Notice of Appeal) (ysS, COURT STAFF) (Filed on 10/5/2011) (Entered: 10/05/2011)
367 ORDER of USCA as to (352 in 3:03−cv−02878−SI) Notice of Appeal, (847 in 3:03−cv−02659−SI) Amended Notice of Appeal: Stipulation to extend the time for Appellant McCoy to file an opposition to Appellee Wallace's application for attorney's fees and cost is APPROVED. Opposition due 10/17/11, reply brief is due 10/31/11.(ysS, COURT STAFF) (Filed on 10/17/2011) (Entered: 10/20/2011)
368 ORDER of USCA as to (352 in 3:03−cv−02878−SI) Notice of Appeal, (847 in 3:03−cv−02659−SI) Amended Notice of Appeal: Stipulation to extend the time for Appellant McCoy to file an opposition to Appellee Wallace's application for attorney's fees and costs is APPROVED. Opposition due 10/21/11, reply brief due 11/4/11. (ysS, COURT STAFF) (Filed on 10/20/2011) (Entered: 10/20/2011)
369 ORDER of USCA as to (352 in 3:03−cv−02878−SI, 907 in 3:03−cv−02659−SI) Notice of Appeal : The reply brief is due 11/9/11. (ys, COURT STAFF) (Filed on 11/2/2011) (Entered: 11/15/2011)
370 ORDER of USCA as to (352 in 3:03−cv−02878−SI, 907 in 3:03−cv−02659−SI) Notice of Appeal re attorney's fees on appeal. (ysS, COURT STAFF) (Filed on 11/17/2011) (Entered: 12/19/2011)
371 ORDER of USCA as to (352 in 3:03−cv−02878−SI, 907 in 3:03−cv−02659−SI) Notice of Appeal : Graning motion for withdrawal of motion for attorneys' fees. (ysS, COURT STAFF) (Filed on 2/22/2012) (Entered: 02/23/2012)

 
 1 TRACY L. HOLTZ: Bar No. 176928
OPERATING ENGINEERS LOCAL UNION NO.3 TRUSTFUNDS- MULTI-REPAIRS 2 1620 South Loop Road
Alameda, CA 94502 3 (510) 748-7474

4 Attorney for Plaintiffs

5

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA
6

(SAN FRANCISCO HEADQUARTERS)

q c~l~ 7
8 KEN WALTERS, DON DOSER, in their

'-' ":'!}. , ,.r,'." ,:.
~' ..

respective capacities as Trustees of the

','",r ("''') tfj

, < <,

l

9 10

OPERATING ENGINEERS HEALTH AND )

WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; PENSION

) ) )

COMPLAINT FOR DECLARATORY RELIEF, BREACH OF CONTRACT, DAMAGES AND EOUITABLE RELIEF

TRUST FUND FOR OPERATING

)

11 ENGINEERS;' PENSIONED OPERATING )

ENGINEERS HEALTH AND WELFARE )

12 FUND; OPERATING ENGINEERS

)

ANNUITY TRUST FUND; OPERATING )

13 ENGINEERS AND PARTICIAPTING

) )

14 EMPLOYERS PRE-APPRENTICSHIP,

)

APPRENTICE AND JOURNEYMEN

)

15 AFFIRMATIVE ACTION TRAINING

)

FUND; OPERATING ENGINEERS

)

16 CONTRACT ADMINISTRATION TRUST )

j FUND; OPERATING ENGINEERS

)

17 MARKET PRESERVATION TRUST FUND;

and OPERATING ENGINEERS INDUSTRY)

18 STABILIZATION TRUST FUND,

)

)

19

Plaintiffs,

)

20

vs.

) )

21

SCHULHAUSER ENGINEERING, INC., a

) )

suspended California Corporation; and

)

22 STEVEN PAUL SCHULHAUSER,

)

individually,

)

23

)

Defendants.

)

24

)

25 / II II

M'"''

COMPLAINT FOR DECLARATORY RELIEF, BREACH OF CONTRACT, DAMAGES AND EQUITABLE RELIEF;
-1

1

Plaintiffs complain of the Defendants and for causes of action allege against each of

2 them:

3

JURISDICTION UNDER ERISA AND LMRA

4

I.

S
This action arises under, and is brought pursuant to, Section 502 of the Employee
6
Retirement Income Security Act, as amended (ERISA), 29 U.S.c. Section 1l32, which grants
7
district courts exclusive jurisdiction to hear civil actions brought by a fiduciary. See 29 U.S.C.
8
Section 1132(e)(l). Further, Section 502(a)(3) of ERISA provides that a fiduciary has standing
9
to enforce any ERISA provisions. Plaintiffs Ken Walters and Don Doser, Trustees and Co-
10
11 Chairmen oftbe Operating Engineers Health and Welfare Trust Funds for Northern California;

12 Pension Trust Fund for Operating Engineers; Pensioned Operating Engineers Health and Welfare

13 Fund; and Operating Engineers Vacation and Holiday Plan ("Trust Funds"), have the authority to

14 bring actions on behalf of all Trustees. The above-named Trustees, in their respective capacities

lS as Trustees of the aforesaid Trust Funds and on behalf of all the Trustees, have standing to bring

16 this action and to enforce any ERISA provisions, as they are fiduciaries. Therefore, this Court
17
has jurisdiction under ERISA over this action.
18
II.
19
This action also arises under and is brought pursuant to Section 301 of the Labor
20
Management Relations Act (LMRA), 29 U.S.c. Section 185, which extends to all "[s]uits for
21
violation of contracts between an employer and a labor organization representing employees in
22
an industry affecting commerce ...." Plaintiffs are seeking to enforce Defendant's obligation to
23
24 contribute fringe benefits to the Trust Funds under the collective bargaining agreement between
2S Defendant SCHULHAUSER ENGINEERING, INC. and Operating Engineers Local Union No.

3 of the International Union of Operating Engineers, AFL-CIO, and the Trust Agreements
COMPLAINT FOR DECLARATORY RELIEF, BREACH OF CONTRACT, DAMAGES AND EQUITABLE RELIEF;
-2

1 incorporated into thm collective bargaining agreement by reference therein. Therefore, this

2 Court has jurisdiction under LMRA over this action.

3

INTRADISTRICT ASSIGNMENT

4
III.
S
Assignment to either the San Francisco or Oakland Divisions would be proper under
6
Civil L.R. 3.2(15) because: any contributions found due will be payable in San Francisco,
7
California; the principal office of the Plaintiffs is in Alameda County; and a substantial part of
8
the events or omissions respecting the requirement of the Defendant to submit timely
9
10 contributions and reports occurred in San Francisco and Alameda counties.

11

PARTIES

12

IV.

13

At all times material herein, Plaintiffs Ken Walters and Don Doser have been, and

14 currently are, Trustees and Co-Chairman and Chairman, respectively, of the Trust Funds with the

lS authority to bring actions on behalf of all Trustees. These individuals are named fiduciaries of
16
the Trust Funds, within the meaning of Section 402(a) of ERISA, 29 U.S.C. Section 1I02(a) and
17
are the administrators of the Trust Funds and their respective plans. Any reference to "Board of
18
Trustees" hereinafter refers to all of the Trustees for the Trust Funds. At all time material herein,
19
the Trust Funds are established under, and pursuant to, Section 402 of ERISA, 29 U.S.C. Section
20
1103, and Section 302 of LMRA, 29 U.S.C. Section 186. At all times material herein, the Trust
21
Funds, were and now are employee benefit plans created by written trust agreement and
22
23 collective bargaining, and multi-employer benefit plans within the meaning of Sections 3 and 4

24 of ERISA, 29 U.S.C. Sections 1002 and 1003. Contributions to the Trust Fund are due and

2S payable in San Francisco, California.

COMPLAINT FOR DECLARATORY RELIEF, BREACH OF CONTRACT, DAMAGES AND EQUITABLE RELIEF;
-3

1

V.

2

At all material times herein, the Defendants, and each of them, have been employers

3 within the meaning of Section 3(5) of Section 515 of ERISA 29 U.S.c. Sections 1002(5), 1145
4
and an employer in an industry affecting commerce within the meaning of Section 301 of the
5
L.M.R.A., 29 U.S.c. Section 185. At all times material herein, the Defendants have been and are
6
engaged in the equipment repair industry in the State of California. Defendant SCHULHAUSE
7
ENGINEERING, INC. ("SCHULHAUSER, INC.") is a suspended California Corporation.
8
Defendant STEVEN PAUL SCHULHAUSER ("STEVEN SCHULHAUSER") is an individual
9
10 who resides and/or contracts business in California.

11

FIRST CLAIM FOR RELIEF

12

~CTUALDAMAGES-EruS~

13

VI.

14

The Boards of Trustees have, as one of their purposes, the obligation to ensure that

15 contributions required to be made to said Trust Funds pursuant to collective bargaining

16
agreements are fully and correctly made. The purpose of the respective Trust Funds is to provide

17
health and welfare, vacation, pension and other benefits for operating engineers on whose behalf
18
contributions are made, which benefits are supported by such contributions, and to ensure that
19
employers who are signatories to the collective bargaining agreements referred to herein comply
20
with the terms of said agreements with respect to payments of said contributions to the Funds.
21

22

VII.

23

At all relevant times herein, SCHULHAUSER, INC., has been bound to a written

24 collective bargaining agreement with the Operating Engineers Local Union No.3 of the

25 International Union of Operating Engineers, AFL-CIO, a labor organization within the meaning

ofLMRA Section 301 29 U.S.C. Section 185 ("Collective Bargaining Agreement"). A copy of

COMPLAINT FOR DECLARATORY RELIEF, BREACH OF CONTRACT, DAMAGES AND EQUITABLE RELIEF;
-4

1 the Collective Bargaining Agreement is attached hereto as Exhibit "A". STEVEN

2 SCHULHAUSER, is the alter ego of SCHULHAUSER. INC. as the term is understood under '-'
3 applicable law. STEVEN SCHULHAUSER and SCHULHAUSER, INC. are a single employer.

4 STEVEN SCHULHAUSER continued to conduct business individually and using the name

5 SCHULHAUSER. INC. after the corporate powers of SCHULHAUSER, INC. were suspended

6 pursuant to California Revenue and Tax Code Section 23301.

7

VIII.

8

STEVEN SCHULHAUSER is the successor of SCHULHAUSER, INC., as that term is

9 understood under federal labor law. STEVEN SCHULHAUSER is a mere continuation of

10 SCHULHAUSER, INC. STEVEN SCHULHAUSER had notice of SCHULHAUSER, INC. 'S

11 liability for fringe benefit contributions and its collective bargaining agreement with Operating

12 Engineers Local Union No.3 when he took over the operations of SCHULHAUSER, INC.,

13 when its corporate powers were suspended.

14

IX.

15

By agreeing to be bound to the Collective Bargaining Agreement, SCHULHAUSER,

16 INC. and its alter ego/successor STEVEN SCHULHAUSER, promised to contribute and pay the

17 Trust Funds the hourly amounts required by said Agreements for each hour paid for or worked

18 by any of its employees who performed any work covered by the Collective Bargaining

19 Agreement, and to be subject to and bound by all of the terms, provisions and conditions of the

20 Trust Agreements.

21

X.

22

The Defendants, and each of them, have failed, neglected and refused to pay timely fringe

23 benefit contributions in the amount of $22,221.65 and liquidated damages and interest in the

24 amount of $150,81 0.15 as required by the Master Agreement and Trust Agreements.

25

COMPLAINT FOR DECLARATORY RELIEF, BREACH OF CONTRACT, DAMAGES AND EQUITABLE RELIEF;
-5

1

xv.

2

Pursuant to the terms of the Trust Agreements, incorporated by reference into the

3 Collective Bargaining Agreement, Plaintiffs are entitled to payment of delinquent contributions

4 in the amount of $22,221.65 and liquidated damages and interest in the amount of $150,81 0.15

5 from the Defendants based on covered work performed by the Defendant's employees. Plaintiffs

6 are also entitled to prejudgment interest.

7

THIIRD CLAIM FOR RELIEF

8

(DAMGAGES AND EQUITABLE RELIEF FOR

9

BREACH OF FIDUCIARY DUTY - ERISA)

10

XVI.

11

Plaintiffs incorporate by this reference each and every allegation contained in Paragraph I

12 through XII.

13

Defendants, in agreeing to the terms and conditions of the aforementioned Trust

14 Agreements, assumed a fiduciary duty to the Trust Funds, which required the Defendants to

15 submit timely and accurate reports of hours worked or amounts due, together with payments to

16 the Trust Funds. The Defendants exercised control over any contributions due, which are assets

17 of the Trust Funds, and the Defendants were, and are, fiduciaries as defined by ERISA Section

18 3(21),29 U.S.c. Section 1002(21).

19

XVII.

20

The actions of the Defendants complained of herein constitute a violation of fiduciary

21 duties defined by ERISA, 29 u.s.c. Sections 1001 et seq.

22

XVIII.

23

Pursuant to the Collective Bargaining Agreement, Trust Agreements, and ERISA, the

24 Defendants are liable to Plaintiffs for all interest on the unpaid contributions, liquidated

25 damages, actual damages, attorney's fees and other collection costs.

COMPLAINT FOR DECLARATORY RELIEF, BREACH OF CONTRACT, DAMAGES AND EQUITABLE RELIEF;
-7

1

XI.

2

Plaintiffs are not parties to the collective bargaining agreement and are not entitled to

3 arbitration for the reason that the collective bargaining agreement excludes these provisions from

4 the provisions from the arbitration clause.

5

XII.

6

In light of the fact that STEVEN SCHULHAUSER is conducting the same business as

7 SCHULHAUSER, INC. and reporting contributions pursuant to the terms of the Collective

8 Bargaining Agreement, notwithstanding SCHULHAUSER, INC. is a suspended corporation,

9 Plaintiffs are entitled to a judicial determination and declaration that STEVEN SCHULHAUSER

10 is the alter ego and/or successor of SCHULHAUSER, INC., and thereby bound to the collective

11 bargaining agreement with Operating Engineers Local Union No.3 executed by

12 SCHULHAUSER, INC. in order to resolve the controversy with respect to STEVEN

13 SCHULHAUSER'S liability for the aforementioned unpaid contributions owed to the Trust 14 Funds.

15

XIII.

16

Pursuant to Section 502(g)(2) of ERISA, 29 U.S.c. Section 1132(g)(2), Plaintiffs are

17 entitled to all unpaid contributions in the amount of $22,221.65, interest, liquidated damages in

18 the amount of $150,81 0.15 and such other legal or equitable relief as the court deems

19 appropriate. Plaintiffs are also entitled to attorney's fees and costs under Section 502(g)(1) of

20 ERISA, 29 U.S.C. Section (g)(1), and prejudgment interest.

21

SECOND CLAIM FOR RELIEF

22

(ACTUAL DAMAGES - LMRA)

23

XIV.

24

Plaintiffs reallege and incorporate by reference each and every allegation contained in

25 Paragraphs I through XII.

COMPLAINT FOR DECLARATORY RELIEF, BREACH OF CONTRACT, DAMAGES AND EQUITABLE RELIEF;
-6

1

WHEREFORE, Plaintiffs pray for judgment against the Defendants, and each of them,

2 as follows:

3

1.

STEVEN SCHULHAUSER is the alter ego of SCHULHAUSER, INC. as that

4 term is understood under federal law, and thereby bound to the collective bargaining agreement

5 with Operating Engineers Local Union No.3 executed by Defendant SCHULHAUSER, INC.;

6

2.

STEVEN SCHULHAUSER is the successor of SCHULHAUSER, INC., as that

7 term is understood under federal law, and thereby bound to the collective bargaining agreement

8 with Operating Engineers Local Union No.3 executed by Defendant SCHULHAUSER, INC.;

9

3.

That Defendants, and each of them, be ordered to pay to Plaintiffs the sum of

10 $22,221.65 in unpaid contributions and liquidated damages and interest in the amount of

11 $150,810.15 owed the Trust Funds;

12

4. That Defendants, and each of them, be ordered to pay to Plaintiffs actual damages

13 according to proo f;

14

5. For an Order directing and permanently enjoining the Defendants, and each of

15 them, to submit to Plaintiff Trust Funds, all reports and contributions due and owing by

16 Defendants, and each of them, plus interest, liquidated damages, attorneys' fees, and costs as

17 provided in ERISA §§502(a)(3) and (g)(2), 29 U.S.c. §1132(a)(3), (g)(2);

18

6. For an Order permanently enjoining the Defendants, and each of them, for so long

as the Defendants, and each of them, remain obligated to contribute to the Trust Funds, from
19
failing, neglecting, or refusing to submit required monthly contributions reports and payments in
20
a timely fashion as required by the terms of the Collective Bargaining and Trust Agreements and
21
ERISA §§502(a)(3) and (g)(2), 29 U.S.c. §ll32(a)(3), (g)(2);
22
7. For prejudgment interest and post judgment interest at the highest legal rate;
23
8. For attorneys' fees, court costs, and other reasonable expenses incurred in
24
connection with this action; and
25
II II /

COMPLAINT FOR DECLARATORY RELIEF, BREACH OF CONTRACT, DAMAGES AND EQUITABLE RELIEF;
-8

1

9. For such other and further relief as this Court deems just and proper.

L 2

, . ""VI. .

Dated this

day of June, 2003

3

4

5

6

OPERATING ENGINEERS LOCAJ_ UNION NO. 3/~RUST FUN~S -~ULT?9PAIRS

By :/", ' , v v - ) '\.-. 'I ~ G/: ~7 )

TRACY L. HOLTZ

~'y

ATTORNEY FOR PLAINTIFFS

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

COMPLAINT FOR DECLARATORY RELIEF, BREACH OF CONTRACT, DAMAGES AND EQUITABLE RELIEF;
-9

" ....::~ -" - ~

.

~

. (\ \<j~a'1

INDEPENDENT

Account No.

Sc~? ~ \J "'~~ Northern California Construction Agreement

~

:or\--<,.

~~'\-

1..
.'

J

'~ '"-'

495596 , .
Contractor s License No.

r

~ \'...\ '\ •.

~

•

••• •

Operating,Engineers Local Umon No.3 proposes the followmg collective bargammg agreement to:

SCHULHAUSER ENGINEERING INC.

Individual Employer (Company Name)

935 Bradford Way,

Benicia

CA.

Address

City

State

94510 Zip

(.707) 746-1576
Telephone Number

SECfION NO.1 - DEFINITIONS. COVERAGE, RECOGNmON

1. Union. The term "Union" as used, herein shall mean OPERATING

ENGINEERS LOCAL UNION NO.3 of the International Union of Operating

En~rs, AFL·CIO.

2. Employee. The term "Employee" as used herein shall mean any person,

without regard to race, color, religion, sex, age. national origin or handicap;

(a) whose work for an Individual Employer in the area covered by this Agreement

falls within the recognized jurisdiction of the Union, or

(b) who operates, monitors and controls, maintains, repairs, modifies, assembles,

erects, services or each or all of them, power-operated equipment, of the type or

kind of power-operated equipment used in the performance of work referred to in

(a) above, regardless of whether such power-operated equipment is mechanically,

electrically or electronically, hydraulically, automatically or remotely controlled,

and

(c) who assists or helps in the operation, maintenance, repairing or assembling,

erecting or servicing ofsuch power-operated equipment ofthe type or kind ofequip-

ment used in the performance ofwork referred to in (a) above, and who qualifies to

register in a Job Placement Center, provided that the foregoing shall not apply to

superintendents, assistant superintendents, general foremen, foremen, timekeep-

ers, messenger boys, guards, confidential employees, office help, inspectors, and

person specifically excluded elsewhere in this Agreement.

3. This Agreement shall cover and apply to all activities ofthe Individual Employ·

er in the area covered by this Agreement falling within the recognized jurisdiction

of the Union, including, but not limited by inference or otherwise, to building con-

struction, demolition, site clearing, pipelines, oil or gas refineries (excluding the

falling and removal ofmerchantable timber by the purchaser ofthe merchantable

timber), work covered by Section 13.00.00, Steel Fabricators and Erectors, which

work and equipment shall be covered by Section 13.00.00, 'Steel' Fabricators and

Erectors, and work covered by Section 14.00.00, Piledriving, which work and equip-

ment shall be covered by Section 14.00.00, Piledriving. It shall also apply to all

maintenance, modification and repair work and facilities, on·site or off·site, ofan

Individual Employer in the area covered by this Agreement, except an off·site re-

pair or maintenance facility with respect to which the Individual Employer is in a

bona fide collective bargaining relationship with a labor organization covering

such Individual Employer's off·site maintenance and repair facility at the time the

Individual Employer becomes a party to, or covered by, this Agreement.

4. This Agreement shall cover and apply to all Employees.

5. Coverage. This Agreement shall cover and apply to Northern California,

which term means that portion of the State ot' California above the northerly

boundary of Kern County, the northerly boundary of San Luis Obispo County,

and the westerly boundaries of Inyo and Mono Counties.

6. Because employees in the construction industry frequently work for many

different Individual Employers in the course of any given twelve-month·period,

and because of the broad community of interest which this cross·flow of

employees creates, particularly through the operation of the Job Placement

Regulations, the Union, Employer and all Inciividual Employers bound by terms

and provisions ofthis Agreement recognize that ail Employees who perform work

historically, or which may hereafter come, wi':-.in the jurisdiction of the Union

are members of a single industry-wide multi",mplOyer unit of Employees,

7. In the event the Individual Employer fOnTIS rrr participates in a corporation,

association, partnership, joint venture or firm for the ~ur;Jose of performing work

covered by this Agreement and which is controilpd ci;reetlv or indirectly by the

Individual Employer, the Individual Employer ,n",d ,1Ot:iy the Union in writing

the day following the formation or participation ·;f t:,e name and address of such

entity. Any Individual Employer who fails to 6":" sue'l "Oliiication will pay into

the Operating Engineers' Pension Trust Fund an amount not to exceed the wages,

straight time and overtime, and fringe benefits that would have been paid by the

Individual Employer if the work was performed by him, plus twenty·five percent

(25%) of the total amount not as a penalty but bv ',y"'" .,f';,luidated damages.

8. The parties hereby waive any right that they r:o 1"

, c,'pudiatethis Agree-

ment during the term of the Agreement or dunng the Le, TIl 01 J.ny extension, modi·

fication or amendment to this Agreement.

9. The Individual Employer covered hereby recu:;."zes ,md acknowledges

OPERATING ENGINEERS LOCAL UNION NO. 3 oft~.t' i :1temational Union 0

Operating EngineeIll, AFL-CIO, as the exclusive collective bargaining representative of all Employees covered by this Agreement. 10. In the event of a sale andlor transfer of the Individual Employer's business to another owner, the Individual Employer agrees to pay all fringe benefit contribu· tions due and owing, if any, prior to such sale, or make arrangements, in writing, with the Trust Fund prior to such sale to make payment from the proceeds ofsaid
sale. 11. In the event of bankruptcy, the Individual Employer agrees that with respect to any fringe benefit payments owed the Trust Funds, a promissory note shall be executed by the Individual Employer with the Trust Funds providing for full payment of said fringe benefits notwithstanding the Individual Employer's bankruptcy.

SEcrION NO.2 - MASTER AGREEMENTS INCORPORATED

All ofthe provisions ofthe current Master Agreement between the Union and the Associated General Contractors of California, Inc., including the Job Placement Regulations and any amendment or amendments thereto excluding 02.08.04, 07.10.04(7), 12.09.00, 12.09.01, 12.09.02, 18.03.04, 26.01.00 and 26.03.00, which are specifically excluded from this Agreement, are incorporated herein as if set forth in full herein. Provided, however, that with respect to 19.00.00 of said Master Agreement, any decision under 19.00.00 involving the meaning ofthe Agreement resulting in the amendment of that Agreement, shall control, and shan be given full effect under this Agreement.

SEcrION NO.3 - DISPUTES

Settlement of any disputes under this Agreement shall be in accordance with Sec· tion 18.00.00 of the current Master Agreement referred to in Section No.2 above; provided, however, the Individual Employer may utilize a Board of Adjustment Panel selected by the Employer, or arrange for his own Panel.

SECfION NO.4 - INFORMATION

For the information and convenience of the parties, the substance of certain provisions of the Master Agreement incorporated by reference are reproduced as an Appendix which is attached hereto.

SEcrION NO.5 - EFFECfIVE AND TERMINATION DATES

This Agreement shall, if a renewal Agreement, be retroactive to the effective date of the current Master Agreement, and if not a renewal Agreement, shall be effective the day fonowing the signing of this Agreement. The Individual Employer agrees to be bound to the wages, hours and all other terms and conditions offuture Master Agreements and any amendment(s} thereto; provided, however, that in the event either party desires to terminate this Agreement, they may do 80 during the period of sixty (60) to ninety (90) days prior to the expiration of any Master Agreement.

Receipt of copies of the current Master Agreement and amendments to date, and of the other agreements incorporated by reference therein, is hereby acknowledged by the Individual Employer by acceptance of this Agreement.

OPERATING ENGINEERS LOCAL UNION NO.3 of the International Union of Operating Engineers, AFL-CIO

/s/ Harold Huston, President

/s/ William Markus. Recording-Corresponding Secretary

/s/ T.J. Stapleton, Business Manager / /

/').

/s/ Business Representative: "f...!-ci't='/L... L!~

3 Agent No. 973

--:-_",,-Se'-"p"""tlQe;.um.J.J.b[.l;e;Lr_ _ _ _, 19.86-.

6/9/86·1f opeiu·3·afl-cio (3)

 
 Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 1 of 48

1 James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452)
2 Lexi J. Hazam (SBN 224457) LIEFF, CABRASER, HEIMANN &
3 BERNSTEIN, LLP 275 Battery Street, 30th Floor
4 San Francisco, CA 94111-3339 Telephone: (415) 956-1000
5 Facsimile: (415) 956-1008

6 Todd M. Schneider (SBN 158253) Guy B. Wallace (SBN 176151)
7 Sheryl I. Harris (SBN 211494) SCHNEIDER & WALLACE
8 1700 California Street, Suite 340 San Francisco, CA 94109
9 Telephone: (415) 440-3440 Facsimile: (415) 440-3640
10
11 Waukeen Q. McCoy (SBN 168228)
12 Kelly Armstrong (SBN 213036) 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 Attorneys for Plaintiffs and the Proposed Classes
16

John Burris (SBN 69888) Miles Washington (SBN 88288) LAW OFFICES OF JOHN 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) 282-4315
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, DANIEL

22

SHERMAN, KELVIN SMITH, SR., and KEN STEVENSON, on behalf of

23 themselves and all others similarly situated,

24

Plaintiffs,

25 v.

Case No. C 03-2659 SI; C 03-2878 SI
CLASS ACTION
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

26

FEDEX EXPRESS, a Delaware corporation,

JURY TRIAL DEMANDED

27

Defendant.

28

285717.1

CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 2 of 48

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”), Daniel Sherman (“Sherman”) Kelvin Smith, Sr.

5 (“Smith”), and Ken Steve nson (“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 hourly Handlers, Couriers, Shuttle Drivers, Customer

11 Service Agents, Cargo Handlers, Ramp Agents, Equipment Operators, and Ramp Transit Drivers

12 working in Defendant ’s Western Region (comprising the states of Alaska, Arizona, California, 13 Colorado, Hawaii, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming), during the 14 period October 17, 1999 through the date of judgment in this action (“Minority Employee 15 Class”). The second class consists of all African American and Latino Operations Managers and 16 other managers below the level of Senior Manager working in Defendant’s Western Region

17 during the period October 17, 1999 through the date of judgment in this action (“Minority Lower

18 Management Class”).

19

2. Representative Plaintiffs Brown, Gonzales, Guerrero, Hutchins, Sherman,

20 Smith, and Stevenson allege on behalf of themselves and the Minority Employee Class that

21 FedEx Express engages in a continuing policy and practice of racial discrimination through the

22 use of subjective and arbitrary decision making against its African American and Latino hourly

23 employees in the Western Region by (1) disproportionately assigning Minority Employees to 24 part-time and casual positions, instead of to the full-time and permanent hourly positions to which 25 similarly situated non-Minority employees are sometimes initially assigned; (2) providing 26 Minority Employees with fewer promotions to full-time and permanent hourly positions tha n 27 provided to similarly situated non-Minority employees; (3) providing Minority Employees with

28 fewer promotions to management positions than provided to similarly situated non-Minority

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 3 of 48

1 employees; (4) providing Minority Employees with less compensation, including less pay for the

2 same work and less overtime, than provided to similarly situated non-Minority employees; and

3 (5) disciplining Minority Employees for petty matters and/or for infractions unsupported or

4 contradicted by credible evidence, for which similarly situated non-Minority employees are not

5 disciplined or are disciplined less harshly.

6

3. Representative Plaintiffs Derrick Satchell and Kalini Boykin allege on

7 behalf of themselves and the class of Minority Lower Management that FedEx Express engages

8 in a continuing policy and practice of racial discrimination through the use of subjective and

9 arbitrary decision making against its African American and Latino Operations Managers and

10 other managers below the level of Senior Manager (“Minority Lower Managers”) in the Western

11 Region by (1) providing Minority Lower Managers with fewer promotions to higher management

12 grade levels and/or senior management positions than provided to similarly situated non-Minority

13 managers; (2) providing Minority Lower Managers with less compensation, including less pay for

14 the same work, than provided to similarly situated non-Minority managers; and (3) disciplining

15 Minority Lower Managers for petty matters and/or for infractions unsupported or contradicted by

16 credible evidence, for which similarly situated non-Minority managers are not disciplined or are

17 disciplined less harshly.

18

4. This action seeks an end to these discriminatory practices, and seeks

19 declaratory and injunctive relief, including rightful place relief, back pay, front pay, and

20 compensatory and punitive damages for the individual Plaintiffs and members of the two classes.

21

JURISDICTION AND VENUE

22

5. This Court has jurisdiction over this action under 28 U.S.C. § 1331 and

23 42 U.S.C. §§ 2000e-5(f)(3) and 42 U.S.C. § 1981. The action presents federal questions under

24 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended, and 42 U.S.C.

25 § 1981. Pursuant to 28 U.S.C. § 1367, this Court has supplemental jurisdiction over plaintiffs’

26 claims under the California Fair Employment and Housing Act, Cal. Gov’t Code §§ 12940, et

27 seq.

28
285717.1

6. Venue is proper in this district pursuant to 42 U.S.C. § 2000e5(f) and

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 4 of 48

1 28 U.S.C. § 1391 (b) & (c). All the named Plaintiffs’ claims arose in California, and many of the

2 acts complained of herein occurred in this District and gave rise to the claims alleged. Defendant

3 operates over 100 facilities in California and employs thousands of workers in the State of

4 California. Defendant operates at least 10 facilities in the Northern District of California.

5

THE PARTIES

6

7. Plaintiff Derrick Satchell is an African American formerly employed by

7 Defendant FedEx Express as a Courier Operations Manager at its distribution facility located at

8 335 Brokaw Road, Santa Clara, California (the “Santa Clara Facility”). Plaintiff Satchell was

9 employed by Defendant from approximately June, 1992 until April 16, 2002. Plaintiff Satchell is

10 a resident of Tracy, California. Plaintiffs are informed and believe, and thereon allege, that

11 Plaintiff is eligible for rehire.

12

8. Plaintiff Kalini Boykin is an African American currently employed by

13 Defendant as a Rapid Transport Driver (“RTD”) Operations Manager at its operations facility

14 located at 1254 Davis Street, San Leandro, California (the “San Leandro Facility”). Plaintiff

15 Boykin has been employed by Defendant in several capacities since approximately May 1995.

16 Plaintiff Boykin is a resident of Vallejo, California.

17

9. Plaintiff Valerie Brown is an African American currently employed by

18 Defendant as a Lead Customer Service Agent at the Santa Clara Facility. Plaintiff Brown has

19 been employed by defendant Fedex Express at several of its facilities and in several capacities

20 since approximately 1982. Plaintiff Brown is a resident of Tracy, California.

21

10. Plaintiff Rick Gonzales is a Latino current ly employed by Defendant

22 FedEx Express as a Courier at Defendant’s Facility in Santa Fe Springs, California. Plaintiff

23 Gonzales has been employed by Defendant since approximately May 1988. Plaintiff Gonzales is

24 a resident of Temecula, California.

25

11. Plaintiff Cynthia Guerrero is a Latina currently employed by Defendant

26 FedEx Express as a Courier at Defendant’s Santa Fe Springs facility in California. Plaintiff

27 Guerrero has been employed by Defendant since approximately 1995. Plaintiff Guerrero is a

28 resident of Santa Fe Springs, California.

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 5 of 48

1

12. Plaintiff Rachel Hutchins is an African American currently employed by

2 Defendant FedEx Express as a part-time, casual Handler at Defendant’s Facility in Bakersfield,

3 California. Plaintiff Hutchins has been employed by Defendant since approximately December

4 1995. Plaintiff Hutchins is a resident of Bakersfield, California.

5

13. Plaintiff Daniel Sherman is an African American employed by Defendant

6 FedEx Express as a part-time Lead Handler at Defendant ’s facility in Sunnyvale, California.

7 Plaintiff Sherman has been employed by Defendant since approximately February 1999. Plaintiff

8 Sherman is a resident of Santa Clara, California.

9

14. Plaintiff Kelvin Smith is an African American previously employed by

10 Defendant FedEx Express as a part-time Lead Handler at Defendant’s Facility in Santa Clara,

11 California. Plaintiff Smith was employed by Defendant from approximately November 1989 to

12 July 2002. Plaintiff Smith is a resident of Apple Valley, California. Plaintiffs are informed and

13 believe, and thereon allege, that Plaintiff is eligible for rehire.

14

15. Plaintiff Ken Stevenson is an African American currently employed by

15 Defendant FedEx Express as a Courier at Defendant’s Facility in Santa Fe Springs, California.

16 Plaintiff Stevenson has been employed by Defendant since approximately May 1997. Plaintiff

17 Stevenson is a resident of Long Beach, California.

18

16. Defendant FedEx Express is, and at all times mentioned herein was, a

19 Delaware corporation operating express mail and package delivery and freight delivery services

20 in the San Francisco Bay Area, as well as throughout the State of California and the United

21 States. FedEx Express operates facilities, among other places, in Bakersfield, Emeryville,

22 Milpitas, Oakland, San Francisco, San Jose, San Leandro, Santa Clara, Santa Fe Springs, and

23 Sunnyvale, California.

24

CLASS ALLEGATIONS

25

17. The Representative Plaintiffs bring this class action pursuant to Fed. R.

26 Civ. P. 23(a), (b)(2), and (b)(3), on behalf of: (1) a Minority Employee Class of all African

27 American and Latino hourly Handlers, Couriers, Shuttle Drivers, Customer Service Agents,

28 Cargo Handlers, Ramp Agents, Equipment Operators, and Ramp Transit Drivers working in

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 6 of 48

1 Defendant’s Western Region (comprising the states of Alaska, Arizona, California, Colorado,

2 Hawaii, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming), during the period

3 October 17, 1999 through the date of judgment in this action; and (2) a Minority Lower

4 Management Class of all African American and Latino Operations Managers and other managers

5 below the level of Senior Manager working in Defendant ’s Western Region during the period

6 October 17, 1999 through the date of judgment in this action.

7

A. Employee Class

8

18. Plaintiffs Brown, Gonzales, Guerrero, Hutchins, She rman, Smith, and

9 Stevenson are members of, and seek to represent, the Minority Employees Class.

10

19. The members of the Minority Employee Class identified herein are so

11 numerous that joinder of all members is impracticable. By the end of 2003, FedEx Express had

12 many tens of thousands of employees. Although the precise number of Minority Employees

13 affected by the discriminatory practices alleged herein is currently unknown, it is far greater than

14 can be feasibly addressed through joinder. The precise number is ascertainable from Defendant ’s

15 records.

16

20. There are many questions of law and fact common to the Minority

17 Employee Class, and these questions predominate over any questions affecting only individual

18 members. Common questions of fact or law include, among others: (1) whether FedEx Express’

19 policies or practices have a disparate impact on Minority Employees with respect to (a) initial job

20 assignment, (b) compensation, (c) promotion, and (d) discipline; (2) whether any disparate impact

21 is justified by business necessity; (3) whether the disparate impact constitutes a violation of

22 Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.; (4) whether FedEx Express has

23 intentionally discriminated against Minority Employees with respect to (a) initial job assignment,

24 (b) compensation, (c) promotion, and (d) discipline; (5) whether FedEx Express has engaged in a

25 pattern and practice of disparate treatment adverse to Minority Employees; (6) whether that

26 disparate treatment violates Title VII of the 1964 Civil Rights Act; (7) whether defendant’s

27 intentional discrimination against Minority Employees violates 42 U.S.C. § 1981; (8) whether

28 FedEx Express’ policies or practices violate Section 12940, et seq., of the California Government

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 7 of 48

1 Code, known as the Fair Employment and Housing Act (“FEHA”), as to Minority Employees

2 who have been employed or reside in California; and (9) whether injunctive relief and other

3 equitable remedies (including back pay and front pay) and compensatory and punitive damages

4 are warrant ed for the Minority Employee Class.

5

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

6 because FedEx Express has acted and/or refused to act on grounds generally applicable to the

7 Minority Employee Class, making appropriate declaratory and injunctive relief with respect to

8 Plaintiffs Brown, Gonzales, Guerrero, Hutchins, Sherman, Smith, and Stevenson and the Minority

9 Employee Class as a whole. The members of the Minority Employee Class are entitled to

10 injunctive relief to end FedEx Express’ common, uniform, and unfair racially discriminatory

11 personnel policies and practices.

12

22. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3)

13 because common questions of fact and law predominate over any questions affecting only

14 individual members of the Minority Employee Class, and because a class action is superior to

15 other available methods for the fair and efficient adjudication of this litigation. The members of

16 Minority Employee Class have been damaged and are entitled to recovery as a result of FedEx

17 Express’ common, uniform, and unfair racially discriminatory personnel policies and practices.

18 FedEx Express’ has computerized payroll and personnel data that will make calculation of

19 damages for specific members of the Minority Employee Class relatively simple.

20

B. Minority Lower Management Class

21

23. Plaintiffs Satchell and Boykin are members of, and seek to represent, the

22 Minority Lower Management Class.

23

24. The members of the Minority Lower Management Class identified herein

24 are so numerous that joinder of all members is impracticable. By the end of 2003, FedEx Express

25 had many tens of thousands of employees. Although the precise number of Minority Lower

26 Managers affected by the discriminatory practices alleged herein is currently unkno wn, it is far

27 greater than can be feasibly addressed through joinder. The precise number is ascertainable from

28 Defendant’s records.
285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 8 of 48

1

25. There are many questions of law and fact common to the Minority Lower

2 Management Class, and these questions predominate over any questions affecting only individual

3 members. Common questions of fact or law include, among others: (1) whether FedEx Express’

4 policies or practices have a disparate impact on Minority Lower Managers with respect to

5 (a) compensation, (b) promotion to senior management, and (c) discipline; (2) whether any

6 disparate impact is justified by business necessity; (3) whether the disparate impact constitutes a

7 violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.; (4) whether FedEx

8 Express has intentionally discriminated against Minority Lower Managers with respect to

9 (a) compensation, (b) promotion to senior management, and (c) discipline; (5) whether FedEx

10 Express has engaged in a pattern and practice of disparate treatment adverse to Minority Lower

11 Managers; (6) whether that disparate treatment violates Title VII of the 1964 Civil Rights Act;

12 (7) whether defendant ’s intentional discrimination against Minority Lower Managers violates

13 42 U.S.C. § 1981; (8) whether, as to Minority Lower Managers who have been employed or

14 reside in California, FedEx Express’ policies or practices violate Section 12940, et seq., of the

15 California Government Code, known as the Fair Employment and Housing Act (“FEHA”); and

16 (9) whether injunctive relief and other equitable remedies (including back pay and front pay) and

17 compensatory and punitive damages are warranted for the Minority Lower Management Class.

18

26. The claims of Representative Plaintiffs Satchell and Boykin are typical of

19 the claims of the Minority Lower Management Class.

20

27. Representative Plaintiffs Satchell and Boykin will fairly and adequately

21 represent and protect the interests of the members of the Minority Lower Management Class.

22 Plaintiffs have retained counsel competent and experienced in complex class actions and

23 employment discrimination litigation.

24

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

25 because FedEx Express has acted and/or refused to act on grounds generally applicable to the

26 Minority Lower Management Class, making appropriate declaratory and injunctive relief with

27 respect to Plaintiffs Satchell and Boykin and the Minority Lower Management Class as a whole.

28 The members of the Minority Lower Management Class are entitled to injunctive relief to end

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 9 of 48

1 FedEx Express’ common, uniform, and unfair racially discriminatory personnel policies and

2 practices.

3

29. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3)

4 because common questions of fact and law predominate over any questions affecting only

5 individual members of the Minority Lower Management Class, and because a class action is

6 superior to other available methods for the fair and efficient adjudication of this litigation. The

7 members of Minority Lower Management Class have been damaged and are entitled to recovery

8 as a result of FedEx Express’ common, uniform, and unfair racially discriminatory personnel

9 policies and practices. FedEx Express’ has computerized payroll and personnel data that will

10 make calculation of damages for specific members of the Minority Lower Management Class

11 relatively simple.

12

STATEMENT OF FACTS APPLICABLE TO ALL CLAIMS

13

A. FedEx Express’ Discriminatory Policies and Practices

14

30. Defendant FedEx Express engages in a pattern and practice of highly

15 subjective decision making regarding employment matters that is discriminatory to Minority

16 Employees and Minority Lower Managers and is manifested in initial assignments (as to Minority

17 Employees only), promotions, compensation, and discipline. While Defendant has policies

18 designed to govern these matters, many of these policies involve uncontrolled subjective criteria

19 and/or are applied by Defendant in an arbitrary and capricious manner. As a result, racial biases

20 and stereotypes enter into Defendant’s employment decisions.

21

31. Defendant’s system of subjective and arbitrary decision making has an

22 adverse impact on Minority Employees and Minority Lower Managers relative to their non-

23 Minority peers with respect to (a) initial job assignment (as to Minority Lower Managers only);

24 (b) promotion to permanent and full- time positions and to management; (c) compensation; and

25 (d) discipline. This impact is not justified by business necessity. Even if it could be so justified,

26 less discriminatory alternatives exist that could equally serve any alleged necessity.

27

32. Defendant also engages in intentional discrimination against Minority

28 Employees and Minority Lower Managers with respect to (a) initial job assignment (as to

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 10 of 48

1 Minority Employees only); (b) promotion to permanent and full- time positions and to

2 management; (c) compensation; and (d) discipline through its system of subjective and arbitrary

3 decision making, as demonstrated by anecdotal and statistical evidence.

4

33. Defendant has discriminated against Minority Employees by use of a dual-

5 employment track. For example, both full-time and part-time employees fill Handler positions at

6 a facility. The full-time positions are more lucrative and provide employees with more

7 opportunities for advancement, greater job security, and greater pay and benefits. By contrast, the

8 part-time positions are less desirable because they offer lower wages, lesser benefits, changing

9 and inconsistent work hours, proportionately heavier responsibilities, and more difficult work

10 conditions. Defendant has a systematic pattern and practice of relegating qualified Minority

11 Employees to part-time jobs, with lesser job security, compensation, and opportunity for

12 advancement. Defendant typically reserve s the full-time, permanent, higher wage positions for

13 non-Minority employees. Consistent with Defendant ’s long-standing discriminatory policies and

14 practices, Defendant typically hires Minority Employees only for entry level, part-time, and

15 casual positions.

16

34. Defendant also disproportionately fails to promote qualified Minority

17 Employees from part-time, casual positions to full-time and permanent positions at the same rate

18 as their similarly situated non-Minority counterparts. Even when FedEx Express does promote

19 Minority Employees from part-time, casual positions to full-time, permanent positions, it does not

20 promote them as quickly as their similarly situated non-Minority counterparts.

21

35. Virtually all Minority Employees of Defendant FedEx Express occupy

22 entry level, hourly positions. FedEx Express disproportionately fails to promote qualified

23 Minority Employees to lower management positions such as Operations Manager, and instead

24 disproportionately promotes similarly situated or less qualified non-Minority employees to those

25 positions.

26

36. The few Minority Employees who are able to break into the management

27 ranks are usually promoted by a small handful of Minority managers. These Minority managers,

28 however, are themselves often subjected to discriminatory practices that minimize their

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 11 of 48

1 opportunities for further advancement. Such practices include, for example, exclusion of

2 Minority managers from “informal” email buddy lists and social gatherings that are used to

3 communicate relevant operating procedures, discuss managerial issues, and post corporate

4 advancement opportunities.

5

37. FedEx Express disproportionately fails to promote the few qualified

6 Minority Operation Managers and other Minority Lower Managers to Senior Manager positions,

7 and instead disproportionately promotes similarly situated, or less qualified, non-Minority

8 Operations Managers or other non-Minority Lower Level Managers to Senior Manager positions.

9 Even when Minority Lower Managers are promoted to Senior Manager positions, they are

10 promoted less quickly than similarly situated, or less qualified, non-Minorities.

11

38. Plaintiffs are informed and believe that Minority Employees and Minority

12 Lower Managers are paid less than non-Minority employees who perform substantially similar

13 work and have similar or lesser skills and experience. Plaintiffs are further informed and believe

14 that non-Minority employees are more likely to be assigned to positions that pay better than

15 positions to which Minority Employees are assigned.

16

39. Plaintiffs are informed and believe that this discrimination in compensation

17 takes on several forms: requiring Minority Employees and Minority Lower Managers to perform

18 the job duties of higher positions without a commensurate change in their title or increase in pay;

19 paying Minority Employees and Minority Lower Managers less than non-Minority employees

20 with the same job title and job duties; providing Minority Employees with fewer desired overtime

21 hours than non-Minority employees with equal or less seniority; and not paying Minority

22 Employees the guaranteed minimum pay.1

23

40. Defendant has also engaged in a longstanding, wid espread and

24 discriminatory policy and practice of applying differential standards in determining whether to

25 subject an employee to disciplinary action. Minority Employees and Minority Lower Managers

26 are consistently reprimanded and disciplined for petty matters, and are disciplined for infractions

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.

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 12 of 48

1 unsupported or contradicted by credible evidence. Non-Minority Employees are not reprimanded

2 or disciplined for similar matters, or for infractions which are not supported by credible evidence.

3

41. Defendant routinely terminates Minority Employees and Minority Lower

4 Managers who receive three forms of written discipline within a 12- month period, even if some 5 of the three are documented counselings or Online Compliment/Counselings (“OLCC”) 2, rather

6 than formal warning letters. By contrast, Defendant does not automatically terminate non-

7 Minority employees and managers who are disciplined three times in a 12- month period. Where

8 non-Minorities have received three disciplinary actions in a 12- month period, Defendant has

9 allowed the non-Minority employee to continue his or her employment, has transferred the

10 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 Minority Lower Managers.

16

43. This pattern of denying Minority Employees and Minority Lower

17 Managers equal assignments, promotions, training, and compensation and of over-disciplining

18 Minority Employees and Minority Lower Managers, is not the result of random or non-

19 discriminatory factors. Rather, it is the result of an ongoing and continuous pattern and practice

20 of intentional race discrimination in assignments, compensation, promotions, and discipline. It is

21 further the result of reliance on policies and practices that have an adverse impact on Minority

22 Employees which cannot be justified by business necessity, and for which alternative policies and

23 practices with less discriminatory impact could be utilized that would equally serve any asserted

24 business necessity. Plaintiffs are informed and believe that such policies and practices continue

25 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.

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 13 of 48

1 that all Minority Employees and Minority Lower Managers have notice of and opportunity to

2 seek advancement, higher compensation, overtime, or more desirable assignments and training;

3

(b) Reliance upon unweighted, arbitrary and subjective criteria (used

4 by a nearly all- non-Minority managerial workforce) in making job assignment, training,

5 performance review, compensation, promotion, and discipline decisions. Even where FedEx

6 policies state objective requirements, these requirements are often applied in an inconsistent

7 manner and ignored at the discretion of management;

8

(c) Reliance on racial stereotypes in making employment decisions

9 involving job assignments, promotions, compensation, discipline and training;

10

(d) Pre-selection and “grooming” of non-Minority employees for

11 promotion, favorable assignments, higher pay, and more desirable positions;

12

(e) Maintenance of largely racially-segregated job categories and

13 departments;

14

(f) Deterrence and discouragement of Minority Employees and

15 Minority Lower Managers from seeking advancement, training, favorable assignments and higher

16 paid, more desirable positions;

17

(g) Paying Minority Employees and Minority Lower Managers lower

18 compensation tha n similarly situated non-Minorities;

19

(h) Assigning Minority Employees to lower paying positions and

20 positions with lesser advancement potential tha n those given to non-Minorities (including part-

21 time and casual positions), and advancing Minority Employees more slowly from these positions

22 than similarly situated non-Minority employees; and

23

(i) Providing less training and support to Minority Employees and

24 Minority Lower Managers than that given to non-Minority employees and managers.

25

44. As a proximate result of the racially discriminatory employment practices

26 and other wrongful acts alleged herein, Plaintiffs and members of both classes have suffered loss

27 of income, loss of advancement and promotion, loss of career opportunity, and/or loss of

28 intangible job benefits. As a proximate result of the racially discriminatory employment policies,

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 14 of 48

1 practices and other wrongful acts alleged herein, Plaintiffs and members of both classes have

2 experienced pain, suffering, severe emotional and mental distress, shame, humiliation,

3 embarrassment, and related physical ailments.

4

45. Plaintiffs, and each of them, have experienced such racially discriminatory

5 employment practices and other racially discriminatory actions by Defendant including, without

6 limitation, the following practices and actions:

7

B. FedEx Express’ Operations

8

46. The Plaintiffs to this action are, or have been, employed by Defendant

9 FedEx Express in its Western Region.

10

47. Defendant FedEx Express’ Western Region includes the following states:

11 California, Oregon, Washington, Hawaii, Nevada, Alaska, New Mexico, Arizona, Utah, Colorado

12 and Wyoming. FEDERAL EXPRESS also has a Central Support Services District stationed in

13 Anchorage, Alaska, supporting Alaska.

14

48. Defendant employs uniform employment and personnel policies

15 throughout all its districts, regions, and/or divisions in the Western Region. Regardless of facility

16 or corporate division, there are uniform policies for employees, uniform “orientation” procedures,

17 and uniform salary, assignment, pay, training, promotion, and disciplinary policies. All facilities

18 are regularly audited for compliance with these uniform, company-wide policies and procedures.

19

49. Defendant operates numerous warehouse distribution centers in California

20 and the United States. Distribution facilities are standardized and comprised of a large warehouse

21 to which packages are delivered, sorted, stored for later delivery or pick-up, and shipped.

22

50. Defendant operates several shifts at its major distribution facilities, during

23 which packages arrive and depart the warehouse. Many thousands of packages may be handled

24 and sorted on the Line (the conveyor belt used to move packages inside a station) per hour during

25 a shift at a mid- to large-sized facility. An individual package may weigh anywhere from a few

26 ounces to 75 pounds. Crates may weigh up to 200 pounds.

27

51. Defendant employs numerous Handlers to lift, sort, scan and stack

28 packages in buckets, cans and delivery vehicles. In addition, several of the Handlers are

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 15 of 48

1 designated as “Lead Handler” and are responsible for the coordination and efficient operation of

2 other Handlers in processing packages along a particular part of the Line.

3

52. In addition to Handlers, Defe ndant employs Couriers, who operate the

4 delivery vehicles and deliver and pickup packages from customers; Shuttle Drivers, who drive

5 shuttles or large tractor trucks to pick up significant numbers of packages from institutional

6 customers and to make trips to the airport and other distribution facilities; Customer Service

7 Agents, who interact with the public and handle customer pickups and complaints; Dispatchers,

8 who communicate with Couriers; Operations Managers, who supervise the various workgroups or

9 job classes in the Facility during a shift; and Station Managers, who are responsible for the entire

10 operation of a Facility; and Cargo Handlers, Ramp Agents, Equipment Operators, and Ramp

11 Transit Drivers to load and unload packages and heavy freight, to transfer the cargo to and from

12 the cargo airplanes to the onsite facility for sorting or storage, and to transfer the cargo to and

13 from the large freight vehicles or smaller shuttles that transport the packages to the various

14 distribution facilities in the area, or to their ultimate destinations.

15

53. The Regions for Defendant FedEx Express are headed by Vice Presidents

16 of Operations. The Districts for FedEx Express are headed by District Managers who report

17 directly to the Vice Presidents of Operations. The individual facilities and terminals are run by

18 Station Managers or senior managers, who report directly to District Managers. The Vice

19 Presidents of Operations, the District Managers, and the Senior/Station managers form the senior

20 management ranks for Defendant. The various operations managers at each facility form the

21 lower management ranks.

22

54. The Vice President of Operations, the District Managers and Station

23 Managers form the senior management ranks in a region. The various operations managers at

24 each facility form the lower management ranks.

25

55. Defendant has limited the senior and lower management ranks primarily to

26 non-Minorities in the Western Region. Defendant principally promotes from within and

27 maintains a work force with significant numbers of Minority Employees in lower level jobs.

28 Defendant, however, employs only a sparse number of Minorities in its management ranks.

285717.1

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Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 16 of 48

1 Plaintiffs are informed and believe, and based thereon allege, that Defendant has never employed

2 a Minority as a Vice President of Operations in the Western Region. Plaintiffs are informed and

3 believe that even when Minority Employees are promoted, on average they are advanced later,

4 and then more slowly, than similarly situated non-Minority employees.

5

56. As a result of the scarcity of Minority managers in management positions

6 in the Western Region, the managerial ranks within the District are commonly known as the “Ole

7 Boys Network” or the “Country Club.” Racial epithets have often been used by Defendant’s

8 Senior Managers.

9

57. The racial composition of Defendant’s workforce with respect to its senior

10 and lower management ranks is grossly disproportionate to the available pool of Minority

11 workers who are qualified for positions in the senior and lower management ranks of Defendant ’s

12 business.

13 14 I.

ALLEGATIONS OF NAMED PLAINTIFFS MINORITY EMPLOYEE CLASS

15

Valerie Brown

16

A. Class Claims

17

58. Plaintiff Brown was hired by Defendant in approximately 1982 as a

18 Customer Service Agent at the distribution facility in Sunnyvale Facility and transferred to the

19 Milpitas Facility in approximately 1987 upon closure of the former facility. In approximately

20 1989, Defendant employed Plaintiff as the sole African American Courier at the Milpitas Facility.

21

59. Defendant gave Plaintiff Brown written, disciplinary notations regarding

22 issues for which non-Minority Couriers were not criticized, negatively affecting her performance

23 reviews and promotability. For example, Plaintiff was reprimanded for coming in late, whereas

24 non-Minority Couriers were not disciplined when they came in late.

25

60. Plaintiff Brown made numerous complaints to the Station Manager and to

26 human resources regarding this racially discriminatory treatment. However, Defendant did not

27 take any action regarding the complaints, apart from questioning Plaintiff.

28
285717.1

61. In 1995, Defendant opened the current Santa Clara Facility and transferred

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 17 of 48

1 many of the service routes that had formerly been operated from the Milpitas Facility to the new

2 facility. In allocating the Courier routes between the two facilities, Defendant divided Plaint iff’s

3 route equally between the two centers. Plaintiff’s route was the only service route that was split.

4 All the routes for non-Minority Couriers were kept intact. In order to keep her service area,

5 Plaintiff was required to transfer to the Santa Clara Facility as a part-time courier, thus losing the

6 higher full- time pay. No non-Minority employee courier was required to convert to part-time

7 status or to give up his or her route.

8

62. Defendant engaged in race-based discrimination by passing over Plaintiff

9 Brown in favor of more junior, less qualified non-Minority employees for various promotions and

10 higher paying positions. In the early 1990s, Plaintiff applied for several sales representative

11 positions that defendant had posted to employees. Plaintiff was no t hired for any of the sales

12 representative positions despite her long service with Defendant. Instead, Defendant hired

13 numerous non-Minority recent graduates, with little or no experience, and other non-Minority

14 employees from within the company. With her seniority, Plaintiff should have been hired; the

15 advertisements for the positions indicated that prior sales experience was not a requirement since

16 the Company would provide necessary training.

17

63. Similarly, in 2000, Plaintiff applied for two higher paying Dispatch

18 positions at the Oakland Station and the Oakland Hub. However, Plaintiff did not get either

19 position. Once again, Defendant passed over her in favor of more junior, less qualified non-

20 Minority employees.

21

64. In January 2001 and February 2002, Plaintiff Brown applied for Operations

22 Manager positions at the Santa Clara Facility and the Milpitas Facility, respectively. In each case,

23 Defendant promoted a non-Minority to the positions despite the fact that the non-Minorities had

24 significantly less seniority than Plaintiff and only limited Courier experience. Plaintiff had both

25 Courier and Customer Service Agent experience and had been with the Company since 1982.

26

B. Individual Claims for Work Conditions, Harassment, and Retaliation

27

65. While Plaintiff was a Courier at the Milpitas Facility, Defendant

28 discriminated against Brown on the basis of race, saddling her with greater responsibilities than

285717.1

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 18 of 48

1 her non-Minority colleagues and thus making it more difficult for her to perform as well as them.

2 Defendant required Plaintiff to deliver packages on her route, as well as perform overflow

3 responsibilities and make additional trips to pick up freight left by other Couriers. Defendant did

4 not require Plaintiff’s non-Minority colleagues to perform these additional duties.

5

66. Defendant harassed Plaintiff Brown by criticizing her in a manner that was

6 publicly embarrassing and humiliating. Instead of criticizing Plaintiff in the privacy of an office

7 as they did with non-Minority employees, Defendant would stop the conveyor belt to draw

8 attention and criticize Plaintiff while she was working among others on the Line.

9

67. In July 2002, Defendant retaliated against Plaintiff Brown for filing a racial

10 discrimination complaint with the Department of Fair Employment and Housing. In response to

11 Plaintiff’s complaint, Defendant disciplined Plaintiff more harshly than her non-Minority

12 colleagues. Defendant disciplined Plaintiff in response to a customer complaint but did not

13 discipline the non-Minority employees also mentioned in the complaint.

14

68. In addition to the foregoing, Plaintiff Brown has experienced disparate

15 treatment on the basis of race with respect to many employment practices by Defendant.

16

69. Plaintiff Brown filed a timely charge of discrimination with the EEOC on

17 April 16, 2003, attached hereto as Exhibit “A,” which was automatically cross- filed with the

18 DFEH. Plaintiff Brown has received Notices of Right to Sue from the EEOC and from the

19 DFEH.

20

Rick Gonzales

21

A. Class Claims

22

70. Plaintiff Rick Gonzales is a Latino male who has been employed by

23 Defendant FedEx Express as a Courier since May 1988.

24

71. Defendant has undermined Plaintiff Gonzales’ attempts to attain

25 management positions, while actively supporting non-Minority candidates in their efforts to

26 secure management positions. Defendant never spoke to Plaintiff Gonzales about the possibility

27 or process of entering management, although he had expressed his desire to advance to

28 management several times. Further, Defendant did not offer him the support provided non-

285717.1

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 19 of 48

1 Minority employees in preparing for management, such as covering shifts so that management

2 hopefuls could participate in management training classes. Defendant ’s discriminatory

3 management selection practices discouraged Plaintiff Gonzales from applying for management

4 positions.

5

72. Plaintiff Gonzales observed that non-Minority employees were promoted

6 to management faster than Minority Employees, and that management steered non-Minority

7 employees into management positions. For example, during Plaintiff’s 5- year tenure at

8 Defendant’s Santa Fe Station location, several non-Minority employees became managers, while

9 only one Minority entered management. The Minority Employees were consistently given the

10 worst shifts, working at night with the newest employees. Plaintiff observed less senior non-

11 Minority employees being promoted to management before him even though he was equally if

12 not more qualified for the positions that were open, but he did not observe his Minority peers

13 attain management positions.

14

73. Defendant has further discriminated against Plaintiff Gonzales by engaging

15 in discriminatory employment practices intended to and/or having the effect of undermining

16 Plaintiff’s efforts to advance into Defendant ’s management ranks. In August, 2002, Defendant

17 refused to allow Plaintiff to apply for management positions because his performance review

18 rating was 3/10 of a point below the alleged cutoff. Plaintiff believes that Defendant manipulates

19 such subjective criteria in order to control who may become eligible for management.

20

74. Defendant has discriminated against Plaintiff Gonzales by disciplining

21 Plaintiff for infractions for which non-Minority employees were not similarly disciplined. For

22 example, Plaintiff has received multiple OLCC’s and warning letters for infractions such as

23 incorrect calculations, packages not returned, and timecard errors. In contrast, his non-Minority

24 peers were rarely disciplined for such conduct.

25

B. Individual Claim for Failure to Rehire from Disability

26

75. Defendant discriminated against Plaintiff Gonzales by failing to assisting

27 him in securing a suitable position upon return from workers compensation leave. After Plaintiff

28 Gonzales was injured on the job for the second time with a severe lower back injury, he required

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 20 of 48

1 an extended leave. When he prepared to return to work, Defendant displaced him from his prior

2 position and refused to identify a suitable position for him anywhere in Southern California,

3 despite Plaintiff’s 12- year tenure and his offer to accept any position available, including those

4 requiring relocation to Los Angeles or Las Vegas. Instead, Defendant sent Plaintiff Gonzales a

5 termination letter on approximately September 13, 2002. Defendant has routinely assisted non-

6 Minority employees who have suffered permanent and temporary disabilities to find suitable job

7 opportunities with FedEx.

8

76. When Plaintiff Gonzales called Defendant recently, he was informed that

9 his status was not terminated but instead “inactive.”

10

77. In addition to the foregoing, Plaintiff Gonzales has experienced disparate

11 treatment on the basis of race with respect to many employment practices by Defendant.

12

78. Plaintiff Gonzales filed a timely charge of discrimination with the EEOC

13 on April 15, 2003, attached hereto as Exhibit “B,” which was automatically cross-filed with the

14 DFEH. Plaintiff Gonza les has received Notices of Right to Sue from the EEOC and from the

15 DFEH.

16

Cynthia Guerrero

17

79. Defendant hired Plaintiff Guerrero in approximately 1995. Plaintiff

18 worked for Defendant in Commerce City and Santa Fe Springs, California as a Customer Service

19 Agent and as a Courier.

20

80. Among other things, Defendant discriminated against Plaintiff Guerrero by

21 failing to promote her to positions for which she was qualified and instead promoting less senior,

22 less qualified non-Minority employees over her, and/or by paying Plaintiff Guerrero less than

23 non-Minority employees, even though Plaintiff has comparable responsibilities and more

24 seniority and work experience. Plaintiff Guerrero was paid at the Courier/Handler rate until late

25 2002, even though she was performing the work of a regular Courier. The difference in pay

26 between the two positions is about $1/hour. The difference in job responsibilities is that

27 Courier/Handlers cannot exceed 8 stops per hour, while Couriers can. Plaintiff Guerrero was

28 often doing 18 stops per hour.
285717.1

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 21 of 48

1

81. Upon beginning to perform the duties of a Courier, Plaintiff Guerrero

2 asked Defendant when she would be upgraded to Courier pay. Defendant told Plaintiff she could

3 not be upgraded immediately because of a hiring freeze, but that she wouldn’t have to wait more

4 than a month. In fact, Plaintiff was not upgraded until late 2002, after she filed her EEOC charge.

5 Meanwhile, Plaintiff’s non-Minority colleagues did receive the upgrade.

6

82. Defendant also discriminated against Plaintiff Guerrero by reducing her

7 work hours, thus negatively affecting her compensation, while increasing the work hours given to

8 non-Minority employees with less seniority.

9

83. Defendant further discriminated against Plaintiff Guerrero by issuing

10 formal disciplinary actions against her for petty or trivial matters, or matters unsupported or

11 contradicted by credible evidence. Defendant has given Plaintiff Guerrero over 50 calendar

12 notations for trivial matters such as failure to pull an airbill copy or forgetting to sign her time

13 card, for which non-Minority employees are not disciplined. In fact, Defendant routinely

14 overlooks late arrival, no-shows, and other more significant breaches of conduct by non-Minority

15 employees.

16

84. Defendant has systematically discriminated against the employees in

17 Plaintiff Guerrero’s workgroup, called Loop 9, all of whom are Minority Employees. Everyone

18 that has been fired at the Santa Fe Springs facility has been from her workgroup.

19

85. In addition to the foregoing, Plaintiff Guerrero has experienced disparate

20 treatment on the basis of race with respect to many employment practices by Defendant.

21

86. Plaintiff Guerrero filed timely charges of discrimination with the EEOC on

22 June 13, 2002 and June 18, 2003, attached hereto as Exhibit “C,” which were automatically

23 cross- filed with the DFEH. Plaintiff Guerrero has received Notices of Right to Sue from the

24 EEOC and from the DFEH.

25

Rachel Hutchins

26

87. Plaintiff Rachel Hutchins is an African American woman currently

27 employed by Defendant as a Handler in Bakersfield, California. Plaintiff worked for Defendant

28 from December 1995 through April 1996, and again since March 2001.

285717.1

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 22 of 48

1

88. Defendant hired and/or promoted less senior, less experienced non-

2 Minority individuals to permanent or full-time positions before Defendant gave Plaintiff a

3 permanent and/or full-time position. Plaintiff Hutchins has remained a casual Handler during her

4 more than two and a half years with Defendant, while non-Minority employees with less seniority

5 have repeatedly been promoted into permanent positions before her.

6

89. Defendant has passed over Plaintiff in favor of less or equally qualified

7 non-Minority individuals in filling positions for which Plaintiff has applied. Since approximately

8 October 2002, Plaintiff Hutchins has sought a position as a Customer Service Agent (CSA).

9 From approximately May or June 2002 to April 2003, Plaintiff Hutchins performed the duties of a

10 Customer Service Agent, without a commensurate change in title or salary. Although Customer

11 Service Agent positions have become available, Defendant has not placed Plaintiff Hutchins in

12 these positions.

13

90. Plaintiff Hutchins has complained several times to Defendant about its

14 failure to promote her to a Customer Service Agent position. Defendant has offered various

15 excuses for this failure, including that Plaintiff may not be promoted from Casual status.

16 However, Defendant has promoted non-Minority employees to this position from Casual status.

17 In one such instance, two Customer Service Agent positions became available in approximately

18 November 2002, and Defendant informed Plaintiff Hutchins that she would receive one of the

19 positions. Instead, Defendant placed in one of the positions a non-Minority employee who had no

20 experience as a Customer Service Agent, whom Plaintiff Hutchins herself had trained, and who

21 had quit her job a few weeks previously.

22

91. Most recently, in April 2003, Defendant informed Plaintiff that she would

23 receive the next Customer Service Agent position that opened, without being required to apply.

24 Since approximately May 2003, a Customer Service Agent position has been available. Although

25 Plaintiff is qualified, Defendant still has not placed Plaintiff Hutchins in a Customer Service

26 Agent position.

27

92. Defendant has discriminated against Plaintiff Hutchins with respect to

28 compensation by paying her as a Handler, while requiring her to perform the duties of a Customer

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 23 of 48

1 Service Agent for the past eight months. Defendant refuses to offer Plaintiff Hutchins a

2 Customer Service Agent position, or to change her title or compensation to reflect her additional

3 duties.

4

93. Defendant has also discriminated against Plaintiff Hutchins with respect to

5 compensation by failing to pay her overtime for hours worked on Saturday over an approximately

6 two month period. Plaintiff Hutchins understands that according to FedEx policy, temporary and

7 casual employees are to be paid at the rate of one and a half times their hourly rate for work

8 performed on Saturday. Plaintiff is informed and believes, and on that basis alleges, that non-

9 Minority employees have been paid correctly for such overtime. Defendant has discriminated

10 against Plaintiff Hutchins with respect to compensation by allowing her to work fewer hours than

11 similarly situated non-Minority employees.

12

94. In addition to the foregoing, Plaintiff Hutchins has experienced disparate

13 treatment on the basis of race with respect to many employment practices by Defendant.

14

95. Plaintiff Hutchins filed a timely charge of discriminatio n with the EEOC

15 on May 27, 2003, attached hereto as Exhibit “D,” which was automatically cross- filed with the

16 DFEH. Plaintiff Hutchins has received Notices of Right to Sue from the EEOC and from the

17 DFEH.

18

Daniel Sherman

19

A. Class Claims

20

96. Defendant hired Plaintiff Sherman in approximately February 1999 as a

21 casual, part-time Handler at the Sunnyvale Facility. Despite repeated requests for a permanent

22 position, Defendant hired and/or promoted many less senior non-Minority individuals to

23 permanent positions before Defendant gave Plaintiff a permanent position.

24

97. Despite Plaintiff’s distinguished service, Defendant has repeatedly passed

25 over Plaintiff and refused to promote him to full-time, higher paying positions for which he has

26 applied, including several available Courier and Ramp Agent positions. Instead, Defendant

27 promoted non-Minority employees with less seniority and experience. Plaintiff has trained, and

28 continues to train, many of the non-Minority employees who have obtained full-time, higher

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 24 of 48

1 paying positions at his expense.

2

98. Defendant discriminated against Plaintiff Sherman by paying him less than

3 non-Minority employees, even though Plaintiff has comparable responsibilities and more

4 seniority and work experience.

5

B. Individual Claim for Working Conditions and Harassment

6

99. Defendant discriminated against Plaintiff Sherman by requiring him to

7 perform the most difficult and physically strenuous jobs at the facility, and to do so with the help

8 of fewer co-workers than non-Minority employees. Further, when operations are very busy or a

9 station is overwhelmed, Defendant repeatedly fails to provide Plaintiff with the additional

10 assistance provided to non-Minority employees who request help.

11

100. In November 2001, Plaintiff Sherman was designated a Lead Handler.

12 However, Defendant did not decrease the physical demands of his job or increase his

13 compensation; instead, he was simply required to do them in addition to new supervisory

14 responsibilities. Despite seeing that Plaintiff was consistently overworked, Defendant repeatedly

15 refused to provide support to him as a Lead Handler. By contrast, Defendant promptly responded

16 to requests for additional assistance that came from non-Minority employees and Lead Handlers.

17

101. In addition to the foregoing, Defendant has engaged in numerous other

18 taunting, harassing and discriminatory practices in order to create a ho stile work environment for

19 Plaintiff Sherman. For example, Gary Meek, a non-Minority manager, has consistently yelled at

20 Plaintiff, and on occasion has aggressively pointed his finger in Plaintiff’s face or in his direction.

21 Meek has engaged in such beha vior toward Plaintiff in front of other employees so as to

22 embarrass and humiliate Plaintiff. Meek has further condoned similar yelling and pointing by

23 non-Minority Lead Handlers, when such behavior has been directed at Plaintiff or other African

24 Americans. By contrast, Defendant has not permitted yelling, finger pointing or other

25 disrespectful gestures towards non-Minority employees. Defendant has also explicitly informed

26 Plaintiff that as a Lead, he should not use yelling or pointing to reprimand the colleagues working

27 in his group.

28
285717.1

102.

In addition to the foregoing, Plaintiff Sherman has experienced disparate

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 25 of 48

1 treatment on the basis of race with respect to many employment practices by Defendant.

2

103. Plaintiff Sherman filed a timely charge of discrimination with the EEOC on

3 August 15, 2003, attached hereto as Exhibit “E,” which was automatically cross- filed with the

4 DFEH. Plaintiff Sherman has received Notices of Right to Sue from the EEOC and the DFEH.

5

Kelvin Smith, Sr.

6

A. Class Claims

7

104. Defendant hired Plaintiff Smith in approximately November 1989 as a

8 part-time Courier at the Santa Clara Facility.

9

105. Defendant consistently passed over Plaintiff in favor of less or equally

10 qualified non-Minorities in filling management and other positions of responsibility for which

11 Plaintiff applied. In many cases, Plaintiff had to continue training the promoted employees in

12 their new management responsibilities.

13

106. From April 2002 through July 2002, Plaintiff Smith acted as Operations

14 Manager for PM Sort Operations at his Facility. His duties included closing down the facility,

15 covering sick calls, enlisting Couriers to help loading, assuring that freight got on shuttles in time,

16 guiding the movement of trucks within the Facility, and coordinating the activities of Handlers,

17 Loaders and Dispatchers. The only management function that Plaintiff did not perform was

18 providing performance reviews. Repeatedly, Plaintiff requested that Defendant promote him to

19 the open Operations Manager position. Defendant refused to promote Plaintiff to the position.

20 However, Defendant has previously promoted non-Minority employees to Operations Manager

21 who, as in Plaintiff’s case, had performed the responsibilities of the position in the absence of a

22 manager. Defendant has promoted Plaintiff’s non-Minority colleagues who have not participated

23 in or completed ASPIRE to management positions.

24

107. Defendant undermined Plaintiff Smith’s efforts to attain management

25 positions while actively supporting non-Minority candidates in their efforts to secure management

26 positions. Plaintiff participated in the ASPIRE management training program, successfully

27 completed the program’s required tests and peer assessments, and not only met but exceeded the

28 performance review requirements. However, Defendant failed to allow Pla intiff to complete the

285717.1

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CONSOLIDATED AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 26 of 48

1 final part of the program, an oral examination that had to be scheduled by management. From

2 April 2002 through July 2002, Plaintiff’s managers ignored Plaintiff’s repeated requests to take

3 the oral examination. By contrast, Defendant has consistently assisted non-Minority ASPIRE

4 participants in completing the program.

5

108. Defendant discriminated against Plaintiff Smith by paying Plaintiff less

6 than less senior and/or similarly situated non-Minority employees. Defendant paid Plaintiff less

7 than less experienced non-Minority Lead Handlers, even when Plaintiff was required to perform

8 management duties for the PM operations.

9

109. Defendant provided inferior training to Plaintiff Smith than to similarly

10 situated non-Minority employees. While Pla intiff was acting as an Operations Manager from

11 April 2002 to July 2002, Defendant failed to provide Plaintiff with the level of training provided

12 to Plaintiff’s non-Minority peers with respect to particular operational indices in Plaintiff’s

13 facility.

14

110. Defendant discriminated against Plaintiff Smith by disciplining Plaintiff for

15 infractions for which non-Minority employees were not similarly disciplined. In February 2002,

16 Defendant issued Plaintiff Smith his first warning letter for administering a makeshift procedure

17 to assure that the Facility would meet performance objectives. Plaintiff Smith was also

18 suspended for a week. Plaintiff had performed the procedure only upon directives from his non-

19 Minority Manager and Station Manager. However, Defendant did not discipline, either verbally

20 or with warning letters, the two non-Minority managers responsible for implementing the Astra

21 Sops procedure. African American Plaintiff Satchell was the only other person disciplined in the

22 matter. Similarly, Defendant has not disciplined non-Minority employees for actions taken as a

23 result of management directives.

24

111. In May 2002, Plaintiff Smith was again unfairly disciplined when a delay

25 caused freight to arrive late at the ramp. The non-Minority manager responsible for the delay was

26 not disciplined.

27

B. Individual Claims for Termination and Retaliation

28
285717.1

112.

In July 2002, in retaliation for Plaintiff Smith’s filing of a complaint with

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 27 of 48

1 the Department of Fair Employment and Housing for racial discrimination and harassment,

2 Defe ndant wrongfully terminated Plaintiff Smith for a trivial time card oversight that had no

3 practical impact on Plaintiff’s wages and that was identified on the same day before any

4 processing. Defendant routinely allows non-Minority employees or managers to correct

5 identified mistakes on timecards.

6

113. In this particular case, Plaintiff Smith failed to clock an authorized ten-

7 minute break to collect his children from daycare. Plaintiff’s Station Manger, upon seeing

8 Plaintiff with his children, took it upon herself to instruct Plaintiff’s manager to check his

9 timecard to see if Plaintiff had clocked his break. The Station Manager did not permit Plaintiff to

10 correct the mistake, even though non-Minority employees routinely correct mistakes on time

11 cards. Non-Minority Employees also routinely take breaks without indicating them by time codes

12 on their time cards. Defendant does not strictly police every movement of non-Minority

13 employees, nor do Station Managers concern themselves with such employee matters that are

14 more properly handled by an Operations Manager. Finally, Defendant is liberal in

15 accommodating childcare concerns of non-Minority employees, especially when such

16 accommodation has, as in the case of Plaintiff, no material impact on the employee’s job

17 performance.

18

114. In August 2002, Defendant refused to rehire Plaintiff Smith to his position

19 as Lead Handler when it upheld its discriminatory discipline and wrongful termination actions

20 against him. Plaintiff had filed an internal discrimination complaint, as well as a GFT request in

21 connection with his discriminatory discipline and wrongful termination claims dating from

22 February 2002 through Plaintiff’s termination in July 2002. As part of his appeal, Plaintiff

23 submitted facts supporting his claims of differential treatment and discrimination at the hands of

24 Defendant. Defendant has overturned unfair actions and rehired and non-Minority employees

25 upon the basis of much less credible information than that provided by Plaintiff.

26

115. In addition to the foregoing, Plaintiff Smith has experienced disparate

27 treatment on the basis of race with respect to many employment practices by Defendant.

28
285717.1

116.

Plaintiff Smith filed a timely charge of discrimination with the EEOC on

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Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 28 of 48

1 June 24, 2003, which was automatically cross- filed with the DFEH, and filed a separate timely

2 charge with the DFEH on July 22, 2002. These charges are attached hereto as Exhibit “F.”

3 Plaintiff Smith has received Notices of Right to Sue from the EEOC and from the DFEH.

4

Ken Stevenson

5

A. Class Claims

6

117. Plaintiff Stevenson is an African American male currently employed by

7 Defendant as a Courier in Santa Fe Springs, California. Plaintiff Stevenson began working for

8 Defendant in approximately May 1997 as a casual, part-time Courier.

9

118. Defendant has undermined Plaintiff Stevenson’s efforts to attain

10 management positions, while actively supporting non-Minority employees in their attempts to

11 enter into management. Plaintiff Stevenson has sought to apply for promotion more than ten

12 times, but has been denied each time. Rather than respond to Plaintiff Stevenson’s multiple

13 efforts to secure a management position, Defendant has offered baseless excuses for their failure

14 to promote him. For example, Senior Manager Mike Smith told Plaintiff Stevenson that he must

15 complete management classes, but when Plaintiff indicated his willingness to begin management

16 classes, Smith postponed the classes, and then only held them intermittently. On other occasions,

17 Defendant has told Plaintiff there is a “hiring freeze.” Meanwhile, Defendant has promoted other

18 less senior non-Minority employees over Plaintiff Stevenson, such as Tim Becker,

19 notwithstanding the fact that Plaintiff Stevenson received a higher management assessment.

20

119. Defendant has also required Plaintiff to attend management classes on his

21 own time, while non-Minority employees, such as Becker and Michael Rose, are allowed to do

22 them during work time.

23

120. Smith further told Plaintiff Stevenson that he would never be a manager as

24 long as Smith worked at the facility. Plaintiff’s co-workers have told him they have heard similar

25 comments from Smith and others about Plaintiff Stevenson.

26

121. Defendant has discriminated against Plaintiff Stevenson by disciplining

27 Plaintiff for infractions for which non-Minority employees were not similarly disciplined. For

28 example, Defendant has disciplined Plaintiff Stevenson for failing to tuck in his shirt, but

285717.1

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 29 of 48

1 Defendant refuses to purchase shirts big enough for Plaintiff Stevenson. Defendant has further

2 used such petty infractions as barriers to Plaintiff Stevenson’s promotion into management. For

3 example, on May 8, 2003, Defendant informed Plaintiff Stevenson that he could not apply for a

4 vacant manager position because his socks were too short. When Plaintiff Stevenson pointed out

5 that Mike Aroz, a non-Minority employee, wore his socks in an identical fashion, Defendant

6 simply instructed Aroz to change his socks, but did not prevent him from applying for the

7 manager position. Aroz became a manager approximately two weeks later.

8

B. Individual Claim for Harassment

9

122. 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

123. 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

124. 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. MINORITY LOWER MANAGEMENT CLASS

23

Derrick Satchell

24

A. Class Claims

25

125. 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 for full- time employment, Defendant hired and/or promoted less

28 senior, less experienced non-Minority individuals to Courier and other full-time positions before

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1 Defendant gave Plaintiff a full-time position.

2

126. Once Plaintiff Satchell finally obtained a position as an Operations

3 Manager, Defendant undermined Plaintiff Satchell’s efforts to advance within management, while

4 actively supporting his non-Minority peer managers in their efforts to advance within

5 management. Defendant discriminated against Plaintiff Satchell by failing to advance or promote

6 Plaintiff Satchell from a Level 25 to Level 26 Operations Manager during his employment with

7 the Company. Plaintiff had satisfied all the requirements for a Level 26 promotion, including

8 having been in a Level 25 manager position for over 18 months and having received successive

9 performance reviews in excess of 3.0. By contrast, Defendant promoted numerous non-Minority

10 Operations Managers to Level 26 who joined management after Plaintiff and had received equal

11 or lower performance reviews.

12

127. Defendant also consistently issued formal disciplinary actions against

13 Plaintiff Satchell for petty or trivial matters for which non-Minority employees were not

14 disciplined, thus lowering Plaintiff’s performance reviews and rendering him ineligible for

15 promotion.

16

128. Defendant excluded Plaintiff Satchell from “informal” email buddy lists

17 used by Regional, District and Station Managers to communicate relevant operating procedures

18 and corporate advancement opportunities and to informally discuss managerial issues.

19

129. Defendant discriminated against Plaintiff Satchell by paying Plaintiff less

20 than less senior and/or similarly situated non-Minority employees. Throughout Plaintiff’s

21 employment with Fedex, Defendant paid Plaintiff Satchell less than non-Minority managers even

22 though Plaintiff had comparable responsibilities and more seniority and management experience.

23

130. In approximately December 1999, when Plaintiff Satchell was Courier

24 Operations Manager, Plaintiff received his first warning letter for excessive late deliveries by

25 Couriers on Mondays. Defendant disciplined Plaintiff despite the fact that the problem dated

26 back to a prior Operations Manager’s tenure and that the late deliveries were occurring only on

27 Plaintiff’s scheduled day off. Defendant has not reprimanded non-Minority managers, much less

28 given warning letters, where the non-Minorities were not directly responsible for the infraction.

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1 In addition, Defendant had not disciplined the non-Minority manager who supervised the

2 workgroup prior to Plaintiff.

3

131. In approximately August 2001, Defendant disciplined Plaintiff Satchell for

4 insubordination for failure to submit, in a timely manner, an action plan for correcting a

5 deficiency in his operations. Plaintiff failed to submit the action plan on time because Defendant

6 had not properly notified Plaintiff of his need to submit the Plan. Plaintiff was required to work

7 through the night to prepare the plan and submitted it a day late. Defendant disciplined Plaintiff

8 even though Plaintiff had proof that other non-Minority managers were also failing in the cited

9 area, but were not required to submit similar Action Plans and were not otherwise disciplined.

10

132. Defendant disciplined Plaintiff Satchell again in November 2001 in

11 connection with his performance review. Defendant gave Plaintiff a warning letter after rating

12 Plaintiff’s performance as 1.0 in one area of the review due to Plaintiff’s group’s failure to

13 improve in that area. Plaintiff’s Senior Manager, Christopher Matthews, refused to alter the low

14 rating when Plaintiff produced emails from Matthews commending Plaintiff’s group for

15 improvement in the area in question, and stating “excellent job; now you only need to maintain

16 it.” Defendant’s personnel policy states that disciplinary letters should not be issued where only

17 one or two areas of a review are deficient; a warning letter is warranted only if an entire

18 performance review is 1.0 or below. Defendant does not issue warning letters to non-Minority

19 managers regarding performance reviews unless the entire review is unsatisfactory. Further,

20 Defendant does not issue warning letters to non-Minorities who provide evidence contradicting

21 an allegation of unsatisfactory performance.

22

133. On December 1, 2001, Plaintiff met with District Director Steven Seymour

23 regarding the warning letter. Seymour assured Plaintiff Satchell that the letter would not be

24 entered in the system. Based on Seymour’s assurance, Plaintiff did not purse the guaranteed fair

25 treatment (“GFT”) process further. When Defendant terminated Plaintiff’s employment in April

26 2002 for three active, documented disciplinary actions, the warning letter in question was counted

27 toward the three.

28
285717.1

134.

In November 2001, Defendant gave Plaintiff an OLCC because he had

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1 failed to cancel excess minimum hour pay for Couriers in his group who had not actually worked

2 the minimum number of hours. At the time, Plaintiff informed Defendant that canceling the

3 minimum without a waiver would violate policy. In December 2001, Seymour and Matthews

4 informed managers at the Santa Clara Facility that they wanted excess minimum hours cancelled

5 regardless of waivers. Again, Plaintiff objected, citing policy, but cancelled the hours anyway.

6 Plaintiff was issued a warning letter, however, because he inadvertently failed to cancel the

7 excess minimum hours of a few couriers. Whereas Defendant issued Plaintiff a warning letter for

8 his inadvertent failure to cancel payment for excess minimum hours, Defendant refused to issue

9 warning letters to non-Minority managers, such as Paul Birkenbach, who also failed a second

10 time to cancel excess minimum hours.

11

135. Defendant provided inferior training to Plaintiff Satchell than similarly

12 situated non-Minority employees, adversely affecting his ability to obtain a promotion.

13 Defendant failed to provide Plaintiff with the level of training provided to Plaintiff’s non-

14 Minority peer managers with respect to particular operational indices in Plaintiff’s facility.

15 Defendant also failed to sufficiently staff Plaintiff’s workgroup so that objectives could be met in

16 accordance with Defendant’s expectations. By contrast, Defendant provided Plaintiff’s non-

17 Minority peer managers with proper staffing or assigned employees from other workgroups to

18 assist the workgroups of non-Minority employees.

19

B. Individual Claims for Termination and Retaliation

20

136. Defendant discriminated against Plaintiff Satchell by terminating Plaintiff

21 for conduct for which non-Minority employees were not similarly terminated. In March 2002,

22 Defendant had an interim manager issue Plaintiff Satchell a third documented disciplinary action

23 within a 12- month period, and immediately terminated his employment. Defendant disciplined

24 and terminated Plaintiff for time card falsification. The time card “falsification” forming the

25 basis for the termination was Plaintiff’s cancellation of employee minimum hours in December

26 2001 that Plaintiff performed upon directives from Matthews and Seymour. Plaintiff had

27 objected to canceling the minimum hours without an employee waiver.

28
285717.1

137.

On August 28, 2002, Defendant refused to rehire Plaintiff Satchell as an

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1 Operations Manager after an Appeals Board in Memphis, Tennessee refused to overturn their

2 discriminatory discipline and wrongful termination actions. In April 2002, Plaintiff had filed an

3 internal discrimination complaint, as well as a GFT request in connection with his discriminatory

4 discipline, promotion, compensation, and wrongful termination claims dating from August 2001

5 through Plaintiff’s termination. As part of his appeal, Plaintiff submitted facts supporting his

6 claims of differential treatment and discrimination by Defendant. Defendant has rehired and

7 overturned unfair actions against non-Minority employees upon the basis of much less credible

8 information than that provided by Plaintiff.

9

138. Defendant retaliated against Plaintiff Satchell for complaining of

10 discrimination. After Defendant terminated Plaintiff’s employment in April 2002, Plaintiff filed a

11 race discrimination and wrongful termination complaint against Defendant with the California

12 Department of Fair Employment and Housing. In December 2002, Plaintiff filed a civil

13 complaint for race discrimination in Superior Court. In response to Plaintiff’s complaints,

14 Defendant has engaged in a pattern of making defamatory statements against Plaintiff to

15 employers seeking to hire Plaintiff. As a result of Defendant’s defamatory statements, Plaintiff

16 has been unable to secure employment to this date. On numerous occasions, prospective

17 employers have successfully completed several rounds of interviews with Plaintiff, have

18 commended Plaintiff on his presentation and employment record, have indicated satisfaction with

19 his references, and have provided Plaintiff with strong indication of their interest in employing

20 Plaintiff. However, upon speaking with or receiving letters from Defendant regarding Plaintiff,

21 the employers have declined to hire Plaintiff. In June 2002, Airborne Express declined to hire

22 Plaintiff after Defendant defamed Plaintiff in retaliation for filing a complaint. Yellow

23 Transportation similarly declined to hire Plaintiff after Defendant ’s retaliatory actions. Further,

24 after speaking with Defendant in December 2002, Coca-Cola Company refused to hire Plaintiff

25 after 6 successful interviews from August 2002 to December 2002.

26

139. In addition to the foregoing, Plaintiff Satchell has experienced disparate

27 treatment on the basis of race with respect to many employment practices by Defendant.

28
285717.1

140.

Plaintiff Satchell filed a timely charge of discrimination with the EEOC on

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1 May 6, 2003, attached hereto as Exhibit “H,” which was automatically cross- filed with the

2 DFEH. Plaintiff Satchell has received Notices of Right to Sue from the EEOC and the DFEH.

3

Kalini Boykin

4

A. Class Claims

5

141. Plaintiff Boykin was hired by Defendant in approximately May 1995 as a

6 casual, part-time Handler at the Oakland Hub. Despite repeated requests for available permanent

7 and full-time positions, Defendant hired and/or promoted many less senior non-Minority

8 individuals to permanent positions before Defendant gave Plaintiff a permanent position. For

9 example, in approximately June 1997, Plaintiff Boykin applied for the full-time position of

10 Control Room Agent at the Oakland Hub; however, Defendant passed her over in favor of a

11 subsequently hired and less experienced, non-African American.

12

142. Plaintiff also interviewed for numerous other full- time positions before she

13 was finally promoted to a full- time Truck Control Agent position in January 1998. Other non-

14 Minority employees with similar qualifications and experience were promoted to this position

15 sooner than Plaintiff Boykin.

16

143. Plaintiff Boykin also was rarely permitted to earn overtime hours, while

17 non-Minority employees were permitted to work overtime when necessary, earning wages at the

18 higher overtime rate.

19

144. In 1999, Plaintiff Boykin was promoted to an RTD Driver position after

20 several unsuccessful attempts to obtain the promotion despite being qualified. As in her previous

21 positions, Plaintiff Boykin excelled as an RTD Driver. She received a consistent 7.0 out of 7.0 on

22 her performance reviews. Plaint iff also excelled in Defendant’s ASPIRE management training

23 program. On each of the three program assessments, (i) the Quantitative Assessment, (ii) the

24 Psychological Assessment, and the (iii) Peer Assessment, Plaintiff scored the highest possible

25 grade, 5 on a scale of 5.

26

145. In May 2000, Plaintiff applied for one of two Operations Manager

27 positions at the San Leandro Facility. Despite Plaintiff’s superior qualifications and the strong

28 recommendation of her manager, Defendant, including specifically Senior Manager Robert

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1 Montez and Regional Vice President Michael Pigors, passed over Plaintiff in favor of a less

2 experienced and less qualified non-Minority applicant, Carl Bowersmith.

3

146. Because of Plaintiff’s superior qualifications, Defendant improperly

4 conducted the interviews so as to minimize the advantages that Plaintiff possessed over the two

5 non-Minority applicants. Contrary to Defendant ’s policy, Defendant conducted the interviews at

6 separate locations and with separate panels.

7

147. In response to the discriminatory hiring procedures, Plaintiff filed a GFT.

8 After an investigation, Defendant was directed to conduct the interviews again, and interviews

9 were scheduled for the following week at another facility before the same panel.

10

148. At the second interview, Defendant once again selected Bowersmith for the

11 two Operatio ns Manager positions. Defendant was unable to explain why Bowersmith was more

12 qualified than Plaintiff when she raised the issue with manager Montez.

13

149. After being passed over a second time, Plaintiff Boykin filed another GFT

14 request together with an EEO discrimination complaint. Defendant failed to properly investigate

15 Plaintiff’s discrimination complaint. Even though Defendant scheduled an arbitration to explore

16 Plaintiff’s allegations, they failed to follow up or report any findings to Plaintiff. Moreover, no

17 one ever contacted Plaintiff from Employee Relations at Defendant’s Memphis headquarters to

18 discuss the complaint with Plaintiff. In fact, Plaintiff has never received a response to her EEO

19 complaint even though she has never withdrawn it.

20

150. Even after Plaintiff ultimately was made a manager after several attempts,

21 Defendant continued to discriminate against her on the basis of race. While Defendant paid Carl

22 Bowersmith a salary in the first quartile for managers in their grade (Level 25), Plaintiff Boykin

23 was paid at the lowest rate in Level 25. Plaintiff was paid at a lower rate despite being assigned

24 greater management responsibilities than the two non-Minority managers. Upon becoming a

25 manager, Plaintiff Boykin assumed all the responsibilities of the manager who had stepped down

26 and more. She is responsible for the PM operations for RTD drivers in the entire South Bay and

27 mid-Peninsula service area, which includes both San Francisco stations, the South San Francisco

28 Facility, Palo Alto, the San Jose Facility, the Santa Clara Facility, the Sunnyvale Facility, the

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1 Oakland Hub, and the San Jose and San Francisco Ramps. The operations for which she is

2 responsible last from 3:00 p.m. to midnight. Plaintiff is responsible for over 100 routes daily and

3 24 employees.

4

151. By contrast, Bowersmith was given a relatively easy management

5 assignment. Bowersmith was made responsible for the Weekend Operation, a 20-hour operation

6 on Saturdays and Sundays. The Weekend Operation involves nine employees, all moving freight

7 from the San Leandro Facility to the Oakland Hub.

8

152. Defendant also discriminated against Plaintiff by failing to provide

9 management support to Plaintiff, making it more difficult for her to perfo rm her job duties.

10 Montez spent little time with Plaintiff, instead focusing his attention on assisting Bowersmith to

11 develop as a manager.

12

153. Despite her lack of support from Defendant, Plaintiff Boykin excelled in

13 her management responsibilities. In her first year as a manager, Plaintiff turned the extremely

14 uncooperative workgroup that she inherited from Mike Kelly, the previous non-Minority

15 manager, into a highly productive group. In that first year, Plaintiff received a Survey Feedback 16 Score (“SFA”) of 97 from her group, and a SFA score of 94 in the second year.3 Moreover,

17 Plaintiff received a leadership average of 4.9 in her first year and one of 4.7 in her second year.

18 Plaintiff also received a commendation from the Senior Vice President for her manageme nt

19 abilities.

20

154. Nevertheless, Defendant took additional steps to undermine her

21 advancement in Defendant’s management ranks. Montez refused to timely perform Plaintiff’s

22 performance reviews, which are essential to pay rate and grade level increases. Plaintiff was

23 scheduled for a 3- month performance review prior to taking a maternity leave. Though Montez

24 timely performed the performance reviews for Bowersmith, he delayed Plaintiff’s review until

25 she returned from her maternity leave. At that time, he gave Plaintiff a three-month review and

26 the two non-Minority managers six- month reviews.

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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1

155. Montez also discriminated against Plaintiff Boykin by providing her with

2 an unreasonably low review of 2.8. Defendant initially attempted to give Plaintiff a rating of 2.5,

3 but Plaintiff rebutted each and every basis for Montez’s grading. Defendant rated Plaintiff below

4 3.0, despite her exemplary performance as reflected in her SFA scores, in order to preclude her

5 from receiving any pay or grade level increases. By contrast, the two non-Minority managers

6 were given higher scores and pay increases. Defendant has routinely delayed Plaintiff’s pay and

7 grade level increases, requiring her to take extra measures in order to receive the same benefits as

8 the two non-Minority managers.

9

156. In March 2001, Defendant continued its discrimination against Plaintiff

10 Boykin by disciplining Plaintiff for a trivial matter for which it has routinely refused to discipline

11 non-Minority employees. Azevedo informed Plaintiff that she had failed to provide for an ad hoc,

12 unscheduled pick-up for an institutional customer. As a result of attempting to assure that the

13 Sacramento route was covered in light of Defendant’s failure to provide her with sufficient RTD

14 Drivers, Plaintiff had inadvertently missed the order. However, the AM Operations Manager with

15 Plaintiff’s responsibilities, had the order picked up the next morning. Since the package was an

16 economy order, there was no failure by Defendant to meet its delivery deadlines.

17

157. As a result of the missed pick up, Montez threatened to give Plaintiff a

18 written warning letter. Defendant ’s standard disciplinary practice is to provide written warning

19 letters only after an employee has committed previous acts deserving discipline. Defendant has

20 not provided documented counseling to non-Minority managers or employees upon their first

21 offense. In response to Plaintiff’s pleas for fairness, Montez indicated that he would give Plaintiff

22 only a verbal warning if she would prepare a corrective action plan to address the oversight.

23

158. Plaintiff submitted the action plans as requested and was informed by

24 District Manager Robin VanGalder and Montez that it was insufficient. Defendant insisted on

25 giving Plaintiff a documented counseling despite earlier assurances that she would only get a

26 verbal warning. Furthermore, VanGalder and Montez informed Plaintiff that she had been guilty

27 of “gross leadership failure” and that she was a bad manager. non-Minority managers have

28 frequently failed to have packages picked up on time; yet, have not been disciplined, much less

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1 given OLCCs or written warnings or accused of “gross leadership failure.”

2

B. Individual Claim for Working Conditions

3

159. Defendant assigned more burdensome job duties and shifts to Plaintiff

4 Boykin than to non-Minority employees, thus making it more difficult for her to perform as well

5 as her non-Minority peers. While a part-time Handler, Defendant discriminated against Plaintiff

6 Boykin on the basis of race by routinely assigning her to work on the busiest conveyor belts, or

7 “slides” as they are called at the Oakland Hub, where thousands of packages are processed. By

8 contrast, many stronger non-Minority employees were permitted to work on less taxing slides

9 where packages numbered in the hundreds, not thousands.

10

160. Defendant discriminated against Plaintiff Boykin after she became a full-

11 time Truck Control Agent by changing Plaintiff’s schedule to the most undesirable shift, 4:00 am

12 to 12:00 pm Tuesday through Saturday. Defendant did not adversely change the hours of any

13 non-Minority emplo yees in Plaintiff Boykin’s workgroup.

14

161. In addition to the foregoing, Plaintiff Boykin has experienced disparate

15 treatment on the basis of race with respect to many employment practices by Defendant.

16

162. Plaintiff Boykin filed a timely charge of discrimination with the EEOC on

17 May 6, 2003, and filed a timely charge with the DFEH in July 31, 2002, attached hereto as

18 Exhibit “I.” Plaintiff Boykin has received Notices of Right to Sue from the EEOC and from the

19 DFEH.

20

FIRST CLAIM FOR RELIEF

21

VIOLATION OF TITLE VII—CLASS CLAIMS

22

163. This claim is brought on behalf of all Plaintiffs and the class of Minority

23 Employees and the class of Minority Lower Managers.

24

164. The class period for the Minority Employee Class for this Claim for Relief

25 is from June 20, 2002 through the date of judgment. The class period for the Minority Lower

26 Manager Class for this Claim for Relief is from July 10, 2002 through the date of judgment.

27

165. Plaintiffs Satchell, Boykin, Brown, Gonzales, Guerrero, Hutchins,

28 Sherman, Smith and Stevenson filed timely charges of discrimination with the Equal Employment

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1 Opportunity Commission, received right to sue letters, and timely filed the instant claim.

2

166. The foregoing conduct violates Title VII of the Civil Rights Act of 1964,

3 42 U.S.C. §§ 2000(e), et seq.

4

A. Disparate Impact

5

167. As to disparate impact, Plaintiffs incorporate by reference the allegations of

6 paragraphs 1 through 31, 33 though 64, 69 through 74, 78 through 98, 103 through 111, 116

7 through 121, 124 through 135, 140 through 158, and 162 through 166, above, as though fully set

8 forth herein.

9

168. Defendant has maintained a system for making decisions about

10 promotions, assignments (as to the Minority Employee Class), compensation, and discipline

11 which is excessively subjective and which has had a disparate impact on Plaintiffs, the Minority

12 Employee Class, and the Lower Management Class. This system cannot be justified by business

13 necessity, but even if it could be so justified, less discriminatory alternatives exist that could

14 equally serve any alleged necessity. Defendant’s policies and practices that have a disparate

15 impact on Plaintiffs and the classes they represent are alleged in paragraph 40 above.

16

169. Defendant’s discriminatory policies and practices as described above have

17 denied Plaintiffs and the classes they represent promotions, desirable job assignments (as to the

18 Minority Employee Class), and compensation to which they were and are entitled; have caused

19 Plaintiffs and the classes they represent to be disciplined when they should not have been,

20 resulting in the loss of past and future wages and other job benefits; and have caused Plaintiffs

21 and the classes they represent to suffer humiliation, embarrassment and emotional distress.

22

B. Disparate Treatment

23

170. As to disparate treatment, Plaintiffs incorporate by reference the allegations

24 of paragraphs 1 through 169, above, as though fully set forth herein.

25

171. Defendant has engaged in a pattern and practice of intentional

26 discrimination against Plaintiffs and the classes in promotions, assignments (as to the Minority

27 Employee Class), compensation, and discipline.

28
285717.1

172.

Plaintiffs request relief as to both their disparate impact and disparate

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1 treatment claims as provided in the Prayer for Relief below.

2 SECOND CLAIM FOR RELIEF
3 VIOLATION OF TITLE VII—NON-CLASS CLAIMS FOR DISPARATE TREATMENT

4
173. Plaintiffs incorporate by reference the allegations of paragraphs 1 through 5
172, above, as though fully set forth herein. This claim is brought on behalf of the named 6
Plaintiffs individually for their non-class claims. 7
174. Defendant intentionally discriminated against named Plaintiffs Brown, 8
Gonzales, Sherman, Smith, Stevenson, Satchell, and Boykin on the basis of their race. 9
175. Defendant subjected named Plaintiffs Brown, Gonzales, Sherman, Smith, 10
Stevenson, Satchell, and Boykin to a racially hostile work environment. 11
176. Defendant intentionally discriminated against Plaintiff Brown by 12
subjecting her to more burdensome work conditions than similarly situated non-Minority 13
employees, subjecting her to harassment, and retaliating against her for filing a discrimination 14
complaint. 15
177. Defendant intentionally discriminated against Plaintiff Gonzales by failing 16
to rehire him from disability. 17
178. Defendant intentionally discriminated against Plaintiff Sherman by 18
subjecting him to more burdensome work conditions than similarly situated non-Minority 19
employees and subjecting him to harassment. 20
179. Defendant intentionally discriminated against Plaintiff Smith by retaliating 21
against him for filing a discrimination complaint and terminating him. 22
180. Defendant intentionally discriminated against Plaintiff Stevenson by 23
subjecting him to harassment. 24
181. Defendant intentionally discriminated against Plaintiff Satchell by 25
retaliating against him for filing a discrimination complaint and terminating him. 26
182. Defendant intentionally discriminated against Plaintiff Boyk in by 27
subjecting her to more burdensome work conditions than similarly situated non-Minority 28

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1 employees.

2

183. Defendant’s discriminatory and retaliatory practices have resulted in the

3 loss of past and future wages and other job benefits, and have caused Plaintiffs to suffer

4 humiliation, embarrassment and emotional distress.

5

184. Plaintiffs request relief as to both their disparate impact and disparate

6 treatment claims as provided in the Prayer for Relief below.

7

THIRD CLAIM FOR RELIEF

8

VIOLATION OF 42 U.S.C. § 1981—CLASS CLAIMS

9

185. Plaintiffs incorporate by reference the allegations of paragraphs 1 through

10 184, above, as though fully set forth herein.

11

186. This claim is brought on behalf of all Plaintiffs and the Minority Employee

12 Class and the Minority Lower Management Class.

13

187. The class period for both the Minority Employee Class and the Minority

14 Lower Management Class for this Claim for Relief is from October 17, 1999 to the date of

15 judgment in this action.

16

188. FedEx Express has engaged in a pattern and practice of intentional

17 discrimination against Plaintiffs and the classes with respect to initial assignments (as to the

18 Minority Employee Class only), promotion, compensation, and discipline.

19

189. The foregoing conduct constitutes illegal intentional discrimination with

20 respect to the making, performance, modification, and termination of contracts prohibited by

21 42 U.S.C. § 1981.

22

190. Plaintiffs request relief as provided in the Prayer for Relief below.

23

FOURTH CLAIM FOR RELIEF

24

VIOLATION OF 42 U.S.C. § 1981—NON-CLASS CLAIMS

25

191. Plaintiffs incorporate the allegations of paragraphs 1 through 190, above,

26 as though full set forth herein.

27

192. This claim is brought on behalf of the named Plaintiffs individually for

28

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1 their non-class claims.

2

193. Defendant intentionally discriminated against named Plaintiffs Brown,

3 Gonzales, Sherman, Smith, Stevenson, Satche ll, and Boykin on the basis of their race.

4

194. Defendant intentionally discriminated against Plaintiff Brown by

5 subjecting her to more burdensome work conditions than similarly situated non-Minority

6 employees, subjecting her to harassment, and retaliating against her for filing a discrimination

7 complaint.

8

195. Defendant intentionally discriminated against Plaintiff Gonzales by failing

9 to rehire him from disability.

10

196. Defendant intentionally discriminated against Plaintiff Sherman by

11 subjecting him to more burdensome work conditions than similarly situated non-Minority

12 employees and subjecting him to harassment.

13

197. Defendant intentionally discriminated against Plaintiff Smith by retaliating

14 against him for filing a discrimination complaint and terminating him.

15

198. Defendant intentionally discriminated against Plaintiff Stevenson by

16 subjecting him to harassment.

17

199. Defendant intentionally discriminated against Plaintiff Satchell by

18 retaliating against him for filing a discrimination complaint and terminating him.

19

200. Defendant intentionally discriminated against Plaintiff Boykin by

20 subjecting her to more burdensome work conditions than similarly situated non-Minority

21 employees.

22

201. Defendant’s discriminatory and retaliatory practices have resulted in the

23 loss of past and future wages and other job benefits, and have caused Plaintiffs to suffer

24 humiliation, embarrassment and emotional distress.

25

202. Plaintiffs request relief as to both their disparate impact and disparate

26 treatment claims as provided in the Prayer for Relief below.

27

28
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1

FIFTH CLAIM FOR RELIEF

VIOLATION OF CALIFORNIA FEHA-CLASS CLAIMS

2 203. This claim is brought on behalf of all members of the classes who are or

3 were employed by Defendant in California and/or who reside in California, including all the

4 named Plaintiffs.

5 204. The class period for the Minority Employee Class for this Claim for Relief

6 is from June 13, 2001 through the date of judgment in this action. The class period for the

7 Minority Lower Manager Class for this Claim for Relief is from July 31, 2001 through the date of

8 judgment in this action.

9 205. Plaintiffs Satchell, Boykin, Brown, Gonzales, Guerrero, Hutchins,

10 Sherman, Smith, and Stevenson filed timely charges of discrimination with the California Fair

11 Employment and Housing, received right to sue letters, and timely filed the instant claim.

12 Plaintiffs have therefore exhausted their administrative remedies and fulfilled all conditions

13 precedent to suit.

14 A. Disparate Impact

15 206. As to disparate impact, Plaintiffs incorporate by reference the allegations of

16 paragraphs 1 through 31, 33 though 64, 69 through 74, 78 through 98, 103 through 111, 116

17 through 121, 124 through 135, 140 through 158, and 162 through 205, above, as though fully set

18 forth herein.

19 207. Defendant has maintained a system for making decisions about

20 promotions, assignments (as to the Minority Employee Class), compensation, and discipline

21 which is excessively subjective and which has had a disparate impact on Plaintiffs, the Minority

22 Employee Class, and the Lower Management Class. This system cannot be justified by business

23 necessity, but even if it could be so justified, less discriminatory alternatives exist that could

24 equally serve any alleged necessity. Defendant’s policies and practices that have a disparate

25 impact on Plaintiffs and the classes they represent are alleged in paragraph 40 above.

26 208. Defendant’s discriminatory policies and practices as described above have

27 denied Plaintiffs and the classes they represent promotions, desirable job assignments (as to the

28

285717.1

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Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 44 of 48

1 Minority Employee Class), and compensation to which they were and are entitled; have caused

2 Plaintiffs and the classes they represent to be disciplined when they should not have been,

3 resulting in the loss of past and future wages and other job benefits; and have caused Plaintiffs

4 and the classes they represent to suffer humiliation, embarrassment and emotional distress.

5

B. Disparate Treatment

6

209. As to disparate treatment, Plaintiffs incorporate by reference the allegations

7 of paragraphs 1 through 208, above, as though fully set forth herein.

8

210. Defendant has engaged in a pattern and practice of intentional

9 discrimination against Plaintiffs and the classes in promotions, assignments (as to the Minority

10 Employee Class), compensation, and discipline.

11

211. The foregoing conduct by Defendant against the named Plaintiffs and

12 members of the classes residing or employed in California violates Section 12940, et seq., of the

13 California Government Code, known as the Fair Employment and Housing Act (“FEHA”).

14

212. As a result of such violations of FEHA, the named Plaintiffs and members

15 of the classes residing or employed in California have suffered the loss of past and future wages

16 and other job benefits, and have suffered humiliation, embarrassment and emotional distress.

17

213. Plaintiffs request relief as to both their disparate impact and disparate

18 treatment claims as provided in the Prayer for Relief below.

19

SIXTH CLAIM FOR RELIEF

20

VIOLATION OF CALIFORNIA FEHA—NON-CLASS CLAIMS

21

214. Plaintiffs incorporate paragraphs incorporate by reference the allegations of

22 paragraphs 1 through 213, above, as though fully set forth herein.

23

215. This claim is brought on behalf of the named Plaintiffs employed and/or

24 residing in California individually for their non-class claims.

25

216. Defendant intentionally discriminated against named Plaintiffs Brown,

26 Gonzales, Sherman, Smith, Stevenson, Satchell, and Boykin on the basis of their race.

27

217. Defendant subjected named Plaintiffs Brown, Gonzales, Sherman, Smith,

28

285717.1

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 45 of 48

1 Stevenson, Satchell, and Boykin to a racially hostile work environment.

2

218. Defendant intentionally discriminated against Plaintiff Brown by

3 subjecting her to more burdensome work conditions than similarly situated non-Minority

4 employees, subjecting her to harassment, and retaliating against her for filing a discrimination

5 complaint.

6

219. Defendant intentionally discriminated against Plaintiff Gonzales by failing

7 to rehire him from disability.

8

220. Defendant intentionally discriminated against Plaintiff Sherman by

9 subjecting him to more burdensome work conditions than similarly situated non-Minority

10 employees and subjecting him to harassment.

11

221. Defendant intentionally discriminated against Plaintiff Smith by retaliating

12 against him for filing a discrimination complaint and terminating him.

13

222. Defendant intentionally discriminated against Plaintiff Stevenson by

14 subjecting him to harassment.

15

223. Defendant intentionally discriminated against Plaintiff Satchell by

16 retaliating against him for filing a discrimination complaint and terminating him.

17

224. Defendant intentionally discriminated against Plaintiff Boykin by

18 subjecting her to more burdensome work conditions than similarly situa ted non-Minority

19 employees.

20

225. 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

226. Plaintiffs request relief as provided in the Prayer for Relief below.

24

RELIEF ALLEGATIONS

25

227. Plaintiffs and the classes they represent have no plain, adequate or

26 complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in

27 this action is the only means of securing complete and adequate relief. Plaintiffs and the classes

28 they represent are now suffering and will continue to suffer irreparable injury from Defendant ’s

285717.1

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 46 of 48

1 discriminatory acts and omissions.

2

228. The actions on the part of Defendant have caused and continue to cause

3 Plaintiffs and the classes substantial losses in earnings, other compensation, desirable job

4 assignments, promotions, and other employment benefits, in an amount to be determined

5 according to proof.

6

229. The actions on the part of Defendant have caused Plaintiffs and the classes

7 to suffer humiliation, embarrassment and emotional distress.

8

230. Defendant acted or failed to act as herein alleged with malice or reckless

9 indifference to the protected rights of Plaintiffs and members of the classes. Plaintiffs and

10 members of the classes are thus entitled to recover punitive damages in an amount to be

11 determined according to proof.

12

PRAYER FOR RELIEF

13

WHEREFORE, Plaintiffs, and the classes, pray for relief as follows:

14

1. Certification of the case as a class action on behalf of the proposed Plaintiff

15 classes, and designation of Plaintiffs as representatives of the classes and their counsel of record

16 as Class Counsel;

17

2. Damages and equitable relief for all harm the individual Plaintiffs and the

18 classes have sustained as a result of Defendant ’s conduct, including back pay, front pay,

19 compensatory damages for emotional distress, and general and special damages for lost

20 compensation and job benefits that they would have received but for the discriminatory practices

21 of Defendant, and punitive damages, according to proof;

22

3. For Plaintiffs’ individual, non-class claims, damages and equitable relief

23 for all harm that Plaintiffs have sustained as a result of Defendant’s conduct, including

24 reinstatement, back pay, front pay, general and specific damages for lost compensation and job

25 benefits they would have received but for the discriminatory practices of Defendant,

26 compensatory damages for emotional distress, and punitive damages, according to proof;

27

4. Exemplary and punitive damages in an amount commensurate with

28 Defendant’s ability to pay and to deter future discriminatory conduct;

285717.1

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 47 of 48

1

5. A preliminary and permanent injunction against Defendant and its

2 directors, officers, owners, agents, successors, employees and representatives, and any and all

3 persons acting in concert with it, from engaging in each of the unlawful practices, policies,

4 customs and usages set forth herein;

5

6. A declaratory judgment that the practices complained of in this complaint

6 are unlawful and violate 42 U.S.C. § 2000(e), et seq., Title VII of the Civil Rights Act of 1964e;

7

7. A declaratory judgment that the practices complained of in this complaint

8 are unlawful and violate 42 U.S.C. § 1981;

9

8. A declaratory judgment that the practices complained of in this complaint

10 are unlawful and violate Section 12940, et seq., of the California Government Code, known as the

11 Fair Employment and Housing Act;

12

9. An order restoring and/or promoting Plaintiffs and the classes to their

13 rightful positions;

14

10. An order assigning Plaintiffs and the classes to those jobs they would now

15 be occupying but for Defendant’s discriminatory practices;

16

11. An order adjusting the wage rates and benefits for Plaintiffs and the classes

17 to that level which Plaintiffs and the classes would be enjoying but for Defendant ’s

18 discriminatory practices;

19

11. Costs incurred, including reasonable attorneys’ fees, to the extent allowable

20 by law;

21

12. Pre-Judgment and Post-Judgment interest, as provided by law; and

22

13. Such other and further legal and equitable relief as this Court deems

23 necessary, just and proper.

24

DEMAND FOR JURY TRIAL

25

Plaintiffs hereby demand a jury trial as provided by Rule 38(a) of the Federal

26 Rules of Civil Procedure.

27

28
285717.1

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43 Filed 11/12/2003 Page 48 of 48

1 Dated: November 12, 2003 2

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

3

By: /s/ James M. Finberg

______

4

James M. Finberg

5

James M. Finberg (SBN 114850)

Bill Lann Lee (SBN 108452)

6

Lexi J. Hazam (SBN 224457)

LIEFF CABRASER HEIMANN &

7

BERNSTEIN, LLP

275 Battery Street, 30th Floor

8

San Francisco, CA 94111-3339

Telephone: (415) 956-1000

9

Facsimile: (415) 956-1008

10 Todd M. Schneider (SBN 158253)
11 Guy B. Wallace (SBN 176151) Sheryl I. Harris (SBN 211494)
12 SCHNEIDER & WALLACE 1700 California Street, Suite 340
13 San Francisco, CA 94109 Telephone: (415) 440-3440
14 Facsimile: (415) 440-3640

Waukeen Q. McCoy (SBN 168228) Kelly Armstrong (SBN 213036) LAW OFFICES OF WAUKEEN Q. MCCOY 703 Market Street, Suite 1407 San Francisco, CA 94103 Telephone: (415) 675-7705 Facsimile: (415) 675-2530

15 John Burris (SBN 69888)

Michael S. Davis (SBN 160045)

Miles Washington (SBN 88288)

LAW OFFICES OF MICHAEL S. DAVIS

16 LAW OFFICES OF JOHN BURRIS

345 Hill Street

7677 Oakport Bldg.

San Francisco, CA 94109

17 Airport Corporate Center, Suite 1120

Telephone: (415) 282-4315

Oakland, CA 94612

Facsimile: (415) 282-4315

18 Telephone: (510) 839-5210

Facsimile: (510) 839-3882

19

Kay McKenzie Parker (SBN 143140)

20 LAW OFFICES OF KAYE MCKENZIE

PARKER

21 1318 East Shaw Avenue, Suite 415

Fresno, CA 93710

22 Telephone: (559) 222-1509

Facsimile: (559) 222-9045

23

Attorneys for Plaintiffs and the Proposed Classes

24

25

26

27

28
285717.1

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CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 1 of 39
EXHIBIT A

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 2 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 3 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 4 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 5 of 39
EXHIBIT B

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 6 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 7 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 8 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 9 of 39
EXHIBIT C

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 10 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 11 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 12 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 13 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 14 of 39
EXHIBIT D

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 15 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 16 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 17 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 18 of 39
EXHIBIT E

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 19 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 20 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 21 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 22 of 39
EXHIBIT F

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 23 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 24 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 25 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 26 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 27 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 28 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 29 of 39
EXHIBIT G

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 30 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 31 of 39
EXHIBIT H

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 32 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 33 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 34 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 35 of 39
EXHIBIT I

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 36 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 37 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 38 of 39

Case 3:03-cv-02878 Document 43-2 Filed 11/12/2003 Page 39 of 39

Case 3:03-cv-02878 Document 43-3 Filed 11/12/2003 Page 1 of 3

1 James M. Finberg (SBN 114850) Bill Lann Lee (SBN 108452)
2 Lexi J. Hazam (SBN 224457) LIEFF, CABRASER, HEIMANN &
3 BERNSTEIN, LLP 275 Battery Street, 30th Floor
4 San Francisco, CA 94111-3339 Telephone: (415) 956-1000
5 Facsimile: (415) 956-1008

6 Todd M. Schneider (SBN 158253) Guy B. Wallace (SBN 176151)
7 Sheryl I. Harris (SBN 211494) SCHNEIDER & WALLACE
8 1700 California Street, Suite 340 San Francisco, CA 94109
9 Telephone: (415) 440-3440 Facsimile: (415) 440-3640
10
11 Waukeen Q. McCoy (SBN 168228)
12 Kelly Armstrong (SBN 213036) 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 Attorneys for Plaintiffs and the Proposed Classes
16

John Burris (SBN 69888) Miles Washington (SBN 88288) LAW OFFICES OF JOHN 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) 282-4315
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 GONZALES,

21

CYNTHIA GUERRERO, RACHEL HUTCHINS, DANIEL SHERMAN,

22

KELVIN SMITH, SR., and KEN STEVENSON, on behalf of themselves

23 and all others similarly situated,

Case No. C 03-2659 SI; C 03-2878 SI
PROOF OF SERVICE BY ELECTRONIC FILING

24

Plaintiffs,

25 v.

26

FEDEX EXPRESS, a Delaware corporation,

27

Defendant.

28

290768.1

PROOF OF SERVICE BY ELECT RONICFILING CASE NO. C 03-2659 SI; C 03-2878 SI

Case 3:03-cv-02878 Document 43-3 Filed 11/12/2003 Page 2 of 3

1

I, Lee Schuring, declare as follows:

2

I am employed in the law firm of Lieff, Cabraser, Heimann & Bernstein, LLP,

3 whose address is Embarcadero Center West, 275 Battery Street, 30th Floor, San Francisco,

4 California 94111-3339. I am readily familiar with the business practices of this office. At the

5 time of transmission I was at least eighteen years of age and not a party to this action.

6

On November 12, 2003, by electronic transmission via United States District Court

7 Northern District of California Electronic Case Filing, I served a copy of the within document(s):

8

1. CONSOLIDATED AMENDED COMPLAINT FOR VIOLATIONS

OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964; 42 U.S.C.

9

§ 1981; CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT;

and 10

2. PROOF OF SERVICE BY ELECTRONIC FILING 11
Service is on the following interested parties in the within action: 12

Waukeen McCoy

13

Kelly Armstrong

John L. Burris Miles Washington

LAW OFFICES OF WAUKEEN Q.

LAW OFFICES OF JOHN L. BURRIS

14

MCCOY

7677 Oakport Street

703 Market Street, Suite 1407

15

San Francisco, CA 94103

Airport Corporate Centre, Ste. 1120 Oakland, CA 94621

16

Barry Goldstein

Todd Schneider

GOLDSTEIN, DEMCHAK, BALLER, Guy Wallace

17

BORGEN & DARDARIEN

SCHNEIDER & WALLACE

300 Lakeside Drive, Suite 1000

18

Oakland, CA 94612

1700 California Street, Suite 340 San Francisco, CA 94109

19

Michael S. Davis

Kay McKenzie Parker

20

LAW OFFICES OF MICHAEL S. DAVIS

MCKENZIE & PARKER 1318 East Shaw Avenue, Suite 415

21

345 Hill Street San Francisco, CA 94114

Fresno, CA 93710

22

Gilmore Diekmann, Jr.

23

Kamili A. Williams SEYFARTH SHAW

24

101 California Street, Ste. 2900 San Francisco, CA 94111

Sandra C. Isom 3620 Hacks Cross Road, Bldg. B, 3rd fl. Memphis, TN 38125-8800

25

David J. Reis

26

George A. Riley O’MELVENY & MYERS LLP

27

275 Battery Street, 26th Floor San Francisco, CA 94111-3344

28

Tom A. Jerman O’MELVENY & MYERS LLP 1625 Eye Street N.W. Washington, DC 20006-4001

290768.1

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Case 3:03-cv-02878 Document 43-3 Filed 11/12/2003 Page 3 of 3

1

I declare under penalty of perjury under the laws of the State of California that the

2 above is true and correct and that this declaration was executed on November 12, 2003.

3

/s/ Lee Schuring

4

Lee Schuring

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

290768.1

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PROOF OF SERVICE BY ELECTRONICFILING CASE NO. C 03-2659 SI; C 03-2878 SI

 
 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

 
 Alvarado v. FedEx Corp., Not Reported in F.Supp.2d (2006)
2006 WL 1761276 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Edward ALVARADO et al., Plaintiffs, v.
FEDEX CORPORATION, Defendant. No. C 04-0098 SI and No. C 04-0099 SI. | Related Case No. C 03-2659 SI. | June 27, 2006.
Named Experts: Craig Pratt, Carlene Young, Stanley Stephenson, David MacPherson Attorneys and Law Firms Kay McKenzie Parker, Law Offices of Kay McKenzie Parker, James M. Finberg, Lieff Cabraser Heimann & Bernstein LLP, Michael S. Davis, Law Offices of Michael S. Davis, San Francisco, CA, for Plaintiffs. Patricia H. Cullison, Francis J. Ortman, III, Gilmore F. Diekmann, Jr., Seyfarth Shaw LLP, San Francisco, CA, Christopher James Yost, Irvine, CA, David A. Billions, T. Robert Reid, Frederick L. Douglas, Memphis, TN, for Defendant. Opinion
ORDER GRANTING DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ UNTIMELY EXPERT DISCLOSURES AND TO PRECLUDE TESTIMONY THEREON
SUSAN ILLSTON, J. *1 This order addresses several motions filed by defendant regarding plaintiffs’ expert disclosures. (Docket Nos. 358 & 360 in 04-0098 SI; Docket Nos. 218 & 222 in 04-0099 SI).1 As explained in this order, the Court GRANTS defendant’s motions as to plaintiffs’ experts Craig Pratt, Carlene Young, Stanley Stephenson and David MacPherson.
DISCUSSION By way of procedural background, the Court notes that pursuant to the case management order filed October 22, 2004, the discovery cut-off in this case was July 29, 2005; the deadline for expert disclosures was October 31, 2005; and the deadline for expert discovery was December 2, 2005. Due to a number of discovery disputes between the parties, some fact discovery took place after July 29, 2005; however, except for the resolution of outstanding discovery disputes, the discovery cut-off was never changed. By letter order filed November 9, 2005, the Special Master, after consultation with the Court, extended the expert disclosure deadline to November 30, 2005, and the deadline for expert discovery to December 30, 2005.
Plaintiffs disclosed four expert witnesses on November 30, 2005: Craig Pratt, Carlene Young, Stanley Stephenson and David MacPherson. Upon receipt of the expert disclosure information from plaintiffs, FedEx noticed expert depositions for the week of December 12, 2005. Plaintiffs objected to the scheduling of these depositions, necessitating a conference with the Special Master. Over defendant’s objections, the Special Master revised the deposition schedule as follows: Stephenson-December 20, 2005; Pratt-December 29, 2005; Young-December 30, 2005, and MacPherson-December 30, 2005. Pursuant to plaintiffs’ request, Mr. Pratt’s deposition was rescheduled to December 30, 2005.
1. Craig Pratt 1

Alvarado v. FedEx Corp., Not Reported in F.Supp.2d (2006)
On November 30, 2005, plaintiffs filed a document entitled “Preliminary Report of Craig E. Pratt, SPHR Human Resources Consultant.” That report states, inter alia, that:
The opinions expressed in this report are based upon my preliminary analysis of the documents listed in Section II, above, that I have had the opportunity to review to date. It is my understanding that discovery in this matter is continuing2 and also that additional documents and reports will be forthcoming. I also intend to complete my review of those deposition transcripts that I will receive pursuant to my requests to counsel for plaintiffs. Accordingly, the opinions described below may be augmented or modified as further information becomes available.
See Docket No. 329, Pratt Report at 5. The “Preliminary Report” also states, under a section titled “Preliminary Opinions” that “[t]o the extent possible given the time constraints within my preliminary analysis, I have reviewed all documents created by or submitted in support of filings by defense counsel for FedEx ... As I continue my review of documents and deposition testimony in the case, I will be looking for....” Id. at 7-8. The only specific plaintiff mentioned in Mr. Pratt’s report is Bertha Duenas, in a single sentence. See id. at 14 (“My preliminary analysis of the materials I have been given relative to Plaintiff Duenas does not reflect that she was a participant in an interactive process using the above-referenced criteria.”).
*2 On December 30, 2005, defendant deposed Mr. Pratt. During that deposition, Mr. Pratt testified, inter alia, that he did not know whether he would submit a supplemental report, and that whether he intended to specifically analyze each plaintiffs’ situation, other than Ms. Duenas, was “going to depend a little bit on my discussions with plaintiff[’s] counsel following up today.” Def’s Supp. Oppo., Ex. B at 69.
On January 2, 2006, plaintiffs filed the Affidavit of Craig Pratt. See Docket No. 353. In the affidavit, Mr. Pratt states:
I have recently had the opportunity to conduct additional analysis of material regarding plaintiff Maria Munoz. These materials included documents related to Ms. Munoz’ case that I received on the morning of November 30, 2005, after my preliminary report had already been prepared and submitted to plaintiffs’ counsel.
Pratt Affidavit ¶ 3. Mr. Pratt proceeds to provide specific opinions regarding “potentially deficient human resource management practices resulting in the termination of Munoz’ employment from FedEx.” See id. at ¶ 3(A)-(C).
Mr. Pratt’s January 2, 2006 affidavit also provides additional opinions regarding plaintiff Charlotte Boswell, based on materials provided to him on November 30, 2005. See id. at ¶ 4. The affidavit states that “applicable human resources management principles may have been ignored in relation to the handling of Boswell’s employment status,” and further that Mr. Pratt “intends to supplement my preliminary expert report to include a discussion of Ms. Bowell’s claims.” Id.
Defendant moves to strike Pratt’s November 30, 2005 expert disclosure as incomplete, and Mr. Pratt’s January 2, 2006 affidavit as improper. Plaintiffs assert that (1) the initial expert disclosure was complete and complied with Rule 26; (2) the January 2, 2006 affidavit did not contain any “new” opinions because the subject matters covered fall within the scope of the initial expert report; (3) defendant will suffer no prejudice; and (4) plaintiffs’ conduct was justified because the summary judgment schedule was repeatedly changed and plaintiffs believed it would have been cost prohibitive to pay Mr. Pratt to conduct an in-depth analysis of each plaintiff’s case without the benefit of the Court’s ruling on the summary judgment motions.
The Court concludes that plaintiffs have violated the Federal Rules, and that Mr. Pratt should not be permitted to testify as an expert in this case. As an initial matter, the Court notes that the expert disclosure and discovery deadlines were extended once. If plaintiffs wished to avoid potentially unnecessary expert witness costs, and believed that they needed the Court’s rulings on the pending summary judgment motions in order to accomplish that goal, plaintiffs could have sought a further extension of these deadlines.3 They did not. Having made the choice not to seek a further extension of these pretrial deadlines, plaintiffs were obligated to comply with these deadlines.
*3 Federal Rule of Civil Procedure 26(a)(2)(B) requires an expert witness to submit a written report that “shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor ....“ (emphasis added). An expert report is to be a detailed and complete statement of the testimony of the expert on direct examination. See Fed.R.Civ.P. 26 Advisory Committee’s Note to 1993 Amendment; Salgado v. General Motors Corp ., 150 F.3d 735, 742 (7th Cir.1998). Rule 37(c)(1) provides that if a party’s expert witness, without substantial justification, fails to disclose such information, then the party
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“shall not, unless such failure is harmless, be permitted to use [such information] as evidence at a trial, at a hearing, or on a motion....”
Despite plaintiffs’ assertions to the contrary, Mr. Pratt’s November 30, 2005 report did not comply with Rule 26. As noted above, Mr. Pratt’s November 30, 2005 report repeatedly acknowledges that it is incomplete and “preliminary.” See Docket No. 329, Pratt Report at 1 & n. 1 (“The Subsequent Version of the Report will deal with factual matters pertinent to each plaintiff including the stated reasons for termination, if any.”); 5 (“opinions expressed in this report are based upon my preliminary analysis”); 7 (“Preliminary Opinions,” “To the extent possible given the time constraints within my preliminary analysis,”); 14 (“My analysis is continuing and I have informed plaintiffs’ counsel that I may make revisions and/or additions to this report.”).
In addition, the preliminary report is so general and lacking in detail that it does not provide a meaningful basis for determining the substance of Mr. Pratt’s expert opinions, nor does it provide a fair basis for expert discovery. The bulk of the “Preliminary Opinions” consists of statements of general human resources principles without any specific application to FedEx. Further, the portions of the report that do mention FedEx are so equivocal as to be virtually meaningless. For example, Mr. Pratt’s report states, “To date, I have not seen discovery materials that provide evidence that FedEx did or did not establish and implement an EEO complaint procedure consistent with these principles.” Id. at 13; see also id. at 10 (“To date, information from the discovery record has not been provided to me to sufficiently establish a basis that FedEx does or doesn’t conform to principles in selection process components of testing and interviewing.”); see also id. at 11 (“To date, I have not seen discovery materials identifying the training received by FedEx managers in EEO or, if applicable, AAP.”).
With respect to the January 2, 2006 affidavit, plaintiffs have utterly failed to provide any justification for why Mr. Pratt filed this affidavit a mere three days after his deposition, setting forth new opinions based on material he had been provided over a month earlier. (Remarkably, the affidavit also states Mr. Pratt’s intention to submit another supplemental report regarding plaintiff Boswell’s claims.) Plaintiffs also provide no explanation for why Mr. Pratt stated at his deposition that he did not know whether he would be providing such a supplemental report, only to submit exactly such a report three days later (following a holiday weekend) .4 The Court will not countenance such gamesmanship.
*4 Plaintiffs contend that any error has been harmless. To the contrary, allowing plaintiffs to proceed with Mr. Pratt would encourage parties to evade the expert-disclosure rules, and would require, at a minimum, that defendant be permitted to re-depose Mr. Pratt. “It would disrupt the orderly process of trial preparation to require a new round of expert reports and a new round of expert depositions. And the Court does not have resources to spare in order to manage cases in which counsel create foreseeable delay through violation of the rules.” Atmel Corp. v. Information Storage Devices Inc., 189 F.R.D. 410, 416 (N.D.Cal.1999) (barring expert testimony when expert submitted inadequate initial report and then attempted to cure deficiencies by submitting rebuttal report and conducting literature search after deposition and after close of expert discovery).
Throughout this litigation, plaintiffs’ counsel have repeatedly displayed a flagrant disregard for the Federal Rules of Civil Procedure and the Local Rules of this Court. The Court will not permit such behavior, and accordingly, the Court GRANTS defendant’s motion to strike Mr. Pratt’s expert designation and STRIKES Mr. Pratt’s January 2, 2006 affidavit. Mr. Pratt shall not be permitted to testify as an expert in this matter. See id. at 416-17; see also Salgado, 150 F.3d at 743 (affirming district court’s exclusion of expert witness due to incomplete, “preliminary” nature of initial report; deficiencies not cured by “supplemental” report based on information available before close of discovery).
2. Carlene Young The history surrounding Ms. Young’s expert disclosure is very similar to that of Mr. Pratt’s report. On November 30, 2005, plaintiffs filed the “Report of Carlene Young.” That report states that Ms. Young was hired to “investigate, review materials and documents, perform psychological assessments, and form an opinion(s) regarding the impact on employees of employment discrimination, retaliation, disparate treatment, unequal discipline, hostile environment, [and] selective and subjective enforcement of policies and procedures.” Docket No. 329, Young Report at 3. The report sets forth several “Preliminary Opinions,” and states, inter alia, that “[p]ending the motions for Summary Judgment by Judge Susan Illston, supplemental information with psychological testing and assessments will be provided in a timely manner for all those employees remaining in the cases.” See Docket No. 329, Young Report at 3. Ms. Young’s report states that she conducted individual interviews with the plaintiffs, and that based upon these interviews, she has reached a number of “preliminary opinions” regarding deficiencies concerning FedEx’s policies, procedures, and environment. Id. at 6-8. The report does not provide any analysis or discussion of any specific plaintiffs.
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Alvarado v. FedEx Corp., Not Reported in F.Supp.2d (2006)
After the resolution of the parties’ dispute regarding scheduling of depositions, described supra, Ms. Young’s deposition proceeded on December 29, 2005. At the beginning of the deposition, plaintiffs’ counsel produced for the first time Ms. Young’s 10 page “Supplemental Report” setting forth an “additional basis for preliminary opinions,” consisting of 16 additional documents and 15 additional interviews that Ms. Young conducted with plaintiffs. See Docket No. 3 51-2 at 3 -4. Of the 16 additional documents reviewed, 15 are depositions or pleadings that were all available well before the expert disclosure deadline of November 30, 2005; it is unclear when the final document, the Report of Edward J. Hyman, was prepared.5 Of the 15 plaintiff interviews listed in the supplemental report, 9 occurred between November 28, 2005-November 30, 2005; 2 occurred on December 19, 2005; 3 occurred on December 26, 2005; and 1 occurred on December 27, 2005.
*5 Ms. Young’s supplemental report provides, for the first time, “Summary Opinions for Employees.” The following excerpt is typical of Ms. Young’s “Summary Opinions”:
EDWARD ALVARADO-Latino Male (Retaliation/Harassment) Currently working at FedEx-since 1994
Mr. Alvarado feels like management (Aaron Hoelstein, Craig Diggle, Robert Motter and Gary Meek) have tried and are still trying to destroy his physical health, to humiliate him, and debilitate him to the point where he is not able to work and thereby force him to resign. They deliberately put him on a split shift to aggravate his health conditions and act intentionally with knowledge of his prostate cancer and high blood pressure by giving him the hardest jobs. This all started after he testified for Gary White at the DFEH.
Opinion-Depression-nightmares; sleep disturbance; emotional distress; anxiety; physical pain, loss of enjoyment of life; loss of income, humiliation.
Id. at 5. Ms. Young’s Supplemental Report provides “Summary Opinions” of similar length and depth of detail for 12 other plaintiffs.6
Defendant states, and plaintiffs do not deny, that prior to Ms. Young’s deposition, plaintiffs did not contact defendant and alert FedEx to the fact that Ms. Young would be submitting a supplemental report. Defendant also asserts, and plaintiffs provide no response whatsoever on this point, that at Ms. Young’s deposition, Ms. Young failed to produce any documents from her file in this case; at the deposition, Ms. Young and her counsel stated that they had not seen the Notice of Deposition and Request for Production of Documents which required Ms. Young to produce all documents that she relied upon in formulating her opinions. According to defendant’s reply brief, as of January 27, 2006, plaintiffs still had not produced any documents contained in Ms. Young’s file concerning this matter.
Plaintiffs raise all of the same arguments with respect to Ms. Young as they did with respect to Mr. Pratt. For the reasons described supra, these contentions lack merit. Moreover, the Court finds it inexcusable that plaintiffs failed to provide any advance notice whatsoever to defendant’s counsel of the fact that Ms. Young would be submitting a substantive supplemental report on the day of her deposition. The Court finds that defendant would be prejudiced by allowing Ms. Young to testify, and that plaintiffs have failed to provide sufficient justification for the incomplete initial report, or for the supplemental report. Accordingly, the Court GRANTS defendant’s motion to strike Ms. Young’s expert designation.
3. Stanley Stephenson and David MacPherson On November 30, 2005, plaintiffs filed economic loss analyses prepared by Messrs. Stephenson and MacPherson for each of the plaintiffs. Each economic loss analysis contains the following “DISCLAIMER:”
DISCLAIMER: In this report we have approximated economic damages to plaintiff minority members arising from defendant’s failure to promote them as readily as white employees because we do not have employment records showing the promotion histories of all FedEx employees in the Western Region during the period January 1, 1999 through February 5, 2004. Our references to Dr. Richard Drogin’s report do not replace the need to obtain these employment records. Once this data is made available, any assumptions made herein based directly or indirectly on Dr. Drogin’s data will no longer be required. In the final version of our report done independently with this data, we will not reference Dr. Drogin’s report as forming any basis for our opinion. The same lack of data also prevents our final analyses of differential disciplinary actions, test score differentials, performance ratings and other factors likely to impact wages and hours of the plaintiffs as a minority group compared to non-minority
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employees.
*6 Docket No. 329-2 at 1. On December 23, 2005, the Court issued an order which stated, inter alia, that because the plaintiffs in this case and case No. 04-0099 SI had not designated Dr. Drogin as an expert, “they cannot seek to use Dr. Drogin’s report in any fashion.”7
During Mr. MacPherson’s deposition on December 30, 2005, plaintiffs’ counsel produced revised economic loss analyses for each plaintiff. The revised economic loss analyses do not reference or rely on Dr. Drogin’s report; Dr. Drogin’s report has been deleted from the “References Read or Used in Forming Opinions” section of each report, and a new reference has been added, “U.S. Social Security Administration, 2005 Social Securities Trustees Report, Table II.C.I. Intermediate Forecast of Real Wage Growth.” Docket No. 350-2 at 7. The revised analyses no longer contain the “DISCLAIMER,” but do include the following language:
The economic loss analysis included in this report is preliminary and likely to understate measured damages because it does [not?] account for racial differentials in rates of promotion. Until detailed individual work histories on all FedEx Western Region employees for the period 1999 to 2004 are obtained and analyzed we are unable to measure the degree of this underestimate.
Id. at 6.
For every plaintiff, the economic loss figures contained in the initial economic loss analyses differ from those contained in the revised analyses, often significantly so. The most extreme example is that of plaintiff Kevin Neely. The initial loss analysis estimated economic damages at $54,384, while the revised analysis estimated those damages at $3,967,846. Similarly, the initial analysis for plaintiff Pernell Evans stated an economic loss of $38,030, while in the revised analysis his economic loss was estimated at $1,920,066.
Plaintiffs attempt to justify the revised economic loss analyses on the same grounds that have been rejected supra. Plaintiffs also contend that the revised analyses were justified because of this Court’s December 23, 2005 order precluding plaintiffs from relying on Dr. Drogin’s report. Plaintiffs’ argument lacks merit for several reasons. First, in the initial analyses Messrs. Stephenson and MacPherson explicitly stated that they did not intend to rely on Dr. Drogin’s report for their “final” conclusions, and that the economic loss analyses should only be considered “preliminary.” Accordingly, it appears that plaintiffs always intended to revise these reports to eliminate any reliance on Dr. Drogin’s report.
Second, both the initial and revised analyses state that both versions are preliminary and incomplete because they do not take account of “employment records showing the promotion histories of all FedEx employees in the Western Region during the period January 1, 1999 through February 5, 2004.” Docket No. 329-2 at 1 (initial report); see also Docket No. 350-2 at 6 (revised report). Thus, even accepting plaintiffs’ assertion that they were “forced” to revise these analyses as a result of the Court’s December 23, 2005 order (an assertion belied by the record), even plaintiffs’ revised economic loss analyses are “preliminary” in violation of Rule 26.
*7 Finally, although it is unclear what, precisely, constitutes the “complete” employment records and work histories that Messrs. Stephenson and MacPherson state are lacking, based upon the history of discovery in this case, it appears that plaintiffs do not-and will never-have this data. The Court notes that plaintiffs unsuccessfully sought “complete,” District-wide data before the Special Master, and then from this Court. In a detailed decision issued December 16, 2005, the Special Master denied plaintiffs’ motion to compel production of such information. See Docket No. 3 37. Plaintiffs then sought review of the Special Master’s decision in this Court. By order filed January 5, 2006, the Court denied plaintiffs’ objections to the Special Master’s decision. See Docket No. 356.
In sum, plaintiffs’ excuses for revising the economic loss analyses ring hollow. The initial economic loss analyses make clear that plaintiffs always intended to revise the analyses to exclude any reliance on Dr. Drogin’s report; this Court’s December 23, 2005 order only prompted plaintiffs to do this sooner rather than later. Even plaintiffs’ revised loss analyses are, by their very terms, “preliminary,” and the data necessary to make them “final” is not forthcoming. Accordingly, the Court GRANTS defendant’s motion to strike and precludes Messrs. Stephenson and MacPherson from testifying at trial.
IT IS SO ORDERED.
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Alvarado v. FedEx Corp., Not Reported in F.Supp.2d (2006)

Footnotes

1

The same expert reports were filed in both cases. For the sake of simplicity, when referring to the expert reports and other

pleadings, this Order cites the docket numbers of 04-0098 SI.

2

As noted above, the discovery cut-off in this case was July 29, 2005, and by November 30, 2005, virtually all discovery disputes

had been resolved.

3

The Court further notes that the summary judgment motions were repeatedly rescheduled, in large part due to ongoing discovery

disputes between the parties. As a result, in this case and the related action White et al. v. FedEx, 04-0099 SI, fifteen motions for

summary judgment were argued and submitted in October and November 2005.

4

The Court notes that Mr. Pratt’s deposition was taken on Friday, December 30, 2005, and that his affidavit was filed on Monday,

January 2, 2006.

5

For example, Ms. Young’s supplemental report states that she reviewed Docket Nos. 284 and 285 (both filed October 5, 2005);

Docket No. 295 (filed October 17, 2005); and Docket No. 305 (filed October 19, 2005).

6

On December 30, 2005, plaintiffs also filed the “Affidavit of Carlene Young, Psychologist.” See Docket No. 352. That affidavit

references the fact that Ms. Young submitted a supplemental expert report, and states that she was prepared to discuss all of her

opinions, including those contained in the supplemental report, at her deposition.

7

In that order, the Court granted plaintiffs’ motion to quash defendant’s subpoena of Dr. Drogin. The Court noted that plaintiffs

unfairly sought to prevent defendant from taking Dr. Drogin’s deposition while at the same time using his report as a basis for their

experts’ analysis. See Docket No. 346.

6