Case 3:13-cv-01030-CAB-KSC Document 38-2 Filed 08/04/14 PageID.

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CHAD T. WISHCHUK, SBN 214779

cwis hch u k@rnarksfinch.com
1 LAURA B. MACNEEL, SBN 251540
I rn acne el@rnarksfinch.com
2 MARKS, FINCH, THORNTON & BAIRD, LLP
ATTORNEYS AT LAW
3 4747 EXECUTIVE DRIVE - SUITE 700

SAN DIEGO, CALIFORNIA 92121-3107

4 TELEPHONE: (858) 737-3100
FACSIMILE: (858) 737-3101
5
6 Attorneys for Plaintiff Richard Kerrigan

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA
10 RICHARD KERRIGAN, an CASE NO: 3:13-cv-01030-CAB-KSC
individual,
11 DECLARATION OF RICHARD
Plaintiff, KERRIGAN IN OPPOSITION TO
12 DEFENDANT'S MOTION FOR
v. SUMMARY JUDGMENT
13
FEDEX CORPORATE SERVICES,
14 INC., DBA FEDEX SERVICES, a
Delaware corporation, and
15 DOES 1 through 20,
16 Defendants.
17

18 I, Richard Kerrigan, declare as follows:

19 1. All facts testified to are within my personal knowledge and, if called
20 as a witness, I could competently testify to them.
21 2. I was born on November 20, 1951, and am 62 years old.
22 3. From 1982 until 2012, I was employed by FedEx Corporate
23 Services, Inc. and its predecessors. ("FedEx.")
24 / / / / /

25 / / / / /

26 / / / / /

27 1
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Exhibit 1
Drive - Suite 700
San Diego, CA 92121
Case No. 3:13-cv-01030-CAB-KSC
(858) 737-3100
000001
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1 4. A copy of my resume is attached to Plaintiff Richard Kerrigan's

2 Opposition To Defendant Fedex's Motion For Summary Judgment Or In The
3 Alternative Partial Summary Judgment ("Opposition") as Exhibit 14, reflecting
4 my work experience and qualifications prior to the time I was promoted to
5 FedEx's San Diego district sales manager.
6 5. I received annual written performance reviews throughout my long
7 career at FedEx, and they were always positive. Copies of my performance
8 reviews from 2005 through 2008, and 2010 through 2012 are attached to the
9 Opposition as Exhibits 15 through 21. I understand that a copy of my 2009
10 written review has not yet been provided to me.
11 6. While at FedEx, I won the following performance awards: the Five
12 Star Award for growing sales traffic from 45 percent to 90 percent in less than six
13 months; the Hall of Fame AGFS Manager Award; and the President's Club
14 Award on three separate occasions.
15 7. In approximately 2002, I was promoted to the position of Major
16 Accounts Sales Manager, which later became known as District Sales Manager
17 ("DSM") for the North San Diego district. I received regular raises, and by 2012,
18 earned an annual salary of$132,600.00, plus annual performance bonuses that
19 reached as much as $15,000.00.
20 8. As DSM, I was in charge of the entire North San Diego sales district
21 and supervised 12 sales professionals. The North San Diego sales district
22 generated approximately $500 million per year.
23 9. The North San Diego district is part ofFedEx's Desert Pacific
24 Region, which is supervised by a managing director of sales. James Collier held
25 that position from approximately 2006 through my termination. I reported
26 / / / / /
27 2
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
San Diego, CA 92121
Case No. 3:13-cv-Ol030-CAB-KSC
Exhibit 1
(858) 737-3100
000002
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1 directly to Collier and he was my direct supervisor. Collier likewise supervised

2 the other eight sales districts and DSMs in the Desert Pacific Region.
3 10. The Desert Pacific Region is part ofFedEx's larger Western Region.
4 At all times during my tenure as DSMfor the North San Diego district, the
5 Western Region was supervised by Richard Cocuzzo, Vice President of Sales for
6 the Western Region. Cocuzzo was Collier's direct supervisor and regularly
7 interacted with and supervised DSMs.
8 11. Collier and Cocuzzo regularly made me the butt of jokes and
9 belittled me for being old and perceived as disabled.
10 12. For example, almost whenever I interacted with Cocuzzo, he went
11 out of his way to call me "old school" or to make a sarcastic reference about my
12 age at F edEx.
13 13. Between January and July 2012, I interacted with Cocuzzo at least
14 five times - at three customer events and two sales manager meetings. In each
15 instance, and in front of other members of FedEx sales teams, Cocuzzo
16 negatively targeted me for my age by making statements such as "Rick did this
17 stuffbefore we even had computers .... " and "Rick's been around long enough to
18 know .... " Cocuzzo never made such age-related disparagements to any other
19 DSMs.
20 14. Collier likewise made many derogatory comments about my age and
21 perceived disability.
22 15. For example, he called me "old school" on several occasions. On
23 another occasion at the end of 20 12, he commented about my decision not to
24 drink an alcoholic beverage during a work-related dinner by saying something to
25 the effect of, "I guess you old guys can't handle the hangovers."
26 / / / / /
27 3
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
San Diego, CA 92121
Case No. 3:13-cv-Ol030-CAB-KSC
Exhibit 1
(858) 737-3100
000003
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1 16. In 2012, prior to my termination, Collier said that FedEx needed to

2 get "new blood" into the sales department. I heard him say this at least five to
3 ten times in 2012. For example, Collier said "new blood" often during our
4 weekly regional conference calls and at a work-related concert event in San
5 Diego. Just a few days before my termination, during my performance review
6 with Collier, he used this phrase "new blood" in reference to personnel decisions
7 he wanted to make in my FedEx district.
8 17. Collier also often mocked my age during our weekly conference
9 calls with the DSMs in the Desert Pacific Region. For example, Collier would
10 sarcastically and degradingly say words to the effect of "Rick, get someone to
11 show you how to use a computer," or "Rick, you know how to use the mute
12 button on the phone, right." I never heard Collier make similar jabs at any of the
13 younger DSMs.
14 18. Collier would likewise encourage others to insult me about being too
15 old and disabled. This occurred during the times I was required to wear a
16 medical boot to work while an infection relating to my diabetes healed. On
17 multiple occasions, another DSM called me "gimpy," and Collier heard the
18 comment and stood there and laughed. Once, a DSM derisively asked me,
19 "When are you getting the Frankenstein boot off," and Collier looked on and
20 laughed out loud at me.
21 19. In 2012, I was repeatedly referred to as "old timer" at DSM
22 meetings, and Collier did nothing to stop this. To the contrary, he mockingly
23 laughed whenever it occurred. At one meeting, while the team reviewed a
24 computer spreadsheet from the well-known computer application called "Excel,"
25 / / / / /

26 / / / / /

27 4
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
San Diego, CA 92121 Case No. 3: 13-cv-Ol030-CAB-KSC
Exhibit 1
(858) 737-3100
000004
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a DSM made fun of my age by sarcastically saying, "Rick, you've probably

2 never heard of Excel." Collier and other DSMs laughed out loud at this in front
3 of me.
4 20. To my knowledge, neither Collier nor any of his DSMs were ever
5 disciplined or even warned about their ageist and other derogatory comments or
6 conduct to me.
7 21. In addition to the above statements and conduct, Cocuzzo and
8 Collier further showed their contempt for older persons and persons with
9 perceived disabilities by giving preferences in assignments and job opportunities
10 to younger workers. This took the form of since 2002 never offering me the
11 ability to participate in special projects, such as pricing focus groups or
12 leadership training seminars. Such projects were utilized by FedEx to groom
13 employees for promotions. Despite my repeated requests to Collier and Cocuzzo
14 to participate in these special projects, Collier and Cocuzzo denied me the ability
15 to attend, instead assigning younger DSMs, such as Shannon Duncan (43 years
16 old) and Tim Chaplin (41 years old).
17 22. Further evidence of Collier's age bias is reflected in his treatment of
18 other sixty-plus year olds. During my time as a FedEx DSM, I supervised two
19 account executives named Luis Diaz and James McDowell. In 2012, Diaz was
20 approximately 67 years old and McDowell was approximately 62 years old.
21 23. In late 2011 or early 2012, Collier approached me and directed me
22 to fire them both. He said Diaz was "too old; he'll never get it, and I want him
23 gone." He made similar statements about McDowell. He told me that Diaz and
24 McDowell were "from a different era" and have "never gotten what the new
25 FedEx is about." He said that he wanted to get these two "wrong people off the
26 bus," and replace them with "new blood."
27 5
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
San Diego, CA 92121 Case No. 3: 13-cv-Ol030-CAB-KSC
Exhibit 1
(858) 737-3100
000005
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1 24. From these statements, I concluded that Collier was illegally

2 targeting them, at least in part, because of their age. I communicated to Collier I
3 would not fire them without adequate justification, including because such action
4 would violate FedEx's Progressive Corrective Action Policy. A copy of this
5 policy is attached to the Opposition as Exhibit 42. I believed there were
6 insufficient performance-related reasons to justify their termination at that time.
7 Collier grunted, "I want them gone." I refused to terminate them.
8 25. In approximately mid-2011, FedEx increased compensation for all
9 new hires in the San Diego metropolitan area. This was called a "market pay"
10 increase. Existing employees were denied any increase, and this negativity
11 impacted older workers, like me. I raised this issue with my boss and he told me
12 not to ask about it anymore.
13 26. In about 2000, I was diagnosed with Type II Diabetes. In September
14 2010, I developed a staph infection on my right foot as a complication of my
15 diabetes. As a result, I had an operation and spent four days and nights in the
16 hospital. After being discharged from the hospital, I took an additional five
17 works days off to recover from the operation. Upon my return to work, I was
18 required to wear a medical boot on my foot for approximately six months. The
19 medical boot was large and black, from my knee level to my toes. It forced me to
20 walk with a noticeable limp.
21 27. In around January 2011, the staph infection worsened, requiring
22 another surgery. I spent another four days in the hospital and I missed another
23 week of work. Collier knew about my condition in both instances, as it was
24 obvious, and as I presented him with a written letter from my doctor. A copy of
25 this letter is attached to the Opposition as Exhibit 41.
26 / / / / /
27 6
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
San Diego, CA 92121
Case No. 3:13-cv-Ol030-CAB-KSC
Exhibit 1
(858) 737-3100
000006
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1 28. In late November 2011, I was hospitalized as a result of what I

2 believe to be more complications of my diabetes. I missed another week or so of
3 work, but recovered completely.
4 29. Almost immediately upon my return to work in December 2011,
5 Collier was noticeably more abrasive towards me, began excessively micro-
6 managing me, and usurping what previously had been my independent decisions
7 as a DSM. For example, whereas I had always had nearly unfettered freedom
8 and discretion over important decisions including personnel decisions relating to
9 my account executives, Collier around this time began telling me which
10 employees to discipline and how to discipline them. This included demands that
11 I provide him with drafts of disciplinary letters before sending them to
12 employees. Collier had never acted this way in my prior years at FedEx. Collier
13 also began emailing and contacting me more frequently with supposed questions
14 about employees and accounts that I oversaw. He had never done this before.
15 30. In late June 2012, just days before I was terminated Collier gave me
16 my annual in-person performance review. Unbelievably, he failed to mention
17 anything whatsoever about any policy violation he thought I had committed or
18 my imminent termination on July 2,2012. The circumstances of my termination
19 are described below. On the day that Collier terminated me, he initially refused
20 to give me a reason for the termination and said: "I am not at liberty to say."
21 31. Since the beginning of, and throughout my career at FedEx, a
22 nonrevenue account was assigned to me, as well as to other DSMs and other
23 FedEx management personnel, to allow us to do our jobs and assist customers,
24 especially to incur various charges for shipping and freight. I and other DSMs
25 used our nonrevenue account to allow customers to ship business envelopes and
26 / / / / /

27 7
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
Case No.3: 13-cv-Ol 030-CAB-KSC
Exhibit 1
San Diego, CA 92121
(858) 737 -3100

000007
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1 packages free of charge. This was consistent with FedEx's Purple Promise which
2 is FedEx's customer service policy. A copy ofFedEx's Q&A explaining The
3 Purple Promise is attached to the Opposition as Exhibit 43. This document was
4 printed from FedEx's website (http://www.fedex.com/purplepromise/en/
5 materials/qa.pdf) on or about June 20,2014. The use of nonrevenue business
6 shipping to fulfill the Purple Promise at FedEx was always and through the end
7 of my employment remained a common practice among DSMs and other
8 management personnel.
9 32. FedEx did not pay itself for these nonrevenue shipping and freight
10 services, but the amounts were tracked on internal FedEx documents called
11 Budget Variance Reports ("BVRs"). The BVRs compile not just shipping freight
12 charges, but all operating expenses of each district. These operating expenses
13 include various items including employees' salaries, insurance, rent, utilities, and
14 postage and shipping charges.
15 33. BVRs were created and available monthly, as well as annually, for
16 each sales district.
17 34. During my employment at FedEx, I regularly reviewed BVRs for
18 my district and occasionally reviewed BVRs for other districts as well.
19 35. BVRs were generated for each district manager for each month, with
20 a yearly summary BVR generated each fiscal year. FedEx's fiscal year was June
21 1 through May 3 1.
22 36. Copies ofBVR reports that FedEx produced during discovery in
23 this action are attached to the Opposition as Exhibits 44 through 49, 56, and 57.
24 Exhibits 44 through 46 are my district's BVRs for fiscal year 2010 through fiscal
25 year 2012. Exhibits 47 through 49 are BVRs for Tim Chaplin's district for the
26 same fiscal years. As these BVRs clearly illustrate, I used my nonrevenue
27 8
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
Case No_ 3:13-cv-01030-CAB-KSC
San Diego, CA 92121
(858) 737-3100 Exhibit 1
000008
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1 account for postage freight liberally over the years, and yet my usage paled in
2 comparison to Mr. Chaplin's. Exhibit 50 is a summary of the BVRs contained in
3 Exhibits 44 through 49.
4 37. I was never disciplined, or even verbally warned, for my nonrevenue
5 business shipping this activity over the years, as it was encouraged by FedEx and
6 part of the culture of satisfying customers under FedEx's Purple Promise.
7 38. Exhibit 56 contains annual BVRs for various other DSMs during
8 FedEx's fiscal years 2010-2012, with the postage freight amounts that exceeded
9 $1,000 per month highlighted.
10 39. Exhibit 57 contains additional examples of monthly and annual
11 BVRs for various DSMS during Fed Ex's fiscal years 2009-2013, with postage
12 freight amounts that exceeded $1,000 per month highlighted.
13 40. Exhibit 55 contains a summary of the BVRs contained in Exhibit 56
14 and 57.
15 41. Exhibit 59 contains annual BVRs for the Western Region for
16 FedEx's fiscal years 2010 through 2012. As these BVRs show, nonrevenue
17 business shipping routinely reached into the hundreds of thousands of dollars. It
18 was part of the culture at FedEx.
19 42. Nonrevenue account activity in the form of postage freight was
20 additionally documented by FedEx in the form of detailed invoices describing
21 each particular shipment. Copies of some examples of these backup invoices and
22 a FedEx spreadsheet summarizing nonrevenue account activity that FedEx
23 produced during discovery in this action are attached to the Opposition as
24 Exhibits 51 through 53, 54, and 58. Exhibits 51 through 53 are backup invoices
25 for Chaplin's nonrevenue postage freight during FedEx's fiscal years 2010-2012.
26 Exhibit 54 is a spreadsheet that FedEx produced of the nonrevenue account
27 9
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MARKS, FINCH,
. DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
Case No. 3: 13-cv-Ol030-CAB-KSC
San Diego, CA 92121
(858) 737-3100
Exhibit 1
000009
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1 activity for some of the DSM's accounts for 2012 through 2014. Exhibit 58
2 contains backup invoices for postage freight nonrevenue activity for various
3 other DSMs- in the Western Region during fiscal years 2009-2013. These backup
4 invoices clearly show the non-FedEx senders and recipients of the nonrevenue
5 shipments, thereby refuting FedEx's defense that all nonrevenue shipping was
6 merely internal FedEx or to/from FedEx shipping.
7 43. Collier himself admitted in writing that FedEx nonrevenue account
8 usage was done to satisfy customers. For example, on or about June 24, 2008,
9 Collier sent an email to all DSMs in the Desert Pacific Region, including me,
10 acknowledging this. A copy of this email, which, FedEx produced during
11 discovery in this action, is attached to the Opposition as Exhibit 33.
12 44. I responded to Collier's email above by stating I had used the
13 nonrevenue number to diffuse customer situations. Collier did not discipline me
14 for this at any time or tell me to stop it. To the contrary, he said it was "not that
15 big a deal." A copy of this email exchange which FedEx produced during
16 discovery in this action is attached to the Opposition as Exhibit 34. A copy of a
17 similar email exchange between Collier and another DSM, Ryan Fisher, which
18 F edEx produced in this action is attached to the Opposition as Exhibit 31. Collier
19 acknowledges the substantial nonrevenue shipping use by a DSM, and says: "stay
20 the course."
21 45. During my employment at FedEx, I frequently communicated with
22 other DSMs in the Western Region. This was especially true with respect to
23 DSMs in the Desert Pacific Region, who were also supervised by Collier. For
24 example, Collier myself and the other DSMs Collier supervised participated in
25 weekly conference calls.
26 / / / / /
27 10
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
Case No. 3:13-cv-Ol030-CAB-KSC
San Diego, CA 92121
(858) 737 -3100 Exhibit 1
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1 46. Tim Chaplin was the DSM for the FedEx sales district based in Las
2 Vegas during at least the last three years of my employment at FedEx. He was
3 also supervised by Collier and we were co-participants in the weekly conference
4 calls with Collier. I also met personally with Chaplin on multiple occasions.
5 47. Chaplin regularly used his nonrevenue account number for customer
6 satisfaction purposes, and I have known this for a long time because he told me.
7 He likewise told this to Collier and other DSMs during our weekly conference
8 calls. He said he used his nonrevenue account to allow disgruntled customers to
9 ship packages without charging them. He said he did this on many occasions.
10 As previously notes, FedEx BVRs and back-up invoices confirm this, and are
11 attached to the Opposition at Exhibits 47 through 49 and 51 through 53.
12 48. Chaplin was approximately 41 years old when I was terminated. I
13 am informed that after F edEx terminated me, F edEx promoted Chaplin to a
14 Managing Director position in Washington D.C.
15 49. Ryan Fisher, another DSM in the Desert Pacific Region under
16 Collier's supervision, also stated during weekly conference calls with Collier and
17 me that he used his nonrevenue account on more than one occasion to allow
18 disgruntled customers to ship packages without charging them. FedEx BVRs and
19 back-up documentation confirm this, and are attached at Exhibits 56, 57, and 58.
20 Ryan Fisher was approximately 39 years old when I was terminated.
21 50. Kim Nelson was another DSM in the Desert Pacific Region under
22 Collier's supervision. He also stated during our weekly conference calls with
23 Collier that he used his nonrevenue account on more than one occasion to allow
24 disgruntled customers to ship packages without charging them.
25 51. Ron Gonsalves, a DSM in the Western Region, also told me that he
26 used his nonrevenue account on more than one occasion to allow disgruntled
27 11
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
Case No. 3: 13-cv-0l030-CAB-KSC
San Diego, CA 92121
(858) 737 -3100 Exhibit 1
000011
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1 customers to ship packages without charging them. FedEx BVRs and back-up
2 documentation confirms this, and are attached at Exhibits 54, 57, and 58. Ron
3 Gonsalves was in his 40s when I was terminated.
4 52. Ben Williamson, a DSM in the Western Region, also told me that he
5 used his nonrevenue account on more than one occasion to allow disgruntled
6 customers to ship packages without charging them. FedEx BVRs and back-up
7 documentation confirms this, and are attached at Exhibits 54, 57, and 58. Ben
8 Williamson was in his 40s when I was terminated.
9 53. Theresa Rubinoff, a DSM in the Western Region, also told me that
10 she used her nonrevenue account on more than one occasion to allow disgruntled
11 customers to ship packages without charging them. FedEx BVRs and back-up
12 documentation confirms this, and are attached at Exhibits 54 and 57. Theresa
13 Rubinoff was in her 40s when I was terminated.
14 54. Chris Baugh, a DSM in the Western Region, also told me that he
15 used his nonrevenue account on more than one occasion to allow disgruntled
16 customers to ship packages without charging them. FedEx BVRs and back-up
17 documentation confirms this, and are attached at Exhibits 54 and 57. Chris
18 Baugh was in his 40s when I was terminated.
19 55. Tom Prucha held the position ofDSM for the North San Diego
20 district immediately before me, and has since been promoted to Regional
21 Director for the Mountain West Region. Prucha told me that he used his
22 nonrevenue account to allow customers to ship packages without charging them.
23 Prucha was at least 10-15 years younger than me at the time of my termination.
24 56. In about 2011, Vet Stem, a FedEx customer in the North San Diego
25 district, was victimized by computer fraud and its FedEx shipping account
26 number was stolen.
27 12
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
Case No. 3: 13-cv-Ol030-CAB-KSC
San Diego, CA 92121
(858) 737-3100
Exhibit 1
000012
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57. In response to Vet Stem's request to correct this issue, FedEx issued
2 Vet Stem a new account number.
3 58. To make sure that Vet Stem's customers received Vet Stem's new
4 FedEx account number, in about February 2012, FedEx caused a letter and five
5 labels with VetStem's new account number to be sent to each of Vet Stem's
6 customers totaling about 523 in number. Throughout my employment at FedEx,
7 FedEx routinely provided free shipping and supplies like this to its customers
8 and, as described above, DSMs and other FedEx personnel regularly "comp'ed"
9 shipping in this manner to fulfill "The Purple Promise" customer satisfaction
10 policy and to save business.
11 59. This Vet Stem bulk endeavor should have been recorded as
12 approximately $2,500-$3,500 in postage freight on my BVR. However, as a
13 result of a computer glitch in FedEx's bulk shipping process, this recorded as
14 about $10,000.00 under the postage freight portion of my BVR for February
15 2012.
16 60. I told Collier about the pricing error on multiple occasions between
17 February 2012 and my termination. I tried to have the invoicing error corrected,
18 but FedEx refused to change it. A copy of an email exchange between my
19 assistant Paola Schick, myself, and another FedEx employee in this regard is
20 attached to the Opposition as Exhibit 40.
21 61. I spoke with or corresponded via email with Collier approximately
22 ten times about the VetStem issue between January 2012 and Apri12012. Copies
23 of some emails between Collier and myself in this regard are attached to the
24 Opposition as Exhibits 28 and 29. A copy of an email between myself and
25 Collier's assistant is attached to the Opposition as Exhibit 30.
26 / / / / /
27 13
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MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
Case No. 3:13-cv-Ol030-CAB-KSC
San Diego, CA 92121
(858) 737-3100 Exhibit 1
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1 62. In February 2012, Sue Watson (an employee in FedEx's solutions

2 department) and I explained the VetStem issues and our proposed solution to
3 Collier. During this meeting, I indicated to Collier that we were using bulk
4 labels, but that there was a problem with billing and it was coming out higher
5 than expected. In response, Collier told me to just "make it go away" and "get it
6 done."
7 63. After I talked with Collier in February 2012, he talked to Mike Dale
8 at VetStem. Following his conversation with Mike Dale, Collier told me
9 something to the effect of "I think we'll be okay," and reiterated his desire to
10 have me "make it go away."
11 64. Paula Schick, my administrative assistant for many years at FedEx,
12 previously offered to testify on my behalf regarding her involvement with the
13 VetS tern issues. She also told me she would testify about comments she heard
14 Collier make about my age. However, she recently told me that she decided not
15 to provide a declaration in this case because she is terrified by FedEx. She told
16 me that Jason Haberlen, my replacement at FedEx, berated her for
17 communicating with me following my termination and the filing of my lawsuit,
18 and he told her she better stop communicating with me. As a result ofMr.
19 Haberlen's conduct Ms. Schick felt compelled to leave her job at FedEx in about
20 April 2014. Similarly, Debra Zarembo-Meer was also fired from FedEx recently,
21 and she too was berated by Haberlan for communicating with me about my
22 lawsuit.
23 65. On July 30,2012, I sent an email to Collier requesting all records
24 required to be provided to me under the California Labor Code. A copy of this
25 email is attached to FedEx's Motion For Summary Judgment Or In The
26 Alternative Partial Summary Judgment (FedEx's Motion) as Exhibit T.
27 14
28
MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
San Diego, CA 92121
Case No. 3:13-cv-Ol030-CAB-KSC
Exhibit 1
(858) 737-3100
000014
 Case 3:13-cv-01030-CAB-KSC Document 38-2 Filed 08/04/14 PageID.1061 Page 15 of 15

1 66. I never agreed to extend any ofFedEx's deadlines to comply with

2 this request.
3 67. On August 31, 2012, I received a package from FedEx containing
4 some, but not all, records. Various records were not included in this package,
5 including the documents attached to the Opposition as Exhibits 19, 20, 21, 38,
6 and 39, or the documents attached to FedEx's motion for summary jUdgment as
7 Exhibits P and H. The package also did not contain any of my itemized wage
8 statements.
9 68. On or about October 11,2012, I submitted a complaint to the
10 Department of Fair Employment and Housing ("DFEH"). A copy of that
11 complaint is attached to my lawsuit in this action as Exhibit 1. A copy of a letter
12 I received from the DFEH in response is attached to my lawsuit in this action as
13 Exhibit 2.
14 I declare under penalty of perjury under the laws of the State of California
15 that the foregoing is true and correct.
16 Executed this 1st day of August, 2014, in San Diego, California.

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1785.002a/36T5937.DOCX.axm

27 15
28
MARKS, FINCH,
DECLARATION OF RICHARD KERRIGAN IN OPPOSITION TO DEFENDANT'S
THORNTON & BAIRD, LLP
4747 Executive
MOTION FOR SUMMARY JUDGMENT
Drive - Suite 700
Case No. 3:13-cv-Ol030-CAB-KSC
San Diego, CA 92121
(858) 737-3100 Exhibit 1
000015