Mcavoy v. Nissan North America, Inc.

MOTION for Summary Judgment

D.N.J.April 21, 2017

Edward T. Ellis, Esq. (028661990) Rachel A. Seaton, Esq. (021842011) LITTLER MENDELSON A Professional Corporation One Newark Center, Eighth Floor Newark, New Jersey 07102 973.848.4700 Attorneys for Defendant Nissan North America, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY PETER W. MCAVOY, Plaintiff, vs. NISSAN NORTH AMERICA, INC. Defendant. Civil Action No. 3:15-cv-06824-MLC-DEA DEFENDANT’S NOTICE OF MOTION FOR SUMMARY JUDGMENT Electronically Filed TO: Linda J. Niedweske, Esq. Jessica L. Mariconda, Esq. Niedweske Barber Hager, LLC 98 Washington Street Morristown, New Jersey 07960 PLEASE TAKE NOTICE that on May 15, 2017 at 9:00 a.m., or as soon thereafter as counsel may be heard, Defendant Nissan North America, Inc. (“Defendant”) by and through its counsel, Littler Mendelson, P.C. (Edward T. Ellis, Esq., appearing), shall move before the United States District Court for the District of New Jersey, for an Order, pursuant to Fed. R. Civ. Pro. 56 granting Summary Judgment in favor of Nissan, and dismissing the Complaint against it, in its entirety and with prejudice, because there is no genuine issue as to any material fact and Nissan is entitled to judgment as a matter of law. PLEASE TAKE FURTHER NOTICE that, at the aforesaid time and place, Defendant will rely upon the accompanying Brief in Support of Motion for Summary Judgment, Defendant’s Rule Case 3:15-cv-06824-MLC-DEA Document 30 Filed 04/21/17 Page 1 of 2 PageID: 138 2 56.1 Statement of Undisputed Material Facts, the Declaration of Rachel A. Seaton, Esq. and the exhibits attached thereto and the Declaration of Tracy Jones, all of which are being filed and served simultaneously herewith, and all other pleadings and matters of record filed in this case. PLEASE TAKE FURTHER NOTICE that a proposed form of Order is submitted herewith. LITTLER MENDELSON, P.C. Attorneys for Defendant Nissan North America, Inc. By:_/s/ Rachel A. Seaton Edward T. Ellis Rachel A. Seaton Dated: April 21, 2017 Firmwide:147193962.1 073352.1031 Case 3:15-cv-06824-MLC-DEA Document 30 Filed 04/21/17 Page 2 of 2 PageID: 139 Edward T. Ellis, Esq. (028661990) Rachel A. Seaton, Esq. (021842011) LITTLER MENDELSON A Professional Corporation One Newark Center, Eighth Floor Newark, New Jersey 07102 973.848.4700 Attorneys for Defendant Nissan North America, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY PETER W. MCAVOY, Plaintiff, vs. NISSAN NORTH AMERICA, INC. Defendant. Civil Action No. 3:15-cv-06824-MLC-DEA DECLARATION OF RACHEL A. SEATON IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Electronically Filed Rachel A. Seaton, of full age, hereby declares as follows: 1. I am an attorney-at-law admitted to the bar of this Court and I am an associate with the law firm of Littler Mendelson, P.C., attorneys for Defendant Nissan North America, Inc. in the above-captioned matter. This declaration is based on my personal knowledge. 2. Collectively attached as Exhibit A are true and accurate copies of the cited pages of the transcript of the deposition of Edith Ballard (“Ballard”), taken on September 28, 2016. 3. Collectively attached as Exhibit B are true and accurate copies of the cited pages of the transcript of the deposition of Walter Burchfield (“Burchfield”), taken on September 27, 2016. 4. Collectively attached as Exhibit C are true and accurate copies of the relevant pages of the transcript of the deposition of Plaintiff Peter McAvoy (“Plaintiff”), taken on March 16, 2016. Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 1 of 86 PageID: 140 5. Attached as Exhibit Dis a true and accurate copy of the October 17, 2011 email from Edith Ballard to Timothy Gilbert, Bates Stamped P002. 6. Attached as Exhibit E is a true and accurate copy of an October 17, 2011 email, Exhibit D-3 from Plaintiff's deposition, Bates Stamped P012-P0!3. 7. Attached as Exhibit F is a true and accurate copy of the April 8, 2014 Memo from Fred M. Diaz to All Nissan Regional Employees & Contractors, Bates Stamped P000057. 8. Attached as Exhibit G is a true and accurate copy of the April 8, 2014 Memo from Tracy Jones to Plaintiff entitled "Salary Adjustment", Bates Stamped P000058. 9. Attached as Exhibit H is a true and accurate copy of the April 8, 2014 letter from Gary Frigo to Plaintiff, Exhibit D-4 from Plaintiffs deposition, Bates Stamped D-000204. I 0. Attached as Exhibit I is a true and accurate copy of the Regional Optimization Initiative (ROI) Questions and Answers for Employees, Bates Stamped P000060-P000074. II. Attached as Exhibit J is a true and accurate copy of the Complaint, filed on July 31, 2015. 12. Collectively attached as Exhibit K are true and accurate copies of the over-the-max letters sent to Paul Burch, Joseph Trebes and David Hart, Bates Stamped D-001050, D-001053 and D-00 I 054, respectively. 13. Attached as Exhibit Lis a true and accurate copy of the December 30,2016 report of Plaintiffs expert, James A. DiGabriele. 14. Attached as Exhibit M is a true and accurate copy of the February 17, 2017 report of Plaintiffs expert, James A. DiGabriele. 15. Attached as Exhibit N is a true and accurate copy of the March 17, 2017 rebuttal report of Defendant's expert, Dr. Matthew Thompson. 2 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 2 of 86 PageID: 141 I declare under penalty of perjnry under the laws of the United States of America that the foregoing is true and correct. Dated: April21, 2017 Is/ Rachel A. Seaton Rachel A. Seaton Firmwide: 147089395.1 073352.1031 3 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 3 of 86 PageID: 142 EXHIBIT A Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 4 of 86 PageID: 143 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting Page 1 U N I T E D S T A T E S D I S T R I C T C O U R T F O R T H E D I S T R I C T O F N E W J E R S E Y _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ P E T E R W . M C A V O Y , ) P l a i n t i f f , ) C i v i l A c t i o n N o . v s . ) 3 : 1 5 - C V - 0 6 8 2 4 - F L W - D E A N I S S A N N O R T H A M E R I C A , I N C , ) D e f e n d a n t . ) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ) D E P O S I T I O N O F E D I T H B A L L A R D S e p t e m b e r 2 8 , 2 0 1 6 C o m m e n c i n g a t 9 : 0 0 a . m . T h e d e p o s i t i o n o f E D I T H B A L L A R D , t a k e n o n b e h a l f o f t h e P l a i n t i f f , o n t h e 2 8 t h d a y o f S e p t e m b e r , 2 0 1 6 , i n t h e O f f i c e s o f L i t t l e r M e n d e l s o n , 3 3 3 C o m m e r c e S t r e e t , S u i t e 1 4 5 0 , N a s h v i l l e , T e n n e s s e e 3 7 2 0 1 , f o r a l l p u r p o s e s u n d e r t h e F e d e r a l R u l e s o f C i v i l P r o c e d u r e . Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 5 of 86 PageID: 144 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 2 (Pages 2 to 5) Page 2 1 A P P E A R A N C E S : 2 3 For the Plaintiff: 4 CHRISTOPHER E. CHANG, ESQ 5 NIEDWESKE BARBER HAGER, LLC 6 98 Washington Street 7 Morristown, New Jersey 07960 8 212.208.1470 9 cechang@juno.com 10 11 For the Defendant: 12 EDWARD T. ELLIS, ESQ 13 LITTLER MENDELSON, P.C. 14 1601 Cherry Street, Suite 1400 15 Philadelphia, Pennsylvania 19102 16 267.402.3008 17 eellis@littler.com 18 19 20 Also Present: 21 Katherine Knight 22 Ashley Davenport 23 24 25 Page 3 1 I N D E X 2 3 WITNESS: EDITH BALLARD: 4 5 INDEX OF EXAMINATIONS 6 Page 7 By Mr. Chang ......................... 5 8 ********** 9 10 11 REFERENCED EXHIBITS 12 Page 13 Exhibit No. D2 Email 10 14 Exhibit No. 1 Regionalization Document 45 15 Exhibit No. 2 Employee List 71 16 (Exhibits retained by Counsel) 17 ********** 18 19 20 21 22 23 24 25 Page 4 1 The deposition of EDITH BALLARD, 2 taken on behalf of the Plaintiff, on the 3 28th day of September, 2016, in the Offices of 4 Littler Mendelson, 333 Commerce Street, Suite 5 1450, Nashville, Tennessee 37201, for all 6 purposes under the Federal Rules of Civil 7 Procedure. 8 9 The formalities as to notice, caption, 10 certificate, et cetera, are waived. All 11 objections, except as to the form of the 12 questions, are reserved to the hearing. 13 14 It is agreed that Gina R. Hunter, 15 being a Licensed Court Reporter for the 16 State of Tennessee, may swear the witness, 17 and that the reading and signing of the 18 completed deposition are not waived. 19 20 21 22 23 24 25 Page 5 1 EDITH BALLARD, 2 having first been duly sworn or affirmed, 3 testified as follows: 4 EXAMINATION 5 BY MR. CHANG: 6 Q. Good morning. Could you please state 7 your full name for the record? 8 A. My name is Edith Davis Ballard. 9 Q. And, Ms. Ballard, do you prefer to be 10 called Ms. Ballard or Ms. Ballard? Does it 11 matter? 12 A. Ms. Ballard. 13 Q. Ms. Ballard, my name is Christopher 14 Chang. I'm going to be asking you some questions 15 in connection with an action which has been 16 started by Peter McAvoy against Nissan. Before we 17 start, let me just ask you some preliminary 18 questions. First of all, have you ever testified 19 before? 20 A. I've been deposed before. 21 Q. Okay. And on how many occasions have you 22 been deposed? 23 A. Once. 24 Q. And have you ever testified at a trial or 25 a hearing? Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 6 of 86 PageID: 145 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 3 (Pages 6 to 9) Page 6 1 A. No. 2 Q. Just some simple rules about a 3 deposition. It's easier when both of us do not 4 talk at the same time. So if I ask a question, 5 just let me repeat it and then you can answer it. 6 The second rule is you have to speak. In other 7 words, a nod of the head the stenographer can't 8 take down. You have to answer yes or no or I 9 don't recall, whatever the case may be. And just 10 keep your voice up so the stenographer can get a 11 clear record. 12 Are you taking any medication presently 13 that you think might affect your testimony today? 14 A. No. 15 Q. Have you spoken to anybody about your 16 anticipated or your deposition today? 17 A. My attorneys. 18 Q. Anybody else beside the attorneys? 19 MR. ELLIS: Excuse me. Can you 20 speak up a little bit? 21 THE WITNESS: Okay. All right. 22 MR. ELLIS: So we can hear you. 23 THE WITNESS: Okay. 24 BY MR. CHANG: 25 Q. Beside the attorneys, have you spoken to Page 7 1 anybody else? 2 A. My manager. 3 Q. And your manager is? 4 A. Dave Oberstadt. 5 Q. And what position does he maintain? 6 A. Senior Manager HR at Nissan. 7 Q. Anybody else? 8 A. No. 9 Q. And without telling me what was said 10 between you and Nissan's attorneys, when did you 11 meet with Nissan's attorney about your deposition 12 today? 13 A. Yesterday. 14 Q. Was that during the afternoon? 15 A. Around 1:30. 16 Q. Was that here in Nashville or was it 17 Franklin? 18 A. It was in Franklin. 19 Q. And was there anybody present -- anybody 20 else present besides you and Mr. Ellis? 21 A. Katherine Knight. 22 Q. Anybody else? 23 A. No. 24 Q. How long did that meeting last? 25 A. Two and a half hours. Page 8 1 Q. During that meeting, were you shown 2 documents? Don't tell me what they are. Just 3 were you shown documents? 4 A. Yes. 5 Q. And during that meeting or thereafter, 6 were you given a transcript of a deposition by 7 Peter McAvoy to read? 8 A. No. 9 Q. Have you ever read a deposition 10 transcript of Peter McAvoy's testimony in a 11 deposition in connection with this case? 12 A. No. 13 Q. In October of 2011, were you employed by 14 Nissan? 15 A. Yes. 16 Q. What was your position, Ms. Ballard? 17 A. HR Business Partner. 18 Q. Can you tell us what your duties and 19 responsibilities were in that position? 20 A. My duties and responsibilities as an HR 21 Business Partner for Nissan? 22 Q. Yes, ma'am. 23 A. Is to service the clients, basically, the 24 employees, any questions that they may have, any 25 questions they may have about their benefits, any Page 9 1 questions they may have about their position, any 2 questions they may have about paychecks, any 3 questions they may have about any responsibility 4 they may have. That would be my duties and 5 responsibility to answer them or at least point 6 them to the right person who can answer the 7 question. 8 Q. In October of 2011, did you have anybody 9 reporting to you? 10 A. No. 11 Q. In October 2011, who did you report to? 12 A. Patrick Kamka. 13 Q. Can you spell that person's last name? 14 A. K-a-m-k-a. 15 Q. And what was Mr. Kamka's position at that 16 time with Nissan? 17 A. Senior Manager HR Business Partner. 18 Q. And do you know in October of 2011 who 19 Mr. Kamka reported to? 20 A. Let me think about that. 21 Q. Take your time. 22 A. I don't remember exactly. 23 Q. Okay. And in October 2011, where was 24 your office located? 25 A. At One Nissan Way, Franklin, Tennessee. Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 7 of 86 PageID: 146 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 4 (Pages 10 to 13) Page 10 1 Q. And Mr. Kamka's office was also in 2 Franklin, Tennessee? 3 A. One Nissan Way, Franklin, Tennessee, yes. 4 Q. Ms. Ballard, I'm going to ask you to look 5 at this document, which has been previously marked 6 as Defendant's D2 for identification at a 7 deposition of Mr. McAvoy conducted on March 16, 8 2016. And I ask you to look at that first page of 9 the exhibit, what we call D2, and ask you if you 10 recognize it. 11 A. I do. 12 (WHEREUPON, the above-mentioned 13 document Exhibit No. D2 was referenced 14 here.) 15 BY MR. CHANG: 16 Q. What do you recognize that document to 17 be? 18 A. It's an email to Tim Gilbert regarding 19 Pete McAvoy and red circling. 20 Q. All right. And do you recognize this as 21 an email that you sent to Tim Gilbert? 22 A. Yes. 23 Q. What's the date of the email? 24 A. October 17, 2011. 25 Q. And where were you when you sent this Page 11 1 email to Mr. Gilbert? 2 A. One Nissan Way, Franklin, Tennessee. 3 Q. And do you know where Mr. Gilbert was 4 located at the time you sent him this email? 5 A. Somerset, New Jersey. 6 Q. In October of 2011, when you sent this 7 email to Mr. Gilbert, was Mr. Gilbert an employee 8 of Nissan North America? 9 A. Yes. 10 Q. Do you know what his position was at that 11 time, ma'am? 12 A. Regional Operations Manager. 13 Q. And can you tell what his duties and 14 responsibilities were as Regional Operations 15 Manager? 16 A. He would've basically been the manager of 17 the office in Somerset, New Jersey. 18 Q. And do you know if Mr. McAvoy reported to 19 Mr. Gilbert at that time? 20 A. I believe he did, yes. 21 Q. In October of 2011, do you know what 22 position Mr. McAvoy maintained with Nissan North 23 America? 24 A. At that time, he's Parts and Services 25 Manager. Page 12 1 Q. Do you know what his duties and 2 responsibilities would have been at that time as 3 Parts and Service Manager? 4 A. I understood his position to be Parts and 5 Services Manager. The details of what he exactly 6 did, I don't know. 7 Q. Can you tell us the -- give us the 8 circumstances that led you to send this email on 9 October 17, 2011, to Mr. Gilbert? 10 A. At the time, the region had made some 11 moves within the group. Pete McAvoy had been 12 identified as someone who would move to another 13 position, Associated Business Manager position. 14 As a result, his pay was not affected, and Pete 15 was very concerned that his pay may be affected. 16 Tim Gilbert verbally told him it would not be 17 affected. Tim Gilbert asked me verbatim would I 18 send an email to say that it would not be affected 19 to him. I sent it to Tim Gilbert. 20 Q. Okay. Let's go through that what you 21 just told us. You used the words moves were being 22 made in the region. 23 A. Right. 24 Q. What do you mean by that, Ms. Ballard? 25 A. Rotations. Employees were moving to Page 13 1 different districts, different positions within 2 the region. 3 Q. Were these moves unique and specific to 4 Mr. McAvoy or would they cover the region? 5 MR. ELLIS: I object to the form 6 of the question. You can answer. 7 BY MR. CHANG: 8 Q. Do you understand the question? 9 A. Repeat it, please. 10 Q. Okay. Very good. Were these moves that 11 you've described, was this something that was 12 applicable to the entire region? 13 A. Everybody in the region was not moving, 14 just some of the people in the region were moving. 15 Rotating to different positions. 16 Q. I apologize. My question was unartful. 17 Were the moves specific to this region or was it 18 across North America? 19 A. In this case, it was just this region. 20 Q. And the region that we're talking about 21 is the northeast region? 22 A. The northeast region in Somerset, New 23 Jersey. 24 Q. Thank you. And can you describe with a 25 little more particularity what were the nature of Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 8 of 86 PageID: 147 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 5 (Pages 14 to 17) Page 14 1 the moves? 2 A. Some employees were moving from one 3 district to another. Other employees were moving 4 from deal operation manager or fixed operation 5 manager to deal operations manager. Some were 6 switching jobs. Most of the positions were 7 laterals which means there was no change, but, in 8 general, a lot of people, not all the people, were 9 rotating to different positions. 10 Q. And were these moves pursuant to a plan, 11 a formal plan for that region, if you know? 12 A. Ask me the question again. 13 Q. Okay. Were these moves that you've 14 described pursuant to some sort of plan? 15 A. The region often had movement when the 16 people left the company or moved to other 17 locations, and, as a result, they would often try 18 to figure out who to backfill all the different 19 holes that they may have. And as a result, they'd 20 always start with the people that they had in the 21 group to see who's the best fit for what position. 22 And then from there, they would figure out if -- 23 where they needed to hire. 24 Q. Who was it that decided that these moves 25 should be made, if you know? Page 15 1 A. These decisions are usually made by the 2 regional vice president and his management team. 3 Q. In October of 2011, do you know who the 4 regional vice president of the northeast region 5 was? 6 A. Gary Frigo. 7 Q. And in making or planning these moves 8 during this time period, would Mr. Frigo have to 9 get a sign-off from somebody that he reported to, 10 if you know? 11 A. Absolutely. 12 Q. Who would he have to get a sign-off from? 13 A. Al Castignetti. 14 Q. And what was Mr. -- can you spell that 15 name, please, if you can? 16 A. I can take a good stab at it. 17 C-a-s-t-i-g-e-n-e-t-t-i (sic). 18 Q. Close enough. And what was 19 Mr. Castignetti's position at that time, if you 20 know? 21 A. VP of Sales and Marketing. 22 Q. And did he have to get approval -- did 23 Mr. Castignetti, would he have to get approval for 24 these -- 25 A. I don't know. Page 16 1 Q. In making these moves for this time 2 period we're talking about, would Mr. Frigo have 3 to work with the HR department for his region? 4 A. Yes. 5 Q. And what would he have to -- in what 6 manner did he coordinate with HR? 7 A. Once they had developed the plan meaning 8 the region, Mr. Frigo and his management team, 9 once they had developed a plan, they would have to 10 vet that plan with HR, meaning telling us exactly 11 what it is they wanted to do so that we could take 12 a look to make sure it was appropriate. 13 Q. And at this time period, did your -- as 14 an HR Business Partner, was there a geographic 15 region that you covered or your unit covered or 16 department covered? 17 A. Ask that question again. 18 Q. Okay. You've told -- in October of 2011, 19 your office was located in Franklin, Tennessee? 20 A. Correct. 21 Q. And what geographical areas did your 22 department cover? Was it entire northeast -- 23 entire North America or was it a central division, 24 northeast, southwest, in terms of working with the 25 regional vice presidents? Page 17 1 A. When you say my department, are you 2 talking about myself and Patrick Kamka? 3 Q. Yes. 4 A. At that time, we covered all five of the 5 regions at that time. 6 Q. Am I correct that in October of 2011, 7 there were five regions in Nissan North America? 8 A. Yes. 9 Q. Now, do you recall if during this time 10 period you reviewed the plan that had been 11 formulated by Mr. Frigo for these moves in October 12 of 2011? 13 A. Yes. 14 Q. What did you do, ma'am? 15 A. At that time, I would have looked at what 16 was being presented and then shared it with my 17 manager, Patrick Kamka, to determine if all the 18 moves were either laterals, promotions or if there 19 was any situations where employees were moving to 20 a lower grade. 21 Q. And as you sit there now, do you recall 22 how many, quote, moves were being made in October 23 of 2011, pursuant to this plan that was formulated 24 by Mr. Frigo? 25 A. I don't remember exactly. I imagine Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 9 of 86 PageID: 148 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 6 (Pages 18 to 21) Page 18 1 based on what those moves usually look like it, 2 might've been seven or eight moves. 3 Q. And I believe you testified that you 4 recall that most of these moves were lateral moves 5 as opposed to promotions or demotions. 6 A. That is correct. That is correct. 7 Q. And do you recall how many of these moves 8 would've affected the salaries of people who would 9 be affected by these moves? 10 A. Based on -- based on the document that we 11 reviewed yesterday, I think only Pete was the only 12 person who wasn't exactly -- an exact lateral. 13 Q. And what do you mean by that? 14 A. Pete was the only person who wasn't an 15 exact lateral means he's the only person who was 16 going to a position that was lower than his 17 current position. 18 Q. Okay. So do I take it to mean that in 19 the move that was contemplated for Mr. McAvoy, in 20 October of 2011, he would've gone to a lower grade 21 from the grade that he was then in? 22 A. That is correct. And there was also one 23 other person that was going a grade up. 24 Q. Who is that person? 25 A. Arcangelo Lofaro. Page 19 1 Q. We'll come back to him in a second. 2 You've made reference to a document that you 3 reviewed. What is that document? 4 A. It's an announcement. 5 Q. Who was the announcement by? 6 A. It would've been from Gary Frigo, but I 7 don't remember it actually being an announcement 8 so much as just the line -- the line-up of how 9 announcements are written, more of a draft of an 10 announcement maybe. 11 Q. And do you recall if this announcement 12 was dated sometime in October of 2011? 13 A. Yes. 14 Q. And would it be fair to say it was some 15 sort of memorandum to the employees within that 16 area? 17 A. Yes. 18 Q. And the contents would inform them which 19 changes were being made. 20 A. Yes. 21 Q. Thank you. Now, the person that you 22 mentioned that was being moved in connection with 23 the move contemplated for Mr. McAvoy, can you tell 24 us his name again? 25 A. Arcangelo Lofaro. Page 20 1 Q. And do you know what position Mr. Lofaro 2 had at that time? 3 A. I don't recall. He might've been a DOM 4 or a FOM. 5 Q. I'm sorry? 6 A. He may have been a DOM or a FOM. 7 Q. What does that mean? 8 A. Deal operations manager or fixed 9 operations manager. 10 Q. And the position that was being 11 contemplated for his move, would that mean that he 12 was in effect being promoted to a higher grade? 13 A. Yes. 14 Q. And that would have been the grade 15 occupied by Mr. McAvoy? 16 A. Correct. 17 Q. And was that, in fact, a position that 18 was then occupied by Mr. McAvoy? 19 A. Correct. 20 Q. Do you know how it is that Mr. Frigo 21 determined that this move should be made? 22 A. No. 23 Q. Do you know why Mr. Frigo made this 24 determination to have this move made? 25 A. No. Page 21 1 Q. You didn't have any discussions about -- 2 with Mr. Frigo about this? 3 A. No. 4 Q. And at the time, at the time of this 5 particular move, do you know how old Mr. Nofaro 6 was? 7 A. No. 8 MR. ELLIS: Lofaro. 9 THE WITNESS: Lofaro? 10 MR. CHANG: Lofaro. I beg your 11 pardon. 12 THE WITNESS: No. 13 BY MR. CHANG: 14 Q. Was he 50 or above or older? 15 A. No. 16 Q. Did you have any discussions with 17 Mr. Frigo about the age of Mr. Lofaro? 18 A. No. 19 Q. When you reviewed the proposed moves, did 20 you look at the ages of all the people involved? 21 A. No. 22 Q. Why not? 23 A. There's no reason to do that. 24 Q. Were you aware of the fact that at the 25 time of this proposed move for Mr. McAvoy, he was Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 10 of 86 PageID: 149 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 7 (Pages 22 to 25) Page 22 1 59 years old? 2 A. No. 3 Q. Now, prior to this email that we have in 4 front of you, that first page, which appears to 5 have been sent by you 10:59 a.m., that would be 6 the time in Franklin, Tennessee; is that right? 7 A. Correct. 8 Q. Did you have some sort of communication 9 with Mr. Gilbert about the subject matter of this 10 email prior to you sending him this email? 11 A. Yes. 12 Q. Was that by email or by phone call or 13 text message? 14 A. Phone call. 15 Q. And approximately when was that phone 16 call prior to this email? 17 A. I don't remember. 18 Q. About a week, say? 19 A. Probably a couple of days. 20 Q. And do you recall if he called you or did 21 you call him? 22 A. I don't recall. But I'm sure he -- 23 Gilbert would've called me. 24 Q. It stands to reason that he would call 25 you; is that right? Page 23 1 A. Right. Right. 2 Q. And is that because he was asking you to 3 review the move that was being contemplated for 4 Pete McAvoy? 5 A. Correct. 6 Q. And is it based on your understanding 7 that -- withdrawn. At this time, do you know if 8 Mr. Gilbert reported directly to Mr. Frigo? 9 A. Yes. 10 Q. And during this time period, was your 11 understanding that Mr. Gilbert was tasked with the 12 responsibility of implementing the moves that had 13 been decided pursuant to this plan? 14 A. Yes. 15 Q. To the best of your recollection, during 16 this phone call, this telephone conversation, what 17 did Mr. Gilbert say to you and what, if anything, 18 did you say to him? 19 A. Repeat the question. 20 Q. During this phone call that Mr. Gilbert 21 made to you prior to October 17, 2011, just tell 22 us the best as you recall what did he say to you, 23 what, if anything, you said to him. 24 A. So Gilbert would have called me and said, 25 hey, E.D. -- Page 24 1 Q. Is that your nickname? 2 A. Yeah. Pete's concerned that we're going 3 to take money from him, I've already told him that 4 we are not taking any money from him, he's asking 5 if you could send him an email saying that you're 6 not going to take any money from him or we're not 7 taking any money from him. My answer would've 8 been no. 9 Q. Meaning no, we're not going to take money 10 from him? 11 A. No. I'm not sending him an email. 12 Q. Okay. All right. And is this the first 13 telephone conversation you would've had with 14 Mr. Gilbert about this proposed move for Pete 15 McAvoy? 16 A. No. No. No. I would say that Tim would 17 have asked in advance how we would manage the fact 18 that we were going to move Pete to a lower 19 position and how would that affect his pay, and 20 the answer would've been let me get with 21 compensations to make -- to find out what the 22 answer to that question is. 23 Q. So would it be fair to say, Ms. Ballard, 24 that at the time of this conversation that you had 25 with Mr. Gilbert, you were aware that Mr. McAvoy Page 25 1 was going to be moved or was being -- there was a 2 plan for him to move? 3 A. Yes. 4 Q. And would it be fair to say -- or let me 5 ask it this way, at the time of this telephone 6 conversation, did you know that as a result of the 7 move, that Mr. McAvoy's pay salary would have been 8 lower except for -- withdrawn. At the time of 9 this telephone conversation -- 10 MR. ELLIS: You're talking about 11 the second call now or the first one? 12 MR. CHANG: The first one. The 13 first time he asked -- I'm talking about 14 the telephone conversation when he called 15 you, Mr. Gilbert, and said to you, 16 Mr. McAvoy wants some confirmation that his 17 pay won't be affected. 18 THE WITNESS: Okay. 19 BY MR. CHANG: 20 Q. At the time of that telephone 21 conversation, did you know that the proposed move 22 for Mr. McAvoy might affect his salary? 23 A. Yes. 24 Q. And affect it in such a way that it would 25 be reduced; is that correct? Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 11 of 86 PageID: 150 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 8 (Pages 26 to 29) Page 26 1 A. Yes. 2 Q. Do you know what his salary was at the 3 time? 4 A. No. 5 Q. How did you know his salary might be 6 reduced as a result of the move? 7 A. Because he was a higher grade. That's 8 the only reason. He was a salary grade 12. 9 Q. And so from that, I take it to mean that 10 the proposed move would require him to go to 11 salary grade 11 or something below that what he 12 was at? 13 A. Repeat the question. 14 Q. I take it the move, the contemplated move 15 for Mr. McAvoy would require him to go to a grade 16 pay lower; is that correct? 17 A. A grade pay lower, yes. 18 Q. And related to that, the move for Mr. -- 19 A. Lofaro. 20 Q. -- Lofaro, he would get -- his pay was 21 going to be increased. 22 A. Yes. 23 Q. Now, when -- in this conversation, when 24 Mr. Gilbert asked you -- told you that Mr. McAvoy 25 wanted some confirmation that his pay wouldn't be Page 27 1 affected, what did you say to Mr. Gilbert? 2 A. Did you tell him verbally that his pay 3 wouldn't be affected, wouldn't been my response 4 back. 5 Q. Did you say -- when he said to you, that 6 is, Mr. Gilbert said to you, he wanted something 7 in writing to confirm that his pay wouldn't be 8 affected, what did you say to that? 9 A. I'll send you something, Tim Gilbert, but 10 I'm not sending him anything directly. 11 Q. Why is that? 12 A. It's just not good practice, in my 13 opinion. 14 Q. And why do you have that opinion? 15 A. Most employees don't ask for that type of 16 a document. So it just wasn't -- it just didn't 17 seem like a good request to me. So I was willing 18 to send it to Tim, and so I did. 19 Q. Now, at the time of this conversation, or 20 when Mr. Gilbert had this conversation with you, 21 did he tell you in words and substance that he had 22 already had a number of conversations with 23 Mr. McAvoy about this move? 24 A. I don't recall him telling me he had a 25 number of them. I know he had at least one. Page 28 1 Q. But it was your impression when you had 2 this telephone conversation with Mr. Gilbert, that 3 he, meaning Mr. Gilbert, had already spoken to 4 Mr. McAvoy about this contemplated move. 5 A. Correct. 6 Q. In the email that you sent to him, you 7 say -- you use a phrase red circled. 8 A. Yes. 9 Q. All right. What did that mean? 10 A. How much you make would not be changed at 11 the time. 12 Q. Okay. Now, just in general terms, does 13 the phrase red circle have a meaning within human 14 resource practice? 15 A. I've only worked in human resource 16 practice at Nissan. So I can only speak to 17 Nissan's phrases and expressions. 18 Q. Fair enough. Within Nissan in October of 19 2011, did the term red circle have a particular 20 meaning or significance? 21 A. Pay not changed at this time. 22 Q. And was that generally known within HR or 23 within HR in Nissan North America? 24 A. Correct. 25 Q. Did red circle mean anything else with Page 29 1 respect to anything else other than salary? 2 A. Not that I know about. 3 Q. As of October 2011, had you been 4 presented requests from other employees within 5 Nissan North America to have their salary red 6 circled? 7 A. Ask the question again. 8 Q. As of October 2011 -- 9 A. Okay. 10 Q. -- had you received prior requests from 11 employees of Nissan North America or their 12 superiors to have a particular employee's salary 13 red circled? 14 A. Not that I remember. 15 Q. Is it your best recollection that in 16 October of 2011, this was a first such request 17 that had been made to you to have an employee's 18 salary red circled? 19 A. Not -- I don't remember. 20 Q. Do you know as of October 2011, if other 21 employees within the HR Business Department had 22 received requests to have an employee's salary red 23 circled? 24 A. Yes. 25 Q. On how many times had you heard that Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 12 of 86 PageID: 151 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 9 (Pages 30 to 33) Page 30 1 done? 2 A. I don't know. I don't remember. 3 Q. Is this red circle practice memorialized 4 in some sort of written policy or procedure that 5 you're aware of? 6 A. No, not that I'm aware of. 7 Q. Do you know who Wally Burchfield is? 8 A. Yes. 9 Q. And how do you know Wally Burchfield? 10 A. He's a VP of After Sales at Nissan. 11 Q. And are you aware of the fact that 12 Mr. Burchfield testified yesterday at his 13 deposition? 14 A. I am aware. 15 Q. And Mr. Burchfield testified or used the 16 term tool in describing red circle. 17 A. Okay. 18 Q. Would that be a fair characterization? 19 A. Yes. 20 Q. Okay. Since October of 2011, have you 21 received requests to have a Nissan employee's 22 salary red circled? 23 A. I don't remember. 24 Q. When did you first become aware of red 25 circling being the tool being used by HR within Page 31 1 Nissan only, Nissan North America? 2 A. 2008. 3 Q. You were with Nissan in 2008? 4 A. Yes. 5 Q. You were in HR? 6 A. Yes. 7 Q. At the time of this request, Ms. Ballard, 8 did you yourself have the authority to say, okay 9 -- 10 A. No. 11 Q. -- his salary would be red circled? 12 A. No. 13 Q. Who had that -- who did you have to go to 14 get the approval for that? 15 A. Compensations and my manager. 16 Q. And at the time, who was the 17 compensations person that you would've had to go 18 to to get approval? 19 A. Greg Ramsey. 20 Q. Is that position now occupied by Tracy 21 Jones? 22 A. No. 23 Q. Who occupies that position now? 24 A. Patrick Hillis. 25 Q. And what was Mr. Ramsey's position at Page 32 1 that time? 2 A. I think he was senior manager of 3 compensations. 4 Q. And who did he report to at that time? 5 A. I don't remember. 6 Q. Do you know if at that time he himself 7 would have to go to somebody else to get a sign- 8 off on the red circle? 9 A. More than likely, yes. 10 Q. Would he have to go as high up as the 11 regional vice president at that time? 12 A. I don't know. 13 Q. When you got this request from 14 Mr. Gilbert, what did you do? 15 A. I took it to my manager. 16 Q. That was Mr. Ramsey? 17 A. No. 18 MR. ELLIS: When you say the 19 request, are you referring to the phone 20 call that he makes to her that she's just 21 described the conversation, or are you 22 talking about the request to red circle the 23 guy? 24 MR. CHANG: I think they're the 25 same thing. Page 33 1 BY MR. CHANG: 2 Q. In this conversation with Mr. Gilbert 3 that we're talking about, would it be fair to say 4 in this conversation, he said that he -- 5 Mr. McAvoy wanted some confirmation that his 6 salary would be red circled; is that right? 7 A. Yes. 8 Q. Okay. Had you had any prior -- any 9 conversations before that about red circling 10 Mr. McAvoy's salary? 11 A. Would have with Mr. Kamka in 12 compensations. 13 Q. Okay. And so when was the first time you 14 became aware of the fact that Pete McAvoy wanted 15 his salary red circled? 16 A. That question doesn't make sense. 17 Q. What don't you understand about the 18 question? 19 A. It doesn't matter what Pete wanted. 20 Q. I'm just asking you when did you first 21 become aware of his request that his salary be red 22 circled if he was going to move? 23 MR. ELLIS: I'm objecting to the 24 form of the question. 25 MR. CHANG: You can answer it if Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 13 of 86 PageID: 152 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 10 (Pages 34 to 37) Page 34 1 you understand it. 2 THE WITNESS: I don't understand 3 it. 4 BY MR. CHANG: 5 Q. Okay. Who told you that Pete McAvoy 6 wanted his salary to be red circled in connection 7 with this move? 8 A. Nobody. Pete wanted an email. That's 9 what Pete was asking for from me, an email. 10 Q. Okay. I see. Did Mr. Gilbert have the 11 authority at that time to red circle Mr. McAvoy's 12 -- 13 A. No. 14 Q. -- salary? And you didn't have the 15 authority at that time. 16 A. No. 17 Q. Okay. Describe -- can you just tell us 18 in your own words what the process was which was 19 engaged in to get approval to red circle 20 Mr. McAvoy's salary? 21 A. Okay. 22 Q. Okay. Go. 23 A. Okay. So in a scenario such as Pete 24 McAvoy, moving from a salary grade 12 to a salary 25 grade 11, if the regional was making a request to Page 35 1 move him to a lower grade, then, the HR Business 2 Partner, myself, would take this request once 3 approved by the VP, Al Castignetti, and Mr. Frigo, 4 would take this request to upper management in 5 compensations to see if it could be approved. 6 That's the process. 7 Q. And do you know if that occurred in this 8 case with Pete McAvoy? 9 A. Yes. 10 Q. Was it both Mr. Castignetti and Mr. Frigo 11 who would take it to an upper level or was it one 12 of them? 13 A. The request would come directly to me, 14 and I would take it to compensations and my 15 manager, and then it would go from there to a 16 decision-making process. 17 Q. Ultimately, who decided that, to approve 18 or not approve, in this instance? 19 A. Compensations. 20 Q. And that department again was headed by 21 whom at that time? 22 A. I don't know who was holding the role 23 that Tracy has right now, Jones. But I know that 24 Greg Ramsey at that time was senior manager. 25 Q. And at some time, you were notified that Page 36 1 his request, that is the request by Mr. McAvoy to 2 have his salary red circled was approved? 3 MR. ELLIS: Object to the form of 4 the question. 5 BY MR. CHANG: 6 Q. Yes? Do you understand the question? 7 A. The question doesn't make sense. 8 Q. Meaning what? 9 A. You keep saying Mr. McAvoy's requesting 10 being red circled. That's not the case. 11 Q. What is the case? 12 A. The case is Tim Gilbert is sending up the 13 fact that Mr. McAvoy is going to go to another 14 grade and will his pay be affected, yes or no. 15 And the request is will his pay be affected, yes 16 or no. And the answer is, his pay will not be 17 affected and Pete McAvoy's asking for an email to 18 confirm it. 19 Q. When did you first learn that as a result 20 of the move, Pete McAvoy's salary would not be 21 affected? 22 A. Once compensation's approved it. 23 Q. And in relation to this email on October 24 17th, when did you first learn that? A week 25 before, two weeks before? Page 37 1 A. Probably three or four days before. 2 Q. Who informed you that Pete McAvoy's 3 salary would not be adversely affected? 4 A. Compensations. 5 Q. Anybody else? 6 A. Compensations. 7 Q. And after compensations told you Pete 8 McAvoy's salary would not be affected, what did 9 you do with that information? 10 A. Shared it with Tim Gilbert. 11 Q. Did you send him an email? Did you call 12 him? 13 A. I called him. 14 Q. And that would have been before this 15 October 17th email; is that correct? 16 A. Correct. 17 Q. I take it, just to move this along, 18 Ms. Ballard, that after you told Mr. Gilbert that 19 Mr. McAvoy's salary would not be affected, he in 20 turn informed Mr. McAvoy? 21 A. That is correct. 22 Q. And Mr. McAvoy said, I want something in 23 writing or an email to confirm it. 24 A. That is correct. 25 Q. And that's this email -- Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 14 of 86 PageID: 153 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 11 (Pages 38 to 41) Page 38 1 A. That's what we -- 2 Q. -- coming to you? 3 A. Correct. 4 Q. All right. Now, why don't you go to the 5 second page. 6 A. Okay. 7 Q. And the email chain starts at the bottom. 8 A. Okay. 9 Q. Do you see that -- the email, it's by 10 you? 11 A. Yes. 12 Q. To Mr. Gilbert, it's October 17, 2011. 13 A. Correct. 14 Q. And that's the same email that's on the 15 previous page. 16 A. Correct. 17 Q. But the time there is indicated as being 18 9:59 a.m., correct? 19 A. Correct. 20 Q. That would have been the time you sent it 21 because you're here in Franklin; is that correct? 22 A. Correct. 23 Q. Because the time on the email on the 24 prior page is 10:59, he's in Somerset, New Jersey? 25 A. Correct. Page 39 1 Q. There's a one hour difference in time? 2 A. That's correct. 3 Q. Okay. And the next email you see there 4 is by you. 5 A. Correct. 6 Q. And that's October 17th at 11:38 a.m. 7 A. Correct. 8 Q. And that would be the time in Franklin, 9 correct? 10 A. Yes, correct. 11 Q. And it says, “Yes, feel free to give Pete 12 this email.” 13 A. Correct. 14 Q. Did you have -- do you recall having a 15 telephone conversation between the 9:59 email and 16 the 11:38 email with Tim Gilbert? 17 A. Yes. 18 Q. How many? 19 A. One. 20 Q. Did he call you? Did you call him? 21 A. Tim would call me. 22 Q. And what did he say, to the best of your 23 recollection, when he called you? 24 A. Pete wants confirmation of the -- of the 25 fact that his salary not be affected and the Page 40 1 answer was, I sent you an email. And he's saying 2 -- he's asking can he have -- can he have the 3 email. 4 Q. Your email? 5 A. Yes. 6 Q. And you said, yes. 7 A. I said, no, I said, let me ask my 8 manager. 9 Q. Good. And did you ask your manager? 10 A. I did. 11 Q. And who was that again at the time? 12 A. Patrick Kamka. 13 Q. And did he say yes? 14 A. Send him the email. 15 Q. Okay. And Mr. Kamka, he was also in 16 Franklin, Tennessee? 17 A. Correct. 18 Q. And the same geographical location your 19 office is? 20 A. Correct. 21 Q. And then, hence, this email at 11:38? 22 A. Correct. 23 MR. CHANG: Why don't we take a 24 five-minute break, two-minute break? Okay? 25 It's an appropriate time because I'll be Page 41 1 rolling into something else. 2 MR. ELLIS: That's fine. 3 (A break was taken.) 4 MR. CHANG: Back on the record. 5 BY MR. CHANG: 6 Q. Before we go to the next area, let me 7 just get some testimony from you, Ms. Ballard, 8 about your professional background. How long have 9 you been working for Nissan? 10 A. Since September 6, 1983. 11 Q. Did you attend college, ma'am? 12 A. Yes. 13 Q. Which school was that? 14 A. Trevecca Nazarene University. 15 Q. Here in Nashville? 16 A. Yes. 17 Q. And what years did you attend Trevecca? 18 A. 1998 through 2003, around there. 19 Q. Did you receive a degree from Trevecca? 20 A. I received two degrees from Trevecca. 21 Q. And what were they, ma'am? 22 A. A Bachelor's. 23 Q. In what major? 24 A. In human resource and organizational 25 development. Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 15 of 86 PageID: 154 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 12 (Pages 42 to 45) Page 42 1 Q. And what year was that? 2 A. 2002. 3 Q. And the second degree or the other 4 degree? 5 A. It's a Master's in business. 6 Q. An HR specialty or -- 7 A. Yes. 8 Q. And what year was that? 9 A. 2003. 10 Q. Okay. What was your first position with 11 Nissan when you first started? 12 A. I was a line technician, building cars on 13 the line, actually, trucks. 14 Q. That's terrific. How long did you do 15 that for? 16 A. Actually, built trucks, three years. 17 Q. After that, what did you do? 18 A. Quality assurance. 19 Q. How long were you quality assurance? 20 A. Four years. 21 Q. Now, the first position, where were you 22 stationed? 23 A. In Smyrna, Tennessee. 24 Q. And the second? 25 A. Smyrna, Tennessee. Page 43 1 Q. And then after the second position, what 2 did you do? 3 A. Worked in plastics, building fuel tanks. 4 Q. Same area? 5 A. Smyrna, Tennessee. 6 Q. How long did you do that for? 7 A. Six, seven years. 8 Q. And what did you do -- and that was for 9 Nissan. 10 A. Correct. 11 Q. And then after that position, what did 12 you do? 13 A. Went in Human Resources. 14 Q. What year was that, ma'am? 15 A. It was 2002, 2003, around like there. 16 Yeah. Right about the same time I finished my 17 degree, I went into HR, and I was continuing to 18 work on my second degree while I was in HR. 19 Q. So I take it that you were working full 20 time when you went to school to get your 21 Bachelor's -- 22 A. Absolutely. 23 Q. -- MBA. That's terrific. And when you 24 started in HR, did you have a specific title? 25 A. It would've been generalist. Page 44 1 Q. What were your duties and 2 responsibilities when you first went into HR in or 3 about 2002? 4 A. So at that time, my duties were to walk 5 the line, talk to the technicians, find out what 6 their needs were, answer their specific questions, 7 meet with their management, find out what their 8 specific needs were, and basically answer any 9 types of questions that I could or at least get 10 them to the right person regarding whatever 11 concerns they may have had, much like what I do 12 today. 13 Q. And how long were you in that position 14 for? 15 A. Until 2006. 16 Q. And what occurred in 2006? 17 A. In 2006 -- 18 Q. In terms of your employment? 19 A. In 2006, I changed positions and I'm 20 still considered a HR Business Partner at that 21 point, and supporting the move from California to 22 Tennessee. Nissan moved from California to 23 Tennessee. So I spent about three, four months in 24 California. 25 Q. When you first started in HR in 2002, Page 45 1 where were you stationed? 2 A. In Smyrna, Tennessee. 3 Q. And then that changed at some point? 4 A. 2006. 5 Q. You're out in California for a short 6 period of time? 7 A. Correct. 8 Q. And then you came back? 9 A. And they moved to the AT&T building in 10 which we worked from this building. 11 Q. Here in Nashville? 12 A. Correct. 13 Q. And you've maintained your position as an 14 HR Business Partner from that time to the present? 15 A. Correct. 16 Q. Ms. Ballard, I ask you to look at this 17 document which was marked yesterday as Exhibit 1, 18 Plaintiff's Exhibit 1, during the deposition of 19 Mr. Burchfield, and ask you to examine it. 20 MR. CHANG: Do you have it 21 yourself? 22 MR. ELLIS: Yes, I'm fine. 23 THE WITNESS: Okay. 24 (WHEREUPON, the above-mentioned 25 document Exhibit No. 1 was referenced Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 16 of 86 PageID: 155 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 13 (Pages 46 to 49) Page 46 1 here.) 2 BY MR. CHANG: 3 Q. Have you ever seen this document prior to 4 today? 5 A. Yes. 6 Q. What is this document, Ms. Ballard? 7 A. This particular document is the package 8 that was given to Pete McAvoy on April 8, 2014, 9 regarding regionalization. 10 Q. And were you present when this document 11 was presented to Mr. McAvoy on or about April 8, 12 2014? 13 A. I was present at the end of the time it 14 was given to him. So to answer your question, 15 yes. But when it was handed to him, put in his 16 hands, I was not at the moment in the room. 17 Q. And where -- geographically, where was 18 everybody located? 19 A. Somerset, New Jersey. 20 Q. And I take it based on the testimony of 21 Mr. Burchfield, is that the roll-out of this 22 program, the regional optimization initiative 23 occurred on April 8, 2014? 24 A. Correct. 25 Q. When did you first learn of this Page 47 1 initiative? 2 A. It was sometime in June, the June time 3 frame, is when I found out about the time frame, 4 2013. 5 Q. In or about June 2013? 6 A. Correct. 7 Q. How did you learn about it? 8 A. Based on a meeting put on my calendar. 9 Q. At the time, were you stationed out in 10 Nashville or Franklin? 11 A. Franklin, at the time. 12 Q. And when you say it was on your calendar, 13 was it a meeting, was it a telephone call? 14 A. It was a meeting. 15 Q. Was the meeting in Franklin? 16 A. Correct. It was in Franklin. 17 Q. Who called for the meeting? 18 A. Wally Burchfield. 19 Q. Who was in attendance at this meeting? 20 A. Wally Burchfield, Amy Plumlee, Dave 21 Oberstadt, compensations, Mary Pierce, Starr 22 Perry. 23 Q. Who's that? 24 A. One of my counterparts. 25 Q. Were there any regional vice presidents Page 48 1 present at this meeting? 2 A. Not at this meeting. 3 Q. Anybody else? 4 A. Not that I can remember. 5 Q. Do you know if anybody from legal was 6 present at this meeting? 7 A. Probably Mike Berger. 8 Q. How about people from finance? 9 A. Not that I remember. 10 Q. Who conducted the meeting? 11 A. It would've been Wally Burchfield. 12 Q. And prior to this meeting in or about 13 June of 2013, did you know what the meeting would 14 address? 15 A. No. 16 Q. Meeting take place in Franklin, here in 17 Tennessee? 18 A. Franklin, Tennessee, correct. 19 Q. Why don't you tell us to the best of your 20 recollection what occurred at the meeting, what 21 was said and by whom? 22 A. Best of my recollection, as a result of 23 Nissan expanding our regions, when we making some 24 changes with the region, we're going to be, you 25 know, hiring additional people, that we need more Page 49 1 people, we need our people to live within the 2 districts, to improve objectives and KPIs by the 3 company. 4 Q. When you say KPIs, what do you mean by 5 that? 6 A. Key performance indicators. 7 Q. And was it explained or discussed at this 8 meeting how this initiative would achieve the 9 objectives that you've just outlined? 10 A. More districts, less people, less dealers 11 for our field people to call on, less drive time, 12 less windshield time, employees live within their 13 districts, better life for employees. 14 Q. Was there any discussion about how this 15 initiative would impact salaries of Nissan 16 employees? 17 A. Not initially. 18 Q. At this meeting, were there any handouts, 19 any PowerPoint presentations of any sort that you 20 recall? 21 A. Not that I recall. 22 Q. How long did this meeting last? 23 A. I don't know. Maybe an hour. 24 Q. Do you recall what else was discussed? 25 A. No. Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 17 of 86 PageID: 156 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 14 (Pages 50 to 53) Page 50 1 Q. Was there any discussion at this meeting 2 about whether this initiative would impact more 3 senior employees of Nissan North America? 4 A. No. 5 Q. How did the meeting conclude, 6 substantively? 7 A. Guess what, we're going to have another 8 meeting. 9 Q. Okay. I got that. At this meeting in 10 June of 2013, was it your impression that this 11 initiative had already been formalized and 12 approved by whoever had to approve it? 13 A. No. 14 Q. Was it your impression it was still in 15 the so-called planning stage? 16 A. Yes. 17 Q. Or formulation? 18 A. Yes. 19 Q. Okay. And at this meeting, do you know 20 who was responsible for formulating this plan or 21 initiative? 22 A. Wally Burchfield. 23 Q. And this is the first time you had heard 24 about this initiative? 25 A. Yes. Page 51 1 Q. What's the next thing you recall 2 happening? 3 A. Another meeting. 4 Q. We're going -- I guess we're going to 5 have to go through a few of these. How long after 6 this first meeting does the second meeting occur? 7 A. Probably a week or two. 8 Q. Who was present for the second meeting? 9 A. Probably the same exact people. 10 Q. Now, was the date of that second meeting 11 set at the first meeting? 12 A. No. 13 Q. Okay. This subsequent or second meeting, 14 this was also in Franklin, Tennessee? 15 A. Correct. 16 Q. The same people attended, I take it? 17 A. Yeah. As far as I can remember. 18 Q. Okay. Why don't you tell us what was 19 discussed at the second meeting? 20 A. Basically, the same thing, working on 21 trying to figure out the next steps, making the 22 next steps, how do we go forward, how will we roll 23 this out, when will we do it. 24 Q. At this second meeting, do you recall 25 being discussed a specific date or a time period Page 52 1 when this plan was to be rolled out? 2 A. There was a date, but I don't remember 3 what that date was initially. 4 Q. When did you first become aware of a 5 particular date that this plan was to be rolled 6 out? 7 A. I don't remember. It had to be 8 June/July. I don't remember any exact dates. I 9 just don't remember. It's been a while. 10 Q. At this second meeting, do you recall if 11 there were any handouts, any PowerPoint 12 presentations of that sort? 13 A. There would've been, but I don't remember 14 what. 15 Q. Well, do you recall receiving anything? 16 A. I don't recall receiving anything. 17 Q. And how long did the second meeting last? 18 A. Hour. 19 Q. And I take it this meeting concluded by 20 -- with the conclusion that we're going to have 21 another meeting? 22 A. Correct. 23 Q. And was it your impression that there 24 would be lots of meetings from now until this plan 25 -- Page 53 1 A. Absolutely. 2 Q. -- was rolled up? 3 A. Absolutely. 4 Q. Okay. How many -- rather than going 5 through each and every meeting, Ms. Ballard, how 6 many meetings do you think you had regarding the 7 regional optimization initiative during 2013? 8 A. From June to April 8th, I'm going to 9 guess, a meeting every week. 10 Q. That's a lot of meetings. 11 A. Yes. 12 Q. Did there come a time in connection with 13 the planning and the formulation planning and 14 execution of this initiative that the regional 15 vice presidents, all the regional vice presidents 16 at Nissan North America met together with other 17 people? 18 A. Yes. 19 Q. When was the first such meeting where the 20 regional vice presidents came in? 21 A. I don't remember exact dates. 22 Q. Okay. How about time periods, let's say 23 it was in 2013, and work from there. 24 A. Before Christmas. 25 Q. And by that time, in your opinion, was Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 18 of 86 PageID: 157 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 15 (Pages 54 to 57) Page 54 1 the initiative final? 2 A. No. 3 Q. Would it be fair to say that the first 4 such meeting where the regional vice presidents 5 came in was to make the presentation to them and 6 get their reaction to it and response? 7 A. I don't remember. It would've -- I don't 8 remember exactly. I don't know what exactly they 9 knew. I don't know what they knew. 10 Q. During 2013, what role, if any, was HR 11 asked to play in this initiative? 12 A. HR is a broad -- that's a broad -- are 13 you asking me what part did I play? 14 Q. No. Just generally HR. What role was, 15 if any, was HR expected to play in this plan, in 16 the implementation of this plan? 17 A. Well, one role HR was supposed to play, 18 of course, if we have to go, once this thing was 19 actually implemented, we have to actually go to 20 the region to be a part of the actual roll-out to 21 the employees at the specific locations. 22 Q. When would you say, in your opinion, this 23 plan became a final plan for execution? 24 A. I think it -- based on memory, I'm going 25 to be honest, I don't remember the exact date it Page 55 1 was rolled out by execution. I know that after 2 Christmas, we were getting closer to a final date 3 in execution, after Christmas 2013, and final 4 approval for that matter. 5 Q. I'm sorry? 6 A. And final approval. 7 Q. And did you have an understanding as to 8 who would have to give the final approval for this 9 plan? 10 A. Yeah. It would be Wally Burchfield's 11 superiors. 12 Q. Would it be by committee or was it one 13 person, if you know? 14 A. I don't know. 15 Q. During these -- and did the meetings 16 continue, these weekly meetings continue after 17 January 1, 2014, until the roll-out in April? 18 A. Correct. They did. 19 Q. And would it be fair to say that these 20 meetings were held on a regular basis? 21 A. Correct. They were. 22 Q. How many times did the regional vice 23 presidents come into Franklin for meetings to 24 review and discuss this plan? 25 A. I recall seeing them maybe three times. Page 56 1 Q. And you yourself, as a representative of 2 HR, did you attend every meeting that you could 3 that was called with respect to the initiative? 4 A. Yes. 5 Q. So it'd be fair to say that you must've 6 attended over 25 meetings, 30 meetings, from June 7 of 2013 until the roll-out in April 2014? 8 A. At least, yes. 9 Q. In looking at that document, you see that 10 there's a memo or a memorandum -- 11 A. Yes. 12 Q. -- by Fred Diaz. 13 A. Yes. 14 Q. And he's a Senior VP at Nissan. 15 A. Yes. 16 Q. And then there's a second page where 17 there's a memo by Tracy Jones. 18 A. Yes. 19 Q. The specific title is director total 20 awards, but she's a compensation director. Is 21 that what that title is? 22 A. That's correct. 23 Q. Do you know who prepared these two first 24 pages of these memos? 25 A. This one? Page 57 1 Q. Yes. 2 A. HR Business Partners would have wrote the 3 words more than likely along with legal. 4 Q. Did you participate in the preparation of 5 this memo for Mr. Diaz? 6 A. Very limited. 7 Q. How about the second one for Ms. Jones? 8 A. No. 9 Q. Now, the third and fourth pages, the 10 third page is specific to Mr. McAvoy, but I take 11 it this was a standard letter -- 12 A. Yes. 13 Q. -- to the employees who were impacted by 14 -- 15 A. Correct. 16 Q. -- the initiative. You need to let me 17 finish my questions. 18 A. Oh, I'm sorry. 19 Q. Oh, no, that's quite all right. Did HR, 20 if you know, prepare this form letter? 21 A. Correct. 22 Q. And then there's a Q&A for -- sometimes, 23 it's called a fact sheet which comprises the rest 24 of the exhibit. Do you know which department 25 prepared the fact sheet? Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 19 of 86 PageID: 158 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 16 (Pages 58 to 61) Page 58 1 A. HR and legal. 2 Q. And did you have any participation 3 yourself in the preparation of this document? 4 A. Yes. Limited, but yes. 5 Q. When did these documents reach final form 6 to the best of your recollection? 7 A. Probably a week before they rolled out. 8 Q. And the roll-out was going to be across 9 Nissan North America, all five regions; is that 10 correct to say? 11 A. Correct. 12 Q. At any time during the meetings, during 13 2013 into 2014, do you recall any discussions 14 being had with respect to the impact the 15 initiative would have on the salaries of Nissan 16 employees who would be affected by the initiative? 17 A. Ask me the question again. 18 MR. CHANG: Can you read that 19 back? 20 THE REPORTER: Yes. 21 (Record read back.) 22 BY MR. CHANG: 23 Q. Do you want me to ask it again? 24 A. Yeah. 25 Q. Okay. At any time during 2013 or '14, do Page 59 1 you recall any discussions during these meetings 2 about the impact the initiative would have on the 3 salaries of those Nissan employees who would be 4 affected by the program? 5 A. Yes. 6 Q. And what were those discussions? 7 A. More of the initiative, actually, some 8 employees would probably end up in low grades, 9 some employees may go in higher grades. That's -- 10 that's the basic impact. That's what I remember. 11 Q. During this time period, that is, during 12 the time period the first quarter of 2014, let's 13 make it more specific, do you know offhand 14 approximately how many total employees Nissan 15 North America had? 16 A. Fifteen to 20,000. 17 Q. And based on the discussions and your 18 review of the initiative, how many employees would 19 the initiative impact on any basis, if you know? 20 A. When you say initiative, are you talking 21 about region optimization initiative? 22 Q. Yes, ma'am. Yes, ma'am. 23 A. Approximately 300. 24 Q. And was that known prior to the roll-out 25 of the program on April 8, 2014? Page 60 1 MR. ELLIS: Object to the form of 2 the question. 3 BY MR. CHANG: 4 Q. Do you understand the question? 5 A. Ask me the question again. 6 Q. The question is you testified that the 7 initiative affected about 300 employees, correct? 8 A. Correct. 9 Q. Do you know if that fact was known before 10 the roll-out of the program in April of 2014? 11 MR. ELLIS: Object to the form of 12 the question. You can answer. 13 MR. CHANG: You can answer. You 14 may answer. 15 THE WITNESS: Yes. 16 BY MR. CHANG: 17 Q. How was it known? 18 A. Pardon? 19 Q. How was that fact known? 20 MR. ELLIS: Object to the form of 21 the question. 22 THE WITNESS: How many employees 23 are there in the regions? They're all 24 affected by it. 25 BY MR. CHANG: Page 61 1 Q. Well, Ms. Ballard, not every employee 2 that was employed by Nissan in the first quarter 3 of 2014 was affected by this initiative; is that 4 correct? 5 A. Not all 20,000, correct. 6 Q. Okay. It was only about 300. 7 A. Correct. 8 Q. Okay. How did you know that? 9 A. I know how many employees we have in the 10 region approximately. 11 Q. But how did you know that approximately 12 300 would be affected by the program? 13 A. Because this only affected regional 14 employees. 15 Q. Okay. And do you know if any studies or 16 analyses were done in terms of how the impacted 17 employees would be affected by the program? 18 MR. ELLIS: Object to the form of 19 the question. You can answer. 20 THE WITNESS: Ask the question 21 again. 22 BY MR. CHANG: 23 Q. Ms. Ballard, do you know if there are any 24 studies done or any analyses done about how the 25 impacted employees would be affected by the Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 20 of 86 PageID: 159 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 17 (Pages 62 to 65) Page 62 1 program? 2 A. How they would be affected by the 3 program? 4 Q. Correct. 5 A. No. I mean, basically, we have to know 6 exactly who we're talking about. So all the names 7 of the employees would have been pulled to look at 8 specifically. 9 Q. When was that done? 10 A. I don't know. 11 Q. Was that -- 12 A. During June, during April, somewhere. 13 Q. Ms. Ballard, prior to the roll-out -- 14 A. Okay. 15 Q. -- on April 8, 2014, was it known 16 specifically which employees would be impacted by 17 the regional optimization initiative? 18 A. Yes. 19 Q. Was a list compiled of those employees? 20 A. Yes. 21 Q. Who compiled that list? 22 A. I don't know. 23 Q. Was it HR? 24 A. Yes. 25 Q. Did you ever see that list prior to April Page 63 1 2014? 2 A. Yes. 3 Q. And what information was contained in 4 that list? 5 A. Their names, where they lived, what 6 district they had, what region they were in. 7 Q. Current position? 8 A. Current position. 9 Q. New position under the program? 10 A. Yes. 11 Q. Current salary grade? 12 A. Yes. 13 Q. New salary grade after -- 14 A. Correct. 15 Q. -- implementation of the program? 16 A. Right. 17 Q. Age? 18 A. Yes. 19 Q. Gender? 20 A. Yes. 21 Q. Any other information? 22 A. Not that I remember. 23 Q. And the compilation of that list, was it 24 one list or multiple lists? 25 A. As far as I know, it was one list. Page 64 1 Q. And was that distributed among all the 2 folks in -- 3 A. No. 4 Q. Who is it distributed to if you know? 5 A. Compensations own that list. 6 Q. When you say own that list, what do you 7 mean by that? 8 A. They created it. It was their list. 9 Q. It wasn't an HR created list? 10 A. Compensations is part of HR. 11 Q. Okay. But it was within the broad 12 umbrella, it was a compensations -- 13 A. Yes. 14 Q. -- document? 15 A. I think it was a compensation/HR 16 document. 17 Q. And do you know who requested that that 18 list be prepared and compiled? 19 A. It would have been Wally Burchfield. 20 Q. And do you know why he would've asked for 21 such a list to be compiled? 22 A. So he could understand our groups. 23 Q. And as a result of the implementation of 24 the program, were salaries reduced for employees 25 that were impacted by the program? Page 65 1 A. Ask that question again. 2 Q. As a result of the implementation of the 3 program, were salary -- did salary reductions 4 occur for the employees who were impacted by the 5 program? 6 A. Not just for ROI. 7 Q. But I'm talking about just ROI. 8 A. No. 9 Q. There were no salary reductions? 10 A. Not just because of ROI. It was salary 11 reductions. 12 Q. And what did those salary -- why did 13 those salary reductions occur? 14 A. Because we had employees over the max -- 15 over the max of the salary band. 16 Q. And how did the employees who were over 17 the max of the salary band, how did they get to 18 that point, if you know? 19 A. I don't know how all of them got there, 20 but I know some got there because at some point in 21 their career, they had been at a higher level, 22 senior manager maybe, and as time moved on and 23 reorganizations occurred, employees were bound to 24 lower grades, but their salary was not affected 25 even though they weren't in those roles anymore. Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 21 of 86 PageID: 160 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 18 (Pages 66 to 69) Page 66 1 Q. Would it be fair to say, Ms. Ballard, 2 that one objective of the regional optimization 3 initiative was to have the salaries of those 4 employees which were above their band to be 5 brought back within their band? 6 A. That applied to all employees, not just 7 ROI. 8 Q. Okay. Let's follow that. Was one 9 objective of the regional optimization initiative 10 was to pull the salaries of the employees into the 11 appropriate band for which grade level they were 12 in? 13 A. Correct. 14 Q. Is your recollection that this list which 15 was compiled by compensation was compiled in 2014 16 as distinguished from late 2013? 17 A. I think -- I don't remember. I think -- 18 I didn't see it until probably -- late 2013. I'd 19 say late 2013. 20 Q. Okay. After this list was distributed, 21 do you recall any discussions during any of these 22 meetings about the impact this initiative would 23 have upon the employees who are ages 50 and over? 24 A. No. 25 Q. You don't know -- Page 67 1 A. I said no. 2 Q. I'm asking you a separate question. You 3 don't know if compensation or anybody else in HR 4 did an analysis of how many people over 50 would 5 be impacted by the program? 6 A. I don't know of any such analysis. 7 Q. After the roll-out of the program in 8 April of 2014, did HR to the best of your 9 knowledge receive any complaints from employees 10 about the impact it had on them? 11 A. Pete McAvoy. 12 Q. Anybody else? 13 A. A few other people. 14 Q. Without telling us the names of the other 15 people, what was the nature of the complaints? 16 A. My pay was reduced. 17 Q. They weren't happy about that, I take it. 18 A. No. 19 Q. And about how many such complaints did 20 you receive? 21 A. Personally? 22 Q. Let's start with you personally. 23 A. Maybe two or three. 24 Q. And are you aware of other complaints 25 which were received by HR other than you Page 68 1 personally? 2 A. Yes. 3 Q. About how many? 4 A. I don't remember. 5 Q. Of the three that you received 6 personally, were they by employees who were 50 or 7 older? 8 A. I don't know how old they were. 9 Q. What did you do when you received those 10 complaints? 11 A. Reported it to compensations and Wally 12 Burchfield. 13 Q. And when you say compensation, you're 14 talking about Ms. Jones? 15 A. Correct. 16 Q. And the other complaints that you were 17 aware of but not reported to you personally, do 18 you know the ages of the person? 19 A. No. No. 20 Q. Do you know if any inquiry was made by 21 anybody about the ages of those people? 22 A. Repeat the question. 23 Q. Do you know of any inquiry was made by HR 24 as to the ages of those people who made 25 complaints? Page 69 1 A. You mean inquiry. 2 Q. Did somebody look up their file and see 3 how old that person was? 4 A. Not that I know of. 5 Q. Well, do you recall if any of these 6 people were 30 years or 30 to 39 year old age 7 range? 8 A. I don't recall. 9 Q. Your testimony is that you did not know 10 the ages of these people and you didn't look into 11 the ages of these people. 12 A. No. I would not. I did not. 13 Q. When this package, exhibit -- the copy of 14 Exhibit 1 -- 15 A. Okay. 16 Q. -- was presented to Mr. McAvoy, who was 17 present? 18 A. Initially? 19 Q. Yes, ma'am. 20 A. When it was first delivered to him, Jun 21 Watanabe, Gary Frigo, and I came into the office a 22 few minutes later. I wish they had of waited, but 23 -- 24 Q. I'm sorry? 25 A. I said I wish they had allowed me to be Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 22 of 86 PageID: 161 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 19 (Pages 70 to 73) Page 70 1 in there in the beginning. 2 Q. And this took place at the Somerset 3 office? 4 A. Correct. 5 Q. And was this in a conference room or 6 somebody's office? 7 A. Gary Frigo's office. 8 Q. And when you came in -- 9 A. Yes. 10 Q. -- what do you recall being said at that 11 time? 12 A. When I walked in, McAvoy had this packet 13 in his hand, and he said, you said my salary would 14 never be affected. And I -- 15 Q. Who did he direct that comment to? 16 A. Me. Me directly. 17 Q. When you walked in or entered that 18 meeting, do you have an impression of how long the 19 meeting had already been in progress for? 20 A. Probably about eight or ten minutes. 21 Q. And when Mr. McAvoy made that statement 22 to you, what, if anything, did you say? 23 A. This is ROI, this is regionalization. 24 It's a different initiative. 25 Q. What, if anything, did he say to that? Page 71 1 A. You'll hear from my lawyer, see you in 2 court, something to that effect. 3 Q. What was his demeanor at the time? 4 A. He was angry. 5 Q. Was he yelling? 6 A. No. 7 Q. And did -- after he made that comment to 8 you after you entered the meeting, what, if 9 anything, did Mr. Frigo or is it Jun Watanabe what 10 did he say -- what did they say, if anything? 11 A. I don't remember. 12 Q. And after he made that statement, what 13 happened next, or after you said, this is ROI, 14 what happened next? 15 A. They walked out. 16 Q. Ms. Ballard, I ask you to take a look at 17 this document which has been marked -- which was 18 marked as Plaintiff's Exhibit 2 yesterday at 19 Mr. Burchfield's deposition and ask you to examine 20 it. I'll have some questions about that. 21 A. Okay. 22 (WHEREUPON, the above-mentioned 23 document Exhibit No. 2 was referenced 24 here.) 25 BY MR. CHANG: Page 72 1 Q. Do you recognize this document, ma'am? 2 A. I do. 3 Q. What do you recognize it as? 4 A. All the employees who are regional 5 employees, all regional employees. 6 Q. And did you prepare this document? 7 A. No. 8 Q. Do you know who did? 9 A. No. Somebody in HR. 10 Q. The last page has a certification. Do 11 you see that? 12 A. Yeah. 13 Q. Is that your signature? 14 A. It is. 15 Q. And do you know who asked that this 16 document be prepared? 17 A. This original document or the one -- 18 Q. The original document. The list, chart, 19 schedule. 20 A. Wally Burchfield. 21 Q. Do you know when the chart -- let's call 22 it the chart for purposes -- 23 A. Okay. 24 Q. -- of the deposition. Do you know when 25 this chart was prepared? Page 73 1 A. No. 2 Q. How do you know that Wally Burchfield 3 asked for this document to be prepared? 4 A. Everything about ROI was done as a result 5 of Wally Burchfield's request. 6 Q. And your recollection is that this chart 7 was prepared by HR as distinct from somebody in 8 compensation? 9 A. Say that again. 10 Q. Do you have a recollection as to who 11 specifically or what department specifically 12 prepared this chart? 13 A. HR operations. 14 Q. Which is something different than 15 compensation. 16 A. It's different from compensation, 17 correct. We're all HR. 18 Q. And who specifically within operations 19 would have prepared this document, if you know? 20 A. I don't remember. 21 Q. And in looking at the document and based 22 on your experience, work experience within Nissan, 23 do you know what, if any, source documents 24 would've been used to prepare this response -- 25 this chart and the information contained therein? Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 23 of 86 PageID: 162 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 20 (Pages 74 to 77) Page 74 1 A. HRIS file. 2 Q. I'm sorry? 3 A. HRIS file. 4 Q. IS files? 5 A. HR information system file. 6 Q. Okay. Now, based on the interrogatory 7 which was posed for which this response was 8 provided, this is a chart containing the names of 9 all Nissan employees who were impacted by ROI. 10 A. Correct. 11 Q. Do you know, and I understand that you 12 did not specifically prepare this chart, but you 13 see in the left-hand corner -- 14 A. Yes. 15 Q. -- upper left-hand corner at the top of 16 the line, it says, age as of October 25 or it says 17 ten dot twenty-five dot fifteen. Do you know why 18 the ages of the individuals that are contained in 19 this chart was picked as of I'm assuming 10/25/15 20 refers to October 15, 2015, do you know why that 21 date was picked? 22 A. No. 23 Q. And I'm correct, your certification on 24 the last page is dated April 15, 2016. 25 A. Right. I can only guess this information Page 75 1 was requested 10/25/15, as of date. 2 MR. ELLIS: I think it's the date 3 of your interrogatories. 4 MR. CHANG: Okay. 5 BY MR. CHANG: 6 Q. Does this chart resemble in any form or 7 fashion the list that you previously testified to 8 that had been distributed prior to the roll-out of 9 the program in April of 2014? 10 A. Yes. To some degree. 11 Q. And do you recall what differences, if 12 any, exist between this chart and that list that 13 had been distributed prior to the roll-out? 14 A. Well, it's the day for one. 15 Q. Yes, ma'am. Is there any other 16 information contained in the list that's not 17 contained in this chart? 18 A. Race is not here. Where they live is not 19 on here. What district they're going to be 20 reporting is not on here. There's a few other 21 things. I can't remember what they were. Their 22 sex is not on here. I think it was on the other 23 one. 24 Q. The list that you testified to that was 25 distributed before the roll-out, do you have a Page 76 1 copy of that list? 2 A. No. 3 Q. Do you know who does? 4 A. Wally Burchfield. 5 Q. Now, let's go through the first page of 6 this chart. 7 A. All right. 8 Q. Can you tell us -- and I know this may be 9 a little difficulty because you don't have all the 10 records in front of you, but can you tell us on 11 this first page what employees no longer are 12 employed by Nissan? 13 A. No, not really. I can tell you, I mean, 14 if it's a hit or a miss. I know a few. 15 Q. Okay. Why don't you identify the ones 16 that you can who are no longer employed by Nissan? 17 A. Vickie Candeto retired. 18 Q. Okay. Anybody else? 19 A. That's all I know for sure on the first 20 page. 21 Q. Okay. Let me pick some names out of 22 here. 23 A. Okay. 24 Q. And put it to you. Near the top of the 25 page, Joseph Lavrencik, L-a-v-r-e-n-c-i-k, is he Page 77 1 still with Nissan? 2 A. I don't know. 3 Q. You've also -- you've identified Vicki 4 Candeto. 5 A. Yes. 6 Q. C-a-n-d-e-t-o. 7 A. Right. 8 Q. Is she retired? 9 A. She retired. 10 Q. How about Brian Witt, W-i-t-t? 11 A. I don't know. 12 Q. Paul Burch, B-u-r-c-h? 13 A. Paul Burch retired. 14 Q. And down at the bottom of the page, 15 Michael Goodman, G-o-o-d-m-a-n. Is he still with 16 Nissan? 17 A. I don't know. 18 Q. Let's go to the second page. 19 A. Okay. 20 Q. Again, I'll ask you to look at that, the 21 second page, and identify if you can for us which 22 employees are no longer with Nissan. 23 A. Carlos Lopez. I don't think he works -- 24 he's not with us anymore. 25 Q. That's Carlos Lopez, L-o-p-e-z. Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 24 of 86 PageID: 163 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 21 (Pages 78 to 81) Page 78 1 A. Carlos Lopez. 2 Q. Right. 3 A. Alexander Shandor is no longer with us. 4 Q. Did he retire? 5 A. No. 6 Q. Or did he just leave? 7 A. He just left. 8 Q. Okay. His spelling is last name 9 S-h-a-n-d-o-r, Alexander. 10 A. Correct. Correct. Lisa Farrar is no 11 longer with us. She left. 12 Q. That's at the bottom of the page? 13 A. Correct. 14 Q. Farrar is F-a-r-r-a-r. 15 A. Correct. 16 Q. Anybody else you recognize? 17 A. No. That left, no. 18 Q. Okay. What about -- 19 A. Oh, Jennifer Chinco. She left. No, no, 20 that's not right. She's in the southeast region. 21 She's still with us. Yeah. 22 Q. Okay. Let me throw some names at you 23 from the second page. 24 A. Okay. 25 Q. Charles Petrusch, P-e-t-r-u-s-c-h. Do Page 79 1 you know -- 2 A. Okay. 3 Q. -- do you know if he's still there? 4 A. I think he recently retired. 5 Q. Michael Compton, C-o-m-p-t-o-n. 6 A. I don't know him. 7 Q. Madeleine Pullman, P-u-l-l-m-a-n. 8 A. She's still there. 9 Q. And you've identified Carlos Lopez as 10 having left. 11 A. Correct. 12 Q. And you identified Alexander Schandor. 13 A. Correct. 14 Q. As leaving. 15 A. Yes. 16 Q. How about Peter Orbe, O-r-b-e, is he 17 still there? 18 A. I think Peter left. 19 Q. How about, going down two lines from 20 there, Shenae Miller? Shenae is S-h -- 21 A. Shenae Miller. 22 Q. Shenae Miller. I bet your pardon. 23 S-h-e-n-a-e. Is she still there? 24 A. I think she's gone. 25 Q. And you've identified Lisa Farrar. Page 80 1 A. Correct. 2 Q. Let's go to the next page. Third page. 3 Why don't you try to identify -- 4 A. Okay. 5 Q. -- which employees you can -- off the top 6 of your head. 7 A. Right. 8 Q. And I'll help you out. 9 A. Steve Scott retired. I think Jack Taylor 10 retired. Josh Batie just left. 11 MR. ELLIS: I'm sorry. Josh who? 12 THE WITNESS: Batie. 13 MR. CHANG: B-a-t-i-e. 14 THE WITNESS: Correct. That's all 15 I can say for sure. 16 BY MR. CHANG: 17 Q. All right. Let me throw these names at 18 you. James Moore, M-o-o-r-e. 19 A. I don't know. 20 Q. Fred Banks, B-a-n-k-s. 21 A. He's still there. 22 Q. David Lee, L-e-e. 23 A. I don't know. 24 Q. James Dietz, D-i-e-t-z. 25 A. I don't know. Page 81 1 Q. Michael McGregor. 2 A. I don't know. 3 Q. And you've identified Steven Scott. You 4 identified -- did you identify Jack Taylor? 5 A. Yes. 6 Q. Mary Allen, A-l-l-e-n. 7 A. I don't -- I don't know. 8 Q. You identified Josh Batie. 9 A. Yes. 10 Q. And how about Kimberly Born, B-o-r-n? 11 A. I don't know. 12 Q. All right. Let's go to the next page. 13 This would be the fourth page although they're not 14 numbered, it would be the fourth page. Okay. 15 A. Rhonda Calico retired. 16 Q. The spelling of that last name is 17 C-a-l-i-c-o. 18 A. Erin Fisher left. 19 Q. All right. 20 A. Mary's still there. Ronald Gianettino, 21 is gone. He left. 22 Q. All right. Here, let me throw some other 23 names at you from this page. 24 A. Okay. 25 Q. At the top, Allison Speranzo. Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 25 of 86 PageID: 164 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 22 (Pages 82 to 85) Page 82 1 MR. ELLIS: Speranzo. 2 MR. CHANG: Speranzo, sorry. 3 Butchered that. 4 THE WITNESS: I don't know. 5 BY MR. CHANG: 6 Q. John Boydston. 7 A. I don't know. 8 Q. Steven Burack, B-u-r-a-c-k. 9 A. Steven Burack retired. 10 Q. You've identified Rhonda Calico. 11 A. Correct. 12 Q. How about Terrance Brualdi. 13 A. I don't know. 14 Q. That's B-r-u-a-l-d-i. 15 MR. ELLIS: Brualdi. 16 MR. CHANG: Brualdi. 17 BY MR. CHANG: 18 Q. Patrick Burns. 19 A. I don't know. 20 Q. Mark Dyslin. 21 A. I don't know. 22 Q. Erin Fisher. 23 A. I identified her. 24 Q. Kevin Fitzsimons. 25 A. I don't know. Page 83 1 Q. F-i-t-z-s-i-m-o-n-s. All right. Next 2 page, page five. We're at the fifth page. 3 A. Okay. Let's see. 4 Q. Only those who are no longer employed by 5 Nissan. 6 A. Okay. Janice Grossman passed away. 7 Q. Janice Grossman. Uh-huh. Okay. 8 A. That's all I know for sure. 9 Q. How about David Geigenmiller, 10 G-e-i-g-e-n-m-i-l-l-e-r. 11 A. I don't know. 12 Q. You already identified Janice Grossman. 13 Robert Metcalf, M-e-t-c-a-l-f. 14 A. I don't know about him. 15 Q. Toward the bottom of the page, Mark 16 Moore, M-o-o-r-e. 17 A. I don't know about him. 18 Q. William James. 19 A. I don't know. 20 Q. And, then, finally, at the bottom, Misti 21 Keon. 22 A. I don't know. 23 Q. K-e-o-n. Next page, sixth page. We're 24 almost done. 25 A. Yeah. Page 84 1 MR. ELLIS: You have four pages to 2 go. 3 MR. CHANG: What are you going to 4 do the rest of the afternoon? 5 THE WITNESS: Nick DiPietro no 6 longer works for us. 7 BY MR. CHANG: 8 Q. I'm sorry? 9 A. Nick DiPietro. 10 Q. Okay. 11 A. Donna Martinez passed away. Julie Ann 12 Frick left. 13 MR. ELLIS: I'm sorry. What was 14 the last name? 15 THE WITNESS: Julie Ann Frick 16 left. Dennis Meade retired. 17 MR. CHANG: Okay. 18 THE WITNESS: That's all I know. 19 BY MR. CHANG: 20 Q. All right. Back at the top of the page, 21 Todd Solan, S-o-l-a-n. 22 A. I don't know. 23 Q. You've already identified Ms. Lam, right, 24 Lam? 25 MR. ELLIS: I'm sorry. What was Page 85 1 -- Lam? 2 THE WITNESS: Who was that? 3 MR. ELLIS: I don't think she did. 4 MR. CHANG: No? 5 THE WITNESS: No. 6 BY MR. CHANG: 7 Q. Ana Maria -- see that, fourth person 8 down? 9 A. I see fifth person down. Okay. 10 Q. I'm sorry. Fifth person down. 11 A. Yeah. 12 Q. L-a-m. 13 A. I don't know her. 14 Q. Okay. You identified Nicholas DiPietro? 15 A. Correct. 16 Q. How about Blake Martini? 17 A. I don't remember if Blake left or not. 18 Q. Above that, Maria Martin you identified? 19 A. No, I did not. 20 Q. How about her? 21 A. Yes, she did. She did leave us. 22 Q. Going down toward the bottom of the page, 23 Julie Frick, F-r-i-c-k. 24 A. I did identify her. 25 Q. I'm sorry. I beg your pardon. And then, Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 26 of 86 PageID: 165 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 23 (Pages 86 to 89) Page 86 1 finally, Dennis Mead. 2 A. Yes. I identified him as well. 3 Q. Okay. Next page, please. 4 A. Okay. Kristen Hardin, she left. Joy Lee 5 left. Natalie Reif left. Mary Lynn Schmidt left. 6 Derek Robinson left. Robert Sourial left. 7 Q. Okay. 8 MR. ELLIS: Who was the last one? 9 THE WITNESS: Robert Sourial, one 10 from the bottom. 11 BY MR. CHANG: 12 Q. S-o-u-r-i-a-l. Okay. Let's go back to 13 the top. 14 A. Okay. 15 Q. Richard Montague. 16 A. I don't know him. 17 Q. You identified Romi Newton or did you 18 not? 19 A. No, I did not. 20 Q. Do you have any knowledge of that person? 21 A. I don't know if she left or not. I know 22 her name. 23 Q. Okay. How about Evan Leong? 24 A. I don't know. 25 Q. You already identified Joy Lee. Michael Page 87 1 Otani, O-t-a-n-i. 2 A. I don't know him. 3 Q. Did you identify Natalie Reif? 4 A. Yes. 5 Q. That's R-e-i-f. You identified 6 Ms. Schmidt, you identified Mr. Robinson, and you 7 identified Mr. Sourial. Okay. Next to last page. 8 A. Okay. 9 Q. Please. 10 A. Vincent Vitale left. Nancy Toft left. 11 William Ventresca left. Susan Walsh retired. 12 Marie Walter is still there. Jun Watanabe left. 13 That's all I know for sure. 14 Q. Okay. Back at the top of the page. Mark 15 Tueller, T-u-e-l-l-e-r. 16 A. I don't know him. 17 Q. You already identified Mr. Vitale. Did 18 you identify Nancy Toft, T-o-f-t? 19 A. Yes. 20 Q. Okay. Did you identify William 21 Ventresca? 22 A. Yes. 23 Q. Gilbert Huston? 24 A. I did not -- I don't know. 25 Q. H-u-s-t-o-n? Page 88 1 A. I don't know him. 2 Q. You identified Ms. Walsh. You identified 3 -- how about William Webb? 4 A. I don't know him. 5 Q. Landry Tidwell. 6 A. I don't know him. 7 Q. T-i-d-w-e-l-l. Michael Vogelsong, 8 V-o-g-e-l-s-o-n-g? 9 A. Yeah. I don't know him. 10 Q. And Billy Wagoner, W-a-g-o-n-e-r? 11 A. I don't know him either. 12 Q. Last page. Let's make it easy. Wayne 13 Wong? 14 A. Yep, he retired. 15 Q. Okay. 16 MR. CHANG: Let's take a break. 17 We're almost done. 18 (A break was taken.) 19 MR. CHANG: Just a few more 20 follow-up questions. 21 BY MR. CHANG: 22 Q. Ms. Ballard, you're still under oath. 23 Ms. Ballard, do you have possession of any 24 materials which were handed out during any of the 25 meetings which occurred regarding the initiative Page 89 1 during the time period June 2013 through April 2 2014? 3 A. No. No. 4 Q. Do you know who would have those 5 documents, those hand-outs, PowerPoints, whatever? 6 A. Everything I had, I handed over to legal. 7 Q. Do you know if anybody in HR would have 8 any of those handouts? 9 A. Wally Burchfield. 10 Q. During the time period June of 2013 11 through April 2014, did you ever see -- and this 12 is again with respect to the initiative, did you 13 ever see spreadsheets which have been prepared 14 containing information relating to the program? 15 A. Outside of this. 16 Q. You're referring to the -- to Plaintiff's 17 2, this document, the chart. 18 A. Outside of this, no. 19 Q. You didn't see other people who are 20 involved in the process working with the 21 spreadsheet, Excel sheets, things of that sort? 22 A. No. No. My part of it was limited. 23 Q. When you say you handed over materials to 24 legal, when you say legal, who are you referring 25 to? Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 27 of 86 PageID: 166 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 24 (Pages 90 to 93) Page 90 1 A. Mike Berger. 2 Q. So you're talking about internal legal 3 within Nissan as opposed to Mr. Ellis' firm? 4 A. Correct. 5 Q. Can you tell us as best as you can what 6 those documents consisted of? 7 A. This. 8 Q. You're pointing or indicating Plaintiff's 9 1 which is a package to Mr. McAvoy? 10 A. A package just like this for every 11 employee in the northeast region. 12 Q. And how many would that have been for the 13 northeast region? 14 A. Roughly 55 to 60 people. 15 Q. Okay. What else, if any? 16 A. That's it. 17 Q. Any other memoranda which have been 18 exchanged amongst the group or issued by 19 Mr. Burchfield? 20 A. Not that I remember, not that I recall. 21 Q. PowerPoint presentation, PowerPoints? 22 A. It wouldn't have been put in my 23 possession. I may have seen something, but I 24 don't have it. 25 Q. Okay. Page 91 1 A. I didn't own it. Mr. Burchfield would 2 have it. 3 Q. Charts? Okay. 4 A. No. 5 Q. And just going back to 2011 and your 6 conversations with Mr. Gilbert regarding 7 Mr. McAvoy's salary -- 8 A. Yes. 9 Q. -- in that time period and when you're 10 communicating with Mr. Gilbert about red circling, 11 Mr. McAvoy's or Mr. McAvoy's salary being red 12 circled, not you, because I got that distinction, 13 Ms. Ballard, you made that clear, did Mr. Gilbert 14 ever say to you that Mr. McAvoy wanted his salary 15 frozen because he was planning -- he was about to 16 turn 60 and that he just wanted to make sure that 17 everything stayed in place until he retired? 18 A. No. 19 MR. CHANG: Thanks for coming in. 20 I don't have any further questions. 21 Mr. Ellis may have some questions. 22 MR. ELIS: I have no questions. 23 (Proceedings concluded at 11:30 a.m.) 24 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 25 Page 92 1 CERTIFICATE OF DEPONENT 2 3 I hereby certify that I have read the 4 foregoing pages of my deposition testimony in 5 this proceeding, and with the exception of 6 changes and/or corrections, if any, find them to 7 be a true and correct transcription thereof. 8 9 __________________________________ 10 Deponent 11 12 __________________________________ 13 Date 14 15 NOTARY PUBLIC 16 Subscribed and sworn to before me this 17 ________ day of ___________________, 20___. 18 19 ________________________________________________ 20 Notary Republic 21 22 My Commission Expires:____________ 23 24 25 Page 93 1 ERRATA SHEET 2 3 PAGE -- LINE -- CORRECTION/REASON 4 5 ____ ____ _________________________________ 6 7 ____ ____ _________________________________ 8 9 ____ ____ _________________________________ 10 11 ____ ____ _________________________________ 12 13 ____ ____ _________________________________ 14 15 ____ ____ _________________________________ 16 17 ____ ____ _________________________________ 18 19 ____ ____ _________________________________ 20 21 ____ ____ _________________________________ 22 23 ____ ____ _________________________________ 24 25 ____ ____ _________________________________ Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 28 of 86 PageID: 167 Edith Ballard - September 28, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 25 (Pages 94 to 96) Page 94 1 ERRATA SHEET 2 3 PAGE -- LINE -- CORRECTION/REASON 4 5 ____ ____ _________________________________ 6 7 ____ ____ _________________________________ 8 9 ____ ____ _________________________________ 10 11 ____ ____ _________________________________ 12 13 ____ ____ _________________________________ 14 15 ____ ____ _________________________________ 16 17 ____ ____ _________________________________ 18 19 ____ ____ _________________________________ 20 21 ____ ____ _________________________________ 22 23 ____ ____ _________________________________ 24 25 ____ ____ _________________________________ Page 95 1 ERRATA SHEET 2 3 PAGE -- LINE -- CORRECTION/REASON 4 5 ____ ____ _________________________________ 6 7 ____ ____ _________________________________ 8 9 ____ ____ _________________________________ 10 11 ____ ____ _________________________________ 12 13 ____ ____ _________________________________ 14 15 ____ ____ _________________________________ 16 17 ____ ____ _________________________________ 18 19 ____ ____ _________________________________ 20 21 ____ ____ _________________________________ 22 23 ____ ____ _________________________________ 24 25 ____ ____ _________________________________ Page 96 1 STATE OF TENNESSEE ) 2 COUNTY OF DAVIDSON ) 3 4 I, Gina R. Hunter, Licensed Court Reporter 5 for the State of Tennessee, 6 7 DO HEREBY CERTIFY the foregoing proceedings 8 were taken at the time and place set forth in 9 the caption thereof; the witness therein was 10 duly sworn an oath to testify the truth; the 11 proceedings were stenographically reported by 12 me in shorthand; and the foregoing proceedings 13 constitute a true and correct transcript of 14 said proceedings to the best of my ability. 15 16 I FURTHER CERTIFY that I am not a relative 17 or employee or attorney or counsel of any of the 18 parties hereto, nor a relative or employee of 19 such attorney or counsel, nor do I have any 20 interest in the outcome or events of this 21 action. 22 23 _______________________________ 24 Gina R. Hunter, LCR # 639 25 Licensed Court Reporter Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 29 of 86 PageID: 168 EXHIBITB Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 30 of 86 PageID: 169 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting Page 1 U N I T E D S T A T E S D I S T R I C T C O U R T F O R T H E D I S T R I C T O F N E W J E R S E Y _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ P E T E R W . M C A V O Y , ) P l a i n t i f f , ) C i v i l A c t i o n N o . v s . ) 3 : 1 5 - C V - 0 6 8 2 4 - F L W - D E A N I S S A N N O R T H A M E R I C A , I N C , ) D e f e n d a n t . ) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ) D E P O S I T I O N O F W A L L Y B U R C H F I E L D S e p t e m b e r 2 7 , 2 0 1 6 C o m m e n c i n g a t 9 : 0 0 a . m . T h e d e p o s i t i o n o f W A L L Y B U R C H F I E L D , t a k e n o n b e h a l f o f t h e P l a i n t i f f , o n t h e 2 7 t h d a y o f S e p t e m b e r , 2 0 1 6 , i n t h e O f f i c e s o f L i t t l e r M e n d e l s o n , 3 3 3 C o m m e r c e S t r e e t , S u i t e 1 4 5 0 , N a s h v i l l e , T e n n e s s e e 3 7 2 0 1 , f o r a l l p u r p o s e s u n d e r t h e F e d e r a l R u l e s o f C i v i l P r o c e d u r e . Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 31 of 86 PageID: 170 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 2 (Pages 2 to 5) Page 2 1 A P P E A R A N C E S : 2 3 For the Plaintiff: 4 CHRISTOPHER E. CHANG, ESQ 5 NIEDWESKE BARBER HAGER, LLC 6 98 Washington Street 7 Morristown, New Jersey 07960 8 212.208.1470 9 cechang@juno.com 10 11 For the Defendant: 12 EDWARD T. ELLIS, ESQ 13 LITTLER MENDELSON, P.C. 14 1601 Cherry Street, Suite 1400 15 Philadelphia, Pennsylvania 19102 16 267.402.3008 17 eellis@littler.com 18 19 20 Also Present: 21 Katherine Knight 22 Mike Berger 23 24 25 Page 3 1 I N D E X 2 3 WITNESS: WALLY BURCHFIELD: 4 5 INDEX OF EXAMINATIONS 6 Page 7 By Mr. Chang ......................... 5 8 ********** 9 10 11 INDEX OF EXHIBITS 12 Page 13 Exhibit No. 1 ROI 39 14 Exhibit No. 2 Document 76 15 (Exhibits retained by Counsel) 16 ********** 17 18 19 20 21 22 23 24 25 Page 4 1 The deposition of WALLY BURCHFIELD, 2 taken on behalf of the Plaintiff, on the 3 27th day of September, 2016, in the Offices of 4 Littler Mendelson, 333 Commerce Street, Suite 5 1450, Nashville, Tennessee 37201, for all 6 purposes under the Federal Rules of Civil 7 Procedure. 8 9 The formalities as to notice, caption, 10 certificate, et cetera, are waived. All 11 objections, except as to the form of the 12 questions, are reserved to the hearing. 13 14 It is agreed that Gina R. Hunter, 15 being a Licensed Court Reporter for the 16 State of Tennessee, may swear the witness, 17 and that the reading and signing of the 18 completed deposition are not waived. 19 20 21 22 23 24 25 Page 5 1 WALLY BURCHFIELD, 2 having first been duly sworn or affirmed, 3 testified as follows: 4 EXAMINATION 5 BY MR. CHANG: 6 Q. Can you please state your full name? 7 A. Walter H. Burchfield, Jr,. 8 Q. Mr. Burchfield, my name is Christopher 9 Chang. I am going to be asking you some questions 10 in connection with a lawsuit that Peter McAvoy, an 11 employee of Nissan has commenced against Nissan. 12 Have you ever testified before? 13 A. I have. 14 Q. On how many different occasions? 15 A. I'd say less than seven; none employment. 16 Q. And of those seven occasions, were some 17 of those at a trial? 18 A. Yes. 19 Q. And about how many of those? 20 A. One. 21 Q. And the remainder were in depositions; am 22 I correct? 23 A. Yes, sir. 24 Q. Okay. Let me just review with you some 25 very simple rules, just to move this along, Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 32 of 86 PageID: 171 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 3 (Pages 6 to 9) Page 6 1 because I know you're busy, and my wife has some 2 things planned for me this afternoon. The first 3 thing is we can't talk at the same time, because 4 this young lady here can't take down two people 5 talking at the same time. If at any time you 6 don't understand my question, and that may happen 7 often, just say so, and I'll either have the 8 stenographer read back the question, or I'll ask 9 the question in a manner that hopefully you will 10 understand. The stenographer cannot take nods of 11 the head, or "uh-huh". You have to verbally 12 answer questions. Do you understand that? 13 A. Yes, I do. 14 Q. Okay. I'm going to ask you just some 15 preliminary questions, and then we'll get going. 16 Are you on any medication that you think would 17 affect your testimony today? 18 A. No. 19 Q. Have you done anything to prepare for 20 this deposition? 21 A. I've reviewed documents that were 22 provided by my legal team. 23 Q. And when you say your legal team, that's 24 Mr. Ellis' team? 25 A. Yes. Page 7 1 Q. And do you recall what kind of documents 2 you reviewed? 3 MR. ELLIS: Well, I'm going to 4 object and instruct him not to answer, 5 because you're not allowed to know what I 6 select to give him. 7 BY MR. CHANG: 8 Q. Well, let me ask you this question: Do 9 you know if the plaintiff in this action, 10 Mr. McAvoy, gave a deposition? 11 A. I was told he did. 12 Q. Don't tell me who told you that. And 13 prior to today, have you read the transcript of 14 that deposition? 15 A. I have not. 16 Q. And before coming in here today, did you 17 discuss with anybody the fact that you would be 18 appearing for your deposition in connection with 19 this case? 20 A. Yes. 21 Q. Who'd you speak to -- without telling me 22 what you said, but who did you speak to? 23 A. My counsel. 24 Q. Anybody who was not a lawyer? 25 A. No. Page 8 1 Q. Such as your supervisor? 2 A. No. 3 Q. Any colleagues? 4 A. No. 5 Q. All right. Mr. Burchfield, did you 6 attend college? 7 A. Yes, I did. 8 Q. And where was that, sir? 9 A. Northwood University based in Midland, 10 Michigan. 11 Q. And did you graduate from Northwood? 12 A. Yes, I did. 13 Q. When was that, sir? 14 A. 1996. 15 Q. What was your degree in there? 16 A. Business administration. 17 Q. Did you attend Northwood continuously for 18 four years with the exception of vacations and 19 things of that sort? 20 A. I did not. 21 Q. Did you attend other colleges or college- 22 level places before Northwood? 23 A. Yes, I did. 24 Q. What were those places? 25 A. Memphis State University. Page 9 1 Q. And what years was that? 2 A. 1979 through 1992. 3 Q. Are you married? 4 A. Yes, I am. 5 Q. Do you have any children? 6 A. Yes, I do. 7 Q. How many? 8 A. Four. 9 Q. Give me their ages, please. 10 A. The oldest is 31; the next oldest is 27; 11 the next oldest is 21; and the youngest is 17. 12 Q. That's terrific. Congratulations. After 13 graduating from Northwood, why don't you tell us 14 in chronological order following graduation to the 15 present, your various professional experience? 16 A. I finished Northwood University in 1996. 17 I was a senior manager level employee at General 18 Motors Corporation in the finance and insurance 19 side of the business. 20 Q. When did you start at General Motors? 21 A. In 1987. 22 Q. '87? 23 A. 1987. 24 Q. Okay. Was that before you went to 25 Northwood? Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 33 of 86 PageID: 172 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 4 (Pages 10 to 13) Page 10 1 A. Yes. 2 Q. Okay. And where were you stationed, or 3 where was your office located? 4 A. I started in Memphis, Tennessee. 5 Q. And what were your duties and 6 responsibilities? 7 A. My initial assignment was a field claims 8 adjustor. 9 Q. And how long did you do that for? 10 A. About a year and a half, maybe two years. 11 Q. What'd you do after that? 12 A. I moved into a different level of fund 13 adjustor, and then I proceeded to other career 14 moves within the company. 15 Q. Why don't you walk me through everything 16 that you did at GM? 17 A. So General Motors -- I worked for Motors 18 Insurance Corporation, which is a subsidiary of 19 GMAC inside the corporation. 20 Q. Can you attach some years to those 21 things? 22 A. Yeah, so I started at the end of '87, 23 first of '88. I did a field job in claims 24 adjusting, and moved to Detroit in 1990. I moved 25 into the role that was still claims adjusting, but Page 11 1 at a national level. In 1993 I moved to Toronto, 2 Canada and was the assistant control branch 3 manager for the insurance operation in Canada. 4 Q. This is still under the umbrella of 5 General Motors? 6 A. Yes, still under the umbrella of General 7 Motors. 8 Q. Okay. 9 A. In 1995, I returned to the U.S. I ran a 10 restructuring project at that point on the 11 insurance business. 12 Q. Where in the U.S.? 13 A. Detroit. That was based in Detroit. 14 Q. And was it during that time that you were 15 attending Northwood? 16 A. Yeah. When I came back I finished my 17 degree at Northwood University. 18 Q. Did you matriculate full time, or were 19 you doing that part time? 20 A. No, I did that part time. So I worked 21 full time, and did that on weekends. 22 Q. Okay. So we're back in Detroit. 23 A. Back in Detroit. I worked in that job 24 until 1997, and moved to corporate sales service 25 staff in a role around sales and marketing, and Page 12 1 became head of the warranty operation for North 2 America. 3 Q. And geographically you were still in 4 Detroit? 5 A. Still in Detroit. 6 Q. And you were still under the umbrella of 7 General Motors? 8 A. Still under the umbrella of General 9 Motors. From the warranty job, then I moved into 10 a sales job for the corporation, so like an area 11 zone manager based there -- same telemanagement, 12 so I lived there, traveled out. 13 Q. And what years were those? 14 A. That was through -- so I did that from 15 '98, '99, and then in 2000 I moved to corporate 16 staff as a senior staff leader for the executive 17 VPs running the corporation, so kind of a staff 18 role. 19 Q. So that was 1998? 20 A. So it was '98, '99, and then in 2000 I 21 moved to the corporate staff role. I was in that 22 role until the end of 2002 when I moved to the 23 west coast, moved to southern California, and for 24 the first year out there I was the west coast 25 director of service for General Motors Page 13 1 Corporation, so I ran service. And then in 2004 I 2 became the head of Pontiac-Buick-GMC Sales and 3 Marketing. I did that role until 2005 or 4 mid-2005. 5 Q. Let me stop you there. What were your 6 duties and responsibilities as regional -- for 7 Buick-Pontiac? 8 A. For Buick-Pontiac-GMC, I was responsible 9 for sales and marketing of our products through 10 the dealer network on the west coast. 11 Q. And, again, were you stationed in 12 Detroit? 13 A. No, no. Once I moved to California, I 14 was in California. So when I moved there at the 15 end of 2002, I was in the west region regional 16 office. I ran service, and then I switched to the 17 Pontiac-Buick-GMC job. 18 Q. And during that tour of duty for Buick- 19 Pontiac-GMC, how many direct reports, if any, did 20 you have? 21 A. Let me think about that. Direct reports 22 would have been probably less than 7 or 8. I mean 23 they're big staffs, so it's direct reports. 24 Q. Right. And in total, how many people 25 would you be responsible for? Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 34 of 86 PageID: 173 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 5 (Pages 14 to 17) Page 14 1 A. It would have been probably sub-60. 2 Q. 6-0? 3 A. 6-0, yeah. Big field organization. 4 Q. Right. And after Buick-Pontiac-GMC? 5 A. Then I relocated to Dallas, Texas to the 6 central region. So these are different regions. 7 So as a Regional Operations manager -- that's 8 director of Regional Operations -- so much more of 9 an administrative operations role. I did that for 10 a year, so I did that from mid-2005 or mid-2006, 11 or actually only for about nine months because in 12 April 2006 I became the regional Sales and 13 Marketing manager for the premium brands for that 14 region, which would include Cadillac, Hummer, 15 Saab, and also I had oversight over Saturn. 16 Q. Okay. Let's go back to Dallas, when you 17 were there for approximately one year from I guess 18 in or about May 2005 to April 2006. How many 19 direct reports did you have then? 20 A. It still would have been -- it was an 21 executive level -- direct reports would have been 22 maybe 6 or 7. I'd have to go back and pull out 23 our charts. 24 Q. No, that's all right. Just approximate 25 would be fine. And during that time period, tour Page 15 1 duty in Dallas, how many people total would you 2 say were under your umbrella? 3 A. So in the Regional Operations manager 4 job, it would have been sub-30, and then when I 5 moved to the premium job, it was still in Dallas. 6 So those two were Dallas. 7 Q. Okay. And how long were you in the 8 premium brands? 9 A. Premium brands from early 2006 until I 10 hired on at Nissan in June of 2007. 11 Q. Okay. So you were in that position in 12 premium brands for -- 13 A. About a year, year and a half. 14 Q. Okay. And when did you go to Nissan? 15 A. June of 2007. 16 Q. How'd you get to them? 17 A. External recruiting. 18 Q. And the position that you joined Nissan 19 with was what? 20 A. I was a regional vice president for the 21 northwest region, based out of Pleasanton, 22 California. 23 Q. At that time, when you became a regional 24 vice president for Nissan, how many regional vice 25 presidents did Nissan have, if you know, total? Page 16 1 A. Seven. 2 Q. And what region did you cover? 3 A. The northwest region. 4 Q. And what states or geographical area does 5 that include? Obviously it's the northwest of the 6 United States. 7 A. Yeah, and at that time it was northern 8 California; it was northern Nevada; it was Utah, 9 Colorado, Idaho, Montana, Washington, Oregon, 10 Alaska, and the islands. 11 Q. Was that one of the biggest regions for 12 Nissan at the time? 13 A. It was not. 14 Q. Which one was the largest, if you recall; 15 this would again be in 2007? 16 A. I don't know that I know which one was 17 the biggest. I guess it would depend on how you 18 judge big. 19 Q. Sales. 20 A. So you probably balance between the 21 southeast and the northeast, as well as the 22 central region. Three big regions. 23 Q. Okay. Did your position change 24 thereafter? 25 A. Yes. That regional office -- I stayed in Page 17 1 that regional office until it closed. 2 Q. Then what happened? 3 A. I became the regional vice president of 4 the midwest region which was in Chicago. 5 Q. Did you move to Chicago? 6 A. Yes, I did. 7 Q. And what areas or states did the midwest 8 region include, Mr. Burchfield? 9 A. Minnesota down through eastern Missouri, 10 across through northern Kentucky, up through 11 Pittsburgh. So if you look at the rust belt would 12 be the way I would describe it -- rust belt 13 states. 14 Q. How long did you maintain that position? 15 A. From April of 2009 until May of 2011. 16 Q. In May 2011 did there come a change in 17 your position at Nissan? 18 A. Yes. 19 Q. What was that change, sir? 20 A. I became the director of Business 21 Planning and Product Development for the 22 Aftersales division at headquarters here in 23 Franklin, Tennessee. 24 Q. Would that change from regional vice 25 president to director of Business Development and Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 35 of 86 PageID: 174 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 6 (Pages 18 to 21) Page 18 1 Business Planning, would that be considered a 2 lateral move, or a promotion? 3 A. It was a lateral move. 4 Q. And was that asked of you to make the 5 lateral move, or did you seek the lateral move? 6 A. It was offered, and I accepted. 7 Q. Was there a pay difference when taking 8 that position? 9 A. There was not. 10 Q. And so why'd you do it? 11 A. Development. 12 Q. Do you mean expanding your skills within 13 Nissan? 14 A. Yeah. Career development inside the 15 company. 16 Q. Now in that position, how many direct 17 reports did you have? 18 A. Four direct reports. 19 Q. And in total, how many people would you 20 be responsible for in that position of director of 21 Business Development? 22 A. Less than 40 in that group. 23 Q. Now, as compared with being a regional 24 vice president, did you -- in the chain of 25 command, is the reporting structure different for Page 19 1 regional vice presidents as distinct from the 2 position of director of Business Development? 3 MR. ELLIS: Object to the form of 4 the question. 5 BY MR. CHANG: 6 Q. As regional vice president, who did you 7 report to? 8 A. The vice president of Sales. 9 Q. And who did he or she report to? 10 A. The senior vice president of Sales. 11 Q. And as director of Business Development, 12 when you held that position beginning in or about 13 May of 2011, who did you report to? 14 A. The vice president of Aftersales. 15 Q. And were both of those vice presidents on 16 the same level in terms of the organization chart, 17 to the best of your knowledge? 18 A. To the best of my knowledge. 19 Q. How long did you maintain that position, 20 director of Business Development? 21 A. Until February of 2013. 22 Q. And what was the change then? 23 A. I rotated to director of HR for the U.S. 24 Q. Now, in looking at Nissan's website, it 25 refers to itself as "Nissan North America." Is Page 20 1 Nissan North America, is that the United States, 2 or does that include Canada, Mexico, do you know? 3 A. It's a technical answer, because the 4 company is a subcompany of a parent company in 5 Japan. So, NNA or Nissan North America, has a lot 6 of connotations. Whether you're talking 7 manufacturing, it might include two countries; 8 sales and marketing, it might be three countries; 9 so it depends on the specifics of the question. 10 Q. I got it. But as director of HR for 11 Nissan North America, were you the head human 12 resource person for Nissan North America? 13 A. No. 14 Q. Who was the head HR person for Nissan 15 North America in or about February of 2013? 16 A. It was the vice president of HR. 17 Q. And who was it at that time; again it's 18 February 2013? 19 A. Mark Stout. 20 Q. Could you spell that last name, if you 21 can? 22 A. S-T-O-U-T. 23 Q. And what were your duties and 24 responsibilities as director of HR? 25 A. My technical title was director of HR Page 21 1 Business Partner, and so the traditional HR role. 2 Q. You used, or put out that term "HR 3 Business Partner." Is that something unique to 4 Nissan? 5 A. I'm not a life-long HR person, so I don't 6 know whether it's unique to Nissan or not, but 7 it's what we used. 8 Q. Okay. And as the director of HR Business 9 Partner, in that position how many people did you 10 have reporting to you during that time period? 11 A. Direct reports or total? 12 Q. Direct reports. 13 A. Direct reports -- four. 14 Q. Can you identify them for me, please? 15 A. Dave Oberstadt, Jim Papalexis; I'm trying 16 to think of the young lady's name. I apologize. 17 Q. Edith Ballard? 18 A. She worked for one of these managers. 19 Q. So there was a layer of reporting between 20 you -- 21 A. Yeah. She did not direct report to me. 22 Q. Okay. Why don't we do this? Let's leave 23 this space in the record and you can provide that 24 later. 25 A. We'll come back to it later. Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 36 of 86 PageID: 175 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 7 (Pages 22 to 25) Page 22 1 Q. And then there was a fourth one on your 2 list. 3 A. The fourth one was Greg Ramsey in an 4 indirect reporting. 5 Q. Okay. How long were you director of HR 6 Business Partners? 7 A. From February of 2013 until April of 8 2015. 9 Q. Was this position offered to you, or did 10 you seek it out? 11 A. It was offered to me. 12 Q. And why did you take it? Withdrawn -- 13 let me withdraw that. Was that position 14 considered, by you, to be a promotion or a lateral 15 move? 16 A. Lateral move. 17 Q. I'll come back to the question I posed 18 before that. Why did you take the position? 19 A. Developmental. 20 Q. At the time that you took this position, 21 who did Mr. Stout report to, if you know? 22 A. I believe Scott Becker. 23 Q. Who is he? 24 A. He's the senior vice president of Admin 25 and Finance. Page 23 1 Q. And who would Mr. Becker, at that time, 2 report to? 3 A. The chairman, at that time. 4 Q. And who was that? 5 A. At that time I believe it was Bill 6 Krueger, but I may be wrong. 7 Q. Can you describe your duties and 8 responsibilities, as you understood them, as 9 director of HR in February of 2013? 10 A. To perform the normal duties of employee 11 management, organizational development, review of 12 HR policies dealing with normal HR instances and 13 issues of employees. 14 Q. How long did you hold that position for, 15 Mr. Burchfield? 16 A. As I reported earlier on the statement, 17 from February of '13 to April of 2015. 18 Q. During that tenure, were you based in 19 Franklin, -- 20 A. Yes, I was. 21 Q. -- or Nashville? 22 A. At headquarters, yes. 23 Q. There came a change in or about March of 24 2015? 25 A. April of 2015. Page 24 1 Q. April 2015. And what was that change, 2 sir? 3 A. I rotated back to the business and became 4 the vice president of Aftersales. 5 Q. And is that the position you presently 6 hold? 7 A. It is. 8 Q. And what are your duties -- excuse me, 9 withdrawn. Who do you report to in this position 10 that you presently hold? 11 A. The senior vice president of Nissan. 12 Q. And who is that? 13 A. Christian Meunier. 14 Q. And what is his title? 15 A. Senior vice president of Nissan. 16 Q. And who does he report to? 17 A. The chairman. 18 MR. ELLIS: Do you want to spell 19 that last name for the court reporter? 20 THE WITNESS: M-e-u-n-i-e-r. 21 BY MR. CHANG: 22 Q. What are your duties and responsibilities 23 as vice president of Aftersales for Nissan North 24 America? 25 A. I have a responsibility to run the Page 25 1 business function which would be considered like 2 an internal P&L, so it's a revenue profit. It's 3 responsible for all the accessory to business for 4 Nissan North America, as well as serving consumers 5 with parts and service needs through our dealers 6 after they purchase a car. 7 Q. How many direct reports do you have? 8 A. Today? Five. 9 Q. And in total, how many people would you 10 say come under your umbrella? 11 A. Directly on my head count is 174. 12 Q. I believe you testified that when you 13 took the position of director of HR, it was 14 offered to you. Who offered that, or was it a 15 group that offered that position to you? 16 A. The vice president of HR offered the job. 17 Q. That'd be Mr. Stout? 18 A. Yes, that would. 19 Q. Okay. And how did that come about? 20 A. I guess it was an opportunity for 21 development. I think the company wanted to see me 22 take a different role, so it was offered, and so I 23 accepted. 24 Q. Was it Mr. Stout's decision to offer it 25 to you, or do you know if it was done by a Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 37 of 86 PageID: 176 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 8 (Pages 26 to 29) Page 26 1 committee of senior management? 2 A. I don't know where that comes from. I'm 3 just on the receiving end of the offer. 4 Q. Okay. And when you went from director of 5 Business Development to director of HR, again you 6 testified that you believe that it was a lateral 7 as opposed to a promotion? 8 A. It was a lateral. 9 Q. Okay. In the movement from director of 10 HR to vice president of Aftersales, would you 11 consider that to be a promotion or a lateral move? 12 A. That's a promotion. 13 Q. And where do you go after being vice 14 president of Aftersales? 15 A. You would have to ask the corporation 16 that question. 17 Q. That's a good answer; I like that. And 18 in moving from director of Business Development to 19 director of HR as a lateral move, were there any 20 changes in your salary. Did it get bumped up? 21 Any extra benefits, car, airplane? 22 A. Can you restate the question again? 23 Q. Let me ask it again: When you moved from 24 director of Business Development to the director 25 of HR position, you said you considered it a Page 27 1 lateral move, but were there any changes in your 2 salary? Did it increase? 3 A. No, it did not? 4 Q. Any additional perks? 5 A. No, there were none. 6 Q. How about moving from director of HR to 7 vice president of Aftersales? 8 A. Yes. 9 Q. Increase in salary? 10 A. Yes. 11 Q. I don't want to know that, but anything 12 else? 13 A. Increase in bonus. 14 Q. Bonus is based upon? 15 A. Performance. 16 Q. Performance -- pure performance? 17 A. Yes. 18 Q. Okay. Were there performance incentives 19 when you held the position of director of HR? 20 A. Yes. 21 Q. What were those bonus incentives? How 22 were they measured, if you know? 23 A. Objectives set aside on an annual basis, 24 and did you hit those targets or objectives. 25 Q. In that position of HR, what would those Page 28 1 targets have been? 2 A. A variety, but similar to managing 3 turnover, not letting it get out of control. It 4 can be various projects that you're assigned. 5 Q. Would it also include maintaining 6 salaries on an efficient basis? 7 MR. ELLIS: Object to the form of 8 the question. 9 BY MR. CHANG: 10 Q. Do you understand the question? 11 A. I do. 12 Q. Okay. You can answer. 13 A. Compensation was not my responsibility. 14 Q. Whose responsibility was compensation at 15 the time you were HR director? 16 A. Tracy Jones. 17 Q. And what was her title? 18 A. I believe it's director of Total 19 Benefits, but I may be wrong. I'm not sure of the 20 exact title. 21 Q. Just for the record, is it Tracy, 22 T-R-A-C-Y, or -I? 23 A. Y. 24 Q. Does she still maintain the same 25 position? Page 29 1 A. To the best of my knowledge, yes. 2 Q. And to the best of your knowledge, what 3 were her duties and responsibilities in terms of 4 HR and Compensation? 5 A. I couldn't address her specific duties 6 other than I know she's over Compensation and over 7 Benefits, so health plans, things like that; but 8 specifics, I couldn't tell you. 9 Q. Okay. And how long has she maintained 10 that position, if you know? 11 A. I don't know. 12 Q. Is she stationed -- I always use 13 military-type terms -- is she stationed in 14 Franklin at headquarters? 15 A. Yes, she is. 16 Q. Going back to you, Mr. Burchfield, can 17 you tell us what, if any, type of training you've 18 had in Human Resources? 19 A. None. 20 Q. Have you had any informal training? 21 A. Yes. 22 Q. Okay. On-the-job training would it be 23 fair to say? 24 A. Both on the job as well as some minimal 25 training around rules, engagement, normal policy Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 38 of 86 PageID: 177 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 9 (Pages 30 to 33) Page 30 1 stuff, but minimal training. 2 Q. When you were offered this position of HR 3 by Mark Stout, did he say to you, in words and 4 substance, why it was offered to you? 5 A. I think it was an opportunity from a 6 development standpoint. I mean Nissan likes to 7 rotate executives for experience. 8 Q. When you took the position in or about 9 February 2013, were you aware that Nissan would be 10 putting into place initiatives to restructure 11 salaries of employees? 12 A. Salaries of employees, no. 13 Q. Have you ever heard the term "regional 14 optimization initiative"? 15 A. Yes, I have. 16 Q. And when is the first time you ever heard 17 that term? 18 A. Approximately February of 2014. 19 Q. And how did you first learn of that term? 20 Withdrawn. What do you understand that term to 21 mean? 22 A. It was the title of an initiative. 23 Q. And I'll go back to the question I 24 previously posed to you. What did you learn that 25 program or initiative was? Page 31 1 A. It's the title of a program to do 2 restructuring in the field organization. 3 Q. And how did you learn of the initiative? 4 A. I was a part of the initiative. 5 Q. Now when you say you were "a part of the 6 initiative," can you explain what you mean by 7 that? 8 A. As the director of HR, one of the 9 projects I had responsibility for was to conduct 10 and facilitate the restructuring of the field 11 organization. 12 Q. Now again, let's go back to when you 13 first took the position in or about February of 14 2013. Were there any discussions prior to you 15 taking the position that there would be this 16 restructuring initiative undertaken by Nissan 17 North America? 18 A. There was a discussion about the 19 potential to study it. 20 Q. And when did that first occur, to the 21 best of your knowledge? 22 A. I'm sorry. Clarify the question. 23 Q. You testified that there were discussions 24 about it. When did those discussions first come 25 to your knowledge, or awareness? Page 32 1 A. January of 2013. 2 Q. How. 3 A. In my discussions about taking the role, 4 what would be some of the expectations of me? 5 Q. And were those discussions with 6 Mr. Stout? 7 A. Yes. 8 Q. Were there any other senior management 9 people present, such as regional vice presidents 10 or people above? 11 A. No. 12 Q. What did he say to you, and what did you 13 say to him when he told you about it? 14 A. My recollection was that it was an 15 interesting need, and that I was interested in 16 participating in the project. 17 Q. Now, did he use the word "restructuring," 18 or did he use some other word to describe what may 19 have been implemented? 20 A. "Restructuring" is my term. I don't know 21 that I recall what his term was, but it seemed 22 like an initiative that we needed to change the 23 organization. 24 Q. In what fashion, to the best of your 25 knowledge, Mr. Burchfield? Page 33 1 A. To move empowerment back to the field 2 organization, to unlock the power of the regions. 3 I'm talking in car terminology here maybe, but to 4 shift some authority, and control, and more local 5 oversight of their business back to the regions 6 versus at headquarters. 7 Q. And was this restructuring also -- did it 8 include an examination of salaries of Nissan North 9 America employees? 10 A. Compensation bonus structure was examined 11 -- bonus structure. 12 Q. When you say examined, what do you mean 13 by that? 14 A. A study was conducted to look at bonus 15 structures, not compensation, but bonus 16 structures. 17 Q. When you say study, what do you mean by 18 that? 19 A. The compensation group went and did their 20 own benchmarking for bonus structures. 21 Q. Do you know when that was done? 22 A. It would have been done late 2013. I 23 don't know the specifics, because I didn't do the 24 study, but I would think late 2013. 25 Q. And would that study have been done in Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 39 of 86 PageID: 178 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 10 (Pages 34 to 37) Page 34 1 the department headed by Ms. Jones? 2 A. Yes. 3 Q. And do you know if that study resulted in 4 a written document? 5 A. I would assume, but I didn't conduct the 6 study, so I don't know how it was recorded. 7 Q. So would it be fair to say, 8 Mr. Burchfield, that the order, or the direction 9 for this study to come didn't come from you, but 10 it came from some place above you? 11 A. The request for the study came from me. 12 Q. And was the request made by you made at 13 the direction of somebody that you reported to, 14 such as Mr. Stout? 15 A. No. 16 Q. Who did it come from? 17 A. Me. I led the project. 18 Q. And what was the impetus for you to 19 request that a study of compensation be done? 20 MR. ELLIS: Object to the form of 21 the question. 22 BY MR. CHANG: 23 Q. Do you understand the question? 24 A. Please repeat it. 25 Q. Okay. You've testified, I believe, that Page 35 1 you requested that the study on compensation be 2 conducted; is that correct? 3 A. That's incorrect. 4 Q. I'm sorry. Why don't you give me the 5 correct answer? 6 A. I instructed a study be done on the bonus 7 structure for the field employees. That's 8 completely different than compensation. 9 Q. Got it. Let's focus on that first. And 10 when did you make that request? 11 A. Sometime in mid-2013. 12 Q. And was this request to examine the bonus 13 structure, was this your own initiative, or did 14 somebody ask you to do that? 15 A. It was my initiative. 16 Q. And why'd you do that? 17 A. As a part of a project that we were 18 working on to look at re-empowering the field 19 organization. Bonus elements are what motivates 20 performance, so it was deemed that we should at 21 least review it, from my perspective. 22 Q. So that request goes to Ms. Jones? 23 A. Yes. 24 Q. And do you know what she did in 25 compliance with your request that an examination Page 36 1 be conducted? 2 A. I saw a result. They went and did the 3 study and brought the study back, so I don't know 4 the details of what they did. 5 Q. And when did that study get back to you? 6 A. I want to say late 2013. I don't know 7 the specific dates. 8 Q. Was that study memorialized in one 9 document, or was it a series of documents? 10 A. I saw it in presentation form, so I don't 11 know how it was memorialized. 12 Q. There was an oral presentation made by 13 Ms. Jones? 14 A. An oral presentation. 15 Q. PowerPoints? 16 A. PowerPoints. 17 Q. Charts? 18 A. Yes. 19 Q. Was there accompanying source material? 20 A. I don't think I saw the source material. 21 There could have been, but I didn't produce it. 22 Q. And were there findings made as a result 23 of that study? 24 A. Yes. 25 Q. What were those findings, to the best of Page 37 1 your recollection, Mr. Burchfield? 2 A. To the best of my knowledge, the findings 3 recommended that we enhance the bonus recognition 4 for performance for certain positions in the field 5 organization. 6 Q. Now, when we're talking about bonus 7 incentive, are we talking about bonus incentive 8 for sales folks? 9 A. Sales, service, yes. 10 Q. So this was across the board for Nissan 11 North America? 12 A. The U.S. Nissan division. 13 Q. Okay. It didn't involve folks in the Far 14 East? 15 A. No, no, no. U.S. borders only. 16 Q. Just U.S. only? 17 A. U.S. borders only, yes. 18 Q. Just to make it clear, this was not a 19 bonus examination just for sales people? It was 20 for parts and service? 21 A. It was for the field organization. 22 Q. Field organization. Okay. And were 23 there any other findings? 24 A. Not that I can recall. I mean it was 25 performance-based stuff. Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 40 of 86 PageID: 179 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 11 (Pages 38 to 41) Page 38 1 Q. And when you say, I think you used the 2 word bonus enhancement; is that correct? 3 A. Yes, I did. 4 Q. What do you mean by that? 5 A. As a sales organization, we recognize 6 performance quarterly from a bonus perspective, 7 and we do it annually. And this was around the 8 quarterly bonus perspective. And based on 9 performance attainment, people could get bonuses 10 per quarter, and the recommendation was to raise 11 that amount for different levels. 12 Q. Do you recall if that study made any 13 recommendations with respect to salaries? 14 A. To the best of my knowledge it did not. 15 Q. Do you have a recollection if the study, 16 in making the recommendation of bonus 17 enhancements, also recommended that salaries be 18 lowered because of the upside on the bonus 19 incentives? 20 A. Not related to the bonus. The bonus 21 study was for bonus. 22 Q. During this time period, did you ask 23 Ms. Jones or anybody else to conduct a study on 24 the salaries of Nissan North America employees? 25 A. Not a compensation study, no. Page 39 1 Q. Do you know if a compensation study was 2 done during this time period, irrespective of 3 whether you asked for it or not? 4 A. Not that I'm aware of. 5 Q. But if such a compensation study would 6 have been conducted, would that have been 7 conducted by Ms. Jones and her department? 8 A. Yes, to the best of my knowledge. 9 Q. Did she also report to Mr. Stout at this 10 time? 11 A. Yes, she did. 12 Q. Would you and her be on the same level in 13 terms of reporting? 14 A. Yes. 15 MR. CHANG: Why don't we have this 16 document marked as Plaintiff's 1 for 17 Identification? Just for the record, it's 18 a multi-page document. The cover page says 19 "Nissan North America Inc." It's dated 20 April 8th, 2014. There's several pages 21 attached to it. 22 (WHEREUPON, the above-mentioned 23 document was marked as Exhibit No. 1.) 24 BY MR. CHANG: 25 Q. Mr. Burchfield, I've handed you what we Page 40 1 call Plaintiff's 1 for Identification, and ask you 2 if you recognize it? 3 A. Can I look at all the -- 4 Q. Absolutely; absolutely; we're not here to 5 trick you. Not yet anyway. 6 A. Yes, I recognize it. 7 Q. And what do you recognize this document 8 to be? Again, it's Plaintiff's 1 for 9 Identification. 10 A. The opening letter is a letter to 11 employees related to what I will call ROI, 12 Regional Optimization Initiative, signed by, at 13 that time the senior vice president of Nissan. 14 Q. That's Fred Diaz? 15 A. At that time, yes. 16 Q. And was Mr. Diaz also stationed in 17 Franklin? 18 A. Yes, he was. The second document was a 19 personalized letter -- and actually there's 20 Tracy's title, director of Total Rewards. Sorry, 21 that was all her title -- 22 Q. That's all right. 23 A. -- which would have been sent to any 24 employee that had a salary adjustment during this 25 period. The third document, which was also a Page 41 1 personalized document, was also related to the 2 Regional Optimization ROI Initiative, and it was 3 the letter acknowledging what position was being 4 offered the employee as part of the Initiative. 5 And the remaining document is an ROI Regional 6 Optimization Initiative question and answers for 7 employees that were affected by this. 8 Q. Now, in looking at this document, does it 9 reflect your recollection when ROI -- and we're 10 going to use that acronym just to make it -- or 11 "Initiative" just to make it easier. 12 A. Okay. 13 Q. My wife worked for IBM and she speaks in 14 acronyms to me all the time. Does it refresh your 15 recollection as to when the Initiative or ROI was 16 rolled out by Nissan North America? 17 A. The Initiative was rolled out to 18 employees on April 8, 2014. 19 Q. And when we use the term rolled out, that 20 means when it was -- 21 A. Communicated. 22 Q. -- communicated to the employees? 23 A. Yes. 24 Q. And would not necessarily this particular 25 document, but this package of documents, meaning Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 41 of 86 PageID: 180 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 12 (Pages 42 to 45) Page 42 1 the memo by Mr. Diaz, the memo by Ms. Jones, and 2 then the individualized letter to the employee, 3 plus the Q&A form, would that have been given to 4 all Nissan North America employees on or about 5 April 8, 2014? 6 A. Not all employees. 7 Q. Okay. Let's examine that for a second. 8 Did ROI, as it was formulated, to the best of your 9 knowledge, applicable to all employees of Nissan 10 North America? 11 A. No. 12 Q. Who was it applicable to, to the best of 13 your knowledge? 14 A. To the Nissan field organization. 15 Q. Okay. That would be people in sales? 16 A. People in sales. 17 Q. Folks in marketing? 18 A. In their regions only. 19 Q. How about business managers? 20 A. I don't know that we have a title called 21 business manager, but -- 22 Q. Withdrawn. How about people in service? 23 A. Yes. 24 Q. People in parts? 25 A. In the field organization only, yes. Page 43 1 Q. Okay. And were there a class of people 2 or folks -- employees we're talking about. We're 3 talking about Nissan North America employees only. 4 Was there a class of those employees that the 5 program would not impact on any basis? 6 A. Headquarters. 7 Q. And when you say headquarters, what do 8 you mean by that? 9 A. Franklin, Tennessee, the headquarters. 10 Q. Do I take that to mean administrative 11 staff? 12 A. Yes. 13 Q. Okay. Now, the administrative staff at 14 Franklin, are they purely salary based, to the 15 best of your knowledge? 16 A. They have a salary. 17 Q. Right, but do they have bonus incentives 18 such as people in marketing and sales? 19 A. They have bonus incentives. Not 20 necessarily the same, but bonus incentives. 21 Q. And to the best of your knowledge -- 22 withdrawn. In April of 2014, how many regions 23 were there in Nissan North America? 24 A. Five. 25 Q. Can you identify them? Page 44 1 A. The northeast region, the southeast 2 region, the midwest region, the central region, 3 and the west region. 4 Q. And was the rollout of the Initiative 5 coordinated to take place on the same date, April 6 8, 2014? 7 A. Yes, it was. 8 Q. What part did you play in the rollout? 9 A. I actually attended one of the physical 10 locations from a video conference as a part of the 11 actual rollout. 12 Q. Which region was that? 13 A. The west region. 14 Q. And was that the only one that you 15 attended by video conferencing? 16 A. Yes. 17 Q. Now I believe you testified that you 18 first learned of the Initiative in or about 19 February 2014; am I correct? 20 A. No. 21 Q. When did you first learn that the 22 Initiative was being undertaken? 23 A. In January 2013, when I was discussing 24 taking the role of HR director, the idea of a 25 study and should we do this was a part of the Page 45 1 discussion of what was I going to held accountable 2 for, what was I going to be considered to 3 participate in. 4 Q. Now, when you had these discussions in 5 February 2013, did the Initiative have this name, 6 "Regional Optimization Initiative," or was it 7 discussed in some other generic form? 8 A. It did not have that name at that time. 9 Q. Did you have an understanding of what the 10 purpose of this initiative was? 11 A. It was an idea at that point. 12 Q. Okay. Fair enough. Did you have an 13 understanding based on your conversations with 14 Mr. Stout or others, what the purpose of this idea 15 would be? 16 A. I was given the direction to develop the 17 idea, so the idea and the generation of what 18 occurred came from me. 19 Q. And when it was asked of you to implement 20 this idea, what did you have in your mind as to 21 what you wanted to see done by this idea? 22 A. Shift empowerment back to the field 23 organization; grow the field organization. The 24 industry had gone through a major downturn and now 25 it was back on an upswing. The company was Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 42 of 86 PageID: 181 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 13 (Pages 46 to 49) Page 46 1 growing, so it was an opportunity to unlock the 2 power of the field organization to help us achieve 3 what we call P-88 which is our midterm plan that 4 we're just now finishing. 5 Q. Let's stay with the time period of 6 February 2013. Did you have any opinions as to 7 the efficiency of the work of the sales workforce 8 of Nissan North America? 9 A. Yes. 10 Q. What were those opinions? 11 A. Strong organization, capable of more. 12 Q. And when you say "more," you mean in 13 terms of productivity? 14 A. Higher performance -- capable of higher 15 performance. 16 Q. And translating, of course, to higher 17 sales? 18 A. Yeah. When I say performance, sales 19 results, profit results, customer satisfaction 20 results, parts sales results. 21 Q. How about the quality of the workforce 22 itself? Did you have any opinions as to that? 23 A. I thought we were a capable workforce. 24 The organization was capable. 25 Q. Did you have any views of whether the Page 47 1 workforce was bloated? 2 A. No. 3 Q. Top heavy, in terms of age? 4 A. That's an odd question. I'm not sure how 5 that correlates, but no. 6 Q. Did you have any opinions as to whether 7 the salaries across the board were high? 8 A. No. 9 Q. So when you developed this idea, how did 10 you go about implementing it? What'd you do? 11 A. We studied what it would take to 12 re-empower or empower the field organization to 13 attain higher performance results. So we looked 14 at what was the structure that was needed, so 15 where do you want to go strategically? What's 16 your growth plan as a company? What does the 17 organization need to look like to support that? 18 What does the field contact need to look like at a 19 dealer level, because everything happens at the 20 auto dealer level? We support the dealer. 21 So helping the dealer perform at a higher 22 level makes the company perform at a higher level. 23 So it was very -- mechanical is probably not the 24 right word, but I'm going to use the word 25 "mechanical" of going through the process, what is Page 48 1 needed to get more performance through the dealer 2 network, and can you do that sitting in one 3 building in Franklin, Tennessee, or are you better 4 closer to the market, unlocking the power of the 5 organization, letting the field organization being 6 more consultative, helping them be successful in 7 their business, which in turn makes the 8 organization successful. 9 Q. And when you say we, who are you 10 referring to? 11 A. Myself or my direct staff conducting the 12 studies. 13 Q. At that time who were the members of your 14 direct staff? 15 A. So, back to Dave Oberstadt was one; Jim 16 Papalexis who I mentioned before, and I'm 17 struggling to think of the lady's name. It will 18 come to me. 19 Q. We'll agree that the first space in the 20 record will cover this one. 21 A. We'll bring it back. When we take a 22 break, I promise you I'll get you the name. 23 Q. That's okay. All right. Can you 24 describe for us how you all went about doing this, 25 undertaking this project? Page 49 1 A. You do benchmarking to look at what other 2 manufacturers -- what does their field structure 3 look like; what are their roles and 4 responsibilities; how do they call on theirs; and 5 how do they call on and support their dealer 6 network. You look at -- from my perspective, I've 7 got a lot of years in the auto business, so some 8 of it was from my own experience of running 9 regions at General Motors as well as at Nissan. 10 What did I think could change the game? How did I 11 think we could get more performance out of both 12 the field organization and the dealers? 13 Q. So do I take it to mean that your group 14 would meet and discuss these things? 15 A. Yes. 16 Q. And in the course of those meetings, did 17 you, or was anybody tasked with the responsibility 18 or request of preparing memoranda that would focus 19 the discussion that your group would have? 20 A. Generally you might be bringing in data. 21 Like if you did benchmarking, you would share with 22 the group, and kind of do the sound boarding of 23 what was our perspective? What did the data tell 24 us? The majority of the documents relative to 25 some of the structural changes or how you might Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 43 of 86 PageID: 182 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 14 (Pages 50 to 53) Page 50 1 change the structure of the regional footprint 2 were generated by myself. 3 Q. Were these in the form of written 4 memoranda to the people on your team -- let's call 5 it your team. Were they written memoranda? 6 A. Typically PowerPoint presentations for 7 open discussion. 8 Q. Okay. Would you use emails? 9 A. Occasionally, yes. 10 Q. And how often would you meet with your 11 team on this project? 12 A. At least several times per week. 13 Q. And do you still maintain those 14 PowerPoints? 15 A. I don't have those PowerPoints today. 16 Q. Okay. Who would have those PowerPoints, 17 if you know? 18 A. I believe the director of HR today would 19 have those. 20 Q. Who is that? 21 A. Jim DeTrude, D-E-T-R-U-D-E. 22 Q. And you passed on PowerPoints, I take it, 23 because he replaced you as HR director? 24 A. That's correct. 25 Q. Did there come a time that a report of Page 51 1 some form or fashion was produced as a result of 2 your group's review and analysis of this topic? 3 A. Yes. 4 Q. Was it one report or multiple reports? 5 A. Multiple. 6 Q. And how many would you say there were? 7 A. A good number. I don't know. It'd be 8 tough to estimate. 9 Q. And similarly, are those reports in the 10 possession, custody, or control of the present HR 11 person? 12 A. They should be. 13 Q. Together with the PowerPoints? 14 A. They should be. 15 Q. Can you tell us, as best as you recall, 16 what were contained in these various reports? 17 A. Depending upon any individual thing we 18 were exploring, it would be that data, those 19 outcomes, those recommendations, those proposals 20 for me to review and make decision or direction 21 on. 22 Q. And over what period of time were those 23 -- withdrawn. Would it be fair to say that these 24 were preliminary reports or preliminary studies? 25 A. Yes. Page 52 1 Q. And over what period of time did those 2 preliminary studies or reports were they 3 generated? 4 A. I would say from the second quarter of 5 2013 through the fourth quarter of 2013 -- a lot 6 of data. 7 Q. And did those interim reports result in a 8 master report or a final report? 9 A. I don't believe there was a final report, 10 to the best of my knowledge. 11 Q. Now, as these preliminary reports were 12 being prepared and reviewed by you, were you 13 reviewing it with Mr. Stout? 14 A. I would share the direction that I 15 intended to go. 16 Q. And beyond Mr. Stout, would you have to 17 get a coordination of senior management at Nissan 18 North America to inform them and review with them? 19 A. On occasion you would inform them. 20 Q. In the fall of 2013, did you have 21 meetings with the regional vice presidents 22 regarding this idea which was now transitioning to 23 a plan? 24 A. We began to have meetings in the fourth 25 quarter of 2013. Page 53 1 Q. And would that be with the regional vice 2 presidents? 3 A. On occasion, yes. 4 Q. Would all the -- withdrawn. Again, late 5 2013, Nissan North America had five regional vice 6 presidents; is that correct? 7 A. Yes. 8 Q. Would you have meetings where all five 9 regional vice presidents would be present? 10 A. Yes. 11 Q. And would they take place here in 12 Franklin? 13 A. Yes. 14 Q. And how many such meetings do you think 15 occurred with respect to what we're talking about, 16 the Initiative? 17 A. It could have been as many as 15 or 20. 18 I don't recall the exact number. 19 Q. And to the best of your recollection, 20 when did the first such meeting occur? 21 A. I would say at the beginning of the 22 fourth quarter. I could be off a month or two, 23 but it may have been late Q-3, informing them of 24 where we were going, and how this change was going 25 to take place. Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 44 of 86 PageID: 183 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 15 (Pages 54 to 57) Page 54 1 Q. In your mind, Mr. Burchfield, was there a 2 particular time during 2013 that you felt that 3 your idea had come to a point where it was time to 4 talk to the regional vice presidents because there 5 was going to be a final plan put in place? 6 A. It was more of an evolution, working our 7 way there until we were ready to do it. 8 Q. By your answer, I take it to mean that 9 you would have a series of meetings with the 10 regional vice presidents to get their input and 11 reaction to what was being discussed? 12 A. Reaction. 13 Q. Okay. So hence the word "evolving" or 14 "evolution"? 15 A. Yes. 16 Q. Okay. It's not as if you prepared a plan 17 and said, "Hey, guys, this is the way we're 18 going." 19 A. No, that's not true. I had the plan and 20 this is where we were going. It was my decision. 21 Q. Right. But it's not as if every -- was 22 it every line was in place in stone, or was there 23 a give and take with the regional vice presidents? 24 A. There was consideration given based on 25 their input. Page 55 1 Q. Would it be fair to say that you, with 2 the approval of your superior, of course, had the 3 final say? 4 A. I had the final say. 5 Q. And so if Mr. Stout came in and said, 6 "Hey, Wally, I don't think this works," you would 7 say, "No, Mark, this is the way we're going"? 8 A. Yes, that's correct. 9 Q. And was this an understanding that you 10 had with Mr. Stout when you were brought on in 11 2013 to be an HR person? 12 A. That was my request in taking on the 13 Initiative was that I had the control. 14 Q. That's fair. I mean this was a term of 15 saying, "This is what I want if you want me to do 16 this." 17 A. That's correct. 18 Q. Apart from the regional vice presidents, 19 did you have any other input from other 20 departments of Nissan North America such as the 21 finance people? 22 A. Input from other departments, yes. 23 Q. Which departments were they? 24 A. Finance, Sales and Marketing, dealer 25 network were the predominant inputs, along with Page 56 1 the regional vice presidents. 2 Q. How about Legal? 3 A. Yes. 4 Q. Now, at Nissan North America, does Legal 5 have a component which is just HR? 6 A. I don't know if it's structured that way. 7 They have -- today Mike sits here as the counsel 8 that supported me on the project. I don't know if 9 they're cut up -- if they have just an HR Legal. 10 Q. But you had HR Legal involved in the 11 process? 12 A. Yes. 13 Q. And what was the input provided by the 14 Finance folks? 15 A. Two pieces. One just total cost control, 16 what's the implication to the organization to make 17 a change like that. Organizational change is not 18 free. As well as they wanted to input regional 19 controllers into the new regional structure so 20 they could help the regions run through 21 empowerment. 22 Q. And Sales and Marketing, what was their 23 input? 24 A. More question on structure, number of 25 regions, competitive structure, a lot of questions Page 57 1 around benchmarking, that kind of stuff. 2 Q. When you say "benchmarking," -- 3 A. How does Toyota's field force face off 4 against their dealers; how does Honda's field 5 force face off against their dealers; how does 6 General Motors face off against their dealers. 7 Q. And how about dealership input? 8 A. No dealership input. 9 MR. ELLIS: Dealer network was the 10 phrase you used. 11 BY MR. CHANG: 12 Q. Yeah, dealer network. 13 A. So, yeah, we would say in our terminology 14 dealer network. 15 Q. I beg your pardon. 16 A. So the dealer network group, who is 17 internal, yes. But when you say a dealer, no. I 18 just want to make sure I clarified that. 19 Q. And I got that. And during these 20 meetings -- and I'm not holding you to a number, 21 but you mentioned the word "20-some-odd meetings", 22 right? At each one of these meetings, were the 23 Finance people there? Sales and Marketing, dealer 24 network, and Legal people there? 25 A. Legal was always in the meetings. I Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 45 of 86 PageID: 184 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 16 (Pages 58 to 61) Page 58 1 don't think the meetings always included all the 2 different constituents, but I couldn't tell you 3 today sitting here. It's too many years back to 4 know who was in the room. Usually Sales and 5 Marketing would have been in the room when the 6 regional VPs were in the room, because they're a 7 part of the same structure. 8 Q. And during these meetings, would anybody 9 be tasked with the responsibility of keeping 10 minutes or notes of what was said? 11 A. Not necessarily. 12 Q. Were any of these meetings recorded? 13 A. No, not to my knowledge. 14 Q. Were there ongoing PowerPoint 15 presentations made? 16 A. Preliminary review of PowerPoints, yes. 17 Q. And to the best of your knowledge, were 18 those PowerPoints maintained? 19 A. To the best of my knowledge, yeah. 20 Q. But I take it as with your answer to my 21 prior questions, you're not in possession of 22 those? 23 A. I'll have to go back and look do I have 24 anything anywhere, but most of what was in my HR 25 role was left for the subsequent HR director. Page 59 1 Q. Now, would it be fair to say -- excuse 2 me, withdrawn. I beg your pardon. In your mind, 3 can you identify a time period by month, if it is 4 possible, in 2013 when the Initiative became 5 final, to the extent that you could produce the 6 document which has been identified as Plaintiff's 7 Exhibit No. 1? 8 A. This document would have been produced in 9 the first quarter of 2014. 10 Q. Okay. I guess using that as a benchmark, 11 when in your mind did the Initiative become final 12 in your mind in relation to the Q&A document? 13 A. It would have been the very back end of 14 Q-4 of 2013, and maybe in January 2014. So right 15 there in that window of time. 16 Q. And just with respect to that document, 17 do you know who actually prepared the text of the 18 memo by Mr. Diaz, and then the memo by Ms. Jones, 19 and then the individualized letter and then the 20 Q&A? 21 A. My team would have prepared the rough 22 drafts for review. 23 Q. Was there anybody within your group that 24 was tasked with that responsibility? 25 A. Normally it was either Dave Oberstadt or Page 60 1 one of his team members would have been doing 2 this. Now on the compensation, it would have come 3 out of the compensation structure. 4 Q. That would have been Ms. Jones? 5 A. Yes. 6 Q. All right. Because she would have to do 7 -- just looking at the memo to Mr. McAvoy in this 8 document, Plaintiff's 1, she would have to crunch 9 the numbers on his salary, because this was unique 10 or individual to him? 11 A. Yeah, I would assume her staff would have 12 crunched those. 13 Q. Now, do you know if all of these 14 documents were vetted through Legal? 15 A. Yes, to the best of my knowledge. 16 Q. And understanding corporate reporting, 17 they would have had to sign off on these 18 documents? 19 A. They would have concurred, to the best of 20 my knowledge. 21 Q. Now, when you came in your own mind to 22 the conclusion that the Initiative was final in or 23 about say January of 2014, what did you have an 24 understanding as to what the Initiative would do? 25 A. The Initiative was focused again, as I Page 61 1 said before, on moving empowerment and unlocking 2 the power of the regions to make the regions -- 3 give the regions the ability to generate higher 4 performance, stronger consultation to the dealers 5 in all facets of the business. So this was a 6 growth initiative. Sometimes when you see 7 restructurings, they're the other way around. But 8 this is a growth initiative. Our brand was 9 growing, our company was growing, and so it was 10 about setting up the structure to facilitate and 11 enable that growth. 12 Q. Prior to January of 2014, did you ever 13 hear feedback from your team or from other places 14 that Nissan employees had become aware of the 15 discussions regarding the formulation in this 16 plan? 17 A. I believe there was feedback. It's hard 18 to keep this kind of initiative that quiet. So I 19 don't know that I ever had a direct from an 20 employee, but -- 21 Q. Do you know a person by the name of Gary 22 Frigo, F-R-I-G-O? 23 A. Yes, I do. 24 Q. And was he an employee of Nissan North 25 America in late 2013, beginning of 2014? Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 46 of 86 PageID: 185 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 17 (Pages 62 to 65) Page 62 1 A. Yes, he was. 2 Q. And what was his position? 3 A. He was the regional vice president for 4 the northeast region. 5 Q. And was he one of the regional vice 6 presidents that would attend these 20-some-odd 7 meetings? 8 A. Yes, he would. 9 Q. Did he ever have any conversations with 10 you -- withdrawn. Did you ever hear that 11 employees within Nissan North America had heard 12 about these discussions or meetings that were 13 occurring, and that the view was that this 14 formulation was, in essence, a voluntary 15 retirement plan? 16 A. No, I did not hear that. 17 Q. In the implementation of the Initiative, 18 would be it fair to say that salary reductions 19 were put into place, or would occur? 20 A. Salary reduction was one element that 21 occurred at that time. 22 Q. What were the other elements -- 23 withdrawn. What were the other impacts, if any in 24 your opinion, of this program? 25 A. We grew the organization; we created new Page 63 1 opportunities and more roles, so more openings 2 than we actually had staff. We created new 3 structures within the regional offices to 4 facilitate the direction we wanted to go relative 5 to empowering the regions, and created the finance 6 role from a control standpoint. We reviewed and 7 made decisions on relocation, so our relocation 8 policy changed during that time. So those were 9 some of the additional things. We actually 10 reduced the number of stores -- the actual people 11 to call in the stores had to deal with on a month- 12 to-month basis, so they could be more 13 consultative. So instead of calling on a large 14 number, we reduced the number to improve the 15 consultant capability. 16 Q. Why don't we go to the second page of 17 Plaintiff's 1 for Identification, that is again 18 the memorandum dated April 8, 2014 to Peter McAvoy 19 by Tracy Jones, director of Total Rewards. Can 20 you see that in this memo it indicates that 21 Mr. McAvoy's salary would be reduced? 22 A. Yes. 23 Q. Why was that? 24 A. Apparently Mr. McAvoy was over the 25 maximum for a pay band, and so at this time we Page 64 1 made a decision to -- I made a decision to make 2 the adjustments to pull those back to the maximum 3 of the band. 4 Q. Now you've used the word "pay band." 5 What do you mean by that? 6 A. So almost all large organizations, to try 7 to make sure you're doing things according to 8 employment regulations and things like that, you 9 set bands for compensation for what we want to pay 10 as a company for the services that employee 11 provides. And so bands range from minimum to 12 maximum with a midpoint. 13 Q. And in the first quarter of 2014, do you 14 recall how many pay bands there were for Nissan 15 North America employees? 16 A. I would say non-executive, probably eight 17 or nine. They're some very early entry bands that 18 I probably don't know, but probably in the realm 19 of eight from bottom all the way up to the first 20 level of the executives. 21 Q. And in the first quarter of 2014, how 22 were these pay bands determined? 23 A. You'd have to ask the compensation side 24 of the house that question. I don't know what 25 makes the band. That's their role, not mine. Page 65 1 Q. You don't know if they consult -- use 2 outside consultants, or studies? 3 A. I would assume they do, but I don't have 4 that information. 5 Q. So I take it when you say a pay band, 6 it's a salary grade. Am I correct in that 7 characterization? 8 A. That'd be a good characterization. 9 Q. Okay. And that salary grade has a low 10 and high? 11 A. A low and a high. 12 Q. Okay. And an employee of a certain 13 experience and competence, you want in a 14 particular band? 15 A. I would add one piece: performance; but, 16 yes. 17 Q. Okay. No, that's fair. That's fair. In 18 the first quarter of 2014, to the best of your 19 knowledge, and understanding that Ms. Jones was 20 overseeing Compensation, did you have an 21 impression that there were many folks or employees 22 like Mr. McAvoy who were being paid above their 23 pay band? 24 A. In my span of control of the HR Business 25 Partner role, I knew in my structure the number of Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 47 of 86 PageID: 186 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 18 (Pages 66 to 69) Page 66 1 people that were above pay band. 2 Q. How would that occur? 3 A. In a traditional HR responsible role, you 4 know what your GNA costs are. You know what it's 5 spread across. 6 Q. No. I understand that. I guess I'm 7 asking somewhat of a different question. In a 8 large organization, there would be a regular 9 review of employee salaries on a company wide -- 10 A. Annual basis. 11 Q. On a company-wide basis, correct? 12 A. Uh-huh. 13 Q. From year to year? How does somebody's 14 salary get above the pay band, or into a pay band 15 over what he or she should be? 16 A. I'm sure there's a variety of ways. None 17 have occurred under my leadership, but at the end 18 of the day -- 19 Q. That's why you're still there. 20 A. -- there are people that are over the pay 21 bands, so. I don't know what precipitated that. 22 Q. Well, let's focus concretely on 23 Mr. McAvoy for my own edification. According to 24 this memo -- I'm not going to read through every 25 bit of it, but as of April 2014, he had a current Page 67 1 annual salary of $192,005. Was that his base? 2 A. That would have been his annual salary, 3 his base. 4 Q. And that would have been within a 5 particular pay band, or not? 6 A. Well that was his salary. He may have 7 been in a different pay band, but that appears to 8 be his salary, based on this letter. 9 Q. Right. But that was above what his pay 10 grade should have been, according to this memo, as 11 I take it? 12 A. Yeah. The first sentence in the second 13 paragraph says the pay band that he was in, 14 apparently AI, the max was 143,069, and his 15 current salary was 192,005. 16 Q. Now understanding that, again, it's 17 Ms. Jones, do you know how Mr. McAvoy wound up 18 getting a salary of 192,000 and change, but was an 19 A-1 grade band? 20 MR. ELLIS: A-I. 21 BY MR. CHANG: 22 Q. A-I. I'm sorry. I beg your pardon. A-I 23 grade band? 24 A. I can only assume that he was at a higher 25 level, and now was at a lower level, but that's an Page 68 1 assumption on my part. Higher pay band level. 2 Q. I understand. Let's examine that for a 3 second. Not necessarily with respect to 4 Mr. McAvoy, but how would somebody wind up in a 5 higher pay band when he shouldn't have been? 6 MR. ELLIS: Object to the form of 7 the question. 8 BY MR. CHANG: 9 Q. Withdrawn. Who determined, with respect 10 to Mr. McAvoy, that his appropriate grade was A-I? 11 MR. ELLIS: It's all letters. 12 BY MR. CHANG: 13 Q. A-I? 14 A. At some point in his career, he obviously 15 was put in that band for the role he was doing. I 16 don't have direct knowledge of what caused that 17 for Mr. McAvoy. 18 Q. And, if you know, in April of 2014, what 19 percentage of the workforce -- again, if you know 20 -- would have been similarly situated to 21 Mr. McAvoy, that is meaning having a base salary 22 which was in excess of his pay band? 23 MR. ELLIS: I assume you mean the 24 percentage of the field organization that's 25 subject to ROI, or are you talking about Page 69 1 the -- 2 BY MR. CHANG: 3 Q. Total. Let's go total and then we can 4 drill down from there. 5 A. I don't know that I know that percentage, 6 but I would assume it would be microscopic. 7 Q. Would it be fair to say, Mr. Burchfield, 8 that your assumption that that number is low 9 because if it wasn't, somebody's not doing their 10 job? 11 A. It'd be a fair assumption. 12 Q. Okay. In April of 2014, total -- how 13 many total employees were there in Nissan North 14 America? 15 A. I don't know that I know that. 16 Q. Do you know who would? 17 A. Tracy may, but somebody could probably 18 get the number and add it to the record. I just 19 don't know that I know the number. 20 Q. Well, Mr. Ellis and I had a discussion 21 about this because I've been designated and I'm 22 coming into this gate late. Similarly, would 23 Ms. Jones be the person who would have knowledge 24 or information about how employees are put into a 25 particular pay band as of April 2014? Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 48 of 86 PageID: 187 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 19 (Pages 70 to 73) Page 70 1 A. She would have the pay band knowledge. 2 Q. As of April 2014, can you estimate the 3 total number of employees in Nissan North America 4 who would have been impacted by the implementation 5 of the Initiative? 6 A. So the ROI Initiative impacted a little 7 north of 300 Nissan employees in the field 8 organization. 9 Q. And again, just to make this so we are 10 clear on this point, the Initiative did not impact 11 every Nissan North America employee? 12 A. No, it did not. 13 Q. And is it your impression that the total 14 number of employees at Nissan North America was 15 well north of 300 employees in April of 2014? 16 A. Restate the total. I just want to make 17 sure I'm clear. 18 Q. Is it your impression that in April 2014, 19 the total number of Nissan employees, in whatever 20 role or capacity, was well in excess of 300 21 employees? 22 A. Yes. 23 Q. Would you say the workforce was close to 24 a thousand? 25 A. Greater. Page 71 1 Q. More than 2000? 2 A. Greater. 3 MR. CHANG: Why don't we take a 4 five-minute break? 5 (Off the record.) 6 BY MR. CHANG: 7 Q. We're back on the record, Mr. Burchfield. 8 Prior to the rollout of the Initiative in April 9 2014, were there any discussions among your team 10 or with the regional vice presidents as to what, 11 if any, cost savings would result as a consequence 12 of the implementation of the program? 13 A. Cost savings? Not that I recall, cost 14 savings. 15 Q. Well, were there any discussions either 16 within your workforce or at these meetings that 17 one of the consequences of the implementation of 18 the program would be salary reductions of certain 19 employees? 20 A. We informed the regional VPs at the time, 21 just prior to this, that there would be a 22 reduction for select employees. 23 Q. And was there any discussion within your 24 team, or with the regional vice presidents, as to 25 whether senior employees, that is, in terms of Page 72 1 seniority within the company, would be impacted 2 more by the implementation of the program as 3 opposed to younger employees? 4 A. No. 5 Q. At the time of the implementation in the 6 program, did you have an impression or an opinion 7 that the salaries of senior employees in Nissan 8 North America were higher than they should be? 9 A. No. 10 Q. Did you know in the first quarter of 2014 11 that one of the consequences of the implementation 12 of the program would be the reduction of salaries 13 of employees? 14 A. Yes. 15 Q. Were there any studies done, or analyses 16 done, as to what the total amount of the salary 17 reductions would be? 18 A. Not a study. 19 Q. Projections? 20 A. I think just an over-the-max difference, 21 just a variance to over the max, which is not a 22 study, but -- 23 Q. And what would that reduction be? 24 A. I don't recall what the figure was. 25 Q. Do you know if that was memorialized in Page 73 1 any sort of writing? 2 A. No, other than just probably a chart that 3 says "this person is over" similar to the letter 4 to help that group produce the letter. 5 Q. Let me ask you this question: Prior to 6 the rollout in April 2014, did anybody in your 7 group do some sort of analysis or study as to 8 which employees would be impacted by the program 9 in terms of their salary, and what that impact 10 would be? 11 A. We produced and reviewed the number of 12 employees that were over the max for their pay 13 band and can see what that reduction would be, and 14 it was incorporated into the Initiative. 15 Q. When you say "incorporated into the 16 Initiative," meaning that that was an anticipated 17 consequence as a result of the Initiative being 18 put into place? 19 A. It was one element of the time that we 20 chose to implement this Initiative. 21 Q. And in terms of the reduction in the 22 salary, do you have in your mind now, or then, or 23 anytime in between, what that percentage reduction 24 would be? 25 A. No. Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 49 of 86 PageID: 188 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 20 (Pages 74 to 77) Page 74 1 Q. Do you know if it was in the analysis or 2 whatever studies were done when this review was 3 done? 4 A. There would have been a straight factor 5 of if they're over the max by 5000, there's a 6 $5000 reduction. If somebody was 4000, there 7 would be a $4000 reduction. 8 Q. But your recollection was, before the 9 rollout, somebody would have reviewed the salaries 10 of every employee who would have been impacted by 11 the Initiative, and a number crunched as to what 12 the salary reduction would be? 13 A. For the folks that were over the max, 14 that was prepared, yes. 15 Q. Right. But let's make this clear, 16 Mr. Burchfield, by definition the program would 17 only affect those employees, in terms of salaries, 18 whose salaries were over the max? 19 MR. ELLIS: When you use the term 20 "the program," are you referring to ROI, -- 21 MR. CHANG: The Initiative. 22 MR. ELLIS: -- or to the over-the- 23 max piece of it? 24 MR. CHANG: No, no. I'm talking 25 about ROI. Page 75 1 THE WITNESS: ROI had additional 2 elements that also affected people's 3 salary, because we talked about a bonus 4 adjustment upward. 5 BY MR. CHANG: 6 Q. Okay. Let's examine that. As a result 7 of the implementation of ROI, were there instances 8 where employee salaries would increase? 9 A. Not salaries, but bonus. 10 Q. So there would be a potential that their 11 compensation increased, depending upon the bonus 12 structure? 13 A. Total compensation. 14 Q. Total compensation? Okay. Were there 15 any instances where, as a result of the 16 implementation of ROI, the base salary of an 17 employee affected by ROI, would increase? 18 A. Only if they happened to get a promotion, 19 but that was not the intent. 20 Q. Would it be fair to say that in virtually 21 all instances, the implementation of the ROI would 22 result in the reduction of the base salary of an 23 employee whose salary was over the appropriate pay 24 band? 25 A. If they were over the max, it would Page 76 1 result in a reduction. 2 Q. Now, do you know if in that analysis 3 which you've referred to, of the impact on 4 employees, was the age of the employee looked at? 5 A. Any analysis that's inside of the 6 Compensation or HR world with oversight of Legal 7 would have been done as traditional Compensation 8 would do it, which I'm assuming -- and again, I'm 9 not the person that's in that piece -- but to 10 manage any adverse impact to any group. 11 Q. Do you recall, Mr. Burchfield, at any 12 time before the rollout of ROI in April of 2014, 13 that somebody said, "If you put this program into 14 place, employees who are generally 50-plus will be 15 impacted more than employees who are less than 16 50"? 17 A. No. 18 MR. CHANG: Let's have this 19 document marked as Plaintiff's Exhibit 2. 20 This is for you, Ed. 21 (WHEREUPON, the above-mentioned 22 document was marked as Exhibit No. 2.) 23 BY MR. CHANG: 24 Q. I'm going to ask you to look at this 25 document. Just take your time. Have you had an Page 77 1 opportunity to review the document? 2 A. Yes. 3 Q. It appears to be a document that was 4 prepared under the direction of Edith Ballard. Do 5 you know Edith Ballard? 6 A. Yes. 7 Q. And who is she? 8 A. She was a staff member in my HR staff. 9 Q. And is she still with HR, to the best of 10 your knowledge? 11 A. Yes, she is. 12 Q. And have you ever seen this document 13 prior to today? 14 A. Yes. 15 Q. When's the first time you saw this 16 document? 17 A. I don't know that I can give you a 18 specific date, but it looks like a listing of all 19 field employees that were a part of ROI. 20 Q. Now when you say "part of ROI," is it 21 your impression that the contents of the -- let's 22 call it a chart or a schedule -- are a list of all 23 employees of Nissan North America who were 24 impacted by ROI? 25 A. It appears to be a listing of all Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 50 of 86 PageID: 189 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 21 (Pages 78 to 81) Page 78 1 employees that were in the field that were 2 affected by ROI at that time. 3 Q. This document is dated April 18, 2016 4 which would be after your tenure as HR director. 5 Notwithstanding that, do you know if this chart or 6 schedule was prepared by Ms. Ballard? 7 A. I can only assume that based on her 8 signature and certification on the back that it 9 was. She signed the certification. 10 Q. And the information that's contained in 11 this chart or schedule, do you know the source 12 documents or source data she would have consulted 13 in preparing this schedule, or having this 14 schedule prepared? 15 A. I can only assume some HR system. I'm 16 not a systems expert, so I don't know where 17 everything is housed. 18 Q. And again, when is the first time you 19 recall seeing this chart? 20 A. To the best of my knowledge, it is a 21 chart that references who is going to be in the 22 ROI Initiative, so it would have had to have been 23 sometime late 2013, early 2014. 24 Q. No, no, no. Just to be fair to you, 25 because again I'm not here to trick anybody. If Page 79 1 you look at the left-hand column of the chart, it 2 says "age as of 10/25/15." I take that to mean 3 we'll refer to October 25th, 2015. So it couldn't 4 have been -- 5 A. It couldn't have been then. 6 Q. -- prepared before then. Does this stand 7 to reason? 8 MR. ELLIS: This is a response to 9 the interrogatory. 10 THE WITNESS: Yeah, again, to your 11 question, because it states that, I don't 12 know. Again, I'm looking at the details 13 within the chart, and they just look like 14 familiar details, but to your question, 15 this obviously was produced after it, so I 16 think you'll have to rely on Ms. Ballard to 17 give you any feedback on it. 18 BY MR. CHANG: 19 Q. Mr. Burchfield, have you ever heard of 20 the term "red circled" in the context of human 21 resources or employment? 22 A. Yes, I have. 23 Q. And when's the first time you ever heard 24 that term? 25 A. I would say in my early employment at Page 80 1 General Motors Corporation. 2 Q. And in what context did you hear that 3 term? 4 A. In the context of rotational assignments. 5 Q. And what do you understand that term to 6 mean? 7 A. My understanding is that if an employee 8 is red circled, they're in a role that may not be 9 the same level -- and I emphasize may -- may not 10 be the same level, may not be the same pay grade. 11 It's for the purpose of putting the employee in a 12 role so they can get the developmental experience, 13 experience the job, or maybe contribute to the 14 results of that job, and subsequently move on to a 15 different role later on. But it's all "may," 16 performance based. 17 Q. Do you have an understanding that the 18 term "red circle" also is a phrase to mean that an 19 employee's salary will be frozen at a particular 20 amount? 21 A. Red circle can mean -- may -- may mean 22 that you're protecting the pay; you could be 23 protecting the bonus; you could be protecting a 24 variety of benefits; you could be protecting a lot 25 of things in the connotation of red circle. Page 81 1 Q. And to the best of your knowledge, while 2 you were at General Motors was that a term 3 generally understood by employees, to be used in 4 the context of employment? 5 A. Not employees. Management. 6 Q. And that would include HR people? 7 A. I would assume so, at that time, yeah. 8 Q. Now, let's focus on Nissan North America. 9 Do you know if, in 2011, Nissan had a policy or 10 practice, either formal or informal, which 11 permitted the salaries of its employees to be red 12 circled? 13 A. I wasn't in HR at that time, so I don't 14 know. 15 Q. All right. Let's fast forward to 2013. 16 Do you know, while you were director of HR, 17 whether Nissan had a policy or practice in place, 18 formal or informal, that an employee's salary 19 could be red circled, meaning frozen? 20 A. There was the ability to use that tool, 21 or that connotation of "red circle" during my 22 tenure. The tool was available to be used if 23 needed. 24 Q. When did you first learn of the existence 25 of that tool? Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 51 of 86 PageID: 190 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 22 (Pages 82 to 85) Page 82 1 A. When I joined HR. 2 Q. How did you learn of it? 3 A. I don't know that I can give you the 4 instance that came up that brought that to my 5 mind, but I'm sure that at some point I bumped 6 into it on an individual situation, some case. 7 But I don't recall what the case was. 8 Q. And do you know if it's a written policy 9 to permit that tool to be used, or is it just a 10 practice? 11 A. To my knowledge it's a practice. I don't 12 know that it's a written policy, to the best of my 13 knowledge. 14 Q. While you were director of HR, you never 15 saw any written policies regarding the use and the 16 employment, or implementation of red-tooling of 17 employees' salaries? 18 A. Not as a written policy. 19 Q. During your tenure as HR director, did 20 you ever receive requests to red circle a salary 21 of an employee? 22 A. Yes. 23 Q. On approximately how many occasions? 24 A. It would have been extremely limited. I 25 mean we're talking probably five, six, seven -- Page 83 1 some small number. 2 Q. And in those limited instances, was there 3 a common -- withdrawn. In those instances do you 4 recall the reasons offered why the salary should 5 be red circled? 6 A. The majority of reasons to use a red 7 circle again are to protect the benefits. It 8 could be salary; it could be bonus; in moving an 9 employee to a role where they need to get the 10 developmental experience. And so you want the 11 employee to take that role, or to do that job, and 12 you're trying to not take away other benefits that 13 they receive. So it can be a variety. You 14 continue to reference just salary, but it's not 15 limited to salary. 16 Q. Okay. And in those several instances 17 where the request came across your desk in your 18 capacity of director of HR, did you have the final 19 say in approving or not approving such a request? 20 A. Yes. 21 Q. You didn't have to get approval of 22 anybody above you? 23 A. No. 24 Q. And in those instances, did you approve 25 any of the requests? Page 84 1 A. I did. 2 Q. And what number total? 3 A. It would have been sub-5, maybe 7 max. 4 It's a rarely used tool, but it does get used. 5 Q. And in those instances where you approved 6 the red circle, how long did that last? 7 A. Typically a year or two years, because 8 it's a developmental thing. It's not -- the 9 answer to your question is how long -- it's not a 10 perpetuity. 11 Q. And in the instances where you approved 12 it, do you recall what the approximate ages of the 13 employees were? 14 A. I don't. 15 Q. You don't recall if they were above 60? 16 A. It's not pertinent to the decision, so it 17 wouldn't have been a question I asked. 18 Q. So are you saying that it wouldn't matter 19 to you in arriving at your decision if the 20 employee was above 60, or close to retirement age? 21 A. Absolutely not. 22 Q. Do you know a person by the name of Tim 23 Gilbert? 24 A. Yes, I do. 25 Q. And Mr. Gilbert, is he an employee of Page 85 1 Nissan North America? 2 A. He is. 3 Q. And was he an employee of Nissan North 4 America back in 2011? 5 A. I believe so. 6 Q. And do you know what position he 7 maintained in 2011? 8 A. I don't. He didn't work for me so I just 9 knew he was an employee. 10 Q. In 2011, do you know if Edith Ballard 11 would have had the authority to authorize red 12 circling a salary of a Nissan North America 13 employee? 14 A. In 2011, I wouldn't know. 15 MR. CHANG: Can we just take two 16 more minutes? 17 (Off the record.) 18 BY MR. CHANG: 19 Q. Mr. Burchfield, I don't have any further 20 questions at this time. I've been advised by 21 Mr. Ellis that there were documents produced to 22 Niedweske Barber in connection with this case 23 relating to ROI which I wasn't aware of. So I'll 24 have to go back and consult with the attorneys at 25 that firm about that. But at this point, I don't Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 52 of 86 PageID: 191 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 23 (Pages 86 to 89) Page 86 1 have any further questions. Thank you for coming. 2 I appreciate your time. 3 MR. ELLIS: Just for the record, I 4 understand what you're saying, and that you 5 don't have any more questions at this time. 6 But I'm just not agreeing that you'll ever 7 have the right to ask more questions. 8 MR. CHANG: How am I surprised by 9 that? 10 MR. ELLIS: If we end up with a 11 discussion with Judge Harper, that's okay. 12 MR. CHANG: That's good. 13 MR. ELLIS: I just want to make 14 clear my position on this. 15 MR. CHANG: Thanks for coming in 16 everybody. 17 (Proceedings concluded at 11:03 a.m.) 18 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 19 20 21 22 23 24 25 Page 87 1 CERTIFICATE OF DEPONENT 2 3 I hereby certify that I have read the 4 foregoing pages of my deposition testimony in 5 this proceeding, and with the exception of 6 changes and/or corrections, if any, find them to 7 be a true and correct transcription thereof. 8 9 __________________________________ 10 Deponent 11 12 __________________________________ 13 Date 14 15 NOTARY PUBLIC 16 Subscribed and sworn to before me this 17 ________ day of ___________________, 20___. 18 19 ________________________________________________ 20 Notary Republic 21 22 My Commission Expires:____________ 23 24 25 Page 88 1 ERRATA SHEET 2 3 PAGE -- LINE -- CORRECTION/REASON 4 5 ____ ____ _________________________________ 6 7 ____ ____ _________________________________ 8 9 ____ ____ _________________________________ 10 11 ____ ____ _________________________________ 12 13 ____ ____ _________________________________ 14 15 ____ ____ _________________________________ 16 17 ____ ____ _________________________________ 18 19 ____ ____ _________________________________ 20 21 ____ ____ _________________________________ 22 23 ____ ____ _________________________________ 24 25 ____ ____ _________________________________ Page 89 1 ERRATA SHEET 2 3 PAGE -- LINE -- CORRECTION/REASON 4 5 ____ ____ _________________________________ 6 7 ____ ____ _________________________________ 8 9 ____ ____ _________________________________ 10 11 ____ ____ _________________________________ 12 13 ____ ____ _________________________________ 14 15 ____ ____ _________________________________ 16 17 ____ ____ _________________________________ 18 19 ____ ____ _________________________________ 20 21 ____ ____ _________________________________ 22 23 ____ ____ _________________________________ 24 25 ____ ____ _________________________________ Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 53 of 86 PageID: 192 Wally Burchfield - September 27, 2016 GregoryEdwards.com | 866-4Team GE GregoryEdwards, LLC | Worldwide Court Reporting 24 (Pages 90 to 91) Page 90 1 ERRATA SHEET 2 3 PAGE -- LINE -- CORRECTION/REASON 4 5 ____ ____ _________________________________ 6 7 ____ ____ _________________________________ 8 9 ____ ____ _________________________________ 10 11 ____ ____ _________________________________ 12 13 ____ ____ _________________________________ 14 15 ____ ____ _________________________________ 16 17 ____ ____ _________________________________ 18 19 ____ ____ _________________________________ 20 21 ____ ____ _________________________________ 22 23 ____ ____ _________________________________ 24 25 ____ ____ _________________________________ Page 91 1 STATE OF TENNESSEE ) 2 COUNTY OF DAVIDSON ) 3 4 I, Gina R. Hunter, Licensed Court Reporter 5 for the State of Tennessee, 6 DO HEREBY CERTIFY the foregoing proceedings 7 were taken at the time and place set forth in 8 the caption thereof; the witness therein was 9 duly sworn an oath to testify the truth; the 10 proceedings were stenographically reported by 11 me in shorthand; and the foregoing proceedings 12 constitute a true and correct transcript of 13 said proceedings to the best of my ability. 14 15 I FURTHER CERTIFY that I am not a relative 16 or employee or attorney or counsel of any of the 17 parties hereto, nor a relative or employee of 18 such attorney or counsel, nor do I have any 19 interest in the outcome or events of this 20 action. 21 22 23 _______________________________ 24 Gina R. Hunter, LCR # 639 25 Licensed Court Reporter Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 54 of 86 PageID: 193 EXHIBIT C Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 55 of 86 PageID: 194 1 IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY 2 CIVIL ACTION NO. 3:15-CV-06824-MLC-DEA 3 4 PETER W. MCAVOY, ) ) 5 Plaintiff, ) ) 6 -vs- ) DEPOSITION OF: ) 7 MISSAN NORTH AMERICA, INC., ) PETER W. MCAVOY ) 8 Defendant. ) 9 _______________________________ 10 11 12 TRANSCRIPT of the stenographic notes of 13 the proceedings in the above-entitled matter, as taken 14 by and before BARBARA WESTOVER, a Certified Shorthand 15 Reporter and Notary Public of the State of New Jersey, 16 held at the office of NIEDWESKE BARBER HAGER, 98 17 Washington Street, Morristown, New Jersey, on March 18 16, 2016, commencing at 10:30 a.m. 19 20 21 22 23 24 25 Job No. NJ2246762 Page 1 Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 56 of 86 PageID: 195 Page 2 1 A P P E A R A N C E S: 2 3 NIEDWESKE BARBER HAGER BY: LINDA J. NIEDWESKE, ESQ. 4 98 Washington Street Morristown, New Jersey 07960 5 973-401-0064 LNIEDWESKE@N-BLAW.COM 6 Attorneys for Plaintiff 7 LITTLER MENDELSON, P.C. 8 BY: EDWARD T. ELLIS, ESQ. One Newark Center 9 1085 Raymond Boulevard Eighth Floor 10 Newark, New Jersey 07102 973-848-4700 11 Attorneys for Defendant 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 1 INDEX 2 WITNESS: PETER W. MCAVOY PAGE 3 EXAMINATION BY MR. ELLIS 4 4 5 EXHIBITS 6 NO. DESCRIPTION PAGE 7 D-1 Job Description 17 8 D-2 E-mail 49 9 D-3 E-mail 56 10 D-4 Salary Adjustment Letter 60 11 D-5 Salary Adjustment Letter 60 12 D-6 Responses to Interrogatories 87 13 14 (Exhibits were retained by the reporter.) 15 16 17 18 19 20 21 22 23 24 25 Page 4 1 PETER W. MCAVOY, residing at 14 Langford Drive, 2 Mendham, New Jersey 07945, having been duly sworn by 3 the Notary Public, testified as follows: 4 EXAMINATION BY MR. ELLIS: 5 Q. Mr. McAvoy, my name is Ed Ellis and I 6 represent Nissan in the lawsuit that you brought 7 against Nissan, and what we're going to do today is a 8 deposition and that means I'm going to ask you 9 questions about your case and your job is to provide 10 answers. So if you don't understand any of the 11 questions, tell me and I'll rephrase the question so 12 hopefully with any kind of luck you understand it. 13 A. Okay. 14 Q. And I'm going to probably show you some 15 documents. If I show you some documents, make sure 16 you look at them carefully so you know what document 17 you're talking about and we don't get confused on the 18 record. 19 A. Okay. 20 Q. When I ask a question you have to give an 21 out loud answer, meaning you can't shake your head or 22 go "uh-huh" or "uh-uh" because the court reporter has 23 trouble taking all of that down. So if you can just 24 give me, you know, answers that are clear, I'll try to 25 ask questions that are clear, and that's about all Page 5 1 there is to it. 2 Do you have any questions about the 3 process? 4 A. No, I do not. 5 Q. If you want to take a break at some time, 6 please say so. 7 A. Okay. 8 Q. As you can see your lawyer has coffee and 9 water here for us, so if you need to take any break 10 let me know. 11 A. Good to go. 12 Q. You're employed presently by Nissan, 13 right? 14 A. That is correct. 15 Q. Which of the Nissan entities employs you? 16 A. Well, I work for the sales and marketing 17 operation, but I'm in the northeast regional office in 18 Somerset, New Jersey. 19 Q. Is it Nissan North America that employs 20 you do you think? 21 A. Yes. 22 Q. And you worked at Nissan since 1983? 23 A. That is correct. 24 Q. You're in you said the sales and 25 marketing organization? 2 (Pages 2 - 5) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 57 of 86 PageID: 196 Peter W. McAvoy - by Mr. Ellis Page 6 1 A. Well, it's in the sales and marketing 2 group. I mean we're headquartered now in Franklin, 3 Tennessee, but the RVP, the regional vice-president is 4 in Somerset, New Jersey, that operation, the northeast 5 regional office reports directly to the headquarters 6 in Franklin, Tennessee. 7 Q. Do you report to the RVP in Somerset, New 8 Jersey? 9 A. Not directly. 10 Q. Who is the RVP at this point? 11 A. Michael Colleran. 12 Q. Do you just want to spell that for the 13 court reporter. 14 A. C-o-l-l-e-r-a-n. 15 Q. Have you been in the sales and marketing 16 organization the entire time you worked for Nissan? 17 A. Yes, I have. 18 Q. When -- 19 A. But I've been with two different 20 divisions. At one point I was with the Infinity 21 division when I was in Los Angeles for at least one 22 year. 23 Q. What is your current job? 24 A. Associated business manager. 25 Q. What was your job -- how long have you Page 7 1 been in that job? 2 A. I've been in that job since, to the best 3 of my recollection, October 2011. 4 Q. And what was your job prior to that? 5 A. I was the parts and service manager. 6 Q. For what? 7 A. For the northeast region. 8 Q. What's the northeast region cover by the 9 way? 10 A. The north -- we've gone through a number 11 of different reorganizations as far as geography 12 because we were initially 12 regions -- 11 regions, 12 13 regions, five regions, now we're at eight regions. 14 The current geography today under the 15 eight region format, we are all of New England, all of 16 New York, New Jersey, Pennsylvania, primarily the 17 Poconos -- not even the Poconos anymore, the 18 Philadelphia Metro and Delaware. 19 Q. And are you currently the ABM for the 20 northeast region? 21 A. Correct. 22 Q. When did you become the parts and 23 services manager? 24 A. Well, there was a reorganization in 2008; 25 I was the parts and service manager then. Prior to Page 8 1 that I was a regional parts and service manager 2 sometime in the late '90s. 3 Q. That's the same job though? 4 A. The job description had changed. When I 5 was a regional parts and service manager I had 6 approximately 20 to 21 direct reports. In 2008 when 7 they had the core reorganization they created an area 8 business manager slot and so the organization changed 9 as far as the structure. 10 Q. Maybe it would be easier if we go back to 11 the beginning rather than going backwards. I was 12 going to only go part way backwards, but maybe it 13 would be easier if we went back to 1983, when you 14 started, what was your job there? 15 A. I was the field operations manager in the 16 Boston region. I worked -- 17 Q. What was the next job -- or how long 18 were you in that job approximately? I recognize it's 19 a long time ago and I don't care if it's to the day. 20 Just give me an approximate. 21 A. I've got a pretty good memory. It was 22 two years. 23 Q. So in 1985 what was your job? 24 A. I was still in the job. It started 25 October 26 of '83. So for '84 and '85 I was a field Page 9 1 operation manager in Boston. 2 Q. What was your next job? 3 A. I was promoted to the assistant regional 4 manager in the Denver region in January of '86. 5 Q. Are you originally from New England? 6 A. No, I'm from New York. 7 Q. What part of New York? 8 A. I was born in Manhattan, raised out in 9 Long Island. 10 Q. So '86 you moved to Denver? 11 A. Moved to Denver. 12 Q. How long were you there? 13 A. A year and a half. 14 Q. What was your next job? 15 A. I was promoted to be the national sales 16 operations -- not national -- national contest and 17 incentives manager for the Nissan division in Los 18 Angeles in our headquarters. 19 Q. And that was 1986 -- I'm sorry, 1987? 20 A. That was 1987. I believe it was late 21 July of '87. 22 Q. So how long did you stay in that job? 23 A. I was in that job for approximately a 24 little over a year, and then I became -- lateralled 25 over to the Infinity division, it was prior to their 3 (Pages 6 - 9) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 58 of 86 PageID: 197 Peter W. McAvoy - by Mr. Ellis Page 10 1 launch, I was the national sales operation manager for 2 the Infinity division, also based in our U.S. 3 corporate headquarters. When I say Los Angeles, it's 4 really Carson. 5 Q. What was the next job after that? 6 A. Next job after that I became the regional 7 sales manager in the southeast region which is in 8 Jacksonville, Florida. 9 Q. What year was that? 10 A. That was 1989 to 1992. I was there three 11 years in that position. 12 Q. Okay. What came next? 13 A. We went through a major reorganization at 14 Nissan with the field offices and we went, to the best 15 of my recollection we went from 11 regional offices 16 down to seven regional offices. 17 Q. Okay. 18 A. And I was offered the position of the -- 19 new position, new structure, they were everting the 20 pyramid they called it, and I became the dealer 21 operations manager for New York City in May of '92. 22 Q. New York City alone? 23 A. New York City alone. 24 Q. How many dealers are there in New York 25 City? Page 11 1 A. Eleven dealers. There were 11 dealers. 2 Q. What was -- how long did you remain in 3 that job? 4 A. Approximately a year and a half, two 5 years. 6 Q. So about 2000 -- I'm sorry, 1994? 7 A. '94 I would say. 8 Q. What happened next? 9 A. I became the field, you have to bear with 10 me on these titles, I think it was called field 11 operations manager, where, basically, majority of the 12 dealer operations managers in the entire northeast 13 region filtered everything through me because of my 14 experience and whatnot. 15 Q. So you were the field operations manager 16 for the region? 17 A. For the region, correct. 18 Q. And how long were you in that job? 19 A. Approximately two years. 20 Q. So '96 is the next move? 21 A. Yes. 22 Q. What did you become in '96? 23 A. Then I became the dealer operations 24 manager for northern New Jersey. 25 Q. North Jersey? Page 12 1 A. North Jersey. Primarily Passaic and 2 Bergen County, but it also covered Rockland County and 3 Westchester County, New York. 4 Q. Was that a promotion or a demotion or a 5 lateral? 6 A. Lateral. 7 Q. So how long were you the dealer 8 operations manager? 9 A. I'm going to say approximately two years. 10 Q. What was your next move? 11 A. Then I became the regional parts and 12 service manager for the northeast region. 13 Q. Is that the job where you had 20 to 25 14 direct reports? 15 A. Correct, approximately 25 direct reports, 16 correct. 17 Q. And you were in that job for what, 18 roughly ten years? 19 A. Roughly ten years. 20 Q. Now, in 2008 you testified that there was 21 a change in the job, it went from regional parts and 22 service manager to parts and service manager? 23 A. I believe that was the correct title. It 24 was a reorganization in the entire field organization, 25 it was called CORE, C-O-R-E, and I can't tell you off Page 13 1 the top of my head what the acronym stands for. 2 Q. Actually I think I can tell you, but it's 3 not worth looking. 4 A. And that came in I believe around April 5 2008. 6 Q. So what was the change in the job? 7 A. The change in the job is again they did 8 another restructuring in the field organization. They 9 created new positions called area managers, and an 10 area manager -- we had I believe four areas. So let 11 me give you an example. Perhaps in the New York area 12 that man then would have at least four dealer 13 operations managers and four fixed operations managers 14 reporting to him. So, in other words, he would have 15 four districts under an area. 16 Q. Okay. 17 A. And they did this nationwide. 18 Q. So what changed? 19 A. What happened is direct reports went 20 away. I'm still the subject manager expert for parts 21 and service, but as far as a field organization, the 22 field op, the fixed operations managers reported to 23 the respective area manager. 24 Q. Okay. 25 A. So we had 16 districts I believe, 16 4 (Pages 10 - 13) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 59 of 86 PageID: 198 Peter W. McAvoy - by Mr. Ellis Page 14 1 dealer operations managers for the sales side, 16 2 fixed operation managers for the parts and service 3 side, and they created four areas and then those teams 4 individual were broken into four separate teams. 5 Q. So would it be accurate to say you went 6 from being a manager of people to a manager of a 7 subject matter? 8 A. Combination of both. I mean, where 9 before I had to deal with all the HR issues with these 10 individuals, writing their performance reviews, but I 11 still was the subject matter expert for fixed 12 operations in the northeast region because many of the 13 individuals, whether they be the field personnel or 14 even the area managers had no level of expertise in 15 that end of the business at all, whether it comes to 16 retail parts and service, whether it comes to 17 wholesale, whether it comes to warranty programs, it 18 runs the gamut. 19 Q. Does that mean you went from being a 20 subject matter expert with people responsibility to 21 being simply a subject matter expert? 22 A. Correct. 23 Q. What's the most number of people that you 24 have had reporting to you at any one time? 25 A. I'm going to have to approximate and say Page 15 1 perhaps 25 people. 2 Q. Would that have been in the regional 3 parts and service manager job? 4 A. You know what, I have to go back a little 5 bit. I have to go back and look at when I was the 6 regional sales manager in Jacksonville, I can't recall 7 how many people I had direct reports, but -- 8 Q. Okay. 9 A. Again I'm going to have to guess. This 10 goes back since between '89 and '90, so I'm going to 11 have to say 20 to 25. 12 Q. What was the nature of the jobs that 13 reported to you? 14 A. Which position are we talking about? 15 Q. When you were in Jacksonville. 16 A. I was regional sales manager in 17 Jacksonville. They didn't call them dealer operations 18 manager, we called them -- the automobile industry 19 changes terminology but many times it's the same 20 position. But sales personnel that called on the 21 dealers and then all the staff managers that supported 22 the region, whether it be market representation, 23 whether it be distribution, there are a number of 24 different positions. 25 Q. So in your current job, going back to the Page 16 1 job you are in now, what are your duties? 2 A. Well, it's changed a little bit. 3 Initially the associated business management job, the 4 description was new when I first took it over, when 5 the position was created. At that time I was handling 6 extended service contracts, certified pre-owned and 7 the Nissan rental car program. Subsequent, since I've 8 had the position, the extended service contract 9 business or VSC's, as we like to call them. 10 Q. I'm sorry, what do you call them? 11 A. VSC, vehicle service contracts, extended 12 service contracts. 13 Q. VSC? 14 A. Right. That moved over to Nissan Motor 15 Acceptance, our finance company. And so primarily 16 right now I have Nissan rental car, I have certified 17 pre-owned, I have NOTOR, which is now our loyalty 18 program which has been added to it, and then recently 19 this past fall I picked up light commercial vehicles. 20 Q. You used an acronym that I want to make 21 sure I get right, NOTOR? 22 A. NOTOR, Nissan loyalty program. 23 Q. How do you -- what are the acronyms? 24 What's the acronym? 25 A. NOTOR is Nissan one-to-one rewards. Page 17 1 Q. N-O-T-O-R? 2 A. N-O-T-O-R. 3 Q. I'm sorry, what was the other thing you 4 said? 5 A. Certified pre-owned. 6 Q. And rentals. And there was a fourth? 7 A. And RC rentals. And now I have LCV, 8 light commercial vehicles, which are commercial 9 vehicle, cargo vans. 10 (Exhibit ^ , Job Description, was 11 received and marked for identification.) 12 Q. Can you take a look at the document with 13 the fancy sticker on the bottom. 14 A. Yes. 15 Q. Take a look at that for a minute and tell 16 me what it is. 17 A. It's, basically, the job description for 18 the regional associated business manager position 19 otherwise known as ABM. 20 Q. Now, have you seen that before? 21 A. I have. 22 Q. And how is it that you came to see that? 23 A. I saw it sometime in 2013, to the best of 24 my recollection, when it was produced. 25 Q. I meant to ask you this when we started. 5 (Pages 14 - 17) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 60 of 86 PageID: 199 Peter W. McAvoy - by Mr. Ellis Page 18 1 Where is your office? 2 A. It's on Cottontail Lane in Somerset, New 3 Jersey, 1501 Cottontail Lane. 4 Q. What percentage of your time do you spend 5 in the office as opposed to being in dealerships or 6 other commercial activities? 7 A. Well, primarily now I'm in the office a 8 lot more than I have been in the past. 9 Q. Could you give me a percentage of the 10 time? More than 50? 11 A. Yes. 12 Q. More than 75? 13 A. Right now, correct. 14 Q. More than 85? 15 A. No, I'd say more than 75. 16 Q. So somewhere between 75 and 85? 17 A. Correct. 18 Q. I just have a few questions about this 19 job description because there are so many acronyms 20 that I'm not sure I entirely understand. 21 You've described what a CPO is in the 22 rental NRC? 23 A. Correct. 24 Q. The job summary at the top says that you 25 implement and support DOM's, FOM's and NMAC FSM's in Page 19 1 implementation of CPO and NRC programs. I think you 2 may have used some of the titles for some of these 3 jobs. Can you go through and explain to me what all 4 these jobs are and what it is you do for them. 5 A. All right. Well, on a certified 6 pre-owned program, I mean that's, basically, a used 7 car that meets our qualifications, so we sell it, 8 basically, with a power train warranty. I'm, 9 basically, the subject matter expert on that. We have 10 100 -- 11 Q. What does that mean? 12 A. We have 190 dealers and with all the 13 different programs that we have, DOM's should be more 14 involved in it, but they're just not, and they're not 15 able to keep up, either because of turnover or for 16 whatever reasons. But dealers call me, they have 17 certain issues, car is not able to be certified 18 through CARFAX or they've had some issues with claim 19 issues, whatever the case might be, so I'm the liaison 20 that handles that program. 21 Q. So when you say DOM's should be able to 22 handle it, the DOM is what? 23 A. Dealer operations manager, he's assigned 24 11 dealers, but in many cases they don't know so what 25 they do is they tell the dealer to give me a call. Page 20 1 Q. So what type of calls do you usually 2 field, is it questions about whether a particular -- 3 A. It's amazing. 4 Q. Hang on. Let me finish the question 5 because otherwise the court reporter gets confused. 6 A. Understand. 7 Q. Does that mean that you're taking calls 8 about whether an individual vehicle qualifies for the 9 program? 10 A. Yes, or they weren't able to get it 11 qualified for the program. There's a whole inspection 12 process they must do. They need to check service COM 13 to make sure it was sourced out of the United States 14 out of Nissan North America, not Canada, not Guam, not 15 Puerto Rico. So they have to make sure it's not a 16 branded title. So you do that first. Then you follow 17 an inspection process. Then you need to use CARFAX, 18 which we have a proprietary CARFAX site on our dealer 19 portal site, some of them forget to use that. What 20 that does it tells them if there has been an accident, 21 air bag deployment or whatever other issues. 22 If it doesn't qualify to be certified, 23 then they can't advertise and sell it as a certified 24 car because at the time of delivery, say you're the 25 customer, it won't qualify. Page 21 1 Q. FOM's is something that you also used 2 before, is it field operations manager? 3 A. Fixed operations managers. They handle 4 the service, parts and service at the dealership 5 level. 6 Q. So you're supporting -- how is it that 7 you need to support them on the various programs that 8 you are responsible for? 9 A. Well, for instance, I mean, ideally a 10 fixed operations manager would like his dealer to be 11 involved in certified pre-owned because it's an 12 opportunity during the inspection process to bring the 13 car up utilizing OEM parts and whatnot, so they want 14 to make sure the dealers are engaged in that activity. 15 In many cases they just -- because they 16 come to me. When the dealer has an issue he really 17 doesn't care whose responsible for it, he just wants 18 the problem to be resolved. So he might need to go to 19 his dealer operations manager, his fixed operations 20 manager or even his FSM from NMAC. So I wind up 21 working with all of them. 22 Q. I gotcha. 23 Now, it says you visit dealerships. I'm 24 sorry, I skipped one. 25 That NMAC is the financing arm of the 6 (Pages 18 - 21) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 61 of 86 PageID: 200 Peter W. McAvoy - by Mr. Ellis Page 22 1 company, right? 2 A. Right, Nissan Motor Acceptance Corp. 3 Q. What's an FSM? 4 A. That's their field organization. 5 Q. Is that like field service manager, field 6 sales manager? 7 A. Finance service manager I believe. 8 Q. And so how do you get involved in helping 9 the NMAC? 10 A. They have objectives to look for, they 11 have retail penetration both on the new car side of 12 the business and the used car side of the business. 13 So it's in their best interest to get the dealers 14 engaged in selling certified pre-owned. To the point 15 where we actually have our incentive programs are 16 through NMAC, whether it be subsidized APR programs on 17 selected models or what we call captive cash, which is 18 like a $500 rebate to the consumer which has now been 19 reduced to $400, so. 20 Q. The rental, who are you renting to? Is 21 this leased vehicles? 22 A. No, Nissan Rental Vehicle, I mean, is a 23 rental car program where dealers can either do 24 outright purchase of some vehicles in their own 25 inventory or finance them through a commercial lease Page 23 1 through NMAC. We have an outside insurance carrier so 2 that they can be rented at the dealership location to 3 consumers, whether they be off-the-street rental 4 consumers, customers that perhaps their car is in a 5 body shop, as opposed to sending them to Enterprise 6 and putting them in a Toyota or a Honda, we would like 7 to keep them in a Nissan. And if it's a warranty 8 issue or something to that effect, parts on back 9 order, the claim and actually payment for the rental 10 would occur through the warranty. 11 Q. I gotcha. 12 So for the most part what some dealers 13 call loaners it is? 14 A. Some call them loaners. We don't have a 15 loaner program per se overall. Dealers can have a 16 loaner program. We have what we call the NRC, it's a 17 Nissan rental program. And it's very stringent as far 18 as how it's operated. Right now they have to use a 19 software package beginning on April 1, that's 20 mandatory. 21 I have field representatives that go out 22 to make sure that they're working it. They're not 23 Nissan employees, they are through Merits -- this 24 group, I'm sorry, is through Frontline Performance 25 Group, it's a company out of Orlando, Florida. Page 24 1 Q. Who are these people? 2 A. It's an outside contractor that Nissan 3 has a business relationship with. It helps us manage 4 the NRC program. 5 Q. What do the folks do? 6 A. Well, they go in to make sure, first of 7 all, hopefully to grow their business, but also to 8 make sure they're in program compliance, meaning that 9 rental contracts are double sided, that they are 10 following all the procedures accordingly. 11 Q. So the individuals that go to, actually 12 go in the dealers and report to you on compliance with 13 the rental car program are an outsourced group? 14 A. That is correct, Frontline Performance 15 Group. 16 Q. And do they report to you when they are 17 done what it is they are checking? 18 A. They copy me. They write contact reports 19 on all their visits and then weekly summaries, and I'm 20 copied on all of them. 21 Q. Who is the person? 22 A. The gentleman's name is Glen Neids. 23 Q. What's his job? 24 A. He's like their national manager. 25 Q. If you go down on the job function part Page 25 1 of Exhibit D-1, I think I've covered point one, but 2 point two says that you communicate and implement all 3 I guess that's Nissan North America marketing 4 initiatives. 5 Who do you communicate them to? 6 A. Primarily to the DOM's, the FOM's, the 7 NMAC FSM's and also the Frontline representatives. 8 Q. But not to the dealers directly? 9 A. Not written form, unless a dealer sends 10 me an e-mail or reaches out to me and then I respond 11 directly. 12 Q. Going down to item four, "tracks 13 statistics and revenue," and it goes on from there. 14 What is it you actually do with the 15 statistics and the revenue? 16 A. Well, it's really not revenue based, 17 that's a misnomer, it's not revenue based, it's really 18 sales statistics primarily, sales statistics to see if 19 the dealers are listing their inventory. We have a 20 lot of dealers that don't list their inventory, which 21 we prefer. 22 Q. List their inventory for the -- 23 A. For the certified units. So a dealer 24 might have 400 new cars on his lot, he might have 100 25 used cars, he might have 50 certified pre-owned cars 7 (Pages 22 - 25) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 62 of 86 PageID: 201 Peter W. McAvoy - by Mr. Ellis Page 26 1 that he knows he has already gone through service COM, 2 he has already made sure that they are eligible based 3 on going through CARFAX and he's done the inspection, 4 so he knows they're eligible to be listed and sold as 5 certified pre-owned vehicles. And we have a whole 6 procedures manual or process manual that he must 7 follow. 8 Q. Did -- so how do you know whether 9 somebody is not listing everything in their inventory? 10 A. Well, I have a large volume dealer that 11 sells a lot of certified pre-owned. I get a report 12 from National and shows that he doesn't list anything, 13 or I can just plug in the dealership name, zip code, 14 through any of the sites, whether it be cars dot com 15 or auto trader dot com. If I don't see any listings, 16 then I know he's not listing them. 17 You have about eight different outside 18 vendors that do that. We -- basically, it's a free 19 service from us. So if you were to go to cars dot 20 com, auto trader dot com in Morris County, you would 21 see which dealers, whether it be Toyota or Nissan, 22 whatever, are listing certified pre-owned vehicles. 23 You see the CARFAX register and everything else. 24 Q. Going over to the second page of Exhibit 25 D-1, item number seven says, "identify and contacts Page 27 1 audiences eligible for VPP." 2 What is VPP? 3 A. That is our company purchase plan, 4 vehicle purchase plan, and it's either for friends, 5 family, business associates, college grads or 6 military. 7 Q. The last item says, "assists regional 8 sales operations manager." 9 A. Are you on number eight? 10 Q. Yes. 11 Do you see number eight there? 12 A. Yes. 13 Q. What is it that -- do you report to the 14 regional sales operations manager? 15 A. In the northeast region? 16 Q. Yes. 17 A. I do not. 18 Q. So what is it you're helping him with 19 there? I don't quite understand based on the 20 description. 21 A. Well, I didn't write the description. 22 Q. I understand. No, I wasn't being 23 critical of you. 24 A. I didn't write the description. I'll 25 give you a real world. Primarily the regional sales Page 28 1 ops manager, only if he's preparing decs or 2 information for the RVP, or whatnot, he might come to 3 me and say, "Can you give me the information on how 4 we're doing on NOTOR," or "how we're doing on 5 certified pre-owned." "How many rental cars do we 6 have in service?" "How many are eligible to be turned 7 or flipped?" Because they have to be in a minimum of 8 four months, 3,000 miles. I'm going to be the subject 9 matter expert. "How many do you estimate will sell 10 this month or turn?" 11 Also when -- there's a subsidy grid for 12 NRC, but also our retail incentives, dealer cash, 13 customer cash, they can all be additive and used to 14 reduce the, what's the word, for the cost of the 15 vehicle, whether it be an outright purchase or whether 16 it be a commercial lease. So I keep the mad stack and 17 keep on top of that. 18 Q. Now, if I asked you this before I'm 19 sorry. So you -- this says you report to the 20 regional sales operations manager; is that not true? 21 A. That's not true. 22 Q. Did you ever report to the regional sales 23 ops manager? 24 A. No. 25 Q. Who do you report to? Page 29 1 A. I report to right now John Wattanabe and 2 Arcangelo Lofaro, I would say I report to the two of 3 them. 4 Q. Wattanabe? 5 A. Correct, he's the regional operations 6 manager. 7 Q. Who is the second? 8 A. Arcangelo Lofaro, he's the regional 9 marketing manager. He's primarily, he's my direct 10 report. He would be the one I would report to. 11 Q. So you don't report to Wattanabe, you 12 report to -- 13 A. Well, I'm going back to when I had my 14 last review, it was with Arcangelo Lofaro, and he 15 approved a vacation request. He's in the system as he 16 approves it. 17 Q. So? 18 A. But I'd say I have a dotted line to John 19 Wattanabe, so. 20 Q. So are Wattanabe and Lofaro peers? 21 A. Yes. 22 Q. Who do they report to? 23 A. They report to Michael Colleran, regional 24 vice-president. 25 Q. So we have a regional VP who sits in 8 (Pages 26 - 29) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 63 of 86 PageID: 202 Peter W. McAvoy - by Mr. Ellis Page 30 1 Somerset? 2 A. Correct. 3 Q. Then we have an operations manager and we 4 have a marketing manager for the region? 5 A. Correct. Then you have a, you also have 6 a parts and service manager, but that's not the title. 7 I can't recall what it is. 8 Q. Okay. 9 A. And they're all senior level manager 10 jobs. 11 Q. So you report to the marketing manager? 12 A. Correct, in the northeast region, 13 correct. 14 Q. Right. Okay. Now, I realize there have 15 been a number of reorganizations and the org chart 16 probably doesn't look like what it used to look like, 17 but when you were the regional parts and service 18 manager from '98 to 2008 what was the title of the job 19 that you reported to? 20 A. I reported to the regional VP, 21 vice-president. It wasn't Michael Colleran at that 22 time. 23 Q. Understood. 24 Who is the parts and service manager now? 25 A. The position is open. The woman just Page 31 1 resigned. 2 Q. Who was the person before she resigned? 3 MS. NIEDWESKE: Objection to form. What 4 region are you talking about? 5 Q. The northeast region, that's what we've 6 been talking about, right? 7 A. Yes. 8 Q. So what was the name of the person who 9 was in the job? 10 A. Kelly Mc Donald, she just resigned 11 recently. 12 Q. Again I know there have been 13 reorganizations, but has -- is the regional parts and 14 service manager today the same job as you held from 15 '98 to 2008 or at least close to it? 16 A. As far as being ideally the subject 17 matter expert, yes, but she, or that position right 18 now does not have the fixed operations managers 19 reporting to them. They still report to the AGM. 20 Q. So it's more like the job that you were 21 in from 2008 to 2011? 22 A. Correct. 23 Q. Now, in 2011 you, as I understand it, 24 went through a job change from parts and services 25 manager to the associated business manager job; is Page 32 1 that correct? 2 A. Correct. 3 Q. I would like you to describe for me the 4 circumstances under which that job change occurred. 5 How did it come about? 6 A. Well, to the best of my recollection they 7 came to me, specifically Tim Gilbert came to me, he 8 was the regional operations manager at that time, and 9 mentioned they were going to make a number of changes 10 and that I was going to take this newly created 11 position "associated business manager," which at that 12 particular point in time we didn't even know what it 13 was, there was no job description written up. It was 14 primarily going to be handling extended service 15 contracts and then pick up CPO and NRC, which wasn't 16 really a big focus at that time. 17 Q. Okay. So Tim Gilbert came to you one day 18 and told you what, that you were going to be moved 19 into the ABM job? 20 A. Correct. 21 Q. And did he describe the job to you? 22 A. Primarily it was going to be the job that 23 Kristin Adonolfy (phonetic) had, which when she was 24 handling at the time it was really just dealing with 25 security plus, the VSC end of the business, that was Page 33 1 the prime area, because it's a revenue generating 2 business, extended service contracts, VSC's, as we 3 discussed earlier. But I would also probably be 4 picking up NRC and CPO. There was no real job 5 descriptions written up at that particular point in 6 time. 7 Q. You said there was somebody in the job, 8 was it Kristin? 9 A. Kristin Adonolfy. She was handling the 10 VSC end of the business. That was the job that had 11 been defined primarily before that, the extended 12 service contract business. 13 Q. So, now, are you familiar with the grade 14 system that the company uses to set salary bans? 15 MS. NIEDWESKE: Object to form. 16 Are you talking about now or over the 17 last 20 years? 18 Q. Well, let's start with now. 19 A. Well -- 20 Q. I'm not asking you how salary is set, but 21 do you realize that there are jobs that are called A-I 22 and there are jobs that are called A-H and there's 23 probably a lot of other alphabet -- 24 A. They were, but they're not anymore, now 25 it's back to numeric. 9 (Pages 30 - 33) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 64 of 86 PageID: 203 Peter W. McAvoy - by Mr. Ellis Page 34 1 Q. Is that right? 2 A. Yes. 3 Q. Since when? 4 A. We found out about it in 2015. 5 Q. So what grade or salary ban, or whatever 6 they call it, is the ABM job now? 7 A. Well, I've been told when -- during the 8 ROI it's an A-H. 9 Q. I thought you said it was numerical. 10 A. I don't have the sheet in front of me. I 11 don't want to misspeak. It's now a numerical grade. 12 Q. I'm talking about 2016. 13 A. I know. And I don't have the number in 14 front of me. 15 Q. Okay. 16 A. I don't want to speculate. 17 Q. That's fine. I don't want you to either. 18 And I should have said that when we started out, I 19 don't want you to guess, but if you can estimate 20 that's a different story. 21 So what you understand is as of 2015 the 22 company went from having an alphabetically designated 23 system of grades to a numerical system? 24 A. Correct. 25 Q. And you don't know right off the top of Page 35 1 your head what your grade number is at this point? 2 A. I do not. 3 Q. So prior to that was it an alphabetical 4 system? 5 A. It became an alphabetical system in 2008 6 with CORE. 7 Q. And prior to 2008 was it not 8 alphabetical? 9 A. It was always numerical from the day I 10 was hired on. The numerical numbers might have 11 changed, but it was numerical. 12 Q. I understand. 13 So do you -- well, the job description, 14 D-1 that you have in front of you, says that the job 15 of regional associated business manager is a grade 16 A-H. Does that correspond to what you understood? 17 A. At what particular point in time? 18 Q. Prior to 2015 when they went back to 19 numbers. So between 2013, which is the date of this 20 document, and 2015, when you said they went from alpha 21 to numerical, was it your understanding that you were 22 an A-H? 23 A. Yes. However it went -- this was a 24 newly created job in 2011. 25 Q. Right. Page 36 1 A. This job description wasn't written until 2 November of 2013. 3 Q. Right. 4 A. And today, like I mentioned earlier, it 5 was an A-H in 2014 and now it's numeric. 6 Q. Okay. So when it was created in 2011 7 were you told what salary grade it was going to be? 8 A. I was told that my pay would not be 9 affected and that was it. They told me -- 10 Q. Go ahead. 11 A. They told me my pay would not be 12 affected. 13 Q. Did they tell you what salary grade the 14 job would be? 15 A. No, the grade was -- no, not initially. 16 With Tim Gilbert there was no conversation as far as 17 grade. I would lose a grade, but he didn't say you'll 18 be an A-H. 19 Q. Okay. So he said you would lose a grade? 20 A. And my pay would not be affected. 21 Q. So what grade were you, if you remember, 22 in 2011 before Tim Gilbert came to you and told you 23 you were going to a different job? 24 A. Again I don't want to guess. It was 25 either an A-J or an A-K. I don't recall right now. Page 37 1 Q. Is that, an A-J higher paid or lower paid 2 than a -- I'm sorry. Is an A-J higher or lower paid 3 than an A-H? 4 A. Higher pay. 5 Q. So the farther you go into the alphabet 6 the higher the compensation? 7 A. Right. 8 Q. So at this point you don't remember 9 exactly what the salary grade was of your job as parts 10 and service manager; is that correct? 11 A. Correct. Correct. 12 Q. You know that when you were made the ABM 13 in 2011 you were being dropped down a grade? 14 A. Correct. 15 Q. But you don't remember anybody 16 identifying what grade that was to you? 17 A. Not in conversation. The only time it 18 came to my attention is when I got the e-mail, I don't 19 -- 20 Q. We'll get to the e-mail. I think I know 21 what e-mail you're talking about. But I'm really 22 talking about, you know, what people told you at the 23 time. 24 A. At what particular point in time? 25 Q. In November 2000 -- did you say it was 10 (Pages 34 - 37) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 65 of 86 PageID: 204 Peter W. McAvoy - by Mr. Ellis Page 38 1 October, November 2013 when they changed your 2 position? 3 MS. NIEDWESKE: 2011. 4 Q. I'm sorry, October 2011. 5 A. October 2011. 6 Q. Right. 7 A. Right, that's when I became the 8 associated business manager. 9 Q. Right. And I think you said that Tim 10 Gilbert was the person who told you you were going to 11 be put in that position, right? 12 A. It wasn't really much, but the 13 conversation was, "We're's going to make a 14 reorganization, we're going to have you take up the 15 job that Kristin is doing, you'll probably pick up 16 some other responsibilities." 17 The job description had not been flushed 18 out. As you can see the job description even here 19 today is written in 2013, and since then I've picked 20 up two other assignments I mentioned earlier, the 21 light commercial vehicle and the NOTOR program. So it 22 wasn't really flushed out. The primary job, primarily 23 responsibility was to handle the extended service 24 contract business. 25 Q. So is there anything more to that Page 39 1 conversation that you had with Tim Gilbert? 2 A. The biggest bone of the conversation 3 overall was you lose a grade, but your money will not 4 be touched, you will not be affected. 5 Q. Anything else you remember out of that 6 conversation? 7 A. Well, I made a request, "I'll think about 8 it." And then I came back and said "I want something 9 in writing" because with the way all the 10 reorganizations have gone at Nissan, I don't want a 11 verbal, I want a contractual obligation. 12 Q. So how many conversations did you have 13 with Tim Gilbert about this? 14 A. Probably three from the initial 15 conversation until the follow-up visit, my request to 16 be red circled, and then the follow-up visit that "I 17 want it in writing," which he then said he wasn't sure 18 he could give it to me. 19 I said, "If we don't get it in writing, 20 we have nothing else to talk about." 21 And then he came back to me and said, 22 "I've got it in writing." And I said, "I would like a 23 copy." And he said," I don't know if I can give it to 24 you." I said, "Then we have a problem." Then he came 25 back and said, "I've got it in writing, I can give you Page 40 1 a copy." And then Edit Ballard sent him the e-mail, 2 "Yes, you can give Pete a copy of this." 3 Q. Let's go back to the beginning of this 4 series of meetings. Let me ask you before that, did 5 you ever talk to anybody else at the company other 6 than Tim about this job change? 7 A. Perhaps Gary Frigo, he might have 8 mentioned the fact of this job, I can't recall. Tim 9 Gilbert was the liaison. Tim Gilbert was my direct 10 report, he was the one, he came to my office, closed 11 the door, unannounced. It wasn't an appointment, it 12 wasn't a calendar item. 13 Q. Hold on. I just want to get one thing at 14 a time. 15 You remember talking to Tim Gilbert. You 16 may have talked to Frigo, Gary Frigo? 17 A. Tim reports to him. 18 Q. Anybody else you talked to? 19 A. No. 20 Q. So the first conversation was it with Tim 21 or with Gary Frigo? 22 A. I believe it was with Tim. 23 Q. Describe that conversation, where did it 24 occur? 25 A. In my office. Page 41 1 Q. What time of day? 2 A. I can't tell you time of day. 3 Q. How long did it last? 4 A. Approximately 20 minutes. 5 Q. Okay. 6 A. The initial conversation. 7 Q. Now, describe to me what you said to him 8 and what he said to you. 9 A. He walked in my office. He said, "You 10 have a minute?" I said, "Sure." He closed the door. 11 And he mentioned "We're going to be making some 12 changes." "We would like you to take the job over 13 that, basically, Kristin is doing," which is the 14 vehicle service contract business. 15 Q. Okay. 16 A. I said, "Okay." And he said, "Your pay 17 won't be affected," because he assumed I'd think at 18 that point that I would ask. He said, "You'll be 19 giving up a grade level, but your pay will not be 20 affected." 21 Q. Okay. 22 A. And I said, "Well, let me think about 23 it." 24 Q. Did he offer you a choice of jobs? 25 A. No. 11 (Pages 38 - 41) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 66 of 86 PageID: 205 Peter W. McAvoy - by Mr. Ellis Page 42 1 Q. Did you discuss with him in that 2 conversation what would happen if you didn't want to 3 take the job? 4 A. Never came up. It was almost a request 5 on his behalf. 6 Q. Well, what did you think was going to 7 happen if you didn't agree? 8 A. Don't know. He was nervous even 9 approaching me on it. 10 Q. How do you know he was nervous? 11 A. Because I think because of my experience. 12 Q. What indication? 13 A. I don't know. 14 Q. Did he tell you he was nervous? 15 A. He appeared nervous. He was very 16 uncomfortable. 17 Q. In what way? 18 A. He was uncomfortable. I could hear it in 19 the tenor of his voice. 20 Q. What was it about the tenor of his voice? 21 A. You are going back to 2011. I'm just 22 telling you my first impression is he was very 23 uncomfortable having a conversation. The fact that he 24 walked into my office and closed the door, he didn't 25 bring me down to his office, he didn't set up an Page 43 1 appointment, he didn't bring me into the conference 2 room. It was a very casual conversation. He walked 3 in and said, "Could I talk to you for a minute," and 4 he closed the door, standing in my office while I was 5 sitting at my desk in front of my computer. 6 Q. Did he sit down? 7 A. He did not. 8 Q. So he stood the whole time? 9 A. He did. 10 Q. Were his hands shaking? 11 A. I don't recall. 12 Q. You said he was nervous. 13 A. It was the tenor of his voice. 14 Q. You said the conversation lasted about 20 15 minutes? 16 A. Approximately. 17 Q. Do you remember anything more about the 18 conversation other than what you just described? 19 A. No. 20 Q. Did you talk about like details of the 21 job? 22 A. Only primarily it was the VSC, the 23 extended service contract business. Nothing else had 24 been flushed out. There was no job description. As 25 you can see the job description is dated 2013. Page 44 1 Q. Totally understand. 2 Did you -- were people laid off in the 3 CORE reorganization do you remember? 4 A. I don't recall. 5 MS. NIEDWESKE: Objection. When? 6 Q. Well, the CORE reorganization took place 7 in October 2011, so I guess that's when. 8 A. No, it was 2008, CORE was 2008. 9 Q. Okay, I'm sorry. 10 A. CORE is 2008. 11 Q. So 2000 -- 12 A. ROI is 2014. 13 Q. In 2011 was just another shuffle of the 14 deck? 15 A. Correct. 16 Q. So was anybody laid off in 2011? 17 A. I don't recall. 18 Q. Is there anything else that you remember 19 about this first conversation you had with Tim 20 Gilbert? 21 A. No. 22 Q. So did you then have a second 23 conversation with Tim Gilbert? 24 A. I did because when we ended the first 25 conversation I said I'd get back to him, I'd think Page 45 1 about it. 2 Q. Okay. And what was it you had to think 3 about? 4 A. As I said initially, it was more of a 5 request, it was more of a conversation. It wasn't an 6 announcement that, "hey, we're going to move you in 7 this job." He came to me, it was more of a request. 8 And at that point I came back and I said, "You said my 9 pay will not be affected." 10 Q. I'm sorry, we're into the second 11 conversation now? 12 A. Correct. 13 Q. Where did that take place? 14 A. Back in my office. He approached me 15 again. He said, "Did you have a chance to think about 16 it?" 17 Q. How long after the first conversation was 18 the second one? 19 A. I'm going to -- approximately the next 20 day. 21 Q. Okay. 22 A. Day or two later, that's from the first. 23 Q. So he comes back into your office and 24 says what? 25 A. "Have you given it some thought?" 12 (Pages 42 - 45) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 67 of 86 PageID: 206 Peter W. McAvoy - by Mr. Ellis Page 46 1 Q. And what did you say? 2 A. And I said, "I'll take the position, I 3 understand about the grade issue, but I want my salary 4 red circled." 5 Q. What did he say to that? 6 A. He said, "What's red circled?" 7 Q. What did you say? 8 A. I told him "I've done a little research 9 on it," and I said, "my salary was capped during the 10 CORE in 2008 at $192,000.00 and I have not seen a 11 merit since then. You're telling me my job today, 12 even though I'll be giving up a grade, I won't lost 13 any salary." I said, "Well, that's all just 14 conversation, I want it to be red circled by HR and I 15 want it in writing." 16 Q. So what did he say? 17 A. He said, "Let me see what I can do." 18 Q. And? 19 A. He left my office. 20 Q. That was the end of the conversation? 21 A. Yes. 22 Q. How long did that conversation last? 23 A. Fifteen minutes tops. 24 Q. You've just given me a description in 25 about a minute. Do you remember anything about the Page 47 1 other 14 minutes? 2 A. We talked about red circle. He was 3 really interested in the whole red circle idea he had 4 never heard the term before. And actually he said, "I 5 need to talk to you more often," he said, "that's a 6 great idea." 7 He didn't blame me for asking to get it 8 in writing, but he wanted to know about red circle, 9 and I told him what I was able to ascertain by doing a 10 little research. 11 Q. What sort of research did you do? 12 A. Human resources, Googling human resources 13 issues. 14 Q. So did you then have a third -- I'm 15 sorry. Do you remember anything else that happened in 16 that second meeting? 17 A. No, I don't recall. 18 Q. So now there was a third meeting with 19 Tim, right? 20 A. Yes. 21 Q. Now, you said something about meeting 22 with, there might have been a meeting with Gary Frigo, 23 right? 24 A. Perhaps. 25 Q. Do you remember -- Page 48 1 A. Not a meeting regarding salary, not a 2 meeting regarding grade, perhaps just saying "you'll 3 be taking over the VSC business," that was all he was 4 focussed on. And of all the RVP's he had a keen focus 5 on the vehicle service contract business, more so than 6 most of his counterparts across the business. He was 7 very focussed on that. 8 Q. So Frigo was then in the job? 9 A. He was the RVP. 10 Q. That Colleran is in now? 11 A. Correct. 12 Q. Tell me about the third conversation you 13 had with Tim Gilbert. 14 A. He comes back to my office again 15 unannounced. He said, "I've got it in writing, you'll 16 be red circled and your salary will not be affected as 17 long as you're with the company." 18 Because my initial conversation was "I 19 don't want my salary to be affected." When he had 20 this conversation October 2011 I was a month and a 21 half shy of my 60th birthday. Grades didn't mean 22 anything to me, it's all about the money. I didn't 23 want my salary affected until I chose to retire from 24 the company. And I specifically said to Tim, "whether 25 I retire at 62, 65 or 70 years of age, I don't want my Page 49 1 salary to be affected," and that's why I want it in 2 writing. 3 Q. So he used the words "as long as you're 4 with the company your salary will never change"? 5 A. Correct. 6 (Exhibit D-2, E-mail, was received and 7 marked for identification.) 8 Q. I'm sorry, before I ask you about D-2 is 9 there anything else that occurred in the third meeting 10 that you had with Tim Gilbert? 11 A. In the third meeting when he came back 12 and said he's got it in writing from HR, I said, 13 "That's great, I would like a copy of it." And he 14 looked at me and he said, "I don't know if I can give 15 you that." I said, "Well, we have nothing to discuss 16 until I get it in writing, I want a hard copy of the 17 document." 18 Q. What do you mean you have nothing to 19 discuss? 20 A. As far as accepting the associated 21 business manager position at a lower grade even though 22 they're telling me my salary wouldn't be affected. 23 Q. Was there ever a discussion about this 24 being a rotation? 25 A. No. 13 (Pages 46 - 49) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 68 of 86 PageID: 207 Peter W. McAvoy - by Mr. Ellis Page 50 1 Q. No? 2 A. No. How could it be considered a 3 rotation, it's a job -- I mean, I was a month and a 4 half shy of my 60th birthday. I already had almost 30 5 years with the company. It wasn't a developmental 6 position for me. 7 Q. What's a rotation? 8 A. Rotation would be rotational assignments 9 that you would maybe take workers within the company, 10 they put them through distribution, merchandising, 11 market rep, rotation through fixed operations to learn 12 the back end of the business or move them over to the 13 finance division or move them over to the sales side, 14 that's a rotation. 15 Q. Have you ever been in a rotation before? 16 A. When I was at Ford Motor Company I was. 17 Q. Well, at Nissan have you ever been in a 18 rotation? 19 A. Well, you could argue rotation when I 20 went from the dealer operations manager, you could 21 argue when I went to regional parts and service 22 manager it was a rotation. 23 Q. I'm sorry, I'm not trying to argue 24 anything. Were you ever told by the company or were 25 you ever on a list of rotational assignments? Page 51 1 A. No, I have not, but the company uses the 2 terminology rotation in HR, they use that with their 3 employees. They talk about rotational assignments to 4 give the employee greater breath, greater experience, 5 you know, as far as to develop them for future 6 assignments and promotional opportunities. 7 I wasn't being discussed as a rotation in 8 2011, since I had been in the business since 1978 and 9 almost 60 years old and 30 years with the company. 10 Nobody would look me in the eye and say, well, this is 11 a rotational assignment or developmental assignment, 12 that would be ludicrous. 13 Q. Look at D-2. Do you see D-2? 14 A. Yes. 15 Q. This is actually two documents, the first 16 of which is an e-mail from Edith Ballard to Tim 17 Gilbert? 18 A. Right. 19 Q. And then the second one is, I guess it's 20 Gilbert forwarding you the e-mail from Edith that says 21 it's okay to give Pete the e-mail, and then her e-mail 22 at the bottom. 23 A. Correct. 24 Q. Now, her e-mail, which is on both pages 25 actually of Exhibit D-2, doesn't it use the term Page 52 1 rotation? 2 A. It does. 3 Q. So weren't you being put on a rotation? 4 A. If you want to call it that you can. All 5 I cared about was having my salary red circled. 6 Q. It doesn't matter what I want to call it, 7 it's not up to me to call it anything. But the 8 company called it a rotation, right? 9 A. They did call it a rotation. 10 Q. So what's a rotation mean to you? 11 A. A rotation is usually an assignment based 12 on further development for the employee. 13 Q. Did you say to Tim Gilbert any words to 14 the effect that, "Hey, this isn't a rotation"? 15 A. No, that wasn't the issue. The only 16 issue I had at that particular point in time was that 17 my salary would be red circled. He agreed, they 18 agreed and that's all I was concerned about. I was 19 not concerned about rotation, I was not concerned 20 about grade. Grades have changed. Grades have 21 changed again as you are well aware. 22 Q. So you did not argue with anybody about 23 whether this was a rotation back in 2011? 24 A. It was immaterial to me. All I wanted 25 was my salary red circled. Page 53 1 Q. But the answer is no, you did not? 2 A. No, I did not what? 3 Q. No, you did not argue with Tim Gilbert or 4 Edith Ballard that the movement to associated business 5 manager wasn't a rotation? 6 A. It wasn't an issue with me. 7 Q. But you've got to answer the question. 8 Did you argue with them about it or not? 9 A. I did not. 10 Q. Okay, thanks. 11 Now, you said that Tim Gilbert said to 12 you that your salary would be red circled as long as 13 you're with the company, I think those are the words 14 you used from coming out of Tim Gilbert's mouth, 15 right? 16 A. No. I -- yes, correct. 17 Q. So you believed he said to you that you 18 would be red circled as long as you're with the 19 company, right? 20 A. Correct. 21 Q. Well, would you agree with me that 22 Exhibit D-2 doesn't say that? 23 A. I was only focussed on red circle. 24 Q. I understand that, but would you agree 25 with me that D-2, this e-mail from Edith Ballard 14 (Pages 50 - 53) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 69 of 86 PageID: 208 Peter W. McAvoy - by Mr. Ellis Page 54 1 doesn't say you are going to be red circled for as 2 long as you're with the company? 3 A. That's your interpretation. 4 Q. Well, is it your interpretation? 5 A. All I was concerned about was that I was, 6 my salary was red circled. Tim had told me my salary 7 would not be affected as a result of this move, they 8 would not touch my salary. I came back and said, "I 9 want to be red circled." "I do not want my salary to 10 be affected as long as I'm with the company until I 11 elect to retire." 12 He agreed. He then said, "I got it in 13 writing." I then went back and said, "I want a copy 14 of it." 15 This is the document they gave me. I 16 didn't at that particular point in time drill down to 17 the word "rotation," it was immaterial to me. I was 18 more concerned about red circled and my salary was 19 protected as long as I worked for the company. 20 Q. Do you believe that this e-mail from 21 Edith Ballard, Exhibit D-2, is consistent with your 22 conversation with Tim Gilbert? 23 A. Yes. 24 Q. So where in that e-mail does it say that 25 you are going to be red circled as long as you're with Page 55 1 the company? 2 A. I never thought I'd be in this particular 3 predicament with Nissan at this particular point in 4 time, I thought they would live up to their 5 obligation. 6 Q. I'm not quibbling with what you thought 7 and where we are. I'm just wanting to know if there's 8 anything in that e-mail that you interpret as saying 9 that you'll have a red circled salary for as long as 10 you're with the company? 11 A. Tim and I had a conversation and the 12 conversation was that my salary would be protected as 13 long as I was with the company. 14 Q. Okay. My question to you is are there 15 words in Exhibit D-2 -- 16 A. It doesn't say that. 17 Q. Okay. Thanks. 18 Now, did you go back and argue with Tim 19 or with Edith Ballard that the e-mail was not 20 consistent with your discussion with Tim Gilbert? 21 A. No. I felt at that particular point in 22 time -- I'm not an attorney -- I felt at that 23 particular point in time that I got what I asked for, 24 that my salary would be red circled, it would not be 25 affected as long as I was with Nissan. Page 56 1 Q. So the answer is you had no further 2 discussion with either one about the, how long you 3 would be red circled for? 4 A. Correct. The red circle to me had no 5 time limit involved. 6 Q. How long was it between the first 7 conversation you had with Tim Gilbert and the last 8 conversation to the best of your recollection? 9 A. To the best of my recollection it was 10 over three days, four days tops. 11 Q. So all within a week, basically? 12 A. I think it broached a week, correct. 13 (Exhibit D-3, E-mail, was received and 14 marked for identification.) 15 Q. Can you tell me what this document is? 16 A. Exhibit-3 is the announcement that they 17 sent out at 9:56 p.m. on October 17th. 18 Q. And at the very bottom of the page 19 there's a description of your rotation to associated 20 business manager. 21 A. Correct. 22 Q. Looking at this there are 15 or so 23 people, I don't know, maybe more than that, that are 24 all being rotated according to this document, right? 25 A. Correct. Page 57 1 Q. Is this something that would occur 2 periodically in the Nissan organization? 3 A. This is large. 4 Q. When you say "this is large"? 5 A. Well, outside of a major reorganization 6 within a regional office to have these many moves 7 done, it's quite a bit. 8 Q. Do you have any understanding from 9 anybody at the company as to why this occurred in the 10 way it did? 11 A. No, I do not. 12 Q. Some of them appear to be lateral 13 movements, like, for example, there's Joe Montgue 14 moving from district eight to district nine, same job. 15 Do you see that? 16 A. Yes. 17 Q. So am I correct the way that's described 18 that's a lateral move? 19 A. Perhaps. I don't know. 20 Q. If you don't know, that's fine. 21 A. I don't know. 22 Q. I'm not trying to get you -- 23 A. I don't know. 24 Q. How about down farther on the page, 25 somebody like Vantresca moves from a DOM position, 15 (Pages 54 - 57) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 70 of 86 PageID: 209 Peter W. McAvoy - by Mr. Ellis Page 58 1 which would be district operations manager? 2 A. Dealer operations manager to the LPM, 3 loyalty performance manager. 4 Q. Right. Now, is that a lateral or an up 5 or down? 6 A. I don't know at that particular point in 7 time. 8 Q. Now, it says down below that between 9 Vantresca and you that Arcangelo Lofaro is being 10 promoted from an FOM job to the job that you had held? 11 A. That is correct. 12 Q. And he's now -- 13 A. He's now the regional marketing manager. 14 Q. So he's been promoted again since 2011? 15 A. I would assume that's correct, yes. 16 Q. Now, have you applied for any jobs within 17 Nissan since 2011? 18 A. No. 19 Q. Why not? 20 A. Why not? 21 Q. Right. 22 A. I don't understand the question. 23 Q. Well, you've been told that your salary 24 is going to be reduced substantially, right? 25 A. I received a letter from Nissan in 2014. Page 59 1 Q. And, in fact, there have been certain 2 steps -- 3 A. That is correct, two reductions so far. 4 Q. So why haven't you tried to find another 5 job within Nissan? 6 A. Well, I haven't been encouraged by senior 7 management to do that. And once I received the letter 8 in 2014 I didn't think my opportunity was all that 9 great, I had already went to, obtained a lawyer. 10 Q. Well, does Nissan post open positions? 11 A. They do from time to time, yes. 12 Q. Where are they posted? 13 A. On the employee portal. 14 Q. Employee portal, so that's a place 15 employees can go to learn things? 16 A. Correct, about open positions that might 17 become available. 18 Q. So is there a part of the portal that's 19 dedicated to open positions? 20 A. Yes. 21 Q. What's it called? 22 A. What's it called. 23 Q. Like a job board? 24 A. It's not called job board. I don't 25 recall what the exact terminology is. Page 60 1 Q. Since 2014 have you gone to it? 2 A. I have been in it. 3 Q. And have you identified any jobs that you 4 might like to have? 5 A. What I would like and what they would 6 offer me are two separate things. 7 Q. Well, how do you know they wouldn't offer 8 you what you would like? 9 A. Well, ever since 2014 I figured the whole 10 discussion would be moot. 11 Q. Why? 12 A. Why, they've already after 30 years 13 decided to reduce my salary. 14 Q. Well, okay. But -- all right. Let me 15 show you Exhibit-4. 16 (Exhibit D-4, ^ , was received and marked 17 for identification.) 18 (Exhibit D-5, ^ , was received and marked 19 for identification.) 20 Q. Take a look at four and five, if you 21 will. 22 A. Okay. 23 Q. Can you tell us what four is? 24 A. Well, document four is one of the 25 documents I received during the, in my meeting on the Page 61 1 ROI. 2 Q. And I take it D-5 is another document you 3 received at the same time? 4 A. That is correct. 5 Q. Who had your -- who was it you met with? 6 A. I met with Gary Frigo. I met with Edith 7 Ballard and John Wattanabe in Gary Frigo's office. 8 There was a set schedule that was set up I believe 9 over two days to announce the reorganization. 10 Q. And this is what you called the ROI 11 reorganization? 12 A. They call it the ROI. 13 Q. What do you call it? 14 A. They call it the regional optimization 15 initiative, ROI. 16 Q. Right. 17 So did that meeting occur on April 8th, 18 2014? 19 A. I believe that's the date. 20 Q. How long did it last? 21 A. Our particular meeting, I don't think it 22 lasted more than perhaps ten minutes actual meeting, 23 maybe even less. It was very short. 24 Q. So in this meeting is Gary Frigo, Edith 25 Ballard and John Wattanabe? 16 (Pages 58 - 61) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 71 of 86 PageID: 210 Peter W. McAvoy - by Mr. Ellis Page 62 1 A. Correct. 2 Q. And you obviously? 3 A. Correct. 4 Q. Why don't you describe what happened in 5 the meeting. 6 A. Well, I was in the office and it was just 7 John and myself, we just waited. He had the materials 8 or the package that they were going to give me and we 9 waited for Edith and Gary to show up. Gary was the 10 last one to show up. And at that particular point in 11 time Gary opened it up and just said, "Pete, as you 12 know we are going for a reorganization," something to 13 that effect. Then they presented me these materials. 14 They, basically, just gave me the documents to the 15 best of my recollection and I looked at the documents. 16 Q. So Frigo gave you both these documents at 17 that meeting? 18 A. It was these two documents and there was 19 an additional document, some description I believe 20 with the ROI. I believe there was also a letter from 21 Fred Diaz. There was additional documentation besides 22 these two. 23 Q. So was there any discussion of the 24 documents? 25 A. Not to any great detail. I mean, they Page 63 1 wanted me to look it over and I looked it over. They 2 told me I had a certain amount of time to decide what 3 I wanted to do, what I was being offered. 4 Q. Okay. 5 A. And when they needed it back. 6 Q. What do you understand the choices were 7 for you on April 8th, 2014? 8 A. This was the choice. This was the 9 choice. 10 Q. Right. But I want you to describe it in 11 your own words, what did you understand the choice to 12 be? 13 A. Take it or leave it. 14 Q. Take what or leave what? 15 A. Well, this was the job. I mean, this is 16 what I was being offered, as the document says, "if 17 you choose to accept this offer please return a signed 18 copy to Star Perry, HR business partner, or Edith 19 Ballard. If you choose not to accept this position 20 you have the option to post for different jobs in your 21 current or another location. If there is no available 22 position that you obtain through the posting process 23 your Nissan employment will end and you will not be 24 eligible for benefits under the ROI separation plan." 25 Q. Okay. Page 64 1 A. And I was not offered any benefits under 2 a separation plan, it was, basically, this was it. 3 There was no severance discussed. 4 Q. Do you know whether there were people who 5 were offered severance in 2014? 6 A. Yes. 7 Q. How do you know that? 8 A. Because it was common knowledge that some 9 of them discussed it openly, not only in our region, 10 but in other regions. 11 Q. And how do you know, do you know why 12 certain people were offered benefits but say, for 13 example, you weren't? 14 A. I do not. 15 Q. So I take it you signed Exhibit D-4 and 16 returned it? 17 A. No, I did not. In the room with Edith, 18 Gary and John I looked at it, I then looked at them 19 and said, "We had an agreement, my salary was red 20 circled." And I looked at Edith and she just put her 21 hands up in the air and said "ROI." And I looked at 22 her and I said, "Are you kidding?" And then I said, 23 "I'll see you all in court," and I got up and walked 24 out. 25 Q. Anything else? Page 65 1 A. That was it. Frigo smiled and laughed 2 and I walked out. 3 Q. So what did Wattanabe do? 4 A. He just sat there. 5 Q. Did Edith say anything other than what 6 you just described? 7 A. That was it, it's the ROI, just held up 8 her hands. 9 Q. So taking a look at D-5, did you take 10 your time or take the time to read this entire 11 document during that meeting? 12 A. Yes. 13 Q. Now, was it your understanding, or let me 14 ask it this way. Did you have an understanding as of 15 April 8, 2014 that you could apply for other jobs 16 within the organization, within Nissan in other words? 17 A. All I -- you know, all I know is what I 18 got, the documents here, these two documents, and 19 additional documents I've mentioned but you haven't 20 presented. 21 Q. I understand. I'm not asking what the 22 documents say because I can read the documents. I'm 23 asking what your understanding was in your head as of 24 April 8, 2014, did you have an understanding that you 25 could, if you wanted to, apply for another job within 17 (Pages 62 - 65) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 72 of 86 PageID: 211 Peter W. McAvoy - by Mr. Ellis Page 66 1 Nissan? 2 A. Perhaps. 3 Q. What do you mean by "perhaps"? 4 A. Well, when you get a document on April 8 5 saying that your job and your pay is being reduced, it 6 seemed very unlikely that I was going to get a job at 7 a comparable pay that I was making at that particular 8 point in time. I didn't see any point in posting for 9 a job at that particular point in time. And at that 10 particular point in time they kind of gave an 11 indication that there weren't going to be all that 12 many opportunities and you had a limited time span, 13 you only had until, as you can see on this document I 14 had to apply or say that I would accept this position 15 by April 23rd, that certainly didn't give you enough 16 time. And I did accept it on April 21. 17 Q. No, I understand that. 18 A. Yes. 19 Q. Let me ask the question a little 20 differently. 21 Did you understand as of April 22, the 22 day after you signed this document, that you could, if 23 you wanted to, apply for another job within Nissan? 24 A. I didn't think it was an issue. 25 Q. I don't know what you mean by that. Page 67 1 A. Well, I had already talked to some other 2 individuals in the company, some people that were not 3 even offered a position, and they were told by their 4 managers at that particular point in time that the 5 opportunities would be few and far between. 6 Q. Is that because there was a reduction in 7 force at this point? 8 A. I don't know. 9 Q. Who was your boss in 2014? 10 A. In 2014. 11 Q. At the point of this document being 12 presented. 13 A. It would be John Wattanabe. And a dotted 14 line to Gary Frigo. I dealt mostly with Gary Frigo in 15 many cases as the RVP. 16 Q. So did you -- well, first of all, did 17 you understand that as of April 22nd, 2014 you could 18 apply for another job? 19 A. You could. 20 Q. Did you ever talk to John Wattanabe about 21 what your prospects would be? 22 A. No. 23 Q. Did you ever talk to Gary Frigo about it? 24 A. No. 25 Q. Did you ever talk to anybody in Page 68 1 management? 2 A. No. No. 3 Q. You've got to wait until I finish the 4 question. 5 Did you ever talk to anybody above you in 6 management about what the likelihood is that you would 7 get another job within the company? 8 A. I did not. 9 Q. And I take it you did go on to the 10 employee portal to see jobs that were posted, but you 11 chose not to apply for any of them? 12 A. Not at that time. 13 Q. At any time did you apply? 14 A. I did not. 15 Q. At what point did you go on to the 16 employee portal? 17 A. A year ago. I don't know. I can't tell 18 you when. Not at that particular point in time. 19 Q. I understand that you didn't do it in 20 April 2014, but my question is since April 2014, we're 21 almost two years since then, how many times did you 22 look at open jobs on the employee portal? 23 A. I don't recall. 24 Q. Was it more than once? 25 A. Yes. Page 69 1 Q. More than ten times? 2 A. I don't recall. 3 Q. Did you -- would it be more than five 4 say? 5 A. Yes. 6 Q. So somewhere between five and ten? 7 A. Perhaps. 8 Q. Do you recall seeing any jobs that you 9 wanted or that you thought you would be good at? 10 A. Well, to be honest with you, I mean, if 11 the company really wanted me to take a position that 12 was based on my experience and abilities and job 13 performance I would have either the ROM job or the RMM 14 job today. 15 Q. That really wasn't the question I asked. 16 The question I asked was whether you saw an opening 17 that you thought you would be good at. I mean, did 18 you see any jobs that you thought you could do that 19 would be at a higher salary? 20 A. In the northeast region? 21 Q. Anywhere. 22 A. I can't recall. 23 Q. But in any event you didn't apply for 24 any? 25 A. I did not. 18 (Pages 66 - 69) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 73 of 86 PageID: 212 Peter W. McAvoy - by Mr. Ellis Page 70 1 Q. Now, you said that if the company really 2 wanted you they would put you in what jobs? I didn't 3 catch them. 4 A. Either the ROM job, the regional 5 operations job that John Wattanabe is in today. He 6 used to work for me. I hired him. Or Arcangelo 7 Lofaro, who used to work for me, and I interviewed 8 him. 9 Q. Okay. 10 A. I mean, Arcangelo just celebrated his 11 30th birthday this week. 12 Q. You said you hired Arcangelo Lofaro? 13 A. I interviewed him, yeah, we interviewed 14 him. 15 Q. You interviewed him or you hired him? 16 A. Well, I didn't hire him. We usually do 17 panel interviews or we interview people, and he was 18 working for me indirectly as a specialist when he was 19 with the company. John directly worked for me and I 20 did, I was involved making him that offer. And he did 21 work for me when I was a regional parts and service 22 manager. 23 Q. And who is it do you think that makes, 24 that made the decision to put Lofaro in the regional 25 marketing job? Do I have that job right, whatever Page 71 1 that job is that he's in? 2 A. I don't know. 3 Q. You don't know who put him in that job? 4 A. I can only assume, but I don't know per 5 se, I mean, whether it be the RVP in coordination with 6 HR, whatever. 7 Q. So the RVP presently being? 8 A. Michael Colleran. 9 Q. Colleran, okay. 10 Have you ever gone to Colleran and asked 11 him if there are higher graded positions that you 12 would be able to move into? 13 A. No, I have not. 14 Q. Why not? 15 A. Well, I mean, I've already taken legal 16 action against the company, it seemed inappropriate to 17 have any conversation. And frankly he's somewhat 18 standoffish and avoiding, I mean, based on my personal 19 situation. 20 Q. Well, why is the fact that you've taken 21 legal action mean that you can't go talk to the guy 22 about a promotion? 23 A. I don't think it's going to happen. 24 Q. So, basically, you didn't talk to him 25 because you didn't think it was going to happen? Page 72 1 A. Well, and because I've taken legal action 2 against the company. 3 Q. Okay. 4 A. And indicated I planned on doing so since 5 April 8th. 6 Q. I understand that. 7 A. I'm sorry, not 8th, 21st, that's when the 8 company became more of an adversarial relationship on 9 April 21st. 10 Q. What's been adversarial about your 11 relationship since April 21st other than the fact that 12 you decided to take legal action? 13 A. How do you mean? They've reduced my 14 salary over the last two years. 15 Q. Understood. 16 A. How else would I read that? 17 Q. Have they done anything else? 18 A. Have they done anything else? 19 Q. To you that you consider -- 20 A. I thought that was enough. 21 Q. It may be. I'm not arguing with you. 22 A. That's my answer, that's enough. I think 23 they sent to me a clear indication when they gave me 24 that letter on April 8th. 25 MR. ELLIS: Off the record. Page 73 1 (A break was taken.) 2 BY MR. ELLIS: 3 Q. Mr. McAvoy, what is it -- you allege age 4 discrimination in your complaint. My question is what 5 do you allege the company did to you on account of 6 your age? 7 A. Well, I think it's readily apparent that 8 they are going for a youth movement and they wanted to 9 demote me and cut my pay to induce me to retire or 10 leave the company so they could put somebody in, a 11 younger, probably less money into the same position. 12 Q. So you believe that you were demoted on 13 account of your age; is that correct? 14 A. Demoted is not the issue here. The issue 15 here is I had an agreement with the company with 16 salary and red circle and they breached the agreement. 17 We had a contractual obligation that they should have 18 fulfilled and they're breaching the agreement. 19 Q. Well -- 20 A. And on top of that, as far as age 21 discrimination I think it's readily apparent that 22 their age discrimination is involved. 23 Q. Well, I'm just trying at this point to 24 figure out what it is they did to you on account of 25 your age. Are you saying -- would you agree with me 19 (Pages 70 - 73) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 74 of 86 PageID: 213 Peter W. McAvoy - by Mr. Ellis Page 74 1 that in 2011 you were demoted? 2 A. We didn't call it a demotion, it was 3 giving up a grade and my salary would be protected 4 until I retired. 5 Q. Okay. Well, do you believe -- as part 6 of that transaction you went from a higher grade to a 7 lower grade, right? 8 A. Give me that again. 9 Q. As part of the job change in 2011 you 10 went from a higher grade to a lower grade, correct? 11 A. Correct. 12 Q. Now, do you believe you were moved from a 13 higher grade to a lower grade in 2011 because of your 14 age? 15 A. Yes. 16 Q. Why do you think that? What is it 17 somebody said or did that led you to believe that? 18 A. Nobody said anything. 19 Q. So what's your basis for believing that? 20 A. Because the person that took the position 21 was 26 years old and I was a month shy of my 60th 22 birthday. He went in a job that required, the 23 company's posting at that particular point in time 24 said I believe, to the best of my recollection, 25 required at least ten years of comparable experience Page 75 1 or experience in that position prior to getting it, 2 and at that particular point in time he had only been 3 maybe -- he was 26 years old and today he's 30 years 4 old. 5 Q. Who is this again? 6 A. Arcangelo Lofaro. 7 Q. And he's the guy that you said you 8 participated in hiring? 9 A. Yes. 10 Q. Did you recommend that he be hired? 11 A. Well, I can't recall. I have interviewed 12 so many employees. Looking at exhibit, just to give 13 you a little background when I look at this Exhibit 14 D-3, majority of these people have worked for me. 15 Q. Going back to the demotion, or whatever 16 you want to call it, the loss of grade in 2011, you 17 believe that the company transferred you from parts 18 and service manager to associated business manager 19 because of your age, right? 20 A. All I know is what I saw, and what I saw 21 was, here I was a month shy of my 60th birthday and 22 they backfilled my position with somebody who didn't 23 meet qualifications of the job as far as time and 24 experience, who was approximately 26 or 27 years of 25 age at that time, that's what I know. Page 76 1 Q. So -- 2 A. That's my factual observation. 3 Q. Anything else that leads you to believe 4 it was because of your age? 5 A. No. 6 Q. Has he done a good job, by the way, 7 Lofaro? 8 A. I don't supervise him, I don't know. 9 Q. Now, do you believe that the company -- 10 now, is it your understanding that in 2014 the company 11 downgraded the job of associated business manager 12 across the country? 13 A. Yes. 14 Q. And is it your belief that they did that 15 in order to discriminate against you on account of 16 your age? 17 A. No, I don't believe that it was directed 18 just to me at that particular point in time. I 19 believe that the company, that during the ROI in 2014 20 that age discrimination does exist. 21 Q. But you don't believe that they 22 downgraded the ABM job just to get rid of you? 23 A. I don't know what their intent was. All 24 I know is they said to me, they gave me a letter that 25 said my pay was going to go down to half of what it Page 77 1 was at that particular point in time, that's all I 2 know. 3 Q. I understand that's all that you know, 4 but my question is do you believe that that pay 5 reduction is age discrimination? 6 A. I'm not an attorney. 7 Q. No, you're a plaintiff. 8 I mean, are you telling me that you have 9 no idea whether that was age discrimination or not? 10 A. I let the evidence lead where it leads. 11 Q. Anybody ever tell you that your pay was 12 reduced or was going to be reduced on account of your 13 age? 14 A. No. As I stated earlier, the 15 conversation that took place on April 8 was very 16 brief, they gave me the package and, as I mentioned 17 earlier, what that conversation was all about. 18 Q. My question was broader than that 19 conversation. 20 Has anybody at any time ever told you 21 that the reduction of your salary was because of your 22 age? 23 A. No. 24 Q. Now, as of today how much of that salary 25 reduction has actually taken place? 20 (Pages 74 - 77) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 75 of 86 PageID: 214 Peter W. McAvoy - by Mr. Ellis Page 78 1 A. Well, I'm in the second stair step. The 2 current stair step was effective January 1 of 2016. 3 Current salary is now 159,381. It's listed on Exhibit 4 D-5. 5 Q. So you're pointing to D-5? 6 A. Yes. 7 Q. So your salary is presently 159,381? 8 A. Correct. Perhaps some small bones in 9 there, but that's the stated salary. 10 Q. Did you get a bonus for 2015? 11 A. I believe I did. 12 Q. What's the bonus based on? 13 A. That's a good question some days. Based 14 on the company hitting certain targets in the North 15 America. 16 Q. Is individual performance a component? 17 A. No, not to the best of my knowledge. No, 18 that's addressed through merit increases. 19 Q. Did you get a merit increase in 2015? 20 A. I haven't received a merit since 2008. 21 Q. Is that because of the various red 22 circlings? 23 A. No, I wasn't red circled in 2008. In 24 2008 there was a CORE restructuring and I had a grade 25 reduction then, but my salary was firm at 192,000. I Page 79 1 never received a merit increase after that. 2 Q. So you had a grade reduction in CORE too? 3 A. Correct. That was across the board 4 around the country. CORE was a reorganization and my 5 salary remained the same from 2008, well, until this 6 first reduction in January of 2015, seven years later. 7 Q. After the CORE reduction was your salary 8 above the top of the range for that grade? 9 A. It was above all the grades that were 10 posted at that particular point in time. 11 Q. I don't understand what you mean. 12 A. In other words, I had been a senior 13 manager and I had gone from the numeric to the 14 alphabet, I think it was A-L or whatever. It was, 15 approximately, I'm doing this from memory, maybe 183, 16 185,000. I was making 192 then. Regardless of what 17 grade, I was making more than every posted grade at 18 that particular point in time after CORE. I was top 19 of the pay grades, all pay grades. 20 Q. So is that why you couldn't get a merit 21 increase after that? 22 A. Correct. 23 Q. Have you gotten performance appraisals 24 since then? 25 A. Yes. Page 80 1 Q. What have your performance appraisals 2 been? 3 A. Very good. 4 Q. What was the highest graded job that 5 you've been in since you were at Nissan? 6 A. Well, the numeric grade, and I'm doing 7 this a little bit from memory, I was promoted as a 8 senior manager when I went to Los Angeles in 1987. At 9 that time it was a grade 48, to the best of my 10 recollection. I remained a senior manager all the way 11 through CORE in 2008 when they had that reorganization 12 and that's when they went -- I wasn't then a senior 13 manager, I had a grade reduction -- we all had -- 14 the whole grade structure was changed. I had a grade 15 reduction, but my salary remained the same. And then 16 from 2008 on I never got a merit because I was paid 17 higher than every grade that was published. 18 Q. Did you use the phrase "senior manager"? 19 What does that mean? 20 A. It's terminology. Again at Nissan there 21 has been so many restructuring in titles and whatnot, 22 but you have specialists, you have planners, you have 23 managers and then you have senior managers, then you 24 have directors, you have vice-presidents, that's 25 primarily the structure, and then there's ranges Page 81 1 within there. 2 Q. Does senior manager refer to a particular 3 pay grade? 4 A. Yes. 5 Q. And the current alpha structure, what is 6 your understanding? 7 A. I'd be speculating. 8 Q. Then don't worry about it. I'll find 9 out. Thanks. 10 A. Like I mentioned, it's not alpha anymore, 11 it's now numeric. 12 Q. Further complicates matters. 13 So do you believe that Nissan has 14 discriminated against you on account of your age? 15 A. Yes. 16 Q. And what did Nissan do to you that you 17 believe was discriminatory? 18 A. Reduction in salary. 19 Q. Anything else? 20 A. Well, I think it's a reduction in the 21 salary to entice me to either to retire or leave the 22 company. 23 Q. Okay. 24 A. It's certainly not based on performance. 25 My performance reviews speak for themselves. 21 (Pages 78 - 81) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 76 of 86 PageID: 215 Peter W. McAvoy - by Mr. Ellis Page 82 1 Q. Okay. 2 A. And never did Nissan ever indicate any 3 problem with my performance ever, ever, ever in my 32 4 years. 5 Q. Has anybody come to you and told you they 6 thought you should retire? 7 A. No, only Gary Frigo mentioned at his 8 retirement party, he yelled across the room in front 9 of 30 employees, "When are you going to get McAvoy to 10 retire?" 11 Q. Gary Frigo is retired? 12 A. He is now. 13 Q. So something happened at his retirement 14 party? 15 A. At his farewell party. 16 Q. When did that take place? 17 A. I don't have the exact date. That's been 18 provided. 19 Q. So where was it? 20 A. It was in Bridgewater, New Jersey at 21 Maggiano's in a private room. 22 Q. Maggiano's the chain? 23 A. Yes, in Bridgewater, New Jersey. 24 Q. How many people were there did you say? 25 A. Well, the whole regional office was Page 83 1 invited, so it would have been the entire head count. 2 But it was at the beginning, you know, the bar was 3 open, food had not been served, people were mingling 4 and he yelled across to John Wattanabe, "When are you 5 going to get McAvoy to retire yet," something to that 6 effect. 7 Q. So this is January 20, 2015 according to 8 the complaint; is that your recollection? 9 A. That's the date. 10 Q. So Frigo -- how old is Frigo? 11 A. Frigo, I believe he's 56 today. 12 Q. "Today" meaning? 13 A. This year I mean. He celebrates his 14 birthday I believe January 5th, I'm January 4th. 15 Q. So Frigo's retiring and he says to 16 Wattanabe, "Why haven't you got McAvoy to retire yet?" 17 A. Correct. 18 Q. And what did Wattanabe say back? 19 A. I didn't look at -- he didn't reply. 20 Q. Okay. Did anybody reply? 21 A. No. 22 Q. Did you say anything? 23 A. I was shocked he said it. 24 Q. Why were you shocked? 25 A. I was just surprised why he would say it Page 84 1 in that type of environment at his farewell party. 2 Q. Well, it's his retirement party, right? 3 A. Well, he was forced out of the company. 4 Q. And why do you say that? 5 A. Why do I say that, because I know. 6 Q. How do you know that? 7 A. Because it was self-evident. It was 8 about an issue with NADA surveys. It was common 9 knowledge in the company. 10 Q. What's an issue with -- NADA is National 11 Association of? 12 A. Automotive Dealers Association. They do 13 winter dealer surveys and summer dealer surveys, they 14 call them dealer attitude surveys. And he was under 15 the gun that previous summer, as far as the summer 16 attitude survey, and he was encouraging his field 17 force, the dealer operations manager really put 18 pressure on the dealers to get favorable surveys and 19 to the point where it blew up and he was forced to 20 retire. 21 Q. And how do you know that that's why he 22 was -- 23 A. We all know what happened with NADA. 24 There were letters that were written. When the NADA 25 surveys came out there were no surveys from the Page 85 1 northeast region because they thought they had been 2 tampered. So when NADA published the surveys the book 3 was blank. There were letters, there were I believe 4 articles on automotive news. 5 Q. Okay. 6 A. I could go on. 7 Q. So immediately after that Frigo was 8 retired? 9 A. Well, that summer, it was the summer 10 attitude survey, but, yeah, it was announced pretty 11 much that he would be retiring at the end of the 12 calendar year, which he did. And this was his 13 farewell. 14 Q. So Frigo said that, you didn't respond? 15 A. I didn't know what to say. 16 Q. Nobody else responded? 17 A. No. They're standing around with drinks 18 in their hand and just mingling. 19 Q. Sure, I understand. 20 A. They hadn't seen him either because it 21 was in January and I believe his last effective day 22 would probably be approximately the end of the 23 calendar year, so they hadn't seen him. 24 Q. Anybody else come and talk to you or 25 anybody come and suggest to you that you should 22 (Pages 82 - 85) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 77 of 86 PageID: 216 Peter W. McAvoy - by Mr. Ellis Page 86 1 retire? 2 A. No. 3 Q. So who is it do you think within the 4 company who is discriminating against you on the basis 5 of your age? 6 A. I can't answer that, I don't know. All I 7 know is what I have in front of me today and the 8 documents I received on April 8th. 9 Q. Is there anything aside from those 10 documents and aside from what you've already described 11 that lead you to believe that you're the victim of age 12 discrimination? 13 A. I believe there was age discrimination 14 throughout Nissan with the ROI. 15 Q. So are you saying that it's not directed 16 at you personally, it's company-wide? 17 A. Not company-wide, I think it was in 18 effect with the ROI which only affected those people 19 in the regions. 20 Q. Why? 21 A. You have to distinguish between 22 company-wide. Nissan North America and the sales and 23 marketing in the regional offices, where it would be 24 the five Nissan regional offices and the two Infinity 25 offices, everybody that either lost their job, to the Page 87 1 best of my knowledge, or took severe pay cuts were all 2 in a protected age group. 3 Q. Okay. 4 A. Of which I am one. 5 Q. When you use the term "protected age 6 group" what do you mean? 7 A. We all know it's over 40, but in my 8 particular instance of the individuals that I know of 9 per se I believe most of those individuals were in 10 their fifties or sixties. 11 Q. I don't know what we all know, but I know 12 that in New Jersey there is no limit, so. 13 MR. ELLIS: Is this filed under New 14 Jersey? 15 MS. NIEDWESKE: It was removed. We filed 16 initially in state court and then you had it 17 removed. 18 (Exhibit D-6, Responses to 19 Interrogatories, was received and marked for 20 identification.) 21 Q. Exhibit-6 is your responses to 22 interrogatories that were sent to you by my office and 23 if you could take a look at the back page of that 24 exhibit, the very last page, and tell me if that's 25 your signature there? Page 88 1 A. That is my signature. 2 Q. Now go to page four. 3 A. Okay. 4 Q. I want to ask you about some of the folks 5 that are identified in response to interrogatory 6 number two. 7 A. Okay. 8 Q. And see if I understand what their 9 information might be concerning the allegations you 10 make in your complaint. 11 A. Okay. 12 Q. Have you ever talked to Jose Munoz about 13 age discrimination? 14 A. I have not. 15 Q. Have you ever talked to him at all? 16 A. I have not. 17 Q. Ever in your life? 18 A. We have not had a conversation. 19 Q. How about Fred Diaz? 20 A. No. 21 Q. Never had a conversation with him? 22 A. No. 23 Q. Why is it you believe Mr. Diaz would know 24 about what you call the factual support for the causes 25 of action set forth in the complaint including claims Page 89 1 of age discrimination? 2 A. Well, as I mentioned earlier in my 3 testimony, he was one of the individuals I received a 4 letter from when the ROI was initiated. He would have 5 participated in the meetings that took place regarding 6 the ROI. There were meetings at least six months 7 prior to the launch or the initiative, and I know that 8 all these individuals were directly involved. 9 Q. How do you know that? 10 A. Gary Frigo. 11 Q. So Gary Frigo told you who was involved 12 in setting up the ROI? 13 A. Not just Gary Frigo, but it was common 14 knowledge within the company that they were having 15 regular meetings in Franklin, Tennessee involving a 16 reorganization. And many of us thought it was going 17 to be a VSO, VRO and instead it turned into the ROI. 18 Q. VSO? 19 A. Like a voluntary retirement plan or 20 something to that effect. 21 Q. So who is it that Mr. Frigo told you was 22 involved in this reorganization discussion? 23 A. But it wasn't just Mr. Frigo. 24 Q. Just I want to ask you for now for Mr. 25 Frigo. Common knowledge I can't do anything with, but 23 (Pages 86 - 89) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 78 of 86 PageID: 217 Peter W. McAvoy - by Mr. Ellis Page 90 1 I can do it with what Mr. Frigo told you, so what did 2 he tell you? 3 A. We knew that there were meetings down in 4 Nashville. 5 Q. And who was -- did he tell you who was 6 involved in the meetings? 7 A. Not per se, no. 8 Q. I thought did he tell you that Fred Diaz 9 was involved in the meetings? 10 A. I would make that assumption. 11 Q. What do you mean by that? 12 A. Well, I'm assuming he was in -- he 13 didn't say to me, Pete, I want you to know we're 14 having a series of meetings and Fred Diaz is involved 15 in all these meetings. 16 Q. Did he tell you that Diaz was involved in 17 any of the meetings? 18 A. Well, Fred Diaz was senior 19 vice-president, he would have to be. The letter that 20 I received on April 8th came from Fred Diaz announcing 21 the reorganization. 22 Q. So it's your assumption that he was 23 involved in the discussion and would know about the 24 impact on all the workers? 25 A. I think it's a safe assumption. Page 91 1 Q. That's not for you to decide. You can 2 tell me it's your assumption. 3 A. It's my assumption. 4 Q. The next person down, Derrick Hatami. 5 A. Yes. 6 Q. Have you ever talked to him? 7 A. I have not. 8 Q. Is this another situation where you are 9 assuming by his job title that he was involved in the 10 discussions? 11 A. Correct. 12 Q. Toby Perry? 13 A. No, I have not met the gentleman. 14 Q. It's a male? 15 A. Yes. 16 Q. Again is this a situation where you are 17 assuming by virtue of the job title that this person 18 would have been involved? 19 A. Correct. 20 Q. How about Jim Detrude, is that how you 21 pronounce it? 22 A. Jim Detrude. At that particular point in 23 time around the ROI he was not in that position, he 24 would have been in NMAC, but he would know of it now 25 because of his current position as director of human Page 92 1 resources. He was a director I believe of NMAC at 2 that particular point in time. 3 Q. What is it that you think he would know 4 about the red circling issue? 5 A. My assumption is he would have my entire 6 file, he would know everything. 7 Q. Have you ever talked to him? 8 A. On my case? 9 Q. Yes. 10 A. No, but I know Jim Detrude personally. 11 He used to work in our region. 12 Q. So when is the last time you talked to 13 him? 14 A. Oh, boy. The last time, it would have 15 been prior to the ROI, but not in his position as 16 director of human resources, probably director of 17 NMAC. 18 Q. Is he Edith Ballard's boss? 19 A. Yes. 20 Q. Is that why you think he would know about 21 your red circling issue? 22 A. Absolutely. 23 Q. Mark Stout? 24 A. He was a vice-president of HR. 25 Q. Have you ever talked to him? Page 93 1 A. Not regarding the ROI. I've met Mark and 2 I've talked to Mark. I've had dinner with Mark. 3 Q. How long ago was the last time you talked 4 to Mr. Stout? 5 A. I'm going to say it would have to be 6 around, maybe around 2001, 2002. I just don't recall. 7 Q. Is this another person where you assume 8 by his job title that he would have been involved in 9 the ROI? 10 A. Absolutely. 11 Q. And why is it you would assume that he 12 knew about this red circling issue? 13 A. Well, because Mark Stout was 14 vice-president of HR in North America and Edith 15 Ballard would have been one of his reports, worked for 16 him in that department. How could he not know? 17 I don't know the actual chain in the HR 18 department, but Mark Stout, David Obersteadt, Greg 19 Ramsey, Edith Ballard. 20 Q. Okay. 21 A. Walter Burchfield was directly involved, 22 he worked under Mark Stout. 23 Q. You're getting a little bit ahead of 24 ourselves here. 25 A. Okay. 24 (Pages 90 - 93) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 79 of 86 PageID: 218 Peter W. McAvoy - by Mr. Ellis Page 94 1 Q. Detrude you said is Edith Ballard's boss? 2 A. Today I believe. It may be a step above. 3 Q. Was Stout in charge of HR for the North 4 America at that point? 5 A. Yes. 6 Q. And Obersteadt I take it also was 7 involved in HR at that point? 8 A. Yes. 9 Q. And I guess Ramsey as well? 10 A. Yes. 11 Q. Do you know the differences in the 12 responsibility between Obersteadt, Ramsey and Ballard? 13 All of them appear in your interrogatory responses to 14 have the same title. 15 A. No, I don't, today I do not, no, I do 16 not. 17 Q. So have you ever talked to any of them 18 about either age discrimination or your red circling 19 issue? 20 A. I have not. 21 Q. So you are assuming that they know by 22 virtue of their title? 23 A. Correct. 24 MS. NIEDWESKE: Are you asking whether 25 Edith Ballard, whether he spoke with Edith Page 95 1 Ballard? 2 Q. I'm sorry, we already talked about Edith 3 Ballard. 4 A. She's directly involved. 5 Q. Yes. 6 How about Burchfield? 7 A. Yes, Wally Burchfield, Walter Burchfield, 8 he was director of HR during the ROI. 9 Q. So what is it you think he's going to 10 know? 11 A. Well, I think he knows, I think he 12 knows -- I would assume he knows what went on in his 13 HR department. 14 Q. But you haven't actually talked to him 15 about this? 16 A. No. I know Walter Burchfield, I've dealt 17 with Walter Burchfield in a previous position prior to 18 director of human resources. 19 Q. How long has it been since you talked to 20 Wally Burchfield? 21 A. Since he worked for John Spoon in parts 22 and service I'm going to say 2008, something like 23 that, 2007 perhaps, something like that. That's 24 approximate. 25 Q. Now, who is John Spoon? Page 96 1 A. John Spoon is retired now, but at that 2 point he was, it says retired vice-president of after 3 sales. They used to say vice-president or parts and 4 service. They keep changing titles. 5 Q. Understood. 6 A. But he's retired now. 7 Q. And have you talked with him about your 8 claims of age discrimination? 9 A. I have not. 10 Q. How about your red circling issue? 11 A. I have not. 12 Q. Again this is someone that you are 13 assuming by virtue of the title that he would know 14 something about either one of them? 15 A. It's a very safe assumption. 16 Q. Okay. 17 A. He's very close with Gary Frigo. And I 18 do know he was directly involved in the whole ROI 19 development discussion. 20 Q. How do you know that? 21 A. Because there was a conference call in 22 our region and some comments were made and I'm aware 23 of it. 24 Q. Some comments were made by whom and about 25 what? Page 97 1 A. John Spoon made regarding a conference 2 call regarding a reorganization within the company. 3 Q. So you were on a conference call? 4 A. I was not, John Spoon was in our regional 5 office. 6 Q. How do you know there was such a 7 conference call? 8 A. Because it was a calendar item in our 9 region and he took a, I believe it was a video 10 conference call in our region. And subsequent to that 11 there was a delay in our meeting, our major market 12 review, and he made some comments that were in earshot 13 of some other individuals that I became aware of. 14 Q. So who were the individuals that told you 15 what happened in the conference call? 16 A. Brian Barrett. 17 Q. Brian Barrett. 18 Anybody else? 19 A. No. 20 Q. What did Brian Barrett tell you happened 21 on the conference call? 22 A. At that particular point in time there 23 was a conversation that they were looking at a 24 voluntary retirement or voluntary separation so that 25 if they went ahead and initiated something like that, 25 (Pages 94 - 97) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 80 of 86 PageID: 219 Peter W. McAvoy - by Mr. Ellis Page 98 1 nobody worth a damn would be in the company, we would 2 lose our knowledge base. 3 Q. Anything else you remember that Brian 4 Barrett told you? 5 A. No. 6 Q. What is it you think Kent O'Hara would 7 know? 8 A. Well, Kent O'Hara, during the whole ROI 9 he was a director of parts and service. Prior to the 10 October meeting I was in a meeting down, I'm not sure 11 where we were, Tennessee or San Antonio -- matter of 12 fact, there's some correspondence, I believe there's 13 some correspondence saying "thanks very much for all 14 your support in your current position." So being as a 15 director, I mean, he would be involved in some of 16 those discussions -- 17 Q. Okay. 18 A. -- regarding a reorganization of the 19 field organization. All these individuals are part of 20 the senior management team so they would be involved. 21 Q. Go back to Exhibit D-3. 22 A. D-3. Yes. 23 Q. Kent O'Hara, looks like he signs the top 24 e-mail. Do you see that? 25 A. Yes. Page 99 1 Q. So Kent O'Hara at the time he sent this 2 e-mail is director of parts and service, sales and 3 marketing? 4 A. Correct. 5 Q. Is that a national job or regional job? 6 A. That's a national job. He reported to 7 John Spoon, the vice-president. 8 Q. So I take it O'Hara had gone into that 9 job from a position in the northeast? 10 A. No, no. John -- Kent O'Hara, he was an 11 outside hire from a number of years prior. I think he 12 worked at Ford and Honda and he came from a consulting 13 company prior to John Spoon -- prior to Alan Chiles, 14 who preceded John Spoon in that job. 15 Q. Have you ever discussed either age 16 discrimination or your red circle issue with Ken 17 O'Hara? 18 A. I have not. 19 Q. How about Martin Gleason? 20 A. Martin Gleason has discussed it with me 21 in that he discussed age discrimination within the 22 company. 23 Q. So Martin Gleason told you that he had 24 discussed age discrimination within the company? 25 A. He said from his point of view, to the Page 100 1 best of my recollection, there's a lot of concern 2 within the company as a result of age discrimination 3 regarding the ROI. 4 Q. Did he tell you who it was that was 5 concerned? 6 A. Well, his sister is an area manager on 7 the west coast at that time, so -- no, it was very 8 general. He didn't get into specifics. And I never 9 gave him any specifics about my personal situation. I 10 kept it pretty close to the vest. 11 Q. So as far as you know the only thing 12 Martin Gleason knows is that there were people in the 13 company concerned about age discrimination? 14 A. Yes. 15 Q. Next, Scott Becker. 16 A. Scott Becker was vice-president of 17 administration and finance and the HR function I 18 believe reported to him at that time. 19 Q. So you haven't actually talked to him? 20 A. No. 21 Q. Have you ever talked to him? 22 A. No. 23 Q. Dan Mohnke. 24 A. Mohnke. 25 MR. ELLIS: M-o-h-n-k-e. Page 101 1 A. Dan Mohnke. 2 Q. I was going to go for monkey. 3 What is it you think Mr. Mohnke knows? 4 A. Well, as vice-president of the company, 5 senior manager of the leadership team I'm assuming he 6 has detailed knowledge regarding the ROI. 7 Q. But you haven't talked to him? 8 A. I have not. 9 Q. Have you ever talked to him about 10 anything? 11 A. I have not. 12 Q. And do you have reason to believe that he 13 knows something about the red circle issue? 14 A. I do not. 15 Q. Greg Kelly. 16 I take it, by the way, that Nissan is 17 headquartered in Yokohama? 18 A. That is correct. 19 Q. It says -- well, what is it you think 20 Greg Kelly might know? 21 A. Well, his current title is executive 22 vice-president of human resources globally. He worked 23 in North America, Mark Stout worked for him in North 24 America. I don't think there's anything he doesn't 25 know in HR. And I have met him. 26 (Pages 98 - 101) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 81 of 86 PageID: 220 Peter W. McAvoy - by Mr. Ellis Page 102 1 Q. When is the last time you met him? 2 A. I had dinner with him at Sammy's in 3 Mendham, New Jersey back in -- I don't know, I'd be 4 guessing. Sometime in 2000. I don't know. 5 Q. When did he move to Japan, if you know? 6 A. I don't know. 7 Q. You're just assuming because he's the 8 head of HR globally that he'll know something about 9 the ROI, age discrimination and your red circling 10 situation? 11 A. Correct. 12 Q. How about Jeff Harris? 13 A. Well, Jeff Harris I know very well. He 14 used to work for, he still works in our regional 15 office. I see him almost every other day or whatever. 16 He's the RVP for Infinity, used to be the assistant 17 regional manager for Nissan when I was the regional 18 parts and service manager. So I know him very well. 19 Q. So is he a peer of Colleran? 20 A. Yes. 21 Q. So Colleran has Nissan? 22 A. Jeff has Infinity, correct. 23 Q. And what is it you think he knows 24 specifically about age discrimination? 25 A. Well, I believe some of his employees Page 103 1 were impacted during the ROI and I believe that he has 2 knowledge of what occurred and how they got there. 3 Q. Have you ever talked to him about age 4 discrimination within the Infinity organization? 5 A. No. 6 Q. Have you ever talked to him about the red 7 circling situation that you presented? 8 A. I have not. 9 Q. So what do you think he knows about the 10 red circling? 11 A. I think he's aware of it. 12 Q. Why do you think that? 13 A. Because we work in close quarters in the 14 northeast region and I believe he's aware of it. 15 Q. Okay. 16 A. He and Mr. Frigo worked together, they 17 are both RVP, one Infinity, one Nissan. When the ROI 18 was launched I'm sure he knew about my personal 19 situation in great detail. 20 Q. Do you think he made any decisions 21 affecting your personal situation? 22 A. No. 23 Q. Gary Frigo we've discussed. 24 Is it Jun Wattanabe? 25 A. Jun. Page 104 1 Q. I've been calling him John. It's not 2 J-o-h-n, it's J-u-n? 3 A. Jun Wattanabe, J-u-n, Japanese American. 4 Q. Now, have you ever discussed age 5 discrimination with Jun Wattanabe? 6 A. No. 7 Q. Have you ever discussed your red circling 8 situation with him? 9 A. No. 10 Q. And he's your boss right now, right? 11 A. No, Lofaro is my boss. 12 Q. Have you discussed -- going to Michael 13 Colleran, have you discussed with Mike Colleran the 14 red circle situation? 15 A. I have not. 16 Q. Have you talked to him about your belief 17 that you've been discriminated against on the basis of 18 your age? 19 A. I have not. 20 Q. You must see him all the time? 21 A. I do. 22 Q. How about John Manfra, have you discussed 23 any of these issues, age discrimination? 24 A. There was one conversation. 25 Q. Okay. When was that? Page 105 1 A. I can't recall. 2 Q. Was it before -- 3 A. Subsequent to the announcement in 2008. 4 Q. Why don't you describe that conversation. 5 A. I think it was in the parking lot, we 6 just bumped into one another and he made some comment 7 about what the company had done, and taking a pay cut, 8 and made some reference to age discrimination and that 9 was about it. 10 Q. He was, he had his pay cut also? 11 A. I believe so, yes. He mentioned it. I 12 didn't ask. It's not something you ask. 13 Q. Well, I'm sorry, I thought he had said 14 something to you about his pay. 15 A. He did, he offered it up. He offered it 16 up. 17 Q. So you believe based on that conversation 18 that he had his pay cut? 19 A. Yes. 20 Q. And do you know, I understand why your 21 pay was cut, do you have an understanding as to why 22 his was cut? 23 A. I do not. 24 Q. And that was the end of the conversation? 25 A. Very brief. 27 (Pages 102 - 105) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 82 of 86 PageID: 221 Peter W. McAvoy - by Mr. Ellis Page 106 1 Q. It says here that the information he had 2 would be about age discrimination and the ROI 3 desperately impacting older workers. 4 Did he say anything to you about the ROI 5 desperately impacting older workers? 6 A. He did, but I don't recall the specifics. 7 Q. Do you recall it in general? 8 A. Well, like I said, he said that the ROI 9 appears to be age discrimination and affected him. 10 Q. How old is he? 11 A. He's older than me. I'm 64, so he's 12 older than me I believe. 13 Q. How about Steven Silver? 14 A. Yes, I did talk to him. 15 Q. So what was that conversation, or I'm 16 sorry, when and where? 17 A. It was subsequent to the ROI. He was 18 with the Infinity division. He spoke about it. He, 19 basically, said it's blatant age discrimination. He 20 was tight with John Manfra. He might have also 21 mentioned to me about John Manfra taking a pay cut. 22 He has since retired, but he was very 23 vocal about it and he said, he probably in his 24 conversations, I don't want to speculate, probably 25 talked about class action or whatnot. Page 107 1 Q. Did he ever bring a class action? 2 A. He retired from Nissan. 3 Q. So he didn't bring a class action? 4 A. Not to the best of my knowledge. 5 Q. Is John Manfra still working? 6 A. I believe he's still working for 7 Infinity. 8 Q. Is he a long-term employee? 9 A. Not as long as me, but I'm going to say 10 at least 15 years. 11 Q. Okay. 12 A. He was with another manufacturer, I think 13 Dodge, prior to joining Infinity. 14 Q. Other than offering his opinion that it 15 was blatant age discrimination did Silver describe any 16 information he had that was sort of factual? 17 A. He knew of other individuals within the 18 company that were affected by the ROI. 19 Q. Anything else? 20 A. No. 21 Q. Is that a "no"? 22 A. Yeah, no. I'm sorry. 23 Q. Julius Monge? 24 A. Monge. 25 Q. Monge, okay. This was someone you know? Page 108 1 A. Yes, it is. 2 Q. What is it that he, what information does 3 he have about age discrimination? 4 A. He works on the west region so he's aware 5 of what occurred to him and some of his peers in the 6 west. 7 Q. So he's another person who had his salary 8 cut as a result of the ROI? 9 A. Yes. 10 Q. Has he told you that anybody at the 11 company told him that this was being done because of 12 the age of the people affected? 13 A. He did not. 14 Q. Did he give you any information other 15 than what had occurred in his personal situation? 16 A. Can you repeat that? 17 Q. Did he give you any factual information 18 other than the fact that he had had his pay cut? 19 A. No, he did not. 20 Q. But he told you about other people out 21 west that had been cut? 22 A. He has since, yes. 23 Q. How many conversations did you have with 24 Mr. Monge? 25 A. I've had one. Page 109 1 Q. When was that? 2 A. Within the last 30 days. 3 Q. Does he still work for the company? 4 A. He does. 5 Q. Now, Matt Dowd, is he in the same 6 situation as Monge? 7 A. Yes, he has had his pay cut I believe. 8 Q. And have you talked to him about that? 9 A. I have not. I know Matt because he used 10 to work in the northeast region. 11 Q. I skipped over Thomas Lageran. Is he 12 another person who had his pay cut? 13 A. Yes. 14 Q. And did you discuss that with him? 15 A. I have not. 16 Q. John Payne, another person who had his 17 pay cut? 18 A. Yes. 19 Q. Did you discuss that with him? 20 A. Yes. 21 Q. And what did he tell you? 22 A. That he had his pay cut and that he 23 thought it was blatant age discrimination. 24 Q. Anything more than that? 25 A. Not to my best of my recollection. 28 (Pages 106 - 109) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 83 of 86 PageID: 222 Peter W. McAvoy - by Mr. Ellis Page 110 1 Q. Did he tell you why he thought it was age 2 discrimination? 3 MS. NIEDWESKE: I'm sorry, what did you 4 say? 5 Q. Did he tell you why he thought it was age 6 discrimination? 7 A. Because everybody that was impacted was 8 over 50 years old and everybody that, you know, 9 received new positions, or whatever, were in their 10 either thirties or early thirties. Everybody 11 negatively impacted by the ROI was in their fifties 12 and sixties. 13 Q. Anything else? 14 A. No, that's it. 15 Q. Brian Witt? 16 A. Yes. 17 Q. Is he another person who had his pay cut? 18 A. He wasn't even offered a job during the 19 ROI. 20 Q. So he was just laid off? 21 A. Yes. 22 Q. Job eliminated? 23 A. No, he had my job. He was associated 24 business manager at that time and they didn't offer 25 him a position, but they did offer him a severance and Page 111 1 instead of fighting it he just took the money and 2 left. He was like a 25, 30-year employee. 3 Q. So did you have a conversation with him? 4 A. I did. 5 Q. I think -- 6 A. He kept calling me. 7 Q. How many times did you talk to him about 8 age discrimination? 9 A. At least a half dozen times. He had a 10 certain amount of time before he could accept and he 11 didn't know what he was going to do. 12 Q. So was he on the same time schedule as 13 you? 14 A. I was offered a job, he wasn't. 15 Q. Okay. 16 A. That's the difference. 17 Q. Did he tell you whether the company had 18 given him an explanation for why he was not being 19 offered a job? 20 A. I don't recall. 21 Q. How old is Witt? 22 A. I'm going to say, I mean, a guesstimate, 23 he's in his late fifties or maybe sixties this point. 24 Q. Have you ever met him face to face? 25 A. Brian Witt? Page 112 1 Q. Yes. 2 A. I've known him since the '80s. He used 3 to work in the northeast for the Infinity division. 4 Q. We talked about Tim Gilbert. 5 A. Yes. 6 Q. What is it Brian Barrett would know or 7 could know? 8 A. Well, Brian Barrett works in the region 9 as a regional financial services manager, has been 10 with the company I guess going on 25 years and he was 11 cognizant of the actions that the company took and who 12 was severely impacted by it. 13 Q. Was he impacted? 14 A. He was not. 15 Q. So what is he going to know about age 16 discrimination? 17 A. He's going to know which individuals were 18 impacted by the ROI, and they all, those severely 19 impacted were over 50 years old. 20 Q. Okay. 21 A. He also lives in my neighborhood. 22 Q. Okay. 23 A. And I talk to him every day. 24 Q. Has he told you that anybody above him in 25 the company has told him that the ROI was set up for Page 113 1 the purpose of eliminating older workers? 2 A. He did not. 3 Q. Did he tell you anything that led you to 4 believe that the ROI was set up for the purpose of 5 eliminating older workers? 6 A. His impression it was, he told me that. 7 Q. And did he tell you what his impression 8 was based on? 9 A. Based on the facts. 10 Q. Which facts? 11 A. The fact that everybody that was severely 12 impacted was over 50 years of age. 13 Q. Okay. 14 A. And that a bunch of junior managers 15 walked into positions that they frankly weren't 16 qualified for based on the company's own job 17 descriptions. 18 Q. Anything else? 19 A. No. 20 Q. And Scott Cairo, he's another person who 21 was affected by the pay reductions? 22 A. He was. He spoke to me at the New York 23 Auto Show which occurs usually this time of year, and 24 it was subsequent to the announcement of the ROI, and 25 we were at lunch in the city after attending the auto 29 (Pages 110 - 113) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 84 of 86 PageID: 223 Peter W. McAvoy - by Mr. Ellis Page 114 1 show and he was livid. And Scott used to work for me 2 and I had hired him. I was surprised. I didn't know 3 where he was in his pay grade or whatever, but he was 4 livid and told me he received a pay cut and called it 5 age discrimination. And he did in his ROI meeting, 6 because I guess he got vocal and it was, I think it 7 was an ugly, he had a confrontation with Frigo, 8 Wattanabe and Ballard within Frigo's office. 9 Q. What did he tell you happened? 10 A. He said he said it was bull shit, he told 11 me he said he thought it was age discrimination and 12 that he couldn't believe, something to that effect, 13 and he couldn't believe they were doing this and he 14 just went into, he told me he went into a tirade with 15 them. 16 Q. Did he tell you the response he got from 17 the tirade? 18 A. I don't recall at this point. I was 19 surprised. I mean, here we are in a restaurant with 20 half a dozen others and he makes a point of leaning 21 over to me and talking about it. And I did not 22 indicate about my pay cut, I was reticent. I took my 23 own actions. 24 Q. Have you sought medical treatment for any 25 of the events that have occurred to you at Nissan? Page 115 1 A. No. 2 Q. In interrogatory responses you 3 identified -- 4 MS. NIEDWESKE: Which number? 5 Q. Number nine, page 11. 6 -- a Dr. Ronald Ciuffreda? 7 A. He's just my doctor. 8 Q. That's your -- 9 A. Go for physical, get my PSA checked. 10 Well, I mean, I had cancer, I had the surgery at Johns 11 Hopkins in 2006, so I have to get my PSA checked every 12 year. 13 Q. Okay. 14 A. So far so good. 15 MR. ELLIS: Off the record. 16 (Off-the-record discussion.) 17 (A break was taken.) 18 BY MR. ELLIS: 19 Q. Just a couple last questions. 20 As a result of the ROI have your, 21 anything in your benefits package changed? 22 A. In my benefits package relative to the 23 ROI, no, I did -- no. 24 Q. You're in a defined benefit plan that was 25 shut down some years ago, right? Page 116 1 A. I believe it was frozen December 2012. 2 Q. So you're still in that, right? 3 A. Oh, yeah. 4 Q. But there is no additional contributions 5 being made? 6 A. That is correct. That is correct. 7 Q. Then you are in a 401K? 8 A. I am. 9 Q. Is there any other retirement plan that 10 you are a part of, deferred comp are anything like 11 that? 12 A. Within Nissan? 13 Q. Yes. 14 A. No. 15 Q. So none of that has changed as a result 16 of the ROI? 17 A. Correct. 18 Q. And none of your other medical or dental 19 or any of those benefits are affected by the ROI? 20 A. That is correct. 21 Q. When do you plan on retiring? 22 A. Don't know. I haven't determined. I'm 23 in good health. My wife manages a real estate office, 24 she wants to continue working. I don't know. I'm in 25 good health. My kids are out of college, just paid Page 117 1 off two student loans. I've got one more to go, but. 2 Q. How many kids do you have? 3 A. Four. Two are attorneys. 4 MR. ELLIS: I don't have any further 5 questions. Thanks. 6 Off the record. 7 (Deposition concluded at 1:20 p.m.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 (Pages 114 - 117) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 85 of 86 PageID: 224 Page 118 1 CERTIFICATE 2 3 I, BARBARA WESTOVER, a Notary Public and 4 Certified Shorthand Reporter of the State of New 5 Jersey, License No. 30X100136200, do hereby certify 6 that prior to the commencement of the examination, 7 PETER W. MCAVOY was duly sworn by me to testify to 8 the truth, the whole truth and nothing but the 9 truth. 10 I DO FURTHER CERTIFY that the foregoing is a 11 true and accurate transcript of the testimony as 12 taken stenographically by and before me at the time, 13 place and on the date hereinbefore set forth. 14 I DO FURTHER CERTIFY that I am neither a 15 relative nor employee nor attorney nor counsel of 16 any of the parties to this action, and that I am 17 neither a relative nor employee of such attorney or 18 counsel, and that I am not financially interested in 19 the action. 20 21 22 ______________________________________ 23 Notary Public of the State of New Jersey 24 My Commission expires July 30, 2016 25 Dated: March 20, 2016 31 (Page 118) Veritext Legal Solutions 800-227-8440 973-410-4040 Case 3:15-cv-06824-MLC-DEA Document 30-1 Filed 04/21/17 Page 86 of 86 PageID: 225 EXHIBITD Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 1 of 73 PageID: 226 McAvoy, Pete From: GObert, Timothy Sent: To: Monday, October 17, 201112:27 PM McAvoy, Pete Subject: FW: Pete McAvoy Please see below From: Ballard, Edith sent: Monday, October 17, 201111:38 AM To: Ballard, Edith; Gilbert, Timothy Subject: RE: Pete McAvoy Yes, feel free to give Pete this email. Thanks, Edith Edith Ballard Nissan North America, Inc Business Partner Human Resources Department edith.baflard@nmmpjmn·U§a.eom Phone: +1615.725.5987 Fax: +1615.725.8545 From: Ballard, Edith sent: Monday, October 17, 2011 9:59AM To: Gilbert, Timothy subject: Pete McAvoy Tim, 1 have confirmed with Compensations that Pete's move to the AI- Associated Business Manager position will be considered a rotation and he will be red circled, therefore there will be no pay adjustment as result of this rotation. Thanks, 1 POOl Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 2 of 73 PageID: 227 EXHIBITE Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 3 of 73 PageID: 228 .... · McAvoy, Pete From: Sent: To: Subject: Pete, O'Hara, Kent Monday, October 17, 2011 9:66 PM McAvoy, Pete FW: ....... Northeast Region Organlzetional Announcement- Thanks for the service and the support these past three years that I have been here. Best of luck and much success In your new assignment Kent O'Hara Nlssan North AmerJca, Inc. Dlrecblr, Parts &. Service Sales and Marketing Northeast Region Organizational Announcement I am pleased 1D announce the following rotations and promotions on behalf of Gary Frigo: Richard Ring - DOM district 09 N New Jersey will rotate to DOM district 04 Central New Jersey backfilling Craig Keeys. Craig Keeys - DOM district 04 will rotate 1D DOM district 02 Long Island backfilling the open position. Tammy Pennella - Distribution Spedallst will be promoted to FOM district 07 Buffalo/Rochester/Syracuse backfilling Chris Danlk. Chris Danik- FOM district 07 will rotate to district 04 FOM Central New Jersey replacing David Von Bing. David Von Bing- FOM district 04 Central New Jersey will rotate to FOM district 08 outer Philadelphia backfilling Joe Montague. Joe Montague - FOM district DB Outer Philadelphia will rotate 1D FOM district 09 N New Jersey backfilling Steve Sliver. Steve Sliver - FOM district 09 N New Jersey will rotate to district 02 FOM Long Island replacing Keith Harmls. Keith Harmls- FOM district 02 Long Island will rotate to soc for Northeast region. Stacy Crane- FOM district 1l to rotate to district 03 FOM NYC replacing Mike Falzarano.· Mike Falzarano - FOM district 03 New York City will rotate to DOM district 18 Central PA backfllllng Will Ventresca. · Will Ventresca - DOM district 18 Central PA will rotate to Loyalty Performance Manager for 8os1Dn backfilling the open position. Arcangelo Lofaro- FOM district OS SE New Jersey will be promoted to Parts & Service Manager backfilling Pete McAvoy. Pete McAvoy- Parts & Service Manager will rotate 1D Associated Business Manager backfilling Crlstln Adinolfi. l POll Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 4 of 73 PageID: 229 crlstln Adinolfi -Associated Business Manager will rotate to Regional customer Satisfaction Manager backfilling Rhonda Calico. Rhonda Calico- Owner Relations Manager will rotate to FOS replacing Evan Fulton. Evan Fulton - FOS wlll rotate to Dlst Specialist replacing Tammy Pannella. Dennis Mead - DOM district 05 will rotate to DOM district 08 outer Philadelphia backfilling Pete Orbe. Peter orbe - DOM district 08 Outer Philadelphia will rotate to DOM district 09 N New Jersey backfilling Richard Ring. The FOM opening In district 05 will be filled and announced at later date. Please join me In congratulating all mentioned team members In their new positions. Tim Gilbert Regional Genom! Manager Northeast Region Nissan North America, Inc. PH (732) 805-3140 FX (615) 967-3125 tlmothv.etlbert@!nlssan·usa.com 2 POJ3 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 5 of 73 PageID: 230 EXHIBITF Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 6 of 73 PageID: 231 NISSAN NISSAN NORTH AMERICA, IN Memo Date: April 8, 201· To: All Nlssan Regional Employees & Contractors From: Fred Dlaz, SVP, Sales and Marketing, Nissan U.S.A. Subject: Regional Optimization Initiative In an effort to provide more autonomy and empowerment to the U.S. sales regions, we will implement a Regional Optimization Initiative (ROI), effective July 1, 2014. The ROI I~ a direct result of an Acceleration workstream project announced by Jose Munoz earlier this year. This action will increase the number of job~ in the Nlssan field structure. The ROI restructures the U.S. regions and districts to provide a balanced number of dealers for each Nlssan regional office. Through this Initiative, the Nlssan regional offices will have 93 districts rather than the 78 that currently exists. Additionally, the regional offices will be enhanced to operate with a more focused profit structure. ROI will enable the Nissan sales team to provide enhanced attention and support to our dealers. Improving our dealer support will enable us to accomplish our P88 objectives of increasing market share, profit and customer experience, more quickly. We're looking forward to this growth opportunity and thank you In advance for your support of this important initiative. 1 P000057 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 7 of 73 PageID: 232 EXHIBITG Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 8 of 73 PageID: 233 NISSAN NISSAN AMERICAS Date: April 8, 2014 To: Peter w. McAvoy From: Tracy Jones, Director Total Rewards Subject: Salary Adjustment Nissan is adjusting salaries for those employees whose annual base salary Is above the maximum pay for their position. Your currently assigned job title, Associated Business Manager, Is being reclassified to the AH level. Since this assignment is considered a rotational assignment and you may return to the AI job level, a current review of your pay will be based upon the higher AI salary grade level. If you remain in this job and the AH grade level for more than 2. years beginning July 1, 2.014, the Company may reduce your pay to bring your salary to the range maximum of the AH level. The projected FY14 annual salary range maximum for the AI grade Is $143,069. Your current annual salary Is $192,005. As a result, you will be placed on a salary reduction plan to bring your aimual base salary to the AI salary range maximum. Specifically, the schedule will be implemented In the following steps: April 1, 2014: January 1, 2015: January 1, 2016: No Change Reduction of 33% of the amount over the salary grade maximum Reduction amount: $16,312 New salary: $175,693 2n• Reduction Reduction amount: $16,312 New salary: $159,381 September 1, 2016: Reduction to the FY16 salary grade maximum The foregoing assumes you remain in this position and/or salary grade through the dates specified. Any Intervening adjustments to the maximum of your salary grade would affect the final salary adjustments to be made. Please feel free to contact me or your HR Representative if you have any questions. P000058 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 9 of 73 PageID: 234 EXHIBITH Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 10 of 73 PageID: 235 Apr. 2\. 20\4 2:55PM NISSAN April !!,2014 DnrPet.McA~ No. 0343 P. l Nl$SAN NORTH AMWCA, INC, Corporate Ql!lce QnoffioWnWay l'nlnldln, TN 3l'OG1' Telophone: 61S.n5.2100 M a result of the Regional Optlmlutlon lnltiJ!Ive (ROI) etli!ttlvl! My l., 2014, we offer you the posltllln ofRe;lonal Associated sustnw Monager, We foellhat your sldlls and badcafo\lnd Wlll be valuable ISSeiS to our rqlonal rrowt/l. Tha terms and tondltlons below ouUine your ntw po.sltlon w!lh the Company, Position: RIJ!Ionel Assocloted Business Manqor salary Grode: AH Dlstrlc:s /- Name(lf •Pl>H .. ble): liA BoiiQS'Illl'l6t Qwrterly (If app11<1ble): NA Amluol 8110 5aJary: AnnUal base salary will be IVIIIabie In Suc:c:ess Fac:tor> prtor to July 2014. If you choose to atceptth1$offer, plea5,retum a sl&ned copy via e.mallta Stnr Perry, llR suolness Partner, ut $J:t.PMN!!!nl!! ReeJonal Vloo President• Nlsnn Northea$1 Date 6mp1oyee Sipmurt D-000204 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 11 of 73 PageID: 236 EXHIBIT I Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 12 of 73 PageID: 237 Regional Optimization Initiative (ROI) Questions and Answers for Employees 1. What is ROI? The Company is restructuring the regions and districts so that the number of dealers supported from each Nlssan Regional Office will be similar. The Company is also adjusting some districts to create new districts. Through this initiative, the Nlssan Regional Offices will have 93 districts rather than the 78 that exist currently. The results of this action will improve dealer contact ratio to an average of 1:12. The Company Is also restructuring certain jobs In the Regional Offices, as discussed In Question 2, below. The Company believes through the ROI program that the Nlssan sales operations team can provide better service and support to our Nissan dealers. Improving our dealer support should help the Company accomplish faster our objectives In Nissan's PSB Business Plan. 2. How will ROI impact my job? For many employees In the Nissan Regional Offices, their job assignment will remain unchanged. other employees will be more directly impacted by ROI In one of several ways: • Job is changing. A number of jobs will be restructured or consolidated with other jobs. If your job Is restructured or consolidated, you may be assigned to a new position or asked to post for open positions In your current location and other locations. Additionally, in some cases, employees who remain In their current positions rpay assume different responsibilities. • Employee moved to a new market. For example, employees who are In the DOM and FOM jobs may be asked to move to a new market. • Employee asked to relocate. For example, employees who are in the DOM and FOM jobs may be asked to relocate to their Districts/Areas if they don't currently reside within them. • Job is relocating. The Distribution Specialist jobs will be moving from the Regional Offices to HQ. Employees who are currently in those positions will have the opportunity to relocate to HQ or post for open positions In their current location or another location. • Job eliminated. Certain Regional positions have been eliminated. If you are impacted, you may be assigned to a new job or asked to post for open positions in your current location and other locations. April 8, 2014 Nlssan Strictly Conffdentlal P000060 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 13 of 73 PageID: 238 3. When will I find out how ROI impacts me? Your management and HR will meet with you Individually over the next several days to discuss how ROI will Impact your job, and advise you regarding your options. 4. When will the new regional structure start? The new regional structure wilf begin around July 1, 2014. We expect that employees will be In their new assignments by that date. 5. Will there be any layoffs as a result of ROI? Unlike the CORE Initiative in 2009, ROI will Increase the number of jobs in the Nissan Regions. Employees who are not assigned a new position will be offered an opportunity to post for jobs in their location and elsewhere. We will attempt to place impacted employees in available positions for which they are qualified. If an appropriate position cannot be found for the employee, the employee may be laid off with separation benefits under the ROI Separation Plan ("RSP"). ROI Impact on Jobs 6. Is there any impact on me if my job title and location is unchanged? If your job is not directly Impacted by the Initiative, you may remain In your current job. However, your responsibilities and/or your market may be changing. 7. What if I am offered a new position or current position in a new location, how long will I have to decide whether to accept it? You must decide by returning your offer letter no later than April 23, 2014. If you accept your new position, you may not post for an open position for one year after you begin your new assignment. B. Will the Company offer all employees a job assignment? No. A small number of employees will not receive an assignment. Rather, they will be asked to post for open positions. There are more open positions than employees nationally. 9. Why aren't all employees being offered job assignments? The ROI program Is changing the regional structure and its functions. The Company would like to provide an opportunity to those not selected for assignments the option to post for multiple positions. This will also permit the Company to select from a broader set of candidates for unfilled jobs. April a, 2014 2 NJssan Strictly Confidential P000061 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 14 of 73 PageID: 239 10. What are my options if I turn down my assigned position? You have until April 23, 2014 to accept the new position/new location assigned to you. If you choose not to accept your new assignment, you will have the opportunity to post for jobs in your location and elsewhere. However, if you turn down a job assignment and you can't find another position by June 30, 2014, your employment will end and you vV/fl not be eligible for separation benefits under the ROI Separation Plan. 11. Why is the Company not offering severance to those employees who receive job offers? Unlike other reorganization programs at Nissan, the ROI program Is intended to be a growth program, with new jobs added to the Regional Offices. Our goal Is to retain as many employees as possible to help with our growth. 12. If I turn down a job assignment and don't get another position, can I then go back and accept the job assignment? No. After you turn down a job assignment, the Company will post it or place another employee in the position. It Is likely by June 30, 2014 that the position will be filled with another employee. However, If the position is not filled, you will then need to post for the position. Posting for Jobs 13. What level jobs will the Company post and what jobs will the Company not post? The Company will assign employees to some newly created positions. For positions that are unfllled following the ROI Announcement Date at the AG, AH, and AI levels, the Company will post them internally on the Internal Talent Gateway and externally. For positions that are unfilled at the AL (Senior Manager) level following the ROI Announcement Date, the Company will post most of· them internally on the Internal Talent Gateway and externally. 14. When will the Company post jobs internally and externally? We anticipate that we will post jobs, beginning on April 9, 2014. 15. Is the Company considering external candidates for the open positions? Yes. For many of the open positions, the Company will consider external candidates at the same time that it considers Internal candidates. In all cases, the Company will select the most qualified candidate for the open positions. April 81 2014 3 Nissan Strictly Confidential P000062 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 15 of 73 PageID: 240 16. Can I post for other jobs within the Company, outside of Sales Operations? Yes. Job Relocating 17. If I am a DOM or FOM and remain in this role, will the Company require me to live in my district/area? Yes. 18. If my job is moved to a new location, will I be required to relocate? Yes. 19. If my job is moved and I agree to relocate, will I be eligible for relocation benefits? Yes. Please review the Relocation Polley summary, which will be provided in an information package following your one on one meeting. 20. If I will not relocate and there is no other job available in my current location, will my Nissan employment end? Yes. If you don't obtain a new job In your current location, your Nissan employment will end and you will not be eligible for RSP (severance) benefits because we have offered you a position. Jobs Restructured 21. I have not been assigned a new position, but asked to post for open jobs. How will the Company select who Is offered the new jobs? The Company will select the employees who are best qualified for the new jobs, based on demonstrated competencies, job performance, and experience. 22. I have not been assigned a new position, but have been asked to post for open positions. Will my Nissan employment end if I am not selected for an open position or have not found another position within Nissan? Yes. If you have not been selected for a position by June 30, 2014, your Nlssan employment will end and you will be eligible for RSP (severance) benefits. 23. If I don't obtain a position in the posting process, when is my last day of employment? In most cases, your separation date will be June 30, 2014 ("Separation Date"), If your Separation Date is later than June 30, 2014, you will be notified by your manager. April 8, 2014 4 Nlssan Strictly Confidential P000063 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 16 of 73 PageID: 241 Job Offer Process 24. Who Is required to return an Election Form or Letter? Employees who will remain in their current assignment at their current location will receive an offer letter that must be returned by April 23, 2014. Employees without an assignment (those who will be asked to post) will not submit an election form but will receive a letter explaining options. Employees who receive a new assignment must return their offer letter by April 23, "2014. Employees asked to relocate must return their offer letter by April 23, 2014: Distributions Specialists must submit an election form, no later than April 30, 2014 to: (a) Relocate to NNA HQ as a distribution specialist; or (b) Post for a new position at Nlssan/Infiniti; or {c) Separate voluntarily with severance benefits under the RSP {RSP Volunteer). 25. How do I submit my Election Form/Offer? The completed Election Form or offer letter may be submitted to Human Resources by e-mail to Starr Perry at Starr.Perrv@nlssan-usa.com or Edith Ballard at Edith.Ballard@nissan-usa.com. You will receive a confirmation of receipt from Human Resources within 24 hours of submitting your election. 26. What if I become a RSP Volunteer but later learn of an opportunity that has become available and I would like to be considered for that position? You may revoke your RSP election through the April 30, 2014 deadline. After that point, you may no longer change your election. 27. How will I find out whether I obtained another job? Your management will meet with you in person to inform you. 28. After my Nissan employment ends, will I have an opportunity to continue to apply for open positions at Nissan? Yes. Employees who leave Nlssan employment may apply for open positions for which they are qualified through www.nlssan.jobs. If rehired within one (1) year of the date of layoff, you will retain your original hire date for purposes of calculating vacation, and other benefits associated with length of service. If you are already vested in the retirement plans, that will remain unchanged If Nissan rehires you. Rehired employees will become partidpants In the CAR annual contribution plan, which Is part of the Nlssan Employee 401(k) Plan at April 8, 2014 5 Nlssan Strictly Confidential P000064 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 17 of 73 PageID: 242 the level you had at the time of your termination, provided that you are rehired within five years of your departure. If you have not vested In the CAR contribution under the Nissan Employee 401(k) plan, you may carry over your vesting service if you rejoin Nlssan within five (5) years of your departure. Benefits including vacation, holidays, sick/personal hours, or group insurance are not earned or accrued during layoff status. Relocation Benefits 29. What are the benefits I will receive if I elect to relocate? Nlssan covers much of the cost associated with your relocation pursuant to its Exempt Homeowner and Exempt Renter relocation policies (Policies H-414b(2) and H-414a(s) respectively). A summary of the relocation benefits for homeowners and renters will be contained In your information. 30. Can I defer my relocation and work virtually for a period of time? No. Nlssan's Virtual Office l;'olicy (Polley F-952) Is not intended as a substitute for relocation to the employee's new work location. If there are personal or family circumstances that may limit your ability to move Immediately, you should discuss them with your manager and Human Resources to determine If a short term accommodation can be provided. Separation Plan 31. Who is eligible for severance pay and other benefits under the RSP? The following employees are eligible ("Eligible Employee") for severance pay and other benefits under the RSP: • Distribution specialists who will volunteer for the RSP benefits. • Distribution specialists who choose to not to relocate to HQ and don't obtain another job at Nissan. • Employees who are not assigned a job on the Announcement Date, who are asked to post for other positions, and who don't obtain another position at Nissan prior to June 30, 2014. April B, 2014 6 Nissan Strictly Confidential P000065 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 18 of 73 PageID: 243 32. Who is not eligible for severance pay and other benefits under the RSP? • Employees whose job titles are unchanged. • Employees whose jobs assignments are not relocating. • Employees who accept new employment with Nissan. • Employees who are offered a position at Nissan either at their current location or a new location and tum down the position. 33. Does my eligibility for retirement benefits impact my eligibility for severance benefits? No. Your eligibility for retirement benefits has no impact on your eligibility for severance benefits .. Your eligibility for severance benefits Is contingent on whether you have been offered a Nissan position either at your current location or new location. However, distribution specialists, whose positions are being relocated to HQ, will be eligible for severance benefits should they choose to leave Nissan employment. Severance Pav 34. What are the benefits under the Separation Plan ("RSP") if I am an Eligible Employee? • Severance pay. Severance pay is based on length of service. All employees will be eligible for a minimum of eight weeks (8) weeks' severance pay. Employees will be eligible for one (1) additional week of severance pay for each additional full or partial year of service beyond five years. There Is no cap on severance pay. • To calculate your severance, you may be use the formula of four weeks for the first year of Nissan service and one week of each additional full or partial year of service. However, an eligible employee will get no less than 8 weeks' severance pay, regardless of length of service. o Examples: • An employee with three years one month of Nissan service would get eight weeks of severance pay. An employee with eight years and two months of Nissan severance would get 12 weeks of severance pay. • An employee with 15 years and two weeks of Nlssan service would get 19 weeks of severance pay. • COBRA allowance to pay for Company-paid health benefits. Continuation of Company-paid health benefits. Your Company's group health coverage will end at the end of the month In which your Separation Date falls. Following the end of your group health coverage, you may continue h.ealth coverage. at your own expense through COBRA for up to 18 months. The Company will pay you a COBRA allowance equal to the difference In your premium cost based on your 2014 elections and the cost of COBRA For six months' coverage. This COBRA allowance will be considered taxable Income April 8, 2014 7 Nissan Strictly Confidential P000066 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 19 of 73 PageID: 244 to you. You may use this COBRA allowance to pay for COBRA coverage or for any other purpose. You must enroll In COBRA to receive such coverage and your eligibility for COBRA coverage ends if you become eligible for your new employer's health coverage. • Employees who are currently eligible to receive retiree health benefits under the Nlssan VEBA Welfare Plan ("Retirees") will be eligible for continued health coverage under that Plan. They will not be eligible for the COBRA allowance. • Vehicle discount. Employees other than Retirees will be eligible for a $5,000 vehicle purchase discount off of the purchase of a new Nlssan or Infiniti vehicle. Retirees are eligible under Nlssan Vehicle Lease Car plan to lease up to four ( 4) vehicles following the end of their active Nlssan employment In Tennessee and unlimited elsewhere and are thus not eligible for any vehicle discount. • Outplacement services. R5P participants will be eligible for outplacement services, upon request. You will receive additional information on the services provided by Right Management, Inc., our outplacement provider. You must sign up for outplacement benefits no later than September 30, 2014. • Educational assistance. Employees enrolled in classes under NNA's Education Assistance Policy on the effective date of separation will be reimbursed according to the Policy upon completion of their enrolled course(s). 35. Is severance pay subject to regular taxes? Yes. It is similar to regular pay. However, consistent with federal tax regulation, your Income tax will be withheld at a supplemental rate of 25%. Additionally, Social Security taxes of 6.2% and Medicare taxes of 1.45% will be withheld. 36. What pay is included when you calculate a week's pay for purposes of severance? Your weekly pay includes base pay only, but excludes vehicle allowances, Geo differential pay, Success Sharing or other bonuses, or overtime. 37. How will I be paid my severance pay? You will be paid in a live check. Direct deposit Is not an option. 38. Will money that I owe the Company be deducted from my severance check? Yes. April 8, 2014 8 Nfssan Strictly Confidential P000067 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 20 of 73 PageID: 245 39. If I choose to separate from the Company, how long am I required to stay to receive the severance pay? You must remain employed until your Separation Date. If you leave the Company prior to your Separation Date, you will not be eligible for RSP benefits. 40. When will be severance pay be paid? Severance will be paid on your Separation Date, if you sign the required release at least 7 days prior to that date. 41. Will 40l(k) contributions be deducted from my severance pay? No. Under IR5 regulations, 401(k) contributions cannot be deducted from the severance pay. Moreover, you can't direct your severance check into your 401 (k) plan to avoid taxes on it. 42. Will I be required to sign a Separation Agreement and Release as a condition of receiving severance benefits? Yes. With your information package, we will give you a draft of the Separation Agreement and Release. At some later point, the Company will give you your actual Separation Agreement and Release. From that time, you will have up to 45 calendar days to consider the terms of the release and seven calendar days following your signature to revoke it. You may sign the Separation Agreement and Release at any time during the 45-day period. If you sign your Separation Agreement and Release more than seven days prior to your separation, you will receive your severance payment on your Separation Date. Otherwise, the Company will send you your severance check following the seventh calendar day after you have signed the Separation Agreement. 43. Is the Separation Agreement and. Release voluntary? What happens if I don't sign it? Yes. Your decision whether to sign the Separation Agreement and Release is entirely voluntary. You will be given ample time to consider the agreement and review It with your spouse, partner, attorney or other advisors. However, if you don't sign the Separation Agreement and Release. you will not receive separation benefits under the Sepa@tion Plan. The release of claims against the Company does not include a waiver of your right to receive workers' compensation benefits, COBRA benefits, or benefits under Nissan's employee benefit plans. A sample copy of the Separation Agreement and Release will be contained in your information package. April 8, 2014 9 Nlssan Strictly confidential P000068 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 21 of 73 PageID: 246 COBRA Allowance 44. Do I have to enroll in COBRA to receive the COBRA allowance under the Severance Plan? No. You can use your COBRA allowance to purchase COBRA or for any other purpose. Your individual payment wfll be based on the elections that you have in place as of January 1, 2014. Retirees are not eligible for the COBRA allowance. 45. How do I enroll in COBRA? Payflex, Nlssan's COBRA administrator, will send you a COBRA package within three weeks after your benefits end. You will have up to 60 days to enroll In COBRA. 46. What health plan would I be covered in under COBRA? You would be covered by the elections that you made In open enrollment that were effective on January 1, 2014. 47. I am not currently enrolled in the Company's health plan. Would I be eligible for COBRA or the COBRA allowance? No. You would not be eligible for COBRA or the COBRA allowance If you are not a participant in the Company's health care plan on or after January 1, 2014. 4B. When will I receive my COBRA allowance? You will receive your COBRA allowance at the same time that you receive your severance pay. 49. Is the COBRA allowance subject to taxes? Yes. Taxes will be withheld at the supplemental rate. Retirement Plans 50. When am I eligible to collect my pension, 40lk and CAR benefit? If you have ten or more years of service at separation, you can begin your pension at age 55. In addition, you may begin your 401(k) and CAR benefit without tax penalty, if you turn 55 in the year that you leave Nlssan employment and don't begin new employment, regardless of your service. 51. What effect will leaving Nissan have on my 40l(k) plan assets? You are fully vested in the Company match program under the 401(k) plan If you have one year of credited service under the plan. If your vested contributions under the plan equal $1,000 or less, your account wfll be paid out to you in a lump sum. April 8, 2014 10 Nissan Strictly Confidential P000069 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 22 of 73 PageID: 247 • If you have more than $1,000 of vested money In the plan, you may: • Leave your money in the plan until age 70 1/2; • Roll It over directly to another employer's qualified plan or into a rollover Individual Retirement Account (IRA), or • Take a distribution of the money. The distribution will be subject to ordinary federal income tax withheld at a 20% rate. A 10% tax penalty will also apply if you are under 55 years of age In the year that you retire. The 10% tax penalty will not apply if you are 55 years of age or older in the year when you leave employment and retire, regardless of your Company service. • Employees that leave employment before the year they turn age 55, cannot access their 40l(k) without tax penalty until age 59.5. 52. What impact will leaving Nissan have on my pension benefits? • Your accrued benefit is vested In Nissan's Employee Retirement Plan ("pension") if you have five years of service under the plan. • Employees hired on or after Jan. 1, 2006 are not eligible to participate in the pension plan. The pension plan was frozen for all participants on December 31, 2012. o If you are not vested at termination, you will not receive any benefit under the pension plan. o If you are vested, you are entitled to your accrued benefit as follows: o If you are over 55 with at least 10 years of service, you may elect to receive your benefit immediately following your Separation Date. o If you are under 55 with at least 10 years of service, you may elect to receive your benefit when you reach age 55. o If you have five but less than 10 years of service, you may elect to receive your benefit no earlier than age 65. o An accrued benefit having a lump sum value of $1,000 or less will be paid in a lump sum following termination of your employment. An optional cash out Is available for values between $1,000 and $10,000. 53. Wbat effect will leaving Nissan have on the Company Annual Retirement ("CAR") contribution to the 40l(k) plan? The CAR contribution applies to employees hired on or after Jan. 1, 2006 and to those employees who participated In the Pension Plan, which was frozen as of December 31, 2012. You are fully vested In the CAR. contribution If you have three years of credited service under the plan. (All fonmer pension plan participants are vested In their CAR contribution.) If your vested contributions under the plan equal $1,000 or less, your account will be paid out to you In a lump sum. • If you have more than $1,000 of vested money In the plan, you may: o Leave your money in the plan until age 70 1/2; o Roll It over directly to another employer's qualified plan or into a rollover April B, 2014 Jl Nlssan Strictly Confidential P000070 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 23 of 73 PageID: 248 Individual Retirement Account (IRA);or o Take a distribution of the money. o The distribution will be subject to ordinary federal income tax withheld at a 20% rate. A 10% tax penalty will also apply If you are under 55 years of age In the year that you leave Nlssan employment. The 10% tax penalty will not apply If you are 55 years of age or older in the year when you leave Nissan employment and retire, regardless of your Company service. o Employees that leave employment before in any year before they turn age 55, cannot take a distribution of their 401(k), including the CAR contribution, without tax penalty until age 59.5. 54. How can I find out what my pension and/or 401(k)/CAR benefit will be? You can go online at www.vanguard.com or call 1-800-523-1188 to obtain retirement estimates and 401(k) distribution options and Information from Vanguard. If you have any questions about your pension estimate, please call Vanguard at the telephone number listed above. 55. Who is eligible for retiree health? To be eligible for retiree health benefits, you must have age and years of service adding up to 70 to begin benefits, in addition to being at least 55 with at least 10 years of service. Employees at age 55 must have 15 years of service. 56. If I have sufficient Company service to qualify to retire health benefits, what benefits am I eligible for? You may be eligible for health benefits, Including medical, dental, and vision coverage for you, your spouse/domestic partner, and eligible dependent children. Your spouse/domestic partner and eligible dependents must be covered prior to retirement to be covered following retirement. Additionally, you can lease up to 4 lease vehicles under the lease vehicle plan in Tennessee and unlimited elsewhere. You may convert your Company paid life insurance coverage to an individual policy. Your optional life insurance coverage ends at retirement. Vehicle Discount Benefit 57. How does the vehicle discount work? Employees who qualify for the ROI Separation Plan may receive one $5,000 discount off the purchase of any new Nlssan or Infinltl vehicle from a dealer. The discount will be applied to the VPP purchase price at the point of sale. You can't begin the purchase process until eight days after you signed the Release. Your discount will be valid for 180 days after your Separation Date, but no later than December 31, 2014. Retirees are not eligible for the vehicle discount. April 8, 2014 12 Nlssan Strictly Confidential P000071 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 24 of 73 PageID: 249 More information regarding the process to purchase a vehicle will be available prior to your Separation Date. 58. Is the discount considered taxable income? Yes. The $5,000 discount is subject to both income and payroll taxes. However, the Company will pay for both the income and payroll taxes. When you receive your W-2 for 2014, your taxable income and the amount of tax paid will reflect your receipt of the discount and the Company payment of the tax on the discount. 59. Can I be eligible for both the vehicle discount and the $1,500 or $750 vehicle rebate? Yes. The Company will pay the rebate by check after you receive title to the vehicle. If the rebate is taxable income to you, the Company will pay the tax on the rebate. Ail employees participating in the RSP can receive the vehicle rebate. You must purchase the vehicle and receive the rebate from the Company within 180 days of your separation or December 31, 2014, wherever is earlier. GO. If I leave employment with Nissan, when will I have to turn in my lease vehicle? Unless you are a retiree, you must turn in your lease vehicle on or before your last day of employment with Nissan. If you owe money on your lease vehicle, It will be deducted from your severance pay. Life and DisabilitY Insurance Benefits 61. What life insurance benefits will I have after I leave employment? Your Company paid basic life insurance and your optional coverage end on the 30'" day after your last day of employment. You can't convert your basic coverage to an individual policy. 62. What can I do with my optional life insurance coverage? You can convert your optional life insurance coverage to a private policy without providing evidence of insurability at your own expense within 30 days of your last day of work. Please contact Met Life, Nissan's life insurance carrier, at 1-877-ASK MET7 for more information. 63. Can I receive the RSP benefits if I am receiving disability pay (short or long term) on the date of my resignation or retirement? Yes. April81 2014 13 Nlssan Strictly Confidential P000072 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 25 of 73 PageID: 250 64. Will I continue to be eligible for disability benefits if I am still disabled on my last day of active employment? You will not be eligible for short term disability after you leave active employment with the Company. However, you wlll be eligible for long term disability benefits, provided you meet the definition of disability under the long term disability plan. Impact on Bonus 65. Will I earn an NNA success/profit sharing bonus, if paid, for. the time that I worked? Because you were employed on March 31, 2014, you have earned your bonus for Fiscal Year 2013, if one is paid. Unless you are eligible to retire, you will not eam any bonus for Fiscal Year 2014. otherwise, to receive the Fiscal Year 2014 bonus, you must be employed on March 31, 2015. Outplacement 66. What outplacement services will Nissan provide to me if I am eligible for the RSP? Nissan has retained Right Management Inc., a national outplacement finn, to provide outplacement services. Additional information and contact information from Right Management will be made available to those employees who leave Nissan. Impacted employees may obtain information regarding the Outplacement Services by contacting Right Management at 866-319-1690. You must enroll In outplacement benefits no later than September 30, 2014 to receive such benefits. Other and General Information 67. Can the Company terminate my employment prior to my last day of work? You will be subject to the same Company rules and corrective action policy that applied to you before your notification of your last day of work. 68. Would I still be eligible for RSP benefits if the Company terminates my employment prior to my scheduled last day of work? No. 69. Will I continue to earn vacation until my last day worked? Yes. AprilS, 2014 14 Nlssan Strictly Confidential P000073 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 26 of 73 PageID: 251 70. When will I receive my last pay check? Employees will receive their last pay check on their Separation Date. (June 30, 2014) 71. Can I leave the Company immediately if I elect to resign with RSP benefits? No. You must stay until your Approved Separation Date. 72. If I receive RSP benefits, will I be eligible to be rehired at Nissan? Yes. You are eligible to be rehired as a Nissan employee or temporary employee for a contractor, provided that you are not collecting your Nissan pension. 73. If I leave the Company, will I be eligible for unemployment? You should contact your state or local unemployment office for information on the requirements for unemployment benefits In your jurisdiction. The Company will not contest your application for unemployment benefits. 74. What happens with my flexible spending account (FSA) benefits? You will stop making contributions effective on your last day of work. For expenses Incurred between January 1, 2014 and your last day of work, you may seek reimbursement within 90 days after your last day worked. How to Obtain Additional Information? 75. How can I find out more information about job opportunities available to me? Please visit the Internal Talent Gateway. Once you are no longer employed, please visit www.nissan.jobs. Alternatively, you may contact your HR Business Partner. 76. How can I find out more information about the outplacement benefits? You can contract Right Management, our outplacement vendor, by calling 866- 319-1690 • . 77. How can I find out more information on severance program benefits? Please contact your HR Service Center at 1-866-599-4647 or through the Internet at www.WINHR.blz If you have any questions. # # April B, 2014 15 Nissan Strictly Confidential P000074 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 27 of 73 PageID: 252 EXHIBIT J Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 28 of 73 PageID: 253 08/10/2015 14:58 FAX 9734010061 NIEDWESKE BARBER PC Linda J. Niedweske -Attorney ID No. 030391988 NIEDWESKE BARBER HAGER, LLC 98 Washington Street Morristown, New Jersey 07960 Phone: (973) 401-0064 Fax: (973) 401-0061 Attorneys for Plaintiff Peter W. McAvoy i PETER W. MCAVOY, j SUPERIOR COURT OF NEW JERSEY li!J003 Plaintiff, \ LAW DIVISION- SOMERSET COUNTY _ i DOCKETNO. L-lcJ?O, [~- v. ; i i Civil Action NISSAN NORTH AMERICA, INC., i ! ! COMPLAINT AND JURY DEMAND ' i Defendants. i. i Plaintiff, Peter W. McAvoy, through his attorneys Niedweske Barber Hager, LLC, by way of Complaint against Defendant Nissan North America, Inc. ("Nissan"), says: PARTIES l. Plaintiff McAvoy is a New Jersey citizen residing at 14 Langford Drive, Township of Mendham, County of Morris, State ofNew Jersey. 2. During all times relevant to tlris Complaint, Plaintiff MeA voy was an employee of Defendant Nissan as the term "employee" is defined under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et. ~ ("NJLAD"). 3. Defendant Nissan provides automotive products and services, with its Northea,;t Region business offices located at 1501 Cottontail Lane, Somerset, County of Somerset, State of New Jersey. Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 29 of 73 PageID: 254 08/10/2015 14:59 FAX 9734010061 NIEDWESKE BARBER PC li!I004 4. Defendant Nissan conducts business in the County of Morris and, du1ing all times relevant to this Complaint, Defendant Nissan was Plaintiff McAvoy's "employer" as the term is defined by the NJLAD. VENUE 5. Pursuant to New Jersey Court Rule 4:3-2(b), venue is proper in Somerset County as Defendant Nissan regularly conducts business in that county. FACTUAL BACKGROUND 6. On or about October 26, 1983, Plaintiff McAvoy was hired as Defendant Nissan's Field Sales Manager in its Boston regional office. 7. Beginning on or about January 6, 1986 and continuing until June I, 1998, Plaintiff McAvoy was promoted to a variety of positions within Defendant Nissan ranging from Assistant Regional Sales Manager at Defendant Nissan' s Denver regional office to National Manager, Contests & Incentives, a senior manager level position at Defendant Nissan's national headquarters in Gardena, California to Regional Parts & Service Manager, Nissan Division, also a senior manager level position at Defendant Nissan's Northeast Regional Office in Somerset, New Jersey. 8. On or about April I, 2009, Defendant Nissan implemented a regional restructuring which reclassified the Regional Parts & Service Manager position to Parts & Service Manager, but still located in Somerset, New Jersey. 9. Despite the reclassification and the changing and reclassifying of grade levels and pay bands, PlaintiffMcAvoy's salary was "red circled" meaning that he was permitted to maintain his prior salary which was approximately $45,000 over the new pay band maximum. 2 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 30 of 73 PageID: 255 08/~0/2015 14:59 FAX 9734010061 NIEDWESKIJ BARBER PC ilJ005 10. In or about October 2011, Tim Gilbert ("Gilbert"), Defendant Nissan's Assistant Regional Manager, requested tbat Plaintiff McAvoy accept the Associated Business Manager position. II. Plaintiff McAvoy agreed as long as his salary would be "red circled" in case of a reorganization or reclassification. 12. Gilbert agreed and tbis arrangement was memorialized in an email, dated October 17, 2011, from Edith Ballard ("Ballard"), Defendant Nissan's Human Resources Business Partner, where she contirmed that Plaintiff McAvoy's salary was "red circle~!." 13. Based on this agreement, Plaintiff McAvoy accepted the position of Associated Business Manager, which had an AI level classification. 14. In a memorandum, dated AprilS, 2014, Plaintiff McAvoy was notified of a Regional Optimization Initiative ("ROP'} being implemented by Defendant .Nissan, effective July l, 2014. 15. In a separate memorandum, dated AprilS, 2014, Tracy Jones ("Jones"), Defendant Nissan 's Director Total Rewards, advised Plaintiff McAvoy that, per the ROI, the A•sociated Business Manager position was being reclassified to an AH level, but his pay would be based on a reduced annual salary range maximum for the AI level classification. 16. Plaintiff McAvoy was being placed on a salary reduction plan to bring his cuO'ent annual base salary of$192,005 to the ROI's annual salary range maximum for the A! level classification of $143,069.00. 17. Plaintiff McAvoy was also advised that should he remain employed for more than two (2) years after July 1, 2014, Defendant Nissan may further reduce his salary to the annual salary range maximum for an AH classification of$99,498.00. 3 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 31 of 73 PageID: 256 08/1012015 14!59 FAX 9734010061 N!EDWESKE BARBER PC li!J006 18. The reduction would be implemented in three (3) phases: (a) January l, 2015- $192,005.00 salary reduced by 33% of the amount over the salary grade maximum ($16,312.00) to $175,693.00; (b) January l, 2016- $175,693.00 salary reduced by $16,312.00 to $159,3P.l.OO; (c) September 1, 2016- reduction to the FYI 6 salary grade maximum for an AH classification <:qualing $99,498.00. 19. In total, the reduction would constitute a 48% reduction from the agreed upon "red circled" amount of$192,005.00. 20. The ROI was implemented as planned and, effective January 1, 2015, Plainti1f McAvoy's salary was reduced to $175,693.00. 21. By reducing Plaintiff McAvoy's salary pursuant to the ROI; Defendant Nissan breached a binding agreement to "red circle" his salary. 22. After the ROI was implemented, Plaintiff McAvoy learned that the sharp pay cuts were disparately impacting employees age fifty (50) and older, such as Plaintiff McAvoy whu was born in 1952. 23. Plaintiff McAvoy also realized that the most extreme of the salary cuts would occur at or about the time he reached age sixty-five (65), which, upon information and belief, is the time that Defendant Nissan intended for him to retire. 24. At a January 20, 2015 retirement dinner for Gary Frigo ("Frigo"), Defendant Nissan's Regional Vice-President of Northeast Region, Plaintiff McAvoy was present when Frigo shouted to Jon Watanabe ("Watanabe"), Defendant Nissan's Regional Operations Manager, "why haven't you gotten MeA voy to retire yet?" 25. Defendant Nissan was systematically reducing the age of its workforce through job eliminations, reorganizations, and steep salary cuts. 4 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 32 of 73 PageID: 257 08/I0/2015 15:00 FAX 9734010061 NIEDWESKE BARBER PC 26. As a result ofthese actions, Plaintiff McAvoy has been dama.ged and will continue to be damaged. FIRST COUJ\'T vfilftd Employees ,. 1 ~) Reauotlon .RoilUcUon Roauctlon .· !ot •Oller Malm • • · •"veragq · · <" " c e A c: »' ~ ;'~ '- ) ) ' i' " ~ ReUrinA 040004 LT EE, former 22 041380 (blank) 043850 47 8,188 39 Ri!ilrri'l'o~\'l!:~"f~";;•. •• :;,; .t,·,,;j<'C'~ii!·k~m~;ii,il'!':Yi.i'ct§'5"~~~;" ...• ; i ''1~~\r;•'·~• .. }~:ai·· Lower Grade 042284 Sf f;lgr •. f3g! R~S Mgr . Lawor.Grild&:r<~iif'· '.. > . Over MI!X • HIAhot Grade 041989 Ov~g~g~l!~llifi; Over Max • Same Grade 042324 2600M 042421 Unko2: 1 1 1 .-;:,3! 59 64 048113 1 095463 1 JI6W£~Uiili'owF;{L . .>': ',< .'~; •. ;l, Re!lrlnp 043418 Ret!d~!iaJ· other Grand Total 1 J· 43 48 LowarGrade 042432 1 043138 1 045029 1 t~WijfCGlla-~4FqlaJi1'§~;-~Jt:~-, :<%~ !,~' ;~~~ Offer/Eieatlan nat received 042228 1 042823 1 042930 1 044737 1 047101 1 049159 1 100392 1 •ru,i._"!.~it:P.0'tli,!;il?.>!'O<-\,OC"'-,t ~-.ceo..: i._ '1.'';-"-J? ~\:_~_:f;J!';II ~~~~~1!9.tl~m.J.~t~1j1,;.~tt&-E~li~'Jl.;.s"'!iti/J other · 47 Grand Total 57 La war 041873 1 042388 1 047271 1 tiaw¥~r/~~tiif6fili : '~ ;;,;;";: i: '·:,\;.·. ~' other 44 Grand Total 48 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 46 of 73 PageID: 271 DiGabriele, McNulty, Campanella & Co., LLC CERTIFIED PUBLIC ACCOUNTANTS Forensic Accountams & Business Advisers Had we received the Regional Schedules with the omitted information identified previously, our analysis of the disparate targeting of certain employees would be enhanced. In addition to the completed Regional Schedules, our analysis would require copies of the ROI memorandums provided to the effected employees, to assess the terms and implementation of the ROI. Lastly, we were provided an additional schedule for the Northeastern Region, providing separate details for salary adjustments, changes in salary grades, and other notes. The relevant data for the Northeast Region is summarized in the following schedule: ' ~ " - ~ ~ "~ ~ ~ > ~, ~ ~ < ( ~ , ' , NoftqfOOil ~l!jjlan •· , Jolal l.11iangs e':lilj'l:Ol Salaihl$ as or Salad~~ ••~>I Safari~ as of Salatl® Aner supptementl!l schedule Jns\at'J{(%) (lm~1141 d!1115 111116 etma sol ~ ~ - " - ' OeCreaae Me Avoy, Peter W -48.18% $ 192,005 $ 175,693 $ 159,381 $ 146,648 $ 99.498 Dearoata·Othor Hart. Oavld R ·5.96% 124,058 113,788 118,833 116,683 Trebes, Joseph A -4.55% $ 149,693 $ 143,069 $ 143,089 ReUrlnp Burch. Peul E. ·2.29% 148,425 143,069 143,069 Calico. Rhonda Ann 90,015 Mead, Demls l 118,127 118,127 Orbe, Peter A 7.10% 118,698 124,989 124,989 Toft, NancyJ 71,064 lncreue Brown Sr., Olen A 25.81% 79.488 100,000 COiro, S<:ott P 2.62% 127,310 130,646 130,646 Lofaro, Arcangelo A 15.00% 114,389 131,525 Rogers, Paul J 9.64% 76,352 83,711 63,711 No ahange $ 5,583,636 s 5,563,836 Outsourced $ 119,294 $ Decrease in Salaries per ROI letter: Peter McAvoy was disproportionally impacted by the terms of the Regional Optimization Initiative ("ROI"). According to the documents provided, McAvoy was the only employee in the Northeast Region subject to the 3-phase ROI schedule outlined in Nissan's letter dated April 8, 2014. According to the complaint, McAvoy was assured prior to the ROI that his compensation was "red circled", in case of a reorganization or reclassification. McAvoy asserts that Nissan breached this agreement by reclassifying his position and reducing his compensation. Per the schedules provided by Nissen, McAvoy experienced an overall salary reduction of (-23.62%) fi'om $192,005 reported as of 12/31/14 to $146,646 as of9/l/16. According to the April8, 2014 Jetter, Nissan states that they may further reduce McAvoy's pay to the maximum indicated for the AH classification level, $99,498, as of July I, 2016. IfNissan implements this change, it would reflect a total reduction in salary of (-48.18%). Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 47 of 73 PageID: 272 DiGabriele, McNulty, Campanella & Co., LLC CERTIFIED PUBLIC ACCOUNTANTS Forensic Accoumams & Business Advisers Decrease in Salaries- Other: Prior to the implementation ofthe ROJ, Nissan's Northeast Region employed 64 individuals. As of 1/1/2015, Nissan's schedules for the Northeast Region attribute two additional salary reductions as an effect of the ROI program. Neither of the attributed reductions are implemented in the same 3-phase manner as applied to McAvoy. Nissan's documents state that the first employee listed, David Hart, was subject to periodic salary reductions as a product of the ROI restructuring. The intent of the reductions was to revise Hart's salary to the FY14 salary grade maximum of$103,518. Nissan's schedule shows that Hart's first periodic reduction occurred on 1/1/15. No subsequent reduction of Hart's salary occurred, as Nissan attributes a system error leading to an increase in Hart's salary as of 6/1/15. Irrespective ofNissan's stated error, Hart's reduction on 1/1/15 was not applied on the same proportional terms outlined in McAvoy's ROI Jetter {approximately 33% per period for 3 periods). Had Hart's salary been periodically reduced by applying the same terms indicated in McAvoy's ROI Jetter, Hart should have experienced the first of three salary reductions on 1/1115 approximating $5,984 (approximately 33% of the overall reduction of $17,952 to ultimately arrive at the relevant salary grade maximum). No explanation has been provided as to Hart's actual reduction on 1/1/15 of$10,270. The other salary reduction attributed to the ROI by the Defendant is for the employee Joseph Trebes, which would ultimately result in a salary after the ROI approximating the projected maximum salary for the FYJ4 AI level of $143,069. The effected employee's salary and job position were changed as of 01/01/15, and reflects a total salary reduction of (-4.55%). No explanation or support has been provided as to why the employee was not subject to the same 3- phase ROI schedule as McAvoy. We were not provided an explanation as to whether the adjustment was related to a change in job position, the implementation of the ROI initiative, or some other factor. Conclusion: Our analysis finds additional support that certain employees were disparately impacted by the implementation of Nissan's ROI, including the Plaintiff, Peter McAvoy. The schedules and documents provided by the Defendants are incomplete, and require additional support in order to enhance our analysis. In order to enhance our analysis, we would require updated versions of the Regional Schedules and Severance schedule, in addition to copies of the ROI memorandums remitted to the effected employees, to assess the terms and implementation of the ROI. Should you have any questions, feel free to contact me at my office. Sincerely, James A. DiGabriele PhD/DPS, CPA/ABV/CFF Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 48 of 73 PageID: 273 EXHIBITM Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 49 of 73 PageID: 274 DiGabriele, McNulty, Campanella & Co., LLC CERTIFIED PUBLIC ACCOUNTANTS Forensic Accountants & Business Advisers James A. DiGabrieJe. CPA+ • t. .. • + ao " - .I 1_1 James F. McNulty, CPA+ • A IUchanl A. Campanella. CPA¥ c., + Certified Financial Services Auditor • Certified Forensic Accountant A Diplomate, American Board of forensic Accounting: + Cmifled Fraud Examiner • Master of Science. Taxation +Master of Science. Finnnt'~ ""' Certified Valuation Analyst "' OoctorofProfcsslonal Studi~ - Accredited in Business Vuluation ./ Doctor ofPhilosophy L; Certified in Financial Forcnsit:s February 17,2017 Linda J. Niedweske Esq. Niedweske Barber Hager, LLC 98 Washington Street Morristown, New Jersey 07960 ~2 HORSENECK ROAD FAIRFIELD. NJ 07004 PHONE: (973) 243·2600 FAX: (973) 243-2646 www.dmcpa.com wwv:.thecpuexpert.com Re: Peter W. McAvoy v. Nissan North America, Inc Valuation of Economic Damages Dear Ms. Niedweske, I have reviewed sufficient and relevant underlying data pertaining to the above referenced matter and render my professional opinion with respect to the disparate impact of the terms of the Regional Optimization Initiative ("ROI") sustained by Peter McAvoy (hereinafter McAvoy) as a result of Nissan North America, Inc. (hereinafter Nissan) reducing his pay in the position of Associated Business Manager on January I, 2015. The damages consist of lost wages, lost 40 I K, CAR compensation, and Bonus Compensation that McAvoy would have otherwise generated with Nissan. Our analysis of the disparate impact of the Nissan ROI on employees age fifty (50) and older, as alleged in the Complaint dated July 30, 2015, examines the relevant information included in documents provided by the Defendant This letter will supplement our analysis and expert report and supplemental report, each dated July 15,2016. This analysis is based on a reasonable degree of forensic accounting and economic probability. By reason of performing this analysis and preparing this report, we are not required to give an expert testimony, nor to be in attendance in court or any government hearing with reference to the matters contained herein unless prior arrangements have been made regarding such additional engagement. Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 50 of 73 PageID: 275 DiGabriele, McNulty, CampaneUa & Co., LLC CERTIFIED PUBLIC ACCOUNTANTS Forensic Accountants & Business Advisers I have no responsibility to update this report for events and/or circumstances occurring after the date of this report's issuance, however, we reserve the right to amend the report if information or documents come to my attention in the future that may alter this analysis. Assignment: We were asked to update our findings as it related to the alleged disparate impact of the Nissan ROI on employees age fifty (50) and older, as alleged in the Complaint dated July 30, 2015. In addition to the documents previously provided, we received copies of correspondence sent to the employees of Nissan in the Northeast region. The correspondence includes positional offer letters (or "ROI memorandums") and e-mail correspondence with the subject "Salary Adjustment" for certain employees of the Northeast region for Nissan America, sent by upper management of the company on or about April 8, 2014. The following schedule updates our findings for those negatively impacted by the ROI for the Northeast Region: Northeast Region - Supplemental Total Salaries Salaries as Salaries Salaries as Salaries After Age Change in Before ROI as of Schedule Salary(%) (12131/14) of 1/1(15 111/16 of9/1/16 ROI -~----------. -·--~------------ ·---------·--Decrease -----·------- '0•• ...... - ... ~-----·-· ---·---- ---------------~ Me Avoy, Peter W 63 -48.18% $ 192,005 $ 175,693 $159,381 $ 146,648 $ 99,498 Hart, David R 59 -5.96% $ 124,058 $ 113,788 $116,633 $ 116,663 Trebes, Joseph A 50 -4.55% 149,893 143,069 143,069 Fielder, Ken S 56 $ 108,650 $ 108,650 Ring, RichardS 53 $ 128,744 $ 128,744 Retiring/Outsourcad -- - - -------·---· - Burch, Paul E. 58 -2.29% $ 146,425 $ 143,069 $ 143,069 Mead, Dennis L 59 $ 118,127 $ 118,127 RaW, Natalie 49 $ 59,647 $ Schmidt, Marylynn 48 $ 59,647 $ Calico, Rhonda Ann 62 $ 90,015 $ Toft, Nancy J 59 $ 71,064 $ Decrease in Salaries per ROI Jetter: Peter McAvoy was disproportionally impacted by the terms of the Regional Optimization Initiative ("ROI"). According to the documents provided, McAvoy was the only employee in the Northeast Region subject to the 3-phase ROI schedule outlined in Nissan's letter dated April 8, 2014. Upon reviewing the additional ROI schedule provided by the defendants, discussed throughout this report, it appears that Nissan determined the number of adjustments applied for each employee would be based on the amount of excess earnings prior to the ROI relative to the maximum earnings for their updated salary grades1• 1 It appears that Nissan reduced employee wages to salary grade maximums in 1-, 2-, or 3-stage adjustments based on ovemges of prior wages to the salary grade maximum subsequent to the ROI. The adjustments were made as follows. 1-stage adjustments: 2 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 51 of 73 PageID: 276 DiGabriele, McNulty, Campanella & Co., LLC CERTIFIED PUBLIC ACCOUNTANTS Forensic Accountants & Business Advisers According to the complaint, McAvoy was assured prior to the ROI that his compensation was "red circled", indicating that his earnings would not be reduced in the event of a reorganization or reclassification. McAvoy asserts that Nissan breached this agreement by reClassifYing his position and reducing his compensation. Per the schedules provided by Nissan, McAvoy experienced an overall salary reduction of (-23.62%) from $192,005 reported as of 12/31114 to $146,646 as of911116. According to the AprilS, 2014letter, Nissan states that they may further reduce McAvoy's pay to the maximum indicated for the AH classification level, $99,498, as of July I, 2016. IfNissan implements this change, it would reflect a total reduction in salary of(-48.18%). Prior to the implementation of the ROI, Nissan's Northeast Region employed 64 individuals. As of 111/2015, Nissan's schedules for the Northeast Region attribute immediate salary reductions for two additional employees as a result of the ROI program. Both of these individuals, David Hart (age 58) and Joseph Trebes (age 49) were subject to immediate wage reductions intended to reduce their wages to their relative salary maximums. According to the notes of the defendant, David Hart was subject to periodic salary reductions as a product of the ROI restructuring, while retaining the title of"Regional Service Operations Consultant" (or "SOC"). The intent of the reductions was to revise Hart's salary to the FY14 salary grade maximum of $103,5182. The new ROI schedule provided indicates this was intended to be accomplished through two equal periodic reductions of $10,270 on January I, 2015 and January I, 2016, respectively. On January I, 2015, Joseph Trebes salary was reduced from $149,893 to the AI salary grade maximum of$143,069. According to the positional offer sheet to Ken Fielder (age 55), Fielder was offered a position in "Corporate Services" with the salary grade of AI. The documents provided by Nissan report conflicting information regarding Fielder's salary grade. The new ROI schedule indicates that Fielder's wages were intended to be reduced to the AH maximum of$103,518 on January 1,2015. Richard Ring (age 53) was subject to a lower salary grade from AJ to AI as a result of the ROI. Although Ring's wages were not immediately reduced, the lower salary grade limited his potential future earnings with the company. Retiring/Outsourced: According to the notes of the defendant, Paul Burch (age 58) retired prior to the implementation of the ROI restructuring. Had he remained employed, Burch's title would have changed from "Dealer Operations Manager'' to "Senior Dealer Operations Manager"; and as a product of the ROI, his salary would have been reduced from $146,425 to $143,069 on January I, 2015. Lastly, the schedule above displays the employees of the Northwest region who retired or had their positions outsourced as a result of the ROI. In evaluating the documents provided to date, it appears that the only employees who were negatively impacted by the ROI in the Northeastern region were approximately 50 years of age or older. overages ranging between 2.0% and 9.6%. 2-stage adjustments: overages ranging between 13.5% and 18.5%; and 3-stage adjustments: overages ranging between 18.0% and 46.1% 2 The defendants note that a system error resulted in Hart receiving an increase in wages subsequent to the ROI implementation. 3 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 52 of 73 PageID: 277 DiGabriele, McNulty, Campanella & Co., LLC CERTIFIED PUBLIC ACCOUNTANTS Forensic A.ccoumants & Business Advisers Overall Impact of ROI- Immediate Reductions of Earnings: We were provided with a schedule of Nissan employees which were immediately subject to earnings adjustments as a result of the ROI beginning January I, 2015.3 The following schedule summarizes the Nissan employees which were subject to immediate, periodic reduction of wages as a result of the ROI4: IJ!ss:2013 OVerage as a Age at Wages Grade OVerage Amount %of Prior Adjustment Adjustment Adjustment ROI beforeROI MaximUf'l)_ .J!!!.b..e Reduoed} Wg:es lll/2Dl5 1/'li2Im 9@~6 W!!ieS taeeed ~ 5ame Grade "" ·-·----------·~--------- -- Burch, Paul E 57 146,425 (143,069) 3,356 2.3% (3,356) Pannella,Tammy M 56 147,037 (143,069) 3,968 2.7% (3,968) Fielder, KenS 55 108,650 (103,518} 5,132 4.7% (5,132) Trebes, Joseph A 49 149,893 (143,069} 6,824 4.6% (6,824) Hart, David R 58 124,058 (103,518) 20,540 16.6% (10,270) (10,270) Lagergren, Thomas J 57 165,484 (143,069) 22,415 13.5% (11,208) (11,208) Monge, Julius J 52 180,121 (143,069) 37,052 20.6% (12,3511 (12,3511 (12,3511 Fenton, Joseph T 66 lB1,361 (143,069) 38,292 21.1% (12,7641 (12,764) (12,7641 Lower Grade Moore, James A 61 108,9n (103,518) 5,454 5.0% (5,454) Uddell, Michael R 59 112,883 (U33,518) 9,365 8.3% (9,365) Weinstein, David J 59 125,701 (103,518) 22,183 17.6% (11,092) (11,0921 Payne, John E 53 152,436 (103,518) 48,918 32.1% (16,306) (16,3061 (16,306) Walker, Walter 62 181,868 (103,518) 78,350 43.1% (26,117) (26,117) (26,117) McAvoy, Peter W 62 192,005 (103,518) 88,487 46.1% (29,496) (29,4961 (29,496) Retirins; Candeto, Vickie C 62 87,809 (79,621) 8,188 9.3% (8,188) Vazquez, George 57 174,505 (143,069) 31,436 18.0% (10,479) (10,479) (10,479) Witt, Brian C 56 190,710 (143,069) 47,641 25.0% (15,880) (15,880) (15,8801 No l!osltlon identified -··-··--··- .. -- ----------------····- ------··-- --- Bumb, Philip D 50 16.1,000 (143,069) 17,931 lU% (8,9661 (8,966) As shown in the above schedule, 100% of the employees subject to an immediate wage reduction as a result of the ROI were approximately 50 years of age or older at the time of the ROI. 'The updated ROJ schedule indicates Adjustments were to be applied on Jenuary I for each of the yeers 2015,2016, and 2017. Our schedule displays the final adjustment to take place on September 30, 2016, as reported in the Salary Adjustment correspondence to Peter McAvoy. 4 Ages of employees as ofi0/25/2015 are reported in the Defendant's Supplemenlal Answers to Plaintiff's lnlerrogatory NO.2. Ages of employees during the first adjustment (1/1120 15) are approximated by reducing their reported ages by I year. 4 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 53 of 73 PageID: 278 DiGabriele, McNulty, Campanella & Co., LLC CERTIFIED PUBLIC ACCOUNTANTS Forensic Accountants & Business Advisers Regional Positions for Associated Business Manager ("ABM") and Service Operations Consultant ("SOC"): As a result of the ROI, the positions for Associated Business Manager ("ABM") and Service Operations Consultant ("SOC") were reclassified from the AI grade to the AH gmde. The employees selected for these positions appear to primarily target employees which were over 50 years old. The following section will address the positions separately. Regional Service Operations Consultant ("SOC"): According to the documents provided, a single individual from each of the five regions was to be assigned to the role for "Regional Service Operations Consultant" ("SOC"). The following schedules summarize the activity related to the SOC position as a result of the ROI: Overage Location Name A e Old New o be Reduced Old Positioo New Posidoo Nis~ Ccntta1 Boschee, Joshua 35 AI AH RogimaiSOC Rogima!SOC Nissan Midwest Weinstein, David J 59 AI AH $22,183 RogimaiSOC RegimaiSOC Nissan NOl'lheast Hart, David R 58 AH AH $20,540 RgJ F IICility Mercbdsilg Mgr RogimaiSOC Nissan Northeast Hanttis, K£ilh 59 AI AI &giona/SOC Senior Fixed Oper Mg Niwm Southeast Walker, Walter 62 AI AH $78,350 Loyahy Perfimnance Mgr RogimaiSOC NiJsan SoutheaJt Feickert, Carl 52 AI &giona/SOC NO FTE position identified Ni5san West Moore James A 61 AI AH $5,454 Rorzi:mal soc RoekmalSOC Of the 5 employees who accepted the SOC position, 4 individuals would be subject to a reduction in pay. All 4 of such individuals were over the age of 50 at the time of the ROI implementation. The former SOC for the Northeast region prior to the ROI, Keith Harmis (age 59), earned an annual rate of $101,712 immediately prior to the ROI5• As a result of the ROI, David Hart (age 58) accepted the role of SOC, including a reduction of earnings to approach the salary grade maximum of$103,518 from his prior wages of $124,058. Harmis was assigned to another role in the region, and experienced no change in pay. The former SOC for the Southeast region prior to the ROI was Carl Feickert (age 52), earned an annual rate of $80,7686, and was replaced by Walter Walker (age 62). Because of this assignment, Walker would be subject to a reduction of wages from $181,868 to $103,5187• According to Nissan's schedule, Walter Walker would be subject to the second largest reduction of wages as a result of the ROI, second only to Peter McAvoy. Feickert was not offered another position at Nissan. 5 Had Hannis remained in the SOC position, he would not have been subject to an immediate reduction in wages due to the position's reclassification to the AH salary grade. 6 Had Feickert remained in the SOC position, he would not have been subject to an immediate reduction in wages due to the position's reclassification to the AH salary grade. 1 It appears that Walker's wages were reduced to $143,069 (the maximum level for the AI level). According to the tenns of the Salary Adjustment, the Company states that they may reduce salary further to the maximum of the AH level. 5 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 54 of 73 PageID: 279 DiGabriele, McNulty, CampaneUa & Co., LLC CERTIFIED PUBLIC ACCOUNTANTS Forensic Accountants & Business Ad1•lsers Regional Associated Business Manager ("ABM"): According to the documents provided, a single individual from each of the five regions was to be assigned to the role for Regional Associated Business Manager ("ABM"). The following schedule summarizes the activity related to the ABM position as a result of the ROI: Overage Location Name Age Old New (To be Reduced) Old Position New Position N'ISS8DCcntral Liddell,MicbaeiR 59 AI AH $9,365 Rcgiona!ABM Rcgiona!ABM NissanMilwest Ceadey,DustinS. 35 AI AH Regiona!ABM Regiona!ABM N'msanNortbcast McAvoy,PeterW 62 AI AH $88,487 · Rcgiona!ABM RcgionaiABM NissanSoutbeast Fisher, TaylorK 24 AG AH RcgimaiABM RegionaiABM Nfssan Southeast Mayesr Antoinette M 40 AI AI Regional ABM ~enlor Dealer Operadons Mgr Nissao West Payne, John E 53 AI AH $48,918 Dealer Ops Mgr Regimal ABM NisSan West Witt, Brian C 56 AI $47,641 Ref!lonal ABM NO FTE position identified , Of the 5 employees who accepted the ABM position, 3 individuals would be subject to a reduction in earnings. All three of those individuals were over the age of 50 at the time of the ROI implementation. The former ABM for the West region prior to the ROI was Brian Witt (age 56), earned an annual rate of $190,710, and was replaced by John Payne (age 53). Because of this assignment, Payne would be subject to a reduction of wages from $152,436 to $103,518. Only Walker and McAvoy were subject to a greater total reduction of wages. Witt was not offered another position at Nissan. Had Witt (age 56) retained a position in the AI salary grade, he would have been subject to the fourth greatest reduction for Nissan employees as a result of the ROI, behind McAvoy (age 62), Walker (age 62), and Payne (age 52)8• In total, 7 out of the I 0 employees accepting the SOC and ABM positions were over 50 years old at the time of ROI implementation. As a result of the ROI, only the employees over 50 were subject to immediate salary reductions. In addition, the former SOC and ABM employees which were not retained for their respective positions subsequent to the ROI were either not offered positions with the company or would have been under the AH salary grade maximum for the position of$103,069. 'Had Brian Witt retained the ABM position, his wages would be subject to a reduction of$87,192 in order to reach the maximum salary for the AH salary grade. 6 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 55 of 73 PageID: 280 DiGabriele, McNulty, CampaueUa & Co., LLC CERTIFIED PUBLIC ACCOUNTANTS Forensic Accountants & Business Advisers Regional Parts & Service Operations Manager: In perfonning our analysis, we noted additional instances of the ROis disparate impact on employees over the age of 50 related to activity for the "Regional Parts & Service Operations Manager" position. The schedule below summarizes the positional activity for the related employees: Location Name Ase Old New Old Position New Position Nissan West Bumb,Phllip D 50 AJ Rgl Parts SvcOps Mgr NO FTE position Identified Nissan Midwest Mack, Katherine L 32 AJ AI Rgl Parts Svc Cps Mgr. CMM + Mktg Analytics Mgr Nissan Northeast Ring, RichardS 52 AJ AI Rgl Parts Svc Cps Mgr CMM + Mktg Analytics Mgr Nissan Southeast Rust, Steven J 39 AJ AL Rgl Parts Svc Cps Mgr Regional Aftersales Manager Nissan Central Sutherland, Alan John 59 AJ AI R!!l Parts Svc OJ:!S Msr Resional Aftersales Manaser • The fonner Regional Parts and Services Operation Manager for the West region immediately prior to the ROl was Phillip Bumb (age 50), earning approximately $161,000 per year and maintained a salary grade of AJ. According to the documents provided, Phillip Bumb was not offered a position with the company. In addition, both Steven Rust (age 40) and Alan John Sutherland (age 59) accepted positions for "Regional Aftersales Manager" for the Southeast and Central regions, respectively. Despite accepting similar positions, Rust (age 39) received an increase in salary grade (from AJ to AL), while Sutherland (age 59) received a decrease in salary grade (from AJ to AI). Overall Impact of ROI- Overview of Negative Impact: Our analysis found additional support that the ROI had a disparate impact on employees who were approximately 50 years of age or older. Many employees were impacted through immediate wage reductions and/or reduced potential future earnings. Additional employees were either not extended positional offers from Nissan subsequent to the ROI, retired, or were tenninated. The following schedule summarizes the impacted employees as a result of the ROI: 7 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 56 of 73 PageID: 281 DiGabriele, McNulty, Campanella & Co., LLC CERTIFIED PUBLIC ACCOUNTANTS Forensic Accountants & Business Advisers 2013 OVerqeasa A&eat Waaes Grade Overage Amount "of Prior AdJustment Adjustment ROI beforeROI Maximum {!!!be reduced! Wages 1/1/2015 1/1/2016 Wages Capped- Same Grade Fenton, Joseph T 66 181,361 (143,069) 38,292 21.1% (12.764) (12.764) Monge, Jullw; J 52 180,121 (143,069) 37,052 20.6% (12,351) (12,351) Lagergren, Thomas J 57 165,484 (143,069) 22,415 13.5% (11,208) (11,208) Hart, David R 58 124,058 (103,518} 20,540 16.6% (10,270) (10,270) Trebes, Joseph A 49 149,893 (143,069) 6,824 4.6% (6,824) Reider, Ken S 55 108,650 (103,518) 5,132 4.7% (5,132) Pannella,Tamm'{ M 56 147,037 {143,069) 3,968 2.7" (3,968) Burch, Paul E 57 146.425 (143,069) 3,356 2.3" (3,356) Lower Grade McAvoy, Peter w 62 192,005 (103,518) 88,487 46.1% (29,496) (29,496) Walker, Walter 62 181,868 (103,518) 78,350 43.1% (26,117) (26,117) Payne, John E 53 152,436 (103,518) 48,918 32.1% (16,306) (16,306) Weinstein, David J 59 125,701 (103,518) 22,183 17.6% (11,092) (11,092) Uddell, Michael R 59 112,883 (103,518) 9,365 8,3,. (9,365) Moore, James A 61 108,972 (103,518) 5,454 5.0!< (5,454) Retiring Witt, Brian C 56 190,710 (143,069) 47,641 25.0!< (15,880) (15,880) Vazquez, George 57 174,505 (143,0691 31,436 18.0!< (10,479) (10.479) Candeto, Vickie C 62 87,809 (79,621) 8,188 9.3" (8,188) Calico, Rhonda Ann 61 Taylor, Jack W 61 Nichols, M Louise 61 Allen, Mary E 59 Toft, Nancy} SB Vogelsong, Michael J 55 Morgan,Marilyn 66 Brualdl,Terrence D. 63 Mead, Dennis 58 . ~~~~~n fdentffJed -"··---.-"--·~--·---··· Bumb, PhllipO so 161,000 (143,069) 17,931 11.1% (8,966) (8,966) Lopez, Carlos 0. 36 Feickert, carl 52 Grossman ,Janice A. 60 Hershik, Dawn I 48 Huston, GUbertJ 55 Lee, Jennea G so DIPietro, Nicholas 25 Tue!ler, Mark M 47 Rtzsimons, Kevin 48 Ford, Andre Deangelo 25 Lower Grade· Future Cap Mack,Katherlne L 32 Ring, Richard S 52 Keegan, John C 52 Cearley, Dustin S. 35 SUtherland, Alan John 59 Boschee, Joshua 35 Faz. Jessica Bray 32 Termination· Admin Newton, Rom! Y. 42 Tokuoka, Usa G 48 Reif, Natalie 48 Born, Kimberly A. 53 Schmidt, Marylynn 47 Davis, Troy W. 41 8 Adjustment 9l30/2016 (12,764) (12,351) (29,496) (26,117) (16,306) (15,880) (10,479) Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 57 of 73 PageID: 282 Conclusion: DiGabriele, McNulty, CampaneUa & Co., LLC CERTIFIED PUBLIC ACCOUNTANTS Forensic Accountants & Business Advisers Based on the documents provided to date, our analysis finds additional information supporting the disparate impact of the Nissan ROI on employees age fifty (50) and older, as alleged in the Complaint dated July 30, 2015, including the Plaintiff, Peter McAvoy. Should you have any questions, feel free to contact me at my office. Sincerely, James A. DiGabriele PhD/DPS, CPA/ABV/CFF 9 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 58 of 73 PageID: 283 EXHIBITN Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 59 of 73 PageID: 284 CD ;\ Charles. River l'C\. Associates Prepared for: LiWer Mendelson Three Parkway 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102 Prepared by: Rebuttal Report in the Matter of Peter W. McAvoy v. Nissan North America, Inc. Matthew Thompson, Ph.D. Charles River Associates 1545 Raymond Diehl Road Suite 210 Tallahassee, Florida 32308 Date: March 17,2017 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 60 of 73 PageID: 285 March 17, 2017 Charles Ril.er Associates Table of Contents 1. Introduction ....••••.•.................................••.••••.•...•.......•••..••.........................•..............•••••...•. 1 2. Qualifications ........................••.•.•.•.................•••................•••••.............•.••••......................•.. 1 3. Materials Reviewed ...........................•••..........•.••.................••..••.......................................... 2 4. DiGabriele Reports ••••••••.•...................................•••••..•..•........••••..•••............•..•••••...•............ 2 5. Concluding Remarks ...........•.•••••••............•.•••..•.•................••••...............•..•.•.....•................• 3 Page i Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 61 of 73 PageID: 286 March 17, 2017 Charles Ril.er Associates 1. Introduction At the request of counsel for Nissan North America, Inc. (Nissan), I reliewed the December 30, 2016 and February 20, 2017 reports prepared by Plaintiffs expert, James DiGabriele, Ph.D., in the matter of Peter W. McA1.0y v. Nissan North America, Inc. Based on my reliew of Dr. DiGabriele's reports, I find the following: • Dr. DiGrabriele performs no statistical analysis of either the Regional Optimization Initiative (ROI) or the "Over the Max" decision process. • Dr. DiGrabriele's "analysis" consists of lists of Nissan employees that require no specialized area of expertise to prepare. • Dr. DiGrabriele's lists cannot "support that the ROI had a disparate impact on employees who were approximately 50 years of age or older (February 2017 report, p. 7)," as he purports. These lists do not examine whether similarly situated employees who were younger than 50 years of age (those who were over the salary range maximum) were significantly less likely to have their salary reduced to the salary range maximum. Each of these findings are discussed in more detail below. 2. Qualifications I am a labor economist experienced in the statistical analysis of employment practices, employment outcomes, and the computation of economic Joss estimates in employment matters. In this capacity I routinely work with company-specific Human Resources information systems, time-keeping and employer payroll data. Using these data I am regularly retained to examine whether the data support allegations raised in Equal Employment Opportunity (EEOC, Title VII and ADA) matters, Office of Federal Contract Compliance Program (OFCCP) investigations, Fair Labor Standards Act (FLSA) and state wage and hour litigation matters, as well as estimate potential economic losses. I completed the Ph.D. in Economics at the University of North Carolina -Chapel Hill in 1997. I am currently a Vice President and Practice Leader of Charles River Associates' (CRA) Labor and Employment practice, a position I have held since 2007. CRA is a research and consulting firm. CRA's Labor and Employment Practice professionals work with indiliduals, government agencies, colleges and universities, corporations and other organizations to analyze employment decision-making processes and to compute estimates of the value of alleged economic losses. Prior to my employment with CRA, I held the position of Principal with ERS Group, Inc. (ERS), an economic consulting firm that specializes in labor and employment issues. I was employed at ERS from 1997 until 2007. My billing rate is $550. The staff supporting me on this matter bill at rates ranging from $220 to $510. A copy of my current CV and recent testimony is attached to this report as Appendix A.1 1 The views expressed herein are the views and opinions of the author and do not reflect or represent the vBNs d Charles River Associates or any of the organizations with which the author is affiliated. Page 1 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 62 of 73 PageID: 287 March 17, 2017 Charles Rh.er Associates 3. Materials Reviewed I reliewed the following materials in preparing this report: 2 • Complaint dated July 30, 2015; • July 15, 2016 report of James A. DiGabriele, Ph.D.; • December 30, 2016 report of James A. DiGabriele, Ph.D.; and • February 20, 2017 report of James A. DiGabriele, Ph.D. 4. DiGabriele Reports It is my understanding that in April 2014 Nissan started and announced the Regional Optimization Initiative (ROI) to better align its regional workforce with its business needs and the ROI's changes took effect on July 1, 2014, its implementation date. This process resulted in some positions being "re-graded" to a lower salary grade, other indiliduals moved to new positions, new markets or new locations, and others were either offered contractor positions, assigned a new job, asked to post for open positions or prolided severance packages, as well as other reorganization actilities. During this period, Nissan also examined whether there were any indiliduals (regional employees and others across the company) whose current salary exceeded the maximum of the salary grade to which their position was assigned. Nissan also examined its geographical pay differentials ("Geo Diff') across the company. For these "Over the Max" indiliduals, their salary was scheduled to be reduced to a level that would bring them to the maximum of the salary range for that grade and for those receiling Geo Diffs, the differential was either incorporated into the indilidual's base pay or eliminated. The ROI restructuring applied only to regional employees, whereas the "Over the Max" reductions and "Geo Diff' adjustments applied across the company. Dr. DiGabriele appears to combine the two distinct employment events of the ROI restructuring and "Over the Max" adjustment and concludes that there is support for the allegation that the ROI had a disparate impact on employees age 50 and over (February report, p. 9). However, Dr. DiGabriele prolides no statistical analyses to support a conclusion that either the ROI or the "Over the Max" reductions had a statistically significant adverse impact on those age 50 and over (or any other protected employee group). In fact, Dr. DiGabriele prolides no statistical analyses in either his December or February reports. 3 As a labor economist, I frequently model employment outcomes (i.e., hiring, promotion, termination, compensation, etc.) to determine whether the observed differences between groups of employees (i.e., men and women, minority and non-minority, etc.) could have occurred by chance through a neutral decision making process. These analyses are often cited as a basis for assessing whether there is statistical support, within an established degree of certainty, for an allegation of disparate impact. Dr. DiGabriele does not report this type of analysis in any of the reports for this matter, thus he has no foundation for determining 2 This report is based on the information available to rre as of Wlarch 17, 2017. Should addHional information becorre available it may be necessary to supplerrent or arrend this report. At trial I may rely upon docurrents that have been produced ortestirrony that has been given in this matter. In addition, I may prepare dem::mstrative exhibits for use in trial. 3Dr. DiGabriele's first report only calculates potential damages for rvt. ~Avoy assuning that a disparate irrpact has been established, thus is not addressed in this report. Page2 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 63 of 73 PageID: 288 March 17, 2017 Charles Ri;er Associates whether the employment actions associated with either ROI or "O;er the Max" show a disparate impact on those age 50 and o;er as stated in his reports (December report, p. 6; February report, p. 7 and 9). In order to test whether an employment practice had a disparate impact on a particular group of employees, it is necessary to measure the difference between what occunred to the employees as a result of the employment practice in question and what would ha;e occurred to them in the absence of any disparate impact. To do this properly, it Is necessary to establish a baseline counterfactual for what would be expected in the absence of a disparate impact, something Dr. DiGabriele did not do in his reports. Without this type of analysis one cannot determine whether one group of employees was impacted differently from another group of employees. Thus, Dr. DiGabriele proiAdes no statistical support for his conclusion regarding the disparate impact on workers age 50 and owr. Rather than proiAding any statistical analysis, Dr. DiGabriele repackages information proiAded by Nissan in a series of lists. This requires no specialized expertise, nor does it proiAde any means of assessing whether either the ROI or the "O;er the Max" decisions had a disparate impact on those age 50 and o;er, or any other group of employees. Dr. DiGabriele's lists cannot examine whether similarly situated employees under the age of 50 were impacted any differently from those listed. Without such a comparison, one cannot conclude whether there is statistical support for an allegation of disparate impact. 5. Concluding Remarks Dr. DiGabriele's conclusion that the information supports plaintiffs allegation that those age 50 and o;er were disparately impacted as a result of the ROI and/or "O;er the Max" salary reduction is based on no statistical analysis ofthe decision process. Instead his conclusions are based on a series of selected employee lists that are no more than repackaged information proiAded by Nissan. These lists proiAde no comparison to a similarly situated comparator group or "but for" outcome, and require no specialized expertise to create. As a result, Dr. DiGabriele's reports proiAde no foundation for his stated conclusion. Page 3 Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 64 of 73 PageID: 289 March 17, 2017 Charles River Associates APPENDIX A Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 65 of 73 PageID: 290 CD A Cha. rlcsR.ivcr I'll.. Assoc1arcs Matthew R. Thompson Vice President PhD, Economics Uniwrsity of North Carolina at Chapel Hill BA, Economics Central College Matthew Thompson, Vice President, is Practice Leader of CRA's Labor and Employment practice. Dr. Thompson specializes in empirical research, applying statistical techniques to the analysis of various issues including firm lewl employment decisions, government contracting programs, and the impact of proposed regulatory and legislative changes. In these endea~.t~rs Dr. Thompson assists clients with the collection, analysis, and production of various electronic and hard copy data sources. He also pro\Ades economic loss estimates for single plaintiff and class action cases and assists clients with the development of processes that proactively monitor employment decisions. Dr. Thompson works with attorneys and human resource professionals in analyzing issues concerning litle VII, Age Discrimination in Employment Act (ADEA), Fair Labor Standards Act (FLSA), and Office of Federal Contract Compliance Programs (OFCCP) audits. He has pro\Aded expert witness testimony in state and federal cases. In addition to his sole authored work, Dr. Thompson has teamed with leading academic researchers to pro\Ade in-depth policy related research. Dr. Thompson has presented employment discrimination issues to attorneys and human resource professionals at seminars on the use of statistics in employment litigation, and has been an iniAted speaker at North Shore Labor Counsel, New England Legal Foundation, Atlanta Bar Association, and JacksoniAIIe Industry Liaison Group events. Professional history 2007-Present 1997-2007 2003-2005 1994-1997 Vice President, Charles River Associates Principal/Research Economist, ERS Group Define and develop economic and statistical analyses of employment practices, such as compensation, promotion and termination, tailored to specific client needs and data requirements. Facilitate the identification, collection and organization of the data required for the analysis of the employment issue being examined. Create proactive methods for analyzing and re\Aewing proposed employment actions. Estimate potential economic losses associated with employment discrimination claims, wage and hour IAolations, and personal injury and wrongful death for indi\Aduals or classes of indiiAduals. Lead a team of employees including PhD economists, programmers and research assistants. Adjunct Professor, College of Social Science, Florida State University Instructor, Department of Economics, University of North Carolina at Chapel Hill Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 66 of 73 PageID: 291 Chartes River Associates Matthew Thompson Page 2 1994-1997 Research Assistant, Department of Economics and Carolina Population Center, University of North Carolina at Chapel Hill Assisted in the estimation and statistical analysis of various projects using Census, National Medical Expenditure Survey (NMES), and Industry datasets. Publications and research papers "Understanding Employment Data Used for EEO Disparity Analyses." Adverse Impact Analysis: Understanding Data, Statistics, and Risk, Morris, Scott and Eric Dunleavy (Editors), Routledge Taylor & Francis Group, New York and London (2017). "The Effect of Liling Wage Laws on Low-wage Workers and Low-income Families: What do we know now?" With Dalid Neumark and Leslie Kayle. /ZA Journal of Labor Policy, 1:11 (2012). "Estimating the Economic Impacts of Liling Wage Mandates Using Ex Ante Simulations, Longitudinal Estimates, and New Public and Administrative Data: Elidence for New York City." With Dalid Neumark, Francesco Brindisi, Leslie Kayle, and Clayton Reck. NBER Working Paper Series (Working Paper 18055), May 2012. "The Economic Impacts on New York City of the Proposed Liling Wage Mandate." With Marsha Courchane, Dalid Neumark, llmothy Riddiough, and Anthony Yezer. New York City Economic Development Corporation, 2011. "Report on Gainful Employment." With Jonathan Guryan. Career College Association, April 2, 2010. "Compensation Strategies in the Era of the Lilly Ledbetter Fair Pay Act." With Dalid Lamoreaux. Newsletter of the American Health La11¥9rs Association, May 2009. "The Lilly Ledbetter Fair Pay Act and Compensation Strategies." With Dalid Lamoreaux. Profiles in Diversity Journal, March/April 2009. "Companies Need to Take heed of New Fair Pay Act." With Kenneth Bello and Jennifer Belli, Bello Black & Welsh LLP and Dalid Lamoreaux, Chartes River Associates. New England In-house, March 2009. "Public Housing: A Hard Habit to Break? The Participation and Labor Supply Decisions of Public Housing Participants." PhD Dissertation, Department of Economics, University of North Carolina at Chapel Hill, 1997. Presentations and professional meetings "Developments Affecting Employers: Gender Wage Gap and 401 (k)/403(b) Litigation." Moderator, CRA New York Seminar Series, New York, NY, February 7, 2017. "How to Enhance Your Diversity & Inclusion Efforts through the Use of Metrics." lnlited Speaker, Big Bend SHRM, Tallahassee, FL. October 12, 2016. "Statistical Analysis in Employment Selection Matters." lnlited Speaker, North Shore Labor Counsel Meeting, Deerfield, IL, May 20, 2015. Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 67 of 73 PageID: 292 Charles River Associates Matthew Thompson Page 3 "Managing Employment Litigation in a Volatile Economy." lmited Speaker, New England Legal Foundation Board Meeting, Boston, MA, June 2, 2010. "EE0-1 ReiAsions and Information Technology Challenges." lniAted Speaker, JacksoniAile Industry Liaison Group, JacksoniAIIe, FL, May 15, 2006. "The Role of an Economist in Litigation." lniAted Speaker, Florida State Unil.ersity Master's of Economics Seminar, Tallahassee, FL, February 23, 2006. "Use, Misuse and Abuse of Experts and Their Testimony." lniAted Speaker, Atlanta Bar Association Continuing Legal Education, Atlanta, GA, March 19, 2004. "Commonly Used Statistical Techniques." ERS Group's seminar on Employ men! Discrimination: Economic and Statistical EIAdence. Spring 2002, Fall 2003, and Fall 2004. "Advanced Statistical Techniques: Compensation Analysis." ERS Group's seminar on Employment Discrimination: Economic and Statistical EIAdence. Fall 2002. Professional memberships o American Economic Association o American Bar Association Litigation related reports and declarations Josefa Gomez, et a/. v. Western Federal Credit Union: No. BC 595925; Superior Court of Califomia, County of Los Angeles. Sonnie Carlton, eta/. v. Western Federal Credit Union· No. BC 591974; Superior Court of Califomia, County of Los Angeles. Debbv DeLuca v Sirius XM Radio Inc.· No. 12 Civ. 8239 (TPG), United States District Court, Southern District of New York. Mark isha Gordon v Maxim Healthcare Setvices, Inc.: No. 2: 13-ov-07175, United States District Court, Eastem District of Pennsylvania. Kennedy Donohue, eta/. v. AMN SeiVices, LLC; No. 37-2014-00012605-CU-OE-CTL, Superior Court of Califomia, County of San Diego. Juan Martinez Maria Coronel, Elvira Moreno Castro eta/. v. Mann Packing Co., Inc.: No. M116476, Superior Court of California, County of Monterey. Yassine Baouch v. Werner Entemrises, Inc. d/b/a Werner Trucking and Drivers Management LLC: No. 8:12-CV-00408, United States District Court, District of Nebraska. Paul Willoughby, Phil/io Davis Jamie Steohenson et a/. v. Youth Villages, Inc.; No. 1: 13-cv-0391 0- SCJ, United States District Court, Northern District of Georgia, Atlanta DiiAsion. Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 68 of 73 PageID: 293 Charles River Associates Matthew Thompson Page 4 James Buser v. Eckerd Comoration d/b/a Rite Aid a subsidiarv of Rite Aid Comoration and Prudential Insurance Companv of America: No. 5:12-CV-755-FL, United States District Court, Eastern District of North Carolina, Western Dil.ision. Thomas Cramer eta/., v. Bank of America N.A. Bank of America Comoration; No. 12-CV-8681, United States District Court, Northern District of Illinois, Eastern Dil.ision. Semio Gutierrez, et al., v. California Commerce Club Inc.; No. BC360704, Superior Court of the . State of California, County of Los Angeles. Elzie Fuller Ill v. Edwin B. Stimoson, Inc.; No. 0: 11-c\Hl1574-CMA, United States District Court, Southern District of Florida, Fort Lauderdale Dil.ision. Eric Peters eta/., v. Wells Faroo Bank, N.A ; No. BC 429408, Superior Court of the State of California, County of Los Angeles. Daniel J. Schlick sup v. Catemillar Inc., et at.; No. 09-1208, United States District Court, Central District of Illinois, Peoria DMsion. Andrea Dennis, eta/., v. Spon-Divits Inc. et at: No. 1 :08-CV-0492, United States District Court, Northern District of Georgia. James Alfred Reed v. Geomia-Pacific Comoration; No. 3:05-CV-00615, United States District Court, Middle District of Florida, Jacksonl.ille Dil.ision. Delilah L. Co/bum v. Time Warner Cable of Southeastern Wisconsin. L.P. C/0 C T Comoration Svstem-Registered Agent; No. 05-C-0154, State of Wisconsin, Circuit Court, Milwaukee County. Tami Remien and Debra Fletcher v. EMC Comoration; No. 04 C 3727, United States District Court, Northern District of Illinois, Eastern Dil.ision (with Dr. Joan Haworth). Walter T.P. Andmw eta/. v. Atlantic Marine, Inc, and Alabama Shipvard, Inc; No. CV-03-0280- MJ-L, United States District Court, Southern District of Alabama, Southern Dil.ision. Deborah McDonald v. The A/pen House Limited Comoration A Foreign Comoration, D/B/A Adena Sprinos South and/or Adena Springs; No. 5:04-CV-00428-WTH-GRJ, United States District Court, Middle District of Florida, Ocala Dil.ision. Zita Wilenskyv. State of Florida, Eleventh Judicial Circuit of Florida acting bvand through the Administrative Office of the Courts; No. 03-21658-CIV-KING, United States District Court, Southern District of Florida. Betty Rominger v. Florida Department of Law Enforcement: No. 4:03CV14-RH, United States District Court, Northern District of Florida, Tallahassee Dil.ision. Keith Thompson v. Motorola Inc.; No.: 02-80490-CIV-MIDDLEBROOKS/VITUNAC, United States District Court, Southern District of Florida. Steven S. Anderson v. City of Scottsdale eta/.; No. CIC 01-1770-PHX MHX. United States District Court, District of Arizona. Davie Neesmith v. Perry Sawmill Corooration, eta/.; No. 4:01 CV 00520 WS/WCS, United States District Court, Northern District of Florida, Tallahassee Dil.ision. Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 69 of 73 PageID: 294 Charles River Associates Matthew Thompson Page 5 Miguel perez. eta/ v. Pavex Comoration; No. 8:01-CV-0069-T-27MSS, United States District Court, Middle District of Florida, Tampa Dilision (with Dr. Sharon Kelly). Laurie Bradley v. Florida Department of Transportation; No. 4:01cv342-RH, United States District Court, Northern District of Florida, Tallahassee Dilision. Marvin Fields and Dennis Walkerv. Abbott Laboratories; No. 97 C 3882, United States District Court, Northern District of Illinois, Eastern Dil.ision (with Dr. Joan Haworth). Frank LaRosa v. State of Florida, Florida Department of Environmental Protection; No. 98-3541, Circuit Court, Second Judicial Circuit, Leon County, Florida. Oral testimony Trial Testimony in Patrick Griffus, individuallv, and on behalf of all other persons similarly situated, v. Knight Transportation Inc.; No. 1006-08538, Circuit Court of the State of Oregon for the County of Multnomah. Deposition Testimony in Daniel J. Schlicksupv, Catemillar Inc. eta/.; No. 09-1208, United States District Court, Central District of Illinois, Peoria Dil.ision. Arbitration Testimony in Andrea Dennis, eta/. v. Spon-Divits, Inc., eta/. United States District Court, Northern District of Georgia. Case 3:15-cv-06824-MLC-DEA Document 30-2 Filed 04/21/17 Page 70 of 73 PageID: 295 Charles River Associates Matthew Thompson Page 6 Trial Testimony in Deborah A. McDonald v. The Aloen House Limited Comoration a foreian corpo- ration. dlb/a Adena Springs South and/or Adena Springs. U.S. District Court-Middle District of Florida, Ocala Di-.ision. Deposition Testimony in Deborah A McDonald v. The A/pen House Limited Comoration, a forejgn comoration d/b/a Adena Springs South and/or Adena Springs. U.S. District Court-Middle District of Florida, Ocala DMsion. Trial Testimony in BettyRominaer v. Florida Department of Law Enfon::ement. U.S. District Court- Northern District of Florida, Tallahassee Dil