Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 1 of 20

104. During her 2005 deposition, Brooks stated that, in addition to interview information, she also considered past performance of all of the candidates and specifically reviewed past performance evaluation rankings, as a way of considering their manager's opinion of them, as part of her decision making process. (Ex. 2, Brooks 2005 Depo, 91: 492:10, 147:10-22, 213:3-19.) 105. In his 1999 performance review, Green received a rating of 4 out of 5, "Consistently exceeds expectations," for his "leadership skills." In that review, Green was given a 5 ("far exceeds expectations: exceptional results"), the highest possible score, for "integrity" and 4's for "diversity, innovation, development" and 3's (consistently meets expectations: solid, value-added performance") for the remaining categories: building relationships, customer satisfaction, ownership, business competency and teamwork. (Ex. 52, Bates No. 0554-0557.) And, overall, Green received a "consistently meets expectation: solid, value-added performance" rating for all reviewed factors combined. (Ex. 52, Bates No. 0554-0557.) 106. Josie Padilla, the younger employee hired into the Mechanical Technician position instead of Green, was 39 years old when she was hired by Brooks to work at the Aurora Repair Center. (UF 50.) 107. Brooks conceded that she hired Padilla for a Mechanic Technician position even though it appeared that Padilla had not even applied for a Mechanical Service Technician, but rather, that Padilla had applied only for the Lawn & Garden Service Technician position. (Ex. 2, Brooks 2005 Depo, 82:14-83:22.) So, Green was not hired, while a younger employee who, as far as Brooks can recall, had not even expressed interest to Brooks in the position Green sought, was hired for that position. 108. In addition, Brooks claims in her 2005 deposition that she looked to employee's performance outside of their interviews to decide whom to hire. However, Padilla's last performance review has never been produced by Sears, although they have produced her personnel file, and it is presumed destroyed. Other documentation showing that Padilla's overall score for her last performance review was 3. Green's performance review was produced by Sears, and it shows that he received a score of 4 in the leadership category and a 3 overall. (Ex. 21, Bates No. 05251; Ex. 25 Bates Nos. 05252; Ex. 52, Bates Nos. 0554-0557.) 109. Further, Brooks' 2005 affidavit testimony that she did not hire Green in part because he commented to her that he had concerns about the redesign process is also contradicted by her previous deposition testimony that she thought some of the concerns Green raised to her about the redesign process were "legitimate" and that she knew he had 21

104. Admit that these facts are disputed, but deny that they are material. Ms. Brooks had historical performance information available during the group conference call. UF ¶¶ 9-10. 105. Admit that these facts are disputed, but deny that they are material. Mr. Green's past performance is not at issue. It is undisputed that during the interview process and thereafter he expressed hostility to the new repair process.

106. Admit that these facts are disputed, but deny that they are material. 107. Admit that these facts are disputed, but deny that they are material. Ms. Padilla's comparative advantages over Mr. Green are undisputed. UF ¶¶ 52-54.

108. Admit that these facts are disputed, but deny that they are material. Neither Mr. Green's nor Ms. Padilla's past performance is at issue. Rather, Mr. Green was not selected for the reasons set forth in Sears' Reply Brief Section II.

109. Denied. The fact that some of the concerns were legitimate does not contradict Ms. Brooks' testimony that he did not support the process. Discomfort by Padilla with the

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 2 of 20

been involved in the same type of assembly-line process that had not worked out in Thornton. (Ex. 2, Brooks 2005 Depo, 6 1:25-13.) Brooks also admitted that she does not know if Green realized that his alleged comments about the process would be counted as an "interview" or be a factor in determining whether he should be hired. (Ex. 2, Brooks 2005 Depo, 69:4-19.) Padilla indicated being uncomfortable about the redesign process in her interview, but Garcia did not expect that to preempt Padilla from having a shot at a position in Aurora. (Ex.7, Garcia Depo, 85:7-20.) 110. When asked about Green's ability to work on items outside of the mechanical area (such as lawn & garden or electrical), Brooks confirmed that she knew that Green could do almost anything. (Ex. 2, Brooks 2005 Depo, 71:13-28.) Brooks stated in her deposition that she was never told that one set of criteria was weighted differently than other criteria considered by the interviewers and that one would have to ask the interview team members to discover how criteria were weighted, if at all. (Ex. 2, Brooks 2005 Depo, 216:18-217:12.) Yet, now she claims she hired Padilla over Green because Padilla did better in two of the nine criteria areas given equal weight on the actual interview form. (Ex. 33, Bates No. 04185.) Accordingly, she gave Padilla's performance in those two criteria areas, "Change in Leadership" and "Team Skills" more weight than the other criteria areas. (Ex.34, Bates No. 04186.) Green performed far better in his technical interview than Padilla - 4.0 (Ex. 28, Bates No. 0539), versus 3.2 (Ex. 53, Bates No. 04186). Moreover, Green and Padilla may have had the same score in the "leadership interview" (2.9) depending on which circled scores are counted. (Ex. 27, Bates Nos. 01584 and Ex. 34, Bates Nos. 04185.) 111. Padilla's interview score sheet states that Steve Courier, the redesign team member that conducted Padilla's leadership interview, noted that Padilla stated among other things that she was "not especially excited but a bit apprehensive." (Ex. 35, Interview Scoring Sheet, Bates No. 0485.) Further, per Courier's notes, Padilla also told him about how, when she worked with co-workers, she "feels working around men harder, hurts teamwork, shrugs it off. People think she would be a `bitch' (her words)." (Ex. 36, Bates No. 04189.)

new process is not the same as resistance to and hostility toward that process. One expresses a level of unwillingness to work in Aurora facility, the other a concern about the ability to do the job.

110. Denied. The facts supporting the decision not to hire Mr. Green are undisputed and set forth in Sears' Reply Brief Section II. Ms. Brooks did not weigh one set of criteria differently.

112. Further, Bob Garcia, the team member that conducted Padilla's technical interview, chose to specifically not recommend her for hire after her interview, and, instead of marking the option of "offer job as technician," marked the option of "hold pending additional 22

111. The documents speak for themselves, but they do not create material issues of fact. Mr. Green and Ms. Padilla remain dissimilar. Padilla's discomfort with the new process is not the same as resistance to and hostility toward that process. One expresses a level of unwillingness to work in Aurora facility, the other expresses a concern about the ability to do the job. 112. Admit that these facts are disputed, but deny that they are material.

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 3 of 20

interviews." (Ex. 34, Interview Scoring Sheet, Bates No. 4186.) Further, he also noted in the attached question and answer section that "Josie (Padilla) is skeptical on whether process will work." (Ex.53, Bates No. 04186.) 113. Finally, the only "evidence" to support Sears' (and specifically Brooks') claim that Brooks "believed that Padilla was more willing to work on lawn mowers than Mr. Green," is Brooks' sworn affidavit statement. (UF 53.) No written documents, no notes of conversations, and no indications of conversations about this topic on the interview sheets was attached in support this allegation. 114. Sears claims that Green did not like working on lawn mowers (citing an opinion he gave years after his termination, in his deposition), but offers no particular details to support Brooks' general statement that Green told her that he did not like to work on lawn mowers. (UF 53.) Further, during her deposition, Brooks did not mention the alleged extraneous conversations at all, much less as a factor considered in deciding to hire or not hire Green and Padilla ­ but rather, stated only that she and the redesign team looked at Padilla's interview performance, work performance and prior mechanical experience. (Ex. 2, Brooks 2005 Depo, 81:9-17, 83:5-22.) Green denies making this statement. (Ex. 37, Green Affidavit, ¶ 1.; Ex. 11, Bates No. 0232-233) 115. Further, Brooks offered no explanation in her 2005 affidavit to explain why she hired 24-year-old Kris Dean over Green.

113. Denied. Mr. Green did not apply to work in Lawn & Garden and he testified that he did not prefer to work on lawnmowers. This corroborates Ms. Brooks' understanding of his preference. UF ¶ 53. 114. Denied. UF ¶ 53.

115. Denied. Mr. Dean scored 3.4 on his leadership interview, as compared to Mr. Green's 2.9. 116. Garcia, who conducted Green's technical interview, did not recall 116. Admit that these facts are much of his interview with Green (Ex. 7, Garcia Depo, 47:8-9), but disputed, but deny that they are was confident that the negative comments about Green's lack of material. leadership qualities written at the bottom of his interview sheet were, again, not his, and he did not know whose they were. (Ex. 28, Green Interview Assessment Form, Bates No. 0539, Ex. 7, Garcia Depo, 47:24-48:3.) The positive statements about Green's attitude, enthusiasm, and technical aptitude were his, and, while Garcia did not recall asking Green when he planned to retire, he testified that they must have discussed it since he made a notation about it in his interview notes. (Ex. 7, Garcia Depo, 47:24-48:3, 49:3-9; 51:9-13.) (Ex, 54 Bates No. 1582). Savard also denied writing any negative notes about Green on Garcia's interview sheet-so the notes remain unidentified. (Ex. 6, Savard Depo, 241:13-18) 117. Garcia was surprised Green did not receive a position at the 117. Admit that these facts are Aurora Repair Center. (Ex. 7, Garcia Depo, 53:8-10.) Garcia did not disputed, but deny that they are have any idea why Green was not offered an installer or helper job. He material. did not have reason to believe Green was not qualified for those jobs. 23

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 4 of 20

He also did not have a reason as to why Green was not offered a field technician job, or to believe Green was not qualified for one. (Ex. 7, Garcia Depo, 54:18-55:4.) 118. Garcia thought Green had strong electrical abilities. (Ex. 7, Garcia Depo, 65:7-9.)

118. Admit that these facts are disputed, but deny that they are material. 119. Garcia felt Green was willing to adapt to change. (Ex.7, Garcia 119. Admit that these facts are Depo, 68:20-24.) disputed, but deny that they are material. 120. Garcia also interviewed Padilla. His notes indicate that he had 120. Admit that these facts are concerns about Padilla's diagnostic skills. (Ex. 7, Garcia Depo, 59:2-9, disputed, but deny that they are 20-22.). Garcia noted in Bates No 04196 (Padilla's Interview notes material. As set forth above, it is with Garcia), "Josie is skeptical on whether the process will work." undisputed that Ms. Padilla had (Ex. 7, Garcia Depo, 60:10-13), that Padilla was not as confident with extensive experience repairing sewing electrical (Ex. 7, Garcia Depo, 60:2 1), and that "Josie's diagnostic machines and that Ms. Brooks knew skills are adequate but need refining." (Ex. 7, Garcia Depo, 62:5-7.) of that experience. 121. Garcia said he would have been surprised if Padilla got one of the 121. Admit that these facts are mechanical department positions and Green did not. (Ex. 7, Garcia disputed, but deny that they are Depo, 63:4-7.) Garcia would have been surprised if Padilla received a material. See response 120 above. mechanical position in lawn and garden over Green because Green seemed to be a lot more knowledgeable in mechanical. (Ex. 7, Garcia Depo, 63:17-64:2.) 122. Garcia had a short technical interview with Green and found him 122. Admit that these facts are technically qualified for a position in Aurora, and he did not have any disputed, but deny that they are reason to believe that the leadership skills necessary for the Aurora material. Mr. Green's technical Repair Center were different than both had been required to use in the abilities are not at issue. He was not past. (Ex. 7, Garcia Depo, 79:8-17.) hired for the undisputed reasons set forth in Sears' Reply Brief Section II. 123. Garcia found out who had not been selected by going to the 123. Admit that these facts are actual centers where some of the individuals worked and talking to disputed, but deny that they are them. (Ex. 7, Garcia Depo, 83:4-8.) material. 124. No one told Garcia that the Aurora Repair Center was going to 124. Admit that these facts are operate differently than Thornton. (Ex. 7, Garcia Depo, 98:1-12.) disputed, but deny that they are material. 125. Green also applied for the positions of Installer/Helper and 125. Admit that these facts are Artisan. Green applied for these additional positions, including the disputed, but deny that they are demoted position of Installer/Helper, because he wanted to stay material. It is undisputed that Green employed with Sears, to keep Sears' health coverage for his adult was not even considered for these disabled child. (Ex. 4, Green Depo, 123:12-24.) positions under a 10 percent rule applied in a non-discriminatory manner. 126. The duties of the Installer/Helper basically included repairing 126. Admit that these facts are 24

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 5 of 20

appliances at the direction of a technician, duties Green was clearly qualified to perform, and the duties of the Artisan position included diagnosing and repairing miscellaneous mechanical equipment, including sewing machines, again duties Green had been doing and was qualified to continue doing. (Ex. 11, Bates Nos. 0237, 0238 & 0241.) 127. Sears did not even identify the actual pay rate for either the Installer/Helper or Artisan position in support of its Motion. (UF 40.) 128. Sears did not identify which job Randy Shioshita allegedly applied for, and was denied placement in because of this rule, much less what that job paid. (UF 11.) Brooks previously testified that Shioshita had transferred to a sales position. (Ex.2, Brooks 2005 Depo, 101:6-9.) Brooks conceded that she did not know what the sales jobs paid that were available for rejected technicians to take as part of the redesign, and that the sales jobs may have paid an amount greater than ten percent of technicians' salaries, depending on the sales departments. (Ex. 2, Brooks 2005 Depo, 144:12-145:14.) Breithaupt stated that the sales position mentioned to her by Brooks as a possible alternative position paid either $12.50/hour or $3/hour plus commission, greater than a ten percent cut of her technician pay of $18/hour. (Ex. 12, Breithaupt Depo, 241:9-243:2; 262:18-263:1.) Per Sears' pay records, Shioshita was, in actuality, earning $18.23/hour as of November 22, 1999. (Ex. 13, Def. Bates No. 0011.) 129. Sears has not provided anything but Brooks' testimony that these two positions would have paid more than ten percent less than Green was earning, the rate of pay for the Artisan position was exactly the same as the rate of pay for the Mechanical Service Technician position Green also applied for (but Sears claims he did not receive because of his leadership skills, not the pay range). (Ex. 11, Bates No. 0228.) 130. Brooks' assertion that Sears had a "ten percent rule" was uniformly denied by every other manager and redesign team member deposed, including the Head of the Redesign Team, Dan Perry; Redesign Team Member, Nancy Savard; Redesign Team Member, Bob Garcia; Redesign Team Member, Ron Medford; and Redesign Team Member, Chuck Nash. (Ex. 6, Savard Depo, 76:18-77:2, 156:19157:4; Ex. 3, Perry Depo, 98:24-99:5; Ex.7, Garcia Depo, 85:25-86:5; Ex. 8, Medford Depo, 48:23-49:11; 49:18-50: 1; Ex. 9, Nash Depo, 56:9-57:4.) Garcia's understanding was that if an individual indicated they were willing to take an installer or helper position, and they were qualified, then they could then have that position. (Ex. 7, Garcia Depo, 86:10-15.) 131. Further, while Brooks and Fanning both testified under oath that 25

disputed, but deny that they are material. It is undisputed that Green was not even considered for these positions under a 10 percent rule applied in a non-discriminatory manner. 127. Denied. Sears stated that these jobs paid more than 10 percent less. UF ¶¶ 11 and 40. 128. These allegations do not dispute any of Sears' facts.

129. Denied. As noted above, Mr. Green was considered for the Artisan position.

130. Denied. See responses above concerning 10 percent rule.

131. Denied. See responses above

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 6 of 20

they thought this policy was in writing and was part of the E&M Factory Communication Guide, Brooks now concedes there is, after all, nothing in that extensive document indicating that this "ten percent rule" ever existed. (Ex. 2, Brooks 2005 Depo, 166:20-176:20; 164:317; Ex. 10, Fanning Depo, 137:8-14, 87:15-23, 138:17-19, 84:23-25, 85:19-22; Ex. 11, E&M Factory Communication Guide.) Ex. 10, Fanning Depo, 137:8-14, 87:15-23, 138:17-19, 84:23-25, 85:19-22. All other redesign members questioned about this policy denied that it existed. (Response to 48, incorporated herein.) 132. The only factual support provided by Sears for the proposition that the "ten percent rule" existed is the testimony of two employees Brooks and her friend Fanning - two individuals that had nothing to do with designing or drafting the policies to be used during the reorganization. (UF 40; Ex. 10, Fanning Depo, 84:23-25; 188:19-20.) Fanning conceded that, although she was the local Human Resource Generalist, and she was one of the interviewers for the internal candidates, she had no input into the decision of who was to be hired and really merely "took notes" during the conference call discussing the candidates. (Ex. 10, Fanning Depo, 40:4-12; 53:1-2.) All other redesign members questioned about this policy denied that it existed. Response to 48, incorporated herein. 133. Finally, when asked in her deposition if Green was ever told that he was not eligible for an installer position because of the salary cut issue, Brooks stated that she could not remember exactly, but she thought he would have been eligible, in contradiction to her other sworn statements that he would not have eligible. (Ex. 2, Brooks 2005 Depo, 181:1-9.) 134. Despite his experience and years of service with Sears, Brooks told Green, while terminating him, "You won't fit in with how we want to do things in Aurora." (Ex. 4, Green Depo, 232:1-13, 233:8-18). 135. Green had not wanted to retire from Sears, but had wanted to remain employed so he could provide health care coverage to his disabled son. (Ex. 4, Green Depo, 123:15-24). However, having no option to remain employed by Sears, he submitted his paperwork to receive early retirement. (Ex. 4, Green Depo, 243:10-15). 136. Brooks concedes she never offered Green the position of Field Repair Technician. (DF 48.) Sears has presented no evidence to rebut his statement that he would have taken it if offered to him. (Ex.4, Green Depo, 167:17-168:1, 273:10-274:6). Further, it was a position he was qualified for as he had previously worked in that position for 22 years. (Ex. 4, Green Depo, 12:12-22, 28:22-29/7, 34:1-3.) 137. While Sears now claims that Brooks, Fanning and Mufic had a 26

concerning 10 percent rule.

132. Denied. See responses above concerning 10 percent rule.

133. Denied. This mischaracterizes Ms. Brooks' testimony. She said she thought he would be told the reason for his ineligibility, not that she thought he would be eligible. 134. Admit that this is a disputed fact, but deny that it is material. As set forth in Sears Reply Brief Section III, this is not an agist comment. 135. Admit that this is a disputed fact, but deny that it is material. See Sears' Reply Brief Section II. 136. Admit that this is a disputed fact, but deny that it is material. See Sears' Reply Brief Section II.

137. Admit that this is a disputed

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 7 of 20

good faith belief that Green was physically unable to do that job, and hence, insinuate that that is the reason why it was not offered to him (UF 48), Sears' prior statements to the EEOC Investigator about Green and his fellow older employees' terminations are silent of this "belief" concerning Green, but explicit about "believing" that three of the other older workers had medical reasons that excused them from taking available field technician positions. (Ex. 19, Sears' Wentland Position Statement, pg. 4; Ex. 22, Sears' Breithaupt Position Statement, pg. 4; Ex. 32, Sears' Stear Position Statement, p. 5). Specifically, while Sears utilized its knowledge of medical conditions of other employees as justification for not placing those employees in Field Service Technician position, Sears never contended to the EEOC Investigator that Green had (1) been offered that position; (2) that he declined that position for medical reasons; or even (3) the position was not offered to him because in the past Sears thought he was medically unable to do it. Id. 138. Also, as noted above in response to DF 48, Brooks, Fanning and Mufic, the three allegedly "responsible for hiring" Field Technicians, all gave contradictory testimony concerning their collective "belief" that Green that unable to work in the field as a Site Technician. For example, Brooks testified that Fanning and Frank offered Green the field position. (Ex. 2, Brooks 2005 Depo, 67:8-15.) Brooks also confirmed that Green was required to secure a doctor's note indicating he could not work in the field to get the severance package. (Ex.2, Brooks 2005 Depo, 67:16-25; 68:4-8.) Fanning testified that a note was required, as well, for Green to be eligible for the severance package. (Ex. 10, Fanning Depo, 59:2-9.) Fanning also testified that she actually saw a doctor's note excusing Green from the position, and that some document excusing Green from the position existed. (Ex. 10, Fanning Depo, 59:18-60:4, 64:22-65:1, 63:5-9.) 139. Green never provided a doctor's note. (Ex. 4, Green Depo, 166:23-167:1; 168:16-22.) Nor did he request one from his doctor. (Ex. 4, Green Depo, 168:16-22.) He wanted the job and was able to work in that position. (Ex. 4, Green Depo, 167:17-19; 170:13-17 1:2.) 140. Sears concedes it received doctor's notes from Breithaupt and Wentland from the Site Technician. (Ex. 19, Sears' Wentland Position Statement, pg. 4; Ex. 22, Sears' Breithaupt Position Statement, pg. 4.) In accord, Wentland and Breithaupt testified that when they told Brooks that they had a medical condition prohibiting them from taking the Field Technician positions offered to them, they were both told that their statements were not enough and that they had to produce a note from their doctor justifying the reason they were declining the offer if they wanted to receive the severance. (Ex. 5, Wentland Depo, 122:627

fact, but deny that it is material. See Sears' Reply Brief Section II.

138. Admit that there is a dispute about whether Mr. Green could work in the field, but deny that it is material. See Sears' Reply Brief Section II. These facts confirm Sears' belief that Mr. Green could not work in the field.

139. Admit that this is a disputed fact, but deny that it is material. See Sears' Reply Brief Section II. 140. Admit that this is a disputed fact, but deny that it is material. These facts tend to confirm Sears' position that it would have hired Mr. Green if he had been interested in and able to perform a field position.

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 8 of 20

123:17, 126:9-20; Ex.12, Breithaupt Depo, 158:15-18; 160:14-161:2.) 141. When Green asked about getting a Field Technician position, Fanning told him that he didn't need to worry about it, that Sears was going to retire him and give him the package. (Ex. 4, Green Depo, 165:11-19.) 142. Sears also asserts in its UF 48 that "Medical problems had previously prevented Mr. Green from working in the field," citing Green's testimony and medical records related to a back injury he suffered almost 15 years before it chose not offer him a field condition. (Ex. 4, Green Depo, 34:1-34:21.) Specifically, in approximately 1984, after working in the field as a technician for approximately 22 years, Green asked if he could work in the shop for six to eight months to heal his back. However, when he was physically able to work in the field again, he asked to return to his position as a Field Technician. Id. Sears has not produced any evidence that Brooks, Mufic or Fanning had personal knowledge of this event or was aware of this event prior to his termination. 143. During the interview process for positions at the Aurora Repair Center, no one talked to Peterson about his shop technicians work performance. (Ex. 47, Peterson Depo, 75:15-19.) As their supervisor, Peterson thought this was odd that they did not get his input. He had only been there a short time, but if he had been their supervisor for a long period of time, he thought he should have been consulted during the interview process. (Ex. 47, Peterson Depo, 76:19-24; 76:25-77:21; 78:1-9.) 144. Brooks also never spoke with supervisor Figueroa about his opinion of his employees' performance before she made her decision. (Ex. 18, Figueroa Depo, 149:22-25.) In fact, no one associated with the hiring at Aurora Repair Center, including Brooks, ever spoke with Figueroa about his employees' work performance. (Ex. 18, Figueroa Depo, 150:23-152:9.) 145. Breithaupt was forty-eight (48) years old and had been employed by Sears for twenty-six (26) years when the redesign occurred in 2000. (Ex. 38, Breithaupt Charge of Discrimination, para. 1.) During her numerous years of dedicated service for Sears, Breithaupt received numerous accolades for her performance and was extremely knowledgeable in the repair of numerous machines. (Ex. 38, Breithaupt Charge of Discrimination, para. 2;Ex. 55, Breithaupt Awards). These awards include recognition as part of the "Number 1 Service Team" in March 1987, Certificates of Achievement in 1987 and 1988, and Service Excellence Awards in August and September of 1991 and February of 1992. (Ex. 55, Breithaupt Awards). In addition, Breithaupt has numerous certificates showing completion of several 28

141. Admit that this is a disputed fact, but deny that it is material. See Sears' Reply Brief Section II. 142. Admit that this is a disputed fact, but deny that it is material. See Sears' Reply Brief Section II.

143. Admit that this is a disputed fact, but deny that it is material. The reasons for not hiring Mr. Green are undisputed and set forth in Sears' Reply Brief Section II.

144. Admit that this is a disputed fact, but deny that it is material. The reasons for not hiring Mr. Green are undisputed and set forth in Sears' Reply Brief Section II. 145. Admit that these are disputed facts, but deny that they are material. Ms. Breithaupt's past performance is not at issue. The reasons for not hiring Ms. Breithaupt are undisputed and set forth in Sears' Reply Brief Section II.

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 9 of 20

courses in repair of different machines. (Ex. 55, Breithaupt Awards). 146. Breithaupt applied for an Electronics Technician position at the Aurora Repair Center. (Ex. 38, Breithaupt Charge of Discrimination, para. 1). 147. Sears first told the EEOC investigator investigating Breithaupt's charge of discrimination that it made a legitimate business decision not to offer Breithaupt a position at the Aurora Repair Center because of her "demonstrated lack of basic technical diagnostic and troubleshooting skills." (Ex. 22, Sears' Breithaupt Position Statement, pg. 4). Sears' position then was that Breithaupt was given a "technical interview designed to demonstrate her abilities to diagnose and repair appliances" and that Breithaupt received low scores on basic technical diagnostic and troubleshooting skills and, for that reason, she was not offered a position at the Aurora Repair Center. (Ex. 22, Sears' Breithaupt Position Statement, pg. 4). 148. When Sears interviewed Breithaupt for the position at the Aurora Repair Center, they did not perform a "technical interview," such as they would lead one to believe. In reality, they asked her two questions, neither of which were a representation of Breithaupt's technical ability. (Ex. 12, Breithaupt Depo, 106:12-107:14, 109:25110:2.) She was first asked how to replace a picture tube in a television. (Ex. 12, Breithaupt Depo, 106:18-21.) Breithaupt replied, based upon the techniques and equipment she had in her current position at Sears. (Ex. 12, Breithaupt Depo, 106:18-25.) When asked about another technique, Breithaupt admitted that she had some experience with the alternate technique, but it was her experience that the first technique she described actually worked better and was faster. (Ex. 12, Breithaupt Depo, 107:1-109:17.) (A fact yet to be disputed by Sears.) The second question asked Breithaupt to view two diagrams and respond as to the voltage in each diagram at a certain point. (Ex. 12, Breithaupt Depo, 110:7-110:13.) Breithaupt initially reversed her answers, but immediately corrected her response, thereby ultimately giving the correct response. (Ex. 12, Breithaupt Depo, 110:14-25, 115:7-14.) Those two questions were the extent of Sears' "technical interview" that supposedly decided the fate of Breithaupt's 26-year career with Sears. Garcia testified that his only role in the redesign process was to evaluate electrical skills (Ex. 7, Garcia Depo, 32:2333:3), yet Breithaupt's technical interview was conducted by Currier. (Ex. 56, Sears' Bates No. 953; Ex. 12, Breithaupt Depo, 103:10-12.) 149. Perry stated that all long-term technicians were presumed technically sound and, thus, the technical interviews for long-term technicians were almost perfunctory. (Ex. 3, Perry Depo, 38:15-39:5.) 29

146. Admitted. 147. Sears denies any inconsistency in its positions, which are written and speak for themselves. See Sears' Reply Brief Section II.

148. Sears denies that it failed to conduct a technical interview. Ms. Breithaupt's own testimony confirms that she was called in for technical questioning. She does not dispute that she was evaluated on a score sheet or that she received a score of 2.7 ­ below acceptable. Nor does she dispute that this unacceptable rating was conveyed during a group discussion about her to Ms. Brooks. She may dispute that the interview adequately measured her competence, but she cannot dispute the dispostive facts that the negative report was conveyed to the decision maker. UF ¶¶ 32-38.

149. Admit that these are disputed facts, but deny that they are material. Mr. Currier's report, not Mr. Perry's is what affected Ms. Brooks. UF ¶ 32.

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 10 of 20

150. When Breithaupt was not offered any of the Electronics Technician positions (Ex. 38, Breithaupt Charge of Discrimination, para. 1), the only explanation given to Breithaupt by Brooks for not receiving her prior position or a comparable position was that she "would not fit in" at the Aurora Repair Center. (Ex. 38, Breithaupt Charge of Discrimination, para. 1;Ex. 12, Breithaupt Depo, 126:1421.) 151. Instead, she was offered a position that Sears management knew she could not do -- a position as a Field Technician that would be too much stress on her bad knee. (Ex. 38, Breithaupt Charge of Discrimination, para. 1; Ex. 14, Breithaupt Affidavit, para. 1.2; Ex. 12, Breithaupt Depo, 130: 11-21; Ex. 2, Brooks 2005 Depo, 130: 13-21.) Breithaupt has arthritis and calcium deposits on her left knee. (Ex. 14, Breithaupt Affidavit, para. 1,2; Ex.12, Breithaupt Depo, 130:11-21, 132:21-25.) She has had prior surgery on the knee and, in addition to prescription anti-inflammatory medication, Breithaupt receives cortisone shots. (Ex. 14, Breithaupt Affidavit, para. 1,2.) Sears was well aware of her knee problems when it offered her the outside technician position. (Ex.38, Breithaupt Charge of Discrimination, para. 2; Ex. 14, Breithaupt Affidavit, para. 3.) Nonetheless, she was required to supply Sears with a note from her doctor explaining why she could not physically accept the outside technician position. (Ex. 12, Breithaupt Depo, 158:7-23.) (Ex. 10, Fanning Depo, 70:17-21; Ex. 31, Mufic Depo, 105:20-25.) 152. In her 2005 deposition, Brooks first testified that she did not hire Breithaupt based on the hearsay evidence that Currier allegedly told her that Breithaupt had answered some of the technical questions incorrectly and because Brooks had "better candidates to fill the position." (Ex. 2, Brooks 2005 Depo, 109:24-110: 17, 111:17-112:2.) She then later added that Breithaupt's alleged low production numbers were another reason she chose not to hire Breithaupt and that she specifically looked at Breithaupt's past performance, in making the decision not to hire her, and determined that her production levels were not as high as she would have liked. (Ex. 2, Brooks 2005 Depo, 114:19-115:15.) Again, in her 2005 affidavit, Brooks makes no mention of Breithaupt's past performance in her current explanation of why Breithaupt was not hired. (UF 34.) 153. Sears advertised outside of its organization for technicians contemporaneously with notifying its own employees about the redesign. (Ex. 6, Savard Depo, 198-200.) It was Sears' practice to interview outside candidates contemporaneously with inside candidates during this type of reorganization. (Ex. 6, Savard Depo, 199:20-200:4; Ex. 9, Nash Depo, 47:18-23.) Accordingly, inside 30

150. Admit that these are disputed facts, but deny that they are material. See response above concerning "fit in" comment.

151. Sears denies that Ms. Breithaupt has presented any evidence that the company knew she could not do the jobs offered. In any event, any factual dispute on this point is immaterial.

152. Sears denies any inconsistency for the reasons set forth in Sears' Reply Brief Section II.

153. Denied. Sears went through a two-step hiring process, giving first preference to its existing technicians. This is undisputed. UF ¶ 12. Whether or not Sears advertised contemporaneously does not dispute

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 11 of 20

candidates, such as Breithaupt, were competing with outside candidates for the same Service Technician positions. 154. As noted above, Breithaupt had been employed by Sears for 26 years, was trained and certified by Sears to work on electrical appliances and had received many accolades, awards and positive performance reviews. (Exh. 38, Breithaupt Charge of Discrimination; Ex. 55, Breithaupt Awards.) Despite her experience as loyal, longterm, employee, Brooks hired Blakenship for the television repair Electronic Technician position, presumably the "better candidate" to fill the position. (UF 37; Ex. 23, Bates No. 03180.) 155. Blankenship was not employed by Sears when he was hired, and he scored in the lowest possible ranking category on his technical exam when he applied for the same Electronic Service Technician position Breithaupt was applying for. (Ex. 23, Blankenship Scoring Sheet, Sears Bates No. 03180 (emphasis in the original).) As outlined below, he scored in the "POOR RISK" category for television repair, the function he would performing in Aurora. (Ex. 23, Blankenship Scoring Sheet, Sears Bates No. 03180.) Yet, he was offered the television repair position over Breithaupt. (Ex. 2, Brooks 2005 Depo, 116:19-117:3.)

that two-step process. 154. Admit that these are disputed facts, but deny that they are material. As set forth in Sears' Reply Brief Section II, hiring Mr. Blankenship does not create any factual issues. If anything, it confirms Ms. Brooks' reliance on recommendations of experts. 155. Denied. Plaintiffs mischaracterize the record. Mr. Blankenship's scores speak for themselves and are not accurately characterized here. It is undisputed that Mr. Currier evaluated Ms. Breithaupt negatively, and that Ms. Ballou recommended Mr. Blankenship. UF ¶ 33-34; Brooks 60:25-61:6; 117:25-118:2; 131:4-7. It is similarly undisputed that Ms. Brooks relied on these respective recommendations. Id. 156. Sears incorporates its response to 155.

156. As noted on Blankenship's Service Technician Test Series, he was ranked in the lowest category - "POOR RISK" "Low Level of Knowledge" for his TV/Projection skills and barely ranked in the "DESIRED SCORING RANGE" "Acceptable Level of Knowledge" with a score of 36 out of a possible 63 total points for his knowledge of Basic/Digital Electronics. (Ex. 23, Bates No. 03180.) 157. When shown Blankenship's poor television repair test score, Brooks first testified that she had not recalled previously seeing Blankenship's poor score sheet and that another Sears' employee, Virginia Ballou, actually made the final decision to hire James Blankenship without telling Brooks, to Brooks' recollection, that he had done poorly on technical and team skills. (Ex. 2, Brooks 2005 Depo, 129:16-13 1:10; Ex. 23, Bates No. 03180.) But when confronted with her own notes from interviewing him for leadership skills, she conceded that she hired him and conceded that even she rated him as only "marginal" on "initiative/sense of urgency" and "interests/expectations," (Ex. 2, Brooks 2005 Depo, 131:15-23.) 158. Then, at a later point in her 2005 deposition, Brooks contradicted her testimony above that Breithaupt was not offered a position because Brooks had "better candidates" than her, by answering when asked if 31

157. Admit that these are disputed facts, but deny that they are material.

158. Sears incorporates its response to 155.

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 12 of 20

she believed that Blankenship was a better electronics technician then Breithaupt, "I didn't compare the two." (Ex. 2, Brooks 2005 Depo, 136:20-25.) 159. Brooks concedes that Breithaupt was then offered the position of Field Technician (UF 35), which required "similar" technical repair skills as the electronic technician position she was denied at the Aurora Repair Center because of her lack of the same skill set. (Ex. 2, Brooks 2005 Depo, 157:1-11.)

160. Plaintiff Wentland was fifty-three (53) years old and had worked for Sears for thirty-five (35) years when he was terminated on May 5, 2000. (Ex. 38, Wentland Charge of Discrimination, para. 1.) 161. Figueroa was Wentland's supervisor on February 1, 1998. He gave him a performance evaluation around February 1998. (Ex. 18, Figueroa Depo, 56:22-57:19.) 162. Sears has not produced Wentland's last documented performance review (the 1998 review or the 1999), but it appears form a printed computer screen page produced by Sears that Wentland's score on last documented performance review given by his supervisor, Figueroa, was a 4.4, described as "Consistently Exceeds Expectations." (Ex. 13, Computer Screen printout, Sears Bates No. 01011; Ex. 18, Figueroa Depo, 56:18-58:16.) In review of what appears to be the only documents reflecting the last performance ratings given to Wentland, Lang and Schley, Wentland received the highest score out of them all, with a 4.4 rating on a scale of 1-5. (Ex. 18, Figueroa Depo, 64:18-25.) Figueroa stated that he ranked Wentland as the best at the time of Wentland's 1998 performance evaluation. (Ex. 18, Figueroa Depo, 86:17-87:8.) Figueroa said his top three Lawn & Garden Shop Technicians in 2000 were Wentland, John Trujillo and George Lang. (Ex. 18, Figueroa Depo, 96:12-14.) 163. Figueroa's impression of Wentland as an employee was that he was a good technician who in general worked well and was able to repair the items needed to be repaired. He liked him and socialized with him outside of work. He would have called him a friend between 1997 and 2000. Figueroa has the opportunity to observe and evaluate Wentland's work performance and thought he was a good technician; Wentland was quite familiar with just about everything that would 32

159. Denied. Plaintiffs again mischaracterize the record. As set forth in Sears' Reply Brief Section III, the record is that field technicians required a lower skill level and that Ms. Breithaupt was not offered an electronics field technician position in any event. Rather, the only available positions were to repair cooking and laundry appliances. Sears was offering training if necessary. Def's Ex. W to Sears' Reply Brief. 160. Admitted. 161. Admitted. 162. Admit that these are disputed facts, but deny that they are material. Mr. Wentland's past performance is not at issue. He was not offered a position because he said he did not want the job. UF ¶ 26. See also discussion in Sears' Reply Brief Section II.

163. Sears incorporates its response to 162.

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 13 of 20

come into the Lawn and Garden Shop for repair. He put in his time and did what he was supposed to do during that period of time. (Ex. 18, Figueroa Depo, 39:24-41:7.) 164. Figueroa considered Wentland the senior Lawn & Garden Technician. As the senior person, Figueroa looked to Wentland to keep everything running smoothly since Figueroa could not be there all the time. When Figueroa had a question about a particular operation or Sears process, since Wentland had been around so long, Figueroa would ask him, and Wentland would generally have an answer for him. (Ex. 18, Figueroa Depo, 42:3-25.) 165. Further, Figueroa found Wentland enthusiastic and a good team player. (Ex. 18, Figueroa Depo, 44:20-45:8.) Wentland was looked to as a source for the more difficult jobs and he handled this responsibility as it came to him. (Ex. 18, Figueroa Depo, 50:21-51:9.) Figueroa would ask questions regarding repair and routines of repair since the job was new to him. He found Wentland helpful and a good communicator. (Ex. 18, Figueroa Depo, 44:20-45:3.) 166. Garcia knew Wentland often received the difficult items and had a very good reputation as far as his ability to fix them. (Ex. 7, Garcia Depo, 28:18-21, 22:2-5.) Brooks admitted she knew Wentland received the more difficult repair jobs, a fact that would have interfered with or lowered his production numbers. (Ex. 2. Brooks 2005 Depo, 76:20-77:23.) Based on the scores given, Garcia thought Wentland was technically competent to work at the Aurora Service Center. (Ex.7, Garcia Depo, 70:2-5.) 167. It was fairly obvious to Figueroa that Wentland was the senior technician. Others were a lot less experienced and gravitated toward Wentland as the senior technician. (Ex. 18, Figueroa Depo, 136:22137:7.) 168. Helpers and installers were employed by Sears under Figueroa's Lawn & Garden Shop to work underneath shop technicians. Helpers and installers did not have the expertise of shop technicians. Sears would hire helpers and installers from Labor Ready on a seasonal basis to assist with repairs with lawn mowers, for example. (Ex. 18, Figueroa Depo, 45:10-25.) 169. Wentland worked full-time at Thornton, was the senior technician and engaged in supervision of the Labor Ready individuals on a regular basis. (Ex. 18, Figueroa Depo, 66:6-25.) Figueroa said, on a practical level, Wentland supervised the installers and helpers that were there for a season. (Ex.18, Figueroa Depo, 71:6-9.) 170. Wentland would provide training to the helpers and installers regarding their duties. As the technician, Wentland would diagnose and repair, and the installer would install parts to complete the repair. 33

164. Sears incorporates its response to 162.

165. Sears incorporates its response to 162.

166. Sears incorporates its response to 162.

167. Sears incorporates its response to 162. 168. Admit that these are disputed facts, but deny that they are material.

169. Admit that these are disputed facts, but deny that they are material.

170. Sears incorporates its response to 162.

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 14 of 20

For example, if it was determined that a lawn mower needed a blade and spark plugs, the technician would diagnose the problem and determine what was needed, and the installer would put in the spark plug in and put on the blade. The technician would diagnose if a part was needed and tell the installer to get the parts and put them on the machine. (Ex. 18, Figueroa Depo, 7 1:24-72:9.) Figueroa had the opportunity to review Wentland supervising installers and found his performance adequate and felt Wentland was a good trainer for this. (Ex.18, Figueroa Depo, 74:22-75:13.) Perry said it would be expected that Wentland would train. (Ex. 3, Perry Depo, 75:14-18.) 171. Wentland applied for a Lawn & Garden Service Technician position within the new Aurora Repair Center. (Ex. 5, Wentland Depo, 96:18-98:12.) 172. In Wentland's technical interview, Garcia noted in his interview notes that Wentland was planning to retire within the next year and a half although now Garcia states he is unsure why he wrote that down. (Ex. 7, Garcia Depo, 71:22-25, 73:17-18.) Garcia interviewed Wentland for a Lawn & Garden Technician position, but Garcia did not feel he would be qualified to interview people on lawn and garden skills, and he did not have much experience with lawn and garden. (Ex. 7, Garcia Depo, 35:7-9, 11, 13-14.) 173. Garcia had a short technical interview with Wentland and found him technically qualified for a position in Aurora. Garcia did not have any reason to believe that the leadership skills necessary for the Aurora Repair Center were different than had been required in the past. (Ex. 7, Garcia Depo, 79:8-17.) Garcia had in his interview notes that Carol Dobbins had specifically asked for the buyout. (Ex.7, Garcia Depo, 84:14-17.) He did not have this in his notes regarding Wentland. (Ex.7, Garcia Depo, 84: 19-20.) 174. Wentland was not offered a position at the new Aurora Repair Center. Instead, Sears offered Wentland a Field Technician position, a position that Sears' management knew Wentland could not perform due to the limitations caused by his high blood pressure resulting in recurring dizzy spells. (Ex. 15, Wentland Affidavit, para. 2.) Wentland's doctor supported the fact that Wentland's high blood pressure caused recurring dizzy spells. (Ex. 15, Wentland Affidavit, para. 2; Ex. 5, Wentland Depo, 86:20-87:2; 89:25-90:8; 111/17-19; Ex. 10, Fanning Depo, 72:20-23.) Wentland was then not offered any alternative other positions by Sears and was terminated. (Ex. 5, Wentland Depo, 84:25-85:6, 85:10-15, 120:17-121:14; Ex. 31, Mufic Depo, 89:15-19.) 175. Sears now claims that Wentland told one of his interviewers, Perry, that he "did not want a job and that he wanted to retire rather 34

171. Admit that these are disputed facts, but deny that they are material. 172. Admit that these are disputed facts, but deny that they are material. As set forth in Sears' Reply Brief Section III, these notes do not raise material issue of fact.

173. Admit that these are disputed facts, but deny that they are material. Mr. Garcia did the technical interview of Mr. Wentland and there was no reason to note his disinterest in working at the new facility. 174. Admit that these are disputed facts, but deny that they are material.

175. Wentland does not dispute the dispositive fact. Nor can he, based on

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 15 of 20

than take a position at the new Aurora facility." UF 20 (emphasis added.) (Ex. 5, Wentland Depo, 84:12-16.) It is undisputed however, that Wentland was not even eligible for retirement at the time of the redesign process because he was too young to retire. (Ex. 5, Wentland Depo, 38:7-16, 84:17-24.) 176. Moreover, as noted Plaintiffs Response to UF 26, (incorporated herein), there a number of other discrepancies in Brooks' recent explanation for Wentland's non-hire. For example, while Brooks now claims that the decision to terminate Wentland was based on "his attitude toward the new process, his statements that he did not want the job, his indications that he wanted a severance package, and the resulting two `no offer' recommendations from his interviews," Sears' written statement to the EEOC investigator claims that, based on Wentland's negative attitude toward the entire strategy of the new facility and his lack of teamwork and leadership skills, the redesign team decided not to offer him a position at the Aurora Repair Center. (Ex. 19, Sears' Wentland Position Statement, pg. 4). 177. Further, in her deposition in 2005, Brooks claimed even more reasons for not selecting him for a position, including his past work performance. Specifically, Brooks testified that she did not argue in support of keeping Wentland because, considering his "previous performance" in completing repairs he was not the "right person" for the redesign process. (Ex. 2, Brooks 2005 Depo, 73:4-25.) She testified she came to this conclusion by allegedly pulling production numbers from the Sears computer system - information clearly outside of any information conveyed to her by the interviewers. (Ex. 2, Brooks 2005 Depo, 73:3-75:25.) Notably, when asked in her 2005 deposition why she did not hire Wentland, Brooks never stated that she did not hire him because (1) he had told one of the interviewers that he did not want to work and only wanted to retire; or (2) that he told one of the interviewers that he wanted the "severance package" (Ex.2, Brooks 2005 Depo, 73:4-78:22). However, she said she knew at the time she made the decision that Wentland had told one of the interviewers that he had raised the issue of "retirement." (Ex. 2, Brooks 2005 Depo, 206:24-207:12.) 178. Garcia did not remember Wentland saying that he was unwilling to work in Aurora, just that he would be uncomfortable because of the process they used. (Ex. 7, Garcia Depo, 85:7-20.) Padilla had indicated being uncomfortable, but Garcia didn't expect that to preempt Padilla from having a shot at a position in Aurora. (Ex. 7, Garcia Depo, 85:720.) 179. Further, there is another discrepancy. While Perry alleges that Wentland told him he did not want the job because he wanted to 35

his own deposition testimony that he does not remember anything about his conversation with Perry. UF ¶ 20. 176. Denied. For the reasons set forth in Sears' Reply Brief Section II, the company's reasons have been consistent throughout.

177. Denied. Ms. Brooks never claimed that Mr. Green's past performance was a reason for not selecting him. Ms. Brooks was asked in her deposition why she did not fight for Mr. Green's selection, notwithstanding his stated desire not to work in Aurora. Her response was, in part, that his production figures could have been better. Thus, Plaintiffs grossly mischaracterize Ms. Brooks' testimony in an effort to create an issue here.

178. Admit that these are disputed facts, but deny that they are material. See Sears' Reply Brief Section II.

179. Denied. There is no discrepancy because all are true. As noted by

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 16 of 20

"retire," Brooks now claims that she decided in part not to hire Wentland because Wentland had allegedly mentioned in the interviews he wanted "a severance package." UF 26. While Sears first told the EEOC Investigator that Wentland was not hired because he was "not interested in [the] team concept" and that "he would not be happy at the [new facility]." (Ex. 19, Sears' Wentland Position Statement, pg. 4.)

Plaintiffs' own references, Mr. Wentland wanted a severance package and he wanted to retire. In order to get that, he told his interviewers words to the effect that he did not want the job, i.e., that he would not be interested in the team concept and would not be happy at the new facility. 180. With regard to the topic of retirement, during Wentland's 180. Admit that these are disputed interview, Perry stated that it would have been he who would have facts, but deny that they are material. raised the retirement issue in the conversation, and that he would have If anything, Plaintiffs' version of these raised the retirement issue because, in Perry's opinion, it would have facts corroborates Sears' reason for been an inhibitor to Wentland being successful in the new shop. (Ex. 3, not hiring Mr. Wentland. He said he Perry Depo, 81:2-4, 18-20.) wanted to retire and was not interested in working at the new facility, an attitude that clearly would have been an inhibitor to his success. 181. Other than Perry's recollection that Wentland indicated that he 181. Admit that these are disputed wanted the buyout, there was no other reason why he thought he might facts, but deny that they are material. not have the necessary leadership skills or abilities required for the redesign. In fact, Perry found Wentland to be personable, and he had no doubt about his skill. Any image he had about Phil was positive. There was nothing negative in Wentland's profile to his recollection. (Ex. 3, Perry Depo, 85:20-86:6.) Perry also conceded that the interview process is kind of a subjective decision at the end of the day. His assessment related more to the leadership assessment of the process because determining leadership criteria is in and of itself more subjective than figuring out whether someone can fix a machine. (Ex. 3, Perry Depo, 88:23-89:10.) 182. It should be noted that Wentland talked to Figueroa about his 182. Admit that these are disputed need to stay in the Denver area in order to take care of his father during facts, but deny that they are material. that time period. (Ex. 18, Figueroa Depo, 120:9-12.) Wentland told It is undisputed that Mr. Wentland did Figeruoa he was living with his father and taking care of him, and that tell Figueroa that he wanted to take the he felt tied to that responsibility until his father passed away. (Ex. 18, severance package. UF ¶ 24. Figueroa Depo, 123:15-20.) Figueroa said Wentland had never said the words "I don't actually want the job," and Figueroa saw Wentland going through the interview process and knew he wanted to stick around and take care of his dad until his dad passed away. (Ex.18, Figueroa Depo, 124:16-125:5.) 183. Figueroa's understanding of his conversations with Phil 183. Admitted. regarding wanting a buyout were that Wentland wanted a buyout where he could take his early retirement. (Ex. 18, Figueroa Depo, 36

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 17 of 20

177:13-17.) 184. Also, Perry was not aware that various DRC centers, especially Denver, had already implemented the sortation process to some degree or another prior to the redesign. (Ex. 3, Perry Depo, 32:12-16, 32:2533:4.) 185. Perry knew there were people who had opinions about the process. (Ex. 3, Perry Depo, 35:5-6.) Perry stated generally he did not feel it was relevant to inquire as to why they held those opinions. He did not care and didn't think it made a difference in the long run. (Ex. 3, Perry Depo, 35:9-14.) Further, Perry did not mind people challenging something. He did not mind if they disagreed that the redesign process is necessarily the right way to go. He did not mind if they disagreed that the whole team idea might not work. He did not care. (Ex. 3, Perry Depo, 35:16-17, 35:21-36:2.) However, Sears now claims that Green and Wentland (who were interviewed by Perry) were not hired in part because of their concerns/challenges over the new process. (UF Nos. 26 & 47.) 186. Perry also did not ask Wentland about his prior experience with the assembly line process. (Ex. 3, Perry Depo, 75:6-8.) Perry was not aware that Wentland was often in charge of an assembly line process for repair of lawn and garden equipment. (Ex. 3, Perry Depo, 75:1013.) 187. Perry has no specific memory of the interviews that he did in early 2000 in Denver other than the one memory that he recollected relating to Wentland. (Ex. 3, Perry Depo, 79:17-23.) 188. Perry does not recall any conversation about when someone was going to retire. It could have come up with regard to Wentland, but he does not remember saying it or having conversations about it. (Ex. 3, Perry Depo, 80:14-17.) 189. While Wentland was allegedly not hired because of his bad attitude and desire to leave Sears' employment post haste, he was the last technician terminated at the Thornton facility. (Ex. 18, Figueroa Depo, 153:20-156:18.) During that time, he was in charge of training six temporary workers and coordinating the clean-up of the mower shop prior to the consolidation. (Ex.5, Wentland Depo, 76:16-77:4, 224:25-225:8.) Wentland wrapped up the outstanding work, including taking a physical count of what was there, reviewing pending service orders and assisting Figueroa in going to other branches and looking at their equipment. (Ex. 18, Figueroa Depo, 194:4-155:25.) After he cleaned up the Thornton facility, he was sent to another facility to do the same. (Ex. 5, Wentland Depo, 76:16-77:2.) These efforts by Wentland, in the face of being terminated by Sears, show that he, in fact, possessed a good attitude and desire to continue working. 37

184. Admit that these are disputed facts, but deny that they are material. 185. Denied. Sears does not claim that Mr. Green or Mr. Wentland were not hired because of their "concerns" about the new process. As noted in Section II of Sears' Reply Brief, Mr. Wentland was not hired because he said he did not want the job and Mr. Green was not hired because he did not support the process.

186. Admit that these are disputed facts, but deny that they are material.

187. Admit that these are disputed facts, but deny that they are material. 188. Admit that these are disputed facts, but deny that they are material. 189. Admit that these are disputed facts, but deny that they are material. All such efforts were indisputably after the decision had been made not to hire him. Therefore, they cannot raise a factual issue as to the real reason he was not selected.

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 18 of 20

190. Brooks never spoke with Figueroa about his opinion of his employees' performance before she made her decision. (Ex. 18, Figueroa Depo, 149:22-25.) 191. No one associated with the hiring at Aurora Repair Center, including Brooks, ever spoke with Figueroa about his employees work performance. Figueroa had no involvement in the interview process for the positions at Aurora. (Ex. 18, Figueroa Depo, 150:23-152:9.) 192. Wentland was offered a Field Technician position, a position they knew he couldn't do because of his high blood pressure. (Ex. 10, Fanning Depo, 72:20-23.) 193. Brooks admitted that service technicians from other facilities participated in the redesign process, as well as field or site technicians, yet all these other technicians are missing from the list, without explanation, as to why Sears chose to group only those select few together. (Ex.2, Brooks 2002 Depo, 37:4-38:25.) 194. Sears' grouping of comparators at UF 58 is contrary to groupings of comparators it propounded when it moved in 2002 to dismiss this case under the OWBPA. See, Order dated 12/23/03, p. 9. For example, to fit the legal theory supporting their interests at that time, Sears argued that Wentland could not be compared to any technicians except himself since he was the only Lawn & Garden Technician working in Thornton, and accordingly, Sears was allegedly in compliance with the OWBPA for not disclosing the names of other technicians impacted by the redesign process to Wentland. Id.

190. Admit that these are disputed facts, but deny that they are material. 191. Admit that these are disputed facts, but deny that they are material. 192. Admit that these are disputed facts, but deny that they are material. Denied. 193. Denied. Sears' listing of various employees was as per the OWBPA. Sears incorporates by reference the undisputed facts from its Cross Motion for Summary Judgment, filed 8/23/02. 194. Denied. Plaintiffs are confused by two different concepts. The OWBPA required all people in Mr. Wentland's "decisional unit" who were not offered severance to be disclosed. Because there was no one in Mr. Wentland's decision unit, i.e., no other Lawn & Garden technicians from the Thornton shop were offered severance, no one was disclosed. However, it is a different issue as to who was hired. In this case, several workers from other "decisional units" were hired. These individuals would not have been on the list because they were not offered severance. 195. Denied. The chart expressly states that this is what happened to the group of technicians from Thornton. Padilla, Lang and Schley did not work in Thornton. 196. Denied. Dave Bunton and Kris Dean do not meet the stated parameters of the chart. As set forth in Sears' Reply Brief Section III, other ways of looking at the groups of who

195. The chart at UF 58 is inaccurate. Notably missing from the chart is Josie Padilla, the younger technician working in Thornton in the mechanical shop, although still classified as a Lawn & Garden Shop employee, who was hired instead of Green and Stears. (Ex. 18, Figueroa Depo, 85:7-86:7.) Other younger employees Lang and Schley, hired instead of Wentland, are not on the chart either. 196. Further, other older employees, including Dave Bunton, a technician also not selected for a position at the Aurora Repair Center, but one that worked for Sears at that time at the Littleton Lawn & Garden Shop is also missing from Sears' applicant chart. (Ex. 2, Brooks 2005 Depo, 11:5-9, 51:19-52:1, 53:1-11.) Kris Dean, who was 38

Case 1:01-cv-02324-JLK-MEH

Document 80-5

Filed 08/29/2005

Page 19 of 20

24 years old when he was hired for one of the Mechanical Positions for which Green and Stear applied, is also missing from the list as the other young outside applicant, Blankenship. 197. Further, the chart fails to mention that Reavis was hired for a part-time position - it is undisputed that the Plaintiffs applied for only full-time positions. (Ex. 2, Brooks 205 Depo, 90:10-11.) 198. At the time Green applied for a Mechanical Technician position at the new Aurora Repair Center, the only other Mechanical Shop Technicians working anywhere in Colorado were: Stan Kossman, age 44, 22 years of service; Wanda Reavis, age 52, 18 years of service; Josie Padilla, age 39, 16 years of Service; Jo French, age 59, Jan Stagner, age 62, Craig Slabodnik, age 39, nine years of service; Carol Dobbins, age 57, 21 years of service; and Jack Stear, age 55, 16 years of service. (Ex. 58, Friesen letter 1-31-02 with attachment; Ex. 59, Friesen letter 4-26-02; Ex.42, Bates Nos. 05241, 05243, Exh. 43, Bates Nos. 05244, 05247.) French and Stagner quit or voluntarily retired. (Ex. 58, Friesen letter 1-31-02 with attachment.) 199. The ages of the technicians who were actually hired were Stan Kossman (44), Wanda Reavis (52) Josie Padilla (39) and Kris Dean (24). (Motion, UF 50.) Wanda Reavis, the only employee over 50 who was hired, did not apply for the same job as Green or Stear, but rather, applied only for the part-time position. (Ex. 24, Brooks 2002 Depo, 110:23-111:10.) Except for the 39-year-old technician Sears' concedes was not even eligible for a position due to his disciplinary problems (Craig Slabvonic), Brooks hired every single young employee (employees under 44) that applied for a Mechanical Technician position over both Green and Stear out of Sears technicians that Sears contends applied. 200. At the time Breithaupt applied for an Electronic Service Technician positions at the new Aurora Repair Center, the only other Electronic Technicians working anywhere in Colorado interested in the same positions were: Curtis McReynolds, age 52, 32 years of service; Frank Weinzapfel, age 57, 27 years of service; Virginia Ballou2, age 43, years of service unknown; and Randy Shioshita, age 35, two years of service. (Ex. 12, Breithaupt Depo, 93:20-94:8; UF 58; Ex. 58, 1/31/02 Discovery Response via letter.) Only Breithaupt and Curtis McReynolds were not selected for their position at the Aurora Repair Center or selected for an alternative position elsewhere within Sears. Footer 2: Sears has represented that Virginia Ballou and John Trujillo were both technicians who applied for and received management positions at the Aurora Service Center. 201. At the time Wentland applied for a Lawn & Garden Technician position at the new Aurora Service Center, the other Lawn & Garden 39

was selected, both from Thornton and from outside Thornton, confirm the absence of age discrimination. 197. Admit that these are disputed facts, but deny that the