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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2324 JLK-MJW CHARLES T. GREEN, PHILLIP R. WENTLAND and MARILYN BREITHAUPT, Plaintiffs, vs. SEARS, ROEBUCK and CO., a New York corporation, Defendant. EXHIBIT U TO DEFENDANT'S REPLY TO PLAINTIFFS' RESPONSE TO SEARS' MOTION FOR SUMMARY JUDGMENT

Plaintiffs' Statement of Disputed Facts 1. Sears' E&M Factory Communication Guide for Denver sets forth responsibilities of managers involved in the Denver reorganization, the timeline it is to use for the redesign, hiring processes/policies to be used in reorganization, answers to frequently asked redesign questions, language managers are to use when announcing the redesign, application form/interview forms, human resource planning forms and other redesign related policies, procedures and forms. (Ex. 11, Bates No. 0200-321.) 2. Brooks received and reviewed the E&M Factory Communication Guide. (Ex. 2, Brooks 2005 Depo, 36:4-19; 43:15-44:5.) 3. The pages that are Bates Numbered 0252-0256 of the E&M Factor Guide reflect the responsibilities of the Sears managers involved in the 2000 redesign. (Ex. 2, Brooks 2005 Depo, 37: 19-23.) 4. Per the E&M Factory Communication Guide, "candidates in the impacted group" should be considered first for any open position. (Ex. 11, Bates No. 0257.) 5. Further, as discussed below, the Guide provides that "Associates impacted by a Product Services business change will be selected based 1

Defendant's Reply 1. Admit that this fact is disputed, but deny that it is material. As set forth in Sears' Reply Brief, Sears either complied with all its policies or any alleged deviations do not raise factual questions as to pretext. 2. Admit that this fact is disputed, but deny that it is material. 3. Admit that this fact is disputed, but deny that it is material. 4. Admit that this fact is disputed, but deny that it is material. Sears did consider Thornton shop technicians first for positions at the new facility. UF ¶¶ 6-12. 5. Admit that this fact is disputed, but deny that it is material. As set forth in

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on performance and seniority" and that "Associates will be selected. . . full-time associates, based on seniority (from longest to shortest). ." (Ex. 11, Bates No. 280.) 6. The E&M Factory Guide requires decision makers to consider seniority when making hiring decisions as part of redesign/reorganization such as the one in Denver in 2000. (Ex. 11, Bates Nos. 0258, 0280.) 7. Per Nash, seniority was an issue in the redesign. Nash stated that Sears values length of service both in terms of loyalty to the company and expertise developed. (Ex. 9, Nash Depo, 43:15-44:2.) It was Nash's understanding that seniority was to have been considered during that process. (Ex. 9, Nash Depo, 46:3-6.) 8. Mufic agreed that it was important to look at seniority during the redesign process. (Ex. 31, Mufic Depo, 107:16-108:4.) Mufic testified that someone who worked for 30 years for Sears would have met expectations, performance-wise, and would be a good person to talk to about working at the Aurora Repair Center. (Ex. 31, Mufic Depo, 108:11-17.) 9. Garcia conceded he was never told to look at seniority, and he stated, essentially, that it just did not count. (Ex. 7, Garcia Depo, 37: 34, 12.) Perry was not aware of the applicant's seniority at the company and stated that it did not matter to him, and it played no factor in his recommendations. (Ex. 3, Perry Depo, 49:5-8, 49:12-16.) Savard testified that she did not know an employee's seniority either. (Ex. 6, Savard Depo, 240:24-241:9.) 10. Brooks stated that seniority is "always is a factor" in determining who to lay-off in a reorganization because if you have a "length of time with the company, then normally that indicates a decent performance." (Ex. 2, Brooks 2005 Depo, 25: 3- 27:5.) Brooks stated that she and the redesign members considered seniority when contemplating which internal candidates to hire. (Ex. 2, Brooks 2005 Depo, 50:7-18.) However, all of the redesign team members and the human resource representative that participated in the teleconference to discuss who should be hired denied discussing or considering seniority at all. (Ex.10, Fanning Depo, 108:18-21, 49:1-3; Ex. 6, Savard Depo, 70:16-22, 240:17-241:9; Ex. 3, Perry Depo, 49:5-16; Ex. 7, Garcia Depo, 37:3-10.) Further review of the notes that Brooks used when making her decision does not show any seniority dates listed. Yet, the notes had past performance evaluations, interview scores, rate of pay and other personnel information listed. (Ex. 2, Brooks 2005 Depo, 94:10-25; Ex. 25, Bates No. 05252.) 2

Section III, Sears did consider seniority. 6. Admit that this fact is disputed, but deny that it is material. The document speaks for itself and Plaintiffs' characterization is incomplete and inaccurate. Seniority was not the primary selection criteria. 7. Admit that this fact is disputed, but deny that it is material. As set forth in Section III, Sears did consider seniority. 8. Admit that this fact is disputed, but deny that it is material. As set forth in Section III, Sears did consider seniority. 9. Admit that this fact is disputed, but deny that it is material. As set forth in Section III, the ultimate decisionmaker did consider seniority, and the fact that others did not, does not, as a matter of law make it a material issue of fact. 10. Admit that Brooks considered seniority as a positive attribute of the candidates. Plaintiffs' suggestion that Sears should have weighted Seniority more is immaterial because it questions the company's business judgment. It does not indicate that the company's stated reasons for not hiring Plaintiffs were pretextual.

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11. It is undisputed that the Plaintiffs, each of whom had decades of seniority, were not hired for positions that Brooks then gave to employees with less seniority: 11(a). James Blankenship (age 38) was hired for the position Breithaupt applied for - she had 26 years of service. UF 37, 38. He was not even working for Sears at that time, but had in the past worked for Sears for two years in the past. (Ex.39, Blankenship Application Bates No. 03175-03176, Ex. 12, Breithaupt Depo, 155:25-156:15). 11(b). Kris Dean (age 24), an outside candidate who was not working for Sears at the time he applied for a position in Aurora, and Josie Padilla (age 39), with 17 years of service, were hired for the Mechanical position sought by Green, who had 37 years of service, and Jack Stear, age 55, with 15 years of service. UF 51 (Ex. 40, Padilla resume Bates No. 04191; Ex. 41 Dean's application, Bates Nos. 03230-03231; Ex. 42, Bates Nos. 05244, 5245 & 05247) 11(c). George Lang (age 35), with one year of service, and Richard Schley (age 41), with ten (10) years of service, were hired for the Lawn & Garden Technician positions sought by Wentland, age 53, who had 35 years of service, and Dave Bunten, age 51, and 33 years of service. UF 29, (Ex. 43, Bates No. 05240-05241, 5243; Ex. 44, Bates Nos. 03576-03577.) 12. The pages marked as Bates No. 0253, 306 and 310-311, respectively, of the E&M Communication Factory Guide provides that the local management was to evaluate associates impacted by the reorganization, obtaining their "current performance trend and last annual performance rating," and "past performance" generally. (Ex.45 Bates Nos. 0253, 306 and 0310-311.)

Deny. Some of the employees hired had more seniority. UF ¶¶ 58-60. 11(a). Denied. Ms. Breithaupt applied for a position that was filled by three people, ages 61, 57 and 38. 11(b). Denied. The mechanical technician positions Mr. Green applied for were filled by multiple people, and this list is incomplete and inaccurate. UF ¶ 50. Mr. Stear did not apply for the same positions as Mr. Green was offered a promotion to another technician position at a higher salary. UF ¶ 58. 11(c). Denied. Three people were hired as Lawn & Garden technicians. They were 35, 41 and 59. UF ¶ 29.

12. Denied. The E&M guide speaks for itself. This quote is out of context and incomplete. In any event, Ms. Brooks did have the last performance ratings for each of the candidates during the telephone conference to discuss their performance. UF ¶ 9; Exhibit E. 13. While Brooks now testifies in her supporting affidavit that she only 13. Denied. Plaintiffs mischaracterize considered the information conveyed to her by the interviews, she the record. Ms. Brooks did not testify admitted she looked at John Trujillo's previous performance, and that that she only considered information of other candidates, in deciding that he was a good candidate for a from the interviews. To the contrary, position at the Aurora Repair Center. (Ex. 2, Brooks 2005 Depo, Ms. Brooks also relied on Exhibit E 57:16-25.) Further, when asked why she did not ask any of the and her own corroborating applicants' current managers about the skills each applicant possessed, conversations with Plaintiffs. Brooks stated that the redesign did not consider the managers opinions. Plaintiffs' own allegation She further explained that the applicants' performance evaluations confirms Ms. Brooks' compliance were reflected in the performance ratings that managers had previously with the guidelines suggested in the E given the employees and which were reviewed by the group (Brooks & M factory guide above. 3

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references the collective "we had the results of what their opinions were in their annual reviews"). (Ex. 2, Brooks 2005 Depo, 147:10-22.) 14. While agreeing that the redesign team was supposed to look at the candidates' latest performance reviews, Brooks was not sure if that information had been provided to them. (Ex. 2, Brooks 2005 Depo, 213:3-19.) 15. Garcia was given almost no instruction on the process and was never asked to look at personnel files or talk to supervisors. (Ex. 7, Garcia Depo, 33:10-15.)

14. Admit that this fact is disputed, but deny that it is material. 15. Admit that this fact is disputed, but deny that it is material. Sears' guidelines do not require all people involved in the process to consider past performance. The interviewers were concerned with reporting the results of the interviews. 16. Admit that this fact is disputed, but deny that it is material. Sears' guidelines do not require all people involved in the process to consider past performance. The interviewers were concerned with reporting the results of the interviews. 17. Admit that this fact is disputed, but deny that it is material. Sears' guidelines do not require all people involved in the process to consider past performance. The interviewers were concerned with reporting the results of the interviews. 18. Denied. Exhibit E demonstrates a broader look at production standards. UF ¶ 9. 19. Denied. Ms. Brooks did not even consider candidates for positions that would pay more than 10 percent less. UF ¶ 11. The 10 percent rule is reflected in E&M Guide that states that employees offered alternative jobs may still receive severance if the alternative pays more than 10 percent less. 20. Admit that this fact is disputed, but deny that it is material. It is undisputed that Ms. Brooks honestly

16. Perry also confirmed that redesign just did interviews - they did not talk to supervisors look at prior performance evaluations or observe the applicants working. (Ex. 3, Perry Depo, 44:1-9.)

17. Savard also knew nothing about an employee's past performance the only information she had to consider regarding whether to recommend some one was her interview with them. (Ex. 6, Savard Depo, 128:6-129:5; 202:19-203:17.)

18. When looking at the past performance of applicants, Brooks allegedly looked at 1998 and 1999 performance evaluations and not an employees' entire work record with Sears. (Ex. 2, Brooks 2005 Depo, 91:4-92:10.) 19. Brooks relies on the "Ten Percent Rule" as a basis for not hiring Plaintiffs into other positions, and states that the rule is contained within the E&M Factory Communication Guide. (Ex. 2, Brooks 2005 Depo, 65:6-17.)

20. The E&M Factory Communication Guide contains no rule that managers were forbidden from offering internal candidates not offered a position an alternative position if it would result in a greater than ten 4

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percent (10%) pay cut for the employees. (Ex.11, E&M Factory Communication Guide, Bates Nos. 0220-331.) The actual "Staffing Open Positions With Associates Impacted by a Business Change" lists eligibility requirements for applicants for positions at the Aurora Repair Center, and the ten percent rule is not mentioned as a criteria related to eligibility. (Ex. 11, Bates No. 0273.) Instead, it states that "Associates can apply for any open position in the unit they are currently assigned or in another Sears business unit provided they meet the eligibility requirements in this policy and those identified in the job posting." (Ex. 11, Bates No. 0276 (emphasis added.).) 21. Nash, the Director of Operations of the Carry-in Repair Business, stated that he was not aware of the "ten percent rule" since the typical policy he was aware of was that if you are in a position where your salary would be impacted over ten percent, then you would have an option to accept a retirement incentive package. (Ex. 9, Nash Depo, 55:21-57:4.)

and in good faith believed there was a 10 percent rule, that it is contained in the E&M guide as described above and that she applied the rule consistently, regardless of age. UF ¶ 11.

22. Ron Medford, the National Carry-in Operations Manager, was also not aware of a Sears policy that stated that a manager could not hire an employee into a position where that employee would take more than a ten percent (10%) pay cut. (Ex. 8, Medford Depo, 48:24-49:17, 77:15-78:2.) He reviewed the E&M Factory Communication Guide when it was being drafted. (Ex. 8, Medford Depo, 42:3-42:17.)

23. The page labeled as Bates No. 0228 of the E&M Factory Guide provides that salary to midpoint figure for the Aritisan position and Mechanical Technician (also called Line Specialist 2) position is the same - $15.00 per hour. (Ex. 11, Bates No. 0228.) Yet, Brooks claims Green was not eligible for that position because of the "ten percent rule," even though that pay is not ten percent less than Green's technician position. UF 11.

24. The E&M Factory Communication Guide provides the local management and human resource representatives are to complete and send in to Sears' headquarters an "Adverse Impact Summary" to 5

21. Admit that this fact is disputed, but deny that it is material. It is undisputed that Ms. Brooks honestly and in good faith believed there was a 10 percent rule, that it is contained in the E&M guide as described above and that she applied the rule consistently, regardless of age. UF ¶ 11. 22. Admit that this fact is disputed, but deny that it is material. It is undisputed that Ms. Brooks honestly and in good faith believed there was a 10 percent rule, that it is contained in the E&M guide as described above and that she applied the rule consistently, regardless of age. UF ¶ 11. 23. Denied. Sears has never claimed Mr. Green was ineligible for this artisan position. Significantly, Plaintiffs cite no authority for this proposition. Two of Mr. Green's comparitors, Reavis and Padilla, were, in fact hired into the artisan position. Def's Exs. X and Y. Thus, Mr. Green was considered for this position. See UF ¶¶ 50-52, giving Reavis and Padilla as people who got positions for which Mr. Green was considered. 24. Admit that this fact is disputed, but deny that it is material. As set forth in Section III of Sears Reply, the

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apparently determine whether any protected group, such as older employees, would be adversely impacted by the proposed redesign hiring process. (Ex. 11, Bates Nos. 0253 and 0310-0311.) 25. The page labeled as Bates No. 0253 of the E&M Factory Guide states that the Human Resource Specialist and District Service Manager were to prepare an Associate Impact Summary and submit it to Sears' Region HR Manager and Region Service Manager, who were then to approve the summary "as appropriate." (Ex. 11, Bates No. 0253; see also Bates No. 0257.) 26. Brooks and Fanning denied conducting such an analysis, and Sears has failed to produce the required impact analysis form to Plaintiffs although requested to do so. Brooks admitted that the purpose of the Adverse Impact Analysis was to make sure that Sears was complying with Federal law and that it was important to complete. (Ex. 10, Fanning Depo, 44:4-45:6; 199:11-22; 152:15-21; Ex. 2, Brooks 2005 Depo, 40:9-41:2.) 27. Brooks does not know if the adverse impact summary was ever completed. She said one was supposed to have been completed per the E&M Factory Guide. Brooks does say, however, that one had been prepared for Sears' counsel, personally at a later date. (Ex. 2, Brooks 2005 Depo, 40:9-41:2.)

company did complete an Impact Summary. 25. Admit that this fact is disputed, but deny that it is material. As set forth in Section III of Sears' Reply, the company did complete an Impact Summary. 26. Denied. As set forth in Section II of Sears' Reply, Ms. Brooks and Ms. Fanning said they did complete impact analysis and Sears' privileged log identifies that as a privileged document. Plaintiffs' citations do not support their assertions. 27. Denied. Ms. Brooks' testimony is that she saw the impact summary later, not that it was prepared later. Ms. Fanning said only that she did not remember whether or not she prepared the summary. As noted, Sears prepared a summary at the time of the redesign process and that document is listed on its privilege log. 28. Admit that this fact is disputed, but deny that it is material.

28. Savard testified that it was general practice that outside applicants were sought during the same time period that internal candidates went through the redesign process. (Ex. 6, Savard Depo, 198:24-200:4.) 29. Nash testified that while candidates internally were considered for 29. Admit that this fact is disputed, positions in the new redesigned facilities, Sears was advertising for but deny that it is material. outside candidates at the same time. (Ex. 9, Nash Depo, 47:18-23.) Accordingly, Nash would not be surprised if external candidates were being interviewed at the same time as internal candidates for new positions at the redesigned facilities. (Ex. 9, Nash Depo, 78:17-79:17.) Further, if they were able to fill all of the positions internally, he stated there would have been no reason to go to an external work force as it is much more expensive to do that with the cost of the learning curve, payroll processing, etc. (Ex. 9, Nash Depo, 76:13-77:8.) Nash admitted that Sears was much better served if it could find the right skill sets within an existing work force. (Ex. 9, Nash Depo, 76:13-77:8.) 30. See Dfs Nos. 1,6-27, above. 30. Sears incorporates its responses to these allegations. 31. Brooks testified in her 2002 deposition that employees were only 31. Denied. Plaintiffs mischaracterize 6

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considered for jobs they were currently doing, and not other jobs for which they may have been qualified. Specifically, Brooks testified that Sears only considered electronic technicians, for example, for an electronic job at the new facility and that they were not considered for other jobs at the new facility. (Ex. 24, Brooks 2002 Depo, 159:23-25, 160:1-8; 161:11-23.)

the testimony. In 2002, Ms. Brooks addressed several situations in which she considered people outside their job classifications, including this one. See Affidavit in Support of Amended Brief in support of Cross Motion for Summary Judgment at ¶¶ 22-28. The alleged dispute is, in any event, immaterial for the reasons stated in Sears Reply Brief Section III. 32. However, in her 2005 deposition, Brooks conceded that she 32. Admit that this fact is disputed, considered and hired Josie Padilla into a mechanical position even but deny that it is material. It is though her supervisor, Figueroa, testified that he only loaned Padilla to undisputed that Ms. Padilla had the Mechanical Shop occasionally, and that she was still assigned to extensive experience repairing sewing the Lawn & Garden Shop. (Ex. 2, Brooks 2005 Depo, 82:19-83:22.) machines and that Ms. Brooks knew Furthermore, Padilla admits she never told anyone that she wanted to about this experience. Pl's Ex. 2 at apply for any other job than the Lawn & Garden Technician job listed 83:5-12; Pl's Ex. 1 14:10-13; 27:8-10; on her application. (Ex. 1, Padilla Depo, 53:9-54:4, 60:1-12.) 28:6-15; 42:4-7. 33. Confronted with the concept that Padilla may not have put in an 33. Admit that this fact is disputed, application for the mechanical technician position, Brooks testified that but deny that it is material. it would not have mattered and that Brooks considered her for an open mechanical position because she had already been determined "qualified" for the new process. (Ex. 2, Brooks 2005 Depo, 82:1983:22.) 34. Perry testified that the hiring manager would typically only look at 34. Admit that this fact is disputed, a person for the position for which he applied, assuming he was but deny that it is material. Typical applying for the position that is in his area of expertise, and that he was practices do not raise any material not aware that Brooks was looking at whether or not he would be disputes as to the facts that Ms. qualified for other positions. (Ex.3, Perry Depo, 95:23-96:16.) Brooks needed a sewing machine technician and knew Ms. Padilla to be qualified in this area. See response to paragraph 32 above. 35. After her deposition in 2002, Stephanie Brooks (the only 35. Denied. Ms. Brooks was deposed individual to be deposed in the first stage of the litigation) made a as a 30(b)(6) witness. Thus, the number of significant and substantive changes to her deposition. See "company" was deposed in the first Motion to Strike, filed 7/31/02, the Amendment to Deposition attached case, and Ms. Brooks was charged thereto as Exhibit 1 and corresponding pages to Deposition of with obtaining and conveying accurate Stephanie Brooks attached thereto as Exhibit 2. information about a long and complex process. As set forth in Sears Opposition to the Motion to Strike, filed 8/23/02, Ms. Brooks did not change her testimony, but merely followed up on areas to clarify the 7

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36. In her affidavit, Brooks completely reverses her sworn testimony that Ballou was an electronics technician. Brooks testified that she observed Ballou in the field working on electronic equipment (see Motion to Strike, filed 7/31/02, Ex. 2, 151:19-152:2), that Sears "viewed Ballou as an electronics technician," (Id. at 160:15-16), and that "she was an electronics technician." Id., at 160:6-8. Finally, three different times during her deposition, Brooks testified that Ms. Ballou's classification as a mechanical technician was a clerical error. (Id. at 155:7-11; 160:12-15; 160:16-17.) Brooks' testimony that Ms. Ballou was an electronics technician was consistent and unwavering throughout the deposition cross-examination regarding Ms. Ballou's proper classification. Id. The issue under the OWBPA was which technicians should have been on Plaintiffs' notices. 37. Brooks' affidavit was not based on newly discovered evidence. To the contrary, as Routing Manager of the Thornton facility prior to the reorganization (Id. at 6:21-25; 122:24-25), Ms. Brooks would have been well aware of Ms. Ballou's proper classification. Ms. Brooks was responsible for assigning repair projects, or routing the service calls, to technicians at the Thornton facility, one of whom was Virginia Ballou. (Id. at 123:2-4.) Ms. Brooks held this position for two years. (Id. at 123:7-8.) Therefore, for two years, Ms. Brooks was responsible for assigning Ms. Ballou her repair projects, which would have required her to decide upon what types of products Ms. Ballou would work. After assigning Ms. Ballou projects for two years, Ms. Brooks had to have known better than anyone else that Ms. Ballou worked on electronic equipment. Ms. Brooks' testimony does not reflect any confusion. Rather, she concisely and without reservation states that Ms. Ballou was an electronics technician and that her classification as a mechanical technician was a clerical error. (Id. at 155:7-11; 160: 1215; 160:16-17.) 38. In another part of her 2002 affidavit, Ms. Brooks attempts to expand upon and supplement her deposition testimony about the process Sears used in determining who would obtain positions at the new Aurora facility. In her deposition, Brooks described the process as follows: 1) Sears held a general informational meeting to inform the shop technicians of the redesign process; 2) Sears posted the job descriptions of the positions available at the new Aurora facility in each facility; 3) Sears took applications for those new positions; and then 4) Sears decided who would be selected. Id. Brooks' 2002 affidavit described new additional stages to this process that are far more complex and which she never mentioned in her deposition testimony. (Ex. 46, Brooks 2002 Affidavit, para. 10.) 8

information she had already provided. 36. Denied. See Sears' Opposition to Motion to Strike. Moreover, for the reasons set forth in Sears' Reply Brief Section III, this purported factual dispute is immaterial. As a matter of law, inconsistencies in unrelated matters do not raise specific facts sufficient to defeat summary judgment.

37. Denied. Sears incorporates its Response in Opposition to Plaintiffs' Motion to Strike and reiterates that this is not a material issue of fact.

38. Denied. Sears incorporates its Response in Opposition to Plaintiffs' Motion to Strike and reiterates that this is not a material issue of fact.

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39. Brooks said she did not have the power to "override" the interviewer's conclusions because the decisions were made by group consensus. (Ex.2, Brooks 2005 Depo, 60:14-18.) In fact, Brooks earlier testified that she actually wanted to hire to Breithaupt, but her decision was overridden by the interviewers. (Ex. 2, Brooks 2005 Depo, 60:2561:6.) Brooks now claims she was the final decisionmaker. (UF 10.)

39. These allegations do not reflect any disputed fact. Ms. Brooks was the ultimate decision maker and she made the decision based on a consensus. She did not conduct the interviews so, of course, she could not override their conclusions. More importantly, if she was required to follow the interviewers recommendations, this fact would support, not rebut, Sears' stated reasons for not hiring Plaintiffs. 40. Garcia did not feel he would be qualified to interview people on 40. Admit that this fact is disputed, lawn and garden skills, and he did not have much experience with lawn but deny that it is material. Mr. and garden. (Ex. 7, Garcia Depo, 35:7-9, 11, 13-14.) Wentland was not disqualified based on the results of a poor technical interview with Mr. Garcia. 41. Garcia had never seen the redesign guide before his deposition. 41. Admit that this fact is disputed, (Ex. 7, Garcia Depo, 90:6-8.) No one told Garcia that the Aurora but deny that it is material. This fact, facility was going to operate differently than Thornton. (Ex. 7, Garcia even if it were true, does not rebut the Depo, 98:1-12.) information Mr. Garcia provided as a result of the interviews. 42. Garcia had to go to Perry and say essentially "tell me how this 42. Admit that this fact is disputed, works," before he received information. (Ex. 7, Garcia Depo, 99:12but deny that it is material. 15.) 43. Garcia did not know the positions to which the individuals he 43. Admit that this fact is disputed, interviewed were applying. He did not know if they were interested in but deny that it is material. positions outside their current department or if they were interested in a lower-level position. (Ex. 7, Garcia Depo, 39:14-20,40:19-41:1; 123:16-18.) Savard also did not know the positions for which she was interviewing candidates. (Ex. 6, Savard Depo, 162:24-163:9.) 44. Brooks testified that the redesign team spoke for "hours" on 44. Admit that this fact is disputed, telephone conferences about which employees to hire for positions at but deny that it is material. Ms. the Aurora Repair Center (Ex. 2, Brooks 2005 Depo, 49:9-11). Garcia Brooks spoke with other members of testified he did not participate in other prior conversations with the the team. redesign team about selections. (Ex. 7, Garcia Depo, 44:8-12.) 45. In accord, Perry said the redesign team (Savard, Perry, Currier) 45. Admit that this fact is disputed, made the decision as to who the team was going to recommend for a but deny that it is material. These job offer or not. (Ex. 3, Perry Depo, 58:24-59:3.) Perry testified that statements tend to corroborate how the there were some recommendations the team made for hire that Brooks process worked. disagreed with and associates that the team did not want that Brooks did want. (Ex. 3 Perry Depo, 62:1-5; 62:24-63:1.) Perry recalled that they recommended Dave Bunten (who, it is undisputed, was not offered a position by Brooks). (Ex. 3, Perry Depo, 63:14.) He also 9

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stated that he thought it was questionable whether they recommended Padilla or Reavis. (Ex. 3, Perry Depo, 63:18-19, 64:3-4.) Green would have also been one individual that would have been "a question" (Ex. 3, Perry Depo, 64:3-4, 12-13.), and Breithaupt may have been one that was a question, but he cannot recall any discussion about her. (Ex. 3, Perry Depo, 64:12-13, 7-1 1.) 46. Garcia did not know for certain who made the final decision concerning who to hire. (Ex. 7, Garcia Depo, 76:22-77:11.) However, during the ten minutes that they were on the conference call, Garcia perceived that Brooks was going to make the final decision. (Ex. 7, Garcia Depo, 8 1:9-11, 81:16-19.) 47. Garcia found out who had not been selected by going to the actual centers where some of the individuals worked and talking to them. (Ex. 7, Garcia Depo, 83:4-8.) 48. Colorado was doing repair center type assembly line functions, a precursor to the full redesign carry-in format. (Ex. 3, Perry Depo, 18:911, 18:14-19.) This moves the product to a central location, which was only one piece of carry-in. The other piece was repair processes. When asked whether this was the assembly line, Perry referred to it as the sortation process. (Ex. 3, Perry Depo, 19:14-19.) 49. Garcia later saw a lot of long-term employees who ended up losing their jobs with Sears from his own team. (Ex. 7, Garcia Depo, 17:20-2 1, 25.) Regarding concerns that Sears was trying to get rid of some of its older, more highly paid employees, Garcia said he thinks the thought crossed through everybody's mind. Id. All of them were about the same age and had worked their way up in making a good salary due to their many years of service. (Ex. 7, Garcia Depo, 21:2522:9.) 50. Nash states that the only thing he is aware of regarding any age analysis anywhere in their business was only to evaluate overall workforce. In other words, what associates could be eligible to retire and what kind of risk did that involve for the business. (Ex.9, Nash Depo, 21:10-15.) 51. Obviously, a risk to the business would be an aging population. That is a real danger in the business in terms of how would you replace those technicians that are eligible to retire if they elect to retire. The analysis was designed to provide some kind of backflow technical plan in the event that technicians would elect to retire. (Ex. 9, Nash Depo, 22:12-23:22.) Nash believes there were various tactics employed and are still being employed to satisfy that need. (Ex. 9, Nash Depo, 26:1021.) 52. Medford was also aware that, as a regular course of business, Sears performs an analysis regarding the age of its technicians and the 10

46. Admit that this fact is disputed, but deny that it is material.

47. Admit that this fact is disputed, but deny that it is material. 48. Admit that this fact is disputed, but deny that it is material.

49. Admit that this fact is disputed, but deny that it is material.

50. Admit that this fact is disputed, but deny that it is material.

51. Admit that this fact is disputed, but deny that it is material.

52. Admit that this fact is disputed, but deny that it is material.

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impact of technicians retiring on its business. (Ex. 8, Medford Depo, 31:3-32:5.) Medford said the purpose of this planning was to identify potential industries where Sears would be at risk for appropriate staffing in the future - it was a heads-up and an awareness of the field team that, as a business, Sears needed to be aware of what its potential turnover looked like. (Ex. 8, Medford Depo, 34:20-36:8.) His understanding was that Sears looked at how many employees fell in a particular band and made some assumptions that those employees in that band were close to retirement and may be looking at retirement. (Ex. 8, Medford Depo, 37:23 -38:5.) 53. Chuck Nash managed the redesign team at the time of the Denver reorganization. (Ex. 9, Nash Depo, 7:2-5,) He was not the direct supervisor of all the members of the redesign team in 1999 and 2000, but did give them strategic supervision. (Ex. 9, Nash Depo, 33:6-18.) Their direct supervisor was Ron Medford, and Medford reported directly to him. (Ex.9, Nash Depo, 33:6-18.) 54. Ron Medford was the National Carry-in Operations Manager for Sears and considered himself part of the redesign initiative nationally. (Ex. 8, Medford Depo, 26:7-10; 6:24-7:2.) In his role, Medford stated that he supervised the interviewing process while local management and supervisor made the hiring decisions in the local environment. (Ex. 8, Medford Depo, 15:18-22.) 55. Ray Figueroa worked for Sears as a Technical Manager in Thornton from 1997 through the redesign. (Ex.18, Figueroa Depo, 16:14-16, 16:21-25, 17:1-8, 17:12-15.) In 1997 and early 1998, Figueroa managed all the Lawn and Garden Shops in Thornton, Aurora, Littleton and Westland (all in the Denver metro area). In addition, Figueroa managed the Lawn and Garden Field Technicians. (Ex. 18, Figueroa Depo, 17:16-18:17.) 56. Sometime toward the summer of 1998, Figueroa was also assigned to be the technical manager for the Mechanical Repair Shop, and he continued to be the Technical Manager for the Lawn and Garden Shop. He managed the Mechanical and Lawn and Garden crews from 1998 until about August of `99, when Sears hired another technical manager, Craig Peterson. Peterson then supervised the Mechanical Repair Shop crew, and Figueroa went back to just supervising the Lawn and Garden Shop. (Ex. 18, Figueroa Depo, 20:4-21:4.) 57. Stephanie Brooks began as an Installer with Sears in January 1986. She then received promotions through Service Technician, Parts Supervisor, Support Supervisor, Technical Supervisor, Technical Manager, and Routing Manager positions for the next fourteen years until she was promoted to Unit Manager in February 2000. (Ex. 2, Brooks 2005 Depo, 8:15-10:18.) Brooks is currently the Unit Manager 11

53. Admit that this fact is disputed, but deny that it is material.

54. Admit that this fact is disputed, but deny that it is material.

55. Admit that this fact is disputed, but deny that it is material.

56. Admit that this fact is disputed, but deny that it is material.

57. Admit that this fact is disputed, but deny that it is material.

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of the Aurora Repair Center, and she supervises the technical team and the support team. (Ex. 2, Brooks 2005 Depo, 12:6-12) Brooks' only role in the interviews of current shop technicians was schedu1ing their interview since the interviews were conducted before she even received the Unit Manager position. (Ex. 2, Brooks 2005 Depo, 47:19.) 58. Craig Peterson began working for Sears in August 1999 as Technical Supervisor, managing in-home technicians, a position he held through the redesign. (Ex. 47, Peterson Depo, 12:19-14:7.) 59. Robert Garcia worked for Sears for 35 years, during which time he held the position of Road Technician, Technical Supervisor and, lastly, Technical Instructor. (Ex. 7, Garcia Depo, 9:1-6.) Garcia was a Road Technician for thirty years from his hire date in 1967. He also served as a Technician Supervisor during 1995 and 1996. In 1997, he was promoted to Technical Instructor, the position he held until the reorganization in 2001. (Ex.7, Garcia Depo, 11:23-12:25.) 60. Nancy Savard started with Sears in 1968, and worked for Sears for 34 years. Initially, she worked in retail for approximately five years until she transferred to the product services side of Sears. She worked for approximately 15 years as both a shop and field repair technician, after which she was promoted to a tech manager. After a period of time, Savard was again promoted, this time to Support Manager in the Kansas City area. After about 18 months, Savard was promoted to Regional Operations Manager in the Kansas City region. After another 18 months, she was promoted to District Manager in Flint, Michigan, where she spent approximately three or four years until she joined the Redesign Team. After serving on the Redesign Team, Savard transferred from the carry-in side of Sears to the HVAC side of Sears until she left Sears in 2002. (Ex. 6, Savard Depo, 11:18-13:16.) 61. Daniel Perry has worked for Sears for 33 years. During his first 20 years, he was a technician. In approximately 1993, he was promoted to Tech Manager. In 1996, he was again promoted to Route Manager until he left that position to lead the Redesign Team from 1998 - 2001. In 2001, he left the Redesign Team, and is now Region Operating Manager for the Southeast Carry-in Region. (Ex. 3, Perry Depo, 8:249:10.) 62. Frank Mufic is the District Service General Manager. In 1999, he made the announcement about the redesign. He was not involved in making decisions about who to hire in Aurora, but if somebody wanted to get a job through the outplacement process, he took care of that issue. (Ex. 31, Mufic Depo, 7:21-23; 15:2-16; 76:3-10.) 63. As noted by Sears, during April and May 2000, Sears terminated Plaintiffs as part of its alleged "reorganization" of its repair facilities. 12

58. Admit that this fact is disputed, but deny that it is material. 59. Admit that this fact is disputed, but deny that it is material.

60. Admit that this fact is disputed, but deny that it is material.

61. Admit that this fact is disputed, but deny that it is material.

62. Admit that this fact is disputed, but deny that it is material.

63. Sears denies the argument and characterization contained in this

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Plaintiffs were among the oldest and most experienced Service Technicians employed by Defendant in Colorado. At the time of their terminations, Plaintiffs' respective ages and years of working at Sears were as follows: (1) Plaintiff Green: 59 years old, 37 years of employment; (2) Plaintiff Wentland: 53 years old, 35 years of employment; (3) Plaintiff Breithaupt: 48 years old, 26 years of employment. (Plaintiffs' Motion for Summary Judgment filed in 2002, Ex. F, Declaration of Charles T. Green; Plaintiffs' Motion for Summary Judgment filed in 2002, Ex. F, Declaration of Phillip R. Wentland; Plaintiffs' Motion for Summary Judgment filed in 2002, Ex. G, Declaration of Marilyn Breithaupt.) Declarations are provided again at Plaintiff's Ex. 61 to their Response. 64. Plaintiffs were all employed by Sears as Shop Service Technicians at its Thornton, Colorado Service Center ("Thornton Facility"). (Ex. 61.) As Shop Service Technicians, Plaintiffs diagnosed and repaired appliances in the "shop", i.e., at the Thornton Facility. (Ex. 61) Shop Technicians are one of two species of Service Technicians, the other being Field Technicians -those Service Technicians who repair appliances in customers' homes, as opposed to in the "shop." 65. In 1999/2000, Plaintiffs were told that all repair shops in the Denver metropolitan area (Ex. 24, Brooks 2002 Depo, 172:16-174:5.) would be consolidated into a centralized repair facility in Aurora, Colorado, as well as the lawn & garden shops in Littleton, Lakewood and Aurora. (Ex. 24, Brooks 2002 Depo, 12:11-13:24) Plaintiffs were further informed that they would be required to apply for "their jobs." (Ex.61, Ex. 24, Brooks 2002 Depo, 14:19-24; Ex.7, Garcia Depo, 14:23-24.) Finally, Plaintiffs were told by their managers that all current employees who were not selected for a position at the Aurora Repair Center (including their own or any other available position for which they were qualified) would have their employment terminated as part of Sears' redesign. (Ex. 61.) 66. Each Plaintiff thereafter applied and interviewed for one or more open positions at the Aurora facility. (Ex. 61.) Green also applied for the additional positions of Artisan and Installer/Helper. (Ex. 4, Green Depo, 65:18-22; Ex. 37, Green Affidavit, para. 2). These positions were quite similar, if not outright the same, as the jobs they were performing satisfactorily in Thornton, but suddenly they were not qualified for these jobs after the positions were transferred to the new Aurora facility. (Ex. 4, Green Depo, 103:15-104:3). See e.g., Ex. 18, Figueroa Depo, 107:10-16; Exh. 7, Garcia Depo, 54:18-55:4.) 67. In the Spring of 2000, Plaintiffs were advised by Brooks that, notwithstanding their decades of experience, skills and qualifications, they had not been selected for positions at the Aurora Repair Center. 13

purported statement of facts. Sears admits the ages and years of service.

64. Admitted.

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

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

67. Denied. The record citation does not support the allegation.

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(Ex. 61; Exh. 38 EEOC charges.) 68. Further, the Plaintiffs allege that they were told by Brooks that they were not getting a position at the Aurora Repair Center because they were "not a good fit." (Ex. 38, Green Charge of Discrimination, para. 1; Ex. 37, Green Affidavit, para. 3; Ex. 15, Wentland Affidavit, para. 5; Ex. 38, Breithaupt Charge of Discrimination, para. 1; Ex. 14, Breithaupt Affidavit, para. 4,7). At least one of the other older employees who was also not selected for a technician position, Curtis McReynolds, was also told that he was not getting a position because he was "not a good fit." (Ex. 49, McReynolds Affidavit.) 69. At the time of his termination in 2000, Plaintiff Green had been employed by Sears for thirty-seven and a half (37 1/2) years, he was fifty-nine (59) years old, was earning $18.80 per hour, and was a Level II Service Technician. (Defendant's Answer, ¶16.) Brooks confirmed that she knew that Green could do almost any type of repair, including repair on items other than mechanical items, and that he had been crossed-trained in other areas of repair. (Ex. 2, Brooks 2005 Depo, 71:13-28; Ex. 24, Brooks 2002 Depo, 73:16-2 1.) Brooks admitted that Green has excellent technical skills and that if she needed something done she gave it to him. (Ex. 2, Brooks 2005 Depo, 70:25-71:6.) 70. At the time of his termination in 2000, Plaintiff Wentland had been employed by Sears for thirty-five (35) years, he was fifty-three (53) years old, was earning $18.26 per hour, and was a Level III Service Technician. (Defendant's Answer, ¶ 21.) Brooks also testified that she sent hard items to repair to Wentland, in particular, to work on because of his skill. (Ex. 2, Brooks 2005 Depo, 76:20-78:9). 71. At the time of her termination in 2000, Plaintiff Breithaupt had worked at Sears for twenty-six (26) years, she was forty-eight (48) years old, was earning $18.83 per hour, and was a Level III Technician. She worked on electronic and mechanical equipment (Ex. 24, Brooks 2002 Depo, 186:22-24; 153:11-13), and had worked on lawn and garden equipment. (Ex. 24, Brooks 2002 Depo, 179:19181:18.) Brooks admitted that Marilyn Breithaupt was crossed-trained to work in different areas of repair. (Ex. 24, Brooks 2002 Depo, p. 73:16-21.) 72. Brooks had worked with Plaintiffs for years and had routed their daily work to them for the two years before the redesign, as she was the routing manager at Thornton. (Ex. 24, Brooks 2002 Depo, 122:24123:8.) 73. Despite 37 years of loyal service, extensive training from Sears, numerous accolades and his resourcefulness as an experienced trainer, Green was terminated by Sears in 2000. (Ex. 38, Green Charge of Discrimination, para. 1,2; Ex. 37, Green Affidavit, para. 1). Green 14

68. Admit that these facts are disputed, but deny that they are material. Ms. Brooks denies that she made the comments about "a good fit," but such comments would not, in any event, reflect age bias.

69. Admit that these facts are disputed, but deny that they are material. Mr. Green's technical abilities are not at issue. These facts do not rebut his hostility towards the new process he conveyed during his interview and thereafter.

70. Admit that these facts are disputed, but deny that they are material. These facts do not rebut the fact that Mr. Wentland told his interviewer that he did not want the job. 71. Admit that these facts are disputed, but deny that they are material. These facts do not rebut the fact that Ms. Breithaupt answered poorly in her technical interview and that she was perceived as lacking the necessary technical skills. 72. Admit that these facts are disputed, but deny that they are material. 73. Admit that these facts are disputed, but deny that they are material. Mr. Green's technical qualifications are not at issue. Rather,

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received extensive training from Sears on mechanical repair, including traveling out-of-state for training on sewing machines. (Ex. 37, Green Affidavit, ¶ 2.) Padilla never received "formal" training from Sears on mechanical equipment until after she was hired as a mechanical technician at the Aurora Repair Center. (Ex. 1, Padilla Depo, 41:2243:13.) 74. During his tenure at Sears, Green was instrumental in training junior technicians and assisting less-experienced shop technicians with service problems they were unable to solve. (Ex. 38, Green Charge of Discrimination, para. 1; Ex. 37, Green Affidavit, para. 3; Ex. 3, Green Depo, 37:21-42:25; Ex.50, Awards; Ex. 47, Peterson Depo, 52:8-53:3.) Brooks confirmed that she knew that Green had trained employees in the past. (Ex. 2, Brooks 2005 Depo, 70:22-23.) In addition, Green often acted as a liaison between technicians and management regarding safety problems, part problems and hazardous conditions in the shop and building. Sears took note of Green's assistance in dealing with junior technicians by consistently giving Mr. Green reviews which were at or above expectations, including teamwork and leadership skills. (Ex. 38, Green Charge of Discrimination, para. 1; Ex.30, Green Performance Evaluation, Sears Bates #1575-15 76). 75. On several occasions, Sears had promotions for their employees to improve performance and sales, and Green often received awards and accolades. (Ex.50, Green awards, P1's Bates Nos. 169-195.) For example, for a period of time, Sears ran a promotion called the "7-11 Club." (Ex.37, Green Affidavit, ¶ 3.) To become a member of the club, technicians were expected to complete several calls per day and sell several extended service plans per day. Id. As a reward, technicians received money, namely Susan B. Anthony dollars, on a daily basis and 7-11 jackets if they maintained such a level for several months. Id. Green was very successful in the 7-11 club. Id. Over time, he received a box full of Susan B. Anthony dollars and at least one jacket during this promotion. Id. In addition, Green was given "Circle of Honor" awards on several occasions, in recognition of exceptional customer service. Id. Several other promotions were in effect at different times of Mr. Green's employment with Sears, and he was often successful in achieving the goals set by these promotions. Id. 76. Peterson started working at Sears in August of 1999 as the manager of the mechanical shop in Thornton. (Ex. 47, Peterson Depo, 12:19-21, 14:14-25.) Green and Jack Stear (an older employee not offered a position) worked for Peterson at that time, and he felt they both were good technicians and liked working with them. (Ex. 47, Peterson Depo, 30:7-14; 81:10-12.) 77. When Peterson was asked if he could only keep three of the 15

it is undisputed that he was not selected because of his hostility to the new process. It is undisputed that Ms. Padilla was technically qualified for the job. 74. Admit that these facts are disputed, but deny that they are material. Mr. Green's technical qualifications and past experiences are not at issue. Rather, it is undisputed that he was not selected because of his hostility to the new process.

75. Admit that these facts are disputed, but deny that they are material. Mr. Green's technical qualifications are not at issue. Rather, it is undisputed that he was not selected because of his hostility to the new process.

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

77. Admit that these facts are

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technicians that had worked in the mechanical shop (Reavis, Padilla, Stear, Kossman and Green), he responded that he would have kept Green, Kossman and, probably, Reavis. (Ex. 47, Peterson Depo, 32:2033:6.) (Padilla was supervised by Figueroa but was loaned by him to work in the mechanic's shop "on occasion" and thus, spent some time working under Peterson. (Ex. 1 8, Figueroa Depo, 85:7-86:7, Ex. 47, Peterson Depo, 33:24-34:3.) 78. Peterson gave Green an undated performance review in 1999 that appears be drafted on form with a date (lower right-hand corner) of 11/30/99. (Ex. 52, Bates No. 554-559; Ex. 47, Peterson Depo, 36:2-4; 9-12.) In that review, Peterson gave Green a rating of 4 out 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.) Overall, Green received a "consistently meets expectation: solid, value-added performance" rating for all reviewed factors combined. (Ex. 52, Bates No. 0554-0557.) 79. Peterson testified that if he had a problem call regarding mechanics, Green would take care of it for him. If he had a vacuum that needed done right away, Green would help. Peterson would pick Green to help with problems because of his technical abilities. Peterson thought Green was a good technician. (Ex. 47, Peterson Depo, 95:1796:24.)

disputed, but deny that they are material. Mr. Green's technical qualifications are not at issue. Rather, it is undisputed that he was not selected because of his hostility to the new process. 78. Admit that these facts are disputed, but deny that they are material. Mr. Green's past performance is not at issue. Rather, it is undisputed that he was not selected because of his hostility to the new process as expressed during the leadership interview and thereafter to Ms. Brooks.

80. Generally, Peterson felt Green was friendly and enjoyed talking with him, and he found Green dependable and knowledgeable in his skills as a mechanical technician. (Ex. 47, Peterson Depo, 63:10-25.) Further, Peterson remembered Green mentioning to him that Green had visited the Chattanooga site while on vacation. (Ex. 47, Peterson Depo, 74:12-75:5.) Prior to the redesign in Colorado, Green visited that Sears cite on his own initiative, while on vacation, so he could check out how the redesign process was working there. (Ex. 4, Green Depo, 79:5-80:4. 81. Sometime toward the summer of 1998, Figueroa was also assigned 81. Admit that these facts are disputed, but deny that they are to be the technical manager for the Mechanical Repair Shop, and he continued to be the Technical Manager for the Lawn and Garden Shop. material. He managed the Mechanical and Lawn and Garden crews from 1998 16

79. Admit that these facts are disputed, but deny that they are material. Mr. Green's past performance is not at issue. Rather, it is undisputed that he was not selected because of his hostility to the new process as expressed during the leadership interview and thereafter to Ms. Brooks. 80. Admit that these facts are disputed, but deny that they are material.

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until about August of `99, when Sears hired another technical manager, Craig Peterson. Peterson then supervised the Mechanical Repair Shop crew, and Figueroa went back to just supervising the Lawn and Garden Shop. (Ex. 18, Figueroa Depo, 20:4-21:4.) 82. Figueroa supervised Green for part of 1998 and 1999. He stated that Green came into work daily and did his work. Green knew the many pieces of equipment he was expected to repair on a given day, and he repaired them. Figueroa felt Green was an adequate technician. (Ex.18, Figueroa Depo, 135:3-8, 135:17-21.)

83. Figueroa also considered Green as one of the senior technicians in the mechanical shop. (Ex. 18, Figueroa Depo, 139:23-140:3.) Further, on the vacuum side of the shop, Figueroa would rank Green as one of the top three technicians, with Stan Kossman and Jack Stear. (Ex. 18, Figueroa Depo, 141:14-19.)

84. Further, when Figueroa (who always supervised Padilla and, for a period, supervised Green as well) was asked if he could hire only one person to work on mechanical appliances, would he choose Green or Padilla, he testified he would have chosen Green over Padilla. Figueroa stated Padilla was primarily a lawn and garden technician, whereas he only knew of Green's performance on the mechanical side. (Ex. 18, Figueroa Depo, 143:19-144:6.) 85. Brooks also admitted that Green has excellent technical skills and, if she needed something done, she gave it to him. (Ex. 2, Brooks 2005 Depo, 70:25-71:6.)

86. Padilla admitted that Green trained her and other Helper/Installers on how to repair vacuum and sewing machines, and that he had better mechanical repair skills when she was hired over him at the Aurora 17

82. Admit that these facts are disputed, but deny that they are material. Mr. Green's past performance is not at issue. Rather, it is undisputed that he was not selected because of his hostility to the new process as expressed during the leadership interview and thereafter to Ms. Brooks. 83. Admit that these facts are disputed, but deny that they are material. Mr. Green's past performance is not at issue. Rather, it is undisputed that he was not selected because of his hostility to the new process as expressed during the leadership interview and thereafter to Ms. Brooks. 84. Admit that these facts are disputed, but deny that they are material. Mr. Green's past performance is not at issue. Rather, it is undisputed that he was not selected because of his hostility to the new process as expressed during the leadership interview and thereafter to Ms. Brooks. 85. Admit that these facts are disputed, but deny that they are material. Mr. Green's technical qualifications are not at issue. Rather, it is undisputed that he was not selected because of his hostility to the new process as expressed during the leadership interview and thereafter to Ms. Brooks. 86. Admit that these facts are disputed, but deny that they are material.

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Repair Center. (Ex. 1, Padilla Depo, 14:20-16:10.) 87. Green applied for three distinct positions at the new Aurora Repair Center, including Mechanical Technician, Installer and Artisan. (Ex. 4, Green Depo, 63:3-9, 64:4-9, 65:18-66:2, 73:23-74:4). As noted above in DF' Nos. 66, 69, 73-86, he was qualified for all these positions. 88. Despite his years of service and qualifications, Green was not offered any position at the Aurora Repair Center and was, instead, told by Brooks "You don't fit in with how we want to do things in Aurora." (Ex. 38, Green Charge of Discrimination, para. 1; Ex. 61, Green Affidavit, para. 2; Ex. 4, Green Depo, 232:1-13, 233:8-18.) 89. Sears admits that Green had the technical ability to perform his mechanical technician job adequately. (Ex. 29, Sears' Green Position Statement, pg. 4). However, Sears has continued to assert that the leadership interviewer, Nancy Savard, determined that Green's teamwork skills were "weak" and that he "lacks the enthusiasm [and] team spirit that is needed for a redesigned unit." (Ex. 29, Sears' Green Position Statement, pg. 4). Sears claimed to the EEOC Investigator that it was this reason alone why they did not hire Charlie Green into any position. (Ex. 29, Sears' Green Position Statement, pg. 4.) 90. During Green's interview with Savard, she only asked him a few questions, including a question regarding how to handle a piece of merchandise that had been in for service three or four times. (Ex. 4, Green Depo, 60:11-19, 137:12-138:12). 91. Savard does not remember ever interviewing Green, and she did not recall a single word said during that interview, and thus, cannot rebut Green's recollection of her questions or his perceived attitude. (Ex. 6, Savard Depo, 123:17-18; 244:5-6, 80:22-81:1.)

87. Admit that these facts are disputed, but deny that they are material. It is undisputed that Mr. Green was not considered for positions paying more than 10 percent below his salary. UF ¶ 11. 88. Admit that these facts are disputed, but deny that they are material. See previous responses. 89. Admit that these facts are disputed, but deny that they are material.

92. Further, during her deposition, Savard stated that she thought that Green was an African-America gentlemen she interviewed, when in fact he is Caucasian. (Ex. 6, Savard Depo, 24:12-20; 86:7-9; 86:17018; 91:9-11.) 18

90. Admit that these facts are disputed, but deny that they are material. The facts supporting the decision not to hire Mr. Green are undisputed and set forth in Sears' Reply Brief Section II. 91. Admit that these facts are disputed, but deny that they are material. The facts supporting the decision not to hire Mr. Green are undisputed and set forth in Sears' Reply Brief Section II. Mr. Green's recollections of that event confirm his low rating and her report. What was reported to Ms. Brooks is the dispositive issue and that remains undisputed. 92. Admit that these facts are disputed, but deny that they are material. The facts supporting the decision not to hire Mr. Green are undisputed and set forth in Sears'

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93. In support of its Motion for Summary Judgment, Sears' statements that Green did poorly in his leadership interview are supported only by Brooks' testimony about what she was told by Savard, his interview sheets, her alleged conversation with him about doing lawn & garden work, and Green's statements in 2005 concerning his impressions of Savard and how the interview went in his own mind. UF 42-43 and Argument, p. 17-18. 94. Since Savard does not recall anything about Green's interview, Brooks' allegations about what Savard told her were not substantiated by Savard. (Ex. 6, Savard Depo, 123:17-18; 244: 5-6.)

Reply Brief Section II. 93. Sears Brief speaks for itself.

95. Green's interview notes referenced contain negative reference about Green written by an unknown author. As noted above in response to UF 44, Sears still contends that Savard wrote several derogatory notes about Green's leadership skills on her interview sheets, allegedly reflecting her impressions of Green during the interview. UF 44. 96. However, Savard denied several times in her deposition that the derogatory handwritten notes on her interview sheet were in fact hers. (Ex. 6, Savard Depo, 84: 12-17, 100:101:15-20; 125:18-23.) 97. Savard interviewed, alone, every candidate assigned to her. (Ex. 6, Savard Depo, 68:3-4, 244:6-8.) Further, she has no knowledge of why anyone would alter her original Green interview sheet, or who may have added those comments to it. (Ex.6, Savard Depo, 244:18-23.) She also had no ideas whose hand-writing were on the question and answer notes sheets attached to her interview notes, as the handwriting was not hers. (Ex. 6, Savard Depo, 242:11-243:20.) 98. Fanning, Brooks' personal friend, was the local Human Resource representative who maintained the original interview sheets after the interviews were completed. (Ex. 10, Fanning Depo, 30:8-10, 59:1-9.) Brooks conceded she was able to write on the interviews sheets, even though she did not do the interviews. (Ex.2, Brooks 2005 Depo, l99:200:8.) Accordingly, it is possible that the notes are Brooks' (even though she denies it), since Savard has stated they are not hers. 99. While Green did receive a score of 2.9 on his leadership interview, Savard, the individual Sears continues to claim recommended Green for non-hire, testified that she could not determine from his score whether she recommended him for hire, since the actual score had no 19

94. Denied. Savard did provide a rating sheet, placing Mr. Green at below acceptable in leadership. UF ¶ 44. Moreover, Ms. Brooks' perception of what Ms. Savard reported is the dispositive issue. 95. Sears admits that there is a disputed fact about who wrote the interview notes. However, it remains undisputed that the notes are negative about Mr. Green and that Ms. Brooks understood Ms. Savard's report on that interview to be negative. 96. Admit that these facts are disputed, but deny that they are material. 97. Admit that these facts are disputed, but deny that they are material.

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

99. Admit that these facts are disputed, but deny that they are material. It is undisputed that all the other successful applicants scored

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meaning without comparison to the score of the other applicants. (Ex. 6, Savard Depo, 86:10-18.) Accordingly, she testified that it was possible that she did recommend him for hire with his score of 2.9. (Ex. 6, Savard Depo, 97:14-20.) 100. Sears has put forth no evidence that the alleged concerns, feelings, impressions and recollections Green provided in regard to his leadership deposition were either known to Savard or Brooks before his 2005 deposition. Further, while Savard does not recall even interviewing Green, she testified that she had never had a situation where an candidate appeared "frustrated" with her, rebutting Sears' insinuation that she picked-up on the frustration Green felt during her interview. (Ex. 6, Savard Depo, 99:19-23.) 101. Moreover, the type of alleged feelings, concerns and impressions Green had were related to whether the redesigned repair process may not work were not uncommon. (Ex. 6, Savard Depo, 116:20-117:5, 133:7-9, 167:4-168:1.) In fact, redesign team member Perry stated that he knew there were people who had opinions about the process (Ex. 3, Perry Depo, 35:5-6), but he did not feel it was relevant to inquire as to why they held those opinions. He did not care and did not think it made a difference in the long run and did not hold such feelings against candidates. (Ex. 3, Perry Depo, 35:9-15.) Savard confirmed that several people raised their concerns to her, and that their concerns had only a slight amount of impact with her. (Ex. 6, Savard Depo, 99:24-100:9; 116:20-1 17:5, 133:7-9, 167:4-168:1.) 102. Perry also did not mind people challenging something, he did not mind if they disagreed as to whether the redesign process was necessarily the right way to go, and he did not mind if they disagreed that the whole team idea might not work. (Ex. 3, Perry Depo, 35: 1617, 35:21-36:2.)

higher than Mr. Green in leadership, with the exception of Ms. Padilla who scored the same. Mr. Padilla, however, had other, undisputed and non-discriminatory comparative advantages over Mr. Green. 100. Denied. Savard's leadership score of 2.9 for Mr. Green and Ms. Brooks' consistent testimony about his hostility to the new process confirm his negative attitude during the interview. 101. Sears denies that M