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

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

Document 80-3

Filed 08/29/2005

Page 1 of 20

Defendant's Undisputed Facts

Plaintiffs' Response "a little less" 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) Moreover, it should be noted that Brooks could have hired anyone she wanted, and was not bound by Currier's opinion, as she had previously testified in her 2002 deposition, that she had, in the end, final decision-making authority. (Ex.24, Brooks 2002 Depo, 35:25- 36:25, 37: 1-3.) Furthermore, Perry, Savard and Garcia all agreed that Brooks was the ultimate decision maker, and it was her discretion as to who to hire. (Ex. 3, Perry Depo, 62:1-5; 62:24-63:1; Ex. 6, Savard Depo, 61:23-62:2; 76:7-10: Ex.7, Garcia Depo, 8 1:9-19.) 35. Admit.

Defendant's Reply

35. Sears offered Ms. Breithaupt a position as a field technician, but she advised Sears that she was unable to perform the required duties due to a knee injury. Breithaupt Dep. 126:24-127:3; 130:11-21. 36. Ms. Breithaupt then received a severance package of $18,540. Breithaupt Dep. 131:18-22.

35. Admitted.

36. Admit in part, deny in part. Breithaupt did not "then" receive her severance (Sears appears to be referring its timeline allegations in UF 35). Rather, after Breithaupt told Sears that she had a health 24

36. Admitted.

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

Document 80-3

Filed 08/29/2005

Page 2 of 20

Defendant's Undisputed Facts

Plaintiffs' Response

Defendant's Reply

37. At the time she was interviewed for the new position, Ms. Breithaupt was 48. The people hired for the position for which she applied where Gunther Beckman age 61, Frank Weinzapfel age 57, and James Blankenship age 38. Brooks Aff. ¶ 20. 38. Mr. Weinzapfel scored 3.7 on his technical interview. Messrs. Beckman and Blankenship were not Thornton shop technicians, so they were not scored in this same interview process. However, Sears had previous experiences with both of them in other parts of the country and knew them to be highly competent electronics technicians. Ms. Brooks viewed their technical abilities as significantly superior to those of Ms. Breithaupt. Brooks Aff. ¶ 21.

problem that prohibited her from taking a field position, she was told that she had to provide Sears with an actual doctor's note that to that effect to be eligible for the severance, which she did. (Ex. 12, Breithaupt Depo, 158:1523.) 37. Admit. 37. Admitted.

38. Admit in part, deny in part. Beckman was apparently considered under the same interview process as Plaintiff, as he completed the same application form and was questioned by Brooks, herself, under the same leadership interview format as the Plaintiffs. (Ex. 25, Bates No. 05252, and Ex. 26, Bates Nos. 03058-03065, Ex. 2, Brooks 2005 Depo, 220:17-221:14.) Also, while the younger, outside candidate, Blankenship, was not scored under the same interview scoring sheet, he did take an actual repair skills exam as part of his application - an examination upon which he scored in one area as a "poor risk" for hire. (Ex. 23, Bates 25

38. Admitted. The only portion of this allegation that is denied is not directly disputed, but merely challenged for lack of foundation. As noted above, Ms. Brooks' affidavit is based on personal knowledge and she was involved in the selection process. Plaintiffs' allegation that Ms. Breithaupt had to train Mr. Blankenship is immaterial because Ms. Brooks did not have that information at the time she made her decision.

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

Document 80-3

Filed 08/29/2005

Page 3 of 20

Defendant's Undisputed Facts

Plaintiffs' Response

Defendant's Reply

39. Plaintiff Charles Green was a repair technician in the Thornton Mechanical Shop in November 1999. He applied for several positions in the new Aurora facility. Green Dep. 12:5-11; 65:18-22. 40. Under the 10 percent rule described above, Sears only considered Mr. Green for a position as a mechanical technician in the new facility. Brooks Dep. 65:2-10; 166:20167:10; Fanning Dep. 78:6-13; Brooks Aff. ¶ 22. 41. Mr. Green's leadership interview was conducted by Nancy Savard on January 25, 2000. Green Dep. 60:11-19 and Exhibit P.

No. 03180.) Further, Brooks' unsupported, vague, conclusory statement that Beckman and Blankenship were previously known, highly competent technicians, is inadmissible, as she has never asserted that she had personal knowledge of their prior performance (in fact, she conceded that she never worked with Beckman before) and, thus, had no foundation to make this statement. (Ex. 2, Brooks 2005 Depo, 220:8-18.) Further, it should be noted that Breithaupt had to train her replacement, Blankenship. (Ex. 12, Breithaupt 2005 Depo, 156:11-15; 191:18193:14.) 39. Admit. 39. Admitted.

40. Deny. See response to UF 11, above, and incorporated herein.

40. Undisputed that Ms. Brooks believed there was a 10 percent rule and applied it in a non-discriminatory manner.

41. Admit.

41. Admitted.

26

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

Document 80-3

Filed 08/29/2005

Page 4 of 20

Defendant's Undisputed Facts 42. He went into his interview with Ms. Savard believing that the redesigned process had many problems. Green Dep. 80:9-83:1; 144:3-152:25. Specifically, he was concerned about: (1) installers "wanting to be the boss" and taking too much responsibility, (2) technicians being the ones to have direct contact with the customers, and (3) continuing problems with having sufficient parts. Id. He admits that he may have raised these problems with Ms. Savard. Id. 43. Mr. Green testified that he went into his interview believing that Ms. Savard was rigid and hard to work for. Green Dep. 160:1-162:2. He questioned her about the redesigned process, and he became frustrated when she did not give him satisfactory answers to his questions. Id. 66:24-67:23; 135:8-136:6; 139:22-140:5; 152:12-24. In fact, he thought it was unprofessional that Ms. Savard, who was interviewing him, would not answer his questions. Id. 152:21-24. 44. Mr. Green's rating from the leadership interview was a "below acceptable" rating of 2.9, with "marginal" ratings in Change Leadership and Team Skills. The comment on Mr. Green's assessment form reads, "Charlie is Technically

Plaintiffs' Response 42. Admit in part, deny in part. Green's recollections regarding how he felt going into his deposition and during his deposition are irrelevant since there is no proof his interviewers or Brooks were aware of his thoughts. Further, Green did not recall discussing these concerns with Savard. (Ex. 4, Green Depo, 148:20149:16.)

Defendant's Reply 42. Admitted. Significantly, Green does not dispute that he expressed hostility to the new process during his interview with Savard.

43. Admit. This fact is irrelevant since Brooks never states that she had knowledge, or that the interview had knowledge, of the contents of these opinions Green said he had five years after he was interviewed when she made the decision not to hire him.

43. Admitted. These undisputed facts corroborate Ms. Savard's negative recommendation regarding Mr. Green.

44. Admit in part, deny in part. Plaintiff Green admits that he received the score as alleged; however, he denies that the interviewer placed the comment on his sheet, as inferred, with the notation "Charlie is technically sound, 27

44. Admitted. Plaintiffs' only dispute is with the source of the comment on Mr. Green's evaluation form. It appears to be from Ms. Savard, but the fact that it is on the evaluation form indicates that it was a concern in the minds of the

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

Document 80-3

Filed 08/29/2005

Page 5 of 20

Defendant's Undisputed Facts sound, but lacks the enthusiasm and team spirit that is needed for a redesigned unit." Exhibit Q.

Plaintiffs' Response

Defendant's Reply decision makers at the time the selections were made. Regardless of who wrote it, it confirms the reasons for Ms. Brooks decision. Mr. Green's positive attitude towards Mr. Garcia, does not dispute Ms. Savard's negative recommendation.

but lacks the enthusiasm and team spirit that is needed for a redesigned unit." (Ex. 6, Savard Depo, 100:15-20; 106:19-24; 107:24-108:3; Ex. 27, Bates No. 01584.) In fact, the redesign team member that conducted Green's "leadership" interview, denied at least three times in her deposition that she wrote that derogatory note on Green's interview score. (Ex. 6, Savard Depo, 97: 14-20; 100:15-20; 106:19-24; 107:24-108:3.) Further, Garcia, the other interviewer of Green, rated Green positively for his enthusiastic attitude and demeanor. (Ex. 28, Bates No. 0539.) 45. During the conference call 45. Deny. The only to discuss applicants, Ms. evidentiary source for this Savard conveyed to Ms. factual allegation is, again, Brooks that Mr. Green was not Brooks' affidavit, which supportive of the redesigned contains inadmissible hearsay process. Brooks Aff. ¶ 23. as to what Savard said or did not say on that call. Savard could not state one way or the other whether she did or did not recommend Green for hire, and she could not confirm Brooks' assertion that she had not recommended Green hire even after reviewing her own interview scoring sheet on Green. (Ex. 6, Savard Depo, 97:14-20.) 46. Mr. Green also told Ms. 46. Deny. Green did not tell Brooks outside of the Brooks outside of the interview process that he did interview process that 28

45. Undisputed. Plaintiffs do not actually deny this allegation, they merely assert lack of foundation. Mr. Brooks, however, was on the conference call and she has a complete foundation to testify as to what transpired there. Her statements are not hearsay because they go to her state of mind.

46. Undisputed. Mr. Green candidly admits that he told the decision maker that he had

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

Document 80-3

Filed 08/29/2005

Page 6 of 20

Defendant's Undisputed Facts not think the redesigned repair process could ever work. Brooks Dep. 61:7-20; 62:2563:2; 214:2-5.

Plaintiffs' Response redesign repair process could not ever work, rather, he said that he had concerns about the process. (Ex. 4, Green Depo, 58:2-60:4.)

Defendant's Reply concerns about the process. That fact, coupled with the undisputed negative recommendation from Savard, confirms the undisputed reasons for Ms. Brooks' decision. The level of hostility Mr. Green expressed towards the process to Ms. Brooks is not material. 47. Undisputed. As noted above, Ms. Brooks' affidavit is based on personal knowledge and the alleged hearsay statements are not offered for their truth, but rather for her state of mind. As set forth in Sears' Reply Brief at II. E. 2., Ms. Brooks' reasons have been consistent.

47. As a result of Mr. Green's leadership interview, the report on that interview during the conference call, and Mr. Green's separate comments to Ms. Brooks, Ms. Brooks did not select him for a mechanical technician position in the new facility because she did not believe he would be supportive of the assembly line process. Brooks Dep. 61:7-20; 62:17-20.

47. Deny. The only evidentiary source for this factual allegation is, again, Brooks' affidavit, which contains inadmissible hearsay as to what Savard said or did not say on that call. Significantly, Savard could not state one way or the other whether she recommended Green for hire, and she could not confirm Brooks' assertion that she had not recommended Green for hire, even after reviewing her own interview scoring sheet on Green. (Ex. 6, Savard Depo, 97:14-20.) Further, the reasons now given by Brooks for failing to hire Green are different from the reason previously provided by Sears to the EEOC Investigator. Now, Brooks claims it was because of the results of Green's "leadership interview, the report on that interview during the conference call, and Mr. Green's separate comments to Ms. Brooks" that Brooks based her belief that he was 29

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

Document 80-3

Filed 08/29/2005

Page 7 of 20

Defendant's Undisputed Facts

Plaintiffs' Response not a good candidate, while in their Position Statement, Sears first said "Mr. 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). During her deposition, Brooks stated that, in addition to interview information, she also considered past performance of all of the candidates, and she 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.) Green's last performance review was quite high specifically, he received a 3 score overall and scored a 4 in the leadership category, in particular. Ex. 30, Green Performance Evaluation, Sears Bates #1575-1576. Further, Brooks' latest 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, where she stated that she thought some of the concerns Green raised to her 30

Defendant's Reply

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

Document 80-3

Filed 08/29/2005

Page 8 of 20

Defendant's Undisputed Facts

Plaintiffs' Response about the redesign process were "legitimate," and that she knew he had been involved in the same process that had not worked out in Thornton. (Ex. 2, Brooks 2005 Depo, 61:2513.) She also admitted 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 had indicated being uncomfortable about the redesign process, 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.) Finally, Brooks conceded that "leadership skills" are subjective. (Ex. 2, Brooks 2005 Depo, 85:11-13.) 48. Admit in part, deny in part. Plaintiffs admit the first sentence. Plaintiffs deny the remaining sentences, as the stories provided by the affiants identified, Brooks, Mufic and Fanning, regarding how they all came to the understanding that Green was medically unable to work outside of the shop, are inconsistent and include the specific reference to an alleged medical note they claim he provided, which Sears has never been able to 31

Defendant's Reply

48. Mr. Green has testified that he was interested in a field technician position at the time he was not selected for Aurora. Green Dep. 167:17168:1. However, it is undisputed that the people responsible for hiring field technicians believed that Mr. Green was not able, for medical reasons, to go into the field. Brooks Aff. ¶ 24; Frank Mufic Dep., Exhibit R; 94:195:4; Fanning Dep. 63:5-8; 64:22-65:1; 65:7-9. Medical

48. Undisputed. Whether or not Mr. Green was able to go in the field is in dispute. However, it is not disputed that Ms. Brooks, Ms. Fanning and Mr. Mufic all believed that he was not able to go into the field. Def's Ex. A ¶ 24; Pl's Exs. 31,10. It is similarly undisputed that Sears needed field technicians and would have hired Mr. Green if it believed he was able to work. Pl's Exs. 31,10

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

Document 80-3

Filed 08/29/2005

Page 9 of 20

Defendant's Undisputed Facts problems had previously prevented Mr. Green from working in the field. Green Dep. 34:1-14. Sears needed field technicians during this time and would have hired Mr. Green if the company had known he was interested and able to work in the field. Mufic Dep. 99:3-5; 102:7-10; Fanning Dep. 77:2-10.

Plaintiffs' Response produce and, which Green specifically denies ever being asked to produce. For example, Brooks testified that Fanning and Mufic offered Green the Field Technician 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 she actually saw a doctor's note excusing Green from the position and that some document excusing Green from the position existed, although she later contradicted herself. (Ex. 10, Fanning Depo, 59:18-60:4, 64:22-65:1, 63:5-9.) Mufic says he never saw a note. (Ex. 31, Mufic Depo, 96:2-20.) Mufic also testified that he spoke to Green directly and that Green said he would bring in a note excusing from taking the field position. (Ex. 31, Mufic Depo, 95:16-96:20.) Mufic agreed that Green had to present a note to be excused from the field position or he would not be eligible for the severance package. (Ex. 31, Mufic Depo, 96:15-20.) Fanning testified Green could not have received the severance package (also called the RI package) with 32

Defendant's Reply

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

Document 80-3

Filed 08/29/2005

Page 10 of 20

Defendant's Undisputed Facts

Plaintiffs' Response out presenting a note excusing him from their offer of field technician position. (Ex. 10, Fanning Depo, 58:10-59:12.) Fanning specifically recalls telling Green about the open field technician positions, but does not remember what he said in response to receiving that information and cannot say that he told her he could not do the job. (Ex. 10, Fanning Depo, 63:10-64:21; 65:10-21.) Further, this alleged excuse for not placing Green in an outside repair position was not included in Sears' first explanation of events it submitted to the EEOC Investigator, but was included in Sears' explanation of why it failed to hire the remaining older employees that actually did have a medical issue preventing them from working in the field. (Ex. 19, Sears' Wentland Position Statement, pg. 4; Ex. 22, Sears' Breithaupt Position Statement, pg. 4; Ex. 32, Sears' Stear Position Statement, pg. 5). Finally, Plaintiffs deny the last sentence, as Brooks testified that Green had actually been offered a position in the field by these very two individuals. (Ex. 2, Brooks 2005 Depo, 67:8-15.) Sears also asserts in its UF 48 that "Medical problems had previously 33

Defendant's Reply

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

Document 80-3

Filed 08/29/2005

Page 11 of 20

Defendant's Undisputed Facts

Plaintiffs' Response 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 they chose not offer him a field condition. (Ex. 4, Green Depo, 34: 134:21.) 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. 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. Clearly, a reasonable jury could infer that these disjointed events, that occurred 15 years before he was not selected for a position at the Aurora Repair Facility, do not support these three witnesses' "good faith belief' that he was physically unable to do technician work in the field as opposed to in the shop at Thornton. 49. Admit.

Defendant's Reply

49. Mr. Green received a severance package of $19,831, and he took early retirement benefits. Green Dep. 186:4-7; 243:4-7. 50. Mr. Green was 59 at the 50. Admit in part, deny in time he applied for a part. Reavis was hired in a mechanical technician position different, part-time technical 34

49. Admitted.

50. Admitted.

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

Document 80-3

Filed 08/29/2005

Page 12 of 20

Defendant's Undisputed Facts in Aurora. Sears hired Wanda Reavis age 52, Kris Dean age 24, Stan Kossman age 44 and Josie Padilla age 39. Brooks Aff. ¶ 25. 51. Green scored 2.9 in his leadership interview. Three of the people hired scored as follows: Reavis 3.2, Dean 3.4, Kossman 3.7. Brooks Aff. ¶ 26.

Plaintiffs' Response position. (Ex. 22, Brooks 2002 Depo, 110:10-22.)

Defendant's Reply

52. Ms. Padilla was also hired for the mechanical technician position. Her score is somewhat unclear in that she was given multiple scores of both `2' and `3' in several areas so that she received either a 3.0 or a 2.9, depending on how the scores are averaged. Exhibit S. Assuming for purposes of summary judgment that Ms. Padilla received a leadership score of 2.9, Ms. Brooks nonetheless considered her a superior candidate to Mr. Green for several other reasons. Unlike Mr. Green, Ms. Padilla scored at acceptable levels in Change Leadership and Team Skills. Her leadership interview reflected that she did well supervising her interviewer in a role play exercise and that she felt like she could work with others. Brooks Aff. ¶ 27.

51. Admit. However, this list is incomplete, as it fails to include the score Padilla received on her leadership interview, which Sears concedes that, for purpose of summary judgment, was the exact same score as Green. (UF 52.) 52. Admit in part, deny in part. 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 then other criteria considered by the interviewers and that one would have to ask the interview team members. (Ex. 2, Brooks 2005 Depo, 216:18217:12.) Yet, now she claims she hired Padilla over Green because Padilla did better on two (2) of the nine (9) criteria given equal weight on the actual interview form. (Ex. 33, Bates No. 04185.) Brooks now claims that she not only knew 35

51. Admitted. Ms. Padilla is discussed below.

52. Admitted and undisputed. Ms. Brooks knew Mr. Green could work on "almost anything," but it is undisputed that he preferred not to work on lawnmowers. Sears does not claim the criteria were weighted differently. Ms. Brooks did testify that she had concerns based on the report of Mr. Green's willingness to lead a team in the new system. The report on those issues is corroborated by and reflected in the Change Leadership and Team Skills scores. Plaintiffs' characterization of Ms. Padilla's leadership interview score is not accurate. The forms speak for themselves, but a comparison of Mr. Green's and Ms. Padilla's leadership interview forms, applying the same

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

Document 80-3

Filed 08/29/2005

Page 13 of 20

Defendant's Undisputed Facts

Plaintiffs' Response that different categories of criteria were "weighted" differently, but that she actually applied this "weighting" of criteria when selecting Padilla over Green. Brooks and Perry also testified that "leadership skills" are subjective. (Ex. 2, Brooks 2005 Depo, 85:11-13; Ex. 3, Perry Depo, 88:22-89:6.) Brooks' notes summarizing the interview scores of the interviewers (Ex. 31, Bates No. 05251) conveniently contains an error as to Padilla's interview scores -- in Padilla's favor. In Padilla's leadership interview, she either received an average score of 2.8 or 2.9, depending on how the calculation was performed (Ex. 34, Bates No. 04185). In Brooks' summary, Padilla's score is listed as a 3.0. (Ex. 21, Bates No. 05251.) Further, the notes allegedly taken by Padilla's leadership interviewer, Steve Courier, show 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, when he asked Padilla about how she worked with coworkers, she responded that 36

Defendant's Reply averaging rules, shows they essentially received the same overall score. Ms. Brooks' summary accurately records Ms. Padilla's overall score at 3.0 under one method of calculating scores.

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

Document 80-3

Filed 08/29/2005

Page 14 of 20

Defendant's Undisputed Facts

Plaintiffs' Response

Defendant's Reply

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.) Further, Bob Garcia, the team member that conducted Padilla's technical interview, marked the option "hold pending additional interviews." (Ex. 34, Interview Scoring Sheet, Bates No. 4186.) 53. Admit in part, deny in 53. In addition, Ms. Brooks part. The only "evidence" to believed that Ms. Padilla was support Sears' (and more willing to work on specifically Brooks') claim lawnmowers than Mr. Green. Sears consistently needs more that Brooks "believed that L&G technicians every Spring Padilla was more willing to work on lawn mowers than to repair lawnmowers. Ms. Mr. Green," is Brooks' Padilla had been working on lawnmowers and had actually unsupported and unfounded assertion. No written applied for a position in the L&G department. Brooks Aff. documents, no notes of conversations, no indications ¶ 28. Mr. Green, in contrast, of conversations about this did not like working on lawnmowers, and, although he topic on the interview sheets were attached in support of applied for several jobs in Aurora, he did not apply for a Sears' Motion. Sears offers no evidence that Brooks even had position in the L&G first-hand knowledge of this department. Green Dep. assertion. Further, Sears 126:22-24. Mr. Green told claims that Green did not like Ms. Brooks that he did not like working on lawnmowers. working on lawn mowers (citing an opinion he gave Brooks Aff. ¶ 29. years after his termination, in his deposition), but offers no particular details to support Brooks' general statement that Green told her, although no 37

53. Admitted. Ms. Padilla's willingness to work on lawnmowers is confirmed by her application for a position in lawn and garden, the one position for which Mr. Green did not apply. Further, Plaintiffs admit that in his depo, Green testified that he did not like working on lawnmowers. Nor is it disputed that Padilla had much more experience working on lawnmowers than Green.

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

Document 80-3

Filed 08/29/2005

Page 15 of 20

Defendant's Undisputed Facts

Plaintiffs' Response

Defendant's Reply

54. Ms. Brooks perceived Ms. Padilla as a more qualified mechanical technician than Mr. Green for the new facility because she had better leadership and teamwork skills, she was more

date is given as when, where or in what context, that Green did not like to work on lawn mowers. Further, Brooks did not disclose the extraneous conversations at all, much less state that they were a factor she considered in deciding to hire or not hire Green and Padilla. Rather, she stated only that she and the redesign team looked at her interview performance, work performance and prior mechanical experience. (Ex. 2, Brooks 2005 Depo 81:9-17, 83:5-22.) Moreover, Green denies making the statement that he would not work on lawnmowers. (Ex. 37, Green Affidavit, ¶ 1.) Finally, 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 and still said nothing about a conversation that she had with him in which he said he did not want to work in one of these other areas. (Ex. 2, Brooks 2005 Depo, 71:13-28.) 54. Admit in part, deny in 54. Admitted. Significantly, part. See Response to Plaintiffs do not deny Ms. Undisputed Fact Nos 51-53. Brooks' perception of Ms. Padilla's relative strengths over Mr. Green.

38

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

Document 80-3

Filed 08/29/2005

Page 16 of 20

Defendant's Undisputed Facts supportive of the new process than Mr. Green, and she was more willing to work on lawnmowers, if necessary. Brooks Aff. ¶ 30. 55. Each of the Plaintiffs testified that he or she has no facts suggesting that the decision-makers in this case were biased against older workers. Wentland Dep. 159:7-160:12; Breithaupt 157:24-158:6; 163:20-164:12; Green Dep. 153:4-155:25; 230:3-13.

Plaintiffs' Response

Defendant's Reply

55. Deny. Plaintiffs were deposed first in this case and at the time Plaintiffs were deposed, Plaintiffs were not sure who the decision maker was. (Ex. 4, Green Depo, 226:14-227:13, 228:17-229:4; Ex. 5, Wentland Depo, 241:510, 248:25-251:11; Ex.12, Breithaupt Depo, 164:23165:7, 166:11-167:5). Further, Plaintiffs were confused by counsel's insistence on using the word "facts" and asked repeatedly for clarification of what he meant. (Ex.4, Green Depo, 153:4-17; Ex. 5, Wentland Depo, 59:7-22; Ex. 12, Breithaupt Depo, 263:2264:16.) However, each plaintiff testified that they believed the decisions made regarding who to hire were discriminatory. (Ex. 4, Green Depo, 153:4-17; 228:17229:4; Ex. 5, Wentland Depo, 160:13-161:1; 164:7-164:25.) See, also, Plaintiffs' EEOC Charges claiming they were discriminated against in not getting hired at the Aurora Repair Center. (Ex. 38, Bates Nos. EEO Charges.) 56. Plaintiffs have no evidence 56. Deny. Each of the of ageist comments by either plaintiffs' testified that Brooks 39

55. Undisputed. Plaintiff's try to explain why they testified under oath that they have no facts, they do not deny the lack of existence of such facts.

56. Undisputed. Plaintiffs' citation to the record are

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

Document 80-3

Filed 08/29/2005

Page 17 of 20

Defendant's Undisputed Facts Stephanie Brooks or any members of the redesign team. Wentland Dep. 160:9-12; Breithaupt Dep. 158:3-6; Green Dep. 226:16-18; 226:24-227:18. 57. Each of the Plaintiffs testified that the only facts indicating age discrimination were their perceptions that the selection process for the new Aurora facility resulted in older workers losing their jobs. Wentland Dep. 160:13161:1 168:23-169:7; Breithaupt Dep. 164:13165:10; Green Dep. 102:1114; 191:23-192:7; 226:16229:9. 58. As summarized below, Sears had 13 shop technicians in Thornton in November 1999. Of those 13, nine applied for positions at the new facility, and four were hired. Two of the four selected were over 50, and two were over 40. Brooks Aff. ¶ 31. Breithaupt, 48, Not selected, offered another position she was unable to perform Wentland, 53, Not selected, offered another position he was unable to perform Green, 59, Not selected, believed to be uninterested in other jobs Shioshita, 35, Not selected, transferred to another position Stear, 53, Not selected,

Plaintiffs' Response told them they were not getting an offer because they "did not fit." (Ex.38, EEO charges.) See DF68, below, and incorporated herein. 57. Admit in part, deny in part. Plaintiffs gave additional reasons as well. (Ex. 4, Green Depo, 226:14-227:13; Ex. 5, Wentland Depo, 241:5-10, 248:25-251:11; Breithaupt Depo, 164:23-165:7, 166:11167:5).

Defendant's Reply inaccurate. Plaintiffs did not allege any such comments. Same cites as in 6 above.

57. Admitted. Plaintiffs' did not give additional reasons and their depositions speak for themselves. However, Plaintiffs' beliefs are immaterial at this point. The parties agree that the only issue on summary judgment is whether Sears' stated reasons are its actual reasons.

58. Deny. The only evidentiary support for this factual assertion is, again, Brooks' affidavit. She was not the manager of Thornton at the time of the redesign and did not supervise any shop technicians at that time. Her affidavit is silent as to how she had the personal knowledge to make this assertion and, on what foundation the alleged figures are based. First, 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 excluded from the chart, without explanation, as to why Sears chose to group only 40

58. Undisputed. Plaintiffs challenge to foundation does not raise factual issues. Any other facts that Sears could have included are immaterial as Plaintiffs have apparently abandoned any attempt to raise an inference of discrimination through an impact analysis.

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

Document 80-3

Filed 08/29/2005

Page 18 of 20

Defendant's Undisputed Facts offered another position at higher salary Weinzapfel, 57, Hired as Electronics technician Ballou, 43, Hired at Team Lead Reavis, 52, Hired at Mechanical Technician Kossman, 44, Hired as Mechanical Technician Spenner, 64, Withdrew his name during interviews Dobbins, 56, Withdrew her name during interviews Slabodnick, 39, On disciplinary action, not eligible for new position McReynolds, 52, On disciplinary action, not eligible for new position

Plaintiffs' Response those select few together. (Ex. 24, Brooks 2002 Depo, 37:438:25.) Sears' new group 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. To fit the legal theory supporting their interests at that time, Sears argued emphatically 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 to Wentland. Id. Accordingly, Brooks' chart is inaccurate. Notably missing from the chart are a number of older workers and Josie Padilla, the younger technician working in Thornton in the mechanical shop, although still classified as a Lawn & Garden Shop, who was hired instead of Green. (Ex. 18, Figueroa Depo, 85:7-86:7.) 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 missing from Sears' 41

Defendant's Reply

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

Document 80-3

Filed 08/29/2005

Page 19 of 20

Defendant's Undisputed Facts

Plaintiffs' Response applicant "chart." (Ex. 2, Brooks 2005 Depo, 11:5-9, 51:19-52:1, 53:1-11.) Alden Lindekugel was another technician, approximately 65 years of age, who left the company "voluntarily" during the reorganization since his technician job was also being eliminated, but he is also not listed on her listed of impacted technicians. (Ex. 2, Brooks 2005 Depo, 57:1-1.) Young Kris Dean, who was 24 when he was hired from the outside for one of the Mechanical Positions for which Green and Stear applied, is also missing from the list. (UF 50.) Further, none of the Lawn & Garden technicians who had their jobs eliminated with Wentland or were hired instead of Wentland are listed on her chart, including the two younger employees -- Lang (age 35) and Schley (age 41). Moreover, the age of outside technician applicants that competed for and received these positions, such as James Blankenship (age 38), are also excluded from the chart, so the chart does not paint an accurate picture of who applied and who received positions at the Aurora Repair Center. See UF 37. Further, the chart fails to mention that Reavis was hired for a parttime position - it is undisputed 42

Defendant's Reply

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

Document 80-3

Filed 08/29/2005

Page 20 of 20

Defendant's Undisputed Facts

Plaintiffs' Response that the Plaintiffs applied for only full-time positions. (Ex. 2 Brooks 2005 Depo, 90:10-11.) 59. Deny. Technicians were not ineligible because they were on a PIP plan. They were only ineligible if they received a "2" or below on their preceding performance evaluation. (Ex. 11, Bates No. 0214.)

Defendant's Reply

59. Although Technicians Carol Dobbins and Norbert Spenner applied for positions, they both disqualified themselves and opted instead to retire. Spenner Decl. ¶ 5; Brooks Aff. ¶ 32. Two other Technicians, Curtis McReynolds and Craig Slabodnick, were on Performance Plans for Improvement ("PPI's") and, although they applied, were ineligible for positions at the Aurora facility. Brooks Aff. ¶ 33. 60. Sears also hired technicians from other Sears' facilities and from outside the company. Of those hired, two were over 60: Beckman 61, Ayearst 60.

59. Undisputed. It is not disputed that neither Mr. McReynolds nor Mr. Slabodnick were considered for the new facility because of their past performance. Any disputes on this point are not material.

60. No cite to the record, as required by the Court's rules for summary judgment motions, and is thus denied.

60. Undisputed. UF ¶ 24 from Aff. of S. Brooks in support of Defendant's Cross Motion for Summary Judgment on Validity of Plaintiffs' Releases.

43