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. ________________________________________________________________________ DEFENDANT SEARS' REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ________________________________________________________________________ Defendant Sears, Roebuck & Co. ("Sears") submits this Reply Brief in support of its Motion for Summary Judgment. INTRODUCTION In a transparent attempt to create the appearance of factual issues where none exist, Plaintiffs submitted a 120-page "brief" opposing summary judgment. However, none of the alleged factual issues Plaintiffs raise are material for one simple reason: They do not dispute that Ms. Brooks' decisions were based on reports to her about each of Plaintiffs' poor performances during their interviews for the new facility and her perceptions of Plaintiffs' capabilities based on those reports. Ms. Brooks perceived that Mr. Wentland did not want the job, that Ms. Breithaupt had failed her technical interview, and that Mr. Green was hostile towards the new assembly-line approach. Plaintiffs may dispute the accuracy, the fairness, or the wisdom of these assessments,

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but they do not dispute that these were, in fact, Ms. Brooks' actual perceptions or that Ms. Brooks based her hiring decisions on them. Accordingly, Plaintiffs cannot dispute Sears' non-discriminatory reasons for its decisions and summary judgment should be granted dismissing Plaintiffs' claims. UNDISPUTED FACTS Sears has compiled a chart, Exhibit T hereto, that provides Sears Undisputed Facts, Plaintiffs' Response and Sears' Reply. Exhibit U hereto sets forth Plaintiffs' Statement of Disputed Facts and Sears' Responses to those. As set forth in the discussion, despite the volume of their presentation, Plaintiffs fail to present any material disputed facts. DISCUSSION I. THE PARTIES AGREE ON THE LEGAL FRAMEWORK. Plaintiffs concede that they have no direct evidence of age discrimination. Rather, they rely on the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-04 (1973). Sears has articulated legitimate, non-discriminatory reasons for its decisions. The issue therefore is whether Plaintiffs have presented facts sufficient to raise an inference that Sears' articulated reasons are not the company's real reasons, i.e., that they are lies asserted to cover up discrimination. II. PLAINTIFFS CANNOT DISPUTE SEARS' REASONS FOR NOT HIRING THEM. A. Sears' Non-Discriminatory Selection Process is Undisputed.

Significantly, Plaintiffs do not offer any facts placing in dispute the process by which Sears made its decisions concerning whom to hire for the new facility. Plaintiffs do not dispute that: (1) Sears went through an interview process for hiring technicians to fill positions at the 2

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new facility. (2) Sears brought in a redesign team of four people to conduct leadership and technical interviews. (3) Following the interviews the team held a group discussion of the candidates on a conference call to discuss the results of the interviews. (4) Ms. Brooks was the ultimate decision maker with the group reaching consensus on the candidates. (5) Ms. Brooks relied on the candidates' performance in the interviews as conveyed to her by the redesign team.1 UF ¶¶ 4-10. Thus, at the outset, Plaintiffs face a significant burden. They cannot and do not dispute that Sears went through a selection process carefully designed to use legitimate, nondiscriminatory, business criteria. They assert, nonetheless, that the outcome of this undisputed and carefully designed process was all a sham and that the company's articulated reasons resulting from this process were mere fabrications designed to cover up discrimination. As set forth below, no facts support this position. B. Plaintiffs Raise Only One Argument.

Plaintiffs make only one argument: Sears' articulated reasons for not hiring them must be lies fabricated to cover up discrimination because they are weak, inconsistent, or contradicted. However, as a matter of law, not every weakness, inconsistency or contradiction raises a factual issue sufficient to defeat summary judgment. See Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995); cf. Simms v. Oklahoma, 165 F.3d 1321, 1329 (10th Cir. 1999)(procedural irregularities did not support inference of pretext.) Rather, the alleged weaknesses,
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Plaintiffs' only challenge to these undisputed facts is that Ms. Brooks' affidavit lacks foundation. However, affidavits are valid evidence to support summary judgment See Fed. R. Civ. P. 56(c). Indeed, Plaintiffs submitted affidavits of their own. Ms. Brooks' affidavit states she has personal knowledge of the matters asserted, and Plaintiffs own brief repeatedly confirms that she was the decision maker with personal knowledge of and involvement in the process.

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inconsistencies or contradictions must call into question whether the company's stated reasons are its real reason. Id. Here, Plaintiffs' purported inconsistencies and contradictions either don't exist, or they are not facts indicating that Sears' stated reasons for its decisions are false. C. No Facts Dispute Sears' Reasons for Not Selecting Wentland. 1. The material facts are not disputed.

The undisputed facts are as follows: (1) Mr. Wentland went through both a leadership interview and a technical interview. (2) During his leadership interview, Mr. Wentland told his interviewer, Mr. Perry, that he did not want the job. (3) Mr. Wentland's leadership score was below "acceptable" at 2.7. (4) Both interviewers recommended that Mr. Wentland not be hired for the new facility and both of these recommendations were conveyed to Ms. Brooks. (5) Mr. Perry conveyed Mr. Wentland's disinterest in the job to Ms. Brooks during the conference call. (6) These negative recommendations and Mr. Wentland's desire not to work in the new system resulted in Ms. Brooks' decision not to hire him. (7) One of the technicians Ms. Brooks hired was older than Mr. Wentland. Ex. T at ¶¶ 8, 20-21, 23, 26, 29. 2. No inconsistencies or contradictions exist that dispute Sears' stated reasons for not hiring Mr. Wentland.

Plaintiffs argue first that Sears' stated reasons for not selecting Mr. Wentland have changed over time. Not so. To the EEOC, Sears stated that "Wentland made it clear to his supervisors and peers that he would rather take the RI package than a new position with Sears" and that his Leadership Interview revealed that he lacked "a legitimate interest in even working at the new facility." Pl.'s Ex. 19 at 4. Dan Perry, who conducted Mr. Wentland's Leadership Interview, testified that during the interview, Wentland "told me point-blank that he wanted the buyout" and that "[i]f someone told me they wanted the buyout, I don't see how there possibly -4

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if they don't want to be in the new thing, I don't see how they're going to be able to function in that environment." Pl.'s Ex. 3 at 72:4­5; 73:8­10. Accordingly, on his interview form, Perry noted that Wentland was not interested in the team concept and gave him a low interview score. Id. 74:6­8. In Brooks' affidavit, she states that "Sears' decision not to hire Mr. Wentland ... was based on his attitude towards the new process, his statements that he didn't want the job, his indications that he wanted a severance package, and the resulting two "no offer" recommendations from his interviews." Def.'s Ex. A at ¶ 17. Plaintiffs also claim that Sears has stated that Mr. Wentland was technically incompetent, and that Sears has proffered his incompetence as a reason he was not hired. This is wrong and unsupported by the record. In fact, the cited testimony involves Brooks' answer to the question of why she did not fight with the interview team for Mr. Wentland's hiring in the face of their no-hire recommendation. Pl.'s Ex. 2 at 73:4 ­ 74:7. This is nothing but a straw man -- neither Sears nor Brooks has stated that Mr. Wentland was terminated for inferior technical skills. Plaintiffs argue second that Mr. Garcia's failure to note Mr. Wentland's disinterest in the new facility somehow rebuts the fact that Mr. Wentland made this comment to Mr. Perry. Again, this raises no material issues of fact. The comment to Mr. Perry remains unrebutted. Mr. Wentland testified that he did not remember anything about that conversation, so he has no basis to rebut Mr. Perry's testimony. Pl.'s Ex. 5 at 112:20-113:18. Mr. Wentland cannot now change his account that he did not remember anything about that conversation. UF ¶ 22; See also Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (party cannot create a fact issue "merely by submitting an affidavit contradicting his own prior testimony."). If anything, Mr. Garcia's notes and recommendation corroborate Sears' undisputed facts on this point.

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Mr. Garcia recommended "no offer," noting that Mr. Wentland's interest in the new facility was "marginal" and that he "would not be happy at the GRC." UF ¶ 23. Plaintiffs argue third that Perry did not note on his written evaluation that Mr. Wentland would not be interested in working at the new facility. However, absence of a note does not rebut Mr. Perry's sworn and undisputed testimony. Moreover, Mr. Perry's evaluation form does, in many ways, reflect Mr. Wentland's comments: it rates him at 2.7 in leadership; it notes he would not be interested in the team concept; and it recommends "no offer." UF ¶ 21. D. No Facts Dispute Sears' Reasons for Not Selecting Ms. Breithaupt. 1. The material facts are not disputed.

Sears' opening brief established the following undisputed facts: (1) Ms. Breithaupt was interviewed twice, including a technical interview. (2) During her technical interview, Ms. Breithaupt answered a question incorrectly, and she stated that she relied on a diagnostic technique different than the one used by the interviewer, Mr. Currier. (3) Ms. Breithaupt's technical interviewer gave her a below "acceptable" score of 2.7. (4) Ms. Brooks viewed Ms. Breithaupt as a good candidate and wanted to hire her. (5) During the telephone conference to discuss Ms. Breithaupt, her technical interviewer, Steve Currier, told Ms. Brooks that Ms. Breithaupt lacked the necessary technical skills. (6) Ms. Brooks' decision not to hire Ms. Breithaupt was based on this report in the telephone conference. (7) Ms. Brooks hired three electronics technicians to fill the positions at the new facility, two of whom were older than Ms. Breithaupt. UF ¶¶ 32-34, 37. Given these undisputed facts, there is simply no question that Ms. Brooks' stated reasons for not hiring Ms. Breithaupt were her real reasons, not lies to cover up age discrimination.

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2.

No inconsistencies or contradictions rebut the fact that Sears' decision regarding Ms. Breithaupt was based on her poor technical interview.

Plaintiffs argue first that Sears' inconsistent and varying reasons for not selecting Ms. Breithaupt raise questions about whether her poor technical interview was the true basis for Sears' decision. However, review of the record shows Sears' consistency on this point. In its EEOC position statement, Sears stated that "Ms. Breithaupt, like all the Service Techs under consideration, underwent a technical interview designed to demonstrate her abilities to diagnose and repair appliances ... As a result of her low scores in technical ability, Ms. Breithaupt was not offered a position at the new facility." Pl.'s Ex. 22 at 4. In her deposition, Brooks testified that during the technical interview of Breithaupt, "her technical ability .... was called into question. So it's --- my impression was that her abilities as an electronics tech were inferior to other candidates." Pl.'s Ex. 2 at 110:5­7. Brooks then testified that "[d]uring the interview, there [were] questions ­ specific questions given where she needed to give examples, and apparently there were a couple of incorrect responses during that." Id. 110:12­15. In its Statement of Undisputed Facts, Sears sets forth this exact same reason that Breithaupt was not hired. UF ¶ 34. Plaintiffs argue second that the only testimony on the record is Ms. Breithaupt's account that she did not even undergo a technical interview. This is absurd. Plaintiffs argue elsewhere that Ms. Breithaupt did well in her technical interview, thereby confirming that it occurred. There is an interview schedule, an evaluation and Ms. Brooks testified about the technical questions with a separate interviewer. Interview Schedule, attached hereto as Exhibit V; Pl.'s Ex. 56; Pl.'s Ex. 2 at 60:25-61:6. Ms. Breithaupt's real complaint is that she did not believe the technical interview adequately represented her abilities. While this may or may not be right,

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Ms. Briethaupt's disagreement about Sears' process does not raise a factual issue, see Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988), nor does it dispute that the results of Ms. Briethaupt's technical interview ­ accurate or not ­ were conveyed to Ms. Brooks who based her decision on that report. Ms. Brooks' testimony that she received such a report and that she relied on it are not in dispute. Plaintiffs argue third that Ms. Brooks' testimony that she was the decision maker is inconsistent with testimony that the group reached consensus on the candidates. These are not inconsistent. Ms. Brooks was the ultimate decision-maker, and her decisions were supported by the consensus of the group. Where, as here, she initially supported a candidate, the group consensus changed her perception and she agreed ­ that's what consensus decisions are. Plaintiffs allege fourth that in Breithaupt's technical interview, Sears simply got it wrong, and that the interview was insufficient to test Breithaupt's technical skills. Opp. p. 97. However, even Breithaupt herself acknowledges that she answered questions incorrectly in the technical interview. UF ¶ 33. More importantly, Breithaupt's unsupported self-assessment of her performance during the interview is insufficient as a matter of law to raise a genuine issue of material fact. See Furr v. Seagate Technology, Inc., 82 F.3d 980, 988 (10th Cir. 1996). It remains undisputed that her interviewer rated her as technically unacceptable, that he communicated that assessment in the decision making process and that this was ultimately the basis for not selecting her. Plaintiffs argue fifth that Ms. Breithaupt had a history of good technical performance. Assuming, arguendo, that this is true, it does not rebut the fact that Ms. Brooks perceived that

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Ms. Breithaupt's technical interview was "unacceptable" and she based her decision not to hire Ms. Breithaupt on that interview, not her age. 3. Hiring Mr. Blankenship does not rebut Sears' reasons for not selecting Ms. Breithaupt.

Plaintiffs allege that Ms. Brooks' decision to hire Mr. Blankenship, despite his weak technical skills, indicates that Ms. Brooks did not really care about technical weakness in hiring electronics technicians. The undisputed facts do not support any such inference. It is undisputed that Sears went through a two-step hiring process for electronics technicians. It first assessed the capabilities of its existing technicians from the Thornton shop, including Ms. Breithaupt. If those candidates were perceived to be lacking in the necessary skills, Sears then looked outside the Thornton shop. Mr. Blankenship was hired in this second step of the process. UF ¶ 12. Ms. Brooks is not herself an electronics technician. So, in the first step in the process, she relied on Mr. Currier's recommendation about Ms. Breithaupt's technical abilities. It is undisputed that Mr. Currier recommended against hiring Ms. Breithaupt. In the second step of the hiring process, Virginia Ballou, the team lead over electronics technicians, recommended hiring Mr. Blankenship. Thus, Ms. Breithaupt and Mr. Blankenship could not be more dis-similarly situated in Ms. Brooks' undisputed perception: In one case, an expert recommended against hiring, in the other she recommended in favor of hiring. Thus, it remains undisputed that Ms. Brooks' decision was based on her perception of their respective technical abilities and Plaintiffs do not raise a factual issue. See Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 532 (10th Cir. 1994) (comparative analysis does not demonstrate discrimination unless the comparators are similarly situated employees).

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4.

Offering Ms. Breithaupt a field technician position does not demonstrate that she was viewed as qualified to repair electronics in the shop.

Plaintiffs argue that Sears' offer to Ms. Breithaupt of a field technician position demonstrates that the company viewed her as a technically competent electronics technician because field technicians' positions require "similar" technical repair skills. This argument fails, however, because it grossly mischaracterizes the record of undisputed facts. The deposition citation on which Plaintiffs rely actually states that field technicians are required to have slightly less technical skill. Pl.'s Ex. 2 at 157:1-11. More importantly, Plaintiffs have offered no facts, because none exist, that Ms. Breithaupt was offered a job in the field working on electronics. Sears' job posting for this position at this time consisted exclusively of laundry and cooking repair, and Sears offered to train appropriate candidates. District 8181 Job Openings, attached hereto as Exhibit W. Ms. Breithaupt's testimony confirms that the job she was contemplating in the field was working on cooking and laundry equipment. Pl.'s Ex. 12 at 28:5-17; 130:13-25; 132:21-25; 243:17-247:3. Obviously, offering to train someone for a cooking or laundry position in the field does not suggest that Sears believed Ms. Breithaupt was qualified to work in the assembly line approach at the new facility as an electronics technician. In any event, Ms. Breithaupt was never offered any field position, as it is undisputed that she voluntarily submitted a doctor's note prohibiting her from accepting any position in the field. Pl.'s Ex. 12 at 158:7-20. Moreover, it is undisputed that Ms. Brooks did the hiring for the new facility, Ms. Fanning did the hiring for field technicians. Pl.'s Ex. 2 at 156:14-157:4; Pl.'s Ex. 10 at 210:10-212:13. The fact that Ms. Fanning or another technical manager may have thought

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Ms. Breithaupt could be trained as a field technician working on mechanical items does not indicate in any manner whatsoever that Ms. Brooks' thought she was technically competent to work in the new assembly-line facility. E. No Facts Dispute Sears' Reasons for Not Selecting Green. 1. The material facts remain undisputed.

The undisputed facts are as follows: (1) Mr. Green was given a leadership interview by Ms. Savard. (2) Ms. Savard rated Mr. Green as below the acceptable level in Leadership ­ a score of 2.9 -- including "marginal ratings" in Change Leadership and Team Skills. (3) Ms. Savard participated in the group discussion and reported that Mr. Green did not support the process. (4) Ms. Brooks' decision not to hire Mr. Green was based on by his interview as conveyed to her during the group discussion. (5) Ms. Brooks had an independent conversation with Mr. Green in which he corroborated the information Ms. Brooks had received in the telephone conference by confirming that he did not support the new repair process. UF ¶¶41, 44-47. 2. Plaintiffs' challenges to Sears' reasons for not hiring Mr. Green do not raise material factual disputes.

Plaintiffs assert first that Sears' reasons for not selecting Green for a technician position changed over time. This is simply not true. In its EEOC Position Statement, Sears states that "Mr. Green participated in the interviews for the new facility with the other Service Techs in his department. Mr. Green had the technical ability to perform his job adequately. However, the interviewers determined that Mr. Green's teamwork skills were `weak' and that he `lacks the enthusiasm [and] team spirit that is needed for a redesigned unit.'" Pl.'s Ex. 29 at 4. In her deposition, Brooks testified that in both the leadership interview and her own conversation with 11

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Mr. Green, it came across that Mr. Green "didn't believe that it [the new repair process] would ever work." She explained: I have a lot of respect for Charlie [Green]'s technical abilities. I think he's a good technician, but during ­ after the interview times, once we discussed the leadership interview and he talked about how he did not believe in the process ­ you really have to have a good mind-set to go from what he was previously doing to what the new process was, because it is different. And the leadership interview did not indicate that he would be able to make that change. And talking to him, too, he was negative towards that process, and you needed to go into it knowing that you had to make this change and be able to lead a team. It was very different. Pl.'s Ex. 2 at 62:14­24; 68:11­69:3 (emphasis added). Finally, in her affidavit attached to Sears' summary judgment motion, Brooks states that she did not hire Green because it was conveyed to her that during the leadership interview, "Mr. Green was not supportive of the redesigned process." Def.'s Ex. A, ¶¶ 23 & 30. This evidence is entirely consistent and did not change over time: Ms. Books did not hire Mr. Green because she perceived that he opposed and was resistant to the new process. This came from the report of his leadership interview during the conference call and was corroborated by Ms. Brooks' own discussions with Mr. Green. No facts, disputed or otherwise, suggest that this was not Ms. Brooks' real reason for not hiring Mr. Green. Plaintiffs assert second that Sears' stated reasons for not hiring Mr. Green contradict each other. Plaintiffs claim that Ms. Brooks' reliance on her own conversations with Mr. Green, in which he expressed extreme hostility to the new process, contradicts her statement that she based her decision not to hire Mr. Green on his hostility to the new repair process as expressed in his leadership interview. Significantly, Mr. Green does not dispute the critical facts here. He admits that he expressed concerns about the redesigned repair process both in his interview and to Ms. Brooks separately. His only dispute is that he was not as negative as Sears has portrayed. 12

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UF ¶¶ 42 and 46. In addition, the purported contradiction does not exist. Sears has never taken the position that Ms. Brooks relied exclusively on the results of the interview process. Where information independently verified that process, it was entirely consistent for Ms. Brooks to take that into account and Sears has not taken any position to the contrary. And finally, alleged contradictions or inconsistencies do not raise factual issues as to pretext where they do not call into question the stated reason for a company's decision. Randle, 69 F.3d at 454. Here, the alleged inconsistency has the opposite effect. Ms. Brooks' separate conversation with Mr. Green did not yield information contradicting the report from Mr. Green's leadership interview. To the contrary, it corroborated the information from the interview, thus supporting the undisputed fact that Ms. Brooks' reason for not hiring Mr. Green was his hostility and resistance towards the new process. Plaintiffs assert third that Ms. Brooks cannot rely on Ms. Savard's hearsay report of what occurred during the leadership interview because Ms. Savard does not remember that interview or whether or not she made a negative recommendation on Mr. Green. However, Ms. Savard's lack of memory concerning what happened at Mr. Green's leadership interview certainly does not create any factual issues as to what occurred there. Pl.'s Ex. 6 at 91:9-11. As noted above, Mr. Green himself confirms that he thought Ms. Savard was rigid and hard to work for, that he asked her questions during the interview (rather than the other way around) and that he became frustrated and viewed Ms. Savard as unprofessional when she would not answer them to his satisfaction. UF ¶ 43. Signficantly, he has submitted no deposition testimony, no affidavit and no evidence of any kind raising a factual issue as to what happened during his interview with Ms. Savard.

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Nor is Ms. Savard's recommendation to Ms. Brooks improper hearsay evidence. The issue in this case is whether Ms. Brooks discriminated against Mr. Green, i.e., Ms. Brooks' state of mind. Sears' evidence as to what Ms. Savard reported is not offered by Sears for its truth, i.e, it is not offered to show that Mr. Green actually was hostile during the interview, but merely to show what Ms. Brooks heard during the conference call and demonstrate her state of mind based on the group discussion of Mr. Green. Significantly, Plaintiffs offer no facts disputing what Ms. Brooks heard during the conference call or that her decision was based, in part, on that report. Plaintiffs also allege that Mr. Green's good attitude with the technical interviewer, Robert Garcia, somehow shows that he conveyed a positive attitude with Ms. Savard. This is a nonsequitur. Evidence of how Mr. Green did in his technical interview does not rebut the fact that Ms. Brooks understood that Mr. Green had conveyed a lack of support for the process in his leadership interview and to Ms. Brooks separately. Those facts remain undisputed. Plaintiffs argue fourth Ms. Brooks forged the notes reflecting poor performance by Mr. Green during the leadership interview. Plaintiffs' facts, however, do not support such a slanderous allegation. They allege only that Ms. Savard disclaimed that they were her notes. This is clearly not enough to raise a factual issue as to whether Ms. Brooks forged the notes and such a scurulous accusation based on no support whatsoever should be stricken from the record. The facts, as recounted by Mr. Green himself, strongly indicated that the notes accurately reflected comments he made during the leadership interview. UF ¶¶ 42 & 43. His leadership rating of below "acceptable" further confirms the accuracy of the notes. He must have conveyed something negative to get such a rating. In any event, the notes, if written by Ms. Brooks or

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another person in the decision-making process, would confirm, not disprove, Sears' motivation for not hiring Mr. Green. Indeed, the notes (whoever made them) further corroborate Sears' legitimate, non-discriminatory reasons. They do not raise a factual issue as to whether those were the real reasons. Plaintiffs argue fifth that Sears' decision to hire Josie Padilla creates a "weakness, inconsistency or contradiction" that calls into question whether the company's real reason for not selecting Mr. Green was his hostility to the new process. Plaintiffs are arguing that Sears' stated reason for rejecting Mr. Green ­ his hostility to the process -- does not hold up because Ms. Padilla got hired, and she was just as bad as or worse than Mr. Green on the issue of leadership skills. This argument fails, however, because (1) no facts support the assertion that Ms. Padilla exhibited the same hostility to the new process, and (2) Plaintiffs do not and cannot dispute the legitimate business reasons that distinguish Ms. Padilla from Mr. Green. Plaintiffs argue that Ms. Padilla did not apply for the mechanical technician position. That fact is not in dispute, but it does not refute Sears' stated reason for not selecting Mr. Green. It is undisputed that if Sears was unable to fill a position in the new facility with a Thornton technician, the company sought other qualified applicants from other Sears' repair shops. UF ¶ 12. Selecting from a broader applicant pool does not rebut Sears' reasons for rejecting Mr. Green's application. Plaintiffs assert next that Ms. Padilla was not qualified because she was working in the Lawn and Garden Department, repairing lawnmowers, and her job description did not include sewing machines. Again, those facts do not rebut Sears' articulated reason for not selecting Mr. Green for this position. It is undisputed that Ms. Padilla was experienced in repairing sewing

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machines and that Ms. Brooks knew Ms. Padilla to have extensive experience working on sewing machines. Pl.'s Ex. 2 at 83:5-12; Pl.'s Ex. 1 at 14:10-13; 27:8-10; 28:6-15; 42:4-7. Plaintiffs cannot raise a factual question as to Padilla's technical competence merely by stating that she worked in another repair area. Plaintiffs assert next that Ms. Padilla did just as badly in her leadership interview as Mr. Green because she too scored an "unacceptable" 2.9. Obviously, this does not directly contradict Ms. Brooks' reason for rejecting Mr. Green. A candidate, such as Ms. Padilla, could have weaknesses in the leadership area without being openly hostile to the new process. It is undisputed that Mr. Brooks considered Ms. Padilla more qualified than Mr. Green because of her superior leadership and teamwork skill and because of her willingness to work on lawnmowers. UF 52-54. Plaintiffs do not challenge these facts. Because the undisputed facts establish that Ms. Padilla had comparative advantages over Mr. Green, her selection instead of him does not call into question Sears' stated reason for deciding not to select him. See Cone, 14 F.3d at 532. 3. Sears' failure to consider Mr. Green for an intaller/helper position is not evidence of age discrimination.

Plaintiffs assert that Sears' failure to consider Mr. Green for an installer/helper position based on the 10 percent rule was a pretext for age discrimination. Sears accepts, for purposes of this Reply Brief, that there is a factual dispute as to whether a 10 percent rule exists. However, three critical facts are not disputed that render a factual dispute on this issue immaterial. First, there is a rule that if a candidate is offered an alternative position paying more than 10 percent below his or her previous salary, then that person can reject that position and still receive severance pay. Second, Ms. Brooks and the Human Resources Manager, Kelly Fanning, both believed that the 10 percent rule existed and that it precluded them from considering Mr. Green 16

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for installer/helper positions. Third, Ms. Brooks and Ms. Fanning applied the 10 pecent rule in a non-discriminatory manner to a younger worker, Randy Shioshita. Where, as here, a party applies a rule incorrectly, but in a non-discriminatory manner, that error is not evidence of pretext. See EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1322 n.12 (10th Cir. 1992). Here, there is no dispute that Ms. Brooks and Ms. Fanning honestly believed in the 10 percent rule. Moreover their erroneous application of the rule to both Mr. Green and Mr. Shioshita demonstrates conclusively that it was not used as a pretext for discrimination. Plaintiffs have no facts suggesting that Ms. Brooks or Ms. Fanning concocted the rule or that any such concoction was applied in a discriminatory manner. Plaintiffs argue that the 10 percent rule could not have existed in the minds of Ms. Brooks and Ms. Fanning because they offered Mr. Shioshita and Ms. Breithaupt alternative positions in sales that paid more than 10 percent less. This erroneous and unsupported assertion actually supports Sears' position. First, Plaintiffs provide no facts to support this assertion. Second, sales positions do not pay more than 10 percent less; Mr. Shioshita took a sales position, and, as a result he was not eligible to receive severance. Pl.'s Ex. 2 at 100:19-22; 101:6-9; 165:8-13. If the position had paid more than 10 percent less, he would have received severance under the written 10 percent rule that does exist. Third, the fact that Sears offered Ms. Breithaupt, another alleged victim of age discrimination, an alternative position would be proof that Sears did not withhold alternative positions based on age. Plaintiffs allege further that Sears improperly relied on the 10 percent rule to deny Mr. Green an Artisan position. They claim Mr. Green should have been considered for that position because it did not pay 10 percent less. Plaintiffs simply have their facts wrong here.

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The "Artisan" position is one of the Mechanical Service Technician positions for which Mr. Green was considered. Sears hired four mechanical technicians for the new facility, two were artisans and two were floorcare. Sears/Green Bates # 0228, attached hereto as Ex. X; Hourly Associate Job Data Report, attached hereto as Ex. Y. They were Wanda Reavis, Kris Dean, Stan Kossman and Josie Padilla. UF ¶50. Ms. Reavis and Ms. Padilla were hired into Artisan positions. 4. Sears' failure to hire Mr. Green for a field technician position does not raise any factual issues for trial.

Plaintiffs allege that Sears' failure to consider Mr. Green for a field technician position shows discrimination against him. They allege the existence of a factual dispute about whether or not he was capable of going in the field and whether he wanted to go into the field. Sears accepts for purposes of this Reply Brief only that there are factual questions as to whether Mr. Green was capable of going into the field and whether he wanted a field position. Despite those factual issues, the following are undisputed: (1) A technician does not need a doctor's note to go into the field. Rather they need a doctor's note to show they are unable to go into the field so that they can get severance despite an offer to go into the field. Pl.'s Ex. 2 at 67:16-15. (2) Sears had openings and would have hired Mr. Green to go into the field if it had understood he was capable and interested. (3) Sears thought Mr. Green was not capable of going into the field. (4) Sears paid Mr. Green severance on the assumption that he met the eligibility requirement of not being capable of taking the alternative positions available in the field. (5) Sears offered field technician positions to two other age discrimination plaintiffs in this case ­ Ms. Breithaupt and Mr. Wentland. UF ¶¶ 48-49, 35, 27.

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These undisputed facts establish conclusively that Sears' believed Mr. Green to be incapable of going into the field. Sears accepts for purpose of this Reply Brief that there is a factual dispute as to whether that belief was correct. However, there is no dispute that the belief existed and no allegation that Sears discriminated against older workers in filling its field technician positions. III. PLAINTIFFS' EFFORTS TO RAISE GENERAL FACTUAL ISSUES FAIL AS A MATTER OF LAW. A. Plaintiffs' General Challenges to Brooks' Credibility Do Not Raise Factual Issues.

Plaintiffs attempt to create a fact issue by impugning the credibility of one of Sears' witness, Ms. Brooks. Plaintiffs do not challenge any specific fact contained in Ms. Brooks' affidavit by presenting specific facts of their own. Rather they alleged that because Ms. Brooks is not credible generally, the facts in her affidavit are not sufficient to support summary judgment in Sears' favor. This effort fails as a matter of law. Inconsistencies in testimony unrelated to the employment decisions at issue in a case are not, as a matter of law, sufficient to raise factual issues as to whether a company's stated reasons for an employment action are pretextual. See Ingles v. Thiokol Corp., 42 F.3d 616, 623 (10th Cir. 1994). A party opposing summary judgment must come forward with specific facts that raise factual issues concerning the moving party's specific allegations. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Courts are not to evaluate the general credibility of witnesses on summary judgment. See Seeamons v. Snow, 206 F.3d 1021, 1026 (10th Cir. 2000). A party's "mere conjecture" that Sears' proffered explanations are pretextual does not raise a genuine issue

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of material fact sufficient to defeat summary judgment. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Here, Plaintiffs' general attacks on Ms. Brooks' credibility are not "specific facts" indicating that her stated reasons for not hiring Plaintiffs are pretextual. It is not for the court to make credibility determinations at the summary judgment stage. Plaintiffs' conjecture that because Ms. Brooks was allegedly not credible in some other context, she may not be telling the truth here does not raise a factual issue sufficient to defeat summary judgment. B. Plaintiffs do not present valid or admissible statistical evidence.

Plaintiffs attempt to create the impression that the redesign of the Aurora facility had a disproportional impact on older workers by offering non-admissible and invalid "statistics." The proffered "statistics," however, do not suggest that the hiring process for the redesigned repair facility was designed to get rid of older workers, and cannot defeat summary judgment. First, Plaintiffs suggest that this case resembles Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996), in which eight senior executives were all terminated within a short time frame. There, the fact that 100% of the terminated employees were older than 40 raised an inference that age played a role in the termination decision. Id. However, this case is more like Kirkland v. Safeway, Inc., 153 F.3d 727, 1998 WL 439662, at *4 (10th Cir. July 10, 1998), which distinguished Greene on the ground that the number of older workers impacted simply did not suggest that age played a factor in the decision-making process. Here, like in Kirkland, the ages of the workers who were or were not hired do "not show in a meaningful way that older workers within the protected age group were affected proportionately more than workers outside of the protected age group." Id. at *4 n. 3. Unlike Greene, here not all of the workers affected by the

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redesign were over 40. Moreover, the number of older workers selected for the new facility belies any suggestion that age was a factor in the decisions. Second, Plaintiffs have not met the minimum threshold requirements for use of statistical evidence. They have not shown that their "statistics" were drawn from an adequate sample size, that they are comparing similarly situated individuals, that there was a disparity between the treatment of older and younger applicants, or that the numbers they claim should apply account for any other factors, such as the applicants who voluntarily opted to accept the severance package. Def.'s Brief p.19 and cases cited therein. Accordingly, Plaintiffs' proffered "statistics" are unreliable, and do not raise a material fact issue. Third, even assuming that Plaintiffs' armchair calculations are admissible evidence, the hiring results still show that Sears hired many older workers and did not hire many younger workers, precluding the inference that age was a factor in the decision-making process. For example, it is undisputed that Sears hired Frank Weinzapfael (age 57), Gunther Beckman (age 61), and Frank Ayearst (age 60), two of whom were older than all three Plaintiffs at the time they were hired, and all of whom were older than Plaintiffs Breithaupt and Wentland. Nor can Plaintiffs dispute that the age range of all workers hired from the Thornton facility was 43 to 57, with an average age of 49. Plaintiffs complain that Sears does not include Kris Dean (age 24), or James Blankenship (age 38), two technicians hired after the internal Thornton candidates were selected. Opp. pp.108-109. But even considering applicants from outside Thornton, Plaintiffs cannot dispute that Sears hired Beckman (age 61) and Ayearst (age 60) from this group. Both are much older than Dean or Blankenship, and the average age of the four (Beckman, Ayerst, Dean and Blankenship) is 45. No matter how Plaintiffs wish to define the universe of

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comparators, it cannot dispute that for the redesigned facility, Sears consistently hired older workers, whether from within the company or not. These results do not show "in a meaningful way" that age played a role in the hiring process. Kirkland, 1998 WL 439662, at *4 n. 3. C. Plaintiffs' efforts to infer pretext from Brooks' remark fail as a matter of law.

Plaintiffs claim Ms. Brooks' comments to Ms. Breithaupt and Mr. Green that they would "not fit in" at the new facility suggest that her stated reasons were not her real reasons. This is a non-sequitur. Ms. Brooks did not believe either Ms. Breithaupt or Mr. Green would be well suited for the new facility ­ Ms. Breithaupt because of her technical skills and Mr. Green because he opposed the new process. Although she denies making these statements, if she had made such statements, it would not raise a factual issue for trial. A statement to the effect that they would not do well in the new facility or would not "fit in" to the new plan is completely consistent with, and indeed corroborative of, her stated reasons for not selecting them. Indeed, if Ms. Brooks' reference to fitting in had referred to the Plaintiffs' ages it would have been wrong, because if age had been the criteria, Plaintiffs would have "fit in." See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000) (comment that "at [Stone's] age, it would be difficult to train for another position" or "difficult to find a new job" did not raise a factual issue of age discrimination); McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (comment of a supervisor at the time of termination "he [the supervisor] was not as old" as McKnight did not raise inference of age discrimination).

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D.

Sears' alleged deviations from company policies do not indicate that Sears' stated reasons for not hiring Plaintiffs were false. 1. Not all deviations from policy suggest that a company's stated reasons are false.

Plaintiffs attempt to show pretext by arguing that Sears did not follow its own policies and procedures for the selection process for the redesigned Aurora facility. However, failure to follow a procedure raises a factual issue as to whether the company's stated reasons for a decision are lies only where the company's deviation from the procedure is related to the decision in such a manner that it calls into question the employer's motivation or purpose. Ingels v. Thiokol Corp., 42 F.3d 616, 623 (10th Cir. 1994). Here, the alleged deviations from policy either (1) did not occur, or (2) do not relate in any manner to Sears' motivation or purpose. 2. Sears followed its own procedure regarding an impact summary.

Plaintiffs argue that Sears' failure to complete an adverse impact summary was a disturbing procedural irregularity sufficient to raise an inference of pretext. Plaintiffs misstate the record. While Brooks and Fanning could not recall the details of the summary, each testified that such a summary was created. Pl.'s Ex. 2 at 40:9­41:2; Pl.'s Ex. 10 at 208:11­209:3. Additionally, in the course of discovery, Sears provided Plaintiffs its log of privileged documents, which included a description of the impact summary. Nevertheless, even if one were to wrongly assume there was no impact summary as Plaintiffs contend, they have provided no evidence to suggest that such an alleged procedural irregularity would have impacted the selection process or would have revealed that Sears' stated reasons for its decisions were false. See Ingels, 42 F.3d at 623.

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3.

Sears considered seniority.

Plaintiffs claim that Sears' failure to consider each applicant's seniority in the hiring decision raises factual issues about whether its stated reasons were pretext. Plaintiffs' argument is based on the fact that Ms. Brooks, the ultimate decision maker, testified that she did consider seniority, while others in the process testified that they did not. However, controlling Tenth Circuit authority demonstrates that Plaintiffs cannot raise a factual issue here. In Lucas v. Dover Corp., 857 F.2d 1397, 1401 (10th Cir. 1988), the plaintiffs attempted to show that the stated reason for their non-hiring in a reduction-in-force case was pretextual because two interviewers testified that they did not consider an applicant's seniority, while the final decision maker testified that he did consider years of service. The Lucas court found that, because the final decision maker testified that length of service was considered in every case, this "inconsistency" was so insubstantial that no reasonable juror could use it as a basis to infer age discrimination. Accordingly, the court granted judgment n.o.v. for the defendant. Here, as in Lucas, Ms. Brooks, the ultimate decision maker, testified that she took length of service into account. Pl.'s Ex. 2 at 25:16­26:4. Mr. Perry, the head of the redesign team, testified that seniority was a factor that Brooks could have considered in her role as the final decision maker. Pl.'s Ex. 3 at 88:7­9. Under the clear holding in Lucas, whether or not Perry, or anyone else, considered seniority is totally irrelevant, and cannot raise a genuine issue of material fact. 4. Plaintiffs' past job performance cannot raise a fact issue.

Nor can Plaintiffs' past job performance raise an issue whether their interview scores are pretextual. See Ezold v. Wolf, Block, Schoor & Solis-Cohen, 983 F.2d 509, 528 (3d Cir. 1992)

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(prior good performance evaluations held insufficient to establish that later unsatisfactory performance evaluations were pretext for discrimination). Plaintiffs cite Garrett v. HewlettPackard Co., 305 F.3d 1210, 1219 (10th Cir. 2002) for the proposition that their past performance suggests that the interview results are a pretext for discrimination. Garrett involved a long-term employee whose annual performance reviews for the same job suddenly changed. Id. at 1218. In this case, it is undisputed that Plaintiffs were interviewing for new jobs with a new skill set, not the same jobs they had been performing. Pl.'s Ex. 2 at 70:13-18; 76:7-12; Pl.'s Ex. 3 at 38:12-39:12. Plaintiffs' mere disagreement with Sears' assessment of their interview performances cannot, standing alone, defeat summary judgment. Branson, 853 F.2d at 772. E. Sears' Use of Subjective Selection Criteria Does Not Raise Factual Issues.

Plaintiffs attempt to defeat summary judgment by arguing that the "Leadership Interviews" applied subjective criteria. The subjective nature of the Leadership Interviews is a red herring. It is well established that "the use of subjective criteria does not suffice to prove intentional discrimination." Doan v. Seagate Technology, Inc., 82 F.3d 974, 978 (10th Cir. 1996). See also Pitre v. Western Elec. Co., Inc., 843 F.2d 1262, 1272 (10th Cir. 1988). Interviews themselves necessarily measure subjective criteria, and are an extraordinarily common method of making hiring decisions. See Chapman v. AI Transport, 229 F.3d 1012, 1033 (11th Cir. 2000)("[S]ubjective evaluations of a job candidate are often critical to the decision-making process, and if anything, are becoming more so in our increasingly service-oriented economy.") The unremarkable fact that an interview designed to test "leadership" or "team" skills is subjective cannot, in and of itself, create an inference of pretext to defeat summary judgment. See Doan, 82 F.3d at 978.

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F.

Plaintiffs' Argument that Sears Asked about Retirement Plans is Based on a Distortion of the Record.

Plaintiffs repeatedly insist that summary judgment should be denied because Dan Perry, who conducted the leadership interview for Wentland, allegedly admitted that he "raised the retirement issue" in the interview. DF 180; Opp. pp. 100-101; 119. This is a distortion of the record. Perry testified that in Wentland's leadership interview, Wentland "told me point-blank that he wanted the buyout." Pl.'s Ex. 3 at 71:25­72:5. Perry testified that the only time that he would have raised Wentland's self-professed desire to take the buyout was on the conference call with the other interviewers and Brooks. Indeed, the testimony cited by Plaintiffs is Perry's answer to the question: "During the conference call with Stephanie Brooks, was there any discussion about whether or not an individual planned on retiring?" Pl.'s Ex. 3 at 80:5­7. Although he did not recall the exact conversation, Perry agreed that on that conference call, it may have been him who raised Wentland's statement that he wanted to retire. Pl.'s Ex. 3 at 81:2­4.) Contrary to Plaintiffs' assertions, Perry never testified that he raised retirement with Wentland in the leadership interview, and his recollection of Wentland's statements squarely matches the information Brooks received on the conference call. Obviously, Plaintiffs cannot defeat summary judgment by distorting the record in this way; Perry never testified that he asked Wentland or anyone else about their retirement plans. Nor do Garcia's notes regarding Green's retirement raise a material fact issue. Plaintiffs do not dispute that retirement plans were occasionally discussed because of the nature of Sears' downsizing package. UF ¶¶ 14­17. They also do not dispute that neither Ms. Brooks, Mr. Garcia, or anyone else, mentioned Green's retirement on the conference call to discuss the 26

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interviews. UF ¶¶ 18 and 45. Indeed, Plaintiffs do not, and cannot, dispute the dispositive fact: Every single person associated with the interview process testified that retirement plans played no role in deciding whom to hire for the new facility and they were not discussed by the interview team. UF ¶ 18. The Court should reject Plaintiffs' attempt to re-write the record to create a fact issue regarding Plaintiffs' retirement plans. CONCLUSION Plaintiffs have no direct evidence of age discrimination. They rely exclusively on accusatory conjecture, and laundry lists of immaterial allegations that are insufficient as a matter of law to raise genuine material issues for trial. Plaintiffs did not raise any genuine issue of material fact which controvert Sears' non-discriminatory reasons for not selecting Plaintiffs for the new roles. Accordingly, summary judgment should be granted, dismissing Plaintiffs' claims. Dated: August 29, 2005 By: s/Daniel E. Friesen Daniel E. Friesen Thomas D. Leland HALE FRIESEN LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6000 Facsimile: (720) 904-6006 [email protected] [email protected] Attorneys for Defendant Sears, Roebuck and Co.

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CERTIFICATE OF SERVICE I hereby certify that on August 29, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Diane S. King Margaret B. Funk KING & GREISEN, LLP [email protected] [email protected]

By: s/Daniel E. Friesen Daniel E. Friesen HALE FRIESEN LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6000 Facsimile: (720) 904-6006 [email protected]

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