Free Supplement/Amendment - District Court of Colorado - Colorado

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 1 of 42 Page 1 of 42

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 & CO., a New York corporation, Defendant.

BRIEF IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiffs, by their attorneys King & Greisen, LLP, submit the following brief in support of their response to Defendant's Motion for Summary Judgment filed by Sears, Roebuck & Company ("Sears" or "Defendant"): INTRODUCTION In December of 2001, Plaintiffs filed their complaint alleging that the termination of their employment with Defendant was motivated by unlawful age discrimination, in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. (the "ADEA"). Green, Breithaupt and Wentland had a combined ninety-three (93) years of service working for Sears as repair technicians. At the time of their terminations, they were fifty-nine (59), forty-eight (48) and fifty-three (53) years old, respectively. All three plaintiffs received positive review after positive review, and all were ranked by their peers and managers as top technicians at the time of their termination from Sears.

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 2 of 42 Page 2 of 42

However, despite their excellent performance, top-rate training, Sears' certified skills and qualifications and decades of loyal and dedicated service, in the Spring of 2000, Plaintiffs were advised by Sears they had not been selected for positions at the new Aurora facility. Sears used a brief and subjective interview process ­ despite the fact that the decision maker had worked with the Plaintiffs for years - to create a justification for firing Plaintiffs, a process manipulated to guarantee the desired outcome. Sears then hired younger, less qualified employees from both inside and outside of its organization to replace these invaluable employees. While the decision to fire Plaintiffs was made by a supervisor that had worked along side Plaintiffs for many years, Sears now hides behind a brief interview process to shield its discriminatory conduct. While the redesign process itself does not appear to have been created by corporate to rid itself of older workers, as manipulated and applied by Unit Manager Stephanie Brooks, that is certainly the outcome. Despite Sears' attempt to characterize its actions as having been taken in good faith, the degree to which the process was distorted belies the truth: (1) a number of older workers were terminated, and younger employees were hired to replace them (though, admittedly, Sears did not have the gall to terminate all of the older workers at once); (2) the Sears policy of considering seniority as a positive factor - included in writing in the manual that was to guide the redesign team and Ms. Brooks through the redesign - was blatantly ignored; (3) applicants were quizzed about their retirement plans in the redesign interviews; (4) long term, competent employees/applicants were eliminated from consideration based upon extremely subjective criteria, i.e., employees who had been training and leading teams of employees for years were 2

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 3 of 42 Page 3 of 42

deemed to not have leadership abilities; (5) a ten percent rule was concocted to ensure that longterm employees were unable to obtain another job within Sears (a rule that an employee could not be given a job that resulted in him/her taking a ten percent or more cut in pay); (6) younger employees who did not perform well in the redesign interview process were given favorable treatment (Josie Padilla) and younger, clearly less-qualified individuals were hired from outside the company (James Blankenship); (7) employees were interviewed by a technical interviewer who did not know what job each was applying for (Bob Garcia); (8) older employees were deemed not qualified for positions with the "new" assembly line style process when, in fact, they had been working in an assembly line process for years; and (9) no "adverse impact analysis" - a document required by the redesign procedure to ferret out age discrimination - was performed. In an attempt to cover for Stephanie Brooks' discrimination, Sears is, once again, forced to play fast and loose with the facts. Sears' brief, supported primarily by Brooks' most recent affidavit and second deposition testimony, is full of contradictions, inconsistencies and less than credible explanations regarding why these three (3) decade-long loyal employees were not selected for positions at the Aurora Repair Center. PLAINTIFFS' RESPONSE TO SEARS' PROPOSED UNDISPUTED FACTS 1. 2. Admit. Admit in part, deny in part. While Sears did move all technical positions at the

Thornton location to the new facility, it is disputed whether the technician positions at the new facility were actually "new" positions. (Ex. 1, Padilla Depo, 22:19-24:9; 105:21-25; 106:11-25; 109:2-110:13; 117:6-11; 118:4-9; 122:20-25; 123:11-23; 128:12-130:13; 134:13-23; 135:183

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 4 of 42 Page 4 of 42

136:14; 176:11-20.) Further, in the late 1990s, Sears consolidated all but Lawn & Garden employees into one facility, Thornton, and none of the employees lost their jobs/had to reapply for their jobs, but were just transferred from the Osage facility (which was closed) to Thornton. (Ex. 2, Brooks 2005 Depo, 34:9-25.) 3. Admit in part, deny in part. The only authority cited for the "hope" of Sears in

redesigning the repair process is that of Stephanie Brooks. It is undisputed that she was a route supervisor at the time Sears designed, organized and began initiating its reorganization in the late 1990s and, thus, has no foundation or qualification to speak of the "hope" of the organization at that time. Brooks' involvement on the team was defined by Perry as only bringing her experience as someone who had been in the unit for some time as a tech manager, as well as a routing manager and support manager. (Ex. 3, Perry Depo, 69:15-24.) Further, Plaintiffs deny that the purpose of the redesign was to move to an "assembly line approach," in that the statement infers the following untrue facts: (1) that the assembly line approach had not already been in use at the Thornton location (which it had) (Ex. 4, Green Depo, 48:17-21; Ex. 5, Wentland Depo, 54:20-55:8; Ex. 1, Padilla Depo, 106:11-24; 122:20-25); and (2) that the assembly line approach was ever actually used at the new Aurora location, which testimony from a current employee working there demonstrates that it is not and has not been used in all areas of repair at the Aurora location as asserted. (Ex.1, Padilla Depo, 110:10-21; 128:12-129:18; 134:16-23; 175:21-25.) 4. Admit. However, Plaintiffs do contend that the supervisor who made the ultimate

decision about who to terminate manipulated this process to terminate a number of older, long 4

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 5 of 42 Page 5 of 42

term and competent employees. 5. Admit. However, technical diagnostic skills and leadership skills had always

been important to performing the technician's position at the Thornton shop. (Ex. 4, Green Depo, 84:12-22; 85:13-17.) 6. Deny, as there is no adequate support in the record to affirm or deny this

assertion. The only evidentiary source cited for this assertion is the affidavit of Brooks. As Sears' next alleged UF1 outlines, Brooks conducted no interviews of current employees herself and was not on the interview team. (Ex. 6, Savard Depo, 131:3-4.) Accordingly, she has no personal knowledge of which employees were interviewed, by whom, how many times, for what purpose, etc. 7. Deny. The only evidentiary source cited for this assertion is the affidavit of

Brooks. As noted in part of this paragraph, Brooks conducted no interviews of current employees herself and was not on the interview team. (Ex.6, Savard Depo, 131:3-4.) She also has never testified that she had any involvement in drafting the interview forms used, interpreting those forms or even using those forms for current employees. In fact, she testified that she could not speak for the interview team concerning how they weighted various criteria they considered and that, if Plaintiffs wanted to know how criteria were rated, they had to go ask the interview team members, not her. (Ex. 2, Brooks 2005 Depo, 216:18-217:12.) Accordingly, she has no personal knowledge to support this factual assertion. 8.
1

Admit.

Proposed Undisputed Facts contained in Sears' brief are referred to herein as "UF." 5

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 6 of 42 Page 6 of 42

9.

Deny. Brooks claims she gathered historical evidence herself, but as noted in the

actual document, the information she placed on the sheet is not accurate, including Wentland's last performance rating and Padilla's leadership ranking figure - two "mistakes" that clearly prejudice the Plaintiffs' position and unjustifiably support her allegations of who was a better candidate. Sears has failed to produce the underlying data allegedly compiled by Brooks in putting this form together, despite Plaintiffs' discovery requests seeking the interview scoring sheets and the personnel files (including the last performance evaluations) of all the applicants for these positions. Many of the underlying documents are no longer in existence, including Padilla's and Wentland's last performance evaluations. 10. Deny. Brooks has provided inconsistent and varying explanations for why she

did not hire each of the Plaintiffs. Here, she claims that she made the decision not to hire any of the Plaintiffs based only on the feedback allegedly received by her from the actual interviewers. However, she has previously stated under oath that she considered the Plaintiffs' work performance, including specifically their last performance evaluation scores and actual production level numbers, when making the decision not to hire them. (Ex. 2, Brooks 2005 Depo, 73:4-25, 73:3-75:25 91:4-92:10, 91:4-13, 114:19-115:15,120:1-121:18, 147:10-22.) Later in her affidavit submitted in support of the instant Motion, Brooks states that she also considered outside conversation she had with Green and Padilla in making her decision, another glaring contradiction to this alleged UF. UF 53. In addition, Brooks tried to deflect responsibility and deny that she was the ultimate decision maker in her deposition, by stating that it was a consensus and that she was "overridden" by the group in her alleged desire to hire 6

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 7 of 42 Page 7 of 42

Breithaupt. (Ex. 2, Brooks 2005 Depo, 60:14-18, 60:25-61:6.) 11. Deny. This assertion that Sears had a "ten percent rule," conveniently concocted

by Brooks to justify why she did not place Green in the non-technician positions that he applied for, was emphatically denied by every other manager and redesign team member, including the Head of the Redesign Team, Dan Perry; Redesign Team Member, Nancy Savard; Redesign Team Member, Bob Garcia; Redesign Team Member, Ron Medford; and Redesign Team Member, Chuck Nash. (Ex. 6, Savard Depo, 76:18-77:2, 156:19-157:4; Ex. 3, Perry Depo, 98:24-99:5; Ex. 7, Garcia Depo, 85:25-86:5; Ex. 8, Medford Depo, 48:23-49:11; 49:18-50:1; Ex. 9, Nash Depo, 56:9-57:4.) Further, while Brooks and Fanning both testified under oath that this policy was in writing and was part of the Denver E&M Factory Communication Guide (as Brooks now concedes), despite the fact that Sears had provided the redesign team with that manual - a detailed, 121-page document outlining the rules and policies controlling hiring decisions made in the redesign process - there is, after all, nothing in that extensive document indicating that this "ten percent rule" ever existed. (Ex. 2, Brooks 2005 Depo, 166:20-176:20; 164:3-17; Ex. 10, Fanning Depo, 137:8-14, 87:15-23, 138:17-19, 84:23-25; 85:19-22; Ex. 11, E&M Factory Communication Guide.) Further, Sears has not identified what job or what pay rate that job paid that was under ten percent for Randy Shioshita. It is undisputed that he took a "sales" job. (Ex. 2, Brooks 2005 Depo, 101:6-9.) Marilyn Breithaupt was also offered a "sales" job, and the rate of pay for that job was either $12.50 per hour or $3 per hour plus commission. (Ex. 12, Breithaupt Depo, 241:9-243:2; 262:18-263:1.) Per Sears' pay records, Shioshita was, in actuality, earning $18.23/hour as of November 22, 1999. (Ex. 13, Def. Bates No. 0011). 7

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 8 of 42 Page 8 of 42

12.

Deny. Again, the only source for this erroneous and contradicted assertion is

Brooks, who, as noted above, had absolutely nothing to do with the interview process for current employees and who had not participated in drafting or formulating the policies controlling how internal and external hiring procedures were to be conducted. (Response to UF Nos. 6-7.) On the contrary, 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. 9, Nash Depo, 47:18-23, 78:17-79:17; Ex. 6, Savard Depo, 198:24-200:4.) 13. Deny. Sears did not seek to place at least on internal applicant, Green, in another

position. (Ex. 4, Green Depo, 165:5-19, 176:3-23, 235:5-8). Moreover, Sears only offered positions to Wentland and Breithaupt that it knew that they physically would not take and that were the least desirable positions. (Ex. 12, Breithaupt Depo, 130:11-21, 132:21-25; Ex. 10, Fanning Depo, 72:20-23; Ex.14, Breithaupt Affidavit, ¶ 36.) 14. 15. 16. 17. Admit. Admit. Admit. Admit in part, deny in part. Admit that Spenner's statement says what it purports

to say. Deny the remainder of this paragraph because the record does not provide any details to support the conclusory allegations contained herein. 18. Deny. While Garcia now denies that he considered employees' retirement

eligibility as part of his interviews, his notes reflect that he actually asked Green about his retirement plans and thought his answer was so significant that he made notations of it in his 8

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 9 of 42 Page 9 of 42

notes. (Ex. 28, Bates No. 0539.) Also, the notes that Sears has represented as notes from Savard's leadership interview with Green also reflect that he was asked in that interview about his retirement plans. (Ex. 51, Bates No. 0543.) However, the interviewer now denies that the notes are in her handwriting. (Ex.6, Savard Depo, 163:17-23.) In fact, Savard testified that she would not have asked a candidate about their retirement plans during and interview, as such questions would be discriminatory and had nothing to do with their ability to do their job. (Ex. 6, Savard Depo, 165:8-21.) In accord, Green has testified that, when he was told he would be terminated and not placed in any open positions, he was told they would just retire him. (Ex. 4, Green Depo, 165:9-19, 236:17-24). 19. 20. Admit. Deny. Wentland did not tell Perry that he wanted to retire. (Ex. 15, Wentland

Affidavit, ¶ 1.) Wentland was not even eligible for retirement. (Ex. 5, Wentland Depo, 38:7-16; 84:17-24.) This UF was that, while some candidates were eligible for an early retirement as part of the redesign, Wentland was too young to qualify for that redesign benefit. He was, in fact, a year-and-a-half away from retirement eligibility - a fact he discussed with interviewer Garcia, and specifically noted by Garcia in his notes. (Ex. 16, Bates No. 0561.) ("Wentland mentioned he is planning on retiring in another year-and-a-half."); (Ex. 5, Wentland Depo, 38:7-16; 84:1724.) Why would Wentland tell one interviewer that he was not going to retire until years later, but allegedly tell another interviewer he wanted to be terminated from Sears so he could retire instead of work? Also, Perry's contemporaneous notes taken during the interview do not mention a single word about such a shocking revelation, while they do contain a number of other 9

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 10 of 42 Page 10 of 42

impressions formed by Perry. (Ex. 17, Bates No. 0560.) Garcia did not remember Wentland saying that he was unwilling to work in Aurora, just that he would be uncomfortable because of the process they used. Padilla had actually indicated she would be uncomfortable in Aurora, but Garcia did not expect that revelation to preempt Padilla from having an opportunity to work in Aurora. (Ex. 7, Garcia Depo, 85:7-20.) 21. 22. Admit. Deny. While Wentland does not remember much about the interview, he is sure

that he never told Perry he wanted to retire, as Perry now alleges, because he was not old enough to retire. (Ex. 15, Wentland Affidavit, ¶ 1.) See also response to UF 20, above, and incorporated herein. Perry stated in his deposition in 2005 that Wentland told him point-blank that he wanted the buyout, and that Wentland went into some detail about having plans after he was retired. (Ex. 3, Perry Depo, 72: 4-5; 72:7-10.) However, Perry's interview notes from 2000 do not indicate Wentland made this statement; rather, it only indicates Perry's impression that Wentland was not interested in the team concept. (Ex. 3, Perry Depo, 73:24-74:12.) In accordance with his notes, Perry stated that he recalled that Wentland felt they would not be able to provide personal customer service. (Ex. 3, Perry Depo, 74:9-12.) Perry thought what Wentland was saying was that he had been available to customers and felt this was important, and Wentland felt during his interview that, with the new concept, he would not have that opportunity. (Ex. 3, Perry Depo, 74:24-75:3.) 23. Admit. However, Garcia conceded that he spoke to Wentland about how long

Wentland wanted to work until retirement, so it is not surprising he gave him a "no" vote. (Ex. 10

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 11 of 42 Page 11 of 42

7, Garcia Depo, 71:22-72:5.) See also response to UF 20, above, and incorporated herein. 24. Admit in part, deny in part. Wentland and his supervisor, Ray Figueroa, were

friends. (Ex. 5, Wentland Depo, 174:17-23; Ex. 18, Figueroa Depo, 40:10-18.) They had spoken for years about retirement generally and, when Wentland believed that he may be able to take earlier retirement as part of the buy-out, he discussed that option with Figueroa as something he was interested in. (Ex. 5, Wentland Depo, 84:17-24, 124:23-126:8; Ex.18, Figueroa Depo, 177:13-17.) However, once Wentland realized that he was too young to receive early retirement from Sears, he decided to interview for positions at the new facility and told Figueroa that he wanted and needed to stay employed. (Ex. 5, Wentland Depo, 38:7-16; 84:1724; Ex. 18, Figueroa Depo, 124:16-125:5.) 25. Admit in part, deny in part. Perry said expressing concerns about the process

would not disqualify someone, and Savard stated that it was common for applicants to express concerns about the process. (Ex. 3, Perry Depo, 122:12-123:13; Ex. 6, Savard Depo, 133:7-11.) Wentland denies telling Perry that he wanted to retire soon. (Ex. 5, Wentland Depo, 38:7-16; 84:17-24.) 26. Deny. The reasons now given by Sears to support Brooks' decision to not hire

Wentland have changed since Sears first provided its explanation to a federal investigator employed by the U.S. Equal Employment Opportunity Commission. While Brooks now claims that the decision to terminate Wentland was based on "his attitude toward the new process, his statements that he did not want the job, his indications that he wanted a severance package, and the resulting two `no offer' recommendations from his interviews," Sears' written statement to 11

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 12 of 42 Page 12 of 42

the EEOC investigator claims that, based on Wentland's negative attitude toward the entire strategy of the new facility and his lack of teamwork and leadership skills, the redesign team decided not to offer him a position at the Aurora Repair Center. (Ex. 19, Sears' Wentland Position Statement, pg. 4). Further, in her deposition in 2005, Brooks claimed even more reasons for not selecting him for a position, including his past work performance. Specifically, Brooks testified that she did not argue in support of keeping Wentland because, considering his "previous performance" in completing repairs he was not the "right person" for the redesign process. (Ex. 2, Brooks 2005 Depo, 73:4-25.) She testified she came to this conclusion by allegedly pulling production numbers from the Sears computer system - information clearly outside of any information conveyed to her by the interviewers. (Ex. 2, Brooks 2005 Depo, 73:3-75:25.) Notably, when asked in her 2005 deposition why she did not hire Wentland, Brooks never stated that she did not hire him because (1) he had told one of the interviewers that he did not want to work and only wanted to retire; or (2) that he told one of the interviewers that he wanted the "severance package" (Ex. 2, Brooks 2005 Depo, 73:4-78:22). However, she said she knew at the time she made the decision that Wentland had told one of the interviewers that he had raised the issue of "retirement." (Ex. 2, Brooks 2005 Depo, 206:24-207:12.) Garcia did not remember Wentland saying that he was unwilling to work in Aurora, just that he would be uncomfortable because of the process they used. (Ex. 7, Garcia Depo, 85:7-20) Padilla had indicated being uncomfortable, but Garcia didn't expect that to preempt Padilla from having a shot at a position in Aurora. (Ex. 7, Garcia Depo, 85:7-20.) 12

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 13 of 42 Page 13 of 42

27.

Admit. Wentland was told that he had to produce a doctor's note in order to be

able to decline the field position and that his statements that he had a medical condition were not sufficient to excuse him and allow him to be eligible for the severance package. (Ex. 7, Wentland Depo, 122:25-123:17; 126:20.) It is undisputed that he, accordingly, produced such a note which was then placed in his file. (Ex. 5, Wentland Depo, 122:25-123:17; 126:20; Ex. 20, Bates No. 975 (actual note).) 28. Admit in part, deny in part. Wentland did receive the severance package, but only

after he produced an actual doctor's note detailing the health reason that prohibited him from working in the field. See response to UF 27, above, incorporated herein. 29. 30. Admit. Admit. However, Brooks never testified that Wentland was not hired because of

his actual score. See response to UF 26, incorporated herein. Further, the technical scores of Wentland and the other internal applicants were: Wentland- 3.6; Shestkie-3.6; Lang-3.6, Schley4.0; and Padilla-3.2. (Ex. 21, Bates No. 05251) 31. 32. Admit. Admit. For two years, Breithaupt had not had to interview for her job, though

she had performed her job competently, and she was admittedly nervous about having to interview. (Ex. 12, Breithaupt Depo, 110:18-25.) 33. Admit in part, deny in part. Breithaupt admitted that she initially reversed the

polarization in her drawing of a diagram requested by the interview, but recognized it was reversed, on her own, as she finished the drawing and, accordingly, she told the interviewer that she was aware that she drew them in reverse. She then asked him if he would like her to redraw

13

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 14 of 42 Page 14 of 42

the diagram, to which he replied "no." (Ex. 12, Breithaupt Depo, 110:7-25). Further, as to the assertion that she was aware of a new technique but that she had not been using it, she actually stated she found her technique to be much faster - an assertion Sears has never claimed was false. (Ex. 12, Breithaupt Depo, 106:18-109:17). 34. Deny. The only evidentiary support for this factual assertion is the inadmissible

hearsay testimony of Brooks - no testimony from Currier has been produced by Sears. Second, the sole reason given herein for Brooks' decision not hire Breithaupt - that "Currier conveyed his view that Ms. Breithaupt did not demonstrate a sufficient level technical competence during the interview. As a result, Ms. Brooks decided not hire Ms. Breithaupt for the new facility" - is contrary to the many reasons Sears has provided, and Brooks, in particular, has provided in past sworn statements. In its position statement submitted to the EEOC, Sears first claimed that Breithaupt was not hired because she received low scores on basic technical and diagnostic and troubleshooting skills. (Ex.22, Sears Breithaupt Position Statement, p. 4) In her 2005 deposition (more than five (5) years later), Brooks then gave the following additional reasons for why she did not hire Breithaupt: Brooks testified that she did not hire Breithaupt based solely on the hearsay evidence that Currier allegedly told her that Breithaupt had answered some of the technical questions incorrectly and she had "better candidates to fill the position." Ex. 2, Brooks 2005 Depo, 109:24-110:17, 111:17-112:2. That better candidate was apparently James Blankenship, the younger, outside applicant hired instead of Breithaupt to work on televisions at the new Aurora Repair Center. (Ex.2, Brooks 2005 Depo, 116:19-117:3.)

14

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 15 of 42 Page 15 of 42

As noted on Blankenship's Service Technician Test Series, he was ranked in the lowest category - "POOR RISK""Low Level of Knowledge" for his TV/Projection skills and barely ranked in the "DESIRED SCORING RANGE""Acceptable Level of Knowledge," with a score of 36 out of a possible 63 total points for his knowledge of Basic/Digital Electronics. (Ex. 23, Bates No. 03180.) When shown Blankenship's poor television repair test score, Brooks first testified that had not previously seen Blankenship's poor score sheet and that another Sears' employee made the final decision to hire James Blankenship without telling her that he had done poorly on technical and team skills. (Ex. 2, Brooks 2005 Depo, 129:16-131:10; Ex. 23, Bates No. 03180.) But when confronted with her own notes from interviewing him for leadership skills, she conceded that she hired him even though she rated him as only marginal on "initiative/sense of urgency" and "interests/expectations." (Ex. 2, Brooks 2005 Depo, 131:15-23.) After this line of questioning, when asked again about whether Brooks believed that Blankenship was a better electronics technician then Breithaupt, Brooks answered "I didn't compare the two." Ex. 2, Brooks 2005 Depo, 136:20-25. Brooks also testified that Breithaupt's low production numbers were another reason she chose not to hire Breithaupt. Specifically, she also testified that she looked at Breithaupt's past performance, in making the decision not to hire her, and determined that her production levels were not as high as she would have liked. (Ex. 2, Brooks 2005 Depo, 114:19-115:15.) These reasons are internally inconsistent, as Breithaupt testified at the end of her deposition that she was offered (and, thus, presumably qualified for) an electronic technician field position which required the "similar" to just "a little less" technical repair skills as the

15

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 16 of 42 Page 16 of 42

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, 81:9-19.) 35. 36. Admit. 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 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, 158:15-23.) 37. 38. Admit. Admit in part, deny in part. Beckman was apparently considered under the same

interview process as Plaintiffs, 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 No. 03180.) Further,

16

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 17 of 42 Page 17 of 42

Brooks' unsupported, vague, conclusory statement that Beckman and Blankenship were previously known, highly competent technicians, is inadmissable, 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; 191:18-193:14.) 39. 40. 41. 42. Admit. Deny. See response to UF 11, above, and incorporated herein. Admit. 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, 148:20-149:16.) 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. 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, 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

17

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 18 of 42 Page 18 of 42

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. 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. 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. Deny. Green did not tell Brooks outside of the interview process that 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.) 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 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

18

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 19 of 42 Page 19 of 42

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: 4-92:10, 147:10-22, 213:319.) 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 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, 61:25-13.) 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

19

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 20 of 42 Page 20 of 42

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 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 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

20

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 21 of 42 Page 21 of 42

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 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, 34:1-34:21.) Specifically, in approximately 1984, after working in the field as a technician for approximately 22 years, Green asked if he could work in the shop for six to eight months to heal is 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. 50. Admit. Admit in part, deny in part. Reavis was hired in a different, part-time technical

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

21

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 22 of 42 Page 22 of 42

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, 216:18-217:12.) 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 that different categories of criteria were"weighted" differently, but that she actually applied this "weighting" of criteria when selecting Padilla over Green. another. 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 co-workers, she responded that she "feels working around men harder, hurts teamwork, shrugs it off. People think she would be a

22

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 23 of 42 Page 23 of 42

`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 part. The only "evidence" to support Sears' (and

specifically Brooks') claim that Brooks "believed that Padilla was more willing to work on lawn mowers than Mr. Green," is Brooks' unsupported and unfounded assertion. No written documents, no notes of conversations, no indications of conversations about this topic on the interview sheets were attached in support of Sears' Motion. Sears offers no evidence that Brooks even had first-hand knowledge of this assertion. Further, Sears claims that Green did not like working on lawn mowers (citing an opinion he gave years after his termination, in his deposition), but offers no particular details to support Brooks' general statement that Green told her, although no 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,

23

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 24 of 42 Page 24 of 42

71:13-28.) 54. 55. Admit in part, deny in part. See Response to Undisuputed Fact Nos 51-53. 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, 226:14227:13, 228:17-229:4; Ex. 5, Wentland Depo, 241:5-10, 248:25-251:11; Ex.12, Breithaupt Depo, 164:23-165:7, 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, 263:2-264:16.) However, each plaintiff testified that they believed the decisions made regarding who to hire were discriminatory. (Ex. 4, Green Depo, 153:4-17; 228:17-229:4; Ex. 5, Wentland Depo, 160:13161:1; 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. Deny. Each of the plaintiffs' testified that Brooks 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, 166:11-167:5). 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,

24

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 25 of 42 Page 25 of 42

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 those select few together. (Ex. 24, Brooks 2002 Depo, 37:4-38:25.) 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' 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

25

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 26 of 42 Page 26 of 42

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 part-time position - it is undisputed 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.) 60. No cite to the record, as required by the Court's rules for summary judgment

motions, and is thus denied PLAINTIFFS' STATEMENT OF DISPUTED FACTS I. SEARS DID NOT FOLLOW ITS OWN REDESIGN PROCESS POLICIES 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.)

26

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 27 of 42 Page 27 of 42

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 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.) A. 6. Sears Did Not Consider Seniority The E&M Factory Guide requires decisionmakers 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,

27

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 28 of 42 Page 28 of 42

that it just did not count. (Ex. 7, Garcia Depo, 37: 3-4, 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, 49:13; 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, 94:10­25; Ex. 25, Bates No. 05252.) 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).

28

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 29 of 42 Page 29 of 42

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. 0357603577.) B. 12. Sears Did Not Consider Prior Performance 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.) 13. While Brooks now testifies in her supporting affidavit that she only considered

the information conveyed to her by the interviews, she admitted she looked at John Trujillo's previous performance, and that of other candidates, in deciding that he was a good candidate for a position at the Aurora Repair Center. (Ex. 2, Brooks 2005 Depo, 57:16-25.) Further, when asked why she did not ask any of the applicants' current managers about the skills each applicant

29

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 30 of 42 Page 30 of 42

possessed, Brooks stated that the redesign did not consider the managers' opinions. She further explained that the applicants' performance evaluations were reflected in the performance ratings that managers had previously given the employees and which were reviewed by the group (Brooks 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 ben 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.) 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.) C. 19. The "Ten Percent Rule" 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

30

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 31 of 42 Page 31 of 42

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 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.) 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, 48:2449:17, 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

31

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 32 of 42 Page 32 of 42

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. D. 24. Sears Did Not Perform An Adverse Impact Analysis 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 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, 44:445:6; 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,

32

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 33 of 42 Page 33 of 42

Brooks 2005 Depo, 40:9-41:2.) E. 28. Sears Solicited and Considered Outside Employees 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 positions in the

new redesigned facilities, Sears was advertising for 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.) II. SEARS' DECISIONMAKER, STEPHANIE BROOKS, IS NOT CREDIBLE A. As noted above, Brooks repeatedly testified that written policies were followed, while the redesign team members testified they were not followed

30. B.

See Dfs Nos. 1,6-27, above. In addition to her contradictory testimony about the individual Plaintiffs' cases, discussed below, Brooks also gave inconsistent testimony regarding the redesign process Brooks testified in her 2002 deposition that employees were only considered for

31.

jobs they were currently doing, and not other jobs for which they may have been qualified.

33

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

Document 79 Document 76

Filed 07/26/2005 Filed 07/28/2005

Page 34 of 42 Page 34 of 42

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.) 32. However, in her 2005 deposition, Brooks conceded that she considered and hired

Josie Padilla into a mechanical position even though her supervisor, Figueroa, testified that he only loaned Padilla to the Mechanical Shop occasionally, and that she was still assigned to the Lawn & Garden Shop. (Ex. 2, Brooks 2005 Depo, 82:19-83:22.) Furthermore, Padilla admits she never told anyone that she wanted to apply for any other job than the Lawn & Garden Technician job listed on her application. (Ex. 1, Padilla Depo, 53:9-54:4, 60:1-12.) 33. Confronted with the concept that Padilla may not have put in an application for

the mechanical technician position, Brooks testified that 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, 82:19-83:22.) 34. Perry testified that the hiring manager would typically only look at a person for

the position for which he applied, assuming he was applying for the position that is in his area of expertise, and that he was not aware that Brooks was looking at whether or not he would be qualified for other positions. (Ex.3, Perry Depo, 95:23-96:16.) C. Brooks has also given inconsistent statements related to Sears' OWBPA Notices After her deposition in