Free Pretrial Order - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane Civil Action No. 01-cv-2324-JLK-MEH CHARLES T. GREEN, PHILLIP R. WENTLAND and MARILYN BREITHAUPT, Plaintiffs, vs. SEARS, ROEBUCK & CO., a New York corporation, Defendant.

PRETRIAL ORDER

1.

DATE AND APPEARANCES

The Pretrial Conference was held on September 21, 2006. The parties in attendance were Diane S. King and Margaret B. Funk of King and Greisen, LLP representing Plaintiffs and Daniel E. Friesen of Hale Friesen LLP representing Defendant. 2. JURISDICTION

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) of the ADEA, 29 U.S.C. § 626(b), which incorporates by reference Section 16(c) of the Fair Labor Standards Act of 1938 (" FLSA" as amended, 29 U.S.C. § 216(c). The ), employment practices alleged to be unlawful were committed within the jurisdiction of

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

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the United States District Court for the District of Colorado. Plaintiffs have fulfilled all conditions precedent under the ADEA prior to the institution of this lawsuit, as necessary, including filing timely charges of discrimination with the EEOC, and have otherwise exhausted their administrative remedies, within the meaning of Section 7(d) of the ADEA, 29 U.S.C. § 626(d). 3. a. CLAIMS AND DEFENSES In December of 2001, Plaintiffs filed their

Plaintiffs'statement:

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. 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

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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 deemed to not have leadership

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abilities; (5) a ten percent rule was concocted to ensure that long-term 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. Plaintiffs'claims are brought under the ADEA. Plaintiffs claim that Sears'refusal to hire them for positions at its new repair facility, and its corresponding decision to terminate their employment, was done willfully. Accordingly, Plaintiffs seek liquidated damages in addition to back and front pay (including past and future lost employment benefits), liquidated damages pre-judgment interest, post-judgment interest, costs and attorneys'fees.

b.

Defendant' statement: s

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Sears denies that age was a factor in the company's decision not to hire Plaintiffs for the redesigned appliance-repair facility in Aurora. To the contrary, Plaintiffs were not selected because they were not the most qualified for the new positions or were unsupportive of the new facility, and they were either unwilling or unable to accept the alternative positions Sears offered to them. In March 2000, Plaintiffs were working as appliance repair technicians at Sears' Thornton repair shop. At that time, Sears eliminated all of its shop technician positions in Thornton and redesigned its appliance repair process from an individual item approach, in which technicians diagnosed and repaired appliances, to an assembly line approach, in which technicians diagnosed problems and then supervised installers and helpers in completing the repairs. The new positions required higher levels of leadership, teamwork and diagnostic skills. Sears opened a new facility in Aurora for its redesigned repair process. All of the Thornton shop technicians, including Plaintiffs, were encouraged to apply for the new positions in the Aurora facility. Each was evaluated along with other candidates based on leadership and supervisory skills, technical abilities and other factors. Based on legitimate, non-discriminatory reasons, Plaintiffs were not

selected for the new positions in Aurora. During the interview process, Plaintiff Wentland stated that he was not interested in the new approach to repairing appliances

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and instead said that he wanted to retire and take Sears'enhanced retirement package. Accordingly, he was not selected. Plaintiff Breithaupt performed poorly on the technical interview, and she was not selected for this reason. Plaintiff Green was not selected because his leadership and supervisor skills were not as strong as those of the other candidates and because he was unsupportive of the new facility and Sears' new process for repairing appliances. Each of the Plaintiffs who could work as a Field Technician was offered an alternative position working as an appliance repair technician in the field. Each indicated that they could not work in the field for medical reasons. After signing a release of all claims, including claims for age discrimination, each Plaintiff took Sears' offered severance packages. In addition to Sears' legitimate, non-discriminatory reasons for selecting technicians other than Plaintiffs, and Sears'attempts to find Plaintiffs alternative work, other factors will further demonstrate that age was not a factor in Sears decision not to hire Plaintiffs for the redesigned repair facility. Specifically, Sears also laid off younger workers; it hired a large number of workers over 40 years old; and it hired several technicians older than the Plaintiffs. 4. STIPULATIONS

See attached Exhibit A Joint Stipulated Facts

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5.

PENDING MOTIONS

s Defendant anticipates filing a Daubert/Kumho tire motion with respect to Plaintiff' expert, Jane H. Lillydahl, Ph.D., that will challenge the admissability of evidence from Dr. Lillydahl concerning mitigation of damages or vocational analysis or opinions. In

accordance with the Court' Pretrial Procedures, this motion will be filed within 30 days of s the Pretrial Conference. Plaintiffs are considering filing their own motions regarding Defendant' experts. s 6. a. b. c. WITNESSES

See Exhibit B, Witness List for Plaintiffs Green, Wentland and Breithaupt See Exhibit C, Sears'Witness List See Exhibit B, Witness List for Plaintiffs Green, Wentland and Breithaupt, Expert section, and Exhibit C, Sears' Witness List, Expert Section. 7. EXHIBITS

(1) Plaintiffs: See attached Exhibit D. By designating exhibits, Plaintiffs do not stipulate to their admissibility. Many of these exhibits may be irrelevant or lack foundation, depending on Sears'evidence. Plaintiffs expressly reserve the right to object to exhibits on Exhibit D, based on any available ground. (2) Defendants: See attached Exhibit E. By designating exhibits, Defendant does not stipulate to their admissibility. Many of these exhibits may be irrelevant or lack

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foundation, depending on Plaintiffs'evidence. Defendant expressly reserves the right to object to exhibits on Exhibit E, based on any available ground. b. Copies of listed exhibits must be provided to opposing counsel no later

than five days after the Pretrial Conference. The objections contemplated by Fed.R.Civ.P. 26(a)(3) shall be filed with the clerk and served no later than 30 days before the scheduled date of the Final Trial Preparation Conference unless otherwise ordered. 8. DISCOVERY

The Parties have discussed a supplemental deposition of one of Defendant' fact s witnesses and Plaintiffs'expert witness. Should these depositions become necessary, the Parties have agreed to work in good faith to schedule them. 9. None. 10. a. SETTLEMENT SPECIAL ISSUES

Counsel for the parties met by telephone on September 13, 2006 to discuss in good faith the settlement of the case.

b. c. d.

The participants in the settlement conference, included counsel. Counsel for the parties do not intend to hold future settlement conferences. It appears from the discussion that there is no possibility of settlement.

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11.

EFFECT OF PRETRIAL ORDER

Hereafter, this Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings are deemed merged herein. This Pretrial Order supersedes the Scheduling and Discovery Order. In the event of ambiguity in any provision of this Pretrial Order, reference may be made to the record of the Pretrial Conference to the extent reported by stenographic notes and to the pleadings. 12. TRIAL AND ESTIMATED TRIAL TIME/FURTHER TRIAL PREPARATION PROCEEDINGS The trial is to a jury. Estimated time is 10 days. The trial will be held at Alfred A. Arraj, United States Court House, Court Room A-802. b. c. Trial Date: January 29, 2007 (dates modified at court' request). s Final Trial Preparation Conference Date: January 17, 2007 at 10:00 a.m. Deadline for filing motions objecting to any testimony of an expert witness based on the requirement of Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993), Kumho Tire Co. V. Carmichael, 526 U.S. 137 (1999), and their progeny: 30 days after the date of the Pretrial Conference. Any such objections not identified in Section 9 of this Order and filed by motion by this date are deemed waived. Unless otherwise ordered, a written
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a.

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response to such a motion must be filed no later than 20 days after the motion is filed. A reply, if any, must be filed no later than 15 days after the response. d. Deadline for filing all other motions in limine, including objections to exhibits and designated deposition testimony: 30 days before the scheduled date of the Final Trial Preparation Conference. Unless otherwise ordered, a written response to such a motion or objection must be filed no later than 15 days after the motion is filed, and the reply, if any, must be filed no later than 11 days after the response. DATED this 28th day of September, 2006. BY THE COURT: s/John L. Kane JOHN L. KANE, Senior Judge United States District Court PRETRIAL ORDER APPROVED: s/Margaret B. Funk Diane S. King Margaret B. Funk King & Greisen, LLP 1670 York Street Denver, CO 80206 (303) 298-9878 Attorneys for Plaintiffs Green, s/Daniel E. Friesen Daniel E. Friesen Hale Hackstaff Friesen, LLP 1430 Wynkoop, Suite 300 Denver, CO 80202 (720) 904-6000

Attorney for Defendant

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