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

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

Defendant's Undisputed Facts 1. In November 1999, each of the Plaintiffs worked at Sears' appliance repair shop in Thornton, Colorado. At that time, Sears announced that it was closing the Thornton repair shop and opening a new shop repair facility in Aurora, Colorado. Affidavit of Stephanie Brooks, Exhibit A ("Brooks Aff.") ¶ 1 2. In February and March 2000, Sears eliminated all shop repair technician positions in Thornton and created new technician positions at its redesigned repair facility in Aurora, Colorado. Brooks Aff. ¶ 2.

Plaintiffs' Response 1. Admit

Defendant's Reply 1. Admitted

2. 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, 1

2. Immaterial. Plaintiffs do not claim that the overall redesign of the repair process was discriminatory or a pretext for discrimination.

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Defendant's Undisputed Facts

Plaintiffs' Response Padilla Depo, 22:19-24:9; 105:21-25; 106:11-25; 109:2110:13; 117:6-11; 118:4-9; 122:20-25; 123:11-23; 128:12130:13; 134:13-23; 135:18136:14; 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, 34:925.) 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 2

Defendant's Reply

3. Sears' plan was to change to an assembly line approach in Aurora, whereby technicians would diagnose problems and then supervise repairs by installers and helpers. The company hoped to achieve greater efficiency and customer service by redesigning its repair process in this manner. Brooks Aff. ¶ 3.

3. Immaterial. Plaintiffs do not claim that the overall redesign of the repair process was discriminatory or a pretext for discrimination.

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Defendant's Undisputed Facts

Plaintiffs' Response 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 term and competent employees.

Defendant's Reply

4. Plaintiffs do not have any facts indicating that the decision to eliminate shop technician positions and redesign the repair process was based on a bias against older workers. Wentland Dep., Exhibit B hereto, 59:2360:6; Breithaupt Dep., Exhibit C, 62:7-12; Green Dep., Exhibit D, 101:22-102:15. 5. Because of the assemblyline approach, leadership skills and technical diagnosis skills were particularly important for the new positions. Diagnostic

4. Admitted.

5. Admit. However, technical diagnostic skills and leadership skills had always been important to performing the technician's position at the 3

5. Admitted.

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Defendant's Undisputed Facts skills were important because the technicians needed to accurately diagnose problems so that appliances could be passed on to installers and helpers. Leadership skills were similarly important because Sears planned to have technicians supervise the helpers and installers. Brooks Aff. ¶ 4. 6. For all Thornton shop technicians who applied for the new positions, Sears conducted two interviews ­ a technical interview and a leadership interview. Brooks Aff. ¶ 5.

Plaintiffs' Response Thornton shop. (Ex. 4, Green Depo, 84:12-22; 85:13-17.)

Defendant's Reply

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 UF' 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. Sears brought in a redesign 7. Deny. The only evidentiary team of four people to conduct source cited for this assertion the interviews and make the is the affidavit of Brooks. As final recommendations: Dan noted in part of this paragraph, Perry, Nancy Savard, Robert Brooks conducted no Garcia and Steve Currier. The interviews of current interviews were each employees herself and was not scheduled for 30-45 minutes. on the interview team. (Ex.6, The results in various Savard Depo, 13 1:3-4.) She categories were tallied on a also has never testified that numeric scale, with 1 being she had any involvement in the lowest 5 being the highest, drafting the interview forms and 3 being "acceptable." used, interpreting those forms 4

6. Undisputed. Plaintiffs do not deny the fact. They merely deny Ms. Brooks had a foundation to make this statement. Her affidavit, however, is on personal knowledge, and Plaintiffs' own allegations demonstrated, beyond dispute, that she was the ultimate decision maker involved throughout the process. In addition, Sears has provided extensive documentation of the two interviews for each of the Plaintiffs. Pl's Exs. 16, 17, 56, 27 & 28. 7. Undisputed. Brooks' affidavit says she had personal knowledge, she was involved in the process, and other documents, including interview forms confirm this fact. See documents referred to in 6 above.

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Defendant's Undisputed Facts Brooks Aff. ¶ 6.

Plaintiffs' Response

Defendant's Reply

8. Following the interview process, the redesign team held a telephone conference with the Unit Manager of the new Aurora facility, Stephanie Brooks, to discuss all the candidates and make recommendations. Brooks Aff. ¶7. 9. Before the call, Ms. Brooks had gathered some historical information about the candidates' performance, and she summarized the numeric results of their interviews. Brooks Aff. ¶ 8; Exhibit E.

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, 216:18217:12.) Accordingly, she has no personal knowledge to support this factual assertion. 8. Admit. 8. Admitted.

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 5

9. Undisputed. Plaintiffs dispute the accuracy of the data gathered, not the fact that it was gathered. Moreover, the accuracy of historical performance data is not material to Plaintiffs' arguments concerning pretext.

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Defendant's Undisputed Facts

Plaintiffs' Response 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, 73:425, 73:3-75:25; 91:4-92:10, 91:4-13, 114:19-115:15,120:1121:18, 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 6

Defendant's Reply

10. Ms. Brooks made the hiring decisions based on the redesign teams' perception of the candidates' technical and leadership skills as assessed by the redesign team during the interviews and conveyed to her by the members of the team. Brooks Dep., Exhibit F, 43:5-44:5; 47:6-18; 49:9-51:2; 59:21-61:11.

10. Undisputed. As set forth in Sears' Reply Brief, Ms. Brooks' reasons have been consistent. In general she made her decisions based on feedback from the interviews. In one case, that feedback was corroborated by her personal experience with Mr. Green. That corroboration does not raise a disputed issue about the fact that she received feedback from the interviews or the nature of the feedback she received. Plaintiffs cannot dispute that fact because they were not present during the reports on the interviews.

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Defendant's Undisputed Facts

Plaintiffs' Response making her decision, another glaring contradiction to this alleged UP. 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 Breithaupt. (Ex. 2, Brooks 2005 Depo, 60:14-18, 60:2561:6.) 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 nontechnician 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, 48:2349:11; 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 7

Defendant's Reply

11. Sears did not consider applicants for positions that would have paid more than 10 percent below their previous positions. This practice, known as "the 10 percent rule," is not a written policy, but it was a consistently applied practice. During this reorganization, Sears applied this practice consistently, regardless of age, to both Plaintiff Charles Green and to Randy Shioshita who was 35 years old at the time. Brooks Dep. 65:2-10; 166:20-167:10; Fanning Dep., Exhibit G, 78:6-13; Brooks Aff. ¶ 9.

11. Although there is considerable dispute about the existence of a 10 percent rule. There is no dispute that the ultimate decision maker, Ms. Brooks, believed there was such a rule and she applied it consistently regardless of age.

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Defendant's Undisputed Facts

Plaintiffs' Response

Defendant's Reply

12. If the redesign team did

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; 164:317; Ex. 10, Fanning Depo, 137:8-14, 87:15-23, 138:1719, 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). 12. Deny. Again, the only 12. Undisputed. Plaintiffs' 8

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Defendant's Undisputed Facts not believe any technician from Thornton had the necessary skills for one of the new positions, Sears then sought qualified candidates from outside the Thornton repair shop, including candidates from other Sears repair shops and outside the company. Brooks Aff. ¶ 10.

Plaintiffs' Response

Defendant's Reply challenge to Sears' foundation is not sufficient to raise a factual issue. Moreover, the only factual issue raised is whether the second step in the two step process occurred consecutively or simultaneously with the assessment of technicians from the Thornton shop. This is not a material dispute.

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, 198:24200:4.) 13. If an applicant was not 13. Deny. Sears did not seek selected for a position in the to place at least one internal new facility, Sears sought to applicant, Green, in another place them in another position. position. (Ex. 4, Green Depo, Brooks Aff. ¶ 11. 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. Part of Sears' planning for

14. Admit. 9

13. Undisputed. It is undisputed that part of the process design was to place employees in other positions where possible. Plaintiff's Ex. 11 at Bates No. 0211. It is similarly undisputed that Sears attempted to place everyone but Green in an alternative position. UF ¶¶ 27,35,48. It is also undisputed that the people who would have been able to place Mr. Green in an alternative position believed he was unable to perform that job because of medical reasons. UF ¶ 48 and Pl's Ex. 2 at 67:8-21. Admitted.

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Defendant's Undisputed Plaintiffs' Response Facts the reduction in force associated with closing the Thornton shop involved enhanced retirement options and severance benefits. Sears enhanced retirement options by allowing employees to receive benefits earlier and to continue on the payroll, without working, for up to a year so that they could bridge to vesting dates and continue health insurance. Brooks Aff. ¶ 12. Exhibit H at 0365, 0377. 15. Sears also adopted a 15. Admit. severance program for technicians who lost their jobs as a result of their positions being eliminated. To be eligible for severance, employees were required to go through the interview process and not be selected either for the new facility or other positions within Sears. Exhibit H at 0374; Brooks Aff. ¶ 13. 16. Employees could get both 16. Admit. retirement benefits and severance, but only if (1) they met the early retirement criteria, (2) they went through the selection process for the new Aurora facility but were not selected, (3) they were not offered (or could not perform) any other positions within Sears, and/or (4) they resided over 50 miles away from the new facility. Brooks Aff. ¶ 10

Defendant's Reply

15. Admitted.

16. Admitted.

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Defendant's Undisputed Facts 14. 17. Several technicians who were retirement eligible went through the interview process, but stated during the interviews that they did not wish to be hired for the new jobs. They preferred instead to get the severance package and their retirement benefits. These individuals were not selected for positions in the new facility. Brooks Aff. ¶ 15; Spenner Decl., Exhibit I, ¶ 5. 18.Other than giving consideration to employees who stated that they did not want jobs in Aurora because they wanted to retire, neither the interview team nor Ms. Brooks considered an applicant's retirement plans as a criteria in making the selections for the new Aurora facility. Everyone associated with the interview/hiring process testified that an applicant's retirement plans were neither relevant nor considered. Brooks Dep. 93:1­94:8; Perry Dep., Exhibit J, 52:20­53:20; Garcia Dep., Exhibit K, 49:22­50:15; 74:2­ 5. Sears hired three applicants for the new Aurora facility (Weinzapfel, Beckman and Reavis) who were retirement eligible at the time they applied. Brooks Aff. ¶ 16.

Plaintiffs' Response

Defendant's Reply

17. Admit in part, deny in 17. Admitted. Ms. Brooks part. Admit that Spenner's affidavit confirms the facts statement says what it purports beyond Spenner's affidavit. 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 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 an interview, as such 11

18. Undisputed. Notes mentioning an applicants retirement plans are clearly relevant given the desire of many employees to take advantage of the early retirement options Sears was offering. Notes on retirement planning do not rebut the undisputed testimony from Garcia and others that they did not consider retirement plans in their hiring decisions. Nor do Plaintiffs dispute that Sears did, in fact, hire three applicants who were retirement eligible, thereby confirming that retirement plans were not considered.

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Defendant's Undisputed Facts

Plaintiffs' Response

Defendant's Reply

19. Plaintiff Phillip Wentland was a repair technician in the Thornton Lawn and Garden (L&G) shop in November 1999. He applied for a L&G technician position at the new Aurora facility when his position in Thornton was eliminated. Wentland Dep. 96:21-97:2; 98:10-12. 20. Mr. Wentland's leadership interview was conducted by Dan Perry on January 27, 2000. Mr. Wentland told Mr. Perry during the interview that he did not want the job and that he wanted to retire rather than take a position at the new Aurora facility. Perry Dep. 71:25-72:10.

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. Admit. 19. Admitted.

20. 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. 12

20. Undisputed. Mr. Perry's sworn testimony confirms Mr. Wentland's comment. Mr. Wentland, during his deposition stated that he did not remember anything about his conversation with Mr. Perry. UF ¶ 22. He cannot now contradict that deposition testimony. Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986).

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Defendant's Undisputed Facts

Plaintiffs' Response 0561.) ("Wentland mentioned he is planning on retiring in another year-and-a-half."); (Ex. 5, Wentland Depo, 38:716; 84:17-24.) 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 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. Admit.

Defendant's Reply

21. Mr. Perry's Interview Assessment form gave Mr. Wentland an overall score of 2.7, which is below the "acceptable" level of 3.0. Mr. Perry rated Mr. Wentland as "marginal" in the categories of Change Leadership, Team

Admitted.

13

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Defendant's Undisputed Facts Skills, Initiative/Sense of Urgency, and Interest/Expectations. Mr. Perry noted that Mr. Wentland was "not interested in the team concept," and he recommended "no offer." Exhibit L. 22. Mr. Wentland has no memories of the interview with Dan Perry that could dispute Mr. Perry's statements. Wentland Dep. 98:22-99:6; 112:20-113:12.

Plaintiffs' Response

Defendant's Reply

22. 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 14

22. Undisputed. Mr. Wentland cannot recant his testimony that he has no memories of the interview with Mr. Perry.

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Defendant's Undisputed Facts

Plaintiffs' Response 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. 7, Garcia Depo, 71:22-72:5.) See also response to UF 20, above, and incorporated herein.

Defendant's Reply

23. Mr. Wentland's technical interview was held on January 27, 2000 and conducted by Robert Garcia. Although Mr. Wentland's technical skills were acceptable, he received scores of "marginal" in Interest Level and in Positive and enthusiastic attitude. His technical interviewer noted that Mr. Wentland "would not be happy at the GRC," and he too recommended "no offer." Exhibit M. 24. Mr. Wentland told his supervisor Ray Figueroa that he did not want a position at the new Aurora facility. Figueroa Dep., Exhibit N, 173:22-174:19.

23. Admitted.

24. Admit in part, deny in 24. Admitted. Plaintiff's part. Wentland and his explanation does not deny any part of UF ¶ 24. 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, 177:1317.) However, once Wentland realized that he was too young to receive early retirement 15

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Defendant's Undisputed Facts

Plaintiffs' Response 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; 84:17-24; 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, 133:7-1 1.) 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 16

Defendant's Reply

25. Mr. Wentland himself testified that during the interviews he expressed a series of concerns about the new process, and he told the interviewer that he wanted to retire soon. Wentland Dep. 108:15-109:6.

25. Admitted. Plaintiffs' explanation does not deny any part of UF ¶ 25.

26. Sears' decision not to hire Mr. Wentland for the new Aurora facility was based on his attitude towards 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. Brooks Aff. ¶ 17; Brooks Dep. 59:21-60:4; 72:14-21.

26. Undisputed. As set forth in Sears' Reply Brief, Ms. Brooks' reasons have been consistent.

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Defendant's Undisputed Facts

Plaintiffs' Response interviews," Sears' written statement to 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 17

Defendant's Reply

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Defendant's Undisputed Facts

Plaintiffs' Response

Defendant's Reply

27. After Sears decided not to offer Mr. Wentland a position in Aurora, the company offered him a position as a field technician. Although he had been driving to and from work, Mr. Wentland declined Sears' offer, stating he was unable to drive because of his blood pressure medication. Wentland Dep. 118:4-119:6.

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, 73:478:22). 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.) 27. Admit. Wentland was told 27. Admitted. 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, 122:25123:17; 126:20.) It is undisputed that he, accordingly, produced such a 18

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Defendant's Undisputed Facts

Plaintiffs' Response 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. Admit.

Defendant's Reply

28. Mr. Wentland then received a severance package of $18,990. Wentland Dep. 83:14-16.

28. Admitted.

29. Mr. Wentland was 53 at the time he interviewed for a L&G technician position at the new facility. The people hired as L&G technicians in Aurora were Walter Shetskie age 59, George Lang age 35 and Richard Schley age 41. Brooks Aff. ¶ 18. 30. Mr. Wentland's leadership score in the interviews was 2.7. The successful applicants' leadership scores were as follows: Shetskie 3.6, Lang 3.7, Schley 4.0. Brooks Aff. ¶ 19.

29. Admitted.

31. Plaintiff Marilyn Breithaupt was a repair technician in the Thornton Electronics shop in November 1999. She applied for a position as an Electronics

30. 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, Schley 4.0; and Padilla-3.2. (Ex. 21, Bates No. 05251) 31. Admit.

30. Admitted. Ms. Brooks testified that the interview forms were discussed during the conference call and that this formed the basis for her decision.

31. Admitted.

19

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Defendant's Undisputed Facts technician in the new Aurora facility when her position in Thornton was eliminated. Breithaupt Dep. 59:12-18. 32. Mr. Breithaupt's technical interview was conducted on January 29, 2000, by Steve Currier. She received a below "acceptable" score of only 2.7 on the technical interview. Breithaupt Dep. 103:9-12; Exhibit O. 33. Ms. Breithaupt's own testimony confirms that she answered a question incorrectly during the technical interview. Breithaupt Dep. 106:12107:17; 109:25-110:17; 115:717. In response to another question, Ms. Breithaupt stated that she was aware of a new repair technique that Mr. Courier considered better but that she had not been using it. Id 108:20-109:10.

Plaintiffs' Response

Defendant's Reply

34. Ms. Brooks wanted to hire Ms. Breithaupt for the new facility. However, during the telephone conference to

32. 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 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, 106:18109:17). 34. Deny. The only evidentiary support for this factual assertion is the inadmissible hearsay 20

32. Admitted.

33. Admitted. All material portions of this undisputed fact are admitted: Ms. Breithaupt answered a question incorrectly (regardless of whether or not she corrected her answer) and she was not using a new process for testing even though she was aware of it. She confirms this undisputed fact by giving her reason for not using the new process.

34. Undisputed. Plaintiffs do not dispute that Ms. Brooks initially wanted to hire Ms. Breithaupt. This is significant

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Defendant's Undisputed Facts discuss candidates, Mr. Currier conveyed his view that Ms. Breithaupt did not demonstrate a sufficient level of technical competence during the interview. As a result, Ms. Brooks decided not to hire Ms. Briethaupt for the new facility. Brooks Dep. 109:24-110:15.

Plaintiffs' Response 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 21

Defendant's Reply because it conclusively rebuts that Ms. Brooks was looking for any pretextual reason not to hire Ms. Breithaupt. Plaintiffs only challenge is to the hearsay statement of Mr. Currier. Mr. Currier's statement is not offered for its truth, so it is not hearsay. It is offered by Ms. Brooks to show her state of mind. Plaintiffs do not, and cannot dispute, that Ms. Brooks understood that Mr. Currier had rated Ms. Breithaupt at an unacceptable technical level and that this was the reason Ms. Brooks changed her view on hiring Ms. Breithaupt. As set forth in Sears' Reply Brief at II. D. 2., Ms. Brooks' reasons have been consistent. As set forth in Sears' Reply Brief at II. D. 3., Mr. Blankenship's hiring does not dispute Ms. Brooks' reasons for not hiring Ms. Breithaupt. Plaintiffs characterization of Mr. Blankenship's test is inaccurate. That document speaks for itself. Mr. Blankenship's test does not raise a factual issue about Ms. Brooks' reasons for not hiring Ms. Breithaupt, because Plaintiffs offer no proof that Ms. Brooks even saw the test. Mr. Blankenship's test score is immaterial because he

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Plaintiffs' Response 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, 116:19117:3.) 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, 129:16-13 1:10; Ex. 23, 22

Defendant's Reply is not similarly situated with Ms. Breithaupt. It is undisputed that Mr. Currier recommended against hiring Ms. Breithaupt. UF ¶ 34. Plaintiffs own statement concedes that Ms. Brooks did not compare Ms. Breithaupt to Mr. Blankenship. The fact that Ms. Brooks reviewed Ms. Breithaupt's past repair record and confirmed that her repair statistics were not particularly strong, i.e., the fact that she used historical data to test and corroborate the recommendations of the interview team, does not dispute in any way the fact that she relied on the interview team's recommendation. In fact, it tends to support that fact. The fact that Ms. Brooks was the ultimate decision maker does not rebut the undisputed fact that she made her decisions based on the consensus of the group.

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Defendant's Undisputed Facts

Plaintiffs' Response 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, 13 1:15-23.) 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 23

Defendant's Reply