Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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ARGUMENT I. DEFENDANT HAS NOT MET ITS BURDEN AND THUS IS NOT ENTITLED TO SUMMARY JUDGMENT As reaffirmed by the Tenth Circuit in another ADEA case, Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996), "a ruling which deprives a party of determination of the facts by a jury `should be cautiously and sparingly granted.'" Greene, 98 F.3d at 560 (citing Cockrell v. Boise Cascade Corp., 781 F.2d 173, 177 (10th Cir. 1986)). Further, the Tenth Circuit has emphasized that the nonmovant is given "wide berth to prove a factual controversy exists." Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995); Jeffries v. Kansas Dept. of Social and Rehab. Services, 147 F.3d 1220, 1228 (10th Cir. 1998). In determining summary judgment, the district court is not permitted to weigh the evidence, but instead determines "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Bingaman v. Kan. City Power & Light Co., 1 F.3d 976, 980 (10th Cir. 1993); Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1222 (Tenth Circuit held "[a]t the summary judgment stage, `the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Jeffries, supra. In making this determination, the record "must be viewed in the light most favorable" to Plaintiffs, resolving all ambiguities and drawing all reasonable inferences against Sears. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Thus, for summary judgment to be proper, not only must there be no controversy regarding the facts, but there must be no controversy

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regarding the inferences that can be drawn from those facts. Thomas v. Int'l Business Machs., 48 F.3d 478, 484 (10th Cir. 1995); White v. Denny's Inc., 918 F. Supp. 1418, 1426 (D. Colo. 1996); Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 313 (2nd Cir. 1981). The Court should be especially mindful of these general principles in ruling on a summary judgment motion in a discrimination case. The Court should consider whether the evidence could support an inference that the employer acted for discriminatory reasons, not whether the evidence necessarily leads to that conclusion. Garvey v. Dickinson College, 761 F. Supp. 1175, 1186 (M.D. Pa. 1991); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 900 (3rd Cir. 1987). The evidence of the Plaintiffs as the non-movant must be believed, and all justifiable inferences are to be drawn in their favor. Hinsdale v. City of Liberal, 19 Fed. Appx. 749, 754 (2001) (citing Anderson, 477 U.S. at 255); see also, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). Summary judgment is particularly inappropriate for resolving claims of employment discrimination because motivation and intent are crucial elements of these cases and are most often proved by inferences drawn from circumstantial evidence. Randel v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995); Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir. 1980). In addition, the relative merit of each party's case depends significantly on credibility determinations. Hase v. Missouri Div. of Empl. Sec., 972 F.2d 893, 897 (8th Cir. 1992), cert. denied, 508 U.S. 906 (1993). For these reasons, the factual elements of a discrimination case are "peculiarly within the province of the fact-finder." Thornbrough v. Columbus & G.R. Co., 760 F.2d 633, 640-41 (5th Cir. 1985). In sum, credibility determinations, the weighing of the evidence, and the drawing of

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legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. II. THE MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK Under Tenth Circuit precedent, Plaintiffs can rely on the three-stage order of proof and presumptions, satisfying their burden of proof using circumstantial evidence. See generally St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-12 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 80004 (1973). At the first stage, Plaintiffs bear the burden of establishing a prima facie case of discrimination. See Burdine, 450 U.S. at 252-53. Then, at the second stage, Sears has the obligation to produce evidence of a legitimate, nondiscriminatory reason for the adverse employment action. Id. at 253. Provided Sears meets this burden of production, the presumption of unlawful discrimination drops from the case (see id. at 255 n. 10) and then the Plaintiffs have the burden, at the third stage, to show that the Sears' proffered reason is merely pretext for discrimination. See id. at 253. Sears does not allege that Plaintiffs have not established their prima facie case, but rather states that it is assumed arguendo for the purposes of summary judgment determination, that Plaintiffs' prima facie case is established.1 Brief, p. 1-2, 14-15. In accord, Sears argues only

Generally, under the ubiquitous three-step burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to raise a presumption of discrimination in failure-to-hire cases, a plaintiff must show that (i) plaintiff belongs to a protected class; (ii) plaintiff "applied and was qualified for a job for which the employer was seeking applicants"; (iii) despite being qualified, the plaintiff was rejected; and (iv) after plaintiff's rejection, "the position remained open and the employer continued to seek applicants from persons of [plaintiff's] qualifications" or was filled by someone outside of the protected class. Id. at 802. As noted in Disputed Facts Nos. DF 63-64, 66, 69, 70-71, 73-86, 145 Plaintiffs have met this burden. Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1316 n. 11 83

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that (1) Plaintiffs have no direct evidence of discrimination and thus, must utilize the McDonnell Douglas burden-shifting framework outlined above; and (2) Plaintiffs cannot allegedly establish that its alleged legitimate, non-discriminatory reasons for their non-selection was pretext for age discrimination. Id. Accordingly, Plaintiffs will not brief the issue of whether their prima facie case has been met, since Sears has not raised that defense in its Motion.2 Looking to the issue of pretext, as discussed below, the Plaintiffs' age claims survives summary judgment because the facts, when viewed in a light most favorable to them, clearly present a genuine issue of material fact regarding whether Sears' alleged reasons are pretext. A. Fundamental Factual Disputes Concerning Brooks' (the Decision-Maker's) Alleged Non-Discriminatory Reasons for not Hiring Plaintiffs into any Position at the Aurora Repair Facility, and not Offering Green a Field Technician Position, Predominate This Case and Preclude Summary Judgment

As noted by the Tenth Circuit in Danville v. Reg'l. Lab Corp., 292 F.3d 1246, 1250 (10th Cir. 2002), when assessing whether plaintiff has made an appropriate showing of pretext, the Court must consider the evidence as a whole. Danville., 292 at 1250 citing Washington v. Davis, 426 U.S. 229, 242 (1976) ("[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts.").

(10th Cir.1999) (holding, in a failure-to-hire case, that plaintiff had met her prima facie burden by showing, through credible evidence that included plaintiff's own testimony, that she was minimally qualified for the position she sought, even though the defendant disputed that evidence). Sears has waived its additional defense to support judgment ­ concerning the sufficiency of Plaintiffs' prima facie case -- by failing to assert them it in its Motion. Hill v. Kan. Gas Service Co., 323 F.3d 858, 866 (10th Cir. 2003); see also Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 536 (10th Cir. 1994). 84
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1.

Sears Has Weakness, Inconsistencies, and Contradictions In Its Alleged Legitimate, Non-Discriminatory Reasons for Not Selecting Plaintiffs

Plaintiffs are not required "disprove" Sears' stated reasons for their termination at the summary judgment stage; rather, the Plaintiffs' burden is merely to demonstrate a genuine dispute of material fact as to whether Sears' (and specifically, Brooks') proffered reasons not to hire them are worthy of belief. Morgan v. Hilti, Inc., 108 F.3d 1319, 1321 (10th Cir.1997). "[E]stablishing pretext gets plaintiffs over the hurdle of summary judgment." Id. at 1323 (quoting Randle v. City of Aurora, 69 F.3d 441, 452 (10th Cir.1995)). As noted by the Tenth Circuit in Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002), one of the ways of demonstrating pretext is by revealing: weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action [such] that a reasonable fact finder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reason . . . Garrett, 305 F.3d at 1217 (internal quotation omitted). A review of the record reveals that Brooks' alleged legitimate reasons for not selecting Green, Breithaupt or Wentland for any the positions they applied are riddled with "weaknesses, implausibilities, inconsistencies, and contradictions." Id. 2. Plaintiff Charlie Green a. Green's application for the Mechanical Service Technician Position at the Aurora Repair Facility:

The legitimate, non-discriminatory reason now given by Brooks for her decision not to hire Green into the position of Mechanical Service Technician are the results of his "leadership

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interview, the report on that interview during the conference call, and Mr. Green's separate comments to Ms. Brooks." UF 47. These three reasons are not the same reason Brooks put forth at other points of the litigation, and are full of inconsistencies and implausibilities as demonstrated by the following disputed facts: i. The reasons Brooks gave for his termination have changed over time:

The reasons now given by Brooks are different from the reasons given by Sears, and Brooks' in particular, in statements to the EEOC (just months after Green's termination) and Brooks' sworn deposition testimony. Response to UF 47, above. The mere fact that Brooks has offered new sets of reasons "after-the-fact" regarding her non-selection of Green for this position supports an inference of pretext. See Plotke v. White, 405 F.3d 1092, 1103 (10th Cir. Apr. 28, 2005) (post hoc reasons for termination constitute evidence of pretext); McGarry v. Bd. of County Comm'rs, 175 F.3d 1193, 1200 (10th Cir.1999) (stating that a change of story tends to show pretext); Toth v. Gates Rubber Co., 2000 U.S. App. LEXIS 14374 (10th Cir. 2000) (court reversed summary judgment for employer on retaliation and discriminatory discharge claims based on evidence that key supervisors provided contradictory testimony about grounds for termination of plaintiff's employment and about how that decision was made.) ii. Brooks' current reasons for not hiring Green conflict with other facts Sears asserted are undisputed:

At the eleventh hour, Brooks is seeking to supplement her reasons for not hiring Green, while initially stating that she relied only on the interviews, Brooks' new statement that she considered her ex parte communications with Padilla about wanting to work on lawnmowers, and her ex parte communication with Green that he did not want to work on lawnmowers, refers 86

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to information she obviously gathered outside of any interview process. UF 47. Specifically, Sears concedes in its UF 10 that, in Sears' own words, "Ms. Brooks made the hiring decision 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." Either she made the decision based on interviews, as Sears has claimed throughout this litigation, or she did not, and instead, used information she gathered outside the interview process - including these two previously undisclosed conversations. It cannot be both. Compare UF 10 & 47 (and record citations cited therein). iii. Brooks' statement that she made the decision because of a negative recommendation by Savard is also only supported by Brooks' repetition of hearsay statements by Savard:

As discussed in Plaintiffs' DF 91 -92, above, Savard does not recall a single thing about Green's leadership interview. She also cannot tell (from those parts of her interview notes that she believes she actually filled out) whether she would have recommended him or not, admitting that it was entirely possible she did recommend him for hire. DF 99. She also testified that just because he received a "marginal" rating that, in and of itself, was not a bar to receiving an offer. DF 99. Also, when compared to the specific recollections of Green's other interviewer, Garcia, (that Garcia thought Green had a great attitude and showed a lot of enthusiasm as well as technical aptitude for the technician position)(DF-119, above), a strong inference can be drawn that Green would have performed similarly well in his interview with Savard. Finally, Sears goes out of its way to describe Green's impression of his interview with Savard - five (5) years after the fact - in an attempt to convince the Court that because Green felt

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nervous and frustrated, he must have flunked the interview. UF 42, Briefs p. 16-17 (after describing Green's deposition statements about how he felt and what he "perceived" five (5) years later Sears stated that "not surprisingly" Green received a "marginal" rating from Savard). Even the redesign team understood that the applicants would be frustrated to have to reinterview for their positions. Savard testified, as Perry did, that she understood that because candidates would feel apprehensive about interviewing and about the new redesign process in general, she did not consider that reaction when deciding whether candidates would be qualified. DF 101-102. Further, Savard actually testified she never had an interviewing inexperience in which a candidate appeared "frustrated," rebutting Brooks' recitation of how Green's interview went. DF 100. Yet, Sears continues to assert that it was, in part, because of that "unsupportive attitude" Green allegedly conveyed to Savard, prompting an alleged no-offer recommendation, that Brooks decided not to hire Green for the Mechanical Technician position, while remaining silent on why Padilla was a better candidate even though she also allegedly told her leadership interviewer she was "not especially excited but a bit apprehensive" Brief, p.17, DF 111. And her technical interview reflects she did not think the processes would work. DF 111-112 iv. Brooks' statement that she made the decision because of a negative recommendation by Savard is also not supported, and her credibility seriously challenged, by the fact that the negative hand-written comments on Savard's interview score sheet for Green are not, in fact, Savard's and their author remains unknown.

The only derogatory handwritten comments on Savard's Leadership Interview score sheet for Green are undisputably not in Savard's hand-writing ­ the only person present in the room besides Green. DF 95-97 Savard denied multiple times that she wrote the negative comments Sears continues to rely on to support Green's termination - notes Sears' used to 88

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defend itself when responding to the EEOC and notes Sears is still quoting from to support alleged legitimate, non-discriminatory reason for not selecting Green. UF 44; DF 96. Further, the detailed question-and-answer portion of the Leadership Interview form Sears produced to Plaintiffs, under the representation that they were additional notes of Savard's leadership interview with Green, are also not in Savard's hand-writing and still remained unidentified. DF 97. There are also a number of very negative comments about Green's attitude and superficially his "team skills" (a leadership criteria, not a technical criteria) at the bottom of Garcia's technical interview score sheet for Green. DF 116 Those negative comments are, again, not Garcia's and not Savard's comments. DF 116. There is not a single document in existence purported to reflect Green's performance in his Leadership Interview that was not mysteriously altered, or outright forged. Brooks stated that she was allowed to write on the interview sheets, even though she did not take the interviews. see DF 95-97,116, Yet Sears continues to rely on these unclaimed negative comments in defending its position. We may never know whose notes they are - but we do know that the only person that had anything to gain by their presence is Brooks, who found herself in the difficult spot of defending her decision to terminate an employee that performed consistently for Sears for over thirty-seven (37) years. v. Brooks' testimony concerning why she chose Padilla is likewise inherently inconsistent and contrary to Brooks' prior sworn testimony:

Josie Padilla, a much younger employee with far less seniority, was hired instead of Charlie Green. Brooks' newly asserted reliance upon Padilla's alleged interest in working on a

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lawnmowers is not credible. First, Brooks hired Padilla over Green and another older, long-term employee, Stear, for the Mechanical Service Technician position. DF 106-107. Brooks conceeds it looks like Padilla had not even applied for that position when she choose Padilla over Green. DF 107. Second, as noted in the Sears' Mechanical Service Technician job description, that position does not involve work on lawn-mowers. Ex. (Plaintiffs' Bates No. 35) There is a separate position, the Lawn & Garden Service position, that works on lawn-mowers. Ex. 11. When Padilla was selected, she was still assigned to the Lawn & Garden shop in Thornton, as opposed to Green and Stear who were both assigned to and doing Mechanical Shop work in Thornton as they had done for many years. DF107,198,199. Third, Brooks neglected to mention her conversations with Padilla or Green about their desire to work in her deposition - it appeared as a new reason only in her affidavit submitted to support Sears' summary judgment. DF 114. Fourth, Padilla and Green's leadership interview scores were identical (both received a 2.9 score) depending on how Padilla's is calculated. DF 110. The negative comments about Padilla's apprehension, her negative relationship with her co-workers (she said they would think she is a "bitch") and that she had a hard time working with male employees have never been challenged by Sears nor even addressed by Brooks. And could easily infer to a jury that Padilla did not fair as well in her leadership interview as alleged. b. Green should have, at a minimum, been hired as an Installer/Helper at the Aurora Repair Facility:

The legitimate, non-discriminatory reason now given by Brooks for her decision not to hire Green into the Installer/Helper position is that under an alleged policy that employees were 90

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forbidden from taking jobs with a greater than ten percent (10%) pay cut during the reorganization, she could not offer one of those jobs to him (the other two jobs ­ Installer/Helper and Artisan ­ amounted to a more than ten percent (10%) pay cut for Green). UF 11 & 40. A reasonable jury could certainly conclude that the "ten percent (10%) rule" is a total fabrication: · Brooks and Fanning testified under oath that they believed that the ten percent (10%) rule was a written policy they had both reviewed DF 131), yet, they were unable to ever produce the policy, and Sears now concedes that this alleged policy was unwritten. UF 11 and DF 132. · Every corporate redesign team member that was deposed denied that the "ten percent (10%) rule" ever existed. DF 130. · The Manager of the Redesign Team, Ron Medford, also denied the existence of the "ten percent rule." DF 130. His manager, Chuck Nash, also denied the existence of this policy. DF 130. · While Brooks claims that this "rule" was also applied to Randy Shioshita, she testified in 2002 that, as a result of the reorganization, Shioshita was allowed to transfer from his job as a technician in the mechanic's shop (the same job Green held) to a sales position. Response to UF 48 As set forth below, Plaintiffs have information that sales involved more than a ten percent (10%) pay cut. · Breithaupt, also a technician, testified that Brooks mentioned to her that there was a sales job open that she could apply for when she was not selected for a job at the Aurora Repair Facility, and Breithaupt testified that she elected not to pursue it

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further because it resulted in too substantial of a pay cut. Response to UF 48. A jury could conclude that Brooks concocted the ten percent (10%) rule, after-the-fact, to explain why she did not place Green in a helper/installer position - an employee with decades of repair experience who was desperate to stay employed with Sears so as not to lose health insurance coverage for his disabled adult son.3 c. Green's application for the Artisan Position at the Aurora Repair Facility:

The legitimate, non-discriminatory reason now given by Brooks for her decision not to hire Green into the Artisan position is also that he was prohibited from taking this job under the "ten percent rule." UF 11 & 40. Not only does the "ten percent rule" not exist, as discussed above, if it did exist, it still does not explain why Brooks did not consider Green for the Artisan position. While Brooks generally claims that because of the "ten percent (10%) rule," Green was only considered for the Mechanical Service Technician, and not the Artisan position, Sears conveniently omits the rate of pay for the Artisan position, (or the Installer/Helper position, for that matter). See UF 40. Significantly, the salary mid-point for the Artisan position, per Sears' own policy, is exactly the same as the salary mid-point for the Mechanical Technician position Green applied for - $15.00 per hour. DF 129 If Green was not prohibited from applying for the Mechanical Technician under the alleged "ten percent rule," he could not have possibly been prohibited from applying for the Artisan position. Accordingly, Brooks' vague assertion that this job paid significantly less is belied by Sears' own pay policy.

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The proffered reason for the action taken against the minority employee must be reasonably specific and clear. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981). Because Sears failed to provide any details at all to support its alleged nondiscriminatory reason for not placing Green in the Artisan position, Plaintiffs contend that Sears has failed to meet its burden of producing a legitimate, non-discriminatory reason under the McDonnell Douglas test. Thus, Green need not even establish pretext for that decision. d. Sears Also Concocted A Factually-Unsupportable Reason For Not Offering Green A Field Technician Position (Also Called A Site Position Or Outside Position):

Sears' failure to offer Green an open Field Technician position is also suspect. Sears now claims that had Fanning and Mufic known Green wanted the job, they would have hired him. UF47. They also argue that all of these individuals had a good faith belief that he was medically unable to do the job. Id. It is undisputed that there is no note, never was a note and that the note was requested by company policy if Green wanted to be excused from taking the job. DF 138-139. The stories provided by Brooks, Mufic and Fanning regarding how they all came to the understanding that Green was allegedly medically unable to work outside of the shop, are internally inconsistent. DF 138. Moreover, they have concocted an alleged medical note they claim Green provided, which Sears has never been able to produce ­ because it does not exist. DF 139. Clearly, a jury could believe Green's undisputed testimony that he told Fanning he wanted the position and she brushed him off stating "no, we are just going to retire you," since, as it turns out, that is exactly what Sears did. DF 141.

Brooks testified that Fanning and Mufic offered Green the field technician position.

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Response to UF 48. All three confirm that Green was required to secure a doctor's note indicating he could not work in the field in order to get the severance package. Id. In accord, Fanning testified that she actually saw a doctor's note excusing Green from the position, although she later reversed her self testimony on that point. Id. 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. Id. Fanning specifically recalled telling Green about the open field technician position, 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. Id. Accordingly, since she cannot remember their conversation, she cannot rebut Green's testimony that he told her wanted the job. 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 fifteen (15) years before it chose not offer him a field condition. DF 142 Specifically, in approximately 1984, after working in the field as a technician for approximately twently-two (22) years, Green asked if he could work in the shop for six (6) to eight (8) months to heal his back. Id. He asked to return to the field after his back healed- Sears said no. 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 years before he was not selected for a position at the Aurora Repair Facility, do not support these witnesses' alleged "good faith belief" that Green was physically unable to do technician work in the field as opposed to in the shop at Thornton. e. Conclusion:

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Sears' argument that it (1) has legitimate non-discriminatory reasons for denying Green the opportunity to work in four (4) different positions he expressed interest in during the redesign; and (2) that even if the decision now looks like poor decision, summary judgment should be entered based upon Brooks' "good faith belief" that Green had performed poorly in a brief, subjective interview that she did not participate in, that he was ineligible for the Installer/Helper and Artisan jobs under the "ten percent rule" and he did not have medical clearance to work as Outside/Field/On-Site Technician functions, facts. Viewing the aggregate package of proof offered by Green and taking all inferences in his favor, Green has raised a genuine issue of fact as to whether Sears' reasons to not place in him in any one (1) of the four (4) open positions listed above are pretext. Reeves. 2. Plaintiff Marilyn Breithaupt a. Brooks' changing set of reasons for why Breithaupt was not offered an Electronic Technician position at the Aurora Repair Facility are also riddled with inconsistencies and contradictions.

Sears has also given inconsistent and varying reasons for Breithaupt's non-selection. First Set of Reasons: The first set of reasons Sears gave for not hiring Breithaupt, given in its statements to the EEOC Investigator, were that it made a legitimate business decision not to offer Breithaupt a position at the Aurora Repair Center because of her "demonstrated lack of basic technical diagnostic and troubleshooting skills." Sears' position was that Breithaupt was given a "technical interview designed to demonstrate her abilities to diagnose and repair appliances" and that Breithaupt received low scores on basic technical diagnostic and troubleshooting skills and, for that reason, she was not offered a position at the Aurora Repair Center. DF 147. 95

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However, when Sears interviewed Breithaupt for the position at the Aurora Repair Center, she was not given a "technical interview," as Sears had reported to the EEOC investigator. In reality, Currier asked her two (2) questions, neither of which were a representation of Breithaupt's technical ability, including how to replace a picture tube in a television, and to view two diagrams and respond as to the voltage in each diagram DF 148. Breithaupt initially reversed her answers, but immediately corrected her response, thereby ultimately giving the correct response. (Sears has not produced any testimony from Currier to rebut Breithaupt's recollection of her interview, so her description must be credited in the Court's summary judgment determination.) DF 148. Second Set of Reasons: The second set of reasons sears gave for not hiring Breithaupt are as follows: In Brooks' deposition, Brooks first testified (1) that she did not hire Breithaupt based on the hearsay evidence that Currier allegedly told her that Breithaupt had answered some of the technical questions incorrectly; (3) Breithaupt was not hired because Brooks had "better candidates to fill the position;" and Brooks specifically 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. DF 152. Third Set of Reasons: In support of Sears' summary judgment motion, Brooks is back to the story that she made the decision based again, just on her inadequate performance in her short technical interview, and adds that she actually "wanted to hire to Ms. Breithaupt for a position at the new facility. UF 34 Further, Brooks no longer lists Breithaupt's past performance as a consideration supporting her decision to terminate her. UF 34. (This is no surprise as Breithaupts' 26 years of good past performance could be easily proven. DF 145.

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i.

Brooks' Justification that Breithaupt was not hired because of her poor performance in her technical interview is Inconsistent and Contradicted by Other Testimony, Evidencing Pretext.

Breithaupt had been employed by Sears for twenty-six (26) years, was trained and certified by Sears to work on electrical appliances and had received many accolades, awards and positive performance reviews. DF 145. In her 2005 deposition, Brooks testified that she and the redesign team made the decision regarding who to hire by "consensus," and that her desire to hire Breithaupt was "overridden" by the team. DF 39. Yet, now, Brooks claims she was the only decision-maker. Id. For Sears to defend this action, Brooks must be the decision-maker since Sears does not have any testimony from Currier, Breithaupt's technical interviewer, regarding whether he recommended her for hire or not. Accordingly, Sears has no testimony to contradict Breithaupt's testimony that she her technical interview was hardly a "technical skills review" as Sears alleges, nor testimony to rebut her testimony that she performed well in her technical interview. DF 148. It also remains undisputed that Breithaupt provided 26 years of excellent repair work for Sears utilizing the identical repair work she would have been doing at the Aurora Repair Facility had she been hired. (See DF 149 regarding Perry's statement that all long-term employees were presumed technically sound and thus their interviews were essentially perfunctory.) ii. Brooks' Reasons for Hiring James Blankenship over Breithaupt for the Electronic Service Technician position at the new Aurora Repair Facility Are Also Inconsistent and Contradicted by Other Testimony, Evidencing Pretext.

Breithaupt had been employed by Sears for twenty-six (26) years, was trained and certified by Sears to work on electrical appliances and had received many accolades, awards and 97

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positive performance reviews, yet James Blankenship was hired instead of Breithaupt for the television repair Electronic Technician position ­ one of the "better candidates" Brooks claimed in her deposition. Id., UF 37; DF 145. Blankenship was hardly the "better candidate." Blankenship was not employed by Sears when he was hired. He scored in the lowest possible ranking category, the category of "POOR RISK" on his Service Technician Series Exam when he applied for the same Electronic Service Technician position as Breithaupt. DF 155-156. Further, Brooks' testimony about why and who made the decision to hire Blankenship is suspect. When shown Blankenship's poor television repair test score in her 2005 deposition, Brooks first testified that she had not recalled previously seeing Blankenship's poor score sheet and that another Sears' employee, Virginia Ballou, actually made the final decision to hire James Blankenship without telling Brooks that he had done poorly on technical and team skills. DF 157-158. Only when confronted with her own hand-written interview notes did she conceded she was involved in hiring. DF 157-158.4 iii. The Field Technician Offered to Breithaupt After She Was Not Selected for the In-House, Carry-In Electronic's Position Had the Same Technical Requirements

Despite allegedly denying Breithaupt a job at the Aurora Repair Facility because she lacked technical competence, Brooks the subsequent Field Technician position offered Breithaupt after she was not selected for Aurora had "similar" technical repair skill requirements

After confronted with Blankenship's documented poor performance, at a later point in her deposition, Brooks contradicted her previous deposition testimony, referenced above, about not hiring Breithaupt because she had "better candidates" than Breithaupt, and testified that she never actually compared Blankenship to Breithaupt. 98

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as the Aurora technician position. DF 159.

c.

Conclusion

Viewing the aggregate package of proof offered by Breithaupt regarding the inconsistencies and contradictions riddling Brooks' reasons for not selecting her for any electronic technician position at the Aurora Repair Facility, and taking all inferences in her favor, Breithaupt has raised a genuine issue of fact as to whether Brooks' reasons are pretext. Reeves. 3. Plaintiff Phillip Wentland a. Brooks' Reasons for Why Wentland was not offered a Lawn & Garden Technician position at the Aurora Repair Facility Contain Inconsistencies and Contradictions.

The reasons now given by Sears to support Brooks' decision to not hire Wentland have changed since Sears first provided its explanation to the U.S. Equal Employment Opportunity Commission, and since Brooks' 2005 deposition. · 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 but wanted to retire instead, his indications that he wanted a severance package, and the resulting two `no offer' recommendations from his interviews." UF 27. 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. DF 176. In her deposition in 2005, Brooks included Wentland's past work performance as a reason for not hiring him. 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. DF 177. 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. Id.

·

·

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There was no mention of Wentland's alleged declaration about not wanting the job but only wanting to retire or just take the "severance package" in either (1) Sears' statements to the EEOC; or (2) Brooks' explanation in her 2005 deposition why she did not hire Wentland. DF 176-177. This alleged basis for her reason - he just wanted to retire - was not raised during her deposition as a basis for her decision even though she claims she knew then that Wentland had raised the issue of "retirement." Id. Second, Brooks has conveniently shed the issue of prior performance as to Wentland because in her depositon, she conceded that Wentland was given the more difficult jobs DF 166- a fact which would obviously influence his productivity numbers and demonstrates his technical competence. Third, Brooks' latest set of reasons are contradicted by other team member testimony. 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. DF 173. Further, Josie Padilla also indicated being uncomfortable with the process, but Garcia did not expect that to preempt Padilla from having a shot at a position in Aurora. DF 178. Further, Garcia actually noted in his notes that Wentland planned on retiring "in a year-and-a-half," exactly when Wentland would turn 55 and actually be eligible for retirement. DF 175; Response to UF 20, 22. Moreover, Perry's notes from Wentland are replete of any reference to this Wentland's alleged jarring proclamation. Response, UF 20 & 22. Further, Perry testified that he actually may have raised the issue of retirement with Wentland, commenting that someone's close retirement plans. in Perry's opinion, would have been an inhibitor to Wentland being successful in the new shop. DF 180. Accordingly,

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because (1) Wentland was not even eligible to take the retirement; (2) Garcia noted his notes that Wentland told him he wanted to retire when he was eligible - in a year-and-a-half; (3) Perry's notes void of any reference to retirement; and (4) Perry admitted he may have raised the issue of retirement with Wentland since Perry considered close retirement plans as an "inhibitor" to being a good candidate for positions at the Aurora Repair Facility, a jury could reasonably find the explanation pretext for illegal age discrimination. DF 175 & 180. 4. Plaintiffs have Demonstrated Weaknesses, Implausibilities, Inconsistencies, Incoherencies, and Contradictions in Brooks' proffered legitimate reasons for her Decision not to Hire Plaintiffs and, thus, a reasonable fact finder could find them unworthy of credence and infer that Brooks did not act for the asserted non-discriminatory reason

Plaintiffs can show pretext by revealing "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action [such] that a reasonable fact finder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reason" Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002). The fact that Brooks' reasons have materially changed over time support a finding of pretext, as the does the fact that her reasons have been contradicted by other Sears redesign members and the Plaintiffs. See e.g. EEOC v. Sears Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001) (summary judgment for employee denied based on fact that employer had offered different justifications at different times for its failure to hire plaintiff); Gordon v. United Airlines, Inc., 246 F.3d 878, 891 (7th Cir. 2001) (reversing summary judgment based in part on conflicting accounts by two supervisors of the events that led to plaintiff's discharge). In undertaking the pretext analysis, Plaintiffs need not show that the employer had a

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discriminatory purpose, but merely that the explanation given by Defendant is unworthy of credence. Doebele v. Sprint/United Mgmt Co., 342 F.3d 1117, 1135-40. As the Supreme Court in Reeves pointed out, "it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." The Court pointed out that "[t]he fact finder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." Reeves quoting from St. Mary's Honor Farm, Id., at 511, 113 S.Ct. 2742. 5 As demonstrated above, Plaintiffs have proffered evidence highlighting the weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in Sears' reasons for their non-selection and thus, summary judgment should be denied.6 Reeves. a. A Reasonable Jury Could Determine That Brooks is not Credible

As noted by the District Court in Greenway v. Int'l Paper Co., 144 F.R.D. 322, 326 (W.D.La.,1992), a "deposition is not a take home exam." The Supreme Court addressed the issue of pretext in great depth in Reeves. Reeves, 530

The Supreme Court in Reeves explained that "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." See id. at 517. Plaintiffs do not need to demonstrate pretext for every reason propounded by Sears, although Plaintiffs contend they have. See, e.g., Tyler v. RE/MAX Mtn. States, Inc., 232 F.3d 808, 814 (10th Cir. 2000) (while, "as a general rule, an employee must proffer evidence that shows each of the employer's justifications are pretextual, ... when the plaintiff casts substantial doubt on many of the employer's multiple reasons, the jury could reasonably find the employer lacks credibility"). 102
6

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U.S. at 147. The Supreme Court held in Reeves that a "rejection of the employer's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." Id. (internal citations omitted). In explaining its holding, the Supreme Court stated: In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the fact-finder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Wright v. West, 505 U.S. 277, 296, 120 L. Ed. 2d 225, 112 S. Ct. 2482 (1992); see also Wilson v. United States, 162 U.S. 613, 620- 621, 40 L. Ed. 1090, 16 S. Ct. 895 (1896); 2 J. Wigmore, Evidence §§ 278(2), p. 133 (J. Chadbourn rev. ed. 1979). Id. at 147 and 148 (emphasis added). A reasonable jury could conclude that Brooks is not credible. · Brook's testimony concerning why chose not to hire the Plaintiffs is conflicts with her own prior sworn statement, conflicts with the testimony of the Plaintiffs, conflicts with the testimony of the redesign team members, is based in part on documents that have been arguably altered and conflicts documents that have been authenticated. See e.g. Response to UF 10,11,26,34,40,47,48. For example, with regard to all of the Plaintiffs, Brooks states in her 2005 affidavit that she only used information about the Plaintiffs' interview performance "conveyed to her by the team" in deciding who to hire. UF10. In that same affidavit, in regard to Green for example, she testified that she considered information she personally gathered outside of any of the interviews as basis for her decision - i.e., her extraneous conversations with Green and Padilla about working on lawnmowers. UF47, 52 and 53. Further, in her depositions, she testified that she also considered Plaintiffs' past work performance, including, specifically, their past production numbers, yet her 2005 affidavit past performance has vanished as a factor. DF 26, 34, 47, 48. Brooks has changed her testimony on material, key facts twice: via her errata sheet to her 2002 deposition, she changed her testimony regarding what department of key co-worker worked in an effort to establish that the OWBPA notices distributed by Sears were in lawful, and now, via her attached 2005 affidavit supporting Green's Motion concerning why Plaintiffs were not selected for open positions. See e.g. Response to UF 10,11,26,34,40,47,48, DF 35-37. Brooks' testimony that the redesign team did follow Sears' written redesign hiring policies conflicts with her other statements in her 2005 affidavit, including the portions of her affidavits cited at UF 10, and are contradicted by every redesign team member deposed. DF 1, 3-27. 103

·

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·

Brooks has a history of changing her deposition testimony in subsequent writings not subject to cross-examination. As noted in the preceding section, many, if not all, of Brooks' professed "assessments" or reasons for not selecting the Plaintiffs have been contradicted by herself and others. This is not the first time Brooks has chosen to provide sworn testimony in subsequent written form that contradicts key facts she conceded in a deposition. As noted in DF 35-38, above, after her deposition in 2002, Brooks (the only individual to be deposed in the first stage of the litigation) made a number of significant and substantive changes to her deposition, via her errata sheet, related to the material issues in Sears' brief supporting its motion for summary judgment under the OWBPA. See Motion to Strike, filed 7/31/02, the Amendment to Deposition attached thereto as Exhibit 1 and corresponding pages to Deposition of Stephanie Brooks attached thereto as Exhibit 2. As noted Plaintiffs' Motion to Strike, the information for her reversed testimony was part of the foundation upon which Sears built its dismissal arguments. Id. Now, Brooks has done it again - reversed herself on material issues of fact - this time, not through an errata sheet, but by submitting a contradictory testimony about material facts through her affidavit filed in support of Sears motion. DF 26, 34, 35, 38, 48.

Apparently recognizing the inherent inconsistencies and contradictions in Brooks' reasons for not selecting the Plaintiffs, Sears argues that it would be inappropriate for the Court to look at the whether Brooks' assessment of the Plaintiffs was "wise, fair or correct," and instead, focus only on whether she honestly believed that her changing reasons were correct. Motion, p. 16. However, determining honest belief from affidavits and depositions is impossible, especially in light of the contractions, and is clearly a fact issue for the jury. While it is true that when reviewing whether an employer's reasons were pretextual, a court is not to "sit as a super-personnel department that second-guesses" an employer's business decisions with the benefit of twenty-twenty hindsight (Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808, 814 (10th Cir.2000), "evidence indicating that an employer misjudged an employee's performance or qualifications is, of course, relevant to the question whether its stated reason is a pretext masking prohibited discrimination." Id. at 814 (internal quotations omitted); Minshall v. McGraw Hill Broad., Co., Inc., 323 F.3d 1273, 1280 (10th Cir. 2003) 104

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(holding that "evidence indicating that an employer misjudged an employee's performance . . . is, of course, relevant to the question of whether [the employer's] stated reason [for its actions] is . . . masking prohibited discrimination") (quoting Tyler, 232 F.3d at 813-14 (10th Cir.2000) (alterations in original). b. Other Problems with Brooks' Affidavit.

Rule 56 (e) of the Federal Rules of Civil Procedure provides that when affidavits are used to support or oppose a summary judgment motion, they "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." These requirements are mandatory. Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831 & n. 4 (1950). Parties are not able to quote from undisclosed documents and/or other witnesses with impunity, such as Brooks has done here. Sears has offered no evidence in the record to support many of the "facts" that Brooks asserts in her attached affidavit (see Response to UF 3, 6, 7, 9,11, 12, 34, 43, 45, 47, 52, 53, 58 and 60), that are conclusory, lack foundation or are Brooks' repetition of hearsay. UF 3, 6, 7, 9,11, 12, 34, 43, 45, 47, 52, 53, 58 and 60 and Brooks' affidavit testimony cited therein. For example, portions of UF 44 and all of UF 45 are based on repetition of hearsay evidence. Such information may not be used to support a Motion for Summary Judgment under Fed. R. Civ. Proc. 56(e). Response to UF 44 & 45. See e.g. Vice v. Conoco, 150 F.3d 1286, 1292-93 (10th Cir. 1998); Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998). Clearly, the statements attributed to Savard by Brooks are offered for the truth of the matter ­ i.e., that Green had told Savard that he was not supportive of the redesign

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process, and thus are inadmissible hearsay, not to be considered for the purpose of summary judgment. Fed.R.Evid. 801, 802; Fed. R. Civ. Proc. 56(e). Accordingly, Plaintiffs request that those corresponding portions of Brooks' testimony be stricken and not considered for the purpose of summary judgment. Finally, Brooks' affidavit appears to be based on the information contained in Exhibit E to Sears' Motion, a compilation performance ratings, interview scores, etc. Brief Exhibit E. To be admissible under Fed.R.Evid. 1006, summaries must be accurate and non-prejudicial. See Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1334 (10th Cir. 1996). A summary should not be admitted if it mischaracterizes or inaccurately reflects the documents it purports to summarize. See State Office Sys., Inc. v. Olivetti Corp., 762 F.2d 843, 846 (10th Cir. 1985). Further, when the proposed exhibit contains evidence not otherwise in the record, it loses its identity as a summary and is not admissible. See Oertle v. U.S., 370 F.2d 719,728 (10th Cir. 1967). A number of documents Brooks needed to compile that summary have been presumably been destroyed by Sears, since are not part of the personnel files it has produced (such as Padilla's, Wentland's, Lang's and Schley's 1999 performance evaluations). Accordingly, Plaintiffs object to Brooks' affidavit to the extent it relies on that Exhibit for corroboration. c. Conclusion

Plaintiffs have presented a genuine issue of fact regarding Brooks' reasons for nonselection of the Plaintiffs and genuine issues of fact regarding Brooks' credibility, generally. The Tenth Circuit requires the trial courts to consider "the whole record" when reviewing summary judgment motions. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1200 (10th Cir. 2000). When "the whole record" is considered, it is clear that jury could easily find

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Brooks' explanations, and Brooks herself, not credible. Because a reasonable jury is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt", it could easily determine that Brooks, through her changing stories and other contradictions, is "dissembling to cover up a discriminatory purpose." Reeves, 147-148 (internal citations omitted). B. Additional Evidence of Pretext Supporting All Three Plaintiffs

Additional evidence of pretext may include, but is not limited to, "the following: `prior treatment of plaintiff; the employer's policy and practice regarding minority employment (including statistical data); disturbing procedural irregularities (e.g., falsifying or manipulating . . . criteria); and the use of subjective criteria.'" Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002) (internal citations omitted). 1. Sears' "Policy And Practice" Regarding Hiring Selections at the Aurora Repair Facility Demonstrates Pretext.

The ADEA prohibits an employer from "discharg[ing] any individual or otherwise discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age . . " 29 U.S.C. §§ 623(a)(1).7 Evidence that the Plaintiffs' lost positions to younger employees is relevant evidence supporting their prima facie claim, as well as pretext.

As noted above, Plaintiffs may establish their prima facie case of discrimination under the McDonnell Douglas framework by showing: 1) Plaintiffs were members of the protected class; 2) Plaintiffs were otherwise qualified for the jobs for which they applied; 3) Plaintiffs were not hired for the job for which they were qualified; and, 4) Sears hired younger workers, some of whom were less qualified for the positions. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Sears does not argue that Plaintiffs have failed to establish their prima facie case, but as noted in DF 63-64, 66, 69, 70-71, 73-86, 145. Plaintiffs have clearly satisfied this test. 107

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Ultimately, however, to prevail, an ADEA plaintiff must prove "that age was a `determining factor' in the employer's challenged decision." Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir.1996) (internal citations omitted). Plaintiffs are not required to demonstrate that age discrimination was the sole reason for the employer's acts, but it must have "`made the difference' in the employer's decision." Id. (internal citations omitted). See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804- 805 (1973) ("Other evidence that may be relevant to any showing of pretext includes . . . petitioner's general policy and practice with respect to [employment of members of the protected class]."). Plaintiffs may make this showing by demonstrating pretext. The most common way to demonstrate pretext is for a plaintiff to show that the defendant did not afford the same treatment to similarly situated persons who were not members of the plaintiff's protected class. Texas Dep't of Cmty. Affairs v Burdine 450 US 248 (1981); McDonnell Douglas, 411 U.S. at 804. In Greene, 98 F.2d at 554, the Tenth Circuit stated that the fact that eight (8) older executives were pushed out of working "virtually en masse" and replaced with younger employees within a one-year period was sufficient to create "a justiciable issue of material fact which must proceed to trial." 98 F.3d at 561. The pattern of discrimination established in Greene is analogous to the pattern of discrimination demonstrated by Sears in this case. In comparing the results of who was hired into each of the technical position Plaintiffs applied for, following pattern emerges: · Green, Stear and Dobbins (all over forty) were not selected for Mechanical Technician positions given to one other inside candidate, Padilla (39) years old and outside candidate Dean (24) years old. DF198-199; UF 58. In fact, the only Thornton mechanical technician under the age of 44 that was not selected for continued employment with Sears during the redesign was Slabodnick (age 39), who Brooks was prohibited from hiring due to his well-documented performance 108

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·

· ·

issues. DF 199. Every employee that had been employed with Breithaupt in the Thornton facility electrical shop was offered some position at the Aurora facility or another position within Sears (DF 200, UF 58), and Sears selected a younger candidate from outside the organization over her and another older employee, Mc Reynolds. Blankenship (38) years old, was hired from the outside to fill the position sought by Breithaupt and another older employee, McReynolds (52) years old. UF 58. Every technician younger than Wentland that worked as a lawn & garden technician in the Denver metro area and whose position was eliminated as part of the redesign and who applied for technician position at the Aurora Repair Facility was hired for a position at the Aurora Repair Facility: George Lang (age 35), Richard Schley (age 42), and Josie Padilla (age 39) (she was still classified as a lawn & garden technician at that time). DF 201; UF 58.

The results of the Brooks' hiring decisions clearly demonstrates a pattern of age discrimination. Young employees hired were similar to Plaintiffs except for their age - i.e., they were similar because they all applied for the same positions plaintiffs applied for - all service technician positions at the Aurora Repair Facility. At pages 18-19, Sears argues that the "mere fact that younger workers were selected over older workers does, not by itself, raise an inference of age discrimination." Brief, p. 18, citing Greyson v. McKenna & Cuneo, 879 F. Supp. 1065, 1068 (D. Colo. 1995). In that case, an employee was terminated as part of a reduction in force. Id. The court held that plaintiff's evidence supported a prima facie case, but viewed alone, failed to establish pretext. Id. Here, Plaintiffs have proffered voluminous evidence of pretext in addition to just the pattern of hiring younger employees, outlined above, distinguishing Greyson. Next, Sears claims that Plaintiffs' comparison information and evidence related to the treatment of their co-workers by the same decision-maker in the same employment action (the redesign interview process) is inadmissible statistical evidence. Brief, p. 19. Contrary to Sears argument, evidence of how employees in one class are treated in comparison to employees in 109

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another class is admissible even if it is not "statistically significant."8 Bell v. EPA, 232 F.3d 546, 554 (7th Cir. 2000); Luna v. City of Denver, 948 F.2d 1144, 1149 (10th Cir. 1991) (evidence that employer's department had no minorities and that plaintiff's tenure was nearly six times that of the selectee was probative of pretext); Green, 98 F.3d at 560 (in a single year, 8 top level executives over 50 were replaced by younger persons).9 Further, Sears makes the factual argument that the results of Sears re-organization do not raise an inference of age discrimination. Brief, p. 20 citing Kirkland v. Safeway, Inc., 1998 WL 439662 (10th Cir. (Wyo.)). The factual assertions relied on by Sears to demonstrate there is no meaningful difference in the hiring rate of younger employees versus older employers is fatally flawed. All it demonstrates is that Sears did not fire all of the older workers. What the

Plaintiffs' comparison evidence and evidence of treatment of their co-workers is not presented only for the same purposes as the actual statistical evidence was used in the authorities cited by Sears. For example, in Baker v. Ogden Servs. Corp., 1996 WL 15490 (10th Cir.(Okla.)), the court dismissed the plaintiff's case because the plaintiff failed to re-apply for a job after the company reorganized its workforce. The plaintiff's only other evidence of discrimination was inadequate statistical evidence. Because Baker failed to apply for a position, there were no similarly situated individuals to compare. However, the Court in Baker noted that in cases where the employer is reducing its workforce, the plaintiff may demonstrate that he was treated less favorably than younger employees and that younger workers were hired instead of those in the protected age group, "by producing evidence, circumstantial or direct, from which a fact-finder might reasonably conclude that the employer intended to discriminate in reaching the decision." Id. at **4. Unlike the Plaintiffs, Baker failed to demonstrate that the position filled by a younger worker was the same position from which he resigned. Id. at ** 4, n.10. Here, Sears concedes that younger employees were placed in positions for which Plaintiffs applied. Motion, UF 19, 26, 29, 31, 34, 37, 39, 47, 50. Other circuit courts agree. See Lilly v. Harris-Teeter, 842 F.2d 1496, 1509 (4th Cir. 1998) (during the year when plaintiff was denied a promotion, the company promoted 104 Whites and only 4 Blacks to store management positions); Bunch v. Bullard, 795 F.2d 384, 395 (5th Cir. 1986) (12 of 15 of White applicants passed the challenged test while only 3 of the 13 Black applicants passed); Hopson v. Daimler- Chrysler, 306 F.3d 427, 434-35 (6th Cir. 2002) (fact that plaintiff applied and was qualified but was repeatedly rejected for promotions was probative of pretext). 110
9

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chart does not show is that Lang, Schley, and Padilla, three young technicians employed by Sears in the Denver metro area who applied and received technician positions and were ware not accounted for in Sears' "analysis" contained in its first and second bullet points, yet all three were hired into technician positions at the Aurora Repair Facility.10 Brief, p. 20. Further, the younger outside technicians hired, Dean and Blankenship, are also not included Sears' statement in its third bullet point - the bullet point in which Sears notes that it allegedly hired two older technicians from outside the company (a fact not supported by any record citation in the bullet point or in the reference UF 60. Id. Because Sears artificially defined the applicant pool as a pool restricted to Thornton technicians, its average age analysis is completely inaccurate. And, while it is true that some older employees were selected for jobs, as referenced in the fourth bullet point, it is equally true that at least six of the older employees who applied (Breithaupt, McReynolds, Green, Stear, Bunton, Wentland) were not hired for the technician positions they applied for, while every eligible younger technician (except Shioshita) was hired. DF 198-202. Further, Sears' reliance on Kirkland is misplaced. In Kirkland, the plaintiff contended that the facts of his termination were like those in Greene. The Court in Kirkland found that the facts were significantly different, because the pattern of discrimination plaintiff alleged were

Sears' grouping is not appropriate for the proposition Sears propounds. For example, Wentland was the only Lawn & Garden Service Technician in Thornton. None of the other Sears employees hired to fill the three (3) open Lawn & Garden Service Technician positions at the new Aurora facility worked in Thornton with Wentland. By grouping Wentland with the ages of other Thornton Technicians who applied, and either were or were not hired, for a comparison of ages, Sears misrepresents, through its inference, that Wentland, as one of the group of 9 not hired, was replaced by another older employee. What Sears conveniently omits through its grouping is that none of Wentland's young replacements who just happened to work outside of Thornton are even represented. 111

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not demonstrated as they were in Greene. Greene involved a situation in which eight older executives were pushed out of working "virtually en masse" and Kirkland involved the separation of eight out of 82 supervisors over many months. Kirkland, at *3 (internal citations omitted). Here, older employ