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

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PLAINTIFFS' SECTION V. Plaintiffs' Experience with the Interview Process 63. As noted by Sears, during April and May 2000, Sears terminated Plaintiffs as part

of its alleged "reorganization" of its repair facilities. Plaintiffs were among the oldest and most experienced Service Technicians employed by Defendant in Colorado. At the time of their terminations, Plaintiffs' respective ages and years of working at Sears were as follows: (1) Plaintiff Green: 59 years old, 37 years of employment; (2) Plaintiff Wentland: 53 years old, 35 years of employment; (3) Plaintiff Breithaupt: 48 years old, 26 years of employment. (Plaintiffs' Motion for Summary Judgment filed in 2002, Ex. E, Declaration of Charles T. Green; Plaintiffs' Motion for Summary Judgment filed in 2002, Ex. F, Declaration of Phillip R. Wentland; Plaintiffs' Motion for Summary Judgment filed in 2002, Ex. G, Declaration of Marilyn Breithaupt.) Declarations are provided again at Plaintiff's Ex. 61 to their Response. 64. Plaintiffs were all employed by Sears as Shop Service Technicians at its Thornton,

Colorado Service Center ("Thornton Facility"). (Ex. 61.) As Shop Service Technicians, Plaintiffs diagnosed and repaired appliances in the "shop", i.e., at the Thornton Facility. (Ex. 61) Shop Technicians are one of two species of Service Technicians, the other being Field Technicians those Service Technicians who repair appliances in customers' homes, as opposed to in the "shop." 65. In 1999/2000, Plaintiffs were told that all repair shops in the Denver metropolitan

area (Ex. 24, Brooks 2002 Depo, 172:16-174:5.) would be consolidated into a centralized repair

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facility in Aurora, Colorado, as well as the lawn & garden shops in Littleton, Lakewood and Aurora. (Ex. 24, Brooks 2002 Depo, 12:11-13:24) Plaintiffs were further informed that they would be required to apply for "their jobs." (Ex.61, Ex. 24, Brooks 2002 Depo, 14:19-24; Ex.7, Garcia Depo, 14:23-24.) Finally, Plaintiffs were told by their managers that all current employees who were not selected for a position at the Aurora Repair Center (including their own or any other available position for which they were qualified) would have their employment terminated as part of Sears' redesign. (Ex. 61.) 66. Each Plaintiff thereafter applied and interviewed for one or more open positions at

the Aurora facility. (Ex. 61.) Green also applied for the additional positions of Artisan and Installer/Helper. (Ex. 4, Green Depo, 65:18-22; Ex. 37, Green Affidavit, para. 2). These positions were quite similar, if not outright the same, as the jobs they were performing satisfactorily in Thornton, but suddenly they were not qualified for these jobs after the positions were transferred to the new Aurora facility. (Ex. 4, Green Depo, 103:15-104:3). See e.g., Ex. 18, Figeuroa Depo, 107:10-16; Exh. 7, Garcia Depo, 54:18-55:4.) 67. In the Spring of 2000, Plaintiffs were advised by Brooks that, notwithstanding

their decades of experience, skills and qualifications, they had not been selected for positions at the Aurora Repair Center. (Ex. 61; Exh. 38 EEOC charges.) 68. Further, the Plaintiffs allege that they were told by Brooks that they were not

getting a position at the Aurora Repair Center because they were "not a good fit." (Ex. 38, Green Charge of Discrimination, para. 1; Ex. 37, Green Affidavit, para. 3; Ex. 15, Wentland Affidavit, para. 5; Ex. 38, Breithaupt Charge of Discrimination, para. 1; Ex. 14, Breithaupt Affidavit, para. 44

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4,7). At least one of the other older employees who was also not selected for a technician position, Curtis McReynolds, was also told that he was not getting a position because he was "not a good fit." (Ex. 49, McReynolds Affidvit.) 69. At the time of his termination in 2000, Plaintiff Green had been employed by Sears

for thirty-seven and a half (37 ½ ) years, he was fifty-nine (59) years old, was earning $18.80 per hour, and was a Level II Service Technician. (Defendant's Answer, ¶16.) Brooks confirmed that she knew that Green could do almost any type of repair, including repair on items other than mechanical items, and that he had been crossed-trained in other areas of repair. (Ex. 2, Brooks 2005 Depo, 71:13-28; Ex. 24, Brooks 2002 Depo, 73:16-21.) Brooks admitted that Green has excellent technical skills and that if she needed something done she gave it to him. (Ex. 2, Brooks 2005 Depo, 70:25-71:6.) 70. At the time of his termination in 2000, Plaintiff Wentland had been employed by

Sears for thirty-five (35) years, he was fifty-three (53) years old, was earning $18.26 per hour, and was a Level III Service Technician. (Defendant's Answer, ¶ 21.) Brooks also testified that

she sent hard items to repair to Wentland, in particular, to work on because of his skill. (Ex. 2, Brooks 2005 Depo, 76:20-78:9). 71. At the time of her termination in 2000, Plaintiff Breithaupt had worked at Sears for

twenty-six (26) years, she was forty-eight (48) years old, was earning $18.83 per hour, and was a Level III Technician. She worked on electronic and mechanical equipment (Ex. 24, Brooks 2002 Depo, 186:22-24; 153:11-13), and had worked on lawn and garden equipment. (Ex. 24, Brooks 2002 Depo, 179:19-181:18.) Brooks admitted that Marilyn Breithaupt was crossed-trained to 45

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work in different areas of repair. (Ex. 24, Brooks 2002 Depo, p. 73:16-21.) 72. Brooks had worked with Plaintiffs for years and had routed their daily work to

them for the two years before the redesign, as she was the routing manager at Thornton. (Ex. 24, Brooks 2002 Depo, 122:24-123:8.) VI. Plaintiff Charles T. Green A. 73. Green's Work Experience with Sears Despite 37 years of loyal service, extensive training from Sears, numerous

accolades and his resourcefulness as an experienced trainer, Green was terminated by Sears in 2000. (Ex. 38, Green Charge of Discrimination, para. 1,2; Ex. 37, Green Affidavit, para. 1). Green received extensive training from Sears on mechanical repair, including traveling out-ofstate for training on sewing machines. (Ex. 37, Green Affidavit, ¶ 2.) Padilla never received "formal" training from Sears on mechanical equipment until after she was hired as a mechanical technician at the Aurora Repair Center. (Ex. 1, Padilla Depo, 41:22-43:13.) 74. During his tenure at Sears, Green was instrumental in training junior technicians

and assisting less-experienced shop technicians with service problems they were unable to solve. (Ex. 38, Green Charge of Discrimination, para. 1; Ex. 37, Green Affidavit, para. 3; Ex. 3, Green Depo, 37:21-42:25; Ex.50, Awards; Ex. 47, Peterson Depo, 52:8-53:3.) Brooks confirmed that she knew that Green had trained employees in the past. (Ex. 2, Brooks 2005 Depo, 70:22-23.) In addition, Green often acted as a liaison between technicians and management regarding safety problems, part problems and hazardous conditions in the shop and building. Sears took note of Green's assistance in dealing with junior technicians by consistently giving Mr. Green reviews 46

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which were at or above expectations, including teamwork and leadership skills. (Ex. 38, Green Charge of Discrimination, para. 1; Ex.30, Green Performance Evaluation, Sears Bates #15751576). 75. On several occasions, Sears had promotions for their employees to improve

performance and sales, and Green often received awards and accolades. (Ex.50, Green awards, Pl's Bates Nos. 169-195.) For example, for a period of time, Sears ran a promotion called the "711 Club." (Ex.37, Green Affidavit, ¶ 3.) To become a member of the club, technicians were expected to complete several calls per day and sell several extended service plans per day. Id. As a reward, technicians received money, namely Susan B. Anthony dollars, on a daily basis and 7-11 jackets if they maintained such a level for several months. Id. Green was very successful in the 711 club. Id. Over time, he received a box full of Susan B. Anthony dollars and at least one jacket during this promotion. Id. In addition, Green was given "Circle of Honor" awards on several occasions, in recognition of exceptional customer service. Id. Several other promotions were in effect at different times of Mr. Green's employment with Sears, and he was often successful in achieving the goals set by these promotions. Id. 76. Peterson started working at Sears in August of 1999 as the manager of the

mechanical shop in Thornton. (Ex. 47, Peterson Depo, 12:19-21, 14:14-25.) Green and Jack Stear (an older employee not offered a position) worked for Peterson at that time, and he felt they both were good technicians and liked working with them. (Ex. 47, Peterson Depo, 30:7-14; 81:10-12.) 77. When Peterson was asked if he could only keep three of the technicians that had 47

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worked in the mechanical shop (Reavis, Padilla, Stear, Kossman and Green), he responded that he would have kept Green, Kossman and, probably, Reavis. (Ex. 47, Peterson Depo, 32:20-33:6.) (Padilla was supervised by Figueroa but was loaned by him to work in the mechanic's shop "on occassion" and thus, spent some time working under Peterson. (Ex. 18, Figueroa Depo, 85:786:7, Ex. 47, Peterson Depo, 33:24-34:3.) 78. Peterson gave Green an undated performance review in 1999 that appears be

drafted on form with a date (lower right-hand corner) of 11/30/99. (Ex. 52, Bates No. 554-559; Ex. 47, Peterson Depo, 36:2­4; 9-12.) In that review, Peterson gave Green a rating of 4 out 5, "Consistently exceeds expectations," for his "leadership skills." In that review, Green was given a 5 ("far exceeds expections: exceptional results"), the highest possible score, for "integrity" and 4's for "diversity, innovation, development" and 3's (consistently meets expectations: solid, valueadded performance") for the remaining categories: building relationships, customer satisfaction, ownership, business competency and teamwork. (Ex. 52, Bates No. 0554-0557.) Overall, Green received a "consistently meets expectation: solid, value-added performance" rating for all reviewed factors combined. (Ex. 52, Bates No. 0554-0557.) 79. Peterson testified that if he had a problem call regarding mechanics, Green would

take care of it for him. If he had a vacuum that needed done right away, Green would help. Peterson would pick Green to help with problems because of his technical abilities. Peterson thought Green was a good technician. (Ex. 47, Peterson Depo, 95:17-96:24.) 80. Generally, Peterson felt Green was friendly and enjoyed talking with him, and he

found Green dependable and knowledgeable in his skills as a mechanical technician. (Ex. 47, 48

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Peterson Depo, 63:10-25.) Further, Peterson remembered Green mentioning to him that Green had visited the Chattanooga site while on vacation. (Ex. 47, Peterson Depo, 74:12-75:5.) Prior to the redesign in Colorado, Green visited that Sears cite on his own initiative, while on vacation, so he could check out how the redesign process was working there. (Ex. 4, Green Depo, 79:580:4. 81. Sometime toward the summer of 1998, Figueroa was also assigned to be the

technical manager for the Mechanical Repair Shop, and he continued to be the Technical Manager for the Lawn and Garden Shop. He managed the Mechanical and Lawn and Garden crews from 1998 until about August of `99, when Sears hired another technical manager, Craig Peterson. Peterson then supervised the Mechanical Repair Shop crew, and Figueroa went back to just supervising the Lawn and Garden Shop. (Ex. 18, Figueroa Depo, 20:4-21:4.) 82. Figueroa supervised Green for part of 1998 and 1999. He stated that Green came

into work daily and did his work. Green knew the many pieces of equipment he was expected to repair on a given day, and he repaired them. Figueroa felt Green was an adequate technician. (Ex.18, Figueroa Depo, 135:3-8, 135:17-21.) 83. Figueroa also considered Green as one of the senior technicians in the mechanical

shop. (Ex. 18, Figueroa Depo, 139:23-140:3.) Further, on the vacuum side of the shop, Figueroa would rank Green as one of the top three technicians, with Stan Kossman and Jack Stear. (Ex. 18, Figueroa Depo, 141:14-19.) 84. Further, when Figeuroa (who always supervised Padilla and, for a period,

supervised Green as well) was asked if he could hire only one person to work on mechanical 49

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appliances, would he choose Green or Padilla, he testified he would have chosen Green over Padilla. Figeuroa stated Padilla was primarily a lawn and garden technician, whereas he only knew of Green's performance on the mechanical side. (Ex. 18, Figueroa Depo, 143:19-144:6.) 85. Brooks also admitted that Green has excellent technical skills and, if she needed

something done, she gave it to him. (Ex. 2, Brooks 2005 Depo, 70:25-71:6.) 86. Padilla admitted that Green trained her and other Helper/Installers on how to

repair vacuum and sewing machines, and that he had better mechanical repair skills when she was hired over him at the Aurora Repair Center. (Ex. 1, Padilla Depo, 14:20-16:10.) B. Green's Application for the Mechanical Technician, Installer/Helper and Artisan Positions at the Aurora Repair Center

87.

Green applied for three distinct positions at the new Aurora Repair Center,

including Mechanical Technician, Installer and Artisan. (Ex. 4, Green Depo, 63:3-9, 64:4-9, 65:18-66:2, 73:23-74:4). As noted above in DF1 Nos. 66, 69, 73-86, he was qualified for all these positions. 88. Despite his years of service and qualifications, Green was not offered any position

at the Aurora Repair Center and was, instead, told by Brooks "You don't fit in with how we want to do things in Aurora." (Ex. 38, Green Charge of Discrimination, para. 1; Ex. 61, Green Affidavit, para. 2; Ex. 4, Green Depo, 232:1-13, 233:8-18.) C. Green's application for the Mechanical Technician position

1

Plaintiffs' Disputed Facts are referred to herein as "DF." 50

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89.

Sears admits that Green had the technical ability to perform his mechanical

technician job adequately. (Ex. 29, Sears' Green Position Statement, pg. 4). However, Sears has continued to assert that the leadership interviewer, Nancy Savard, determined that Green's teamwork skills were "weak" and that he "lacks the enthusiasm [and] team spirit that is needed for a redesigned unit." (Ex. 29, Sears' Green Position Statement, pg. 4). Sears claimed to the EEOC Investigator that it was this reason alone why they did not hire Charlie Green into any position. (Ex. 29, Sears' Green Position Statement, pg. 4.) 90. During Green's interview with Savard, she only asked him a few questions,

including a question regarding how to handle a piece of merchandise that had been in for service three or four times. (Ex. 4, Green Depo, 60:11-19, 137:12-138:12). 91. Savard does not remember ever interviewing Green, and she did not recall a single

word said during that interview, and thus, cannot rebut Green's recollection of her questions or his perceived attitude. (Ex. 6, Savard Depo, 123:17-18; 244:5-6, 80:22-81:1.) 92. Further, during her deposition, Savard stated that she thought that Green was an

African-America gentlemen she interviewed, when in fact he is Caucasian. (Ex. 6, Savard Depo, 24:12-20; 86:7-9; 86:17018; 91:9-11.) 93. In support of its Motion for Summary Judgment, Sears' statements that Green did

poorly in his leadership interview are supported only by Brooks' testimony about what she was told by Savard, his interview sheets, her alleged conversation with him about doing lawn & garden work, and Green's statements in 2005 concerning his impressions of Savard and how the interview went in his own mind. UF 42-43 and Argument, p. 17-18. 51

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94.

Since Savard does not recall anything about Green's interview, Brooks' allegations

about what Savard told her were not substantiated by Savard. (Ex. 6, Savard Depo, 123:17-18; 244:5-6.) 95. Green's interview notes referenced contain negative reference about Green written

by an unknown author. As noted above in response to UF 44, Sears still contends that Savard wrote several derogatory notes about Green's leadership skills on her interview sheets, allegedly reflecting her impressions of Green during the interview. UF 44. 96. However, Savard denied several times in her deposition that the derogatory hand-

written notes on her interview sheet were in fact hers. (Ex. 6, Savard Depo, 84:12-17, 100: 101:15-20; 125:18-23.) 97. Savard interviewed, alone, every candidate assigned to her. (Ex. 6, Savard Depo,

68:3-4, 244:6-8.) Further, she has no knowledge of why anyone would alter her original Green interview sheet, or who may have added those comments to it. (Ex.6, Savard Depo, 244:18-23.) She also had no ideas whose hand-writing were on the question and answer notes sheets attached to her interview notes, as the handwriting was not hers. (Ex. 6, Savard Depo, 242:11-243:20.) 98. Fanning, Brooks' personal friend, was the local Human Resource representative

who maintained the original interview sheets after the interviews were completed. (Ex. 10, Fanning Depo, 30:8-10, 59:1-9.) Brooks conceded she was able to write on the interviews sheets, even though she did not do the interviews. (Ex.2, Brooks 2005 Depo, 199:-200:8.) Accordingly, it is possible that the notes are Brooks' (even though she denies it), since Savard has stated they are not hers. 52

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99.

While Green did receive a score of 2.9 on his leadership interview, Savard, the

individual Sears continues to claim recommended Green for non-hire, testified that she could not determine from his score whether she recommended him for hire, since the actual score had no meaning without comparison to the score of the other applicants. (Ex. 6, Savard Depo, 86:1018.) Accordingly, she testified that it was possible that she did recommend him for hire with his score of 2.9. (Ex. 6, Savard Depo, 97:14-20.) 100. Sears has put forth no evidence that the alleged concerns, feelings, impressions and

recollections Green provided in regard to his leadership deposition were either known to Savard or Brooks before his 2005 deposition. Further, while Savard does not recall even interviewing Green, she testified that she had never had a situation where an candidate appeared "frustrated" with her, rebutting Sears' insinuation that she picked-up on the frustration Green felt during her interview. (Ex. 6, Savard Depo, 99:19-23.) 101. Moreover, the type of alleged feelings, concerns and impressions Green had were

related to whether the redesigned repair process may not work were not uncommon. (Ex. 6, Savard Depo, 116:20-117:5, 133:7-9, 167:4-168:1.) In fact, redesign team member Perry stated that he knew there were people who had opinions about the process (Ex. 3, Perry Depo, 35:5-6), but he did not feel it was relevant to inquire as to why they held those opinions. He did not care and did not think it made a difference in the long run and did not hold such feelings against candidates. (Ex. 3, PerryDepo, 35:9-15.) Savard confirmed that several people raised their concerns to her, and that their concerns had only a slight amount of impact with her. (Ex. 6, Savard Depo, 99:24-100:9; 116:20-117:5, 133:7-9, 167:4-168:1.) 53

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102.

Perry also did not mind people challenging something, he did not mind if they

disagreed as to whether the redesign process was necessarily the right way to go, and he did not mind if they disagreed that the whole team idea might not work. (Ex. 3, Perry Depo, 35:16-17, 35:21-36:2.) 103. The reasons given by Brooks in her affidavit supporting Sears' instant Motion for

failing to hire Green are different from the reason previously provided by Sears to the EEOC Investigator and the reasons she gave during her deposition in 2005. In her 2005 affidavit, Brooks claims it was because of the results of Green's "leadership interview, the report on that interview during the conference call, and Mr. Green's separate comments to Ms. Brooks" that Brooks based her belief that he was not a good candidate. However, in their Positions Statement, Sears first said "Mr. Green's teamwork skills were "weak" and that he "lacks the enthusiasm [and] team spirit that is needed for a redesigned unit." (Ex. 29, Sears' Green Position Statement, pg. 4). 104. During her 2005 deposition, Brooks stated that, in addition to interview

information, she also considered past performance of all of the candidates and specifically reviewed past performance evaluation rankings, as a way of considering their manager's opinion of them, as part of her decision making process. (Ex. 2, Brooks 2005 Depo, 91: 4-92:10, 147:1022, 213:3-19.) 105. In his 1999 performance review, Green received a rating of 4 out of

5, "Consistently exceeds expectations," for his "leadership skills." In that review, Green was given a 5 ("far exceeds expections: exceptional results"), the highest possible score, for "integrity" and 4's for "diversity, innovation, development" and 3's (consistently meets expectations: solid, 54

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value-added performance") for the remaining categories: building relationships, customer satisfaction, ownership, business competency and teamwork. (Ex. 52, Bates No. 0554-0557.) And, overall, Green received a "consistently meets expectation: solid, value-added performance" rating for all reviewed factors combined. (Ex. 52, Bates No. 0554-0557.) 106. Josie Padilla, the younger employee hired into the Mechanical Technician position

instead of Green, was 39 years old when she was hired by Brooks to work at the Aurora Repair Center. (UF 50.) 107. Brooks conceded that she hired Padilla for a Mechanic Technician position even

though it appeared that Padilla had not even applied for a Mechanical Service Technician, but rather, that Padilla had applied only for the Lawn & Garden Service Technician position. (Ex. 2, Brooks 2005 Depo, 82:14-83:22.) So, Green was not hired, while a younger employee who, as far as Brooks can recall, had not even expressed interest to Brooks in the position Green sought, was hired for that position. 108. In addition, Brooks claims in her 2005 deposition that she looked to employee's

performance outside of their interviews to decide whom to hire. However, Padilla's last performance review has never been produced by Sears, although they have produced her personnel file, and it is presumed destroyed. Other documentation showing that Padilla's overall score for her last performance review was 3. Green's performance review was produced by Sears, and it shows that he received a score of 4 in the leadership category and a 3 overall. (Ex. 21, Bates No. 05251; Ex. 25 Bates Nos. 05252; Ex. 52, Bates Nos. 0554-0557.) 109. Further, Brooks' 2005 affidavit testimony that she did not hire Green in part

because he commented to her that he had concerns about the redesign process is also contradicted

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by her previous deposition testimony that she thought some of the concerns Green raised to her about the redesign process were "legitimate" and that she knew he had been involved in the same type of assembly-line process that had not worked out in Thornton. (Ex. 2, Brooks 2005 Depo, 61:25-13.) Brooks also admitted that she does not know if Green realized that his alleged comments about the process would be counted as an "interview" or be a factor in determining whether he should be hired. (Ex. 2, Brooks 2005 Depo, 69:4-19.) Padilla indicated being

uncomfortable about the redesign process in her interview, but Garcia did not expect that to preempt Padilla from having a shot at a position in Aurora. (Ex.7, Garcia Depo, 85:7-20.) 110. When asked about Green's ability to work on items outside of the mechanical area

(such as lawn & garden or electrical), Brooks confirmed that she knew that Green could do almost anything. (Ex. 2, Brooks 2005 Depo, 71:13-28.) Brooks stated in her deposition that she was never told that one set of criteria was weighted differently than other criteria considered by the interviewers and that one would have to ask the interview team members to discover how criteria were weighted, if at all. (Ex. 2, Brooks 2005 Depo, 216:18-217:12.) Yet, now she claims she hired Padilla over Green because Padilla did better in two of the nine criteria areas given equal weight on the actual interview form. (Ex. 33, Bates No. 04185.) Accordingly, she gave Padilla's performance in those two criteria areas, "Change in Leadership" and "Team Skills" more weight than the other criteria areas. (Ex.34, Bates No. 04186.) Green performed far better in his technical interview than Padilla - 4.0 (Ex. 28, Bates No. 0539), versus 3.2 (Ex. 53, Bates No. 04186). Moreover, Green and Padilla may have had the same score in the "leadership interview" (2.9) depending on which circled scores are counted. . (Ex. 27, Bates Nos. 01584 and Ex. 34, Bates Nos. 04185.)

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111.

Padilla's interview score sheet states that Steve Courier, the redesign team member

that conducted Padilla's leadership interview, noted that Padilla stated among other things that she was "not especially excited but a bit apprehensive." (Ex. 35, Interview Scoring Sheet, Bates No. 0485.) Further, per Courier's notes, Padilla also told him about how, when she worked with co-workers, she "feels working around men harder, hurts teamwork, shrugs it off. People think she would be a `bitch' (her words)." (Ex. 36, Bates No. 04189.) 112. Further, Bob Garcia, the team member that conducted Padilla's technical

interview, chose to specifically not recommend her for hire after her interview, and, instead of marking the option of "offer job as technician," marked the option of "hold pending additional interviews." (Ex. 34, Interview Scoring Sheet, Bates No. 4186.) Further, he also noted in the attached question and answer section that "Josie (Padilla) is skeptical on whether process will work." (Ex.53, Bates No. 04186.) 113. Finally, the only "evidence" to support Sears' (and specifically Brooks') claim that

Brooks "believed that Padilla was more willing to work on lawn mowers than Mr. Green," is Brooks' sworn affidavit statement. (UF 53.) No written documents, no notes of conversations, and no indications of conversations about this topic on the interview sheets was attached in support this allegation. 114. Sears claims that Green did not like working on lawn mowers (citing an opinion he

gave years after his termination, in his deposition), but offers no particular details to support Brooks' general statement that Green told her that he did not like to work on lawn mowers. (UF 53.) Further, during her deposition, Brooks did not mention the alleged extraneous conversations at all, much less as a factor considered in deciding to hire or not hire Green and Padilla - but

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rather, stated only that she and the redesign team looked at Padilla's interview performance, work performance and prior mechanical experience. (Ex. 2, Brooks 2005 Depo, 81:9-17, 83:5-22.) Green denies making this statement. (Ex. 37, Green Affidavit, ¶ 1.; Ex. 11, Bates No. 0232-233) 115. Further, Brooks offered no explanation in her 2005 affidavit to explain why she

hired 24-year-old Kris Dean over Green. 116. Garcia, who conducted Green's technical interview, did not recall much of

his interview with Green (Ex. 7, Garcia Depo, 47:8-9), but was confident that the negative comments about Green's lack of leadership qualities written at the bottom of his interview sheet were, again, not his, and he did not know whose they were. (Ex. 28, Green Interview Assessment Form, Bates No. 0539, Ex. 7, Garcia Depo, 47:24-48:3.) The positive statements about Green's attitude, enthusiasm, and technical aptitude were his, and, while Garcia did not recall asking Green when he planned to retire, he testified that they must have discussed it since he made a notation about it in his interview notes. (Ex. 7, Garcia Depo, 47:24-48:3, 49:3-9; 51:9-13.) (Ex, 54 Bates No. 1582). Savard also denied writing any negative notes about Green on Garcia's interview sheet-so the notes remain unidentified. (Ex. 6, Savard Depo, 241:13-18) 117. Garcia was surprised Green did not receive a position at the Aurora Repair Center.

(Ex. 7, Garcia Depo, 53:8-10.) Garcia did not have any idea why Green was not offered an installer or helper job. He did not have reason to believe Green was not qualified for those jobs. He also did not have a reason as to why Green was not offered a field technician job, or to believe Green was not qualified for one. (Ex. 7, Garcia Depo, 54:18-55:4.) 118. 119. Garcia thought Green had strong electrical abilities. (Ex. 7, Garcia Depo, 65:7-9.) Garcia felt Green was willing to adapt to change. (Ex.7, Garcia Depo, 68:20-24.)

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120.

Garcia also interviewed Padilla. His notes indicate that he had concerns about

Padilla's diagnostic skills. (Ex. 7, Garcia Depo, 59:2-9, 20-22.) Garcia noted in Bates No 04196 (Padilla's Interview notes with Garcia), "Josie is skeptical on whether the process will work." (Ex. 7, Garcia Depo, 60:10-13), that Padilla was not as confident with electrical (Ex. 7, Garcia Depo, 60:21), and that "Josie's diagnostic skills are adequate but need refining." (Ex. 7, Garcia Depo, 62:5-7.) 121. Garcia said he would have been surprised if Padilla got one of the mechanical

department positions and Green did not. (Ex. 7, Garcia Depo, 63:4-7.) Garcia would have been surprised if Padilla received a mechanical position in lawn and garden over Green because Green seemed to be a lot more knowledgable in mechanical. (Ex. 7, Garcia Depo, 63:17-64:2.) 122. Garcia had a short technical interview with Green and found him technically

qualified for a position in Aurora, and he did not have any reason to believe that the leadership skills necessary for the Aurora Repair Center were different than both had been required to use in the past. (Ex. 7, Garcia Depo, 79:8-17.) 123. Garcia found out who had not been selected by going to the actual centers where

some of the individuals worked and talking to them. (Ex. 7, Garcia Depo, 83:4-8.) 124. No one told Garcia that the Aurora Repair Center was going to operate differently

than Thornton. (Ex. 7, Garcia Depo, 98:1-12.) D. 125. Green's application for the Installer/Helper and Artisan Position Green also applied for the positions of Installer/Helper and Artisan. Green applied

for these additional positions, including the demoted position of Installer/Helper, because he wanted to stay employed with Sears, to keep Sears' health coverage for his adult disabled child.

59

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(Ex. 4, Green Depo, 123:12-24.) 126. The duties of the Installer/Helper basically included repairing appliances at the

direction of a technician, duties Green was clearly qualified to perform, and the duties of the Artisan position included diagnosing and repairing miscellaneous mechanical equipment, including sewing machines, again duties Green had been doing and was qualified to continue doing. (Ex. 11, Bates Nos. 0237, 0238 & 0241.) 127. Sears did not even identify the actual pay rate for either the Installer/Helper or

Artisan position in support of its Motion. (UF 40.) 128. Sears did not identify which job Randy Shioshita allegedly applied for, and was

denied placement in because of this rule, much less what that job paid. (UF 11.) Brooks previously testified that Shioshita had transferred to a sales position. (Ex.2, Brooks 2005 Depo, 101:6-9.) Brooks conceded that she did not know what the sales jobs paid that were available for rejected technicians to take as part of the redesign, and that the sales jobs may have paid an amount greater than ten percent of technicians' salaries, depending on the sales departments. (Ex. 2, Brooks 2005 Depo, 144:12-145:14.) Breithaupt stated that the sales position mentioned to her by Brooks as a possible alternative position paid either $12.50/hour or $3/hour plus commission, greater than a ten percent cut of her technician pay of $18/hour. (Ex.12, Breithaupt Depo, 241:9243:2; 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.) 129. Sears has not provided anything but Brooks' testimony that these two positions

would have paid more than ten percent less than Green was earning, the rate of pay for the Artisan position was exactly the same as the rate of pay for the Mechanical Service Technician 60

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position Green also applied for (but Sears claims he did not receive because of his leadership skills, not the pay range). (Ex. 11, Bates No. 0228.) 130. Brooks' assertion that Sears had a "ten percent rule" was uniformly denied by

every other manager and redesign team member deposed, including the Head of the Redesign Team, Dan Perry; Redesign Team Member, Nancy Savard; Redesign Team Member, Bob Garcia; Redesign Team Member, Ron Medford; and Redesign Team Member, Chuck Nash. (Ex. 6, Savard Depo, 76:18-77:2, 156:19-157:4; Ex. 3, Perry Depo, 98:24-99:5; Ex.7, Garcia Depo, 85:25-86:5; Ex. 8, Medford Depo, 48:23-49:11; 49:18-50:1; Ex. 9, Nash Depo, 56:9-57:4.) Garcia's understanding was that if an individual indicated they were willing to take an installer or helper position, and they were qualified, then they could then have that position. (Ex. 7, Garcia Depo, 86:10-15.) 131. Further, while Brooks and Fanning both testified under oath that they thought this

policy was in writing and was part of the E&M Factory Communication Guide, Brooks now concedes there is, after all, nothing in that extensive document indicating that this "ten percent rule" ever existed. (Ex. 2, Brooks 2005 Depo, 166:20-176:20; 164:3-17; Ex. 10, Fanning Depo, 137:8-14, 87:15-23, 138:17-19, 84:23-25, 85:19-22; Ex. 11, E&M Factory Communication Guide.) Ex. 10, Fanning Depo, 137:8-14, 87:15-23, 138:17-19, 84:23-25, 85:19-22. All other redesign members questioned about this policy denied that it existed. (Response to 48, incorporated herein.) 132. The only factual support provided by Sears for the proposition that the "ten

percent rule" existed is the testimony of two employees - Brooks and her friend Fanning - two individuals that had nothing to do with designing or drafting the policies to be used during the 61

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reorganization. (UF 40; Ex. 10, Fanning Depo, 84:23-25; 188:19-20.) Fanning conceded that, although she was the local Human Resource Generalist, and she was one of the interviewers for the internal candidates, she had no input into the decision of who was to be hired and really merely "took notes" during the conference call discussing the candidates. (Ex. 10, Fanning Depo, 40:4-12; 53:1-2.) All other redesign members questioned about this policy denied that it existed. Response to 48, incorporated herein. 133. Finally, when asked in her deposition if Green was ever told that he was not

eligible for an installer position because of the salary cut issue, Brooks stated that she could not remember exactly, but she thought he would have been eligible, in contradiction to her other sworn statements that he would not have eligible. (Ex. 2, Brooks 2005 Depo, 181:1-9.) E. 134. Green's termination Despite his experience and years of service with Sears, Brooks told Green, while

terminating him, "You won't fit in with how we want to do things in Aurora." (Ex. 4, Green Depo, 232:1-13, 233:8-18). 135. Green had not wanted to retire from Sears, but had wanted to remain employed so

he could provide health care coverage to his disabled son. (Ex. 4, Green Depo, 123:15-24). However, having no option to remain employed by Sears, he submitted his paperwork to receive early retirement. (Ex. 4, Green Depo, 243:10-15). F. 136. Sears Did Not Offer Green An Outside Sales Position Brooks concedes she never offered Green the position of Field Repair Technician.

(DF 48.) Sears has presented no evidence to rebut his statement that he would have taken it if offered to him. (Ex.4, Green Depo, 167:17-168:1, 273:10-274:6). Further, it was a position he 62

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was qualified for as he had previously worked in that position for 22 years. (Ex. 4, Green Depo, 12:12-22, 28:22-29/7, 34:1-3.) 137. While Sears now claims that Brooks, Fanning and Mufic had a good faith belief

that Green was physically unable to do that job, and hence, insinuate that that is the reason why it was not offered to him (UF 48), Sears' prior statements to the EEOC Investigator about Green and his fellow older employees' terminations are silent of this "belief" concerning Green, but explicit about "believing" that three of the other older workers had medical reasons that excused them from taking available field technician positions. (Ex. 19, Sears' Wentland Position Statement, pg. 4; Ex. 22, Sears' Breithaupt Position Statement, pg. 4; Ex. 32, Sears' Stear Position Statement, p. 5). Specifically, while Sears utilized its knowledge of medical conditions of other employees as justification for not placing those employees in Field Service Technician position, Sears never contended to the EEOC Investigator that Green had (1) been offered that position; (2) that he declined that position for medical reasons; or even (3) the position was not offered to him because in the past Sears thought he was medically unable to do it. Id. 138. Also, as noted above in response to DF 48, Brooks, Fanning and Mufic, the three

allegedly "responsible for hiring" Field Technicians, all gave contradictory testimony concerning their collective "belief" that Green that unable to work in the field as a Site Technician. For example, Brooks testified that Fanning and Frank offered Green the field position. (Ex. 2, Brooks 2005 Depo, 67:8-15.) Brooks also confirmed that Green was required to secure a

doctor's note indicating he could not work in the field to get the severance package. (Ex.2, Brooks 2005 Depo, 67:16-25; 68: 4-8.) Fanning testified that a note was required, as well, for Green to be eligible for the severance package. (Ex. 10, Fanning Depo, 59:2-9.) Fanning also 63

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testified that she actually saw a doctor's note excusing Green from the position, and that some document excusing Green from the position existed. (Ex. 10, Fanning Depo, 59:18-60:4, 64:2265:1, 63:5-9.) 139. Green never provided a doctor's note. (Ex. 4, Green Depo, 166:23-167:1;

168:16-22.) Nor did he request one from his doctor. (Ex. 4, Green Depo, 168:16-22.) He wanted the job and was able to work in that position. (Ex. 4, Green Depo, 167:17-19; 170:13171:2.) 140. Sears concedes it received doctor's notes from Breithaupt and Wentland from the

Site Technician. (Ex. 19, Sears' Wentland Position Statement, pg. 4; Ex. 22, Sears' Breithaupt Position Statement, pg. 4.) In accord, Wentland and Breithaupt testified that when they told Brooks that they had a medical condition prohibiting them from taking the Field Technician positions offered to them, they were both told that their statements were not enough and that they had to produce a note from their doctor justifying the reason they were declining the offer if they wanted to receive the severance. (Ex. 5, Wentland Depo, 122:6-123:17, 126:9-20; Ex.12, Breithaupt Depo, 158:15-18; 160:14-161:2.) 141. When Green asked about getting a Field Technician position, Fanning told him that

he didn't need to worry about it, that Sears was going to retire him and give him the package. (Ex. 4, Green Depo, 165:11-19.) 142. Sears also asserts in its UF 48 that "Medical problems had previously prevented

Mr. Green from working in the field," citing Green's testimony and medical records related to a back injury he suffered almost 15 years before it chose not offer him a field condition. (Ex. 4, Green Depo, 34:1-34:21.) Specifically, in approximately 1984, after working in the field as a 64

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technician for approximately 22 years, Green asked if he could work in the shop for six to eight months to heal his back. However, when he was physically able to work in the field again, he asked to return to his position as a Field Technician. 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. 143. During the interview process for positions at the Aurora Repair Center, no one

talked to Peterson about his shop technicians work performance. (Ex. 47, Peterson Depo, 75:1519.) As their supervisor, Peterson thought this was odd that they did not get his input. He had only been there a short time, but if he had been their supervisor for a long period of time, he thought he should have been consulted during the interview process. (Ex. 47, Peterson Depo, 76:19-24; 76:25-77:21; 78:1-9.) 144. Brooks also never spoke with supervisor Figueroa about his opinion of his

employees' performance before she made her decision. (Ex. 18, Figueroa Depo, 149:22-25.) In fact, no one associated with the hiring at Aurora Repair Center, including Brooks, ever spoke with Figuera about his employees' work performance. (Ex. 18, Figueroa Depo, 150:23-152:9.) VII. Plaintiff Marilyn Breithaupt A. 145. Breithaupt's Work History Breithaupt was forty-eight (48) years old and had been employed by Sears for

twenty-six (26) years when the redesign occurred in 2000. (Ex. 38, Breithaupt Charge of Discrimination, para. 1.) During her numerous years of dedicated service for Sears, Breithaupt received numerous accolades for her performance and was extremely knowledgeable in the repair of numerous machines. (Ex. 38, Breithaupt Charge of Discrimination, para. 2;Ex. 55, Breithaupt 65

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Awards). These awards include recognition as part of the "Number 1 Service Team" in March 1987, Certificates of Achievement in 1987 and 1988, and Service Excellence Awards in August and September of 1991 and February of 1992. (Ex. 55, Breithaupt Awards). In addition, Breithaupt has numerous certificates showing completion of several courses in repair of different machines. (Ex. 55, Breithaupt Awards). B. Breithaupt Application for the Electronic Technician Position. 146. Breithaupt applied for an Electronics Technician position at the Aurora Repair

Center. (Ex. 38, Breithaupt Charge of Discrimination, para. 1). 147. Sears first told the EEOC investigator investigating Breithaupt's charge of

discrimination 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." (Ex. 22, Sears' Breithaupt Position Statement, pg. 4). Sears' position then 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. (Ex. 22, Sears' Breithaupt Position Statement, pg. 4). 148. When Sears interviewed Breithaupt for the position at the Aurora Repair Center,

they did not perform a "technical interview," such as they would lead one to believe. In reality, they asked her two questions, neither of which were a representation of Breithaupt's technical ability. (Ex. 12, Breithaupt Depo, 106:12-107:14, 109:25-110:2.) She was first asked how to replace a picture tube in a television. (Ex. 12, Breithaupt Depo, 106:18-21.) Breithaupt replied, based upon the techniques and equipment she had in her current position at Sears. (Ex. 12, 66

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Breithaupt Depo, 106:18-25.) When asked about another technique, Breithaupt admitted that she had some experience with the alternate technique, but it was her experience that the first technique she described actually worked better and was faster. (Ex. 12, Breithaupt Depo, 107:1109:17.) (A fact yet to be disputed by Sears.) The second question asked Breithaupt to view two diagrams and respond as to the voltage in each diagram at a certain point. (Ex. 12, Breithaupt Depo, 110:7-110:13.) Breithaupt initially reversed her answers, but immediately corrected her response, thereby ultimately giving the correct response. (Ex. 12, Breithaupt Depo, 110:14-25, 115:7-14.) Those two questions were the extent of Sears' "technical interview" that supposedly decided the fate of Breithaupt's 26-year career with Sears. Garcia testified that his only role in the redesign process was to evaluate electrical skills (Ex. 7, Garcia Depo, 32:23-33:3), yet Breithaupt's technical interview was conducted by Currier. (Ex. 56, Sears' Bates No. 953; Ex. 12, Breithaupt Depo, 103:10-12.) 149. Perry stated that all long-term technicians were presumed technically sound and,

thus, the technical interviews for long-term technicians were almost perfunctory. (Ex. 3, Perry Depo, 38:15-39:5.) 150. When Breithaupt was not offered any of the Electronics Technician positions (Ex.

38, Breithaupt Charge of Discrimination, para. 1), the only explanation given to Breithaupt by Brooks for not receiving her prior position or a comparable position was that she "would not fit in" at the Aurora Repair Center. (Ex. 38, Breithaupt Charge of Discrimination, para. 1;Ex. 12, Breithaupt Depo, 126:14-21.) 151. Instead, she was offered a position that Sears management knew she could not do

-- a position as a Field Technician that would be too much stress on her bad knee. (Ex. 38, 67

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Breithaupt Charge of Discrimination, para. 1; Ex. 14, Breithaupt Affidavit, para. 1,2; Ex. 12, Breithaupt Depo, 130:11-21; Ex. 2, Brooks 2005 Depo, 130:13-21.) Breithaupt has arthritis and calcium deposits on her left knee. (Ex. 14, Breithaupt Affidavit, para. 1,2; Ex.12, Breithaupt Depo, 130:11-21, 132:21-25.) She has had prior surgery on the knee and, in addition to prescription anti-inflammatory medication, Breithaupt receives cortisone shots. (Ex. 14, Breithaupt Affidavit, para. 1,2.) Sears was well aware of her knee problems when it offered her the outside technician position. (Ex.38, Breithaupt Charge of Discrimination, para. 2; Ex. 14, Breithaupt Affidavit, para. 3.) Nonetheless, she was required to supply Sears with a note from her doctor explaining why she could not physically accept the outside technician position. (Ex. 12, Breithaupt Depo, 158:7-23.) (Ex. 10, Fanning Depo, 70:17-21; Ex. 31, Mufic Depo, 105:2025.) 152. In her 2005 deposition, Brooks first testified 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 and because Brooks had "better candidates to fill the position." (Ex. 2, Brooks 2005 Depo, 109:24-110:17, 111:17-112:2.) She then later added that Breithaupt's alleged low production numbers were another reason she chose not to hire Breithaupt and that she 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. (Ex. 2, Brooks 2005 Depo, 114:19-115:15.) Again, in her 2005 affidavit, Brooks makes no mention of Breithaupt's past performance in her current explanation of why Breithaupt was not hired. (UF 34.) 153. Sears advertised outside of its organization for technicians contemporaneously 68

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with notifying its own employees about the redesign. (Ex. 6, Savard Depo, 198-200.) It was Sears' practice to interview outside candidates contemporaneously with inside candidates during this type of reorganization. (Ex. 6, Savard Depo, 199:20-200:4; Ex. 9, Nash Depo, 47:18-23.) Accordingly, inside candidates, such as Breithaupt, were competing with outside candidates for the same Service Technician positions. 154. As noted above, Breithaupt had been employed by Sears for 26 years, was trained

and certified by Sears to work on electrical appliances and had received many accolades, awards and positive performance reviews. (Exh. 38, Breithaupt Charge of Discrimination;Ex. 55, Breithaupt Awards.) Despite her experience as loyal, long-term, employee, Brooks hired Blakenship for the television repair Electronic Technician position, presumably the "better candidate" to fill the position. (UF 37; Ex. 23, Bates No. 03180.) 155. Blankenship was not employed by Sears when he was hired, and he scored in the

lowest possible rankingcategory on his technical exam when he applied for the same Electronic Service Technician position Breithaupt was applying for. (Ex. 23, Blankenship Scoring Sheet, Sears Bates No. 03180 (emphasis in the original).) As outlined below, he scored in the "POOR RISK" category for television repair, the function he would performing in Aurora. (Ex. 23, Blankenship Scoring Sheet, Sears Bates No. 03180.) Yet, he was offered the television repair position over Breithaupt. (Ex. 2, Brooks 2005 Depo, 116:19-117:3.) 156. 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. 69

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23, Bates No. 03180.) 157. When shown Blankenship's poor television repair test score, 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, to Brooks' recollection, that he had done poorly on technical and team skills. (Ex. 2, Brooks 2005 Depo, 129:16-131:10; Ex. 23, Bates No. 03180.) But when confronted with her own notes from interviewing him for leadership skills, she conceded that she hired him and conceded that even she rated him as only "marginal" on "initiative/sense of urgency" and "interests/expectations," (Ex. 2, Brooks 2005 Depo, 131:15-23.) 158. Then, at a later point in her 2005 deposition, Brooks contradicted her testimony

above that Breithaupt was not offered a position because Brooks had "better candidates" than her, by answering when asked if she believed that Blankenship was a better electronics technician then Breithaupt, "I didn't compare the two." (Ex. 2, Brooks 2005 Depo, 136:20-25.) 159. Brooks concedes that Breithaupt was then offered the position of Field Technician

(UF 35), which required "similar" technical repair skills as the electronic technician position she was denied at the Aurora Repair Center because of her lack of the same skill set. (Ex. 2, Brooks 2005 Depo, 157:1-11.) VIII. Plaintiff Phillip R. Wentland A. 160. Wentland's Work History Plaintiff Wentland was fifty-three (53) years old and had worked for Sears for

thirty-five (35) years when he was terminated on May 5, 2000. (Ex. 38, Wentland Charge of Discrimination, para. 1.) 70

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161.

Figueroa was Wentland's supervisor on February 1, 1998. He gave him a

performance evaluation around February 1998. (Ex. 18, Figueroa Depo, 56:22-57:19.) 162. Sears has not produced Wentland's last documented performance review (the

1998 review or the 1999 ), but it appears form a printed computer screen page produced by Sears that Wentland's score on last documented performance review given by his supervisor, Figueroa, was a 4.4, described as "Consistently Exceeds Expectations." (Ex. 13, Computer Screen printout, Sears Bates No. 01011; Ex. 18, Figueroa Depo, 56:18-58:16.) In review of what appears to be the only documents reflecting the last performance ratings given to Wentland, Lang and Schley, Wentland received the highest score out of them all, with a 4.4 rating on a scale of 1-5. (Ex. 18, Figueroa Depo, 64:18-25.) Figueroa stated that he ranked Wentland as the best at the time of Wentland's 1998 performance evaluation. (Ex. 18, Figueroa Depo, 86:17-87:8.) Figueroa said his top three Lawn & Garden Shop Technicians in 2000 were Wentland, John Trujillo and George Lang. (Ex. 18, Figueroa Depo, 96:12-14.) 163. Figueroa's impression of Wentland as an employee was that he was a good

technician who in general worked well and was able to repair the items needed to be repaired. He liked him and socialized with him outside of work. He would have called him a friend between 1997 and 2000. Figueroa has the opportunity to observe and evaluate Wentland's work performance and thought he was a good technician. Wentland was quite familiar with just about everything that would come into the Lawn and Garden Shop for repair. He put in his time and did what he was supposed to do during that period of time. (Ex. 18, Figueroa Depo, 39:24-41:7.) 164. Figueroa considered Wentland the senior Lawn & Garden Technician. As the

senior person, Figueroa looked to Wentland to keep everything running smoothly since Figueroa 71

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could not be there all the time. When Figueroa had a question about a particular operation or Sears process, since Wentland had been around so long, Figueroa would ask him, and Wentland would generally have an answer for him. (Ex. 18, Figueroa Depo, 42:3-25.) 165. Further, Figueroa found Wentland enthusiastic and a good team player. (Ex. 18,

Figueroa Depo, 44: 20-45:8.) Wentland was looked to as a source for the more difficult jobs and he handled this responsibility as it came to him. (Ex. 18, Figueroa Depo, 50:21-51:9.) Figueroa would ask questions regarding repair and routines of repair since the job was new to him. He found Wentland helpful and a good communicator. (Ex. 18, Figueroa Depo, 44:20-45:3.) 166. Garcia knew Wentland often received the difficult items and had a very good

reputation as far as his ability to fix them. (Ex. 7, Garcia Depo, 28:18-21, 22:2-5.) Brooks admitted she knew Wentland received the more difficult repair jobs, a fact that would have interfered with or lowered his production numbers. (Ex. 2, Brooks 2005 Depo, 76:20-77:23.) Based on the scores given, Garcia thought Wentland was technically competent to work at the Aurora Service Center. (Ex.7, Garcia Depo, 70:2-5.) 167. It was fairly obvious to Figeuroa that Wentland was the senior technician. Others

were a lot less experienced and gravitated toward Wentland as the senior technician. (Ex.18, Figueroa Depo, 136:22-137:7.) 168. Helpers and installers were employed by Sears under Figeuroa's Lawn & Garden

Shop to work underneath shop technicians. Helpers and installers did not have the expertise of shop technicians. Sears would hire helpers and installers from Labor Ready on a seasonal basis to assist with repairs with lawn mowers, for example. (Ex. 18, Figueroa Depo, 45:10-25.) 169. Wentland worked full-time at Thornton, was the senior technician and engaged in 72

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supervision of the Labor Ready individuals on a regular basis. (Ex. 18, Figueroa Depo, 66:6-25.) Figueroa said, on a practical level, Wentland supervised the installers and helpers that were there for a season. (Ex.18, Figueroa Depo, 71:6-9.) 170. Wentland would provide training to the helpers and installers regarding their

duties. As the technician, Wentland would diagnose and repair, and the installer would install parts to complete the repair. For example, if it was determined that a lawn mower needed a blade and spark plugs, the technician would diagnose the problem and determine what was needed, and the installer would put in the spark plug in and put on the blade. The technician would diagnose if a part was needed and tell the installer to get the parts and put them on the machine. (Ex. 18, Figueroa Depo, 71:24-72:9.) Figueroa had the opportunity to review Wentland supervising installers and found his performance adequate and felt Wentland was a good trainer for this. (Ex.18, Figueroa Depo, 74:22-75:13.) Perry said it would be expected that Wentland would train. (Ex. 3, Perry Depo, 75:14-18.) B. Wentland's Application for the Lawn & Garden Technician Position. 171. Wentland applied for a Lawn & Garden Service Technician position within the

new Aurora Repair Center. (Ex. 5, Wentland Depo, 96:18-98:12.) 172. In Wentland's technical interview, Garcia noted in his interview notes that

Wentland was planning to retire within the next year and a half, although now Garcia states he is unsure why he wrote that down. (Ex. 7, Garcia Depo, 71:22-25, 73:17-18.) Garcia interviewed Wentland for a Lawn & Garden Technician position, but Garcia did not feel he would be qualified to interview people on lawn and garden skills, and he did not have much experience with lawn and garden. (Ex. 7, Garcia Depo, 35:7-9, 11, 13-14.) 73

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173.

Garcia had a short technical interview with Wentland and found him technically

qualified for a position in Aurora. Garcia did not have any reason to believe that the leadership skills necessary for the Aurora Repair Center were different than had been required in the past. (Ex. 7, Garcia Depo, 79:8-17.) Garcia had in his interview notes that Carol Dobbins had specifically asked for the buyout. (Ex.7, Garcia Depo, 84:14-17.) He did not have this in his notes regarding Wentland. (Ex.7, Garcia Depo, 84:19-20.) 174. Wentland was not offered a position at the new Aurora Repair Center. Instead,

Sears offered Wentland a Field Technician position, a position that Sears' management knew Wentland could not perform due to the limitations caused by his high blood pressure resulting in recurring dizzy spells. (Ex.15, Wentland Affidavit, para. 2.) Wentland's doctor supported the fact that Wentland's high blood pressure caused recurring dizzy spells. (Ex. 15, Wentland Affidavit, para. 2; Ex. 5, Wentland Depo, 86:20-87:2; 89:25-90:8; 111/17-19; Ex. 10, Fanning Depo, 72:20-23.) Wentland was then not offered any alternative other positions by Sears and was terminated. (Ex. 5, Wentland Depo, 84:25-85:6, 85:10-15, 120:17-121:14; Ex. 31, Mufic Depo, 89:15-19.) 175. Sears now claims that Wentland told one of his interviewers, Perry, that he "did

not want a job and that he wanted to retire rather than take a position at the new Aurora facility." UF 20 (emphasis added.) (Ex. 5, Wentland Depo, 84:12-16.) It is undisputed however, that Wentland was not even eligible for retirement at the time of the redesign process because he was too young to retire. (Ex. 5, Wentland Depo, 38:7-16, 84:17-24.) 176. Moreover, as noted Plaintiffs Response to UF 26, (incorporated herein), there a

number of other discrepancies in Brooks' recent explanation for Wentland's non-hire. For 74

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example, while Brooks now claims that the decision to terminate Wentland was based on "his attitude toward the new process, his statements that he did not want the job, his indications that he wanted a severance package, and the resulting two `no offer' recommendations from his interviews," Sears' written statement to 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). 177. Further, in her deposition in 2005, Brooks claimed even more reasons for not

selecting him for a position, including his past work performance. Specifically, Brooks testified that she did not argue in support of keeping Wentland because, considering his "previous performance" in completing repairs he was not the "right person" for the redesign process. (Ex. 2, Brooks 2005 Depo, 73:4-25.) She testified she came to this conclusion by allegedly pulling production numbers from the Sears computer system - information clearly outside of any information conveyed to her by the interviewers. (Ex. 2, Brooks 2005 Depo, 73:3-75:25.) Notably, when asked in her 2005 deposition why she did not hire Wentland, Brooks never stated that she did not hire him because (1) he had told one of the interviewers that he did not want to work and only wanted to retire; or (2) that he told one of the interviewers that he wanted the "severance package" (Ex.2, Brooks 2005 Depo, 73:4-78:22). However, she said she knew at the time she made the decision that Wentland had told one of the interviewers that he had raised the issue of "retirement." (Ex. 2, Brooks 2005 Depo, 206:24-207:12.) 178. 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 75

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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.) 179. Further, there is another discrepancy. While Perry alleges that Wentland told him

he did not want the job because he wanted to "retire," Brooks now claims that she decided in part not to hire Wentland because Wentland had allegedly mentioned in the interviews he wanted "a severance package." UF 26. While Sears first told the EEOC Investigator that Wentland was not hired because he was "not interested in [the] team concept" and that "he would not be happy at the [new facility]." (Ex. 19, Sears' Wentland Position Statement, pg. 4.) 180. With regard to the topic of retirement, during Wentland's interview, Perry stated

that it would have been he who would have raised the retirement issue in the conversation, and that he would have raised the retirement issue because, in Perry's opinion, it would have been an inhibitor to Wentland being successful in the new shop. (Ex. 3, Perry Depo, 81:2-4, 18-20.) 181. Other than Perry's recollection that Wentland indicated that he wanted the buyout,

there was no other reason why he thought he might not have the necessary leadership skills or abilities required for the redesign. In fact, Perry found Wentland to be personable, and he had no doubt about his skill. Any image he had about Phil was positive. There was nothing negative in Wentland's profile to his recollection. (Ex. 3, Perry Depo, 85:20-86:6.) Perry also conceded that the interview process is kind of a subjective decision at the end of the day. His assessment related more to the leadership assessment of the process because determining leadership criteria is in and of itself more subjective than figuring out whether someone can fix a machine. (Ex. 3, Perry Depo, 88:23-89:10.) 182. It should be noted that Wentland talked to Figeuroa about his need to stay in the 76

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Denver area in order to take care of his father during that time period. (Ex. 18, Figueroa Depo, 120:9-12.) Wentland told Figeruoa he was living with his father and taking care of him, and that he felt tied to that responsibility until his father passed away. (Ex. 18, Figueroa Depo, 123:1520.) Figueroa said Wentland had never said the words "I don't actually want the job," and Figueroa saw Wentland going through the interview process and knew he wanted to stick around and take care of his dad until his dad passed away. (Ex.18, Figuero Depo, 124:16-125:5.) 183. Figueroa's understanding of his conversations with Phil regarding wanting a

buyout were that Wentland wanted a buyout where he could take his early retirement. (Ex. 18, Figueroa D