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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04cv01214-PSF-OES KATHLEEN M. TOWERS, Plaintiff, vs. SAFEWAY INC., Defendant.

REPLY BRIEF IN SUPPORT OF SAFEWAY'S MOTION FOR SUMMARY JUDGMENT

Jim Goh Emily Hobbs-Wright OF HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 (303) 295-8000 ATTORNEYS FOR DEFENDANT SAFEWAY INC.

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TABLE OF CONTENTS
I. II. INTRODUCTION ............................................................................................... 1 ARGUMENT ...................................................................................................... 1 A. B. Towers' Subjective Belief That She Was Qualified for the Promotion Cannot Defeat Summary Judgment. ........................................ 1 Towers Has No Evidence of Pretext......................................................... 6 1. 2. 3. 4. C. III. Events Outside the 300-Day Filing Period are Time Barred. .......... 7 Towers' Claim That She Was Subjected to More Stringent Standards Than Male Employees is Without Merit......................... 8 Towers' Remaining Evidence Does Not Support a Finding of Pretext. ....................................................................................... 10 Safeway's Decision Not to Promote Towers Was Based on Legitimate Subjective and Objective Factors. .............................. 14

Towers Does Not Have Direct Evidence of Discrimination. ................... 18

CONCLUSION ................................................................................................. 20

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I.

INTRODUCTION In its Memorandum Brief in Support of Safeway's Motion for Summary

Judgment (the "Memorandum Brief") Safeway argued, inter alia, that Towers cannot demonstrate that Safeway's proffered reasons for not promoting her to the warehouse supervisor position ­ her poor interview performance and lack of any prior supervisory or leadership experience ­ are a pretext for sex discrimination. In her Response Brief to Defendant's Motion for Summary Judgment Pursuant to F.R.C.P. 56 (the "Response"), Towers has not satisfied her burden to come forward with specific facts showing that there is a genuine issue for trial, and judgment should therefore enter on her Title VII sex discrimination claim. II. ARGUMENT A. Towers' Subjective Belief That She Was Qualified For the Promotion Cannot Defeat Summary Judgment.

Towers' Response confirms that her only "evidence" that she was better qualified for the warehouse supervisor positions than the successful candidates consists of nothing more than her own opinion that her seniority and her experience working in the warehouse made her the best-qualified candidate for the job. Specifically, Towers' Response is replete with self-serving statements that she was more qualified than the candidates whom Safeway selected to fill the open warehouse supervisor positions: she insists that she has greater seniority, more experience working in the warehouse, and a demonstrated commitment to the job. Response at 6, 7, 9, and 18. Towers also asserts that she gave "thoughtful, if not excellent" answers to some of the interview questions. Response at 23-24. As

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demonstrated below, Towers' subjective belief that she was better qualified for the warehouse supervisor position and that she performed well in the interview does not create a fact issue such that a trial is warranted. With regard to Towers' assertion that her seniority made her better qualified for the position, it is undisputed that seniority was not a factor in Safeway's promotion decision because the positions at issue were not a part of the bargaining unit. Towers Depo. 71:3-9. In addition, the fact that none of the supervisor positions was in the Produce Department, the only department in which Towers has worked during her 24year tenure at Safeway, undermines Towers' argument that her experience "directly translated to the requirements of the Warehouse Supervisor position." Response at 9. Further, Towers' claim that, in contrast to the successful candidates, she met all of the posted job qualifications, is unavailing. In fact, none of the job posting qualifications was required. Tab D to Memorandum Brief in Support of Safeway's Motion for Summary Judgment. 1 Rather, all of the qualifications were merely "preferred." Id.; White Depo. 53:25-54:20. One of the preferred qualifications was a college education, which Towers does not have. Towers Depo. 7:14-17; 8:16-17. Therefore, her argument that she met all of the qualifications on the job posting, whereas the male candidates did not, is simply not accurate.

All record citations are attached to Safeway's Memorandum Brief or Towers' Response unless otherwise noted herein. -2-

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Moreover, even if Towers had met all of the qualifications on the job posting, it is undisputed that, in contrast to the successful candidates, she lacked prior supervisory or leadership experience. Towers testified: Q: Mr. Grambusch, during that phone call, told you that the reason you were passed over for the job is because you lacked supervisory skills, was that right or wrong? They did ask me if I had any management or supervisory experience and I told them that I have not had the chance to be a supervisor or a manager to supervise employees, that was my answer.

A:

Towers Depo. 60:8-15. Because Safeway was seeking to hire employees to fill a supervisory-level position, it was within its discretion to select candidates who possessed prior leadership experience. See Simms v. Okla. Dep't of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1328-30 (10th Cir. 1999), cert. denied, 528 U.S. 815 (1999). Notwithstanding Towers' testimony that she informed the interviewers that she lacked supervisory or management experience, she now attempts to demonstrate that she possesses such experience through several affidavits of warehouse employees. See Exhibits 3-6. These employees claim that they have seen Towers perform "supervisorytype" work, and opine that Towers would be a "skilled and fair supervisor." To begin with, their statements about Towers performing "supervisory-type" work simply underscores the undisputed fact that she had not done any actual supervisory work. More importantly, those affidavits do not create a genuine issue of material fact for several reasons. First, it is undisputed that, during the interview, Towers informed the interviewers that she did not possess prior supervisory or management experience.

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Towers Depo. 60:8-15. Plaintiff may not introduce affidavits that contradict her own sworn testimony to create a "sham" issue of fact. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (courts should ignore an affidavit that conflicts with prior sworn testimony "when [the affidavit] constitutes an attempt to create a sham fact issue"). Second, there is no evidence that the witnesses communicated their impressions about Towers' alleged management abilities to the interviewers. Indeed, the affidavits contain no assertion that anyone informed any of the interviewers that Plaintiff possessed leadership experience. Because the information in those affidavits was never relayed to the interviewers during the decision-making process, plaintiff cannot establish that such information was available to the interviewers at the time of the interviews. As such, the affidavits have no relevance to this case. Third, the affidavits are self-serving, conclusory, and provide no detail about the "supervisory-type functions" that Towers allegedly performed. One affidavit mentions that Towers has trained employees. See Exhibit 3. However, as Grambusch testified, training is a common function of most employees with seniority, and not necessarily demonstrative of one's leadership abilities. Grambusch Depo. 234:4-18, Tab T hereto. As a result, the Court should decline to consider those affidavits. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002) (court will not consider self-serving and conclusory affidavits); Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (affirming summary judgment where plaintiff's affidavits were "merely conclusory," and noting that affidavits should be based on personal knowledge and should "set forth facts that would be admissible in evidence").

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With regard to her claim that she performed well in the interview, Towers has no evidence to overcome the interviewers' opinion that she performed poorly. See Kelley v. Good Year Tire and Rubber Co., 220 F.3d 1174, 1176 (10th Cir. 2000) (summary judgment appropriate where plaintiff failed to demonstrate that employer's reason for its decision not to hire him -- his poor performance in the interview -- was pretextual). It is the interviewers' perception of Towers' interview performance that is relevant, not Towers' subjective evaluation of her own performance. See Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996), cert. denied, 519 U.S. 1056 (1997), citing Branson v. Price River Coal Co., 853 F. 2d 768, 772 (10th Cir. 1988). The interviewers testified that Towers appeared to be very nervous, ill prepared, indecisive and primarily motivated by the unrealistic expectation of a pay increase. Grambusch Depo. 110:1-4; 243:7-15; 215:21-216:3; 212:13-213:5; 219:25-220:14:8; Rodriguez Depo. 95:10-23; Mercer Depo. 26:3-5; 26:24-27:4; Affidavits of William White at ¶ 7, Donald Grambusch at ¶ 6, Rick Rodriguez at ¶ 6, and Mark Mercer at ¶ 6. Towers took long awkward pauses, had to ask the panel to repeat certain questions several times, and gave responses that did not correspond to the subject matter of the questions. White Depo. 79:23-80:6;112:9-13; Affidavits of Rick Rodriguez at ¶ 6 and Mark Mercer at ¶ 6; Towers' Interview Responses, Tab K. Even Towers concedes that she gave non-responsive answers, and had to ask the interviewers to repeat certain questions. Towers Depo. 85:16-86:24; 92:4-14. Therefore, Towers' self-serving insistence that she performed better than the successful candidates in the interview is of no consequence.

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In sum, Towers has not met her burden of establishing that her qualifications were "overwhelmingly superior" to those of the other candidates for the warehouse supervisor position. Bullington v. United Airlines, Inc., 186 F.3d 1301, 1319 (10th Cir. 1999) (the disparity in qualifications must be "overwhelming" to be evidence of pretext) (emphasis added), citing Sanchez v. Phillip Morris, 992 F.2d 244, 247 (10th Cir. 1993). Therefore, because there is no evidence that Towers was objectively more qualified than the successful candidates for the warehouse supervisor position, judgment should enter on her sex discrimination claim. B. Towers Has No Evidence of Pretext.

In an effort to demonstrate that Safeway's reasons for not promoting her are pretextual, Towers claims that: (1) in contrast to male candidates, she was required to take computer classes and to acquire leadership experience in order to be considered for a promotion; (2) she had to notify Safeway of her interest in the warehouse supervisor position; (3) the interviewers unfairly asked her questions about her previous supervisory experience; (4) she was told that she would not receive a pay raise if promoted to the warehouse supervisor position; (5) she was not initially selected to interview for the warehouse supervisor position; and (6) men occupy 35 of the 37 warehouse supervisor positions at Safeway. These factual assertions--most of them distortions of the evidence in the record--fail to cast doubt on Safeway's stated reasons for not promoting Towers.

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1.

Events Outside the 300-Day Filing Period are Time Barred.

Towers claims that, in contrast to her male counterparts, she was "required" to take a computer course in order to be considered for management positions at Safeway. Response at 10. However, Towers fails to mention that the events surrounding the computer course transpired in 1995 in connection with a separate application for a supervisory position under a different warehouse director. Towers Depo. 38:21-39:9, Tab U hereto. A Title VII Plaintiff may sue only for acts of discrimination that occurred within 300 days before a charge is filed with the Equal Employment Opportunity Commission. 42 U.S.C. § 2000e-5(1). Any acts of alleged discrimination occurring prior to the 300day statutory time-period are time barred and cannot form the basis of a Title VII claim. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Here, because Towers did not file her charge of discrimination until August 21, 2002, no conduct occurring prior to October 25, 2001 may form the basis of her sex discrimination claim. Tab V hereto. (Towers' Charge of Discrimination). Thus, even putting aside plaintiff's factual distortions (see below), the alleged "computer course" requirement cannot support her discrimination claim.

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2.

Towers' Claim That She Was Subjected to More Stringent Standards Than Male Employees is Without Merit.

Towers' claim that, in contrast to male employees, she was required to take computer courses 2 in order to be considered for a promotion is belied by her own testimony. Response at 10. Towers testified that it was her idea, not Safeway's, to enroll in a computer course: A: And . . . I says, I don't know why I didn't get the job since the job is in my department, maybe it's because of my--I didn't have any computer skills, and I wasn't completely as qualified as the qualified candidate that they did have, because I did not have computer skills. *** So how did the computer issue come up? I was just rationalizing it in my mind, wondering is that the reason I didn't get the interview, because that's what I was lacking, computer skills. Maybe that's the reason.

Q: A:

Towers Depo. 36:5-10; 36:21-25, Tab U hereto. In light of Towers' own testimony, her argument that Safeway "required" her to enroll in computer courses should be rejected. See Bohn v. Park City Group, Inc., 94 F.3d 1457, 1463 (10th Cir. 1996) (refusing to consider affidavit submitted at summary judgment stage that contradicted prior sworn testimony). With respect to plaintiff's contention that she was unfairly required to acquire leadership experience, plaintiff seriously overstates the events surrounding Grambusch's offer to create an opportunity for her to gain leadership experience. Towers testified:

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Q: A. Q: A: Q: A: Q: A: Q: A:

Now as I understand it, Mr. Grambusch told you that you did not get the position because they felt you lacked supervisory skills; is that right? Yes. And then he offered to create a lead position for you so that you could acquire those skills; is that right? Yes. *** Now, Mr. Grambusch also offered to schedule a meeting with Mr. Rodriguez for you, correct? Yes. Did you understand the purpose of that meeting? To expose me to a leadership position and a lead person, if my union would permit it. He was taking steps to try to make that happen right? Yes, I would say yes.

Towers Dep. 62:10-20; 64:13-15; 64:25-65:6. Towers' own testimony that Grambusch "offered" to create a lead position so that she could acquire supervisory skills is a far cry from her present contention that working in a Lead position was mandatory. Towers was free to reject Grambusch's offer and, in fact, did reject such offer. Towers Depo. 65:12-22. After turning down Grambusch's offer, Towers made no further attempts to develop leadership skills, and simply elected not to apply for any subsequent supervisory positions. Towers Depo. 65:23-67:1. (cont'd.).. 2 As set forth above, events surrounding the computer course are time-barred. However, even if such events could form the basis of Towers' claim, they are not probative of discrimination. -9-

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Despite Towers' attempt to characterize Grambusch's offer to place her in a leadership position as discriminatory, she has no evidence, other than her bald assertion, that Grambusch's offer constituted less favorable treatment based on her gender. To the contrary, unlike the unsuccessful male candidates, Towers was afforded an opportunity to develop the skills that she lacked. Affidavit of Donald Grambusch at ¶ 11. Therefore, Towers' conclusory allegation that she was subjected to more stringent standards than male employees is insufficient to defeat summary judgment. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir. 1994) (allegations alone will not defeat summary judgment). 3. Towers' Remaining "Evidence" Does Not Support a Finding of Pretext.

Towers claims that the fact that Grambusch solicited a male employee for the warehouse supervisor position, but did not solicit her, constitutes evidence of pretext. Response at 10. Notably, Towers fails to identify a specific male employee whom Grambusch allegedly "solicited" for the position. Nevertheless, such evidence is immaterial because it is undisputed that the first time Towers told Grambusch that she was interested in a supervisory position was when she called him to request an interview. Towers Depo. 52:4-53:4. She further testified that Grambusch immediately granted her request. Towers Depo. 53:5-7. Therefore, since Grambusch was not previously aware that Towers was interested in a supervisor position, it logically follows that he would not have had any reason to ask her to interview for the position. Towers also claims that the interviewers unfairly asked her questions about her previous supervisory experience, and asked her a question that they did not pose to the -10-

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other candidates. Response at 8-9. Again, Towers provides no record support for her statement. In fact, she does not even identify the question that was asked of her but not of the other candidates. Notwithstanding the absence of record support, Towers' assertions do not demonstrate that Safeway's stated reasons for not promoting her are pretextual. The questions regarding management experience were listed on the preprinted form that Safeway used in all of the interviews. Mercer Depo. 18:11-22; Affidavit of William White at ¶ 4. Indeed, all candidates were asked the same questions, including questions concerning their prior supervisory experience. Id. Therefore, there is no evidence that the interviewers singled out Towers when they asked her such questions. Towers further claims that the fact that she was told that she would not receive a pay raise if promoted to the warehouse supervisor position is evidence of a discriminatory motive. Response at 20. Once again, Towers distorts the uncontroverted evidence. Towers conceded in her deposition that, if Safeway had awarded her the promotion, her acceptance of the position was conditioned upon receiving the highest salary level. Towers Depo. 67:22-25. The salary range for the warehouse supervisor position was $38,200 to $49,700. Tab D. Towers was making $45,000 at the time of her application. Towers Depo. 49:16-18. Towers informed the interviewers that she wanted a salary of $49,700, the top pay. Towers Depo. 49:1950:19. In response to her demand for a salary of $49,700, Grambusch stated that he would not pay her that amount. Id. Despite Towers' present mischaracterization of the evidence, it is undisputed that Towers did not merely seek a pay raise; rather, she

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sought the highest salary level associated with the position. Towers Depo. 49:1950:19. Towers has no evidence that any of the successful candidates were awarded the highest salary amount. To the contrary, according to the same testimony which Towers cites in support of her argument, Pawelcik and King were hired into the warehouse supervisor positions at a salary of $41,995.20, more than $7,000 dollars less than the salary that Towers demanded. Pawelcik Depo. 38:10-39:22; King Depo. 86:9-87:21. 3 Had Safeway awarded Towers the promotion at the same salary level as Pawelcik and King, she would have been required to take a pay cut. Therefore, Towers cannot demonstrate that Grambusch treated her less favorably than male applicants when he informed her that, if selected for the position, she would not receive her desired pay increase. Next, Towers argues that pretext can be inferred from the fact that White did not initially select her to interview for the supervisor position despite the fact that she was allegedly "more qualified than the males who were chosen for the position." Response at 16. Again, Towers' argument presupposes that she was in fact more objectively qualified for the position based solely on the preferred qualifications in the job posting--a contention that is unsupported by the evidence. Id. In essence, Towers argues that Safeway was required to strictly adhere solely to the preferred qualifications listed on the job posting when selecting interview candidates, and may not stray into Notably, Troy Thomas, who was already a supervisor and who had a college degree, received less than the top pay when he took the warehouse supervisor job. Grambusch Depo. at 223:6-14. -123

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other considerations such as leadership or supervisory experience. Response at 15. However, imposing this type of requirement would require the Court to render judgments regarding Safeway's selection process, a role which courts uniformly reject. Simms, 165 F.3d at 1330 (stating that the court will not sit as a "super personnel department" that second guesses employers' business judgments.) White testified that he placed resumes of individuals who possessed prior supervisory experience as indicated on their resumes in the "preferred pile." White Depo. 53:14-23. While Towers had significant experience working in the warehouse, her resume was not placed in the preferred pile because she did not possess supervisory experience. Id. Towers has no evidence that White's focus on prior supervisory experience was a pretext for gender discrimination. To the contrary, in light of the fact that Safeway was hiring for a supervisory position, White's act of prioritizing the candidates based on prior supervisory experience was a legitimate nondiscriminatory basis for distinguishing between candidates. Id. at 1328-1330 (holding that prior supervisory experience was legitimate nondiscriminatory basis for distinguishing between candidates for supervisory position). Finally, Towers claims that the fact that men hold thirty-four of the thirty-seven warehouse supervisor positions establishes a pattern and practice of discrimination against females. Response at 10. However, such evidence is not probative of gender discrimination because it sheds no light on the number of female applicants for warehouse supervisor positions. Absent evidence regarding the number of females in the applicant pool, the number of men, as opposed to women, who hold warehouse

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supervisor positions is not probative of any issue in the case. See Wyninger v. New Venture Gear, Inc., 245 F.Supp.2d 976, 983 n.7 (S.D. Ind. 2003) (plaintiff's claim that company had only hired one female supervisor in two years had no bearing on her Title VII claim where she failed to present evidence regarding the number of female applicants for such positions). 4. Safeway's Decision Not to Promote Towers Was Based on Legitimate Subjective and Objective Factors.

Towers argues that pretext can be inferred from the alleged subjective nature of Safeway's interview process. Response at 22. In support of her argument, Towers cites to various decisions that support, rather than undercut, Safeway's contention that summary judgment on Towers' claim is appropriate. For example in Bauer v. Bailar, 647 F.2d 1037, 1047 (10th Cir. 1981), one of the principal cases cited by Plaintiff, the Tenth Circuit stated that subjective considerations in the promotion context are not unlawful per se. The court held that, because the promotion decisions in that case involved supervisory positions, the abilities of the candidates for such positions could not be evaluated by objective criteria alone. Id. The court upheld the trial court's grant of summary judgment in the employer's favor on grounds that its decision not to promote Bauer, a female, over a male candidate was justified because Bauer's qualifications were not "so plainly superior as to require a finding of pretext." Id. at 1048. Specifically, while Bauer had greater experience working in the department where the job opening existed, the candidate that the employer selected for the position had more supervisory experience. Id. at 1047.

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Similarly, in Burrus v. United Telephone Co. of Kansas,Inc., 683 F.2d 339, 342 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982), the Tenth Circuit noted that, while subjective decision making can provide an opportunity for unlawful discrimination, "subjective evaluations play a legitimate part in an employer's determination whether an employee has the ability to supervise others." The court's decisions in Bauer and Burrus make clear that subjective evaluations play an important, legitimate role in the context of promotion decisions involving supervisory positions like the one at issue here. Further, as the Tenth Circuit noted in Jones v. Barnhart, 349 F.3d 1260, 1267-68 (10th Cir. 2003), the court typically infers pretext in a failure to promote case only when the criteria on which the employers ultimately rely are "entirely subjective in nature." In Jones, the court held that, because the employer selected candidates who were objectively better qualified in terms of experience, Jones could not demonstrate that the employer's failure to promote her was a pretext for race discrimination. Id. Here, like the employers in Bauer, Burrus, and Jones, Safeway relied on a combination of subjective and objective factors in reaching its decision to promote Thomas, King and Pawelcik over the other candidates. Specifically, the interviewers selected the candidates who were objectively more qualified based on prior supervisory or leadership experience in addition to the posted requirements of the warehouse supervisor position. See Safeway's Memorandum Brief at 6-7. From a subjective standpoint, the interviewers also took into account the manner in which the candidates responded to, and handled, the interview questions. Grambusch Depo. 129:7-15. As

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the Tenth Circuit noted in Bauer, an employer's reliance on subjective factors is logical when it is hiring for supervisory positions because such positions require abilities that cannot be "fully measured by objective standards." Bauer, 647 F.2d at 1046. The few cases cited by Towers which resulted in a finding of pretext are inapposite. Those cases indicate that pretext may be inferred in circumstances where the plaintiff is objectively more qualified for the position and/or the selection procedures are inadequate and entirely subjective. For example, in Mohammed v. Callaway, 698 F.2d 395, 401 (10th Cir. 1983), the Tenth Circuit held that, where a minority candidate is objectively better qualified than a non-minority candidate, and the employer relies on subjective factors to support its selection of the non-minority candidate, pretext can be inferred. In that case, the supervisor responsible for the hiring decision relied solely on his review of the applicants' personnel files without convening a committee or interviewing the candidates. Id. at 397. Following this review, the supervisor selected the non-minority candidate to fill a supervisory level position over Mohammed because of the nonminority candidate's alleged experience, education, ability, and dedication. Id. However, in contrast to the successful candidate, Mohammed had previously held a supervisory position. Id. In addition, Mohammed's college degree in engineering matched the requirement of the job posting whereas the successful candidate did not possess such a degree. Id. at 400. Under these circumstances, the court held that pretext could be inferred based on Mohammed's objectively superior qualifications and the subjective nature of selection process. Id. at 401.

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In Pitre v. Western Electric Co., Inc., 843 F.2d 1262, 1271-72 (10th Cir. 1988), the Tenth Circuit upheld the trial court's finding that the highly subjective nature of the employer's hiring and promotion decisions served as a pretext for sex discrimination. The employer did not post job openings and advancement within the company depended exclusively on the recommendation of supervisors, the majority of whom were male. Id. at 1270. Pitre also demonstrated that at least one clearly less qualified male was promoted instead of her. Id. at 1273. This evidence, coupled with significant evidence that the managers who were responsible for promotion decisions held discriminatory attitudes towards women, supported a finding of pretext. Id. Finally, Garrett, 305 F.3d at 1218, arose in the context of performance evaluations, not a promotion decision. Garrett alleged that his employer discriminated against him on the basis of his race, African-American, and age when, after twenty years of service with the company, his above average performance evaluations became increasingly negative. As a result of his increasingly poor performance evaluations, Garrett was downgraded in his ranking, which in turn lowered his pay grade. Id. at 1215. Garrett challenged the evaluation and ranking process as entirely subjective and thus susceptible to discriminatory abuse. Id. at 1217. The court agreed that the evaluation and ranking system was wholly subjective and pretextual in nature because it was based solely on the opinion of Garrett's supervisor. Id. at 1218. The court also found it to be significant that the employer conceded that its evaluation systems were entirely subjective. Id.

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The common thread in these cases consisted of evidence that the selection/evaluation processes were entirely subjective in nature and that the plaintiffs were able to demonstrate that they possessed objectively superior qualifications than the individuals who were selected for the positions. In contrast to those cases, Towers cannot demonstrate that she was objectively more qualified for the warehouse supervisor position; nor can she demonstrate that the selection process was entirely subjective in nature. As a result, based on the cases Towers herself relies on, summary judgment is appropriate on her sex discrimination claim. C. Towers Does Not Have Direct Evidence of Discrimination.

Direct evidence of discrimination exists where a plaintiff presents proof of an existing policy which itself constitutes discrimination. See Mosley v. Pena, 100 F.3d 1515, 1519 (10th Cir. 1996). Statements of personal opinion constitute only circumstantial or indirect evidence of discrimination. Id. Remarks based on sex stereotypes "do not inevitably prove that gender played a part in a particular employment decision." Ramsey v. City and County of Denver, 907 F.2d 1004, 1008 (10th Cir. 1990), cert. denied, 506 U.S. 907 (1992). Rather, the plaintiff must show that the employer actually relied on her gender in making a decision. Id. In what can only be viewed as desperation, Towers contends that Grambusch's testimony that "confidence" is one of the primary traits that he looks for in a supervisory candidate constitutes "direct" evidence of discrimination. Response 11-12. However, as Towers' Response makes clear, at no point did Grambusch indicate that he views confidence as a trait that is possessed by males as opposed to females. As a

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result, any connection between confidence and gender necessarily requires an inferential leap, and cannot, therefore, constitute direct evidence of discrimination. Towers also claims that Grambusch's testimony regarding a female supervisor constitutes direct evidence of discrimination. Grambusch testified that the "Teamsters" (the union employees at Safeway) tend to take advantage of supervisors who are not strong and confident in their personnel management skills. Grambusch Depo. 73:21-25. Grambusch stated that the Teamster employees "test you and expose your weaknesses and exploit that." Grambusch Depo 74:3-5. In response to a question regarding a specific example of this type of conduct, Grambusch described an incident that had taken place just days prior, in which a group of male employees hid in the men's restroom in order to avoid their female supervisor. Grambusch Depo. 74:6-23. When asked whether he believed that Teamsters would try to take advantage of a female more than a male supervisor, Grambusch responded: "No. They test everybody." Grambusch Depo. 75:5-11. In a tortured reading of the evidence, Towers argues that Grambusch's statements demonstrate that he has a bias against female supervisors. Response at 13. However, Towers' Response makes clear that she only reaches this conclusion after making a series of attenuated inferences which result in a complete distortion of Grambusch's testimony. The extremely attenuated nature of Towers' conclusion demonstrates that Grambusch's statements are the antithesis of direct evidence of discrimination.

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Grambusch's testimony also does not constitute circumstantial evidence of discrimination. The event described by Grambusch involved a separate employee and was wholly unconnected to the promotion decision at issue in this case. Further, Grambusch specifically testified that the Teamsters would not be more likely to take advantage of a female supervisor over a male supervisor. Therefore, no reasonable fact-finder could conclude that that Grambusch's testimony evidences a gender bias against Towers. III. CONCLUSION For the reasons set forth above and in Safeway's Memorandum Brief in Support of Motion for Summary Judgment, judgment should be entered in favor of Safeway on Towers' sex discrimination claim. Dated: September 22, 2005. s/Emily Hobbs-Wright Jim Goh Emily Hobbs-Wright HOLLAND & HART LLP 555 ­ 17th Street, Suite 3200 Denver, CO 80202 (303) 295-8584 Fax No.: (303) 295-8261 [email protected] [email protected] ATTORNEYS FOR DEFENDANT SAFEWAY INC.

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Case 1:04-cv-01214-PSF-OES

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CERTIFICATE OF SERVICE I hereby certify that on September 22, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected]

s/Emily Hobbs-Wright Emily Hobbs-Wright Holland & Hart LLP 555 ­ 17th Street, Suite 3200 P. O. Box 8749 Denver, CO 80202 (303) 295-8584 Fax No. (303) 295-8261 [email protected]

3447981_1.DOC

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