Free 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. 04-F-1214 (OES) KATHLEEN M. TOWERS, Plaintiff, v. SAFEWAY INC., a Delaware Corporation, Defendant. ______ PLAINTIFF'S RESPONSE BRIEF TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO F.R.C.P. 56 ______

Submitted this 31st day of August, 2005.

TRUHLAR and TRUHLAR, L.L.P. Robert J. Truhlar Doris B. Truhlar 7340 East Caley Avenue, Suite 310 Centennial, CO 80111 Phone: (303) 794-2404 Facsimile: (303) 794-1142 Attorney for Plaintiff

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TABLE OF CONTENTS Page I. II. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A HISTORY OF SAFEWAY'S FAILURE TO PROMOTE MS. TOWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. B. C. D. E. F. Background of Ms. Towers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Job Posting and Ms. Towers' Application . . . . . . . . . . . . . . . . . . . . Males Interviewed Lacked Job Posting Qualifications . . . . . . . . . . . . . . Safeway Selected Three Males and Did Not Promote Ms. Towers . . . . Ms. Towers Was More Qualified Based On Experience . . . . . . . . . . . . . Safeway Favored Males by Soliciting Them and Waiving Computer Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 3 6 7 8 9

10

III.

DIRECT EVIDENCE OF MR. GRAMBUSCH'S GENDER BIAS TOWARDS MS. TOWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Mr. Grambusch Thinks Being a Female Is a Weakness For a Warehouse Supervisor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Although Ms. Towers Met All the Job Posting Qualifications, Mr. White Did Not Initially Schedule An Interview With Her . . . . . . . .

11

11

B.

14

IV.

MS. TOWERS MEETS THE BURDEN TO ESTABLISH A PRIMA FACIE CASE OF DISCRIMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MS. TOWERS CAN ESTABLISH THAT DEFENDANT'S ARTICULATED REASONS FOR NOT PROMOTING MS. TOWERS IS PRETEXTUAL . . . . . A. A Lead Position Was Not Required For the Job Position, Or of the Male Applicants, But Was Required of Ms. Towers . . . . . . . . . . . . . . . . . Ms. Towers' Work Record Shows She Has a Commitment to Safeway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

V.

18

18

B.

20

i

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Page

C.

The Extreme Subjective Evaluation of Ms. Towers During the Interview Process and Poor Documentation Show Pretext . . . . . . . . Pretext May Be Established Through a Number of Different Methods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Safeway's Reasons Not to Select Ms. Towers Are Replete With Inconsistencies and Contradictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21

D.

26

E.

28 31 31

VI.

LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. B. Summary Judgment Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plaintiff Can Establish that Defendant's Articulated Reason for Termination Is Pretextual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32 40

VII.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF AUTHORITIES CASES Page Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).................................... Bauer v. Bailar, 647 F.2d 1037 (10th Cir. 1981)............................................. Bell v. Bolger, 708 F.2d 1312 (8th Cir. 1983)...................................................... Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136 (9th Cir. 2001)...................................................................................... Blue Circle Cement, Inc. v. Board of County Comm'rs, 27 F.3d 1499 (10th Cir. 1994)................................................................................... Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339 (10th Cir.), cert. denied, 459 U.S. 1071 (1982)............................................................ Celotex Corp. v. Catrett, 477 U.S. 317 (1986)............................................... Conner v. Schnuck Mkts., Inc., 121 F.3d 1390 (10th Cir. 1997)............................ Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105 (10th Cir. 1991)...... Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)............................................. Drake v. City of Fort Collins, 927 F.2d 1156 (10th Cir. 1991).............................. EEOC v. Flasher Co., 986 F.2d 1312 (10th Cir. 1992)....................................... EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000)............... Foster v. Alliedsignal, Inc., 293 F.3d 1187 (10th Cir. 2002)................................. Garrett v. Hewlett-Packard Co., 305 F.3d 1210 (10th Cir. 2002)..................... Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004).............................. Ingels v. Thiokol Corp., 42 F.3d 616 (10th Cir. 1994)...................................... 32, 34 38, 39 39

36, 39

32

38, 39 31, 32 34, 35 32 35, 37 33 34 36 36 35, 38, 39 36 33, 35

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Page James Marlow Family Ltd. Partnership v. David M. Munson, Inc., 124 F.3d 1321 (10th Cir. 1997)............................................................... Johnson v. Penske Truck Leasing Co., 949 F. Supp. 1153 (D.N.J. 1966)............... Jones v. Barnhart, 349 F.3d 1260 (10th Cir. 2003)........................................ Kelley v. Goodyear Tire & Rubber Co., 220 F.3d 1174 (10th Cir. 2000)............... Lindsey v. Prive Corp., 987 F.2d 324 (5th Cir. 1993)...................................... Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492 (10th Cir. 1992)....................

32 26 36, 38 39 39 31, 32

McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973)........................ 17, 33, 34, 36, 37 Mohammed v. Callaway, 698 F.2d 395 (10th Cir. 1983).................................... Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997)........................................ Nulf v. International Paper Co., 656 F.2d 553 (10th Cir. 1981)............................ Ortega v. Safeway Stores, Inc., 943 F.2d 1230 (10th Cir. 1991)........................... Ortiz v. Norton, 254 F.3d 889 (10th Cir. 2001)............................................... Otteson v. United States, 622 F.2d 516 (10th Cir. 1980).................................... Pitre v. Western Elec. Co., Inc., 843 F.2d 1262 (10th Cir. 1988)......................... Randle v. City of Aurora, 69 F.3d 441 (10th Cir. 1995).................................... 38 35 3, 17 33 40 31 38, 39 33, 34

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)..................... 15, 24, 33, 34 Rogers v. Missouri Pacific R. R. Co., 352 U.S. 500 (1957).............................. Simms v. Oklahoma ex. rel. Dept. of Mental Health, 165 F.3d 1321 (10th Cir.), cert. denied, 528 U.S. 815 (1999)........................................................... Sorensen v. City of Aurora, 984 F.2d 349 (10th Cir. 1993).............................. 35

38 32, 33

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Page Sprague v. Thorn Americas, Inc., 129 F.3d 1355 (10th Cir. 1997)..................... St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)................................... Texas Dep't of Community Affairs v. Burdine, 450 U.S. 348 (1981)...................... Tyler v. Re/Max Mountain States, 232 F.3d 808 (10th Cir. 2000)...................... Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988).......................... White v. York Int'l Corp., 45 F.3d 357 (10th Cir. 1995)..................................

2, 17 34 2, 17, 33 38 32 31

RULES Fed. R. Civ. P. 56(c) ............................................................................. STATUTES AND OTHER AUTHORITIES 42 U.S.C. § 2000e-2(m).......................................................................... Title VII of the Civil Rights Act of 1964, as Amended in 1991........ 37 31

1, 2, 3, 11, 17, 36, 37

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Kathleen M. Towers v. Safeway Inc. United States District Court for the District of Colorado Civil Action No. 04-F-1214 (OES) Index of Exhibits to Plaintiff's Response Brief to Defendant's Motion for Summary Judgment

EXHIBIT NUMBER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

DESCRIPTION Towers Deposition Plaintiff's Sworn Response to Interrogatory No. 4(c) Affidavit of Vern Adler Affidavit of Lee Grove Affidavit of Frank Talmadge Affidavit of Tim Siegworth King Deposition Pawelcik Deposition Selected Job Posting Qualifications and Key Responsibilities Versus Applicant Resumes King Training Record Pawelcik Training Record Thomas Training Record White Deposition Grambusch Deposition Rodriguez Deposition Mercer Deposition Affidavit of Marcella Peterson Grambusch Notes of King's Interview Graumbusch Notes of Pawelcik's Interview Grambusch Notes of Thomas' Interview Plaintiff's Request for Admission and Defendant's Responses Towers Transcript Affidavit of Thomas Richardson

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01214-PSF-OES

KATHLEEN M. TOWERS, Plaintiff, v. SAFEWAY INC., a Delaware corporation, Defendant. _____ PLAINTIFF'S RESPONSE BRIEF TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56, FED. R. CIV. P. _____

Plaintiff, by her attorney Robert J. Truhlar of Truhlar and Truhlar, L.L.P., files this Response Brief to Defendant's Motion for Summary Judgment, and Defendant's Memorandum Brief in Support of Safeway's Motion for Summary Judgment. I. INTRODUCTION

This is a gender discrimination case pursuant to Title VII of the Civil Rights Act of 1964, as amended in 1991. The plaintiff, Kathleen Towers ("plaintiff," "the plaintiff" or "Ms.

Towers"), a woman, has been employed by the defendant, Safeway Inc. ("Safeway" or "the Company") for twenty-seven years, filling a variety of jobs at the huge Safeway Distribution Center. Ms. Towers was discriminated against based upon her gender when she was not

promoted to Warehouse Supervisor in July 2002. There were three openings. Three men were

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chosen for the openings, despite the fact that none of the three fulfilled all the qualifications posted by Safeway for the supervisor job. The Company ignored the requirements of its posted qualifications and, instead, imposed subjective qualifications that were not posted as part of the job prerequisites. The plaintiff not only met all of the qualifications for the job as posted, but also attended computer classes as suggested by Safeway (making all A's in her work), in order to gain what the Company claimed to Ms. Towers were required skills to qualify for the job. Furthermore, the interview of the plaintiff lasted only fifteen minutes, while the Company granted the male applicants interviews ranging from thirty to forty-five minutes in length. Ms. Towers has direct evidence that the Safeway decision-maker believed that another woman employee who was a supervisor had difficulty functioning as a supervisor because she couldn't go in the men's restroom to reprimand male employees who were wasting time and loafing on the job. He admitted he considered this a weakness based on gender! The plaintiff not only met all the qualifications, but she also was highly regarded by coworkers as someone who has already taken on supervisory duties and tasks. The reasons stated by the Company for failing to promote the plaintiff clearly were pretextual. The plaintiff has more than met her burden of proof required for summary judgment, which is not an onerous one. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). "In order to establish a prima facie claim of discriminatory failure to promote under Title VII, [plaintiff] was required to `show that there were promotional opportunities available that were filled by males, that she was qualified for promotion and that despite her qualifications she was not promoted.'" Sprague v.

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Thorn Americas, Inc., 129 F.3d 1355, 1362 (10th Cir. 1997) (quoting from Nulf v. International Paper Co., 656 F.2d 553, 558 (10th Cir. 1981). Ms. Towers has amply met her burden of proof, as is discussed herein. Ms. Towers respectfully requests that Safeway's Motion for Summary Judgment be denied. II. HISTORY OF SAFEWAY'S FAILURE TO PROMOTE MS. TOWERS

Plaintiff, a female, began working for Safeway on February 11, 1978. (Final Pretrial Order at 9-10, Stipulations 1 and 6) Ms. Towers is still employed at Safeway in the Denver Warehouse. (Ex. 1, Towers Dep. at 10:5-13) During her tenure with Safeway, Ms. Towers has held various positions and gained considerable valuable experience. (Ex. 1, Towers Dep. at 13:10-17 and 15:8-17) Ms. Towers brings a claim pursuant to Title VII against Safeway based on gender discrimination for Safeway's failure to promote her to a Warehouse Supervisor position. A. Background of Ms. Towers Ms. Towers has worked in the Safeway Denver Warehouse for more than twenty-seven years, and has the highest seniority of all female employees in the Produce Warehouse. (Ex. 2, Towers' Sworn Response to Interrogatory No. 4(c) at 8) Ms. Towers has worked at Safeway for her entire working career. Her job title is currently Warehouse Worker Order Selector in the Safeway Denver Distribution Center. Plaintiff's current experience in the Produce Warehouse and in previous positions in the distribution center have allowed her to become familiar with and implement proper workplace procedures, including compliance with state and federal regulations, safety practices, and Safeway policies. Id.

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Ms. Towers' first Safeway job was Order Selector. Then she bid for a position in the warehouse as an Inspector. She held the Inspector position for sixteen years. She was interested in being an Inspector because she would have the opportunity to assume greater responsibilities and to gain broader experience in the warehouse. She has also worked in the warehouse loading trucks, working in a stocking position for approximately three years, working in the shipping department, and becoming a floor stocker. She has worked in every position available in the warehouse, except supervisory jobs. Id. An employee on both night shifts and day shifts, Ms. Towers has twenty-five years total experience working in the Produce Warehouse. She has strong interpersonal and communication skills. She has trained many people in the warehouse for a myriad of positions. She has taken responsibility for ensuring that new employees learn how to perform their jobs properly. Her experience enables her to solve problems on the spot and assist others in remedying problems as they arise. She is knowledgeable of OSHA safety regulations, sanitation and food safety. She has toured the warehouse and identified safety hazards. She has been trained to handle

hazardous chemicals and prevent and avoid workplace dangers such as exposed pipes, slippery floors, fire hazards, and spilled battery acid. She is thoroughly trained in warehouse sanitation regulations, which are in accordance with OSHA safety regulations. Her experiences in training have made her knowledgeable with regard to food safety. Id. An employee with vast experience using the warehouse management system to control inventories, Ms. Towers has hand counted inventory in order to ensure that the older inventory goes to the store first. She is experienced in using Safeway's "pull date" system in order to get merchandise and inventory out on a certain date. She is able to chart, forecast, plan, manage, and

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measure day-to-day operations. She has done every non-supervisory job in the warehouse. She knows what is required for each position step-by-step. Due to her experience, Plaintiff knows when a job has been done well, and she knows how to present problems or effectively handle any issues that may arise. Id. at 9. Plaintiff interacts well with multiple levels of management and in furtherance of company goals. She has interacted with multiple levels of management when managers are discussing her job duties. She abides by what her managers say and respects their authority. She has always gotten along well with, and never has had any conflict with, her managers. Ms. Towers possesses initiative, customer service skills and resourcefulness. She understands that her job must be completed efficiently. Ms. Towers knows that she must take initiative in order to complete her tasks as needed, both personally and as a team. She has led others in their job duties. She has coached other employees. Ms. Towers has trained new employees. She has vast knowledge of warehouse operations. Id. Ms. Towers has performed supervisory-type work and functioned at a supervisory level in the eyes of her co-workers. (See Ex. 3, Adler Aff.; Ex. 4, Grove Aff.; Ex. 5, Talmadge Aff.; Ex. 6, Siegworth Aff.; Ex. 23, Richardson Aff.) Additionally, Ms. Towers has worked with buyers to maintain Safeway inventory, and she understands how to replenish the inventory when needed. She knows how to insure that only the best product goes to the consumer. Every day she makes it a part of her job duties to clean her workspace and ensure that others do the same. Interrogatory No. 4(c) at 9) Throughout Ms. Towers' career at Safeway, she has always adhered to Safeway policies, procedures, and practices. She has never had any warnings or notification that she is violating (Ex. 2, Towers' Sworn Response to

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Safeway procedure. Id. Furthermore, she has more experience working in the warehouse than any of the candidates selected for the Warehouse Supervisor II position. Id. at 10. (Ex. 1, Towers Dep. at 71:10-21, 72:10-18, 72:23-73:6; Ex. P, King resume; Ex. Q, Pawelcik resume; Ex. O, Thomas resume) B. The Job Posting and Ms. Towers' Application On July 1, 2002, Ms. Towers submitted her resume for the position of Warehouse Supervisor in response to a job posting indicating that three such openings were available. (Final Pretrial Order at 10, Stipulation 8) Upon submitting her resume for the position, Ms. Towers contacted her supervisor, Mr. Don Grambusch, and asked to be interviewed. Mr. Grambusch told her to contact Willie White. (Ex. 1, Towers Dep. at 52:4-18) Safeway listed the supervisor position with the following desired qualifications: o High school education; o 5+ years of distribution, production, or warehouse experience; o Knowledge of OSHA safety regulations, sanitation, and food safety; o Experience using warehouse management system to control inventories; o Strong interpersonal/communication skills necessary for successful leadership; o Ability to chart, forecast, plan, manage, and measure day-to-day operations; o Able to interact with multiple levels of management in furtherance of company goals; and o Possess initiative, customer service skills, and resourcefulness. (Ex. D, Job Posting)

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C.

Males Interviewed Lacked Job Posting Qualifications Ms. Towers was granted an interview along with five other candidates. (Defendant's

Brief at 3) Ms. Towers was the only female interviewed for the position (Defendant's Brief at 3) and met all the qualifications specified in the job posting. (Defendant's Brief at 4; Ex. 13, White Dep. at 53:24-54:2) Each of the three male candidates who ultimately received the promotions lacked one or more of the qualifications in the job posting. Mr. King admitted that he had no OSHA or sanitation training prior to becoming a supervisor. (Ex. 7, King Dep. at 9:14-16, 10:13-17) In addition, Mr. Pawelcik admitted that he did not take any computer courses and had no management experience prior to applying for the Warehouse Supervisor position. (Ex. 8, Pawelcik Dep. at 6:4-9). A review of the applicants' resumes versus selected job posting qualifications shows that Mr. King did not even mention his educational background on his resume; Ms. Towers had superior experience when compared to Mr. King, Mr. Pawelcik, and Mr. Thomas; and Ms. Towers was the only person of the four to demonstrate any knowledge of OSHA safety regulations, sanitation, and food safety on her resume. Moreover, Mr. Pawelcik demonstrated no experience using warehouse management inventory systems, and neither Mr. King nor Mr. Pawelcik conveyed any working knowledge of Microsoft Word or Excel. (Ex. 9, Selected Job Posting Qualifications and Key Responsibilities Versus Applicant Resumes ­ a demonstrative chart. See also Ex. H, Towers Resume; Ex. P, King Resume; Ex. Q, Pawelcik Resume; and Ex. O, Thomas Resume.)

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A review of the applicants' resumes versus selected job posting key responsibilities shows that Mr. Pawelcik and Mr. Thomas did not demonstrate any ability to work with buyers to maintain inventory, Mr. Pawelcik had no experience managing inventory, and Mr. King and Mr. Pawelcik had no experience or knowledge that would enable them to set, monitor, and maintain a safe and sanitary work environment. (Ex. 9, Selected Job Posting Qualifications and Key Responsibilities Versus Applicant Resumes demonstrates these discrepancies. See also Ex. H, Towers Resume; Ex. P, King Resume; Ex. Q, Pawelcik Resume; and Ex. O, Thomas Resume.) D. Safeway Selected Three Males and Did Not Promote Ms. Towers Ms. Towers had an interview with a panel of four male Safeway management employees. The interviewers were Don Grambusch, Director of the Denver Distribution Center for Safeway at 4600 Stapleton Dr. South in Denver; Willie White, Safeway's Denver Employment Specialist; Rick Rodriguez, Produce Warehouse Manager for Safeway; and Mark Mercer, Warehouse Supervisor for Safeway. (Defendant's Brief at 4) After completing the interviews, Safeway filled the three open Warehouse Supervisor positions with three males: Mr. Victor King, Mr. Richard Pawelcik and Mr. Troy Thomas. (Defendant's Brief at 6; Ex. 1, Towers Dep. at 70:7-15) Ms. Towers was not selected for any of the three positions. (Final Pretrial Order at 10, Stipulation 9) In making its decision, the company completely deviated from its posted qualifications and subjectively chose male candidates based on interview answers. The candidates, including Ms. Towers, offered similar answers to each question posed. However, the team of four

interviewers chose not to ask Ms. Towers a question that was asked of the other male candidates, yet asked Ms. Towers a series of questions related to management experience when such

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experience was not required for the job. The interviewers knew Ms. Towers was not a manager in the Produce Warehouse, and knew Safeway did not have any managerial positions in the Produce Warehouse below that of the supervisor position whereby Ms. Towers would gain formal experience managing others. Safeway intentionally asked Ms. Towers about managerial experience knowing she had not ever before had the opportunity to act as a supervisor for Safeway. Importantly, management experience was not a qualification listed on the job posting. (Ex. D, Job Posting) In effect, when Ms. Towers met all the qualifications on the job posting and male applicants did not meet them, Safeway used other subjective requirements to disqualify Ms. Towers. E. Ms. Towers Was More Qualified Based On Experience Ms. Towers was more qualified than the three men awarded the positions. At the time of the July 2002 interview, she had more than twenty-four years of seniority. Ms. Towers worked in the warehouse for this entire time, making her intimately familiar with the inner workings of the Distribution Center. Her skill set and broad range of experiences directly translated to the requirements of the Warehouse Supervisor position. In contrast, Mr. Pawelcik began working at Safeway in 1990, mainly unloading trucks and operating forklifts in the Distribution Center. Mr. King had been with Safeway since 1992, holding a position in the Grocery Warehouse (also part of the Distribution Center).1 Thus, he was only familiar with one segment of the expansive Distribution Center. Mr. Thomas, who worked in the milk plant across the street and never worked in the Warehouse, had only 1½ years of total service with Safeway when the company

The Distribution Center, located along Interstate 70 near the eastern edge of the Denver Metropolitan Area, is huge. The Distribution Center contains five distinct areas or warehouses. The area in which Ms. Towers works is the Produce Warehouse.

1

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awarded him the position. (Ex. O, Thomas Resume) Thus, he possessed the least experience and was the least familiar with Safeway's business plan and operations. F. Safeway Favored Men by Soliciting Them and Waiving Computer Requirements Mr. Grambusch solicited male employees to apply for the Warehouse Supervisor position. Mr. Grambusch did not solicit Ms. Towers for the position. In fact, Ms. Towers had to alert him that she had applied, and requested that he consider interviewing her. Mr. Grambusch treated males more favorably than Ms. Towers in this regard. Safeway's reason for denying her the promotion was pretext for gender discrimination. The evidence demonstrates that Ms. Towers was qualified for the position and that Safeway took an adverse employment action against Ms. Towers because she was female. Safeway's requirements for Ms. Towers were higher and more stringent than those for her male counterparts. Safeway management previously told Ms. Towers that in order to be promoted, she needed to gain computer experience. (Ex. 1, Towers Dep. at 139:12-140:3) In response, Ms. Towers took several computer courses, for which she received all "A's." (Ex. 22, Towers Transcript) No male employees were required to take college computer courses as a prerequisite for being considered for management or supervisory positions. (Ex. 10, King Training Record; Ex. 11, Pawelcik Training Record; Ex. 12, Thomas Training Record) Instead, Mr. King received on-the-job computer training. (Ex. 7, King Dep. at 8:11-23, 49:18-50:9) Mr. Pawelcik never had any computer training. (Ex. 8, Pawelcik Dep. at 6:4-6) Safeway's conduct also establishes a pattern and practice of discrimination. In addition to its treatment of Ms. Towers, the company strongly favors male employees overall. Of the thirty-seven Warehouse Supervisor positions that exist, men hold thirty-four. (Ex. 13, White Dep. at 122:7-12)

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Ms. Towers suffered an adverse employment action when Safeway denied her a promotion to the Warehouse Supervisor position, a responsibility for which she was qualified. She has lost all increased income accompanying the Warehouse Supervisor position. Ms.

Towers makes a claim for lost wages and benefits due to being denied the promotion to Warehouse Supervisor to date and into the future. She claims attorney fees, costs including expert witness fees, and pretrial interest. Ms. Towers requests that the Court order Safeway to promote her to a supervisory position, making her whole for all the earnings she would have received but for Safeway's discriminatory treatment, including, but not limited to, wages, bonuses and lost benefits. She also requests all compensatory and punitive damages for the injuries she suffered as a result of Safeway's intentional violation of Title VII, as well as all costs and attorneys fees provided by Title VII.

III.

DIRECT EVIDENCE OF MR. GRAMBUSCH'S GENDER BIAS TOWARD MS. TOWERS

A.

Mr. Grambusch Thinks Being a Female Is a Weakness For a Warehouse Supervisor Mr. Grambusch, the interviewer who ultimately decided to not promote Towers (Ex. 14;

Mercer Dep. at 22:20-25), harbored a discriminatory bias against a female as a supervisor at Safeway. Prior to entering the interviewing process, Mr. Grambusch, who ultimately made the decision on who would become Warehouse Supervisors, believed that, all things equal, females are not as qualified as males to be in the Warehouse Supervisor position at Safeway. "Confidence" is one of the primary traits that Mr. Grambusch stated he looks for in a candidate for the Warehouse Supervisor position. (Ex. 14, Grambusch Dep. 73:10-13). He believes that

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someone with confidence is someone who does not have weaknesses that are exploited by Safeway employees. (Ex. 14, Grambusch Dep. 73:14-74:5). When asked under oath to describe an example of employees taking advantage of a supervisor's weaknesses, Mr. Grambusch pointed to only one example. (Ex. 14, Grambusch Dep. 74:6-75:4). This one example of a Warehouse Supervisor's weakness described by Mr. Grambusch is an example of a supervisor having this weakness for one reason only: because the supervisor is a female. The exact text of Mr. Grambusch's example of a supervisor weakness that can be exploited by employees reads: Q. supervisor? A. Weaknesses. They find weaknesses. Just like a kid, they'll test you and Okay. How would a person who is a Teamster take advantage of a

test you and expose your weaknesses and exploit that. Q. A. Can you think of any specific situation of that occurring? Yeah. It happened just the other night with one of our female ­ new

female supervisors. They all went in the men's locker room, and they took advantage of her in that situation. And she didn't do anything about it till the following morning. Q. A. guess. Q. A. Q. What were they trying to do? Avoid work. And what was her response? How did they take advantage of her? They knew she wouldn't go in the men's bathroom -- locker room, I

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A.

Well, she was frustrated and she -- she wasn't going to go in there to get

them. She ended up resolving the problem, but that's -- you asked for a situation. That's the first thing that popped into my mind. Q. Do you feel that because she was a female, she handled that situation

differently than a male would? A. Q. A. Well, that's obvious. Okay. So tell me. Well, a male would walk in the room.

(Ex. 14, Grambusch Dep. 74:1-75:4). Mr. Grambusch described a female treating a similar situation differently than a male employee as a weakness on the part of a female supervisor, a weakness that she has for no reason other than the fact that she is a female. When asked to describe a situation where Safeway Warehouse employees find a supervisor's weaknesses and exploit them, Mr. Grambusch stated that "the first thing that popped into [his] mind" was this example. Thus, the first thing that Mr. Grambusch associates with a bad candidate for a Warehouse supervisory position is a candidate being a female, someone who he believes has weaknesses that can be exploited by Safeway employees, someone who does not fulfill his subjective standard of "confidence" that he looks for in an interview for a supervisory position. Mr. Grambusch entered the interview process with a discriminatory bias against woman supervisors because he prefers supervisors who show "confidence" and do not have weaknesses that can be exploited by Safeway Warehouse Employees. Because Mr. Grambusch sees female supervisors as having inherent "weaknesses" for no reason other than the fact that they are

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female, Mr. Grambusch enters the decision process for Supervisors of Safeway Warehouse employees with the discriminatory predisposition that males are better supervisors than females. This discriminatory predisposition affects Mr. Grambusch's opinions and views of each candidate in the interview process, leading him to subjectively decide that interviews with male applicants are better interviews than those with female applicants. Mr. Grambusch also views females as being less qualified than males because females are stereotypically more emotional than males. He stated that he was disappointed by Ms. Towers' interview because she mentioned that "she cried all the way home" one day after work. (Ex. 14, Grambusch Dep. 108:18-25). He stated that the supervisor position is a struggle every day and being emotional by "cr[ying] all the way home" was a negative aspect of her interview. Id. Mr. Grambusch was disappointed with Ms. Towers' interview because she was "weak" and had "emotional issues." (Ex. 14, Grambusch Dep. 111:5-10). These justifications for his disappointment with Ms. Towers' interview had nothing to do with how she actually would perform her job as a supervisor at work. Ms. Towers never had a chance to interview well because Mr. Grambusch viewed her as being "weak" and having "emotional issues" because she is a female and not a male. B. Although Ms. Towers Met All the Job Posting Qualifications, Mr. White Did Not Initially Schedule An Interview With Her Although Mr. White stated that Ms. Towers was qualified for the position, Mr. White did not initially offer her an interview. The plaintiff was not on Mr. White's initial interview list. (Ex. 14, Grambusch Dep. at 57:20 ­ 58:1). He did not consider her even though she met all of the required experiences of the job posting (Ex. 13, White Dep. at 53:24 ­ 54:2). When Mr.

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White was asked if she met all of the qualifications in the job posting, Mr. White replied by pointing out that Ms. Towers did not meet the "preferred qualification" of having 2-4 years of college. (Ex. 13, White Dep. at 54:4-17; Ex. D, Job Posting). Despite not meeting the same "preferred qualification," Mr. King and Mr. Pawelcik were selected to be interviewed and were both chosen by the all-male panel to be promoted to the Warehouse Supervisor position. (Ex. H, Towers Resume; Ex. P, King Resume; Ex. Q, Pawelcik Resume). In a further attempt to discredit Ms. Towers' qualifications for the supervisor position, when Mr. White was asked in his deposition if Ms. Towers met the requirements for the Warehouse Supervisor position, Mr. White replied: A: She met most of the minimal qualification. It also asked for management experience, she did not have that." (Ex. 13, White Dep. at 53:5-7). Mr. White fabricated this qualification; it is not in the job opportunity posting (Ex. D, Job Posting). Later in his deposition, Mr. White changed his answer, as follows: Q: Management experience is not listed anywhere under the qualifications, is it? A: No -- want to read it to make sure -- no. (Ex. 13, White Dep. at 104:7-9). In Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-49 (2000), the Court found that, where an employer gives a false explanation for an employee's termination, it is "permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Certainly, if it is permissible to infer discrimination from the fact that an employer has lied, then the misrepresentation of the reasons for promotion in this case

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supports this Court in finding that there is a question of fact such that the jury must decide the case. Ms. Towers, a woman, was not selected for an interview by Mr. White despite being more qualified than the males who were chosen for the position. As stated above, Mr. White created separate qualifications, such as "management experience," for Ms. Towers to meet when it came to the job posting. (Ex. 13, White Dep. at 53:5-7; Ex. D, Job Posting) Mr. White did not ensure that each candidate had all of the qualifications contained in the job posting before deciding to interview each candidate. (Ex. 13, White Dep. at 104:24 ­ 105:15) For example, when it came to one of the qualifications on the job posting, knowledge of OSHA safety regulations, Mr. White did not check with each candidate who did not have it listed on their resume to see if the candidate met this qualification before deciding to interview the candidate. (Ex. 13, White Dep. at 104:15-20). Mr. White did not check each candidate to be interviewed with the job qualifications despite asserting that "you want to interview everybody that meets those qualifications, that has those qualifications and above." (Ex. 13, White Dep. at 48:14-16) Had Mr. White been truthful in this statement, Mr. White would have compared each resume/candidate with the job qualifications to ensure that he interviewed only those candidates who met the job qualifications. In fact, when it came to the "knowledge of OSHA" requirement, Ms. Towers listed this on her resume while Mr. King, Mr. Pawelcik, and Mr. Thomas did not meet this qualification. (Ex. H, Towers Resume; Ex. P, King Resume; Ex. Q, Pawelcik Resume; Ex. O, Thomas Resume) While screening the candidates to be interviewed, Mr. White did not review candidates' personnel files or disciplinary records. (Ex. 13, White Dep. at 69:15-25) Had Mr. White done this, he would have learned that Mr. Pawelcik had negative reviews before being

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promoted to Supervisor. (Ex. 8, Pawelcik Dep. at 47:6-48:12) Mr. White clearly favored male applicants when deciding whom to interview for the Warehouse Supervisor position. Had he not favored the males, an objective comparison of the job posting qualifications would have certainly led Ms. Towers to be on the initial interview list.

IV.

MS. TOWERS MEETS THE BURDEN TO ESTABLISH A PRIMA FACIE CASE OF DISCRIMINATION

The burden of establishing a prima facie case of disparate treatment is not an "onerous" one. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). "In order to

establish a prima facie claim of discriminatory failure to promote under Title VII, [plaintiff] was required to `show that there were promotional opportunities available that were filled by males, that she was qualified for promotion, and that despite her qualifications she was not promoted.'" Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1362 (10th Cir. 1997) (quoting from Nulf v. International Paper Co., 656 F.2d 553, 558 (10th Cir. 1981)). See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, (1973). Ms. Towers has established a prima facie case. First, she is a female in a protected class under Title VII. (Final Pretrial Order at 9-10, Stipulations 1, 3 and 4) Second, there were promotional opportunities available when she applied for one of the three Warehouse Supervisor positions in July of 2002. (Id. at 10, Stipulations 7 and 8) Third, the promotional opportunities were filled by three males: Richard Pawelcik, Troy Thomas, and Victor King. (Id. at 10, Stipulation 9; and Ex. 1, Towers Dep. at 70:7-15) Fourth, Towers was qualified for the

promotion as evidenced by her own deposition, sworn interrogatory response and resume in

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which she stated that she fulfilled all of the job requirements from the job posting. (Ex. 1, Towers Dep. at 45:7-48:13; Ex. 2, Towers' Sworn Response to Interrogatory No. 4(c) at 10; Ex. H, Towers' Resume) Lastly, despite her qualifications, she was not promoted; Safeway filled all three Warehouse Supervisor positions with males. Safeway's stated reasons are mere pretext;

Ms. Towers was not promoted because she is a woman.

V.

MS. TOWERS CAN ESTABLISH THAT DEFENDANT'S ARTICULATED REASON FOR NOT PROMOTING MS. TOWERS IS PRETEXTUAL

A.

A Lead Position Was Not Required For the Job Position, Or of the Male Applicants, But Was Required of Ms. Towers Defendant Safeway argues that Ms. Towers lacked leadership experience and this was a

reason why she was denied the Warehouse Supervisor position in July of 2002. (Def. Brief at 15-16) Defendant's continuing assertion that management experience was a prerequisite in order to be a Warehouse Supervisor is inconsistent, implausible, and pretextual. Neither leadership nor management experience is listed on the job posting as a qualification, preferred or desired, for the Warehouse Supervisor position. (Ex. D, Job Posting) Mr. White, Mr. Rodriguez, and Mr. Mercer all admit in their depositions that it was not necessary for someone to be a lead before becoming a Warehouse Supervisor. (Ex. 13, White Dep. at 104:7-9; Ex. 15, Rodriguez Dep. at 128:9-13; Ex. 16, Mercer Dep. at 61:15-17) In fact, Mr. Pawelcik had no lead experience, but was still chosen for the Supervisor position. (Ex. Q, Pawelcik Resume) Defendants give Mr. Pawelcik "credit" as a leader for volunteering in a reracking project. In comparison, Ms. Towers had much more management experience. She trained Safeway employees for more than 20 years, including some who went on to become

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Warehouse Supervisors, demonstrating an enduring ability to lead others. (Def. Brief at 17; Ex. 1, Towers Dep. at 80:5-16) The contrary statements of her co-workers, who witnessed Ms. Towers performing supervisory type work, demonstrate the inconsistencies in Safeway's assertion that Ms. Towers had no supervisory experience. (See Ex. 3, Adler Aff.; Ex. 4, Grove Aff.; Ex. 5, Talmadge Aff.; Ex. 6, Siegworth Aff.; Ex. 23, Richardson Aff.) From their firsthand observations of Ms. Towers in a supervisory role, co-workers also express that Ms. Towers was a leader among her co-workers and would have made a great supervisor and boss. (See Ex. 3, Adler Aff.; Ex. 4, Grove Aff.; Ex. 5, Talmadge Aff.; Ex. 17, Peterson Aff.; Ex. 23, Richardson Aff.) Leadership was not listed as a required prerequisite or qualification for the Warehouse Supervisor position, and furthermore, once it hired Warehouse Supervisors, Safeway trained supervisors to equip them with the necessary leadership/management skills needed for the job. Mr. Pawelcik attended front-line leadership training after he was promoted to the Warehouse Supervisor position. (Ex. 8, Pawelcik Dep. at 41:1-11). The front-line leadership training lasted three days and ranged from how to manage people effectively to diversity training. Id. Mr. King also received a similar three-day training class once he because a supervisor. (Ex. 7, King Dep. at 50:19-51:25) These leadership classes that Safeway has its employees complete once they are hired as supervisors demonstrate that the leadership requirement for Ms. Towers was pretext for discrimination. Even Mr. Grambusch states in his deposition that he did not think it was necessary for a candidate to have formal management experience. (Ex. 14, Grambusch Dep. at 40:11-21) There is additional, direct evidence of disparate treatment. Although Mr. Grambusch stated that he did

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not think that it was necessary for a supervisor to be a lead person first, he is adamant that Ms. Towers needed to be a lead person before becoming a supervisor. (Ex. 14, Grambusch Dep. at 230:5-10) After the July 2002 interviews, Mr. Grambusch's offer to attempt to obtain Ms. Towers a lead position was disingenuous. There were no lead positions in Ms. Towers' department, and Mr. Grambusch's promise to Ms. Towers was impossible due to the union contract. (Ex. 15, Rodriguez Dep. at 124: 7-16) In fact, Mr. Grambusch never even inquired of the union that they consider allowing Ms. Towers to be a lead. (Ex. 15, Rodriguez Dep. at 125: 12-16) B. Ms. Towers' Work Record Shows That She Has a Commitment to Safeway Another inconsistency is Defendant's argument that Ms. Towers asking for a pay raise evidences a lack of commitment. (Defendant's Brief at 9) Despite Ms. Towers being told that a pay raise would not occur in the event of obtaining the promotion, Mr. King and Mr. Pawelcik admit that they received pay raises when promoted to the Warehouse Supervisor position. (Ex. 7, King Dep. at 86:9-87:21; Ex. 8, Pawelcik Dep. at 38:10-39:22) In addition, after twenty-four years of service to Safeway, one could not reasonably question Ms. Towers' commitment to the company. A female, who asked for a pay raise in the event that she received the promotion, was told that her request could not be granted, while male applicants who received the positions did indeed receive pay raises of up to 18%. Ms. Towers received disparate treatment when compared to male applicants and defendant's assertion that Ms. Towers' inquiry into pay represents questionable commitment demonstrates pretext.

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C.

The Extreme Subjective Evaluation of Ms. Towers During the Interview Process and Poor Documentation Show Pretext The job posting for the Warehouse Supervisor position had objective criteria to determine

who qualified for the position. In the screening process to determine who would be interviewed and during the interview process, Safeway did not follow the objective criteria in the job posting to determine who was best qualified for the position. Willie White, the Human Resources manager who decided which candidates would be interviewed, did not match up the resumes who applied for interviews with the qualifications listed in the job posting to determine which candidates best fit the job posting. (Ex. 13, White Dep. at 105:8-15) Other interviewers, Mr. Rodriguez and Mr. Mercer, also did not match up the candidates' resumes with the qualifications in the job posting. (Ex. 15, Rodriguez Dep. at 37:7-14) (Ex. 16, Mercer Dep. at 17:13-25) Mr. Grambusch admits that an ideal candidate would fit all of the qualifications listed in the job posting. He admits this in his deposition; the exact text is as follows: Q: ...what qualities would an ideal candidate have for you to select him or her to be a supervisor? A: So if - - you're asking, if we didn't have this, what would I look for? (Ex. 14, Grambusch Dep. at 43:14-18) Mr. Grambusch is referring to the job opportunity posting when he states "if we didn't have this." By answering in this way, Mr. Grambusch is stating that an ideal candidate is someone who fits the requirements of the job opportunity. Under this line of reasoning, Mr. Grambusch is stating that someone who best fits the job opportunity posting would be someone who is an ideal candidate for the Warehouse Supervisory position.

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The interviewing panel failed to adhere to any objective or quantifying standards to rate each candidate or compare them; all of the evaluations were done subjectively. Mr. White, the Human Resources manager who controlled the interview process, admits that there is no standardized system for the interviewers to rate people in order to help make their selection. (Ex. 13, White Dep. at 61:19-62:9) Mr. White said: Q: At that time with respect to this interview, was there any discussion

amongst the four of you, that is, Mr. Grambusch, Mr. Rodriguez, Mr. Mercer and yourself about what the criteria for the interview process would be? A: Q: A: Q: No. Usually I get ­ no. There wasn't any, correct? No. At that time, did there exist in HR as far as you know any written criteria

that could have been used that day and just wasn't being used? A: Q: No. Was there any discussion whatsoever about any measurement standard

that would be used in evaluating the interview responses of the applicants? A: No.

(Ex. 13, White Dep. at 61:19-62:9) Ms. Towers was not given a full and fair evaluation by the four male interviewers to show that she was one of the best three candidates for the Warehouse Supervisor position. During her interview, all four interviewers claim to have taken notes of all answers to her questions. Of the four interviewers, there are only copies of interview notes from three because

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Mr. Mercer has destroyed his interview notes. (Ex. 16, Mercer Dep. at 18:11--20:17). The thoroughness of notes taken by the interviewers varied as some interviewers took more notes on some questions while others took substantially less notes, wrote incoherent notes, or took no notes at all. (Ex. K, Interview Notes from Ms. Towers' interview) Safeway admits that the

interviewers did not write down everything in their notes that an interviewee said in the interview. (Ex. 21, Plaintiff's Request for Admission and Defendant's Response, #11, #13) When it came to the notes of Ms. Towers' interview taken by Safeway's panel, it is clear that the interviewers missed many of her answers and/or chose not to coherently write down many of her answers. One example that evidences Safeway's bias against Ms. Towers is the notes taken by the interviewers for the thirteenth question listed at the top of the fourth page of the notes. The question was: "How do you determine your priorities?" Mr. White wrote down Ms. Towers' response as: "Family, paying bills, look at tasks, determine what's 1st, do by demand." (Ex. K, White Interview Notes page 5 of 17, Bates stamp S00143). Ms. Towers obviously gave a very thoughtful and value orientated answer, which also included her practical, work-related process. She related her family as a top priority, followed by finances and other determined priorities. She explained that she processed priorities by demand in light of her values. Id. Even though she spoke the words, Mr. Grambusch wrote only the following in his notes: "Demand. By." (Ex. K, Grambusch's interview notes, Bates stamp S00132, Page 10 of 17). These notes are incoherent. Mr. Rodriguez wrote the following: "Take care of yourself. By demm(?)d [sic] (Ex. K, Rodriguez Interview Notes, Bates stamp S00138, Page 16 of 17)

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The differences in thoroughness of the written notes between Mr. White's notes and the notes (or lack thereof) by Mr. Grambusch and Mr. Rodriguez show that it didn't matter what Ms. Towers said in her interview. Mr. Grambusch and Mr. Rodriguez did not document her full answers and did not bother to write them down. Mr. Grambusch and Mr. Rodriguez were so biased against Ms. Towers that they did not even write down her answers in understandable language. Mr. Grambusch wrote down the unintelligible "demand. by." and Mr. Rodriguez did even not spell "demand" correctly. Since Safeway chose to document its decision process in this untrained and haphazard manner, it must live with the consequences. These notes allow an inference that the managers had a prejudice against Ms. Towers. Mr. White, the only interviewer who wrote down more than a few words, discredited her answers by rating the above quoted answer as at best "fair." (Ex. 13, White Dep. at 86:19-87:3) Ms. Towers answered the question as to how she determines her priorities by first listing her priorities and then stating that she determines what is first by demand. Mr. White refused to rate this answer as a good answer despite her listing family as her first priority and then stating that she determines her priority by doing what is first by demand. Clearly Ms. Towers' answer to the question is reasonable and thoughtful, if not excellent. Safeway's reaction implies a bias against a woman wanting to perform as a supervisor who rates her family over work. Mr. White's attempt to discredit Ms. Towers' answer is untruthful and "unworthy of credence." Reeves, 530 U.S. at 143 (quoting from Texas Dep't of Community Affairs, 450 U.S. at 256). For Mr. White to allege that her answer was not good demonstrates a predetermined negative attitude by him towards Ms. Towers. It was a negative attitude in which Mr. White could not acknowledge Ms. Towers' good answers when he heard them. Mr. White's disparity

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in evaluating Ms. Towers' answers and Mr. Grambusch's and Mr. Rodriguez' lack of interest in Ms. Towers' answers reveal the interviewers' true feelings towards Ms. Towers during the interview process. The true feelings of the male interviewers concerning Ms. Towers were that she could not say anything in the interview process to prove to them that she would be a good Warehouse Supervisor candidate. Due to the male interviewers' attitudes towards Ms. Towers, she was never given a full and fair opportunity because of her gender to be promoted to the Warehouse Supervisor position. In contrast to Ms. Towers' answer to the "how do you determine your priorities" question, the three successful candidates' answers were clearly not better than those given by Ms. Towers. According to Mr. Grambusch's notes, Mr. King answered: "I note the items to be done. if he doesn't prioritize, I will do the priority. But get it all Done,"; Mr. Pawelcik did not have an answer; and Mr. Thomas answered: "Notes + planner ­ Try to improve Time Management Skills." (Ex. 18, Grambusch Notes of King's Interview at 5; Ex. 19, Grambusch Notes of Pawelcik's Interview at 5; Ex. 20, Grambusch Notes of Thomas Interview at 5). None of these answers can be viewed by a reasonable person as being as good as Ms. Towers' answer which stated that she lists family as a first priority and then prioritizes according to demand. (Ex. K, White Interview Notes at page 5 of 17, Bates stamp S00143). Mr. Grambusch's incoherent notes for the other interviewees is typical of the interview process in that it demonstrates that the interviewers did not take the interviewing or the interview note-taking seriously. The interviewers were going to decide which males would be best for the Warehouse Supervisor positions whether a female interviewee gave a good interview or not.

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D.

Pretext May Be Established Through a Number of Different Methods In its brief in support of a Motion for Summary Judgment, Safeway presented to the

Court a United States District Court of New Jersey opinion, Johnson v. Penske Truck Leasing Co., 949 F. Supp. 1153, 1176 (D.N.J. 1996). The passage that Safeway cites is not persuasive authority. The passage is merely dicta and does not go towards the reasons why the Court ruled in favor of the employer. The court ultimately ruled in favor of the employer because the plaintiff did "not demonstrate that discrimination was more likely than not a motivating factor in the [employer's] decision, nor does it cast doubt upon [employer's] legitimate, nondiscriminatory reason to defeat summary judgment." Id. Here, Ms. Towers can and has proven that discrimination was more likely a motivating factor in Safeway's decision. Furthermore,

Ms. Towers has cast substantial doubts upon Safeway's proffered non-discriminatory reasons not to promote her. Additionally, the passage quoted by Safeway is misleading by leaving out an essential phrase. Safeway's quote read: "The importance of the interview is likely the

determining factor in awarding a position. The importance of the interview is likely heightened in the placement of management positions ..." (Defendant's Brief at 17). Safeway should have included the full text of the above quoted sentence by including at the end of the sentence: " requiring skills in the sales area." Johnson, 949 F. Supp. at 1176. This last phrase clearly shows that the New Jersey District Court's dicta portion of its opinion only applied to interviewees for management positions in the sales area; it does not apply to Warehouse Supervisor positions who supervise Teamsters.

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Ms. Towers was not given a full, fair and adequate opportunity to provide a good interview for the three males who interviewed her for the Warehouse supervisor position. On average, each interview lasted 30-45 minutes. (Ex. 13, White Dep. at 70:13-16). Ms. Towers' interview only lasted fifteen minutes. (Ex. 1, Towers Dep. at 93:12-13). Safeway alleges that Ms. Towers did not interview well; however, Mr. Grambusch admits that many of the questions asked in the interview were geared towards people with management experience. (Ex. 14, Grambusch Dep. at 96:21 ­ 97:8). Since the questions were structured for those with

management experience, Mr. Grambusch admits that he would expect someone in Ms. Towers' position to "struggle with answers." (Ex. 14, Grambusch Dep. at 97:5-8). Given Mr. Grambusch's knowledge that someone in Ms. Towers' experience would struggle with the interview questions, Safeway never gave Ms. Towers a full, fair adequate opportunity to perform well in her interview. The interview process was entirely subjective. There were no objective criteria or

ranking system to rate each candidate's interview and then compare scores in order to determine which candidates performed best. (Ex. 13, White Dep. at 61:19-62:9; Ex. 15, Rodriguez Dep. at 117:20-118:18; Ex. 16, Mercer Dep. at 18:11-19:7) Mr. Grambusch ultimately decided who awarded the Warehouse Supervisor position. During the interview process Mr. Grambusch evaluated the candidates in a very subjective manner: he would "watch how the person handles themselves," (Ex. 14, Grambusch Dep. at 77:19-22); he "just listened to the answers and how they handled themselves.," (Ex. 14, Grambusch Dep. at 85:24-25); and he stated that "[i]t's how they handle the question and how they respond to the question means more to me than the exact fact of the answer to the question or the content." (Ex. 14, Grambusch Dep. at 129:12-14).

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The most glaring example of Mr. Grambusch's subjective evaluations of the interviewees was his emphasis on the ideal candidate as someone who displays "confidence." "Confidence" is one of the primary traits that Mr. Grambusch stated he looks for in a candidate for the Warehouse Supervisor position. (Ex. 14, Grambusch Dep. at 73:10-13). Mr. Grambusch admits that confidence is a subjective standard and believes that confidence is "the way they handle themselves in meeting and with employee relations. It's confident [sic] about their ability to meet challenges. You know, where there's a will, there's a way, the can do attitude. That's all signs of confidence." (Ex. 14, Grambusch Dep. at 166:7-8, 166:1-6). E. Safeway's Reasons Not to Select Ms. Towers Are Replete With Inconsistencies_and Contradictions Mr. White said that Ms. Towers had all of the required experiences of the posting. (Ex. 13, White Dep. at 53:24­54:2) Mr. White stated that "...you want to interview everybody that meets those qualifications, that has those qualifications above." (Ex. 13, White Dep. at 48:1418) Mr. Mercer contradicted this statement by stating that Ms. Towers did not stack up well against the qualifications on the job posting, based on his experience. (Ex. 16, Mercer Dep. at 42:23­43:3) Mr. Mercer did not know Ms. Towers' qualifications. (Ex. 16, Mercer Dep. at 51:2-5) Mr. Mercer had no experience on interviewing panels, so that is a false statement. (Ex. 16, Mercer Dep. at 12:24­13:1) Ms. Towers was not awarded the Warehouse Supervisor job by Mr. Grambusch, the man who had ultimate authority to select who he thought was most qualified for the position. When deciding who he thought was the best candidate, "confidence" was one of the most important factors by which Mr. Grambusch evaluated candidates. (Ex. 14, Grambusch Dep. at 73:10-13). Mr. Grambusch determined that Ms. Towers "didn't display the confidence and the commitment and the experience in taking this type of role." (Ex. 14, Grambusch Dep. at 110:1-4). While Mr. Grambusch alleges that Ms. Towers did not display the type of "confidence" that he is looking for in a Warehouse Supervisor, Mr. Grambusch awarded Victor King a Warehouse Supervisor

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position. When asked to describe Victor King during the interview process, Mr. Grambusch stated: A: I remember him being nervous (Ex. 14, Grambusch Dep. at 139:12) A: He was nervous (Ex. 14, Grambusch Dep. at 139:13) A: he was noticeably nervous (Ex. 14, Grambusch Dep. at 139:14-15) A: He's kind of a quiet guy. (Ex. 14, Grambusch Dep. at 139:15) A: he was probably capable (Ex. 14, Grambusch Dep. at 141:5) These statements certainly do not describe a candidate who shows "confidence." Additionally, Mr. Grambusch stated that he looks for a decisive candidate, someone who makes a decision and lives with it. (Ex. 14, Grambusch Dep. at 165:11-22). Mr. Grambusch stated that during Mr. King's interview "he probably questioned himself maybe a time or two too many times instead of first instinct. (Ex. 14, Grambusch Dep. at 141:6-7) Had Ms. Towers made the same remark, Mr. Grambusch would have used it against her to demonstrate why she, a female, was not qualified for the Warehouse Supervisor position. None of the three warehouse supervisors hired by Safeway (King, Pawelcik, Thomas) received entry-level wage of the warehouse supervisor pay scale. (Ex. 7, King Dep. at 86:987:24; Ex. 8, Pawelcik Dep. at 38:10-39:22; and Ex. 14, Grambusch Dep. at 53:11-54:1) When Ms. Towers talked to her supervisor Mr. Rodriguez, a member of the interviewing panel, Mr. Rodriguez told Ms. Towers that if she was hired, she would have to take the job at the entry level wage of the warehouse supervisor, pay scale. (Ex. 15, Rodriguez Dep. at 49:19-22) In regard to what Safeway alleges are poor answers to different questions, the interviewers allowed the "poor answers" to affect Ms. Towers negatively in her interview process; at the same time the interviewers did not penalize the male interviewers for similar poor answers. When Ms. Towers was asked by the interview panel what aspect of the job would be the least favorable, she responded by saying "peoples' negatism." (Ex. 1, Towers Dep. at 87:711). When faced with the same question, Mr. Thomas answered with "difficult employees."

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(Ex. 15, Rodriguez Dep. at 110:24­111:2) Although negative employees are usually difficult employees, meaning that both Ms. Towers' and Mr. Thomas' answers were almost identical, Mr. Rodriguez rated Ms. Towers' answer as "very poor" and Mr. Thomas' answer as okay. (Ex. 15, Rodriguez Dep. at 111:9-14) When Mr. Rodriguez was asked what he thought of Ms. Towers when she did not answer a question during the interview, he "would look at it as a negative because she was not prepared to answer the question. (Ex. 15, Rodriguez Dep. at 92:10-12). When asked what he thought of Mr. Thomas not answering a question at the interview, Mr. Rodriguez would not say that no answer was a poor answer. (Ex. 15, Rodriguez Dep. at 103:23 ­ 104:6) Safeway claims Ms. Towers' answer referencing "lumpers" (contract unloaders) is off the mark. (Defendant's Brief at 8) Safeway misrepresents the essence of the answer. In her deposition, Ms. Towers repeated her answer. It is complete with a statement of why her suggestion would benefit Safeway. (Ex. 1, Towers Dep. at 88:7-25) Ms. Towers stated that the current procedure "...causes a lot of work for the loaders...and there's a lot of pallets, unnecessary pallets in the trailers when we have to load them." (Ex. 1, Towers Dep. at 88:7-25) The trailers are loaded by Safeway workers like Ms. Towers. Thus, she said "when we have to load them." Safeway blatantly tries to minimize every answer Ms. Towers gave and Safeway misrepresents her answers.

VI. A.

LEGAL ARGUMENT

Summary Judgment Standards

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The purpose of summary judgment is to assess whether trial is necessary. See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Fed. R. Civ. P. 56(c) provides that summary judgment shall only be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The non-moving party has the burden of showing that issues of