Free Brief in Support of 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.

MEMORANDUM 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.

NATURE OF THE ACTION ......................................................................... 1 STATEMENT OF UNDISPUTED FACTS ...................................................... 1 A. B. C. D. Towers' Employment History with Safeway......................................... 1 Towers' Application for the Warehouse Supervisor Position .................. 2 The Interview Process ....................................................................... 4 The Promotion Decision .................................................................... 5

III.

ARGUMENT ............................................................................................ 10 A. B. Summary Judgment Standards .......................................................... 10 Towers Cannot Prove That Safeway's Profferred Reasons Are Pretextual ...................................................................................... 11

IV.

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

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I.

NATURE OF THE ACTION Plaintiff Kathleen Towers, a current Safeway employee, brings a claim for sex

discrimination against Safeway under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. Towers' claim is based on a single employment action: Safeway's decision not to promote her to a warehouse supervisor position in July 2002. For the reasons set forth below, there are no issues of material fact and Safeway is entitled to judgment as a matter of law on Towers' claim. II. STATEMENT OF UNDISPUTED FACTS A. Towers' Employment History with Safeway

Towers began her employment with Safeway in 1978 as an order selector in the Produce department at Safeway's Distribution Center (hereafter the "warehouse"). 1 Deposition of Kathleen Towers ("Towers Depo.") at 10:7 - 13; 11:15, Tab A to Appendix. 2 Towers, who is a member of a bargaining unit, continues to hold the position of order selector in the Produce department, although her seniority has allowed her to bid on different job duties within that job classification. Towers Depo. 13:2 - 17; 17:23-25; Order Selector Job Description, Tab B hereto. Towers initially filled orders for Safeway's retail stores for approximately 15 years. Towers Depo. 14:6- 13; 16:3- 4. Her primary job duty was to pull boxes of items listed on invoices within the prescribed

1

The Produce department is one of six departments located at the warehouse. The other departments include Meat, Variety, Grocery, Miscellaneous Perishable (also known as "Cheese"), and Frozen. Towers Depo. 24:19-22.
2

Cited portions of depositions and deposition exhibits, as well as any affidavits referred to in this Brief, are included in an Appendix in Support of Motion for Summary Judgment filed with this Motion and Brief.

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time limits. Id. Towers subsequently worked as an inspector for approximately 16 years. Towers Depo. 16:3-4. As an inspector, she was responsible for inspecting produce to ensure that it met U.S.D.A. standards prior to being delivered to Safeway's retail stores. Towers Depo. 15:11-19. Presently, Towers' primary responsibility is to move merchandise off the floor with a forklift and stock it in its proper location. Towers Depo. 14:1- 3. She has performed that function for approximately two years. Towers Depo. 16:15- 17:1. Towers reports to two warehouse supervisors who, in turn, report to a warehouse manager and, ultimately, the warehouse director. Towers Depo. 23:3- 24:13. Towers has reported to various supervisors during the course of her employment at Safeway. Towers Depo. 18:6- 19:19. At present, Towers' direct supervisors in the Produce department are Gary Martinez and Chris Albaum. Towers Depo. 20:22- 24. The Warehouse Manager in charge of the Produce department is Rick Rodriguez. Towers Depo. 23:20- 24:18. The Warehouse Director is Don Grambusch. Towers Depo. 23:1719. B. Towers' Application for the Warehouse Supervisor Position

In July 2002, Safeway posted a "job opportunity" bulletin for three warehouse supervisor positions in the Cheese, Meat, and Grocery warehouses. Towers Depo. 48:16-49:4; Deposition of Rick Rodriguez 28:14- 25, Tab C hereto; Job Posting, Tab D hereto. The preferred qualifications for the position included a high school diploma with 2- 4 years of college preferred; a minimum of 5 years of distribution, production, or warehouse experience; knowledge of OSHA safety regulations; experience using the

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warehouse management system to control inventories; strong interpersonal and communication skills; ability to chart, forecast, plan, manage, and measure day- to- day operations; ability to interact with management in furtherance of company goals; initiative, customer service skills and resourcefulness; and working knowledge of Microsoft Word and Excel. Tab D hereto. The posted salary range for the warehouse supervisor position was $38,200 to $49,700 -- commensurate with experience and qualifications. Id. Towers learned of the open warehouse supervisory position through the job opportunity bulletin, which she saw posted in the lunchroom. Towers Depo. 45:6- 8. After she reviewed the bulletin, Towers contacted Don Grambusch (Warehouse Director) to request an interview. Towers Depo. 51:22-52:3. It was the first time that Towers had informed Mr. Grambusch that she was interested in a supervisory position. Towers Depo. 53:1- 4. Grambusch granted Towers' request for an interview. Towers Depo. 53:19- 54:1. Safeway ultimately selected six candidates to interview for the position. Deposition of William White 109:5- 8, Tab E hereto. Five of the candidates were male, and one, Towers, was female. Deposition of Don Grambusch at 224:19- 225:11, Tab F hereto; Deposition of Mark Mercer at 34:23- 25, Tab G hereto. Towers has a high school diploma, but no graduate degree. Towers Depo. 7:1417; 8:16- 17. Towers has never served in a leadership or supervisory capacity. Towers Depo. 73:1 -6; Towers Resume, Tab H hereto. Towers' salary at the time of her application was approximately $45,000. Towers Depo. 49:16- 18.

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C.

The Interview Process

The interviews for the warehouse supervisor positions took place in July 2002 before a panel of four interviewers. Towers Depo. 50:8-13. The interviewers were Don Grambusch, Rick Rodriguez (Warehouse Manager), Willie White and Mark Mercer. Towers Depo. 50:8- 13. Willie White is a human resources specialist. White Depo. 4:68. Mark Mercer is currently employed as a warehouse manager. Mercer Depo. 3:184:9. However, at the time of the interviews, he was employed as a warehouse supervisor. Id. Towers was interested in obtaining a supervisory position in any of the three departments that had openings. Towers Depo. 67:2 -12. Her only condition was that she wanted $49,700, the top end of the salary range associated with the position. Towers Depo. 67:22- 25. According to Towers, she informed the panel during the course of the interview that she wanted a salary of $49,700. Towers Depo. 49:2351:21. The interviewers asked Towers questions that were contained on a preprinted form. Towers Depo. 89:19- 25; Interview Questions, Tab I hereto. The same form was used in interviewing all the other candidates for the warehouse supervisor position. Mercer Depo. 18:11- 22; Affidavit of William White at ¶ 4, (Tab J hereto). The interviewers made notes on the preprinted forms during each candidate's interview. White Depo. 64:2 - 4; Mercer Depo. 19:8- 13. Towers interviewed poorly. Affidavit of William White at ¶ 7; Affidavit of Donald Grambusch at ¶ 6, Tab L hereto; Affidavit of Rick Rodriguez at ¶ 6, Tab M

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hereto; Affidavit of Mark Mercer at ¶ 6, Tab N hereto She gave non- responsive answers to some of the questions, failed to provide specific examples to questions that called for examples, and had to have certain questions repeated several times. Towers Depo. 85:16- 86:24; 92:4- 14; White Depo. 79:23-80:6; 112:9- 13; Towers' Interview Responses, Tab K hereto. For example, when the panel of interviewers asked about the toughest decision that she had to make in her current position, Towers' response was "pulling minutes." Towers Depo. 85:16- 24. Towers concedes that her answer was not responsive because "pulling minutes" is an activity, not a decision. Towers Depo. 86:13-24. When asked what she saw as the least favorable aspect of her job, Towers responded: "putting up with people's negatism (sic)." Towers Depo. 93:23-94:7. Towers acknowledges that it is important for a warehouse supervisor to be able to work with different personalities. Towers Depo. 94:19- 25. In response to a question regarding the extent of her prior supervisory or leadership experience, Towers responded that she had no such experience. Towers Depo. 60:12- 15. D. The Promotion Decision

Ultimately, Safeway did not select Towers for the warehouse supervisor position because she was not the best- qualified candidate for the job: she had no prior supervisory or leadership experience and did not perform well in the interview relative to the other candidates. Towers Depo. 62:13- 15; White Depo. 109:9-15; Grambusch Depo. 108:7- 15; 215:2- 216:23; Mercer Depo. 38:15- 25; Affidavits of William White at ¶ 6; Donald Grambusch at ¶ 5; Rick Rodriguez at ¶ 5; and Mark Mercer at ¶ 5. Towers appeared to have been unprepared for the interview and lacked the confidence and

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decisiveness that the panel deemed necessary to effectively perform the warehouse supervisor position. Grambusch Depo. 110:1 - 4; 243:7- 11; 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. The successful candidates for the position were Troy Thomas, Victor King, and Richard Pawelcik. Towers Depo. 70:7 -15. The interviewers unanimously selected Thomas, King, and Pawelick. Rodriguez Depo. 67:10-13; Mercer Depo. 24:10- 15; 24:22-25:4. Towers admitted that she does not know the extent of any supervisory or leadership experience possessed by the successful candidates; nor does she know how those candidates performed in their interviews. Towers Depo. 70:16- 71:2; 73:11-18; 95:1- 4. Thomas had prior supervisory experience in plant and warehouse environments. White Depo. 112:4 -6; Resume of Troy Thomas, Tab O hereto. At the time of the interview, Thomas worked as a supervisor in Safeway's Milk Plant. Tab O . The Milk Plant was in the process of reorganizing its operations and a few supervisors, including Thomas, were scheduled to be laid off. Grambusch Depo. 173:1-3. Consequently, Thomas' supervisor, Troy Halverson, asked if Grambusch would be willing to interview Thomas for one of the open warehouse supervisor positions. Grambusch Depo. 173:37. Given Thomas' supervisory experience, Grambusch agreed to interview Thomas. Id. In addition to Thomas' prior supervisory experience, his experience working with cultured and code- dated items would provide a level of expertise that the warehouse desired. Grambusch Depo. 192:13-193:2; 41:9- 19. Thomas also had a

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college degree in Food Sciences (Tab O ) which, although not required, made him a more attractive candidate. Grambusch Depo. 188:3- 7. Based on Thomas' favorable performance in the interview and his qualifications and experience, the panel offered him a warehouse supervisor position in the Perishable warehouse, which handles cultured and code- dated perishable products. Grambusch Depo. 193:3- 6; Mercer Depo. 41:20-22. King had prior supervisory experience working as a lead person in Safeway's grocery warehouse. Resume of Victor King, Tab P hereto. King's lead experience was a strength that worked in his favor. White Depo. 111:10- 13. King also interviewed well: he came across as being well prepared for the interview. Rodriguez Depo. 120:23- 25; 121:1- 3; Mercer Depo. 51:6-11. For these reasons, he was selected. Pawelcik had 18 years of experience in a warehouse environment and prior leadership experience. Resume of Richard Pawelcik, Tab Q hereto. He had assumed a leadership role in a sizeable team project at the warehouse, which enabled him to showcase his ability to lead and motivate employees. Grambusch Depo. at 79:22 ­ 81:20. During the interview, Pawelcik was well- prepared, and exhibited enthusiasm, confidence and commitment. Grambusch Depo. 145:2 - 4; 165:2- 10; 168:21-169:9; 170:1-9; Mercer Depo. 48:14-25. Notably, Pawelcik had applied for a warehouse supervisor position on two prior occasions without success. Grambusch Depo. 146:2122. Pawelcik's strong performance during the interview demonstrated that he had taken significant steps to position himself to be considered for the warehouse supervisor position. Grambusch Depo. 147: 4-148:19. The interviewers unanimously agreed that

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Pawelcik gave the best interview of the six candidates. White Depo. 109:9- 15; Grambusch Depo. 169:1- 171:11; Rodriguez Depo. 116:8- 14; Mercer Depo. 49:19-24; Affidavits of William White at ¶ 11, Donald Grambusch at ¶ 10, Rick Rodriguez at ¶ 10, and Mark Mercer at ¶ 9. In contrast to the successful candidates, Towers did not interview well: she came across as unprepared, lacking in confidence, and "[i]ndecisive, uncertain of how she would handle certain things if put in that situation." Grambusch Depo. 215:21- 216:17. The interviewers had to "wait[ ] quite awhile for a response." Grambusch Depo. at 202:4; Mercer Depo. at 28:6 -7. She struggled to answer several questions and appeared to be "lost." Grambusch Depo. 201:18-202:5. For example, in response to a question that asked for an example of a time when her ideas had been strongly opposed in a discussion, Towers talked about her concern that the "lumpers" 3 were performing more work than necessary. Towers Depo. 88:9- 25; Rodriguez Depo. 86:16-87:17. The interviewers believed that this was a poor and irrelevant response because the lumpers do not work for Safeway. White Depo. 80:8- 18; Grambusch Depo. 109:6- 15; Rodriguez Depo. 86:16- 87:17; Mercer Depo. 26:9-14. Towers also provided generalized responses to questions that called for specific examples: when asked to give an example of delaying a decision in order to give herself more time to gather information, Towers simply stated that she always takes time before making a decision. Rodriguez Depo. 81:3- 12.

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Lumpers is the term for the individuals who deliver and unload merchandise to Safeway's warehouse. Rodriguez Depo. 86:17-22.

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Further, in response to a question regarding what Towers saw as the positive aspects of the position, she stated "the ability to learn and grow, money," and that she "had a deep desire to go forward." White Depo. 91:21-92:5; Grambusch Depo. 210:20211:1; Rodriguez Depo. 96:12- 18. Towers' response to this question coupled with her demand for the top salary associated with the warehouse supervisor position led Grambusch to conclude that her primary motivation for seeking the position was to receive a pay increase. Grambusch Depo. 212:13- 213:5; 219:25:8; 243:7-15. Towers' repeated references to money left a negative impression on Grambusch because he viewed Towers' motivation as a short- term goal that would not continue to motivate her going forward. Grambusch Depo. 241:9-242:6. The interviewers unanimously agreed that Thomas, King, and Pawelcik were the strongest candidates in terms of their qualifications and performance in the interviews. Rodriguez Depo. 67:10-13; Mercer Depo. 24:10- 15; 24:22- 25:4; Affidavits of William White at ¶ 9, Donald Grambusch at ¶ 8, Rick Rodriguez at ¶ 9, and Mark Mercer at ¶ 7. The panel also unanimously agreed that Towers gave the poorest interview of the six candidates and that she was not the best- qualified candidate for the position. Mercer Depo. 38:15- 25; Affidavits of William White at ¶ 7, Donald Grambusch at ¶ 6, Rick Rodriguez at ¶ 6, and Mark Mercer at ¶ 6. After Grambusch informed Towers that she was not selected for the position, he offered to create a leadership position for Towers so that she could acquire supervisory or leadership skills. Towers Depo. 62:13:20. To that end, Grambusch scheduled a meeting with Towers and Rodriguez to discuss developing such opportunities for

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Towers. Towers Depo. 55:2- 7; 64:13-65:6. Towers declined Grambusch's offer. Towers Depo. 63:17- 19; 64:9- 12; 65:14- 22. Although there have been subsequent warehouse supervisor job openings since July 2002. Towers has not applied for any of them. Towers Depo. 66:4- 9. III. ARGUMENT A. Summary Judgment Standards

Under Fed. R. Civ. P. 56, summary judgment is appropriate where the moving party demonstrates that no genuine issue exists as to any material fact and, thus, it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322- 23 (1986); Shapolia v. Los Alamos Nat'l Lab. , 992 F.2d 1033, 1036 (10 th Cir. 1993). Safeway need not negate Towers' claims, but need only establish an absence of evidence to support them. Celotex at 322. An issue of fact is "material" for purposes of summary judgment if, under the substantive law, it is essential to the proper disposition of the claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). If the plaintiff fails to make the required showing with respect to any element essential to her case, the defendant is entitled to summary judgment "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323; Adler v. Wal-Mart Stores, Inc., 114 F.3d at 670. Because no genuine issue of material fact exists here, the Court should enter judgment in Safeway's favor on Towers' sex discrimination claim for the reasons discussed below.

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B.

Towers Cannot Prove That Safeway's Profferred Reasons Are Pretextual

In order to establish a prima facie claim of discriminatory failure to promote, Towers must show that (1) there was a promotional opportunity available, (2) she was qualified for the promotion and had established availability for the position, (3) despite her qualifications she was not promoted to the position, and (4) the promotional opportunity remained open or was filled. See Sprague v. Thorn Americas, Inc., 1 29 F.3d 1355, 1362 (10th Cir. 1997); see also Amro v. Boeing Co., 232 F.3d 790, 796 & n.2 (10th Cir. 2000). Assuming, for purposes of this Motion, that Towers can establish a prima facie case of sex discrimination, Safeway is nevertheless entitled to summary judgment as she cannot establish pretext. Under the familiar burden- shifting framework of McDonnell-Douglas Corp. v. Green , 411 U.S. 792 (1973), after a plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. A plaintiff must then offer evidence that the articulated reason is pretextual and has the ultimate burden of proving that she was the victim of intentional discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). To establish pretext, a plaintiff must show by a preponderance of evidence that either a discriminatory reason motivated her employer or that the proffered explanation is unworthy of credence. Bullington v. United A irlines, Inc., 186 F.3d 1301, 1317 (10 th Cir. 1999), rev'd on other grounds, (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). A plaintiff may accomplish this "by demonstrating `such weaknesses, implausibilities, inconsistenc ies, incoherencies, or contradictions in

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the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.'" Id. (citing Morgan v. Hilti, Inc ., 108 F.3d 1319, 1323 (10th Cir. 1997)). 1. Towers cannot show that she was more qualified than the successful candidates for the warehouse supervisor position.

Towers cannot meet her burden of proving that Safeway's articulated reasons for failing to promote her to the warehouse supervisor position--that she was not the most qualified candidate because she lacked prior supervisory or leadership experience and performed poorly during the interview--are a pretext for sex discrimination. Indeed, Towers' deposition testimony makes clear that her only "evidence" of pretext is her own subjective belief that she was the most qualified candidate for the position: Q: A: What makes you believe that you were more qualified than these three individuals? Because I've done every job, I've been there 25 years, and I have more skills, I have more experience.

Towers Depo. 74:14- 18. *** Q: A: Q: A: I understand that you believe you were qualified for the job, correct? Correct. But that's based on your subjective belief; is that right? Yes.

Towers Depo. 57:20- 25. It is well settled in the context of a Title VII failure to promote case that a plaintiff's subjective opinions about her qualifications for a particular position are - 12-

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insufficient to raise a factual dispute on the issue of pretext. Bullington, 186 at 1318 (plaintiff's own opinions about her qualifications did not give rise to a material fact dispute); Simms v. Oklahoma Dep't of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1329-30 (10th Cir. 1999) (plaintiff's assertion that he was more objectively qualified for the promotion than the successful candidate did not give rise to a material factual dispute), cert. denied 528 U.S. 815; Williams v. Potter, 331 F.Supp.2d 1331, 1344 (D. Kan. 2004) (plaintiff's personal opinion that she had performed at an acceptable level during the interview was insufficient to create material factual dispute); see also Amro, 232 F.3d at 798 (plaintiff's opinion that his performance was excellent failed to raise fact question as to how his performance compared to others). In order to establish pretext, a Title VII plaintiff who challenges an employer's promotion decision on grounds that she was better qualified for the position must come forward with objective evidence that her qualifications were overwhelmingly superior to those of the other candidates. Bullington, 186 F.3d at 1319 (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); Simms, 165 F.3d at 1330 (plaintiff failed to provide evidence that he was so clearly better qualified than other candidate that a jury could conclude that employer based its decision on something other than proffered reason). Absent such evidence, an employer is entitled to choose between candidates who are "equally qualified in that they possess the objective qualifications for the position and neither is clearly better qualified." Simms,

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165 F.3d at 1330 (noting that the court's role is to prevent unlawful hiring practices, not to act as a "super personnel department"). In Simms and Bullington supra, the Tenth Circuit affirmed summary judgment for the employer under facts similar to this case. In Simms, the plaintiff, who applied for a promotion to a supervisory positio n, alleged that his employer had discriminated against him based on his race, African- American, when it selected a Caucasian employee for the position. Simms, 165 F.3d at 1328. The employer's stated reason for selecting the Caucasian applicant over Simms was that the successful candidate had significantly greater supervisory experience. Id. Simms claimed that the employer's stated reason was pretextual because, among other things, the promotion decision was based on subjective criteria and he believed he had greater education and training than the successful candidate, which he claimed made him more objectively qualified for the job. Id. at 1329. The court rejected Simms' argument because he had no evidence, other than his own belief that he was better qualified, establishing that his credentials were superior to those of the successful candidate. Id. at 1330. Absent such evidence, the court held that it was within the employer's discretion to choose between the candidates. Id. Similarly, in Bullington, the plaintiff alleged that the employer discriminated against her based on her sex when it failed to promote her to a flight officer position. Bullington , 186 F.3d 1315- 16. The employer's stated reason for not promoting Bullington was that a panel of four interviewers gave her unsatisfactory ratings in several areas deemed necessary for the position-- including poor interpersonal skills,

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leadership abilities and problem- solving skills--and because she lacked confidence. Id. at 1316- 17. Bullington attempted to rebut the employer's proffered reason by setting forth her own opinions about her qualifications for the position. For example, in response to one interviewer's opinion that Bullington demonstrated an inability to focus on her career and educational goals, Bullington claimed that she had always put her job duties ahead of her educational goals and that she completed her G.E.D. and flight school while raising seven children. Id. at 1317- 18. In granting summary judgment for the employer, the court noted that Bullington's subjective opinions about her own qualifications did not demonstrate a fact issue about the genuineness of the employer's assessment of her qualifications. Id. Like the plaintiffs in Simms and Bullington, Towers has no objective evidence that she was overwhelmingly better qualified than the three successful candidates for the warehouse supervisor position. It is undisputed that two of the three candidates for the position, Thomas and King, had formal supervisory experience. Tabs O and P. All four interviewers concurred that such experience gave Thomas and King an edge over the other candidates for the position. Affidavits of William White at ¶ 10, Donald Grambusch at ¶ 9, Rick Rodriguez at ¶ 9, and Mark Mercer at ¶ 8. In stark contrast to Thomas and King, Towers lacked any supervisory experience. Towers Depo. 73:1- 6. Nor had she assumed any leadership role within or outside the workplace, as she informed the interviewers. Affidavit of Donald Grambusch at ¶ 5. In addition, Thomas has a college degree and was the only candidate with extensive

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experience working with cultured items, which made him peculiarly well- suited for a supervisor position in the Perishable warehouse. Grambusch Depo. 188:3-7; 192:13193:2. As a result, Towers cannot establish that her qualifications were equal, much less superior, to those possessed by Thomas and King such that pretext can be inferred.4 To the contrary, because the warehouse supervisor position required the successful candidates to supervise other employees, Safeway's decision to hire Thomas and King based on their prior supervisory experience negates any finding of pretext. See Simms, 165 F.3d at 1330 (employer's decision to hire candidate with supervisory experience over candidate without supervisory experience is not the kind of subjective decision that suggests pretext); Colon-Sanchez v. Marsh , 733 F.2d 78, 82 n.1 (10th Cir. 1984) (where job required supervisory and administrative skills, employer's decision to hire first candidate based on his administrative background over candidate with greater mechanical skills raised no question of pretext). With respect to the third successful candidate, Richard Pawelcik, Towers has no evidence that her qualifications were overwhelmingly superior to Pawelcik's. Like Towers, Pawelick had worked as an order selector in the warehouse for several years.

4

Towers attempts to bolster her qualifications for the position with evidence that she had worked in the warehouse longer than the other candidates and held a variety of positions within the warehouse. Towers Depo. 74:14- 18. However, Towers concedes that the warehouse supervisor position involves different responsibilities than the order selector position that she occupied. Towers Depo. 77:19- 78:1. Further, the openings for the warehouse supervisor position were not in the Produce department, the only department in which Towers worked during the entire course of her employment. Therefore, Towers' opinion and conclusory insistence that she was the better candidate for the position constitute an improper attempt to substitute her judgment for that of Safeway's.

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Unlike Towers, however, Pawelcik had voluntarily assumed a leadership role in a large re- racking project at the warehouse where he had demonstrated his leadership skills and his ability to accomplish team projects in a timely, efficient manner. Grambusch Depo. 79:22-80:14; 81:4-20. Further, Pawelcik performed better than all the candidates who interviewed for the position: he was well prepared, offered thoughtful responses to the interview questions, and demonstrated tremendous drive and enthusiasm. Affidavit of Donald Grambusch at ¶ 10; Grambusch Depo. 145:2-4; 165:2- 10; 168:21-169:9; 170:1- 9; 169:1171:11; White Depo. 109:9- 15; Rodrigue z Depo. 116:8-14; Mercer Depo. 48:14- 25. In contrast, of the six candidates, Towers gave the worst interview, and came across as primarily motivated by the possibility of a pay increase. White Depo. 109:11- 15; Grambusch Depo. 241:9- 242:6; Mercer Depo. 38:15- 25; 40:1- 10. Under similar circumstances, one court aptly noted: All of the Interviewers indicate [plaintiff] did not perform well in the interview. All of the interviewers stated that [the successful candidate] did perform well in the interview. An interview is a subjective procedure. How an employee presents himself or herself at an interview is often a determining factor in awarding the position. The importance of the interview is likely heightened in the placement of management positions...[Plaintiff's] opinion of her interview performance is not relevant. What is critical is the perception of the Interviewers. Johnson v. Penske Truck Leasing Co ., 949 F.Supp. 1153, 1776 (D.N.J. 1996). In addition to Pawelcik's superior interview and his leadership experience, the interviewers were impressed by Pawelcik's persistence: Pawelcik had unsuccessfully applied for a warehouse supervisor position on two prior occasions. Grambusch Depo.

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146:21- 23. His strong performance during the interview demonstrated that he had taken significant steps to improve his skills and to better position himself for the warehouse supervisor position. Grambusch Depo. 147: 4-148:19. Towers has no evidence to refute the interviewers' unanimous perception that Pawelcik performed better than Towers during the interview, and that, with his demonstrated leadership experience, he possessed better qualifications than Towers. As a result, Towers cannot establish that Safeway's decision to hire Pawelick was a pretext for sex discrimination. See Jones v. Eaton Corp ., No. 00- 3400, 2002 WL 1360380 (10th Cir. June 24, 2002) (where successful candidate displayed superior initiative and leadership skills during course of interview, it was within employer's discretion to promote candidate over plaintiff). In sum, given Towers' failure to present objective evidence that she was more qualified than the successful candidates, her sex discrimination claim must be dismissed. 2. Safeway's offer to place Towers in a lead position is not evidence of pretext.

In her deposition, Towers testified that Grambusch's offer to place her in a lead position is evidence of sex discrimination because Grambusch did not make a similar offer to male employees: Q: A: Q: Do you have an understanding as to why they wanted to put you in a lead position? No, I do not. Do you know whether or not it was so that you could obtain some supervisory skills?

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A:

I don't understand why no one in my department was ever a lead person, I don't understand why I got treated differently after I'd been there for 25 years and I've done every job, and I was qualified for the position. Being a lead person is not what I was qualified for. I was qualified for the supervisory position.

Towers Depo. 55:8- 19. *** Q: A: So wouldn't that lead position have been an opportunity for you to acquire those supervisory skills? That lead person was discrimination, because no one has ever had to be a lead person in my department ever before, and they treated me differently than they treated men, and it was discrimination.

Towers Depo. 60:22- 61:3. To the extent Towers' argument can be understood, she apparently attempts to establish disparate treatment with evidence that she was offered an opportunity for advancement that was not offered to male employees. However, it is undisputed that Grambusch's stated reason for offering to set up a meeting to discuss the possibility of placing Towers in a lead position was so that she could acquire the leadership and supervisory skills she lacked. Towers Depo. 65:2- 6; 62:10-20. Therefore, Towers cannot in good faith argue that Mr. Grambusch's offer to place her in a lead position or to explore other leadership opportunities for her constituted treatment that was less favorable to that afforded male employees. To the contrary, by providing Towers with an opportunity to acquire leadership and supervisory skills, Towers was treated more favorably than other employees. 5

5

Importantly, the interviewers also rejected two male candidates, Joel Sutton and Rick Mallory for the warehouse supervisor position. Affidavit of Donald Grambusch at ¶ 7. - 19-

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Consequently, Grambusch's offer to place Towers in a lead position does not constitute evidence of pretext and summary judgment should enter on her sex discrimination claim. See Aramburu v. The Boeing Co ., 112 F.3d 1398, 1406 n.4 (10th Cir. 1997) ("an employer's similar or favorable treatment of protected employees does not support an inference of discriminatory animus); see also Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1236 (10th Cir. 1991) (stating that disparate treatment occurs where the employer treats some people less favorably than others because of their sex or other protected status) (emphasis added). IV. CONCLUSION For the reasons set forth above, judgment should be entered in favor of Safeway on Towers' claim. Dated: August 1, 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. (cont'd.).. Mr. Sutton was rejected despite the fact that he had prior supervisory experience working as a foreman at Safeway's Milk Plant. Joel Sutton Resume, Tab S hereto. Mr. Mallory did not have prior supervisory experience. Rick Mallory Resume, Tab R hereto. Unlike Towers, Mr. Mallory was not presented with an opportunity to acquire the skills necessary to reapply for the job in the future. Affidavit of Donald Grambusch at ¶ 11.

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CERTIFICATE OF SERVICE

I hereby certify that on August 1, 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]
3402927_1.DOC

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