Free Statement - District Court of Arizona - Arizona

1 2 3 40 North Center Street, Suite 200 4 Mesa, Arizona 85201 Telephone No.: (480) 464-1111 (480) 464-5692 5 Facsimile No.: Email: [email protected] 6 Attorneys for Plaintiff By: Michael R. Pruitt, State Bar No. 011792 7 8 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

10 Connie Alms, a single woman, 11 12 vs. 13 AdvancePCS, a Delaware corporation, n/k/a CaremarkRx, Inc., a Delaware 14 corporation, 15 16 17 Plaintiff, Connie Alms, by and through her undersigned counsel, and pursuant to 18 F.R.Civ.P. 56(c) and L.R.Civ. 56.1, hereby files Plaintiff's Amended Controverting and 19 Separate Statement of Facts in Support of Response in Opposition to Motion for Summary 20 Judgment. 21 I. 22 1. 23 supported by the record citation. Ms. Alms incorporates by reference Plaintiff's Separate 24 Statement of Facts ("SSOF") ¶ 10. 25 2. 26 evidence as Defendant never verified Defendant's Responses to Plaintiff's Non-Uniform Interrogatories. See Plaintiff's Motion to Filed 07/21/2006 Page 1 of Case 2:04-cv-00332-JWS Document 76 Strike filed concurrently herewith.30 Ms. Alms moves to strike DSF ¶ 2 because the record citation is not admissible Ms. Alms moves to strike Defendant's Statement of Facts ("DSF") ¶ 1 as not Controverting Statement of Facts. Defendant. Plaintiff, Case No. CIV 04-0332 PHX JWS PLAINTIFF'S AMENDED CONTROVERTING AND SEPARATE STATEMENT OF FACTS IN SUPPORT OF RESPONSE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

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3.

Ms. Alms admits that a portion of her duties are described in DSF ¶ 3. Ms.

2 Alms incorporates by reference SSOF ¶¶ 12; 14-15. 3 4. Ms. Alms moves to strike DSF ¶ 4 as the citation to Plaintiff's deposition does

4 not support the factual allegations and Defendant's Response to Plaintiff's Non-Uniform 5 Interrogatories were not verified and thus are inadmissible. See Plaintiff's Motion to Strike 6 filed concurrently herewith. Ms. Alms' employment was terminated from AdvancePCS on 7 March 28, 2002. Ms. Alms incorporates by reference SSOF ¶ 73. 8 5. Ms. Alms moves to strike DSF ¶ 5 on the grounds that the Declaration of Rick

9 Wenban lacks foundation and conflicts with his deposition testimony. See Plaintiff's Motion 10 to Strike filed concurrently herewith. Mr. Wenban has no personal knowledge of the 11 decisionmaking process that lead to the changes with the company. Ms. Alms incorporates 12 by reference SSOF ¶¶ 19-22. 13 6. Ms. Alms moves to strike DSF ¶ 6 on the grounds that the Declaration of Rick

14 Wenban lacks foundation and conflicts with his deposition testimony. See Plaintiff's Motion 15 to Strike filed concurrently herewith. Mr. Wenban described the purpose behind relocating 16 the security department from Scottsdale, Arizona to Dallas, Texas as an expansion of the 17 department--not a reduction in force. Ms. Alms incorporates by reference SSOF ¶ 21. 18 7. Ms. Alms moves to strike DSF ¶ 7 on the grounds that the Declaration of Rick

19 Wenban lacks foundation and conflicts with his deposition testimony. See Plaintiff's Motion 20 to Strike filed concurrently herewith. There is no foundation in Mr. Wenban's Declaration 21 that he was in a position to know of any alleged reduction of force. Mr. Wenban was not a 22 member of the human resources department and was not an officer of the Company. Ms. 23 Alms incorporates by reference herein SSOF ¶ 19 and the Deposition of Rick Wenban dated 24 October 17, 2005, attached hereto as Exh. 5, p. 29, lns. 8-9. The relocation of the security 25 department from Scottsdale, Arizona to Dallas, Texas had nothing to do with any alleged 26 reduction in force. Ms. Alms incorporates by reference SSOF ¶ 21.
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8.

Ms. Alms admits the allegations in DSF ¶ 8 and incorporates by reference

2 SSOF ¶ 21. 3 9. Ms. Alms admits the allegations in DSF ¶ 9 and incorporates by reference

4 SSOF ¶¶ 20-22. 5 10. Ms. Alms admits the allegations in DSF ¶ 10 and incorporates by reference

6 SSOF ¶ 23. 7 8 9 11. 12. 13. Ms. Alms admits the allegations in DSF ¶ 11. Ms. Alms admits the allegations in DSF ¶ 12. With respect to DSF ¶ 13, Ms. Alms admits only that she was given the

10 opportunity to post for other open positions in Scottsdale. (Deposition of Connie Alms dated 11 October 20, 2005, attached hereto as Exh. 1, p. 104, lns. 20-23; SSOF ¶¶ 28-30; 32-35). 12 13 14. 15. Ms. Alms admits the allegations in DSF ¶ 14. Ms. Alms denies the allegations in DSF ¶ 15 and incorporates by reference

14 SSOF ¶¶ 25-34. 15 16. Ms. Alms moves to strike the allegations in DSF ¶ 16 as not supported by the

16 record citation. Ms. Alms incorporates by reference Plaintiff's Motion to Strike. Ms. Alms 17 also denies that the position was an "Analyst position" and "temporary." Ms. Alms 18 incorporates by reference SSOF ¶¶ 25-35. 19 17. Ms. Alms moves to strike the allegations in DSF ¶ 17 as not supported by the

20 record citation. Ms. Alms incorporates by reference Plaintiff's Motion to Strike. Ms. Alms 21 also denies that she expressed interest in "the new IS Analyst position." Ms. Alms 22 incorporates by reference SSOF ¶¶ 25-41. 23 18. Ms. Alms moves to strike the allegations in DSF ¶ 18 as not supported by the

24 record citation. Ms. Alms incorporates by reference Plaintiff's Motion to Strike. The new 25 position also was not called an "IS Analyst position", and Ms. Alms denies that the new 26
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1 position differed from the Senior Information Security Analyst position that Ms. Alms 2 already held. Ms. Alms incorporates by reference SSOF ¶¶ 25-40. 3 19. With respect to DSF ¶ 19, Ms. Alms denies that Mr. Wenban informed Ms.

4 Alms that the qualifications for the Senior Information Security Analyst position were any 5 different than the qualifications and duties set forth in the Senior Information Security 6 Analyst position description. Ms. Alms incorporates by reference SSOF ¶¶ 25-44. 7 20. With respect to DSF ¶ 20, Ms. Alms denies that Mr. Wenban informed Ms.

8 Alms that the qualifications for the Senior Information Security Analyst position were any 9 different than the qualifications and duties set forth in the Senior Information Security 10 Analyst position description. Ms. Alms incorporates by reference SSOF ¶¶ 25-44. 11 21. With respect to DSF ¶ 21, Ms. Alms denies that Mr. Wenban informed Ms.

12 Alms that the qualifications for the Senior Information Security Analyst position were any 13 different than the qualifications and duties set forth in the Senior Information Security 14 Analyst position description. Ms. Alms incorporates by reference SSOF ¶¶ 25-44. 15 22. With respect to DSF ¶ 22, Ms. Alms denies that Mr. Wenban informed Ms.

16 Alms that the qualifications for the Senior Information Security Analyst position were any 17 different than the qualifications and duties set forth in the Senior Information Security 18 Analyst position description. Ms. Alms incorporates by reference SSOF ¶¶ 25-44. 19 23. With respect to DSF ¶ 23, Ms. Alms denies that Mr. Wenban considered and

20 treated all of the applicants for the position the same. Ms. Alms further denies that Mr. 21 Wenben did not consider age as a factor in selecting an employee for the position. Ms. Alms 22 further denies that Mr. Wenban "bent over backwards to make sure the most qualified 23 employee was retained, based on the qualifications the company needed for the position, 24 without any regard to age." Ms. Alms incorporates by reference SSOF ¶¶ 2-8; 10-18; 24-30; 25 33-46; 47-72; 73-87. 26 / / /
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24.

With respect to DSF ¶ 24, Ms. Alms denies that Mr. Wenban fairly considered

2 each applicant for the position. Ms. Alms incorporates by reference SSOF ¶¶ 2-8; 10-18; 243 30; 33-87. 4 25. With respect to DSF ¶ 25, Ms. Alms denies that Rosetta Carr and Annie

5 Simonton were better qualified for the position over Ms. Alms. Ms. Alms denies the 6 remaining allegations of DSF ¶ 25 and incorporates by reference SSOF ¶¶ 2-8; 10-18; 24-30; 7 33-87. 8 26. Ms. Alms moves to strike DSF ¶ 26 as not supported by the record citation.

9 Ms. Alms incorporates by reference SSOF ¶¶ 2-8; 10-18; 24-30; 33-87. 10 27. With respect to DSF ¶ 27, Ms. Alms admits only that Ms. Simonton was given

11 the position. Ms. Alms denies all remaining allegations of DSF ¶ 27 and incorporates by 12 reference SSOF ¶¶ 2-8; 10-18; 24-30; 33-87. 13 28. Ms. Alms moves to strike the allegations in DSF ¶ 28 for the reason that

14 Exhibit 5 of Defendant's Statement of Facts, the new hire information for Ms. Carr, was not 15 produced during the course of discovery. 16 29. Ms. Alms denies the allegations in DSF ¶ 29 that Ms. Simonton was hired by

17 AdvancePCS on January 4, 1999 as an Information Security Technician. Ms. Simonton 18 applied for a position of Programmer Analyst, which is different than a Security Analyst 19 position. The job title listed in the PCS Healthsystems master file setup-2 is "Program 20 Tech." Ms. Alms incorporates by reference SSOF ¶¶ 49-51. Ms. Alms moves to strike the 21 allegation in DSF ¶ 29 that Ms. Carr had been employed with the company longer than Ms. 22 Alms as there is no admissible evidence for this factual allegation. 23 30. Ms. Alms moves to strike the allegations in DSF ¶ 30 as they are inconsistent

24 with the deposition testimony of Mr. Wenban. Ms. Alms moves to strike the Declaration of 25 Mr. Wenban for the reason that it is inconsistent with his deposition testimony. The position 26 filled by Annie Simonton was intended to remain permanently in Scottsdale. Ms. Alms
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1 incorporates by reference SSOF ¶¶ 25-27. According to Mr. Wenban, Ms. Simonton 2 remained with the company about a year after she was put in the position when she left on 3 maternity leave and did not return to work. In response to the question of whose decision it 4 was not to hire someone else in the Scottsdale area to take her place, Mr. Wenban responded 5 as follows: "I don't know. I wasn't in charge of that area at that time." (Exh. 5, Deposition 6 of Rick Wenban, p. 157, lns. 14-24). Mr. Wenban was not involved in the decision to fill the 7 position vacated by Annie Simonton when she did not return to work following her maternity 8 leave. (Exh. 5, Deposition of Rick Wenban, p. 158, lns. 2-15). 9 31. Ms. Alms denies the allegations in DSF ¶ 31 that Ms. Carr best fit the job

10 description qualifications for the position advertised of Senior Information Security Analyst. 11 Ms. Alms incorporates by reference SSOF ¶ 55. 12 32. Ms. Alms denies the allegations in DSF ¶ 32 that Ms. Carr best fit the job

13 description qualifications for the position advertised of Senior Information Security Analyst. 14 Ms. Alms incorporates by reference SSOF ¶¶ 55-56. In addition, the Position Statement 15 prepared by AdvancePCS and submitted to the EEOC omits entirely any reference to Mr. 16 Wenban offering Rosetta Carr the Scottsdale position before offering her a position in Dallas, 17 Texas. (Exh. 6). 18 33. Ms. Alms admits the allegations in DSF ¶ 33 that Mr. Wenban offered Ms. Carr

19 a financial incentive package of $25,000 to move to Dallas, Texas, which she accepted. Mr. 20 Wenban never offered Ms. Alms any additional incentive compensation or money to relocate 21 to Texas. Ms. Alms incorporates by reference SSOF ¶ 56. 22 34. Ms. Alms moves to strike the allegations in DSF ¶ 34 as they are unsupported

23 by the record citations. Ms. Simonton began working for AdvancePCS as a programmer and 24 was brand new to the field of computer security when she transferred to AdvancePCS and 25 was brand new to the field of computer security when she transferred as a programmer and 26 was brand new to the field of computer security when she transferred within AdvancePCS
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1 to a position working in the field of computer security. A computer programmer is a 2 different position than a security practitioner. The time that Ms. Simonton worked as a 3 programmer for AdvancePCS could not be counted towards her years of experience as a 4 security practitioner. In fact, Ms. Simonton was an entry level security person. Ms. Alms 5 incorporates by reference SSOF ¶¶ 48-50. Furthermore, there is no evidence that Ms. 6 Simonton had a computer science degree. According to her application, she reportedly 7 graduated from Northern Arizona University with a Bachelor of Science degree in Business 8 Administration and a major in computer information systems. Ms. Alms incorporates by 9 reference SSOF ¶ 47. 10 35. Ms. Alms denies the allegations in DSF ¶ 35. Ms. Alms' qualifications for the

11 position exceeded the qualifications of Ms. Simonton. Ms. Alms incorporates by reference 12 SSOF ¶¶ 2-18; 24; 29-54; 57-87. 13 14 36. 37. Ms. Alms admits the allegations in DSF ¶ 36. Ms. Alms moves to strike the allegations in DSF ¶ 37 as they are not supported

15 by the record citation. Ms. Alms incorporates by reference SSOF ¶¶ 25-27. 16 38. Ms. Alms moves to strike DSF ¶ 38 as the allegations are not supported by the

17 record citation. Ms. Alms agrees that Ms. Simonton voluntarily left the company's employ 18 after becoming pregnant. Mr. Wenban testified that this occurred about a year after she was 19 placed in the position in Scottsdale. (Exh. 5, Deposition of Rick Wenban, p. 157, lns. 11-16). 20 There is also no admissible evidence of a reduction in force, as the evidence of the purpose 21 of the relocation of the Scottsdale office to Dallas, Texas was to expand the office. Ms. Alms 22 incorporates by reference SSOF ¶ 21. 23 39. Ms. Alms moves to strike the allegations in DSF ¶ 39 as the allegations are

24 made without foundation and are not consistent with the record citation. Mr. Wenban 25 testified that he did not know who's decision it was not to hire someone else in the Scottsdale 26 area to replace Ms. Simonton when she did not return from maternity leave. (Exh. 5,
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1 Deposition of Rick Wenban, p. 157, lns. 17-24). Mr. Wenban has no personal knowledge 2 of the reason why another person was not hired to fill the position vacated by Ms. Simonton. 3 (Exh. 5, Deposition of Rick Wenban, p. 158, lns. 2-15). 4 40. Ms. Alms denies the allegations in DSF ¶ 40. Ms. Alms' position was

5 replaced. Ms. Alms incorporates by reference SSOF ¶¶ 28-35. Ms. Alms was the most 6 qualified person for the position. Ms. Alms incorporates by reference ¶¶ 36-87. 7 41. Ms. Alms denies the allegations in DSF ¶ 41 and incorporates by reference

8 SSOF ¶¶ 36-87. 9 42. Ms. Alms admits the allegations in DSF ¶ 42 that Mr. Wenban used the job title

10 of Senior Information Security Analyst to post the position. Ms. Alms denies that the 11 position posted was actually different than the position of Senior Information Security 12 Analyst. Mr. Wenban never told Ms. Alms that the position posted was anything different 13 from the position of Senior Information Security Analyst. Ms. Alms incorporates by 14 reference SSOF ¶¶ 29-40. 15 43. Ms. Alms moves to strike the allegations in DSF ¶ 43 as they are not supported

16 by the record citation. Ms. Alms incorporates by reference SSOF ¶¶ 28-40; 42-43. 17 44. Ms. Alms moves to strike the allegations in DSF ¶ 44 as they are not supported

18 by the record citation. Ms. Alms incorporates by reference SSOF ¶¶ 28-40; 42-43. 19 45. Ms. Alms moves to strike DSF ¶ 45 as it is not supported by the record citation.

20 Ms. Alms admits that she applied for the position that she had previously held as Senior 21 Information Security Analyst. SSOF ¶ 35. Mr. Wenban, however, did not consider Ms. 22 Alms for the position. SSOF ¶ 76. 23 46. Ms. Alms admits the allegations in DSF ¶ 46 that the employees in the

24 Scottsdale Department applied for the position of Senior Information Security Analyst. Ms. 25 Alms denies that all of the employees were considered for the position. Ms. Alms 26 incorporates by reference SSOF ¶¶ 35; 76-78.
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47.

Ms. Alms denies the allegations in DSF ¶ 47. Mr. Wenban did not fairly

2 consider Ms. Alms for the position of Senior Information Security Analyst. Ms. Alms 3 incorporates by reference SSOF ¶¶ 65-73; 76-78. 4 48. Ms. Alms denies the allegations in DSF ¶ 48. To the contrary, Ms. Alms had

5 been performing well in the position of Senior Information Security Analyst and had the 6 background and experience to perform the job. Ms. Alms incorporates by reference SSOF 7 ¶¶ 2-18; 24; 29-46; 57-59; 63; 65-87. 8 49. Ms. Alms denies the allegations in DSF ¶ 49. Ms. Alms never told Mr.

9 Wenban that she did not want to work on any platforms other than ACF2. Ms. Alms 10 incorporates by reference SSOF ¶ 71. 11 50. Ms. Alms denies the allegations in DSF ¶ 50. Ms. Alms was better qualified

12 for the position than Ms. Carr and Ms. Simonton. Ms. Alms incorporates by reference SSOF 13 ¶¶ 24; 40-63; 72-87. Ms. Alms agrees that no one at AdvancePCS expressly told her that she 14 was being terminated or not chosen for the position because of her age. Yet, on March 28, 15 2002, when she was called into a meeting with Mr. Wenban and two representatives from 16 the human resources department at AdvancePCS, Ms. Alms asked if she was not selected for 17 mentoring because she was too old. Mr. Wenban and the human resources representatives 18 in the meeting said nothing and did not respond to her question. Ms. Alms incorporates by 19 reference SSOF ¶ 73. 20 51. Ms. Alms denies the allegations in DSF ¶ 51 and incorporates by reference

21 SSOF ¶ 73. 22 52. Ms. Alms denies the allegations in DSF ¶ 52. Ms. Alms testified that age could

23 be the only reason why she was not selected for the position. (Exh. 1, Deposition of Connie 24 Alms, p. 142, lns. 9-13). Ms. Alms believed that age was the reason she was not selected 25 because she had substantially more background and experience in the position than Ms. 26
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1 Simonton. (Exh. 1, Deposition of Connie Alms, p. 142, lns. 17-25). Ms. Alms incorporates 2 by reference SSOF ¶ 73. 3 53. Ms. Alms denies the allegations in DSF ¶ 53 as Defendant misstates Ms. Alms'

4 testimony. Following a short break, counsel for AdvancePCS asked Ms. Alms the following 5 question: 6 7 8 9 Q. Okay. I just have another question along the lines of the last questions I was asking. Do you have any proof, any evidence that the decision-makers in this decision not to retain you were motivated by your age to make that decision, other than what you said before? A. I have no proof.

10 (Exh. 1, Deposition of Connie Alms, p. 143, ln. 23 to p. 144, ln. 5). (Emphasis added). 11 Earlier in her testimony, Ms. Alms described why she felt her age was the reason for not 12 receiving the position. (Exh. 1, Deposition of Connie Alms, p. 142, lns. 17-25). 13 54. Ms. Alms denies the allegations in DSF ¶ 54. Ms. Alms submits that her age

14 discrimination claim is based on the factual allegations contained in her Separate Statement 15 of Facts. Ms. Alms incorporates by reference SSOF ¶¶ 1-87. 16 17 55. 56. Ms. Alms admits the allegations in DSF ¶ 55. Ms. Alms moves to strike the allegations in DSF ¶ 56 for the reason that the

18 allegations lack foundation. Defendant has no admissible evidence what the EEOC did and 19 did not do in its investigation before issuing the Determination. Ms. Alms incorporates by 20 reference SSOF ¶¶ 79-87. 21 57. Ms. Alms moves to strike DSF ¶ 57 for the reason that the allegations are not

22 supported by the record citation. There is no admissible evidence cited by Defendant that 23 Mr. Wenban was 53 years old when he made the decision not to hire Ms. Alms. Mr. Wenban 24 testified that he did not know how old Ms. Alms was, he knew that she was over 40 and he 25 "ball-parked" her age as younger than his age. (Exh. 5, Deposition of Rick Wenban, p. 148, 26 ln. 25 to p. 149, ln. 10).
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1 II. 2

Separate Statement of Facts. 1. Ms. Alms was born in the year 1945. (Exh. 1, Deposition of Connie Alms, p.

3 11, lns. 4-5). Ms. Alms was 55 years old when she was hired by PCS Health Systems, a 4 predecessor of Defendant AdvancePCS. (Exh. 1, Deposition of Connie Alms, p. 11, lns. 85 10; p. 35, lns. 2-6). She was 57 years old when her employment with Defendant

6 AdvancePCS was involuntarily terminated. (Exh. 1, Deposition of Connie Alms, p. 11, lns. 7 11-23). 8 2. Ms. Alms has worked in the computer security industry since 1985. (Plaintiff's

9 Answers to Defendant's First Set of Interrogatories, answer to Interrogatory No. 10, p. 11, 10 ln. 19 to p. 12, ln. 6, attached hereto as Exh. 2; Affidavit of Joseph Yauch dated July 22, 11 2005, ¶ 6-7, attached hereto as Exh. 3). 12 3. In 1985, Ms. Alms applied for a position working in the area of computer

13 security for First Interstate Bank of Arizona ("First Interstate"). Joseph Yauch personally 14 interviewed Ms. Alms for the position and recommended that she be hired. (Exh. 3, 15 Affidavit of Joseph Yauch, ¶ 6). 16 4. Mr. Yauch was personally involved in training Ms. Alms for her computer

17 security position with First Interstate. (Exh. 3, Affidavit of Joseph Yauch, ¶ 7). 18 5. Between 1985 and 2000, Ms. Alms worked for other companies in the

19 computer security industry including First Interstate Bank, Arizona, Walsh America/PMSI 20 (formerly PDS), Blue Cross Blue Shield of Oregon, and NDCHealth. (Exh. 2, Plaintiff's 21 Answers to Interrogatories, p. 11, lns. 3-18). 22 6. During these 15 years, Ms. Alms gained valuable experience in the computer

23 security industry and worked on a variety of software platforms and/or systems. (Exh. 2, 24 Plaintiff's Answers to Interrogatories, Interrogatories Nos. 18 and 19, p. 21, ln. 21 to p. 23, 25 ln. 21; Exh. 3, Affidavit of Joseph Yauch, ¶ 11). 26 / / /
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7.

In 1983, 1984 and 1988, Ms. Alms attended several community colleges with

2 a study emphasis in communications and management. (Exh. 2, Plaintiff's Answers to 3 Interrogatories, Interrogatory No. 11, p. 12, lns. 9-23). 4 8. After Ms. Alms began working in the computer security industry, she took

5 many classes and obtained a variety of certifications and training in security. (Exh. 2, 6 Plaintiff's Answers to Interrogatories, Interrogatory No. 11, p. 12, ln. 24 to p. 13, ln. 13; Exh. 7 1, Deposition of Connie Alms, p. 21, ln. 13 to p. 23, ln. 8; Affidavit of Connie Alms dated 8 February 3, 2006, ¶ 2 and Exh. A, attached hereto as Exh. 4). 9 9. In 2000, while working as an independent contractor for a predecessor of

10 AdvancePCS, Joseph Yauch became aware that there was an open position for a Senior 11 Information Security Analyst at the company. (Exh. 3, Affidavit of Joseph Yauch, ¶¶ 4-5, 12 and 8). Mr. Yauch contacted Ms. Alms and recommended that she apply for the Senior 13 Information Security Analyst position. Ms. Alms applied for the position and was

14 subsequently hired. (Exh. 1, Deposition of Connie Alms, p. 12, lns. 1-19; Exh. 3, Affidavit 15 of Joseph Yauch, ¶ 9). 16 10. PCS Health Systems, Inc. mailed an offer of employment letter to Ms. Alms

17 on April 27, 2000 offering her the position of Senior Information Security Analyst in the 18 company's Scottsdale office. (Exh. 4, Affidavit of Connie Alms, ¶ 3 and Exh. B). Ms. 19 Alms' start date with PCS Health Systems, Inc. was May 15, 2000. (Exh. 4, Affidavit of 20 Connie Alms, ¶ 3 and Exh. B). 21 11. Darrell Mills, Manager of Information Security, hired Ms. Alms with PCS

22 Health Systems. (Exh. 1, Deposition of Connie Alms, p. 18, lns. 6-20). Mr. Mills and Gina 23 Wise were supervisors of Ms. Alms. (Exh. 1, Deposition of Connie Alms, p. 49, lns. 13-16). 24 Mr. Mills told Ms. Alms that she was hired because of her expertise across multiple 25 platforms. (Exh. 1, Deposition of Connie Alms, p. 111, ln. 18 to p. 112, ln. 20). 26 / / /
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12.

While working at PCS Health Systems, Ms. Alms' primary area of focus was

2 working with the ACF2 software. (Exh. 1, Deposition of Connie Alms, p. 30, lns. 19-22). 3 ACF2 is a software installed on the main frame that is designed to provide security for other 4 software programs running on the main frame. (Exh. 1, Deposition of Connie Alms, p. 28, 5 lns. 13-18; p. 26, lns. 18-21). 6 13. After Ms. Alms was hired by PCS Health Systems, a merger between PCS

7 Health Systems and Advance Paradigm occurred resulting in the formation of AdvancePCS. 8 (Exh. 1, Deposition of Connie Alms, p. 35, lns. 2-6; Exh. 4, Affidavit of Connie Alms, ¶ 4). 9 14. While employed by AdvancePCS, Ms. Alms audited ACF2, created role- based

10 access for the business units, worked with programmers and tech support people, conducted 11 training in the department, and worked on disaster recovery. (Exh. 1, Deposition of Connie 12 Alms, p. 16, ln. 18 to p. 17, ln. 24; p. 23, ln. 18 to p. 26, ln. 6; p. 46, lns. 4-17). 13 15. Ms. Alms was the Company's ACF2 representative. (Exh. 1, Deposition of

14 Connie Alms, p. 47, lns. 4-14). 15 16. Ms. Alms received pay increases while employed at AdvancePCS, (Exh. 1,

16 Deposition of Connie Alms, p. 48, lns. 9-23), and she was never demoted, disciplined or 17 written up. (Exh. 1, Deposition of Connie Alms, p. 48, ln. 24 to p. 49, ln. 7). Ms. Alms does 18 not recall ever receiving verbal counseling or warnings regarding her performance. (Exh. 1, 19 Deposition of Connie Alms, p. 49, lns. 8-12). 20 17. In March 2001, while she was employed by AdvancePCS, Ms. Alms received

21 an AdvancePCS performance evaluation. (Exh. 1, Deposition of Connie Alms, p. 51, ln. 20 22 to p. 52, ln. 11; Exh. 4, Affidavit of Connie Alms, ¶ 5 and Exh. C). Ms. Alms' job title in 23 the performance evaluation is Senior Information Security Analyst. (Exh. 4, Affidavit of 24 Connie Alms, ¶ 5 and Exh. C, p. 1). 25 18. Ms. Alms received a "5" in all rated categories which means "exceeds most

26 objectives." (Exh. 4, Affidavit of Connie Alms, ¶ 5 and Exh. C).
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19.

On December 31, 2001, Rick Wenban was hired by AdvancePCS as the

2 Director of Information Security. (Exh. 5, Deposition of Rick Wenban, p. 11, lns. 7-12; p. 3 19, lns. 1-8; p. 26, lns. 4-9). 4 20. On his first day on the job, Mr. Wenban traveled to Scottsdale, Arizona with

5 his supervisor, Ralph Poore, to meet with AdvancePCS employees to discuss changes in the 6 company. (Exh. 5, Deposition of Rick Wenban, p. 22, ln. 4-15). 7 21. Sometime before Mr. Wenban was hired, a decision had been made at

8 AdvancePCS to move the security department from Scottsdale, Arizona to Dallas, Texas, 9 and to change the reporting structure of the security department from the IT department to 10 corporate. (Exh. 5, Deposition of Rick Wenban, p. 19, ln. 14 to p. 20, ln. 7; p. 21, ln. 10 to 11 p. 22, ln. 15). The purpose of the relocation of the security department to Dallas was to 12 expand the department from "a small group in the corner of operations to an organization - 13 Level 1 organization." The department was to be expanded and brought up to cover much 14 greater "band width responsibilities" and to make the department the same level as IT, HR 15 or legal. (Exh. 5, Deposition of Rick Wenban, p. 58, ln. 9 to p. 59, ln. 6). 16 22. Mr. Wenban had no prior knowledge of the plan to transfer the security

17 department from Arizona to Texas. He learned of the decision the same day it was presented 18 by Mr. Poore on January 2, 2002 in separate meetings to management of the IT department 19 in Scottsdale and to employees of the security department. (Exh. 5, Deposition of Rick 20 Wenban, p. 20, lns. 12-18, p. 21, ln. 10 to p. 22, ln. 1; p. 26, lns. 4-9; p. 27, lns. 7-17; p. 27, 21 ln. 20 to p. 28, ln. 6; p. 31, ln. 18 to p. 32, ln. 11; Exh. 1, Deposition of Connie Alms, p. 54, 22 ln. 22 to p. 55, ln. 14). 23 23. At first, Mr. Wenban was instructed that he was to move all positions in the

24 security department in Scottsdale to Dallas, Texas. (Exh. 5, Deposition of Rick Wenban, p. 25 20, lns. 8-11). At the first meeting with Mr. Wenban in early January 2002, the security 26 department personnel were told that all positions in the Scottsdale office would be moved to
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1 Dallas, Texas. (Exh. 1, Deposition of Connie Alms, p. 54, ln. 22 to p. 55, ln. 14; Exh. 4, 2 Affidavit of Connie Alms, ¶ 6). 3 24. Believing that her position in Scottsdale was being relocated to Texas, Ms.

4 Alms requested and was given a letter of recommendation dated January 6, 2002 from her 5 supervisor, Gina Wise. (Exh. 1, Deposition of Connie Alms, p. 53, ln. 19 to p. 54, ln 17; 6 Exh. 4, Affidavit of Connie Alms, ¶ 7 and Exh. D). Ms. Wise wrote as follows: 7 8 9 10 11 12 13 14 Connie worked in the AdvancePCS Information Security department as a Senior Information Security Analyst from May 2002[sic] until present. Due to the department re-organizing/relocating to Dallas Texas, and Connie's personal choice not to relocate to Dallas, her position will be phased out effective April 1, 2002. Connie has been an instrumental contributor to improving structure and account administration process for ACF2 and other key business platforms. She has also facilitated a solution for account profiles and acted as a subject matter expert and mentor to the entire department team for ACF2 administration. Her work ethic, dedication and commitment to quality work are admirable. I would not hesitate to recommend Connie for a Senior Information Security Analyst position, or another such related position that could use her skills.

15 (Exh. 4, Affidavit of Connie Alms, ¶ 7 and Exh. D). 16 25. Sometime after the initial meeting in Scottsdale on January 2, 2002, Mr.

17 Wenban was told to leave one person in the security department in Scottsdale. Mr. Wenban 18 was not involved in the decision to allow this position to remain in Scottsdale. The person 19 in this position would act as a liason between Dallas and Scottsdale. (Exh. 5, Deposition of 20 Rick Wenban, p. 34, lns. 12-20; p. 36, ln. 8 to p. 37, ln. 1). 21 26. Mr. Wenban was subsequently involved in the decision to allow a second

22 person to remain in the security department in Scottsdale. (Exh. 5, Deposition of Rick 23 Wenban, p. 36, lns. 8-19; p. 37, ln. 18 to p. 38, ln. 1). 24 27. The first position was intended to remain permanently in Scottsdale whereas

25 the second position, which was junior to the first position, would transition to Texas after a 26 few months. (Exh. 5, Deposition of Rick Wenban, p. 37, ln. 18 to p. 38, ln. 16.).
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28.

Approximately a month or so after learning of the plans to transfer the

2 Scottsdale security department to Texas, Ms. Alms learned in a staff meeting that a security 3 position would remain in the Scottsdale office. (Exh. 1, Deposition of Connie Alms, p. 106, 4 ln. 18 to p. 107, ln. 25). 5 29. Around this time, Ms. Alms was given a document prepared by human

6 resources of AdvancePCS entitled "Open Requisition Report by VP as of 2/4/2002." The 7 document shows that an Arizona position with the job title of "Sr. Information Security 8 Analyst" was open and posted on January 25, 2002. It also states that the open position was 9 a replacement for Connie Alms. (Exh. 1, Deposition of Connie Alms, p. 92, ln. 25 to p. 93, 10 ln. 17; p. 93, ln. 25 to p. 100, ln. 18; Exh. 4, Affidavit of Connie Alms, ¶ 8 and Exh. E). 11 30. Because Ms. Alms had always held the position of Senior Information Security

12 Analyst, and since the job posting specifically noted that the same position that she held was 13 being posted and that it was a replacement for Ms. Alms, Ms. Alms felt that it was her job 14 that was being replaced. (Exh. 1, Deposition of Connie Alms, p. 92, ln. 25 to p. 93, ln. 9). 15 In reference to the Open Requisition Report by V.P. as of 2/4/2002 (hereinafter "Open 16 Requisition Report"), Ms. Alms testified, "I was just reapplying for a position that I already 17 held, and that's why I felt it was my position that was being handed over to somebody of less 18 qualifications." (Exh. 1, Deposition of Connie Alms, p. 92, ln. 25 to p. 93, ln. 9). Either 19 Rick Wenban or Gina Wise, or both, informed Ms. Alms that one of the open positions that 20 would remain in Scottsdale in the security department was the Senior Information Security 21 Analyst position posted in the Open Requisition Report, which was the same position that 22 Ms. Alms already held. (Exh. 4, Affidavit of Connie Alms, ¶ 9). 23 31. Van VanDuke, who was listed as the recruiter in the Open Requisition Report,

24 was the IT Department liason to the human resources department for recruiting. He assisted 25 the human resources department in its recruiting efforts. (Exh. 5, Deposition of Rick 26 Wenban, p. 24, ln. 17 to p. 25, ln. 1).
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32.

In the Open Requisition Report, Mr. Wenban was listed as the hiring

2 supervisor. (Exh. 5, Deposition of Rick Wenban, p. 25, lns. 2-4). Mr. Wenban testified that 3 AdvancePCS utilized this method to advertise and to fill open positions. (Exh. 5, Deposition 4 of Rick Wenban, p. 26, ln. 14 to p. 27, ln. 4). 5 33. Ms. Alms was given a written job description called "AdvancePCS Position

6 Description" that was created for one of the remaining security positions in Scottsdale. (Exh. 7 1, Deposition of Connie Alms, p. 93, lns. 10-17; p. 105, ln. 2-13; Exh. 4, Affidavit of Connie 8 Alms, ¶ 10 and Exh. F; Exh. 5, Deposition of Rick Wenban, p. 62, lns. 13-22; p. 63, lns. 99 15). The Position Description was for the job title of Senior Information Security Analyst, 10 the identical job title that Ms. Alms had held since her hire in May 2000. (Exh. 4, Affidavit 11 of Connie Alms, ¶ 10 and Exh. F). The job title in the Position Description also matched the 12 job title in the Open Requisition Report. (Exh. 4, Affidavit of Connie Alms, ¶¶ 8 and 10 and 13 Exhibits E and F). 14 34. The description of the Senior Information Security Analyst job in the

15 AdvancePCS Position Description described the position that Ms. Alms was already 16 performing with AdvancePCS. (Exh. 1, Deposition of Connie Alms, p. 93, ln. 25 to p. 94, 17 ln. 24; Exh. 4, Affidavit of Connie Alms, ¶ 10 and Exh. F). 18 35. Once the Senior Information Security Analyst position was posted, those who

19 were in the Scottsdale office were allowed to apply for the position. (Exh. 5, Deposition of 20 Rick Wenban, p. 45, lns. 3-9). Ms. Alms, together with other members of the security 21 department in Scottsdale, applied for the open position of Senior Information Security 22 Analyst. (Exh. 5, Deposition of Rick Wenban, p. 55, ln. 24 to p. 56, ln. 24; p. 83, lns. 9-21; 23 Exh. 1, Deposition of Connie Alms, p. 108, lns. 1-20; Exh. 4, Affidavit of Connie Alms, ¶ 24 11 and Exh. G). 25 36. The Position Description for the Senior Information Security Analyst position

26 included sections entitled Position Summary, Position Responsibilities and Position
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1 Requirements. Under the Position Summary, the position directly administered multiple 2 information systems security products, potentially including CA-ACF2, Tandem 3 Guardian/Safeguard, Windows NT, OS/400, AIX, Solaris, HP-UX, and Lotus Notes. The 4 position also provided information security "help desk" assistance in support of internal and 5 external customers. The position directly administered application security potentially 6 including web-based applications, MVS/CICS applications, batch jobs, online applications 7 under OS/400 or Tandem, or other network applications. In addition, the position reviewed 8 appropriate security logs and followed up on suspected violations. (Exh. 4, Affidavit of 9 Connie Alms, ¶ 10 and Exh. F at EEOC050). 10 37. Under the section entitled Position Responsibilities, the position required 50%

11 of the time to security system administration, which relates to hands-on technical skills in 12 computer security. (Exh. 4, Affidavit of Connie Alms, ¶ 10 and Exh. F at EEOC050; Exh. 13 5, Deposition of Rick Wenban, p. 75, lns. 7-15). 14 38. Under the section entitled Position Requirements, the position required

15 experience with security software products including those products referenced in the 16 Position Description as well as excellent client relationship skills. In addition, graduation 17 from high school or specialized training was required. A college degree was desired, but not 18 required. Under experience, six to eight plus years of information security practitioner 19 experience with three or more years of product-specific security experience which may be 20 included within the six to eight year practitioner experience was required. The proficiency 21 level for the position was described as a journey level (fully qualified, works independently 22 on assignments of standard difficulty). (Exh. 4, Affidavit of Connie Alms, ¶ 10 and Exh. F 23 at EEOC051 and EEOC052). 24 39. Both Mr. Wenban and Mr. Poore were involved in preparing the Senior

25 Information Security Analyst Position Description. (Exh. 5, Deposition of Rick Wenban, p. 26 39, ln. 14 to p. 40, ln. 21). Neither Mr. Wenban, Ms. Wise, nor any member of AdvancePCS
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1 management or supervisor ever told Ms. Alms that the position for which Ms. Alms applied 2 was different than the written Position Description for the Senior Information Security 3 Analyst position. (Exh. 1, Deposition of Connie Alms, p. 147, lns. 2-16; Exh. 4, Affidavit 4 of Connie Alms, ¶ 10 and Exh. F). 5 40. According to Mr. Wenban, the position of Senior Information Security Analyst

6 was "a pretty high level." (Exh. 5, Deposition of Rick Wenban, p. 37, ln. 4-17). 7 41. Ms. Alms sent a lengthy email to Mr. Wenban expressing her interest in the

8 position and describing her qualifications, experience, training, etc. (Exh. 1, Deposition of 9 Connie Alms, p. 109, lns. 3-13; Exh. 4, Affidavit of Connie Alms, ¶ 11 and Exh. G). Ms. 10 Alms sent the e-mail because Mr. Wenban never really talked with her about her 11 qualifications for the open position. (Exh. 1, Deposition of Connie Alms, p. 109, ln. 3 to p. 12 110, ln. 8). Mr. Wenban did receive and read the e-mail from Ms. Alms. (Exh. 5, Deposition 13 of Rick Wenban, p. 81, ln. 17 to p. 82, ln. 4; p. 82, ln. 21 to p. 83, ln. 21). 14 42. AdvancePCS, through its legal counsel, Littler Mendelson, submitted a

15 Position Statement to the U.S. Equal Employment Opportunity Commission (EEOC) dated 16 August 23, 2002. (August 23, 2002 Position Statement, attached hereto as Exh. 6). 17 AdvancePCS reported to the EEOC that it used the following criteria to select employees to 18 fill the two remaining positions: 19 20 21 22 23 24 25 26 AdvancePCS selected employees to fill the two remaining positions based on experience, technical knowledge of multiple systems, production levels, performance evaluations, interpersonal skills, temperament, critical thinking skills, ability to work independently and cross-training experience. (Exh. 6 at EEOC101). Contrary to AdvancePCS' report to the EEOC, Mr. Wenban admitted that he did not consider the performance evaluation of the applicants for the position of Senior Information Security Analyst. (Exh. 5, Deposition of Rick Wenban, p. 87, ln. 25 to p. 88, ln. 8). Mr. Wenban admitted that the applicants' supervisors were in a better position to evaluate the applicants' technical skills than he was. (Exh. 5, Deposition of Rick Wenban, p. 86, lns. 8-17). Also, contrary to AdvancePCS's representations to the EEOC, Mr. Wenban
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Case 2:04-cv-00332-JWS

1 admitted that he did not consider production levels. (Exh. 5, Deposition of Rick Wenban, 2 p. 162, lns. 3-14). 3 43. According to Mr. Wenban, the person selected for the permanent Scottsdale

4 position would need to be able to work independently without supervision. (Exh. 5, 5 Deposition of Rick Wenban, p. 55, lns. 5-10; Exh. 4, Affidavit of Connie Alms, ¶ 10 and 6 Exh. F at EEOC052). In evaluating the applicants for the Scottsdale position, Mr. Wenban 7 first evaluated technical skills. (Exh. 5, Deposition of Rick Wenban, p. 64, lns. 4-17). Mr. 8 Wenban envisioned the position in Scottsdale to be more visible and interactive with 9 everybody in Scottsdale, rather than being in charge of a single function. (Exh. 5, Deposition 10 of Rick Wenban, p. 70, lns. 2-18). 11 44. Since Ms. Alms began working in the computer security industry in 1985, she

12 has had experience working on nearly all of the software platforms described in the Senior 13 Information Security Analyst Position Description. Ms. Alms worked primarily with ACF2 14 and Oracle while employed by AdvancePCS. She also had prior experience working on the 15 Tandem Guardian, Windows/NT and Windows/2000NT, AIX (UNIX), Solaris, HP-UX or 16 similar Unix security, and Lotus Notes. (Exh. 1, Deposition of Connie Alms, p. 36, ln. 23 17 to p. 37, ln. 10; p. 38, ln. 13 to p. 42, ln. 1; Exh. 2, Plaintiff's Answers to Defendant's 18 Interrogatories, p. 21, ln. 21 to p. 23, ln. 21). 19 45. Although Ms. Alms did not have prior experience working on the OS/400

20 platform, (Exh. 1, Deposition of Connie Alms, p. 38, lns. 6-8), following the discharge of her 21 employment from AdvancePCS, she worked for a company in Minnesota whose operating 22 system was OS/400. Ms. Alms was shown how to delete Ids and to verify access. Ms. Alms 23 testified, "[i]t's all panel driven. It's very easy to do." It took ten minutes to train Ms. Alms 24 what to do. "They gave me the procedure, I logged on, and they showed me what I had to 25 do, and then I did it until the time I left." (Exh. 1, Deposition of Connie Alms, p. 145, ln. 22 26 to p. 146, ln. 17).
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46.

Rosetta Carr was the only person in the Scottsdale security department who had

2 had any prior training on the OS/400 system. (Exh. 1, Deposition of Connie Alms, p. 122, 3 lns. 12-18; p. 146, ln. 18 to p. 147, ln. 1). 4 47. Annie Simonton, also known as Annie Tifft, was approximately 25 years old

5 during the events giving rise to this action. (Exh. 6, August 23, 2002 Position Statement at 6 EEOC102 and EEOC103). Ms. Simonton reportedly graduated from Northern Arizona 7 University with a Bachelor of Science degree in Business Administration and a major in 8 Computer Information Systems. (Resume of Anne Tifft, attached hereto as Exh. 7). 9 48. Ms. Simonton had no expertise in any software platforms. (Exh. 5, Deposition

10 of Rick Wenban, p. 104, ln. 23 to p. 105, ln. 20). Ms. Simonton had no work experience in 11 the computer security industry prior to AdvancePCS. (Exh. 5, Deposition of Rick Wenban, 12 p. 106, ln. 7 to p. 107, ln. 16). Ms. Simonton did not have six to eight or more years of 13 information security practitioner experience. (Exh. 5, Deposition of Rick Wenban, p. 121, 14 lns. 1-3). Moreover, she did not have three plus years of product specific systems security 15 experience. (Exh. 5, Deposition of Rick Wenban, p. 121, lns. 4-12). The extent of her 16 experience as a security practitioner would have been the tenure of her employment at 17 AdvancePCS. (Exh. 5, Deposition of Rick Wenban, p. 121, lns. 13-16). By contrast, Ms. 18 Alms had over eight years of experience as a security practitioner and more than three years 19 of experience in product specific systems security experience. (Exh. 5, Deposition of Rick 20 Wenban, p. 121, ln. 24 to p. 122, ln. 22). 21 49. Ms. Simonton began working for AdvancePCS as a programmer and was brand

22 new to the field of computer security when she transferred within AdvancePCS to a position 23 working in the field of computer security. (Exh. 3, Affidavit of Joseph Yauch, ¶ 13). A 24 computer programmer is a different position than a security practitioner. (Exh. 5, Deposition 25 of Rick Wenban, p. 121, lns. 17-19). The time that Ms. Simonton worked as a programmer 26
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1 for AdvancePCS would not be counted towards her years of experience as a security 2 practitioner. (Exh. 5, Deposition of Rick Wenban, p. 121, lns. 20-23). 3 50. Ms. Simonton was an entry level security person. (Exh. 5, Deposition of Rick

4 Wenban, p. 85, lns. 4-18; p. 155, lns. 5-17; Exh. 4, Affidavit of Connie Alms, ¶ 11 and Exh. 5 G). 6 51. Ms. Simonton's job title at the time Mr. Wenban was evaluating the applicants

7 was low level. (Exh. 5, Deposition of Rick Wenban, p. 125, ln. 20 to p. 126, ln.1). Ms. 8 Simonton's job title was probably two positions below the position of Senior Information 9 Security Analyst. (Exh. 5, Deposition of Rick Wenban, p. 126, lns. 2-3). 10 52. Ms. Simonton's performance evaluation listed her job title, Information

11 Security Technician. (AdvancePCS Performance Planning and Review Worksheet for Annie 12 Simonton dated March 1, 2001, attached hereto as Exh. 8). Ms. Simonton received an 13 overall evaluation score of a five, (exceeds most objectives), with three areas evaluated with 14 a rating of four (exceeds some objectives), eight areas rated a five, and one area rated a six 15 (outstanding). (Exh. 8). Ms. Simonton had approximately a year and a half experience in 16 the computer security industry, and she was in a junior position. (Exh. 5, Deposition of Rick 17 Wenban, p. 136, ln. 25 to p. 137, ln. 6). 18 53. Mr. Wenban knew that Ms. Simonton was young. (Exh. 5, Deposition of Rick

19 Wenban, p. 158, ln. 18-19). Mr. Wenban knew that Ms. Alms was older and that she was 20 more than 40 years old. (Exh. 5, Deposition of Rick Wenban, p. 148, ln. 25 to p. 149, ln. 10). 21 54. Ms. Alms was the oldest person in the security department in Scottsdale. (Exh.

22 1, Deposition of Connie Alms, p. 128, ln. 25 to p. 129, ln. 5). All other members of the 23 security department who applied for but did not get the position were over 40 years old. 24 (Exh. 1, Deposition of Connie Alms, p. 128, lns. 4-24). 25 55. Rosetta Carr accepted a position with AdvancePCS in Dallas, Texas. (Exh. 1,

26 Deposition of Connie Alms, p. 130, lns. 14-17). Ms. Carr did not have the experience
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1 necessary to perform the position that was advertised to remain in Scottsdale. (Exh. 1, 2 Deposition of Connie Alms, p. 130, ln. 23 to p. 131, ln. 1; p. 131, ln. 17 to p. 132, ln. 2). Ms. 3 Carr had less experience on platforms than Ms. Alms. (Exh. 1, Deposition of Connie Alms, 4 p. 130, ln. 23 to p. 132, ln. 8). Ms. Carr was reportedly 46 years old when she relocated to 5 Dallas, Texas. (Exh. 6 at EEOC102). 6 56. Mr. Wenban offered Ms. Carr $25,000 to relocate to Dallas, Texas, which she

7 accepted. (Exh. 5, Deposition of Rick Wenban, p. 174, lns. 15-24). Mr. Wenban never 8 offered Ms. Alms any additional incentive compensation or money to relocate to Texas. 9 (Exh. 5, Deposition of Rick Wenban, p. 175, lns. 2-4). 10 57. During the course of his work assignment at AdvancePCS, Mr. Yauch

11 interacted with both Ms. Alms and Ms. Simonton. (Exh. 3, Affidavit of Joseph Yauch, ¶ 10). 12 Based on his personal knowledge and observations, Ms. Alms had extensive experience in 13 multiple computer systems and was very knowledgeable in ACF2. (Exh. 3, Affidavit of 14 Joseph Yauch, ¶ 11). Ms. Alms was a good worker who accomplished her tasks, was very 15 involved in her work and worked well with and was always trying to help her fellow 16 employees as well as her employer. Ms. Alms was a "real go getter." (Exh. 3, Affidavit of 17 Joseph Yauch, ¶ 12). 18 58. In June 2001, Ms. Simonton was still learning and being trained in the field of

19 computer security. Ms. Simonton was not qualified to hold the senior security analyst 20 position whereas Ms. Alms was fully qualified to hold such a position. (Exh. 3, Affidavit of 21 Joseph Yauch, ¶¶ 14-15). Ms. Simonton did not have working knowledge of the platform 22 systems at AdvancePCS. (Exh. 1, Deposition of Connie Alms, p. 134, ln. 5 to p. 136, ln. 16). 23 59. Ms. Simonton had significantly less experience in the computer security

24 industry than Ms. Alms. (Exh. 1, Deposition of Connie Alms, p. 120, ln. 19 to p. 121, ln. 25 12). 26 / / /
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60.

The more experienced members of the security department taught Ms.

2 Simonton rudimentary tasks to perform on the various platforms such as deleting a log-on 3 ID. Ms. Simonton did not know how to trouble shoot a system, however. (Exh. 1, 4 Deposition of Connie Alms, p. 121, ln. 14 to p. 122, ln. 11; p. 134, ln. 5 to p. 135, ln. 10). 5 61. Colleen Covey was employed as an Information Security Analyst by

6 AdvancePCS from approximately May 2000 until March 2002. (Affidavit of Colleen Covey, 7 ¶ 4, attached hereto as Exh. 9). Ms. Covey worked closely with and interacted on a daily 8 basis with both Ms. Alms and Ms. Simonton within the security department of AdvancePCS 9 in Scottsdale. (Exh. 9, Affidavit of Colleen Covey, ¶ 5). 10 62. Ms. Simonton spent a good portion of her time as a security analyst deleting

11 ID's for computer access and later using memo driven programs to complete her job related 12 tasks. The tasks assigned to Ms. Simonton were considered entry level tasks for someone 13 holding an analyst position in the computer security industry. (Exh. 9, Affidavit of Colleen 14 Covey, ¶ 8). 15 63. Ms. Simonton was not as qualified as Ms. Alms for the position of Senior

16 Information Security Analyst. (Exh. 9, Affidavit of Colleen Covey, ¶¶ 15-16). 17 64. Ms. Simonton also had reliability problems while she was working in the

18 security department in Scottsdale. On more than one occasion, Ms. Simonton failed to 19 answer her pager when she was designated to be the individual on call. The failure to answer 20 a pager was openly discussed at departmental meetings attended by Ms. Simonton. Even 21 after this issue was discussed in departmental meetings, Ms. Simonton failed to correct this 22 deficiency and did not consistently answer her pager while on call for the department. (Exh. 23 9, Affidavit of Colleen Covey, ¶¶ 11-14). 24 65. In explaining what steps he took to select the person who would stay in

25 Scottsdale, Mr. Wenban claimed: "I spent about a half a day with each staff member at their 26 desk just learning their jobs, letting them ask me questions, I could ask them, so I could get
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1 some kind of rapport with them and get to understand them better." (Exh. 5, Deposition of 2 Rick Wenban, p. 55, ln. 24 to p. 56, ln. 13; p. 59, ln. 7-20; p. 66, ln. 18-22). Although Mr. 3 Wenban claims that he met with Ms. Alms for half a day, (Exh. 5, Deposition of Rick 4 Wenban, p. 67, lns. 4-14), he could recall nothing specific about the meeting. (Exh. 5, 5 Deposition of Rick Wenban, p. 68, lns. 2-9). Mr. Wenban claimed that these half day 6 meetings occurred before the job posting. (Exh. 5, Deposition of Rick Wenban, p. 68, lns. 7 2-6). 8 66. Prior to Ms. Alms applying for the posted position in Scottsdale, she had only

9 one brief conversation with Mr. Wenban in her cubicle that lasted maybe ten minutes. (Exh. 10 1, Deposition of Connie Alms, p. 109, ln. 23 to p. 110, ln. 12). Mr. Wenban did not sit down 11 with Ms. Alms in her cubicle for several hours as he claimed in his deposition. (Exh. 1, 12 Deposition of Connie Alms, p. 110, lns. 13-17). The day that Mr. Wenban came into Ms. 13 Alms cubicle, he was in a hurry because he was flying home. He spent no more than ten 14 minutes in her cubicle. He never came back and talked to her. (Exh. 1, Deposition of Connie 15 Alms, p. 110, lns. 18-23). While in her cubicle, Mr. Wenban saw the many certificates of 16 training and experience on various platforms that Ms. Alms had posted on the walls of her 17 cubicle. (Exh. 1, Deposition of Connie Alms, p. 114, lns. 20-24; Exh. 4, Affidavit of Connie 18 Alms, ¶ 2 and Exh. A). 19 67. Mr. Wenban also only spent a few minutes with Sally Lay, a co-worker of Ms.

20 Alms, whose cubicle was on the other side of the aisle from Ms. Alms' cubicle. (Exh. 1, 21 Deposition of Connie Alms, p. 144, ln. 15 to p. 145, ln. 11). 22 68. By contrast, Mr. Wenban spent quite a bit of time with Ms. Simonton. (Exh.

23 1, Deposition of Connie Alms, p. 144, lns. 15-25). He admitted that his selection of Mr. 24 Simonton for the position was based on subjective decisionmaking. (Exh. 5, Deposition of 25 Rick Wenban, p. 94, lns. 6-20). He also admitted that he never personally saw Ms. Simonton 26 suspend or create ID's on all platforms. (Exh. 5, Deposition of Rick Wenban, p. 114, lns. 9Case 2:04-cv-00332-JWS Document 76 Filed 07/21/2006 25 Page 25 of 30

1 22). In fact, after he selected Ms. Simonton for the position, he sent her for Tandem 2 Guardian/Safeguard training. (Exh. 5, Deposition of Rick Wenban, p. 115, ln. 5 to p. 116, 3 ln. 8). 4 69. Mr. Wenban claimed that he allocated 90 minutes for each applicant interview

5 for the Scottsdale position. He could not recall, however, how much time he spent with each 6 person, as some interviews were faster than others. (Exh. 5, Deposition of Rick Wenban, p. 7 133, lns. 10-14). 8 70. After Ms. Alms applied for the Scottsdale position that she had previously held,

9 she had a conversation with Mr. Wenban that she did not describe as an interview. During 10 this conversation, Mr. Wenban never talked or asked about Ms. Alms' qualifications. She 11 testified, "[h]e looked at my e-mail that I had sent him and he went like this [indicating] and 12 he says, `Oh, you know DB2.' And that's the only reference he ever made to my 13 qualifications." (Exh. 1, Deposition of Connie Alms, p. 110, ln. 24 to p. 111, ln. 11). Mr. 14 Wenban never directly asked Ms. Alms if she had experience working on the various 15 software platforms. (Exh. 5, Deposition of Rick Wenban, p. 132, lns. 9-15). 16 71. Ms. Alms never told Mr. Wenban that she preferred to continue working with

17 ACF2. (Exh. 1, Deposition of Connie Alms, p. 111, lns. 12-17). 18 72. Mr. Wenban never asked Ms. Alms any questions during this conversation.

19 (Exh. 1, Deposition of Connie Alms, p. 111, ln. 12 to p. 112, ln. 6). 20 73. On or about March 28, 2002, Ms. Alms was called into a meeting with Mr.

21 Wenban and two representatives from the human resources department of AdvancePCS. 22 (Exh. 5, Deposition of Rick Wenban, p. 137, ln. 7 to p. 138, ln. 2; Exh. 4, Affidavit of Connie 23 Alms, ¶ 12). During this meeting, Ms. Alms asked Mr. Wenban, "how can you justify giving 24 an entry level person my position?" Mr. Wenban responded, "I do not have to justify that." 25 Ms. Alms then asked, "but she doesn't have the qualifications." Mr. Wenban responded, 26 "Ralph [Poore] and I are going to mentor her." Then, Ms. Alms said, "Oh, does that mean
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1 I'm too old to be mentored?" After this, Mr. Wenben and none of the human resources 2 representatives said anything. (Exh. 1, Deposition of Connie Alms, p. 90, ln. 21 to p. 92, ln. 3 1; p. 92, lns. 7-11; Exh. 4, Affidavit of Connie Alms, ¶ 12). 4 74. AdvancePCS reported to the EEOC, "[a] 25-year-old female was hired into the

5 position of Senior Information Security Analyst due to her extensive knowledge of various 6 platform/systems and her impressive interpersonal skills." (Exh. 6 at EEOC103). 7 75. AdvancePCS also reported to the EEOC, "[a]lthough Ms. Alms had been

8 performing well in her previous position as a Senior Information Security Analyst, the 9 individuals selected also had high performance scores and had been employed as long or 10 longer than Ms. Alms." (Exh. 6, at EEOC104). 11 76. Contrary to AdvancePCS's representation to the EEOC, Mr. Wenban made it

12 clear that he did not even consider Ms. Alms for the open position in Scottsdale. In 13 connection with an EEOC questionnaire completed by Ms. Alms, Mr. Wenban was asked if 14 he disagreed with any of the statements Ms. Alms made. Mr. Wenban responded, in part, 15 "well, the first - - the biggest one is that she thought she was in competition for that position 16 with Anne, and she wasn't. She was never on the list high enough to be even considered at 17 all." (Exh. 5, Deposition of Rick Wenban, p. 126, ln. 20 to p. 127, ln. 7). Mr. Wenban 18 testified that he could not envision any circumstances in which Ms. Alms would have been 19 offered the position. (Exh. 5, Deposition of Rick Wenban, p. 135, lns. 4-7). 20 77. Mr. Wenban further testified that Ms. Alms "wasn't in competition with Anne,

21 . . . [T]here was never a chance for Connie to be getting that position, . . . I never thought if 22 it went past the top two people, . . . she wasn't even in competition." (Exh. 5, Deposition 23 of Rick Wenban, p. 148, lns. 10-17). 24 78. Peggy Leary was a co-worker of Ms. Alms who worked in the security

25 department of AdvancePCS in Scottsdale. Ms. Leary also applied for the open position. 26 (Exh. 5, Deposition of Rick Wenban, p. 138, lns. 5-8; p. 139, ln. 22 to p. 140, ln. 1).
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1 Although Ms. Leary applied for the position, she too was one of the individuals that Mr. 2 Wenban did not consider for the position. (Exh. 5, Deposition of Rick Wenban, p. 141, lns. 3 20-24). 4 79. On April 22, 2002, Ms. Alms filed a charge of discrimination with the EEOC

5 (April 22, 2002 charge of discrimination, attached hereby as Exh. 10). Marie M. Rojas of 6 the EEOC conducted an on site interview of Peggy Leary on March 12, 2003. Ms. Leary 7 reported to the EEOC that Ms. Alms had more experience and more technical knowledge 8 than Ms. Simonton. (Exh. 11). 9 80. Ms. Leary believed that Ms. Simonton and Ms. Alms were the same regarding

10 interpersonal skills and temperament. (Exh. 11). 11 81. Regarding critical thinking, Ms. Leary reported that Ms. Alms was better.

12 (Exh. 11). 13 82. Ms. Leary reported that both were equally adept at working independently.

14 (Exh. 11). 15 83. Regarding cross-training experience, Ms. Leary reported that Ms. Alms was

16 a good team worker. (Exh. 11). 17 84. Ms. Leary reported that she was required to cross-train Ms. Simonton, that she

18 did not cross-train Ms. Alms and that Ms. Alms had prior experience with other companies. 19 She reported that Ms. Simonton had been trained in various platforms but not as an 20 administrator. Rather, she had been trained to help out the administrators. Ms. Leary 21 observed that Ms. Alms was enthusiastic and more professional than Ms. Simonton. (Exh. 22 11 at EEOC094). 23 85. On April 30, 2003, the EEOC issued a determination on the merits of the

24 charge. In the Determination, the EEOC determined that Ms. Alms was a member of the 25 protected age group under the ADEA, and that she bid on and was not selected for the Senior 26 Information Security Analyst position, that she met all the requirements for the position, and
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1 that the Senior Information Security Analyst position was available. (April 30, 2003 2 Determination, attached hereto as Exh. 12). 3 86. The EEOC also found that Ms. Alms had more prior relevant experience than

4 Ms. Simonton, and that she already had held the position unlike the 25 year old selectee, and 5 she had performed well in the position. The EEOC further determined that AdvancePCS' 6 proffered non-discriminatory reasons for depriving Ms. Alms of the senior information 7 security analyst position did not withstand scrutiny. Coupled with evidence of bias against 8 older experienced professionals, the EEOC found it was reasonable to infer that 9 AdvancePCS' stated reason was a pretext to unlawful discrimination. (Exh. 12). 10 87. Defendant AdvancePCS, through its legal counsel, erroneously reported to the

11 EEOC that Ms. Alms was 51 years old at the time her employment with AdvancePCS ended. 12 (Exh. 6, p. 3). 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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DATED this ____ day of July, 2006. JACKSON WHITE

/s/ Michael R. Pruitt By: Michael R. Pruitt, No. 011792 40 North Center Street, Suite 200 Mesa, Arizona 85201 Attorneys for Plaintiff

1 I hereby certify that I electronically transmitted the attached document to the Clerk's Office using the 2 CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following if 3 CM/ECF registrants, and mailed a copy of same to any non-registrants this _____ day of July, 2006: 4 Steve G. Biddle, Esq. 5 LITTLER MENDELSON 2425 East Camelback Road, Suite 900 6 Phoenix, Arizona 85016 Attorneys for Defendant 7 8 COPY of the foregoing mailed this ____ day of July, 2006, to: 9 The Honorable John W. Sedwick 10 United States District Court 222 West 7th Avenue, #4 11 Anchorage, AK 99513 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Case 2:04-cv-00332-JWS Document 76 Filed 07/21/2006 30 Page 30 of 30

/s/ Michael R. Pruitt
F:\ABC\Alms\Defendants.MSJ\SOF.Amended.wpd