judgment, enables the Court to grasp the full picture of Yonehara’s employment at American,
and determine whether there are genuine issues of material fact for trial. However, the Court
sees no need to strike these paragraphs; therefore, Plaintiff's motion to strike these paragraphs is

denied.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if, “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of law.” Schuster

vy. Lucent Technologies, Inc., 327 F.3d 569, 573 (7th Cir. 2003) (quoting Fed. R. Civ. P. 56(c)).
When evaluating a motion for summary judgment, the Court views the evidence in the

light most favorable to the non-moving party and makes all reasonable inferences in her favor.

See Haywood vy. Lucent Technologies, 323 F.3d 524 (7th Cir. 2003). The Court accepts the non-

moving party’s version of any disputed facts, but only if those facts are supported by relevant,

admissible evidence. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.

1996).

The moving party has the burden of demonstrating the absence of genuine issues of
material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hedberg v. Indiana
Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). If the moving party meets this burden, the non-
moving party must set forth specific facts that demonstrate the existence of a genuine issue for

trial. Rule 56(e); Celotex, 477 U.S. at 324. To successfully oppose the motion for summary

judgment, the non-moving party cannot rest on the pleadings alone but must designate specific

-19-


on the list. The Chicago Passenger Sales Levels 3 and 4 layoff total matched the company target
of ten percent. The employees terminated in that group were Yonehara and Greg Quadrini.

It was Parker, Yonehara’s immediate supervisor, who prepared the 2001 Reduction In
Force Employee Profile Sheet for Yonehara. Yonehara was graded “Poor,” the lowest category,
in three of the four performance criteria, including: (1) Performance; (2) Knowledge, Experience,
Technical Skills; and (3) Criticality. He was graded “Below Expectations” in Abilities, the
fourth criterion. Ultimately, it was Parker who presented Yonehara with a form termination
letter on September 28, 2001.

F_ Jennifer Ballard Becomes the Chicago Pacific Sales Specialist

Jennifer Ballard, a 48 year old Asian woman of Taiwanese national origin, was the
Chicago Pacific Sales Specialist who eventually replaced Yonehara. Ballard was a Pacific Sales
Specialist prior to the September 28, 2001 reduction in force; however, her position in San
Francisco was eliminated. Ballard became the Chicago Pacific Sales Specialist on October 18,
2001. American contends that Ballard was relocated to Chicago because she was a strorig
performer. American contends that it needed to relocate Ballard to the Chicago Pacific Sales
Specialist position because it needed to meet the ongoing workload with the remaining

workforce.

-13-



300-day limit begins to run when the defendant has taken the action that injures the plaintiff and
when the plaintiff knows that she has been injured). American notes that Yonehara filed his
charge of discrimination on November 30, 2001. Therefore, American contends, any claim that
arose prior to February 2, 2001 is time-barred. Thus, the Court will address: (1) whether an
unreasonably onerous workload, continuous criticisms of work performance and poor
performance reviews can be considered “adverse employment actions,” and if so, (2) whether

these actions are time barred.

A._“Adverse Employment Actions”

The Seventh Circuit has stated that to be considered “adverse,” an employment action
must constitute a material, adverse change in employment, including such actions as discipline,
demotion, termination, denial of wage or employee benefit increases (or given less opportunities
for such increases), had job responsibilities reduced, or was made to perform more arduous tasks.
See Haugerud v. Amery Sch. Dist., 259 F.3d 678, 692 (7th Cir. 2002). The Seventh Circuit has
also noted that, “mere unhappiness and inconvenience are not actionable...” Haywood v. Lucent
Technologies, Inc., 323 F.3d 524, 532 (7th Cir. 2003) (citing Smart v. Ball State Univ., 89 F.3d
437, 441 (7th Cir. 1996). “Ata minimum, the employee must be able to show a quantitative or
qualitative change in the terms or conditions of employment.” Haywood, 323 F.3d at 441 (citing
Patt v. Family Health Sys.. Inc., 280 F.3d 749, 753 (7th Cir. 2002)). Specifically, the Seventh
Circuit has stated that, “negative employment evaluations, without some tangible job
consequences such as being put on probation or being threatened with probation, do not

constitute an adverse employment action.” Smart, 89 F.3d at 442. Consequently, Yonehara’s

-23-



with American, he complained about his excessive workload.’ Plaintiff's supervisors
modified his territory so that his responsibilities were limited to the Chicago, and extensive travel
was no longer required.

In approximately September 1999, Josie Tuzzolino (“Tuzzolino”) became a District Sales
Manager for Chicago Passenger Sales.’ Tuzzolino began working for American in 1989, She
had held numerous sales positions with the company, including Passenger Sales Team Leader,
Area Sales Manager and Manager Sales Support. In October 1999, Yonehara began reporting
directly to Tuzzolino.

B_American’s Issues With Yonehara’s Performance

Defendants cite numerous aspects of Yonehara’s performance that it feels were deficient,
and eventually led to his discharge when American engaged in a reduction in force (“RIF”) on
September 28, 2001. One of the first evaluation’s of Yonehara’s job performance after Tuzzolino
became his supervisor occurred in January 21,2000. However, because Tuzzolino was only
recently assigned as Yonehara’s supervisor, the evaluation was conducted by Aichele. The
review stated Yonehara’s development needs included: (1) understanding details of American’s
programs; (2) reporting on local marketplace competition; (3) using available technology; and (4)

developing good communication and relationships with headquarters and the Pacific Sales Team.

“ Approximately eight months after he was hired by American, Yonehara also
complained about his excessive workload.

‘Tuzzolino is a Caucasian female of Italian parentage, born in the United States, and is
34 years old.

-4.



facts in affidavits, depositions, answers to interrogatories, or admissions that establish that there

is a genuine triable issue. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

ANALYSIS
I. Legal Standard for Employment Discrimination Claim
As previously noted, Yonehara has filed a Complaint in three counts alleging that his former
employer Defendant American Airlines, Inc. (hereinafter “Defendant”) discriminated against him
based upon his national origin, sex, race and age by subjecting him to a continuing pattern of
harassment and disparate treatment terms and conditions of employment, which culminated in
his termination on September 28, 2001. Yonchara brings his national origin, sex and race claims
pursuant to 42 U.S.C. § 2000¢ et seg. (hereinafter referred to as “Title VII”),” Title VII provides
that:
It shall be unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or to otherwise to discriminate
against any individual with respect to his compensation, terms, conditions or privileges of
employment, because of such individual’s race, color, religion, sex or national origin; or
(2) to limit, segregate or classify his employees or applicants for employment in any way
which would deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such individual’s race,

color religion, sex or national origin.

° Plaintiff also brings his race discrimination claim pursuant to 42 U.S.C. § 1981.

-20-



support of Yonehara’s claims. Consequently, they are relevant in analyzing Yonehara’s

September 28, 2001 discharge claim.

II. Has Yonehara Established a Prima Facie Case of Employment Discrimination?

As stated, in order to establish a prima facie case in the context of an RIF, Yonehara must
show that: (1) he was in a protected class; (2) he performed his job well enough to meet his
employer’s legitimate expectations; (3) despite his performance, he was discharged; and (4) in
Title VII cases, his employer sought a replacement for him, or in the case of an ADEA claim, the
employer treated substantially younger, similarly situated employees more favorably, The
element of contention among the parties is the second element. As stated, American contends
that prior to the RIF, Yonehara was not meeting its legitimate expectations. American contends
that Yonehara: (1) failed to adequately perform in at least five of the basic job functions of the
Pacific Sales Specialist; (2) was noted as having significant job performance deficiencies by
Aichele in 1999, by Tuzzolino in January 2000, and by Parker in May 2001, and (3) was the
lowest ranked of Level 3 and Levei 4 Managers when ranked the reduction in force.

Yonehara disputes Defendant’s contention that he was not performing to its legitimate
expectations. Rather, Yonehara contends that his supervisors sought to negatively impact his
work environment, and ultimately, terminate his employment based on the fact that he was a 63
year-old Asia male of Japanese national origin. Therefore, while Yonehara does not dispute the
fact that he received negative performance reviews and evaluations, he disputes the accuracy of
those reviews and evaluations. Plaintiff also asserts (although Defendant contests this assertion)

that Yonehara’s territory generated a significant increase in revenue between August and

-26-


facie case, in order “to reflect the reality of the workplace.” Id. (Because the employer has
removed the position entirely...it makes little sense to require a plaintiff to meet the fourth prong
of the McDonnell Douglas test, in which the plaintiff must demonstrate that the position
remained open or was filled by someone who was not a member of the protected class.” Id.).

In the context of an RIF case, in order to establish a prima facie case of discrimination,
Yonehara must show that: (1) he was in a protected class; (2) he performed his job well enough
to meet his employer’s legitimate expectations; (3) despite his performance, he was discharged;
and (4) in Title VII_cases, his employer sought a replacement for him, or in the case of an ADEA
claim, the employer treated substantially younger, similarly situated employees more favorably.
Id. (internal citations omitted).

Il. Are Yonehara’s Claims Actionable Under Title VII and the ADEA?

In construing his claim, Yonehara alleges that Aichele and Tuzzolino conspired to
discriminate against him beginning in July 2000 and that at some point in May 2001, Parker
joined the conspiracy. (See Yonehara Compl., J 15). Yonehara contends that this disparate
treatment included: (1) unreasonably onerous workloads; (2) constant, unwarranted criticism of
his job performance; and (3) poor performance reviews. First, American contends that these
allegations of disparate treatment cannot be considered “adverse employment actions” for
purposes of Title VII and the ADEA, because Yonehara has not shown a quantitative or
qualitative change in his employment. Second, Defendants note that Title VII and the ADEA
state that a plaintiff must file a charge of discrimination with the EEOC, or equivalent state
agency, within 300 days after the “alleged unlawful employment practice.” 42 U.S.C. § 2000e-

5(e)(1); see also Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001) (stating that the

-22-



interrogatories, Plaintiff listed Dan Procknow (Human Resources Manager), as someone who
may have knowledge or information pertaining to Plaintiff's employment, and alleged
discriminatory treatment and harassment by Defendants. In addition, by stating that he is
employed as a Field Labor Principal for American, Procknow establishes an adequate foundation
for his testimony on American’s reduction in force. Consequently, Plaintiffs motion to strike
the aforementioned paragraphs is denied.

TI. Yonehara’s Motion to Strike Paragraphs 72 and 108

Yonehara contends that paragraphs 72 and 108 improperly mix argument with fact.
Plaintiff states that paragraph 72 is argumentative by stating that the Chicago Sales position did
not need to be posted “because it was not a job vacancy.” In addition, Yonehara contends that
paragraph 108 is improperly argumentative in asserting that “[t]here is no requirement that an
employee must sign their performance review before it becomes part of their personnel file.”

A look at the record shows that these statements were asserted by American personnel,
and therefore cannot be deemed argument of counsel. Plaintiff may refute these statements, and
he may (and has) properly countered these statements with his additional facts in opposition to
Defendant’s motion for summary judgment. Consequently, the Court finds that these paragraphs
can properly be construed as supported facts, and not improper argument. As such, Plaintiff's

motion to strike the above-mentioned paragraphs is denied.

IV.. Yonehara’s Motion to Strike Paragraph 105
Yonehara contends that paragraph 105, which attempts to set forth verbatim Tuzzolino’s

evaluation of Yonchara, misrepresents the content of that document by omitting the more

-17-



Thank you for providing me the extensive 2001 Business Plan that I’ve
requested. This information supplies me with the very specific steps you
plan to take throughout 2001 with each customer base (corporate agency,
internal HDQ Pacific Sales). By implementing the steps you’ve provided
and clearly keeping your focus to better understand your job
responsibilities, you should be able to move the dial, in your territory
performance, in a favorable direction.

Chicago is a very competitive marketplace with many carrier options.

_When the role of the Pacific Specialist was created in the Central Division,
you were provided clear expectations to assist in gaining incremental
revenue and share from our biggest customers.

Over the last two years, not only has there been a decrease in AA revenue
and share with the majority of your territory, to my knowledge you have
not been as visible within your territory creating plans to beat OA carriers
as you should be.

It is evident that you’ve been clearly thinking through the process of how
to work more effectively within your territory. By creating a strategic
business plan, you should be able to make a significant impact within your
account base through sharing numbers and implementing programs with
your customers to improve AA share. This will enhance your relationship
while showing your value within the marketplace.

Melissa Parker and I will be reviewing this plan with you after 60 days to
discuss your progress. At that time I would like you to bring in any
specific paperwork that provides us the needed documentation to ensure
you are following your plan. I would also expect to see share/revenue
numbers for your top accounts on a month over month basis. I realized
there will not be a significant shift in share, however, the dial should begin
moving in a favorable direction. If after 60 days no progress is made,
Melissa and/or will be speaking with you to discuss other interests or
opportunities within American Airlines,

Eventually, in March or April 2001, Yonehara began reporting to Parker. On May 31,
2001, Parker reviewed Yonehara’s progress. Parker was not pleased with Yonehara’s progress

under the Business Plan, and did not feel as if he properly executed the steps within the plan.

-9-



CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment is DENIED.

Enter:

wr nibw

David H. Coar
United States District Judge

Dated: September 30, 2004

~32-



performance problems while employed with American. While American contends that Pedian’s
performance problems were not as substantial, and that she worked to resolve her issues, plaintiff
has provided sufficient evidence to raise a genuine issue of material fact concerning whether
American did indeed treat Yonehara more harshly for perceived workplace difficulties, As an
example, American states that Pedian was willing to work through any performance issues and
accept responsibility, while Yonehara was not. However, Defendants and Plaintiffs have both
referenced Yonehara’s stated willingness to devise and execute a Business Plan after his
November 2000 performance review. It appears, then, that there is at least one instance of
Yonehara actively taking steps to work though his job performance deficiencies, Consequently,
because Yonehara has raised a genuine issue of material fact as to whether American applied its
legitimate expectations in a disparate manner, Yonehara has established a prima facie case of
employment discrimination.

In addition, American contends that Yonehara should not be considered similarly situated
to Pedian, because although she was a Level 4 Manager, she was not a Pacific Sales Specialist,
and thus, cannot be considered similarly situated to Yonehara. However, it is undisputed that at
the relevant time of inquiry, when American had to engage in its reduction in force, all Level 3
and 4 Passenger Sales employees were ranked together. Thus, for purposes of determining the
most crucial decision in this case, who would be terminated, all Level 3 or 4 Chicago Passengers

sales employees are deemed “similarly situated.”

-29.



informed Tuzzolino of his dissatisfaction with Yonehara’s performance. Defendant also
maintains that Yonehara did not have a working knowledge of the data programs, such as
SmAArts and DataNet (tools in which Plaintiff could measure performance within an individual
account), and he often needed retraining to understand the reports and contracts. Defendants also
contend that Yonehara had difficulty getting his agencies to renew or resign programs, American
contends that Yonehara could not explain to his accounts why American would require them to
improve performance before they would receive a payment or earn money on the program.

C._Yonehara’s 2000 Performance Review

One of the key incidents that American cites in support of its motion for summary
judgment is Yonehara’s 2000 performance review, and the lack of improvement in Yonenhara’s
performance, subsequent to that review. Yonehara’s 2000 performance review occurred on
November 22, 2000. Although Tuzzolino was the person who completed the evaluation, she
reviewed in the information with Aichele, and shared the information with Obermueller.
Yonehara was ranked “Excellent” in two categories, “Strong” in four categories, “Adequate” in
23 categories, and “Developmental Needs” in nine categories. Tuzzoliono cited developmental
needs in the following areas: (1) takes responsibility for work and resources; (2) accounts for the
impact of strengths and weaknesses on their work; (2) open and approachable; (3) expresses self
clearly when speaking; (4) delivers convincing message; (5) attentively listens to others; (6)
collaborates with others to get best results; (7) excels in required job skills and knowledge; and
(8) understands how job relates to others.

On the evaluation, the employee was also required to rate their own job performance as

part of a “self-evaluation.” Yonehara’s self-evaluation was very different from Tuzzolino’s

-6-



Plaintiff was also told that he needed continued development in his oral communication skills
(tone), teamwork, technical skills, quantitative/financial skills, flexibility and leadership.®

In September 2000, Yonehara was required to make a Pacific Territory quarterly review
presentation. Aichele contends that he needed additional information from Yonehara because
some of the items presented were generic, and some issues were not addressed that should have
been. In addition, Aichele was not in complete concurrence with Yonehara’s answers and
explanations to his questions about the September 2000 Pacific Territory quarterly review.

Generally, Plaintiff's supervisors at American believed that Yonehara’s performance was
substandard. However, American contends that they constantly attempted to train, coach and
counsel Yonehara to be successful, but Yonehara was never able to gain the skills to perform his
job competently. American contends that part of Yonehara’s job was to bridge cultural
differences in the marketplace. American states that Yonehara could identify differences, but did
not identify solutions to bridge those differences in order to bring business to the company.
American also asserts that Yonehara was unable to properly use travel authorization certificate
technology, and had to ask others to do that work for him. Defendant also maintains that
Yonehara repeatedly had problems communicating with his coworkers, and did not interact with
other Pacific Sales Specialist at meetings. In joint sales calls, Obermueller observed that
Yonehara was not familiar with American’s programs. Obermueller also received information
from others that Plaintiff had communication problems. Based on his observations, Obermueller

felt that Yonehara’s quarterly Pacific Territory presentations were poor and substandard, and he

6 Yonehara was also allowed to prepare portions of the evaluation as part of a self-
evaluation process, wherein Yonehara described his performance as “excellent” or “strong” in
almost all categories.

5.



favorable self-ratings completed by Yonehara which were part of the document. Furthermore,
Yonehara notes, paragraph 105 is nine pages in length, which he contends is contrary to Local
Rule 56.1's requirement that a moving party’s statement “shall consist of short numbered
paragraphs...”

While Defendant could have included Yonehara’s self-evaluation in its statement of facts,
there was no requirement that it needed to, as American presented this evidence to establish how
Tuzzolino, as Yonehara’s supervisor, felt he was performing. Further, Yonehara provided the
full evaluation to the Court; therefore, the Court had both Tuzzolino’s evaluation and Yonehara’s
self-evaluation at its disposal when evaluating Defendant’s motion for summary judgment. In
addition, while the Court notes that ordinarily, one fact should not be nine pages in length, and
parties should take the necessary steps to organize their facts in a way that is consistent with the
local rules, the Court does not see this misstep by Defendant as a reason to strike paragraph 105
from the record. Consequently, the Court will not strike paragraph 105.

V. Motion to Strike Paragraphs 112 and 113

Yonehara contends that Paragraph 112 misrepresents the contents of Tuzzolino’s review,
by omitting portions of the document that reflect favorably upon Yonehara. Similarly, Yonehara
contends that paragraph 113 takes statements out of their specific context to make them appear to
be broader criticisms of Yonehara’s performance than they were intended to be in the document
from which they were excerpted. As with the discussion of Yonehara’s motion to strike
paragraph 105, Defendants could have opted (but were not required) to include facts in these
paragraphs that could be seen as more favorable to Yonehara. And as stated when discussing

those paragraphs, Plaintiff's facts filed in opposition to Defendant’s motion for summary

-18-



D. American Takes Steps to Improve Yonehara’s Performance

After Yonehara’s evaluation, American concluded that it needed to take certain steps to
help Yonehara focus on his job functions. For example. in order to help him improve his job
performance, American contends, Yonehara continued to report to Tuzzolino, even after Melissa
Parker (“Parker”) replaced Tuzzolino as the Chicago Passenger District Sales Manager in
January 2001. On January 8, 2001, Yonehara prepared a written “Commitment,” which he
submitted to Tuzzolino on January 8, 2001; other employees reporting to Tuzzolino or Parker
were not required to submit a Commitment form. Tuzzolino, however, was pleased with
Yonehara’s written “Comitment” and felt that it showed that Yonehara was serious about his
work at American.

In addition, American took certain substantive steps to attempt to help Yonehara improve
his performance. American has an internal program called “Peak Performance Through
Commitment,” which is a step process of advisories to an employee which may culminate in a
career decision day, or termination. American contends that Yonehara was not put through the
Peak Performance Through Commitment Program because the goal was to assist him in further
developing his skills and improve his performance in his industry (Yonehara refutes this
contention). Instead, in a follow-up to the 2000 evaluation, Yonehara was required to prepare a
formal business plan, in order to enable him to help him focus on his job functions and “help him
work smarter.’ Yonehara was the only employee formerly under Tuzzolino’s supervision, that
was required to submit a business plan. Yonehara submitted his business plan on March 9, 2001,
and on March 19, 2001, also executed a memorandum regarding the business plan and his future

performance. In response to the business plan, Tuzzolino sent Yonehara an memo, which stated:

-8-



negative performance evaluations cannot be considered “adverse employment actions” for
purposes of his prima facie case. There is no indication that Yonehara received probation, the
threat of probation, or a demotion because of his negative evaluations. In fact, Yonehara’s
supervisors collaborated with him to implement a business plan to improve his performance. In
fact, there is no indication that but for the reduction in force, Yonehara would have been
terminated. Consequently, his performance reviews are not considered adverse employment
actions for purposes of Title VII and the ADEA.

Second, Yonehara contends that he was subjected to more onerous deadlines and
subjected to a heavier workload that other Level 3 and 4 Sales Managers. Yonehara contends
that on July 24, 2000, Tuzzolino told Plaintiff that in addition to his other responsibilities, he
needed to prepare weekly calendar reports, weekly sales call logs and weekly accomplishment
reports, and submit all of this information to Tuzzolino. Yonehara contends that in addition to
his weekly reports, he was also required to prepare a weekly sales call. Yonehara contends that
none of the other employees in the Chicago Passenger Sales Office were required to prepare
weekly sales call logs or weekly accomplishment reports. American disputes all of Yonehara’s
contention except the fact that Yonehara was required to prepare a weekly sales call log, as
American felt that this would assist Yonehara in focusing upon his priorities. However, it is
undisputed that Yonehara found preparing the daily call log unhelpful, and thought it was time
consuming and interfered with and added to, rather than alleviated, his work load. Construing all
disputed facts in the light most favorable to Plaintiff, his heavier workload and job requirements
could be seen as an adverse employment action, as the qualitative conditions of his employment

were affected. Therefore, assuming that Yonehara had a more onerous workload than other

-24-



‘Minute Order Form (06197)

“United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge David H. Coar than Assigned Judge
CASE NUMBER 02 C 8561 DATE 9/30/2004
CASE Akiyoshi Yonehara vs. American Airlines, Inc.
TITLE —
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]

Defendant’s Motion for Summary Judgment [Doc. No. 14]

() Qo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) o Answer brief to motion due, . Reply to answer brief due.
(4) Q Ruling/Hearing on set for at
(5) Oo "Status hearing[held/continued to] [set for/re-set for} on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at :
() Oo Trial{set for/re-set for] on _ at
(8) a {Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) OlLocal Rule 41.1 OFRCP41(a)(1) [ FRCP41(a)(2).
(10) ME (Otherdocketentry] For the reasons set forth in the attached memorandum and order, Defendant’s
motion for summary judgment [Doc. No. 14] is DENIED. 1)

(11) Ml [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber of notions

Notices mailed by judge’s staff.

SEP 3.9 200

Notified counsel by telephone. date dockered
X_ | Docketing to mail notices.

Copy to judge/magistrate judge. fisiag “S-9

courtroom ,
sif(le) deputy's i. {2 FL
initials Hs aan trey
Date/time received in
central Clerk's Office 7 mailing deputy initials

Ted



American. In addition, the entire United States air transportation system was shut down for
several days following September 11, 2001, and that act immediately cut off all revenues to
domestic commercial airlines in the aftermath of the attacks. American contends it suffered
tremendous and permanent losses of revenue and passenger traffic since the attacks. American
contends that because. of the events of September 11, 2001, it was forced to reduce its flight
schedule by 20 percent. In addition, American contends, it was forced to reduce its operations
and workforce by approximately 20,000 employees across all departments.

As part of this effort, American contends, it concluded that it needed to reduce its
management ranks and support staff by 10 percent to meet the needs of its reduced capacity. In
anticipation of the immediate reduction, and to give its employees as much notice as possible,
American sent a letter to all employees on September 19, 2001. The letter advised all employees
that the company anticipated an employment loss of unknown reach and duration to occur in the
two-week period following September 24, 2001. The employment loss would be a massive
reduction in force scheduled to take place on September 28, 2001. Consequently, American’s
management had approximately seven days (from September 19 to September 25, 2001) in which
to make their layoff decisions in time for final announcement on September 28, 2001.

Managers were asked to rank their employees in their affected work groups by evaluating
them with reference to four factors: (1) Performance; (2) Knowledge/Expertise/Technical Skills;
(3) Abilities; and (4) Criticality. American contends that once employees in the affected work
groups were ranked, the managers were told to select for reduction the lowest-ranked employee

in the group until they met their target number.

-ll-



Parker felt that Yonehara: (1) failed to supply data that met the requirements of his business
plan; (2) took no action to improve quantitative performance; (3) did not improve share with his
Top 7 agency producers; (4) lacked understanding of his role or the objectives of his job
description; (5) ignored prior coaching and counseling on how to use American resources
available to him; (6) refused to use the assistance of the Pacific Corporate Specialist to secure
new opportunities; (7) did not understand the principles of CCBS [creating competitive business
solutions]; (8) struggled with technical skills; (9) failed to use a DataNet report in his top
accounts, even though he had been previously trained; (10) contacted a competitor to obtain
information that was readily available from American; and (11) could not provide information
critical to the success of his market.

Finally, Parker observed Yonehara on a joint sales calls on September 8 and 9, 2001. She
noted that during the call, Yonehara had no specific discussion topics or performance reviews for
the client. In her view, Yonehara used the joint calls to provide agencies the opportunity to
request specific programs that had been previously denied by Obermueller. According to Parker,
Yonehara made no response to his customers’ requests, remained silent, and waited for Parker to
reply. Parker felt that Yonehara had encouraged his accounts to bring up these previously denied

requests.

E. American’s 2001 Reduction in Force
Yonehara was terminated on September 28, 2001, in a reduction in force following the
tragic events of September 11, 2001. American was directly impacted by September 11, 2001,

because two of the four jets involved in the September 11, 2001 terrorists’ attacks belonged to

-10-



As an initial matter, the Court notes that, “the federal anti-discrimination laws do not
authorize judges to sit as kind of ‘super-personnel department’ weighing the prudence of

employment decisions.” Grayson, 308 F.3d at 820 (citing Gleason v. Mesirow Financial, Inc,

118 F.3d 1134, 1139 (7th Cir. 1997). In addition, this Court notes that in the context of a RIF,
particularly after the jolting, tragic events of September 11, 2001, American had to make tough
decisions in the face of inevitable layoffs, and it is not this Court’s responsibility to engage in an
unduly harsh or unfair scrutiny of that process. However, it is also this Court’s responsibility to
ensure that in the face of American’s inevitable layoffs, Yonehara’s race, sex, national origin
and/or age did not unfairly ‘tip the balance’ in favor of his discharge. Most crucial to this inquiry
American employee Linda Pedian, as it is undisputed that she had employment issues as well. At
this stage of the party’s proceedings, the Court cannot determine whether those performance
issues are sufficiently distinct from Yonehara’s performance issues. Consequently even though
American has proffered a legitimate, nondiscriminatory reason for Yonehara’s discharge, there is
a genuine issue of material fact concerning whether American’s reasons was pretext, and in fact,

it Yonehara’s race, sex, national origin, and/or age did not tip balance in favor discharge.

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IV. IS AMERICAN’S LEGITIMATE NONDISCRIMINATORY REASON PRETEXT
Once Yonehara establishes a prima facie case of employment discrimination, American
must provide a legitimate, nondiscriminatory reason for its employment decision. As stated,
American contends that after the September 11, 2001 attacks, it had to engage in a reduction in
force. American contends that because Yonehara was in the bottom ten percent of the Level 3 or
4 employees in his group, he was terminated. Now that American has proffered a legitimate,
nondiscriminatory reason for its employment decision, Yonehara must provide evidence that the
reason was pretext. In the traditional employment discrimination case, to show pretext, a
plaintiff must show that the employer’s articulated reason for the adverse employment action: (1)
had no basis in fact; (2) did not actually motivate its decision; or (3) was insufficient to motivate
its decision. Grayson, 308 F.3d at 820 (citing Velasco v. Illinois Department of Human Services,
246 F.3d.1010, 1017 (7th Cir. 2001)). However, in a RIF case, the pretext standard is altered
slightly. The Plaintiff need not prove that the reason proffered by the employer is a lie.
Testerman v. EDS-Technical Products Corporation, 98 F.3d 297, 303 (7th Cir. 1996) (citing
Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995); see also Adreani v. Colonial
Bankshores Corp., 154 F.3d 389, 395 (7th Cir. 1998)). Rather, Yonehara must establish that his
age, sex, race and/or national origin, ‘tipped the balance’ in favor of discharge.” Testerman, 98

F.3d at 304 (quoting Umplemby v. Potter & Brumfield, Inc., 69 F.3d 209, 213 (7th Cir. 1995)).

Consequently, Yonehara must demonstrate that his age, sex, race and/or national origin, “enters
the calculus to such.an extent that the employ fires an employee who otherwise would have

survived the RIF.” Testerman, 98 F.3d at 304.

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evaluation. On his self-evaluation, Yonehara felt that he was “Excellent” in ten categories,
“Strong” in 19 categories, “Adequate” in seven categories, “Developmental Needs” in one
category and “Not Observed” in 1 category. Yonehara felt that the one area where he had
developmental needs was in excelling in the required job skills and knowledge.’

Clearly, Yonehara disagreed with Tuzzolino’s performance evaluation. Yonehara
provided Tuzzolino with a written response to the evaluation. In a memorandum to Tuzzolino
dated November 26, 2000, Yonehara specifically disputed and responded to Tuzzolino’s negative
comments in the performance evaluation, including Tuzzolino’s assertions that he did not
understand Defendant’s programs, failed to identify and forward competitive information, failed
to communicate with Pacific Sales peers, failed to understand the objectives of a sales manger,
failed to meet deadlines, failed to use resources in other departments, failed to accept
departmental goals, processes and procedures, did not communicate effectively, did not perform
well at quarterly Pacific Sales meetings and did not understand his job and the available
technology. On December 13, 2000, Tuzzolino conducted a follow-up meeting with Plaintiff.
Tuzzolino reported the discussion to Aichele. In addition, she prepared a written summary of her
tesponse to each issue Yonehara disputed in his performance evaluation. Because Yonchara did

not agree with Tuzzolino’s assessment of his performance, he did not sign the evaluation.

7 In elaborating further on his need improve his job skills and knowledge, in his review,
Yonehara commented that he lacked basic knowledge on sales tools, and that he recently had
an orientation training, but that was still not enough. Yonehara felt that once he was
familiarized with these tools however, he would be able to apply them efficiently.

-7-



In addition, the ADEA prohibits discrimination against individuals forty years or older, Taylor v.
Canteen Corp., 69 F.3d.773, 778 (7th Cir. 1995) (citing 29 U.S.C. § 631(a)), “with respect to the
compensation, terms, conditions or privileges of employment.” Taylor, 69 F.3d at 778 (citing 29
U.S.C. § 623(a)). Courts have noted both under Title VII and the ADEA, a plaintiff may prove
discrimination with either direct or circumstantial evidence, or the indirect burden-shifting
method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Jackson v.
E.J, Brach Corporation, 176 F.3d 971, 982 (7th Cir. 1999). Yonehara does not seek to pursue his
claims through the direct method of proof, but rather focuses upon the Mc-Donnell-Douglas
burden shifting approach. Jackson, 176 F.3d at 982. Under the burden-shifting framework, a
plaintiff must establish a prima facie case by a preponderance of the evidence. Id. (citing

Testerman v. EDS Technical Prod. Corp., 98 F.3d 297, 302 (7th Cir. 1996). Ifthe plaintiff

establishes a prima facie case, “ a rebuttable presumption is created and defendants must come

forth with evidence of a legitimate, nondiscriminatory reason for their actions.” Jackson, 176

F.3d at 982 (internal citations omitted). Once the defendant meets its burden, the burden shifts
back to plaintiff to demonstrate that the reasons proffered by the defendant are actually a pretext
for discrimination. Id. (internal citations omitted).

In traditional employment discrimination cases, under the McDonnell- Douglas
framework, in order to establish a prima facie case of employment discrimination, a plaintiff
must establish that: (1) he is a member of a protected class; (2) he reasonably performed to the
employer’s expectations; (3) he was subject to an adverse employment action; and (4) the

position remained open. See Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 693

(7th Cir. 2000). However, the Seventh Circuit has adopted variations of the traditional prima

-21-



a oo ,

September of 2001. Consequently, Plaintiff contends that he was performing his job to
Defendant’s expectations, and any assertion that he was not is inaccurate.

Yonehara refutes American’s contention that he was not performing to its legitimate
expectations. Defendants’ however, contend that because much of Yonehara’s tetimony that he
was performing to its legitimate expectations are self-serving affidavits, his testimony has no
merit. The Seventh Circuit has recently stated that the fact that an affidavit is self-serving does
not necessarily mean that it lacks any evidentiary value.

We have stated that generally , “[a]Jn employee’s self-serving statements
about his inability. . . are insufficient to contradict an employer’s negative
assessment of that ability.” However, we recently clarified this principle
by noting explicitly that it is not the mere self-serving nature of a
nonmovant’s affidavit that renders such evidence infirm. Rather, it is the
absence of personal knowledge or failure to set forth “specific facts as

required by Federal Rule 56(c) of the Federal Rules of Civil Procedure that
is problematic.

See Williams v. Seniff, 342 F.3d 744, 789 (7th Cir. 2003); see also Reynolds v. Arvinmeritor,

Inc., No. 1:02-1039-CV-JDT-TAB, 2003 WL 232207060 at * 7 (N.D. Ill. 2003). Specifically,
in citing specific facts to rebut American’s claim that he was not performing to its legitimate
expectations, Plaintiffs cites to several strong customer relationships, and notes how his
customers were impressed with Yonehara, and in particular, his understanding of Japanese
culture and business. Although this Court notes that clearly, an employer can decide that an
employee does not meet its legitimate expectations, even if that employee has strong customer or
client relationships, in Plaintiff’s particular job, Pacific Sales Specialist, strong customer

relationships appear key to acquiring sales. Consequently, because Plaintiff has provided facts

-27-



involvement with key organizations that foster marketing and visibility in the Japanese American
business community as well as cultural, charitable and philanthropic organizations which have a
strong focus on the Japanese and Asian local population. Other requirements included: (1)
previous work experience in international sales and marketing with a thorough understanding of
Japanese and other Asian cultures; (2) Japanese language skills (highly preferred); (3) travel; (4)
excellent selling, listening, communication and presentation skills; (5) knowledge of RMDS,
SABRE, IRIS, PADRE and PC skills (highly desirable); (6) a degree or equivalent experience.

A significant portion of Yonehara’s responsibilities as the Chicago Pacific Sales
Specialist included marketing the Chicago/Tokyo flight to ethnic Japanese travel agencies and
corporate accounts. In addition, Yonehara was expected to be actively involved with
organizations that fostered networking with the Japanese business community and to participate
in cultural, charitable and philanthropic organizations that focused on the Japanese population in
Chicago. All Pacific Sales Specialists were also required to participate in weekly meetings.
Further, all Pacific Sales Specialists were required to participate in quarterly meetings and to give
a presentation that reviewed the current performance trends in their territories. In addition, as a
Chicago Pacific Sales Specialist, Yonehara was initially responsible for promoting the Chicago-
Narita flight in a territory that included not only the Chicago area, but the entire Central Division,
which required him to travel out of state on a regular basis. None of the other Level 3 or 4 sales
managers in Chicago Passenger Sales had responsibilities for the Central Division that

necessitated regular out of state travel. Approximately a year and a half into Yonehara’s tenure

3+


PLAINTIFFS’ MOTION TO STRIKE PORTIONS OF DEFENDANT’S LOCAL RULE
RULE 56.1(3) STATEMENT

Before the Court can address Defendant’s motion for summary judgment, it must address
Plaintiffs motion to strike, which appropriately, was not filed as a separate noticed motion, but

addressed within his response to American’s motion for summary judgment.

I. Yonehara’s Motion to Strike Paragraph 8

Plaintiff believes that this paragraph purports to describe a conversation between
Plaintiff's counsel and an unidentified individual at the Equal Employment Opportunity
Commission (“EEOC”). Plaintiffs contend that the only support cited to in the record by
Defendant are unsigned, handwritten notes contained in the EEOC file, and that the author of the
notes is not indicated. Thus, Plaintiff contends, the notes are inadmissible hearsay and cannot
constitute competent evidence in support of the assertions of paragraph 8. Defendant believes
that these notes show that on August 23, 2003, Yonehara’s attorney was informed that the EEOC
investigation would issue a finding of no cause for discrimination, and that Yonehara’s attorney
informed the EEOC investigator that she “would prefer the RIS [right to sue] not come out with
anything negative.” Defendant contends that these notes are business records of the EEOC, and
therefore not hearsay, and should be admissible evidence. Federal Rule of Evidence 803(6),
“Records of regularly conducted activity,” concerns the admissibility of business records. In
relevant part, Rule 803(6) states that the following are not excluded by the hearsay rule, even
though the declarant is available as a witness:

A memorandum, report, record or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by, or from

“14.



Procknow in any issue related to this case known to Plaintiff was a meeting he had with
Yonehara.on May 21, 2002 to discuss the impact of a negative performance evaluation in
Yonehara’s file upon his prospects for mobility within the company. Plaintiff contends that none
of Defendant’s employees in their deposition testimony suggested that Procknow had any
involvement in or information concerning the reduction in force.

Defendants refute Plaintiffs’ assertions, and contend that this affidavit, of a corporate
representative, is not prejudicial and is relevant to the reason for the reduction in force.
American also contends (incorrectly) that it need not disclose in discovery a potential corporate
affiant. In addition, American contends that Procknow was disclosed in discovery, by the
Plaintiff, in his response to an interrogatory. (See PI. Ex. 13, Interrogatory No. 2, Answer, p. 7).
In addition, Defendant notes that Plaintiff does not dispute the reasons for the reduction in force,
and as such, this evidence does not prejudice him.

Though the realities of September 11, 2002 are daunting and harsh, unfortunately, they
are reality; Plaintiff does not dispute their reality. Nor does Yonehara dispute Defendant’s need
to engage in a reduction in force subsequent to the events of September 11, 2001. The
recounting of these events by the Defendants merely sets the background for its need to reduce its
workforce, and as such, does not prejudice Yonehara on his underlying claims. The issue in front
of the Court is clear: did Defendant, while conducting its reduction in force, unlawfully
discriminate against Plaintiff when choosing him as part of that reduction in force. The tragic
events of September 11, 2001 can be recounted without taking the focus away from that issue.

In addition, it is clear that Plaintiff had notice of Procknow’s potential use as a witness

prior to Defendant’s motion for summary judgment. In his response to Defendant’s

-16-



Sales Specialist, Level 4 Sales Manager, in American’s Chicago Passenger Sales office in
Rosemont, Illinois. Thomas Aichele (“Aichele”) American’s Managing Director of Chicago
Sales, communicated the offer of employment to Yonehara. Aichele felt that Yonehara was a
very personable individual who appeared able to build relationships, had past sales experience,
and an understanding of the Asia-Pacific part of the world, specifically, the Japanese language
and culture. Plaintiffs compensation for his employment with American included an annual
salary of $45,000. In addition, when he was hired by American, Yonehara was given $1,000 for
miscellaneous expenses associated with his relocation to Chicago from New York. At the time
of his hire, Yonehara reported directly to Aichele, who expressed his intent for Yonehara to be
successful with American.” Additionally, Yonehara reported indirectly to Anthony Marra, and
subsequently, Paul Obermueller (“Obermueller”)>

B. Yonehara’s Job Responsibilities as Pacific Sales Specialist

The Pacific Sales Specialist’s job description states that the employee: (1) is responsible
for Japanese ethnic agencies and corporate accounts in the designated area; (2) provides indirect
support for area sales managers to secures commitment for Japan and Asia revenue and market
share; (3) analyzes sales as they relate to Japan and Asia market opportunities for agency and
corporate accounts; (4) develops strategic plans in conjunction with Pacific Regional Sales

Managers and Headquarter Pacific Sales Specialist to capitalize on opportunities; (5) has active

2 Aichele is a 42 year old Caucasian male who was born in the United States.

3 Paul Obermueller, a 55 year Caucasian male born in the United States, is employed by
American as a Manager, Asia Pacific Sales, a position which he has held for at least 8 years.
Obermueller is responsible for U.S. point of sale to Asia, including Japan, Hong Kong, China
and Thailand. He is also responsible for supporting sales efforts and the sales force in Japan
and in the Asia Pacific market.

2-



employees in the Chicago office, even after he asked his supervisor to reduce his workload, this
can be considered an adverse employment action. Of course, this also assumes that other
employees were similarly situated (a fact not established), or that Yonehara’s duties became
more onerous because of intentional discrimination (also not established).

B._Is Yonehara’s Onerous Workload Claim Timely?

As stated, Defendants contend that any adverse employment action prior to February 2,
2001 should be time-barred. Conversely, Plaintiff contends that to the extent some of his
discriminatory treatment began prior to February 2, 2001, or more than 300 days prior to the
filing of his EEOC charge, Yonehara contends that these claims are not time-barred, because they
are part of a continuing pattern of conduct that extended into the limitations period.

In National Railroad Passenger Corp v. Morgan, 536 U.S. 101 (2002), the Supreme Court

clarified the continuing violation doctrine:

[D]iscrete discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges. Each discrete
discriminatory act starts a new clock for filing charges alleging that act.
The charge, therefore, must be filed within the [300 day] time period after
the discrete discriminatory act occurred. The existence of past acts and the
employer’s prior knowledge of their occurrence, however, does not bar
employees from filing charges about related discrete acts so long as the
acts are independently discriminatory and charges addressing those acts
are themselves timely filed. Nor does the statute bar an employee from
using the prior acts as background in support of a timely claim.

Morgan, 563 U.S. at 113. Consequently, Yonehara’s discrete adverse employment actions prior
to February 2, 2001 are time-barred. However, as Morgan dictates, although these adverse

employment actions are time-barred as an actionable claim, they may be used as background in

-25-



. IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION ca
- S&P 86 20
AKIYOSHI YONEHARA, ) Y 2604
)
Plaintiff, )
) No. 02 C 8561
v. )
—— ) HONORABLE DAVID H. COAR
AMERICAN AIRLINES, INC., )
)
Defendant. y

MEMORANDUM OPINION AND ORDER

Plaintiff Akiyoshi Yonehara (“Yonehara” or “Plaintiff”) has brought a claim against American
Airlines, Inc. (“American” or “Defendant”), pursuant to Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 20003 et seq., alleging Defendant discriminated against him based upon
his race (Asian), national origin (Japanese), and sex (male). In addition, Yonehara alleges
Defendant violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 er
seq., and race discrimination pursuant to 42 U.S.C. § 1981 (“§ 1981") Before this Court is
Defendant’s motion for summary judgment on all counts of Plaintiffs’ complaint. For the
reasons set forth below, Defendant’s motion for summary judgment is DENIED.

FACTS'

A._Yonehara is Hired by American

Yonehara is an Asian male of Japanese national origin, who was 63 years old at the time

his complaint was filed. On November 2, 1998, Yonehara was hired by American as a Pacific

' Unless otherwise noted, all facts are taken from the Parties’ Local Rule 56.1 materials.

-l-


RETESET: |

beyond his self-serving affidavits to refute Defendant’s assertion that he was not meeting its

legitimate expectations, these affidavits have merit.

Assuming arguendo, that Plaintiff did not raise an issue of fact as concerning whether he
met American’s legitimate expectations, the Seventh Circuit has noted that, “When a plaintiff
produces evidence sufficient to raise an inference that the employer applied its legitimate
expectations in a disparate manner, the second and fourth prongs of Mc-Donnell-Douglas merge,
allowing the plaintiff to establish that similarly situated employees were treated more favorably.”
Grayson v. O’Neill, 308 F.3d 808, 817. Plaintiff notes that Linda Pedian, a substantially
younger, non-Asian, non-Japanese female, another Level 4 Manager, had substantial performance
issues, yet was not selected for termination. It is undisputed that Linda Pedian had the following
work issues, in that she: (1) missed deadlines in June 1999; (2) kept a full voice mail system; (3)
received one customer complaint a year in 1999, 2000 and 2001. American contends that these
issues are nothing more than typical everyday performance issues. In addition, American
contends that Pedian would attempt to understand and accept criticism, admit her errors, and
thanked her managers for bringing the issue to her attention, and promised to improve. American
contends that Yonehara never accepted responsibility for his own performance issues, and
instead, said that American failed to understand how to conduct its business in the Japanese
market.

In this case, it is clear that Yonehara’s supervisors at American did not feel as if
Yonehara as performing to the company’s legitimate expectations. However, Yonehara has also

presented evidence of a non-Asian, non-Japanese, substantially younger woman, who had similar

-28-



Patricia Thornton (“Thornton”), the Managing Director for Passenger Sales Central
Division American, was responsible for communicating the information regarding the September
28, 2001 reduction in force to the Central Division, including the proper information and
instructions on how to carry out the layoffs. Thornton instructed those who reported directly to
her to rank the employees on the basis of the instructions from human resources, and to rank the
employees so that if the final target was increased or decreased, the rankings would not have to
be redone. Rankings were submitted to Thornton (and simultaneously to Tuzzolino), who had
the responsibility of assuring that the Central Division Passenger Sales department met its target.
In addition, each Managing Director or Regional Manager in the Central Division prepared a
written ranking list. After Thornton received the rankings, she attempted to look at the rankings
and workload, and tried to equitably distribute reductions based on workloads and targets. In
selecting the employees for layoff, Thornton strictly followed the ranking lists. Aichele
communicated his rankings to Tuzzolino, who prepared the ranking list. Yonehara was ranked
last among the Level 4 management employees and ranked last in the combined Levels 3 and 4
management employees. The final lists of selected employees for Central Division Passenger
Sales was prepared and forwarded to American headquarters.’ Subsequently, American

headquarters advised Thornton that the final list was accepted, and to effect the layoffs indicated

® The parties dispute whether Tuzzolino had any involvement with the Chicago
Passenger Sales Levels 3 and 4 rankings or the selection of any employee for layoff.
Defendant contends that Tuzzolino had no involvement, while Plaintiff contends that
Tuzzolino made recommendations concerning layoffs with respect to the people who were on
the team reporting to her as Marketing Manager at the time of the layoffs. Plaintiff also
contends that Tuzzolino influenced the selection of Yonehara for layoff through her
communications to other managers and the documentation she created alleging poor
performance while she supervised him, including the negative performance evaluation.

-12-



information transmitted by, a person with knowledge, if kept in the course of

regularly conducted business activity, and if it was the regular practice of that

business activity to make the memorandum, report record or data compilation.
These notes do not appear the type of information kept as part of a regular business record, as
they are handwritten, and there is no signature. These factors indicate that there is not the level
of trustworthiness Fed. R. Evid. 803(6) dictates is necessary for a document to be considered a
business record. Consequently, Yonehara’s motion to strike paragraph 8 is granted.

Il. Yonehara’s Motion to Strike Paragraphs 34 Through 57

Yonehara contends that these paragraphs of Defendants 56.1(3) Statement rely solely
upon a declaration signed by Daniel Procknow (“Procknow”), currently a Field Laborer Principal
for American. Yonehara believes that the recounting of the September 11, 2001 tragedy and its
general impact upon the airline industry as set forth in paragraphs 34 through 46 is unduly
prejudicial and immaterial to the issues in this lawsuit. Secondly, Yonehara contends that in
paragraphs 47 through 57, Defendant cites Procknow’s declaration as the only authority for a
general description of how Defendant carried out its post-September] 1 reduction-in-force.
Yonehara believes that there is no factual basis in Procknow’s affidavit for concluding that he
had personal knowledge of these reduction-in-force procedures.

In addition, Plaintiff contends, Defendant’s attempt to utilize Procknow’s declaration for
these broad purposes is improper and prejudicial to Plaintiff, as Yonehara contends that
Procknow was not identified in Defendant’s answers to Plaintiff's interrogatories where
Defendant was specifically asked to disclose the identity of persons with knowledge of matters
related to the allegations and/or defenses, with particular emphasis on the reduction in force.
Yonehara contends that prior to Defendant’s summary judgment motion, the only involvement of

~15-