collected from the airlines and from the tenants like the food and retail operations,

As | recall, he was favorable about accepting the position. I did not recall any
objection to it.

(Id., at 168-69). Ms, Loney testified that Mr. Maher was qualified for the position because he was
with the finance division, and could provide “prudent fiscal oversight of the revenue collections.”

Ud., at 170). She even recalled Mr. Maher’s sister:

Trecall |Mr, Mahcr’s] sister coming into my office. We did not have an appointment,
but she came to my office to discuss the procedure for him to be paid when he was
on ~ away from O’Hare on military duty.

(/d,, at 158). Ms. Loney’s detailed testimony does not support the City’s allegations that her memory
has dimmed as a result of Mr. Maher’s delay in filing suit. Her testimony, if believed, flatly
contradicted Mr. Maher’s contention that he was involuntarily transferred to Land Side Operations

as a punishment for his military service.

‘The City’s assertions regarding Mr. Franke’s inability to recall events are equally feckless.
The City’s concems in this regard are over Mr. Franke’s recollection of Mr. Maher’s title, starting
date, job description, and whether he was in a supervisory position. (Statement of Uncontested
Material Facts, 4 43(d)). These events have already been ruled on and claims from this carly period
have been held subject to the defense of laches. The City’s attempt to resurrect what it has already
won and insist that there must be an outright dismissal of the entire case is contrary to Pruitt —a case

which the City’s briefs ignore.

Morcover, the trial transcript makes clear that Mr. Franke’s inability to testify clearly as to

14



potential liability for back pay to establish prejudice.’

Only two of the cases the City cites in support of its back pay argument are VRRA or

USERRA cases and both of those, Lingenfelter v. Keystone Consal. Industries, Inc,, 691 F.2d 339

(7" Cir. 1982), and Furries v. Stanadyne/Chicago Div., 832 F.2d 374, 382 (7° Cir. 1987), were

decided long before Congress spoke so explicitly on the issue. In addition, both cases dealt with
situations where the plaintiff was replaced and the defendant was potentially liable for an entire
duplicative salary over a period of years, not just the different in pay between one position and
another. What the difference in salaries here might be is anyone’s guess. The amount might be
trivial, in which case by definition, the prejudice would neither be substantial, material or serious.
See supra at 3. Compare United States v. Broomfield, 417 F.3d 654, 656 (7" Cir. 2005)(Posner, J,)(the
doctrine of de minimus non curat lex is a sensible limitation on the making of trifling and silly claims,

constitutional or otherwise).

The City, whose burden it is to establish material prejudice, does not offer any evidence on
this subject. Hence, it is impossible to conclude that il is entitled to summary judgment on this
aspect of its claim, Moreover, even if it were possible to look to available extrinsic information to
determine that which the City has chosen not to provide me, I would have to perform the extensive

exercise the Federal Circuit — in the case cited in the legislative history — called “a waste of judicial

? ‘The City also complains, in an undeveloped, single-sentence argument, that it should not have to
shuffle its staff to accommodate Mr. Maher should it be forced to move him to a different position. Such
askeletal assertion does not merit consideration, Kramer v. Banc of America Securities, LLC, 355 F.3d 961,
964 (7" Cir. 2004)(undeveloped, single-sentence argument deemed waived); Perry v. Sullivan, 207 F.3d 379,
383 (7" Cir.2000) (single-sentence argument unsupported by citation to authority deemed waived). In any
event, Congress was clear early on, in the legislative history for VRRA, that in the context of laches,“[i]t was
always recognized by Congress that such ‘bumping’ was inevitable in some situations, and that the Act
required it in order to provide the veteran with his statutory rights and protections.” Senate Report No. 93-
907, 93" Cong., 2d Sess. at 113 (June 10, 1974),


The City argues that Mr. Hawthorne, one of Mr. Maher’s former supervisors, could not recall
at trial how long it was before Mr. Maher was reinstated to his duties after his return from
deployment in Bosnia, and whether one of Mr. Maher’s former subordinates, Jeff Crosby, had been
promoted while he was Mr, Maher’s supervisor. (Defendant's Memorandum, at 10). Actually, Mr.
Hawthome testified that he did not recall it taking two-and-a-half months for Mr. Maher to be
reinstated to his duties. (Defendant's Exhibit 1, Hawthome Testimony, at 36-37), He was not asked
how long it ook. And while it is true that Mr. Hawthorne testified that he could not recall whether
Mr. Crosby was promoted under his watch (id. ai 44), this may have been because he was not aware
of whether Mr. Crosby’s new job dutics represented an advancement from his former position. (id,
at71).* As such, the testimony does not require (he interpretation that loss of memory over time has
resulted in material prejudice to the City. And, in any case, the City fails to demonstrate that there
are no personnel records that would detail such events with clarity, See Hutchinson v.
Spanierman, 190 ¥.3d 815, 826 (7" Cir. 1999)(“Successful invocation of the doctrine of laches has
included proof that available witnesses did not have a distinct recollection of the details of the case
or that they had no access to records which would disclose the same.”): see alse Pruitt, 472 F.3d at
928 (ample proof that records destroyed in the ordinary course of business long before litigation
commenced); Smith, 338 F.3d at 733 (motion supported with cvidence regarding the destruction of
relevant personnel records).

Beyond that, the trial transcript does not depict Mr. Hawthorne struggling with his memory.

He was able to remember haw he mct Mr, Maher in 1991, about two years before he became Mr.

“Mr. Maher’s contention at trial was that few, if any people, were as qualified as he and that any
promotion other than his was suspect, The fact that Mr. Hawthome could not remember whether a particular
Person was promoted does not begin to satisfy the stringent requirement that the prejudice be significant,

10



of Chicago, 472 F.3d 925, 928 (7" Cir. 2006) Even the cases the City relies upon require more
than unsupported assertions of unavailability. See Smith v. Caterpillar, Inc., 338 F.3d 730, 734 (7"
Cir, 2003)(witnesses difficult if not impossible to locate); Jeffries v. Chicago Transit Authority, 770

F.2d 676, 680 (7" Cir. 1985)(witnesses dead or whereabouts unknown).

The City had no trouble locating Mr. Smith to procure his affidavit, and according to the
notary’s seal, Mr. Smith had no reluctance to travel to Illinois to give his affidavit. Indeed -- as his
affidavit is silent on the question — Mr. Smith may live just across the state line in Indiana — closer
to the trial than if he lived in one of many Chicago suburbs located in Illinois, and well within the
court’s subpoena power. There is no explanation whatsoever for why he cannot travel to Chicago
for the trial in July, and no proof of his unwillingness to assist the City. Finally, even ifthe City had
taken the trouble to demonstrate that Mr. Smith is unavailable to testify at the trial, it could still not
show the type of significant prejudice laches requires.

I have already granted the City summary judgment on Mr. Maher’s claims that he was
demoted by Mr. Smith in 1991, and found that his claims of harassment prior to December of 1992
are not actionable. Maher v. City of Chicago, 406 F.Supp.2d 1006, 1022-23 (N,D.IIL. 2006). This
carving out of aspects of the plaintiff's claim is consistent with the course suggested by Pruitt v. City
of Chicago decided almost a ycar after Maher. See 472 F.3d 925, 929. As Mr. Maher points out,
the only claims remaining are his claim that he was denied a promotion in 1994 and his claim that

he was transferred in 1998. (Plaintiff's Memorandum, at 5), Those allegations do not involve Mr.

5 In Pruitt, it was not merely that a witness was beyond the subpoena power. He had also suffered
astroke and was experiencing severe mental problems and was unable to answer most of the questions asked
of him. at a deposition in another suit Other witnesses had died and huge volumes of records had been
destroyed as outdated. Another witness was suffering from cancer. 472 F.3d at 928.

7



resources.” Cornetta, 851 F.2d at 1381. “Instead of devoting time to the merits of a claim, courts
must spend substantial time determining the salary, allowances and other benefits to which a

claimant would be entitled should he prevail. . .. [and] ascertain and then subtract [setoffs].... Only

then does it engage in the calculus of whether the resulting sum is sufliciently prejudicial, with

erratic results.” Cornetta, 851 F.2d at 1381. As such, the City’s back pay argument must be

rejected.

2.
The City Has Failed To Demonstrate Material
Prejudice As A Result Of Unavailable Witnesses
‘The City also cites the loss of what it characterizes as important testimony from two key
witnesses — Jerome Smith and Timothy McCarthy — who i claims are unavailable as a consequence
of Mr. Maher's delay. Mr. Smith was Mr. Maher’s supervisor until August of 1992. He left his job
with the City in July of 1996. In his affidavit, he states that he no longer lives in INinojs — although
he does not say where he does live~. and claims, without cxplanation, that he will be unable to travel
to Chicago for the trial of this case in July of 2007. (Defendant City af Chicago's Motion for
Summary Judgment, Ex. 4), Generally, unavailability for trial must be proven, not merely asserted.
Goudman vy, Bertrand, 467 F.3d 1022, 1024 (7" Cir. 2006); United States v, Cochran, 955 F.2d

1116, 1124 (7" Cir. 1992).

Tn the context of laches, unavailability for trial can be shown if a witness is deceased,

incapacitated, or has moved beyond the court’s subpoena power and refuses to return. Pruitt v. City



that were the cause of his assertion of the Fifth Amendment, which is not a basis for the laches
defense. See Balistrieri v. Holtzman, 55 P.R.D. 470, 472 (£.D. Wis.1972)(witness’s invocation of
Fifth Amendment not ground for application of laches), One may take judicial notice that federal
criminal investigations takc some time and that the particular investigation involving Mr. McCarthy
and others had been going on for some period before the actual indictment. How long, it is
impossible to say with certainty. But it is clear that the intervening problem necessitating the claim

of Mr. McCarthy’s Fifth Amendment privilege was not of recent origin. The City’s speculative and

assumptive argument about Mr. McCarthy does not satisfy the rigorous standards imposed by Rule

56.
3.
The City Fails To Demonstrate Material Prejudice As A Result Of

Witnesses’ Failing Memories

Finally, the City argues that four other witnesses - Dwain Hawihome, Michael Cummings,
Mary Rose Loney, and Jay Franke — while available to testify, are unable to recall certain facts and
events that Mr. Maher was able to testify to at the trial, But merely showing some dimming of
memories, even in conjunction with an extraordinary delay on the part of the plaintiff in initiating
suit, is not cnough to trigger the doctrine. See, e.g., Leonard v. United Airlines, 972 F.2d 155, 1159
(7° Cir, 1992)(denying claim of laches even though “memories have dimmed”). ‘The passage of time
dulls all memories to some degree and makes proof of any fact more difficult. Dickey v. Florida,
398 U.S. 30, 42 (1970)(Brennan, J., concurring). That is why, in part, there are statutes of
limitations. /irschberg v. CFTC, 414 F.3d 679, 685 (7" Cir. 2005). Even the Confrontation Clause
docs not guarantee that witnesses won’t forget things. United States y. Ghilarducci, 480 F.3d 542,

549 (7" Cir, 2007).


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

EASTERN DIVISION
)
JEROME MAHER, )
Plaintiff, } No. 03 C3421
ve ) Magistrate Judge Jeffrey Cole
CITY OF CHICAGO, }
Detendant,

MEMORANDUM _ OPINION AND ORDER

L
BACKGROUND

Jerome Maher has worked for the City of Chicago’s Department of Aviation since 1990.
In 2003, he brought suit under the Veterans’ Reemployment Rights Act of 1974 (“VRRA”), 38
U.S.C. § 2021 et seq., and the Uniformed Services and Recemployment Rights Act (“USERRA”), 38
U.S.C. §§ 4301-33 — the two federal statutes that protect the reemployment rights of veterans — and
Ulinois’ Public Employee Armed Services Rights Act. 5 ILCS 330/1 e¢ seg. During the trial the
week of November 27, 2006, Mr. Maher sought to portray himself as having suffered more than a
decade of calculated, consistent harassment by the City because of his participation in the Naval
Reserves — first, in the Gulf War and later in Bosnia — all of which created a hostile work
environment and resulted in him being denied several promotions, The events at issue spanned a
period beginning as far back as 1993 and continuing through 2003. After two days of deliberations,
the jury reported that it could not reach a decision and, with the parties’ approval, was discharged

and a mistrial was declared, The City now moves for summary judgment under a theory of laches,



demonstrate that (here is no dispute that Mr. Maher’s delay caused the three witnesses to forget what

happened.

A look behind the City’s bald assertions regarding the memories of Mr. Cummings, Ms.
Loney, and Mr. Franke undermines the City’s arguments about the passing of time and the fading
of memories. The City states that Mr, Cummings testified that he could not recall the dates or
number of times that Mr. Maher complained about discrimination. (Statement of Uncontested
Material Facts, § 43(b), citing Ex. 1, at 76). The portion of the transcript to which the City points,
however, does not support this assertion. In it, Mr. Cummings testifies that he worked for the City
formerly been a deputy commissioner at Midway Airport. (Defendant's Exhibit 1, Cummings
Testimony, at 76). Local Rule 56.1(a)(3) requires that the party’s statement in support of a motion
for summary judgment refer to the “affidavits, parts of the record, and other supporting materials”
that substantiate the listed facts. .7.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7"
Cir, 2005), A court should not be expected to review a lengthy record for facts that a party could
have easily identified with greater particularity. Ammons v. Aramark Uniform Services, Inc., 368
F.3d 809, 818 (7" Cir. 2004). The City’s argument regarding Mr. Cummings’ loss of memory, then,
are disregarded. Bay Area Business Council, 423 F.3d at 633(district court is entitled to expect strict

compliance with Rule 56.1); Ammons, 368 F.3d at 817 (same).

‘The City asserts that Ms. Loncy did not recall certain aspects of Mr. Maher’s tenure with the
Department of Aviation: whether he attended staff meetings, whether she ever promoted anyone to
a deputy position, whether anyone recommended Mr. Maher for promotion, whether she promoted
Mr. Crosby. (Statement of Uncontested Material Facts, 43(c), citing Ex. 1, at 158, 166, 168, 180,

12


Maher’s supervisor, He recalled that Mr. Maher visited the comptroller’s office in those days, which

was where he, Mr. Hawthorne, worked at the time. He was able to remember Mr. Maher's job duties
and responsibilities, as well as the fact that he had CPA training, and that it did not come into play
in his position, Mr. Hawthorne recollected that he learned that Mr. Maher was in the Naval Reserves
in 1991, He knew for certain that he never performed a written evaluation of Mr. Maher's work, and
that he never disciplined him. He also recalled that Mr. Maher had two people that reported directly
to him. (Defendant's Exhibit /, Ulawthorne Testimony, at 29-31). Mr. Hawthorne testified
specifically that Mr. Maher did not show him the orders indicating the Navy had activated him, did
not inform him of the activation, and that he had to learn of it through the personnel department.
(d., at 33). He specifically denied that he resented Mr. Maher for his service in the reserves or ever
commented negatively in regard to it. (/d., at 34). Overall, his testimony did not evince the fading
memory of which the City complains. In short, Mr. Hawthorne’s testimony allows the reasonable

inference that the passage of time has not robbed him of his recollection of salient events to a degree

that materially prejudices the City.

That leaves Mr. Cummings, Ms. Loney, and Mr. Franke. The City argues that these
witnesses could not recall Mr. Mahcr’s titles or job dutics at the time Mr. Maher alleged he was
demoted or mistreated. (Defendant's Memorandum, at 10). But, again, there is nothing to suggest
that personnel records could not {ill in such dates and job descriptions. Hutchinson, 190 F.3d al 826;
Smith, 338 F.3d at 733, The City has presented no evidence that records have been destroyed and
that but for the delay, those records would be in existence. Moreover, most of the dispute about titles
involved Mr. Maher’s original hiring and the City has already won on a laches defense as to those

carly activities. And even if that were not the case, the evidence the City presents does not

1]


Smith.

Mr. McCarthy, the other witness the City points to as vital and unavailable, was formerly the
Department of Aviation’s assistant commissioner of personnel. During trial, Mr. Maher testified that
he complained to Mr. McCarthy about harassment from his then-supervisor, Dwain Hawthorne. The
City complains that, during the trial, Mr. McCarthy was unavailable as a witness because, as he was
under indictment, he invoked his Fifth Amendment privilege. Now, with a second trial looming, the
City asserts thal Mr. McCarthy will be unavailable becausc he is in federal prison. Significantly, the
City does not suggest that Mr. McCarthy’s testimony would be helpful — that is that he would
testimony that Maher never complained. If Mr. McCarthy’s testimony were the opposite, the delay

has helped, not harmed, the City. The matter cannot be left to conjecture as the City secks to do.

Merely because Mr. McCarthy is in prison does not mean he is “unavailable.” Incarcerated
people testify by way of deposition frequently. The City does not say where Mr. McCarthy is
currently residing and so it is impossible to know whether he is outside the court’s subpoena power.
The showing made by the City is inadequate to demonstrate prejudice. See United States v, Dyer,
136 F.3d 417, 428 (5" Cir. 1998)(proponent of laches demonstrated incarcerated witness was hostile
and unwilling to testify). The City has made no attempt to depose Mr. McCarthy, and no claim is

made of impaired memory.

Also, laches requires that the defendant suffer material prejudice as a result of the plaintiff's
delay in filing suit. Ble Cross, 467 F3d at 640, Smith, 338 F.3d at 733. The City’s motion suggests
that Mr. McCarthy was available as a witness for the first three ycars this case was pending.

(Defendant's Memorandum, at 9), Thereafter, the indictment and conviction were intervening events


judgment if the facts necessary for determining whether the defendant suffered material prejudice
are not genuinely disputed. Smith, 338 F.3d at 733, Jeffries, 770 F.2d at 679. Here, it has already
been determined that the Mr. Maher’s delay in filing suit was inexcusable. See also Pruitt, supra.
But as happened with its previous motion, the City has failed to demonstrate that there is no genuine

dispute that it has suffered material prejudice as a result of Mr. Maher’s delay.

1
The City’s Potential Liability For Back Pay Does Not Amount To Material Prejudice

First, the Cily argues that its increased potential liability for back pay occasioned by Mr.
Maher's delay in filing suit constitutes sufficient prejudice. This argument is a non-starter. In its
illumination of the 1994 amendments to USERRA, the House Report specifically addressed the issue

of prejudice in the laches context:

Section 4322(d)(7) would reaffirm the 1974 amendment to chapter 43 that no State
statute of limitation shall apply to any action under this chapter. It is also intended
that state statules of limitations not be used even by analogy. . . . Additionally, in
dealing with the prejudice element of the laches defense, it was also made clear in
Senate Report No. 93-907 at 113 "that the 'bumping of employees . . . [does not]
constitute prejudice to the employer. . ." To the same effect, the payment of back
wages or lost benefits, by itsclf, docs not constitute prejudice in the laches context.
See Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 808 (8th Cir. 1979);
Cornetta v. United States, 851 F.2d 1372, 1380-82 (Fed. Cir. 1988).'

House Report No. 103-65(1) ILR. REP. 103-65, 1994 U.S.C.C.A.N. 2449, 2472, 1993 WL 235763,

*39. The legislative history could noi be clearer. The Cily must do more than point to its increased

* 'Yellingly, the House Report cited to Cornetta v, United States, 851 F.2d 1372 (Fed. Cir. 1988),
where the Federal Circuit stated that “[i]f back pay constitutes prejudice then virtually every suit could be
said to be presumptively “prejudicial” because most successful military claimants receive back pay.” 851
F.2d at 1381.



such matters was as much or more a product of what he called the “murky” nature of the hierarchy

in city government:

There were budget slots created in the annual budget by the City Council. It could
say assistant commissioner for land side. It could say a lot of things. And then you
put people in a job and decided what you wanted him to do. It wasn’t necessarily
consistent with the position title.

(Iranke Testimony, at 574). He specifically explained his inability to recall Mr. Maher’s title or
whom he supervised as a product of the department being “one big . . . large and uneven gray
landscape.” (/d., at 578), Even at the time, Mr. Franke “certainly didn’t try to figure out who was
reporting to who... .” (/d, at 579). ‘The passage of time, then, was not really a factor in
Mr.Franke’s inability to testify with any more exactitude as to the department of aviation’s pecking
order. The City has failed to demonstrate that it has been materially prejudiced because witnesses

can no longer recall events duc to the passage of time.
CONCLUSION

For the foregoing reasons, the City’s motion forsummary judgment [#99] is hereby DENIED.

woman XAD Cho

‘ n\n JUDGE

DATE: 6-13-07


Wauconda Healthcare and Rehabilitation Centre, LLC, 464 F.3d 659, 664 (7" Cir. 2006). “Courts
arc required to view the facts and draw reasonable inferences in the light most favorable to the party

opposing the [summary judgment] motion.” Scort vy, Harris, 127 8.Ct. 1769, 1774-1775 (2007).

B.
Laches
An equitable doctrine, laches is founded on the notion that equity aids the vigilant and not

those who slumber on their rights. Pro-Koortball, ine. v. Harjo, 415 F.3d 44, 47 (D.C. Cir. 2005).
‘The defense of laches requires proof of (1) lack of diligence by the party against whom the defense
is asserted, and-- the second requirement is critical-- (2) prejudice to the party asserting the defense.
State of Kansas v, State of Colorado, 514 U.S. 673, 687 (1995); Isaacs v. Hill's Pet Nutrition, Inc.,
485 F.3d 383, 385 (7" Cir. 2007) (Easterbrook, C.J.); Pruitt v. City of Chicago, 472 F.3d 925, 928
(7" Cir. 2006); Blue Crass and Blue Shield Ass'n. v. American Express Co., 467 F3d 634, 640 (7"
Cir. 2006). The prejudice must be “substantial,” “material” or “serious.” Smith v. Caterpillar, Inc.,
338 F.3d 730, 733 (7" Cir. 2003); Jeffries v. Chicago Transit Authority, 770 F.2d 676, 679 (7th
Cir.1985); Equal Employment Opportunity Commission v. Massey-Ferguson, Inc., 622 F.2d 271,

278 (7" Cir. 1980).

Lack of diligence can be demonstrated by inexcusable delay. G. D, Searle & Co. v. Cohn,
455 U.S. 404, 411 (1982); Pruitt v. City of Chicago, supra. The plaintiff bears the burden of
explaining the delay in bringing suit. If the delay is inexcusable, then the defendant must show
prejudice. Miller v. City of Indianapolis, 281 F.3d 648, 653 (7" Cir. 2002); Zelazny v. Lyng, 853
F.2d 540, 541 (7" Cir. 1988); Lingenfelter v. Keystone Consol. Indus, 691 F.2d 339, 340 (7"

Cir.1982). While laches often involves questions of fact, it is nevertheless appropriate for summary


renewing the motion it filed prior to the trial.

The background of this case is discussed at length in the decision on the City’s previous
motion for summary judgment and need not be revisited here. Maher v. City of Chicago, 406
F.Supp.2d 1006 (N.D.IIL. 2006).

II,
ANALYSIS

A.
Summary Judgment

Summary judgment is proper where “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 a judgment as a matter of law.”
Fed. R.Civ.P. 56(¢); Celotex Corp, v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are facts
that “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Bowlds v. General Motors Mfg. Div. of General Motors
Corp., 411 F.3d 808, 810 (7 Cir. 2005), A dispute over material facts is genuine if “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248; Bowlds; 411 F.3d at 810.

‘The “party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477
U.S. at 323, At summary judgment, “a court may not make credibility determinations, weigh the

evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.” Paz v.


188). But review of the cited portions of the transcript does not reveal that Ms. Loney specifically
claimed an inability to remember these things. When asked, “Do you recall if Mr. Maher attended
any of those extended stafT meetings?,” Ms. Loney simply replied, “No.” (Loney ‘Testimony at 166).
Such testimony could be interpreted to mean that Mr. Maher did not attend meetings. While she
said that she did not recall promoting anyone during her tenure, she was able to testify in detail as
to the procedure for promotion. (/d., at 166-168). But more importantly — and again - promotions

would be the subject of personnel records, Hutchinson,190 F.3d at 826; Smith, 338 F.3d at 733.

As with Mr. Hawthorne, Ms, Loney’s testimony was not that of one battling the passage of
time in an effort to recall events. Despite the passage of well over a decade, the trial transcript
indicates that Ms. Loney’s memory was detailed, She testified as to certain personnel details of the
department of aviation, including names and positions. (/d., at 155-57). She gave a detailed account
of measures taken in the department during the first Gulf War, deadlines for airport compliance,
dates, security levels, the name of the General who was in charge of civil aviation security. (/d., at
163-65). She had no difficulty recalling Mr. Maher and his assignment to Land Side Operations,

which she testified occurred in the late spring or carly summer of 1997:

What 1 do recall about Mr. Maher is that we had a need in land side operations, and,
again, that would be our parking, our roadways, all of the commercial vehicles that
operated O'Hare, such as the taxis, the limousines, the shuttle operations, we had a
need to better oversee revenue collection in that area. Parking is clearly one of the
largest revenuc sources for the airport. The commercial operators, the limousines, the
taxicabs, the shuttles, they all pay a fee as well. And we wanted to, in addition to
having oversight by operations personnel that would be responsible for controlling
traffic in and out of the airport, where commercial limousines stage their vehicles
before they would enter the terminal roadway to pick up and drop off passengers. We
wanted to have a financial oversight component to our land side operations, and I
recall having a discussion with Mr. Maher about him assuming that activity for us.
Tt was important to us because land side revenue collections helped to ensure that the
airports are financially self-supporting, in addition to the other revenues that are

13