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AYLWARD v. HYATT CORPORATION

August 5, 2005.

WENDY JENSEN AYLWARD and MARY ROCERETO, Plaintiffs,
v.
HYATT CORPORATION, Defendant.



The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Defendant, Hyatt Corporation (hereinafter "Hyatt"), moves the Court to grant summary judgment in its favor pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs, Wendy Jensen Aylward and Mary Rocereto, oppose summary judgment and move the Court to strike certain affidavits on which Hyatt relies in its motion for summary judgment, alleging that the contents of the affidavits do not comply with the requirements of Rule 56(e) of the Federal Rules of Civil Procedure. The parties have consented to have this Court conduct any and all proceedings in this case, including the entry of final judgment. See 28 U.S.C. § 636(c); Local R. 73.1(a). For the reasons that follow, Plaintiffs' motion to strike is granted in part and denied in part, and Hyatt's motion for summary judgment is granted.

  I. Factual Background

  Plaintiffs, Wendy Jensen Aylward and Mary Rocereto, were employees of Hyatt's National Sales Force (hereinafter "NSF"), which sells Hyatt's hospitality services to large companies and organizations that use Hyatt's services in multiple cities around the country. (Def.'s LR56.1 ¶ 3.) As national sales managers, Aylward and Rocereto established and maintained long-term relationships with a group of national customers whose accounts they developed and serviced. (Pls.' LR56.1 ¶ 1.) Both Plaintiffs were terminated by Hyatt effective October 1, 2001, as part of a Reduction in Force (hereinafter "RIF") in the NSF. (Pls.' LR56.1 ¶¶ 21, 40.) Plaintiffs allege that their termination was the result of unlawful discrimination based on gender, age, and disability. Their respective employment histories and the circumstances surrounding their termination are set out in greater detail below.

  A. Rocereto's Employment History

  Rocereto began working for Hyatt in 1978 and became a member of Hyatt's NSF in 1993. (Def.'s LR56.1 ¶¶ 5, 7.) When she joined the NSF, Rocereto's title was Director of Insurance Industry Sales and she was responsible for insurance industry accounts in the Midwest and Canada. (Def.'s LR56.1 ¶ 7.) In late 1994 or early 1995, Rocereto was made the head of Hyatt's Florida National Sales Office and given the title Director of National Accounts and Insurance Industry Sales. (Def.'s LR56.1 ¶ 8.) Rocereto did not meet her sales goals for 1995 and 1996 so John Hyland, her manager at the time, gave her a performance rating of "improvement needed" in 1996. (Def.'s LR56.1 ¶ 10.) From 1997 until the time of her termination in 2001, however, Rocereto met her sales goals and received favorable performance reviews from her manager, Hyland, (Def.'s LR56.1 ¶ 11.) Beginning in 2000, Rocereto worked out of her home near Tampa Bay, Florida, though most of her accounts were not located in the Tampa Bay area. (Def.'s LR56.1 ¶¶ 12, 38.) On March 21, 2001, Rocereto applied for family medical leave in connection with the impending birth of her child. (Def.'s LR56.1 ¶ 13.) Rocereto was granted such leave without incident and with full pay commencing July 2, 2001 through August 12, 2001.*fn1 (Id.) By the time of the RIF in the Fall of 2001, Hyatt's insurance industry accounts in general were declining and Rocereto's largest account was "booked out," meaning that it lacked growth potential. (Def.'s LR56.1 ¶ 38.) In the Fall 2001 RIF, Rocereto was selected for termination.

  B. Aylward's Employment History

  Aylward began working for Hyatt in 1988 and became a member of Hyatt's NSF in 1993. (Def.'s LR56.1 ¶¶ 15, 16.) As a member of the NSF, Aylward was based in Greenwich, Connecticut. (Def.'s LR56.1 ¶ 16.) In February 1995, Aylward was promoted to Director, National Accounts for the NSF, a position she held until her termination in 2001. (Id.) For approximately five years, until the summer of 2001, Aylward's direct supervisor was Linda Wilcox. (Def.'s LR56.1 ¶ 17.) Aylward received performance reviews of "meets expectations" or better throughout her tenure at Hyatt. (Def.'s LR56.1 ¶ 22.) By the time of the 2001 RIF, however, Aylward had the lowest performing group of accounts of any member of the NSF. (Def.'s LR56.1 ¶ 43.)

  In March 1999, Aylward was diagnosed with multiple sclerosis (hereinafter "MS") after being hospitalized for a seizure. (Def.'s LR56.1 ¶ 18; Pls.' LR56.1 ¶ 24.) Aylward's MS caused her to suffer several long-term impairments, such as cognitive impairments affecting her short-term memory and concentration, fatigue, and low tolerance for heat. (Pls.'LR56.1 ¶ 25.) Shortly after she returned home from her hospitalization, Aylward informed her immediate supervisor Linda Wilcox of her disease and requested several accommodations designed to help her perform her job, including more frequent breaks, reduced travel, and allowing her incoming telephone calls to go to voice mail so that she could answer them all at the end of the day. (Def.'s LR56.1 ¶ 19.) Hyatt granted all of these requests for accommodation. (Def.'s LR56.1 ¶ 20.)

  In March 2001, Wilcox prepared Aylward's 2001 annual performance review. Wilcox gave Aylward an overall rating of "meets expectations" but suggested, among other things, that Aylward increase her travel and entertaining, enroll in a computer class, and work to improve her performance in the areas of task management and organizational skills. (Def.'s LR56.1 ¶ 23; Pls.' LR56.1 ¶ 30.) Aylward agreed with the strengths and weaknesses identified by Wilcox, (Def.'s LR56.1 ¶ 26), and acknowledged that criticism of her task management and organizational skills was fair and reasonable. (Def.'s LR56.1 ¶ 23.) Nonetheless, Aylward objected to this performance review, specifically arguing that the review should have explicitly mentioned her MS. (Def.'s LR56.1 ¶ 24.) In response to Aylward's request, Wilcox consulted with Assistant Vice President of Sales John Horne,*fn2 who then consulted with the Human Resources Department. (Def.'s LR56.1 ¶ 25.) Ultimately, Wilcox did not add a MS reference to Aylward's review but, in April 2001, asked Aylward to provide a written note from her doctor regarding her diagnosis and the limitations imposed by her MS.*fn3 (Def.'s LR56.1 ¶ 27.) Wilcox also told Aylward that Hyatt would continue to adjust Aylward's work schedule based on her health situation. (Def.'s LR56.1 ¶¶ 27, 28.) As these facts suggest, and as Aylward has stated in deposition testimony, Hyatt never removed or denied a requested accommodation.*fn4 (Def.'s LR56.1 ¶ 28.)

  C. The Fall 2001 RIF

  After the terrorist attacks of September 11, 2001, Hyatt experienced a severe and immediate downturn in its business.*fn5 (Def.'s LR56.1 ¶ 31.) Acting on the orders of Hyatt's President, Senior Vice President of Sales Tyson Helms instructed John Horne to examine his business operations for cost savings opportunities, including personnel reduction. (Def.'s LR56.1 ¶ 32.) As Hyatt's Assistant Vice President of Sales, Horne's responsibilities included managing and supervising the NSF. (Horne Aff. ¶ 1.)

  Horne examined the NSF for cost saving opportunities. (Def.'s LR56.1 ¶ 34.) Horne testified that he evaluated the NSF personnel based on the characteristics of their accounts, such as the value of the accounts, their geographical location, and the possibility of servicing the accounts from another location or with another salesperson. (Id.) This was a departure from Hyatt's normal RIF selection procedure, which traditionally gives significant weight to seniority, among other factors. (Pls.' LR56.1 ¶ 16.) After completing his evaluation, Home grouped employees into categories labeled "A," "B," and "C," with the "A" and "B" categories representing employees considered more or less essential to the NSF and the "C" category representing employees selected for termination. (Def.'s LR56.1 ¶ 34.)

  According to Horne, Rocereto was selected for termination because the insurance and financial industry accounts in which she specialized were declining and could be handled by a single manager. (Def.'s LR56.1 ¶ 38.) In addition, Horne claims to have selected Rocereto because her largest account, "Timco," was "booked out," meaning it lacked potential for growth, and because she was not geographically located near her accounts. (Id.) While Rocereto was let go, the other NSF member specializing in insurance accounts, Marilyn Brumbaugh, was retained in the RIF. (Id.) At the time of the RIF, Rocereto was forty-four years old and Brumbaugh was fifty-six years old. (Id.)

  Aylward was also selected for termination in the Fall 2001 RIF. Horne testified that she was selected for elimination because she had the lowest performing group of accounts of any member of the NSF. (Def.'s LR56.1 ¶ 43.) He further testified that he did not review Aylward's performance reviews when selecting her for termination. (Id.)

  D. Charges of Discrimination

  Plaintiffs filed timely discrimination charges with the U.S. Equal Employment Opportunity Commission. (Pls.' Compl. at 8.) Rocereto alleged that she had been discriminated against by Hyatt on the basis of her gender and her age. Aylward alleged that she had been discriminated against on the basis of her gender and her disability. Both Plaintiffs received a notice from the EEOC of their right to sue in federal court and subsequently filed the instant lawsuit on August 29, 2003, in the United States District Court for the Northern District of Illinois. (Id.) On March 30, 2005, Hyatt moved for summary judgment on all charges. Plaintiffs filed a brief opposing summary judgment, and on May 13, 2005, moved to strike the affidavits of John Horne, Tyson Helms, and Douglas Patrick, on which Hyatt relies in moving for summary judgment.

  II. Discussion

  A. Plaintiffs' Motion to Strike

  Plaintiffs move the Court to strike the affidavit testimony of John Horne, Tyson Helms, and Douglas Patrick, on which Hyatt relies in moving for summary judgment. Plaintiffs allege that the affidavits may not be considered when ruling on Hyatt's motion for summary judgment because they do not comply with the requirements of Federal Rule of Civil Procedure 56(e). Specifically, Plaintiffs claim that statements contained in the affidavits are (1) not based on personal knowledge, (2) not supported by authenticating records, (3) inadmissible hearsay, and (4) inconsistent with the affiants' previous sworn testimony. (Pls.' Mot. to Strike at 1.)

  Rule 56, which governs motions for summary judgment, provides that affidavits supporting a motion for summary judgment must be based on personal knowledge and must set forth a basis for the affiant's knowledge of the information in the affidavit. Fed.R.Civ.P. 56(e). When ruling on a motion for summary judgment, the Court may not rely on affidavits that do not conform to these rules. See Adusumilli v. City of Chicago, 164 F.3d 353, 359 (7th Cir. 1998). This Court has the discretion to strike all of an affidavit or only those portions which do not comply with Rule 56(e). See Buie v. Quad/Graphics, Inc., 366 F.3d 496, 505 (7th Cir. 2004). 1. Affidavit of John Horne

  Plaintiffs argue that paragraphs 3, 7, 8, 15, 16, 19, and 23 of Horne's affidavit should be stricken because the information contained therein is not within Horne's personal knowledge and is unsupported by authenticating documentation. In addition to their specific objections to paragraphs 3, 7, 8, 15, 16, 19, and 23, Plaintiffs also argue generally that Horne's testimony does not provide a basis for his knowledge of the information contained in his affidavit.

  The challenged paragraphs in Horne's affidavit state:
3. The NSF is responsible for approximately 40% of Hyatt's annual business.
7. In May 2001, I implemented cuts in travel and entertainment-related expenses for NSF offices, which resulted in a savings of approximately $350,000.
8. The terrorist attacks of September 11, 2001 greatly exacerbated the downturn in the hospitality and other industries. Immediately following September 11, 2001, I further reduced the NSF budget by canceling certain NSF customer events, such as the Tournament of Champions and Wine Weekend. These reductions resulted in an additional savings of $150,000.
15. In making the decision to eliminate Ms. Rocereto's position, I did not consult with her manager, John Hyland, and I did not examine her performance reviews. Instead, as with all the other NSF positions under consideration, my decision to eliminate Ms. Rocereto's position was based on the characteristics of her account base and Hyatt's ability to service such accounts at other locations. In addition, I did not consider Ms. Rocereto's maternity leave when making the decision to eliminate her position. Many NSF employees have taken maternity leave and have returned to their positions without incident, including, for example, Denise Cmiel, Jennifer Roman, Michelle Relecker, Bonnie Greenspan, Michelle Russell, Kathy Murphy and Lorraine McCormack. 16. After the elimination of Ms. Rocereto's position in the reduction in force, 26 of her 34 accounts were reassigned to Marilyn Brumbaugh, who was 56 years old at the time of the reduction in force. Of Ms. Rocereto's remaining accounts, all but three were assigned to other females in the NSF, and only four were assigned to individuals who were 10 or more years younger than Ms. Rocereto. One of those younger individuals, Jennifer Roman, received the Timco account. As I stated above, the Timco account was already fully "booked out" and lacked growth potential. Ms. Roman received no credit for the existing Timco bookings when she inherited the account. Ultimately, five of Rocereto's accounts were released to the field because they failed to meet the criteria for a national account. Ms. Roman operated out of Atlanta, where many of her customers were located, and had a greater diversity of business than Rocereto, some of which Roman brought with her from her former company.
19. On or about October 1, I met with Ms. Aylward to inform her that her position had been eliminated. Ms. Aylward's accounts were distributed among seven existing NSF employees, of whom five were female. Although a majority of Ms. Aylward's accounts were initially distributed to Jim Van Devender, several of those accounts were later released to the field because they did not qualify as national accounts.
23. On June 8, 2001, Ms. Wilcox went on unpaid leave, and thereafter voluntarily resigned her employment with Hyatt. From June 2001 until the termination of Ms. Aylward's employment in the fall 2001 reduction in force, I served as her de facto manager. At no point during that time period did Ms. Aylward contact me to complain about a lack of accommodations for her condition, or to complain about mistreatment of any kind.
(Horne Aff. ¶¶ 3, 7, 8, 15, 16, 19, 23.)

  The Court finds that Horne's affidavit does provide a basis for his knowledge of the facts contained in much of this testimony. The affidavit states that Horne was Assistant Vice President of Sales until May 2002, at which time he was promoted to Vice President of Sales. (Horne Aff. ¶ 1.) As Assistant Vice President of Sales, Horne managed the NSF, oversaw the personnel of the NSF, and was familiar with the account characteristics of his employees. (Horne Aff. ¶ 5.) He was also personally involved with selection of employees for the Fall 2001 RIF. (Horne Aff. ¶¶ 10-13.) Therefore, there is a basis in the affidavit for Horne's knowledge of the matters on which he testifies.

  An affiant who acts in a management capacity in a corporation will often become aware of the finances, organization and employees of the corporation. See, e.g., Boim v. Quranic Literacy Inst., 340 F. Supp. 2d 885, 925 (N.D. Ill. 2004). As Assistant Vice President of Sales, Horne managed and supervised the sales force and had personal knowledge of Hyatt's overall financial situation, Hyatt's organizational decisions, and the personnel and account characteristics of the employees whom he was charged with managing. Therefore, Horne's testimony regarding the financial condition of the corporation, corporate-level organizational decisions, the characteristics of employee account bases and the specific details of and motivations for the Fall 2001 RIF does not violate Rule 56(e). This testimony will not be stricken and will be considered in ruling on Hyatt's motion to dismiss.

  To the extent that Horne's affidavit references specific numbers and figures, as opposed to more general information that he would be familiar with in the course of his employment, the affidavit may not be based on his personal knowledge. For instance, while Horne would know in the course of his employment that the NSF was responsible for a major portion of Hyatt's annual sales, it is not clear that the precise figure of forty percent provided in paragraph 3 of his affidavit is similarly within his personal knowledge. The same can be said for Horne's specific claims in paragraphs 7 and 8. These figures appear to be based on reports and other financial records and require substantiating documentation. Therefore, the Court strikes the specific numbers which Horne provides in paragraphs 3 (NSF accounts for forty percent of Hyatt's business), 7 (savings of $350,000), and 8 (savings of $150,000) of his affidavit, but not his more general testimony in the remainder of paragraphs 3, 7, 8, 15, 16, 19, and 23.

  Plaintiffs also contend that Horne's testimony on the criteria used in selecting Aylward for termination in paragraph 17 of the affidavit should be stricken because it contradicts his deposition testimony. The Court disagrees with Plaintiffs' characterization of the testimony in paragraph 17. In his deposition, Horne stated that he (1) told Aylward that "Hyatt no longer needed an office at her address," (Horne Dep. at 48), and (2) planned to put most of Aylward's accounts with two other Hyatt employees. (Horne Dep. at 49.) In paragraph 17 of his affidavit, Horne states that Aylward's position was eliminated because "she had the lowest performing group of accounts of anyone in the NSF, and because many of her accounts were not truly national." (Horne Aff. ¶ 17.) There is no contradiction here: one piece of testimony refers to the explanation given to Aylward while the other refers to the selection process itself. Furthermore, the two explanations are not logically inconsistent, i.e., it is possible that Hyatt no longer needed an office at Aylward's address because ...


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