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KINNEY v. HAMILTON PARTNERS

United States District Court, N.D. Illinois


March 25, 2004.

DARRYL W. KINNEY, Plaintiff,
v.
HAMILTON PARTNERS, Defendant

The opinion of the court was delivered by: GEORGE LINDBERG, Senior District Judge

MEMORANDUM AND ORDER

On June 9, 2003, Plaintiff Darryl W. Kinney filed his Complaint of Employment Discrimination against Defendant Hamilton Partners. Plaintiff's complaint states three claims*fn1 — (1) race discrimination in violation of Title VII, (2) retaliation in violation of Title VII, and (3) breach of Plaintiff's severance agreement in violation of state law — and asks the Court, inter alia, to grant Plaintiff appropriate injunctive relief, lost wages, liquidated/double damages, front pay, compensatory damages, punitive damages, prejudgment interest, post-judgment interest, and costs.

On January 30, 2004, Plaintiff filed an amended motion for summary judgment. Plaintiffs motion is hereby denied.

  Legal Standards — Summary Judgment

  Summary judgment will be granted only "when 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.'" Cerutti v. BASF Corp., 349 F.3d 1055, 1060 (7th Cir. 2003) (quoting Fed.R.Civ.P. 56). Page 2 In making this determination, the Court must "constru[e] all facts . . . and draw[] all reasonable inferences from those facts . . . in favor of the . . . non-moving part[y]. . . ." Id. (citation omitted).

  Because Plaintiff is proceeding pro se in this civil action, he "benefit[s] from various procedural protections not otherwise afforded to the attorney-represented litigant . . ."*fn2 Downs v. Westphal, 78 F.3d 1252, 1257 (7th Cir. 1996) (citation and internal quotation marks omitted). However, Plaintiff must still adhere to the Federal Rules of Civil Procedure and this District's local rules.*fn3 Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) ("rules apply to uncounseled litigants and must be enforced"). This includes compliance with rules governing summary judgment motions.*fn4 Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994) (district court may strictly enforce Northern District of Illinois Local Rule 56.1).

  Analysis

  Plaintiff's brief contains very little legal argument. Additionally, Plaintiff's "Statement of Facts" fails to comply with either Federal Rule of Civil Procedure 56 or Northern Page 3 District of Illinois Local Rule 56.1, and, in any event, does not establish that Plaintiff is entitled to judgment as a matter of law on any of his three stated claims. Therefore, the Court must deny Plaintiff's motion. See Cerutti, 349 F.3d at 1060.

  I. Title VII — Race Discrimination

  Plaintiff may establish his "claim of race discrimination . . . in one of two ways — under the direct method or the indirect burden-shifting method. . . ." Haywood v. Lucent Techs., Inc., 323 F.3d 524, 529 (7th Cir. 2003) (citations omitted). The direct method permits Plaintiff to "show either through direct or circumstantial evidence that the employer's decision to take the adverse job action was motivated by an impermissible purpose, such as h[is] race or national origin." Id. (citations omitted). On the other hand, the indirect method requires Plaintiff to establish "that: (1) []he was a member of a protected class; (2) []he was meeting h[is] employer's legitimate job expectations; (3) []he suffered an adverse employment action; and (4) similarly situated employees not in the protected class were treated more favorably." Id. at 530 (citations omitted); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545 (7th Cir. 2002) (same). If Plaintiff successfully establishes these four elements, the burden of production would shift to Defendant "to articulate a legitimate nondiscriminatory reason for its action." Peters, 307 F.3d at 545 (citations omitted); Curry v. Menard, Inc., 270 F.3d 473, 477 (7th Cir. 2001) (same). Assuming Defendant satisfies its burden, the burden would then shift "back to [Plaintiff] to show that the reason set forth by [Defendant] was not its true reason, but a pretext — `a dishonest explanation, a lie rather than an oddity or an error.'" Peters, 307 F.3d at 545 (citation omitted); Curry, 270 F.3d at 477 (same).

  Plaintiffs statement of facts provides no direct or circumstantial evidence that Plaintiff suffered an adverse job action as a result of a racially-motivated decision. Therefore, Page 4 Plaintiff must rely on the indirect, burden-shifting method of proof to establish a prima facie case of race discrimination under Title VII. Plaintiff's effort falls short of that mark.

  Plaintiff's statement of facts includes no evidence to establish that (1) Plaintiff was meeting Defendant's legitimate job expectations*fn5 or (2) similarly situated employees who were not in his protected class were treated more favorably. In fact, Plaintiff altogether ignores the issue of Defendant's treatment of its other employees, whether similarly situated or not. These omissions negate the need for any further analysis. Even if all of Plaintiff's stated facts and evidence were admissible and uncontested, they would not establish a prima facie case of race discrimination under Title VII. Accordingly, summary judgment may not be granted. See Cerutti, 349 F.3d at 1060.

  II. Title VII — Retaliation

  Once again, Plaintiff has "two (and only two) distinct routes to obtaining . . . summary judgment." Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002). These two routes may be summarized as follows:

One, the more straightforward, . . . is to present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that he engaged in protected activity (filing a charge of discrimination) and as a result suffered the adverse employment action of which he complains. . . . The second route . . . requires the plaintiff to show that after filing the charge only he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though he was performing his job in a satisfactory manner.
Id. (citation omitted); see also Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 897 (7th Cir. 2003). Under the latter route, "[i]f the defendant presents unrebutted evidence of a noninvidious reason for Page 5 the adverse action, he is entitled to summary judgment." Stone, 281 F.3d at 644.

  Plaintiff's statement of facts includes, inter alia, a number of disjointed allegations that purportedly support Plaintiff's retaliation claim.*fn6 Even when combined, these Page 6

  [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTE] Page 7 allegations do not warrant an award of summary judgment.

  As an initial matter, the exhibits and documents cited to support Plaintiff's statement of facts were not properly authenticated, certified, or otherwise made admissible or usable at trial.*fn7 Page 8 "To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Scott v. Edinburg, 346 F.3d 752, 759-60 n.7 (7th Cir. 2003) (citation omitted). Accordingly, the Court may not consider the exhibits attached to Plaintiff's motion or the statements purportedly derived from those exhibits. Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000) ("Sworn testimony is not the only basis on which summary judgment may be granted; rather, `the court may consider any material that would be admissible or usable at trial,' . . . including properly authenticated and admissible documents or exhibits.") (citations and internal quotation marks omitted); see also Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001) (same), Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th Cir. 1985) ("The facts must be established through one of the vehicles designed to ensure reliability and veracity — depositions, answers to interrogatories, admissions and affidavits.). Indeed, it is well-established that "[s]upporting materials designed to establish issues of fact in a summary judgment proceeding `must be established through one of the vehicles designed to ensure reliability and veracity — depositions, answers to interrogatories, admissions and affidavits. When a party seeks to offer evidence through other exhibits, they must be identified by affidavit or otherwise made admissible in evidence."' Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987) (citations omitted).

  It is worth mentioning that Plaintiff would not be entitled to summary judgment on his retaliation claim even if the Court fully considered and weighed all of the statements included in Plaintiff's statement of facts. Taken together, the statements do not establish a prima facie case Page 9 of retaliation. On one hand, Plaintiff fails to produce any "direct evidence . . . that he engaged in protected activity . . . and as a result suffered the adverse employment action of which he complains."*fn8 Stone, 281 F.3d at 644. On the other hand, Plaintiff never establishes that (1) he was performing his job in a satisfactory manner*fn9 or (2) "after filing the c[omplaint] only he, and not any similarly situated employee who did not file a c[omplaint], was subjected to an adverse employment action." See id. Again, Plaintiff altogether ignores the issue of Defendant's treatment of its other employees, whether similarly situated or not. Because Plaintiff has failed to establish a prima facie case, additional analysis is unnecessary. See Cerutti, 349 F.3d at 1060.

  III. Breach of Severance Agreement

  Because this claim resides in state law, a determination must be made as to which state's law should be applied. To make this decision, the Court refers to the Illinois choice of law rules. See Midwest Grain Prods, of Ill., Inc. v. Productization, Inc., 228 F.3d 784, 787 (7th Cir. 2000).

  Plaintiff's severance agreement provides that the agreement is to be "governed by Illinois law." The Illinois Supreme Court has stated that such provisions will "[g]enerally . . . be honored." Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 770 N.E.2d 177, 194 (Ill. 2002) (citations omitted); see also Kohler v. Leslie Hindman, Inc., 80 F.3d 1181, 1185 (7th Cir. 1996) ("Illinois law respects the contract's choice-of-law clause as long as the contract is valid.") (citation omitted); Baskin-Robbins Inc. v. Patel, 264 F. Supp.2d 607, 610 (N.D. Ill. 2003) (same). Neither Page 10 party has provided any admissible evidence that suggests that the settlement agreement is invalid. Therefore, it is perfectly reasonable to invoke the agreement's choice-of-law provision and apply Illinois contract law.

  Additionally, the Court notes that Illinois contract law would apply even if the choice-of-law provision was unenforceable. In the absence of an enforceable choice-of-law provision, the "most significant contacts" test is applied. See West Suburban Bank of Darien v. Badger Mut. Ins. Co., 141 F.3d 720, 724 (7th Cir. 1998); Manufacturers Life Ins Co. v. Mascon Info. Techs. Ltd., 270 F. Supp.2d 1009, 1013 (N.D. Ill. 2003); Olsen v. Celano, 600 N.E.2d 1257, 1260 (Ill.App. Ct. 1992), When applying that test, a court may consider, inter alia, "the place of contracting, negotiation, performance, location of the subject matter of the contract and the domicile, residence, place of incorporation, and business of the parties." Mascon, 270 F. Supp.2d at 1013 (citation omitted); Olsen, 600 N.E.2d at 1260.

  Neither party argues that Illinois contract law should not be applied. Indeed, Plaintiff's severance agreement was contracted, negotiated, and performed entirely within the state of Illinois. The subject matter of the contract — Plaintiff's employment — also took place in Illinois. Additionally, Plaintiff is domiciled and resides in Illinois and Defendant conducts business in Illinois. For all of these reasons, the Court will apply Illinois contract law to Plaintiff's state law claim.

  Plaintiff's statement of facts includes minimal support for his argument that Defendant breached the severance agreement by contesting Plaintiff's February 2003 unemployment claim. Plaintiff states that Defendant (1) "violated the agreement by contesting unemployment and asking for a hearing" and (2) "could show no evidence . . . to support and [sic] misconduct on Page 11 [Plaintiff's] behalf." Once again, both of these statements ARB purportedly supported by exhibits and documents that have not been properly authenticated, certified, or otherwise made admissible or usable at trial. See Scott, 346 F.3d at 759-60 n.7. As such, they may not be considered when deciding Plaintiff's motion. See Smith, 242 F.3d at 741; Woods, 234 F.3d at 988; Friedel, 832 F.2d at 970; Martz, 757 F.2d at 138.

  Even if the Court were to fully consider and weigh Plaintiff's statement of facts and liberally construe the same as establishing Plaintiff's prima facie case (but see Cerutti, 349 F.3d at 1060), Plaintiff would not be entitled to judgment as a matter of law. To secure a favorable judgment on his state law claim, Plaintiff must show "that the parties agreed to give [P]laintiff severance pay under certain terms and conditions, that those conditions were met, and that [D]efendant failed to perform under the terms of the agreement." Kennedy v. Four Boys Labor Serv., Inc., 657 N.E.2d 1130, 1136 (Ill.App. Ct. 1995) (citations omitted); see also Powers v. Arachnid, Inc., 617 N.E.2d 864, 868-69 (Ill.App. Ct. 1993). However, Defendant has established that genuine issues of material fact exist with respect to at least the second and third elements of Plaintiff's claim. For example, Plaintiff conceded in his deposition that Defendant "agreed it would not contest any unemployment claim filed after April 1, 2003[,]" and that Plaintiff "ignored the Agreement and filed a claim for unemployment in February 2003."*fn10 This dispute alone renders summary judgment Page 12 inappropriate and negates the need for any further analysis. See Cerutti, 349 F.3d at 1060.

  ORDERED: Plaintiff's amended motion for summary judgment [36] is denied.


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