United States District Court, N.D. Illinois
March 25, 2004.
DARRYL W. KINNEY, Plaintiff,
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).
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).
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
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
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,
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
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
the adverse action, he is entitled to summary judgment." Stone, 281 F.3d
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
[EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTE]
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
"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
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
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
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)
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
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
[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
inappropriate and negates the need for any further analysis. See
Cerutti, 349 F.3d at 1060.
ORDERED: Plaintiff's amended motion for summary judgment  is