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KINNEY v. HAMILTON PARTNERS

April 6, 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. Plaintiffs complaint states three claims*fn1 — (1) race discrimination in violation of Title VII, (2) retaliation in violation of Title VII, and (3) breach of Plaintiffs 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 February 13, 2004, Defendant filed its motion for summary judgment. Defendant's motion is hereby granted. Apr 07, 2004

  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 Little v. Cox's Supermkts, 71 F.3d 637, 641 (7th Cir. 1995) (district court may strictly enforce Northern District of Illinois Local Rule 56.1); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994) (same).

  Statement of Facts

  On February 5, 2004, the Court ordered Plaintiff to file his response to Defendant's summary judgment motion on or before February 27, 2004. See Kinney v. Hamilton Partners, No. 03-3905 (N.D. III. Feb. 5, 2004) (order establishing briefing schedule for Defendant's summary judgment motion). This included Plaintiffs response to Defendant's Local Rule 56.1(a)(3) Statement of Material Facts to Which There is No Genuine Issue.*fn5 See N.D. Ill. L.R. 56.1(b). Nevertheless, Plaintiff failed to file his response to Defendant's statement of material facts until March 8, 2004, ten days after the date set by the Court. To place Plaintiffs tardiness in perspective, Defendant timely filed its reply brief five days before Plaintiff filed his response to Defendant's statement of material facts.*fn6

  While Plaintiff may be entitled to leniency and greater procedural protections than Defendant (an attorney-represented litigant), he is not "entitled to a general dispensation from the rules of procedure or court-imposed deadlines." Downs, 78 F.3d at 1257 (citation and internal quotation marks omitted); see also Members, 140 F.3d at 702 (same). Additionally, Plaintiff must comply with this Court's local rules concerning summary judgment motions, including Northern District of Illinois Local Rule 56.1. See Little, 71 F.3d at 641; Waldridge, 24 F.3d at 923-24; Tressel v. Combined Ins. Co. of Am., No. 01-6231, 2003 WL 1626528, at *4 (N.D. Ill. Mar. 27, 2003). Because Plaintiffs response to Defendant's statement of material facts was not filed in a timely fashion, the Court will disregard the statements included therein.*fn7

  Even if the Court were to consider Plaintiffs untimely response to Defendant's statement of material facts, it would not serve to create a genuine issue as to any material fact. As an initial matter, the statements included in paragraphs 1-7, 9-14, 16-20, 23-30, 32, 34, 37-46, and 49 were not accompanied by a citation to the record or any other supporting material. Therefore, these statements may be disregarded when deciding Defendant's motion. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) ("a mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material") (citation omitted); Little, 71 F.3d at 641 ("Local Rule 56.1 makes explicit the responding party's burden of controverting the movant's position with adequate citations to the record. . . . General principles of advocacy suggest . . . that a party contesting summary judgment has a responsibility . . . to `highlight which factual averments are in conflict as well as what record evidence there is to confirm the dispute.'") (citation omitted); Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th Cir. 1985) ("It bears repeating that the purpose of summary judgment is to determine whether there is any genuine issue of material fact in dispute and, if not, to render judgment in accordance with the law as applied to the established facts. The facts must be established through one of the vehicles designed to ensure reliability and veracity — depositions, answers to interrogatories, admissions and affidavits.); N.D. Ill. L.R. 56.1(b).*fn8 Furthermore, the exhibits and documents cited to support the statements included in paragraphs 8, 15, 21-22, 31, 33, 35-36, and 47-48 were not properly (1) incorporated by Plaintiffs response*fn9 or (2) authenticated, certified, or otherwise made admissible or usable at trial. Cf. Lamz, 321 F.3d at 682-83 (finding that party "failed in his obligation to support controverted or additional facts with citations to admissible evidence" even though he "sought to support his factual disagreements by affixing to his brief assorted material . . .; [without] ensur[ing] that he attached only admissible evidence"). "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 will not consider Exhibits A, B, C, E, F, G, H, I, or N or the statements purportedly derived from those exhibits. See 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); Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001) (same); Martz, 757 F.2d at 138. Indeed, it is well-established that "[supporting 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).

  Finally, Plaintiffs response to Defendant's statement of material facts does not incorporate or specifically cite to the deposition transcripts marked as Exhibits J, K, L, and M and attached to Plaintiffs brief in response to Defendant's summary judgment motion. Moreover, no citations to any of the transcripts may be found in Plaintiffs brief. These procedural errors doom Plaintiffs attempt to utilize the information contained therein. Indeed, the Court is under no duty to comb through the record, searching for evidence that could possibly support Plaintiffs claims. See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir. 2003) ("district courts . . . are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them") (citations omitted); Lamz, 321 F.3d at 683 ("A district court is not required to `wade through improper denials and legal argument in search of a genuinely disputed fact.'") (citation omitted); Little, 71 F.3d at 641 ("It is reasonable to assume that just as a district court is not required to `scour the record looking for factual disputes,' . . . it is not required to scour the party's various submissions to piece together appropriate arguments.") (citation omitted); Waldridge, 24 F.3d at 923-24 (district court may strictly enforce Northern District of Illinois Local Rule 56.1). Because Plaintiff has failed to comply with Northern

 District of Illinois Local Rule 56.1 with respect to Exhibits J, K, L, and M, the Court will disregard those exhibits insofar as they are referenced by Plaintiff in response to Defendant's motion.

  Because no properly supported facts or admissible evidence exist to controvert Defendant's statement of material facts, all properly supported statements included therein are deemed admitted. See Lamz, 321 F.3d at 683 ("We have consistently held that a failure to respond by the nonmovant as mandated by the local rules results in an admission.") (citation omitted); N.D. Ill. L.R. 56.1(b)(3)(B) ("All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.").

  Defendant develops, owns, and manages commercial properties in and around Chicago, Illinois. Plaintiff was hired by Defendant as a building engineer in June 2002. Upon his hiring, Plaintiff was assigned to a group of buildings, including a facility located at 3 Hawthorne in Vernon Hills, Illinois. Initially, Plaintiff reported to Lead Engineer Jerry McGuire.*fn10 After McGuire resigned in the Fall of 2002, Plaintiff reported to Defendant's newly hired Lead Engineer, Don Jordan.

  Plaintiff's formal education consists of a GED. Plaintiff has over fifteen years of experience working in the areas of heating, air conditioning, and refrigeration and holds a refrigeration certification from RSES, a refrigeration/engineering society. Prior to accepting a position with Defendant, Plaintiff (1) worked for Kraft Foods as a building engineer, (2) performed building maintenance for Motorola for three and a half ...


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