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Henderson v. May Department Stores Co.

July 30, 2008

DEWAYNE G. HENDERSON, PLAINTIFF,
v.
THE MAY DEPARTMENT STORES COMPANY AND AFTER HOURS FORMALWEAR, DEFENDANT.



Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

This summary judgment is unusual because Defendants primarily base it upon the premise that Plaintiff's sworn testimony demonstrates that he cannot sustain his claim of employment discrimination. The reason for this approach is that Plaintiff took no depositions from any potential witnesses (despite Plaintiff's knowledge of the names) and offers no documentary evidence to support his claim. This means that the very few things that Plaintiff heard from others that might support his claim are inadmissible and may not be relied upon to resist summary judgment. See Stimett v. Iron Work Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002).

Defendants concede, as they must, that Plaintiff believed and perceived that his experiences while employed as a store manager were affected, in a legally significant sense, by his race and his employer's desire to retaliate against him for various EEOC complaints that he filed. However, Defendants claim that Plaintiff has no admissible evidence of a single act by his employer on which he could rationally base these conclusion of discrimination and retaliation.

Plaintiff's first contention-that Defendants terminated him-serves as a prime example of the record before me. Plaintiff was present at his performance review on April 5, 2007. The review apparently identified shortcomings that his employers saw in his work. Plaintiff requested that a witness be present at the review; management refused this request. Plaintiff did not like the tone or tenor of the review. This is not surprising. Plaintiff testified about the sequence of events that took place at his review this way:

A: . . . I was terminated.

Q: Actually, you left the key on the table and walked out of your April 5, 2007 evaluation, correct?

A: Yes.

Q: You walked out of that meeting, correct?

A: I didn't crawl out of the meeting. I walked out technically, yes.

Q: And that was the last time you were employed with After Hours, correct?

A: Yes.

Q: In fact . . . wasn't [sic] Reiter's last words to you don't resign? . . .

A: Yes, but I never said I was resigning.

Q: My question was the last thing Reiter said . . . was don't ...


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