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’ 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 Plaintiffs 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.
I. 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 (7" 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 (7" Cir. 2003).

Under the latter route, “[i]f the defendant presents unrebutted evidence of a noninvidious reason for

*Defendant’s response to Plaintiffs statement of facts suggests, instead, that Plaintiff was
not meeting those expectations. (See Def.’s Resp. to Pl.’s Statement of Facts, at 8; Def.’s L.R.
56.1(a)(3) Statement of Material Facts, at {J 17-24.)

4


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.”* Stone, 281 F.3d at 644. On the other hand, Plaintiff never establishes that (1) he was
performing his job in a satisfactory manner’ or (2) “after filing the c[omplaint] only he, and not any
similarly situated employee who did not file a clomplaint], 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 (7° Cir.
2000).

Plaintiff's severance agreement provides that the agreement is to be “governed by
INinois 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 (II.
2002) (citations omitted); see also Kohler v. Leslie Hindman, Inc., 80 F.3d 1181, 1185 (7" Cir. 1996)
(“Tilinois 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

‘Instead, Plaintiff offers only the bald assertion that when Don Jordan “was hired[,] he
was told as part of his job to get rid of [Plaintiff] for making a complaint ....” This allegation
is pure hearsay.

°See supra note 5.


job done correctly... . (See Exhibit B)

* Oe Ok

I was written up for causing an unnecessary investigation when I
told Rick Staback that Don Jordan tried to get a Union started. I
was told that I tried to get everyone in the Union, and the write up
was by Don Jordan, Jim Kelly and was witnessed by Rick Staback
and Mike Burback, Don Jordan told me after I was fired that he
was in the Union, and he and Mike lied because they were scared
for there jobs and it was recorded. In Mike Burback and Lenard
Wasilewsi depositions, they all said it was Don Jordan who tried to
get them into the union. Nancy Lunct said in her Deposition that I
told her about Don Jordan trying to get us into the Union.

ek Ok

The Plaintiff was off work on sick leave excused by doctors when.
he was fired, I returned to work and was told I was not allowed in
the building by Jim Kelly and was told to call Rick Staback to find
out why, I did I also received this letter on Tuesday at home. (See
Exhibit E and Letters of Events in Exhibit C)

OR OR

Plaintiff was given a severance without choice and was told that
Hamilton Partners would contest me getting unemployment if I did
not sign it and I would get an unfavorable recommendation to
future employers by Rick Staback. I was given two documents by
Rick Staback to prove he could stop my unemployment. (See
Exhibit C Letters of Events and Exhibit G)

hk ok

Plaintiff and Rick Staback had a sworn taped hearing for
unemployment with Charles Kohr IDES referee where Rick
Staback told Charles Kohr that I was fired for not doing my job
correctly and I signed a severance agreement ,and Mr. Kohr asked
Rick Staback was Darryl Kinney given a chance to improve or
explain, Rick said no, Mr. Kohr said you cant stop someone from
getting unemployment if you did not give them any choice but to
leave there job, report by Charles Kohr states Rick Staback could

6


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 Plaintiffs retaliation claim.‘ Even when combined, these

“With respect to retaliation, Plaintiff's statement of facts provides:

Plaintiff wrote events down and faxed them to Rick Staback as
they occurred, even after my firing. (See Letters of Events Exhibit
Cc)

The Plaintiff did make a complaint against an employee of . . . one
of Hamilton partners customers for sexual harassment .And the
employee was disciplined by H.R. Olivia Stewart. Causing
Hamilton Partners to try and end my employment through
Retaliation. (See Letters of Events Exhibit C attached and also
included in Complaint)

The Plaintiff was video taped by cameras added after I made a
complaint about sabotage to my work area without my knowing...
. Verified by Rick Staback in my Deposition of him, although I
found the cameras myself while employed by Hamilton Partners.
(See Exhibit A, Service Response)

ek Oe

I was written up for misrepresenting myself as a HVAC tech...
and Put on a Poor performance Remediation Program, (See
Norman Woods of write up 2. A in Exhibit A) I was told not to
waste time figuring the problem out it was under warranty call
Martin Petersen its there responsibility by Jim Kelly, I Did, Dave
R. of M. Petersen found the exact same conclusion after spending
7.25 hours total when I was given 1 hour total and still written up.
(See Exhibit A)

The Plaintiff took his job serious and always did his best to get the

5


“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 (7 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
(7° 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 (7" Cir. 2001) (same); Martz
v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7" 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 (7" 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

of the motion.”); Kinney v. Hamilton Partners, No. 03-3905 (N.D. Ill. Jan. 16, 2004) (order
striking Plaintiff's summary judgment motion and advising Plaintiff of requirements of N.D. Ill.
LR. 56.1).


Minute Order Form (06°97)

United States District Court, Northern District of Illinois

N: of igned Jud, j Sitting Judge if Oth
anor Magistrate Judge George W. Lindberg than Assigned Judge
CASE NUMBER 03 C 3905 DATE 3/25/2004
CASE Darryl W. Kinney vs. Hamilton Partners
TITLE

MOTION: of the motion being presented.]

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) tate briefly the nature

DOCKET ENTRY:

qd) o Filed motion of [ use listing in “Motion” box above.]

COFRCP4(m) CLocal Rule 41.1 COFRCP41(a)(1) OC FRCP41(a)(2).

memorandum and order.

(1) ff (For further detail see order attached to the original minute order.]

(2) Oo Brief in support of motion due

(3) ag Answer brief to motion due___. Reply to answer brief due__

(4) oO Ruling/Hearingon__ssetfor__—_at

(5) 0 Status hearing[held/continued to] [set for/re-set for]on___——ssetfor_aat_

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_—— saat.
(7) 0 Trial[set for/re-set for}on___at

(8) Oo (Bench/Jury trial] [Hearing] held/continued to at

(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

ao) [Other docket entry] Plaintiff's amended motion for summary judgment (36) is denied. Enter

No notices required, advised in open court.

No notices required.
number of naices

Document
Number

Notices mailed by judge’s staff.

Notified counsel by telephone.

Y | Docketing to mail notices.

Mail AO 450 form.

AOIT

MAR 25 2004

date mailed notice

Copy to judge/magistrate judge

courtroom
SLB deputy’s
initials

Date/time received in,

{

central Clerk's Office ling deputy ina



[Plaintiffs] behalf.” Once again, both of these statements are 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 Plaintiffs 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 Plaintiffs 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.”"° This dispute alone renders summary judgment

“Plaintiff essentially conceded that Defendant did not violate the severance agreement by
contesting his February 2003 unemployment claim:

Q. Well, now, ... did you ever have a discussion with Mr.
Staback that the company would not contest your
unemployment claim filed on April 1° - if you filed it on
April 1“, 2003, after three months of severance had
elapsed?

A. Yes.

11


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 (7" 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 Ilinois 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 Plaintiffs 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

10


allegations do not warrant an award of summary judgment.
Asan 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.’

show no evidence of any kind to support and misconduct on my
behalf. (See Exhibit H)

In Rick Stabacks deposition, he said I could go back to work and I
chose to sign a severance agreement. And I told him is that your
final answer, and reminded him of what he said, to Charles Kohr of
the IDES that I was fired because of my performance. Another
Federal agency, and he remarked I said they could tape me not you,
the truth cant change whether its taped or not or its called perjury.

ek K

Don Jordan told me he was sorry for his part in the retaliation by
Hamilton Partners. And he said I was the best Tech that Hamilton
Partners had in his opinion, and he said when he was hired he was
told as part of his job to get rid of me for making a complaint... .
This was a taped conversation.

ee OR

Plaintiff was fired 2 days after filing a charge with the EEOC. (See
Exhibit F)

7Some of the allegations included within Plaintiffs statement of facts were not
accompanied by a citation to the record or any other supporting material. Such statements may
be disregarded when deciding Plaintiff's motion. See Martz v. Union Labor Life Ins. Co., 757
F.2d 135, 138 (7" 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 (“The statement. . .
shall consist of short numbered paragraphs, including within each paragraph specific references
to the affidavits, parts of the record, and other supporting materials relied upon to support the
facts set forth in that paragraph. Failure to submit such a statement constitutes grounds for denial

7


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 (7 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.”
Jd. (citations omitted). On the other hand, the indirect method requires Plaintiff to establish “that:
(1) [Jhe 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.” Jd. at 530 (citations omitted); Peters v.
Renaissance Hotel Operating Co., 307 F.3d 535, 545 (7" 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 y. Menard, Inc., 270 F.3d 473, 477 (7" 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).

Plaintiff’s 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,



“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]....” /d. (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 ....”? Downs v.
Westphal, 78 F.3d 1252, 1257 (7" 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.’ Members v. Paige, 140 F.3d 699, 702 (7" Cir. 1998) (“rules apply to uncounseled litigants
and must be enforced”). This includes compliance with rules governing summary judgment
motions.’ Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 923-24 (7" 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

*See also Tressel v. Combined Ins. Co. of Am., No. 01-6231, 2003 WL 1626528, at *4
(N.D. Ill. Mar. 27, 2003) (“pro se litigants are granted more leniency than a party who is
represented by [counsel]”) (citation omitted); Stevens v. Navistar Int'l Transp. Corp., 244 F.
Supp. 2d 906, 910 (N.D. Il. 2002) (“the Court reads a pro se plaintiff’s pleadings liberally’)
(citation omitted).

3See also Downs, 78 F.3d at 1257 (“pro se litigants are not entitled to a general
dispensation from the rules of procedure or court-imposed deadlines”) (citation and internal
quotation marks omitted).

‘See also Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7" 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); Tressel, No. 01-
6231, 2003 WL 1626528, at *4 (“the pro se litigant is still required to follow the rules of
procedure and LR 56.1") (citation omitted); Stevens, 244 F. Supp. 2d at 910 (same as Johnson
and Tressel).


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DARRYL W. KINNEY, )
)
Plaintiff, ) Case No. 03 C 3905
) we
v. ) George W, Lindberg
) Senior United States District Nudge
HAMILTON PARTNERS, ) * a
) AAR 9 > 200s
Defendant. ) MAR &
MEMORANDUM AND ORDER

On June 9, 2003, Plaintiff Darryl W. Kinney filed his Coniplain’ of Employment
Discrimination against Defendant Hamilton Partners. Plaintiffs complaint states three claims’ — (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.
Plaintiff's 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 (7 Cir. 2003) (quoting Fed. R. Civ. P. 56).

'See Kinney v. Hamilton Partners, No. 03-3905 (N.D. Ill. Aug. 6, 2003) (order denying
Defendant’s motion to dismiss).


inappropriate and negates the need for any further analysis. See Ceruiti, 349 F.3d at 1060.

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

DATED: WAR 25 2004 ENTER:
HON. GEORGE W. LINDBERG(/
United States District Judge
Q. And you, of course, filed it before April 1*, 2003, right?
A, Right. And they wouldn’t give me unemployment because

of the amount that I told him. But Mr. Staback contested
that, which you should have the document because I sent it
to you, that breached this contract anyway.

Would you point to the paragraph that it breached, sir?
The April 1“, will not contest your unemployment if filed
on April 1“ after three months of severance has elapsed.
And when did you file it, sir?

February something, but —

Right. So they said they would not contest the
unemployment claim filed on April 1, 2003, but you filed
it before April 1“, 2003, right?

Correct.

So they didn’t violate the agreement, because, in fact, you
filed it before the April 1“ date, which included your three
months of severance, right?

I filed it before that, yes, but they didn’t start it. They
weren’t starting anything until that date — weil, they still
would have been short anyway, but until April 1%.

Well, they paid you three months of severance, right?
Right. No, he took extra money out of there, which
wouldn’t have made three months by a couple of weeks.
Because they took the federal withholding taxes out of
there?

Right.

Which they’re obligated to do under federal law, right?
Right.

So you received three months of gross pay; is that correct,
sir?

Gross pay, yes.

OFrQO Pe

Or

>

OPOP DO PL

>

(Kinney Dep., at 38, 1. 1 to 39, 1. 23 (Nov. 19, 2003).)

12