be disregarded. Additionally, while “[d)uress is a defense to an otherwise valid contract[,]”:

{dJuress is not shown by the fact that one was subjected to mere

annoyance, vexation, personal embarrassment, a difficult bargaining

position or the pressure of financial circumstances. There must have

been some imposition, oppression, undue influence, or the taking of

undue advantage of the business or financia} stress or extreme

necessities or weakness[es] of another.
Pierce I, 65 F.3d at 569 (citations omitted), As stated in Pierce J, the “pressure of financial
circumstances” imposed by a potential denial of unemployment benefits and the “personal
embarrassment” that may result from unfavorable employment references would not constitute
duress even if such pressure and embarrassment could be substantiated. Finally, “one cannot
successfully claim duress as a defense to a contract when he had an alternative to signing the
agreement.” /d. Here, Plaintiff could have continued to pursue his EEOC charge and filed a claim
for unemployment benefits despite the fact that Defendant may have contested the same. Because
he had alternatives to signing the severance agreement, his duress defense fails.

Because the facts set forth by Defendant do not suggest that Plaintiff was subjected
to any improper conduct on the part of Defendant, this factor favors Defendant.

* OK

An analysis of the totality of the circumstances establishes that Plaintiff knowingly
and voluntarily released and waived his Title VII claims against Defendant. Because each of the
Pierce I factors, the admissible evidence, and all of the substantiated facts considered by the Court
favor Defendant, the Court finds Plaintiff's release and waiver to be valid and enforceable. In light
of that finding, there is no need to evaluate the merits of Plaintiff's Title VII claims and summary
judgment may be granted. See Cerutti, 349 F.3d at 1060.

I. Breach of Plaintiff’s Severance Agreement

19


finding that the February 6 severance agreement constituted a valid and enforceable waiver of
Plaintiffs Title VII race discrimination and retaliation claims.

Even if the Court were to continue its analysis and presume that Plaintiff had met his
burden of production, the result would not change. While it is true that “the party seeking to enforce
awaiver of... rights .. . bear[s] the burden of proving knowing and voluntary consent{,]” the Court
is convinced that Defendant would be able to satisfy its burden. See Pierce II, 110 F.3d at 438.

A. Representation by and/or Consultation with Counsel

Discussion begins here because “a plaintiff who executes a release pursuant to the
advice of independent counsel, or a party whose attorney actively negotiates the release, is presumed
to have executed the document knowingly and voluntarily absent claims of fraud or duress.” Pierce
J, 65 F.3d at 571 n.1 (citation omitted); see also Riley, 881 F.2d at 372 (“This Court has similarly
refused to allow a plaintiff to escape the consequences of a Title VII settlement entered into under
the advice of the plaintiffs chosen counsel, although the Court was careful to note that competency
of counsel is not an appropriate inquiry to consider in evaluating whether a settlement is knowingly
reached.”); Donelson v. City of Chicago, 272 F. Supp. 2d 717, 728 (N.D. Ill. 2003) (“Where the
plaintiff, with the advice of independent counsel, executes an unambiguously-worded release of Title
VII rights, the settlement is deemed voluntary and knowing ~ and hence, binding.”) (citations
omitted). Here, the February 6 severance agreement expressly advised Plaintiff “to consult with an
attorney before signing [the same].” The facts indicate that Plaintiff heeded that advice. Indeed,
Plaintiff spoke with an attorney, Ross Peters, about the termination of his employment on two
occasions. Initially, Plaintiff spoke with Peters on February 5, 2003 to discuss his legal rights with

respect to the termination of his employment and the issue of severance pay. That conversation took

13


fashion, the Court will disregard the statements included therein.”

Even if the Court were to consider Plaintiff's 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 (7" 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 (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, ifnot, 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)*.

7On March 17, 2004, Plaintiff filed “Plaintiffs Reply to Defendants Reply to Plaintiffs
Response to Defendants Local Rule 56.1(a)(3) Statement of Facts to Which There is No Genuine
Issue.” Plaintiff is not authorized under Northern District of Illinois Local Rule 56.1 to file such
a reply, and at no time did he obtain leave from the Court to do so. Because Plaintiff's March 17
filing is inappropriate and plagued by the same procedural defects as his untimely March 8
response to Defendant’s statement of material facts, it will be disregarded.

‘Northern District of Illinois Local Rule 56.1(b) provides, in part:


Because summary judgment will be entered in favor of Defendant on all of Plaintiff's
federal claims, the Court declines to exercise supplemental jurisdiction to decide Plaintiff's state law
claim for breach of the February 6 severance agreement, See 28 U.S.C. § 1367(c); Ryan v. Il. Dep't
of Children & Family Servs., 185 F.3d 751, 764-65 (7" Cir. 1999),

ORDERED: Defendant’s motion for summary judgment [38] is granted. Judgment
will be entered in favor of Defendant on Plaintiff's Title VI race discrimination and retaliation
claims included in his Complaint of Employment Discrimination [1]. Plaintiffs state law breach
of severance agreement claim is dismissed without prejudice. 28 U.S.C. § 1367(c). Judgment will

be set forth on a separate document and entered in the civil docket. Fed. R. Civ. P. 58, 79(a).

APR OS 2004
DATED: ENTER:

HON. GEORGE W. LINDBERG
United States District Judge


Plaintiff could not receive his severance benefits until it had expired. Because the Court has not
been provided with any evidence that suggests Plaintiff was not afforded sufficient time to make his
decision, this factor favors Defendant.

F Whether Plaintiff Actually Read the Severance Agreement and Considered its
Terms Prior to Signing It

Plaintiff baldly asserts that he did not read the severance agreement prior to signing
it.”! While this contention may help to bolster Plaintiff's suit, it does not preclude a finding that
Plaintiff knowingly and voluntarily released and waived his Title VII claims. First, Plaintiff was
offered a copy of the severance agreement, but chose not to take it. It would be unjust to penalize
Defendant for Plaintiffs foolhardy decision. Second, Plaintiff was given up to twenty-eight days
(twenty-one days prior to signing the agreement, and seven days after signing the agreement) to read
and review the severance agreement. His failure to do so indicates that he never intended to read and
review the agreement. Finally, Plaintiff consulted with an attorney on two occasions about the
termination of his employment and the issue of severance pay. Therefore, it is reasonable to
conclude that Plaintiff had access to assistance in reviewing the agreement should he have desired
to do so. While in some cases a plaintiff's failure to read the agreement would favor a finding that
the release and waiver included therein were not knowing and voluntary, it would be unjust in this
case to penalize Defendant for Plaintiffs own decision and actions. Since no evidence was offered

to establish that Plaintiff did not have time to read the agreement, was not afforded an opportunity

2'The February 6 severance agreement specifically provides that “[b]y signing this letter
Agreement, [Plaintiff] acknowledge[s] that [he has] read it and understand{s] it... .” Therefore,
Plaintiffs signature at the bottom of the agreement arguably belies Plaintiffs unsubstantiated
claim that he never read the agreement. Nevertheless, the Court will abide by its duty to construe
all facts and draw all reasonable inferences in Plaintiffs favor.

17


On January 27, 2003, Kelly provided Plaintiff with a memorandum that directed
Plaintiff to improve his performance within forty-five days, or face termination. Plaintiffreceived
acopy of the memorandum, but refused to sign the document because he did not believe that Kelly’s
warning was justified.

Plaintiff left work early on January 29, 2003, taking a partial sick day. Plaintiff also
called Kelly on January 29, 2003 to let him know that Plaintiff would be taking sick days on January
30, 2003 and January 31, 2003, and that he would return to work on February 3, 2003 with a note
from his doctor. Nevertheless, Plaintiffarrived at work on January 31, 2003 to pick up his paycheck.
That same day, Plaintiff's cell phone was found in the parking lot of a building managed by
Defendant.

Plaintiff did not report to work on February 3, 2003 or notify Defendant of his
absence. Kelly made several attempts to page Plaintiff, but did not receive an answer. Kelly
informed Senior Asset Manager Rick Staback of Plaintiff’s absence and the discovery of Plaintiff's
cell phone. Staback prepared a letter to Plaintiff advising him that Defendant was presuming that
Plaintiff had terminated his employment with Defendant. Plaintiff acknowledges receiving
Staback’s letter.

On some date prior to February 5, 2003, Staback received an EEOC charge filed by
Plaintiff against Defendant. After receiving the charge, Staback met with Plaintiff on February 5,
2003 and February 6, 2003 at Defendant’s offices.'* During the February 5 and February 6 meetings,

Staback informed Plaintiff that “because of ongoing problems. . . things were not working out” and

'4Plaintiff is seventy-two inches tall and weighs 275 pounds, and admittedly was not
intimidated by Staback who is seventy-three inches tall and weighs 175 pounds.

9


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); Smith y. City of Chicago, 242 F.3d 737, 741 (7" Cir. 2001)
(same); Martz, 757 F.2d at 138. 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).

Finally, Plaintiff's 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 Plaintiff's brief in response to Defendant’s summary judgment motion. Moreover, no
citations to any of the transcripts may be found in Plaintiff’s brief. These procedural errors doom
Plaintiff's 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 Plaintiff's claims.
See 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); 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


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 Plaintiff's
response’ 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 (7" 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

Each party opposing a motion filed pursuant to Fed. R. Civ. P. 56
shall serve and file . . . a concise response to the movant’s
statement that shall contain: (A) a response to each numbered
paragraph in the moving party’s statement, including, in the case of
any disagreement, specific references to the affidavits, parts of the
record, and other supporting materials relied upon, and (B) a
statement, consisting of short numbered paragraphs, of any
additional facts that require the denial of summary judgment,
including references to the affidavits, parts of the record, and other
supporting material relied upon. 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.

N.D. Ill. L.R. 56.1(b) (emphasis added).

°Plaintiff’s Exhibits A, B, C, E, F, G, H, and I were submitted with Plaintiff's summary
judgment motion. While many of those exhibits were cited in Plaintiffs response to Defendant’s
statement of material facts, they were not submitted with the same. Nevertheless, this fact is of
little consequence in light of the other procedural defects that plague Plaintiff's filings.

5


to read the agreement, or received advice that he should not or need not read the agreement, this
factor favors Defendant. See Pierce I, 65 F.3d at 572 (recognizing an “important federal policy: the
encouragement of voluntary settlement of claims”).

G. Whether Consideration Given in Exchange for Waiver Exceeded Benefits to
Which Plaintiff was Already Entitled by Contract or Law

In exchange for his release and waiver of his legal claims, Plaintiff was provided,
inter alia, three months of severance pay ($12,500.04), one vacation day, and an agreement not to
contest his unemployment claim filed on or after April 1, 2003. No evidence has been offered to
suggest that these benefits were already owed to Plaintiff under an existing contract or the law. In
fact, Defendant has provided evidence that all of the above-listed benefits were specifically provided
to Plaintiff in exchange for the aforementioned release and waiver. Therefore, the Court must
conclude that consideration above and beyond what Plaintiff was owed by contract or under the law
is present here.”

HH. Whether Plaintiff’s Release was Induced by Improper Conduct on Defendant’s
Part

Plaintiff argues in his brief that he signed the severance agreement “under duress”
because he had “no choice but to sign a severance agreement or have [his] unemployment stopped
and get unfavorable references to further employers.” He also claims that he was “under medication
causing unclear thought” at the time he signed the agreement. As an initial matter, Plaintiff offers

absolutely no admissible evidence to substantiate these arguments. For this reason alone, they may

21t is worth mentioning that Plaintiff has never returned the severance pay he accepted in
exchange for the release and waiver of his legal claims. See Rinaldi v. World Book, Inc., No. 00
C 3573, 2001 WL 477145, at *6 (N.D. Ill. May 3, 2001) (“By retaining the benefits, plaintiffs
ratified the release, and they cannot now void the contract.”) (citations omitted).

18


position with Defendant, Plaintiff (1) worked for Kraft Foods as a building engineer, (2) performed
building maintenance for Motorola for three and a half years,'! and (3) completed various heating
and air conditioning projects for Heat It/Cool It from 1989 to 1994.

During the first week of October 2002, Plaintiff complained to Olivia Stuart, Human
Resources Representative for Brunswick Corporation (a tenant of one of the buildings managed by
Defendant) that a Brunswick employee, Jim Nelson, had made inappropriate comments to Plaintiff,
including comments about Plaintiff allegedly “being gay.” As a result of Plaintiffs complaint,
Brunswick disciplined Nelson. Additionally, Defendant independently interviewed witnesses
concerning Plaintiff’s complaint.

On January 9, 2003, Plaintiff received a written warning from Jim Kelly, Area
Engineer, following a dispute between Plaintiff and his direct supervisor, Jordan.” Shortly
thereafter, Kelly met with Plaintiff and Jordan on January 17, 2003 to address the dispute. Kelly
prepared written summaries of Plaintiff's and Jordan’s statements,’ The dispute between Plaintiff
and Jordan concerned Jordan’s request that Plaintiff provide him with one of Defendant’s log books.
Jordan allegedly informed Plaintiff that if Plaintiff refused to comply with Jordan’s request, Jordan
would call the police. According to Jordan, Plaintiff refused to provide Jordan with the requested

log book and said “fuck you” to Jordan. Plaintiff does not dispute saying “fuck you” to Jordan.

"Plaintiff filed a race discrimination charge with the Equal Employment Opportunity
Commission against Motorola. After settling with Motorola, Plaintiff executed a withdrawal of
his EEOC charge.

Jordan did not work for Defendant prior to the date that Plaintiff complained about
Nelson to Brunswick,

'‘Splaintiff has admitted that the statement he provided to Kelly is true and accurate.

8


_ Minus Qsder Form (0697

an United States District Court, Northern District of Illinois
Name asl Jndge George W. Lindberg Sitting Judge if Other ]
fagistrate Judge than Assigned Judge
[ CASE NUMBER 03 C 3905 DATE 4/6/2004
CASE Darryl W. Kinney vs. Hamilton Partners
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) o Answer brief to motion due__. Reply to answer brief due.

(4) oO Ruling/Hearing on setfor____at

(5) QO Status hearing[held/continued to] (set for/re-set for]on___—s set ffor__— at

(6) O Pretrial conference[held/continued to] [set for/re-set for]on___—sset for at__—
(7) a Trial[set for/re-set for}on at

(8) oO (Bench/Jury trial] [Hearing] held/continued to___at.

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

COFRCP4(m) ClLocal Rule 41.1 CUFRCP41(a(1) ( FRCP41(a)(2).

cao) «of [Other docket entry] _Defendant’s motion for summary judgment (38) is granted. Plaintiff's State
Law breach of severance agreement claim is dismissed without prejudice. Enter memorandum and order.
Case Terminated.

a1) [For further details see memorandum and order which is attached to the minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

IS

Copy to judge/magistrate judge.

SPR & ? 2004
dave mailed notice
courtroom

SLB deputy’s
initials

y., Date/time received in -_
central Clerk’s Office mailing deputy initials



14, 2003. In doing so, Plaintiff understood that the EEOC would withdraw his charge of
discrimination. In fact, Plaintiff notified Defendant’s counsel on March 4, 2003 that his EEOC
charge against Defendant had been withdrawn at Plaintiff's request.

Although Defendant expressly agreed that it would not contest any unemployment
claim filed by Plaintiff on or after April 1, 2003, Plaintiff filed an unemployment claim in February
2003. Notwithstanding the terms of the severance agreement, Plaintiff also refiled a substantially
similar charge of discrimination and retaliation against Defendant with the EEOC on July 8, 2003.
Plaintiff claims that he refiled his EEOC charge because he believes Defendant violated the law by
“forcing [him] to sign something by using unemployment as a pawn.””!”

Analysis

Prior to examining the factual and legal bases for Plaintiff's Title VII claims, the
Court must first determine whether those claims were waived by Plaintiff when he signed the
February 6 severance agreement. Defendant argues that by signing the February 6 severance
agreement, Plaintiff knowingly and voluntarily released and waived the Title VII claims that he is
presently asserting against Defendant. This Court agrees.

I. Title VIE — Race Discrimination and Retaliation

It is well-established that “a plaintiff may waive a claim under Title VII. . . as part

Plaintiff now denies having read the parties’ February 6 severance agreement, and
claims that he instead “went by the words that [Staback] said” and signed the document so that
he could be released to file his unemployment claim which was the “only concern that [Plaintiff]
had... .” Nevertheless, Plaintiff has not returned or reimbursed Defendant the $12,500.04
severance payment provided to Plaintiff on February 14, 2003.

li


suggested that Plaintiff accept a “severance arrangement” from Defendant. Staback initially offered
Plaintiff thirty days of severance pay which Plaintiff rejected as insufficient. Over the course of the
parties’ February 5 and February 6 meetings, Defendant increased its settlement offer from thirty
days of severance pay to three months of severance pay, or $12,500.04. In fact, Plaintiff originally
agreed to accept two months of severance pay to avoid Defendant challenging Plaintiff's
unemployment claim, but negotiated an additional month after consulting with a lawyer.'> Defendant
also agreed to accommodate Plaintiff's request that he be given a lamp sum cash payment instead
of being paid in increments over the three-month severance period.

On February 6, 2003, both Plaintiff and Staback signed the parties’ severance
agreement. The two-page agreement provided that Plaintiff would receive three months ofhis salary
in one lump sum, less applicable deductions, and voluntarily withdraw his EEOC charge. It also
provided that Plaintiff would have twenty-one days to decide whether to sign the agreement and an
additional seven days to revoke the agreement. The severance agreement further advised Plaintiff
to consult a lawyer prior to signing the same. Staback offered Plaintiff a copy of the severance
agreement, but Plaintiff declined to take a copy.

Plaintiff returned to Defendant’s offices on February 14, 2003 (after the seven-day
revocation period had expired) to collect his severance check." Plaintiff received his severance
check on that date and endorsed the same. Honoring his contractual obligation to withdraw his

EEOC charge against Defendant, Plaintiff also executed an EEOC Withdrawal Form on February

‘SPlaintiff contacted a lawyer, Ross Peters, on February 5, 2003 to obtain information and
advice about his rights because he believed that he was wrongfully discharged. Plaintiff and
Peters also discussed the issue of severance pay.

‘Plaintiff also spoke to Peters on February 14, 2003.

10


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.
IL. 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, Uinois. Initially, Plaintiffreported to Lead Engineer Jerry McGuire.'° 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

MicGuire reported to Jim Kelly, Area Engineer. Kelly reported to Defendant’s North
Region Head Engineer, Ray Facteau. Facteau reported to Defendant’s Senior Asset Manager,
Rick Staback.


summary judgment motion on or before February 27, 2004. See Kinney v. Hamilton Partners, No.
03-3905 (N.D. Ill. Feb. 5, 2004) (order establishing briefing schedule for Defendant’s summary
judgment motion). This included Plaintiff's response to Defendant’s Local Rule 56.1(a)(3)
Statement of Material Facts to Which There is No Genuine Issue.’ See N.D. Hl. 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 Plaintiff's tardiness in perspective,
Defendant timely filed its reply brief five days before Plaintiff filed his response to Defendant’s
statement of material facts.°

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

*Plaintiff was well aware of his obligations under Northern District of Illinois Local Rule
56.1. See, e.g., Kinney v. Hamilton Partners, No. 03-3905 (N.D. Ill. Jan. 16, 2004) (order
striking Plaintiffs summary judgment motions and advising Plaintiff of requirements of N.D. Ill.
L.R. 56.1); (Def.’s Notice to Pro Se Litigant Opposing Mot. for Summ. J.).

“Plaintiff has never offered any excuse or justification for his failure to comply with the
Court’s February 5 Order. ,


place after Plaintiff received Defendant’s initial settlement offer from Staback. Plaintiff also spoke
with Peters on February 14, 2003 to inform Peters that he had negotiated and signed a severance
agreement with Defendant, received his severance pay, and would no longer need Peters’s services.
These facts establish that Plaintiff had access to and consulted with an attorney throughout the
negotiation and signing of the severance agreement (in addition to the revocation period following
the signing of the same). Accordingly, this Court will presume that Plaintiff knowingly and
voluntarily released and waived his Title VII claims. In light of the fact that Plaintiff has failed to
present any admissible evidence to overcome this presumption, the Court is justified in concluding
that Plaintiffs release and waiver are valid and enforceable.

B. Education and Business Experience

Plaintiffreceived the equivalent ofa high school education, as evidenced by his GED.

He also has over fifteen years of experience working in the heating, air conditioning, and
refrigeration fields and holds a refrigeration certificate from a refrigeration/engineering society.
With no admissible evidence to the contrary, the Court finds that Plaintiffs educational and
professional experience favors Defendant."° Indeed, at least one court in this District has stated that
“[a] high school education is usually deemed sufficient to weigh the . . . factor in the defendant’s
favor.” Nobles, No. 02-2446, 2003 WL 22326584, at *3 (“Work experience . . . bolster[{s] this
determination.”) (citations omitted).

(on Input in Negotiating Terms of Severance Agreement

The Nobles court also found that “[t]he second factor... can indicate knowledge and

The fact that Plaintiff filed an EEOC charge against Motorola also favors Defendant
because it establishes that Plaintiff had experience with filing an EEOC discrimination charge
against an employer and settling/withdrawing the same.

14


any and all claims or actions, at law or in equity, judicial or
administrative, debts, sums of money, accounts, judgments,
or demands which have arisen or may arise related to your
employment with or termination from Hamilton on or before
the date of this agreement, including but not limited to any
tort or contract claims, or claims under . . . Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Civil Rights Act of 1866, . . . Illinois Human Rights Act,
retaliatory discharge and any other local, state or federal
statute, ordinance, regulation or common law. You
acknowledge and understand that you have been fully
compensated for all the time in which you performed services
with us in accordance with all state, federal and local wage
and hour laws.

2. You voluntarily agree to withdraw your EEOC Charge No.
210 A 301645, corresponding IDHR Charge, or any other
claim or charge against Hamilton or any of its related entities
or partners, You further agree to send the Voluntary
Withdrawal Request Form, attached as Exhibit A, to the
EEOC in the attached envelope today, February 6.

These provisions explain in great detail that by signing the agreement and accepting the severance
benefits Plaintiff was releasing, waiving, and/or foregoing any and all claims, including any Title VII
claims, he had asserted or may possibly assert against Defendant. That Plaintiff understood these
provisions is evidenced by, inter alia, (1) Plaintiff's subsequent withdrawal of his EEOC charge
against Defendant and (2) the fact that Plaintiff informed his attorney on February 14, 2003 that he
was “going to stop the situation . . . because [he] signed the severance agreement.” Accordingly, this
factor also favors Defendant.

E. Amount of Time Plaintiff had for Deliberation Prior to Signing the Severance
Agreement

Plaintiff was given twenty-one days to consider the terms of the severance agreement
prior to signing it and another seven days after signing the agreement to revoke the same. Moreover,

the agreement expressly provided that the seven-day revocation period could not be waived and that

16


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

Statement of Facts

On February 5, 2004, the Court ordered Plaintiff to file his response to Defendant’s

*See also Greer v. Bd. of Educ. of the City of Chicago, Ill, 267 F.3d 723, 727 (7 Cir.
2001) (‘The essence of liberal construction is to give a pro se plaintiff a break when, although
he stumbles on a technicality, his pleading is otherwise understandable.””) (citation omitted);
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 (ND. Ili.
2002) (“the Court reads a pro se plaintiff’s pleadings liberally”) (citation omitted).

*See 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).

4See 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).


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DARRYL W. KINNEY, )
)
Plaintiff, ) Case No. 03 C 3905
)
v. ) George W. Lindberg
) Senior United States District Judge
HAMILTON PARTNERS, )
)
Defendant. )
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! ~(1)
race discrimination in violation of Title VU, (2) retaliation in violation of Title VI, 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 February 13, 2004, Defendant filed its motion for sumnbary judgment.

Defendant’s motion is hereby granted. 1 704

is

aR 4
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).


of a voluntary settlement, provided that her consent to the release was voluntary and knowing.”"*

Wagner v. Nutrasweet Co., 95 F.3d 527, 532 (7" Cir. 1996) (citation omitted); see also Riley v. Am.
Family Mut. Ins. Co., 881 F.2d 368, 371 (7" Cir. 1989) (same). When determining whether a
plaintiff's release of her Title VII claims was “knowing and voluntary,” the Court “must examine
the ‘totality of circumstances’ surrounding the execution of the release.” Pierce v. Atchison, Topeka
& Santa Fe Ry. Co., 65 F.3d 562, 571 (7" Cir. 1995) (“Pierce I”). In doing so, the Court looks

to a number of factors . . . including, but not limited to: (1) the

employee’s education and business experience; (2) the employee’s

input in negotiating the terms of the settlement; (3) the clarity of the

agreement; (4) the amount of time the employee had for deliberation

before signing the release; (5) whether the employee actually read the

release and considered its terms before signing it; (6) whether the

employee was represented by counsel or consulted with an attorney;

(7) whether the consideration given in exchange for the waiver

exceeded the benefits to which the employee was already entitled by

contract or law; and (8) whether the employee’s release was induced

by improper conduct on the defendant’s part.

Pierce I, 65 F.3d at 571 (citations omitted); see also Nobles v. Discover Fin. Servs., Inc., No. 02-
2446, 2003 WL 22326584, at *3 (N.D. Ill. Oct. 9, 2003) (same).

Initially, Plaintiff “must come forward with specific evidence sufficient to raise a
question as to the validity of the release under the totality approach. ...’” Pierce v. Atchison Topeka
& Santa Fe Ry. Co., 110 F.3d 431, 438 (7" Cir. 1997) (“Pierce I’). Indeed, “[a] bald assertion of
misrepresentation by the employer, standing alone, is legally insufficient.” Jd. (citation omitted).

As discussed above, Plaintiff has failed to offer any admissible evidence that suggests Plaintiff did

not knowingly and voluntarily release and waive his Title VII claims. This alone would justify a

'SUnderlying this rule is an “important federal policy: the encouragement of voluntary
settlement of claims.” Pierce v. Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d $62, 572 (7" Cir.
1995) (“Pierce I’).

12


voluntariness when employees actively negotiate portions of the severance package.” Jd. (citation
omitted). Here, Plaintiff actively negotiated the severance agreement with Defendant. In fact,
Plaintiff participated in two days of meetings during which he negotiated (1) an additional two
months of severance pay, (2) the distribution of his severance pay in one lump sum, and (3) an
agreement that Defendant would not contest any unemployment claim filed by Plaintiff on or after
April 1, 2003.” These examples of active negotiation with respect to the severance agreement (and
accompanying release and waiver of claims) strongly favor Defendant.
D. Clarity of Severance Agreement

The February 6 Severance Agreement consists of only two pages and explicitly
provides:

If you sign this letter which releases any and all claims that you have

or may have against Hamilton, . . . we offer the following severance

package:

1. Three (3) months salary in one lump sum, less applicable

deductions, payable to you on the eighth day after you sign
this Agreement.

2. One vacation day. ...
4. We will provide neutral references for you.
5. We will not contest your unemployment claim filed on April

1, 2003 after the three months severance payment has elapsed.

in exchange for the consideration provided above, you agree to the
following:

1. On your own behalf and on behalf of your heirs, executors,
successors and assigns, you release and forever discharge
Hamilton and ali its affiliated entities and any and all of its
officers, partners, directors, employees, shareholders,
affiliated companies, attorneys, successors, and assigns, from

Plaintiff's active participation in these meetings also belies his bald assertion that he
was “under medication causing unclear thought” at the time he signed the severance agreement.

15