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Kaminski v. Napolitano

June 30, 2009

MARK S. KAMINSKI, PLAINTIFF,
v.
JANET NAPOLITANO, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SAFETY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiff Mark S. Kaminski ("Kaminski") filed against Michael Chertoff, then-Secretary of the U.S. Department of Homeland Security, a complaint alleging that he was retaliated against in violation of Title VII of the Civil Rights Act of 1964. (Janet Napolitano is automatically substituted pursuant to Federal Rule of Civil Procedure 25(d).) Before the Court is defendant's motion for summary judgment. For the reasons set forth below, the Court grants defendant's motion for summary judgment.

I. Background

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. As the Court notes on its website (and has mentioned in multiple opinions), the Court enforces Local Rule 56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party's brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed.

Pursuant to Local Rule 56.1, the Court deems a fact admitted if one party supports that fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). It is not enough at the summary judgment stage for either party to say a fact is disputed. The Court considers a fact disputed only if both parties put forth admissible evidence of his or its version of the fact.

In this case, plaintiff failed to respond to defendant's statement of undisputed facts. (The Court notes that defendant, in compliance with Local Rule 56.2, served plaintiff, who is proceeding pro se, with the required notice explaining how to respond properly to a motion for summary judgment and a statement of facts.) Accordingly, the Court deems admitted the facts in defendant's statement of facts that defendant supported with admissible evidence. Local Rule 56.1, however, does not absolve defendant of its burden of putting forth admissible evidence to support the facts in its statement of facts. The Court has carefully considered defendant's statement of facts and has deemed admitted only those facts that defendant supported with evidence (i.e., deposition testimony, documents or affidavits) admissible for summary judgment purposes. For example, portions of defendant's facts numbered 1, 3, 12, 14, 16 and 29 were not supported by the cited evidence or had no cite to admissible evidence. The Court ignores those portions that were not supported by admissible evidence.*fn1

The following facts are undisputed.

On August 1, 2002, the Transportation Safety Administration ("TSA") hired plaintiff Kaminski as a Supervisory Transportation Security Screener ("STSS"). As such, Kaminski was responsible for supervising lead screeners and screeners at O'Hare International Airport checkpoints. For the first two months, Kaminski worked on the day shift at domestic terminals. After two months, the TSA transferred Kaminski to the night shift.

Kaminski thought his transfer to the night shift was unfair. In February 2003, Kaminski contacted the TSA's office of Civil Rights to complain about his transfer to the night shift. Ultimately, he chose not to pursue a civil rights complaint, because he wanted to be a team player.

Instead, Kaminski complained to the Federal Security Director, Michael Zunk ("Zunk") about his night-shift transfer. After Kaminski complained to Zunk, the TSA transferred Kaminski back to the day shift. This time, Kaminski was assigned to Terminal 5 (the international terminal), where he reported to Rob Perry ("Perry") and Wayne Popelka.

At several points during his tenure at the TSA, Kaminski had performance problems. For example, in December 2002, an American Airlines flight attendant complained to TSA about Kaminski. The flight attendant told TSA that after she had cleared the initial security checkpoint, Kaminski approached her and the two engaged in a loud altercation over whether she should give her identification card to Kaminski. The flight attendant described Kaminski's behavior as demeaning and disrespectful. Kaminski later apologized to the TSA for any embarrassment his conduct might have caused.

On December 12, 2002, an Arab-American passenger wearing a head scarf and a long coat passed through security. Kaminski asked one of his screeners whether the passenger had been selected for secondary screening. Kaminski also stated that he would have selected her for secondary screening based on her attire. The next day, Kaminski was counseled about his poor job performance and his demeanor.

In June 2003, TSA received complaints about Kaminski from screeners. The screeners complained that Kaminski was asking Middle Eastern passengers how much money they were traveling with and instructing screeners to do the same. TSA, however, was not responsible for enforcing the $10,000 limit on the amount of money with which airline passengers are permitted to leave the country. That is the job of customs agents.

On July 7, 2003, Terminal Manager Perry met with Kaminski. Perry counseled Kaminski about reports TSA had received that said Kaminski had been profiling passengers. Perry also counseled Kaminski about his poor leadership and customer-service skills and about his inability to accept criticism. Perry reassigned Kaminski ...


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