The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge
Plaintiff, Michael Herring ("Herring"), filed suit against defendants, the United States Department of Homeland Security ("DHS"), Thomas J. Ridge, Secretary of DHS, the United States Department of Transportation ("DOT"), Norman J. Mineta, Secretary of DOT, the Transportation Security Administration ("TSA" or "agency") and David M. Stone, Secretary of TSA (collectively, "defendants") alleging race discrimination in violation of 42 U.S.C. § 1981 (Count I), a hostile work environment based on race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") (Count II), disparate treatment based on race in violation of Title VII (Count III), disparate treatment based on disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 42101 et seq. (Count IV), and retaliation based on protected activities in violation of Title VII (Count V).*fn1 This court granted defendants' motion for summary judgment on Counts I, III, IV, and V, but denied the motion on Count II, finding a genuine issue of material fact as to whether DHS subjected Herring to a hostile work environment because of his race. See Docket No. 66. On January 13, 2009, the court granted DHS leave to file a renewed motion for summary judgment on Count II, which is the motion currently before the court. For the following reasons, defendants' motion for summary judgment [#78] on Count II is granted.
On December 19, 2002, TSA offered Herring a conditional appointment as a transportation security screener. Two days later Herring accepted the appointment, agreeing, among other things, to a one-year probationary period, and acknowledging that he could be disciplined for using abusive language against TSA staff. Herring completed his TSA baggage screening basic training on December 30, 2002. Shortly thereafter, on January 21, 2003, Herring injured himself while lifting baggage. Herring was absent from work on paid disability leave from March 13, 2003 through April 16, 2003. His doctor released him to return to work on April 17, 2003, but Herring took sick leave on April 18 and 19. After returning from disability leave, Herring's attendance deteriorated rapidly. He accumulated eleven unauthorized absences during the month of May and never returned to work after May 29, 2003.
On May 22, 2003, Herring heard co-worker Nataliha Metzler mumble "nigger" as she walked by his work station. Def.'s L.R. 56.1 SoF ¶ 18. The next day, Metzler bumped into Herring and failed to apologize. Instead, she called Herring "bitch ass" in front of two TSA employees. Id. ¶ 19. Finally, on May 29, 2003, Metzler told Herring that if she lost her job, she would get back at him. Id. ¶ 20. On June 2, 2003, Herring complained to TSA officials about the May 22, 23, and 29 events with Metzler. Two days later, human resources official Sharon Campbell issued Metzler a warning letter, reprimanding her for the May 22, 23, and 29 incidents and warning her that "any future incidents of this nature may result in disciplinary action being taken, up to and including removal, from the federal service." Id. ¶ 21.
After investigating Herring's harassment claims, human resources officials informed Herring that they had disciplined the employees involved. Herring rudely refused TSA's requests to return to work, calling Campbell a "bitch." Id. ¶ 25. TSA offered to place Herring on a new shift away from problem employees, but Herring persisted in his refusal to return to work, claiming he was "on strike." Id. In September 2003, TSA gave Herring one last chance to return to work, reiterating that all the employees he accused of harassment had been disciplined. Id. ¶ 26. Herring again refused to return to work, stating that his school schedule conflicted with his work schedule at TSA. Id. ¶ 27.
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To determine whether a genuine issue of material fact exists, the court must assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Id. While the court must construe all facts in a light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), where a claim or defense is factually unsupported, it should be disposed of on summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Id. at 323. In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000).
Summary judgment rules "assist the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence." Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999). The rules also "assist the parties by imposing some discipline on the pretrial process and facilitating an early end to cases that do not require a full trial." Id. Although summary judgment rules impose a limited burden on lawyers, the judicial system as whole is better served if pre-trial organization occurs sooner in the litigation process rather than later. Id.
Northern District of Illinois Local Rule 56.1(a) requires the party seeking summary judgment to submit, among other things, a statement of material facts, which consists of short, numbered paragraphs and specific references within each paragraph to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.
L.R. 56.1(a)(3). The nonmoving party must then submit a concise response to the movant's statement of facts. Id. Material facts improperly denied by the nonmoving party are deemed admitted by the court. Id.
As a threshold matter, Herring failed to comply with Local Rule 56.1(b)(3) by neglecting to submit a response to the DHS's statement of facts, as required by Local Rule 56.1(b)(3)(A)- (C). Instead, Herring re-submitted, without revision, his response to DHS's statement of facts in support of its previous motion for summary judgment (Docket No. 45), which contained information relating not only to the claim at hand but also to ...