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McKinney v. Johnson

United States District Court, N.D. Illinois, Eastern Division

February 3, 2014

PAMELA D. McKINNEY, Plaintiff,

Page 1118

For Pamela D McKinney, Plaintiff: Elliot Scott Wiczer, LEAD ATTORNEY, Brian S. Feldman, John M Sheldon, Foreman Friedman, PA, Northbrook, IL.

For Janet Napolitano, Secretary, Defendant: James Michael Kuhn, LEAD ATTORNEY, United States Attorney's Office (NDIL), Chicago, IL.


Page 1119

George M. Marovich, United States District Judge.


Plaintiff Pamela D. McKinney (" McKinney" ) filed suit against Jeh Johnson, Secretary of the United States Department of Homeland Security.[1] McKinney alleges that she was discriminated against on the basis of her age, sex and race (in violation of the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964) and that she was retaliated against

Page 1120

for complaining about discrimination. Defendant has filed a motion for summary judgment. For the reasons set forth below, the Court grants in part and denies in part 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. 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. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). This does not, however, absolve the party putting forth the fact of its duty to support the fact with admissible evidence. See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012). Asserted " facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court.

The following facts are undisputed unless otherwise noted.

Plaintiff McKinney worked for FEMA from June 2006 until March 2007. During that time, she held two different positions. FEMA first hired McKinney in June 2006 as a Disaster Assistance Employee. A Disaster Assistance Employee is one who is on-call to work during disasters. Not long after she was hired, McKinney was called upon to work on a disaster in Ohio. McKinney worked out of a Joint Field Office in Ohio, which was headed by Stacy Grathen (" Grathen" ), the acting Federal Coordinating Officer. Grathen normally worked in Chicago but, like McKinney, was assigned to work out of the Joint Field Office in Ohio, because FEMA was handling some kind of disaster.

While McKinney and Grathen were working a disaster in Ohio, Grathen was told (by whom is not clear) that McKinney had caused a disturbance at the hotel. (The hotel has no record of any disturbance, and it is not clear from the record whether any disturbance actually happened.) Grathen, in turn, told her direct supervisor, Bill Powers. McKinney was upset that Grathen had told Grathen's supervisor, so McKinney complained to the Office of Equal Rights that she had been discriminated against on the basis of her race and sex. McKinney believed that it had been one Bernie Fernandez (more on him later) who had reported the alleged hotel disturbance to Grathen.

It seems that at least some of McKinney's time at the Joint Field Office in Ohio was spent in training. On August 25, 2006, McKinney received a performance review of " satisfactory" for three weeks of training at the Joint Field Office in Ohio.

In the meantime, McKinney had applied for another position within FEMA. In May 2006, FEMA had posted three CORE positions in disaster recovery closeout, which seems to mean the process of making sure all claims have been paid and all recovery work completed. CORE positions are temporary positions that can be terminated at almost any time. The three positions FEMA advertised for were to continue for not more than two years and were listed as being available at the GS-9, GS-11 and GS-12 levels, depending on the knowledge, skills and ability of the individual

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filling the position. A position at GS-12 pays better than a position at GS-11 or GS-9.

McKinney applied for the CORE position in June 2006. When she applied, McKinney stated on her cover letter that she would accept a position at the GS-9 level. The first thing that happened with the applicants for the CORE positions is that a FEMA personnel specialist (Vicki Hartless) in Virginia reviewed the applicants' resumes to determine the GS level at which each applicant could be hired. Vicki Hartless determined that McKinney was qualified only at the GS-9 level, and, when she did ...

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