Petition for Writ of Certiorari — Nowak v. Transportation Joint Agreement (No. 07-1271)

S Court, US.

PLE DB

No. l 071271 JAN 30 2008

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

JEROME J. NOWAK - PETITIONER

V

TRANSPORTATION JOINT AGREEMENT,

SCHOOL DISTRICT 47,

SCHOOL DISTRICT 155

RESPONDENTS

\

ON PETITION FOR A WRIT OF CERTIORARI TO

U S COURT OF APPEALS, 7® CIRCUIT

P ON FOR T OF CERTIO

Jerome J Nowak

886 Aberdeen

Crystal Lake, Illinois 60014

(815) 477-4705

i

QUESTIONS PRESENTED

1. Does the First Amendment extend into the

classroom? Does the Petitioner Nowak not have

constitutional protection to ask questions?

a Did the lower courts err in granting summary

judgment to dismiss a case when the defendants business

reason is subjective and petty at best?

3. Shall a pro se plaintiff be granted counsel in a case

that becomes complex to prosecute as in the shifting burden

model of discrimination?

4. Is it in the nation’s best interest to uphold the age

and other discrimination laws in the face of an ever aging

population and an ever changing economy that displaces

individuals from traditional jobs and places them in new

situations dominated by other classes and groups?

li

LIST OF PARTIES

All the parties appear in the caption of the case on the cover

page. The petitioner is an individual and no corporate

disclosure statement is provided.

iil

TABLE OF CONTENTS

OPINIONS BELOW....... Nek Pare et coe e |

PE iain 0A asic tas Sinveccnneecevevaine 1

CONSTITUTIONAL AND. ...............0eeeeees l

STATUTORY PROVISIONS

STATEMENT OF THE CASE..................+. 2

REASONS FOR GRANTING...........2 2.020000 a

THE WRIT

IT iia vins ceismikevrinctkassasinsenten 9

APPENDICLIES

US COURT OF APPEALS ORDER.......... App.1

US DISTRICT COURT ORDER............. App. 6

CASE SOURCE DOCUMENTS............. App. 10

iv

TABLE OF AUTORITIES

CASES

McDonnell Dougias v GreeN................

411 US 792 (1973)

Reeves v Sanderson Plumbing .............. 5

Products, Inc. 530 US 133 (2000)

Carey v Mt Desert Island Hospital.

No. 97-1661 (1* Cir, 1998)

STATUTES

ADEA, 29 U.S.C. 621 et seg. .......

Title VII, Civil Rights Act Of 1964,

4% U.S.C. 2000e et seq.

PR NIE Seba sdnchabsnsesecccssceee

120 TLCS 3/26-1 (11) ................

eer ereses

sviieiedi 2

eeerereaerse

i

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment below.

OPINIONS BELOW

The opinion of the United States Court of Appeals appears

at Appendix app |. of this petition and is not known to be

published.

JURISDICTION

The United States Court of Appeals decided this case on

November 2, 2007. No petition for rehearing was timely

filed in this case. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. First Amendment to the United States Constitution,

Freedom of Speech.

2

a Age Discrimination in Employment Act

29U.S.C. 621 ~-634

: 3S Title VII of the Civil Rights Act of 1964

42 U.S.C. 2000e — 2000e-17

STATEMENT OF THE CASE

The Plaintiff, Mr. Nowak age 45, was an

experienced school bus driver when he was hired by the

Defendant, TJA. Nowak attended only three hours or so of

classroom training in July 2002. The Defendants entire .

training and office staff at the time was female. Brenda

Kroll, one of the Defendant’s trainers, became

unreasonably angry with Nowak. She accused him of a

laundry list of driving offenses even though he had not yet

driven for TJA. These alleged offenses included refusing

and failing to remove his hands from the steering wheel

while driving, and refusing and failing to change all tires on

the bus even if only one required replacement. She went so

far as to state Nowak was ™too old to be retrained”. The

next day the Kathy Smith the route coordinator fired

Nowak. The other trainees a women and younger man

were allowed to finish training which lasted a minimum of

2 weeks.

The Plaintiff then filed a complaint with the I}linois

Department of Human Rights (IDHR), Charge number

2003CA2552. A fact finding conference was help by the

Department in November of 2003. In attendance were

Erdman, Smith, Prestley, Kroll, the Plaintiff, and the

Department’s investigator. The Defendants claimed that

Nowak failed training. This is a change from the

explanation that Smith and Erdmann offered in 2002. The

3

Defendants have never produced the results of any

standardized written or driving test that would indicate a

score that would prohibit him from driving. In fact no

standardized tests were administered and furthermore the

Plaintiff already processed a valid commercial drivers

license with proper endorsements.

Additionally the Defendants’ trainer, Kroll, accused

the Plaintiff Mr. Nowak of intentionally using bus heaters

to punish children. Children were not present during

training and the Defendants have not supplied the names of

any children who

were abused by the use of bus heaters. It is a fact that the

Defendants, as school employees, are mandated reporters

of child abuse. (325 ILCS 5/4) It is a criminal offense of

disorderly conduct to make a false report of child abuse to

an agency. ( 720 ILCS 5/26-1 (11) )

The Illinois Department of Human Rights dismissed

the case for lack of substantial evidence in order to

proceed. The Plaintiff requested the EEOC review the

case. The EEOC in short order agreed with IDHR and

issued a right to sue letter. The Plaintiff also filed an

appeal, pro se, from the IDHR in the Illinois Court of

Appeals. This Court upheld the IDHR order to dismiss.

The Plaintiff then filed a case, pro se, with U. S.

District Court, Hlinois Northern District, Western Division,

3:05 C 50161. That case proceeded with some discovery.

The Defendants filed a motion for summary judgment. The

court ruled in favor of the Defendants. The Plaintiff then

filed an appeal, pro se, ( No. 07-1605 ) with the U. S. Court

of Appeals. The US Court of Appeals 7” decided to affirm

the district court on November 2, 2007. A mandate was

issued on November 26, 2007.

REASONS FOR GRANTING THE PETITION

#

The first Amendment surely provides the Petitioner

Mr. Nowak the right to question statements made by the

trainer Brenda Kroll. What better place to ask a question

than in the classroom as opposed to behind the wheel on

the highway. Surely the Court would agree the only foolish

question is the one not asked. Any questions Nowak may

have asked were in earnest to command accuracy and

clarity of the subject. The other trainees were allowed to

ask questions without being punished or fired. Nowak’s

only offense is that he dared question Brenda Kroll.

ra

The lower courts erred in granting summary

judgment on conjecture. . The principal deficiency that the

Court of Appeals finds is that Nowak’s “style .... signaled

the possibility that he would take it upon himself to

disregard Illinois or TJA safety mandates ....” (app4 US

Appeal Order). According to this Nowak was fired for

what he may do sometime in the future, maybe. Every

driver who turns the ignition key is a potential accident.

The other trainees were not fired or disciplined for anything

that they said.

Future acts not yet committed are not facts. As to

whether Nowak was rude or disruptive is a matter of

subjective opinion and also not a fact. Furthermore

5

rudeness and safety in any case do not have a direct

connection. The lower courts analysis is flawed.

Also the lower courts completely ignore any

mention of Kroll accusing Nowak of using bus heaters to

punish school children. This is a baseless account on the

part of Kroll. It demonstrates that she is willing to say

anything in order to have Nowak fired and keep him fired,

even lie. Much of what she has sworn to is misquoted and

outright lies. There is no documentation in the record from

the day in question to support any of her stories. Even the

other women, Smith and Prestley, who have sworn

statements against Nowak do not agree or support Kroll’s

stories.

Nowak cannot imagine what he could possibly have

done to Kroll in such a short time that she would hate his so

much. These stories by Kroll and Smith and adopted by

TJA are no more than pretext. Reeves v Sanderson

Plumbing Products Inc. 50 US 133 (2000) states “ a

Plaintiff's prima facie case, combined with sufficient

evidence to find that the employer’s justification is false,

may permit the trier of fact to conclude that the employer

unlawfully discriminated.” Gordon v United Airlines, Inc.

246 F.3d 878,893(7" cir, 2001) further supports Nowak in

this assertion. Here the Circuit reversed summary

judgment to the employer noting that “our faithful

adherence to the Supreme Court’s holding in Reeves will

tolerate no other conclusion.

TJA really does not have a legitimate business

necessity to have fired Nowak. McDonnell Douglas v

Green 411 US 792 (1973). The burden of proof never

shifts back to the Plaintiff in this case. Even if he behaved

in the manner that TJA would have the courts believe they

6

still have not shown in the record that they have used any

of these issues to fire or even discipline any similarly

situated women or younger men. TJA has created a special

set of undocumented requirements that they have used

against a 45 year old man only. Ladies and gentleman this

is textbook discrimination. é:

C vM s ital No. 97-1 .

Cir. 1998) supports Nowak’s Title VII claim. Here women

were given progressive discipline over time. A male vice

president was fired by a female C E O. The jury viewed

the defendant’s assertion of business necessity in this case

as only a suggestion.

3.

The Petitioner, Mr. Nowak finds it very

dehumanizing that he would have to process this case all

the way to the U S Supreme Court without representation.

Every attorney that he approached were of the consensus

that the 7 Circuit does not enforce the anti discrimination

laws. This is such an impossible task for a pro se litigant to

succeed in doing. Indeed Nowak has found first hand that

the lower courts accept whatever the Defendants assert as

automatic fact and anything he presents as immaterial,

irrelevant or simply ignored.

Mr. Nowak motioned for appointment of counsel

and was turned down because his spouse has income. The

Defendant’s use tax money, to have a four name law firm

make a simple matter into a federal case. Basically this

case is a simply parking ticket. The Defendant’s should be

adult enough to admit their deficiency and pay the fine.

They made no effort to collect any facts outside of what

their female trainers had told them. They have not shown

7

that Nowak has violated any law rule or regulation with

respect to school bus diving. Had the court appointed

counsel Nowak would have been better able to advance his

position in the proper form.

Perhaps of most interest to the Court and the

country is the age of our population. There are 80 million

baby boomers over the age of forty. Not all will require

protection against age discrimination, but we need to know

that the courts will enforce the ADEA. The economy

is a dime balancing on its edge. It does not take mush to tip

it into recession. The housing and credit markets are near

crisis. A vast majority of people over 40 depend on their

paychecks to participate in American life.

The courts cannot continue to funnel decisions in

favor of the defendants for petty or obviously questionable

reasons. Older Americans need to know the courts will be

there for them. These laws are to govern the employers and

protect the individuals. 45 year old plaintiffs are mature

enough to know when there rights have been violated. The

courts discretion needs to err on the side of enforcing the

protections, not allowing the employer a get out of jail free

card. If employers knew the statutes had teeth there

would be less need to bring cases to court.

In summary the statutes provide for equal

opportunity in employment and training between the age

and gender groups. There is enough difference between the

facts of the Defendant’s TJA and the Plaintiff Nowak to

require a jury to decide who is telling the truth. There is

sufficient case law to require this case move to trial. It is in

the nation’s best interests to enforce these laws and keep

people working. What is missing is the courts have the will

to move this to trial.

TJA and employers in general are subject to little

accountability. They become abusive in ever increasing

degrees, much like an addict. The courts have now taken

on the role of enabler. They allow the addict to continue

unchecked. The Defendants need to admit their abuse and

reconcile their trespasses in order for the healing to begin.

The courts need to be party to the healing not the addiction.

In this case the simply fact is the Defendant’s

Brenda Kroll had gotten her shorts in a bunch about

something. We can only guess. / may be she hates here

father. It may be she is jealous that Ronald Erdman is her

boss. She may be a man hater in general. She may have a

brain tumor. She enlisted the help of her bus diving sisters

to dupe Ron Erdmann into taking the credit for firing

Nowak This apparently was not a difficult task and only

illustrates the severe female gender bias this employer has.

The Plaintiff — Petitioner, Nowak, and the honest

hard working people of this nation do not need the United

States Supreme Court to affirm summary judgment in favor

of an abusive and self serving employer. The lower courts

have already done that. What Nowak seeks here is to have

the case go before a jury. They will know what to do.

CONCLUSION

WHEREFORE: for the above stated reasons and

any the Court may deem appropriate the Petitioner prays

that the Petition for Writ of Certiorari should be granted.

Respectfully submitted,

App. 1

App. |

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1 United

States Court of Appeals

For the Seventh Circuit, Chicago, Illinois 60604

Before

Hon. Richard A Posner

Hon. Diane P. Wood

Hon. Dianne S. Sykes

No. 07 - 1605

Jerome J. Nowak Appeal from the Unite States

Plaintiff-Appellant District Court for the

Northem

Vv. District of Illinois, Westem

Transportation Joint

Agreement of Community No. 05 C 50151

Consolidated School

District No. 47 and Community _— Philip G. Reinhard

District No. 155

Defendant- Appellee

ORDER

* After examination of the briefs and the record, we have conchuded that oral

argument is unnecessary.

Transportation Joint Association (“TJA”), a

App. 2

cooperative formed by two northern Illinois school districts

to bus their students, hired Jerome Nowak as a driver on a

probationary basis. He reported for training at the end of

July 2002 but was terminated on his second day. In this

action under the Age Discrimination in Employment Act,

29 U.S.C. §§ 621-634, and Title VII of the Civil Rights

Acts of 1964, 42 U.S.C. §§ 2000e to 2000¢.17, Nowak

claims that TJA fired him on account of his age and gender.

The district court granted summary judgment for TJA,

and we affirm.

Nowak was 45 when he accepted a job with TJA.

At the time he had three years’ experience driving a bus for

a different school district, and twice before he had

declined offers of employment from the defendant.

Nowak started his training with two other probationary

drivers, 52 year old Sheila Cudworth and 31 year old

Daniel Lahl. At summary judgment, TJA submitted

evidence that several times during the first day of training

Nowak questioned the correctness of instructions given

the trainees by TJA employees Brenda Kroll and Penny

Prestley. The other trainees did not challenge the

instructors’ directions. Kroli and Prestley ended the

session by privately admonishing Nowak for being

disruptive, and afterward they reported to their supervisor,

Kathy Smith, that Nowak had been belligerent and

argumentative, and that his comments during the training

session left them concerned that he would not follow

Illinois law or TJA's safety policies. According to the

defendant's evidence, Smith immediately passed on these

concerns to Dr. Ronald Erdman, the executive director of

TJA, who spoke with Kroll and Prestley and then decided

that Nowak should be fired. Smith communicated that

decision to Nowak the next day.

App. 3

TJA notified Nowak when it moved for summary

judgment that his response must comply with the district.

court's Local Rule 56.1. That rule requires, among other

things, that the opponent of a motion for summary

judgment submit a supporting memorandum of law. See

N.D. 111. Loc. R. 56.1(bX2). Nowak did not provide the

court with a memorandum setting out his legal arguments.

And in his response to TJA's statement of uncontested

facts, he did not deny that he contradicted his trainers or

that they reported to Smith and Erdman that he was

combative during the training session.

In granting summary judgment for TJA, the district

court observed that the absence of a memorandum of law

from Nowak had hampered the court's ability to understand

his response to TJA's statement of uncontested facts. The

omission of the required memorandum, the court

explained, was reason enough to grant TJA's motion. The

court, added, however, that even aside from the rule

violation Nowak lacked sufficient evidence to warrant a

trial on his claims of age and gender discrimination.

On appeal Nowak says nothing about Local Rule 56.1, but

the district court's application of that rule, which we review

only for abuse of discretion. Greer v. Bd. of Educ., 267

F.3d 723, 727 (7th Cir. 2001), is reason enough to sustain

the judgment. A district court may insist upon strict

adherence to its local rules even from a pro se litigant,

McK2il v. United States, 508 U.S. 106, 113 (1993);

Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809,

817 (7th Cir. 2004), and if a party opposing summary

judgment fails to comply with its obligations under Local

Rule 56.1, the court may in its discretion deem the motion

unopposed, see Greer, 267 F.3d at 727. Local Rule

56.1(b\(2) requires the opponent of a motion for summary

App. 4

judgment to file a supporting memorandum of law.

Nowak did not comply, and on that basis alone the

district court was within its authority to grant summary

judgment to TJA.

In any event, the district court analyzed the

parties’ evidence and concluded that TJA was entitled to

summary judgment. We agree. Nowak argues here that

he was proceeding under the indirect method of proof and

that his evidence established a prima facie case of age and

gender discrimination. See Ptasznik v. St. Joseph Hosp.,

464 F.3d 691, 695 (7th Cir. 2006); Gore v. Ind. Univ., 416

F.3d 590, 592 (7th Cir. 2005). But there is no evidence to

dispute that TJA fired Nowak because the employees

tasked with training him concluded that his

confrontational style was rude and disruptive, and

signalea the possibility that he would take it upon

himself to disregard Illinois or TJA safety mandates that

he deemed ill-advised. Whether we view this evidence

through the lens of the prima facie case or in terms of

pretext, it is clear that Nowak was not performing up to

TJA's legitimate expectations, and that he presented

nothing to refute their contention that he was fired for

that reason and no other. See Hague v. Thompson Distrib.

Co., 436 F.3d 816, 823 (7th Cir. 2006); Coco v. Elmwood

Care Inc., 128 F.3d 1177, 1179 (7th Cir. 1997).

Nowak spends much of his brief arguing that his

criticisms of Kroll and Prestley's directives were valid,

and that TJA should have listened to him instead of firing

him. But insisting on the invalidity of the TJA's safety

curriculum simply reinforces the sincerity of TJA's stated

reason for his termination. In any event, the argument

misses the mark. The relevant inquiry is whether there is

evidence from which a finder of fact reasonably could

App. 5

conclude that the decision to end Nowak's employment

was unlawful; whether it was wise or even fair is not for

the courts to decide. See Ptasznik, 464 F.3d at 697.

UNITED STATES DISTRICT COURT, NORTHERN

DISTRICT OF ILLINOIS

Name of, Philip G. Sittin

igned ; J ‘

hae oe Reinhard | other than

Magistrate Assigned

Judge Judge

CASE 05 C 50161 DATE 2/9/20

CASE Jerome J. Nowak vs. Transportation Joint

TITLE Agreement School District 47, and School

District 155

DOCKET ENTRY TEXT:

For the reasons stated below, defendant's motion for

summary judgment is granted. This case is hereby

dismissed in its entirety with prejudice.

STATEMENT

Plaintiff, Jerome J. Nowak, pro se brings this

action against defendant, Transportation Joint

Agreement School Dist. 47 and School Dist. 155.

Plaintiff was terminated after his first day of

employment (a training course) by defendant. He claims

the firing was because of his age in violation of the Age

App. 7

Discrimination in-Employment Act, 29 U.S.C. § 621 et

seg, and sex in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seg. Federal question

jurisdiction exists for this case. 28 U.S.C. § 1331.

.Defendant moves for summary judgment.

Despite having been served with the "Notice to

Pro Se Litigant Opposing Summary Judgment" plaintiff

has not complied with LR 56.1. He has not filed a

memorandum of law supporting his opposition to

summary judgment which makes it difficult to make

sense of his LR 56.1 (b) (3) responses to defendant's

statement of facts and his statement of additional facts.

In Vv. i

267 F.3d 723, 727 (7° Cir. 2001), the court stated the

district court would have been within its discretion to

grant the defendant's motion for summary judgment

based strictly on the pro se plaintiff's failure to comply

with the local summary judgment rule. In Greer the

plaintiff provided no meaningful response to defendant's

statement of facts, filed a statement of additional facts

with no citation to any evidentiary support in the record

and filed a brief described as a “jumbled mass of

information (none of which was referenced in his Rule

56.1 statement)." Here, plaintiff has not offered legal

arguments as to why summary judgment should be

denied leaving the court to try to discern these arguments

from the statements of fact. This failure to comply with

LR 56.1 is sufficient reason to grant summary judgment

for defendant.

Even looking at the facts in the record, it is clear

plaintiff has no claim. Plaintiff has no evidence. direct or

circumstantial, of a discriminatory motive in his

termination so he cannot proceed under the direct method

for proving either age or sex discrimination. See Ptasznik

v. St. Joseph Hosp.. 464 F.3d 691, 695 (7" Cir. 2006). To

establish a prima facie case under the indirect method for

age discrimination plaintiff must show 1) he is in a

protected class, 2) he was performing his job in accord

with his employer's legitimate expectations. 3) he was

subjected to an adverse employment action, and 4)

similarly situated employees outside the protected class

were treated more favorably. Id. at 696. The test is the

same for a sex discrimination claim, except that when it

is brought by a man the first prong is different. In the

case of a man the plaintiff must show background

circumstances that demonstrate a particular employer has

reason to discriminate against men or evidence there is

something "fishy" about the facts. Gore v. Indiana

University. 416 F.3d 590, 592 (7" Cir. 2005). If the prima

facie case is met, then defendant must offer a legitimate

nondiscriminatory reason for terminating plaintiff.

Ptasznik at 696. When defendant has done so, the burden

shifts back to plaintiff to prove the stated reason was a

pretext.

Here, the facts show plaintiff was hired by

defendant to be a bus driver. Defendant required its bus

drivers to undergo training. On the first day of training,

plaintiff questioned several things about the propriety of

the course and was perceived by the trainers to be

disruptive. The court gathers from the record that

plaintiff did not think he was disruptive but was simply

asking questions about the wisdom of some of the things

being taught. Cutting to the pretext analysis, plaintiff

has offered no evidence ‘that defendants articulated

reason for dismissing him was a lie. The record clearly

shows defendants employees involved in the training

thought plaintiff was a problem. Every question plaintiff

asked may have been valid, but it is not the court's "role

App. 9

to determine the competency of or interfere in

employment decisions simply where we believe an

employer has made a poor choice. Federal courts have

authority to correct an adverse employment action only

where the employer's decision is unlawful, not merely

when the adverse action is unwise or unfair.” Id. at 697.

Plaintiff has simply failed to show any evidence that the

reason given for his termination was a pretext.

For the foregoing reasons, defendant's motion for

summary judgment is granted. This case is dismissed in

its entirety with prejudice.

Jerome Nowak

P.O. Box 1420

Crystal Lake, Illinois 60014

November 13, 2003

Illinois Department of

Human Rights

100 W. Randolph

Chicago, Illinois

Attn: Victoria Brown

RE: Fact finding conference November 13th, 2003.

Claim #2003CA2552, respondent Transportation

Joint Agreement

As of this date the complainant has not received an

answer to the charge.

The Complainant would like to set forth the

following facts at this time. He had owned an intrastate

delivery service and held a commercial type drivers license

from 1984 to 1990. In February of 1999 he applied to work

as a school bus driver at both CCSD 15 in Palatine, 111. and

TJA (districts 47 & 155) in his home town of Crystal Lake

111 The wages and benefits were better in Palatine so he

started working for them. This required once again that he

App. 11

obtain a commercial drivers license He worked at district 15

for 3 1/2 years. Several times during those years the

complainant checked to see the level of wages at TJA in

Crystal Lake The complainant even had a long interview with

Rich Hansen who showed off the soon to open addition to the

facility. Hansen did not seem to have a problem with his

answers at the interview and invited him to work for TJA

when ready to make the change.

During the summer of 2002 the complainant applied

at TJA. A informational meeting was held in July. Mr.

Hansen was out on sick leave and Kathy Smith conducted the

meeting. There were as many as 10 applicants present that

were accepted for training and employment The group

broke up and set training times with individual trainers. The

Complainant met Brenda Kroll who said she had worked at

Palatine. She said that TJA is much more supportive of their

drivers.

On July 30th 2002 the Complainant arrived at TJA

and happened to meet Kroll on her way in. Kroll said they

would start training right away. Inside there were two

trainees, a man and woman, from there appearance seemed to

be younger than 40. These two are potential witnesses.

During the training Kroll brought up several

transportation issues that are contrary to the complainant’s

prior experience. One issue was the use of recapped tires.

Mr. Nowak understands that it is prohibited to use recaps

on the front sieering axle of a bus. Recaps may be used on

the rear drive and trailer axles. Kroll stated that if one

recap was used that all the tires would need to be changed

to recaps. Nowak told Kroll that he never heard this

App. 12

explained in such a manner. Kroll left to ask a mechanic if

recaps could be mixed on the rear axle. She returned with a

puzzled look and explained that the mechanic agreed that

recaps. could be mixed, then added that “but no self

respecting mechanic would”.

The complainant does not understand this answer.

Either the use of recaps is allowed or it is not. After he was

fired by Smith Mr. Nowak called Crystal Lake Tire Inc.

who services trucks and busses. He was informed that

Crystal Lake Tire does mix recaps on the rear axles with no

problem. Nowak also contacted J. Dlisa at Elgin

Community College's commercial driving program. H*

also agreed that re-caps could be mixed.

Other topics that were covered included pre-trip

inspections. One of the trainees asked if the buses were

front wheel drive. Kroll again left to ask a mechanic. She

returned with the answer that all the buses were rear wheel

drive. This action concerned the complainant. It did not

seem right that the person who was going to instruct in the

proper inspection of the chassis and underside of the vehicle

was not familiar with it

The discussion continued until a motorcycle parked

just outside the window of the training room. Kroll stop the

training briefly and talked with another trainer (Penny?)

who was present. The other trainer wanted to know if

Kroll drove motorcycles. She answered “No. I only ride

“bitch”. This is not the level of professionalism, or better

stated lack thereof that the complainant would expect from

the trainers at his new employer.

The group later went on a demonstration ride with

App. 13

Kroll driving. Bus #180 was used. It was equipped with air

brakes and bar type air pressure gauge. She made a pre-trip

inspection. This did not include going under the bus and

moving the slack adjusters as described in the CDL study

guide. The mirror grid was not used for inspection either.

While on this trip Kroll displayed at least two disturbing

practices.

She was explaining how to check if the brakes pulled.

After moving the bus forward at about 5 to 10 miles per hour

she removed both hands from the steering wheel, placed them

over her head in a “V” and sharply applied the brakes. Mr.

Nowak would hope everybody appreciates there is no driving

situation when removing both hands is acceptable.

Later in the trip Kroll was simulating a bus stop

with children. She signaled the 8-way flashers and

stopped. She set the parking brake and then applied the

foot brake. Somebody asked why apply both? Her

answer was the most concerning yet. She explained “it is

twice as safe, like wearing two condoms”. The

complainant later consulted the CDL study guide-and Mr.

Disa at ECC. The modern air brake system is set up to

relieve any pressure from the foot pedal while the parking

brake is applied. If the spring pressure of the parking brake

was added to the air pressure of the foot brake a condition

called compounding could exist. This added pressure

could crack the brake shoes, drums and seriously damage

other parts. The study guide advises to never apply the

foot brake while the parking brake is on. In fact the Motor

Carrier Regulations require a vehicle in such condition to

fail inspection and be taken out of service.

Further on the trip Kroll stated to use utility poles to

measure the distance before your stops. The poles she

stated are exactly 50 feet apart. She did not explain what

to use in places void of utility poles.

After returning to bus yard the other trainees were

dismissed. Kroll then tumed her attention to the

complainant and became cross. She insisted that Mr.

Nowak was “trained wrong” at District 15 in Palatine.

She stated that he failed to pre-trip the air brakes

correctly, failed to set the brakes at the stops, left his

routes with children on board. Mr. Nowak tried to calm

her down. He stated that she was not present when he

was trained. That all the school bus operators are

governed by the same laws rules and standards as TJA.

From there Kroll met with Kathy Smith. In Mr.

Nowak's presence she told Smith of his driving

deficiencies, keep in mind that Mr. Nowak was not driving.

Kroll told Mr. Nowak that she needed to work with the

other trainees and to return the next afternoon. When he

did, Smith was there with a form letter stating the position

was not being offered. Smith restated the driving

complaints Kroll used the day before and added that Mr.

Nowak did not use the mirror grid. It is not clear whether

Kathy Smith has the authority to fire Mr. Nowak. That

decision may need to be made by a governing board.

The complainant, Mr. Nowak is shocked by this

outcome. In the fall of 2002 he returned to observe the TJA

bus yard and the Crystal Lake way of training. What he

found was exactly what he expected. No driver went under

App. 15

the buses to inspect the slack adjusters. No flashlights were

used in the predawn hours to inspect underneath. No

driver used the mirror grid. Only two drivers could be

heard fanning the air tanks down to check safety devices.

The drivers at TJA were no better at their jobs than Mr.

Nowak.

Soon after Smith gave out the

letter Mr. Nowak contacted Representative Jack

Franks to help find out what may be the problem at

TJA. Franks office asked TJA to respond. Ron

Erdmann called by telephone and repeated word

for word what Kroll and Smith had stated earlier.

Erdmann is not a witness and information about Mr.

Nowak's driving abilities he has is hearsay.

The complainant has been unemployed since

July 2002. He has had no success at district 300

Algonquin, 200 Woodstock, 156 Huntley. These

districts are close and the managers seem to know

each other. District 300 specifically asked why Mr.

Nowak was not working at TJA. He knows he made

no wrongful act or violated any law, rule or

regulation, nothing that would require his termination.

Mr. Nowak knows of no other driver who

was fired for the alleged offenses stated by Knoll,

Smith and Erdmann. He also does not know of any

driver who has received a traffic citation for any such

offenses.

As a comparison Brenda Kroll had worked at

Palatine and if we are to believe her own words was "

trained wrong”. Yet she has worked for TJA many

App. 16

years and has been placed in a position of

responsibility and reward. Also in the interview with

Rich Hansen it was discovered that the driver

involved with the fatal bus train collision was not

terminated. She remained in the office until she

retired. A pattern of protecting the women drivers

seems to be emerging.

Brenda Kroll did not display a high degree of

professionalism. She surely is not the final word in

transportation safety. Her allegations of Mr. Nowak's

poor driving habits are fabrication and not based on

fact. Kroll, Smith and Erdmann work together and

may be protecting each other. Mr. Nowak came to

TJA with a Valid CDL, school bus permit and three

current years school bus experience. He has a very

good driving record and is qualified to perform this

work. Whatever reason the TJA has for terminating

Mr. Nowak is not a legitimate business reason.

App. 17

MEMO

TO: Dr. Don Erdmann

FROM: Kathy Smith

RE: Jerome Nowak ~ Human Rights

Hearing:

DATE: November 17, 2003

Smith, Brenda Kroll, and Penny Prestley went to the

Center m Chicago for a hearing with Jerome

and hearing officer Victoria Brown.

Nowak was interviewed first by the

hearing officer:

Hansen as positive

Nowak reported that he thought he was in the

wrong traiming class, he possessed a CDL, but was

inchuded in a class with brand new drivers

Nowak was «unsettled by the fact that trainer

Brenda Kroll got confirmation from an outside

front wheel drive buses, and rear re-capped tires.

He later remarked that he felt she might think he

was "questioning her authority”.

question "Where are all the men"

Nowak remarked that he never had 2n opportunity

to talk to “a man”.

App. 18

loading students. He said he her about

the practice and she remarked "it's safer, like

wearing two condoms”

trouble, if not for getting Brenda for a trainer

Nowak stated that after he was dismissed he called

TJA several times looking for Director Rich

tee Mile stand, FH feat dhs ie Wetlees ad shoke

App. 19

them sit down; if the kids misbehave Mr. Hansen

would understand “Bus humor”.

e Nowak stated several times that “women” have

the majority of the bus driving jobs.

e Nowak stated that he was upset when Kathy

Smith terminated him. He stated no appropriate

reason was given

* Nisa GG Gia bee Ghd it know be was 8

probationary employee

Response from Brenda Kroll, Penny Prestiey

e Kroll stated that Nowak made several negative

remarks regarding women in training

e Kroll stated that Nowak was very disruptive in

classroom training - challenging most statements

and making inappropriate comments in front of

both trainers and the other trainers

e Kroll states that there was a comment about

riding “bitch” in the classroom- but pertaining to

a shirt worm by someone walking by the

window

e Kroll and Prestley stated that Nowak did say

that he would not set the parking brake or fan

down the brakes as prescribed by Illinois State

Law.

e Kroll stated that she did have a conference with

Nowak during a break asking him to refrain from the

remarks and interruptions he was making during the

classroom portion of his training.

e Kroll denied the “condom” remark

e Prestley confirmed Kroll's allegations of

Nowith disruptive behavior during classroom

training

Response from Kathy Smith

e Smith confirmed that the action Kroll took “letting go

of the wheel, and depressing the service break” was

App. 20

correct. Not only is it part of the training curriculum,

but also on the CDL driving test

Smith responded to the statement Nowak made about

Pat Catencamp (the driver of the bus that was hit by a

train in Fox River Grove had not been dismissed

because she was found to be not at fault by the NTSB.

Ms. Catencamp did not at any time have any charges

placed awainst her. Nowak also made the statement

that Brenda Kroll herself had not been discharged and

she had begun her career as a school bus driver at

Palatine, the same as Nowak. No statement was made.

Smith stated that Brenda Kroll did come to her for

confirmation of buses being front wheel drive.

Smith confirmed that both trainers (Brenda Kroll &

Penny Prestley) did come to her with huge concerns

about Nowak.

Smith stated that she did ask Nowak two questions

after his first training session.

1. Will you fan down the brakes to do a State of

Illinois Mandatory brake check each day. Answer —

NO. 2. Will you set the parking brake at each stop

when loading and unloading students. Answer - No.

Smith stated that she did dismiss Nowak the

following day. Smith stated she gave Nowak a letter

confirming this and reasons why.

Smith stated she called Dr. Ron Erdmann at home to

discuss Nowak

Smith confirmed that Nowak did call TJA for several

days after his dismissal, looking for a male supervisor

Smith stated that on the worksheet given to a

prospective employee it states that there is a

probationary period of 90 days. Smith stated

she was the one that hired Nowak, and did

provide the worksheet.

Response for Dr. Ron Erdmann:

Erdmann provided Victoria Brown with a copy

of the TLCL contract and a copy of the TJA

handbook