Bellino, Joseph M. v. Peters, Mary E. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2068
JOSEPH M. BELLINO,
Plaintiff-Appellant,
v.
MARY E. PETERS, Secretary,
United States Department
of Transportation,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 7686—Arlander Keys, Magistrate Judge.
____________
ARGUED FEBRUARY 15, 2008—DECIDED JUNE 19, 2008
____________
Before FLAUM, WOOD, and EVANS, Circuit Judges.
FLAUM, Circuit Judge. This case stems largely from a
knee injury Joseph M. Bellino suffered while tracking
planes in the air-traffic-control tower of Chicago’s
O’Hare International Airport. As is relevant here, there
are two kinds of air-traffic controllers: those who coordi-
nate the planes’ movements from a remote location via
radar and those who, like Bellino, coordinate the planes’
takeoffs and landings from the airport’s control tower.
2 No. 07-2068
The latter job involves frequent movement around the
tower to keep a clear line of sight, and Bellino’s injury
made this hard to do.
When Bellino requested an accommodation, his super-
visors at the Federal Aviation Administration offered to
staff him in front of the radar instead, a job he had per-
formed for years before moving to the tower. But Bellino
refused, and a few years later, this lawsuit followed.
Bellino alleged below that the FAA violated the Rehabil-
itation Act by failing to reasonably accommodate his
disability, by retaliating against him for filing com-
plaints with the EEOC, and by creating a hostile work
environment. After discovery, the district court held
otherwise, granting the Secretary’s motion for sum-
mary judgment. We agree with that decision and thus
affirm.
I. Background
Bellino has worked as an air-traffic controller off and on
since 1968. For most of his tenure, Bellino worked near
Chicago’s O’Hare International Airport at the terminal
radar approach control center, known by the acronym
TRACON. When planes are within a thirty- to fifty-mile
radius of O’Hare, the TRACON is responsible for
guiding their movements via radar. To do so, controllers
sit in front of radar monitors while coordinating the
traffic overhead. When a landing plane is within five
miles of the runway, controllers in O’Hare’s control tower
take over and bring the plane in. This process works in
reverse for takeoffs. See generally Federal Aviation Ad-
ministration, Fact Sheet: Co-Located TRACONS (Terminal
Radar Approach Control), http://www.faa.gov/news/
No. 07-2068 3
fact_sheets/news_story.cfm?contentkey=4009 (Mar. 24,
2006) (last visited June 2, 2008).
During the period at issue, the tower differed from the
TRACON in two relevant respects: Tower controllers
received a 10% annual bonus, called controller incentive
pay, whereas O’Hare’s TRACON controllers only re-
ceived a 1.6% bonus.1 And the tower’s controllers largely
monitored the planes the old-fashioned way—visually.
This latter difference meant that the controllers were
constantly on the move around the tower. A controller
would have to run from one end of the tower to the
other to track a plane, sidestepping colleagues and the
various obstacles that may lie in the way. Or, as the
need arose, a controller would have to perch himself on
a stool or a box to maintain a clear line of sight over
the heads of his colleagues. The job was, in short, more
physically demanding than watching the radar remotely.
In 2001, the FAA granted Bellino’s request to move
from the TRACON to the O’Hare tower. And in Septem-
ber 2002, while tracking a plane from atop a stool,
Bellino fell and aggravated a knee injury that he had
suffered years before, eventually causing both knees to give
out. After surgery on his knees and a few months of
1
The exact bonus earned at the TRACON is not clearly set
out the record. The parties agree that the amount was 1.4%.
The magistrate, crediting the “documentary evidence,” instead
found 1.6% to be right. The difference between the two is
inconsequential; either way the bonus at the TRACON was
much less than that offered in the tower. Accordingly, we
adopt the percentage found by the magistrate for purposes
of this opinion.
4 No. 07-2068
recovery, Bellino returned to work in April 2003. Upon his
return, Bellino requested a “reasonable accommodation”
for the “partial disability” that had resulted from
his injured knee. What followed over the next year-and-a-
half was an overlapping (and increasingly heated) series
of disputes between Bellino and his supervisors at the
FAA, eventually resulting in this lawsuit.
The first dispute concerned whether Bellino could
show that his knee injury constituted a “partial disability.”
The FAA initially responded to Bellino’s April 2003
request by asking for more medical information re-
garding his knee. The doctor’s report that Bellino had
provided to the FAA didn’t indicate that he had a “partial
disability.” So when Bellino claimed as much, his super-
visors requested a doctor’s report to confirm his claim.
Bellino responded in a May 2003 letter that he could not
get an accurate medical assessment of his ability to return
to work because the FAA’s “position description” for his
duties was inaccurate. The air-traffic controllers’ union
and the FAA had negotiated a “position description” for
all the air-traffic controllers nationwide, and the FAA
had provided this description for purposes of Bellino’s
initial medical examination. But the description doesn’t
indicate whether an air-traffic controller moves around
or sits all day. Bellino claimed that without a description
of his duties in the tower, he could not get an evaluation
that would accurately assess his ability to return to work.
This basic dispute continued over the ensuing months.
The FAA exhibited a good deal of suspicion over Bellino’s
claimed disability, and Bellino displayed increasing
frustration in the “position description” the FAA pro-
vided. An April 2003 medical report said that Bellino
could only work four-hour days, but said nothing about
No. 07-2068 5
a “partial disability.” A few months later, Bellino’s super-
visors requested more specific information, but none
was forthcoming. In October 2004, Bellino’s supervisor
sent him a letter stating that a subsequent report from
another doctor did not indicate that Bellino “me[t] the
regulatory requirements for reasonable accommodation.”
And the FAA never did provide a more specific “posi-
tion description” to Bellino’s doctors.
At the same time, Bellino and the FAA also could not
agree on a “reasonable accommodation.” The parties
continue to dispute exactly what accommodation the
FAA even offered to Bellino, even though as will be
seen there is no real dispute. Following his return in
April 2003, Bellino filed an equal employment oppor-
tunity (“EEO”) complaint alleging that the FAA had
failed to offer him any accommodation. He claimed that
he had requested a transfer to the TRACON, but a super-
visor had denied the request. In a November 2003
affidavit submitted as part of an EEOC complaint,
Bellino repeated this same claim. Bellino also sent his
supervisors letters in May 2003, April and June 2004, and
October 2005. Each letter asked why he had not received
a reasonable accommodation, though the letters dealt
more with the on-going dispute over the “position des-
cription” and medical evaluations than with the specifics
of the accommodation.
The FAA sets out a starkly different version of events. It
claims that, from the outset, Bellino’s supervisors in the
tower offered to return him to the TRACON, albeit with
the lower TRACON bonus instead of the 10% bonus
earned at the tower. Bellino’s union representative, who
negotiated on Bellino’s behalf, testified in his deposition
that the “only issue [the parties] ever had” was that the
6 No. 07-2068
FAA “would send him back [to TRACON] but only at
the [lower bonus rate] of 1.6 percent.” And an Octo-
ber 2004 letter from a supervisor to Bellino stated “[s]ince
the Tracon . . . is in need of air traffic controllers, I will
offer you, again, this opportunity to return to the
Tracon . . . if you wish. Your pay will be adjusted to re-
flect the pay for the facility and the location. Therefore,
your [bonus] will be reduced.” In other words, the FAA
says that an offer to transfer Bellino to the TRACON
has always been on the table, but Bellino wanted to take
the higher bonus with him.
As the months passed, Bellino also came to believe that
the FAA was retaliating against him for the several EEO
complaints he had filed with the Department of Transpor-
tation since returning to work. Bellino first filed a com-
plaint against the FAA in May 2003, followed by two
more in March and August 2004. In them, he described a
campaign of retaliation that the FAA had allegedly under-
taken and said that these same acts created a hostile
work environment.
Bellino first alleged that the FAA had denied a re-
quest for “administrative duties” as retaliation for his
EEO claims. In his request for an accommodation in April
2003, Bellino had asked to be assigned “administrative
duties” as one alternative. Based on its contract with the
union, the FAA would occasionally assign these duties to
controllers who had lost their medical clearance to work in
the tower. “Administrative duties” are short-term assign-
ments, which included answering phones or other odds
and ends short of monitoring the skies. The FAA denied
this request and also denied a later request for these
duties that Bellino made in June 2004.
No. 07-2068 7
Bellino’s March 2004 EEO complaint cited the FAA’s
intransigence in providing a “position description” as
another form of retaliation. And finally, Bellino claimed
the FAA improperly revoked his medical clearance. In
June 2004, Bellino gave a note to a supervisor asking for
leave “so that I do not place aircraft and personnel in an
unsafe situation.” His supervisor forwarded the note to
the flight surgeon, who decided to temporarily revoke
Bellino’s medical clearance. Bellino’s July 2004 EEO
complaint alleged that this revocation was instead meant
as punishment for Bellino’s prior EEO claims.
In two Final Agency Decisions, the Department of
Transportation rejected all of Bellino’s claims. Bellino did
not appeal the agency’s decisions, instead filing this case
in the Northern District of Illinois in February 2005. His
amended complaint named Secretary Mineta as the defen-
dant and repeated the claims he had raised before
the Department of Transportation: failure to provide a
reasonable accommodation, retaliation, and a hostile
work environment. The parties consented to proceed
before a magistrate, and, after discovery, the parties
filed cross-motions for summary judgment. As it turns
out, before the magistrate issued his decision, Bellino
accepted a position to work “at the TRACON in a sit-
down position that meets his medical restrictions.” Subse-
quently, in a balanced and comprehensive opinion, the
magistrate granted the Secretary’s motion for sum-
mary judgment and denied Bellino’s. This appeal followed.
II. Discussion
Bellino repeats on appeal the same claims that he
raised below, namely that the FAA failed to reasonably
8 No. 07-2068
accommodate his disability; that the FAA retaliated
against him for filing EEO complaints; and that the same
acts were harassment that produced a hostile work envi-
ronment. Because this comes to the Court on a motion
for summary judgment, we review the magistrate’s deci-
sion de novo and construe ambiguities in the record in
the light most favorable to Bellino. Garg v. Potter, 521
F.3d 731, 735 (7th Cir. 2008). The following sections dis-
cuss each of Bellino’s claims in turn.
A. Reasonable Accommodation
The Rehabilitation Act of 1973 incorporates the pro-
hibitions contained within the Americans with Disabil-
ities Act, 29 U.S.C. §§ 791(a), (g), and requires federal
agencies like the FAA to offer “reasonable accommodation”
to “qualified individuals with a disability.” Id.; 42 U.S.C.
§ 12112(b)(5)(A) (2006). Otherwise, the agency has dis-
criminated against that person based on his disability
and will be liable. 42 U.S.C. § 12112(b)(5)(A). To make this
claim, a plaintiff must show that the employer had
notice of his disability and still refused to take action
that could have kept him working. Or, in the words of the
ADA, Bellino has to show that (1) his knee injury makes
him a “qualified individual with a disability”; and (2) the
FAA knew of the disability; but (3) nonetheless failed to
make a “reasonable accommodation.”2 EEOC v. Sears,
Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005). As to this
2
In evaluating Bellino’s claim, we look to our cases under the
Americans with Disabilities Act, which Congress has told us
to credit in evaluating “complaint[s] alleging nonaffirma-
tive action employment discrimination under” the Rehabilita-
tion Act. 29 U.S.C. § 791(g).
No. 07-2068 9
last point, a “reasonable accommodation” is one that
“effectively accommodates the disabled employee’s
limitations,” id., such as an employer’s offer of a “reassign-
ment to an open position.” 42 U.S.C. § 12111(9).
The district court held that Bellino was in fact disabled
but nonetheless dismissed his claim because he had refused
the FAA’s offer to transfer him to the TRACON, which was
a “reasonable accommodation.” On appeal, however, it’s
unnecessary to pass on whether Bellino was a “qualified
individual with a disability.” Because he rejected the FAA’s
offer of a “reasonable accommodation,” his discrimination
claim fails regardless whether he is actually disabled.
Bellino’s basic claim has changed a number of times
between his EEO complaints, the district court, and now
here on appeal. In his original EEO complaint following
his return to the tower in April 2003, he said that the
FAA refused to let him transfer to the TRACON when he
had asked. He even called such a transfer a “no-brainer” as
far as reasonable accommodations go. Then during
this litigation, he said that, even if he had been given
such an offer, the TRACON jobs were not all “sit-down
jobs” that would accommodate his knee injury. Also, he
claims that the FAA almost immediately rescinded any
offer it made to move him to the TRACON. And any
move would have required him to undergo additional
training, which he was physically unable to perform. He
also claims that his supervisor never really gave him an
offer of “reasonable accommodation” because she con-
cluded that Bellino did “not meet the regulatory require-
ments for reasonable accommodation” even though
she offered to transfer him to the TRACON.
But these claims are all unavailing. The evidence ad-
duced below shows at a minimum that in October 2004
Bellino received an offer to move to the TRACON at the
10 No. 07-2068
lower bonus level, which he denied. The October 21,
2004 letter to Bellino from his supervisor could not
have been clearer:
Since the Tracon [sic] in Elgin, IL is in need of air traffic
controllers, I will offer you, again, this opportunity to
return to the TRACON . . . if you wish. Your pay
will be adjusted to reflect the pay for the facility and
location. Therefore, your [annual bonus] will be re-
duced.
The letter then set out two check-boxes for Bellino to
mark. The first said “I accept the position at . . . TRACON.”
And the second said “I reject the position at . . . TRACON
and want to continue training at O’Hare Air Traffic
Control Tower.” The letter concluded by asking Bellino
to “return this form with the appropriate aforemen-
tioned option checked off.” After initially denying in his
deposition both that he had ever seen this letter and that
the FAA had offered him such a transfer—the latter of
which had formed the entire basis for his dispute with
the FAA—Bellino issued an errata sheet saying that he
had in fact received the letter. Return correspondence
from Bellino to his supervisor dated October 22, 2004
confirms as much. There, Bellino said that he was “in
receipt of [her] letter.” He went on to characterize his
supervisor’s offer as an “order to report to work at the
Chicago O’Hare Tower,” accused her of “abusing [her]
authority,” and vowed to “seek redress through the U.S.
District Court in the near future.” Bellino claims that his
supervisor rescinded this offer a week later, but the
evidence does not so indicate.
This back-and-forth suffices to show that no genuine
issue of fact could exist as to whether the FAA offered
Bellino an open position at the TRACON. So the only
issue is whether this offer was a “reasonable accommoda-
No. 07-2068 11
tion,” and we hold that it was. Bellino testified in his
deposition that the TRACON position would have been
a “reasonable accommodation,” saying that had he been
offered a position in the TRACON, he would have
“[a]bsolutely” accepted. And Bellino’s union representa-
tive called a transfer to the TRACON a “no-brainer”
because it was a job where Bellino “could sit [and] didn’t
have to walk.” They offered these characterizations for
good reason. The salary, duties, and responsibilities
attending the two positions were identical. Here, Bellino
argues that the TRACON job was not guaranteed to be a
sit-down job, but no evidence supports this claim. When
specifically asked in his deposition whether the “Elgin
TRACON is a sit-down position,” he responded “it is,”
without the qualifications he has tried to give this fact in
court. He even characterized the TRACON as a sit-down
position in a letter he wrote to his congressman seeking
assistance in his ongoing dispute, calling the TRACON
position one “that would not require him to stand and
move about.” Not to mention the fact that he works there
today, “in a sit-down position that meets his medical
restrictions.”
Given the identical salaries, geographic proximity to
each other, and the similarity of their responsibilities,
the only real difference between the two was the annual
bonus. On appeal, Bellino (contrary to his union represen-
tative’s assessment) denies that this dispute ever had
anything to do with the different bonuses. Accordingly,
we have no occasion to decide whether this difference
should factor into the reasonable accommodation calcu-
lus, though our precedent strongly suggests that it
would not. See Gile v. United Airlines, Inc., 213 F.3d 365,
374 (7th Cir. 2000) (stating that employer must consider
“transferring the employee to any of these other jobs,
including those that would represent a demotion.”); Dalton
12 No. 07-2068
v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678 (7th
Cir. 1998) (same). In sum, the TRACON and the tower
jobs were functionally identical save that the former did
not require Bellino to physically move around to track
the planes, that is, it accommodated his disability.
Bellino’s final claim with respect to the proposed accom-
modation is that it came only after a breakdown in the
interactive process. This claim fails because the FAA did
in fact offer him a reasonable accommodation in October
2004, and when an employer has done that, the “failure
to engage in the interactive process by itself does not
give rise to relief.” Ozlowski v. Henderson, 237 F.3d 837,
840 (7th Cir. 2001); Rehling v. City of Chicago, 207 F.3d
1009, 1015-16 (7th Cir. 2000); Sieberns v. Wal-Mart Stores,
Inc., 125 F.3d 1019, 1023 (7th Cir. 1997). Because it is
indisputable that the FAA in fact offered a reasonable
accommodation, it is unnecessary to pass over the
quality of the interactive process that produced that
accommodation. Ozlowski, 237 F.3d at 840.
B. Retaliation
Bellino points to three actions by the FAA that, he
claims, constituted retaliation for his EEO complaints:
(1) the FAA’s refusal to give an accurate “position de-
scription”; (2) the denial of “administrative duties”; and
(3) the withdrawal of his medical clearance.3 He claims
the FAA retaliated against him both for his own EEO
3
Bellino’s brief cites these as only the “most significant[ ]”
adverse employment actions, not including those others
“detailed in the . . . [f]acts.” This last part is not an argument,
FED. R. APP. P. 28(a)(9)(A), and so we do not consider any
other grounds that may exist in the facts.
No. 07-2068 13
complaints and for those that he filed on behalf of his co-
workers over the years. To prove retaliation, Bellino
chose the indirect method of proof, which requires a
prima facie showing that (1) his EEO complaints were
protected activity; (2) the FAA subjected him to an
adverse employment action; (3) he performed his job
satisfactorily; and (4) a similarly situated employee
who did not file an EEO complaint was treated more
favorably. Burks v. Wisconsin Dept. Of Transp., 464 F.3d
744, 758 (7th Cir. 2006). If Bellino made this showing,
the burden would shift to the FAA to articulate some
legitimate reason for its action, after which Bellino would
have to show that this reason was a lie to cover for dis-
crimination. Id.
But Bellino cannot establish his prima facie case be-
cause he has not pointed to a single similarly situated
individual. The only actual name offered by Bellino on
appeal is that of a co-worker, Anna Von Werder, to
whom, he claims, the FAA gave administrative duties
when she had requested them. But, as the record shows,
the FAA gave her these duties despite the fact that she
had filed EEO complaints against the FAA. Because this
is the “protected activity” Bellino alleges as the basis of
retaliation, Von Werder is not similarly situated. Aside
from Von Werder, Bellino claims in his brief only that the
FAA did not give any other air-traffic controller an im-
proper “position description,” deny a request for “admin-
istrative duties,” or revoke another controller’s med-
ical clearance. He does not, however, identify who these
other air-traffic controllers are. Such a basic showing
is necessary for a plaintiff to establish his prima facie
case, see, e.g., Kampmier v. Emeritus Corp., 472 F.3d 930,
938 (7th Cir. 2007); Hoffman-Dombrowski v. Arlington
14 No. 07-2068
Intern. Racecourse, Inc., 254 F.3d 644, 651-52 (7th Cir. 2001),
meaning Bellino has not done so here.
C. Hostile Work Environment
Finally, Bellino claims that the FAA’s treatment of his
disability created a hostile work environment. We have
assumed both that the Rehabilitation Act provides such a
cause of action and that the Title VII standard applies
where, as here, the facts do not require us to resolve
the issue in order to decide the case. Mannie v. Potter,
394 F.3d 977, 982 (7th Cir. 2005). In the Title VII context,
we have identified four elements of a hostile work en-
vironment claim, which require, as modified: (1) the
plaintiff must be the object of unwelcome harassment;
(2) the harassment must be based on disability; (3) it must
be sufficiently severe and pervasive so as to alter the
conditions of employment; and (4) there must be a basis
for employer liability. Luckie v. Ameritech Corp., 389
F.3d 708, 713 (7th Cir. 2004). Bellino identifies the same
alleged retaliatory acts cited above as the basis for
his hostile work environment claim, adding to the list
both the denial of a reasonable accommodation and the
deliberate miscalculation of his salary. He argues that,
when these acts are viewed together, the FAA made
his working conditions intolerable because of his knee
injury.
We disagree. Bellino’s claim fails because none of the
acts that he identifies show that the FAA harassed him
because of his disability. First, as discussed above, Bellino
received an offer for a reasonable accommodation, so
claiming that the denial of such an accommodation was
harassment is a non-starter. In addition, the denial of his
No. 07-2068 15
medical clearance was not meant to harass Bellino for
his disability. The FAA only denied Bellino’s medical
clearance after he gave his supervisor a note saying
“I am requesting to take the full amount of leave that can
be advanced to me so that I do not place aircraft and
personnel in an unsafe situation—much less myself.” The
flight surgeon would say later that Bellino’s original
note had “warranted Mr. Bellino’s temporary removal
from safety duties pending clarification.” Bellino’s med-
ical clearance was restored two months later, and he
had received worker’s compensation during his absence.
Contrary to Bellino’s claims, removing his medical clear-
ance after he said he would be placing planes, passengers,
and personnel “in an unsafe situation” made a lot of
sense. It was not an act of harassment spurred by his
disability.
The FAA had similar justification for denying his re-
quest for administrative duties. Bellino’s supervisor
denied him these duties after his first request in April
2003 because no such duties were available. A super-
visor denied his second request in June 2004—after the
withdrawal of his medical clearance—because the ad-
ministrative duties that were available did not meet his
“doctor’s current temporary restrictions.” Bellino has not
put forth any evidence to the contrary, let alone any
evidence that his disability caused the denial. As for his
pay, it is true that Bellino was at times underpaid. But
Bellino’s late payment occurred because he used a num-
ber of different leave categories when taking time off, a
perfectly acceptable practice but one that threw the
FAA for a loop. This confusion produced administrative
missteps, which in turn caused under-payment. As the
undisputed evidence shows, the FAA was diligent in
16 No. 07-2068
correcting these errors, and so calling this a form of
harassment would be unwarranted.
Finally, it is true that the FAA did not give Bellino the
“position description” he requested for his medical exami-
nations. Instead, the FAA provided the position descrip-
tion that the union had agreed to in the collective bar-
gaining agreement, which unfortunately was nondescript
when it came to the physical demands of working in the
tower. The FAA certainly could have been more coopera-
tive in getting the appropriate position description to
Bellino. Nonetheless, there is no evidence that this short-
coming was meant as harassment because of Bellino’s
disability. The reason the position description was rele-
vant was to substantiate Bellino’s disability. But even
without this substantiation, the FAA offered Bellino an
accommodation that would have allowed him to con-
tinue working. Absent some other evidence of discrim-
ination, an offer to accommodate Bellino’s disability is
inconsistent with hostility on that basis. Accordingly,
whether these acts are viewed seriatim or as a group,
Bellino’s claim cannot succeed.
III. Conclusion
For the foregoing reasons, we AFFIRM the district
court’s grant of summary judgment.
USCA-02-C-0072—6-19-08