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Bellino v. Peters

June 19, 2008

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.

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED FEBRUARY 15, 2008

Before FLAUM, WOOD, and EVANS, Circuit Judges.

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 coordinate 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.

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 supervisors at the Federal Aviation Administration offered to staff him in front of the radar instead, a job he had performed 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 Rehabilitation Act by failing to reasonably accommodate his disability, by retaliating against him for filing complaints with the EEOC, and by creating a hostile work environment. After discovery, the district court held otherwise, granting the Secretary's motion for summary 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 Administration, Fact Sheet: Co-Located TRACONS (Terminal Radar Approach Control), http://www.faa.gov/news/ 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 received a 1.6% bonus.*fn1 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 September 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 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 regarding 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 supervisors 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 provided. An April 2003 medical report said that Bellino could only work four-hour days, but said nothing about a "partial disability." A few months later, Bellino's supervisors 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 "position 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 opportunity ("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 supervisor 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 description" 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 FAA "would send him back [to TRACON] but only at the [lower bonus rate] of 1.6 percent." And an October 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 reflect the pay for the facility and the location. ...


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