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John L. Gurley v. Ray Lahood

April 3, 2012

JOHN L. GURLEY, PLAINTIFF,
v.
RAY LAHOOD, SECRETARY OF THE DEPARTMENT OF TRANSPORTATION, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff John Gurley, a retired air-traffic control manager, brings suit against the secretary of the Department of Transportation, claiming discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C § 621 et seq. Gurley's relationship with his supervisors began to fray prior to his retirement due to his extended periods of sick leave and management dissatisfaction with the medical documentation for those absences. Gurley retired in 2008 at the age of 61. In this lawsuit, he alleges that the Federal Aviation Administration ("FAA"), an agency of the Department of Transportation, discriminated against him on the basis of age when his supervisors required him to exhaust certain types of annual leave that were compensable upon retirement before charging any leave against his "credit hours"-a type of paid leave that is not compensable upon separation. The result was that Gurley, who was capable of working, was required to do so or to use leave hours for which he would otherwise be compensated at the time of his separation from employment. Gurley also alleges that the FAA engaged in age discrimination when it issued a letter reprimanding him for failing to provide adequate medical documentation for his sick leave, and again when it issued a proposed notice of termination (later withdrawn) for the same failure. Defendant moves for summary judgment. For the reasons stated below, the court concludes that Gurley has not suffered adverse action within the meaning of the age discrimination law and has not shown that age was the reason for any of the action he challenges here. Defendant's motion is granted.

FACTUAL BACKGROUND

Gurley, born October 17, 1945, worked for the FAA for nearly forty years-from 1970 until his retirement in 2008. (Def.'s Rule 56.1 Statement of Uncontested Facts (hereinafter "Def.'s 56.1"), ¶¶ 1-2.) At the time of his retirement, Gurley's title was "First Line Manager" for the Chicago Air Route Traffic Control Center ("Chicago ARTCC"). (Id. ¶ 3.) For safety reasons, the FAA requires certain medical qualifications of employees in Gurley's position. (Id. ¶ 4.) In August 2006, Gurley twice visited a doctor complaining of lightheadedness and dizziness, and his doctors later diagnosed him with persistent vertigo. (Id. ¶ 5; Gurley Decl., Attach. to Resp. to Def.'s Local Rule 56.1 Statement of Uncontested Facts, ¶ 11.) His condition prompted the FAA's flight surgeon to "decertify" Gurley on August 28, 2006, pending a comprehensive report from Gurley's physician. (Def.'s 56.1 ¶ 6.) From his August 28, 2006 decertification until his retirement in January 2008, Gurley took various extended periods of sick leave. (Id. ¶ 7.)

The FAA Human Resources Policy Manual ("HRPM") describes the documentation that an official may request from an employee seeking sick leave approval. Typically, no documentation is required for absences of three days or less. (HRPM, Chapter on Sick Leave for Personal Medical Needs, Ex. F to Def.'s 56.1, ¶ 8.) An employee absent for more than three days "must furnish a medical certificate," unless the employee did not consult a physician, in which case the approving official may accept a written statement from the employee explaining his or her illness. (Id.) In any circumstance in which there is doubt concerning the employee's need for sick leave, the approving official may ask the employee to supply "a medical certificate . . . and/or daily information about his/her health condition." (Id.) Failure to do so "may result in charge to absence without leave (AWOL)." (Id.) When an employee requests leave for a "serious health condition," the approving official must request medical certification from a health care provider detailing (1) the date the condition began; (2) diagnosis and prognosis; (3) whether the employee is incapacitated, and the likely duration of the incapacity; (4) a general statement as to the condition, the examination, and the treatment; (5) a statement that the employee is unable to perform at least one essential job function; and (6) the circumstances surrounding any treatment plan that will result in the employee's need for intermittent or reduced-time leave. (HRPM ¶ 9.)

Sick leave is just one of the categories of leave that air traffic employees accrue; as explained below, the distinction between these categories of leave is at the center of Gurley's age discrimination claim. Sick leave, redeemable as described above, rolls over from year to year, but any unused sick leave is forfeited upon separation from employment. (Dunphy Decl., Ex. E to Def.'s 56.1, ¶ 8.) Annual leave also carries over from one year to the next, but the employee is compensated for any unused annual leave upon separation; Gurley himself received a pre-deduction lump sum of $36,064 for 448 hours of annual leave when he retired in 2008. (Id. ¶ 9.) At that time, he also received a lump sum, totaling $88,608.61, for the payout of his restored annual leave-leave hours that were "restored" to Gurley in the wake of the 1981 air trafficker controllers' strike and could be redeemed at any time through 2012. (Id. ¶ 10; Gurley Decl. ¶¶ 32, 33.) The final category of leave hours relevant here-"credit hours"-are a "special form" of compensation employees earn when they work more than an eight-hour shift. Employees may take paid leave for the credit hours they have accrued, but any unused credit hours are forfeited upon separation. (Dunphy Decl. ¶ 7; Gurley's Supplemental Statement of Complainant, Department of Transportation Complaint 2007-21304-FAA-04 (hereinafter "Gurley's DOT Complaint Statement"), Ex. B to Def.'s 56.1, at 2-3.) Gurley retired with a balance of 345.75 credit hours. (Dunphy Decl. ¶ 7.)

Over the course of the extended absences that began in August 2006, the FAA sent Gurley a number of letters requesting detailed medical certification of his condition. Flight Surgeon Dr. Marvin Jackson sent the first of these letters on August 28, 2006 (Letter from Jackson to Gurley of 8/28/2006, Ex. G to Def.'s 56.1), but Gurley states that he never received it. (Gurley Decl. ¶ 1.)

Gurley did, however, receive the letter Chicago ARTCC Operations Manager Anthony Milligan sent him on October 16, 2006, explaining that the initial physician's notes that Gurley had provided were incomplete and requesting more specific information, pursuant to the HRPM provisions concerning serious medical conditions. (Letter from Milligan to Gurley of 10/16/2006, Ex. G to Def.'s 56.1.) Milligan attached a copy of Department of Labor Form WH-380, a Certification of Healthcare Provider form, and asked that Gurley return it, or a written statement containing the required information, within fifteen days. (Id.) Gurley's physician at the time, Dr. Ronald Bosh, responded in a letter dated November 21, 2006, providing a completed WH-380 form. (Completed Form WH-380, Ex. 2 to Gurley Decl; Letter from Bosh to Jackson of 11/21/2006, Ex. 3 to Gurley Decl.) Dr. Bosh explained that Gurley had been diagnosed with "persistent vertigo" but that the cause was still undetermined and the prognosis was unclear. (Letter from Bosh to Jackson of 11/21/2006.) Gurley had undergone a magnetic resonance imaging test ("MRI"), added Dr. Bosh, but was still waiting for further analysis from a neurologist. (Id.)

Perhaps because Gurley's local physicians were unable to reach a definitive diagnosis and treatment plan, from December 16, 2006, until March 8, 2007, Gurley received treatment at the Mayo Clinic in Arizona. (Gurley Decl. ¶ 8.) (It is not clear from the record whether Gurley was inpatient at the Mayo Clinic for all or any portion of that time.) While he was in Arizona, the FAA continued to send Gurley letters requesting additional medical information: (1) on February 16, 2007, Milligan sent Gurley a letter advising him that the medical documentation from Dr. Bosh, dated November 21, 2006, was no longer current and that Gurley needed to send recent records, along with a request for leave, to avoid placement on AWOL status; (2) on February 21, 2007, Chicago ARTCC Air Traffic Manager William Cound sent Gurley a memo requesting additional information and threatening disciplinary action if he failed to comply; (3) on March 7, 2007, Milligan sent Gurley a letter stating that the Mayo Clinic records Gurley had sent did not reveal "a clear and specific diagnosis, prognosis, treatment plan, nor any indication that you are unable to perform the essential functions of your position due to your medical condition," and that Gurley still needed to submit an updated leave request; (4) on March 27, 2007, Milligan sent another letter explaining that the records Gurley had sent in response to earlier communications suggested a diagnosis, but that other pertinent information was still lacking. (Letters, Ex. G to Def.'s 56.1.) Gurley claims that he received none of this correspondence while in Arizona. The addresses to which these letters were sent has been redacted, but the court assumes that Milligan sent them to Gurley's home address, rather than to wherever he was staying in Arizona. But even in the light most favorable to Plaintiff, Gurley must have been aware of Milligan's request for additional information, because Milligan's March 7 letter referred specifically to information received from the Mayo Clinic. (Id.)

Gurley maintains that he followed all leave procedures. (Pl.'s Rule 56.1 Statement of Additional Undisputed Facts (hereinafter "Pl.'s 56.1"), ¶ 15.) In addition to the WH-380 form and Doctor Bosh's letter, Gurley asserts that he provided the following additional medical documentation, although he does not specify when he provided it: (1) an assessment plan by Doctor Bosh, dated August 2006 (Ex. 4 to Gurley Decl.); a note from Doctor Bosh stating that Gurley was unable to drive, dated September 2006 (Ex. 6 to Gurley Decl.); a prescription for vestibular rehabilitation therapy from the Mayo Clinic dated February 8, 2007 (Ex. 7 to Gurley Decl.); a physical therapy plan of care by a Mayo Clinic occupational therapist, dated February 9, 2007 (Ex. 5 to Gurley Decl.); and a March 11, 2007 note from Doctor Bosh confirming that Gurley "is still being treated for severe vertigo and is still unable to return to work at this time." (Ex. 7 to Gurley Decl.)

At some point-Gurley does not specify when-it appears that Milligan temporarily put Gurley on AWOL status because of his lack of medical documentation. (Pl.'s 56.1 ¶¶ 8, 39.) The AWOL time was converted to paid sick leave once Gurley submitted the appropriate paperwork, although the date this occurred is also unclear. (Id. ¶ 9.) Also, during Gurley's period in Arizona, he submitted a request to use 344 credit hours to cover the period from January 8, 2007 to March 8, 2007. (Ex. 9 to Gurley Decl.) Milligan denied his request based on "operational necessity." (Id.) It may be that relevant policies permitted Defendant to deny a request for use of "credit hours" for reasons of "operational necessity;" neither party has explained this. In any event, Gurrley does not appear to argue that there was no "operational necessity" problem with the approval of his credit hours request. He nevertheless asserts that Milligans decision to deny the request was motivated by discrimination against him as an older person with health problems.

Gurley returned to work on April 9, 2007, in a "limited capacity," per his doctor's request. (Letter from Milligan to Gurley of 3/25/2007 (hereinafter "Clarification Letter"), Ex. G to Def.'s 56.1.) Gurley was unable to resume his full-time position because he was undergoing rehabilitative therapy two to three days per week. (Gurley Decl. ¶ 14.) Even after Gurley returned to work part-time, the FAA continued to request additional medical documentation. In particular, on April 25, 2007, Gurley received several communications from Milligan. First, Milligan sent him a letter seeking clarification of what Gurley's "limited capacity" entailed and requesting a statement explaining what specific duties Gurley was unable to perform. (Clarification Letter.)

Second, in a separate document, Milligan provided Gurley with written notice that he had been "officially reprimanded for failure to follow leave procedures." (Letter from Milligan to Gurley of 3/25/2007 (hereinafter "Reprimand Letter"), Ex. I to Def.'s 56.1, at 1.) Milligan cited Gurley's failure to provide "administratively acceptable evidence" of his condition, and stated that he had breached his duties as a supervisor to comply with all FAA policies and to set a good example for his subordinates. (Id. at 1.) Future breaches of policy could result in removal from service, Milligan warned. (Id. at 2.)

In a third document, Milligan memorialized new restrictions on Gurley's use of leave time and credit hours deemed necessary based on Gurley's failure to follow leave procedures. (Memorandum from Milligan to Gurley of 3/25/2007 (hereinafter "Leave Time Memo"), Ex. M to Def.'s 56.1.) One of the new restrictions required Gurley to use all of his "use or lose" annual leave and restored annual leave prior to using any credit hours. (Leave Time Memo at 1.)*fn1 Gurley has submitted statements from several fellow Chicago ARTCC managers, compiled during the course of a DOT investigation, to demonstrate that other employees were not required to use annual leave before their credit hours. (Exs. 2-4 to Pl.'s 56.1.) Moreover, Milligan admits that he did not impose this restriction on any other employee; ...


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