Dyrek, Gary M. v. Garvey, Jane

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-3533

GARY M. DYREK,

Plaintiff-Appellant,

v.

JANE GARVEY, Administrator,

Federal Aviation Administration,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 6314—George W. Lindberg, Judge.

____________

ARGUED FEBRUARY 21, 2002—DECIDED JUNE 20, 2003

____________

Before FLAUM, Chief Judge, and HARLINGTON WOOD, JR.

and WILLIAMS, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge. Appellant Gary

Dyrek was employed by the Federal Aviation Administra-

tion (“FAA”) as an Air Traffic Control Specialist (“ATCS”).

FAA Air Traffic Control Specialists, also known as air

traffic controllers, are responsible for directing air traffic,

both on the ground and in the air. It is their duty to pro-

vide for the safe, orderly, and expeditious flow of air

traffic across U.S. airspace. FAA rules and regulations

require an air traffic controller to maintain a valid medical

certificate to minimize the effects of health concerns on

system safety.

2 No. 01-3533

Dyrek began working as an air traffic controller in 1981.

During the time he worked at the FAA, Dyrek’s work

performance was never criticized. However, by letter dated

March 14, 2000, Dyrek was informed he was being termi-

nated from his position effective March 17, 2000, “because

of [his] inability to meet medical standards required for

Air Traffic Control Specialists.” This termination letter

was the culmination of nearly three years of discussions

between Dyrek and the FAA regarding his health. In

October 1993, Dyrek was diagnosed as having diabetes

mellitus. In May 1997, Dyrek began taking daily injec-

tions of insulin for his diabetes. While the mere diagnosis

of diabetes mellitus is a disqualifying condition for ini-

tial hire as an air traffic controller, an air traffic controller

who becomes an insulin-using diabetic while employed

by the FAA may maintain his or her medical certificate

through “special consideration.”1

By a letter dated June 30, 1997, the Regional Flight

Surgeon’s office temporarily withdrew Dyrek’s medical

clearance for safety-related duties, based on a review of

a medical report from Dyrek’s attending physician dated

June 13, 1997 which stated Dyrek had been placed on

insulin for his diabetes. According to the Regional Flight

Surgeon’s letter, laboratory results indicated unsatisfac-

1

As we will discuss in more detail in our opinion, a medical

clearance based on special consideration is granted based on a

favorable review of an ATCS’s medical history and a comprehen-

sive medical evaluation. The ATCS must also demonstrate stable

control of his diabetes through proper diabetes education and

skills. If medical clearance is granted based on special consider-

ation, the ATCS, his supervisors, and his coworkers must ad-

here to strict FAA guidelines throughout the workday to ensure

the ATCS is maintaining stable control of his blood sugar to

prevent dangerous diabetic complications that might interfere

with air safety.

No. 01-3533 3

tory control of Dyrek’s diabetes. The Regional Flight

Surgeon requested a comprehensive medical report from

Dyrek’s attending physician to assist in the assessment

of Dyrek’s medical status. The letter stated that the med-

ical report should contain information concerning medica-

tions, Dyrek’s current status, the doctor’s prognosis and

recommendations, the treatment regimen, and results

of any tests performed. Enclosed with the letter was a

form authorizing payment by the FAA for the writing of

the report.

When Dyrek’s medical clearance was withdrawn, he was

assigned to perform only limited “A-side duties.” “A-side

duties” do not include any responsibility for air traffic

control, and a medical clearance is not required in order to

perform “A-side duties.” Prior to 1995, the FAA had “A-side

positions” in which individuals performed only “A-side

duties.” This “A-side position” was a separate position

from that of air traffic controller. However, “A-side posi-

tions” were abolished by the FAA in 1995. Currently, air

traffic controllers are required to perform “A-side duties”

as a part of their job. The FAA and the National Air Traf-

fic Controllers Association have an agreement that al-

lows the FAA to assign air traffic controllers who are

temporarily medically disqualified to perform only “A-side

duties,” which allows those air traffic controllers to con-

tinue working despite their lack of medical clearance.

According to the deposition testimony of Deputy Re-

gional Flight Surgeon Dr. Robert Liska, prior to 1995,

there were no insulin-using diabetic air traffic controllers

who were medically certified to work in safety-related

positions. However, the FAA periodically issued Medical

Guideline Letters setting out medical protocols which

would allow for certification of insulin-using air traffic

controllers. These protocols were designed to collect

and interpret information on a case-by-case basis and set

forth standards to help the Regional Flight Surgeons in

4 No. 01-3533

understanding whether an insulin-using individual was

“safe” to perform safety-related air traffic control duties.

For example, Medical Guideline Letter MGL-B-86, titled

“Medical clearance; diabetic air traffic control specialists

who use insulin” stated, “Clearance may be granted and

shall be based on the medical history, on the results of

a comprehensive medical evaluation, on documentation of

proper education regarding diabetes, and on considera-

tion of the diabetes control skills demonstrated by each

subject ATCS.” According to MGL-B-86, “Continued clear-

ance requires control of diabetes with prevention of

hypoglycemia through close monitoring and maintenance

of appropriate blood glucose levels throughout every

work day.”

In 1997, Medical Guideline Letter MGL-B-5a-0026, titled

“Guidance for Application of Medical Retention Standards

for Air Traffic Control Specialists,” was in effect. With

respect to diabetes mellitus, MGL-B-5a-0026 states recur-

rent evidence of noncontrol, including blood sugar test

results showing elevated Hemoglobin A1C (“A1C”) levels

and elevated fasting blood sugar (“FBS”) levels, are grounds

for disqualification. According to MGL-B-5a-0026, A1C

levels at twelve percent or higher indicate uncontrolled

diabetes while A1C levels of six to seven percent indi-

cate excellent diabetes control.2

In response to the June 30, 1997 letter withdrawing

his medical clearance, Dyrek submitted a medical report

dated July 15, 1997 from his endocrinologist Dr. Steven

Bielski. By memo dated July 24, 1997, the office of the

Regional Flight Surgeon notified Dyrek that, based on

information contained in Dr. Bielski’s July 15th report, it

had been determined that Dyrek’s diabetes was “not well

2

An A1C test gives a long-term measure of how well a diabetic’s

blood sugar has been controlled.

No. 01-3533 5

controlled.” The memo stated once Dyrek “established

stable control” of his diabetes, he would need to submit “a

narrative medical report from [his] attending physician”

documenting control. It set out six specific areas which

needed to be addressed in the report—diagnosis, medica-

tions, current status, prognosis and recommendations,

treatment regimen, and results of any tests performed.

On April 24, 1998, the office of the Regional Flight

Surgeon again contacted Dyrek by memo. The memo read

as follows:

We recently received your most recent physical exami-

nation dated March 31, 1998, which indicates that

you are using insulin to control your diabetes.

Your medical clearance for safety related duties was

temporarily withdrawn on June 30, 1997, for unsatis-

factory control of your diabetes mellitus. At this time

your medical clearance remains in that status.

In our two previous correspondence dated July 24,

1997 and June 30, 1997, we requested additional

medical information. As of this date we have not

received this information and are unable to determine

your medical clearance for safety related duties.

Please provide the medical information requested

within 30 days from the date of this memorandum. For

your convenience we have attached a copy of the

previous requests along with a return envelope. If

you have any questions regarding this matter please

contact our office at the number listed above.

Several months later, the office of the Regional Flight

Surgeon sent Dyrek another memo, dated August 19, 1998,

which stated,

Your medical clearance was withdrawn June 30, 1997

because of diabetes mellitus which now requires insu-

lin for control.

6 No. 01-3533

We received a medical report from Steven J. Bielski,

M.D. dated May 21, 1998. In this report Dr. Bielski

said he was adjusting your medication.

To assist us in determining your medical status re-

garding the above, we will need a medical report from

your attending physician. This report is due within

30 days, and should include the following:

1. Diagnosis

2. Medication (to include name, dosage, frequency

and any adverse effects you may have experienced)

3. Current Status

4. Prognosis and recommendations

5. Treatment Regimen

6. Results of any x-rays or other tests performed.

Please ask your attending physician to include the

results of your most recent FBS and Hemoglobin A1C.

Attached is FAA form 3930-3 authorizing payment

for the writing only of the medical report. A self ad-

dressed envelope is also attached for the doctor’s

convenience.

If you have any questions regarding this matter, please

feel free to contact this office.

Dyrek received another short memo from the Regional

Flight Surgeon dated September 23, 1998. The September

23rd memo stated, as of that date, the office had not re-

ceived either a medical report or lab results from Dyrek’s

most recent FBS and A1C tests. The memo asked Dyrek to

provide the information within fifteen days and stated

that without the requested information the FAA was un-

able to determine Dyrek’s medical status for air traffic

control duties.

Deputy Regional Flight Surgeon Liska met with Dyrek

on October 22 and December 1, 1998 to discuss control of

No. 01-3533 7

Dyrek’s diabetes. Dr. Liska informed Dyrek that the

medications he was taking, a combination of Rezulen and

insulin, were not acceptable for a medical clearance. By

memo dated December 1, 1998, Dr. Liska again requested

a medical report including diagnosis, medication, current

status, prognosis and recommendations, treatment regimen,

and the results of any x-rays or other tests performed. Dr.

Liska met with Dyrek on January 15, 1999. That meet-

ing was documented by Dr. Liska in a memo to Dyrek

dated January 28, 1999. According to the January 28th

memo, Dyrek informed Dr. Liska at the January 15th

meeting that Dyrek had discontinued his use of Rezulen.

Dyrek asked for additional time to document control of

his blood sugar without Rezulen. In the January 28th memo,

Dr. Liska requested “an interval summary and current

status report from [Dyrek’s] attending physician about

sixty days after discontinuation of Rezulen regarding

control of [his] diabetes.” According to the memo, the re-

port, which was due no later than March 9, 1999, should in-

clude current A1C results.

Dr. Liska sent another memo to Dyrek on March 18,

1999. This memo instructed Dyrek to submit, among other

things, “a complete medical evaluation by a Board Certi-

fied/Board Eligible Endocrinologist or other diabetes

specialist approved by the Federal Air Surgeon concern-

ing your medical history and current status.” According

to Dr. Liska’s memo, the report must include, at the

minimum, a general physical examination, A1C results

both current and three months prior, confirmation from

an ophthalmologist of the absence of clinically signifi-

cant retinal disease, examination and tests to detect

any peripheral neuropathy or circulatory deficiencies of

the extremities, and a detailed report of insulin dosages

and diet. Dr. Liska stated the office had A1C readings for

Dyrek dated December 14, 1998 and March 5, 1999. Dyrek

was also instructed to submit written verification from

8 No. 01-3533

the specialist confirming Dyrek had been educated in

diabetes and its control and that Dyrek had the ability

and willingness to properly monitor and manage his

diabetes. The memo also asked that the specialist sub-

mit his opinion as to whether Dyrek’s diabetes would

adversely affect his ability to safely control air traffic. Dr.

Liska did not set a deadline for Dyrek to submit this

information, but concluded by stating, “Your prompt

attention to this matter is appreciated.”

On April 16, 1999, Dr. Liska sent another memo to

Dyrek with the subject line “Request for Medical Informa-

tion.” Dr. Liska stated he had not received the informa-

tion requested in the March 18th memorandum and at-

tached a copy of the March 18th memo for Dyrek’s conve-

nience. On April 22, 1999, Ralph Davis, Dyrek’s supervisor

and the Air Traffic Manager for the Chicago center, sent

Dyrek a memo noting Dyrek had been informed he was

required to comply with certain tasks in order to be consid-

ered for medical requalification and stating that failure

to comply with these requirements could result in dis-

ciplinary action. Finally, on May 3, 1999, the Regional

Flight Surgeon sent a memo to Human Resource Services

stating Dyrek had been determined to be “permanently

medically disqualified for the continuing performance of

ATCS duties.”

On May 20, 1999, Dyrek received a memo from Human

Resource Services, notifying him of the medical disqualifica-

tion. The memo instructed Dyrek that he had fifteen days

to request reconsideration from the Federal Air Surgeon

of the Regional Flight Surgeon’s determination and set

out the procedures for doing so. The memo also stated,

It is the policy of the FAA, to the extent possible, to

continue employment of Air Traffic Control Specialists

who are found to be not medically qualified for their

present position. You may be considered for other types

No. 01-3533 9

of available vacancies for which you qualify within the

commuting area. It is essential that you complete GL

Form 3330-50 within the fifteen day period and forward

along with a current SF-171 or OF-612, through your

facility manager to AGL-18A.

Dyrek requested a review of the medical determination

by the Federal Air Surgeon on June 5, 1999. He did not

ask to be considered for other available FAA positions or

take any of the steps necessary for continued employment

within the fifteen day period as outlined in the May 20th

memo.

A review panel, made up of doctors from the FAA’s

Occupational Health Division, considered Dyrek’s case

in order to make a recommendation to the Federal Air

Surgeon regarding Dyrek’s medical status. On December

16, 1999, the review panel issued a memo recommending

that the Federal Air Surgeon sustain Dyrek’s medical

disqualification. The panel noted, “Insulin treated diabetes

is of particular concern in the air traffic control environ-

ment due to the potential for acute hypoglycemia induced

central nervous system impairment” as well as chronic

complications involving the eyes, heart, kidneys, nervous

system, and extremities. The panel concluded (1) Dyrek

had insulin treated diabetes, a disqualifying medical

condition, (2) the documentation included in Dyrek’s agency

medical record did not meet the minimum requirements to

support a recommendation of “Special Consideration,” (3)

“[b]ased on the records provided by Mr. Dyrek, his diabetes

is not well controlled,” and (4) “[n]o basis was found . . . to

preclude future reconsideration by the Federal Air Sur-

geon, if Mr. Dyrek adequately monitors and controls his

diabetes, and provides sufficient documentation in compli-

ance with each requirement of MGL-B-86.” By letter

dated December 21, 1999, the Federal Air Surgeon in-

formed Dyrek that he was sustaining Dyrek’s disqualifica-

tion.

10 No. 01-3533

On January 3, 2000, Dyrek informed the Occupational

Health Division that he intended to submit additional

material. Dyrek subsequently faxed the office some med-

ical updates, including information suggesting Dyrek

was just learning that there is a relationship between

diet and blood glucose.

On February 14, 2000, Air Traffic Manager Ralph Davis

sent Dyrek a letter titled “Proposal to Remove.” The stated

purpose of the letter was to inform Dyrek that Davis

was proposing to remove Dyrek from his Air Traffic Con-

trol Specialist position based on Dyrek’s inability to

meet the medical standards required for the position. The

letter invited response by Dyrek within fifteen days after

receipt of the letter. Dyrek did respond by letter dated

February 27, 2000. Dyrek requested reconsideration based

on new documentation. Dyrek enclosed his blood sugar/

calorie count readings for January and February 2000,

along with charts outlining insulin dosages for those

months. Dyrek also included a letter from Dr. Bielski, dated

February 10, 2000, which read as follows:

Gary Dyrek is currently a patient of mine. He has

diabetes mellitus type 2, requiring insulin. He cur-

rently underwent a complete physical examination. His

blood pressure was 132/82. The chemistry panel re-

vealed a total cholesterol of 174 and LDL cholesterol

112.

Currently Gary is on insulin therapy in the morning

and at bedtime. We have also added Glucophage. He

has lost approximately 19 pounds in weight over the

last several months. His current hemoglobin A1C is

8.9%, which is the lowest it has been over the last

several years. The patient has been monitoring his

glucose levels. He has been watching his calories and

has been losing weight on his own with diet. Currently

there is no evidence of the diabetes affecting his eyes

or his kidneys.

No. 01-3533 11

Please do not hesitate to contact me if you have any

further questions.

Dyrek also submitted a handwritten note from the Aurora

Eye Clinic dated February 3, 2000. The note stated Dyrek

was seen in the office on that day, his vision was 20/20

in both eyes, and there was no sign of diabetic retinopathy.

Dyrek sent copies of this supplemental information to

the Federal Air Surgeon on March 2, 2000.

On March 14, 2000, the Occupational Health Divi-

sion review panel issued another recommendation to the

Federal Air Surgeon regarding Dyrek’s medical classifica-

tion. This recommendation followed a second review of

Dyrek’s medical record including the additional informa-

tion submitted March 2nd. The panel concluded “[b]ased

on available records, until very recently Dr. [sic] Dyrek’s

diabetes was poorly controlled,” “[d]uring 1998 and 1999,

Mr. Dyrek failed to provide . . . adequate documentation

to support a request for special consideration,” “[t]he cur-

rently available documentation can not support a conclu-

sion that Mr. Dyrek has achieved stable diabetic control,”

and “[i]f Mr. Dyrek adequately monitors and controls his

diabetes for a period of not less than six months” he

should submit for reconsideration. By letter dated March

15, 2000, a medical officer from the Occupational Health

Division informed Dyrek that the blood sugar readings in

his additional submissions still did not demonstrate

adequate stable diabetic control. The letter informed

Dyrek that he erred in directing his February 27th letter to

the Federal Air Surgeon as the Federal Air Surgeon does

not make employment decisions regarding air traffic

controllers, but rather deals only with medical clearance.

The letter concluded, “Should you choose to resubmit for

medical clearance in the future, you will need to provide

glucose logs demonstrating good control of your diabetes

for a period of at least six months, a reasonable under-

12 No. 01-3533

standing of the disease, and documentation meeting the

requirements of MGL-B-86.”

Meanwhile, the Regional Air Surgeon notified Ralph

Davis that there was nothing in the supplemental materials

that would change Dyrek’s medical status. Therefore, on

March 14, 2000, Davis issued his “Decision Letter” to

Dyrek, stating he had considered Dyrek’s additional

submissions, but nevertheless concluded Dyrek should

be removed effective March 17, 2000. In a letter dated

March 17, 2000 to Ralph Davis, Dyrek requested assign-

ment to any available staff position in the Chicago center

or the commuting area. While Davis, in his deposition,

stated that he considered this request to be timely, Dyrek

did not receive another placement. It is undisputed that

Dyrek’s possible assignment to another position was

dependant on the existence of a vacancy in a position that

did not require a medical clearance. In his deposition,

Ralph Davis testified there were no such vacancies at

the Chicago center in March 2000.

Following his termination, Dyrek filed both a union

grievance and an Equal Employment Opportunity (“EEO”)

complaint. However, air traffic controllers are precluded

by a collective bargaining agreement from pursuing both

a union grievance and an EEO complaint. Therefore, the

U.S. Department of Transportation dismissed Dyrek’s EEO

complaint without addressing its merits due to the pend-

ing union grievance.

On October 12, 2000, Dyrek filed a two-count com-

plaint in the United States District Court for the North-

ern District of Illinois against the FAA and FAA Adminis-

trator Jane Garvey (“the FAA”). Count I alleged the FAA

unlawfully discriminated against Dyrek because of his

diabetes in violation of the Rehabilitation Act of 1973, 29

U.S.C. § 701, et seq., the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 1277, and Title VII of the Civil Rights

No. 01-3533 13

Act of 1991, 42 U.S.C. § 2000e, et seq.3 Count II alleged a

violation of the Age Discrimination and Employment Act,

29 U.S.C. § 621, et seq. The defendants filed a motion for

summary judgment pursuant to FED. R. CIV. P. 56. Dyrek

elected not to pursue his age discrimination claims and

did not contest defendants’ motion with respect to Count II.

On August 30, 2001, the district court granted summary

judgment in favor of the defendants. With respect to

Dyrek’s disability discrimination claims, the court held

that Dyrek failed to establish the FAA’s proffered reason

for the withdrawal of Dyrek’s medical clearance and his

subsequent termination was pretextual.

ANALYSIS

We review the district court’s grant of summary judg-

ment de novo. Moore v. J.B. Hunt Transport, Inc., 221 F.3d

944, 950 (7th Cir. 2000). Summary judgment is appropri-

ate when the record, viewed in the light most favorable

to the non-moving party, shows “that there is no genuine

issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(c).

[T]he plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails

to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In our

3

While the ADA does not apply to federal agencies, see 42 U.S.C.

§ 12111(5)(B), the standards set out in the ADA are used in

determining whether a violation of the Rehabilitation Act oc-

curred in the employment context. 29 U.S.C. § 794(d).

14 No. 01-3533

analysis, we view the evidence in the light most fa-

vorable to Dyrek, the non-moving party, and draw all

reasonable inferences in his favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

Lacking direct evidence of discrimination, Dyrek pro-

ceeds under the burden-shifting approach set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under McDonnell Douglas, Dyrek bears the initial bur-

den of establishing a prima facie case of employment

discrimination. See Pugh v. City of Attica, Indiana, 259 F.3d

619, 625 (7th Cir. 2001). If Dyrek is able to establish his

prima facie case, a rebuttable presumption of discrim-

ination arises, and the burden shifts to the FAA to articu-

late a legitimate, nondiscriminatory reason for Dyrek’s

termination. See id. at 626. If the FAA meets this burden,

the presumption of discrimination disappears, and Dyrek

must prove, by a preponderance of the evidence, that the

FAA’s proffered reason was a pretext for intentional

discrimination. See id.

For purposes of analysis, we will assume Dyrek is able

to establish a prima facie case of employment discrimina-

tion, and we turn our attention to the FAA’s proffered

reason for Dyrek’s termination. See Nawrot v. CPC Int’l,

277 F.3d 896, 906 (7th Cir. 2002) (electing to turn directly

to the question of pretext). The FAA contends Dyrek was

terminated because he failed to submit documentation

to establish his diabetes was under control, despite numer-

ous requests for specific information. Dyrek does not

dispute appellees’ right to require that he control his

diabetes, nor does he challenge the FAA’s heightened

medical reporting requirements for insulin-using diabetics.

Rather, he asserts appellees’ proffered reason for his

termination is pretextual, first, because there is no evi-

dence in the record to show he was not controlling his

diabetes and, secondly, because his diabetes was actually

under control.

No. 01-3533 15

Absent direct evidence of pretext, Dyrek may show

the FAA’s proffered reason for his termination was pre-

textual by pointing to evidence which would tend to

prove the proffered reason was factually baseless, not

the actual motivation for the discharge, or insufficient

to motivate the discharge. Nawrot, 277 F.3d at 906. It

is not enough to show the decision was “ ‘mistaken, ill

considered, or foolish.’ ” Id. (quoting Jordan v. Summers,

205 F.3d 337, 343 (7th Cir. 2000)). This court does not sit

as a super-personnel department; our only concern with

respect to pretext is the honesty of an employer’s explana-

tion. Id.

Dyrek contends the deposition testimony of Dr. Liska

should be viewed as “an admission that the FAA was

on notice that Dyrek was controlling his diabetes.” The

testimony cited by Dyrek deals with the guidelines set

out in MGL-B-5a-0026 regarding A1C test results. Dr.

Liska testified that, according to MGL-B-5a-0026, A1C

values of twelve percent or higher indicate uncon-

trolled diabetes. Counsel for Dyrek asked Dr. Liska wheth-

er Dyrek ever reported an A1C result with a value of

twelve percent or higher to which Dr. Liska replied, “Not

to my knowledge.” This is far from an admission that

Dyrek was controlling his diabetes. As was made clear

from the numerous memos sent to Dyrek by the FAA,

A1C test results were just one component of the compre-

hensive medical information documenting control that

was requested. The FAA also requested results from a

general physical examination, a detailed report of Dyrek’s

insulin dosages and diet, verification that Dyrek had

been educated in diabetes and its control and was will-

ing and able to properly monitor and manage his diabe-

tes, and a statement by Dyrek’s specialist as to whether

his diabetes would adversely affect his ability to safely

control air traffic.

16 No. 01-3533

When asked at oral argument why Dyrek failed to pro-

vide the FAA with the requested documentation, counsel

for Dyrek stated it was his belief that Dyrek’s February

2000 submissions were sufficient to satisfy the FAA’s

request for a medical report. However, an examination of

those submissions, which are included in the record, shows

that they do not provide all of the information requested

by the FAA. The note from the Aurora Eye Clinic could

satisfy the request for confirmation by an ophthalmologist

of the absence of retinal disease. Dr. Bielski’s half-page

letter, however, while containing some of the requested

information, cannot be construed as a comprehensive

medical report. With respect to the blood sugar charts

for January and February 2000, Dr. Liska testified that

he was not able to interpret these charts and pointed out

specific portions of the charts that were unclear. Dyrek

was given many opportunities to provide specific docu-

mentation, yet he failed to do so. His February 2000

submissions came nearly one year after he had been

permanently medically disqualified and two months after

that disqualification was sustained on appeal by the

Federal Air Surgeon. The FAA nevertheless considered

the submissions in a second panel review. As the panel

noted, while the new submissions may indicate Dyrek’s

diabetes was under control at that point, there is nothing

to demonstrate stable control over a period of time.

Dyrek further contends his case of discrimination is

bolstered by the fact he was not given another position

within the FAA that did not require a medical clearance.

We first address Dyrek’s contention that “the position [he]

held at the time he was fired” did not require a medical

clearance. It is undisputed that the air traffic controller

position requires a valid medical clearance. While “A-side

duties” may be performed without a valid medical clear-

ance, the record evidence clearly shows at the time Dyrek

was terminated there was not a separate “A-side position”

No. 01-3533 17

within the FAA. Furthermore, Dyrek concedes his assign-

ment to another position was dependant upon the exis-

tence of a vacancy in a position that did not require a

medical clearance, yet in his briefs on appeal he points to

no evidence that could show such a vacancy existed at

the time he made his request for an alternate assign-

ment. At oral argument, counsel for Dyrek, without cita-

tion to the record, stated there was an open Quality As-

surance position at the time Dyrek requested reassign-

ment. A review of the record does not support this asser-

tion. Ralph Davis, in his deposition, testified that, at the

time of Dyrek’s request, there were positions at the Chicago

center for which Dyrek was qualified, including Regional

Specialists, Quality Assurance, and Instructors, that did

not require medical clearance. However, Davis clearly

testified that in March 2000 there were no vacancies in

these positions at the Chicago center. Viewed in the light

most favorable to Dyrek, there is no evidence from which

a reasonable trier of fact could conclude the FAA’s prof-

fered reason for Dyrek’s termination was pretextual. The

district court’s grant of summary judgment is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-20-03