Bellino, Joseph M. v. Peters, Mary E.

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