                             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
