David J. Dickman, Plaintiff,
Ray LaHood, Secretary of the Department of Transportation, Defendant.
MEMORANDUM AND ORDER
In 2008, David Dickman applied for an advertised position with the Federal Aviation Administration at its Olathe, Kansas facility. The FAA had previously determined that Dickman, who lives in Willis, Kansas and would have to spend nearly four hours on the road each day, was ineligible for the position under its requirement that job applicants live within a reasonable distance. Dickman, who had previously instituted a variety of legal claims against the FAA, brought the present action against the Secretary of Transportation, arguing that the FAA discriminated against him on the basis of disability, and that it retaliated against him for his other employment actions.
Dickman has since abandoned the disability claim, and now advances only the retaliation claim. The defendant has moved for summary judgment, which the court grants for the reasons provided herein.
Findings of Fact
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show 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). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Findings of Fact
The FAA is responsible for the safe and efficient operation of air traffic in the United States and prides itself on being a world leader in its field. Its mission is to “provide the safest, most efficient aerospace system in the world, ” and the Agency “strive[s] to reach the next level of safety, efficiency, environmental responsibility and global leadership.” The FAA employs some 44, 000 people across the nation.
Dickman was formerly employed by the FAA, but voluntarily re Dated: December 17, 2004, when the FAA denied his request for a hardship transfer. After his resignation, Dickman has applied, or thought he applied, for at least four jobs with the FAA—two positions in 2007 and two positions in July 2008. He was not selected for any of those positions by the FAA.
Including the present case, Dickman has commenced at least three EEOC administrative claims against the FAA. He failed in each of those claims at the administrative level. While Dickman has testified that this case is his second lawsuit against the FAA, it is actually his third. In Dickman v. Peters, Case No. 07-02562-JAR (Dickman I), Dickman alleged that he was subjected to disability discrimination by FAA human resources specialist DeAngela Hightower. Judge Robinson ultimately granted the FAA’s motion for summary judgment, finding that the Dickman had failed to prove his claim that the FAA had denied his job application as a pretext for disability discrimination.
In 2007, Dickman applied for two FAA positions at the Air Route Traffic Control Center (ARTCC) in Olathe, Kansas. The first (ACE-ATO-08-025-100041) was only open to current FAA employees. The second (ACE-ATO-08-047-100650) was open to applicants in the local community area.
It is uncontroverted that in 2007, Dickman lived in Willis, Kansas, and was not a current FAA employee. Willis, which is near Hiawatha, Kansas, is 69 miles from the ARTCC “as the crow flies.” There is, of course, no road running directly between Dickman’s residence and the ARTCC.
The FAA states that, according to Mapquest, the shortest distance between Willis and the ARTCC is 90.81miles, a route takes 2 hours and 2 minutes to travel. Mapquest also indicates a slightly longer route of 95.32 miles, which could be traveled in 1 hour and 55 minutes.
In his response to the defendant’s motion, Dickman states that he has been able to drive the distance in 1 hour and 35 minutes. He does not describe which route he took, and there is no indication that Dickman mentioned this feat to the FAA in the course of its eligibility assessment. In a prior affidavit, Dickman stated: “I lived over 100 miles from Olathe, though I told HR that I would move to my sister’s home, which is 20 miles away.”
It is uncontroverted that Danny Sadler, a Manager in the FAA’s Employment Services Branch, decided that Dickman was ineligible for the first position because he was not a current FAA employee, and ineligible for the second, because he lived outside the commuting area.
After Sadler’s determination, Dickman called FAA human resource specialist, Terri Craddock-Moore. According to Dickman, Craddock-Moore told him that the commuting area was “about 100 miles.” There is no evidence that Craddock-Moore, a subordinate of Sadler, was authorized to set FAA policy. Craddock-Moore initially believed that Dickman lived outside the commuting area, and she had no knowledge of his 2007 job applications.
Sadler believed that Dickman lived about 120 miles away.
When he determined that Dickman lived outside of the commuting area, Dickman’s last prior EEOC activity known to Sadler was two years old.
Dickman had contacted Sadler, Hightower’s supervisor, to the decision. Sadler sent Dickman a letter on February 4, 2008, explaining that Dickman was not job eligible because he lived outside the commuting area.
On February 7, 2008, Dickman sent an email to Sadler asking for reconsideration by the FAA of his ineligibility. He wrote to propose a hypothetical change to a closer location:
Note: I am requesting reconsideration for disqualification [sic] due to area of consideration as reason since I would reside at 16236 150th St. Bonner Spring [sic], KS 66012 which is my Brother Inlaw’s [sic] and Sisters [sic] home and then reside on my days off at 148 Hudson ST., Willis KS 66434.
In a letter dated February 25, 2008, Sadler denied Dickman’s request. Sadler wrote:
Based on the aforementioned review and consideration, it has been determined that the available evidence supports the initial determination of lack of eligibility, ... i.e., you are not within the commuting area of the position. The commuting area is defined as one or more population centers in which people live and can reasonably be expected to travel back and forth daily to their usual place of employment.
Dickman filed an EEOC complaint alleging disability discrimination and retaliation against the FAA, challenging its determination that he was not eligible for the two jobs described in the announcements. He contended that his requests for “reasonable accommodation” were denied by the FAA on the basis of disability discrimination and retaliation for his prior EEOC activity.
During the EEOC investigation, Sadler provided an affidavit supplying written answers to a series of questions. In pertinent part, Sadler’s affidavit states:
Q: Did Mr. Dickman's physical condition and/or his prior EEO activity have a bearing on the decisions to disqualify him for the positions he has applied for? If yes, explain.
Q: Was Mr. Dickman's name placed on the Selection Certificates that were submitted to the Selecting official(s) for selection consideration?
A: Mr. Dickman's name was not referred to the Selecting Official for selection consideration since he was determined ineligible.
Q: lf his name was not referred for selection consideration, give the reason why not.
A: I supervise the HR Specialists who administer the rules established in the FAA Human Resource Policy Manual (HRPM) which are used in filling FAA positions. David Dickman's situation first came to my attention when l received a phone call from him after he'd been found ineligible. There are rules we must follow in processing employment applications such that applicants have to meet established eligibility and qualification requirements. These requirements are clearly identified in the respective vacancy announcement. Human Resource Specialists are accountable for upholding these rules. After hearing Mr. Dickman's concerns, I pulled the paperwork and found the HR Specialist had accurately processed his applications. In one instance, Mr. Dickman was found ineligible because he was not a current FAA employee, and that particular announcement was open only for consideration of current FAA employees. The other announcement was open only for consideration to applicants within the local commuting area. The HRPM defines the local commuting area as
[o]ne or more population centers in which people live and can reasonably be expected to travel back and forth daily to their usual place of employment.
Mr. Dickman's application contained an address which was, as I recall, approximately 120 miles away. We always use the address on the employment application to determine whether an applicant is within the commuting area. Mr. Dickman's offer to use an alternative address of a relative was made well after the announcement had closed and, as I recall, after a selection had already been made. I instructed Mr. Dickman that if he wanted us to consider another address in processing his application he should put that address on his application paperwork and submit it in accordance with the instructions on how to apply, which are always clearly indicated on the vacancy announcement. As for Mr. Dickman's request for a reasonable accommodation; reasonable accommodation in the context of announcement pertains to provisions the Agency makes enabling a person to apply for consideration when they otherwise are unable to do so. Mr. Dickman was clearly able to submit an employment application for both these announcements. The eligibility and qualification requirements used in filling FAA positions are consistently followed for all applicants, including 30% or more compensably disabled veterans.
Q: To the best of your knowledge, was Mr. Dickman treated any differently than others that were in the same or a similar situation as she was?
A: Mr. Dickman's physical disabilities and prior EEO activity were not factors we considered when making decisions relevant to him. He was treated no differently than any other ...