Pueschel v. U.S.

• Decision Date: 14 May 2004
• Docket Number: No. 03-1005.,No. 03-1006.,03-1005.,03-1006.
• Citation: 369 F.3d 345
• Parties: Deborah Katz PUESCHEL, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Deborah Katz Pueschel, Plaintiff-Appellant, v. Norman Y. Mineta, Secretary, United States Department of Transportation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

369 F.3d 345

Deborah Katz PUESCHEL, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Deborah Katz Pueschel, Plaintiff-Appellant, v. Norman Y. Mineta, Secretary, United States Department of Transportation, Defendant-Appellee.

No. 03-1005.

No. 03-1006.

United States Court of Appeals, Fourth Circuit.

Argued: January 20, 2004.

Decided: May 14, 2004.

COPYRIGHT MATERIAL OMITTED

ARGUED: George Michael Chuzi, Kalijarvi, Chuzi & Newman, P.C., Washington, D.C., for Appellant. Dennis Edward Szybala, Assistant United States Attorney, Alexandria, Virginia, for Appellees. ON BRIEF: Mary Madeline McCarthy, Office of Regional, Federal Aviation Administration, Jamaica, New York; Paul J. McNulty, United States Attorney, Alexandria, Virginia, for Appellees.

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge WILKINSON and Judge SHEDD joined.

OPINION

GREGORY, Circuit Judge:

Deborah Katz Pueschel, a former air traffic controller ("ATC"), appeals from two separate judgments of the United States District Court for the Eastern District of Virginia dismissing her respective causes of action against the Federal Aviation Administration ("FAA") and Secretary of Transportation. Pueschel brought suit against the FAA under the Federal Tort Claims Act ("FTCA") alleging that the FAA negligently and intentionally caused her to suffer severe emotional distress and exacerbated her preexisting work disability by subjecting her to a hostile workplace, sexual harassment and retaliation for filing complaints about her work environment (hereinafter "FTCA suit"). Pueschel also sued the Secretary of Transportation alleging that the FAA, an agency within the Department of Transportation, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act, 29 U.S.C. § 791 et seq., by failing to provide her equal access to employment opportunities and awards and by interfering with the processing of her disability claims filed with the Office of Workers' Compensation Programs (hereinafter "OWCP claim") because of her gender, work disability and in retaliation for filing complaints about her work environment (hereinafter "Title VII suit").

On October 1, 2002, Judge Hilton dismissed Pueschel's FTCA suit on the bases that it (1) should have been brought under Title VII, which provides federal employees their exclusive remedies for employment discrimination, rather than the FTCA; (2) was barred, even if properly brought under Title VII, by the doctrine of res judicata because in a prior Title VII action brought by Pueschel the FAA was found not to have discriminated against her on the basis of her gender and work disability or to have retaliated against her for filing prior complaints; and (3) failed to state a claim in light of the fact that Virginia employers do not have a common law duty to ensure that their employees are not subjected to sexual harassment and retaliation. On November 6, 2002, Judge Wexler dismissed Pueschel's Title VII suit on the basis that Judge Hilton's decision, specifically his conclusion that Pueschel was precluded from bringing a Title VII action asserting discrimination and retaliation claims arising out of her FAA employment, barred her Title VII suit under the doctrine of res judicata.

On appeal, Pueschel argues that Judge Hilton erred by dismissing her FTCA suit on res judicata grounds. She also argues that Judge Hilton abused his discretion by failing to construe the FAA's motion to dismiss, to which the FAA attached a binder of exhibits, as a motion for summary judgment. Pueschel further contends that she was not afforded an opportunity to respond to the FAA's motion to dismiss her FTCA suit because the district court did not hold a hearing prior to ruling on the FAA's motion. Moreover, Pueschel argues that Judge Hilton abused his discretion by denying her motion to stay the proceedings and transfer her FTCA suit to Florida, where she presently resides. Lastly, Pueschel argues that Judge Wexler erred by concluding that her Title VII suit was barred by Judge Hilton's dismissal of her FTCA suit.

With regard to Pueschel's FTCA suit, we hold that it was properly dismissed on preemption grounds given that Title VII establishes the exclusive and preemptive scheme under which federal employees can seek redress for employment discrimination. Because Pueschel failed to respond to the FAA's motion to dismiss, we hold that her argument that the FAA's motion to dismiss should have been treated as one for summary judgment is of no moment. Irrespective of whether the motion was treated as one for dismissal or summary judgment, Pueschel had eleven days under the district court's local rules to respond and failed to do so. We further hold that Pueschel's argument that she was not afforded an opportunity to respond to the FAA's motion to dismiss is without merit because there is no requirement that a district judge hold a hearing prior to ruling on such a motion. Lastly, we hold that the denial of her motion to stay and transfer her FTCA suit did not constitute an abuse of discretion.

With regard to Pueschel's Title VII suit, we hold that her claim that the FAA did not provide her equal access to employment opportunities and awards because of her gender, work disability and in retaliation for filing prior complaints is precluded by the doctrine of res judicata. We also hold, however, that her OWCP claim — which alleges that the FAA's interference with the processing of her workers' compensation claims has resulted in her benefits being improperly taxed — is not precluded. Although Pueschel asserted in a prior Title VII action that the FAA was interfering with the processing of her workers' compensation claims, the FAA in effect agreed to "split" Pueschel's OWCP claim from that Title VII action by informing the court that this claim was asserted in another complaint, which has now become Pueschel's present Title VII suit, and thus not part of that suit. We therefore reverse this part of the judgment dismissing Pueschel's Title VII suit and remand for further proceedings.

I.

In 1974, Pueschel became one of the first women to enter the ATC program and was soon thereafter assigned to the Washington Air Traffic Center in Leesburg, Virginia. On September 14, 1981, however, the FAA, pursuant to an Executive Order issued by President Reagan, terminated Pueschel and approximately 1,400 other ATCs for allegedly engaging in an illegal strike against the FAA. Prior to being terminated, however, Pueschel commenced an action against the Secretary of Transportation in the United States District Court for the District of Columbia alleging that she had been subjected to sexual harassment and to disparate and adverse personnel actions amounting to gender discrimination in violation of Title VII. Because these alleged incidents occurred in Virginia, Pueschel's suit was transferred to the United States District Court for the Eastern District of Virginia where, after a bench trial, judgment was entered against her. On appeal, we reversed in part and affirmed in part. Katz v. Dole, 709 F.2d 251, 253 (4th Cir.1983). Specifically, we held that Pueschel had made "out a case of sexual harassment actionable under Title VII but [found] no error in the district court's handling of [her] disparate treatment claim." Id. On remand, the district court entered an order enjoining the FAA from engaging in conduct that caused, encouraged or condoned the sexual harassment of Pueschel.

In addition to her Title VII action, Pueschel commenced an administrative action against the FAA challenging her dismissal for allegedly participating in an illegal strike against the FAA. Katz v. FAA, 17 M.S.P.R. 303 (1983). Pueschel contended that she had been improperly terminated because her absence from work was due to physical and mental health reasons rather than participation in the strike. Id. at 306. The Merit System Protection Board ("MSPB") ruled in favor of Pueschel, noting that her history of physical and mental health problems was sufficient evidence to rebut the FAA's presumption that she missed work to participate in the strike. Id. at 306-10. Pursuant to the MSPB's ruling, Pueschel was reinstated as an ATC and awarded back pay and attorney's fees.

After her reinstatement in January 1984, Pueschel was assigned a regular shift during which air traffic is lower, even though ATCs are not generally assigned regular shifts, because she suffers from asthma, fibromyalgia, anxiety, sacroidosis and edema — conditions aggravated by stress and fatigue. On August 18, 1992, however, Pueschel filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that she was "being treated differently because she is female, has a job related handicap, has filled [sic] EEO Complaints, and testified before congress [sic]" and that "her career [had] not progressed normally and her PER's [Performance Evaluation Ratings] have suffered because she has been labeled a trouble maker ... [and that] her peers ... received promotions, details, and awards and she [had] not been allowed to demonstrate her abilities to qualify for promotions and awards." J.A. 109. Pueschel also alleged that her workers' compensation benefits were improperly taxed as a result of the FAA's interference with the processing of her claims. Id. at 115. After the FAA investigated and denied her claims, Pueschel requested a hearing before the EEOC, which was scheduled for May 11, 1994.

On April 5, 1994, however, Pueschel suffered a stress-related episode after a team comprised of FAA and ATC union representatives approached her about the possibility of altering her work schedule. As a result of this stress-related episode, Pueschel took a sick leave from work and has not returned to her employment with the FAA. On April 6...