577 F.3d 558 (4th Cir. 2009), 08-1351, Pueschel v. Peters

Docket Nº:08-1351.
Citation:577 F.3d 558
Opinion Judge:GREGORY, Circuit Judge:
Party Name:Deborah Katz PUESCHEL, Plaintiff-Appellant, v. Mary E. PETERS, in her official capacity as Acting Secretary, U.S. Department of Transportation, Defendant-Appellee.
Attorney:George Michael Chuzi, Kalijarvi, Chuzi & Newman, PC, Washington, DC, for Appellant. Lauren Anne Wetzler, Office of the United States Attorney, Alexandria, Virginia, for Appellee. Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.
Judge Panel:Before MICHAEL, KING and GREGORY, Circuit Judges. Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge MICHAEL and Judge KING joined.
Case Date:August 18, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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577 F.3d 558 (4th Cir. 2009)

Deborah Katz PUESCHEL, Plaintiff-Appellant,

v.

Mary E. PETERS, in her official capacity as Acting Secretary, U.S. Department of Transportation, Defendant-Appellee.

No. 08-1351.

United States Court of Appeals, Fourth Circuit.

August 18, 2009

Argued May 14, 2009.

Page 559

[Copyrighted Material Omitted]

Page 560

ARGUED:

George Michael Chuzi, Kalijarvi, Chuzi & Newman, PC, Washington, DC, for Appellant.

Lauren Anne Wetzler, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

ON BRIEF:

Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.

Before MICHAEL, KING and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge MICHAEL and Judge KING joined.

OPINION

GREGORY, Circuit Judge:

This is Deborah Katz Pueschel's fifth employment discrimination lawsuit against the Federal Aviation Administration (" FAA" ) and her fourth lawsuit against the FAA, alleging interference with her application for workers' compensation benefits from the Office of Workers' Compensation Programs (" OWCP" ). In addition to alleging interference, she claims that the FAA created a hostile work environment during her employment. Pueschel argues that the FAA violated Title VII of the Civil Rights Act of 1965, 42 U.S.C. § 2000e-16 (2006), and the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (2006), alleging discrimination based on gender and disability, as well as retaliation for prior protected activity.

The district court granted summary judgment in favor of the Secretary of Transportation (" Secretary" ) as to both of these claims, finding that Pueschel had waived her OWCP interference claim by choosing to litigate the same facts before the U.S. Court of Appeals for the Federal Circuit. Further, the district court found that her claim failed on the merits because

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she could neither demonstrate that the FAA actually interfered with her application, nor prove that the FAA did so based on a discriminatory or retaliatory animus. Finally, the district court found that Pueschel could not prevail on her hostile work environment claim because she failed to demonstrate that the alleged conduct occurred as a result of her gender, disability, or protected activity, and because the alleged conduct did not rise to the level of pervasive or severe harassment. For the reasons stated herein, we affirm.

I.

A.

Pueschel entered the air traffic controller program in 1974 and later became an air traffic controller in the Leesburg, Virginia, Air Traffic Control Center. She was assigned to the Washington Air Route Traffic Control Center, but was removed from her FAA position, effective September 14, 1981, for her alleged participation in a strike against the FAA. She appealed her firing to the Merit Systems Protection Board (" MSPB" ), which ordered the FAA to reinstate her and give her back pay. Katz v. Dep't of Transp., 17 M.S.P.R. 303 (1983).

On June 9, 1981, she filed a complaint against the FAA in the U.S. District Court for the Eastern District of Virginia, alleging gender-based discrimination and sexual harassment in violation of Title VII. Following a bench trial, the district court ruled in favor of the FAA. This Court affirmed in part and reversed in part, finding that discrimination did not motivate the personnel action, but that Pueschel had been subjected to a hostile work environment. Katz v. Dole, 709 F.2d 251, 257 (4th Cir.1983).

On April 20, 1994, Pueschel filed an Equal Employment Opportunity (" EEO" ) complaint alleging, among other things, that FAA personnel intentionally interfered with her workers' compensation claims by not processing the proper paperwork for submission to the OWCP and by refusing to assist her in compiling her time and attendance records. After exhausting her administrative remedies, Pueschel brought her case to federal court where the district court entered summary judgment in favor of the FAA. She appealed the decision to this Court, which affirmed the district court. Pueschel v. Slater, No. 97-2503, 173 F.3d 425 (4th Cir. Feb.18, 1999) (table) (per curiam).

On April 5, 1994, while a claim she filed with the EEOC in 1992 was being processed, Pueschel alleges that she suffered a stress-related episode at work that caused her to leave work permanently. The FAA, on the other hand, characterizes this incident quite differently. According to the FAA, Pueschel had a dispute with FAA management and her union representatives about a possible change in her work schedule, which resulted in her walking off the job and never returning. Further, the FAA claims that Pueschel attempted to justify her abrupt exit from work and her subsequent four-and-a-half-year absence by submitting documentation from her physician that she was " NOT released for ANY work at this time and until further notice." (J.A. 84.) Upon review of the medical documents, the FAA placed Pueschel on Leave Without Pay (" LWOP" ). She remained on LWOP until her termination in January 1999, when she was terminated for medical inability to perform her duties.

In 2001, Pueschel brought a discrimination suit in the Eastern District of Virginia, claiming both that the FAA denied her various awards and opportunities for advancement and that the FAA interfered with the processing of her OWCP workers' compensation claims. The district court dismissed...

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