Pueschel v. Peters

• Decision Date: 18 August 2009
• Docket Number: No. 08-1351.,08-1351.
• Citation: 577 F.3d 558
• Parties: Deborah Katz PUESCHEL, Plaintiff-Appellant, v. Mary E. PETERS, in her official capacity as Acting Secretary, U.S. Department of Transportation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

577 F.3d 558

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.

Argued May 14, 2009.

Decided August 18, 2009.

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 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 the complaint, finding that Pueschel's claims were barred by the preclusive effect of Pueschel v. Slater, 173 F.3d 425 (4th Cir.1999). On appeal, this Court affirmed in part and reversed in part, finding that although res judicata barred litigation of part of Pueschel's claim, the OWCP claims were not barred. See Pueschel v. United States, 369 F.3d 345 (4th Cir.2004). On remand, the district court granted the FAA's motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction. On the second appeal, this Court reversed in part, holding that Pueschel could pursue her claim of interference, but that it was limited to the period of April 1992 through August 1992. Pueschel v. Mineta, 241 Fed.Appx. 71 (4th Cir.2007). On remand, the district court dismissed the remainder of Pueschel's 1992 complaint. Pueschel has appealed that decision in a separate case currently before this Court. See Pueschel v. Peters, ___ Fed.Appx. ___, No. 08-1178, 2009 WL 2461862 (4th Cir. Aug. 12, 2009).

B.

One of Pueschel's cases, Pueschel v. Dep't of Transp., No. 02-3261 (Fed.Cir. June 5, 2003), is of particular importance to the instant litigation. In response to her termination, Pueschel filed an EEO complaint, claiming that her termination was motivated by discrimination and retaliation. Further, she claimed that the FAA committed harmful procedural errors by failing to allow her to "buy back" 3,000 hours of leave.¹ According to Pueschel, the FAA could not have terminated her employment because if the FAA had allowed her to buy back 3,000 hours, then her four-year absence would have been accounted for and she would not have been in LWOP status. Pueschel's allegations were transferred to the MSPB for processing, where an MSPB administrative judge conducted a hearing and affirmed the FAA's decision to remove Pueschel. This decision was later affirmed by the Federal Circuit. Pueschel v. Dep't of Transp., No. 02-3261 (Fed. Cir. June 5, 2003).

The present litigation arises from four EEO complaints that Pueschel filed between 1997 and 1999, which were consolidated before the Equal Employment Opportunity Commission. These complaints allege that Pueschel was subjected to gender and disability-based discrimination and retaliation when the FAA interfered with her OWCP application to buy back 3,000 hours of leave, and that she was subjected to a hostile work environment in 1997 and 1998.

On January 25, 2008, the district court held a hearing on the FAA's motion for summary judgment. The district court granted the motion, finding that Pueschel waived her claim regarding FAA interference with her OWCP application because she raised the claim as an affirmative defense to her termination in proceedings before the MSPB and appealed to the Federal Circuit rather than bringing the case as a "mixed case" in a federal district court. Further, the district court found that even if the claim had not been waived, Pueschel could not prevail on the merits because she failed to identify any specific behavior that constituted intentional interference with her OWCP claim in 1997 or 1998.

As for the hostile work environment claim, the district court found that Pueschel failed to establish that she was subjected to a hostile work environment. The court reasoned that, inter alia, Pueschel's allegations did not support her hostile work environment claim because she could not show that the actions occurred because of her gender, disability, or protected activity. Pueschel timely appeals.

II.

This Court reviews a district court's decision to grant summary judgment de novo, applying the same legal standards as the district court. Nader v. Blair, 549 F.3d 953, 958 (4th Cir.2008). Further, this Court "view[s] all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party." Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 603 (4th Cir.2002).

III.

A.

The first issue on appeal is whether Pueschel waived her Title VII OWCP claim by appealing her MSPB claim to the Federal Circuit. A federal employee who asserts both discrimination in violation of Title VII and an "adverse employment action" asserts a "mixed case" for which relief may be sought by filing a "mixed case complaint" with her employing agency's EEO office or by filing a "mixed case appeal" directly to the MSPB. See 5 U.S.C. § 7702 (2006); 29 C.F.R. § 1614.302(b) (2008); McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir.1995). The employee may appeal an MSPB decision to either the U.S. Court of Appeals for the Federal Circuit or the appropriate federal district court. See 5 U.S.C. § 7703 (2006). If the...