Pueschel v. Peters , 340 F. App'x 858 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1178
DEBORAH KATZ PUESCHEL,
Plaintiff - Appellant,
v.
MARY E. PETERS, Secretary, United States
Department of Transportation,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, United
States District Judge. (1:01-cv-01471-GBL-TCB)
Argued: May 14, 2009 Decided: August 12, 2009
Before MICHAEL, KING and GREGORY, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Michael and Judge King joined.
ARGUED: George Michael Chuzi, KALIJARVI, CHUZI & NEWMAN, PC,
Washington, D.C., for Appellant. Lauren Anne Wetzler, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Chuck Rosenberg, United States Attorney, Ralph Andrew
Price, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
Deborah Katz Pueschel has filed several employment
discrimination lawsuits against the Federal Aviation
Administration (“FAA”) in the last thirty years. In the case at
bar, Pueschel claims 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), by,
inter alia, interfering with the processing of her workers’
compensation. The district court dismissed the complaint on res
judicata grounds, finding that all of her claims had already
been raised in a similar complaint adjudicated in 1997. When
Pueschel appealed, this Court affirmed in part but reversed with
respect to her claim that the FAA interfered with her
application to the Office of Workers’ Compensation Programs
(“OWCP”). Pueschel v. United States (Pueschel II), 369 F.3d 345(4th Cir. 2004). On remand, the district court granted summary
judgment to the Secretary of Transportation (“Secretary”) on the
remaining OWCP claim.
On the second appeal, this Court affirmed in part but
remanded for further exploration of the FAA’s alleged
interference with Pueschel’s ability to obtain OWCP benefits
between April and August 1992. Pueschel v. Mineta, No. 06-1305,
2007 WL 1290896 (4th Cir. May 2, 2007). On the second remand,
the district court granted summary judgment to the Secretary,
2
finding that Pueschel failed to exhaust her administrative
remedies. For the reasons stated herein, we affirm.
I.
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 subsequently
assigned to the Washington Air Route Traffic Control Center. In
the late 1970s, Pueschel began seeking workers’ compensation
benefits from the OWCP. In 1982, she submitted a claim for
anxiety disorder, fatigue, and asthma, which she claimed were
the result of sexual harassment she experienced in the
workplace. In 1992, the OWCP accepted Pueschel’s claim for
workplace illness. Pueschel blames both the FAA and the
Department of Labor for the nearly ten-year delay in the OWCP
accepting her claim.
In 1995, Pueschel filed an action alleging that FAA
personnel, including Personnel Specialist Patricia Carey,
interfered with the processing of her OWCP claims by refusing to
assist her in compiling a list of the leave that she had taken.
She further asserted that FAA personnel had destroyed her time
and attendance records in order to make it difficult for her to
3
apply for buy-back leave. 1 The district court granted the
Secretary’s motion for summary judgment, and this Court
affirmed. See Pueschel v. Slater (Pueschel I), No. 97-2503, 173
F.3d 425 (4th Cir. Feb. 18, 1999) (table) (per curiam).
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 retaliated against her by interfering with the
processing of her OWCP workers’ compensation claims. The
Secretary moved for dismissal arguing that Pueschel’s claims
were barred by the preclusive effect of Pueschel I. The
district court granted the motion to dismiss, finding that
Pueschel’s claims were in fact barred by the preclusive effect
of Pueschel I. On appeal, this Court affirmed in part and
reversed in part, finding that although res judicata barred
litigation of one element of Pueschel’s claim, the OWCP claims
were not barred. See Pueschel II, 369 F.3d 345. This Court
remanded the claim of OWCP interference for further proceedings.
On remand, the Secretary moved to dismiss for failure to
state a claim and for lack of subject matter jurisdiction. The
district court granted the motion. Pueschel appealed, stating
1
Federal employees who suffer work-related injuries or
illnesses and are unable to report for duty may apply to the
OWCP to have their sick and annual leave restored. This is
called “buying back” leave.
4
that her allegations of OWCP interference beginning in August
1992 and continuing through April 1994 had not yet been
litigated. This Court reversed in part and remanded for the
limited purpose of deciding whether the FAA interfered with
Pueschel’s OWCP claim in a retaliatory manner within the period
of April 1992 through August 1992.
On remand, the Secretary moved for summary judgment,
arguing that Pueschel failed to exhaust her administrative
remedies regarding this claim. The district court granted the
motion, but also concluded that even if Pueschel had exhausted
all of her administrative remedies, she could not prevail
because the FAA had no duty to assist in her compilation of time
and attendance records for the purpose of obtaining her buy-back
leave. Pueschel timely appealed.
II.
This Court reviews a district court’s decision to grant
summary judgment de novo. Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en banc).
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). However, even when all evidence is viewed in the light
most favorable to the nonmoving party, the nonmoving party
5
cannot defeat a properly supported summary judgment motion
without presenting “significant probative evidence.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (internal
quotation omitted).
III.
The district court granted the FAA’s motion for summary
judgment on the ground that Pueschel failed to exhaust her
administrative remedies. The court found that Pueschel failed
to include in her EEO complaint the allegation that FAA
Personnel Specialist Patricia Carey was motivated by retaliatory
animus when she refused to compile Pueschel’s time and
attendance records or create a list of the leave that Pueschel
had taken since January 1980. 2 In light of the requirement for a
factual nexus between a civil complaint and an administrative
charge, the district court held that Pueschel was precluded from
litigating her claim. See Bryant v. Bell Atl. Md., Inc., 288
F.3d 124, 132 (4th Cir. 2002) (holding that an administrative
charge “defines the scope of the plaintiff’s right to institute
a civil suit”); cf. Chisholm v. U.S. Postal Serv., 665 F.2d 482,
491 (4th Cir. 1981) (“An administrative charge of discrimination
does not strictly limit a Title VII suit which may follow;
2
The name “Patricia Carey” is never mentioned in Pueschel’s
administrative EEO complaint.
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rather, the scope of the civil action is confined only by the
scope of the administrative investigation that can reasonably be
expected to follow the charge of discrimination.”).
Whatever the merits of the FAA’s exhaustion argument, we
find that it was waived when the FAA failed to raise the
argument in its original motion to dismiss. “The Supreme Court
has indicated that a statute requiring plaintiffs to exhaust
administrative remedies before coming into federal court may be
either jurisdictional in nature or non jurisdictional . . . .”
Ace Prop. & Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992,
996 (8th Cir. 2006) (citing Weinberger v. Salfi, 442 U.S. 749(1975)). Exhaustion of administrative remedies prior to
bringing a Title VII action is not a jurisdictional requirement.
Edelman v. Lynchburg Coll., 300 F.3d 400, 403-04 (4th Cir.
2002); Zografov v. V.A. Med. Ctr., 779 F.2d 967, 969 (4th Cir.
1985); Aronberg v. Walters, 755 F.2d 1114, 1116 (4th Cir. 1985).
Because an exhaustion defense is not jurisdictional, it can be
waived. Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004)
(holding that an exhaustion defense can be waived by failing to
raise it). Therefore, we must reach the merits of Pueschel’s
claims.
IV.
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In addition to granting the FAA’s summary judgment motion
on exhaustion grounds, the district court granted summary
judgment on the merits of Pueschel’s retaliation claim. Claims
of retaliation are subject to the McDonnell-Douglas Corp. v.
Green, 411 U.S. 792 (1973), burden-shifting analysis. See King
v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003). 3 In order to
establish a prima facie case of retaliation, a plaintiff must
show that: 1) she engaged in a protected activity; 2) the
employer took a materially adverse action against her; and 3)
there is a causal connection between the protected activity and
the adverse action. Id.The district court found that Pueschel failed to meet the
second element of the retaliation claim because refusal to
assist in the compilation of the information necessary to apply
for “buy back” leave is not a “materially adverse” action. See
James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th
Cir. 2004) (requiring plaintiff to demonstrate “significant
detriment[]” to the terms, conditions, or benefits of
employment) (internal quotation omitted)). Pueschel argues that
the conduct she alleges is materially adverse because a
3
Once a plaintiff has made out a prima facie case, the
burden shifts to the defendant to offer a legitimate non-
retaliatory reason for its actions. See King, 328 F.3d at 150-
51. If the defendant is able to do this, the burden shifts back
to the plaintiff to prove that the reason offered was a pretext
for retaliation. Id.8
reasonable person would have been deterred from engaging in
protected activity if he or she knew in advance that the FAA’s
response to such activity would be to deny assistance in
completing the complicated prerequisites to process an
application for buy-back leave. See Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 67-68 (2006) (“In our view, a
plaintiff must show that a reasonable employee would have found
the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.”) (internal
citation and quotation marks omitted)). 4
Yet, Pueschel does not demonstrate that the alleged conduct
would have deterred a reasonable person from engaging in
protected activity. To begin, Pueschel does not cite any
statute, policy, or regulation to indicate that she is entitled
to the type of detailed assistance she requested. Further,
there is no indication that Pueschel was entitled to buy-back
leave. Even if the FAA had acted with the utmost speed in
assisting Pueschel in the compilation of her records, there is
no guarantee that she would have been granted all or any of the
4
The FAA argues that Burlington Northern does not extend to
retaliation claims by federal employees. We need not address
this argument because, assuming arguendo that Burlington
Northern does apply, Pueschel still cannot establish a prima
facie case.
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leave she requested. Moreover, there is evidence in the record
that Pueschel already had in her possession copies of her time
and attendance records. As the Supreme Court notes in
Burlington Northern, when we consider materially adverse action,
“it is important to separate significant from trivial harms.”
Id. at 68. We are not convinced that the adversity at issue
here was material, given that we do not believe that Pueschel
was entitled to the type of assistance or leave that she
requested. Therefore, we find that Pueschel cannot establish a
prima facie case.
V.
Although, we find that the FAA waived its exhaustion
defense, we agree with the district court that Pueschel’s
retaliation claim fails on the merits because she cannot
establish a prima facie claim of retaliation.
AFFIRMED
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