Pueschel v. Nat'l Air Traffic

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________
)
DEBORAH KATZ PUESCHEL, )
)
Plaintiff, )
)
v. ) Civil Action No. 99-2556 (RWR)
)
NATIONAL AIR TRAFFIC )
CONTROLLERS ASSOCIATION, )
)
Defendant. )
____________________________ )
MEMORANDUM OPINION
Plaintiff Deborah Katz Pueschel filed this lawsuit against
her union, the National Air Traffic Controllers’ Association
(“NATCA”), alleging that NATCA violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. A memorandum
opinion and order issued on August 5, 2002 (“2002 Opinion”),
dismissed as untimely all of Pueschel’s claims except for her
claim that the union’s actions surrounding her termination
constituted unlawful retaliation. NATCA has moved for summary
judgment on Pueschel’s sole remaining claim. Because there are
no genuine issues of material fact in dispute and the defendant
is entitled to judgment as a matter of law, NATCA’s motion will
be granted.
BACKGROUND
The background of this case is discussed fully in the 2002
Opinion, and in Pueschel v. Nat’l Air Traffic Conrollers’ Ass’n,
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606 F. Supp. 2d 82, 83-84 (D.D.C. 2009). Briefly, Pueschel was
an air traffic controller with the Federal Aviation
Administration (“FAA”) and a member of NATCA. In early 1994,
Pueschel’s work schedule was changed against her wishes. She
asserts that the change resulted in a stress-induced reaction
that forced her to be absent from work on medical leave from
April 1994 through 1999.1 2002 Opinion at 2. (See Compl. ¶¶ 10-
12.)
On January 28, 1999, Pueschel learned that she had been
terminated as of January 15, 1999, because of her inability to
work as an air traffic controller. (Compl. ¶ 13; Pl.’s Opp’n to
Def.’s Mot. to Dismiss at 3, 9; see also Def.’s Mem. Ex. A,
Notice of Removal at 1.) Pueschel contacted an equal employment
opportunity (“EEO”) counselor on February 13, 1999, filed a
complaint of discrimination against NATCA with the Department of
Transportation on April 30, 1999, and filed a charge against
NATCA with the EEOC on May 30, 1999. (Compl. ¶¶ 16-17; see also
Pl’s Opp’n at 3; Def.’s Stmt. of Mat. Facts (“Def.’s Stmt.”)
¶ 6.) Pueschel filed her complaint in this case against NATCA in
September 1999, alleging that NATCA violated Title VII by
discriminating against her and retaliating against her, harassing
1
In 1997, she filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) against NATCA.
The EEOC dismissed her charge as untimely. Pueschel filed suit
against NATCA for the same violations, and that suit was
dismissed as untimely. Pueschel, 606 F. Supp. 2d at 84.
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her, failing to accommodate her, and by failing to prevent the
FAA from mistreating her. Pueschel, 606 F. Supp. 2d at 84. The
2002 opinion dismissed all of Pueschel’s claims except for her
claim that NATCA engaged in unlawful discrimination under Title
VII by causing or attempting to cause the FAA to retaliate
against her by terminating her employment. However, that opinion
also determined that Pueschel could bring claims only for
incidents of discrimination that occurred within 45 days of
February 13, 1999, and that the only incident alleged in her
complaint that occurred in that time frame was her termination.
2002 Opinion at 9, 12.
Pueschel moved in 2008 for reconsideration and clarification
of the portion of 2002 Opinion that held that she had not timely
alleged a hostile work environment claim. (See Pl’s Mot. to
Clarify at 1.) Her motion was denied in an opinion holding that
Pueschel failed to “provide any new evidence reflecting any
misunderstanding of [her hostile work environment] claim, or show
that the [2002 Opinion] was erroneous when it determined that the
previous incidents of discrimination of which she complains were
not sufficiently connected to events that occurred during the
limitations period to allow them to be part of a hostile work
environment claim.” Pueschel, 606 F. Supp. 2d at 85.
NATCA has moved for summary judgment, arguing that Pueschel
has not presented evidence that NATCA was responsible for her
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termination, or that NATCA engaged in any discriminatory conduct
within the relevant limitations period. (Def.’s Stmt. ¶ 7;
Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s Mem.”)
at 4-7.) Pueschel opposes, arguing that the previous opinions
erred by determining that Pueschel is limited to incidents that
occurred within 45 days of the date she contacted the EEO
counselor, and that the previous opinions erred by prohibiting
her from advancing her claim that she was subjected to a hostile
work environment. (Pl.’s Opp’n at 3-4.)
DISCUSSION
“Summary judgment may be appropriately granted when the
moving party demonstrates that there is no genuine issue as to
any material fact and that moving party is entitled to judgment
as a matter of law.” Bonaccorsy v. Dist. of Columbia, 685 F.
Supp. 2d 18, 22 (D.D.C. 2010) (citing Fed. R. Civ. P. 56(c)).
“In considering a motion for summary judgment, [a court is to
draw] all ‘justifiable inferences’ from the evidence . . . in
favor of the nonmovant.” Cruz-Packer v. Dist. of Columbia, 539
F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “However, a
non-moving party cannot defeat summary judgment by ‘simply
show[ing] that there is some metaphysical doubt as to the
material facts.’” Bonaccorsy, 685 F. Supp. 2d at 22 (quoting
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Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (quoting
Matsushita, 475 U.S. at 586)). “‘Briefs containing mere
allegations or merely denying the movant’s pleading are not
enough to prevent summary judgment; instead, a non-movant must go
beyond the pleadings to proffer specific facts rebutting the
movant’s assertions.’” Bonaccorsy, 685 F. Supp. 2d at 22(quoting Graham v. Holder, 657 F. Supp. 2d 210, 215 (D.D.C. 2009)
(citing Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007),
and Burke v. Gould, 286 F.3d 513, 517-18 (D.C. Cir. 2002)). “The
relevant inquiry ‘is the threshold inquiry of determining whether
there is a need for a trial - - whether, in other words, there
are any genuine factual issues that properly can be resolved only
by a finder of fact because they may reasonably be resolved in
favor of either party.’” Single Stick, Inc. v. Johanns, 601 F.
Supp. 2d 307, 312 (D.D.C. 2009) (quoting Anderson, 477 U.S. at
250). A court should determine that a genuine issue is present
in a case where the “evidence is such that a reasonable jury
could return a verdict for the non-moving party,” a situation
distinguishable from a case where the evidence is “so one-sided
that one party must prevail as a matter of law.” Anderson, 477
U.S. at 248, 252. “‘The possibility that a jury might speculate
in the plaintiff’s favor is insufficient to defeat summary
judgment.’” Pardo-Kronemann v. Donovan, 601 F.3d 599, 611 (D.C.
Cir. 2010) (affirming grant of summary judgment despite
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statements by the plaintiff’s supervisor that the adverse
employment action came from the administrative office where the
plaintiff “had some pretty powerful enemies,” because the
statements reflected a personal opinion insufficient for a
reasonable jury to conclude that the employer’s explanation was
pretext for retaliation) (quoting Haynes v. Williams, 392 F.3d
478, 485 (D.C. Cir. 2004).
Title VII provides that a labor organization such as NATCA
engages in an unlawful employment practice when it “cause[s] or
attempt[s] to cause” an employer to discriminate or retaliate
against an employee in violation of Title VII, or when the labor
organization discriminates against a member because she has
opposed an unlawful employment practice or because she “made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing” brought under Title VII.
See 42 U.S.C. 2000e-2(c), 42 U.S.C. 2000e-3. The 2002 Opinion
preserved Pueschel’s claim that NATCA caused or attempted to
cause the FAA to retaliate against her for protected activity2 by
terminating her employment. See 2002 Opinion at 8. To advance
her retaliation claim against NATCA, Pueschel “must show 1) that
she engaged in a statutorily protected activity; 2) that [the
2
Plaintiff’s complaint alleged that in 1983, a court found
in a lawsuit she filed that FAA supervisors committed sexual
harassment. The complaint also alleged she had submitted a
statement to Congress in 1997 regarding the FAA, NATCA, and her
experience of a hostile work environment. (Compl. ¶¶ 7, 9.)
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FAA] took an adverse personnel action; 3) that a casual
connection existed between the two,” and 4) “a causal connection
[existed] between the Union’s acts and her injuries.” Brown v.
Brody, 199 F.3d 446, 452 (D.C. Cir. 1999); Burke v. CWA Local
1109, No. 07-CV-3595, 2009 WL 3805517, at *3 (E.D.N.Y.,
November 12, 2009).
NATCA argues that judgment should be entered for it against
Pueschel’s complaint because Pueschel has not shown that the
Union bears any responsibility for the termination of her
employment by the FAA, and because all of the other purported
incidents of discrimination alleged by Pueschel are time barred.
The 2002 Opinion found that Pueschel was bound by the provisions
of 29 C.F.R. § 1614.105(a)(1), which require a federal employee
to notify an EEO counselor within 45 days of an alleged
discriminatory incident in order to timely pursue administrative
remedies as a prerequisite to filing a civil action. Pueschel
contacted her EEO counselor on February 13, 1999. (See 2002
Opinion at 10; Pl’s Opp’n at 3; Def.’s Stmt. ¶ 6.) Under the
2002 Opinion, then, her discrimination claim could include
incidents of discrimination that occurred on or after
December 30, 1998. However, Pueschel argues that the limitation
period in 29 C.F.R. § 1614.105(a)(1) should not apply because,
though Pueschel was a federal employee, she brought this action
against the union she belonged to, not against her employer.
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Therefore, Pueschel seeks to apply the 180-day limitation period
found in 42 U.S.C. 2000e-5(e)(1). (See Pl.’s Opp’n at 3.) That
provision states, in relevant part, “[a] charge under this
section shall be filed within one hundred and eighty days after
the alleged unlawful employment practice occurred[.]” 42 U.S.C.
2000e-5(e)(1); see also Carter v. Wash. Metro. Area Transit
Auth., 503 F.3d 143, 145 (D.C. Cir. 2007). Pueschel filed her
charge of discrimination with the EEOC on May 30, 1999, meaning
that if her method of calculation were used, her complaint could
incorporate incidents of discrimination that occurred after
December 1, 1998.
While at least one opinion in this district has applied the
limitations period found in 29 C.F.R. § 1614.105(a)(1) to a
plaintiff bringing a Title VII action against a labor
organization, see Ivey v. National Treasury Employees Union,
Civil Action No. 05-1147 (EGS), 2007 WL 915229, at *3 (D.D.C.
March 27, 2007), the issue of which limitations period to apply
does not need to be decided here because even applying the more
lenient limitations period sought by Pueschel, her claim against
NATCA can include only the assertion that NATCA discriminated or
retaliated against her by somehow causing, or failing to prevent,
the termination of her employment - - the only incident she has
alleged that falls within the periods of time covered by either
standard. Pueschel attaches to her opposition an affidavit from
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a colleague that was completed in September 1998, months outside
of the relevant window of either limitation period3; a letter
written by Pueschel’s psychiatrist in April 1998 detailing the
results of an examination of Pueschel that occurred on March 24,
1998; and Pueschel’s own affidavit, executed in August 2009,
stating that she was told repeatedly by “Union members and
officials” in 1997 and 1998 that “they were going to get me
fired,” and describing a June 1998 interaction that she had with
a supervisor at the entrance of the Air Traffic Control Tower in
Jacksonville, Florida. None describes any events on or after
December 1, 1998. (Pl.’s Opp’n, Exs. 1-3.)
Further, not only do Pueschel’s attachments fail to cite
additional incidents of discrimination within the limitations
period other than her termination, but they are also not
sufficient to create a genuine issue of material fact as to
whether there was a causal connection between NATCA and
Pueschel’s termination. Pueschel has not presented evidence
showing that NATCA had any particular influence over the FAA’s
3
Paragraph 3 of Pueschel’s statement of material facts
states that “beginning in 1993 and continuing for as long as
plaintiff was employed by the FAA, i.e., until January 1999,
members and officials of the Defendant Union began stating openly
that plaintiff, ‘should be fired’ and ‘should have been fired a
long time ago.’” (Pl.’s Stmt. of Mat. Facts, ¶ 3.) However,
that paragraph cites Pueschel’s Exhibit 1, the McClure Affidavit,
which was dated September 27, 1998. Therefore, paragraph 3 does
not pertain to incidents of discrimination that occurred within
the limitations period.
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decision to terminate her employment, nor does it set forth any
specific steps that NATCA took to cause, or attempt to cause, the
termination of her employment. Nor has Pueschel shown or alleged
that she asked NATCA to file a grievance on her behalf regarding
her termination and NATCA failed or refused to do so. (See
Def.’s Mem. at 7.) Where a plaintiff fails to ask her union to
process a grievance to remedy an employment action, she “‘cannot
complain that the Union failed to represent’” her adequately
regarding that action. Badlam v. Reynolds Metals Co., 46 F.
Supp. 2d 187, 203 (N.D.N.Y 1999) (quoting Flanigan v. Int’l Bhd.
of Teamsters, Local No. 671, 942 F.2d 824, 829 (2d Cir. 1991)).
Finally, Pueschel has again provided no new evidence showing any
error in the determination that the previous incidents of
discrimination of which she complained were not sufficiently
connected to events that occurred during the limitations period
to allow them to be part of a hostile work environment claim
under a continuing violation theory. Therefore, Pueschel has not
met her burden, and NATCA’s motion will be granted.
CONCLUSION
Because Pueschel has not shown the presence of a genuine
issue of material fact and NATCA is entitled to judgment as a
matter of law, NATCA’s motion for summary judgment will be
granted. An appropriate order accompanies this memorandum
opinion.
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SIGNED this 25th day of March, 2011.
/s/
RICHARD W. ROBERTS
United States District Judge