PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DEBORAH KATZ PUESCHEL,
Plaintiff-Appellant,
v.
MARY E. PETERS, in her official No. 08-1351
capacity as Acting Secretary, U. S.
Department of Transportation,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T.S. Ellis, III, Senior District Judge.
(1:07-cv-00640-TSE-TCB)
Argued: May 14, 2009
Decided: August 18, 2009
Before MICHAEL, KING and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the
opinion, in which Judge Michael and Judge King joined.
COUNSEL
ARGUED: George Michael Chuzi, KALIJARVI, CHUZI &
NEWMAN, PC, Washington, D.C., for Appellant. Lauren
Anne Wetzler, OFFICE OF THE UNITED STATES
2 PUESCHEL v. PETERS
ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Chuck Rosenberg, United States Attorney, Alexan-
dria, Virginia, for Appellee.
OPINION
GREGORY, Circuit Judge:
This is Deborah Katz Pueschel’s fifth employment discrim-
ination 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 disabil-
ity, 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. Fur-
ther, 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 hos-
tile work environment claim because she failed to demon-
strate 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.
PUESCHEL v. PETERS 3
I.
A.
Pueschel entered the air traffic controller program in 1974
and later became an air traffic controller in the Leesburg, Vir-
ginia, 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 moti-
vate the personnel action, but that Pueschel had been sub-
jected 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 fed-
eral 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).
4 PUESCHEL v. PETERS
On April 5, 1994, while a claim she filed with the EEOC
in 1992 was being processed, Pueschel alleges that she suf-
fered 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, Pues-
chel had a dispute with FAA management and her union rep-
resentatives 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 East-
ern 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 liti-
gation 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, No. 06-1305,
2007 WL 1290896 (4th Cir. May 2, 2007). On remand, the
district court dismissed the remainder of Pueschel’s 1992
complaint. Pueschel has appealed that decision in a separate
PUESCHEL v. PETERS 5
case currently before this Court. See Pueschel v. Peters, No.
08-1178.
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, Pues-
chel 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 con-
ducted a hearing and affirmed the FAA’s decision to remove
Pueschel. This decision was later affirmed by the Federal Cir-
cuit. 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 consoli-
dated before the Equal Employment Opportunity Commis-
sion. 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
1
Federal employees who suffer work-related injuries or illnesses and are
unable to report for duty are eligible to use workers’ compensation to have
sick and annual leave restored. This is called "buying back" leave.
6 PUESCHEL v. PETERS
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 sub-
jected 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 pro-
tected activity. Pueschel timely appeals.
II.
This Court reviews a district court’s decision to grant sum-
mary 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 non-
moving 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 discrim-
ination in violation of Title VII and an "adverse employment
action" asserts a "mixed case" for which relief may be sought
PUESCHEL v. PETERS 7
by filing a "mixed case complaint" with her employing agen-
cy’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 employee pursues the mixed case in the Federal
Circuit, then she abandons her discrimination claims because
the Federal Circuit lacks jurisdiction to entertain discrimina-
tion claims. See Williams v. Dep’t of the Army, 715 F.2d
1485, 1490 (Fed. Cir. 1983) (stating, "Congress did not direct
or contemplate bifurcated review" of mixed cases under
§ 7702).
In the instant case, the district court concluded that "by
appealing the MSPB decision [to the Federal Circuit] . . .
[Pueschel] waived her right to bring related discrimination
claims in the District Court." (J.A. 52.) Pueschel argues that
when she filed her 1997 administrative EEO complaint she
had not yet been terminated by the FAA, and thus she could
not have possibly been expected to bring this issue before the
MSPB. Essentially, she argues that she could not have aban-
doned a claim that did not exist at the time of her initial filing.
Nonetheless, critical to the district court’s holding was that
at the time Pueschel was terminated in 1999, her 1997 EEO
complaint had not yet been processed. "Thus, at the time of
her MSPB appeal, she had an outstanding EEO discrimination
claim related to leave buy-back, and a procedural leave buy-
back claim raised as an affirmative defense before the
MSPB." (Id.) Therefore, Pueschel "had the opportunity to liti-
gate both claims in a court of competent jurisdiction, but
instead chose to split them." Smith v. Horner, 846 F.2d 1521,
1524 n.3 (D.C. Cir. 1988) (per curiam).
Other circuits that have addressed this issue have held that
a plaintiff’s decision to appeal an MSPB decision to the Fed-
8 PUESCHEL v. PETERS
eral Circuit waives her right to bring a discrimination claim
in district court based on the same or related facts. See, e.g.,
Chappell v. Chao, 388 F.3d 1373, 1378 (11th Cir. 2004)
(holding that when a plaintiff appeals a decision from the
MSPB to the Federal Circuit, he waives "any discrimination
claims he raised before the MSPB, [and] also any other dis-
crimination claims arising out of the same facts"); McAdams,
64 F.3d at 1143 (holding that an employee waives discrimina-
tion claims based on "similar issues arising out of overlapping
facts" by failing to include them in an MSPB appeal); Smith,
846 F.2d at 1524 n.3 (noting that splitting a claim is prohib-
ited and finding that the plaintiff waived the right to pursue
his Title VII claims in district court).
Pueschel notes that the above-cited cases are not binding
precedent from this Circuit. Further, Pueschel maintains that
if this Court were to follow the law of other circuits then it
would deprive "unsuspecting federal employees of their right
to challenge employment discrimination." (Appellant’s Reply
Br. 1.) Pueschel is anything but the unsuspecting federal
employee; she is a savvy frequent filer. As the district court
acknowledged, when Pueschel was terminated, she had the
opportunity to choose either to remove her case to the district
court or to abandon her discrimination claims and proceed in
the Federal Circuit. Pueschel had ample notice that this was
the law. In fact, Federal Circuit Claim Form 10, which Pues-
chel completed as part of her appeal to the Federal Circuit,
requires petitioners to certify either that "[n]o claim of dis-
crimination . . . has been or will be made in this case" or that
"any claim of discrimination . . . raised before and decided by
the [MSPB] . . . has been abandoned or will not be raised or
continued in this or any other court."
Pueschel cannot create a superficial distinction between her
claims that have gone before the Federal Circuit and the dis-
trict courts, since they arise out of the same set of facts. See
Chappell, 388 F.3d at 1379 (emphasizing that "[t]his waiver
applies even though Chappell contends he raised different dis-
PUESCHEL v. PETERS 9
crimination claims before the MSPB and the district court.")
The Eleventh Circuit correctly held in Chappell that when the
filings "‘raised related issues’ and ‘arose out of overlapping
facts,’" filing a claim in the Federal Circuit acts as a waiver
for those claims brought subsequently in district court. Id.
(quoting McAdams, 64 F.3d at 1142-43). Although the chro-
nology of this case does give us pause, as Pueschel filed her
first EEO complaint before her termination, we ultimately
find that the district court was correct: to allow Pueschel to
bifurcate claims based on nearly identical facts would be
irreconcilable with current case law.2 Perhaps if Pueschel’s
1997 EEO complaint had already been processed by the time
the Federal Circuit considered her appeal, we might reach a
different conclusion. However, under the facts as they exist in
this case, Pueschel impermissibly seeks a "second bite at the
apple."3
B.
The next issue on appeal concerns Pueschel’s hostile work
environment allegation. This claim has two components: 1)
the abusive conduct and 2) the FAA’s refusal to properly pro-
cess her benefits and donated leave. Viewing the facts in the
light most favorable to her, we find that Pueschel has failed
to establish a hostile work environment claim.
2
Pueschel asks this Court to apply Ikossi v. Dep’t of Navy, 516 F.3d
1037 (D.C. Cir. 2008) (finding that, where an employee’s pre-termination
claim was pending before the MSPB, the employee’s attempt to join inci-
dents surrounding the termination was time barred). She argues that the
court in Ikossi must have assumed that the plaintiff’s pre-termination dis-
crimination claims would have to proceed independently of the mixed case
discrimination claims. Pueschel’s reliance is misplaced, however, because
in Ikossi the court did not make the specific finding she posits; instead the
case was decided on other grounds.
3
Because we find that this claim was waived we need not address its
merits.
10 PUESCHEL v. PETERS
1.
In order to establish a hostile work environment claim, a
claimant must demonstrate that the alleged conduct: 1) was
unwelcome; 2) resulted because of her gender, disability, or
prior protected activity; 3) was "sufficiently severe or perva-
sive" to alter the conditions of her employment; and 4) was
imputable to her employer. Ocheltree v. Scollon Prods., Inc.,
335 F.3d 325, 338 (4th Cir. 2003) (en banc).
While the first element is subjective, the rest of the test is
made up of objective components based on a "reasonable per-
son" standard. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993). This Court has held that in order to prove the second
element, a plaintiff must show that "‘but for’ the employee’s
sex [disability, or protected activity], he or she would not
have been the victim of the discrimination." Jennings v. Univ.
of N.C., 482 F.3d 686, 723 (4th Cir. 2007) (quoting Wrightson
v. Pizza Hut of Am., Inc., 99 F.3d 138, 142 (4th Cir. 1996)).
As for the third element, harassment is considered sufficiently
severe or pervasive to alter the terms or conditions of the
employment if a workplace is "permeated with discriminatory
intimidation, ridicule, and insult." Harris, 510 U.S. at 21
(quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57,
65 (1986) (internal quotation marks omitted)).
The events that Pueschel alleges to support the abuse por-
tion of her hostile work environment are as follows: 1) While
Pueschel was on medical leave, she learned that a fellow con-
troller referred to her as an "f—ing bitch" and said that she
deserved what she was getting because she brought a sexual
harassment charge against a manager; 2) A coworker reported
that controllers said, "[W]hy doesn’t she just leave, she’s
nothing but a bitch anyhow," called her "just a useless bitch,"
and used the term "bitch" or "f—ing bitch" to refer to her con-
stantly behind her back (J.A. 349); 3) Her coworkers removed
her picture from a list of air traffic controllers and placed it
among pictures of the secretaries; 4) Some of Pueschel’s
PUESCHEL v. PETERS 11
coworkers posted, without her consent, a newspaper article
about her pending lawsuits against the FAA, and a male
coworker remarked "I hope that f—ing bitch loses" (J.A.
350); and 5) After she walked off of work and was placed on
leave without pay, she was denied access to certain control
rooms.
Pueschel takes issue with the district court’s conclusion that
the alleged conduct was not pervasive or severe because the
alleged conduct "occurred over a long period of time," was
"sporadic," consisted of a "few instances of profanity, use of
the ‘f’—ing bitch’ term," and was not uttered to her face.
(J.A. 61-62.) She claims that the district court minimized the
"abuse" and used an inappropriate analysis. However, because
we find that the dispositive question here is whether Pueschel
could be subjected to a hostile work environment where all of
the alleged conduct occurred after she left the workplace, it is
unnecessary to engage in an analysis to determine the severity
or pervasiveness of the alleged conduct.
At bottom, a claimant must show that she is subject to "an
abusive working environment." Harris, 510 U.S. at 22
(emphasis added) (internal quotations omitted). Pueschel has
not met this requirement because she cannot demonstrate that
she was part of the working environment that she alleges was
abusive. Pueschel went on LWOP in 1994. The incidents that
she alleges created a hostile work environment occurred in
1997 and 1998. Thus, even if the offensive conduct was
severe or pervasive, Pueschel cannot prevail because the abu-
sive work environment, based upon her allegations, did not
exist until three years after she left the workplace.
2.
As for the interference portions of her hostile work envi-
ronment claim, the district court found that her personnel-
related allegations were not actionable because they were
"isolated personnel decisions." (J.A. 56.) The district court
12 PUESCHEL v. PETERS
further noted that Pueschel "cited no cases . . . finding isolated
personnel decisions to be severe or pervasive enough . . . to
constitute a hostile work environment." (Id.) More impor-
tantly, the district court found that Pueschel never alleged that
her health benefits and donated leave were improperly pro-
cessed because of her gender, disability, or protected activity.
She articulates no such discrimination on appeal. Therefore,
we find that the district court properly found that Pueschel’s
hostile work environment claim was without merit.4
IV.
We find that Pueschel waived her OWCP interference
claim by appealing it to the Federal Circuit, and that she has
not demonstrated a hostile work environment. Thus, for the
reasons stated above, we affirm the district court’s grant of
summary judgment.
AFFIRMED
4
Pueschel also alleges that the FAA created a hostile work environment
by "bungl[ing] and hopelessly delay[ing]" (Appellant’s Br. 24) the pro-
cessing of her application to buy back leave. We are not persuaded that
the FAA delayed or limited her buy back to the point of creating a Title
VII hostile work environment violation, especially in light of the fact that
there is evidence that some of the delay was due to Pueschel’s own
actions. Furthermore, even assuming that the FAA had some role in delay-
ing the processing of her buy-back claim, there is no evidence that the
delay was because of her gender, disability, or prior protected activity.