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, -2-

(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,

. -3-

her, failing to accommodate her, and by failing to prevent the

FAA from mistreating her. Pueschel,

. 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,

.

NATCA has moved for summary judgment, arguing that Pueschel

has not presented evidence that NATCA was responsible for her -4-

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,

(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,

(D.D.C. 2008) (quoting Anderson v. Liberty

Lobby, Inc.,

(1986)); Matsushita Elec. Indus.

Co. v. Zenith Radio Corp.,

(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,

(quoting -5-

Moore v. Hartman,

(D.C. Cir. 2009) (quoting

Matsushita,

)). “‘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,

(quoting Graham v. Holder,

(D.D.C. 2009)

(citing Greer v. Paulson,

(D.C. Cir. 2007),

and Burke v. Gould,

(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,

(D.D.C. 2009) (quoting Anderson,

). 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,

. “‘The possibility that a jury might speculate

in the plaintiff’s favor is insufficient to defeat summary

judgment.’” Pardo-Kronemann v. Donovan,

(D.C.

Cir. 2010) (affirming grant of summary judgment despite -6-

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,

(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.) -7-

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,

(D.C. Cir. 1999); Burke v. CWA Local

1109, No. 07-CV-3595,

, 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

(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

(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. -8-

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.,

(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

(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),

, 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 -9-

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. -10-

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.,

(N.D.N.Y 1999) (quoting Flanigan v. Int’l Bhd.

of Teamsters, Local No. 671,

(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. -11-

SIGNED this 25th day of March, 2011.

/s/ RICHARD W. ROBERTS United States District Judge