Pueschel v. Chao
Pueschel v. Chao
Opinion of the Court
Deborah Pueschel engaged in a long string of employment-related disputes with her employer, the Federal Aviation Administration (FAA), and began receiving full-time disability benefits for work-related injuries from the Office of Worker *22Compensation (OWCP) in 1998. She later decided to run for Congress. When FAA found out, it contacted OWCP and said Pueschel's campaign activities demonstrated an ability to work that was inconsistent with the full-time disability benefits she was receiving. OWCP reduced Pueschel's benefits accordingly and cleared her for full-time work. Pueschel then wrote FAA to request a job, but never received one. Now, she brings these Title VII and Rehabilitation Act claims against FAA for retaliation and disability discrimination, asserting that FAA retaliated against her by encouraging OWCP to reduce her benefits and that FAA discriminated against her by not giving her a job. Pueschel also brings First Amendment claims against both FAA and OWCP, asserting that they violated her "right to run for Congress without penalty" by taking her campaign activities into account in reducing her benefits. Compl. ¶ 52, Dkt. 1 at 10. Before the Court is defendants' joint Motion to Dismiss under Rule 12(b)(1) and Rule 12(b)6) of the Federal Rules of Civil Procedure. Dkt. 15-1 (redacted). For the reasons that follow, the Court will grant the motion.
I. BACKGROUND
Pueschel began working for FAA as an Air Traffic Controller in 1974. Compl. ¶ 6. In 1980, she filed an EEO complaint alleging a pattern of sexual harassment by her male colleagues. Id. ¶ 10. In 1981, her disputes with FAA began to intensify. First, she was injured at work and filed a claim for worker compensation with OWCP. Id. ¶ 12. Next, she filed a federal lawsuit alleging sexual harassment and reprisal. Id. ¶ 14. After that, she called in sick due to back pain on the same day as an illegal air traffic controllers' strike. Id. ¶ 16. FAA assumed that Pueschel had participated in the strike, so it fired her and challenged her OWCP claim. Id.
Pueschel lost her first round of sexual-harassment litigation in federal court but obtained a reversal from the Fourth Circuit in 1983. Id. ¶¶ 18, 19.
In 2000, Pueschel set her sights on Congress. Id. ¶ 27. She ran for the House of Representatives in 2000-2004 and again in 2012-2016. Id. Sometime in 2012, FAA began questioning whether Pueschel's campaign activities demonstrated an ability to work that was inconsistent with the full-time OWCP benefits she was still receiving. Id. ¶ 28. On October 9, 2015, FAA sent a letter to OWCP stating that Pueschel "demonstrated, and continues to demonstrate, the ability to run for elective office" and that her campaigning activities "disprove[d]" the conclusion that she was "permanently disabled" and likely not "able to work in any capacity." Id. ¶ 30. In January *232016, OWCP reduced Pueschel's disability benefits on the grounds she was then capable of working full time as a "customer service representative." Id. ¶ 31. In March 2016, Pueschel complained to an EEO counselor about what she considered FAA's "efforts to deprive her of her disability benefits." Id. ¶ 32.
In April 2016, Pueschel sent a letter to FAA-specifically, to Margaret Gilligan, the Associate Administrator for Aviation Safety, Pl.'s Opp'n Ex. 4, Dkt. 21-4 at 1
On July 29, 2016, Pueschel initiated the EEO complaint process against FAA, which culminated in a final EEOC decision rejecting her claims on April 3, 2017. Id. ¶¶ 35-42. She timely filed this suit within 90 days of receiving that decision. Id. ¶ 43; see also 42 U.S.C. § 2000e-16(c).
Pueschel brings count I against FAA
For relief, Pueschel seeks: findings consistent with all three Counts; $ 300,000 in compensatory damages; a position with FAA retroactive to her April 9, 2016 request for employment; a remand of OWCP's decision reducing her disability benefits with instructions to recalculate them without regard for her candidacy for the House of Representatives; and reasonable attorneys' fees and expenses. Id. at 11. In response to plaintiff's complaint, defendants filed this joint Motion to Dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted.
II. LEGAL STANDARDS
Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss an action or claim when the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion for dismissal under Rule 12(b)(1)"presents a threshold challenge to the court's jurisdiction." Haase v. Sessions ,
"When ruling on a Rule 12(b)(1) motion, the court must treat the plaintiff's factual allegations as true and afford the plaintiff the benefit of all inferences that can be derived from the facts alleged." Jeong Seon Han v. Lynch ,
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly ,
Well-pleaded factual allegations are "entitled to [an] assumption of truth,"
III. ANALYSIS
A. Plaintiff's Reprisal Claim Against FAA
Plaintiff brings a claim for reprisal under the Rehabilitation Act and Title VII. But Defendants argue that another statute-the Federal Employee's Compensation Act (FECA)-prevents that claim from proceeding. FECA governs OWCP benefits and provides federal employees with an exclusive remedy against the United States for work-related injuries. See
Because the Court is powerless to review OWCP's decision directly, it cannot do so indirectly by fashioning relief under the Rehabilitation Act and Title VII.
Here, Pueschel's sole reprisal theory is that FAA "succeeded in reducing [her] disability/worker compensation benefits by repeatedly complaining to OWCP that [she] was no longer disabled." Compl. ¶ 45. Aside from her initial workplace injury in 1994, however, she does not allege any new "illness or injury" resulting from FAA's complaint to OWCP. Rather, she claims FAA's actions caused OWCP to determine the compensation owed for her existing *26injuries incorrectly. She seeks compensatory damages from FAA calculated to offset OWCP's reduction in disability benefits. And she also asks the Court to remand the OWCP's decision for reconsideration. In substance, Pueschel's claim is a challenge to OWCP's determination, which is both exclusive and unreviewable. Because plaintiff's claim amounts to an attempt to relitigate OWCP's FECA determination under the banner of the Rehabilitation Act and Title VII, FECA precludes her suit. The Court must dismiss count I.
B. Plaintiff's Discrimination Claim Against FAA
Pueschel also alleges that FAA discriminated against her on account of her disability when it failed to re-hire her after she had been cleared for full-time work. Because Pueschel's discrimination claim focuses on a new discriminatory injury unrelated to the workplace injuries considered by OWCP, it is not barred by
The Rehabilitation Act applies the substantive discrimination standards of the Americans with Disabilities Act (ADA) to executive agencies, see
An authoritative dictionary published near the time the relevant provisions were enacted defines "applicant" as "one who makes a usu[ally] formal request esp[ecially] for something of benefit to himself." Webster's Third New International Dictionary 105 (1961). But the parties point to only one case interpreting the term "applicant for employment" as it appears in Title VII and the Rehabilitation Act. In Hockett v. Administrator of Veterans Affairs , the court noted the absence of any relevant statutory definition, legislative history, or precedent and gave the term "applicant for employment" a "reasonable construction."
The court provided several reasons for its construction. First, Title VII "placed a new administrative responsibility on all federal agencies."
The Court finds Hockett 's reasoning persuasive and adds only that the written application must also be submitted to a person or office responsible for receiving such applications. Without that requirement, a written "application" could be sent to any one of hundreds or thousands of agency employees-or, worse, to unattended mailboxes or email accounts-and expose an agency to litigation simply for failing to discover it. That approach would not make the "triggering event" for Title VII grievance procedures "as concrete and specific as possible."
Here, Pueschel bases her standing as an "applicant" on one letter that she sent to the Associate Administrator for Aviation Safety, Margaret Gilligan. See Pl.'s Opp'n, Dkt. 20-1 at 19-20 (redacted); Pl.'s Opp'n Ex. 4, at 1-2. In that letter, plaintiff explained that Gilligan was the "lead attorney" on her case before the Merit Systems Protection Board thirteen years prior. Pl.'s Opp'n Ex. 4, at 1. She then recapped her disputes with the FAA and requested a position as an FAA Historian. Id. at 1-2. Gilligan sent a letter in return stating she was "unable to respond to [plaintiff's] request as this is a matter to be addressed by the Air Traffic Organization and the Office of Human Resources." Id. at 3.
Submitting a letter to an employee who does not handle employment-related requests does not make Pueschel an "applicant" with respect to FAA. She merely sent a letter to an individual FAA employee with whom she was familiar. Moreover, Gilligan did not actually reject Pueschel's request for employment; she merely directed her to the organization and office responsible for handling employment-related requests. Because Pueschel did not submit a written application to the office responsible for receiving applications for employment, she was not an "applicant" within the meaning of Title VII and the Rehabilitation Act. The Court therefore must dismiss count II.
C. Plaintiff's First Amendment Claims
Finally, Pueschel alleges that both FAA and OWCP violated her First Amendment rights: FAA by informing OWCP of her candidacy for Congress; and OWCP by considering that candidacy in determining her disability benefits. As a threshold matter, neither
Defendants do not dispute that § 8128(b) permits judicial review of plaintiff's constitutional-as opposed to statutory-claims. Defs.' Reply, Dkt. 23 at 6-7. But even if an agency "does not contest that the court has jurisdiction to review substantial constitutional claims, the court must make its own determination of its *28jurisdiction." Lepre v. Dep't of Labor ,
In Lepre , the D.C. Circuit held that § 8128(b) did not bar judicial review of a due process challenge to the procedures used by OWCP in calculating the plaintiff's benefits.
Even though the Court is not deprived of jurisdiction by § 8128(b), defendants argue that the Court lacks jurisdiction for a different reason: sovereign immunity. See Defs.' Mot. 18. "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer ,
The Administrative Procedure Act (APA), however, waives the Federal Government's sovereign immunity with respect to suits challenging the action or inaction of a federal agency, so long as the plaintiff does not seek monetary damages.
Thus, the APA's waiver of sovereign immunity covers constitutional challenges to OWCP determinations to the extent plaintiff "seek[s] an order that the Office of Workers' Compensation redetermine his entitlement [to benefits]." Czerkies v. Dep't of Labor ,
1. Standing as to FAA
"[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan ,
*29As discussed, plaintiff explicitly limits her prayer for relief on Count III to remanding the OWCP 's decision, with instructions to the OWCP to reevaluate her disability benefits. But such a remand-with-instructions would in no way bind FAA as a third party. Without a request for judicial relief regarding FAA, a finding that FAA "violated Plaintiff's First Amendment right" in the abstract, Compl. 11, would amount to an advisory opinion prohibited by Article III, see Am. Freedom Def. Initiative v. Wash. Metro. Area Transit Auth., WMATA ,
2. Failure to State a Claim as to OWCP
Defendants argue that no right to run for office without penalty exists and that, if one does, it was not violated here. Defs.' Reply 7-9. The Court agrees with defendants' latter argument.
The D.C. Circuit has recognized that the "right to seek political office ... is undeniable, though the Constitution and the Supreme Court's cases in the area do not pinpoint the precise grounds on which it rests." Branch v. F.C.C. ,
Even if OWCP reduced Pueschel's disability benefits based on her candidacy-a fact defendants vigorously dispute, see Defs.' Reply 7-in doing so, OWCP imposed no more significant burden than the equal time rule in Branch . There, the plaintiff had to choose between his job and running for office. Here, Pueschel did not lose her disability benefits entirely because she ran for office. She experienced only a partial reduction in compensation. But just as "nobody has ever thought that a candidate has a right to run for office and at the same time to avoid all personal sacrifices," Branch ,
Indeed, this case is even simpler than Branch . There, the plaintiff's candidacy directly impacted his employment. Here, however, Pueschel's candidacy played at most an indirect role in OWCP's reduction. See Pl.'s Opp'n. 25 (acknowledging that "OWCP's decision did not directly concern the First Amendment"). Pueschel does not allege that her candidacy alone triggered the reduction. Rather, she argues that OWCP's "citation of her campaign activities as evidence to support the reduction" amounted to an unconstitutional "burden." Pl.'s Opp'n 22. Because having one's candidacy considered as one factor in reducing disability benefits is no more significant than the burden of direct job loss upheld in Branch , plaintiff's "right to seek political office" is "not implicated."
It is important to note what plaintiff does not allege. She does not claim that OWCP reduced her benefits based on the viewpoint or content expressed in her campaign. Nor does she claim that OWCP punished her for associating with a particular party or that OWCP purposefully retaliated or discriminated against her because of her candidacy-for political reasons, professional reasons, or otherwise. Rather, she argues her right to run for office was impermissibly burdened by OWCP's benefit reduction. Finding that theory foreclosed by D.C. Circuit precedent, the Court will dismiss what remains of count III.
CONCLUSION
For the foregoing reasons, the Court grants defendants' motion and dismisses counts I, II, and III. A separate order consistent with this decision accompanies this memorandum opinion.
The facts here are recited as alleged in Pueschel's Complaint and are assumed true, as they must be in considering a motion to dismiss. See Ctr. for Responsible Sci. v. Gottlieb ,
See Katz v. Dole ,
Because Pueschel incorporated her letter to FAA in her complaint by reference, the Court may consider plaintiff's copy of that letter on a motion to dismiss. See EEOC v. St. Francis Xavier Parochial Sch. ,
As required by 42 U.S.C. § 2000e-16(c), plaintiff formally names the Secretary of Transportation, Elaine Chao, in her official capacity as the head of Transportation, which includes FAA. For simplicity, the Court will refer to "FAA."
Plaintiff formally names the Department of Labor, which includes OWCP. For simplicity, the Court will refer to "OWCP."
Plaintiff makes no argument to the contrary; she argues only that § 8128(b) does not bar her constitutional claims. Id. at 12-17.
The Court does not reach defendants' argument that plaintiff has failed to allege an employment relationship with FAA under the Rehabilitation Act and Title VII. See Defs.' Mot. 8-9, Dkt. 15-1 at 10-11.
The court in Hockett interpreted the term as it appears in a parallel Title VII provision incorporated by reference in the Rehabilitation Act. See 29 U.S.C. § 794a(a) (Rehabilitation Act); 42 U.S.C. § 2000e-16 (Title VII).
Reference
- Full Case Name
- Deborah K. PUESCHEL v. Elaine CHAO, in Her Official Capacity as Secretary, Department of Transportation
- Cited By
- 7 cases
- Status
- Published