Filed: Oct. 26, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1278 LISA K. MULLEN, Plaintiff – Appellant, v. JOHN MCHUGH, Secretary of the Army, Army Corps of Engineers, Huntington District, Defendant – Appellee. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:08-cv-00107) Argued: September 22, 2011 Decided: October 26, 2011 Before DUNCAN, DAVIS, and DIAZ, Circuit Judges. Affirmed by unpubli
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1278 LISA K. MULLEN, Plaintiff – Appellant, v. JOHN MCHUGH, Secretary of the Army, Army Corps of Engineers, Huntington District, Defendant – Appellee. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:08-cv-00107) Argued: September 22, 2011 Decided: October 26, 2011 Before DUNCAN, DAVIS, and DIAZ, Circuit Judges. Affirmed by unpublis..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1278
LISA K. MULLEN,
Plaintiff – Appellant,
v.
JOHN MCHUGH, Secretary of the Army, Army Corps of Engineers,
Huntington District,
Defendant – Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:08-cv-00107)
Argued: September 22, 2011 Decided: October 26, 2011
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James Lawrence Fuchs, SNIDER & ASSOCIATES, LLC,
Baltimore, Maryland, for Appellant. J. Christopher Krivonyak,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee. ON BRIEF: Michael J. Snider, SNIDER & ASSOCIATES,
LLC, Baltimore, Maryland, for Appellant. R. Booth Goodwin II,
United States Attorney, Kelly R. Curry, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lisa K. Mullen (“Mullen”) appeals the district court’s
grant of summary judgment in favor of her employer, the U.S.
Army Corps of Engineers (“the Agency” or “the Corps”), on her
employment discrimination claims under the Rehabilitation Act of
1973, as amended, 29 U.S.C. §§ 701-7961 (2006), for failure to
accommodate and hostile work environment. We affirm.
I.
Mullen worked for the Corps in Huntington, West Virginia
from 1983 until her retirement following a car accident in 2007
or early 2008. In 1989, Mullen suffered permanent nerve damage
in her foot when she stepped on a nail while performing field
work for the Corps. As a result of her injury, Mullen has since
walked with the aid of a cane. Mullen filed numerous union
grievances and at least two Equal Employment Opportunity
Commission (“EEOC”) charges claiming discrimination on the basis
of her mobility impairments. In April 1993, Mullen and the
Corps entered into a negotiated settlement agreement which
allowed her to spend the first and last forty minutes of her
work day in sedentary activities and required the Corps to make
a good faith effort to find her a parking space near the federal
building at which she worked. In February 1995, Mullen and the
Corps amended the settlement agreement to allow Mullen twice as
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much time to conduct field work assignments as the Corps would
allow employees without physical limitation. Mullen filed new
charges with the EEOC in 2002 and 2005. These charges are the
subject of the instant case.
A.
In December 2000, Mullen requested the permanent assignment
of a particular parking space directly adjacent to the federal
building where she worked. In response to repeated requests by
the Corps for medical documentation of her condition, Mullen
provided documentation from 1992-93 of a permanent, substantial
limitation in walking. The Corps responded that it did not
question the permanency of her condition, but rather was asking
for documentation of a specific functional limitation. Mullen
did not provide additional documentation. In September 2001,
the Corps denied Mullen’s request for the parking space on the
basis that the 1993 and 1995 negotiated settlement agreements
had provided reasonable accommodations for her limitations as of
that date, and since Mullen’s medical documentation dated from
1992-93, she had established no additional or changed mobility
restrictions beyond what the agency had already addressed. The
Corps informed Mullen that she could submit additional medical
documentation for further consideration at any time.
In January 2002, Mullen filed a grievance regarding the
decision. The Corps, in a final agency decision rendered by
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Colonel Rivenburgh, again denied Mullen’s request on the basis
of failure to submit sufficient medical documentation. Mullen’s
union invoked arbitration and, in June 2003, an arbitrator
decided in Mullen’s favor, ordering the employer to grant her
the parking space and finding, in a conclusory fashion, in favor
of Mullen on a claim of hostile work environment. See Am. Fed’n
of Gov’t Employees, L. 3729 v. U.S. Army Corps of Eng’rs, Slip
Copy (June 10, 2003) (Skonier, Arb.). The Corps filed
exceptions with the Federal Labor Relations Authority (“FLRA”)
regarding the arbitrator’s finding that the Corps had failed to
reasonably accommodate Mullen. The FLRA set aside the
arbitrator’s ruling on reasonable accommodation, finding it
“legally deficient,” and overturned the award of the parking
space. J.A. 136-47. The FLRA emphasized that reasonable
accommodation requires “dialogue between the employee and
employer, a sharing of information back and forth, the goal of
which is to identify the employee’s needs,” and held that “where
the failure to provide a reasonable accommodation . . . is
traceable to the fact that the employee did not provide
necessary information, the agency is not liable for that
failure.” Id. at 141.
Mullen appealed to the EEOC Office of Federal Operations
(“OFO”), which affirmed the FLRA’s decision in November 2007.
The OFO found “it was not unreasonable for the agency to request
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an update of grievant’s medical documentation as necessary to
support her need for the new or additional accommodation of a
parking place,” and further that “grievant failed to provide
updated medical information to determine whether her condition
changed,” leaving “the agency . . . unable to assess whether
grievant’s condition was sufficient to warrant the accommodation
she requested.” Id. at 153. It found that “the breakdown in
the interactive process over the accommodation request resulted
from grievant’s failure to provide medical information dated
more recently than 1992.”
Id. Mullen filed the underlying
action in the district court on February 15, 2008.
B.
While administrative proceedings in the failure-to-
accommodate case were ongoing, Mullen filed new formal charges
with the EEOC in November 2005, January 2006, and September 2006
alleging disability discrimination and reprisal based on a
continued hostile work environment. The administrative law
judge (“ALJ”) consolidated the proceedings on the two charges
and held a hearing at which Mullen presented evidence of more
than a dozen incidents she believed created a hostile work
environment. On February 20, 2008, the ALJ issued a decision
rejecting Mullen’s claims on the basis that she was not an
individual with a disability under the Rehabilitation Act of
1973, 29 U.S.C. § 705, relying on a finding that Mullen’s
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medical documentation from 1992-93 failed to demonstrate that
she was “substantially limited in her ability to walk.” J.A.
654.
The Corps filed its Final Agency Decision (“FAD”)
implementing the ALJ’s decision on April 7, 2008, and Mullen
received the decision on April 9, 2008. The FAD advised Mullen
that she could file a civil action in federal court within 90
days. Mullen attempted to assert a hostile environment claim in
the district court by amending her original complaint on July
23, 2008. The Corps subsequently moved for summary judgment.
II.
In granting defendant’s motion for summary judgment the
district court carefully considered the record and concluded
that Mullen had failed to provide sufficient evidence to support
her claims of failure to accommodate and hostile work
environment, and that the Corps was entitled to judgment as a
matter of law. Mullen v. Harvey, No. 3:08-cv-00107, 2010 WL
454489, at *1 (S.D. W. Va. Feb. 2, 2010). The district court
assumed without deciding that Mullen was disabled,
id. at *5,
but it rejected her failure-to-accommodate claim because it
found that she had failed to provide the Corps with medical
documentation showing her limitations had changed since 1993 and
1995, when she had previously entered into negotiated settlement
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agreements with the Corps to provide her with accommodations.
Id. at *6-7. The district court held that “[w]ithout more
specific information about an increased or additional
limitation, there was no duty to alter the existing
accommodation or establish a new one.”
Id. at *6.
The district court then denied Mullen’s hostile work
environment claim on two independent grounds, one substantive
and the other procedural. Id. at *8. The court concluded as a
matter of law that the conduct Mullen complained of was not so
severe or pervasive as to alter the conditions of her
employment, a requisite element of a hostile work environment
claim.
Id. at *8-9. The court alternatively found that
Mullen’s hostile work environment claim failed because her
federal court claim was untimely filed.
Id. at *10.
As to the latter ground, there is no dispute that Mullen
filed her original complaint on February 15, 2008, before she
had exhausted her administrative remedies as to her second EEOC
charge. Id. The ALJ announced her decision on February 20,
2008, judgment was entered on February 22, 2008, the FAD
implementing the ALJ decision was filed on April 7, 2008, and
Mullen received the FAD on April 9, 2008.
Id. Under 29 C.F.R.
§ 1614.407, any federal court action based on the underlying
charge of discrimination would have been timely within 90 days
of Mullen’s receipt of the FAD. However, Mullen did not seek to
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amend her complaint in the underlying action until July 23, 2008
— well beyond the 90-day deadline. Finding that equitable
tolling should not apply, the district court determined that
Mullen’s hostile work environment claim was procedurally barred.
Id.
Mullen filed a timely appeal. We review the district
court’s grant of summary judgment in favor of the Corps de novo,
examining the facts in the light most favorable to the nonmoving
party. Anderson v. Russell,
247 F.3d 125, 129 (4th Cir. 2001).
III.
Having had the benefit of oral argument and having
carefully reviewed the briefs, record, and controlling legal
authorities, we agree with the district court’s analysis of
Mullen’s failure to accommodate claim. Accordingly, as to that
claim, we affirm on the basis of the district court’s well
reasoned opinion. With respect to Mullen’s hostile work
environment claim, we affirm on the basis that Mullen failed to
file a timely action in the district court within 90 days of her
receipt of the FAD as required under 29 C.F.R. § 1614.407, and
accordingly, we do not reach the merits.
AFFIRMED
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