UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1178

DEBORAH KATZ PUESCHEL, 

 Plaintiff - Appellant, 

 v. 

MARY E. PETERS, Secretary, United States 

Department of Transportation, 

 Defendant - Appellee. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, United 

States District Judge. (1:01-cv-01471-GBL-TCB) 

Argued: May 14, 2009 Decided: August 12, 2009 

Before MICHAEL, KING and GREGORY, Circuit Judges. 

Affirmed by unpublished opinion. Judge Gregory wrote the 

opinion, in which Judge Michael and Judge King joined. 

ARGUED: George Michael Chuzi, KALIJARVI, CHUZI & NEWMAN, PC, 

Washington, D.C., for Appellant. Lauren Anne Wetzler, OFFICE OF 

THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. 

ON BRIEF: Chuck Rosenberg, United States Attorney, Ralph Andrew 

Price, Jr., Assistant United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
GREGORY, Circuit Judge: 

Deborah Katz Pueschel has filed several employment 

discrimination lawsuits against the Federal Aviation 

Administration (“FAA”) in the last thirty years. In the case at 

bar, Pueschel claims 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), by, 

inter alia, interfering with the processing of her workers’ 

compensation. The district court dismissed the complaint on res 

judicata grounds, finding that all of her claims had already 

been raised in a similar complaint adjudicated in 1997. When 

Pueschel appealed, this Court affirmed in part but reversed with 

respect to her claim that the FAA interfered with her 

application to the Office of Workers’ Compensation Programs 

(“OWCP”). Pueschel v. United States (Pueschel II), 369 F.3d 345 

(4th Cir. 2004). On remand, the district court granted summary 

judgment to the Secretary of Transportation (“Secretary”) on the 

remaining OWCP claim. 

On the second appeal, this Court affirmed in part but 

remanded for further exploration of the FAA’s alleged 

interference with Pueschel’s ability to obtain OWCP benefits 

between April and August 1992. Pueschel v. Mineta, No. 06-1305, 

2007 WL 1290896 (4th Cir. May 2, 2007). On the second remand, 

the district court granted summary judgment to the Secretary, 

2 
finding that Pueschel failed to exhaust her administrative 

remedies. For the reasons stated herein, we affirm. 

I. 

Pueschel entered the air traffic controller program in 1974 

and later became an air traffic controller in the Leesburg, 

Virginia, Air Traffic Control Center. She was subsequently 

assigned to the Washington Air Route Traffic Control Center. In 

the late 1970s, Pueschel began seeking workers’ compensation 

benefits from the OWCP. In 1982, she submitted a claim for 

anxiety disorder, fatigue, and asthma, which she claimed were 

the result of sexual harassment she experienced in the 

workplace. In 1992, the OWCP accepted Pueschel’s claim for 

workplace illness. Pueschel blames both the FAA and the 

Department of Labor for the nearly ten-year delay in the OWCP 

accepting her claim. 

In 1995, Pueschel filed an action alleging that FAA 

personnel, including Personnel Specialist Patricia Carey, 

interfered with the processing of her OWCP claims by refusing to 

assist her in compiling a list of the leave that she had taken. 

She further asserted that FAA personnel had destroyed her time 

and attendance records in order to make it difficult for her to 

3 
apply for buy-back leave.1 The district court granted the 

Secretary’s motion for summary judgment, and this Court 

affirmed. See Pueschel v. Slater (Pueschel I), No. 97-2503, 173 

F.3d 425 (4th Cir. Feb. 18, 1999) (table) (per curiam). 

In 2001, Pueschel brought a discrimination suit in the 

Eastern District of Virginia claiming both that the FAA denied 

her various awards and opportunities for advancement and that 

the FAA retaliated against her by interfering with the 

processing of her OWCP workers’ compensation claims. The 

Secretary moved for dismissal arguing that Pueschel’s claims 

were barred by the preclusive effect of Pueschel I. The 

district court granted the motion to dismiss, finding that 

Pueschel’s claims were in fact barred by the preclusive effect 

of Pueschel I. On appeal, this Court affirmed in part and 

reversed in part, finding that although res judicata barred 

litigation of one element of Pueschel’s claim, the OWCP claims 

were not barred. See Pueschel II, 369 F.3d 345. This Court 

remanded the claim of OWCP interference for further proceedings. 

On remand, the Secretary moved to dismiss for failure to 

state a claim and for lack of subject matter jurisdiction. The 

district court granted the motion. Pueschel appealed, stating 

 1

 Federal employees who suffer work-related injuries or 

illnesses and are unable to report for duty may apply to the 

OWCP to have their sick and annual leave restored. This is 

called “buying back” leave. 

4 
that her allegations of OWCP interference beginning in August 

1992 and continuing through April 1994 had not yet been 

litigated. This Court reversed in part and remanded for the 

limited purpose of deciding whether the FAA interfered with 

Pueschel’s OWCP claim in a retaliatory manner within the period 

of April 1992 through August 1992. 

On remand, the Secretary moved for summary judgment, 

arguing that Pueschel failed to exhaust her administrative 

remedies regarding this claim. The district court granted the 

motion, but also concluded that even if Pueschel had exhausted 

all of her administrative remedies, she could not prevail 

because the FAA had no duty to assist in her compilation of time 

and attendance records for the purpose of obtaining her buy-back 

leave. Pueschel timely appealed. 

II. 

This Court reviews a district court’s decision to grant 

summary judgment de novo. Hill v. Lockheed Martin Logistics 

Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en banc). 

Further, this Court “view[s] all facts and reasonable inferences 

therefrom in the light most favorable to the nonmoving party.” 

Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 603 (4th Cir. 

2002). However, even when all evidence is viewed in the light 

most favorable to the nonmoving party, the nonmoving party 

5 
cannot defeat a properly supported summary judgment motion 

without presenting “significant probative evidence.” Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (internal 

quotation omitted). 

III. 

The district court granted the FAA’s motion for summary 

judgment on the ground that Pueschel failed to exhaust her 

administrative remedies. The court found that Pueschel failed 

to include in her EEO complaint the allegation that FAA 

Personnel Specialist Patricia Carey was motivated by retaliatory 

animus when she refused to compile Pueschel’s time and 

attendance records or create a list of the leave that Pueschel 

had taken since January 1980.2 In light of the requirement for a 

factual nexus between a civil complaint and an administrative 

charge, the district court held that Pueschel was precluded from 

litigating her claim. See Bryant v. Bell Atl. Md., Inc., 288 

F.3d 124, 132 (4th Cir. 2002) (holding that an administrative 

charge “defines the scope of the plaintiff’s right to institute 

a civil suit”); cf. Chisholm v. U.S. Postal Serv., 665 F.2d 482, 

491 (4th Cir. 1981) (“An administrative charge of discrimination 

does not strictly limit a Title VII suit which may follow; 

 2 The name “Patricia Carey” is never mentioned in Pueschel’s 

administrative EEO complaint. 

6 
rather, the scope of the civil action is confined only by the 

scope of the administrative investigation that can reasonably be 

expected to follow the charge of discrimination.”). 

Whatever the merits of the FAA’s exhaustion argument, we 

find that it was waived when the FAA failed to raise the 

argument in its original motion to dismiss. “The Supreme Court 

has indicated that a statute requiring plaintiffs to exhaust 

administrative remedies before coming into federal court may be 

either jurisdictional in nature or non jurisdictional . . . .” 

Ace Prop. & Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 

996 (8th Cir. 2006) (citing Weinberger v. Salfi, 442 U.S. 749 

(1975)). Exhaustion of administrative remedies prior to 

bringing a Title VII action is not a jurisdictional requirement. 

Edelman v. Lynchburg Coll., 300 F.3d 400, 403-04 (4th Cir. 

2002); Zografov v. V.A. Med. Ctr., 779 F.2d 967, 969 (4th Cir. 

1985); Aronberg v. Walters, 755 F.2d 1114, 1116 (4th Cir. 1985). 

Because an exhaustion defense is not jurisdictional, it can be 

waived. Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004) 

(holding that an exhaustion defense can be waived by failing to 

raise it). Therefore, we must reach the merits of Pueschel’s 

claims. 

IV. 

7 
In addition to granting the FAA’s summary judgment motion 

on exhaustion grounds, the district court granted summary 

judgment on the merits of Pueschel’s retaliation claim. Claims 

of retaliation are subject to the McDonnell-Douglas Corp. v. 

Green, 411 U.S. 792 (1973), burden-shifting analysis. See King 

v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003).3 In order to 

establish a prima facie case of retaliation, a plaintiff must 

show that: 1) she engaged in a protected activity; 2) the 

employer took a materially adverse action against her; and 3) 

there is a causal connection between the protected activity and 

the adverse action. Id.

The district court found that Pueschel failed to meet the 

second element of the retaliation claim because refusal to 

assist in the compilation of the information necessary to apply 

for “buy back” leave is not a “materially adverse” action. See

James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th 

Cir. 2004) (requiring plaintiff to demonstrate “significant 

detriment[]” to the terms, conditions, or benefits of 

employment) (internal quotation omitted)). Pueschel argues that 

the conduct she alleges is materially adverse because a 

 3

 Once a plaintiff has made out a prima facie case, the 

burden shifts to the defendant to offer a legitimate nonretaliatory reason for its actions. See King, 328 F.3d at 150-

51. If the defendant is able to do this, the burden shifts back 

to the plaintiff to prove that the reason offered was a pretext 

for retaliation. Id.

8 
reasonable person would have been deterred from engaging in 

protected activity if he or she knew in advance that the FAA’s 

response to such activity would be to deny assistance in 

completing the complicated prerequisites to process an 

application for buy-back leave. See Burlington N. & Santa Fe 

Ry. Co. v. White, 548 U.S. 53, 67-68 (2006) (“In our view, a 

plaintiff must show that a reasonable employee would have found 

the challenged action materially adverse, which in this context 

means it well might have dissuaded a reasonable worker from 

making or supporting a charge of discrimination.”) (internal 

citation and quotation marks omitted)).4

Yet, Pueschel does not demonstrate that the alleged conduct 

would have deterred a reasonable person from engaging in 

protected activity. To begin, Pueschel does not cite any 

statute, policy, or regulation to indicate that she is entitled 

to the type of detailed assistance she requested. Further, 

there is no indication that Pueschel was entitled to buy-back 

leave. Even if the FAA had acted with the utmost speed in 

assisting Pueschel in the compilation of her records, there is 

no guarantee that she would have been granted all or any of the 

 4

 The FAA argues that Burlington Northern does not extend to 

retaliation claims by federal employees. We need not address 

this argument because, assuming arguendo that Burlington 

Northern does apply, Pueschel still cannot establish a prima 

facie case. 

9 
10 

leave she requested. Moreover, there is evidence in the record 

that Pueschel already had in her possession copies of her time 

and attendance records. As the Supreme Court notes in 

Burlington Northern, when we consider materially adverse action, 

“it is important to separate significant from trivial harms.” 

Id. at 68. We are not convinced that the adversity at issue 

here was material, given that we do not believe that Pueschel 

was entitled to the type of assistance or leave that she 

requested. Therefore, we find that Pueschel cannot establish a 

prima facie case. 

V. 

Although, we find that the FAA waived its exhaustion 

defense, we agree with the district court that Pueschel’s 

retaliation claim fails on the merits because she cannot 

establish a prima facie claim of retaliation. 

AFFIRMED