Lisa Mullen v. Francis Harvey

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:08-cv-00107 Copies to all parties and the district court/agency. [998709145].. [10-1278]

Appeal: 10-1278

Document: 38

Date Filed: 10/26/2011

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.
grievances

and

at

least

two

Mullen filed numerous union
Equal

Employment

Opportunity

Commission (“EEOC”) charges claiming discrimination on the basis
of her mobility impairments.
Corps

entered

into

a

In April 1993, Mullen and the

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.
charges with the EEOC in 2002 and 2005.

Mullen filed new

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.
did not provide additional documentation.

Mullen

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.
union

invoked

arbitration

and,

in

June

2003,

an

Mullen’s
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

arbitrator’s

ruling

on

Mullen.

The

FLRA

set

reasonable

aside

accommodation,

the

finding

it

“legally deficient,” and overturned the award of the parking
space.

J.A.

accommodation

136-47.
requires

The

FLRA

“dialogue

emphasized
between

that

the

reasonable

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

traceable

to

the

fact

necessary

information,

failure.”

a

reasonable

that

agency

employee
is

not

did

.

not

.

.

is

Id. at 141.

the

the

accommodation

liable

provide

for

that

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

more recently than 1992.”

provide
Id.

medical

information

dated

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

continued

hostile

discrimination

work

and

environment.

reprisal
The

based

on

administrative

a
law

judge (“ALJ”) consolidated the proceedings on the two charges
and held a hearing at which Mullen presented evidence of more
than

a

dozen

environment.
rejecting

incidents

she

believed

created

a

hostile

work

On February 20, 2008, the ALJ issued a decision

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
5

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
district

granting
court

defendant’s

carefully

motion

for

summary

considered

the

record

judgment
and

the

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.

specific

The

district

information

limitation,

there

court

about

was

held

an

no

district

court

duty

then

“[w]ithout

increased
to

accommodation or establish a new one.”
The

that

or

alter

more

additional

the

existing

Id. at *6.

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
at

claim.

Id.

Mullen’s

hostile

*8-9.
work

The

court

environment

alternatively
claim

federal court claim was untimely filed.

failed

found

that

because

her

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.
2008,

Id.
judgment

The ALJ announced her decision on February 20,
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
carefully

had

the

reviewed

authorities,

we

benefit

the

agree

of

briefs,
with

the

oral

record,

we

reasoned

affirm
opinion.

on

the
With

basis

and

district

Mullen’s failure to accommodate claim.
claim,

argument

of

respect

the
to

and

having

controlling

court’s

legal

analysis

of

Accordingly, as to that
district
Mullen’s

court’s

well

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

8