                            UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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 non-
retaliatory 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
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




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