                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                       2
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

                                 3
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

                                            4
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

                                               5
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

                                           6
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

                                               7
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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