UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY K. SCHLICK,
Plaintiff-Appellant,

v.

DONNA E. SHALALA, SECRETARY OF
HEALTH AND HUMAN SERVICES,
                                                                       No. 95-2695
Defendant-Appellee,

and

WILLIAM RAUB, Dr., Acting Director
of the National Institutes of Health,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-91-231-PJM)

Argued: July 8, 1996

Decided: August 1, 1996

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,
and JOSEPH F. ANDERSON, JR., United States District Judge for
the District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: David H. Shapiro, SWICK & SHAPIRO, P.C., Washing-
ton, D.C., for Appellant. Larry David Adams, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Diane
Bodner, SWICK & SHAPIRO, P.C., Washington, D.C., for Appel-
lant. Lynne A. Battaglia, United States Attorney, Greenbelt, Mary-
land, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Mary K. Schlick brought suit alleging that the Depart-
ment of Health and Human Services failed to make reasonable
accommodation for her disability and constructively discharged her in
violation of the Rehabilitation Act of 1973, 29 U.S.C. § 790 et seq.
On appeal, she argues that the district court erred in entering summary
judgment against her. We hold, however, that appellant was not a
qualified individual entitled to reasonable accommodation under the
Act and was not constructively discharged. Accordingly, we affirm
the judgment of the district court.

I.

In 1974, Schlick suffered a head injury and was diagnosed as hav-
ing Non-psychotic Organic Brain Syndrome with Brain Trauma. Her
condition substantially limits her ability to work, in particular her
ability to handle complex work assignments, deadlines, and work
requiring frequent synthesis of new material.

Schlick was hired by the National Cancer Institute (NCI) in 1979.
She was rapidly promoted, obtaining in 1984 a GS-11 position as a
legislative analyst. Dr. Mary Knipmeyer became her supervisor in
1983 and gave her favorable performance reviews prior to 1987. In
April 1986, Schlick went on a six-month work detail to the National

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Institute of Diabetes and Digestive and Kidney Diseases (NIDDK).
She also received a favorable review for her performance there.

In 1987, however, Schlick's performance declined dramatically. In
the beginning of 1987, Schlick went on a second detail to the Com-
munity Clinical Oncology Program (CCOP). In evaluating her work
at CCOP, her supervisor there expressed strong disappointment in her
performance, stating that "[Schlick] is not considered responsible for
carrying out critical tasks," and "requires almost a one-to-one supervi-
sion. This should not be necessary at her grade level."

Following her return from CCOP, Schlick's July 1987 progress
review documented further problems with her performance. In August
1987, Dr. Knipmeyer asked Schlick to prepare a legislative history of
the Cancer Center Program. Substantial defects in her work product
forced Dr. Knipmeyer to spend numerous hours revising and correct-
ing the report. In November 1987, Dr. Knipmeyer provided Schlick
with a letter outlining the problems with the legislative history project
and requested that Schlick obtain a medical evaluation in order to
allow NCI to assess what positions or accommodations might be
appropriate for her. In December 1987, Schlick went on leave and
never returned to work.

Schlick brought suit in 1990, alleging that the Department of
Health and Human Services had failed to accommodate her disability
and constructively discharged her in violation of the Rehabilitation
Act of 1973. The district court awarded summary judgment to appel-
lee.

II.

On appeal, Schlick contends that the district court erred in granting
summary judgment, arguing that she was a qualified employee enti-
tled to accommodation and was constructively discharged in violation
of the Rehabilitation Act. We disagree. No reasonable interpretation
of the record will support the conclusion either that she was qualified
for her position or that she was constructively discharged.

A.

Under applicable regulations, the Rehabilitation Act requires fed-
eral agencies to "make reasonable accommodation to the known phys-

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ical or mental limitations of an applicant or employee who is a
qualified individual with handicaps . . . ." 29 C.F.R. § 1614.203(c)(1).
Among other requirements, a "qualified individual with handicaps"
must be able "with or without reasonable accommodation, [to] per-
form the essential functions of the position in question." 29 C.F.R.
§ 1614.203(a)(6). Schlick asserts that her favorable performance
reviews prior to 1987 demonstrate that she was a"qualified individ-
ual." We disagree. While these evaluations may suggest that Schlick
was capable of performing certain elements of her job, her perfor-
mance in 1987 and medical evidence regarding her condition demon-
strate that she could not fully meet the legitimate requirements of her
position.

A primary example is Schlick's performance on the legislative his-
tory assignment for Dr. Knipmeyer. There is no question that the proj-
ect fell within Schlick's job description, but her work product was
plainly inadequate, both incomplete and riddled with errors. For
example, Schlick confused Congressional report language with statu-
tory language, included incomplete or misquoted report language, and
failed to locate certain readily available reference materials. Dr. Knip-
meyer had to rewrite ninety percent of the analytical portion of Schl-
ick's report. Similar deficiencies in her performance were evident
throughout 1987, including her work at CCOP.

The disabling impact of Schlick's condition is confirmed by evi-
dence in her medical record. One doctor who examined her noted that
although trained as a paralegal, she was unable to function as one
when placed under even mild pressure. Two evaluations of her condi-
tion concluded that an appropriate position for Schlick would be sig-
nificantly different from the one she held, requiring close supervision,
few time constraints or deadlines, modest requirements for synthesiz-
ing new material, and assignment of minimal tasks at one time. Dr.
Troshinsky, her treating psychiatrist, concluded that "she was given
tasks that she could not successfully perform because of the cognitive
deficits from the head injury."

Appellant essentially does not dispute the fact that her work assign-
ments were appropriate for her position or the fact that her perfor-
mance in 1987 was inadequate. Instead, Schlick primarily argues that
the problems she experienced commenced only after Dr. Knipmeyer,

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in April 1987, requested that Schlick observe regular hours instead of
coming into work early, as she had done previously.

This does not explain her poor performance at CCOP, however,
since that detail occurred before she was asked to observe regular
working hours. More importantly, coming to work early would not
address appellant's inability to perform under stress and meet dead-
lines or her need for intensive supervision. Undisputed evidence thus
compels us to conclude that Schlick was simply unable to meet the
legitimate requirements of her job.

B.

Schlick also claims that she was constructively discharged, alleging
that Dr. Knipmeyer tried to get rid of her first by assigning her to
work details elsewhere, and then by restructuring her work so that she
was "bound to fail." This claim, however, is unsupported by the
record.

In this circuit, the standard for constructive discharge requires a
plaintiff to establish both intolerable working conditions and a delib-
erate effort by the employer to force the employee to quit. Martin v.
Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir. 1995);
Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir. 1993). In arguing that
she was subjected to intolerable working conditions, Schlick points to
(1) work assignments given to her in 1987; (2) criticism of her work
in 1987; (3) Dr. Knipmeyer's request that she observe normal work
hours; and (4) Dr. Knipmeyer's request for a medical evaluation of
her condition. As noted, however, appellant does not contend that any
of the work assigned was inappropriate for her position or that her
performance in 1987 was adequate. By definition, asking an
employee to perform legitimate assignments cannot be intolerable.
Similarly, legitimate criticism is a part of any job. Meanwhile, the
requests that Schlick observe regular working hours and provide a
medical evaluation were part of a series of events wherein NCI
attempted to assist her; Dr. Knipmeyer became aware that Schlick's
disability severely affected her ability to perform and consequently
requested a medical evaluation in order to aid Schlick in finding an
appropriate position.

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Nor do appropriate work assignments and legitimate criticism evi-
dence "a deliberate effort by the employer to force the employee to
quit." Johnson, 991 F.2d at 131. Schlick claims that Dr. Knipmeyer
pressured her to go on the two work details, but, even if true, this
could not have been part of a plot to get rid of her-- Dr. Knipmeyer
was unaware of any significant problems with Schlick's performance
until after she began the second detail. Similarly, Dr. Knipmeyer's
requests that she work regular hours and obtain a medical evaluation
were made before Dr. Knipmeyer knew the full extent of appellant's
disability.

The record clearly shows NCI's overall behavior as a bona fide
effort to assess the nature of Schlick's disability and to determine
which positions or accommodations might be appropriate to allow her
to continue working. In fact, NCI continued to search for a place for
Schlick even after she had left work and it was not clear whether she
would return.

III.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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