UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRENDA MCCLURE,
Plaintiff-Appellant,

v.
                                                                     No. 98-2143
TOGO D. WEST, Secretary of the
United States Department of the
Army,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-97-1806-A)

Submitted: March 16, 1999

Decided: June 29, 1999

Before NIEMEYER and LUTTIG, Circuit Judges, and HALL,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael J. Beattie, Alexandria, Virginia, for Appellant. Major
Edward J. Martin, Litigation Division, DEPARTMENT OF THE
ARMY, Arlington, Virginia; Helen F. Fahey, United States Attorney,
Thomas M. Ray, Special Assistant United States Attorney, Alexan-
dria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Brenda McClure appeals the district court's judgment granting
summary judgment to the Appellee and dismissing McClure's com-
plaint. In February 1998, McClure filed an amended complaint under
the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701 to 797b (West
1999) ("Act"), against her employer, Togo West, Secretary of the
Army ("Army"), alleging that the Army did not reasonably accommo-
date McClure's disability. McClure claimed she became disabled
when chemicals and other substances were dispersed during renova-
tions to her office space. The Army claims that McClure did not
establish a prima facie case under the Act. Finding no reversible error,
we affirm.

McClure began working for the Army as a military personnel clerk
in 1985 and received a series of promotions. In 1991, after receiving
three years of training, McClure was reassigned to the position of
computer programmer. In 1993, the building in which McClure
worked, the Hoffman II building, underwent substantial renovations.
During this renovation period, McClure continued to work in her
assigned work area on the eighth floor, but began to develop allergies.
She received treatment from an allergist, Dr. Craig, and was pre-
scribed a number of medications. At times, McClure suffered from
head and nasal congestion, headaches, and breathing problems and
often missed work. McClure also reported that the medications made
her drowsy.

Craig diagnosed McClure as having allergic rhinitis as a result of
exposure to mold at the workplace and reactive airway disorder or
asthma. He opined that McClure's symptoms were primarily associ-
ated with the renovations at her workplace. Craig noted in support of
this conclusion that McClure's symptoms manifested at the work-
place, but subsided once she got home and did not occur on week-

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ends. Craig further opined McClure could return to the eighth floor
of the Hoffman II building if it were adequately clean and ventilated
and without ongoing renovations, tobacco smoke or strong perfumes
and colognes.

On February 28, 1995, McClure filed for workers' compensation
for sick leave utilized since May 1993. She claimed that her working
conditions caused and aggravated her illness. Almost immediately
thereafter, on March 3, 1995, McClure was reassigned to another
office in the Hoffman II building on the first floor. During her reas-
signment to the first floor office space, McClure never complained to
her supervisors about the air quality or exhibited symptoms that sug-
gested a reaction to chemicals or other substances. McClure became
seriously ill while at work on one occasion and had to be taken to the
hospital. That was caused by an allergic reaction to Lorabid, a pre-
scribed medication.

In July 1995, a personnel employee recommended that McClure
remain in the first floor area to fill a vacated position. McClure agreed
to this change in assignment. However, a permanent transfer to the
first floor was denied and McClure was instructed to return to the
eighth floor. McClure refused to return to the eighth floor and went
on leave without pay on September 22, 1995, pending resolution of
her claim for workers' compensation benefits. She claimed that she
had a disability that could be accommodated by permitting her to
work at home or at another location outside of the Hoffman II build-
ing.

In October 1995, McClure was advised that she would receive
workers' compensation benefits. In July 1996, McClure was advised
that her benefits would terminate because the condition causing her
illness was resolved and any further disability was not related to the
working conditions.* In November 1996, based on the termination of
_________________________________________________________________

*This decision was based upon opinions and diagnoses offered by
three physicians who examined McClure. Dr. Putnam, a pulmonologist,
found no evidence of asthma or destructive airway disease. He stated that
he did not believe that her workplace exposure was related to her symp-
toms, but recommended further diagnosis by an immunologist or aller-

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benefits, the Army advised McClure that she should return to work.
If McClure refused to return, the Army advised her that she was to
provide acceptable justification or face disciplinary action.

McClure did not return to work. She contacted an Equal Employ-
ment Opportunity Counselor to allege that she was being discrimi-
nated against based upon her disability. McClure suggested that the
problem could be corrected if she were permitted to work at home or
transferred to a "clean" building. The Army contended that McClure's
job could not be done at home because it required working in teams
and in a secure environment. Such a reassignment, according to the
Army, would also involve modifying other employees' duties. The
Army also contended that there were no positions for McClure out-
side the Hoffman II building.

In September 1997, McClure was informed by her supervisor that
a review of medical evidence and air quality findings indicated that
her workplace did not constitute a health risk. McClure was also
informed that her work-space was moved to an enclosed area with a
separate air conditioner/heater, an air cleaner, and no partitions. She
was instructed to return to work on October 20, 1997, or be consid-
ered absent without leave. By letter dated November 3, 1997,
McClure informed the Army that she was not returning to work
unless the Hoffman II building was cleaned. Instead of returning to
work, McClure accepted employment at a private employer located
closer to home. She did not have her physician approve her new work
environment nor is there any evidence regarding the steps, if any,
McClure took to insure that her new place of employment would not
present a health risk.

Meanwhile, a series of tests and surveys were conducted on
McClure's eighth floor work-space to determine the air quality. In
_________________________________________________________________
gist. Dr. Ein, an allergist, stated that McClure had rhinitis and sinusitis
that was subjectively severe but objectively mild. Ein found that all tests
for pollens and allergic molds were non-reactive. Although he suggested
that McClure return to work, he did not offer an opinion as to the cause
of her symptoms. Dr. Smith, an allergist and immunologist, who, in addi-
tion to examining McClure, reviewed the medical evidence, found that
McClure's symptoms did not relate to her past workplace exposure.

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December 1994, the work-space was found to have inadequate venti-
lation and an excessive fungal level. A December 1995 survey
showed that there was a lack of significant air flow to the work-space,
but the fungal level was low and the total dust level was nearly non-
detectable. The survey included a recommendation that more outside
air be provided to the work-space. A June 1996 survey showed that
ventilation needed to be improved, but in all other respects, the work-
space was found to be typical of office environments. An April 1997
survey showed that the ventilation system still needed improvement
in order to improve the temperature and decrease the presence of car-
bon monoxide, but the presence of fungi and microbes was low.

Based on the April 1997 survey and a consultation with persons
conducting the survey, the Army decided that window fan coil units,
which were generally turned off by employees working near the units,
were to remain on in order to maximize the quantity of outside air
introduced into the work-space and to reduce carbon monoxide levels.

The district court found that McClure did not present any evidence
that she was disabled outside of the original eighth floor work envi-
ronment in the Hoffman II building. The court further found that there
was no evidence that McClure could not function in any office envi-
ronment. The court also found that the Army accommodated
McClure's condition beyond reasonable expectations.

We review de novo the district court's decision to grant the Army
summary judgment. See Halperin v. Abacus Tech. Corp., 128 F.3d
191, 196 (4th Cir. 1997). Summary judgment is appropriate only "if
the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genu-
ine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(c). The evidence
of the non-moving party is to be believed and all justifiable inferences
must be drawn in her favor. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).

We apply the familiar proof scheme developed in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), to claims brought
under the Rehabilitation Act. See Ennis v. National Ass'n of Business
& Educ. Radio, Inc., 53 F.3d 55, 57-58 (4th Cir. 1995). Under that

                     5
scheme, the plaintiff must first establish a prima facie case that
creates a presumption of discrimination. The burden of production
shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the challenged employment decision. See St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993).

To establish a prima facie case under the Rehabilitation Act,
McClure must show that she has a disability, is otherwise qualified
for the job, and that she was excluded from employment or a job ben-
efit because of her disability. See Doe v. University of Md. Med. Sys.
Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). We find that McClure
failed to establish a prima facie case.

We agree with the district court that McClure failed to establish
that she was disabled outside of the eighth floor Hoffman II environ-
ment as it existed during renovations in February 1995. An individual
with a disability is a person who has a physical or mental impairment
which substantially limits one or more of her major life activities. See
29 U.S.C.A. § 705(20)(B)(i) (West 1999). A major life activity refers
to basic functions, such as "caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working." 29 C.F.R. § 1630.2(h)(2)(i) (1998).

          The following factors should be considered in determining
          whether an individual is substantially limited in a major life
          activity:

          (i) The nature and severity of the impairment;

          (ii) The duration or expected duration of the impairment;
          and

          (iii) The permanent or long term impact, or the expected
          permanent or long term impact of or resulting from the
          impairment.

29 C.F.R. § 1630.2(j)(2). The medical evidence shows that if
McClure was ever substantially limited, it was only when she was
working on the eighth floor of the Hoffman II building during renova-

                    6
tions. The severity of the impairment subsided once she left the eighth
floor. So long as she was not working in that environment, McClure
was not suffering from an impairment that limited life activities. She
was able to work on the first floor of the Hoffman II building without
an adverse reaction related to the environment. McClure also accepted
employment elsewhere without any documented attempt to survey the
workplace environment for the possibility of health risks. Further-
more, air quality surveys showed a decrease in fungi and microbes in
the eighth floor area leading to the conclusion that it was unlikely that
the eighth floor continued to pose a health risk. There is no evidence
that her new eighth floor office would have caused the type of health
problems that occurred in the past.

We also find that other than McClure's own contentions, there was
no evidence that McClure's job could be performed at home or at
another location or that she could be transferred to another position
for which she was qualified. Furthermore, the Army took several rea-
sonable steps to accommodate McClure. Her work-space was moved
to an enclosed area, she was provided an air conditioner and air filter,
and a policy was instituted whereby all eighth floor air units were to
remain on during work hours. There was no evidence that McClure
would have recurring symptoms in her new office space or be unable
to perform her job. Accordingly, we find that McClure failed to estab-
lish a genuine issue as to any material fact and the district court judg-
ment granting summary judgment was proper.

We affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
in the decisional process.

AFFIRMED

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