UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DEBORAH KATZ PUESCHEL,
Plaintiff-Appellant,

v.
                                                                       No. 97-2503
RODNEY SLATER, SECRETARY,
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Robert E. Payne, District Judge.
(CA-97-148-A)

Argued: September 22, 1998

Decided: February 18, 1999

Before WILKINS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: George Michael Chuzi, KALIJARVI, CHUZI & NEW-
MAN, P.C., Washington, D.C., for Appellant. Dennis Edward Szy-
bala, Assistant United States Attorney, Alexandria, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Alex-
andria, Virginia; Sharon L. Parrish, Special Assistant United States
Attorney, Mary Madeline McCarthy, Office of the Assistant Chief
Counsel, FEDERAL AVIATION ADMINISTRATION, Jamaica,
New York, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Deborah Katz Pueschel appeals the district court's grant of sum-
mary judgment in favor of the Department of Transportation in her
action alleging discrimination in violation of Title VII, 42 U.S.C.A.
§ 2000e et seq. (West 1994 & Supp. 1998) and the Rehabilitation Act,
29 U.S.C.A. § 791 et seq. (West 1999). We affirm.

I

The facts, very briefly put forth in the light most favorable to Pues-
chel, are these. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). Pueschel, an air traffic controller employed by the Fed-
eral Aviation Administration (FAA), suffers from sarcoidosis and
asthma, conditions made worse by stress. Pueschel has filed claims
with the federal Office of Workers' Compensation Programs (OWCP)
in connection with these ailments. Her condition further requires that
she work a regular schedule, an arrangement not typically afforded to
air traffic controllers. In 1993, a team of FAA and air traffic control-
lers' union representatives proposed that Pueschel change the hours
of her shift. A discussion of her schedule induced a stress-related epi-
sode on April 5, 1994, requiring Pueschel to leave work. She has not
worked at the FAA since.

II

Pueschel alleges that the FAA discriminated against her on the
basis of her sex and disability in violation of Title VII and the Reha-

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bilitation Act. More specifically, she alleges that her supervisor
engaged in discriminatory behavior and that the FAA destroyed her
personnel records; interfered with her OWCP claims; and discrimi-
nated against her by proposing to change her work schedule. We
review a grant of summary judgment de novo. See Halperin v. Abacus
Technology Corp., 128 F.3d 191, 196 (4th Cir. 1997). Summary judg-
ment is proper "if the pleadings, depositions, answers to interrogato-
ries, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the mov-
ing party is entitled to a judgment as a matter of law." Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In decid-
ing whether there is a genuine issue of material fact and whether the
Department of Transportation is entitled to judgment as a matter of
law, Pueschel's evidence is to be believed, and all justifiable infer-
ences are to be drawn in her favor. See Anderson , 477 U.S. at 255.

Before Pueschel can succeed in her Title VII action, the statute
requires that she demonstrate that there has been discrimination in
respect of a "personnel action." 42 U.S.C.A.§ 2000e-16(a) (West
Supp. 1998). We have defined a personnel action as an employment
action that is ultimate in nature, such as hiring, firing, or promoting;
contrasted are interlocutory or immediate decisions. See Page v.
Bolger, 645 F.2d 227, 233 (4th Cir. 1981). The district court properly
asked under Page whether an "adverse employment action" occurred,
and held that the FAA had taken no such action.

At oral argument, Pueschel contended that the district court erred
in applying Page, because of Supreme Court decisions that had not
been announced at the time the district court ruled. In two Title VII
decisions, the Supreme Court asked whether the employer took "tan-
gible" employment action against the employee. Burlington Indus-
tries, Inc. v. Ellerth, 118 S.Ct. 2257, 2265, 2268-69 (1998); Faragher
v. City of Boca Raton, 118 S.Ct. 2275, 2293 (1998). "A tangible
employment action constitutes a significant change in employment
status . . . ." Burlington Industries, 118 S.Ct. at 2268.

In Pueschel's case, the choice of nomenclature makes no material
difference in outcome. The FAA's actions did not rise to the level
contemplated by either Burlington Industries or Page. The evidence
clearly indicates that Pueschel's personnel records were never

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destroyed. There is no indication that the FAA obstructed her ability
to file claims with the OWCP, and no evidence that her supervisor
discriminated against her. The FAA and her supervisor merely
required Pueschel to document her claims. Finally, Pueschel concedes
that her work schedule was still a matter of discussion between the
FAA, the air traffic controllers' union, and herself. This unrealized
proposal to Pueschel's work schedule was neither a significant change
to her employment status, nor was it an adverse personnel action. See
Burlington Industries, 118 S.Ct. at 2268; Page, 645 F.2d at 233. The
FAA is entitled to summary judgment on the Title VII claim.

III

Pueschel also challenges the district court's grant of summary
judgment on her Rehabilitation Act claim. In order to establish a
prima facie violation of the Rehabilitation Act, Pueschel must prove:
(1) that she has a disability; (2) that she is otherwise qualified for the
employment or benefit in question; and (3) that she was excluded
from the employment or benefit due to discrimination solely on the
basis of the disability. See Doe v. Univ. of Md. Med. Sys. Corp., 50
F.3d 1261, 1265 (4th Cir. 1995).

The district court assumed for summary judgment purposes that
Pueschel's health condition constitutes a disability under the Rehabili-
tation Act, and without deciding, we shall do the same. Pueschel con-
tends that the district court erred in finding that she was not a
qualified individual under the Rehabilitation Act. Equal Employment
Opportunity Commission regulations define a "qualified individual
with handicaps" as a person who, "with or without reasonable accom-
modation, can perform the essential functions of the position in ques-
tion without endangering the health and safety of the individual or
others . . . ." 29 CFR § 1614.203(a)(6) (1997).

It is uncontradicted that Pueschel's physician wrote on April 6,
1994, that until further notice, Pueschel's medical condition precluded
her from working. Pueschel has not worked for the FAA since April
5, 1994, and has not provided the FAA with notice of her availability
to work. The evidence establishes that at the time Pueschel brought
the action and throughout the litigation, her illness precluded her from
working as an air traffic controller. Consequently, the Rehabilitation

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Act imposes no liability on the Department of Transportation. In
short, she is not "otherwise qualified for employment." Doe, 50 F.3d
at 1265; 29 CFR § 1614.203(a)(6).

AFFIRMED

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