The Honorable Patrick A. Conmy, United States District Judge for the 1

District of North Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1979

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Brandon D. Smith, *

Plaintiff - Appellant, * Appeal from the United States

 v. * District of North Dakota.

Dan Glickman, Secretary, United States *

Department of Agriculture, *

Defendant - Appellee. *

*

* District Court for the

*

*

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Submitted: November 18, 1997

 Filed: March 27, 1998 

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Before BEAM, HEANEY and JOHN R. GIBSON, Circuit Judges.

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PER CURIAM.

Brandon D. Smith appeals the district court's dismissal of his

1

complaint seeking review of several adverse decisions by the Merit Systems

Protection Board. He also appeals the dismissal of his discrimination

claims based on age, disability and retaliation. We affirm.
Smith was ultimately fired in 1996; his termination is not part of this appeal. 2

-2-

Smith was employed as a Soil Scientist for the Soil Conversation

Service, United States Department of Agriculture. He worked at the Mandan

Field office in North Dakota. During 1991 and 1992, Smith filed grievances

with his agency, as well as complaints with the Equal Employment

Opportunity Commission, the Occupational Safety and Health Administration,

the Office of Inspector General, and the General Accounting office. Among

other things, Smith complained about his job assignments, performance

goals, alleged nepotism and fraud, safety violations, and failure to

accommodate his disability (sleep apnea and asthma). He also filed four

complaints with the Merit Systems Protection Board with respect to his 1991

"unacceptable" performance appraisal, a five-day suspension for

insubordination, the withholding of a within-grade salary increase, and

a 1992 "unacceptable" performance appraisal. Smith alleged these actions 2

were discriminatory based on his age (forty-two), his disability, and in

retaliation for his whistleblowing activities and filing Equal Employment

Opportunity complaints. 

In a series of decisions, the Merit Systems Review Board ruled

against Smith. Smith appealed to the district court seeking review of

these decisions. He also sued the agency for discrimination. 

The district court held there was sufficient evidence to support the

findings of the administrative law judges, and that Smith's claims of

retaliation were not supported by the record. The court further held that

a review of the Equal Employment Opportunity record did not support any

age, disability, or retaliation claims. 

We review the adverse agency action on the administrative record, and

we review the discrimination claim de novo. Crawford v. Runyon, 37 F.3d

1338, 1340 (8th Cir. 1994).
-3-

Like the district court, we must affirm a decision of the Board

unless it was "arbitrary, capricious, an abuse of discretion, procedurally

infirm, or not supported by substantial evidence." Id. at 1340-41.

Although Smith argues that his performance appraisals were tainted with

reprisal for physical handicaps, protected disclosures, and EEO complaints,

he concedes that he did not meet production goals. There is substantial

evidence to support each of the Board's decisions.

Likewise, we conclude that the court properly rejected Smith's

discrimination claims. The evidence established that the agency reasonably

accommodated Smith's known disability by reducing his workday and requiring

him to wear a filtered breathing apparatus while doing field work. See

McAdams v. United Parcel Service, Inc., 30 F.3d 1027, 1030 (8th Cir. 1994).

Smith has produced no evidence to undermine the overwhelming evidence that

the personnel actions were based on poor job performance, and not age

animus or retaliation. See Berg v. Bruce, 112 F.3d 322, 327 (8th Cir.

1997).

We affirm the district court's dismissal of Smith's complaint.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.