## 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

___________ No. 97-1979

___________ 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
*

*

___________ Submitted: November 18, 1997 Filed: March 27, 1998

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

___________ PER CURIAM. Br andon D. Smith appeals the district court's dismissal of hi s 1 complaint seeking review of several adverse deci sions by the Merit Systems Protection Board. He also appeals the dismissal of his discriminatio n 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- Sm ithwas employed as a Soil Scientist for the Soil Conversatio n Service, United States Department of Agriculture . He worked at the Mandan Field office in North Dakota. During 1991 and 1992, Smith filed grievance s wi thhis agency, as well as complaints with the Equal Employmen t Opportunity Commission, the Occupational Safety and Health Administration, the Office of Inspector General, and the General Accounting office. Among other t hings, Smith complained about his job assignments, performanc e goals, alleged nepotism and fraud, safety violations, and failure t o accommodate his disability (sleep apnea and asthma). He also filed four complaints with the Merit Systems Protection Board with respect to his 199 1 "unac ceptable" performance appraisal, a five-day suspension fo r insubordination, the withholding of a within-grade salary increase, and a 1992 "unacceptable" performance app raisal. 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 s eries of decisions, the Merit Systems Review Board rule d again st Smith. Smith appealed to the district court seeking review o f these decisions. He also sued the agency for discrimination. The district court held there was su fficient evidence to support the finding s of the administrative law judges, and that Smith's claims o f retaliation were not supported by the record. T he court further held that a review of the Equal Employment Opportunity record did not support an y age, disability, or retaliation claims. We review the adverse agency action on the administrative recor d, 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 Boar d unless it was "arbitrary, capricious, an abuse o f discretion, procedurally infi rm, or not supported by substantial evidence." Id. at 1340-41 . Althou ghSmith argues that his performance appraisals were tainted wit h 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. Likewi se, we conclude that the court properly rejected Smith' s discrimination claims. The evidence established that the agency reasonabl y accommodated Smith's known disability by reducing his workday and requirin g him to we ar a filtered breathing apparatus while doing field work. Se e 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 person nel actions were based on poor job performance, and not ag e animus o r 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.