## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_______________ No. 05-3243

_______________ Sammie Lewis, Appellant,

v. Mike Johanns, Secretary, U.S. Department of Agriculture, Appellee. * * * * * * * * * * Appeals from the United States District Court for the Eastern District of Arkansas. [UNPUBLISHED]

_______________ No. 05-3256

_______________ Jackie E. Stevens, Appellant,

v. Mike Johanns, Secretary, U.S. Department of Agriculture, Appellee. * * * * * * * * * *-2- _______________ No. 05-3257

_______________ Danny Harpole, Appellant,

v. Mike Johanns, Secretary, U.S. Department of Agriculture; David Orr, in his official capacity as Deputy Director-Field Management Division; James Decker, Jr., in his official capacity as Industrial Specialist; Richard Pforr, individually and in his official capacity as Supervisory Industrial Specialist; Clyde Steves, individually and in his official capacity as Field Office Manager, Stuttgart, Arkansas, Appellees. * * * * * * * * * * * * * * * * * * * * *

________________ Submitted: April 19, 2006 Filed: May 10, 2006

________________ Before MURPHY, MELLOY and GRUENDER, Circuit Judges.

________________ PER CURIAM.1 The Honorable James M. Moody, United St ates District Judge for the Eastern District of Arkansas. -3- Danny Harpole, Jackie E. Stevens and Sammie Lewis appeal from a final order of the district court 1 granting summary judgment in an employment discrimination action in favor of their employer, the United States Department of Agriculture (“USDA”).
Harpole, Stevens and Lewis are employe d by the Grain Inspection, Packers and Stockyards Administration (“GIPSA”), an agency of the USDA, in Jonesboro, Arkansas. Harpole, Stevens and Lewi s and another GIPSA employee, Sandra Metheny, worked as Agricultural Commodity Graders at the GS-9 level. All four were among those who expresse d interest in the opportunity to perform a “collateral duty,” an extra part-time duty without in creased pay. Metheny was assigned the collateral duty in 1997. Methe ny was reclassified as an Industrial Scale Specialist at the GS-9 level in 2000 and was non-compe titively promoted to Industrial Scale Specialist at the GS-11 level in 2001.
Harpole, Stevens and Lewis claimed th at the USDA discriminated against them based on gender and retaliated against them for their previous filing of discrimination complaints, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. They also claimed that th e USDA discriminated against them based on age, in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. In addition, Stevens claimed that the USDA discriminated against him based on disability , in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. , which uses the standards applied under the Americans with Disabilities Act of 1990 (“ADA”), 42 § U.S.C. 12101 et seq. See 29 U.S.C. § 794(d).-4- We review de novo the grant of summary judgment, using the same standards as the district court and viewing the evid ence in the light mostfavorable to the nonmovants. Baucom v. Holiday Cos. , 428 F.3d 764, 766 (8th Cir. 2005). Having carefully reviewed the recordand the applicable legal principles, we find no reversible error in the district court’s disposition of this matter. The district court found that Lewis’s gender discrimination claim was time- barred, and that even if it was timely, it would fail along with Harpole’s and Stev ens’s gender discrimination claims. The district court held that Harpole, Stevens and Lewis each failed to establish an adverse employment action, which is an element of a prima facie case of gender discrimination. Similarly, the district c ourt held that Harpole, Stevens and Lewis failed to establish an adverse employment action with respect to their retaliation claims.
Regarding their ADEA claims, the district court assumed that Harpole, Stevens and Lewis established a prima facie case of age discriminati on. The district court also found that the USDA satisfied its burden to articulate legitimate, non-discriminatory reasons for its employment decision. Howe ver, Harpole, Stevens and Lewis failed to produce evidence sufficient to create a genuine i ssue of material fact as to whether the proffered reasons were pretextual.
Finally, the district court determined th at Stevens failed to demonstrate that he has a disability as that term is used in the ADA. We agree but note that, although cases interpreting the ADA and the Rehabilitati on Act are interchangeable because the same basic standards and definitions are used under the ADA and the Rehabilitation Act, only the Rehabilitation Act applies to federal employees, and Stevens brought his claim under the Rehabilitation Act. Ballard v. Rubin , 284 F.3d 957, 960 n.3 (8th Cir. 2002); 42 U.S.C. § 12111(5)(B)(i) (excluding fro m “employer” as used in the ADA the United States or a corporation wholly owned by the government of the United States).-5- Accordingly, we affirm the judgment of the district court based upon the well-reasoned opinion of the district court. See 8th Cir. R. 47B.

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