Sound Check, Inc. v. American Federation

*The Honorable Richard H. Kyle, United States District Judge for the District of
Minnesota, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-1649
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Brandon D. Smith, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the District
Dan Glickman, Secretary of * of North Dakota.
Agriculture; U.S. Merit Systems *
Protection Board; U.S. Office of * [UNPUBLISHED]
Special Counsel, *
*
Appellees. *
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Submitted: February 17, 2000
Filed: February 24, 2000
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Before McMILLIAN and FAGG, Circuit Judges, and KYLE,* District Judge.
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PER CURIAM.
The Natural Resources Conservation Service removed Brandon D. Smith from
his job as a soil scientist for making false and/or misleading statements to a superior,
for conduct unbecoming a federal employee, and for failure to follow instructions. The

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Merit Systems Protection Board (MSPB) upheld Smith's removal. Smith
unsuccessfully appealed the MSPB's decision to the district court, claiming the
evidence was insufficient to support his removal, the removal violated his right to free
speech, and the removal was a reprisal against his whistleblowing activities and a result
of age, marital status, and disability discrimination.
After careful review of the record, we agree with the district court that there was
substantial evidence supporting Smith's removal. See Crawford v. Runyon, 37 F.3d
1338, 1340-41 (8th Cir. 1994). We also conclude Smith's free speech claim is properly
rejected because Smith concedes in his brief that "his concerns related to his personal
employment status" and not to matters of public concern that would constitute
protected speech. See Tedder v. Norman, 167 F.3d 1213, 1214 (8th Cir. 1999).
Finally, we conclude Smith's discrimination and retaliation claims are properly rejected
because Smith failed to present prima facie cases on both theories. See Kiel v. Select
Artificials, Inc., 169 F.3d 1131, 1135, 1136 (8th Cir.), cert. denied, 120 S. Ct. 59
(1999); Berg v. Bruce, 112 F.3d 322, 327 (8th Cir. 1997).
Because our review involves the application of established principles of law and
an extended discussion would serve no useful purpose, we affirm without additional
comment. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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