Sammie Lewis v. Mike Johanns, Secretary, U.S. Department of Agriculture

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3243
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Sammie Lewis,
Appellant,
v.
Mike Johanns, Secretary, U.S.
Department of Agriculture,
Appellee.
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Appeals from the United States
District Court for the
Eastern District of Arkansas.
[UNPUBLISHED]
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No. 05-3256
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Jackie E. Stevens,
Appellant,
v.
Mike Johanns, Secretary, U.S.
Department of Agriculture,
Appellee.
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No. 05-3257
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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
S p e c i a l i s t ; C l y d e S t e v e s ,
individually and in his official
capacity as Field Office Manager,
Stuttgart, Arkansas,
Appellees.
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Submitted: April 19, 2006
Filed: May 10, 2006
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Before MURPHY, MELLOY and GRUENDER, Circuit Judges.
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PER CURIAM.

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1The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
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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 employed by the Grain Inspection, Packers and
Stockyards Administration (“GIPSA”), an agency of the USDA, in Jonesboro,
Arkansas. Harpole, Stevens and Lewis and another GIPSA employee, Sandra
Metheny, worked as Agricultural Commodity Graders at the GS-9 level. All four
were among those who expressed interest in the opportunity to perform a “collateral
duty,” an extra part-time duty without increased pay. Metheny was assigned the
collateral duty in 1997. Metheny was reclassified as an Industrial Scale Specialist at
the GS-9 level in 2000 and was non-competitively promoted to Industrial Scale
Specialist at the GS-11 level in 2001.
Harpole, Stevens and Lewis claimed that 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 the 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).

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We review de novo the grant of summary judgment, using the same standards
as the district court and viewing the evidence in the light most favorable to the non-
movants. Baucom v. Holiday Cos., 428 F.3d 764, 766 (8th Cir. 2005). Having
carefully reviewed the record and 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 Stevens’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 court 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 discrimination. The district court also
found that the USDA satisfied its burden to articulate legitimate, non-discriminatory
reasons for its employment decision. However, Harpole, Stevens and Lewis failed to
produce evidence sufficient to create a genuine issue of material fact as to whether the
proffered reasons were pretextual.
Finally, the district court determined that 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 Rehabilitation 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 from “employer” as used in the ADA
the United States or a corporation wholly owned by the government of the United
States).

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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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