Case: 23-10742 Document: 48-1 Page: 1 Date Filed: 04/08/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10742 Summary Calendar FILED ____________ April 8, 2024 Lyle W. Cayce Richard Leroy Luft, Clerk Plaintiff—Appellant, versus Department of the Army, Defendant—Appellee. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22-CV-289 ______________________________ Before Smith, Higginson, and Engelhardt, Circuit Judges.

Per Curiam: * Plaintiff-Appellant Richard Luft previously worked as a civilian em- ployee—an architect—of the United States Army Corps of Engineers (“the Corps”). In July 2016, he was promoted from a GS-11 position to a GS-12 position. Dissatisfied with Luft’s performance in the new position, Luft’s supervisor placed him on an informal performance improvement plan in _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-10742 Document: 48-1 Page: 2 Date Filed: 04/08/2024

No. 23-10742

November 2019. The informal plan was replaced by a formal performance improvement plan in July 2020. On December 3, 2020, the Corps terminated Luft’s employment on grounds of “unsatisfactory performance.” See 5 U.S.C. §§ 4301–4305.

Luft timely appealed the Corps’ decision to the Merit Systems Pro- tection Board (“MSPB”), claiming that his removal was unjust because his work had been unfairly judged and alleging, as an affirmative defense, that his supervisor had discriminated against him based on his disability. See 5 U.S.C. § 7702. After compiling a comprehensive evidentiary record and conducting a hearing, the ALJ issued a forty-page decision that considered and rejected Luft’s claims. The ALJ found substantial evidence to support the Corps’ conclusion that Luft’s job performance was unacceptable and no evidence of disparate treatment or lack of reasonable accommodation.

Thereafter, Luft, proceeding pro se, sought judicial review of the MSPB’s determination that the Corps’ termination of his employment was proper, and claimed that the Corps’ action was discriminatory and prohibited by the Rehabilitation Act, 29 U.S.C. § 791, et seq. Because the Federal Circuit is empowered to review MSPB decisions on civil service claims, but lacks au- thority over claims arising under antidiscrimination laws, judicial review in such “mixed” cases is provided by federal district courts. See 5 U.S.C. § 7702 (e)(1)(b); 5 U.S.C. § 7703(b)(1)(A), (b)(2), (c); Kloeckner v. Solis, 568 U.S. 41, 56 (2012); Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 432 (2017); Blake v. Dep’t of Air Force, 794 F.2d 170, 172 (5th Cir. 1986).

The district court granted summary judgment in the Corps’ favor and dismissed the case with prejudice, reasoning that the MSPB’s decision was not arbitrary or capricious, and is supported by substantial evidence in the record. Additionally, the court concluded, Luft had not borne his summary

Case: 23-10742 Document: 48-1 Page: 3 Date Filed: 04/08/2024

No. 23-10742

judgment evidentiary burden relative to his disability discrimination claim.

This appeal followed.

We “review[] non-discrimination claims presented to the MSPB based on the administrative record ‘and will uphold the [MSPB’s] determi- nations unless they are clearly arbitrary and capricious, unsupported by sub- stantial evidence or otherwise not in accordance with law.’” Williams v. Wynne, 533 F.3d 360, 373 (5th Cir. 2008) (quoting Aldrup v. Caldera, 274 F.3d 282, 286-87 (5th Cir. 2001)). Our review of the district court’s sum- mary judgment dismissal of Luft’s discrimination claim is de novo. Aldrup, 274 F.3d at 285-86 (5th Cir. 2001)).

Having carefully reviewed the record, applicable law, and the parties’ submissions, we find no reversible error in the district court’s rulings. As outlined in the ALJ’s lengthy and careful analysis of the evidence and con- trolling legal standards, the MSPB’s decision upholding Luft’s removal for unsatisfactory performance is supported by substantial evidence. Nor has the Corps’ employment decision been shown to be arbitrary or capricious. And, as the district court reasoned, Luft’s evidentiary showing relative to his dis- crimination claim—consisting primarily of his own unsubstantiated asser- tions of the quality of his work and subjective disagreement with his supervi- sor’s and team members’ work methods and expectations—falls far short of establishing the existence of triable disputes regarding the reason his employ- ment was terminated.

Accordingly, the judgment of the district court is AFFIRMED.