Kelliher v. Veneman

[PUBLISH] Non-Argument Calendar John Kelliher alleges that his former employer, the United States Department of Agriculture (""USDA""), committed age and race discrimination in violation of Title VII of the Civil Rights Act of 1964 (""Title VII""), 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act (""ADEA""), 29 U.S.C. § 633a, et seq., when they terminated his employment and that his discharge was in retaliation for his filing of a complaint with the Equal Opportunity Employment Commission (""EEOC""). As a federal civil servant, Kelliher also claimed unlawful termination under 5 U.S.C. § 7513 and that his discharge was in violation of the Whistleblower Protection Act (""WPA""), 5 U.S.C. § 2302. Kelliher initially brought his claims before the Merit Systems Protection Board (""MSPB"" or ""Board""). He then appealed to the district court which granted the USDA's motion for summary judgment on the discrimination claims and affirmed the MSPB determinations as to his civil service claims on the record. Kelliher appeals the court's grant of summary judgment and challenges the standard of review applied by the district court in affirming the MSPB's opinion. The question of the correct standard of review to be applied by district courts reviewing MSPB determinations for non-discrimination claims is one of first impression in this Circuit and constitutes the main issue before the court in this appeal.