Michael A. Glover, Plaintiff-appellant, v. Sheila E. Widnall, Secretary of the United States Departmentof the Air Force, Defendant-appellee, 68 F.3d 483 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff appeals the district court's entry of summary judgment in the defendant agency's favor on his claims brought under 29 U.S.C. 791 (Rehabilitation Act), 42 U.S.C. 20003-3(a) (Title VII), and 29 C.F.R. 1613.701-1613.709, after the Merit Systems Protection Board (MSPB) upheld the agency's decision to terminate his employment. We affirm.

The parties are familiar with the facts; therefore, we do not repeat them here. On appeal, plaintiff claims there existed disputed material facts on the issue of whether plaintiff had rejected the agency's job offer, thus precluding summary judgment on his claims of disability discrimination and retaliation. Plaintiff also asserts that the agency had a duty under its regulations and 29 C.F.R. 1613.701-1613.709 reasonably to accommodate plaintiff due to his disability by finding him another position in the Air Force.

Even though plaintiff's case was decided by the MSPB, we review his claims de novo, rather than under the more deferential standard applied to agency review, because his claims allege discrimination. See Williams v. Rice, 983 F.2d 177, 179-80 (10th Cir. 1993) (discussing procedure for "mixed case" in which both discrimination and nondiscrimination claims are alleged). Thus, our de novo review of the summary judgment order is under the same standard applied by the district court: whether the evidence, viewed in the light most favorable to the nonmoving party, presents a disagreement sufficient to mandate submission to a jury or "whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); accord Panis v. Mission Hills Bank, 60 F.3d 1486, 1489-90 (10th Cir. 1995).

We have reviewed the briefs and appendices submitted by the parties, and have considered plaintiff's arguments in light of those materials and the applicable law. We affirm the district court's entry of judgment in favor of the defendant agency for substantially the reasons stated in the district court's order dated July 29, 1994. Defendant's request for attorney's fees for filing a frivolous appeal is denied.

The judgment of the United States District Court for the District of Utah is AFFIRMED.