                                                       NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 13-2709
                               _____________

                                CESAR LEE,
                                              Appellant
                                      v.

                        LISA P. JACKSON,
       IN HER OFFICIAL CAPACITY AS ADMINISTRATOR U.S.
             ENVIROMENTAL PROTECTION AGENCY;
      UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                    ________________________

               On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                       District Court No. 2-11-cv-00195
               District Judge: The Honorable Paul S. Diamond

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               July 10, 2014

         Before: SMITH, VANASKIE, and SLOVITER, Circuit Judges

                            (Filed: July 24, 2014 )
                          _____________________

                                OPINION
                          _____________________

SMITH, Circuit Judge.

     Cesar Lee worked as an environmental engineer for the United States

Department of Environmental Protection (EPA) until his employment was
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terminated in 2009. He unsuccessfully challenged his termination before the Merit

Systems Protection Board (MSPB). Thereafter, Lee filed a complaint in the United

States District Court for the Eastern District of Pennsylvania challenging the

MSPB’s decision and adding a claim of employment discrimination under Title

VII based on his ethnicity as a Chinese American. After discovery closed, the

EPA filed a motion for summary judgment on both counts. The District Court

granted that motion. This timely appeal followed.

      The District Court exercised jurisdiction under 5 U.S.C. § 7703(b)(2). We

have appellate jurisdiction under 28 U.S.C. § 1291. Lee challenges only the

District Court’s order upholding the MSPB’s decision. “We review the agency

decision on the administrative record to determine whether it is arbitrary,

capricious, an abuse of discretion, or otherwise unsupported by law or substantial

evidence.” Makky v. Chertoff, 541 F.3d 205, 211 (3d Cir. 2008) (citing 5 U.S.C. §

7703(c)). “Substantial evidence is more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Consolid. Edison Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229

(1938).

      According to Lee, there are several reasons the MSPB’s decision should be

set aside.   First, he contends that the MSPB’s decision is not supported by

substantial evidence because the EPA failed to show his performance was

                                        2
unacceptable.      Second, Lee submits that substantial evidence is lacking because

the EPA failed to introduce the spreadsheets, data entry forms and computer

screenshots on which the EPA’s allegations of substandard performance were

based. Third, Lee argues that his termination should be set aside because the EPA

failed to establish that he knew of the overriding importance of the tasks set out for

him in the performance improvement plan (PIP).          Fourth, Lee challenges the

termination on procedural grounds, arguing that the EPA improperly required that

he meet more “critical elements” in his PIP than permitted by the collective

bargaining agreement and that it terminated him for an unacceptable performance

during an appraisal period of less than one year contrary to 5 U.S.C. § 4303(c)(2).

      Our review compels the conclusion that the EPA’s decision to terminate Lee

is supported by substantial evidence. Indeed, the District Court’s well-reasoned

decision explains not only why there is substantial evidence supporting the EPA’s

decision to terminate Lee, but also why Lee’s other arguments lack merit.

Accordingly, we will affirm for substantially the reasons stated in the District

Court’s opinion.




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