           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 5, 2009

                                       No. 08-31058                    Charles R. Fulbruge III
                                                                               Clerk

MARK R MALOUSE

                                                   Plaintiff-Appellant
v.

DONALD C WINTER

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:07-CV-3590


Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff Mark Malouse appeals the district court’s grant of summary
judgment in favor of Defendant Donald Winter, as Secretary of the Navy, on
Plaintiff’s challenge to the decision of the Merit Systems Protection Board
affirming his removal from employment as a civilian pharmacist at the Naval
Branch Health Clinic in Gulfport, Mississippi, and on his several discrimination
and retaliation claims under federal law.              Reviewing the record de novo,
Williams v. Wynne, 533 F.3d 360, 365 (5th Cir. 2008), we AFFIRM as follows.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                   No. 08-31058

1. We agree with the district court that the administrative law judge (“ALJ”)
acted well within its discretion when excluding three witnesses proffered by
Plaintiff whose testimony was irrelevant, immaterial, or cumulative. See Guise
v. Dep’t of Justice, 330 F.3d 1376, 1379 (Fed. Cir. 2003). Plaintiff also failed to
submit competent summary judgment evidence below demonstrating that he
moved to compel the agency to identify and produce certain documents and that
the ALJ denied the motion. See, e.g., Ragas v. Tenn. Gas Pipeline Co., 136 F.3d
455, 458 (5th Cir. 1998) (“[U]nsubstantiated assertions are not competent
summary judgment evidence.”). Without such proof, Plaintiff cannot establish
that the ALJ violated his right to discovery or to due process by denying a
motion to compel. See, e.g., Tiffany v. Dep’t of Navy, 795 F.2d 67, 69 (Fed. Cir.
1986) (filing a motion to compel is a prerequisite to challenging a failure to
produce discovery).
2. The district court correctly held that the Board’s affirmance of Plaintiff’s
removal was not arbitrary or capricious, unsupported by substantial evidence,
or otherwise not in accordance with the law. See Aldrup v. Caldera, 274 F.3d
282, 288 (5th Cir. 2001). We conclude that a reasonable mind would accept the
evidence presented to the ALJ as an adequate basis to conclude that Plaintiff
committed the infractions charged in the notice of removal. See Bonet v. U.S.
Postal Serv., 712 F.2d 213, 216 (5th Cir. 1983) (defining the substantial evidence
standard). Plaintiff’s attempts to downplay the seriousness of his infractions or
to shift blame to others do not affect our conclusion. Id. (holding that this court
cannot reweigh the evidence or substitute its own judgment for that of the
Board). Particularly in light of Plaintiff’s record of prior discipline, we also defer
to the ALJ’s conclusion that removal was reasonable in this case. Williams, 533
F.3d at 374.
3. Plaintiff’s contention that the district court erred in upholding the Board’s
ruling on his claims under the Whistleblower Protection Act (“WPA”), 5 U.S.C.

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                                  No. 08-31058

§ 2302, and the Uniformed Services Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. § 4311, is likewise without merit. Reviewing the ALJ’s
decision under the deferential standard applicable to these claims, see 5 U.S.C.
§ 7703(b)(2), (c) (prescribing the standard of review for all but discrimination
claims in § 7702); § 7702(a)(1)(B) (listing the covered discrimination claims,
which do not include claims under the WPA or USERRA), we decide that the
ALJ’s conclusion that the employment actions taken against Plaintiff were not
causally related to his complaint to the Joint Commission for the Accreditation
of Healthcare Organizations about a pharmacy procedure or to his military
service was not arbitrary or capricious, unsupported by substantial evidence, or
contrary to law. See, e.g., Drake v. Agency for Int’l Dev., 543 F.3d 1377, 1380
(Fed. Cir. 2008) (requiring, inter alia, a showing that the acting official took the
personnel action against the employee because of a protected disclosure to
establish a violation of the WPA); Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013
(Fed. Cir. 2001) (explaining that a plaintiff alleging a violation of USERRA must
meet an initial burden of establishing that his military service was a
“substantial or motivating” factor behind the adverse employment action).
4. Reviewing the record de novo, 5 U.S.C. § 7703(b)(2), (c), we find no evidence
suggesting the Navy’s proffered and legitimate reasons for terminating his
employment, namely, his numerous instances of misconduct and extensive
disciplinary record, are pretextual, as is required to raise a genuine issue of
material fact on Plaintiff’s retaliation and race, gender, and religious
discrimination claims under Title VII. See Nasti v. CIBA Speciality Chems.
Corp., 492 F.3d 589, 593 (5th Cir. 2007) (applying the burden-shifting framework
from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817 (1973),
to Title VII disparate treatment claims and affirming summary judgment for the
employer based on the plaintiff’s failure to demonstrate pretext); Aldrup, 274
F.3d at 286 (same framework applies to Title VII retaliation claims). Plaintiff’s

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subjective belief of discriminatory intent or retaliatory motive is insufficient. See
Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005) (holding “mere
speculation” of retaliation cannot demonstrate pretext); Byers v. Dallas Morning
News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) (rejecting plaintiff’s reliance on
subjective belief regarding discriminatory intent).
5. Even assuming, as did the district court, that Plaintiff’s claim of religious
discrimination in employment is independently actionable under the Religious
Freedom Restoration Act, 42 U.S.C. § 2000bb-1, we similarly find that Plaintiff
has failed to demonstrate that the Navy’s actions against him were causally
related to his objection on religious grounds to dispensing contraceptives instead
of his own misconduct.
      AFFIRMED.




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