The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENOIT BROOKENS, DOCKET NUMBER
Appellant, CB-7121-13-0012-V-1
v.
DEPARTMENT OF LABOR, DATE: December 16, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Eleanor J. Lauderdale, Esquire, Washington, D.C., for the appellant.
Rolando Valdez, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 Pursuant to the Board's instructions, the administrative judge issued a
September 5, 2014 recommendation on the appellant’s allegations of
discrimination based on age and race and on the appellant’s allegations of
*
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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retaliation for engaging in union activity. For the reasons set forth below, we
adopt the administrative judge’s findings.
BACKGROUND AND ANALYSIS
¶2 The pertinent background for this case is set forth in the Board’s Opinion
and Order forwarding the matter to the regional office for an addendum
proceeding on the issues of discrimination based on age and race and retaliation
for engaging in union activity. Brookens v. Department of Labor, 120 M.S.P.R.
678 (2014). The Board deferred to the arbitrator’s finding that the appellant’s
removal for unsatisfactory performance, effected under chapter 43 of the Civil
Service Reform Act, was fully supported by the evidence and did not violate the
relevant collective bargaining agreement. Id., ¶¶ 7-14. However, because the
arbitrator did not cite any legal standard or analytical framework in finding that
the appellant failed to prove his claims of discrimination and retaliation, the
Board granted the appellant’s request for review of the arbitrator’s decision on
those issues, and forwarded the discrimination and retaliation claims to the
Washington Regional Office (WRO) for further adjudication. Id., ¶¶ 15-17.
¶3 Based on the evidence and argument submitted by the parties, an
administrative judge in the WRO issued a recommended decision finding that the
appellant failed to meet his burden to prove discrimination and/or retaliation.
Brookens v. Department of Labor, MSPB Docket No. CB-7121-13-0012-H-1, Tab
11, Recommended Decision (RD). The administrative judge weighed the
appellant’s thirteen allegations of fact to determine whether together they showed
a pattern of discrimination. RD at 4-5. He found that, as the appellant admits, he
was the only GS-12 international economist in his division and thus was not
similarly situated to other economists in his division or treated disparately. RD at
6. He also found that, although the supervisor who took the removal action
against the appellant was newly hired in the division, there is no evidence that the
supervisor was hired to take action against the appellant, and, in any event, the
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record shows that the appellant had performance problems before the supervisor
was hired. RD at 6-8. The administrative judge found additionally that the
appellant presented no evidence that the supervisor harbored any discriminatory
motive or that he acted at the prompting of anyone who did. RD at 9. The
administrative judge found that, considering the record as a whole, the agency
articulated a legitimate nondiscriminatory reason for its action, i.e., the
appellant’s poor performance, and the appellant produced no evidence that the
agency’s explanation for its action was pretext for discrimination on the basis of
age or race. See Redd v. U.S. Postal Service, 101 M.S.P.R. 182, ¶ 7 (2006)
(citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)).
¶4 The administrative judge found further that the appellant failed to prove
that his removal was effected in reprisal for the appellant’s having engaged in
union representational activity, which is protected under 5 U.S.C. § 2302(b)(9).
RD at 12-16. He noted that the appellant had been reinstated in 2001, based on a
grievance claiming removal in retaliation for union activity. He found that the
appellant failed to describe a nexus between that grievance and the current
proposing or deciding officials. RD at 14. He found that the appellant failed to
identify any events that suggest suspicious timing of the removal action with
respect to the appellant’s union activities or that present any evidence that
similarly-situated employees received more favorable treatment. RD at 15-16.
He found that, weighing all of the evidence, the appellant failed to provide
evidence showing a convincing mosaic of retaliation against him. See Fitzgerald
v. Department of Homeland Security, 107 M.S.P.R. 666, ¶ 20 (2008).
¶5 After he issued the Recommended Decision, the administrative judge
informed the parties that the Recommendation would be forwarded back to the
Board and that parties could file exceptions to the Recommendation with the
Clerk of the Board within 20 days of the issuance of the Recommendation, or by
September 25, 2014. Brookens v. Department of Labor, MSPB Docket No.
CB-7121-13-0012-H-1, Tab 13. On September 26, 2014, the appellant’s
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representative requested an extension of time (EOT) to file exceptions to the
administrative judge’s Recommended Decision. Brookens v. Department of
Labor, MSPB Docket No. CB-7121713-0012-V-1, Tab 32. The Board granted the
request, giving the appellant until October 20, 2014, to file exceptions. Id., Tab
33. On October 21, 2014, after the expiration of the extension of time to file
exceptions, the appellant’s representative requested an additional EOT. Id., Tab
35. The Board denied the request for an additional EOT because it was filed after
the due date for the filing of exceptions. Id. The appellant’s representative has
filed three responses to the denial, claiming that she lost the exceptions that she
had drawn up because of computer problems. Id., Tabs 36-38.
¶6 The Board’s regulations provide that requests for an EOT must be filed on
or before the date that the pleading is due and that the motion must be
accompanied by an affidavit or sworn statement. See 5 C.F.R. § 1201.114(f).
Here, as noted, the appellant’s EOT request was filed after the date that the
pleading was due and was not accompanied by an affidavit or sworn statement.
Further, even if the appellant’s representative’s alleged computer problems
interfered with her preparation of exceptions, there is no assertion that they
interfered with her ability to timely file an EOT request. Accordingly, we find
that the appellant’s representative’s objections to the denial of her EOT request
are unavailing.
¶7 Absent exceptions to the administrative judge’s Recommended Decision,
and based on our review of his decision, we adopt the Recommendation. The
appellant failed to prove his affirmative defenses of discrimination on the bases
of age or race and failed to establish that the agency’s action constituted
retaliation for his union activity in violation of 5 U.S.C. § 2302(b)(9). As a
result, we deny the appellant’s request for review of the arbitrator’s decision
affirming the agency’s removal action.
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¶8 This is the final decision of the Merit Systems Protection Board on the
appellant’s request for arbitration review. Title 5 of the Code of Federal
Regulations, section 1201.113(c) ( 5 C.F.R. § 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
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discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.