                           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             THIS FINAL ORDER IS NONPRECEDENTIAL *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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                       2

     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
                                                                                     3

     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
                                                                                      4

     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.
                                                                                     5

¶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
                                                                                    6

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.
