*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-50606

Summary Calendar

 

JOHN J. LOKOS,

Plaintiff-Appellant,

versus

GILBERT F. CASELLAS, chairman;

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Western District of Texas

(A-94-CV-38)

 

August 2, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

John J. Lokos appeals the judgment of the United States

District Court for the Western District of Texas. The district

court rejected Lokos' claims that his employer, the Equal

Employment Opportunity Commission, had engaged in unlawful

employment discrimination. We vacate in part and affirm in part.
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I.

John Lokos is an Attorney Examiner/Administrative Judge in the

San Antonio office of the Equal Employment Opportunity Commission.

On October 30, 1992, Lokos was placed on a performance improvement

plan for a period of ninety days due to his alleged inferior job

performance. When Lokos failed to improve his work quality, the

PIP was extended until April 9, 1993. Lokos' failure to remedy his

deficient job performance led to his demotion from GS-13 to GS-12

on July 25, 1993.

Lokos appealed the demotion to the Merit Systems Protection

Board. Lokos alleged that the demotion was unjustified and that he

was the victim of unlawful sex and age discrimination. Lokos also

alleged that the demotion was ordered in retaliation for his having

engaged in protected activity. The MSPB disagreed, rejecting

Lokos' discrimination claims. The MSPB, however, did find that

Lokos' demotion was unlawful because the Performance Appraisal and

Recognition System pursuant to which the EEOC had evaluated Lokos

violated an order of the Federal Labor Relations Authority.

On January 19, 1994, Lokos filed a petition for review in the

U.S. District Court for the Western District of Texas. Lokos

reasserted his discrimination and retaliation claims. The EEOC

asserted a counterclaim seeking a declaration that the demotion and

the PARS system upon which it was based were valid.

Lokos' sex discrimination and retaliation claims were tried to

a jury, which returned a verdict for the EEOC. Lokos' age
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discrimination claim was tried to the court, which also found in

favor of the EEOC. In addition, the district court entered

judgment for the EEOC on its counterclaim, finding that Lokos'

demotion "was proper pursuant to Chapter 43 of the Civil Service

Reform Act." Lokos now appeals. We have jurisdiction. 28 U.S.C.

§ 1291.

II.

On appeal, Lokos raises a host of arguments regarding the

district court's jurisdiction to adjudicate the EEOC's

counterclaim. The EEOC concedes error, acknowledging its limited

authority to seek the review of decisions of the MSPB pursuant to

5 U.S.C. § 7703(d). We therefore vacate that portion of the

district court's judgment regarding the EEOC's counterclaim.

Regarding his discrimination and retaliation claims, Lokos

argues that the district court erred in refusing to allow him to

examine a witness at trial. We disagree. Lokos did not object to

the district court's refusal to allow him to conduct the

examination of the witness, nor does Lokos cite any authority

establishing a represented party's constitutional right to examine

witnesses at trial.

Lokos also contests the district court's decision to exclude

the decision of an arbitrator reducing the penalty imposed on Lokos

for an earlier disciplinary infraction. Assuming without deciding

that the district court's decision to exclude the decision itself

was error, we are not persuaded that it is reversible error. The
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district court permitted several witnesses, including Lokos

himself, to testify regarding both the incident underlying the

arbitrator's decision and the arbitrator's reduction of the

disciplinary sanction. Lokos does not specify what additional

information the jury could have gleaned from the arbitrator's

decision itself. The exclusion of the arbitrator's decision was

harmless.

We therefore VACATE that portion of the district court's

judgment regarding the EEOC's counterclaim. We AFFIRM the judgment

in all other respects.