UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

FRANCOIS BOYE,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

DC-0432-13-0338-I-1

DATE: September 11, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michael L. Spekter, Esquire, Washington, D.C., for the appellant.

Ralph C. Conte, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed the agency’s performance-based removal action. Generally, we grant 

petitions such as this one only when: the initial decision contains erroneous 

findings of material fact; the initial decision is based on an erroneous 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the judge’s rulings during either the course of the appeal or 

the initial decision were not consistent with required procedures or involved an 

abuse of discretion, and the resulting error affected the outcome of the case; or 

new and material evidence or legal argument is available that, despite the 

petitioner’s due diligence, was not available when the record closed. See Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, and based on the following 

points and authorities, we conclude that the petitioner has not established any 

basis under section 1201.115 for granting the petition for review. Therefore, we 

DENY the petition for review. Except as modified by the analysis of the 

appellant’s age discrimination and retaliation claims, we AFFIRM the initial 

decision.

BACKGROUND

¶2 Effective January 27, 2013, the agency removed the appellant from his 

position as a GS-14 International Economist for unacceptable performance in 

three critical elements of his performance standards. Initial Appeal File (IAF), 

Tab 7 at 17, 20-27. He consequently filed an appeal alleging that the agency 

failed to provide him with a reasonable opportunity to improve and that his 

performance was not deficient as charged in the notice of proposed removal. 

IAF, Tab 1 at 5, Tab 16 at 4-8. He also claimed that the agency discriminated 

against him on the basis of his age and retaliated against him for engaging in

prior equal employment opportunity activity when it removed him. IAF, Tab 16 

at 9. 

¶3 After holding the requested hearing, the administrative judge issued an 

initial decision affirming the removal action. IAF, Tab 1 at 2, Tab 24, Initial 

Decision (ID) at 1, 9. She found that the agency carried its burden of showing 

that the appellant’s performance remained deficient in the three critical elements 
3

relied on by the agency and that it provided him with a reasonable opportunity to 

improve. ID at 5-13. She also found that the appellant failed to meet his burden 

of proving his age discrimination and retaliation claims. ID at 13-16. 

¶4 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 3. The agency has filed a response in opposition, PFR File, Tab 8, to 

which the appellant has replied, PFR File, Tab 9.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 For the agency to prevail in this appeal, it must establish by substantial 

evidence, in relevant part, that the agency warned the appellant of the 

inadequacies of his performance during the appraisal period and gave him an 

adequate opportunity to improve and, after an adequate improvement period, his 

performance remained unacceptable in at least one critical element. See Towne v. 

Department of the Air Force, 120 M.S.P.R. 239, ¶ 6 (2013). Substantial evidence 

is the “degree of relevant evidence that a reasonable person, considering the 

record as a whole, might accept as adequate to support a conclusion, even though 

other reasonable persons might disagree.” 5 C.F.R. § 1201.56(c)(1). Substantial 

evidence is a lesser standard of proof than preponderance of the evidence and, to

meet this standard, the agency’s evidence need not be more persuasive than that 

of the appellant. Towne, 120 M.S.P.R. 239, ¶ 6.

¶6 On review, the appellant claims that the administrative judge erred in 

finding that the agency afforded him an adequate improvement period. PFR File, 

Tab 3 at 9-15. Specifically, he claims that the administrative judge wrongfully 

found that the agency provided him with writing samples during the performance 

improvement plan (PIP) and that, without proper writing samples and other 

specific prior guidance, he was unable to predict what his supervisors expected 

for each assignment. Id. at 9-10, 12-15. Even if the agency did not provide the 

appellant with writing samples as he alleges, there is ample evidence in the record 

to support the administrative judge’s finding that the agency proved by 
4

substantial evidence that it afforded him a reasonable opportunity to improve his 

performance during the 90-day PIP period, including providing him with: 

(1) lengthy and specific examples of the ways in which his performance had been 

deficient during the rating period; (2) templates and guidelines used for all 

written work product in the office; and (3) one-on-one meetings and discussions 

with his supervisor every 2 weeks during the PIP period.

2

 ID at 5-7. Moreover, 

as the administrative judge found, the level of guidance and instruction the 

appellant claimed he should have received throughout the duration of the PIP ran 

directly contrary to the expectations of someone, such as the appellant, who was

at the top of his GS-14 career ladder position, ID at 13, and, even if the appellant 

previously had not been assigned the kinds of assignments he was tasked to 

perform during the PIP, it was certainly reasonable to expect him to be capable of 

writing in a clear and organized manner given the requirements of his position 

description and performance plan, ID at 11; IAF, Tab 8 at 138-39; see Satlin v. 

Department of Veterans Affairs, 60 M.S.P.R. 218, 225 (1993) (the administrative 

judge properly considered the appellant’s length of service and experience in 

concluding that the appellant had received both adequate instruction and time in 

which to demonstrate improvement); see also Lee v. Environmental Protection 

Agency, 115 M.S.P.R. 533, ¶ 32 (2010) (in determining whether an agency has 

afforded an employee a reasonable opportunity to demonstrate acceptable 

performance, relevant factors include the nature of the duties and responsibilities 

of the employee’s position, the performance deficiencies involved, and the 

 2 The appellant argues that he was not provided a reasonable opportunity to improve 

because he only had one-on-one meetings with his supervisor throughout the duration of 

the PIP and not with his supervisor’s deputy, who edited two of his assignments during 

the PIP period. PFR File, Tab 3 at 10-11. We find no error here. Although the 

applicable regulations governing performance-based actions state that “as part of the 

employee’s opportunity to demonstrate acceptable performance, the agency shall offer 

assistance to the employee in improving unacceptable performance,” there is no 

mechanical requirement regarding the form of this assistance. 5 C.F.R. § 432.104; see 

Gjersvold v. Department of the Treasury, 68 M.S.P.R. 331, 335-36 (1995). 
5

amount of time that is sufficient to provide the employee with an opportunity to 

demonstrate acceptable performance). 

¶7 The appellant additionally argues that the administrative judge erred in 

finding that his performance was unacceptable. PFR File, Tab 3 at 15-22. He 

argues that the administrative judge failed to thoroughly review the record, 

including the hearing testimony, his PIP assignments, and his response to the 

notice of proposed removal. Id. at 15-17, 19-22. He also argues that the 

administrative judge erred in determining that the agency officials who testified 

were credible because they did not testify consistently at the hearing and in their 

deposition testimony. 3

 Id. at 10, 20-22. We have reviewed the record and find 

that the appellant’s arguments constitute mere disagreement with the 

administrative judge’s explained findings of fact and credibility determinations, 

which are supported by the record and entitled to deference. ID at 5-13; 

see Diggs v. Department of Housing & Urban Development, 114 M.S.P.R. 464, 

¶ 8 (2010) (the Board must give deference to an administrative judge’s credibility 

determinations when they are based, explicitly or implicitly, on the observation of 

the demeanor of witnesses testifying at a hearing; the Board may overturn such 

determinations only when it has sufficiently sound reasons for doing so).4

 

Significantly, contrary to the appellant’s arguments, the record supports the 

administrative judge’s finding that the agency proved by substantial evidence that 

his performance remained deficient in the three critical elements relied on by the 

 3

 The appellant cites to specific pages of deposition testimony in support of his 

argument. PFR File, Tab 3 at 10-11, 15, 18. Although the appellant indicated in his 

prehearing statement that he attached portions of his supervisor’s deposition transcript 

for impeachment purposes, there are no pages of text attached and we, therefore, are 

unable to compare testimonies. IAF, Tab 16 at 12, 192-93. Concerning the appellant’s 

argument regarding inconsistencies in the hearing testimony, we find his argument 

unpersuasive.

4 Although the administrative judge did not make any explicit demeanor-based 

credibility determinations in the initial decision, she heard live testimony, and her 

credibility determinations must be deemed to be at least implicitly based upon witness 

demeanor. See Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009).
6

agency. ID at 12. As evidenced by the appellant’s assignments during the PIP

period, his drafts required substantial revisions, contained grammatical errors, 

and, at times, were difficult to understand. IAF, Tab 8 at 24-123. Further, we 

discern no reason to disturb the administrative judge’s finding that the kinds of 

revisions necessary to his written work went far beyond what his supervisors 

needed to provide to any other economist at his grade level and length of 

experience. ID at 11; Hearing Transcript, July 9, 2013, at 81-83 (testimony of the 

appellant’s supervisor), 152-56 (testimony of the supervisor’s deputy). 

Accordingly, we agree with the administrative judge that the agency met its 

burden concerning the adequacy of the appellant’s performance. 

¶8 In analyzing the disparate treatment theory of the appellant’s age 

discrimination claim, the administrative judge relied on Gross v. FBL Financial 

Services, Inc., 557 U.S. 167, 180 (2009), to find that the appellant did not prove 

that his age was the “but for” cause of the PIP and resulting removal. ID at 

13-15. The Board, however, has held that a federal employee, unlike the private 

sector employee in Gross, may prove age discrimination by establishing that age 

was “a factor” in the challenged personnel action even if it was not the “but-for” 

cause of that action. Wingate v. U.S. Postal Service, 118 M.S.P.R. 566, ¶ 7 

(2012). Because the factual record is fully developed on this issue and we do not 

base our finding on witness demeanor, we need not remand this claim for further 

adjudication. Spahn v. Department of Justice, 93 M.S.P.R. 195, ¶ 36 n.10 (2003). 

Based on the existing record, and for the reasons contained in the initial decision, 

we find that the appellant did not meet his burden of proving that age was “a 

factor” in the agency’s decision to either place the appellant on a PIP or 

ultimately remove him. ID at 13-15.

¶9 In analyzing the appellant’s retaliation claim, the administrative judge

applied a burden-shifting analysis and found that the appellant failed to establish 

a prima facie case of retaliation because he did not establish a nexus between his 

protected activity and his placement on the PIP and ultimate removal. ID at 
7

15-16. However, where, as here, the case has gone to a hearing and the 

evidentiary record is complete, the administrative judge will not inquire into 

whether the action under review could have been retaliatory, whether the 

appellant has made out a prima facie case of retaliation, or whether some other 

threshold of proof has been met. Simien v. U.S. Postal Service, 99 M.S.P.R. 237, 

¶ 28 (2005). Rather, the inquiry proceeds to the ultimate question, which is 

whether, upon weighing the evidence presented by both parties, the appellant has 

met his burden of proving retaliation. Id. The Board has stated that an appellant 

may meet this burden by providing circumstantial evidence showing a 

“convincing mosaic” of retaliation against him. Rhee v. Department of the 

Treasury, 117 M.S.P.R. 640, ¶ 22 (2012). Based on the existing record, and for 

the reasons contained in the initial decision, we find that that the appellant did not 

meet his burden. ID at 15-16.

¶10 In finding that the appellant failed to meet his burden on his retaliation 

claim, the administrative judge found that the agency did not prejudge the 

appellant’s performance during the PIP period. ID at 16. The appellant 

challenges this finding on review, arguing that his placement on the PIP was 

“merely a sham” because the outcome was predetermined by the agency. PFR 

File, Tab 3 at 22. He relies on an email message written by his supervisor, the 

proposing official, in which she stated 2 weeks prior to the end date of the PIP

period that the appellant’s most recent work product had “solidified [her] decision 

100%.” Id.; IAF, Tab 16 at 122. As the administrative judge properly noted, 

however, the PIP had already lasted over 2 months and his supervisor’s 

conclusion that he had not passed the PIP could hardly be called premature given 

the unsatisfactory work products he had already submitted. ID at 16; cf. 

Thompson v. Farm Credit Administration, 51 M.S.P.R. 569, 579 (1991) (the 

agency did not afford the appellant a reasonable opportunity to improve where the 

appellant’s supervisors, by their actions before, during, and after the performance 

improvement period revealed their predetermination that he was going to fail). 
8

Moreover, the appellant has not set forth any allegation that the deciding official 

prejudged the outcome of his notice of proposed removal and the administrative 

judge found, and we discern no basis to disturb, that the deciding official’s 

review of the evidence was thorough, meticulous, and detailed, his conclusion 

that the appellant’s performance warranted removal was reasonable, and nothing 

in the record or his testimony in any way suggested that he was motivated by 

retaliation or discrimination. ID at 13. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented and modified by this Final Order, 

constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 
9

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 

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board