Peter J. Fitzsimmons v. Department of Treasury

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PETER J. FITZSIMMONS,
Petitioner,
v.
DEPARTMENT OF TREASURY,
Respondent.
__________________________
2011-3206
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. NY0432100212-I-1.
______________________________
Decided: February 22, 2012
______________________________
PETER J. F ITZSIMMONS , of Jersey City, New Jersey, pro
se.
JACOB A. S CHUNK , Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. D AVIDSON , Director, and BRIAN M. SIMKIN ,
Assistant Director.
__________________________

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FITZSIMMONS v. TREASURY 2
Before RADER, Chief Judge, WALLACH , Circuit Judge,
FOGEL, District Judge.1
RADER, Chief Judge.
Peter J. Fitzsimmons appeals from the Merit Systems
Protection Board (“Board”) decision affirming the Internal
Revenue Service’s (“IRS”) removal of Mr. Fitzsimmons for
performance-based reasons. Because the Board’s decision
is supported by substantial evidence and not contrary to
law, this court affirms.
I
Mr. Fitzsimmons was a revenue officer at the IRS’s
Small Business/Self Employee Division and was responsi-
ble for the management of taxpayers’ cases, along with
other tasks. On January 29, 2008, Mr. Fitzsimmons’
supervisor, Mark Newman, determined that his work
performance was unacceptable in three Critical Job
Elements (“CJEs”).
After several reviews, on July 23, 2008, Mr.
Fitzsimmons was placed on a 60-day performance im-
provement plan (“PIP”). On October 29, 2008, Mr. New-
man determined Mr. Fitzsimmons’s performance was still
unacceptable. On the same day, Mr. Fitzsimmons in-
formed another supervisor that he was diagnosed with
clinical depression and would provide a psychiatrist’s
written documentation of his condition. Mr. Fitzsimmons
also requested that his inventory be reduced for six
months and that his review occur at the end of this pe-
riod. On January 29, 2009, Mr. Fitzsimmons submitted a
“Reasonable Accommodation Request” which repeated his
request for reducing his inventory and suspending his
1 Honorable Jeremy Fogel, District Judge, United
States District Court for the Northern District of Califor-
nia, sitting by designation.

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FITZSIMMONS v. TREASURY 3
formal review for six months. On March 4, 2009, his
supervisors agreed that Mr. Fitzsimmons’s inventory
would be reduced and decided that a formal review would
not be conducted until a Federal Occupational Health
(“FOH”) physician’s assessment. On March 11, 2009, Mr.
Newman provided Mr. Fitzsimmons a memorandum,
informing him the PIP period was extended for at least an
additional 60 days, reiterated his inventory reduction,
and confirmed that an evaluation would occur after a
physician’s assessment.
On April 6, 2009, Mr. Newman issued a performance
appraisal for April 1, 2008 to March 31, 2009. The ap-
praisal rated Mr. Fitzsimmons’s performance as unac-
ceptable. However, because this appraisal was
improperly premature, it was rescinded and replaced with
documentation that Mr. Fitzsimmons was not rated
during that time.
Following the FOH physician’s assessment, on May
27, 2009, Mr. Fitzsimmons was informed that his inven-
tory would remain at the reduced level through the end of
August 2009 and that a formal review would not be
conducted until after August 31, 2009. The letter stated
the previous PIP plan was still in effect and an upcoming
review would be the final review for the PIP process.
Before his final review, Mr. Fitzsimmons requested
200 hours of advanced sick leave to begin on August 31,
2009. The agency granted his request, and Mr.
Fitzsimmons was away from work from August 31, 2009
through October 6, 2009.
Following Mr. Fitzsimmons’s return to work, Mr.
Newman performed a final review, which completed the
PIP evaluation period. Mr. Newman determined that Mr.
Fitzsimmons's performance continued to be unacceptable.
On March 1, 2010, the agency proposed to remove Mr.

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FITZSIMMONS v. TREASURY 4
Fitzsimmons from his employment for unacceptable
performance. On May 3, 2010, the agency issued a deci-
sion to remove him from his position effective May 7,
2010.
Mr. Fitzsimmons appealed to the Board. The admin-
istrative judge (“AJ”) affirmed the agency's removal
action. The AJ found that Mr. Fitzsimmons’s perform-
ance was unacceptable even after he was afforded a
reasonable opportunity to improve, that the proposed
action was properly based on events that occurred within
the year preceding the notice of proposed action, that the
erroneously-issued appraisal did not nullify the PIP
period, and that the agency had appropriately extended
the PIP period in response to Mr. Fitzsimmons’s requests.
On June 16, 2011, the Board affirmed the AJ’s decision
and denied Mr. Fitzsimmons’s petition for review. This
court has jurisdiction under 28 U.S.C. § 4324.
II
This court must affirm a decision of the Board unless
this court finds it to be “(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); Chadwell v.
MSPB, 629 F.3d 1306, 1308 (Fed. Cir. 2010). “Under the
substantial evidence standard of review, a court will not
overturn an agency decision if it is supported by such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Jacobs v. Dep’t of
Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (internal
citation omitted). “The petitioner bears the burden of
establishing error in the Board's decision.” Harris v. Dep’t
of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
“This court reviews questions of law . . . without deference

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FITZSIMMONS v. TREASURY 5
to the Board.” Carley v. Dep't of the Army, 413 F.3d 1354,
1356 (Fed. Cir. 2005).
Mr. Fitzsimmons’s argues the Board erred in affirm-
ing his removal for two reasons: 1) the agency should not
have considered any performance issues after the April 6,
2009 review because the PIP period was erroneously
extended; and 2) substantial evidence does not support
the AJ’s factual finding that the PIP period was extended
in response to Mr. Fitzsimmons’s requests.
“Appraisal period” is a period “for which a perform-
ance plan shall be prepared, during which performance
shall be monitored, and for which a rating of record shall
be prepared.” 5 C.F.R. § 430.206(a)(1). “The appraisal
period generally shall be 12 months so that employees are
provided a rating of record on an annual basis.” 5 C.F.R.
§ 430.206(a)(2). “Each rating of record shall cover a
specified appraisal period” and “[a]gencies shall not carry
over a rating of record prepared for a previous appraisal
period as the rating of record for a subsequent appraisal
period(s) without an actual evaluation of the employee’s
performance during the subsequent appraisal period.” 5
C.F.R. § 430.208(h). When the agency determines that an
employee’s performance is unacceptable in one or more
critical elements, “the agency shall afford the employee a
reasonable opportunity to demonstrate acceptable per-
formance[.]” 5 C.F.R. § 432.104. This period is also
known as a PIP. IRS’s manual provides, “[a] rating of
record should not be assigned to the employee during the
formal opportunity to improve period.” IRM §
6.432.1.10(4).
A rating of record becomes “final” when it is issued to
an employee, “[e]xcept as provided in § 430.208(i)[.]” 5
C.F.R. § 430.208(a)(3). This regulation provides three
circumstances in which a rating of record may be

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FITZSIMMONS v. TREASURY 6
changed. 5 C.F.R. § 430.208(i). One such circumstance is
“[w]here the agency determines that a rating of record
was incorrectly recorded or calculated.” 5 C.F.R. §
430.208(i)(3). When the Office of Personnel Management
(“OPM”) amended 5 C.F.R. § 430.208, it explained the
term “incorrectly recorded” as follows:
As an exception to the general prohibition regard-
ing retroactively changing ratings of record, there
is a relatively limited set of circumstances where
an agency might feel compelled to change a rating
of record long after it has been presumed to be fi-
nal. An administrative error, such as a rating of-
ficial who inadvertently “checks the wrong box”
and assigns a summary rating level that does not
correspond to the element levels that have been
assigned, would certainly be good cause for an
agency’s decision to retroactively change the over-
all rating of record. . . . While OPM believes it was
not the intent of the law governing performance
appraisal to allow for independent action by man-
agement to retroactively alter a final rating of re-
cord, it does recognize some circumstances where
such a change would be required. These proposed
regulations are designed to be sufficiently flexible
to allow for changes to ratings of record that occur
in the normal course of communication between
supervisors and employees close to the original is-
suance of a rating of record, as well as changes re-
sulting from administrative procedures that
provide employees with an avenue to challenge
their ratings of record.
63 Fed. Reg. 19411, 19412 (Apr. 20, 1999).
In this case, during Mr. Fitzsimmons’s PIP period, the
April 6, 2009 appraisal was a rating of record that was

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FITZSIMMONS v. TREASURY 7
incorrectly issued. While an official inadvertently
“check[ing] the wrong box” is an obvious example of an
“incorrectly recorded” appraisal, it is not limiting. The
regulation is designed “to be sufficiently flexible to allow
for changes to ratings of record that occur in the normal
course of communication between supervisors and em-
ployees close to the original issuance of a rating of record.”
63 Fed. Reg. at 19412. Because this appraisal was with-
drawn and Mr. Fitzsimmons’s record was validly changed
to “not ratable,” the April 6, 2009 rating falls under the
“incorrectly recorded” exception. This incorrect recording
does not end an appraisal period, thus did not end Mr.
Fitzsimmons’s PIP period. See 5 C.F.R. § 430.208(a)(3).
Accordingly, Mr. Fitzsimmons’s primary argument, that
is, the PIP period ended on March 31, 2009 due to the
improper issuance of the annual appraisal, is unfounded.
His remaining arguments based on this premise, likewise,
have no legal or factual support.
As for the Board’s finding that all of the extensions of
the PIP were at Mr. Fitzsimmons’s request, on October,
29, 2008 and January 29, 2009, Fitzsimmons requested
that his inventory be reduced for six months and that his
review occur at the end of this period. The agency
granted his requests informally on March 11, 2009 and
formally on May 27, 2009. Accordingly, the Board’s
finding that all of the extensions of the PIP were at
Fitzsimmons’s request is supported by substantial evi-
dence.
For the foregoing reasons, the Board’s decision is sup-
ported by substantial evidence and not contrary to law.
Therefore, this court affirms the Board’s decision sustain-
ing Mr. Fitzsimmons’s removal.
AFFIRMED

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