Evans v. Department of Treasury

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3038
TOMMY M. EVANS,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
__________________________
DECIDED: April 11, 2005
__________________________
Before SCHALL, LINN, and PROST, Circuit Judges.
PER CURIAM.
Tommy M. Evans seeks review of a final order of the Merit Systems Protection
Board (“MSPB”) affirming an administrative judge’s initial decision to sustain the
Department of the Treasury’s (“the Department’s”) removal of Mr. Evans from his
position with the Internal Revenue Service (“IRS”). See Evans v. Dep’t of Treasury, No.
AT0752030541-I-1 (M.S.P.B. Sept. 9, 2004). We affirm.
BACKGROUND
Mr. Evans worked for the IRS in Memphis, Tennessee as an Offer-In-
Compromise Examiner (“OE”). This position required Mr. Evans to develop and
evaluate records dealing with taxpayers’ offers to settle or compromise existing tax
liabilities. Mr. Evans received several months of classroom and on-the-job training
beginning in January of 2002. During this training period, Mr. Evans received a copy of
a performance plan. After the training period, Mr. Evan’s work as an OE was reviewed
by experienced examiners and feedback was given to Mr. Evan by coaches.
On or about September 17, 2002, Mr. Evans received a performance appraisal
rating his job performance as unacceptable and offering him suggestions on how he
could improve his performance. On February 20, 2003, Mr. Evans received another
performance appraisal again rating his job performance as unacceptable. In response
to these performance appraisals, Mr. Evans’s supervisor sent Mr. Evans a letter on
February 28, 2003 proposing his removal from his position with the IRS due to
unacceptable performance. The letter included details of thirteen alleged deficiencies in
Mr. Evans’s job performance. On April 21, 2003, a field director issued a decision
removing Mr. Evans from his position based on reasons set forth in the proposal letter.
Mr. Evans filed an appeal with the MSPB. In an initial decision dated September
30, 2003, an administrative judge affirmed Mr. Evans removal, finding that the
Department established by a preponderance of the evidence that Mr. Evans’s
performance was unacceptable, that Mr. Evans failed to establish that he was removed
in reprisal for any protected activity, and that the penalty of removal was within the
bounds of reasonableness. The decision of the administrative judge became final when
the full MSPB denied Mr. Evans’s petition for review on September 9, 2004.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
05-3038 2
DISCUSSION
We review a decision of the MSPB to ensure it is not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; obtained without
procedures required by law, rule, or regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c) (2000); Mattern v. Dep’t of Treasury, 291 F.3d
1366, 1369 (Fed. Cir. 2002).
On appeal, Mr. Evans does not present any clear argument why this court should
reverse the decision of the MSPB. Instead, without citing to a transcript of the
proceedings below or to any other part of the record before us, Mr. Evans recites a
series of events that he apparently believes should move us to reverse the decision of
the MSPB. For example, Mr. Evans alleges that “[d]ocuments reflects [sic] and was
[sic] presented in legal preceding [sic] that some of my errors made while as a OE, were
because of following instructions from a Coach.” Also, Mr. Evans, citing Graham v.
Dep’t of the Air Force, 46 M.S.P.R. 227 (1990), states that the IRS is “holding me to a
higher standard than is required in established performance standards.”
To the extent Mr. Evans challenges the findings of the MSPB, we conclude
based on our review of the record that those findings are supported by substantial
evidence. Furthermore, Mr. Evans’s reference to Graham is unavailing. In that case
the MSPB summarized case law addressing performance-based actions taken under
chapter 75 of title 5 as requiring that “the agency’s imposed standard be reasonable and
provide for accurate measurement of the employee’s performance.” Graham, 46
M.S.P.R. at 235. Here, the administrative judge specifically noted that when an agency
takes an action under chapter 75 “it must simply prove that its measurement of the
05-3038 3
appellant’s performance was both accurate and reasonable.” Furthermore, after
reviewing the evidence the administrative judge specifically concluded that the
Department’s measurement of the appellant’s performance was both accurate and
reasonable. Thus, we discern that the administrative judge followed established
procedures required by law. In addition, we find substantial evidence in the record
supporting the administrative judge’s conclusion that the measurement of Mr. Lewis’s
performance by the IRS was both accurate and reasonable. We therefore reject Mr.
Lewis’s suggestion that the IRS was holding Mr. Lewis to a higher standard than is
required in established performance standards.
CONCLUSION
For the foregoing reasons, we affirm the decision of the MSPB.
05-3038 4