Case: 23-1845 Document: 26 Page: 1 Filed: 12/07/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GEORGE GWYNN,
Petitioner
v.
DEPARTMENT OF THE TREASURY,
Respondent
______________________
2023-1845
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0432-16-0865-I-1.
______________________
Decided: December 7, 2023
______________________
GEORGE GWYNN, Alexandria, VA, pro se.
BRENDAN DAVID JORDAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, CORINNE
ANNE NIOSI.
______________________
Before MOORE, Chief Judge, DYK and STOLL, Circuit
Judges.
Case: 23-1845 Document: 26 Page: 2 Filed: 12/07/2023
2 GWYNN v. TREASURY
PER CURIAM.
Petitioner George Gwynn seeks review of a decision of
the Merit Systems Protection Board (“Board”). That deci-
sion sustained the Department of the Treasury’s (“Treas-
ury’s”) reduction of Mr. Gwynn’s grade from Supervisory
Individual Taxpayer Advisory Specialist (“ITAS”), IR-0501-
5, to Senior ITAS, GS-501-11, on the basis of sustained un-
acceptable performance. On review in this court, Mr.
Gwynn argues primarily that the reasons and examples
given in his proposed grade reduction were never substan-
tiated. We find that the Board’s findings were supported
by substantial evidence and affirm.
BACKGROUND
Mr. Gwynn was a Supervisory ITAS from about 2006
until his demotion in 2016, and his responsibilities in-
cluded running the daily operations of Taxpayer Assistance
Centers in Fredericksburg and Bailey’s Crossroads, Vir-
ginia. On May 20, 2014, Mr. Gwynn’s supervisor sent him
a counseling letter informing him that his management
ability was lacking and recommending either a change in
his management practices or a return to a Senior ITAS
role. Over the next year, Mr. Gwynn’s supervisor sent
seven additional counseling letters and continued to criti-
cize his performance informally. In April 2015, Mr.
Gwynn’s supervisor issued a poor midyear progress review
for the review period beginning October 1, 2014. Then, on
April 30, 2015, Mr. Gwynn’s supervisor sent him a letter
stating that he was required to participate in a perfor-
mance improvement plan (“PIP”). The letter set forth three
critical performance expectations of his position, explained
that his performance was unacceptable, and provided spe-
cific examples. Mr. Gwynn was given 60 days to demon-
strate performance at a minimally successful level. The
letter described several necessary performance improve-
ments, listed nine discrete “action items” to complete dur-
ing the period, and warned Mr. Gwynn that failure to meet
Case: 23-1845 Document: 26 Page: 3 Filed: 12/07/2023
GWYNN v. TREASURY 3
all of the performance standards could result in reduction
in grade or reassignment to another position. During this
60-day PIP period, Mr. Gwynn was assigned a manager
coach.
The PIP period was interrupted in June 2015, when
Mr. Gwynn was hospitalized and underwent emergency
surgery. Mr. Gwynn remained on medical leave from June
4, 2015, to November 2, 2015, when he returned to work
and gave his supervisor a letter from his doctor stating that
Mr. Gwynn was cleared for duty but would need frequent
bathroom breaks, standing breaks, and an opportunity to
telecommute (especially after clinic appointments). On No-
vember 10, 2015, Mr. Gwynn’s supervisor told him he could
take as many bathroom and standing breaks as needed.
However, because Mr. Gwynn was on a PIP, his supervisor
determined that he was not eligible to telework under In-
ternal Revenue Service policy. Thus, she instead told Mr.
Gwynn to take leave to attend appointments at the clinic
whenever he needed. Following a four-week transition pe-
riod, Mr. Gwynn resumed his full regular duties on Novem-
ber 30, 2015.
Because of Mr. Gwynn’s medical leave, his supervisor
extended his PIP period to December 31, 2015, and ex-
tended the deadlines for specific action items by seven
months (from May to December). According to Mr. Gwynn,
during his PIP period the Bailey’s Crossroads office was
understaffed. Between December 11 and 17, 2015, also
during Mr. Gwynn’s PIP period, the Bailey’s Crossroads of-
fice moved to Vienna, Virginia.
Following the PIP period, Mr. Gwynn’s supervisor rec-
ommended removing him from his management position.
The supervisor determined that Mr. Gwynn had failed to
show adequate performance in each of the three critical
performance expectations listed in his PIP notice (leader-
ship and human capital management, customer service
and collaboration, and program management). On March
Case: 23-1845 Document: 26 Page: 4 Filed: 12/07/2023
4 GWYNN v. TREASURY
25, 2016, Mr. Gwynn’s second-line supervisor proposed a
reduction in grade to GS-11, Senior ITAS. The second-line
supervisor gave three reasons for the demotion, which were
Mr. Gwynn’s inadequate performance as to the three criti-
cal performance expectations, and supported each reason
with multiple specifications. On August 19, 2016, Mr.
Gwynn’s third-line supervisor issued a decision sustaining
all of the charges and specifications and effecting the pro-
posed reduction in grade.
Mr. Gwynn appealed his demotion to the Board, con-
tending that the demotion was not supported by the evi-
dence. The administrative judge (“AJ”) found—based on a
declaration from Mr. Gwynn’s supervisor, Mr. Gwynn’s ad-
missions that he failed some requirements of his PIP, a dec-
laration from the deciding official, and other documents—
that Mr. Gwynn was properly demoted for poor perfor-
mance under 5 U.S.C. chapter 43. Mr. Gwynn petitioned
the full Board for review. The Board denied review, af-
firmed the demotion, and modified the AJ’s findings as to
certain examples and specifications. Mr. Gwynn timely pe-
titioned this court for review. We have jurisdiction under
28 U.S.C. § 1295(a)(9). 1
DISCUSSION
Under
5 U.S.C. § 7703(c), we review actions, findings,
or conclusions of an agency for whether they are:
(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;
1 Mr. Gwynn’s petition to the Board presented argu-
ments based on disparate treatment due to medical disa-
bility. Before this court, Mr. Gwynn has certified that he
is not raising a discrimination claim.
Case: 23-1845 Document: 26 Page: 5 Filed: 12/07/2023
GWYNN v. TREASURY 5
(2) obtained without procedures required by
law, rule, or regulation having been followed;
or
(3) unsupported by substantial evidence.
To demote an employee for unacceptable performance un-
der
5 U.S.C. § 4303, the agency must have (1) established
an approved performance appraisal system, (2) communi-
cated the performance standards and critical elements of
an employee’s position to him, (3) warned him of inadequa-
cies in his performance of critical elements, and (4) offered
him counseling and an opportunity for improvement. San-
tos v. Nat’l Aeronautics & Space Admin.,
990 F.3d 1355,
1361–62 (Fed. Cir. 2021) (citing Lovshin v. Dep’t of Navy,
767 F.2d 826, 834 (Fed. Cir. 1985)). If these so-called
“Lovshin” requirements are met, the agency may reduce an
employee’s grade based on an unacceptable rating with re-
spect to even a single critical element of the employee’s po-
sition. Harris v. Sec. & Exch. Comm’n,
972 F.3d 1307, 1316
(Fed. Cir. 2020).
With respect to the first and second Lovshin require-
ments, Mr. Gwynn does not dispute that Treasury had an
approved performance appraisal system and that Treasury
informed Mr. Gwynn of the performance standards and
critical elements of his position.
With respect to the third Lovshin requirement, Mr.
Gwynn does not appear to dispute that he was warned of
inadequacies in his performance of critical elements, which
the Board found supported by several communications in-
cluding the April 2015 midyear review and the April 30,
2015, PIP notice letter. We agree that substantial evidence
supports the Board’s finding that Mr. Gwynn received
warning that his performance was inadequate.
With respect to the fourth Lovshin requirement, Mr.
Gwynn does not appear to dispute the Board’s finding that
he was offered coaching, counseling, and more than 60 days
Case: 23-1845 Document: 26 Page: 6 Filed: 12/07/2023
6 GWYNN v. TREASURY
to achieve the tasks set forth in his PIP. However, Mr.
Gwynn argues that Treasury did not offer him a reasonable
opportunity for improvement because his PIP period was
interrupted by an office move and his illness. The Board
determined that, while the office move and illness were ex-
tenuating circumstances, they did not entirely excuse the
performance lapses identified by Treasury, several of
which occurred before Mr. Gwynn left for medical leave.
The Board concluded that Treasury reasonably provided
Mr. Gwynn an opportunity to improve his performance, in-
cluding by providing management coaches, by extending
the deadline for certain tasks by seven months, and by ex-
tending the PIP period for the full month after Mr. Gwynn
resumed his regular duties. We agree that substantial ev-
idence supports these findings.
On review, Mr. Gwynn primarily contends that the
Board erred in determining that his performance was un-
acceptable and justified imposing a PIP. He argues that
his supervisor gave “misleading and inaccurate state-
ments.” Pet. Br. at 29. Because “credibility determinations
of an administrative judge are virtually unreviewable on
appeal,” we will not disturb the Board’s decision to credit
evidence provided by Mr. Gwynn’s supervisor. Bieber v.
Dep’t of the Army,
287 F.3d 1358, 1364 (Fed. Cir. 2002).
Substantial evidence supports Treasury’s determination
that Mr. Gwynn’s performance before April 2015 was inad-
equate with respect to at least one critical element and jus-
tified imposing a PIP. In particular, as to the leadership
and human capital management element, substantial evi-
dence supports that Mr. Gwynn failed to complete reviews
for all employees in his group during October and Decem-
ber 2014, that Mr. Gwynn worked away from the larger
Bailey’s Crossroads site without informing his supervisor
(despite being instructed to communicate his wherea-
bouts), that Mr. Gwynn failed to sign a disciplinary recom-
mendation for a subordinate who engaged in travel card
abuse, and that Mr. Gwynn failed to communicate
Case: 23-1845 Document: 26 Page: 7 Filed: 12/07/2023
GWYNN v. TREASURY 7
promptly with his supervisor after an incident involving
two of his employees.
We conclude that substantial evidence also supports
the Board’s finding that Mr. Gwynn’s performance was in-
adequate with respect to at least one critical element dur-
ing the PIP period itself. Substantial evidence supports
that Mr. Gwynn failed to prepare a report identifying areas
for improvement in his office practices by the deadline set
by his supervisor (and that the report he eventually sub-
mitted did not identify areas for improvement), failed to
have his senior ITAS complete quality reviews during the
PIP period, failed to complete assigned progression reviews
on each employee during the PIP period, and failed to con-
duct timely annual appraisals during the PIP period. Mr.
Gwynn’s informal brief indeed does not dispute the finding
that he did not timely complete several of these require-
ments.
AFFIRMED
COSTS
No costs.
