Court ruling adds to agencies' burden of proof for firing feds

A new ruling from the U.S. Court of Appeals for the Federal Circuit has added to the list of what agencies must prove when justifying performance-based removals that are appealed.

In a change to decades-old precedent, agencies will need to be able to warrant that an employee's bad performance merited their placement on a performance improvement plan (PIP) before they were fired.

Fernando Santos, a former NASA employee and Navy Reserve Commander, is at the center of the case, Santos v. NASA. It's an appeal of a Merit Systems Protection Board (MSPB) decision that had upheld Santos' removal from the space agency.

He worked with NASA for over 15 years before moving to a new branch in early 2017. At that point, Santos said he started having issues with taking military leave to fulfill his Reserve obligations, something that he said hadn't been a problem in the past. In 2018 he was placed on a PIP and later fired.

Santos argued that his removal was retaliatory and violated the Employment and Reemployment Rights Act, a law that prohibits employers from taking disciplinary employment actions against employees who must take leave for military service.

The administrative judge at MSPB sided with the agency, citing NASA's fulfillment of the steps for performance plans and firings for employees who don’t sufficiently improve.

Appeals Judge Bryson O’Malley said, however, that the MSPB decision "notably" didn’t consider Santos' case that "he should not have been put on a PIP in the first place."

O’Malley overturned the original decision and sent it back to MSPB, asking the board to find more facts about Santos' performance before being placed on the performance plan and about his boss' motivations for putting him on that plan.

In the process, O'Malley set new legal standards requiring agencies to justify PIPs if employees challenge a PIP-based firing.

This will close a legal loophole in situations like Santos' where employees allege that the retaliation was in play in the PIP and the firing, O'Malley writes.

"Otherwise, an agency could establish a PIP in direct retaliation for protected conduct in the hopes of predicating removal on them without ever being held accountable for the original retaliatory conduct," he writes. "Indeed, these are the circumstances in which the issue of pre-PIP performance would be most relevant."

O’Malley also overturned and remanded the second part of the original decision. Santos claimed that his military service was a "primary motivating factor" and that management held his absences for service against him. The MSPB's rejection of this claim on the basis that Santos' NASA boss "thanked him for his service" and was "very patriotic" isn’t enough, O'Malley said.

The decision "really shouldn’t be a change in terms of what agencies do internally," said Jim Eisenmann, a partner at Alden Law Group who previously served as executive director and general counsel of the MSPB. He noted that supervisors should already know not to use PIPs absent actual poor performance from the employee in question.

Either way, the MSPB is alerting agencies with active litigation to the change, said a representative with Shaw, Bransford and Roth, a federal employment law firm that filed an amicus curiae brief addressing the case.

The ruling does have the potential to affect feds who feel that they weren’t ever performing poorly.

"In the years that I've represented employees, I heard many, many times, 'I should not have been put on a PIP in the first place,'" Eisenmann said. "I would have to say, based on the board precedent, 'Well, the agency doesn't have to prove that.' Now they do."