Federal agencies must prove that an employee’s poor performance was sufficient to warrant a performance improvement plan if the results of that plan are ultimately used to remove the employee from their job, a U.S. Court of Appeals for the Federal Circuit decision issued March 11 has established.

In the case, Santos v. NASA, Fernando Santos argued that his supervisor at NASA repeatedly required him to perform work that conflicted with his leave to serve as a commander in the United States Navy Reserve, then issued letters of reprimand for poor performance.

His supervisor then placed Santos on a 45-day performance improvement plan that also coincided with a period of his leave for military service and ultimately decided that his performance had not improved enough during that period, issuing a proposed notice of removal.

Santos appealed that removal to the Merit Systems Protection Board, which upheld the removal decision, arguing that the agency did not have to prove that Santos was performing unacceptably prior to the PIP and that his manager did not discriminate against him because of his military service because she “‘thanked [Santos] for his service’ and was ‘very patriotic.’”

But the appeals court found that federal law stipulates that an agency can only reassign, reduce in grade or remove employees who “continue to have unacceptable performance” during a PIP.

“To ‘continue to have unacceptable performance’ during the PIP, as the statutory text requires, an employee must have displayed unacceptable performance prior to the PIP,” the decision states.

“Under the plain meaning of the statute, then, an agency must defend a challenged removal by establishing that the employee had unacceptable performance before the PIP and ‘continue[d] to’ do so during the PIP.”

The ruling overturns precedent previously followed by the MSPB, which only held that the agency had to demonstrate an employee performed unacceptably during the PIP, not prior.

“Confirming an agency’s obligation to justify initiation of a PIP where the PIP leads to removal is particularly appropriate, moreover, in situations resembling Santos’s, where an employee alleges that both the PIP and the removal based on the PIP were in retaliation for protected conduct,” the decision states.

“Otherwise, an agency could establish a PIP in direct retaliation for protected conduct and set up unreasonable expectations in the PIP in the hopes of predicating removal on them without ever being held accountable for the original retaliatory conduct.”

For Santos, the decision means that his case will have to go back to MSPB, where the Board has been ordered to decide the merits of his appeal based on his performance prior to the PIP as well as more thoroughly examine the claims that he was retaliated against for his military service.

According to the appeals court, the proximity in time between the employee’s military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses, are all factors that could establish retaliation under the Uniformed Services Employment and Reemployment Rights Act. Simply claiming that the supervisor was “very patriotic” and thanked Santos for his service is not sufficient evidence.

For federal employees at large, the ruling means that agencies will have a greater burden of proof to justify removal based on a PIP. An employee that can sufficiently prove that they had exemplary or sufficient performance prior to being placed on a PIP therefore stands a better chance of the MSPB ruling in their favor than they would have previously.

The decision also reinforces the standard MSPB should follow in determining whether discrimination occurred against an employee under USERRA.

About Jessie Bur

Jessie Bur covers federal IT and management.

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