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In 'Landmark' Ruling, Court Raises Threshold for Firing Feds

Agencies must do more to prove feds were actually performing poorly, court says in precedent-setting decision.

Federal agencies are now facing new requirements to fire employees thanks to a court ruling that reversed a decades old precedent. 

In Santos v. NASA, the U.S. Court of Appeals for the Federal Circuit found the space agency failed to justify putting one of its engineers, Fernando Santos, on a performance improvement plan, or PIP. It was a ruling with sweeping implications, as agencies had never before been forced to establish cause for placing employees on a PIP. The plans are typically used by managers as a warning for poorly performing workers before initiating disciplinary action. 

Santos’ manager put him on a PIP after he missed meetings, which he argued he only missed when he took leave due to his requirements as a commander in the Navy Reserves. He faced the improvement plan shortly after he was assigned a new supervisor, despite receiving several accolades in his previous 18 years of service. The supervisor quickly issued several citations against Santos for taking the leave and for falling behind on work during his absences. She eventually placed Santos on a performance improvement plan in May of 2018 and he was fired four months later. 

Under the Uniformed Services Employment and Reemployment Rights Act, civilian employers cannot take disciplinary action against employees for missing time due to military service obligations. 

When Santos appealed his removal to the Merit Systems Protection Board, the judge there—as was standard practice—reviewed only whether NASA was justified in finding the engineer failed to boost the quality of work after he received the performance improvement plan. The agency did not have to prove Santos’ performance before the plan was issued was unacceptable, the judge said. 

Upon appeal to the federal circuit, a panel of judges found federal statute does mandate that agencies only issue improvement plans when an employee’s performance is unacceptable. They acknowledged the court had not previously ruled whether an agency must justify the issuance of a performance improvement plan when it relies on one for a firing, but found agencies must do so going forward. 

Without such justification, the court said, “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.” 

NASA argued the burden was on Santos to prove the PIP issuance was improper, citing a 1984 precedent, but the court responded the agency's argument “miss[ed] the mark.” In order to comply with federal law, agencies must “prove by substantial evidence” that employees are engaged in unacceptable performance prior to an improvement plan and while it was in place. 

The court remanded the case back to MSPB after vacating the MSPB judge’s ruling, with specific instructions to examine the details of the case prior to the PIP. It also told the judge to weigh in on Santos’ claim under the uniformed services law, noting the previous finding that cleared the supervisor on the basis that she thanked Santos for his service was insufficient. 

Shaw, Bransford and Roth, a federal employment law firm that filed a brief to bolster Santos’ argument, said the court had issued a “landmark opinion” on the case. The holding will have a governmentwide impact on agencies’ “burden of proof in all performance-based terminations,” the firm said. It has already seen MSPB judges inform agencies they must comply with the Santos ruling and prove PIPs were warranted in relevant cases. 

Debra Roth, a partner at the firm who the court assigned to write the brief, said PIPs generally put employees in an “precarious” positon that makes it difficult for them to retain their jobs. The new ruling will force agencies to prove such a significant step was necessary, when previously Roth could not even collect evidence that her clients’ performance was not acceptable. 

“It weeds out misuse of managerial authority,” Roth said of the ruling. She added it could lead to a more efficient and formalized system, as agencies will ensure they have all their ducks in a row before placing employees in a PIP. “It’s important to keep the system honest.” 

The ruling was so significant that the Federal Employment Law Training Group—a firm that provides various trainings to federal agencies—has already scheduled a webinar titled, “Justifying Your PIP? What the Recent Precedent-Breaking Fed Circuit Decision Means.”

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