Visit FedSmith.com to subscribe to our free email list!

Appeals Court Overturns MSPB Decision on Performance Based Removal

The appeals court disagreed with MSPB’s conclusion that a NASA engineer removed in a performance based action had failed to show that his military service was a factor in his removal.

The decision is Santos v NASA (CAFC No. 2019-2345, 3/11/2021). The fact summary is taken from the court’s decision.

Mr. Santos was an 18-year NASA employee working as a mechanical engineer at the Kennedy Space Center. He also held a commission as a commander in the U.S. Navy Reserve for over 20 years. As such he commanded two units and his military duties required about 8 weeks per year. Up until the time he transferred to a position with a new supervisor, his performance evaluations were consistently good, he received accolades for his performance, and his reserve status had apparently not caused a problem. However, once he was assigned to work for Ms. Balles, chief of the Ground Services Branch of the Commercial Division, in 2018, problems developed. Mr. Santos was given warnings of performance deficiencies and eventually placed under a PIP (Performance Improvement Plan). An apparent pattern had developed that when he was scheduled to go on military leave, Ms. Balles would assign tasks to him requiring him to be present for meetings, seminars, etc., in order to be able to perform those tasks even though he was scheduled to be on active duty. While Ms. Balles insisted she had no issue with his reserve military service, she nevertheless counseled Santos that he had to “report to work in a timely manner and maintain regular attendance at work.” (Opinion p. 2)

Following “months of difficulties,” Balles placed Santos on a PIP and eventually NASA removed him for performance within months of his reporting to her as his supervisor. (P. 2)

Mr. Santos appealed to the MSPB. He argued that the agency had violated the USERRA (Uniform Services Employment and Reemployment Rights Act) because his removal was motivated by his reserve military status. At his MSPB hearing he testified to many examples of being assigned tasks by Balles that required him to be present at meetings even though she knew he would be away on military leave when those meetings occurred. Because he was not at the meetings, she indicated his memos reporting on them were deficient and she reassigned them to other employees to re-do. Santos argued he should not have been put on a PIP in the first place since it was in retaliation for and animus toward his military status. 

The Board sustained Santos’ performance based removal. It ruled that the agency had followed appropriate procedures in removing him for failure to improve his performance. As for the alleged USERRA violation, the Board pointed to things like Ms. Balles thanking Santos for his service, not expressing a problem with his military leave and her patriotism as evidence of a lack of animus. It held that Santos did not prove animus. (P. 6)

The appeals court begs to differ. Of significance is the court’s holding that an agency must justify imposing a PIP in the first place before it can proceed with a performance based removal for failure to comply with improvements required by the PIP: “Today we confirm that the statute’s plain language demonstrates that an agency must justify institution of a PIP when an employee challenges a PIP-based removal.” (P.8)

As for the USERRA claim, the court sends that one back to the MSPB as well. The court points out that to establish a USERRA violation Santos must show that his military status was a “substantial or motivating factor in the adverse employment action….It need not be the only motivating factor, but it must be a substantial one.” Once he meets this burden, the agency must prove it had a valid reason for taking the action. (P. 13) 

Holding that MSPB’s decisions were not in accordance with law, the court of appeals has vacated and remanded the matter “for further proceedings consistent with this decision.” (P. 14)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.