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

The appeals court ruling changes decades of precedent to require agencies to justify the placement of an employee on a performance improvement plan in the event that they appeal their removal.

Fired (Image: Shutterstock)
 

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."

NEXT STORY: Quick Hits

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.