On March 11, 2021, the U.S. Federal Circuit Court issued the decision in Fernando Santos v. National Aeronautics and Space Administration. This decision reverses MSPB law and holds that an Agency must establish that an employee’s performance is unsatisfactory when a removal action taken under Chapter 43 is appealed to the MSPB. Two excerpts from that decision are:
- Prior to the SANTOS decision a Federal employee had no recourse to challenge being “placed” on a performance improvement plain (PIP).;and
- 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.
The Santos decision, held that, once an agency chooses to impose a post-PIP termination, it must prove by substantial evidence that the employee’s unacceptable performance “continued“–i.e., it was unacceptable before the PIP and remained so during the PIP. Before Santos, there was no way for an employee to challenge being placed on a PIP.
This decision may end the common practice of Federal Agencies using unsatisfactory performance, the discretion to set performance standards and the lessor standard of evidence under Chapter 4 as a pretext to remove unwanted employees. Below is the relevant sections of the Court’s decision.
This court holds unlawful and sets aside any agency action, findings, or conclusions found to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re-quired by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). The Board abuses its discretion when “its decision (1) is clearly unreasonable, arbitrary, or fanciful; (2) is based on an erroneous conclusion of law; (3) rests on clearly erroneous fact findings; or (4) follows from a record that contains no evidence on which the [Board] could rationally base its decision.” Mayers v. Merit Sys. Prot. Bd., 693 F. App’x 902, 903 (Fed. Cir. 2017) (citing Sterling Fed. Sys., Inc. v. Goldin, 16 F.3d 1177, 1182 (Fed. Cir. 1994)). We review the Board’s underlying factual determinations for substantial evidence. McMillan v. Dep’t of Justice, 812 F.3d 1364, 1371 (Fed. Cir. 2016). Santos argues that the Board’s determination was un-lawful because (1) the AJ failed to consider the events pre-ceding his PIP when assessing the propriety of his removal; failed to engage in the correct legal inquiry when assessing his USERRA claim; and (3) predicated its conclusion that his military service was not a primary motivating factor in his removal on inadequate facts.
We agree with Santos on each point. A. The statute governing post-PIP removals, 5 U.S.C. § 4302, provides that employees “who continue to have un-acceptable performance” may only be removed “after an opportunity to demonstrate acceptable performance.” 5 U.S.C. § 4302(c)(6). The Board has held that this provision does not require an agency to prove that an employee was performing unacceptably prior to the PIP in order to justify a post-PIP removal. See Wilson v. Dep’t of Navy, 24 M.S.P.R. 583, 586 (1984) (finding “no statutory or regulatory basis” to require an agency to establish appellant’s unsatisfactory performance prior to the PIP1). The Board has consistently applied this interpretation to PIP removals. See, e.g., Brown v. Veterans Admin., 44 M.S.P.R. 635, 640 (1990) (“[I]f the employee’s performance is unacceptable during the PIP, the agency may generally base an action on this deficiency and need not also show that the employee’s performance was unacceptable prior to the PIP, as the Board held in Wilson . . . .”). We have not directly addressed the question of whether, when an agency predicates removal on an employee’s failure to satisfy obligations imposed by a PIP and that removal is challenged, the agency must justify imposition of a PIP in the first instance under 5 U.S.C. § 4302, The Wilson Board interpreted 5 U.S.C. § 4302(b)(6), a prior version of 5 U.S.C. § 4302(c)(6). Because the amended version predates the adverse employment action at issue here, this opinion refers to the more recent codification, though we have discussed the general relevance of pre-PIP performance to a PIP removal. See Harris v. Sec. & Exch. Comm’n, 972 F.3d 1307, 1316–17 (Fed. Cir. 2020).
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. Section 4302 requires agencies to develop a performance appraisal system that, inter alia, “provide[s] for periodic appraisals of job performance of employees.” 5 U.S.C. § 4302(a)(1). Section 4302(c) contains six subsections that detail what must comprise an agency’s performance appraisal system. Subsections (c)(5) and (c)(6) advise how an agency’s performance appraisal system should handle “unacceptable performance.” An agency’s performance appraisal system should provide for “assisting employees in improving unacceptable performance,” 5 U.S.C. § 4302(c)(5), as well as “reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance,” 5 U.S.C. § 4302(c)(6) (emphasis added). Agencies usually provide employees “an opportunity to demonstrate acceptable performance” by placing them on a PIP. See Harris, 972 F.3d at 1311.Thus, Section 4302(c)(6) makes clear that an agency is only allowed to “reassign, reduc[e] in grade, or remov[e] employees who continue to have unacceptable performance” during a PIP. 5 U.S.C. § 4302(c)(6) (emphasis added). 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. 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 Office of Personnel Management (“OPM”), the agency tasked with implementing the performance appraisal system of Chapter 43, reads Section 4302 the same way. OPM published a regulation entitled “Addressing Unacceptable Performance,” which pertains to subsections (c)(5) and (c)(6) of Section 4302. See 5 C.F.R. § 432.104. OPM published a notice of final rulemaking on October 16, 2020, amending this regulation to provide: At any time during the performance appraisal cycle that an employee’s performance is determined to be unacceptable in one or more critical elements, the agency shall notify the employee of the critical element(s) for which performance is unacceptable and inform the employee of the performance requirement(s) or standard(s) that must be attained in or-der to demonstrate acceptable performance in his or her position. Id. Notably, OPM stated in its notice of final rulemaking that “[t] he amended rule does not relieve agencies of the responsibility to demonstrate that an employee was per-forming unacceptably –which per statute covers the period both prior to and during a formal opportunity period – be-fore initiating an adverse action under chapter 43.” Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions, 85 Fed. Reg. 65940, 65957(Oct. 16, 2020) (emphasis added). OPM’s statement accords with our understanding that Section 4302(c)(6) re-quires agencies to justify a challenged post-PIP-based removal by establishing the propriety of the PIP in the first instance.
Our holdings in Harris and Lovshin v. Department of Navy, 767 F.2d 826 (Fed. Cir. 1985) are not inconsistent with this reading of Section 4302. Lovshin delineated four requirements agencies must satisfy before removing an underperforming employee under Section 4303. Agencies must: (a) establish an approved performance appraisal system; (b) communicate the performance standards and critical elements of an employee’s position to the employee; (c) warn the employee of inadequacies in “critical elements”; and (d) offer an underperforming employee counseling and an opportunity for improvement. Lovshin, 767 F.2d at 834. There, we emphasized that these requirements are consistent with fundamental fairness to employees. Harris clarified the third Lovshin element, holding that “the PIP notice itself often serves as the warning” of a performance problem. Harris,972 F.3d at 1316. But, Harris also confirmed that pre-PIP performance by the terminated employee and the agency’s pre-PIP treatment of the employee may be relevant to the removal inquiry. See Harris, 972 F.3d at 1316–1317. While we did not find the pre-PIP evidence in Harris sufficient to over-ride the agency’s removal decision, we expressly discussed the AJ’s consideration of it, concluding that the AJ had adequately done so in that case. Id. at 1320–21. 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. Otherwise, an agency could establish a PIP in direct retaliation for protected conduct and set up unreason-able expectations in the PIP in the hopes of predicating removal on them without ever being held accountable for the original retaliatory conduct. Indeed, these are the circumstances in which the issue of pre-PIP performance would be most relevant. NASA agrees that, pursuant to § 4302(c)(6), “the employee in question must have had unacceptable performance prior to being placed on a PIP.”
It, thus, appears to agree with Santos that the Board’s longstanding practice of ignoring pre-PIP circumstances is erroneous. NASA maintains, however, that Section 4303 governs the PIP process and is silent on whether agencies bear the burden of establishing the unacceptability of pre-PIP performance where a post-PIP removal is challenged. Section 4303’s silence, according to NASA, signals that the burden rests on the “employee to demonstrate that the agency’s action was improper.” NASA also asserts that, since “an agency is not required [under Harris] to even notify an employee of un-acceptable performance prior to the issuance of the PIP,” “there [must be] no requirement that an agency affirmatively establish unacceptable performance prior to the issuance of the PIP.” NASA’s arguments miss the mark. In our July 1, 2020 Order, we directed the parties to brief “whether, pursuant to 5 U.S.C. § 4302(c)(6), an agency must establish that an employee had ‘unacceptable performance’ prior to the implementation of a [PIP].” Order Requesting Supplemental Briefing, No. 19-2345 (July 1, 2020), ECF 31, at 2 (emphasis in original). Instead of discussing Section 4302, NASA analyzes Section 4303, erroneously reasoning that“[w]hether an agency’s action in issuing a PIP was proper is governed by Section 4303.” But we have made clear that Section 4302 governs the statutory PIP process. See, e.g., Harris, 972 F.3d at 1311; see also Moltzen v. Dep’t of Labor, 504 F. App’x 912, 914 (Fed. Cir. 2013). NASA’s argument concerning Section 4303’s silence on an agency’s burden to prove that an employee’s pre-PIP performance was unacceptable ignores the most relevant statutory language—that in Section 4302(c)(6).
NASA’s reliance on Harris is also misplaced. To be sure, an employee may not seek review of the decision to implement a PIP at the time it is instituted, either at the Board or otherwise. And, as Harris makes clear, the institution of the PIP can itself satisfy the notice component of Section 4303, but, when an agency chooses to remove an employee at the end of the PIP period, pre-PIP conduct may be relevant to the removal decision, as Harris also confirms. Allowing a PIP to serve as the pre-removal notice required by Section 4303 is not the same as allowing the mere fact of a PIP to create a presumption that the pre-PIP conduct was actually unacceptable. Thus, we hold that, once an agency chooses to impose a post-PIP termination, it must prove by substantial evidence that the employee’s unacceptable performance “continued”—i.e., it was unacceptable before the PIP and remained so during the PIP.
Importantly, we are not prescribing any particular evidentiary showing with respect to the employee’s pre-PIP performance. Performance failures can be documented or established in any number of ways. The burden would then shift to the employee to prove that the motive for imposing the PIP and, ultimately termination, was discriminatory under well-established guidelines for making such a showing. Because the Board’s decision to not consider Santos’s allegation that he should never have been placed on a PIP was based on a misinterpretation of Section 4302(c)(6), we find that the Board abused its discretion.
We therefore vacate and remand this issue for the Board to decide whether NASA established that Santos performed unacceptably prior to being placed on the PIP, thus satisfying the “continue[d] to have unacceptable performance” language un-der 5 U.S.C. § 4302(c)(6). B. Santos also argues that, even if some aspects of his performance were unacceptable, his military service was a primary motivating factor in his removal. USERRA “prohibit[s] discrimination against persons because of their service in the uniformed services.” 38 U.S.C. § 4301(a)(3). The act prohibits an agency from denying any person who has a military obligation “any benefit of employment by an employer on the basis of . . . performance of service.” 38 U.S.C. § 4311(a). As we articulated in Sheehan v. Department of Navy, 240 F.3d 1009 (Fed. Cir. 2001), “an employee making a USERRA claim of discrimination. . . bear[s] the initial burden of showing by a preponderance of the evidence that the employee’s military service was ‘a substantial or motivating factor’ in the adverse employment action.” Id. at 1013.
It need not be the only motivating factor, but it must be a substantial one. Sheehan establishes four non-exclusive factors that can help the Board determine whether a discriminatory motivation may reasonably be inferred in a USERRA challenge:  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. Id. at 1014. Once the employee has made the requisite showing, “the employer then has the opportunity to come forward with evidence to show, by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason.” Id. at 1013. “[A]n employer [cannot] treat employees on military duty like those on nonmilitary leave of absence.” Erickson v. U.S. Postal Serv., 571 F.3d 1364, 1369 (Fed. Cir. 2009) (internal quotation marks omitted). Because we vacate and remand the Board’s conclusions regarding Santos’s performance, we must vacate and re-mand the Board’s assessment of Santos’s USERRA claim as well. The two inquiries are related since the validity of the reason proffered for a discharge is a factor in the Sheehan analysis. The events leading to Santos’s PIP may be directly relevant to Santos’s ability to satisfy his initial burden under USERRA. We therefore vacate and remand this issue to the Board for additional fact findings concerning Santos’s pre-PIP performance and Ms. Balles’s motivations for instituting the PIP. We make clear, moreover, that, on remand, the Board must actually apply the Sheehan factors, which it has not yet done. Santos argued to the Board that “his removal was discriminatory because . . . management held the time he was absent for military service against him.” Santos, 2019 WL 2176543, at *12. And he detailed the extent to which reprimands or complaints about his performance dovetailed with his requests to fulfill his military obligations. The Board simply concluded that Santos failed to show his military service was a substantial or motivating factor in his removal because Balles “thanked [Santos] for his service” and was “very patriotic.” Id. Those minimal factual findings do not suffice under Sheehan. On remand, the Board must apply the Sheehan factors to all the facts concerning Santos’s performance and Balles’s supervision of Santos, both pre- and post-PIP