Agency Must Justify PIP When Employee Challenges Removal

A federal agency must justify initiating a performance improvement plan (PIP) by showing that an employee's performance was unacceptable prior to the PIP when an employee challenges his removal, a federal appellate court ruled.

The plaintiff, a mechanical engineer and commander in the U.S. Navy Reserve, had worked for NASA for 18 years when he was transferred to a new division in 2018.

Despite having received many accolades throughout his NASA career, the plaintiff began receiving letters of reprimand alleging deficient performance from his new supervisor. The timing of many letters coincided with the plaintiff's requests for, or absences due to, military leave. The plaintiff regularly took military leave from NASA to meet his military obligations as commander of two reserve units. The letters criticized his ability to report to work in a timely manner and maintain regular attendance at work.

After months of difficulties, his supervisor placed him on a PIP. He was removed from his position one month after receiving a notice of proposed removal in August 2018.

The plaintiff appealed to the Merit Systems Protection Board (MSPB), arguing that his removal was retaliatory and violated the Uniformed Services Employment and Reemployment Rights Act (USERRA). He testified that his supervisor often assigned tasks that conflicted with his concurrent military obligations, resulting in his inability to complete the tasks; the supervisor would then reprimand him for failing to satisfactorily complete the tasks.

The MSPB upheld his removal, stating that NASA had established the elements necessary to remove the plaintiff: He had failed to meet the PIP-established performance standards for his position, NASA had established and communicated performance standards to him, he had been warned of his performance inadequacies during the PIP and given a chance to improve, and his performance remained unacceptable in at least one critical element.

The board did not address the plaintiff's argument that he should never have been placed on a PIP in the first place, stating that an agency is not required to prove inadequate performance prior to a PIP. The board also rejected the plaintiff's USERRA claim, determining that he had failed to show that his uniformed service was a substantial factor in his removal.

On appeal, the U.S. Court of Appeals for the Federal Circuit noted that the governing statute, 5 U.S.C. §4302, states that an agency may 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 court said. "[A]n 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."

This is particularly appropriate in situations like the plaintiff's, the court said, 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 unreasonable expectations in the PIP in the hopes of predicating removal on them without ever being held accountable for the original retaliatory conduct," the appeals court reasoned. Once an agency imposes 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," the court held.

Stating that the MSPB's failure to consider the plaintiff's argument that he should never have been placed on a PIP was based on a misinterpretation of the statute, the court vacated the decision and sent the case back for the board to decide whether NASA established that the plaintiff's job performance was unacceptable prior to being placed on a PIP.

Turning to the USERRA claim, the court noted that USERRA prohibits discrimination against people because of their service in the uniformed services. While the employee's military service need not be the only motivating factor, it must be a substantial one. The board had never fully explored the plaintiff's USERRA claim, the court held.

Vacating and sending the board's decision on the USERRA claim back to the board, the court instructed the MSPB to apply four factors established in an earlier case to all the facts regarding the plaintiff's performance and his manager's supervision both pre- and post-PIP to determine whether a discriminatory motivation may reasonably be inferred in his USERRA challenge.

The factors are:

• 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 toward members protected by the statute together with knowledge of the employee's military activity.
• Disparate treatment of certain employees compared to other employees with similar work records or offenses.

Santos v. National Aeronautics and Space Administration, Fed. Cir., No. 2019-2345 (March 11, 2021).

Professional Pointer: The mere fact that a PIP was put into place by a federal employer should not create the presumption that the employee's pre-PIP performance was actually unacceptable. This is especially true in cases where the employee claims that both the PIP and the subsequent removal were in retaliation for protected conduct. Agencies should carefully consider whether the employee's pre-PIP performance was indeed unacceptable and ensure that performance failures are well-documented.

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.