MSPB Adopts New Element of Proof in Performance Removal Cases
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
For decades, the Merit Systems Protection Board (MSPB) has required federal agencies to prove one set of elements to sustain a performance-based adverse action when an employee appeals it to the Board. On May 12, 2022, in Lee v. Department of Veterans Affairs, the Board added a new element of proof consistent with the Federal Circuit Court of Appeals’ landmark decision in Santos v. National Aeronautics & Space Administration.
The employee in this case was employed as a Program Support Assistant at the VA’s Central Plains Consolidated Patient Account Center (CPCPAC) when her supervisor imposed a Performance Improvement Plan (PIP) to address her allegedly flagging productivity in August 2013. At the conclusion of the PIP, the VA proposed and sustained the employee’s removal from federal service for unacceptable performance.
The employee appealed her removal to an MSPB Administrative Judge. After holding a telephonic hearing in April 2015, the administrative judge issued an initial decision sustaining the removal, finding that the agency proved all necessary elements of a performance-based removal and that the employee’s performance remained unacceptable after the PIP. Consistent with MSPB precedent at the time, the AJ did not require the agency to prove that the employee’s performance was unacceptable prior to the imposition of the PIP. The employee appealed the AJ’s decision to the full Board, and her case stalled while the Board was without a quorum for over five years from January 7, 2017 to March 4, 2022.
During that time, on March 11, 2021, the United States Court of Appeals for the Federal Circuit handed down its opinion in Santos v. National Aeronautics & Space Administration, which held that in addition to the existing elements of proof, agencies must also prove an additional element drawn from the statutory text of 5 U.S.C. § 4302(c)(6): whether the employee “performed unacceptably prior to being placed on the PIP.”
In Lee, the Board noted that the Administrative Judge had applied existing precedent as of the date she issued the initial decision. The Board also noted that the Federal Circuit “issued a precedential decision recognizing an additional element of an agency’s burden of proof under chapter 43 while the matter was pending before the Board on petition for review.” As the Board noted, decisions of the Federal Circuit are binding on the Board, and the “Federal Circuit’s new precedent in Santos applies to all pending cases, regardless of when the events at issue took place.”
Thus, for the employee in Lee and all pending and future appellants, the Board adopted the Santos standard, folding in a new element to its analysis in performance-based action appeals. Under the new analysis, the agency must prove by substantial evidence that:
OPM approved its performance appraisal system and any significant changes thereto;
The agency communicated to the appellant the performance standards and critical elements of her position;
The appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1);
The appellant’s performance during the appraisal period was unacceptable in one or more critical elements;
The agency warned the appellant of the inadequacies in her performance during the appraisal period and gave her an adequate opportunity to demonstrate acceptable performance; and
After an adequate improvement period, the appellant’s performance remained unacceptable in at least one critical element.
The new element #4, bolded above, makes clear that PIPs must be justified by unacceptable performance prior to their imposition. As the Federal Circuit noted in its decision, this has the effect of holding managers accountable for a potentially pretextual PIP, the imposition of which was previously unreviewable at MSPB.
Because the “parties did not have an opportunity before the administrative judge to address the modified legal standard in light of Santos,” the Board remanded the case back to the AJ for further adjudication under the new standard, and directed the AJ to accept evidence and argument, and hold a supplemental hearing if appropriate, on whether “the agency proved by substantial evidence that the appellant’s pre-PIP performance was unacceptable.”
Read the full case: Lee v. Department of Veterans Affairs.
Disclosure: On July 7, 2020, the United States Court of Appeals for the Federal Circuit appointed Debra L. Roth as amicus curiae counsel to brief a statutory interpretation question from the position of employee-petitioner Fernando Santos in Santos v. National Aeronautics & Space Administration. Ms. Roth, Conor D. Dirks, and James P. Garay Heelan, attorneys of Shaw Bransford & Roth P.C., briefed the issue from the employee’s position for the court. The court adopted that position in its opinion. Shaw Bransford & Roth is the publisher of this newsletter and Mr. Dirks is also the author of this case law update.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.