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A federal appeals court has handed down a win to a commander in the Navy Reserve who claims he was placed on a performance improvement plan and ultimately removed from his NASA position for taking leave to perform his military duties.
The Court of Appeals for the Federal Circuit ruled March 11 that the Merit Systems Protection Board, an independent agency that evaluates the removal of federal employees, did not correctly evaluate the case of Fernando Santos, who had worked at NASA for 18 years when he was removed from his position in 2018. The court remanded Santos’ case, appealing his removal from his job, back to the board for reconsideration.
Santos, a Navy engineering duty officer with over 20 years of service, had had a distinguished career at NASA, preceded by several years working for the agency as a contractor, according to court summaries. He’d worked as the lead engineer on projects, including the space shuttles Endeavour (OV-105), Atlantis (OV-104), and Discovery (OV-103), and had received NASA’s prestigious Silver Snoopy award, which recognizes exceptional service beyond duty requirements that contributes to mission success. Only 1% of eligible recipients receive the award.
Santos’ career appeared to take a turn, however, in 2017, when he joined the Ground Systems Branch in the Commercial Systems Division of the Engineering Directorate at John F. Kennedy Space Center in Florida as a mechanical engineer. According to Santos’ testimony to the Merit Systems Protection Board, his new supervisor at the job seemed to have a problem with his taking military leave, which he did for up to eight weeks at a time.
“Before the Board, Santos testified that, although he ‘had never had problems with his use of military leave previously, he noticed as the year progressed that [his supervisor] was routinely taking a longer amount of time to approve his use of military leave,'” Circuit Judge Kathleen O’Malley wrote for the court.
Santos also claimed that he was held accountable for meetings he missed because he was on leave, including those scheduled after he’d requested the time out. In one case in November 2017, Santos said, he was tasked with compiling a report that required knowledge of a meeting that happened while he was out.
“Although Santos eventually obtained a copy of the meeting minutes and submitted the report, [the supervisor] informed Santos that the report was unsatisfactory and asked another employee to redo Santos’s work,” O’Malley wrote.
In early 2018, Santos received a “Letter of Instruction” regarding proper use of leave and recording work hours, just a day after he’d had another military leave request approved. According to the court’s summary, this was followed by a series of reprimands over the next several months as Santos was held accountable for information shared in meetings held while he was out, and once for a lapsed training that he completed two days after returning from leave.
The cycle culminated, according to the court, with Santos’ supervisor placing him on a performance improvement plan, or PIP, for 45 days. The PIP included 11 assignments and entailed multiple meetings between Santos and his supervisor to evaluate progress. At the end of the period, which also included some military leave, Santos’ performance was deemed to be unacceptable, and he was removed from his job Sept. 26, 2018.
Santos appealed to the board, saying that his firing violated the Uniformed Services Employment and Reemployment Rights Act, which protects Guard and reserve members from losing their jobs or facing workplace discrimination because of the requirements of their military duties.
The board considered Santos’ performance while on the PIP and decided that NASA had cause to remove him following that period. But, the court found, it didn’t consider whether Santos had been placed appropriately on the PIP in the first place. It also rejected Santos’ USERRA claim as not being supported by sufficient evidence.
“In reaching this conclusion, the Board concluded that there was no evidence supporting Santos’s claim because [his supervisor] ‘thanked him for his service,’ was ‘very patriotic,’ and did not express to others that Santos took too much military leave,” O’Malley wrote.
While the board has a longstanding practice of not considering pre-PIP performance, the court found that Santos’ situation required that consideration so his claim that the PIP itself was retaliatory could get proper evaluation.
“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 decision stated. “Indeed, these are the circumstances in which the issue of pre-PIP performance would be most relevant.”
The court overturned the board’s original decision in Santos’ case and ordered the board to give further consideration to both the circumstances preceding the PIP and his claims of retaliation under USERRA.
According to Santos’ LinkedIn profile, he stopped working for NASA at the Kennedy Space Center in 2018 but began a new role as senior project manager for NASA based in Wallops Island, Virginia, in January 2020. He did not respond to a message requesting comment on the case.
A spokesperson for the Merit Systems Protection Board told Military.com in a statement that,
“Once the court’s mandate issues, the remanded case will be processed in accordance with the court’s decision.” The board declined further comment on the case.
“NASA fully supports our employees who proudly serve in the reserve components of America’s military,” an agency spokesperson told Military.com in a statement. “It would be inappropriate, however, for NASA to discuss personnel matters.”
— Hope Hodge Seck can be reached at hope.seck@military.com. Follow her on Twitter at @HopeSeck.
