YOUR SANTOS RIGHT GIVEN RETROACTIVE EFFECT

You might remember our recent post about a new court decision, known as Santos, holding that when an agency fires someone for unacceptable performance it must now prove that the original PIP it put the employee on was justified.  In other words, they must show that the employee was performing unacceptably before the PIP, not just at the conclusion of it.  Well, MSPB just made that news even better.  It ruled last week that…

this precedent not only applies going forward but also retroactively for any cases still in the appeal process.  Here is what it wrote.

Therefore, we modify the standard applicable to chapter 43 actions in light of Santos. To defend an action under chapter 43, the agency must prove by substantial evidence that: (1) OPM approved its performance appraisal system and any significant changes thereto; (2) the agency communicated to the appellant the performance standards and critical elements of her position; (3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the appellant’s performance during the appraisal period was unacceptable in one or more critical elements; (5) 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 (6) after an adequate improvement period, the appellant’s performance remained unacceptable in at least one critical element. The Federal Circuit’s new precedent in Santos applies to all pending cases, regardless of when the events at issue took place. (We added the underlining.  Check out Kelly J. Lee, v. Department of Veterans Affairs, 2022 MSPB 11 (May 12, 2022) for the full case decision.)

So, here are some things to do.

• If an employee is currently under a PIP, use your right to get information to ask for all documents establishing that the employee was performing unacceptably at the time s/he was put on a PIP.
• Do the same thing if the employee is in the process of being terminated post-PIP or has been terminated and you are awaiting a hearing on an MSPB appeal or arbitration.
• If at the hearing stage, question the agency rep about what proof it relied on before imposing a PIP.
• If the hearing is over and you are awaiting a decision, bring this new decision to the arbitrator’s attention and argue that the agency failed to meet it burden.
• If you just got an arbitrator’s decision, think about a failure to meet the Santos standard as grounds for appeal to a court.

MSPB merely returned the Kelly case to the parties to take evidence on whether the agency met the Santos standard, but it did not reinstate Kelly while a new decision was issued. If the original hearing is over, the union should argue that the agency failed to meet its burden and the entire termination should be overturned while the agency builds a new case, which would be its right.