By Ann Boehm, November 13, 2023

Time, once again, to talk about Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021) – the universally disliked Federal Circuit case that changed 40 years of MSPB case precedent. Because of Santos, agencies must provi de substantial evidence of unacceptable performance before implementing a performance improvement plan (PIP).

Among the problems with Santos is the fact that the Federal Circuit did not say anything about how agencies are to show substantial evidence of unacceptable performance that occurred before the PIP began. Nothing. Nada. The MSPB has not really done much to help with this conundrum either.

FELTG founder Bill Wiley wrote a great article in April about how agencies should proceed post-Santos. Providing what he described as “admittedly legally conservative FELTG advice to Federal employment law practitioners,” Bill provided these steps to follow:

  1. Make sure the employee has been given performance standards (with critical elements identified) and has had at least a couple of months to get used to them.
  2. Collect evidence of mistakes the employee has made recently that demonstrate he is performing unacceptably under at least one of his critical elements.
  3. Incorporate reference to these mistakes in the PIP initiation memo. The supervisor should retain evidence of the mistakes but does not have to provide that evidence to the employee at this time. However, if you want to give this list to the employee, we recommend attaching it to the end of the PIP initiation so as not to start off on a negative and put the employee on the defensive.

Simple enough, right? So why am I revisiting the Santos requirement just a few months later? Because agencies are overcomplicating things! During a recent training event, a frustrated supervisor explained that agency counsel wanted to conduct a pre-PIP before instituting a PIP, because counsel was afraid of Santos. Arghhh.

Please do not overcomplicate things, my friends! Stick with logic. Stick to simple. There’s no case law from the MSPB or Federal Circuit indicating a pre-PIP is necessary to satisfy Santos.

Even with Santos, I still believe that the performance removal process can be the easiest way to remove a problem employee. But not if agencies go to illogical extremes because of risk aversion.

With Santos, you just have to provide some evidence of poor performance before you initiate the PIP. And only substantial evidence of that poor performance. Try Bill’s “admittedly legally conservative” way. It’s what we teach here at FELTG.

And if you believe us, here’s the Good News – you don’t have to over-Santos Santos! [email protected]

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