United States Court of Appeals 

for the Federal Circuit ______________________

FERNANDO SANTOS,

Petitioner

v.

NATIONAL AERONAUTICS AND SPACE 

ADMINISTRATION,

Respondent

______________________

2019-2345

______________________

Petition for review of the Merit Systems Protection 

Board in No. AT-0432-19-0074-I-1.

______________________

Decided: March 11, 2021

______________________

FERNANDO SANTOS, Orlando, FL, pro se.

 ROBERT R. KIEPURA, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by

DEBORAH ANN BYNUM, JEFFREY B. CLARK, ROBERT EDWARD 

KIRSCHMAN, JR.; TREVOR OKTAY TEZEL, Office of the Chief 

Counsel, NASA Kennedy Space Center, Kennedy Space 

Center, FL.

Case: 19-2345 Document: 44 Page: 1 Filed: 03/11/2021
2 SANTOS v. NASA

DEBRA LYNN ROTH, Shaw, Bransford & Roth P.C., 

Washington, DC, as amicus curiae counsel. CONOR DIRKS, 

JAMES GARAY HEELAN also appearing.

 ______________________

Before O’MALLEY, BRYSON, and HUGHES, Circuit Judges.

Opinion for the court filed by Circuit Judge O’MALLEY.

Concurring opinion filed by Circuit Judge Hughes.

O’MALLEY, Circuit Judge.

In 2018, Fernando Santos—a mechanical engineer for 

National Aeronautics and Space Administration (“NASA”) 

and a commander in the United States Navy Reserve—was

transferred to a new division of NASA and placed under

the supervision of Angela Balles, chief of the Ground Systems Branch of the Commercial Division. Despite working 

at NASA for over 18 years and receiving multiple accolades 

for his service, Santos began receiving letters of instruction 

and reprimand under his new supervisor alleging deficient

performance. Although Balles maintained that she had no 

problems with Santos’s mandatory military obligations, 

the timing of many letters coincided with Santos’s requests 

for or absences due to military leave. The letters, moreover, made much of Santos’s ability to “report to work in a 

timely manner and maintain regular attendance at work.” 

After months of difficulties, Balles formally placed Santos

on a performance improvement plan (“PIP”). On August 

27, 2018, Balles issued Santos a notice of proposed removal. Santos was removed from his position on September 26, 2018. 

On October 26, 2018, Santos appealed his removal to 

the Merit Systems Protection Board (“Board”). Santos v. 

Nat’l Aeronautics & Space Admin, No. 

AT-0432-19-0074-I-1, 2019 WL 2176543 (M.S.P.B. May 21, 

2019). The administrative judge (“AJ”) issued an initial decision upholding NASA’s removal and rejecting Santos’s 

Case: 19-2345 Document: 44 Page: 2 Filed: 03/11/2021
SANTOS v. NASA 3

claim under the Uniformed Services Employment and 

Reemployment Rights Act (“USERRA”). Id. The AJ’s initial decision became the Board’s final decision because Santos did not petition the Board for review. Santos appeals.

Because the Board applied the wrong legal framework 

when assessing Santos’s removal and did not adequately 

analyze his USERRA claim, we vacate and remand.

I. BACKGROUND

Santos’s affiliation with NASA started in 1997. Although he began his career as a prime contractor supporting 

the space shuttle division, NASA hired Santos three years 

later. Santos, 2019 WL 2176543, at *2. Santos then served 

as the lead engineer on various projects, including the OV105 Endeavor, OV-104 Atlantis, and OV-103 Discovery. 

For seventeen years, NASA recognized Santos’s efforts. 

Santos, for example, was an Engineering Employee of the 

Month, received the NASA Honor Award and the Space 

Shuttle Program Manager Commendation, and accepted 

the Silver Snoopy Award—an award given to less than 1% 

of the entire NASA and contractor workforce. From 2011

through 2017, Santos received ratings of Fully Successful 

(3), Accomplished (4), and Distinguished (5) on his performance evaluations. 

In early 2017, Santos joined the newly created Ground 

Systems Branch in the Commercial Systems Division of the 

Engineering Directorate. As a mechanical engineer in the 

Ground Systems Branch, Santos’s supervisor was Balles. 

In addition to his work with NASA, Santos was a commander in the United States Navy Reserve with over 

twenty years of service as an engineering duty officer. As 

a senior officer in the Navy, Santos commanded two units, 

SurgeMain San Antonio and SurgeMain Little Rock, 

wherein he managed a team charged with supporting warship modifications and maintenance. He also served as the 

officer-in-charge for Space and Naval Warfare and regularly led cybersecurity trainings. To fulfill these 

Case: 19-2345 Document: 44 Page: 3 Filed: 03/11/2021
4 SANTOS v. NASA

obligations, Santos regularly took military leave from 

NASA, sometimes for as long as eight weeks.

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 Balles was 

routinely taking a longer amount of time to approve his use 

of military leave.” He also testified that he was often held 

accountable for meetings missed due to his military obligations, even though those meetings were scheduled after he

had submitted notice of military leave. In November 2017, 

for example, Santos notified Balles that he would be out on 

military leave from November 5, 2017 through November 

19, 2017. Upon his return, Santos alleged that Balles instructed him to develop a report that required knowledge 

of what was discussed during a meeting that took place 

while he was on leave. Although Santos eventually obtained a copy of the meeting minutes and submitted the

report, Balles informed Santos that the report was unsatisfactory and asked another employee to redo Santos’s

work. Additionally, on February 13, 2018—one day after 

Balles had officially approved another request for Santos’s 

military leave—Balles issued a Letter of Instruction 

providing “explicit instructions concerning [Santos’s] use of 

leave, [] work schedule, and the recording of [] hours at 

work.”

According to Santos, this cycle repeated itself for the 

next few months: Balles would assign Santos a task that 

coincided with his military duty; Santos would be unable 

to complete the task due to his concurrent military obligations; and Balles would reprimand Santos for failing to 

complete the task to a satisfactory level. Santos also alleged that, when he expressed concerns about projects that 

would be due during his upcoming military leave, Balles 

responded that it was “his responsibility to figure out how 

to have everything covered.” And, Santos noted that Balles 

issued him a Letter of Reprimand for a training that had 

Case: 19-2345 Document: 44 Page: 4 Filed: 03/11/2021
SANTOS v. NASA 5

lapsed while he was out on military duty, but which he 

completed two days after returning from leave. 

On May 31, 2018, Balles placed Santos on a PIP for 45 

days and assigned him eleven deliverable assignments. 

Throughout this period, Balles met with Santos to discuss 

his progress and give him feedback on his work product. 

Because Santos’s military leave overlapped with the last 

two days of this probationary period, Balles allowed Santos

to make certain edits on the written assignments and to 

schedule presentations after the PIP period expired. Balles 

ultimately determined that Santos’s deliverables were unsatisfactory and proposed his removal based on a charge of 

unacceptable performance. Accordingly, Santos was removed from his position on September 26, 2018. 

Santos appealed his removal, arguing (inter alia) that 

it was retaliatory and violated USERRA. The Board affirmed. See Santos, 2019 WL 2176543. Pursuant to 5 

U.S.C. § 43, the Board considered whether NASA proved 

by substantial evidence that: (1) Santos’s performance 

failed to meet the PIP-established performance standards 

in one or more critical elements of his position; (2) NASA

established performance standards and critical elements 

and communicated them to Santos at the beginning of the 

PIP; (3) NASA warned Santos of the inadequacies of his 

performance during the PIP and gave him adequate opportunity to improve; and (4) after an adequate improvement 

period, Santos’s performance remained unacceptable in at 

least one critical element. Id. at *3. After considering the 

evidence related to Santos’s performance during the PIP, 

the Board concluded that NASA had “established by substantial evidence each of the elements necessary to have its 

decision to remove [Santos] using chapter 43 procedures 

sustained by the Board.” Id. at *11. Notably, the Board 

did not address Santos’s argument that he should not have 

been put on a PIP in the first place; the Board justified this 

decision by citing Wright v. Department of Labor, No. 

CH-0432-98-0134-I-1, 1999 WL 316948, at ¶ 12 (M.S.P.B. 

Case: 19-2345 Document: 44 Page: 5 Filed: 03/11/2021
6 SANTOS v. NASA

May 12, 1999), in which the Board held that “an agency is 

not required to prove that an appellant was performing unacceptably prior to the PIP.” Santos, 2019 WL 2176543, 

at *5. 

The Board also rejected Santos’s USERRA claim, holding that Santos failed to show that his uniformed service 

was a substantial or motivating factor in his removal. Id. 

at *11–12. In reaching this conclusion, the Board concluded that there was no evidence supporting Santos’s 

claim because Balles “thanked him for his service,” was 

“very patriotic,” and did not express to others that Santos 

took too much military leave. Id. at *12.

Santos appealed the Board’s decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II. DISCUSSION

This court holds unlawful and sets aside any agency

action, findings, or conclusions found to be “(1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or 

(3) unsupported by substantial evidence.” 5 U.S.C. 

§ 7703(c). The Board abuses its discretion when “its decision (1) is clearly unreasonable, arbitrary, or fanciful; (2) is

based on an erroneous conclusion of law; (3) rests on clearly 

erroneous fact findings; or (4) follows from a record that 

contains no evidence on which the [Board] could rationally 

base its decision.” Mayers v. Merit Sys. Prot. Bd., 693 F. 

App’x 902, 903 (Fed. Cir. 2017) (citing Sterling Fed. Sys., 

Inc. v. Goldin, 16 F.3d 1177, 1182 (Fed. Cir. 1994)). We 

review the Board’s underlying factual determinations for 

substantial evidence. McMillan v. Dep’t of Justice, 

812 F.3d 1364, 1371 (Fed. Cir. 2016). 

Santos argues that the Board’s determination was unlawful because (1) the AJ failed to consider the events preceding his PIP when assessing the propriety of his removal; 

Case: 19-2345 Document: 44 Page: 6 Filed: 03/11/2021
SANTOS v. NASA 7

(2) failed to engage in the correct legal inquiry when assessing his USERRA claim; and (3) predicated its conclusion that his military service was not a primary motivating 

factor in his removal on inadequate facts. We agree with 

Santos on each point.

A.

The statute governing post-PIP removals, 5 U.S.C. 

§ 4302, provides that employees “who continue to have unacceptable performance” may only be removed “after an opportunity to demonstrate acceptable performance.” 

5 U.S.C. § 4302(c)(6). The Board has held that this provision does not require an agency to prove that an employee

was performing unacceptably prior to the PIP in order to 

justify a post-PIP removal. See Wilson v. Dep’t of Navy, 

24 M.S.P.R. 583, 586 (1984) (finding “no statutory or regulatory basis” to require an agency to establish appellant’s

unsatisfactory performance prior to the PIP1). The Board 

has consistently applied this interpretation to PIP removals. See, e.g., Brown v. Veterans Admin., 44 M.S.P.R. 635, 

640 (1990) (“[I]f the employee’s performance is unacceptable during the PIP, the agency may generally base an action on this deficiency and need not also show that the 

employee’s performance was unacceptable prior to the PIP, 

as the Board held in Wilson . . . .”).

We have not directly addressed the question of 

whether, when an agency predicates removal on an employee’s failure to satisfy obligations imposed by a PIP and 

that removal is challenged, the agency must justify imposition of a PIP in the first instance under 5 U.S.C. § 4302, 

1 The Wilson Board interpreted 5 U.S.C. 

§ 4302(b)(6), a prior version of 5 U.S.C. § 4302(c)(6). Because the amended version predates the adverse employment action at issue here, this opinion refers to the more 

recent codification.

Case: 19-2345 Document: 44 Page: 7 Filed: 03/11/2021
8 SANTOS v. NASA

though we have discussed the general relevance of pre-PIP 

performance to a PIP removal. See Harris v. Sec. & Exch. 

Comm’n, 972 F.3d 1307, 1316–17 (Fed. Cir. 2020). Today

we confirm that the statute’s plain language demonstrates

that an agency must justify institution of a PIP when an 

employee challenges a PIP-based removal. 

Section 4302 requires agencies to develop a performance appraisal system that, inter alia, “provide[s] for periodic appraisals of job performance of employees.”

5 U.S.C. § 4302(a)(1). Section 4302(c) contains six subsections that detail what must comprise an agency’s performance appraisal system. Subsections (c)(5) and (c)(6) 

advise how an agency’s performance appraisal system 

should handle “unacceptable performance.” An agency’s

performance appraisal system should provide for “assisting 

employees in improving unacceptable performance,” 

5 U.S.C. § 4302(c)(5), as well as “reassigning, reducing in 

grade, or removing employees who continue to have unacceptable performance but only after an opportunity to 

demonstrate acceptable performance,” 5 U.S.C. 

§ 4302(c)(6) (emphasis added). Agencies usually provide 

employees “an opportunity to demonstrate acceptable performance” by placing them on a PIP. See Harris, 972 F.3d 

at 1311.

Thus, Section 4302(c)(6) makes clear that an agency is 

only allowed to “reassign[], reduc[e] in grade, or remov[e] 

employees who continue to have unacceptable performance” during a PIP. 5 U.S.C. § 4302(c)(6) (emphasis 

added). 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. Under the plain meaning of the statute, then, an 

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. 

Case: 19-2345 Document: 44 Page: 8 Filed: 03/11/2021
SANTOS v. NASA 9

The Office of Personnel Management (“OPM”), the 

agency tasked with implementing the performance appraisal system of Chapter 43, reads Section 4302 the same 

way. OPM published a regulation entitled “Addressing 

Unacceptable Performance,” which pertains to subsections 

(c)(5) and (c)(6) of Section 4302. See 5 C.F.R. § 432.104. 

OPM published a notice of final rulemaking on October 16, 

2020, amending this regulation to provide:

At any time during the performance appraisal cycle 

that an employee’s performance is determined to be 

unacceptable in one or more critical elements, the 

agency shall notify the employee of the critical element(s) for which performance is unacceptable and 

inform the employee of the performance requirement(s) or standard(s) that must be attained in order to demonstrate acceptable performance in his 

or her position. 

Id. Notably, OPM stated in its notice of final rulemaking 

that “[t]he amended rule does not relieve agencies of the 

responsibility to demonstrate that an employee was performing unacceptably – which per statute covers the period 

both prior to and during a formal opportunity period – before initiating an adverse action under chapter 43.” Probation on Initial Appointment to a Competitive Position, 

Performance-Based Reduction in Grade and Removal Actions and Adverse Actions, 85 Fed. Reg. 65940, 65957

(Oct. 16, 2020) (emphasis added). OPM’s statement accords with our understanding that Section 4302(c)(6) requires agencies to justify a challenged post-PIP-based 

removal by establishing the propriety of the PIP in the first 

instance. 

Our holdings in Harris and Lovshin v. Department of 

Navy, 767 F.2d 826 (Fed. Cir. 1985) are not inconsistent 

with this reading of Section 4302. Lovshin delineated four 

requirements agencies must satisfy before removing an underperforming employee under Section 4303. Agencies 

Case: 19-2345 Document: 44 Page: 9 Filed: 03/11/2021
10 SANTOS v. NASA

must: (a) establish an approved performance appraisal system; (b) communicate the performance standards and critical elements of an employee’s position to the employee; 

(c) warn the employee of inadequacies in “critical elements”; and (d) offer an underperforming employee counseling and an opportunity for improvement. Lovshin, 767 

F.2d at 834. There, we emphasized that these requirements are consistent with fundamental fairness to employees. Harris clarified the third Lovshin element, holding 

that “the PIP notice itself often serves as the warning” of a 

performance problem. Harris, 972 F.3d at 1316. 

But, Harris also confirmed that pre-PIP performance 

by the terminated employee and the agency’s pre-PIP 

treatment of the employee may be relevant to the removal 

inquiry. See Harris, 972 F.3d at 1316–1317. While we did 

not find the pre-PIP evidence in Harris sufficient to override the agency’s removal decision, we expressly discussed 

the AJ’s consideration of it, concluding that the AJ had adequately done so in that case. Id. at 1320–21.

Confirming an agency’s obligation to justify initiation 

of a PIP where the PIP leads to removal is particularly appropriate, moreover, in situations resembling Santos’s, 

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. Indeed, these are the circumstances in which the issue of pre-PIP performance 

would be most relevant.

NASA agrees that, pursuant to § 4302(c)(6), “the employee in question must have had unacceptable performance prior to being placed on a PIP.” It, thus, appears to 

agree with Santos that the Board’s longstanding practice 

of ignoring pre-PIP circumstances is erroneous. NASA

Case: 19-2345 Document: 44 Page: 10 Filed: 03/11/2021
SANTOS v. NASA 11

maintains, however, that Section 4303 governs the PIP 

process and is silent on whether agencies bear the burden 

of establishing the unacceptability of pre-PIP performance

where a post-PIP removal is challenged. Section 4303’s silence, according to NASA, signals that the burden rests on 

the “employee to demonstrate that the agency’s action was 

improper.” NASA also asserts that, since “an agency is not 

required [under Harris] to even notify an employee of unacceptable performance prior to the issuance of the PIP,” 

“there [must be] no requirement that an agency affirmatively establish unacceptable performance prior to the issuance of the PIP.” 

NASA’s arguments miss the mark. In our July 1, 2020 

Order, we directed the parties to brief “whether, pursuant 

to 5 U.S.C. § 4302(c)(6), an agency must establish that an 

employee had ‘unacceptable performance’ prior to the implementation of a [PIP].” Order Requesting Supplemental 

Briefing, No. 19-2345 (July 1, 2020), ECF 31, at 2 (emphasis in original). Instead of discussing Section 4302, NASA

analyzes Section 4303, erroneously reasoning that

“[w]hether an agency’s action in issuing a PIP was proper 

is governed by Section 4303.” But we have made clear that 

Section 4302 governs the statutory PIP process. See, e.g.,

Harris, 972 F.3d at 1311; see also Moltzen v. Dep’t of Labor, 

504 F. App’x 912, 914 (Fed. Cir. 2013). NASA’s argument

concerning Section 4303’s silence on an agency’s burden to 

prove that an employee’s pre-PIP performance was unacceptable ignores the most relevant statutory language—

that in Section 4302(c)(6). 

NASA’s reliance on Harris is also misplaced. To be 

sure, an employee may not seek review of the decision to 

implement a PIP at the time it is instituted, either at the 

Board or otherwise. And, as Harris makes clear, the institution of the PIP can itself satisfy the notice component of 

Section 4303, but, when an agency chooses to remove an 

employee at the end of the PIP period, pre-PIP conduct may 

be relevant to the removal decision, as Harris also 

Case: 19-2345 Document: 44 Page: 11 Filed: 03/11/2021
12 SANTOS v. NASA

confirms. Allowing a PIP to serve as the pre-removal notice 

required by Section 4303 is not the same as allowing the 

mere fact of a PIP to create a presumption that the pre-PIP 

conduct was actually unacceptable. Thus, we hold that, 

once an agency chooses to impose 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.

Importantly, we are not prescribing any particular evidentiary showing with respect to the employee’s pre-PIP 

performance. Performance failures can be documented or 

established in any number of ways. The burden would then 

shift to the employee to prove that the motive for imposing 

the PIP and, ultimately termination, was discriminatory 

under well-established guidelines for making such a showing.

Because the Board’s decision to not consider Santos’s 

allegation that he should never have been placed on a PIP 

was based on a misinterpretation of Section 4302(c)(6), we 

find that the Board abused its discretion. We therefore vacate and remand this issue for the Board to decide whether 

NASA established that Santos performed unacceptably 

prior to being placed on the PIP, thus satisfying the “continue[d] to have unacceptable performance” language under 5 U.S.C. § 4302(c)(6). 

B.

Santos also argues that, even if some aspects of his performance were unacceptable, his military service was a primary motivating factor in his removal. USERRA

“prohibit[s] discrimination against persons because of their 

service in the uniformed services.” 38 U.S.C. § 4301(a)(3). 

The act prohibits an agency from denying any person who 

has a military obligation “any benefit of employment by an 

employer on the basis of . . . performance of service.” 

38 U.S.C. § 4311(a). As we articulated in Sheehan v. Department of Navy, 240 F.3d 1009 (Fed. Cir. 2001), “an 

Case: 19-2345 Document: 44 Page: 12 Filed: 03/11/2021
SANTOS v. NASA 13

employee making a USERRA claim of discrimination

. . . bear[s] the initial burden of showing by a preponderance of the evidence that the employee’s military service 

was ‘a substantial or motivating factor’ in the adverse employment action.” Id. at 1013. It need not be the only motivating factor, but it must be a substantial one. Sheehan 

establishes four non-exclusive factors that can help the 

Board determine whether a discriminatory motivation may 

reasonably be inferred in a USERRA challenge: 

[1] proximity in time between the employee’s military activity and the adverse employment action, 

[2] inconsistencies between the proffered reason 

and other actions of the employer, [3] an employer’s 

expressed hostility towards members protected by 

the statute together with knowledge of the employee’s military activity, and [4] disparate treatment of certain employees compared to other 

employees with similar work records or offenses.

Id. at 1014. Once the employee has made the requisite 

showing, “the employer then has the opportunity to come 

forward with evidence to show, by a preponderance of the 

evidence, that the employer would have taken the adverse 

action anyway, for a valid reason.” Id. at 1013. “[A]n employer [cannot] treat employees on military duty like those 

on nonmilitary leave of absence.” Erickson v. U.S. Postal 

Serv., 571 F.3d 1364, 1369 (Fed. Cir. 2009) (internal quotation marks omitted).

Because we vacate and remand the Board’s conclusions 

regarding Santos’s performance, we must vacate and remand the Board’s assessment of Santos’s USERRA claim 

as well. The two inquiries are related since the validity of 

the reason proffered for a discharge is a factor in the 

Sheehan analysis. The events leading to Santos’s PIP may 

be directly relevant to Santos’s ability to satisfy his initial 

burden under USERRA. We therefore vacate and remand 

this issue to the Board for additional fact findings 

Case: 19-2345 Document: 44 Page: 13 Filed: 03/11/2021
14 SANTOS v. NASA

concerning Santos’s pre-PIP performance and Ms. Balles’s 

motivations for instituting the PIP. 

We make clear, moreover, that, on remand, the Board 

must actually apply the Sheehan factors, which it has not 

yet done. Santos argued to the Board that “his removal 

was discriminatory because . . . management held the time 

he was absent for military service against him.” Santos, 

2019 WL 2176543, at *12. And he detailed the extent to 

which reprimands or complaints about his performance 

dovetailed with his requests to fulfill his military obligations. The Board simply concluded that Santos failed to 

show his military service was a substantial or motivating 

factor in his removal because Balles “thanked [Santos] for 

his service” and was “very patriotic.” Id. Those minimal 

factual findings do not suffice under Sheehan. On remand, 

the Board must apply the Sheehan factors to all the facts 

concerning Santos’s performance and Balles’s supervision 

of Santos, both pre- and post-PIP.2

III. CONCLUSION

For the reasons discussed above, we conclude that the 

Board’s decisions were not in accordance with the law. We 

therefore vacate and remand for further proceedings consistent with this decision. 

VACATED AND REMANDED

COSTS

Costs to petitioner. 

2 The Board must consider, inter alia, Santos’s allegations that the timing of his letters of reprimand, the PIP 

itself, and the nature of the PIP requirements are relevant 

to his USERRA claim.

Case: 19-2345 Document: 44 Page: 14 Filed: 03/11/2021
United States Court of Appeals 

for the Federal Circuit ______________________ 

FERNANDO SANTOS,

Petitioner

v.

NATIONAL AERONAUTICS AND SPACE 

ADMINISTRATION,

Respondent

______________________ 

2019-2345

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-0432-19-0074-I-1.

______________________ 

HUGHES, Circuit Judge, concurring in the judgment.

The Board failed to properly consider Mr. Santos’s 

claims pursuant to USERRA, including his claim that the 

agency’s decision to place him on a PIP in the first place 

was due to unlawful retaliation or discrimination prohibited by USERRA. I agree that the case should be remanded. Accordingly, I concur in the judgment.

Case: 19-2345 Document: 44 Page: 15 Filed: 03/11/2021