Fernando Santos v. National Aeronautics and Space Administration

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FERNANDO SANTOS,
Petitioner
v.
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION,
Respondent
______________________
2022-1808
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0432-19-0074-M-1.
______________________
Decided: July 30, 2024
______________________
CHRISTOPHER H UGH BONK, Gilbert Employment Law,
P.C., Silver Spring, MD, argued for petitioner. Also repre-
sented by K EVIN O WEN, J AMES WILSON RICHARD, II.
ROBERT R. K IEPURA , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
BRIAN M. BOYNTON, CLAUDIA B URKE, P ATRICIA M.
MCCARTHY .
______________________
Case: 22-1808 Document: 48 Page: 1 Filed: 07/30/2024

-- 1 of 11 --

SANTOS v. NASA 2
Before D YK, CUNNINGHAM , Circuit Judges, and
BENCIVENGO, District Judge1.
CUNNINGHAM , Circuit Judge.
Mr. Fernando Santos petitions for review of a Merit
Systems Protection Board decision affirming the National
Aeronautics and Space Administration’s (“NASA”) decision
to remove Mr. Santos from his position as Mechanical En-
gineer, GS-0830-13. Santos v. NASA, No. AT-0432-19-
0074-M-1, 2022 WL 509262 (M.S.P.B. Feb. 17, 2022) (“De-
cision”) (J.A. 40–772). The Board’s decision followed a 2021
Federal Circuit decision, Santos v. NASA, 990 F.3d 1355
(Fed. Cir. 2021), that vacated an earlier Board decision,
Santos v. NASA, No. AT-0432-19-0074-I-1, 2019 WL
2176543 (M.S.P.B. May 21, 2019) (J.A. 1–39), and re-
manded for further proceedings. For the reasons below, we
affirm.
I. BACKGROUND
Mr. Santos became a NASA employee in 2000. Deci-
sion at 2; see also J.A. 1654. In April 2017, he joined the
newly formed Ground Systems Branch in the Commercial
Systems Division of the Engineering Directorate as a Me-
chanical Engineer. Decision at 2–3; J.A. 2.3 Ms. Angela M.
Balles, Chief of the Ground Systems Branch, was his first-
line supervisor in this role. Decision at 3; J.A. 1017.
1 Honorable Cathy Ann Bencivengo, District Judge,
United States District Court for the Southern District of
California, sitting by designation.
2 Because the reported version of the Board’s deci-
sion is not paginated, citations in this opinion are to the
version of the Board’s decision included in the Joint Appen-
dix. For example, Decision at 1 is found at Joint Appendix
40. 3 The decision on review adopts background facts
from the earlier Board decision involving Mr. Santos, and
we cite to this earlier decision as appropriate.
Case: 22-1808 Document: 48 Page: 2 Filed: 07/30/2024

-- 2 of 11 --

SANTOS v. NASA 3
Throughout Mr. Santos’s time with NASA, he also was an
Engineering Duty Officer in the U.S. Navy Reserve. J.A.
2; J.A. 217. From April 2017 through July 2018, Mr. San-
tos took several periods of military leave. Decision at 22–
23; J.A. 594.
During the period relevant to our review, Mr. Santos
was first assigned to work with Ms. Michele Veneri on a
“certification” involving a risk-based engineering assess-
ment for certain ground systems. Decision at 3–4; J.A.
1420. In October 2017, Mr. Santos was assigned to be the
technical lead for Hazard Report CCTS-30.0 working with
Mr. Michael Haddock, a System Manager in the Ground
Systems Branch. Decision at 4–6; J.A. 545; S. App’x 1, Tab
45, Part 8 at 2:43–2:53.
During Mr. Santos’s time in the Ground Systems
Branch, Ms. Balles met with him several times concerning
his job performance. In an October 2017 “mid-term pro-
gress review,” Ms. Balles shared concerns from Ms. Veneri
about his “lack of engagement and work product” on the
certification project. Decision at 7; J.A. 326; J.A. 1528–29.
In January 2018, Ms. “Balles met with [Mr. Santos] to dis-
cuss his work product concerning the CCTS-30.0,” and com-
municated that “he was not meeting expectations.”
Decision at 10; J.A. 899. They also agreed that his work
schedule would be a standard “tour of duty . . . from 9:00
a.m. to 5:30 p.m., with a half hour ‘band of flexibility’ until
9:30 a.m. if needed.” Decision at 10; J.A. 899. In February
2018, Ms. Balles issued Mr. Santos “a Letter of Instruction
that contained explicit instructions concerning his work
schedule and use of leave” to address issues with his time,
attendance, and performance. Decision at 14; J.A. 644–47.
On May 2, 2018, Ms. Balles issued Mr. Santos a Letter of
Reprimand “stat[ing] that since October 24, 2017, [Mr.
Santos] had repeatedly failed to timely complete manda-
tory training requirements, resulting in Balles having to
send him multiple written instructions.” Decision at 18;
J.A. 695–96.
Case: 22-1808 Document: 48 Page: 3 Filed: 07/30/2024

-- 3 of 11 --

SANTOS v. NASA 4
On May 31, 2018, Ms. Balles placed Mr. Santos on a
Performance Improvement Plan (“PIP”). Decision at 18;
J.A. 270–75. Following the PIP period, “Ms. Balles deter-
mined that [Mr. Santos] had not raised his performance to
an acceptable level, and on August 27, 2018, proposed his
removal based on a charge of unacceptable performance.”
J.A. 4; J.A. 126–51. After Mr. Santos responded, effective
September 26, 2018, the agency issued its decision sustain-
ing Mr. Santos’s proposed removal “[i]n accordance with
the provisions of 5 U.S. Code Chapter 43 and Title 5 Code
of Federal Regulations Part 432.” J.A. 120–24; J.A. 4.
Mr. Santos appealed to the Board. J.A. 4. In May 2019,
the Board issued its initial decision affirming the agency’s
decision to remove Mr. Santos. J.A. 1. Relevant to this
petition for review, the Board rejected Mr. Santos’s claim
that his removal violated the Uniformed Services Employ-
ment and Reemployment Rights Act (“USERRA”), which
“prohibits discrimination in employment on the basis of
military service.” Sheehan v. Dep’t of Navy, 240 F.3d 1009,
1012 (Fed. Cir. 2001); see also 38 U.S.C. § 4311. The Board
found that Mr. Santos “failed to show that his uniformed
service was a substantial or motivating factor in his re-
moval.” J.A. 24. Mr. Santos petitioned for review of the
Board’s decision by this court. Santos, 990 F.3d at 1358.
In our 2021 decision, we vacated the Board’s decision,
holding that the Board “did not adequately analyze his
USERRA claim.” Id. We explained that “[t]he events lead-
ing to Santos’s PIP may be directly relevant to Santos’s
ability to satisfy his initial burden under USERRA.” Id. at
1364. We also held that in its analysis of the USERRA
claims, “the Board must apply the Sheehan factors to all
the facts concerning Santos’s performance and Balles’s su-
pervision of Santos, both pre- and post-PIP.” Id. We re-
manded for further proceedings consistent with our 2021
decision. Id.
Case: 22-1808 Document: 48 Page: 4 Filed: 07/30/2024

-- 4 of 11 --

SANTOS v. NASA 5
On remand, the Board4 found that Mr. Santos “failed
to prove his uniformed service was a substantial or moti-
vating factor in the agency’s actions.” Decision at 30. The
Board applied the Sheehan factors, finding that only one of
the factors—proximity in time between military service
and agency actions—weighed in his favor, while the others
supported the agency. Id. at 25–30. The Board affirmed
the agency’s action removing him. Id. at 30.
Mr. Santos timely petitioned for review. We have ju-
risdiction under 28 U.S.C. § 1295(a)(9).
II. STANDARD OF REVIEW
We set aside a Board decision if it is “(1) arbitrary, ca-
pricious, an abuse of discretion, or otherwise not in accord-
ance with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c); see also
Standley v. Dep’t of Energy, 26 F.4th 937, 942 (Fed. Cir.
2022), cert. denied, 142 S. Ct. 2873 (2022). “Underlying
factual determinations are reviewed for substantial evi-
dence.” McMillan v. Dep’t of Just., 812 F.3d 1364, 1371
(Fed. Cir. 2016) (citation omitted). Substantial evidence
means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (internal
quotation marks and citation omitted).
III. D ISCUSSION
Before this court, Mr. Santos argues the Board erred in
its USERRA analysis. First, he asserts that he “presented
sufficient evidence to establish a prima facie case of dis-
criminatory motive based on the temporal proximity of Mr.
Santos’ military activity and the Agency’s adverse employ-
ment actions.” Pet’r’s Br. 22. Next, he contends that there
were inconsistencies between the agency’s reasons for its
4 As of March 24, 2022, the initial decision of the ad-
ministrative judge became the final decision of the Board.
Decision at 30.
Case: 22-1808 Document: 48 Page: 5 Filed: 07/30/2024

-- 5 of 11 --

SANTOS v. NASA 6
adverse actions against Mr. Santos. Pet’r’s Br. 36; Pet’r’s
Reply Br. 4. Finally, he argues that the Board erred by
failing to properly consider evidence and testimony of Ms.
Balles’s and Mr. Haddock’s frustration, resentment and
hostility regarding Mr. Santos’s absences and leave. Pet’r’s
Br. 28–29, 31. As we explain below, we reject Mr. Santos’s
arguments, and we hold that the Board’s decision was sup-
ported by substantial evidence.
“[A]n employee making a USERRA claim of discrimi-
nation . . . bear[s] the initial burden of showing by a pre-
ponderance of the evidence that the employee’s military
service was ‘a substantial or motivating factor’ in the ad-
verse employment action.”5 Sheehan, 240 F.3d at 1013. In
Sheehan, we explained:
[d]iscriminatory motivation under the USERRA
may be reasonably inferred from a variety of fac-
tors, including [(1)] proximity in time between the
employee’s military activity and the adverse em-
ployment 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 com-
pared to other employees with similar work records
or offenses.
Id. at 1014.
As to factor one, the Board found that “the proximity in
time between [Mr. Santos’s] military service and some of
the agency’s actions in 2018 weigh in favor of the
5 “If this requirement is met, 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.”
Sheehan, 240 F.3d at 1013.
Case: 22-1808 Document: 48 Page: 6 Filed: 07/30/2024

-- 6 of 11 --

SANTOS v. NASA 7
appellant.” Decision at 25. The Board noted that Ms.
Balles communicated concerns regarding Mr. Santos’s per-
formance in January 2018, shortly before he took military
leave. Id.; J.A. 899. It also considered the fact that Ms.
Balles issued the February Letter of Instruction and May
Letter of Reprimand shortly after he returned from mili-
tary leave. Decision at 25–26; J.A. 644. The Board’s deter-
mination that this factor weighed in favor of Mr. Santos
was supported by substantial evidence.
Mr. Santos asserts that the evidence of temporal prox-
imity alone was sufficient “to establish a prima facie case
of discriminatory motive” in Mr. Santos’s removal. Pet’r’s
Br. 22. But the Board considered this evidence, along with
evidence concerning the other factors and found that Mr.
Santos failed to meet his burden. Even if a factfinder could
have found evidence of temporal proximity sufficient to
meet his burden, “[i]t is not for this court to reweigh the
evidence before the Board.” McMillan, 812 F.3d at 1371
(internal quotation marks and citation omitted).
The Board found that “the second Sheehan factor, in-
consistencies between the proffered reason and other ac-
tions of the employer, favored the agency.” Decision at 26.
It held that “[t]he agency’s proffered reasons for its actions,
i.e., the Letter of Instructions, the Letter of Reprimand, the
PIP, and ultimately the removal, are consistent.” Id. Mr.
Santos asserts that there were “myriad inconsistencies be-
tween the [a]gency’s proffered reasons for its actions” and
the employment actions ultimately taken by the agency.
Pet’r’s Br. 36. We disagree.
Mr. Santos first challenges the Board’s analysis of the
February 2018 Letter of Instruction and decision to place
Mr. Santos on a regular work schedule beginning in Janu-
ary 2018. Pet’r’s Br. 36–38. But Mr. Santos bears the bur-
den of establishing that the agency acted inconsistently
with its stated rationale, see Sheehan, 240 F.3d at 1013,
and he fails to do so. The crux of his complaint is that the
agency never provided evidence “of a valid, non-discrimina-
tory reason” for altering his work schedule in either
Case: 22-1808 Document: 48 Page: 7 Filed: 07/30/2024

-- 7 of 11 --

SANTOS v. NASA 8
January or February 2018. Pet’r’s Br. 38. Mr. Santos ar-
gues the Board erred in accepting the agency’s explanation
for issuing the Letter of Instruction––that he often arrived
late to work––because he was on a flexible work schedule
without any set hours. Pet’r’s Br. 37; Decision at 26. How-
ever, Mr. Santos had been placed on a regular schedule
prior to the issuance of the Letter of Instruction, J.A. 899,
and he provides no evidence disputing that he failed to
abide by this schedule. See Decision at 26 (noting Mr. San-
tos “did not dispute that he often arrived late”). The
Board’s conclusion was supported by the record.
He next challenges the Letter of Reprimand, which the
Board found “was issued because he failed to [complete
mandatory trainings] on time or without being reminded.”
Decision at 26; J.A. 695–96; see also Pet’r’s Br. 38–39. He
generally asserts that “the [a]gency failed to provide a le-
gitimate reason” for its action. Pet’r’s Br. 38. He also ar-
gues that the Board “failed to address why Ms. Balles
issued the [Letter of Reprimand] in May 2018 for matters
that apparently occurred in October 2017.” Id. (citing De-
cision at 26). As an example, the Board discussed the Oc-
tober 2017 training for which Ms. “Balles had to remind
him three times” to “complete the ethics training on time.”
Decision at 26 (citing Initial Appeal File, Tab 34 at 14–15).
Moreover, the May 2018 letter discussed several different
trainings, J.A. 695, and there is additional record evidence
concerning trainings being late. See, e.g., J.A. 334 (noting
Mr. Santos’s “travel card training [was] overdue by 6 days”
on January 19, 2018). We disagree that Mr. Santos’s chal-
lenges to the Letter of Reprimand support a basis for re-
versal.
Finally, Mr. Santos challenges the agency’s rationale
for placing him on the PIP and ultimately removing him.
He argues that he “provided numerous instances of his sat-
isfactory performance during the relevant rating period, in
contrast to the inability of [a]gency witnesses to articulate
any specifics about [his] alleged deficiencies.” Pet’r’s Reply
Br. 5. We are not convinced the Board erred. The Board
Case: 22-1808 Document: 48 Page: 8 Filed: 07/30/2024

-- 8 of 11 --

SANTOS v. NASA 9
discussed specific feedback from Ms. Veneri, Mr. Haddock,
and Ms. Balles, noting that “all of the agency’s witnesses
testified concerning the lack of quality in [Mr. Santos’s]
work product as early as the summer of 2017.” Decision at
27; see also J.A. 1422–23 (testimony from Ms. Veneri); J.A.
1487 (testimony from Mr. Haddock); J.A. 1528–29, 1549–
51, 1570–71 (testimony from Ms. Balles). It also cited Ms.
Balles’s determination that “he did not raise his perfor-
mance to an acceptable level” during the PIP. Decision at
27; J.A. 126–51 (notice of proposed removal discussing Mr.
Santos’s continued underperformance). Additionally, the
Board specifically found Mr. Santos’s “assertion that his
performance prior to the PIP was successful [to be] unper-
suasive.” Decision at 20. Here too, it is not our role to “re-
weigh conflicting evidence.” Bieber v. Dep’t of Army, 287
F.3d 1358, 1364 (Fed. Cir. 2002). Accordingly, Mr. Santos
fails to identify reversible error.
The Board found that the “third factor, an employer’s
expressed hostility towards members protected by the stat-
ute together with knowledge of the employee’s military ac-
tivity, also weighs in the agency’s favor.” Decision at 27.
Substantial evidence also supports the Board’s conclusion
regarding this factor. For example, the Board noted that
Mr. Santos “admitted that Balles never denied his requests
for military leave or overtly push[ed] back.” Id. It also
noted that in a May 2018 email, Ms. Balles told Mr. Santos
she was “fully supportive of any leave taken for military
orders and there is no negative impact to [his] NASA job or
performance as a result of being out on approved military
orders.” J.A. 362; Decision at 29 (citing id.).
Mr. Santos argues the Board failed to properly assess
“direct evidence of animus toward Mr. Santos’s military ob-
ligations,” citing testimony from Ms. Balles and Mr. Had-
dock. Pet’r’s Br. 28–29. As evidence of Ms. Balles’s alleged
hostility, Mr. Santos cites Mr. Haddock’s testimony that
Ms. Balles had “questions over the frequency” of Mr. San-
tos’s military leave “from a government worker stand-
point,” and whether he “was taking more military leave
Case: 22-1808 Document: 48 Page: 9 Filed: 07/30/2024

-- 9 of 11 --

SANTOS v. NASA 10
than he could officially take.” S. App’x 1, Tab 45, Part 9 at
37:20–38:24; Pet’r’s Br. 29 n.12 (citing id.). As evidence of
Mr. Haddock’s alleged hostility, Mr. Santos cites Ms.
Balles’s testimony that Mr. Haddock was frustrated be-
cause “Mr. Santos had a pattern of . . . going on leave
. . . and not passing the ball off to somebody . . . or not reen-
gaging when he came back from [approved leave].” S.
App’x 1, Tab 45, Part 1 at 47:40–48:08; Pet’r’s Br. 29 n.10
(citing id.). Moreover, Mr. Santos cites Mr. Haddock’s tes-
timony that he was concerned about how Mr. Santos’s leave
would impact certain work assignments, S. App’x 1, Tab
45, Part 8 at 16:45–17:16; Pet’r’s Br. 29 n.11 (citing id.),
and expressed skepticism regarding his use of military
leave based on its timing, S. App’x 1, Tab 45, Part 8 at
19:00–20:02; Pet’r’s Br. 29 n.13 (citing id.).
The evidence Mr. Santos cites fails to persuade us that
the Board’s determinations concerning hostility and dis-
criminatory animus were unsupported. Questioning
whether all of Mr. Santos’s military leave was authorized
is not an expression of hostility towards authorized mili-
tary leave. Neither is expressing frustration about Mr.
Santos’s failure to hand off assignments before taking
leave or to reengage upon return. We do not discern other
evidence of hostility, nor are these comments “evidence of
an employer’s general atmosphere of discrimination.”
Pet’r’s Br. 29; see also, e.g., Staub v. Proctor Hosp., 562 U.S.
411, 414 (2011) (describing evidence of hostility where mil-
itary obligations were described as “a bunch of smoking
and joking and a waste of taxpayers’ money”) (cleaned up).
Accordingly, these comments fail to persuade us that the
Board’s findings were unsupported by substantial evi-
dence.
We are also unpersuaded that the Board erred by ig-
noring evidence. The Board’s “failure to explicitly discuss
every issue or every piece of evidence does not alone estab-
lish that the tribunal did not consider it.” Novartis AG v.
Torrent Pharms. Ltd., 853 F.3d 1316, 1328 (Fed. Cir. 2017).
In addition to testimony from Mr. Santos, the Board
Case: 22-1808 Document: 48 Page: 10 Filed: 07/30/2024

-- 10 of 11 --

SANTOS v. NASA 11
extensively discussed testimony from Ms. Balles and Mr.
Haddock. See, e.g., Decision at 2–20, 27–28. It also dis-
cussed and made findings concerning each of the Sheehan
factors. See id. at 25–30.
Turning to the fourth and final factor, the Board found
“no evidence showing the agency treated employees whose
performance was also unacceptable but who did not per-
form military duty differently.” Id. at 29. Mr. Santos
raises no arguments before us concerning this factor, nor
do we discern any evidence that casts doubt on this conclu-
sion.
“After considering the Sheehan factors individually
and collectively,” the Board concluded that Mr. Santos
“failed to prove his uniformed service was a substantial or
motivating factor in the agency’s actions.” Id. at 30. We
agree that the record provides substantial evidence to sup-
port this conclusion.
IV. CONCLUSION
We have considered Mr. Santos’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s final decision.
AFFIRMED
COSTS
No costs.
Case: 22-1808 Document: 48 Page: 11 Filed: 07/30/2024

-- 11 of 11 --