994 F.3d 224
4th Cir.2021Background
- Darek Kitlinski was a DEA special agent and active-duty U.S. Coast Guard member; his wife Lisa Kitlinski was a DEA forensic chemist at headquarters. Darek sought transfers to be co-located with Lisa; he filed EEO and USERRA appeals after adverse personnel decisions.
- After a September 2014 DEA HQ deposition, the couple discovered a DEA-issued BlackBerry in Lisa’s car and alleged it had been planted to track them; they reported the incident to OIG and OPR, which opened an inquiry.
- Lisa initially declined to surrender the device and asserted spousal/attorney-client privileges during an OPR interview; OPR added her as a subject for failing to cooperate. OPR sought to interview Darek at his Coast Guard duty station; Darek refused to attend and was added as a subject for noncooperation.
- OPR forwarded its investigative file to the DEA Board of Professional Conduct, which recommended termination; DEA terminated both Kitlinskis in January 2016 for their conduct in the investigation.
- The Kitlinskis sued under USERRA and Title VII alleging wrongful termination and retaliation; the district court granted summary judgment for the DEA, later amended on remand to address USERRA claims, and again granted judgment for the DEA.
- On appeal, the Fourth Circuit affirmed: it found no evidence that military status or USERRA/Title VII-protected activity motivated the terminations, and it rejected the Kitlinskis’ procedural and discovery challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Darek’s termination violated USERRA (discrimination/retaliation under §4311) | Darek says OPR lacked authority to compel an active-duty interview; refusal to attend was protected by USERRA and prior protected activity motivated termination | DEA says termination was for refusal to cooperate with an internal investigation; no military-based reason prevented attendance | Affirmed for DEA — no evidence military service or prior USERRA activity was a motivating factor in termination |
| Whether Lisa’s termination violated USERRA (§4311(b) retaliation) | Lisa says she supported Darek’s USERRA appeal and cited that appeal when refusing to answer; termination was retaliatory | DEA says termination was for insubordination/disruptive conduct during OPR interview, not for protected USERRA activity | Affirmed for DEA — record shows only nondiscriminatory reason (conduct in OPR interview); protected activity not a motivating factor |
| Whether terminations violated Title VII (retaliation) | Kitlinskis claim prior EEO/Title VII activity prompted retaliation via the OPR-driven terminations | DEA contends terminations resulted from nonprotected conduct (failure to cooperate); no causal link to prior EEO activity | Affirmed for DEA — no evidence of causal connection between protected Title VII activity and terminations |
| Procedural claims: denial of evidentiary hearing; denial to reopen discovery; protective order blocking IG Horowitz deposition | Kitlinskis argue the district court abused discretion and discovery rulings prevented access to key evidence | DEA argues the court acted within its discretion, discovery requests were irrelevant or waived, and local/federal rules allow rulings without a hearing | Affirmed — court did not abuse discretion; discovery denial reasonable given relevance and DEA representations; deposition objection waived for failing to object to magistrate judge |
Key Cases Cited
- Wai Man Tom v. Hosp. Ventures LLC, 980 F.3d 1027 (4th Cir. 2020) (summary-judgment facts viewed in plaintiff-favor on review)
- Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006) (USERRA construed broadly in favor of servicemembers)
- Harwood v. Am. Airlines, Inc., 963 F.3d 408 (4th Cir. 2020) (plaintiff must show service was a motivating factor under §4311)
- Butts v. Prince William Cnty. Sch. Bd., 844 F.3d 424 (4th Cir. 2016) (USERRA protects against discrimination based on service)
- Escher v. BWXT Y-12, LLC, 627 F.3d 1020 (6th Cir. 2010) (motivating-factor proof explained — employer would list protected status if it motivated decision)
- McMillan v. DOJ, 812 F.3d 1364 (Fed. Cir. 2016) (distinguishing conduct required by military obligations from non-military reasons for nonattendance)
- Armstrong v. Index Journal Co., 647 F.2d 441 (4th Cir. 1981) (balancing test for whether opposition activity is protected)
- Strothers v. City of Laurel, 895 F.3d 317 (4th Cir. 2018) (elements for Title VII retaliation claim)