Kitlinski v. Merit Systems Protection Board
2017 U.S. App. LEXIS 9512
| Fed. Cir. | 2017Background
- Petitioner Darek Kitlinski, a DEA employee and Coast Guard reservist on extended active duty, discovered a DEA-branded Blackberry device under the hood of his car after a DEA deposition; he suspected it was planted to monitor him.
- Kitlinski and his wife reported the device to FBI and DOJ-OIG; DOJ-OIG referred it to DEA Office of Professional Responsibility (OPR).
- OPR investigators contacted Mrs. Kitlinski (who gave the device to counsel) and later met with Kitlinski at Coast Guard headquarters and requested the device and an interview. Kitlinski refused and filed a USERRA claim with the MSPB alleging discrimination, retaliation, and a hostile work environment.
- An MSPB administrative judge dismissed for lack of jurisdiction, finding Kitlinski failed to nonfrivolously allege a USERRA violation as the Blackberry placement and subsequent investigation did not deny an employment benefit, constitute adverse employment actions, or create sufficiently severe harassment.
- The full Board affirmed those rulings but did not decide whether the alleged hostile work environment constituted unlawful retaliation under USERRA §4311(b).
- The Federal Circuit affirmed the Board on the three addressed claims, vacated and remanded for the Board to consider the unaddressed claim that the hostile-work-environment was retaliatory under §4311(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether placement of the Blackberry or OPR investigation denied a “benefit of employment” under USERRA §4311(a) | Blackberry and ensuing investigation interfered with employment-related benefits and thus violated §4311(a) | Device placement and investigation are not terms/conditions/privileges of employment and did not deny an employment benefit | Held: No — did not nonfrivolously allege denial of a benefit of employment |
| Whether the Blackberry incident + investigation created a hostile work environment discriminatory on basis of military status under §4311(a) | These acts were motivated by anti-military animus and thus formed an actionable hostile work environment | No allegation or evidence that actions were motivated by military status; incidents were isolated and not severe | Held: No — failed to allege hostile work environment based on military status |
| Whether the Blackberry incident or investigation constituted discrete retaliatory acts (adverse employment actions) under §4311(b) | Placement and investigation were retaliatory acts taken because of prior USERRA activity | §4311(b) prohibits only discrimination in employment or adverse employment actions; device placement and investigation did not affect employment status | Held: No — did not nonfrivolously allege adverse employment action or discrimination in employment |
| Whether the alleged hostile work environment constituted unlawful retaliation under §4311(b) | Hostile environment was motivated by reprisal for prior USERRA claims and thus actionable under §4311(b) | Board did not address; court requested Board to decide in first instance | Held: Vacated and remanded to MSPB for consideration of retaliation-based hostile-work-environment claim |
Key Cases Cited
- Erickson v. U.S. Postal Serv., 571 F.3d 1364 (Fed. Cir. 2009) (military service must be a substantial or motivating factor for USERRA discrimination jurisdiction)
- Sheehan v. Dep’t of the Navy, 240 F.3d 1009 (Fed. Cir. 2001) (same standard for nonfrivolous USERRA claim)
- Lourens v. Merit Sys. Prot. Bd., 193 F.3d 1369 (Fed. Cir. 1999) (jurisdictional pleading standard for USERRA claims)
- Thomsen v. Dep’t of the Treasury, 169 F.3d 1378 (Fed. Cir. 1999) (nexus between alleged denied benefit and employment is essential for USERRA §4311(a) claims)
- Lisdahl v. Mayo Found., 633 F.3d 712 (8th Cir. 2011) (§4311(b) construed to prohibit only employment discrimination or adverse employment actions)
- Crews v. City of Mt. Vernon, 567 F.3d 860 (7th Cir. 2009) (distinguishing Title VII anti-retaliation scope from narrower §4311(b) language)