Kitlinski v. Merit Systems Protection Board

United States Court of Appeals

for the Federal Circuit

______________________

DAREK J. KITLINSKI,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________

2016-1498

______________________

Petition for review of the Merit Systems Protection

Board in No. SF-4324-15-0088-I-1.

______________________

Decided: May 31, 2017

______________________

KEVIN EDWARD BYRNES, The Law Offices of Kevin E.

Byrnes, PLLC, Washington, DC, argued for petitioner.

STEPHEN FUNG, Office of the General Counsel, Merit

Systems Protection Board, Washington, DC, argued for

respondent. Also represented by BRYAN G. POLISUK.

______________________

Before DYK, BRYSON, and CHEN, Circuit Judges.

BRYSON, Circuit Judge.

Petitioner Darek J. Kitlinski appeals from a decision

of the Merit Systems Protection Board dismissing various

2 KITLINSKI v. MSPB

claims he raised under the Uniformed Services Employ-

ment and Reemployment Rights Act of 1994 (“USERRA”),

38 U.S.C. § 4301-35. We affirm the Board’s final order in

part, but vacate and remand for further proceedings on

Mr. Kitlinski’s claim of a hostile work environment based

on reprisal for his protected activity under USERRA.

I

During the period at issue in this case, Mr. Kitlinski

was employed by the Drug Enforcement Administration

(“DEA”), an agency within the U.S. Department of Jus-

tice. He was assigned to the DEA’s field office in San

Diego. At the same time, Mr. Kitlinski served as a reserv-

ist in the United States Coast Guard. In 2011, he was

recalled to active duty in the Coast Guard, and for an

extended period he served full-time at the Coast Guard

headquarters in Washington, D.C.

Mr. Kitlinski has had several run-ins with the DEA.

At the time of the events at issue in this case, Mr. Kitlin-

ski had two USERRA complaints and an equal employ-

ment opportunity (“EEO”) complaint pending against that

agency. His USERRA complaints were based on the

DEA’s responses to his requests to be transferred from the

DEA’s San Diego field office to either the Washington,

D.C., field office or DEA headquarters in Arlington,

Virginia, where Mr. Kitlinski’s wife worked. His EEO

complaint alleged that the agency had unreasonably

denied his request for a transfer and had failed to select

him for two positions in DEA’s Washington, D.C., Divi-

sion. He alleged that the denial of his transfer request

and his non-selection for the two Washington positions

was the product of sex discrimination.

On September 23, 2014, DEA representatives took

Mr. Kitlinski’s deposition in the pending EEO litigation.

The deposition took place at the DEA headquarters. After

Mr. Kitlinski finished his deposition and returned to his

car, which was parked in a secure DEA parking lot, he

KITLINSKI v. MSPB 3

discovered a Blackberry device bearing a DEA sticker

under the hood of the car. He suspected that the device

had been planted by agency officials while the car was

parked in the DEA parking lot during his deposition, and

that the device was intended to be used to track his

location and record his conversations.

Mr. Kitlinski reported his discovery of the Blackberry

device to the Federal Bureau of Investigation and to the

Department of Justice Office of the Inspector General.

That office referred the case to the DEA Office of Profes-

sional Responsibility (“OPR”). Mr. Kitlinski’s wife also

reported the incident to her supervisors and to the OPR.

In response to Mrs. Kitlinski’s complaint, an OPR

investigator contacted Mrs. Kitlinski and directed her to

turn over the Blackberry and to appear at the OPR offices

for an interview. Mrs. Kitlinski advised the OPR investi-

gator that she had given the Blackberry to her lawyer and

that all further communications with her should be di-

rected through the lawyer. She later stated that when

she appeared at the OPR offices, she was interrogated

and was threatened with discipline if she did not turn

over the Blackberry.

The following month, two OPR investigators traveled

to Mr. Kitlinski’s workplace at the Coast Guard head-

quarters to meet with him. They directed him to turn

over the Blackberry and to come to the OPR offices the

following day to be interviewed.

Prior to that encounter, but after the investigators’

meeting with Mr. Kitlinski’s wife, Mr. Kitlinski filed the

present action with the Merit Systems Protection Board.

In his complaint, Mr. Kitlinski claimed that the place-

ment of the Blackberry and the interview of his wife

constituted violations of USERRA as independent acts of

discrimination and by creating a hostile work environ-

ment. Following the appearance of the two OPR investi-

gators at Mr. Kitlinski’s workplace, Mr. Kitlinski

4 KITLINSKI v. MSPB

submitted an additional pleading in which he claimed

that the investigators’ actions constituted individual acts

of retaliation as well as creating a hostile work environ-

ment in retaliation for his exercise of his rights under

USERRA.

The administrative judge who was assigned to the

case issued an order directing the parties to file state-

ments regarding the Board’s jurisdiction. Mr. Kitlinski

filed a statement contending that the Board had jurisdic-

tion over his USERRA claims and requesting a hearing.

The agency filed a response in which it urged the admin-

istrative judge to dismiss Mr. Kitlinski’s complaint for

lack of jurisdiction, to which Mr. Kitlinski filed a reply.

In early 2015, the administrative judge issued a rul-

ing dismissing the complaint for lack of jurisdiction. The

administrative judge held that Mr. Kitlinski had failed to

show that the Board had jurisdiction over his complaint

because he had failed to make a nonfrivolous allegation

that any of his claims gave rise to a USERRA violation.

The administrative judge first addressed Mr. Kitlin-

ski’s claim that the alleged placement of the Blackberry in

his car constituted the denial of a “benefit of employment”

on account of his military service, in violation of section

4311(a), the anti-discrimination provision of USERRA, 38

U.S.C. § 4311(a). The administrative judge noted that the

term “benefit of employment” in section 4311(a) is defined

in relevant part as the “terms, conditions, or privileges of

employment.” 38 U.S.C. § 4303(2). Taking Mr. Kitlinski’s

claim “at face value,” the administrative judge explained

that “his contentions boil down to a claim that some

unknown DEA employee placed a Blackberry device in

the engine compartment of his personal vehicle on the

morning of September 23, 2014, where it remained until

around 1:00 p.m. when he removed and effectively disa-

bled it.” Under those circumstances, the administrative

judge concluded, Mr. Kitlinski “failed to nonfrivolously

KITLINSKI v. MSPB 5

allege that the purported placement of a Blackberry

device in the engine compartment of his personal vehicle

for a period of hours constituted a denial of any benefit of

employment as it did not affect any term, condition or

privilege of employment.”

The administrative judge then turned to Mr. Kitlin-

ski’s claim that the DEA’s alleged placement of the Black-

berry device in his car constituted an act of retaliation for

his prior pursuit of a USERRA claim, in violation of the

anti-retaliation provision of USERRA, 38 U.S.C.

§ 4311(b). That provision states that an employer “may

not discriminate in employment against or take any

adverse employment action against any person” because

that person has taken action to enforce a right afforded by

the USERRA statute.

The administrative judge found that Mr. Kitlinski had

failed to nonfrivolously allege that the Blackberry inci-

dent constituted either an adverse employment action or

discrimination in employment. The administrative judge

pointed out that there was no evidence that Mr. Kitlin-

ski’s employment status with the DEA, and in particular

his extended leave to allow him to serve on active duty,

was in any way affected by the incident, or that the DEA

took any adverse employment action against him.

The administrative judge next turned to Mr. Kitlin-

ski’s claim that the DEA’s investigation of the Blackberry

incident constituted an act of retaliation for his USERRA

activities. The administrative judge noted that an inves-

tigation “is not a personnel action per se,” and that even if

an agency investigation without an accompanying per-

sonnel action could constitute a potential act of retaliation

under USERRA, “the undisputed facts here would un-

dermine such a claim,” as it was Mr. Kitlinski “and his

wife who sought to have the matter investigated.”

As for the OPR investigators’ meeting with Mr.

Kitlinski at the Coast Guard headquarters, the adminis-

6 KITLINSKI v. MSPB

trative judge found that the investigators were authorized

to require DEA employees to respond to material and

relevant questions and to produce or grant access to

government property, and that DEA employees are re-

quired to respond to questions in such investigative

proceedings. Moreover, the administrative judge noted,

Mr. Kitlinski declined to appear at the interview or turn

over the Blackberry, so the interruption of his work with

the Coast Guard was limited to the brief meeting with the

OPR investigators at the Coast Guard headquarters.

Consequently, the administrative judge found that the

actions alleged by Mr. Kitlinski in connection with the

DEA investigation of the Blackberry incident were not

materially adverse. For that reason, the administrative

judge found that Mr. Kitlinski had “failed to nonfrivolous-

ly allege that the agency conducted its investigation in

such a manner so as to support a claim that it was done in

retaliation for the appellant having previously pursued

his rights pursuant to USERRA.”

The administrative judge next addressed Mr. Kitlin-

ski’s claim that the agency’s actions created an actionable

“hostile work environment” based on reprisal under

USERRA. As to that issue, the administrative judge

acknowledged that USERRA protects the right to be free

from a hostile work environment based on military service

and assumed that the prohibition against retaliation in

section 4311(b) would include hostile work environment

claims. Nonetheless, the administrative judge found that

the agency conduct at issue was confined to two inci-

dents—the Blackberry incident and the ensuing investi-

gation—and that the consequences of the two incidents

were not severe. The Blackberry was present in Mr.

Kitlinski’s vehicle only for a short period of time—and

only when Mr. Kitlinski was alone in the car—before he

discovered it. And as for the investigation, the adminis-

trative judge noted that it had been precipitated by the

Kitlinskis’ complaints and had not involved any humiliat-

KITLINSKI v. MSPB 7

ing or physically threatening conduct. The administrative

judge further found that the agency’s alleged harassment

did not interfere with Mr. Kitlinski’s work for the DEA,

nor did the brief meeting with the OPR investigators at

the Coast Guard headquarters interfere unreasonably

with Mr. Kitlinski’s work while on active duty with the

Coast Guard or otherwise rise to the level of actionable

harassment.

Based on that analysis, the administrative judge

found that Mr. Kitlinski had failed to make a nonfrivolous

allegation (1) that he was subjected to the denial of a

benefit of employment under section 4311(a) based on his

military service; (2) that the DEA took an adverse em-

ployment action or otherwise discriminated in employ-

ment against him under section 4311(b) for engaging in

protected USERRA activity; and (3) that he was subjected

to a hostile work environment or actionable harassment

under either sections 4311(a) or 4311(b).

Mr. Kitlinski petitioned the full Board for review of

the administrative judge’s decision. On review, the Board

upheld the dismissal of Mr. Kitlinski’s claims, although it

modified the administrative judge’s initial decision in one

respect.

The Board first agreed with the administrative judge

that, even accepting Mr. Kitlinski’s version of the facts,

the Blackberry incident did not deny him a benefit of

employment and therefore did not constitute discrimina-

tion under USERRA.

Second, the Board held that Mr. Kitlinski had failed

to nonfrivolously allege that the DEA’s conduct had

created a hostile work environment in violation of

USERRA’s anti-discrimination provision. On that issue,

the Board’s analysis differed from that of the administra-

tive judge. The Board ruled that the flaw in Mr. Kitlin-

ski’s case was his failure to show that the measures

alleged to have given rise to the hostile work environment

8 KITLINSKI v. MSPB

were taken based on Mr. Kitlinski’s military status, which

is a necessary element of a discrimination claim under

USERRA section 4311(a).

Third, the Board held that Mr. Kitlinski had failed to

make a nonfrivolous allegation that the agency had

retaliated against him for previous USERRA activity. On

that issue, the Board agreed with the administrative

judge that USERRA’s anti-retaliation provision, section

4311(b), requires proof that the employer’s allegedly

retaliatory measures constituted “discrimination in

employment” or “an adverse employment action.” Be-

cause the Board concluded that the Blackberry incident

and the subsequent OPR investigation did not constitute

either an adverse employment action or discrimination in

employment, it held that it lacked jurisdiction over Mr.

Kitlinski’s retaliation claim.

Although the Board addressed Mr. Kitlinski’s claim of

discrimination based on a hostile work environment as

well as his claim of retaliation based on the Blackberry

incident and the OPR investigation, it did not make a

separate finding as to Mr. Kitlinski’s claim that the DEA

had created a hostile work environment in retaliation for

his USERRA activities.

II

In this court, the Board’s counsel acknowledges that

the full Board did not address Mr. Kitlinski’s claim of

retaliation in the form of a hostile work environment.

The Board’s counsel asks us to remand that portion of the

case to the Board in order for the Board to address and

decide that issue in the first instance. The Board’s coun-

sel defends the Board’s decisions with respect to each of

Mr. Kitlinski’s other three claims. We address those

three claims below.

1. The anti-discrimination provision of USERRA, 38

U.S.C. § 4311(a), states that a person who is a member of

KITLINSKI v. MSPB 9

a uniformed service shall not be denied “initial employ-

ment, reemployment, retention in employment, promo-

tion, or any benefit of employment” on the basis of his

membership in the military or performance of military

service. A person claiming discrimination by a federal

executive agency in violation of section 4311(a) of

USERRA may choose to submit a complaint directly to

the Merit Systems Protection Board. 38 U.S.C.

§ 4324(b). 1 In order to establish that the Merit Systems

Protection Board has jurisdiction over a USERRA dis-

crimination claim, the appellant must make a non-

frivolous allegation that his military service was “a sub-

stantial or motivating factor” in the agency’s action in

question. Erickson v. U.S. Postal Serv., 571 F.3d 1364,

1368 (Fed. Cir. 2009); Sheehan v. Dep’t of the Navy, 240

F.3d 1009, 1013 (Fed. Cir. 2001); Lourens v. Merit Sys.

Prot. Bd., 193 F.3d 1369, 1370 (Fed. Cir. 1999); see also 38

U.S.C. § 4311(c); Wilborn v. Merit Sys. Prot. Bd., No.

2016-2533, 2017 WL 930807, at *2 (Fed. Cir. Mar. 9,

2017); Baney v. Merit Sys. Prot. Bd., 415 F. App’x 244, 246

(Fed. Cir. 2011).

Mr. Kitlinski’s first claim is that the DEA discrimi-

nated against him in violation of USERRA section 4311(a)

because of his military service. The problem with that

claim, as the Board held, is that the agency’s actions do

not fit within the categories of actions that section 4311(a)

1 As an alternative to a direct complaint to the

Board, an employee may elect to apply to the Secretary of

Labor for assistance with his discrimination claim. See 38

U.S.C. § 4322(a). The Secretary may attempt to resolve

the matter or refer it to the Office of Special Counsel,

which may assist the employee with his complaint before

the Board. See 38 U.S.C. §§ 4322(d), 4324(a). Mr. Kitlin-

ski did not elect that option, but filed his complaint direct-

ly with the Board.

10 KITLINSKI v. MSPB

prohibits an agency from taking, i.e., the denial of “initial

employment, reemployment, retention in employment,

promotion, or any benefit of employment.”

The only one of those prohibitions that Mr. Kitlinski

argues is applicable in this case is the denial of a “benefit

of employment.” We agree with the Board, however, that

the agency’s alleged placement of the Blackberry in Mr.

Kitlinski’s car did not constitute the denial of a “benefit of

employment” within the meaning of section 4311(a) of

USERRA. This court has held that “a nexus between an

allegedly-denied benefit and one’s employment is an

essential component of this type of USERRA claim.”

Thomsen v. Dep’t of the Treasury, 169 F.3d 1378, 1381

(Fed. Cir. 1999). It would stretch the term “benefit of

employment” far beyond its reasonable limits to construe

it to mean freedom from any improper or unlawful acts

committed by any representative of an employer outside

the workplace, such as the alleged placement of a Black-

berry in Mr. Kitlinski’s vehicle while he was present at

the DEA headquarters for a deposition. 2

2 Mr. Kitlinski cites several cases in which exces-

sive monitoring of an employee was asserted as a basis for

a claim of retaliation or a hostile work environment under

other statutes. Those cases involved extended periods of

monitoring in the workplace, quite different from the

single instance of monitoring outside of the workplace

that is alleged in this case.

In his petition for review to the full Board, Mr. Kitlin-

ski was critical of the administrative judge’s characteriza-

tion of the alleged placement of the Blackberry as lasting

only a few hours on the morning of Mr. Kitlinski’s deposi-

tion. Appellant’s Petition for Review at 10. In his narra-

tive attachment to his complaint, however, Mr. Kitlinski

specifically asserted that the “placement of the listening

and tracking device occurred on the very day I was de-

KITLINSKI v. MSPB 11

Similarly, the investigative measures taken by the

OPR investigators cannot reasonably be characterized as

the denial of a benefit of employment. While Mr. Kitlin-

ski objects to the steps taken by the OPR investigators,

including meeting Mr. Kitlinski at the Coast Guard

headquarters and insisting that he produce the Blackber-

ry and appear for an interview at the DEA headquarters

the next day, those actions did not deny Mr. Kitlinski a

benefit of employment under any reasonable definition of

that term. That conclusion is confirmed by section

4303(2) of USERRA, which defines the term “benefit of

employment” to mean the “terms, conditions, or privileges

of employment” and benefits flowing therefrom.

Mr. Kitlinski argues that the purpose of the Blackber-

ry incident was to enable the DEA to obtain information

to use in the legal proceedings he had brought against the

agency, including his two prior USERRA claims. That

contention, even if true, would not make freedom from

monitoring outside the workplace a “benefit of employ-

ment” within the meaning of USERRA. The Board there-

fore correctly held that Mr. Kitlinski failed to make a

nonfrivolous allegation of acts of USERRA discrimination

under section 4311(a) based on the Blackberry incident

and the OPR investigation.

2. Mr. Kitlinski’s second claim is that the combina-

tion of the Blackberry incident and the DEA’s subsequent

investigation of that incident created a hostile work

environment. He argues on appeal that the creation of a

hostile work environment constituted discrimination

based on his military service, in violation of USERRA

section 4311(a), because it was motivated by anti-military

posed by the Agency,” e-Appeal Attachment Transmittal

at 6-7; see also id. at 3. It was therefore entirely reasona-

ble for the administrative judge to accept Mr. Kitlinski’s

factual proffer on that issue as true.

12 KITLINSKI v. MSPB

animus. That claim, too, was properly rejected. As the

Board observed, Mr. Kitlinski did not allege before the

Board that the DEA created a hostile work environment

because of his military service. Nor has Mr. Kitlinski

pointed to any evidence of such a motivation.

In his brief, Mr. Kitlinski alludes to an attachment to

his petition for review by the full Board, which he charac-

terizes as reciting the “long standing number of disputes

with the DEA,” and detailing “repeated act[s] of discrimi-

natory animus, denials of promotions and transfers,

inaccurate responses to pointed Congressional inquiries,

anti-military comments by the DEA Career Board, con-

flicting Agency explanations for its conduct and years long

contests between Petitioner and the Agency over person-

nel actions taken or not taken.” But a document describ-

ing Mr. Kitlinski’s clashes with the agency is no

substitute for an allegation of anti-military animus as the

basis for creating a hostile work environment. The dis-

crimination claim in the form of a hostile work environ-

ment based on military status therefore fails on that

ground.

3. Mr. Kitlinski’s third claim is that the Blackberry

incident and the subsequent OPR investigation constitut-

ed individual acts of retaliation against him because of his

prior invocation of his rights under USERRA, and that

those acts therefore violated section 4311(b), USERRA’s

anti-retaliation provision. The Board held that Mr.

Kitlinski failed to make a nonfrivolous allegation that

either the Blackberry incident or the subsequent investi-

gation qualified as an individual act of retaliation for his

previous USERRA activities, and we agree.

USERRA’s prohibition against retaliation in section

4311(b) provides that an employer “may not discriminate

in employment against or take any adverse employment

action against any person” because he has taken an action

to enforce a protection provided by USERRA or has exer-

KITLINSKI v. MSPB 13

cised a right provided for by USERRA. 38 U.S.C.

§ 4311(b). Thus, the anti-reprisal statute is limited to

barring acts of discrimination in employment and adverse

employment actions. See Lisdahl v. Mayo Found., 633

F.3d 712, 721 (8th Cir. 2011); Crews v. City of Mt. Vernon,

567 F.3d 860 (7th Cir. 2009). 3

As the Board held, the Blackberry incident and the

investigation that followed it do not constitute acts of

“discrimination in employment” or “adverse employment

actions.” With respect to “discrimination in employment,”

the placement of a Blackberry in Mr. Kitlinski’s car, as

the Board found, “does not deny him a benefit that inures

to him by virtue of his employment with the agency.” Nor

does that act constitute an “adverse employment action,”

which is generally defined to include actions adversely

affecting the employee’s employment status, such as

firing, demotion, suspension, a loss of benefits, or a reduc-

tion in pay.

Similarly, as the Board ruled, an investigation does

not ordinarily constitute an act of “discrimination in

employment” or an “adverse employment action.” That is

particularly clear in this case, as the investigation did not

relate directly to Mr. Kitlinski’s employment with the

DEA. As the administrative judge pointed out, Mr.

Kitlinski had been on long-term leave from the DEA while

he served with the Coast Guard, and the investigation

related to an incident that occurred at the time of his

deposition in his EEO case against the agency. The

3 As the Crews court explained, the language of the

anti-retaliation provision of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-3(a) does not contain the

limiting language found in section 4311(b) of USERRA;

for that reason the anti-retaliation provision of Title VII

has not been limited to employment-related actions.

Crews, 567 F.3d at 869.

14 KITLINSKI v. MSPB

investigation thus had no apparent effect on his employ-

ment with the DEA and did not constitute discrimination

in employment or an adverse employment action. We

therefore sustain the Board’s ruling that Mr. Kitlinski

failed to make a nonfrivolous allegation that the discrete

actions about which he complains—the Blackberry inci-

dent and the investigative activities that followed—

violated USERRA’s anti-retaliation provision.

4. As noted, the full Board did not address one of Mr.

Kitlinski’s claims: that the creation of a hostile work

environment was the product of forbidden retaliation

under section 4311(b), the anti-retaliation provision of

USERRA. The Board’s counsel has requested that we

remand the case to the Board to address that issue in the

first instance. We grant the request of the Board’s coun-

sel. Therefore, while we uphold the Board’s decision with

respect to the three claims that the Board addressed, we

vacate the Board’s order and remand the case to the

Board in order to enable the Board to address the issue

that was left unaddressed in the initial petition for review

proceeding.

Each party shall bear its own costs for this appeal.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED