Opinion

Darek Kitlinski v. Department of Justice

2023 MSPB 13

Court: Merit Systems Protection Board
Filed: Mar 23, 2023
Status: Published
Cited by: 4 cases
Authority: More cited than 62.1%

identifying the requirement that, to establish jurisdiction over a USERRA reprisal claim, an appellant must nonfrivolously allege that his protected activity was a motivating factor in the agency’s action

How later courts described this case

identifying the requirement that, to establish jurisdiction over a USERRA reprisal claim, an appellant must nonfrivolously allege that his protected activity was a motivating factor in the agency’s action
permitting hostile work environment claims under USERRA

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2023 MSPB 13

Docket No. SF-4324-15-0088-M-1

Darek J. Kitlinski,

Appellant,

Department of Justice,

Agency.

March 23, 2023

Darek J. Kitlinski, Arlington, Virginia, pro se.

Clairanne Mariah Porter Wise, Springfield, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

OPINION AND ORDER

¶1 This Uniformed Services Employment and Reemployment Rights Act of

1994 (USERRA) appeal is before the Board on remand from the U.S. Court of

Appeals for the Federal Circuit (Federal Circuit). The sole issue before the Board

is whether the administrative judge correctly found that the appellant failed to

establish jurisdiction over his appeal based on his claim that the agency created a

hostile work environment in retaliation for his protected activity. For the reasons

set forth below, we AFFIRM the administrative judge’s findings and DISMISS

the appeal for lack of jurisdiction.

BACKGROUND

¶2 The facts of this case are set forth more fully in the administrative judge’s

initial decision and the Federal Circuit’s opinion. Kitlinski v. Department of

Justice, MSPB Docket No. SF-4324-15-0088-I-1, Initial Decision (ID) at 2-5

(Feb. 13, 2015); Kitlinski v. Merit Systems Protection Board, 857 F.3d 1374,

1376-79 (Fed. Cir. 2017). Briefly, the appellant was a Supervisory Special Agent

with the agency’s Drug Enforcement Administration (DEA). ID at 2. He was

also a reservist in the United States Coast Guard (Coast Guard) and had been

recalled to active duty for an extended period beginning in 2011. Kitlinski,

857 F.3d at 1376. Prior to filing this appeal, the appellant had filed two USERRA

appeals and an equal employment opportunity (EEO) complaint against the

agency. Id.

¶3 According to the appellant, on September 23, 2014, he appeared at DEA

headquarters for a deposition in his EEO case. Id. After the deposition was

finished, he claimed that he returned to his car and discovered under the hood “a

Blackberry device bearing a DEA sticker.” Id. “He suspected that the device had

been planted by agency officials . . . and that the device was intended to be used

to track his location and record his conversations.” Id. The appellant’s wife, who

was also an agency employee, turned the Blackberry over to their attorney and

notified the agency’s Office of Professional Responsibility (OPR) of the

matter. Id.

¶4 OPR summoned the appellant’s wife to an interview and directed her to

return the Blackberry to the agency. Id. Subsequently, two OPR investigators

traveled to the appellant’s Coast Guard duty station and directed the appellant to

turn over the Blackberry and to appear at OPR’s offices for an interview. Id. The

appellant did not appear for the interview, and there is no indication in the record

that either the appellant or his wife ever returned the Blackberry. Id. at 1378.

The appellant does not claim that the agency took any action against him as a

result.

¶5 The appellant filed the instant USERRA appeal and requested a hearing.

Kitlinski v. Department of Justice, MSPB Docket No. SF-4324-15-0088-I-1,

Initial Appeal File (IAF), Tab 1. He raised the following four claims: (1) the

agency discriminated against him in violation of 38 U.S.C. § 4311(a) by denying

him a benefit of employment; (2) the agency discriminated against him in

violation of 38 U.S.C. § 4311(a) by creating a hostile work environment; (3) the

agency retaliated against him for his prior USERRA activity in violation of

38 U.S.C. § 4311(b) by discriminating against him and taking adverse

employment actions against him; and (4) the agency retaliated against him for his

prior USERRA activity in violation of 38 U.S.C. § 4311(b) by creating a hostile

work environment. Kitlinski, 857 F.3d at 1379-82. The administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction. ID at 15.

He found that the appellant failed to make a nonfrivolous allegation that he was

subjected to a denial of a benefit of employment or any other entitlement listed in

38 U.S.C. § 4311(a) on the basis of his uniformed service or obligation to

perform such service. ID at 6-7, 15. He also found that the appellant failed to

make a nonfrivolous allegation that the agency took an adverse employment

action or otherwise discriminated in employment against him in retaliation for

protected USERRA activity under 38 U.S.C. § 4311(b). ID at 8-12, 15. Finally,

he found that the appellant failed to allege facts which, if proven, would rise to

the level of a hostile work environment under either section 4311(a) or

section 4311(b). ID at 12-15. The appellant filed a petition for review, and the

Board issued an Opinion and Order affirming the initial decision. Kitlinski v.

Department of Justice, 123 M.S.P.R. 41 (2015), aff’d in part, vacated in part, and

remanded, 857 F.3d 1374 (Fed. Cir. 2017).

¶6 The appellant then filed a petition for judicial review with the Federal

Circuit. Kitlinski, 857 F.3d at 1376. On review, the Board, as respondent, noted

that its Opinion and Order did not address whether the appellant had made a

nonfrivolous allegation that the agency subjected him to a hostile work

environment in retaliation for his prior USERRA activity, in violation of

38 U.S.C. § 4311(b). Id. at 1379. The Board therefore requested that the appeal

be remanded for it to address this issue in the first instance. Id. The court issued

an opinion affirming the Board’s final decision in part and vacating and

remanding in part. Id. at 1382. The court affirmed the Board’s findings that the

appellant failed to make a nonfrivolous allegation of jurisdiction with respect to

the first three claims described above. Supra ¶ 5; Kitlinski, 857 F.3d at 1380-82.

The court vacated the Board’s order, however, and remanded for further

proceedings on the fourth claim. Kitlinski, 857 F.3d at 1382.

ANALYSIS

¶7 At issue here is the appellant’s claim that, in retaliation for exercising his

rights under USERRA, the agency created a hostile work environment by

allegedly placing a Blackberry device under the hood of his car and summoning

him to an investigative interview. IAF, Tab 12 at 12-13. The question is whether

this amounts to a nonfrivolous allegation of Board jurisdiction under 38 U.S.C.

§ 4324. For the following reasons, we find that it does not.

¶8 USERRA’s prohibition on retaliation in 38 U.S.C. § 4311(b) provides that:

[a]n employer may not discriminate in employment against or take

any adverse employment action against any person because such

person (1) has taken an action to enforce a protection afforded any

person under this chapter, (2) has testified or otherwise made a

statement in or in connection with any proceeding under this chapter,

(3) has assisted or otherwise participated in an investigation under

this chapter, or (4) has exercised a right provided for in this chapter.

To establish jurisdiction over a USERRA retaliation claim under this subsection,

an appellant must make nonfrivolous allegations that (1) he engaged in activity

protected under 38 U.S.C. § 4311(b), (2) the agency discriminated in employment

or took an adverse employment action against him, and (3) his protected activity

was a motivating factor in the agency’s action. 1 See 38 U.S.C. § 4311(b), (c)(2);

Hayden v. Department of the Air Force, 812 F.3d 1351, 1363 (Fed. Cir. 2016);

5 C.F.R. § 1201.57(a)(3), (b). In this case, it is undisputed that the appellant

engaged in activity protected under 38 U.S.C. § 4311(b). Specifically, he

exercised a right provided for under 38 U.S.C. § 4324(b) when he filed his two

previous USERRA appeals, Kitlinski v. Department of Justice, MSPB Docket

No. SF-4324-14-0184-I-1, and Kitlinski v. Department of Justice, MSPB

Docket No. SF-4324-14-0687-I-1, on December 13, 2013, and July 8, 2014,

respectively. The remaining question before us is whether the appellant made a

nonfrivolous allegation that the agency “discriminate[d] in employment” or took

an “adverse employment action” against him by creating a hostile work

environment. 38 U.S.C. § 4311(b). As explained below, we answer that question

in the negative.

¶9 As an initial matter, we find that, considering the legislative history and

remedial purpose of USERRA, it is appropriate to interpret USERRA’s

anti-retaliation provision as encompassing hostile work environment claims. The

Board previously found that a hostile work environment claim may lie under

USERRA’s anti-discrimination provision, set forth in 38 U.S.C. § 4311(a), to the

extent that the creation of a hostile work environment amounts to the denial of a

“benefit of employment.” 2 Petersen v. Department of the Interior, 71 M.S.P.R.

If an appellant previously sought corrective action from the Department of Labor in

connection with his claim under 38 U.S.C. § 4322, he also must prove by preponderant

evidence that he has exhausted his administrative remedies. See 38 U.S.C. § 4322(e);

Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660, ¶ 7 (2005); 5 C.F.R.

§§ 1201.57(c)(1), 1208.11. Because the appellant filed the instant appeal directly with

the Board, this jurisdictional element is inapplicable to this case.

Section 4311(a) states the following:

[a] person who is a member of, applies to be a member of, performs, has

performed, applies to perform, or has an obligation to perform service in a

uniformed service shall not be denied initial employment, reemployment,

227, 235-39 (1996). In Petersen, we determined that one of the basic purposes of

USERRA is to prohibit discrimination because of an individual’s service in the

uniformed services, and that an expansive interpretation of the statute was

intended by Congress. Id. at 235-36. Further, we noted that the courts

consistently have construed other anti-discrimination statutes as proscribing

harassment in the workplace, and concluded that harassment on account of

uniformed service, which is sufficiently pervasive to alter the conditions of

employment and create an abusive working environment, is a violation of

38 U.S.C. § 4311(a). Id. at 237-39.

¶10 We find that USERRA’s anti-retaliation provision similarly proscribes a

hostile work environment. Section 4311(b) prohibits “discriminat[ion] in

employment against” or “tak[ing] any adverse employment action against”

individuals who engage in activity protected by that provision. In other words, an

employer may not retaliate against an individual for exercising his rights under

USERRA. Hayden, 812 F.3d at 1362-63. Statutes should be interpreted in a

manner that is consistent with the intent of Congress. Hellebrand v. Secretary of

the Department of Health and Human Services, 999 F.2d 1565, 1570-71 (Fed. Cir.

1993). The legislative history of USERRA explicitly states that it was intended

“to prohibit discrimination or acts of reprisal” against individuals who file a

complaint, assist in an investigation, or testify in a proceeding under that

statutory scheme, and that USERRA is to be “liberally construed.” H.R. Rep.

No. 103-65(I), at 17, 19, 24 (1993), as reprinted in 1994 U.S.C.C.A.N. 2449,

2450, 2452, 2457. As the Federal Circuit has explained, any “interpretive doubt

retention in employment, promotion, or any benefit of employment by an

employer on the basis of that membership, application for membership,

performance of service, application for service, or obligation.

38 U.S.C. § 4311(a). USERRA defines the term “benefit of employment” as “the terms,

conditions, or privileges of employment, including any advantage, profit, privilege,

gain, status, account, or interest . . . that accrues by reason of an employment contract

or agreement or an employer policy, plan, or practice.” See 38 U.S.C. § 4303(2).

is to be resolved in the veteran’s favor.” Kirkendall v. Department of the Army,

479 F.3d 830, 846 (Fed. Cir. 2007) (en banc) (citing Brown v. Gardner, 513 U.S.

115, 117-18 (1994)).

¶11 Our conclusion is confirmed by certain amendments to USERRA in 2011.

Specifically, in Carder v. United Airlines, Inc., 636 F.3d 172 (5th Cir. 2011), the

U.S. Court of Appeals for the Fifth Circuit held that USERRA did not create a

cause of action based on a hostile work environment. Specifically, the court

observed that “[i]n originally permitting a plaintiff to assert a hostile work

environment claim in a Title VII case, the Supreme Court relied heavily on

Title VII’s language prohibiting discrimination with respect to the ‘terms,

conditions, or privileges of employment.’” Carder, 636 F.3d at 177 (citing

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 63-66 (1986)). However, this

language was absent from USERRA, and the court found that its omission was

intentional. The court therefore declined to read the USERRA term “benefits of

employment” to encompass “terms, conditions, or privileges of employment,” and

thus held that the plaintiff could not raise a hostile work environment claim under

USERRA. Id. at 178-81. Eight months after the Carder decision was issued,

Congress clarified the term “benefits of employment” by amending 38 U.S.C.

§ 4303(2) to state specifically that it means “the terms, conditions, or privileges

of employment.” Vow to Hire Heroes Act of 2011, Pub. L. No. 112-56, § 251,

125 Stat. 711, 729. Based on Congress’s legislative response to the Carder

decision, we find unambiguous congressional intent that hostile work

environment claims be cognizable under USERRA.

¶12 Moreover, we previously have recognized a prohibition against a retaliatory

hostile work environment under the Whistleblower Protection Enhancement Act

of 2012, a statute that similarly prohibits retaliation for protected activity. See

Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015) (relying upon

legislative history to broadly interpret a prohibition against retaliating for

whistleblowing by making “any other significant change in duties,

responsibilities, or working conditions” to include harassment “that could have a

chilling effect on whistleblowing”), overruled in part by Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 23-25. Additionally, Federal courts

have concluded that hostile work environment claims are available under other

similar anti-retaliation statutory provisions. E.g., Gowski v. Peake, 682 F.3d

1299, 1311-12 (11th Cir. 2012) (recognizing the existence of retaliatory hostile

work environment claims under Title VII for the first time in the U.S. Court of

Appeals for the Eleventh Circuit and acknowledging that every other Federal

circuit court already had recognized such claims); Floyd v. Lee, 85 F. Supp. 3d

482 (D.D.C. 2015) (acknowledging the availability of a retaliatory hostile work

environment claim under the Americans with Disabilities Act). Because many of

the considerations underpinning the recognition of a hostile work environment

claim under 5 U.S.C. § 4311(a), see Petersen, 71 M.S.P.R. at 235-39, similarly

exist for section 4311(b), we conclude that it is appropriate to permit hostile work

environment claims under both USERRA’s anti-discrimination and

anti-retaliation statutes. Furthermore, the Federal Circuit in this matter at least

implicitly concluded that a hostile work environment claim was cognizable under

38 U.S.C. § 4311(b), as reflected in its remand of that claim to the Board for

adjudication here. Kitlinski, 857 F.3d at 1382.

¶13 Having found that a hostile work environment claim is available under

38 U.S.C. § 4311(b), we consider the appropriate standard for addressing such a

claim. In determining what standard to apply to hostile work environment claims

arising under USERRA’s anti-discrimination provision, the Board recognized that

courts that have considered this issue have looked to the elements of a hostile

work environment claim under Title VII. Kitlinski, 123 M.S.P.R. 41, ¶ 18; see

Montoya v. Orange County Sheriff’s Department, 987 F. Supp. 2d 981, 1012-15

(C.D. Cal. 2013). Applying those standards, the courts have held that, to

establish such a claim, an employee must establish a “pattern of ongoing and

persistent harassment severe enough to alter the conditions of employment,”

“prov[ing] that his workplace was both objectively and subjectively offensive”

and that “any harassment took place on account of his protected status as a

military member.” Kitlinski, 123 M.S.P.R. 41, ¶ 18 (quoting Montoya, 987 F.

Supp. 2d at 1016-17, and citing Hanson v. County of Kitsap, 21 F. Supp. 3d 1124,

1146-47 (W.D. Wash. 2014)).

¶14 We similarly find here that Title VII provides a useful analog for

establishing the elements of a USERRA hostile work environment claim under

38 U.S.C. § 4311(b). See Kitlinski, 123 M.S.P.R. 41, ¶ 19. Accordingly, we hold

that, to establish the Board’s jurisdiction over a hostile work environment claim

arising under USERRA’s anti-retaliation provision, an appellant must

nonfrivolously allege that he was subjected to a pattern of ongoing and persistent

harassing behavior that was sufficiently severe or pervasive to amount to an

“adverse employment action” or “discriminat[ion] in employment.” See

38 U.S.C. § 4311(b); Montoya, 987 F. Supp. 2d at 1017; Kitlinski, 123 M.S.P.R.

41, ¶ 19. An appellant also must nonfrivolously allege that his protected activity

was a motivating factor in the alleged acts of hostility to bring the challenged

conduct within the scope of USERRA’s anti-retaliation provision. See 38 U.S.C.

§ 4311(c)(2) (stating that an employer violates section 4311(b) when an

individual’s protected activity is a “motivating factor in the employer’s action,

unless the employer can prove that the action would have been taken in the

absence of such person’s enforcement action, testimony, statement, assistance,

participation, or exercise of a right”); see also Hayden, 812 F.3d at 1363 (setting

forth the standard for establishing jurisdiction over a USERRA retaliation claim).

In considering whether an appellant has nonfrivolously alleged that he was

subjected to a hostile work environment based on his protected activity under

USERRA, we apply the Board’s liberal approach to determining jurisdiction in a

USERRA appeal, under which the relative weakness of an appellant’s allegations

concerning the seriousness of the alleged acts should not serve as a basis for

jurisdictional dismissal. Swidecki v. Department of Commerce, 113 M.S.P.R.

168, ¶ 6 (2010).

¶15 As the Federal Circuit found in this case, 38 U.S.C. § 4311(b) “is limited to

barring acts of discrimination in employment and adverse employment actions.”

Kitlinski, 857 F.3d at 1381. The appellant’s retaliatory hostile work environment

claim is grounded in two agency actions—the alleged planting of the Blackberry

device in his vehicle and the OPR investigators summoning him to an interview.

IAF, Tab 12 at 12-13. However, the Federal Circuit in its remand decision

already concluded that these two actions did not constitute “adverse employment

actions” or “discrimination in employment,” as they did not deny the appellant “a

benefit that inures to him by virtue of his employment with the agency.”

Kitlinski, 857 F.3d at 1382. Concerning the interview, the court’s finding was at

least in part due to the fact that, at the time of the investigation in question, the

appellant had been on long-term leave from his employing agency and was

serving with the Coast Guard. Id. Aggregating these two events in an effort to

establish a hostile work environment claim under 38 U.S.C. § 4311(b) is

unavailing—the two actions still had no bearing on the appellant’s employment.

Thus, we find that the appellant has not made a nonfrivolous allegation that the

agency discriminated in employment or took an adverse employment action

against him, as required to establish jurisdiction over his retaliatory hostile work

environment claim.

ORDER

¶16 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 4 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the