Kitlinski v. MSPB , 857 F.3d 1374 ( 2017 )

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