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Kitlinski v. Merit Systems Protection Board

United States Court of Appeals, Federal Circuit

May 31, 2017


         Petition for review of the Merit Systems Protection Board in No. SF-4324-15-0088-I-1.

          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 claims he raised under the Uniformed Services Employment 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.


         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 Justice. He was assigned to the DEA's field office in San Diego. At the same time, Mr. Kitlinski served as a reservist 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. Kitlinski had two USERRA complaints and an equal employment 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., Division. 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 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 Professional 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 investigator that she had given the Blackberry to her lawyer and that all further communications with her should be directed 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 headquarters 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 placement of the Blackberry and the interview of his wife constituted violations of USERRA as independent acts of discrimination and by creating a hostile work environment. Following the appearance of the two OPR investigators at Mr. Kitlinski's workplace, Mr. Kitlinski submitted an additional pleading in which he claimed that the investigators' actions constituted individual acts of retaliation as well as creating a hostile work environment 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 statements regarding the Board's jurisdiction. Mr. Kitlinski filed a statement contending that the Board had jurisdiction over his USERRA claims and requesting a hearing. The agency filed a response in which it urged the administrative judge to ...

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