DAREK J. KITLINSKI, Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent
for review of the Merit Systems Protection Board in No.
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.
Dyk, Bryson, and Chen, Circuit Judges.
Bryson, Circuit Judge.
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.
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.
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.
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.
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.
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.
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
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.
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 ...