UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAREK J. KITLINSKI, DOCKET NUMBER
Appellant, SF-4324-14-0184-I-2
v.
DEPARTMENT OF JUSTICE, DATE: November 3, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin E. Byrnes, Esquire, Falls Church, Virginia, for the appellant.
Tamara H. Kassabian, Esquire, Springfield, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA). Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 During the time relevant to this appeal, the appellant held the position of a
Supervisory Criminal Investigator with the agency’s Drug Enforcement
Administration (DEA or agency) in San Diego, California. Kitlinski v.
Department of Justice, MSPB Docket No. SF-4324-14-0184-I-1, Initial Appeal
File (IAF), Tab 9 at 28 of 64. The appellant’s wife is also an employee of the
agency and, effective February 2011, she was selected for a position with the
agency in Arlington, Virginia. Id. at 9 of 64. When his wife was selected for
employment in Virginia, the appellant was on full-time active duty with the U.S.
Coast Guard in Washington, D.C. IAF, Tab 1.
¶3 After his wife was approved for a transfer to Virginia, the appellant
submitted a request to the agency’s Career Board for an internal transfer pursuant
to the agency’s Married Core-Series Transfer (MCST) policy. IAF, Tab 9 at 10
of 64. The MCST provides that, “[t]o the extent practical, and consistent with the
needs of the Agency, DEA will assign married couples in core occupations . . . to
the same metropolitan area. However, the assignment of core series couples must
further career development objectives and meet field staffing needs.” Id. at 61 of
64. Between March 2011, and May 2013, the appellant submitted six transfer
3
requests, each of which was denied. IAF, Tab 53. Additionally, he applied for
two supervisory-level positions with the agency, neither of which he received. Id.
Lastly, the appellant submitted an internal transfer request in November 2013,
“pursuant to USERRA,” which was also denied. Id. Throughout this time, the
appellant remained on full-time active duty with the U.S. Coast Guard. 2 IAF,
Tab 1.
¶4 The appellant filed the instant USERRA appeal contesting each of these
denials and nonselections. Id. The administrative judge found that the appellant
established jurisdiction over his USERRA appeal and, following a hearing, he
denied the appellant’s request for corrective action. Refiled Appeal File (RAF),
Tab 38, Initial Decision (ID). In his initial decision, the administrative judge
found that the appellant failed to establish by preponderant evidence that his
military status was a motivating factor in any of the challenged actions, and in the
alternative he found that, even if the appellant could meet his burden, the agency
presented preponderant evidence that it would have made the same decisions in
the absence of his military service. ID at 7-26.
¶5 The appellant has filed a petition for review only concerning the denial of
his six transfer requests made pursuant the agency’s MCST policy. Petition for
Review (PFR) File, Tab 1 at 4. On review, the appellant argues that the
administrative judge erred in rendering his credibility determinations and in
denying a post-hearing motion to strike portions of the hearing testimony based
on the agency’s purported discovery failures. Id. at 14-17, 21-22. Additionally,
the appellant argues that the administrative judge overlooked direct evidence of
the agency’s military bias and that the agency failed to meet its burden of
showing that it would have taken the same action in the absence of his military
2
The agency subsequently granted the appellant’s request for a transfer to its
Washington, D.C., field office in December 2014. See Refiled Appeal File (RAF),
Tab 26 at 11-12.
4
status. Id. at 19-20, 25-27. The agency has filed a response in opposition to the
petition for review. PFR File, Tab 3.
¶6 USERRA provides in relevant part that a “person who is a member of . . . a
uniformed service shall not be denied . . . any benefit of employment by an
employer on the basis of that membership.” 38 U.S.C. § 4311(a); Brasch v.
Department of Transportation, 101 M.S.P.R. 145, ¶ 8 (2006). An employer
violates section 4311(a) when an individual’s military status 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 membership[.]”
Brasch, 101 M.S.P.R. 145, ¶ 8 (quoting 38 U.S.C. § 4311(c)(1)). An employee
making a USERRA claim of discrimination bears the initial burden of showing by
a preponderance of the evidence that the employee’s military service was a
substantial or motivating factor in the challenged action. Id. An employee may
meet this standard with either direct or circumstantial evidence; circumstantial
evidence of discrimination could include, among other things, the proximity in
time between the military activity and the challenged action, inconsistencies
between the agency’s reasons and its actions, and disparate treatment of certain
employees as compared to others with similar work records. Id., ¶ 9 (citing
Sheehan v. Department of the Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001)). If the
employee meets this requirement, the employer has the opportunity to come
forward with evidence to show, by preponderant evidence, that it would have
taken the challenged action even in the absence of the employee’s military
service. Id., ¶ 8.
¶7 We have reviewed the initial decision and the arguments raised by the
appellant on petition for review, and we find no reason to differ with the
administrative judge’s denial of corrective action. We concur with the
administrative judge that there is no evidence of military animus on the part of
the agency in denying the appellant’s several transfer requests. Specifically, we
agree with the administrative judge that there is no evidence of military animus
5
concerning the denial of the appellant’s first four transfer requests. 3 The only
evidence of such alleged animus proffered by the appellant concerning these
denials—an employee allegedly abruptly ending a conversation with the appellant
upon learning of his military service—is insufficient to demonstrate by
preponderant evidence that his military service was a motivating factor in the
Career Board’s denials of these transfer requests. See ID at 16-18.
¶8 On review, the appellant challenges the administrative judge’s credibility
determinations rendered in support of his findings concerning these denials. PFR
File, Tab 1 at 14-16. The administrative judge’s credibility determinations,
however, are premised on one of the agency’s witness’s demeanor during the
hearing, see ID at 17, and the appellant’s disagreement with the administrative
judge’s factual conclusions based upon this testimony, alone, does not establish a
basis for overturning the initial decision, see Bruneau v. Department of the
Navy, 73 M.S.P.R. 308, 311-12 (1997); PFR File, Tab 1 at 16-17. Such
credibility determinations, moreover, are virtually unreviewable on petition for
review, and the appellant has presented no reason for us to discredit the
administrative judge’s credibility findings as incomplete or otherwise inconsistent
with the weight of the evidence in the record. See Thomas v. U.S. Postal
Service, 116 M.S.P.R. 453, ¶ 5 (2011).
¶9 Although we agree with the appellant that the Career Board was aware of
his military service when it considered his transfer requests, see, e.g, PFR File,
Tab 1 at 15, 17, the appellant must put forth more than his record of military
service to prove a violation of USERRA, see Sheehan, 240 F.3d at 1015. We find
that the appellant has not met this showing. Similarly, we are unpersuaded by the
appellant’s reliance on the alleged animus of one employee under the cat’s paw
3
These include the appellant’s transfer requests dated March 11, 2011, June 20, 2011,
January 3, 2012, and May 29, 2012. Because the appellant argued that there is separate
evidence of military bias based on comments made during Career Board meetings that
post-date these transfer denials, we analyze the latter transfer denials separately. See
infra ¶ 10.
6
theory of liability. See PFR File, Tab 1 at 16; Aquino v. Department of Homeland
Security, 121 M.S.P.R. 35, ¶ 19 (2014) (describing the cat’s paw theory of
liability). Based upon the administrative judge’s credibility determinations,
which warrant our deference, we find no support for the appellant’s theory that
one employee impermissibly caused the agency’s Career Board to deny the
appellant’s several transfer requests on account of his military service.
¶10 The appellant also argues that two separate comments made during the
Career Board’s meetings in September 2012, and May 2013, demonstrate the
agency’s military bias. PFR File, Tab 1 at 26-27. In both instances, someone
present at the Career Board’s meetings commented about the appellant’s active
duty status with the U.S. Coast Guard, in one instance rhetorically asking whether
he would receive an extension of his U.S. Coast Guard assignment if he did not
receive a transfer within the agency and, in the other, posing the question of
whether he believed he worked for the agency or the U.S. Coast Guard. See ID
at 23 n.24 & 25 n.26.
¶11 Although these comments reflect that the appellant’s active duty status with
the U.S. Coast Guard was discussed at the Career Board meeting, we agree with
the administrative judge that these comments do not demonstrate by a
preponderance of the evidence that his military service factored into the agency’s
denials of his transfer requests. See McMillan v. Department of
Justice, 120 M.S.P.R. 1, ¶ 20 (2013). Importantly, these comments are unrelated
to the agency’s actual denials of his transfer requests, and they are not probative
of whether his military service was “one of the reasons for [the agency’s]
decision.” Id. (quoting Escher v. BWXT Y-12, LLC, 627 F.3d 1020, 1026 (6th Cir.
2010)).
¶12 We agree with the administrative judge, moreover, that the comment made
during the September 2012 Career Board meeting is countermanded by the
statements of another Career Board member who stressed the importance of
considering the appellant’s transfer request in a fair manner, but explained that
7
the appellant could not be transferred to headquarters because he lacked 4 years
of supervisory field experience. See ID at 23 n.24 (quoting RAF, Tab 12 at 55-56
of 87); see also IAF, Tab 9 at 58-59 of 64. The Board will consider all the
evidence when assessing whether the appellant has proven that his protected
military status motivated the agency’s conduct. See McMillan, 120 M.S.P.R. 1,
¶ 20. Such a holistic view of the Career Board’s September 2012 deliberations
reflects that the appellant’s military status was not part of the agency’s
underlying rationale for denying his September 2012 request.
¶13 As to the second comment referencing the appellant’s military service,
which was recorded during the Career Board’s May 15, 2013 meeting, the
appellant has failed to establish who made this comment and to what extent, if
any, this comment influenced the Career Board’s denial of the appellant’s last
two transfer requests. 4 See ID at 25 n.26; RAF, Tab 25 at 30-31. Such an
absence of proof is fatal to the appellant’s burden of demonstrating that his
military service was a motivating factor in the agency’s denial of his transfer
requests. 5
¶14 We further find that these comments are not direct evidence of military
bias. Generally, direct evidence of discrimination is any statement made by an
employer that (1) reflects directly the alleged discriminatory attitude, and
(2) bears directly on the contested employment decision. See Arredondo v. U.S.
Postal Service, 85 M.S.P.R. 113, ¶ 13 (2000). Even assuming that these
4
This issue was extensively explored by the appellant’s attorney with several agency
witnesses during the hearing. We defer to the administrative judge’s finding that this
comment was made after the Career Board already had voted to deny the appellant’s
MCST request that day. ID at 25 n.26. We likewise defer to the administrative judge’s
other credibility and factual determinations supporting his finding that this single
comment does not establish evidence of military bias in connection with the Career
Board’s denial.
5
We further agree with the administrative judge that the agency presented sufficient
evidence that it would have denied his last three transfer requests based upon its policy
that generally restricted supervisory transfers to headquarters until an employee had
accrued 4 years of supervisory service. See ID at 22 n.22; IAF, Tab 9 at 58 of 64.
8
comments directly reflect a discriminatory attitude toward the appellant based on
his military service, we find neither comment bears directly on the contested
transfer denials at issue, and that the agency has further presented preponderant
evidence that it would have denied his requests even in the absence of his military
service pursuant to its policies governing transfers to supervisory positions at its
headquarters. IAF, Tab 9 at 58-59 of 64.
¶15 The appellant also challenges the administrative judge’s denial of his
motion to strike portions of the hearing testimony based on the agency’s alleged
discovery deficiencies. PFR File, Tab 1 at 21-22. We find that the administrative
judge did not abuse his discretion in denying the motion to strike. RAF, Tab 37.
The record below reflects that the administrative judge granted the appellant’s
earlier motion to compel the production of certain documents and information
during the prehearing discovery phase of the appeal. IAF, Tab 43. Following his
order, however, neither party raised any unresolved discovery matters with the
administrative judge prior to the hearing. See, e.g., RAF, Tab 5; IAF, Tab 53
(prehearing conference summary stating that the “parties indicated discovery was
complete with the exception of one or more depositions”). Despite this, the
appellant argued at the outset of the hearing that the agency had failed to comply
with the administrative judge’s discovery order granting his motion to compel and
that it had not produced certain documents, including a rotational list that ranked
field supervisors, by seniority, who were eligible to transfer to headquarters.
Hearing Transcript, Volume 1 at 16-18. After some of the agency’s witnesses
testified at the hearing that the appellant had not completed the minimum 4-year
supervisory period needed to be eligible to transfer to headquarters, the appellant
argued that these portions of the hearing testimony should be struck based on the
agency’s failure to produce the rotational list ranking eligible employees. The
administrative judge allowed the appellant to file a post-hearing motion to strike,
RAF, Tab 21, which he denied, finding that the information sought by the
appellant was irrelevant because he had not yet served 4 years as a supervisor,
9
and thus was ineligible for a transfer to headquarters under the agency’s policies,
RAF, Tab 37.
¶16 We find no error in the administrative judge’s denial of the appellant’s
motion to strike. An administrative judge has broad discretion to regulate the
proceedings before him, including the ability to rule on discovery motions and to
impose sanctions as necessary to serve the ends of justice. See Defense
Intelligence Agency v. Department of Defense, 122 M.S.P.R. 444, ¶ 16 (2015).
We agree with the administrative judge that, even if the appellant sought the
rotational list in discovery, 6 the agency’s failure to produce the rotational list did
not adversely impact the appellant because he had not served 4 years in his
supervisory role at the time of his requests and, pursuant to agency policy, which
was disclosed during discovery, he was ineligible for a transfer to a headquarters
supervisory position. IAF, Tab 9 at 58-59 of 64 (the agency’s headquarters
rotational policy specifying that “Special Agents promoted to GS-14 positions
will serve a minimum of four years in a field supervisory assignment or
assignments.”); RAF, Tab 37 at 3. Thus, the information sought by the appellant
was immaterial to his claim of military bias, and we agree that the ends of justice
did not warrant the striking of testimony. See Jacoby v. U.S. Postal
Service, 85 M.S.P.R. 554, ¶ 8 (2000) (noting that a party moving for sanctions
must demonstrate prejudice stemming from the discovery deficiencies). We
further agree with the administrative judge that there was no basis for drawing an
adverse inference against the agency concerning its policy that supervisors must
have 4 years of field supervisory experience before becoming eligible for a
transfer to headquarters. RAF, Tab 37 at 3. The agency disclosed this policy
both in its agency file and during discovery, and the failure to produce a list of
6
The agency disputed that the appellant had sought a copy of the rotational list in
discovery. RAF, Tab 22.
10
employees eligible for a transfer does not warrant an inference that the agency did
not have such a policy in place. 7
¶17 Lastly, although not challenged by the appellant on review, we have
considered the remainder of the administrative judge’s initial decision denying
corrective action based upon the appellant’s nonselection for two supervisory
positions and the denial of his request for a transfer pursuant to USERRA. ID
at 7-14, 24. We agree with the administrative judge’s denial of corrective action
as to these issues.
¶18 Accordingly, after thoroughly considering the appellant’s arguments on
review, we find no reason to differ with the administrative judge’s denial of
corrective action. The initial decision is affirmed, and the appellant’s petition for
review is denied.
7
We similarly find that employees who had 4 years of supervisory experience, and were
thus eligible for rotation into headquarters, are not similarly situated to the appellant,
and that the agency’s failure to provide the rotational list did not impair the appellant’s
ability to demonstrate disparate treatment based on his military status. See Sheehan,
240 F.3d at 1014 (explaining that disparate treatment between similarly situated
employees “with similar work records” is one way for an appellant to establish a
violation of USERRA). To the extent the appellant argues on review that other
employees were exempted from this 4-year service requirement, his petition for review
is devoid of either factual support or citation to the record supporting this alleged
disparity in treatment. PFR File, Tab 1 at 26. We further find unconvincing the
appellant’s argument that the agency did not plead the existence of a 4-year supervisory
service prerequisite as an affirmative defense. Id. at 19-20. Although the Board
employs a burden-shifting analysis in USERRA appeals, the agency’s burden to show
that it would have taken the same action in the absence of the appellant’s military
service is not an affirmative defense under 5 C.F.R. § 1201.56, but rather is part of the
overall assessment employed to determine whether an agency has violated the statute.
See 38 U.S.C. § 4311(c)(1); 5 C.F.R. §§ 1201.56-1201.57. Under 5 C.F.R. § 1201.56,
an affirmative defense is an independent claim by an appellant, for which he bears the
burden of proof, that an agency committed some category of wrongdoing in effecting an
action appealable under 5 U.S.C. chapters 43 or 75. See 5 C.F.R. § 1201.56(c). That
concept is inapplicable in this appeal.
11
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States 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 Merit Systems Protection Board neither endorses the services
12
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.