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Labor & Employment – Refusal, not service, prompted termination

Where an employee of the Drug Enforcement Administration was terminated because he refused to participate in a DEA internal investigation, not because of his Coast Guard service, his claims under the Uniformed Services Employment and Reemployment Rights Act of 1994, or USERRA, were dismissed.

Background

The Drug Enforcement Administration terminated the employment of Darek and Lisa Kitlinksi after they refused to participate in an internal investigation into their own allegations of misconduct by the DEA. At the time of his termination, Darek was serving on active duty with the U.S. Coast Guard.

The Kitlinskis contend that the DEA terminated Darek in violation of the USERRA. The Kitlinskis further assert that the DEA terminated Lisa in retaliation for her support of Darek’s USERRA claims against the DEA. The Kitlinskis also argue that the DEA retaliated against them for their prior protected activity in violation of Title VII of the Civil Rights Act of 1964.

The district court granted summary judgment in the DEA’s favor.

USERRA

The Kitlinskis’ complaint and briefing appear to raise a discrimination claim based on Darek’s status as a servicemember and a retaliation claim based on Darek’s prior USERRA-protected activity. To succeed on those claims, the Kitlinskis must show, respectively, that either Darek’s status as a service member or his prior protected activity was “a motivating factor” in his termination. No reasonable factfinder could reach either conclusion.

The Kitlinskis offer no evidence that Darek’s status as a service member in the Coast Guard was a motivating factor in the DEA’s decision to terminate his employment. Nor can the Kitlinskis point to any evidence that Darek’s prior USERRA-protected activity was a motivating factor in his termination.

Rather, any reasonable factfinder would conclude that the DEA terminated Darek’s employment because he refused to attend the Office of Professional Responsibility, or OPR, interview without any military-based reason for doing so. Indeed, there is no evidence that the Coast Guard ever objected to or sought to prevent Darek’s participation in the investigation or that Darek’s military service was ever an obstacle to his ability to attend the interview. The Kitlinskis therefore cannot claim that Darek’s failure to attend the interview was at all “related to his military obligations” or “required by [his] military service.”

Moreover, the Coast Guard’s enabling statute specifically contemplates a cooperative relationship with federal agencies. That cooperation becomes particularly important when a law-enforcement agency such as the DEA seeks assistance to investigate allegations of wrongdoing in its own ranks. And OPR did just that by working with the Coast Guard’s investigative team to secure Darek’s participation in the interview. Darek’s refusal to attend the interview prevented OPR from speaking to a witness whose testimony was among the most relevant in its investigation, effectively tying the hands of the DEA to uncover wrongdoing within the agency.

Similarly, to succeed on Lisa’s claim, the Kitlinskis must show Lisa’s USERRA-protected activity was “a motivating factor” in the DEA’s decision to terminate her employment. To the extent that Lisa engaged in any protected activity under USERRA, the Kitlinskis provide no evidence showing that her activity was a motivating factor in the DEA’s decision to terminate her employment. The record supports only one reason behind the DEA’s decision to terminate Lisa’s employment: her conduct during the OPR investigation, which is not protected under USERRA. No reasonable factfinder could conclude that any USERRA-protected activity was a motivating factor in Lisa’s termination.

Title VII

No reasonable factfinder could conclude that the DEA terminated the Kitlinskis’ employment in retaliation for engaging in protected activity. As the court has explained, the Kitlinskis offer no evidence showing that the DEA terminated their employment for any reason other than their conduct during the OPR investigation. And OPR initiated that investigation at Lisa’s request for the nondiscriminatory purpose of investigating the Kitlinskis’ own allegations of misconduct. Accordingly, the district court’s grant of summary judgment to the DEA on the Kitlinskis’ wrongful termination claims under Title VII is affirmed.

Affirmed.

Kitlinksi v. United States Department of Justice (Lawyers Weekly No. 001-075-21, 19 pp.) (Henry Franklin Floyd, J.) Case No. 19-1621. April 8, 2021. From E.D. Va. (Liam O’Grady, S.J.) Jackie Lynn White II and Kevin Edward Byrnes for Appellants. Kimere Jane Kimball for Appellees.


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