MSPB Clarifies Scope of USERRA Hostile Work Environment and Retaliation Claims | Practical Law

MSPB Clarifies Scope of USERRA Hostile Work Environment and Retaliation Claims | Practical Law

In Kitlinski v. Department of Justice, the Merit Systems Protection Board (MSPB) held that for a federal employee to establish MSPB jurisdiction over a hostile work environment claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the employee must present non-frivolous allegations that an agency subjected him to a pattern of ongoing and persistent harassing behavior based on his military service that was severe or pervasive enough to alter his employment terms and conditions.

MSPB Clarifies Scope of USERRA Hostile Work Environment and Retaliation Claims

Practical Law Legal Update w-000-8590 (Approx. 5 pages)

MSPB Clarifies Scope of USERRA Hostile Work Environment and Retaliation Claims

by Practical Law Labor & Employment
Published on 23 Nov 2015 • USA (National/Federal)
In Kitlinski v. Department of Justice, the Merit Systems Protection Board (MSPB) held that for a federal employee to establish MSPB jurisdiction over a hostile work environment claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the employee must present non-frivolous allegations that an agency subjected him to a pattern of ongoing and persistent harassing behavior based on his military service that was severe or pervasive enough to alter his employment terms and conditions.
On November 16, 2015, in Kitlinski v. Department of Justice, the Merit Systems Protection Board (MSPB) held that for a federal employee to establish MSPB jurisdiction over a hostile work environment claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the employee must non-frivolously allege that an agency subjected him to a pattern of ongoing and persistent harassing behavior based on his military service that was severe or pervasive enough to alter his employment terms and conditions. This decision marks the first time the MSPB has articulated the elements needed to establish Board jurisdiction over a USERRA hostile work environment claim. ( (M.S.P.B. Nov. 16, 2015).)

Background

Darek Kitlinski worked as a Supervisory Special Agent for the Drug Enforcement Administration (DEA) and was working on an active duty assignment with the US Coast Guard. Kitlinski filed an appeal under USERRA alleging that he was subjected to discrimination, a hostile work environment, and retaliation for exercising his USERRA rights. (Kitlinski had previously filed two other USERRA appeals against the DEA as well as an equal employment opportunity (EEO) discrimination complaint with the DEA.)
An administrative judge dismissed Kitlinski's latest USERRA appeal for lack of jurisdiction, finding that the DEA's alleged surreptitious placement of a Blackberry device in Kitlinski's car (which Kitlinski found after being deposed in the EEO matter) did not:
  • Fall within the list of activities an agency may not take under the USERRA discrimination provision.
  • Form a basis for a USERRA retaliation claim because it did not constitute:
    • discriminatory treatment "in employment"; or
    • an "adverse employment action" under the USERRA discrimination statute.
The administrative judge further found that Kitlinski failed to non-frivolously allege that DEA subjected him to a hostile work environment. Kitlinski filed with the MSPB a petition for review of the administrative judge's initial decision.
USERRA prohibits discrimination against an individual who has performed in a uniformed service, defined as denying an employee initial employment, reemployment, retention, promotion, or any benefit of employment (38 U.S.C. § 4311(a)).
To establish MSPB jurisdiction in a USERRA discrimination case, an employee must non-frivolously allege that:
  • He performed service in a US uniformed service.
  • An agency denied him initial employment, reemployment, retention, promotion, or any benefit of employment.
  • The denial was due to the employee's performance of duty in the uniformed service.
(Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 10 (2012).)

Outcome

The MSPB denied Kitlinski's petition for review and affirmed, with modification, the administrative judge's initial decision dismissing Kitlinski's USERRA discrimination, hostile work environment, and retaliation claims. The MSPB held that:
  • Establishing MSPB jurisdiction over a hostile work environment claim under USERRA requires an employee to non-frivolously allege that:
    • he was subjected to a pattern of ongoing and persistent harassing behavior based on his military service; and
    • the harassing behavior was severe or pervasive enough to alter the terms and conditions of his employment.
  • Denying an employee a "benefit of employment" under USERRA does not extend to rights existing independent of the employee's employment relationship but only applies to benefits that:
    • flow to an employee because of his employment; or
    • affect the employee's employment status or employment-related interests with an agency.
The MSPB noted that:
  • The term "benefit of employment" is defined by USERRA as "terms, conditions, or privileges of employment," including among other things:
    • pension plan or health plan rights and benefits;
    • insurance coverage;
    • bonuses;
    • severance pay;
    • vacations; and
    • the opportunity to select work hours or work location.
(38 U.S.C. § 4311(a).)
  • The MPSB has recognized hostile work environment claims under USERRA's anti-discrimination provision but has not previously articulated the elements necessary for establishing a USERRA hostile work environment claim (Erlendson v. Department of Justice, 121 M.S.P.R. 441, ¶ 7 (2014)).
  • The MSPB will liberally construe the employee's allegations but the employee must generally allege some connection between the agency's actions and the employee's military status.
  • The standard for retaliation claims under USERRA differs from retaliation claims under Title VII. Title VII prohibits employers from discriminating against employees for exercising their Title VII rights, while USERRA's retaliation provision prohibits agencies from:
    • discriminating against employees "in employment"; or
    • taking adverse employment actions against employees for exercising their USERRA rights.
(Crews v. City of Mt. Vernon, 567 F.3d 860 (7th Cir. 2009); 38 U.S.C. § 4311(b).)
The MSPB found that Kitlinski's USERRA:
  • Hostile work environment claim failed because he did not non-frivolously allege that the DEA's hostile conduct toward him was based on his military status. Specifically, Kitlinski did not allege that the DEA placed the Blackberry in his car because of Kitlinski's active military service. (The administrative judge dismissed Kitlinski's hostile work environment claim on a different basis.)
  • Discrimination claim failed because he did not non-frivolously allege that the DEA allegedly placing a Blackberry in his car denied him a right or benefit that flowed to him based on his employment with the DEA. Kitlinski's purported right not to be illegally wiretapped arose from constitutional and Federal statutory law, not from his employment.
  • Retaliation claim failed because he did not non-frivolously allege that the DEA either:
    • discriminated against him in employment; or
    • took an adverse employment action against him because of his prior USERRA appeals.

Practical Implications

The MSPB's decision in Kitlinski articulates for the first time the necessary elements in establishing MSPB jurisdiction on a hostile work environment claim under USERRA's anti-discrimination provision. Those elements are closely tied to Title VII's "severe or pervasive" standard, with the MSPB requiring an employee to allege that such severe or pervasive conduct was a result of the employee's active military service.