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Married DEA employees refused to answer investigation questions, can’t revive USERRA, Title VII claims

By Brandi O. Brown, J.D.

It was their refusal to cooperate in the investigation of their own internal complaints that led to their termination, not the husband’s military service.

In an appeal from summary judgment in favor of the DEA on USERRA and Title VII claims brought by a married couple formerly employed by the agency, the Fourth Circuit agreed with the lower court’s assessment that their refusal to answer questions led to their terminations. USERRA prohibits discrimination based on military service, the court explained, it does not permit a servicemember, or his spouse, to refuse to comply with a civilian employer’s reasonable request that they participate in an internal investigation into their own allegations of wrongdoing for reasons not related to that service. The appeals court likewise rejected other arguments made by the couple and affirmed the district court judgment in its entirety (Kitlinski v. United States Department of Justice, April 8, 2021, Floyd, H.).

Cross-country move. After over a decade working for the DEA in San Diego, in 2011 couple sought a joint move to the District of Columbia area. The wife, a forensic chemist, was given a promotion that put her in the DEA headquarters in Arlington, Virginia. The husband, a supervisory special agent, sought to make a similar transition. A few months after submitting his first unsuccessful transfer request, however, he began serving active duty with the U.S. Coast Guard (he had previously been in the Reserves) and took a leave of absence from the DEA. He was stationed in the District of Columbia, which allowed him to relocate. He continued to submit transfer requests and apply for various vacant positions within the DEA, all of which he was denied. During this time he also initiated various administrative proceedings challenging those decisions by his employer and he filed EEO complaints alleging violations of Title VII. He also filed several USERRA appeals with the MSPB.

Complaint about hidden device. In 2014 the couple reported to the DEA headquarters for a deposition, after which they found a HR employee’s Blackberry device hidden under the hood of their car. Their complaints about this were referred to the Office of Professional Responsibility (OPR), which opened an inquiry. It was at this point, the employer contended, that the employees made decisions that led to their termination. The wife initially declined to appear for interviews as directed by OPR and then, when she did report, she declined to answer some of the questions based on privileges. Based on her interview conduct, OPR added her as a subject of investigation based on her failure to cooperate. The same happened with respect to her husband, who declined to attend a scheduled interview. They were subsequently fired.

They couple filed suit against the DEA asserting violations of the USERRA and Title VII. After the district court granted summary judgment for a second time to the employer (the first time around it left out a claim), the employees appealed.

USERRA claim. With regard to the employees’ wrongful termination claims under the USERRA, the appeals court considered each spouse’s claim separately. The husband’s complaint and briefing, the court explained, appeared to raise a discrimination claim under § 4311(a), which prohibits discrimination in hiring, rehiring, or retention of servicemembers, and a retaliation claim under § 4311(b) based on protected activity under that Act. Therefore, he needed to show that either his status as a servicemember or his protected activity was a motivating factor in his discharge. However, the appeals court concluded that no reasonable factfinder could reach either conclusion.

Although the couple argued that the OPR lacked the authority to order the husband to appear for an interview while he was on active duty and that his refusal was protected, that theory of liability, the court explained, led them to “wander far afield of § 4311, which requires some evidence of discriminatory animus by a civilian employer.” Any reasonable factfinder would conclude that the DEA fired him because he refused to attend the interview without a military-based reason.

There was no evidence that the Coast Guard objected or sought to prevent him from participating. Indeed, the Coast Guard’s enabling statute contemplated a cooperative relationship with federal agencies such as the DEA. The USERRA prohibits discrimination, the court explained. “It does not enable a servicemember to refuse to comply with his civilian employer’s reasonable request to participate in an internal investigation into his own allegations of wrongdoing for reasons unrelated to his military service and then claim protection from the adverse consequences flowing from that decision.”

USERRA retaliation claim. The wife’s claim fared no better on appeal. While she argued that she was fired in retaliation for her participation in or support of her husband’s USERRA appeals before the MSPB, she failed to show that protected activity was a motivating factor. The wife declined to answer various questions during her OPR interview and the appeals court agreed with the district court’s conclusion that any protected activities she might have undertaken in support of his claims did “not excuse her disruptive and insubordinate behavior” during the investigation or prevent her employer from taking disciplinary action. The couple provided no evidence that protected activity was a motivating factor in the decision.

The appeals court also had “little difficulty” determining that the employer’s interest in ensuring full participation in an internal investigation outweighed any interest the wife might have had in promoting the nondiscriminatory purpose of the USERRA.

Title VII claims. As to the couples’ wrongful termination claims under Title VII, the court also affirmed the lower court’s decision, agreeing that no reasonable factfinder could conclude that the employer terminated their employment in retaliation for their engagement in protected activity. There was no evidence that they were fired for any reason other than their conduct during the investigation. Their other arguments on appeal were likewise rejected and the appeals court affirmed the district court’s decision.