United States Court of Appeals 

for the Federal Circuit ______________________ 

DAREK J. KITLINSKI,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2016-1498

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-4324-15-0088-I-1.

______________________ 

Decided: May 31, 2017

______________________ 

KEVIN 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. 

______________________ 

Before DYK, BRYSON, and CHEN, Circuit Judges.

BRYSON, Circuit Judge.

Petitioner Darek J. Kitlinski appeals from a decision 

of the Merit Systems Protection Board dismissing various 
2 KITLINSKI v. MSPB

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.

I 

During 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.

Mr. 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.

 On 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 
KITLINSKI v. MSPB 3

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. 

Mr. 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.

In 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. 

The 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 interviewed. 

Prior 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 
4 KITLINSKI v. MSPB

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. 

 The 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 dismiss Mr. Kitlinski’s complaint for 

lack of jurisdiction, to which Mr. Kitlinski filed a reply.

In early 2015, the administrative judge issued a ruling dismissing the complaint for lack of jurisdiction. The 

administrative judge held that Mr. Kitlinski had failed to 

show that the Board had jurisdiction over his complaint 

because he had failed to make a nonfrivolous allegation 

that any of his claims gave rise to a USERRA violation. 

The administrative judge first addressed Mr. Kitlinski’s claim that the alleged placement of the Blackberry in 

his car constituted the denial of a “benefit of employment” 

on account of his military service, in violation of section 

4311(a), the anti-discrimination provision of USERRA, 38 

U.S.C. § 4311(a). The administrative judge noted that the 

term “benefit of employment” in section 4311(a) is defined 

in relevant part as the “terms, conditions, or privileges of 

employment.” 38 U.S.C. § 4303(2). Taking Mr. Kitlinski’s 

claim “at face value,” the administrative judge explained 

that “his contentions boil down to a claim that some 

unknown DEA employee placed a Blackberry device in 

the engine compartment of his personal vehicle on the 

morning of September 23, 2014, where it remained until 

around 1:00 p.m. when he removed and effectively disabled it.” Under those circumstances, the administrative 

judge concluded, Mr. Kitlinski “failed to nonfrivolously 
KITLINSKI v. MSPB 5

allege that the purported placement of a Blackberry 

device in the engine compartment of his personal vehicle 

for a period of hours constituted a denial of any benefit of 

employment as it did not affect any term, condition or 

privilege of employment.”

The administrative judge then turned to Mr. Kitlinski’s claim that the DEA’s alleged placement of the Blackberry device in his car constituted an act of retaliation for 

his prior pursuit of a USERRA claim, in violation of the 

anti-retaliation provision of USERRA, 38 U.S.C. 

§ 4311(b). That provision states that an employer “may 

not discriminate in employment against or take any 

adverse employment action against any person” because 

that person has taken action to enforce a right afforded by 

the USERRA statute. 

The administrative judge found that Mr. Kitlinski had 

failed to nonfrivolously allege that the Blackberry incident constituted either an adverse employment action or 

discrimination in employment. The administrative judge 

pointed out that there was no evidence that Mr. Kitlinski’s employment status with the DEA, and in particular 

his extended leave to allow him to serve on active duty, 

was in any way affected by the incident, or that the DEA

took any adverse employment action against him.

The administrative judge next turned to Mr. Kitlinski’s claim that the DEA’s investigation of the Blackberry 

incident constituted an act of retaliation for his USERRA 

activities. The administrative judge noted that an investigation “is not a personnel action per se,” and that even if 

an agency investigation without an accompanying personnel action could constitute a potential act of retaliation 

under USERRA, “the undisputed facts here would undermine such a claim,” as it was Mr. Kitlinski “and his 

wife who sought to have the matter investigated.” 

As for the OPR investigators’ meeting with Mr. 

Kitlinski at the Coast Guard headquarters, the adminis-
6 KITLINSKI v. MSPB

trative judge found that the investigators were authorized 

to require DEA employees to respond to material and 

relevant questions and to produce or grant access to 

government property, and that DEA employees are required to respond to questions in such investigative 

proceedings. Moreover, the administrative judge noted, 

Mr. Kitlinski declined to appear at the interview or turn 

over the Blackberry, so the interruption of his work with 

the Coast Guard was limited to the brief meeting with the 

OPR investigators at the Coast Guard headquarters. 

Consequently, the administrative judge found that the 

actions alleged by Mr. Kitlinski in connection with the 

DEA investigation of the Blackberry incident were not 

materially adverse. For that reason, the administrative 

judge found that Mr. Kitlinski had “failed to nonfrivolously allege that the agency conducted its investigation in 

such a manner so as to support a claim that it was done in 

retaliation for the appellant having previously pursued 

his rights pursuant to USERRA.”

The administrative judge next addressed Mr. Kitlinski’s claim that the agency’s actions created an actionable 

“hostile work environment” based on reprisal under 

USERRA. As to that issue, the administrative judge 

acknowledged that USERRA protects the right to be free 

from a hostile work environment based on military service 

and assumed that the prohibition against retaliation in 

section 4311(b) would include hostile work environment 

claims. Nonetheless, the administrative judge found that 

the agency conduct at issue was confined to two incidents—the Blackberry incident and the ensuing investigation—and that the consequences of the two incidents 

were not severe. The Blackberry was present in Mr. 

Kitlinski’s vehicle only for a short period of time—and 

only when Mr. Kitlinski was alone in the car—before he 

discovered it. And as for the investigation, the administrative judge noted that it had been precipitated by the 

Kitlinskis’ complaints and had not involved any humiliat-
KITLINSKI v. MSPB 7

ing or physically threatening conduct. The administrative 

judge further found that the agency’s alleged harassment 

did not interfere with Mr. Kitlinski’s work for the DEA, 

nor did the brief meeting with the OPR investigators at 

the Coast Guard headquarters interfere unreasonably 

with Mr. Kitlinski’s work while on active duty with the 

Coast Guard or otherwise rise to the level of actionable 

harassment.

Based on that analysis, the administrative judge 

found that Mr. Kitlinski had failed to make a nonfrivolous 

allegation (1) that he was subjected to the denial of a 

benefit of employment under section 4311(a) based on his 

military service; (2) that the DEA took an adverse employment action or otherwise discriminated in employment against him under section 4311(b) for engaging in 

protected USERRA activity; and (3) that he was subjected 

to a hostile work environment or actionable harassment 

under either sections 4311(a) or 4311(b).

Mr. Kitlinski petitioned the full Board for review of 

the administrative judge’s decision. On review, the Board 

upheld the dismissal of Mr. Kitlinski’s claims, although it 

modified the administrative judge’s initial decision in one 

respect. 

The Board first agreed with the administrative judge 

that, even accepting Mr. Kitlinski’s version of the facts, 

the Blackberry incident did not deny him a benefit of

employment and therefore did not constitute discrimination under USERRA. 

Second, the Board held that Mr. Kitlinski had failed 

to nonfrivolously allege that the DEA’s conduct had 

created a hostile work environment in violation of 

USERRA’s anti-discrimination provision. On that issue, 

the Board’s analysis differed from that of the administrative judge. The Board ruled that the flaw in Mr. Kitlinski’s case was his failure to show that the measures 

alleged to have given rise to the hostile work environment
8 KITLINSKI v. MSPB

were taken based on Mr. Kitlinski’s military status, which 

is a necessary element of a discrimination claim under 

USERRA section 4311(a).

Third, the Board held that Mr. Kitlinski had failed to 

make a nonfrivolous allegation that the agency had 

retaliated against him for previous USERRA activity. On 

that issue, the Board agreed with the administrative 

judge that USERRA’s anti-retaliation provision, section 

4311(b), requires proof that the employer’s allegedly 

retaliatory measures constituted “discrimination in 

employment” or “an adverse employment action.” Because the Board concluded that the Blackberry incident 

and the subsequent OPR investigation did not constitute 

either an adverse employment action or discrimination in 

employment, it held that it lacked jurisdiction over Mr. 

Kitlinski’s retaliation claim.

Although the Board addressed Mr. Kitlinski’s claim of

discrimination based on a hostile work environment as 

well as his claim of retaliation based on the Blackberry 

incident and the OPR investigation, it did not make a 

separate finding as to Mr. Kitlinski’s claim that the DEA

had created a hostile work environment in retaliation for 

his USERRA activities.

II

In this court, the Board’s counsel acknowledges that 

the full Board did not address Mr. Kitlinski’s claim of 

retaliation in the form of a hostile work environment. 

The Board’s counsel asks us to remand that portion of the 

case to the Board in order for the Board to address and 

decide that issue in the first instance. The Board’s counsel defends the Board’s decisions with respect to each of 

Mr. Kitlinski’s other three claims. We address those

three claims below. 

1. The anti-discrimination provision of USERRA, 38 

U.S.C. § 4311(a), states that a person who is a member of 
KITLINSKI v. MSPB 9

a uniformed service shall not be denied “initial employment, reemployment, retention in employment, promotion, or any benefit of employment” on the basis of his 

membership in the military or performance of military 

service. A person claiming discrimination by a federal 

executive agency in violation of section 4311(a) of 

USERRA may choose to submit a complaint directly to 

the Merit Systems Protection Board. 38 U.S.C. 

§ 4324(b).1 In order to establish that the Merit Systems 

Protection Board has jurisdiction over a USERRA discrimination claim, the appellant must make a nonfrivolous allegation that his military service was “a substantial or motivating factor” in the agency’s action in 

question. Erickson v. U.S. Postal Serv., 571 F.3d 1364, 

1368 (Fed. Cir. 2009); Sheehan v. Dep’t of the Navy, 240 

F.3d 1009, 1013 (Fed. Cir. 2001); Lourens v. Merit Sys. 

Prot. Bd., 193 F.3d 1369, 1370 (Fed. Cir. 1999); see also 38 

U.S.C. § 4311(c); Wilborn v. Merit Sys. Prot. Bd., No. 

2016-2533, 2017 WL 930807, at *2 (Fed. Cir. Mar. 9, 

2017); Baney v. Merit Sys. Prot. Bd., 415 F. App’x 244, 246 

(Fed. Cir. 2011).

Mr. Kitlinski’s first claim is that the DEA discriminated against him in violation of USERRA section 4311(a) 

because of his military service. The problem with that 

claim, as the Board held, is that the agency’s actions do 

not fit within the categories of actions that section 4311(a) 

 

1 As an alternative to a direct complaint to the 

Board, an employee may elect to apply to the Secretary of 

Labor for assistance with his discrimination claim. See 38 

U.S.C. § 4322(a). The Secretary may attempt to resolve 

the matter or refer it to the Office of Special Counsel, 

which may assist the employee with his complaint before 

the Board. See 38 U.S.C. §§ 4322(d), 4324(a). Mr. Kitlinski did not elect that option, but filed his complaint directly with the Board. 
10 KITLINSKI v. MSPB

prohibits an agency from taking, i.e., the denial of “initial 

employment, reemployment, retention in employment, 

promotion, or any benefit of employment.” 

The only one of those prohibitions that Mr. Kitlinski 

argues is applicable in this case is the denial of a “benefit 

of employment.” We agree with the Board, however, that 

the agency’s alleged placement of the Blackberry in Mr. 

Kitlinski’s car did not constitute the denial of a “benefit of 

employment” within the meaning of section 4311(a) of 

USERRA. This court has held that “a nexus between an 

allegedly-denied benefit and one’s employment is an 

essential component of this type of USERRA claim.” 

Thomsen v. Dep’t of the Treasury, 169 F.3d 1378, 1381 

(Fed. Cir. 1999). It would stretch the term “benefit of 

employment” far beyond its reasonable limits to construe 

it to mean freedom from any improper or unlawful acts 

committed by any representative of an employer outside 

the workplace, such as the alleged placement of a Blackberry in Mr. Kitlinski’s vehicle while he was present at 

the DEA headquarters for a deposition.2 

 

2 Mr. Kitlinski cites several cases in which excessive monitoring of an employee was asserted as a basis for 

a claim of retaliation or a hostile work environment under 

other statutes. Those cases involved extended periods of 

monitoring in the workplace, quite different from the 

single instance of monitoring outside of the workplace 

that is alleged in this case.

In his petition for review to the full Board, Mr. Kitlinski was critical of the administrative judge’s characterization of the alleged placement of the Blackberry as lasting 

only a few hours on the morning of Mr. Kitlinski’s deposition. Appellant’s Petition for Review at 10. In his narrative attachment to his complaint, however, Mr. Kitlinski 

specifically asserted that the “placement of the listening 

and tracking device occurred on the very day I was de-
KITLINSKI v. MSPB 11

Similarly, the investigative measures taken by the 

OPR investigators cannot reasonably be characterized as 

the denial of a benefit of employment. While Mr. Kitlinski objects to the steps taken by the OPR investigators, 

including meeting Mr. Kitlinski at the Coast Guard 

headquarters and insisting that he produce the Blackberry and appear for an interview at the DEA headquarters 

the next day, those actions did not deny Mr. Kitlinski a 

benefit of employment under any reasonable definition of 

that term. That conclusion is confirmed by section 

4303(2) of USERRA, which defines the term “benefit of 

employment” to mean the “terms, conditions, or privileges 

of employment” and benefits flowing therefrom.

Mr. Kitlinski argues that the purpose of the Blackberry incident was to enable the DEA to obtain information 

to use in the legal proceedings he had brought against the 

agency, including his two prior USERRA claims. That 

contention, even if true, would not make freedom from 

monitoring outside the workplace a “benefit of employment” within the meaning of USERRA. The Board therefore correctly held that Mr. Kitlinski failed to make a 

nonfrivolous allegation of acts of USERRA discrimination 

under section 4311(a) based on the Blackberry incident 

and the OPR investigation.

2. Mr. Kitlinski’s second claim is that the combination of the Blackberry incident and the DEA’s subsequent 

investigation of that incident created a hostile work 

environment. He argues on appeal that the creation of a 

hostile work environment constituted discrimination 

based on his military service, in violation of USERRA 

section 4311(a), because it was motivated by anti-military 

 

posed by the Agency,” e-Appeal Attachment Transmittal 

at 6-7; see also id. at 3. It was therefore entirely reasonable for the administrative judge to accept Mr. Kitlinski’s 

factual proffer on that issue as true. 
12 KITLINSKI v. MSPB

animus. That claim, too, was properly rejected. As the 

Board observed, Mr. Kitlinski did not allege before the 

Board that the DEA created a hostile work environment

because of his military service. Nor has Mr. Kitlinski 

pointed to any evidence of such a motivation.

In his brief, Mr. Kitlinski alludes to an attachment to 

his petition for review by the full Board, which he characterizes as reciting the “long standing number of disputes 

with the DEA,” and detailing “repeated act[s] of discriminatory animus, denials of promotions and transfers, 

inaccurate responses to pointed Congressional inquiries,

anti-military comments by the DEA Career Board, conflicting Agency explanations for its conduct and years long 

contests between Petitioner and the Agency over personnel actions taken or not taken.” But a document describing Mr. Kitlinski’s clashes with the agency is no 

substitute for an allegation of anti-military animus as the 

basis for creating a hostile work environment. The discrimination claim in the form of a hostile work environment based on military status therefore fails on that 

ground.

3. Mr. Kitlinski’s third claim is that the Blackberry 

incident and the subsequent OPR investigation constituted individual acts of retaliation against him because of his 

prior invocation of his rights under USERRA, and that 

those acts therefore violated section 4311(b), USERRA’s 

anti-retaliation provision. The Board held that Mr. 

Kitlinski failed to make a nonfrivolous allegation that 

either the Blackberry incident or the subsequent investigation qualified as an individual act of retaliation for his 

previous USERRA activities, and we agree. 

USERRA’s prohibition against retaliation in section 

4311(b) provides that an employer “may not discriminate 

in employment against or take any adverse employment 

action against any person” because he has taken an action 

to enforce a protection provided by USERRA or has exer-
KITLINSKI v. MSPB 13

cised a right provided for by USERRA. 38 U.S.C. 

§ 4311(b). Thus, the anti-reprisal statute is limited to 

barring acts of discrimination in employment and adverse 

employment actions. See Lisdahl v. Mayo Found., 633 

F.3d 712, 721 (8th Cir. 2011); Crews v. City of Mt. Vernon, 

567 F.3d 860 (7th Cir. 2009).3

As the Board held, the Blackberry incident and the 

investigation that followed it do not constitute acts of 

“discrimination in employment” or “adverse employment 

actions.” With respect to “discrimination in employment,” 

the placement of a Blackberry in Mr. Kitlinski’s car, as 

the Board found, “does not deny him a benefit that inures 

to him by virtue of his employment with the agency.” Nor 

does that act constitute an “adverse employment action,” 

which is generally defined to include actions adversely 

affecting the employee’s employment status, such as 

firing, demotion, suspension, a loss of benefits, or a reduction in pay.

Similarly, as the Board ruled, an investigation does 

not ordinarily constitute an act of “discrimination in 

employment” or an “adverse employment action.” That is 

particularly clear in this case, as the investigation did not 

relate directly to Mr. Kitlinski’s employment with the 

DEA. As the administrative judge pointed out, Mr. 

Kitlinski had been on long-term leave from the DEA while 

he served with the Coast Guard, and the investigation 

related to an incident that occurred at the time of his 

deposition in his EEO case against the agency. The 

 

3 As the Crews court explained, the language of the 

anti-retaliation provision of Title VII of the Civil Rights 

Act of 1964, 42 U.S.C. § 2000e-3(a) does not contain the 

limiting language found in section 4311(b) of USERRA; 

for that reason the anti-retaliation provision of Title VII 

has not been limited to employment-related actions. 

Crews, 567 F.3d at 869.
14 KITLINSKI v. MSPB

investigation thus had no apparent effect on his employment with the DEA and did not constitute discrimination 

in employment or an adverse employment action. We 

therefore sustain the Board’s ruling that Mr. Kitlinski 

failed to make a nonfrivolous allegation that the discrete 

actions about which he complains—the Blackberry incident and the investigative activities that followed—

violated USERRA’s anti-retaliation provision. 

4. As noted, the full Board did not address one of Mr. 

Kitlinski’s claims: that the creation of a hostile work 

environment was the product of forbidden retaliation 

under section 4311(b), the anti-retaliation provision of 

USERRA. The Board’s counsel has requested that we 

remand the case to the Board to address that issue in the 

first instance. We grant the request of the Board’s counsel. Therefore, while we uphold the Board’s decision with 

respect to the three claims that the Board addressed, we 

vacate the Board’s order and remand the case to the 

Board in order to enable the Board to address the issue 

that was left unaddressed in the initial petition for review 

proceeding.

Each party shall bear its own costs for this appeal. 

AFFIRMED IN PART, VACATED IN PART, AND 

REMANDED