UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DAREK J. KITLINSKI,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

SF-4324-14-0184-I-2

DATE: November 3, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board