                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAREK J. KITLINSKI,                             DOCKET NUMBER
                    Appellant,                       SF-4324-14-0184-I-2

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: November 3, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
