                  Note: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.

     United States Court of Appeals for the Federal Circuit
                                        06-3069

                                ROBERT W. KITTS, JR.,

                                                              Petitioner,

                                           v.

                        DEPARTMENT OF TRANSPORTATION,

                                                              Respondent.

                           ___________________________

                           DECIDED: July 17, 2006
                           ___________________________

Before MICHEL, Chief Judge, RADER and SCHALL, Circuit Judges.

RADER, Circuit Judge.

      The Merit Systems Protection Board (Board) affirmed the Department of

Transportation’s (Agency) removal of Mr. Robert W. Kitts, Jr. See Robert W. Kitts, Jr. v.

Dep’t of Transp., SF-3443-03-0261-I-6 (M.S.P.B. Mar. 25, 2005) (Initial Decision);

Robert W. Kitts, Jr. v. Dep’t of Transp., SF-3443-03-0261-I-6 (M.S.P.B. Sept. 20, 2005)

(Final Decision). Mr. Kitts claims the Agency’s decision is in violation of the Uniformed

Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§

4301–4333. Finding no reversible error, this court affirms.

                                                I

      Mr. Kitts worked as a Civil Aviation Security Specialist with the Federal Air

Marshal Service, Los Angeles Division.      When he applied for employment with the
Agency on February 11, 2002, Mr. Kitts hid critical information.        Mr. Kitts did not

disclose that he was still on “administrative leave” from his position as a Deputy U.S.

Marshal for the United States Marshal Service (USMS). In October 2001, the USMS

relieved Mr. Kitts of his duties as a Deputy U.S. Marshall and placed him on

“administrative leave” because three active misconduct investigations were still pending

against him before the USMS’s Disciplinary Review Board.            These investigations

involved allegations of fighting, making a false statement, and concealing evidence

(handguns and marijuana). When he applied to the Agency, Mr. Kitts falsely marked

“No” on his Questionnaire for National Security Positions (QNSP) when asked if he had

ever been fired, or left a job under unfavorable circumstances or following allegations of

misconduct. Additionally, though also asked to provide self-employment information in

his QNSP, Mr. Kitts did not disclose that he was self-employed. His self-employment

involved hiring felons for delivery work.

       In addition, while employed with the Agency, Mr. Kitts also failed to disclose that

he was engaged in conduct that directly contravened his obligation not to associate with

convicted felons outside his Agency employment. On August 12, 2002, the Office of

Inspector General (OIG) notified the Agency of a complaint against Mr. Kitts.

Investigation into this complaint by the OIG revealed that Mr. Kitts had hired eight felons

to work for him, between January 23 and July 11, 2002. As a result, the Agency also

investigated the OIG complaint between September 17, 2003 – October 3, 2003. This

investigation confirmed that Mr. Kitts had been hiring felons to work for him while

employed with the Agency. This information was placed in a Report of Investigation,




06-3069                                     2
which the Deciding Official (DO) received in early December 2002. Around January 10,

2003, the DO received approval to remove Mr. Kitts.

      Mr. Kitts argues that he was removed because he was on military leave from

January 6 – 10, 2003, and because he received mobilization orders on January 24th.

Mr. Kitts points out that he sent an email to his supervisor on January 22, 2003, in which

he advised that his military unit may mobilize soon. However, in this email, Mr. Kitts

also wanted to know why he had been taken off flight status the previous week. His

supervisor responded to this email stating that he understood that “allot[sic] of

personnel” were “mobilizing” and that “[t]he ASAIC needs to speak to you, in person, but

since you have been on military leave, this had not been possible.” His supervisor

asked if “there [was] any date you can see in the future when you can resolve this with

the ATSAIC(sic)?” The record contains no further response from Mr. Kitts. The Agency

then mailed its termination letter to Mr. Kitts on January 24, 2003. Later that day, Mr.

Kitts sent an email notifying his supervisor and others that he had received mobilization

orders. Based on proximity in time between his termination and military activity, Mr.

Kitts argues that the Agency’s decision to terminate him was in violation of USERRA.

                                                II

      This court will not set aside a decision of the Board, unless it finds the decision to

be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

the law; (2) obtained without procedures required by law, rule or regulation having been

followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c); Walls v. Merit

Sys. Prot. Bd., 29 F.3d 1578, 1581 (Fed. Cir. 1994). The USERRA provides:

      A person who is a member of . . . performs, has performed . . . or has an
      obligation to perform service in a uniformed service shall not be denied



06-3069                                     3
      initial employment, reemployment, retention in employment . . . by an
      employer on the basis of that membership . . . performance of service . . .
      or obligation.

              ****
      (c) An employer shall be considered to have engaged in actions prohibited
      . . . under subsection (a), if the person's membership . . . service . . . or
      obligation for service in the uniformed services 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 . . . service . . . or
      obligation for service.

38 U.S.C. § 4311 (2005). 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 adverse

employment action. Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001).

Discriminatory motivation under the USERRA may be reasonably inferred from a variety

of factors, including proximity in time between the employee’s military activity and the

adverse employment action, inconsistencies between the proffered reason and other

actions of the employer, an employer’s expressed hostility towards members protected

by the statute together with knowledge of the employee’s military activity, and disparate

treatment of certain employees compared to other employees with similar work records

or offenses. Id. at 1014. When the employee has met this burden, the burden shifts to

the employer to prove the affirmative defense that legitimate reasons, standing alone,

would have induced the employer to take the same adverse action.             Id.   Thus, in

USERRA actions there must be an initial showing by the employee that military status

was at least a motivating or substantial factor in the agency action, upon which the

agency must prove, by a preponderance of evidence, that the action would have been

taken despite the protected status. Id.




06-3069                                     4
      The Board found that Mr. Kitts did not make an initial showing that his military

status or obligations were at least a motivating or substantial factor in the Agency’s

decision to terminate him. As set out above, the Board found that the Agency’s decision

to terminate Mr. Kitts was made because Mr. Kitts lied on his employment application,

and hid critical information while employed with the Agency. Furthermore, though Mr.

Kitts advised the Agency that he may be mobilized on January 22, 2003, and then that

he had received mobilization orders on January 24, 2003, this was after the decision

had been made to remove him, and his January 24th email was not received until after

his removal letter had been mailed. Thus, this court discerns that substantial evidence

supports the Board’s conclusion that the decision to remove Mr. Kitts was made without

his military status or obligations having any impact upon the decision to remove him.




06-3069                                    5
