U.S. Merit Systems Protection Board 
Case Report for December 4, 2015

Change Font Size: + + + + +

Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Darek J. Kitlinski
Agency:  Department of Justice
Decision Number:  2015 MSPB 60
Docket Number:  SF-4324-15-0088-I-1
Issuance Date:  November 16, 2015
Appeal Type:  Uniformed Services Employment and Reemployment Rights Act (USERRA)

Veterans' Rights/USERRA
 - Discrimination
 - Hostile Work Environment
 - Retaliation for Exercise of Rights under USERRA

    The appellant serves as a Supervisory Special Agent with the Drug Enforcement Administration (DEA), and was on full-time active duty assignment with the U.S. Coast Guard during the time relevant to this appeal.  The appellant previously filed two USERRA appeals against the agency, as well as an EEO complaint of discrimination.  In the instant appeal, he alleged that, after he drove his personally owned vehicle to the agency's headquarters to attend a deposition in his EEO complaint, he discovered a Blackberry device concealed under the hood of his car upon arriving home.  The appellant further alleged that, based on his experience with the agency, the Blackberry he found is the same model issued to DEA employees and that the agency uses Blackberry devices for voice recording and electronic tracking and monitoring.  He further asserted that, based on his review of the agency's property inventory, the Blackberry in question was assigned to an agency human resources employee who was involved in one of his prior USERRA appeals.

     Based on the above information, the appellant filed the instant USERRA appeal alleging discrimination, a hostile work environment, and retaliation based upon his exercise of rights under USERRA.  In his initial decision, the administrative judge found that the agency's placement of a Blackberry in the appellant's car did not fall within any of the categories of conduct listed in 38 U.S.C.  4311(a) that the agency may not take on the basis of the appellant's military service.   The judge further found that the placement of a Blackberry in the appellant's car could not form the basis of a USERRA retaliation claim because it did not constitute discriminatory treatment "in employment" or constitute an "adverse employment action under 38 U.S.C.  4311(b).  Finally, the judge rejected the appellant's argument that the agency's investigation into his complaint constituted retaliation, and he further found that the appellant failed to nonfrivolously allege that the agency subjected him to a hostile work environment in violation of USERRA.  

Holdings:  The Board affirmed the initial decision as modified, finding that the appellant failed to nonfrivolously allege that the agency's alleged conduct was based on his military status or that the agency subjected him to a hostile work environment in violation of USERRA:  

1. The appellant failed to nonfrivolously allege that the agency discriminated against him in violation of 38 U.S.C.  4311(a).  

a. In a discrimination case under section 4311(a), "[a] person who . . . has performed service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that . . . performance of service."  

b. The Board agreed with the administrative judge's conclusion that the placement of a Blackberry in the appellant's personal vehicle does not fit within any of the specific examples of prohibited conduct listed in the statute, i.e., a denial of initial employment, reemployment, retention in employment, or promotion.  Nor did it fall within the remaining category of a denial of "any benefit of employment."

2. The appellant failed to nonfrivolously allege that the agency created a hostile work environment based on his military service in violation of USERRA.  

a. An appellant can maintain a hostile work environment claim under USERRA's anti-discrimination provision.  

b. The administrative judge's found that the appellant failed to nonfrivolously allege the existence of a hostile work environment based upon the two alleged incidents of agency misconduct:  the agency's placement of the Blackberry in his personal vehicle; and the agency's follow-up investigation based upon his complaint.  The Board modified these findings to conclude that the appellant's allegations, if true, failed to nonfrivolously allege that the agency subjected him to a hostile work environment on the basis of his military service in violation of USERRA.  

3.  The appellant failed to nonfrivolously allege that the agency retaliated against him because of his exercise of rights under USERRA.  

a. The USERRA standard for retaliation claims is set forth at 38 U.S.C.  4311(b), which provides that an employer "may not discriminate in employment against or take any adverse employment action against any person" because he "(1) has taken an action to enforce a protection afforded any person under this chapter . . . or (4) has exercised a right provided for in this chapter."  

b. The Board found that the appellant failed to nonfrivolously allege that the placement of a Blackberry in his car constituted an act of discrimination in employment because such an act does no deny him a benefit that insures to him by virtue of his employment with the agency.  


Appellant:  Jacquelynn Suzette McDaniel
Agency:  Office of Personnel Management
Decision Number:  2015 MSPB 61
Docket Number:  DC-0831-15-0331-I-1
Issuance Date:  December 1, 2015
Appeal Type:  CSRS - Retirement - Other than Initial
Case Type:  Retirement/Benefits Matter

Retirement
 - Lump Sums

    The appellant petitioned for review of an initial decision that affirmed an OPM reconsideration decision denying her application for a lump-sum payment under the Civil Service Retirement System (CSRS).  The appellant's father retired from federal service in 2008.  He designated the appellant as the sole beneficiary of any lump-sum benefit payable after his death.  He died in January 2009.  The deceased also was father to a minor child, B.P., and was formerly married to B.P.'s mother.  OPM denied the appellant's application for a lump-sum benefit on the basis that a lump-sum payment of retirement contributions is not payable when a former employee has children who are entitled to monthly annuity payments and that, in this instance, B.P. is entitled to such payments.  On appeal to the MSPB, the administrative judge affirmed OPM's reconsideration decision on the same basis.

Holding:  The Board denied the appellant's petition for review and affirmed the initial decision.  Although it is true that, under 5 U.S.C.  8342(c), designated beneficiaries come first in the order of precedence for receipt of a lump sum, a lump-sum benefit is payable to the survivor(s) in the order of precedence under that statute only if "there is no survivor who is entitled to monthly survivor annuity benefits on the death of [the] former employee."  5 C.F.R.  831.2003(a).  Here, B.P. is a survivor who became entitled to monthly survivor annuity benefits upon the death of her father under 5 U.S.C.  8341(e)(2).  The appellant therefore is not entitled to a lump-sum benefit.  





COURT DECISIONS

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Trotter-Low v. Merit Systems Protection Board, No. 2015-3147 (Nov. 6, 2015) (MSPB No. DA-0845-15-0145-I-1) (affirming the Board's decision, which dismissed Trotter-Low's appeal as untimely filed)

Purifoy v. Merit Systems Protection Board, No. 2015-3172 (Nov. 6, 2015) (MSPB No. AT-3443-12-0204-B-1) (affirming the Board's decision, which dismissed Purifoy's appeal for lack of jurisdiction)

Renville v. Department of Health & Human Services, No. 2015-3193 (Nov. 9, 2015) (MSPB No. DE-0752-14-0309-I-1) (affirming the Board's decision, which dismissed Renville's appeal as settled)

Slocum v. U.S. Postal Service, No. 2015-3097 (Nov. 10, 2015) (MSPB No. AT-0752-07-0157-C-2) (affirming the Board's decision, which dismissed Slocum's petition for enforcement under the doctrine of res judicata)

Morales v. Merit Systems Protection Board, No. 2015-3150 (Nov. 10, 2015) (MSPB No. NY-0353-14-0030-I-1) (affirming the Board's decision, which dismissed Morales's restoration appeal for lack of jurisdiction)

Stillwell v. Merit Systems Protection Board, No. 2015-3184 (Nov. 10, 2015) (MSPB No. SF-0841-15-0135-I-1) (affirming the Board's decision, which dismissed Stillwell's retirement appeal for lack of jurisdiction)

Wimper v. Merit Systems Protection Board, No. 2015-3061 (Dec. 2, 2015) (MSPB No. DC-0752-14-0617-I-1) (affirming the Board's decision, which dismissed Wimper's appeal for lack of jurisdiction on the basis that he failed to make a non-frivolous allegation that his resignation was involuntary)
     

U.S. Merit Systems Protection Board | Case Reports