[00:00:00] Speaker 02:
upon the fact that this was covered under USERRA.

[00:00:04] Speaker 02:
But the fact of the matter is this is a separate issue as to whether or not the conduct in this case was two things, I think, are the central arguments.

[00:00:13] Speaker 02:
One, was it related to his employment?

[00:00:15] Speaker 02:
In other words, was it done by his employer?

[00:00:18] Speaker 02:
Because the standard in this case, in Thompson and other cases, is that the right has to arise out of the employment context.

[00:00:25] Speaker 04:
The government has said we should remand the hostile work environment claim based on retaliation.

[00:00:31] Speaker 02:
Well, I appreciate the government's agreement to do that, but I think that there are larger issues at stake here that warrant the court's action.

[00:00:40] Speaker 02:
We don't object to the remand, do you?

[00:00:43] Speaker 02:
I would prefer that you rule that we're proven our case, but I think that since this rose in a jurisdictional level, I would expect that a remand would be done.

[00:00:51] Speaker 02:
Okay, so what are you seeking that's not covered by the remand?

[00:00:55] Speaker 02:
The other, the trouble with the board's opinion was that the board, the assumption the board made is that the placement, and this is, since it's in the record as pictures, this is the actual phone.

[00:01:10] Speaker 02:
This was what Mr. Kudlinski found

[00:01:12] Speaker 02:
with the DEA inscription on it, stuffed in his car.

[00:01:15] Speaker 02:
The problem with the board's opinion is on the broader issues of whether or not that can be an act of discrimination or retaliation.

[00:01:22] Speaker 02:
The board decided that it couldn't.

[00:01:24] Speaker 02:
And it decided that based on two things.

[00:01:27] Speaker 02:
One, that it wasn't arising out of the employment context.

[00:01:30] Speaker 02:
And two, that the right implicated was a constitutional one and therefore couldn't be brought as a USERRA-based claim.

[00:01:37] Speaker 02:
We think both of those arguments are incorrect.

[00:01:40] Speaker 02:
First of all,

[00:01:41] Speaker 02:
How can a situation where the perception is, at least, that an employer-generated telephone found in an employee's car is not related to the employment context?

[00:01:51] Speaker 02:
It would seem to be logical to us that that is, in fact, arising out of the employment.

[00:01:57] Speaker 02:
The secondary facts are that Mr. Kydlinski had a pending USERRA appeal.

[00:02:01] Speaker 02:
When Mr. Kydlinski was at the DEA for this deposition where this phone was found, he was in the same uniform he sits here today in.

[00:02:09] Speaker 02:
The issue for this court is, is that arising out of the employment context?

[00:02:15] Speaker 02:
And we think clearly it is.

[00:02:17] Speaker 02:
I mean, the only rationale for installing the telephone would have been to track or monitor his movements, particularly while he was in the military, or to gather information to help defeat his claim.

[00:02:30] Speaker 02:
The secondary issue of calling him in off of military duty to answer questions

[00:02:36] Speaker 02:
without really any authority, but simply going to the military and demanding without proffering pay or anything else, that he leave his service commitment to come over and answer questions also arises from the DEA's employment context.

[00:02:50] Speaker 02:
It is the DEA doing these actions.

[00:02:52] Speaker 02:
The second issue is, is this materially adverse?

[00:02:55] Speaker 02:
The government relies heavily on Cruz, and we recognize that Cruz has some application here, but Cruz was

[00:03:04] Speaker 02:
What's limited to the understanding that includes what was happening is the reservist was asking for greater rights than he would be entitled to under the law.

[00:03:12] Speaker 02:
The city had a policy to allow him alternative leave to meet his reserve requirements, which it then took back.

[00:03:18] Speaker 02:
I think the Seventh Circuit rightly said, well, if the employer extends a burden that's not required in the law and they withdraw that benefit, then that is not an adverse employment action.

[00:03:29] Speaker 02:
But the Cruz Court also said that you rely on Burlington Northern for your context.

[00:03:35] Speaker 02:
In other words, that the Title VII analysis in Burlington is what Cruz actually used.

[00:03:41] Speaker 02:
So it wasn't what the government was saying that Cruz said that this has to be related to a tangible economic benefit, which is what the government suggests.

[00:03:51] Speaker 02:
What Cruz focused on, and Burlington focuses on from the Supreme Court, and it's reemphasized in Staub versus Proctor Hospital,

[00:03:58] Speaker 02:
Supreme Court case, is that a materially adverse action within the retaliation context is one that would discourage an employee from coming forward.

[00:04:08] Speaker 02:
Would it shield that employee's assertion of a protected right?

[00:04:11] Speaker 02:
Yeah, but the statute here says it has to be a benefit of employment, right?

[00:04:16] Speaker 02:
Right, but as the court in Montoya in California found, freedom from

[00:04:21] Speaker 02:
A hostile work environment itself is a form of a benefit.

[00:04:24] Speaker 04:
But there you go.

[00:04:25] Speaker 02:
There's the hostile work environment claim that's going to be the subject of the remand.

[00:04:29] Speaker 02:
But there's a secondary context to this issue, which is the other aspect of this is not just hostile work environment, because the government cites that it has to be severe and pervasive.

[00:04:40] Speaker 02:
Actually, it's severe or pervasive under the standard.

[00:04:43] Speaker 02:
The question is, is this a cognizable act of retaliation?

[00:04:48] Speaker 02:
In other words,

[00:04:48] Speaker 02:
Is it retaliatory to place a listening device in someone's vehicle, which seemed to be for the intended purpose of gathering information outside the administrative context of the case involved?

[00:05:02] Speaker 02:
The board seemed to feel that this was only a constitutional violation.

[00:05:05] Speaker 02:
And while I agree with the circuit court's view of this, remember what the MSPP argued.

[00:05:11] Speaker 02:
It said that you couldn't bring this because

[00:05:14] Speaker 02:
It didn't say this is part of retaliatory hostile work environment.

[00:05:18] Speaker 02:
It said, in fact, that this doesn't even arise to an issue that can be litigated in any context because it's a constitutional right and therefore cannot implicate any aspect of his employment context.

[00:05:31] Speaker 02:
We think that's simply wrong.

[00:05:32] Speaker 02:
And the reason is, again, taking the Title VII context out of Burlington, if I am raped in the workplace, that is a form of sexual harassment.

[00:05:41] Speaker 02:
It is also a crime.

[00:05:43] Speaker 02:
If I have a listening device installed in my car during the context of litigation, that could potentially be a crime as well.

[00:05:51] Speaker 02:
It does not mean it's not an aspect of retaliation.

[00:05:54] Speaker 02:
It does not mean it's not a materially adverse action that would chill my designation of rights.

[00:05:59] Speaker 02:
And remember, the Federal Circuit and the MSPB appeal came up before the termination.

[00:06:05] Speaker 02:
So in the process, what happened is the board said that this can only be a crime.

[00:06:09] Speaker 04:
What's the difference between what you want

[00:06:12] Speaker 02:
and what the government is willing to give you.

[00:06:14] Speaker 02:
Because if the government gives me this, the board will then remand this case and decide that even in the hostile work environment, this cannot be an adverse type of employment action that's not sufficiently material using the cruise analysis and therefore would end up with basically an exercise in futility.

[00:06:30] Speaker 02:
But that's for another day, isn't it?

[00:06:32] Speaker 02:
But this court could rule that within the context of this case, this act is a separate act of retaliation and therefore ensure

[00:06:42] Speaker 02:
that when the board handles the retaliatory work environment claim, it's operating on a premise of two separate matters.

[00:06:48] Speaker 02:
Because again, your honors, the point that we are trying to raise here is the issue of whether or not this act in itself is materially adverse enough to dissuade a member of a protected class from asserting their rights.

[00:07:04] Speaker 02:
If we simply go back on the hostile work environment, Judge Dyke, if we simply go back on that, we believe that the board will rule

[00:07:11] Speaker 02:
as the judge did below, that this was not severe or pervasive enough.

[00:07:16] Speaker 02:
And the judge made that surmise based on his sense, nowhere in the record, that this was only installed for a short period.

[00:07:23] Speaker 02:
The fact of the matter is, if we do not... It's up before us now.

[00:07:26] Speaker 03:
Didn't the board reject that line of thinking?

[00:07:29] Speaker 02:
Yes, they did.

[00:07:30] Speaker 02:
They did, but they... So we can't assume that they will...

[00:07:35] Speaker 03:
adopted the second time around.

[00:07:36] Speaker 02:
Well, they didn't necessarily reject it.

[00:07:38] Speaker 02:
I think the bigger issue that we are worried about, which brought this appeal, was the understanding from the board that there is no mechanism to obtain relief because of the act itself.

[00:07:53] Speaker 02:
Even if we go back on a hostile work environment claim, if this court doesn't rule that this act is in and of itself material and adverse enough, again, we suspect that what would happen

[00:08:04] Speaker 02:
is that that would be an exercise that would end with us losing.

[00:08:09] Speaker 02:
Because the board has already decided in their opinion that this underlying act is not sufficiently severe or not sufficiently material, that it cannot form the basis of a claim.

[00:08:22] Speaker 02:
So going back on a hostile work environment claim, how can we have a hostile work environment claim if the board has already prejudged the underlying act as sufficiently

[00:08:32] Speaker 02:
immaterial and trivial in their view to not allow any sort of remedy.

[00:08:37] Speaker 02:
And our fundamental fear is that the combination of the board's action and the federal court's action in terms of the federal government's position in that case will deprive Mr. Kudlinski of any remedy for this.

[00:08:50] Speaker 02:
We also think, you know, that there is a... You said the combination with the federal court's ruling.

[00:08:57] Speaker 01:
You're talking about the Eastern District.

[00:08:59] Speaker 01:
Yes, yes, Your Honor.

[00:09:00] Speaker 01:
Where does that stand right now?

[00:09:02] Speaker 02:
Right now, we're in discovery in that case.

[00:09:04] Speaker 02:
The case survived an initial attack on the pleadings, but we assume there'll be a summary judgment motion in the art.

[00:09:10] Speaker 01:
But I thought when you said the combination of the two, I thought you were alluding to having been rejected by the court.

[00:09:19] Speaker 01:
You haven't been.

[00:09:19] Speaker 02:
No, but the court, the Eastern District is asking the same question.

[00:09:24] Speaker 02:
What is the Federal Circuit going to do?

[00:09:26] Speaker 02:
And the reason this case is fractured the way it is is because Howard arose.

[00:09:31] Speaker 02:
And again,

[00:09:33] Speaker 02:
The fundamental issue that we're trying to get to with the board is not just that there's a hostile work environment claim, but that when an action involves an attempt, a direct attack on that employee's safety and security in the workplace, that that is an act of cognizable retaliation that the board should address on that merit alone.

[00:09:55] Speaker 02:
And sending this back just for hostile work environment analysis will not address that claim.

[00:10:00] Speaker 02:
Our fundamental point is that if I install a listening device in your car, and you find it, and it has DEA numbers on it, and it was done while you were being deposed, and you find it in your car, and that agency can never decide whether the phone actually belongs to them or not, and it's traced to an employee that's involved in that process, then that is a cognizable act of retaliation.

[00:10:22] Speaker 02:
Because the fundamental precept is that it would dissuade a reasonable employee from asserting their rights.

[00:10:30] Speaker 02:
In the real world.

[00:10:34] Speaker 04:
Well, maybe they should have drafted the statute so that it didn't have the benefit of employment requirement in it.

[00:10:40] Speaker 04:
But it does have that.

[00:10:41] Speaker 02:
Well, but Judge, that was added to strengthen the act.

[00:10:44] Speaker 02:
Over the last seven years, Congress has strengthened this act six times in favor of employees.

[00:10:50] Speaker 02:
The reason that the benefit of employee was added was simply to address the Carter decision.

[00:10:55] Speaker 02:
And the fact of the matter, this court ruled long before that

[00:10:58] Speaker 02:
that a hostile work environment claim was cognizable.

[00:11:02] Speaker 02:
What the court has before it now is the separate issue is to whether a discrete act that is severe enough to dissuade a reasonable worker from asserting their rights isn't in and of itself an act of retaliation.

[00:11:14] Speaker 02:
And that issue needs to be addressed by the court, regardless of whether this is a hostile work environment.

[00:11:21] Speaker 02:
I see my make time for rebellion.

[00:11:37] Speaker 04:
Good morning.

[00:11:38] Speaker 04:
May it please the court?

[00:11:40] Speaker 04:
You agree that the government is taking inconsistent positions in the Bivens action in this case?

[00:11:46] Speaker 05:
I agree that we are taking a separate position from the Department of Justice, but we are also not bound by the Department of Justice's opinion in this matter, and we just happen to disagree.

[00:11:55] Speaker 05:
We believe that this is not something that arose in employment because it was an action designed to affect his personal life.

[00:12:02] Speaker 05:
It was designed to listen to his conversations, if true, in his personal car,

[00:12:07] Speaker 05:
outside of work.

[00:12:09] Speaker 05:
The Department of Justice happens to disagree, but I believe, as counsel stated, the district court actually rejected that notion, at least on the motion to dismiss.

[00:12:18] Speaker 05:
So the district court is also willing to entertain this as outside of the employment context or outside of the syrup.

[00:12:23] Speaker 04:
Is there an opinion from the district court on that issue?

[00:12:26] Speaker 05:
There was no, but it looks like the motion to dismiss on that issue was rejected without addressing the individual claim.

[00:12:37] Speaker 05:
We believe that we correctly dismissed, for lack of jurisdiction, his claims of discrete acts of discrimination and retaliation, but would like to request a remand because we do believe we erred in adjudicating his claim of a hostile work environment.

[00:12:53] Speaker 05:
What do you mean, erred in adjudicating?

[00:12:58] Speaker 05:
When the petitioner originally alleged his claims before the board, before the administrative judge,

[00:13:04] Speaker 05:
It appears that he was trying to allege that he was subjected to a hostile work environment because of his prior USERA appeals.

[00:13:12] Speaker 05:
Throughout his pleadings on multiple occasions, he states he's subjected to a hostile work environment either because of his USERA appeals or due to his USERA appeals.

[00:13:21] Speaker 05:
He never states anything about because of his military status.

[00:13:25] Speaker 05:
The administrative judge also adjudicated that claim and decided whether or not there was a hostile work environment

[00:13:31] Speaker 05:
because of... He didn't consider it as a retaliation claim.

[00:13:35] Speaker 05:
He considered it as a retaliation claim, the administrative judge did.

[00:13:38] Speaker 04:
But the point is that the board did not consider it as a retaliation claim.

[00:13:42] Speaker 05:
Yes, the board in the middle of the adjudication process somehow misread his petition for review and his pleadings and adjudicated it as a hostile work environment because of his military service claim and we admit now that was incorrect and we should have adjudicated it

[00:13:59] Speaker 05:
as a hostile work environment because of his prior USERRA claims as retaliation claim.

[00:14:05] Speaker 05:
We did not do so, and so we would like to adjudicate that claim again to determine whether or not he sufficiently non-frivolously alleged the existence of a hostile work environment based on his USERRA appeal claims.

[00:14:18] Speaker 05:
And what's the board's position on that?

[00:14:20] Speaker 05:
Right now, the board hasn't actually adjudicated it yet, so I cannot state either way that would be something for the board to determine first in an opinion

[00:14:28] Speaker 03:
I mean, can you imagine what obstacle there would be in Mr. Kitlinski being able to pursue that claim below?

[00:14:37] Speaker 05:
Well, the administrative judge's opinion, the initial decision, does not actually represent the opinion of the board here.

[00:14:44] Speaker 05:
But the administrative judge looked at it from a severity analysis to determine whether or not the allegations were sufficiently severe to create a hostile work environment, such as whether or not he alleged

[00:14:59] Speaker 05:
that he talked to anybody, whether there was any actual eavesdropping, how long the eavesdropping went on.

[00:15:04] Speaker 05:
And so I imagine the board on remand would analyze that determination to see if that was correct and to see whether or not his allegations sufficiently affected the terms, conditions, and privileges of his employment such that it created a hostile work environment.

[00:15:18] Speaker 03:
I guess what I'm wondering is, does the board agree that a hostile work environment theory is a legitimate basis for a retaliation claim under Sarah?

[00:15:29] Speaker 05:
I believe the council pointed this out in his brief.

[00:15:31] Speaker 05:
The board has never actually addressed whether or not a hostile work environment under the retaliation theory of USERRA actually exists.

[00:15:38] Speaker 05:
And so that would be something we need to address as well to state for the first time whether such a claim can be brought.

[00:15:44] Speaker 03:
So what I guess I'm wondering is why wouldn't it be?

[00:15:48] Speaker 05:
It certainly seems like it could be.

[00:15:50] Speaker 05:
There's nothing within the language of the statute that would prevent it.

[00:15:53] Speaker 05:
But that's still a determination for the board to make.

[00:15:56] Speaker 05:
And until the board makes that position,

[00:15:58] Speaker 05:
where it makes that determination, I can't first tell you without making the decision.

[00:16:02] Speaker 05:
Should we decide that question before we remand?

[00:16:05] Speaker 05:
Well, I don't believe, with all due respect, Your Honor, that would be within the Court's authority because the Board has not first made a determination on that point.

[00:16:14] Speaker 04:
I think it's within our authority when you request a remand to determine whether the remand would serve any purpose.

[00:16:22] Speaker 05:
You are correct, Your Honor, but I believe the board first needs to make a determination on whether or not such a claim can exist.

[00:16:29] Speaker 04:
We don't owe them any Chevron deference on that, do we?

[00:16:34] Speaker 05:
Since the board does adjudicate the claims and these claims are brought before the board, I believe there may need to be Chevron deference there.

[00:16:40] Speaker 05:
That is certainly something I'm happy to address further in the supplemental briefing if you would like.

[00:16:44] Speaker 05:
But I believe because it's something within the purview of the board, it would be something the board is owed deference to.

[00:16:51] Speaker 01:
When you say that the board needs to decide this first, are you suggesting there's a chennery type problem here with our deciding that question, the question that Judge Dyke referred to?

[00:17:04] Speaker 05:
I believe the problem would be within the scope of this court's review, because the nature of this court's review is to determine decisions of the board.

[00:17:12] Speaker 05:
And officially, the board has made no decision on this claim.

[00:17:15] Speaker 01:
It's a purely legal question, though, this question.

[00:17:17] Speaker 01:
So it wouldn't be as if we were adopting

[00:17:22] Speaker 01:
fact-based position that the board had not yet ruled on.

[00:17:28] Speaker 05:
Yes, Your Honor.

[00:17:28] Speaker 05:
It is a legal question, but I don't think it's a legal question that's actually been decided before the board and therefore may not necessarily be subject to judicial review yet.

[00:17:39] Speaker 05:
This court's judicial review is over decisions the board has made and the board has not made a decision on this claim.

[00:17:46] Speaker 04:
If I recall correctly, we have a case that says if you're going to remand something, you can decide

[00:17:52] Speaker 04:
whether there's a reason to remand or not and make a legal determination of that issue.

[00:17:58] Speaker 05:
I believe you are correct, Your Honor, but I don't think, I mean, I think there's also a case law that says as long as we have a good reason for a request, and we certainly believe we do because admittedly we just made a mistake and we would like to give the petitioner a fair chance to have all of his claims properly adjudicated.

[00:18:18] Speaker 03:
I guess at this point we lack any

[00:18:20] Speaker 03:
real meaningful briefing on this question from the parties, right?

[00:18:24] Speaker 05:
Yes, I think so, Your Honor.

[00:18:29] Speaker 05:
But moving on to the claims of discrete acts of discrimination, the board, since we are here, will say that we believe we correctly determined that he did not non-privilegedly allege a denial of the benefit of employment under you, Sarah, because as we stated, the benefit of employment needs to be won

[00:18:50] Speaker 05:
that flows to him as a result of his employment with the DEA.

[00:18:56] Speaker 05:
His right to be free from surveillance from the government comes to him from the Fourth Amendment by virtue of just him being present in the United States and does not come from him being employed by the DEA.

[00:19:08] Speaker 05:
So the violation of his right to be free from surveillance is not a denial of the benefit of employment under USERA.

[00:19:17] Speaker 05:
And so we believe we correctly decided that.

[00:19:20] Speaker 03:
So then how would he or how, in your view, should he pursue that claim?

[00:19:25] Speaker 03:
If it's not through what you believe to be this very narrow conception for Sarah, then where does he go?

[00:19:32] Speaker 05:
That I can't say.

[00:19:33] Speaker 05:
It did go to the Office of Professional Responsibility.

[00:19:36] Speaker 05:
A Bivens action.

[00:19:38] Speaker 05:
Possibly.

[00:19:38] Speaker 05:
And he did bring one of those.

[00:19:39] Speaker 05:
And it is pending right now.

[00:19:41] Speaker 05:
He also brought it to the Office of Professional Responsibility in his office.

[00:19:44] Speaker 05:
Or he and his wife did.

[00:19:46] Speaker 05:
And they investigated that as well.

[00:19:47] Speaker 05:
And I understand that's part of the nature of this claim.

[00:19:50] Speaker 05:
When it came to wrongdoing he reported it to authorities and they investigated it We don't know where he should go we take no position there We just say he should not take it to the board you happen to know the outcome of that investigation um I Don't know the final outcome.

[00:20:09] Speaker 05:
I don't know if there was a final outcome I believe he may have eventually been removed as a result of

[00:20:18] Speaker 05:
He refused to participate in that investigation, but that's not in the record here.

[00:20:22] Speaker 05:
And so I don't think that should be considered fairly to him.

[00:20:26] Speaker 05:
But addressing his point, though, that there is no mechanism to obtain relief, the board, again, I think, would just disagree.

[00:20:32] Speaker 05:
And that's the nature of the House of Work environment claim.

[00:20:35] Speaker 05:
Every single, or just about every single claim, he cited that addresses monitoring as a possible action, such as Montoya and Black and Cola Pietro EEOC cases, district court cases, none of which

[00:20:47] Speaker 05:
we believe are binding on us, but they all address this as part of a possible hostile work environment.

[00:20:53] Speaker 05:
It's not necessarily severe enough to bring as an individual discrete action, but it certainly is possible.

[00:20:59] Speaker 05:
And it would be for the board to decide whether or not such a claim could be brought as part of a hostile work environment.

[00:21:04] Speaker 04:
What do you mean it's not severe enough to be brought as an individual action?

[00:21:08] Speaker 04:
That sounds like a different test than the one you were

[00:21:12] Speaker 04:
arguing for earlier, where you said it's not a benefit of employment, so there's no claim at all.

[00:21:17] Speaker 04:
And now you're suggesting that there is a claim if the action is severe.

[00:21:22] Speaker 05:
Well, what I meant by that, and I apologize, Your Honor, is under the retaliation provision, it does not restrict claims to denial as a benefit of employment.

[00:21:30] Speaker 05:
It simply bars discrimination in employment.

[00:21:33] Speaker 05:
And so it would seem that if this claim existed in any way at all, or was cognizable

[00:21:38] Speaker 05:
it would be part of a discrimination in employment claim under 4311B with a reprisal provision and under there... I'm sorry, I'm not understanding what you're saying.

[00:21:48] Speaker 04:
He's saying, okay, forget about the hostile work environment claim, that the retaliatory surveillance of him would be a violation of USERRA.

[00:22:02] Speaker 04:
Is there such a claim under some circumstances or is there never such a claim because the right to be free

[00:22:08] Speaker 04:
from surveillance is not a benefit of employment?

[00:22:11] Speaker 05:
Well, Your Honor, the answer to that question lies in the two separate sections of USERA.

[00:22:16] Speaker 05:
USERA 4311A bars discrimination or bars denials of benefits of employment based on military service.

[00:22:24] Speaker 05:
And that's effectively the discrimination based on military service provision.

[00:22:27] Speaker 05:
4311B bars discrimination in employment because of participation in protected USERA activities, effectively the retaliation provision.

[00:22:38] Speaker 05:
So what we are stating is that, and what the administrative judge initially stated is, if this claim is anything, it is part of discrimination in employment.

[00:22:48] Speaker 04:
Yeah, but try to answer my question.

[00:22:50] Speaker 04:
Are you saying there is no such thing apart from the hostile work environment claim?

[00:22:55] Speaker 04:
There is no such thing as a claim based on surveillance of an employee that does not take place in the workplace.

[00:23:04] Speaker 05:
What we're saying is that there is no such thing as a claim of an individual discrete act of discrimination or retaliation.

[00:23:12] Speaker 05:
The surveillance would not be materially adverse as an action by itself.

[00:23:18] Speaker 05:
I take that back.

[00:23:18] Speaker 05:
I'm sorry.

[00:23:19] Speaker 05:
Surveillance outside of employment would not be an individual act.

[00:23:24] Speaker 04:
But you use materially adverse, and then you'd be confused.

[00:23:28] Speaker 04:
Because that makes it sound as though if it were materially adverse, there would be a claim.

[00:23:32] Speaker 05:
If it were materially adverse within

[00:23:34] Speaker 05:
employment, it could be a claim.

[00:23:37] Speaker 01:
Within employment, you mean on the grounds of the workplace?

[00:23:42] Speaker 05:
Or in some way affecting his employment, whether typically most cases that are addressed so far address surveillance inside the workplace, instead that takes place inside the workplace.

[00:23:52] Speaker 05:
We are saying he's being surveilled in his personal life to affect his personal life and that is not in employment.

[00:23:58] Speaker 01:
So that's not discrimination in employment?

[00:24:01] Speaker 05:
Yes.

[00:24:02] Speaker 05:
Yes.

[00:24:02] Speaker 05:
For purposes of 4311B.

[00:24:04] Speaker 05:
Yes.

[00:24:06] Speaker 04:
And it doesn't make any difference how material it is.

[00:24:09] Speaker 05:
Under the Burlington Northern Standard, which I don't believe has ever actually been applied to USERRA, it's certainly possible that materially adverse action that could dissuade somebody from filing USERRA appeal in employment could be a cognitive claim of retaliation under 4311B.

[00:24:28] Speaker 05:
But again, no one's ever applied it.

[00:24:30] Speaker 04:
completely confused.

[00:24:32] Speaker 04:
On the one hand, you seem to say there's no claim based on the discrete act, that if you don't have a hostile work environment claim, there's no claim.

[00:24:41] Speaker 04:
But then you say there's no claim because it's not material, it's not severe enough.

[00:24:47] Speaker 04:
Which is it?

[00:24:48] Speaker 05:
If it was severe enough, and I apologize for mixing up the standards for you, Your Honor, if it were sufficiently severe, the severity analysis would apply to possibly a hostile work environment analysis, as the administrative judge did.

[00:25:00] Speaker 05:
The materially adverse standard comes from Burlington Northern and could be used to support a claim of an individually discrete act of retaliation, provided that it fits the definition of unemployment.

[00:25:16] Speaker 05:
What we're stating is that it does not fit the definition of unemployment.

[00:25:20] Speaker 03:
I had another question about the board's decision.

[00:25:23] Speaker 03:
It seemed like for one claim, one part of the discrimination claim, the board

[00:25:30] Speaker 03:
denied it because it concluded that Mr. Kitlinski didn't allege that the alleged act of discrimination was connected to the fact that, to his military status.

[00:25:46] Speaker 03:
But then for other claims, the board didn't rely on that theory.

[00:25:51] Speaker 03:
And I guess what I was wondering is, is it the board's conclusion that for some claims, Mr. Kitlinski alleged

[00:25:59] Speaker 03:
the adverse acts were due to his military status, whereas other things were not due to his military status?

[00:26:06] Speaker 05:
In one of his very last pleadings before the administrative judge, before the jurisdictional initial decision was issued, he made one reference to discrimination, which had not existed in any of his prior pleadings.

[00:26:19] Speaker 05:
And he didn't state that he was subjected to a house of work environment.

[00:26:22] Speaker 05:
He just stated he's subjected to discrimination

[00:26:26] Speaker 05:
and retaliation due to his filing, and retaliatory hostile work environment due to his filing userapeel.

[00:26:31] Speaker 05:
Because he referenced discrimination at the very end, the board viewed that as a general claim that he was subjected to, or the placement of the Blackberry was discrimination based on his military service.

[00:26:43] Speaker 05:
But because the phrasing he used about the hostile work environment was, I was subjected to a hostile work environment due to my prior userapeels, it also just only used, it applied

[00:26:55] Speaker 05:
the administrative judge primarily looked at it as a retaliatory, hostile work environment claim.

[00:27:01] Speaker 05:
But the board is being more lenient toward him and giving him at least a general discrimination claim, or a general discrimination claim.

[00:27:09] Speaker 05:
But as we stated, we also believe we did that in error for the retaliatory, discriminatory, hostile work environment claim.

[00:27:18] Speaker 05:
So this court has no further questions, I believe, at this time.

[00:27:21] Speaker 05:
Thank you.

[00:27:26] Speaker 02:
Mr. Burns, you've got a little over two minutes.

[00:27:28] Speaker 02:
I'll be brief.

[00:27:31] Speaker 02:
We disagree with some of the facts, whether the Kudlinski's reported.

[00:27:35] Speaker 02:
You asked at the outset, Your Honor, what relief we would want.

[00:27:39] Speaker 02:
One of the problems with this case is that the board decided all of this and the administrative law judge decided all this before any discovery or hearing was done.

[00:27:49] Speaker 02:
It would help to understand retaliation.

[00:27:51] Speaker 02:
It would help to understand discrimination, both of which Burlington Northern have said are factually intense issues, if under Kirkendall we had our hearing.

[00:28:00] Speaker 02:
So if you're going to remand this, one of the issues that could be remanded is the idea that can't we get the opportunity to establish that this was a material adverse action directed towards him in his employee status.

[00:28:13] Speaker 02:
I do not agree that there is a distinction as to where the employer, the employer, because it's

[00:28:19] Speaker 02:
The employer who's doing this places the surveillance device, whether it's in here at DEA headquarters or whether it went and installed it in his house.

[00:28:28] Speaker 02:
It is the intent of the employer that you look at for material adverse actions.

[00:28:33] Speaker 02:
Discrimination and usera discrimination is fundamentally about the intent of the employer.

[00:28:39] Speaker 02:
The reason Congress passed the statute and made it broadly remedial was to get at the intent of employers who were discriminating and retaliating.

[00:28:47] Speaker 02:
I think it is one of the problems with the way the government is arguing this case is we're getting lost.

[00:28:54] Speaker 02:
And the reason we get lost is because the MSPB is arcanely applying technical concepts of law before it ever adjudicates a factual predicate.

[00:29:04] Speaker 02:
Discrimination has to be done through a factually intensive mechanism.

[00:29:08] Speaker 02:
Even Cruz, the case they rely upon was summary judgment.

[00:29:11] Speaker 02:
There were facts that were presented.

[00:29:13] Speaker 02:
There were people that were deposed.

[00:29:15] Speaker 02:
This is in effect a summary judgment before we have any factual basis whatsoever to decide the record.

[00:29:21] Speaker 02:
The reason we're struggling with ideas of whether this is retaliation or not is because we haven't had any proof.

[00:29:27] Speaker 02:
And so lacking proof, how can we prove up things?

[00:29:30] Speaker 02:
We're debating with the MSPB their conception of a factual record that we disagree with.

[00:29:36] Speaker 02:
And so when they say the Kudlinski's went to OPR, we believe that's untrue and we are litigating that fact.

[00:29:44] Speaker 02:
So the MSPB both decides the law, like the ALJ, and it decides the facts.

[00:29:51] Speaker 02:
The ALJ had all sorts of factual issues in his case that were nowhere proven by any record because we never got a hearing.

[00:29:58] Speaker 02:
So if we are going to remand this case, Your Honors, it should be remanded on all of the issues so that we get the opportunity to present our case.

[00:30:06] Speaker 02:
That's what Mr. Kylinski wants, and that's what he needs.

[00:30:09] Speaker 02:
Thank you.