Refusal to Participate in Investigation Undercut Claims

By W. Kevin Smith and Jacob W. Crouse July 13, 2021
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​The Drug Enforcement Administration (DEA) was entitled to summary judgment on a husband and wife's wrongful termination and retaliation claims, as the plaintiffs offered no evidence that the DEA terminated their employment for any reason other than their failure to cooperate with an investigation, ruled the 4th U.S. Circuit Court of Appeals.

The plaintiffs both were employed by the DEA but stationed at distant locations. During the course of the plaintiffs' employment with the DEA, the husband made multiple requests to be transferred to a position in the same area as his wife. Those transfer requests were repeatedly denied, and other candidates were hired to fill the positions.

The husband later took a leave of absence from the DEA to serve on active duty with the U.S. Coast Guard. Shortly after he was called to active duty, he initiated various administrative proceedings challenging the DEA's adverse hiring decisions and denial of his transfer requests, including complaints alleging violations of Title VII of the Civil Rights Act of 1964 and the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Prior to participating in a deposition arising out of one of the husband's complaints, the plaintiffs alleged that a BlackBerry device was placed by the DEA on the wife's car in order to track the whereabouts of the plaintiffs or record their conversations. As a result of a complaint filed by the husband, an investigation was opened into that allegation by the Office of Professional Responsibility (OPR), which investigates allegations of misconduct by DEA employees.

The OPR directed both plaintiffs to appear for interviews regarding the BlackBerry incident. The wife submitted to an interview but declined to answer a number of the investigators' questions. The husband declined to attend his scheduled OPR interview. Both plaintiffs were fired based on their conduct during the OPR investigation.

The plaintiffs filed suit in district court. The husband asserted discrimination and retaliation claims for the denial of his transfer requests and adverse hiring decisions by the DEA. Both plaintiffs claimed wrongful termination under USERRA and Title VII, and various claims related to the BlackBerry incident. The district court granted summary judgment in favor of the DEA but did not address the wrongful termination claims.

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The plaintiffs appealed the decision of the district court to the 4th Circuit. In light of the district court's failure to rule on the plaintiffs' wrongful termination claims, the 4th Circuit sent the case back to the district court to address those claims. The district court granted summary judgment in favor of the DEA on all claims.

On appeal, the 4th Circuit concluded that the plaintiffs offered no evidence that the husband's military service or his prior USERRA-protected activity was a motivating factor in his termination. Rather, his employment was terminated because he refused to attend the OPR interview.

The 4th Circuit further concluded that the only reason behind the DEA's decision to terminate the wife's employment was her conduct during the OPR investigation and no reasonable fact-finder could conclude that any USERRA-protected activity was a motivating factor in her termination.

The court also determined that no reasonable fact-finder could conclude that the DEA terminated either plaintiff's employment in retaliation for engaging in protected activity.

Kitlinski v. United States Department of Justice, 4th Cir., No. 19-1621 (April 8, 2021), petition for rehearing and rehearing en banc denied (June 4, 2021).

Professional Pointer: Employees are obligated to cooperate in employer investigations into workplace incidents of unlawful discrimination or harassment. To address such incidents, employers should establish and consistently follow a protocol for the investigation of employee claims of discrimination, harassment, or other alleged violations of applicable employment and labor laws. Employers should also establish policies clearly outlining expectations for employee participation in investigations.

W. Kevin Smith and Jacob W. Crouse are attorneys with Smith and Smith Attorneys, the Worklaw® Network member firm in Louisville, Ky.

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