August 24, 2018

FH+H Lawyers File Extensive Brief on Egregious Behavior of Federal Agency and Court Procedural Errors

In a case involving two highly touted Drug Enforcement Agency (DEA) employees who ran afoul of senior management, Partners Kevin Byrnes, Jack White, and Associate Rachel Leahey filed an extensive brief before the U.S. Court of Appeals for the Fourth Circuit arguing that the district court should not have dismissed the case.

Lisa Kitlinski, a DEA chemist, was promoted to a senior leadership position within the agency that relocated her to Washington, DC. Lisa’s husband Darek, who is also a DEA employee, then sought to transfer to her duty station.

As a DEA Special Agent, Darek was covered by a policy that keeps the common household when both spouses are DEA employees and one of the spouse is promoted or assigned to a new location. An employee applies for a transfer and such transfer is generally granted.

Darek’s transfer was, however, not approved. Darek filed a series of administrative claims against the DEA, arguing that the refusal to transfer him violated both agency policy and was gender discrimination – he noted that all females who had applied for such transfers in the previous decade had been granted them.

The Equal Employment Opportunity Commission (EEOC) agreed that the agency’s transfer refusal was an act of discrimination.

When Darek was recalled to active duty, he applied for transfers based on his active duty service. Those also were denied by the DEA, in addition to promotional and other transfer opportunities, all of which followed Darek’s administrative complaint filings.

In his administrative cases, Darek was deposed at DEA headquarters. Following one of the depositions, Darek discovered a BlackBerry cellphone, labeled with DEA identification numbers, inside his vehicle at a location typically used by the agency to conduct surveillance.

Darek reported the discovery of the phone to the FBI, as well as the inspector general’s office for the Department of Justice. He and his wife feared that the DEA had installed the phone to conduct targeted surveillance of them.

Unknown to Darek, a senior investigator in the inspector general’s office who formerly worked with the DEA violated Darek’s confidentiality rights under the Inspector General Act and notified the DEA of Darek’s complaint.

Upon being notified, the DEA claimed it had the right to investigate its own misconduct and to speak to the Kitlinskis outside the presence of counsel and on the matters that the Kitlinskis had raised against the DEA. DEA investigators demanded that Darek and Lisa provide statements to investigators, although the Kitlinskis had filed claims against the Agency before the MSPB.

Ignoring any right to counsel, DEA agents interrogated Lisa on the allegations she had raised against the Agency. They also asked her to disclose how the phone had been discovered, and to divulge what conversations Lisa had had with her husband and her attorney.

Lisa cited legal privileges in her interview and declined to answer questions. The agency then fired her for noncooperation.

FH+H attorneys protested the violation of the client’s right to counsel and questioned why the DEA was not conflicted out from investigating itself.

At this time, Darek was on active duty with the Coast Guard. Two agents of the DEA went to his military installation, signed in as Coast Guard personnel, confronted Darek, and demanded he leave his post and go to the DEA for an interview.

Lacking authorization from a military commander, Darek remained at his post and did not appear for the interview.

Upon Darek’s return to the DEA, the agency did not try to interview him again. Instead, the DEA fired him as well for noncooperation in its investigation.

The DEA never attempted to determine who placed the phone in the Kitlinski vehicle. Instead, the agency engaged in prolonged harassment and appraisal, which ended with both Kitlinskis being fired.

The Kitlinskis filed in a district court alleging a series of violations ranging from constitutional claims to wrongful termination and equal employment opportunity retaliation and reprisal. The Kitlinskis also raised claims under the Uniform Services Employment and Reemployment Rights Act (USERRA) for retaliation and reprisal.

The district court dismissed the claims under summary judgement but never discussed or referenced the termination claim, nor did it address USERRA retaliation or equal employment opportunity retaliation as it related to the dismissals.

The matter is now before the U.S. Court of Appeals for the Fourth Circuit.

In a comprehensive brief, FH+H lawyers Mr. Byrnes, Mr. White, and Ms. Leahey point out not only the procedural errors of the district court, but also the prolonged egregious and shocking behavior of a federal law enforcement agency against its own employees whose only crime was to assert their rights.

View a PDF version of the brief here.



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