UNIVERSITY PARK, Pa. – On November 1, 2021, the Penn State Law in University Park Civil Rights Appellate Clinic filed a petition for a writ of certiorari with the Supreme Court of the United States in a case that seeks to clarify the rights afforded to servicemembers under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The formal docketing was delayed until the Court granted the Motion to Proceed as a Veteran, which the Court granted on December 6, 2021, and then formally docketed the case and requested a response from the Department of Justice by January 5, 2022.
The petition specifically asks that the Supreme Court clarify what is required under USERRA for employment discrimination victims to present a prima facie case that military service was a “motivating factor” in an adverse employment action. The petition also asks the Court to affirm the right of public employees challenging employment discrimination claims against their federal employer to have their lawyer present in an interview with said employer, when the lawyer is already retained, and adverse parties are on notice of the attorney-client relationship. Though the issues were complex, students were engaged and invested in the cause from start to finish. Clinic students involved on the case were Abhiskek Chauhan, Ashleigh Herrin, Gabrielle Tock, Julia Gentile, Meghan McGovern, Micaela Hyams, Nick Martiniano, and Sidnee McDonald.
“It was rewarding to work with an amazing group of individuals and on an issue that sits close to home,” said McDonald. “I have two sisters, uncles, cousins, and a grandfather who are veterans and an aunt and niece currently serving. Coming from a military family, it is nice to do work that may have a positive impact on their lives.”
The petition arises from the complex case of Darek and Lisa Kitlinski, a married couple with a combined fifty-three years working in public service for the federal government and armed forces. Darek served eleven years in the Air Force Reserves and another twenty years in the United States Coast Guard Reserves. Additionally, both Darek and Lisa also worked for the Drug Enforcement Administration (DEA) for significant portions of their respective careers.
In July 2011, Darek began active-duty service for the U.S. Coast Guard in Washington D.C., taking USERRA-protected leave from his work at the DEA. While on leave, Darek was subject to many adverse employment decisions taken by the DEA, and consequently filed several discrimination complaints. His complaints resulted in internal investigation and depositions, during which the DEA deemed the Kitlinskis to be noncompliant with internal directives and procedures because they would not answer sensitive questions without their lawyer present. At the time his complaints were investigated, Darek had worked sixteen years and Lisa had worked nineteen years at the DEA. Despite their decades of public service, Darek and Lisa were terminated for alleged “noncompliance” with investigations into the DEA’s own wrongdoing.
After years of litigation, the Fourth Circuit Court of Appeals ultimately held for the DEA on summary judgment, even though evidence suggested that the DEA based its termination decision, in part, on Darek’s Coast Guard service obligations. Moreover, even though the DEA engaged in dubious investigation techniques – including planting a possible tracking device on Darek’s vehicle and denying the Kitlinskis’ lawyer from attending interviews – the Court of Appeals did not find that the Kitlinskis’ due process rights were violated.
After examining the facts of the case, the Clinic stepped forward to help the Kitlinskis review their cases’ extensive records and appeal the matter to the Supreme Court of the United States. First, under USERRA, the Clinic observed that there is a significant conflict among both state high courts and federal appellate courts regarding exactly what an employee must show when they file a discrimination claim based on their military service. To ensure servicemembers have a smooth transition back into civilian employment and make military service a viable choice for more Americans, USERRA prohibits public employers from considering a servicemembers’ status or obligations as a military member as a “motivating factor" for any adverse employment decision. USERRA decisions across the country have interpreted USERRA’s “motivating factor” standard in different ways, and not always in accordance with the plain language of the statute. Accordingly, the Clinic’s petition asks the Court to clarify the standard for determining whether military service or obligation was a motivating factor for an adverse employment decision.
Reflecting on the tactics used by the DEA to investigate the Kitlinskis’ cases, the Clinic also asks that the Court clarify the bounds of a federal employee’s right to retained counsel when that employee has pending civil litigation against their employer. Although a civil litigant’s right to counsel in civil actions is protected under the Fifth Amendment of the Constitution, during out-of-court, informal proceedings there are no guarantees that a person be able to confer with their lawyer prior to decision-making. In this case, that lack of protection caused Darek and Lisa to be pressured to interview with internal DEA investigators without the presence of their already retained lawyer. Without support from their lawyer, Darek and Lisa could not make informed decisions about whether privileged information was being solicited and therefore their right to attorney client privilege and general right to access counsel were sabotaged.
As the Clinic’s semester draws to a close, the student cohort expressed pride in their collaboration and reflected on lessons learned.
“I have worked on civil rights cases in India, but getting to work on a civil rights case before the United States Supreme Court was a great learning experience for me,” said Chauhan. “I would apply all the knowledge that I have gained in the Civil Rights Appellate Clinic under the guidance of Professor Michael Foreman, to help the deprived section of the society in India to get justice.”
“Working on this Supreme Court petition was the most rewarding experience of my law school career,” said Martiniano. “My experience working with the Civil Rights Appellate Clinic on this petition was discussed in every interview for post-graduate employment, and the experience ultimately helped me secure my dream job.”
“It has been incredibly motivating to work alongside driven and talented team members. My experience in the Civil Rights Appellate Clinic has taught me to understand and apply emerging areas of the law while effectively advocating for clients,” said McGovern.
The Civil Rights Appellate Clinic, one of nine legal clinics available to Penn State Law in University Park students, provides intensive training in appellate advocacy by involving students in noncriminal civil rights cases before the state appellate courts, federal courts of appeal, and the Supreme Court of the United States. Students conduct research, draft briefs, assist in case selection, develop substantive legal positions, and plan appellate strategy.