4th Circuit: Failure to cooperate in investigation isn't protected activity

After two former Drug Enforcement Administration (DEA) employees filed wrongful termination claims, the U.S. 4th Circuit Court of Appeals (which covers North Carolina, South Carolina, and West Virginia employers) recently found their failure to cooperate with the investigation initiated at their own request wasn't protected activity. Further, their discharge wasn't unlawful under either Title VII of the Civil Rights Act of 1964 or the Uniformed Services Employment and Reemployment Rights Act (USERRA). The court's opinion highlights the fact that even if employees have engaged in protected activity, you still have the right to legitimately discipline them for unprotected misconduct.

Facts

Lisa Kitlinski and her husband, Darek, began working for the DEA in 1997 and 1998, respectively. In 2011, the agency promoted Lisa to a position at its headquarters in Arlington, Virginia. Afterward, Darek also sought to transfer within the DEA to the D.C. area. He submitted multiple transfer requests and applied for vacant positions, but the agency denied the requests and selected other candidates for the vacant jobs.

Meanwhile, Darek also began serving on active duty with the U.S. Coast Guard in D.C. and took a leave of absence from the DEA. After he was called to active duty, he filed equal employment opportunity (EEO) complaints alleging violations of Title VII and USERRA (a federal law protecting the employment rights of individuals who leave their jobs because of military service).