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Siuzdak v. Lynch

United States District Court, D. Connecticut

March 7, 2016

KURT SIUZDAK, Plaintiff,
v.
HONORABLE LORETTA E. LYNCH, in her official capacity as the Attorney General of the United States, [1]Defendant.

RULING ON MOTION TO DISMISS

Victor A. Bolden United States District Judge.

Plaintiff, Kurt Siuzdak, brings a complaint (the “Complaint”) [Doc. No. 1] alleging unlawful retaliation by his employer, the Federal Bureau of Investigation (“FBI”). Defendant, then the Honorable Eric H. Holder, Jr., in his official capacity as the Attorney General of the United States, moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 19. For the reasons that follow, the motion is DENIED.

I. BACKGROUND[2]

Kurt Siuzdak is a male special agent with the Federal Bureau of Investigation (“FBI”). Prior to joining the FBI in 1997, Mr. Siuzdak allegedly suffered a knee injury while serving in the United States military, which resulted in his walking with a perceptible limp. The “Veterans Administration” allegedly certified him as having a 30% disability rating. In addition, Mr. Siuzdak allegedly suffered a lung injury as a result of his presence at the World Trade Center during the September 11, 2001 terrorist attack.

In June 2009, Mr. Siuzdak allegedly was assigned to the New London Resident Agency Office of the New Haven Field Office as a special agent. He was assigned to Squad 4, which investigated criminal and violent crime matters. At the time, Kimberly Mertz allegedly was the special agent in charge, which is the highest ranking special agent in an FBI field office. Thereafter, David Gelios and Rhonda Glover were assigned to the New Haven Field Office as assistant special agents in charge, which is the position directly under special agent in charge.

In or around February 2012, Mr. Siuzdak applied for the position of chief division counsel in the New Haven Field Office. Ms. Mertz allegedly eliminated the job posting before it could be filled. In May 2012, Mr. Siuzdak allegedly was asked to serve as acting supervisor of Squad 4 for two days, but Ms. Mertz allegedly removed him from the position within two hours of his assuming the position. In October 2012, Mr. Siuzdak allegedly was again asked to work as acting supervisor of Squad 4. During his time as acting supervisor, a special agent under his charge submitted an operations plan to arrest a low level drug dealer. Ex. A to Mot. to Dismiss, EEO Compl. dated Dec. 11, 2012 [Doc. No. 19-3], at 2.[3] Ms. Mertz allegedly questioned Mr. Siuzdak on several aspects of the proposed operations plan, requested multiple revisions of the plan, and ultimately changed the plan and placed another agent in charge of the arrest. Id. at 2-4. Mr. Siuzdak alleges that Ms. Mertz was disrespectful and undermined his supervisory authority. Id.

Mr. Siuzdak allegedly notified Supervisory Special Agent Todd Kalish on November 4, 2012, that he would be filing an Equal Employment Opportunity (“EEO”) complaint against Ms. Mertz. On that same day, he received a notification of an eighteen-month promotion from GS- 13 special agent to GS-14 supervisory special agent in the Inspection Division, Internal Investigation Section at FBI Headquarters. Mr. Siuzdak initiated contact with the EEO Office on November 15, 2012, alleging that he had been the subject of discrimination based on sex, age, and physical disability, both when he was not selected for the chief division counsel position and when he was removed from being in charge of the October arrest, and he filed a formal EEO complaint on December 11, 2012. Doc. No. 19-3.

Mr. Siuzdak assumed his new, temporary position in Washington, D.C., on or about December 17, 2012. However, he allegedly had agreed to continue working on three ongoing investigations in Connecticut that were scheduled for trial in mid-2013. During the period of his promotion, he allegedly was entitled to monthly weekend return trips to Connecticut, which were paid for by FBI Headquarters. He allegedly arranged to assist with the three Connecticut cases on these weekend trips and on weeknights, so as not to disrupt his work at the Inspection Division.

In or around April 2013, Ms. Mertz allegedly initiated an investigation into fuel expenses being charged to Mr. Siuzdak’s government credit card and his use of government vehicles. She also allegedly removed him as the official case agent from the three Connecticut cases on or about May 4, 2013. Mr. Siuzdak sent an e-mail to Ms. Mertz on May 9, 2013, informing her that he had reported her investigation to the Inspection Division and would be filing a complaint with the Office of Professional Responsibility (“OPR”). On May 10, 2013, Ms. Mertz replied that she was required to file an OPR complaint against Mr. Siuzdak with the Inspection Division. On May 15, 2013, Mr. Siuzdak filed an OPR complaint against Ms. Mertz and initiated contact with an EEO counselor, alleging that the investigation was undertaken in retaliation for his December 2012 EEO complaint.

Mr. Siuzdak alleges that, as a result of Ms. Mertz’s actions, the FBI removed him from his position within the Inspection Division and locked him out of his office. He was moved to an open bullpen area in FBI Headquarters, where he remained for several weeks while assigned no work, which allegedly made it apparent to his colleagues that he was suspected of serious wrongdoing.

In June and July 2013, the New Haven Field Office and the United States Attorney’s Office allegedly requested that Mr. Siuzdak travel to Connecticut to assist with preparation for one trial and to testify at another trial. Allegedly because of his concern about retaliation from Ms. Mertz, Mr. Siuzdak would not travel without approval from both the Inspection Division and the New Haven Field Office, which he received. He also requested that the New Haven Field Office provide him with a government vehicle to travel to court. Acting Assistant Special Agent in Charge Dan Lyons allegedly authorized the use of a government vehicle, but Ms. Mertz countermanded the approval and required that Mr. Siuzdak provide his own transportation.

In July 2013, the assistant director of the Inspection Division allegedly informed Mr. Siuzdak that Ms. Mertz’s complaint was determined to be “unsubstantiated” by the OPR. On July 25, 2013, the FBI Office of EEO Affairs wrote Mr. Siuzdak a letter informing him that it was accepting his formal complaint, filed on June 13, 2013, for investigation. See Exs. F, H, I to Mot. to Dismiss [Doc. Nos. 19-8, 19-10, 19-11]. After completion of the investigation in early 2014, Mr. Siuzdak elected to have a hearing before an administrative judge of the Equal Employment Opportunity Commission. Ex. J to Mot. to Dismiss [Doc. No. 19-12]. An administrative judge had not yet been assigned when Mr. Siuzdak initiated this litigation.

On or about September 7, 2013, Ms. Mertz allegedly was promoted to deputy assistant director and transferred to FBI Headquarters, while Patricia Ferrick replaced her as special agent in charge of the New Haven Field Office. Beginning in or around November 2013, Mr. Siuzdak allegedly applied for several supervisory positions, but was not selected for any of them. On July 11, 2014, he thus allegedly reverted from GS-14 to GS-13 and returned to the New Haven Field Office in a non-supervisory status.

Ms. Ferrick allegedly then removed him from the New London Resident Agency and transferred him to the main New Haven Field Office headquarters. She allegedly also removed him from the Criminal Division and assigned him to the Counterterrorism Division. Ms. Ferrick allegedly gave all special agents who had been in supervisory positions their choice of assignments, except Mr. Siuzdak. Ms. Ferrick ...


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