United States District Court, D. Connecticut
RULING AND ORDER ON MOTION FOR SUMMARY
A. BOLDEN, UNITED STATES DISTRICT JUDGE
Siuzdak, (“Plaintiff”) has sued the Honorable
Jefferson B. Sessions III (“Defendant”) under
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e, et seq.; the
Civil Rights Act of 1991, 42 U.S.C. § 1981a; the Age
Discrimination In Employment Act (“ADEA”), 29
U.S.C. § 621 et seq.; and the Rehabilitation
Act, 29 U.S.C. §§ 791 and 794 alleging that that
the Federal Bureau of Investigation (“FBI”)
retaliated against him for engaging in protected activity.
ECF No. 42.
now moves for summary judgment under Federal Rule of Civil
Procedure 56. ECF No. 62.
following reasons, the motion for summary judgment is
FACTUAL ALLEGATIONS AND PROCEDURAL
Siuzdak is a military veteran who has suffered an enduring
injury to his knee and back. Klopfer Statement at 2,
Def.'s SMF, Ex. AA, ECF No. 62-32.
Siuzdak began his employment with the FBI in 1997 in the New
York Field Office. Pl.'s SMF ¶ 1. In 2007, Mr.
Siuzdak served as a GS-13 special agent in New York.
Id. ¶ 2. Mr. Siuzdak accepted a promotion in
Iraq as an Assistant Legal Attaché, a GS-14 position.
Siuzdak Tr. at 18:7-8, Def.'s SMF, ECF No. 62-39. Nearing
the conclusion of Mr. Siuzdak's assignment in Iraq, he
applied for other GS-14 positions, primarily in the legal
attaché program, but was not selected for any of those
positions. Def.'s SMF ¶ 3. When the assignment ended
in 2009, he was assigned to the FBI's New Haven Field
Office (“NHO”) and was assigned to the Violent
Crimes and Major Offenders Squad, Squad 4, New London
Resident Agency. Id. ¶ 4. Sept. 6, 2016, Office
of Attorney Recruitment and Management Final Determination
(Sept. 6, 2016 OARM Determination) at 1, Pl.'s SMF, Ex.
1, ECF No. 68-1.
Denied Positions Between 2009 and 2012
2009, Mr. Siuzdak applied for four overseas positions as
either a GS-15 legal attaché or a GS-14 assistant
legal attaché, but was not selected for any of those
positions. Holland Aff ¶ 7, Def.'s SMF, Ex., ECF No.
62-4. In 2010, Mr. Siuzdak applied for fifteen positions as a
GS-15 legal attaché, a GS-14 assistant legal
attaché, a GS-15 Unit Chief, or a GS-14 or GS-15
supervisor at FBI Headquarters (“FBIHQ”) in
Washington, D.C., and, again, was not selected for any of
these positions. Id. ¶ 8. In 2011, Mr. Siuzdak
applied for another fourteen positions, again as either a
GS-15 legal attaché, a GS-14 assistant legal
attaché, a GS-15 Unit Chief, or a GS-14 or GS-15
supervisor at FBIHQ, but was not selected for seven of those
positions. Id. ¶ 9.
Siuzdak was selected for one of the 2011 positions, resulting
in a “Previously Selected” status for the
remaining six positions. Id. Mr. Siuzdak became a
GS-14 Supervisor Special Agent, working as a liaison for the
National Security Agency (“NSA”) at the FBIHQ,
Special Agent Position. Def.'s SMF, Ex. A, ECF 62-5 at 2.
Mr. Siuzdak understood this position to be a promotion even
though it was posted as an 18-month detail. Siuzdak Tr. at
24:8-9. At some point, the detail became a permanent
position. Id. at 24:8-15. Many candidates aware of
the change withdrew their applications; although selected
from the remaining candidates, Mr. Siuzdak declined the
position. Id. at 24:16-23. Mr. Siuzdak testified
that he did not want to be assigned to the NSA as a permanent
staff member. Id. at 24:14-15.
November 2012, the FBI hired Mr. Siuzdak for and he began an
eighteen-month detail in the Inspection Division of the FBIHQ
(“INDS”). Def.'s SMF ¶ 18. While there,
in 2012, Mr. Siuzdak applied for another five positions.
Holland Aff. ¶ 10. Four positions were at the FBIHQ, and
one was a Supervisory Agent (SSA) in the New Haven Field
Office, where Mr. Siuzdak was a GS-13 SA. Id. In
November 2012, Mr. Siuzdak learned that he would receive a
temporary promotion to one of the other five positions he had
applied for in 2012-an 18-month detail as a GS-14 SSA in the
Inspection Division at the FBIHQ, to begin in December 2012.
Def.'s SMF ¶ 18.
Mr. Siuzdak's 18-month FBIHQ detail, he applied for
numerous supervisory positions. Id. ¶ 23. In
total, he applied for eleven positions in 2014, including two
legal attaché positions in Nairobi, Kenya, and
Tbilisi, Georgia, and nine SSA positions at FBI field offices
in Jacksonville, Houston, San Antonio, Tampa, Boston, and New
Haven. Holland Aff. ¶ 12. The FBI did not select Mr.
Siuzdak for any of these positions. Id.
The Local Career Board
April 2014, Special Agent in Charge (“SAC”)
Patricia Ferrick recommended Mr. Siuzdak for a Term, GS-14,
SSA position for the Organized Crime/Gangs/Criminal
Enterprise/Violent Crimes, Squad 4, in the New Haven Division
(No. 20140540), for which he applied. Sept. 6, 2016, OARM
Determination at 32-33; Jan. 8, 2015, Ferrick Statement at 4,
Def.'s SMF, Ex. L, ECF No. 63-17. Mr. Kline testified
that Mr. Siuzdak was initially ranked second for the
position. Aug. 10, 2015, Kline Statement at 5, Def.'s
SMF, Ex. T, ECF No. 62-25.
of that year, the FBI held a Local Career Board
(“LCB”) in the New Haven Division for the Squad 4
SSA position, in which Ms. Ferrick did not
participate. Jan. 8, 2015, Ferrick Statement at 5.
Based on an interview with Mr. Siuzdak, the LCB gave him a
marginal rating with respect to “Task Force core
competency, which is a crucial part of and responsibility of
the Squad 4 supervisory position.” Id. at 6.
results of the LCB were forwarded to Ms. Ferrick, in her role
as Division Head, for review and approval. Jan. 8, 2015,
Ferrick Statement at 5. Having served on a career board, it
was Ms. Ferrick's understanding that a candidate who
receives a marginal rating in critical competency does not
get ranked. Id. at 6. As a result, Ms. Ferrick
unranked Mr. Siuzdak. Id. The LCB then re-ranked Mr.
Siuzdak as third among the three candidates. Id.
The New Haven Division
2014, upon completion of his eighteen-month temporary duty
assignment to FBI-INSD, Mr. Siuzdak returned to the NHO's
New London Resident Agency. Sept. 6, 2016 OARM Determination
at 1. On July 11, 2014, Mr. Siuzdak “reverted from a
GS-14 [SSA] to a GS-13” SA in a non-supervisory status.
Id. Shortly thereafter, Ms. Ferrick re-assigned Mr.
Siuzdak to the NHO Headquarters City Office. Id. at
2. She testified that, upon returning to the New London
office, the agency was fully staffed. Jan. 8, 2015, Ferrick
Statement at 6. Based on Mr. Siuzdak's “great
experience” in criminal and counterterrorism matters,
domestically and abroad, Ms. Ferrick assigned him to the
Joint Terrorism Task Force, Squad 3, in New Haven, the same
position and salary grade at which Mr. Siuzdak had been prior
to his eighteen-month detail. Id. 6-7.
Ferrick believed Mr. Siuzdak “was a good fit for the CT
squad, ” which was the FBI's top priority.
Id. at 7. Although Mr. Kline recognized that Mr.
Siuzdak was assigned to Squad 3 based on “the needs of
the office, ” he made no mention of the office being
fully staffed. Jan. 12, 2015, Kline Statement at 4. Mr.
Siuzdak reported to the Department of Justice that Ms.
Ferrick and Mr. Kline removed SA Siuzdak from his permanent
Personnel Resource List (“PRL”) assignment in the
New London Resident Agency office and transferred him to the
New Haven Headquarters office. Sept. 29, 2014 DOJ Compl. at
2; accord Siuzdak Tr. at 58:16-18.
Siuzdak lived in New London, and, while an assignment to New
Haven meant an increase in pay by one percent in locality
pay, Siuzdak Tr. at 59:4-12, Mr. Siuzdak considered the
transfer to be punitive. Siuzdak Tr. at 56:1-2. According to
Mr. Siuzdak, Mr. Klopfer independently confirmed that the
transfer was an attempt by Ms. Ferrick and Mr. Kline to
punish Mr. Siuzdak. Id. at 64:15-19. Mr. Siuzdak
asserts that because the work is more demanding in Squad 3,
and working in one of the resident agencies, such as New
London, where Mr. Siuzdak has been stationed, “[was]
generally considered preferable, ” the transfer was
disciplinary. Id. at 59:16-17. Mr. Klopfer has told
Mr. Siuzdak that Mr. Klopfer took umbrage with the fact that
assignments in the counterterrorism program had been based on
“Kline and Ferrick going after [certain people] and not
the people that [Mr. Klopfer] needs to work the
program.” Id. at 56:9- 14.
Siuzdak testified that Ms. Ferrick had no “equities
into whether [he was] a supervisor in New Haven or
not.” Siuzdak Tr. at 48:14-18. Mr. Siuzdak believes
that had he been rated “excellent, ” this rating
would have put him at the top or second tier. Id. at
48:19-22. Based upon Mr. Siuzdak's experience and
knowledge of the Bureau and how it operates, Mr. Siuzdak
believes that in “New Haven, either/or one two of the
SAC's caused” his non-selection for the positions.
Id. at 49:10-50:11; accord Jan. 8, 2015,
Ferrick Statement at 5-6.
Siuzdak believes Ms. Ferrick and Mr. Kline retaliated against
him because he had filed an EEO complaint against SAC
Kimberly Mertz in June 2013. Siuzdak Tr. at 62:8-10. Mr.
Siuzdak, however, recognized that, at this juncture, he had
only met Ms. Ferrick several times at headquarters.
Id. at 56:20-23.
Siuzdak approached Ms. Ferrick to ask her why he had been
assigned to Squad 3. Jan. 8, 2015, Ferrick Statement at 7.
She explained that she needed experienced senior agents in
the counterterrorism squad. Id. She also explained
that there was a directive from FBIHQ to assign agents to
counterterrorism matters because the New Haven office was
“significantly underburning [sic] CT
matters.” Id. Mr. Siuzdak replied that other
supervisors who had stepped down from their supervisory
positions were assigned to the squads of their choice.
Id. Ms. Ferrick further explained that she did not
view an eighteen-month FBIHQ supervisor, which Mr. Siuzdak
was, and a field supervisor, which the other former
supervisors were, as having the same standing. Id.
The September 19, 2014, Meeting
Ferrick again met with Mr. Siuzdak on September 19, 2014.
Ferrick Decl. ¶ 3, Def.'s SMF, Ex. N, ECF No. 62-19.
An EEO counsellor arranged the meeting. Siuzdak Tr. at
72:9-25. At the meeting, “out of genuine concern,
” Ms. Ferrick asked Mr. Siuzdak about his health
because two weeks earlier Mr. Siuzdak had been hospitalized
as a result of chest pain. Jan. 8, 2015, Ferrick Statement at
8; Ferrick Decl. ¶ 4. She also informed Mr. Siuzdak that
there were a number of issues that were impeding his ability
to become a supervisor, including that he was often difficult
to get in touch with, his voicemail was frequently full, and
he had a reputation with other law enforcement agencies as
being non-responsive. See Ferrick Decl..
Id. ¶¶ 5-6 (“I also discussed with
[Mr. Siuzdak] that while he was hospitalized I had attempted
to contact him through his FBI-issued cell telephone, and
that I was unable to leave a message because his voicemail
box was full”). She stated: “I conveyed to SA
Siuzdak that the fact that his voicemail was left full gave
me the impression that being responsive and available to the
needs of the FBI was not a priority to him, and that he could
not be bothered to clear his voicemail or return telephone
calls. Id. ¶ 6; Jan. 8, 2015, Ferrick Statement
at 8. In response to Ms. Ferrick's suggestion that Mr.
Siuzdak lacked leadership potential, Mr. Siuzdak informed Ms.
Ferrick that a supervisor in the office was working part time
and collecting full-time pay. Siuzdak Tr. at 74:11- 75:17.
Ms. Ferrick allegedly did not respond to the comment.
Id. at 75:5-9.
part, Mr. Siuzdak recognized that his voicemail was at the
time full but claimed that he normally communicated with his
supervisor, Andrew Klopfer, and others by way of the Internet
and through text messages. Siuzdak Tr. at 68:20-24.
Ferrick also shared with Mr. Siuzdak that opportunities to be
promoted in the New Haven office were limited, given its
size. Jan. 8, 2015, Ferrick Statement at 9. Ms. Ferrick
encouraged him to “seek a supervisory position in
another division.” Jan. 8, 2015, Ferrick Statement at
9. Mr. Siuzdak thought Ms. Ferrick was counseling him to
separate from the NHO. Second Substituted Comp. ¶ 36(c);
see also Sept. 23, 2014, Ferrick E-mail at 1,
Def.'s SMF, Ex. O, ECF 62-20 (“As for my asking
[Mr. Siuzdak] to ask you if you want to move, my intention
was for him to have a discussion with his family about
options if he chose to seek employment in another field
office.”). Mr. Siuzdak maintains that Ms. Ferrick said
she would “support” Mr. Siuzdak if he was to
expand his search outside the New Have office. Siuzdak Tr. at
83:16-17. Ms. Ferrick claims that she became aware of Mr.
Siuzdak's EEO protected activity on September 20, 2014,
when she was contacted by an EEO counselor. Apr. 21, 2015,
Ferrick Statement at 3. Based on the call with the counselor,
Ms. Ferrick believed the complaint was related to Mr. Siuzdak
not being selected for the Squad 4 supervisory position.
Id. at 4.
The September 25, 2014, EEO Complaint
September 25, 2014, Mr. Siuzdak amended an EEO complaint he
had filed on June 10, 2013 against SAC Kimberly Mertz.
Def.'s SMF ¶ 38; Sept. 25, 2014, Compl. of
Discrimination at 1, Def.'s SMF, Ex. M, ECF No. 62-18.
The amendment alleged that Ms. Ferrick, Mr. Kline, and Mr.
Gentil retaliated against Mr. Siuzdak because Mr. Siuzdak had
filed an EEO complaint against Ms. Mertz. Id. The
retaliation began after Mr. Siuzdak had reported fraud
involving Mr. Gentil, Ms. Mertz, Mr. Kline, and Ms. Ferrick.
Id. In relevant part, the complaint further alleged:
. Mr. Gentil, who was a hostile witness in
Mr. Siuzdak's June 2013 retaliation complaint, was, on
the basis of a conflict of interest, required to recuse
himself from the LCB but failed or refused to do so.
. Mr. Kline was required to recuse himself
because he was involved in the fraud Mr. Siuzdak had
. Mr. Gentil and other members of the New
Haven Career Board improperly graded Mr. Siuzdak so as to
cause Mr. Siuzdak not to be selected for a Squad 4 position.
. Ms. Ferrick or Mr. Kline strategically
posted the next new Haven Supervisory position to manipulate
the candidate pool and prevent Mr. Siuzdak from “fairly
competing for upcoming supervisory desks.”
. Ms. Ferrick or Mr. Kline posted the
Meriden desk in an untimely fashion to manipulate the
candidate pool “to deny Mr. Siuzdak the
. Mr. Siuzdak's assignment to Squad 3
was retaliatory because other
“step-down-supervisors” were allowed to choose
. Ms. Ferrick or Mr. Kline “caused SA
Siuzdak's career track to be changed from a 17 year
criminal career to Counterterrorism career path, preventing
him from being reassigned to a criminal investigatory
. During EEO counseling, “SAC Ferrick
stated words to the effect of whether SA Siuzdak had
considered retiring when he became eligible.”
Id. at 1-2.
October 20, 2014, Mr. Siuzdak sued the then-Attorney General
Eric H. Holder, Jr. in this Court alleging that the
“Federal Bureau of Investigation (“FBI”)
retaliated against him on account of his opposition to the
age, gender, and disability discrimination to which he had
been subjected by the plaintiffs former supervisor, Ms.
Mertz, among others, who, at the time, was the Special Agent
in Charge, New Haven Division.” Compl. ¶ 1, ECF
The October Performance Appraisal Report
to Ms. Ferrick, in October 2014, Mr. Siuzdak took a
“draft” of his Performance Appraisal Report (PAR)
off the Operation Support Technician's desk. Jan. 8,
2015, Ferrick Statement at 11; see also Klopfer Tr.
at 39:14-16. (“I thought what I had done is I drafted
my version of it and I had put it on the squad secretary-the
Operational Support Technician's desk”). Mr.
Siuzdak claims that he was provided a copy of the signed
report by the Operation Support Technician, Gina Bell
Montoya. Siuzdak Tr. at 106:6-9.
Klopfer had prepared the draft PAR. Klopfer Tr. at 12:2-4. He
testified that, on account of his various responsibilities,
in drafting the report, he had copied and pasted into Mr.
Siuzdak's PAR some of the narrative text from the PAR he
had just completed for a female colleague. Id. at
12:12-20. Mr. Siuzdak testified that Mr. Klopfer provided Mr.
Siuzdak with a signed copy of the PAR, which he had not seen
previously. Siuzdak Tr. at 104:17-21.
Klopfer met with Mr. Siuzdak in Mr. Klopfer's office to
discuss the APR and Mr. Siuzdak pointed out that there were
mistakes in the APR, but before Mr. Klopfer realized the
mistakes, Mr. Klopfer and Mr. Siuzdak began to raise their
voices. Klopfer Tr. at 14:2-11. Mr. Siuzdak told Klopfer
“I'm a man; I'm a man, not a woman; and I was
being referred to as a woman, ” in the APR. Siuzdak
Dep. at 105:3-6. Recognizing he made a poor choice of works,
Mr. Klopfer, who was upset and aware of Mr. Siuzdak's
federal lawsuit, said “something” like: he
“wasn't going to back down, ” or that he was
not afraid of Mr. Siuzdak, or “I can file a lawsuit as
well.” Klopfer Tr. at 14:13-20. Mr. Klopfer said that
he did not want to be “influenced by the fact that that
[Mr. Siuzdak] had a lawsuit in Federal District Court.”
Id. at 15:2-6.
Klopfer allegedly became “embarrassed and
ashamed” by his behavior. Id. at 15:7-8.
During the confrontation, Mr. Siuzdak did not swear at or
belittle Mr. Klopfer, or act unprofessionally. Id.
at 15:20-16:2. If anything, it was Mr. Klopfer who
“misread the situation.” Id. at 17:7.
Mr. Siuzdak felt that the PAR was hurtful: in it, Mr. Klopfer
commented that Mr. Siuzdak was in a “running club,
” when Mr. Klopfer knew that Mr. Siuzdak was having
trouble walking. Siuzdak Tr. at 105:12-19.
Final PAR rated Mr. Siuzdak as “Successful.”
October 19, 2014, PAR at 1, Pl.'s SMF, Ex. 6, ECF No.
68-6. Mr. Klopfer felt that, at the time of the evaluation,
there was not a “body of work” on which to grade
Mr. Siuzdak, so Mr. Klopfer rated him a
“middle-of-the-road average sort of grade.”
Klopfer Tr. at 76:6-8. Among other things, the PAR states
that Mr. Siuzdak exhibited “a tremendous level of
interpersonal ability, ” and he “proactively
developed an informed knowledge of FBI policies, procedures,
and regulations.” October 19, 2014, PAR at 3.
November and December 2014 Non-Recommendations
Ferrick received notification that Mr. Siuzdak had applied
for two additional positions. Jan. 8, 2015, Ferrick Statement
at 10. One was a GS-14 SSA for the MRA-1 Squad in the New
Haven Division (No. 20150151). Id.; Job Chart,
Def.'s SMF, Ex. A, ECF No. 62-5 at 4. The other was for a
GS-14, SSA position for the White Collar Crime (WCC) Squad in
Houston (No. 20150241). Jan. 8, 2015, Ferrick Statement at
10; Job Chart at 4. As to the latter, the LCB initially
ranked Mr. Siuzdak as the number one candidate. Apr. 14,
2017, Corrective Action Order at 3. But after consideration
of SAC Ferrick's FD-955 recommendation, he was “Not
Ranked.” Id. The final ranking justification
reads: “Candidate Siuzdak received two Skilled and to
Competent ratings in the primary competencies and a Skilled
and Competent rating in the secondary competencies. He
received ratings higher than all other candidates; however,
he was not ranked because he was not recommended by his
division head.” Id. at 3.
the latter, the LCB's final rating comments provide:
“Candidate Siuzdak is the 3rdranked
candidate for the advertised position. While overall
Candidate Siuzdak's ranking was 2ndbased on
the core competencies, a negative recommendation on Candidate
Siuzdak's FD-955, Division Head Recommendation Form, was
considered by the LCB and resulted in Candidate Siuzdak being
the 3rd ranked candidate.” Id.
Siuzdak's November 13, 2014, FD 955 Form regarding the
New Haven position (No. 20150151) and the December 2, 2014,
FD 955 Form regarding the Houston position (No. 20150241),
Ms. Ferrick provided four principal reasons for not
recommending Mr. Siuzdak for either supervisory position: (1)
she was concerned about Mr. Siuzdak's responsiveness; (2)
in November of 2014, Mr. Siuzdak misrepresented how he
obtained the draft 2014 Performance Appraisal Report; (3) and
after reading it, he “berated” Mr. Klopfer, its
author, for ranking him “Successful”; and (4) was
repeatedly unresponsive when asked for his medical readiness
forms under FBIHQ mandate. Jan. 8, 2015, Ferrick
Statement at 10-11; Nov. 13, 2014, FD 955 Form, Def.'s
SMF, Ex. S, ECF No. 62-24; December 2, 2014, FD 955 Form at
1, Pl.'s SMF, Ex. 8, ECF No. 68-8. Ms. Ferrick testified
that she was not personally aware of there being an official
record of the meeting between Mr. Klopfer and Mr. Siuzdak or
whether Mr. Siuzdak had been disciplined as a result, but,
she explained, Mr. Klopfer told Ms. Ferrick about the
conversation. Ferrick Tr. at 17:13-18:6. Mr. Siuzdak asserts
that he filed the appropriate medical readiness forms before
the deadline, not after. Siuzdak Aff. ¶¶ 10,
Pl.'s SMF, Ex. 14, ECF No. 68-14.
many positions that Mr. Siuzdak applied for and was not
selected, fifty seven out of the sixty-two positions were not
based on non-recommendations. Def.'s SMF, Ex. A. Before
2014, Mr. Siuzdak had been rated either
“Excellent” or “Successful” in PARs.
See, e.g., Oct. 10, 2012 PAR at 1, Pl.'s SMF,
Ex. 4, ECF No. 68-4 (rated Excellent by Todd Kalish and
noting that “SA Siuzdak represents himself as [a]
humble professional who's [sic] work ethic is
beyond reproach . . . . SA Siuzdak exceed expectations [in]
achieving his goals and the goals of FBI management.”);
Oct. 30, 2013, PAR at 1 (rated Excellent by Lee W. Harbaugh
and noting that “This level of dedication and tenacity
is rare and [Mr. Siuzdak] is further commended in this regard
for his actions.”); Oct. 29, 2014, PAR at 1, Pl.'s
SMF, Ex. 6, ECF No. 68-6 (rated “Successful” by
Andrew W. Klopfer).
January 2015, Mr. Kline sent an e-mail to Mr. Klopfer
regarding concerns about Mr. Siuzdak's performance and
“proactive steps to address the
deficiencies.” Apr. 21, 2015, Kline Statement at 3. Mr.
Siuzdak allegedly was not performing sufficient
counterterrorism investigatory activity, nor was he
“participating in the Intelligence Programs through the
identification, recruitment, and utilization of Confidential
Human Sources.” Id. at 3-4. In Sentinel, the
FBI's case management system, “there was no
substantive activity in a full investigation assigned to SA
Siuzdak for over five months, ” which Mr. Kline found
to be unacceptable. Id; accord Kline's
Jan. 30, 2015 e-mail, Def.'s SMF, Ex. V, ECF No.
result, Mr. Kline directed Mr. Klopfer to counsel Siuzdak on
his investigative progress. Apr. 21, 2015, Kline Statement at
4. “In order to ensure SA Siuzdak could be
postured for success within the International Terrorism
Program, [Mr. Kline] instructed SSA Klopfer to only assign SA
Siuzdak Guardian matters.” Id. at 5;
Kline's Jan. 30, 2015 E-mail. Guardian matters would
require Mr. Siuzdak to complete assignments on deadline and
provide “a simple and direct focus.” Apr. 21,
2015, Kline Statement at 5. Mr. Kline also instructed Mr.
Klopfer to inquire as to whether Mr. Siuzdak felt he needed
additional training. Kline's Jan. 30, 2015 email.
Klopfer testified that the one case Mr. Kline had seen on
Sentinel, was a case on which Mr. Klopfer and a number of
agents had completed most of the work before it was assigned
to Mr. Siuzdak. Klopfer Tr. at 37:3-8. Mr. Siuzdak was
“fairly new to international terrorism, ” but
took the case without complaining, conducted surveillance and
sought subjects, and scheduled interviews with suspects.
Id. at 37:9-16. This was all before Mr. Siuzdak had
his “knee repaired.” Id. at 38:18. Mr.
Klopfer stated: “I've had other people that have
just mailed it in for less.” Id. 38:22-23. Mr.
Klopfer explained that Mr. Kline, on a number of occasions,
had verbally told Mr. Klopfer that Mr. Kline wanted Mr.
Siuzdak working nothing but Guardian leads. Id. at
20:11-14. Given his own experience, Mr. Klopfer interpreted
Mr. Klines's comments to insinuate that Guardian leads
were less meaningful and less prestigious than a
“substantive investigation.” Id. at
Klopfer also recounted that, in justifying assigning Mr.
Siuzdak to Guardian leads, Mr. Kline stated: “I
don't want that guy working cases. I don't want him
having anything to do with cases.” Id. at
20:25-21:1. Mr. Siuzdak maintains that Mr. Kline said to Mr.
Siuzdak: “You'll understand: This is my world, you
just work here.” Siuzdak Tr. at 123:18-19.
Klopfer's view, Mr. Siuzdak “showed
initiative” with respect to the Guardian tasks to which
he was assigned. Klopfer Tr. at 36:16-18. In violation of Mr.
Kline's order, Mr. Klopfer gave Mr. Siuzdak two
investigative cases to work. Id. at 36:21-22. Mr.
Klopfer also explained that Mr. Siuzdak had kept Mr. Klopfer
“verbally appraised” of Mr. Siuzdak's work on
the full investigation to which he had been assigned but the
paper file did not reflect Mr. Siuzdak's progress on the
case. Mar. 1, 2016, Klopfer Statement at 4, Def's SMF,
Ex. AA, ECF No. 62-32. Mr. Kline, for his part, described Mr.
Siuzdak's performance for the remainder of the year as
“a lot of running sideline to sideline, but no down the
field.” Inspector General Report at 8, Pl.'s SMF,
Ex. 3, ECF No. 68-3. But Mr. Kline could not recall any
substantive issue involving and of Mr. Siuzdak's Guardian
leads investigations. Id.
February 11, 2015, EEO Complaint
February 11, 2015, Mr. Siuzdak's filed his fourth EEO
complaint; it alleges that his assignment to work Guardian
leads was done in retaliation for his prior EEO activity.
Def.'s SMF ¶ 44. In the complaint, Mr. Siuzdak
alleged that Mr. Kline, in direct retaliation against Mr.
Siuzdak, used “false, misleading statements, and/or
material omissions to libel Siuzdak by manufacture
[sic] a fraudulent basis for placing SA Siuzdak on
informal [a] Performance Improvement Plan . . . .” Feb.
11, 2015, Complaint of Discrimination, Def.'s SMF, Ex. W,
ECF No. 62-28 at 2. The complaint also referenced Mr. Kline
assigning Mr. Siuzdak to Guardian leads. Id. at No.
62-28 at 3.
Ms. Ferrick's Investigation
April 7, 2015, Mr. Siuzdak, approximately one day after he
was contacted by the EEO investigator regarding his
then-current complaint, was informed that Ms. Ferrick had
requested his travel records. Investigative Summary at 4,
Def.'s SMF, Ex. Y, ECF No. 62-30. Ms. Ferrick claims that
she had gone to Mr. Siuzdak's desk regarding a law
enforcement action that Mr. Siuzdak had taken in support of
the State of Connecticut Police, which she thought was
“a good thing that he did.” Ferrick Tr. at
52:19-53:1. While she was at his desk, she noticed that Mr.
Siuzdak's office credit card statement was on his desk,
which included a purchase of gasoline from Manassas,
Virginia. Id. at 53:2-7. Ms. Ferrick then inquired
into Mr. Siuzdak's travels, including going to the
financial manager to “run a quick review” of the
last year of Mr. Siuzdak's travels. Id. at
54:13-17. Mr. Siuzdak had been traveling, and the expense was
legitimate. Id. at 55:15. After Ms. Ferrick
requested travel and credit card documentation, she took no
further action. Def.'s SMF ¶ 45.
Siuzdak again amended his fourth EEO complaint to include an
allegation that Ms. Ferrick conducted a search of his desk
and workspace and initiated an investigation, without cause,
of his administrative and financial records. Def.'s SMF
April 29, 2015, EEO Complaint
April 3, 3015, Mr. Siuzdak learned that Ms. Ferrick did not
recommend him for a supervisory position in the New Haven
Division (No. 20150355). July 28, 2015, Ferrick Statement at
1, Def.'s SMF, Ex. R, ECF No. 62-23; Job Chart at 4; Jan
20, 2015 FD 955 Form, Def.'s SMR, Ex. S, ECF No. 62-24.
In the FD 955 Form, Ms. Ferrick adopted in its entirety the
reasoning included in the November and December FD 955 Forms.
April 29, 2015, Mr. Siuzdak amended his fourth EEO complaint.
Def.'s SMF ¶ 46. In it, Mr. Siuzdak alleged:
. Ms. Ferrick and Mr. Kline
“retaliated and created a hostile work
environment” by posting in the FBI's building a
flyer state that Mr. Gentil retire with “20 years of
honorable service, ” when in fact Mr. Gentil's
misconduct was the subject of federal litigation that also
involved Ms. Ferrick and Mr. Kline.
. Ms. Ferrick filed a
“non-recommendation” against Mr. Siuzdak for a
supervisory job posting in New Haven and had filed
“multiple non-recommendations against SA Siuzdak for
every job he has applied for ...