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Siuzdak v. Sessions

United States District Court, D. Connecticut

February 21, 2018

KURT SIUZDAK, Plaintiff,
v.
HONORABLE JEFFERSON B. SESSIONS III, In His Official Capacity as the Attorney General of the United States, Defendant.

          RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         Kurt 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.[1]

         Defendant now moves for summary judgment under Federal Rule of Civil Procedure 56. ECF No. 62.

         For the following reasons, the motion for summary judgment is DENIED.

         I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND[2]

         A. FACTUAL ALLEGATIONS[3]

         Mr. 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.

         Mr. 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.

         1. Denied Positions Between 2009 and 2012

         In 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.

         Mr. 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.

         In 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.

         During 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.

         1. The Local Career Board

         In 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.[4] 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.

         In May of that year, the FBI held a Local Career Board (“LCB”)[5] in the New Haven Division for the Squad 4 SSA position, in which Ms. Ferrick did not participate.[6] 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.

         The 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.[7] Id.

         2. The New Haven Division

         In June 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.

         Ms. 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.

         Mr. 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.

         Mr. 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.

         Mr. Siuzdak believes Ms. Ferrick and Mr. Kline retaliated against him because he had filed an EEO complaint against SAC Kimberly Mertz in June 2013.[8] 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.

         Mr. 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.

         3. The September 19, 2014, Meeting

         Ms. 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.

         For his 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.

         Ms. 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.

         4. The September 25, 2014, EEO Complaint

         On 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 reported.
. 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 position.”
. Mr. Siuzdak's assignment to Squad 3 was retaliatory because other “step-down-supervisors” were allowed to choose between assignments.
. 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 position.”
. 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.

         g. Federal Lawsuit

         On 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 No. 1.

         h. The October Performance Appraisal Report

         According 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.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         The 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.

         i. November and December 2014 Non-Recommendations

         Mr. 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.

         As to 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.”[9] Id.

         In Mr. 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.[10] 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.

         In the 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).

         10. Guardian Leads

         In 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.”[11] 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. 62-67.

         As a 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.

         Mr. 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 20:14-18.

         Mr. 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.

         In Mr. 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.

         11. February 11, 2015, EEO Complaint

         On 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.

         12. Ms. Ferrick's Investigation

         On 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.

         Mr. 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 46.

         13. April 29, 2015, EEO Complaint

         On 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.

         On 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 ...

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