Siuzdak v. Sessions

• Decision Date: 21 February 2018
• Docket Number: No. 3:14–cv–01543 (VAB),3:14–cv–01543 (VAB)
• Court: U.S. District Court — District of Connecticut
• Parties: Kurt SIUZDAK, Plaintiff, v. Honorable Jefferson B. SESSIONS III, In His Official Capacity as the Attorney General of the United States, Defendant.

295 F.Supp.3d 77

Kurt SIUZDAK, Plaintiff,

v.Honorable Jefferson B. SESSIONS III, In His Official Capacity as the Attorney General of the United States, Defendant.

No. 3:14–cv–01543 (VAB)

United States District Court, D. Connecticut.

Signed February 21, 2018

Thomas W. Bucci, Willinger, Willinger & Bucci, P.C., Bridgeport, CT, for Plaintiff.

Karen Folster Lesperance, U.S. Attorney's Office, Albany, NY, for 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 BACKGROUND²

A. FACTUAL ALLEGATIONS³

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 ...