United States District Court, E.D. Michigan, Northern Division
ANTHONY A. GAZVODA, Plaintiff,
SECRETARY OF HOMELAND SECURITY, and COMMISSIONER OF UNITED STATES CUSTOMS AND B PROTECTION, Defendants.
ORDER DENYING MOTION FOR PROTECTIVE ORDER
L. LUDINGTON United States District Judge.
Anthony A. Gazvoda filed a verified complaint against
Defendants Jeh Johnson, Secretary of the Department of
Homeland Security, and R. Gil Kerlikowske, Commissioner of
U.S. Customs and Border Protection, on November 22, 2015.
See Pl.'s Compl., ECF No. 1. He has sued both
the Secretary and the Commissioner in their official
capacities. He alleges that the Defendants have not
accommodated his disability in accordance with the
Rehabilitation Act of 1973, see 29 U.S.C. §
filed a motion for a temporary restraining order, which was
denied on November 24, 2015. Op. & Order, ECF No. 5. A
hearing on Gazvoda's request for a preliminary injunction
was held on January 26, 2016. On January 29, 2016, Defendants
filed a motion to dismiss Gazvoda's complaint, arguing,
as they did in their response briefs to Gazvoda's motion
for a preliminary injunction, that Gazvoda did not exhaust
his administrative remedies and that the relief Gazvoda seeks
is contrary to the policy of the Department of Customs and
Border Protection. ECF No. 30. Defendants' motion was
denied on April 7, 2016 and a preliminary injunction was
conditionally imposed, subject to further briefing. ECF No.
34. On August 1, 2016, the preliminary injunction was
dissolved because Gazvoda failed to show that irreparable
injury would occur if the injunction was not maintained. ECF
the preliminary injunction was dissolved, Gazvoda filed an
amended complaint (with Defendants' consent) alleging
violations of § 501 of the Rehabilitation Act of 1973,
29 U.S.C. § 701, et seq. ECF No. 46. On
September 2, 2016, a scheduling order was issued. ECF No. 51.
On December 14, 2016, Defendants filed a motion for a
protective order. ECF No. 52. For the reasons stated below,
that motion will be denied.
facts as set forth in the Court's August 2, 2016, Opinion
and Order will be repeated in abbreviated form herein.
Anthony Gazvoda is a veteran of the Afghanistan War and is
currently on medical leave from his job as a United States
Customs and Border Patrol Officer. Defendants are the lead
Government officials in charge of the Department of Homeland
Security (“DHS”) and the United States Customs
and Border Protection Agency (“CBP”). The CBP is
a subdivision of DHS and is “charged with securing the
borders of the United States.” Pl.'s Compl. ¶
10, ECF No. 1.
was deployed to Afghanistan in January 2009. He served in
combat from January to November 2009. While in combat Gazvoda
was engaged in numerous firefights and was tasked, along with
his team, with clearing improvised explosive devices. During
his time in combat, Gazvoda witnessed a number of gruesome
and unsettling injuries to individuals with whom he served
return from combat, Gazvoda immediately experienced
difficulty sleeping. He sought help and, by May 2010, was
free of his sleep issues. “Gazvoda began employment
with Defendant CBP on or about September 11, 2010.”
Id. at ¶ 15. Gazvoda trained for approximately
five months in New Mexico at the conclusion of which, in
February 2011, he was stationed at a CBP post in Laredo,
two months of being stationed in Laredo, Gazvoda “began
experiencing insomnia, anxiety, depression, and panic
attacks.” Id. at ¶ 17. He sought help and
benefits from the Veterans Affairs (“VA”) in
Laredo, but without satisfaction. Gazvoda reports that his
symptoms gradually increased and he alleges that this forced
him to leave Laredo and take unpaid administrative leave.
sought assistance at the VA hospital in Grayling, Michigan.
Gazvoda took leave without pay (LWOP) beginning in December
of 2011. Eventually, CBP classified him as Absent Without
Leave (AWOL). Gazvoda contested this classification since his
leave was due to ongoing mental health issues. CBP then
retroactively transitioned Gazvoda to paid administrative
leave status. He has been on paid administrative leave status
(retroactively for a period) since leaving Laredo.
traveling to Michigan and seeking help at the Grayling VA
hospital, Gazvoda consulted with a number of mental health
professionals. Eventually, he was diagnosed with
posttraumatic stress disorder (“PTSD”). The
medical professionals that examined Gazvoda concluded that
the environment of Laredo was too similar to the environment
of Afghanistan, the trigger-point for Gazvoda's PTSD.
Specifically, they concluded that the presence of dark-
skinned individuals that spoke a foreign language aroused
painful and unpleasant memories from when Gazvoda was
deployed. The doctors also recommended against placing
Gazvoda in a densely populated city. None of the doctors
opined on any dissimilarities between individuals of Hispanic
or Latino ethnicity and individuals of Arab, Middle-Eastern,
or South Asian ethnicity. Nor did the doctors opine on
Gazvoda's apparent ability to understand the Spanish
language and whether he could understand any of the
indigenous languages spoken in Afghanistan along the Pakistan
border, where he was deployed. Nevertheless, all of the
doctors Gazvoda sought out concluded that he should not, at a
minimum, be stationed in Laredo if he is to see any
improvement in his condition and be able to function as a
Border Patrol Officer. All of the doctors supported a
“compassionate transfer” to a northern
initially received his diagnosis of PTSD in 2012, but one of
his examiners noted that his condition was chronic and severe
and likely to persist into the foreseeable future.
See Report of John Haskin, Pl.'s Compl., Ex. D,
ECF No. 1-5. Accordingly, Gazvoda has been evaluated as
recently as May ...