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Gazvoda v. Secretary of Homeland Security

United States District Court, E.D. Michigan, Northern Division

January 17, 2017



          THOMAS L. LUDINGTON United States District Judge.

         Plaintiff 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. § 794(a).

         Gazvoda 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 No. 38.

         After 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.


         The facts as set forth in the Court's August 2, 2016, Opinion and Order will be repeated in abbreviated form herein.

         Plaintiff 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.


         Gazvoda 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 closely.

         Upon 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, Texas.


         After 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.

         He 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.


         Upon 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 environment.

         Gazvoda 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 ...

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