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Gazvoda v. Secretary of Homeland Security

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

June 16, 2017




         Plaintiff Anthony Gazvoda filed a complaint against Defendants the Secretary of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”) on November 21, 2015. ECF No. 1. In the complaint, Gazvoda alleges that the Defendants wrongfully denied his request for a reasonable accommodation. Gazvoda is a veteran who suffers from Post-Traumatic Stress Disorder (“PTSD”) and who requested reassignment from his post as a border patrol agent in Laredo, Texas, to Sault Ste. Marie, Michigan. Immediately after filing the complaint, Gazvoda filed a motion for a temporary restraining order or preliminary injunction. ECF No. 2. The Court denied Gazvoda's request for a temporary restraining order, but scheduled a preliminary injunction hearing and directed expedited briefing. ECF No. 5.

         The preliminary injunction hearing was held on January 26, 2016. Several days after the hearing, the Government filed a motion to dismiss. ECF No. 30. On April 7, 2016, the Court issued an opinion and order denying the motion to dismiss, conditionally granting the motion for a preliminary order, and resolving several other minor motions. ECF No. 34. In that order, the Court explained that “Gazvoda's claim for preliminary injunctive relief (and perhaps his entire claim on the merits) depends on his ability to demonstrate that a position was available at the border patrol stations in Sault Ste. Marie and Port Huron.” April 7, 2016, Op. & Order at 14, ECF No. 34. For that reason, the Court imposed a temporary injunction and opened discovery for one month into the availability of border patrol positions in Michigan during the relevant timeframe.

         On August 1, 2016, the Court dissolved the temporary injunction and denied the motion for a preliminary injunction. ECF No. 38. Although open positions existed, the Court found that Gazvoda could be fully compensated for his alleged injuries via money damages. Accordingly, an injunction was not necessary to prevent irreparable harm.

         Discovery then began. On December 14, 2016, the Government filed a motion for a protective order. ECF No. 52. In the motion, the Government requested a protective order precluding the depositions of Drs. Kirk Swabash, Robert Barger, and Craig Lemmen. The Defendants argued that the only issue before the Court would be “whether, based on the information provided to U.S. Customs and Border Protection (CBP) at the time, it improperly denied Plaintiff's accommodation request.” Mot. Prot. Order at 1, ECF No. 52 (emphasis in original). The Court denied the motion for a protective order, finding that the information sought in the depositions was relevant to a number of potentially contested elements of Gazvoda's claim. ECF No. 57. Two weeks later, Gazvoda filed a motion for sanctions and attorney fees for defending against the motion for a protective order. ECF No. 58.

         On April 3, 2017, the parties filed cross motions for summary judgment. ECF Nos. 63, 64. Because genuine issues of material fact remain, both motions for summary judgment will be denied. Gazvoda's motion for sanctions will likewise be denied.


         Plaintiff Gazvoda joined the Michigan National Guard in 2001. Gazvoda Dep. at 8, ECF No. 64, Ex. 1. He applied for a position as a border patrol agent in 2007 and received a job offer in 2008. Id. at 9. However, because Gazvoda was in the process of deploying to Afghanistan, he was unable to accept the offer. Id. Gazvoda's tour in Afghanistan lasted from January to November of 2009. Id. at 10. While deployed, Gazvoda served as a “team leader for a route clearance platoon.” Id. That platoon was tasked with clearing roads of improvised explosive devices and ambushes. Id. The route clearance typically occurred in rural areas. Id. at 11.

         According to a report prepared by psychologist John Haskin, Gazvoda indicated that he experienced 34 firefights while in Afghanistan. Haskin Rep. at 6, ECF No. 64, Ex. 5. Haskin explains: “While he lost no personnel, he did see a number of severe injuries including seeing an arm blown off, a buddy shot through the shoulder, and another shot through the knee. He has a number of scars, two slipped discs, and suffered at least one concussion. . . . He has suffered from very bad headaches.” Id.


         After his tour, Gazvoda returned to Michigan. Id. Immediately after returning, Gazvoda experienced trouble sleeping, diagnosed as insomnia. Id. He saw psychiatrist Robert Barger. Barger Eval. April, 28, 2010, ECF No. 64, Ex. 2. Dr. Barger indicated that Gazvoda reported recurrent headaches, decreased concentration, “broken sleep with nightmares, hypervigilance, intrusive recollections, avoidance of crowds and certain triggers, irritability, and some emotional numbing.” Id. at 2. Dr. Barger concluded that Gazvoda was suffering from combat-related PTSD. Id. at 2. Despite that diagnosis, Dr. Barger appeared to believe that Gazvoda's symptoms were not debilitating and that he was capable of moving south for employment as a border patrol officer, assuming Gazvoda received treatment from the local VA in Texas. Id. at 2. Gazvoda applied for a border patrol position and was offered a position. On September 10, 2010, Gazvoda traveled to New Mexico for training. Gazvoda Dep. at 16. While training, Gazvoda did not experience any PTSD symptoms. Id. As part of the training, he became proficient in Spanish. Id.

         Around April or May of 2011, Gazvoda was assigned to Laredo, Texas. Id. at 17. As a border patrol agent, Gazvoda was tasked with protecting the United States from “the illegal entry of aliens, terrorists, and terrorist weapons.” Id. at 18. He was assigned to a particular border station and also manned a checkpoint approximately 30 miles from the border. Id. Gazvoda carried a weapon but never discharged it. Id.

         Almost immediately upon moving to Laredo, Gazvoda began experiencing “severe panic attacks, particularly when sleeping.” Haskin Rep. at 2; Gazvoda Dep. at 20. His insomnia worsened to the point where he was “awake all night or like an hour of sleep sporadic throughout the week.” Gazvoda Dep. at 13. He suffered from consistent anxiety and experienced survivor's guilt stemming from experiences in Afghanistan. Haskin Rep. at 6. According to Gazvoda, these symptoms did not impact his job performance as a border patrol agent. Gazvoda Dep. at 26. However, his personal life was dramatically impacted. Gazvoda reports that he “just found myself pretty much just in my apartment after work.” Id. at 27.[1] Gazvoda scheduled an appointment with a VA psychiatrist in Texas for July 20, 2011. Id. at 24. The appointment was scheduled for 8:00 a.m, and Gazvoda left without seeing the doctor around 9:00 a.m. Id.

         In May 2011 (soon after moving to Laredo), Gazvoda applied for disability benefits through the VA. See Disability App., ECF No. 64, Ex. 3. Gazvoda listed PTSD, anxiety disorder, sleep disorder, bilateral hearing loss, and tinnitus as the disabling conditions he was suffering from. Id. Several months later, Gazvoda was evaluated by Dr. Gerwell in San Antonio, Texas. Dr. Gerwell Eval., ECF No. 64, Ex. 4.[2] According to that evaluation, Gazvoda described his symptoms as difficulty sleeping, emotional detachment, frequent panic attacks, and avoidance of stressful situations like crowds. Id. at 1. Dr. Gerwell described the symptoms as of moderate severity and indicated that they were “constant, continuous, or ongoing.” Id. At the time Dr. Gerwell evaluated Gazvoda, he was not receiving treatment for his disorders. Id. Ultimately, Dr. Gerwell concluded that Gazvoda's symptoms met “the diagnostic criteria of PTSD.” Id. at 5. She noted that Gazvoda had “difficulty falling or staying asleep, difficulty concentrating, irritability or outbursts of anger, hypervigilance and exaggerated startle response.” Id. at 5-6. Dr. Gerwell opined that the “prognosis for the psychiatric condition is fair, ” but cautioned that “without treatment there is not likely to be improvement.” Id. at 6. Gazvoda currently receives disability benefits from the VA. Benefits Letter, ECF No. 63, Ex. 13.[3] There is no record that Gazvoda received further treatment for PTSD while in Laredo. In December 2011, Gazvoda discussed his difficulties with his supervisor, who recommended that Gazvoda return to Michigan for a week and seek treatment. Gazvoda Dep. at 28. After requesting and receiving leave without pay (abbreviated as LWOP), Gazvoda returned to Michigan. Id. at 28-29.


         Once back in Michigan, Gazvoda received treatment from Dr. Haskin and continued treatment with Dr. Barger. Id. at 29. Dr. Haskin evaluated Gazvoda three times during February and March of 2012. On March 24, 2012, Dr. Haskin issued a report summarizing his diagnosis and recommendations. Haskin Rep. at 1. Dr. Haskin indicated that the report was being prepared, in part, to determine whether Gazvoda “might qualify for a compassionate transfer under U.S. Customs and Border Protection Guidelines.” Id. The report explained that Gazvoda's sleep improved after he left Laredo, but that he still “confines himself to his home most of the time.” Id. at 2.

         Dr. Haskin found that Gazvoda's reported symptoms, appearance, actions, and responses were “clearly indicative” of a person “in the acute stages of severe Posttraumatic Stress Disorder.” Id. at 3, 5, 8. For example, Dr. Haskin explained that Gazvoda reported agitation and obsessive/impulsive behavior. He further suggested that Gazvoda had a dissociative disorder and felt alienated. Id. at 4. Gazvoda was uncomfortable around people and, as a result, isolated himself. Id. at 5. Gazvoda's “move out of Laredo . . . produced some desired results, ” but Dr. Haskin reported that many of Gazvoda's PTSD symptoms continued presenting after the move.

         Dr. Haskin specifically found that Gazvoda's “job as a Border Patrol officer in Laredo, TX has provided many significant cues that give rise to reactivating his trauma on a regular basis and led to deterioration of emotional, physical, and mental health.” Id. at 8. Dr. Haskin went on to explain that

[n]umerous aspects of the environment, both common in and unique to his Laredo placement, which are beyond anyone's control create visual, audio, tactile, and olfactory cues that trigger memories of similar situations, and generate automatic responses that impair Mr. Gazboda's [sic] mental health, physical well-being, and ability to function on the job. Some of these include climate and terrain, people who “look different” than those he sees in more comfortable situations, people who speak in a language that he does not readily understand, night ops similar to those in which some of his worst firefights took place, high tension related to drug trafficking and violence more severe than in most other border locations.

Id. at 9.

         Dr. Haskin went on to opine that “the current level of treatment provided [to Gazvoda] by the VA is not adequate.” Id. In fact, he found that “Gazvoda has neither the judgment nor the physical, mental, or emotional energy required to perform the duties of a border patrol officer at this time. His impaired judgment, slow reactions, and anxiety could put himself, the public, and other officers in danger. In fact, we see him as unable to work in any capacity at this time.” Id. However, Dr. Haskin opined that “[i]f Mr. Gazvoda receives adequate treatment, . . . he might be ready to return to work at the same job but in a different work environment (location) in as little as three to, more likely, six months.” Id. (emphasis added). For that reason, Dr. Haskin recommended that Gazvoda be transferred “from Laredo to as dissimilar a setting as possible. . . . Most locations on the east or west coast or the Canadian border should provide sufficient differences to enable him to function well.” Id. at 10 (emphasis omitted).

         In his deposition, Dr. Haskin provided additional context for his report. Haskin Dep., ECF No. 63, Ex. 4. Dr. Haskin explained that individuals suffering from severe PTSD often “can't coherently put the pieces all together to explain to somebody exactly what's going on because you don't know.” Id. at 9. Despite the fact that Gazvoda's symptoms thus included a lack of insight into his condition, Dr. Haskin noted that Gazvoda was frank and honest during the evaluation. See Id. at 22. There was no indication that Gazvoda was malingering. Id.

         Over the next several years, Gazvoda was evaluated by several other doctors.[4] As mentioned above, Gazvoda resumed treatment with Dr. Barger upon his return to Michigan. On July 16, 2012, Dr. Barger issued a statement: Gazvoda “has requested transfer from the southern border as part of his work as a Border Control Agent as the southern environment was a significant trigger for his PTSD given his previous experiences. It is my opinion that this request of transfer to the Northern environment would be extremely beneficial and appropriate.” Barger Letter, ECF No. 46, Ex. C.

         Similarly, Gazvoda was examined by Dr. Martin Vandenakker on July 3, 2013.[5]Vandenakker Op., ECF No. 46 Ex. E. Dr. Vandenakker explained that Gazvoda had “developed classic symptoms of PTSD.” Id. at 5. He further found a “clear relationship between job location placement, with unfamiliar and densely populated area, and exacerbation of his symptoms and continued deleterious affect.” Id. He concluded: “I not only support the diagnosis of PTSD, but also support hardship transfer back to northern area where there are less environmental triggers, more familiarity.” Id.


         From December 17, 2011, to May 25, 2013, Gazvoda's requests for LWOP were granted. See AWOL Notification Letter at 1, ECF No. 64, Ex. 7. In a letter dated May 18, 2013, however, Gazvoda's request for leave from June 14, 2013, to July 14, 2013, was denied. Id. at 2. In the letter, CBP explained that the request for leave was denied because there was insufficient supporting medical documentation. The letter reflected that Gazvoda had submitted recommendations from Tom Kirk, a social worker Gazvoda had been meeting with, and Dr. Barger. CBP found the submitted medical documentation was insufficient for two reasons. First, CBP indicated that social worker Tom Kirk did not qualify as a medical authority and thus his recommendation could not be relied upon. Second, the letter discounted Dr. Barger's opinion because he simply recommended that Gazvoda be transferred to the northern border and did not state that “you ‘can NOT go back to work in Laredo, Texas.'” Id. at 1. Gazvoda was ordered to report for duty in Laredo on June 14, 2013. When Gazvoda did not report, another letter was sent informing Gazvoda that he was absent without leave (“AWOL”).

         After receiving the first letter denying his request for leave, Gazvoda immediately contacted Dr. Barger. According to Dr. Barger's records, Gazvoda made the following request: “‘I need a letter that says I can NOT go back to work in Laredo Texas and that I have to work in Michigan, in a northern border state. It can't say ‘recomend' [sic] last time Dr. Barger said he didn't ‘recomend' [sic] that I work in Laredo but it has to say that I CAN'T work in Laredo, Texas.'” Barger Rec. at 2, ECF No. 64, Ex. 8. Dr. Barger then provided Gazvoda with an updated recommendation using the language Gazvoda requested. Id. at 3. Notwithstanding the update, Gazvoda's request for LWOP was not approved.

         Despite being under standing orders to report to Laredo, Texas, Gazvoda remained in Michigan. On January 22, 2015, CBP sent Gazvoda a letter explaining that he was being placed on administrative leave. On May 23, 2015, CBP sent another letter wherein they explained that “the agency cannot allow your absence to continue indefinitely.” March 23, 2015, Letter from Agency, ECF No. 64, Ex. 10. That letter presented Gazvoda with three options: return to work, request a reasonable accommodation, or resign. Id.[6]

         In response to the letter, Gazvoda sought an accommodation. Gazvoda Dep. at 57. Gazvoda requested to be transferred to Sault Ste. Marie, Michigan. Accommodation Request, ECF No. 63, Ex. 6. To that end, he contacted Alicia Davila of the Customs and Border Protection's Office of Diversity and Civil Rights. Id. On May 19, 2015, Ms. Davila sent Gazvoda a letter confirming receipt of his request for a reasonable accommodation and directing Gazvoda to have his treating doctor complete a questionnaire attached to the letter. Davila Letter, ECF No. 64, Ex. 12. In response, Dr. Kirk Swabash[7] sent two letters to Ms. Davila. In both letters, Dr. Swabash indicated that Gazvoda was suffering from PTSD. He explained: “I am of the opinion that there is a direct relationship between job location placement and direct exacerbation of his underlying disorder. Unfamiliar and densely populated areas will cause an exacerbation of his symptoms which, if continued, could have a deleterious effect on his general [physical] and mental health.” Sec. Swabash Letter, ECF No. 46, Ex. A.

         Gazvoda's request for a reasonable accommodation was then reviewed by the Chief Patrol Agent of the Laredo Sector, Mario Martinez. On June 26, 2015, Mr. Martinez sent Gazvoda a letter explaining that “the information gathered during the interactive process does not clearly indicate whether you have a disability that requires an accommodation, and if so, whether you can perform the essential functions of the job with or without an accommodation[.] . . . I have determined that a Fitness for Duty Examination (FFDE) is warranted.” Martinez June 26, 2015, Letter, ECF No. 64, Ex. 13.

         Gazvoda subsequently received both a physical and a psychiatric evaluation. During the physical evaluation, Gazvoda disclosed that he broke his back in 2004 and had metal rods inserted. See Physical Eval. at 3, ECF No. 64, Ex. 14. Gazvoda appeared to report occasional back pain related to that injury, but Gazvoda denied that he had significant physical restrictions. Id. at 6. Based on the evaluation, Gazvoda was found physically fit for duty as a border patrol agent.

         Gazvoda also received a psychiatric evaluation by Dr. Craig Lemmen. Lemmen Eval, ECF No. 64, Ex. 15. The evaluation was conducted on October 19, 2015. Dr. Lemmen found that Gazvoda appeared “free from symptoms of any depressive disorder, anxiety disorder, or thought disorder.” Id. at 3. According to Dr. Lemmen, Gazvoda indicated that he had loved his job as a border patrol agent in Laredo, but had struggled with PTSD while there. Id. at 4. When asked about current PTSD symptoms, Gazvoda “indicated that for a long time he couldn't go into public places.” Id. But Gazvoda indicated that his symptoms had improved since returning to Michigan: he “denied having any present nightmares” and “indicated that overall he felt he had a fairly mild case of PTSD.” Id. When Dr. Lemmen asked whether Gazvoda believed he could work in Laredo again, Gazvoda said that “he probably could, although he had some apprehension that what happened before might happen again.” Id. at 56.

         Dr. Lemmen concluded that Gazvoda continued to suffer from PTSD, but concluded that “the severity of the condition is very mild.” Id. at 8. He emphasized that Gazvoda “essentially denies all of those symptoms [of PTSD]” and noted that he did not witness any discomfort or tension in Gazvoda when discussing the triggering experiences in the past. Id. Dr. Lemmen opined “that Mr. Gazvoda can perform the essential functions of his position without regards to geographical location. By his report, and there is no evidence to the contrary, he did not have difficulties on the job when he was in Laredo, Texas.” Dr. Lemmen acknowledged that “it is certainly possible that he would again have symptoms” if he returned to Laredo, but suggested that “they would likely be attenuated relative to his prior experience.” Id. at 9. He concluded that a return to Laredo was very unlikely to produce symptoms that would “cause [Gazvoda] to be unable to perform his job in a safe manner.” Id.

         On November 16, 2015, CBP revoked Gazvoda's administrative leave and ordered him to report to Laredo, Texas. Nov. 16, 2015, Order Rep., ECF No. 63, Ex. 9. The order relied upon Dr. Lemmen's finding that Gazvoda could perform the duties of a border patrol agent without regard to geographic location. Id. Gazvoda alleges that, upon receiving the order to report to duty, his PTSD symptoms were aggravated and he sought emergency medical treatment. Compl. at 9. He further alleges that he received a doctor's order not to report to Laredo. Id. He relies upon ECF No. 46, Ex. G, to support these contentions, but the referenced document simply asserts that Gazvoda “may return to work on 11/20/15” and does not identify the medical issues causing the work restrictions or mention Laredo, Texas. Id. Regardless, Gazvoda has not reported to Laredo to this day. Gazvoda Dep. at 67. Gazvoda filed this suit on November 21, 2015 and sought a temporary injunction or preliminary restraining order relieving him of the duty to report.

         On January 5, 2016, Mr. Martinez sent Gazvoda a letter stating that “it appears that your impairments may substantially limit the major life activities of sleeping, concentrating, and thinking.” Martinez Jan. 5, 2016, Letter at 2. But Mr. Martinez explained that “due to the operational needs of the Border Patrol in Laredo Sector, your request to transfer to Michigan poses an undue hardship.” Id. Gazvoda's request for an accommodation was thus denied.

         In his deposition, Mario Martinez provided additional details regarding his denial of Gazvoda's request for a reasonable accommodation. When asked to list the reasons he denied the request, Mr. Martinez explained that “there are a few.” Martinez Dep. at 35, ECF No. 64, Ex. 17. He referenced the fact that Gazvoda refused to seek treatment or take medications while in Laredo. He also mentioned that Gazvoda had engaged in military-type activities while in Michigan, but had not experienced exacerbation of his PTSD symptoms. Id. at 36. Mr. Martinez opined that, Gazvoda had simply been suffering from “culture shock” in Laredo, which many new agents experience. Id. Mr. Martinez also faulted Gazvoda for apparently seeking an accommodation only to Michigan. Mr. Martinez explained that he had a great demand for border patrol agents in the Laredo area[8] and that there were a number of rural areas along the border in Texas where Gazvoda could have been assigned. But, according to Mr. Martinez, Gazvoda did not put those options on the table. Id. at 37-38. There is no indication that CBP ever offered alternative accommodations.


         In March 2012, soon after Gazvoda moved back to Michigan from Texas, he rejoined the Michigan National Guard. Gazvoda Dep. at 32-33. A prerequisite for joining the Guard is the ability to be deployed overseas. At his deposition, Gazvoda was asked: “[I]n March 2012 when you switched back to the Michigan National Guard, were you deployable at the time?” Id. at 33. Gazvoda replied: “Yes.” Id. Gazvoda was then asked if, in March 2012, he could have been deployed to Afghanistan, and Gazvoda confirmed that he would have been able to handle the deployment. Id. As part of his National Guard duties, Gazvoda traveled to Oklahoma, Minnesota, and Alabama. Id. at 25-26, 34, 69. At his deposition, Gazvoda indicated that those short trips did not trigger any PTSD symptoms. Id. While in the National Guard, Gazvoda served for a period of time as a counter-IED instructor. National Guard Eval. at 1-2, ECF No. 64, Ex. 18. See also Intel. Decisions App. at 3, ECF No. 64, Ex. 19. In an evaluation of Gazvoda's service, Gazvoda was found to be “mentally, physically and emotionally ready to lead in combat.” Id. at 2.

         On October 26, 2012, Gazvoda was offered a full-time position with Intelligent Decisions, Inc. Intel. Decisions App. at 12. Gazvoda was hired as a “Training and Simulation Trainer.” Id. In that position, Gazvoda used virtual reality software to train soldiers to, among other things, detect IEDs and clear routes. Gazvoda Dep. at 72-73. From November 2014 to February 2015, Gazvoda worked as a counter-IED instructor for Booz Allen Hamilton. Id. at 55- 57. In his deposition, Gazvoda did not suggest that any of these employment activities triggered his PTSD.


         As mentioned above, Gazvoda sustained a back injury and knee injury before being hired by CBP. Both were disclosed to CBP and did not prevent him from performing duties as a border patrol agent. Martinez Dep. at 41-42. Over the years, Gazvoda has suffered periodic back pain which occasionally results in temporary physical restrictions. See Phys. Restr. Rec. 1-4, ECF No. 64, Ex. 22 (documenting flare-ups in 2004, 2005, and 2007). In 2013, he was diagnosed with “stable mild . . . degenerative disc disease.” Saginaw Med. Rec. at 2, ECF No. 64, Ex. 20. In 2015, he was diagnosed with “mild degenerative arthritis” in his right hip. Id. at 18.

         In December of 2013, a physician completed a “Physical Restrictions and Limitation Form” which indicated that Gazvoda had been diagnosed with degenerative disc disease and had a number of physical restrictions. 2013 Phys. Restr. Form, ECF No. 64, Ex. 22. Among other limitations, that form indicated that Gazvoda could not carry or fire a weapon, could not ride in a military vehicle for 12 hours, and could not move forty pounds while wearing normal protective gear. Id. The form indicates that the “condition” was permanent, but was ambiguous regarding whether that meant the restrictions were permanent, or only the diagnosis of degenerative disc disease. Id. The form was provided to the National Guard.

         On January 19, 2016, and October 13, 2016, two more physical restriction forms were completed and provided to the National Guard. See 2016 Phys. Restr. Forms, ECF No. 64, Ex. 22. The January report diagnosed degenerative disc disease, while the October report diagnosed lower back pain. Both reports indicated that Gazvoda had several physical restrictions, including the inability to ride in a vehicle for 12 hours or carry a forty pound duffel bag. Once again, the forms indicated that the “condition” was permanent. On February 28, 2017, Dr. James Byatt, who completed the January 19, 2016, form, wrote a letter indicating that the degenerative disc disease ...

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