Gazvoda v. Homeland Security, Secretary of et al

Filing 34

OPINION and ORDER Denying 30 Motion to Dismiss, Conditionally Granting 2 Motion for Preliminary Injunction, Enjoining Defendants, Directing Limited Discovery, Directing Supplemental Briefing, Denying 28 Motion to Strike, Granting 27 M OTION for Leave to File a Supplemental Brief and Accepting Supplemental Brief as Filed. Set Motion and R&R Deadlines/Hearings as to 2 Motion for Preliminary Injunction: (Plaintiff's Supplemental Brief due by 5/13/2016< /font>, Defendant's Response due by 5/20/2016, Plaintiff's Reply due by 5/27/2016) (Limited Discovery due by 5/6/2016) Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ANTHONY A. GAZVODA,
Plaintiff,
v.

Case No. 15-cv-14099
Honorable Thomas L. Ludington

SECRETARY OF HOMELAND SECURITY, and
COMMISSIONER OF UNITED STATES
CUSTOMS AND BORDER PROTECTION,
Defendants.
_______________________________________/
OPINION AND ORDER DENYING MOTION TO DISMISS, CONDITIONALLY
GRANTING MOTION FOR PRELIMINARY INJUNCTION, ENJOINING
DEFENDANTS, DIRECTING LIMITED DISCOVERY, DIRECTING SUPPLEMENTAL
BRIEFING, DENYING MOTION TO STRIKE, GRANTING MOTION FOR LEAVE TO
FILE SUPPLEMENTAL BRIEF AND ACCEPTING SUPPLEMENTAL BRIEF AS
FILED
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’s motion for a temporary restraining order 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. By the time of the hearing, both sides had extensively briefed Gazvoda’s
motion.

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.
I.
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.
A.
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.
B.

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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 to no avail. His symptoms gradually increased and he
was forced 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.
C.
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, 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

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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 19, 20151 by a Board Certified Psychiatrist that does not
recommend that he return to Laredo. See May 19, 2015 Letter from Dr. Kirk Swabash, Pl.’s
Compl., Ex. B, ECF No. 1-3. The conclusions and opinions of the medical professionals that
evaluated Gazvoda were communicated to Defendants in support of his request for a transfer to a
northern border station. Gazvoda specifically requested that he be transferred to a station in Sault
Ste. Marie, Michigan. The only reason for this request that Gazvoda provides is that it is near his
treating mental health care providers in Grayling. But Gazvoda does not offer any explanation
for why he sought out doctors in Grayling, Michigan, in the first instance.
D.
On January 9, 2015, Gazvoda requested reinstatement. He did not desire to be returned to
Laredo so he asked that he either be placed back on LWOP status (this was prior to his leave
being reclassified from AWOL to LWOP) or that he be “placed on a Temporary Duty Location
Assignment in Sault Ste [sic] Marie, MI.” Jan. 9 Reinstatement Req., ECF No. 17-6.
On January 21, 2015, the Agency denied Gazvoda’s request to be placed on LWOP status
or to be given temporary duty in Sault Ste. Marie. It did retroactively reclassify his AWOL status
as LWOP status but informed Gazvoda that going forward he would be placed on administrative
1

There is also a letter presented by Plaintiff that bears a facsimile timestamp from May 26, 2015. But since the
letter itself is undated, it is not possible to conclude whether the opinions predate or postdate the opinions in the
letter dated May 19, 2015.

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leave pending the completion of a fitness for duty examination. This was despite Gazvoda
having communicated the opinions of his evaluating doctors to Defendants. CBP directed
Gazvoda to attend an Independent Medical Evaluation (“IME”). Gazvoda believes that the
psychiatrist who conducted the IME has little or no experience with PTSD or working with
veterans. As a result, Gazvoda felt uncomfortable throughout the evaluation.2
On March 27, 2015, Gazvoda received a letter advising him that he had three options
available to him since he had exhausted his leave.3 These options were repeated in a letter sent to
Gazvoda on April 17, 2015. Gazvoda had the option of (1) returning to work; (2) requesting a
reasonable accommodation; or (3) resigning from his position. April 17, 2015 Letter, ECF No.
17-8. The letter advised:
If you choose option two (2) and intend to request a reasonable accommodation,
please contact the Privacy and Diversity (PDO) Servicing Officer for the Laredo
Border Patrol Sector:
Alicia Davila
PDO Officer
5219 McPherson, Suite 400
Laredo, Texas 78041
...
Please be advised that you may be obligated to provide an interactive evaluation
and accommodation recommendation from your treating health care provider
and/or provide a description of the accommodation requested, if known, and the
explanation of how it would enable you to perform your job.
Id. Gazvoda replied on April 21, 2015 that he wished to request a reasonable accommodation.
During this process, on April 1, 2015, Gazvoda requested a second compassionate
transfer. He repeated the issues that he has been having with his mental health and again
requested that he be transferred to Sault Ste. Marie. He noted that he is “supposed to offer three
2

Gazvoda has attempted to obtain the report of the IME, but has been unable to do so. He does not explain the
steps he has taken to obtain the report, however, merely that CBP has been uncooperative.
3

The March 27, 2015 letter is not in the record but is referenced in an April 17, 2015 letter, which is.

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locations for duty relocation but [he] now know[s his] condition does not warrant this.” April 1,
2015 Transfer Req., ECF No. 26-4.
Gazvoda’s second request for a compassionate transfer was denied on July 14, 2015 but,
due to what Defendants claim was a clerical error, was not communicated to him in writing until
January 7, 2016.
Gazvoda’s request for a reasonable accommodation was denied on January 5, 2016. The
letter denying that request stated that “you may also contest this action through one of the
avenues outlined below. Your election will be considered final on the date any grievance or
formal EEO complaint is filed.” Accommodation Denial Letter, ECF No. 26-6. The letter gave
Gazvoda two options for contesting the denial. He could file a grievance under the Collective
Bargaining Agreement or he could file a claim under the Equal Employment Opportunity
process. With respect to the latter, the letter provided:
2). If you believe you have been discriminated against, you have the right to file
an EEO complaint within forty-five (45) calendar days of the receipt of this letter.
Filing a reconsideration request or a grievance, as noted above, does not extend
the time limits for initiating a complaint of discrimination and does not satisfy the
requirements for filing a claim under the EEO complaint process. EEO counseling
may be requested by contacting the Privacy and Diversity Office EEO Complaint
Intake Hotline . . . , by submitting a Request for EEO Counseling at
www.cbp.gov/eeo, or by contacting your servicing DCR Officer Alicia Davila . . .
Id.
Gazvoda never filed an EEO complaint because he initiated the present action in
November of 2015.
E.
On November 16, 2015, Gazvoda received a letter from CBP informing him that he has
been deemed fit for duty following his IME. See November 16, 2015 CBP Letter, Ex. F, ECF

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No. 1-7. Furthermore, the IME concluded that Gazvoda was not disabled and was capable of
working at the Laredo border station without accommodation. Gazvoda was directed
. . . to report directly to Jerry Doyal, Deputy Patrol Agent in Charge of the Laredo
North Station on Monday, November 23, 2015 at 8:00 a.m. at the Laredo North
Station in Laredo, Texas, where you will transition into the full range and scope
of a Border Patrol Agent over a period not expected to last more than four weeks.
Id. Gazvoda was further cautioned that “failure to report to the Laredo North Station as directed
above may result in your placement on Absent Without Leave (AWOL). Please be advised that
being AWOL and/or your failure to report to duty may result in disciplinary action up to and
including removal from Federal employment.” Id. The letter made no mention of his pending
request for a reasonable accommodation or his request for a compassionate transfer.
After receiving this notice, Gazvoda’s PTSD symptoms began anew, despite having
“largely been under control as a result of medication and treatment.” Pl.’s Compl. ¶ 28, ECF No.
1. His symptoms became increasingly severe to the point that he “sought emergency treatment at
Mid-Michigan Medical Center” in Midland, Michigan on November 20, 2015. Id. at ¶ 29-30.
The physician that treated Gazvoda signed a work release form ordering that Gazvoda could not
travel or undergo strenuous activity until he was cleared by a physician. See Work Release Form,
Ex. G, ECF No. 1-8. Gazvoda provided this form to CBP and was informed that it was
insufficient. CBP told him that he would still need to report to Laredo by 8:00 a.m. on November
23, 2015 or he would be listed as AWOL. Pl.’s Compl. ¶ 32, ECF No. 1. Gazvoda alleges that
“[t]his situation has caused Plaintiff severe emotional distress, anxiety, and chest pain, and he is
not mentally, emotionally, or physically capable of relocating to Laredo, TX by Monday
November 23, 2015.” Id. at ¶ 33. Gazvoda does not represent that he did indeed report to Laredo
on Monday November 23, 2015. He filed his request for a temporary restraining order at 7:30
p.m. on Sunday November 22, 2015.
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II.
Defendants motion to dismiss claims that Gazvoda did not exhaust the administrative
procedures available to him because he did not file a claim of discrimination with the Agency’s
EEO office. Additionally, it argues that the relief Gazvoda seeks—to be moved away from the
southern border—is violative of Agency policy because it discriminates against certain races and
ethnicities.
A.
This Court may dismiss a pleading for “failure to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). A pleading fails to state a claim if it does not contain
allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in
the non-movant’s favor and accepts the allegations of facts therein as true. See Lambert v.
Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The pleader need not have provided “detailed
factual allegations” to survive dismissal, but the “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570).
B.
Defendants claim that Gazvoda did not exhaust his administrative remedies because he
did not initiate the EEO process in accordance with 29 C.F.R. § 1614.105. That regulation
provides:

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(a) Aggrieved persons who believe they have been discriminated against on the
basis of race, color, religion, sex, national origin, age, disability, or genetic
information must consult a Counselor prior to filing a complaint in order to try to
informally resolve the matter.
(1) An aggrieved person must initiate contact with a Counselor within 45
days of the date of the matter alleged to be discriminatory or, in the case of
personnel action, within 45 days of the effective date of the action.
(2) The agency or the Commission shall extend the 45–day time limit in
paragraph (a)(1) of this section when the individual shows that he or she
was not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have been known
that the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or her
control from contacting the counselor within the time limits, or for other
reasons considered sufficient by the agency or the Commission.
29 C.F.R. § 1614.105. The Sixth Circuit has adopted the EEOC’s three requirements for
“initiat[ing] contact with a Counselor.” Id. “[A]n employee must (1) contact an agency official
logically connected with the EEO process, even if that official is not an EEO counselor; (2)
exhibit an intent to begin the EEO process; and (3) allege that an incident in question is based on
discrimination. Johnson v. Cohen, 6 F. App’x 308, 311 (6th Cir. 2001) (quoting Pauling v.
Secretary of the Dep’t of Interior, 960 F.Supp. 793, 803 (S.D.N.Y.1997).
While Gazvoda has engaged in at least three different attempts at obtaining a transfer to
Michigan, he did not, at any point, meet these three criteria. Primarily, he did not notify Customs
and Border Protection that be believed the denials of his compassionate transfer and
accommodation requests were based on discrimination.4 For this reason, Gazvoda’s claims
should be dismissed for failure to exhaust administrative remedies.
Gazvoda argues in the alternative, however, that exercising his administrative remedies
would be futile because forcing him to return to the Agency would cause him irreparable harm
4

It is also debatable that Gazvoda “exhibit[ed] an intent to begin the EEO process.” The parties offer a number
of different arguments on this point but it is moot in light of the fact that Gazvoda did not alert the Agency that he
believed he had been discriminated against.

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and the process would not grant him effective relief. To demonstrate futility, Gazvoda “must
show that it is certain that his claim will be denied on appeal, not merely that he doubts that an
appeal will result in a different decision.” Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410,
419-20 (6th Cir. 1998) (internal quotation marks and citations omitted).5
It is evident that Gazvoda’s attempt to resolve this issue administratively would be futile
and would result in yet another denial. After Gazvoda’s most recent request for a compassionate
transfer was denied, he was notified of the option to seek a reasonable accommodation. When he
elected to do so, the Agency’s EEO office engaged Gazvoda in a process focused on how his
mental health condition affected his ability to perform as a border patrol officer in Laredo,
Texas. Indeed, it is Gazvoda’s mental health condition that forms the basis of his discrimination
claim. Thus, unlike an individual that seeks accommodation and is denied and then claims that
the denial was based on discrimination, the reason Gazvoda sought accommodation is because of
his claimed protected status. Subjecting Gazvoda to a discrimination investigation pursuant to 29
C.F.R. § 1614.108 would be needlessly duplicative of his original request for a compassionate
transfer and his subsequent request for a reasonable accommodation.6 Gazvoda’s discrimination
claim will allege that he is disabled from working in Laredo because of his PTSD, but that he is

5

Gazvoda argues that in Bowen v. City of New York, 476 U.S. 467, 483 (1986), the Supreme Court articulated a
rule that excused plaintiffs from exhausting administrative remedies where they are faced with irreparable harm. But
Bowen is not particularly apposite. Bowen was expanding on administrative exhaustion rules articulated in, Mathews
v. Eldridge, 424 U.S. 319 (1976). In Mathews, the Supreme Court addressed administrative exhaustion through postdeprivation hearings following the denial of benefits where the fact of the post-deprivation hearing violated the
plaintiff’s constitutional right to due process of law. Forcing the plaintiff to pursue administrative remedies would
result in the denial of the plaintiff’s constitutional right to due process. In Bowen, the Court was addressing damage
that would be done to class action plaintiffs under an illegal policy, not discrete individual damage wrought by
erroneous determinations under a valid policy. That is, “the claimants . . . stood on an entirely different footing from
one arguing merely that an agency incorrectly applied its regulation in denying benefits.” Manakee Prof'l Med.
Transfer Serv., Inc. v. Shalala, 71 F.3d 574, 580 (6th Cir. 1995). It is also unclear, based on Bowen, that the mere
threat of irreparable harm is sufficient to waive the exhaustion requirement, absent evidence that the procedure is
futility or that the non-administrative claim is collateral in nature.
6

It should be noted that the latter request was administered by the Customs and Border Protection’s EEO office,
the same entity he would engage if Gazvoda filed a claim of discrimination.

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not totally disabled because he can work with a reasonable accommodation if he is transferred to
Sault Ste. Marie, Michigan. This was his exact claim for a reasonable accommodation that was
denied by the Agency.
It should be noted that Gazvoda claims that the requested accommodation for his
disability on three different occasions: the two times he requested a compassionate transfer and
the one time he requested a reasonable accommodation. But no evidence supports the claim that
Gazvoda’s requests for a compassionate transfer amounted to claims of discrimination. In fact, as
just explained, his request for a reasonable accommodation does not, either. Gazvoda’s claim
that exhausting his administrative remedies is futile following the denial of his reasonable
accommodation request may proceed. Any claims predicated on the denials of his compassionate
transfer requests have not been properly exhausted at the administrative level.7
The only benefit to be gained from remanding to the Agency would be the development
of a dedicated administrative record. The parties have, however, provided copious
documentation early in this proceeding, making this point moot.
C.
Finally, Defendants seek dismissal because they claim that the relief Gazvoda seeks is
contrary to the policy of the Agency. Specifically, the fact that Gazvoda’s symptoms appear to
be exacerbated by being around people who speak a foreign language and are of a darker
complexion runs afoul of the Agency’s policy of non-discrimination on the basis of race and
ethnicity and fostering a diverse and inclusive workplace.

7

Gazvoda argues that it would be futile to return to the Agency to exhaust his requests for a compassionate
transfer. But the policy favoring waiver of the exhaustion requirement does not apply with the same force to his
compassionate transfer requests. Those requests were not reviewed with the same thoroughness as his request for a
reasonable accommodation and do not present the same record for review.

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Indeed, there is troubling evidence in the record that corroborates the fact that Gazvoda is
made uncomfortable by non-Caucasians that speak languages other than English. This fact may
raise legitimate concerns about the type of relief Gazvoda seeks and the Government’s policy of
non-discrimination and inclusiveness. But, at this stage, Gazvoda has provided sufficient
evidence in his pleadings, supported by treating doctors’ professional opinions, to demonstrate
that his mental condition is caused by the similarities between Laredo and his duty station in
Afghanistan. These include the hot summers, the arid desert climate, and dense urban areas.
Defendants challenge the validity of these similarities, but at the motion to dismiss stage they are
taken as true. Thus, excising the allegations about the ethnic demography of Laredo, Gazvoda
still states a sufficient claim to survive a challenge to his pleadings under Rule 12(b)(6).
Defendants’ motion will be denied.
III.
Gazvoda initially moved for a temporary restraining order and a preliminary injunction.
Because his motion was filed ex parte, only his request for a temporary restraining order could
be considered. Since service has been directed and briefing completed, Gazvoda’s request for a
preliminary injunction may be considered.
A.
Four factors govern whether the Court will issue a preliminary injunction: (1) whether the
plaintiff has demonstrated a substantial likelihood of success on the merits; (2) whether there is a
threat of irreparable harm to the plaintiff; (3) whether issuance of the injunction would harm
others; and (4) whether the public interest is served by granting injunctive relief. Hamilton’s
Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007) (citation omitted); see also Ne.
Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999,

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1009 (6th Cir. 2006). “These factors are not prerequisites, but are factors that are to be balanced
against each other.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th
Cir. 2002) (citations omitted).
B.
In the Court’s opinion denying Gazvoda’s motion for a temporary restraining order, the
balance of equities weighed against granting injunctive relief. In light of the hearing on
Gazvoda’s motion for a preliminary injunction and more complete briefing, those equities have
shifted. Primarily, the two issues that must be reevaluated are whether Gazvoda will succeed on
the merits of his claim and if Gazvoda will suffer irreparable harm.8
1.
As explained in the Court’s November 25 Opinion, “before Gazvoda can stake a claim to
a position other than the one to which he has been assigned and declare such a move a reasonable
accommodation, he must demonstrate that there is a vacant, accommodating position.” Nov. 25
Op. & Order 10, ECF No. 5. Defendants argued at the motion hearing that there were no
openings in the Sault Ste. Marie or Port Huron stations, meaning Gazvoda’s accommodation
request could not be granted. An employer cannot reasonably accommodate an individual
requesting a transfer if there is no open position available at the time the employee makes the
request. See, e.g., Hoskins v. Oakland Cty. Sheriff’s Dep’t, 227 F.3d 719, 729 (6th Cir. 2000)
(explaining that a requested position must be available at the time of transfer or “become vacant
within a reasonable amount of time”). Defendants included a declaration from Mario Martinez,
the Chief Patrol Agent for the U.S. Border Patrol, Laredo Sector. Martinez Decl., ECF No. 26-7.
Martinez was the Chief Patrol Agent for the Detroit Sector during the period in which Gazvoda
8

The final two factors—whether others will be harmed by injunctive relief and whether the public interest is
served by injunctive relief—were deemed to be neutral and remain so today.

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requested a reasonable accommodation. Id. at ¶ 2. The Detroit Sector includes the Sault Ste.
Marie and Port Huron stations. Martinez explained that there were no vacant positions at either
station at the time Gazvoda made his accommodation request on April 21, 2015. Id. at ¶¶ 3 & 4.
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. If he cannot do this, a preliminary injunction is not
warranted. If he can, a preliminary injunction likely would be warranted and the burden on the
merits would shift to Defendants to demonstrate that the “a proposed accommodation will
impose an undue hardship upon the [Agency].” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d
862, 869 (6th Cir. 2007) (quoting Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 452 (6th Cir.
2004)).
In view of this crucial issue, a preliminary injunction will be imposed for one month.
During that month the parties shall conduct discovery on the availability of any positions in the
Sault Ste. Marie and Port Huron stations at the time of and reasonably after Gazvoda’s April 21,
2015 request for a reasonable accommodation. Any discovery beyond this scope is prohibited.
Following the limited discovery period Gazvoda will submit a supplemental brief on the
availability of positions at the Sault Ste. Marie and Port Huron stations during the relevant time
period. Gazvoda’s brief should not exceed five pages in length. Defendants shall submit a
response brief of no more than five pages within seven days of Gazvoda’s brief being filed.
Gazvoda may file a reply that does not exceed five pages.
B.
Finally, the conclusion that Gazvoda will not be irreparably harmed if an injunction is not
imposed must be revisited. The November 24 Opinion concluded that for the purposes of such

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extraordinary relief as an ex parte temporary restraining order, Gazvoda could not sufficiently
demonstrate irreparable harm. Since that time, however, Gazvoda’s second request for a
compassionate transfer and his request for a reasonable accommodation have been conclusively
denied. See Jan. 7 Letter, ECF No. 26-5; Jan. 5 Letter, ECF No. 26-6. Thus, Gazvoda faces the
imminent prospect of being forced back to work or being forced to incur AWOL status. While
the ultimate prospect of termination is readily compensable by monetary damages, at least one
court has recognized that “the irreparable harm associated with disability discrimination and the
correlative stigma which attaches to its victims” is not. See Sunrise Dev., Inc. v. Town of
Huntington, New York, 62 F. Supp. 2d 762, 779 (E.D.N.Y. 1999).
But, assuming without deciding that Gazvoda’s harm could be deemed irreparable, it
would presume the fact of discrimination. That fact is inextricably intertwined with the question
of whether Defendants could actually reasonably accommodate Gazvoda. That question will be
answered by the discovery ordered above. Gazvoda’s claim of irreparable harm is, currently,
insufficient to sustain or defeat his request for a preliminary injunction and will be revisited
following the limited discovery period.
IV.
Lastly, during the briefing on Gazvoda’s motion for a preliminary injunction, he filed a
motion to strike the independent medical examination performed by Dr. Craig Lemmen. Dr.
Lemmen was retained by Defendants to perform an IME while Gazvoda’s reasonable
accommodation request was pending. Gazvoda argues that Dr. Lemmen is not a properly
qualified expert under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Federal
Rule of Evidence 702.

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Defendants have not suggested the Dr. Lemmen is an expert and no schedule has been set
for expert discovery. To the extent Gazvoda feels prejudiced by Dr. Lemmen’s opinions and the
foundation on which they rest, he may argue against their persuasiveness, as he has done.
Otherwise, a motion under Daubert and Rule 702 is premature and will be denied.
V.
Accordingly, it is ORDERED that Defendants’ Motion to Dismiss, ECF No. 30, is
DENIED.
It is further ORDERED that Plaintiff Anthony Gazvoda’s Motion for a Preliminary
Injunction, ECF No. 2, is CONDITIONALLY GRANTED.
It is further ORDERED that Defendants are ENJOINED from directing Gazvoda to
report for duty at the Laredo, Texas Border Patrol Station, marking him as AWOL, terminating
his employment, or otherwise disciplining him in connection with his failure to report to the
Laredo, Texas Border Patrol Station until further order of this Court.
It is further ORDERED that the parties are DIRECTED to engage in discovery, limited
to discovering if any border patrol positions were available at the Sault Ste. Marie or Port Huron
border patrol stations from the time Gazvoda sought a reasonable accommodation, to the time it
was denied, and for a reasonable period thereafter.
It is further ORDERED that limited discovery CLOSES on May 6, 2016.
It is further ORDERED that the parties are DIRECTED to submit supplemental briefs,
to Plaintiff Anthony Gazvoda’s motion for a preliminary injunction addressing the availability of
positions at the Sault Ste. Marie and Port Huron border patrol stations during the relevant time
period. The briefs shall be submitted as follows:
Plaintiff’s 5-page Supplemental Brief:

May 13, 2016

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Defendant’s 5-page Response Brief:

May 20, 2016

Plaintiff’s 5-page Reply Brief:

May 27, 2016

It is further ORDERED that Plaintiff Anthony Gazvoda’s motion to strike, ECF No. 28,
is DENIED.
It is further ORDERED that Plaintiff Anthony Gazvoda’s motion for leave to file a
supplemental brief, ECF No. 27, is GRANTED and the brief is ACCEPTED as filed.
Dated: April 7, 2016

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on April 7, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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