Gazvoda v. Homeland Security, Secretary of et al

Filing 57

ORDER Denying 52 Motion for Protective Order. 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.
_______________________________________/
ORDER DENYING MOTION FOR PROTECTIVE ORDER
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.
I.
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.
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.

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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.
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.
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, they concluded that the presence of dark-

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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 19, 2015 by a Board Certified Psychiatrist that does not recommend
that he return to Laredo:
I continue to support the paragragh below:
“The patient had experiences outside the realm of usual human experiences and
developed classic symptoms of PTSD including hyper-autonomic symptoms, fear,
hypervigilance, exaggerated startle, reliving previous experiences, dreams and
nightmares, difficulty controlling her feelings with tense and anxiety, losing
interest in previously enjoyed activities with reduction in sleep and subsequent
difficulties with attention and concentration. In my opinion clear relationship
between job location placement, with unfamiliar and densely populated area, and
exacerbation of his symptoms and continued deleterious affect, anticipation
anxiety continues regarding uncertainty of future. I would support that it would
not be in his best interest to return to that particular assignment. He will continue
with his VA treatment. He has had reviewed the VA crisis access mechanism
including the handout with inpatient psychiatric resources, local phone numbers.
We have also reviewed the medication list is accurate and he will continue
treatment with his current VA provider. I not only support the diagnosis of PTSD,
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but also support hardship transfer back to northern area where there are less
environmental triggers, more familarity.”
See May 19, 2015 Swabash Letter, Pl.’s Compl., Ex. B, ECF No. 1-3 (sic throughout). 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
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.

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On March 27, 2015, Gazvoda received a letter advising him that he had three options
available to him since he had exhausted his leave.1 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. 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
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.
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
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.

1

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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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. This suit was filed on November 21, 2015. ECF No. 1.
II.
Federal Rule of Civil Procedure 26(b)(1) as effective on December 1, 2015 provides:
Unless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties relative access to relevant information, the parties’

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resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Id. The rule’s previous language allowing discovery of relevant but inadmissible information
that appeared “reasonably calculated to lead to the discovery of admissible evidence” has been
eliminated from the new rule to address concerns that the exception was swallowing the
limitations placed on the scope of discovery. See Rule 26, 2015 Advisory Committee Notes. If
a party believes that the opposing party is using discovery in an attempt to annoy, embarrass,
oppress, or create undue burden or expense, then that party may move for a protective order
under Rule 26(c)(1). If the moving party shows good cause, then a court may forbid the
challenged disclosure or discovery. See Rule 26(c)(1)(A).
Pursuant to Rule 26(b)(2)(C), “the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Id.
When, as here, “an objection to the relevance of the sought discovery is raised, ‘the party
seeking discovery must demonstrate that the requests are relevant to the claims or defenses in the
pending action.’” First Horizon Nat'l Corp. v. Houston Cas. Co., No. 2:15-CV-2235-SHL-DKV,
2016 WL 5869580, at *4 (W.D. Tenn. Oct. 5, 2016) (quoting Anderson v. Dillard's, Inc., 251
F.R.D. 307, 309-10 (W.D. Tenn. 2008)). If the party seeking discovery satisfies that burden, the
objecting party must show “why the request is unduly burdensome or otherwise not
discoverable.” Anderson, 251 F.R.D. at 310 (citations omitted). In ruling on the motion, the court
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must weigh the burden and expense of the discovery versus its likely benefit, as required by Rule
26(b)(1). And, of course, “[i]nformation . . . need not be admissible in evidence to be
discoverable.” Id.
III.
In their motion, Defendants request a protective order precluding the depositions of Drs.
Kirk Swabash, Robert Barger, and Craig Lemmen. Defendants argue that the only issue before
the Court “is 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). Defendants further argue that because the written opinions
of these doctors were already provided to CBP, deposing the doctors to reiterate the information
in those reports is “cumulative, unduly burdensome, and a waste of resources.” Id.
Defendants are correct that Gazvoda’s claim requires a showing that Defendants did not
make “reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A) (emphasis added).
Defendants, however, attempt to argue that because Gazvoda must prove that Defendants did not
make reasonable accommodations for known limitations, any additional medical testimony not
already provided to Defendants is irrelevant. In support of that argument, Defendants cite several
cases where courts denied FMLA and accommodation claims because the plaintiff had not
submitted adequate medical information to the employer to justify an accommodation. See Diaz
v. Transatlantic Bank, 367 F. App’x 93, 97 (11th Cir. 2010) (holding that the defendant’s reason
for dismissing the plaintiff was not a pretext because plaintiff did not provide defendant with
certain medical information); Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619 (10th Cir.

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1998) (holding that plaintiff’s refusal to provide requested medical information precluded
plaintiff from claiming that defendants failed to make a reasonable accommodation).
Neither case is instructive here. Diaz involved a summary judgment challenge to a
retaliation case. Templeton does involve a reasonable accommodation claim, but holds simply
that the plaintiff’s failure to provide requested medical information documenting a serious health
condition at the time the defendant chose to terminate her employment entitled the defendant to
summary judgment. But the question raised by a motion for summary judgment is dramatically
different than the question of whether discovery is relevant to the case. Defendants might
ultimately prevail on their argument that their denial of the accommodation was reasonable
based on the information known to them at the time. But, for purposes of relevancy during
discovery, that conclusion cannot be presumed. Rather, a piece of information is relevant if it
“bears on . . . any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351 (1978). See also United States ex rel. Shamesh v. CA, Inc., 314 F.R.D. 1, 8
(D.D.C. 2016) (holding that despite the amendment to Rule 26(b)(1), relevant information
includes all information that bears upon or could reasonably lead to other information that bears
upon “any party’s claim or defense.”).
Gazvoda argues that the depositions will produce relevant information because “Plaintiff
must prove (1) he is qualified individual with a disability; (2) he is qualified for the position
requested ‘despite his disability’ with or without reasonable accommodation; and (3) the
Government failed to provide reasonable accommodation for his known ‘mental limitations’
unless doing so would ‘pose an undue hardship’ on the government’s operations.” Pl. Resp. Br.
at 10, ECF No. 55 (quoting U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 396 (2002)).

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Additionally, Gazvoda bears the burden of establishing damages, should he prevail in his claim.2
In other words, testimony about Gazvoda’s medical condition now and at the time of the
accommodation request is relevant to other elements of Gazvoda’s claim, even if it is irrelevant
to the question of whether the documentation submitted to Defendants was sufficient to require
an accommodation. Thus, testimony about Gazvoda’s medical condition holds some relevance.
Because Gazvoda has shown he is seeking relevant information, Defendants bear the
burden of demonstrating that the information sought is unduly burdensome or expensive. In their
reply brief, Defendants attempt to meet this burden as to four different doctors.
A.
First, Defendants argue that the deposition of Dr. Haskin will not reveal relevant
information. Dr. Haskin is a psychologist who treated Gazvoda in March 2012 and who created a
written evaluation of Gazvoda that was provided to Defendants. Defendants argue that the “only
relevance Dr. Haskin could have to this case is his written evaluation.” Def. Reply. Br. at 3, ECF
No. 56. That is incorrect. Other elements of Gazvoda’s claim under the ADA include whether
Gazvoda is an individual with a disability under the Act and whether Gazvoda was otherwise
qualified for the job with or without a reasonable accommodation. U.S. Airways, Inc., 535 U.S.
at 396. The inquiry into whether Gazvoda was qualified is “‘an objective one.’” Crocker v.
Runyon, 207 F.3d 314, 319 (6th Cir. 2000) (quoting Burns v. City of Columbus, Dep’t of Pub.
Safety, 91 F.3d 836, 841 (6th Cir.1996)). Defendants cite Crocker for the proposition that a
plaintiff cannot introduce “subsequent testimony” of medical evaluators to demonstrate that he or
she was otherwise qualified. But the Crocker decision indicates that contemporaneous medical
evidence on this point is relevant even if not provided to Defendants at the time. See id. (“[F]or

2

The August 1, 2016, opinion and order noted that Gazvoda was potentially entitled to damages for humiliation,
embarrassment, and stigma if he prevails.

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Crocker to show that he was otherwise qualified for the position, he has to show that he could
have met the physical demands of the job. . . . Crocker offered no proof that he was physically
capable of performing the job at the time he was not hired. . . .) See also Holiday v. City of
Chattanooga, 206 F.3d 637, 644 (6th Cir. 2000) (mentioning contemporaneous medical evidence
that was not provided to the defendant as relevant to the question of whether the plaintiff was
qualified). As a doctor who evaluated Gazvoda, Dr. Haskin’s deposition could reveal
information that is relevant to Gazvoda’s qualifications. At this stage, Gazvoda need not show
that the information received from the deposition will all be relevant. Likewise, Gazvoda need
not show that information elicited will be admissible.
Dr. Haskin’s testimony is also potentially relevant on the issue of damages. Dr. Haskin
will presumably be able to speak to the issue of Gazvoda’s mental condition. As an evaluating
doctor, he may have relevant information regarding the impact the lack of an accommodation has
had on Gazvoda.
In short, Defendants have not conclusively shown that all of Dr. Haskin’s testimony will
inevitably be irrelevant. The Court cannot simply accept Defendants’ representations regarding
the issues and elements being contested. At the discovery stage, “relevancy” is construed
broadly. United States ex rel. Shamesh v. CA, Inc., 314 F.R.D. 1, 8 (D.D.C. 2016). Gazvoda has
demonstrated that the information sought falls within that broad scope. Furthermore, Defendants
have not demonstrated that conducting the deposition will result in undue burden. This
deposition is to be held in Northern Michigan. Government counsel is based in Detroit,
Michigan. Although Government counsel may have to spend several hours traveling to the
deposition, that burden is outweighed by the potential for relevant information.

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When the motion for a protective order was filed, only Dr. Haskin’s deposition had been
scheduled. However, Defendants also seek to preclude the anticipated depositions of Drs. Barger
and Swabash. The parties give little indication about what role these doctors play in the sequence
of events at issue in Gazvoda’s suit. However, Defendants indicate that reports by these doctors
were included in Gazvoda’s application to Defendants seeking a reassignment. Because Dr.
Barger and Dr. Swabash also apparently evaluated Gazvoda, depositions of those doctors are
likely to reveal relevant information for the same reason Dr. Haskin’s deposition likely will.
Accordingly, a protective order would be inappropriate at this stage.
B.
Finally, Defendants seek to preclude Gazvoda from deposing Dr. Lemmen. According to
Defendants, Dr. Lemmen “performed a psychiatric evaluation as part of Plaintiff’s Fitness for
Duty Examination.” Def. Reply Br. at 6. Plaintiffs seek to depose Dr. Lemmen to “‘ensure that
the Government’s interpretation of his medical opinion is correct.’” Id. Defendants argue that
this kind of testimony is irrelevant, citing Pesterfield v. Tennessee Valley Auth., 941 F.2d 437,
442 (6th Cir. 1991). In Pesterfield, a physician testified in his deposition that the defendant had
misinterpreted a letter on the issue of whether the plaintiff was ready to return to work. Id. The
Court held that, even if defendant had misinterpreted the letter, the question was whether the
defendant had relied upon the letter in good faith. Id. at 443. Rather than justifying a protective
order, Pesterfield demonstrates the relevance of the testimony sought, for two reasons. First, the
physician in Pesterfield actually was deposed. Thus, Defendants are again confusing the question
of whether evidence will be sufficient for Gazvoda to prevail on the merits with the question of
whether the evidence is relevant. Second, testimony about a medical opinion is relevant to the
issue of whether an interpretation of that opinion is in good faith. Testimony by Dr. Lemmen

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regarding what he found during his evaluation and what he wrote in his report will inform the
analysis of whether that report was relied upon in good faith. Given the low standard for
relevancy at this stage, Gazvoda will be permitted to depose Dr. Lemmen.
IV.
Accordingly, it is ORDERED that Defendants’ motion for a protective order, ECF No.
52, is DENIED.

Dated: January 17, 2017

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 January 17, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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