Employment Law Daily Veteran with PTSD gets temporary relief in ongoing accommodation struggle
Wednesday, April 13, 2016

Veteran with PTSD gets temporary relief in ongoing accommodation struggle

By Brandi O. Brown, J.D. An Afghanistan War veteran with PTSD obtained temporary relief from an increasingly complicated leave situation when a federal district court in Michigan briefly enjoined his employer from marking him as AWOL, firing him, or otherwise disciplining him for not reporting to a Texas border patrol station. The employee had sought compassionate transfer, and then a reasonable accommodation, to allow him to work out of a Michigan patrol station instead. The parties were ordered to engage in limited discovery. Moreover, the employer's motion to dismiss was denied (Gazvoda v. Secretary of Homeland Security, April 7, 2016, Ludington, T.). Insomnia and panic attacks. After a 2009 deployment to Afghanistan, in which he engaged in firefights and witnessed many gruesome injuries to friends with whom he served, the employee returned to the United States and immediately experienced trouble sleeping. After receiving help, he thought he was free of those issues, but they returned when he began working for the United States Customs and Border Protection Agency. Specifically, a few months after he was stationed in Laredo, Texas, the employee began to experience panic attacks and insomnia, as well as anxiety and depression. He sought help but his symptoms continued to worsen. Ultimately he was forced to take unpaid administrative leave. He left Laredo and sought assistance at a VA hospital in Michigan. He took leave without pay thereafter. Eventually the employer classified him as Absent Without Leave, but it was later changed to paid administrative leave. PTSD diagnosis and transfer request. In 2012, the employee was diagnosed with PTSD and the medical professionals who examined him concluded that Laredo's environment was too similar to that in Afghanistan, including the presence of dark-skinned people who spoke in a foreign language. The physicians supported a "compassionate transfer" for the employee. His most recent evaluation repeated the recommendation that he not return to Laredo. In January 2015, the employee requested reinstatement and asked for either a temporary assignment to a station in Michigan or that he be placed back on leave without pay status. He was informed that he would be placed on administrative leave pending his completion of a fitness-for-duty exam. In March, he was told that he had three options: he could return to work; resign; or request a reasonable accommodation. He requested a reasonable accommodation. In July, he requested a second compassionate transfer, citing the same issues. In November, he was informed that he had been deemed fit for duty and was ordered to report to Laredo. He filed a cause of action in November and also filed for a temporary restraining order. In January 2016 his request for a reasonable accommodation was denied. He also learned that his second request for a compassionate transfer had been denied. Motion to dismiss denied. The employer moved to dismiss the employee's claims, arguing that he failed to exhaust the administrative procedures that were available to him. While it was true that he did not initiate the EEO process by notifying the employer that he believed the denials of his requests were based on discrimination, the court also agreed with the employee that exercising those remedies would have been futile. The process followed by the EEO office when he sought a reasonable accommodation based on his protected status was the same as what would have been followed if he had complained of discrimination and focused on the same underlying issues and facts. However, the court did note that the evidence did not support the claim that the employee's requests for a compassionate transfer amounted to discrimination claims. Finally, although troubled by the evidence in the record that the employee was uncomfortable with non-Caucasian people who speak non-English languages, which the court viewed as raising "legitimate concerns" about the type of relief he sought, it found he nevertheless stated a sufficient claim to survive a Rule 12(b)(6) motion. One-month preliminary injunction. As to his request for a preliminary injunction, the court concluded that the balance of equities had shifted since the time it denied the employee's motion for a temporary restraining order. Although a witness for the employer had attested that there were no openings at either the Sault Ste. Marie or Port Huron stations in April 2015, the court determined that a one-month preliminary injunction should be imposed in order for the parties to conduct discovery on the availability of such positions at that time and thereafter. After that period the parties should brief the matter. The court also revisited its earlier conclusion that the employee would not be irreparably harmed if no injunction issued. Since the time of the prior opinion, the employer had "conclusively denied" both the employee's second request for compassionate transfer and his request for a reasonable accommodation. Therefore, the court explained, the employee "faces the imminent prospect of being forced back to work or being forced to incur AWOL status."

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