United States District Court, D. New Mexico
GARY J. VELASQUEZ, Plaintiff,
KIRSTJEN M. NIELSEN, SECRETARY, DEPARTMENT OF HOMELAND SECURITY,  Defendant.
Jonathan H. Huerta, Roberto D. Ortega Attorney for Plaintiff,
Gary J. Velasquez
Roberto D. Ortega ASSISTANT UNITED STATES ATTORNEY Attorney
for the United States
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant's Motion to
Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). [Doc. 8]. The
Court, having considered the Motion, briefs, relevant law and
being otherwise fully informed, finds that the Motion is
well-taken and will be granted.
Gary J. Velasquez is a former Course Developer/Instructor at
the Supervisory Border Patrol Agency for the Department of
Homeland Security (“DHS”). After an embolic
stroke, he was ordered to submit to a fitness for duty
examination, found to be unfit for duty based on cognitive
impairment, and asked to accept a separation. Ultimately, he
elected to take disability retirement. Plaintiff filed an EEO
Discrimination Complaint against DHS on June 7, 2011, and,
after receiving a Final Agency Decision, filed a Complaint
against DHS in this Court on March 14, 2012, in Case No.
12-CV-641-MCA (hereafter, the “2012 Case”). By
agreement of the parties, the case was dismissed with
prejudice on September 18, 2013. [2012 Case, Doc. 30].
December 16, 2016, Plaintiff filed the instant suit against
DHS (“2016 Complaint”) in this Court, based on
the same facts that gave rise to the first case. DHS filed a
Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6),
asserting (1) Plaintiff has alleged no facts supporting his
claim of age discrimination in Count 1; (2) Plaintiff's
lawsuit was not commenced within the time prescribed by the
applicable statute and EEOC regulations; and (3)
Plaintiff's claims are barred by the doctrine of res
judicata. [Doc. 8].
Allegations of the 2016 Complaint
2016 Complaint alleges that Plaintiff is a disabled male, a
citizen of the United States and a resident of Roswell, New
Mexico. [Doc. 1, ¶ 6]. He was formerly a Supervisory
Border Patrol Agency (BPA), GS-1896-13, and worked as a
Course Developer/Instructor (CD/I) at the Office of Training
and Development at the Customs and Border Patrol's
(“CBP”) academy in Artesia, New Mexico.
Id., ¶ 12. Plaintiff suffered an embolic stroke
and could not return to duty under doctor's orders until
January 2009. Id., ¶ 13. He was released to
work on a light duty status in or around January 2009, and
was assigned as a CD/I to the academy in Artesia.
Id., ¶ 14. In or about November 2009, CBP
transferred him to El Centro Sector in Indio, California, on
light duty status. Id. On January 26, 2010,
Plaintiff was ordered to undergo a Fitness for Duty
Examination (“FFDE”). Id., ¶ 15. He
completed the FFDE on February 17, 2010; however,
Defendant's physicians were uncertain whether he had
cognitive impairments which would impede his abilities to
perform his duties. Id., ¶ 16.
April 18, 2010, Defendant reassigned Plaintiff to his
previous position at the U.S. Border Patrol Academy in
Artesia. Id., ¶ 17. He underwent a second FFDE
on May 7, 2010, where it was determined that he was not fit
for duty as a Supervisory BPA. Id., ¶ 18. On
July 1, 2010, Defendant revoked Plaintiff's authority to
carry a firearm. Id., ¶ 19. On January 4, 2011,
Defendant issued Plaintiff an Options Letter stating that it
could attempt to locate a position Defendant was qualified
for with his restrictions within the CPB, or that he could
apply for retirement disability. Id., ¶ 20.
was issued a Letter of Reprimand on February 22, 2011, for
Failure to Follow the Standard Physical Conditioning Program
Procedures. Id., ¶ 21. He initiated his rights
under the EEO process to file a complaint for physical
disability (cognitive impairment due to embolic stroke) and
for reprisal. Id., ¶ 22.
21, 2011, Defendant proposed Plaintiff's removal from CPB
because of physical disability. Id., ¶ 23. For
fear of being terminated, he took disability. Id.,
last day of work as a Border Patrol Agent was November 4,
2011. Id., ¶ 25. Id. He is currently
employed as a Physical Techniques Instructor at the Federal
Law Enforcement Training Center, DHS, Law Enforcement.
Id., ¶ 26.
Count One, Plaintiff alleges Defendant discriminated against
him because of his age and physical disability. Id.,
¶¶ 28-29. He contends that he was held to stricter
standards of performance and denied benefits of employment
accorded other employees. Id., ¶ 30.
Additionally, he asserts that he was treated dissimilarly
from other employees. Id., ¶ 31.
Count Two, Plaintiff alleges Defendant engaged in reprisal
and retaliation against him in violation of Title VII of the
Civil Rights Act and the Rehabilitation Act as a direct
result of his participation or assistance in prior EEOC
process. Id., ¶ 34.
seeks declaratory judgment that Defendant's acts violated
Title VII of the Civil Rights Act and the Rehabilitation Act
of 1964, as amended by the Civil Rights Act of 1991, 42
U.S.C. § 2000e, et seq. (“Title
VII”); and the Rehabilitation Act of 1973, as amended,
29 U.S.C. § 701, et seq., and the
Rehabilitation Act Amendments of 1992, Pub. L. No. 102-59
(Oct. 29, 1992) (“Rehabilitation Act”). He also
seeks compensatory damages, attorney's fees, court costs;
and prejudgment and post judgment interest. Id.,