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Velasquez v. Nielsen

United States District Court, D. New Mexico

July 30, 2018

GARY J. VELASQUEZ, Plaintiff,
v.
KIRSTJEN M. NIELSEN, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, [1] 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

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         THIS 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.

         I. Background

         Plaintiff 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].

         On 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].

         II. Allegations of the 2016 Complaint

         The 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.

         On 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.

         Plaintiff 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.

         On June 21, 2011, Defendant proposed Plaintiff's removal from CPB because of physical disability. Id., ¶ 23. For fear of being terminated, he took disability. Id., ¶ 24.

         Plaintiff's 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.

         In 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.

         In 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.

         Plaintiff 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., ¶ 35.

         III. ...


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