Posted on Saturday, March 01, 2003 at 12:00PM

Agent Ricardo Salazar is an 11-year veteran of the U.S. Border Patrol assigned to the San Diego Sector. The first eight years of Salazar’s career with the Border Patrol was unremarkable from a discipline standpoint, and he was consistently rated by his supervisors as either “outstanding” or “fully successful” on his performance appraisals.

On August 2, 1999, Salazar was assigned to a “stillwatch” position near Campo, California, a rural community east of San Diego. A “stillwatch” assignment requires the agent to park his or her vehicle at an assigned location along the border and to stay in or near the vehicle for the agent’s entire 10-hour shift as a visual deterrent to undocumented aliens who may try to cross into the United States from south of the border. Supervisors and fellow agents oftentimes visit agents assigned to “stillwatch” positions to provide relief and some much needed human contact. Towards the end of his shift on August 2, 1999, Salazar was found asleep behind the wheel of his parked service vehicle.

Shortly after the incident, the Border Patrol proposed to suspend Salazar for 15 days for his sleeping on duty. Unable to find any reason why he would doze off on-duty but for the fact that he must have been tired that day and determined to accept responsibility for his actions, Salazar accepted the 15-day suspension and did not pursue an appeal.

After serving his suspension and returning to work, Salazar visited his personal physician for a routine physical. During his physical, the doctor noticed Salazar had an irregular pattern of breathing and asked him if he had troubling breathing at night, snored loudly, regularly felt lethargic or had ever fallen asleep for no reason. Salazar answered yes to all of the doctor’s questions and the doctor explained that Salazar might have obstructive sleep apnea. After running a series of tests, the doctor determined that Salazar did in fact have obstructive sleep apnea and prescribed a medication to help keep his airway clear throughout the night.

Sleep apnea is a disorder in which the patient physically stops breathing a number of times during the night. The body’s defense mechanisms, sensing a lack of oxygen send a signal to the patient’s brain to wake up. The patient wakes up, starts breathing again and goes back to sleep. Depending on the severity of the patient’s condition, this cycle of interrupted breathing, waking and falling back asleep may happen hundreds of times a night without the patient being aware of what is happening. The result is that when the patient is awake during the day, he or she is more likely to fall asleep unexpectedly as a result of constantly being tired. The patient usually wakes up without any recollection of being asleep.

After the incident, believing that they simply had an agent on their hands that liked to catch a quick nap during on-duty time, Salazar’s supervisors kept a close eye on him. Salazar was not concerned because he knew that the medication his doctor had prescribed was successful in treating his condition… or so he thought.

On August 3, 2000, a year and a day after the first incident of sleeping on duty, Salazar was assigned to work as the desk officer in the station’s processing area. During that shift, Salazar was found sitting in his chair with his head tilted back and his eyes closed. His supervisors determined that Salazar had fallen asleep on duty, wrote up their reports and forwarded the reports to Sector management requesting that disciplinary action be taken. Salazar went to his doctor the very next day and advised his doctor of what had happened. The doctor arranged for Salazar to participate in a sleep study program in which the patient sleeps at the study facility and is videotaped and monitored while sleeping. Salazar participated in the sleep study and the study doctors determined that he needed surgery to correct his breathing problems in order to alleviate his sleep apnea condition. In the interim, the doctors prescribed a breathing machine for Salazar to use at night until his surgery could be scheduled.

In December 2000, despite advising his supervisors of his medical condition and the steps he was taking to alleviate the problem, the Border Patrol proposed to terminate Salazar in response to the second sleeping incident. Salazar contacted the Legal Defense Fund and was referred to the law firm of Gattey Baranic LLP. Salazar was represented by LDF panel attorney Michael Baranic and, on January 17, 2001, presented his oral response to the termination proposal to the deputy chief patrol agent.

On July 12, 2001, almost six months after presenting his oral response, Salazar was served with the decision letter reducing the termination proposal to a 30-day suspension. After receiving authorization from the National Border Patrol Council, Local 1613, and the LDF, Salazar’s suspension was appealed to arbitration. After numerous failed settlement discussions, Salazar’s case came to a hearing before Arbitrator Thomas Angelo on September 4, 2002.

Minutes before the hearing was set to begin, the parties engaged in one last round of settlement discussions and Salazar offered to accept a 14-day suspension for the second sleeping incident. The Border Patrol refused to budge from the 30-day suspension. After about six hours of the hearing, the arbitrator offered to go off the record and give the parties his current assessment of the case in hopes of encouraging the parties to settle the case without prolonging the hearing and incurring any additional costs associated with hearing transcripts, post-hearing briefs and additional arbitrator expenses.

After hearing the arbitrator’s assessment of the case, Salazar determined that he was no longer willing to accept even a 14-day suspension to settle the case as he had offered to do just hours earlier. Being in a much better bargaining position now, Salazar offered to accept a seven day suspension with the agreement that the suspension could not be used or cited as prior discipline in any future case against him. This time, Salazar refused to budge from his seven day offer and, after numerous discussions between management and their representatives, the Border Patrol finally relented and agreed to settle the case on Salazar’s terms.

Salazar is extremely grateful to the LDF for assisting him in fighting what had started out as a termination case and most likely the end of his career in law enforcement.
LDF Panel Attorney Michael Baranic is a partner in the law firm of Gattey Baranic LLP and is admitted to practice in California, Arizona and the District of Columbia.

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