The Texas Supreme Court has accepted a case which could have major implications for military reservists whose employment rights are violated by the state.
Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA) in 1994 to prevent discrimination against service members who leave their civilian jobs temporarily to perform military service. It tries to ensure their jobs will be waiting for them when they come back.
A lawsuit filed in 2017 in Nueces County accuses the Texas Department of Public Safety of violating that law as it pertains to an Army reservist. But there are questions about whether Texas can be held liable in USERRA cases filed in state court.
The petitioner, Le Roy Torres, enlisted in the U.S. Army Reserve in 1989. For 18 years, he served as a reservist while employed as a State Trooper for DPS. He was called to active duty and deployed to Iraq from 2007 to 2008.
While overseas, he developed severe breathing problems that he attributes to burn pit exposure. Torres was honorably discharged from the Reserves in 2008, and told DPS that he intended to return to work. But he alleges that the department failed to accommodate his reemployment after he returned.
“I was back home for about two weeks when I ended up in the ER with a really bad respiratory infection,” Torres said.
Post-deployment, Torres sought specialized medical care to address his worsening health issues, which included chronic cough, extreme fatigue, headaches and memory problems. Torres’ condition made it impossible for him to return to the job of DPS trooper — a law enforcement position that requires intermittent, vigorous physical activity.
DPS reinstated Torres to the payroll, placing him in a temporary administrative position in a drivers license office. But his health problems persisted without apparent remedy, and he often missed work. In August of 2010, Torres’ supervisor told him that he couldn’t return until he got some medical answers.
"Based on the unknowns, they sent me home,” Torres said.
A lung biopsy in late 2010 revealed constrictive bronchiolitis, a small airway disease that causes shortness of breath. During that same period, the Torres family was battling to get the Department of Veterans Affairs to acknowledge that the lung injury was service-connected.
Torres remained on leave from DPS without pay for about a year, during which he nearly lost his home and had to take out personal loans to stay afloat.
“It’s been a very difficult time,” he explained. “I’m still trying to catch up.”
He submitted a request for job modification to his chain of command at DPS in October 2011, but never heard back.
“They never gave me an answer,” Torres said. “No definitives. Nothing. All they could tell me was, 'It's probably best if you just take care of yourself.' In other words, ‘You need to resign.'”
Torres submitted his resignation to DPS in August 2012, after he was told that doing so was a necessary precursor to his medical retirement application being submitted to the state. That application was later denied.
Torres’ position is that DPS constructively discharged him — because he couldn’t work without the disability accommodations required by USERRA. He is seeking declaratory and monetary relief under the law, and maintains that DPS had an obligation to employ him in a more appropriate position at a level of seniority, pay and benefits commensurate with the time he spent employed by the department.
A representative from DPS said in an email that the department does not provide comment on pending litigation against it.
The merits of the case have yet to be weighed in court, as the case has been embroiled in debates over jurisdiction.
The 11th Amendment to the Constitution prohibits federal courts from hearing certain lawsuits against states. According to the National Constitution Center, the amendment has also “been interpreted to mean that state courts do not have to hear certain suits against the state, if those suits are based on federal law.”
In recent years, there has been disagreement over whether Congress can abrogate the sovereign immunity of states – or, more specifically, state government employers – in private USERRA cases.
After Torres’ suit was originally filed in Nueces County, DPS filed a motion to dismiss it, claiming that Texas was immune from such lawsuits in Texas State Court. When a judge denied that motion, DPS successfully appealed.
In a filing from March 2018, attorneys for the state argued the following:
“Texas retains its sovereign immunity from private suits for damages under the Uniform Services Employment and Reemployment Rights Act (“USERRA”) because Congress has no authority under its War Powers to abrogate state sovereign immunity to private suits for damages in state court, and Appellee’s assertions to the contrary are mistaken.”
They also indicated that Torres’ suit did not cover the facts upon which he based his USERRA claim, and said Texas’ sovereign immunity could only be challenged after certain requirements were met.
“Invoking that limited waiver of sovereign immunity requires exhaustion of an administrative process, which Appellee failed to do. Because the State of Texas has not waived its sovereign immunity to private USERRA suits, it may only be sued by the United States on behalf of a USERRA claimant and not by the claimant himself.”
Brian Lawler, lead counsel on behalf of Torres, has a different take. He said in an interview that USERRA’s wording is clear, and specifies that private suits for damages against states should be filed in state court.
He added that USERRA was not intended to leave service members without legal recourse.
"The state of Texas wants the courts to believe that a person like LeRoy Torres doesn't have the right to bring a USERRA lawsuit against the state of Texas — in either Texas state court or federal court,” Lawler said.
“So if you have a USERRA violation by a state entity – in this case DPS – they're claiming that they can't be sued in state or federal court. So, of course, you throw your hands up and go, 'Well okay, where does the case go?' Of course, the absurdity of that position should not be lost on anybody."
Lawler added that certain other states had already established legal precedents for handling private USERRA suits brought against them — but that Texas had yet to do so.
The Texas Supreme Court could begin hearing oral arguments on the jurisdiction of the case as early as January 2020.