Iraq vet’s lawsuit vs. DPS tests job protections
AUSTIN — Le Roy Torres returned from war in Iraq with a lung disease that he says cost him his 14-year career as a Texas state trooper.
He’s now suing the Department of Public Safety — alleging he was forced out after suffering a service-related illness — in a case that is testing the limits of a federal law meant to protect veterans from losing their jobs and benefits when they deploy.
The Texas Supreme Court is expected to decide within months whether the lawsuit can proceed. That ruling could determine if other service members can file similar anti-discrimination lawsuits against the state of Texas, where about one in 14 residents is a veteran.
“It’s important because this is an injustice for someone who goes and serves their nation and comes back ill or wounded,” said Torres, a former captain in the U.S. Army Reserve who deployed to Iraq in 2007 and now lives in Robstown. “The department, if they can’t accommodate you, then it’s a serious issue. How do you survive?”
In his lawsuit, Torres said he was pressured to resign from the department after developing a debilitating lung disease while working as a logistics officer near a 10-acre burn pit at Balad Air Base. It burned everything from plastic bottles and batteries to body parts, Torres said.
He and his wife, Rosie, already are well known in the veterans community for creating Burn Pits 360, an organization that lobbies for those who suffer ailments linked to burn pit exposure.
Congress passed the Uniformed Services Employment and Reemployment Rights Act in 1994 to protect members of the military from being fired or losing benefits — such as vacation time — when they miss work for deployment or training exercises.
The law applies to private employers and government agencies. But state workers across the country have faced hurdles when filing lawsuits seeking monetary damages because some states argue they have sovereign immunity from being sued under the federal law, said Jeffrey Hirsch, a professor at the University of North Carolina School of Law who focuses on labor law.
Attorney General Ken Paxton’s office has argued the same and pointed out the state Legislature passed its own laws for veterans to pursue wrongful termination claims.
“The Texas Legislature has provided remedies that Torres could have used, but he is instead attempting to take advantage of federal remedies that the Texas Legislature has evinced a clear intent not to allow in Texas courts,” said a brief from Paxton’s office filed with the Texas Supreme Court.
Torres’ attorney Brian Lawler, however, said state law is not as permissive. It caps damages, for example, at $300,000. Torres, 46, is seeking more than $1 million for lost wages and retirement benefits, according to his complaint.
Lawler argues the federal law clearly allows veterans to sue state agencies in state court. Law professors, including Hirsch, filed briefs with the state’s high court arguing that Texas can’t claim immunity because it would hinder the ability of Congress to recruit and retain members of the U.S. military.
“Put simply, it is inconsistent with our constitutional heritage and traditions to penalize a person who makes the difficult and lifealtering decision to serve our country,” Philip Bobbitt, a senior lecturer at the University of Texas School of Law who specializes in constitutional law, wrote in a brief. “This is certainly true where a person joined the military based in part on the understanding that she could return to her existing employment upon completing her service.”
After returning home from deployment, Torres said he suffered from searing headaches and a dry cough that eventually was diagnosed as constrictive bronchiolitis.
Torres said he was reassigned to answer phones at a driver license office and recalls having to wear a mask to cover his coughing and work alone in a small room. Torres said the department denied his request for reasonable accommodation to become an investigator. Then, his complaint said, he was pressed to resign in 2012 and unable to collect retirement.
“It was a horrific time for our family,” said Torres, who nearly lost his house.
A Nueces County judge found in Torres’ favor, but an appeals court reversed the decision. The case now is before the Texas Supreme Court, made up of nine elected justices.
The Department of Public Safety said in a statement it doesn’t comment on pending litigation and referred questions to Paxton’s office. Paxton’s office didn’t respond to a request for comment by Tuesday afternoon.
It’s not clear how many state employees may have filed lawsuits alleging discrimination due to their military service. At least one other lawsuit against the DPS is on hold pending the outcome of Torres’ case, Lawler said.
Christopher Sandoval alleges he wasn’t allowed to return to work at that DPS as a field trainer — and was fired — after failing to provide paperwork detailing two months of military service in 2015. The documents that the DPS requested aren’t provided by the military for orders that last less than 90 days, according to the lawsuit filed in September 2018.