Texas reservist wins $2.5M in suit against DPS
In what appears to be the first verdict of its kind in Texas, a jury has awarded $2.5 million to a former state trooper and Army reservist whose lungs were damaged by burn pits in Iraq and who sued the state for refusing to accommodate his disability when he got back home.
Retired Army Capt. Le Roy Torres, 51, of Robstown said he was pressured to resign from the Texas Department of Public Safety after returning from the war zone. He sued the agency for damages under the Uniformed Services Employment and Reemployment Rights Act, which requires civilian employers to make reasonable efforts to accommodate employees with servicerelated disabilities.
A Nueces County Court at Law jury awarded Torres $2.5 million in damages for lost wages and benefits, including retirement benefits. The verdict was reached Friday after a five-day trial in Corpus Christi and two hours of deliberations.
“We won,” said Torres’ wife, Rosie, 49, a San Antonio native. “We won fair and square in the hands of a jury, and it’s been a long, long road for us.”
Torres’s lead counsel, Brian Lawler of San Diego, Calif., said he believed it was the first-ever judgment against the state under USERRA. Congress passed the law in 1994 to protect troops from being fired or losing benefits when training exercises and military deployments cause them to miss work or when service-related ailments affect their ability to perform certain tasks.
“This is the first of its kind,” Lawler said. “That is my sense.”
Torres was called to active duty in 2007 and de
ployed to Iraq. He developed a debilitating lung disease while working near a 10-acre burn pit at Balad Air Base, 40 miles north of Baghdad. Plastic bottles, batteries, body parts and other waste was burned at the pit, he said.
After returning home, he began to suffer from severe headaches and a dry cough that doctors diagnosed as constrictive bronchiolitis. After years as a DPS trooper, he was reassigned to answer phones at a driver license office, working in a small room and wearing a mask to muffle his coughing.
He asked DPS to accommodate him by making him an investigator but he was refused. He resigned in 2012 after 14 years with the agency.
USERRA allows lawsuits against civilian employers, including state and local governments, if they discriminate based on an individual’s military service.
When Torres sued DPS, the state of Texas responded that sovereign immunity shielded it from suits under the law. The trial judge rejected that argument, but a state appellate court overturned the ruling. When the Texas Supreme Court refused to hear Torres’ appeal, he took the case to the U.S. Supreme Court, which ruled in his favor last year.
In a 5-4 ruling, the high court held that Congress was within its rights to authorize individuals to sue state agencies for damages under USERRA, with or without the state’s consent. The states ceded sovereignty to the federal government in matters of national defense when they ratified the U.S. Constitution, the court ruled.
Lawler said he had no indication whether the state would appeal Friday’s jury verdict.
DPS referred questions to the office of Texas Attorney General Ken Paxton, which did not respond to requests for comment.
“I’m expecting it,” Le Roy Torres said, referring to the possibility of an appeal by the state. “I won’t be surprised if they do, but we’ll be ready. We’ll be ready just like before. We took it all the way to the Supreme Court, and we’ll continue to press for justice.”
Torres and his wife have spent more than a decade advocating for veterans exposed to toxic fumes from burn pits, which dotted U.S. military bases in Iraq and Afghanistan.
In 2010, they created a nonprofit called Burn Pits 360, which established an independent registry for veterans to report their illnesses. Three years later, thenpresident Barack Obama signed a measure creating a national registry.
The Torres’ efforts also led Congress to pass the Honoring Our PACT Act of 2022, a comprehensive law that expanded health care benefits for veterans exposed to toxic substances.
Earlier this year, U.S. Rep. Joaquin Castro nominated the couple for the Presidential Medal of Freedom.
“Through Rosie and Le Roy, millions of veterans impacted by burn pits have the health care they deserve, and veterans have recourse against state government discrimination,” Castro, Dsan Antonio, wrote in a nominating letter to President Joe Biden. “They successfully fought for the passage of two federal laws to protect veterans impacted by burn pits and secured a victory for disabled veterans at the Supreme Court.”