Texas Department of Public Safety v. Leroy Torres
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Opinion
ACCEPTED 15-24-00089-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 12/16/2024 2:39 PM CAUSE NO. 15-24-00089-CV CHRISTOPHER A. PRINE ____________________________________________________________ CLERK FILED IN 15th COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE FIFTEENTH JUDICIAL DISTRICT 12/16/2024 2:39:04 PM AUSTIN, TEXAS CHRISTOPHER A. PRINE Clerk ____________________________________________________________
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
LE ROY TORRES, Appellee. __________________________________________________________________
On Appeal from the County Court at Law Number One, Nueces County No. 2017-CCV-61016-1 ________________________________________________________________________
APPELLEE’S BRIEF ________________________________________________________________________
Stephen J. Chapman Brian J. Lawler State Bar No. 24001870 Pro Hac Vice WEBB, CASON &MANNING, P.C. PILOT LAW, P.C. 710 N. Mesquite, 2nd Floor 4632 Mt. Gaywas Drive Corpus Christi, Texas 78401 San Diego, California 92117 Telephone: (361) 887-1031 Telephone: (619) 255-2398 Facsimile: (361) 887-0903 Facsimile: (619) 231-4984 steve@wcctxlaw.com blawler@pilotlawcorp.com
Attorneys for Appellee
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ..............................................vi
ISSUES PRESENTED............................................................................................ vii
I. SUMMARY OF THE ARGUMENT ................................................................ 1 II. STATEMENT OF FACTS................................................................................1
III. ARGUMENT ....................................................................................................6 A. USERRA GOVERNS SERVICE MEMBERS’ RE-EMPLOYMENT RIGHTS .................................................................. 6 1. The Trial Court Did Not Err Because the Jury Was Properly Instructed On Plaintiff’s Reemployment Accommodation Claim Under Section 4313 ..............................................................................................7 2. There is No Claim Preclusion and TXDPS Failed To Make Any Reasonable Efforts For Accommodation ................................................10 a. USERRA Section 4313 Reemployment and Accommodation..................................................................11
1. TXDPS Failed to Make Reasonable Efforts to Reintegrate Captain Torres into his Civilian Career........................................................................13
3. The Trial Court Did Not Err Because the Evidence Supported The Jury Verdict and Plaintiff Is Entitled To An Award Of Attorneys’ Fees ....................................................................................21 a. Captain Torres is Entitled to an Award of His Attorneys’ Fees Under USERRA ........................................................21 b. Captain Torres Was Entitled to the Damages Awarded in Accordance With USERRA...............................................23 c. TXDPS States no Basis for a Remittitur...........................27
PRAYER ..................................................................................................................28
Appellees Brief Page i CERTIFICATE OF COMPLIANCE .......................................................................29
CERTIFICATE OF SERVICE ................................................................................30
Appellees Brief Page ii INDEX OF AUTHORITIES
Cases Boone v. Lightner, 319 U.S. 561 (1943) ................................................................. 7
Bradberry v. Jefferson County, 732 F.3d 540 (5th Cir. 2013) ................................ 9
EEOC v. LHC Grp., Inc., 773 F.3d 688 (5th Cir. 2014) ................................. 16, 19
Fink v. City of New York, 129 F. Supp. 2d 511, 523 (E.D.N.Y. 2011) .........14 Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (1946) ..................... 7
Fryer v. A.S.A.P. Fire Safety Corp., 750 F. Supp. 2d 331 (D. Mass 2010) .......... 22
Georgia v. City of Bridgeport, U.S. Dist. LEXIS 142506 (D.Conn. Aug. 10, 2020) .....................................................................................................................17 Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) .......................... 7
Hembree v. Georgia Power Co., 637 F.2d 423 (5th Cir. 1981) ..................... 25, 26
King v. St. Vincent's Hosp., 502 U.S. 215 (1991) ................................................... 7
Le Maistre v. Leffers, 333 U.S. 1 (1948) ................................................................ 7
Lett v. SEPTA 2021 U.S. Dist. LEXIS 227296 (E.D.Pa. Nov. 26, 2021) .....17 Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018) ..................................... 9
Mathis v. Exxon Corp. 302 F.3d 448, 461 (5th Cir. 2002) .....................................22
Miller v. Nat'l Cas. Co., 61 F.3d 627, 629-30 (8th Cir. 1995) .......................16
Moten v. Maverick Transp., LLC 2015, U.S. Dist. LEXIS 147158 (N.D.Ala. Oct. 30, 2015) ......................................................................................................14
Paxton v. City of Montebello, 712 F. Supp.2d 1017 (C.D. Cal. 2010) ..........14
Powers v. USF Holland Inc., 2015 U.S. Dist. LEXIS 82324 (N.D.Ind. June 25, 2015) ...............................................................................................................17
Appellees Brief Page iii Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986) ...............................................27 Punt v. Kelly Servs. 862 F.3d 1040, 1048 (10th Cir. 2017) ................................... 10 Ryan v. City of Philadelphia, 559 F.Supp. 783 (3rd Cir. 1984)) ...................25
Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014) .....16 Taylor v. Phoenixville School Dist., 184 F.3d 296 (3d Cir. 1999) ....................... 15 Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996) .......16 Torres v. Texas Dept. of Public Safety, 597 U.S. 580 (2022) ............................... 21
United States v. Nevada, 817 F. Supp.2d 1230, 1234 (D. Nev. 2011) ..................14
Statutes 38 U.S.C.
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ACCEPTED 15-24-00089-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 12/16/2024 2:39 PM CAUSE NO. 15-24-00089-CV CHRISTOPHER A. PRINE ____________________________________________________________ CLERK FILED IN 15th COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE FIFTEENTH JUDICIAL DISTRICT 12/16/2024 2:39:04 PM AUSTIN, TEXAS CHRISTOPHER A. PRINE Clerk ____________________________________________________________
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
LE ROY TORRES, Appellee. __________________________________________________________________
On Appeal from the County Court at Law Number One, Nueces County No. 2017-CCV-61016-1 ________________________________________________________________________
APPELLEE’S BRIEF ________________________________________________________________________
Stephen J. Chapman Brian J. Lawler State Bar No. 24001870 Pro Hac Vice WEBB, CASON &MANNING, P.C. PILOT LAW, P.C. 710 N. Mesquite, 2nd Floor 4632 Mt. Gaywas Drive Corpus Christi, Texas 78401 San Diego, California 92117 Telephone: (361) 887-1031 Telephone: (619) 255-2398 Facsimile: (361) 887-0903 Facsimile: (619) 231-4984 steve@wcctxlaw.com blawler@pilotlawcorp.com
Attorneys for Appellee
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ..............................................vi
ISSUES PRESENTED............................................................................................ vii
I. SUMMARY OF THE ARGUMENT ................................................................ 1 II. STATEMENT OF FACTS................................................................................1
III. ARGUMENT ....................................................................................................6 A. USERRA GOVERNS SERVICE MEMBERS’ RE-EMPLOYMENT RIGHTS .................................................................. 6 1. The Trial Court Did Not Err Because the Jury Was Properly Instructed On Plaintiff’s Reemployment Accommodation Claim Under Section 4313 ..............................................................................................7 2. There is No Claim Preclusion and TXDPS Failed To Make Any Reasonable Efforts For Accommodation ................................................10 a. USERRA Section 4313 Reemployment and Accommodation..................................................................11
1. TXDPS Failed to Make Reasonable Efforts to Reintegrate Captain Torres into his Civilian Career........................................................................13
3. The Trial Court Did Not Err Because the Evidence Supported The Jury Verdict and Plaintiff Is Entitled To An Award Of Attorneys’ Fees ....................................................................................21 a. Captain Torres is Entitled to an Award of His Attorneys’ Fees Under USERRA ........................................................21 b. Captain Torres Was Entitled to the Damages Awarded in Accordance With USERRA...............................................23 c. TXDPS States no Basis for a Remittitur...........................27
PRAYER ..................................................................................................................28
Appellees Brief Page i CERTIFICATE OF COMPLIANCE .......................................................................29
CERTIFICATE OF SERVICE ................................................................................30
Appellees Brief Page ii INDEX OF AUTHORITIES
Cases Boone v. Lightner, 319 U.S. 561 (1943) ................................................................. 7
Bradberry v. Jefferson County, 732 F.3d 540 (5th Cir. 2013) ................................ 9
EEOC v. LHC Grp., Inc., 773 F.3d 688 (5th Cir. 2014) ................................. 16, 19
Fink v. City of New York, 129 F. Supp. 2d 511, 523 (E.D.N.Y. 2011) .........14 Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (1946) ..................... 7
Fryer v. A.S.A.P. Fire Safety Corp., 750 F. Supp. 2d 331 (D. Mass 2010) .......... 22
Georgia v. City of Bridgeport, U.S. Dist. LEXIS 142506 (D.Conn. Aug. 10, 2020) .....................................................................................................................17 Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) .......................... 7
Hembree v. Georgia Power Co., 637 F.2d 423 (5th Cir. 1981) ..................... 25, 26
King v. St. Vincent's Hosp., 502 U.S. 215 (1991) ................................................... 7
Le Maistre v. Leffers, 333 U.S. 1 (1948) ................................................................ 7
Lett v. SEPTA 2021 U.S. Dist. LEXIS 227296 (E.D.Pa. Nov. 26, 2021) .....17 Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018) ..................................... 9
Mathis v. Exxon Corp. 302 F.3d 448, 461 (5th Cir. 2002) .....................................22
Miller v. Nat'l Cas. Co., 61 F.3d 627, 629-30 (8th Cir. 1995) .......................16
Moten v. Maverick Transp., LLC 2015, U.S. Dist. LEXIS 147158 (N.D.Ala. Oct. 30, 2015) ......................................................................................................14
Paxton v. City of Montebello, 712 F. Supp.2d 1017 (C.D. Cal. 2010) ..........14
Powers v. USF Holland Inc., 2015 U.S. Dist. LEXIS 82324 (N.D.Ind. June 25, 2015) ...............................................................................................................17
Appellees Brief Page iii Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986) ...............................................27 Punt v. Kelly Servs. 862 F.3d 1040, 1048 (10th Cir. 2017) ................................... 10 Ryan v. City of Philadelphia, 559 F.Supp. 783 (3rd Cir. 1984)) ...................25
Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014) .....16 Taylor v. Phoenixville School Dist., 184 F.3d 296 (3d Cir. 1999) ....................... 15 Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996) .......16 Torres v. Texas Dept. of Public Safety, 597 U.S. 580 (2022) ............................... 21
United States v. Nevada, 817 F. Supp.2d 1230, 1234 (D. Nev. 2011) ..................14
Statutes 38 U.S.C. § 4301 (a)(1) ................................................................................. 6, 7, 12
38 U.S.C. § 4302 ....................................................................................................22
38 U.S.C. § 4303 ....................................................................................................12
38 U.S.C. § 4304 ....................................................................................................12
38 U.S.C. § 4311 ................................................................................................. 7, 8
38 U.S.C. § 4312 (a)(1),(c), (e) ............................................................................. 12
38 U.S.C. § 4313 ................................................. 8, 9, 11, 12, 13, 15, 23, 24, 25, 27
38 U.S.C. § 4323 ................................................................................................... 21
42 U.S.C. § 12101.................................................................................................. 15
Regulations 20 C.F.R. § 1002.5(i)............................................................................................. 14
20 C.F.R. § 1002.33 ................................................................................................ 9
20 C.F.R. § 1002.37 .............................................................................................. 14
Appellees Brief Page iv 20 C.F.R. § 1002.115 ............................................................................................ 12
20 C.F.R. § 1002.181 .............................................................................................12
20 C.F.R. § 1002.191 .............................................................................................24
20 C.F.R. § 1002.198 ................................................................................ 15, 16, 17
20 C.F.R. § 1002.225 ...................................................................................... 13, 25
20 C.F.R. § 1002.226 .............................................................................................. 8
20 C.F.R. § 1630 ....................................................................................... 15, 16, 17
Additional Authorities 70 Fed. Reg. 75246 (Dec. 19, 2005) ..................................................... 9, 10, 12, 25
H.R. Rep. No. 103-65, pt. 1 (1993) ............................................................ 7, 25, 26
1994 U.S.C.C.A.N. 2449, 2456 .................................................................. 7, 25, 26
EEOC, "Veterans and the Americans with Disabilities Act: A Guide for Employers" (2020) ................................................................................................ 28
U.S. Equal Employment Opportunity Commission. (2020, November 27) Veterans and the Americans with Disabilities Act: A Guide for Employers. Retrieved from https://www.eeoc.gov/laws/guidance/veterans-and- americans-disabilities-act-guide-employers. ....................................................15
Appellees Brief Page v STATEMENT REGARDING ORAL ARGUMENT
Oral argument should be permitted in this matter because the determination
of the issues here will affect Reserve Personnel in the Country’s armed forces, and
the Court’s resolution of this appeal will potentially have wide-ranging impact
even beyond the State of Texas.
Appellees Brief Page vi ISSUES PRESENTED
1. THE TRIAL COURT DID NOT ERR BECAUSE THE JURY WAS PROPERLY INSTRUCTED ON PLAINTIFF’S REEMPLOYMENT ACCOMMODATION CLAIM UNDER USERRA SECTION 4313
2. THERE IS NO “CLAIM PRECLUSION” AND TXDPS FAILED TO MAKE ANY REASONABLE EFFORTS FOR ACCOMODATION
3. THE TRIAL COURT DID NOT ERR BECAUSE THE EVIDENCE SUPPORTED THE JURY VERDICT AND PLAINTIFF IS ENTITLED TO AN AWARD OF ATTORNEY’S FEES
Appellees Brief Page vii I.
SUMMARY OF THE ARGUMENT
Plaintiff/Appellee Captain Le Roy Torres was an Army reservist who was
called to active duty and deployed to Iraq. While there, he suffered lung damage
from toxic fumes. When Captain Torres returned to his civilian life and resumed
his duties as a State Trooper – the job he held before being called to active duty,
his latent exposure injuries began to worsen and prevented him from performing
all the duties of his position. Captain Torres needed and requested an
accommodation from the Texas Department of Public Safety (“TXDPS”). Rather
than accommodating him, his request was essentially ignored until he was left with
no choice but to resign. The clear evidence in this case shows the TXDPS violated
the USERRA Section 4313 accommodation requirements, and the jury found
liability and damages supported by the evidence presented. The Trial Court did not
err in any manner regarding this case and TXDPS’ appeal should be denied.
II.
STATEMENT OF FACTS
Le Roy Torres began his tenure with TXDPS as a state trooper in 1998. (RR-
4, pp. 33-36.) By 1999, he had successfully completed the academy. For nearly a
decade, he served honorably and without incident. His service was interrupted by
his deployment to Iraq in 2007. (RR-4, pp. 33-36.) Upon his return from Iraq in Appellees Brief Page - 1 - 2008, TXDPS reemployed him, as it was lawfully required to, and acknowledged
his commendable service. (RR-4, pp. 33-36, 75-76)
In November 2010, Captain Torres was diagnosed with a severe health
condition because of his deployment. This diagnosis stemmed from an August
2010 appointment with Dr. Miller. (RR-4, pp. 40-46.) After Captain Torres was
officially diagnosed with constructive bronchiolitis, he submitted several HR-87
forms to TXDPS to secure a job position which would accommodate his
permanent disability. (RR-4, pp. 40-46.)
An HR-87 is an evaluative medical status report form that TXDPS provides
to its employees when they request a workplace accommodation. (RR-4, pp. 44-
47) The employee must have this form filled out by a physician. As a result of
those HR-87 forms indicating that Captain Torres was suffering from a permanent
service-related illness, and aware of his own physical limitations which would
preclude him from continuing the arduous duties of a front-line state trooper,
Captain Torres requested accommodation on January 10, 2011. (RR-4, pp. 44-47.
RR-12 Exh. 118))
However, the response from TXDPS was a strange series of conflicting
communications. On January 10, 2011, the same day as his accommodation
request, he met with his supervisor Captain Lawson. At that meeting Captain
Torres was given a memo indicating that TXDPS acknowledged his permanent Appellees Brief Page - 2 - disability. (RR-4, pp. 47-50. RR-11 Exh. 10) Yet two days later, on January 12,
2011, in another meeting with Captain Lawson, TXDPS retracted the
acknowledgment of his permanent disability. (RR-4, pp. 49-51. RR-11 Exh. 11)
There is no explanation in the evidence or testimony as to why this was done. This
confusion was then compounded by a subsequent memo on January 27, 2011,
which offered Captain Torres a temporary “modified duty” position at his Trooper
III rank and pay scale. (RR-4, pp. 51-54. RR-11 Exh. 12) After that memo, no one
at TXDPS ever again contacted Captain Torres regarding the status of his
accommodation request. (RR-6 p.75-78)
After not getting any answers regarding the status of his request for a
permanent accommodation, on October 25, 2011, Captain Torres again formally
requested a reasonable accommodation and asked for a transfer to the driver's
license office in Corpus Christi. (RR-4, pp. 60-63. RR-11 Exh. 14) Captain Torres
could perform the essential functions of that position and had done so prior to this
formal request. He was also prepared to take any position with TXDPS that could
accommodate him. (RR-4 pp. 53, 131-132 RR-5 pp. 10-11) Notably, he had been
working there already through a temporary modified duty transfer, but there is no
documentation from DPS anywhere in the record to commemorate this.
On the same day as his second request, Captain Lawson approved Captain
Torres’ request and recommended to her supervisor that he be transferred from his Appellees Brief Page - 3 - current position. (RR-11 Exh. 3) There was no further action on Captain Torres’
request until December 16, 2011, when an internal TXDPS HR e-mail indicated
that the processing of Captain Torres' request for an accommodation transfer was
“on hold until we are able to review what has transpired.” (RR-11 Exh.
5)(emphasis added) Notably, and at the heart of Captain Torres’ claims, TXDPS
took no further action or communication regarding his accommodation request
after this date. (other than a December 20, 2011, interoffice memorandum about a
modified duty extension, that again acknowledged his “disability is permanent.”)
(RR-11 Exh. 6.) There was no response to this memo or any action taken at all by
TXDPS.
Captain Torres' temporary “modified duty” position at the driver's license
office continued until around April 2012 at which point he took an extended
medical leave. His health conditions worsened, and his concerns grew, leading him
to enroll in a medical program in Utah in late July 2012. (RR-4, pp. 57-58, 63-65).
During this period, the only communication he had was with his direct supervisor,
Sgt. Benavides, who had no information to share regarding his accommodation
request. (RR-4, p. 68)
By August 2012, Captain Torres had received no information from anyone
at DPS about his accommodation request and began to realize there was not going
to be a response. His family was in grave financial condition and with no Appellees Brief Page - 4 - accommodation information forthcoming from TXDPS, in desperation Captain
Torres informed TXDPS of his intent to medically retire. (RR-4, pp. 69-75, RR-12
Exh 84, 116)
This medical retirement request was rejected by the Texas Employees
Retirement System (“ERS”), who ironically stated “[a]fter reviewing your medical
records, the Medical Board concluded that you could perform the duties of another
occupation, such as sedentary work that does not require physical exertion or
exposure to toxic fumes or chemicals.” (RR-11, Exh 85.) The entire reason Captain
Torres was forced into this untenable situation was TXDPS’ failure to place him in
the sedentary work position at the Driver’s License office (or anywhere else) he
requested as accommodation. At this point Captain Lawson, through Sgt.
Benavides, advised him to change his medical retirement to a standard resignation,
effective August 31, 2012. (RR-4, pp. 71-72, RR-12 Exh 116) Out of options,
Captain Torres complied with their direction and his career was over.
When asked at trial what reasonable efforts TXDPS made and/or
communicated to Captain Torres about his request between the request until his
resignation, the TXDPS representative Major Palmer testified he (meaning
TXDPS) did not know what happened because there is nothing in the record about
any action and that there was no evidence anyone ever contacted Captain Torres.
(RR-6 p.75-78) Major Palmer also testified that there were numerous regions that Appellees Brief Page - 5 - could have positions available to Captain Torres but did not know if TXDPS had
even bothered to look. (RR-6 p. 76-77) Finally, he also made clear that after the
December 16, 2011, HR email stating things were “on hold” there was nothing else
in the TXDPS records to show anything at all was done. (RR-6 p.79, RR-11 Exh.
5) It is clear the TXDPS’ numerous admitted failures prevented Captain Torres
from being placed in a job that accommodated his permanent disability, even
though such jobs were readily available.
III. ARGUMENT
A. USERRA GOVERNS SERVICE MEMBERS’ RE-EMPLOYMENT RIGHTS
The Uniformed Services Employment and Reemployment Rights Act
(USERRA), 38 U.S.C. § 4301 et seq., provides many rights for both Reserve and
National Guard military members who leave their employment due to military
service. A primary purpose of USERRA is “to encourage noncareer service in the
uniformed services by eliminating or minimizing the disadvantages to civilian
careers and employment which can result from such service.” (38 U.S.C. §
4301(a)(1))
USERRA serves as the foundational statute protecting the employment
rights of military service members. It is designed to ensure service members are
not disadvantaged or discriminated against in their civilian careers due to their Appellees Brief Page - 6 - service, and they are promptly reemployed upon their return. (38 U.S.C. § 4301)
USERRA and its predecessor statutes must broadly and liberally be interpreted in
favor of servicemembers, as intended by the legislators who enacted it, and the
United States Supreme Court and numerous lower courts have long echoed this
strong policy favoring servicemembers. (H.R.Rep, No. 103-65 at 23 (1993),
reprinted in 1994 U.S.C.C.A.N. 2449, 2456 ("The Committee intends that these
anti-discrimination provisions be broadly construed and strictly enforced"));
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 441 (2011) ("[P]rovisions
for benefits to members of the Armed Services are to be construed in the
beneficiaries' favor.") (quoting King v. St. Vincent's Hosp., 502 U.S. 215, 220, n.9
(1991)); Le Maistre v. Leffers, 333 U.S. 1, 6 (1948) (The law “must be read with an
eye friendly to those who dropped their affairs to answer their country's call.”);
Fishgold v. Sullivan Drydock & Repair Corp, 328 U.S. 275, 285 (1946) ("This
legislation is to be liberally construed for the benefit of those who left private life
to serve their country in its hour of great need."); Boone v. Lightner, 319 U.S. 561,
575 (1943).)
1. THE TRIAL COURT DID NOT ERR BECAUSE THE JURY WAS PROPERLY INSTRUCTED ON PLAINTIFF’S REEMPLOYMENT ACCOMMODATION CLAIM UNDER USERRA SECTION 4313
Defendant’s issues 1, 2, 3 and 4 are interrelated as they all rely on their
incorrect argument that this claim arises solely under USERRA Section 4311. Appellees Brief Page - 7 - Section 4311, among other things, prevents an employer from discriminating
because of an employee’s military service and has affirmative defenses to such
discrimination claims for the employer. However, Plaintiff abandoned his Section
4311 claims and his claims at trial proceeded under Section 4313, which governs
re-employment and accommodation for any service-related illness/disability and
contains different affirmative defenses.1 Simply stated, although they rehired
Captain Torres in his original trooper position, as it was obligated to do, when his
disability manifested itself later TXDPS was also required under USERRA Section
4313 to accommodate his disability, but it did not. As explained at the charge
conference by Plaintiff’s attorney Lawler:
“So when the statute was enacted in 1994, Congress charged the Department of Labor with promulgating the regulations to explain in plain language what they meant, what the statute meant, and the Department of Labor did that. That's at 20 CFR, Section 1002. And then what 1002.226 establishes that, ‘The employer must make reasonable accommodations for any disability incurred in or aggravated during a period of service.’ No one disputes that. ‘The accommodation requirement is not limited to disabilities incurred during training or combat so long as they are incurred during the period of service.’ No dispute there. ‘The disability must have been incurred or aggravated when the servicemember applies for reemployment even if it has not yet been detected. If the disability is discovered after the servicemember resumes work,’ like Mr. Torres, ‘and it interferes with his or her job performance,’ like Torres, ‘then the reinstatement process should be restarted under USERRA's disability provisions.’ That is 20 CFR 1002.226, That is 20 CFR 1002.226, and that explanation I just read for the Court can be found 1 In fact, during the Jury Charge Conference, Counsel for Plaintiff added the 4313 affirmative defense “undue hardship” but its inclusion was objected to/declined by Defendants. (RR-6 pp. 111-112,119) Appellees Brief Page - 8 - as we cite underneath No. 2 at 70 Fed.Reg. 75246, specifically 75277 (December 19, 2005)”
(RR-V6, pg. 96)
Moreover, proving discriminatory intent or motive in a USERRA Section
4313 reemployment/failure to accommodate case is simply not required. This was
pointed out numerous times during the trial and charge conference. (RR-6, pp. 11
L13-25, 12 L9-15, 13 L5-13, 16, L8-25, 17 L1-13, 24 L 7-13, 25 L9-19, 96, 100,
105-106, 107-112) As the trial court succinctly illustrated at the charge conference:
25. if they're taking the 1. position that they're not going to seek recovery under 2. 4311 and they're only going to try to seek recovery 3. under 4313, then why do we put anything in there about 4. 4311?
(RR-6, pp. 107 L25 - 108 L1-4)
As the law clearly states, an “employee is not required to prove that the
employer discriminated against him or her because of the employee's uniformed
service in order to be eligible for reemployment.” (20 C.F.R. § 1002.33; Bradberry
v. Jefferson County 732 F.3d 540, 552 (5th Cir. 2013); Lincoln v. BNSF Ry. Co.
900 F.3d 1166, 1204 (10th Cir. 2018) [“Because ‘any failure to provide reasonable
accommodations for a disability is necessarily because of disability,’ it follows that
a plaintiff need not prove the employer's motivation or intent to discriminate to
Appellees Brief Page - 9 - prevail on a failure to accommodate claim.”], quoting Punt v. Kelly Servs., 862
F.3d 1040, 1048 (10th Cir. 2017).)
As is clearly required by the Department of Labor's final rules on USERRA
from 2005:
Section 1002.226 establishes that the employer must make reasonable accommodations for any disability incurred in or aggravated during a period of service. The accommodation requirement is not limited to disabilities incurred during training or combat, so long as they are incurred during the period of service. If the disability is discovered after the servicemember resumes work, and it interferes with his or her job performance, then the reinstatement process should be restarted under USERRA's disability provisions.
70 Fed. Reg 75246, 75277, (December 19th, 2005).
USERRA required TXDPS to make reasonable efforts to accommodate
Captain Torres when his disability manifested itself after his re-employment and it
did not. As was testified to by TXDPS Lieutenant Jankowski “It was my opinion
that when I transferred to Corpus Christi after -- and I was handed a thick packet, I
felt like he was set up for failure by the agency because of the -- what I believe to
be a lack of HR involvement from the beginning.” (RR-5, p. 51 L8-12) As is
explained further below, the TXDPS’ “setup for failure” resulted in the lack of any
interactive process at all for accommodating Captain Torres.
2. THERE IS NO “CLAIM PRECLUSION” AND TXDPS FAILED TO MAKE ANY REASONABLE EFFORTS FOR ACCOMODATION
Appellees Brief Page - 10 - TXDPS argues that Captain Torres’ ultimate resignation was what caused
the breakdown of the required “interactive process” under USERRA and somehow
this results in “claim preclusion.” This argument is both factually and syntactically
incorrect. The facts in this case show that there was no interactive process at all
and that Captain Torres, after nearly ten months of radio silence from his
leadership, and with no hope of receiving any accommodation, was advised to
resign and did so.
a. USERRA Section 4313 Reemployment and Accommodation
Service members who leave their civilian employment to serve in the
military have a fundamental right to be fully reintegrated into jobs upon
completing their service. USERRA sub-sections 4313(a)(1)(A) and (B) provide,
specific to the benefit of reemployment, “…a person is entitled to
reemployment…[and] shall be promptly reemployed in a position of employment
in which the person would have been employed if the continuous employment of
such a person with the employer had not been interrupted by such
service…[including] status and pay…” or “in the position of employment in which
the person was employed on the date of the commencement of the service in
uniformed services….” That means returning service members are reemployed in a
position that reflects the trajectory their career would have taken had they not been
absent for military service. Appellees Brief Page - 11 - This could mean a promotion, a raise, or other job benefits that the
servicemember would have attained with reasonable certainty if not for the absence
due to military service. (See 38 U.S.C. § 4313.) To be eligible for these
reemployment rights, a servicemember must meet certain criteria:
1. The individual left a civilian job to perform uniformed service. (38 U.S.C. § 4301) 2. The employer was given prior notice by the individual before they left for the uniformed service. (38 U.S.C. § 4312(a)(1)) 3. The total period of the uniformed service was not more than five years (subject to some exceptions) (38 U.S.C. § 4312(c)) 4. The individual applied for reemployment in a timely manner after the conclusion of their service. (38 U.S.C. § 4312(e); 20 C.F.R. Part 1002) 5. The individual was not separated from the service with a disqualifying discharge or under other than honorable conditions. (38 U.S.C. § 4304)
Captain Torres' eligibility for reemployment is undisputed in this case. It is
also undisputed that Captain Torres’ progressive service-related disability left him
unable to perform the duties of a Texas State Trooper after he was reemployed.
However, he was able to perform the essential duties of the Driver’s License
accommodation position he requested as well as many others in the TXDPS
regions throughout the State.2 (RR-4 pp. 53, 131-132 RR-5 pp. 10-11) Once a
service member like Captain Torres’ service-related disability arises after re-
employment, but prevents them from performing the essential functions of their
2 Captain Torres’ employer was the State of Texas. Within the vast network of the Texas government, there were positions for which Captain Torres was qualified or could become qualified through training -- even if it means displacing another employee. (38 U.S.C. § 4312(e)(1)(A); 20 C.F.R. §§ 1002.115(a) and 1002.181.) USERRA does not limit reemployment opportunities to vacant positions, expanding the range of reemployment options. (70 Fed. Reg. 75,246, 75,277 (Dec. 19, 2005), available at 70 FR 75246-01, at *75277.) Appellees Brief Page - 12 - position, USERRA Section 4313 requires TXDPS to make reasonable efforts for
his accommodation. As is explained below it failed to do so.
1. TXDPS Failed to Make Reasonable Efforts to Reintegrate Captain Torres into his Civilian Career
There are instances where reemploying the service member in their original
or escalator position might not be feasible, especially if the service member has
incurred a disability during their service. In such cases, employers must make
“reasonable efforts” to accommodate the service member's disability and
appropriately reemploy them in a suitable position of equivalent seniority, status,
and pay, the duties of which they are qualified to perform or could become
qualified to perform with reasonable efforts by the employer. (38 U.S.C. §
4313(a)(4).
“A disabled service member is entitled, to the same extent as any other
individual, to the escalator position he or she would have attained but for
uniformed service. If the employee has a disability incurred in, or aggravated
during, the period of service in the uniformed services, the employer must make
reasonable efforts to accommodate that disability and to help the employee become
qualified to perform the duties of his or her reemployment position.”
(20 C.F.R. § 1002.225.)
Appellees Brief Page - 13 - “The term ‘reasonable efforts’ … means actions, including training provided
by an employer, that do not place an undue hardship on the employer.” (38 USC §
4303(10); 20 C.F.R. § 1002.5(i).) In the context of USERRA, the term "employer"
is expansively defined to encompass "any person, institution, organization, or other
entity that pays salary or wages for work performed or has control over
employment opportunities," including a "State" and potentially extending to more
than one entity for a single employee. (38 U.S.C. § 4303(4)(A)(iii); 38 U.S.C. §
4303(14); 20 C.F.R. § 1002.37.) This broad interpretation is affirmed in United
States v. Nevada, where the court emphasized that the "employer" of a state
employee is not confined to the specific department of employment but extends to
the state itself, acting through its designated agents with the authority in
employment matters. (United States v. Nevada, 817 F.Supp.2d 1230, 1234 (D.Nev.
2011).)
There is a relative “dearth of cases” on the duty to make “reasonable efforts”
under USERRA, making it appropriate to gather interpretive guidance from similar
federal law. (See Moten v. Maverick Transp., LLC (N.D.Ala. Oct. 30, 2015) 2015,
U.S.Dist.LEXIS 147158 [relying on Title VII for guidance on USERRA]; Paxton
v. City of Montebello, 712 F. Supp.2d 1017 (C.D. Cal. 2010) [relying on the ADEA
for guidance on USERRA]; Fink v. City of New York, 129 F. Supp. 2d 511, 523
(E.D.N.Y. 2011) [relying on the ADEA for guidance on USERRA].) Appellees Brief Page - 14 - For Section 4313, that law is the Americans with Disabilities Act (“ADA”)
(See, e.g., U.S. Equal Employment Opportunity Commission. (2020, November
27) Veterans and the Americans with Disabilities Act: A Guide for Employers.
Retrieved from https://www.eeoc.gov/laws/guidance/veterans-and-americans-
disabilities-act-guide-employers.) The ADA, USERRA, and interpretive
regulations for both, differentiate between essential and non-essential job duties
when considering accommodations for disabled employees, absent "undue
hardship." (See, e.g., 38 U.S.C. § 4313 (USERRA); 42 U.S.C. § 12101, et seq.
(ADA); 20 C.F.R. §§ 1002.5(i) and 1002.198 (USERRA); 20 C.F.R. § 1630 App.
1630.9 (ADA).)
The counterpart to USERRA’s “reasonable efforts” is the ADA’s
“interactive process.” The similarities between the two concepts make them almost
interchangeable. “Once a qualified individual with a disability has requested
provision of reasonable accommodation, the employer must make a reasonable
effort to determine the appropriate accommodation. The appropriate reasonable
accommodation is best determined through a flexible, interactive process that
involves both the employer and the [employee] with a disability.” (29 C.F.R. Pt.
1630, App. § 1630.9; Taylor v. Phoenixville School Dist., 184 F.3d 296, 311 (3d
Cir. 1999) (emphasis added.)
Appellees Brief Page - 15 - However, USERRA’s “reasonable efforts” and the ADA’s “interactive
process” do differ in a material way: communication under the ADA may not
necessarily be required, whereas it most certainly is under USERRA.
Specifically, courts have held that an employer's failure to engage in this process,
by itself, might not expose them to liability under the ADA. However, if the failure
to engage prevents the identification of an appropriate accommodation for a
qualified individual, it becomes actionable. (Taylor v. Principal Fin. Group, Inc.,
93 F.3d 155, 165 (5th Cir. 1996); Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055,
1062 (7th Cir. 2014); Miller v. Nat'l Cas. Co., 61 F.3d 627, 629-30 (8th Cir.
1995).) By contrast, “reasonable efforts” are an integral and required part of
reemploying service members who return disabled, naturally giving rise to stand-
alone liability for the failure to engage in such efforts. (See 20 C.F.R. §
1002.198(b) [“reasonable efforts must be made”].)
Communication is a cornerstone of providing disability accommodations.
When an employee with a disability requests a reasonable accommodation, the
employer must communicate in a flexible, interactive discussion to determine the
most suitable accommodation. (EEOC v. LHC Grp., Inc., 773 F.3d 688, 697 (5th
Cir. 2014).) It is a problem-solving approach, where both parties collaboratively
identify barriers and potential solutions. (29 C.F.R. § 1630.9, appendix.) While the
employee might have insights into potential accommodations, the employer, with Appellees Brief Page - 16 - its broader perspective on workplace operations, might identify alternative
solutions that are equally effective. (§ 1630.9, app.) In some cases, the disability
and the type of accommodation required are evident, minimizing the need for
extensive discussions. (§ 1630.9, app.) In other situations, the employer might need
more information about the disability or the challenges it poses in the workplace.
(§ 1630.9, app.)
Adequate communication is a necessary and required part of reemploying a
disabled service member in accordance with USERRA (See 20 C.F.R. §
1002.198(b) [“reasonable efforts must be made”].); and it is a crucial step to avoid
confusion and misunderstandings. (Lett v. SEPTA (E.D.Pa. Nov. 26, 2021) 2021
U.S.Dist.LEXIS 227296, at FN. 14 ["had SEPTA engaged in the interactive
process, it likely could have cleared up Lett's confusion...."]; Powers v. USF
Holland Inc. (N.D.Ind. June 25, 2015) 2015 U.S.Dist.LEXIS 82324 ["This failure
to follow-up could be inferred on summary judgment as having caused the
breakdown in the interactive process (again, whether or not the initial documents
were actually confusing)"]; Georgia v. City of Bridgeport (D.Conn. Aug. 10, 2020)
2020 U.S.Dist.LEXIS 142506 ["While it is true Defendant did not understand why
transfer was a reasonable accommodation, it did not understand because it failed to
engage in the interactive process by failing to explain the basis of its confusion to
Appellees Brief Page - 17 - Plaintiff's physician or to request further information from Plaintiff, though she
offered to provide it."].)
Effective communication is not just a courtesy—it is a legal obligation,
especially when it comes to accommodating disabled veterans under USERRA.
The interactive dialogue between an employer and an employee is designed to be a
collaborative process, where both parties work together to identify potential
barriers and solutions. This dialogue is not just about ticking boxes; it has real-
world implications for employees like Captain Torres. It simply did not happen in
this case.
TXDPS claims without supporting evidence to have followed an “interactive
process” for Captain Torres that was only ended by his resignation. However, the
evidence here shows there was no process at all. The TXDPS Representative at
trial, Major Palmer, instead testified there is nothing to show any action was taken
regarding his October request and that no one contacted Captain Torres at all:
Q. (by Mr. Lawler) I'm sorry, sir. I didn't mean to interrupt you. You are aware that Mr. Torres made an accommodation request on January 10th, 2011? A. Yes. Q. Okay. And then he made another one on October 25th, 2011? A. Yes. Q. Okay. Let's talk about the second one, the one -- the October 25th memo. Let's just call it that. A. Yes, sir. Q. Major -- then Captain -- Lawson on October Appellees Brief Page - 18 - 25th sent a memo to Major Lopez recommending that transfer that Mr. Torres requested to driver's license office; isn't that correct? A. Yes. Q. Then what happened with the process? It went at some point to HR, didn't it, his request? A. It's not clear. It's not clear in the record where that memo went. Q. It's not clear. That's the point. Do you know where it went? A. I do not. Q. Do you know what action was taken on it? A. I do not, not that memo. Q. Who from DPS ever told Mr. Torres what was happening with that request? A. The record doesn't make that clear. Q. The answer is no one, isn't it?
**** Q. (By Mr. Lawler) The answer is no one, isn't it? A. To my knowledge. Q. To your knowledge, no one contacted Mr. Torres? A. To my knowledge, no one.
**** Q. (by Mr. Lawler) Between October 25th, the memo, 2011 and August 6th, 2012, who, if anyone, from DPS contacted Mr. Torres about the status of his permanent accommodation request? A.I don't recall anything in the record.
(RR-6 p.75, 78)
The interactive process, as emphasized in cases like EEOC v. LHC Grp., Inc.
(supra) is not a mere formality. It is crucial when dealing with service members
Appellees Brief Page - 19 - returning from deployment, as they may have unique needs and challenges that
require more specific understanding of the employee’s issues that require the
accommodation. Here, TXDPS plainly admitted through its representative that
nothing at all was actually done in regard to this request.
Captain Torres's experience with TXDPS paints a picture of a systemic
breakdown in this essential process. The internal HR memo on December 16,
2011, (RR-11 Exh. 5) serves as a stark reminder of this breakdown. Quite simply,
after Captain Torres requested a reasonable accommodation and Captain Lawson
approved it and forwarded it up her chain of command, TXDPS took no further
action to facilitate Captain Torres' accommodation request. Everything, instead,
remained “on hold.”
Furthermore, the instruction Captain Lawson and Sgt. Benavides gave to
Captain Torres advising him to resign further underscores TXDPS’ communication
failures and the jury’s answers in this case. (RR-4, pp. 71-72, RR-12 Exh 116) This
advice, combined with the nearly ten-month long complete failure in TXDPS’
“interactive process” for Captain Torres's transfer and accommodation, left him
devoid of options. He unfortunately had no alternative but to resign a position he
intended to keep for 30 years. (RR-4 p.65-66)
Appellees Brief Page - 20 - 3. THE TRIAL COURT DID NOT ERR BECAUSE THE EVIDENCE SUPPORTED THE JURY VERDICT AND PLAINTIFF IS ENTITLED TO AN AWARD OF ATTORNEYS’ FEES
With the clear facts and evidence showing no process at all occurred
regarding Captain Torres’ request for accommodation, TXDPS now seeks to
eliminate the damages and attorneys’ fees that were properly proven and awarded.
a. Captain Torres is Entitled to an Award of His Attorneys’ Fees Under USERRA
TXDPS asserts that under Texas Law, the courts require that juries
determine the reasonableness of any fees and therefore Plaintiff should have done
so at trial here. Unfortunately for Defendant, this case does not arise under Texas
Law. As the U.S. Supreme Court concluded earlier in this case, Texas is not
immune from the requirements/enforcement of USERRA, which is a Federal law 3.
Therefore, the requirements of USERRA must be followed by the Texas Courts.
Under USERRA “In any action or proceeding to enforce a provision of the chapter
by a person … who obtained private counsel for such action or proceeding, the
court may award any such person who prevails in such action or proceeding
reasonable attorney fees, expert witness fees, and other litigation expenses.” (38
U.S.C. § 4323(h)(2) (emphasis added)).
3 TXDPS originally challenged Captain Torres’ suit based on its asserted sovereign immunity from a USERRA lawsuit in Texas State Court. The Supreme Court rejected this argument and held no state may assert sovereign immunity to a USERRA lawsuit in its state courts. Torres v. Texas Dept. of Public Safety, 597 U.S. 580 (2022). Appellees Brief Page - 21 - Under Federal law a prevailing party may move for the court
to award attorneys' fees as allowed under Fed. R. Civ. P. 54(d). Most importantly,
“[a] fee award is governed by the same law that serves as the rule of decision for
the substantive issues in the case.” Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th
Cir. 2002). Here, it is abundantly clear that USERRA is the only law applied to the
substantive issues of this case and accordingly its provisions for attorneys’ fees,
namely being awarded by the court, not the jury, necessarily control.
Captain Torres has shown he is entitled to attorneys’ fees under USERRA.
“In light of Appellant’s recovery under USERRA, … he is a prevailing party and
thus entitled to attorneys’ fees and costs.” Fryer v. A.S.A.P. Fire Safety Corp., 750
F. Supp. 2d 331, 335 (D. Mass 2010) (emphasis added)). As pointed out in the
extensive briefs and hearing on this issue, Section 4302 also provides:
(b) This chapter supersedes any State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.
(38 U.S. C. § 4302)
Texas state procedural case law on when to present attorneys’ fees is not a
barrier to Captain Torres seeking reasonable and necessary attorney’s fees under
USERRA. It is clear that USERRA prevents any State Law that would reduce or
Appellees Brief Page - 22 - eliminate Captain Torres’ benefit of receiving reasonable and necessary attorneys’
fees, subject to the discretion of “the Court.” The attorneys’ fees award here is not
affected by any of the complaints made by Defendant and were properly awarded
by the Court.
The trial court was presented with detailed contemporaneous records and
affidavits supporting the lodestar fee award and, in its discretion, awarded those
fees. (RR-8 RR-1477) Captain Torres’ attorneys timely designated themselves as
fee experts and presented and admitted into the record affidavits supported by
evidence. (RR-8 p.23 RR-1477) TXDPS did not object to the reasonable amount of
hours worked, did not designate an expert to opine about the reasonableness of the
rates requested, and the unauthenticated exhibits they attached to their response
were properly objected to. (RR-8 pp. 18, 41-43) Thus, as Federal law applies and
the designated experts presented abundant proof of the reasonable and necessary
lodestar fees, the trial court did not err in awarding reasonable and necessary
attorneys’ fees.
b. Captain Torres Was Entitled to the Damages Awarded in Accordance With USERRA
Service members who leave their civilian employment to serve in the
military have a fundamental right to be fully reintegrated into jobs upon
completing their service. USERRA sub-sections 4313(a)(1)(A) and (B) provide,
Appellees Brief Page - 23 - specific to the benefit of reemployment, “…a person is entitled to
reemployment…[and] shall be promptly reemployed in a position of employment
in which the person would have been employed if the continuous employment of
such a person with the employer had not been interrupted by such
service…[including] status and pay…” or “in the position of employment in which
the person was employed on the date of the commencement of the service in
uniformed services….” That means returning service members are reemployed in a
position that reflects the trajectory their career would have taken had they not been
absent for military service. This could mean a promotion, a raise, or other job
benefits that the servicemember would have attained with reasonable certainty if
not for the absence due to military service. (See 38 U.S.C. § 4313; 20 C.F.R. §
1002.191 (“As a general rule, the employee is entitled to reemployment in the job
position that he or she would have attained with reasonable certainty if not for the
absence dues to uniformed service. This position is known as the escalator
position.”)))
There are, however, instances where reemploying the service member in
their original or escalator position might not be feasible, especially if the
servicemember has incurred a disability during their service, like Captain Torres.
In such cases, employers must make “reasonable efforts” to accommodate the
servicemember's disability and appropriately reemploy them in a suitable position Appellees Brief Page - 24 - of equivalent seniority, status, and pay, the duties of which they are qualified to
perform or could become qualified to perform with reasonable efforts by the
employer. (38 U.S.C. § 4313(a)(3); 20 C.F.R. § 1002.225(a)). “If a position other
than the ‘escalator’ position is offered to a returning disabled servicemember, full
company seniority for all purposes is always to be accorded the disabled service
person, regardless of whether seniority follows an employee under other
circumstances.” (H.R. Rep, No. 103-65, pt. 1, at 31-32 (1993), as reprinted in 1994
U.S.C.C.A.N. 2449, 2464-2465 (citing Hembree v. Georgia Power Co., 637 F.2d
423 (5th Cir. 1981); and Ryan v. City of Philadelphia, 559 F.Supp. 783 (3rd Cir.
1984)).
If the employee cannot become qualified for the equivalent position with
reasonable accommodation and qualification efforts by the employer, the employee
must be placed in a position that, consistent with the circumstances of his or her
case, is the nearest approximation to the equivalent position in terms of seniority,
status and pay. (38 U.S.C. § 4313(a)(3)(B); 20 C.F.R. § 1002.225(b) (emphasis
added); see also H.R. Rep, No. 103-65, pt. 1, at 31-32 (1993), as reprinted in 1994
U.S.C.C.A.N. 2449, 2464 (“If no such [equivalent] position exists, the nearest
approximate position in terms of seniority, status and pay would be required to be
found.”); 70 Fed. Reg. 75246, 75277 (Dec. 19, 2005), available at 70 FR 75246-01,
at *75277.) Appellees Brief Page - 25 - TXDPS baselessly claims that Captain Torres requested an accommodation
to the Driver’s License office in a non-commissioned position, and therefore his
lost wages should be calculated on the basis of that lower paying position. (TXDPS
Appellate Brief pp. 20-23) TXDPS could not be more wrong. As Congress and the
Fifth Circuit in Hambree confirmed above, “full company seniority for all
purposes” was to be accorded to Captain Torres, whether he knew he was entitled
to those benefits. (H.R. Rep, No. 103-65, pt. 1, at 31-32 (1993), as reprinted in
1994 U.S.C.C.A.N. 2449, 2464-2465 (citing Hembree, 637 F.2d 423) In other
words, just because Captain Torres requested a lower paying job without
understanding his rights, does not mean he is not entitled to the higher pay
associated with his seniority. He is, and the law on this point is clear.
TXDPS fails to state any factual or legal basis for its conclusion that an
improper measure of damages was awarded, and that Captain Torres should have
only been paid as a Driver’s License Examiner. TXDPS’ assertion is in fact the
exact opposite of what USERRA requires as outlined above. The jurors were
presented with extensive pay, promotion and retirement documentary evidence and
live calculations based on the position Captain Torres would have had but for his
military service and resulting service-connected injury, including all seniority-
based pay raises and annual pay increases TXDPS implemented for its employees.
(RR-4 pp.79-109, 126-133 RR-11 Exh’s. 68, 69, 104, 106, 109, 112, 113, 115, Appellees Brief Page - 26 - 117) The accurate pay and benefit numbers were established during the testimony
of Captain Torres using TXDPS’ own published pay scales and pay raise records,
as well as ERS retirement calculation records. (RR-11, Exh. 117) All correct and
applicable pay scale and pay categories were testified to and added up in front of
the jury and admitted into evidence. (RR-4 pp.79-109, 126-133 RR-11 Exh’s. 68,
69, 104, 106, 109, 112, 113, 115, 117) TXDPS’ argument that Captain Torres
should have instead had lesser pay is in direct contravention of USERRA’s
requirements. Therefore, there is no error by the trial court and the factual basis for
the damages awarded are supported by the evidence.
c. TXDPS States no Basis for a Remittitur
TXDPS requested the trial court to grant a remittitur on the damage award
for the same reasons outlined in section (a) above and now complains of error. The
standard for remittitur of an actual damages finding is factual sufficiency. (Pope v.
Moore, 711 S.W.2d 622, 624 (Tex. 1986)). The court must examine all the
evidence to determine whether there is sufficient evidence to support the damage
award and suggest a remittitur only if some portion is so factually insufficient or
against the great weight and preponderance of the evidence as to be manifestly
unjust. (See id.)
As stated above, USERRA requires servicemembers to be reemployed in a
position that reflects the trajectory their career would have taken had they not been Appellees Brief Page - 27 - absent for military service. This could mean a promotion, a raise, or other job
benefits that the servicemember would have attained with reasonable certainty if
not for the absence due to military service. (See 38 U.S.C. § 4313.) As discussed
above, the jury was presented with detailed documentary evidence of pay scales,
promotion dates, pay rates and testimony regarding the appropriate level of pay for
each year Captain Torres was denied reemployment and the value of his
retirement. (RR-4 pp.79-109, 126-133 RR-11 Exh’s. 68, 69, 104, 106, 109, 112,
113, 115, 117) There is more than sufficient evidence in this case for the jury to
determine the proper damages awarded and the trial court did not err in denying
Remittitur.
PRAYER
Therefore, Plaintiff/Appellee Captain Le Roy Torres respectfully requests
that this Court affirm the trial court’s Judgment and award of attorneys’ fees in all
respects.
Respectfully submitted,
By: /s/ Stephen J. Chapman Stephen J. Chapman WEBB, CASON & MANNING 710 Mesquite Street Corpus Christi, Texas 78401 Telephone: (361) 887-1031 Facsimile: (361) 887-0903 State Bar No. 24001870 steve@wcctxlaw.com Appellees Brief Page - 28 - Brian J. Lawler Pro Hac Vice PILOT LAW, P.C. 4632 Mt. Gaywas Dr. San Diego, California 92117 Telephone: (619) 255-2398 Facsimile: (619) 231-4984 blawler@pilotlawcorp.com
CERTIFICATE OF COMPLIANCE
Microsoft Word reports that this brief contains 6231 words, excluding the
portions of the brief exempted by Rule 9.4(i)(1).
/s/ Stephen J. Chapman Stephen J. Chapman
Appellees Brief Page - 29 - CERTIFICATE OF SERVICE
I, Stephen J. Chapman, certify that a true and correct copy of the foregoing
instrument was forwarded to all counsel of record as required by the T.R.A.P., on
this the 16th day of December, 2024.
Ken Paxton Jeffrey C. Mateer Scott A. Keller John C. Sullivan (lead counsel) Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548
Jason T. Contreras Assistant Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548
/s/ Stephen J. Chapman Stephen J, Chapman
Appellees Brief Page - 30 - Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Jennifer Pena on behalf of Stephen Chapman Bar No. 24001870 jennifer@wcctxlaw.com Envelope ID: 95360254 Filing Code Description: Brief Requesting Oral Argument Filing Description: Appellee's Brief Status as of 12/16/2024 3:01 PM CST
Associated Case Party: Texas Department of Public Safety
Name BarNumber Email TimestampSubmitted Status
Jason Contreras Jason.contreras@oag.texas.gov 12/16/2024 2:39:04 PM SENT
Nicole A.Myette nicole.myette@oag.texas.gov 12/16/2024 2:39:04 PM SENT
Associated Case Party: Leroy Torres
Stephen Chapman 24001870 steve@wcctxlaw.com 12/16/2024 2:39:04 PM SENT
Brian J.Lawler blawler@pilotlawcorp.com 12/16/2024 2:39:04 PM SENT
Matthew Manning 24075847 service@wcctxlaw.com 12/16/2024 2:39:04 PM SENT
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