I previosuly wrote about the decision in Torres v. Dept. of Public Safety, 583 S.W.3d 221 (Tex.App. Corpus Christi) here. Later, after I wrote that post, the Texas Supreme Court denied Mr. Torres’ request for appeal. Now. Torres is appealing this decision to the U.S. Supreme Court. On appeal, the Office of the Attorney General is defending the appeal. The point of the Uniformed Services Employment and Reemployment Act (USERRA) is to protect service members, including National Guardsmen from discrimination. The Torres decision holds that Guardsmen who are employed by state agencies have no right to a lawsuit under USERRA.
Remedy Other than Lawsuits
The Torres v DPS case is now on appeal with the U.S. Supreme Court. The U.S. Supreme Court accepted the appeal. AG Ken Paxton claims in this appeal that Texas Guardsmen have remedies other than a USERRA lawsuit. He points to the Department of Labor. The DOL operates through a quasi-public entity known as the Employer Support of the Guard (ESGR). ESGR means well, but they often accomplish nothing. ESGR tries to work out employment problems through persuasion. But, often, ESGR simply postpones legal action by the Guardsmen until it is too late to seek remedy. AG Paxton adds that if DOL cannot work out an informal solution, then DOL can refer the matter to the US Attorneys office. See Brief in Opposition, Cause No. 20-603, p. 4. So, Paxton points to another “maybe” – something that might happen or might not. In reality, the US Attorney has many lawsuits which demand his attention.
And, in reality, according to DOJ’s own report to Congress, out of the thousands of Guard and Reservist discrimination cases reported to DOL since 1994, DOJ has only filed 107 such lawsuits. That means thousands of Reservists and Guardsmen have suffered discrimination with no remedy.
Tex.Govt.C. Sec. 437.412
AG Paxton then adds that if DOL cannot help the Guardsmen, a Texas Guard member can file suit under Tex. Govt. Code Sec. 437.412. But, this lawsuit is limited to instances when the Guardsmen has been fired due to having been called to training or active duty. Govt.C. Sec. 437.204. USERRA is more broad. The USERRA applies to any discrimination based on military “affiliation.” The USERRA specifically applies to any service member even if s/he has not actually performed duty in the uniformed services. 38 U.S.C. Sec. 4311(b).
Govt. Code Sec. 437.412 only applies to actual termination and only to termination connected to actual training or active duty. Govt.C. Sec. 437.204. While, the USERRA applies to any loss of benefit, failure to re-employ, lack of promotion, etc. 38 U.S.C. Sec. 4311(b) and (c). The USERRA applies to membership, application for membership, obligation of service, participation in an investigation of a violation, and even to simply making a statement pursuant to a violation of the USERRA. 38 U.S.C. Sec. 4311(c). The USERRA applies even to persons whose “membership” in the military served as a motivating factor in the adverse employment decision. This broad use of the term “membership” indicates that even prior membership in the military violates the USERRA. Whereas, Govt. Code Sec. 427.412 only applies to current members of the Guard.
Statute of Limitations
Give. Code Sec. 437.402 allows an affected Guardsmen to file a complaint with the Texas Workforce Commission, Civil Rights Division. That sounds similar to any complaint of discrimination. But, Sec. 437.412 does not indicate when such a complaint must be filed. Most discrimination complains must be filed within six months of the act of discrimination. Since Sec. 437.001 only applies to terminations, the complaint probably must be filed within six months of the termination.
Tex.Govt.C. Sec. 437.412 then requires that a lawsuit be filed within 60 days of a notice of right to file suit. But, the USERRA does not have a statute of limitations. So, if a Guardsman, for example, relies on ESGR to work out his employment issues, he may miss the initial six month deadline. ESGR is composed of volunteers. There is a paid coordinator. But, the ESGR workers themselves are volunteers. So, the process generally takes a very long time.
Worse, Govt. Code Sec. 437.412 is an obscure statute. I have never heard of it. The statute has only been around since 2011. A quick search of Westlaw indicates only one mention of Sec. 437.001 since 2011: in that same Torres v. DPS decision from 2018.
Never Experience Discrimination
So, AG Paxton, the chief law enforcement officer of the state, is referring aggrieved Guardsmen to: 1) a DOL process that overlooks thousands of complaints and 2) to a statute that has never been used. Indeed, in his appeal brief, AG Paxton notes there are no reported decisions for Sec. 437.001. Paxton thinks that means Texas Guardsmen never experience discrimination. Brief in Opposition, p. 5. . . . That’s a good one! AG Paxton clearly has a sense of humor.
But, seriously, Paxton’s claim is ludicrous. Every Guardsman and every Reservist faces some pressure to modify his/her training to suit a civilian employer. That is just a fact of life in the Guard. That Paxton’s office would make such a silly claim suggests the AG’s office is flat lying, or they have chosen to not talk to an actual member of the Texas Guard before filing its brief on a major appeal.
Having served 28 years in the National Guard in two states and in the Reserves, I can attest that Paxton is quite wrong. Guardsmen suffer discrimination on a regular basis. Most of us, however, find other ways to cope. In my own firm, I always seem to represent a Guardsman or Reservist who was fired due to his Guard/Reserve membership. In the state’s motion to dismiss one my cases, the AG’s office pointed to two Guard lawsuits which were dismissed due to the holding in Torres v. DPS. And, of course, Capt. Torres claims he was fired due to his membership in the Texas Guard. So, there are three cases right there of discrimination, which Paxton’s office denies has ever occurred.
AG Paxton is not supporting Texas Guardsmen. No one forced him to file a motion to dismiss in the Torres case. AG Paxton is supporting the state employer. But, he is not supporting members of the Texas National Guard.
In a recent lawsuit in which I represented a combat veteran, the Assistant U.S. Attorney did not file a motion to dismiss. The evidence developed well for the plaintiff, my client. So, the AUSA suggested mediation. The Assistant US Attorney was a member of the Reserves himself. That is what a government attorney who supports veterans will do. He will avoid dismissal motions and suggest settlement talks if the evidence favors the veteran. AG Paxton does not support veterans.