Opinion

Texas Department of Public Safety v. Leroy Torres

Court: Texas Court of Appeals, 15th District
Filed: Dec 16, 2024
Status: Published
Cited by: 0 cases
Authority: More cited than 33.5%

"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."

How later courts described this case

"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."
"[P]rovisions for benefits to members of the Armed Services are to be construed in the beneficiaries' favor."
The law “must be read with an eye friendly to those who dropped their affairs to answer their country's call.”

Written by the judges who cited it.

The 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,

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

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

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

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)).

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 -