Bob CollinsThe Minnesota Court of Appeals has reinstated a suit by a former business administration professor who says Bemidji State University did not hold his job for him when he shipped out to Iraq.
In 2005, the Army recalled Martin Breaker, a reservist, and when he informed BSU that he intended to return in 2008, the state university said his previous positions had been eliminated. It offered him a temporary position at less pay.
Under the Uniformed Services Employment and Reemployment Rights Act of 1994, members of the military are protected from discriminatory practices because of their military service. Reemployment rights are guaranteed up to five years.
Breaker, a colonel, lived in Ely, Minn., and worked for the Bemidji State’s off-campus business program. While he was gone, the school shifted its focus to online classes.
Breaker sued the state, the Minnesota State Colleges and Universities System, and Bemidji State, arguing they “engaged in extreme and outrageous
conduct” by failing to rehire Breaker in a position similar to that which he held before deployment.
The veteran, who acted as his own attorney in the case, cited the law as a reason for his suit alleging emotional distress, but he didn’t actually sue under the law. Instead, he pursued a claim of emotional distress caused, in part, by the school’s failure to provide him forms required under the USERRA law.
That was a mistake because a district court threw the case out, and the Court of Appeals earlier upheld the decision.
The irony is that at the time, Breaker believed he couldn’t argue his case under the law that protected soldiers because when a state is sued by its own citizens for damages under a federal law, sovereign immunity bars any damages.
Things changed, though, when the Minnesota Legislature passed a law in 2012 stripping that immunity.
So Breaker sued again, citing the Legislature’s decision to remove the immunity as well as the objections of the state, the school and the Minnesota State universities system, which argued the suit had already been settled.
This is why you should hire a lawyer.
Under the law, if a court ruled that immunity didn’t actually exist at the time of the first suit, the current suit would be thrown out because the claims had been argued and settled. In fact, that’s exactly what the district court said.
Today, however, the Minnesota Court of Appeals ruled that Breaker never got the chance to argue his claims under the federal law. So he’s free to pursue them again.
“We note that our decision has no bearing on the merits of Breaker’s claims. We merely hold that the state is not entitled to dismissal on res judicata [already settled] grounds,” Judge Diane Bratvold wrote on behalf of the three-judge panel.
If this seems like a lot of gymnastics a soldier has to go through just to get his job back, you’re not alone.
Step back for a second and consider the federal law and what happened to Mr. Breaker. It shouldn’t have.
