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Supreme Court takes up military discrimination spat

Not quite ready for winter break, the high court added a trio of employment disputes to its docket.

WASHINGTON (CN) — A Texas state trooper who was denied a disability accommodation after his last tour in Iraq will go before the Supreme Court in 2022 to argue that states are not immune from military discrimination claims.

Le Roy Torres had been juggling his job with the Texas Department of Public Safety and his duties as a U.S. Army reservist for 18 years before he deployed to Iraq in 2007 and sustained lung damage through exposure to toxic fumes from burn pits.

Diagnosed with constrictive bronchiolitis, Torres says his breathing problems mean he is no longer able to perform all the duties of a state trooper. According to his petition for a writ of certiorari, however, the department gave him two options: return to work as a state trooper or be fired. 

Torres went on to co-found a nonprofit, Burn Pits 360, with his wife for other victims and sued his ex-employer for damages under the Uniformed Services Employment and Reemployment Rights Act of 1994. Represented by Arnold & Porter, the Chapman Law Firm and Pilot Law, he seeks a reversal now after a state appeals court ruled that the law unconstitutionally authorizes lawsuits against the states. 

“The decision thwarts the aims of a federal law duly enacted to protect veterans and servicemembers, leaves untold numbers of veterans and servicemembers without a remedy when states discriminate against them on the basis of their service, and calls into doubt Congress’s power to authorize lawsuits against nonconsenting states pursuant to its War Powers even in times of urgent national need,” their petition states. 

The case asks the Supreme Court if Congress has the power to authorize suits against nonconsenting states pursuant to its War Powers. 

It is one of three cases that the justices accepted without comment Wednesday morning, as is their custom.

Another case in the new order list comes from locomotive engineer Bradley LeDure who was injured while on the job in 2016. LeDure was working on a railcar in August 2016 when he slipped in an oily substance in one of the cars. Union Pacific Railroad Company was required to conduct daily inspections on the cars, but no inspection of the car where LeDure was injured occurred for three days because it had been on an active track and not in the dedicated maintenance area. 

LeDure was diagnosed with spine, shoulder and closed head injuries following the fall. Declared permanently disabled from railroad work, he then sued Union Pacific under the Locomotive Inspection Act and the Federal Employers’ Liability Act. The company secured summary judgment in U.S. District Court, however, and the Seventh Circuit affirmed.

The law firm Schlichter Bogard & Denton represent LeDure, whose petition for certiorari asks if a locomotive is in use and subject to LIA and safety regulations while making a temporary stop in the railyard. 

The court will also hear from Viking River Cruises in an arbitration spat with Angie Moriana, a former sales representative who took action against the company for civil penalties under California’s Private Attorney’s General Act. Viking sought to compel individual arbitration and to stay the court proceedings, citing an agreement Moriana signed upon her employment in which she agreed not to take up class action suits in the event of an employment-related disputes. 

A California appeals court affirmed that arbitration of Moriana’s claims cannot be compelled. The cruise company asks the court if the Federal Arbitration Act requires arbitration agreements including under PAGA. 

It is represented by Kirkland & Ellis as well as Littler Mendelson.

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