Court OKs Bemidji State prof’s suit over Iraq war job cut

The 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.

  • This is an unexpectedly difficult case because – as you say, he didn’t hire a lawyer. That said, I’m wonder how long an absence is reasonable. It is asking quite a lot to announce that you are going to be out of the office for three years! In that time one could expect technology evolution, changes in demand, a significant gap in knowledge of best practices in one’s field, and so on.

    • Five years.

      • Wow, that would be like going back to a completely new job.

        • Support the troops.

        • Kassie

          There probably is some change in most jobs over that time, but I would guess your average employee (Vets included) could pick up 5 years of changes in a month or so. If there was a significant technology change an employer would have had to train staff on it, so training someone coming back would be no different.

          • Well, that depends. In a 5 year interval there might be little change in some jobs and vast changes in others. If an employer converted a job that involved face to face teaching to one that provided on demand distance education via video streaming and on line communication, it would be very challenging for some people to learn the necessary skills in a month.

          • There’s a provision addressing that in the law.

    • Laurie K.

      Is it reasonable to expect the men and women of our armed services to protect our country but then give them no job protection in return?

      • They are not guaranteed the same job on return. They may be accommodated at a similar job that fulfills the non-discrimination language in the law.

  • Brian Simon

    It makes a lot of sense to protect service members’ jobs such that their employers don’t just fill the open position. but it doesn’t necessseem fair to the employer to say they can’t change their business while employees are away on a tour of duty. If this guy had been home & they cut his department, he wouldn’t have a case (not this case anyway). But it happened while he was away; are they now obliged to offer a course he can teach even if there’s not demand for it? That doesn’t make a lot of sense either. Seems he should get whatever severance package he’d have received if he were home when this happened.

    • The law doesn’t say they can’t change their business, though.

      “If the employee is not qualified to perform the duties of the escalator position, the pre-service position, or a like position, after reasonable efforts by the employer, he or she must be reemployed in any other position that is the nearest approximation first to the escalator position and then to the pre-service position. The employee must be qualified to perform the duties of this position. The employer must make reasonable efforts to help the employee become qualified to
      perform the duties of this position.”

      It doesn’t seem like a temporary teaching job at less pay qualifies.

  • Angry Jonny

    “I wish to act as my own attorney.”

    Music to any opposing lawyer’s ears.

    • Kassie

      During my divorce, my ex’s attorney offered to act as my attorney too. Whole thing could of easily been done without attorneys, but the second he got one, I knew I needed one too. If they have an attorney, you need an attorney with maybe an exception for housing court and things under $1000.

      • What’s the old joke?

        “What do you call a lawyer in a one-lawyer town?”


        “What do you call a lawyer in a two-lawyer town?”

        Well, you know.

    • RBHolb

      Anyone who acts as his own attorney has a fool for a client.

  • Laurie K.

    Although the plaintiff in this action did not hire an attorney for the case that was dismissed by the district court, he was represented by a seasoned labor and employment firm at the appellate level.

    • Right, but isn’t it the case that you can’t bring up issues on appeal that you didn’t bring up in district court? So he couldn’t have brought up USERRA on appeal then, right?

      • Laurie K.

        Correct – in this case fortunately the plaintiff did assert a claim for USERRA at the district level. Although my reading of the decision is that if he had not, he still would have been able to bring a claim because there is no statute of limitations for USERRA claims.

        • Did he, though? He made claims of emotional distress bit only seemed to cite the law in referring to forms he was promised. Seems if he made a claim under the law, he wouldn’t have had the suit tossed because he didn’t prove emotional distress.

          • Laurie K.

            From the decision “[i]n 2011, appellant sued respondent in tort, citing USERRA violations.” And “[a]lthough the complaint alleged USERRA violations, Breaker did not seek relief under USERRA.” At the time of his suit the Minnesota Legislature had not passed the law waiving state sovereign immunity from USERRA claims. The first suit was thrown out because he could not show sufficient extreme and outrageous behavior. Breaker brought a new complaint in 2016 where he asserted and sought relief under USERRA. It is not clear, by the way, whether he had legal representation for the 2016 claims.

          • I thought so too. But then I read the first Court of Appeals opinion.

          • Laurie K.

            Hmmm I will have to look at it – but I don’t believe that 2011 case is relevant other than BSU argued that the dismissal of that case foreclosed all claims by Breaker including USERRA claims. The COA said today that because the state had not waived sovereign immunity until 2012 – there was no way that Breaker could have legally asserted an USERRA claim in 2011.

          • Right, the section analyzing whether Congress had given states ability waive sovereign immunity , though deep in the weeds, was really interesting.

          • Laurie K.

            I think the 2016 case and the COA decision are all about Minnesota’s ability to waive sovereign immunity. FYI, two things I have found out since this ruling – 1) The MN House passed the measure to allow service members to sue the state for violating USERRA because of Mr. Breaker’s efforts and 2) Mr. Breaker now has a degree in law.

  • Jack

    There are lots of protections for service members. One needs to tread lightly through any dealings with active or could be recalled service members. Many employers and financial institutions are finding that out.

    Like someone said below, it all goes back to extended wars. Just how long has it been since we weren’t in some type of declared or undeclared war?

    • Companies sure like to wave the flag and say “support our troops”, though.