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Breaker v. Bemidji State University

Court of Appeals of Minnesota

June 12, 2017

Martin T. Breaker, Appellant,
v.
Bemidji State University, et al., Respondents.

         Ramsey County District Court File No. 62-CV-16-688

          Gregg M. Corwin, Joshua M. Erspamer, Gregg M. Corwin & Associate Law Office, P.C., St. Louis Park, Minnesota (for appellant)

          Lori Swanson, Attorney General, Janine Kimble, Assistant Attorney General, St. Paul, Minnesota (for respondents)

          Considered and decided by Bratvold, Presiding Judge; Kirk, Judge; and Toussaint, Judge. [*]

         SYLLABUS

         State sovereign immunity barred private damages actions against state employers based on violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA) until after the state expressly permitted USERRA civil actions in 2012 Minn. Laws ch. 192, § 1, at 1 (codified at Minn. Stat. § 1.05, subd. 5 (2016)).

          OPINION

          BRATVOLD, Judge

         Appellant challenges the district court's dismissal of his claims against respondent, a state university and his former employer. In 2011, appellant sued respondent in tort, citing USERRA violations. USERRA requires state employers to promptly reemploy employees upon completion of military service, prohibits discrimination against employees based on their military status, and provides for exclusive state jurisdiction over private damages claims against state employers. 38 U.S.C. §§ 4301(a)(1)-(3), 4323(b)(2) (2016). The district court dismissed appellant's first lawsuit, and this court affirmed. Breaker v. Bd. of Trs., Minn. State Colls. & Univs. (Breaker I), No. A11-2286, 2012 WL 2874038 (Minn.App. July 16, 2012), review denied (Minn. Sept. 25, 2012). In April 2012, while the Breaker I appeal was pending, the Minnesota Legislature enacted a new law that permitted plaintiffs to bring civil actions against the state for USERRA violations. 2012 Minn. Laws ch. 192, § 1, at 1 (codified at Minn. Stat. § 1.05, subd. 5).

         In this case, appellant sued respondent for violating USERRA based on the same factual circumstances supporting his tort claim in Breaker I. Appellant argues the district court erred when it applied res judicata because he did not receive a full and fair opportunity to litigate his USERRA claims in Breaker I. More specifically, appellant asserts that his USERRA claims would have been barred in Breaker I because sovereign immunity precluded USERRA claims until legislative changes were made in 2012, which occurred after Breaker I was dismissed. We conclude that the district court erred and, therefore, reverse and remand for additional proceedings.

         FACTS

         Between 1997 and 2005, appellant Martin Breaker was a faculty member at respondent Bemidji State University (BSU), [1] working as an assistant professor and program coordinator in the business department. In 2005, the U.S. Army Reserve called Breaker into active military duty. In 2008, Breaker notified BSU that he intended to return to work. According to the complaint, BSU informed Breaker that his prior positions had been eliminated and offered him a temporary fixed-term teaching position. Breaker declined because the position was "at a lesser rate of pay, status, seniority, opportunity, and in a different location than the one that [he] held prior to his military service."

         In 2011, Breaker, proceeding as a self-represented litigant, sued BSU, the State of Minnesota, Minnesota State Colleges and Universities, and several individual defendants in state court, claiming intentional infliction of emotional distress. See Breaker I, 2012 WL 2874038. The complaint alleged that the defendants engaged in extreme and outrageous conduct by failing to rehire Breaker in a position similar to that which he held before deployment. Id. at *1. Although the complaint alleged USERRA violations, Breaker did not seek relief under USERRA. Id.

         The defendants moved for judgment on the pleadings, asserting that the complaint failed to plead a legally sufficient claim. Id. On October 20, 2011, the district court granted the motion, and this court affirmed on July 16, 2012, reasoning that Breaker's complaint did not sufficiently allege extreme and outrageous conduct by the defendants. Id. at *2.

         In April 2012, the Minnesota Legislature passed a law waiving state sovereign immunity from USERRA claims. 2012 Minn. Laws ch. 192, § 1, at 1. In February 2016, Breaker sued BSU and asserted two USERRA claims.[2] The complaint alleged that BSU failed to rehire him into a "position of like seniority, status and pay" in violation of 38 U.S.C. § 4312-13 (2016), and took adverse employment action against him on the basis of his military status in violation of 38 U.S.C. § 4311 (2016).

         BSU moved to dismiss the complaint with prejudice, arguing that res judicata barred Breaker's USERRA claims. The district court determined "that nothing prevented [Breaker] from bringing his USERRA claims" in Breaker I. The district court therefore concluded that res judicata barred Breaker's claims and dismissed the complaint. Breaker appeals.

         ISSUE

         Did the district court err in determining that res judicata barred Breaker's USERRA claims because he had a full and fair opportunity to litigate in Breaker I, which was dismissed before ...


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