LAW REVIEW 1144
PTSD, USERRA, and the State of New Mexico
By Rosario Vega Lynn, Esq.
Applicability to State and Local Governments
for Disabled Veterans
Between USERRA and other Laws/Policies
I met Sergeant First Class
(SFC) Phillip Ramirez Jr. in April 2008.
An attorney I knew insisted I meet with SFC Ramirez to discuss concerns
about his job. This attorney said he met
SFC Ramirez before he was called to Iraq and
that SFC Ramirez changed a great deal upon his return and his behavior reminded
him of his brother, a Vietnam War veteran, who was plagued with demons.
During our initial meeting, SFC
Ramirez seemed ashamed and nervous. I
asked him about his job and he replied, “They are trying to get rid of
me.” I asked him why he thought that and
he didn’t have an answer. As an
employment and civil rights attorney, I tailored initial meetings with
potential clients to race, age, religion, national origin, sex, or physical or
mental handicap real or perceived. This
was my first service member case.
I took the case. My client cried with relief. I wrote demand letters to his employer, the
New Mexico Children, Youth and Families Department (CYFD), where SFC Ramirez
worked as a community support officer in McKinley County (one
of the most violent areas in the state) for over 13 years without
incident. I was ignored.
I wrote demand letters to the
Governor, asking for assistance on behalf of a member of the military. I was ignored. I wrote letters to the New Mexico National
Guard asking for advocacy on behalf of one of their soldiers. I was ignored.
My client requested assistance
from the United States Department of Labor, Veterans’ Employment and Training
office but was told the time limit had passed because he returned to work in
filed a charge of discrimination with the New Mexico Human Rights Department for
discrimination based on physical or mental handicap. The department found no probable cause.
this time, the employer was padding SFC Ramirez’s personnel file to include
multiple accusations of insubordination.
CYFD terminated SFC Ramirez on March 25, 2008 – the day after I
requested a reasonable accommodation for his combat-related PTSD to the
In May 2008, I sued CYFD and
everyone who had anything to do with harassing and terminating SFC Ramirez. Since then, the State of New
Mexico has fought us every step of
the way, even paying a private defense firm $423,510.29 to represent CYFD and
all individuals in a three week trial in Gallup that
began Valentine’s Day 2011.
I told the defense attorney
“this isn’t about money.” And the attorney laughed and said, “It’s always about money.” After deliberating three hours, the jury
found CYFD violated SFC Ramirez’s rights under the Uniformed Services
Employment and Reemployment Rights Act (USERRA). For the first time in New
Mexico, a jury hung USERRA around the
The State is still fighting. First, newly-elected Governor Susana Martinez
said she needed time to review the case. (SFC Ramirez escorted Gov. Martinez’s
mother from the vehicle to the church door at the Governor’s inauguration
ceremony.) Then they said the trial judge
committed multiple errors by not ruling on federal law (yes, we are in state
court where federal law doesn’t apply). Now
they say New Mexico has
sufficient protections for its military members and USERRA is not needed.
Ironically, in 2004, the state
legislature enacted a law for service members that, “rights, benefits and
protections of the federal Uniformed Services Employment and Reemployment
Rights Act of 1994 shall apply to a member of the national guard ordered to
federal or state active duty for a period of thirty or more consecutive
days.” What is their argument now? That
incorporation by reference is insufficient to waive government immunity.
On June 27, 2011,
Governor Martinez deployed the National Guard to assist evacuating residents
living near Los Alamos National labs because of the fire danger. SFC Ramirez offered his services but, despite
the urgent need for as many hands as possible, his phone is not ringing.
fact, Gov. Martinez has ordered National Guard troops to action several times since
taking office in January 2011: to assist
the gas company to turn on pilot lights in northern New Mexico, to assist in
fighting the Wallow fire that jumped state lines, and to Ruidoso to assist in
restoring water to residents. SFC
Ramirez was never called to any of these deployments.
Even with these setbacks and
years of fighting, SFC Ramirez is willing to continue the fight for all those
servicemen and women who have put on a uniform and fought for their country and
we will continue to do what is necessary to force the State to comply with USERRA.
Rosario Vega Lynn is a member of the Bar of New Mexico, the United
States Court of Appeals for the 10th
Circuit, and the United States Supreme Court.
She earned her JD degree from the University
of New Mexico in 1998.
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