Dianne L. Butts v. Prince William Co School Board
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-01073-LMB-TCB. [999991721]. [15-1989]
Appeal: 15-1989
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1989
DIANNE L. BUTTS,
Plaintiff - Appellant,
v.
PRINCE WILLIAM COUNTY SCHOOL BOARD,
Defendant – Appellee,
and
UNITED STATES OF AMERICA; TAWNYA SOLTIS; KATHRYN FORGAS,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:14-cv-01073-LMB-TCB)
Argued:
October 27, 2016
Decided:
December 21, 2016
Before GREGORY, Chief Judge, and DUNCAN and THACKER, Circuit
Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Chief Judge Gregory and Judge Duncan joined.
ARGUED: Matthew B. Kaplan, KAPLAN LAW FIRM, Arlington, Virginia,
for Appellant.
Mary McGowan, PRINCE WILLIAM COUNTY CIRCUIT
COURT, Manassas, Virginia, for Appellee.
ON BRIEF: Kristi
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Lynette Johnson, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia,
for Appellee.
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THACKER, Circuit Judge:
Appellant Dianne L. Butts (“Appellant”) is a veteran
whom
the
Prince
William
County
School
Board
(“the
Board”)
employed as a fifth grade teacher from 1996 to 2004.
In 2004,
Appellant, who was an Army Reservist, was deployed to Kuwait.
After
returning
from
deployment
in
2008,
Appellant
sought
reemployment with the Board pursuant to the Uniformed Services
Employment
and
Reemployment
Rights
Act,
38
U.S.C.
§ 4301
(“USERRA”).
The Board reemployed Appellant, but issues with her
performance
quickly
Appellant’s
deficient
arose.
Repeated
performance
were
efforts
to
unsuccessful,
correct
and
the
Board ultimately terminated her on June 15, 2011.
The Board
later
to
discovered
that
Appellant
was
disabled
due
post-
traumatic stress disorder (“PTSD”).
Appellant
then
sued
the
Board,
claiming
she
was
improperly reemployed in violation of Section 4313 of USERRA
because
Board’s
her
mental
allegedly
state
hostile
exacerbated her disability.
rendered
work
her
unqualified,
environment
and
the
triggered
or
The district court granted summary
judgment to the Board.
Because Section 4313 of USERRA cannot serve as a basis
for
claims
involving
acts
occurring
after
reemployment,
because Appellant has no available remedies, we affirm.
3
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I.
Appellant previously served as an active duty officer
in the United States Army.
States
Army
Department
assists
Reserve,
of
Appellant
Defense’s
service
After transitioning to the United
members
sought
Troops
to
to
become
employment
Teachers
public
through
Program,
school
the
which
teachers.
Appellant possesses a Master’s Degree in Education and obtained
certification from the Virginia Department of Education to teach
grades three through six.
The Board employed Appellant as a
fifth grade teacher from 1996 until 2004; during that time, her
teaching reviews were generally favorable.
Appellant returned to active duty in 2004, and was
subsequently
deployment,
absence.
deployed
the
But,
to
Board
Kuwait
granted
rather
than
until
Appellant
continuing
2008.
a
to
During
military
extend
leave
her
her
of
leave,
Appellant informed the Board she intended to resign from her
teaching position at the end of the 2006-2007 school year.
In 2008, Appellant was honorably discharged from her
military service.
briefly
Shortly after her discharge, Appellant was
hospitalized
for
adjustment
disorder
with
depressed
mood, which she attributed to witnessing several suicides during
her deployment.
Later that same year, Appellant contacted the
Board about reemployment.
Because she had previously resigned
and did not, at least initially, seek reemployment under USERRA,
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the Board told Appellant to submit an online application, which
she did.
The Board then hired her as a fifth grade substitute
teacher
at
Fitzgerald
Elementary
School
(“Fitzgerald”),
intending to permanently assign Appellant to Fitzgerald for the
2008-2009 school year.
Appellant taught at Fitzgerald for less than one week
before issues with her performance arose, such as taking leave
without
following
school
policy,
undermining
superiors,
and
speaking “to the students in a disrespectful or harsh manner and
refus[ing] to teach pursuant to [the Board’s] lesson guides or
established
practices,
leading
assigned to her class.”
to
J.A. 66. 1
confusion
among
students
Based on Appellant’s poor
performance and conduct, the Board declined “to move forward
with an offer of employment” at Fitzgerald for the 2008-2009
school year.
Id.
Appellant subsequently contacted an ombudsman for the
Department
of
Defense,
who
reached
out
to
the
Board
and
clarified that Appellant sought reemployment pursuant to USERRA.
The Board then hired Appellant under a one-year contract as a
fifth
grade
teacher
for
the
2008-2009
school
year,
and
reinstated her “with the same salary and benefits to which she
would have been entitled” but for her deployment.
1
J.A. 67.
The
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
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Board also paid Appellant her entire salary for the 2008-2009
school year, credited her for all accrued leave, and provided
her with 46 months of retirement service.
But
after
Appellant
began
performance issues persisted.
teaching
in
2009,
her
The school principal noted that
Appellant refused to consider other “teachers’ suggestions” for
teaching styles and lesson plans, and “conveyed that she knew
what she was doing and would teach the students the way she
chose,” even though her teaching methods were ineffective.
130.
J.A.
In fact, students returned “to their regular classrooms
even more confused,” and as a result, “were unable to complete
their homework” and were “essentially regressing.”
Id.
As a
result, the Board reassigned Appellant to a fourth grade class
at
another
school
for
the
2009-2010
school
year.
But
she
complained about teaching fourth grade rather than fifth grade
and insisted she was qualified to teach fifth grade.
Despite
implemented
succeed.
an
Appellant’s
action
Pursuant
plan
to
that
performance
in
an
action
issues,
the
attempt
to
help
plan,
the
Board
Board
Appellant
provided
Appellant a mentor, instructional resources, and opportunities
to meet with education specialists.
comply
with
the
action
complaints
raising
instruction
and
plan,
concerns
[her]
and
about
treatment
6
of
However, Appellant did not
parents
started
Appellant’s
students
to
“quality
assigned
to
file
of
her
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classroom.”
J.A. 70.
Pg: 7 of 21
The Board informed Appellant that she
needed to improve or face possible discharge.
Expecting that
Appellant could improve, the Board planned to employ her through
the 2010-2011 school year, and provided Appellant a second, more
formal
improvement
plan,
with
which
Appellant
2010,
Appellant
also
did
not
comply.
On
sick
leave
October
to
10,
recover
from
stress,
attributed to her military service.
requested
anxiety,
and
long
term
depression
This request for sick leave
was the first time the Board learned of any possible mental
health condition.
she
remained
The Board approved Appellant’s request, and
on
paid
sick
leave
until
May
2011,
when
she
transitioned to leave under the Family and Medical Leave Act.
Ultimately,
based
on
Appellant’s
persistent
performance issues and failure to comply with the improvement
plans, the Associate Superintendent informed Appellant that she
would be recommended for dismissal to the Board.
Superintendent
recommendation
informed
by
mail
Appellant
on
May
9,
instructions for filing a grievance.
of
2011,
The Associate
the
and
dismissal
provided
her
Appellant had 15 days to
file a grievance, but did not do so until 30 days later, on June
8, 2011.
Appellant attached a note with her untimely grievance,
indicating for the first time that she (1) suffered from PTSD;
(2) was currently incapacitated; and (3) would be unable to work
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for at least two years.
barred.
Finally,
on
Pg: 8 of 21
The Board denied the grievance as time
June
15,
2011,
the
sick
leave
Board
terminated
Appellant’s employment.
During
her
period
of
prior
to
her
termination, Appellant sought benefits from both the Department
of Veterans Affairs and the Social Security Administration.
On
June 3, 2011, the Department of Veterans Affairs determined she
was disabled due to service-related PTSD, effective November 30,
2010.
On November 21, 2012, the Social Security Administration
likewise deemed Appellant disabled and unable to work in any
occupation since October 28, 2010.
Appellant filed a pro se complaint in the Court of
Federal Claims in 2014, alleging violations of the Civil Rights
Act, Americans with Disabilities Act (“ADA”), and USERRA.
The
case was subsequently transferred to the Eastern District of
Virginia.
Appellant later obtained counsel, and narrowed her
case to a single improper reemployment claim under Section 4313
of USERRA. 2
Appellant alleged that her reemployment worsened her
“minor psychiatric symptoms related to her military service,”
and “[t]hat worsening eventually culminated in a diagnosis of
full post-traumatic stress disorder.”
J.A. 54-55.
Appellant
sought an injunction requiring the Board to comply with USERRA,
2
Appellant dropped her Section 4311 discrimination claims
with the filing of her Third Amended Complaint.
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and
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compensatory
and
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liquidated
damages
for
lost
wages
and
benefits.
Following discovery, the parties appeared before the
district court for a final pretrial conference.
At that time,
the district court noted that Appellant had not designated a
medical
expert
Appellant’s
to
mental
establish
health
the
and
alleged
her
causal
link
employment.
between
Appellant’s
counsel asserted that her case in chief was “fine without a
medical expert.”
J.A. 25.
Subsequently,
judgment,
and
judgment.
the
Appellant
Board
filed
a
filed
a
partial
motion
for
summary
motion
for
summary
At the motion hearing, Appellant contended she had
been improperly reemployed because she was unqualified to teach
from 2009 until her termination due to her PTSD.
Appellant,
the
Board’s
improvement
plans
and
According to
the
resulting
stress caused her decline and PTSD.
The district court took particular issue with the lack
of evidence showing any link between Appellant’s disability and
the Board’s conduct.
The court stated:
[T]he problem with a case like this is when
you’re trying to say that . . . [the Board]
caused a medical injury, which as a result
of the medical injury, the salary has
stopped because the person can’t work,
you’ve got to have evidence that, and . . .
the causative factor is the mental health,
and you [Appellant] don’t have a person in
your case who’s going to be able to testify
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to that, and so it’s -failure in the . . . proof.
J.A. 339.
that
is
a
real
The district court ultimately granted the Board’s
motion because it could “not see how any reasonable jury could
find in [Appellant’s] favor.”
Id. at 342.
During the same motion hearing, the Board’s counsel
also pointed out that Appellant’s remedies were limited to those
available under USERRA, which meant: (1) her reemployment claim
was
moot
because
Appellant
was
paid
all
her
back
wages
and
promoted to her proper seniority; and (2) no damages existed
“because
she
had
already been disabled since the previous October . . . .
So
[the
when
Board’s]
she
was
firing
couldn’t work anyway.”
discharged
her
in
in
June
J.A. 341.
June
made
no
of
2011,
difference.
She
As a result, the Board argued
that Appellant “lost [her] legal vehicle . . . for pain and
suffering or mental health issues which allegedly caused the
disability.”
Id.
at
340.
The
district
court
granted
the
Board’s motion for summary judgment, concluding that because the
Board had paid Appellant all back wages and increased her salary
to
the
proper
seniority,
provision was “clearly moot.”
any
claim
under
the
reemployment
Id. at 341.
II.
“Our review of a district court’s grant of summary
judgment is de novo.”
Elderberry of Weber City, LLC v. Living-
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Centers Se., Inc., 794 F.3d 406, 411 (4th Cir. 2015) (emphasis
and citation omitted).
In our review, “we apply the same legal
standards as the district court, and view all facts in the light
most favorable to the nonmoving party.”
Certain Underwriters at
Lloyd’s, London v. Cohen, 785 F.3d 886, 889 (4th Cir. 2015)
(alterations, citation, and internal quotation marks omitted).
III.
A.
Appellant contends the Board violated her rights under
Section 4313 of USERRA because she was reemployed in a position
for which she was unqualified.
the
resulting
“caused
stress
[Appellant’s]
from
Appellant further contends that
the
weakened
Board’s
mental
improper
state
to
reemployment
deteriorate,
until reaching the point where she could do no work of any
sort.”
Appellant’s Br. 9.
been consistent.
Her argument on this point has not
In her complaint, Appellant alleges that “she
was qualified to teach 5th grade during the 2009-2010 school
year” and that placing her “in a 4th grade, not a 5th grade
position” violated USERRA.
J.A. 53 (emphasis supplied).
On
appeal, however, Appellant now claims she was unqualified to
teach but the Board forced her into a teaching position.
For
its
part,
complied with USERRA.
points
out
that
the
Board
argues
that
it
has
fully
In support of this argument, the Board
Appellant
was
11
reemployed
to
an
“escalator
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position” -- that is, the position she would have attained but
for
her
deployment.
position
was
Appellant
the
See
fifth
received
20
C.F.R.
grade
the
§ 1002.191.
teaching
associated
pay
Here,
position.
and
such
Moreover,
benefits
of
that
position.
The Board next contends Appellant cannot use Section
4313 to challenge the events occurring after her reemployment.
The Board also claims it did not receive notice of Appellant’s
disability
until
her
untimely
grievance,
and
her
performance
issues did not serve to notify the Board of her disability.
Finally, the Board contends there are no remedies available to
Appellant under USERRA.
B.
1.
USERRA
“prohibit[s]
discrimination
against
because of their service in the uniformed services.”
Michelin
N.
Am.,
(quoting
38
U.S.C.
protect
the
rights
Inc.,
252
F.3d
§ 4301(a)(3)).
of
veterans
and
307,
311
USERRA
members
(4th
was
of
persons
Hill v.
Cir.
2001)
“enacted
the
to
uniformed
services,” meaning “it must be broadly construed in favor of its
military beneficiaries.”
Francis v. Booz, Allen & Hamilton,
Inc., 452 F.3d 299, 303 (4th Cir. 2006) (quoting Hill, 252 F.3d
at
312-13).
Four
sections
of
4311, 4312, 4313, and 4316.
12
USERRA
outline
its
framework:
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Section 4311 prohibits an employer from discriminating
against
an
service.”
employee
who
§ 4311(a).
“is
a
member
of
.
.
.
a
uniformed
Section 4311 applies after a veteran is
reemployed following deployment.
See Francis, 452 F.3d at 304.
This section is expansive, prohibiting discrimination because of
an employee’s service at the “initial employment, reemployment,
[and] retention in employment” stages of a veteran’s employment,
as
well
as
for
“promotion,
or
any
benefit
of
employment.”
§ 4311(a).
Sections
reemployment.
4312
and
4313
protect
veterans
seeking
See Petty v. Metro. Gov’t of Nashville-Davidson
Cty., 538 F.3d 431, 439-440 (6th Cir. 2008) (citation omitted).
Section
4312
guarantees
returning
reemployment after military service.
veterans
a
right
of
It requires employers to
rehire veterans when they return from service if those veterans
satisfy the criteria in that section.
See § 4312(a)(1)-(3).
If
a veteran satisfies the criteria, then Section 4313 sets forth
the rights under Section 4312 -- namely, the specific position
to
which
veterans
are
entitled
upon
their
return.
See
§ 4313(a)(1)-(4).
Finally, Section 4316 generally applies at the point
of
termination
(citations
of
employment.
omitted).
See
Section
4316
Petty,
538
prevents
F.3d
at
employers
440
from
firing without cause any returning veterans within either 180
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days or one year of reemployment, depending on the length of
service.
See § 4316(c)(1)-(2).
2.
Section
4312
guarantees
reemployment
rights
and
benefits “and other employment benefits” for any employee who
was
absent
from
employment
“by
reason
of
service
in
the
uniformed services” if three criteria are met:
(1) the person . . . has given advance
written or verbal notice of such service to
such person’s employer; (2) the cumulative
length of the absence . . . by reason of
service in the uniformed services does not
exceed five years; and . . . [(3)] the
person reports to, or submits an application
for reemployment to, such employer[.]
38 U.S.C. § 4312(a)(1-3) (emphasis supplied).
not
dispute
that
Appellant
satisfied
the
The parties do
criteria,
and
the
record supports that conclusion.
Thus, Section 4313 applies.
Specifically,
service
for
veterans
whose
period
exceeded
days, that veteran must be promptly reemployed:
(A) in the position of employment in which
the person would have been employed if the
continuous employment of such person with
the employer had not been interrupted by
such
service,
or
a
position
of
like
seniority, status and pay, the duties of
which the person is qualified to perform; or
(B) in the position of employment in which
the person was employed on the date of the
commencement of the service in the uniformed
services, or a position of like seniority,
status and pay, the duties of which the
person is qualified to perform, only if the
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person is not qualified to perform the
duties
of
a
position
referred
to
in
subparagraph (A) after reasonable efforts by
the employer to qualify the person.
38 U.S.C. § 4313(a)(2)(A)-(B) (emphasis supplied).
The former
is commonly referred to as the “escalator position” -- meaning
the
position
a
veteran
“would
have
attained
with
reasonable
certainty if not for the absence due to uniformed service.”
C.F.R. § 1002.191.
determining
In
This is considered the “starting point for
the
§ 1002.192.
position
he
or
service,
or,
if
20
proper
sum,
she
reemployment
the
would
veteran
have
unqualified
position.”
is
either
attained
for
the
but
Id.
at
employed
to
the
for
or
her
escalator
his
position
--
despite reasonable efforts to make him or her qualified -- to
the same position held prior to service.
3.
To determine the appropriate reemployment position, an
employer
may
§ 1002.192.
“have
to
consider
several
factors.”
20
C.F.R.
One factor is whether a veteran has a service-
related disability.
See id.
disability
unqualified
and
is
If a veteran has a service-related
for
the
escalator
position,
Section 4313 requires an employer to reemploy that veteran to
(1) a position with equivalent “seniority, status, and pay” for
which the veteran is qualified, or would be qualified by the
employer’s reasonable efforts; or (2) a position that is “the
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nearest approximation” of that equivalent position in terms of
“seniority,
status,
circumstances.
and
pay”
depending
on
the
veteran’s
38 U.S.C. § 4313(a)(3)(A).
C.
1.
Here, the facts demonstrate the Board complied with
USERRA.
The Board promptly reemployed Appellant to an escalator
position -- a fifth grade teaching position.
More importantly,
and in compliance with USERRA, the Board reinstated Appellant
with the same salary and benefits to which she would have been
entitled but for her deployment.
Indeed, the Board would have violated USERRA had it
not reemployed Appellant to the escalator position.
the
starting
point
for
determining
reemployment
Per USERRA,
must
be
the
escalator position, see 20 C.F.R. § 1002.192, and at the time of
reemployment, Appellant did not claim she was unqualified for
such position.
Further, there was no notice at the time of
reemployment that Appellant suffered from PTSD.
2.
Appellant also cannot demonstrate she was unqualified
for the position in which she was employed.
be
qualified
§ 1002.198.
for
the
reemployment
An employee “must
position.”
20
C.F.R.
The term “qualified” means “the employee has the
ability to perform the essential task of the position.”
16
Id. at
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§ 1002.198(a)(1).
escalator
Here,
position.
Pg: 17 of 21
Appellant
Appellant
was
has
a
qualified
Master’s
for
the
degree
in
education, obtained certification from the Virginia Department
of
Education
experience
to
and
teach
grades
education
in
three
teaching
through
fifth
six,
grade
had
prior
before
her
deployment, and previously had favorable teaching reviews from
1996 to 2004.
Appellant applied for the fifth grade teaching
position for which she now maintains she was unqualified.
And,
critically, she stated in her complaint “she was qualified to
teach 5th grade,” J.A. 53, and “demand[ed] a 5th grade position”
after being transferred to the fourth grade, id. at 69. 3
3.
Moreover, even if Appellant were unqualified for the
escalator position, the Board made reasonable efforts to assist
her
to
become
qualified.
When
reemploying
a
veteran,
an
employer must, if necessary, “make reasonable efforts to help
the employee become qualified” for the escalator position.
C.F.R.
§ 1002.198.
“Reasonable
efforts”
means
20
“actions,
including training provided by an employer, that do not place an
undue hardship on the employer.”
38 U.S.C. § 4303(10).
Here,
the Board implemented two action plans to attempt to resolve the
3
“[A] party is bound by the admissions of his [or her]
pleadings.” Lucas v. Burnley, IV, 879 F.2d 1240, 1242 (4th Cir.
1989) (citations and internal quotation marks omitted).
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deficiencies in Appellant’s performance.
Those plans provided
Appellant mentors, meetings with specialists, and other similar
resources,
Board
but
delayed
Appellant
was
dismissing
uncooperative.
Appellant,
and
Even
then,
instead
the
provided
Appellant “with the opportunity to address the concerns in her
action plan.”
J.A. 70.
Clearly, the Board made reasonable
efforts to qualify Appellant.
On
accommodation
appeal,
however,
efforts
Appellant
actually
worsened
contends
her
that
these
condition.
But
Appellant offers no support for such argument other than her own
testimony.
establish
Indeed,
a
employment.
causal
she
link
failed
to
between
her
designate
an
expert
mental
health
and
to
her
Absent expert testimony, Appellant’s own testimony
is insufficient to establish a nexus between the alleged workrelated stressors and her PTSD, and thus, her contention cannot
survive summary judgment.
4.
Finally, Appellant does not fall under the disability
provision of Section 4313 because the requirement to provide an
alternate position due to her disability only applies if the
employer knows of the disability at the time of reemployment.
See 20 C.F.R. § 1002.192.
Section 4313 permits a person who has
a service-related disability and who remains unqualified for an
escalator position despite an employer’s reasonable efforts to
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be
Doc: 37
reemployed
Filed: 12/21/2016
in
“any
other
Pg: 19 of 21
position
which
is
equivalent
in
seniority, status, and pay,” or the nearest approximation of the
same.
38
U.S.C.
§ 4313(a)(3)(A)-(B).
The
duty
to
make
reasonable efforts to accommodate a service-related disability - like the other provisions of Section 4313 -- only applies to
structuring the appropriate reemployment position at the point
of reemployment.
Here,
the
Board
bearing
See 20 C.F.R. § 1002.226(a).
because
until
on
the
after
Appellant’s
terminating
reemployment
disability
her
was
employment,
decision.
Likewise,
unknown
to
it
no
has
Appellant’s
teaching deficiencies and repeated issues did not come to light
until after she was reemployed.
Moreover, Appellant’s grievance
containing a notice of her incapacity was untimely filed on June
8, 2011 -- almost two years after her reemployment. 4
D.
Even
if
Appellant
had
a
valid
there are no remedies available to her.
claim
under
USERRA,
USERRA provides three
possible remedies: (1) requiring the employer to comply with
4
Appellant’s claim also cannot proceed under Section 4312.
In Francis v. Booz, Allen & Hamilton, Inc., this court held that
Section 4312 “applies to protect a covered individual only as to
the act of rehiring.”
452 F.3d 299, 305 (4th Cir. 2006).
There, we pointed out that Section 4312 “does not prevent the
employer from terminating [an employee] the next day or even
later the same day,” but we acknowledged, “[t]he apparent
harshness of this result is addressed by the fact that §§ 4311
and 4316 operate to protect the employee as soon as she is
reemployed.” Id. at 304 (citation omitted).
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Pg: 20 of 21
USERRA; (2) compensation for lost wages or benefits due to the
employer’s noncompliance with USERRA; or (3) liquidated damages
equal to lost wages or benefits if the employer willfully failed
to comply with USERRA.
See 38 U.S.C. § 4323(d)(A)-(C).
Here, there is no remedy available to Appellant for
four
reasons.
futile.
First,
any
claim
for
reinstatement
would
be
Appellant does not dispute that she has been disabled
since October 28, 2010, is still disabled to this day, and will
likely remain so for the foreseeable future.
Second, the Board
already paid Appellant for past lost wages and benefits.
any claim for lost wages or benefits is moot.
Thus,
Third, Appellant
cannot show that a future lost wages claim could proceed.
As
the district court noted, Appellant has no medical expert or
proof that the Board caused or exacerbated her disability.
See,
e.g., Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 164 n.2 (4th
Cir. 1988) (“[E]xpert opinion is of course the prime -- indeed
usually the only -- way to prove medical causation.”).
And,
fourth, Appellant has not argued, nor presented any facts to
demonstrate, that the Board willfully violated USERRA. 5
5
Appellant also sought attorney’s fees and costs, but
USERRA only permits such an award if the requesting party
prevails. See 38 U.S.C. § 4323(h)(2).
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Pg: 21 of 21
IV.
For all of the foregoing reasons, the decision of the
district court is
AFFIRMED.
21
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