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