Dianne Butts v. Prince William County School Board

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
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 arose. Repeated efforts to correct

Appellant’s deficient performance were unsuccessful, and the

Board ultimately terminated her on June 15, 2011. The Board

later discovered that Appellant was disabled due to post-

traumatic stress disorder (“PTSD”).

Appellant then sued the Board, claiming she was

improperly reemployed in violation of Section 4313 of USERRA

because her mental state rendered her unqualified, and the

Board’s allegedly hostile work environment triggered or

exacerbated her disability. 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, and

because Appellant has no available remedies, we affirm.

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 I.

Appellant previously served as an active duty officer

in the United States Army. After transitioning to the United

States Army Reserve, Appellant sought employment through the

Department of Defense’s Troops to Teachers Program, which

assists service members to become public school 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 deployed to Kuwait until 2008. During her

deployment, the Board granted Appellant a military leave of

absence. But, rather than continuing to extend her 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. Shortly after her discharge, Appellant was

briefly 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,

4
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 to confusion among students

assigned to her class.” J.A. 66. 1 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. J.A. 67. The

1 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 teaching in 2009, her

performance issues persisted. 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. J.A.

130. 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 Appellant’s performance issues, the Board

implemented an action plan in an attempt to help Appellant

succeed. Pursuant to that action plan, the Board provided

Appellant a mentor, instructional resources, and opportunities

to meet with education specialists. However, Appellant did not

comply with the action plan, and parents started to file

complaints raising concerns about Appellant’s “quality of

instruction and [her] treatment of students assigned to her

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classroom.” J.A. 70. 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 also did not

comply.

On October 10, 2010, Appellant requested long term

sick leave to recover from stress, anxiety, and depression

attributed to her military service. This request for sick leave

was the first time the Board learned of any possible mental

health condition. The Board approved Appellant’s request, and

she remained 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. The Associate

Superintendent informed Appellant of the dismissal

recommendation by mail on May 9, 2011, and provided her

instructions for filing a grievance. 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

7
for at least two years. The Board denied the grievance as time

barred. Finally, on June 15, 2011, the Board terminated

Appellant’s employment.

During her period of sick leave 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.

8
and compensatory and 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 to establish the alleged causal link between

Appellant’s mental health and her employment. Appellant’s

counsel asserted that her case in chief was “fine without a

medical expert.” J.A. 25.

Subsequently, the Board filed a motion for summary

judgment, and Appellant filed a partial motion for summary

judgment. 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. According to

Appellant, the Board’s improvement plans and 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 -- that is a real
failure in the . . . proof.

J.A. 339. 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 when she was discharged in June of 2011, she had

already been disabled since the previous October . . . . So

[the Board’s] firing her in June made no difference. She

couldn’t work anyway.” J.A. 341. 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, any claim under the reemployment

provision was “clearly moot.” 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-

10
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. Appellant further contends that

the resulting stress from the Board’s improper reemployment

“caused [Appellant’s] weakened mental state to deteriorate,

until reaching the point where she could do no work of any

sort.” Appellant’s Br. 9. Her argument on this point has not

been consistent. 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, the Board argues that it has fully

complied with USERRA. In support of this argument, the Board

points out that Appellant was reemployed to an “escalator

11
position” -- that is, the position she would have attained but

for her deployment. See 20 C.F.R. § 1002.191. Here, such

position was the fifth grade teaching position. Moreover,

Appellant received the associated pay and 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 persons

because of their service in the uniformed services.” Hill v.

Michelin N. Am., Inc., 252 F.3d 307, 311 (4th Cir. 2001)

(quoting 38 U.S.C. § 4301(a)(3)). USERRA was “enacted to

protect the rights of veterans and members of the 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 USERRA outline its framework:

4311, 4312, 4313, and 4316.

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 Section 4311 prohibits an employer from discriminating

against an employee who “is a member of . . . a uniformed

service.” § 4311(a). 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 4312 and 4313 protect veterans seeking

reemployment. 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 veterans a right of

reemployment after military service. 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 of employment. See Petty, 538 F.3d at 440

(citations omitted). Section 4316 prevents employers from

firing without cause any returning veterans within either 180

13
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). The parties do

not dispute that Appellant satisfied the criteria, and the

record supports that conclusion. Thus, Section 4313 applies.

Specifically, for veterans whose service period exceeded 90

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

14
 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.” 20

C.F.R. § 1002.191. This is considered the “starting point for

determining the proper reemployment position.” Id. at

§ 1002.192. In sum, the veteran is either employed to the

position he or she would have attained but for his or her

service, or, if unqualified for the escalator 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 “have to consider several factors.” 20 C.F.R.

§ 1002.192. One factor is whether a veteran has a service-

related disability. See id. If a veteran has a service-related

disability and is unqualified 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

15
nearest approximation” of that equivalent position in terms of

“seniority, status, and pay” depending on the veteran’s

circumstances. 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. Per USERRA,

the starting point for determining reemployment 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. An employee “must

be qualified for the reemployment position.” 20 C.F.R.

§ 1002.198. The term “qualified” means “the employee has the

ability to perform the essential task of the position.” Id. at

16
§ 1002.198(a)(1). Here, Appellant was qualified for the

escalator position. Appellant has a Master’s degree in

education, obtained certification from the Virginia Department

of Education to teach grades three through six, had prior

experience and education in teaching fifth grade 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. 20

C.F.R. § 1002.198. “Reasonable efforts” means “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).

17
deficiencies in Appellant’s performance. Those plans provided

Appellant mentors, meetings with specialists, and other similar

resources, but Appellant was uncooperative. Even then, the

Board delayed dismissing Appellant, and instead 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 appeal, however, Appellant contends that these

accommodation efforts actually worsened her condition. But

Appellant offers no support for such argument other than her own

testimony. Indeed, she failed to designate an expert to

establish a causal link between her mental health and her

employment. Absent expert testimony, Appellant’s own testimony

is insufficient to establish a nexus between the alleged work-

related 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

18
be reemployed in “any other 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. See 20 C.F.R. § 1002.226(a).

Here, because Appellant’s disability was unknown to

the Board until after terminating her employment, it has no

bearing on the reemployment decision. Likewise, 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 claim under USERRA,

there are no remedies available to her. 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).

19
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. First, any claim for reinstatement would be

futile. 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. Thus,

any claim for lost wages or benefits is moot. 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).

20
 IV.

For all of the foregoing reasons, the decision of the

district court is

AFFIRMED.

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