Filed: Dec. 21, 2016
Latest Update: Mar. 03, 2020
Summary: 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
Summary: 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 a..
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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
Lynette Johnson, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia,
for Appellee.
2
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.
3
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.
5
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
6
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
9
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.
12
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.
21
