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Butts v. Prince William County School Board

United States Court of Appeals, Fourth Circuit

December 21, 2016

DIANNE L. BUTTS, Plaintiff-Appellant,
v.
PRINCE WILLIAM COUNTY SCHOOL BOARD, Defendant-Appellee, and UNITED STATES OF AMERICA; TAWNYA SOLTIS; KATHRYN FORGAS, Defendants.

          Argued: October 27, 2016

         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:

          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.

          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.

          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.

         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, 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 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 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) ...


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