December 21, 2016
DIANNE L. BUTTS, Plaintiff-Appellant,
PRINCE WILLIAM COUNTY SCHOOL BOARD, Defendant-Appellee, and UNITED STATES OF AMERICA; TAWNYA SOLTIS; KATHRYN FORGAS, Defendants.
Argued: October 27, 2016
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)
Matthew B. Kaplan, KAPLAN LAW FIRM, Arlington, Virginia, for
McGowan, PRINCE WILLIAM COUNTY CIRCUIT COURT, Manassas,
Virginia, for Appellee.
Lynette Johnson, BLANKINGSHIP & KEITH, P.C., Fairfax,
Virginia, for Appellee.
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
THACKER, Circuit Judge.
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
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
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.
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.
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.
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.
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. 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.
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.
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.
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.
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.
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 for at least two years. The Board
denied the grievance as time barred. Finally, on June 15,
2011, the Board terminated Appellant's employment.
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.
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. 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, and compensatory and liquidated damages for lost
wages and benefits.
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.
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.
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 to that, and so
it's -- that is a real failure in the . . . proof.
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
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.
review of a district court's grant of summary judgment is
de novo." Elderberry of Weber City, LLC v.
Living- 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).
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.
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
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.
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.
"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.
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).
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).
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 days or one
year of reemployment, depending on the length of service.
See § 4316(c)(1)-(2).
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 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
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
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
nearest approximation" of that equivalent position in
terms of "seniority, status, and pay" depending on
the veteran's circumstances. 38 U.S.C. §
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.
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
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 §
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
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
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
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.
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 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.
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
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 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).
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.
of the foregoing reasons, the decision of the district court
 Citations to the "J.A."
refer to the Joint Appendix filed by the parties in this
 Appellant dropped her Section 4311
discrimination claims with the filing of her Third Amended
 "[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).
 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).
 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. §