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)