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 
2

Lynette Johnson, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, 

for Appellee. 
3

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 posttraumatic 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.

 
4

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, 
5

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.
6

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 
7

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 
8

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. 
9

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 
10

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-
11

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 
12

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. 
13

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 
14

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 
15

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 servicerelated 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 
16

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 
17

§ 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). 
18

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 workrelated 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 
19

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). 
20

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). 
21

IV.

For all of the foregoing reasons, the decision of the 

district court is

AFFIRMED.