The United States Court of Appeals for the Fourth Circuit recently ruled that the Prince William County School Board did not violate the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) when it fired a teacher who had returned from a four-year deployment to Kuwait. Butts v. Prince William County School Board, et. al., No. 15-1989 (4th Cir. Dec. 21, 2016). The Fourth Circuit affirmed a grant of summary judgement to the School Board by Judge Brinkema of the United States District Court for the Eastern District of Virginia.
In Butts, the plaintiff had been employed as a fifth grade teacher in Prince William County from 1996 to 2004 and also served as an Army Reservist. In 2004, Butts was deployed to Kuwait, and the School Board granted her a military leave of absence. When she returned from service, the Board hired her 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. She was also credited with all of her accrued leave, and provided with 46 months of retirement service.
After returning to teaching, Butts was plagued by a number of performance issues, including complaints that students were “confused” and “essentially regressing” after attending her classes. As a result, the Board reassigned her to a fourth grade class for the 2009-2010 school year.
Despite the reassignment and a performance improvement plan which included providing Butts with a mentor, instructional resources, and opportunities to meet with educational specialists, the performance problems continued. Parents filed complaints about Butts’ quality of instruction and the way she treated her students. The Board responded to these complaints by placing her on yet another performance improvement plan.
On October 10, 2010 Butts requested long term sick leave to recover from “stress, anxiety and depression” related to her military service. The Board approved her leave, and she remained on paid sick leave until May 2011.
On May 9, 2011, the School Board terminated Butts based on her “persistent performance issues and failure to comply with the improvement plans.” Butts filed a grievance challenging the termination, alleging for the first time that she suffered from PTSD and would be unable to work for at least two years. The Board denied her grievance and, on June 15, 2011, Butts was formally terminated.
Butts brought suit under USERRA, alleging that her assignment to a fifth grade class placed her in a position for which she was not qualified, and that the resulting stress caused her “mental state to deteriorate until reaching the point where she could not perform work of any sort. Judge Brinkema rejected this claim, granting summary judgment to the School Board. The Fourth Circuit affirmed, finding that the Board had complied with USERRA’s “escalator principal” by placing her in the position she would have been in had she not been deployed to Kuwait, at the same salary and benefits to which she would have been entitled but for her deployment. The Fourth Circuit took note of the fact that, in her complaint, Butts admitted she was qualified to teach fifth grade. Moreover, even if she was not qualified, the Board made “reasonable efforts” to help her become qualified (through the performance improvement plans), as required by USERRA. The Fourth Circuit also rejected Butts’ claim that USERRA required the Board to find an alternate position for her due to her disability, concluding that the Board did not even become aware of her service connected PTSD until nearly two years after she was reemployed.
The Butts decision demonstrates the complexities and nuances of USERRA compliance. The law’s “escalator principal” requires employers to determine where and in what capacity an employee would be employed has they never been deployed, which is no easy task. Moreover, even where -as here – the employer gets it right, disgruntled employees can tie the employer up with years of litigation challenging the decision.