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Lack of knowledge of reemployed teacher’s PTSD barred USERRA escalator claim

By Lorene D. Park, J.D.

Affirming summary judgment against a former elementary school teacher’s claim that a school district violated USERRA by reemploying her in a position for which she was unqualified due to her post-traumatic stress disorder (PTSD), the Fourth Circuit pointed out that she had not claimed, at the time of reemployment, that she was unqualified and the employer did not have notice of her PTSD at the time. Even if she was unqualified, the board made reasonable efforts to assist her to become qualified. And while she claimed the improvement plan and other efforts made her condition worse, she offered no evidence supporting that claim (Butts v. Prince William County School Board, December 21, 2016, Thacker, S.).

After transitioning from active duty to the Army Reserve, the employee sought work through the Department of Defense’s (DOD) “Troops to Teachers Program,” which assists service members to become public school teachers. From 1996 through 2004, Prince William County’s school board employed her as a fifth grade teacher and she received favorable reviews.

Return to active duty. In 2004, the employee returned to active duty and she was deployed to Kuwait in 2008. During her deployment the board of education granted her military leave, but the employee subsequently resigned at the end of the 2006-2007 school year. In 2008, she was honorably discharged and was briefly hospitalized for adjustment disorder with depressed mood, which she attributed to witnessing several suicides while deployed.

Reemployment. Later that year, she contacted the board about reemployment, but she did not go through USERRA because she had resigned. The employee was hired as a substitute teacher and the board planned to permanently hire her the next school year. However, less than a week into her time as a fifth grade substitute, there were problems with her performance, such as taking leave without following policy, undermining superiors, and speaking to students in a “disrespectful and harsh” manner. Because of this, she was not offered a permanent job. However, after she contacted a DOD ombudsman about reemployment under USERRA, she was reinstated with all the salary and benefits she would have received had she not been deployed.

Improvement plans. After she started teaching in 2009, though, her performance issues persisted. She refused other teachers’ suggestions, though her teaching methods were ineffective. Indeed, her students often were unable to complete homework and were “essentially regressing.” She was put on an action plan, assigned a mentor, and given instructional resources. However, she did not comply and parents complained. She also failed to comply with a second, formal improvement plan during the 2010-2011 school year.

Termination and grievance. In October 2010, the employee requested long-term sick leave for stress, anxiety, and depression attributed to her military service. This was the first the board had heard of a mental health condition. It approved her request. Ultimately, she was terminated for poor performance and failure to comply with improvement plans.

Summary judgment. Filing suit, the employee claimed the board violated USERRA Section 4313 by putting her in a position for which she was unqualified due to her PTSD. She also claimed the improvement plans caused her decline. The board asserted that her remedies were limited to those under USERRA, which meant: (1) her reemployment claim was moot because she was paid all back wages and promoted to her proper seniority; and (2) no damages existed because when she was discharged, she couldn’t work anyway. Noting the lack of evidence of any link between the employee’s disability and the board’s conduct, and finding she received all back wages and other reemployment benefits, the court granted summary judgment for the board.

USERRA rights. Affirming, the Fourth Circuit first noted the inconsistency in the employee arguing on the one hand that she was qualified to teach in the 2009-2010 school year and on the other that she was unqualified but the board forced her into a teaching position. It also detailed the USERRA provisions prohibiting discrimination (Section 4311), guaranteeing reemployment to returning veterans who satisfy certain criteria (Sections 4312 and 4313), and preventing employers, for a period of time, from firing returning veterans without cause (Section 4316).

Here, it was undisputed the employee satisfied the criteria in Section 4312 and was entitled to Section 4313 benefits. Thus, she was entitled to the position she would have attained but for her service, or, if unqualified for that “escalator” position despite reasonable efforts, she was entitled to the same position held prior to service. One of the factors considered by employers in determining the appropriate position is whether a veteran has a service-related disability. If so, and if the veteran is unqualified for the escalator position, Section 4313 requires reemployment to a position equivalent in “seniority, status, and pay” for which the employee is qualified.

Employer complied. To the appeals court, the facts demonstrated that the board complied with USERRA by promptly reemploying the employee to an escalator position, with the same salary and benefits to which she would have been entitled but for her deployment. Significantly, she did not claim she was unqualified at the time of reemployment and there was no notice of her PTSD.

Employee can’t show she was unqualified. Furthermore, the employee could not show she was unqualified for the position in which she was employed. She had a Master’s degree in education and certification to teach grades three through six, as well as prior teaching experience and favorable reviews. Even if she was unqualified, the board made reasonable efforts to assist her to become qualified. While she claimed these efforts actually worsened her condition, there was no evidence supporting that argument other than the employee’s own testimony.

Finally, the employee did 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, which was not the case here. For these reasons, summary judgment was appropriate.