Pegg v. Bd. of Visitors of VMI: Court Finds Offer of Reemployment Was Prompt

Colonel Todd Allan Pegg served as the Deputy Commandant for Operations, Plans, and Training at the Virginia Military Institute (VMI) and as a Colonel in the U.S. Army Reserve. In June 2021, Pegg received orders for a one-year deployment to Iraq beginning in July. He informed VMI that he would be placed on unpaid military leave during that period. Before his deployment, Pegg expressed concerns to VMI leadership about the advertisement for his temporary replacement. He believed the posting made it appear as though VMI sought a permanent replacement rather than a temporary hire. His new supervisor, Commandant of Cadets Adrian Bogart, assured him that his position would be held for his return but allegedly made comments suggesting hostility toward Pegg’s deployment.

Shortly before leaving, Pegg submitted a written complaint to VMI’s Office of Inspector General (IG), describing Bogart’s alleged threats and intimidation. He reported that Bogart claimed to have influential military contacts and warned that Pegg’s deployment could harm his career. Pegg stated that he was concerned for his job security but did not request a formal investigation.

Return from Deployment

Pegg completed his deployment in June 2022 and notified VMI that he would be available to return to work in mid-to-late July. On July 15, VMI’s Chief of Staff John Young emailed Pegg, offering reinstatement to his prior position effective July 24. Pegg declined the offer, responding that he first wanted action on the concerns he had raised before his deployment. VMI reiterated its willingness to reinstate him and encouraged him to meet with the IG to discuss his concerns. Pegg refused to return to work and later claimed that the offer was not prompt and was invalid due to the circumstances surrounding his supervisor’s conduct.

VMI followed up several times, requesting Pegg’s response and reminding him of the 90-day statutory window for requesting reemployment under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Pegg did not submit the required reemployment application. In December 2022, VMI notified him that it would close out his employment due to nonresponse.

Circuit Court Proceedings

In January 2023, Pegg filed suit in the Circuit Court of Rockbridge County alleging discrimination and retaliation in violation of USERRA. He asserted that VMI failed to promptly and properly reemploy him following his deployment and that Bogart’s pre-deployment conduct demonstrated anti-military animus. VMI filed a demurrer and a plea in bar, which the court granted with leave for Pegg to amend. In his amended complaint, Pegg alleged that VMI discriminated against him by not rehiring him promptly and retaliated against him for his military service and prior complaint to the IG.

VMI moved for summary judgment, arguing that it had complied with USERRA by offering Pegg his previous position within his requested timeframe and that he refused the offer. The trial court granted summary judgment in VMI’s favor, finding no genuine dispute of material fact. The court concluded that Pegg’s refusal to accept the offer ended VMI’s obligations under USERRA.

Appeal to the Virginia Court of Appeals

Pegg appealed, arguing that whether the offer of reemployment was prompt and valid presented questions of fact for a jury. He also contended that VMI’s advertising for his position and its management of his replacement undermined his rights under USERRA.

The Virginia Court of Appeals reviewed the case under the standard for summary judgment, viewing evidence in the light most favorable to Pegg. The court found that VMI’s offer was made within the timeframe Pegg himself requested and that the offered position was identical in pay, rank, and status to his pre-deployment position. Under 20 C.F.R. § 1002.181, reemployment must occur as soon as practicable under the circumstances, generally within two weeks of an employee’s request. Because VMI offered Pegg reinstatement nine days after his stated availability and scheduled his return for the exact period he requested, the court found the offer prompt and compliant with USERRA.

The court also rejected Pegg’s arguments about the validity of the offer. It held that VMI’s internal handling of its replacement advertisement and personnel assignments did not affect Pegg’s statutory right to reemployment. Since Pegg declined the unconditional offer, any alleged harm was speculative and not the result of discrimination or retaliation. The court concluded that VMI’s offer fulfilled its legal obligations under USERRA.

Court’s Ruling

The Virginia Court of Appeals affirmed the trial court’s summary judgment for VMI. It held that VMI made a prompt and valid offer of reemployment consistent with USERRA’s requirements. Because Pegg refused the offer and suffered no adverse employment action, his claims for discrimination and retaliation failed.

Assistance with USERRA Matters

If you have faced difficulties with reemployment rights or discrimination following military service, Whitcomb, Selinsky PC assists with USERRA cases. Contact our team to learn how we can support your claim.