___________ No. 95-2941

___________ Vickie Jackson, * * Appellant, * * v. * * Delta Special School District, * No. 2; Ronald Smead, * individually and in his official* capacity as Superintendent of * Delta Special School District * No. 2; Hollis Mankin, * individually and in his official* Appeal from the United States capacity as a member of the * District Court for the Board of Directors of Delta * Eastern District of Arkansas. Special School District No. 2; * Linda Lee, individually and in * her official capacity as a * member of the Board of Directors* of Delta Special School District* No. 2; Jerry Don Wilson, * individually and in his official* capacity as a member of the * Board of Directors of Delta * Special School District No. 2; * Cecil Simpson, individually and * in his official capacity as a * member of the Board of Directors* of Delta Special School District* No. 2; Mary Scales, individually* and in her official capacity as * a member of the Board of * Directors of Delta Special * School District No. 2; Linda * Wargo, individually and in her * official capacity as a member of* the Board of Directors of Delta * Special School District No. 2, * * Appellees. *

### -2- __________ Submitted: February 15, 1996 Filed: June 26, 1996

__________ Before WOLLMAN, HEANEY, and MAGILL, Circuit Judges.

___________ MAGILL, Circuit Judge.

Vickie Jackson, principal of Delta Special School District No. 2 (Delta), brought this action alleging that her t ermination by Delta was in retaliation for her filing of a gender discrimin ation claim with the Equal Employment Opportunity Commission (EEOC). After the jury found in he r favor, the district court granted Delta's renewed motion for judgment as
a matter of law. Jackson appeals both this ruling and the district court' s failure to order her reinstatement as school principal after the jury foun d that Delta violated t he Arkansas Teacher Fair Dismissal Act (ATFDA), Ark. Code Ann . § 6-17-1501 (Michie 1993). We affirm in part and reverse i n part.

I.

Vickie Jackson was hired as the elem entary school principal of Delta for the 1 991-92 school year. At the end of this school year, Delta' s Superintendent of Schools, Mr. Gunn, left the sc hool district, and Jackson applied f or the position. Delta did not interview Jackson for thi s position, and it hired Ronald Smead, who was to report for work on July 1, 1992. At the request of superintendent Gunn, Jackson was promoted t o principal of all grades from kindergarten through high school.

Jackson admitted that she was "upset" at not being interviewed fo r the superintendent's position. In response, she carried on

### -3-

what was described by the district court as a "campaign of vilification an d the worst type of rum ormongering and false witness against Ronald Smead." Order Gran ting Judgment N.O.V. at 6 (June 23, 1995). "This vendetta , consisting of the mos t derogatory charges imaginable," id. , began shortly before Smead arrived and continued throughout the ensuing school year.

As no ted by the district court, "[t]he stories spread about Smea d
were truly outrageous. The most serious was that he was a drug dealer." Id. at 7. Evelyn Bea tty, Jackson's secretary, testified that Jackson, on
more than one occasion, mentioned to Beatty and others that Smead was a dru g dealer: "She told me that she had an inside source at the stat e police de partment and that he had told her that Mr. Smead was unde r investigation for drug trafficking." Tr. at 308. Beverly Morales, Smead' s bookkeeper, confirmed that Jackson spread these rumors, noting that Jackso n "said th at she had a source in the state police and, according to thi s source, that Mr. Smea d was dealing in drugs because cars would come up in his yard and not stay very long and leave. And as to that, he was dealing in drugs." Tr. at 296.

Another of Jackson's favorite rumors was that Smead was a womanizer. Edward Burnett, an employee of the school district, testified that, even before Smead took over as superintendent, Jackson was spreading suc h rumors: "she told me that where he had formerly worked that she had talke d witha teacher or something and she had told her that he was a womanizer and was having an affair." Tr. at 273.
Not content with calling Smead a drug dealer and a womanizer, J ackson also spread rumors that Smead had a drinking problem and that "there was
a DWI at one time." Tr. at 42. Jackson also mentioned to Morales an d Beatty that Smead hadfinancial problems in other districts with which he had been associated.

### -4- Nowhere i n the 191 pages of Jackson's trial testimony does she ever de nyspreading these rumors; at best she quibbles over the exac t terminology she used. As the district court noted,

She said she had never heard the word "womanizer" before, but ". . . [I] guess I could have said something . . ." [Tr. a t 331]. She probably said "trouble with women" [Tr. at 338]

. She admitted making derogatory remarks to Ms. Morales and Ms. Beatty [Tr. at 333]. Sh e admitted telling the women Mr. Smead had "some problems with drugs over at Kingsland" but denie d using the term "drug dealer" [Tr.at 333-34].

Order at 9. Jackson also admitted to telling her co-employees that Smead had a drinking proble m that resulted in a D.W.I. charge. Tr. at 42, 170. Finally, when Jacksonwas asked during cross- examination if she had ever mentioned to her co-employees "[a]ny of the fina ncial trouble we've talked about, drug dealing or whatever terms you used and trouble with women, " Jackson responded, "Yes, sir, I mentioned them. I certainly did, yes." Tr. at 346.

Jackso n's motive for spreading these rumors is clear: she wa s distra ught at not receiving the superintendent position and so sh e "embark ed on a vendetta to make life miserable for Smead." Order at 2

. Morale s testified that Jackson stated that the school district "hadn' t treate d her right" in not interviewing her for the superintendent' s pos ition and that "she [Jackson] could make everyone miserable," Tr. a t 283, and that "the board had hired Mr. Smead knowing his background an d that she [Jackson] could make a call to the newspapers and make it hard fo r everyone." Tr. at 287. On this, Jackson certainly kept her word.

Ja ckson succeeded in creating an intolerable atmosphere of tensio n at D elta. Beatty noted that Jackson's continued statements caused a proble mat the school and affected Beatty's productivity. Beatt y eventually relayed Jackson's comments to Smead because the comments "becam e such a problem" and "caused so much tension" and

### -5-

beca use Jackson's co-employees "couldn't work with it." Tr. at 306

. Morale s confronted Jackson about the negative comments. According t o Morales,
[s]he [Jackson] would ju st come up to me or to anyone and, you kno w, just start talking, just start saying things about Mr

. Smead. . . . And at that time I had, you know, was real busy in my job and I'd had my fi ll of it. I got tired of listening to her. I mean, I didn't ask to hear it. I told her finally I was just tired of her shit.

. . . . But I was mad; I was upset and I just, that's what I said. I said I was tired of every breath that I heard from her bein g negative about Mr. Smead. I said I was in the midd le . . . and I was just sick of hearing about it.

Tr. at 284. When asked if she considered Jackson's conduct to b e professional, Morales responded "no."
On January 4, 1993, Smead relieved Jackson of her disciplinary duties regarding high school students and bus students. Jackson complained to th e school board that this action constituted gender discrimination. Although there was evidence that discipline at the high school had suffered while Jackson was in charge, the school board reinstated Jackson as chie f disciplinarian at its February 1993 meeting. The board denied that Smead had discriminated against Jackson.

On February 26, 1994, Jackson filed an EEOC charge claiming tha t Smead's action constituted gender discrimination. The EEOC chose not to accept the case, instead issuing Jackson a right to sue letter. Jackson chose not to file a lawsuit on this allegation of discrimination.
In early March, Smead decided to rec ommend to the Delta school board that it terminate Jackson. Smead cited thirteen instances of

### During tria l, Jackson admitted that several incidents relied 1 

### upon by Smead in recommending her termination did in fact occur

. Jackson testified that she could not remember some of the othe r incidents, and as to a few, sh e testified that they did not occur. Jackson's filing of the EEOC complaint was not listed as one of the reasons for termination. When asked at trial if Jackson's filing of the complaint was a factor in the termination, Smea d twice stated that it was "not the sole reason"; however, i n response to further questions, Smead stated that the filing of the complaint was not a factor in the termination.

-6- unpro fessional conduct and fifteen instances of inefficiency an d insubordination by Jackson during the previous year as grounds for th e proposed dismissal. 1

Before Jackson was terminated, she was afforded an opportunity t o present her case to the school board. She was n otified on April 27, 1993, that a hearing before the school board had been set for 8 p.m. on April 30 , 1993. However, Jackson's attorney advised her that under the ATFDA only she could order a hea ring, and thus she was under no obligation to attend the meeting set up by the school board. Jackson chose to not attend the meet ing, at which the school board formally discharged her. At thi s meeting, the school board voted to pay Jackson h er salary until the end of the contract year.
On May 3, 1993, Jackson's attorney s ent a letter to the president of the Delta school board requesting an open hearin g, but Jackson received no response to the letter.

On Ju ne 11, 1993, Jackson filed a second charge of discriminatio n withthe EEOC, claiming that her termination was in retaliation for he r filing of the February 1993 discrimination claim with the EEOC. Jackson recei ved a right to sue letter from the EEOC. She brought this suit i n federal district court, alleging that Delta, Smead, and the school board (1) violated her

### Because Jackson would have been terminated even had sh e 2 

### received due process, the cour t awarded nominal damages of $1 only on thi s claim. See Brewer v. Chauvin , 938 F.2d 860, 862-64 (8t h Cir. 1991) (en banc). This damages award has not been appealed. At oral argument, counsel for Jackson bro ke down the $185,000 3 

### award as follows: $100,000 as compensatory damages for th e retaliatory discharge, and $85 ,000 as compensatory damages for the ATFDA violation.
-7- procedural due process rights by terminating her and (2) retaliated agains t her for filing the gender discrimination claim with the EEOC in February of 1993. In a supple mental state law claim brought pursuant to 28 U.S.C. § 1367 (1 994), Jackson alleged that Delta violated the ATFDA by no t gran ting her a hearing after she requested it, thereby requiring he r reinstatement.

The ju ry returned a verdict for Jackson. The jury found that: (1 ) Jackson was denied procedural due process; (2) Jackson would have bee n terminatedeven if she had received due process; (3) Jackson's filing of 2 the February 1993 EEOC complaint was a motivating factor in the defendant' s decision to discharge her; (4) if Jackson had not filed the February 1993 EEOC complaint, she would not have been terminated; and (5) defendant s failed to comply with the ATFDA. The jury awarded Jackson $185,000 i n compensatory damages. 3
The defendants filed a renewed motion for judgment as a matter of law or, in the alternativ e, for a new trial. The court granted judgment as a matter of law on the retaliation claim, holding that the jury's verdict wa s unsupported by the record. The district court noted that

[i]n view of plaintiff's disloyalty to him [Smead], th e slanderous statements ma de to his subordinates - that he was a drug dealer, problem drinker, womanizer and involved i n financial difficulties, the superintendent had no c hoice but to ask the board to fire her. He would have been a fool to d o otherwise.

### -8-

Order at 10. The court also granted, in the alternative, a new trial on this claim.

The district court agreed with the jury that the ATFDA had bee n violated, but, conclu ding that Jackson would have been terminated anyway, it awarde d nominal damages of $1 and refused to order Jackson' s reinstatement.

II.

In revi ewing the district court's grant of judgment as a matter o f law , we apply the same standard as the district court. This standar d requires t hat we (1) resolve direct factual conflicts in favor of th e nonmovant; (2) assume as true all facts supporti ng the nonmovant which the evidence tended to prove; (3) give the nonmovant the benefit of al l reasonable inferences; and (4) deny the motion if the evidence so viewed would allow reasonable jurors to differ as to th e conclusions to be drawn. Dace v. ACF Indus., Inc. , 722 F.2d 374, 375 (8th Cir. 1983).

In consid ering retaliatory discharge claims, we use the three-stage order of proof and presumptions governing discri mination cases in general. Schweiss v . Chrysler Motors Corp. , 987 F.2d 548, 549 (8th Cir. 1993)

. Pla intiff must initially establish a prima facie case of retaliation b y showing participation in a protected activity, subsequent adverse action by the employer, and a causal connection between the two. Kobrin v

. Universityof Minnesota , 34 F.3d 698, 704 (8th Cir. 1994). Once a prima facie showing is made , the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Id.

If the employer meets that burden, the presumption of retaliatio n raised by the prima f acie showing disappears and we evaluate only whether Jackson presented evidence capable of proving that proffered reasons for termination were a pretext for

### -9-

retaliation. See Hutson v. McDonnell Douglas Co rp. , 63 F.3d 771, 777 (8th Cir. 199 5). She can do this directly, "by persuading the court that a discriminatory [or retaliatory] reason more likely motivated the employer, " Tex as Dep't of Comm. Affairs v. Burdine , 450 U.S. 248, 256 (1981), o r in directly, "by showing that the employer's proffered explanation i s unworthy of credence," id. Such indirect evidence, in conjunction with th e prima fac ie case, merely permits, but does not require, the jury t o conclude that Jackson has been the victim of unlawful retaliation. See St
. Mary's Honor Ctr. v. Hicks , 113 S. Ct. 2742, 2749 (1993); Hutson , 63 F.3d at 777.
The parties concede that Jackson mad e a prima facie showing that she was discharged in retaliation for filing the Feb ruary 1993 EEOC complaint. The parties further a gree that Delta offered a legitimate, nonretaliatory
reason for the termination. Thus, we must examine only whether Jackson ha s made t he third-stage showing that the proffered reasons for terminatio n
were a pretext for retaliation. We agree with the district court tha t Jackson has not met this burden.
There was overwhelming evidence adduced at trial that the main reason for Jackson's termination was her insubordination, her inefficiency, and the divisive atmosphere created by her actions at Delta, leading to th e decreased productivity of her co-employees.

First, Jackson herself admitted that several of the incident s outl ined in Smead's termination letter of April 9 did in fact occur

. Second, Jackson admitted to spreading truly outr ageous rumors about Smead, including that he was involved in drugs, was a womanizer, had a drinking problem , had financial problems, and was often absent from the schoo l district. Her co-employees corroborated this testimony.
Jackson's comments were terribly disruptive at Delta. They

### -10-

caus ed extreme tension at the school, and her co-employees, tired o f listening to Jackson' s vitriol, could not perform their duties. We agree wit hthe district court that the overwhelming evidence adduced at tria l demons trates that Jackson was "a terribly disruptive influence at th e school; as she threatened to do, she made life m iserable for the employees with whom she had con tact." Order at 13. "It would have been impossible for Mr. Smead to have carried on his duties whenhis principle subordinate spread the most vicious rumors behind his back to other employees of the district." Id.
Against the great weight of this evidence, Jackson persists i n contending that she w as discharged in retaliation for filing the February 1993 EEOC complaint. She points to three things evidencing that he r discharge was retaliatory: (1) the timing of the termination; (2) a commen t made by Smead, retrac ted moments later, that Jackson's filing of the EEOC complaint was "not the sole reason" for her termination; and (3) Delta's failure to comply with the ATFDA's remediation provision, Ark. Code Ann. § 6-17-1504, which requires that Jackson be made aware, in writing, that problems with her per formance existed that could lead to her termination.

First, we are not troubled by the ti ming--Jackson had been spreading the sl anderous rumors about Smead ever since Smead first becam e superin tendent, and Smead had been detailing the instances o f insubordination and incompetence long before Jackson ever filed the EEOC complaint. Second, the statement by Smead is ambiguous at best, and its importance is far ove rshadowed by the damaging admissions made by Jackson that s he did actually engage in conduct justifying her termination

. Finally, the failure to remediate, which in some situations may be evidenc e that a sch ool district is out to "get" a teacher, is likewise so fa r
ove rshadowed by Jackson's admissions as to hardly offer any evidence o f pretext at all.

### -11- Wh en the events surrounding her filing of the February 1993 EEO C complaint are viewed as a whole, it is clear tha t the school board did not harbor any retaliatory animus when it dismissed Jackson. When Jackson was removed from the post of chief disciplinarian, s he first complained to the school board. What was the school board's respo nse? As cogently analyzed by the district court,

[t] he school board, based upon her complaint to it, restore d her as the chief disciplinarian, overruling Mr. Sme ad. . . . At a meeting of the board in February, in response to th e pla intiff's complaint of gender discrimination, the boar d restored her as chief disciplinarian. Therefore, t he basis for the EEOC charge had disappeared. She denied any intention of filing a lawsuit based upon this charge. "No sir. That wa s just documentation. Something to show that somethi ng had taken place, that's all." One question immediately suggests itself as to the retaliation complaint. Why would the boa rd retaliate by firing her for makinga complaint to the EEOC when they had agreed with her in February when she filed the same complaint with the board? When sh e filed the retaliation complaint four months later in June, the board had restored her as chie f disciplinarian several months before, back in February. . . . The boar d gave her satisfaction on her complaint. "I had n o intentio n of filing a lawsuit." The EEOC found no basis fo r her February 23, 1993 co mplaint. She did not pursue a lawsuit on this c harge which she had every legal right to do. Yet , fou r months after the February charge was filed, she claime d reta liation. This allegation is patently pretextual. Th e jury's affirmative answer to Interrogatory No. 3 is utterl y without any basis in the evidence

. Order at 11-12 (emphasis added) (citations omitted).

We agree that the allegation of retaliatory discharge is "patentl y pretextual." Delta offered overwhelming evidenc e, including Jackson's own admissions that she spread slanderous, unsubstantiated rumors abou t superintendent Smead, that Jackson's discharge w as not retaliatory. Given Jackson's comments, "the superintendent had no c hoice but to ask the board to fire her. He

### Under the ATFDA, a teacher may be discharged for any reason 4 

### tha t is not arbitrary, capricious, or discriminatory. Ark. Cod e Ann
. § 6-17-1503. However, before being discharged, the teache r must receive written notice of the superintendent's terminatio n reco mmendation, including the grounds for the recommendation o f terminat ion. Ark. Code Ann. § 6-17-1507. Within thirty days o f receiving such notice, the teacher may file a written request for a hea ring before the school board. Ark. Code Ann. § 6-17-1509

. The hearing shall take place n ot less than five days nor more than ten days after the written request has been served on the schoo l board. Id

. Failure to strictly comply with these notice an d hearing provisions shall void the termination. Ark. Code An n. § 6- 17-1503.
-12- would have been a fool to do otherwise." Id. at 10. Jackson's claim of retaliatory discharge fails.

III.

Jackson n ext claims that the district court erred in failing t o reinstate her and award her back pay after the jury found that he r dismissal violated the ATFDA. Specifically, she notes that Delta's failur e to comply with the ATFDA voids her dismissal and requires he r reinstatement. 4
The jury found that Delta failed to strictly comply with the ATFDA, and the district court did not disturb this conc lusion upon Delta's motion for a renewed judgment as a matter of law. We agree with this finding

. It is undisputed that Jackson requested a hearing on May 3, 1993, within the thirty-day window provided by the ATFDA. Delta did not offer Jackson a hearing as required. This violates the ATFDA and voids her termination.

Delta responds that it was not required to provide Jackson with a hearing after her request because it had earlier held a meeting on April 30, 1993, to discuss her termination. However, this hearing did no t satisfy the requirements of the ATFDA. Even assuming that school district s
are emp owered under the statute to sua sponte hold hearings regardin g terminations, the statute

### Delta also violated Ark. Code Ann. § 6-17-1504, becaus e 5 

### Jackson was not made aware, in writing, that problems with he r performance existed that could lead to her termination.
-13- mandates that the hearing be held between five days and ten days afte r notice of the meetingis given. In this case, Jackson received notice of the April 30 meeting on April 27, an insufficien t amount of time under the statute. See Lester v. Mount Vernon-Enola Sch. , 917 S.W.2d 540, 542 (Ark. 1996) (termination void because hearing held only four days afte r notice). 5

At is sue then is the relief to which Jackson is entitled. We mus t first decide whether Jackson is entitled to reinstatement, with a
concom itant award of back pay. If Jackson is not entitled t o reinstatement, we mus t decide if she is nevertheless entitled to any back pay due to the violation of the ATFDA.

We agree with the district court that reinstatement is no t ap propriate in this case. The goal of the ATFDA is to ensure that a teacher r eceives a fair hearing before she is terminated. The trial i n this case met that goal--Jackson was granted an adversary hearing where sh e
was abl e to present witnesses on her behalf and cross-examine Delta' s witnesses.

At the conclusion of trial, the judge determined that Delt a demonstrated, as a matter of law, that Jackson's termination was justified

. As noted by the district court,

[t]o reinstate this woman would be unthinkable, andher request for such remedy is hereby denied. She was a terribl y dis ruptive influence at the school; as she threatened to do , she mad e life miserable for the employees with whom she ha d contact.

Order at 13. Because a hearing before the school board can offer Jackson no greater opportunit y to be heard than did the judicial forum, Jackson's termination is valid and we will not order

### -14-

reinstatement.

A more difficult issue is that of damages where reinstatement is not ordered. As noted above, Delta's failure to grant a hearing when requeste d by Jackson voids her termination and requires that she be rehired for the 1993-94 sch ool year at the same salary and on the same terms as th e previous year. See Western Grove Sch. Dist. v. Terry , 885 S.W.2d 300, 302

- 03 (A rk. 1994). Thus, at a minimum, she must receive back pay for thi s year. Id.

However, Arkansas law offers no clea r answer as to whether a teacher terminated in violation of the ATFDA is entitled to back pay for year s subsequent to the yea r immediately succeeding her termination. In Marion City Rural School Dis trict No. 1 v. Rastle , 576 S.W.2d 502 (Ark. 1979), a pre-ATF DAdecision, a school district failed to give a teacher prope r notice of termination before the 1975-76 and 1976-77 school years

. However, the court he ld that the teacher was entitled to only one year of back pay because the notice violation went only to the year immediatel y following termination. Id. at 504.

On the other hand, in Western Grove School District v. Strain , 70 7 S.W.2d 306 (Ark. 1986), a teacher terminated wit hout cause under the ATFDA
was entitled to back pay from termination through reinstatement. Id. at 308. The court noted that, for a school teacher removed from her jo b witho ut cause in violation of the ATFDA, "her contract was in abeyanc e during the pendency of the lawsuit [challenging the dismissal]." Id. The teacher was reinstated at the end of trial, entitling her to b e "compensated for the period she was unemployed due to the actions of the school district." Id. The underlying rationale was that due to he r reinstatement, the te acher should be considered an employee of the school district during the pendency of the lawsuit. As an employee during this period, she was entitled to compensation.

### In St rain , the award of two years' back pay was no t 6 

### predicated solely upon a viola tion of the ATFDA, but rather on the termination being without cause and on a subsequent reinstatement of the teacher. See Strain , 707 S.W.2d at 308; see also Leo la Sch. Dist. v. McMahan , 712 S.W.2d 903, 908 (Ark. 1986) (noting tha t result in Strain predicated on reinstatement of teacher). The dissent states that reinstatement plus three years' back 7 

### pay is the only available remedy for the school board's violation of the ATFDA. We disagree. Under Arkansas law, courts must give statutes a reasonable construction, not an absurd one. See Federal Express Corp. v. Skelton , 578 S.W.2d 1, 9 (Ark. banc 1979) ( quoting Herveyv. Southern Wood Box, Inc. , 483 S.W.2d 65, 69 (1972))

. Alt houghreinstatement may not be denied solely because it woul d cause "hard feelings," see Leo la Sch. Dist. v. McMahan , 712 S.W.2d 903, 908 (Ark. 1986), where reinstatement would be not onl y disr uptive but also destructive of the learning environment, w e would not interpret the statute as requiring that remedy.
-15- We believe that the best interpretat ion of Strainis that it applies only w here reinstatement is ordered. We conclude, then, that where th e 6 termination is for cause, and reinstatement is not ordered, so that th e violation of the ATFDA is procedural and not substantive, Rastle , and not Strain , guides our decision.

In the present case, Jackson was not reinstated at the conclusion of trial because her dismissal was with (good) cause. Thus, unlike in Strain , we do not consider Ja ckson to have been an employee at Delta up until the time of the lawsuit. Under Rastle , the effect o f the procedural violation of the ATFDA in April 1993 goes to the succeedin g school year only. Thus, Jackson's employment contract should be extended for only one year, and sh e is entitled to back pay only for this period. 7

We not e that the result reached in part III of this opinion is a n unfortunate consequen ce of the ATFDA. Although we feel that any award to Jackson i n this case is undeserved, we are compelled by Arkansas law t o award one year's back pay to Jackson.

### Delta movedto strike Jackson's Reply Brief Addendum, on the 8 

### grounds that the material was not in the district court record and that it dealt with issues not previously raised on appeal. We deny this motion, for the material was before the district judge and is relevant to issues raised by Delta in its brief.
-16- IV.
We agree with the district court tha t Jackson's discharge from Delta
was not in retaliation for her filing the EEOC complaint. We further agre e that reinstatement is not appropriate in this case, although we do conclud e that Jackson is entitled to one year of back pay to remedy the violation of the ATFDA. Accordingly, the judgment of the district court is affirmed in part and reversed in part, and the case is re manded for a determination of the value of the s alary and other benefits Jackson would have received for the 1993-94 school year. 8
HEANEY, Circuit Judge, concurring in part and dissenting in part.

Withrespect to whether Jackson was entitled to reinstatement, a s discussed in Part III of the majority opinion, I dissent. Arkansas law on this poin t is quite clear: a termination that does not strictly compl y with the procedural requirements of the Teacher Fair Dismissal Act of 1983 , Ark. Code Ann. §§ 6-1 7-1501-6-17-1510 (Michie 1993) (Fair Dismissal Act), is void. As such, reinstatement and back pay are the appropriate remedies

. I think it worth reminding that this issue is before this court pursuant to our supplemental jurisdiction, 28 U.S.C. § 1367 (1994). Accordingly,
we m ust interpret this question of state law as would Arkansas stat e courts. See United Mine Workers v. Gibbs , 383 U.S. 715, 726 (1966).

Fol lowing Arkansas state court decisions holding that substantia l compliance with notice requirements was sufficient, see, e.g. , Murray v. Altheimer-Sherrill Pub. Sch. , 743 S.W.2d 789

### -17-

(Ar k. 1988), the Arkansas legislature amended the Fair Dismissal Act a s follows:

Anonrenewal, termination, suspension, or other disciplinar y action by a school district shall be void unless the schoo l dis trict strictly complies with all provisions of thi s sub chapter and the school district's applicable personne l policies.

1989 Ark. Acts 625, §1 (amending Ark. Code Ann. § 6-17-1503). As th e majori tyconcedes, the School District did not comply with requirement s imposed by the Fair Dismissal Act. The dismissa l, therefore, is void. If Jackson's termination is void, she has not been terminated and should be reinstated.

The majority rejects reinstatement as the appropriate remedy. I t argues th at the "goal of the [Fair Dismissal Act] is to ensure that a teacher r eceives a fair hearing before she is terminated. The trial i n this case met that goal . . . ." Slip op. at 13 . In effect, the majority holds th at a trial is a sufficient substitute for the statutorily

established dismissal procedures. This assertion is contradicted by the clear statutory language employed by the Fair Dismissal Act.

Moreover, the majority's difficulty with the question of back pa y belies the untenability of its position regarding reinstatement. Afte r reje cting reinstatement, the majority concludes that under Marion Cit y Rural Sch. Dist. No. 1 v. Rastle , 576 S.W.2d 502 (Ark. 1979), the effect of the procedural violation of the Fair Dismissal Act in April 1993 goes onlyto the succeeding school year. Slip op. at 15. The flaw with this assertion is that Rastle , the only authority cit ed by the majority for its holding, did not interpret the Fair Dismissal Ac t, which was enacted after that decision. In su bsequent cases in which school districts have argued that damages should b e limited to the one year following a Fair Dismissal Act violation, the Arkansas Supreme Court has been

### -18-

perfectlyclear on the issue of Rastle 's continued viability: "Reliance
on Ras tle is misplaced, since the statutory law governing teachin g contracts had been changed by the legislature . . . ." Western Grove Sch. Dist. v. Strain , 707 S.W.2d 306, 308 (Ark. 1986). The majority, however, ignores this instruction and the fact that Rastle did not interpret th e relev ant statute. Instead, it argues that the violation in this case , which con sists of a failure to comply with the Fair Dismissal Act' s procedural requirements, is more analogous to Rastle than to Strainbecaus e Strain involved a termination that violated the Act's "with cause " requirement. This di stinction simply does not comport with the statutory language, which flatly states that a terminationshall be void "unless the sch ool district complies with all provisions of this subchapter." Ark

. Code Ann. § 6-17-1503 (emphasis added). Even if the statutory languag e were ambiguous, the d ecisions of Arkansas courts interpreting it are not. The Arkansas Supreme Court has held that reinstatement and back pay ar e appropriate remedies for notice violations of th e Fair Dismissal Act. See Western Grove Sch. Dist. v. Terry , 885 S.W.2d 300, 300 (Ark. 1994). We ar e bound to do so as well.
The major ity suggests that a reasonable construction of the statute would not require rei nstatement where its impact would be "destructive of the lea rning environment." Slip op. at 15 n.7. I share the majority' s
concern for the learning environment, but the potential disruptio n represented by reinstating the plaintiff in this case is no different than any o ther Fair Dismissal Act case, which by definition involves a disciplinaryaction. The Arkansas Supreme Court has explicitly rejected this argument as a basis upon which reinstatement can be denied:

[T]he a ppellant maintains that a court should not gran t rei nstatement unless the return of the given teacher to a school's environment will not cause unnecessary disruptio n bec ause of ensuing feelings. The appellant has cited n o authority for this proposition.

### -19- Any time a school board is forced to reinstate a te acher it has dismissed, hard feelings may result. To refuse reinstatement on that basis would allo w the board to succeed in its [illegal action].

Leola Sch. Dist. v. McMahan , 712 S.W.2d 903, 908 (Ark. 1986). Th e majori ty's attempt to distinguish this same case from the potentia l disruption here is si mply not supported. Like the school board in Leola , the majority can cite no authority for its "reasonable interpretation."
One wonders whether the majority's i nterpretation of Arkansas law is not driven by its conclusion that "any award to Jackson in this case is undeserved . . . ." Slip op. at 15. It must be recognized, however, that the school district's own conduct has raised the stakes of this suit : rather than acknowledging its failure to comply with a simple procedure an d then correcting that error, it chose to pursue acourse of litigation. As a result, the period of back pay at issue is three years, instead of just
one. Although I cannot defend Jackson's conduct, the Arkansas Genera l Assemb lyhas gone to considerable efforts to balance the competin g interests of school district hiring flexibility and employee protection. Few pr otections have been afforded school district employees, but thos e that have been provid ed are to be strictly respected. However unjust the result of that balance may seem in this instance, we must recognize that there a re larger issues at stake than the present case. I am confiden t that wer e this court to award reinstatement, in the future, schoo l districts would go to greater lengths to comply with state law. Clearly, this was the intent of the legislature. The decision of the majority toda y not only ignores unambiguous statutory language and judicia l interp retation, its strained effort to navigate away from the clearly

marked channels of state law frustrates the very purpose of the Arkansas legislature's 1989 amendment.

### -20- A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.