___________

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 termination by Delta was in

retaliation for her filing of a gender discrimination claim with the Equal

Employment Opportunity Commission (EEOC). After the jury found in her

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 found

that Delta violated the Arkansas Teacher Fair Dismissal Act (ATFDA), Ark.

Code Ann. § 6-17-1501 (Michie 1993). We affirm in part and reverse in

part.

I.

Vickie Jackson was hired as the elementary school principal of Delta

for the 1991-92 school year. At the end of this school year, Delta's

Superintendent of Schools, Mr. Gunn, left the school district, and Jackson

applied for the position. Delta did not interview Jackson for this

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 to

principal of all grades from kindergarten through high school.

Jackson admitted that she was "upset" at not being interviewed for

the superintendent's position. In response, she carried on
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what was described by the district court as a "campaign of vilification and

the worst type of rumormongering and false witness against Ronald Smead."

Order Granting Judgment N.O.V. at 6 (June 23, 1995). "This vendetta,

consisting of the most derogatory charges imaginable," id., began shortly

before Smead arrived and continued throughout the ensuing school year. 

As noted by the district court, "[t]he stories spread about Smead

were truly outrageous. The most serious was that he was a drug dealer."

Id. at 7. Evelyn Beatty, Jackson's secretary, testified that Jackson, on

more than one occasion, mentioned to Beatty and others that Smead was a

drug dealer: "She told me that she had an inside source at the state

police department and that he had told her that Mr. Smead was under

investigation for drug trafficking." Tr. at 308. Beverly Morales, Smead's

bookkeeper, confirmed that Jackson spread these rumors, noting that Jackson

"said that she had a source in the state police and, according to this

source, that Mr. Smead 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 such

rumors: "she told me that where he had formerly worked that she had talked

with a 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, Jackson

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 and

Beatty that Smead had financial problems in other districts with which he

had been associated.
-4-

Nowhere in the 191 pages of Jackson's trial testimony does she ever

deny spreading these rumors; at best she quibbles over the exact

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. at

331]. She probably said "trouble with women" [Tr. at 338].

She admitted making derogatory remarks to Ms. Morales and Ms.

Beatty [Tr. at 333]. She admitted telling the women Mr. Smead

had "some problems with drugs over at Kingsland" but denied

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 problem that resulted in a D.W.I. charge. Tr. at 42, 170.

Finally, when Jackson was asked during cross- examination if she had ever

mentioned to her co-employees "[a]ny of the financial 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.

Jackson's motive for spreading these rumors is clear: she was

distraught at not receiving the superintendent position and so she

"embarked on a vendetta to make life miserable for Smead." Order at 2.

Morales testified that Jackson stated that the school district "hadn't

treated her right" in not interviewing her for the superintendent's

position and that "she [Jackson] could make everyone miserable," Tr. at

283, and that "the board had hired Mr. Smead knowing his background and

that she [Jackson] could make a call to the newspapers and make it hard for

everyone." Tr. at 287. On this, Jackson certainly kept her word.

Jackson succeeded in creating an intolerable atmosphere of tension

at Delta. Beatty noted that Jackson's continued statements caused a

problem at the school and affected Beatty's productivity. Beatty

eventually relayed Jackson's comments to Smead because the comments "became

such a problem" and "caused so much tension" and
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because Jackson's co-employees "couldn't work with it." Tr. at 306.

Morales confronted Jackson about the negative comments. According to

Morales, 

[s]he [Jackson] would just come up to me or to anyone and, you

know, 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 fill 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 being

negative about Mr. Smead. I said I was in the middle . . . and

I was just sick of hearing about it.

Tr. at 284. When asked if she considered Jackson's conduct to be

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 the

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 chief

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 that

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 recommend to the Delta school board

that it terminate Jackson. Smead cited thirteen instances of
 During trial, 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 other

incidents, and as to a few, she 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, Smead

twice stated that it was "not the sole reason"; however, in

response to further questions, Smead stated that the filing of the

complaint was not a factor in the termination.

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unprofessional conduct and fifteen instances of inefficiency and

insubordination by Jackson during the previous year as grounds for the

proposed dismissal. 

1

Before Jackson was terminated, she was afforded an opportunity to

present her case to the school board. She was notified 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 hearing, and thus she was under no obligation to attend

the meeting set up by the school board. Jackson chose to not attend the

meeting, at which the school board formally discharged her. At this

meeting, the school board voted to pay Jackson her salary until the end of

the contract year.

On May 3, 1993, Jackson's attorney sent a letter to the president of

the Delta school board requesting an open hearing, but Jackson received no

response to the letter.

On June 11, 1993, Jackson filed a second charge of discrimination

with the EEOC, claiming that her termination was in retaliation for her

filing of the February 1993 discrimination claim with the EEOC. Jackson

received a right to sue letter from the EEOC. She brought this suit in

federal district court, alleging that Delta, Smead, and the school board

(1) violated her
 Because Jackson would have been terminated even had she

2

received due process, the court awarded nominal damages of $1 only

on this claim. See Brewer v. Chauvin, 938 F.2d 860, 862-64 (8th

Cir. 1991) (en banc). This damages award has not been appealed.

 At oral argument, counsel for Jackson broke down the $185,000 3

award as follows: $100,000 as compensatory damages for the

retaliatory discharge, and $85,000 as compensatory damages for the

ATFDA violation.

-7-

procedural due process rights by terminating her and (2) retaliated against

her for filing the gender discrimination claim with the EEOC in February

of 1993. In a supplemental state law claim brought pursuant to 28 U.S.C.

§ 1367 (1994), Jackson alleged that Delta violated the ATFDA by not

granting her a hearing after she requested it, thereby requiring her

reinstatement.

The jury returned a verdict for Jackson. The jury found that: (1)

Jackson was denied procedural due process; (2) Jackson would have been

terminated even 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) defendants

failed to comply with the ATFDA. The jury awarded Jackson $185,000 in

compensatory damages.3

The defendants filed a renewed motion for judgment as a matter of law

or, in the alternative, for a new trial. The court granted judgment as a

matter of law on the retaliation claim, holding that the jury's verdict was

unsupported by the record. The district court noted that

[i]n view of plaintiff's disloyalty to him [Smead], the

slanderous statements made to his subordinates - that he was a

drug dealer, problem drinker, womanizer and involved in

financial difficulties, the superintendent had no choice but to

ask the board to fire her. He would have been a fool to do

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 been

violated, but, concluding that Jackson would have been terminated anyway,

it awarded nominal damages of $1 and refused to order Jackson's

reinstatement.

II.

In reviewing the district court's grant of judgment as a matter of

law, we apply the same standard as the district court. This standard

requires that we (1) resolve direct factual conflicts in favor of the

nonmovant; (2) assume as true all facts supporting the nonmovant which the

evidence tended to prove; (3) give the nonmovant the benefit of all

reasonable inferences; and (4) deny the motion if the evidence so viewed

would allow reasonable jurors to differ as to the conclusions to be drawn.

Dace v. ACF Indus., Inc., 722 F.2d 374, 375 (8th Cir. 1983).

In considering retaliatory discharge claims, we use the three-stage

order of proof and presumptions governing discrimination cases in general.

Schweiss v. Chrysler Motors Corp., 987 F.2d 548, 549 (8th Cir. 1993).

Plaintiff must initially establish a prima facie case of retaliation by

showing participation in a protected activity, subsequent adverse action

by the employer, and a causal connection between the two. Kobrin v.

University of 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 retaliation

raised by the prima facie showing disappears and we evaluate only whether

Jackson presented evidence capable of proving that proffered reasons for

termination were a pretext for
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retaliation. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 777 (8th

Cir. 1995). She can do this directly, "by persuading the court that a

discriminatory [or retaliatory] reason more likely motivated the employer,"

Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981), or

indirectly, "by showing that the employer's proffered explanation is

unworthy of credence," id. Such indirect evidence, in conjunction with the

prima facie case, merely permits, but does not require, the jury to

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 made a prima facie showing that she

was discharged in retaliation for filing the February 1993 EEOC complaint.

The parties further agree that Delta offered a legitimate, nonretaliatory

reason for the termination. Thus, we must examine only whether Jackson has

made the third-stage showing that the proffered reasons for termination

were a pretext for retaliation. We agree with the district court that

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 the

decreased productivity of her co-employees. 

First, Jackson herself admitted that several of the incidents

outlined in Smead's termination letter of April 9 did in fact occur.

Second, Jackson admitted to spreading truly outrageous 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 school

district. Her co-employees corroborated this testimony.

Jackson's comments were terribly disruptive at Delta. They
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caused extreme tension at the school, and her co-employees, tired of

listening to Jackson's vitriol, could not perform their duties. We agree

with the district court that the overwhelming evidence adduced at trial

demonstrates that Jackson was "a terribly disruptive influence at the

school; as she threatened to do, she made life miserable for the employees

with whom she had contact." Order at 13. "It would have been impossible

for Mr. Smead to have carried on his duties when his 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 in

contending that she was discharged in retaliation for filing the February

1993 EEOC complaint. She points to three things evidencing that her

discharge was retaliatory: (1) the timing of the termination; (2) a comment

made by Smead, retracted 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 performance existed that could lead to her termination.

First, we are not troubled by the timing--Jackson had been spreading

the slanderous rumors about Smead ever since Smead first became

superintendent, and Smead had been detailing the instances of

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 overshadowed by the damaging admissions made by Jackson

that she did actually engage in conduct justifying her termination.

Finally, the failure to remediate, which in some situations may be evidence

that a school district is out to "get" a teacher, is likewise so far

overshadowed by Jackson's admissions as to hardly offer any evidence of

pretext at all.
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When the events surrounding her filing of the February 1993 EEOC

complaint are viewed as a whole, it is clear that the school board did not

harbor any retaliatory animus when it dismissed Jackson. When Jackson was

removed from the post of chief disciplinarian, she first complained to the

school board. What was the school board's response? As cogently analyzed

by the district court,

[t]he school board, based upon her complaint to it, restored

her as the chief disciplinarian, overruling Mr. Smead. . . . At

a meeting of the board in February, in response to the

plaintiff's complaint of gender discrimination, the board

restored her as chief disciplinarian. Therefore, the basis for

the EEOC charge had disappeared. She denied any intention of

filing a lawsuit based upon this charge. "No sir. That was

just documentation. Something to show that something had taken

place, that's all." One question immediately suggests itself

as to the retaliation complaint. Why would the board retaliate

by firing her for making a complaint to the EEOC when they had

agreed with her in February when she filed the same complaint

with the board? When she filed the retaliation complaint four

months later in June, the board had restored her as chief

disciplinarian several months before, back in February. . . .

The board gave her satisfaction on her complaint. "I had no

intention of filing a lawsuit." The EEOC found no basis for

her February 23, 1993 complaint. She did not pursue a lawsuit

on this charge which she had every legal right to do. Yet,

four months after the February charge was filed, she claimed

retaliation. This allegation is patently pretextual. The

jury's affirmative answer to Interrogatory No. 3 is utterly

without any basis in the evidence.

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

We agree that the allegation of retaliatory discharge is "patently

pretextual." Delta offered overwhelming evidence, including Jackson's own

admissions that she spread slanderous, unsubstantiated rumors about

superintendent Smead, that Jackson's discharge was not retaliatory. Given

Jackson's comments, "the superintendent had no choice but to ask the board

to fire her. He
 Under the ATFDA, a teacher may be discharged for any reason 4

that is not arbitrary, capricious, or discriminatory. Ark. Code

Ann. § 6-17-1503. However, before being discharged, the teacher

must receive written notice of the superintendent's termination

recommendation, including the grounds for the recommendation of

termination. Ark. Code Ann. § 6-17-1507. Within thirty days of

receiving such notice, the teacher may file a written request for

a hearing before the school board. Ark. Code Ann. § 6-17-1509.

The hearing shall take place not less than five days nor more than

ten days after the written request has been served on the school

board. Id. Failure to strictly comply with these notice and

hearing provisions shall void the termination. Ark. Code Ann. § 6-

17-1503.

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would have been a fool to do otherwise." Id. at 10. Jackson's claim of

retaliatory discharge fails.

III.

Jackson next claims that the district court erred in failing to

reinstate her and award her back pay after the jury found that her

dismissal violated the ATFDA. Specifically, she notes that Delta's failure

to comply with the ATFDA voids her dismissal and requires her

reinstatement.4

The jury found that Delta failed to strictly comply with the ATFDA,

and the district court did not disturb this conclusion 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 not

satisfy the requirements of the ATFDA. Even assuming that school districts

are empowered under the statute to sua sponte hold hearings regarding

terminations, the statute
 Delta also violated Ark. Code Ann. § 6-17-1504, because

5

Jackson was not made aware, in writing, that problems with her

performance existed that could lead to her termination.

-13-

mandates that the hearing be held between five days and ten days after

notice of the meeting is given. In this case, Jackson received notice of

the April 30 meeting on April 27, an insufficient 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 after notice).5

At issue then is the relief to which Jackson is entitled. We must

first decide whether Jackson is entitled to reinstatement, with a

concomitant award of back pay. If Jackson is not entitled to

reinstatement, we must 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 not

appropriate in this case. The goal of the ATFDA is to ensure that a

teacher receives a fair hearing before she is terminated. The trial in

this case met that goal--Jackson was granted an adversary hearing where she

was able to present witnesses on her behalf and cross-examine Delta's

witnesses. 

At the conclusion of trial, the judge determined that Delta

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, and her request

for such remedy is hereby denied. She was a terribly

disruptive influence at the school; as she threatened to do,

she made life miserable for the employees with whom she had

contact.

Order at 13. Because a hearing before the school board can offer Jackson

no greater opportunity to be heard than did the judicial forum, Jackson's

termination is valid and we will not order
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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 requested

by Jackson voids her termination and requires that she be rehired for the

1993-94 school year at the same salary and on the same terms as the

previous year. See Western Grove Sch. Dist. v. Terry, 885 S.W.2d 300, 302-

03 (Ark. 1994). Thus, at a minimum, she must receive back pay for this

year. Id.

However, Arkansas law offers no clear answer as to whether a teacher

terminated in violation of the ATFDA is entitled to back pay for years

subsequent to the year immediately succeeding her termination. In Marion

City Rural School District No. 1 v. Rastle, 576 S.W.2d 502 (Ark. 1979), a

pre-ATFDA decision, a school district failed to give a teacher proper

notice of termination before the 1975-76 and 1976-77 school years.

However, the court held that the teacher was entitled to only one year of

back pay because the notice violation went only to the year immediately

following termination. Id. at 504.

On the other hand, in Western Grove School District v. Strain, 707

S.W.2d 306 (Ark. 1986), a teacher terminated without 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 job

without cause in violation of the ATFDA, "her contract was in abeyance

during the pendency of the lawsuit [challenging the dismissal]." Id. The

teacher was reinstated at the end of trial, entitling her to be

"compensated for the period she was unemployed due to the actions of the

school district." Id. The underlying rationale was that due to her

reinstatement, the teacher 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 Strain, the award of two years' back pay was not

6

predicated solely upon a violation 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 Leola Sch.

Dist. v. McMahan, 712 S.W.2d 903, 908 (Ark. 1986) (noting that

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

Hervey v. Southern Wood Box, Inc., 483 S.W.2d 65, 69 (1972)).

Although reinstatement may not be denied solely because it would

cause "hard feelings," see Leola Sch. Dist. v. McMahan, 712 S.W.2d

903, 908 (Ark. 1986), where reinstatement would be not only

disruptive but also destructive of the learning environment, we

would not interpret the statute as requiring that remedy.

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We believe that the best interpretation of Strain is that it applies

only where reinstatement is ordered. We conclude, then, that where the

6

termination is for cause, and reinstatement is not ordered, so that the

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 Jackson to have been an employee at Delta up until the

time of the lawsuit. Under Rastle, the effect of the procedural violation

of the ATFDA in April 1993 goes to the succeeding school year only. Thus,

Jackson's employment contract should be extended for only one year, and she

is entitled to back pay only for this period.7

We note that the result reached in part III of this opinion is an

unfortunate consequence of the ATFDA. Although we feel that any award to

Jackson in this case is undeserved, we are compelled by Arkansas law to

award one year's back pay to Jackson.
 Delta moved to 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.

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IV.

We agree with the district court that Jackson's discharge from Delta

was not in retaliation for her filing the EEOC complaint. We further agree

that reinstatement is not appropriate in this case, although we do conclude

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 remanded for a determination

of the value of the salary and other benefits Jackson would have received

for the 1993-94 school year.8

HEANEY, Circuit Judge, concurring in part and dissenting in part.

With respect to whether Jackson was entitled to reinstatement, as

discussed in Part III of the majority opinion, I dissent. Arkansas law on

this point is quite clear: a termination that does not strictly comply

with the procedural requirements of the Teacher Fair Dismissal Act of 1983,

Ark. Code Ann. §§ 6-17-1501-6-17-1510 (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 must interpret this question of state law as would Arkansas state

courts. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).

Following Arkansas state court decisions holding that substantial

compliance with notice requirements was sufficient, see, e.g., Murray v.

Altheimer-Sherrill Pub. Sch., 743 S.W.2d 789
-17-

(Ark. 1988), the Arkansas legislature amended the Fair Dismissal Act as

follows:

A nonrenewal, termination, suspension, or other disciplinary

action by a school district shall be void unless the school

district strictly complies with all provisions of this

subchapter and the school district's applicable personnel

policies.

1989 Ark. Acts 625, §1 (amending Ark. Code Ann. § 6-17-1503). As the

majority concedes, the School District did not comply with requirements

imposed by the Fair Dismissal Act. The dismissal, 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. It

argues that the "goal of the [Fair Dismissal Act] is to ensure that a

teacher receives a fair hearing before she is terminated. The trial in

this case met that goal . . . ." Slip op. at 13. In effect, the majority

holds that a trial is a sufficient substitute for the statutorilyestablished 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 pay

belies the untenability of its position regarding reinstatement. After

rejecting reinstatement, the majority concludes that under Marion City

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

only to the succeeding school year. Slip op. at 15. The flaw with this

assertion is that Rastle, the only authority cited by the majority for its

holding, did not interpret the Fair Dismissal Act, which was enacted after

that decision. In subsequent cases in which school districts have argued

that damages should be limited to the one year following a Fair Dismissal

Act violation, the Arkansas Supreme Court has been
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perfectly clear on the issue of Rastle's continued viability: "Reliance

on Rastle is misplaced, since the statutory law governing teaching

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 the

relevant statute. Instead, it argues that the violation in this case,

which consists of a failure to comply with the Fair Dismissal Act's

procedural requirements, is more analogous to Rastle than to Strain because

Strain involved a termination that violated the Act's "with cause"

requirement. This distinction simply does not comport with the statutory

language, which flatly states that a termination shall be void "unless the

school district complies with all provisions of this subchapter." Ark.

Code Ann. § 6-17-1503 (emphasis added). Even if the statutory language

were ambiguous, the decisions of Arkansas courts interpreting it are not.

The Arkansas Supreme Court has held that reinstatement and back pay are

appropriate remedies for notice violations of the Fair Dismissal Act. See

Western Grove Sch. Dist. v. Terry, 885 S.W.2d 300, 300 (Ark. 1994). We are

bound to do so as well.

The majority suggests that a reasonable construction of the statute

would not require reinstatement where its impact would be "destructive of

the learning environment." Slip op. at 15 n.7. I share the majority's

concern for the learning environment, but the potential disruption

represented by reinstating the plaintiff in this case is no different than

any other Fair Dismissal Act case, which by definition involves a

disciplinary action. The Arkansas Supreme Court has explicitly rejected

this argument as a basis upon which reinstatement can be denied:

[T]he appellant maintains that a court should not grant

reinstatement unless the return of the given teacher to a

school's environment will not cause unnecessary disruption

because of ensuing feelings. The appellant has cited no

authority for this proposition. 
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Any time a school board is forced to reinstate a teacher it has

dismissed, hard feelings may result. To refuse reinstatement

on that basis would allow the board to succeed in its [illegal

action].

Leola Sch. Dist. v. McMahan, 712 S.W.2d 903, 908 (Ark. 1986). The

majority's attempt to distinguish this same case from the potential

disruption here is simply not supported. Like the school board in Leola,

the majority can cite no authority for its "reasonable interpretation." 

One wonders whether the majority's interpretation 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 and

then correcting that error, it chose to pursue a course 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 General

Assembly has gone to considerable efforts to balance the competing

interests of school district hiring flexibility and employee protection.

Few protections have been afforded school district employees, but those

that have been provided are to be strictly respected. However unjust the

result of that balance may seem in this instance, we must recognize that

there are larger issues at stake than the present case. I am confident

that were this court to award reinstatement, in the future, school

districts would go to greater lengths to comply with state law. Clearly,

this was the intent of the legislature. The decision of the majority today

not only ignores unambiguous statutory language and judicial

interpretation, its strained effort to navigate away from the clearlymarked channels of state law frustrates the very purpose of the Arkansas

legislature's 1989 amendment.
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A true copy.

Attest:

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