### The Honorab le Patrick A. Conmy, United States District Judge 1 

### for the District of North Dakota. ___________ No. 95-1756

___________ Karen Flath, * * Appellant, * * Appeal from the United States v. * District Court for the * District of North Dakota. Garrison Public School District * No. 51; Dennis Carter, * * Appellees. *

___________ Submitted: October 20, 1995 Filed: April 26, 1996

___________ Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ WOLLMAN, Circuit Judge.

Ka renFlath appeals from the district court's grant of summar y 1 judgment in favor of the Garrison Public School District and its elementar y principal, Dennis Carter, in Flath's lawsuit alleging a violation of her constitutional and statutory rights. We affirm.

I.

Flath was employed by the Garrison Public School District as a Chapter On e teacher from 1983 through 1992, when her contract was no t renewed. In 1989, Dennis Carter became the elementary principal a t Garris onPublic School. As elementary principal, Carter supervised an d evaluated Flath's teaching abilities. During

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th e spring of 1990, a parent complained to Carter that Flath ha d inappropriatelydisciplined her child. Carter met with Flath about this incident but did not issue a formal reprimand.
During the next two years, the working relationship between Fla th and Carter be gan to deteriorate. In the fall of 1990, Flath criticize d Carter 's administrative techniques in a school improvement survey. I n April 19 91, Carter issued a formal reprimand against Flath for he r respo nses, viewing her remarks as a personal attack. Carter als o reprimandedher in May 1991 for speaking out against him at a Garriso n EducationAssociation (GEA) meeting, claiming that she was causin g disse nsionamong the staff. In July 1991, Flath filed grievance s chal lenging the April and May reprimands. The Garrison School Boar d (Board) eventually resolved these matters in her favor and the forma l reprimands were removed from her permanent file.
During the 1991-92 school year, Carter and Flath had numerou s confron tations. In October 1991, Carter evaluated Flath and gave he r unsatisfactorymarks for discipline in the classroom. Later that month, Carter received a complaint that Flath had struck a student on the chin. Flath admitted that she had struck the child lig htly. As a result, Carter de vised an action plan for Flath which prohibited her from usin g inappropriate physical contact on students to control behavior.

In February 1992, Carter received three additional complaints fro m parents who claimed that Flath had used inappropriate techniques such as pullin g hair, twisting ears, and bending back fingers to disciplin e stud ents. Carter investigated these incidents and met with Flath t o discuss them. On Fla th's next evaluation, Carter gave her unsatisfactory marks for her disciplinary techniques.

### -3- As a r esult of the disciplinary problems, Carter in March 199 2 recommended that the Board not renew Flath's con tract. The Board voted to contemp late nonrenewal of Flath's contract and sent her notice of th e nonrenewal hearing. In April 1992, the Board he ld a hearing and voted not to renew Flath's contract, citing her "lack of ability to appropriatel y discipline students" as the reason for nonrenewal.

II.
We review the district court's grant ing of summary judgment de novo. Mumford v . Godfried , 52 F.3d 756, 759 (8th Cir. 1995). Thus, we wil l affirm the lower cour t's decision if "there is no genuine issue as to any mat erial fact and . . . the moving party is entitled to judgment as a matter of law." Plumbers Union v. City of Omaha , 946 F.2d 599, 600 (8th Cir. 1991) (citations omitted). "Where the unresolved issues are primaril y legal rather than fac tual, summary judgment is particularly appropriate." Mumford , 52 F.3d at 759 (citing Crain v. Board o f Police Comm'rs , 920 F.2d 1402, 1405-06 (8th Cir. 1990)).

Flath fi rst alleges that her due process rights were violated when she was terminated from her teaching position. She bases her claim on the Board's failure to produce any witnesses to substantiate the reasons for nonrenewal, thus denying her the opportunity to cross examine the witnesse s testifying against her. She also claims that Carter violated her du e process rights because he relied solely on hearsay evidence in recommendin g nonrenewal of her contract.

Section 1 5-47-38(5) of the North Dakota Century Code sets forth the procedure that must b e followed to nonrenew a teacher's contract in North Dakota. First, the reasons given by a school board for nonrenewal "must be suffic ient to justify the contemplated action . . . and may not b e frivolous or arbitrary but

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must be related to the ability, competence, or qualifications of th e te acher . . . ." N.D. Cent. Code § 15-47-38(5) (1993). The statut e provides that "[a]t the meeting with the board the teacher may then produc e such evidence as may be necessary to evaluate the reasons for nonrenewal, and either party may produce witnesses to confirm or refute the reasons. The ad ministrator shall substantiate the reasons with written or ora l evidence . . . ." Id.

We find F lath's contentions unpersuasive. Section 15-47-38(5) does not require a school board to produce witnesses. Nor does subsection (5) require t he Board to sustain its reasons for nonrenewal. See Lithun v

. Gra nd Forks Pub. Sch. , 307 N.W.2d 545, 553 n.6 (N.D. 1981) (notin g differ ence in school board's evidentiary burden of proof in dismissin g teacher under 15-47-3 8(2) and nonrenewing teacher's contract under 15-47- 38(5)).

Su bsection(5) specifically states that the reasons for nonrenewa l may be established by oral or written evidence. The evidence presented at the hearing included Flath's unsatisfactory teacher evaluations, complaint s from parents criticiz ing Flath's discipline techniques, and documentation of the action taken by the administration as a result of the complaints. Inaddition, Flath admitted that she had struck one of the students. We find t his evidence sufficient to support the nonrenewal of Flath' s contract.

Whether o r not section 15-47-35(5) required the Board and Carter to produc e witnesses to substantiate the charges against her, Flath wa s provided a ll the process due her under the Fourteenth Amendment. Se e Sc huler v. Univ. of Minnesota , 788 F.2d 510, 515 (8th Cir. 1986 ) (university's noncompliance with student grievan ce procedure irrelevant if constitutionally adequate process is otherwise provided), cert. denied , 47 9 U.S. 1056 (1987). To satisfy pretermination due process, a public employe e is entitled to notice of the charges, an explanation of the evidence, and
an

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opportunityto be heard. Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 54 6 (1985). Generally, something less than a formal adversaria l hearing is required. Demming v. Housing & Redevelopment Auth. , 66 F.3 d 950, 953 (8th Cir. 1995). Rather, the purpose of the preterminatio n hearing is to ensure that "`there are reasonable grounds to believe that the char ges against the employee are true and support the propose d action.'" Id. (quoting Loudermill , 470 U.S. at 546). We have held that "`informal meetings with supervisors'" are sufficient to satisfy the due process hearing requi rement. Schleck v. Ramsey County , 939 F.2d 638, 641 (8th Cir. 1991) (quoting Riggins v. Board of Reg ents of Univ. of Nebraska , 790 F.2d 707, 711 (8th Cir. 1986)). Moreover, we have rejected a discharged employee's argument that a university grievance procedure was consti tutionallyinadequate because it would not have granted her th e opportunityto confront or cross examine witnesses at a post-termination hearing. Riggins , 790 F.2d at 711-12.

Flath r eceived notice of the contemplated nonrenewal and a n explanation of the charges against her. She hadan opportunity to respond to the charges at the nonrenewal hearing. She was thus afforded all the proce ss she was due. See Demming , 66 F.3d at 954; Riggins , 790 F.2d a t 710-11.

III.

Flath nex t asserts that the nonrenewal of her contract violated her First Amendment rights. Specifically, she claims her contract was no t renewedbecause she criticized Carter in a school improvement survey and because she voiced concerns about Carter at a GEA meeting. The district court granted summary judgment for defendants on this claim, stating that "nothing has been shown which could rise to the status of a violation of a constitutional or federally protected right."

### -6- We find it unnecessary to decide whether Flath's statement s constituted protected speech, for, assuming that they did touch on matters of public concern, Flath has failed to show that her nonrenewal wa s substantially motivated by these statements. Ca rter presented no evidence regarding these incid ents at the nonrenewal hearing. Moreover, the Board had already agreed with Flath that the reprimands were unwarranted an d instructed Carter to remove the reprimands from Flath's file.

IV.

Flathalso contends that the Board violated section 15-47-38(6)

. Subsection (6) states:
No teacher may be discha rged and no school board may refuse to renew a teacher's contract under this section basedsolely upon an investigation of alleged child abuse or neglect . . . i n whicha determination was made that no probable cause existed to believe that the child abuse or neglect was indi cated, or in which a determination was made that probable cause did exist to bel ieve that child abuse or neglect was indicated but a decision relating to the alleged abuse or neglect has not been made by a court of competent jurisdiction.

Flath asserts that the district court erred in finding section 15-47- 38( 6) inapplicable. We find her argument to be unpersuasive. At al l times, the Board's reason for nonrenewal was Flath's inability t o discipline students. The Board was not aware of the Social Services ' investigation when it voted to contemplate nonre newal of Flath's contract. As the district court stated in its Memorandum and Order:
The record is clear and apparently undisputed that no member of the school board or admi nistration was aware that the parent's complain ts had been also made to the County, or that an y inv estigationof alleged child abuse or neglect had in fac t been don e. Nowhere does it appear that any board member wa s privy to any information gained

### -7- through any investigatio n, or that any investigative materials were relied upon in any way.

We have examined Flath's remaining contentions and find them to b e without merit.
The judgment is affirmed.

A true copy.

Attest:

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