McCaskill v. Fort Smith Pub. Sch. Dist.

Joe McCASKILL v. FORT SMITH PUBLIC SCHOOL
DISTRICT

95-874                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 28, 1996


1.   Judgment -- standard for review of summary judgment --
     respective burdens of proof. -- The standard for review of a
     summary judgment is whether the evidentiary items presented by
     the moving party in support of the motion left a question of
     material fact unanswered and, if not, whether the moving party
     is entitled to judgment as a matter of law; all proof is
     viewed in the light most favorable to the party opposing the
     motion, and all doubts and inferences are resolved against the
     moving party; however, when the movant makes a prima facie
     showing of entitlement to summary judgment, the respondent
     must meet that proof with proof showing a genuine issue for
     trial.  

2.   Judgment -- appellee met burden of showing entitlement to
     judgment as a matter of law -- appellant failed to meet proof
     with proof. -- Appellant's contention that there was a genuine
     issue of material fact involving intentional concealment of
     information that would have led him to avail himself of the
     grievance procedure was without merit; as the moving party,
     appellee demonstrated that there were no disputed factual
     issues regarding appellant's 1990-91 contract and stated
     unequivocally that the sole reason for appellant's
     reassignment was the overall change to the junior-high
     program; appellee met its burden of showing entitlement to
     judgment as a matter of law; appellant did not meet his burden
     of rebutting appellee's proof with proof of a disputed issue
     of material fact where he offered no proof whatsoever that the
     reason for his reassignment was anything other than the
     restructuring of the overall program; appellant did not prove
     that anything was fraudulently concealed from him. 

3.   Administrative law & procedure -- superseding portion of
     Teacher Fair Dismissal Act interpreted -- appellant's previous
     contract superseded when he signed new contact. -- Appellant's 
     contention that he was entitled to a trial because appellee
     did not strictly comply with the Teacher Fair Dismissal Act
     was meritless where appellant signed a superseding contract
     for a reduction in salary after the reassignment or nonrenewal
     of his coaching duties in 1990; pursuant to the terms of Ark.
     Code Ann.  6-17-1506(a), by appellant's signing the 1990-91
     contract, the 1989-90 contract was superseded and the notice
     requirements of the Teacher Fair Dismissal Act no longer
     applied; appellant could not sign a superseding contract and
     then claim the protection of the notice and renewal
     requirements of the Act; moreover, he could not sign a
     superseding contract and then wait well past the Act's
     limitation period for contesting the nonrenewal.


     Appeal from Sebastian Circuit Court; Floyd G. Rogers, Judge;
affirmed.
     Walker Law Firm, by:  William J. Kropp, III, for appellant.
     Thompson & Llewellyn, by:  James Llewellyn, Jr., for appellee.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 5-28-96  *ADVREP*SC6*





JOE MCCASKILL,
                    APPELLANT,

V.

FORT SMITH PUBLIC SCHOOL
DISTRICT,
                    APPELLEE,



95-874



APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT,
NO. CIV 94-340-II,
HON. FLOYD G. ROGERS, JUDGE,



AFFIRMED.





      Appellant, Joe McCaskill, appeals the letter order of the
Sebastian County Circuit Court granting summary judgment to
appellee, Fort Smith Public School District, on appellant's
complaint under The Teacher Fair Dismissal Act of 1983, Ark. Code
Ann.  6-17-1501 to -1510 (1987 & Supp. 1995).  The interpretation
and construction of The Teacher Fair Dismissal Act is at issue in
this case.  Jurisdiction of this appeal is therefore properly in
this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3).
     Appellant filed a complaint and request for reinstatement with
appellee, relying on his 1989-90 contract for employment as
secondary-education teacher and seventh-grade coach.  Appellant
alleged he had been employed as a teacher and coach with appellee
since 1977 when he was "reassigned away" from his coaching
responsibilities beginning with his 1990-91 contract.  According to
the complaint, the reason for his 1990 reassignment from coaching
duties was intentionally concealed from him and made without notice
to him.  Appellant alleged in his complaint that it was not until
August 23, 1993, while attending an unrelated school board meeting,
that he discovered that the reason for his reassignment from
coaching duties in 1990 was disciplinary in nature.
     Appellee moved for summary judgment.  The trial court granted
the motion, ruling that appellant entered into a new contract with
appellee for the 1990-91 school year and that, having received the
benefits of the new contract, he was estopped from asserting his
right to lack of notice from appellee.  The trial court also ruled
that appellant was precluded from recovering against appellee for
his failure to file a prompt claim within seventy-five days after
notice of the reassignment as required by section 6-17-1510.
     The standard for review of a summary judgment is whether the
evidentiary items presented by the moving party in support of the
motion left a question of material fact unanswered and, if not,
whether the moving party is entitled to judgment as a matter of
law.  National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996); Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). 
This court views all proof in the light most favorable to the party
opposing the motion, resolving all doubts and inferences against
the moving party.  Id.  However, when the movant makes a prima
facie showing of entitlement to summary judgment, the respondent
must meet that proof with proof showing a genuine issue for trial. 
Id.
     Attached to appellee's motion for summary judgment was the
1989-90 contract for employment between appellant and appellee at
a rate of approximately $30,260.00, showing appellant's duties as
teacher--secondary education and seventh-grade coach.  Also
attached to appellee's motion was the contract for the 1990-91
school year at a rate of approximately $27,200.00, showing
appellant's duties as teacher--secondary education.  Finally,
attached to the motion was a determination from the EEOC concluding
there was no evidence that appellant's February 1990 application
for head coach of the ninth-grade football team was denied because
of his race.  
     In his response to appellee's motion for summary judgment,
appellant argued there was a genuine issue of material fact
involving the intentional concealment of information which would
have led appellant to avail himself of the grievance procedure
under The Teacher Fair Dismissal Act.  Attached to appellant's
response were two exhibits:  the deposition of Dr. Benny Gooden,
superintendent of appellee school district, and appellant's
affidavit.  In his affidavit, appellant stated that he was not
aware that the reason for his reassignment was disciplinary in
nature until it was revealed during the August 23, 1993 school
board meeting.  In his deposition, Dr. Gooden stated that appellant
was reassigned from his seventh-grade coaching responsibilities
because the then director of athletics was attempting to improve
and balance the junior high athletic program.  Dr. Gooden explained
that, at that point, the athletic director made several
reassignments involving several other people.  Dr. Gooden stated
that he had previously observed appellant in a coaching capacity
and witnessed some behavior he considered to be inappropriate. 
However, Dr. Gooden stated that there was no reason for appellant's
reassignment other than the overall changes to the junior high
program and that he was not aware whether appellant was given any
reason other than the foregoing for his reassignment.  Dr. Gooden
admitted signing a letter in which he stated that appellant was
reassigned from his coaching responsibilities because the overall
junior high program would be better served.  Dr. Gooden also stated
that appellant filed a grievance about his reassignment in
September 1993 and was afforded every step in the policy even
though he was technically outside the parameters of the policy. 
Finally, Dr. Gooden stated that he was aware that if the district
was terminating a teacher, the statute requires that the teacher be
counseled or confronted with the reason for termination.  
     Appellee replied to appellant's response to the motion for
summary judgment and attached the deposition of school board member
Michael D. Helm.  Mr. Helm was a member of the school board in
1989-90 when appellant's reassignment was made.  In his deposition,
Mr. Helm discussed the August 23, 1993 school board meeting at
which an unrelated discussion between Mr. Helm and appellant turned
to appellant's prior coaching behavior.  Mr. Helm specifically
recalled witnessing appellant drag a ninety-pound child across the
football field by his face-mask.  Mr. Helm explained that he
brought up the incident during the meeting, although he had never
previously mentioned it to appellant, as a reaction to some very
pointed accusations about the school board's integrity.  Mr. Helm
admitted he overreacted.  
     For reversal, appellant first contends there is a genuine
issue of material fact involving intentional concealment of
information which would have led him to avail himself of the
grievance procedure.  We disagree and conclude no fraudulent
concealment occurred.  As the moving party, appellee has
demonstrated there were no disputed factual issues as to
appellant's 1990-91 contract.  While Dr. Gooden indicated he
discussed appellant's behavior with the athletic director, he
stated the discussion occurred within the context of the proposal
to restructure the overall coaching program.  Moreover, Dr. Gooden
stated unequivocally that the sole reason for appellant's
reassignment was the overall change to the junior high program.  On
this record, appellee has therefore met its burden of showing
entitlement to judgment as a matter of law.  Appellant has not met
his burden of rebutting appellee's proof with proof of a disputed
issue of material fact.  Appellant has offered no proof whatsoever
that the reason for his reassignment was anything other than the
restructuring of the overall program.  Even Mr. Helm's deposition
confirms this, wherein he admitted having personal knowledge of
appellant's behavior, but denied having knowledge that the behavior
had any connection to the reassignment.  In short, appellant has
not proved anything was fraudulently concealed from him.  His first
argument for reversal is without merit.
     For his second point for reversal, appellant contends he is
entitled to a trial because appellee did not strictly comply with
The Teacher Fair Dismissal Act.  Appellant argues that appellee did
not provide the requisite notice of the 1990 nonrenewal and carried
out the reassignment as a nonrenewal thus avoiding the hearing
requirements of the Act.  Appellant relies heavily on Western Grove
Sch. Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994), wherein
this court held that a school district's actions in reducing a
teacher-coach's compensation and coaching duties amounted to a
nonrenewal triggering the Act's prior notice requirement.  In
Terry, this court stated that, "what took place was not a
reassignment of duties but a nonrenewal of Terry's contract."  Id.
at 321, 885 S.W.2d  at 302.  This court went on to frame the issue
as whether the notice requirements of the Act, specifically section
6-17-1506, had been satisfied.  Noting that strict compliance is
the standard, this court concluded no prior notice of the
nonrenewal had been given to Terry and held the school board's
actions consequently void.
     In the present case, appellee distinguishes Terry by pointing
out that, unlike Terry, appellant signed a superseding contract
after the reassignment or nonrenewal in 1990.  This is an accurate
distinction.  When presented with the reassignment or nonrenewal,
Terry refused to sign the contract.  See Terry, 318 Ark. 316, 885 S.W.2d 300.  However, in the present case, appellant elected to
sign the 1990-91 contract which reassigned his coaching duties. 
Citing section 6-17-1506(a), appellee contends the 1990-91 contract
signed by appellant is a superseding contract that relieves
appellee of complying with The Teacher Fair Dismissal Act.  We
agree.
     Section 6-17-1506(a) provides as follows:
          6-17-1506. Automatic contract renewal -- Notice of
     nonrenewal.

           (a) Every contract of employment made between a
     teacher and the board of directors of a school district
     shall be renewed in writing on the same terms and for the
     same salary, unless increased or decreased by law, for
     the next school year succeeding the date of termination
     fixed therein, which renewal may be made by an
     endorsement on the existing contract instrument, unless
     by May 1 of the contract year, the teacher is notified by
     the school superintendent that the superintendent is
     recommending that the teacher's contract not be renewed
     or, unless during the period of the contract or within
     ten (10) days after the end of the school year, the
     teacher shall deliver or mail by registered mail to the
     board of directors his or her resignation as a teacher,
     or unless such contract is superseded by another contract
     between the parties.  [Emphasis added.]

This is the first time this court has been called upon to interpret
the superseding contract portion of The Teacher Fair Dismissal Act. 
The plain language of the Act clearly indicates a legislative
intent that the parties be allowed a mechanism to renegotiate an
existing contract or to negotiate a new contract.  There is no
question that, according to Terry, the 1990-91 contract between
appellant and appellee would have constituted a nonrenewal of the
1989-90 contract due to the reduction in coaching duties and
compensation.  However, pursuant to the very terms of section 6-17-
1506(a), by appellant's signing the 1990-91 contract, the 1989-90
contract was superseded and the notice requirements of The Teacher
Fair Dismissal Act no longer applied.
     Appellant argues in his brief that he did not receive any
benefit from signing the new contract, and therefore the doctrine
of equitable estoppel cannot be applied to him.  That allegation is
entirely without merit, primarily because we are not concerned with
equitable estoppel; rather, we are concerned with the application
of The Teacher Fair Dismissal Act.  Appellant simply cannot sign a
superseding contract and then claim the protection of the notice
and renewal requirements of the Act.  Moreover, he cannot sign a
superseding contract and then wait well past the Act's limitation
period for contesting the nonrenewal.  His second argument for
reversal is without merit.
     The order granting summary judgment to appellee is affirmed.
     ROAF, J., concurs.
     GLAZE, J., dissents.
     JESSON, C.J., and DUDLEY, J., not participating. *ADVREP*SC6-A*






JOE MCCASKILL,
                    APPELLANT,

V.

FORT SMITH PUBLIC SCHOOL
DISTRICT,
                    APPELLEE.



95-874

Opinion Delivered:  5-28-96








DISSENTING OPINION





                  TOM GLAZE, Associate Justice

     I dissent.  This Teacher Fair Dismissal case should not have
been decided on a motion for summary judgment because a genuine
issue of material fact exists.  The issue is whether the school
district concealed the true reasons for reassigning Joe McCaskill
on May 29, 1990, when the district removed him from his coaching
duties.  The evidence submitted below reflects the district may (or
may not) have done so, depending upon which version of facts given
by Superintendent Benny Gooden you choose to believe.
     Indisputably, McCaskill was advised of a "change in
assignment" to teach computer classes.  On reassignment, his salary
was reduced from $29,731 to $27,200.  Gooden stated that no written
reason was given McCaskill concerning his reassignment, and he had
no knowledge of anyone discussing with McCaskill the fact
McCaskill's behavior, while a coach, played a role in the
reassignment.
     Over three years later, August 23, 1993, McCaskill appeared at
a school board meeting involving an unrelated matter when a board
member, Michael Helm, openly revealed McCaskill had been removed
from his coaching responsibilities because of the abusive behavior
he had shown towards school children.  McCaskill said that this was
the first time he had been informed of the reason for his earlier
reassignment.  He subsequently brought this suit against the school
district alleging the district had violated the Teacher Fair
Dismissal Act by violating Ark. Code Ann.  16-17-1504(c) (Repl.
1994), which provides as follows:
          (c)  Whenever a superintendent or other school
     administrator charged with the supervision of a teacher
     believes or has reason to believe that a teacher is
     having difficulties or problems meeting the expectations
     of the district or its administration and the
     administrator believes or has reason to believe the
     problems could lead to termination or nonrenewal of
     contract, the administrator shall bring the problems and
     difficulties to the attention of the teacher involved in
     writing and shall document the efforts which have been
     undertaken to assist the teacher to correct whatever
     appears to be the cause for potential termination or
     nonrenewal.  (Emphasis added.)
     The district argues it did not violate  6-17-1504(c) because
the proof shows McCaskill's behavior was not the reason for his
reassignment.  The evidence is very much in conflict on this issue. 
Besides Helm's statement already mentioned, Gooden's testimony
presented proof that McCaskill's alleged abusive behavior played a
role in his reassignment.  
     For example, Gooden said that his decision to approve
reassignment of McCaskill was based upon the recommendations of the
director of athletics, Bill Stancil.  Gooden stated that he had
attended a lot of athletic events and had observed some things
McCaskill had done which Gooden thought were inappropriate.  He
further said his personal observations verified what Stancil "was
speaking about."  Gooden related that when talking with Stancil
about reassigning a coach, Gooden's normal response would be "if
there are behaviors that you (Stancil) are not pleased with, can we
change those behaviors?"  Stancil's response was that you are not
going to change those behaviors.  Finally, Gooden testified that
"[I]t is correct that I had a discussion with Bill Stancil about
Joe McCaskill's behavior in the context of reassigning him."
     In contrast to the above evidence, Gooden also offered
testimony to the effect that McCaskill's behavior had nothing to do
with his reassignment.  The district relies on Gooden's conflicting
testimony when arguing it had no duty to comply with  6-17-
1504(c), requiring it to bring those behavioral problems and
difficulties in writing to McCaskill's attention.  Instead, the
district stood mute in this regard and chose to treat McCaskill's
removal merely as a reassignment.  In making this choice, the
district claimed it had no duty to comply with the requirements of
the Teacher Fair Dismissal Act when contract terminations or
nonrenewals are involved.  
     In sum, whether the district intended to conceal its true
reason for removing McCaskill from his coaching duties is a fact
question and, in view of the record before this court now, that
question should be decided by a jury.  Summary judgment simply is
not appropriate in these circumstances.
     Finally, the trial court concluded that McCaskill was estopped
from asserting his reliance on  16-17-1504(c) and other statutory
notice requirements because he entered a new contract with the
district for the 1990/91 year.  Of course, before estoppel applies,
the party to be estopped must know the facts.  Foote's Dixie
Dandy v. McHenry, Adm'r, 270 Ark. 816, 607 S.W.2d 323 (1980). 
Here, if a jury should decide the district withheld the true reason
from McCaskill as to why he was removed and his contract was not
renewed, the doctrine of estoppel would be inapplicable because
McCaskill was unaware of his termination and the reasons therefore. 
If he had had this knowledge, he could have availed himself of the
remedies afforded under the Teacher Fair Dismissal Act.