concurring in part and dissenting in part.
I concur with the majority in all respects except as to its determination in Part III A that the employment contract of plaintiff, Kristine E. Axtell, did not, as a matter of law, incorporate any benefits or obligations pursuant to the Certificated Personnel Performance Evaluation Act, § 22-9-101, et seq., C.R.S.1997 (Evaluation Act).
Private parties may incorporate a statutory scheme into a contract provided that such incorporation is not in violation of the constitution or public policy. See Pierce v. St. Vrain Valley School District RE-1J, 944 P.2d 646 (Colo.App.1997) (parties cannot by private contract abrogate constitutional or statutory requirements or conditions affecting the public policy of the state).
The Evaluation Act requires that “all certificated personnel” receive a written evaluation report providing a written improvement plan, setting forth what improvements, if any, are needed in the certificated personnel’s performance. See § 22-9-106, C.R.S. 1997. Certificated personnel include both probationary and non-probationary teachers. See § 22-9-103(1.5), C.R.S.1997. Pursuant to the Evaluation Act, a teacher whose performance is deemed unsatisfactory shall receive a remediation plan to correct the deficiencies and shall be given a reasonable time for remediation of such deficiencies. Section 22-9-106(3.5), C.R.S.1997.
Here, the written employment contract provided in pertinent part:
All applicable Board of Education policies, procedures, FORMAL AGREEMENTS BETWEEN THE BOARD AND TEACHERS, and state statutes concerning teacher rights, benefits and obligations are incorporated herein and made part of this contract, (capitalization in original, other emphasis added)
In my view, since the Evaluation Act concerns teacher rights, benefits, and obligations, the plain language of the employment contract incorporated the provisions of that statute. See Denver Classroom Teachers Ass’n v. School District No. 1, 911 P.2d 690 (Colo.App.1995) (language of a contract *323must be construed in harmony with the plain and generally accepted meaning of words employed).
Even if the majority is correct in its conclusion that Axtell does not have any rights under the Evaluation Act that would be created by a private right of action, it nonetheless remains true that she is provided a benefit, specifically a performance evaluation and remediation plan. Further, the School District is likewise bound by an obligation, specifically, to comply with the evaluation and remediation procedures as set forth in the Evaluation Act. See Department of Health v. Donahue, 690 P.2d 243 (Colo.1984) (personnel rule granting informal meeting to public employees whose job performance deemed unsatisfactory included probationary employees and, therefore, failure to grant probationary employee prediseiplinary meeting pursuant to rule held to be violation of procedural due process).
I recognize that the Teacher Employment, Compensation, and Dismissal Act (TECDA), § 22-63-203, C.R.S.1997, provides that a probationary teacher does not have any right to renewal of his or her employment contract. Also, although TECDA does entitle a probationary teacher to written notice of the reasons for contract nonrenewal, it does not establish any rights for probationary teachers, either in contract or property. See § 22-63-203(4)(b), C.R.S.1997. However, Axtell does not assert here any right to renewal of her contract or any other right under TECDA. Rather, she contends that the School District denied her a proper evaluation and remediation plan pursuant to the Evaluation Act as incorporated into her employment contract.
I express no opinion on the merits of Ax-tell’s breach of contract claim. Further, if Axtell successfully establishes the School District’s breach, she would still have to prove damages. See Department of Health v. Donahue, supra.
The School District asserts that Axtell failed to prove actual damages and that, therefore, dismissal of her contract claim was appropriate. However, even if Axtell cannot prove actual damages, she may still be entitled to nominal damages. See Overland Development Co. v. Marston Slopes Development Co., 773 P.2d 1112 (Colo.App.1989); cf. Russell v. First American Mortgage Co., 39 Colo.App. 360, 565 P.2d 972 (1977) (recovery precluded where facts establishing damages are uncertain and speculative).
Accordingly, I would reverse the judgment on this claim and remand the cause for further proceedings to determine whether the School District breached the contract. In all other respects, I concur with the majority.