Whitney v. Board of Education

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 18 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

HELEN SUE WHITNEY,

Plaintiff-Appellant,
v.
No. 00-4032
THE BOARD OF EDUCATION OF
GRAND COUNTY and BILL
MEADOR,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:98-CV-202-B)

Andrew D. Roth of Bredhoff & Kaiser, P.L.L.C., Washington, D.C. (Robert H.
Chanin of Bredhoff & Kaiser, P.L.L.C., Washington, D.C., Michael T. McCoy,
General Counsel, Utah Education Association, Murray, Utah, and David G.
Challed of Challed Law Office, Salt Lake City, Utah, with him on the briefs), for
Plaintiff-Appellant.

Brent A. Burnett, Assistant Attorney General, State of Utah (Jan Graham, Utah
Attorney General, Litigation Division, with him on the brief), Salt Lake City, UT,
for Defendants-Appellees.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
BROWN, * Senior District Judge.

*
Honorable Wesley E. Brown, Senior District Court Judge for the
(continued...)
EBEL, Circuit Judge.

Helen Sue Whitney was fired from her position as a tenured teacher for the

Grand County (Utah) School District based on accusations of poor classroom

performance and assaulting a student. Whitney, who has been diagnosed as

suffering from depression, brought suit alleging that her firing violated, inter alia,

the Americans with Disabilities Act (ADA), two state statutes, and state contract

law. The defendants in Whitney’s suit are the Grand County School District

Board of Education (“the School Board”) and district superintendent Bill Meador

(collectively “the Defendants”). The district court granted the Defendants’

motion for summary judgment on all claims, and Whitney appeals. We reverse on

the ADA claim as to the School Board and the state statutory claims as to both

Defendants, and affirm on the ADA claim as to Meador and the breach of contract

claim as to both Defendants.

BACKGROUND

During the 1996-1997 school year, Whitney was a fourth grade teacher in

an elementary school in Utah’s Grand County School District, near Moab. She

*
(...continued)
District of Kansas, sitting by designation.

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had been a teacher in the district for nearly two decades, and she had tenure.

Whitney had experienced classroom performance problems in the past: a 1987

letter from a school principal documented parental complaints regarding

Whitney’s hair pulling, ear twisting, knocking student’s heads together, crying,

and raising her voice. According to her principal, Whitney had been investigated

by state social services sometime in the mid-1980’s.

At the start of the school year, several parents asked the school principal to

have their children transferred from Whitney’s class, expressing concerns about

Whitney’s yelling at and ridiculing students, crying in the classroom, and similar

allegations. Whitney maintains that she was not told of these concerns until a

conference in January 1997, and that even then the principal did not specifically

identify any problems with Whitney’s classroom management. Defendants

maintain, and Whitney does not dispute, that the principal discussed the following

concerns with Whitney: “understanding and control of emotions, behavior

management skills, parent perceptions, student perceptions, oral and written

communication skills, and assistance from administrator.”

On March 3, 1997, Whitney received a written evaluation from the

principal. It stated in part, “While Ms. Whitney still needs to make significant

changes to remediate the issues listed above, continued informal assistance rather

than formal remediation is recommended at this time.” The report reiterated

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concerns regarding understanding and control of emotions (“use of terms of

endearment [such as] ‘Honey’, ‘Dear’, and ‘Dolly’”) and behavior management

skills (“using a low threatening growl or a forced smile”).

On March 14, a committee of the Utah State Department of Human

Services submitted a report to the principal and to Meador, which was based on

classroom observation of Whitney. The report described Whitney’s manner as

“inappropriate,” noting severe “mood swings” during which Whitney would

suddenly become “angry and verbally abusive.”

On March 19, a student in Whitney’s class injured her foot on a piece of

metal. The student wrote in a time-out book that “You [i.e. Whitney] Hurt My

foot.” Whitney’s affidavit states that she “could have leaned into her” while

“directing her to sit down” but that she did not intend to push the student and that

Whitney could have lost her balance. The local police investigated but no charges

were filed. Whitney was placed on leave pending an investigation by the state

Division of Child and Family Services (DCFS).

On April 4, 1997, DCFS issued a preliminary report based on student and

parent interviews. The report found that the allegation of physical abuse arising

on March 19 was substantiated, and that seven of sixteen other allegations of

emotional abuse by Whitney investigated by DCFS were also substantiated. The

report “cautioned that Ms. Whitney may be high risk for self destructive

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behaviors as well, which could include suicide attempts,” and that she should be

cleared psychiatrically. On April 7, Meador notified Whitney that she was being

formally suspended pending the final DCFS report.

Whitney responded on April 14 with a letter in which she stated that her

recent problems arose from “either an actual or perceived disability relating to my

mental competency.” She stated “it is obvious to me, as it may be to you, that I

will require a reasonable accommodation. Accordingly, I hereby request a

reasonable accommodation . . . .”

The same day, Meador responded with a letter which stated, “It is

impossible to respond to your request without obtaining further information.” He

asked Whitney to provide the following within ten working days:

Please specifically identify the disability which you
claim. If there is a diagnosis regarding your “mental
competency” by a licensed professional or a DSM IV
diagnosis, please send such diagnosis to me. If not, then the
School District must request that you submit to a diagnosis by
a qualified professional to assess whether you are capable of
performing essential job duties. Please identify any specific
job duties you believe you are unable to perform as a result of
your mental incompetency.
In addition, you must specify the accommodation(s) you
are requesting. Your request is too vague to form an idea
about what you have requested and what may be reasonable
under the circumstances.

On April 18, Whitney responded by letter that she could not provide the

information Meador requested, because “nobody has told me what I am doing or

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not doing that constitutes the basis of my suspension.” She thanked Meador for

what she characterized as his offer to pay for an evaluation, but suggested that

such evaluation could not occur until the district had given her “specific

information about my conduct” that led to her suspension.

On April 21, Meador gave Whitney by letter “notice of termination of your

employment for cause effective 15 days after the date of this letter.” Meador’s

letter informed her that pending the date of termination she would be placed on

leave with pay. The letter stated that Whitney had the “right to a hearing before

the Board of Education to appeal this decision to terminate your employment for

cause.” Failure to request a hearing, the letter stated, would constitute waiver of

Whitney’s right to appeal.

The April 21 letter explained that “we are not aware of any disability

perceived or otherwise. . . . and we are not aware of any possible

accommodation.” No evaluation was necessary, Meador wrote, because no

identified disability had been claimed. The stated grounds for termination were

failure to fulfill duties and responsibilities, incompetence or inefficiency, inability

to maintain classroom discipline, behavior outside of acceptable community

standards, “failure to maintain effective working relationships, or maintain good

rapport, with parents, the community, or colleagues,” and assault on an employee

or student.

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 Whitney requested a hearing before the School Board, and in preparation of

the hearing she was examined by a licensed psychologist, Dr. James A. Ferro, on

May 7 and 14. The school board hearing was held June 17. Dr. Ferro testified at

length and submitted his written evaluation. He stated that Whitney had become

clinically depressed in late 1996, and he diagnosed her as suffering from Major

Depressive Disorder, Single Episode, In Partial Remission and Personality

Disorder Not Otherwise Specified, with Narcissistic Features. Dr. Ferro

concluded in his report, “Since Ms. Whitney’s disorder of affect and behavior is

remediable by psychotherapeutic intervention and since, at the time of this

writing, Ms. Whitney is very motivated to engage in counseling, this examiner

considers it very likely that she [will] be able to resume her teaching duties in the

Fall of 1997.” In testimony before the board, Dr. Ferro stated that “I really

believe that she’s capable of being able to remediate,” and he recommended that

she be reevaluated in three months to determine whether she is fit to return to the

classroom.

In its written findings and conclusions, the School Board “SUSTAIN[ed]

the recommendation of Superintendent Meador to terminate Ms. Whitney’s

employment for the causes stated in his 21 April 1997 letter to Ms. Whitney.” It

stated that “[t]he decision to terminate Ms. Whitney’s employment is based solely

on her conduct and performance related issues.” (Id. at 228.)

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 Whitney filed suit against the School Board and Meador in Utah state court

on February 24, 1998. On March 20, 1998, the Defendants removed to federal

court in the District of Utah. On December 15, 1998, Whitney filed an amended

complaint. She asserted causes of action under the ADA, 42 U.S.C. § 1983 for

alleged violations of due process and equal protection, two state statutes – the

Utah Orderly School Termination Act (“Termination Act”), Utah Code Ann.

§§ 53A-8-101 to -107, and the Educator Evaluation Act (“Evaluation Act”), Utah

Code Ann. §§ 53A-10-101 to -111 – and for breach of contract. Defendants

answered on January 21, 1999, and on April 8, 1999 moved for summary

judgment on all claims.

On September 27, 1999, the district court granted Defendants’ summary

judgment motion as to all claims. It later denied Whitney’s Rule 59(e) motion to

set aside its judgment as to the state law claims. Whitney filed a timely notice of

appeal on February 11, 2000, abandoning her due process and equal protection

claims and challenging the rejection of her ADA, state statutory, and breach of

contract claims.

DISCUSSION

Judgment granting or denying a motion for summary judgment under

Federal Rule of Civil Procedure 56 is reviewed de novo, applying the same

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standard employed by the district court. Kingsford v. Salt Lake City Sch. Dist.,

247 F.3d 1123, 1127-28 (2001). Summary judgment is appropriate where,

construing the evidence in the light most favorable to the non-moving party, there

is no genuine issue as to any material fact. Id.

I. ADA Claim

The ADA mandates in relevant part that “[n]o covered entity shall

discriminate against a qualified individual with a disability.” 42 U.S.C.

§ 12112(a). 1 Discrimination, as defined in the ADA, includes “not making

reasonable accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability who is an applicant or

employee . . . .” § 12112(b)(5)(A). Disability, as defined in the ADA, means:

(A) a physical or mental impairment that substantially
limits one or more of the major life activities of such
individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

1
We note that sovereign immunity presents no obstacle to Whitney’s suit
here. Although the Eleventh Amendment bars ADA claims against states, Bd. of
Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001), we have held
that Utah school districts are not arms of the state and thus are not entitled to
Eleventh Amendment immunity. Ambus v. Granite Bd. of Educ., 995 F.2d 992,
997 (10th Cir. 1993) (en banc).

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§ 12102(2). Whitney’s only claim is that she suffered from an actual impairment;

accordingly, we do not consider the “record of” or “regarded as” prongs.

If a mental limitation is not “known” to the employer, then any failure to

accommodate that limitation is not discrimination within the meaning of the

ADA. § 12112(b)(5)(A). The district court regarded this provision as dispositive

because “[i]t wasn’t until after her suspension that Whitney informed Meador that

she had a disability.” The problem with this conclusion, however, is that Whitney

is challenging her termination, not her suspension. It is therefore irrelevant

whether the Defendants knew of her limitation at the time of the suspension if

they knew of her limitation when she was terminated. In light of Dr. Ferro’s

testimony, including his diagnosis that Whitney suffered from major depression, it

is clear that Whitney’s condition was “known” to the School Board at the time it

voted to terminate her. We thus are compelled to conclude that the district

court’s reasoning in dismissing the ADA claim against the School Board was

erroneous.

Conversely, this same reasoning dictates that Meador did not violate the

ADA by any actions that he took prior to the School Board’s termination decision.

Indeed, Whitney appears to have conceded any ADA claim she had asserted

against Meador. (See Aplt B. at 19 (arguing that it is irrelevant what Meador

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knew about Whitney’s condition)); (Aplt R.B. at 1 (same).) Accordingly, we

affirm summary judgment on the ADA claim as to Meador.

At oral argument on appeal, the Defendants argued for the first time that

Whitney actually had been terminated by Meador per the April 21 letter, rather

than by the School Board in its written findings and conclusions. The board

hearing, the Defendants argue, merely afforded Whitney the opportunity to appeal

a decision that already had been made. Thus, they argue, Whitney had not made

her disability known to the Defendants at the time that the termination decision

was made, and summary judgment may be affirmed on this alternative ground.

We conclude that the Defendants’ argument to support summary judgment

is foreclosed by material factual issues in the record. Indeed, reviewing the

record, we find that the evidence strongly supports an argument that the School

Board, rather than Meador, was responsible for terminating Whitney’s

employment. Meador’s April 21 letter did not purport to terminate Whitney.

Instead, it gave her “notice of termination,” and specifically stated that Whitney

would continue to be paid “[p]ending the date of termination.” It also stated that

Whitney had the right to appeal Meador’s decision. Further, it is clear that the

School Board itself viewed Meador’s decision as merely a recommendation rather

than a final decision. When the board issued its written findings and conclusions,

it referred to Meador’s action as the “recommendation of Superintendent Meador

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to terminate Ms. Whitney’s employment.” At the termination hearing, the

administration attorney argued to the board why “it’s necessary that we

recommend termination to the Board of Education.” Finally, the board’s use of

the present tense is significant in stating that “[t]he decision to terminate Ms.

Whitney’s employment is based solely on her conduct and performance related

issues.”

Further support for the conclusion that Whitney was fired by the School

Board rather than Meador is to be found in the terms of Whitney’s only written

contract contained in the record. The contract was signed by the School Board

president on behalf of the School Board, and was not signed by Meador. The

contract stated that “this contract may be cancelled by the Board at any time . . .

for misconduct, poor health, incompetence or insubordination on your part.”

Finally, we note that the suggestion that superintendents rather than school

boards are responsible for firing teachers appears to be quite a novel one under

Utah law. With a single exception, 2 published decisions involving wrongful

termination suits brought by Utah teachers all have involved a school board as the

sole defendant. See Durfey v. Bd. of Educ. of Wayne County Sch. Dist., 604 P.2d

2
Our research has uncovered only one early case involving teacher
termination in which the teacher named a superintendent as a defendant, and the
naming of the superintendent in that case may be explainable by the fact that the
plaintiff also sought to restrain the defendants from transferring him. See Brough
v. Bd. of Educ. of Millard County Sch. Dist., 460 P.2d 336, 337 (Utah 1969).

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480 (Utah 1979); Pratt v. Bd. of Educ. of Uintah County Sch. Dist., 592 P.2d 628

(Utah 1979); Stringham v. Jordan Sch. Dist., 588 P.2d 698 (Utah 1978); Rowley

v. Bd. of Educ. of Duchesne County Sch. Dist., 576 P.2d 865 (Utah 1978); Brown

v. Bd. of Educ. of Morgan County Sch. Dist., 560 P.2d 1129 (Utah 1977);

Broadbent v. Bd. of Educ. of Cache County Sch. Dist., 910 P.2d 1274 (Utah Ct.

App. 1996); cf. Bd. of Educ. of Alpine Sch. Dist. v. Ward, 974 P.2d 824 (Utah

1999) (declaratory judgment action brought by school board regarding termination

of teachers).

We do not here decide as a matter of law whether Whitney was fired by the

School Board or Meador. That issue involves a factual determination of the sort

generally reserved for the fact finder. We hold simply that material issues of fact

preclude affirming summary judgment in favor of the Defendants on their

proposed alternative ground that Whitney was fired by Meador rather than the

School Board.

The Defendants’ remaining arguments for affirming summary judgment on

the ADA claim are similarly unavailing. They argue that Whitney’s firing was

permissible under the ADA because she posed a “direct threat” to the safety of

her students. 42 U.S.C. §§ 12111(3), 12113. We reject this argument, at least as

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a basis for summary judgment. 3 The direct threat defense applies where the

employee poses “a significant risk to the health or safety of others that cannot be

eliminated by reasonable accommodation.” § 12111(3). Here, there is a material

factual issue regarding whether Whitney posed any significant risk to the students

and, if so, whether that risk could be eliminated by reasonable accommodation.

Accordingly, the asserted direct threat is not an appropriate basis for summary

judgment. The Defendants also argue that Whitney has failed to allege substantial

limitation of a major life activity, 42 U.S.C. § 12102(2)(A), an argument not

considered by the district court below. Because the resolution of this argument is

not clear from the record, we decline to consider it in the first instance. Cf.

Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1228-29 (10th Cir. 1996).

In sum, the district court’s grant of summary judgment on the ADA claim is

affirmed as to Meador but reversed as to the School Board.

II. State Statutory Claims

Whitney appeals the summary judgment granted in favor of the Defendants

on claims brought under two Utah state statutes. The first statute is the

3
Because we reject the Defendants’ direct threat argument on the merits,
we do not reach Whitney’s argument that the Defendants waived the defense by
asserting it for the first time in their motion for summary judgment. Cf. Den
Hartog v. Wasatch Acad., 129 F.3d 1076, 1089 (10th Cir. 1997) (describing direct
threat defense as an affirmative defense).

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Termination Act, Utah Code Ann. §§ 53A-8-101 to -107, which establishes

procedures for firing employees of local schools. The second statute is the

Evaluation Act, Utah Code Ann. §§ 53A-10-101 to -111, 4 which sets out

procedures for reviewing teacher performance. In essence, Whitney alleges that

each statute entitled her to more notice of her alleged performance deficiencies,

and how to correct them, than she actually received, an entitlement that she

contends is enforceable through private suit. The district court granted the

Defendants’ motion for summary judgment on Whitney’s claims under both

statutes, holding that neither statute afforded a private right of action. 5 We

reverse.

In interpreting state law, we are bound by the holdings of the state’s highest

court, and absent such holdings we are obliged to predict how that court would

4
The Evaluation Act was amended effective July 1, 2001, by the Utah
legislature. See 2001 Utah Laws 86 (S.B. 16.) The changes are minor and not
relevant to the disposition of this case.
5
In the alternative, the court held that Whitney had failed to provide a
timely notice of claim as required by the Governmental Immunity Act, Utah Code
Ann. § 63-30-13. This alternative holding is erroneous. Under well-settled Utah
law, no notice of claim is required as to equitable claims. See Am. Tierra Corp v.
City of West Jordan, 840 P.2d 757, 759 (Utah 1992) (citing El Rancho Enters.,
Inc. v. Murray City Corp., 565 P.2d 778, 779 (Utah 1977)). The relief sought by
Whitney is reinstatement with backpay, which is equitable relief. Thurston v. Box
Elder County, 892 P.2d 1034, 1040-41 (Utah 1995). The district court’s
discussion of the notice of claim issue – a single sentence – does not address the
equitable relief exception. We conclude that Whitney’s failure to file a notice of
claim provides no support for the district court’s holding on the Evaluation Act
and Termination Act claims.

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rule, giving proper regard to the relevant rulings of lower state courts. Comm’r v.

Bosch’s Estate, 387 U.S. 456, 464-66 (1967); Fransen v. Conoco, Inc., 64 F.3d

1481, 1492 n.10 (10th Cir. 1995).

Here, the Utah Supreme Court has not specifically addressed whether

individuals enjoy an implied private right of action under either the Evaluation

Act or the Termination Act. Whitney notes that the state supreme court has

decided several cases asserting private claims under the Termination Act. See

Rowley, 576 P.2d 865; Abbott v. Bd. of Educ. of Nebo Sch. Dist., 558 P.2d 1307

(Utah 1976). In each of those cases, the court reached the merits of the private

plaintiff’s claim and did not question whether the plaintiff enjoyed a right of

action under the Termination Act. See Rowley, 576 P.2d at 866-67 (holding Act

does not bar dismissal for cause); Abbott, 558 P.2d at 1307 (affirming judgment

that the Act was not applicable to the factual situation presented). She cites no

analogous cases, and we have found none, involving the Evaluation Act. Whitney

argues that these cases offer some evidence that a private right of action exists

under the Termination Act. On the other hand, the Utah Supreme Court in a

different context has cited favorably an Iowa case for the proposition that “where

[a] statute does not expressly authorize private suits, no cause of action [exists]

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absent legislative intent.” Rollins v. Petersen, 813 P.2d 1156, 1164 (Utah 1991)

(citing M.H. v. State, 385 N.W.2d 533 (Iowa 1986)). 6

Turning to persuasive lower court case law, the Utah Court of Appeals has

addressed whether the Evaluation Act confers a private right of action, albeit

somewhat confusingly. See Broadbent v. Bd. of Educ. of Cache County School

Dist., 910 P.2d 1274 (Utah Ct. App. 1996). In Broadbent, the plaintiff was a

provisional, untenured teacher who alleged that her contract was not renewed in

retaliation for speaking out for the rights of disabled students. Id. at 1276. She

sued the school district, alleging that the non-renewal did not comply with the

procedural requirements of the Evaluation Act. Id. The plaintiff in Broadbent

did not seek to assert a claim under the Termination Act.

The Utah Court of Appeals clearly rejected the plaintiff’s claim, but the

ground for its holding is somewhat uncertain. At the outset of its decision, the

court concluded that the plaintiff’s non-renewal “occurred due to factors wholly

outside the scope of” the Evaluation Act. Id. at 1278. Thus, the court appears

initially to have disposed of the plaintiff’s claim on the merits.

However, the opinion went on to inquire whether the plaintiff had a right of

action under the Evaluation Act in the first place. That analysis focused on the

6
The issue before the court in Rollins was whether violation of a state
statute gave rise to a tort cause of action pursuant to the doctrine of negligence
per se.

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fact that “the [Evaluation Act] makes a distinction between ‘career educators,’

who are entitled to rely on continuing employment, and ‘provisional educators,’

who have not yet reached career status.” Id. at 1279. Much of the language in

this section of the opinion suggests that Broadbent’s holding is that only

provisional educators have no cause of action under the Evaluation Act. See, e.g.,

id. (stating that analysis of Cort v. Ash factors for implying private causes of

action does not “convince us that the [Evaluation Act] is meant to provide

provisional educators with a private cause of action”); id. at 1280 (stating that

both the Evaluation Act and the Termination Act “incorporate the distinction

between career and provisional educators” and concluding that “[t]o allow

Broadbent a private right of action would be to override” this distinction).

Whitney argues that the clear negative implication of the above reasoning is that

career teachers (such as Whitney) do enjoy a private cause of action under the

Evaluation Act. However, interwoven with this language is language suggesting

that no plaintiffs enjoy a private right of action under the Evaluation Act. See,

e.g., id. at 1278 (“[T]he courts of this state are not generally in the habit of

implying a private right of action based upon state law, absent some specific

direction from the legislature.”); id. at 1279 (“[T]here is no indication in the

[Evaluation Act] that the legislature intended to create a private remedy.”).

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 Broadbent, then, is significant to our inquiry in two respects. First, it

supports somewhat more clearly than Rollins the Defendants’ argument that Utah

law disfavors implied private rights of action. Id. at 1278. Second, it suggests

that no private right of action is available under the Evaluation Act, although this

language appears to be dicta. Ultimately, we conclude that, like the Utah

Supreme Court case law discussed above, Broadbent fails definitively to resolve

the issue before us.

Because the state courts have not resolved the statutory interpretation

question presented here, we undertake our own examination of the text, structure,

and purposes of the statutes. Several considerations bear upon our analysis.

Most importantly, our review of Utah law leads us to conclude that no means of

enforcing the Acts’ provisions exists unless an implied private right of action is

recognized. Neither the Evaluation Act nor the Termination Act expressly

provide for any means by which their mandatory provisions may be enforced.

Utah’s Administrative Procedure Act – which generally provides a cause of action

against state agencies for the enforcement of law and the vindication of legal

rights – expressly excludes from its scope teacher employment disputes. Utah

Code Ann. § 63-46b-1(2)(d) (“This chapter does not govern . . . state agency

actions to evaluate, discipline, employ, transfer, reassign, or promote . . . teachers

in any school or educational institution, or judicial review of those actions . . . .”).

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Nor does it appear that any other statute provide for any means of enforcement of

either Act.

An interpretation that renders the statutes in question merely precatory is

problematic because both statutes are framed in mandatory language. E.g., Utah

Code Ann. § 53A-8-103 (“A local school board shall . . . establish procedures for

dismissal of employees in an orderly manner without discrimination.” (emphasis

added)); § 53A-10-106 (“Any educator evaluation program adopted by a local

school board . . . shall provide the following: . . . personal notice to the

educator . . .; a reliable and valid evaluation . . . .” (emphasis added)); § 53A-10-

107 (“(1) An educator whose performance is inadequate . . . shall be provided

with a written document clearly identifying deficiencies, the available resources

for improvement, and a recommended course of action that will improve the

educator’s performance. (2) The district shall provide the educator with

reasonable assistance to improve performance.” (emphasis added)). Such

mandatory language is a powerful indication that the Utah legislature intended the

Acts to be legally enforceable. Cf. Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1, 24 (declining to infer a private cause of action because statute spoke

in terms “intended to be hortatory, not mandatory”); Bd. of Educ. of Granite Sch.

Dist. v. Salt Lake County, 659 P.2d 1030, 1035 (Utah 1983) (stating that the term

“‘shall’ . . . is usually presumed mandatory,” and holding the defendant liable for

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violation of statute partly because “‘shall,’ a word with a usually accepted

mandatory connotation, has been used throughout the statutory provisions”).

The inference arising from the Acts’ mandatory language is directly

supported by the following subsection of the Termination Act:

Hearings before district board or hearing officers —
Rights of employee — Subpoenas — Appeals.
(1) (a) Hearings are held under this chapter before the board or
before hearing officers selected by the board to conduct the
hearings and make recommendations concerning findings.
(b) The board shall establish procedures to appoint hearing officers.
(c) The board may delegate its authority to a hearing officer to
make decisions relating to the employment of an employee
which are binding upon both the employee and the board.
(d) Subsection (1) does not limit the right of the board or the
employee to appeal to an appropriate court of law.

§ 53A-8-105(1) (emphasis added). Subsection (1)(d) was added effective July

1999, and has not been construed by the Utah courts. While subsection (1)(d) by

its terms is merely a rule of construction rather than an affirmative grant of a

cause of action, the subsection would be utterly superfluous if school

“employees” such as Whitney enjoyed no “right . . . to appeal” school board

decisions to a court of law. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253

(1992) (courts should disfavor interpretations of statutes that render language

superfluous); Platts v. Parents Helping Parents, 947 P.2d 658, 662 (Utah 1997)

(“We will avoid an interpretation that renders portions of, or words in, a statute

superfluous or inoperative.” (citation omitted)).

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 At oral argument on this appeal, the Defendants argued that § 53A-8-

105(1)(d) serves only to permit a state-court appeal from the school board

decision to the Utah Court of Appeals. They argued that this provision does not

acknowledge the propriety of a separate judicial attack on the school board action,

particularly when that attack is proceeding in federal court. We find this

argument unpersuasive at best. First, we conclude that the fact that the present

action has been litigated in federal court to be irrelevant in this case; Whitney

filed this action in state court, and it was the Defendants who elected to remove it

to federal court. Second, the Defendants have produced no authority, statutory or

otherwise, in support of their suggestion that Whitney was obligated to assert her

Evaluation Act and Termination Act challenges in the state court of appeals rather

than the state trial court. To the contrary, it appears that all such claims decided

by the Utah courts originated at the trial court level. See, e.g., Elwell v. Bd. of

Educ. of Park City, 626 P.2d 460, 463 (Utah 1981) (noting that Termination Act

action was filed and tried in Utah district court); Abbott, 558 P.2d at 1307 (noting

that plaintiff’s Termination Act claim was tried to judgment); Broadbent, 910

P.2d at 1275 (noting that Evaluation Act claim was dismissed on summary

judgment by trial court).

While we acknowledge that Utah case law does not speak with perfect

clarity on the issue before us, our review of that case law and the statutes in

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question persuades us that the Utah Supreme Court would infer private rights of

action under the Evaluation Act and the Termination Act. Accordingly, we

reverse the district court’s decision to grant summary judgment in favor of the

Defendants on the Evaluation Act and Termination Act claims.

III. Breach of Contract Claim

Whitney alleged that she was denied “an opportunity to remediate

unsatisfactory or problem behaviors” with assistance from the Defendants, and

that such denial constituted a breach of her contract. She argues that this right to

remediation was incorporated into the terms of her contract because such

remediation was mandated by the school district’s written personnel policies, and

such policies become part of every teacher contract. Whitney asserts that these

policies establish a mandatory three-step process that must be followed prior to

termination: informal remediation, formal remediation, and probation.

Although Whitney claims that board policy is incorporated into the terms of

teacher contracts, she has failed to include in the record either her contract or any

board policy. The Defendants included Whitney’s contract for the 1977-78 school

year in the record, and this contract does not purport to incorporate board policy

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into the terms of the contract. 7 The only evidence identified by Whitney that such

policies were incorporated into the terms of her contract is the affidavit of James

L. Walker, who was President-elect of the local education association at the time

that one of the policies was negotiated between the board and the education

association. He asserts, “I personally know it was the intent of the [education

association] and the Grand County Board of Education . . . that no teacher be

terminated for the reasons listed in Policy 4155B without first implementing

formal remediation and probation.”

In her reply brief on appeal, Whitney concedes that “defendants are correct

in pointing out that the affidavit evidence submitted by Whitney in opposition to

Defendants’ motion for summary judgment on her breach of contract claim

consisted entirely of ‘parol evidence.’” However, she argues that Utah’s parol

evidence rule does not bar the affidavit testimony, because that rule would bar her

evidence “only if . . . the parol evidence . . . was at odds with the terms of the

School Board’s written remediation and termination policies.” (Emphasis added.)

7
The 1977-78 contract states that “You [i.e., Whitney] are hereby subject
to the direction of the Superintendent and/or the Principal and to the rules and
regulations of the Board of Education . . . .” Whitney does not argue that this
provision amounts to an incorporation of board policy generally into the contract.
Nor does it appear that such an argument would be availing; this provision
identifies Whitney, and not the School Board, as the party contractually bound to
adhere to board policies.

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 Whitney’s argument relies upon an erroneous statement of the law. The

parol evidence rule bars additional terms as well as contrary terms. As Whitney

herself states, Utah’s parol evidence rule “‘exclude[s] evidence of . . . statements

offered for the purpose of varying or adding to the terms of an integrated

contract.’” 8 (Emphasis added) (quoting Ward v. Intermountain Farmers Ass’n,

907 P.2d 264, 268 (Utah 1995)). Because Whitney seeks to add an additional

term to her contract – that termination be preceded by a three-step remediation

process – the proffered additional term is barred from consideration by the parol

evidence rule. The policies themselves are not included in the record and the

contract itself includes no remediation requirement. We therefore find that

Defendants’ motion for summary judgment on this claim was properly granted.

CONCLUSION

We REVERSE the district court’s grant of summary judgment in favor of

the School Board on the ADA claim and we REVERSE the district court’s grant

of summary judgment in favor of the Defendants on the Evaluation Act and

Termination Act claims, and we REMAND for further proceedings. We AFFIRM

summary judgment in favor of the Defendants on to the breach of contract claim

and in favor of Meador on the ADA claim.

8
Whitney does not dispute that the relevant contract is integrated.

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