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UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF ARKANSAS

MATTHEW A. WENDT, )
Plaintiff, )
)
v. ) Case No. 5:20-CV-05150-TLB
)
FAYETTEVILLE SCHOOL DISTRICT )
NO. 1 OF WASHINGTON COUNTY, )
ARKANSAS, )
Defendant. )

COMPLAINT FOR BREACH OF CONTRACT

COMES NOW, the Plaintiff, Matthew A. Wendt, and in support of his Complaint against

the Defendant, Fayetteville School District No. 1 of Washington County, Arkansas, states and

alleges as follows:

INTRODUCTION

1. This action seeks damages for Breach of Contract by the Defendant Board of

Directors of the Fayetteville School District (the “District,” the “Board”, or “FPS”) of Plaintiff

Dr. Matthew Wendt’s Amended and Restated Superintendent Contract of Employment dated the

25th day of January, 2018, attached hereto as Exhibit A and incorporated herein by reference.

2. Following the termination of a short-lived, consensual relationship with a subordinate

female employee, Ms. Shae Newman, Plaintiff was notified by Chris Lawson, general counsel

for the Board, of an allegation of sexual harassment against him. However, though the School

Board has a Policy on Sexual Harassment, Policy 4180, that provides for the confidentiality of

reporting parties and parties against whom complaints are made, provides complaint, reporting

and investigation procedures as well as disciplinary action for violations of said policy, no

formal complaint was ever filed with the Board, copy of Policy 4180 is attached hereto as

Exhibit B and incorporated herein by reference.

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3. Rather than following the complaint and grievance resolution procedures set forth in

Policy 4180, on April 2, 2018, Ms. Newman’s personal attorney drafted a letter to the Board

raising allegations of sexual harassment against Plaintiff threatening to file an EEOC complaint,

and thereafter issued a press release to which Defendant responded in kind, both clearly

identifying Plaintiff in the press by name and detailing the allegations against him.

4. Though Ms. Newman raised allegations of sexual harassment, she did not, nor has she

to date, filed a formal sexual harassment complaint initiating the procedures of Policy 4180. The

Board reacted to the allegations by initiating an investigation, not by the Title IX Coordinator as

set forth in Policy 4180, but by Chris Lawson, the Board’s general counsel. As a result, there

was no formal written report generated that should have contained findings and

recommendations as required by Policy 4180.

5. Though no formal investigation report was produced, Plaintiff was advised informally

of the results of the Lawson investigation, that Lawson had failed to find conduct by Plaintiff

constituting the sexual harassment of Ms. Newman as defined in Policy 4180. Nevertheless,

after news of the allegations of sexual harassment against Plaintiff appeared in an online version

of the Arkansas Gazette, the Board, through newly retained counsel, Susan Kendall, notified

Plaintiff that it was considering disciplinary action against him for violation of Board Policy

4180 up to and including termination.

6. On May 25, 2018, as threatened in her letter to the Board dated April 2, 2018, Ms.

Newman filed a formal Charge of Discrimination based on sex against the Fayetteville Public

School District, Charge No. 493-2018-10381 with the U.S. Equal Employment Opportunity

Commission. The filing of the May 25, 2018 EEOC complaint, as set forth in the policy, should

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have terminated any disciplinary proceedings against Plaintiff under Policy 4180 given that no

formal grievance proceeding had been initiated by Ms. Newman, and as provided in Policy 4102.

7. Prior to the June 18, 2020 hearing, Plaintiff was advised, through written notice of her

attorney, that Ms. Newman would not be attending the hearing. The Board opted to proceed

with the disciplinary action in Ms. Newman’s absence leaving Plaintiff, therefore, with no

opportunity to confront his accuser who had essentially abandoned her grievance in lieu of the

EEOC complaint, the only other evidence to contest being a 6-page statement written by her and

cross-examination of Mr. Lawson as the investigator. Having previously been assured by Mr.

Lawson, however, that the claim of sexual harassment was unsubstantiated and recognizing the

futility of a hearing without the accuser present, Plaintiff waived said hearing. Thereafter, on

June 18, 2018, Defendant notified Plaintiff through phone call to his counsel that his

employment contract had been terminated by the Board.

8. Subsequent to the Board’s vote to terminate his employment contract, on August 15,

2018, it filed its detailed response to the EEOC complaint in which it “unequivocally” denied

that Ms. Newman had been discriminated against “because of her sex” under Title VII of the

Civil Rights Act of 1964. The Board just as forcefully denied the sexual harassment allegations

throughout its Position Statement denying Ms. Newman’s allegations.

9. Therefore, in voting to terminate his employment contract and unilaterally ending its

financial obligation to Plaintiff, Defendant breached Plaintiff’s contract, and Plaintiff is entitled

to damages as if said Contract remains in full force and effect.

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THE PARTIES

10. Plaintiff, Dr. Matthew Wendt, Ed.D, is a resident of the State of Kansas, and from

July 1, 2016 until June 18, 2018, was the Superintendent of Schools for the Fayetteville School

District No. 1 of Washington County, Arkansas.

11. Defendant, Fayetteville School District No. 1 of Washington County, Arkansas, is a

political subdivision of the State of Arkansas, with its offices located at 1000 West Bulldog

Boulevard, Fayetteville, Washington County, Arkansas.

JURISDICTION AND VENUE

12. This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 since the

matter in controversy exceeds the sum of $75,000 exclusive of interest and costs, and is between

citizens of different States.

13. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) in that the Western

District of Arkansas is the judicial district in which the contract between Plaintiff and Defendant

was executed.

GENERAL ALLEGATIONS

The Superintendent Contract of Employment

14. Plaintiff was employed as the Superintendent for the Fayetteville School District No.

1 of Washington County, Arkansas, pursuant to a Superintendent Contract of Employment

executed by and between the parties on the 2nd day of January, 2016 (the “Original Contract”),

for a three (3) year period beginning July 1, 2016 and ending on June 30, 2019.

15. On January 26, 2017, one year into the original three-year contract term, the parties

agreed to a one-year extension to conclude on June 30, 2020.

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16. On the 25th day of January, 2018, Plaintiff and Defendant executed an Amended and

Restated Superintendent Contract of Employment (“the Contract”), extending for the second

time the original contract term through June 30, 2021, for an annual salary of Two Hundred

Thirty-one Thousand and Eighty Dollars ($231,080.00) to be paid in twelve equal monthly

installments and for other good and valuable consideration.

Allegations of Sexual Harassment

17. Sometime in September, 2017, Plaintiff became involved in a consensual

relationship with a female subordinate, Shae Newman (hereinafter “Ms. Newman”).

18. At all times relevant to the allegations contained herein, there was no Board Policy of

the Fayetteville School District prohibiting fraternization. i.e., consensual relationships between

co-workers, or between a supervisor and a subordinate, nor was a non-fraternization term

included in Plaintiff’s Contract and, therefore, Plaintiff’s relationship with Ms. Newman

breached no express provision of his employment contract.

19. Plaintiff’s relationship with Ms. Newman ended in early 2018.

20. On or about March 14, 2018, Plaintiff was provided notice of a claim of “sexual

harassment” in violation of Fayetteville School District Policy 4180, the Fayetteville School

District Policy on Sexual Harassment, made against him by Ms. Newman through a letter from

Ms. Newman’s attorney, Suzanne Clark, to Chris Lawson, general counsel for the school board.

21. Policy 4180 defines sexual harassment as “unwelcome sexual advances, requests or

demands for sexual favors, and other verbal or physical conduct of a sexual nature.”

22. Use of the word “unwelcome” in Policy 4180, which is essentially a recitation of the

operative definition found in 29 CFR § 1604.11 as harassment on the basis of sex in employment

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under Title VII in federal law, necessarily excludes consensual or “welcome” advances in a

personal relationship.

23. Though Policy 4180 states that “[t]he District is committed to providing a work and

learning environment free from sexual harassment” and purportedly includes circumstances

including “sexual harassment when perpetrated on any employee or student by any employee or

student,” it includes under its “Definitions” in Section I, the discriminatory effects of sexual

harassment as (a) Submission to such conduct is explicitly or implicitly made a term or condition

of a student’s academic status or advancement, (b) Submission to or rejection of such conduct is

used as a basis for academic decisions affecting the student, and (c) Such conduct has the

purpose or effect of interfering with a student’s academic performance or of creating an

intimidating, hostile, or offensive learning environment.

24. Policy 4180 does not include in its “Definitions” section that conduct must be

sufficiently severe to alter the conditions of employment and create an abusive working

environment as one would reasonably expect from an employer’s sexual harassment policy

targeted to address sexual harassment of employees and not students.

25. Policy 4180 is, therefore, merely a prophylactic measure setting forth in ambiguous

terms the District’s sexual harassment policy and a grievance mechanism as is required by any

employer to deter allegations of a hostile work environment and discourage claims of vicarious

liability for the actions of an employee.

26. Section VI of Policy 4180 sets forth a Reporting Procedure requiring that any person

who believes he or she was a victim of sexual harassment to report to their immediate supervisor,

or if the complaint involves the school principal or immediate supervisor, to the newly appointed

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Title IX coordinator who was at that time, Dr. Larry Ben, Assistant Superintendent who was also

Ms. Newman’s immediate supervisor.

27. That Section VII of Policy 4180 also states that “[w]ithin ten (10) days of receipt of a

complaint, the Title IX Coordinator will review his/her findings and recommendations with the

Superintendent and make a written report to all necessary parties of the investigator’s findings

and recommendations.

28. The District failed to comply with either Sections VI or VII in this case to satisfy the

procedural due process requirements owed Plaintiff pursuant to Policy 4180.

29. The alleged sexual harassment complaint against Plaintiff, however, was reported by

private counsel retained by Ms. Newman, Suzanne Clark, to legal counsel for the Board, Chris

Lawson and not to Dr. Ben, Title IX Coordinator and Ms. Newman’s direct supervisor.

30. The relationship between Plaintiff and Ms. Newman ended amicably early in

February, 2018, but after Ms. Newman consulted with private counsel she attempted to re-

engage the relationship acting upon instruction of her counsel to “get more.”

31. On or about March 30, 2018, Plaintiff was informed by Chris Lawson without a

written report of his findings, through conversation between Mr. Lawson and Plaintiff’s retained

counsel, Elizabeth Murray, that his internal investigation had concluded due to the consensual

nature of the relationship no sexual harassment between Plaintiff and Ms. Newman had occurred.

32. Section VII of Policy 4180 also provides that “[a]ction, if warranted, against any

employee will be in compliance with all policies and laws. The Title IX Coordinator will make

extraordinary effort to protect the rights, privileges, and reputations of all employees and

students concerned.”

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33. On or about April 4, 2018, the day before Plaintiff travelled to San Antonio, Texas

for the 2018 National School Board Annual Conference, Chris Lawson personally informed

Plaintiff that following his three weeks of investigation that “there was nothing there,” and based

upon that statement, Plaintiff reasonably harbored the expectation his continued employment was

assured and the Board would continue to honor its contractual obligations.

34. On April 6, 2018, following Chris Lawson’s unequivocal refutation of the allegations

of sexual harassment against Plaintiff in response to a demand letter written by Suzanne Clark, a

story appeared in the Arkansas Gazette online edition giving details about the allegations against

Plaintiff by name, and, rather than taking the prudent course and not commenting for the article

while “respect[ing] the confidentiality of the complainant and the individual(s) against whom he

complaint has been filed” as required by Policy 4180, and thereby quashing an unsubstantiated

story, a press release from Defendant’s new legal counsel, Susan Kendall, corroborated the

existence of a sexual harassment complaint against Plaintiff while maintaining the confidentiality

of the complainant, a press release that was emailed to all District employees, thereby facilitating

the story’s publication by the Arkansas Gazette as well as being widely distributed to local and

regional television news outlets.

35. In an April 7, 2018 a second public statement in the form of an email written by

Megan Hurly, a member of the FPS Board, to the parent of an FPS student, Ms. Hurley

expressed that the she had been informed by counsel for the Board, Susan Kendall, that

Plaintiff’s employment could be terminated without financial burden on the district, suggesting a

predetermination and lack of impartiality by a member of the Board in violation of Plaintiff’s

right to due process.

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36. In light of the proclivity of Board members and their counsel to make public

statements about allegations against Plaintiff by name in violation of its obligation to maintain

confidentiality appearing in Policy 4180, for its failure to assure that said complaint was

delegated to the Title IX Coordinator, and for any investigator to issue a written report

containing including the investigator’s findings and recommendations, all in violation of Policy

4180, Defendant has unclean hands in its assertion that Plaintiff was terminated for violation of

said Policy 4180.

37. On April 8, 2018, Plaintiff was placed on administrative leave, and, despite Section

III of the FPS policy on Sexual Harassment that provides that “[t]he district will respect the

confidentiality of the complainant and the individual(s) against whom the complaint has been

filed,” outside counsel for FPS issued a press release announcing that Plaintiff, again by name,

had been placed on administrative leave due to allegations of sexual harassment.

38. On April 18, 2018, the Fayetteville School Board met in executive session to

consider the allegations of sexual harassment against Plaintiff, the summary of Chris Lawson’s

internal investigation, and potential disciplinary actions against Plaintiff up to and including

termination of employment, at which time Plaintiff was given notice of his opportunity to

address the Board regarding the allegations.

39. In a letter dated April 25, 2018 from Susan Kendall to Elizabeth Murray, Plaintiff

was notified of action taken by the Board of the Fayetteville Public Schools (“the Board”),

stating that:

The Board is considering taking a personnel action against Dr. Wendt, up to and
including termination of employment, based upon the following:

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1) Offensive conduct and derogatory communication with a female subordinate

employee (Shae Newman) in violation of the Policy of Sexual Harassment, Board
Policy 4180.
2) Offensive conduct and derogatory communication with a female subordinate
employee (Shae Newman) in violation of the Duties of the Superintendent, Board
Policy 2.1, including:
(a) To administer the school system according to the policies governing
the school operations;
(b) To implement the policies of the Board;
(c) To communicate the District’s vision and mission to staff, students,
parents, and the community; and
3) Offensive conduct and derogatory communication with a female subordinate
employee (Shae Newman) in violation of the terms of Article 3 of the Amended
and Restated Superintendent Contract of Employment including:
(a) To administer the school system according to the policies governing
the school operations;
(b) To implement the policies of the Board; and
(c) To communicate the District’s vision and mission to staff, students,
parents, and the community.

40. On May 4, 2018, Plaintiff provided documents relevant to the Boards investigation

of the allegations against him, and he was informed by letter from Susan Kendall to Elizabeth

Murray that if he requested a hearing with the Board regarding the allegations against him, said

hearing would be held as an open public meeting and advising him of the hearing process.

41. On May 15, 2018, Plaintiff was informed in a letter from Susan Kendall stating that

specific evidence in possession of the FPS Board supported allegations that he had “failed to

perform his duties and violated the Board Policies [2.1 and 4180] or Article 3 of the Contract.”

42. A subsequent meeting of the Board was scheduled by agreement of the parties for

June 18, 2020. Plaintiff having been informed of informal board communications running the

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gamut of a finding of no sexual harassment to a proposal for offering him a buyout, having been

notified that Ms. Newman would not be in attendance and therefore not subject to cross

examination, and with the assurances made by Chris Lawson and other members of the Board

that disciplinary action was unwarranted, waived a hearing.

43. On June 18, 2018, the Defendant breached Plaintiff’s contract by announcing the

termination of his employment contract following the investigation of the allegation of Plaintiff’s

violation of Policy 4180, a reason for termination not included in the terms of Plaintiff’s contract

of employment.

44. The date of the Defendant’s breach of Plaintiff’s Contract came twelve (12) days

before the Defendant became obligated to fulfill, and it therefore avoided, its financial obligation

under Article 2 that provides:

(a) upon completion of satisfactory service through June 30, 2018, the Board
shall make a non-elective employer contribution of Twenty-Five Thousand Dollars
($25,000.00) on that date, and (b) upon completion of satisfactory service in each
successive year under this Contract, the Board shall make a non-elective employer
contribution of Twenty-Five Thousand Dollars ($25,000.00) in June of each successive
year.

Superintendent Contract did not Incorporate Board Policies

45. The stated bases for termination of Plaintiff’s contract by the Defendant as set forth

in the April 25, 2018 notice to Plaintiff, were for offensive conduct and derogatory

communication with a female subordinate in violation of the Board Policy 4180 for sexual

harassment, for offensive conduct and derogatory communication with a female subordinate

employee in violation of the Board Policy 2.1 outlining Duties of the Superintendent and Article

3 of the Contract.

46. Board Policy 4180 sets forth the definition and forms of sexual harassment, reporting

and investigation procedures.

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47. Policy 4180 defines “sexual harassment” as “unwelcome sexual advances, requests

or demands for sexual favors, and other verbal or physical conduct of a sexual nature.”

48. Plaintiff and Ms. Newman engaged in a consensual relationship but there is no anti-

fraternization Board policy or language in Plaintiff’s Contract prohibiting such a relationship,

nor is there a morals clause in Plaintiff’s Contact prohibiting conduct that the Board found

socially or morally unacceptable such as may have been alleged involving Plaintiff and Ms.

Newman.

49. The internal investigation performed by Defendant’s general counsel Chris Lawson

found Plaintiff’s conduct not to be in violation of Policy 4180.

50. Statements made in a letter dated April 2, 2018 from Ms. Newman’s counsel,

Suzanne Clark, to Chris Lawson, counsel for the School Board, reiterated what Chris Lawson

had represented to Plaintiff, that “[y]ou don’t see a Title VII claim in Wendt’s abusive conduct,”

and “in your view this is not sexual harassment.”

51. Board Policy 2.1 sets forth the “Duties of the Superintendent,” and includes that

“[t]he Superintendent shall be responsible . . . for administering the school system according to

the . . . policies governing school operations.” Further, some of the Superintendent’s duties are

listed as “[i]mplementing the policies of the Board,” and “[c]ommunicating the District’s vision

and mission to staff, students, parents, and the community,” as noted in April 25, 2018 notice.

52. There is no Board policy, statute or contract language that incorporates the policies

that Plaintiff was tasked to administer, implement or communicate, specifically Policy 4180, into

his contract for employment.

53. Since Plaintiff’s alleged “offensive conduct and derogatory communication with a

female subordinate” were found by Defendant’s internal investigation not to amount to a claim

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of sexual harassment, irrespective of whether said Policy applied to him, Defendant is precluded

from claiming Plaintiff’s behavior violated Policy 4180.

54. Despite the purported allegations of sexual harassment made against Plaintiff by Ms.

Newman, by not following the reporting protocols of Policy 4180 and the related grievance

procedures contained therein, opting independently to file an EEOC complaint, and not

prosecuting her claims to the School Board during the scheduled June 18, 2018 School Board

meeting, Ms. Newman abandoned her grievance and her claim should have been dismissed by

the Board without further action.

Alleged Violation of Board Policy not Sufficient for Termination for Cause Under
Employment Contract

55. Pursuant to Article 2 of the Contract, though Plaintiff was obligated to “[e]xecute all

powers and duties in accordance with Board Policies and the laws, rules and regulations of the

State of Arkansas and its regulatory agencies, his own alleged violation of said policies could not

constitute cause for termination.

56. Under Arkansas law, a contract for a definite term may not be terminated before the

end of the term, except for cause or by mutual agreement.

57. Plaintiff’s Contract was for a definite term, ending June 30, 2021, thereby requiring

“cause” or mutual agreement for termination and Plaintiff as not agreed.

58. Since the contract was drafted and presented for Plaintiff’s signature by the

Defendant, traditional contract principles apply and any ambiguity is to be construed against the

Defendant.

59. Article 12 of the contract, entitled “Unilateral Termination,” states as follows:

“The Board may terminate this Contract for cause in conformity with the rights and obligations

set forth in Ark. Code Ann. §6-17-301,” and in accordance with integration clause of Article 14

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that “[t]his Contract contains all of the terms agreed upon by the parties with respect to the

subject matter hereof,” as the express term used by the Board as the sole basis for termination

without further financial obligation, expressio unius est exclusio alterius.

60. A.C.A. § 6-17-301(b) reads as follows:

(b) A superintendent's contract of employment with a school district may be

terminated for cause and without the school district’s having any further financial
obligation to the superintendent if:

(1) The school district has:

(A) Been placed on fiscal distress by the Division of Elementary

and Secondary Education because of:

(i) Commitments made by the superintendent of which the

school district board of directors had no notice or
knowledge; or

(ii) A material misrepresentation made by the

superintendent concerning the school district's finances that
the school district board of directors relied upon to the
detriment of the school district;

(B) Exhausted all appeals of the division’s decision regarding the

fiscal distress determination;

(2) The superintendent was provided:

(A) Notice of the reason for termination;

(B) A hearing to allow the superintendent to explain or rebut the

reasons stated in the notice; and

(C) A record of the hearing provided at the expense of the school

district; and

(3) The superintendent's contract was terminated by a majority vote of the

full school district board of directors after the hearing described in
subdivision (b)(2) of this section. [Emphasis added]

61. A plain reading of A.C.A. § 6-17-301(b), therefore, dictates that the only “cause” for

which Plaintiff’s contract could be terminated, since subparagraphs (1), (2) and (3) are joined by

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the conjunctive “and,” using its ordinary and usually accepted meaning in common language, is

solely for causing the financial distress of the district.

62. There was no language in Plaintiff’s Contract, as drafted by the Defendant, that

includes as a condition of his continued employment his compliance with School Board Policy

4180 Policy on Sexual Harassment, nor lists violation of Policy 4180 as “good cause” for the

termination of his Contract.

63. Though the “for cause” language limited to financial mismanagement is restrictive

on the Board, as the drafter Defendant is bound by the contract language it chose, and said

provision being limited to financial distress is not inconsistent with his primary duty under the

District’s Administration Rule 2.1 as ex officio financial secretary for the Board pursuant to

A.C.A. § 6-17-918(a).

64. Subsequent to the breach of Plaintiff’s employment contract, on January 23, 2020,

Defendant extended its contract with Dr. John L. Colbert as Plaintiff’s successor Superintendent,

Dr. Colbert’s “Second Amended and Restated Superintendent Contract of Employment,” said

Colbert contract is attached hereto as Exhibit C and incorporated herein by reference.

65. Defendant, using essentially the same form contract as that used for Dr. Wendt,

remedied the deficiencies to be found in Article 12 of Plaintiff’s Contract with a significantly

expanded definition of “Termination Due to Cause,” in Dr. Colbert’s Contract:

Article 12. Termination Due to Cause

This Contract shall terminate (immediately, unless otherwise noted as provided in
Article 13) upon the occurrence of one (or more) of the following:
a. The agreement of the parties;
b. The retirement of the Superintendent;
c. The death of the Superintendent;

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d. Should the Superintendent be unable to perform all of the

Superintendent’s duties by reason of disability, and said disability
exists for a period longer than the Superintendent’s accrued sick
and vacation leave, the Board may, in its discretion and after
providing reasonable notice and the opportunity for a hearing,
make a proportionate deduction from his salary. If such disability
continues and renders the Superintendent unable to perform the
essential duties of the job with or without a reasonable
accommodation in accordance with federal and state law, the
Board may, in its discretion and after providing reasonable notice
and the opportunity for a hearing, terminate this Contract.
e. By the Board for “Cause,” the existence of which shall be
determined in the sole discretion of the Board and which shall
include, but not be limited to, any of the following:
i. The Superintendent exhibits favoritism or preferences
based on a personal family or marital relationship with
a District employee or potential District employee;
ii. The Superintendent’s failure to maintain valid and
appropriate licenses, certifications or permits as
required by the laws of the State of Arkansas and the
rules and regulations of the Arkansas Department of
Education;
iii. The Superintendent’s recurring absence, other than for
illness of disability;
iv. The Superintendent’s failure to abide by the terms of
this Contract;
v. The Board reasonably believes the Superintendent has
committed an act or omission that constitutes fraud,
misappropriation, embezzlement, theft, dishonesty, or
actions of a similar nature;

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vi. The Superintendent fails or refuses to comply with

Board Policies including, but not limited to those
relating to substance abuse, sexual or other unlawful
harassment or discrimination;
vii. Neglect of duties;
viii. The arrest of the Superintendent or the filing of
criminal charges against the Superintendent during the
term of this Contract; or
ix. Conduct the Board determines is detrimental to or
reflects unfavorably on the District or its reputation,
or which constitutes cause for termination in the
Board’s reasonable discretion, it being impossible to
specifically enumerate all events, conduct, and
occurrences which would be injurious
to the District and which would constitute cause.

66. The additional express language appearing in Dr. Colbert’s Superintendent Contract

regarding inclusion of Board Policies, the licensure requirement and additional provisions as to

what is to be considered as cause for termination missing from Plaintiff’s Contract, is an

admission by the Defendant that Plaintiff’s contract was deficient, and that its termination of

Plaintiff’s Contract based on non-existent language represents a breach of its contractual

obligations to Plaintiff.

Defendant Violated Plaintiff’s Right to Due Process

67. Board Policy 4180 references Board Policies 4102 and 4540 as well as A.C.A. § 6-

17-208 as grievance policies and procedures to be followed by the Board.

68. Both Board Policy 4540, Section IV, and A.C.A. § 6-17-208(b)(2)(B) provide that

the employee who has filed the grievance, in this instance Ms. Newman, having exhausted all

other administrative remedies, would have an “adequate opportunity to present the grievance” to

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the School Board, and that “both parties shall have the opportunity to present and question

witnesses.”

69. School Board Policy 4102 provides that “should the teacher filing a grievance under

this policy elect to seek court action, the processing of the grievance under this policy should be

closed.”

70. At no time did Defendant require Ms. Newman to present and substantiate her sexual

harassment complaint to the Board or to follow any of the grievance protocols of Policy 4180.

71. Since Ms. Newman was not required to present her grievance to the Board as

anticipated by the grievance procedure, Plaintiff was denied the opportunity to confront his

accuser and adequately present a defense.

72. Since Ms. Newman refused to attend the School Board hearing scheduled for June

18, 2020, her grievance should have been deemed abandoned as set forth in Policy 4102.

73. Rather, the Board, in proceeding against Plaintiff in furtherance of termination of his

employment contract despite the absence of the complainant, shifted the burden of the grievance

procedures to him to disprove the allegations of sexual harassment in violation of his due process

rights.

74. The Board, acting out of confusion over the issue of grievance procedures involving

a school superintendent since superintendents themselves act as arbiters of the grievance

procedures, denied Plaintiff any meaningful procedural rights.

Defendant is Precluded from Justifying its Termination of Plaintiff’s Contract for Sexual
Harassment by Judicial Estoppel and the Doctrine of Inconsistent Positions

75. On May 25, 2018, while negotiations between Plaintiff and the Defendant were

ongoing, Ms. Newman, using her own name, filed a sexual harassment claim against the FPS and

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the FPS Board with the U.S. Equal Employment Opportunity Commission (“EEOC”), Claim No.

493-2018-01381 based on allegations of sexual harassment of her by Plaintiff.

76. 29 C.F.R § 1604.11(a), that provides operative language for enforcement by the

EEOC of Title VII of the Civil Rights act of 1964, in language virtually identical to that the

Board incorporated into Policy 4180, defines “Sexual harassment” as follows:

(a) Harassment on the basis of sex is a violation of section 703 of

title VII. Unwelcome sexual advances, requests for sexual favors,
and other verbal or physical conduct of a sexual nature constitute
sexual harassment when (1) submission to such conduct is made
either explicitly or implicitly a term or condition of an individual's
employment, (2) submission to or rejection of such conduct by an
individual is used as the basis for employment decisions affecting
such individual, or (3) such conduct has the purpose or effect of
unreasonably interfering with an individual's work performance or
creating an intimidating, hostile, or offensive working environment.
[Emphasis added]

77. As Title VII is interpreted by the U.S. Supreme Court, “[t]he gravamen of any sexual

harassment claim is that the alleged sexual advances were ‘unwelcome.’” Meritor Savings Bank

v. Vinson, 477 U.S. 57 (1986).

78. Likewise, Policy 4180 defines “sexual harassment” as “unwelcome sexual advances,

requests or demands for sexual favors, and other verbal or physical conduct of a sexual nature.”

79. On June 18, 2018, the Defendant voted to terminate Plaintiff’s Contract of

Employment for violation of Policy 4180 as a consequence of the same allegations of sexual

harassment as were brought by Ms. Newman in the EEOC complainant.

80. On July 11, 2018, Ms. Newman, filing as “Jane Doe, Plaintiff,” filed a Complaint in

the Circuit Court of Washington County, Arkansas, Case No. 72CV-18-1805, seeking a

declaratory judgment of the Court enjoining Defendant from releasing her employment records

and records produced in response to numerous FOIA requests following Plaintiff’s termination

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for purported violation of Policy 4180, for the purpose of protecting her identity from public

exposure.

81. In Paragraph 4 of her Complaint, Jane Doe alleged that as an FPS employee, “she

was being sexually harassed by the FPS Superintendent.”

82. In Paragraph 24 of her Complaint, Jane Doe alleged the records sought to be

protected dealt with “her role as the victim of sexual harassment.”

83. On July 23, 2018, Defendant, as the Defendant also in Washington County Case No.

72CV-18-1805, filed its Answer to the Jane Doe Complaint.

84. In Paragraph 4 of the FPS Answer, it states that “FPS denies that Plaintiff was

sexually harassed,” without reference to any specific definition of the term “sexual harassment”

as established by EEOC regulations or specific Board policy.

85. In Paragraph 24 of the FPS Answer, it stated that “FPS denies that Plaintiff was the

victim of sexual harassment,” without reference to any specific definition of the term “sexual

harassment” as established by EEOC regulations or specific Board policy.

86. On August 15, 2018, Defendant responded to the claimant’s EEOC complaint,

consistent with the results of its own internal investigation applicable here, stating that “[w]ithout

question, the factual evidence submitted by the District confirms that the Charging Party . . . was

not sexually harassed,” without reference to any specific definition of the term “sexual harassed”

as established by EEOC regulations or specific Board policy.

87. Further, in response to the EEOC complaint, Defendant argued that “[a]s will be

clear from the evidence below, the Charging Party entered into a consensual sexual relationship

with the Superintendent of the District, the Charging Party and the Superintendent used explicit

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language in their conversations, the Charging Party filed no complaint of sexual harassment in

accordance with the District’s policies.”

88. On September 28, 2018, the EEOC, relying in part upon the defense presented by

FPS, dismissed the complainant’s Complaint, stating that “[b]ased upon its investigation, the

EEOC is unable to conclude that the information obtained establishes violations of the statutes.”

89. In finding no sexual harassment under Title VII, the EEOC necessarily considered all

of the same evidence Defendant considered in making its decision to terminate Plaintiff’s

employment contract since “EEOC guidelines emphasize that the trier of fact must determine the

existence of sexual harassment in light of the ‘record as a whole’ and ‘the totality of the

circumstances, such as the nature of the sexual advances and the context in which the alleged

incidents occurred.’” Meritor, supra at 69.

90. Defendant FPS has purposefully availed itself of the legal position of denying that

Ms. Newman, as the EEOC complainant, a.k.a., Jane Doe, was the victim of sexually harassment

multiple times in two separate litigations, that of the EEOC Complaint and the Washington

County Complaint, a position that wholly contradicts its purported “cause” for terminating

Plaintiff’s Contract for Employment.

91. In a previous iteration of this cause of action, Washington County Circuit Court Case

No. 72CV-18-2628, FPS, as the Defendant in that case, filed a Reply to Plaintiff’s Response to

the Motion to Dismiss in which it stated its legal position that “Plaintiff’s conduct in the context

of all other evidence of the relationship did not amount to Title VII sexual harassment” and that

“the District did, and still does, take the position the Newman’s overarching allegation that

Plaintiff sexually harassed her under the standards of Title VII was false.”

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92. However, FPS also took the inexplicable position in the Washington County case

that while Plaintiff’s behavior toward Ms. Newman did not meet the definition of sexual

harassment under Title VII, his behavior was sufficient for the Board in its discretion to

determine that he violated the Board’s sexual harassment policy.

93. In said Response, the Defendant Board listed four (4) behavioral offenses that it

claims were engaged in by Plaintiff by which it could plausibly deny that he sexually harassed

Ms. Newman in defending her EEOC claim yet justified terminating his employment contract for

violation of its sexual harassment policy: (1) Plaintiff engaged in a sexual relationship with a

subordinate employee; (2) Plaintiff engaged in a sexual relationship with a female subordinate

employee; (3) Plaintiff used explicit language to a subordinate female employee; and (4) Plaintiff

used derogatory and sexually explicit to a language to a subordinate female employee.

94. In defense of the EEOC complaint, however, the District argued as mitigating factors

that Ms. Newman and Plaintiff had entered into a consensual relationship and that both had used

explicit language in their conversations.

95. As to elements 1 and 2, there is no FPS Board Policy prohibiting fraternization,

Policy 4180 makes no mention of fraternization as an element of sexual harassment, and, in fact,

a corollary of inclusion of the word “unwelcome” in Policy 4180 allows for the inference that

Policy 4180 allows for the possibility of “welcome” sexual advances that may result in a

consensual relationship and fraternization with other employees and, at least as it regards the

superintendent, all of whom are subordinate.

96. As to elements 3 and 4, “pervasive use of derogatory and insulting terms relating to

women generally and addressed to female employees personally may serve as evidence of a

hostile environment,” Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959 (8th Cir.

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1993), citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990), a case

evaluating a federal sexual harassment claim.

97. A consensual relationship between Plaintiff and a female subordinate is not, in and of

itself, a violation of Policy 4180.

98. While an employer is free to draft harassment policies more stringent than Title VII,

no meaningful distinction can be made between “sexual harassment” in either the context of

quid-pro-quo harassment or the creation of a hostile work environment as defined either by 28

C.F.R. § 1604.11(a) or the terminology used by the District in Policy 4180.

99. Plaintiff’s employment contract was terminated by the Board due to his consensual

relationship with a subordinate, female employee that while it may have offended the moral

sensibilities of a majority of the Board members, it violated none of the terms of his employment

contract, or as claimed by the Board in its aforementioned Response, “Plaintiff’s conduct,

irrespective of the claims of Newman, warrants a finding that he violated Policy 4180.”

100. Arkansas law recognizes a defense of “judicial estoppel,” which is “a familiar

principle of law that one is not, as a rule, allowed to avail himself of inconsistent positions in a

litigation concerning the same subject matter,” and “a party cannot take inconsistent positions

and play fast and loose with the court.” Dupwe v. Wallace, 355 Ark. 521, 140 S.W.2d 464, 470

(2004).

101. A legal theory closely related to judicial estoppel is the “doctrine against

inconsistent positions” which is “a form of estoppel that prevents an individual from asserting

claims that are inconsistent with the individual’s previous position,” but is “much broader that

judicial estoppel, which prohibits a party from manipulating the courts through inconsistent

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positions to gain an advantage” in that it also “may apply to positions taken outside litigation.”

Jackson v. Smiley Sawmill, LLC., 2019 Ark.App. 235, 576 S.W.3d 43, 45 (2019).

102. By formally denying that Ms. Newman was sexually harassed by Plaintiff in both

defenses of the EEOC complaint and the Washington County case, judicial estoppel and the

doctrine of inconsistent positions preclude Defendant from maintaining a defense to Plaintiff’s

claim of breach of contract that he was terminated due to his alleged violation of FPS policies

against sexual harassment.

103. There is no Board Policy prohibiting consensual relationships between employees,

i.e., a non-fraternization policy, nor is any such language contained in Plaintiff’s employment

contract.

104. As the drafter of the Contract, the Board could easily have incorporated into

Plaintiff’s employment contract a non-fraternization policy, and given the concerns belatedly

expressed by the Board in the aforementioned Response in the Washington County case that

“[w]ill a lover receive a favorable evaluation because she performed well or because of the

relationship? Will a lover’s quarrel persuade Plaintiff to give his partner an unfavorable

evaluation or move her to a new office?” or that “Plaintiff cannot maintain that he can effectively

lead a substantial organization like the District when he engages in sexual relationships with his

employees,” they certainly should have.

105. Likewise, as is often the natural course of a consensual relationship, should a

superintendent marry a subordinate employee, there is neither a non-spouse nor anti-nepotism

policy in his employment contract, although in the Colbert contract mentioned in Paragraph 55

above, the District subsequently added the following as “cause” for termination in Article 12.e.i.:

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“The Superintendent exhibits favoritism or preferences based on a personal family or marital

relationship with a District employee or potential District employee;”

106. The fact of a consensual relationship between Plaintiff and Ms. Newman

relationship was not a violation of Board Policy 4180 per se, nor was Plaintiff notified by the

Board that the mere fact of the relationship was a basis the Board considered for termination of

his Contract included in the April 25, 2018 notice.

107. Defendant, therefore, cannot legally support and was without cause for its

termination of Plaintiff’s Contract for Employment.

108. Defendant, having twice previously denied its purported basis for cause in related

litigation, was, therefore, without cause as is required by A.C.A. § 6-17-301(b) to terminate

Plaintiff’s Contract for Employment without further financial obligation and is in breach of said

contract.

CLAIM FOR RELIEF

BREACH OF CONTRACT

109. Plaintiff realleges and incorporates the allegations contained in Paragraphs 1

through 108 as if set forth in full herein.

110. As of June 18, 2018, the date Defendant terminated his Contract of Employment,

Plaintiff had completed satisfactory service up to and including that date and stood ready, willing

and able to complete the natural term of this employment.

111. The allegations against Plaintiff as set forth in the April 25, 2018 letter from Susan

Kendall to Elizabeth Murray were insufficient to establish a claim of sexual harassment as that

term is defined in Board Policy 4180.

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112. The allegations against Plaintiff as set forth in the April 25, 2018 letter from Susan

Kendall to Elizabeth Murray are insufficient for unilateral termination of Plaintiff’s Contract for

cause as set forth in Article 12 of Plaintiff’s Contract dated January 25, 2018.

113. Board policies, including Policy 4180, are not incorporated into Plaintiff’s Contract.

114. Defendant, having previously denied that Plaintiff engaged in behavior that

consisted of a violation of Board Policy 4180 successfully in two prior legal proceedings, cannot

now allege Plaintiff’s sexual harassment of Ms. Newman as the cause of his termination, by both

judicial estoppel and the doctrine of inconsistent positions.

115. Defendant’s termination of Plaintiff’s employment Contract for an alleged violation

of Board Policy 4180 was insufficient grounds for termination for cause without further financial

obligation to the school district.

116. The Board failed to abide by its obligation under Section III of the Board Policy

4180 in keeping Plaintiff’s name, against whom a sexual harassment complaint had been filed,

confidential.

117. The Board failed to insist that Ms. Newman comply with the Complaint and

Reporting Procedures, necessary to establish an adequate sexual harassment grievance

procedure, in violation of the grievance procedure of Sections V and VI of Policy 4180.

118. The Board failed to assign the complaint of sexual harassment by Ms. Newman to

the Title IX Coordinator as required under Section VI of Policy 4180.

119. Given that the Board failed to comply with the Reporting Procedure of Section VI

of Policy 4180, likewise it failed to follow the Investigative Procedure of Section VII that

requires an investigation and complaint to be handled as a personnel matter with adequate

protections of privacy to the accused, a thorough investigation of the compliant, and a written

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report within ten (10) days of the filing of the compliant with the investigator’s findings and

recommendations.

120. The Board violated Section VIII of Policy 4180 by demanding Plaintiff’s

disciplinary hearing be held in public, disregarding its own reference to A.C.A. § 6-17-208 that

said hearing shall be open or closed at the discretion of the employee.

121. Rather than following the complaint, reporting, investigation and disciplinary

procedures of Board Policy 4180, the Board retained outside counsel, Susan Kendall, as a

mercenary to summarily terminate Plaintiff’s contract under the pretext of official Board action

for a violation of Board Policy 4180 contrary to the representations made to Plaintiff by Chris

Lawson, the Board’s general counsel, and its legal positions taken in previous litigation.

122. June 18, 2018, the date Defendant terminated Plaintiff’s Contract of Employment,

was twelve (12) days before FPS’s obligation under Article 2 of said contract accrued to

Plaintiff’s benefit, in that: “upon completion of satisfactory service through June 30, 2018, the

Board shall make a non-elective employer contribution of Twenty-five Thousand Dollars

($25,000.00) on that date,” thereby relieving the Board from their financial obligation to

Plaintiff.

123. Defendant is in material breach of Plaintiff’s Amended and Restated Superintendent

Contract of Employment dated the 25th day of January, 2018.

124. Plaintiff has been damaged in the amount of his annual salary of $231,080, to be

paid in equal monthly installments of $19.256.67 from the date Defendant breached his

employment contract on June 18, 2018, through the natural termination date of said contract on

June 30, 2021, for a total of $693,240.12 plus $7,702.68 for the remainder of June, 2018 for a

total of $700,942.80, as well as for any other compensation due him under Article 2 including

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$25,000 annual employer contributions to his retirement account for the years 2019, 2020 and

2021, in the amount of $75,000, plus interest and dividends of a minimum of $6,161.60, a

$15,000 Stay Put Incentive Contribution from Article 13, for a total of $797,104.40, plus life

insurance and long term disability benefits, subsidized automobile usage of $12,600, employer

contributions to Arkansas Teacher Retirement on his behalf in the amount of $20,797.20,

medical, dental and vision insurance premiums for the term of the contract of $21,600,

reimbursement for accrued but unused sick leave and accrued vacation pay in the amount of

$77,026.68 for a total amount of damages of $929,128.28 he was due under his Contract for

Employment executed by and between the parties the 25th day of January, 2018 from the date of

his termination until the natural termination date of his employment contract.

125. Pursuant to A.C.A. § 16-22-308, Plaintiff is entitled to an award of reasonable

attorney’s fees.

126. Plaintiff hereby requests a jury trial.

WHEREFORE, Plaintiff, Matthew A. Wendt, prays for Judgment against Defendant,

Fayetteville School District No. 1, for breach of his contract for employment with Defendant in

an amount to be determined by the trier of fact, for pre- and post-judgment interest, for attorney’s

fees and costs, and for such other and further relief the Court deems just and proper.

Respectfully submitted,

STORY LAW FIRM, PLL

by /s/ Travis W. Story .
Travis W. Story (AR Bar 2008274)
by /s/ Gregory F. Payne .
Gregory F. Payne (AR Bar 2017008)
3608 Steele Blvd, Suite 105
Fayetteville, AR 72703
(479) 443-3700 Fax (833) 245-0107
travis@storylawfirm.com
greg@storylawfirm.com

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