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March 12, 2026 Get Citation Alerts Download PDF Add Note

Benton School District; Lori Bacon, in Her Individual and Official Capacity; And Lita Gattis, in Her Individual and Official Capacity v. Brandi Greer

Supreme Court of Arkansas

• Citations: 2026 Ark. 53

• Docket Number: Unknown

• Opinion

• Authorities (32)

• Cited By (1)

• Summaries (0)

• Similar Cases (3K)

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Combined Opinion

Cite as 2026 Ark. 53
SUPREME COURT OF ARKANSAS
No. CV-25-11

Opinion Delivered: March 12, 2026
BENTON SCHOOL DISTRICT; LORI
BACON, IN HER INDIVIDUAL AND APPEAL FROM THE SALINE
OFFICIAL CAPACITY; AND LITA COUNTY CIRCUIT COURT
GATTIS, IN HER INDIVIDUAL AND [NO. 63CV-20-522]
OFFICIAL CAPACITY
APPELLANTS HONORABLE BRENT DILLON
HOUSTON, JUDGE

V. REVERSED AND REMANDED.

BRANDI GREER
APPELLEE

SHAWN A. WOMACK, Associate Justice

This case arises from Brandi Greer’s claim that the Benton School District, Lori

Bacon, and Lita Gattis unlawfully retaliated against her and prevented her from working as

a substitute teacher in the district after she filed an ethics complaint against a teacher in the

district concerning the treatment of her child. The circuit court granted summary judgment

to Greer on her retaliation claims and the jury awarded her $7,000 in damages.1 The court

also entered a permanent injunction barring the District from prohibiting her from serving

as a substitute. Because Greer’s claims fail as a matter of law, we reverse the circuit court’s

summary-judgment ruling and enter judgment for the appellants. As a result, we likewise

1
Greers retaliation claims are brought under 29 U.S.C. § 794, 42 U.S.C. § 1983, and
Ark. Code Ann. § 16-123-105.
reverse the jury’s award of damages and the circuit court’s order granting a permanent

injunction.

I. Facts and Procedural Background

The appellants in this case are the Benton School District, Lori Bacon, and Lita Gattis.

Bacon is the former principal of the Angie Grant Elementary School. Gattis is the former

assistant superintendent of the District. The appellants were sued by Brandi Greer, a

substitute teacher employed by Kelly Services, Inc. The District contracted with Kelly

Services, Inc., for the placement of substitute teachers in the school district.

In 2017 and 2018, Greer’s child attended the Angie Grant Elementary School. Greer

frequently served as a substitute teacher there during this time period. In the fall of 2017, a

dispute arose between Greer and her child’s teacher, Holly Fite. Greer then filed an ethics

complaint against Fite in November of 2017 with the Arkansas Department of Education’s

Professional Licensure Standards Board (State Board), alleging that Ms. Fite had violated the

Code of Ethics for Arkansas Educators due to her treatment of the Appellee’s child. In

February of 2018, the District informed Kelly Services, Inc., that Greer could not substitute

at Angie Grant until the investigation was complete. After further discussions with Greer,

the District ultimately decided that it was best that Greer not substitute at any school within

the District. This did not prevent Greer from substituting for any of the other schools

within Saline County that Kelly Services, Inc., contracted with. In 2018, the State Board

found that Greer’s complaint was baseless.

In June 2020, Greer filed a lawsuit against her employer, Kelly Services, Inc., Benton

School District and Lori Bacon. She claimed discrimination and retaliation in violation of

2
the federal Rehabilitation Act of 1973, the First Amendment of the U.S. Constitution, and

article 2, section 6 of the Arkansas Constitution. Kelly Services, Inc., was dismissed from

the case without prejudice the next month. In August 2020, the District and Bacon filed

their joint response to the complaint. In response, Greer filed an amended complaint,

adding Lita Gattis as a defendant.

In her amended complaint, Greer alleged that (1) the District violated § 504 of the

Rehabilitation Act by retaliating against her for requesting accommodations for her child

and for complaining about discrimination against her child; and (2) Ms. Bacon and Ms.

Gattis, both in their individual and official capacities, violated 42 U.S.C. § 1983 and the

Arkansas Civil Rights Act by retaliating against her for exercising her First Amendment

rights. The appellants filed their motion to dismiss the case, which was denied by the circuit

court in December 2020.

In July 2021, Greer filed a partial motion for summary judgment on liability. The

appellants filed a response to the motion as well as a cross-motion for summary judgment,

arguing that (1) the District was entitled to summary judgment on the appellee’s § 504 claim

because Greer was not the District’s employee and she had not suffered an adverse

employment action; and (2) Ms. Bacon and Ms. Gattis were entitled to summary judgment

on the § 1983 and ACRA claims because: (a) Greer did not engage in constitutionally

protected speech because she did not speak on a matter of public concern; (b) Ms. Bacon

and Ms. Gattis were entitled to qualified immunity on the individual-capacity claims; (c)

Greer’s rights were not violated due to the policy, custom, or practice of the District, thus

3
defeating the official-capacity claims; (d) Greer did not suffer an adverse employment action;

and (e) Greer failed to mitigate her damages.

In November 2021, the circuit court granted Greer’s partial motion for summary

judgment against the District, Lori Bacon, and Lita Gattis in both their official and individual

capacities and granting in part and denying in part the defendants’ motion for summary

judgment with respect to qualified immunity of separate defendants Lori Bacon and Lita

Gattis. The appellants filed an interlocutory appeal from this order, arguing that the circuit

court erred in ruling that Ms. Bacon and Ms. Gattis were only immune from liability above

their insurance limits and not immune from suit. In an opinion dated November 9, 2023,

this court affirmed in part and remanded in part, holding that Ark. Code Ann. § 21-9-301

(Repl. 2022), which states that certain government officials are immune from suit except to

the extent that they are covered by liability insurance, applied to ACRA claims but not to

§ 1983 claims.

On remand, the circuit court entered an order that, in effect, dismissed the § 1983

individual-capacity claims against Ms. Bacon and Ms. Gattis on qualified-immunity grounds.

The court also reaffirmed its ruling that both are immune from liability on the ACRA

individual-capacity claims except to the extent of any applicable insurance coverage.

As noted above, in November of 2021 the circuit court had granted summary

judgment in Greer’s favor on the issue of liability on her Rehabilitation Act §504 claims

against the District, her §1983 official capacity claims against Bacon and Gattis (which the

circuit court found were claims against the District), and her individual capacity ACRA

claims against Bacon and Gattis. A jury trial was held on the issue of damages for these

4
claims on August 27, 2024.2 Over the appellants’ objection, the circuit court ruled that the

jury could consider the issue of punitive damages. The jury returned a verdict awarding

$3,500 to Greer in compensatory damages and $3,500 in punitive damages.

On September 6, 2024, Greer filed a motion for injunctive relief, arguing that the

District should be permanently enjoined from preventing her from serving as a substitute

teacher within the District. The appellants filed their response on September 13, 2024,

arguing that cases involving the loss of employment do not impart the kind of irreparable

harm necessary to justify injunctive relief because a loss of employment can be adequately

compensated by money damages. On September 26, 2024, the circuit court entered its final

order and judgment, incorporating the jury award of damages and granting the Greer’s

motion for a permanent injunction. The appellants now appeal the order granting summary

judgment, the jury award of damages, and the order granting a permanent injunction. 3

II. Standard of Review

The law is well settled regarding the standard of review used by this court in

reviewing a grant of summary judgment. Indeed, our law is clear that summary judgment

is to be granted only when there are no genuine issues of material fact to be litigated, and

2
The jury instructions provided: “Defendants have violated Ms. Greer’s right not to
be retaliated against under the Arkansas Civil Rights Act and the Arkansas Constitution,
which forbid retaliation against citizens for exercising speech rights and the right to petition
the government. Thus, Defendants have violated Ms. Greer’s right not to be retaliated
against for opposing disability discrimination, a protected activity under the Rehabilitation
Act.”
3
Brandi Greer did not cross-appeal any of the rulings made by the circuit court.

5
the movant is entitled to judgment as a matter of law.4 When parties file cross-motions for

summary judgment, which is what happened here, they agree that there are no disputes as

to the facts of the case and that summary judgment is an appropriate means of resolving the

dispute.5 Thus, we simply determine whether Brandi Greer or, alternatively, the appellants

were entitled to judgment as a matter of law. 6 As always, we review summary judgment

de novo.7

III. Discussion

A. The Circuit Court Erred in Granting Summary Judgment on Greer’s Federal
Rehabilitation Act Claim

Greer alleges that the District retaliated against her (i.e., prohibited her from serving

as a substitute teacher), in violation of § 504 of the Rehabilitation Act, after she complained

about disability-related discrimination involving her child. Greer’s § 504 retaliation theory

fails at the threshold. The claim she presses is an employment-retaliation claim, and

Congress has made plain that such claims under § 504 are governed by the standards

applicable to Title I of the Americans with Disabilities Act.8 Those standards presuppose an

4
See Ark. R. Civ. P. 56(c)(2); see also Boyle Ventures, LLC v. City of Fayetteville, 2025
Ark. 71, at 4, 711 S.W.3d 280, 283; Cherokee Nation Bus., LLC v. Gulfside Casino P’ship,
2023 Ark. 153, at 4, 676 S.W.3d 368, 371.
5
Cherokee Nation Bus., LLC, 2023 Ark. 153, at 5, 676 S.W.3d at 371–72.
6
Id. at 5, 676 S.W.3d at 371.
7
Corbitt v. Ark. State Univ., 2024 Ark. 44, at 3, 685 S.W.3d 901, 903; Cherokee Nation
Bus., LLC, 2023 Ark. 153, at 5, 676 S.W.3d at 372.
8
We assume without deciding that Congress’s decision to incorporate these Title I
ADA standards means it has decided to incorporate its claims as well. But that threshold
issue is far from clear.

6
employer–employee relationship. Because no such relationship existed here between Greer

and the District, the claim cannot proceed.

Section 504(a) broadly prohibits disability-based discrimination in federally funded

programs.9 But Congress drew a critical distinction when the alleged discrimination is

employment-based, as is the case here. Section 504(d) provides that “[t]he standards used

to determine whether this section has been violated in a complaint alleging employment

discrimination . . . shall be the standards applied under title I of the Americans with

Disabilities Act.”10 Title I, in turn, regulates discrimination by employers against

employees.11 By expressly incorporating Title I’s standards, Congress tethered § 504

employment claims—including retaliation claims arising from employment—to the same

threshold requirement: an employment relationship between the plaintiff and the defendant.

If that relationship is absent, the claim fails at the outset.

Federal courts have repeatedly treated the ADA and the Rehabilitation Act as

materially alike in this respect.12 Because Title I of the ADA protects employees—not

9
“No otherwise qualified individual with a disability in the United States . . . shall,
solely by reason of her or his disability, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance[.]” 29 U.S.C. § 794 (a).
10
“The standards used to determine whether this section has been violated in a
complaint alleging employment discrimination under this section shall be the standards applied
under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and
the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12201 to 12204 and 12210), as such sections relate to employment.” 29
U.S.C. § 794 (d).
11
See 42 U.S.C. § 12112 (a).

7
independent contractors or other nonemployees—courts applying § 504(d) have required

the same employment relationship.13 The Eighth Circuit’s decision in Wojewski v. Rapid

City Regional Hospital, Inc., 450 F.3d 338 (8th Cir. 2006) is directly on point. There, a

physician whose hospital privileges were revoked sued under both Title I of the ADA and

the Rehabilitation Act. The court held that his claims failed because he was not an employee

but an independent contractor. Emphasizing the parallel structure of the statutes, the court

concluded that, “[g]iven the similarity between Title I and the Rehabilitation Act, absent

authority to the contrary, we construe both to apply to an employee-employer relationship”

and declined to extend coverage to independent contractors. 14 Other courts have reached

the same conclusion, reasoning that § 504’s incorporation of ADA employment standards

necessarily imports Title I’s employee-status requirement.15

Greer urges a broader reading and points to decisions from other circuits that have

allowed certain nonemployees to pursue § 504 discrimination claims.16 But that approach

cannot be squared with the statute’s text. Section 504(d) does not merely suggest that ADA

12
The Eighth Circuit Court of Appeals has explained that the same standards that
apply to the Americans with Disabilities Act of 1990 (hereinafter, “ADA”) are to be used
when analyzing claims under § 504. See Hill v. Walker, 737 F.3d 1209 (8th Cir. 2013);
Wojewski v. Rapid City Reg’l Hosp., Inc., 450 F.3d 338 (8th Cir. 2006).
13
Wojewski, 450 F.3d at 344–45.
14
Id. at 345.
15
See Hiler v. Brown, 177 F.3d 542 (6th Cir. 1999).
16
The circuit court relied on Flynn v. Distinctive Home Care, Inc., 812 F.3d 422 (5th
Cir. 2016) in making its decision on the Rehabilitation Act retaliation claim below. We
note that Flynn didn’t involve a retaliation claim under the Act. Instead, the claim there
was purely a discrimination claim.

8
principles may be informative; it commands that the standards used to determine violations

in employment-discrimination complaints “shall be” those applied under Title I. Congress

thus made a deliberate choice to channel § 504 employment claims through the ADA’s

employment framework. And that framework regulates discrimination by employers against

employees. Had Congress wished to extend § 504’s employment-retaliation protections to

independent contractors or other nonemployees, it could have said so. It did not.

The undisputed record confirms that Greer was not the District’s employee. She

was hired, paid, and managed by Kelly Services, Inc., a third-party staffing company that

supplied substitute teachers to the District. Greer applied to Kelly Services, interviewed with

that company, passed its background check, and received assignments through its system.

She could accept substitute assignments in multiple districts served by Kelly Services and

was paid solely by that company. The circuit court expressly found that Greer was an

employee of Kelly Services—not of the District. No party disputes that finding.

Even so, the circuit court allowed Greer’s § 504 employment-retaliation claim to

proceed against the District. That ruling cannot be reconciled with § 504(d)’s text or with

our on-point federal precedent. Because § 504 employment claims incorporate Title I

standards, and because Title I requires an employer–employee relationship between the

plaintiff and the defendant, Greer cannot maintain an employment-retaliation claim against

a non-employer. The circuit court therefore erred in granting summary judgment in her

favor on this theory. We reverse and enter judgment for the appellants.

B. Section 1983 and ACRA Claims

9
Next, we turn to Greer’s federal and Arkansas Civil Rights Act Claims. On remand,

the circuit court entered an order that, in effect, dismissed the federal § 1983 individual-

capacity claims against Ms. Bacon and Ms. Gattis on qualified-immunity grounds.17 The

court also reaffirmed its ruling that both are immune from liability on the ACRA individual-

capacity claims except to the extent of any applicable insurance coverage. What remains,

then, are (1) the §1983 and ACRA official capacity claims against the District and (2) the

ACRA individual capacity claims against Bacon and Gattis.

i. The circuit court erred in granting summary judgment in favor of Greer on her § 1983 and
ACRA official-capacity claims

Section 1983 creates a private cause of action against a person acting under color of

state law who deprives another of rights secured by the Constitution or federal law. 18 It

does not create substantive rights; it provides a vehicle for enforcing rights found elsewhere.

To prevail, a plaintiff must show that a state actor violated a right guaranteed by the U.S.

Constitution or a federal statute.19

The Arkansas Civil Rights Act operates in parallel. It authorizes suits for violations

of rights secured by the Arkansas Constitution, and courts interpret it in light of federal §

17
Greer did not file a cross-appeal challenging the dismissal of her federal §1983
individual capacity claims and so that ruling is not before us.
18
See 42 U.S.C. § 1983.
19
See, e.g., Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999).

10
1983 precedent.20 Thus, the same defects that defeat Greer’s official-capacity § 1983 claim

defeat her official-capacity ACRA claim as well.

Greer sued District officials in their official capacities. Such claims are, in substance,

claims against the District itself. Official-capacity suits “generally represent only another

way of pleading an action against an entity of which an officer is an agent.”21 A

governmental entity, however, is not liable under § 1983 or the ACRA on a respondeat-

superior theory.22 Liability attaches only when the alleged constitutional violation was

caused by an official policy, custom, or usage of the entity.23

A custom or usage, for purposes of § 1983 or the ACRA, is demonstrated by (1) a

continuing, widespread, and persistent pattern of unconstitutional conduct by the

government entity’s employees; (2) deliberate indifference to or tacit authorization of such

conduct by the governmental entity’s policy-making officials after notice to the officials of

that misconduct; (3) the plaintiff’s injury by acts pursuant to the governmental entity’s

custom, i.e., proof that the custom was the moving force behind the constitutional

violation.24 This court has recognized that isolated incidents of misconduct by government

20
Ark. Code Ann. § 16-123-105 (a) (Repl. 2016); Harmon v. Payne, 2020 Ark. 17,
592 S.W.3d 619.
21
Kentucky v. Graham, 473 U.S. 159, 165–66 (1985); Hafer v. Melo, 502 U.S. 21, 25
(1991).
22
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
23
Repking v. Lokey, 2010 Ark. at 6; 377 S.W.3d at 217 (quoting Ware v. Jackson
County, Mo., 150 F.3d 873 (8th Cir. 1998)).
24
Id.

11
employees are insufficient to establish governmental policy or custom.25 Local governments

are not liable simply because an employee acts in a way that deprives the constitutional rights

of another. Local governments can be liable under § 1983 or the ACRA only when their

official policies and customs cause their employees to violate another person’s constitutional

rights.26

Greer neither pled nor proved the existence of any District policy or custom that

caused a constitutional deprivation. She identified no written policy excluding substitutes

for filing complaints and offered no evidence of a widespread pattern of similar conduct.

Nor did she show that a final policymaker caused or ratified the alleged actions. Under

Arkansas law, the school board—not individual administrators—is the District’s final

policymaker.27 The record contains no allegation or proof that the Board authorized,

directed, or even knew of the decision at issue.

The circuit court nonetheless imposed official-capacity liability based solely on the

conduct of District employees. That is precisely what Monell v. Department of Social Services,

436 U.S. 658, 694 (1978) forbids. Because Greer failed to establish that any District policy,

custom, or final-policymaker decision caused a constitutional violation, summary judgment

in her favor on the § 1983 and ACRA official-capacity claims was error. We reverse and

enter judgment for the appellants.

25
Id.
26
See City of St. Louis v. Praprotnik, 485 U.S. 112 (1988).
27
Ark. Code Ann. § 6-13-620 (Repl. 2010).

12
ii. The circuit court erred in granting summary judgment in favor of Greer on her individual- capacity
ACRA claim

Greer’s individual-capacity claim fails under the Arkansas Civil Rights Act because

she did not establish the elements of a First Amendment retaliation claim. The ACRA

provides a cause of action for deprivations of rights secured by the Arkansas Constitution,

and courts construing the statute are guided by federal § 1983 precedent.28

Generally, to prevail on a free-speech retaliation claim, a plaintiff must show that (1)

she engaged in constitutionally protected speech; (2) the defendant took an adverse action

that would deter a person of ordinary firmness from exercising that right; and (3) the

protected speech was a substantial or motivating factor in the adverse action.29 When the

alleged retaliation arises in a government employment or contractor relationship, however,

the court must first determine whether the speech is constitutionally protected under the

Pickering-Connick framework.

Put simply, in government-employment and contractor cases, the Pickering-Connick

inquiry determines whether the plaintiff engaged in constitutionally protected speech at all;

only if that threshold is met does the court proceed to the ordinary retaliation elements.

Government contractors, like employees, may bring First Amendment retaliation

claims against the government.30 But such claims require the plaintiff to show: (1) she was

28
Ark. Code Ann. § 16-123-105 (a), (c) (Repl. 2016); see also Smith v. Britt, 363 Ark.
126, 132, 211 S.W.3d 485, 490 (2005).
29
Bennie v. Munn, 822 F.3d 392, 397 (8th Cir. 2016); Naucke v. City of Park Hills, 284
F.3d 923, 927 (8th Cir. 2002).

13
speaking as a private citizen, rather than pursuant to her official duties; (2) her speech

involved a matter of public concern, and (3) her interest in commenting on the matter

outweighed the interest of the State, as an employer, in promoting the efficiency of the

public services it performs through its employees.31 If the speech does not involve a matter

of public concern, the First Amendment does not protect it, and the claim fails at the

threshold.32

The circuit court declined to apply the Pickering-Connick framework on the ground

that Greer was not a District employee. That was error. Independent contractors who

perform government work are subject to the same First Amendment analysis as public

employees. As the Eighth Circuit has explained, for free-speech retaliation claims, “the

same framework and analysis apply to government contractors as to government

employees.”33 This case fits squarely within that category. The alleged retaliation—Greer’s

inability to obtain substitute-teaching assignments from the District—arose from her role as

a government contractor, not from her status as a private citizen. When the claimed injury

is tied to a government contracting relationship, the Pickering-Connick framework governs.

30
Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 684–85 (1996); O’Hare Truck Serv.,
Inc. v. City of Northlake, 518 U.S. 712, 720 (1996); see also Heritage Constructors, Inc. v. City
of Greenwood, 545 F.3d 599, 602–03 (8th Cir. 2008).
31
Hicks v. Benton Cnty. Bd. of Educ., 222 F. Supp. 3d 613, 627 (W.D. Tenn. 2016);
see also Connick v. Myers, 461 U.S. 138, 146–47 (1983); Pickering v. Bd. of Educ., 391 U.S.
563, 568 (1968).
32
Connick, 461 U.S. at 147.
33
Heritage Constructors, Inc. v. City of Greenwood, 545 F.3d 599, 602 (8th Cir. 2008).

14
Under that framework, Greer’s ethics complaint was not protected speech. Whether

speech addresses a matter of public concern depends on its content, form, and context.34

Speech driven by a personal grievance—even if touching on matters of public interest—is

generally not protected.35 Greer’s complaint alleged mistreatment of her own child and

demanded redress for him alone. It did not purport to expose systemic wrongdoing or

advocate on behalf of other students. Courts consistently hold that advocacy on behalf of a

single student is a private matter, not speech on a matter of public concern. 36 The circuit

court’s conclusion that the complaint implicated a public interest conflated the subject

matter with the speaker’s purpose. In this context, the First Amendment protects speech

intended to inform the public, not speech aimed solely at resolving a private dispute.

Because Greer’s complaint advanced only her personal interests, it was not constitutionally

protected within the scope of our analysis here.

Because Greer failed to establish that her speech was protected (i.e., a nonprivate

matter of public concern), her ACRA individual-capacity claims against Bacon and Gattis

cannot survive as a matter of law. The circuit court’s grant of summary judgment in Greer’s

favor on those claims is reversed, and judgment is entered for the appellants

iii. The circuit court erred in granting Greer a permanent injunction

34
De Llano v. Berglund, 282 F.3d 1031 (8th Cir. 2002).
35
Id.
36
See Gorum v. Sessoms, 561 F.3d 179 (3d Cir. 2009); Hicks v. Benton Cnty. Bd. of
Educ., 222 F. Supp. 3d 613 (W.D. Tenn. 2016).

15
Because Greer’s substantive claims fail as a matter of law, the permanent injunction

cannot stand. An injunction is a remedy, not a freestanding cause of action. Without a

valid underlying violation, there is nothing to enjoin. Accordingly, because we reverse the

summary-judgment rulings, we also vacate the order granting the injunction.

IV. Conclusion

Because Greer’s claims fail as a matter of law, we reverse the circuit court’s summary-

judgment rulings. We likewise reverse the jury’s award of damages and vacate the circuit

court’s order granting a permanent injunction. We remand for entry of judgment in favor

of appellants consistent with this opinion.

Reversed and remanded.

BAKER, C.J., and HUDSON, J., concur in part and dissent in part.

COURTNEY RAE HUDSON, Justice, concurring in part and dissenting in

part. I agree with the majority that the circuit court erred in granting summary judgment

in favor of appellee Brandi Greer on her § 1983 and official-capacity Arkansas Civil Rights

Act (ACRA) claims. I would also reverse the grant of permanent injunctive relief as

explained below. However, I would affirm the circuit court’s grant of summary judgment

on the remaining claims. Accordingly, I concur in part and dissent in part.

Appellants contend that Greer cannot assert a claim under the Rehabilitation Act of

1973 because the District was not her employer. No such employment relationship is

required. Section 504 of the Rehabilitation Act broadly prohibits disability-based

discrimination in federally funded programs:

No otherwise qualified individual with a disability in the United States . . . shall,
solely by reason of her or his disability, be excluded from participation in, be denied

16
the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance[.]

29 U.S.C. § 794 (a). Nothing in this provision limits relief to the employment context.

Another subsection provides as follows:

The standards used to determine whether this section has been violated in a
complaint alleging employment discrimination under this section shall be the
standards applied under title I of the Americans with Disabilities Act of 1990 (42
U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of
the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 to 12204 and 12210),
as such sections relate to employment.

29 U.S.C. § 794 (d). Clearly, subsection (d) relates to employment-discrimination allegations

and provides that the standards of certain parts of the Americans with Disabilities Act of

1990 (ADA) are applicable to the Rehabilitation Act as such sections apply to employment.

This is far from a wholesale incorporation of the ADA for all purposes.

I would follow the well-reasoned decisions of the Courts of Appeal for the Fifth,

Ninth, and Tenth Circuits and hold that the Rehabilitation Act does not incorporate Title

I’s requirement that the defendant be the plaintiff’s “employer” as that term is defined in

the ADA. Flynn v. Distinctive Home Care, Inc., 812 F.3d 422 (5th Cir. 2016); Fleming v. Yuma

Reg’l Med. Ctr., 587 F.3d 938 (9th Cir. 2009); Schrader v. Fred A. Ray, M.D., P.C., 296

F.3d 968 (10th Cir. 2002). As the Ninth Circuit has explained, to reduce the express scope

of the Rehabilitation Act by wholesale adoption of the ADA, “we would have to conclude

that Congress narrowed the Rehabilitation Act by adopting the ADA. That conclusion

contradicts the plain import of those acts, and we decline to go down that road without a

clearer indication that Congress wanted us to.” Fleming, 587 F.3d at 944. I would reject

17
appellants’ argument that an employment relationship is required to state a claim under the

Rehabilitation Act.

In addition, appellants argue that Greer failed to show an adverse employment action

under the Rehabilitation Act. As explained above, an employment relationship is not

required under section 504 of the Rehabilitation Act. Here, there is no dispute that Greer

was barred from working in the District because of her ethics complaint to the Arkansas

Department of Education. Greer’s inability to continue working at the same school her

children attended was materially adverse to her, in that she sought to have the same schedule

as her children and to avoid paying for childcare, as was the resulting loss in pay. See

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006) (recognizing that a change in

schedule may make little difference to many workers, but may matter enormously to a

mother with school-age children). In my view, Greer stated a claim under the

Rehabilitation Act, the material facts were undisputed, and she was entitled to judgment as

a matter of law. Appellants have failed to make a convincing argument for reversal on this

point, and therefore I would affirm.

I would also affirm the grant of summary judgment in favor of Greer on her

individual-capacity ACRA claim. Appellants argue that Greer was neither an employee nor

an independent contractor of the District; rather, she was an employee of a third party who

is nonetheless subject to the test set out in Pickering v. Board of Education, 391 U.S. 563

(1968), and further developed in Connick v. Myers, 461 U.S. 138 (1983), for her free-speech

retaliation claim. Accepting that the Pickering analysis applies, Greer was required to show

that (1) she was speaking as a private citizen, rather than pursuant to her official duties; (2)

18
her speech involved a matter of public concern, and (3) her interest in commenting on the

matter outweighed the interest of the government, as an employer, in promoting the

efficiency of the public services it performs through its employees. The majority holds that

the ethics complaint Greer lodged with the Arkansas Department of Education’s Professional

Licensure Standards Board was not protected speech because it did not involve a matter of

public concern. I disagree. Greer acted as a private citizen seeking to expose matters affecting

the public interest when she filed the ethics complaint against her son’s public school

teacher. It is significant that Greer made the ethics complaint after her son had been removed

from that teacher’s class, indicating a desire to protect other students from undergoing a

similar experience.

Although there was clearly an element of personal interest involved, the public always

has an interest in whether a public employee—here, a school teacher—is acting unethically

in the performance of his or her job. The speech or petitioning at issue need not be

exclusively a matter of public concern to satisfy Pickering. E.g., Connick, 461 U.S. at 149

(“Because one of the questions in [the plaintiff’s] survey touched upon a matter of public

concern, and contributed to her discharge we must determine whether Connick was

justified in discharging [the plaintiff].”) (emphasis added); City of San Diego v. Roe, 543 U.S.

77, 83–84 (2004) (“[P]ublic concern is something that is a subject of legitimate news interest;

that is, a subject of general interest and of value and concern to the public at the time of

publication.”). Greer’s complaint was not that of a personal workplace grievance but one

emanating from concern over a teacher’s alleged disability discrimination and mistreatment

of her son. In my view, the ethics complaint constituted speech over a matter of public

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concern. Further, the circuit court noted a “lack of any articulable non-discriminatory

reason for the directive keeping [Greer] from substitute teaching in the entire school

district.”

Because Greer’s claim may move forward under Pickering, I would address the analysis

employed by the circuit court. To establish a First Amendment retaliation claim, the plaintiff

must show (1) she engaged in a protected activity, (2) the government official took adverse

action against her that would chill a person of ordinary firmness from continuing in the

activity, and (3) the adverse action was motivated at least in part by the exercise of the

protected activity. See Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004). As the circuit

court correctly held, these elements were met in this case. I would affirm on this point.

Finally, Greer is not entitled to permanent injunctive relief. Irreparable harm is “the

touchstone of injunctive relief.” Bentonville Sch. Dist. v. Sitton, 2022 Ark. 80, at 13–14, 643

S.W.3d 763, 772 (citing Thurston v. Safe Surgery Ark., 2021 Ark. 55, at 19, 619 S.W.3d 1,

13). Further, harm is normally considered irreparable only when it cannot be adequately

compensated by money damages or redressed in a court of law. Id. Loss of income and

damage to one’s reputation are not the type of irreparable harm that can justify injunctive

relief because even a wrongful and illegal loss of employment can be fully compensated by

money damages. See Doe v. Ark. Dep’t of Hum. Servs., 357 Ark. 413, 182 S.W.3d 107 (2004)

(loss of ability to work was not irreparable harm, and thus, employees were not entitled to

preliminary injunction); see also Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980) (a

physician who lost a six-figure salary when his employment contract with a hospital was

terminated was not entitled to temporary injunctive relief, even if his reputation was

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damaged and he was forced to relocate to find suitable employment, because the harm he

suffered could be compensated by money damages); Minnesota Ass’n of Nurse Anesthetists v.

Unity Hosp., 59 F.3d 80, 83 (8th Cir. 1995) (holding that the loss of a job is “quintessentially

reparable by money damages”). Accordingly, I would reverse the circuit court’s grant of

injunctive relief.

I respectfully concur in part and dissent in part.

BAKER, C.J., joins.

Taylor & Taylor Law Firm, P.A., by: Jennifer Williams Flinn, Tory H. Lewis, Andrew M.

Taylor, and Tasha C. Taylor, for appellants.

Sutter & Gillham, P.L.L.C., by: Lucien Gillham and Luther Sutter, for appellee.

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