                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 05a0172p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                                Plaintiff-Appellant, -
 JOE D. PENNYCUFF,
                                                      -
                                                      -
                                                      -
                                                          No. 02-6060
           v.
                                                      ,
                                                       >
 FENTRESS COUNTY BOARD OF EDUCATION; and              -
 HOMER LEE LINDER, JR., Superintendent of Fentress -
                                                      -
                            Defendants-Appellees. -
 County Schools,

                                                      -
                                                     N
                       Appeal from the United States District Court
                    for the Middle District of Tennessee at Nashville.
                 No. 98-00059—Thomas A. Wiseman, Jr., District Judge.
                                   Argued: September 23, 2004
                               Decided and Filed: April 12, 2005
                Before: SILER, BATCHELDER, and ROGERS, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Richard L. Colbert, COLBERT & WINSTEAD, Nashville, Tennessee, for Appellant.
Phillips M. Smalling, HASSLER & SMALLING, Byrdstown, Tennessee, for Appellees.
ON BRIEF: Richard L. Colbert, COLBERT & WINSTEAD, Nashville, Tennessee, for Appellant.
Phillips M. Smalling, HASSLER & SMALLING, Byrdstown, Tennessee, W. Gary Blackburn,
BLACKBURN & McCUNE, Nashville, Tennessee, for Appellees.
                                       _________________
                                           OPINION
                                       _________________
         ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Joe D. Pennycuff appeals
from the district court’s order granting summary judgment in favor of Defendants-Appellees
Fentress County Board of Education and Homer Lee Linder, Jr., Superintendent of Fentress County
Schools (collectively “defendants”), in this 42 U.S.C. § 1983 action. Because we conclude that the
district court correctly determined that Pennycuff did not attain tenure as a teacher in the Fentress
County School System under the provisions of the Tennessee Teacher Tenure Law, Tenn. Code
Ann. §§ 49-5-501, et seq., and therefore, that the Board did not deny him due process when it
terminated his employment without affording him the protections to which a tenured teacher is
entitled, we AFFIRM the judgment of the district court.


                                                 1
No. 02-6060           Pennycuff v. Fentress County Board of Educ., et al.                     Page 2


                                                 I.
       On June 18, 1993, Pennycuff was hired by the Fentress County Board of Education
(“Board”) as the principal of Clarkrange High School for the 1993-94 school year. Pennycuff had
previously been a tenured teacher in the Oneida School System with nearly twenty years of
experience. His first year at the high school was tainted by complaints from parents and students,
student walkouts and the presentation to the Board of a student petition for Pennycuff’s removal.
Despite the controversy, the Board voted on June 14, 1994, to retain Pennycuff as the principal of
Clarkrange High School for the 1994-95 school year. According to the Board’s minutes,
Pennycuff’s status at that time was that of a “non-tenured teacher.”
        On August 30, 1994, the Board held a special meeting at which it adopted the motion of
Board member Freddie Stults to “transfer [Pennycuff’s] tenure from the Oneida School System to
the Fentress County School System.” This meeting occurred after the Board was expanded from
five members to ten, pursuant to Chapter 160 of the Private Acts of 1994, and after the election of
the new members of the Board, but before the terms of the old five-member Board had expired.
Stults had not been reelected, and his motion to transfer Pennycuff’s tenure was his last act as a
Board member. Marjorie Wright, then Superintendent of Schools, neither recommended nor
objected to the motion. No prior notice of this meeting appeared in any newspaper published and
circulated in Fentress County. The agenda for the meeting, prepared by Superintendent Wright, and
distributed to the Board members on August 29, 1994, did not include the issue of Pennycuff’s
tenure as an item for discussion or vote. Neither Wright nor any of the non-moving Board members
were aware that Pennycuff’s tenure would be discussed at the meeting.
        The new ten-member Board met on September 8, 1994, and approved the minutes from the
August 30, 1994, meeting except for the approval of the motion to transfer Pennycuff’s tenure,
which they declared was illegal. The Board eventually voted unanimously to request an Attorney
General’s Opinion regarding the transfer of tenure. Although at meetings held on November 10,
1994, and December 5, 1994, the Board considered taking action to ratify the actions of August 30,
1994, it has yet to ratify those actions.
        In May 1995, the ten-member Board transferred Pennycuff from his position as principal at
Clarkrange to a teaching position at the Fentress County Alternative School. Pennycuff responded
by filing a complaint with the Chancery Court for Fentress County to contest this transfer and
demotion. Pennycuff also filed a quo warranto action in the Chancery Court to challenge the
constitutionality of the Private Act that had authorized the election of the ten-member Board.
Pennycuff’s complaint in the first Chancery Court action asserted, in the third sentence of the fifth
paragraph, that “[o]n August 30, 1994, Pennycuff acquired tenure as an educator in the Fentress
County School System.” In their amended answer, the defendants stated, “[t]he allegations
contained in sentence three paragraph 5 of the complaint are admitted.”
         Pennycuff continued teaching at the Fentress County Alternative School during the 1995-96,
1996-97, and 1997-98 school years, and during that time, he was treated as a tenured teacher with
respect to renewal or nonrenewal of employment. For example, the Board’s practice was to notify
all non-tenured teachers of their nonrenewal before April 15th of each year, and then to rehire them
later in the summer, as needed. Under Tennessee law, any non-tenured teachers who are not notified
of their nonrenewal by April 15th are automatically rehired for the following school year. Tenn.
Code Ann. § 49-5-409. Pennycuff did not appear on the nonrenewal list for those school years, and
he did not appear on the list of non-tenured teachers who were to be rehired. Instead, he was
automatically rehired each year in the same fashion as any tenured teacher in the Fentress County
School System.
No. 02-6060           Pennycuff v. Fentress County Board of Educ., et al.                      Page 3


        On January 21, 1998, the Chancery Court ruled in the quo warranto action, holding that the
Private Act allowing election of a ten-member board was unconstitutional and ordered that the seven
board members who had been elected in August 1994 be removed from office. Two of the ousted
members, Eddie Cook and Notie Byrd, were appointed to fill the vacant seats, returning the Board
to five members. The five-member Board then sought a second legal opinion regarding Pennycuff’s
tenure. The attorney consulted by the Board opined that Pennycuff did not have tenure, and that it
would be defensible to treat him as a non-tenured teacher and not renew his employment. On March
16, 1998, on the motion of Cook and Byrd, the Board voted to place Pennycuff on the non-tenured
teachers list for notification of non-rehire for the 1998-99 school year. This non-rehire notice did
not include any notice of charges and provided no opportunity for a hearing, both of which are
required under Tenn. Code Ann. §§ 49-5-511 and 512 when a tenured teacher is dismissed.
        Pennycuff filed this 42 U.S.C. § 1983 and Tennessee state law action on June 10, 1998,
claiming that his discharge from the Fentress County Alternative School had violated his
constitutional and statutory rights as a tenured teacher, and that his discharge was unlawful because
it had been in retaliation for exercising his constitutional right of access to the courts. He filed a
motion for partial summary judgment on his claim that his discharge had violated his rights as a
tenured teacher. The district court granted this motion, concluding that “Pennycuff was a tenured
teacher at the time the Fentress County Board of Education fired him without cause.” The claim of
retaliatory discharge proceeded to a bench trial, and the district court determined that the Board had
retaliated against Pennycuff for exercising his right of access to the courts.
        The Board appealed only the district court’s decision that Pennycuff was tenured in the
Fentress County School System. On August 21, 2001, this court reversed the district court’s grant
of partial summary judgment to Pennycuff on his claim that he was a tenured teacher and the Board
had failed to comply with due process requirements in terminating his employment. The case was
remanded to the district court for reconsideration in light of the intervening case of Bowden v.
Memphis Board of Education, 29 S.W.3d 462 (Tenn. 2000). On remand, the district court concluded
that Pennycuff had not attained tenure status under the Tennessee Teacher Tenure Law, Tenn. Code
Ann. §§ 49-5-501, et seq. The district court denied Pennycuff’s motion for summary judgment and
granted summary judgment to the defendants.
        Only if Pennycuff had attained tenure in the Fentress County School System would the
Board’s termination of his employment without affording him the protections to which tenure
entitled him constitute a denial of due process. The sole issue on this appeal is whether the district
court properly concluded that Pennycuff did not attain tenure as a teacher in the Fentress County
School System under the provisions of the Tennessee Teacher Tenure Law, Tenn. Code Ann. §§ 49-
5-501, et seq.
                                                  II.
        We review de novo a district court’s grant of summary judgment, using the same standard
under Rule 56(c) used by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999)
(en banc). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R.
CIV. P. 56(c). Entry of summary judgment is appropriate “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
No. 02-6060           Pennycuff v. Fentress County Board of Educ., et al.                        Page 4


                                                 III.
       We first address Pennycuff’s claim that he attained tenure pursuant to Tenn. Code Ann.
§§ 49-5-503(2) and 504(b). The criteria for attaining “permanent tenure” are listed in Tenn. Code
Ann. § 49-5-503(2). They include the requirement that a teacher must complete a three-year
probationary period in order to qualify for tenure. Tenn. Code Ann. § 49-5-503(2)(C). Tenn. Code
Ann. § 49-5-504(b) then provides:
       Upon completion of the probationary period, any teacher who is reemployed or
       retained in the system is entitled to the tenure status for which such teacher is
       qualified by college training and licensing; provided, that the director of schools
       shall notify the board prior to reelection by the board that the teacher, if reelected,
       will attain tenure status.
Tenn. Code Ann. § 49-5-504(b) (emphasis added). References to the director of schools in the
Tennessee Teacher Tenure Law are deemed to be references to the superintendent as those terms are
used interchangeably in the statute. See Tenn. Code Ann. § 49-2-203(a)(14)(A).
        Although the record reflects that Pennycuff completed the three year probationary period at
the end of the 1995-96 school year and even that he was automatically rehired as if he had tenure
for the 1996-97 and 1997-98 school years, it is undisputed that the superintendent never notified the
Board prior to their rehiring Pennycuff that his reemployment for that school year would confer
tenure. In examining Tenn. Code Ann. § 49-5-504(b), the Supreme Court of Tennessee observed,
the “sole, and . . . self-evident, purpose of this proviso is to insure that the board knows that re-
employment will confer tenure.” Bowden, 29 S.W.3d at 465 (quoting Sanders v. Vinson, 558
S.W.2d 838, 843 (Tenn. 1977)). Noting its holding in Reeves v. Etowah City Sch. Bd. of Educ., 806
S.W.2d 176, 179 (Tenn. 1991), that “Tenn.Code Ann. § 49-5-504(b), which requires notice by the
superintendent, is a limitation on Tenn.Code Ann. § 49-5-503(2), which grants permanent tenure
status when a teacher is reemployed after the probationary period,” the Bowden court explicitly held
that notification by the superintendent under Tenn. Code Ann. § 49-5-504(b) is required before a
teacher can attain permanent tenure, even if that teacher has satisfied the criteria for permanent
tenure set forth in Tenn. Code Ann. § 49-5-503(2)(A)-(D). Bowden, 29 S.W.3d at 466. To hold,
as Bowden urged, that notification by the superintendent does not impose a condition upon attaining
tenure, the court said, would be to render the language of § 49-5-504(b) surplusage.
        Pennycuff argues that Bowden is distinguishable on its facts because, unlike the situation in
Bowden, the Fentress County Board knew his status and treated him as tenured. We find
Pennycuff’s arguments unpersuasive. Pennycuff has not demonstrated that the Board knew that its
act of continuing his employment would confer tenure and we do not believe that simply treating
Pennycuff for a time as if he had tenure is the legal equivalent of conferring tenure upon him,
particularly under the circumstances of this case, where the fact of tenure has been in hot dispute for
years. Accordingly, we conclude that the district court properly determined that Pennycuff had not
attained tenure under Tenn. Code Ann. §§ 49-5-503(2) and 504(b), and no genuine issue with
respect to that fact remains for trial.
                                                 IV.
       We next address Pennycuff’s claim that he attained tenure under Tenn. Code Ann. § 49-5-
509 through the Board’s “transfer” of tenure on August 30, 1994. This statute provides: “Tenured
teachers moving to another system shall serve the regular probationary period in the new system.
The local board of education, upon the recommendation of the director of schools, may waive this
requirement and grant tenure status or shorten the probationary period, as it sees fit.” Tenn. Code
Ann. § 49-5-509 (emphasis added). Notwithstanding that there is no provision in the Tennessee
Teacher Tenure Law permitting the “transfer” of tenure from one school district to another,
No. 02-6060           Pennycuff v. Fentress County Board of Educ., et al.                       Page 5


Pennycuff argues that the Board attempted to “grant” him tenure in lieu of the probationary period
requirement when it voted to “transfer” his tenure.
        It is undisputed in this case that Wright, then Superintendent of Schools, did not recommend
a waiver of the probationary period requirement when, at the August 30, 1994, meeting of the Board,
Stults moved to “transfer tenure from the Oneida School System to the Fentress County School
System” for Pennycuff. While we have found no Tennessee cases interpreting Tenn. Code Ann.
§ 49-5-509, the Tennessee Supreme Court’s discussion of Tenn. Code Ann. § 49-5-504(b) in
Bowden is instructive: “[a] basic principle of statutory construction is to ascertain and give effect
to legislative intent without unduly restricting or expanding the intended scope of a statute. This
means that the Court must examine the language of a statute and, if unambiguous, apply its ordinary
and plain meaning.” Bowden, 29 S.W.3d at 465 (internal citation omitted).
         The language of Tenn. Code Ann. § 49-5-509 at issue here—“upon the recommendation of
the superintendent”—like the language of Tenn. Code Ann. § 49-5-504(b) at issue in Bowden,
imposes a condition on attaining tenure. To read it otherwise would be to render it surplusage and
of no effect. Significantly, the Tennessee Attorney General has concluded, in the context of another
provision, that “the ordinary and natural meaning of the statutory provision that the local board
grants tenure to a teacher ‘upon the recommendation of the superintendent’ is that tenure shall be
given only when the superintendent favorably recommends it and the board approves.” 1998 Tenn.
AG LEXIS 9. Pennycuff nevertheless relies on Sanders, in which the Supreme Court of Tennessee,
in interpreting the predecessor provision to Tenn. Code Ann. § 49-5-504(b), stated that “the absence
of [the superintendent’s] recommendation is irrelevant to the issue of tenure.” Sanders, 558 S.W.2d
at 843. But, as the district court correctly held, the statute interpreted in Sanders contained no
affirmative requirement that the superintendent make a recommendation that tenure be granted, and
the statute at issue before us here explicitly requires that recommendation.
        We conclude that because the statute required the recommendation of the superintendent
before tenure could be conferred, and no such recommendation was given by the superintendent in
this case, the district court properly concluded that Pennycuff did not attain tenure under Tenn. Code
Ann. § 49-5-509, and no genuine issue with regard to that fact remains for trial.
                                                  V.
        Pennycuff’s final argument is that the Fentress County Board is judicially estopped from
denying him tenure. Pennycuff’s complaint in the first Chancery Court action asserted, in the third
sentence of the fifth paragraph, that “[o]n August 30, 1994, Pennycuff acquired tenure as an educator
in the Fentress County School System.” In their amended answer, the defendants stated, “[t]he
allegations contained in sentence three paragraph 5 of the complaint are admitted.” Pennycuff now
claims that this was a binding judicial admission and that principles of estoppel should prevent the
Board from denying in the case before us here that he has attained tenure.
       “Judicial estoppel forbids a party from taking a position inconsistent with one successfully
and unequivocally asserted by that same party in an earlier proceeding.” Warda v. C.I.R., 15 F.3d
533, 538 (6th Cir. 1994). “Federal standards govern the application of judicial estoppel in federal
court.” Id. at n.4 (citing Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 n.4 (6th Cir. 1982)).
       The Supreme Court has developed three factors we are to consider when determining
whether to apply the doctrine of judicial estoppel. See New Hampshire v. Maine, 532 U.S. 742, 750
(2001). “First, a party’s later position must be ‘clearly inconsistent’ with its earlier position.” Id.
(quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999)). Second, we may consider
whether the party had successfully persuaded a court to accept his previous position, “so that judicial
acceptance of an inconsistent position in a later proceeding would create ‘the perception that the first
No. 02-6060            Pennycuff v. Fentress County Board of Educ., et al.                        Page 6


or the second court was misled.’” Id. (quoting Edwards, 690 F.2d at 599). Finally, we may consider
“whether the party seeking to assert an inconsistent position would derive an unfair advantage or
impose an unfair detriment on the opposing party if not estopped.” Id. at 751. We have placed
particular emphasis on the second factor, stating that “judicial estoppel governs a dispute only if the
first court ‘adopted the position urged by the party, either as a preliminary matter or as part of a final
disposition.’” Warda, 15 F.3d at 538 (quoting Teledyne Indus. v. National Labor Relations Bd., 911
F.2d 1214, 1218 (6th Cir. 1990)).
        The defendants’ position that Pennycuff is not a tenured teacher is “clearly inconsistent” with
their earlier admission in Pennycuff’s first Chancery Court action that Pennycuff had acquired tenure
on August 30, 1994. There is, however, no evidence that the Chancery Court accepted or relied
upon the defendants’ admission that Pennycuff was a tenured teacher. Indeed, the record before us
does not indicate that the Chancery Court has ever ruled in that action. The quo warranto
proceeding in the Chancery Court dealt exclusively with the constitutionality of the Private Act that
had authorized the election of the ten-member Board, and Pennycuff’s tenure–the sole issue in this
appeal–was not at issue in the state proceeding.
       Judicial estoppel generally forbids only the use of “intentional self-contradiction . . . as a
means of obtaining unfair advantage.” See New Hampshire, 532 U.S. at 751 (quoting Scarano v.
Central R. Co. of N.J., 203 F.2d 510, 513 (3rd Cir. 1953)). Here, however, the defendants relied on
the advice of counsel in filing the answer containing the admission regarding Pennycuff’s tenure.
Their change of position came only after the Chancery Court held that the Private Act creating the
ten-member board was unconstitutional and the Board, now reduced to five members, sought an
opinion from new counsel regarding Pennycuff’s tenure.
        This is not a situation in the which the defendants are attempting to “play [] ‘fast and loose
with the courts,’” or “‘blow [] hot and cold as the occasion demands.’” Reynolds v. C.I.R., 861 F.2d
469, 472 (6th Cir. 1988) (internal citations omitted). Judicial estoppel is an equitable doctrine to be
invoked by this court at its discretion. New Hampshire, 532 U.S. at 750. Because the Board’s prior
admission that Pennycuff was a tenured teacher was made on the advice of counsel in a proceeding
in which Pennycuff’s tenure was not at issue, we decline to invoke the doctrine of judicial estoppel
here.
                                                   VI.
       For the foregoing reasons, we conclude that Pennycuff was not a tenured teacher in the
Fentress County School System when the Board terminated his employment. We therefore
AFFIRM the judgment of the district court.
