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Emory v. Memphis City Schools Board of Education

Supreme Court of Tennessee, Jackson

January 13, 2017


          Session February 10, 2016

         Appeal by Permission from the Court of Appeals Chancery Court for Shelby County No. CH062420 Walter L. Evans, Chancellor

         This case arises out of the termination of a tenured teacher. After a three-day hearing, the school board concluded that there was ample evidence of the teacher's unsatisfactory job performance, so it terminated her employment. In the trial court review of the school board's decision, the teacher argued that she should be reinstated with back pay because her school board hearing occurred well beyond the thirty-day period set forth in the Teachers' Tenure Act. The trial court affirmed the termination and the teacher appealed. The Court of Appeals declined to reinstate the teacher based on the untimeliness of the school board hearing but it awarded her partial back pay. On appeal, we first clarify the standard of judicial review for the termination of a tenured teacher under the Tenure Act. Second, we reverse the Court of Appeals' award of partial back pay to the teacher because the relief ordered is without basis in the Tenure Act. Finally, because the teacher failed to raise to the school board any objection as to the timeliness of her hearing, we hold that the issue is not properly before this Court. Accordingly, we affirm the trial court's decision to uphold the termination of the teacher's employment.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Court of Appeals Reversed; Judgment of the Trial Court Affirmed

          Jeff Weintraub, Memphis, Tennessee, for the appellant, Shelby County Board of Education

          Mark Allen, Memphis, Tennessee, for the appellee, Rogelynn Sue Emory

          Holly Kirby, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark and Sharon G. Lee, J.J., joined.



         Factual and Procedural Background

         Rogelynn Emory began working full-time as a teacher in the Memphis City School System[1] in 1977 and eventually attained tenured status. Ms. Emory was certified to teach French, English and Social Studies, and she was also certified in Administration. During her career with Memphis City Schools, Ms. Emory taught French and/or English at a number of different high schools in Memphis.[2]

         During the 1996-1997 school year, Ms. Emory began exhibiting unusual stress while at school. She had trouble managing her fears and emotions when instructing students, which in turn led to difficulty controlling her classroom. Written evaluations and witness testimony indicated that, during that time, Ms. Emory's classroom instruction was poor and she did not give proper attention to student needs and differences. Her behavior became increasingly erratic and irrational, and administrative attempts to help her were unavailing. Her psychiatrist diagnosed her with post-traumatic stress disorder and paranoia. Eventually, in April 1999, Ms. Emory was placed on indefinite leave to seek medical attention. She stayed on leave for several years.

         In 2003, Ms. Emory's medical leave ended. She resumed teaching in the Memphis City School System in November 2003. However, despite the end of her medical leave, Ms. Emory's problems persisted.

         During the 2004-2005 school year, Ms. Emory taught eleventh-grade English at Central High School in Memphis. Early in the school year, Central High principal Greg McCullough observed that there was very little learning going on in Ms. Emory's classes. He saw "major classroom management issues, " to the point that he viewed her class as "out of control." Ms. Emory repeatedly called the administrative office for classroom help on problems that a seasoned teacher should have been able to handle, such as classroom noise. She displayed a low level of teaching skill even during planned classroom observation. From Mr. McCullough's vantage point, the students did not appear to be the issue. All five of Ms. Emory's classes had disruption and chaos, but other teachers with the same students in their classes experienced far fewer problems. Mr. McCullough felt that the problems were Ms. Emory's poor classroom management and her low level teaching skills.

         Repeated administrative attempts to assist Ms. Emory and help her improve proved futile. She blamed her difficulties on students and the administration and was not receptive to either advice or assistance. Ultimately, Mr. McCullough recommended that the Memphis City Schools Board of Education (the "Board") terminate Ms. Emory's employment at the end of the school year.

         After receiving Mr. McCullough's recommendation, the Superintendent of the Memphis City Schools, Dr. Carol Johnson, initiated termination proceedings pursuant to the Teachers' Tenure Act ("Tenure Act"), codified at Tennessee Code Annotated sections 49-5-501 to -515 (2006).[3] In a letter to the Board dated September 20, 2005, Dr. Johnson set out Ms. Emory's troubled employment history with the school system and her unsatisfactory job performance dating back to the 1996-1997 school year.[4] Under the Tenure Act, Dr. Johnson recommended that the Board terminate Ms. Emory's employment on the ground of "inefficiency."[5] See Tenn. Code Ann. § 49-5-511(a)(2).

         In a letter dated September 30, 2005, Dr. Johnson notified Ms. Emory of the charges against her. The letter attached a statement of Ms. Emory's rights under the Tenure Act and a copy of the written charges against her. It informed Ms. Emory that she had thirty days to request a hearing before the Board on the charges.

         In a letter to Dr. Johnson dated October 18, 2005, Ms. Emory requested a hearing before the Board on the charges against her. The letter included the name and contact information for Ms. Emory's Tennessee Education Association attorney and asked Dr. Johnson to contact her attorney to determine "a mutually agreeable date for a hearing." A stamp on the letter indicates that it was received by the Superintendent's office on October 20, 2005.

         In a letter dated November 11, 2005, the Director of the Memphis City Schools Division of Labor and Employee Relations, James Davis, acknowledged receipt of Ms. Emory's request for a tenure hearing. Mr. Davis said in the letter that he would "get some dates that the Board Commissioners are available to hear your case and advise you of when the hearing is scheduled."

         On April 7, 2006, Tennessee Education Association attorney Virginia McCoy sent a letter to the Memphis City School System, notifying them that she was replacing Ms. Emory's prior attorney.

         Board Hearing

         On November 1, 2, and 8, 2006, the Board conducted a three-day hearing on Ms. Emory's appeal of the charges against her. Ms. Emory was represented by Ms. McCoy, who is not the attorney of record in this appeal.

         At the hearing, Mr. McCullough testified about his observations regarding Ms. Emory's teaching difficulties, outlined above. The Board also proffered the testimony of Central High's assistant principal, Gary Steverson, who observed similar problems with Ms. Emory's teaching. One of Mr. Steverson's main areas of responsibility was student discipline, and he said that Ms. Emory got the administration involved in disciplinary issues in her classroom nearly every day. He testified that the administration had received complaints from some students and parents that the students in Ms. Emory's classes were not getting what they needed for college preparation. Ms. Emory did not indicate to Mr. Steverson that emotional or mental problems contributed to her classroom issues. Despite administrative efforts to help Ms. Emory, Mr. Steverson said, her job performance got progressively worse over the course of the school year.

         The Board also offered testimony from other school administrators and other teachers who worked with Ms. Emory after her return from medical leave. They corroborated the testimony from Principal McCullough and Assistant Principal Steverson regarding Ms. Emory's poor classroom management, lack of teaching skills, and unwillingness or inability to receive constructive criticism and improve, and supported the written charges against Ms. Emory.

         In response, Ms. Emory presented the testimony of several witnesses. Alberta Hardaway taught with Ms. Emory at Central High School. She testified that Ms. Emory was "great" at explaining the lessons to students; she said that Ms. Emory was very knowledgeable and felt that she could be an effective teacher. Roosevelt Hancock, Jr. was an assistant principal at Hillcrest while Ms. Emory taught there. Mr. Hancock testified that Ms. Emory "did her job" teaching classes "without anything out of order" but had students "who did not want to adhere" to the rules. However, Mr. Hancock conceded that Ms. Emory had only partial control over her classroom, and he acknowledged that this was not sufficient. Fellow Hillcrest foreign language teacher Diane Noyes described Ms. Emory as an excellent, conscientious teacher who "tried her best to teach these children." However, both Ms. Noyes and Mr. Hancock had heard Ms. Emory refer to her students as "criminals."

         Ms. Emory testified as well. In her testimony, Ms. Emory described incidents dating back to the 1990s involving student behavior that was upsetting or even traumatic for her.[6] She testified about numerous grievances after she returned from medical leave, stemming either from student misconduct or administrative admonitions that she believed were without basis. Nevertheless, in response to a Board member's question, Ms. Emory maintained that she had no lingering psychological effects from all of these incidents. She insisted that she was an effective teacher and that she wanted to continue teaching.

         At the close of the proof, the Board deliberated at some length. After deliberation, the Board voted unanimously to sustain Ms. Emory's dismissal and to adopt the findings as set forth in the written notice of charges. On November 9, 2006, the Board terminated Ms. Emory from her tenured position.

         Chancery Court Proceedings

         In December 2006, Ms. Emory, representing herself, filed a "Petition for Judicial Review" in the Chancery Court of Shelby County seeking judicial review of the Board's decision. The petition alleged that the Board violated Tennessee Code Annotated section 49-5-512 by failing to hold her hearing within thirty days from receipt of her letter demanding a hearing, that the dismissal was in retaliation for unrelated litigation she had initiated, and that the Board's decision was arbitrary and capricious.

         For reasons that do not appear in the record, there was no activity in the case for two years. In October 2008, the Board's attorney filed a notice of appearance. The record contains no further action by either party for over two years thereafter, until it was finally dismissed for lack of prosecution in April 2011. Shortly after the dismissal for lack of prosecution, Ms. Emory's new attorney, her counsel in this appeal, filed a notice of appearance. The trial court then set aside its order dismissing the case.

         In June 2013, the trial court held a hearing on Ms. Emory's petition. At the hearing, Ms. Emory took the position that the Board's decision was arbitrary and capricious. She sought to present additional evidence regarding her contention that the Board violated Tennessee Code Annotated section 49-5-512(a)(2) by not providing Ms. Emory with a hearing within the required 30-day period. Once the thirty-day period for Ms. Emory's Board hearing lapsed, she contended, the Board lost jurisdiction to terminate Ms. Emory's employment. At that point, Ms. Emory argued, in order to terminate her employment, the Board was required to re-issue its notice of the charges and start the termination process over.[7] She asked the trial court to permit her to submit additional evidence, order reinstatement, and award Ms. Emory back pay dating back to the date of her suspension.

         In response, the Board noted that Ms. Emory was represented by counsel in the Board hearing, and it observed that she received a multi-day hearing with numerous witnesses and exhibits and ample opportunity to put on her own proof. The Board pointed to overwhelming proof supporting its decision to terminate Ms. Emory's employment, demonstrating that it was neither arbitrary nor capricious. It opposed the introduction of any evidence that was not before the Board in its hearing. The Board emphasized that, over the course of the entire Board hearing, neither Ms. Emory nor her counsel raised the issue of the delay. The Board attorney, who had participated in the Board hearing, explained to the trial court that the delay in the termination hearing was consensual and was the result of the parties' joint effort to balance the schedules of the many persons required to participate in the hearing, including the attorneys and the citizen Board members.[8] The Board argued that Ms. Emory was not entitled to relief because she could not show that the delay prejudiced her right to a full and fair hearing.

         In response to questions from the trial court, Ms. Emory's counsel said that, even if the date of the hearing had been consensual, he'd seen no documents stating that it was. Also in response to the trial court's inquiry, Ms. Emory's attorney conceded that the delay had no effect on the outcome of the hearing. Regardless of prejudice, Ms. Emory insisted, the Tenure Act clearly required a hearing within thirty days and Ms. Emory's hearing was not held in thirty days; so, she was entitled to reinstatement.

         The trial court permitted Ms. Emory's counsel to make an offer of proof, which consisted of the additional documents he asked the trial court to consider. The Board's attorney submitted several documents as well, and the parties stipulated as to the authenticity of all of the additional documents. However, the Board maintained that any delay in conducting the hearing was harmless error, so it asked the trial court not to consider anything outside of the record that was before the Board. Both parties were asked to submit proposed findings of fact and conclusions of law. The trial court then took the matter under advisement.

         In late October of 2013, the trial court entered an order affirming the Board's decision. In a separate statement of factual findings and conclusions of law, the trial court set out at length the evidence presented by both parties at the Board hearing. It noted that, during the Board hearing, Ms. Emory "did not complain about her hearing being untimely or about any prejudice to her caused by its delay." The court concluded that the testimony before the Board "demonstrated that [Ms. Emory] had severe deficiencies in her teaching ability, which includes classroom-management skills, for several years." It deemed the evidence "more than sufficient" to support the Board's conclusion that Ms. Emory's teaching skill was below the required standard and to justify its decision to terminate her employment.

         As to the Board's delay in conducting the hearing, the trial court noted that Ms. Emory had notice and an opportunity to be heard. It stated, "The fact that the hearing before the Board occurred beyond the statutory 30-day period did not affect Ms. Emory's substantial rights. . . . [V]iolations of procedural aspects of the tenure law do not entitle a plaintiff to damages if the termination was justified." It cited federal cases to the effect that a deprivation of procedural due process would entitle a terminated teacher to substantive relief only if the teacher showed that she was damaged by the procedural violation. The trial court distinguished Thompson v. Memphis City Schools, 395 S.W.3d 616 (Tenn. 2012), on the basis that, in that case, the noncompliance with the Tenure Act was so extensive that it amounted to a violation of the teacher's substantive rights. The trial court added: "There is no evidence in the record that [Ms. Emory] objected or did not consent to the date chosen for the hearing. [Ms. Emory] concedes that she has not been harmed or prejudiced by the delay of the hearing."

         In November 2013, Ms. Emory filed a motion to alter or amend the trial court's judgment. Ms. Emory's attorney noted that the findings of fact and conclusions of law did not refer to the additional exhibits submitted to the trial court, and he sought to clarify whether the trial court had considered them. He reiterated the argument that the Board violated the Tenure Act by failing to give Ms. Emory a hearing within 30 days of her request and contended that the remedy was for the Board to reinstate her. He conceded that the Board could immediately reinstitute the charges against Ms. Emory but felt that doing so would permit him to pursue a more effective strategy in the new hearing.

         In response to the trial court's question about the delay, Ms. Emory's counsel said, "[Ms. Emory] had counsel . . . . She was represented by [Memphis Education Association] . . . like most every other teacher. I don't know why it got put off. I wasn't representing her. . . . I don't know what happened." He asserted, "I don't know why [Ms. Emory's] counsel didn't say anything at the [Board] hearing about [the delay], but I don't think counsel had to because . . . the mandates of the Tennessee [Tenure] Act are clear, they have to [hold the hearing] within . . . 30 days." After Ms. Emory's counsel conceded that her attorney did not raise the delay as an issue before the Board, the trial court asked him about "presenting] a new [issue] in the, in the chancery court where it was not raised before the board?" Ms. Emory's counsel claimed:

I get to do that. It's a de novo hearing, Judge. I get to raise a legal question right now that's never been raised before . . . the school board.... I can't raise it in the Court of Appeals, but I have to raise it to you. And that's what I'm doing.

         At the conclusion of the hearing on the motion to alter or amend, the trial court reiterated that the record before the Board supported the decision to terminate. It stated:

[T]he primary and moving concern that [Ms. Emory] has at this point is that it took 300 something days from her termination day for her to have a hearing. But notwithstanding the extensive time that it took to bring the matter to a hearing, the issue of the delay was never considered by . . . the board.

         The trial court concluded that Ms. Emory had not established that, "had that issue been presented, " the result would have been different. It allowed the additional documents to be part of the record but said that Ms. Emory had not shown that they would have changed the outcome. The trial court denied the motion to alter or amend. Ms. Emory appealed.

         Court of Appeals Decision

         On appeal, the Court of Appeals indicated that the trial court had mischaracterized Ms. Emory's claim as based on an alleged deprivation of procedural due process. Emory v. Memphis City Sch. Bd. of Educ, No. W2014-01293-COA-R3-CV, 2015 WL 1934397, at *3-4 (Tenn. Ct. App. Apr. 29, 2015), perm. app. granted (Sept. 18, 2015). It noted that the Tenure Act provides greater protections to teachers than the minimal constitutional due process requirements, and it framed the issue as whether Ms. Emory received the statutory protections afforded her under the Tenure Act. Id. at *4.

         After discussing Thompson at length, the Court of Appeals turned to the question of whether the statutory provision requiring the Board to conduct its hearing within thirty days of the teacher's demand is "mandatory" or "directory." Id. at *4-7 (citing Tenn. Code Ann. § 49-5-512(a)(2); Thompson, 395 S.W.3d at 618-630). It acknowledged that the statute uses the word "shall" in connection with the thirty-day period for the hearing but noted that statutory requirements related to the time for performing an act may be construed as directory rather than mandatory. Id. at *6. It noted that the primary purpose of the Tenure Act is to protect teachers from arbitrary dismissals and that the essential purpose of section 49-5-512 is "to ensure that tenured teachers are provided a full and fair pre-termination hearing." Id. at *7. The time requirement for the hearing, it held, is not "fundamental" to the statute. It also observed that the statute contains no language indicating that "the failure to provide a hearing within the specified time period renders the proceedings void." Id. Accordingly, the Court of Appeals held that the "timely hearing requirement in Section 49-5-512(a)(2) is directory rather than mandatory." Id.

         At that point, the appellate court expressed concern that its holding that the thirty-day hearing provision is directory rather than mandatory, coupled with the absence of any penalty for a failure to hold the hearing within thirty days, "could render the provision meaningless." Id. It declined to rule that the Board's failure to hold Ms. Emory's hearing within thirty days rendered the Board's proceedings void, but it felt that "some sanction . . . is necessary." Id. The appellate court noted that "the only prejudice Ms. Emory suffered as a result of the delayed hearing is that she was suspended without pay following her demand for a hearing for a number of days that exceeded the statutory limit." Id. "Accordingly, " it held, "the proper remedy is an award of back pay for the additional days that Ms. Emory was suspended without pay and without a hearing in violation of the Tenure Act." Id. The Court of Appeals then reversed the judgment of the trial court and remanded the case to the trial court to determine the amount of back pay to which Ms. Emory was entitled. Id.

         Both parties filed applications for permission to appeal to this Court. We accepted both applications.

         Issues on Appeal

         On appeal, the Shelby County Board of Education raises the following issue: "Whether the Court of Appeals erred in holding that Ms. Emory was entitled to back pay when the Tenure Act does not prescribe an award of back pay when a tenured teacher, who has been terminated, does not receive a tenure hearing within 30 days of requesting it?"

         Ms. Emory also challenges the remedy crafted by the Court of Appeals, but, not surprisingly, frames the issue differently: "Does the Court of Appeals have the authority under the Tenure Act to award partial back pay where Tenn. Code Ann. § 49-5-511(a)(3) requires an award of full ...

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