Session February 10, 2016
by Permission from the Court of Appeals Chancery Court for
Shelby County No. CH062420 Walter L. Evans, Chancellor
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.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Court of Appeals Reversed; Judgment of the Trial Court
Weintraub, Memphis, Tennessee, for the appellant, Shelby
County Board of Education
Allen, Memphis, Tennessee, for the appellee, Rogelynn Sue
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.
and Procedural Background
Emory began working full-time as a teacher in the Memphis
City School System 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
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.
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.
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.
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.
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). 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. Under the Tenure Act, Dr. Johnson
recommended that the Board terminate Ms. Emory's
employment on the ground of
"inefficiency." See Tenn. Code Ann. §
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.
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.
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."
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
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.
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.
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.
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
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
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.
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.
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.
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.
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. 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.
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. 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.
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.
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.
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
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
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.
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.
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
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
of Appeals Decision
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.
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
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.
parties filed applications for permission to appeal to this
Court. We accepted both applications.
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?"
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 ...