Session Date: January 18, 2017
from the Chancery Court for Shelby County No. CH-15-0622
James R. Newsom, Chancellor
a teacher tenure case. Appellant, a tenured teacher employed
by Appellee Shelby County Board of Education, was fired for
insubordination and conduct unbecoming. Appellant appealed
the Shelby County School Board's decision to the Chancery
Court for Shelby County. In a post-trial motion, Appellee
petitioned the court to consider an email notification of the
board's decision that was sent to Appellant's
attorney. Specifically, Appellee argued that the email
constituted statutory notice to the Appellant so as to start
the thirty-day time period for filing an appeal of the
board's decision in the trial court. Tenn. Code Ann.
49-5-513(b). The trial court denied the motion as newly
discovered evidence. We conclude that the email goes directly
to the question of whether the Appellant's petition was
timely so as to confer subject-matter jurisdiction on the
trial court. Accordingly, the trial court erred in treating
the motion as one for permission to file "newly
discovered evidence." Because the trial court applied an
incorrect legal standard in ruling on the admissibility of
the email evidence and did not address the question of its
subject-matter jurisdiction, we vacate the trial court's
order and remand for further proceedings.
R. App. 3 Appeal as of Right; Judgment of the Chancery Court
Vacated and Remanded
Kathleen Laird Caldwell, Memphis, Tennessee, for the
appellant, Mark George.
Kenneth Melton Walker, II, Jennifer Hinds Collins, and Rodney
Gregory Moore, Memphis, Tennessee, for the appellee, Shelby
County Board of Education.
Armstrong, J., delivered the opinion of the court, in which
Arnold B. Goldin, and Brandon O. Gibson, JJ., joined.
Mark George began his career with Appellee Shelby County
Board of Education (the "Board") in 1997. He was a
substitute teacher with the Shelby County Schools
("SCS") from 1997 until he was hired as an interim
teacher in April of 2001. Mr. George achieved tenure status
on July 21, 2005. During the time he was employed by
Appellee, Mr. George was involved in several incidents;
however, the incident that immediately preceded the
termination of his employment occurred on May 14, 2014. This
incident involved a Colonial Middle School 8th grader. Mr.
George directed the student to sit, and the student failed to
comply. Mr. George then walked to the back of the room and
grabbed the student and pulled his shirt. Mr. George did not
initially report the incident, but the student, who was
involved in the incident, reported it, and two other students
corroborated the student's account. When questioned, Mr.
George admitted that he got "nose to nose" with the
student and "there might have been a chest bump." T
he student later requested that the matter not be pursued,
but he never recanted his statement. Mr. George was suspended
effective May 20, 2014.
August of 2014, tenure charges were brought against Mr.
George; these charges included conduct unbecoming a teacher
and insubordination. Tenn. Code Ann. §§
49-5-501(3), (7). Mr. George requested, and was granted, an
administrative hearing, which was held on February 3 and 4,
2015. Tenn. Code Ann. §49-5-512. On February 26, 2016,
the Hearing Officer entered findings of fact and conclusions
of law, finding that Mr. George had engaged in unprofessional
conduct and insubordination in connection with the May 14,
2014 incident. T he Hearing Officer sustained the
Superintendent's recommendation of dismissal. Mr. George
then appealed the Hearing Officer's ruling to the Board,
which held an appeals hearing on April 2, 2015. F ollowing
arguments, the Board voted unanimously to uphold the Hearing
Officer's findings of insubordination and conduct
unbecoming and the Hearing Officer's recommendation of
dismissal. Mr. George filed a petition for writ of certiorari
in the Chancery Court ("trial court") on May 7,
2015. The administrative record was transmitted to the trial
court. In addition to the administrative record, the trial
court also heard evidence concerning Mr. George's
allegations of disparate treatment. The trial court entered
its findings of fact and conclusions of law on May 10, 2016,
upholding the Appellee's decision to terminate Mr.
George's employment. Mr. George appeals.
Mr. George raises the following issues for review:
1. Whether Mr. George was denied due process. From the
argument section of his brief, it appears that Mr. George
makes several arguments concerning alleged violation of due
process: (A) the written charges were defective under TCA
§ 49-5-511, i.e., the notice did not reference the form
from the Commissioner of Education; and the ...