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George v. Shelby County Board of Education

Court of Appeals of Tennessee, Jackson

February 8, 2017

MARK GEORGE
v.
SHELBY COUNTY BOARD OF EDUCATION

          Session Date: January 18, 2017

         Appeal from the Chancery Court for Shelby County No. CH-15-0622 James R. Newsom, Chancellor

         This is 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.

         Tenn. 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.

          Kenny Armstrong, J., delivered the opinion of the court, in which Arnold B. Goldin, and Brandon O. Gibson, JJ., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE

          I. Background

         Appellant 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.

         In 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.

         II. Issues

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 ยง 49-5-511, i.e., the notice did not reference the form from the Commissioner of Education; and the ...

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