Emory v. Memphis City Sch. Bd. of Educ.

514 S.W.3d 129

Rogelynn EMORY

v.MEMPHIS CITY SCHOOLS BOARD OF EDUCATION, now known as Shelby County Board of Education

No. W2014–01293–SC–R11–CV

Supreme Court of Tennessee, AT JACKSON.

February 10, 2016 Session

MARCH 28, 2017

Jeff Weintraub and Gabriel P. McGaha, 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, JJ., joined.

ORDER

PER CURIAM

The Appellee, Rogelynn Emory, filed a petition to rehear the Opinion of this Court filed on January 13, 2017. On February 1, 2017, the Tennessee Education Association filed a motion for leave to file a brief as amicus curiae. By order of February 7, 2017, Appellant, Memphis City Schools Board of Education, now known as Shelby County Board of Education, was ordered to file a response to the petition to rehear and the amicus curiae brief as to the standard of review. Appellant's response was filed on March 9, 2017. On March 14, 2017, Appellee filed a motion for leave to file a response to supplemental brief in support of petition to rehear.

In her petition to rehear, Appellee argues inter alia that the standard of review adopted by the Court was incorrect. In its amicus brief, the Tennessee Education Association argues that the Court's discussion of the standard of review should not be limited to the Teacher Tenure Act as it was in 2005 and 2006, but should instead also take into account amendments to the Teacher Tenure Act that were enacted in 2007.

Upon due consideration, the Court concludes that the petition to rehear is well-taken as to the standard of review and therefore should be granted as to this issue. No reargument or resubmission is required under the circumstances of this case.

The petition to rehear is denied as to all remaining issues. Further, Appellee's motion for leave to file a supplemental brief in support of the petition to rehear is denied.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the attached Opinion be and the same is hereby substituted for that Opinion filed in this cause on January 13, 2017, without change to this Court's judgment entered contemporaneously with the filing of the original Opinion on January 13, 2017, and without the further taxing of costs.

OPINION

HOLLY KIRBY, JUSTICE

FACTUAL AND PROCEDURAL BACKGROUND

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.

Rogelynn Emory began working full-time as a teacher in the Memphis City School System¹ 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 of 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...