State ex rel. McGhee v. John , 1992 Tenn. LEXIS 494 ( 1992 )

OPINION

DAUGHTREY, Justice.

This appeal involves a continuing dispute between the Campbell County Board of Education and a teacher discharged from the Campbell County High School in 1987. The case is before the Court on direct appeal for the third and, we trust, the last time. Its earlier history can be traced in McGhee v. Miller, 753 S.W.2d 354 (Tenn.1988) (McGhee I), and McGhee v. Miller, 785 S.W.2d 817 (Tenn.1990) (McGhee II). Those two appeals involved Julia Anne McGhee’s ultimately successful efforts to be reinstated as a teacher in the Campbell County school system (McGhee I) and to receive the benefits to which she was entitled upon reinstatement (McGhee II). The current controversy arose when McGhee tried to resume her position as a senior English teacher at the Campbell County High School at the end of a 12-month leave of absence, which had been granted by the school board pursuant to T.C.A. §§ 49-5-702 and 49-5-703.

The provisions governing the teacher’s return from leave are found in T.C.A. § 49-5-705, as follows:

Teacher’s reinstatement after leave.— Upon return of the teacher within the twelve (12) months, the interim teacher shall relinquish the position, and the teacher shall return thereto. If the leave exceeds twelve (12) months, the teacher shall be placed in the same or a comparable position upon return from leave.

When the school board failed to assign McGhee to her former position at the high school, she sued the school board, seeking reinstatement to that position and back pay. The trial court ruled against McGhee, and she now appeals the chancellor’s order dismissing her complaint. We find merit in her appeal and reverse the trial court’s judgment in favor of the Campbell County Board of Education.

As the recitation of facts in McGhee I reflects, this case began in January 1987 when Anne McGhee, a tenured high school teacher, gave a failing grade in English to the school’s star basketball player. McGhee was acting in compliance with administrative guidelines, which required the imposition of a failing grade if a student had more than five unexcused absences from class. The student in question had been absent on numerous occasions, and in spite of a warning, he had failed to resume regular attendance or to make up the work he had missed in McGhee’s class. As a result of receiving the failing grade, the student was academically ineligible to play basketball, a situation that was met with what is described in McGhee I as “a considerable hue and cry” in the school’s athletic department and in the community in general. 753 S.W.2d at 355. Within a short period of time, petitions began circulating inside and outside the high school, calling for McGhee’s dismissal as a teacher. On January 19, 1987, McGhee was intimidated by the high school principal into changing the student’s grade from an F to a D-minus and, “too emotionally upset to complete her teaching assignments for the day,” she left the high school and went home. Id.

The “stress and depression brought on by [these] events” caused McGhee to seek treatment from Dr. Mark Beale, a psychiatrist. Id. She notified school officials in early February that Dr. Beale thought she was not immediately able to perform her teaching duties. Nevertheless, the superintendent of schools ordered her to return to work by February 6, 1987, or face suspension.

In the meantime, petitions calling for McGhee’s dismissal continued to circulate. On February 6 “someone fired a bullet through the windshield of Mrs. McGhee’s automobile as she returned from Dr. Beale’s office.” Id. The harassment of McGhee also took other forms, not in and of themselves life-threatening, but certainly calculated to humiliate and ostracize her:

[For example,] buttons were sold on school property and at school ball games, at which members of the Board of Education were in attendance, commemorating the shooting. One type button said T didn’t shoot Ann McGhee, I tried but missed.’ Another ‘had a head on them with a slash mark through them that said no love lost for Ann McGhee.’

Id.

When McGhee did not return to work on February 6, 1987, she was suspended. On April 8, 1987, the school board discharged her for “abandonment of her position, refusal to return to work, insubordination, and dereliction of duties.” Id. at 356.

A week or so later, McGhee filed suit in chancery court, challenging her discharge by the school board. In June 1987, the chancellor ruled in her favor, finding that she had been wrongfully terminated. We affirmed, holding that McGhee “should be reinstated without the loss of any salary or perquisites of office.” Id. In addition, we declined to allow an offset to the extent of a workers’ compensation award that McGhee had secured in the meantime, holding that “if any offset were appropriate, it should have been sought in the workers’ compensation case,” not in the suit for reinstatement. Id. at 356-357.

The workers compensation case mentioned in McGhee I had actually been initiated in April 1987, shortly after McGhee filed the reinstatement action. As the basis for her compensation claim, McGhee alleged that she was totally and permanently disabled from teaching as the result of the circumstances leading to her discharge. At trial in November 1987, she presented the testimony of her psychiatrist, Dr. Beale, to support her claim.

The chancellor found in McGhee’s favor, awarding her temporary total disability benefits from January through November 30, 1987, the date of the hearing, and permanent partial disability benefits equal to 50 percent of the body as a whole.

The workers’ compensation judgment was not appealed, but in February 1988, the chancellor heard McGhee I on remand from this Court. In calculating the amount of back pay to be awarded McGhee, the chancellor made certain adjustments to avoid “double recovery” of salary and compensation benefits.

McGhee appealed, and although we affirmed the chancellor’s ruling on “double recovery,” we again emphasized that McGhee should receive “all perquisites and benefits” that she would have received but for her wrongful discharge. We reiterated that she was entitled to reinstatement, and we observed that “Mrs. McGhee has been treated reprehensibly by the Campbell County School Board.” McGhee II, 785 S.W.2d at 819 (emphasis added).

Despite her repeated victories in court, McGhee’s battle with the school board continued. The opinion in McGhee I was released on June 27, 1988, directing the teacher’s immediate reinstatement. At that point, according to her physician, Dr. Beale, McGhee was not well enough to resume teaching. Consequently, on August 18, 1988, she sent a letter to the school board asking for a one-year medical leave of absence from her position as “Senior English Teacher at Campbell County Comprehensive High School.” The minutes of the school board indicate that on October 21, 1988, the board “approve[d] a medical leave of absence for Anne McGhee, English Teacher at Campbell County High School, for the 1988-89 school year.”

The following summer, on July 29, 1989, McGhee’s lawyer sent a letter to Carl Baird, superintendent of the Campbell County Schools, notifying him that “Ms. McGhee desires to return to her position as a senior English teacher at Campbell County Comprehensive High School and that she will attempt to return to her teaching duties effective the beginning of the 1989-1990 academic year.” The letter asked Baird to “[pjlease let us know the room to which Ms. McGhee will be assigned.”

Baird did not reply to McGhee’s letter immediately. Indeed, the opening of school in August 1989 came and went, and despite repeated inquiries by McGhee’s attorney, no word from Baird or the school board was forthcoming. Finally, on October 9, 1989, Baird sent McGhee a response, as follows:

This letter will serve as official notification that you are hereby being placed back into the Campbell County School System. The location is Wynn-Habers-ham School. You are to report [there] on Monday, October 16, 1989.

McGhee and her attorney immediately contacted the principal at Wynn-Habersham and were told that McGhee would be assigned to the only available opening there, which was a fifth grade elementary school class.

Dissatisfied with this assignment, McGhee’s lawyer wrote Baird on October 13, 1989, pointing out that because his client had been granted a one-year medical leave of absence, she was entitled under T.C.A. § 49-5-705 to return to the same position from which she had been granted leave. He told Baird that McGhee was standing on her statutory right to be returned to her old job.

Moreover, he pointed out that her assignment to Wynn-Habersham was not even a “comparable position” under T.C.A. § 49-5-705, because it was for a position for which she was not even certified. In a long letter explaining McGhee’s position, her lawyer politely but firmly relayed his client’s decision not to accept the Wynn-Habersham assignment.

There was no response from the board. Two weeks later, McGhee’s attorney filed suit on her behalf in chancery court, claiming breach of her employment contract and violation of state law, specifically the provisions in T.C.A. § 49-5-705.

In its answer to McGhee’s complaint, the school board took the first of four different (and not always consistent) positions that it was to argue during the litigation of this matter, i.e., that McGhee’s leave of absence was for more than 12 months and, thus, under T.C.A. § 49-5-705 she was not entitled to be restored to the same position she had originally held, but could be returned to “a comparable position.” The school board insisted that her assignment to Wynn-Habersham School was a position “comparable” to her former assignment as a senior English teacher.

To support its contention that the legal obligation to McGhee could be discharged by her assignment to a similar, but not necessarily the same position, the school board attached as an exhibit to its answer a written opinion received from Robert Sharp, legal counsel to the Tennessee State Department of Education. In a letter dated October 4, 1989, to Superintendent Baird, Sharp acknowledged that the county board of education “must offer Ms. McGhee a position this current year in an area in which she is certified.’’ (Emphasis added.) Apparently misinformed about the facts of McGhee’s leave, however, Sharp went on to opine that “[h]aving been on leave for more than a year, she is not entitled to return to the same position she held prior to her wrongful discharge.”

Despite its initial insistence that McGhee’s leave was for more than a year and its reliance on Sharp’s legal advice, the school board apparently realized at an early stage in the litigation that the facts plainly did not support such a defense, and the board soon abandoned this position. Indeed, at trial, Superintendent Baird testified unequivocally that McGhee’s leave qualified as a one-year leave of absence for health reasons, beginning in August 1988. The term of the leave cannot have exceeded a year, since McGhee was not reinstated to her teaching position until McGhee I became final in June 1988.

In its answer to McGhee’s pre-trial request for admissions, the board admitted that her leave was for no more than the 12-month limit specified in the statute, but set up a new theory of defense. The board contended that McGhee had no right to resume her former position as a senior English teacher at the high school because of “the facts and circumstances of this case.”

Of the four different defenses raised during the course of these proceedings, this contention undoubtedly comes closest to reflecting the real reason for McGhee’s reassignment to Wynn-Habersham School, even though it is legally the weakest of all the arguments made by the board. At trial, Superintendent Baird explained the special circumstances, as follows:

The Board instructed me at that time [following receipt of Sharp’s October 6 letter] that Mrs. McGhee would be placed back into the school system. They did not direct what position or what school.... I tried to consider what was, in my opinion, the best situation for [the] Campbell County School System as far as Ms. Anne McGhee being placed. I knew that she had requested to be placed back in the Comprehensive High School. I also knew the history of the problem that had been involved at the Comprehensive High School and I knew the problems it had caused with the school ... and the attitudes of teachers and students there at the school toward Ms. McGhee. I was personally acquainted with Ms. McGhee. I felt like, for the benefit of the school, for the benefit of Ms. McGhee, that she should be placed in another ... school to teach.

Reminded that McGhee was not certified to teach elementary education and had, in fact, never taught an elementary class, Baird disclaimed any responsibility for her actual teaching assignment at Wynn-Ha-bersham School, on the ground that he had directed the principal there to assign McGhee to teach in an area for which she was certified and was told by the principal that he would try to “work her into [such] a position.” Baird’s testimony indicates that he reached the dubious conclusion that as long as McGhee was placed in a teaching position of some kind in Campbell County, at the same salary and with the same benefits she would have received for teaching English at the senior high school, the board’s obligation to her was satisfied, regardless of the provisions of § 49-5-705.

By the time trial concluded, however, the board had once again shifted its theory of defense. Counsel argued in closing that the dispositive issue in the case was the sufficiency of McGhee’s original request for leave of absence in August 1988. Under T.C.A. § 49-5-702(c), an application for leave must contain “(1) A description of the type of leave requested; (2) The requested dates for beginning and ending the leave; and (3) A statement of intent to return to the position from which leave is granted.”

The board’s attorney argued that although the first two requirements of subsection (c) had been met, the letter from McGhee’s lawyer did not contain an express statement of her intent to return to work at the end of the period of requested leave, and thus the requirements of § 49-5-705 were never triggered. Counsel for McGhee responded, correctly we think, that any such technical deficiency was cured when in response to her request, the board specifically granted McGhee a one-year medical leave of absence from her position as a senior English teacher at the high school.

Certainly, the chancellor was not convinced by this argument alone. Although he ruled in the board’s favor, dismissing McGhee’s complaint, he did so on an entirely different basis from any of the theories propounded in the pleadings or at trial as a defense to McGhee’s claim. In his memorandum opinion and final order of judgment, the chancellor held that McGhee was not entitled to reinstatement under § 49-5-705 because she had failed to prove that she was sufficiently recovered from the disability for which she had previously been awarded workers’ compensation benefits. The chancellor noted that at' the previous hearing on the workers’ compensation claim, McGhee had testified “unequivocally that she was unable to teach and could not again teach.” The chancellor reiterated his opinion, expressed at that hearing, that McGhee was “attempting to convert her ‘position into one of permanent retirement at full pay.’ ” In this regard, he pointed to McGhee’s letter notifying the board that she wished to resume her previous teaching position and noted that it did no more than express a desire, “to attempt” to return to work. He ended his order by accusing McGhee of “manipulatfing] the tenure statutes by taking contrary, rotative positions about her ability to teach,” because she had previously “sworn at great length that she [was] permanently unable to teach” but now sought reinstatement to her original teaching position.

The chancellor failed to note that he himself had heard the workers’ compensation claim and had found McGhee less than totally disabled. He also failed to note the fact that two years had elapsed since the workers’ compensation matter had been decided.

On appeal, the school board has changed its theory of defense yet again, echoing the chancellor’s findings and arguing as a basis for denying reinstatement that McGhee did not prove at trial that she was medically able to resume teaching. What this argument overlooks, however, is the plain fact that the school board must have concluded that McGhee was sufficiently recovered to resume teaching, based on the report from Dr. Beale that she submitted to the board in connection with her letter of July 29, 1989. This is evident from the fact that the board subsequently voted to place McGhee back in the school system as a regular teacher and that Superintendent Baird actually assigned her to teach at Wynn-Habersham School. Insofar as the chancellor’s decree rests on the theory of medical disability as a ground for denying McGhee the relief she seeks under T.C.A. § 49-5-705, we conclude that the legal analysis is flawed and that on the facts, the evidence preponderates to the contrary.

We further conclude that in dismissing McGhee’s claim in this case largely on the basis of the proof in the workers’ compensation action, the chancellor lost sight of the rulings in McGhee I and McGhee II. The entire chain of events involving Anne McGhee and her status as a teacher began when school officials took action against her that we later characterized as “reprehensible.” There is a clear recognition in McGhee I that her original termination was wrongful. There is an equally clear finding in McGhee II that the circumstances surrounding that wrongful termination were so psychologically devastating that McGhee was unable to return to work for a period of time. This Court has stated unequivocally in both McGhee I and McGhee //that Anne McGhee is entitled to be “reinstated without the loss of any salary or perquisites of office,” 753 S.W.2d at 356, and specifically that she must be “reinstate[d] ... to her teaching position at the Campbell County Comprehensive High School with all perquisites and benefits.” 785 S.W.2d at 818. That is, put bluntly, the law of the case.

It is unfortunate for all concerned that we are now forced to make the same finding yet a third time. The school board apparently acted on poor advice from the Tennessee Department of Education, whose legal counsel in turn had been given misinformation from Superintendent Baird. Baird was undoubtedly sincere, if paternalistic, when he testified that in assigning McGhee to another school, he was only trying to do what he thought was best for the school system and for her. If Anne McGhee had been willing to accept reassignment, there would, of course, have been no need for further litigation. But the new assignment turned out to be one for which she was not certified and for which she had no prior experience. Hence, she elected to stand on her rights under the statute. If McGhee is denied relief at this juncture, she will finally be eliminated altogether from the Campbell County school system, which is exactly the result intended by those who originally clamored for her discharge in 1987.

School officials must, of course, be allowed sufficient latitude to do what they think is best for their individual school systems. But in making administrative decisions affecting the assignment of teachers, they must also observe state law regarding personnel matters. In this case, the school board exercised its discretion under T.C.A. §§ 49-5-702 and 703 and granted Ann McGhee a medical leave from her position as senior English teacher for the school year 1988-89. When she notified the board at the end of that one-year leave that she wished to resume her position for the 1989-90 school year, and no question was raised about her ability to do so, the board lacked discretion under the facts presented in this record to assign her to a position other than the one from which she had been granted leave, as required by T.C.A. § 49-5-705. At that time, McGhee’s former position had been filled by a temporary teacher, and McGhee could have been reinstated without serious disruption in personnel. Any disruption now caused by the passage of time is regrettable, but it cannot be attributed to Anne McGhee, nor should she be made to suffer for it.

We therefore remand this case to the trial court for entry of an order directing the appellant’s reinstatement to her position as senior English teacher at the Campbell County Comprehensive High School, and for calculation of the damages to which she is entitled. Those damages are to be measured by the standard set out in Frye v. Memphis State University, 806 S.W.2d 170 (Tenn.1991), involving the wrongful discharge of a tenured university professor.

In Frye, we held that “[w]hen an employee has been wrongfully terminated, the measure of damages is the amount the employee would have earned had the employer not dismissed him, less what would have been earned, or might have been earned, in some other employment, by the exercise of reasonable diligence.” Id. at 173. We noted, however, that “[a]n employee is not required to go to heroic lengths in attempting to mitigate his damages, but only to take reasonable steps in doing so.” Id. Nor is the employee “required to mitigate damages by accepting a position that is not comparable or is, in effect, a demotion.” Id. Moreover, “[t]he burden is on the employer to establish that the employee failed to exercise reasonable diligence in mitigating damages.” Id.

Because it would have been virtually impossible for Anne McGhee to acquire another teaching position for the 1989-1990 school year, given the fact that the academic year was well under way by the time she was constructively discharged by Baird’s letter of October 9, 1989, we hold that McGhee is entitled to receive the equivalent of her salary and benefits for that year, without diminution of any kind.

As for the two ensuing school years, 1990-1991 and 1991-1992, we cannot predict what the proof will show on remand, but we suggest that at a minimum, the Frye rule would not require Anne McGhee to accept a teaching assignment within the Campbell County School System that was not “comparable” to her former position as a senior English teacher, or one for which she was not certified to teach. Nor would it force her to accept a comparable teaching position outside Campbell County, unless it can be established that one was available “within a reasonable distance from the Plaintiff's residence.” Frye, supra, at 174-175. However, if the proof shows that Anne McGhee did accept a teaching position in another school system, or that she has been gainfully employed in some other capacity, her income from that employment must be calculated to offset the amount otherwise due McGhee for her lost salary and the value of her employment benefits from August 1990 to the end of the 1992 school year.

The judgment of the trial court is reversed, and the case is remanded for further proceedings in conformity with the instructions set out in this opinion. Costs in both this court and the trial court will be borne by the appellees.

REID, C.J., and DROWOTA and ANDERSON, JJ., concur. O’BRIEN, J., concurs and dissents in part (see separate opinion).