Pamela Dallas v. Shelby County Board of Education ( 2019 )

08/19/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 20, 2019 Session
PAMELA DALLAS v. SHELBY COUNTY BOARD OF EDUCATION
Appeal from the Chancery Court for Shelby County
No. CH-16-1736-3 JoeDae L. Jenkins, Chancellor
___________________________________
No. W2018-01661-COA-R3-CV
___________________________________
Dismissed teacher filed an action against the school board under the Teacher Tenure Act,
or alternatively, under the Continuing Contract Law. The board of education filed a
motion for summary judgment as to both claims, which the trial court ultimately granted.
We conclude that the trial court did not err in granting summary judgment under the
Teacher Tenure Act because the plaintiff teacher was not tenured at the time of her
dismissal. However, we reverse the grant of summary judgment on the plaintiff teacher’s
claim under the Continuing Contract Law.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part; Reversed in Part
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and KENNY ARMSTRONG, JJ., joined.
Richard L. Colbert and C. Joseph Hubbard, Nashville, Tennessee, for the appellant,
Pamela Dallas.
Stephanie Denzel, Memphis, Tennessee, for the appellee, Shelby County Board of
Education.1
OPINION
BACKGROUND
1
No attorney for the Shelby County Board of Education appeared at oral argument. Following
oral argument, Attorney Kenneth M. Walker, III filed a notice of appearance on behalf of the Shelby
County Board of Education.
Plaintiff/Appellant Pamela Dallas was employed by the Shelby County Schools
from the mid-1990’s until 2007. At the time of her voluntary resignation, she was a
tenured teacher in good standing. Ms. Dallas thereafter taught for one year in the
McNairy County School District.
Next, Ms. Dallas taught with the Shelby County Schools for a portion of both the
2008-2009 school year and the 2009-2010 school years. Ms. Dallas thereafter taught with
the Shelby County Schools for the entirety of the 2010-2011 school year; however, Ms.
Dallas’s contract was not renewed after an unsatisfactory performance evaluation.
Although Ms. Dallas attempted to contest the nonrenewal, it was upheld. Ms. Dallas
admits that she was not tenured during the 2008-2009, 2009-2010, or 2010-2011 school
years.
Ms. Dallas then sought employment with the Memphis City Schools, where she
taught for a portion of the 2011-2012 school year. Although she worked for the Memphis
City Schools for the entire 2012-2013 school year, Ms. Dallas changed to a different
school on multiple occasions, eventually landing at Willow Oaks Elementary School
(“Willow Oaks”). Ms. Dallas continued teaching at Willow Oaks, where she remained for
the 2012-2013, 2013-2014, and 2014-2015 school years. During this time frame,
however, the administration of Willow Oaks transferred from the Memphis City Schools
to the Shelby County Schools.2 As such, while Ms. Dallas was employed by the Memphis
City Schools for the 2012-2013 school year, she was a Shelby County Schools employee
for the 2013-2014 and 2014-2015 school years. In April 2015, Ms. Dallas received oral
notice that her position at Willow Oaks was to be eliminated. On or around May 18,
2015, Ms. Dallas filed a grievance to contest the fact that she had been “excessed.”
Specifically, Ms. Dallas requested to stay at Willow Oaks or to be assigned to another
school. The grievance was initially denied on May 21, 2015, but Ms. Dallas appealed. On
or about June 16, 2015, Ms. Dallas’s grievance was again denied, noting that Ms. Dallas
was the lowest evaluated teacher for her grade at Willow Oaks.3
2
On September 28, 2011, a consent decree was entered in federal litigation between the Board of
Education of Shelby County and the Memphis City Board of Education providing for consolidation of the
two school systems. Bd. of Educ. of Shelby Cty., Tennessee v. Memphis City Bd. of Educ., No. 11-2101,
2011 WL 13130644, at *4 (W.D. Tenn. Sept. 28, 2011). The consent decree provided that, effective
October 1, 2011, both the Memphis and Shelby County school systems would be governed by the Shelby
County Board of Education. Id. However, the two school systems were to “remain separate school
systems until they are combined at the start of the school year in 2013.” Id. at *5. A new Shelby County
Board of Education would be elected in August 2012 to administer the consolidated school system. Id. As
discussed in detail infra, the parties dispute whether the post-consolidation Shelby County Schools was
merely a continuation of the pre-consolidation Shelby County Schools or an entirely new system.
3
The documents surrounding the grievance also noted that while Ms. Dallas was “excessed” due
to the elimination of a position at Willow Oaks, another teacher later resigned, leaving an open position.
Rather than re-employ Ms. Dallas, the principal was allowed to post the position.
-2-
Meanwhile, on June 12, 2015, Shelby County Schools sent a letter by registered
mail notifying Ms. Dallas that her contract was not renewed. Although the letter was
attempted to be delivered on June 15, 2015, at Ms. Dallas’s proper address, the letter
went unclaimed. Another letter was sent to Ms. Dallas concerning the termination of her
contract on August 25, 2015. Ms. Dallas was not reemployed by the Shelby County
Schools following the 2014-2015 school year, but did attain another position with a
different school system.
On November 10, 2016, Ms. Dallas filed an action against the Shelby County
Board of Education (“the Board of Education” or “the Board”) in Shelby County
Chancery Court to contest her dismissal. Ms. Dallas thereafter filed an amended
complaint on February 14, 2017. Therein, Ms. Dallas asserted that she obtained tenure at
the end of the 2013-2014 school year and was dismissed without charges in violation of
the Teacher Tenure Act. In the alternative, Ms. Dallas asserted that the notice of
nonrenewal violated the Continuing Contract Law. Eventually, the Board of Education
filed a motion for summary judgment on the basis that, inter alia, Ms. Dallas was not a
tenured teacher entitled to relief under that Act. In support, the Board’s statement of
undisputed material facts noted that it was undisputed that in September 2014, the Board
of Education voted to grant tenure to a number of eligible teachers, but Ms. Dallas was
not named on a list of teachers granted tenure. Moreover, Ms. Dallas did not dispute that
she never received any written notification that she had been granted tenure while
teaching at Willow Oaks. Ms. Dallas asserted, however, that by the time her employment
was terminated, she “already had tenure during the 2014-2015 school year since she
completed her second probationary year following the 2013-2014 school year and was
reemployed for the following year.” The Board also argued that Ms. Dallas was not
entitled to rely on the Continuing Contract Law or, in the alternative, that it was not
violated. The trial court granted the Board of Education’s motion, dismissing Ms.
Dallas’s claims under both the Teacher Tenure Act and the Continuing Contract Law.
Ms. Dallas thereafter appealed.
ISSUES PRESENTED
Each party raises a number of lengthy issues. In the interest of brevity, we
summarize the issues as follows:
1. Whether the trial court correctly granted summary judgment as to Ms. Dallas’s
claim under the Teacher Tenure Act by concluding that Ms. Dallas was not a
tenured teacher at the time of her dismissal.
2. In the alternative, whether the trial court erred in concluding that Ms. Dallas
cannot prevail on her claim under Continuing Contract Law with regard to the
notice of nonrenewal sent to Ms. Dallas at the conclusion of the 2014-2015 school
year.
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STANDARD OF REVIEW
This case was decided on a motion for summary judgment. Summary judgment is
appropriate where: (1) there is no genuine issue with regard to the material facts relevant
to the claim or defense contained in the motion; and (2) the moving party is entitled to
judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P. 56.04. In cases
where the moving party does not bear the burden of proof at trial, the movant may obtain
summary judgment if it: (1) affirmatively negates an essential element of the nonmoving
party’s claim; or (2) demonstrates that the nonmoving party’s evidence at the summary
judgment stage is insufficient to establish an essential element of the nonmoving party’s
claim. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn.
2015), cert. denied, 136 S. Ct. 2452, 195 L. Ed. 2d 265 (Tenn. 2016).
On appeal, this Court reviews a trial court’s grant of summary judgment de novo
with no presumption of correctness. Rye, 477 S.W.3d at 250 (citing Bain v. Wells, 936
S.W.2d 618, 622 (Tenn. 1997)). In reviewing the trial court’s decision, we must view all
of the evidence in the light most favorable to the nonmoving party and resolve all factual
inferences in the nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn.
1999); Muhlheim v. Knox Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the
undisputed facts support only one conclusion, then the court’s summary judgment will be
upheld because the moving party was entitled to judgment as a matter of law. See White
v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150,
153 (Tenn. 1995). When a moving party has filed a properly supported motion for
summary judgment, the nonmoving party must respond by pointing to specific evidence
that shows summary judgment is inappropriate. Rye, 477 S.W.3d at 264–65.
To the extent that this case requires that we construe statutes, our review is also de
novo. Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911–12 (Tenn. 2000) (“Issues of
statutory construction are questions of law and shall be reviewed de novo without a
presumption of correctness.”). In construing statutes, we keep the following guidance in
mind:
Our resolution of this issue is guided by the familiar rules of
statutory construction. Our role is to determine legislative intent and to
effectuate legislative purpose. The text of the statute is of primary
importance, and the words must be given their natural and ordinary
meaning in the context in which they appear and in light of the statute’s
general purpose. When the language of the statute is clear and
unambiguous, courts look no farther to ascertain its meaning. When
necessary to resolve a statutory ambiguity or conflict, courts may consider
matters beyond the statutory text, including public policy, historical facts
relevant to the enactment of the statute, the background and purpose of the
statute, and the entire statutory scheme. However, these non-codified
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external sources “cannot provide a basis for departing from clear codified
statutory provisions.”
Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012) (citations omitted).
DISCUSSION
I.
Ms. Dallas’s primary claim in this case is that she could not be terminated without
compliance with the notice and hearing provisions of the Teacher Tenure Act. See Tenn.
Code Ann. § 49-5-511(a) (stating that no teacher may be dismissed except on the basis of
“incompetence, inefficiency, neglect of duty, unprofessional conduct, and
insubordination”); Tenn. Code Ann. § 49-5-512(a) (stating that tenured teachers who are
provided with notice of charges are entitled to demand a full hearing). Of course, in order
to prevail on her Teacher Tenure Act claim, Ms. Dallas must show that she was, in fact, a
tenured teacher at the time of her dismissal. Here, there is no dispute that Ms. Dallas left
the Shelby County Schools in 2007 as a tenured teacher. As such, she asserts that she was
entitled to, and completed, a shortened probationary period by the time of the end of the
2013-2014 school year. When she was reemployed the following school year, Ms. Dallas
contends that she was effectively tenured.
The Board of Education disagrees, arguing that Ms. Dallas was neither entitled to
nor did she complete any shortened probationary period by the end of the 2013-2014
school year. Moreover, the Board of Education insists that regardless of the passage of
time, Ms. Dallas could not attain tenure without the recommendation of the director of
schools and the election of the Board of Education, neither of which has been shown in
this case.
The Teacher Tenure Act contained the following qualifications necessary to attain
tenure at the time Ms. Dallas asserts that she acquired that status:
Any teacher who meets all of the following requirements is eligible for
“tenure”:
(1) Has a degree from an approved four-year college or any career and
technical teacher who has the equivalent amount of training established and
licensed by the state board of education;
(2) Holds a valid teacher license, issued by the state board of education,
based on training covering the subjects or grades taught;
(3) Has completed a probationary period of five (5) school years or not less
than forty-five (45) months within the last seven-year period, the last two
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(2) years being employed in a regular teaching position rather than an
interim teaching position;
(4) Has received evaluations demonstrating an overall performance
effectiveness level of “above expectations” or “significantly above
expectations” as provided in the evaluation guidelines adopted by the state
board of education pursuant to § 49-1-302, during the last two (2) years of
the probationary period; and
(5) Is reemployed by the director of schools[4] for service after the
probationary period.
Tenn. Code Ann. § 49-5-503(a) (2014);5 see also Tenn. Code Ann. § 49-5-504(a) (2014)
(stating that a certain number of years served as a probationary teacher and a sufficient
evaluation score must be met “prior to becoming eligible for tenure”).6
There is no dispute that Ms. Dallas meets the first two requirements. Instead, one
of the central disputes7 of Ms. Dallas’s Teacher Tenure Act claim is whether she
completed a sufficient probationary period. Specifically, Ms. Dallas contends that her
probationary period was completed at the end of the 2013-2014 school year and that her
tenure status was cemented when she was reemployed the following year. In support, Ms.
Dallas relies on the shortened probationary period contained in Tennessee Code
Annotated section 49-5-504(d):
A teacher who has attained tenure status in a school system and later
resigns from the system shall serve a two-year probationary period upon
reemployment by the system, unless the probationary period is waived by
the board of education upon request of the director of schools. Upon
completion of the two-year probationary period, the teacher shall be eligible
for tenure and shall be either recommended by the director of schools for
tenure or nonrenewed; provided, however, that the teacher cannot be
continued in employment if tenure is not granted by the board of
education.8
4
Tennessee Code Annotated section 49-2-301(a) states that the director of schools may also be
referred to as superintendent.
5
Section 49-5-503 was amended in 2015. See 2015 Tenn. Laws Pub. Ch. 158 (H.B. 108)
(effective April 26, 2015). No party asserts that the amendment is relevant to this appeal.
6
Again, section 49-5-503 was amended in 2015 but is not relevant to this appeal. See 2015 Tenn.
Laws Pub. Ch. 158 (H.B. 108).
7
The parties also disputed Ms. Dallas’s evaluation scores. Because of how we resolve this appeal,
however, we will not tax the length of this Opinion with facts relevant to that issue.
8
Prior to July 1, 2011, the probationary period was merely one year. See Tenn. Code Ann. § 49-
5-504 (2010); see also 2011 Tenn. Laws Pub. Ch. 70 (S.B. 1528) (effective July 1, 2011).
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Thus, as we perceive it, Ms. Dallas argues that when she was employed by the Memphis
City Schools in 2012-2013, this two year probationary period began to run and ended at
the end of the 2013-2014 school year.
The Board of Education makes several arguments in response to Ms. Dallas’s
assertion. First, the Board of Education contends that once Ms. Dallas was dismissed by
the Shelby County Schools for the 2010-2011 school year, Ms. Dallas could no longer
rely on any probationary period permitted by section 49-5-504(d). In essence, the Board
of Education argues that Ms. Dallas most recently left employment with the Shelby
County Schools as a non-tenured teacher and therefore is not entitled to a shortened
probationary period upon reemployment. Under this theory, Ms. Dallas was a new hire
subject to a five-year probationary period, which was undisputedly not met at the time of
Ms. Dallas’s dismissal.
The Board also argues that Ms. Dallas cannot rely on any shortened probationary
period because she was never reemployed by the same system due to the change in the
school systems following the merger of the Memphis City and Shelby County Schools.
As previously discussed, section 49-5-504(d) states that where a teacher has “attained
tenure status in a school system[,]” a shortened probationary period is applicable “upon
reemployment by the system.” In support, the Board notes that the consent decree that
created the consolidated Shelby County Schools provided that the consolidated school
system would be operated by a separate, newly constituted Board of Education. As such,
the Board asserts that “[a]s an employee of a new district, . . . which did not exist prior to
July 1, 2013, [Ms. Dallas] could not take advantage of the shortened probationary period
for previously employed and tenured employees.” Again, under this theory, the five-year
probationary period would apply.
Moreover, the Board argues that even if pre-consolidation Shelby County Schools
and post-consolidation Shelby County schools are considered the same “system,” Ms.
Dallas’s employment with the pre-consolidation Memphis City Schools is nevertheless
not applicable for purposes of determining whether she met any probationary period.
Here, in order for Ms. Dallas to prevail in her argument that she was eligible for tenure at
the end of the 2013-2014 school year, she must necessarily include her employment for
the 2012-2013 school year to reach the two-year probationary period. Of course, Ms.
Dallas was not employed by the Shelby County Schools during this time, but the
Memphis City Schools. It is undisputed that Memphis City Schools and Shelby County
Schools were separate and distinct “systems” during the 2012-2013 school year. See Bd.
of Educ. of Shelby Cty., Tennessee v. Memphis City Bd. of Educ., No. 11-2101, 2011
WL 13130644, at *5 (W.D. Tenn. Sept. 28, 2011) (“The Memphis and Shelby County
school systems shall remain separate school systems until they are combined at the start
of the school year in 2013.”). Moreover, Ms. Dallas admitted in her deposition that she
was a “new hire” of the Memphis City Schools when she began her employment there.
Thus, considering the language of section 49-5-504(d) in isolation, Ms. Dallas cannot
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rely on employment by a different system to meet her probationary period for purposes of
section 49-5-504(d). Thus, at the end of the 2012-2013 school year, Ms. Dallas was
merely one year into the five-year probationary period applicable to new hires, Tenn.
Code Ann. § 49-5-503(a)(3), rather than one year into the two-year shortened
probationary period applicable in the context of “reemployment.” Tenn. Code Ann. § 49-
5-504(d).
Ms. Dallas contends, however, that section 49-5-504(d) cannot be read in
isolation, but must be considered in conjunction with Tennessee Code Annotated section
49-5-203, which provides as follows:
(a) The change in the governmental structure of a school system or
institution through the process of annexation, unification, consolidation,
abolition, reorganization, transfer of the control and operation of a school
system or institution to a different type governmental structure,
organization or administration, or creation of a city school system shall not
impair, interrupt or diminish the rights and privileges of a then existing
teacher; and such rights and privileges shall continue without impairment,
interruption or diminution.
(b) If the teacher becomes the employee of another school system or
institution as a result of a change in the governmental structure, then the
rights and privileges of the teacher shall continue without impairment,
interruption or diminution as obligations of the new government,
organization or administration.
(c) “Rights and privileges,” as used in this section, includes, but is not
limited to, salary, pension or retirement benefits, sick leave accumulation,
tenure status and contract rights, whether granted by statute, private act or
governmental charter.
Thus, Ms. Dallas asserts that she “was entitled to have her 2012-2013 service in the
Memphis City School System treated as the first of those two years of probationary
service” required under section 49-5-504(d).
The Board responds that probationary status is not a “right” under section 49-5-
203(c). In support, the Board notes that probationary status is generally defined as the
lack of tenure. See Tenn. Code Ann. § 49-5-501(9) (defining probation as “a condition
and period of trial during which a teacher is under observation to determine the teacher’s
fitness for tenure status”); Tenn. Code Ann. § 49-5-501(10) (defining tenure as “the
employment status other than probation that a teacher may be under while teaching in the
public schools”). Moreover, the Board notes that probationary status cannot constitute a
“right” where achieving tenure following the completion of the probationary period is
subject to other requirements, discussed in detail infra.
-8-
Regardless, we cannot conclude that Ms. Dallas’s probationary status was
protected in the manner that she suggests. Here, as previously discussed, at the time of
the merger, the only probationary status that Ms. Dallas had achieved was one year into a
five-year probationary period. Essentially, Ms. Dallas contends that under section 49-5-
203, she is entitled to claim both the one year in service to a separate school system and
the two-year probationary period upon reemployment by the Shelby County Schools.
Respectfully, we cannot agree. Although the statute is remedial, and therefore broadly
construed, its purpose is “to ensure that no rights of the former teachers of one school
system would be diminished by the transfer of that system to another.” Knox Cty. v. City
of Knoxville, No. C.A. 736, 1987 WL 31640, at *6 (Tenn. Ct. App. Dec. 30, 1987), aff’d
as modified and remanded, 786 S.W.2d 936 (Tenn. 1990); see also Wagner v.
Elizabethton City Bd. of Ed., 496 S.W.2d 468, 471 (Tenn. 1973) (holding that a “transfer
of the control and operation of the school should not impair, interrupt, or diminish their
rights and privileges, including their tenure status”). However, “[section] 49-5-203 gives
a teacher no greater rights against her new employer than those she would have had
against her former employer.” Hardaway v. Bd. of Educ., Hamilton Cty. Sch., No.
E2003-01547-COA-R3-CV, 2004 WL 533941, at *4 (Tenn. Ct. App. Mar. 18, 2004). To
allow Ms. Dallas to utilize her year of employment with the Memphis City Schools upon
reemployment by the Shelby County Schools results in Ms. Dallas’s four years remaining
to be eligible for tenure reduced to merely a single year. Such a scenario clearly allows
Ms. Dallas to place herself in a better position with regard to her new employer than she
had against her previous employer. Nothing in section 49-5-203’s protection against the
impairment of existing rights or cited by Ms. Dallas leads us to conclude that such a
result is contemplated by this provision.
Based on the foregoing, even assuming both that Ms. Dallas was in fact
“reemployed” by the Shelby County Schools for the 2013-2014 school year and that Ms.
Dallas was at that time eligible for the two-year reduced probationary period, Ms. Dallas
was eligible for tenure, at the earliest, upon reemployment for the 2015-2016 school year.
See Tenn. Code Ann. § 49-5-504(a) (requiring that a teacher both complete the
probationary period and be reemployed after the probationary period to be eligible for
tenure). There is no dispute that Ms. Dallas was not reemployed by the Shelby County
Schools for the 2015-2016 school year. As such, she did not meet the requirements for
eligibility for tenure at the time of her dismissal.
Moreover, even if we were to conclude that Ms. Dallas was in some way eligible
for tenure upon her reemployment for the 2014-2015 school year, we would nevertheless
conclude that Ms. Dallas did not achieve tenure status. As previously discussed, sections
49-5-503(a) and -504(a) contain the requirements for tenure eligibility. Tenn. Code Ann.
§ 49-5-503(a) (noting that teacher who meets the requirements is “eligible” for tenure);
see also Tenn. Code Ann. § 49-5-504(a) (containing requirements that must be met to be
“eligible for tenure”). To be eligible generally means to be “[f]it and proper to be
selected” for an office or privilege. Black’s Law Dictionary 597 (9th ed. 2009) (emphasis
-9-
added). As such, the Tennessee Supreme Court has held long held that “local school
boards must take affirmative action in determining the fitness of teachers for tenure
status.” Snell v. Bros., 527 S.W.2d 114, 118 (Tenn. 1975). Consequently, “a teacher does
not acquire permanent tenure status by mere passage of time.” Id.
Ms. Dallas argues, however, that more recent changes to Tennessee law
particularly the 1992 enactment of the Education Improvement Act of 1992 (“the
Education Improvement Act”), show that Snell and its progeny are no longer good law.
We respectfully disagree. Various sections of the Tennessee law as it currently exists and
caselaw interpreting it make clear that eligibility alone does not confer tenure status on a
teacher. For example, section 49-5-504(b) specifically states that “[n]otwithstanding any
other law to the contrary, once a teacher is eligible for tenure, the teacher shall be either
recommended by the director of schools for tenure or nonrenewed[.]”Likewise,
Tennessee Code Annotated section 49-2-301(b)(1)(J) currently provides that it is the duty
of the director of schools to “[r]ecommend to the board teachers who are eligible for
tenure or notify such teachers of their failure of reelection pursuant to § 49-5-409[.]”9
Finally, Tennessee Code Annotated section 49-2-203(a)(1) provides that it is the duty of
the Board of Education to “[e]lect, upon the recommendation of the director of schools,
teachers who have attained or are eligible for tenure and fix the salaries of and make
written contracts with the teachers[.]” Compare Tenn. Code Ann. § 49-2-203(a)(1)
(stating that it is the “duty” of the board to elect teachers to tenure), with Tenn. Code
Ann. § 49-2-203(b)(8) (which states the board had the “power” to provide written notice
to non-tenured teachers of the reasons for the failure of reelection), and Washington Cty.
Educ. Ass’n v. Washington Cty. Bd. of Educ., No. E2018-01037-COA-R3-CV, 2019
WL 2537864, at *3 (Tenn. Ct. App. June 20, 2019) (which held that the board’s power to
provide written notice of reasons for reelection was merely discretionary).
A more recent case decided following the enactment of the Education
Improvement Act reaches the same result as Snell based in part on the above language.
See Ray v. Bd. of Educ. of Oak Ridge Sch., 72 S.W.3d 657 (Tenn. Ct. App. 2001). In
Ray, the plaintiff teacher was employed in the subject school system for the 1994-1995,
1995-1996, 1996-1997, and 1997-1998 school years. After her dismissal, the teacher filed
a complaint against the school board alleging a violation of the Teacher Tenure Act. The
trial court later granted summary judgment to the school board. Id. at 658.
9
Cases involving the necessity of the director’s recommendation prior to the enactment of the
Education Improvement Act are therefore not dispositive of this issue. For example, in Sanders v.
Vinson, 558 S.W.2d 838 (Tenn. 1977), the Tennessee Supreme Court held that while affirmative action
of the board is necessary, recommendation of the director is “not essential” to an employment or tenure
decision. Id. at 842. The Sanders decision was based on an earlier version of the statute that stated that it
was the board’s duty to assign to the superintendent the duty “[t]o recommend to the board of education,
supervisors, teachers, clerical assistants, and other employees in the schools[,]” which the court concluded
was “not related to tenure.” Id. In contrast, the current version of section 49-5-301(b)(1)(J) clearly creates
a duty on the director of schools relative to tenure.
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The question on appeal, like in this case, was whether the plaintiff had attained
tenure when she was discharged. The qualifications for tenure eligibility in section 49-5-
503 were very similar to the case-at-bar, requiring an appropriate college degree, a valid
license, the completion of a probationary period, and reemployment after the
probationary period. Id. (citing Tenn. Code Ann. § 49-5-503(2) (1997)). A different
version of section 49-5-504(b) provided at the time that “[u]pon completion of the
probationary period, any teacher who is reemployed or retained in the system is entitled
to the tenure status for which such teacher is qualified by college training and licensing;
provided, that the superintendent shall notify the board prior to reelection by the board
that the teacher, if reelected, will attain tenure status.” Id. at 663 (citing Tenn. Code Ann.
§ 49-5-504(b) (1997)). In affirming the trial court’s ruling that the plaintiff did not have
tenure at the time of her discharge, the Court cited Bowden v. Memphis Bd. of Educ., 29
S.W.3d 462 (Tenn. 2000), which the Ray court explained as follows:
[T]he plaintiff had not attained tenure merely by meeting the four
requirements of Tenn. Code Ann. § 49-5-503(2)(A)-(D). Id. [at 465.]
Instead, the Court held that a public school teacher’s “completion of the
probationary period by itself does not automatically confer permanent
tenure, but rather, is ‘merely a condition precedent to eligibility for
tenure.’” Id. (emphasis added) (quoting Sanders v. Vinson, 558 S.W.2d
838, 842 (Tenn.1977)). The “‘conference of tenurial status is dependent not
only upon service but also upon affirmative action by the Board of
Education.’” Id. (quoting Sanders v. Vinson, 558 S.W.2d at 842). The
Court concluded that Tenn. Code Ann. § 49-5-504(b) imposes a limitation
on § 49-5-503(2) in that it requires the superintendent to give notice to the
school board before a teacher may attain tenure. Id. at 465–66 (citing
Reeves v. Etowah City Sch. Bd. of Educ., 806 S.W.2d 176, 179
(Tenn.1991)). Because the superintendent had not recommended plaintiff
for tenure to the school board, the Bowden Court held that plaintiff had not
met all of the requirements for tenure. Id.
Ray, 72 S.W.3d at 663.
The Court further rejected the plaintiff’s claim that the Bowden holding was
abrogated by the passage of the Education Improvement Act. As the Ray court explained,
the 1992 act enacted sections 49-2-301(b)(1)(J)10 and 49-2-203(a)(1), which, as
previously discussed, place a duty on the director of schools to recommend a teacher for
tenure and a duty on the board of education to elect all teachers for tenure. In Ray,
however, the plaintiff asserted that the effect of the Education Improvement Act,
10
Section 49-2-301(b)(1)(J) was amended in 2001 to its current form. See 2001 Tenn. Laws Pub.
Ch. 211 (S.B. 290), eff. July 1, 2001. The language quoted in Ray is identical to the current version of the
statute.
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particularly sections 49-2-301(b)(1)(J) and 49-5-203(a)(1), was that “once a teacher is
eligible for tenure, the superintendent has no statutory authority to employ that teacher
again, and if the superintendent wishes that teacher to be rehired, the superintendent must
recommend that teacher for tenure to the school board.” Id. at 664. Because the
superintendent recommended the plaintiff teacher for rehire, this action was sufficient to
constitute notice to the board that reelection would result in tenure. Id.
The Court of Appeals, however, rejected the plaintiff’s argument, concluding
instead that completion of the necessary probationary period “is merely a condition
precedent to [a teacher’s] eligibility for tenure.” Id. Because the plaintiff had no proof
that the director of schools in fact gave notice to the Board of the plaintiff’s eligibility for
tenure, the plaintiff could not show that she met all of the requirements to achieve tenure
status. Id.
In reaching this result, we expressly held that Bowden remained good law despite
the passage of the Education Improvement Act. Id. (citing Fulks v. Watson, No. M1999-
02800-COA-R3-CV, 2001 WL 673573, at *4 (Tenn. Ct. App. June 18, 2001) (holding,
despite the passage of the Education Improvement Act, that “Tennessee law requires
actual notice to and affirmative action by a board of education before tenure is conferred”
and rejecting that plaintiff’s argument that rehire after the probationary period was
effectively a grant of tenure)). Thus, regardless of the passage of the Education
Improvement Act, current controlling Tennessee law mandates that employment
following the completion of the probationary period is not sufficient to confer tenure in
the absence of affirmative action on the part of both the director of schools and board of
education.
Ms. Dallas argues, however, that a more recent change to the Teacher Tenure Act
changes the result. As previously discussed, the Ray decision and the decisions on which
it relies, based their analysis in part on the version of section 49-5-504(b) in place at that
time, which provided as follows:
Upon completion of the probationary period, any teacher who is
reemployed or retained in the system is entitled to the tenure status for
which such teacher is qualified by college training and licensing; provided,
that the superintendent shall notify the board prior to reelection by the
board that the teacher, if reelected, will attain tenure status.
Ray, 72 S.W.3d at 663 (citing Tenn. Code Ann. § 49-5-504(b) (1997)). In 2006, however,
the General Assembly amended section 49-5-504 to delete the above language and
replace it with the following provision:
Notwithstanding any other provision to the contrary, upon the completion
of the statutory probationary period, any teacher eligible for tenure status
- 12 -
shall be either recommended by the director of schools for tenure or non-
renewed; provided, however, that the teacher cannot be continued in
employment if tenure is not granted by the board of education.
2006 Tenn. Laws Pub. Ch. 574 (S.B. 2781) (codified at Tenn. Code Ann. § 49-5-504(b)).
The 2006 amendment also added a shortened probationary period for reemployed
teachers, discussed supra. This change, Ms. Dallas argues, “eliminated the proviso that
was the subject of” Bowden and the cases that rely on it.
The trial court specifically rejected Ms. Dallas’s argument, concluding that
although the statute had been changed as to what affirmative action was required to
confer tenure, no change was made to the necessity of affirmative action. Like the trial
court, we do not agree with Ms. Dallas’s interpretation of the Teacher Tenure Act. In
Bowden and other cases prior to 2006, the superintendent or director of schools was
required to take affirmative action to confer tenure status on a teacher who met the
eligibility requirements—by notifying the board of education that reelection would result
in tenure. Bowden, 29 S.W.3d at 465. Following the 1992 enactment of the Educational
Improvement Act and the 2006 amendment to the Teacher Tenure Act, affirmative action
was still required to confer tenure on a teacher—in the form of a recommendation to the
board by the director of schools and an election of the teacher by the board of education.
As such, nothing in the statutes governing this issue convinces us that the requirement of
affirmative action to confer tenure had been altered so as to allow a teacher to gain tenure
merely by reemployment following the completion of an applicable probationary
period.11 Indeed, the limited caselaw to have considered the 2006 amendment to the
Teacher Tenure Act reached similar conclusions. See Barbee v. Union City Bd. of Educ.,
No. 11-1302, 2012 WL 12871902, at *4 (W.D. Tenn. Nov. 15, 2012), aff’d, 559 F. App’x
450 (6th Cir. 2014) (noting that the 2006 amendment did not result “in a fundamental
change in the way tenure is awarded in Tennessee”); Dunn v. Spivey, No. 2:09-0007,
2010 WL 3420343, at *5 (M.D. Tenn. Aug. 25, 2010) (noting “the absence of any
indication since the passage of the amended Section 504(b) that the scheme has
fundamentally changed”). The holding of Ray is therefore still applicable to Ms. Dallas’s
claim.
Ms. Dallas next argues that even assuming that affirmative action was indeed
required to confer tenure, the trial court erred in granting summary judgment to the Board
on this issue where the trial court improperly assigned “the burden of proof” to Ms.
Dallas. Rather, Ms. Dallas asserts that the burden should have been placed on the Board
to show that it did not affirmatively act to grant Ms. Dallas tenure due to the presumption
that public officials perform their duties in good faith. In Tennessee, public officials are
presumed to perform their duties in good faith, as well as to know and act in accordance
11
Of course, in this case, as we previously concluded, Ms. Dallas had not completed the
applicable probationary period at the time of her reemployment for the 2014-2015 school year.
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with the law. 421 Corp. v. Metro. Gov’t of Nashville & Davidson Cty., 36 S.W.3d 469,
480 (Tenn. Ct. App. 2000) (citing Williams v. American Plan Corp., 216 Tenn. 435, 441,
392 S.W.2d 920, 923 (Tenn. 1965); Reeder v. Holt, 220 Tenn. 428, 435–36, 418 S.W.2d
249, 252 (Tenn. 1967)); see also Martin v. Sizemore, 78 S.W.3d 249, 266 n.5 (Tenn. Ct.
App. 2001). Based on this doctrine, the Tennessee Supreme Court has held that in the
absence of evidence to that effect, we are not permitted to assume that a public official
was “derelict” in his or her duty. State ex rel. Biggs v. Barclay, 188 Tenn. 26, 31, 216
S.W.2d 711, 714 (Tenn. 1948).
Ms. Dallas contends that this presumption actually favors her argument that she
acquired tenure in this case because she was reemployed following the completion of the
applicable probationary period. As previously discussed, the Teacher Tenure Act
currently provides that when a teacher completes the applicable probationary period, the
director of schools has two options: the teacher shall be recommended for tenure status or
nonrenewed. Tenn. Code Ann. § 49-5-504(b). Under Ms. Dallas’s theory, by virtue of the
fact that she was reemployed for the 2013-2014 school year, we should presume that such
reemployment complied with section 49-5-504(b) and she was recommended for tenure.
Ms. Dallas’s argument fails in two respects. First, as discussed in detail supra, Ms. Dallas
was not reemployed following the completion of her probationary period. As such, her
reemployment at that time is not evidence that the director of schools recommended her
for, and the board elected to confer upon her, tenure status.
Moreover, we cannot conclude that the presumption of good faith operates in the
manner Ms. Dallas suggests. For one, as previously discussed, Tennessee law requires
both a recommendation and an election by the Board for a teacher to attain tenure status.
See Tenn. Code Ann. § 49-2-301(b)(1)(J); Tenn. Code Ann. § 49-2-203(a)(1). Even if we
were to conclude that the presumption of good faith requires us to conclude that, in the
absence of specific evidence to the contrary, that the director of schools recommended
Ms. Dallas for tenure, there is specific evidence in the record to show that the Board did
not in fact elect to confer tenure status on Ms. Dallas. Specifically, the record contains an
undisputed list of teachers that were granted tenure following the 2013-2014 school year;
Ms. Dallas was not among the teachers granted tenure. As such, to the extent that any
presumption requires us to assume that Ms. Dallas was granted tenure, specific evidence
is contained in the record to rebut that presumption. Finally, to hold that the mere
presumption of good faith allows Ms. Dallas to evade the mandates of both the Teacher
Tenure Act and the multitude of caselaw interpreting it would be to frustrate the clear
intent of the Tennessee General Assembly.
Here, the Board may be granted summary judgment where it demonstrates that
Ms. Dallas’s evidence is insufficient to establish an essential element of her claim.
Affirmative action by the director of schools and the Board of Education to confer tenure
is required to prevail on her claim under the Teacher Tenure Act. See Ray, 72 S.W.3d at
663. Here, the Board submitted undisputed evidence that Ms. Dallas’s proof was
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insufficient to demonstrate that these requirements were met, including evidence that her
name was not listed among those granted tenure, that Ms. Dallas never received any
written or oral notification that she had been granted tenure, and that Ms. Dallas has no
documents of any kind to support her claim of tenure. In order to avoid summary
judgment, Ms. Dallas was therefore required to set forth specific facts showing a genuine
issue for trial. Rye, 477 S.W.3d at 265 (stating that it is not enough to show metaphysical
doubt as to the facts). Based on the foregoing, Ms. Dallas has simply failed to meet that
burden. As such, the trial court did not err in denying Ms. Dallas’s claim predicated on
her status as a tenured teacher.
II.
Ms. Dallas next contends that the trial court erred in granting summary judgment
concerning her claim under the Continuing Contract Law, Tennessee Code Annotated
section 49-5-409. At the time Ms. Dallas’s employment contract was not renewed,
section 49-5-409 provided, in relevant part:
a) Teachers in service and under control of the public elementary and high
schools of this state shall continue in such service until they have received
written notice from their board of education or director of schools, as
appropriate, of their dismissal or failure of reelection.
(b) The notice must be received prior to June 15 to be applicable to the next
succeeding school year; provided, that the director of schools may transfer
any teacher from one (1) position to another at the director’s option.
Nothing contained in this section shall affect any rights that may have
accrued, or may hereafter accrue, on behalf of any teachers or principals in
any local school system under any law providing a tenure of office for the
teachers and principals.
Tenn. Code Ann. § 49-5-409 (2014).12 The trial court denied Ms. Dallas’s claim on two
bases. First, the trial court held that Ms. Dallas was not entitled to rely on the Continuing
Contract Law where she had previously argued that she was a tenured teacher. Next, the
trial court ruled that the Continuing Contract Law was not violated in this case. We
respectfully disagree on both counts.
First, we address the trial court’s ruling that Ms. Dallas was not entitled to rely on
the Continuing Contract Law because this claim relied on “contradictory facts” to her
Teacher Tenure Act claim. We agree that these claims are mutually exclusive. If Ms.
Dallas was a tenured teacher, her remedy is through the Teacher Tenure Act. If, however,
12
Section 49-5-409 was amended in 2015 to change the date upon which notice was required to
be received. See 2015 Tenn. Laws Pub. Ch. 232 (S.B. 893), eff. July 1, 2015. There is no dispute that the
amendment is inapplicable in this case.
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Ms. Dallas was not a tenured teacher, she may rely solely on the Continuing Contract
Law. See Snell v. Bros., 527 S.W.2d 114, 116 (Tenn. 1975) (“The Continuing Contract
Law does not apply to teachers who have acquired permanent tenure status and they are
not subject to reelection or dismissal under its provisions.”). Inconsistent pleading,
however, is expressly permitted by the Tennessee Rules of Civil Procedure. Pursuant to
Rule 8.05(2) of the Tennessee Rules of Civil Procedure,
A party may set forth two or more statements of a claim or defense
alternatively or hypothetically. When two or more statements are made in
the alternative and one of them if made independently would be sufficient,
the pleading is not made insufficient by the insufficiency of one or more of
the alternative statements. A party may also state as many separate claims
or defenses as he or she has, regardless of consistency.
Based on this rule, this Court has consistently held that parties are entitled to plead
inconsistent theories of the case, such as “that they were not negligent but that even if
they were, their act or omission did not cause injury.” Jacobs v. Nashville Ear, Nose &
Throat Clinic, 338 S.W.3d 466, 477 (Tenn. Ct. App. 2010).
The Board concedes that Rule 8.05(2) allows alternative pleading but asserts that
this doctrine does not extend past the pleading stage. Because discovery had been closed,
the Board asserts that Ms. Dallas should have been required to choose a single theory.
We disagree. As an initial matter, although Tennessee recognizes the election of remedies
doctrine, its “sole purpose is to ‘prevent double redress for a single wrong.’” Rolen v.
Wood Presbyterian Home, Inc., 174 S.W.3d 158, 162 (Tenn. Ct. App. 2005) (quoting
Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901 (Tenn. 1999)). As such, this Court has
recognized on multiple occasions that alternative theories may be maintained as late as
presentation to the jury or even following verdict. See Concrete Spaces, 2 S.W.3d 906
(stating that election of remedies comes into play when the jury finds two types of
damages may be awarded); Cascade Ohio, Inc. v. Modern Mach. Corp., No. E2009-
01948-COA-R3-CV, 2010 WL 4629467, at *13 (Tenn. Ct. App. Nov. 15, 2010) (“A
buyer that is damaged by a breach of contract involving a misrepresentation can elect, as
late as after the verdict comes in, between rescission of the contract and recovery of the
purchase price, or damages.”); Goodman v. Jones, No. E2006-02678-COA-R3-CV, 2009
WL 103504 at *9–10 (Tenn. Ct. App. Jan 12, 2009) (“If an election must be made in
order to avoid a ‘double recovery,’ it should be made after the jury has rendered its
verdict with its answers to specific questions.”). Thus, Ms. Dallas is not prevented from
pursuing alternative theories at the summary judgment stage.
The cases cited by the Board do not require a contrary result. For example, in
Loveday v. Blount Cty., No. E2011-01713-COA-R3-CV, 2012 WL 3012631 (Tenn. Ct.
App. July 24, 2012), the plaintiff cited Rule 8.05 to support his theory that he could raise
claims for both inverse condemnation and nuisance. The Court noted that while Rule
- 16 -
8.05(2) allows alternative theories, “it does not allow a plaintiff to proceed on a nuisance
theory when the allegations of the complaint allow only one conclusion, i.e., that he or
she knew that the damage to the property at issue is permanent.” Id. at *5. Thus, we held
that the plaintiff’s claim for nuisance failed because the allegations in the complaint
supported only a claim for inverse condemnation. The decision in Loveday to dismiss the
nuisance claim was not based on the inconsistency in the two claims, but the fact that one
claim was properly dismissed for failure to state a claim. Here, as previously discussed,
Ms. Dallas’s Teacher Tenure Act claim was properly dismissed at the summary judgment
stage because she did not have tenure at the time of her dismissal.13 As such, nothing
prevents her from now relying on her alternative argument concerning the Continuing
Contract Law.
Despite their argument otherwise, this case also does not involve a change in Ms.
Dallas’s position. She has always maintained that she is a tenured teacher, but obviously
recognized that the court could come to an opposite conclusion. Indeed, the Board has
maintained throughout this action that Ms. Dallas had not acquired tenure. Accordingly,
she properly maintained that in the absence of tenure, she was still entitled to protection
under the Continuing Contract Law. This is not a situation where a party has asserted
contradictory facts to gain a tactical advantage, but where a litigant rightly recognizes
that the facts may lead to two different conclusions, in the same way that a litigant may
assert that he is not negligent, but also maintain that if negligent, there was no causation
between the negligence and the injury. Jacobs, 338 S.W.3d at 477.
Finally, we note that the Tennessee Supreme Court has previously indicated that
both a Teacher Tenure Act claim and a Continuing Contract Law claim may be
maintained in the same action, although a teacher may only be entitled to relief under one
statutory scheme. In Snell v. Brothers, a teacher filed a claim for reinstatement and
damages relating to his dismissal as a teacher. In resolving the issue, the Tennessee
Supreme Court considered both the Teacher Tenure Act and the Continuing Contract
Law, noting that the latter was only applicable if the teacher was found to be non-tenured.
527 S.W.2d at 116. The Court noted that the school board did not comply with either
statute, but concluded that because the teacher was non-tenured, he was only entitled to
relief under the Continuing Contract Law. Id. at 119 (“We have concluded that Snell did
not achieve permanent tenure status . . . . Its failure to notify him by April 15 that he had
not been reelected resulted only in his contract being continued one more year under the
Teachers Continuing Contract Law []; for breach of that contract he is entitled to
damages.”). As such, the Tennessee Supreme Court has indicated that these alternative
claims may be maintained in a single action, as the plaintiff teacher may ultimately
prevail on only a single claim. This argument is therefore without merit.
13
In reaching this result, we cited opinions adjudicated on summary judgment and concluded that
these cases were nonetheless instructive. As such, we similarly apply Loveday to this summary judgment
case.
- 17 -
Consequently, we next consider whether the trial court erred in granting summary
judgment on Ms. Dallas’s Continuing Contract Claim. As previously discussed, section
49-5-409(b) states that notice of nonelection or nonrenewal “must be received prior to
June 15 to be applicable to the next succeeding school year[.]” The Tennessee Supreme
Court has held that the remedy for a violation of section 49-5-409(b) is monetary
damages amounting to one more school year. Snell, 527 S.W.2d at 119 (holding that the
violation of the Continuing Contract Act “resulted only in his contract being continued
one more year. . . ; for breach of that contract he is entitled to damages”).
Here, the following facts relative to this claim are undisputed. First, on June 12,
2015, the Board sent a certified letter to Ms. Dallas’s address informing her that her
teaching contract would not be renewed. There is no dispute that Ms. Dallas lived at this
address and had received letters related to her employment there previously. The first
attempt at delivery occurred on June 15, 2015. The letter was ultimately returned
unclaimed on June 22, 2015. On August 25, 2015, Ms. Dallas received a letter from the
Board concerning her teaching position.
The Board first argues that the statute should not be read to require that Ms. Dallas
receive the notice prior to June 15, but merely that the Board sent the notice on this date.
If the statute is construed in this matter, the Board asserts that its attempt to notify Ms.
Dallas of the nonrenewal on June 15, 2015 is sufficient and Ms. Dallas’s own failure to
retrieve the letter should not be permitted to defeat the Board’s attempt at notice. In
support, the Board asks this Court to extrapolate that conclusion from other statutes that
allow action to be taken after June 15 or the legislative history of the statutes.14 We
respectfully decline the Board’s invitation. Although we always endeavor to construe
statutes in light of their surrounding provisions, our guidepost must also be the language
used in the statute. See generally Keen v. State, 398 S.W.3d 594, 610 (Tenn. 2012)
(noting that our initial focus is the ordinary and natural meaning of the statute’s words,
and where unambiguous, “[w]e need look no further than the statute itself”). The
language of section 49-5-409(b) is clear and unambiguous. Simply put, it states that the
notice must be received prior to June 15. Here, there is no dispute that, regardless of any
alleged contumacious conduct on the part of Ms. Dallas, she simply could not have
received the notice prior to June 15, as June 15 was the date of the first attempt at
14
For example, the Board notes that subsection (c) of section 49-5-409 provides that the
Continuing Contract Law should not prevent a school board from abolishing a position after June 15,
provided that the teacher receives notice of the reasons for abolishing the position and providing that the
person is “entitled to the next position that the person is qualified to hold and that opens within the school
system during the remainder of the school year.” The Board is not entitled to rely on this section,
however, as the documents submitted in support of the Board’s own motion for summary judgment
indicate that the position was not abolished after June 15. Even more importantly, despite the fact that Ms.
Dallas was initially “excessed” due to the abolition of a position, when a position came open in the same
grade that Ms. Dallas previously taught, the principal posted the open position, rather than reemploy Ms.
Dallas. As such, this subsection is not relevant to our consideration of the issues presented in this case.
- 18 -
delivery. As such, the undisputed facts as set forth in this appeal demonstrate that the
Board did not strictly comply with the plain language of section 49-5-409(b).
The Board contends, however, that even if they failed to strictly comply with the
language of section 49-5-409(b), their substantial compliance is sufficient to defeat Ms.
Dallas’s claim under the Continuing Contract Law. The Tennessee Supreme Court
recently considered a case in which the mandatory or directory nature of a provision of
the Teacher Tenure Act was at issue. See Emory v. Memphis City Sch. Bd. of Educ., 514
S.W.3d 129, 144–45 (Tenn. 2017). In particular, a tenured teacher argued that Tennessee
Code Annotated section 49-5-512(a) was violated when she was not provided a hearing
within thirty days of the notice demanding a hearing.15 Therein, the court described the
following analysis applicable when determining whether a statute is mandatory or
directory:
In general, use of the word “shall” in a statute indicates that the statutory
provision is mandatory, not discretionary. See Home Builders Ass’n of
Middle Tennessee v. Williamson Cnty., 304 S.W.3d 812, 819 (Tenn. 2010)
(citing Gray v. Cullom Machine, Tool & Die, Inc., 152 S.W.3d 439, 446
(Tenn. 2004); Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150, 154 (1965);
Sanford Realty Co. v. City of Knoxville, 172 Tenn. 125, 110 S.W.2d 325,
327 (1937). “Notwithstanding this general rule, a statutory provision that
pertains to the time for performing an act governed by the statute is usually
construed to be directory only.” Home Builders Ass’n, 304 S.W.3d at 819
(citations omitted); see also Scheele v. Hartford Underwriters Ins. Co.,
218 S.W.3d 636, 640 (Tenn. 2007) (quoting Presley v. Bennett, 860
S.W.2d 857, 860 (Tenn. 1993); Trapp v. McCormick, 175 Tenn. 1, 130
S.W.2d 122, 125 (1939)) (“Statutory provisions relating to the mode or
time of doing an act to which the statute applies are ordinarily held to be
directory rather than mandatory.”). As this Court explained in Myers, “To
determine whether the use of the word ‘shall’ in a statute is mandatory or
merely directory, we look to see ‘whether the prescribed mode of action is
of the essence of the thing to be accomplished.’” Myers v. AMISUB
(SFH), Inc., 382 S.W.3d 300, 309 (Tenn. 2012) (quoting 3 Norman J.
Singer & J.D. Singer, Sutherland Statutes and Statutory Construction §
57:2 (7th ed. 2008)).
15
Section 49-5-5012(a) provides specific guidance concerning Teacher Tenure Act hearings,
including when and how the teacher should request the hearing, who may preside over the hearing, the
duties of the hearing officer, how the hearing may take place, when the hearing should take place,
whether the parties may be represented by counsel, the procedure applicable in the hearing, the costs
allowed for witnesses, how the hearing is to be recorded, and what may be filed for consideration during
the hearing.
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Emory, 514 S.W.3d at 144 n.11; see also W. Tennessee Motor Exp., Inc. v. Tennessee
Pub. Serv. Comm’n, 514 S.W.2d 742, 746 (Tenn. 1974) (concluding that both the words
“must” and “shall” were mandatory); Stiner v. Powells Val. Hardware Co., 168 Tenn.
99, 75 S.W.2d 406, 408 (Tenn. 1934) (equating the words “must” and shall”); State v.
Sanders, 735 S.W.2d 856, 857 (Tenn. Crim. App. 1987) (interpreting the word “must” as
equally mandatory as the word “shall”).
Our supreme court further noted that “whether the statute specifies the
consequence for noncompliance is a factor in determining whether a statutory provision
is mandatory or directory.” Id. at 145 n.12 (citing 3 Norman J. Singer & J.D. Singer,
Sutherland Statutes and Statutory Construction § 57:8 (7th ed. 2008) (“the lack of stated
consequences for noncompliance leads to a directory construction”); Marks v. New
Orleans Police Dep’t., 943 So. 2d 1028, 1035 (La. 2006) (“Generally, statutes using
mandatory language prescribe the result to follow (a penalty) if the required action is not
taken. If the terms of the statute are limited to what is required to be done, i.e., procedural
rules, then the statute is considered directory even though mandatory language is
employed.”)). Where a statute is merely directory, substantial compliance with the statute
is sufficient. Id. (citing Myers, 382 S.W.3d at 310). Ultimately, the Tennessee Supreme
Court left intact this court’s prior holding that the subject provision of the Teacher Tenure
Act was directory where the provision contained “no specific penalty for
noncompliance[,]” id. at 145, and the timing of the hearing was “not fundamental to the
validity of the statute.” Emory v. Memphis City Sch. Bd. of Educ., No. W2014-01293-
COA-R3-CV, 2015 WL 1934397, at *7 (Tenn. Ct. App. Apr. 29, 2015), rev’d on other
grounds, 514 S.W.3d 129 (Tenn. 2017) (citing Myers, 382 S.W.3d at 309).
Although the June 15 written notice deadline contained in section 49-5-409(b)
“pertains to the time for performing an act[,]” Emory, 514 S.W.3d at 144 n.11, we cannot
conclude that this provision is merely directory. First, the statute does specify a
consequence for non-compliance: section 49-5-409(b) specifically states that a notice of
nonrenewal must be received prior to June 15 “to be applicable to the next succeeding
school year.” In other words, the result of a failure to timely send the written notice is
that the nonrenewal is not effective for the next school year. See Cannon Cty. Bd. of
Educ. v. Wade, No. M2006-02001-COA-R3-CV, 2008 WL 3069466, at *9 (Tenn. Ct.
App. July 31, 2008) (“To be effective, a notice of non-renewal (or failure of reelection)
must be received prior to April 15 to be applicable to the next school year.” (citing Tenn.
Code Ann. § 49-5-409(b) (2008)). Based on this language, the Tennessee Supreme Court
has held that a violation of the Continuing Contract Law entitled the teacher to damages.
See Snell, 527 S.W.2d at 118.
Moreover, the timely notice of nonrenewal is the “essence of the thing to be
accomplished” by the Continuing Contract Law. Emory, 514 S.W.3d at 144 n.11.
Although this Court has not specifically addressed the purpose of the section 49-5-409,
another court considering a similar statute has held that the purpose of a continuing
- 20 -
contract law is to “to eliminate uncertainty and possible controversy regarding the future
status of a teacher and a school with respect to the teacher’s continued employment.”
Krahl v. Unified Sch. Dist. No. 497, Douglas Cty., 212 Kan. 146, 150, 509 P.2d 1146,
1150 (1973) (interpreting a similar continuing contract law applicable to non-tenured
teachers). In order to meet this purpose, the notice of nonrenewal must occur in a timely
manner. Moreover, the timing of section 49-5-409 (b)’s notice requirement is the very
core of the statute: the statute has been amended several times to change the date upon
which the notice must be received by. See Tenn. Code Ann. 49-5-409 (2016) (placing the
deadline at “five (5) business days following the last instructional day for the school
year”); Tenn. Code Ann. 49-5-409 (2011) (placing the deadline at May 15); Tenn. Code
Ann. 49-5-409 (2010) (placing the deadline at April 15). Finally, unlike the timing
requirement in the Teacher Tenure Act that was determined to be merely directory in
Emory, the timing requirement here is not merely one among a multitude of protections
afforded to non-tenured teachers. See Emory, 514 S.W.3d at 144 (involving the timing of
a hearing, rather than the timing of a notice). Rather, it is the central and nearly the sole
protection offered to non-tenured teachers. Cf. Washington Cty. Educ. Ass'n v.
Washington Cty. Bd. of Educ., No. E2018-01037-COA-R3-CV, 2019 WL 2537864, at
*1 (Tenn. Ct. App. June 20, 2019) (holding that non-tenured teachers do not have
standing to file claims related to the procedure and review of a director’s nonrenewal
decision); Parker v. Lowery, No. E2012-00547-COA-R3-CV, 2013 WL 1798958, at *5
(Tenn. Ct. App. Apr. 26, 2013) (“Despite specific provisions providing a procedure in
which to recommend and elect teachers for tenure, Teacher had no right of judicial
review regarding the non-renewal of her contract and her corresponding failure to receive
tenure because she was a probationary employee.”).
Although other courts have not specifically addressed this issue, we conclude that
prior opinions support our conclusion in this case. First, in Snell, the Tennessee Supreme
Court indicated that the teacher was entitled to damages for the violation of the
Continuing Contract Law where the board of education “missed the cut-off date of April
15 for notifying non-tenured teachers of failure of reelection[.]” Snell, 527 S.W.2d at
116. A review of the facts of Snell show that the plaintiff teacher had actual notice of the
nonrenewal well before the “cut-off” date. Id. at 115–116. Additionally, the teacher was
notified by written letter of the nonrenewal less than fifteen days following the statutory
date. Id. at 115. Despite this actual notice and a belated attempt to comply with the
statute, the Court concluded that the Continuing Contract Law had been violated and the
plaintiff teacher was entitled to damages. Id. at 118–19. This Court’s opinions have
followed suit, generally holding that a timely notice under section 49-5-409(b) is a
condition precedent to dismissal under the Continuing Contract Law. Cannon Cty. Bd. of
Educ. v. Wade, No. M2006-02001-COA-R3-CV, 2008 WL 3069466, at *10 (Tenn. Ct.
App. July 31, 2008) (citing Snell, 527 S.W.2d at 116) (“Under authority interpreting
existing statutes governing teacher tenure and teacher contracts, a non-tenured teacher
may be dismissed without cause by written notice that the teacher has not been re-elected
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to teach the next school year, as long as the notice complies with the time limits set in
[section] 49-4-409.”) (emphasis added); Malone v. Shelby Cty. Bd. of Educ., 773 S.W.2d
256, 259 (Tenn. Ct. App. 1989) (“The tenure statute read in conjunction with the
termination of contract statute leads to the conclusion that a school board has the right to
dismiss or fail to reinstate the contract of a non-tenured teacher, provided the school
board gives the teacher written notice prior to April 15 of the year of their contract.”)
(emphasis added); see also Washington Cty. Educ. Ass’n, 2019 WL 2537864, at *3
(citing the above language from Cannon favorably). These opinions therefore lend
support to the conclusion that the “cut-off” date provided in section 49-5-409(b) is
mandatory, rather than directory.
Based on the foregoing, we hold that the procedure under section 49-5-409(b) is
mandatory. As such, the Board was required to strictly comply with the statute’s
mandates. See Myers, 382 S.W.3d at 310 (“Because these requirements are mandatory,
they are not subject to satisfaction by substantial compliance.”). The undisputed facts do
not show that the Board strictly complied with section 49-5-409(b) by notifying Ms.
Dallas of her nonrenewal prior to June 15, 2015. Instead, the earliest Ms. Dallas could
have been notified of her nonrenewal was June 15, 2015, past the “cut-off” date
contained in the statute. Snell, 527 S.W.2d at 116. As such, the trial court erred in
granting summary judgment to the Board on this claim.16
CONCLUSION
Based on the foregoing, the judgment of the Shelby County Chancery Court is
affirmed in part and reversed in part. Costs of this appeal are taxed one-half to Appellant
Pamela Dallas, and one-half to Appellee Shelby County Board of Education, for all of
which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
16
We note that Ms. Dallas filed no motion for summary judgment on this issue. In addition, in her
brief, Ms. Dallas concedes that a determination of her damages related to the violation of the Continuing
Contract Law is outstanding.
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