Preston Barbee v. Union City Bd. of Educ.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0207n.06
No. 13-5188
FILED
Mar 17, 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
PRESTON BARBEE, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) WESTERN DISTRICT OF
) TENNESSEE
UNION CITY BOARD OF EDUCATION; )
GARY HOUSTON, Director of Union City ) OPINION
Schools, )
)
Defendants-Appellees. )
)
)
BEFORE: MOORE and McKEAGUE, Circuit Judges; HELMICK, District Judge.*
McKeague, Circuit Judge. Appellant Preston Barbee appeals the district court’s grant of
summary judgment to Appellees Union City Board of Education and Gary Houston, the Director of
Schools. Barbee alleges that he was wrongfully terminated under the Tennessee Teacher Tenure Act
and denied his right to due process under 42 U.S.C. § 1983. We affirm.
I.
This case centers on the employment relationship between Preston Barbee and the Union City
Board of Education. In the summer of 2008, the Board of Education hired Barbee as a teacher and
assistant basketball coach at Union City High School. At the end of the basketball season, Director
*
The Honorable Jeffrey J. Helmick from the U.S. District Court for the Northern District of
Ohio, sitting by designation.
No. 13-5188, Barbee v. Union City Bd. of Educ.
Gary Houston offered Barbee another contract, this time as a teacher for the 2009-10 school year.
At the end of that school year, Director Houston offered Barbee another teaching contract, this time
for the 2010-11 school year.
During the 2010-11 school year, several incidents marred Barbee’s employment record.
Principal Wesley Kennedy verbally scolded Barbee for chewing tobacco on school grounds and for
leaving his students unattended. Barbee also received two written reprimands. First, on March 15,
2011, Barbee received a memorandum from Vice Principal Jacob Cross concerning his habit of
leaving students unattended, which on one occasion resulted in one student pursuing another student
with a can of mace. Second, on March 29, 2011, Barbee received another reprimand concerning his
habit of leaving students unattended, this time, the document warned Barbee that continued
transgressions could result in Barbee’s not being recommended for tenure. Despite these issues,
Director Houston recommended Barbee to the Board of Education for tenure.
On April 11, 2011, the Board of Education held its regular April board meeting. The minutes
from this meeting indicate that the “following eligible teachers were presented for tenure after
supporting documentation had been submitted to the board at the March board meeting: Preston
Barbee . . . A motion . . . to approve the eligible teachers received a second . . . The motion carried
by all in attendance.” R. 38-1, Board Meeting Minutes at 54–55, PageID # 424–25. The rest of the
meeting involved discussions about the school calendar, a personnel report concerning resignations
and unrelated new hires, and Director Houston’s report concerning sports, teacher appreciation day,
and an upcoming banquet.
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No. 13-5188, Barbee v. Union City Bd. of Educ.
After the Board of Education’s meeting, multiple student allegations concerning Barbee
surfaced, and these allegations eventually led to his termination. On April 21, 2011, Principal
Kennedy sent Barbee an email concerning student allegations that Barbee had used tobacco in class
and made inappropriate comments to female students, which Barbee denied. On April 27, 2011,
Barbee met with Principal Kennedy and was told that female students felt uncomfortable around
Barbee because they felt that Barbee was “watching their butt[s,]” that his “looks and comments
[had] gotten worse since spring break[,]” that he had “touched [their] leg or back area of body[,]”
and that they felt “retaliation” from him. R. 37-4, April 27th Meeting Minutes at 5, PageID # 303.
Barbee was also told of drug-related allegations that he “dips in class” and “smoked dope with a
basketball player[.]” Id. Despite denying these allegations, Barbee was suspended without pay. On
May 2, 2011, Barbee met with Director Houston and Principal Kennedy. At this meeting, Barbee
was “placed on leave for the rest of the school year, with pay.” R. 38-1, Meeting with Barbee at 62,
PageID # 432. Barbee was also informed via letter that as “a non-tenured teacher” he would “not
be rehired to teach in the Union City School System for the 2011-12 school year.”1 Id. at 65, PageID
# 435.
After Barbee’s contract was non-renewed, several letters were exchanged between the
parties’ attorneys. On June 7, 2011, an attorney from the Tennessee Education Association sent
Director Houston a letter concerning Barbee’s tenure status, stating that the minutes from the April
11, 2011 board meeting indicated that Barbee was reemployed, and that Barbee was tenured. On
1
Director Houston later admitted that the Board of Education played no role in his decision
to non-renew Barbee.
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No. 13-5188, Barbee v. Union City Bd. of Educ.
June 22, 2011, the School Board’s counsel Charles Cagle sent a letter to the Tennessee Education
Association concerning Barbee, stating that “conferral of tenure status does not become immediately
effective” until after the teacher is reemployed for the following school year. Id. at 60, PageID #
430. According to Cagle, because Barbee was not reemployed, he was not tenured.
On September 6, 2011, Barbee filed suit in the Chancery Court of Obion County, Tennessee
against the Board of Education and Director Houston. The Board of Education and Director Houston
removed the case to the U.S. District Court for the Western District of Tennessee. Both parties
moved for summary judgment, and the district court granted summary judgment for the defendants.
The district court reasoned that Barbee’s tenure would not have gone into effect until after the Board
of Education or Director Houston reemployed Barbee for the 2011-12 school year. The district court
found that neither the minutes from the Board of Education’s April 11, 2011 meeting nor the letter
from Attorney Cagle indicated that Barbee met the reemployment requirement under Tennessee law.
The district court held that Barbee was not tenured and therefore not entitled to the procedural
safeguards in the Tennessee Tenure Act or recovery under 42 U.S.C. § 1983. This appeal followed.
II.
This Court reviews a district court’s grant of summary judgment de novo. Dodd v. Donahoe,
715 F.3d 151, 155 (6th Cir. 2013) (citing Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th
Cir. 2010)). “Summary judgment is appropriate when ‘the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. at
155–56 (quoting Fed. R. Civ. P. 56(a)). In our review, we “must view all evidence in the light most
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No. 13-5188, Barbee v. Union City Bd. of Educ.
favorable to the non-moving party.” Id. at 156 (internal quotation marks omitted) (quoting Upshaw
v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir.2009)).
The Teacher Tenure Act is the state statute that outlines the teacher-tenure process in
Tennessee. We interpret the Act consistent with the practice adopted by Tennessee’s state courts.
When interpreting statutes, Tennessee courts “presume that every word in a statute has meaning and
purpose; each word should be given full effect if the obvious intention of the General Assembly is
not violated by so doing.” Lawrence Cnty. Educ. Ass’n v. Lawrence Cnty. Bd. of Educ., 244 S.W.3d
302, 309 (Tenn. 2007) (citing In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005)). “When the statutory
language is clear and unambiguous, [courts] must apply its plain meaning in its normal and accepted
use, without a forced interpretation that would limit or expand the statute’s application.” Id. (internal
quotation marks omitted) (quoting Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.
2004)). Courts enforce “the written language without reference to the broader statutory intent, the
history of the legislation, or other sources.” Id. (citing Abels v. Genie Indus. Inc., 202 S.W.3d 99,
102 (Tenn. 2006)).
At the outset, the basic structure of the Tennessee school system is helpful in understanding
the tenure process prescribed by the Act. “Each local board of education is authorized to employ a
director of schools[.]” Tenn. Code Ann. § 49-2-301(a) (2010).2 The Director of Schools is
“appointed by and answerable to the board.” Lawrence Cnty., 244 S.W.3d at 310 (internal citations
omitted). Although the Board of Education is the school system’s “supreme power[,]” both the
Board of Education and the Director of Schools have specific roles to play in the tenure process
2
The 2010 version of the Act is the one that was in effect as of April 2011.
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No. 13-5188, Barbee v. Union City Bd. of Educ.
because each is tasked with distinct duties. Id. at 318 (discussing how the Board of Education and
Director of Schools work in tandem). In some cases, the Act assigns a duty exclusively to the Board
of Education. See, e.g., Tenn. Ann. Code § 49-2-203(a)(1) (2010) (election). In other cases, the Act
directs the Board of Education to delegate a duty to the Director of Schools. See, e.g., id.
§ 49-2-301(b)(1)(EE) (employment).
Under the Act, a teacher is either tenured or not tenured. A tenured teacher may be
dismissed, suspended, or have his contract non-renewed only with cause and after having been given
notice, a hearing, and an opportunity for judicial review. See Johnston-Taylor v. Gannon, 907 F.2d
1577, 1581 (6th Cir. 1990) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). By contrast,
a non-tenured teacher can be dismissed, suspended, or have his contract non-renewed without cause
and without the requirement of notice, a hearing, or an opportunity for judicial review. See id.
Ultimately, the “board of education or director of schools” must provide “written notice” to teachers
of their “dismissal or failure of election” by “May 15 to be applicable to the next succeeding school
year[.]” Tenn. Code Ann.§ 49-5-409(a) & (b)(2) (2010).
The Act lists three prerequisites to obtaining tenure. First, the Director of Schools must
“[r]ecommend to the board teachers who are eligible for tenure[.]” Id. § 49-2-301(b)(1)(J). “It is
the duty of the board of education to assign [this recommendation duty] to its director of schools[.]”
Id. § 49-2-301(b)(1). With respect to the recommendation duty, the Director of Schools is tasked
with making “such recommendations to the board as the director deems for the best interest of the
public schools, but in no case shall the director have a vote on any question coming before the
board[.]” Id. § 49-2-301(b)(1)(F).
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No. 13-5188, Barbee v. Union City Bd. of Educ.
Second, the Board of Education must “[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[.]” Id. § 49-2-203(a)(1). This election prerequisite is exclusively “the
duty of the local board of education[.]” Id. § 49-2-203(a). For situations in which a teacher is not
elected by the Board of Education, it is the Director of Schools’ responsibility to then “notify such
teachers of their failure of reelection[.]” Id. § 49-2-301(b)(1)(J).
Third, a teacher must satisfy the four tenure-eligibility requirements listed in § 49-5-503:
(1) Has a degree from an approved four-year college or to any
vocational teacher who has the equivalent amount of training
established and licensed by the state board of education;
(2) Holds a valid professional license based on training covering the
subjects or grades taught;
(3) Has completed a probationary period of three (3) school years or
not less than twenty-seven (27) months within the last five-year
period, the last year to be employed as a regular teacher; and
(4) Is reemployed by the board for service after the probationary period.
Id. § 49-5-503 (emphasis added). While § 49-5-503(4) indicates that reemployment is done by the
Board of Education, § 49-2-301(b)(1)(EE) indicates that the Board of Education assigns to the
Director of Schools the duty to “employ, transfer, suspend, nonrenew, and dismiss all personnel[.]”
Id. § 49-2-301(b)(1)(EE) (emphasis added). “It is [therefore] the duty of the board of education to
assign [employment and nonrenewal duties] to its director of schools[.]” Id. § 49-2-301(b)(1).
III.
Determining whether Barbee was a tenured teacher at the time his contract was non-renewed
requires analyzing whether the Act’s three prerequisites were met. The parties agree that the first
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No. 13-5188, Barbee v. Union City Bd. of Educ.
prerequisite, Director Houston’s recommendation, was met. They disagree whether the second
prerequisite, the Board of Education’s election, was met: Barbee argues that election occurred,
whereas the Board of Education argues that only provisional election occurred. And they further
disagree whether the third prerequisite, satisfaction of the four tenure-eligibility requirements, was
met. Namely, they dispute whether Barbee satisfied the fourth tenure-eligibility requirement of
having been “reemployed by the board for service after the probationary period.” Tenn. Code Ann.
§ 49-5-503(4) (2010). We address each prerequisite in turn.
A.
Satisfaction of the second prerequisite depends on whether the Board of Education’s action
at its April 11, 2011 meeting constituted election within the meaning of the Act. See id. § 49-2-
203(a)(1) (“It is the duty of the local board of education to: Elect . . . teachers who have attained or
are eligible for tenure and fix the salaries and make written contracts with the teachers[.]”). Barbee
argues that the Board of Education elected him for tenure, and that he satisfies the reemployment
requirement under Tennessee law because the terms election and reemployment “are synonymous.”
Pet. Br. at 20 n.12. The Board of Education argues that its action provided Barbee only with
provisional tenure status that would not go into effect until Barbee was reemployed, namely, when
Barbee was extended employment for the 2011-12 school year. For purposes of whether Barbee
satisfied the second prerequisite, it is enough for us to determine that the Board of Education’s action
could only be understood as a grant of provisional tenure conditioned on Barbee’s later fulfillment
of the tenure-eligibility requirement of reemployment.
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No. 13-5188, Barbee v. Union City Bd. of Educ.
This is so for two reasons. First, Barbee’s attempt to merge two prerequisites by claiming
that they are synonymous fails based on the Act’s language and structure. The Act clearly describes
a Board of Education’s act of election as one distinct from reemployment. Reemployment is best
understood as the renewal of a teacher’s contract pursuant to § 49-2-301(b)(1)(EE), which states that
the Board will assign to the Director the duty to “employ” teachers. See Tenn. Code Ann. § 49-2-
301(b)(1)(EE) (2010). Election, by contrast, is exclusively the “duty” of the Board of Education.3
See id. § 49-2-203(a). While the Board of Education did act to provisionally elect Barbee, it had not
yet acted (through Director Houston) to reemploy Barbee. See id. § 49-2-301(b)(1)(J)
(communicating reelection); see also id. § 49-2-301(b)(1)(EE) (communicating nonrenewal).
Conflating reemployment with election does violence to the statutory scheme.4 Indeed, despite the
fact that both are discretionary acts, reemployment (like completion of the three-year probationary
period) is a separate tenure-eligibility requirement.5 See id. § 49-2-203(a); id. § 49-5-503(4); see
3
Barbee argues at length that the Board of Education is the supreme governing body of the
school system. This is true but not helpful, as this argument neglects the fact that the Act specifically
directs the Board of Education to delegate the task of reemployment to Director Houston. See id.
§ 49-2-301(b)(1)(EE).
4
“If a provision is susceptible of (1) a meaning that gives it an effect already achieved by
another provision, or that deprives another provision of all independent effect, and (2) another
meaning that leaves both provisions with some independent operation, the latter should be
preferred.” Antonin Scalia & Bryan A. Gardner, Reading Law: The Interpretation of Legal Texts
176 (2012).
5
The minutes state that Barbee was one of the “eligible teachers [who] were presented for
tenure[.]” R. 38-1, Minutes at 54, PageID # 424. Despite this language, however, tenure eligibility
is determined according to the tenure-eligibility requirements listed in the statute. See Tenn. Code
Ann. § 49-5-503 (2010). Neither the Board of Education nor Director Houston had the power to
waive those statutory conditions. See id. (noting the reemployment requirement).
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No. 13-5188, Barbee v. Union City Bd. of Educ.
also Bowden v. Memphis Bd. of Educ., 29 S.W.2d 462, 465 (Tenn. 2000) (“We concluded that the
completion of the probationary period by itself does not automatically confer tenure, but rather, is
merely a condition precedent to eligibility for tenure.”) (internal quotation marks omitted).
Therefore, the statutory structure instructs that the Board’s act of election for provisional tenure is
distinct from the Director of Schools’ responsibility to reemploy the teacher for the following school
year.
Second, the fact that the Board of Education granted Barbee only provisional tenure is
evident by the similarity in the positions held by the opposing parties. Both agree that the events at
the board meeting set in motion a sequence of events whereby tenure could later vest upon
reemployment.6 They merely disagree as to how long the period of provisional tenure would last.
Barbee himself concedes that his tenure did not vest during the Board of Education’s April 11, 2011
meeting, arguing instead that his tenure vested upon his supposed reemployment (the next time that
he physically reported to work) on April 12, 2011. Implicit in Barbee’s concession is the recognition
that the Board of Education only provisionally granted him tenure, conditioned on his later
6
The dissent contends that “a teacher must already be eligible for tenure” before the
prerequisites of recommendation under § 49-2-301(b)(1)(J) and election under § 49-2-203(a)(1)
occur. But the statute does not forbid the Board of Education and Director Houston from relying on
a recommendation and election to grant provisional tenure, on the condition that the teacher be
reemployed for the following school year. See generally Tenn. Code Ann. § 49-2-203(a)(1)
(election); § 49-2-301(b)(1)(J) (recommendation); § 49-5-503(4) (reemployment).
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No. 13-5188, Barbee v. Union City Bd. of Educ.
reemployment.7 Therefore, the parties only truly disagree on the length of Barbee’s provisional
tenure, in other words, on what event constituted reemployment within the meaning of the Act.
B.
Section 49-5-503(4) states that one of the tenure-eligibility requirements is that a teacher
need be “reemployed by the board for service after the probationary period.” Tenn. Ann. Code § 49-
5-503(4) (2010). Barbee argues that reemployment was satisfied by his showing up for work on
April 12, 2011, the day following the Board of Education’s meeting. The Board of Education argues
that reemployment was not satisfied because reemployment could be satisfied only by Director
Houston’s offering Barbee a contract for the 2011-12 school year or seemingly by Barbee’s reporting
to work as a teacher during the 2011-12 school year. We find that the Act’s plain meaning renders
Barbee’s interpretation untenable, as does all relevant Tennessee case law, for several reasons.
First, the words “reemployed by the Board” undercut Barbee’s assertion that his showing up
for work the following morning satisfied the tenure-eligibility requirement of reemployment. See
id. § 49-5-503(4) (emphasis added). This statutory language clearly contemplates some sort of
“affirmative action” by the Board of Education. Snell v. Brothers, 527 S.W.2d 114, 117 (Tenn.
1975). Indeed, in Snell v. Brothers, a Board of Education successfully argued that it need take some
7
Contrary to the position taken in the dissent, the concept of provisional tenure does not
conflict with the fact that a teacher is either tenured or not tenured. A teacher who had provisional
tenure subject to the condition subsequent that he later be reemployed would be not tenured. When
reemployment occurred, he would be tenured. Moreover, the dissent’s own conclusion relies on the
concept of provisional tenure in acknowledging that Barbee’s tenure did not vest at time of the vote,
arguing instead that his tenure vested the “following day.” The Board of Education’s tenure vote
was thus provisional—being subject to a condition subsequent—under either view of what
constitutes reemployment.
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No. 13-5188, Barbee v. Union City Bd. of Educ.
“positive action to reemploy” a teacher in order to satisfy the reemployment prong of the tenure-
eligibility requirements.8 Id. (emphasis in original). And so it seems immaterial if Barbee showed
up for work the next morning or not, because Barbee’s choice to report to work does not reflect any
sort of “positive” or “affirmative action” on behalf of the Board of Education or Director Houston.
See id. Even if the Board of Education had not provisionally granted Barbee tenure, Barbee
presumably would have reported to work the following morning anyway in order to fulfill his
obligation under his existing one-year contract. Barbee’s argument that fulfillment of an existing
contractual obligation constituted reemployment is thus implausible.
Second, the plain meaning of “reemployment” itself does not in any way comport with
Barbee’s strained explanation of his two periods of employment. Dictionaries define reemployment
to mean to “employ (a former employee) again[,]” Oxford Dictionaries (online ed. 2013) (emphasis
added), and “to hire back,” Webster’s Third New Int’l Dictionary (online ed. 2013) (emphasis
added). In an effort to delineate two periods of employment, Barbee essentially argues that his
probationary contract was terminated by the Board of Education on April 11, 2011, and that a new
employment contract for the remainder of the school year was offered to and accepted by him
effective April 12, 2011. But Barbee points to nothing in the record detailing the terms of his new
employment contract, such as whether the terms of his new employment contract matched the terms
of his probationary contract. Indeed, there is absolutely no evidence in the minutes from the board
8
In Snell v. Brothers, the Board of Education did not provisionally elect the teacher. See 527
S.W.2d at 119. Regardless, the discussion of what constitutes reemployment under the Act is
helpful. See id.
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No. 13-5188, Barbee v. Union City Bd. of Educ.
meeting as to these contractual terms. Barbee’s concept stretches the definition of reemployment
too far and is thus unconvincing.
Third, the plain language of the statute indicates that reemployment need occur “after the
probationary period.” Tenn. Code Ann. § 49-5-503(4) (2010). The Act states that the “probationary
period [is] three (3) school years or not less than twenty-seven (27) months within the last five-year
period[.]” Id. § 49-5-503(3). While Barbee had completed 27 months of employment, the best
reading of the statute, as well as the relevant case law, is that the reemployment concerns the school
year that follows the three-year probationary period. See id. Because Barbee did not receive a new
contract for the following school year or report to work as a teacher in the 2011-12 school year, we
conclude that he was not reemployed within the meaning of the Act.
This conclusion is supported by the Act itself, which in § 49-5-401(a) notes that the May 15,
2011 deadline by which the Board of Education needed to reemploy Barbee concerns the “following
school year[.]” Id. § 49-5-401(a). Our conclusion is further supported by the fact that on nearly
every occasion when a Tennessee state court has had occasion to discuss the Act’s reemployment
requirement, it has either explicitly or implicitly indicated that reemployment refers to the school
year that follows the three-year probationary period. See, e.g., Reeves v. Etowah City Sch. Bd. of
Educ., 806 S.W.2d 176, 179 (Tenn. 1991) (“We find that Reeves had served the required statutory
probationary period and was reemployed by the Board [pursuant to a contract providing for six
additional years of] service after the probationary period, as required by the statute[.]”); Randall v.
Hankins, 733 S.W.2d 871, 872 (Tenn. 1987) (“The positions of two other persons in addition to
appellants were eliminated at the end of the 1980-81 school year because of a withdrawal of federal
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No. 13-5188, Barbee v. Union City Bd. of Educ.
funding and a decline in enrollment. One of those persons was subsequently reemployed; the other
resigned from the system.”); Johnson v. Christian Bros. Coll., 565 S.W.2d 872, 873–74 (Tenn. 1978)
(“He was not reemployed for the 1975-76 academic year but was notified in December, 1974 that
he would not be offered an eighth-year contract with tenure . . . [w]hen petitioner was reemployed
for his seventh academic year, 1974-75, he received a letter from the President . . . enclosing his new
contract . . .”); Ryan v. Anderson, 481 S.W.2d 371, 375 (Tenn. 1972) (“While complainant was
employed . . . for a sufficient length of time to complete the probationary period . . . complainant was
not re-employed . . . after the probationary period.”); Shannon v. Bd. of Ed. of Kingsport,
286 S.W.2d 571, 577 (Tenn. 1955) (“We have been cited to no case holding that a teacher who has
failed of reemployment for another school year is entitled to notice and the right to a judicial
review.”); Gilliam v. Adams, 171 S.W.2d 813, 813–14 (1943) (“That teachers who have been
employed for three or more years in their present school systems . . . and that those teachers
employed at the time of the passage of the Act who have not served three or more years but are
otherwise qualified by law shall be deemed to be . . . on reemployment for the fourth year.”); Lee v.
Franklin Special Sch. Dist. Bd. of Educ., 237 S.W.3d 322, 337 (Tenn. Ct. App. 2007) (“We therefore
conclude that Ms. Lee is entitled ‘to be paid the full salary’ she would have been paid had she been
reemployed for the 2002-03 school year, as Tenn. Code Ann. § 49-5-511 provides.”).
Also instructive to our analysis is the Tennessee Supreme Court’s decision in Coleman v.
Acuff.9 See 569 S.W.2d 459, 460 (Tenn. 1978). Teacher Carrington Coleman, like Barbee, argued
9
It is true, as noted in the dissent, that certain elements of the statutory scheme changed in
1992 with the passage of the Educational Improvement Act. However, as Barbee conceded during
oral argument, the § 49-5-503(4) tenure-eligibility requirement of reemployment has remained the
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No. 13-5188, Barbee v. Union City Bd. of Educ.
that he “obtained permanent teacher tenure automatically . . . by continuing in his teaching until the
end of the 1976-77 school term, during which completion of his probationary period occurred.” Id.
The court ruled that mere completion of the final school year of a teacher’s probationary period could
not satisfy the tenure-eligibility requirement of reemployment, stating that “a qualified teacher who
has finished the statutory probationary requirements does not obtain tenure status until and unless
he or she is re-employed by the Board of Education for further service after expiration of the contract
during which the probationary period was completed.”10 Id. (emphasis added). Given the Tennessee
Supreme Court’s straightforward explanation in Coleman, it is perhaps not surprising that Barbee
cannot point to a single case that endorses his interpretation of reemployment under the Act.11
The weakness of Barbee’s argument is further highlighted by Sanders v. Vinson, 558 S.W.2d
838, 842 (Tenn. 1977). In Sanders, a teacher prevailed on her argument that she satisfied the tenure-
same. See, e.g., Coleman, 459 S.W.2d at 461. Moreover, one of the central tenets of the EIA was
that it divested the Board of Education of its exclusive authority over the hiring and non-renewing
of untenured teachers, and instead directed the Board of Education to delegate those duties to the
Director of Schools. This divestment if anything bolsters the Board of Education’s position that
reemployment had not in fact occurred because the Act instructed the Board of Education to delegate
the duty to reemploy Barbee to Director Houston. See Tenn. Code Ann. § 49-2-301(b)(1) (2010).
And Barbee points to nothing in the record that suggests Director Houston did so.
10
In Coleman, the teacher was not provisionally reelected by the Board of Education. See 569
S.W.2d at 460. But Coleman considered in light of the § 49-5-503 tenure-eligibility requirements
is still helpful in determining what constitutes reemployment under the Act. See id.
11
During oral argument, Barbee asserted that the Act’s language concerning retainment
counseled in favor of his claim that his continued employment was reemployment. That statutory
language was not in the version of the Act that applies to this case. Barbee, therefore, cannot rely
on the statutory language concerning retainment to bolster his claim of reemployment. See generally
Bowden, 29 S.W.2d at 465 (“Upon completion of the probationary period, any teacher who is
reemployed or retained in the system is entitled to the tenure status . . .” (quoting an older version
of the statute)); Snell, 527 S.W.2d at 117 (same).
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No. 13-5188, Barbee v. Union City Bd. of Educ.
eligibility requirement of reemployment and was in fact a tenured teacher. See id. But in Sanders,
the teacher had completed not only the full probationary period but also a week of in-service training
the following August (in conjunction with the school year that followed the probationary period).
See id. at 840–42 (“[Completing] the three-year or twenty-seven month probationary period by a
teacher otherwise qualified, does not automatically confer permanent tenure. It merely is a condition
precedent to eligibility for tenure.” (emphasis in original)). By contrast, Barbee was suspended
during the final year of his three-year probationary period and completed no employment activity in
conjunction with the school year following his probationary period. In conclusion, the plain
language of § 49-5-503(4) and all of the relevant case law counsel in favor of accepting the Board
of Education’s argument that Barbee was not reemployed and thus not tenured.
IV.
Barbee was not a tenured teacher at the time of his non-renewal, and so the process provided
to him prior to his non-renewal was adequate. For the reasons discussed above, the district court’s
grant of summary judgment to the Board of Education and Director Houston is affirmed.
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No. 13-5188, Barbee v. Union City Bd. of Educ.
KAREN NELSON MOORE, Circuit Judge, dissenting. Under the majority’s reading
of the Tennessee Teacher Tenure Act (“the Act”), a teacher needed to pass three steps to become
a tenured teacher in May 2011: Step One, be recommended by the director of schools to the
board of education for tenure; Step Two, be elected by the board for tenure; and Step Three,
satisfy the eligibility requirements of Tennessee Code Annotated § 49-5-503 (2010),1 specifically
being “reemployed by the board for service after the probationary period.” See Majority Op. at
6–7. Preston Barbee—according to the majority—passed Step One, might have passed Step
Two, but definitely failed Step Three, because he was not reemployed for the 2011–2012 school
year and, thus, was never eligible for tenure. Such conclusions, however, require the suspension
of logic, an inversion of the relationship between the board and the director of schools, and a
conflation of various versions of the Act. I cannot follow this approach, and therefore, I
respectfully dissent.
First, the majority’s decision that Barbee satisfied Step One but failed Step Three makes
little logical sense: a teacher must already be eligible for tenure to pass Step One. Director
Houston admitted that he recommended Barbee for tenure, meaning that Barbee passed Step
One. See R. 37-3 (Houston Dep. at 15:24–16:8) (Page ID #253–54). Under the Act, however,
the director of schools is given only the power to “[r]ecommend to the board teachers who are
eligible for tenure . . . .” § 49-2-301(b)(1)(J) (emphasis added). The statute says nothing about
recommending teachers who might be tenure-eligible in the future. Furthermore, the Act allows
the board to “[e]lect, upon the recommendation of the director of schools, teachers who have
1
Unless otherwise noted, all citations are to the Tennessee Code as it existed on May 2, 2011,
the date that Barbee received notice that his contract would not be renewed.
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attained or are eligible for tenure.” § 49-2-203(a)(1) (emphasis added). There is no separate
recommendation for, or a vote on, tenure eligibility. If Director Houston and the board were
compliant with the Act, they must have considered Barbee already eligible on April 11, 2011,
and it appears that they did. According to the board meeting minutes, “[t]he following eligible
teachers [including Barbee] were presented for tenure,” and there was a motion to “approve the
eligible teachers . . . .” R. 38-1 at 54, 55 (Bd. Meeting Mins. at 1, 2) (Page ID #424, 425). Still,
the majority claims that Barbee was not tenure-eligible because he was not reemployed for the
2011–2012 school year. See Majority Op. at 10. Given this record and the statutory scheme,
though, it is quite odd to say that Barbee cleared Step One but failed Step Three when Step One
requires a teacher to be eligible for tenure before the director of schools recommends him to the
board.
Second, the majority’s reading of the Act and the events in this case inverts the
relationship between the board and the director of schools. As noted above, a board member
moved to “approve” Barbee for tenure on April 11, and the motion “carried by all in attendance.”
R. 38-1 at 55 (Bd. Meeting Min. at 2) (Page ID #425). According to the majority, the passage of
this motion granted Barbee “provisional tenure,” which would vest upon Director Houston’s
decision to offer Barbee a contract for the 2011–2012 school year. Majority Op. at 9–10. This
understanding is incorrect for two reasons. One, the concept of “provisional tenure” appears
nowhere in the Act, and it even conflicts with the majority’s statement that “a teacher is either
tenured or not tenured.” Id. at 6. Two, and more fundamentally, this notion of provisional tenure
subject to the director’s discretion conflicts with the plain language of the Act and Tennessee
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case law. Two decades ago, Tennessee passed the Education Improvement Act, 1992 Tenn. Pub.
Ch. 535, which “implemented a corporate model of governance and replaced the elected
superintendent position with a director of schools, appointed by and answerable to the board.”
Lawrence Cnty. Ed. Ass’n v. Lawrence Cnty. Bd. of Educ., 244 S.W.3d 302, 310 (Tenn. 2007)
(citing Tenn. Code Ann. § 49-2-301 (2002 & Supp. 2007)) (emphasis added). While the majority
is correct that Director Houston has the power to “employ, transfer, suspend, nonrenew and
dismiss all personnel,” the majority incorrectly truncated its quotation of the Act, because the Act
continues: “except as provided in § 49-2-203(a)(1) and in chapter 5, part 5 of this title.” § 49-2-
301(b)(1)(EE). Section 49-2-203(a)(1) and chapter five govern teacher tenure, meaning that the
Act explicitly makes the director subordinate to the board when teacher tenure is at issue.
Furthermore, under § 49-5-504(b), the Act explicitly forbids the director from rehiring a teacher
if the board chooses not to grant tenure. To allow the board to approve Barbee for tenure and
then have Director Houston override that decision by nonrenewing Barbee’s contract makes the
limits on the director’s powers meaningless, and it conflicts with the basic balance of powers
between the board and the director embedded in the Act.
Finally, the majority interprets § 49-5-503 to govern tenure eligibility, but in doing so, it
mistakenly grafts requirements found in the current version of the statute onto § 49-5-503 as it
existed in May 2011. Today, § 49-5-503 creates a list of five requirements for tenure eligibility,
including that the teacher be “reemployed by the director of schools.” However, in May 2011,
§ 49-5-503 merely said: “‘Permanent tenure’ applies to any teacher who: (1) [meets the
education requirements]; (2) Holds a valid professional license . . . ; (3) Has completed a
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probationary period of three (3) school years or not less than twenty-seven (27) months . . . ; and
(4) Is reemployed by the board for service after the probationary period.” Unlike today’s version,
§ 49-5-503 (circa May 2011) did not discuss eligibility. Instead, it listed qualities that triggered
tenure, provided that the board took an affirmative action to confer such status. See, e.g., Snell v.
Brothers, 527 S.W.2d 114, 119 (Tenn. 1975) (requiring affirmative board action for grant of
tenure); Ryan v. Anderson, 481 S.W.2d 371, 375 (Tenn. 1972) (same). Here, the board took
affirmative action at the April 11 board meeting after Director Houston recommended Barbee for
tenure. The following day, when Barbee came to work, Barbee had tenure because he had
satisfied all conditions under the Act. Therefore, Director Houston lacked the power to
nonrenew Barbee’s contract without notice and a hearing.
Admittedly, a lay person might not immediately equate reemployment with election and
continued employment, but the statute’s text easily bears this interpretation. Moreover, it is the
only reading that reaffirms the basic structure and logic of the Act. Therefore, I would reverse
the district court’s grant of summary judgment. Because the majority chooses a different and
contrary path, I respectfully dissent.
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