The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 15, 2005 Session
LEE KETCHERSID v. RHEA COUNTY BOARD OF EDUCATION
Appeal from the Chancery Court for Rhea County
No. 9699 Jeffrey F. Stewart, Chancellor
No. E2004-01153-COA-R3-CV - FILED APRIL 28, 2005
Lee Ketchersid, a tenured teacher in the Rhea County School System, appealed her dismissal to the
Rhea County Board of Education (“the School Board”). Following a hearing, the School Board
determined that the evidence supported the charges against Mrs. Ketchersid of insubordination,
incompetence, and inefficiency under the Teachers’ Tenure Act, Tenn. Code Ann. § 49-5-501, et
seq., and voted to terminate Mrs. Ketchersid as a tenured teacher. Mrs. Ketchersid appealed the
School Board’s decision to the trial court, which, following a de novo review, held that her dismissal
was supported by sufficient evidence. Mrs. Ketchersid appeals, arguing that the trial court erred in
this determination. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and SHARON G. LEE, J., joined.
J. Arnold Fitzgerald, Dayton, Tennessee, for the appellant, Lee Ketchersid.
Robert G. Wheeler, Jr. and Deborah A.G. Smith, Nashville, Tennessee, for the appellee, Rhea
County Board of Education.
OPINION
I.
During the 2000-2001 school year, Mrs. Ketchersid, who was certified to teach children in
grades K-12, was a kindergarten teacher at Graysville Elementary School. Due to her failure to meet
the requirements of an improvement plan at Graysville, Mrs. Ketchersid was transferred to Rhea
Central Elementary School at the beginning of the 2001-2002 school year and placed in charge of
a “Title I” classroom of seven third-grade students. These students were identified as being below
their grade level and in need of remedial instruction; the students were not, however, placed in the
classroom due to behavioral or discipline problems.
On October 11, 2001, one of Mrs. Ketchersid’s students came to assistant principal Buddy
Jackson’s office in tears, explaining that Mrs. Ketchersid had “smacked her on the face.” Assistant
Principal Jackson then met with the child and her parents, as well as Mrs. Ketchersid, in an attempt
to determine what had happened. The following day, Jackson and Principal Doug Keylon met with
Mrs. Ketchersid to discuss her treatment of students. At that time, both Jackson and Keylon stressed
to Mrs. Ketchersid the importance of being positive with the children and told her that she was not,
under any circumstances, to put her hands on the students.
In February, 2002, another student’s parents reported to Principal Keylon that Mrs.
Ketchersid had slapped their child. Principal Keylon reported this allegation to Dr. Sue Porter, the
Director of Rhea County Schools. On February 12, 2002, Director Porter and Assistant Director
Dallas Smith, along with Principal Keylon and Assistant Principal Jackson, interviewed some of the
students from Mrs. Ketchersid’s classroom on an individual basis. The students informed the
administrators that Mrs. Ketchersid would place her hands on their faces when she became angry
with them. One student told the group of administrators that Mrs. Ketchersid would often hit him
over the head with a soft-cover textbook. More than one student referred to Mrs. Ketchersid having
pinched their cheeks when she was angry.
Following these meetings with the students, the administrators brought Mrs. Ketchersid in
for a private meeting. When questioned as to whether she had hit students over the head with a
book, Mrs. Ketchersid replied that she had done so when she was angry, and she then proceeded to
demonstrate by taking a legal pad and tapping Principal Keylon on the head. Mrs. Ketchersid also
admitted to placing her hands on the faces of or slapping five out of her seven students. She stated
that she did so when she was angry and when the children were being disrespectful. When asked
when she had last placed her hands on a student’s face, Mrs. Ketchersid admitted that she had done
so that very morning. At the conclusion of this meeting with Mrs. Ketchersid, Director Porter
informed her that, in light of her “complete insubordination” for failing to follow the directives of
Principal Keylon and Assistant Principal Jackson to refrain from placing her hands on the students,
she was not to return to her classroom and that she was henceforth suspended without pay.
On March 14, 2002, Director Porter recommended to the School Board that Mrs. Ketchersid
be dismissed as a tenured teacher from the Rhea County School System, based upon Mrs.
Ketchersid’s alleged insubordination, incompetence, inefficiency, and neglect of duty. The School
Board then recommended Mrs. Ketchersid’s dismissal.
Mrs. Ketchersid requested a hearing before the School Board in order to appeal its decision,
which hearing was conducted on July 15, 2002. At the conclusion of the hearing, the School Board
determined that the charges of insubordination, incompetence, and inefficiency were supported by
the evidence, and the School Board, by a vote of 6 to 2, voted to terminate Mrs. Ketchersid from her
tenured position with the Rhea County School System.
-2-
Mrs. Ketchersid appealed the School Board’s decision to the trial court. After reviewing the
record, the trial court found that Mrs. Ketchersid received a fair hearing and that there was sufficient
evidence to justify her dismissal. From this judgment, Mrs. Ketchersid appeals.
II.
In this non-jury case, our review is de novo upon the record of the proceedings below; but
the record comes to us with a presumption of correctness that we must honor “unless the
preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d). The trial court’s conclusions
of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d
26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).
III.
The issues in this case cause us to focus on the following statutory provisions:
Tenn. Code Ann. § 49-5-501 (2002)
As used in this part, unless the context otherwise requires:
***
(5) “Incompetence” means being incapable, lacking adequate power,
capacity or ability to carry out the duties and responsibilities of the
position. This may apply to physical, mental, educational, emotional
or other personal conditions. It may include lack of training or
experience; evident unfitness for service; physical, mental or
emotional condition making teacher unfit to instruct or associate with
children; or inability to command respect from subordinates or to
secure cooperation of those with whom the teacher must work;
(6) “Inefficiency” means being below the standards of efficiency
maintained by others currently employed by the board [of education]
for similar work, or habitually tardy, inaccurate, or wanting in
effective performance of duties;
(7) “Insubordination” may consist of:
(A) Refusal or continued failure to obey the school laws of
Tennessee, or to comply with the rules and regulations of the board
[of education], or to carry out specific assignments made by the board
[of education], the director of schools or the principal, each acting
-3-
within its own jurisdiction, when such rules, regulations and
assignments are reasonable and not discriminatory;
***
Tenn. Code Ann. § 49-5-511 (2002)
(a)(1) No teacher shall be dismissed or suspended except as provided
in this part.
(2) The causes for which a teacher may be dismissed are as follows:
incompetence, inefficiency, neglect of duty, unprofessional conduct
and insubordination as defined in § 49-5-501.
(3) A director of schools may suspend a teacher at any time that may
seem necessary, pending investigation or final disposition of a case
before the board [of education] or an appeal. If vindicated or
reinstated, the teacher shall be paid the full salary for the period
during which the teacher was suspended.
(4) When charges are made to the board of education against a
teacher, charging the teacher with offenses which would justify
dismissal of the teacher under the terms of this part, the charges shall
be made in writing, specifically stating the offenses which are
charged, and shall be signed by the party or parties making the
charges.
(5) If, in the opinion of the board [of education], charges are of such
nature as to warrant the dismissal of the teacher, the director of
schools shall give the teacher a written notice of this decision,
together with a copy of the charges, and a copy of a form which shall
be provided by the commissioner of education advising the teacher as
to the teacher’s legal duties, rights and recourse under the terms of
this part.
***
Tenn. Code Ann. § 49-5-512 (2002)
(a) A teacher, having received notice of charges pursuant to § 49-5-
511, may, within thirty (30) days after receipt of notice, demand a
hearing before the board [of education], as follows:
-4-
(1) The teacher shall give written notice to the director of schools of
the teacher’s request for a hearing;
(2) The director of schools shall, within five (5) days after receipt of
request, indicate the place of such hearing and set a convenient date,
which date shall not be later than thirty (30) days following receipt of
notice demanding a hearing;
(3) The teacher may appear at the hearing and plead the teacher’s
cause in person or by counsel;
(4) The teacher may present witnesses, and shall have full opportunity
to present the teacher’s contentions and to support them with
evidence and argument. The teacher shall be allowed a full,
complete, and impartial hearing before the board [of education],
including the right to have evidence deemed relevant by the teacher
included in the record of the hearing, even if objected to by the person
conducting the hearing;
(5) The chair of the board [of education] conducting the hearing is
hereby empowered to issue subpoenas for witnesses to compel their
attendance at hearings authorized under this section. All parties to
the proceeding shall have the right to have subpoenas issued by the
chair of the board [of education] to compel the attendance of all
witnesses deemed by such parties to be necessary, for a full and
complete hearing. All witnesses shall be entitled to the witness fees
and mileage provided by law for legal witnesses, which fees and
mileage shall be paid as a part of the costs of such proceeding. The
costs of such proceeding shall be paid by the losing party;
(6) The chair of the board [of education] shall administer oaths to
witnesses, who shall testify under oath;
(7) A record of the hearing, either by transcript, recording, or as is
otherwise agreed by the parties, shall be prepared, if the action of the
board [of education] is appealed, and all actions of the board [of
education] shall be reduced to writing and included in the record,
together with all evidence otherwise submitted;
(8) On request of either party to the trial, witnesses may be barred
from the hearing except as they are called to testify. The hearing may
be private at the request of the teacher or in the discretion of the board
[of education]; and
-5-
(9) The board [of education] shall within ten (10) days decide what
disposition to make of the case and shall immediately thereafter give
the teacher written notice of its findings and decision.
(b) The director of schools or other school officials shall not be held
liable, personally or officially, when performing their duties in
prosecuting charges against any teacher or teachers under this part.
Tenn. Code Ann. § 49-5-513 (2002)
(a) A teacher under “permanent tenure” or “limited tenure” status
who is dismissed or suspended by action of the board [of education]
may petition for a writ of certiorari from the chancery court of the
county where the teacher is employed.
***
(g) The cause shall stand for trial and shall be heard and determined
at the earliest practical date, as one having precedence over other
litigation, except suits involving state, county or municipal revenue.
The review of the court shall be limited to the written record of the
hearing before the board [of education] and any evidence or exhibits
submitted at such hearing. Additional evidence or testimony shall not
be admitted except as to establish arbitrary or capricious action or
violation of statutory or constitutional rights by the board.
(h) The chancellor shall reduce the chancellor’s findings of fact and
conclusions of law to writing and make them parts of the record.
(i) Any party dissatisfied with the decree of the court may appeal as
provided by the Tennessee Rules of Appellate Procedure, where the
cause shall be heard on the transcript of the record from the chancery
court.
IV.
On appeal, Mrs. Ketchersid only asks us to decide whether the trial court erred in its
determination that the School Board was justified in dismissing her as a tenured teacher.
The School Board found sufficient evidence to support the charges of insubordination,
incompetence, and inefficiency, thereby justifying Mrs. Ketchersid’s termination. Insubordination,
as defined in Tenn. Code Ann. § 49-5-501(7)(A), includes the “[r]efusal . . . to carry out specific
assignments made by . . . the principal.” Both Principal Keylon and Assistant Principal Jackson
-6-
testified before the School Board that they specifically instructed Mrs. Ketchersid, in October of
2001, to refrain from placing her hands on any of her students again. Mrs. Ketchersid testified that
it was her understanding of their instructions that she was not to touch the student who made the
October complaint, but that the directive did not extend to the other students in the class. However,
she did admit that it made sense that they were instructing her not to touch any of the students.
When Mrs. Ketchersid was questioned following the February, 2002, complaint, she admitted that
she had continued to place her hands on the students’ faces, even as recently as that very morning.
There is no question that Mrs. Ketchersid refused to follow a specific directive from Principal
Keylon. See Tenn. Code Ann. § 49-5-501(7)(A). We therefore agree with the trial court’s finding
that “[Mrs.] Ketchersid’s refusal to refrain from striking students [is] an insubordinate act as defined
by the statute.”
The definition of incompetence includes “evident unfitness for service” and possessing a
“condition making teacher unfit to instruct or associate with children.” Tenn. Code Ann. § 49-5-
501(5). Mrs. Ketchersid admitted in the hearing before the School Board that she would place her
hands on the children’s faces in order to get them to pay attention to her:
OK the smacking [the children] are referring to is when I took hold
of their face, to direct their attention to me, because they wouldn’t,
they would misbehave and not look at me. They weren’t looking at
me, they weren’t paying attention to the lesson, you know they
weren’t paying attention, so I took their face to look directly at me
and then I think a couple of times I did go pat, pat, pat, but they were
like punctuation marks. I was telling the child, I was trying to make
them understand that I mean business. That they had to obey me.
Director Porter testified that, when Mrs. Ketchersid was questioned by the administrators on
February 12, 2002, she complained that her class of students was “just all bad” and she had “nothing
but the bad” students. Director Porter explained to Mrs. Ketchersid that the children were placed
in her classroom based on their being below grade level and not due to any discipline problems.
Mrs. Ketchersid, however, continued to refer to the children as bad and disrespectful, telling Director
Porter that she placed her hands on the children’s faces “when [she] gets angry and when [the
children] are disrespectful.”
As Mrs. Ketchersid was certified to teach – and had taught – K-8 students for over ten years,
it is shocking to this court that she felt it necessary to grab the faces of her third-grade students or
hit them over their heads with a book in order to get their attention. Certainly, a teacher with that
much experience should be capable of controlling her anger and handling her students in a more
professional – and safe – manner. Without question, Mrs. Ketchersid’s tactics amount to “evident
unfitness for service.”
-7-
There is also sufficient evidence, as found by the trial court, to support a finding of
inefficiency, which is defined to include “wanting in effective performance of duties.” Tenn. Code
Ann. § 49-5-501(6). Assistant Principal Jackson testified before the School Board that, when he had
observed Mrs. Ketchersid’s classroom prior to her February 12, 2002, suspension, he was forced to
call down a child who was misbehaving because Mrs. Ketchersid was doing nothing to control the
situation. Jackson stated that he had never had to call down a child before while observing any other
classroom. Mrs. Ketchersid even admitted at the hearing that she had failed to appropriately
discipline her students and make them behave, in spite of her 24 years of teaching experience.
Again, we agree with the trial court’s finding that “[Mrs.] Ketchersid’s need to resort to such
physical tactics, as well as the inability to maintain an orderly classroom, constitutes sufficient
evidence of inefficiency and incompetence.”
Furthermore, there is ample evidence that the School Board conducted a fair and impartial
hearing, dismissing the charge of neglect of duty upon finding that the evidence did not support it.
In addition, the School Board, as noted by the trial court, engaged in “extensive discussion and
debate as to the appropriate disposition of the case.” In light of all of this evidence, we find no error
in the trial court’s determination that the School Board was justified in dismissing Mrs. Ketchersid.
V.
While Mrs. Ketchersid presents only one issue on appeal, the School Board construes her
argument as raising – or attempting to raise – two additional issues, to which the School Board has
chosen to respond. First, the School Board asserts that Mrs. Ketchersid “makes a vague allegation
that several provisions of the collective bargaining agreement between the [S]chool [B]oard and the
teacher’s association were violated in this case.” Second, the School Board states that Mrs.
Ketchersid “argues that she was ‘demoted from her job as Kindergarten Teacher at the Graysville
Elementary School, prior to there being any charges made against her . . . .’”
With respect to the first issue, our thorough review of the record reveals that at no time did
Mrs. Ketchersid raise with the trial court the issue of violations of the collective bargaining
agreement. It is well-settled that issues not raised at the trial court level may not be raised for the
first time on appeal. Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991).
However, even if Mrs. Ketchersid had raised this issue below – and we do not believe that she did
– she has failed to include a copy of the collective bargaining agreement in the record. Without that
document, we are unable to address this purported issue in any event, as there is no proof in the
record concerning it.
As to the second issue, there is nothing in the record to indicate that Mrs. Ketchersid ever
raised the issue of her “demotion” before the trial court; as such, she is not permitted to raise it now.
See Simpson, 810 S.W.2d at 153.
-8-
VI.
The judgment of the chancery court is affirmed. This case is remanded for the collection of
costs assessed below, pursuant to applicable law. Costs on appeal are taxed to the appellant, Lee
Ketchersid.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
-9-