Cora B. Cantrell v. Knox County Board of Education

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

CORA B. CANTRELL, ET AL. v. KNOX COUNTY BOARD OF

EDUCATION, ET AL.

Direct Appeal from the Circuit Court for Knox County

No. 2-774-93 Harold Wimberly, Judge

No. E1999-01557-COA-R3-CV - Decided June 19, 2000

This appeal arises from a hearing in Circuit Court on a petition for certiorari, which sought review

of the actions of the Knox County Board of Education and the Superintendent of the Department of

Public Instruction. The Court held that the Board and the Superintendent acted arbitrarily in its

dismissal of the five teacher aides and held that the aides were entitled to back pay and benefits for

the 1993-1994 Knox County School year, as well as prejudgment interest. On appeal, the teacher

aides take issue with the Circuit Court's decision, insisting that they have causes of action under the

Education Truth in Reporting and Employee Protection Act and for retaliatory discharge and that

they had a reasonable expectation of retaining employment with the school system had they not been

terminated for refusing training to perform catheterizations on students. We affirm the Circuit

Court's judgment with respect to its decision on the teacher aides' claims under the Education Truth

in Reporting Act and retaliatory discharge, but remand for further proceedings on the issue of

whether the aides are entitled to back pay, benefits, and interest for more than the 1993-1994 school

year.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part,

Reversed in Part, and Remanded

GODDARD, P.J., delivered the opinion of the court, in which FRANKS and SWINEY, JJ. joined.

Herbert S. Moncier and Ann C. Short, Knoxville, Tennessee, for the appellants, Cora B. Cantrell,

Joan I. Dozier, Sandra C. Barnard, Margaret H. Schaefer, and Mildred A. Morrell.

Richard T. Beeler and Mary Ann Stackhouse, Knoxville, Tennessee, for the appellees, Knox County

Board of Education and Allen Morgan.

OPINION

This is an appeal from a judgment entered by the Knox County Circuit Court. The

Appellants are Cora B. Cantrell, Joan I. Dozier, Sandra C. Barnard, Margaret H. Schaefer, and

Mildred A. Morrell. They seek to reverse the judgment of the Trial Court against the Appellees, the

Knox County Board of Education and Allen Morgan, in his capacity as Superintendent of the Knox

County Department of Public Instruction.

The Appellants present the following issues, which we restate, on appeal:

1. Whether the Trial Court improperly dismissed for failure

to state a cause of action the claim of the teacher aides

that adverse employment action was taken against them when

they reported their objections to training and performing

catheterizations on students, thereby giving rise to a cause of

action pursuant to the Education Truth in Reporting and

Employee Protection Act of 1989.

2. Whether the Trial Court improperly dismissed for failure to

state a cause of action the claim of the teacher aides

that their employment termination was a retaliatory discharge

for refusal to participate in and/or remain silent about illegal

activities and that the discharge amounted to willful, wanton

or gross negligence.

3. Whether the teacher aides, who pursued their legal

remedies following their discharge on December 1,

1993, had a reasonable expectation of continued

employment in the Knox County School System such that

their damages should not be limited to an award of back pay

and benefits for the remaining 1993-1994 Knox County school

year.

We affirm the judgment of the Trial Court with respect to issues one and two and

remand for further proceedings on issue three regarding damages.

When the 1993-1994 Knox County school year began, Ms. Cantrell, Ms. Dozier, Ms.

Barnard, and Ms. Morrell were assigned to Halls Middle School as teacher aides, and Ms. Schaefer

was assigned to Adrian Burnett Elementary School as a teacher aide.

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During the first months of the 1993-1994 school year, the Appellants were informed

that they would be required to receive training for performing catheterizations on students. When

the Appellants refused to receive training to perform catheterizations on students, they were notified

on November 23, 1993 that their employment with the Knox County School Board would be

terminated at the Board of Education meeting on December 1, 1993.

In their original complaint, the teacher aides had contended that performing

catheterizations was a Class B misdemeanor offense because it was the practice of nursing by

unlicensed personnel under Tennessee Code Annotated § 63-7-120. The Appellees maintained that

the practice of performing catheterizations by teacher aides was an exemption to the statute under

Tennessee Code Annotated § 63-7-102. In June 1995 the State Department of Education issued a

directive stating that it had been unaware of the provisions of Tennessee Code Annotated § 63-7-

101, which provides for the practice of nursing. The Department further states in the directive to

school superintendents and directors that it "had thought that local school personnel such as teaching

assistants who had been trained by medical personnel could perform these medical procedures. The

above referenced statutes indicate that local school personnel who are not licensed by the Health

Related Board but who are performing these medical procedures would be included in the definition

of practicing medicine without a license." Since this directive was issued, the Knox County Board

of Education maintains that it has employed only licensed nurses to perform this procedure.

Before their termination in December 1993, the Appellants had been employed with

the Knox County Board of Education for a number of years:

Ms. Dozier-- 14 years

Ms. Schaefer--9 years (in addition to 1 year of part-time service)

Ms. Barnard--8 years

Ms. Morrell–3 regular years (in addition to 1 year of temporary service)

Ms. Cantrell–1 year, 4 months

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Furthermore, the Appellants who had received performance appraisals received commendable

evaluations, the highest rating, and had been recommended for continued employment.1 John Staley,

Director of Personnel with Knox County Schools, acknowledged that the Appellants were excellent

employees.

On December 30, 1993, the Appellants filed suit in Knox County Circuit Court for

their wrongful employment discharge. The Trial Court took the case under advisement, and on

May 14, 1999 the Trial Court ruled that the Appellants were entitled to back pay and benefits for

only the year in which they were discharged and the prejudgment interest.

Each teacher aide was awarded the following amount:

Ms. Cantrell $ 7,918.99

Ms. Dozier $11,531.23

Ms. Barnard $ 9,650.71

Ms. Schaefer $ 9,922.11

Ms. Morrell $ 7,951.53

In their first issue, the Appellants argue that the Trial Court improperly dismissed for

failure to state a cause of action with respect to the Education Truth in Reporting and Employee

Protection Act of 1989. The Trial Court noted " that the purposes of that act, as set forth in the

statute itself -- referring to, again, TCA 49-50-1401, what we refer to as truth in reporting, education

truth in reporting act -- that the purposes of the act do not cover the factual situation contained in

this case."

1

In her performance appraisal for the 1992-1994 school year, Ms. Barnard received a "need fo r impro veme nt"

rating, but was recommended for continued employment. In her performance appraisal dated May 18, 1992, she

received a "com mend able" rating and wa s recom mend ed for co ntinued emplo ymen t. The reco rd does n ot contain

perform ance ap praisals for M s. Morre ll or Ms. C antrell.

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The Appellants contend that this Act "recognizes a civil cause of action against any

person or employer on behalf of public education employees subjected to disciplinary measures,

discrimination or harassment related to disclosure of educational actions not in the public interest."

They maintain that the Act "encompasses and directly applies to the wrongful employment discharge

of the Educational Assistants in this case." They assert that the Appellants are pubic education

employees who objected both orally and in writing to performing catheterizations on students, and

because of their objections to performing catheterizations, they were terminated from their

employment. Therefore, the Appellants request that their cause of action regarding the Education

Truth in Reporting and Employee Protection Act of 1989 be reinstated.

The Appellees, however, argue that the Trial Court correctly dismissed the

Appellants' claims under the Education Truth in Reporting and Employee Protection Act because

the statute is not applicable to the Appellants' case. The Appellees note that the only court to

interpret the Act is a federal district court in Mosley v. Kelly, 65 F. Supp.2d 725 (E.D. Tenn. 1999).

The Appellees maintain that the district court correctly interpreted the purpose of this Act to be a

reduction of waste and mismanagement of education funds and to prevent "false reporting of

statistical information, including false attendance reports, which can erroneously secure more money

for certain school systems." The Appellants, however, assert that this Court is not bound by

decisions of the federal district court, which incorrectly interpreted the statute.

Tennessee Code Annotated §§ 49-50-1401 through 49-50-1411 comprise the

Education Truth in Reporting and Employee Protection Act of 1989. Section 49-50-1402 provides

the purpose for the Act:

(a) The purpose of this part is to discourage persons, whether

employed, elected or appointed, who are required to furnish statistical

data, reports or other information to local or state departments, agencies,

or legislative bodies, from knowingly and willfully making or causing

to be made any false or inaccurate compilation of statistical data,

reports or information related to the operation of a local education agency

as defined in § 49-1-103. It is the intent of the general assembly to reduce

the waste and mismanagement of public education funds, to reduce

abuses in governmental authority and to prevent illegal and unethical

practices.

(b) To help achieve these objectives, the general assembly declares

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that public education employees should be encouraged to disclose

information on actions of local education agencies that are not in the

public interest, and that legislation is needed to ensure that any employee

making such disclosures shall not be subject to disciplinary measures,

discrimination or harassment by any public official.

Like the court in Mosley, we are of the opinion that the purpose of this Act was to

reduce waste and mismanagement of education funds, and thus, is not applicable to the

circumstances of the Appellants' case. Therefore, this issue is without merit.

In their second issue, the Appellants assert that the Trial Court improperly dismissed

for failure to state a cause of action with respect to the Appellants' claim that their employment was

terminated in retaliation for their refusal to participate in or remain silent about illegal activities, and

that discharge amounted to willful, wanton or gross negligence. The Appellants acknowledge that

the issue involving this claim concerns sovereign immunity and the Governmental Tort Liability

Act, but contends that immunity from suit is removed when conduct "amounts to willful, wanton,

or gross negligence." Thus, the Appellants argue that their retaliatory discharge claim was "based

on willful, wanton, or gross negligence" and should not have been dismissed.

The Appellees, however, argue that the Trial Court properly dismissed the Appellants'

cause of action for retaliatory discharge. The Appellees assert that the Appellants in their original

petition for certiorari alleged "retaliatory discharge for refusal to participate in illegal activities ...

. in violation of Section 50-1-304 of the Tennessee Public Protection Act, commonly known as 'the

whistleblower' statute," but the Appellees contend that in a move to avoid the sovereign immunity

defense, the Appellants amended their claim to allege that their dismissal "amounted to willful,

wanton, or gross negligence."

The Trial Court stated the following with respect to this issue:

There was another motion by respondent to dismiss

the claim for retaliatory discharge. Based upon the authority of

the case determined by Judge Cantrell, the Williamson County

case that we discussed in our previous hearings, the Court

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feels that motion is well-taken and that basis for recovery

is dismissed.

A 1997 amendment to Tennessee Code Annotated § 50-1-304 (commonly known as the

Whistle Blower Statute) brought employees of the State of Tennessee within its purview. Before

adoption of the amendment, this Court had held that the Governmental Tort Liability Act did not

remove the immunity of governmental entities as to certain claims. One of those claims is retaliatory

discharge, which is discussed in Williams v. Williamson County Board of Education, 890 S.W.2d

788 (Tenn. Ct. App. 1994). See Seals v. Jefferson City, an unreported opinion of this Court, filed

in Knoxville on June 2, 1999.

As the Appellees note in their brief, the teacher aides' cause of action arose before the

1997 amendment and statutes do not have retroactive application unless specific language creates

such. Thus, the Trial Court, citing Williams v. Williamson County Board of Education, 890 S.W.2d

788, 790 (Tenn. Ct. App. 1994), correctly held that sovereign immunity is a complete defense for

a retaliatory discharge claim by the Appellants. We affirm the Trial Court's judgment as to this

issue.

Lastly, the Appellants argue that they had a reasonable expectation of continued

employment in the Knox County School System and because of such, they are entitled to damages

for more than their back pay and benefits for the remaining 1993-1994 school year.

The Appellants point out that the Knox County Board of Education acted arbitrarily

in discharging them "in contravention of its own catheterization policy." The Trial Court ruled that

the Board acted arbitrarily regarding its policy which allowed aides uncomfortable with

catheterization not to perform it but then discharged the Appellants who had stated that they would

be uncomfortable in performing such a procedure. The Appellants assert that the "1993-1994 Knox

County School Handbook, Policies, Procedures, Rules and Regulations contains language supporting

an expectation by personnel such as Educational Assistants of continued employment based on

'evaluations' which for newly hired employees is to occur three times within a five year span."

Moreover, the Appellants point out that as educational assistants or teacher aides they can participate

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in pension plans and programs, which typically are not available to limited contract employment for

a school year.

The Appellees, however, argue that the Trial Court correctly limited the Appellants'

damages. The Appellees argue that the Appellants' contracts were for 200 days during the 1993-

1994 school year and were for amounts ranging from $9,600 to $12,642. The Appellees argue that

the Appellants, as teacher aides, were noncertified employees without tenure and do not have an

"automatic right of renewal" in their positions. Furthermore, the Appellees note that the teacher

aides' contracts state that the teacher aides "agree to serve in accordance with the Regulations for the

Knox County Board of Education." The Appellees dispute the Appellants' reading of the Knox

County Schools Handbook regarding periodic evaluations. The Appellees argue that the Handbook

states that teacher aides are appointed annually, and therefore, the Appellants do not have a

reasonable expectation of being rehired. Consequently, they are not entitled to back pay from the

date of their termination on December 1, 1993 through July 21, 1999, the date the final judgment

was entered.

Damages in a breach of contract case place the injured party, as nearly as possible,

in the same position it would have been in had the contract been performed. Hennessee v. Wood

Group Enterprises, Inc., 816 S.W.2d 35, 37 (Tenn. Ct. App. 1991).

In addressing this issue, we look first at the ruling of the Trial Court. The Court held

that the Appellees acted arbitrarily in dismissing the Appellants because of their refusal to participate

in training to perform catheterizations on students. As the Trial Court noted, the Appellees violated

their own policy regarding the training, and therefore, the Appellants are entitled to damages.

The question before us is whether the Appellants had a "reasonable expectation" or

a "reasonable assurance" of employment with the Knox County School Board had they not been

dismissed for refusing to participate in catheterization training. In answering this question, we look

first at the record presented to us on appeal. The Appellants had been employed anywhere from 1

year to 14 years, and nothing in the record indicates that the Appellants would not be recommended

for continued employment. John Staley, Director of Personnel for the Knox County School System,

acknowledged that the Appellants were excellent employees.

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Because we have no case law in Tennessee on the issue of whether noncertified,

nontenured school personnel have a reasonable expectation or reasonable assurance of continued

employment, we reviewed case law from jurisdictions. The cases dealt with whether noncertified,

nontenured personnel were entitled to unemployment compensation during the summer months

because they had a "reasonable assurance" of employment the following school year. Courts in these

jurisdictions held that noncertified, nontenured personnel who have a "reasonable assurance" of

employment the following school year are not entitled to unemployment compensation during the

summer months. McCann v. Ross, 74 A.D.2d 697 (N.Y. App. Div. 1980) (teacher's aide was not

eligible for benefits pursuant to the federal Special Unemployment Assistance Act because she had

a reasonable expectation that her employment would resume following the summer vacation period);

Schoenfeld v. Board of Review, 395 A.2d 528 (N.J. Super. Ct. App. Div. 1978) (because teacher's

aide had an oral understanding that she would return to work after the summer break, she was

ineligible for unemployment benefits under the federal Special Unemployment Assistance Act).

The Appellants' argument that they would have been retained as educational assistants

or teacher aides by the Knox County School Board had it not been for their termination is persuasive.

Although the Appellants were noncertified, nontenured personnel, they certainly could have had

a reasonable expectation or reasonable assurance of retaining their positions with the Knox County

School Board. Nothing in the record indicates that these individuals would not have been retained,

as they had been for many years in most of their cases, but for their dismissal for refusing to

participate in catheterization training.

.

Based on the foregoing, we affirm the judgment of the Trial Court on issues one and

two and remand to the Trial Court for further proceedings on issue three regarding damages. Costs

of the appeal are adjudged against Knox County Board of Education and Allen Morgan.

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