Rogelynn Emory v. Memphis City Schools Board of Education, Now Known As Shelby County Board Of Education

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

February 10, 2016 Session

ROGELYNN EMORY v. MEMPHIS CITY SCHOOLS

BOARD OF EDUCATION, NOW KNOWN AS

SHELBY COUNTY BOARD OF EDUCATION

Appeal by Permission from the Court of Appeals

Chancery Court for Shelby County

No. CH062420 Walter L. Evans, Chancellor

___________________________________

No. W2014-01293-SC-R11-CV – Filed January 13, 2017

___________________________________

This case arises out of the termination of a tenured teacher. After a three-day hearing, the

school board concluded that there was ample evidence of the teacher‟s unsatisfactory job

performance, so it terminated her employment. In the trial court review of the school

board‟s decision, the teacher argued that she should be reinstated with back pay because

her school board hearing occurred well beyond the thirty-day period set forth in the

Teachers‟ Tenure Act. The trial court affirmed the termination and the teacher appealed.

The Court of Appeals declined to reinstate the teacher based on the untimeliness of the

school board hearing but it awarded her partial back pay. On appeal, we first clarify the

standard of judicial review for the termination of a tenured teacher under the Tenure Act.

Second, we reverse the Court of Appeals‟ award of partial back pay to the teacher

because the relief ordered is without basis in the Tenure Act. Finally, because the teacher

failed to raise to the school board any objection as to the timeliness of her hearing, we

hold that the issue is not properly before this Court. Accordingly, we affirm the trial

court‟s decision to uphold the termination of the teacher‟s employment.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Court of

Appeals Reversed; Judgment of the Trial Court Affirmed

HOLLY KIRBY, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK and SHARON G. LEE, J.J., joined.

Jeff Weintraub, Memphis, Tennessee, for the appellant, Shelby County Board of

Education

Mark Allen, Memphis, Tennessee, for the appellee, Rogelynn Sue Emory

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Rogelynn Emory began working full-time as a teacher in the Memphis City

School System1 in 1977 and eventually attained tenured status. Ms. Emory was certified

to teach French, English and Social Studies, and she was also certified in Administration.

During her career with Memphis City Schools, Ms. Emory taught French and/or English

at a number of different high schools in Memphis.2

During the 1996-1997 school year, Ms. Emory began exhibiting unusual stress

while at school. She had trouble managing her fears and emotions when instructing

students, which in turn led to difficulty controlling her classroom. Written evaluations

and witness testimony indicated that, during that time, Ms. Emory‟s classroom instruction

was poor and she did not give proper attention to student needs and differences. Her

behavior became increasingly erratic and irrational, and administrative attempts to help

her were unavailing. Her psychiatrist diagnosed her with post-traumatic stress disorder

and paranoia. Eventually, in April 1999, Ms. Emory was placed on indefinite leave to

seek medical attention. She stayed on leave for several years.

In 2003, Ms. Emory‟s medical leave ended. She resumed teaching in the Memphis

City School System in November 2003. However, despite the end of her medical leave,

Ms. Emory‟s problems persisted.

During the 2004-2005 school year, Ms. Emory taught eleventh-grade English at

Central High School in Memphis. Early in the school year, Central High principal Greg

McCullough observed that there was very little learning going on in Ms. Emory‟s classes.

He saw “major classroom management issues,” to the point that he viewed her class as

“out of control.” Ms. Emory repeatedly called the administrative office for classroom

help on problems that a seasoned teacher should have been able to handle, such as

classroom noise. She displayed a low level of teaching skill even during planned

classroom observation. From Mr. McCullough‟s vantage point, the students did not

appear to be the issue. All five of Ms. Emory‟s classes had disruption and chaos, but

other teachers with the same students in their classes experienced far fewer problems.

1

The Memphis City School System is now known as the Shelby County School System.

2

During her career, Ms. Emory taught at the following schools: Melrose High School, Kingsbury

High School, Hillcrest High School, Treadwell High School, and Central High School.

-2-

Mr. McCullough felt that the problems were Ms. Emory‟s poor classroom management

and her low level teaching skills.

Repeated administrative attempts to assist Ms. Emory and help her improve

proved futile. She blamed her difficulties on students and the administration and was not

receptive to either advice or assistance. Ultimately, Mr. McCullough recommended that

the Memphis City Schools Board of Education (the “Board”) terminate Ms. Emory‟s

employment at the end of the school year.

After receiving Mr. McCullough‟s recommendation, the Superintendent of the

Memphis City Schools, Dr. Carol Johnson, initiated termination proceedings pursuant to

the Teachers‟ Tenure Act (“Tenure Act”), codified at Tennessee Code Annotated sections

49-5-501 to -515 (2006).3 In a letter to the Board dated September 20, 2005, Dr. Johnson

set out Ms. Emory‟s troubled employment history with the school system and her

unsatisfactory job performance dating back to the 1996-1997 school year.4 Under the

3

The Tenure Act has been significantly amended since the events in this case occurred. For

purposes of this opinion, we apply the Tenure Act as codified in 2005 and 2006.

4

The text of the letter reads as follows:

Dear Ladies and Gentlemen:

Ms. Rogelynn Emory has been an employee of the Memphis City School System

since October 7, 1976, when she was hired as a substitute teacher. She was given an

interim position at Melrose High School from 1977-1979 and received a regular teaching

position beginning in the 1979-80 school year at Kingsbury High School. She was

transferred to Hillcrest High School in July 1983 and Treadwell High School in October

of 1998. After unsatisfactory performance at both Hillcrest and Treadwell, she was given

a final opportunity to succeed at Central High School beginning November 5, 2003. For

the reasons given below, her performance at Central High School has also been

unacceptable and her termination is recommended. Throughout her career, Ms. Emory

has taught French and/or English at the high school level.

Since at least the 1996-97 school year at Hillcrest and continuing to the present

through her assignments at Treadwell and Central, Ms. Emory has displayed an ongoing

inability to control her classes and to control her own fears and emotions when dealing

with her classes. At Hillcrest, she created bad relationships with her students by referring

to them as criminals and drug users. On one occasion, she called 911 to seek to have the

police come to the school because she had been hit on the hand by a penny. She refused

counsel and advice from the principal, Mr. Sammy B. Hall, and ultimately Mr. Hall

requested that she be transferred.

At Treadwell, Ms. Emory repeated her disruptive class pattern of conduct and her

lack of classroom control. At Treadwell, she was given an assignment, French I and II

and to a seventh grade honors English class. Both previous teachers of these classes and

-3-

the substitute who had been teaching them prior to Ms. Emory‟s arrival had not

experienced disciplinary problems[,] and in fact these were very desirable assignments.

To the amazement of the school Principal, Ms. Emory, at the outset of her teaching at

Treadwell, began to berate her classes and tell them that “She did not come to Treadwell

to die.” She remained irrational when the principal, Mr. John L. Malone, PhD., tried [to]

calm and correct her.

A similar pattern of conduct continued at Treadwell with Ms. Emory

complaining that students were criminals and were running over her. Minor incidents

would lead to hysteria, and very little learning [was] taking place in her classrooms

because of the disruption and lack of control that she herself was creating. Her

classrooms also showed poor preparation for instruction and poor attention to student

needs and differences.

In an attempt to assist Ms. Emory, she was allowed leave time and an opportunity

to receive professional attention for her problems with fear and lack of self-control. Also,

at the request of her own physician she was given a transfer away from the Treadwell

setting. She was allowed to teach at Central High School beginning November 5, 2003.

Her problems of poor preparation and presentation and poor classroom management

reasserted themselves at Central. At the observation of [the] Principal, she was hurting

her high school English students because of her poor job performance. The principal,

Mr. Gregg McCullough, exerted himself as much as possible to support and assist Ms.

Emory. His office dealt with an excessive number of disciplinary referrals from Ms.

Emory‟s classes. Mr. McCullough, like her previous principals, counseled with her and

provided her with written plans of improvement, which she resisted and did not

implement. Ms. Emory‟s classes at Central were frequently disrupted with persons not

on task. On occasion, Ms. Emory would not even be aware that the principal had stopped

at the door because of the disruption of her room. On other occasions, the students were

obviously uninterested in the subject and very few even had their books open or materials

out. Throughout her time at Central, her class was frequently out of control and no sign

of learning or instruction was apparent. Mr. McCullough correctly concluded that this

situation was not fair to the students and that continuing the pattern of unsatisfactory

teaching and transfers was unfair to the system. He therefore recommended termination

in which the Department of Human Resources and I strongly concur.

Based on the foregoing, it is my belief that Ms. Emory should be terminated for

the following reason as stated in Tennessee Tenure Law: “Inefficiency” as defined in

T.C.A. §49-5-501(5): “Being below the standards of efficiency maintained by others

currently employed by the Board for similar work; habitually tardy, inaccurate, or

wanting in effective performance of duties.

It is requested that the Board review this letter pursuant to T.C.A. §49-5-511 and

determine that the charges are of such nature as to warrant the dismissal of the teacher

and direct that proceedings commence and notice be given under the Tennessee Tenure

Law.

Respectfully submitted,

-4-

Tenure Act, Dr. Johnson recommended that the Board terminate Ms. Emory‟s

employment on the ground of “inefficiency.”5 See Tenn. Code Ann. § 49-5-511(a)(2).

In a letter dated September 30, 2005, Dr. Johnson notified Ms. Emory of the

charges against her. The letter attached a statement of Ms. Emory‟s rights under the

Tenure Act and a copy of the written charges against her. It informed Ms. Emory that

she had thirty days to request a hearing before the Board on the charges.

In a letter to Dr. Johnson dated October 18, 2005, Ms. Emory requested a hearing

before the Board on the charges against her. The letter included the name and contact

information for Ms. Emory‟s Tennessee Education Association attorney and asked Dr.

Johnson to contact her attorney to determine “a mutually agreeable date for a hearing.” A

stamp on the letter indicates that it was received by the Superintendent‟s office on

October 20, 2005.

In a letter dated November 11, 2005, the Director of the Memphis City Schools

Division of Labor and Employee Relations, James Davis, acknowledged receipt of Ms.

Emory‟s request for a tenure hearing. Mr. Davis said in the letter that he would “get

some dates that the Board Commissioners are available to hear your case and advise you

of when the hearing is scheduled.”

On April 7, 2006, Tennessee Education Association attorney Virginia McCoy sent

a letter to the Memphis City School System, notifying them that she was replacing Ms.

Emory‟s prior attorney.

Board Hearing

On November 1, 2, and 8, 2006, the Board conducted a three-day hearing on Ms.

Emory‟s appeal of the charges against her. Ms. Emory was represented by Ms. McCoy,

who is not the attorney of record in this appeal.

Dr. Carol R. Johnson

Superintendent

5

As discussed below, Section 49-5-501(a)(2) provides that a tenured teacher may be dismissed or

suspended for “incompetence, inefficiency, neglect of duty, unprofessional conduct and insubordination .

. . .” “Inefficiency” is defined as “being below the standards of efficiency maintained by others currently

employed by the board for similar work, or habitually tardy, inaccurate, or wanting in effective

performance of duties.” Tenn. Code Ann. § 49-5-501 (2006.)

-5-

At the hearing, Mr. McCullough testified about his observations regarding Ms.

Emory‟s teaching difficulties, outlined above. The Board also proffered the testimony of

Central High‟s assistant principal, Gary Steverson, who observed similar problems with

Ms. Emory‟s teaching. One of Mr. Steverson‟s main areas of responsibility was student

discipline, and he said that Ms. Emory got the administration involved in disciplinary

issues in her classroom nearly every day. He testified that the administration had

received complaints from some students and parents that the students in Ms. Emory‟s

classes were not getting what they needed for college preparation. Ms. Emory did not

indicate to Mr. Steverson that emotional or mental problems contributed to her classroom

issues. Despite administrative efforts to help Ms. Emory, Mr. Steverson said, her job

performance got progressively worse over the course of the school year.

The Board also offered testimony from other school administrators and other

teachers who worked with Ms. Emory after her return from medical leave. They

corroborated the testimony from Principal McCullough and Assistant Principal Steverson

regarding Ms. Emory‟s poor classroom management, lack of teaching skills, and

unwillingness or inability to receive constructive criticism and improve, and supported

the written charges against Ms. Emory.

In response, Ms. Emory presented the testimony of several witnesses. Alberta

Hardaway taught with Ms. Emory at Central High School. She testified that Ms. Emory

was “great” at explaining the lessons to students; she said that Ms. Emory was very

knowledgeable and felt that she could be an effective teacher. Roosevelt Hancock, Jr.

was an assistant principal at Hillcrest while Ms. Emory taught there. Mr. Hancock

testified that Ms. Emory “did her job” teaching classes “without anything out of order”

but had students “who did not want to adhere” to the rules. However, Mr. Hancock

conceded that Ms. Emory had only partial control over her classroom, and he

acknowledged that this was not sufficient. Fellow Hillcrest foreign language teacher

Diane Noyes described Ms. Emory as an excellent, conscientious teacher who “tried her

best to teach these children.” However, both Ms. Noyes and Mr. Hancock had heard Ms.

Emory refer to her students as “criminals.”

Ms. Emory testified as well. In her testimony, Ms. Emory described incidents

dating back to the 1990s involving student behavior that was upsetting or even traumatic

for her.6 She testified about numerous grievances after she returned from medical leave,

stemming either from student misconduct or administrative admonitions that she believed

were without basis. Nevertheless, in response to a Board member‟s question, Ms. Emory

6

In her testimony, Ms. Emory described students throwing things at her, such as pencils, coins,

and once a book. She repeatedly referred to herself as “a battered teacher.”

-6-

maintained that she had no lingering psychological effects from all of these incidents.

She insisted that she was an effective teacher and that she wanted to continue teaching.

At the close of the proof, the Board deliberated at some length. After deliberation,

the Board voted unanimously to sustain Ms. Emory‟s dismissal and to adopt the findings

as set forth in the written notice of charges. On November 9, 2006, the Board terminated

Ms. Emory from her tenured position.

Chancery Court Proceedings

In December 2006, Ms. Emory, representing herself, filed a “Petition for Judicial

Review” in the Chancery Court of Shelby County seeking judicial review of the Board‟s

decision. The petition alleged that the Board violated Tennessee Code Annotated section

49-5-512 by failing to hold her hearing within thirty days from receipt of her letter

demanding a hearing, that the dismissal was in retaliation for unrelated litigation she had

initiated, and that the Board‟s decision was arbitrary and capricious.

For reasons that do not appear in the record, there was no activity in the case for

two years. In October 2008, the Board‟s attorney filed a notice of appearance. The

record contains no further action by either party for over two years thereafter, until it was

finally dismissed for lack of prosecution in April 2011. Shortly after the dismissal for

lack of prosecution, Ms. Emory‟s new attorney, her counsel in this appeal, filed a notice

of appearance. The trial court then set aside its order dismissing the case.

In June 2013, the trial court held a hearing on Ms. Emory‟s petition. At the

hearing, Ms. Emory took the position that the Board‟s decision was arbitrary and

capricious. She sought to present additional evidence regarding her contention that the

Board violated Tennessee Code Annotated section 49-5-512(a)(2) by not providing Ms.

Emory with a hearing within the required 30-day period. Once the thirty-day period for

Ms. Emory‟s Board hearing lapsed, she contended, the Board lost jurisdiction to

terminate Ms. Emory‟s employment. At that point, Ms. Emory argued, in order to

terminate her employment, the Board was required to re-issue its notice of the charges

and start the termination process over.7 She asked the trial court to permit her to submit

7

Ms. Emory also argued that her termination was due to a disability. The Board contended that

any argument regarding an alleged disability was improper because the case was not a disability

discrimination lawsuit. The Board also noted that any argument to the effect that Ms. Emory was

disabled and needed accommodation was at odds with her Board testimony that she had no mental

infirmities and was ready and able to work. In this appeal, Ms. Emory raises no issues regarding these

allegations, so we do not address them.

-7-

additional evidence, order reinstatement, and award Ms. Emory back pay dating back to

the date of her suspension.

In response, the Board noted that Ms. Emory was represented by counsel in the

Board hearing, and it observed that she received a multi-day hearing with numerous

witnesses and exhibits and ample opportunity to put on her own proof. The Board

pointed to overwhelming proof supporting its decision to terminate Ms. Emory‟s

employment, demonstrating that it was neither arbitrary nor capricious. It opposed the

introduction of any evidence that was not before the Board in its hearing. The Board

emphasized that, over the course of the entire Board hearing, neither Ms. Emory nor her

counsel raised the issue of the delay. The Board attorney, who had participated in the

Board hearing, explained to the trial court that the delay in the termination hearing was

consensual and was the result of the parties‟ joint effort to balance the schedules of the

many persons required to participate in the hearing, including the attorneys and the

citizen Board members.8 The Board argued that Ms. Emory was not entitled to relief

because she could not show that the delay prejudiced her right to a full and fair hearing.

8

During the Board‟s hearing, the parties‟ lawyers and the Board discussed the scheduling of the

hearing, the length of the hearing and the efforts of the Board to give Ms. Emory a full hearing:

MS. McCOY: These were the Board‟s dates.

DR. JOHNSON: I understand that, but every night you schedule, they are going -- this is

a working board. I just need for people to understand, they work very hard, they‟re at

something almost every night. And so I just feel like I need to say that because I think

people think of this as a job, that people just come and go and this Board doesn‟t.

They are very committed to hearing, but I think that at some point -- they do start very

early with meetings and they go very late and so -- and almost everybody at the table has

another full-time real job.

At the trial court hearing, the Board‟s attorney repeatedly indicated that the delay in setting the

Board hearing was consensual. He stated:

I‟ve done a number of those hearings over the past years, Your Honor, none of them have

ever been within 30 days. It‟s a fact of which the Board is aware. It‟s a fact of which the

TEA is aware, and the teachers are aware.

It can‟t be done. Our Board members work during the day, so they have to find times to

meet at night. We have to work with the teacher and with the teacher‟s attorney, the

TEA, my schedule or whoever is handling the hearing, all that has to be worked out. It‟s

done consensually. I was involved in that one. I know that‟s what happened here.

-8-

In response to questions from the trial court, Ms. Emory‟s counsel said that, even

if the date of the hearing had been consensual, he‟d seen no documents stating that it was.

Also in response to the trial court‟s inquiry, Ms. Emory‟s attorney conceded that the

delay had no effect on the outcome of the hearing. Regardless of prejudice, Ms. Emory

insisted, the Tenure Act clearly required a hearing within thirty days and Ms. Emory‟s

hearing was not held in thirty days; so, she was entitled to reinstatement.

The trial court permitted Ms. Emory‟s counsel to make an offer of proof, which

consisted of the additional documents he asked the trial court to consider. The Board‟s

attorney submitted several documents as well, and the parties stipulated as to the

authenticity of all of the additional documents. However, the Board maintained that any

delay in conducting the hearing was harmless error, so it asked the trial court not to

consider anything outside of the record that was before the Board. Both parties were

asked to submit proposed findings of fact and conclusions of law. The trial court then

took the matter under advisement.

In late October of 2013, the trial court entered an order affirming the Board‟s

decision. In a separate statement of factual findings and conclusions of law, the trial

court set out at length the evidence presented by both parties at the Board hearing. It

noted that, during the Board hearing, Ms. Emory “did not complain about her hearing

being untimely or about any prejudice to her caused by its delay.” The court concluded

that the testimony before the Board “demonstrated that [Ms. Emory] had severe

deficiencies in her teaching ability, which includes classroom-management skills, for

several years.” It deemed the evidence “more than sufficient” to support the Board‟s

conclusion that Ms. Emory‟s teaching skill was below the required standard and to justify

its decision to terminate her employment.

As to the Board‟s delay in conducting the hearing, the trial court noted that Ms.

Emory had notice and an opportunity to be heard. It stated, “The fact that the hearing

before the Board occurred beyond the statutory 30-day period did not affect Ms. Emory‟s

substantial rights. . . . [V]iolations of procedural aspects of the tenure law do not entitle a

plaintiff to damages if the termination was justified.” It cited federal cases to the effect

that a deprivation of procedural due process would entitle a terminated teacher to

substantive relief only if the teacher showed that she was damaged by the procedural

violation. The trial court distinguished Thompson v. Memphis City Schools, 395 S.W.3d

616 (Tenn. 2012), on the basis that, in that case, the noncompliance with the Tenure Act

was so extensive that it amounted to a violation of the teacher‟s substantive rights. The

trial court added: “There is no evidence in the record that [Ms. Emory] objected or did

not consent to the date chosen for the hearing. [Ms. Emory] concedes that she has not

been harmed or prejudiced by the delay of the hearing.”

-9-

In November 2013, Ms. Emory filed a motion to alter or amend the trial court‟s

judgment. Ms. Emory‟s attorney noted that the findings of fact and conclusions of law

did not refer to the additional exhibits submitted to the trial court, and he sought to clarify

whether the trial court had considered them. He reiterated the argument that the Board

violated the Tenure Act by failing to give Ms. Emory a hearing within 30 days of her

request and contended that the remedy was for the Board to reinstate her. He conceded

that the Board could immediately reinstitute the charges against Ms. Emory but felt that

doing so would permit him to pursue a more effective strategy in the new hearing.

In response to the trial court‟s question about the delay, Ms. Emory‟s counsel said,

“[Ms. Emory] had counsel . . . . She was represented by [Memphis Education

Association] . . . like most every other teacher. I don‟t know why it got put off. I wasn‟t

representing her. . . . I don‟t know what happened.” He asserted, “I don‟t know why [Ms.

Emory‟s] counsel didn‟t say anything at the [Board] hearing about [the delay], but I don‟t

think counsel had to because . . . the mandates of the Tennessee [Tenure] Act are clear,

they have to [hold the hearing] within . . . 30 days.” After Ms. Emory‟s counsel

conceded that her attorney did not raise the delay as an issue before the Board, the trial

court asked him about “present[ing] a new [issue] in the, in the chancery court where it

was not raised before the board?” Ms. Emory‟s counsel claimed:

I get to do that. It‟s a de novo hearing, Judge. I get to raise a legal question

right now that‟s never been raised before . . . the school board. . . . I can‟t

raise it in the Court of Appeals, but I have to raise it to you. And that‟s

what I‟m doing.

At the conclusion of the hearing on the motion to alter or amend, the trial court

reiterated that the record before the Board supported the decision to terminate. It stated:

[T]he primary and moving concern that [Ms. Emory] has at this point is that

it took 300 something days from her termination day for her to have a

hearing. But notwithstanding the extensive time that it took to bring the

matter to a hearing, the issue of the delay was never considered by . . . the

board.

The trial court concluded that Ms. Emory had not established that, “had that issue

been presented,” the result would have been different. It allowed the additional

documents to be part of the record but said that Ms. Emory had not shown that they

would have changed the outcome. The trial court denied the motion to alter or amend.

Ms. Emory appealed.

- 10 -

Court of Appeals Decision

On appeal, the Court of Appeals indicated that the trial court had mischaracterized

Ms. Emory‟s claim as based on an alleged deprivation of procedural due process. Emory

v. Memphis City Sch. Bd. of Educ., No. W2014-01293-COA-R3-CV, 2015 WL 1934397,

at *3-4 (Tenn. Ct. App. Apr. 29, 2015), perm. app. granted (Sept. 18, 2015). It noted that

the Tenure Act provides greater protections to teachers than the minimal constitutional

due process requirements, and it framed the issue as whether Ms. Emory received the

statutory protections afforded her under the Tenure Act. Id. at *4.

After discussing Thompson at length, the Court of Appeals turned to the question

of whether the statutory provision requiring the Board to conduct its hearing within thirty

days of the teacher‟s demand is “mandatory” or “directory.” Id. at *4-7 (citing Tenn.

Code Ann. § 49-5-512(a)(2); Thompson, 395 S.W.3d at 618-630). It acknowledged that

the statute uses the word “shall” in connection with the thirty-day period for the hearing

but noted that statutory requirements related to the time for performing an act may be

construed as directory rather than mandatory. Id. at *6. It noted that the primary purpose

of the Tenure Act is to protect teachers from arbitrary dismissals and that the essential

purpose of section 49-5-512 is “to ensure that tenured teachers are provided a full and fair

pre-termination hearing.” Id. at *7. The time requirement for the hearing, it held, is not

“fundamental” to the statute. It also observed that the statute contains no language

indicating that “the failure to provide a hearing within the specified time period renders

the proceedings void.” Id. Accordingly, the Court of Appeals held that the “timely

hearing requirement in Section 49-5-512(a)(2) is directory rather than mandatory.” Id.

At that point, the appellate court expressed concern that its holding that the thirty-

day hearing provision is directory rather than mandatory, coupled with the absence of any

penalty for a failure to hold the hearing within thirty days, “could render the provision

meaningless.” Id. It declined to rule that the Board‟s failure to hold Ms. Emory‟s

hearing within thirty days rendered the Board‟s proceedings void, but it felt that “some

sanction . . . is necessary.” Id. The appellate court noted that “the only prejudice Ms.

Emory suffered as a result of the delayed hearing is that she was suspended without pay

following her demand for a hearing for a number of days that exceeded the statutory

limit.” Id. “Accordingly,” it held, “the proper remedy is an award of back pay for the

additional days that Ms. Emory was suspended without pay and without a hearing in

violation of the Tenure Act.” Id. The Court of Appeals then reversed the judgment of

the trial court and remanded the case to the trial court to determine the amount of back

pay to which Ms. Emory was entitled. Id.

- 11 -

Both parties filed applications for permission to appeal to this Court. We accepted

both applications.

ISSUES ON APPEAL

On appeal, the Shelby County Board of Education raises the following issue:

“Whether the Court of Appeals erred in holding that Ms. Emory was entitled to back pay

when the Tenure Act does not prescribe an award of back pay when a tenured teacher,

who has been terminated, does not receive a tenure hearing within 30 days of requesting

it?”

Ms. Emory also challenges the remedy crafted by the Court of Appeals, but, not

surprisingly, frames the issue differently: “Does the Court of Appeals have the authority

under the Tenure Act to award partial back pay where Tenn. Code Ann. § 49-5-511(a)(3)

requires an award of full salary without offset?” In addition, Ms. Emory raises three

more issues:

(1) Whether the Tenure Act‟s provision at Tenn. Code Ann. § 49-5-

512(a)(2) requiring that a hearing for a suspended or dismissed teacher

“shall not” be set later than 30 days following the receipt of the demand for

a hearing is mandatory?

(2) Whether the Tenure Act at Tenn. Code Ann. § 49-5-511(a)(1) prohibits

the discharge of a tenured teacher when there is a violation of Tenn. Code

Ann. § 49-5-512(a)(2)?

(3) Whether the Appellee is entitled to reinstatement and full back pay

under the Tenure Act?

STANDARD OF REVIEW

Tennessee Code Annotated section 49-5-513 affords a tenured teacher whose

employment has been terminated by a school board the right to judicial review of the

school board‟s decision. Opinions from our intermediate courts have differed somewhat

on the scope of the trial court‟s review. See, e.g., Ripley v. Anderson Co. Bd. of Educ.,

293 S.W.3d 154, 156 (Tenn. Ct. App. 2008) (citing Lee v. Franklin Special Sch. Dist. Bd.

of Educ., 237 S.W.3d 322, 329 (Tenn. Ct. App. 2007)) (“The chancery court‟s review, as

contemplated by this statute, is a de novo review wherein the chancery court does not

attach a presumption of correctness to the school board‟s findings of fact, nor is it

confined to deciding whether the evidence preponderates in favor of the school board‟s

determination.”); cf. Smith v. Williams, No. 01A01-9409CH00431, 1995 WL 498723, at

- 12 -

*4 (Tenn. Ct. App. Aug. 23, 1995) (citing Goodwin v. Metro. Bd. of Health, 656 S.W.2d

383, 387 (Tenn. App. 1983) (“Judicial review of a teacher dismissal case pursuant to

T.C.A. § 49-5-513 requires the chancery court to review the transcript of the hearing

before the board in order to determine whether there was any material evidence to

support the board‟s decision. If there is, it is the responsibility of the trial court to affirm.

On the question of whether the Board acted arbitrarily, capriciously or illegally, the trial

court may hear new evidence and must make independent findings in this regard. Our

scope of review on appeal from chancery court is no greater than that court‟s review of

the Board decision.”). We will endeavor to clarify.

Prior to 1992, the Tenure Act made no provision for a record of the school board‟s

hearing in a teacher dismissal case. The Act provided that, in the chancery court‟s review

of a school board‟s decision, “[t]he hearing shall be de novo and may be on deposition

and interrogatories, or on oral testimony.” Cooper v. Williamson Cnty. Bd. of Educ., 746

S.W.2d 176, 179 (Tenn. 1987) (alteration in original) (quoting Tenn. Code Ann. § 49-5-

513(g) as of 1986). In Cooper, this Court discussed the difference between the common

law writ of certiorari and the statutory writ of certiorari, broadly recognizing:

[T]he distinction between the writ of certiorari as employed under the

common law, for the review of the legality of the action of a board or

inferior tribunal as within its jurisdiction or powers, and the same writ

authorized by statute to be employed, in lieu of an appeal, to review and

correct errors of fact and law committed by such inferior tribunal.

Id. (quoting Anderson v. City of Memphis, 72 S.W.2d 1059, 1060 (Tenn. 1934). It held

that the Teacher Tenure Act, as it existed at that time, set forth a “species of the statutory

writ of certiorari” that required the chancery court to “redetermine both the facts and the

law from all the evidence before the court.” Id. at 179, 181.

In 1992, the legislature enacted comprehensive legislation related to education that

included amendments to the Tenure Act. The amendments required that teachers be

provided “a full, complete, and impartial hearing before the board, including the right to

have evidence . . . included in the record of the hearing.” The Teachers‟ Tenure Act, ch.

535, 1992 Tenn. Pub. Acts (amending Tenn. Code Ann. § 49-5-512). They also

mandated the preparation of a record of the hearing and directed that all actions by the

school board be “reduced to writing and included in the record, together with all evidence

otherwise submitted.” The Teachers‟ Tenure Act, ch. 535, 1992 Tenn. Pub. Acts

(amending Tenn. Code Ann.§ 49-5-512(a)(7)).

- 13 -

The 1992 legislation also substantially changed the standard of judicial review of

the school board‟s decision. It amended Tennessee Code Annotated section 49-5-513(g)

to delete the above-quoted provision and substitute the following:

The review of the court shall be limited to the written record of the hearing

before the board 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.

The Teachers‟ Tenure Act, ch. 535, 1992 Tenn. Pub. Acts (amending Tenn. Code Ann. §

49-5-513(g); see also Wallace v. Mitchell, 303 S.W.3d 685, 686-87 (Tenn. Ct. App.

2000) (noting the statutory change). Thus, the 1992 legislation changed the judicial

review from a de novo hearing to a review of the written record of the school board

hearing. The chancery court was given limited authority to admit additional evidence

only if needed to establish that the school board acted arbitrarily or capriciously or that

the school board violated the teacher‟s statutory or constitutional rights.

The language in the 1992 amendments to the Tenure Act clearly indicates that the

legislature intended to establish the common law writ of certiorari as the standard of

judicial review of the school board‟s decision to dismiss a tenured teacher. This Court

has described the standard of review under the common law writ of certiorari:

Generally, under common law certiorari, the scope of review is limited to

the record to determine as a question of law whether there is any material

evidence to support the agency‟s findings. However, new evidence is

admissible on the issue of whether the administrative body exceeded its

jurisdiction or acted illegally, capriciously or arbitrarily.

Davison v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983) (citations omitted).

Thus, in proceedings under a common law writ of certiorari, the intrinsic

correctness of the decision of the lower tribunal—here the Board—is not subject to

judicial review. The reviewing court may set aside the decision of the administrative

body only if the reviewing court determines that the decision maker exceeded its

jurisdiction; followed an unlawful procedure; acted illegally, arbitrarily, or capriciously;

or acted without material evidence to support its decision. See generally Davison, 659

S.W.2d at 363; Wallace, 303 S.W.3d at 687. In reviewing the evidence before the school

board, the standard of review for the trial court and for the appellate courts is the same.

Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980).

- 14 -

This appeal also involves issues of statutory interpretation. These are questions of

law, so we review the decisions of the lower courts de novo with no presumption of

correctness. Thompson v. Memphis City Sch. Bd. of Educ., 395 S.W.3d 616, 622 (Tenn.

2012).

ANALYSIS

In Thompson v. Memphis City Sch. Bd. of Ed., this Court set out the purposes of

the Tenure Act and outlined the protections afforded to tenured teachers under the Act:

[T]he Legislature enacted the Tenure Act in 1951. Act of Feb. 27, 1951,

ch. 76, 1951 Tenn. Pub. Acts 292, 292-305. The primary purpose of the

Tenure Act is “to protect school teachers from arbitrary demotions and

dismissals.” Cooper v. Williamson Cnty. Bd. of Educ., 746 S.W.2d 176,

179 (Tenn. 1987) (quoting Snell v. Brothers, 527 S.W.2d 114, 116 (Tenn.

1975)). The Tenure Act also affords “a measure of job security to those

educators who have attained tenure status” and assures “efficient

administration of the local educational systems of this State” by creating

stability. Ryan v. Anderson, 481 S.W.2d 371, 374 (Tenn. 1972).

The statute defines “tenure” as:

the statutory requirements, conditions, relations and

provisions in this part, under which a teacher employed by a

board holds a position as a teacher under the jurisdiction of

the board.

Tenn. Code Ann. § 49-5-501(11)(A). The Act creates two types of tenure

— limited and permanent. Id. § 49-5-503. . . . Once attained, permanent

tenure extends “until such time as the teacher . . . resigns, retires or is

dismissed under [the] provisions of this part.” Id. § 49-5-501(11)(C)

(emphasis added). The Tenure Act declares in no uncertain terms that “[n]o

teacher shall be dismissed or suspended except as provided in this part.”

Id. § 49-5-511(a)(1) (emphasis added).

The five exclusive „causes for which a teacher may be dismissed‟ are

„incompetence, inefficiency, neglect of duty, unprofessional conduct and

insubordination as defined in § 49-5-501.‟ Id. § 49-5-511(a)(2). However,

even if one of these causes is charged, certain procedures must be provided

before a tenured teacher is dismissed. First, written charges must be

presented to the board of education specifically stating an offense that

- 15 -

would amount to cause for the teacher‟s dismissal, and „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.‟ Id. § 49-5-

511(a)(4) (emphasis added). If the board of education determines that the

“charges are of such nature as to warrant the dismissal of the teacher, the

director of schools shall give the teacher” written notice of the board‟s

decision, a copy of the charges against the teacher, 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.” Id. § 49-5-511(a)(5) (emphasis added). The teacher then

“may, within thirty (30) days after receipt of notice, demand a hearing

before the board” by giving “written notice to the director of schools of the

teacher‟s request for a hearing.” Id. § 49-5-512(a)(1) (emphasis added) . . .

.

When a teacher demands a hearing before the board, “[t]he director of

schools shall, within five (5) days after receipt of [the] 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 [the] notice demanding a

hearing.” Tenn. Code Ann. § 49-5-512(a)(2) (emphasis added). “The

teacher may appear at the hearing and plead the teacher‟s cause in person or

by counsel.” Id. § 49-5-512(a)(3). Additionally, the teacher “may present

witnesses, and shall have full opportunity to present the teacher‟s

contentions and to support them with evidence and argument.” Id. at § 49-

5-512(a)(4). The teacher must be provided a “full, complete, and impartial

hearing before the board, 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.” Id. The board chair

conducting the hearing has the power to issue subpoenas, and both the

teacher and the board may have subpoenas issued. Id. § 49-5-512(a)(5).

All testimony must be given under oath, and either party may invoke the

rule of sequestration for witnesses. Id. § 49-5-512(a)(6), (8). If an appeal

is taken, a transcript or recording of the hearing must be prepared, and all

actions of the board must be reduced to writing and included in the record.

Id. § 49-5-512(a)(7). After the hearing, “[t]he board 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.” Id. §

49-5-512(a)(9). A tenured teacher “who is dismissed or suspended by

action of the board” may then obtain judicial review by filing a petition for

writ of certiorari within thirty days of the board‟s decision. Id. § 49-5-

513(a)-(b).

- 16 -

Thompson v. Memphis City Sch. Bd. of Educ., 395 S.W.3d 616, 623-24 (Tenn. 2012)

(footnotes omitted) (emphasis removed).

Under the next provision of the Tenure Act, Tennessee Code Annotated section

49-5-513, a tenured teacher whose employment has been terminated may obtain judicial

review of the termination. As noted above, the statute provides that the chancery court‟s

review of the school board‟s decision “shall be limited to the written record of the

hearing before the board and any evidence or exhibits submitted at the 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.” Tenn.

Code Ann. § 49-5-513(g).

In this appeal, Ms. Emory asserts that the Board failed to abide by the provision in

section 49-5-512 stating that the hearing before the school board shall be set no later than

thirty days after receipt of the notice demanding a hearing. Tenn. Code Ann. § 49-5-

512(a)(2).9 Both parties argue that the relief awarded by the Court of Appeals has no

basis in the Tenure Act. Ms. Emory contends that she is entitled to reinstatement and full

back salary, and the Board argues that Ms. Emory suffered no prejudice from the time

delay and thus is entitled to no relief at all.

We consider first the relief awarded by the Court of Appeals, and then address Ms.

Emory‟s request for relief based on the statutory time provision.

Relief Ordered by Court of Appeals

In this case, the trial court appeared to view the timeliness issue raised by Ms.

Emory as a question of procedural due process and did not rule directly on whether the

thirty-day statutory period is mandatory or directory. The Court of Appeals clarified that

Ms. Emory‟s contention is not based on due process but is instead based on Tennessee

Code Annotated section 49-5-512 (a)(2), which states that, once a tenured teacher sends

the school board a demand for a hearing, “„[t]he director of schools shall, within five (5)

days after receipt of the request, indicate the place of the hearing and set a convenient

date, which date shall not be later than thirty (30) days following receipt of [the] notice

demanding a hearing.‟” Emory, 2015 WL 1934397, at *3, *6 (alterations in original)

(emphasis removed) (quoting Tenn. Code Ann. § 49-5-512(a)(2)).

9

Since the Board‟s hearing on the charges against Ms. Emory, section 49-5-512 of the Tenure

Act has been amended multiple times. See Tenn. Code Ann. § 49-5-512 (2014).

- 17 -

The Court of Appeals considered at length whether the 30-day time period is

directory rather than mandatory. Ultimately it concluded that, despite the use of the word

“shall” in the statute, the timeliness provision for the school board hearing “is directory

rather than mandatory.”10 See Tenn. Code Ann. § 49-5-512(a)(2); Emory, 2015 WL

1934397, at *7.

In general, if statutory provisions are deemed mandatory, “they are not subject to

satisfaction by substantial compliance. Substantial compliance is sufficient only when

the statute‟s requirements are directory, not mandatory.” Myers v. AMISUB (SFH), Inc.,

382 S.W.3d 300, 310 (Tenn. 2012). Nevertheless, despite holding that the Tenure Act‟s

time provision is directory rather than mandatory, the Court of Appeals did not go on to

address whether there was substantial compliance in this case. It pointed out that section

49-5-512(a)(2) contains no specific consequence for failure to hold the school board

hearing within the thirty-day statutory period.11 Emory, 2015 WL 1934397 at *7. The

appellate court declined Ms. Emory‟s invitation to hold that the Board‟s termination of

10

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 Mach., Tool & Die, Inc., 152 S.W.3d 439, 446

(Tenn. 2004); Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965); Sanford Realty Co. v. City of Knoxville,

110 S.W.2d 325, 327 (Tenn. 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, 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)).

11

The question of whether the statute specifies the consequence for noncompliance is a factor in

determining whether a statutory provision is mandatory or directory. See 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.”). Compare Myers, 382 S.W.3d at 310-11 (noting that Tenn. Code Ann. §§ 29-26-

121 and -122 both excuse noncompliance only if plaintiff can demonstrate “extraordinary cause,”

otherwise, “the complaint shall be dismissed.”); cf. Stevens v. Hickman Cmty. Health Care Serv., Inc., 418

S.W.3d 547, 555 (Tenn. 2013) (holding that “shall” is directory rather than mandatory and permitting

substantial compliance, rather than strict compliance, where plaintiff‟s HIPAA authorization form did not

meet criteria in Tenn. Code Ann. § 29-26-121(a)(2)(E)).

- 18 -

Ms. Emory was void, but it expressed concern that its holding “could render the provision

meaningless.” Id. Commenting that “some sanction . . . is necessary,” the Court of

Appeals held as follows:

In our view, the only prejudice Ms. Emory suffered as a result of the

delayed hearing is that she was suspended without pay following her

demand for a hearing for a number of days that exceeded the statutory limit.

Accordingly, the proper remedy is an award of back pay for the additional

days that Ms. Emory was suspended without pay and without a hearing in

violation of the Tenure Act. We reverse the judgment of the trial court and

remand this matter to the trial court to determine the amount of back pay to

which Ms. Emory is entitled for those days.

Id.

In this appeal, both parties argue that the relief awarded by the Court of Appeals

has no basis in the Tenure Act. We agree. As noted by the intermediate appellate court,

the time provision in section 49-5-512 (a)(2) carries no specific penalty for

noncompliance. Courts are not at liberty to rewrite statutes. See Myers, 382 S.W.3d at

310 (citing Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803 (Tenn. 2000)

(“[I]t is not our prerogative to rewrite the statutes.”); Carter v. Duhe, 921 So. 2d 963, 970

(La. 2006) (“[I]t is not the function of the judicial branch . . . to legislate by inserting

penalty provisions into statutes where the legislature has chosen not to do so.”); see also

Marks v. New Orleans Police Dep’t, 943 So. 2d 1028, 1035-36 (La. 2006) (“Marks

contends that the statutory provision provides the officer with . . . the right that the

investigation be completed within sixty days. While this contention is correct, the statute

does not establish a penalty for non-compliance and in the absence of prejudice, we

cannot supply a penalty.”). The remedy crafted by the Court of Appeals is not contained

in the Tenure Act, and we are not at liberty to judicially modify the Act.

Accordingly, we reverse the Court of Appeals‟ award to Ms. Emory of “back pay

for the additional days that Ms. Emory was suspended without pay and without a hearing

in violation of the Tenure Act.” Emory, 2015 WL 1934397, at *7.

Timeliness of Hearing

On appeal, Ms. Emory takes the position that the Board‟s decision was arbitrary

and capricious in that the Board failed to provide Ms. Emory with a hearing within the

30-day period required by Tennessee Code Annotated section 49-5-512(a)(2). Once the

thirty-day period for Ms. Emory‟s Board hearing lapsed, she contends, the Board lost

jurisdiction to terminate Ms. Emory‟s employment. At that point, Ms. Emory argues, in

- 19 -

order to terminate her employment, the Board was required to re-issue its notice of the

charges and start the termination process over. She asks this Court to reverse the trial

court, order reinstatement, and award Ms. Emory back pay dating back to the date of her

suspension.

It is uncontroverted that, in her hearing before the Board, Ms. Emory raised no

objection to the Board‟s failure to conduct the hearing within 30 days after it received

notice of her demand for a hearing, as set forth in section 49-5-512(a)(2). Consequently,

the Board had no opportunity to address the issue. As explained below, for this reason,

we find that the timeliness issue is not properly before the Court.

We begin with the basic legal principle that, with few exceptions, litigants must

raise their objections in the trial court or forego the opportunity to argue them on appeal.

“It has long been the general rule that questions not raised in the trial court will not be

entertained on appeal . . . .” In re Adoption of E.N.R., 42 S.W.3d 26, 32-33 (Tenn. 2001)

(quoting Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983); see also In re Taylor

B.W., 397 S.W.3d 105, 114 (Tenn. 2013) (citing Lawrence, 655 S.W.2d at 929; Tenn. R.

App. P. 36(a)) (“It has long been the rule that this Court will not address questions not

raised in the trial court.”); Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153

(Tenn. 1991) (“issues not raised in the trial court cannot be raised for the first time on

appeal”); Rhea v. Marko Construction Co., 652 S.W.2d 332, 334 (Tenn. 1983); East

Sevier Cnty. Util. Dist. of Sevier Cnty. v. Wachovia Bank & Trust Co., 570 S.W.2d 850,

854 (Tenn. 1978); City of Elizabethton v. Carter County, 321 S.W.2d 822, 827 (Tenn.

1958).

The principle that a litigant must raise his objection at the first available

opportunity applies no less where the tribunal of first instance is an administrative body.

See, e.g., Welch v. Bd. of Prof’l Responsibility. for the Sup. Ct. of Tenn., 193 S.W.3d 457,

464 (Tenn. 2006) (stating that the general principle is that “failure to make a timely,

specific objection” in the trial court prevents a litigant from raising challenge on appeal

“applies equally to proceedings before the hearing committee as it does to proceedings in

a trial court”). In the case of In re Billing & Collection Tariffs of S. Cent. Bell, 779

S.W.2d 375, 380 (Tenn. Ct. App. 1989), the Court of Appeals explained:

In the context of civil litigation, our courts have long recognized that it is

incumbent upon a litigant to call to the trial court‟s attention those errors he

believes have adversely affected his case. Thus, we have consistently held

that even in cases where error might exist, a litigant will not be permitted to

raise questions and issues on appeal that have not first been presented to the

trial court. The trial court must be given the opportunity to correct errors in

- 20 -

the conduct of a trial such as the erroneous admission of evidence before a

litigant will be able to seek reversal on appeal.

These principles have equal validity in administrative proceedings. No

matter how informal the proceeding, a person appearing before an

administrative tribunal must make timely objections to procedural errors

and must raise in a timely manner the issues and questions he deems

material before he will be permitted to raise them in a petition for review.

To require otherwise would undercut the effectiveness of administrative

proceedings and would cause serious waste of effort by the parties and the

administrative tribunal itself.

Id. at 380 (citations omitted).

This rule applies with particular force with respect to alleged procedural

deficiencies in the underlying administrative proceedings. In McClellan v. Board of

Regents of State University, the Court held: “One appearing before an administrative

tribunal must make timely objections to procedural errors and must raise the errors at the

administrative level in order to preserve them for consideration in a petition for judicial

review.” 921 S.W.2d 684, 690 (Tenn. 1996) (citation omitted); see also City of

Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 55 (Tenn. Ct. App. 2004)

(“Parties to administrative proceedings must raise all objections to procedural errors

during the hearing in order to preserve these questions for later appellate review.”).

In McClellan, the plaintiff was charged with various violations of the policies of

the Tennessee State Board of Regents. McClellan, 921 S.W.2d at 686. Pursuant to

Tennessee‟s Uniform Administrative Procedures Act (UAPA), he received an

administrative hearing on the charges. Id. The administrative proceedings resulted in an

adverse decision, and the plaintiff sought judicial review. Id. at 687. In the judicial

proceedings, the plaintiff raised for the first time several alleged procedural irregularities,

including an argument that the composition of the hearing panel was contrary to the

UAPA. Id. The lower courts affirmed the administrative decision, and the plaintiff was

granted permission to appeal to this Court. Id. at 687-88.

On appeal, the McClellan Court declined to grant relief to the plaintiff, in part

because he had raised no objection to the hearing procedures either before or during the

administrative hearing. Id. at 690. The Court drew the analogy to a litigant‟s failure to

raise an issue in the trial court:

Judicial review of an agency decision is confined to the administrative

record, except in limited circumstances. It follows that it is no less

- 21 -

incumbent for a party to an administrative proceeding to raise issues of

procedural irregularity than it is for a party in a judicial proceeding. The

administrative tribunal, like the trial court, must be given the opportunity to

correct procedural errors. Allowing parties to acquiesce in the procedures,

but to challenge those same procedures on appeal is inefficient and

unreasonable. Had Dr. McClellan complained of the procedure initially, or

even in his Petition for Appeal of the Initial Order, the procedures could

have been clarified or even modified. He did not raise the issue until long

after it could have been explored and, if necessary, rectified. He cannot be

heard to complain at this late date.

Id. at 690 (citation and footnote omitted).

The Court applied the same principle in a case in which a non-tenured school

employee failed to raise alleged procedural deficiencies in the administrative hearing on

charges against him; the administrative proceedings resulted in the employee‟s dismissal.

Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216, 221, 237 (Tenn. 2010). In the

ensuing judicial review of the administrative decision, the employee contested his

dismissal on the basis of a variety of alleged procedural irregularities. Id. at 226. The

Court observed that, prior to filing his complaint in the circuit court, the plaintiff “made

no objection to the procedures Defendants utilized in conjunction with dismissing him.”

Id. at 237. The Bailey Court cited several Tennessee cases holding that parties must

object to procedural deficiencies at the administrative level in order to preserve them for

judicial review. Id. (citing McClellan, 921 S.W.2d at 690; Richardson v. Tenn. Bd. of

Dentistry, 913 S.W.2d 446, 455 (Tenn.1995) (“Full consideration of constitutional

procedural issues by the agency will assure that the responsible agency has a full

opportunity to reach a considered decision on a complete record after a fair

proceeding.”); City of Brentwood, 149 S.W.3d at 55 (citing McClellan, 921 S.W.2d at

690) (“Parties to administrative proceedings must raise all objections to procedural errors

during the hearing in order to preserve these questions for later appellate review.”).12

12

Other states likewise require litigants to raise objections first at the administrative level,

particularly where the administrative hearing is similar to a trial. See, e.g., Tr. for Alaska v. State Dep’t of

Natural Re., 865 P.2d 745, 748 (Alaska 1993) (recognizing that a party must raise an issue during the

administrative proceedings to preserve the issue for appeal); Dragan v. Conn. Med. Examining Bd., 613

A.2d 739, 747 (holding that plaintiff waived his right to cross-examine a witness when plaintiff failed to

timely assert the right during the administrative proceeding and failed to seek appropriate relief from the

board); Texaco-Cities Serv. Pipeline Co. v. McGaw, 695 N.E.2d 481, 489 (Ill. 1998) (holding that the

reviewing court will generally not consider for the first time issues or defenses, including constitutional

challenges, that plaintiff failed to raise before the administrative agency); Bd. of Registration in Med. v.

Fiorica, 488 A.2d 1371, 1374-75 (Me. 1985) (holding that doctor waived any defense or objection to the

board‟s alleged failure to comply with the administrative procedures by failing to raise such defense or

objection in his pleadings or before the administrative court). Waiver has been applied in other

- 22 -

The Court in Bailey noted that the plaintiff employee “could have raised the issue

of the timeliness of the Full Hearing either before it was conducted or during it.” Id.

Doing so, the Court observed, would have given the administrative authorities the

opportunity to correct the procedural deficiencies. Id. at 237-38. The Court commented

that the plaintiff employee had “offered no reason for his failure to raise” the procedural

issues at the administrative level. Id. at 237-38. Finding waiver based on the employee‟s

“silence, acquiescence, and active participation in the administrative procedures

provided,” the Court declined to rule in favor of the employee based on the alleged

irregularities in the administrative procedures provided. Id. at 237-38.

In this case, in oral argument, the Court asked counsel for Ms. Emory whether she

had waived the timeliness issue by not raising it at the school board level. Counsel for

Ms. Emory pointed out that, although there was much discussion in the lower courts

about the fact that Ms. Emory did not raise her timeliness objection in the Board hearing,

the Board has not asserted waiver per se; for this reason, Ms. Emory argued that the

Court should not now consider whether Ms. Emory had waived her objection.

“Rules 13(b) and 36(a) of the Tennessee Rules of Appellate Procedure, considered

together, give appellate courts considerable discretion to consider issues that have not

been properly presented in order to achieve fairness and justice.” In re Kaliyah S., 455

S.W.3d 533, 540 (Tenn. 2015) (citing Heatherly v. Merrimack Mut. Fire Ins. Co., 43

S.W.3d 911, 916 (Tenn. Ct. App. 2000)).13 “„Taken together, these rules permit appellate

jurisdictions to tenured teachers. See, e.g., Alexander v. Sch. Dist. No. 17 of Thurston Cnty., 248 N.W.2d

335, 338 (Neb. 1976) (addressing tenured teachers‟ objection to lack of public notice of termination

hearing, the Court stated, “Any person who has notice of a meeting and attends the meeting should be

required to object specifically to the lack of public notice at the meeting, or be held to have waived his

right to object on that ground at a later date.”).

13

Rule 13(b) of the Tennessee Rules of Appellate Procedure provides:

Consideration of Issues Not Presented for Review. Review generally will extend only to

those issues presented for review. The appellate court shall also consider whether the trial

and appellate court have jurisdiction over the subject matter, whether or not presented for

review, and may in its discretion consider other issues in order, among other reasons: (1)

to prevent needless litigation, (2) to prevent injury to the interests of the public, and (3) to

prevent prejudice to the judicial process.

Rule 36(b) of the Tennessee Rules of Appellate Procedure provides:

(b) Effect of Error. A final judgment from which relief is available and otherwise

appropriate shall not be set aside unless, considering the whole record, error involving a

substantial right more probably than not affected the judgment or would result in

prejudice to the judicial process. When necessary to do substantial justice, an appellate

- 23 -

courts to grant complete relief to the parties as long as they have been given fair notice

and an opportunity to be heard on the dispositive issues.‟” Id. (quoting Heatherly, 43

S.W.3d at 916). In this case, to achieve fairness and justice, we exercise our discretion to

address whether Ms. Emory‟s failure to raise the timeliness issue in the proceedings

before the Board precludes her from raising it on judicial review of the Board‟s decision.

As discussed above, section 49-5-512 provides for tenured teachers faced with

dismissal to receive a comprehensive hearing before the school board. The statute

contains detailed provisions; subsection (a) of section 49-5-512 alone contains nine

subparts that set forth a plethora of requirements. These requirements range from

imperatives, such as the right to counsel, to lesser matters, such as payment for mileage

for witnesses.14

court may consider an error that has affected the substantial rights of a party at any time,

even though the error was not raised in the motion for a new trial or assigned as error on

appeal.

14

The requirements for the hearing detailed in subsection (a) of section 49-5-512 (2006) are:

(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, as

follows:

(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, 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 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 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

- 24 -

We consider Ms. Emory‟s hearing before the Board in this case. Thompson, 395

S.W.3d at 623. The hearing took place over three separate days and was well-nigh a trial.

Both parties were represented by counsel, could subpoena witnesses, gave opening and

closing statements, and exchanged witness lists. The Board followed the Rules of

Evidence,15 put witnesses under oath, invoked “the Rule” to bar witnesses from being

present except when testifying, allowed both parties to conduct direct examination, cross-

examination, redirect and re-cross, and then allowed Board members to ask their own

questions of each witness. See generally Tenn. Code Ann. § 49-5-512(a). Over the three

days of proceedings, the Board put on testimony from five witnesses, Ms. Emory put on

testimony from four witnesses and testified on her own behalf, and twenty-five exhibits

were placed into evidence. The testimony and exhibits covered a ten-year span during

which Ms. Emory had taught at several different schools.

As we have observed, during the lengthy Board hearing, nary a word about the

considerable delay in scheduling the hearing was uttered by either Ms. Emory or her

counsel. Despite the fact that Ms. Emory was represented by counsel during the period

preceding the Board hearing, nothing in the record suggests that she objected to the

delayed hearing date in advance of the hearing. Like the teacher in Bailey, Ms. Emory

could have raised the issue of the timeliness of the Board hearing “either before it was

conducted or during it.” Bailey, 303 S.W.3d at 237. Also as in Bailey, Ms. Emory “has

offered no reason” for failing to do so. Id. at 238.

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 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 is appealed, and all

actions of the board 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; and

(9) The board 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.

Tenn. Code Ann. § 49-5-512 (a)(1)-(9) (2006).

15

The Board allowed some hearsay evidence.

- 25 -

Despite Ms. Emory‟s failure to even mention the delay during the Board hearing,

in the ensuing judicial review of the Board‟s decision, she made the Board‟s failure to

hold the hearing within 30 days the centerpiece of her argument. In response to Ms.

Emory‟s argument, counsel for the Board repeatedly told the chancery court that the

delay in the hearing date was consensual, the product of attempts to accommodate the

busy schedules of the attorneys and the citizen school board members, and also to allow

adequate time to prepare for the hearing. Counsel for Ms. Emory claimed that he did not

know the reason for the delay.16

There are no documents in the record showing actual consent for the substantial

delay in scheduling the hearing.17 However, the record indicates that Ms. Emory changed

attorneys several months after the Board received her demand for a hearing; the

correspondence between the Memphis City School System and Ms. Emory‟s counsel,

who had been supplied to Ms. Emory by the Tennessee Education Association, contains

no reference to the ongoing delay. These circumstances, considered along with the

substantial nature of the hearing and Ms. Emory‟s failure to even refer in the hearing to

the delay in scheduling, much less object to it, suggest at least acquiescence by Ms.

Emory in the failure to hold the hearing during the statutory period.

From our review of the record, Ms. Emory received a full and fair hearing. She

was given ample opportunity to put on proof, present testimony from witnesses on her

behalf, testify on her own behalf, cross-examine the Board‟s witnesses, answer questions

from Board members, and argue her view of the significant events that were the basis for

the charges. On appeal, though Ms. Emory‟s counsel indicates that he would have

pursued a different strategy had he been representing her at the time, he does not question

the fairness of the Board‟s hearing.

Ms. Emory argues that she was prejudiced by the delay in scheduling the hearing.

Ms. Emory‟s affidavit, supplied to the chancery court, states that she was without income

and health insurance after her discharge, and that she suffered stress from the uncertainty

during the pendency of the proceedings. Respectfully, this does not amount to prejudice

from the delay in scheduling the hearing. The trial court found that “[t]he facts presented

and the outcome of [Ms. Emory‟s] tenure hearing would not have been different if the

16

Ms. Emory‟s counsel for the chancery court proceedings and for this appeal did not represent

her before the Board.

17

The fact that there are no documents or testimony in the record of the Board hearing showing

the reason for the delay arises, of course, from the fact that Ms. Emory made no objection in the Board

proceedings to the delay in holding her hearing.

- 26 -

hearing had been held earlier.” This finding is fully supported in the record. Ms. Emory

has not pointed to any way in which her ability to respond to the charges against her was

adversely impacted by the delay. United States v. L. A. Tucker Truck Lines, Inc., 344

U.S. 33, 35-36 (1952) (surmising that “[t]he apparent reason for complacency” by the

appellant, in failing to object to a procedural error during the underlying administrative

proceedings, “was that [the appellant] was not actually prejudiced by” the procedural

error). To the contrary, considering Ms. Emory‟s change in attorneys during the

pendency of the hearing, the need for her new attorney to prepare for the hearing, and the

very substantial nature of the proceedings, it could be argued that holding the hearing

beyond the thirty-day period may have actually enhanced Ms. Emory‟s ability to meet the

charges against her. See Potts v. Gibson, 469 S.W.2d 130, 133-34 (Tenn. 1971) (“Except

in the clearest case of a material disregard by the Board of the procedural requirements of

the statute or a showing of prejudice, where a trial de novo has been had in which the

teacher appeared and fully participated[,] the appellate court should not interfere with the

action of the Board on procedural grounds.”).

We are struck as well by what Ms. Emory acknowledges would likely occur if we

were to grant the relief she seeks. Ms. Emory concedes that, if this Court were to reverse

the termination of her employment, the Board could immediately re-issue its notice of the

charges against her—the same charges that were the subject of the September 20, 2005

letter to Ms. Emory—and start the termination process over. Indeed, the Board would

have little choice but to do so, since the prior Board hearing clearly established that Ms.

Emory should not be placed back in the classroom teaching children. Ms. Emory

nevertheless seeks reinstatement, at least until the charges are re-issued, and an award of

back pay dating back to the date of Ms. Emory‟s suspension.

Under these circumstances, we would achieve little more than irony by voiding

Ms. Emory‟s dismissal and remanding this case for the Board to start the termination

process anew, over ten years after her employment was terminated and twenty years after

the events underlying the termination, solely to vindicate a delay in the hearing that Ms.

Emory did not believe warranted even a mention in the Board proceedings. See L. A.

Tucker Truck Lines, Inc., 344 U.S. at 35-36 (“The issue is clearly an afterthought,

brought forward at the last possible moment to undo the administrative proceedings

without consideration of the merits and can prevail only from technical compulsion

irrespective of considerations of practical justice.”).

Had Ms. Emory objected during the Board proceedings to the delay in holding the

hearing, the Board could have voided the charges at that time, re-issued them, and

promptly scheduled a new hearing, the same relief Ms. Emory seeks today. See Bailey,

303 S.W.3d at 237 (quoting McClellan, 921 S.W.2d at 690) (“The administrative

tribunal, like the trial court, must be given the opportunity to correct procedural errors.”);

- 27 -

Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143, 155 (1946) (“A reviewing court

usurps the agency‟s function when it sets aside the administrative determination upon a

ground not theretofore presented and deprives the Commission of an opportunity to

consider the matter, make its ruling, and state the reasons for its action.”).

The efficient and fair administration of justice demands that a litigant not be

permitted to withhold her objections, await the outcome, and then complain that she was

denied her rights if she does not approve of the resulting decision. See Bailey, 303

S.W.3d at 237 (quoting McClellan, 921 S.W.2d at 690) (“„Allowing parties to acquiesce

in the procedures, but to challenge those same procedures on appeal is inefficient and

unreasonable.‟”); Dragan v. Connecticut Med. Examining Bd., 613 A.2d 739, 747 (1992)

(citations and internal quotation marks omitted) (“A party to an administrative

proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise

claims that were not asserted before the board. We have made it clear that we will not

permit parties to anticipate a favorable decision, reserving a right to impeach it or set it

aside if it happens to be against them, for a cause which was well known to them before

or during the trial.”). Allowing a party to hide an ace up her sleeve for appeal would

undermine fair play and finality of judgment. In contrast, our reaffirmed insistence upon

contemporaneous objections to agency errors should provide incentive for litigants to see

that all procedural deficiencies are addressed before the administrative body completes its

consideration of a dispute. See City of Brentwood, 149 S.W.3d at 55 (citing McClellan,

921 S.W.2d at 690) (“Parties to administrative proceedings must raise all objections to

procedural errors during the hearing in order to preserve these questions for later

appellate review.”).

For these reasons, we hold that the timeliness issue raised by Ms. Emory in the

judicial review of the Board‟s decision is not properly before this Court, and we decline

to overturn the Board‟s decision to terminate Ms. Emory‟s employment because of the

delay in holding the school board hearing.18 Therefore, we affirm the trial court‟s

decision to uphold the Board‟s termination of Ms. Emory‟s employment.

CONCLUSION

In sum, we reverse the Court of Appeals‟ award of partial back pay to Ms. Emory

because the relief ordered by the Court of Appeals is without basis in the Tenure Act. As

to Ms. Emory‟s argument that the termination of her employment must be set aside

because the Board failed to hold her hearing within thirty days after it received her notice

18

This holding pretermits the issue of whether the thirty-day period for the school board hearing

set forth in Tennessee Code Annotated section 49-5-512(a)(2) is mandatory or directory.

- 28 -

of a demand for a hearing, as set forth in Tennessee Code Annotated section 49-5-

512(a)(2), we hold that the issue is not properly before this Court because Ms. Emory

failed to raise her timeliness objection either before or during the Board hearing.

Accordingly, we affirm the trial court‟s decision to uphold the termination of Ms.

Emory‟s employment. Costs on appeal are to be taxed to Plaintiff/Appellee, Rogelynn

Emory.

_________________________________

HOLLY KIRBY, JUSTICE

- 29 -