Nedra Finney v. Franklin Special School District Board Of Education

09/28/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 6, 2018 Session

NEDRA FINNEY V. FRANKLIN SPECIAL SCHOOL DISTRICT BOARD

OF EDUCATION, ET AL.

Appeal from the Chancery Court for Williamson County

No. 45644 Joseph A. Woodruff, Chancellor

No. M2017-02080-COA-R3-CV

This is an appeal of the termination of a tenured teacher’s employment pursuant to the

Tenure Act, Tenn. Code Ann. §§ 49-5-501 to – 515. The Director of Schools of the

Franklin Special School District filed Charges for Dismissal of the tenured teacher on the

grounds of unprofessional conduct, incompetence, inefficiency, insubordination, and

neglect of duty. The charging document alleged multiple incidents of unprofessional

conduct based on a lack of adherence to required procedures, particularly in the area of

special education laws and procedures. It further alleged that the teacher was placed on a

Corrective Action Plan for the 2014-2015 school year, during which the teacher was

found to be in violation of the plan on multiple occasions. Moreover, at the end of the

2014-2015 school year, the teacher was suspended for three days without pay as a result

of an incident that occurred on May 11, 2015, during which the teacher improperly

restrained a special education student, which violated the student’s individualized

education plan. The charging document also identified, inter alia, an incident that

occurred on October 28, 2015, when the teacher got into a physical altercation with a

special education student who refused to return the teacher’s day planner and which

resulted in the two falling to the floor. Following an evidentiary hearing, the Impartial

Hearing Officer recommended dismissal on the grounds of unprofessional conduct. When

the school board voted to sustain the Hearing Officer’s decision, the teacher sought

review in chancery court. The chancery court affirmed the teacher’s dismissal based on

the grounds of unprofessional conduct and incompetence. This appeal followed. Because

the Hearing Officer did not find that the ground of incompetence had been proven, and

that decision was not appealed, the ground of incompetence was not before the court.

Therefore, it may not be considered as a ground for dismissal. However, we affirm the

decision to dismiss the tenured teacher’s employment with the school district on the

ground of unprofessional conduct.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and RICHARD H. DINKINS, JJ., joined.

J. Michael Clemmons, Nashville, Tennessee, for the appellant, Nedra Finney.

Charles W. Cagle and Brad W. Craig, Nashville, Tennessee, for the appellees, Franklin

Special School District Board of Education, Tim Stillings, Allena Bell, Alicia Spencer

Barker, Robert Blair, Robin Newman, Kevin Townsel, and Dr. David Snowden.

OPINION

The appellant, Nedra Finney, who had over 21 years of teaching experience, began

her employment as a special education teacher with the Franklin Special School District

(the “District”) at the beginning of the 2005-06 school year. She was initially assigned to

Moore Elementary School (“Moore Elementary”), where she taught for ten years until

being assigned to teach at Freedom Intermediate School (“Freedom Intermediate”). The

events that form the basis of Ms. Finney’s dismissal took place at both schools during

two academic years, the 2014-15 school year at Moore Elementary and the 2015-16

school year at Freedom Intermediate.

On November 16, 2015, Dr. David L. Snowden, the Director of Schools for the

District, presented Charges for Dismissal to the Franklin Special School District Board of

Education (the “Board”) in which he recommended termination of Ms. Finney as a

tenured teacher. On the same day, the Board voted unanimously that if any of the charges

presented were true, then Ms. Finney’s dismissal was warranted. The Board also directed

Dr. Snowden to notify Ms. Finney of its action, which he did by letter dated November

17, 2015.1

The Allegations of Fact set forth in the Charges for Dismissal read in pertinent

part:

Ms. Finney is a special education teacher at Freedom Intermediate School.

Over the course of the 2013-2014 school year, Ms. Finney demonstrated

multiple incidents of unprofessional conduct including addressing

colleagues and staff in a disrespectful tone, exhibiting a negative attitude,

and displaying a lack of support for administrative decisions at the school,

district and state levels. Another area of concern was Ms. Finney’s neglect

1

As stated in Elmi v. Cheatham Cty. Bd. of Educ., 546 S.W.3d 630 (Tenn. Ct. App. 2017), it is

relevant to note that the Board is not the charging party. Id. at 633 n. 2. The Director of Schools is the

charging party under Tenn. Code Ann. § 49–5–511, and the Board is the deciding body under Tenn. Code

Ann. § 49–5–512(b). Id. Nevertheless, it is the decision of the Board to terminate a tenured teacher’s

employment, which was based on the Impartial Hearing Officer’s ruling, that is at issue.

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of duties as demonstrated by her lack of adherence to required procedures,

particularly in the area of special education laws and procedures.

As a result of these performance issues, Ms. Finney was placed on a

Corrective Action Plan for the 2014-2015 school year, which was aimed at

helping her improve these deficiencies. While Ms. Finney initially showed

some signs of improvement, her performance ultimately worsened as the

school year progressed. The escalation of Ms. Finney’s inappropriate

conduct prompted numerous staff members to express concerns to the

school administrators about Ms. Finney’s unacceptable comments,

behavior, and voice level towards her colleagues and her students.

During the 2014-2015 school year, Ms. Finney was found to be in violation

of her Corrective Action Plan on multiple occasions. For instance, on

March 24, 2015, Ms. Finney was issued a written reprimand as a result of

an incident where she interrupted another teacher who was in [the] middle

of teaching a class to communicate her displeasure with an administration

decision regarding the placement of a student. This incident occurred in the

presence of other students and was a direct violation of Ms. Finney’s

Corrective Action Plan, which required her to “communicate with all

school personnel — especially other professionals — in a manner that

demonstrates mutual respect and adheres to acceptable professional

boundaries.”

In addition, at the beginning of the 2015-2016 school year, Ms. Finney was

suspended for three days without pay as a result of an incident that occurred

on May 11, 2015, in which Ms. Finney improperly restrained a special

education student. While Ms. Finney initially denied the use of restraint on

the student, video evidence from the security cameras at the school clearly

confirmed Ms. Finney’s use of a restraint technique. Because this particular

student’s individualized education plan (“IEP”) did not provide for the use

of restraints, Ms. Finney’s actions were in violation of Board policy and

procedures, as well as state and federal law.

Then, on October 28, 2015, it was reported that Ms. Finney got into a

physical altercation with a student as a result of the student’s refusal to give

her a day planner that she had requested. Specifically, multiple teachers

witnessed Ms. Finney “wrestling” with the student over the planner until

both Ms. Finney and the student were on the floor. Ms. Finney and the

student continued to struggle, until another teacher intervened and told the

student to “stop it,” at which point the student stopped and sat down in one

of the chairs.

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Despite the District’s efforts to improve Ms. Finney’s deficiencies, her

overall performance has not improved. Instead, there have been multiple

complaints over the past several years from Ms. Finney’s co-workers and

parents regarding her job performance and unprofessional attitude,

including, but not limited to, claims that she:

 Utilizes inappropriate behavior strategies with students

including, but not limited to, the use of inappropriate

restraint procedures;

 Demonstrates insubordination by openly disagreeing with

school and district level policies and decisions;

 Refuses to allow free access to her classroom for

professionals entering to observe and/or serve special

education students;

 Fails to adhere to Board Policies and procedures,

particularly in the area of special education laws and

procedures;

 Demonstrated unprofessional conduct by refusing to

acknowledge or interact with a student and his or her

parent(s) at school reading night;

 Has used an inappropriate tone of voice with students by

yelling on multiple occasions;

 Makes disparaging remarks to colleagues about other

district professionals, parents, and student advocates;

 Refuses to use proven and appropriate strategies for

students on the autism spectrum disorder;

 Became angry when other members of an IEP team

suggested changes to her draft IEP; and

 Interrupted a therapy session to criticize the therapist’s

technique in front of students and staff.

A review of Ms. Finney’s unsatisfactory job performance, combined with

her repeated violations of school board policies and procedures, confirm

that Ms. Finney’s deficiencies are ongoing issues that have persisted

despite the District’s repeated efforts to assist her.

The charging document specified five statutory grounds under Tenn. Code Ann. §

49-5-501 for dismissing Ms. Finney: 1) unprofessional conduct, 2) incompetence, 3)

inefficiency, 4) insubordination, and 5) neglect of duty.

After Ms. Finney requested a hearing pursuant to Tenn. Code Ann. § 49-5-512(a),

Dale Conder, Jr., an attorney in Jackson, Tennessee, was designated to serve as the

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Impartial Hearing Officer.2 The hearing took place over four days in April and May of

2016. The District presented numerous witnesses, which included teachers,

administrators, and parents, who testified to Ms. Finney’s disrespectful interactions with

co-workers and her unprofessional conduct in the classroom.

The District also presented security camera footage of three incidents involving

Ms. Finney’s interaction with students. One of the videos pertained to Ms. Finney’s

alleged improper restraint of a special education student on May 11, 2015. Another video

concerned an incident that occurred on October 26, 2015, which showed Ms. Finney in a

physical altercation with a student in the hallway of Freedom Intermediate. The third

video recorded a physical altercation, a tug-of-war over a day planner, with a special

education student on October 28, 2015. For her case-in-chief, Ms. Finney testified, and

she presented three witnesses, two fellow teachers and a paraprofessional, who testified

on her behalf.

At the conclusion of the hearing, the Hearing Officer directed the court reporter to

provide a transcript of the hearing and instructed both parties to submit proposed findings

of fact and conclusions of law. After receiving and reviewing the parties’ post hearing

submissions, the Hearing Officer filed his Findings of Fact and Conclusions of Law in

which he ruled that Ms. Finney’s dismissal was warranted on one of the five grounds

alleged, that of unprofessional conduct.3 In the conclusion, the Hearing Officer stated:

Based on the testimony and the exhibits, I conclude that the Franklin

Special School District met its burden of establishing its grounds for

terminating Finney. The record establishes that Finney used a restraint hold

on L.J. on May 11, 2015; she acted unprofessionally in Walker’s classroom

in March 2015; she acted unprofessionally in October 2015 in the two

incidents involving her physical struggle with the student at Freedom

Intermediate School; and she acted unprofessionally in her dealings with

Herren during her meeting with Herren and Larkin [on October 30]

following the October incidents.

Finally, the fact that these incidents occurred while Finney was under a

corrective action plan designed to ameliorate this kind of behavior

2

“For the purposes of this part, ‘impartial’ means that the selected hearing officer shall have no

history of employment with the board or director of schools, no relationship with any board member and

no relationship with the teacher or representatives of the teacher.” Tenn. Code Ann. § 49-5-512(a)(3).

3

Although the Hearing Officer noted in his Findings of Fact and Conclusions of Law that five

grounds for dismissal were alleged in the charging document, the Hearing Officer did not find that the

District had proven the grounds of incompetence, inefficiency, insubordination, or neglect of duty.

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highlights Finney’s lack of professionalism. Therefore, the District has met

its burden of establishing that it has grounds for terminating Finney.

Ms. Finney timely appealed the Hearing Officer’s decision to the Board.4

Following a hearing before the Board on September 19, 2016, during which counsel for

the parties appeared and argued, the Board sustained the decision of the Hearing Officer

and terminated Ms. Finney’s employment as a tenured teacher in the District. Thereafter,

Ms. Finney sought review in the Williamson County Chancery Court by filing a petition

for a writ of certiorari in accordance with Tenn. Code Ann. § 49-5-513.

In the de novo hearing before the chancery court, Ms. Finney argued that the

evidence did not support the finding that her conduct was unprofessional, as defined by

Tenn. Code Ann. § 49-5-501(3), with respect to any of the five incidents that formed the

basis of her dismissal. She also contended that she could not be dismissed for her actions

on October 26 and October 30 (the meeting with Herren and Larkin) because those

incidents were not specifically identified in the charging document. Ms. Finney also

contended that she could not be dismissed for her alleged actions on March 24 and May

11 because she had already been disciplined for those acts, receiving a written reprimand

for the March 24 incident and a three-day suspension for the May 11 incident.

In addition to hearing arguments from counsel, the chancery court conducted a

review of the record before the Hearing Officer. Thereafter, the court entered an order

affirming the dismissal of Ms. Finney on two grounds, “unprofessional conduct” and

“incompetence.” The court found, inter alia, that although the charging instrument did

not specify the October 26 and October 30 incidents, Ms. Finney received adequate

notice of those charges “through proper discovery and pre-trial procedure.” Moreover,

the trial court found that Ms. Finney waived the issue by failing to object to the

admission of the evidence.

The court ruled that the “cumulative nature” of Ms. Finney’s disrespectful

interactions with colleagues constituted unprofessional conduct under the Tenure Act.

Significantly, the court determined that “[s]tanding alone, each of the incidents captured

on video is a sufficient cause for dismissal.” Of the three, however, the court found the

4

“If the affected teacher desires to appeal from a decision rendered in whole or in part in favor of

the school system, the teacher shall first exhaust the administrative remedy of appealing the decision to

the board of education within ten (10) working days of the hearing officer’s delivery of the written

findings of fact, conclusions and decision to the affected employee.” Tenn. Code Ann. § 49–5–512(c)(1).

“Upon written notice of appeal, the director of schools shall prepare a copy of the proceedings, transcript,

documentary and other evidence presented and transmit the copy to the board. . . .” Tenn. Code Ann. §

49–5–512(c)(2). “The board shall hear the appeal on the record and no new evidence shall be introduced.”

Tenn. Code Ann. § 49–5–512(c)(3). “The board may sustain the decision, send the record back if

additional evidence is necessary, revise the penalty or reverse the decision.” Id.

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“day planner” altercation, which occurred on October 28, 2015, “particularly

troublesome”:

Not only is the interaction between Ms. Finney and her student a violation

of both Ms. Finney’s [Corrective Action Plan] requirements and the

student’s Behavioral Support Plan, it is, in itself, a blatant display of

unprofessionalism. While Ms. Finney’s [Corrective Action Plan] mandated

that she adhere to the required district, state, and federal procedures,

physically engaging with this particular student was a direct violation of his

Behavioral Support Plan which specifically prohibited educators from

physical engagement. This encounter is especially egregious in light of the

student’s disability and the teacher’s vast amount of experience. Beyond

the sheer spectacle of this incident, most importantly, the student could

have been injured during this interaction. The District could also have been

subject to legal jeopardy if the student were injured in this struggle.

Ms. Finney displayed a lack of professionalism through the manner in

which she managed all three incidents recorded on the District’s security

cameras, especially in light of her experience and specialized training.

While Ms. Finney’s conduct, which occurred between 2014-2015, could

arguably amount to several other causes for dismissal, it is most

synonymous with behavior characterized as “unprofessional” and

“incompetent.”

This appeal followed.

ISSUES

The issues before us, which we have rephrased, are as follows:

I. Did the trial court incorrectly conclude that Ms. Finney was guilty of

incompetence?

II. Did the trial court err by failing to follow the de novo standard of review

required under the Tenure Act?

III. Did the trial court err in considering alleged offenses that were not specifically

stated in writing in the Charges for Dismissal as required under the Tenure

Act?

IV. Did the trial court incorrectly conclude that Ms. Finney was guilty of

unprofessional conduct?

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STANDARD OF REVIEW

Under the Tenure Act, when a school board terminates a tenured teacher’s

employment, the teacher has the right to a chancery court review of the school board’s

decision. Tenn. Code Ann. § 49-5-512(c)(4).

The standard by which courts review a school district’s decision to terminate a

tenured teacher has been modified significantly since 1992. As our Supreme Court

explained in 2017 in Emory v. Memphis City Schools Board of Education:

In 1992, our legislature enacted comprehensive legislation related to

education that included amendments to the Tenure Act. Among other

things, 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). The amendments 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)).

In addition to mandating a hearing and the creation of a record, the 1992

legislation also set forth a standard of judicial review of the decision that

resulted from the school board hearing. Subsection (g) of Tennessee Code

Annotated section 49-5-513 was amended to read:

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 Wallace, 303 S.W.3d at 686-87 (Tenn. Ct.

App. 2000) (noting the statutory change). Thus, the 1992 amendments

changed the judicial review from a de novo hearing to a review of the

written record of the school board hearing; it gave the chancery court

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. See Tenn.

Code Ann. § 49-5-513(g). The 1992 amendments led some appellate courts

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to apply a common-law writ of certiorari standard of review, i.e., limited to

the record to determine whether there was material evidence to support the

school board’s decision, with new evidence admissible only on the issues of

whether the school board exceeded its jurisdiction or acted illegally,

arbitrarily or capriciously. See, e.g., Wallace, 303 S.W.3d at 687 (quoting

Davison v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983)); see also Winkler, 63

S.W.3d at 381.

In 2007, however, the legislature amended the Tenure Act to further

address the standard of review. The 2007 amendment added language to

section 49-5-512(c)(7), now codified at (c)(4). It stated that a party

dissatisfied with the school board’s decision “shall have the right to appeal

to the chancery court.” Tenn. Code Ann. § 49-5-512(c)(4) (2016). If such

an appeal were filed, the school board was directed to transmit the record of

its proceedings to the chancery court. The amendment then provided: “The

review of the court shall be de novo on the record of the hearing held by the

hearing officer and reviewed by the board.” Id.

These statutes do not refer to either the common law or the statutory writ of

certiorari. Reading section 49-5-512(c)(4) and section 49-5-513(g) together,

however, it is apparent that the standard of review under the Tenure

Act is not the standard applicable to a common law writ of certiorari.

Instead, the standard of review specified in the statute is intended to

permit the chancery court to address the intrinsic correctness of the

school board’s decision. The appellate court in Ripley aptly described

this standard of review: “The chancery court’s review, as contemplated

by [section 49-5-513], 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.” Ripley,

293 S.W.3d at 156 (citing Lee, 237 S.W.3d at 329). The teacher does not

have the ability to present new evidence on the merits of the charges; the

chancery court’s de novo review is limited to the record of the school board

proceedings. New evidence is only admissible “to establish arbitrary or

capricious action or violation of statutory or constitutional rights by the

board.” Tenn. Code Ann. § 49-5-513(g).

514 S.W.3d 129, 140-42 (Tenn. 2017) (emphasis added). Thus, the chancery court is to

review appeals under the Tenure Act pursuant to the standard of review as explained

above in Emory.

If an appeal is taken from the decision of the chancery court to this court, we

review the chancellor’s decision pursuant to Rule 13(d) of the Tennessee Rules of

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Appellate Procedure “to determine whether the evidence preponderates in favor of the

chancery court’s findings of fact.” Id. at 142. Issues of law are reviewed de novo, with no

presumption of correctness given to the chancery court’s conclusions. Id.

ANALYSIS

I. THE GROUND OF INCOMPETENCE

Ms. Finney contends the court erred in finding that the statutory ground of

incompetence had been proven.5 We have determined that the issue of incompetence was

not properly before the trial court; therefore, the court erred by holding that the ground of

incompetence had been proven.

Under the Tenure Act, the plaintiff’s petition for writ of certiorari serves as the

plaintiff’s pleading. See Cooper v. Williamson Cty. Bd. of Educ., 746 S.W.2d 176, 182

(Tenn. 1987). It “raises the issues for review, stating the substance of the board’s actions

and the errors made by the board in its decision.” Id. Our Supreme Court has explained

that “the primary purpose of pleadings is to provide notice of the issues presented to the

opposing party and court.” Webb v. Nashville Area Habitat for Humanity, Inc., 346

S.W.3d 422, 426 (Tenn. 2011). Therefore, “a judgment beyond the scope of the pleadings

is beyond the notice given the parties and…should not be enforced.” Clark v. Sputniks,

LLC, 368 S.W.3d 431, 440 (Tenn. 2012) (quoting Brown v. Brown, 281 S.W.2d 492, 497

(Tenn. 1955)).

The Notice for Dismissal asserted five statutory grounds for dismissal:

unprofessional conduct, incompetence, inefficiency, insubordination, and neglect of duty.

After a hearing on the charges, the Hearing Officer found that the District proved the

ground of unprofessional conduct, and on that basis, the District met its burden of

establishing a ground for terminating Ms. Finney. Significantly, the Hearing Officer did

not find that the District proved any other ground, only unprofessional conduct.

After the Board sustained the Hearing Officer’s decision to terminate Ms. Finney

as a tenured teacher on the ground of unprofessional conduct, Ms. Finney sought review

in the Williamson County Chancery Court by filing a petition for a writ of certiorari in

accordance with Tenn. Code Ann. § 49-5-513. In her petition, Ms. Finney contended that

the evidence was insufficient to support the finding that she engaged in unprofessional

5

Tennessee Code Annotated section 49-5-501(5) defines “incompetence” to mean: “being

incapable, lacking adequate power, capacity or ability to carry out the duties and responsibilities of the

position. This may apply to physical, mental, educational, emotional or other personal conditions. It may

include lack of training or experience, evident unfitness for service, a physical, mental or emotional

condition making the teacher unfit to instruct or associate with children or the inability to command

respect from subordinates or to secure cooperation of those with whom the teacher must work.”

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conduct or that her employment should be terminated. Although the District had the right

to also challenge the decision, it did not. See Tenn. Code Ann. § 49-5-512(c)(4) (“Any

party dissatisfied with the decision rendered by the board shall have the right to appeal to

the chancery court….”). Thus, the issues were limited to whether Ms. Finney engaged in

unprofessional conduct for which she could be dismissed as a tenured teacher.

Nevertheless, the trial court determined that Ms. Finney’s conduct was “most

synonymous with behavior categorized as ‘unprofessional’ and ‘incompetent.’”

A de novo review under the Tenure Act by the chancery court is limited to the

issues before the court. Cooper, 746 S.W.2d at 182. As explained in Cooper, “In the

Chancery Court, the plaintiff’s petition raises the issues for review, stating the

substance of the board’s actions and the errors made by the board in its decision,” and

“the Chancellor then entertains arguments and considers the evidence presented in

Chancery Court to decide the issues raised on their merits to determine whether the

board’s action was justified.” Id. (emphasis added). Neither Ms. Finney nor the Board

raised the issue of incompetence; accordingly, the ground of incompetence was beyond

the scope of the pleadings. See Clark, 368 S.W.3d at 440; see also Brown, 281 S.W.2d at

497. Therefore, we reverse the trial court’s determination that the ground of

incompetence was proven.

II. DE NOVO REVIEW UNDER THE TENURE ACT

Tennessee Code Annotated section 49-5-512(c)(4) states that any party dissatisfied

with the decision rendered by the board shall have the right to appeal to the chancery

court where “[t]he review of the court shall be de novo on the record of the hearing held

by the hearing officer and reviewed by the board.” As we discussed in more detail earlier

in this opinion, “[t]he chancery court’s review . . . 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.” Emory, 514 S.W.3d at 141-42 (quoting Ripley

v. Anderson Cty. Bd. of Educ., 293 S.W.3d 154, 156 (Tenn. Ct. App. 2008)).

This form of judicial review requires the chancery court to make a fresh and

independent determination of both the facts and the law. Cooper, 746 S.W.2d at 181. It is

not sufficient for the chancery court to determine whether the evidence preponderates in

favor of the Hearing Officer’s decision. Id. As Cooper explained:

[T]he scope of review in the Chancery Court is not confined to a

determination of whether the evidence preponderates in favor of the

determination of the administrative board and no presumption of

correctness attaches to the decision of the school board. . . . We think that a

hearing de novo requires the Chancellor to redetermine both the facts and

the law from all the evidence before the court. While not fully analogous,

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this type of review is more akin to an appeal from General Sessions Court

pursuant to [Tenn. Code Ann.] § 19-1-118….

Id.

Ms. Finney argues that the Chancellor applied an incorrect standard of review.

This contention is based on statements made by the Chancellor in the final order. For

example, the Chancellor stated: “It is not the job of the trial court to reweigh the

evidence; rather, the Court must determine whether the Hearing Officer had enough

evidence to support his decision,” and “the fact that [the hearing officer] found the

District’s witnesses to be more credible is a determination that deserves deference.” As

we explain below, although the foregoing and similar statements erroneously identify the

applicable standard of review, we find the errors harmless. The final order reveals that the

Chancellor made numerous material findings of fact that were based on his independent

determination of the facts and the credibility of key witnesses, which we find sufficient to

affirm the determination that Ms. Finney engaged in unprofessional conduct on numerous

occasions.

A.

Although the order reads “[i]t is not the job of the trial court to reweigh the

evidence,” the same order states the correct standard of review in more detail:

In cases brought under the Tenure Act, “[t]he review of the court shall be

de novo on the record of the hearing held by the hearing officer and

reviewed by the board.” Id. The “chancery court’s review, as contemplated

by [§ 49-5-513], 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.” Emory, 514 S.W.3d at 140 (citing

Ripley, 293 S.W.3d at 156).

Moreover, several findings by the Chancellor reveal that he did not always defer to

the findings by the Hearing Officer or review them with a presumption of correctness. To

the contrary, the Chancellor made numerous independent determinations of substantive

and material facts. For example:

The record clearly establishes that, over the course of two years, Ms.

Finney also exhibited conduct that is generally “unbecoming to a member

of the teaching profession.” Tenn. Code Ann. § 49-5-501(3). With the

implementation of the District [sic], the District began to recognize that Ms.

Finney’s conduct left much to be desired in the realm of professionalism,

and did not characterize the positive and collaborative environment that

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FSSD wished to promote within its school system. Even after extending

Ms. Finney’s [Corrective Action Plan] for the following school year, her

negative interactions with students and other teachers continued. The

statute’s list of conduct which could illustrate “unprofessionalism” is non-

exhaustive. This Court finds that the cumulative nature of Ms. Finney’s

improper interactions with her students, and between Ms. Finney and her

colleagues meets the statutory burden to prove “unprofessional conduct.”

. . .

The unlawful restraint that Ms. Finney exercised on May 11, 2015 was in

direct violation of state and federal law, as well as local policy surrounding

the use of restraint on students who have disabilities….

This Court agrees with the Hearing Officer’s determination that the October

28, 2015 “planner” incident is also particularly troublesome. Not only is the

interaction between Ms. Finney and her student a violation of both Ms.

Finney’s [Corrective Action Plan] requirements and the student’s

Behavioral Support Plan, it is, in itself, a blatant display of

unprofessionalism. While Ms. Finney’s [Corrective Action Plan] mandated

that she adhere to the required district, state, and federal procedures,

physically engaging with this particular student was a direct violation of his

Behavioral Support Plan which specifically prohibited educators from

physical engagement. This encounter is especially egregious in light of the

student’s disability and the teacher’s vast amount of experience. Beyond

the sheer spectacle of this incident, most importantly, the student could

have been injured during this interaction. The District could also have been

subject to legal jeopardy if the student were injured in this struggle.

Ms. Finney displayed a lack of professionalism through the manner in

which she managed all three incidents recorded on the District’s security

cameras, especially in light of her experience and specialized training.

While Ms. Finney’s conduct, which occurred between 2014- 2015, could

arguably amount to several other causes for dismissal, it is most

synonymous with behavior categorized as “unprofessional” and

“incompetent.” The sheer number of education professionals who voiced

their concerns through testimony at trial, as well as the corroboration of Ms.

Finney’s intimidating and unprofessional behavior by parents of Ms.

Finney’s students who felt obliged to voice their concerns, demonstrates

that the witnesses’ perception of Ms. Finney’s conduct was not simply

based on personal opinion. The record is replete with evidence meeting the

statutory requirement for dismissal based on Ms. Finney’s pattern of

unprofessional interactions and incompetence.

- 13 -

We also note that the Chancellor’s statement in the third paragraph above that

“[t]his Court agrees with the Hearing Officer’s determination that the October 28, 2015

‘planner’ incident is also particularly troublesome” is not in conflict with the applicable

standard of review. Agreeing with the Hearing Officer’s findings is very different from

deferring to the factual determinations. It is also very different from reviewing the

Hearing Officer’s factual determinations with a presumption that the evidence

preponderates in favor of the findings. The Chancellor agreeing with the Hearing

Officer’s determination is synonymous with saying the court made an independent

review of the relevant evidence and came to the same conclusion, which is the proper

standard of review. Thus, although the Chancellor erroneously deferred to some of the

findings by the Hearing Officer, the record reveals that the Chancellor conducted an

independent review of substantial and material evidence and came to his own

conclusions, which is proper.

B.

Ms. Finney also contends the trial court improperly gave deference to the Hearing

Officer’s credibility determinations.

Like an appeal from General Sessions Court, the chancery court in a Tenure Act

case must make a fresh determination of the facts and the law. However, unlike an appeal

from General Sessions Court where the circuit court hears and observes live witnesses,

the chancery court’s review under the Tenure Act is “limited to the written record of the

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

Code Ann. § 49-5-513(g). Accordingly, the Chancellor was deprived of the opportunity

to observe live testimony during the appeal of this matter. Nevertheless, the Chancellor

could still make his own credibility determinations based on the record, which included

not only the transcript of the evidence but also video recordings of Ms. Finney’s

interactions with students and exhibits for which the Chancellor had the same ability to

observe as did the Hearing Officer.

Furthermore, credibility determinations are not limited to observing a witness as

he or she testifies in one’s presence. As the Tennessee Pattern Jury Instructions state,

“[i]n deciding which testimony you believe, you should rely on your own common sense

and everyday experience.” T.P.I. – CIVIL 2.20 Credibility of Witness, 8 Tenn. Prac.

Pattern Jury Instr. (2018 ed.). The pattern instructions further state:

There is no fixed set of rules to use in deciding whether you believe a

witness, but it may help you to think about the following questions:

1. Was the witness able to see, hear, or be aware of the things

about which the witness testified?

- 14 -

2. How well was the witness able to recall and describe those

things?

3. How long was the witness watching or listening?

4. Was the witness distracted in any way?

5. Did the witness have a good memory?

. . .

7. Was the witness making an honest effort to tell the truth,

or did the witness evade questions?

8. Did the witness have any interest in the outcome of the

case?

9. Did the witness have any motive, bias or prejudice that

would influence the witness’ testimony?

10. How reasonable was the witness’ testimony when you

consider all of the evidence in the case?

11. Was the witness’ testimony contradicted by what that

witness has said or done at another time, by the testimony of

other witnesses, or by other evidence?

12. Has there been evidence regarding the witness’

intelligence, respectability, or reputation for truthfulness?

Id.

The Tennessee Supreme Court explains the differences between credibility

determinations that are made after observing live testimony versus credibility

determinations that are based on a reading of the cold record and documentation:

Unlike appellate courts, trial courts are able to observe witnesses as they

testify and to assess their demeanor, which best situates trial judges to

evaluate witness credibility. Thus, trial courts are in the most favorable

position to resolve factual disputes hinging on credibility determinations.

Accordingly, appellate courts will not re-evaluate a trial judge’s assessment

of witness credibility absent clear and convincing evidence to the contrary.

In contrast, appellate review of documentary proof, such as depositions or

other forms of testimony presented to the trial court in a “cold” record,

differs considerably. When reviewing documentary proof, all impressions

of weight and credibility are drawn from the contents of the evidence, and

not from the appearance of witnesses and oral testimony at trial. As a result,

appellate courts may make an independent assessment of the credibility of

the documentary proof it reviews, without affording deference to the trial

court’s findings.

- 15 -

Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783-84 (Tenn. 1999) (citations

omitted).

Although Ms. Finney contends the Chancellor deferred to the credibility findings

of the Hearing Officer, the only material “credibility” finding the Hearing Officer made

was that the testimony of special education teacher Betsy Bagsby-Disch was “most

credible.” However, it is significant to note that the Hearing Officer’s credibility finding

hinged on her “expertise,” which was based on her education, certifications, and

experience, not on her demeanor while testifying. Moreover, the Chancellor expressly

stated that he credited the testimony of Ms. Bagby-Disch regarding Ms. Finney’s alleged

use of an illegal restraint based on her expertise in the area of child restraint. As a

consequence, although the Chancellor stated that he would defer to the Hearing Officer’s

credibility findings, the Chancellor was in just as good a position to make an independent

credibility finding for the same reason, her expertise.

The record also reveals that the Chancellor made his own, independent

determinations regarding the persuasiveness of evidence or credibility of other witnesses

based on the record before him. For example, the Chancellor stated:

While Ms. Finney did have relationships with other co-workers that were

not acrimonious, the presentation of testimony by co-workers who were

also Ms. Finney’s friends draws away from their credibility as witnesses.

Not only were those particular teachers who testified in Ms. Finney’s favor

her friends, both also maintained their own classrooms. It would make

sense that neither witness had seen Ms. Finney use an improper restraint

procedure because they were not in her classroom on a day-to-day basis.

Several of the District’s witnesses, on the other hand, worked in Ms.

Finney’s classroom and had a more intimate knowledge of Ms. Finney’s

behaviors with her students.

Although the Chancellor stated that he deferred to the credibility findings of the

Hearing Officer, this error does not entitle Ms. Finney to relief. As our rules of appellate

procedure clearly provide, “[a] final judgment from which relief is available . . . 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.” Tenn. R. App. P. 36(b). Based on our observations above, we are unable to

conclude that the error of deferring to the credibility findings of the Hearing Officer more

probably than not affected the judgment or resulted in prejudice to Ms. Finney.

Accordingly, to the extent the Chancellor erred, it was harmless.

- 16 -

III. DUE PROCESS

Ms. Finney contends the District did not identify the incidents on October 26 (the

altercation in the hallway of Freedom Intermediate) and October 30, 2015 (the meeting

with Herren and Larkin) in the charging document; therefore, these two incidents cannot

form the basis of her dismissal. The District contends it provided adequate notice, and

Ms. Finney waived the issue by not objecting to the admission of the evidence at the

hearing.

The Fourteenth Amendment to the United States Constitution provides, in

pertinent part, that no state shall “deprive any person of life, liberty, or property, without

due process of law.” Tenured teachers possess “a constitutionally protected property

interest in continued employment,” and the state cannot deprive them of this right without

procedural due process. Thompson v. Memphis City Schools Bd. of Educ., 395 S.W.3d

616, 627 (Tenn. 2012). At minimum, due process “entitles a tenured teacher to pre-

termination notice of the charges against her, an explanation of the employer’s evidence,

and an opportunity to present her side of the story to her employer.” Id. Therefore, under

the Tenure Act, the Board cannot dismiss a tenured teacher unless it provides the teacher

with a written copy of the charges, “specifically stating the offenses that are charged.”

Tenn. Code Ann. § 49-5-511(a)(4) (emphasis added).

While the notice of charges need not possess the “technical nicety required in

indictments,” it must be “sufficient in substance and form to fairly apprise the teacher of

the charge against [her] and enable [her] to prepare [her] defense in advance of the

hearing.” Turk v. Franklin Special Sch. Dist., 640 S.W.2d 218, 220 (Tenn. 1982) (quoting

Potts v. Gibson, 469 S.W.2d 130 (Tenn. 1971). Accordingly, the school board’s charging

document must include a list of the charges and the factual allegations supporting them.

See Taylor v. Clarksville Montgomery Cty. Sch. Sys., No. M2009-02116-COA-R3-CV,

2010 WL 3245281, at *5 (Tenn. Ct. App. Aug. 17, 2010).

A. Waiver

The Chancellor determined that Ms. Finney waived the due process issue as to

both incidents by failing to object to the admission of the evidence at the hearing. We

respectfully disagree.

Tennessee Code Annotated section 49-5-512(a)(4) provides that all parties shall

have “the right to have evidence deemed relevant by the submitting party included in the

record of the hearing, even if objected to by the opposing party.” Consequently, had Ms.

Finney objected to the admission of the evidence at the hearing, the Hearing Officer

would have admitted it nonetheless. Significantly, while all “evidence deemed relevant

by the submitting party” is admissible at the hearing, this does not mean that all evidence

may be considered when the Hearing Officer or the court rules on the issues presented.

- 17 -

As previously stated, due process considerations require that incidents or issues to be

tried must be sufficiently identified in the Charges for Dismissal. Thompson, 395 S.W.3d

at 627; Tenn. Code Ann. § 49-5-511(a)(4). Therefore, Ms. Finney did not waive the due

process issue by failing to object to the admission of the evidence at the hearing.

Moreover, Ms. Finney raised the issue in her pre-hearing memorandum and in her post-

hearing memorandum, which the Hearing Officer requested prior to rendering his

decision.

B. October 26, 2015 Hallway Altercation

On October 26, 2015, in an incident captured on video, Ms. Finney was involved

in a physical altercation with a special education student in the hallway of Freedom

Intermediate.

As Ms. Finney correctly notes, the charging document does not reference an

October 26, 2015 incident; however, it specifically identifies the dates of two other

incidents. The relevant provisions as stated in the Allegations of Fact in the Charges for

Dismissal read as follows:

In addition, at the beginning of the 2015-2016 school year, Ms. Finney was

suspended for three days without pay as a result of an incident that

occurred on May 11, 2015, in which Ms. Finney improperly restrained

a special education student. While Ms. Finney initially denied the use

of restraint on the student, video evidence from the security cameras at

the school clearly confirmed Ms. Finney’s use of a restraint technique.

Because this particular student’s individualized education plan (“IEP”) did

not provide for the use of restraints, Ms. Finney’s actions were in violation

of Board policy and procedures, as well as state and federal law.

Then, on October 28, 2015, it was reported that Ms. Finney got into a

physical altercation with a student as a result of the student’s refusal to

give her a day planner that she had requested. Specifically, multiple

teachers witnessed Ms. Finney “wrestling” with the student over the

planner until both Ms. Finney and the student were on the floor. Ms. Finney

and the student continued to struggle, until another teacher intervened and

told the student to “stop it,” at which point the student stopped and sat

down in one of the chairs.

(Emphasis added). Thus, Ms. Finney was given notice “sufficient in substance and form”

to fairly apprise her of the charges as they relate to the May 11 and October 28, 2015

incidents. See Turk, 640 S.W.2d at 220; see also Potts, 469 S.W.2d at 133.

- 18 -

As for the October 26 incident, the Notice of Charges was less specific, alleging

that

there have been multiple complaints over the past several years from Ms.

Finney’s co-workers and parents regarding her job performance and

unprofessional attitude, including, but not limited to, claims that she:

 Utilizes inappropriate behavior strategies with students

including, but not limited to, the use of inappropriate

restraint procedures;

Here, the District could have identified the October 26 incident as it did the May

11 and October 28 incidents by providing the date and a detailed description, though we

emphasize that the Tenure Act does not mandate that level of specificity. As previously

stated, the charging document need not possess the “technical nicety required in

indictments.” Turk, 640 S.W.2d at 220.

For example, in Taylor v. Clarksville Montgomery County School System, we

ruled that a less than specific identification of probative evidence provided sufficient

notice.

[Mr.] Taylor cites to Turk v. Franklin Special School District, 640 S.W.2d

218 (Tenn. 1982) to support his contention that he should have been put on

notice of the content of Detective Webb’s testimony. The facts of Turk are

quite different than the facts here and appellant’s reliance on that case is

misplaced.

Here, the Charges of Dismissal made against Taylor set forth specifically

the charges made against him and the factual allegations that supported

those charges. The factual allegations contained in the Charges of

Dismissal were the kiss, the “I love you notes”, hugs to students and telling

students “I love you” or similar statements. The facts included in the

Charges were the exact facts that [were] testified to by Detective Webb.

This issue is without merit.

2010 WL 3245281, at *5. In Taylor, the school district did not provide dates or detailed

descriptions, but it did provide the teacher with general notice of consistent conduct, e.g.

“I love you notes” and telling students “I love you.” Likewise, in this case, while it was

not necessary for the District to give a specific date or to give extensive details about the

October 26 incident, the District should have, at minimum, identified the inappropriate

behavior strategy at issue. For example, the District would have provided sufficient

notice had the District alleged that Ms. Finney utilized inappropriate behavior strategies

by engaging in physical altercations with students.

- 19 -

Moreover, we have determined that other actions of the District required the

exclusion of evidence. On January 28, 2016, a few months prior to the hearing, Ms.

Finney requested the October 26 video recording. In response to this request, the District

assured her that the video had nothing to do with the charges against her, stating:

With respect to the requests for video footage for the week of Oct. 5th; Oct.

26th; and Oct. 29th, there has been no articulation by opposing counsel that

this footage bears any relevance to the due process hearing. Ms. Finney was

not disciplined as a result of any of the incidents that allegedly occurred on

these dates and none of them are referenced in the Charges for Dismissal.

Until Ms. Finney’s [sic] offers some type of explanation as to why the

requested videos from Oct. 5th; Oct. 26th; and Oct. 29th, are relevant to

these proceedings, the District is left to guess at its own peril as to what the

potential relevance of these videos might be.

Based on the District’s foregoing representations, evidence concerning the

October 26 incident should not have been considered when deciding whether Ms.

Finney’s actions constituted unprofessional conduct. Accordingly, we will not consider

that incident.

C. October 30, 2015 Meeting

On October 30, 2015, Ms. Finney met with Beth Herren, a special education

supervisor for the District, and Louise Larkin, the principal at Freedom Intermediate, to

discuss the “day planner” incident captured on video on October 28. On rebuttal, Ms.

Larkin testified that Ms. Finney addressed Ms. Herren in a disrespectful and hostile

manner at that meeting.

Like the October 26 incident, the charging document did not identify this meeting

by providing a date, the identity of the participants, or a general description of the

meeting. Instead, the charging document merely alleged that Ms. Finney had

disrespectful interactions with other professionals. As such, we have determined that this

charge was too vague to allow Ms. Finney to prepare a defense against this particular

allegation. As previously stated, due process requires the District to identify, more

specifically, the actions or omissions at issue.

Also noteworthy, the District did not introduce evidence of Ms. Finney’s behavior

in this meeting in its case-in-chief, only in rebuttal, which suggests that for the District,

this incident was merely an afterthought, not a basis of the Charges for Dismissal.

- 20 -

IV. UNPROFESSIONAL CONDUCT

Ms. Finney argues that the District failed to prove the ground of unprofessional

conduct based on her actions on March 24, 2015 (classroom interruption), May 11, 2015

(restraint in hallway) and October 28, 2015 (day planner incident). She argues, inter alia,

that she was already disciplined for the March 24 and May 11, 2015 incidents; therefore,

she cannot be punished a second time for these actions. She also argues that even if the

court could consider her conduct on those dates, as well as her conduct on October 28,

the Board did not prove that her actions amounted to unprofessional conduct as defined

by the Tenure Act.

We have determined that Ms. Finney’s argument is misplaced, because the

Chancellor’s decision was principally based on the October 28, 2015 incident, for which

she had not been previously disciplined, and on significant and material evidence of Ms.

Finney’s unprofessional conduct that was unrelated to the March 24, 2015 (classroom

interruption) and May 11, 2015 (restraint in hallway) incidents.

A tenured teacher may be dismissed for unprofessional conduct. Tenn. Code Ann.

§ 49-5-511(2). Unprofessional conduct is “conduct that violates the rules or ethical code

of a profession or that is unbecoming a member of a profession in good standing, or

which indicates a teacher’s unfitness to teach.” Morris v. Clarksville-Montgomery Cty.

Consol. Bd. of Educ., 867 S.W.2d 324, 329 (Tenn. Ct. App. 1993) (citing 68 Am. Jur.2d

Schools § 161 (1993)).

Tennessee Code Annotated section 49-5-501(3) lists five factors in its definition of

“conduct unbecoming to a member of the teaching profession.”6 The one relevant here

reads: “Disregard of the teacher code of ethics in part 10 of this chapter, in such manner

as to make one obnoxious as a member of the profession.” Tenn. Code Ann. § 49-5-

501(3)(D).7 Pertinent here, the Teacher Code of Ethics states that an educator “[s]hall

make reasonable efforts to protect the student from conditions harmful to learning or to

health and safety.” Taylor, 2010 WL 3245281 at *8 (quoting Tenn. Code Ann. § 49-5-

1003(b)(7)).8

6

Tennessee Code Annotated section 49-5-501 uses the terms “unprofessional conduct” and

“conduct unbecoming a member of the teaching profession” interchangeably.

7

While the court is not limited to the factors listed in the statutory definition, the factors “are a

good starting point for the analysis of whether the material evidence supports the Trial Court’s finding of

unprofessional conduct.” Taylor, 2010 WL 3245281 at *8.

8

Legislation enacted on July 1, 2018, amended the language of Tenn. Code Ann. § 49-5-1003.

2018 Tenn. Pub. Acts Ch. 937.

- 21 -

The Hearing Officer found the actions of Ms. Finney on March 24, May 11, and

October 28, 2015 proved the ground of unprofessional conduct. The Chancellor found

that the October 28, 2015 incident, standing alone, was sufficient to prove the ground of

unprofessional conduct. Nevertheless, the Chancellor also relied on other incidents and

evidence to conclude that Ms. Finney’s actions constituted unprofessional conduct for

which her employment should be terminated.

A. The October 28, 2015 “Day Planner” Incident

On October 28, 2015, in an incident captured on video, Ms. Finney was involved

in a physical altercation with a special education student over a day planner at Freedom

Intermediate. After reviewing the video footage of October 28, as well as the testimony in

the record, the trial court determined that Ms. Finney was guilty of unprofessional

conduct.

The video shows Ms. Finney and a special education student engaged in a physical

struggle over a day planner that resembled a tug-of-war combined with a wrestling

match. In the video, the student entered a main office first, and when Ms. Finney entered,

the student placed the planner on a chair and sat down on top of it so that part of the

planner protruded from underneath him. Ms. Finney briskly walked over and grabbed the

planner. Both Ms. Finney and the student continued holding onto the planner in an

attempt to pull it from the other. This struggle led both Ms. Finney and the student

against the wall and onto the floor while both still held on to the planner. The incident

ended with the student jumping up and returning to the chair and Ms. Finney getting up

and walking out of the room with the planner.

The special education student had a behavior support plan that outlined

disciplinary steps for an educator to take in the event of a behavioral problem. The

outlined intervention for this student was a “three strikes program.” The three strikes

program was designed so that, first, the student received a warning from the educator in

the form of a “yellow card.” The plan was for the teacher to immediately display the card,

the intent of which was to calm the situation without further action. Second, if the yellow

card was ineffective, the educator was to escort the student to a calm-down room. The

plan warns that the student gets “more ‘wound up’ when he starts moving and getting

physical.” If these two actions do not resolve the problem, the student may be sent to in-

school suspension or home.

Ms. Finney testified that she signed this student’s behavior support plan and that

she was familiar with it; however, when the student took the planner from her on October

28, she decided to “try something different.” Ms. Finney stated that she grabbed the

planner and, as the student attempted to pull the planner from her hands, she “just didn’t

let go. And he jerked this way (indicating) and that way, and I just simply kept my hands

clenched.”

- 22 -

Ms. Finney explained, “I’m moving over to the wall because I had just gotten

results of a bone density test and the bones in my hip were thinning. And if I fall, the

most likely place for me to fall is on my hips.” According to Ms. Finney, she was moving

to the wall in preparation of going down on the floor with the student “because the best

way to keep from falling is to get on the floor.” Ms. Finney further stated that “[t]he only

motion I’m making is I’m simply clinching my fingers around the spiral binding . . . I slid

down, trying to get in the corner. And he jerked it and pulled me over.”

Angela Tisdale, a sixth-grade teacher at Freedom Intermediate, testified that she

entered the office when Ms. Finney and the student were already on the floor. She

“observed two individuals wrestling over an object in the corner of the office.” According

to Ms. Tisdale, when Ms. Finney and the student were on the floor, she saw “pulling of

the notebook” and “the natural movement that two bodies would have when they’re

trying to get positioned.” Ms. Tisdale testified that Ms. Finney was not trying to stop the

situation. It was not until someone in the office threatened to call the principal that the

student jumped up and sat back down in the chair, which ended the incident.

Special education teacher, Betsy Bagsby-Disch, also testified. She worked with

this specific student for the previous two years and stated that that the incident “was not

in keeping with [the student’s] behavior support plan,” which she described as “very

effective.” According to Ms. Bagsby-Disch, the appropriate intervention in the planner

incident would include “giving or showing the student a yellow card” instead of using

force to take the planner.

When reviewing the student’s behavior support plan, Ms. Bagsby-Disch testified

that this student “tends to increase his behavior levels and escalates more with physical

engagement.” She further explained that because the student’s behavior during the

planner incident was “not disruptive to a classroom setting … or appear[ed] to be moving

toward becoming a threat to his safety and safety of others,” engaging in a physical

power struggle over the planner was not appropriate.

Four education professionals, Angela Tisdale, Betsy Bagsby-Disch, Beth Herren,

special education supervisor, and Louise Larkin, principal of Freedom Intermediate, all

testified that Ms. Finney’s actions were highly inappropriate for a teacher in Ms. Finney’s

position. For example, Ms. Tisdale testified:

In any situation, you don’t want to put yourself in a position where you’re

engaged in a physical altercation over a planner or anything else with a

student. There [are] too many things that could go wrong. You could harm

the student. You could hurt yourself. You put yourself in a very precarious

situation as a teacher to do that.

- 23 -

Additionally, Ms. Herren, testified:

Oh, you wouldn’t – you wouldn’t need to have any kind of restraint training

or nonverbal crisis intervention training to know not to get into a power

struggle with a student, I mean, over a piece of paper….I felt like Ms.

Finney was a ticking time bomb.

Considering the disturbing and undeniable video footage of the physical struggle

in the main office of the school as well as the compelling testimony of several

professional educators who witnessed the incident in person or on tape, the evidence in

the record preponderates in favor of the Chancellor’s determination that Ms. Finney’s

behavior on October 28 was “unbecoming a member of a profession in good standing.”

Further, Ms. Finney violated the Teacher Code of Ethics, which requires teachers to

“make reasonable effort to protect the student from conditions harmful to learning or to

health and safety.” Tenn. Code Ann. § 49-5-1003(b)(7). As Ms. Finney admitted, she

knew the risk of injury involved when she decided to physically engage this student over

a planner but thought the best way to avoid harming herself and this child was to move

the altercation to the floor. To the contrary, the safest and most professional alternative

was to avoid a physical confrontation altogether by following the “three strikes” protocol.

The Chancellor correctly found that “[b]eyond the sheer spectacle” of the October

28 incident, Ms. Finney risked harming the special education student and she risked

subjecting the District to liability as a result. Moreover, it is also significant that the

October 28 incident constituted a violation of Ms. Finney’s Corrective Action Plan,

which required Ms. Finney to follow special education procedures, as well as a violation

of the special education student’s behavior support plan.

Accordingly, we affirm the Chancellor’s determination that the October 28, 2015

incident, standing alone, was sufficient to prove the ground of unprofessional conduct.

Although we concur with the Chancellor’s determination that this incident alone is

sufficient to prove the ground of unprofessional conduct, we shall also address the March

24, 2015 incident.

B. The March 24, 2015 Classroom Incident

Ms. Finney argues that she had already been punished for the March 24 incident;

therefore, she cannot be disciplined twice for her actions on March 24. The trial court did

not address whether Ms. Finney had been previously disciplined for this incident; instead,

it ruled that the “cumulative nature” of Ms. Finney’s disrespectful interactions with

colleagues, which included the March 24 incident, constituted unprofessional conduct

under the Tenure Act.

- 24 -

A public employee should not be disciplined twice for the same action, Cope v.

Tennessee Civil Serv. Comm’n, No. M2008-01229-COA-R3-CV, 2009 WL 1635140, at

*6 (Tenn. Ct. App. Jun. 10, 2009), and a written reprimand may constitute a disciplinary

action if it disciplines the recipient for specific conduct. See id. at *8. To determine

whether the written reprimand constituted a disciplinary action, the court should consider

the written reprimand as well as the surrounding circumstances. See id. at *7-8.

The written reprimand for the March 24, 2015 incident states:

Account of Incident:

Mrs. Finney entered Mrs. Walker’s classroom around 8:45 a.m. today. Mrs.

Walker was at her Promethean board teaching a lesson to her class. Mrs.

Finney proceeded to interrupt her and began talking loudly to her from

across the classroom. Mrs. Finney was visibly angry in regards to a

schedule change made by administration for a student who is in Mrs.

Finney’s class, but has inclusion in Mrs. Walker’s classroom. Mrs. Finney

said she was disappointed in the line of communication and the route it

took. Other statements to this effect were said by Mrs. Finney. She stated

that she believed in natural consequences and “there you have it.” Then she

quickly turned around and left the room. This incident took place in front of

a classroom of first graders. Communication with a peer in regards to a

student should have been made in private and at a time when students were

not present.

This incident is in direct violation to the plan of corrective action as agreed

upon on August 28, 2014. The area of concern cited is the following:

Unprofessional conduct as demonstrated by: Addressing any staff –

including professional educators, outside consultants, and/or any school or

district level supervisors in a disrespectful tone – either in person or by

email/written communication; Lack of respect for school and district

personnel as evidenced by body language; Negative attitude; and Lack of

support for administrative decisions – at the district and State levels.

Corrective Action Goal: To communicate with all school personnel –

especially other professionals – in a manner that demonstrates mutual

respect and adheres to acceptable professional boundaries.

Lisa Burgin, principal of Moore Elementary, signed the letter, and Ms. Finney signed it

below the statement, “I have received and understand the violation stated above.”

- 25 -

The possible disciplinary action for violating Ms. Finney’s Corrective Action Plan

is stated in the plan:

At the end of this corrective action plan, a meeting will be held to review

the outcomes of the plan; this meeting will occur by May 22, 2015. At that

time, Nedra Finney will be notified of the recommendation, which may

include: concluding the corrective action plan, continuing the corrective

action plan, or ending the corrective action plan as it was unsuccessful. In

the latter instance, procedures for dismissal would begin.

Considering the foregoing, we have determined that the written reprimand did not

constitute disciplinary action. Instead, it served as documentation that (1) Ms. Finney

violated her Corrective Action Plan and (2) school administrators discussed this violation

with Ms. Finney to encourage her “[t]o communicate with all school personnel –

especially other professionals – in a manner that demonstrates mutual respect and adheres

to acceptable professional boundaries.” Because the written reprimand did not constitute

disciplinary action, the March 24 incident may serve as a ground for dismissal based on

unprofessional conduct.

Ms. Finney does not dispute that she interrupted Ms. Walker’s class to express her

displeasure with an administrative decision, which occurred in the presence of the

students in the classroom. Ms. Finney merely disputes Ms. Walker’s account of exactly

what Ms. Finney said and the tone of voice Ms. Finney used, which Ms. Finney claims

was not angry.

Tennessee Code Annotated section 49-5-501(3)(D) provides that unprofessional

conduct is “[d]isregard of the teacher code of ethics…in such manner as to make one

obnoxious as a member of the profession.” The Teacher Code of Ethics states that a

teacher must strive to earn “the respect and confidence of one’s colleagues….” Tenn.

Code Ann. § 49-5-1002(2). Likewise, Ms. Finney’s Corrective Action Plan required her

to “communicate with all school personnel—especially other professionals—in a manner

that demonstrates mutual respect and adheres to acceptable professional boundaries.”

Simply put, Ms. Finney’s conduct on March 24 was disrespectful to her colleague;

however, the Chancellor did not determine that the March 24 incident, standing alone,

constituted unprofessional conduct. Rather, the court determined that the “cumulative

nature of Ms. Finney’s improper interactions with her students, and between Ms. Finney

and her colleagues [met] the statutory burden to prove ‘unprofessional conduct.’” There

is ample testimony in the record to support this determination.

For example, Jenny Dugger Williams, a school psychologist, and Mary Oddo, a

speech pathologist, both at Moore Elementary, testified that they frequently heard Ms.

Finney yelling at her students, some of whom had sensory issues that caused them to

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become more anxious with loud noises. Additionally, Ms. Oddo testified that it was not

uncommon for Ms. Finney to insult her colleagues, referring to Ms. Herren, the special

education supervisor, as “our fearful leader” and questioning Ms. Oddo’s professional

qualifications. Likewise, Ms. Burgin, principal of Moore Elementary, testified that when

Ms. Finney was suspended for three days following an incident with Ms. Oddo, Ms.

Finney exclaimed in the hallways, “Hello friends. Think of me because I have just been

suspended for three days... Mary Oddo complained about me and now I am suspended.”

Accordingly, we affirm the chancery court’s determination that the cumulative

nature of Ms. Finney’s numerous disrespectful interactions with colleagues and students

supports the finding of unprofessional conduct.

C. The May 11, 2015 Hallway Restraint Incident

Ms. Finney argues that she cannot be disciplined for the alleged restraint on May

11, 2015 because she received a three-day suspension for this incident. She also contends

the evidence does not support a finding that she restrained the student or that her actions

constituted unprofessional conduct.

The Tenure Act explicitly provides that for suspensions of three days or less, “the

director [of schools] may not impose any additional punishment beyond that described in

the notice of suspension.” Tenn. Code Ann. § 49-5-512(d)(4). It is undisputed that Ms.

Finney received a three-day suspension for the May 11, 2015 incident. Therefore, the

May 11, 2015 incident cannot serve as a ground for dismissal.

However, Ms. Finney’s behavior on May 11 is relevant because she was subject to

the Corrective Action Plan when it occurred. Moreover, her conduct on this and other

occasions may be considered when determining the appropriate disciplinary action. See

Kelly v. Tennessee Civil Serv. Comm’n, No. M1999-00168-COA-R3-CV, 1999 WL

1072566, at *4 (Tenn. Ct. App. Nov. 30, 1999) (“While prior disciplinary actions have no

bearing on whether an employee has engaged in work-related conduct that warrants

discipline, an employee’s prior conduct, both good and bad, can be considered when

determining what the appropriate disciplinary action should be.”). Furthermore, as this

court has commented:

An employee cannot be disciplined a second time for the same offense, but

previous offenses and the penalties may be considered in determining what

is the appropriate penalty for a subsequent offense. It would be nonsensical

for the appointing authority to be prohibited from considering that this

appellant was disciplined five times previously for the same type of

misconduct as he committed in this case as well as on four other occasions

and that the previous relatively slight penalties imposed upon him had little

if any deterrent or rehabilitative effect on him. The Commission was

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correct in considering appellant’s entire record in determining that

dismissal was appropriate.

Maasikas v. Metro. Gov’t, Nashville & Davidson Cty., No. M2002-02652-COA-R3-CV,

2003 WL 22994296 at *7 (Tenn. Ct. App. Dec. 22, 2003) (quoting London v. Parkway

and Park Comm’n, 503 So.2d 556, 557 (La. Ct. App. 1987) (citing Jarrett v. Capital

Area Legal Servs. Corp., Inc., 763 S.2d 698 (La. Ct. App. 2000)).

As to Ms. Finney’s conduct on May 11, 2015, the evidence supports a finding that

Ms. Finney illegally restrained a special education student. Betsy Bagsby-Disch, the

District’s expert witness, testified that she is the District’s Nonviolent Crisis Intervention

instructor for the Crisis Prevention Institute, and it is her job to certify professionals in

the District in non-violent crisis intervention and child restraint. After viewing the video

of the incident, she testified “with no doubt” that Ms. Finney used a restraint. Tennessee

Code Annotated section 49-10-1304 states that “[a] student receiving special education

services…may be restrained or isolated only in emergency situations” and only when the

child’s IEP provides for the use of a restraint. There is no evidence that Ms. Finney was

responding to an emergency situation, and furthermore, it is undisputed that the student’s

IEP did not provide for the use of a restraint.

D. Dismissal

If a statutory ground is proven, and the ground of unprofessional conduct has been

proven in this case, the court must determine whether the teacher’s conduct warrants the

drastic action of dismissal. See Ripley, 293 S.W.3d at 161. In making that determination,

the court examines prior conduct and prior disciplinary actions. Id.; Kelly, 1999 WL

1072566, at *4; Tennessee Dep’t of Human Servs. v. Tennessee Civil Serv. Comm’n, No.

01A019504CH00143, 1995 WL 581086, at *4 (Tenn. Ct. App. Oct. 5, 1995).

Ms. Finney was placed on a Corrective Action Plan for the 2014-2015 and the

2015-2016 school years for interacting with colleagues in an unprofessional manner and

for failing to follow special education laws and procedures. The goals of the plan were

A. To create a positive school climate where respect between educators,

administrators and staff is the norm.

B. To communicate with all school personnel—especially other

professionals—in a manner that demonstrates mutual respect and

adheres to acceptable professional boundaries.

C. To adhere to required district, state, and federal procedures as

expected of all personnel.

Moreover, the plan served as notice upon Ms. Finney that future violations could result in

dismissal.

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The testimony in the record supports the Chancellor’s finding that Ms. Finney

violated her Corrective Action Plan on March 24, 2015 by interacting with a colleague in

an unprofessional manner; that on May 11, 2015 she failed to follow district, state and

federal procedures by using an improper restraint; and other evidence in the record

supports the finding that Ms. Finney violated the plan on October 28, 2015, by refusing to

follow a student’s behavior support plan.

For the foregoing reasons, we affirm the disciplinary decision to terminate Ms.

Finney’s employment as a tenured teacher.

IN CONCLUSION

The judgment of the trial court is affirmed and this matter is remanded with costs

of appeal assessed against Nedra Finney.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

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