# Van Hooser v. Warren County Board of Education > Tennessee Supreme Court · April 8, 1991 · 807 S.W.2d 230 URL: https://www.frixlaw.com/law-library/cases/9666405 ## Case - **Full name:** Marilyn VAN HOOSER, Plaintiff-Appellant, v. WARREN COUNTY BOARD OF EDUCATION, Defendant-Appellee - **Court:** Tennessee Supreme Court - **Decided:** April 8, 1991 - **Citations:** 807 S.W.2d 230 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Daughtrey, Drowota, Fones, Cooper, O'Brien - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9666405 ## Opinion text *240 OPINION ON PETITION TO REHEAR PER CURIAM. The appellant, Marilyn Van Hooser, has filed a petition to rehear, alleging that the court’s opinion “overlooks material facts and conflicts with prevailing law.” After a careful review of the petition, we find no basis for this assertion, and we therefore decline to order a rehearing. We do agree, however, that one point in our opinion could benefit from further discussion. We thus offer the following observations in order to clarify our holding that the plaintiff is not entitled to back pay for the period of her suspension in the spring of 1983. We originally concluded that her temporary employment the following fall as a librarian was not a “reinstatement” for purposes of T.C.A. § 49-5-511. That statute governs the “dismissal or suspension of teachers generally,” and in subsection (a), it provides: (1) No teacher shall be dismissed or suspended except as provided in this part. (2) The causes for which a teacher may be dismissed are as follows: incompetence, inefficiency, neglect of duty, unprofessional conduct and insubordination. ... (3) A superintendent may suspend a teacher at any time that may seem necessary, pending investigation or final disposition of a case before the board or an appeal. If the teacher is vindicated or reinstated, he shall be paid the full salary for the period during which he was suspended (emphasis added). Of course, there is no possible way to argue that the teacher in this case was “vindicated.” Indeed, she was ultimately dismissed for the very reason that she was originally suspended. We found, furthermore, that she could not be said to have been “reinstated”, because that term “implies restoration to a position from which a person has been removed.” We pointed out that rather than being restored to her status as a classroom teacher, Van Hooser was “moved to a position where she had less student contact and less opportunity to engage in the type of conduct for which she was suspended.” The plaintiff takes issue with our conclusion in this regard, arguing that to limit “reinstatement” to restoration to the same position previously held by the suspended teacher conflicts with this court’s holdings in a number of other teacher tenure cases, namely White v. Banks, 614 S.W.2d 331 (Tenn.1981); Warren v. Polk County Board of Education, 613 S.W.2d 222 (Tenn.1981); McKenna v. Sumner County Board of Education, 574 S.W.2d 527 (Tenn.1978); Mitchell v. Garrett, 510 S.W.2d 894 (Tenn.1974); State ex rel. Pemberton v. Wilson, 481 S.W.2d 760 (Tenn.1972); and State v. Yoakum, 201 Tenn. 180 , 297 S.W.2d 635 (Tenn.1956). As the plaintiff correctly notes, these cases stand for the proposition that the teacher tenure act does not guarantee continuity of employment in a particular assignment or school. What the plaintiff fails to note is that all of them involve interpretation of T.C.A. § 49-5-510, which governs the right of the superintendent to makes transfers within the school system, and that they resulted from claims by the individual teachers that their particular transfers were improper in some respect. None of the cited cases involves the issue of back pay under the “vindication or reinstatement” clause of § 49-5-511. We find that for this reason, they have little relevance to the specific issue before us: whether the plaintiff was “vindicated or reinstated” within the meaning of § 49-5-511(a)(3) so that she is entitled to back pay during the period of her suspension. The plaintiff argues that because the term “vindicated or reinstated” is phrased in the disjunctive rather than the conjunctive, satisfaction of either is enough to establish entitlement. But just as “vindication” is not a technical legal term, neither is “reinstatement.” Both must be understood within the context of the statute. To vindicate is “to clear of accusation, blame, suspicion, or doubt with supporting arguments or proof” or “to justify, espe- *241 dally in light of later developments.” 1 The term carries with it the implication of exoneration. To reinstate means “to restore to a previous condition or position,” 2 “to put back or establish again, [as] to reinstate the ousted chairman.” 3 Admittedly, the term “reinstate” does not necessarily carry the same implication of exculpation as does the term “vindicate.” However, when viewed in context, that is, in terms of a finding by a board of education that the superintendent’s act of suspension is not warranted and that the teacher should be restored to her or his previous position, the word reinstatement is clearly a term of art. It implies that the teacher has either been exonerated, or if not exonerated, at least excused of the conduct that led to the suspension, i.e., either that there was no basis for the suspension after all, or that there were extenuating circumstances in mitigation. In either case the teacher, having been thus restored, is entitled to the pay that would have been forthcoming had the suspension never occurred. The plaintiff insists that the legislature’s use of the disjunctive “or” has controlling significance here. We disagree. The use of the disjunctive in subsection (a)(3) is obviously necessary to cover a situation where a suspended teacher does not wish, for one reason or another, to be reinstated to his or her former position. It may be, for example, that the suspended teacher has since secured another position in a different school district or is pursuing a different career. Such a teacher (or ex-teacher) may nevertheless wish to be “vindicated” by the board and thus collect back pay for the period of suspension. The point is that in the context of subsection (a)(3), use of the disjunctive does not mean that “vindication” and “reinstatement” are mutually exclusive terms. Given this interpretation of T.C.A. § 49-5-511, it is clear that the plaintiff is not entitled to the back pay she now claims. Following her suspension, she was permitted to work in the library under the assumption that her dispute with the superintendent and the board was about to be resolved. It was not resolved, however, principally because of her failure to endorse the conditions of settlement. Neither the superintendent nor the board had any thought of returning the plaintiff to the classroom until she sought professional counselling to overcome the obvious psychological deficiencies she had displayed in physically abusing some of her students. The decision to let her fill an interim position in the school library was a matter of largess and not “reinstatement” as that term is used in the statute on suspension and dismissal. Ultimately, the plaintiff failed to accept the settlement and was discharged, based on the original accusation of wrongdoing. In finding that the facts of this case do not constitute “reinstatement,” we do not hold that in order to be reinstated for purposes of subsection (a)(3), a teacher must be placed back in exactly the same position she had prior to suspension. Often this will not be possible because of the passage of time and because of administrative transfers and other personnel adjustments occasioned by the suspension itself. What is contemplated, in our judgment, is a determination by the board that suspension was unwarranted and that the teacher should be restored, that is, made whole in terms of back pay, as well as employment. There are no reported Tennessee cases undertaking to construe the terminology “vindicated or reinstated” as it is used in T.C.A. § 49-5-511(a)(3). In Jones v. Brown, 727 S.W.2d 497 (Tenn.1987), we held that a tenured teacher who was popularly elected to the office of superintendent and then defeated for reelection had retained his tenure rights during his term as superintendent and that he was therefore entitled to reinstatement as a teacher and back pay. But we specifically noted in that case that “no allegation of misconduct on the part of Plaintiff ha[d] ever been made.” *242 Id. at 498 . In Jones and later in Bates v. Deal, 728 S.W.2d 326 (Tenn.1987), we further held that once entitlement to back pay is established under T.C.A. § 49-5-511, an offset for monies earned from other sources during the period of suspension is not permitted by statute. Neither of these cases is relevant to the construction of § 49-5-511(a)(3) under the facts before us in the instant case, nor are they inconsistent with our interpretation of that provision. Because we find no basis upon which to alter our decision that the plaintiff is not entitled to back pay, we decline to grant the petition to rehear. . American Heritage Dictionary of the English Language, 1430 (1975). . Id. 1097. .Random House Dictionary of the English Language 1210 (Unabridged Ed.1967). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9666405. Public record. Not legal advice.