Saundra Thompson v. Memphis City Schools Board of Education

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
October 4, 2012 Session Heard at Nashville

SAUNDRA THOMPSON v. MEMPHIS CITY SCHOOLS BOARD OF
EDUCATION

Appeal by Permission from the Court of Appeals, Western Section
Chancery Court for Shelby County
No. CH-07-1926-3 Arnold B. Goldin, Chancellor

No. W2010-02631-SC-R11-CV - Filed December 21, 2012

We granted this appeal to determine whether a tenured teacher’s failure to return from sick
leave amounts to a constructive resignation or a forfeiture of tenure. We hold that, although
a tenured teacher’s failure to return from sick leave may constitute cause for termination,
there is no statute authorizing a board of education to deem it a constructive resignation or
a forfeiture of tenure. Accordingly, by dismissing the plaintiff tenured teacher without
providing her with written charges or an opportunity for a hearing, the defendant board of
education violated her rights under the Tennessee Teacher Tenure Act and her constitutional
right to due process of law protected by the Fourteenth Amendment of the United States
Constitution. Thus, the plaintiff is entitled to reinstatement, back pay consisting of her full
salary, compensatory damages for the actual harm she sustained, and attorney’s fees.
Accordingly, we reverse in part the judgment of the Court of Appeals, reinstate the judgment
of the trial court, and remand to the trial court for proceedings consistent with this decision.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed in Part; Judgment of the Trial Court Reinstated; Case Remanded

C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,
J ANICE M. H OLDER, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Richard L. Colbert and Courtney L. Wilbert, Franklin, Tennessee, for the appellant, Saundra
Thompson.

Robert L. J. Spence, Jr., Memphis, Tennessee, for the appellee, Memphis City Schools Board
of Education.
 OPINION

Factual and Procedural History

Saundra Thompson began working as a teacher for the Memphis City Schools Board
of Education (“Board”) in February of 1987. After attaining permanent tenure,1 Ms.
Thompson requested and received sick leave for a portion of the 2004-2005 school year and
for the entirety of the 2005-2006 school year. Ms. Thompson returned to work in August of
2006 and continued working without incident through October, at which time she requested
and received sick leave until January 2, 2007.

However, Ms. Thompson did not return to work on January 2, 2007. The parties
disagree on whether Ms. Thompson requested additional sick leave before or after failing to
return to work on January 2, 2007. Ms. Thompson attached as an exhibit in support of her
motion for partial summary judgment a letter from her physician, dated January 3, 2007,
requesting an extension of her sick leave. Along with this letter, Ms. Thompson’s attorney
submitted an affidavit stating that the letter had been produced by the Board during discovery
from the personnel file the Board maintained for Ms. Thompson. The Board has denied Ms.
Thompson ever requested an extension of her sick leave.

In any event, on April 11, 2007, Mr. Von W. Goodloe, a Labor Relations
Administrator for the Board, wrote a letter to Ms. Thompson, stating as follows:

This letter is the result of the documentation received in the
Division of Employee Relations. According to the
documentation, you have not reported to work or contacted your
Principal since January 2, 2007. Additionally, you have not
applied for a leave of absence through the Division of Human
Resources.

I find that discipline is warranted in this case. Therefore, on
behalf of the Superintendent, your employment is hereby
terminated effective January 2, 2007.

On April 23, 2007, a staff attorney for the Tennessee Education Association (“TEA”)
wrote the Director of Schools for the Memphis City Schools on Ms. Thompson’s behalf,
advising that the termination violated several provisions of the Tennessee Teacher Tenure

1
According to Ms. Thompson’s affidavit, she attained tenure in 1991. It is undisputed that she had
attained tenure prior to the events giving rise to this appeal.

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Act (“Tenure Act”), Tenn. Code Ann. §§ 49-5-501 to -515 (2002),2 including Ms.
Thompson’s right to receive written notice of the charges against her, id. § 49-5-511(a)(4),
her right to receive a document prepared by the Commissioner of the Department of
Education summarizing her rights and recourse under the Tenure Act, id. § 49-5-511(a)(5),
and her right to receive a pre-termination hearing before the Board, id. § 49-5-512(a). To
preserve Ms. Thompson’s rights, the TEA staff attorney requested a hearing before the
Board. The April 23, 2007 letter went unanswered, as did a similar June 4, 2007 letter from
the TEA staff attorney reiterating Ms. Thompson’s rights under the Tenure Act.

Having received no response to these letters, on September 28, 2007, Ms. Thompson
filed a complaint in the Chancery Court for Shelby County alleging that her dismissal
violated both the Tenure Act and her right to due process guaranteed by the Fourteenth
Amendment to the United States Constitution. See U.S. Const. amend. XIV, § 1. For the
alleged violation of her statutory rights, Ms. Thompson sought reinstatement, back pay, and
an injunction preventing the Board “from bringing any of the charges [that were]
contemplated in the April 11, 2007 letter against Ms. Thompson at any time in the future.”
For the alleged constitutional violation, Ms. Thompson sought compensatory damages
pursuant to 42 U.S.C. § 1983 and attorney’s fees pursuant to 42 U.S.C. § 1988. Ms.
Thompson did not request a hearing before the Board.

In an answer filed December 21, 2007, the Board admitted that Ms. Thompson had
acquired tenure as a teacher in the Memphis City Schools. The Board denied, however, that
it had refused to schedule a hearing for Ms. Thompson and stated that it was “presently
seeking to schedule a hearing.” The Board also denied violating Ms. Thompson’s
constitutional right to due process, but admitted that all of its actions regarding Ms.
Thompson’s employment were state action for purposes of the Fourteenth Amendment and
were taken under color of state law as that phrase is used in § 1983.

On April 23, 2009, Ms. Thompson moved for partial summary judgment, arguing that
the undisputed facts established that she had been dismissed in violation of both the Tenure
Act and her constitutional right to due process. As support for her motion, Ms. Thompson
relied on the October 18, 2008 depositions of Mr. Goodloe and Ms. Kimkea Harris, who, like
Mr. Goodloe, worked as a Labor Relations Administrator for the Board in 2007.

2
In this appeal we interpret and apply the Tenure Act in effect at the time these events occurred in
2007. See Tenn. Code Ann. §§ 49-5-501 to -515 (2002). Unless otherwise indicated, statutory citations in
this opinion cite the law in effect in 2007. To the extent the language of the current Tenure Act, Tenn. Code
Ann. §§ 49-5-501 to -515 (2009 & Supp. 2012), differs from the law applicable in 2007, our decision in this
appeal applies only to the law in effect in 2007.

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 The Board retained new counsel in late June of 2009, and Ms. Thompson agreed to
delay a hearing on her motion for partial summary judgment to allow the Board’s new lawyer
to become familiar with the case. On July 31, 2009, the Board, through counsel, wrote Ms.
Thompson stating that, while the Board believed she was not entitled to a hearing, the Board
would be willing to schedule a hearing to accommodate her earlier requests.

On August 3, 2009, the Board moved to amend its answer to allege that Ms.
Thompson’s failure to return to work on January 2, 2007, amounted to a constructive
resignation by which she abandoned, rescinded, or breached her employment contract and
forfeited tenure. Ms. Thompson filed a response in opposition to the Board’s motion, and
on September 11, 2009, the trial court denied the Board’s motion to amend, finding it futile
and unduly prejudicial.

On August 18, 2009, the Superintendent of the Memphis City Schools sent Ms.
Thompson written notice that charges of incompetence, inefficiency, and neglect of duty had
been presented to the Board, and that these charges, if true, would warrant her dismissal
under the Tenure Act. The charges were described in documents attached to the notice. In
general, the charges were based on Ms. Thompson’s failure to return from sick leave on
January 2, 2007, her alleged inability on December 17, 2004, to manage her classroom, as
well as her alleged ineffective instructional strategies, unprofessional behavior, and
inappropriate communication skills on that date, and her alleged failure on October 29, 2004,
to establish procedures and routines and to create an environment conducive to learning. The
Board scheduled a hearing on these charges for September 22, 2009.

Ms. Thompson refused to participate in the hearing and applied to the trial court for
a preliminary injunction to prevent it. Ms. Thompson argued that a hearing before the Board
two years after her dismissal and the filing of her lawsuit was an inadequate remedy for the
Board’s violation of her statutory and constitutional rights. The Board opposed Ms.
Thompson’s request for injunctive relief, arguing that she had consistently requested a
hearing before the Board since her dismissal.

At the conclusion of a September 23, 2009 hearing, the trial court orally granted Ms.
Thompson’s application for a preliminary injunction. In a subsequent October 26, 2009
order memorializing its decision, the trial court stated:

The Court finds that Ms. Thompson is not an employee of the [Board] and has
not been an employee of the [Board] since her employment ended in 2007.
The Court concludes that the procedures in Tenn. Code Ann. §§ 49-5-511 and
49-5-512 pertaining to the dismissal of a tenured teacher do not apply in the
case of a teacher who is no longer an employee of the school system, and

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 therefore concludes that the hearing sought to be enjoined would be contrary
to law until such time as Ms. Thompson is reinstated as an employee of the
[Board].

(Emphasis added.)

On the same day the trial court orally granted Ms. Thompson injunctive relief, the
Board sent a letter purporting to reinstate Ms. Thompson but immediately suspend her
without pay pending a November 6, 2009 hearing on the charges described in the
Superintendent’s letter of August 18, 2009.

Ms. Thompson appeared at the hearing, but she argued that the purported
reinstatement was ineffective. The hearing was suspended to allow the parties to seek
clarification from the trial court as to the meaning of the term “reinstated” used in the trial
court’s October 26, 2009 order. On April 1, 2010, the Board asked the trial court to clarify
the term,3 and Ms. Thompson filed a response to the request, arguing that she had not actually
been reinstated because she had not been paid back pay, given an assignment, or required to
complete the paperwork necessary for employment.

On April 21, 2010, the trial court clarified that the term “reinstated” should be
“construed as the term ‘reinstatement’ is used in Tenn. Code Ann. § 49-5-511(a)(3),
requiring the payment of the full salary without offset as that statute has been interpreted in
Bates v. Deal, 728 S.W.2d 326 (Tenn. 1987), and Jones v. Brown, 727 S.W.2d 497 (Tenn.
1987).” After the trial court ruled, the Board refused to reinstate Ms. Thompson and made
no further attempt to schedule a hearing on the August 18, 2009 charges against her.

Meanwhile, Ms. Thompson’s April 23, 2009 motion for partial summary judgment
remained pending. Also pending before the trial court were the Board’s October 2, 2009
motion to dismiss Ms. Thompson’s constitutional claim for failure to state a cause of action
under §1983 and the Board’s May 12, 2010 motion for summary judgment.

On July 9, 2010, the trial court held a hearing on all the pending motions. By an order
filed August 11, 2010, the trial court denied the Board’s motion to dismiss and motion for
summary judgment but granted Ms. Thompson’s motion for partial summary judgment. The
trial court concluded that the Board had violated Ms. Thompson’s rights under the Tenure
Act and her constitutional right to due process. As a remedy for the statutory violation, the
trial court awarded Ms. Thompson reinstatement and back pay to January 2, 2007. As for

3
Ms. Thompson filed for bankruptcy, and these proceedings were stayed from December 2, 2009,
until February 4, 2010.

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the constitutional violation, the trial court found Ms. Thompson was entitled to recover
compensatory damages for any actual harm she sustained and attorney’s fees as a prevailing
party on her § 1983 claim. 42 U.S.C. § 1988. The trial court scheduled a hearing to
determine the amount of damages.

At the hearing on damages, Ms. Thompson described the mental anguish she had
suffered as a result of her improper dismissal. The Board stipulated the amount of
accumulated sick leave, retirement, and salary benefits to which Ms. Thompson would have
been entitled had her employment not been terminated effective January 2, 2007. The trial
court awarded Ms. Thompson back pay under the Tenure Act of $227,802.10, compensatory
damages pursuant to § 1983 of $3500 for “career ladder supplemental pay,” credit for thirty-
five sick leave days, as well as all retirement and salary benefits that would have accrued had
Ms. Thompson’s employment not been terminated on January 2, 2007, compensatory
damages of $5000 for mental anguish, attorney’s fees of $80,426.25, and litigation expenses
of $8691.14.

The Board appealed, raising numerous issues. The Court of Appeals affirmed the trial
court’s decision denying the Board’s motion to dismiss and motion for summary judgment
but vacated the trial court’s decision granting Ms. Thompson summary judgment. Thompson
v. Memphis City Sch. Bd. of Educ., No. W2010-02631-COA-R3-CV, 2012 WL 134245
(Tenn. Ct. App. Jan. 18, 2012). The Court of Appeals determined that a factual dispute
existed as to whether Ms. Thompson “actually requested more sick leave prior to her
termination, or whether, in not doing so, she forfeited her tenure.” Id. at *11. The Court of
Appeals remanded Ms. Thompson’s Tenure Act claim to the trial court “with directions to
remand to the Board for a full evidentiary hearing pursuant to Tennessee Code Annotated
[s]ection 49-5-512(a).” Id. at *13. The Court of Appeals also remanded Ms. Thompson’s
constitutional claim to the Board. The intermediate appellate court explained that “central
to the determination” of the constitutional claim was the issue of whether Ms. Thompson
“possessed a property interest in her continued employment at the time the Board took
action,” id. at *12, or whether she had “voluntarily abandoned her employment by failing to
provide notice that she did not intend to return from sick leave thirty days prior to her return
date.” Id. If the Board determined that Ms. Thompson possessed a property interest in
continued employment, the Court of Appeals directed the Board next to determine whether
it “was legally entitled to terminate Ms. Thompson’s employment.” Id. If so, the Court of
Appeals explained, Ms. Thompson would be entitled only “to compensatory damages for her
actual injuries and nominal damages for the denial of due process itself.” Id.

We granted Ms. Thompson’s application for permission to appeal.

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 Standard of Review

This case has been appealed from the trial court’s grant of summary judgment and
award of damages to Ms. Thompson. Summary judgment is appropriate only if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04; see also
Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008). The moving party bears the
burden of establishing that summary judgment is appropriate as a matter of law because no
genuine issues of material fact are in dispute. Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn.
1993). In adjudicating motions for summary judgment, courts must view the evidence in the
light most favorable to the nonmoving party and resolve doubts concerning the existence of
genuine issues of material fact in favor of the nonmoving party. Martin, 271 S.W.3d at 84.
“A disputed fact is material if it must be decided in order to resolve the substantive claim or
defense at which the motion is directed.” Byrd, 847 S.W.2d at 215. We review de novo with
no presumption of correctness a trial court’s decision on a motion for summary judgment.
Martin, 271 S.W.3d at 84. De novo review also applies to the issues of statutory construction
presented in this appeal. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012). We
review the trial court’s findings of fact regarding damages de novo with a presumption that
the findings are correct, unless the preponderance of the evidence is otherwise. See Tenn.
R. App. P. 13(d).

Analysis

Tenure Act

The Legislature has plenary and exclusive authority to establish the makeup and
structure of Tennessee’s system of free public schools. Lawrence Cnty. Educ. Ass’n v.
Lawrence Cnty. Bd. of Educ., 244 S.W.3d 302, 310 (Tenn. 2007); S. Constructors, Inc. v.
Loudon Cnty. Bd. of Educ., 58 S.W.3d 706, 711 (Tenn. 2001); Bd. of Educ. v. Shelby Cnty.,
292 S.W. 462, 464 (Tenn. 1927). In the exercise of that authority, the 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).

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 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. It is undisputed that Ms. Thompson attained permanent tenure
prior to the events giving rise to this appeal. See id. § 49-5-503(2).4 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).5 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 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

4
Tennessee Code Annotated section 49-5-503(2) provides:

“Permanent tenure” applies to any teacher who:

(A) Has a degree from an approved four-year college or to
any vocational teacher who has the equivalent amount of
training established and licensed by the state board of
education;
(B) Holds a valid professional license based on training
covering the subjects or grades taught;
(C) Has completed a probationary period of three (3)
school years or not less than twenty-seven (27) months
within the last five-year period, the last year to be
employed as a regular teacher; and
(D) Is reemployed by the board for service after the
probationary period.
5
The only other statutorily authorized ground for dismissal of a tenured teacher is “[w]hen it
becomes necessary to reduce the number of teaching positions.” Tenn. Code Ann. § 49-5-511(b)(1). This
provision is inapplicable here.

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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); see also Sanders v. Vinson, 558 S.W.2d 838, 844 (Tenn. 1977)
(recognizing that a teacher’s receipt of written notice of the board’s decision triggers the
teacher’s right to demand a pre-termination hearing before the board).

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).

Ms. Thompson received absolutely none of the pre-termination protections the Tenure
Act provides. She was not charged with any of the exclusive grounds for dismissal of a
tenured teacher. In fact, she was not charged with anything at all, nor were written charges
against her presented to the Board for action prior to the April 11, 2007 letter from Mr.
Goodloe terminating her employment. We have long emphasized that the statute requiring
specific written charges is mandatory. See Turk v. Franklin Special Sch. Dist., 640 S.W.2d
218, 220 (Tenn. 1982).

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 In Turk, the board of education dismissed the teacher based in part on facts and
circumstances not specified in the written charges provided to the teacher prior to the Board
hearing. In overturning the teacher’s dismissal, this Court stated that “[t]he board acted in
flagrant disregard of the statutory requirement and fundamental fairness in considering
matters that should have been specifically charged in writing.” Id. at 220. The Court in Turk
relied on Potts v. Gibson, 469 S.W.2d 130 (Tenn. 1971), in which this Court explained that
“the first essential” for the dismissal of a tenured teacher is a “notice sufficient in substance
and form to fairly apprise the teacher of the charge against him and enable him to prepare his
defense in advance of the hearing.” Id. at 133.

This “first essential” was blatantly disregarded when Ms. Thompson’s employment
was terminated, and a cascade of noncompliance with the Tenure Act resulted. Because no
written charges were presented, the Board failed to make the required preliminary
determination of whether the charges, if true, would warrant Ms. Thompson’s dismissal. In
turn, because the Board made no preliminary determination, Ms. Thompson received no
notice of the Board’s decision and was denied her right to demand a pre-termination hearing
before the Board. Prior to filing this lawsuit, the only communication Ms. Thompson
received regarding the termination of her employment was the April 11, 2007 letter from Mr.
Goodloe, a Labor Relations Administrator, purporting to act on behalf of the Superintendent.
According to the letter, Mr. Goodloe alone determined both that discipline was appropriate
and that Ms. Thompson’s employment should be terminated retroactively to January 2, 2007.
A single administrator’s decision to dismiss a tenured teacher retroactively, without
providing her written notice of charges or a hearing before the Board, is the type of arbitrary
action the Tenure Act was meant to prevent.

The Board seeks to justify this noncompliance with the Tenure Act by arguing that
Ms. Thompson constructively resigned and forfeited her tenure by failing either to return
from sick leave on January 2, 2007, or to request an extension of leave in accordance with
Board policy. The Board’s arguments are altogether unpersuasive for two reasons.

First, the Board admitted in its answer that Ms. Thompson was a tenured teacher at
the time of her dismissal and that she was entitled to a hearing.

Second, contrary to the holding of the Court of Appeals, the statutes on which the
Board relies do not support its arguments that Ms. Thompson’s failure to return from sick
leave or request an extension of leave amounts to a constructive resignation and a forfeiture
of tenure.6 The term “constructive resignation” does not appear either in the Tenure Act or

6
The trial court denied the Board’s motion to amend its answer to assert that Ms. Thompson
(continued...)

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in judicial decisions interpreting it. The Board relies on Tennessee Code Annotated section
49-5-706 to support its argument. This statute provides:

Any teacher on leave shall, at least thirty (30) days prior to the
date of return, notify the director of schools in writing if the
teacher does not intend to return to the position from which the
teacher is on leave. Failure to render such notice may be
considered breach of contract.

Tenn. Code Ann. § 49-5-706 (2002). This statute does not authorize the Board to treat a
teacher’s failure to return from sick leave or failure to give thirty days notice of her intent not
to return as a constructive resignation or a forfeiture of tenure. Rather, it states that failure
to provide thirty days’ notice “may be considered breach of contract.” Id.

Seizing on the words “breach of contract” in section 49-5-706, the Board argues,
based on the heading and text of section 49-5-508(a), that Ms. Thompson’s breach of
contract—her failure either to return from sick leave or to give proper notice that she would
not be returning—resulted in an immediate forfeiture of tenure. We disagree.

Tennessee Code Annotated section 49-5-508(a) provides:

Breach of contract — Effect on tenure. — (a) A teacher shall give the director
of schools notice of resignation at least thirty (30) days in advance of the
effective date of the resignation. A teacher who fails to give such notice, in
the absence of justifiable mitigating circumstances, shall forfeit all tenure
status under this part; provided, that the board may waive the thirty (30) days’
notice requirement and permit a teacher to resign in good standing.

Id. § 49-5-508(a) (2002). Admittedly, the phrase “breach of contract” appears in the
statutory heading, but this language is of no significance because statutory section headings
“shall not be construed as part of the law.” Id. § 1-3-109 (2003). Thus, the success of the
Board’s argument depends on the text of section 49-5-508(a), and the text does not support
the Board’s assertion, but rather provides for a forfeiture of tenure status only if a teacher

6
(...continued)
constructively resigned and forfeited her tenure by failing either to return from sick leave or to request an
extension of leave. Although the Board failed to challenge on appeal the trial court’s ruling on its motion
to amend, the Court of Appeals reversed the trial court’s decision based on the arguments raised in the failed
amendment. In this Court, Ms. Thompson has challenged the Court of Appeals’ ruling, and we deem it
appropriate to address these issues. Tenn. R. App. P. 13(b).

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fails to give thirty days’ notice of her resignation. It is undisputed that Ms. Thompson did
not resign. Neither section 49-5-508(a) nor any other portion of the Tenure Act authorizes
the Board to treat her failure to return from or request an extension of sick leave as a
constructive resignation or an immediate forfeiture of tenure.

To be sure, a teacher’s failure to return from leave may be considered cause for
termination because it is “neglect of duty,” see id. § 49-5-511(a)(2), which is defined as
“gross or repeated failure to perform duties and responsibilities which reasonably can be
expected of one in such capacity, or continued unexcused or unnecessary absence from
duty.” Id. § 49-5-501(8) (emphasis added). Here, the Board certainly could have charged
Ms. Thompson with neglect of duty and sought her dismissal so long as the Board proceeded
consistently with the provisions of the Tenure Act. But no statute authorized the Board to
deem Ms. Thompson’s failure to return from sick leave a constructive resignation or a
forfeiture of tenure that stripped her of the pre-termination protections afforded by the
Tenure Act.7

In concluding that the trial court erred by granting Ms. Thompson summary judgment,
the Court of Appeals accepted the Board’s legal argument regarding forfeiture of tenure, and
found that whether Ms. Thompson “actually requested more sick leave prior to her
termination or whether, in not doing so, she forfeited her tenure” was a disputed issue of
material fact. Thompson, 2012 WL 134245, at *11. Having rejected the Board’s legal
argument, we also disagree with the Court of Appeals’ conclusion that a disputed issue of
material fact exists. “A disputed fact is material if it must be decided in order to resolve the
substantive claim or defense at which the motion is directed.” Byrd v. Hall, 847 S.W.2d 208,
215 (Tenn. 1993). Whether Ms. Thompson requested additional sick leave is not a material
factual dispute because, regardless of its resolution, no statute authorized the Board to treat
her failure to return from or request additional sick leave as a constructive resignation or a
forfeiture of tenure. The undisputed material facts clearly establish that Ms. Thompson was
a tenured teacher and that the Board violated her rights under the Tenure Act.

Constitutional Due Process

These same undisputed material facts also establish that the Board deprived Ms.
Thompson of her constitutional right to procedural due process. A tenured teacher, like other

7
The Board’s argument regarding forfeiture of tenure is also undercut by another provision of the
Tenure Act that permits the immediate suspension and dismissal of teachers convicted of certain drug and
felony offenses but preserves to those teachers the rights of appeal and review provided in the Tenure Act.
Tenn. Code Ann. § 49-5-511(c)(1). This statute suggests that, had the Legislature intended to authorize the
immediate dismissal of teachers who fail to return from sick leave, it would have said so.

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public employees, possesses a constitutionally protected property interest in continued
employment, and she cannot be deprived of this right without due process. See Bd. of
Regents v. Roth, 408 U.S. 564, 576-77 (1972); Johnston-Taylor v. Gannon, 907 F.2d 1577,
1581 (6th Cir. 1990). Two of the essential requirements of due process are pre-deprivation
notice and an opportunity to be heard. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542 (1985). At a minimum, the Due Process Clause of the Fourteenth Amendment of the
United States Constitution 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 the employer. Id. at 546; Gunasekera v. Irwin, 551 F.3d 461, 469 (6th Cir.
2009); Farhat v. Jopke, 370 F.3d 580, 595 (6th Cir. 2004). These minimal requirements are
constitutionally essential.8

The undisputed material facts establish that the Board failed to provide Ms. Thompson
with any pre-termination notice of charges, explanation of evidence, or opportunity to be
heard. The Board’s failure to afford these minimal constitutional safeguards violated Ms.
Thompson’s constitutional right to procedural due process.

Remedy - Tenure Act Violation

The parties disagree as to the appropriate remedy for a violation by the Board of Ms.
Thompson’s rights under the Tenure Act. Ms. Thompson argues that the trial court correctly
ordered her reinstatement, awarded full salary as back pay, and properly declined to deduct
from the award money she earned or could have earned after her improper dismissal.

The Board argues that Ms. Thompson’s only remedy is, and always has been, a
hearing before the Board to determine whether she should be dismissed for cause. The Board
insists that it attempted to provide this remedy on August 18, 2009, when it notified Ms.
Thompson of the written charges against her and scheduled a hearing on those charges.9

To determine the proper remedy, we turn again to a portion of the Tenure Act, which
states:

8
The Tenure Act actually provides teachers in Tennessee with protections greater than these minimal
constitutional requirements.
9
The Board also reasons that Ms. Thompson’s remedy is limited to a hearing because the Tenure
Act provides for judicial review of the Board’s decision pursuant to the common law writ of certiorari. This
argument is without merit. At the risk of stating the obvious, we are not here reviewing a decision of the
Board; rather, we are considering Ms. Thompson’s claim that her termination violated the Tenure Act
precisely because she was never afforded a pre-termination hearing before the Board.

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 A director of schools may suspend a teacher at any time that
may seem necessary, pending investigation or final disposition
of a case before the board or an appeal. If vindicated or
reinstated, the teacher shall be paid the full salary for the period
during which the teacher was suspended.

Tenn. Code Ann. § 49-5-511(a)(3) (emphasis added). This statute establishes the remedy for
teachers who are suspended but later vindicated or reinstated. Of course, Ms. Thompson was
not suspended; rather, her employment was terminated without charges or a hearing in
violation of the Tenure Act. No statute addresses the appropriate remedy for a tenured
teacher in Ms. Thompson’s circumstances because the statute does not contemplate that a
tenured teacher will be dismissed without charges or a hearing. Rather, the statute
contemplates only that a teacher may be suspended “pending investigation or final dispositon
of the case before the board or on appeal.” Id. Where, as here, a tenured teacher’s
employment is summarily terminated in violation of the Tenure Act, section 49-5-511(a)(3)
provides the appropriate remedy.

Relying on Van Hooser v. Warren County Board of Education, 807 S.W.2d 230
(Tenn. 1991), the Board next argues that Ms. Thompson is not entitled to reinstatement under
section 49-5-511(a)(3) because she has not been exonerated. Van Hooser does not support
the Board’s argument.

The tenured teacher in Van Hooser was suspended in the spring of 1983 for paddling
eight students for failing to do their assignments. Van Hooser, 807 S.W.2d at 232. The
teacher obtained counsel and negotiated a settlement before charges against her were
presented to the board pursuant to the Tenure Act. Id. at 232-33. Under the terms of the
settlement, the teacher was to be reinstated under probation in the fall term of the 1983-1984
school year, possibly transferred, and required to satisfy certain obligations for continued
employment. Id. at 233.

Although the suspension had not been officially lifted and the teacher had not satisfied
the obligations imposed on her by the settlement, the teacher returned to work for the 1983-
1984 school year, but she worked as a librarian not a classroom teacher. Id. at 234. After
the teacher failed to satisfy her obligations under the settlement, the board advised her that
she had not been rehired for the 1984-1985 school year. Id. At that time the board did not
terminate her employment according to the procedures mandated by the Tenure Act. Id. The
board later cured this error, provided the teacher with “the appropriate procedures as set
forth in the Teacher Tenure Act,” and terminated her employment. Id. at 239. The teacher
appealed, seeking reinstatement as a classroom teacher and damages for lost income for the
suspension during the 1982-1983 school year and for the 1984-1985 school year when the

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board notified her that she had not been rehired but failed to follow the procedures mandated
by the Tenure Act. Id. at 236.

Before this Court, the board conceded liability for the wages the teacher lost during
the 1984-1985 school year “because of the school board’s failure to comply fully with the
provisions of the tenure statute.” Id. However, the board argued that it did not owe the
teacher back pay for the suspension at the end of the 1982-1983 school year. Id. at 238. This
Court agreed, finding that the teacher had not been “‘vindicated of the charges underlying
her suspension.’” Id. The Van Hooser Court also explained that the teacher’s employment
as a librarian after her suspension did not amount to reinstatement, for purposes of section
49-5-511(a)(3), because that action had been “taken because negotiations were continuing
with her attorney to settle the matter.” Id. This Court declared that “reinstatement,” as used
in § 49-5-511(a)(3), “is clearly a term of art,” which “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. that there was no basis for the suspension after all, or that there were extenuating
circumstances in mitigation.” 807 S.W.2d at 241. This Court explained that a teacher who
is reinstated after a suspension “is entitled to the pay that would have been forthcoming had
the suspension never occurred.” Id.

As the foregoing summary clarifies, our discussion of reinstatement and exoneration
in Van Hooser presupposed board action in compliance with the Tenure Act. Indeed, in Van
Hooser, the board conceded its liability to the teacher for wages she lost during the 1984-
1985 school year “because of the school board’s failure to comply fully with the provisions
of the tenure statute.” Id. at 236.

Unlike the teacher in Van Hooser, Ms. Thompson received none of the procedures
provided by the Tenure Act. Her employment was terminated without charges ever having
been presented against her or action by the Board. Exoneration, as the term was used in Van
Hooser, is not practicable in these circumstances. We conclude that exoneration is not a
prerequisite to reinstatement for a tenured teacher whose employment has been summarily
terminated without notice of the charges against her or action by the board. The trial court
did not err by ordering Ms. Thompson’s reinstatement.

Having concluded that Ms. Thompson is entitled to reinstatement, we must next
consider the appropriate measure of damages to which she is entitled. This Court has
previously interpreted the language of § 49-5-511(a)(3) as entitling vindicated or reinstated
teachers to an award of “full salary” without offset for money the teacher earned or could
have earned in other employment. Bates v. Deal, 728 S.W.2d 326, 326 (Tenn. 1987); Jones
v. Brown, 727 S.W.2d 497, 499 (Tenn. 1987) (“This statute is very specific. Plaintiff is
entitled to full back pay at the rate of a teacher’s salary.”). The Legislature has not revised

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the statute to express disapproval of this interpretation. “[T]he [L]egislature’s failure to
‘express disapproval of a judicial construction of a statute is persuasive evidence of
legislative adoption of the judicial construction.’” Freeman Indus. v. Eastman Chem. Co.,
172 S.W.3d 512, 519 (Tenn. 2005) (quoting Hamby v. McDaniel, 559 S.W.2d 774, 776
(Tenn. 1977)).

Furthermore, the Board has not advanced a persuasive argument for overruling or
modifying these prior decisions construing section 49-5-511(a)(3). Our role in construing
statutes is to determine and effectuate legislative intent and purpose. See Lee Med., Inc. v.
Beecher, 312 S.W.3d 515, 526 (Tenn. 2010); In re Estate of Tanner, 295 S.W.3d 610, 613
(Tenn. 2009). To fulfill this role, we focus on the text of the statute and give the words their
natural and ordinary meaning in the context in which they appear and in light of the statute’s
general purpose. See Lee Med., Inc., 312 S.W.3d at 526; Hayes v. Gibson Cnty., 288 S.W.3d
334, 337 (Tenn. 2009); Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 176
(Tenn. 2008). When the language of a statute is clear and unambiguous, courts look no
farther to ascertain its meaning. See Lee Med., Inc., 312 S.W.3d at 527; Green v. Green, 293
S.W.3d 493, 507 (Tenn. 2009). The clear and unambiguous statutory language entitles Ms.
Thompson to “full salary.” Tenn. Code Ann. § 49-5-511(a)(3). We decline to read an offset
requirement into this clear statutory language.

The Board asserts that awarding Ms. Thompson full salary without offset will provide
her a windfall.10 We disagree. The Board is correct that Ms. Thompson’s award of “full
salary” will be considerable; however, this may be attributed primarily to the Board’s refusal
to comply with statutory mandates. The Tenure Act is carefully crafted both to afford
teachers an expeditious process and to limit the liability incurred by boards of education
when teachers are vindicated or reinstated.11 The Tenure Act has not operated as designed

10
We note that Ms. Thompson’s attorney conceded at oral argument that Ms. Thompson was unable
to work from January to June 2007. The Board asserted that Ms. Thompson remained unable to work
through 2008. Contrary to the Board’s assertion, the proof in the record shows that Ms. Thompson began
teaching at Southwest Community College in the fall of 2007.
11
For instance, a teacher has thirty days after receiving notice of charges to request a hearing. Tenn.
Code Ann. § 49-5-512(a). The hearing must be scheduled no later than thirty days after receipt of a teacher’s
request. Id. A board has only ten days after the hearing to decide the case. Id. § 49-5-512(a)(9). A teacher
has just thirty days after the board’s decision to seek judicial review. Id. § 49-5-513(b). A board has thirty
days thereafter to file an answer to the petition. Id. § 49-5-513(f). The trial court must schedule a hearing
on the petition “at the earliest practical date.” Id. § 49-5-513(g). A teacher’s filing of the petition for judicial
review “shall suspend the order of the board pending a decision by the chancellor, but the teacher shall not
be permitted to return to teaching pending final disposition of the appeal.” Id. § 49-5-513(e). Additionally,
a director of schools is authorized to suspend a teacher “at any time that may seem necessary, pending
(continued...)

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in this case because its requirements were ignored, even after Ms. Thompson filed suit and
the trial court ruled that a hearing could not occur until Ms. Thompson had been reinstated.

The lack of compliance with this sixty-year-old statute is puzzling. Indeed, had Ms.
Thompson been reinstated in response either to the letters of April 23 and June 4, 2007 from
the TEA staff attorney, or to the April 21, 2010 order of the trial court, the Board’s liability
would have been limited. The Board chose not to reinstate Ms. Thompson at any of these
earlier times and is now liable for the “full salary” remedy provided by the Tenure Act. We
conclude that the trial court correctly held, based on clear statutory language and long-
standing precedent, that Ms. Thompson is entitled to reinstatement and an award of full
salary without offset for monies she earned or could have earned in other employment.
Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the
trial court to determine the additional “full salary” that has accrued during the pendency of
this appeal.

Remedy - Constitutional Violation

The parties also disagree as to the appropriate remedy for the Board’s violation of Ms.
Thompson’s constitutional rights. Pursuant to § 1983, the trial court awarded Ms. Thompson
compensatory damages of $3500 for “career ladder supplemental pay,” credit for thirty-five
accumulated sick leave days, all retirement and salary benefits that would have accrued had
Ms. Thompson’s employment not been terminated, $5000 in compensatory damages for
mental anguish, $80,426.25 for attorney’s fees, and $8691.14 for litigation expenses.
Although the Board agrees that a litigant may recover damages for actual harm caused by a
violation of her constitutional right to procedural due process, the Board maintains that Ms.
Thompson failed to prove actual harm.

“Section 1983 does not create or confer substantive rights.” King v. Betts, 354
S.W.3d 691, 702 (Tenn. 2011) (citing Chapman v. Hous. Welfare Rights Org., 441 U.S. 600,
617 (1979)). Rather, it provides a remedy when rights protected by the United States
Constitution or other federal statutes are violated. Id. (citing Albright v. Oliver, 510 U.S.
266, 271 (1994); Graham v. Connor, 490 U.S. 386, 393-94 (1989); Baker v. McCollan, 443
U.S. 137, 144 n.3 (1979)). The Board is correct that litigants who wish to recover damages
pursuant to § 1983 “must allege and prove more than a violation of federal law.” King, 354
S.W.3d at 703. To recover damages, litigants must “prove that they personally suffered an
actual injury to a federally protected right.” Id. (footnotes omitted); see also Farrar v. Hobby,
506 U.S. 103, 112 (1992) (“[N]o compensatory damages may be awarded in a § 1983 suit

11
(...continued)
investigation or final disposition of a case before the board or an appeal.” Id. § 49-5-511(a)(3).

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absent proof of actual injury.”); Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 310
(1986) (“Section 1983 presupposes that damages that compensate for actual harm ordinarily
suffice to deter constitutional violations.”); Carey v. Piphus, 435 U.S. 247, 254 (1978)
(“[T]he basic purpose of a § 1983 damages award should be to compensate persons for
injuries caused by the deprivation of constitutional rights . . . .”). In addition to out-of-pocket
losses, compensatory damages may also be recovered for injuries such as impairment of
reputation, personal humiliation, and mental anguish and suffering. Stachura, 477 U.S. at
307; see also Carey, 435 U.S. at 264.

At the hearing on damages, Ms. Thompson described the mental anguish and suffering
she endured as a result of her improper dismissal without a hearing. The Board vigorously
cross-examined Ms. Thompson. After considering Ms. Thompson’s testimony, as well as
the arguments for and against an award, the trial court awarded Ms. Thompson $5000 as
compensation for the mental anguish she suffered. The proof does not preponderate against
either the trial court’s finding that Ms. Thompson suffered an actual injury of mental anguish
or the trial court’s award of $5000.

As for the remainder of the award, the Board stipulated in the trial court that Ms.
Thompson would be entitled to recover career ladder supplemental pay, accumulated sick
leave, and all retirement and salary benefits if the trial court concluded that the Board
violated her statutory and constitutional rights. Acting on this stipulation, the trial court
awarded Ms. Thompson $3500 for “career ladder supplemental pay,” credit for thirty-five
accumulated sick leave days, all retirement and salary benefits that would have accrued had
Ms. Thompson not been terminated, $80,426.25 for attorney’s fees, and $8691.14 for
litigation expenses. Ms. Thompson’s attorney expressed concern, however, that these
stipulated damages would be set aside on appeal if premised on the violation of Ms.
Thompson’s rights under the Tenure Act. He explained that the Court of Appeals had held
that a vindicated teacher “is not entitled to recover for career ladder benefits, vacation days,
sick days, retirement contribution, or social security contribution.” See Mumford v. Bd. of
Educ. of Memphis, 173 S.W.3d 452, 457 (Tenn. Ct. App. 2004). Responding to this concern,
the trial court expressly premised this portion of the award on § 1983.

Given the Board’s stipulation, the proof does not preponderate against the trial court’s
finding that Ms. Thompson’s actual injuries included her career ladder supplemental pay,
accrued sick leave, retirement, and other salary benefits.12 Therefore, on remand the trial
court shall determine and add to Ms. Thompson’s award the career ladder supplemental pay,

12
Because the parties stipulated Ms. Thompson’s entitlement to these damages and because the trial
court awarded these damages pursuant to § 1983, our holding herein does not implicate the decision in
Mumford.

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sick leave, retirement, and salary benefits that have accrued during the pendency of this
appeal.

Additionally, as a prevailing plaintiff in a § 1983 action, Ms. Thompson is entitled to
recover reasonable attorney’s fees pursuant to § 1988. Maine v. Thiboutot, 448 U.S. 1, 9-11
(1980); Wimley v. Rudolph, 931 S.W.2d 513, 517 (Tenn. 1996). On remand, the trial court
shall calculate and award Ms. Thompson the reasonable attorney’s fees incurred as a result
of this appeal.

Finally, we direct the trial court to conduct the proceedings on remand as
expeditiously as possible so as to conclude this five-year litigation and allow the correct
process to proceed. This decision does not preclude the Board from seeking to terminate Ms.
Thompson’s employment so long as the Board first reinstates her and pays the back pay and
other damages to which she is entitled. Indeed, counsel for Ms. Thompson acknowledged
as much at oral argument. However, should the Board choose to seek termination of Ms.
Thompson’s employment, it must comply with the procedures prescribed by the Tenure Act.

Conclusion

For the reasons explained herein, we conclude that the trial court properly granted Ms.
Thompson summary judgment and properly awarded her damages pursuant to the Tenure Act
and § 1983, as well as attorney’s fees pursuant to § 1988. Accordingly, the judgment of the
Court of Appeals is reversed in part, and the judgment of the trial court is reinstated.
However, this case is remanded to the trial court to calculate and to add to Ms. Thompson’s
award the additional salary and benefits that have accrued during the pendency of this appeal.
The trial court shall also calculate and award Ms. Thompson the reasonable attorney’s fees
incurred as a result of this appeal. Costs of this appeal are taxed to the Board.

_________________________________
CORNELIA A. CLARK, JUSTICE

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