                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                October 5, 2010 Session

  JESS R. OGG, JR. v. CAMPBELL COUNTY BOARD OF EDUCATION

                Appeal from the Chancery Court for Campbell County
                      No. 08-001 Billy Joe White, Chancellor




            No. E2009-02147-COA-R3-CV-FILED-SEPTEMBER 20, 2011




In this age discrimination and breach of contract case, Jess R. Ogg, Jr. (“Employee”) filed
suit against his former employer, Campbell County Board of Education (“Employer”),
alleging that Employer had violated the Tennessee Human Rights Act by terminating him
because of his age and replacing him with a younger, less-qualified teacher. Employer
argued that it had legitimate, non-discriminatory reasons for terminating Employee and hiring
a suitable replacement. Following a bench trial, the court found that Employer had engaged
in age discrimination and breached its contract and that Employee was entitled to recover his
lost salary. Employer appeals. We affirm the decision of the trial court.

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

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and D. M ICHAEL S WINEY, J., joined.

John C. Duffy, Knoxville, Tennessee, for the appellant, Campbell County Board of
Education.

David H. Dunaway, LaFollette, Tennessee, for the appellee, Jess R. Ogg, Jr.

                                        OPINION

                                   I. BACKGROUND

      Employee, who was 69 years old and a tenured teacher at Campbell County High
School (“CCHS”) prior to his termination, was initially hired in 1988 as a janitor for the
school system. He worked as a janitor until 1992, when he began teaching automotive
technology after he applied for a teaching position at CCHS. He was initially granted a one-
year probationary trade shop license with the following three areas of endorsement:
automotive services, body and fender, and mechanics. Approximately one year later,
Employee obtained his Graduate Equivalency Diploma1 (“GED”), and shortly thereafter, he
obtained a three-year apprentice teacher trade shop license with the same three areas of
endorsement. Approximately three years later, Employee obtained his professional
occupational education license with the same three areas of endorsement. His license was
valid for ten years, expiring on August 31, 2006.

        Employee received an offer of employment by letter each year that he was employed
by Employer. These letters reflected that Employee was offered re-employment, “subject to:
adequate funding, proper certification and qualifications, program requirements, and student
enrollment.” On April 12, 2006, Employee received his offer letter for the 2006-2007 school
year and accepted the offer by signing the letter and returning it to Employer. A few days
after he received the offer letter, Employer advised Employee that he needed to renew his
license and that two of his National Institute for Automotive Service Excellence (“ASE”)
certifications were set to expire on June 30, 2007.2 In addition, Employee’s body and fender
endorsement had already expired prior to the 2006-2007 school year. In order to renew his
license, Employee needed to maintain all three of his certifications with the ASE in each area
that he had been endorsed when he originally obtained his license. Employee was unable to
pass the test indicating that he was certified in collision repair, which would have fulfilled
the body and fender endorsement that had expired. Thus, he lacked one ASE certification
in order to renew his license for the 2006-2007 school year.

        Realizing that he had not fulfilled the requirements for maintaining his license,
Employee spoke with Employer and asked if he could remove the body and fender
endorsement from his license. Employer inquired with the State of Tennessee Department
of Education and received a letter from Ralph Barnett, Assistant Commissioner of that
department. Mr. Barnett advised Employer that Employee’s endorsements must be renewed
and could not be removed even if Employee did not intend to teach a class in the area of that
endorsement. Mr. Barnett also advised Employer that Employee’s license had expired but
that “[t]here [wa]s a provision by licensure that allow[e]d a permit to be issued, at the request
of the school system, for a teacher whose license ha[d] expired.” Mr. Barnett warned



1
 A form in the record indicated that Employee had obtained a Bachelor of Science from the University of
Tennessee at Knoxville. A copy of this degree was not included in the record.
2
 His records from ASE reflected that he had passed the tests for certification in brakes and suspension and
steering but that these certifications were set to expire on June 30, 2007.
                                                   -2-
Employer that Employee’s teaching without a license “could affect students receiving credit
for their fall semester course work as well as the possibility of state and or federal funds
being withheld.”

        Approximately two weeks later, on January 3, 2007, Employer fired Employee,
advising him that he was no longer “eligible to teach for the Campbell County School System
or for the State of Tennessee” and that he did not “have the correct employment standard to
teach Automotive Technology.” The letter from Mr. Barnett was attached to Employee’s
termination letter. Employer offered Employee’s position to Dwayne Lee, a 34-year-old
teacher who had a valid professional teacher’s license and an ASE certification in engine
repair but did not have a professional occupational education license, which was necessary
to teach automotive technology. Mr. Lee obtained an apprentice occupational education
license with a mechanics endorsement on January 12, 2007. Employee filed suit, alleging
age discrimination and breach of contract.

        At trial, Employee’s counsel read portions of Sharon Ridenour’s deposition into the
record. Ms. Ridenour was Employer’s Career and Technical Education Director. She stated
that Dr. Judy Blevins, the Director of Schools for Campbell County, would have been
responsible for issuing Employee’s contract each year and that she told Dr. Blevins that
Employee’s license was set to expire in August 2006. She admitted that Employee’s
endorsement in body and fender was unnecessary because that class had not been offered
since 1996. She remembered that they had received a letter from Mr. Barnett in 2006 in
which he told them that Employee could obtain a permit even though his license had expired.
She said that Dr. Blevins did not attempt to obtain a permit for Employee because of the
“rules of the permit.” She said that Employee’s replacement, Mr. Lee, was teaching at
LaFollette Middle School (“LMS”) when he was asked to replace Employee. She related that
Mr. Lee had ASE certification in one area and that he had three years to obtain his industrial
certification and get his professional occupational education license.

        Portions of Dr. Blevins’s deposition were also read into the record. Dr. Blevins
testified that after she received the letter from Mr. Barnett advising her of the option to obtain
a permit, she called Mr. Barnett and asked him whether his statement in the letter meant that
they could request a permit. She said that Mr. Barnett told her that he would not approve a
permit for Employee. She was told “that in order to get a permit and it be granted that we
would have to advertise and show that we had no one, absolutely no one licensed or could
not find anybody” to fill the position. She said that instead of allowing Employee to finish
the school year, they decided to terminate him because they were worried that students would
not receive credit if they were taught by an unlicensed teacher. She admitted that the
students who had taken a class with Employee after his license had expired were not
penalized or denied credit for that class.

                                               -3-
        When asked if she was aware that Darrell Justin Chapman and Michael Allman
Sanders, who were much younger than Employee, had received waivers, Dr. Blevins stated
that she knew when waivers and permits had been given because they had to request the
waiver or permit. She said that the waivers3 that had been given to Mr. Chapman and Mr.
Sanders were given to them because they had received their college degrees but had not yet
received their license. She noted that their applications had to be approved by the University
of Tennessee and that they had to agree to “get into a course of study in [their] field in order
for the state department to give them a waiver.” She claimed that Employee’s age did not
play a role in the decision to terminate him.

        Gary Seale, who was the principal of CCHS at the time of Employee’s termination,
stated that Employee was the oldest teacher at the school and that Mr. Lee was “substantially
younger” than Employee. He said that Employee’s predecessor, Bruce Ferguson, had taught
auto body repair until he was terminated and replaced by Michael Ridenour, who was
younger. He related that the course was abolished for environmental reasons after Mr.
Ferguson was terminated.

        Mr. Seale testified that he currently taught at LMS because Employer had dismissed
him as principal. He said that he was replaced by a “[s]ignificantly younger” man after
having served as principal for four years.4 He stated that he was familiar with the licensing
requirements and that he knew the regulations regarding temporary licenses and certifications
for those who did not have a teacher’s license. He indicated that an Interim B license
allowed a person who was unlicensed to teach for one year. He said that the Director of
Schools had the ability to grant permission for a teacher to receive an Interim B license but
that in order for an employee to have received such a license, the employee would have had
to submit an application. He noted that he believed that Employee would have been eligible
to receive such a license. He testified that after they learned that Employee’s license was
going to expire, Dr. Blevins told him that “she would do anything and everything that she
could to help.” He said that despite her assurances, Dr. Blevins asked him to encourage
Employee to quit “because she did not want to have to do what she was going to do.”

        Mr. Seale reported that Mr. Lee did not have any experience, while Employee was
“top notch quality” and a “great overall teacher and person.” He said that Employee’s
certification for the course that he taught at CCHS was not set to expire until June 30, 2007.
He claimed that in order to teach without a license, Employee only needed a permit.



3
 The record indicates that these teachers received an Alternative Type II license. This type of license was
only available for those with college degrees who have not ever received a teaching license.
4
    Mr. Seale was 59 years old at the time of the trial and had a pending lawsuit against Employer.
                                                      -4-
       Mr. Seale testified that he knew of several teachers who were younger than Employee
and had been granted permission to teach without a license.5 He said that it did not “make
any sense” to terminate Employee in the middle of the year when he had been offered re-
employment for the year. He noted that after Dr. Blevins’s first or second county in-service
training, Dr. Blevins told him that she wanted to bring “younger blood, new teachers into the
system” and “get the older teachers out because of new technology and new expertise in
teaching.” He opined that she did not think “there was a place for the older experienced
teachers.”

        On cross-examination, Mr. Seale admitted that in order to obtain a permit, “that the
director and board of education must certify that the school system is unable to secure a
qualified teacher with a valid license for the type and kind of school in which a vacancy
exists.” He explained that a waiver to teach may be granted for those who have a license but
are not certified to teach in a certain area. He said that even if a teacher did not have a
license, they may be granted permission to teach through a waiver while they attempt to
obtain the license. He insisted that a bachelor’s degree was not necessary to obtain an
Interim B license because the forms did not mention the requirement of obtaining a college
degree, while the forms for the Alternative A, C, D, and E teacher’s licenses required proof
of a college degree. In any event, he said that Employee had attended several university
classes and had obtained a bachelor’s degree. He admitted that a copy of Employee’s license
information indicated that Employee did not have a college degree.

        Clayton Ray, the Director of Secondary Education, testified that he supervised
curriculum instruction for Campbell County. He stated that in order to obtain a waiver or
permit for an unlicensed teacher to teach, they must post an advertisement in the newspaper,
upload an advertisement on the Internet, and send letters to colleges and universities
requesting information regarding licensed teachers. He said that if their efforts did not
produce a licensed, certified teacher, then they could ask the commissioner to grant a waiver
or permit for the unlicensed person to teach for one year. He said that when a waiver or
permit is granted, they must certify that they have advertised the position and were unable
to find a licensed, certified teacher.

        Mr. Lee testified that prior to accepting the position at the high school, he taught a
small engine class for the special education students at LMS. He said that in his class, his
students rebuilt car engines. He related that on January 5, 2007, Ms. Ridenour approached
him and asked if he would be interested in teaching automotive technology at the high
school. He did not know whether the job had been advertised. He said that he had ASE
certification in engine repair and a valid professional teaching license but that he had to apply


5
    The details surrounding these licenses and the respective teacher’s qualifications were discussed.
                                                      -5-
for an occupational education license in order to teach the class at the high school. He stated
that because he had advanced degrees, he only had to submit paperwork in order to obtain
the license. He noted that before he could apply for the license, he had to have a job offer.

        Ms. Ridenour testified that in order to obtain an occupational education license, the
person must fill out an application after they have been hired. She said that the license is
only available to individuals who have a GED and have worked in that particular area for
five of the preceding eight years. Once they have been granted the license, they must
complete 18 hours of college courses and obtain the necessary certifications before they are
eligible for a 10-year occupational education license. She said that she could only remember
one teacher who had been granted a waiver for two years because that teacher could not pass
her registered nursing test. Relative to Employee, she noted that when he was hired, he had
to obtain the necessary ASE certifications in order to obtain the ten-year license and that he
chose to add body and fender as an endorsement on his license. She said that once he added
the endorsement, he could not remove it. She stated that she was not aware of anyone who
had let their license expire and could not obtain the necessary certifications to renew the
license. She admitted that she sent him a contract for the 2006-2007 school year but said that
the contract was dependent upon his completion of the necessary certifications for
maintaining his license.

        Relative to Mr. Lee, Ms. Ridenour said that she knew of him because she had read
about his special education engine repair class in the newspaper and because he was teaching
at the middle school. She testified that she did not believe Employer could ask for a permit
because Mr. Lee, a licensed teacher, was available to teach Employee’s courses. She claimed
that Employee’s age did not play a role in the decision and that she was not aware of his age
until after they discovered the licensing problem. She stated that Dr. Blevins never said
anything about getting rid of the older teachers and that regardless of their age, Dr. Blevins
only “wanted the best teachers for [the] school system.”

       Following the presentation of the above evidence, the trial court found that Employer
breached its contract with Employee by failing to make an effort to obtain a waiver that
would allow Employee to teach. The court further found that Employer’s failure to secure
a waiver “was clearly discriminatory against [Employee] based upon his age and that
[Employee] was terminated for no other reason.” In so finding, the court stated, “It was
obvious that the school department did not advertise in the newspapers or on the [i]nternet
and had someone picked for this job.” The court found “that the director of school’s actions
and statements amount to clear age discrimination and that he was discharged for no other
reason.”

       Employer filed a timely appeal.

                                              -6-
                                        II. ISSUES

       We consolidate and restate the issues raised by Employer as follows:

       A. Whether the trial court erred in finding that Employer had engaged in age
       discrimination.

       B. Whether the trial court erred in finding that Employer had breached its
       contract with Employee.

                             III. STANDARD OF REVIEW

       On appeal, we review the decision of a trial court sitting without a jury de novo upon
the record, accompanied by a presumption of correctness of the trial court’s findings of fact,
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v.
Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law are subject to
a de novo review with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d
42, 47 (Tenn. 2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
Mixed questions of law and fact are reviewed de novo with no presumption of correctness;
however, appellate courts have “great latitude to determine whether findings as to mixed
questions of fact and law made by the trial court are sustained by probative evidence on
appeal.” Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

                                    IV. DISCUSSION

                                             A.

         Employer contends that because Employee’s license had expired, Employee was not
qualified for the position, thereby preventing him from establishing his prima facie case of
age discrimination. Employer asserts that Employee was not eligible for a permit or an
Interim B license. Employee responds that Employer engaged in age discrimination and that
its stated reason for firing him was pretextual. Employee contends that he was qualified for
the position and that his failure to maintain his license was not a sufficient reason for his
termination. Because he maintained his certifications for the courses that he actually taught
and when Employer on his behalf, could have requested a permit for him to teach.

        “In an age discrimination suit, the ultimate issue is whether age was a determining
factor in the employer’s decision that adversely affected the employee.” Brenner v. Textron
Aerostructures, A Division of Textron Inc., 874 S.W.2d 579, 583 (Tenn. Ct. App. 1993). In

                                             -7-
order to prevail in an age discrimination suit, the employee may prove his or her case using
the direct or indirect method of proof. Wilson v. Rubin, 104 S.W.3d 39, 49 (Tenn. Ct. App.
2002). The direct method “focuses on the motivation of the employer responsible for the
contested decision” and “consists of evidence of an employer’s conduct or statements which,
if believed, requires a conclusion that unlawful discrimination was a substantial motivating
factor for the employer’s actions.” Id. The conduct or statements must be made by those
“directly involved in the decision-making process” and “must relate to the particular
employment decision being challenged.” Id.

        In order to prevail in an age discrimination suit using the indirect method of proof, the
employee must first establish a prima facie case of discrimination by proving that “(1) he was
a member of the protected class; (2) he was subjected to [an] adverse employment action; (3)
he was qualified for the position; and (4) he was replaced by a younger person,” namely
someone outside of the protected class. Brenner, 874 S.W.2d at 584 (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). In cases of age discrimination, the
protected class consists of “individuals who are at least forty (40) years of age.” Tenn. Code
Ann. § 4-21-101(b). If an employee has established a prima facie case of discrimination, the
burden of production shifts to the employer to “articulate a legitimate non-discriminatory
business reason for the challenged employment action.” Dennis v. White Way Cleaners, L.P.,
119 S.W.3d 688, 694 (Tenn. Ct. App. 2003) (citing McDonnell Douglas, 411 U.S. at 802).
Once an employer has articulated such a reason, “then the burden shifts again to the
[employee] to present some evidence that the [employer]’s reasons are pretextual.” Id.
(citing Versa v. Policy Studies, Inc., 45 S.W.3d 575 (Tenn. Ct. App. 2000)). In establishing
that the reason was pretextual, the employee may show that “the employer was more likely
than not motivated by a discriminatory reason” or that “the employer’s explanation was not
credible.” Barnes v. Goodyear Tire and Rubber Co., 48 S.W.3d 698, 708 (Tenn. 2000),
abrogated on other grounds by Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777 (Tenn.
2010).

        Here, Employee could not establish his case using the direct method of proof because
the discriminatory statements allegedly spoken by Dr. Blevins did not relate to the challenged
employment decision. Wilson, 104 S.W.3d at 49. Thus, Employee was tasked with
establishing a prima facie case of age discrimination using the indirect method of proof.
Employee was 69-years-old at the time of his termination, thereby qualifying him as a
member of the protected class. Employee was terminated and replaced by a younger person,
Mr. Lee, who was 34-years-old when he was hired. Employee was also qualified for the
position from which he was fired as evidenced by his valid ASE certifications. Other than
the fact that his license had expired and could not immediately be renewed because of his
inability to maintain an unnecessary certification, no evidence was offered that Employee



                                               -8-
was incapable of satisfactorily completing the school year as the automotive technology
instructor.

     Moreover, Employer could have sought and obtained a permit from the state for
Employee to teach.6 Indeed, the state could have easily issued a permit for Employee if
Employer had met the following requirements:

        1. A director of schools must state intent to employ and indicate the position
        to be held by the applicant.

        2. The school system must indicate that it is unable to obtain the services of a
        licensed teacher for the type and kind of school in which a vacancy exists.

        3. The school system must have posted the position, advertised in appropriate
        media; and listed the position on a state or national Internet website.

Tenn. Comp. R. & Reg. 0520-2-04-.03(4)(a). While the rules state that this type of permit
may only be awarded one time and “only if the applicant holds a bachelor’s degree,” the rule
specifically provides that “[a] bachelor’s degree is not required for an applicant in
occupational education.” Tenn. Comp. R. & Reg. 0520-2-04-.03(4)(b). Here, Employee had
never received such a permit and would have been an “applicant in occupational education.”
Employer argued at trial that Employee had received such a permit when he was initially
hired. The record belies this argument. When Employee was hired, he was initially offered
a one-year, probationary trade-shop license, not a permit. Thus, he was eligible to receive
a permit. At trial, Employer contended that they could not certify that they were unable to
secure a qualified teacher with a valid license because Mr. Lee was available. While Mr. Lee
had a valid teacher’s license, he did not have the necessary license to teach automotive
technology at CCHS. Indeed, he obtained a temporary license after he had been offered
Employee’s job. Additionally, Employer did not attempt to obtain a permit for Employee.
The testimony at trial indicated that after learning the requirements for obtaining a permit,
Employer simply fired Employee. Accordingly, we conclude that Employee established a
prima facie case of age discrimination.

      Because Employee provided a prima facie case of age discrimination, at issue here is
whether Employer’s stated reasons for the challenged employment action were pretextual.



6
 While the availability of permits, waivers, and Interim B licenses were discussed, we will not address the
distinction and availability of a waiver or an Interim B license because the availability of a permit was
evident. Additionally, Employee never applied for an Interim B license. Some witnesses testified that a
waiver and permit were the same, while other testimony indicated that the two were uniquely different.
                                                   -9-
Employer provided the following three reasons for its termination of Employee: the
expiration of Employee’s license, the possibility that students would not receive credit if
taught by an unlicensed teacher, and the possibility that its continued employment of an
unlicensed teacher could lead to the withholding of state and federal funding. Employee
argues that the reasons were pretextual as evidenced by Dr. Blevins’s statement, the fact that
waivers and permits had easily been given to younger teachers, and the fact that Employee
continued teaching even after his license had expired. Employee asserts that Employer was
attempting to replace the old teachers with newer, younger teachers and that Employer simply
took advantage of the untimely expiration of his license to fulfill its agenda.

        While Dr. Blevins’s statements concerning her desire to hire younger teachers “would
not suffice as direct evidence of discriminatory intent using the direct method of proof,”
these statements “provide a framework” for considering Employer’s actions after Employee’s
license had expired. Wilson, 104 S.W.3d at 55. Dr. Blevins was advised by Mr. Barnett that
she could apply for a permit for Employee to teach. Dr. Blevins testified that Mr. Barnett
told her that he would not approve a permit, absent her certification that they could not find
a suitable, licensed replacement after having advertised the position. We acknowledge that
Dr. Blevins found a suitable replacement in Mr. Lee; however, Mr. Lee had to apply for a
temporary license to teach the classes. Moreover, Dr. Blevins offered the position to Mr. Lee
within days of firing Employee and did not attempt to obtain a permit for Employee. Dr.
Blevins’s actions, coupled with her discriminatory statements, support the conclusion that
Employer engaged in age discrimination and that its stated reasons for firing Employee were
pretextual. Accordingly, we uphold the trial court’s finding that Employer had engaged in
age discrimination and that Employee was entitled to his lost salary.

                                              B.

       Employer contends that the trial court erred in concluding that it breached its contract
with Employee because Employee failed to meet a condition precedent of the contract when
he allowed his license to expire, thereby invalidating the contract. Employer also asserts that
the contract was invalid as a matter of law. Employee responds that the offer of employment
was not conditioned upon his maintenance of the license because Employer allowed him to
work after his license had expired. Employee contends that Employer violated the implied
contract term of the duty of good faith and fair dealing.

       The cardinal rule of contract interpretation is that the court “must attempt to ascertain
and give effect to the intent of the parties.” Christenberry v. Tipton, 160 S.W.3d 487, 494
(Tenn. 2005). In attempting to ascertain the intent of the parties, the court must examine the
language of the contract, giving each word its usual, natural, and ordinary meaning. See
Wilson v. Moore, 929 S.W.2d 367, 373 (Tenn. Ct. App. 1996). The “court’s initial task in

                                              -10-
construing a contract is to determine whether the language of the contract is ambiguous.”
Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 889-90 (Tenn. 2002).
Where the language of a contract is clear and unambiguous, its literal meaning controls the
outcome of the dispute. Planters Gin Co., 78 S.W.3d at 890. However, an employment
contract, like all contracts, “impliedly provides for good faith and fair dealing between the
parties.” Williams v. Maremont Corp., 776 S.W.2d 78, 81 (Tenn. Ct. App. 1988).

       The letter offering Employee a position at the school for the 2006-2007 year provided,

       April 12, 2006

       Dear Tenured Employee:

       On behalf of the Campbell County Schools, you are being offered re-
       employment for the 2006-2007 school year. This offer is subject to: adequate
       funding, proper certification and qualifications, program requirements, and
       student enrollment.

       Please indicate in the space provided if you accept or reject this employment
       and return to this office no later than May 1, 2006.

       Failure to hear from you will indicate that you are not interested in continued
       employment with Campbell County Schools.

(Emphasis added). Employee accepted the terms of the offer by signing the form and
returning it to Employer. This contract, in the form of the letter offer of re-employment, is
the only evidence offered at trial of a binding agreement between Employer and Employee.

       While Employee was certainly qualified to teach his courses at CCHS, he lacked the
requisite certifications in the form of a valid license to teach for the entirety of the 2006-2007
school year. Indeed, his license expired on August 31, 2006. The language of the contract
was clear and unambiguous that Employee needed to possess the proper certifications,
necessarily implying that he needed to have a valid license.

       On April 19, 2006, Employee received a fax directing him to renew his license. When
Employee failed to renew his license before the start of the 2006-2007 school year, Employee
was not prohibited from teaching. Instead, Employee was given the opportunity to renew his
license and took multiple tests to obtain the certifications necessary to fulfill the licensing
requirements. Employer spoke with Mr. Barnett on Employee’s behalf regarding the
expiration of the license but declined to seek a permit for Employee to continue teaching for

                                              -11-
the remainder of the school year. Employer did not give Employee any indication until
January 2007, when he was notified that he no longer held a position at the school, that he
could possibly lose his position for the remainder of that year.

       We must first note that Tennessee Code Annotated section 49-5-101(a) provides,

       No person shall be employed as principal, teacher, or supervisor of any public
       elementary or high school by any local school district, or receive any pay for
       such services out of the public school funds of the local school district until the
       person presents to the director of schools a valid license as prescribed in this
       part. It is unlawful for any board of education to issue any warrant or check
       to such persons for services as principal, teacher or supervisor until the person
       has presented for record a license valid for the term of employment.

(Emphasis added). However, especially concerning in this case is the fact that Employee was
unable to renew his license because he lacked one certification that was not relevant or even
necessary for the classes that Employee taught. We believe that Employer violated the
implied covenant of good faith and fair dealing implicit in every employment contract. We
acknowledge that this implied covenant may not be used to create new contractual
obligations or to alter the terms of a contract. Barnes & Robinson Co., Inc. v. OneSource
Facility Servs., Inc., 195 S.W.3d 637, 642-43 (Tenn. Ct. App. 2006) (quoting Goot v. Metro.
Gov’t of Nashville and Davidson County, No. M2003-02013-COA-R3-CV, 2005 WL
3031638, at *7 (Tenn. Ct. App. Nov. 9, 2005)). We believe, as relevant to this case, that this
covenant was applicable and should be applied given the circumstances of this case. Here,
Employee’s contract was dependant upon his maintenance of his license, and Employer had
at its disposal a possible solution to Employee’s unique licensing problem. Employer could
have attempted to obtain a permit for Employee to teach and was advised by the Assistant
Commissioner of the Tennessee Department of Education on how to obtain such a permit.
Instead, Employer promptly terminated Employee. Accordingly, we conclude that Employer
breached its contract with Employee by ignoring the implied covenant of good faith and fair
dealing.

                                     V. CONCLUSION

      The judgment of the trial court is affirmed, and the cause is remanded for such further
proceedings as may be necessary. Costs of this appeal are taxed to the appellant, Campbell
County Board of Education.




                                              -12-
______________________________________
JOHN W. McCLARTY, JUDGE




 -13-
