                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                             (Heard at Nashville)
                                    June 14, 2001 Session

         CORA B. CANTRELL, ET AL. v. KNOX COUNTY BOARD OF
                        EDUCATION, ET AL.

              Appeal by Permission from the Court of Appeals, Eastern Section
                              Circuit Court for Knox County
                         No. 2-774-93    Harold Wimberly, Judge



                     No. E1999-01557-SC-R11-CV - Filed August 23, 2001


The issue in this appeal is whether non-certified, non-tenured teacher aides have under state law a
reasonable expectation of continued employment beyond the term of their written contracts such that
they are entitled to back pay and benefits beyond the expiration of their contract period. We
conclude that teacher aides do not have a reasonable expectation of continued employment.
Accordingly, the judgment of the Court of Appeals is reversed, and the judgment of the trial court
is reinstated.

              Tenn. R. App. P. 11; Judgment of the Court of Appeals Reversed

FRANK F. DROWOTA, III, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J.,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

Michael W. Moyers, Knox County Law Director and Mary Ann Stackhouse, Deputy Law Director,
Knoxville, Tennessee, for the appellants, Knox County Board of Education and Allen Morgan,
Superintendent of the Knox County Department of Public Instruction.

Herbert S. Moncier, Knoxville, Tennessee, for the appellees, Cora B. Cantrell, Joan I. Dozier, Sandra
C. Barnard, Margaret H. Schaefer, and Mildred A. Morrell.


                                            OPINION

                                           Background
       Plaintiffs, Cora Cantrell, Joan Dozier, Sandra Barnard, Margaret Schaefer, and Mildred
Morrell, non-certified, non-tenured teacher aides, signed a written contract with the defendant, Knox
County School Board (“Board”).1 The contract was for a 200-day period – August 18, 1993 to June
2, 1994 – which covered the 1993-94 school year, with salaries ranging from $9,066 to $12,642.

        In early September 1993, the plaintiffs were advised that they would be required to attend
a training session on clean intermittent urinary catheterization.2 The plaintiffs refused to attend the
training. On September 28, 1993, individual conferences were held with the plaintiffs about their
refusal to attend, and another training session was scheduled in November to give the plaintiffs
another opportunity to learn the procedure. The plaintiffs were advised that failure to attend the
training in November would be considered insubordination and would result in the Superintendent
recommending their termination.

        Nonetheless, the plaintiffs refused to attend the training in November, and each was advised
by letter dated November 23, 1993, that the Superintendent would recommend her termination to
the Knox County Board of Education at its December 1, 1993 meeting and that the plaintiffs could
attend the hearing and oppose the Superintendent’s recommendation.

        The matter was presented to the Board at its meeting on December 1, and a record was made.
At the close of the hearing, the Board voted to terminate the plaintiffs’ contracts on grounds of
insubordination. The plaintiffs filed a petition for certiorari in the Knox County Circuit Court. After
ruling on a wide variety of claims, most of which are not at issue in this Court on appeal,3 the trial
court concluded that the Board’s decision to terminate the contracts was “arbitrary” because the
Board had a policy that did not require teacher aides to perform the catheterization procedure if the
supervising nurse or the teacher aide was uncomfortable doing so. As a remedy, the trial court
awarded the plaintiffs back pay and benefits for the remainder of their contract period, along with
pre-judgment interest at the rate of eight percent (8%) from the end of the contract period until the
entry of final judgment.

        The plaintiffs appealed. The Court of Appeals affirmed the trial court’s decision as to
arbitrariness, but the intermediate court concluded that the plaintiffs could have had an enforceable
reasonable expectation or reasonable assurance of continued employment beyond the term of their


         1
           The plaintiffs have also brought suit ag ainst Allen M organ, in his ca pacity as Sup erintenden t of the Kno x
County Department of Public Instruction. For ease of reference, the defendan ts are referred to collectively throughout
this opinion a s the Boa rd.
         2
           This proced ure is perform ed on child ren with neuro genic blad ders and in volves the inse rtion of a thin pla stic
catheter into the urethra to drain the b ladder. See Irving Independent School Dist. v. Tatro, 468 U.S. 883, 885, 104 S.
Ct. 3371, 82 L. Ed. 2d 664, 66 9 (1984).

         3
           The plaintiffs’ initial complaint raised many claims including a claim under the Education Truth in Reporting
and Employee Protection Act, a claim for retaliatory discharge, a claim under the Tennessee Human Rights Act, and a
claim that the plaintiffs would have been committing a Class B m isdemeanor offense had they complied with the Board
policy because the catheterization procedure was the practice of nursing by an unlicensed person in violation of Tenn.
Code Ann. § 63-7-120. The trial court transferred to the Chancery Court the plaintiffs’ claim under the Tennessee
Human Rights A ct, and dismissed the other claims.

                                                              -2-
contracts such that they may be entitled to back pay and benefits beyond the expiration of their
written contracts. Because the record on this issue was not developed, the Court of Appeals
remanded to the trial court for further proceedings.

        Thereafter, both the plaintiffs and the Board filed applications for permission to appeal. We
denied the plaintiffs’ application.4 However, we granted the Board’s application to determine the
correct measure of damages for non-certified, non-tenured teacher aides whose 200-day written
contracts are arbitrarily terminated by the Board before expiration of the contracts. Specifically, we
must determine whether the Court of Appeals erred in concluding that the plaintiffs may have had
an enforceable reasonable expectation or assurance of continued employment which entitles them
to back pay and benefits beyond the term of their written contracts. For the following reasons, we
conclude that non-certified, non-tenured teacher aides do not have a reasonable expectation or
assurance of continued employment beyond the term of their written contracts. Therefore the
judgment of the Court of Appeals is reversed and the judgment of the trial court is reinstated.


                                               Analysis
        We begin with fundamental employment law principles. First, we note that the employment-
at-will doctrine has been an integral part of the common law of Tennessee for more than a century.
This doctrine applies in the absence of a contract of employment, and it means that an employment
relationship generally can be terminated by either the employer or the employee with or without
cause. See Bennett v. Steiner-Liff Iron and Metal Co., 826 S.W.2d 119, 121 (Tenn. 1992).
Therefore, in Tennessee, unless there is a contract of employment for a definite term, a discharged
employee may not recover against an employer because there is no right to continued employment.
See Forrester v. Stockstill, 869 S.W.2d 328, 330 (Tenn. 1994).

        In contrast, a definite term employment contract ordinarily may not be terminated before the
expiration of the contract period, except for good cause or by mutual agreement. Bennett, 826
S.W.2d at 121. When a contract of employment is breached, the proper measure of damages is the
salary that would have been earned had the contract not been breached, less any amount the
employee earned or should have earned in the exercise of reasonable diligence in some other
employment during the unexpired contract term. See State ex rel. Chapdelaine v. Torrence, 532
S.W.2d 542, 550 (Tenn. 1975); Jeffers v. Stanley, 486 S.W.2d 737, 739 (Tenn. 1972); Akers v. J.B.
Sedberry, Inc., 286 S.W.2d, 617, 622 (Tenn. Ct. App. 1955); Godson v. MacFadden, 39 S.W.2d 287,
288 (Tenn. 1931).

        In this case, the plaintiffs had a 200-day contract of employment with the Board which was
terminated before the end of the term. The trial court found that the termination was arbitrary, and
the Board did not appeal that finding. The Board concedes that the plaintiffs were not employees-at-
will during the term of the contract, that the trial court’s finding of arbitrary contract termination


        4
          Plaintiffs raised the following issue: Whether the teacher aides have a cause of action under the Education
Truth in Reporting and Employee Protection Act of 1989?

                                                        -3-
amounts to a finding that the Board breached the contract, and that the finding of breach entitles the
plaintiffs to an award of damages. The Board argues that the trial court correctly limited the damage
award to back pay and benefits for the unexpired term of the plaintiffs’ contracts. We agree.

        The purpose of assessing damages in breach of contract cases is to place the plaintiff
        as nearly as possible in the same position she would have been in had the contract
        been performed, but the nonbreaching party is not to be put in any better position by
        recovery of damages for the breach of the contract than he would have been if the
        contract had been fully performed.

Lamons v. Chamberlain, 909 S.W.2d 795, 801 (Tenn. Ct. App.1993) (emphasis added). Were we
to uphold an award of damages beyond the term of these contracts, these plaintiffs would be placed
in a better position than they would have been in had the contracts been fully performed. This is true
because there are no Tennessee statutes which afford non-certified, non-tenured teacher aides a
reasonable expectation or assurance of continued employment beyond the term of their written
contracts. But for the definite term contracts, these plaintiffs would have been at-will employees.
It therefore follows that the plaintiffs had no reasonable expectation of continued employment
beyond the term of their contracts.

         As the Board points out, teacher aides are not eligible for attainment of tenure under the
Teacher Tenure Act. See Tenn. Code Ann. § 49-5-501(10) (listing “teachers, supervisors, principals,
superintendents and all other certificated personnel” as tenure positions). Cf. Moore v. Board of
Education of Johnson City Schools, 134 F.3d 781, 786 (6th Cir. 1998) (holding that time during
which teacher was previously employed as teacher aide did not count toward calculation of
probationary period required to establish permanent tenure under Tennessee Teacher Tenure Act).
In fact, both the 1990 and the 1996 statutes provide that teacher aides may only be employed in non-
teaching positions and that teacher aides are subject to the supervision of certificated teachers. See
Tenn. Code Ann. § 49-2-203(a)(1)(B)&(C) (1996); Tenn. Code Ann. § 49-2-203(a)(1)(B) & (C)
(1990). These statutes clearly indicate that teacher aides do not perform the same functions as
teachers and are not afforded tenure as teachers.

        Moreover, the Knox County Charter (“Charter”) upon which the plaintiffs rely does not
afford them tenure or civil service protection. The Charter states that “teachers, supervisors of
instruction, clerks and secretaries” employed by the Board may attain tenure. Conspicuously absent
from the Charter’s list of tenured positions is teacher aides. The plaintiffs argue that this provision
should be interpreted to afford tenure to teacher aides because they perform functions and have
responsibilities similar to the functions and responsibilities of the positions specifically listed in the
Charter provision. We cannot agree. As previously stated, state statutes mandate that teacher aides
be employed only in non-teaching positions and be subject to the supervision of certificated
teachers. We decline to interpret the Charter in a manner that would conflict with state law.




                                                   -4-
       Also without merit is the plaintiffs’ argument that Tenn. Code Ann. §§ 49-2-203(a)(7) affords
them civil service protection and a concomitant reasonable expectation of continued employment.
The statute provides as follows:

         It is the duty of the local board of education to: [e]xcept as otherwise provided in this
         title, dismiss teachers, principals, supervisors, and other employees, upon sufficient
         proof of improper conduct, inefficient service, or neglect of duty; provided, that no
         one shall be dismissed without first having been given in writing due notice of the
         charge or charges and an opportunity for defense. . . .

According to the plaintiffs, this statute contemplates that no employee be dismissed except for cause
and that every employee be given pre-termination due process. Consequently, the plaintiffs argue,
teacher aides are not employees-at-will and therefore are entitled to back pay and benefits beyond
the one-year contract term. We disagree. As the Board correctly points out, this statute sets forth
the grounds that are considered good cause for contract termination or dismissal and the process to
which an employee is entitled before contract termination or dismissal. The plaintiffs have never
contended that they were denied the pre-termination notice and opportunity for defense which the
statute contemplates. In addition, the plaintiffs have prevailed on their claim that good cause for
terminating their contracts did not exist, and as the Board concedes, the plaintiffs clearly are entitled
to damages for that breach. Therefore, these plaintiffs have been afforded all the benefits provided
by this statute. This statutory provision simply does not give rise to a reasonable expectation of
employment beyond the contract period.5 It simply delineates the plaintiffs’ rights during the
contract period.

        The plaintiffs also argue that their one-year contracts with the Board were ultra vires and
void. Again, we disagree. Both parties agree that Tenn. Code Ann. § 49-3-301(f)(32), requiring that
persons employed in a position for which no teaching license is required be hired on a year-to-year
contract, did not become effective in Knox County until 1996, three years after the events in this case
occurred.6 However, in our view, this fact has no bearing on the resolution of this appeal. The
plaintiffs have not pointed to a statute prohibiting the Board from entering into year-to-year contracts


         5
           In their supp lemental brie f, the plaintiffs also relied upon Tenn. Code Ann. § 49-2-301(f)(33)(1996), which
provides that “[t]he superintendent may dismiss any employee under the superintendent’s jurisdiction for incompetence,
inefficiency, insubordination, improper conduct or neglect of duty; provided, that no o ne shall be dismissed without first
having been given in writing, due no tice of the charge or charges and an opportunity for defense.” However, for the
reasons explained in footnote 6, this statute was no t effective in Kno x County wh en the events g iving rise to this appeal
occurred and has no bearing on this case. H owever, even if this statute had been effective, the analysis applied and
conclusion reached with respect to Tenn. Code Ann. § 49-2-203(a)(7) would have applied with equal force to this statute.


         6
           As the plaintiffs assert, subsection 32 was added to this statutory scheme by Section 13(2) of Chapter 535 of
the 1992 Public Acts. Section 90 of Chapter 535 suspended the effective date of Sections 6 through 26 of Chapter 535
“until such time as the superintendent is appointed by the local B oard of E ducation,” 1992 P ublic Acts 5 35, § 90 . The
parties to this appeal stipulated that the Knox County Board of Education appo inted a superintendent in June of 1996.
Therefo re, subsectio n 32 did n ot becom e effective in K nox Cou nty until 1996 .

                                                            -5-
with teacher aides. The absence of a statute authorizing year-to-year contracts does not mean that
such contracts were prohibited. There simply was no statute specifically addressing the issue.
However, year-to-year contracts were consistent with applicable law. The State allocated funds to
boards of education on an annual basis, and the State’s decision as to how many teacher aides would
be funded annually was based upon attendance within the school district during the first three months
of the preceding academic year. See Tenn. Code Ann. § 49-3-306 (1990). This statute would seem
to preclude long-term contracts. Moreover, another statute required local boards of education to
elect and assign school personnel for the next academic year on or before May 15 of the current
academic year. See Tenn. Code Ann. § 49-5-401(a)(1990). Given the annual funding provision and
the deadline for advising school personnel whether they would be hired for the next school year,
year-to-year contracts clearly were consistent with the statutory scheme.

       Also without merit is the plaintiffs’ contention that the Knox County Schools Handbook
(“Handbook”) gave rise to a reasonable expectation of continued employment. As support for their
argument, the plaintiffs rely upon Handbook Section 5004.11, which is titled, “Evaluation of
personnel in non-tenurable positions.” This Section states:

       The principal/supervisor shall submit a list of recommended employees for re-
       employment by June 15 of each year. The recommendation shall be based on an
       evaluation of the employee involved. A newly hired employee will be evaluated
       three times within a five-year span and then once every five years for the remainder
       of his/her employment. However, the principal/supervisor and/or the employee may
       request an evaluation in any given year.

The plaintiffs argue that this Section contemplates continuing employment because it delineates the
number of evaluations that are to be conducted over a five-year period. We disagree. In our view,
this Section does not entitle a person in a non-tenurable position to five years of continued
employment. It simply delineates the number of evaluations that are to be conducted if the same
person is employed in a non-tenurable position for a five-year period.

       As the Board points out, other portions of the Handbook clearly lead to the conclusion that
teacher aides are not afforded tenure or a reasonable expectation of continued employment. First,
5001.02 provides that only clerks and secretaries enjoy the rights established in the Private Tenure
Act of Knox County Schools. Next, Section 5004.02 provides:

       Appointments are made annually except for those persons (clerks and secretaries)
       who have attained tenure. Contracts will be given to each employee, except food
       services, custodial, and maintenance personnel, indicating the number of days of
       employment as established by the Board. The Board will give a thirty-day notice to
       the employee if the services are to be terminated. The employee is expected to give
       a thirty-day notice to the Board prior to termination. Mutual agreement of a
       termination date can shorten or eliminate this period.



                                                -6-
(Emphasis added.) The Handbook further provides at Section 5004.07(1) that “Knox County
personnel who do not attain tenure status may be dismissed by the Board of Education when their
services are not satisfactory or when services are no longer required.”

         Since teacher aides do not attain tenure, they may be dismissed if their services are not
satisfactory or if their services are no longer required, so long as the Board gives thirty days notice.
In this case, the plaintiffs were advised on September 23, 1993, that their failure to attend the training
session in November would result in a recommendation of contract termination. The plaintiffs
therefore were afforded all the rights to which they are entitled by the Handbook, including thirty
days notice.

        Finally, the plaintiffs’ reliance upon Cannon v. Traughber, 1990 WL 83396 (Tenn. Ct. App.
1990) is misplaced. The issue in that case was whether the teacher aides had a “reasonable
assurance” of continued employment for purposes of unemployment compensation eligibility. The
United States Department of Labor had issued a letter to all state employment agencies defining the
phrase “reasonable assurance” for purposes of unemployment compensation eligibility. The Court
of Appeals in Cannon was applying the definition provided by the Labor Department. While teacher
aides may have a reasonable assurance of continued employment under Labor Department
definitions such that they are ineligible for unemployment compensation benefits, this does not mean
that they also have a reasonable expectation of employment which entitles them to back pay beyond
the term of their contracts. Cannon is wholly inapplicable where the issue is the proper measure of
damages for breach of an employment contract. As previously stated, the proper measure of
damages for breach of an employment contract is the salary that would have been earned had the
contract been performed, less any amount the employee earned or should have earned in the exercise
of reasonable diligence in some other employment during the unexpired contract term. See, e.g.,
Torrence, 532 S.W.2d at 550. The trial court correctly applied this measure when awarding the
plaintiffs in this case damages.


                                            Conclusion
       Having concluded that the plaintiffs did not have a reasonable expectation of continued
employment beyond their contract term, the judgment of the Court of Appeals is reversed. The
judgment of the trial court is reinstated. Costs of this appeal are taxed to the plaintiffs, for which
execution may issue if necessary.




                                                _________________________________
                                                FRANK F. DROWOTA, III, JUSTICE



                                                   -7-
