       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE

                                           FILED
DONNA WILLIS and the           )             July 15, 1998
FRANKLIN COUNTY                )
EDUCATION ASSOCIATION,         )          Cecil W. Crowson
                                         Appellate Court Clerk
                               )
      Plaintiffs/Appellants,   )    Franklin Chancery
                               )    No. 13,920
VS.                            )
                               )    Appeal No.
FRANKLIN COUNTY BOARD          )    01A01-9606-CH-00266
OF EDUCATION and               )
PATTY PRIEST, Superintendent   )
of Franklin County Schools,    )
                               )
      Defendants/Appellees.    )




      APPEAL FROM THE FRANKLIN COUNTY CHANCERY COURT
                 AT WINCHESTER, TENNESSEE

                THE HONORABLE JOHN W. ROLLINS, JUDGE



For Plaintiffs/Appellants:          For Defendants/Appellees:

Charles Hampton White               Robert G. Wheeler, Jr.
Richard L. Colbert                  Charles W. Cagle
Cornelius & Collins                 Lewis, King, Krieg, Waldrop & Catron
Nashville, Tennessee                Nashville, Tennessee




                   AFFIRMED AND REMANDED




                                    WILLIAM C. KOCH, JR., JUDGE
                                     OPINION


       This appeal involves a public school employee’s employment rights under a
contract between the Franklin County Board of Education and the Franklin County
Education Association. After accepting a lower paying teaching position when her
central office job was abolished, the employee and her union filed suit in the
Chancery Court for Franklin County alleging that the school superintendent and the
school board had breached the contract. The trial court, sitting without a jury, held
that the school superintendent and the school board had not breached the contract and
had not acted arbitrarily or improperly by offering the employee a teaching position.
We affirm the trial court’s judgment because we have determined that the
reemployment rights available to laid off employees do not apply to employees
whose positions have been abolished, and that the evidence does not show that the
school superintendent or the school board acted improperly.


                                               I.


       Donna Willis has been employed by the Franklin County Board of Education
for over twenty years. She first taught high school business courses for three years.
By 1992, she had served as Elementary Supervisor of Instruction for over twenty
years and Chapter I Director for eleven years. She had also worked as Federal
Programs Director and Child Nutrition Supervisor. She was the senior employee in
the central office and had attained the highest available career level certification for
supervisors.1 Ms. Willis never received a complaint about her work during her tenure
as a teacher or administrator.


       In May 1992, Patty Priest, the Superintendent of Schools for Franklin County,
decided to reorganize the central office in response to the recently enacted Education
Improvement Act2 and because she believed that the existing organization was
disjointed and illogical. Her reorganization plan called for the abolition of four


       1
       Ms. Willis had been designated as a career level III supervisor under the career ladder
program whose purpose is to reward outstanding teachers, principals, and supervisors with pay
supplements and additional responsibilities. See Tenn. Code Ann. § 49-5-5002 (b)(1) (1996).
       2
       See Act of Mar. 2, 1992, ch. 535, § 4, 1992 Tenn. Pub. Acts 19, 23 (codified at Tenn. Code
Ann. §§ 49-1-601, -608 & 610 (1996)).

                                              -2-
central office supervisory positions,3 including Ms. Willis’s position, and the creation
of four new positions.4 The new positions combined some of the functions and
responsibilities of the old positions with some new responsibilities. On May 13,
1992, Ms. Priest informed Ms. Willis and the other incumbents in the positions to be
abolished of her plans, and on May 14, 1992, the Franklin County Board of Education
accepted Ms. Priest’s reorganization plan.


       Ms. Willis applied for all of the newly created positions but was the only
employee of the four employees whose positions had been abolished who was not
offered one of the new positions. Ms. Priest hired the new Director of Accountability
herself and then appointed a nine-person committee5 to interview the applicants for
the remaining three positions. The committee interviewed Ms. Willis and the other
applicants for each central office job using the same questions and objective rating
scale. Ms. Willis’s scores placed her at the bottom of the list of applicants for each
position. The committee recommended the person with the highest score for each of
the three remaining newly created positions. Ms. Priest concurred with these
recommendations, which were approved by the Franklin County Board of Education.


       After Ms. Willis was not offered one of the newly created central office
positions, Ms. Priest offered her two different teaching positions. Ms. Willis
accepted one of the positions even though its salary was approximately $7,000 per
year less than her previous salary. Ms. Willis also requested a hearing before the
Franklin County Board of Education. Following a hearing, the school board
approved Ms. Willis’s transfer to Oak Grove Elementary School.


       On December 7, 1992, Ms. Willis and the Franklin County Education
Association filed a grievance because she was not offered one of the newly created
central office positions. Following an arbitration hearing in April and May 1993, the


       3
        The positions to be abolished included the Adult Basic Education Level I Coordinator – part
time, the Elementary Supervisor of Instruction, the Secondary Supervisor of Instruction, and the
Teacher/Center Director.
       4
        The four new positions to be created included the Director of Accountability, At-Risk
Intervention Coordinator, Curriculum and Instruction Supervisor, and Full-Time Adult Basic
Education Supervisor.
       5
        The committee consisted of the newly hired Director of Accountability, a parent, the
Franklin High School student body president, a guidance counselor, three teachers, and two
principals.

                                               -3-
arbitrator sustained the grievance and found that “proper procedures were not
followed and there was a violation of Due Process, Fair Treatment and Proper Cause
by the Board.” The arbitrator recommended that Ms. Willis be named Director of
Accountability and that she receive $8,062 in back pay. The Franklin County Board
of Education rejected the arbitrator’s recommendations.


      On October 18, 1993, Ms. Willis and the Franklin County Education
Association filed suit in the Chancery Court for Franklin County against Ms. Priest
and the Franklin County Board of Education. The complaint alleged several
violations of the contract between the Franklin County Board of Education and the
Franklin County Education Association, including (1) reducing Ms. Willis’s rank and
compensation and depriving her of a professional advantage without just cause, (2)
failing to notify either the association or Ms. Willis of the newly created positions
within the contract’s specified time period, and (3) denying Ms. Willis her seniority
right of recall and placement.


      The trial court conducted a bench trial and determined that the arbitrator’s
findings were not binding and that neither the school board nor the school
superintendent had breached the contract. The trial court also held that the “due
process” provisions in the contract did not apply to Ms. Willis because her position
had been abolished and, similarly, that the layoff provision in the contract did not
apply to Ms. Willis because she had not been laid off. As a final matter, the trial
court also held that there was no proof that either Ms. Priest or the Franklin County
Board of Education had acted arbitrarily, capriciously, or unreasonably in abolishing
the old positions.


                                         II.
                        CLAIMS BASED ON THE CONTRACT


      Ms. Willis and the Franklin County Education Association take issue with the
trial court’s interpretation of the contract. They insist that the contract’s “due
process” provisions apply to Ms. Willis because she was reduced in rank and
compensation. They also insist that the trial court erred by holding that Ms. Willis’s
seniority “reemployment” rights had not been violated when she was not notified of




                                         -4-
the newly created positions and was not placed in one of the new positions based on
her seniority.


                                                  A.


        It is elementary that whatever contract rights Ms. Willis has can only arise from
the memorandum of agreement between the Franklin County Board of Education and
the Franklin County Education Association. See Hillsboro Plaza Enters. v. Moon,
860 S.W.2d 45, 47 (Tenn. Ct. App. 1993) (holding that the rights and obligations of
contracting parties are governed by the terms of their written agreement). Our
responsibility, when called upon to construe a contract, is to ascertain and to give the
fullest possible effect to the intentions of the contracting parties. See Bob Pearsall
Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975);
Breeding v. Shackelford, 888 S.W.2d 770, 775 (Tenn. Ct. App. 1994).


           Because the parties’ intentions must be reflected in the text of their written
contract, we construe written contracts as a whole, see Cocke County Bd. of Highway
Comm’rs v. Newport Utils. Bd., 690 S.W.2d 231, 237 (Tenn. 1985), and we consider
each provision in the context of the entire agreement. See Wilson v. Moore, 929
S.W.2d 367, 373 (Tenn. Ct. App. 1996). We also give the contract’s language its
plain, natural, and ordinary meaning, see Hardeman County Bank v. Stallings, 917
S.W.2d 695, 699 (Tenn. Ct. App. 1995), and we avoid strained interpretations that
create ambiguities where none exist. See Farmers-Peoples Bank v. Clemmer, 519
S.W.2d 801, 805 (Tenn. 1975).


                                                  B.
                                     THE LAYOFF CLAIMS


        Ms. Willis insists that Ms. Priest and the Franklin County Board of Education
did not abide by the terms of the contract governing laid off employees. Specifically,
she asserts that Ms. Priest did not provide her with fifteen days notice of the proposed
layoff as required by Article XII(B)6 of the contract and that she was not given recall


       6
         Article XII(B) of the contract requires that “[t]he Administration shall provide written notice
to the Association and to each teacher who may possibly be affected by the layoff no later than 15
working days preceding the proposed layoff or as soon as possible. Such notice shall include
specific written reasons for the proposed layoff.”

                                                  -5-
rights to the newly created central office positions as required by Article XII(C)7 of
the contract. In order to be entitled to these rights, Ms. Willis must first demonstrate
that she is a laid off employee under the facts of this case.


      The contract does not define the terms “layoff” or “laid off teacher;” however,
the meaning of the term “layoff” is the same both in everyday usage and in the labor-
management context. In its common sense, a “layoff” is a period during which a
worker is temporarily dismissed or allowed to leave work. See 8 The Oxford English
Dictionary 736 (2d ed. 1989). In the labor-management context, it connotes a period
of temporary dismissal with the anticipation of recall. See Fishgold v. Sullivan
Drydock & Repair Corp., 328 U.S. 278, 287 n.11, 66 S. Ct. 1105, 1112 n.11 (1946);
CBS, Inc. v. International Photographers of Motion Picture Indus., Local 644, 603
F.2d 1061, 1063 (2d Cir. 1979); Mayo v. City of Sarasota, 503 So. 2d 347, 349 (Fla.
Dist. Ct. App. 1987); Formisano v. Blue Cross of Rhode Island, 478 A.2d 167, 169
(R.I. 1984). The term is not ambiguous, see Anderson v. Twin City Rapid Transit
Co., 84 N.W.2d 593, 597-98 (Minn. 1957), and is clearly distinguishable from a job
abolishment which is a permanent elimination of a particular position. See Smith v.
California Unemployment Ins. App. Bd., 125 Cal. Rptr. 35, 40 (Ct. App. 1975)
(construing the state Civil Service Act); General Motors Corp. v. Erves, 236 N.W.2d
432, 437 (Mich. 1975); In re Moreo, 468 N.E.2d 85, 88 (Ohio Ct. App. 1983).


      Under the facts of this case, Ms. Willis was never laid off. Her central office
position was permanently abolished. She was never told that she could expect to be
recalled to her former position. She worked continuously until June 30, 1992, and
by that time she had already accepted a teaching position for the next school year.
She never missed a paycheck. Because Ms Willis’s central office position was
permanently abolished, she was not entitled to the rights accorded to laid off
employees in Article XII of the contract.




      7
          Article XII(C) provides:

      1.        As vacancies arise a laid-off teacher will be recalled to the first available
                vacancy for which the teacher is certified with the senior teacher being
                recalled for such vacancy first.
      2.        No new or substitute appointments may be made while there are laid off
                tenured teachers available who are qualified to fill the vacancies.
      3.        Any teacher re-employed by exercising his/her recall rights shall be given full
                salary and related benefits.

                                                 -6-
                                              C.
                                 THE JUST CAUSE CLAIM


       Ms. Willis also asserts that she could not be removed from her central office
position without just cause. She bases her argument on Article XXII(C)(1) of the
contract which provides:
              No professional employee shall be discharged, transferred,
              non-renewed, suspended, disciplined, reprimanded,
              adversely evaluated, reduced in rank or compensation or
              deprived of any professional advantage without just cause.

By its own terms, this provision applies to disciplinary actions in which an employee
is discharged, transferred, non-renewed, suspended, disciplined, reprimanded,
adversely evaluated, reduced in rank or compensation, or deprived of any
professional advantage.


       Ms. Willis was not disciplined. Her central office position was permanently
abolished not because of her performance but because of the superintendent’s and the
school board’s desire to be more efficient and to be better able to meet the
performance standards contained in the Education Improvement Act. She was not
reduced in rank or compensation for disciplinary reasons. These reductions came
about because her former central office position was permanently abolished and
because the only other available positions were teaching positions that paid less.


                                              III.
             CLAIMS BASED ON STATUTORY REEMPLOYMENT RIGHTS


       We determined in the previous section that neither Ms. Priest nor the Franklin
County Board of Education ignored Ms. Willis’s contract rights because the contract
did not address the rights of employees who are dismissed because of the elimination
of their positions. One reason for the contract’s silence on this subject may very well
be that it has been addressed by statute. Tenn. Code Ann. § 49-5-511(b)(3) (1996)
requires that tenured teachers8 who are dismissed because of the elimination of their
position be put on a “preferred list for reemployment” and that they be placed “in the


       8
        A supervisor is a “teacher” for the purpose of this section. See Tenn. Code Ann. § 49-5-
501(10) (1996).

                                              -7-
first vacancy the teacher is qualified by training and experience to fill.” Ms. Willis
insists that the school superintendent and school board ignored her reemployment
rights under this statute.


      Ms. Willis overstates her rights under Tenn. Code Ann. § 49-5-511(b)(3). This
section does not prevent the superintendent or the school board from determining a
laid off teacher’s competency, compatibility, and suitability for a particular position.
See Randall v. Hankins, 733 S.W.2d 871, 874 (Tenn. 1987). The statute does not
require automatic reinstatement but rather preferential consideration once a teacher
shows the requisite qualifications for the vacant position. See Randall v. Hankins,
733 S.W.2d at 875; Long v. Carey, Gibson Eq. No. 3, 1990 WL 125541, at *3-4
(Tenn. Ct. App. Aug. 31, 1990); pet. rehearing denied, 1990 WL 151207 (Tenn. Ct.
App. Oct. 11, 1990), perm. app. denied (Tenn. Dec. 3, 1990).


      The record contains substantial evidence that Ms. Willis was considered for all
the available positions she was qualified to hold. She applied for the four new central
office positions and was interviewed by a diverse committee for three of the
positions. She was not offered the Director of Accountability position because she
lacked experience as a principal and because Ms. Priest believed that she did not
exhibit the initiative required for the position. She was not offered any of the
remaining three central office positions because the screening committee rated her
qualifications lower than any of the other applicants. After Ms. Willis was not
offered one of the new central office positions, Ms. Priest notified her of two
available teaching positions for which she was qualified, and Ms. Willis accepted one
of these positions.


      Teachers are entitled to be protected from arbitrary or capricious actions and
transfers “actuated by political or other improper motives.” McKenna v. Sumner
County Bd. of Educ., 574 S.W.2d 527, 534 (Tenn. 1978); Springer v. Williamson
County Bd. of Educ., 906 S.W.2d 924, 926 (Tenn. Ct. App. 1995). Even so,
personnel actions based on valid programmatic considerations are not invalid simply
because part of the motivation may have been political. See Springer v. Williamson
County Bd. of Educ., 906 S.W.2d at 926. Although Ms. Willis contends that the
abolition of her position was politically motivated, there are sufficient, demonstrable




                                          -8-
grounds supporting Ms. Priest’s and the board’s decisions to abolish her position and
to place her in a teaching position.


      Ms. Willis worked for Ms. Priest for five years prior to the reorganization.
There was no evidence that during this time there were any problems or complaints
about their working relationship or that Ms. Priest wanted to fire her. Ms. Willis was
given a fair opportunity for every one of the new positions.          The testimony
established that, in response to legislative mandates requiring accountability, the
Board and Ms. Priest chose to overhaul the central office. Their actions can in no
way be characterized as arbitrary or capricious.


                                         IV.


      We affirm the judgment and remand the case to the trial court for whatever
further proceedings may be required. We tax the costs of this appeal, jointly and
severally, to Donna Willis and the Franklin County Education Association for which
execution, if necessary, may issue.


                                               ______________________________
                                               WILLIAM C. KOCH, JR., JUDGE
CONCUR:


__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



__________________________________
SAMUEL L. LEWIS, JUDGE




                                         -9-
