                                                                                                      04/01/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                   February 13, 2019 Session

              EDWARD HARPER v. SHELBY COUNTY SCHOOLS

                   Appeal from the Chancery Court for Shelby County
                    No. CH-13-1820 JoeDae L. Jenkins, Chancellor
                        ___________________________________

                              No. W2018-01100-COA-R3-CV
                          ___________________________________

This is a case arising out of the Teacher Tenure Act. A tenured middle school teacher
sought review of a decision of the board of education upholding his termination for
inefficiency, incompetence, and neglect of duty. The chancery court affirmed the board’s
decision, sustaining the teacher’s termination. Teacher appealed to this Court. We
reverse the chancery court’s findings with respect to neglect of duty. However, we affirm
the chancery court’s findings with respect to inefficiency and incompetence, and thereby
affirm the teacher’s termination.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
                     in Part, Affirmed in Part, and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Laura E. Smittick and Darrell J. O’Neal, Memphis, Tennessee, for the appellant, Edward
Harper.

Yasmin A. Mohammad, Memphis, Tennessee, for the appellee, Shelby County Board of
Education.

                                             OPINION

                         BACKGROUND AND PROCEDURAL HISTORY

      Edward Harper was a licensed, full-time teacher with Memphis City Schools—
now Shelby County Schools, which, since August 19, 1996, is governed by the Shelby
County Board of Education (“SCBE”).1 In July 1999, Mr. Harper was granted tenure.
        1
         As a result of the Memphis City School’s decision to surrender its charter in 2011, the Memphis
City School System merged with the Shelby County School System, effective July 1, 2013.
During his tenure, Mr. Harper was administratively transferred to and from various
schools, including Riverview Junior High School, Longview Middle School, Treadwell
High School, A. Maceo Walker Middle School, and Cypress Middle School.

       SCBE evaluated its teachers with respect to what it refers to as six “domain” areas:
Domain I: Planning Indicators; Domain II: Teaching Strategies Indicators; Domain III:
Assessment and Evaluation Indicators; Domain IV: Learning Environment Indicators;
Domain V: Professional Growth Indicators; and Domain VI: Communication Indicators.
Further, the specific scoring standards that accompanied the domain areas are as
indicated in the following chart:

               .                                  ..._.Comprehensive Assessment Process                                                                      1
                                                                                                        A Domain 6 Identified as
                                                                                                      'lc/aired Area to Strengthen"
   Current Status                               Standard for Advancement                                                if
                                                                                                      Thca IS AN 1.44,013(Artakr SATTP.113 IN AT             1
                                                                                                                      LiEAST 4 LICACATOS                 .

                                                                                                                              at
                                                                                                          P.       AN Iftdicalara in Laid A ar le
                                                                                                                   OA 441.00) beriaar Leval A is a
   CAM SECOND YEAR                   Na rei:FrE dud 2 derneist tee identilatd as'Required A.reu
                                                                                                                   denuie within Dorriaiii bry
  efermiTiCITUCSIED                  Oa Strtngthen"
                                                                                                           Ya.     AA ladikaaaria) be law Level A it a
                                                                                                                   drirrllin in   1:10.6..r&vj           _
 Third Ytar                                          Prat' setoesi Lieente Ilion no met
                                     AtiTIVICICIIINnl 16                                          1
 A frpx nu c c)A dva_nr Erntal   .   than 2 domain! ikeiifind me "Rzuvired Areas 40                        Ye.     An kblicobai(e)itlee Lard 8
 1 U i rroirmictrua License          Srrerkedire                                                         __
                                     Na marc thin I ddroglifl be idcntified
                                                                                                              >    eu intik:Immo neve Lard IS
 Pearmiir.Lnal 'License
                                                                              u e"Required Area
                                     in Stiengthen'                                                           3'   A &min in =Fifth re fed icwiris FL
                                                                                                                   Lewd C



Accordingly, if a teacher held a professional license—as Mr. Harper did at the time of
each of the evaluations at issue in this case—then in order to be deemed “satisfactory,”
that teacher could not have more than one domain marked as required to be strengthened;
if more than one domain was so marked, then that teacher’s performance should be
deemed “unsatisfactory.”

       During the 2007-2008 school year, Mr. Harper taught at Treadwell High School.
Principal Clementine Poole conducted Mr. Harper’s evaluation and identified three
domain areas that he was required to strengthen: Domain I; Domain IV; and Domain V.
Additionally, Mr. Harper’s 2007-2008 evaluation indicates that he was tardy 42 times and
that he accumulated 6 absences during the school year. According to the Hearing
Officer, Mr. Harper’s 42 incidents of tardiness accounted for more than 25% of the
school days for the 2007-2008 school year. Despite identifying three domain areas in
which he was deficient, Ms. Poole nevertheless marked Mr. Harper’s evaluation score as
“Satisfactory.” In an apparent attempt to justify her evaluation, Ms. Poole added the
following comment at the end of the evaluation: “Although this educator should only
have 1 Domain to strengthen, we deem it essential for him to work on more. In


                                                                          -2-
addition[,] we have changed the Domains as instructed by the district, but we evaluated
as we saw it.”

        During the 2008-2009 school year, Mr. Harper was still teaching at Treadwell
High School. Administrator Ronnie Vasser conducted Mr. Harper’s evaluation for that
school year and identified three domains that he was required to strengthen: Domain I;
Domain III; and Domain IV—two of which had been identified the previous year.
Despite identifying three domain areas, Mr. Vasser recommended Mr. Harper for re-
election2 and marked his evaluation score as “Satisfactory.” Additionally, the evaluation
reflects that Mr. Harper was tardy 91 times—more than 50% of the school days for the
2008-2009 school year.

       Following the 2008-2009 school year, Mr. Harper transferred to A. Maceo Walker
Middle School. During the 2009-2010 school year, Principal Tonye McBride observed
Mr. Harper’s classroom on numerous occasions and noted that he had significant
classroom management issues. Specifically, she observed students talking, playing,
joking, throwing materials, and not paying attention during Mr. Harper’s class.3 To assist
Mr. Harper with his classroom management issues, Principal McBride required Mr.
Harper to give a professional development presentation on classroom management to
other teachers during an October 2009 in-service training session. Mr. Harper gave the
presentation, but, according to Principal McBride, as well as other administrators and
teachers, his classroom management issues persisted. In October or November of 2009,
Mr. Harper took sick leave and thereafter missed the remainder of the 2009-2010 school
year. Although there were issues regarding whether Mr. Harper timely submitted his
leave-extension paperwork, SCBE ultimately approved Mr. Harper’s sick leave.

       Mr. Harper transferred schools again for the 2010-2011 school year. Upon the
recommendation of Gina Nicholson, the principal of Cypress Middle School, SCBE hired
Mr. Harper to teach eighth grade at her school. Principal Nicholson observed Mr.
Harper’s classroom on numerous occasions, and she, like Principal McBride at A. Maceo
Walker Middle School, noted that Mr. Harper had significant classroom management
issues.4 Principal Nicholson conducted Mr. Harper’s evaluation and identified one
domain area to strengthen and marked Mr. Harper’s evaluation score as “Satisfactory.”
In order to provide support to Mr. Harper regarding his classroom management issues,
Principal Nicholson decided to transfer Mr. Harper from the eighth grade to the sixth
grade for the following school year.


        2
           “Re-election” is a term of art used on SCBE’s evaluation forms.
        3
           Principal McBride also observed that Mr. Harper’s teaching style—lecture-based—was non-
engaging to middle school students, which, in her opinion, created some of the classroom management
issues.
         4
           Specifically, Principal Nicholson observed that Mr. Harper had no control in the classroom and
that the students would not respect him.
                                                  -3-
       As a sixth grade teacher at Cypress Middle School, Mr. Harper’s classroom
management issues persisted. During the 2011-2012 school year, Principal Nicholson
and Assistant Principal Antonio Ryan conducted informal “drop-ins” on Mr. Harper’s
classroom one to three times a week.5 Mr. Ryan testified that, during these drop-ins, he
observed behavior such as students exiting the classroom without permission, yelling at
other students, and walking across the desks. In addition to the informal drop-ins,
Principal Nicholson and Mr. Ryan separately conducted a total of four formal
observations—two announced and two unannounced—of Mr. Harper’s classroom, during
which they completed Observation Summary reports. In these reports, Mr. Harper was
rated on 11 different indicators, such as his explaining the content to his students,
checking for students’ understanding of the content, and cultivating a learning
environment.6 Principal Nicholson conducted the two announced observations, the first
on October 31, 2011 and the second on February 17, 2012. On the October 31, 2011
Observation Summary Report, Mr. Harper was rated “Meeting Expectations” on 2 of the
11 indicators and “Below Expectations” on the other nine. On the February 17, 2012
Observation Summary Report, he was rated “Below Expectations” on 7 of the 11
indicators and “Significantly Below Expectations” on the other four. Mr. Ryan
conducted the two unannounced observations, the first on January 1, 2012 and the second
on March 6, 2012. On the January 1, 2012 Observation Summary Report, Mr. Harper
was rated “Below Expectations” on 8 of the 11 indicators and “Significantly Below
Expectations” on the other three. On the March 6, 2012 Observation Summary Report,
he was rated “Below Expectations” on 5 of the 11 indicators and “Significantly Below
Expectations” on the other six. Following each formal observation, Principal Nicholson
or Mr. Ryan—whoever conducted the observation—met with Mr. Harper to jointly
complete a post-observation report, the purpose of which was to detail areas of growth
and list additional considerations for Mr. Harper. Principal Nicholson and Mr. Ryan
completed their post-observation reports with Mr. Harper on November 4, 2011 and
February 24, 2012, and January 13, 2012 and April 3, 2012, respectively.

       On June 20, 2012, Mr. Harper was notified that tenure charges would be brought
against him and that a recommendation of dismissal would be submitted to SCBE
pursuant to the Tennessee Teacher Tenure Act (the “Tenure Act”), codified at Tennessee
Code Annotated sections 49-5-501, et seq. Thereafter, on February 28, 2013, SCBE
notified Mr. Harper that the following charges were being brought against him: (1)
Incompetence, in violation of Tennessee Code Annotated section 49-5-501(5); (2)
Inefficiency, in violation of section 49-5-501(6); and (3) Neglect of Duty, in violation of
section 49-5-501(8). Pursuant to section 49-5-512 of the Tenure Act, Mr. Harper
requested and was granted an administrative hearing, which was held on June 4-5 and 12,

        5
          A drop-in is when an observer informally visits a classroom by walking in for a short period of
time with as little disruption to the classroom as possible.
        6
           The ratings were on a scale from “Significantly Below Expectations” to “Exceeding
Expectations.”
                                                  -4-
2013. On August 12, 2013, the Hearing Officer entered findings of fact and conclusions
of law, finding that Mr. Harper was inefficient, incompetent, and had neglected his
duties, sustaining the recommendation for his dismissal. Mr. Harper then appealed the
Hearing Officer’s ruling to SCBE. After a hearing, SCBE, on November 14, 2013,
sustained the Hearing Officer’s decision. On December 13, 2013, Mr. Harper filed a
petition for writ of certiorari in the Shelby County Chancery Court (the “chancery
court”), seeking judicial review of his dismissal.

        A hearing was held on August 14, 2017, and on January 10, 2018, the chancery
court entered its findings of fact and conclusions of law, affirming SCBE’s dismissal of
Mr. Harper on the basis of inefficiency, incompetency, and neglect of duty. Mr. Harper
filed a motion to alter or amend the chancery court’s order, which the chancery court
denied on June 6, 2018, stating that there is “no clear error of law or injustice that would
entitle Mr. Harper to the relief he seeks” and that “[s]ufficient evidence is found within
the Court’s Order and the record in its entirety to justify SCBE’s dismissal of [Mr.
Harper].” Mr. Harper timely filed his notice of appeal on June 14, 2018.

                                   ISSUES PRESENTED

       Mr. Harper raises 5 issues on appeal, which we rephrase as follows:

         1. Whether the chancery court erred in finding that there was sufficient
            evidence to support Mr. Harper’s dismissal on the basis of inefficiency.
         2. Whether the chancery court erred in finding that evaluations plainly marked
            on their face as “satisfactory” were in fact not satisfactory and were
            sufficient to support Mr. Harper’s dismissal based on inefficiency.
         3. Whether the chancery court erred in finding that there was sufficient
            evidence to support Mr. Harper’s dismissal on the basis of incompetency.
         4. Whether the chancery court erred in finding that there was sufficient
            evidence to support Mr. Harper’s dismissal on the basis of neglect of duty.
         5. Whether the chancery court erred in finding that SCBE provided an
            individual professional development plan to Mr. Harper as required by MCS
            Professional Development Policy 5.8034.

                                 STANDARD OF REVIEW

      As the Tennessee Supreme Court stated in Emory v. Memphis City Schools Board
of Education,

       it is apparent that the standard of review under the Tenure Act is not the
       standard applicable to a common law writ of certiorari. Instead, the
       standard of review specified in the statute is intended to permit the
       chancery court to address the intrinsic correctness of the school board’s
                                            -5-
      decision. The appellate court in Ripley aptly described this standard of
      review: “The chancery court’s review, as contemplated by [section 49-5-
      513], is a de novo review wherein the chancery court does not attach a
      presumption of correctness to the school board’s findings of fact, nor is it
      confined to deciding whether the evidence preponderates in favor of the
      school board’s determination.” The teacher does not have the ability to
      present new evidence on the merits of the charges; the chancery court’s de
      novo review is limited to the record of the school board proceedings.

Emory v. Memphis City Schools Bd. of Educ., 514 S.W.3d 129, 141-42 (Tenn. 2017)
(internal citations omitted). Thus, the chancery court is to review appeals under the
Tenure Act pursuant to the standard of review as explained above in Emory. If an appeal
is taken from the decision of the chancery court to this Court, we review the chancery
court’s decision pursuant to Rule 13(d). The chancery court’s findings of fact are
reviewed de novo with a presumption of correctness unless the evidence preponderates
otherwise. Id. at 142. Issues of law are reviewed de novo, with no presumption of
correctness given to the chancery court’s conclusions. Id.

                                     DISCUSSION

        The primary purpose of the Tenure Act is “to protect school teachers from
arbitrary demotions and dismissals.” Cooper v. Williamson Cty. Bd. of Educ., 746
S.W.2d 176, 179 (Tenn. 1987) (quoting Snell v. Brothers, 527 S.W.2d 114, 116 (Tenn.
1975)). However, the Tenure Act does provide five exclusive grounds for which a
tenured teacher may be dismissed: incompetence, inefficiency, neglect of duty,
unprofessional conduct, and insubordination. Tenn. Code Ann. § 49-5-511(a)(2). In the
instant case, the chancery court found that Mr. Harper was inefficient, incompetent, and
engaged in neglect of duty, ultimately concluding that SCBE had just cause to dismiss
Mr. Harper.

                                    A. Inefficiency

      Tennessee Code Annotated section 49-5-501 defines “inefficiency” as follows:
      “Inefficiency” means being below the standards of efficiency maintained by
      others currently employed by the board for similar work, or habitually
      tardy, inaccurate or wanting in effective performance of duties. The
      definition of inefficiency includes, but is not limited to, having evaluations
      demonstrating an overall performance effectiveness level that is “below
      expectations” or “significantly below expectations” as provided in the
      evaluation guidelines adopted by the state board of education pursuant to §
      49-1-302[.]


                                         -6-
Tenn. Code Ann. § 49-5-501(6) (emphasis added). As is apparent from the definition and
as this Court has noted, “[t]he definition of inefficiency is not exclusively limited to
having poor evaluations[.]” Harrison v. Shelby Cty. Bd. of Educ., No. W2015-01543-
COA-R3-CV, 2016 WL 1250782, at *4 (Tenn. Ct. App. Mar. 30, 2016). In the present
case, the chancery court found that Mr. Harper’s dismissal for inefficiency was warranted
because he lacked sufficient classroom management skills. The question, then, becomes
whether there is sufficient evidence in the record to support such a finding. We conclude
that there is.

        Principal McBride testified that, prior to the start of the 2009-2010 school year at
A. Maceo Walker, Mr. Harper was “slow” and “nonchalant” about preparing his
classroom for the first day of school. She also testified that, during the school year, Mr.
Harper had significant classroom management issues. Specifically, Principal McBride
testified that

       [t]he kids – the kids were not paying attention, they were talking and
       chatting, paper all over the classroom, so [Mr. Harper’s] up talking or
       presenting the lesson and the kids are just doing whatever they want to do.
       And then quite a few times when we walked in, you know, he would begin
       instruction when the administrator walked into the classroom, so prior to
       that, we do a lot of monitoring of the halls and we walk classes all the time,
       but just walked by and the kids are just in complete chaos, I mean just –
       just doing whatever – whatever 12-year-olds want to do, I mean, talking
       and playing and joking and checking, yelling across the room, throwing
       paper balls, just all sorts of juvenile behavior that was occurring within the
       confines of those four walls.

Mr. Harper’s own classroom management issues bled over into subsequent classrooms,
as well. Principal McBride testified that “the noise that was coming from his classroom
was just interrupting the entire hallway.” She further testified that other teachers
complained to her that it would take 5 to 10 minutes to control the students in their
classrooms who had just come from Mr. Harper’s classroom.

       Principal Nicholson and Mr. Ryan also observed Mr. Harper’s classroom
management issues during the 2011-2012 school year at Cypress Middle School.
Principal Nicholson summarized Mr. Harper’s classroom environment as follows:
“Sometimes it looked like busy work that was taking place, students – some of them were
up and around playing with each other, some of them were very boisterous. Some of
them weren’t doing any work, some of them were doing work.” Mr. Ryan provided a
similar summarization of what he observed in Mr. Harper’s classroom: “[T]here were
scholars who just got up and walked out of class . . . . There were things, like, walking
across desks in the classroom, getting up on the floor without permission in the class,

                                           -7-
yelling out, checking to the point where it really discouraged other scholars.”7 According
to Mr. Ryan, Mr. Harper “spent a bulk of his class time correcting misbehavior.” Mr.
Harper even resorted to using a whistle to bring his classroom back to order. As to the
effect Mr. Harper’s classroom management had on other classrooms, Principal Nicholson
testified that multiple teachers expressed their frustrations to her. She recounted that one
teacher told her that Mr. Harper’s classroom was “total chaos,” another that Mr. Harper
had “no control over his classroom.”

       Mr. Harper’s lack of classroom management is also reflected in the Observation
Summary reports completed by Principal Nicholson and Mr. Ryan following their formal
observations of his classroom. In one, dated January 5, 2012, Mr. Ryan reported the
following:

        In the observed lesson, there was very little evidence that a positive rapport
        existed between the teacher and the students as evident in the number of
        times the teacher had to correct misbehavior, which significantly interfered
        with the flow of the lesson . . . . Students were frequently disrespectful to
        the teacher, and, at times, their fellow peers, as evident in the teacher using
        a whistle in the classroom, students blurting out, students checking/teasing
        each other, and constant verbal redirection throughout the class.

Two months later, on March 6, 2012, Mr. Ryan completed a similar report:

        The lesson did not progress at an appropriate pace due to the teacher having
        to constantly address misbehavior in the class. Further, there were a
        number of students disengaged in the lesson . . . . Students were frequently
        disrespectful to the teacher and their peers . . . . The teacher had to address
        the students on many occasions about talking excessively, sharpening
        pencils, getting up on the floor without permission, and coming to class
        prepared.

        In Ketchersid v. Rhea County Board of Education, this Court affirmed the school
board’s decision to dismiss a tenured teacher on the basis of insubordination,
incompetence, and inefficiency. Ketchersid v. Rhea Cty. Bd. of Educ., 174 S.W.3d 163,
164 (Tenn. Ct. App. 2005). In finding sufficient evidence to support a finding of
inefficiency, this Court noted the following:

        Assistant Principal Jackson testified before the School Board that, when he
        had observed Mrs. Ketchersid’s classroom prior to her February 12, 2002
        suspension, he was forced to call down a child who was misbehaving

        7
          Mr. Ryan testified that, from his interactions with the students, he learned that “if you want to
cut up, [Mr. Harper’s is] the class you cut up in.”
                                                   -8-
        because Mrs. Ketchersid was doing nothing to control the situation.
        Jackson stated that he had never had to call down a child before while
        observing any other classroom. Mrs. Ketchersid even admitted at the
        hearing that she had failed to appropriately discipline her students and
        make them behave, in spite of her 24 years of teaching experience.

Id. at 169. Similarly, here, the record is replete with instances of Mr. Harper’s classroom
management issues and his students’ misbehavior—issues that, according to multiple
school administrators, other teachers did not experience.8 Moreover, despite his 18 years
of teaching experience, multiple school administrators—from two different schools—had
described Mr. Harper’s classroom as total and complete chaos. We conclude that Mr.
Harper’s lack of classroom management skills demonstrated a “wanting in effective
performance of duties” and was “below the standards of efficiency” when compared to
other teachers employed by SCBE. Accordingly, we affirm the chancery court’s finding
that there is sufficient evidence to sustain Mr. Harper’s dismissal on the basis of
inefficiency.

       The chancery court also found sufficient evidence to sustain Mr. Harper’s
dismissal on the basis of inefficiency because he scored “below expectations” or
“significantly below expectations” on multiple evaluations.9 While Mr. Harper contends

        8
            Mr. Ryan provided the following testimony:

                 Q: So is it correct to say that the other sixth grade teachers taught the same
        students that Mr. Harper taught?
                 A: Taught the exact same students.
                 Q: Okay. And was it – and just so that your testimony is clear, was it your
        testimony that these other teachers did not have the level of classroom management
        difficulties that Mr. Harper had?
                 A: Correct.

        Principal Nicholson provided similar testimony:

                Q: Did the other sixth grade teachers have the – teach the same students that Mr.
        Harper taught?
                A: Yes.
                ....
                Q: Did the other teachers, sixth grade teachers have the classroom management
        issues or problems that Mr. Harper had?
                A: Not so much that I – not at all really.
        9
          “The very definition of inefficiency included in the statute uses the plural term ‘evaluations’
rather than the singular ‘evaluation’.” Harrison v. Shelby Cty. Bd. of Educ., No. W2015-01543-COA-R3-
CV, 2016 WL 1250782, at *4 (Tenn. Ct. App. Mar. 30, 2016). When the statutory language is clear and
unambiguous, we must apply its plain meaning in its normal and accepted use, without a forced
interpretation that would limit or expand the statute’s application. Eastman Chem. Co. v. Johnson, 151
S.W.3d 503, 507 (Tenn. 2004). Accordingly, together, section 49-5-501(6) of the Tenure Act and
                                                   -9-
that the 2007-2008 and 2008-2009 evaluations were satisfactory because they were
marked so on their face, we find it unnecessary to address this issue considering there is
already sufficient independent evidence to sustain Mr. Harper’s dismissal on the basis of
inefficiency.

                                       B. Incompetence

       Tennessee Code Annotated section 49-5-501 defines “incompetence” as follows:

       “Incompetence” means being incapable, lacking adequate power, capacity
       or ability to carry out the duties and responsibilities of the position. This
       may apply to physical, mental, educational, emotional or other personal
       conditions. It may include lack of training or experience, evident unfitness
       for service, a physical, mental or emotional condition making the teacher
       unfit to instruct or associate with children or the inability to command
       respect from subordinates or to secure cooperation of those with whom the
       teacher must work;

Tenn. Code Ann. § 49-5-501(5). The chancery court, relying on the same evidentiary
basis on which it sustained Mr. Harper’s dismissal on the basis of inefficiency, also
sustained his dismissal on the basis of incompetence. The chancery court found that Mr.
Harper’s “continued lack of classroom management is equivalent to an ‘inability to
command respect or secure cooperation’ of his students and therefore, renders him
incapable or unable to carry out the duties and responsibilities of a teacher.” Based on
our review of the record on appeal, we agree with the findings of the trial court.

        As discussed in the previous section, we concluded that the evidence of Mr.
Harper’s continued lack of classroom management was sufficient to sustain Mr. Harper’s
dismissal on the basis of inefficiency. We further conclude that the same evidence
offered to prove Mr. Harper’s inefficiency is sufficient to prove his incompetency. Just
as Mr. Harper’s lack of classroom management demonstrated a “wanting in effective
performance of duties” and was “below the standards of efficiency,” it also demonstrated
that Mr. Harper “lack[ed] adequate power . . . to carry out the duties and responsibilities
of the position.” See Tenn. Code Ann. §§ 49-5-501(5)-(6). Mr. Harper’s “lack of power”
is evidenced by the fact that he had to use a whistle to “bring the classroom back to
order.” Mr. Ryan testified that Mr. Harper’s use of a whistle “was really a concern” and
“totally out of line and unacceptable in a classroom[,]” noting that, in his teaching
experience, whistles are supposed to be used only in gym classes. Additionally, both
Principal Nicholson and Mr. Ryan testified as to the complete lack of respect for Mr.
Harper’s authority that students exhibited in his classroom.

Harrison indicate that evidence of more than one unsatisfactory evaluation is one way to show that a
teacher is inefficient.
                                              - 10 -
       In Childs v. Roane County Board of Education, this Court affirmed a tenured
teacher’s dismissal for incompetence by noting that the record was “replete with
testimony that plaintiff was unable to control her classroom, maintained questionable
methods for determining students’ grades, and required extraordinary assistance from
school administrators and parents to enforce discipline.” Childs v. Roane Cty. Bd. of
Educ., 929 S.W.2d 364, 365 (Tenn. Ct. App. 1996). Similarly, here, the record is replete
with proof that Mr. Harper was unable to control his classroom and that he required
extraordinary assistance from school administrators. Regarding the latter, the record
indicates that Mr. Harper called the front office for assistance two to three times a week,
which, according to Mr. Ryan, was excessive in comparison to the other teachers at the
school. Principal Nicholson testified that she, too, was concerned with the frequency at
which Mr. Harper called the front office for assistance.

         We agree that each of these factual circumstances reflect directly on Mr. Harper’s
competency as a teacher and, accordingly, affirm the chancery court’s finding that there
is sufficient evidence to sustain Mr. Harper’s dismissal on the basis of incompetency.

                                       C. Neglect of Duty

        Tennessee Code Annotated section 49-5-501 defines “neglect of duty” as “gross or
repeated failure to perform duties and responsibilities that reasonably can be expected of
one in such capacity or continued unexcused or unnecessary absence from duty.” Id. at §
49-5-501(8). The chancery court found sufficient evidence to sustain Mr. Harper’s
dismissal on the basis of neglect of duty, citing to his excessive tardiness, his repeated
failure to timely submit his leave paperwork during the 2009-2010 school year, and his
failure to attend required professional development courses at the University of
Memphis.10

       Regarding his incidents of tardiness, Mr. Harper’s performance evaluations
indicate that he was tardy 42 times during the 2007-2008 school year and 91 times during
the 2008-2009 school year. Additionally, the February 26, 2013 notice of charges letter
indicates that, during the 2011-2012 school year, Mr. Harper was tardy 35 times. Mr.
Harper, however, disputes these numbers. Regarding his alleged tardiness for the 2007-
2008 and 2008-2009 school years, Mr. Harper testified that the machine that tallied
attendance would break down “quite often.” He also testified that he was never
disciplined for his alleged tardiness during these two school years. As to his alleged
tardiness for the 2011-2012 school year, Mr. Harper provided the following testimony:

       Q: Now, the charging letter also indicates that you were tardy 35 times
       during the 2011-2012 school year. Were you, in fact, tardy 35 times?

       10
          The trial court also found that Mr. Harper engaged in neglect of duty “for the same reasons
discussed above in regard to [Mr. Harper’s] inefficiency and incompetency.”
                                               - 11 -
      A: I seriously doubt it. I am not saying that I was never ever late, and I do
      recall calling in a couple times, but at the same time, if I’m doing metal
      detector duty and I’m also getting in there and the computer that you check
      in on is not working or there’s a line, all those factors come into play.

Numerous teachers support Mr. Harper’s claim that, when there was a long line at the
metal detector or a shortage of teachers, Mr. Harper would “step up” and work metal
detector duty. In addition to Mr. Harper’s claims that he worked extra metal detector
duty and that the check-in system did not work properly at times, there is no other
evidence supporting the charge that Mr. Harper was tardy 35 times. Mr. Harper testified
that he never received an “oops” memo or any other warning regarding his alleged
tardiness during the 2011-2012 school year, whereas other teachers who were tardy did
receive such memos.11 We conclude that the chancery court erred in finding that there
was sufficient evidence to sustain Mr. Harper’s dismissal on the basis of neglect of duty
due to his alleged tardiness.

        Regarding Mr. Harper’s failure to timely submit his leave-extension paperwork
and return from leave during the 2009-2010 school year, we are of the opinion that, had
SCBE acted timely, Mr. Harper’s admitted “slight misstep” would be sufficient to
constitute neglect of duty. Indeed, the Tennessee Supreme Court has noted that “a
teacher’s failure to return from leave may be considered cause for termination because it
is ‘neglect of duty[.]’” Thompson v. Memphis City Bd. of Educ., 395 S.W.3d 616, 626
(Tenn. 2012). However, Mr. Harper’s failure occurred in 2010—three years prior to
when SCBE brought tenure charges against him. Under these facts, we conclude that the
chancery court erred in finding that Mr. Harper’s failure to submit his leave-extension
paperwork in a timely manner constituted neglect of duty. We are also of the opinion
that Mr. Harper’s failure to attend a professional development course was an insufficient
basis to support a finding of neglect of duty in this case. The record indicates that Mr.
Harper was scheduled to attend a professional development course on classroom
management at the University of Memphis on February 25, 2012. Mr. Harper, however,
testified that he was ill that day and “had some kind of medical appointment that I had to
get to.” Moreover, Mr. Harper testified that he was not given an opportunity to make up
the training. We conclude that the chancery court erred in finding that Mr. Harper’s
failure to attend the professional development course constituted neglect of duty.

                               D. Professional Development Plan

        As this Court stated in Harrison, “MCS Professional Development Policy 5.8034
was the governing authority regarding professional development within the school
district[,]” which “required the development of an individual professional development
plan prior to termination of a tenured teacher.” Harrison, 2016 WL 1250782, at *5. The

      11
           “Oops” memos were a form of discipline issued to teachers who were tardy.
                                                 - 12 -
chancery court found that SCBE provided a professional development plan to Mr. Harper
in compliance with MCS Professional Development Policy 5.8034. On appeal, Mr.
Harper argues that SCBE failed to follow this policy.

       Mr. Harper argues that the facts of this case are analogous to those of Harrison,
where this Court concluded that SCBE did not develop or implement an individual
professional development plan for Ms. Harrison as required by MCS Professional
Development Policy 5.8034. Harrison, 2016 WL 1250782, at *6. While this case does
bear some resemblances to Harrison, we are of the opinion that they are ultimately
distinguishable.

       In Harrison, Ms. Harrison was observed on four separate occasions throughout the
school year. Id. at *4. Three of the post-observation reports noted that Ms. Harrison had
classroom management issues, but, as this Court noted, “only one of the four post-
observation reports entered into evidence suggested professional development for Ms.
Harrison” and “three of the four post-observation reports did not detail any areas of
growth or list any additional considerations for Ms. Harrison.” Id. Here, Mr. Harper,
too, was observed on four separate occasions throughout the 2011-2012 school year;
however, all four of the post-observation reports entered into evidence in the present case
detailed areas of growth and listed additional considerations for Mr. Harper, and two of
the four suggested professional development for Mr. Harper. Moreover, this Court in
Harrison concluded that the single professional development plan developed for Ms.
Harrison did not comply with MCS Professional Development Policy 5.8034 because

       Mr. Kyle [the principal] did not recommend specific professional
       development to Ms. Harrison. The professional growth plan submitted by
       Mr. Kyle contains only boiler-plate catch-phrases about types of support
       available throughout the district. The plan submitted into evidence is not
       individualized to Ms. Harrison. Additionally, the plan is not signed by Mr.
       Kyle, nor did he explain the omission of his signature during his testimony.

Id. Here, the record indicates that the school administrators at Cypress Middle School
did recommend specific and individualized professional development to Mr. Harper. In
the professional development plan attached to the November 4, 2011 post-observation
report, Mr. Harper was given, among other things, the following goals: develop
interactive lessons involving games in order to sustain students’ attention specific for
sixth grade science; read a book on whole brain strategies and activities; attend a Science
Teacher’s Collaborative on January 25, 2012 at East High School; and develop and
implement a rules and procedures system to better facilitate classroom management. In
the professional development plan attached to the February 24, 2012 post-observation
report, Mr. Harper was instructed, among other things, to develop and implement
strategies to cultivate a learning environment specifically for a science class, such as
incorporating a lab lesson once a week, and to attend a professional development course
                                          - 13 -
titled “Science: Conducting Effective Labs and Hand-on Experiments for grades 6-8”.
These goals and instructions provided by the professional development plans are specific
and individualized to Mr. Harper, who at the time was teaching sixth grade science.
Moreover, Principal Nicholson provided additional professional development to Mr.
Harper by arranging for him to observe a “Level 5” science teacher at Lester Middle
School in January 2012.12 Mr. Ryan and Principal Nicholson testified similarly as to the
purpose of Mr. Harper’s observation. Mr. Ryan stated that the administrators at Cypress
Middle School “wanted him to have the opportunity to see some good[,] strong science
teachers in action.” Principal Nicholson added that she hoped Mr. Harper “could come
back and implement some of the strategies [he observed at Lester] within his
classroom[.]”.

        Mr. Harper correctly notes that neither of the professional development plans was
signed by school administrators. These omissions, however, can be clarified by
additional documents in the record. All four post-observation reports are signed by either
Principal Nicholson and Mr. Harper or Mr. Ryan and Mr. Harper. Additionally, the post-
observation reports contain a section titled “Professional Growth Review,” which asks
the parties to select certain indicators from the “Professional Growth and Support Plan.”
The two professional development plans submitted into evidence—while not signed or
dated—immediately follow the November 4, 2011 and February 24, 2012 post-
observation reports—which were signed and dated by both Principal Nicholson and Mr.
Harper. Accordingly, it appears that the two professional development plans were
developed in conjunction with the respective post-observation reports. Even disregarding
such reasoning, the fact that the two professional development plans lack signatures from
school administrators, by itself, is insufficient to support a conclusion that SCBE did not
comply with MCS Professional Development Policy 5.8034. In Harrison, aside from the
fact that the plan was not signed, we held that the professional development plan
submitted into evidence did not comply with MCS Professional Development Policy
5.8034 because: (1) it did not recommend specific professional development to Ms.
Harrison; (2) it contained only boiler-plate catch-phrases about types of support available
throughout the district; and (3) it was not individualized to Ms. Harrison. Harrison, 2016
WL 1250782, at *4. Here, the two professional development plans were individualized
to and recommended specific professional development for Mr. Harper. Additionally,
whereas Ms. Harrison was informed of types of support available throughout the school
district, Mr. Harper was actually required to meet with and observe a Level 5 science
teacher at Lester Middle School. We conclude that Mr. Harper was offered sufficient
professional development and affirm the chancery court’s finding that SCBE provided a
professional development plan to Mr. Harper in compliance with MCS Professional
Development Policy 5.8034.

        12
          According to Mr. Ryan, Lester Middle School is a “neighboring middle school, not far from
Cypress[,]” noting that “what’s unique about Lester is that their kids share very similar challenges to our
kids at Cypress.”
                                                  - 14 -
                                     CONCLUSION

      For the foregoing reasons, we reverse the chancery court’s finding that Mr. Harper
engaged in neglect of duty, but we affirm the chancery court’s findings that Mr. Harper’s
lack of classroom management constituted sufficient evidence of inefficiency and
incompetence and thereby affirm the teacher’s termination.




                                                  _________________________________
                                                  ARNOLD B. GOLDIN, JUDGE




                                         - 15 -
