                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE

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

                    Direct Appeal from the Circuit Court for Knox County
                           No. 2-774-93   Harold Wimberly, Judge



                    No. E1999-01557-COA-R3-CV - Decided June 19, 2000


This appeal arises from a hearing in Circuit Court on a petition for certiorari, which sought review
of the actions of the Knox County Board of Education and the Superintendent of the Department of
Public Instruction. The Court held that the Board and the Superintendent acted arbitrarily in its
dismissal of the five teacher aides and held that the aides were entitled to back pay and benefits for
the 1993-1994 Knox County School year, as well as prejudgment interest. On appeal, the teacher
aides take issue with the Circuit Court's decision, insisting that they have causes of action under the
Education Truth in Reporting and Employee Protection Act and for retaliatory discharge and that
they had a reasonable expectation of retaining employment with the school system had they not been
terminated for refusing training to perform catheterizations on students. We affirm the Circuit
Court's judgment with respect to its decision on the teacher aides' claims under the Education Truth
in Reporting Act and retaliatory discharge, but remand for further proceedings on the issue of
whether the aides are entitled to back pay, benefits, and interest for more than the 1993-1994 school
year.

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

GODDARD, P.J., delivered the opinion of the court, in which FRANKS and SWINEY, JJ. joined.

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

Richard T. Beeler and Mary Ann Stackhouse, Knoxville, Tennessee, for the appellees, Knox County
Board of Education and Allen Morgan.

                                             OPINION
              This is an appeal from a judgment entered by the Knox County Circuit Court. The
Appellants are Cora B. Cantrell, Joan I. Dozier, Sandra C. Barnard, Margaret H. Schaefer, and
Mildred A. Morrell. They seek to reverse the judgment of the Trial Court against the Appellees, the
Knox County Board of Education and Allen Morgan, in his capacity as Superintendent of the Knox
County Department of Public Instruction.


               The Appellants present the following issues, which we restate, on appeal:

                      1. Whether the Trial Court improperly dismissed for failure
                      to state a cause of action the claim of the teacher aides
                      that adverse employment action was taken against them when
                      they reported their objections to training and performing
                      catheterizations on students, thereby giving rise to a cause of
                      action pursuant to the Education Truth in Reporting and
                      Employee Protection Act of 1989.

                      2. Whether the Trial Court improperly dismissed for failure to
                      state a cause of action the claim of the teacher aides
                      that their employment termination was a retaliatory discharge
                      for refusal to participate in and/or remain silent about illegal
                      activities and that the discharge amounted to willful, wanton
                      or gross negligence.

                      3. Whether the teacher aides, who pursued their legal
                      remedies following their discharge on December 1,
                      1993, had a reasonable expectation of continued
                      employment in the Knox County School System such that
                      their damages should not be limited to an award of back pay
                      and benefits for the remaining 1993-1994 Knox County school
                      year.


               We affirm the judgment of the Trial Court with respect to issues one and two and
remand for further proceedings on issue three regarding damages.

              When the 1993-1994 Knox County school year began, Ms. Cantrell, Ms. Dozier, Ms.
Barnard, and Ms. Morrell were assigned to Halls Middle School as teacher aides, and Ms. Schaefer
was assigned to Adrian Burnett Elementary School as a teacher aide.

                                               -2-
               During the first months of the 1993-1994 school year, the Appellants were informed
that they would be required to receive training for performing catheterizations on students. When
the Appellants refused to receive training to perform catheterizations on students, they were notified
on November 23, 1993 that their employment with the Knox County School Board would be
terminated at the Board of Education meeting on December 1, 1993.



                In their original complaint, the teacher aides had contended that performing
catheterizations was a Class B misdemeanor offense because it was the practice of nursing by
unlicensed personnel under Tennessee Code Annotated § 63-7-120. The Appellees maintained that
the practice of performing catheterizations by teacher aides was an exemption to the statute under
Tennessee Code Annotated § 63-7-102. In June 1995 the State Department of Education issued a
directive stating that it had been unaware of the provisions of Tennessee Code Annotated § 63-7-
101, which provides for the practice of nursing. The Department further states in the directive to
school superintendents and directors that it "had thought that local school personnel such as teaching
assistants who had been trained by medical personnel could perform these medical procedures. The
above referenced statutes indicate that local school personnel who are not licensed by the Health
Related Board but who are performing these medical procedures would be included in the definition
of practicing medicine without a license." Since this directive was issued, the Knox County Board
of Education maintains that it has employed only licensed nurses to perform this procedure.


             Before their termination in December 1993, the Appellants had been employed with
the Knox County Board of Education for a number of years:

               Ms. Dozier-- 14 years

               Ms. Schaefer--9 years (in addition to 1 year of part-time service)

               Ms. Barnard--8 years

               Ms. Morrell–3 regular years (in addition to 1 year of temporary service)

               Ms. Cantrell–1 year, 4 months




                                                 -3-
Furthermore, the Appellants who had received performance appraisals received commendable
evaluations, the highest rating, and had been recommended for continued employment.1 John Staley,
Director of Personnel with Knox County Schools, acknowledged that the Appellants were excellent
employees.


               On December 30, 1993, the Appellants filed suit in Knox County Circuit Court for
their wrongful employment discharge. The Trial Court took the case under advisement, and on
May 14, 1999 the Trial Court ruled that the Appellants were entitled to back pay and benefits for
only the year in which they were discharged and the prejudgment interest.


                  Each teacher aide was awarded the following amount:

                           Ms. Cantrell               $ 7,918.99

                           Ms. Dozier                 $11,531.23

                           Ms. Barnard                $ 9,650.71

                           Ms. Schaefer               $ 9,922.11

                           Ms. Morrell                $ 7,951.53



                   In their first issue, the Appellants argue that the Trial Court improperly dismissed for
failure to state a cause of action with respect to the Education Truth in Reporting and Employee
Protection Act of 1989. The Trial Court noted " that the purposes of that act, as set forth in the
statute itself -- referring to, again, TCA 49-50-1401, what we refer to as truth in reporting, education
truth in reporting act -- that the purposes of the act do not cover the factual situation contained in
this case."



         1
          In her performance appraisal for the 1992-1994 school year, Ms. Barnard received a "need fo r impro veme nt"
rating, but was recommended for continued employment. In her performance appraisal dated May 18, 1992, she
received a "com mend able" rating and wa s recom mend ed for co ntinued emplo ymen t. The reco rd does n ot contain
perform ance ap praisals for M s. Morre ll or Ms. C antrell.


                                                        -4-
               The Appellants contend that this Act "recognizes a civil cause of action against any
person or employer on behalf of public education employees subjected to disciplinary measures,
discrimination or harassment related to disclosure of educational actions not in the public interest."
They maintain that the Act "encompasses and directly applies to the wrongful employment discharge
of the Educational Assistants in this case." They assert that the Appellants are pubic education
employees who objected both orally and in writing to performing catheterizations on students, and
because of their objections to performing catheterizations, they were terminated from their
employment. Therefore, the Appellants request that their cause of action regarding the Education
Truth in Reporting and Employee Protection Act of 1989 be reinstated.



                 The Appellees, however, argue that the Trial Court correctly dismissed the
Appellants' claims under the Education Truth in Reporting and Employee Protection Act because
the statute is not applicable to the Appellants' case. The Appellees note that the only court to
interpret the Act is a federal district court in Mosley v. Kelly, 65 F. Supp.2d 725 (E.D. Tenn. 1999).
The Appellees maintain that the district court correctly interpreted the purpose of this Act to be a
reduction of waste and mismanagement of education funds and to prevent "false reporting of
statistical information, including false attendance reports, which can erroneously secure more money
for certain school systems." The Appellants, however, assert that this Court is not bound by
decisions of the federal district court, which incorrectly interpreted the statute.



               Tennessee Code Annotated §§ 49-50-1401 through 49-50-1411 comprise the
Education Truth in Reporting and Employee Protection Act of 1989. Section 49-50-1402 provides
the purpose for the Act:

                       (a) The purpose of this part is to discourage persons, whether
               employed, elected or appointed, who are required to furnish statistical
               data, reports or other information to local or state departments, agencies,
               or legislative bodies, from knowingly and willfully making or causing
               to be made any false or inaccurate compilation of statistical data,
               reports or information related to the operation of a local education agency
               as defined in § 49-1-103. It is the intent of the general assembly to reduce
               the waste and mismanagement of public education funds, to reduce
               abuses in governmental authority and to prevent illegal and unethical
               practices.
                       (b) To help achieve these objectives, the general assembly declares

                                                 -5-
                that public education employees should be encouraged to disclose
                information on actions of local education agencies that are not in the
                public interest, and that legislation is needed to ensure that any employee
                making such disclosures shall not be subject to disciplinary measures,
                discrimination or harassment by any public official.


               Like the court in Mosley, we are of the opinion that the purpose of this Act was to
reduce waste and mismanagement of education funds, and thus, is not applicable to the
circumstances of the Appellants' case. Therefore, this issue is without merit.


                 In their second issue, the Appellants assert that the Trial Court improperly dismissed
for failure to state a cause of action with respect to the Appellants' claim that their employment was
terminated in retaliation for their refusal to participate in or remain silent about illegal activities, and
that discharge amounted to willful, wanton or gross negligence. The Appellants acknowledge that
the issue involving this claim concerns sovereign immunity and the Governmental Tort Liability
Act, but contends that immunity from suit is removed when conduct "amounts to willful, wanton,
or gross negligence." Thus, the Appellants argue that their retaliatory discharge claim was "based
on willful, wanton, or gross negligence" and should not have been dismissed.



                 The Appellees, however, argue that the Trial Court properly dismissed the Appellants'
cause of action for retaliatory discharge. The Appellees assert that the Appellants in their original
petition for certiorari alleged "retaliatory discharge for refusal to participate in illegal activities ...
. in violation of Section 50-1-304 of the Tennessee Public Protection Act, commonly known as 'the
whistleblower' statute," but the Appellees contend that in a move to avoid the sovereign immunity
defense, the Appellants amended their claim to allege that their dismissal "amounted to willful,
wanton, or gross negligence."



                The Trial Court stated the following with respect to this issue:

                        There was another motion by respondent to dismiss
                the claim for retaliatory discharge. Based upon the authority of
                the case determined by Judge Cantrell, the Williamson County
                case that we discussed in our previous hearings, the Court

                                                    -6-
                feels that motion is well-taken and that basis for recovery
                is dismissed.


          A 1997 amendment to Tennessee Code Annotated § 50-1-304 (commonly known as the
Whistle Blower Statute) brought employees of the State of Tennessee within its purview. Before
adoption of the amendment, this Court had held that the Governmental Tort Liability Act did not
remove the immunity of governmental entities as to certain claims. One of those claims is retaliatory
discharge, which is discussed in Williams v. Williamson County Board of Education, 890 S.W.2d
788 (Tenn. Ct. App. 1994). See Seals v. Jefferson City, an unreported opinion of this Court, filed
in Knoxville on June 2, 1999.



                As the Appellees note in their brief, the teacher aides' cause of action arose before the
1997 amendment and statutes do not have retroactive application unless specific language creates
such. Thus, the Trial Court, citing Williams v. Williamson County Board of Education, 890 S.W.2d
788, 790 (Tenn. Ct. App. 1994), correctly held that sovereign immunity is a complete defense for
a retaliatory discharge claim by the Appellants. We affirm the Trial Court's judgment as to this
issue.



               Lastly, the Appellants argue that they had a reasonable expectation of continued
employment in the Knox County School System and because of such, they are entitled to damages
for more than their back pay and benefits for the remaining 1993-1994 school year.



                The Appellants point out that the Knox County Board of Education acted arbitrarily
in discharging them "in contravention of its own catheterization policy." The Trial Court ruled that
the Board acted arbitrarily regarding its policy which allowed aides uncomfortable with
catheterization not to perform it but then discharged the Appellants who had stated that they would
be uncomfortable in performing such a procedure. The Appellants assert that the "1993-1994 Knox
County School Handbook, Policies, Procedures, Rules and Regulations contains language supporting
an expectation by personnel such as Educational Assistants of continued employment based on
'evaluations' which for newly hired employees is to occur three times within a five year span."
Moreover, the Appellants point out that as educational assistants or teacher aides they can participate


                                                  -7-
in pension plans and programs, which typically are not available to limited contract employment for
a school year.



                The Appellees, however, argue that the Trial Court correctly limited the Appellants'
damages. The Appellees argue that the Appellants' contracts were for 200 days during the 1993-
1994 school year and were for amounts ranging from $9,600 to $12,642. The Appellees argue that
the Appellants, as teacher aides, were noncertified employees without tenure and do not have an
"automatic right of renewal" in their positions. Furthermore, the Appellees note that the teacher
aides' contracts state that the teacher aides "agree to serve in accordance with the Regulations for the
Knox County Board of Education." The Appellees dispute the Appellants' reading of the Knox
County Schools Handbook regarding periodic evaluations. The Appellees argue that the Handbook
states that teacher aides are appointed annually, and therefore, the Appellants do not have a
reasonable expectation of being rehired. Consequently, they are not entitled to back pay from the
date of their termination on December 1, 1993 through July 21, 1999, the date the final judgment
was entered.



              Damages in a breach of contract case place the injured party, as nearly as possible,
in the same position it would have been in had the contract been performed. Hennessee v. Wood
Group Enterprises, Inc., 816 S.W.2d 35, 37 (Tenn. Ct. App. 1991).



                 In addressing this issue, we look first at the ruling of the Trial Court. The Court held
that the Appellees acted arbitrarily in dismissing the Appellants because of their refusal to participate
in training to perform catheterizations on students. As the Trial Court noted, the Appellees violated
their own policy regarding the training, and therefore, the Appellants are entitled to damages.


                 The question before us is whether the Appellants had a "reasonable expectation" or
a "reasonable assurance" of employment with the Knox County School Board had they not been
dismissed for refusing to participate in catheterization training. In answering this question, we look
first at the record presented to us on appeal. The Appellants had been employed anywhere from 1
year to 14 years, and nothing in the record indicates that the Appellants would not be recommended
for continued employment. John Staley, Director of Personnel for the Knox County School System,
acknowledged that the Appellants were excellent employees.

                                                  -8-
                Because we have no case law in Tennessee on the issue of whether noncertified,
nontenured school personnel have a reasonable expectation or reasonable assurance of continued
employment, we reviewed case law from jurisdictions. The cases dealt with whether noncertified,
nontenured personnel were entitled to unemployment compensation during the summer months
because they had a "reasonable assurance" of employment the following school year. Courts in these
jurisdictions held that noncertified, nontenured personnel who have a "reasonable assurance" of
employment the following school year are not entitled to unemployment compensation during the
summer months. McCann v. Ross, 74 A.D.2d 697 (N.Y. App. Div. 1980) (teacher's aide was not
eligible for benefits pursuant to the federal Special Unemployment Assistance Act because she had
a reasonable expectation that her employment would resume following the summer vacation period);
Schoenfeld v. Board of Review, 395 A.2d 528 (N.J. Super. Ct. App. Div. 1978) (because teacher's
aide had an oral understanding that she would return to work after the summer break, she was
ineligible for unemployment benefits under the federal Special Unemployment Assistance Act).



                The Appellants' argument that they would have been retained as educational assistants
or teacher aides by the Knox County School Board had it not been for their termination is persuasive.
Although the Appellants were noncertified, nontenured personnel, they certainly could have had
a reasonable expectation or reasonable assurance of retaining their positions with the Knox County
School Board. Nothing in the record indicates that these individuals would not have been retained,
as they had been for many years in most of their cases, but for their dismissal for refusing to
participate in catheterization training.
                                              .


                Based on the foregoing, we affirm the judgment of the Trial Court on issues one and
two and remand to the Trial Court for further proceedings on issue three regarding damages. Costs
of the appeal are adjudged against Knox County Board of Education and Allen Morgan.




                                                -9-
