                                                                                           07/29/2020
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  June 24, 2020 Session

 CANDICE MOSBY v. FAYETTE COUNTY BOARD OF EDUCATION, ET
                           AL.

                 Appeal from the Chancery Court for Fayette County
                    No. 17126 Martha B. Brasfield, Chancellor
                      ___________________________________

                           No. W2019-01851-COA-R3-CV
                       ___________________________________


This case involves a challenge to a decision to non-renew the employment of a non-tenured
teacher. The plaintiff brought suit challenging her non-renewal on the basis that she did
not receive six required observations per school year. In her complaint, the plaintiff
challenged the non-renewal decision itself, stating it was procedurally flawed, and alleged
the director improperly delegated the decision. After the plaintiff presented her proof at
trial, the defendants moved for an involuntary dismissal. The trial court granted the motion,
and the plaintiff appealed. We affirm the trial court’s decision to dismiss the case and
remand.

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

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and KENNY W. ARMSTRONG, JJ., joined.

Richard L. Colbert, C. Joseph Hubbard, and Kelley E. Strange, Nashville, Tennessee, for
the appellant, Candice Mosby.

Andrew V. Sellers, Jackson, Tennessee, for the appellees, Fayette County Board of
Education, and Marlon D. King.


                                        OPINION

                          I.     FACTS & PROCEDURAL HISTORY

       In January 2013, Candice Mosby (“Plaintiff”) was hired as a school guidance
counselor for the Fayette County School System. As a “teacher,”1 Plaintiff was employed
by the Fayette County Board of Education (“the Board”). Throughout her time as a
counselor, Plaintiff was responsible for helping students with issues such as selecting
classes, registering for and adjusting class schedules, preparing for college, and providing
individual counseling. Because Plaintiff held a five-year apprentice-level license, she
sought to advance to a professional license.

        In order to advance to a professional license, teachers needed to earn professional
development points (“PDPs”). PDPs are earned by receiving high scores on evaluations
(if completed) and by participating in additional training, such as attending conferences or
workshops. The majority of an evaluation is comprised of observations of a teacher.
Plaintiff testified that State law requires a teacher be observed six times per school year.
High scoring evaluations and PDPs also help a teacher obtain tenure status. Therefore,
Plaintiff claims, it is important for a non-tenured teacher, such as herself, to obtain the
proper evaluations and observations. For the 2013–2014 school year, Plaintiff received an
overall evaluation score of 4 out of 5, scoring above expectations. Plaintiff did not receive
an evaluation score the following school year. Additionally, there is no evidence to show
that she was observed in the 2013–2014 or 2014–2015 school years.

        Concerned that she was not being observed or receiving a complete evaluation,
Plaintiff asked one of the school’s Assistant Principals, Marcus Stokes, to observe her
during the 2015–2016 school year. The initial observation form for this school year is
dated as December 17, 2015. Plaintiff admits that she helped fill out and signed this
observation form. However, despite her signature on the form, Plaintiff maintains that Mr.
Stokes did not actually observe her and that he asked Plaintiff to fill out the form herself.2
Plaintiff signed another observation form on May 16, 2016 that indicated Mr. Stokes
performed a second observation. Again, Plaintiff asserts that no school administrator
actually observed her in May 2016 and that Stokes asked her to fill out the form. Even if
Mr. Stokes observed Plaintiff in December 2015 and May 2016, the record does not contain
written proof of six observations. Knowing that she did not receive necessary observations,
Plaintiff did not inform her immediate supervisor, Principal Diane Watkins or any member
of the Board that she lacked necessary observations. Plaintiff did not file a formal or
informal grievance action for not receiving the sufficient number of observations.

       On May 23, 2016, Plaintiff met with Principal Watkins and Mr. Stokes to receive
her “placement letter” for the upcoming school year. At the meeting, Principal Watkins
gave Plaintiff a written memorandum that indicated her employment would not be
renewed. The memorandum included the letterhead of Dr. Marlon King, the Director of
        1
           Tennessee Code Annotated broadly defines “teachers” to include counselors, supervisors, “and
all other certificated personnel employed by any local board of education.” Tenn. Code Ann. § 49-5-
501(10).
         2
           At trial, Plaintiff testified that she believed signing the form “was [her] only option to have an
observation completed.”
                                                   -2-
Fayette County Schools. At trial, Dr. King testified that school principals made
recommendations on personnel decisions, including Plaintiff’s, and Dr. King made the
final decision to non-renew Plaintiff. Dr. King stated that he did not review Plaintiff’s
formal observations prior to making his decision.

        On February 21, 2017, Plaintiff initiated this action by filing a complaint against Dr.
King and the Board (collectively “Defendants”). In her complaint, Plaintiff alleged that
Dr. King and the Board improperly failed to consider Plaintiff’s required evaluations in
deciding to non-renew her employment, that the decision was untimely, and that Dr. King
improperly delegated his responsibility to make the non-renewal decision.3 Trial occurred
on October 3, 2019. Plaintiff, Stella Minor (former Human Resources Director of the
Fayette County School System), and Dr. King testified. At the close of Plaintiff’s proof,
Dr. King and the Board moved for involuntary dismissal, arguing that Plaintiff did not have
a right of action to challenge the non-renewal decision and that Dr. King did not delegate
the decision to non-renew Plaintiff. In an oral ruling, the trial court granted Defendants’
motion to dismiss. On October 10, 2019, the trial court entered a final written order,
incorporating its oral ruling. Plaintiff timely appealed.

                                   II.          ISSUE PRESENTED

       Plaintiff presents one issue on appeal, which we have copied verbatim:

              In light of the requirement in Tenn. Code Ann. § 49-1-302(d)(2)(A)
       that a teacher’s evaluation “shall be a factor” in all employment-related
       decisions, may a non-tenured teacher maintain an action challenging her
       nonrenewal under Tenn. Code Ann. § 49-5-409 when the director of schools
       makes the decision to non-renew without considering her evaluations?

      For the reasons stated herein, we affirm the trial court’s decision to grant
Defendants’ motion to dismiss and find that Tennessee Code Annotated section 49-5-409
does not provide a private right of action for Plaintiff.

                                         III.     DISCUSSION

      A trial court’s ruling on a Tennessee Rule of Civil Procedure 41.02(2) motion for
involuntary dismissal is governed by Rule 13(d) of the Tennessee Rules of Appellate
Procedure. Bldg. Materials Corp. v. Britt, 211 S.W.3d 706, 711 (Tenn. 2007). “The court
may dismiss the plaintiff’s claim if the plaintiff has failed to make out a prima facie case.”
Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 414 (Tenn. 2013) (citing Bldg.
Materials Corp., 211 S.W.3d at 711). Similarly, dismissal is appropriate under Rule

       3
        The trial court found that Dr. King made the ultimate decision to non-renew Plaintiff’s
employment. Plaintiff does not challenge this finding in this appeal.
                                                 -3-
41.02(2) when “the plaintiff fail[s] to demonstrate a right to the relief sought.” Id. at 413
(citing City of Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734, 740 (Tenn. 1997)). The
trial court’s factual findings are reviewed de novo with a presumption of correctness. Tenn.
R. App. P. 13(d); Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006). Legal conclusions
are reviewed de novo with no presumption of correctness. Eberbach v. Eberbach, 535
S.W.3d 467, 473 (Tenn. 2017); Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 855
(Tenn. 2010). Questions of law include a court’s interpretation of statutes and local
ordinances. Shore, 411 S.W.3d at 414 (citing Lind v. Beaman Dodge, Inc., 356 S.W.3d
889, 895 (Tenn. 2011); Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn.
2000)).

       The entirety of Plaintiff’s appeal is based on a single issue: whether she has a right
of action under Tennessee Code Annotated section 49-5-409 to challenge the decision not
to renew her employment when she received timely notice of the decision. As a legal issue,
this determination is subject to de novo review by this Court. Brown, 328 S.W.3d at 855.

        “A private right of action is the right of an individual to bring suit to remedy or
prevent an injury that results from another party’s actual or threatened violation of a legal
requirement.” Hardy v. Tournament Players Club at Southwind, Inc., 513 S.W.3d 427,
433 (Tenn. 2017) (quoting Wisniewski v. Rodale, Inc., 510 F.3d 294, 296 (3d Cir. 2007)).4
If a statute does not expressly provide a right of action, courts must determine whether the
legislature intended to create an implied right of action. Brown, 328 S.W.3d at 855.
“Determining whether a statute creates a private right of action requires statutory
construction.” Hardy, 513 S.W.3d at 433. In making this determination, “courts are not
privileged to create such a right under the guise of liberal interpretation of the statute.”
Brown, 328 S.W.3d at 855 (quoting Premium Fin. Corp. of Am. v. Crump Ins. Servs. of
Memphis, Inc., 978 S.W.2d 91, 93 (Tenn. 1998)). Instead, the authority to create a statutory
cause of action lies with the legislature. Id. (citing Premium Fin. Corp. of Am., 978 S.W.2d
at 93; Reed v. Alamo Rent-A-Car, Inc., 4 S.W.3d 677, 689 (Tenn. Ct. App. 1999)). The
plaintiff bears the burden of establishing that a statute provides a private right of action.
Id. at 856; Morrison v. City of Bolivar, No. W2011-01874-COA-R9-CV, 2012 WL
2151480, at *6 (Tenn. Ct. App. June 14, 2012).

       Plaintiff asserts a claim under Tennessee Code Annotated section 49-5-409, alleging
that her non-renewal was a violation of the “Continuing Contract Law.”5 In doing so,

        4
          As noted by the Supreme Court, the terms “private right of action” and “private cause of action”
are often used interchangeably. Id. at 433 n.7.
        5
          The relevant portions of Tennessee Code Annotated section 49-5-409 state:

        (a) Teachers in service and under control of the public elementary and high schools of this
        state shall continue in such service until they have received written notice from their board
        of education or director of schools, as appropriate, of their dismissal or failure of reelection.

                                                     -4-
Plaintiff argues that her dismissal was unlawful under section 49-5-409 because Dr. King
and the Board did not comply with Tennessee Code Annotated section 49-1-302(d)(2)(A).
Among other requirements, section 49-1-302(d)(2)(A) states, “[annual] evaluations shall
be a factor in employment decisions, including . . . promotion, retention, [and]
termination.” Despite Plaintiff’s persistent contentions, we cannot conclude that she has a
right of action in this case to challenge the decision to non-renew her employment.

       In Tennessee, generally, non-tenured teachers are employed by successive one-year
contracts that are subject to renewal at the end of the school year. See Arnwine v. Union
Cty. Bd. of Educ., 120 S.W.3d 804, 808–09 (Tenn. 2003) (concluding a school board does
not have authority to enter into a multi-year contract with a teacher); Cannon Cty. Bd. of
Educ. v. Wade, No. M2006-02001-COA-R3-CV, 2008 WL 3069466, at *9 (Tenn. Ct. App.
July 31, 2008). A non-tenured teacher “shall continue in such service until [he or she has]
received written notice from the[] board of education or director of schools.” Tenn. Code
Ann. § 49-5-409(a). Additionally, “[t]he [written] notice must be received within five (5)
business days following the last instructional day for the school year to be applicable to the
next succeeding school year.” Tenn. Code Ann. § 49-5-409(b).6 Forty-five years ago the
Supreme Court in Snell v. Brothers stated, the failure to give a teacher timely notice of a
decision to non-renew entitles the teacher to an additional year of employment under the
Continuing Contract Law. 527 S.W.2d 114, 117, 119 (Tenn. 1975). Stated differently, if
notice of non-renewal is untimely, it is not effective until the end of the following school
year. See id. This Court has recently revisited the Continuing Contract Law.

        In Dallas v. Shelby County Board of Education, a tenured teacher did not receive
written notice of non-renewal until several months after the end of the school year. Dallas,
2019 WL 3918735, at *2, *13. Due to the untimely notice, she asserted a claim under the
Continuing Contract Law of Tennessee Code Annotated section 49-5-409(b). Id. at *11.
This Court found that the trial court’s grant of summary judgment was improper since it
was undisputed “that the Board did not strictly comply with the plain language of section
49-5-409(b).” Id. at *13. The untimeliness of the notice was central to this decision. See
id. at *15.


        (b) The notice must be received within five (5) business days following the last
        instructional day for the school year to be applicable to the next succeeding school year; .
        ...

        (c) . . . The determination of whether a teacher is qualified for an open position shall be
        made by the director of schools, and the teacher’s most recent evaluations may be a factor
        in such determination.
        6
          Prior versions of this section had different time requirements for receipt of notice. See, e.g.,
Dallas v. Shelby Cty. Bd. of Educ., No. W2018-01661-COA-R3-CV, 2019 WL 3918735, at *13 (Tenn. Ct.
App. Aug. 19, 2019) (stating Tennessee Code Annotated section 49-5-409(b) required “the notice must be
received prior to June 15”).
                                                   -5-
       Turning to the facts of this case, despite her argument to the contrary, we cannot
agree that Dallas and Snell provide support for Plaintiff’s claim. On appeal, there is no
dispute that Plaintiff received timely notice of the decision not to renew her employment.
Instead, Plaintiff argues that the Continuing Contract Law applies because Plaintiff’s
evaluations were not considered in the decision, as is required in Tennessee Code
Annotated section 49-1-302(d)(2)(A). We cannot make such a conclusion. The holdings
in Snell, 527 S.W.2d at 119, and Dallas, 2019 WL 3918735, at *13, do not turn on a failure
to consider a teacher’s evaluations in deciding not to renew employment. Without the
timeliness of notice being in dispute, we cannot find that these cases are on-point.7

       We find no language in section 49-5-409 that directs a court to include section 49-
1-302(d)(2)(A) in a claim under Continuing Contract Law. See Tenn. Code Ann. § 49-5-
409. Allowing such a claim would fly in the face of the directive that courts shall not
“create a [private] right under the guise of liberal interpretation of [a] statute.” See Brown,
328 S.W.3d at 855 (quoting Premium Fin. Corp., 978 S.W.2d at 93). Instead of wielding
the broad-sweeping effect that Plaintiff asserts, the Continuing Contract Law centers on
the timeliness of notice given to a teacher. See Dallas, 2019 WL 3918735, at *15 (stating
“the timely notice of nonrenewal is the ‘essence of the thing to be accomplished’ by the
Continuing Contract Law”) (quoting Emory v. Memphis City Sch. Bd. of Educ., 514 S.W.3d
129, 144 n.11 (Tenn. 2017)); Wash. Cty. Educ. Ass’n v. Wash. Bd. of Educ., No. E2018-
01037-COA-R3-CV, 2019 WL 2537864, at *3 (Tenn. Ct. App. June 20, 2019) (stating “a
non-tenured teacher may be dismissed without cause by written notice . . . as long as the
notice complies with the time limits set in Tenn. Code Ann. § 49-[5]-409”) (alternation in
original) (quoting Cannon Cty. Bd. of Educ., 2008 WL 3069466, at *10).

       Plaintiff’s argument regarding the factors listed in Hardy, 513 S.W.3d at 435, and
Brown, 328 S.W.3d at 855–56, is also unpersuasive. In Brown, the Supreme Court listed
three factors to determine whether a statute provides an implied right of action:

        (1) whether the party bringing the cause of action is an intended beneficiary
        within the protection of the statute, (2) whether there is any indication of
        legislative intent, express or implied, to create or deny the private right of
        action, and (3) whether implying such a remedy is consistent with the

        7
         In support of her case, Plaintiff also cites Geller v. Henry Cty. Bd. of Educ., No. W2017-01678-
COA-R3-CV, 2018 WL 4944542 (Tenn. Ct. App. Oct. 12, 2018), which was recently overturned by our
Supreme Court. See Geller v. Henry Cty. Bd. of Educ., No. W2017-01678-SC-R11-CV, 2020 WL 3169502,
at *15 (Tenn. June 15, 2020). Regardless, we do not find the basis of the Supreme Court’s decision to be
applicable to the present case because it involved the transfer of a tenured teacher and was decided on other
grounds. See id. Plaintiff also relies on Jones v. Knox Cty. Bd. of Educ., No. E2015-00304-COA-R3-CV,
2015 WL 9290172 (Tenn. Ct. App. Dec. 21, 2015). In that case, the plaintiff was a tenured teacher who
challenged her transfer under Tennessee Code Annotated section 49-5-510. Jones, 2015 WL 9290172, at
*1. Further, Jones did not include a discussion on the Continuing Contract Law of section 49-5-409.
Therefore, we also find plaintiff’s reliance on this case to be misplaced.
                                                   -6-
        underlying purposes of the legislation.

Brown, 328 S.W.3d at 855. The court applied these factors again in Hardy, 513 S.W.3d at
435–36.

        Without a violation of section 49-5-409, we do not need to apply the Brown factors
in this case. As we have previously stated, “the timing of section 49-5-409 (b)’s notice
requirement is the very core of the statute.” Dallas, 2019 WL 3918735, at *15. Section
49-5-409 does not offer a prolonged list of protections for non-tenured teachers who wish
to challenge a decision to non-renew their employment. Instead, “[the timing requirement]
is the central and nearly the sole protection offered to non-tenured teachers.” Id. (emphasis
added). See also Snell, 527 S.W.2d at 116 (stating “[a]n untenured teacher . . . can be
discharged without cause simply by written notice of dismissal” if the notice is received by
the required date) (emphasis added); Cannon Cty. Bd. of Educ., 2008 WL 3069466, at *10
(stating the only requirement for a non-tenured teacher to be dismissed without cause is for
the teacher to receive proper written notice of the dismissal). Unless the notice of non-
renewal was untimely, “a non-tenured teacher whose employment is not renewed . . . has
no right to judicial review” in asserting a claim under section 49-5-409. See Cannon Cty.
Bd. of Educ., 2008 WL 3069466, at *10 (emphasis added) (citing Malone v. Shelby Co. Bd.
of Educ., 773 S.W.2d 256, 259 (Tenn. Ct. App. 1989)).

       In this case, there is no dispute that Plaintiff was given timely written notice on May
23, 2016. The trial court expressly found the notice to be timely, and Plaintiff does not
challenge that finding on appeal. In the absence of a violation of the timeliness requirement
in Tennessee Code Annotated section 49-5-409, this section provides no right of action for
Plaintiff—an untenured teacher—to challenge Dr. King’s decision not to renew her
employment.8 Plaintiff has failed to demonstrate a right to relief under Tennessee Code
Annotated section 49-5-409. Therefore, we affirm the trial court’s decision to dismiss
Plaintiff’s claim.9 See Shore, 411 S.W.3d at 413 (stating dismissal is appropriate under
Rule 41.02 when “the plaintiff fail[s] to demonstrate a right to the relief sought”); Brown,
328 S.W.3d at 856 (stating a plaintiff bears the burden of proving a statute provides a
private right of action).

                                             IV.      CONCLUSION


        8
          In her reply brief, Plaintiff plainly states that she is not asserting “an implied right of action based
on Tenn. Code Ann. § 49-1-302[(d)(2)(A)].” Instead, her challenge comes directly from section 49-5-409.
Consequently, it is unnecessary to determine whether the Brown factors would allow Plaintiff to assert a
cause of action under section 49-1-302(d)(2)(A).
        9
          While the trial court may have given a different analysis on the Plaintiff’s right of action, its
conclusion was the same as ours, so its decision may be affirmed. See Shutt v. Blount, 249 S.W.2d 904, 907
(Tenn. 1952) (stating “if the [t]rial [j]udge reached the right result for the wrong reason, there is no
reversible error”); Tolliver v. Tellico Vill. Prop. Owners Ass’n, 579 S.W.3d 8, 20 (Tenn. Ct. App. 2019).
                                                      -7-
       For the reasons stated herein, we affirm the circuit court’s decision to dismiss
Plaintiff’s claim and remand for further proceedings as may be necessary. Costs of this
appeal are taxed to appellant, Candice Mosby, for which execution may issue if necessary.



                                                _________________________________
                                                CARMA DENNIS MCGEE, JUDGE




                                          -8-
