                                                                                        09/28/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 June 6, 2018 Session

 NEDRA FINNEY V. FRANKLIN SPECIAL SCHOOL DISTRICT BOARD
                    OF EDUCATION, ET AL.

              Appeal from the Chancery Court for Williamson County
                  No. 45644    Joseph A. Woodruff, Chancellor


                            No. M2017-02080-COA-R3-CV


This is an appeal of the termination of a tenured teacher’s employment pursuant to the
Tenure Act, Tenn. Code Ann. §§ 49-5-501 to – 515. The Director of Schools of the
Franklin Special School District filed Charges for Dismissal of the tenured teacher on the
grounds of unprofessional conduct, incompetence, inefficiency, insubordination, and
neglect of duty. The charging document alleged multiple incidents of unprofessional
conduct based on a lack of adherence to required procedures, particularly in the area of
special education laws and procedures. It further alleged that the teacher was placed on a
Corrective Action Plan for the 2014-2015 school year, during which the teacher was
found to be in violation of the plan on multiple occasions. Moreover, at the end of the
2014-2015 school year, the teacher was suspended for three days without pay as a result
of an incident that occurred on May 11, 2015, during which the teacher improperly
restrained a special education student, which violated the student’s individualized
education plan. The charging document also identified, inter alia, an incident that
occurred on October 28, 2015, when the teacher got into a physical altercation with a
special education student who refused to return the teacher’s day planner and which
resulted in the two falling to the floor. Following an evidentiary hearing, the Impartial
Hearing Officer recommended dismissal on the grounds of unprofessional conduct. When
the school board voted to sustain the Hearing Officer’s decision, the teacher sought
review in chancery court. The chancery court affirmed the teacher’s dismissal based on
the grounds of unprofessional conduct and incompetence. This appeal followed. Because
the Hearing Officer did not find that the ground of incompetence had been proven, and
that decision was not appealed, the ground of incompetence was not before the court.
Therefore, it may not be considered as a ground for dismissal. However, we affirm the
decision to dismiss the tenured teacher’s employment with the school district on the
ground of unprofessional conduct.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and RICHARD H. DINKINS, JJ., joined.

J. Michael Clemmons, Nashville, Tennessee, for the appellant, Nedra Finney.

Charles W. Cagle and Brad W. Craig, Nashville, Tennessee, for the appellees, Franklin
Special School District Board of Education, Tim Stillings, Allena Bell, Alicia Spencer
Barker, Robert Blair, Robin Newman, Kevin Townsel, and Dr. David Snowden.

                                              OPINION

       The appellant, Nedra Finney, who had over 21 years of teaching experience, began
her employment as a special education teacher with the Franklin Special School District
(the “District”) at the beginning of the 2005-06 school year. She was initially assigned to
Moore Elementary School (“Moore Elementary”), where she taught for ten years until
being assigned to teach at Freedom Intermediate School (“Freedom Intermediate”). The
events that form the basis of Ms. Finney’s dismissal took place at both schools during
two academic years, the 2014-15 school year at Moore Elementary and the 2015-16
school year at Freedom Intermediate.

       On November 16, 2015, Dr. David L. Snowden, the Director of Schools for the
District, presented Charges for Dismissal to the Franklin Special School District Board of
Education (the “Board”) in which he recommended termination of Ms. Finney as a
tenured teacher. On the same day, the Board voted unanimously that if any of the charges
presented were true, then Ms. Finney’s dismissal was warranted. The Board also directed
Dr. Snowden to notify Ms. Finney of its action, which he did by letter dated November
17, 2015.1

        The Allegations of Fact set forth in the Charges for Dismissal read in pertinent
part:

        Ms. Finney is a special education teacher at Freedom Intermediate School.
        Over the course of the 2013-2014 school year, Ms. Finney demonstrated
        multiple incidents of unprofessional conduct including addressing
        colleagues and staff in a disrespectful tone, exhibiting a negative attitude,
        and displaying a lack of support for administrative decisions at the school,
        district and state levels. Another area of concern was Ms. Finney’s neglect
        1
          As stated in Elmi v. Cheatham Cty. Bd. of Educ., 546 S.W.3d 630 (Tenn. Ct. App. 2017), it is
relevant to note that the Board is not the charging party. Id. at 633 n. 2. The Director of Schools is the
charging party under Tenn. Code Ann. § 49–5–511, and the Board is the deciding body under Tenn. Code
Ann. § 49–5–512(b). Id. Nevertheless, it is the decision of the Board to terminate a tenured teacher’s
employment, which was based on the Impartial Hearing Officer’s ruling, that is at issue.


                                                  -2-
of duties as demonstrated by her lack of adherence to required procedures,
particularly in the area of special education laws and procedures.

As a result of these performance issues, Ms. Finney was placed on a
Corrective Action Plan for the 2014-2015 school year, which was aimed at
helping her improve these deficiencies. While Ms. Finney initially showed
some signs of improvement, her performance ultimately worsened as the
school year progressed. The escalation of Ms. Finney’s inappropriate
conduct prompted numerous staff members to express concerns to the
school administrators about Ms. Finney’s unacceptable comments,
behavior, and voice level towards her colleagues and her students.

During the 2014-2015 school year, Ms. Finney was found to be in violation
of her Corrective Action Plan on multiple occasions. For instance, on
March 24, 2015, Ms. Finney was issued a written reprimand as a result of
an incident where she interrupted another teacher who was in [the] middle
of teaching a class to communicate her displeasure with an administration
decision regarding the placement of a student. This incident occurred in the
presence of other students and was a direct violation of Ms. Finney’s
Corrective Action Plan, which required her to “communicate with all
school personnel — especially other professionals — in a manner that
demonstrates mutual respect and adheres to acceptable professional
boundaries.”

In addition, at the beginning of the 2015-2016 school year, Ms. Finney was
suspended for three days without pay as a result of an incident that occurred
on May 11, 2015, in which Ms. Finney improperly restrained a special
education student. While Ms. Finney initially denied the use of restraint on
the student, video evidence from the security cameras at the school clearly
confirmed Ms. Finney’s use of a restraint technique. Because this particular
student’s individualized education plan (“IEP”) did not provide for the use
of restraints, Ms. Finney’s actions were in violation of Board policy and
procedures, as well as state and federal law.

Then, on October 28, 2015, it was reported that Ms. Finney got into a
physical altercation with a student as a result of the student’s refusal to give
her a day planner that she had requested. Specifically, multiple teachers
witnessed Ms. Finney “wrestling” with the student over the planner until
both Ms. Finney and the student were on the floor. Ms. Finney and the
student continued to struggle, until another teacher intervened and told the
student to “stop it,” at which point the student stopped and sat down in one
of the chairs.


                                     -3-
      Despite the District’s efforts to improve Ms. Finney’s deficiencies, her
      overall performance has not improved. Instead, there have been multiple
      complaints over the past several years from Ms. Finney’s co-workers and
      parents regarding her job performance and unprofessional attitude,
      including, but not limited to, claims that she:

              Utilizes inappropriate behavior strategies with students
               including, but not limited to, the use of inappropriate
               restraint procedures;
              Demonstrates insubordination by openly disagreeing with
               school and district level policies and decisions;
              Refuses to allow free access to her classroom for
               professionals entering to observe and/or serve special
               education students;
              Fails to adhere to Board Policies and procedures,
               particularly in the area of special education laws and
               procedures;
              Demonstrated unprofessional conduct by refusing to
               acknowledge or interact with a student and his or her
               parent(s) at school reading night;
              Has used an inappropriate tone of voice with students by
               yelling on multiple occasions;
              Makes disparaging remarks to colleagues about other
               district professionals, parents, and student advocates;
              Refuses to use proven and appropriate strategies for
               students on the autism spectrum disorder;
              Became angry when other members of an IEP team
               suggested changes to her draft IEP; and
              Interrupted a therapy session to criticize the therapist’s
               technique in front of students and staff.

      A review of Ms. Finney’s unsatisfactory job performance, combined with
      her repeated violations of school board policies and procedures, confirm
      that Ms. Finney’s deficiencies are ongoing issues that have persisted
      despite the District’s repeated efforts to assist her.

        The charging document specified five statutory grounds under Tenn. Code Ann. §
49-5-501 for dismissing Ms. Finney: 1) unprofessional conduct, 2) incompetence, 3)
inefficiency, 4) insubordination, and 5) neglect of duty.

      After Ms. Finney requested a hearing pursuant to Tenn. Code Ann. § 49-5-512(a),
Dale Conder, Jr., an attorney in Jackson, Tennessee, was designated to serve as the

                                         -4-
Impartial Hearing Officer.2 The hearing took place over four days in April and May of
2016. The District presented numerous witnesses, which included teachers,
administrators, and parents, who testified to Ms. Finney’s disrespectful interactions with
co-workers and her unprofessional conduct in the classroom.

       The District also presented security camera footage of three incidents involving
Ms. Finney’s interaction with students. One of the videos pertained to Ms. Finney’s
alleged improper restraint of a special education student on May 11, 2015. Another video
concerned an incident that occurred on October 26, 2015, which showed Ms. Finney in a
physical altercation with a student in the hallway of Freedom Intermediate. The third
video recorded a physical altercation, a tug-of-war over a day planner, with a special
education student on October 28, 2015. For her case-in-chief, Ms. Finney testified, and
she presented three witnesses, two fellow teachers and a paraprofessional, who testified
on her behalf.

       At the conclusion of the hearing, the Hearing Officer directed the court reporter to
provide a transcript of the hearing and instructed both parties to submit proposed findings
of fact and conclusions of law. After receiving and reviewing the parties’ post hearing
submissions, the Hearing Officer filed his Findings of Fact and Conclusions of Law in
which he ruled that Ms. Finney’s dismissal was warranted on one of the five grounds
alleged, that of unprofessional conduct.3 In the conclusion, the Hearing Officer stated:

        Based on the testimony and the exhibits, I conclude that the Franklin
        Special School District met its burden of establishing its grounds for
        terminating Finney. The record establishes that Finney used a restraint hold
        on L.J. on May 11, 2015; she acted unprofessionally in Walker’s classroom
        in March 2015; she acted unprofessionally in October 2015 in the two
        incidents involving her physical struggle with the student at Freedom
        Intermediate School; and she acted unprofessionally in her dealings with
        Herren during her meeting with Herren and Larkin [on October 30]
        following the October incidents.

        Finally, the fact that these incidents occurred while Finney was under a
        corrective action plan designed to ameliorate this kind of behavior


        2
          “For the purposes of this part, ‘impartial’ means that the selected hearing officer shall have no
history of employment with the board or director of schools, no relationship with any board member and
no relationship with the teacher or representatives of the teacher.” Tenn. Code Ann. § 49-5-512(a)(3).
        3
           Although the Hearing Officer noted in his Findings of Fact and Conclusions of Law that five
grounds for dismissal were alleged in the charging document, the Hearing Officer did not find that the
District had proven the grounds of incompetence, inefficiency, insubordination, or neglect of duty.


                                                   -5-
        highlights Finney’s lack of professionalism. Therefore, the District has met
        its burden of establishing that it has grounds for terminating Finney.

       Ms. Finney timely appealed the Hearing Officer’s decision to the Board.4
Following a hearing before the Board on September 19, 2016, during which counsel for
the parties appeared and argued, the Board sustained the decision of the Hearing Officer
and terminated Ms. Finney’s employment as a tenured teacher in the District. Thereafter,
Ms. Finney sought review in the Williamson County Chancery Court by filing a petition
for a writ of certiorari in accordance with Tenn. Code Ann. § 49-5-513.

        In the de novo hearing before the chancery court, Ms. Finney argued that the
evidence did not support the finding that her conduct was unprofessional, as defined by
Tenn. Code Ann. § 49-5-501(3), with respect to any of the five incidents that formed the
basis of her dismissal. She also contended that she could not be dismissed for her actions
on October 26 and October 30 (the meeting with Herren and Larkin) because those
incidents were not specifically identified in the charging document. Ms. Finney also
contended that she could not be dismissed for her alleged actions on March 24 and May
11 because she had already been disciplined for those acts, receiving a written reprimand
for the March 24 incident and a three-day suspension for the May 11 incident.

       In addition to hearing arguments from counsel, the chancery court conducted a
review of the record before the Hearing Officer. Thereafter, the court entered an order
affirming the dismissal of Ms. Finney on two grounds, “unprofessional conduct” and
“incompetence.” The court found, inter alia, that although the charging instrument did
not specify the October 26 and October 30 incidents, Ms. Finney received adequate
notice of those charges “through proper discovery and pre-trial procedure.” Moreover,
the trial court found that Ms. Finney waived the issue by failing to object to the
admission of the evidence.

       The court ruled that the “cumulative nature” of Ms. Finney’s disrespectful
interactions with colleagues constituted unprofessional conduct under the Tenure Act.
Significantly, the court determined that “[s]tanding alone, each of the incidents captured
on video is a sufficient cause for dismissal.” Of the three, however, the court found the

        4
          “If the affected teacher desires to appeal from a decision rendered in whole or in part in favor of
the school system, the teacher shall first exhaust the administrative remedy of appealing the decision to
the board of education within ten (10) working days of the hearing officer’s delivery of the written
findings of fact, conclusions and decision to the affected employee.” Tenn. Code Ann. § 49–5–512(c)(1).
“Upon written notice of appeal, the director of schools shall prepare a copy of the proceedings, transcript,
documentary and other evidence presented and transmit the copy to the board. . . .” Tenn. Code Ann. §
49–5–512(c)(2). “The board shall hear the appeal on the record and no new evidence shall be introduced.”
Tenn. Code Ann. § 49–5–512(c)(3). “The board may sustain the decision, send the record back if
additional evidence is necessary, revise the penalty or reverse the decision.” Id.


                                                   -6-
“day planner” altercation, which occurred on October 28, 2015, “particularly
troublesome”:

          Not only is the interaction between Ms. Finney and her student a violation
          of both Ms. Finney’s [Corrective Action Plan] requirements and the
          student’s Behavioral Support Plan, it is, in itself, a blatant display of
          unprofessionalism. While Ms. Finney’s [Corrective Action Plan] mandated
          that she adhere to the required district, state, and federal procedures,
          physically engaging with this particular student was a direct violation of his
          Behavioral Support Plan which specifically prohibited educators from
          physical engagement. This encounter is especially egregious in light of the
          student’s disability and the teacher’s vast amount of experience. Beyond
          the sheer spectacle of this incident, most importantly, the student could
          have been injured during this interaction. The District could also have been
          subject to legal jeopardy if the student were injured in this struggle.

          Ms. Finney displayed a lack of professionalism through the manner in
          which she managed all three incidents recorded on the District’s security
          cameras, especially in light of her experience and specialized training.
          While Ms. Finney’s conduct, which occurred between 2014-2015, could
          arguably amount to several other causes for dismissal, it is most
          synonymous with behavior characterized as “unprofessional” and
          “incompetent.”

This appeal followed.

                                             ISSUES

          The issues before us, which we have rephrased, are as follows:

   I.        Did the trial court incorrectly conclude that Ms. Finney was guilty of
             incompetence?

   II.       Did the trial court err by failing to follow the de novo standard of review
             required under the Tenure Act?

   III.      Did the trial court err in considering alleged offenses that were not specifically
             stated in writing in the Charges for Dismissal as required under the Tenure
             Act?

   IV.       Did the trial court incorrectly conclude that Ms. Finney was guilty of
             unprofessional conduct?


                                              -7-
                                STANDARD OF REVIEW

       Under the Tenure Act, when a school board terminates a tenured teacher’s
employment, the teacher has the right to a chancery court review of the school board’s
decision. Tenn. Code Ann. § 49-5-512(c)(4).

       The standard by which courts review a school district’s decision to terminate a
tenured teacher has been modified significantly since 1992. As our Supreme Court
explained in 2017 in Emory v. Memphis City Schools Board of Education:

      In 1992, our legislature enacted comprehensive legislation related to
      education that included amendments to the Tenure Act. Among other
      things, the amendments required that teachers be provided “a full,
      complete, and impartial hearing before the board, including the right to
      have evidence ... included in the record of the hearing.” The Teachers’
      Tenure Act, ch. 535, 1992 Tenn. Pub. Acts (amending Tenn. Code Ann. §
      49-5-512). The amendments also mandated the preparation of a record of
      the hearing and directed that all actions by the school board be “reduced to
      writing and included in the record, together with all evidence otherwise
      submitted.” The Teachers’ Tenure Act, ch. 535, 1992 Tenn. Pub. Acts
      (amending Tenn. Code Ann.§ 49-5-512(a)(7)).

      In addition to mandating a hearing and the creation of a record, the 1992
      legislation also set forth a standard of judicial review of the decision that
      resulted from the school board hearing. Subsection (g) of Tennessee Code
      Annotated section 49-5-513 was amended to read:

             The review of the court shall be limited to the written record
             of the hearing before the board and any evidence or exhibits
             submitted at such hearing. Additional evidence or testimony
             shall not be admitted except as to establish arbitrary or
             capricious action or violation of statutory or constitutional
             rights by the board.

      The Teachers’ Tenure Act, ch. 535, 1992 Tenn. Pub. Acts (amending Tenn.
      Code Ann. § 49-5-513(g); see Wallace, 303 S.W.3d at 686-87 (Tenn. Ct.
      App. 2000) (noting the statutory change). Thus, the 1992 amendments
      changed the judicial review from a de novo hearing to a review of the
      written record of the school board hearing; it gave the chancery court
      limited authority to admit additional evidence only if needed to establish
      that the school board acted arbitrarily or capriciously or that the school
      board violated the teacher’s statutory or constitutional rights. See Tenn.
      Code Ann. § 49-5-513(g). The 1992 amendments led some appellate courts

                                          -8-
      to apply a common-law writ of certiorari standard of review, i.e., limited to
      the record to determine whether there was material evidence to support the
      school board’s decision, with new evidence admissible only on the issues of
      whether the school board exceeded its jurisdiction or acted illegally,
      arbitrarily or capriciously. See, e.g., Wallace, 303 S.W.3d at 687 (quoting
      Davison v. Carr, 659 S.W.2d 361, 363 (Tenn. 1983)); see also Winkler, 63
      S.W.3d at 381.

      In 2007, however, the legislature amended the Tenure Act to further
      address the standard of review. The 2007 amendment added language to
      section 49-5-512(c)(7), now codified at (c)(4). It stated that a party
      dissatisfied with the school board’s decision “shall have the right to appeal
      to the chancery court.” Tenn. Code Ann. § 49-5-512(c)(4) (2016). If such
      an appeal were filed, the school board was directed to transmit the record of
      its proceedings to the chancery court. The amendment then provided: “The
      review of the court shall be de novo on the record of the hearing held by the
      hearing officer and reviewed by the board.” Id.

      These statutes do not refer to either the common law or the statutory writ of
      certiorari. Reading section 49-5-512(c)(4) and section 49-5-513(g) together,
      however, 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 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.” Ripley,
      293 S.W.3d at 156 (citing Lee, 237 S.W.3d at 329). 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. New evidence is only admissible “to establish arbitrary or
      capricious action or violation of statutory or constitutional rights by the
      board.” Tenn. Code Ann. § 49-5-513(g).

514 S.W.3d 129, 140-42 (Tenn. 2017) (emphasis added). 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 chancellor’s decision pursuant to Rule 13(d) of the Tennessee Rules of

                                          -9-
Appellate Procedure “to determine whether the evidence preponderates in favor of the
chancery court’s findings of fact.” Id. at 142. Issues of law are reviewed de novo, with no
presumption of correctness given to the chancery court’s conclusions. Id.

                                              ANALYSIS

                             I.      THE GROUND OF INCOMPETENCE

       Ms. Finney contends the court erred in finding that the statutory ground of
incompetence had been proven.5 We have determined that the issue of incompetence was
not properly before the trial court; therefore, the court erred by holding that the ground of
incompetence had been proven.

        Under the Tenure Act, the plaintiff’s petition for writ of certiorari serves as the
plaintiff’s pleading. See Cooper v. Williamson Cty. Bd. of Educ., 746 S.W.2d 176, 182
(Tenn. 1987). It “raises the issues for review, stating the substance of the board’s actions
and the errors made by the board in its decision.” Id. Our Supreme Court has explained
that “the primary purpose of pleadings is to provide notice of the issues presented to the
opposing party and court.” Webb v. Nashville Area Habitat for Humanity, Inc., 346
S.W.3d 422, 426 (Tenn. 2011). Therefore, “a judgment beyond the scope of the pleadings
is beyond the notice given the parties and…should not be enforced.” Clark v. Sputniks,
LLC, 368 S.W.3d 431, 440 (Tenn. 2012) (quoting Brown v. Brown, 281 S.W.2d 492, 497
(Tenn. 1955)).

       The Notice for Dismissal asserted five statutory grounds for dismissal:
unprofessional conduct, incompetence, inefficiency, insubordination, and neglect of duty.
After a hearing on the charges, the Hearing Officer found that the District proved the
ground of unprofessional conduct, and on that basis, the District met its burden of
establishing a ground for terminating Ms. Finney. Significantly, the Hearing Officer did
not find that the District proved any other ground, only unprofessional conduct.

       After the Board sustained the Hearing Officer’s decision to terminate Ms. Finney
as a tenured teacher on the ground of unprofessional conduct, Ms. Finney sought review
in the Williamson County Chancery Court by filing a petition for a writ of certiorari in
accordance with Tenn. Code Ann. § 49-5-513. In her petition, Ms. Finney contended that
the evidence was insufficient to support the finding that she engaged in unprofessional

        5
           Tennessee Code Annotated section 49-5-501(5) defines “incompetence” to mean: “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.”


                                                 - 10 -
conduct or that her employment should be terminated. Although the District had the right
to also challenge the decision, it did not. See Tenn. Code Ann. § 49-5-512(c)(4) (“Any
party dissatisfied with the decision rendered by the board shall have the right to appeal to
the chancery court….”). Thus, the issues were limited to whether Ms. Finney engaged in
unprofessional conduct for which she could be dismissed as a tenured teacher.
Nevertheless, the trial court determined that Ms. Finney’s conduct was “most
synonymous with behavior categorized as ‘unprofessional’ and ‘incompetent.’”

       A de novo review under the Tenure Act by the chancery court is limited to the
issues before the court. Cooper, 746 S.W.2d at 182. As explained in Cooper, “In the
Chancery Court, the plaintiff’s petition raises the issues for review, stating the
substance of the board’s actions and the errors made by the board in its decision,” and
“the Chancellor then entertains arguments and considers the evidence presented in
Chancery Court to decide the issues raised on their merits to determine whether the
board’s action was justified.” Id. (emphasis added). Neither Ms. Finney nor the Board
raised the issue of incompetence; accordingly, the ground of incompetence was beyond
the scope of the pleadings. See Clark, 368 S.W.3d at 440; see also Brown, 281 S.W.2d at
497. Therefore, we reverse the trial court’s determination that the ground of
incompetence was proven.

                    II.    DE NOVO REVIEW UNDER THE TENURE ACT

       Tennessee Code Annotated section 49-5-512(c)(4) states that any party dissatisfied
with the decision rendered by the board shall have the right to appeal to the chancery
court where “[t]he review of the court shall be de novo on the record of the hearing held
by the hearing officer and reviewed by the board.” As we discussed in more detail earlier
in this opinion, “[t]he chancery court’s review . . . 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.” Emory, 514 S.W.3d at 141-42 (quoting Ripley
v. Anderson Cty. Bd. of Educ., 293 S.W.3d 154, 156 (Tenn. Ct. App. 2008)).

       This form of judicial review requires the chancery court to make a fresh and
independent determination of both the facts and the law. Cooper, 746 S.W.2d at 181. It is
not sufficient for the chancery court to determine whether the evidence preponderates in
favor of the Hearing Officer’s decision. Id. As Cooper explained:

       [T]he scope of review in the Chancery Court is not confined to a
       determination of whether the evidence preponderates in favor of the
       determination of the administrative board and no presumption of
       correctness attaches to the decision of the school board. . . . We think that a
       hearing de novo requires the Chancellor to redetermine both the facts and
       the law from all the evidence before the court. While not fully analogous,

                                           - 11 -
       this type of review is more akin to an appeal from General Sessions Court
       pursuant to [Tenn. Code Ann.] § 19-1-118….

Id.

       Ms. Finney argues that the Chancellor applied an incorrect standard of review.
This contention is based on statements made by the Chancellor in the final order. For
example, the Chancellor stated: “It is not the job of the trial court to reweigh the
evidence; rather, the Court must determine whether the Hearing Officer had enough
evidence to support his decision,” and “the fact that [the hearing officer] found the
District’s witnesses to be more credible is a determination that deserves deference.” As
we explain below, although the foregoing and similar statements erroneously identify the
applicable standard of review, we find the errors harmless. The final order reveals that the
Chancellor made numerous material findings of fact that were based on his independent
determination of the facts and the credibility of key witnesses, which we find sufficient to
affirm the determination that Ms. Finney engaged in unprofessional conduct on numerous
occasions.

                                            A.

      Although the order reads “[i]t is not the job of the trial court to reweigh the
evidence,” the same order states the correct standard of review in more detail:

       In cases brought under the Tenure Act, “[t]he review of the court shall be
       de novo on the record of the hearing held by the hearing officer and
       reviewed by the board.” Id. The “chancery court’s review, as contemplated
       by [§ 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.” Emory, 514 S.W.3d at 140 (citing
       Ripley, 293 S.W.3d at 156).

       Moreover, several findings by the Chancellor reveal that he did not always defer to
the findings by the Hearing Officer or review them with a presumption of correctness. To
the contrary, the Chancellor made numerous independent determinations of substantive
and material facts. For example:

       The record clearly establishes that, over the course of two years, Ms.
       Finney also exhibited conduct that is generally “unbecoming to a member
       of the teaching profession.” Tenn. Code Ann. § 49-5-501(3). With the
       implementation of the District [sic], the District began to recognize that Ms.
       Finney’s conduct left much to be desired in the realm of professionalism,
       and did not characterize the positive and collaborative environment that

                                           - 12 -
FSSD wished to promote within its school system. Even after extending
Ms. Finney’s [Corrective Action Plan] for the following school year, her
negative interactions with students and other teachers continued. The
statute’s list of conduct which could illustrate “unprofessionalism” is non-
exhaustive. This Court finds that the cumulative nature of Ms. Finney’s
improper interactions with her students, and between Ms. Finney and her
colleagues meets the statutory burden to prove “unprofessional conduct.”

                               .      .      .

The unlawful restraint that Ms. Finney exercised on May 11, 2015 was in
direct violation of state and federal law, as well as local policy surrounding
the use of restraint on students who have disabilities….

This Court agrees with the Hearing Officer’s determination that the October
28, 2015 “planner” incident is also particularly troublesome. Not only is the
interaction between Ms. Finney and her student a violation of both Ms.
Finney’s [Corrective Action Plan] requirements and the student’s
Behavioral Support Plan, it is, in itself, a blatant display of
unprofessionalism. While Ms. Finney’s [Corrective Action Plan] mandated
that she adhere to the required district, state, and federal procedures,
physically engaging with this particular student was a direct violation of his
Behavioral Support Plan which specifically prohibited educators from
physical engagement. This encounter is especially egregious in light of the
student’s disability and the teacher’s vast amount of experience. Beyond
the sheer spectacle of this incident, most importantly, the student could
have been injured during this interaction. The District could also have been
subject to legal jeopardy if the student were injured in this struggle.

Ms. Finney displayed a lack of professionalism through the manner in
which she managed all three incidents recorded on the District’s security
cameras, especially in light of her experience and specialized training.
While Ms. Finney’s conduct, which occurred between 2014- 2015, could
arguably amount to several other causes for dismissal, it is most
synonymous with behavior categorized as “unprofessional” and
“incompetent.” The sheer number of education professionals who voiced
their concerns through testimony at trial, as well as the corroboration of Ms.
Finney’s intimidating and unprofessional behavior by parents of Ms.
Finney’s students who felt obliged to voice their concerns, demonstrates
that the witnesses’ perception of Ms. Finney’s conduct was not simply
based on personal opinion. The record is replete with evidence meeting the
statutory requirement for dismissal based on Ms. Finney’s pattern of
unprofessional interactions and incompetence.

                                    - 13 -
        We also note that the Chancellor’s statement in the third paragraph above that
“[t]his Court agrees with the Hearing Officer’s determination that the October 28, 2015
‘planner’ incident is also particularly troublesome” is not in conflict with the applicable
standard of review. Agreeing with the Hearing Officer’s findings is very different from
deferring to the factual determinations. It is also very different from reviewing the
Hearing Officer’s factual determinations with a presumption that the evidence
preponderates in favor of the findings. The Chancellor agreeing with the Hearing
Officer’s determination is synonymous with saying the court made an independent
review of the relevant evidence and came to the same conclusion, which is the proper
standard of review. Thus, although the Chancellor erroneously deferred to some of the
findings by the Hearing Officer, the record reveals that the Chancellor conducted an
independent review of substantial and material evidence and came to his own
conclusions, which is proper.

                                            B.

       Ms. Finney also contends the trial court improperly gave deference to the Hearing
Officer’s credibility determinations.

       Like an appeal from General Sessions Court, the chancery court in a Tenure Act
case must make a fresh determination of the facts and the law. However, unlike an appeal
from General Sessions Court where the circuit court hears and observes live witnesses,
the chancery court’s review under the Tenure Act is “limited to the written record of the
hearing before the board and any evidence or exhibits submitted at such a hearing.” Tenn.
Code Ann. § 49-5-513(g). Accordingly, the Chancellor was deprived of the opportunity
to observe live testimony during the appeal of this matter. Nevertheless, the Chancellor
could still make his own credibility determinations based on the record, which included
not only the transcript of the evidence but also video recordings of Ms. Finney’s
interactions with students and exhibits for which the Chancellor had the same ability to
observe as did the Hearing Officer.

       Furthermore, credibility determinations are not limited to observing a witness as
he or she testifies in one’s presence. As the Tennessee Pattern Jury Instructions state,
“[i]n deciding which testimony you believe, you should rely on your own common sense
and everyday experience.” T.P.I. – CIVIL 2.20 Credibility of Witness, 8 Tenn. Prac.
Pattern Jury Instr. (2018 ed.). The pattern instructions further state:

       There is no fixed set of rules to use in deciding whether you believe a
       witness, but it may help you to think about the following questions:

              1. Was the witness able to see, hear, or be aware of the things
              about which the witness testified?

                                          - 14 -
             2. How well was the witness able to recall and describe those
             things?
             3. How long was the witness watching or listening?
             4. Was the witness distracted in any way?
             5. Did the witness have a good memory?
                                      .        .      .
             7. Was the witness making an honest effort to tell the truth,
             or did the witness evade questions?
             8. Did the witness have any interest in the outcome of the
             case?
             9. Did the witness have any motive, bias or prejudice that
             would influence the witness’ testimony?
             10. How reasonable was the witness’ testimony when you
             consider all of the evidence in the case?
             11. Was the witness’ testimony contradicted by what that
             witness has said or done at another time, by the testimony of
             other witnesses, or by other evidence?
             12. Has there been evidence regarding the witness’
             intelligence, respectability, or reputation for truthfulness?

Id.

      The Tennessee Supreme Court explains the differences between credibility
determinations that are made after observing live testimony versus credibility
determinations that are based on a reading of the cold record and documentation:

      Unlike appellate courts, trial courts are able to observe witnesses as they
      testify and to assess their demeanor, which best situates trial judges to
      evaluate witness credibility. Thus, trial courts are in the most favorable
      position to resolve factual disputes hinging on credibility determinations.
      Accordingly, appellate courts will not re-evaluate a trial judge’s assessment
      of witness credibility absent clear and convincing evidence to the contrary.

      In contrast, appellate review of documentary proof, such as depositions or
      other forms of testimony presented to the trial court in a “cold” record,
      differs considerably. When reviewing documentary proof, all impressions
      of weight and credibility are drawn from the contents of the evidence, and
      not from the appearance of witnesses and oral testimony at trial. As a result,
      appellate courts may make an independent assessment of the credibility of
      the documentary proof it reviews, without affording deference to the trial
      court’s findings.



                                          - 15 -
Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783-84 (Tenn. 1999) (citations
omitted).

        Although Ms. Finney contends the Chancellor deferred to the credibility findings
of the Hearing Officer, the only material “credibility” finding the Hearing Officer made
was that the testimony of special education teacher Betsy Bagsby-Disch was “most
credible.” However, it is significant to note that the Hearing Officer’s credibility finding
hinged on her “expertise,” which was based on her education, certifications, and
experience, not on her demeanor while testifying. Moreover, the Chancellor expressly
stated that he credited the testimony of Ms. Bagby-Disch regarding Ms. Finney’s alleged
use of an illegal restraint based on her expertise in the area of child restraint. As a
consequence, although the Chancellor stated that he would defer to the Hearing Officer’s
credibility findings, the Chancellor was in just as good a position to make an independent
credibility finding for the same reason, her expertise.

      The record also reveals that the Chancellor made his own, independent
determinations regarding the persuasiveness of evidence or credibility of other witnesses
based on the record before him. For example, the Chancellor stated:

       While Ms. Finney did have relationships with other co-workers that were
       not acrimonious, the presentation of testimony by co-workers who were
       also Ms. Finney’s friends draws away from their credibility as witnesses.
       Not only were those particular teachers who testified in Ms. Finney’s favor
       her friends, both also maintained their own classrooms. It would make
       sense that neither witness had seen Ms. Finney use an improper restraint
       procedure because they were not in her classroom on a day-to-day basis.
       Several of the District’s witnesses, on the other hand, worked in Ms.
       Finney’s classroom and had a more intimate knowledge of Ms. Finney’s
       behaviors with her students.

       Although the Chancellor stated that he deferred to the credibility findings of the
Hearing Officer, this error does not entitle Ms. Finney to relief. As our rules of appellate
procedure clearly provide, “[a] final judgment from which relief is available . . . shall not
be set aside unless, considering the whole record, error involving a substantial right more
probably than not affected the judgment or would result in prejudice to the judicial
process.” Tenn. R. App. P. 36(b). Based on our observations above, we are unable to
conclude that the error of deferring to the credibility findings of the Hearing Officer more
probably than not affected the judgment or resulted in prejudice to Ms. Finney.
Accordingly, to the extent the Chancellor erred, it was harmless.




                                           - 16 -
                                    III.    DUE PROCESS

       Ms. Finney contends the District did not identify the incidents on October 26 (the
altercation in the hallway of Freedom Intermediate) and October 30, 2015 (the meeting
with Herren and Larkin) in the charging document; therefore, these two incidents cannot
form the basis of her dismissal. The District contends it provided adequate notice, and
Ms. Finney waived the issue by not objecting to the admission of the evidence at the
hearing.

       The Fourteenth Amendment to the United States Constitution provides, in
pertinent part, that no state shall “deprive any person of life, liberty, or property, without
due process of law.” Tenured teachers possess “a constitutionally protected property
interest in continued employment,” and the state cannot deprive them of this right without
procedural due process. Thompson v. Memphis City Schools Bd. of Educ., 395 S.W.3d
616, 627 (Tenn. 2012). At minimum, due process “entitles a tenured teacher to pre-
termination notice of the charges against her, an explanation of the employer’s evidence,
and an opportunity to present her side of the story to her employer.” Id. Therefore, under
the Tenure Act, the Board cannot dismiss a tenured teacher unless it provides the teacher
with a written copy of the charges, “specifically stating the offenses that are charged.”
Tenn. Code Ann. § 49-5-511(a)(4) (emphasis added).

       While the notice of charges need not possess the “technical nicety required in
indictments,” it must be “sufficient in substance and form to fairly apprise the teacher of
the charge against [her] and enable [her] to prepare [her] defense in advance of the
hearing.” Turk v. Franklin Special Sch. Dist., 640 S.W.2d 218, 220 (Tenn. 1982) (quoting
Potts v. Gibson, 469 S.W.2d 130 (Tenn. 1971). Accordingly, the school board’s charging
document must include a list of the charges and the factual allegations supporting them.
See Taylor v. Clarksville Montgomery Cty. Sch. Sys., No. M2009-02116-COA-R3-CV,
2010 WL 3245281, at *5 (Tenn. Ct. App. Aug. 17, 2010).

                                           A. Waiver

       The Chancellor determined that Ms. Finney waived the due process issue as to
both incidents by failing to object to the admission of the evidence at the hearing. We
respectfully disagree.

       Tennessee Code Annotated section 49-5-512(a)(4) provides that all parties shall
have “the right to have evidence deemed relevant by the submitting party included in the
record of the hearing, even if objected to by the opposing party.” Consequently, had Ms.
Finney objected to the admission of the evidence at the hearing, the Hearing Officer
would have admitted it nonetheless. Significantly, while all “evidence deemed relevant
by the submitting party” is admissible at the hearing, this does not mean that all evidence
may be considered when the Hearing Officer or the court rules on the issues presented.

                                             - 17 -
As previously stated, due process considerations require that incidents or issues to be
tried must be sufficiently identified in the Charges for Dismissal. Thompson, 395 S.W.3d
at 627; Tenn. Code Ann. § 49-5-511(a)(4). Therefore, Ms. Finney did not waive the due
process issue by failing to object to the admission of the evidence at the hearing.
Moreover, Ms. Finney raised the issue in her pre-hearing memorandum and in her post-
hearing memorandum, which the Hearing Officer requested prior to rendering his
decision.

                        B. October 26, 2015 Hallway Altercation

      On October 26, 2015, in an incident captured on video, Ms. Finney was involved
in a physical altercation with a special education student in the hallway of Freedom
Intermediate.

       As Ms. Finney correctly notes, the charging document does not reference an
October 26, 2015 incident; however, it specifically identifies the dates of two other
incidents. The relevant provisions as stated in the Allegations of Fact in the Charges for
Dismissal read as follows:

      In addition, at the beginning of the 2015-2016 school year, Ms. Finney was
      suspended for three days without pay as a result of an incident that
      occurred on May 11, 2015, in which Ms. Finney improperly restrained
      a special education student. While Ms. Finney initially denied the use
      of restraint on the student, video evidence from the security cameras at
      the school clearly confirmed Ms. Finney’s use of a restraint technique.
      Because this particular student’s individualized education plan (“IEP”) did
      not provide for the use of restraints, Ms. Finney’s actions were in violation
      of Board policy and procedures, as well as state and federal law.

      Then, on October 28, 2015, it was reported that Ms. Finney got into a
      physical altercation with a student as a result of the student’s refusal to
      give her a day planner that she had requested. Specifically, multiple
      teachers witnessed Ms. Finney “wrestling” with the student over the
      planner until both Ms. Finney and the student were on the floor. Ms. Finney
      and the student continued to struggle, until another teacher intervened and
      told the student to “stop it,” at which point the student stopped and sat
      down in one of the chairs.

(Emphasis added). Thus, Ms. Finney was given notice “sufficient in substance and form”
to fairly apprise her of the charges as they relate to the May 11 and October 28, 2015
incidents. See Turk, 640 S.W.2d at 220; see also Potts, 469 S.W.2d at 133.



                                          - 18 -
       As for the October 26 incident, the Notice of Charges was less specific, alleging
that

       there have been multiple complaints over the past several years from Ms.
       Finney’s co-workers and parents regarding her job performance and
       unprofessional attitude, including, but not limited to, claims that she:

               Utilizes inappropriate behavior strategies with students
                including, but not limited to, the use of inappropriate
                restraint procedures;

       Here, the District could have identified the October 26 incident as it did the May
11 and October 28 incidents by providing the date and a detailed description, though we
emphasize that the Tenure Act does not mandate that level of specificity. As previously
stated, the charging document need not possess the “technical nicety required in
indictments.” Turk, 640 S.W.2d at 220.

        For example, in Taylor v. Clarksville Montgomery County School System, we
ruled that a less than specific identification of probative evidence provided sufficient
notice.

       [Mr.] Taylor cites to Turk v. Franklin Special School District, 640 S.W.2d
       218 (Tenn. 1982) to support his contention that he should have been put on
       notice of the content of Detective Webb’s testimony. The facts of Turk are
       quite different than the facts here and appellant’s reliance on that case is
       misplaced.

       Here, the Charges of Dismissal made against Taylor set forth specifically
       the charges made against him and the factual allegations that supported
       those charges. The factual allegations contained in the Charges of
       Dismissal were the kiss, the “I love you notes”, hugs to students and telling
       students “I love you” or similar statements. The facts included in the
       Charges were the exact facts that [were] testified to by Detective Webb.
       This issue is without merit.

2010 WL 3245281, at *5. In Taylor, the school district did not provide dates or detailed
descriptions, but it did provide the teacher with general notice of consistent conduct, e.g.
“I love you notes” and telling students “I love you.” Likewise, in this case, while it was
not necessary for the District to give a specific date or to give extensive details about the
October 26 incident, the District should have, at minimum, identified the inappropriate
behavior strategy at issue. For example, the District would have provided sufficient
notice had the District alleged that Ms. Finney utilized inappropriate behavior strategies
by engaging in physical altercations with students.

                                           - 19 -
       Moreover, we have determined that other actions of the District required the
exclusion of evidence. On January 28, 2016, a few months prior to the hearing, Ms.
Finney requested the October 26 video recording. In response to this request, the District
assured her that the video had nothing to do with the charges against her, stating:

       With respect to the requests for video footage for the week of Oct. 5th; Oct.
       26th; and Oct. 29th, there has been no articulation by opposing counsel that
       this footage bears any relevance to the due process hearing. Ms. Finney was
       not disciplined as a result of any of the incidents that allegedly occurred on
       these dates and none of them are referenced in the Charges for Dismissal.
       Until Ms. Finney’s [sic] offers some type of explanation as to why the
       requested videos from Oct. 5th; Oct. 26th; and Oct. 29th, are relevant to
       these proceedings, the District is left to guess at its own peril as to what the
       potential relevance of these videos might be.

        Based on the District’s foregoing representations, evidence concerning the
October 26 incident should not have been considered when deciding whether Ms.
Finney’s actions constituted unprofessional conduct. Accordingly, we will not consider
that incident.

                               C. October 30, 2015 Meeting

       On October 30, 2015, Ms. Finney met with Beth Herren, a special education
supervisor for the District, and Louise Larkin, the principal at Freedom Intermediate, to
discuss the “day planner” incident captured on video on October 28. On rebuttal, Ms.
Larkin testified that Ms. Finney addressed Ms. Herren in a disrespectful and hostile
manner at that meeting.

       Like the October 26 incident, the charging document did not identify this meeting
by providing a date, the identity of the participants, or a general description of the
meeting. Instead, the charging document merely alleged that Ms. Finney had
disrespectful interactions with other professionals. As such, we have determined that this
charge was too vague to allow Ms. Finney to prepare a defense against this particular
allegation. As previously stated, due process requires the District to identify, more
specifically, the actions or omissions at issue.

        Also noteworthy, the District did not introduce evidence of Ms. Finney’s behavior
in this meeting in its case-in-chief, only in rebuttal, which suggests that for the District,
this incident was merely an afterthought, not a basis of the Charges for Dismissal.




                                            - 20 -
                                 IV.     UNPROFESSIONAL CONDUCT

        Ms. Finney argues that the District failed to prove the ground of unprofessional
conduct based on her actions on March 24, 2015 (classroom interruption), May 11, 2015
(restraint in hallway) and October 28, 2015 (day planner incident). She argues, inter alia,
that she was already disciplined for the March 24 and May 11, 2015 incidents; therefore,
she cannot be punished a second time for these actions. She also argues that even if the
court could consider her conduct on those dates, as well as her conduct on October 28,
the Board did not prove that her actions amounted to unprofessional conduct as defined
by the Tenure Act.

       We have determined that Ms. Finney’s argument is misplaced, because the
Chancellor’s decision was principally based on the October 28, 2015 incident, for which
she had not been previously disciplined, and on significant and material evidence of Ms.
Finney’s unprofessional conduct that was unrelated to the March 24, 2015 (classroom
interruption) and May 11, 2015 (restraint in hallway) incidents.

       A tenured teacher may be dismissed for unprofessional conduct. Tenn. Code Ann.
§ 49-5-511(2). Unprofessional conduct is “conduct that violates the rules or ethical code
of a profession or that is unbecoming a member of a profession in good standing, or
which indicates a teacher’s unfitness to teach.” Morris v. Clarksville-Montgomery Cty.
Consol. Bd. of Educ., 867 S.W.2d 324, 329 (Tenn. Ct. App. 1993) (citing 68 Am. Jur.2d
Schools § 161 (1993)).

       Tennessee Code Annotated section 49-5-501(3) lists five factors in its definition of
“conduct unbecoming to a member of the teaching profession.”6 The one relevant here
reads: “Disregard of the teacher code of ethics in part 10 of this chapter, in such manner
as to make one obnoxious as a member of the profession.” Tenn. Code Ann. § 49-5-
501(3)(D).7 Pertinent here, the Teacher Code of Ethics states that an educator “[s]hall
make reasonable efforts to protect the student from conditions harmful to learning or to
health and safety.” Taylor, 2010 WL 3245281 at *8 (quoting Tenn. Code Ann. § 49-5-
1003(b)(7)).8


        6
          Tennessee Code Annotated section 49-5-501 uses the terms “unprofessional conduct” and
“conduct unbecoming a member of the teaching profession” interchangeably.
        7
          While the court is not limited to the factors listed in the statutory definition, the factors “are a
good starting point for the analysis of whether the material evidence supports the Trial Court’s finding of
unprofessional conduct.” Taylor, 2010 WL 3245281 at *8.
        8
        Legislation enacted on July 1, 2018, amended the language of Tenn. Code Ann. § 49-5-1003.
2018 Tenn. Pub. Acts Ch. 937.


                                                   - 21 -
       The Hearing Officer found the actions of Ms. Finney on March 24, May 11, and
October 28, 2015 proved the ground of unprofessional conduct. The Chancellor found
that the October 28, 2015 incident, standing alone, was sufficient to prove the ground of
unprofessional conduct. Nevertheless, the Chancellor also relied on other incidents and
evidence to conclude that Ms. Finney’s actions constituted unprofessional conduct for
which her employment should be terminated.

                    A. The October 28, 2015 “Day Planner” Incident

       On October 28, 2015, in an incident captured on video, Ms. Finney was involved
in a physical altercation with a special education student over a day planner at Freedom
Intermediate. After reviewing the video footage of October 28, as well as the testimony in
the record, the trial court determined that Ms. Finney was guilty of unprofessional
conduct.

       The video shows Ms. Finney and a special education student engaged in a physical
struggle over a day planner that resembled a tug-of-war combined with a wrestling
match. In the video, the student entered a main office first, and when Ms. Finney entered,
the student placed the planner on a chair and sat down on top of it so that part of the
planner protruded from underneath him. Ms. Finney briskly walked over and grabbed the
planner. Both Ms. Finney and the student continued holding onto the planner in an
attempt to pull it from the other. This struggle led both Ms. Finney and the student
against the wall and onto the floor while both still held on to the planner. The incident
ended with the student jumping up and returning to the chair and Ms. Finney getting up
and walking out of the room with the planner.

       The special education student had a behavior support plan that outlined
disciplinary steps for an educator to take in the event of a behavioral problem. The
outlined intervention for this student was a “three strikes program.” The three strikes
program was designed so that, first, the student received a warning from the educator in
the form of a “yellow card.” The plan was for the teacher to immediately display the card,
the intent of which was to calm the situation without further action. Second, if the yellow
card was ineffective, the educator was to escort the student to a calm-down room. The
plan warns that the student gets “more ‘wound up’ when he starts moving and getting
physical.” If these two actions do not resolve the problem, the student may be sent to in-
school suspension or home.

        Ms. Finney testified that she signed this student’s behavior support plan and that
she was familiar with it; however, when the student took the planner from her on October
28, she decided to “try something different.” Ms. Finney stated that she grabbed the
planner and, as the student attempted to pull the planner from her hands, she “just didn’t
let go. And he jerked this way (indicating) and that way, and I just simply kept my hands
clenched.”

                                          - 22 -
       Ms. Finney explained, “I’m moving over to the wall because I had just gotten
results of a bone density test and the bones in my hip were thinning. And if I fall, the
most likely place for me to fall is on my hips.” According to Ms. Finney, she was moving
to the wall in preparation of going down on the floor with the student “because the best
way to keep from falling is to get on the floor.” Ms. Finney further stated that “[t]he only
motion I’m making is I’m simply clinching my fingers around the spiral binding . . . I slid
down, trying to get in the corner. And he jerked it and pulled me over.”

        Angela Tisdale, a sixth-grade teacher at Freedom Intermediate, testified that she
entered the office when Ms. Finney and the student were already on the floor. She
“observed two individuals wrestling over an object in the corner of the office.” According
to Ms. Tisdale, when Ms. Finney and the student were on the floor, she saw “pulling of
the notebook” and “the natural movement that two bodies would have when they’re
trying to get positioned.” Ms. Tisdale testified that Ms. Finney was not trying to stop the
situation. It was not until someone in the office threatened to call the principal that the
student jumped up and sat back down in the chair, which ended the incident.

       Special education teacher, Betsy Bagsby-Disch, also testified. She worked with
this specific student for the previous two years and stated that that the incident “was not
in keeping with [the student’s] behavior support plan,” which she described as “very
effective.” According to Ms. Bagsby-Disch, the appropriate intervention in the planner
incident would include “giving or showing the student a yellow card” instead of using
force to take the planner.

        When reviewing the student’s behavior support plan, Ms. Bagsby-Disch testified
that this student “tends to increase his behavior levels and escalates more with physical
engagement.” She further explained that because the student’s behavior during the
planner incident was “not disruptive to a classroom setting … or appear[ed] to be moving
toward becoming a threat to his safety and safety of others,” engaging in a physical
power struggle over the planner was not appropriate.

        Four education professionals, Angela Tisdale, Betsy Bagsby-Disch, Beth Herren,
special education supervisor, and Louise Larkin, principal of Freedom Intermediate, all
testified that Ms. Finney’s actions were highly inappropriate for a teacher in Ms. Finney’s
position. For example, Ms. Tisdale testified:

       In any situation, you don’t want to put yourself in a position where you’re
       engaged in a physical altercation over a planner or anything else with a
       student. There [are] too many things that could go wrong. You could harm
       the student. You could hurt yourself. You put yourself in a very precarious
       situation as a teacher to do that.


                                           - 23 -
Additionally, Ms. Herren, testified:

       Oh, you wouldn’t – you wouldn’t need to have any kind of restraint training
       or nonverbal crisis intervention training to know not to get into a power
       struggle with a student, I mean, over a piece of paper….I felt like Ms.
       Finney was a ticking time bomb.

       Considering the disturbing and undeniable video footage of the physical struggle
in the main office of the school as well as the compelling testimony of several
professional educators who witnessed the incident in person or on tape, the evidence in
the record preponderates in favor of the Chancellor’s determination that Ms. Finney’s
behavior on October 28 was “unbecoming a member of a profession in good standing.”
Further, Ms. Finney violated the Teacher Code of Ethics, which requires teachers to
“make reasonable effort to protect the student from conditions harmful to learning or to
health and safety.” Tenn. Code Ann. § 49-5-1003(b)(7). As Ms. Finney admitted, she
knew the risk of injury involved when she decided to physically engage this student over
a planner but thought the best way to avoid harming herself and this child was to move
the altercation to the floor. To the contrary, the safest and most professional alternative
was to avoid a physical confrontation altogether by following the “three strikes” protocol.

        The Chancellor correctly found that “[b]eyond the sheer spectacle” of the October
28 incident, Ms. Finney risked harming the special education student and she risked
subjecting the District to liability as a result. Moreover, it is also significant that the
October 28 incident constituted a violation of Ms. Finney’s Corrective Action Plan,
which required Ms. Finney to follow special education procedures, as well as a violation
of the special education student’s behavior support plan.

       Accordingly, we affirm the Chancellor’s determination that the October 28, 2015
incident, standing alone, was sufficient to prove the ground of unprofessional conduct.

       Although we concur with the Chancellor’s determination that this incident alone is
sufficient to prove the ground of unprofessional conduct, we shall also address the March
24, 2015 incident.

                       B. The March 24, 2015 Classroom Incident

       Ms. Finney argues that she had already been punished for the March 24 incident;
therefore, she cannot be disciplined twice for her actions on March 24. The trial court did
not address whether Ms. Finney had been previously disciplined for this incident; instead,
it ruled that the “cumulative nature” of Ms. Finney’s disrespectful interactions with
colleagues, which included the March 24 incident, constituted unprofessional conduct
under the Tenure Act.


                                          - 24 -
       A public employee should not be disciplined twice for the same action, Cope v.
Tennessee Civil Serv. Comm’n, No. M2008-01229-COA-R3-CV, 2009 WL 1635140, at
*6 (Tenn. Ct. App. Jun. 10, 2009), and a written reprimand may constitute a disciplinary
action if it disciplines the recipient for specific conduct. See id. at *8. To determine
whether the written reprimand constituted a disciplinary action, the court should consider
the written reprimand as well as the surrounding circumstances. See id. at *7-8.

      The written reprimand for the March 24, 2015 incident states:

      Account of Incident:

      Mrs. Finney entered Mrs. Walker’s classroom around 8:45 a.m. today. Mrs.
      Walker was at her Promethean board teaching a lesson to her class. Mrs.
      Finney proceeded to interrupt her and began talking loudly to her from
      across the classroom. Mrs. Finney was visibly angry in regards to a
      schedule change made by administration for a student who is in Mrs.
      Finney’s class, but has inclusion in Mrs. Walker’s classroom. Mrs. Finney
      said she was disappointed in the line of communication and the route it
      took. Other statements to this effect were said by Mrs. Finney. She stated
      that she believed in natural consequences and “there you have it.” Then she
      quickly turned around and left the room. This incident took place in front of
      a classroom of first graders. Communication with a peer in regards to a
      student should have been made in private and at a time when students were
      not present.

      This incident is in direct violation to the plan of corrective action as agreed
      upon on August 28, 2014. The area of concern cited is the following:

      Unprofessional conduct as demonstrated by: Addressing any staff –
      including professional educators, outside consultants, and/or any school or
      district level supervisors in a disrespectful tone – either in person or by
      email/written communication; Lack of respect for school and district
      personnel as evidenced by body language; Negative attitude; and Lack of
      support for administrative decisions – at the district and State levels.

      Corrective Action Goal: To communicate with all school personnel –
      especially other professionals – in a manner that demonstrates mutual
      respect and adheres to acceptable professional boundaries.

Lisa Burgin, principal of Moore Elementary, signed the letter, and Ms. Finney signed it
below the statement, “I have received and understand the violation stated above.”



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        The possible disciplinary action for violating Ms. Finney’s Corrective Action Plan
is stated in the plan:

      At the end of this corrective action plan, a meeting will be held to review
      the outcomes of the plan; this meeting will occur by May 22, 2015. At that
      time, Nedra Finney will be notified of the recommendation, which may
      include: concluding the corrective action plan, continuing the corrective
      action plan, or ending the corrective action plan as it was unsuccessful. In
      the latter instance, procedures for dismissal would begin.

       Considering the foregoing, we have determined that the written reprimand did not
constitute disciplinary action. Instead, it served as documentation that (1) Ms. Finney
violated her Corrective Action Plan and (2) school administrators discussed this violation
with Ms. Finney to encourage her “[t]o communicate with all school personnel –
especially other professionals – in a manner that demonstrates mutual respect and adheres
to acceptable professional boundaries.” Because the written reprimand did not constitute
disciplinary action, the March 24 incident may serve as a ground for dismissal based on
unprofessional conduct.

       Ms. Finney does not dispute that she interrupted Ms. Walker’s class to express her
displeasure with an administrative decision, which occurred in the presence of the
students in the classroom. Ms. Finney merely disputes Ms. Walker’s account of exactly
what Ms. Finney said and the tone of voice Ms. Finney used, which Ms. Finney claims
was not angry.

       Tennessee Code Annotated section 49-5-501(3)(D) provides that unprofessional
conduct is “[d]isregard of the teacher code of ethics…in such manner as to make one
obnoxious as a member of the profession.” The Teacher Code of Ethics states that a
teacher must strive to earn “the respect and confidence of one’s colleagues….” Tenn.
Code Ann. § 49-5-1002(2). Likewise, Ms. Finney’s Corrective Action Plan required her
to “communicate with all school personnel—especially other professionals—in a manner
that demonstrates mutual respect and adheres to acceptable professional boundaries.”

       Simply put, Ms. Finney’s conduct on March 24 was disrespectful to her colleague;
however, the Chancellor did not determine that the March 24 incident, standing alone,
constituted unprofessional conduct. Rather, the court determined that the “cumulative
nature of Ms. Finney’s improper interactions with her students, and between Ms. Finney
and her colleagues [met] the statutory burden to prove ‘unprofessional conduct.’” There
is ample testimony in the record to support this determination.

      For example, Jenny Dugger Williams, a school psychologist, and Mary Oddo, a
speech pathologist, both at Moore Elementary, testified that they frequently heard Ms.
Finney yelling at her students, some of whom had sensory issues that caused them to

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become more anxious with loud noises. Additionally, Ms. Oddo testified that it was not
uncommon for Ms. Finney to insult her colleagues, referring to Ms. Herren, the special
education supervisor, as “our fearful leader” and questioning Ms. Oddo’s professional
qualifications. Likewise, Ms. Burgin, principal of Moore Elementary, testified that when
Ms. Finney was suspended for three days following an incident with Ms. Oddo, Ms.
Finney exclaimed in the hallways, “Hello friends. Think of me because I have just been
suspended for three days... Mary Oddo complained about me and now I am suspended.”

       Accordingly, we affirm the chancery court’s determination that the cumulative
nature of Ms. Finney’s numerous disrespectful interactions with colleagues and students
supports the finding of unprofessional conduct.

                    C. The May 11, 2015 Hallway Restraint Incident

       Ms. Finney argues that she cannot be disciplined for the alleged restraint on May
11, 2015 because she received a three-day suspension for this incident. She also contends
the evidence does not support a finding that she restrained the student or that her actions
constituted unprofessional conduct.

       The Tenure Act explicitly provides that for suspensions of three days or less, “the
director [of schools] may not impose any additional punishment beyond that described in
the notice of suspension.” Tenn. Code Ann. § 49-5-512(d)(4). It is undisputed that Ms.
Finney received a three-day suspension for the May 11, 2015 incident. Therefore, the
May 11, 2015 incident cannot serve as a ground for dismissal.

       However, Ms. Finney’s behavior on May 11 is relevant because she was subject to
the Corrective Action Plan when it occurred. Moreover, her conduct on this and other
occasions may be considered when determining the appropriate disciplinary action. See
Kelly v. Tennessee Civil Serv. Comm’n, No. M1999-00168-COA-R3-CV, 1999 WL
1072566, at *4 (Tenn. Ct. App. Nov. 30, 1999) (“While prior disciplinary actions have no
bearing on whether an employee has engaged in work-related conduct that warrants
discipline, an employee’s prior conduct, both good and bad, can be considered when
determining what the appropriate disciplinary action should be.”). Furthermore, as this
court has commented:

       An employee cannot be disciplined a second time for the same offense, but
       previous offenses and the penalties may be considered in determining what
       is the appropriate penalty for a subsequent offense. It would be nonsensical
       for the appointing authority to be prohibited from considering that this
       appellant was disciplined five times previously for the same type of
       misconduct as he committed in this case as well as on four other occasions
       and that the previous relatively slight penalties imposed upon him had little
       if any deterrent or rehabilitative effect on him. The Commission was

                                          - 27 -
       correct in considering appellant’s entire record in determining that
       dismissal was appropriate.

Maasikas v. Metro. Gov’t, Nashville & Davidson Cty., No. M2002-02652-COA-R3-CV,
2003 WL 22994296 at *7 (Tenn. Ct. App. Dec. 22, 2003) (quoting London v. Parkway
and Park Comm’n, 503 So.2d 556, 557 (La. Ct. App. 1987) (citing Jarrett v. Capital
Area Legal Servs. Corp., Inc., 763 S.2d 698 (La. Ct. App. 2000)).

       As to Ms. Finney’s conduct on May 11, 2015, the evidence supports a finding that
Ms. Finney illegally restrained a special education student. Betsy Bagsby-Disch, the
District’s expert witness, testified that she is the District’s Nonviolent Crisis Intervention
instructor for the Crisis Prevention Institute, and it is her job to certify professionals in
the District in non-violent crisis intervention and child restraint. After viewing the video
of the incident, she testified “with no doubt” that Ms. Finney used a restraint. Tennessee
Code Annotated section 49-10-1304 states that “[a] student receiving special education
services…may be restrained or isolated only in emergency situations” and only when the
child’s IEP provides for the use of a restraint. There is no evidence that Ms. Finney was
responding to an emergency situation, and furthermore, it is undisputed that the student’s
IEP did not provide for the use of a restraint.

                                        D. Dismissal

       If a statutory ground is proven, and the ground of unprofessional conduct has been
proven in this case, the court must determine whether the teacher’s conduct warrants the
drastic action of dismissal. See Ripley, 293 S.W.3d at 161. In making that determination,
the court examines prior conduct and prior disciplinary actions. Id.; Kelly, 1999 WL
1072566, at *4; Tennessee Dep’t of Human Servs. v. Tennessee Civil Serv. Comm’n, No.
01A019504CH00143, 1995 WL 581086, at *4 (Tenn. Ct. App. Oct. 5, 1995).

        Ms. Finney was placed on a Corrective Action Plan for the 2014-2015 and the
2015-2016 school years for interacting with colleagues in an unprofessional manner and
for failing to follow special education laws and procedures. The goals of the plan were

         A. To create a positive school climate where respect between educators,
            administrators and staff is the norm.
         B. To communicate with all school personnel—especially other
            professionals—in a manner that demonstrates mutual respect and
            adheres to acceptable professional boundaries.
         C. To adhere to required district, state, and federal procedures as
            expected of all personnel.

Moreover, the plan served as notice upon Ms. Finney that future violations could result in
dismissal.

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       The testimony in the record supports the Chancellor’s finding that Ms. Finney
violated her Corrective Action Plan on March 24, 2015 by interacting with a colleague in
an unprofessional manner; that on May 11, 2015 she failed to follow district, state and
federal procedures by using an improper restraint; and other evidence in the record
supports the finding that Ms. Finney violated the plan on October 28, 2015, by refusing to
follow a student’s behavior support plan.

      For the foregoing reasons, we affirm the disciplinary decision to terminate Ms.
Finney’s employment as a tenured teacher.

                                    IN CONCLUSION

       The judgment of the trial court is affirmed and this matter is remanded with costs
of appeal assessed against Nedra Finney.


                                                   ________________________________
                                                   FRANK G. CLEMENT JR., P.J., M.S.




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