                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   October 27, 2015 Session

    SUSAN WEAVER JONES v. KNOX COUNTY BOARD OF EDUCATION,
                             ET AL.

                   Appeal from the Chancery Court for Knox County
                  No. 1859972   Clarence E. Pridemore, Jr., Chancellor


                No. E2015-00304-COA-R3-CV – Filed December 21, 2015


This appeal concerns a tenured teacher‟s challenge to her transfer to a different job
position. Susan Weaver-Jones1 (“Jones”) sued the Knox County Board of Education
(“the Board”) and Dr. James McIntyre (“McIntyre”), Superintendent of Knox County
Schools, (“Defendants,” collectively) in the Chancery Court for Knox County (“the Trial
Court”). Jones alleged that her transfer from Instructional Coach to classroom teacher
was arbitrary, capricious, and contrary to law. Defendants filed a motion to dismiss
pursuant to Tenn. R. Civ. P. 12.02(6). The Trial Court granted Defendants‟ motion to
dismiss. Jones appealed to this Court. We hold that Jones‟ complaint asserted a claim
upon which relief could be granted, and that the Trial Court erred in granting Defendants‟
motion to dismiss. We reverse the judgment of the Trial Court and remand this case for
further proceedings.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed;
                                     Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J., and JOHN W. MCCLARTY, J., joined.

Richard L. Colbert and Courtney L. Wilbert, Nashville, Tennessee, for the appellant,
Susan Weaver-Jones.

David M. Sanders, Knoxville, Tennessee, for the appellees, Knox County Board of
Education and Dr. James McIntyre.



1
  Ms. Weaver-Jones‟ name contains a hyphen in her brief, but does not elsewhere in the record. We note
the discrepancy.
                                       OPINION

                                      Background

             This appeal concerns a tenured teacher‟s legal challenge to her transfer
from the position of Instructional Coach to classroom teacher, a transfer she considers to
be a demotion. At the end of the 2011-2012 school year, McIntyre transferred Jones, a
tenured teacher with Knox County schools, to her new position. In August 2013, Jones
sued Defendants in the Trial Court, alleging that her transfer was arbitrary, capricious,
and in violation of the requirements of Tenn. Code Ann. § 49-5-510 (2013), which
provides:

      The director of schools, when necessary to the efficient operation of the
      school system, may transfer a teacher from one location to another within
      the school system, or from one type of work to another for which the
      teacher is qualified and licensed; provided, that transfers shall be acted
      upon in accordance with board policy.

(Emphasis added). Jones also alleged that her grievance process was unduly cut short
mid-process. At the heart of Jones‟ complaint was the allegation that her performance
evaluations were not considered by McIntyre, as required. Several exhibits were attached
to Jones‟ complaint to this end. In the achievement and growth measures of her total
evaluations, Jones received the highest possible results, according to her complaint.
However, Jones acknowledged also having received criticism from a school principal,
and receiving an unsatisfactory score of 2 in section 5 regarding classroom coaching.

             As Jones‟ pleadings are central to this appeal, we next quote a portion of
her complaint, wherein she alleged the following:

             12. During the 2011-12 school year the Plaintiff had a total of two
      observations. In these observations, comprising 50% of the Plaintiff‟s total
      evaluation results, the Plaintiff met or exceeded expectations. In the
      achievement and growth measures of Plaintiff‟s evaluation, collectively
      comprising the remaining 50% of the Plaintiff‟s total evaluation results, the
      Plaintiff received the highest possible results.
             13. The Defendant McIntyre did not consider the Plaintiff‟s
      evaluation results in changing her assignments, as required by state law and
      by State Board of Education policy.
             14. Tenn. Code Ann. § 49-5-510 prohibits transfers that are
      arbitrary, capricious, or improperly motivated.

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             15. The transfer of the Plaintiff by Defendant McIntyre without
      consideration of her evaluation results, as required by state law and by State
      Board of Education policy, was arbitrary, capricious, and contrary to the
      requirements of law, and therefore contrary to the limitations on such
      transfers as set out in Tenn. Code Ann. § 49-5-510.
             16. On July 20, 2012, the Plaintiff filed a Step I evaluation grievance
      in which she claimed that her change in assignments, without consideration
      of her evaluation results, constituted a failure to adhere to the evaluation
      policy adopted by the State Board of Education and mandated in all local
      school systems. A copy of the Plaintiff‟s grievance is attached as Exhibit
      3.
             17. The Step I grievance was denied, and the Plaintiff advanced the
      grievance to Step II.
             18. The Defendant McIntyre notified the Plaintiff that the
      Defendants would not act upon her grievance because she allegedly “failed
      to challenge the accuracy of the data used to evaluate [Plaintiff] and
      [Plaintiff] do[es] not contest that the State Board of Education policies were
      met or exceeded.” The Defendant McIntyre further notified the Plaintiff
      that based on his unilateral determination that the grievance was not proper,
      the Plaintiff would be barred from advancing the grievance further in
      accordance with the evaluation grievance process. A copy of the
      notification from the Defendant McIntyre is attached as Exhibit 4.
             34.[sic] The Defendant McIntyre exceeded his authority in
      unilaterally prohibiting the Plaintiff from advancing her evaluation
      grievance.

               In October 2014, Defendants filed a motion to dismiss pursuant to Tenn. R.
Civ. P. 12.02(6). Defendants asserted that Jones lacked a redressable grievance because
she did not contest the accuracy of the data used in the evaluations. Moreover, according
to Defendants, Jones‟ transfer had a rational basis in that, by her own acknowledgement,
Jones had received certain criticism and unsatisfactory marks in her evaluations.
Therefore, per Defendants‟ argument, Jones‟ transfer could not be arbitrary or capricious.
In January 2015, the Trial Court granted Defendants‟ motion to dismiss. In its final order
of dismissal, the Trial Court stated:

             After “review of all of the applicable statutory law and relevant
      cases and upon review of the pleadings and argument of counsel, this Court
      finds that Ms. Weaver Jones‟ transfer was not arbitrary, capricious, or
      contrary to the requirements of the law and that Ms. Weaver Jones‟ transfer
      was fair and reasonable; second, that Ms. Weaver Jones filed an improper
      grievance, and, therefore, the grievance was not entitled to secondary
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       review; and thirdly, Superintendent McIntyre acted properly in refusing to
       allow the plaintiff to advance her evaluation grievance. Therefore,
       defendant‟s [sic] motion to dismiss is granted.” [Transcript, p. 30-31].

Jones timely filed an appeal to this Court.

                                        Discussion

             Although not stated exactly as such, Jones raises the following issue on
appeal: whether the Trial Court erred in granting Defendants‟ motion to dismiss.

              Our Supreme Court has discussed the standard of review for motions to
dismiss:

              A Rule 12.02(6) motion challenges only the legal sufficiency of the
       complaint, not the strength of the plaintiff‟s proof or evidence. The
       resolution of a 12.02(6) motion to dismiss is determined by an examination
       of the pleadings alone. A defendant who files a motion to dismiss “ „admits
       the truth of all of the relevant and material allegations contained in the
       complaint, but . . . asserts that the allegations fail to establish a cause of
       action.‟ ”

               In considering a motion to dismiss, courts “ „must construe the
       complaint liberally, presuming all factual allegations to be true and giving
       the plaintiff the benefit of all reasonable inferences.‟ ” A trial court should
       grant a motion to dismiss “only when it appears that the plaintiff can prove
       no set of facts in support of the claim that would entitle the plaintiff to
       relief.” We review the trial court‟s legal conclusions regarding the
       adequacy of the complaint de novo.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)
(internal citations omitted).

             This Court has discussed the legality of transfers of teachers as follows,
with a special emphasis on our Supreme Court‟s decision in Lawrence County Educ.
Ass’n v. Lawrence County Bd. of Educ., 244 S.W.3d 302 (Tenn. 2007):

               The decision to assign a teacher with coaching responsibilities to a
       full-time teaching position generally is considered a transfer rather than a
       dismissal or suspension. White v. Banks, 614 S.W.2d 331, 334 (Tenn.
       1981). The statutes afford broad discretion to the director of schools to
                                              -4-
      transfer teachers within the local school system. See Lawrence County, 244
      S.W.3d at 314; Metro. Nashville, 2009 WL 837884, at *4 (quoting Mitchell
      v. Garrett, 510 S.W.2d 894, 898 (Tenn. 1974)). A director of school‟s
      decision to transfer a teacher must be “ „made in good faith, in accordance
      with the criterion set forth in the statute—efficient operation of the school
      system.‟ ” Id. (quoting McKenna v. Sumner County Bd. of Educ., 574
      S.W.2d 527, 534 (Tenn. 1978)). A director‟s decision to transfer a teacher
      is afforded a presumption of good faith, and the party challenging the
      decision carries the burden to establish, by a preponderance of the evidence,
      that the decision was arbitrary, capricious or “improperly motivated.”
      Lawrence County, 244 S.W.3d at 315. “The determinative question is
      whether the transfer could be classified as for the „efficient operation of the
      school system.‟ ” Id.

Franklin County Bd. of Educ. v. Crabtree, 337 S.W.3d 808, 814 (Tenn. Ct. App. 2010).

               Therefore, while directors of schools have discretion to transfer teachers,
this discretion is not unbounded. Jones points to Tenn. Code Ann. § 49-1-302(d)(2)(A)
(2013), which states in relevant part: “The evaluations shall be a factor in employment
decisions, including, but not necessarily limited to, promotion, retention, termination,
compensation and the attainment of tenure status.” Jones‟ complaint alleges that
Defendants failed to consider her evaluation results which is contrary both to state
statutory law requiring her evaluations to be a factor in Defendants‟ employment decision
to transfer her as well as State Board of Education Policy 5.201, which requires that
evaluations be used to decide, among other things, assignments. Defendants contend,
however, that “[B]ecause the transfer was not arbitrary or capricious, Ms. Jones‟ transfer
is presumed to be reasonable.”

              The major flaw in Defendants‟ argument is that, while decisions to transfer
are in fact presumed to be reasonable and fair, this presumption is rebuttable. It is
insufficient and circular for Defendants to state simply that Jones‟ transfer was
reasonable, and rest on that. It begs the question. If Jones‟ complaint is construed
liberally and her factual allegations are taken as true, as they must be at the motion to
dismiss stage, then McIntyre improperly failed to consider her evaluation results in
making the decision to transfer her.

              Defendants argue that because Jones herself acknowledges that she
received certain unsatisfactory marks and criticism, the transfer cannot have been
arbitrary or capricious. Defendants‟ interpretation would serve to vitiate any protection
for tenured teachers seeking to legally challenge a transfer because under that
interpretation potentially any criticism of a teacher‟s performance, no matter how
                                            -5-
insignificant, could justify a transfer. Such an interpretation is inconsistent with the
applicable law, especially our Supreme Court‟s framework for challenging transfers in
Lawrence County, referenced above.

               Moreover, the Trial Court applied the wrong standard in deciding
Defendants‟ motion to dismiss. Rather than applying the required standard applicable to
a Rule 12.02(6) motion to dismiss as discussed above, the Trial Court instead did not take
Jones‟ factual allegations as true for purposes of the motion, made findings, and ruled on
the merits of the case. Jones‟ claim may or may not succeed on its merits. Nevertheless,
in our judgment, Jones has alleged facts sufficient to state a claim for relief. We hold that
the Trial Court erred in granting Defendants‟ motion to dismiss.

              Jones also requests that we render a judgment that McIntyre‟s decision to
unilaterally cut short her grievance as invalid mid-process was unlawful. Given our
resolution of this appeal, a decision on that issue at this time would not be proper as the
only order of the Trial Court before us on appeal is the order of dismissal granting
Defendants‟ motion to dismiss which now has been reversed.

              Jones argues finally that the trial judge, in ruling for Defendants on the
merits, has prejudged the outcome of the litigation, and she requests that we remand this
case to a different trial judge. We find that to be unnecessary as the Trial Judge‟s error
was not one of bias but rather that of applying the wrong legal standard in deciding
Defendants‟ motion to dismiss. We decline to transfer the case to a different trial judge.

               In conclusion, we hold that Jones has alleged facts sufficient to state a
claim for relief. Namely, our Supreme Court in Lawrence County articulated the legal
route by which a tenured teacher may bring a direct action to challenge a transfer alleged
to be arbitrary, capricious or contrary to applicable law. Taken as true, Jones‟ allegation
that she was transferred arbitrarily without any consideration of her evaluation results
could warrant relief. We take no position as to the ultimate outcome of this case. We
hold only that the Trial Court erred in granting Defendants‟ motion to dismiss. We
reverse the judgment of the Trial Court, and remand this case for further proceedings.




                                             -6-
                                      Conclusion

             The judgment of the Trial Court is reversed, and this cause is remanded to
the Trial Court for collection of the costs below and for further proceedings consistent
with this Opinion. The costs on appeal are assessed against the Appellees, the Knox
County Board of Education and Dr. James McIntyre.


                                                _________________________________
                                                D. MICHAEL SWINEY, JUDGE




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