                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                August 23, 2012 Session

    METROPOLITAN NASHVILLE EDUCATION ASSOCIATION AND
     JAMES FULLER v. THE METROPOLITAN BOARD OF PUBLIC
                         EDUCATION

                Appeal from the Chancery Court for Davidson County
                   No. 04391I    Claudia Bonnyman, Chancellor


                 No. M2011-02242-COA-R3-CV - Filed March 7, 2013


A teacher at Overton High School, who was also a sports coach, challenged the nonrenewal
of his coaching contract, claiming the nonrenewal was not in accordance with Tenn. Code
Ann. § 49-5-510. The trial court found the contract was not renewed because the teacher
refused to follow the guidelines for handling money collected at the sporting events and that
the former coach had not met his burden of proof under the statute. We conclude the
evidence supports the trial court’s ruling and affirm the judgment.

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

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.

Richard Lee Colbert, Courtney Lynch Wilbert, Franklin, Tennessee, for the appellant, James
Fuller.

Lora Barkenbus Fox, Emily Herring Lamb, Paul Jefferson Campbell, II, Nashville,
Tennessee, for the appellee, The Metropolitan Board of Public Education.

                                         OPINION

       The procedural history and facts of this case are set forth in two earlier opinions,
Metropolitan Nashville Educ. Ass’n v. Metropolitan Bd. of Public Educ., 2006 WL 2619982
(Tenn. Ct. App. Sept. 12, 2006), and Metropolitan Nashville Educ. Ass’n v. Metropolitan Bd.
of Public Educ., 2009 WL 837884 (Tenn. Ct. App. March 30, 2009), and will not be restated
herein except to the extent necessary to address the issue presently before us. The only issue
we are asked to decide today is whether the nonrenewal of James Fuller’s coaching contract
was lawful in accordance with the requirements of Tennessee Code Annotated § 49-5-510.
The trial court held that Mr. Fuller failed to carry his burden of proving the nonrenewal was
arbitrary and capricious, or improperly motivated and not necessary to the efficient operation
of the school system. For the reasons set forth below, we affirm the trial court’s judgment.

                                          I. B ACKGROUND

        James Fuller was a mathematics teacher and head coach for boys’ basketball and
baseball at Overton High School. He was placed on administrative leave in the spring of
2002 after the principal learned that Mr. Fuller was not following established procedures for
selling tickets at ball games and turning the collected money over to the school in a timely
fashion. Mr. Fuller was transferred to Hillsboro High School for the 2002-03 school year,
and he was not assigned to coach any sports teams during that year. Mr. Fuller was returned
to Overton for the 2003-04 school year, but he was not returned to his former coaching
positions.

        In February 2004 Mr. Fuller filed a complaint in the chancery court claiming, inter
alia, that relieving him from his coaching duties was equivalent to a “transfer” as that term
is used in Tenn. Code Ann. § 49-5-510.1 Mr. Fuller alleged that his transfer was arbitrary
and capricious, not necessary to the efficient operation of the school system, and otherwise
in violation of Tenn. Code Ann. § 49-5-510. Mr. Fuller requested the court to reinstate him
to his previous assignment as baseball and basketball coach and compensate him for his
monetary losses.2

       The trial court granted the Metropolitan Board of Education’s (the “Board’s”) motion
for summary judgment and ruled against Mr. Fuller on his breach of contract claim, but it did
not specifically address Mr. Fuller’s § 49-5-510 statutory claim. Mr. Fuller appealed the trial
court’s judgment, and the Court of Appeals reversed the trial court’s award of summary
judgment. This court declined to address Mr. Fuller’s argument that the trial court erred
when it granted summary judgment on his claims brought under Tenn. Code Ann. § 49-5-
510.

      The Board appealed the Court of Appeals’ judgment to the Tennessee Supreme Court,
which issued a per curiam order on February 25, 2008, remanding the case to the Court of


        1
        Mr. Fuller also alleged in his complaint breach of contract and unlawful acts under Tenn. Code Ann.
§ 49-5-609, which claims are not presently before us.
        2
        Although Mr. Fuller was removed from his coaching responsibilities in the spring of 2002, he
continued to be compensated as a coach through the end of the term.

                                                   -2-
Appeals for reconsideration in light of the Supreme Court’s opinion in Lawrence County
Education Association v. Lawrence County Board of Education, 244 S.W.3d 302 (Tenn.
2007). On remand, this Court recognized that shifting a teacher with athletic coaching
responsibilities to a full-time teaching position is typically a “transfer” rather than a dismissal
or suspension, and explained that the Lawrence County decision provides the analysis to use
when a teacher challenges the loss of a coaching position under Tenn. Code Ann. § 49-5-510.
Metropolitan Nashville, 2009 WL 837884, at *4 (citing White v. Banks, 614 S.W.2d 331, 334
(Tenn. 1981)).3

       Because the trial court had made no ruling on Mr. Fuller’s statutory claim brought
pursuant to Tenn. Code Ann. § 49-5-510, this Court remanded the case back to the trial court
to consider Mr. Fuller’s statutory claim in light of Lawrence County. Specifically, this Court
instructed the trial court to determine whether Mr. Fuller’s transfer (nonrenewal of his
coaching duties) “could be classified as for the efficient operation of the school system,”
keeping in mind the presumption of good faith associated with teacher transfers.
Metropolitan Nashville, 2009 WL 837884, at *5 (quoting Lawrence County, 244 S.W.3d at
315 (itself quoting McKenna, 574 S.W.2d at 530) (internal quotations removed)).

                                II. T RIAL C OURT P ROCEEDINGS

      The trial court tried Mr. Fuller’s claim in August 2011 and announced its ruling in
open court, following up with a written Final Order. The trial court issued an extensive and
thorough ruling from the bench including:

               [T]he plaintiff, a teacher at Overton High School, sued his employer for
        damages from lost coaching wage supplements and seeks reinstatement as
        coach of the boys’ basketball and boys’ baseball teams pursuant to TCA
        Section 49-5-510. . . .

               [T]he plaintiff contends that the transfer statute at TCA 49-5-510
        provided protection or rights for him, when in 2002 he was renewed as a
        coach. The plaintiff asserts that, based upon the language of the statute, the
        decision to remove the plaintiff from his coaching positions at Overton must
        be made personally by the director of schools, and it is the director’s obligation
        to assure that the nonrenewal of his coaching position was for the efficient
        operation of the school system.



        3
        “Transfer” is defined as “removal from one (1) position to another position under jurisdiction of
the same board.” Tenn. Code Ann. § 49-5-501(12) (Supp. 2012).

                                                  -3-
        According to the plaintiff, although he was criticized for his collection,
control, and reporting of admission money at athletic events, he actually had
very few duties as regards money responsibilities and the athletic events. The
real reason he was not renewed, says the plaintiff, was not because he failed
to follow the money guidelines, but because he supported an unsuccessful
candidate for principal. As a result, says the plaintiff, the successful appointed
principal conducted a personal vendetta against him. Another reason for the
vendetta, says the plaintiff, was that another teacher at Overton stirred up
support for his retention over and against the wishes of the principal.

       Although the plaintiff was returned to Overton as a teacher pursuant to
an arbitration award, he was not returned to his coaching duties, even though
incumbent coaches generally retain their coaching assignment from year to
year unless he does something to warrant removal. Because there was no
annual process of contracting with the plaintiff to serve as coach, the plaintiff
reasons that he had an expectation of serving as coach year after year.

                                      .....

        The Metropolitan Board of Public Education, hereafter the Board,
contends, that although the plaintiff is entitled under the law of the case to a
direct challenge of the nonrenewal of his coaching positions under TCA
Section 49-5-510, he does not have tenure in that position and he cannot
assume renewal of his coaching contract each year. The Board asserts that
there is no contract for coaching beyond the year-to-year assignment by the
director made under TCA Section 49-2-301(b)(1)(FF), and in such coaching
position, there’s no right to formal charges and a hearing before a teacher is
nonrenewed in the year-to-year coaching job.

       The Board argues that principals are responsible for administration and
control of a school’s athletic program and that principals name coaches on a
yearly basis. The Board claims that TCA 49-2-303 places a duty on principals
to provide recommendations to the director of schools regarding appointment
and dismissal of all personnel assigned to the principal’s school, and that
consequently, the Overton principal was exercising her duties when she
recommended that for the year of 2002 and 2003 the plaintiff should not be
reassigned to Overton’s baseball and basketball coaching positions.

      According to the Board, the principal at Overton, Dr. Dillard, had valid
reasons for concluding that the plaintiff was not fulfilling his obligations

                                       -4-
relating to money that came along with his head coaching position.




                                    -5-
               Further, when the plaintiff was returned to Overton as a result of the
       arbitration award, Principal Dillard did not learn of his return until after she
       had recommended and accepted other teachers to coach boys’ basketball and
       boys’ baseball. Ultimately, says the Board, nonrenewal of the plaintiff’s two
       coaching positions was necessary to the efficient operation of the school
       system and was not an arbitrary and capricious decision.

       The trial court described the issues it had to decide as (1) whether Mr. Fuller carried
his burden to show that nonrenewal of his coaching contract was arbitrary and capricious or
improperly motivated and (2) whether the director of schools must decide personally not to
renew Mr. Fuller’s coaching contract, or whether the director may delegate this decision to
his central office staff.

        The trial court made the following findings of fact, none of which are challenged by
either party on appeal:

              The plaintiff taught math at Overton High School from 1983 until the
       spring of 2002. He was assistant football and basketball coach at the same
       school, and in 1991, he began helping the baseball coach. He became the head
       boys’ base - - basketball coach in 1996 and later became head coach for boys’
       baseball. . . . The Board did not have written contracts for coaching positions
       and the plaintiff did not sign a contract to coach.

                                            .....

              Tickets were sold for admission at the baseball games for the first time
       during the 2001 and 2001 school year. Tickets to basketball games and to a
       few annual tournaments had been sold at the gate for years.

                                            .....

               The proof was that the school educated the coaches each year about
       ticket reconciliations and what to do with the moneys that were collected at
       games: that is, to turn in the money to the business manager as soon as
       possible.

              The plaintiff was present at a meeting for the coaches - - at meetings for
       the coaches. The plaintiff stated that the rule at Overton was to turn over the
       funds as soon as possible. The plaintiff knew it was not an accepted practice
       to take collected money home. The plaintiff testified to such. The plaintiff

                                              -6-
admitted it maybe was not a good idea to have students involved in taking up
money at games, but he did have students cover gates at baseball games
because he was busy and he thought this practice would get students to come
to the games. . . . The plaintiff was aware of the obligation to reconcile tickets
by tearing tickets, but this was not done during the baseball games by the
students nor was it done at the Christmas basketball tournament where he was
in charge of tickets.

     The plaintiff stated he was told the policies every year for handling the
money but he handled the money just as others before him had handled the
money. . . .

      The plaintiff took the money home from the first five baseball games.
This was about $800 as he found out when he finally collected the money and
brought it to the school on the demand from the principal, Dr. Dillard.

                                      .....

       At an in-service in early 2002, Monica Dillard continued with her
efforts to educate the teachers and remind them about basic rules for
management of funds belonging to the school and collected from any source.
Her written faculty note of the week of February 2002 advises Overton
teachers that the school’s financial records show areas that must be corrected.
She recounted in the February faculty note the auditor’s concern that teachers
should deliver total collections to the bookkeeper daily. The teacher logs
would include teacher - - student names and indicate total funds turned in.
Money should be given to the bookkeeper in the manner it was collected, cash
or check.

                                      .....

        [I]n March of the same year, the athletic principal, Mr. Armistead, sent
a written memo to all coaches about ticket reconciliation and ticket funds. The
memo was short and to the point. It stated that any and every athletic event,
no matter how little or how much is collected, the teacher must complete the
ticket reconciliation form. . . . No coach should handle the money other than
to give it to Coach Anderson, and there’s absolutely positively no exception
to the rule, which applies during all seasons. If Coach Anderson was not
available for some reason, then his assistant would take the funds. This memo
was also provided to all the coaches, including the plaintiff.

                                       -7-
              In late March 2002 or thereabouts, however, Paul Brunette, an assistant
       principal at Overton, witnessed the exact ticket problems which had been
       brought to Monica [Dillard]’s attention by the auditors. As Paul Brunette
       entered the gym for a game, he noticed that a teacher at the gate was not
       tearing tickets. The teacher had been told by the plaintiff not to tear tickets.
       He had also then seen - - Paul Brunette had also seen at an Overton baseball
       game that students had the cash box and they were not tearing tickets, they
       were just collecting money. He reported these two incidents and this financial
       funding management problem to Monica Dillard.

               Armed with this report from Paul Brunette and concerned about the fact
       that the school baseball account was depleted with some invoices outstanding,
       Monica Dillard met with the plaintiff to address the money problems. She
       asked if he knew of money due the baseball account and he responded that he
       had about $600 at home, receipts from the baseball games.

               The plaintiff was directed to collect the money and bring it to Dr.
       Dillard. The money that was turned in was actually about $800. Dr. Dillard
       reported the financial picture surrounding the plaintiff’s conduct to the central
       office, and soon thereafter, the plaintiff was placed on administrative leave
       with pay for the purpose of an investigation. The plaintiff was removed from
       the classroom and from coaching during the leave.

      Based on these findings of fact, the trial court then turned to the issues before it and
concluded, first, that Mr. Fuller’s transfer was for the efficient operation of the school system
and was not arbitrary or capricious:

              Although the plaintiff believes that Dr. Dillard caused his nonrenewal
       as coach and his transfer because he did not support her as a future principal
       at Overton, there was ample reason to remove the plaintiff during the school
       year over his failure to handle funds properly.

              Further, the nonrenewal of the plaintiff in his coaching position where
       he would be confronted with rules for money that he would not follow was for
       the efficient operation of the school system and was not arbitrary and
       capricious. There was no proof except the plaintiff’s unfounded suspicions
       that Dr. Dillard had negative feelings about him that were unfair and without
       good cause.

                                               -8-
                                             .....

               [T]he Court finds that there is ample proof that the reason for
       nonrenewing the plaintiff’s coaching position was that, although the plaintiff
       was aware of the rules, the plaintiff did not seem to accept the reasoning for
       the rules and, therefore, the plaintiff was satisfied with collecting the funds and
       reporting the funds as had been done in earlier years and by other persons
       besides himself. And as a head coach, the plaintiff had the duty and the
       obligation to serve as a model to the students in educating them about
       accountability as regards money. The plaintiff had the obligation and the duty
       to follow rules, especially rules which would protect the school, would protect
       the school from accusations about wrongdoing with money, would protect the
       school from distraction from education.

        The court then turned to the second issue before it, whether or not the director of
schools must decide personally not to renew Mr. Fuller’s coaching contract. The proof at
trial was that Dr. Pedro Garcia was the director of schools at all relevant times. Based on the
evidence presented, the court concluded that the director was not required personally to
decide not to renew Mr. Fuller’s coaching contract, but that Dr. Garcia has been aware that
Mr. Fuller’s coaching contract at Overton was not being renewed, and in fact, did not want
Mr. Fuller’s contract to be renewed:

              Dr. Garcia was aware, according to Dr. Dillard, and the Court finds that
       Dr. Dillard was a credible witness, that the plaintiff would not be renewed as
       coach, and Dr. Garcia did not want the plaintiff to be renewed as coach.

              Scott Brunette was employed with the board of education during 2002
       and 2003. For the board of education, he was the director of athletics. Scott
       Brunette stated that Dr. Garcia was aware that Mr. Fuller was not going back
       into coaching at Overton.

                                             .....

              [T]he Court finds here that there is no obligation placed upon the
       director of schools to personally carry out the functions of the director of
       schools. The director of schools in an urban school system is going to have
       budgetary decisions, many difficult budgetary decisions, many difficult
       personnel decisions. And the plaintiff - - the director of schools cannot - - I’m
       not going to say “cannot.” I’m going to say - - because this is what I do
       believe and find - - that 49-5-510, and the rest of the statutory scheme

                                               -9-
       involving the director of schools, did not contemplate or require that the
       director of schools personally . . . make all budgetary decisions. Some of that -
       - those tasks, in a large school system, are going to have to be delegated to
       other people. But the director of schools is ultimately accountable and
       responsible for any decisions made by persons to whom he delegates . . . those
       duties.

               So in answer to the question, must the director of schools personally
       decide to not renew the plaintiff’s coaching contract, the answer to that issue
       is, the director of schools is not required to personally decide to not renew the
       plaintiff’s coaching contract.

              But the Court does find that Dr. Garcia was aware of the nonrenewal
       of the plaintiff’s coaching contract and was aware that he was not being
       renewed to go back to Overton to be the head coach.

        Mr. Fuller appealed the trial court’s judgment to this Court, arguing that the trial court
erred in concluding his transfer out of his coaching positions was lawful in accordance with
the requirements of Tenn. Code Ann. § 49-5-510.

                                 III. S TANDARD OF R EVIEW

        Our review on appeal of the trial court’s findings of fact is de novo with a
presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P.
13(d); Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006); Bogan v. Bogan, 60 S.W.3d
721, 727 (Tenn. 2001); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). We review
a trial court’s conclusions of law de novo, with no presumption of correctness. Whaley v.
Perkins, 197 S.W.3d 665, 670 (Tenn. 2006); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993).

          IV. M R. F ULLER’S T RANSFER W AS N OT A RBITRARY OR C APRICIOUS

      The sole issue on appeal is whether the nonrenewal of Mr. Fuller’s coaching contract
was lawful pursuant to the requirements of Tenn. Code Ann. § 49-5-510. That statute
provides as follows:

       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

                                               -10-
       board policy.




       The Supreme Court in Lawrence County reviewed the application of § 49-5-510 to
a teacher who was relieved of coaching responsibilities:

       [A] director of schools has the statutory power to transfer teachers within the
       local system. Tenn. Code Ann. § 49-5-510 (2002). “When so made, it need
       not necessarily be preceded . . . by formal written notice and a hearing, so long
       as it is made in good faith, in accordance with the criterion set forth in the
       statute-efficient operation of the school system.” McKenna v. Sumner County
       Bd. of Educ., 574 S.W.2d 527, 534 (Tenn. 1978); see also State ex rel.
       Pemberton v. Wilson, 481 S.W.2d 760, 770 (Tenn. 1972). If a transfer is not
       made in good faith and is the product of arbitrary, capricious, or improper
       conduct, a tenured teacher is entitled to present a direct legal challenge in the
       courts. McKenna, 574 S.W.2d at 534; Mitchell v. Garrett, 510 S.W.2d 894,
       898 (Tenn. 1974).

Lawrence Cnty., 244 S.W.3d at 314.

       When challenging the loss of coaching responsibilities pursuant to Tenn. Code Ann.
§49-5-510, “[j]udicial review is limited to determining ‘whether or not a transfer was made
in accordance with the statutory requirements . . . and must be conducted in light of the broad
discretion which the statutes clearly give.’” Lawrence Cnty., 244 S.W.3d at 314 (quoting
McKenna, 574 S.W.2d at 534 (itself referencing Tenn. Code Ann. §[49-5-510])). There is
a presumption of good faith associated with teacher transfers, and a plaintiff must prove by
a preponderance of the evidence that a transfer was arbitrary and capricious or improperly
motivated to be entitled to any relief under this statute. Lawrence Cnty., 244 S.W.3d at 315.
A decision is arbitrary and capricious if it is not supported by substantial and material
evidence. Pittman v. City of Memphis, 360 S.W.3d 382, 389 (Tenn. Ct. App. 2011).

        The evidence presented at trial supported the trial court’s conclusion that Mr. Fuller’s
coaching contract was not renewed because he refused to follow the established procedures
for handling money at Overton High School. That evidence is set out in the trial court’s
ruling, as quoted above.

        Mr. Fuller does not challenge the trial court’s findings of fact. He argues instead that
the trial court erred in ruling that the decision not to renew his coaching contract was

                                              -11-
necessary to the efficient operation of the school system. He claims that Dr. Dillard had a
vendetta against him because he did not support her as the next principal of the school, and
that she had him transferred because of her negative feelings towards him. Dr. Dillard
testified, however, that she did not seek the position of principal and that the only reason she
took the position was because she was asked to do so. She also testified that she had a good
relationship with Mr. Fuller and felt no personal antagonism towards him.

        The trial court specifically found Dr. Dillard was a credible witness. When there is
an issue of credibility of witnesses and the weight to be given in-court testimony, we must
accord considerable deference to the trial court’s factual findings. Fritts v. Safety Nat’l Cas.
Corp., 163 S.W.3d 673, 678 (Tenn. 2005). We therefore credit Dr. Dillard’s testimony and
conclude the trial court did not err in ruling that the nonrenewal of the plaintiff in his
coaching position where he had been confronted with rules for money that he would not
follow was for the efficient operation of the school system. The evidence presented at trial
fully supports the trial court’s ruling, with the result that Mr. Fuller has failed to show by a
preponderance of the evidence that his transfer out of coaching was arbitrary and capricious
or improperly motivated.

                      V. T HE R OLE O F T HE D IRECTOR OF S CHOOLS

        Mr. Fuller next argues that his transfer was not in accordance with § 49-5-510 because
there was no proof that the director of schools was personally responsible for the decision
not to renew his coaching contract. Mr. Fuller argues that Dillon’s Rule prevents the director
from delegating the task of transferring tenured teachers. Dillon’s Rule is a “canon of
statutory construction that calls for the strict and narrow construction of local governmental
authority.” Arnwine v. Union Cnty. Bd. of Educ., 120 S.W.3d 804, 807 (Tenn. 2003)
(quoting S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710
(Tenn.2001)).

       Contrary to Mr. Fuller’s argument, however, two different witnesses testified that Dr.
Garcia was aware of Mr. Fuller’s transfer away from coaching. Dr. Dillard testified that she
knew Dr. Garcia did not want Mr. Fuller in a coaching position upon his return to Overton.
In response to a question why she did not consider having Mr. Fuller coach again, Dr. Dillard
said:

       Partly because I knew Dr. Garcia did not want him coaching, and Dr. Garcia
       was my supervisor, my boss, and partly because of the concerns I had about the
       money issues.

In addition to Dr. Dillard, Scott Brunette, who was employed by the Board as the director of

                                              -12-
athletics, testified that Dr. Garcia was aware that Mr. Fuller was not going back to coaching
upon his return to Overton.

       As the Board points out in its brief, there is no need for us to determine whether or not
the director can delegate the nonrenewal of Mr. Fuller’s coaching contract because the
evidence at trial was that Dr. Garcia was aware that Mr. Fuller’s coaching contract was not
going to be renewed and that he did not want Mr. Fuller to continue as a coach. Whether Dr.
Garcia is the individual who made the actual decision to transfer Mr. Fuller out of his
coaching position or whether the decision was influenced by Dr. Garcia’s preference that Mr.
Fuller not continue as a coach, the evidence shows that Dr. Garcia was aware of the transfer.
If Dr. Garcia disagreed with the transfer, he, as the director of schools, was in a position to
prevent it.

      Based on the evidence presented at trial and the trial court’s findings of fact, we
conclude that Mr. Fuller has failed to carry his burden to show that the nonrenewal of his
coaching contract was not lawful in accordance with Tenn. Code Ann. § 49-5-510.

                                      VI. C ONCLUSION

        For the reasons stated above, we affirm the trial court’s judgment dismissing Mr.
Fuller’s statutory claim that his transfer was not conducted in accordance with the
requirements of Tenn. Code Ann. § 49-5-510. Costs of this appeal shall be taxed to James
Fuller, for which execution shall issue if necessary.


                                                           ____________________________
                                                           PATRICIA J. COTTRELL, JUDGE




                                              -13-
