                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 May 11, 2011 Session

         LEONORA WASHINGTON v. GALE VOGEL, PH.D., ET AL.

                Appeal from the Circuit Court for Rutherford County
                  No. 56880     Robert E. Corlew III, Chancellor


                 No. M2010-02461-COA-R3-CV - Filed July 20, 2011


Teacher who received a reprimand brought this action to challenge the actions of school
officials and the school board. She argues that the school failed to provide due process to
her and defamed her. The trial court found in favor of the defendants, and we affirm.

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

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

Kerry Knox and Thomas H. Castelli, Murfreesboro, Tennessee, for the appellant, Leonora
Washington.

Anthony Michael Noel, Nashville, Tennessee, for the appellees, Gale Vogel, Ph.D., Harry
Gill, Rutherford County Board of Education, and Rutherford County, Tennessee.

                                        OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

        The Rutherford County Board of Education hired Leonora Washington as a teacher
in 1972, and she has taught first grade at Smyrna Primary School since that time. On March
29, 2007, Ms. Washington was speaking to a child in the lunch room about his conduct, and
her purse slipped off of her arm and struck the child’s leg. Another student reported to an
educational assistant that Ms. Washington had struck the child with her purse; the
educational assistant informed the child’s teacher, Ms. Shea Williams. Ms. Williams
discussed the incident with the child and then met with the principal, Gale Vogel, about the
matter.
        Ms. Williams and Dr. Vogel met with the child and then with four other students, the
lunch monitor, and the educational assistant. The child’s parents were contacted and came
to the school to discuss the incident with Dr. Vogel. Based upon the parents’ examination
of the child’s leg, Dr. Vogel contacted the Department of Children’s Services to report
possible child abuse. Dr. Vogel also informed Paula Barnes, a human resources officer, and
Angel McCloud, attorney for the board of education. The next day, Ms. Barnes and Ms.
McCloud went to the school to investigate. They informed Ms. Washington that she had
been accused of assaulting the child; Ms. Washington explained that she had not intentionally
struck the child.

        Upon leaving the interview with Ms. Barnes and Ms. McCloud, Ms. Washington went
to the child’s classroom. The child was not in the classroom at the time. The parties disagree
as to exactly what transpired in the classroom. Ms. Washington alleges that she went to the
classroom to apologize to the child and to speak to the child’s teacher about the incident.
The defendants assert that Ms. Washington explained her side of the story to the students and
had at least one student hold her purse to see how heavy it was. The child’s teacher, Ms.
Williams, immediately reported Ms. Washington’s visit to the classroom to Dr. Vogel, who
instructed her to talk to Ms. McCloud.

        On April 2, 2007, Dr. Vogel sent a memorandum to the central office with a summary
of her investigation of the matter. According to this report, Dr. Vogel informed Ms.
Williams and Carla Sartin, the special education resource teacher, that there should be no
contact between the child and Ms. Washington. An educational assistant was to be assigned
to sit with the child at lunch. All special area teachers were to be informed that there should
be no contact between the child and Ms. Washington.

       Harry Gill, the director of schools, sent Ms. Washington a letter dated April 2, 2007,
in which he concluded that she “did not intentionally hit the student with your purse.” He
went on, however, to address her visit to the child’s classroom:

       [T]his morning it was brought to my attention that after meeting with the
       complaint managers [Ms. Barnes and Ms. McCloud] on the morning of March
       30, 2007, you went to Ms. Williams’ classroom and began addressing the class
       about good manners in the cafeteria. You then proceeded to have several
       students hold your purse to determine if it was heavy. You inquired about the
       whereabouts of the specific child who had lodged the complaint against you
       and exited the classroom by telling the students that they knew you didn’t hit
       kids.




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       The complaint lodged against you was filed pursuant to the provisions of
       Board policy 5-12. The policy states that there shall be no retaliation against
       any person who reports harassment or bullying/intimidation or participates in
       the investigation. Your actions on the morning of March 30, 2007 are a direct
       violation of this policy. Violations of board policy constitute insubordination
       under Tennessee Code Annotated Section 49-5-501 and may be cause for
       disciplinary action up to and including termination. This letter is to serve as
       a formal reprimand and a copy will be placed in your personnel file. This is
       a serious violation of board policy and any future acts of this type will result
       in further disciplinary action. You are directed to have no further contact with
       anyone involved in the complaint investigation.

       Ms. Washington submitted a written statement in rebuttal to the reprimand. No one
had spoken to her about the allegation of retaliation before she received the notice of
reprimand. Ms. Washington requested a meeting with Mr. Gill to discuss removal of the
reprimand from her personnel file. Mr. Gill did not attend the meeting, which occurred on
June 11, 2007; Ms. Barnes and Ms. McCloud met with Ms. Washington and they relayed her
request to Mr. Gill. The reprimand was not removed from Ms. Washington’s personnel file.

       On August 21, 2007, Ms. Washington filed a formal complaint against Mr. Gill
alleging that he and others had failed to afford her due process in giving her a reprimand for
violating Rutherford County Board of Education Policy 5-12. In a response dated August
27, 2007, Ms. McCloud informed Ms. Washington that Ms. McCloud had been appointed
Mr. Gill’s designee for purposes of investigating her complaint. Ms. McCloud’s findings
include the following:

       At the conclusion of the investigation [of the original complaint against Ms.
       Washington] the Director of Schools received credible information, in the
       form of a written statement, indicating that after leaving the interview with the
       complaint managers regarding the student complaint, Ms. Washington went to
       the student’s classroom and began addressing the class regarding the content
       of the complaint. The report stated Ms. Washington had at least two students
       hold her purse and asked them if it was heavy. She asked where the student
       (who was the subject of the complaint) was that morning and the teacher told
       her he was in another classroom. The report also indicated as Ms. Washington
       left the classroom she stated, “ya’ll know I don’t hit kids”. This incident was
       reported to the principal and the complaint managers immediately.

       The Director of Schools determined the incident violated the retaliation portion
       of Board Policy 5-12 . . . . Based upon the Director of School’s determination

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       Ms. Washington’s actions violated the policy he issued a formal reprimand to
       be placed in her personnel file.

At the end of the memorandum, Ms. McCloud reached the following conclusions regarding
Mr. Gill’s actions: “Based upon the investigation I have determined there has been no
violation of Board policy or state or federal law.”

       Ms. Washington appealed her complaint to the Rutherford County Board of
Education, which declined to hold a hearing and denied her appeal based upon the findings
of Ms. McCloud.

        On March 28, 2008, Ms. Washington filed this action against Dr. Vogel, Harry Gill,
Rutherford County Board of Education, and Rutherford County. She asserted causes of
action for denial of due process and defamation. The defendants answered the complaint,
and the parties engaged in discovery. The defendants filed a motion for summary judgment
on January 7, 2010. The trial court initially granted the defendants’ motion as to the
defamation claim only. The defendants filed a motion to reconsider or amend the court’s
ruling, and on November 5, 2010, the court granted the motion for summary judgment with
respect to the remaining claim.

     On appeal, Ms. Washington asserts that the trial court erred in granting the defendants
summary judgment on her due process claim and her defamation claim.

                                    S TANDARD OF R EVIEW

       Summary judgment is appropriate when there is no genuine issue of material fact and
the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04.
Summary judgments do not enjoy a presumption of correctness on appeal. Bell South Adver.
& Publ'g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). We consider the evidence in
the light most favorable to the non-moving party and resolve all inferences in that party's
favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). When reviewing the evidence, we
must determine whether factual disputes exist. Byrd v. Hall, 847 S.W.2d 208, 211
(Tenn.1993). If a factual dispute exists, we must determine whether the fact is material to
the claim or defense upon which the summary judgment is predicated and whether the
disputed fact creates a genuine issue for trial. Id.; Rutherford v. Polar Tank Trailer, Inc., 978
S.W.2d 102, 104 (Tenn. Ct. App. 1998). To shift the burden of production to the nonmoving
party who bears the burden of proof at trial, the moving party must negate an element of the
opposing party's claim or “show that the nonmoving party cannot prove an essential element
of the claim at trial.” Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008).



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                                           A NALYSIS

      We begin by emphasizing that this case was brought for due process violations and
defamation. There is no challenge to the validity of the school board policy.

                                                I.

      To prevail on a due process violation, a claimant must establish that (1) she had a
cognizable life, liberty, or property interest, (2) she was deprived of that interest, and (3) she
was not afforded adequate procedural rights prior to the deprivation. Gunasekera v. Irwin,
551 F.3d 461, 467 (6th Cir. 2009). Ms. Washington’s essential argument is that she held a
cognizable property interest in her personnel record that was infringed by the reprimand.

        While we are not unsympathetic to Ms. Washington’s sense of unfairness in the fact
that she was not consulted prior to issuance of the reprimand, we know of no authority by
which she has a property interest in her personnel record. To have a constitutionally
protected property interest in a benefit, a person must have a “legitimate claim of
entitlement” to the benefit that is derived from an independent source, such as state law.
Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005); see also Baar v. Jefferson
County Bd. of Educ., 311 Fed. Appx. 817, 824 (6th Cir. 2009). As the Supreme Court has
stated, the Constitution does not create property interests; rather, “they are created and their
dimensions are defined by existing rules or understandings that stem from an independent
source such as state law-rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits.” Bd. of Regents of State Colleges v. Roth, 408 U.S.
564, 577 (1972).

       A property interest can be created by contract. Baar, 311 Fed. Appx. at 825. In Baar,
a public school teacher received a reprimand disciplining him for violating a memorandum
of understanding, instructing him not to communicate with the contact person for a certain
professional organization, and prohibiting him from representing the schools at future
meetings of a professional organization. Id. at 820. The court determined that Baar did not
have a cognizable property interest in income from professional development activities or
in judging academic competitions. Id. at 824. The court went on to find that Baar did have
a property interest in a requirement of no discipline without just cause, a right created by the
teachers’ collective bargaining agreement. Id. at 825.

       In the present case, however, the education agreement in effect at the time of the
issuance of a reprimand to Ms. Washington did not give her due process rights with respect
to the issuance of a reprimand. The pertinent language in the 2005-2008 Education
Agreement provides as follows:

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       It is the duty of the Board when dismissing teachers, principals, supervisors,
       and other employees, upon sufficient proof of improper conduct, inefficient
       service, or neglect of duty to first give in writing due notice of the charge or
       charges and provide an opportunity to come before the Board at the regularly
       scheduled Board meeting and present their defense.

If the Board had decided to dismiss Ms. Washington, she would have been entitled to notice
and an opportunity to be heard prior to such a deprivation. The only discipline given to Ms.
Washington was a letter of reprimand in her personnel file. She did not lose her job or suffer
a decrease in salary or a demotion of any kind. See Sullivan v. Brown, 544 F.2d 279, 282 (6 th
Cir. 1976) (transfer of tenured teacher based upon allegations in a written reprimand placed
in her personnel file did not amount to deprivation of a constitutionally protected property
interest under Tennessee’s laws).

        Ms. Washington argues that Policy 5-12, the policy under which she was disciplined,
guaranteed her a right to due process. Policy 5-12 generally prohibits discrimination and
harassment, as well as bullying and intimidation of students. Ms. Washington was
disciplined under a portion of the policy prohibiting “retaliation against any person who
reports harassment or bullying/intimidation or participates in an investigation.” To support
her alleged entitlement to due process, Ms. Washington cites the highlighted portions of the
following provisions concerning confidentiality:

       The privacy and anonymity of all parties and witnesses to complaints will be
       respected. However, because an individual’s need for confidentiality must be
       balanced with obligations to cooperate with police investigations or legal
       proceedings, to provide due process to the accused, to conduct a thorough
       investigation or to take necessary action to resolve a complaint, the identity
       of parties and witnesses may be disclosed in appropriate circumstances to
       individuals with a need to know.

(Emphasis added). The purpose of these provisions is to explain the limits of confidentiality.
They do not provide for a blanket right to due process for any teacher alleged to have
violated the policy, regardless of the type of discipline used.

       Ms. Washington further cites the procedures set out in Policy 5-12 for filing and
investigating complaints of bullying or discrimination. These procedures, however, relate
mainly to persons filing complaints and the investigation of such complaints. The policy
provides for an investigation by complaint managers, who shall review the initial complaint
and the principal’s report of preliminary findings. The complaint managers decide whether
further investigation is warranted. In the event of further investigation, the complaint

                                             -6-
managers are to notify the complaining student’s parents and the superintendent, who is to
render a decision within five school days of receipt of the complaint managers’ report.
Appeal is to the board of education, which shall review the actions of the superintendent and
report its decision to the complainant. The policy specifically states that the “complaint
procedure shall not be construed to create an independent right to a Board hearing.” These
procedural provisions do not afford any particular rights to persons alleged to have violated
the policy, and we must conclude that they do not create a constitutionally protected property
interest as argued by Ms. Washington.

       Having found no constitutionally protected property interest, we conclude that Ms.
Washington’s due process claim must fail.1 We agree with the trial court’s conclusion that,
under the education agreement in effect at the time, “it appears that [Ms. Washington] did
not enjoy a property right which would require the employer to afford Due Process rights to
the Plaintiff.” 2

                                                     II.

       An essential element of defamation is that the defendant published a statement.
Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999). In the context of
defamation, “publication” is a term of art meaning “the communication of defamatory matter
to a third person.” Id. A claim for defamation requires proof that “the defendant
communicated a false and defamatory statement to the person of another, and that as a result
thereof the plaintiffs suffered actual damages.” Shipley v. Tenn. Farmers Mut. Ins. Co., No.
01-A-01-9011CV00408, 1991 WL 77540, at *5 (Tenn. Ct. App. May 15, 1991) (citing
Emerson v. Garner, 732 S.W.2d 613, 617 (Tenn. Ct. App. 1987)).

       Ms. Washington alleges three instances of publication: 1) oral notification (by the
principal to Ms. Williams and Ms. Sartin and by an unnamed school employee to the
education assistant assigned to eat lunch with the student) to the effect that there should be
no contact between the student and Ms. Washington; 2) a “written policy” communicated to
special education teachers intimating that Ms. Washington posed a threat to the student; and



        1
         Having reviewed the entire record in this case, we observe that this lawsuit might well never have
been brought had Ms. Washington been treated in a manner more consistent with her more than 30 years of
teaching at the school–i.e., if she had been afforded the opportunity to explain her side of the incidents in
question to a decisionmaker, rather than to the same designee who had conducted the initial investigation.


        2
         The trial court noted that the current education agreement “appears to afford Due Process Rights
to tenured teachers before a reprimand is issued.”

                                                    -7-
3) publication to the public through the board of education and the newspaper when Ms.
Washington appealed the reprimand to the board of education.

       As to the oral notifications, Tenn. Code Ann. § 28-3-103 requires that “[a]ctions for
slanderous words spoken shall be commenced within six (6) months after the words are
uttered.” In this case, the alleged defamatory words were uttered in late March or early April
of 2007. Ms. Washington did not file her lawsuit until March 28, 2008, almost a full year
later. Thus, any defamation claim based upon those oral statements is barred by the statute
of limitations.

        Ms. Washington also cites a “written policy that was communicated to all special area
teachers which intimated that Plaintiff posed some danger or threat to the student.” At oral
argument, counsel for Ms. Washington described a memorandum circulated among school
staff instructing them to keep the student away from Ms. Washington. The defendants assert
that no such memorandum was circulated. Even if we assume the existence of such a
memorandum, we do not consider its circulation among special education teachers to
constitute publication. This court has previously held that communications “among agents
of the same corporation made within the scope and course of their employment relative to
duties performed for that corporation are not to be considered as statements communicated
or publicized to third persons.” Woods v. Helmi, 758 S.W.2d 219, 223 (Tenn. Ct. App. 1988)
(citing Freeman v. Dayton Scale Co., 19 S.W.2d 255, 257 (Tenn. 1929)). In Woods, the
court emphasized a “need to know” concept–i.e. that communication flowing through the
proper chain of command does not qualify as publication. Id.; see also Evans v. Amcash
Mortgage Co., Inc., No. 01A01-9608-CV-00386, 1997 WL 431187, at *5 (Tenn. Ct. App.
Aug. 1, 1997).

       The third allegation concerns newspaper articles about the reprimand and Ms.
Washington’s complaint against Mr. Gill. Because Ms. Washington chose to appeal her
reprimand to the board of education, the related information became a matter of public
record. We know of no authority under which the school system can be held responsible for
the media’s dissemination of public information.

      We must conclude that the trial court acted properly in dismissing Ms. Washington’s
defamation claim at the summary judgment stage.




                                             -8-
                                   C ONCLUSION

     We affirm the trial court’s decision. Costs of appeal are assessed against Ms.
Washington, for which execution may issue if necessary.


                                                 ______________________________
                                                      ANDY D. BENNETT, JUDGE




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