Bailey v. Blount County Bd. of Educ.

Decision Date28 January 2010
Docket NumberNo. E2007-01028-SC-R11-CV.,E2007-01028-SC-R11-CV.
PartiesJoseph BAILEY et al. v. BLOUNT COUNTY BOARD OF EDUCATION et al.
CourtTennessee Supreme Court

Robert N. Goddard, Maryville, Tennessee, for the appellants, Blount County Board of Education and Alvin Hord.

Kevin W. Shepherd, Maryville, Tennessee, for the appellees, Joseph Bailey and Pamela Bailey.

Charles W. Cagle and Jason M. Bergeron, Nashville, Tennessee, for amicus curiae, The Tennessee Organization of School Superintendents.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., GARY R. WADE, and WILLIAM C. KOCH, JJ., joined. SHARON G. LEE, J., not participating.

We granted permission to appeal in this case in order to address whether the plaintiff, Joseph Bailey, was afforded adequate due process in conjunction with his dismissal from his position as a nontenured, nonlicensed, classified teaching assistant at Heritage High School. We hold that he was. However, because that issue is not dispositive of the majority of claims brought by Bailey in this action, the trial court's grant of summary judgment and dismissal of the entire case was incorrect. Accordingly, we reverse in part the judgment of the Court of Appeals and remand this matter to the trial court for further proceedings consistent with this opinion.

Factual and Procedural Background1

This lawsuit arose out of a dispute surrounding plaintiff/appellee Joseph Bailey's dismissal from his employment at Heritage High School in Blount County, Tennessee. Bailey was employed by the Blount County School System under a one-year contract as a classified, nontenured, nonlicensed teaching assistant. Bailey did not provide instruction but was in charge of the in-school suspension program at Heritage High School. Bailey worked under the jurisdiction of the Director of Schools, defendant/appellant Alvin Hord.

In his position as supervisor of the in-school suspension program, Bailey had occasion to communicate with students who were facing personal challenges. According to Bailey, these students felt comfortable confiding in him, and he attempted to give them advice about their problems. In January 2006, a female student filed a sexual harassment complaint against Bailey. She claimed that Bailey, using vulgar language, asked her questions about her pregnancy and her sex life. Dr. Jane Morton, the school system's complaint manager, investigated the matter. According to Dr. Morton, Bailey concurred with the date and nature of the conversation but denied making specifically inappropriate comments.

Following Dr. Morton's investigation and report to Director Hord, Hord wrote Bailey a letter dated March 10, 2006, concerning this complaint of "inappropriate remarks to a female student." This letter recites that Bailey admitted to the remarks and informs Bailey that he will be suspended without pay for ten days beginning March 20, 2006. The record contains no response by Bailey to this letter, and Bailey has not asserted to this Court that he responded to it at that time. After completing his suspension, Bailey apparently completed that school year and was re-employed on a new one-year contract for 2006-2007.2

On November 1, 2006, a female Heritage High School teacher filed a sexual harassment complaint against Bailey on the basis of an email she received from him commenting on her physical appearance in jeans. In response to the complaint, Director Hord sent Bailey a letter dated November 1, 2006, notifying Bailey that he was suspended with pay as of November 2, 2006, "pending the outcome of an investigation into a complaint of sexual harassment and inappropriate behavior filed against [him] on 11-1-2006 by a teacher at Heritage High School." The letter also informed Bailey that "[i]n accordance with Policy 5.202 [he would] be given an opportunity to respond to the complaint," and would "receive a written decision at the conclusion of the investigation, along with notice of the appeal process (Policy 5.202)." Director Hord referred the complaint to Dr. Morton for investigation.

On November 10, 2006, Dr. Morton wrote Bailey a letter informing him of the process that would be followed in investigating and resolving the complaint. This letter recites that, "[i]n accordance with Board of Education Policy 5.202 you have the opportunity to respond to this complaint, which includes the original documents you received on 11-2-2006 and the enclosed documents, which were found during the investigation."3 The letter requests that, if Bailey chose to respond to the complaint, he do so in writing. The letter concludes as follows:

Upon receipt and review of your response I will meet with Mr. Hord to present the complaint, the additional documentation from the investigation, your written response, and any findings from the investigation. Mr. Hord will make any recommendations about your job placement, and you will be notified of those recommendations, along with notice of the appeal process. Absent any written response from you by 11-17-2006, a decision will be made based upon the information provided to us by the complainant.

Policy 5.202, referenced in both Director Hord's and Dr. Morton's letters, provides that

[t]he director of schools may dismiss any classified employee . . . during the contract year for incompetence, inefficiency, insubordination, improper conduct or neglect of duty.

The director of schools may either choose to provide the employee with a hearing or give the employee the opportunity for a hearing before the Personnel Hearing Authority. Requests for hearings must be filed in writing with ten (10) days of notification.

Policy 5.202 further provides that, following a hearing before a Personnel Hearing Authority and the Authority's decision, "[t]he employee may appeal the decision to the Board within ten (10) working days of the Personnel Hearing Officer rendering the written decision to the employee."

Following these letters, which notified Bailey in writing of the complaint against him, Bailey obtained legal counsel and, through his lawyer, obtained an extension of time for his written response. Bailey's lawyer subsequently wrote a letter to Director Hord, dated November 29, 2006, and delivered via facsimile, which set forth Bailey's response to the complaint. Regarding the specific email which triggered the November investigation, the letter states, among other things, that, "[i]n retrospect, the e-mail may not have been in good taste when taken in isolation, but it clearly does not rise to the level of unprofessional or inappropriate conduct of a sexual harassing nature." Regarding the additional emails, the letter asserts their irrelevance to the original complaint and makes no substantive response. The letter requests an "opportunity to be heard on this matter before any disciplinary measures are taken."

Also on November 29, Dr. Morton sent a memo to Director Hord in which she recited the results of her investigation. The memo states that her findings

support the charge of improper conduct for the following reasons:

1) Mr. Bailey's behavior (including an email) toward a female teacher (the complainant) created an uncomfortable work environment, although the email itself does not specifically meet the definition of sexual harassment. In this email Mr. Bailey made inappropriate remarks about another female teacher.

2) Mr. Bailey named specific students in his emails to another teacher, and described sexual activities of those students, which he stated had been disclosed to him.

The memo concludes with Dr. Morton's recommendation that Bailey be dismissed from employment with Blount County Schools.

On November 30, 2006, Director Hord sent Bailey a letter containing the following:

I have reviewed the information from a recent investigation into a complaint of sexual harassment and inappropriate conduct filed against you by a teacher at Heritage High School. I have also reviewed documents obtained in the course of that investigation (emails between you and another teacher at Heritage High School). In addition, I have read the letters I received from [your lawyer] regarding his legal representation.

Findings from the investigation support the charge of improper conduct for the following reasons:

Your behavior (including an email) toward a female teacher created an uncomfortable work environment, although the email itself does not specifically meet the definition of sexual harassment.

You used school email to correspond with another female teacher, in which you named specific students and described sexual activities of those students, which you state had been disclosed to you.

You are dismissed from employment with Blount County Schools as of this date, for improper conduct.

Board of Education Policy 5.202 provides the opportunity for you to request a hearing before a Personnel Hearing Officer. Under the policy you have the right to be represented by counsel; call and subpoena witnesses; examine all witnesses and require that testimony be given under oath. Requests for a hearing must be filed in writing within ten (10) days of this notification.

On December 5, 2006, counsel for Bailey sent Director Hord a letter "as official and written request pursuant to the policies of Blount County Schools for Joey Bailey to have a hearing in regards to your decision to terminate his employment." The letter makes no claim that Bailey was entitled to any particular hearing prior to his dismissal.

On January 9, 2007, an administrative personnel hearing ("the Full Hearing") was convened before personnel hearing officer Martha Haren McCampbell, an attorney ("the Personnel Hearing Authority"). Bailey's attorney was present and actively participated in this hearing. Bailey did not appear and his absence was explained only as follows:

MS. McCAMPBELL: It is ten after 10:00, and by agreement, Counsel, this [hearing] is to...

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