Williams v. Shelby County Board of Education

Filing 192

ORDER granting in part and denying in part 182 Motion to Certify Questions to the Supreme Court of Tennessee. Signed by Judge Thomas L. Parker on 09/13/2019. (kah)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

SONYA P. WILLIAMS,
Plaintiff,
v.
SHELBY COUNTY BOARD OF
EDUCATION,
Defendant.

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No. 2:17-cv-02050-TLP-jay
JURY DEMAND

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO CERTIFY
QUESTIONS TO THE SUPREME COURT OF TENNESSEE

Defendant, Shelby County Board of Education (“Defendant” or the “Board”), moves to
certify certain questions of law to the Supreme Court of Tennessee. (ECF No. 182.) Plaintiff, Dr.
Sonya P. Williams, disagrees that certification is appropriate here. (ECF No. 184.) For the reasons
below, the Court GRANTS IN PART AND DENIES IN PART this Motion to Certify.
BACKGROUND
This case is about Plaintiff’s dismissal from the Shelby County School System (“SCS”)
and her unsuccessful attempts later to acquire another position with SCS. (See ECF No. 1.)
Plaintiff filed a five-count complaint alleging: (1) retaliation in violation of the First
Amendment; 1 (2) violation of the Due Process Clause of the Fourteenth Amendment; (3)
violation of the Tennessee Public Protection Act; (4) retaliation under Title VII of the Civil
Rights Act of 1964; and (5) violation of Tennessee Teacher Tenure Act, Tennessee Code

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Plaintiff voluntarily dismissed her First Amendment prior restraint claim. (ECF No. 40.)

Annotated § 49-5-511(b). (Id.) Defendant moved for summary judgment on all Plaintiff’s
claims. (ECF No. 42.) Plaintiff timely responded to the Motion. (ECF Nos. 46 & 76.)
This Court later granted in part and denied in part Defendant’s summary judgment
motion. (ECF No. 88.) Most of the claims were dismissed, but Plaintiff’s Teacher Tenure Act 2
claim survived summary judgment and now this claim undergirds Defendant’s Motion to Certify.
(See id. at PageID 2647; ECF No. 182.) Plaintiff alleges that she was wrongly terminated from
her position with SCS when SCS eliminated her job, along with the entire adult education
program she worked in, because of a loss of grant funding. (ECF No. 1 at PageID 7–8.)
It seemed the case was then ready for trial. At the pretrial conference in January
2019counsel for SCS revealed that the SCS Board passed a new resolution in October 2018 (the
“2018 Resolution”) that allegedly effectively authorized the terminations of certain SCS
employees, including Plaintiff. (See ECF No. 117, 122-3.) The Board’s vote appeared to follow
the Sixth Circuit’s holding in Kelley v. Shelby County Board of Education, 751 F. App’x 650
(6th Cir. 2018).
In that case, the Sixth Circuit affirmed the lower court’s interpretation of the Teacher
Tenure Act. (Id.) The lower court held in that case that the SCS Board violated the Teacher
Tenure Act when the superintendent, not the Board, made the determination to terminate the
plaintiffs under a reduction in force policy. Kelly v. Shelby Cty. Bd. of Educ., 198 F. Supp. 3d
842, 850–54 (W.D. Tenn. 2016). But the district court later ruled that the Board came into
compliance with the Teacher Tenure Act when it passed a resolution in October 2016 (the “2016
Resolution”) authorizing the termination of these same teachers. See Kelley, 751 F. App’x at
653. The Sixth Circuit affirmed this decision but noted that:

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Tennessee Code Annotated § 49-5-511(b).
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[t]he Board’s post hoc resolution, two years after the fact, cannot cure the harm
caused by the improper layoffs and loss of jobs for the individual teachers.
However, once the district court held that the Board had violated its nondelegable
duties, the Board took immediate action to correct its violation, creating a
resolution to ratify the excessing decisions. In so doing, the Board was in effect
taking ultimate responsibility for the excessing decisions, bringing the previously
unlawful terminations into compliance with Tennessee law.
Id. at 656.
Turning to this case, the SCS Board later voted on the 2018 Resolution to “expressly
approve” the excessing of certain employees whose names were not included on the 2016
Resolution and to bring those excisions into compliance with state law. (See ECF No. 122-3 at
PageID 3326.) Defendant included Plaintiff’s name on this list. (Id. at PageID 3328.) Thus, the
Board acted on Plaintiff’s excision over two years after she was terminated and Plaintiff seeks
damages for that period. Now Defendant questions whether Plaintiff is entitled to damages for
the period between her termination and the Board’s resolution.
And so Defendant seeks to certify five (5) questions of law to the Tennessee Supreme
Court under Tennessee Supreme Court Rule 23. (ECF No. 182.) Plaintiff disputes the need to
certify these questions, arguing that the statute lays out the steps the Board must take to
terminate a teacher because of a reduction in force. (ECF No. 184.) And that case law has
properly interpreted the statute as providing a remedy for teachers excised in violation of § 49-5511(b). (Id. at PageID 4948–51.)
In any event, the Court addresses the Motion to Certify with these arguments in mind.
LEGAL STANDARD
Tennessee Supreme Court Rule 23 permits federal courts to certify questions of state law
to the Tennessee Supreme Court when the questions are (1) determinative of the cause of action
and (2) there is no controlling precedent from the Tennessee Supreme Court. Tenn. Sup. Ct. R.
23 §1. The certification decision “lies within the sound discretion of the district court.”
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Pennington v. State Farm Mutual Auto. Ins. Co., 553 F.3d 447, 449–50 (6th Cir. 2009) (quoting
Transam. Ins. Co. v. Duro Bag Mfg., Co., 50 F.3d 370, 372 (6th Cir. 1995)). The United States
Supreme Court supports certification “when there are ‘[n]ovel, unsettled questions of state law.’”
Lindenberg v. Jackson Nat’l Life Ins. Co., 912 F.3d 348, 371 (Larsen, J. dissenting) (quoting
Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997)). Certification is an effective
tool in our federal system because it prevents federal courts from having to make state law and it
“promotes judicial efficiency and comity and also protects [the] state’s sovereignty.” Eiswert v.
United States, 619 F. App’x 483, 486 (6th Cir. 2015) (quoting Renteria-Villegas v. Metro. Gov’t
of Nashville & Davidson Cty., 382 S.W.3d 318, 320 (Tenn. 2012)). Federal courts may sua
sponte certify a question to the Tennessee’s highest court when the district court finds these
requirements. See Eiswert, 619 F. App’x 483.
The Court addresses the Motion with these principles in mind.
ANALYSIS
Defendant argues that the Court should certify these five questions of law to the
Tennessee Supreme Court:
(1)

Is a tenured teacher, who was improperly excessed by a school board under Tenn.
Code Ann. § 49-5-511(b) entitled to back pay damages?

(2)

If yes, is a tenured teacher, who was improperly excessed by a school board under
Tenn. Code Ann. § 49-5-511(b), entitled to back pay damages when, before a
Court rules that the school board improperly excessed the teacher, the school
board passes a resolution in compliance with the statute?

(3)

If yes, what is the statute of limitations for asserting a back pay damages claim
under Tenn. Code Ann. § 49-5-511(b)?

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(4)

When a school board omits a tenured teacher’s name from a list attached to a
school board resolution intended to excess the teacher under Tenn. Code Ann. §
49-5-511(b), and the school board later cures its omission by a resolution that
includes the teacher’s name and states the board’s original intent, are any backpay damages to which the teacher may be entitled capped on the date that the
board intended to excess the teacher?

(5)

When a school board properly excesses a teacher under the Teacher Tenure Act,
are the provisions of Tenn. Code Ann. § 49-5-511(b)(2)–(3), requiring “written
notice of dismissal” and “place[ment] on a list for reemployment,” mandatory or
directory?

(ECF No. 182 at PageID 4926–27.)
I.

Determinative of the Cause of Action
Non-determinative questions of law are not suitable for certification. Tenn. Sup. Ct. R.

23 § 1. Questions are determinative if they are claim-dispositive. Lindenberg v. Jackson Nat’l
Life Ins. Co., 147 F. Supp. 3d 694, 700 (W.D. Tenn. 2015). The Court, therefore, decides
whether the answers to these questions dispose of the cause of action.
A.

Questions one, two, four, and five are determinative of Plaintiff’s claim.

The Court finds that questions one, two, four, and five are all determinative of Plaintiff’s
claim. Questions one and two are determinative because an answer from the Tennessee
Supreme Court will inform this Court whether Plaintiff is entitled to any redress for her claim.
Question four is also determinative because the answer to this question controls the extent of
damages to which Plaintiff may be entitled. And the Court finds that question five is
determinative because it will answer whether the failure to place Plaintiff on a list for
reemployment constitutes an actionable violation of the statute and whether she may have a due
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process right in placement on the list. And Plaintiff did not receive notice from the Board itself
until January 2019 (see ECF No. 122-6), so the Board may not have come into compliance with
the Teacher Tenure Act until that time if the written notice requirement is mandatory. For that
reason, question five also decides Plaintiff’s claims.
B.

Question three does not decide Plaintiff’s claim.

Question three is not determinative because Plaintiff filed this lawsuit less than one year
after she was terminated. This would be within the applicable time for any limitations period
known to this Court. For instance, Tennessee law provides a one-year statute of limitations
period for actions involving statutory penalties. Tenn. Code Ann. § 28-3-104(a)(1)(C). On the
other hand, the limitations period would be six years if the Court interprets this as a contract
action. Tenn. Code Ann. § 28-3-109(a)(3). What is more, the statute of limitations period would
be ten years under the catchall limitations period if neither one of these other time periods
applies. See Tenn. Code Ann. § 28-3-110(a)(3); see also Haynes v. Shelby Cty. Bd. of Educ., No.
2:17-cv-2305-SHL-cgc, 2018 WL 1558284, at *4–5 (W.D. Tenn. Jan. 30, 2018). Under
Tennessee law, Plaintiff’s complaint would be timely under any of these limitations periods. So
this question does not resolve Plaintiff’s claim. This Court therefore will not certify this question
to the Tennessee Supreme Court.
The Court next looks to whether questions one, two, four, and five are novel or unsettled
questions of law.
II.

Novel or Unsettled Law
Federal courts should seek to certify mainly questions of law that are new or where “state

law is unsettled.” See Pennington, 553 F.3d at 450 (6th Cir. 2009) (quoting Transam. Ins. Co.,
50 F.3d at 372). This Court will not certify a question of law if there is “a reasonably clear and

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principled course” in prior law. Id. (quoting Pino v. United States, 507 F.3d 1233, 1236 (10th
Cir. 2007)). It is enough that relevant law provides adequate guidance to allow the federal court
to make a clear and principled decision to decline certification. Id.
A.

Question one concerns unsettled law.

The remedies afforded a teacher who is terminated in violation of Tennessee Code
Annotated § 49-5-511(b) appears to be in flux following the Tennessee Supreme Court’s ruling
in Emory v. Memphis City Schools Board of Education, 514 S.W.3d 129 (Tenn. 2017). In that
case, the Tennessee Supreme Court held that courts were not at liberty to create a remedy for a
violation of a portion of the Teacher Tenure Act about post-dismissal hearings that did not itself
contain a specific penalty for noncompliance. 3 Id. at 145.
Before Emory, Tennessee and federal courts interpreted the remedy of back pay and
reinstatement in § 49-5-511(a)(3) as the appropriate remedy for violating § 49-5-511(b). See
Kelley, 198 F. Supp. 3d at 855–56, aff’d, 751 F. App’x 650, 656 (6th Cir. 2018); Lee v. Franklin,
237 S.W.3d 322, 337 (Tenn. Ct. App. 2007); Randall v. Hankins, 675 S.W.2d 712, 714 (Tenn.
Ct. App. 1984). But subsection § 49-5-511(a)(3) addresses the remedy afforded teachers
suspended for one of the reasons stated in § 49-5-511(a)(2). Subsection (b) of that statute
addresses a different set of circumstances––when a teacher has been terminated because of a
reduction in force policy. Compare § 49-5-511(a), with § 49-5-511(b).
Tennessee courts applying § 49-5-511(a)(3)’s remedial measures to violations of § 49-5511(b) did so in the context of the school board’s failure to give a teacher the preference for
reemployment provided for under the previous version of § 49-5-511(b)(3). See Lee, 237

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The Tennessee Supreme Court held that because § 49-5-512(a)(2) did not itself provide a
remedy for its violation, courts “are not at liberty to judicially modify the Act.” Emory, 514
S.W.3d at 145.
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S.W.3d at 337 (“Our finding that [the plaintiff] was wrongfully denied reemployment . . . is
equivalent to finding that a teacher, who was suspended without pay, has been vindicated and
should be reinstated.”); Randall, 675 S.W.2d at 714 (remanding and directing the chancery court
to enter an order requiring the school district to re-employ the plaintiff in the first available
position and to enter a judgment for the financial loss suffered from the time the board failed to
consider plaintiff for re-employment as required by the statute). The statute no longer gives
preference to teachers on the reemployment list. See 49-5-511(b)(3). And the Tennessee Court
of Appeals applied this remedy only after finding that situations involving violations of § 49-5511(b) were like issues covered by § 49-5-511(a)(3). Lee, 237 S.W.3d at 337. This is unlike
finding that § 49-5-511(b) provides a specific penalty for noncompliance. See Emory, 514
S.W.3d at 145 (“As noted by the intermediate appellate court, the time provision in section 49-5512(a)(2) carries no specific penalty for noncompliance. Courts are not at liberty to rewrite
statutes.”).
All that said, the Court finds that the Tennessee Supreme Court’s holding in Emory casts
doubt on the validity of cases such as Lee and Randall which state that back pay and
reinstatement––as provided for in § 49-5-511(a)(3)––are the appropriate remedies for violating §
49-5-511(b)(1)–(3). This Court is thus left without a “clear and principled course” to follow in
deciding these issues of law. The Court will thus certify this question to the Tennessee Supreme
Court. 4
B.

Question two concerns a settled question of law.

Question two asks whether a school board can prevent liability from attaching for the
improper excision of a teacher by passing an after-the-fact resolution that complies with the

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The Court will adjust the wording of the question to better address the issues here.
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termination provisions of the Teacher Tenure Act before a court issues a ruling that the teacher
was improperly excised. This question is not novel because caselaw establishes that an after-thefact remedial action, such as this one, cannot erase harm already suffered. See Kelley, 751 F.
App’x at 656 (“The Board’s post hoc resolution, two years after the fact, cannot cure the harm
caused by the improper layoffs and loss of jobs for the individual teachers.”); cf. First English
Evangelical Lutheran Church of Glendale v. Los Angeles Cty., 482 U.S. 304, 319 (1987)
(holding that invalidation of an ordinance after a “taking” has already occurred under the Fifth
Amendment does not negate the government’s duty to provide compensation for the period of
the temporary taking). The law does not allow for such a manifest injustice to take place. For
that reason, question two does not concern an unsettled question of law. So this Court will not
certify this question.
C.

Question four is a novel question of law.

Question four, put another way, asks what process a school board must use to comply
with the Teacher Tenure Act when dismissing a teacher under a reduction in force policy. That
is, may the school board simply vote to adopt the proposed dismissals without listing the names
of all the dismissed teachers? This is a question of law without an answer from the Tennessee
Supreme Court or any federal court in this jurisdiction. The Court will therefore certify this
question to the Tennessee Supreme Court with certain modifications.
D.

Question number five is a novel question of law.

Defendant asks this Court to certify a question about whether the notice and placement
requirements of § 49-5-511(b)(2)–(3) are mandatory or directory. (ECF No. 182 at PageID
4927.) The relevant provisions state:

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(2) The board shall give the teacher or nonlicensed employee written notice of
dismissal explaining fully the circumstances or conditions making the dismissal
necessary; and
(3) A teacher rated in the three (3) highest categories based on evaluations
pursuant to § 49-1-302 who has been dismissed because of abolition of a position
shall be placed on a list for reemployment.
Tenn. Code Ann. § 49-5-511(b)(2)–(3).
Tennessee courts have addressed mandatory versus discretionary statutory
provisions. “In general, use of the word ‘shall’ in a statute indicates that the statutory
provision is mandatory, not discretionary.” Emory, 514 S.W.3d at 144 n.11. But there
are exceptions to this rule. For instance, courts must determine the legislative intent,
considering the whole statute, to determine whether a procedural requirement of a
statute is directory or mandatory. Scheele v. Hartford Underwriters Ins. Co., 218
S.W.3d 636, 640 (Tenn. 2007) (quoting Presley v. Bennet, 860 S.W.2d 857, 860–61
(Tenn. 1993)). Things to consider include the nature and purpose of the statute. Id.
And whether the statute provides a specific consequence for noncompliance with its
provisions. Emory, 514 S.W.3d at 144 n.12.
The law has also created presumptions to help address this issue. For example,
statutory provisions addressing the time when one must perform a certain act are
typically directory rather than mandatory. Id. at 114 n.11 (quoting Home Builders Ass’n
of Middle Tennessee v. Williamson Cty., 304 S.W.3d 812, 819 (Tenn. 2010)). And
provisions relating to the method of doing an act are interpreted as directory. Presley,
860 S.W.2d at 860.
The relevant statutory provisions here fall in a gray area. Both provisions use the
word “shall.” See Tenn. Code Ann. § 49-5-511(b)(2)–(3). While this generally means
that the legislative directive is mandatory, the statute does not provide specific
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consequences for noncompliance. And he Tennessee Supreme Court has not addressed
whether these provisions are mandatory or directory. So the Court finds that this
question of law is unsettled and certifies it for the Tennessee Supreme Court’s review.
CONCLUSION
For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART
Defendant’s Motion to Certify Questions of Law to the Tennessee Supreme Court. (ECF No.
182.) The Court GRANTS the request to certify questions one, four, and five, as modified, and
will certify these questions to the Tennessee Supreme Court:
1)

Is a teacher whose position was abolished and who was terminated from
her employment with the school system due to a reduction in force under
the provisions of Tennessee Code Annotated § 49-5-511(b)(1)–(3)
entitled to back pay damages when the school board fails to act as the
final decision–maker on her termination as required by § 49-5-511(b)(1),
or when the board does not provide the teacher notice under § 49-5511(b)(2), or when the board does not place a qualified teacher on a
reemployment list as provided for in § 49-5-511(b)(3)?

2)

Is the Teacher Tenure Act, Tennessee Code Annotated § 49-5-511(b)(1),
violated when the school board votes on the dismissal of teachers
terminated under a reduction in force policy during a certain time frame,
when some of those teachers’ names are listed on the resolution but the
plaintiff’s name was not listed due to an error?

3)

Are the provisions of Tennessee Code Annotated § 49-5-511(b)(2)–(3),
requiring “written notice of dismissal” and “place[ment] on a list for
reemployment,” mandatory or directory?

The Court DENIES the Motion on the other questions. The Court will enter a separate order of
certification. And the Court will also enter an order administratively closing this case pending
the resolution of the certification question.
SO ORDERED, this 13th day of September, 2019.
s/ Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE

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