IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

On-Briefs August 24, 2004

CLARENCE MUMFORD v. BOARD OF EDUCATION OF THE CITY OF

MEMPHIS.

A Direct Appeal from the Chancery Court for Shelby County

No. CH-02-1535-1 The Honorable Walter L. Evans, Chancellor

No. W2004-01022-COA-R3-CV - Filed October 25, 2004

Board of Education of the City of Memphis suspended tenured teacher and assistant principal

without pay pending an investigation of child abuse by the Department of Children’s Services. After

teacher was reinstated, he sought to recover lost wages under T.C.A. §49-5-511. Trial court found

that teacher was entitled to recover but that such recovery should be offset by wages earned during

the period of suspension. We affirm as modified herein.

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

Modified

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and DAVID R. FARMER, J., joined.

Leonard E. Van Eaton of Memphis, For Appellant, Clarence Mumford

Ernest G. Kelly of Memphis, For Appellee, Board of Education of the City of Memphis

OPINION

The facts of this case are undisputed and the parties filed a “Joint Stipulation of Facts” on

December 16, 2003. At the time the circumstances of this case arose, Clarence Mumford

(“Mumford,” “Plaintiff,” or “Appellant”) was employed as an Assistant Principal at Humes Junior

High School in Memphis, Tennessee. On November 12, 1996, Mumford administered a paddling

to one of his students. As a result of the paddling, the student allegedly suffered some bruising and

the student’s parents complained to the General Sessions Court of Shelby County. Mumford was

summoned as a defendant and, following a hearing, the charges were dismissed and he resumed his

duties as Assistant Principal. The parents of the student continued to pursue the matter and filed a

complaint with the Department of Children’s Services (“DCS”), alleging that Mumford was a

perpetrator of child abuse. On April 15, 1997, the Board of Education of the City of Memphis
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(“Board,” “Defendant,” or “Appellee”) received a letter from DCS, which reads, in relevant part, as

follows:

In accordance with State rule 1240-7-9-.09, DCS is notifying you that

Clarence Mumford has been identified as the alleged perpetrator of

child abuse in an indicated report that DCS has investigated. DCS

has notified Mr. Mumford of the report and of the right to a hearing

on the allegations. This information is confidential; therefore, you

may not release it to anyone else.

It is our understanding that Clarence Mumford is in a caretaker,

supervisory instructional, or treatment role with your agency, which

constitutes an emergency situation as described in DCS rules. You

must take immediate action to ensure that Clarence Mumford has no

access to or contact with any child in the care of your agency until

further notice by DCS.

If your agency does not take immediate action as described abo[ve],

DCS will take action to suspend, revoke, or deny your agency’s

license, if licensed by DHS. If DHS does not license you[r] agency,

it will pursue other action necessary pursuant to TCA 71-3-530 in

order to protect the children in your organization’s care (including

seeking injunctive relief).

DCS will notify you[r] agency in writing of the final decision on the

case, whether that is by administrative hearing, court order, or waiver

of due process rights by the alleged perpetrator.

On April 21, 1997, the Board, acting through its Personnel Division, relieved Mumford of

his duties, without pay, while the matter was resolved between Mumford and DCS. Following

notification of his suspension, Mumford contested the DCS ruling and was afforded a hearing before

the Administrative Law Judge, who made a preliminary ruling that the claim of child abuse had not

been proved. The Administrative Law Judge was overruled by DCS’ Deputy Commissioner on

March 23, 1998. Mumford appealed to the Chancery Court of Shelby County. On November 17,

1998, the trial court entered its Findings of Fact and Conclusions of Law, which overruled the action

of the DCS Deputy Commissioner and reinstated the findings of the Administrative Law Judge.

During the pendency of these appeals, Mumford procured employment with the Tunica County,

Mississippi Board of Education. This employment was at a lower rate of pay than Mumford’s salary

with Memphis City Schools.

On February 12, 1999, the Board offered to reinstate Mumford. At that time, Mumford chose

to finish the school year at Tunica. Consequently, the parties agreed that Mumford would limit any

claim for back wages to the period ending on February 12, 1999. When Mumford made demand
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for reimbursement for lost wages for the period of his suspension, the Board refused to pay. On

August 13, 2002, Mumford filed a “Complaint to Recover Unpaid Wages.” On February 11, 2003,

the Board filed its Answer, in which it admits that the Board suspended Mumford from his position

without pay, but denies liability for back pay under T.C.A. §49-5-511.

 The parties’ respective positions are set out in this “Joint Stipulation of Facts” as follows:

10. The Plaintiff seeks back pay and benefits in full for the entire

time of his relief of duties from the Memphis City Schools system.

He contends that his right to back wages and benefits is controlled by

T.C.A. §49-5-511...and that this sum should not be diminished by

offsetting his earnings at Tunica, Mississippi.... It is the contention

of the Board of Education that it took no action against the Plaintiff

other than action that was required of it by a state agency and that it

should not be responsible for any losses resulting from the rejected

charges brought by the parents and by the Department of Children’s

Services. It is the further position of the Board that, if any damages

were to be awarded, it would be entitled to offset the earnings in

Tunica for that entire period. The Defendant further contends that

T.C.A. §49-5-511 is inapplicable to this situation in that there have

been no proceedings under the tenure law and that this section does

not apply under the pleadings and proof in this case. Defendant

further contends that the current interpretation of T.C.A. §49-5-511,

if it were deemed applicable to this case, is subject to review and

reconsideration and should be changed to allow such offset.

11. It is the contention of the Plaintiff that the Department of

Children’s Services (DCS) acted pursuant to T.C.A. §71-3-

530...which code section clearly provides that in the case of an agency

not licensed by or subject to licensure through the DCS the

department may proceed to bring an action in the chancery court to

enjoin the person the department deems responsible for abuse from

continuing to provide care for children. Plaintiff further contends that

the Defendant is not licensed by the DCS and is not subject to

licensure and removing Plaintiff from his position as assistant

principal was not required by law and was a personnel management

decision by Defendant.

This matter was heard on March 9, 2004. On April 2, 2004, a Final Judgment was

entered, which reads, in pertinent part, as follows:

...[I]t appears to the Court that the Plaintiff, Clarence

Mumford, is entitled to back wages for the 1997-98 school year in the
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amount of $16,145.82 and for the 1998-99 school year in the amount

of $8,715.64 for a total judgment of $24,861.46.

The Court finds that, under the circumstances of this case, the

Plaintiff is not entitled to his further claims for summer work,

vacation days, retirement contributions, or social security

contributions but that all such claims, to the extent applicable, are

included in the amount of the judgment set forth above. The Court

further finds that, pursuant to the common law principles and

principles of equity, the Defendant is entitled to offset the wages

earned by the Plaintiff for the same time period while the Plaintiff

was employed by...the Tunica, Mississippi School and that under the

circumstances of this case, TCA 49-5-511 does not require the denial

of such common law offset. The amount of the judgment as set out

herein reflects this offset.

* * *

Based on the foregoing, the Court enters Judgment in favor of

the Plaintiff, Clarence Mumford, and against the Board of Education

of the Memphis City Schools in the amount of $24,861.46....

Mumford appeals and raises two issues for review as stated in his brief:

I. Did the Chancellor err in ruling that although the Plaintiff is

entitled to back wages for the 1997-98 and 1998-99 school [years]

that T.C.A. §49-5-511 does not denythe Defendant the right to off-set

against Plaintiff’s lost wages the amounts that Plaintiff earned during

that time period as an employee of the Tunica Mississippi School

Systems.

II. Did the Chancellor err in denying the Plaintiff recovery of income

he would have earned during the applicable time period for career

ladder payments for summer work in the school system, vacation

days, retirement contributions, and social security contributions due

from the Defendant.

The Board raises the following additional issue in its brief: Whether a tenured teacher or

assistant principal, who is barred from his duties as the result of a directive of a state agency, is

entitled to recover back pay upon reinstatement.

The resolution of the issues in this case rests first on the question of whether T.C.A. §49-5-

511 is applicable given the facts of this case and, if applicable, whether and to what extent Mumford

is entitled to recover for lost wages during his suspension. Construction of a statute and application
 The term “teacher,” as used in this statute includes “teachers, supervisors, principals, director of schools and 1

all other certificated personnel employed by any local board of education, for service in public, elementary and secondary

schools in Tennessee....” T.C.A. §49-5-501(10) (2002).

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of the law to the facts is a question of law for the court. See Sanifill of TN v. TN Solid Waste

Disposal, 907 S.W.2d 807, 810 (Tenn.1995). As such, our review of the trial court’s order is de

novo upon the record with no presumption of correctness accompanying the trial court’s conclusions

of law. See Tenn. R. App. P. 13(d); Waldron v. Delffs, 988 S.W.2d 182, 184 (Tenn. Ct. App. 1998);

Sims v. Stewart, 973 S.W.2d 597, 599-600 (Tenn. Ct. App. 1998).

T.C.A. §49-5-511 (2002), under which Mumford sued to recover lost wages for the period

of his suspension, reads, in relevant part, as follows:

(3) A director of schools may suspend a teacher at any time that may

seem necessary, pending investigation or final disposition of a case

before the board or an appeal. If vindicated or reinstated, the teacher

shall be paid the full salary for the period during which the teacher

was suspended.1

T.C.A. §49-5-511(a)(3).

Applicability of T.C.A. §49-5-511 

The Board asserts that T.C.A. §49-5-511 is not applicable to the case at bar because

Mumford was not suspended “pending investigation or final disposition of the case before the

Board.” Relying on the words “before the Board,” the Board reasons that it cannot be held liable

for Mumford’s lost wages since the disposition of the case against Mumford was not within the

Board’s control, it being a party neither to the General Sessions nor to the DCS proceedings. 

In the Joint Stipulation of Facts, the Board concedes that it acquiesced to the demands of the

DCS letter. Because he did not demand a hearing before the Board, as was his right under T.C.A.

§49-5-512, Mumford, too, acquiesced to the DCS letter. In its brief, the Board asserts that it had no

choice but to suspend Mumford since the Board was “under a statutory restraint pursuant to T.C.A.

§71-3-530.” T.C.A. §71-3-530 (1995) reads, in relevant part, as follows:

(2) If the department determines that abuse, neglect, or sexual abuse

has occurred and the person or agency fails to take appropriate action

to prevent future abuse, neglect, or sexual abuse, the department shall

take such action as may be necessary to revoke, suspend, or deny the

agency’s license. If the person or agency is not licensed or not

subject to licensure, the department may proceed to bring an action

in the chancery court of the county of the defendant’s residence or the

county in which the abuse, neglect, orsexual abuse occurred to enjoin
 T.C.A. §71-3-530 was repealed by Acts 2000, ch. 981 § 1, effective July 1, 2000. The DCS letter, which 2

references this statute was written on April 15, 1997 and is set out supra.

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the person or agency or any individual found by the department to

have been responsible for the abuse, neglect, or sexual abuse from

continuing to provide care for children on a full-time or part-time

basis.

T.C.A. §7-3-530(2).2

Nothing in T.C.A. §71-3-530 indicates that DCS can mandate the Board to suspend one of

its employees. Rather, T.C.A. §71-3-530 indicates that DCS “may proceed to bring an action...to

enjoin the person or agency or any individual found by the department to have been responsible for

the abuse...from continuing to provide care for children....” Short of a court order, it was not

imperative that the Board suspend Mumford in response to DCS’ April 15, 1997 letter. The Board,

however, stipulates to the fact that it “compli[ed] with that letter pending the ultimate outcome of

the department [DCS].” In its brief, the Board asserts that “[t]his case has arisen primarily because

the pattern of reversals following [DCS’] initial determination consumed more than a year and a half

to arrive at an ultimate solution....” Because it was under no legal obligation to suspend Mumford

based solely on DCS’ letter, at any time during the pendency of the DCS investigation and appeals

process, the Board could have reinstated Mumford or could have conducted its own investigation

of the allegations against him. Thus, the timeliness and ultimate disposition of this case could have

been “before the Board” had the Board so chosen. However, the Board opted to await the final

outcome of the DCS case. The fact that the Board acquiesced to DCS should not remove the Board

from liability under T.C.A. §49-5-511 since this decision represents a choice by the Board and not

a legal mandate.

Damages

Having found that T.C.A. §49-5-511 is applicable to this case, we now turn to the issue of

whether and to what extent Mumford should recover thereunder. T.C.A. §49-5-511 clearly states

that, “[i]f vindicated or reinstated, the teacher shall be paid the full salaryfor the period during which

the teacher was suspended.” The Board contends that the trial court was correct in allowing an offset

against Mumford’s salary of the amount he earned while working in Tunica County. We disagree.

In Jones v. Brown, 727 S.W.2d 497 (Tenn. 1987), our Supreme Court held that T.C.A. §49-5-

511(a)(3) means that the reinstated teacher is entitled to full salary with no offset allowed. See also

Bates v. Deal, 728 S.W.2d 326 (Tenn. 1987). 

The parties stipulate that Mumford’s total compensation for the 1997-98 school year was

$55,331.00, and that Mumford’s salary for the 1998-99 academic year, up to February 12, 1999, was

$34,597.00. In addition, Mumford asserts that he lost $5,420.00 in career ladder payments over the

two summers of his suspension, and that he is entitled to recover for sick days, vacation days, lost

contributions to his retirement fund, and social security benefits on his lost wages.
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T.C.A. §49-5-511 clearly limits recovery to “full back pay at the rate of a teacher’s salary,”

Jones, 727 S.W.2d at 499, and there is no allowance for the recovery of benefits. Consequently, we

find that Mumford is entitled to recover $55,331.00 for the 1997-1998 school year and $34,597.00

for the 1998-1999 school year. However, under the plain language of the statute, he is not entitled

to recover for career ladder benefits, vacation days, sick days, retirement contribution, or social

security contribution. 

For the foregoing reasons, we modify the Judgment of the trial court to reflect an award of

damages in favor of Mumford and against the Board in the amount of $89,928.00 and affirm the

Judgment as modified. Costs of this appeal are assessed against the Appellee, Board of Education

of the City of Memphis. 

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.