### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE Fe br ua ry 15, 200 5 S es sio n
LEE K ETC HER SID v. RH EA COU NTY BOA RD OF ED UC ATION

Appeal f romthe Chancer y Court for Rhea County No. 9699 Jeffrey F . Stewart, Chancellor

No. E2004-01153-COA- R3-CV - F ILED APR IL 28, 2005

L ee K etche rsid, a tenur ed tea cher in the Rhea County School Sy stem, appea led her dismiss al to the Rhe a Co u n ty B o ar d o f E d u c a ti o n ( “ th e Sc h o o l B o ar d ” )

. F o ll o w in g a h e a r in g , th e Sc h ool Boa rd determ i n ed that the evidenc e supported the char g es ag ainst Mrs. Ketche rsid of insubordination, incompetenc e, and ine fficie ncy under the Tea cher s’ Tenur e Ac t, Ten n
. C o d e Ann. § 49-5-501, et seq. , a ndvo te d t o ter mi nat e Mr s. Ke tc he rs id a s a te nu re d te a c he r. Mr s. Ke tc he rs id appea led the School Boa

rd’s de cision to the trial court, whic h, following a de novo revie w, held that her dismiss al
wa s su pp orte d by su ff

ic ie nt e vid e nc e
. Mr s. Ke tc he rs id app e a ls, arg uin g that the tr ia l c ou rt e rr e d in thi s d e te rm inatio n. We a ff ir m. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Chancer y Court Aff irm ed; Case R em anded

C H A RLES D. S US ANO , J R ., J ., delivere d the opinion of the court, in whic h H ER SCH EL P. F RAN KS , P.J ., and S HAR ON G. LEE , J ., joined.

J . Arnold F itz g era ld, Dayton, Tennesse e, for the appe llant, L ee K etche rsid.

Robert G. Wheeler , J r. and D eborah A.G. Smith, Nashville, Ten n es s ee , for the a ppellee, Rhe a CountyBoa

rd of Educ ation.
OP IN ION

I.

Du ri ng the 20 00 -2 00 1 sc ho ol y e ar, Mr s. Ke tc he rs id, wh o wa s c e rt if ie d to te a c h c hil dr e n in g rade s K-12, wa s a kinderg arte n teac her at Gra y sville Elementary School. Due to her

failure to meet the re quirements of an improvement plan at Gray sville, Mrs. Ketche rsid was tra nsfer red to Rhea Central Eleme ntary

School at the beginning of t he 2001-2002 school y ear and placed in cha rg e of a “T itle I ” classroom of seven third-g rade students. These students w ere identified as being below-2-

their g rade level and in need of reme dial instruction; the s tudents wer e not, howeve r, pl ace d in the classroom due to behaviora l or discipline problems.

On Octobe r 11, 2001, one of Mrs. Ketche rsid’s s tudents came to assistant principal B uddy J ackson’ s office in tear s, explaining t hat M rs. Ketchersid had “smac ked her on the fa ce.” Assistant Principal J ackson the n met with the child and her pare nts, as well as Mrs. Ketche rsid, in an attempt to de te rm ine wh a t had ha

pp e ne d. Th e fo llo wi ng da y , Jac ks on a ndPr inc ipa l D ou g Ke y lon me t w ith Mrs. Ketc hersid to discuss her treatment of students. At that time, both J ackson a nd Key lon stressed to Mr s. Ketche rsid the importance of being positive with the children and told her that sh e wa s n ot, un de r any c ir c ums ta nc e s, to p ut h e r h a nd s o n th e stu de nts

. I n F e br ua ry , 2 00 2, a noth er stu de nt’ s p are nts re po rt e d to Pr inc ipa l K e y lon that Mr s. Ketche rsid had slappe d their child. Principal Key lon reported t his alleg ation to Dr. Sue Porter , the Direc tor of R h ea CountySchools. On Fe bruary 12, 2002, Direc tor Porter a nd Assistant Director Dallas Smith, along w ith Principal Key lon and Assis tant Principal J ackson, interviewed some of the students from Mrs. Ke tcher sid’s cl as sroom on an individual basis. The students informe d the adm in is tr a to r s th a t M r s
. K e tc h e r s id w o u ld p la c e h e r h a n d s o n th e ir f a c e s w h e n s h e beca me ang ry wi th the m. O ne stu de nt t oldthe g ro up of a dmi nis tr a tor s that Mr s. Ke tc he rs id wo uld of te n h it h im over the head w ith a soft-cove r textbook. More than one st udent refer red to Mrs. Ke tcher sid having p i n c h e d t h e i r

c h e e k s w h e n s h e w a s a n g r y.
F oll ow ing the se me e tin g s wi th the stu de nts , th e a dmi nis tr a tor s b ro ug ht M rs . K e tc he rs id i n fo r a p r iv a te me e ti n g
. Wh e n q u e s ti o n e d a s to w h e th e r s h e h a d h it s tu d e n ts o v e r th e h e a d w ith a bo ok , M rs . K e tc he rs id r e pli e d th a t sh e ha d d on e so wh e n she wa s ang ry , an d she the n p ro c e e de d to de mon str a te by takin g a le g a l pa d a nd tapp ing Pr inc ipa l K e y lon on the he a d. Mr s. Ke tc he rs id a lso admitted to placing her ha nds on the fac es of or slapping five out of her se ven students. She stated that she did so when she was a ng ry and whe n t h e children wer e being disrespec tful. When asked when she had last plac ed her hands on a st udent’s face , Mrs. Ketc hersid admitted that she ha d done
so that v e r y

mo r n in g
. A t th e c o n c lu s io n o f th is me e ti n g w ith M r s
. K e tc h e r s id , D ir e c to r Porter informed he r that, in light of he r “c omplete insubordination” for failing to f ollow the direc tives of Pr inc ipa l K e y lon a ndAs sis ta nt P ri nc ipa l Jac ks on to r e fr a in f ro m pl a c ing he r h a nd s o n th e stu de nts , s h e w a s n o tt o r e t u r n t o h e r c l a s s r o o ma n d t h a ts h e w a s h e n c e f o r t h s u s p e n d e d w i t h o u tp a y.
On Ma rc h 1 4, 20 02 , Di re c tor Porte r re c omm e nd e d to the Sc ho ol B oa rd that Mr s. Ke tc he rs id be dis mis se d a s a

te nu re d te a c he r f

ro m t he Rhe a

Cou nty Sc ho ol S y ste m, b a se d u po n M rs
. Ketche rsid’s alleg ed insubordination, i ncompetenc e, inef ficienc y , and neg lect of duty . The School B oa rdthe n r e c omm e nd e d M rs . K e tc he rs id’ s d ism iss a l.

Mrs. Ketc hersid re quested a hearing be fore the School Boa rd in order to appea l its decision, which hea

ring was c onducted on J uly 15, 2002. At the conclusion of t he hearing , the S chool B oard determined that the cha

rg es of insubordination, incompetenc e, and ineffic iency wer e supported by the evidenc e, and the School Boa rd, by a vote of 6 to 2, voted t o terminate Mrs. Ketche rsid from her te nu re d p os iti on wi th the Rhe a Cou nty Sc ho ol S y ste m.-3-

Mrs. Ketc hersid appe aled the School B oard’ s decision to the trial court. After revie wing the
rec ord, the trial court found that Mrs. Ke tcher sid rece ived a f air he aring and that ther e wa s sufficient
e vid e nc e to j us tif

y he r d ism iss a l. Fro m th is j ud g me nt, Mr s. Ke tc he rs id a pp e a ls.

II.

I n th is n on -j ury

c a se , o ur re vie w i s de novo upon the re cord of the proc eeding s below; but the re cord c omes to us with a pres u m ption of corr ectne ss that we must honor “unless the preponde ranc e of the evidenc e is otherwise .” Te nn. R. App. P. 13(d). Thetrial court’ s conclusions of l aw, howe ver, a

re a ccor ded no such pr esumption. Cam pbell v. Florida St eel Corp. , 919 S.W .2d 26 , 3 5 ( Te nn . 1 99 6) ; Pre sle y v . Be nne tt , 860 S.W .2d 857, 859 (Tenn. 1993)

.

III

. Th e iss ue s in thi s c a se c a us e us to f oc us on the fo llo wi ng statut ory pr ov isi on s: Tenn. Code Ann. § 49-5-501 ( 2002)

As us e d in thi s p art , u nle ss the c on te xt oth e rw ise re qu ir e s:
* * * (5) “ I ncompetenc e” me ans being incapa ble, l acking adequate power , capa city or ability to c arry out the duties and responsibilities o f t he position. This may

apply to phy sical, mental, e ducational, e motional or other pe rsonal conditions. I t m ay i n clude lac k of training or exp erie nce; e vident unfitness for se rvice ; phy sical, mental or
e mot ion a l con dit ion makin g te a c he r unf it t o in str uc t or a sso c ia te wi th
c h i l d r e n ; o r

i n ab i l i t y t o c o m m a n d r e s p e c tf

r o ms u b o r d i n a t e s o r

to secur e coope ration of those w ith whom the teache r must work;
(6) “ I neff iciency ” mea ns b eing below the sta ndards of eff iciency maintained by others curr ently employ ed by the board [of educ ation] fo r s imi lar w or

k, or ha bitua ll ytard y , in a c c ur a te , o r w a nti ng in
e ff e c tiv e pe rf

orma nc e of

du tie s; (7) “ I nsubordination” may consist of:
(A) Refusal or continued failure to obe y the school laws of Te n n e s s e e , o r

to c o mp ly

w ith th e ru le s a n d r e g u lati o n s o f th e b o ard [of education], or to c arry

out specific a ssignments made by the boar d [of education], the director of schools or the principal, ea ch ac ting-4- with i n its own jurisdiction, when such rules, r eg ulations and
a s s i g n m e n t s ar e r e a s o n ab l e a n d n o t d i s c r i m i n a t o r y;
* * *
Tenn. Code Ann. § 49-5-511 ( 2002) (a) (1) No teac her sha ll be dismiss ed or suspe nded except as pr ovided in this pa rt

. (2 ) T he c a us e s f

or wh ic h a te a c he r m a y

be dis mis se d a

re a s f oll ow s: incompetenc e, ineffic iency , neg lect of duty , unprofe ssional conduct and insubordination as de fined in § 49-5- 501. (3) A dir ector

of schools may

suspend a teache r at a ny

time that may
se e m ne c e ssa

ry , p e nd ing inv e sti g a tio n o r f ina l di sp os iti on of a c a se befo re the boar d [of education] or an appe al. I f vindicate d or reinstated, the teac her sh al l be paid the f ull salary for the pe riod during which the tea cher

was suspende d.
(4 ) W h e n c h ar g e s ar e m a d e t o t h e b o ar d o f e d u c a t i o n a g a ins t a teac her, c harg ing the teach er wi th offense s which would justify dis mis sa l of the te a c he r u nd e r the te rm s o f this pa rt , th e c ha rg e s sh a ll be made in wr i t i ng , specific ally stating the offe nses which a re cha rge d , an d shall be sig ned by the party

or parties making the
c ha rg e s. (5) I f, in the opinion of t he board [of education], charg es ar e of suc h nature as to war

rant the dismissal of the tea cher , t h e d i rector of schools shall g ive the tea cher a written notice of th i s decision, tog e the r w ith a

c op y of the c ha rg e s, a nda

c op y of a fo rm wh ic h s ha ll be provide d by

the commissioner of e ducation advising the teac her a s to the teac her ’s l eg al duties, rig hts and rec ourse unde r the terms of thi s p art

. * * *

Tenn. Code Ann. § 49-5-512 ( 2002) (a) A t eac her, having rec eived notice of cha rg es pursua nt to § 49-5- 511, may , within thirty(30) day s after rec eipt o f n o t i ce , demand a he ari ng be fo re the bo ard[of e du c a tio n], a s f

oll ow s:-5- (1) The teac her sha ll give w ritten notice to t he director of schools of t h e t ea ch er ’s re q u es tfo r ah ea ri n g; (2) The direc tor of schools shall, wit hin five (5) day s after rec eipt of reque st, indicate the place of such hearing and set a convenie nt date, which date shall not be later tha n thirty (30) day s following r ece ipt of
n o t i ce d em an d i n g a h ea ri n g; (3) The teac her ma y

appea r at the hearing and plea d the teac her’ s c a us e in p e rs on or

by c ou ns e l;
(4 ) T he te a c he r ma y pr e se nt wi tne sse s, a nd sh a ll ha ve fu ll o pp ortun ity to p re se nt the teacher’s c on te nti on s a ndto s up po rt the m w ith
e vid e nc e andarg ume nt. Th e te a c he r s ha ll b e a llo we d a fu ll,
c o mp le te , a n d imp ar ti a l h e arin g b e f o r e th e b o ar d [o f

e d u c a ti o n ], including the rig ht to have e vidence deeme d rele vant by the teac her included in the re cord of

the hea ring , even if

objected to by the per son co n d u ct i n g t h e h ea ri n g; (5 ) T he c ha ir

of thebo ard[of

e du c a tio n] c on du c tin g th e hear ing is he re by e mpo we re d to iss ue su bp oe na s for wi tne sse s to c omp e l th e ir
a tte nd a nc e a t he ari ng s authorize d u nd e r this se c tio n. Al l pa rt ie s to th e proc eeding shall have the rig ht to have subpoena s issued by the
c ha i r o f t h e b o ar d [o f e d u c a t i o n ] t o c o m p e l t h e a t t e n d a n c e of a ll witnesses deeme d by such parties to be nece ssary , for a f u l l and complete hearing

. All witnesses shall be e ntitled to the witness fees and mileag e provide d by law for leg al witnesses, whic h fee s and mileag e shall be pa id a s a part of the costs of such proce eding . The
c o s t s o f s u c h p r o c e e d i n g s h a l l b e p a i d b y t h e l o s i n g p ar t y; (6 ) T he c hair of the bo ard[of e du c a tio n] sh a ll a dmi nis te r o a ths to witnesses, who shall testify under oath;
(7 ) Are cord of

the he ari ng , e ith e r b y

tr a ns c ri pt, re c or din g , o r a s is otherwise a g ree d by the parties, sha ll be prepa red, if the action of the board [of educ ation ] i s appea led, and a ll actions of the boar d [of educat i o n ] shall be re duced to writing and inc luded in the re cord, toge ther with all evide nce othe rwise submitted;
(8) On r equest of e ither party to the trial, witn es s es may be bar red from the he aring except as t hey are called to testify

. The he aring may be private at the r equest of the t eac her or in the di scre tion of the boa rd [of education]; and-6- (9) The board [of educat i o n ] s h all within ten (10) day s decide what dispositi on to make of the ca se and sha ll imm ediately there afte r g ive the teac her w ritten notice of its finding s and dec ision. (b ) T he dir e c tor

of sc ho ols or

oth e r s c ho ol o ff

ic ia ls s ha ll n ot b e he ld lia ble , p e rs on all y or

of fi c ia lly , w he n p e rf

ormin g the ir

du tie s in pr os e c uti ng c ha

rg e s a g a ins t a ny

te a c he r o r t e a c he rs un de r this pa rt

. Tenn. Code Ann. § 49-5-513 ( 2002) (a) A t ea ch er under “pe rmane nt tenure” or “limited tenure ” status who i s dismiss ed or suspe nded by action of the board [of educ ation] may petition for a writ of certiorari fr om the chancery court of the county wher e the tea cher

is employ ed.

* * * (g ) The cause shall stand for trial and shall be hea rd and de termined at t he e ar li e s t p r a c ti c a l d a te , a s o n e h a v in g p r e c e d e n c e o v e r o th er litigation, except suits involving state, county or municipal re venue. The re view of the court shall be limited to th e writ ten re cord of the he ari ng be fo re the bo ard[of e du c a tio n] a nda ny

e vid e nc e or

e xhibi ts submitt ed at such hearing. Additional e vidence or testimony shall not be admitted except as to e stablish arbitrary or ca pri ci o us action or violation of statutory

or constitutional rig hts by the boar d. (h) The chanc ellor shall reduc e the c hance llor’s finding s of fa ct and conclusions of law to writing a nd make them pa rts of the re cord. (i) Any party dissatisfied with the decr ee of the court may

appea l as provided by

the Tenne ssee Rules of Appellate P roce dure, w here the
cause shall be hea

rd on the t ransc ript of t he re cord f rom the cha ncery c ou rt

. I V.

On app e a l, M rs . K e tc he rs id o nly a sk s u s to de c ide wh e the r the tr ia l c ou rt e rr e d in its determination that the School Boar d was justified in dismissi ng her a s a tenure d teac her.

The School B oard f

ound sufficie n t evidenc e to support the cha rg es of insubordination, incompetenc e, and ine fficie ncy , there by justify ing Mr s. Ketche rsid’s termination. I nsubordination,
a s d e fi ne d in Te nn . Co de An n. § 4 9- 5- 50 1( 7) (A ), inc lud e s th e “ [r]e fu sa l . . . to c arry ou t sp eci fi c assig nments m ad e b y

. . . the principa l.” B oth Principal Key lon and Assistant Principal J ackson-7-

testified bef

ore the S ch o o l Board that they specific ally

instructed Mrs. Ke tcher sid, in October of 2001, to r efr ain from placing her hands on any of her students a g ain. Mrs. Ketche rsid testified that it was her unde rstanding of their instructions that she wa s not to touch the student who made the October complaint, but that the direc tive did not ex tend to the other students in the c lass. Howeve r, sh e dida dmi t th a t it made s e ns e that th e y we re ins truc tin g he r n ot t o to uc h a ny of the stu de nts

. When Mr s. Ketche rsid was questioned following the Fe bruary , 2002, complaint, she admitted that
s h e h ad co n t i n u ed t o p l ac e h erh an d s o n t h e s t u d en t s ’ f ac es , ev en as re ce n t l y

as t h at v er y

m o rn i n g.
There is no question that Mrs. Ketche rsid ref used to f o ll o w a spec ific direc tive from Principal Key lon. See Tenn. Code Ann. § 49-5-501( 7)(A)

. We the ref ore ag ree with the trial court’ s finding that “[Mrs.] Ketche rsid’s re fusal to re fra in from striking stude nts [ is] an insubordinate act a s defined by the statute.”

T h e d ef i n i t i o n o f i n co m p et en ce i n cl u d es “e v i d en tu n fi t n es s fo r s er v i ce ” a n d p o s s es s i n g a “condition making teac her unf it to in s t ru ct o r as s ociate w ith children.” Te nn. Code Ann. § 49-5- 501(5). Mrs. Ketche rsid admitted in the hearing befor e the School B oard that she would place her hands on the c hildren’s fa ces in orde r to g et them to pay attention to her:

OK t he smac kin g [the c hil dr e n] are re fe rring to i s w he n I too k h old of the ir fa c e , to dir e c t th e ir a tte nti on to m e , b e c a us e the y wo uld n’ t, they would misbehave a nd not look at me. They wer en’t looking at me, they wer en’t pa y ing attention t o t h e lesson, y ou know they
we re n’t pay ing a tte nti on , s o I too k th e ir

fa c e to l oo k d ir e c tly

a t me and then I think a

couple of times I did go pat, pat, pat, but they wer e like punctuation m arks. I was telli ng the child, I was trying to make them understand that I

mean business. That they had to obey

me.
Direc tor Porter testified that, when Mrs. Ke tcher sid was question ed b y t h e adminis trators on Fe bruary 12, 2002, she complained that her class of students was “ just all bad” and she had “nothing but the bad” s t u d ents . Direc tor Porter e x plained to Mrs. Ke tcher sid that the children we re pla ced in h e r c la ssr oo m ba se d o n th e ir be ing be low g ra de le ve l a ndno t du e to any dis c ipl ine pr ob le ms. Mrs. Ketc hersid, howe ver, c ontinued to refe r to the childre n as bad a nd disrespec tful, telling Dire ctor Porter that she pla ced he r hands on the c hildren’s fa ce s “whe n [she] g ets ang ry and whe n [t he children] are disrespec tful.”

As Mr s. Ke tc he rs id wa s ce rt if ie d to te a c h –

a ndha d ta

ug ht – K- 8 s tud e nts fo r o ve r t e n y e ars , it is shocking to this court that she fe lt it nec essary to g rab the fa ces of her third- g rade students or hit them over their he ads with a book in orde r to g et their attention. Certainly , a teac her w ith that much experienc e should be c apable of controlli n g her a ng er a nd handling her students in a more profe ssional – and safe – manner
. Wit hout que stion, Mrs. Ketcher sid’s tactics amount to “e vident unfitness for se rvice .”-8-

There is also sufficient e vidence , as found by the trial court, to support a fi n d ing of ineffic iency , which is define d to include “wanting in ef fec tive perf

ormanc e of duties.” Tenn. Code Ann. § 49-5-501( 6). Assistant Principal J ackson te stified befor e the School B oard that, when he ha d ob se rv e d M rs . K e tc he rs id’ s c la ssr oo m prior to h e r F e br

ua ry 12 , 2 00 2, su sp e ns ion , h e wa s f or c e d to call down a

child who was misbeha ving because Mrs. Ketche rsid was doing nothing to control the situation. J ackson state d that he had ne ver ha d to call down a c hild before while observing any other
c la ssr oo m. M rs . K e tc he rs id e ve n a dmi tte d at th e hea ri ng that sh e ha d f

a ile d to app ro pria te ly discipline her students and ma ke them beha ve, in spit e of her 24 y ear s of teac hing e x perie nce. Ag ain, we a g ree with the trial court’ s finding that “[Mrs.] Ketche rsid’s nee d to resort to such phy sical tac tics, as well as the inabilityto maintain an orde rly classroom, c on s titutes sufficient evidenc e of ine fficie ncy

and incompete nce.”

Furthermore , there is ample evidenc e that the School B oard c onducted a fair and impartial he ari ng , d ism iss ing the c ha rg e of ne g le c t of

du ty up on fi nd ing that th e e vid e nc e didno t su pp ort it

. I n addition, the School Boa rd, as noted by

the trial court, eng ag ed i n “e x t en s ive discussion and debate as to the appr opriate dispositi on of the case .” I n light of a ll of this evidence, w e find no e rror in the trial court’s determination that the School B oard w as justified in dismis sing Mr s. Ketche rsid.

V.

W h i l e M rs. Ketchersid pre sents only one issue on appe al, the School B oard c onstrues her arg ument as ra ising – or attempting to ra ise – two additional issues, to which the School Boa rd has chosen to re spond. First, t he School B oard a sserts that Mrs. Ke tcher sid “makes a vag ue alleg ation that sever al provisions of the collective barg aining ag ree ment betwee n the [S ]chool [ B]oard a nd the te a c he r’ s a sso c ia tio n w e re vio la te d in th is cas e .” Se c on d, the Sc ho ol B oa rdstate s th a t Mr s. Ke tc he rs id “ arg ue s th at sh e wa s ‘ de mot e d f ro m he r j ob a s K ind e rg arte n T e a c he r at th e Gr a y sv ill e Elementary

School, prior to there being any char g es made ag ainst her . . . .’ ”

With re sp e c t to the fi rs t issu e , our tho ro ug h re vie w o f the re c or d r e ve a ls that a t no tim e did Mrs. Ketc hersid ra ise with the trial court the issue of violat i o n s o f t he collec tive barg aining ag ree ment. I t is well-settled that issues not r aised at the trial court leve l may not be ra ised for the first time on appea l. Sim

pson v. F ronti er C m ty. Credit Union , 810 S.W .2d 147, 153 (Tenn. 1991)

. Ho we ve r, e ve n if

Mr s. Ke tc he rs id h a d r a ise d th is i ssu e be low – an d we do no t be lie ve that sh e did – she has f

ailed to include a

copy of the c ollective bar g aining ag ree ment in the rec ord. Without that document, we are unable to addr ess this purported issue in any event, as t here is no proof in the
re c or d c on c e rn ing it.
As to the second issue, the re is nothing in the re co rd t o i n d icate that Mrs. Ketche rsid ever raised the issue of her “demotion” befor e the trial court; as suc h, she is not permitted to raise it now. See Sim pson , 810 S.W .2d at 153.-9- V I. The judg ment of the chance ry court is aff irmed. This case is remande d for the c ollection of costs assessed be low, pursuant to applica ble law. Costs on appea l are taxed to t he appe llant, L ee Ketche rsid.

_______________________________ CHARLES D. SUSANO, J R., J UDGE