Opinion
No. M2005-00938-COA-R3-CV.
April 4, 2006 Session.
Filed on September 27, 2006.
Appeal from the Chancery Court for Davidson County; No. 95-2144-III; Carol McCoy, Chancellor.
Judgment of the Chancery Court Affirmed.
Paul G. Summers, Attorney General and Reporter; and Brandy M. Gagliano, Assistant Attorney General, for the appellants, Tennessee Board of Regents, Tennessee State University, and James Hefner.
Phillip L. Davidson, Nashville, Tennessee, for the appellee, Alexander C. Wells.
Frank G. Clement, Jr., J., delivered the opinion of the court, in which William B. Cain, J., joined. Patricia J. Cottrell, J., filed a dissenting opinion.
OPINION
Following termination of his employment, a professor at Tennessee State University prevailed in this protracted tenure termination proceeding. On remand to Chancery Court following a successful appeal, the professor filed a Tenn. R. Civ. P. 60.02 motion for relief from the pre-appeal judgment to assert a claim for back pay. The Chancellor granted relief and awarded back pay, which the defendants challenge on two grounds. They contend the court abused its discretion by awarding Rule 60 relief, and because back pay is not specifically authorized by statute, an award of back pay violates the sovereign immunity doctrine. Finding no error, we affirm.
Alexander C. Wells was a tenured professor at Tennessee State University in 1990 when a student filed a complaint accusing him of sexual harassment. Following an internal investigation, the investigating officer at the university determined there was sufficient evidence to find that Professor Wells violated the university's sexual harassment policy. Professor Wells appealed that finding. An administrative law judge conducted a full evidentiary hearing and determined that Professor Wells violated the university's sexual harassment policy. That decision was then submitted to the university president, who upheld the finding.
Thereafter, tenure termination proceedings were initiated. The university's tenure committee ruled that Professor Wells's tenure should be terminated. Professor Wells appealed the decision of the tenure committee to the university president, who approved the committee's decision. Professor Wells then appealed the university's decision to the Tennessee Board of Regents (Board). Chancellor Charles E. Smith conducted a review after which he concurred with the university's decision. Professor Wells appealed the Chancellor's decision to the Board, which denied the appeal. Following the Board's decision, Professor Wells initiated this action by filing a Petition for Review with the Davidson County Chancery Court. The Tennessee Board of Regents, Tennessee State University, and James Hefner, President of the university, were the named defendants. The Chancery Court conducted a hearing following which it reversed the Board's decision to terminate Professor Wells. An order to that effect was entered August 17, 1998. The defendants appealed. Ultimately, the Tennessee Supreme Court affirmed the decision of the Chancery Court, following which the case was remanded.
On remand, Professor Wells filed a Rule 60.02(5) Motion for Relief from the pre-appeal order. The purpose of the motion was to enable him to assert a claim for back pay for the time he was wrongfully terminated. The Chancellor granted the Rule 60 motion and awarded Professor Wells back pay plus prejudgment interest.
The defendants present two issues on appeal. One, they contend the court abused its discretion by granting Professor Wells' motion for Rule 60 relief. Two, they contend the award of back pay, which is not specifically authorized by statute, violates the sovereign immunity doctrine.
TENN. R. CIV. P. 60.02 RELIEF
The function of Tenn. R. Civ. P. 60.02 is "to strike a proper balance between the competing principles of finality and justice." Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976). It is "an escape valve from possible inequity that might otherwise arise from the unrelenting imposition of the principle of finality imbedded in our procedural rules." Thompson v. Firemen's Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990). Tenn. R. Civ. P. 60.02 provides in part:
On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment.
A motion for relief pursuant to Tenn. R. Civ. P. 60.02 addresses itself to the sound discretion of the trial judge. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993). Our scope of review of such a decision is to determine if that discretion was abused. Id.; Day v. Day, 931 S.W.2d 936, 939 (Tenn.Ct.App. 1996).
When we review a trial court's decision under the abuse of discretion standard, we will uphold the trial court's ruling "so long as reasonable minds can disagree as to the propriety of the decision made." Franklin Capital Assocs., L.P. v. Almost Family, Inc., 194 S.W.3d 392, 405 (Tenn.Ct.App. 2005) (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).
Considering the equities of this case, we have concluded reasonable minds could disagree as to the propriety of the Chancellor's decision. Accordingly, we find no error with the Chancellor's exercise of her discretion by avoiding the possible inequity that may have arisen had Professor Wells been procedurally deprived of the opportunity to assert a claim for back pay. Therefore, we affirm the Chancellor's discretionary decision to grant Rule 60.02(5) relief to seek back pay.
SOVEREIGN IMMUNITY
This case comes to us following the determination that Professor Wells was wrongfully terminated as a tenured professor at Tennessee State University, for which he was awarded back pay, benefits, and prejudgment interest for the period of time he was wrongfully terminated. The defendants contend the award violates the sovereign immunity doctrine.
The relevant statute, Tenn. Code Ann. § 49-8-304, does not expressly provide for the award of back pay in the event a university faculty member who had been awarded tenure is "vindicated or reinstated" following a review of the professor's dismissal or suspension for cause. In pertinent part the statute provides, "a faculty member who has been awarded tenure, and who has been dismissed or suspended for cause, may obtain de novo judicial review of the final decision. . . ." Tenn. Code Ann. § 49-8-304(a).
The sovereign immunity doctrine provides that the state, as a sovereign entity, is immune from suit except to the extent that it consents to be sued. Brown v. State, 783 S.W.2d 567, 571 (Tenn.Ct.App. 1989) (citing Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777 (1965)). The right to file a cause of action against the state originates from the Constitution of Tennessee, which states "[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct." Tenn. Const. art. I, § 17. "A statute permitting suit against the State must be strictly construed, and jurisdiction cannot be enlarged by implication." Brown, 783 S.W.2d at 571 (citing Stokes v. Univ. of Tenn., 737 S.W.2d 545 (Tenn.Ct.App. 1987)).
The statute at issue does not expressly provide a remedy for back pay and benefits; thus, it would appear that Professor Wells' claim for back pay and benefits is barred by the sovereign immunity doctrine. That argument fails, however, in light of the Supreme Court's holding in State ex rel. Chapdelaine v. Torrence, 532 S.W.2d 542, 550 (Tenn. 1976). In Chapdelaine, the Supreme Court was faced with the same argument presented here, that an award of back pay to this professor violated principles of sovereign immunity. The Chancellor awarded the tenured professor the sum of $12,500 for back pay, which the Supreme Court found proper. As the Court explained,
While the Chancellor treated this as "damages", we think that is an unfortunate characterization. The word "damages" connotes a recovery for hurt, harm or injury inflicted upon an injured party. We are not dealing here with damages in the conventional sense of the word. The award was simply an enforced restitution of unpaid wages to the extent they were not mitigated. In common parlance this was an award for back pay.
Chapdelaine, 532 S.W.2d at 550. The Court went on to defuse the sovereign immunity defense, explaining:
We are not impressed with the insistence that this action against these defendants, as state officials engaged in the pursuit of their official duties, is a suit against the state and, therefore, is barred by sovereign immunity.
Article 1, Section 17 of the Constitution of Tennessee provides in pertinent part: Suits may be brought against the State in such manner and in such courts as the Legislature may be law direct. (emphasis in original)
Section 49-1417 T.C.A. gives the Chancery Court jurisdiction of actions brought by tenured teachers to review their dismissal.
Cities and counties are arms of the state and such immunity as they claim is wholly derivative from the state itself, and this Court has consistently approved awards of back pay as to teachers in city and county school systems. See e.g., Jeffers v. Stanley, supra; Wagner v. Elizabethton City Board of Education, 496 S.W.2d 468 (Tenn. 1973).Chapdelaine, 532 S.W.2d at 550. Upon the filing of a Petition to Rehear by the state, the Supreme Court reaffirmed its holding concerning the sovereign immunity defense, explaining:
The State's petition insists that we failed to consider § 20-1702 T.C.A. relating to the sovereign immunity of the State. Section VII of the main opinion discusses this issue. We reiterate that "we are not impressed with the insistence (that this) is a suit against the State and, therefore, is barred by sovereign immunity."
The college and university teachers' tenure law, as incorporated in § 49-1421 T.C.A., and the regulations promulgated pursuant thereto, would be "as sounding brass, or a tinkling cymbal", if it did not carry with it the coordinate right of a tenured teacher to seek back pay in wrongful dismissal cases.
Chapdelaine, 532 S.W.2d at 551.
The defendants have correctly noted that the statute at issue in Chapdelaine was repealed in 1976. Ordinarily, that would be significant. We note, however, the statute was repealed only to be revived as part of a broader statutory scheme. That scheme pertained to the implementation of a State University and Community College System, with the governance, management and control of the state universities and community colleges vested in one of the defendants, the Board of Regents. Tenn. Code Ann. § 49-8-101, et. seq. The caption of Senate Bill No. 2101, the 1976 legislation repealing the Chapdelaine statute, explained it was
AN ACT to repeal Tennessee Code Annotated, Sections 49-1421 and 49-1422; to authorize the Board of Regents to promulgate a tenure policy for faculty at institutions withing the State University and Community College System of Tennessee; to authorize the Board to define the nature of tenure and rights and responsibilities thereunder; . . . to authorize the Board to provide for adequate cause for termination of faculty with tenure, and the procedures for such termination 'and to provide for judicial review. (emphasis added)
1976 Tenn. Pub. Acts 1275.
As we know from reading Chapdelaine, the former statute authorized and required the state board of education B the predecessor to the Board of Regents B to establish a system of tenure for college and university teachers and promulgate rules and regulations for a tenure system. Furthermore, that statute provided that the teacher " shall be entitled to a judicial review of the action of the board for the same purposes and in the same manner provided by § 49-1417." Chapdelaine, 532 S.W.2d at 545. (emphasis added) The new statutory scheme provided that a faculty member who had been awarded tenure, and who was dismissed for cause, may obtain similar relief to that available in the old statute, that being de novo judicial review by filing a petition in chancery court. The statute in effect today is also substantially similar. It reads:
A faculty member who has been awarded tenure, and who has been dismissed or suspended for cause, may obtain de novo judicial review of the final decision by filing a petition in a chancery court. . . .
Tenn. Code Ann. § 49-8-304(a).
The defendants also point to Tenn. Code Ann. § 49-5-511, which applies to teachers in the elementary and secondary schools, and specifically provides for the award of back pay in the event that a teacher is "vindicated or reinstated" as a result of an investigation into the suspension of the teacher by the director of schools. Tenn. Code Ann. § 49-5-511(a)(3). They contend Tenn. Code Ann. § 49-5-511 shows a legislative intent contrary to the holding in Chapdelaine. We are unpersuaded by the argument for two reasons. One, the statute does not pertain to college and university professors. Two, we view the defendants suggestion as at best faint evidence of legislative intent and are certain the General Assembly would have been more direct. It has had thirty years to express a contrary intent, and we find it has declined to do so.
The Chapdelaine court awarded the tenured professor back pay when faced with a substantially similar statute as presented here. We find no uncertainty in the Supreme Court's holding in Chapdelaine, and we are obliged to follow the lead of the Tennessee Supreme Court.
The judgment of the trial court is affirmed, and this matter is remanded with costs of appeal assessed against the defendants.
It is elementary that a statute waiving sovereign immunity must clearly do so, and any statute purporting to waive that immunity must be strictly construed. Courts are to determine to what extent and in what ways the Legislature has allowed suits against the State. The statute allowing the suit herein, Tenn. Code Ann. § 49-8-304, authorizes de novo judicial review of the termination or suspension of tenured state university professors. The statute does not mention or refer to backpay or the award of damages. This court cannot imply such a remedy or interpret the statute so as to enlarge the waiver of sovereign immunity beyond that intended by the legislature.
Mr. Wells bases his entitlement to backpay on Chapdelaine. The discussion in Chapdelaine of the award of backpay in light of the sovereign immunity of the State is very limited. It appears, however, that the Court found a waiver of immunity in Tenn. Code Ann. § 49-1417 as it existed at that time. This reliance is explained by language in then-existing Tenn. Code Ann. § 49-1421, quoted in the Chapdelaine opinion, that stated that tenured college and university teachers were entitled to judicial review of board decisions "for the same purposes and in the same manner provided by § 49-1417." See also Eads v. Humphries, 562 S.W.2d 805, 806 (quoting the statute).
At that time, Tennessee Code Annotated § 49-1417 was part of the statutory scheme applicable to tenured teachers in local school systems. Thus, at the time of the employment action at issue in Chapdelaine, tenured teachers at colleges governed by the State Board of Education were entitled to a judicial review co-extensive in scope and remedy with that available to tenured teachers in local elementary and secondary schools. The Chapdelaine court, finding that Tenn. Code Ann. § 49-1417 provided jurisdiction of actions brought by tenured teachers to review their dismissal, noted that the Court had "consistently approved awards of back pay as to teachers in the city and county school systems." Chadelaine, 532 S.W.2d at 550.
In 1976, however, the General Assembly severed the connection between actions regarding tenured college and university professors in Board of Regents schools from those regarding elementary and secondary teachers in local school systems. 1976 Tenn. Pub. Acts, ch. 839. That legislation is now codified at Tenn. Code Ann. § 49-8-301, et seq. (dealing with tenure for faculty at institutions within the state university and community college system, governed by the State Board of Regents). Thus, the basis for the Chapdelaine court's reliance on authority governing public school teachers in local systems no longer exists.
The current Board of Regents statutes provide for de novo judicial review of the dismissal or suspension of a tenured faculty member. Tenn. Code Ann. § 49-8-304. Thus, the court's review is limited to the propriety of the Board's decision to dismiss or suspend the tenured professor. Nothing in that statute, or the statute regarding the Board's adoption of policies for "the termination of faculty with tenure," Tenn. Code Ann. § 49-8-301(a)(3), or the statutes regarding procedures for and review of such actions, Tenn. Code Ann. § 49-8-302 through -304, authorizes the payment or award of backpay. An action for judicial review of the Board's decision does not include the remedies available in a 42 U.S.C. § 1983 action or one brought under various state and federal statutes prohibiting employment discrimination.
There is certainly an argument that the Chapdelaine court did not rely exclusively on Tenn-Code Ann. § 49-1417. The opinion includes language indicating that judicial review of a termination decision would be less than satisfactory or effective if backpay were not available. Of course, a decision that the Board's termination decision must be overturned brings other concrete relief. In any event, the doctrine of sovereign immunity precludes full monetary relief against the State in many situations. Exceptions to that doctrine must be explicit and have not generally been based on concepts of equity or implication.
While I understand the majority's adherence to Chapdelaine, I would interpret that opinion as relying primarily on a statutory scheme that has been changed, effectively eliminating the basis for the backpay ruling. It appears to me that the proper interpretation of Chapdelaine and the availability of an award of backpay against the State under a statute that is silent as to that remedy are issues that need to be addressed by the Tennessee Supreme Court.