Melanie Lemon v. Williamson County Schools

09/23/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 5, 2019 Session

MELANIE LEMON v. WILLIAMSON COUNTY SCHOOLS ET AL.

Appeal from the Circuit Court for Williamson County

No. 2017-320 Joseph A. Woodruff, Judge

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No. M2018-01878-COA-R3-CV

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The plaintiff, a former tenured schoolteacher, sued the Williamson County Board of

Education and three administrators alleging that she was forced to resign after the

defendants “bullied, stalked, intimidated, and defamed” her during the 2015–2016 school

year. She asserted claims for wrongful termination, breach of contract, negligence,

intentional infliction of emotional distress, and negligent infliction of emotional distress.

The trial court dismissed all of the claims asserted in the original complaint pursuant to

Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief could be granted

but permitted the plaintiff to file an amended complaint to revise and restate her claims

for breach of contract and intentional infliction of emotional distress. Following

discovery, the court summarily dismissed the two remaining claims as asserted in the

amended complaint. On appeal, the plaintiff challenges the Tenn. R. Civ. P. 12.02(6)

dismissal of her wrongful termination and negligence claims, and the summary dismissal

of her claims for breach of contract and intentional infliction of emotional distress. We

affirm the trial court’s determination the plaintiff’s negligence and intentional infliction

of emotional distress claims are barred by the Governmental Tort Liability Act and

Teachers’ Tenure Act, respectively. We have also determined that the plaintiff failed to

produce evidence of a compensable injury in her claim for breach of contract. As for the

plaintiff’s claim of wrongful termination, we respectfully disagree with the trial court’s

determination that the doctrine of constructive discharge is inapplicable to wrongful

termination claims under the Teachers’ Tenure Act. Therefore, we reverse the dismissal

of the plaintiff’s wrongful termination claim and remand this claim for further

proceedings. We affirm the trial court in all other respects.

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

Part, Reversed in Part and Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and RICHARD H. DINKINS, JJ., joined.

Constance F. Mann, Franklin, Tennessee, for the appellant, Melanie Lemon.

Elisabeth M. Carson, Franklin, Tennessee, for the appellees, Kathryn Donnelley, Denise

Goodwin, Mike Looney, and Williamson County Government.

OPINION

Melanie Lemon (“Plaintiff”) was a tenured, second-grade teacher at Walnut Grove

Elementary School in Williamson County, Tennessee at all times material to this action.

On June 9, 2017, Plaintiff filed a complaint against the Williamson County Board of

Education, Williamson County Superintendent Mike Looney, Assistant Superintendent

Denise Goodwin, and Walnut Grove Principal Dr. Kathryn Donnelly (collectively,

“Defendants”). As is relevant to the issues on appeal, the Complaint asserted a claim

against Dr. Looney, Ms. Goodwin, and Principal Donnelly (collectively, “the Individual

Defendants”) for intentional infliction of emotional distress, and claims against the

Williamson County Board of Education (“the Board”) for wrongful termination under the

Teachers’ Tenure Act, breach of contract, negligence, and negligent infliction of

emotional distress.

On October 12, 2017, the trial court found that the Complaint failed to state claims

for wrongful termination, negligence, and negligent infliction of emotional distress.1

Although the trial court found Plaintiff’s original claim for breach of contract alleged

sufficient facts to make a prima facie case, the court found it failed to state a claim for

which relief could be granted because the employment contract at issue was not attached

to the Complaint as required by Tenn. R. Civ. P. 10.03. Similarly, the court found

Plaintiff alleged sufficient facts to state a claim for “outrageous” conduct to support her

IIED claim, but it also found Plaintiff failed to attribute the alleged conduct to particular

defendants. Therefore, the court dismissed both claims without prejudice and granted

Plaintiff leave to amend the complaint to revise and restate these two claims. Plaintiff

filed an amended complaint on December 6, 2017, and Defendants filed timely answers.

On June 4, 2018, Defendants filed motions for summary judgment on the two

remaining claims, breach of contract and IIED. The trial court granted the motions on

September 25, 2018. This appeal followed.

1

The trial court also dismissed claims for invasion of civil rights, defamation, and false light

invasion of privacy, but the dismissal of those claims is not at issue in this appeal.

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On appeal, Plaintiff challenges the dismissal of five of her claims: (1) wrongful

termination, (2) negligence, (3) negligent infliction of emotional distress, (4) breach of

contract, and (5) intentional infliction of emotional distress. Because our review of each

decision requires the application of different standards of review, we will address them

separately.

STANDARDS OF REVIEW

A Tenn. R. Civ. P. 12.02(6) motion to dismiss “challenges only the legal

sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence.” Webb

v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011).

Resolving a Rule 12.02(6) motion to dismiss requires examination of the pleadings alone.

Id. “A defendant who files a motion to dismiss ‘admits the truth of all of the relevant and

material allegations contained in the complaint, but . . . asserts that the allegations fail to

establish a cause of action.’” Id. (quoting Brown v. Tenn. Title Loans, Inc., 328 S.W.3d

850, 854 (Tenn. 2010)).

When considering a motion to dismiss, courts “must construe the complaint

liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of

all reasonable inferences.” Id. (quoting Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31–32

(Tenn. 2007)). “A trial court should grant a motion to dismiss ‘only when it appears that

the plaintiff can prove no set of facts in support of the claim that would entitle the

plaintiff to relief.’” Id. (quoting Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857

(Tenn. 2002)). We review the trial court’s legal conclusions regarding the adequacy of

the complaint de novo. Id.

This court reviews a trial court’s decision on a motion for summary judgment de

novo, without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, we must make a fresh

determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.;

Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn. 1997). In so doing, we consider the evidence

in the light most favorable to the nonmoving party and draw all reasonable inferences in

that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

Summary judgment should be granted when “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for

summary judgment does not bear the burden of proof at trial, it may satisfy its burden of

production “either (1) by affirmatively negating an essential element of the nonmoving

party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the

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summary judgment stage is insufficient to establish the nonmoving party’s claim or

defense.” Rye, 477 S.W.3d at 264 (emphasis in original).

When a motion for summary judgment is made and supported as provided in

Tenn. R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its

pleadings. Id. at 265. Instead, the nonmoving party must respond with specific facts

showing there is a genuine issue for trial. Id. A fact is material “if it must be decided in

order to resolve the substantive claim or defense at which the motion is directed.” Byrd v.

Hall, 847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury

could legitimately resolve that fact in favor of one side or the other.” Id.

ANALYSIS

I. CLAIMS DISMISSED PURSUANT TO TENN. R. CIV. P. 12.02(6)

The Complaint asserted that Plaintiff “became the target of a plan to coerce her

resignation” during the 2016–2017 school year, when she “was continually stalked,

bullied, and harassed through meetings, e-mails, and directives.” The trial court

accurately summarized the alleged conduct as

disciplining and interfering with [Plaintiff’s] charity attempt for a co-

worker that took place outside of school; providing her with a false and

inaccurate work review for the purpose of forcing a resignation; accusing

her of child abuse for the purpose of forcing a resignation; placing cameras

in her classroom for the purpose of intim[idating] and forcing a resignation;

forcing a human monitor in her class room for the purpose of harassing and

intimidating her; threatening the community and/or co-workers for

speaking on her behalf; threatening the community that she would not work

in the State of Tennessee if they testified on her behalf; telling the

community that she has anger issues; telling the community that she is a

child abuse[r] with no complaint from the child, or his/her family; and

threatening co-workers and other teachers in Williamson County that if

they stood up for Ms. Lemon or tried to protest, “remember who signs your

paychecks.”

The Complaint alleged that Plaintiff was suspended without pay for three days

because of the child abuse allegation, and the Board failed to follow the required time

frames and provide her with the required documents when she attempted to appeal the

decision. It also alleged that Plaintiff resigned on May 12, 2017, because she could no

longer endure her working conditions.

Plaintiff asserted that Defendants’ conduct made her working conditions “so

difficult or unpleasant that a reasonable person in her shoes would have felt compelled to

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resign.” She claimed this “constructive” discharge was a breach of contract, constituted

wrongful termination under the Tennessee’s Teachers’ Tenure Act, and constituted

“outrageous” conduct for purposes of her IIED claim. The trial court found the

allegations were sufficient to constitute outrageous conduct and to support a breach of

contract claim; however, the court dismissed Plaintiff’s wrongful termination claim upon

finding that her resignation disqualified her from the Tenure Act’s protections:

[I]n the present matter, [Plaintiff] was neither dismissed nor discharged

from her position as a second grade teacher at Walnut Grove Elementary

School; but rather, as she admits, [Plaintiff] resigned before these actions

could occur. . . . Upon resignation, Ms. Lemon’s status as a tenured teacher

was terminated, thus removing her from the procedural protections

provided by the Teacher Tenure Act for tenured teachers who have been

improperly dismissed. Tenn. Code Ann. § 49-5-501 (11)(B)(i).

Consequently, it cannot be said that Ms. Lemon was wrongfully discharged

in violation of the Teacher Tenure Act.

Nevertheless, the Court acknowledges, under certain circumstances, some

resignations may be coerced, thus enabling a court to grant a plaintiff relief

for an involuntary resignation; however, the Court’s legal research has not

discovered, and Ms. Lemon has not cited, controlling law demonstrating

the applicability of the doctrine of constructive discharge to the present

factual circumstances.

(footnote omitted).

The court also dismissed Plaintiff’s negligence and negligent infliction of

emotional distress claims after finding Plaintiff failed to allege facts that would remove

the Board’s immunity under the Governmental Tort Liability Act (“GTLA”):

[T]he GLTA removes governmental immunity for injuries caused by the

negligence of governmental employees. Tenn. Code Ann. § 29-20-205.

. . . . However, Ms. Lemon’s Complaint does not state a claim for

negligence on behalf of the employees of [the Board] (i.e., the Individual

Defendants). Regardless of the fact that Count 3 is captioned “Negligence

of County Employees,” the averments contained therein do not assert a

claim for negligence against the Individual Defendants. Count 3 simply

alleges negligence on behalf of the governmental entity, WCS, in allowing

the Individual Defendants to behave in the alleged manner . . . . [T]he

Complaint only seeks to impose liability on WCS for the alleged intentional

acts of its employees (i.e., allowing the Individual Defendants to harass,

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bully, stalk, or intimidate Ms. Lemon into resignation). Thus, [the Board’s]

governmental immunity has not been removed[.]

On appeal, Plaintiff contends the trial court erred in dismissing her claim for

wrongful termination because the doctrine of constructive discharge is a well-established

proxy for the termination element in any wrongful termination claim. Plaintiff argues on

appeal that the constructive discharge violated both her rights under the Tenure Act and

her rights under her employment contract with the Board. Plaintiff also asserts that the

court erred in finding the GTLA barred her negligence claims because her Complaint

alleged that the child abuse investigation was “incomplete, improper, and without merit.”

As an initial matter, we find Plaintiff waived any argument concerning breach of

contract by constructive termination. Although Plaintiff pleaded constructive termination

in support of her claims for wrongful termination and breach of contract, she omitted all

reference to constructive termination in her amended complaint. The trial court

subsequently dismissed the contract claim on summary judgment—which we address in

section II, infra. By operation of law, Plaintiff’s amended contract claim constituted a

voluntary abandonment of the pleadings in the original contract claim. See Christian v.

Lapidus, 833 S.W.2d 71, 73 (Tenn. 1992) (“[A]n amended complaint supersedes the

original complaint, rendering the original of no legal effect, unless the amended

complaint specifically refers to or adopts the original.”); Baker v. Louisville & N.

Terminal Co., 61 S.W. 1029, 1031 (Tenn. 1901) (holding that plaintiff could not base

appeal on a ground alleged in the original complaint but omitted from amended

complaint).

This principle, however, does not prevent Plaintiff from objecting to the dismissal

of her wrongful termination claim based on constructive discharge. Plaintiff filed the

amended complaint in response to the trial court’s order, which did not grant leave to

amend the wrongful termination claim. Although Tennessee’s decisional law has not

addressed the effect of an amended complaint on claims that were dismissed without

permission to amend, federal courts “‘refuse to require a plaintiff to replead dismissed

claims in order to preserve the right to appeal the dismissal,’ particularly because an

attempt to reallege the claim would likely be futile.” Hayward v. Cleveland Clinic

Found., 759 F.3d 601, 617 (6th Cir. 2014) (quoting Young v. City of Mount Ranier, 238

F.3d 567, 572 (4th Cir. 2001)). “Federal case law interpreting rules similar to our own are

persuasive authority for purposes of construing the Tennessee rule.” Harris v. Chern, 33

S.W.3d 741, 745 n.2 (Tenn. 2000). We find this exception to the waiver rule is well

reasoned. Thus, we will consider Plaintiff’s allegation of constructive discharge only in

relation to her wrongful termination claim under the Tenure Act.

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A. Wrongful Termination

Broadly speaking, a claim for “wrongful discharge” is any claim that an employee

was terminated in violation of a statutory or contractual standard. See Andrews v.

Louisville & Nashville R.R. Co., 406 U.S. 320, 324 (1972) (“[T]he very concept of

‘wrongful discharge’ implies some sort of statutory or contractual standard that modifies

the traditional common-law rule that a contract of employment is terminable by either

party at will.”). Wrongful discharge claims often appear in employment discrimination

and retaliatory discharge actions. See, e.g., Teter v. Republic Parking Sys., Inc.,

181 S.W.3d 330, 339 n.1 (Tenn. 2005) (describing employee discrimination and

retaliatory discharge claims as “wrongful termination cases which implicate major public

policy concerns”). However, such claims are not limited to circumstances of

discrimination or retaliation. Instead, an employee “may bring a claim for wrongful

discharge under any statute that provides such a claim or under the common law of the

state.” Frye v. St. Thomas Health Servs., 227 S.W.3d 595, 613 (Tenn. Ct. App. 2007)

(citing Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 443–44 (Tenn. 1984)). Under the

common law of Tennessee, a discharge is “wrongful” when it “violates ‘a clear public

policy which is evidenced by an unambiguous constitutional, statutory, or regulatory

provision.’” Id. at 613–14 (quoting Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717

(Tenn. 1997)).

The purpose of the Tenure Act is, inter alia, “to provide teachers stability in

employment, to enshrine merit as the basis for that stability and to protect teachers from

being fired due to malice or political differences.” Kelley v. Shelby Cty. Bd. of Educ.,

198 F. Supp. 3d 842, 852 (W.D. Tenn. 2016) (citing State v. Yoakum, 297 S.W.2d 635,

638 (Tenn. 1956)). By passing the Tenure Act, “[t]he General Assembly recognized that

the efficient administration of the local educational systems of this State requires stability

of programs and trained personnel.” Ryan v. Anderson, 481 S.W.2d 371, 374 (Tenn.

1972).2 In short, “[t]enure is the public policy of the State of Tennessee” and “any

2

In McSherry v. City of St. Paul, the Minnesota Supreme Court reviewed the history of teacher

tenure legislation in the United States:

The bases for [the first state tenure law] were that better talent would be attracted to the

teaching profession; that annual contracts theretofore in vogue had not resulted in the

elimination of poor, incompetent, and inefficient teachers; that the principle of annual

election or appointment was not generally applied to policemen, firemen, or judicial

officers, and in the very nature of things should not apply to teachers; that not

infrequently the best teachers were discharged for inadequate reasons. . . . The objectives

sought have been to protect the teachers against unjust removal after having undergone

an adequate probationary period; that the movement itself has for its basis public interest,

(continued . . .)

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decision to remove a tenured teacher necessarily implicates these public policy goals.”

Kelley, 198 F. Supp. 3d at 852.

Our courts have recognized illegal or wrongful discharge claims alleging a

violation of various state and local tenure acts. See, e.g., Wells v. Tennessee Bd. of

Regents, 231 S.W.3d 912, 915–16 (Tenn. 2007) (wrongful discharge under university

teachers’ tenure law); Haig v. Hoffmeister, No. C.A. 1197, 1989 WL 12285, at *4–5

(Tenn. Ct. App. Feb. 15, 1989) (wrongful discharge under local tenure act). As is relevant

here, educators have succeeded on claims for wrongful discharge when they were fired

without just cause, notice, or a hearing. See McGhee v. Miller, 753 S.W.2d 354, 356

(Tenn. 1988) (finding teacher was wrongfully terminated when the evidence did not

establish just cause); Gibson v. Butler, 484 S.W.2d 356, 358–59 (Tenn. 1972) (affirming

finding that discharge of teachers was wrongful when they were not provided with notice

or a hearing); City of Knoxville v. State ex rel. Hayward, 133 S.W.2d 465, 469 (Tenn.

1939) (finding teacher’s termination because of her marriage was unauthorized, illegal,

and void); cf. Snell v. Bros., 527 S.W.2d 114, 119 (Tenn. 1975) (affirming award of

damages for violation of non-tenured teacher’s statutory employment rights); Kelley v.

Shelby Cty. Bd. of Educ., 751 F. App’x 650, 655–56 (6th Cir. 2018) (finding that teachers

were entitled to damages when the termination process violated the Tenure Act).

Here, the Complaint alleged that the Board terminated Plaintiff in violation of the

Tenure Act because there was no just cause for her termination and she was provided

with no notice or hearing. As the above authority indicates, this allegation alone would

state a prima facie case for wrongful termination; however, what makes this case unique

is that Plaintiff alleged that the Board constructively terminated her. The trial court

correctly noted that there is no controlling law concerning the doctrine of constructive

discharge in a wrongful termination claim based on an alleged violation of the Tenure

Act’s provisions. Nonetheless, we find Plaintiff provided sufficient persuasive authority

to prevent us from foreclosing the possibility that a constructive discharge could violate

the Tenure Act.

As Plaintiff argued before the trial court and on appeal, “constructive discharge

recognizes that some resignations are coerced and that employers should not be permitted

to escape liability [for wrongful discharge] simply because they forced an employee to

resign.” Frye, 227 S.W.3d at 611–12 (quoting Walker v. City of Cookeville, No. M2002-

in that most advantages go to the youth of the land and to the schools themselves, rather

than the interest of the teachers as such.

277 N.W. 541, 543–44 (Minn. 1938).

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01441-COA-R3-CV, 2003 WL 21918625, at *7 (Tenn. Ct. App. Aug. 12, 2003)). Like

express termination, a constructive discharge is wrongful when it constitutes “a breach of

an express or implied contract of employment” or a “violation of fundamental public

policy.” Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1030 (Cal. 1994) (citations

omitted). Thus, in Tennessee, the doctrine of constructive discharge has been recognized

in employment discrimination claims, see, e.g., Campbell v. Fla. Steel Corp., 919 S.W.2d

26, 33–34 (Tenn. 1996); retaliation claims, see, e.g., Crews, 78 S.W.3d at 865; and

breach of contract claims, see, e.g., Guiliano v. Cleo, Inc., 995 S.W.2d 88, 94 (Tenn.

1999).

In her opposition to Defendants’ Motion for Summary Judgment and on appeal,

Plaintiff cited to State ex rel. McGhee v. St. John, 837 S.W.2d 596 (Tenn. 1992) as a case

where the Tennessee Supreme Court recognized the “constructive discharge” of a public

school teacher. While the facts and controlling law in McGhee differ from the present

case, we find the Court’s reasoning in McGhee persuasive. The plaintiff in McGhee was a

high school teacher who had been harassed, intimidated, and ultimately dismissed

without just cause after she refused to inflate the grades of the high school’s star athlete.

See McGhee v. Miller, 753 S.W.2d 354, 354–55 (Tenn. 1988). Although the Court

ordered the county school board to reinstate the teacher to her previous position, id.

at 356, the board attempted to assign her to an elementary school when she returned from

leave, State ex rel. McGhee, 837 S.W.2d at 598. The plaintiff refused the assignment and

brought a claim for breach of contract and violation of the State Leave Act, Tenn. Code

Ann. § 49-5-705. Id. at 599. On appeal, the Court found the assignment constituted a

constructive discharge, id. at 602, reasoning that if the teacher were denied her statutory

rights, she would “finally be eliminated altogether from the . . . school system, which is

exactly the result intended by those who originally clamored for her discharge,” id.

at 601.

The Board asserts that constructive discharge is applicable only in circumstances

of federal labor disputes and retaliatory discharge. It argues that “the Tenure Act does not

contemplate” application of the doctrine of constructive discharge and its provisions

“cannot be overridden by [Plaintiff’s] attempt to transplant an analytical framework from

a wholly distinct area of law.” Moreover, the Board contends that McGhee does not

support a “new cause of action for ‘constructive discharge’ in the context of the Tenure

Act.” Respectfully, we find these arguments miss the gravamen of the constructive

discharge doctrine, which is simply a legal fiction that prevents an employer from

achieving a desired result without complying with its statutory or contractual obligations.

A board of education cannot violate the fundamental policies of the Tenure Act by

coercing a resignation any more than it can violate the fundamental policies of any other

statute by coercing a resignation.

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Even if an allegation of constructive discharge is permissible under the Tenure

Act, the Board argues that Plaintiff failed to allege facts to support a finding that her

working conditions were so severe, pervasive, and intolerable that a reasonable person

would resign; and it is entitled to immunity under the GTLA. Although the Board raised

these grounds in its Motion for Summary Judgment, the trial court did not address them.

Nonetheless, the trial court found that, taking the Complaint’s allegations as true,

Plaintiff sufficiently pleaded “outrageous conduct” to support her IIED claim.

“Outrageous conduct” is conduct “so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Miller v. Willbanks, 8 S.W.3d 607, 614

(Tenn. 1999) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). Considering

that Plaintiff’s intentional infliction of emotional distress claim is predicated on the same

conduct as her wrongful discharge claim, we find Plaintiff sufficiently pleaded working

conditions “so intolerable that a reasonable person subject to them would resign.” See

Campbell, 919 S.W.2d at 34.

As we noted earlier, when considering a motion to dismiss, “courts ‘must construe

the complaint liberally, presuming all factual allegations to be true and giving the

plaintiff the benefit of all reasonable inferences.’” Webb, 346 S.W.3d at 427 (quoting

Tigg, 232 S.W.3d at 31–32)). Additionally, courts “should grant a motion to dismiss

‘only when it appears that the plaintiff can prove no set of facts in support of the claim

that would entitle the plaintiff to relief.’” Id. (quoting Crews, 78 S.W.3d at 857). Thus,

we conclude the Complaint stated a claim of constructive discharge for which relief could

be granted.

We also respectfully disagree that the GTLA applies, because Plaintiff’s claim is

based on an alleged violation of a statute that expressly prohibits termination without just

cause, notice, and a hearing. See Vaughn v. City of Tullahoma, No. M2015-02441-COA-

R3-CV, 2017 WL 3149602, at *3 (Tenn. Ct. App. July 21, 2017) (concluding another

statute’s specific provisions controlled over the GTLA’s general provisions). To hold

otherwise would cloak a school board in immunity anytime it violated the Tenure Act’s

provisions.

Accordingly, we reverse the dismissal of the plaintiff’s wrongful termination

claim and remand this claim for further proceedings.3

3

In finding that Plaintiff stated a claim of wrongful, constructive discharge, we do not comment

on the merits of the claim. We simply find that dismissal at the pleading stage was unwarranted.

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B. Negligence and Negligent Infliction of Emotional Distress

Although the trial court did not address the application of the GTLA to Plaintiff’s

wrongful discharge claim, it determined the GTLA barred her claims for negligence and

negligent infliction of emotional distress. We agree.

When a plaintiff attempts to hold a governmental entity liable for the intentional

acts of its employees, as Plaintiff does here, a direct showing of negligence by the

governmental entity is required. Hughes v. Metro. Gov’t of Nashville & Davidson Cty.,

340 S.W.3d 352, 368 (Tenn. 2011). In other words, a governmental entity cannot be held

liable for an intentional tort “absent proof of its negligent supervision.” Id. at 355. To

state a claim for negligent supervision, a complaint must allege that the defendant had

notice of the wrongdoer’s propensity to harm, authority to prevent the harm, and a duty

of care to those who were harmed. See Redwing v. Catholic Bishop for Diocese of

Memphis, 363 S.W.3d 436, 454 (Tenn. 2012) (quoting Ira C. Lupu & Robert W. Tuttle,

Sexual Misconduct and Ecclesiastical Immunity, 2004 BYU L. Rev. 1789, 1856 n.266

(2004)).

While Plaintiff’s negligence claims asserted that the Board breached its duty to

“control, direct, and train their employees,” i.e., the Individual Defendants, it failed to

allege facts that would show the Board had notice of the intentional conduct that harmed

Plaintiff. Without notice of the Individual Defendants’ conduct, the risk of harm to

Plaintiff was not foreseeable. See King v. Anderson Cty., 419 S.W.3d 232, 248 (Tenn.

2013) (“A risk is foreseeable if a reasonable person could foresee the probability of its

occurrence or if the person was on notice that the likelihood of danger to the party to

whom is owed a duty is probable.” (quoting Downs ex rel. Downs v. Bush, 263 S.W.3d

812, 820 (Tenn. 2008))).

Although Plaintiff alleged that she complained about Principal Donnelly’s

behavior to Assistant Superintendent Goodwin, she also alleged that Ms. Goodwin

intentionally participated in the conduct that injured her. The Board cannot be held liable

for Ms. Goodwin’s negligent supervision of her own intentional conduct. See Bundy v.

Madison Cty., Tenn., No. 14-1337, 2015 WL 1957094, at *3–4 (W.D. Tenn. Apr. 29,

2015) (finding county was immune under the GTLA when the complaint alleged

simultaneously that the county’s sheriff negligently supervised its employees and

participated in the intentional acts that lead to plaintiff’s constructive discharge).

Based on the foregoing, we affirm the trial court’s decision to dismiss Plaintiff’s

claims for negligence and negligent infliction of emotional distress.

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II. CLAIMS DISMISSED ON SUMMARY JUDGMENT

The two claims that were revised and reasserted in the Amended Complaint, one

for intentional infliction of emotional distress and the other for breach of contract, were

dismissed on summary judgment following substantial discovery.

In support of their motion for summary judgment Defendants submitted a Joint

Statement of Undisputed Material Facts that included 248 “material undisputed facts.” In

response, Plaintiff filed a statement of additional material facts, which included 524

“material undisputed facts.” As a result, the “undisputed material facts” submitted by the

parties comprised over 400 pages. Having reviewed the record, we have determined that

the vast majority of the undisputed and disputed facts relied upon by the parties are not

material or constitute legal conclusions, and only a modest number of the facts relied on

by the parties are material for the purpose of summary judgment as it pertains to these

two claims.

The facts that are most relevant to the claims of breach of contract and intentional

infliction of emotional distress are generally stated and summarized as follows. At a

Back-to-School night on August 24, 2016, Plaintiff met with the mother of a student

whose behavior had been particularly challenging (“Mom One”).4 During the meeting,

Mom One became upset because she felt like Plaintiff was suggesting that something was

wrong with her son. Plaintiff asked Principal Donnelly to join the meeting and, according

to Plaintiff, Principal Donnelly immediately blamed Plaintiff for upsetting Mom One.

The next day, Plaintiff met with Principal Donnelly to discuss how Principal Donnelly

had allegedly disrespected her. Later that morning, Plaintiff and Principal Donnelly met

again, this time with Assistant Principal Gaidos in attendance. That meeting focused on

how Principal Donnelly and Ms. Gaidos could provide Plaintiff with more support in her

classroom.

Plaintiff testified that Principal Donnelly treated her differently from other

teachers after the Back-to-School night by closely scrutinizing and directing Plaintiff’s

classroom management through frequent e-mails, conversations, and meetings. In her

deposition, Principal Donnelly admitted to monitoring Plaintiff’s classroom closely, but

she explained that she did so because of the large number of reported behavior incidents

in Plaintiff’s classroom and parent complaints. In particular, Mom One and another

parent (“Mom Two”) were unhappy with how Plaintiff assigned homework and enforced

discipline. Principal Donnelly asked Plaintiff to accommodate their requests and to

4

The names of parents were redacted from the record to protect the privacy of their children.

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increase communication with several families by writing bi-weekly e-mails. Although

Plaintiff initially complied with this directive, her compliance was inconsistent.

Consequently, in late 2016, Principal Donnelly contacted Assistant Superintendent of

Human Resources, Rebecca Owens, with “some concerns about insubordination” related

to Plaintiff’s failure to comply with the e-mail directive.

In January 2017, Walnut Grove Assistant Principal Debbie Gaidos conducted a

routine, in-class evaluation of Plaintiff. For the first time in fourteen years, the majority

of Plaintiff’s scores were below average.5 Because Plaintiff suspected that she was being

targeted for termination, she contacted her Tennessee Education Association (“TEA”)

representative, Antoinette Lee, who scheduled an informal meeting with Assistant

Superintendent Goodwin. At the February 27, 2017 meeting, Plaintiff detailed how she

felt Principal Donnelly was “bullying” her and stated that she did not respect

Principal Donnelly. Plaintiff and Ms. Lee requested all future concerns with Plaintiff’s

performance be communicated through Ms. Lee or with Ms. Lee present. They all agreed

to schedule a more formal meeting at a future date. The meeting, however, was never

scheduled.6

After the February 27 meeting, Ms. Goodwin relayed to Principal Donnelly that

Plaintiff “did not respect” Principal Donnelly. Ms. Goodwin also told Principal Donnelly

that future communication was to go through the TEA representative, Ms. Lee, who was

also to be present at any future meetings with Plaintiff. Ms. Goodwin also told Principal

Donnelly to notify Ms. Goodwin about future concerns. Pending the unscheduled

meeting with Ms. Lee and Plaintiff, Principal Donnelly stopped scheduling meetings with

Plaintiff and withheld a “strong” guidance letter she had prepared for Plaintiff about the

failure to follow the e-mail directive. Whenever Principal Donnelly had a concern about

Plaintiff’s actions, she would note the occurrence without confronting Plaintiff. On one

particular day, Principal Donnelly noticed that Plaintiff arrived almost four minutes late

for school. Principal Donnelly notified Ms. Goodwin of Plaintiff’s tardy arrival but did

not approach Plaintiff about it. Ms. Goodwin asked Principal Donnelly to keep track of

future arrival times to see if there was a pattern.

5

Ms. Gaidos performed two “walk through” evaluations in March, one on March 8 and one on

March 14. Plaintiff’s “walk through” scores were higher than her January evaluation scores, with none

falling below average.

6

According to the deposition testimony, it appears that Ms. Lee, Ms. Goodwin, and

Ms. Donnelly expected the others to schedule the meeting.

- 13 -

Matters took a turn for the worse on March 9, 2017, when Mom Two allegedly

saw Plaintiff respond in frustration to the child of Mom One. Plaintiffs’ class was lining

up in the hallway for a school play, and the students were “wiggling with excitement.”

Although all the students were acting this way, Plaintiff allegedly turned to Mom One’s

child, got on her knees, placed the child’s hands by his side, and said, “STOP IT.” Mom

Two believed the reaction was inappropriate, but she did not report the incident because

she already had a history of complaints against Plaintiff.

A month later, Mom One confided in Mom Two that she believed Plaintiff had

been unfairly singling Mom One’s child out for discipline. Mom Two immediately

recalled the March 9 incident and revealed what she had seen. Both Mom One and Mom

Two decided the incident was relevant to Mom One’s concern about the unfair targeting

of her child. The next day, Mom Two called Principal Donnelly to report the incident.

After ending the call with Mom Two, Principal Donnelly immediately reported the

incident to Ms. Goodwin and Ms. Owens. According to Ms. Goodwin,

Principal Donnelly called and reported an allegation of “inappropriate touching” based on

Plaintiff’s use of physical redirection in “frustration and anger.” According to

Ms. Owens, Principal Donnelly reported an allegation that Plaintiff “grabbed a child.”

Ms. Owens instructed Principal Donnelly that Ms. Owens would handle communications

with Plaintiff regarding the allegation, directed Principal Donnelly to report the incident

to the School Resource Officer, Torrey Shelby, and obtain a written statement from Mom

Two. Ms. Owens said that they would have to discuss the allegation with Superintendent

Dr. Looney, but the protocol would be to suspend Plaintiff pending an investigation.

Ms. Gaidos then called Mom Two and obtained a written statement from her.

Principal Donnelly called Officer Shelby and told him an allegation had been

made against Plaintiff concerning the “grabbing” of a child. When Officer Shelby and

Principal Donnelly reviewed the surveillance camera activity for March 9, 2017, they

realized that the alleged incident occurred in an area that was not in the camera’s view.

Based on the details of the allegation, Officer Shelby immediately determined that no law

enforcement investigation was necessary.

Back at the Central Office, Ms. Owens and Ms. Goodwin told Dr. Looney about

Plaintiff’s alleged use of “physical contact . . . to discipline a student.” Dr. Looney

instructed Ms. Owens to investigate the matter and signed a letter informing Plaintiff that

she was being suspended pending an investigation. Ms. Owens contacted Plaintiff’s TEA

representative, Ms. Lee, to discuss the suspension; however, Ms. Lee was out of town, so

she requested that Ms. Owens not discuss any substantive matters with Plaintiff until she

returned.

The next afternoon, Thursday, April 13, 2017, Ms. Owens called Plaintiff about

the allegations. Plaintiff listened to the call on speakerphone with a co-worker. According

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to Plaintiff and her co-worker, Ms. Owens told Plaintiff she “was under investigation

with the Sheriff’s Department and [Department of Children’s Services] for child abuse.”

In her deposition, Ms. Owens denied that she said “child abuse” during the phone call but

admitted that she told Plaintiff the matter had been reported to law enforcement.7

Ms. Owens informed Plaintiff that she was being suspended pending the investigation

and arranged to meet with Plaintiff on the following Monday.

On the morning of Monday, April 17, 2017, Plaintiff and her husband met with

Ms. Owens. Although they attempted to gather details about the allegations, Ms. Owens

provided only generalized information because Ms. Lee was not present. She did,

however, present Plaintiff with the letter from Dr. Looney, which stated that Plaintiff was

being suspended without pay pursuant to Tenn. Code Ann. § 49-5-511(a)(3),8 pending an

investigation into allegations that she “grabbed a student and forced his arms down.” The

letter further provided that the allegations, if substantiated, would constitute a violation of

Board Policy 5.611, Ethical Practice for Teachers. Ms. Goodwin stated that suspension

without pay was “normal protocol” when there were “allegations of abuse” and reiterated

that the allegations had been “reported to the sheriff.” Ms. Goodwin stated that the school

would investigate once the law enforcement investigation was complete. Ms. Goodwin

explained several times that Principal Donnelly was not handling the report at the school

level because the parent “alleged child abuse.”

The next day, April 18, 2017, Ms. Goodwin provided a copy of Mom One’s

written statement to Ms. Lee and requested an investigatory interview with Plaintiff. On

Thursday, April 20, 2017, Plaintiff and Ms. Lee met with Ms. Owens to give a verbal and

written statement. Plaintiff told Ms. Owens that she did not remember the incident but

that she often used physical touch to redirect students. Plaintiff also stated that she had to

discipline Mom One’s child often.

Ms. Owens reported to Dr. Looney that Plaintiff “admitted to touching the child

and to redirecting his shoulders, and she said she did it often.” Ms. Owens believed that

Plaintiff’s admissions corroborated Mom Two’s allegations, and determined that Plaintiff

had violated the Board’s Ethical Practices policy. She recommended that Plaintiff be

7

Ms. Owens testified that she did not know that Officer Shelby had declined to investigate or that

his report would have been only “informational.”

8

Tenn. Code Ann. § 49-5-511(a)(3) provides, in relevant part, “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.”

- 15 -

suspended for three days. Dr. Looney agreed and directed the placement of cameras and a

teacher assistant in Plaintiff’s classroom.

One day later, on Friday, April 21, 2017, Ms. Lee and Plaintiff returned to the

Central Office to meet with Ms. Owens and Ms. Goodwin. During the meeting,

Ms. Owens presented Plaintiff with a formal, written reprimand signed by Dr. Looney.

The letter stated Plaintiff was being suspended for three days without pay for violating

the Ethical Practices Policy, applied retroactively to the days Plaintiff was suspended

pending the investigation. The letter also warned Plaintiff that additional violations of the

policy would warrant consideration of discipline, including termination. The letter

informed Plaintiff she had a right to appeal the suspension and request a hearing within

10 days. Ms. Goodwin informed Plaintiff that cameras would be placed in the classroom

to protect her from further false allegations.

On Monday, April 24, 2017, Plaintiff returned to her classroom, which was now

wired with two cameras. Then, without notice, a teacher assistant showed up to monitor

the class. In her deposition, Plaintiff testified that she did not know how to explain her

absence, the cameras, or the teacher assistant’s presence to the students.

A rumor that Plaintiff had been charged with child abuse quickly spread. When

Mom Two and Mom One heard the rumor, they each sent an e-mail to the school

administration. Mom Two wrote Principal Donnelly and Ms. Gaidos, clarifying that she

“would not classify” what she saw “as child abuse” and that “[i]f my statement justified

child abuse, then I feel that my verbiage was unclear.” Similarly, Mom One wrote to

Ms. Owens, stating that her concern had been with “how [Plaintiff] singled [her child]

out” and he was always in trouble—not that Plaintiff had committed child abuse.

Responding to Mom One, Ms. Owens stated that she was “not aware of [Plaintiff] being

charged with child abuse,” but explained that the school administration had “reporting

obligations” when presented with “allegations of abuse.”

Shortly after Ms. Owens gave Plaintiff the suspension letter, Ms. Lee arranged for

Plaintiff to receive legal representation from the TEA and appeal the suspension. On

May 1, 2017, Plaintiff’s TEA attorney, John Allen, sent a letter to Dr. Looney requesting

a conference under Tenn. Code Ann. § 49-5-512(d)(2).9 The letter also asserted that

9

Tenn. Code Ann. § 49-5-512(d)(2) provides, in relevant part:

Upon request made in writing within five (5) days from the date of the suspension letter

or the date it was received, whichever is later, the director shall provide a conference with

the director at which the teacher may offer rebuttal to the charges or any information the

teacher wishes the director to consider.

- 16 -

Dr. Looney had not complied with Tenn. Code Ann. § 49-5-512(d)(1), which required

him to provide Plaintiff with “copies of any documents relied upon” in deciding to

suspend her.

Although the investigation had concluded, concerns remained in the

administration about Plaintiff’s struggles with classroom management. Thus,

Ms. Goodwin became concerned when she saw surveillance video that showed Plaintiff

was on her computer for an extended period instead of instructing the students. She also

noted that Plaintiff had not called on a child who had his hand raised, and Plaintiff was

out of the room when two children got into a beanbag fight. Based on these observations,

Ms. Owens and Ms. Goodwin went to see Dr. Looney again on May 2, 2017.

Dr. Looney—who had access to the school surveillance cameras—pulled up the video

feed from Plaintiff’s classroom.10 After seeing Plaintiff on her computer, he sent Plaintiff

an e-mail with one line: “Concerned about you leaving the room unattended and spending

so much time on your computer.” Plaintiff, feeling like her every move was being

monitored, contacted Mr. Allen and told him that she wanted to resign.

Mr. Allen contacted the Board’s General Counsel about Plaintiff’s resignation, and

he requested the Board waive the usual 30-day notice period, reverse Plaintiff’s three-day

suspension, and compensate her for the three days of missed pay. On May 11, 2017,

Mr. Allen notified Plaintiff that the Board had agreed to her resignation but only on the

condition that she finish the school year as a substitute teacher outside of Walnut Grove

Elementary.

The next afternoon, May 12, 2017, Plaintiff submitted her resignation letter,

effective May 24, 2017.11 In her deposition, Plaintiff testified that she wanted to continue

her appeal but “wasn’t allowed” to finish the process because of the resignation.

Based on the above and other evidence in the record, the trial court concluded that

Plaintiff’s claim for breach of contract was barred due to her failure to follow the

grievance procedures in the Memorandum of Understanding (“MOU”) or file an appeal

of the suspension. The court reasoned that the MOU’s grievance procedures were

“clearly intended to be the exclusive mechanism for educators to use when complaints

10

During his deposition, Dr. Looney testified that this was the only time he viewed the camera

feed from Plaintiff’s classroom.

11

The record contains no copy of the resignation letter or any other memorialization of its terms.

- 17 -

arose,” and found Plaintiff had conceded that she knew her resignation “would result in a

forfeiture of her grievance.”12

On Plaintiff’s amended IIED claim, the court determined that the Individual

Defendants were entitled to summary judgment because the Tenure Act provided

immunity “from all liability stemming from the investigation of [Plaintiff] which led to

her suspension.” Moreover, the court found that the Individual Defendants’ actions

amounted to “insults, indignities and petty oppressions” but did not amount to the degree

of outrage required for a viable claim of IIED.

On appeal, Plaintiff argues that the trial court’s decision overlooks the “implied

covenant of good faith and fair dealing” in the Teachers’ Bill of Rights, Tenn. Code Ann.

§ 49-5-209. Plaintiff also contends that the MOU does not require teachers to exhaust the

grievance process before seeking judicial relief and, even if it does, the Board repudiated

this requirement by forcing Plaintiff to abandon her appeal in exchange for her

resignation.13 As for the dismissal of her IIED claim, Plaintiff asserts that the Tenure

Act’s immunity clause does not apply to the Individual Defendants because they were not

“performing their duties” when they coerced her resignation. Further, Plaintiff maintains

that the false accusation of child abuse was “per se outrageous” because it constituted a

criminal act under Tenn. Code Ann. § 37-1-413.14

12

Although Plaintiff’s deposition testimony was equivocal on whether she knew her resignation

would result in forfeiture of her appeal, the trial court found Plaintiff’s trial counsel conceded the matter

at oral argument.

13

As discussed in section I.A., supra, Plaintiff also argues that the Board breached the MOU by

constructively discharging her. Because we find Plaintiff waived this issue when she filed her Amended

Complaint, we decline to address it.

14

Tenn. Code Ann. § 37-1-413 provides:

Any person who either verbally or by written or printed communication knowingly and

maliciously reports, or causes, encourages, aids, counsels or procures another to report, a

false accusation of child sexual abuse or false accusation that a child has sustained any

wound, injury, disability or physical or mental condition caused by brutality, abuse or

neglect commits a Class E felony.

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A. Breach of Contract

The Amended Complaint asserted that the Board breached its contract with

Plaintiff, as memorialized in the MOU between the Board and the Williamson County

Educational Association (“MCEA”).15

Plaintiff alleged that the Board violated the Article VIII, Section 8.1(a) of the

MOU, Student Discipline Procedures, which provided, “The Board recognizes its

responsibility to give all reasonable support and assistance to educators with respect to

the maintenance of control and discipline in the classroom.” Plaintiff asserted the Board

breached its duty under this provision when it failed to provide her with support or

protection, despite knowing that nine out of the 18 students in Plaintiff’s class required

special attention and one student, in particular, needed verbal and physical redirection

throughout the day.

The Amended Complaint also alleged that the Board violated Article X, Section

10.1 of the MOU, Educator Conduct and Disciplinary Procedures, which provided, in

relevant part:

Section 10.1 Definitions

. . . .

Disciplinary action shall be for just cause and may include the following:

1. Oral reprimand (documented but not placed in the personnel file)

2. Written reprimand

3. Suspension

4. Dismissal of an educator, which is governed by T.C.A. § 49-5 Part 5.

. . . .

Section 10.4 Notice of Deficiencies

15

For the purposes of summary judgment, the Board conceded at oral argument that the

Memorandum of Understanding was a contract.

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In addition to the progressive discipline described in Section 12.1 above,

the Board recognizes the concept of progressive improvement. In the event

an administrator determines that an educator has deficiencies in his or her

work, that administrator may, outside the evaluation process, notify the

educator in writing of any alleged deficiencies, indicate expected

correction, propose an improvement plan specifying necessary

improvements or needed actions, and indicate a reasonable period of time

for correction.

(emphasis added). Plaintiff asserted that the Board breached these provisions because it

suspended her without just cause; failed to take “progressive” disciplinary action; and

failed to give her an opportunity for progressive improvement.

Further, the Amended Complaint alleged that the Board violated Article XI,

Section 11.1 of the MOU, Complaints, which provided in relevant part:

Any written complaint regarding an educator made to any member of the

administration by a parent, Student, or other person shall be investigated by

the administrator and the following steps shall be taken:

. . . .

d. The educator shall be given an opportunity to respond to the

complaint and meet with the complainant and the immediate

supervisor upon educator request, in order for the educator to

rebut the complaint.

Plaintiff asserted that the Board breached this provision by failing to provide her a

right to confront the parent who accused her of child abuse.

In addition to the MOU, the Amended Complaint alleged that the Board violated

its Anti-Harassment Policy, which provided the Board would “maintain a learning and

working environment that is free from harassment of any type”; its Complaints and

Grievances Policy, which provided the Board would “be fair and just to all parties to a

dispute, irrespective of the influence, location or length of residence, race or any other

factors”; and its implied duty of good faith and fair dealing.

To begin with, we find Plaintiff has waived her arguments concerning the Board’s

duty of good faith and fair dealing under the Teacher Bill of Rights, Tenn. Code Ann. §

49-5-209. In its Motion for Summary Judgment, the Board addressed the Teacher Bill of

Rights “out of an abundance of caution” because Plaintiff purportedly identified the

statute during discovery, as a source of contract rights. Plaintiff did not, however, raise it

as a basis for her contract claim in the Amended Complaint. Accordingly, the trial court

- 20 -

declined to address it. Regardless, we find the dispositive issue is whether Plaintiff put

forth evidence of damages caused a breach of contract.

A claim for breach of contract requires “(1) the existence of an enforceable

contract, (2) nonperformance amounting to a breach of the contract, and (3) damages

caused by the breach of the contract.” ARC LifeMed, Inc. v. AMC–Tennessee, Inc.,

183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (quoting Custom Built Homes v. G.S. Hinsen

Co., Inc., No. 01A01-9511-CV-00513, 1998 WL 960287, at *3 (Tenn. Ct. App. Feb. 6,

1998)). Plaintiff’s Amended Complaint seeks compensatory and punitive damages, and

alleges the Board’s breach of contract was “the proximate and legal cause of Plaintiff[’s]

compensatory damages” including “lost back pay, lost front pay, lost benefits,

humiliation, and loss of reputation in the community, employability, and

embarrassment.” Except in some narrow circumstances, which do not apply, neither

punitive damages nor damages for mental anguish are recoverable in a contract action.

See Johnson v. Women’s Hospital, 527 S.W.2d 133, 141 (Tenn. Ct. App. 1975) (“The

general rule is that punitive damages are not recoverable in a contract action and neither

are damages for mental anguish[.]”).

Mental anguish includes loss of reputation. See Reitz v. City of Mt. Juliet,

No. M2016-02048-COA-R3-CV, 2017 WL 3879201, at *2–3 (Tenn. Ct. App. Aug. 31,

2017) (finding no authority for awarding damages for impairment to reputation, personal

humiliation, and mental anguish and suffering in action for breach of contract).

Additionally, front pay is not recoverable in a breach of contract action. See Sircy v.

Metro. Gov’t of Nashville & Davidson Cty., 182 S.W.3d 815, 821 (Tenn. Ct. App. 2005)

(finding that plaintiff was entitled to damages only for “damages resulting from” the

breach of contract, which did not include front pay). Thus, the only damage claimed by

Plaintiff that is recoverable in an action for breach of contract is for lost back pay.

It is undisputed that Plaintiff finished the 2016–2017 school year as a substitute

teacher and was paid for the three days of lost salary in exchange for her resignation.

Consequently, we find Plaintiff has failed to show she lost any back pay.

To the extent Plaintiff has sustained emotional injuries and consequential damages

in lost front pay, her remedy for those injuries lies in her tort claim for wrongful

termination. See Sasser v. Averitt Exp., Inc., 839 S.W.2d 422, 433 (Tenn. Ct. App. 1992)

(explaining that the remedy of front pay may be appropriate in wrongful discharge claims

when reinstatement is not feasible).

B. Intentional Infliction of Emotional Distress

Plaintiff contends that the Individual Defendants were not entitled to immunity

under the Tenure Act because (1) the Individual Defendants committed a felony by

- 21 -

falsely accusing Plaintiff of child abuse; and (2) the Individual Defendants were not

“performing their duties” when they coerced her resignation.

“The elements of an intentional infliction of emotional distress claim are that the

defendant’s conduct was (1) intentional or reckless, (2) so outrageous that it is not

tolerated by civilized society, and (3) resulted in serious mental injury to the plaintiff.”

Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012). On appeal, the only

conduct that Plaintiff relies on to establish outrageous conduct is the false accusation of

child abuse. Thus, we find the dispositive issue is whether the Individual Defendants

were entitled to immunity under the Tenure Act for claims related to the accusation,

investigation, and suspension.16

The Tenure Act provides that “[t]he director of schools or other school officials

shall not be held liable, personally or officially, when performing their duties in

prosecuting charges against any teacher or teachers under this part.” Tenn. Code Ann.

§ 49-5-512(b). This immunity is absolute. Buckner v. Carlton, 623 S.W.2d 102, 104

(Tenn. Ct. App. 1981), superseded by statute on other grounds, Act of May 24, 1984,

Tenn. Pub. Acts, ch. 972, 1026, as recognized in Lucas v. State, 141 S.W.3d 121, 129,

137 (Tenn. Ct. App. 2004)). Thus, “the officer is immune from suit even though malice

or corruption is present.” Id. Nonetheless, immunity “applies only where the [defendants]

were acting within the scope of their duties as school officials prosecuting the [teacher].”

Id. at 105.

In Buckner v. Carlton, a school principal sued his assistant principal and

superintendent for bringing false charges against him for, inter alia, misappropriation of

school funds and conspiring to testify falsely during the investigation. Id. at 103.

Although the Complaint alleged that the defendants brought the charges in bad faith, we

found the Tenure Act provided immunity to the defendants. Id. at 106. Looking to the

criminal justice system for guidance, we noted that “public prosecutors generally enjoy

absolute immunity from suit for acts related to the instigation and prosecution of criminal

charges.” Id. at 104 (citing 52 Am. Jur. 2d Malicious Prosecution § 67 (1970)). We

explained that immunity was justified by the “concern that harassment by unfounded

litigation would cause a deflection of the prosecutor’s energies from his public duties,

and the possibility that he would shade his decisions instead of exercising the

independence of judgment required by his public trust.” Id. at 104–05 (quoting Imbler v.

16

Because Plaintiff did not raise the issue of whether the Individual Defendants committed a

“felony” in the trial court, we find the issue is waived. See, e.g., Wilson v. Esch, 166 S.W.3d 729, 730

(Tenn. Ct. App. 2005) (holding that party may not raise an issue for the first time on appeal).

- 22 -

Pachtman, 424 U.S. 409, 422–23 (1976)). Thus, “a teacher faced with the possibility of a

loss of job and professional reputation might readily conclude that school officials are out

to ‘get’ him or her, and thus retaliate with a lawsuit after the hearing has concluded.” Id.

at 105. Accordingly, in Padgett v. Clarksville-Montgomery County School System, we

found a human resource officer was immune from suit for an alleged libelous statement

in her final investigation report because it was “part of the prosecutorial functions of her

job.” No. M2017-01751-COA-R3-CV, 2018 WL 5881766, at *6 (Tenn. Ct. App. Nov. 9,

2018); see also Monce v. Marshall Cty. Bd. of Educ., 307 F. Supp. 3d 805, 821–22 (M.D.

Tenn. 2018) (interpreting § 512(b) as prohibiting an action against a director of schools

under the Tenure Act for allegedly imposing a long-term disciplinary suspension outside

the bounds of her authority); Jacox v. Memphis City Bd. of Ed., 604 S.W.2d 872, 874–75

(Tenn. Ct. App. 1980) (finding school officials were immune from suit arising out of

their preparation of charges and testimony in support).

Based on the foregoing, we find the Tenure Act protects the Individual Defendants

from liability for their participation in the investigation and prosecution of Plaintiff.17

Accordingly, we affirm the trial court’s summary judgment on this claim.

IN CONCLUSION

The judgment of the trial court is affirmed in part, reversed in part, and this matter

is remanded for further proceedings consistent with this opinion. Costs of appeal are

assessed against the parties evenly.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

17

Plaintiff also argues that the GTLA, Tenn. Code Ann. § 29-20-201(b)(2), provides for the

removal of immunity for government authorities whose conduct “amounts to willful, wanton, or gross

negligence.” However, the Tenure Act’s specific grant of immunity takes precedence over the GTLA’s

provision that is more general. See Padgett, 2018 WL 5881766, at *6.

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