Michael Kevin Upchurch v. Sullivan County Department Of Education

03/24/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 2, 2020 Session

MICHAEL KEVIN UPCHURCH v. SULLIVAN COUNTY DEPARTMENT

OF EDUCATION

Appeal from the Circuit Court for Sullivan County

No. C42530 John S. McLellan, III, Judge

___________________________________

No. E2019-01071-COA-R3-CV

___________________________________

A vocational teacher sued his former employer, a county department of education, alleging

that the department’s intentional failure to remediate mold contamination at the high school

where he taught caused him to suffer long-term detrimental health effects and emotional

distress. The trial court dismissed the teacher’s claims pursuant to Tennessee Rule of Civil

Procedure 12.02(6), finding that the Tennessee Workers’ Compensation Law, Tennessee

Code Annotated section 50-6-101 et seq., provided the exclusive remedy for the acts

alleged in the complaint and that the allegations therein failed to state a claim upon which

relief can be granted under the statutory framework. Upon our review of the pleadings, we

affirm the trial court’s judgment.

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

Case Remanded

KRISTI M. DAVIS, J., delivered the opinion of the court, in which JOHN W. MCCLARTY and

THOMAS R. FRIERSON, II, JJ., joined.

Michael Kevin Upchurch, Kingsport, Tennessee, Pro Se.1

Daniel P. Street, Blountville, Tennessee, for the appellee, Sullivan County Department of

Education.

1

Upchurch’s counsel on appeal, who also represented him before the trial court, was placed on

temporary suspension from the practice of law after this appeal was filed. See In re: Kyle Douglas Vaughan,

BPR #032416, No. M2020-00100-SC-BAR-BP (Tenn. Jan. 21, 2020) (order). Consequently, this Court

removed Mr. Vaughan as Upchurch’s counsel of record and gave Upchurch thirty days to obtain new

counsel. Upchurch v. Sullivan Cnty. Dep’t of Educ., No. E2019-01071-COA-R3-CV (Tenn. Ct. App. Feb.

25, 2020) (order). Upchurch did not obtain new counsel.

OPINION

Background

On February 19, 2019, Michael Kevin Upchurch (“Upchurch”) filed a complaint

against his former employer, the Sullivan County Department of Education (“SCDE”), in

the Circuit Court for Sullivan County (the “trial court”). Upchurch asserted four separate

causes of action: (1) Public Policy: Intentional Failure to Remediate Contamination of

Property; (2) Public Policy: Intentional Concealment of Biohazardous Exposure; (3) Fraud:

Intentional Misrepresentation; and (4) Intentional Infliction of Emotional Distress. The

complaint contains the following allegations relevant to Upchurch’s claims:

9. Plaintiff was an employee of the SCDE working in the capacity of a

full-time vocational teacher at Sullivan North High School for school

years 2017-2018 and 2018-2019 . . . .

10. During the week of January 7, 2018, Plaintiff was moved to an

upstairs classroom which had been closed and unused since May

2017.

11. By the following week, the Plaintiff had grown ill with a fever of

103.7 degrees Fahrenheit with flu-like symptoms and a rash covering

Plaintiff’s chest and armpits.

12. Plaintiff took four (4) days off from work during which time

Plaintiff’s fever dissipated.

13. Upon returning to work, Plaintiff became severely ill once again with

flu-like symptoms which perpetually lingered.

....

15. On February 21, 2018, Plaintiff was moving resources from classroom

1058 across the hall to his classroom when Plaintiff observed what

looked to be mold on books.

16. During the Plaintiffs planning period on the same date, Plaintiff lifted

a ceiling tile in one of the upstairs classrooms and discovered

Stachybotrys (“Toxic Black Mold”) growing above the drop ceiling

ranging from six (6) feet to ten (10) feet in height with Toxic Black

Mold reaching to the roofline. The steel support beams were coated in

white mold which is known to grow in the presence of Toxic Black

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Mold.

....

18. Plaintiff reported the Toxic Black Mold findings to the principal at the

time, . . . who assured the Plaintiff the Toxic Black Mold would be

“taken care of.”

19. Two SCDE Maintenance Department employees entered the back-

shop area approximately forty-five (45) minutes later. The

maintenance employees asked Plaintiff where the mold was located

and Plaintiff advised them of the location.

....

21. By the end of day on February 21, 2018, Plaintiff was informed the

material Plaintiff observed on the books was not mold, but fingerprint

dust from the criminal justice class. When Plaintiff asked about the

Toxic Black Mold above the ceiling tiles, the maintenance worker

ignored Plaintiff’s inquiry and left the school.

22. On February 22, 2018, Plaintiff took his camera to the school and

began documenting the Toxic Black Mold findings.

23. Plaintiff also removed a ceiling tile just outside Plaintiff’s classroom,

Room 1058, to have a physical sample tested for Toxic Black Mold.

....

26. [SCDE’s superintendent of maintenance] informed Plaintiff that there

was no mold to worry about and the “school roof leaked the thirty (30)

years he . . . taught there and he . . . never got sick.” Plaintiff was

flabbergasted at [the] admission to knowledge of structural issues

leading to water damage that could promote mold growth as well as

[the] failure to act to resolve the issue in the four (4) years [he] has

been the superintendent of maintenance for SCDE.

27. On February 24, 2018, Plaintiff sought medical treatment from the

emergency room at Johnson City Medical Center where Plaintiff was

diagnosed with a compromised immune system, congestion around

his heart, and hyperinflated lungs from either a fungal or viral

infection.

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28. When Plaintiff returned to the school the following Monday morning

to prepare the substitute teacher, Plaintiff observed SCDE

maintenance employees had removed and began replacing discolored

ceiling tiles in the upstairs classrooms . . . .

29. Plaintiff began his prescribed week off work and began a regimen of

steroids and antibiotics, but by Wednesday Plaintiff was experiencing

the following symptoms: sneezing, itching skin, skin irritation, watery

eyes, itching eyes, constant headaches, depression, nose bleeds,

constant fatigue, trouble breathing, coughing up 6-8 ounces daily of

black debris, nausea, diarrhea, vomiting, loss of appetite, weight loss,

hair loss, bloody stool, short term memory loss, pain in his joints and

muscles, swollen glands in in his neck and armpits, body shakes, heart

palpitations, coughing up blood, blurred vision, and insomnia.

30. On March 3, 2018, the Plaintiff once again went to the emergency

room at Johnson City Medical Center. Upon examination, the

attending physician informed Plaintiff that while Plaintiff’s blood

counts had marginally improved, it appeared that Plaintiff was still

suffering from some form of an allergy and was most likely fungally

related. Plaintiff was prescribed over the counter allergy medications

and an inhaler to assist with Plaintiffs breathing difficulties.

31. Plaintiff returned to work on March 5, 2018.

32. On March 12, 2018, Plaintiff awoke unable to speak due to Plaintiff’s

throat being covered in blisters and went the emergency room at

Johnson City Medical Center for the third time in less than a month.

Plaintiff was instructed to have a follow up appointment with a

primary care physician and pulmonologist. The emergency room

physician also advised Plaintiff to limit his exposure to any allergens.

33. On March 13, 2018, Plaintiff returned to work and met with his direct

supervisor. Plaintiff informed his supervisor of the Toxic Black Mold

infestation and stated Plaintiff was afraid to file a Worker’s

Compensation claim because Plaintiff was in fear of being

“blacklisted.”

34. During the Plaintiff’s meeting with his supervisor, Plaintiff observed

SCDE maintenance workers in the upstairs classrooms emptying the

classrooms, replacing discolored ceiling tiles, tearing out the carpets,

throwing away all books and furniture thereby destroying evidence

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and attempting to cover up any visible signs of the Toxic Black Mold

infestation.

35. On March 15, 2018, the Plaintiff went to his first appointment with

Plaintiff’s primary care physician. Upon reviewing the Plaintiff’s

blood work abnormalities from Plaintiff’s emergency room visits,

Plaintiff’s physician immediately referred him to an allergist and

pulmonologist.

36. On March 19, 2018, Plaintiff personally drove the tile he removed

from outside classroom 1058 on February 22, 2018 to Southeastern

Environmental Microbiology Laboratories in Greenville, South

Carolina. This lab is the premier asbestos and mold testing laboratory

on the East Coast as they specialize only in asbestos and mold testing.

37. Upon testing the physical sample taken from the ceiling tile removed

from Sullivan North High School, it was confirmed to have medium

levels of Toxic Black Mold.

....

39. The laboratory informed Plaintiff that there is a zero-tolerance for

Toxic Black Mold and it was good the Plaintiff brought a physical

sample as Toxic Black Mold grows indoors and cannot be detected on

air quality tests unless it is physically disturbed and becomes airborne.

The laboratory stated that “whatever building the ceiling tile came out

of needs to be demolished immediately.”

40. Plaintiff reported to SCDE main office on March 26, 2018, to

ascertain if there was any help SCDE could provide the Plaintiff

regarding the Toxic Black Mold infestation and its effect on his

health. SCDE also made copies of the laboratory mold test report.

41. The following day, Plaintiff was instructed to take medical leave and

file a Worker’s Compensation claim.

42. Plaintiff filed his medical leave and Worker’s Compensation claim

paperwork as instructed and also filed a claim for short-term disability

through an additional policy Plaintiff carried through his school

insurance.

43. Plaintiff’s physician ordered Plaintiff to take a medical leave until the

end of May 2018 at which time Plaintiff would require further

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evaluation.

44. Specifically, Plaintiff’s Certification of Health Care Provider for

Employee’s Serious Health Condition (Family and Medical Leave

Act) that was completed by Plaintiff’s physician, and filed with

SCDE, reads, “Flares and disease progression and quantity will all

depend on exposure to mold. If no more mold is in the building or

around Michael, he will recover and have no more flares.”

45. Plaintiff also completed a SCDE Administrative Form 3.602.F2

“Employee’s First Report of Work Injury or Illness” on March 28,

2018. In this report, Plaintiff described how his illness occurred as, “I

was moved to upstairs classroom with temp. of 80 degrees Fahrenheit

and humidity of 67% on thermostat and Toxic Black Mold growing

in ceiling above. I soon became ill and was in and out of emergency

room until I located a PCP.”

....

47. On April 2, 2018, SCDE contracted with Wingfield Environmental

(“Wingfield”) to complete an air mold sample of Sullivan North High

School, specifically an air sample of classroom 1058 and the corridor

immediately outside classroom 1058.

48. These air samples were submitted to SanAir Technologies Laboratory

('”SanAir”) by Wingfield on April 3, 2018 for testing. No evidence of

Toxic Black Mold was found in the air samples submitted.

49. However, SanAir’s organism library specifically states that

Stachybotrys, Toxic Black Mold:

...is usually difficult to find in indoor air samples unless

it is physically disturbed because the spores are in a

gelatinous mass...It proliferates in the indoor

environment with long term water damage, growing on

wallpaper, gypsum board, and textiles. As a general

rule, air cultures for Stachybotrys yields unpredictable

results, mainly due to the fact that this fungus is usually

accompanied by other fungi such as Aspergillus and

Penicillium that normally are better aerosolized than

Stachybotrys.

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50. Wingfield’s letter to SCDE on April 4, 2018 explaining the lack of

Toxic Black Mold in the air samples collected even states:

Please be aware that although a reasonable attempt has

been made to locate suspect fungi (mold) in the

structure, the inspection techniques used are inherently

limited in the sense that only full demolition procedures

will reveal all materials of a structure, and therefore, all

areas of potential mold growth. As such, unidentified

microbial (mold) growth may be located within walls,

ceilings, cavities, below flooring or grade, and other

non-accessible areas that were not identified by the

current sampling efforts. (emphasis added)

By Wingfield's own admission, the air sample collected could not

account for Toxic Black Mold growth in the ceiling areas specifically

pointed out by the Plaintiff to SCDE.

51. On April 4, 2018, Plaintiff was confirmed to have a mold allergy by

The Allergy, Asthma, & Sinus Center, specifically Dr. Phillip W.

Jones, and pulmonologist.

52. During Plaintiff’s medical leave, fellow teachers and school

administration made false statements about the Plaintiff including “he

was sick before he came to the school,” “he got the mold samples from

somewhere else,” and “he’s just doing this for money.”

53. In June 2018, Plaintiff’s Worker’s Compensation claim, short-term

disability, and supplemental short-term disability was denied because

Wingfield Environmental air sample of the building found no spores

of Toxic Black Mold.

54. Upon receiving the denial of Plaintiff’s Worker’s Compensation

claim, short-term disability, and supplemental short-term disability

based upon the air samples conducted by Wingfield, Plaintiff reached

out to Wingfield via telephone.

55. Plaintiff inquired if Wingfield could test the physical sample acquired

by the Plaintiff from Sullivan North High School. Wingfield stated,

“they were not a laboratory and could not test any physical mold

samples.” Wingfield further stated they only conducted air quality

tests and were not even sure where the closest laboratory was to

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conduct a physical test.

56. The following week, Plaintiff received a letter from SCDE offering

the Plaintiff another contract year as a vocational instructor for the

school year 2018-2019.

57. Plaintiff accepted the contract with the assurance by the SCDE there

was no Toxic Black Mold present per the SCDE testing.

....

59. Upon the 2018-2019 school year beginning in August 2018, Plaintiff

immediately noticed the temperature school-wide was much cooler,

the entire school had been repainted inside, and all the old ceiling tiles

had been replaced with new ones.

60. Upon receiving Plaintiff’s new classroom assignment, Plaintiff

immediately noticed he had been assigned to a room where no ceiling

tiles had been replaced and was the moldiest room in the entire school.

61. Upon advising the new principal . . . that Plaintiff has a mold allergy

and cannot be exposed to mold, Plaintiff was informed by [the new

principal] that there was “no mold, just water damage” to the ceiling

tiles.

62. Plaintiff pointed out a ceiling tile with finger-like growths on it, a

telltale sign of mold, and informed [the new principal] that Plaintiff

would be relocating to the vocational shop due to the obvious presence

of mold.

63. Plaintiff chose to relocate to the vocational shop which had no air

conditioning and a temperature of 85 degrees Fahrenheit in an attempt

to remove himself from presence of Toxic Black Mold.

64. From the beginning of the school year, Plaintiff’s health progressively

declined yet again.

....

66. On February 2, 2019, the Plaintiff found himself hospitalized again

with sharp chest pain when laying down, elevated blood pressure and

elevated heart rate. Plaintiff's blood testing revealed a high level of

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monocytes1 and absolute monocytes.

67. On February 5, 2019, Plaintiff met with [the new principal] regarding

Plaintiff’s health declining again and [the new principal] immediately

exclaimed, “Whoa, there’s no mold in this building! We had it tested!

If you’re a disgruntled employee, you need to go talk to the

superintendent.”

68. Plaintiff explained the Toxic Black Mold infestation to [the new

principal], who continued to deny the infestation. Yet, by the end of

the day, SCDE maintenance workers were once again a hive of

activity exchanging discolored ceiling tiles for new ceiling tiles in an

attempt to hide any Toxic Black Mold.

69. On February 6, 2019, Plaintiff took a sick day due to his health

deteriorating.

70. On February 7, 2019, parts of Sullivan North High School had flooded

due to the rain and SCDE maintenance workers were present tearing

out brand new ceiling tiles that had buckled and busted due to water,

trash cans catching water from the roof, and attempting to stop the

roof leaks.

71. Plaintiff showed a PowerPoint presentation to his construction class

regarding Building Safety: Asbestos and Toxic Black Mold as part of

the curriculum. Every picture in the presentation regarding Toxic

Black Mold were pictures taken by the Plaintiff of the infestation at

Sullivan North High School. An assistant principal appeared in the

Plaintiff’s class and became aware of the presentation being done.

72. During Plaintiff’s lunch period, two Sullivan County Sheriff’s Office

deputies and an assistant principal for Sullivan North High School

presented themselves to the Plaintiff and stated the superintendent of

schools . . . wanted to see the Plaintiff in one of the offices.

73. While walking towards the office, Plaintiff stated Plaintiff knew how

infested the building was with Toxic Black Mold where [the

superintended of schools] wanted to meet with Plaintiff and that if

[she] wanted to speak with Plaintiff, [she] could come to his shop.

74. Upon Plaintiff mentioning the Toxic Black Mold infestation in the

hallway, an assistant principal immediately exclaimed, where all

students and staff present could hear, “Whoa, there’s no mold in here!

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We’ve had it tested!” Plaintiff shook his head in disbelief and returned

to his shop.

75. [The superintendent of schools] came to Plaintiff’s shop with [the

former principal]. [The superintendent of schools] asks, “Mr.

Upchurch, what is the problem?” Plaintiff proceeds to explain, again,

about the Toxic Black Mold infestation. Plaintiff explained that [the

former principal] was made aware the previous year of the infestation

and had done nothing to remediate the problem.

76. [The superintendent of schools] requested for Plaintiff to turn over his

PowerPoint presentation about asbestos and Toxic Black Mold to [the

new principal], which Plaintiff refused to do.

77. Plaintiff inquired what was necessary for him to end his employment

with SCDE due to SCDE intentional failure to remediate the Toxic

Black Mold infestation.

78. Plaintiff left the premises and as soon as Plaintiff left the school

parking lot, a Sullivan County Sheriff’s Office deputy followed the

Plaintiff all the way to Plaintiff’s exit.

79. After Plaintiff’s departure, the students heard other teachers and

school administration state that Plaintiff was “a liar,” “sick before he

came to the school,” and “a son of a bitch” and the students relayed

the same information to the Plaintiff.

80. On February 13, 2019, Plaintiff personally delivered two (2) samples

to Assured Bio Labs, LLC (“Assured Bio”) in Oak Ridge, Tennessee

for physical testing. The first sample was the ceiling tile from the

school year 2017-2018, which has been preserved by the Plaintiff, and

the second sample was a ceiling tile collected during the 2018-2019

school year.

81. Both ceiling tile samples tested positive for medium levels of Toxic

Black Mold.

82. Assured Bio states the following about Stachybotrys, Toxic Black

Mold:

Conditions for growth include areas subject to

temperature fluctuations that also have a relative

humidity above 55%. The pathology to human exposure

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may include allergies, dermatitis, cough, rhinitis, nose

bleeds, cold and flu symptoms, headache, general

malaise and fever, and diarrhea. It produces mycotoxins

which are extremely potent. Toxins produced by the

fungus may suppress the immune system-affecting

lymphoid tissue and the bone marrow. Exposure via

inhalation, ingestion, or dermal/skin should be avoided.

83. On February 13, 2019, a school wide voice message and text message

was sent to all Sullivan North Middle and High School parents from

[the new principal] stating the school would be closed on Thursday,

February 14, 2019, and Friday, February 15, 2019, due to four (4)

areas testing positive for low levels of Toxic Black Mold spores

through an air sample conducted by Wingfield.

....

85. SCDE’s intentional recklessness continues even following the

acknowledgment of the presence of Toxic Black Mold as the Watauga

Valley District Conference Tournament was held at Sullivan North

High School less than forty-eight (48) hours after the parents and staff

were notified that school would be canceled for mold remediation. In

fact, the tournament began on Friday, February 15, 2019 which was

one of the days school was canceled and set aside for mold

remediation work. The tournament continued throughout the weekend

prior to any re-testing results being received by SCDE thereby

continuing to expose the unknowing regional general public to a toxic

environment.

Upchurch sought $3 million in compensatory damages and $18 million in punitive

damages, alleging that SCDE’s conduct was “outrageous and intentional from the outset”

and “repugnant and beyond comprehension as acceptable in any civilized society.”

SCDE moved to dismiss the complaint in its entirety pursuant to Tennessee Rule of

Civil Procedure 12.02(6).2 SCDE argued that Upchurch’s claims should be dismissed

because the Tennessee Workers’ Compensation Law provides the exclusive remedy for the

acts alleged in the complaint. SCDE also argued that the exception to the Workers’

Compensation Law’s exclusivity provision did not apply because Upchurch did not allege

facts showing that SCDE “actually intended to injure” him. In the alternative, SCDE

2

Rule 12.02(6) permits defendants to file a motion to dismiss a plaintiff’s claim for “failure to state

a claim upon which relief can be granted.” Tenn. R. Civ. P. 12.02(6).

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asserted that it was immune from liability under the Tennessee Governmental Tort Liability

Act (“the GTLA”), Tennessee Code Annotated section 29-20-101 et seq., because the

GTLA does not waive immunity for the intentional torts alleged in the complaint.3

Upchurch objected to SCDE’s motion, asserting that the “intentional torts” he alleged were

not subject to either statute.

On May 17, 2019, the trial court granted SCDE’s motion and dismissed the case,

concluding that the Workers’ Compensation Law provided the exclusive remedy for the

allegations in the complaint and that the complaint did not seek relief under that statute.

Although it recognized a narrow exception to the Workers’ Compensation Law’s

exclusivity provision, the trial court found the exception inapplicable because Upchurch

did not allege that SCDE “actually intended to injure [him].” The trial court also concluded

that the complaint “states no claim under [the GTLA].” On October 21, 2019, the trial

court dismissed—for failure to prosecute—Upchurch’s motion for relief of judgment and

reconsideration, which he had filed over four months earlier on June 17, 2019. Upchurch

timely appealed the dismissal of his claims.

Issues Presented

We restate and rearrange the issues raised by Upchurch as follows:4

1. Whether the trial court erred in dismissing his complaint for failure to state a

claim upon which relief can be granted based on the exclusivity provision of

the Tennessee Workers’ Compensation Law.

2. Whether SCDE’s intentional acts fall under the exception to the Workers’

Compensation Law exclusivity provision.

3. Whether SCDE’s intentional acts are limited by the Tennessee Governmental

Tort Liability Act.

Standard of Review

The standard of review applicable to a trial court’s ruling on a motion to dismiss

3

Although SCDE stated in its motion that Upchurch may have stated a claim under the GTLA for

“Injury from Dangerous Structures,” see Tenn. Code Ann. § 29-20-204(a), such claim is neither apparent

from the face of the complaint nor raised by Upchurch in this appeal.

4

Upchurch also raised a fourth issue: “Can I received Due process?” Our reading of Upchurch’s

appellate brief leaves no doubt that this “issue” only challenges the trial court’s ruling. The brief states: “I

would like this Honorable Court . . . to restore my faith in our States [sic] Justice System by granting me

Due Process . . . and overturn District [sic] Court’s ruling . . . .” This issue is therefore subsumed under our

overarching review of the trial court’s grant of SCDE’s motion to dismiss.

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based on Rule 12.02(6) of the Tennessee Rules of Civil Procedure is de novo, with no

presumption of correctness. Phillips v. Montgomery Cnty., 442 S.W.3d 233, 237 (Tenn.

2014). A Rule 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). Such motion “‘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.’” Brown v. Tenn. Title Loans,

Inc., 328 S.W.3d 850, 854 (Tenn. 2010) (quoting Freeman Indus., LLC v. Eastman Chem.

Co., 172 S.W.3d 512, 516 (Tenn. 2005)). Thus, the trial court’s ruling must be based on

its examination of the pleadings alone. Webb, 346 S.W.3d at 426. Moreover, the trial court

“must construe the complaint liberally, presuming all factual allegations to be true and

giving the plaintiff the benefit of all reasonable inferences.” Tigg v. Pirelli Tire Corp., 232

S.W.3d 28, 31–32 (Tenn. 2007). However, for a complaint to survive a motion to dismiss,

“[t]he facts pleaded, and the inferences reasonably drawn from these facts, must raise the

pleader’s right to relief beyond the speculative level.” Abshure v. Methodist Healthcare–

Memphis Hosps., 325 S.W.3d 98, 104 (Tenn. 2010). “[C]ourts are not required to accept

as true assertions that are merely legal arguments or ‘legal conclusions’ couched as

facts.” Webb, 346 S.W.3d at 427 (citation omitted).

Analysis

The trial court dismissed the complaint based on the exclusivity provision of the

Workers’ Compensation Law, Tennessee Code Annotated section 50-6-108(a) (2014),

which SCDE raised as an affirmative defense in its Rule 12.02(6) motion to dismiss.

Tennessee Rule of Civil Procedure 8.03 lists “workers’ compensation immunity” as an

affirmative defense. Tenn. R. Civ. P. 8.03. Our Supreme Court has held:

A complaint is subject to dismissal under rule 12.02(6) for failure to state a

claim if an affirmative defense clearly and unequivocally appears on the face

of the complaint. It is not necessary for the defendant to submit evidence in

support of his motion when the facts on which he relies to defeat plaintiff’s

claim are admitted by the plaintiff in his complaint.

Anthony v. Tidwell, 560 S.W.2d 908, 909 (Tenn. 1977) (citations omitted); see also King

v. Bank of Am., N.A., No. W2018-01177-COA-R3-CV, 2020 WL 7861368, at *5 (Tenn.

Ct. App. Dec. 29, 2020); Stephens v. Home Depot U.S.A., Inc., 529 S.W.3d 63, 72 (Tenn.

Ct. App. 2016). “In other words, the plaintiff’s own allegations in the complaint must show

that an affirmative defense exists and that this defense legally defeats the claim for relief.”

Jackson v. Smith, 387 S.W.3d 486, 491–92 (Tenn. 2012) (citations and footnote omitted).

As a threshold issue, we first examine the complaint’s factual allegations to

determine whether Upchurch is precluded from asserting claims outside the statutory

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framework provided by the Workers’ Compensation Law.

I.

Under the Tennessee Workers’ Compensation Law,

The rights and remedies herein granted to an employee subject to the

Workers’ Compensation Law on account of personal injury or death by

accident, including a minor whether lawfully or unlawfully employed, shall

exclude all other rights and remedies of such employee, such employee’s

personal representative, dependents or next of kin, at common law or

otherwise, on account of such injury or death.

Tenn. Code Ann. § 50-6-108(a). Our Supreme Court “has interpreted this statutory section

as mandating that workers’ compensation be considered ‘the exclusive remedy for an

employee who is injured during the course and scope of his employment, meaning the

employee is precluded from seeking tort damages for the injury.’” Byrd v. Appalachian

Elec. Coop., No. E2017-01345-COA-R3-CV, 2018 WL 1953206, at *4 (Tenn. Ct. App.

Apr. 25, 2018) (quoting Valencia v. Freeland & Lemm Const. Co., 108 S.W.3d 239, 242

(Tenn. 2003)); see also Clawson v. Burrow, 250 S.W.3d 59, 62 (Tenn. Ct. App. 2007)

(“The exclusivity provision is triggered when an employee suffers an injury arising out of

and in the course and scope of employment.”). An injury occurs during the course and

scope of employment “if it takes place while the employee is performing a duty he or she

is employed to perform.” Foreman v. Automatic Sys., Inc., 272 S.W.3d 560, 571 (Tenn.

2008) (citing Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. 1993)). That is to say, the phrase

“course of employment” refers to the “time, place, and circumstances of the injury.”

Wilhelm v. Krogers, 235 S.W.3d 122, 127 (Tenn. 2007). An injury arises out of

employment “when there is a causal connection between the conditions under which the

work is required to be performed and the resulting injury.” Foreman, 272 S.W.3d at 571–

72 (citing Fritts v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005)). The

employee must have been injured “from a danger or hazard peculiar to the work or . . . by

a risk inherent in the nature of the work.” Foreman, 272 S.W.3d at 572 (citing Thornton

v. RCA Serv. Co., 221 S.W.2d 954, 955 (Tenn. 1949)). Consequently, we turn to determine

whether Upchurch alleged that he was injured out of and during the course and scope of

his employment with SCDE.

Upchurch alleges in his complaint that he developed multiple health issues from

exposure to mold at Sullivan North High School, which resulted in emergency room visits

in February and March 2018. He alleges that he first experienced “flu-like symptoms and

a rash covering [his] chest and armpits” in January 2018 while employed by SCDE as a

full-time vocational teacher. These symptoms appeared approximately a week after he

“was moved to an upstairs classroom which had been closed and unused since May 2017.”

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In February 2018, Upchurch alleges he discovered toxic black mold growing above the

drop ceiling in a nearby classroom after removing a ceiling tile. He says he notified SCDE

of these findings, but SCDE failed to remediate the problem. According to the complaint,

a mold testing laboratory in Greeneville, South Carolina confirmed that a physical sample

from the ceiling tile had medium levels of toxic black mold. Upchurch completed an

“Employee’s First Report of Work Injury or Illness” in late March 2018, in which he stated:

“I was moved to upstairs classroom with temp. of 80 degrees Fahrenheit and humidity of

67% on thermostat and Toxic Black Mold growing in ceiling above. I soon became ill and

was in and out of emergency room until I located a PCP.” Upchurch contend that in April

2018, a pulmonologist confirmed his mold allergy. He alleges that he accepted a contract

to return as a vocational instructor for the school year 2018-2019 “with the assurance by

the SCDE there was no Toxic Black Mold present per the SCDE testing.” However, he

claims that he was reassigned to “the moldiest room in the entire school” and that his health

deteriorated from the beginning of the school year, necessitating a third visit to the

emergency room in February 2019. He contends that a physical sample from a ceiling tile

collected during the new school year tested positive for medium levels of toxic black mold.

Taking the complaint’s allegations as true, as we must, we conclude that the injuries

alleged by Upchurch arose out of and during the course and scope of his employment with

SCDE. Upchurch alleges injuries that are causally connected to his exposure to toxic black

mold while performing the duties for which SCDE employed him. Therefore, the Workers’

Compensation Law provides the exclusive remedy for his injuries and precludes him from

seeking compensation under tort law. See Byrd, 2018 WL 1953206, at *4.

Although we have determined that Upchurch may not assert claims under tort law

for his work-related injuries, we address directly his claim for intentional infliction of

emotional distress. This Court has previously upheld the dismissal of this type of claim

pursuant to the exclusivity provision of the Workers’ Compensation Law. See, e.g., Byrd,

2018 WL 1953206, at *2–3; Federated Rural Elec. Ins. Exch. v. Hill, No. M2005-02461-

COA-R3CV, 2007 WL 907717, at *9 (Tenn. Ct. App. Mar. 26, 2007). In Byrd, an

employee alleged intentional infliction of emotional distress after experiencing “chest pain,

shortness of breath, anxiety, and other symptoms,” following a three-hour meeting with his

manager to discuss a possible violation of company policy. 2018 WL 1953206, at *1. This

Court affirmed the trial court’s grant of the employer’s motion to dismiss the claim under

‘“the exclusive remedy provision for workers’ compensation.’” Id. at *3 (citing the trial

court’s order dismissing the complaint). Here, Upchurch alleges that SCDE intentionally

and recklessly exposed him to toxic black mold, caused a school resource officer to follow

him the day he resigned from school, and engaged in a smear campaign to scandalize his

character, reputation, and standing in the community. He further alleges that these actions

put him in fear for his safety and freedom and caused him great mental distress, anxiety,

depression, a loss of enjoyment of life due to his sudden and unexpected change in

economic circumstances. These alleged actions are connected to his employment with

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SCDE both causally and in terms of time, place, and circumstance. They occurred almost

entirely on school grounds, during school hours, and—in any case—had their genesis in

the employment relationship. The alleged emotional distress arose out of and in the course

of his employment with and dismissal from SCDE. Dismissal of this tort claim is

appropriate under the exclusive remedy provision of the Workers’ Compensation Law.

II.

As the trial court noted, Tennessee courts have long recognized an exception to the

Workers’ Compensation Law’s exclusivity provision, which allows an employee to bring

a tort action under common law. See Valencia, 108 S.W.3d at 242 (citing Mize v. Conagra,

Inc., 734 S.W.2d 334 (Tenn. App. 1987); King v. Ross Coal Co., 684 S.W.2d 617 (Tenn.

App. 1984); Estate of Schultz v. Munford, Inc., 650 S.W.2d 37, 40 (Tenn. Ct. App. 1982);

Cooper v. Queen, 586 S.W.2d 830, 833 (Tenn. Ct. App. 1979)). This exception is narrow

and only applicable if a plaintiff-employee shows that “the employer had an actual intent

to injure the employee.” Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 46 (Tenn. Ct.

App. 1993) (citations omitted). “Proof of gross negligence or even criminal negligence is

not sufficient to establish the requisite and actual intent to injure that allows an employee

to maintain a common law action against his employer.” Id. (citations omitted). As our

Supreme Court has explained:

Plaintiff contends that public policy requires us to hold that when an

employer acts in a manner substantially certain to cause death or injury it acts

intentionally and such action falls within the intentional tort exception.

While the traditional definition of intent used in tort law denotes the

tortfeasor’s desire to cause the consequences of his or her actions or the belief

that the consequences are substantially certain to result from those actions,

that definition is not applicable in workers’ compensation cases. Rather, the

definition of actual intent is the actual intent to injure the employee.

Valencia, 108 S.W.3d at 243 (citations omitted). Further, this Court has made clear that

“knowingly permitting a hazardous work condition to exist . . . falls short of the kind of

actual intention to injure that robs the injury of accidental character.” Gonzales, 857

S.W.2d at 47 (citing King, 684 S.W.2d at 619).

Although Upchurch alleges that SCDE intentionally and recklessly failed to remedy

the mold infestation after notice by “knowingly permitting a hazardous work condition to

exist” on school grounds, the complaint is devoid of factual allegations that SCDE actually

intended to injure him. Moreover, the complaint alleges that water issues that “could

promote mold growth” were present for many years before Upchurch’s employment with

SCDE. Further, SCDE allowed Upchurch to relocate to the vocational shop at the start of

the 2018-2019 school year “due to the obvious presence of mold.” While we are

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sympathetic to Upchurch’s allegations of serious injury, we cannot infer actual intent to

injure under the circumstances. The narrow exception to the Workers’ Compensation

Law’s exclusivity provision is inapplicable in this case.

Having reviewed Upchurch’s claims as being true and making all reasonable

inferences in his favor, we agree with the trial court that the complaint fails to state a claim

for relief. Because the Workers’ Compensation Law is the exclusive remedy for the acts

alleged in the complaint, the issue concerning the applicability of the GTLA is pretermitted.

III.

The judgment of the Sullivan County Circuit Court is affirmed. Costs of this appeal

are taxed to the appellant, Michael Kevin Upchurch, for which execution may issue if

necessary.

_________________________________

KRISTI M. DAVIS, JUDGE

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