                                                                                           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
                     ___________________________________

                           No. M2018-01878-COA-R3-CV
                       ___________________________________

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.



                                                  -2-
       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


                                             -3-
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
                                           -4-
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,

                                          -5-
      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.




                                           -6-
                                     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 . . .)

                                                   -7-
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).



                                                 -8-
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.



                                            -9-
       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.



                                                - 10 -
              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.




                                          - 11 -
                      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.



                                                   - 12 -
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
                                              - 14 -
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.



                                                    - 18 -
                                 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.



                                             - 19 -
       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.



                                              - 23 -
