Melanie Lemon v. Williamson County Schools ( 2019 )


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  •                                                                                            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 -