Kylee Davis v. Uptown Male Spa & Skincare Center, LLC

10/29/2026 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE November 5, 2025 Session KYLEE DAVIS v. UPTOWN MALE SPA & SKINCARE CENTER, LLC ET AL. Appeal from the Circuit Court for Rutherford County No. 81731 Bonita Jo Atwood, Judge ___________________________________ No. M2024-01520-COA-R3-CV ___________________________________ An employee sued her former employer and former co-worker, claiming that her former employer violated the Tennessee Public Protection Act. The employee alleged that she was constructively discharged for failing to remain silent about the illegal activities of her former co-worker. The employee also claimed her former employer and former co-worker were liable for intentional infliction of emotional distress. The trial court dismissed both claims for failure to state a claim and awarded costs. We affirm the dismissal but vacate the award of costs. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part and Vacated in Part W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., C.J., and VALERIE L. SMITH, J., joined. Kerry Knox, Murfreesboro, Tennessee, and Stephen W. Grace, Nashville, Tennessee, for the appellant, Kylee W. Davis. Chase Fann, Nashville, Tennessee, for the appellees, Krystal Walker and Uptown Male Spa & Skincare Center, LLC. OPINION I. Kylie Davis worked as a state-licensed aesthetician for Uptown Male Spa & Skincare Center, LLC. Uptown’s owner, Krystal Walker, was also an aesthetician and Ms. Davis’s manager. According to a later filed complaint, Ms. Davis and her co-workers “suspected” that Ms. Walker had “special clients” who were receiving services beyond what an aesthetician normally provides. Ms. Davis noticed that Ms. Walker routinely took longer than necessary to perform services for male clients. Ms. Davis allegedly observed Ms. Walker engaging in sexual activities in the workplace with one of her clients. Ms. Davis believed the interaction violated Tennessee Code § 39-13-513 (2025), a statute criminalizing prostitution. So she reported what she saw to her coworkers. Ms. Walker allegedly instructed Ms. Davis and her co-workers to “remain silent about her illegal activity.” Two days after Ms. Davis’s observation, all of Uptown’s employees met with Ms. Walker to discuss her actions. Ms. Davis and her other co-workers then resigned. At an unspecified time, Ms. Davis also allegedly reported what she observed to the Tennessee licensing board. Ms. Davis sued Uptown and Ms. Walker. She asserted that Uptown violated the Tennessee Public Protection Act (“TPPA”) by constructively discharging her for refusing to remain silent about Ms. Walker’s activities. Ms. Davis also asserted intentional infliction of emotional distress by Uptown and Ms. Walker.1 Ms. Walker and Uptown moved to dismiss the complaint, arguing that Ms. Davis failed to state a claim for violation of the TPPA or intentional infliction of emotional distress. The trial court agreed, concluding that Ms. Davis “fail[ed] to plead non- conclusory allegations to support her claims against [Ms. Walker and Uptown].” So it dismissed her complaint with prejudice. The trial court also awarded Ms. Davis and Uptown litigation costs up to $10,000. II. On appeal, Ms. Davis argues that the trial court erred in dismissing her complaint for failure to state a claim upon which relief can be granted under Tennessee Rule of Civil Procedure 12.02(6). Although framed as a single issue, it presents two distinct issues for 1 Ms. Davis labels count two as a claim for outrageous conduct. But because “[o]utrageous conduct and intentional infliction of emotional distress are merely different names for the same action,” we utilize the latter name when referring to count two. Green v. Moore, No. M2000-03035-COA-R3-CV, 2001 WL 1660828, at *3 n.1 (Tenn. Ct. App. Dec. 28, 2001) (citing Bain v. Wells, 936 S.W.2d 618, 622 n.3 (Tenn. 1997)); accord Doe 1 ex rel. Doe 1 v. Roman Cath. Diocese of Nashville, 154 S.W.3d 22, 31 (Tenn. 2005) (clarifying that “[t]he tort of intentional infliction of emotional distress” is “also known as the tort of outrageous conduct”). 2 review: (1) whether the trial court erred in dismissing Ms. Davis’s TPPA claim, and (2) whether the trial court erred in dismissing Ms. Davis’s intentional infliction of emotion distress claim. A motion to dismiss for failure to state a claim upon which relief can be granted challenges the legal sufficiency of the allegations in the complaint, not the strength of the evidence. Ellithorpe v. Weismark, 479 S.W.3d 818, 824 (Tenn. 2015). To survive a motion to dismiss, a complaint “must contain sufficient factual allegations to articulate a claim for relief,” but detailed factual allegations are not required. Webb v. Nashville Area Habitat for Human., Inc., 346 S.W.3d 422, 427 (Tenn. 2011) (citation and quotation omitted). In resolving the motion, the trial court “must construe the complaint liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences.” Id. at 426 (quoting Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007)). But the court is not required to accept “assertions that are merely legal arguments or ‘legal conclusions’ couched as facts.” West v. Schofield, 468 S.W.3d 482, 489 (Tenn. 2015) (citation and quotation omitted). We review the trial court’s decision to grant a motion to dismiss de novo with no presumption of correctness. Ellithorpe, 479 S.W.3d at 824. A. The trial court dismissed Ms. Davis’s TPPA claim based on its conclusion that Ms. Davis “fail[ed] to plead factual allegations that . . . Uptown created a hostile work environment, took a retaliatory act against [Ms. Davis], or that [Ms. Davis’s] employment ended solely because of her refusing to remain silent to further a public policy (instead of a private interest) as required under the [TPPA].” But Ms. Davis insists that she sufficiently pleaded each element of a TPPA claim. The TPPA2 provides that “[n]o employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities.” Tenn. Code Ann. § 50-1-304(b) (2022). To prevail under the TPPA, a plaintiff must establish the following four elements: (1) the plaintiff was an employee of the defendant; (2) the plaintiff refused to participate in or remain silent about illegal activity; (3) the defendant employer discharged or terminated the plaintiff’s employment; and (4) the defendant terminated the plaintiff’s employment solely for the 2 The TPPA is sometimes referred to as the “Whistle Blower Act.” See Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 26 (Tenn. 2011). 3  plaintiff’s refusal to participate in or remain silent about the illegal activity. Williams v. City of Burns, 465 S.W.3d 96, 111 (Tenn. 2015) (quoting Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 26-27 (Tenn. 2011)). Ms. Davis alleges she was employed by Uptown, which sufficiently establishes the first element of her TPPA claim. So our focus is on whether Ms. Davis alleged sufficient facts in her complaint to establish the remaining three elements. The second element of a TPPA claim requires a plaintiff to show either (1) that she refused to participate in the illegal activity or (2) that she refused to remain silent about the illegal activity. Williams, 465 S.W.3d at 111. Ms. Davis asserts the latter applies—that she refused to remain silent. When relying on the latter approach, “an employee must establish that he or she reported the employer’s illegal activity and that the reporting of the illegal activity furthered a clear public policy.” Haynes v. Formac Stables, Inc., 463 S.W.3d 34, 37 (Tenn. 2015) (emphasis added) (internal citation and quotation omitted). Here, Ms. Davis’s complaint alleges that she made reports to (1) Ms. Walker, (2) the Tennessee licensing board, and (3) her co-workers. We can quickly dispense with the report to Ms. Walker. It falls short of what the law requires. Reporting the illegal conduct to the “person responsible, even when that person is the manager, owner, or highest authority within the company,” does not meet the reporting requirement imposed by element two, because the “employee necessarily fails to ‘blow the whistle’ in a meaningful fashion because the employee has made no effort[ ] to bring to light an illegal or unsafe practice.” Id. at 40 (alteration in original) (internal citations and quotations omitted). That leaves the reports to the licensing board and Ms. Davis’s co-workers. With respect to the report to the licensing board, the complaint omits any detail concerning its timing. But the allegations in the complaint, and the order in which they appear, strongly suggest that this report came after Ms. Davis resigned. This poses a problem, because the remaining elements of a TPPA claim require the report to have occurred before termination. As for Ms. Davis’s report to her co-workers, the Tennessee Supreme Court has declined to address “whether disclosures to co-workers about a superior’s illegal activities are protected under the TPPA.” Williams, 465 S.W.3d at 117 n.25. But even assuming Ms. Davis’s report to the licensing board preceded her resignation and/or that the report to her co-workers qualifies as protected activity—either of which would be sufficient to establish element two—we conclude her allegations fail to establish elements three and four of her TPPA claim. Together, elements three and four require a retaliatory discharge. More specifically, they require a plaintiff to establish that she was terminated solely for refusing to participate in or remain silent about illegal activity. Id. at 111. Ms. Davis does not claim she was terminated in the ordinary sense; she resigned. Instead she claims constructive termination. 4 To establish constructive termination, a plaintiff must show that “an employer permits a hostile working environment to render an employee’s working conditions so intolerable that resignation is the employee’s only reasonable alternative.” Frye v. St. Thomas Health Servs., 227 S.W.3d 595, 612 (Tenn. Ct. App. 2007); accord Lemon v. Williamson Cnty. Schs., 618 S.W.3d 1, 14 (Tenn. 2021) (“To prove constructive discharge, the plaintiff employee must show that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” (internal citations and quotations omitted)). Here, both sides agree—and at least one case appears to suggest—constructive discharge can support a TPPA claim. See Thomas v. Metro. Gov’t of Nashville & Davidson Cnty., No. M2025-00288-COA-R3-CV, 2026 WL 1469431, at *5 (Tenn. Ct. App. May 26, 2026) (suggesting that constructive discharge can be used to form the predicate of a TPPA claim). Assuming, without deciding, that the doctrine of constructive discharge is compatible with the TPPA, Ms. Davis’s claim still fails. Under a constructive-termination theory, elements three and four of a TPPA claim necessarily require a plaintiff to establish that the hostile work environment was created solely in response to the employee’s protected conduct of reporting illegal activity. Two things, Ms. Davis claims, made her work environment hostile: (1) Ms. Walker allegedly engaging in sexual activity, putting Ms. Davis’s license at risk, and (2) Ms. Walker’s instruction to both Ms. Davis and her co-workers to remain silent. But neither suffice. We can quickly dispense with the notion that Ms. Walker engaged in the illegal conduct in response to Ms. Davis’s reports. Per the complaint, Ms. Walker’s activity came first, then Ms. Davis’s reports of the activity. That leaves Ms. Walker’s request not to report, which fails both elements three and four. Element three requires a discharge or termination, which Ms. Davis hopes to establish by proving a constructive termination. But Ms. Walker’s single, isolated request is not enough to establish a hostile work environment. See Frye, 227 S.W.3d at 612 (“[A] constructive discharge arises when an employer permits a hostile working environment to render an employee’s working conditions so intolerable that resignation is the employee’s only reasonable alternative.”). A reasonable person would not have felt compelled to resign based on one conversation involving a request not to report. See Bazemore v. Performance Food Grp., Inc., 478 S.W.3d 628, 636 (Tenn. Ct. App. 2015) (concluding that the conditions creating the alleged intolerable work environment “must have been severe or pervasive in nature, and not simply an isolated incident.” (citation omitted)). Moreover, element four requires Ms. Davis to establish that Ms. Walker’s request not to report was made solely in response to Ms. Davis having reported the illegal activity. But the request itself asks Ms. Davis to remain silent, indicating it was not a reaction to any report but rather an attempt to prevent one. 5  B. With respect to Ms. Davis’s intentional infliction of emotional distress claim, it too was properly dismissed. A plaintiff claiming intentional infliction of emotional distress must prove 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.” Lemon, 618 S.W.3d at 21 (quoting Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012)). “The outrageous conduct requirement is a high standard which has consistently been regarded as a significant limitation on recovery.” Doe 1 ex rel. Doe 1 v. Roman Cath. Diocese of Nashville, 154 S.W.3d 22, 39 (Tenn. 2005); accord Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn. 1999) (“This is an exacting standard requiring the plaintiff to show that the defendant’s conduct is ‘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.’” (quoting Restatement (Second) of Torts § 46 cmt. d (1965))). When evaluating whether conduct is sufficiently outrageous to meet element two’s exacting standard, “the test often used by our courts is the one found in the Restatement (Second) of Torts § 46 comment d (1964).” Odom v. Claiborne Cnty., 498 S.W.3d 882, 887 (Tenn. Ct. App. 2016) (quoting Alexander v. Inman, 825 S.W.2d 102, 105 (Tenn. Ct. App. 1991)). In relevant part, comment d states, liability is “found only where the conduct has been 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.” Restatement (Second) of Torts § 46 cmt. d (1965). Comment d clarifies that “[i]t has not been enough that the defendant has acted with an intent which is tortious or even criminal.” Id. (emphasis added); accord Braswell v. Carothers, 863 S.W.2d 722, 727 (Tenn. Ct. App. 1993) (“Although these acts, if true, would certainly be tortious or even criminal, they are not founded on conduct characterized as ‘outrageous.’” (citation omitted)). The Tennessee Supreme Court has emphasized that “[i]t is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so.” Lemon, 618 S.W.3d at 21 (alteration in original) (quoting Restatement (Second) of Torts § 46 cmt. h) (citing Brown v. Mapco Exp., Inc., 393 S.W.3d 696, 704 (Tenn. Ct. App. 2012)). Courts have found it appropriate to dismiss intentional infliction of emotional distress claims at the motion-to-dismiss phase when the alleged conduct “do[es] not rise to the level of outrageous conduct required for intentional infliction of emotional distress.” Id. at 22; accord Odom, 498 S.W.3d at 887 (affirming dismissal of the plaintiff’s intentional infliction of emotional distress claim at the motion-to-dismiss phase for failing to “rise to the high standard of outrageousness necessary to sustain a claim for intentional infliction of emotional distress.”); Lane v. Becker, 334 S.W.3d 756, 763 (Tenn. Ct. App. 2010) (affirming the trial court’s dismissal of the plaintiff’s intentional infliction of 6 emotional distress claim at the motion-to-dismiss phase, concluding that “the conduct did not rise to the level of ‘outrageous conduct’; the conduct must be atrocious.”); Pagliara v. Moses, 605 S.W.3d 619, 629 (Tenn. Ct. App. 2020) (affirming the trial court’s dismissal of the plaintiff’s intentional infliction of emotional distress claim at the motion-to-dismiss phase, concluding that the defendant’s conduct was “not so outrageous, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (internal citation and quotation omitted)). Here, the conduct Ms. Davis relies on to support her intentional infliction of emotional distress claim includes Ms. Walker surreptitiously engaging in illegal conduct and directing her coworkers to remain silent about it. While these alleged acts were certainly inappropriate and potentially even criminal, they do not “rise to the high standard of outrageousness necessary to sustain a claim for intentional infliction of emotional distress.” Odom, 498 S.W.3d at 887. III. Uptown and Ms. Walker raise two issues of their own on appeal. First, they ask us to affirm the trial court’s award of costs under Tennessee Code § 20-12-119 (2021). Second, they seek an award of appellate attorney’s fees claiming this appeal was frivolous. Tennessee Code § 20-12-119 provides for an award of costs “where a trial court grants a motion to dismiss pursuant to Rule 12 of the Tennessee Rules of Civil Procedure for failure to state a claim upon which relief may be granted.” Id. at § 20-12-119(c)(1). But the statutory language makes clear that “[a]n award of costs pursuant to this subsection (c) shall be made only after all appeals of the issue of the granting of the motion to dismiss have been exhausted and if the final outcome is the granting of the motion to dismiss,” and that any award “shall be stayed until a final decision which is not subject to appeal is rendered.” Id. at § 20-12-119(c)(3). Here, relying on Tennessee Code § 20-12-119, the trial court awarded costs before resolution of the appellate process. In at least two previous cases, this Court has affirmed premature awards of attorney’s fees under Tennessee Cose § 20-12-119. See Schodowski v. Tellico Vill. Prop. Owners Ass’n, Inc., No. E2015-01145-COA-R3-CV, 2016 WL 1627895, at *9 n.4. (Tenn. Ct. App. Apr. 22, 2016) (acknowledging that the award of costs was premature in light of the plain language of the statute, but “find[ing] that the trial court’s act of prematurely awarding attorney’s fees before exhaustion of the right to appeal was harmless error,” having found that the motion to dismiss was properly granted); Horst v. Gaar, No. W2023-00442-COA-R3-CV, 2024 WL 4972013, at *12 (Tenn. Ct. App. Dec. 4, 2024) (concluding that “the trial court’s act of prematurely awarding attorney’s fees before exhaustion of the right to appeal was harmless error,” in light of its decision to uphold the Rule 12 dismissal and of the appellant’s failure to challenge the issue (quoting Schodowski, 2016 WL 1627895, at *9 n.4.)). We decline to do so in this instance. 7 Although this may be harmless error, the statute dictates that “[a]n award of costs pursuant to this subsection (c) shall be made only after all appeals of the issue of the granting of the motion to dismiss have been exhausted.”3 Tenn. Code Ann. § 20-12-119(c)(3). Next, Uptown and Ms. Walker request an award of appellate attorney’s fees and expenses claiming this appeal was frivolous. See Tenn. Code Ann. § 27-1-122 (2017) (authorizing an award of damages against an appellant if an appeal appears to be “frivolous or taken solely for delay”). A frivolous appeal is “utterly devoid of merit,” Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978), or lacks a “reasonable chance of success,” Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977). Because this appeal was unsuccessful, not frivolous, we decline to award attorney’s fees on that basis. IV. We affirm the trial court’s dismissal of the complaint. The award of costs under Tennessee Code § 20-12-119 is vacated. The case is remanded for further proceedings as may be necessary and consistent with this opinion, including an award of costs under Tennessee Code § 20-12-119(c) after all appeals have been exhausted. s/ W. Neal McBrayer W. NEAL MCBRAYER, JUDGE 3 Ms. Davis could seek further review of our decision, so the appellate process may not be complete. 8