A judge Monday morning dismissed a $21 million lawsuit against Sullivan County Schools alleging adverse reactions to toxic black mold or Stachybotrys chartarum at Sullivan North High/Middle School, ruling the only valid remedy of the former employee who filed the suit was a worker's compensation claim.
Former North High career technical teacher Michael Upchurch filed the lawsuit. Circuit Court Judge John McLellan made the ruling. Sullivan County Attorney Dan Street represented the county, while attorney Kyle Vaughn represented Upchurch. The schools are located in the same building.
“I argued that since he was an employee, he was limited to remedies under the worker’s compensation statutes in Tennessee,” Street said Monday afternoon. “The judge agreed.”
Vaughn could not be reached for comment. The lawsuit, filed Feb. 19, sought $21 million, comprised of $3 million in compensatory damages and $18 million in punitive damages. Because of the grounds for dismissal, the ruling did not consider the merits of the claim, although Upchurch said his attorney unsuccessfully sought to begin the discovery process to get at the meat of the suit’s claims.
WHAT DOES UPCHURCH SAY?
“I wrestled all I could, but you can’t wrestle with the government,” Upchurch said. “It’s just sad that our government has gone to complete control” of what lawsuits can seek.
The suit named the Sullivan County Department of Education, current and former North Principals Josh Davis and Brent Palmer, Director of Schools Evelyn Rafalowski and Maintenance Supervisor Charlie Hubbard.
Tests done Feb. 18 found no black mold in four rooms at North where Wingfield Environmental tests the week before found nine mold spores, Rafalowski has said. Remediation was done in the four classrooms, which included the North band room where one spore was detected. Wingfield also conducted recent airborne mold tests at Indian Springs Elementary after mold concerns there, but no airborne spores turned up there.
Upchurch said Feb. 19 he hoped the lawsuit would let the public see “about this cover-up” of what he called a longtime issue at North, but he said he is not sure now whether he can seek worker’s comp.
“You can’t remediate mold until you fix that leaky roof,” Upchurch said Feb. 19 of long-term leaks in the building since it opened in the fall of 1980. “The truth will come out.”
“My lawyer’s looking into it, but it doesn’t look good,” Upchurch said Monday afternoon of seeking worker’s comp. “I just wanted the truth to come out and see how the school board has slacked” in building maintenance.
He said the county has had his documentation of mold in the building for a year and said Wingfield “suppressed half of his report from my attorney last year in my worker’s comp claim.”
Upchurch said he was out sick much of last school year but returned this school year, only to have symptoms reoccur. He resigned in early February, the week before filing the lawsuit, after talking with Rafalowski. Street confirmed that Upchurch has never received worker’s compensation from the original claim, made before he returned to work in 2018.
Upchurch said he turned down a $2,500 worker’s comp offer last year because it wasn’t enough and wouldn’t come near covering his health care expenses and doesn’t know if he’ll be able to file a new claim. He said he’s faced with paying five years of allergy treatments to be paid out of his own pocket.