Texas Supreme Court Gives Employers New Tool to Slap Down Defamation Claims
When a company does an investigation, it needs honest answers from its
supervisors. But how does that happen if the supervisors are worried about
being sued for defamation by the employees involved? Travis Coleman, for
example, was fired by Exxon for failing to gauge storage tanks at a facility
where he worked as a terminal technician. Coleman then sued Exxon and his
supervisors, alleging that he had been defamed by statements made by the
supervisors to the company’s safety investigators.
The defendants moved to dismiss Coleman’s claims under the Texas
anti-SLAPP statute, the Texas Citizens’ Participation Act (“TCPA”), Tex. Civ.
Prac. & Rem. Code § 27.001 et seq.
The TCPA, which applies to any claim that “is based on, relates to, or is in
response to” a defendant’s exercise of the right to free speech, the right to
petition, or the right of association. The TCPA defines the “exercise of the
right of free speech” to include any statement made in connection with any of
several enumerated “matters of public concern,” such as “health or safety [or] environmental,
economic, or community well-being.” If the TCPA applies, the court must dismiss
the claim unless the plaintiff submits “clear and specific” evidence to support
each element of it.
The trial court denied the defendants’ motion to dismiss. The Dallas
Court of Appeals affirmed, disagreeing with the defendants that the supervisors’
communications with the safety inspectors related to matters of health, safety,
and environmental well-being. Instead, the Dallas Court of Appeals
characterized the communications as relating primarily to Coleman’s failure to
perform a mandatory requirement of his job.
The Texas Supreme Court disagreed, finding that communications need bear
only a “tangential relationship” to a statutorily defined “matter of public concern”
in order to be protected under the TCPA. ExxonMobil
Pipeline Co. v. Coleman, No. 15-0407 (Tex. Feb. 24, 2017). The Supreme
Court also reaffirmed its 2015 holding in Lippincott
v. Whisenhunt that TCPA-protected communications need not be made in a public
forum. Private or intra-corporate communications are equally protected under
The Texas Supreme Court’s holding supports a broad application of the
TCPA to numerous types of statements commonly seen in the employment defamation
context, particularly where a company’s operations relate in any way to
regulated areas such as health, safety, the environment, or economic and
The Texas Supreme Court also left open the possibility that such
communications could be protected under the “right of association,” which the
TCPA broadly defines as any “communication between individuals who join
together to collectively express, promote, pursue, or defend common interests.”
The Dallas Court of Appeals had noted that a plain-language interpretation of
the term would subject essentially any private communication to the TCPA — a
result it described as “absurd.” But the Texas Supreme Court pointedly declined
to reach the “right of association” issue in light of its “right of free speech”
holding. The Court’s silence on this issue, combined with its repeated embrace
of a plain-language approach to interpreting the TCPA, gives employers a strong
argument that an already-broad statute may be applied even more broadly.