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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 statute.

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 community well-being.

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.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.