The Texas Prosecutor, May-June 2018

‘SLAPP’ back against frivolous suits from former employees

The public duties of county personnel now intersect with a relatively new statute in Texas: The Texas Citizens Participation Act, or TCPA. This statute was intended to protect citizens from abusive lawsuits when they address certain activities considered key to democracy, but lately, employers are using it to dismiss suits from former employees. The next time your office receives notification of such a lawsuit, TCPA may be a potential defense.
    The TCPA is an Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. As of January 2018, 28 states, including Texas, have such laws.1 Anti-SLAPP laws are designed to provide early dismissal of lawsuits filed against citizens for exercise of their First Amendment rights. In Texas, the TCPA was enacted in 2011, codified in Chapter 27 of the Texas Civil Practice and Remedies Code, and intended to preserve citizen participation in democracy and reduce the filing of frivolous lawsuits aimed at silencing citizens who are participating in the free exchange of ideas.2

Why we should care
The TCPA is a vehicle for dismissing lawsuits where a citizen or the media is sued for making statements concerning a matter of “public concern,”3 which is defined as an issue relating to:
1)    health or safety;
2)     environmental, economic, or community well-
    being;
3)     the government;
4)     a public official or public figure; or
5)     a good, product, or service in the marketplace.4
    The TCPA provides litigants with a mechanism for quickly dismissing these retaliatory lawsuits, staying discovery, and awarding these citizens attorney’s fees and costs upon dismissal of the suit.5 Additionally, if the trial court overrules the litigant’s motion to dismiss pursuant to TCPA, the litigant is entitled to an interlocutory appeal. Further, the court may award sanctions against the party who brought the legal action.
    The TCPA has been broadly and successfully used as a defense in a variety of cases not originally envisioned;6 most important to those of us in prosecutor offices is the trend of employers using the TCPA as a defense against lawsuits brought by former employees whose job duties fall into the category of a public concern.  

Recent developments
In ExxonMobil Pipeline Company v. Coleman, a former employee sued his employer and supervisors for defamation, civil conspiracy, and other torts alleging his supervisors made false statements to his employer about him.7 ExxonMobil moved for dismissal of the lawsuit asserting the TCPA as a defense. The case went to the Supreme Court of Texas, which held that the TCPA defense applied to the statements by the supervisor and investigator about the employee’s failure to record the volume of petroleum products and additives in the storage tanks as the risk of an oil spill is a matter of public concern. Specifically, the Court held the recording of the oil volume is a process completed “to reduce the potential environmental, health, safety, and economic risks associated with noxious and flammable chemicals overfilling and spilling onto the ground.”8 The Supreme Court further stated that communications made in connection with environmental, health, safety, and economic concerns fall under the TCPA.
    The Supreme Court overruled the finding by the Dallas Court of Appeals that the communications among the ExxonMobil employees “had only a tangential relationship to health, safety, environmental, and economic concerns” and related to “only a personnel matter,” as they were related to “job performance” and did not explicitly deal with health, safety, the environment, or Exxon’s economic interests.9 Indicating the TCPA’s broad applications, the Supreme Court stated, “the court of appeals improperly narrowed the scope of the TCPA by ignoring the Act’s plain language and inserting the requirement that communications involve more than a ‘tangential relationship’ to matter of public concern.”10
    Similarly, in two other employment law cases, plaintiffs in the healthcare field filed suit against their employers alleging that the employers made negative statements about the competency and skills of their employees.11 In one of these cases from the First Court of Appeals, Memorial Hermann Health System v. Khalil, the court stated:

“Whether a privately-employed person satisfactorily performs her job—while an important issue to the employer—is generally not a matter that would be considered a public concern for First Amendment purposes. But the TCPA defines ‘[m]atter of public concern’ to include issues related to ‘health or safety,’ and statements concerning a healthcare professional’s competence relate to matters of public concern under the TCPA.”12

    ExxonMobil and Memorial Hermann held that statements made by supervisors about their employees’ performance of duties transform personnel matters into matters of “public concern.” Consequently, these matters would be subject to similar dismissals in the event government employees filed suits based on statements made by their employers about them or their job performance.
    Governmental employees are not immune from litigation involving matters of public concern. In Brady v. Klentzman,13 the son of a chief deputy sheriff in Fort Bend County brought a libel action against a reporter and a newspaper for publishing an article detailing interactions between law enforcement and the deputy’s son. In a review of the multi-year defamation and libel proceedings from lower courts, the Supreme Court of Texas noted public matters include “commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions,” and further, that “the disclosure of misbehavior by public officials is a matter of public interest.”14 While the court was not specifically applying TCPA in the Brady v. Klentzman case, as the TCPA was enacted after the publication of the newspaper article, the Court held the conduct of a government employee—as well as his children—falls into the definition of a public concern.15 This decision has implications for government practitioners, especially in employment law contexts, because of the successful use of the TCPA as a defense by other employers whose employees also engage in duties which are of “public concern.”

What this means for civil practitioners
It is clear public employees are treated differently from private employees, but private employers’ ever-expanding use of the TCPA defense has implications for government employers who are sued by former employees. Almost every county employee’s duties may fall into the category of a “public concern,” including law enforcement officers, prosecutors, investigators, deputy district and county clerks, court coordinators, treasurers, and tax assessors. Also, the holding in Brady v. Klentzman that statements regarding the conduct of a deputy and his family fall into the definition of a “matter of public concern” may affect one’s analysis of employment-related issues with deputies and other law enforcement categories of employees.
    In light of this developing caselaw, governmental practitioners defending against employment suits should consider using the TCPA when responding to defamation, libel, or slander suits by former employees.16
    Procedurally, the TCPA framework permits a defendant or a litigant facing a countersuit to file a motion to dismiss pursuant to TCPA no later than the 60th day after the date of service of the legal action. Upon the motion’s filing, all discovery is suspended until the court has ruled on the motion. Generally, the court then has 60 days within which to hold a hearing. At the hearing, the party moving for dismissal under TCPA must show by a preponderance of the evidence the claim against it “is based on, relates to, or is in response to the defendant’s exercise of the right of free speech, the right to petition, or the right of association.”17 The TCPA defines the “exercise of the right of free speech,” as a “communication made in connection with a matter of public concern” and “public servant” includes “an officer, employee, or agent of government.”18
    After the defendant has met his burden, the burden shifts to the plaintiff to establish by clear and specific evidence a prima facie case for each essential element of the claim in question.19 According to the Texas Supreme Court, “even if the plaintiff satisfies the second step, the court will dismiss the action if the defendant establishes by a preponderance of the evidence each essential element of a valid defense” to the plaintiff’s claim.20

Conclusion
While TCPA will not be applicable to every case, the potential for its use as a defense to suit from former employees is a trend governmental practitioners should recognize and consider when they are analyzing new litigation filed against them.

Endnotes

1  These 28 states include Arizona, Arkansas, California, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Tennessee, Utah, Vermont, Washington, District of Columbia and Guam. The Media Law Resource Center, Anti-SLAPP Statutes and Commentary, http://www.medialaw.org/topics-page/anti-slapp (last visited Apr. 4, 2018). 

2  Id.; House Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011).

3  Tex. Civ. Prac. & Rem. Code §27.001(1) states that communication includes the making or submitting or a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.

4  Tex. Civ. Prac. & Rem. Code §27.001(7).

5  Tex. Civ. Prac. & Rem. Code §§27.001–27.011.

6  Watson v. Hardman, 497 S.W.3d 601, 603 (Tex. App.—Dallas 2016, no pet.) (defamation); Pena v. Perel, 417 S.W.3d 552 (Tex. App.—E l Paso 2013, no pet.) (slander and defamation); KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 686 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (defamation); Avila v. Larrea, 394 S.W.3d 646, 649 (Tex. App.—Dallas 2012, pet. denied) (defamation); Ramsey v. Lynch, No. 10-12-00198-CV, 2013 WL 1846886, at *1 (Tex. App.—Waco May 2, 2013, no pet.) (mem. op.) (defamation).

7  ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017).

8  Id. at 901.

9  ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841, 846 (Tex. App.—Dallas 2015), rev’d, 512 S.W.3d 895 (Tex. 2017).

10  ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017).

11  Mem’l Hermann Health Sys. V. Khalil, No. 01-16-00512-CV, 2017 WL 3389645, at *5 (Tex. App.—Houston [1st Dist.] Aug. 8, 2017, pet. denied) (anesthesiologist sued health care system for defamation, tortious interference with contract, conspiracy, intentional infliction of emotional distress, and age discrimination following corrective action employment plan and failure to recredential anesthesiologist); Lippincott v. Whisenhunt, 462 S.W. 3d 507 (Tex. 2015) (nurse anesthetist brought action against administers at medical facility for allegedly defamatory emails).

12  Mem’l Hermann Health Sys., 2017 WL 3389645, at *5 (internal citations omitted).

13  Brady v. Klentzman, 515 S.W.3d 878 (Tex. 2017), reh’g denied (June 2, 2017).

14  Id. at 884.

15  Id. at 885.

16  Watson v. Hardman, 497 S.W.3d 601, 603 (Tex. App.—Dallas 2016, no pet.) (defamation); Pena v. Perel, 417 S.W.3d 552 (Tex. App.—El Paso 2013, no pet.) (slander and defamation); KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 686 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (defamation); Avila v. Larrea, 394 S.W.3d 646, 649 (Tex. App.—Dallas 2012, pet. denied) (defamation); Ramsey v. Lynch, No. 10-12-00198-CV, 2013 WL 1846886, at *1 (Tex. App.—Waco May 2, 2013, no pet.) (mem. op.) (defamation).

17  Tex. Civ. Prac. & Rem. Code §27.005; ExxonMobil Pipeline Co., 512 S.W.3d at 898; In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015).

18  Tex. Civ. Prac. & Rem. Code §27.001.

19  Id. §27.005(c); ExxonMobil Pipeline Co., 512 S.W.3d at 899.

20 Id.