Debra Laverie, ph.D. v. James Wetherbe, ph.D. ( 2016 )

IN THE SUPREME COURT OF TEXAS
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NO . 15-0217
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DEBRA LAVERIE , PH.D., PETITIONER,
v.
JAMES WETHERBE, PH.D., RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS
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Argued September 14, 2016
JUSTICE BROWN delivered the opinion of the Court.
A Texas Tech professor and associate dean, James Wetherbe, sued a colleague, Debra
Laverie, for defamation after he was passed over for promotion. Laverie moved for summary
judgment, arguing Wetherbe must name Texas Tech as a defendant and dismiss her from the suit.
The trial court denied that motion and the court of appeals affirmed on the ground that Laverie failed
to offer evidence she was not furthering her own purposes, rather than her employer’s, when she
made the allegedly defamatory statements. We disagree. Laverie was entitled to dismissal when she
furnished conclusive evidence she was acting within the scope of her employment; she need not have
offered evidence of her motives for making the allegedly defamatory statements. Accordingly, we
reverse the court of appeals and render judgment dismissing Laverie from Wetherbe’s suit.
I
In the fall of 2011 a search was underway to select a new dean of the Rawls College of
Business Administration at Texas Tech University. Texas Tech’s provost, Bob Smith, formed a
search committee to which he appointed both Wetherbe and Laverie, the business school’s senior
associate dean. Wetherbe later withdrew from the committee to seek the deanship himself.
Smith testified that, as senior associate dean, Laverie oversaw faculty recruiting and hiring;
she was effectively running the business school because the outgoing dean was ill. Accordingly,
Smith said he “relied on [her] to provide updates from the college and first-hand insights into the
ongoing search.” Sometime after Wetherbe withdrew from the search committee, Smith asked
Laverie about the faculty’s perspective on the search process. Laverie reported that “it was her sense
that the faculty considered Wetherbe to be a ‘singular’ candidate.” Smith said he interpreted
Laverie’s report to mean that “some faculty thought Wetherbe had the search ‘wired,’ or that by
entering the race he was the presumptive front-runner.”
Smith then contacted Bob Lawless, a former Texas Tech president who was managing the
search for the university, to confirm that all prospective candidates understood the search was fair
and open to all. According to Smith, Lawless told him an external candidate had expressed concerns
over rumors of a strong, internal candidate. This prompted Smith to send an e-mail to the entire
college faculty and the search committee “assuring them that the search was indeed open and that
there was no strong favorite for the position.”
Sometime during the search, Laverie separately informed Smith that a staff member reported
that Wetherbe was using “some kind of listening device or other to eavesdrop on people’s
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conversations in the Rawls College.” Smith said he considered it “only a hearsay report” and denied
it played any role in his decision to send the e-mail regarding the search or his ultimate decision on
Wetherbe’s candidacy.
The search concluded in spring 2012. Nine candidates, including Wetherbe, were interviewed
off campus. The committee then selected Wetherbe as one of four finalists for on-campus interviews.
Smith, however, declined to further interview Wetherbe because he was “unimpressed with his
performance in the first interview” and “strenuously disagreed with his leadership philosophy and
was discouraged by his lack of vision” for the business school.
During the search, Wetherbe was also nominated to be a Horn Professor, a mark of
distinction at Texas Tech. Although the Horn Professor selection committee had recommended
approval of his nomination, Smith withdrew his support after discovering Wetherbe was not tenured,
which he believed was a prerequisite for a Horn professorship. After informing the committee that
Wetherbe was not tenured, Smith testified that “approximately 19 out of 20 that responded
confirmed their agreement that Wetherbe could not be a Horn Professor without being a tenured
faculty member.”
Having been passed over for both the dean opening and a Horn professorship, Wetherbe sued
for defamation. He claims Laverie’s statements to Smith about his perceived front-runner status and
his supposed use of a “listening device” torpedoed his chances for promotion. Wetherbe theorizes
that Laverie fabricated the stories to sabotage him; Smith, however, maintains that while he relied
on Laverie “to provide information and counsel about the business school,” she “did not cause, nor
otherwise motivate, me to make any of the decisions I made in regard to [Wetherbe].”
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Laverie filed a traditional motion for summary judgment arguing the Tort Claims Act
required Wetherbe to name Texas Tech as a defendant and dismiss her from the lawsuit. Wetherbe
argued in response that Laverie was not entitled to dismissal because she did not act in the scope of
her employment when she defamed him. The trial court denied Laverie’s motion and she appealed.
The court of appeals affirmed, concluding that although Wetherbe “acknowledges that speaking with
the University’s provost about occurrences at the Rawls College may fall within Laverie’s duties for
the University,” the record nonetheless did not “conclusively establish that, on the occasion of their
conversation regarding Wetherbe, she was serving any purpose of her employer, as opposed to
furthering her own purposes only.” No. 07-13-00348-CV, 2015 WL 739670, at *4 (Tex.
App.—Amarillo Feb. 20, 2015) (mem. op.). Specifically, the court of appeals noted the record
“contains no direct evidence of Laverie’s intentions when she spoke with Smith about Wetherbe
before Smith sent his email, and does not conclusively establish the nature of her motivation in doing
so, either as to the dean search or as to the report of Wetherbe’s use of a listening device.” Id. We
granted review.
II
A
We review de novo a trial court’s denial of a traditional motion for summary judgment.
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The Tort Claims Act
provides a limited waiver of governmental immunity, see TEX . CIV . PRAC. & REM . CODE § 101.023,
and contains an election-of-remedies provision intended to “force a plaintiff to decide at the outset
whether an employee acted independently and is thus solely liable, or acted within the general scope
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of his or her employment such that the governmental unit is vicariously liable.” Mission Consol.
Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008) (interpreting TEX . CIV . PRAC. & REM .
CODE § 101.106). Laverie argues she should be dismissed from Wetherbe’s suit because the election-
of-remedies provision compels “the expedient dismissal of governmental employees when suit
should have been brought against the government.” See Tex. Adjutant General’s Office v. Ngakoue,
408 S.W.3d 350, 355 (Tex. 2013). “The Legislature mandates this determination in order to ‘reduc[e]
the resources that the government and its employees must use in defending redundant litigation and
alternative theories of recovery.’” Alexander v. Walker, 435 S.W.3d 789, 790 (Tex. 2014) (per
curiam) (quoting Garcia, 253 S.W.3d at 653). The election-of-remedies provision provides:
If a suit is filed against an employee of a governmental unit based on conduct within
the general scope of that employee’s employment and if it could have been brought
under this chapter against the governmental unit, the suit is considered to be against
the employee in the employee’s official capacity only. On the employee’s motion, the
suit against the employee shall be dismissed unless the plaintiff files amended
pleadings dismissing the employee and naming the governmental unit as defendant
on or before the 30th day after the date the motion is filed.
TEX . CIV . PRAC. & REM . CODE § 101.106(f).
More succinctly, a defendant is entitled to dismissal upon proof that the plaintiff’s suit is (1)
based on conduct within the scope of the defendant’s employment with a governmental unit and (2)
could have been brought against the governmental unit under the Tort Claims Act. See Franka v.
Velasquez, 332 S.W.3d 367, 369 (Tex. 2011); Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex.
App.—Houston [1st Dist.] 2011, no pet.). “Scope of employment” is further defined as “the
performance for a governmental unit of the duties of an employee’s office or employment and
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includes being in or about the performance of a task lawfully assigned to an employee by competent
authority.” TEX . CIV . PRAC. & REM . CODE § 101.001(5).
B
Wetherbe does not dispute Laverie is a government employee or that Wetherbe’s defamation
claim could have been brought against Texas Tech under the Tort Claims Act. The only issue is
whether Laverie acted within the scope of her employment when she made the allegedly defamatory
statements. Wetherbe seems to concede Laverie possibly acted within the scope of her
employment—he simply argues we cannot know with certainty unless we know why she said what
she said. He therefore agrees with the court of appeals that the dismissal standard requires Laverie
to furnish conclusive evidence she was “serving any purpose of her employer, as opposed to
furthering her own purposes only.” 2015 WL 739670, at *4.
Nothing in the election-of-remedies provision or the statutory definition of “scope of
employment” suggests subjective intent is a necessary component of the scope-of-employment
analysis. Rather, the Tort Claims Act focuses on “performance . . . of the duties of an employee’s
office or employment,” which calls for an objective assessment of whether the employee was doing
her job when she committed an alleged tort, not her state of mind when she was doing it. TEX . CIV .
PRAC. & REM . CODE § 101.001(5). Moreover, Wetherbe’s view departs from our traditional scope-
of-employment analysis in respondeat superior cases, which concerns only whether the employee
is “discharging the duties generally assigned to her.” City of Lancaster v. Chambers, 883 S.W.2d
650, 658 (Tex. 1994); see also Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex.
2007) (“The employee’s acts must be of the same general nature as the conduct authorized or
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incidental to the conduct authorized to be within the scope of employment.”). We presume the
Legislature knew of our longstanding approach to the scope-of-employment analysis and see nothing
in the Tort Claims Act compelling a different approach. See Dugger v. Arredondo, 408 S.W.3d 825,
835 (Tex. 2013) (“[W]e presume the Legislature enacts a statute with knowledge of existing law.”).
The scope-of-employment analysis, therefore, remains fundamentally objective: Is there a
connection between the employee’s job duties and the alleged tortious conduct? The answer may be
yes even if the employee performs negligently or is motivated by ulterior motives or personal animus
so long as the conduct itself was pursuant to her job responsibilities. See, e.g., Galveston, H. & S.
A. Ry. Co. v. Currie, 96 S.W. 1073, 1074 (Tex. 1906) (“It is now settled, in this state at least, that
the presence of such a motive or purpose in the servant’s mind does not affect the master’s liability,
where that which the servant does is in the line of his duty, and in the prosecution of the master’s
work.”). We find no case law from our courts of appeals supporting the position Wetherbe and the
court of appeals advance in this case. Cf. Melton v. Farrow, No. 03-13-00542-CV, 2015 WL 681491,
at *3 (Tex. App.—Austin Feb. 10, 2015, pet. denied) (“Texas appellate courts have consistently held
that acts may still be within the scope of the employee’s duties even if the specific conduct that
forms the basis of the suit was wrongly or negligently performed or driven by personal animus.”);
Anderson, 365 S.W.3d at 125–26 (“So long as it falls within the duties assigned, an employee’s
conduct is within the scope of employment, even if done in part to serve the purposes of the
employee or a third person.”) (internal quotation marks omitted). Given the uniformity of our case
law and the lack of any mention of subjective intent in the election-of-remedies provision, we see
no reason for such a drastic departure from our longstanding approach to respondeat superior cases.
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C
The court of appeals held otherwise, relying largely on our reference to the Restatement
(Third) of Agency in Alexander v. Walker. See 2015 WL 739670, at *3. There, we acknowledged
the Restatement’s assessment that “[a]n employee’s act is not within the scope of employment when
it occurs within an independent course of conduct not intended by the employee to serve any purpose
of the employer.” 435 S.W.3d at 792 (quoting RESTATEMENT (THIRD ) OF AGENCY § 7.07(2) (2006))
(emphasis added). From this, the court of appeals concluded Laverie was required to conclusively
establish “she was serving any purpose of her employer, as opposed to furthering her own purposes
only.” 2015 WL 739670, at *4.
Alexander itself disproves any suggestion we endorsed this view. Despite our citation of
section 7.07(2), we never demanded evidence of the defendants’ subjective intent in holding they
were entitled to dismissal. See Alexander, 435 S.W.3d at 792. Nor do we perceive any inconsistency
between the Restatement’s articulation of the scope-of-employment analysis and our established case
law. Section 7.07(2) begins by stating that “[a]n employee acts within the scope of employment
when performing work assigned by the employer or engaging in a course of conduct subject to the
employer’s control.” RESTATEMENT (THIRD ) OF AGENCY § 7.07(2) (2006). It then posits a negative
definition of scope of employment: an act “is not within the scope of employment when it occurs
within an independent course of conduct not intended by the employee to serve any purpose of the
employer.” Id. We believe the Restatement’s references to intent and purpose simply reflect that an
employee whose conduct is unrelated to his job, and therefore objectively outside the scope of his
employment, is engaging in that conduct for his own reasons. And in cases in which the employee
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assumes an independent course of conduct, it is no surprise that courts might mention his reasons
for doing so. See, e.g., Tex. & P. Ry. Co. v. Hagenloh, 247 S.W.2d 236, 241 (Tex. 1952) (“[T]he
evidence conclusively showed that the employee in making the assault was actuated by personal
animosity and that there was no close relation between the assault and the performance of the duties
of the employment.”). This is not tantamount to a threshold requirement that government-employee
defendants conclusively prove their subjective intent to establish they acted in the scope of their
employment. Nor does the second sentence of section 7.07(2), by clarifying what is not within the
scope of employment, impose on government employees the burden to conclusively satisfy a
negative definition.
Wetherbe further argues our holding in Minyard Food Stores, Inc. v. Goodman turned on an
evaluation of the employee’s subjective intent. See 80 S.W.3d 573 (Tex. 2002). Minyard involved
allegedly defamatory statements a grocery-store manager made against a co-worker during an
investigation of an alleged workplace affair. Id. at 574–75. Specifically, the plaintiff, a Minyard
employee, alleged that a store manager defamed her when he falsely claimed to have kissed and
hugged her. Id. at 575. We noted that although his employer compelled his participation in the
investigation, defamatory statements made in the course of the investigation could not “further [the
employer’s] business and accomplish a purpose of [the manager’s] job.” Id. at 579. We distinguished
the facts in Minyard from cases in which other courts concluded allegedly defamatory statements
were within the scope of employment by articulating “a critical distinction between defaming
someone to one’s employer and defaming someone for one’s employer.” Id. (citing examples). From
this, Wetherbe gleans an evaluation of the manager’s subjective intent. Yet we held the manager’s
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statements fell outside the scope of employment because they did not “further [the store’s] business
and accomplish a purpose of [the manager’s] job.” Id. In other words, the manager’s admissions to
“kissing and hugging” a co-worker were not in furtherance of his responsibilities in running a
grocery store. The “critical distinction” we acknowledged did not invite a subjective-intent
assessment, but rather clarified the grounds under which defamation might be fairly considered to
be in the objective scope of employment.
D
Aside from lacking support in our case law, Wetherbe’s approach presents a number of issues
rendering it inconsistent with the election-of-remedies provision. “In waiving governmental
immunity, the Legislature correspondingly sought to discourage or prevent recovery against an
employee.” See Franka, 332 S.W.3d at 384. In that vein, the election-of-remedies provision “favors
the expedient dismissal of governmental employees when suit should have been brought against the
government,” Ngakoue, 408 S.W.3d at 355, and “reduc[es] the resources that the government and
its employees must use in defending redundant litigation and alternative theories of recovery.”
Garcia, 253 S.W.3d at 657. Yet requiring proof of an employee’s subjective intent would burden
government employees with proving a negative to attain dismissal; that is, that they acted without
ulterior motives or animus. See State Farm Mut. Auto. Ins. Co. v. Matlock, 462 S.W.2d 277, 278
(Tex. 1970) (discussing the “difficulty in proving a negative”). Moreover, requiring proof of
subjective intent invites partial litigation of the underlying defamation claim itself, as questions of
whether the statement was true or false, and whether Laverie knew it was truth or false, will
inevitably spring forth when considering why she said it. The function of the election-of-remedies
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provision, however, is not to adjudicate the underlying tort claim but to quickly dismiss government
employees when the suit should be brought against their employer. See Ngakoue, 408 S.W.3d at 355.
Finally, requiring government employees to produce conclusive evidence of their subjective
intent mandates evidence that is often irrelevant to the ultimate question of whether the alleged tort
was committed within the scope of employment. Laverie’s personal motivations, if she had any,
ultimately do not change her job responsibilities and whether the statement was in performance of
them. See Melton, 2015 WL 681491, at *3; Anderson, 365 S.W.3d at 125–26. An employee will of
course sometimes have personal motives for performing her job a particular way, and a statement
made or an act done may simultaneously fulfill a job responsibility while furthering an ulterior
motive. The line between the professional and personal is sometimes difficult to discern, as people
typically do not carefully or consciously delineate between the two. The fundamental inquiry
therefore is not whether Laverie did her job well or poorly, or whether she did her job selfishly or
altruistically, but simply whether she was doing her job.
III
Wetherbe apparently does not argue Laverie acted outside the scope of her employment
barring consideration of the subjective intent behind her allegedly defamatory statements. Laverie
was senior associate dean of the business school and a member of the dean search committee.
According to Texas Tech’s provost, Laverie was “essentially running that college” while the
outgoing dean battled illness. Smith testified: “[W]hen I need to know something about the college,
we call Debra Laverie,” and that “if we have a question about issues related to hiring of new faculty
or finances, what have you, we typically go through [Laverie].” Smith did so when he asked Laverie
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about the faculty’s perspective on the leading candidates for the open dean position, which Laverie
was in a position to provide both as senior associate dean and a search-committee member. Notably,
Laverie did not volunteer that the faculty perceived Wetherbe to have the inside track. Rather, she
offered that information in direct response to an unsolicited question by the provost. Smith further
testified it was within Laverie’s role to “bring personnel complaints” to his attention, which she did
when she informed him about the “listening device” report. Even if Laverie defamed Wetherbe, she
did so while fulfilling her job duties.
***
The court of appeals erred in denying Laverie dismissal from Wetherbe’s lawsuit on the
ground that the record did not “conclusively establish that, on the occasion of their conversation
regarding Wetherbe, she was serving any purpose of her employer, as opposed to furthering her own
purposes.” 2015 WL 739670, at *4. Government employees are not required to prove their subjective
intent behind an allegedly tortious act in order to be dismissed from a suit pursuant to the Tort
Claims Act’s election-of-remedies provision. We conclude Laverie was acting in the scope of her
employment as senior associate dean and a member of the dean search committee when she made
the allegedly defamatory statements of which Wetherbe complains. Accordingly, we reverse the
court of appeals and render judgment dismissing Laverie from the underlying suit.
__________________________
Jeffrey V. Brown
Justice
OPINION DELIVERED: December 9, 2016
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