Laverie v. Wetherbe, 15-0217

• Decision Date: 07 April 2017
• Docket Number: NO. 15-0217,15-0217
• Parties: Debra LAVERIE, Ph.D., Petitioner, v. James WETHERBE, Ph.D., Respondent
• Court: Texas Supreme Court

517 S.W.3d 748

Debra LAVERIE, Ph.D., Petitioner,

v.James WETHERBE, Ph.D., Respondent

NO. 15-0217

Supreme Court of Texas.

Argued September 14, 2016

OPINION DELIVERED: April 7, 2017

Beth Ellen Klusmann, Assistant Solicitor General, Charles E. Roy, First Assistant Attorney General, Jeffrey C. Mateer, First Assistant Attorney General, Warren Kenneth Paxton Jr., Attorney General of Texas, Scott A. Keller, Office of the Attorney General, Austin TX, for Petitioner.

Aaron M. Pier, Fernando Manuel Bustos, Bustos Law Firm, P.C., Lubbock TX, for Respondent.

Justice Brown delivered the opinion of the Court.

We deny the respondent's motion for rehearing, withdraw our opinion of December 9, 2016, and substitute the following in its place.

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 in part that she made the allegedly defamatory statements in the scope of her employment by Texas Tech, a governmental unit, and therefore cannot be sued in her individual capacity. 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 that 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 as to claims arising out of the statements at issue in this appeal. We remand any remaining claims to the trial court for further proceedings consistent with this opinion.

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 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]."

Laverie filed a traditional motion for summary judgment arguing the Tort Claims Act's election-of-remedies provision forecloses suit against her in her individual capacity because she acted in the scope of her employment when making the allegedly defamatory statements. Wetherbe argued in response that Laverie 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 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 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...