Debra Laverie, Ph.D. v. James Wetherbe, Ph.D. ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00348-CV
DEBRA LAVERIE, PH.D., APPELLANT
V.
JAMES WETHERBE, PH.D., APPELLEE
On Appeal from the 99th District Court
Lubbock County, Texas
Trial Court No. 2012-502,988, Honorable William C. Sowder, Presiding
February 20, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
James Wetherbe, Ph.D., sued Debra Laverie, Ph.D., alleging she slandered him
through two statements she made to Texas Tech University’s provost. After discovery,
Laverie filed a traditional motion for summary judgment claiming immunity from suit
under section 101.106(f) of the Civil Practice and Remedies Code. The trial court
denied her motion. She appeals, contending the undisputed facts showed her
statements were made in the general scope of her employment. We will affirm the trial
court’s order.
Background
At the time of the events giving rise to the litigation, Wetherbe was an associate
dean of the Rawls College of Business Administration at Texas Tech University, and
Laverie was senior associate dean. The University was engaged in a search for a new
dean for the Rawls College, and Wetherbe was among the candidates.
During the dean search process, the University’s provost, Bob Smith, sent the
following email to the Rawls College faculty and the members of the search committee:
Dear Colleagues,
I have been informed by different sources that rumors have emerged from
the Rawls College about the conduct of the current search for a Rawls
College Dean. Specifically, we are hearing that the Rawls community and
professionals outside of Texas Tech are being told that there is a strong
internal candidate or singular external candidate for the post and that
additional internal or extramural candidates need not apply. I wish to set
the record straight.
The Rawls College Dean search is a totally open search and all qualified
candidates are invited to apply. The search will come to fruition in an open
and honest fashion and there is no inside track for anyone.
If there are further questions about the search I encourage you to contact
Dr. John Kobza (Associate Dean, Whitacre College of Engineering) who is
currently serving as Chair of the Rawls College Dean Search Committee.
He will confer with me as needed. Thank you for your cooperation and
thank you for helping us spread the word about the authenticity of the
Rawls College Business Dean search.
Kind regards, Bob Smith.
Laverie was the only defendant named in Wetherbe’s suit. The suit alleged that
Smith learned the rumor information from a telephone conversation with Laverie, that
she identified Wetherbe as the source of the rumor, that there was no such rumor, that
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Laverie fabricated the story, and that all recipients of the email would readily identify
Wetherbe as the “internal candidate.” The suit alleged that Laverie, in the same
telephone conversation, told Smith that an unnamed person in the Rawls College
informed her that Wetherbe was using a “listening device” to eavesdrop on
conversations in the school. The two slanderous statements, Wetherbe alleged, soured
his relationship with Smith and eventually cost him a final interview for the deanship
when he was among the selected leading candidates and cost him a promotion to Horn
Professor, the University’s highest faculty designation. The suit alleged Smith’s email
further defamed him.
Along with her general denial, Laverie’s answer asserted defenses including
truth, privilege, sovereign and official immunity and the protection of Civil Practice and
Remedies Code section 101.106.1 Laverie’s traditional motion for summary judgment
asserted several grounds, among them the contention she was entitled to dismissal
under section 101.106(f).
The trial court denied Laverie’s motion for summary judgment. This interlocutory
appeal followed.2
Analysis
1
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (West 2012). Unless otherwise stated, further
references to “§ 101.106” are to that section of the Civil Practice & Remedies Code.
2
We have jurisdiction over an interlocutory order of a district court that “denies a motion for
summary judgment that is based on an assertion of immunity by an individual who is an officer or
employee of the state or a political subdivision of the state.” TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(a)(5) (West 2013). For this purpose, Texas Tech University is treated as a political subdivision.
See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas. Joint Self-
Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006) ("The State's sovereign immunity extends to various
divisions of state government, including agencies, boards, hospitals, and universities"). By moving for
summary judgment under section 101.106(f), Laverie was asserting immunity. Franka v. Velazquez, 332
S.W.3d 367, 371 n.9 (Tex. 2011).
3
On appeal, Wetherbe contends the trial court properly denied Laverie’s motion
for summary judgment because in her telephone conversation with Smith she did not
act “within the general scope of [her] employment” under the terms of section
101.106(f).
We review de novo the trial court's ruling on a summary judgment motion. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The
party moving for traditional summary judgment bears the burden of showing that no
genuine issue of material fact exists and the party is entitled to judgment as a matter of
law. TEX. R. CIV. P. 166a(c). When moving for summary judgment based on an
affirmative defense, such as immunity, the movant bears the burden to conclusively
establish each element of the defense. Morgan v. City of Alvin, 175 S.W.3d 408, 413
(Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339,
341 (Tex. 1995) (per curiam)). If the movant conclusively establishes the affirmative
defense, the burden shifts to the non-movant to raise a disputed fact issue. Id. (citing
Brand v. Savage, 920 S.W.2d 672, 673 (Tex. App.—Houston [1st Dist.] 1995, no writ)).
To determine if the non-movant raises a fact issue, we review the evidence in the light
most favorable to the non-movant, crediting favorable evidence if reasonable jurors
could do so and disregarding contrary evidence unless reasonable jurors could not.
Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005)).
Section 101.106(f) reads:
(f) 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
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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 ANN. § 101.106(f).
A defendant is entitled to dismissal under section 101.106(f) on proof that the
plaintiff's suit (1) was based on conduct within the general 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. Franka v. Velasquez, 332 S.W.3d 367,
369 (Tex. 2011); Univ. of Tex. Health Sci. Ctr. v. Bailey, 332 S.W.3d 395, 401 (Tex.
2011). The Tort Claims Act defines "scope of employment" as "the performance for a
governmental unit of the duties of an employee's office or employment and includes
being in and about the performance of a task lawfully assigned to an employee by
competent authority." TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5).
As plead, Wetherbe’s suit alleged Laverie intentionally defamed him. In Franka,
the court stated that “section 101.106(f)’s two conditions are met in almost every
negligence suit against a government employee” 332 S.W.3d at 381, but noted that
“[w]hether an employee’s intentional tort is within the scope of employment is a more
complex issue.” Id. at n.63. The court cited generally to section 7.07 of the
Restatement (Third) of Agency. Id.
In a per curiam opinion issued last year, the court elaborated on its reference to
the Restatement of Agency. Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014)
(per curiam). After quoting the Tort Claims Act’s definition of scope of employment, the
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court stated that “[t]he Restatement (Third) of Agency provides additional clarity by
defining the term negatively.” Id. The opinion then quoted the second sentence of the
Restatement’s section 7.07(2), which provides, "[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." Id. (quoting
Restatement (Third) of Agency § 7.07(2)).3
At least three courts of appeals have applied the Restatement of Agency’s
language to scope of employment determinations under section 101.106(f) in cases
involving allegations of intentional torts. Reece v. Johnson, No. 10-12-00077-CV, 2013
Tex. App. LEXIS 10621 (Tex. App.—Waco Aug. 22, 2013, no pet.) (mem. op.) (alleged
theft of personal property by correctional officers); Redburn v. Garrett, No. 03-12-00215-
CV, 2013 Tex. App. LEXIS 6005 (Tex. App.—Corpus Christi May 16, 2013, pet. denied)
(mem. op.) (suit to enjoin alleged trespass by municipal employees); Mason v. Wood,
No. 09-12-00246-CV, 2013 Tex. App. LEXIS 2692 (Tex. App.—Beaumont March 14,
2013, no pet.) (mem. op.) (alleged theft and fraud by correctional officers).
Laverie relies principally on opinions applying the definition of scope of authority
from City of Lancaster v. Chambers. 883 S.W.2d 650, 658 (Tex. 1994) ("An official acts
within the scope of her authority if she is discharging the duties generally assigned to
her"); see, e.g., Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex. App.—Houston [1st
3
The Restatement’s section 7.07(2) reads, in its entirety:
An 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. An
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. Restatement (Third) of Agency § 7.07(2) (2006).
6
Dist.] 2011, no pet.) (quoting Chambers). In view of the Supreme Court’s recent
application of the Restatement language, however, we include consideration of its
negative definition as well. Alexander, 435 S.W.3d at 792.4
Opinions applying the Chambers language to scope of employment
determinations under section 101.106(f) recognize that conduct may fall within the
scope of employment “even if done in part to serve the purposes of the employee or a
third person.” Anderson, 365 S.W.3d at 125-26 (citation omitted). Likewise, the
Restatement language quoted in Alexander takes an act outside the scope of
employment only when it is part of an independent course of conduct not intended by
the employee to serve any purpose of the employer. 435 S.W.3d at 792.5
On appeal Wetherbe acknowledges that speaking with the University’s provost
about occurrences at the Rawls College may fall within Laverie’s duties for the
University, but urges that summary judgment was properly denied because the record
does not conclusively establish that, on the occasion of their conversation regarding
4
We do so despite the language in Comment a to the Restatement’s section 7.07, stating, “[t]his
section [7.07] is inapplicable to an employer’s liability for one employee’s tortious conduct toward a fellow
employee, a topic being considered by Restatement Third, Employment Law, in preparation as
Restatement Third, Agency, was completed.” See Restatement (Third) of Agency § 7.07, cmt. a. Laverie
and Wetherbe are, of course, fellow employees of the Rawls College.
5
Among the cases involving intentional torts within the scope of employment cited in the
Reporter’s Notes to section 7.07 is GTE Southwest v. Bruce, 998 S.W.2d 605 (Tex. 1999). Restatement
(Third) of Agency § 7.07 (Reporter’s Notes (c) (2006)). There, the court found evidence to support a
jury’s finding that a supervisor was acting in the scope of his employment when he intentionally inflicted
emotional distress on other employees. Id. at 617-18. The court noted an employer may be liable for an
intentional tort committed in the accomplishment of a duty entrusted to the employee, “rather than
because of personal animosity.” Id. at 618. Finding GTE cited no evidence that the supervisor’s actions
“were motivated by personal animosity rather than a misguided attempt to carry out his job duties,” the
court affirmed the jury’s conclusion.
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Wetherbe, she was serving any purpose of her employer, as opposed to furthering her
own purposes only. We must agree.
Reiterated, it was Laverie’s burden when seeking summary judgment to establish
conclusively that she was acting within the scope of her employment when she
conversed with Smith. See Cathey, 900 S.W.2d at 341. The summary judgment 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. Consequently, Laverie has failed to satisfy her traditional
summary judgment burden required for dismissal under section 101.106(f).6 For that
reason, the trial court’s ruling on Laverie’s motion for summary judgment was correct.
We overrule Laverie’s appellate issue and affirm the order of the trial court.
James T. Campbell
Justice
6
Laverie also filed a no-evidence motion for summary judgment. TEX. R. CIV. P. 166(a)(i). We
need not address the no-evidence motion. We also do not address the second element of section
101.106(f) immunity, requiring proof Wetherbe’s suit could have been brought against the University
under the Tort Claims Act. See Franka, 332 S.W.3d at 381 (suit could have been brought under the Tort
Claims Act if “in tort and not under another statute that independently waives immunity”).
8