Texas Supreme Court holds subjective intent in performing job has no bearing on entitlement to §101.106(f) defense
Laverie v Wetherbe, 15-0217 (Tex. December 9, 2016)
This is a Texas Tort Claims Act §101.106(f) case where the Texas Supreme Court reversed and rendered an order denying a motion for summary judgment and held no “subjective intent” element exists requiring an employee to establish they acted only in their employment capacity.
A Texas Tech professor and associate dean, Wetherbe, sued a colleague, Laverie, for defamation. Understanding the University was immune from defamation claims, Wetherbe sued the senior associate dean in charge of the search committee for a new dean of Rawls College of Business Administration. During the search, Leverie allegedly told Texas Tech’s provost, Bob Smith, 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 not to appoint Wetherbe. Wetherbe was also passed over for a Horn professorship. Wetherbe sued Laveria for defamation. Laveria filed a Tex. Civ. Prac. & Rem. Code §101.106(f) motion for summary judgment to dismiss her and substitute the University since she was acting within the course and scope of her employment. Wetherbe counted the defamatory statements were not uttered in the course and scope of employment but were for personally motivated reasons. The trial court denied the motion. The Court of Appeals affirmed noting the record “contains no direct evidence of Laverie’s intentions when she spoke with Smith about Wetherbe … and does not conclusively establish the nature of her motivation…” Laveria appealed.
The Supreme Court analyzed the language and purpose behind §101.106(f). 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. However, 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. An employee whose conduct is unrelated to his job, and therefore objectively outside the scope of his employment, would not be entitled to such a defense. This is not tantamount to a threshold requirement that government-employee defendants conclusively prove their subjective intent to establish they acted within the scope of their employment. Further, requiring proof of an employee’s subjective intent would burden government employees with proving a negative to attain dismissal. Moreover, requiring such would require at least a partial analysis of the merits, where the function of the election-of-remedies provision is not to adjudicate the underlying tort claim but to quickly dismiss government employees when the suit should be brought against their employer. Finally, Laverie’s personal motivations, if she had any, ultimately do not change her job responsibilities and whether the statement was in performance of them. Laverie was senior associate dean of the business school and a member of the dean search committee. Laverie did not volunteer the information but responded as a direct result of Smith’s specific inquiry on the search. Even if Laverie defamed Wetherbe, she did so while fulfilling her job duties. As a result, Laverie is entitled to dismissal.