James Wetherbe, Ph. D. v. Debra Laverie, Ph. D.

Citation: Not availableDocket: 07-17-00306-CV

Court: Court of Appeals of Texas; August 8, 2019; Texas; State Appellate Court

Original Court Document: View Document

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James Wetherbe, Ph.D., appellant, filed a slander suit against Debra Laverie, Ph.D., appellee, both faculty members at Texas Tech University's Rawls College of Business, in 2012. Wetherbe alleged that Laverie made defamatory statements about him during a faculty meeting and to the university provost. Laverie sought to dismiss the case invoking the election of remedies provision under the Texas Tort Claims Act (TTCA), specifically section 101.106(f), which pertains to governmental immunity. The trial court dismissed Wetherbe's claims regarding the statements to the provost, while the slander claim from the faculty meeting was remanded. Subsequently, the trial court dismissed this remaining claim as well.

Laverie, serving as the senior associate dean, was involved in overseeing faculty matters and had a role in developing the International Masters of Business Administration (IMBA) program. During a meeting on February 2, 2012, she allegedly accused Wetherbe of using an electronic listening device to eavesdrop on others, which Wetherbe contended was a false statement.

Wetherbe argued that the trial court erred in dismissing his case, claiming Laverie acted outside the scope of her employment when making the alleged slanderous statement. The ruling on the dismissal was examined under the lens of governmental immunity, which can be raised via a plea to the jurisdiction, a procedural tool that challenges the trial court's subject matter jurisdiction without addressing the merit of the claims. The appellate court confirmed that the standard of review for such a plea is de novo, focusing on the live pleadings to assess jurisdictional issues. The court ultimately affirmed the trial court's dismissal order.

A plaintiff must establish the trial court’s jurisdiction, which involves presenting relevant evidence when a plea to the jurisdiction challenges the facts supporting subject-matter jurisdiction. The trial court evaluates this evidence similarly to a summary judgment motion, considering affidavits and other pertinent evidence while favoring the nonmovant and resolving doubts in their favor. If evidence creates a factual question about jurisdiction, the plea cannot be granted, and the matter must be determined by a fact finder. The Texas Tort Claims Act (TTCA) allows limited waivers of immunity and contains an election of remedies provision, which stipulates that if a suit is filed against a governmental employee for actions within their employment scope, it is treated as a suit against the employee in their official capacity only. The employee can seek dismissal unless the plaintiff amends their pleadings to name the governmental unit as the defendant within 30 days. This provision is designed to ensure that only governmental units are liable for employees' work-related torts. Plaintiffs must determine whether the employee acted independently or within their employment scope, as the TTCA only applies to claims against governmental units for employee actions taken within that scope. Notably, under the TTCA, intentional torts, such as defamation, do not waive immunity, meaning no TTCA relief would be available for such claims if brought against a governmental unit. However, all tort claims against a governmental unit are treated as if they fall under the TTCA for section 101.106 purposes, regardless of whether they're sued alone or with employees.

Wetherbe's lawsuit could have been filed under the Texas Tort Claims Act (TTCA) against Texas Tech, as a governmental employee is considered to be acting within the scope of employment if performing assigned duties at the time of the alleged tort. The inquiry under section 101.106(f) focuses on whether the conduct was within the employee’s job responsibilities, disregarding the employee's motivations or personal reasons for the actions taken. Wetherbe does not dispute Laverie's status as a governmental employee or that the suit could proceed against Texas Tech; instead, he questions whether Laverie's conduct as Senior Associate Dean was connected to her job duties. The court maintains that the quality of Laverie’s performance or her personal motives are irrelevant, as long as the actions were within her job responsibilities. Laverie’s allegedly defamatory remarks were made during a meeting concerning faculty invitations, which was part of her duties overseeing the IMBA program. Previous case law supports that statements made in the scope of employment are protected under section 101.106(f). Wetherbe also claims factual disputes exist regarding whether Laverie made a specific statement. However, for the purposes of review, the court accepts Wetherbe's allegations as true and determines that the statement in question was made within the general scope of Laverie’s employment, leading to the overruling of Wetherbe’s issues.

Wetherbe contends that if his pleadings exhibit a curable jurisdictional defect, the trial court erred by dismissing his case without allowing him to amend his petition. He cites precedent indicating that a plaintiff should be given the chance to amend a curable jurisdictional claim prior to dismissal for lack of jurisdiction. However, the court finds this principle inapplicable as Wetherbe submitted detailed pleadings, opposed Laverie’s motion to dismiss with evidence, and filed a surreply, supported by a substantial record that includes nine depositions. The court notes that it is unclear what additional material facts could have been included in Wetherbe's petition. Consequently, Wetherbe's third issue is overruled. The court concludes that since Wetherbe could have sued Texas Tech and Laverie acted within her employment scope, his suit against Laverie is solely in her official capacity. The trial court's dismissal of Wetherbe’s lawsuit is affirmed.