## IN THE SUPREME COURT O F TEX AS

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### D E B R A 

### L A V E R IE 

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. , P E T IT IO N E R 

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v. 

### J A M E S 

### W E T H E R B E 

### , P H 

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. , R E S P O N D E N T

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E S E V E N T H D I S T R I C T O F T E X A S

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Argued Septem ber 14, 2016

J U S T I C E B R O W N delivere d the opinion of the Court. A Texas Tec h profe ssor and associate dean, J ames Wetherbe, sued a colleague, Debr a L aver ie, for defa

mation afte r he was passed over for promoti o n . L av er ie moved for summary judgme nt, arguing Wether be must name Tex as Tech as a def endant a nd dismiss her f

rom the suit. The trial court denied that motion and the court of appea ls aff irmed on the g round that L aver ie failed to offe r evidenc e she was not further ing her own purposes, rathe r than her em p l o y er ’s , when she made the alleg edly defa

matory statements. We disagree . L aver ie was entitled to dismiss al when she furnished conclusive evidenc e she was acting within the scope of her employ ment; she need not have offe red e vidence of her

motives for makingthe alleg edly defa matory statements. Acc ording ly , we

reve rse the c ourt of appe als and re nder judgment dismiss ing L aver ie from Wether be’s suit.I

In the fall of 2011 a sear ch wa s u n derw ay to selec t a new dean of the Rawls College of Business Administration at Texas Tec h University

. Texas Tec h’s pro v ost, Bob Smit h, formed a

sear ch commit tee to which he appointed both Wet herbe and L aver ie, t he busi ness s chool’s senior associate dean. Wether

be later withdrew f

rom the committee to see k the dea nship himself. Smit h testified that, as senior associate dean, L aver ie oversa w fac ulty rec ruiting and hiring ; she was eff

ectively running the business school beca use the outgoin g dean was ill. Acc ording ly , Smit h said he “relied on [her] to provide updates from the colleg e and first-han d i n s i gh t s into the ong oing sear ch.” Sometime afte r Wetherbe withdrew fr o m t h e sear ch committee, Smit h asked L aver ie about the fac ulty ’s perspe ctive on the sear ch proce ss. L averie repor ted that “it was her sense that the fac ulty considere d Wetherbe to be a ‘sin gu l ar ’ candida te.” Smit h said he interpre ted L aver ie’s re p o rt to mean that “some fac ulty thought Wetherbe had the sear ch ‘wire d,’ or that by enter ing the rac e he w as the pre sumptive front-runne r.” Smit h then contac ted B ob L awless, a former Texas Tech president who was manag ing the

sear ch for the university , to confirm that all prospe ctive ca ndidates under stood the sear ch was fair and open to all. Acc ording to Smit h, L awless told him an external candidate had expressed conce rns

o v er rumors of a strong , internal candidate. This prompted Smit h to send an e-ma il to the en t i re colleg e faculty and the sear ch commit tee “assuring them that the sea rch w as i ndeed open and that there was no strongfavor ite for the position.” Sometime during the sear ch, L aver ie separ ately informed Smit h that a staff member repor ted that Wetherbe was using “some kind of listening device or other to ea v esdrop on people’ s 2conver sations in the Rawls College .” Smit h said he considere d it “only a hear say repor t” and denied it play ed any role in his decision to send the e-ma il reg arding the sear ch or his ultimate decision on Wetherbe’ s candida cy . The sear ch conclude d in spring 2012. Nine candidates, in c lu d in g We th e r b e , w e r e in

te r v ie wed off campus. The committee then selec ted Wetherbe as one of four f ina lists for on-ca

mpus interviews. Smit h, howeve r, declined to further interview W et h erb e beca use he was “unimpresse d with his perf ormanc e in the first interview” and “stre nuously disag ree d with his leadership philosophy and was discour ag ed by

his lack of vision” for

the business school. During the sear ch, Wetherbe was also nomina t ed t o be a Horn Professor, a mark of distinction at Texas Tec h. Al though the Horn Professor selec tion committee had rec ommended approva l of his nomination, Smith w ithdrew his support afte r discovering Wetherbe was not tenure d, which he believed was a prer equisite for a Horn profe ssorship. After informing the committee that Wetherbe was not tenure d, Smit h testified that “appr ox imately 19 o u t o f 20 that responde d confirme d thei r agr ee ment that Wetherbe could not be a Horn Professor without being a tenure d fac ulty member.” Having been passed over for both the dean opening and a Horn profe ssorship, Wetherbe sued for defa mation. He claims L aver ie’s statements to Smit h about his perc eived front-r unner status and his supposed use of a “listening device ” torpedoe d his chanc es for promotion. Wetherbe theorizes that L aver ie fa

bricated the stories to sa

botag e him; Smith, howe ver, maintains that while he r elied

on L aver ie “to provide information and counsel about the business school,” she “did not cause , nor otherwise motivate, me to make any of the de cisions Imade in re g ard to [Wetherbe].”

3L aver ie filed a tr ad i t i o n al motion for summary judgme nt arguing the Tort Claims Act

require d Wetherbe to name Texas Tec h as a defe ndant and dismiss her from the lawsuit. Wetherbe argued in response that L averie was not entitled to dismiss al beca use she did not act in the scope of her employ

ment when she defa

med him. The trial court denied L aver ie’s motion and she appea led. The court of appe a ls a f

f ir me d, concluding that althoug h Wetherbe “ac knowledg es that speaking with the University ’s provost about occur renc es at the Rawls College may fall within L aver ie’s duties for the University ,” the rec ord nonetheless did not “conc lusively establish that, on the occa sion of their

conver sation reg arding Wetherbe, she was serving any purpose o f her employ er, as opposed to further ing her own purposes only .” No. 0 7 -1 3 -00348-CV, 2015 WL 739670, at *4 (Tex. App.—Amar illo Fe b. 20, 2015) (mem. op.). S p ec i fica lly , the court of appea ls noted the rec ord “conta ins no direc t evidenc e of L aver ie’s intenti o n s when she spoke with Smith about Wetherbe befor e Smith sent his email, and does not conclusively establish the nature of her motivation in doing so, either a s to the dean se arc h or as to the report of W ether be’s use of a listeningdevice .” Id. We g rante d revie w. II A We revie w de novo a trial court’s denial o f a t ra d i tional motion for summary judgme nt. Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). The Tort Claims Act provides a limit ed waiver of g overnme ntal immunit y , see T E X . C I V . P R A C . & R E M . C O D E § 101.023, and contains an elec tion-of-re medies provision intended to “for ce a plaintiff to decide at the outset whether an employ ee acte d independe ntly and is thus solely liable, or acte d within the g ener al scope 4of his or her employ ment such that the g overnme ntal unit is v icariously liable.” Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W .3d 653, 657 (Tex. 2008) (interpr eting T E X . C I V . P R A C . & R E M . C O D E § 10 1

. 1 0 6). L aver ie argues she should be dismiss ed from Wetherbe’ s suit beca use the elec tionof-r emedies provision compels “the expedient dismiss al o f go v ernme ntal employees when suit should have been broug ht ag ainst the g overnme nt.” See Tex. Adjutant Gene ral’s Office v. Ngakoue , 408 S. W. 3 d 3 5 0 , 3 55 (Tex. 2013). “The L eg islature mandates this deter mination in order to ‘re duc[e] the resour ces that the g overnme nt and its employ ees must use in defe nding redunda nt litigation and alternative theories of rec overy .’” Alexande r v. W alker , 435 S.W .3d 789, 790 (Tex. 20 1 4 ) (per curiam) (quoting Garcia , 253 S.W .3d at 653). The elec tion-of-re medies provision provides: I f a suit is filed ag ainst an employ ee of a g overnme ntal unit based on conduct within the g ener al scope of that employ ee’ s employ ment and if it could have been brought under this chapte r ag ainst the g overnme ntal unit, the suit is considere d to be ag ainst the employ ee in the employ ee’ s officia l capa city only

. On the employ ee’ s motion, the suit ag ainst the employ ee shall be dismiss ed unless the plaintiff files amende d pleading s dismiss ing the employ ee and naming the g overnme ntal unit as defe ndant on or bef ore the 30th day

afte r the date the motion is filed. T E X . C I V . P R A C . & R E M . C O D E § 101.106(f)

. More succinc tly , a defe ndant is entitled to dismiss al upon proof that the plaintiff’s suit is (1) based on conduct within the scope of the defe ndant’s employ ment with a g overnme ntal unit and (2) could have bee n brought ag ainst the g overnme ntal unit under the Tort Claims Act. See Franka v. Velasquez , 332 S.W .3d 367, 3 6 9 (Tex. 2011); Anderson v. Bessman , 365 S.W .3d 119, 124 (Tex. App.—Houston [1st Dist.] 2011, no pet.). “Scope of employ ment” is further define d as “the perf ormanc e for a g overnme ntal unit of the duties of an employ ee’ s office o r em p l oy ment and

5includes being in or about the perf ormanc e of a task lawfully assigned to an employee by competent authority .” T E X . C I V . P R A C . & R E M . C O D E § 101.001(5). B Wetherbe does not dispute L averie is a g overnme nt employ ee or that Wetherbe’ s defa mation claim could have been broug ht agai n s t T ex as T ech under the Tort Claims Act. The only issue is whether L aver ie acte d within the scope of her employ ment when she made the alleg edly defa matory statements. Wetherbe seems to conce de L aver ie possibly acte d within the scop e of her employ ment—he simply argues we cannot know with cer tainty unless we know why she said what she said. He there fore agree s with the court of appea ls that the dismiss al standard require s L aver ie to furnish conclusive evidenc e sh e wa s “s er v i ng any purpose of her employ er, as opposed to further ing he r own purpose s only .” 2015 WL 739670, at *4. Nothing in the elec tion-of-re medies provision or the statutory defin i t i o n of “scope of employ ment” sug g ests s ubjective intent is a nece ssary component of the scope- of-e mploy ment analy sis. Rather, the Tort C laims Act focuses on “per formanc e . . . of the duti es of an employ ee’ s office or employ

ment,” which calls for an objective assessment of whether the employ ee was doing her job when she committed an alleg ed tort, not her state of mind when she was doing it. T E X . C I V . P R A C . & R E M . C O D E § 101.001(5). Moreove r, Wetherbe’ s view depar ts from our traditional scopeof-e mploy

ment analy sis in respondeat superior case s, which conc erns only whether the employee is “discha rg ing the duties g ener ally assig ned to her.” City of Lancaster v. Chambers , 8 83 S.W .2d 650, 658 (Tex. 1994); see also Goodye ar Tire & Rubber Co. v. Maye s , 236 S.W .3d 754, 757 (Tex. 2007) (“The employ ee’ s acts must be of t h e same g ener al nature as the conduct authorized or 6incidental to the conduct author i z ed t o be within the scope of employ ment.”). We presume the L eg islature knew of our longsta nding approa ch to the scope- of-e mploy ment analy sis and s e e n o thing in the Tort Claims Act compelling a differ ent approa ch. See Dugger v. Arredondo , 408 S.W .3d 825, 835 (Tex. 2013) (“[W] e presume the L eg islature enac ts a statute with knowledg e of exis ting law.”)

. The scope- of-e mploy

ment analy sis, there fore , rema ins fundame ntally objective : I s there a

connec tion betwee n the employ ee’ s job duties and the alleg ed tortious conduct? The answe r may be y es even if the employee perf orms neg lige ntly or is motivated by ulterior motives or persona l 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 prese nce of such a motive or purpose in the serva nt’s mind does not aff

ect the master’ s liability , wher e that which the serva nt does i s in the l ine of his du t y , and in the prosecution of the master’s work.” ). We find no case law from our courts of appea ls suppor ting the position Wetherbe and the court of appea ls advanc e in this case . Cf. Melton v. Farrow , No. 03-13-00542- CV, 2015 WL 681491, at *3 (Tex. App.—Austin Fe b. 10, 2015, pet. denied) (“Te x as 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 ba sis of the suit was wrong ly or neg lige ntly

perf ormed or dr iven by

persona l animus.”); Anderson , 365 S

. W

. 3 d at 125–26 (“So long as it falls within the duties assig ned, an employ ee’ s

co n du ct i s within the scope of employ ment, even if done in part to serve the purposes o f t h e employ ee or a third person.” ) (interna l quotation marks omitted). Given the uniformity of our case law and the lack of any mention of subj ective intent in the election-of-r emedies provision, we see

no rea son for such a drastic depar ture from our longsta

nding approa ch to respondeat superior case s. 7C

The court of appea ls held otherwise, rely ing larg ely on our ref

ere nce t o t h e R est atement (Third) of Ag ency in Alexande r v. W alker

. See 2015 WL 739670, at * 3

. There , we acknowledg ed the Restatement’s assessment that “[a]n employ ee’ s act is not within the scope of employ ment when it occur s within an independe nt course of conduct not intended by the employe e to serve any purpose of the employ er.” 435 S.W .3d at 792 (quoting RE S T A T E M E N T (T H I R D ) O F A G E N C Y § 7.07(2) (2006)) (empha sis added). F rom this, the court of a ppeals c oncluded L aver ie was r equire d to conclusively establish “she was serving any purpose of her employ er, as opposed to further ing her own purposes only .” 2015 WL739670, at *4. Alexande r itself dispro v es an y sug g estion we endorse d this view. Despite our citation of section 7.07(2), we n ev er demande d evidenc e of the defendants’ subjective i ntent in holding they

wer e entitled to dismiss al. See Alexande r , 435 S.W .3d at 792. Nor do we perc eive any inconsistency b e tw e en the Restatement’s articulation of the scope- of-e mploy ment analys is a

n d o u r e s ta b li s h e d c a s e law. Section 7.07(2) beg ins by stating that “[a]n employ ee acts within the scope of employ ment when perf

ormingwork assig ned by the employ er or eng ag ing in a course of conduct subject to the employ er’ s control.” RE S T A T E M E N T (T H I R D ) O F A G E N C Y § 7.07(2) (2006). It then posits a neg ative definition of scope of employ ment: an act “is not wi t h i n t h e scope of employ ment when it occur s within an independe nt c ourse of conduct not intended by the employ ee to serve any purpose of the employ er.” Id. We believe the Restatement’s ref ere nces to intent and purpose simply ref lect that an employ ee whose conduc t is unrelated to his job, and theref ore obje ctively

outside the scope of

his employ ment, is e ng ag ing in that c onduct for his own rea sons. And in c ases in which the employ ee 8assumes an independe nt course of conduct, i t is no surprise that courts mi g ht mention his rea sons

for doing so. See, e.g. , T

ex . & P

. R

y. Co. v. Hagenloh , 247 S.W .2d 236, 241 (Tex. 1952) (“[T]he evidenc e conclusively s h o we d t h at the employ ee in making the assault was actuated by persona l animosity and that there was no close relation betwee n the assault and the perf ormanc e of the duties of the employ

ment.”). This is not tantamount to a threshold require ment that g overnme nt-employee defe n dants conclusively prove their subjective intent to establish they acte d in the scope of their employ ment. Nor does the sec ond sentenc e of se ction 7.07(2), by clar ifying what is not within the scope of employ

ment, impose on g overnme nt employ ees the burden to conclusively s at i s fy a neg ative def

inition. Wetherbe further argues our holding in Minyard Food Stores, Inc. v. Goodman turned on an evaluation of the employ ee’ s subjective intent. See 80 S.W .3d 573 (Tex. 2002)

. Minyard involved alleg edly defa

matory statements a g roce ry -store mana ger m ade ag ainst a co-w orker during an investigation of an alleg ed workplac e aff air. Id. at 574–75. Specifica l l y , the plaintiff, a Miny ard employ ee, all ege d that a store manag er defa med her when he falsely claimed to have kissed and hug g ed her. Id. at 575. We noted that althoug h his employ er compelled his participation in the investigation, defa

matory statements made in the course of the investiga tion could not “fur

ther [t he employ er’ s] business and acc omplish a purpose of [the manag er’ s] job.” Id. at 579. We distinguished th e fa ct s i n Minyard from cases in which other courts concluded allege dly defa matory statements

wer e within the scope of employ ment by articulat i n g “a critica l distinction betwee n defa ming

someone to one’s employ er and defa ming someone for one’s employ er.” Id. (citing examples). Fr om this, Wetherbe g leans an evaluation of the manag er’ s subjective intent. Y et we held the manag er’ s 9statements fell outside the scope of employ ment beca

use they did not “fur

ther [the store’s] business and acc omplish a purpose of [t he manag er’ s] job.” Id. In other words, the manag er’ s admissions to “k i s s i n g an d hug g ing” a co-w orker wer e not in further ance of his responsibilities in running a g roc ery store. The “cr itical distinction” we acknow ledg ed did not invite a subjective-intent assessment, but rather c larified the g rounds under which def

amation might be fairly

considere d to be in the objec tive scope of employ ment. D Aside from lacking support in our case law, Wetherbe’ s approa c h p r esents a number of issues rende ring it inconsistent wi th the elec tion-of-re medies provision. “I n waiving g overnme ntal immunit y , the L eg islature corr esponding ly soug ht to discourag e or preve nt rec overy ag ainst an employ ee.” See Franka , 332 S.W .3d at 384. In that vein, the elec tion-of-re medies provision “fa vors the expedient dismiss al of g overnme ntal employ ees when suit should have been brought ag ainst the g overnme nt,” Ngakoue , 408 S.W .3d at 355, and “reduc [es] the re source s that the g overnme nt and its empl o y ee s must use in defe nding redunda nt litigation and alternative theories of rec overy .” Garcia , 253 S

. W

. 3 d at 657. Yet requiring proof of an employ ee’ s subjective int ent would burden g overnme nt employ ees w ith proving a neg ative to attain dismissal; that is, that they acte d without ulterior moti v es o r an i m u s . See State Farm Mut. Auto. Ins. Co. v. Matlock , 462 S.W .2d 277, 278 (Tex. 1970) (discussing the “diffic ulty in proving a neg ative”)

. Moreove r, requiring proof of subjective intent invites partial litigation of the underly ing defa mation c laim itself, as questions of whether the statement was true or fa l s e, and whether L aver ie knew it was truth or false, will inevitably springforth whe n considering whyshe said it. The func tion of the elec tion-of-re medies 1 0provision, howeve r, is not to adjudicate the underly ing tort claim but to quickly dismiss g overnme nt employ ees when the suit should be brought ag ainst their employ er. See Ngakoue , 408 S.W .3d at 355. Finally , requiring g overnme nt employ ees to produce conclusive evidenc e of their subjective intent mandates evidenc e that is often irrele vant to the ultimate question of whether the alleg ed tort

was committed within the scop e of employ ment. L aver ie’s persona l motivations, if she had any , ultimately

do not c hang e her job r esponsibiliti es and whether the statement was in pe rfor mance of them. See Melton , 2015 WL 681491, at *3; Anderson , 365 S.W .3d at 125–26. An employ ee will of

course sometimes have personal moti ves for perf orming her job a particular way , and a statement made or an act done may sim u l t an eo u s l y fulfill a job responsibility while further ing an ulterior motive. The line betwee n the profe ssional and persona l is sometimes difficult to discern, as people t y p ically do not car efully or consciously delineate betwee n the two. The fundame ntal inquir y there fore is not whether L aver ie di d her job well or poorly , or whe ther she did her j ob selfishly or altruistically , but simpl y

whether she wa s doing he r job.

III Wetherbe appar ently does no t ar gu e L aver ie acte d outside the scope of her employ ment barr ing c onsideration of the subjective intent behind he r alleg edly defa matory statements. L aver ie

was s en i o r as s o ciate dean of the business school and a member of the dean sear ch committee. Acc ording to Texas Tec h’s provost, L aver ie was “esse ntia l l y ru n ning that colleg e” while the outgoing dean battled illness. Smit h testified: “[W ]hen I need to know something about the colleg e,

we call Debr a L aver ie,” and that “if we have a question about issues related to hiring of new fac ulty

or financ es, what have you, we ty pically g o throug h [L aver ie].” Smit h did so when he asked L aver ie

1 1about the fac ulty ’s perspe ctive on the leading candidates for the open dean position, which L aver ie

was in a position to provide both as senior associate dean and a sear ch-c ommitt ee member. Notably , L aver ie did not voluntee r that the fa culty perc eived Wether

be to have the inside trac k. Rather, she offe red that information in dir ect response to an unsolicited question by the provost. Smit h further testified it was within L aver ie’s role to “bring personne l complaints” to his attention, which she did when she informed him about the “listening device ” repor t. Even if L aver ie defa

med Wetherbe, she did so while fulfilling he r job duties. * * * The court of appea ls err ed in denying L averi e dismiss al from Wetherbe’ s lawsuit on the gro u n d that the rec ord did not “conc lusively establish that, on the occa sion of their conver s at i o n reg arding Wetherbe, she was serving any purpose of her employ er, as opposed to further ing her own purposes.” 2015 WL 7 3 9 6 7 0 , at *4. Gover nment employ ees are not require d to prove their subjective intent behind an alleg edly tortious act in order to be dismiss ed fr o m a suit pursuant to the Tort Claims Act’s election-of- reme dies provision. We conclude L aver ie was a cting in the s cope of her employ ment as senior a ssociate de an and a member of the dean sear ch commit tee whe n she made the alleg edly defa

matory statements of which Wetherbe complains. Acc ording l y , we reve rse the court of a ppeals a nd rende r judg ment dismiss ing L aver ie from the unde rly ing suit.

__________________________ J eff rey V. B rown J ustice OPI NI ON DEL IVERED: Dec ember 9, 2016 1 2