ExxonMobil Pipeline Co. v. Coleman
Dallas Court of Appeals, No. 05-14-00188-CV (May 12, 2015)
Justices Lang-Miers, Brown (Opinion), and Schenck
The first step in addressing a motion to dismiss under Texas’s anti-SLAPP statute, the Citizens Participation Act (“TCPA”), is to decide whether the Act even applies to the conduct and claims at issue. In a carefully reasoned opinion that drew some very fine lines, the Dallas Court of Appeals held the Act did not apply to an employee’s claims of defamation regarding ExxonMobil’s internal communications about that employee’s alleged failure to do his job. The communications were not an exercise of “free speech” as defined in the Act, the Court held, because the communications were not about “a matter of public concern,” even though ExxonMobil adduced testimony that the employee’s alleged misconduct gave rise to safety issues. And they did not implicate a protected exercise of the right of association among the employees who shared these communications because they did not involve “public participation”—a requirement not expressed in the words of the statute, but “read into” it by the Dallas Court, notwithstanding the Supreme Court’s recent condemnation in Lippincott v. Whisenhunt of another court’s inference of an unwritten “public-participation requirement” in the “free speech” component of the Act.
Coleman worked the night shift at an ExxonMobil storage facility. One of his jobs was to “gauge tanks,” to get an accurate assessment of the volume of liquid inside. Coleman was accused of having failed to “gauge” one tank in particular and, after some discussion and investigation, was terminated several weeks later for that failure. Coleman maintained he had gauged the tank in question and ultimately sued ExxonMobil and its employees who had participated in the investigation and termination, asserting defamation and related claims regarding what he contended was the false information contained in ExxonMobil’s internal communications regarding the matter. Invoking the TCPA, ExxonMobil and its employees moved to dismiss Coleman’s claims, arguing that the communications at issue constituted protected exercises of both the right of “free speech” and of association. The trial court denied the motion and the Dallas Court of Appeals affirmed, finding the TCPA inapplicable to the communications, conduct, and claims in question.
To qualify as an exercise of the right of “free speech” under the TCPA, a communication must be “made in connection with a matter of public concern,” which is further defined as an issue related to “health or safety,” “environmental, economic, or community well-being,” and the like. Exxon adduced evidence that failure to “gauge a tank” implicated matters of “public concern” because it could lead to a tank being overfilled or having a leak go undetected. But the Court concluded the communications here, regarding Coleman’s alleged nonperformance of his duties and not any actual results from that dereliction “involve nothing more than an internal personnel matter at Exxon” and therefore “were not a matter of public concern.” So, the “free speech” component of the TCPA did not apply.
The Act defines the exercise of the “right of association” as “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.” The Court concluded that definition is so broad that to apply it literally, with no qualifiers, “would lead to absurd results.” So, looking to the purpose of the Act—“to encourage and safeguard the constitutional rights of persons to … participate in government”—the Court decided that “the better approach is to read a public-participation requirement into the definition” of the exercise of the right of association protected under the Act. The Court acknowledged the Supreme Court’s recent warning in Lippincott “against ‘judicially amending’ the Act by adding words that are not there.” But it concluded such an inference was essential here for the statute to make practical sense. With that “public-participation requirement” included, the Court held the communications here did not fall within the definition of the protected right of association, and the TCPA therefore did not apply.
