The Texas Supreme Court has agreed to consider a U.S. Fifth Circuit Court of Appeals certified question arising from an employee’s lawsuit against SMU University and other university employees alleging both statutory discrimination and common-law tort claims.
In Cheryl Butler v. Jennifer M. Collins; Steven C. Currall; Roy P. Anderson; Julie P. Forrester; Harold Stanley; Paul Ward; Southern Methodist University (No. 24-0606; granted August 9, 2024), Butler, a fifth-year professor at the SMU Dedman School of Law, was denied tenure. A year later, she filed suit, claiming that SMU and its employees discriminated and retaliated against her by denying her tenure application. The lawsuit alleged violations of the Texas Commission on Human Rights Act (TCHRA) (Tex. Lab. Code §§ 21.001–21.306), as well as making common-law claims against SMU for negligent supervision and against her co-workers for fraud, defamation, and conspiracy-to-defame. The Defendants moved to dismiss Plaintiff’s state-law claims under Fed. R. Civ. P. 12(b)(6). The district court granted the motion, finding Plaintiff’s state-law claims against the individual co-workers were preempted by the TCHRA since their “gravamen” was still “discrimination and retaliation in connection with the tenure and promotion process”. Plaintiff appealed.
The Fifth Circuit Court opined that since TCHRA only provides employees with statutory claims against their employers, it does not preempt separate or “factually independent” common-law claims against “individual wrongdoers” like Plaintiff’s co-workers (citing Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010); BC v. Steak N Shake Operations, Inc., 512 S.W.3d 276 (Tex. 2017)). However, as the Fifth Circuit noted, Waffle House and Steak N Shake only considered the TCHRA’s preemptive scope on the employee’s harassment and assault claims against individual co-workers. Consequently, the court expressed uncertainty as to whether pre-emption would apply to other torts such as fraud, defamation, and conspiracy-to-defame, which have their own common-law remedies.
The Post-Waffle House jurisprudence offered no further clarity. The Fifth Circuit reviewed conflicting Texas intermediate court of appeals’ opinions on the question of whether pre-emption applied if the employee’s state-law claims against co-workers arose from the same facts as the TCHRA claims against the employer. Unable to make an Erie guess, the Court certified the following question: “does the Texas Commission on Human Rights Act (“TCHRA”), Texas Labor Code § 21.001, et seq., preempt a plaintiff-employee’s common-law defamation and/or fraud claims against another employee to the extent that the claims are based on the same course of conduct as discrimination and/or retaliation claims asserted against the plaintiff’s employer?”
The Court has scheduled oral argument on October 31, 2024.
TCJL Research Intern Shaan Rao Singh contributed to the research for and composition of this article.
