After receiving some guidance from the Texas Supreme Court, the U.S. Court of Appeals for the Fifth Circuit has determined that a former law professor at Southern Methodist University will get another chance to bring defamation claims against some of her former colleagues.
In a nine-page opinion issued Wednesday, the court sent back to U.S. District Judge Ada Brown the lawsuit brought by Cheryl Butler, who alleges some of her former coworkers played a role in her tenure denial in 2016. The Fifth Circuit sent the state’s high court a certified question on the issue in August, asking whether the Texas Commission on Human Rights Act preempts an employee’s common law defamation or fraud claims against another employee when the basis of that claim mirrors claims being asserted against the employer.
The Texas Supreme Court heard oral arguments in the case in December and answered the certified question in May, explaining across 18 pages that Chapter 21 does not foreclose common law causes of action “against another employee when the claims are based on the same course of conduct.”
“Chapter 21 subjects only employers to statutory liability for covered discriminatory and retaliatory conduct and does not purport, either expressly or by implication, to immunize individuals from liability for their own tortious conduct merely because that conduct could also give rise to a Chapter 21 claim against a different defendant,” Justice Debra Lehrmann wrote for the court.
As expected, the Fifth Circuit’s Wednesday opinion followed that guidance.
“Considering the answer to our certified question, we reverse the district court’s dismissal of Butler’s state-law tort claims against the individual defendants as preempted by the TCHRA, and remand for further proceedings regarding those claims,” the panel wrote.
Butler sued the university and several former colleagues in 2016, bringing claims for defamation, fraud and conspiracy to defame. She appealed to the Fifth Circuit in January 2023, the same month Judge Brown dismissed her case with prejudice after finding that the TCHRA preempted the claims.
“Although the district court’s assessment of the TCHRA’s preemptive reach may ultimately prove correct, we are more circumspect,” the Fifth Circuit panel wrote in a 13-page opinion seeking input from the Texas Supreme Court. “Notably, in both cases in which the Supreme Court of Texas addressed the TCHRA’s preemption of common-law tort claims, the only claims at issue were asserted against the plaintiff-employee’s employer, not the plaintiff’s supervisor, manager, or other coworker.”
On appeal, Butler had also asked the court to route the case back to a different judge in the Northern District of Texas, arguing there was “considerable evidence that Judge Brown acted inappropriately and was otherwise incapable of acting neutrally in these proceedings.”
“It is not reasonable to expect that she could set aside her preconceptions of Butler and [Attorney Young] let alone cast aside prejudicial favoritism of SMU Law,” Butler argued in court filings, adding that she did not believe Judge Brown had conducted herself “in a manner expected of federal judges in any matter, let alone a civil rights case.”
But the defendants countered that Judge Brown had “diligently” applied the law to the facts of the case and that she had made no personal attacks on the plaintiff or plaintiff’s counsel.
The Fifth Circuit wrote that reassigning a case is an “extraordinary” remedy that it “rarely” invokes.
“We see insufficient reason and decline to do so here, but leave to the district court, on remand, to consider whether recusal may be warranted,” the panel wrote.
Ezra Ishmael Young of Ithaca, New York, who represents Butler, told The Texas Lawbook on Thursday that he and his client were pleased with the opinions from both the Texas Supreme Court and the Fifth Circuit.
“She remains grateful that the Fifth Circuit gave her the opportunity to be heard,” he said of Butler. “She appreciates that only a rare case gets a question certified to the Texas Supreme Court and wants to express gratitude to the judges who took the time to listen and hear her out.”
Young said he will be seeking rehearing at the Fifth Circuit on a discovery dispute issue not addressed by the court in its panel opinion.
Counsel for SMU and the individual defendants declined to comment.
Judges Leslie H. Southwick, Kurt D. Engelhardt and Cory T. Wilson sat on the panel.
Butler is also represented by Warigia M. Bowman of the University of New Mexico School of Law.
SMU is represented by Kirsten Castañeda of Alexander Dubose & Jefferson and Kim Askew of DLA Piper.
The case number is 23-10072.