Texas Supreme Court Rejects Compelled Self-Defamation Cause of Action By Terminated Employee

Exxon Mobil Corp. v. Rincones - Texas Supreme Court

Facts:  Gilberto Rincones ("Rincones") worked as a catalyst technician for WHM Custom Services ("WHM") and was assigned to work at one of Exxon's refineries.  (Exxon utilized WHM as an independent contractor and required its contractors, including WHM, to have written drug policies.)  When Rincones began working with WHM, he signed forms acknowledging the substance abuse policy and procedures and consented to drug and alcohol testing.  The Substance Abuse Program required random drug testing by a third party who was responsible for providing collection, testing, and reporting services.  Any employee who violated the Program's requirements (such as testing positive for a forbidden substance) was identified as "inactive".  Exxon had a policy in place that no employee who was identified as "inactive" could work at its refinery until completion of a rehabilitation process.

In April of 2008, Rincones was randomly selected for a drug test.  He subsequently was informed a few days afterward that he had tested positive for marijuana use although he maintained he did not use illegal drugs.  Rincones claimed the positive test was not his, complained of WHM's "questionable testing procedures he witnessed when he gave the sample", and requested he be allowed to retest with a new sample.  A WHM human resources manager told him that he had to work with the drug testing administrator, rather than WHM, to regain "active" status.  Instead of choosing to have the drug testing administrator retest the part of the original sample retained by the lab, Rincones went to a private doctor to have another test done.  Although that test result came back negative, WHM refused to accept it.

Rincones never attempted to complete a rehabilitation program and though he was never formally terminated, his "inactive" status precluded WHM from assigning him to other work.  When he applied for unemployment compensation with the Texas Workforce Commission in August of 2008, it was determined he had been discharged because of the results of his initial drug test but was still eligible for unemployment benefits.  Rincones subsequently brought suit against WHM, Exxon, and the drug testing administrator on various causes of action.  Ultimately, the trial court granted summary judgment against Rincones on his claims.  Rincones appealed and after withdrawing its first opinion and issuing a new one after a rehearing, the court of appeals revived a majority of Rincones's causes of action (including a compelled self-defamation claim against WHM). 

Holding:  (Note, this analysis looks only at the Supreme Court's review of the compelled self-defamation claim).

As a general rule, to establish a cause of action for defamation, four elements must be proven:  1) the publication of a false statement of fact to a third party; 2) that was defamatory concerning the plaintiff; 3) with the requisite degree of fault; and 4) damages (in some cases).  Publication is found to exist when the defamatory statement is communicated orally, in writing, or in print to a third person who is "capable of understanding their defamatory import and in such a way that the third person did so understand."  However, the Supreme Court acknowledged that some courts of appeals in the state (although the Dallas and San Antonio courts of appeals have hesitated to do so) have recognized an exception to that general rule.  An expanded theory provides that in defamation suits brought by former employees against their former employers, a former employee's publication to a third party can satisfy the publication element because the former employee is effectively "compelled" to publish the defamatory statement to a prospective employer when asked why he left his former job.  Under this expansion of the publication element, compelled self-publication holds the originator of a defamatory statement liable for damages caused by the statement where the originator knows, or should know, of circumstances whereby the defamed person was compelled to publish the statement.

In this case, the Court noted that as far back as 1945, it had held "that if the publication of which the plaintiff complains was consented to, authorized, invited or procured by the plaintiff, he cannot recover for injuries sustained by reason of the publication."  Consequently, the Court held that declining to recognize compelled self-defamation was a natural extension of this rule.

In addition, the Court held that if self-compelled defamation were recognized, it would discourage plaintiffs from mitigating damages to their own reputations.  A plaintiff would unjustly be able to unilaterally create an actionable tort against his employer if the employee disagreed with the employer's reason for firing him.  Allowing this to occur, along with potentially impinging upon an at-will employment doctrine, were held to be untenable reasons for adopting a self-defamation cause of action.

Judgment:  The Texas Supreme Court reversed the ruling of the Court of Appeals and held that the publication element of a defamation claim cannot be satisfied by a theory of "compelled" self-disclosure and consequently no cause of action for compelled self-defamation exists in Texas.

The Takeaway:  Several years ago when I was in law school, I participated in a moot court tournament with my twin sister in which we argued the final round before a panel of judges, including Judge Jeff Brown.  (Back then, he was a member of the 14th Court of Appeals in Houston.)  From what I recall, he certainly knew the law we argued before him and was a competent jurist.  Having read his majority opinion for the Court here, I can tell that has not changed.

Judge Brown's opening sentence in the opinion, "This is a complex employment-discrimination case implicating the Texas Commission on Human Rights Act and multiple common-law tort doctrines", was correct.  This certainly was one of the more complex and nuanced opinions I have read as of late, but one that I wanted to highlight for readers given the precedent that was established with this opinion.  For readers unfamiliar with the basics of a defamation cause of action, the Court does a nice job breaking down the basics of the four elements.  Of course this case hinged upon the publication factor and whether a former employee's publication to a third party can satisfy the publication element because the former employee is effectively "compelled" to publish the defamatory statement to a prospective employer when asked why he left his former job.  While some courts in Texas (and other states) have recognized this compelled self-defamation cause of action, I think the Court got it right in this instance.  Pointing out that adopting this expanded approach to the publication factor could lead to a slippery slope, was one of the paramount justifications the Court centered its reasoning on.  It is not unreasonable to think that a former employee would forgo trying to mitigate damages to his own reputation and instead would be content simply filing suit against his former employer.  The Court's decision to foreclose this "run around" for former employees was likely the right move...if for no other reason than to further attempt to impede the countless lawsuits overloading dockets in the state.

Majority Opinion Judge:  Judge Brown

Date:  May 26, 2017

Opinion:  hr.cch.com/ELD/ExxonRincones052617.pdf