AUSTIN – The Texas Supreme Court recently dismissed a lawsuit brought against Walgreens after an employee accused a customer of shoplifting.
The Texas Citizens Participation Act permits parties to seek early dismissal of legal actions based on the exercise of the right of free speech.
The case in question was brought by Pamela McKenzie, who was shopping in a Houston Walgreens in 2019 when she was detained in the store on suspicion of shoplifting.
According to the high court’s May 16 opinion, the Walgreens employee who called the police suspected McKenzie was the same person who had stolen from the store earlier that day and had returned. After reviewing surveillance video and determining that McKenzie was not the thief, the police released her.
McKenzie sued Walgreens for intentional infliction of emotional distress, alleging negligent hiring, training and supervision.
Walgreens moved to dismiss under the TCPA, arguing that McKenze’s claims are based on the employee’s alleged false report to the police, which is “a communication made in connection with a matter of public concern” and therefore protected under the act.
Justices found that had the employee been sued for damages resulting from that accusation, the TCPA would have applied, but were asked whether the employer may also take advantage of the act’s protections.
While a court of appeals held that it could not, the Supreme Court disagreed, holding that the TCPA does apply and that McKenzie failed to meet her evidentiary burden to avoid dismissal.
“The TCPA applies to any claim for negligent hiring, training, or supervision when at least one of the underlying tortious acts is based on or in response to the defendant’s exercise of the right of free speech,” the opinion states.
“Because the TCPA applies in this case, and because McKenzie has failed to establish a prima facie case of negligent hiring, training, or supervision, her claim must be dismissed.”
Walgreens is represented by The Law Office of Phil Griffis. The Lewis Law Group represents McKenzie.
Case No. 23-0955
