Waters v. Southwest Airlines Company

Brief/Memorandum in Support

N.D. Tex.August 19, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION KATHERINE WATERS, § § Plaintiff § § v. § Civil Action No. 3:16-CV-01629-C § SOUTHWEST AIRLINES CO., § § Defendant § PLAINTIFF’S BRIEF IN SUPPORT OF PLAINTIFF’S RESPONSE TO DEFENDANT SOUTHWEST AIRLINES CO.’S MOTION TO DISMISS PURSUANT TO THE CITIZENS PARTICIPATION ACT Rod Tanner State Bar No. 19637500 rtanner@rodtannerlaw.com Matt Pierce State Bar No. 24088226 mpierce@rodtannerlaw.com Tanner and Associates, PC 6300 Ridglea Place, Suite 407 Fort Worth, Texas 76116-5706 817.377.8833 (phone) 817.377.1136 (fax) Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 1 of 32 PageID 1133 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page i Table of Contents Table of Authorities ........................................................................................................................ ii Statement of Facts ............................................................................................................................1 Argument and Authorities................................................................................................................4 I. SWA’s Removal of Waters’s Claims Was Improper and Remand Is Mandatory, So This Court Cannot Consider or Rule on SWA’s Motions to Dismiss ................4 II. Alternatively, the Court Should Deny the Motion to Dismiss Without Regard to the Merits Because the TCPA Does Not Apply to Federal Claims in Federal Court ...........................................................................................................7 III. SWA’s Motion to Dismiss Should Be Denied on Its Merits ...................................8 A. Overview of the TCPA ................................................................................8 B. The Court Should Not Apply the TCPA to This Private Employment Dispute .......................................................................................................10 C. In Any Event, Waters Presents Clear and Specific Prima Facie Evidence of the Essential Elements of Her Claims ...................................................15 1. There is Clear and Specific Prima Facie Evidence of the Essential Elements of Waters’s Claims of Defamation Per Se and Libel Per Se....................................................................................................15 2. There is Clear and Specific Evidence of the Essential Elements of Waters’s Gender Discrimination Claim .........................................22 3. SWA Has Not Established its Affirmative Defenses By a Preponderance of the Evidence ......................................................23 IV. The Court Should Award Waters Her Costs and Reasonable Fees Incurred in Responding to the Motion to Dismiss ....................................................................25 Conclusion .....................................................................................................................................25 Certificate of Service .....................................................................................................................26 Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 2 of 32 PageID 1134 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page ii Table of Authorities Cases Page Anderson v. Am. Airlines, Inc., 2 F.3d 590 (5th Cir. 1993) ............................................................................................... 5-6 Arana v. Ochsner Health Plan, 338 F.3d 433 (5th Cir. 2003) ...............................................................................................4 Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists, 390 U.S. 557 (1968) ........................................................................................................5 n.3 BNSF v. White, 548 U.S. 53 (2006) ..............................................................................................................21 Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003) .......................................................................................................5, n.3 Bennett v. Sw. Airlines Co., 493 F.3d 762 (7th Cir. 2007) .................................................................................................6 Bernhard v. Whitney Nat. Bank, 523 F.3d 546 (5th Cir. 2008) .................................................................................................5 Brown v. Wimberly, 2011 WL 5438994 (E.D. La. Nov. 9, 2011), aff’d, 477 Fed. App’x 214 (5th Cir. 2012) ......................................................................7 n.4 Bulletin Displays, LLC v. Regency Outdoor Advertising, Inc., 448 F.Supp.2d 1172 (C.D. Cal. 2006) ............................................................................... 7-8 Caterpillar, Inc. v. Williams, 482 U.S. 386 & n.6 (1987) ............................................................................................4, 6, 8 Charamlambopoulos v. Grammer, 2015 WL 390664 (N.D. Tex. Jan. 29, 2015) (Fitzwater, J.) ..........................................7 n.4 Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214 (Tex. App.-Houston [1st Dist.] 2014, no pet.) .......................10, 12 Cuba v. Pylant, 814 F.2d 701 (5th Cir. 2016) ...............................................................................................9 Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir. 1995)...................................................................................................6 Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 3 of 32 PageID 1135 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page iii Ehrhardt v. Electrical & Instrumentational of Louisiana, 220 F. Supp.2d 649 (E.D. Tex. 2002) ................................................................................22 Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ...............................................................................................................7 ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841 (Tex. App.-Dallas 2015, pet. filed Aug. 25, 2015) ..............................11 Fawcett v. Grosu, 2016 WL 3635765 (Tex. App.-Houston [14th Dist.] April 5, 2016, no pet.) .................18 Fields v. Keith, 174 F. Supp.2d 464 (N.D. Tex. 2001), aff’d, 273 F.3d 1099 (5th Cir. 2001) ....................24 First Southern Fed. Savings & Loan Assoc. of Mobile, Ala. v. First Southern Savings and Loan Assoc. of Jackson County, Miss., 614 F.2d 71 (5th Cir. 1980) .................................................................................................7 Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 4 (1983) .............................................................................................................6 Harper v. Best, 2016 WL 1613546, *5 (Tex. App.-Waco April 21, 2016, no pet.) ...................................9 Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164 (5th Cir. 2009) .........................................................................................7 n.4 Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2009) ...............................................................................................7 In re Lipsky, 460 S.W.3d 579 (Tex. 2015) ..........................................................................10, 16, 20 n.12 Johnson v. Baylor Univ., 214 F.3d 630 (5th Cir. 2000) ...............................................................................................6 Jones v. Dallas County, 47 F.Supp.3d 469 (N.D. Tex. 2016) (Fitzwater, J.) ...........................................................22 Lippincott v Whisenhunt, 462 S.W.3d 507 (Tex. 2015) ..............................................................................................11 Lykos v. Culbertson, 790 F.3d 608 (5th Cir. 2015) ...............................................................................................7 Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 4 of 32 PageID 1136 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page iv McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007) .............................................................................................22 McWhorter v. Barre, 132 S.W.3d 354 (Tenn. Ct. App. 2004) .............................................................................21 Metro. Life Ins. v. Taylor, 481 U.S. 58 (1987) .........................................................................................................5 n.3 New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321 (5th Cir. 2008) ...............................................................................................5 Randall’s Food Mkts, Inc. v. Johnson, 690 S.W.2d 691 (Tex. 1995) ..............................................................................................20 Sullivan v. Am. Airlines, Inc., 424 F.3d 267 (2d Cir. 2005).................................................................................................5 Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957) .............................................................................................................8 Thompson v. City of Waco, Texas, 764 F.3d 500 (5th Cir. 2014), reh’g denied en banc, 779 F.3d 343 (2015) .......................23 Un Hui Nam v. Regents of the University of California, 2016 WL 4098761 (Cal. Ct. App., July 29, 2016) .............................................................13 Williams v. Cordillera Comm., Inc., 2014 WL 2611746 (S.D. Tex. 2014) .............................................................................7 n.4 Statutes, Regulations and Rules 12 U.S.C. §§ 85-86 ....................................................................................................................5 n.3 28 U.S.C. § 1331 ..............................................................................................................................4 28 U.S.C. § 1441 ..............................................................................................................................5 28 U.S.C. § 1441(b) .........................................................................................................................5 28 U.S.C. § 1447(c) .........................................................................................................................6 28 U.S.C. § 1652 ..............................................................................................................................7 29 U.S.C. § 1132(a) ...................................................................................................................5 n.3 45 U.S.C. §§ 151-88 ........................................................................................................................4 49 U.S.C. § 44701 et seq..................................................................................................................4 Tex. Civ. Prac. & Rem. Code § 27.001 ..................................................................................... 9-12 Tex. Civ. Prac. & Rem. Code § 27.002 ...........................................................................................9 Tex. Civ. Prac. & Rem. Code §§ 27.003 .............................................................................9, 11, 13 Tex. Civ. Prac. & Rem. Code § 27.005 ..................................................................................... 9-10 Tex. Civ. Prac. & Rem. Code § 27.006 .............................................................................10, 15 n.9 Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 5 of 32 PageID 1137 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page v Tex. Civ. Prac. & Rem. Code § 27.009(b) .....................................................................................25 Tex. Civ. Prac. & Rem. Code § 73.001 .........................................................................................16 Tex. Civ. Prac. & Rem. Code § 73.005(a) .....................................................................................20 Tex. Lab. Code § 21.001 et seq. ......................................................................................................4 Fed. R. Civ. P. 10(c) ..................................................................................................................1 n.1 Treatises R. Sherwin, Clones, Thugs, ‘N (Eventual?) Harmony: Using the Federal Rules of Civil Procedure to Simulate a Statutory Defamation Defense and Make the World Safe from Copyright Bullies, 64 DePaul L.R. 823, 852 (Spring 2015) .......................................................................8 n.5 Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 6 of 32 PageID 1138 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 1 Plaintiff, Katherine Waters, files this brief in support of her response to Defendant Southwest Airlines Co.’s Motion to Dismiss Pursuant to the Texas Citizens Participation Act (Motion to Dismiss) [Doc. 11] and would show the Court as follows. Statement of Facts1 Plaintiff Katherine Waters, an experienced, highly trained, and commended aviator, has been employed as a pilot by Defendant Southwest Airlines, Co. (SWA) since 1995, and has held the rank of Captain since 2001. [Decl. ¶¶ 1-4] She is one of approximately 320 women pilots out of approximately 8,400 total pilots employed at SWA (only 3.8 percent). [Decl. ¶ 2] On May 5, 2015, as part of a training session in Dallas, Waters performed an annual Check Ride with Captain John Kowalczyk, a Check Airman for SWA, First Officer Tory Wentworth, and other crew members. [Decl., ¶ 7; SWA App. p. 6]2 Later that same day, she contacted SWA’s Training Center to express some safety concerns she had about SWA’s new electronic flight bags. [Decl. ¶ 7-8] She was connected to Jennifer Wise, to whom she expressed her specific concerns as to how the electronic flight bags were detrimental to safety. [Decl. ¶ 8] Thereafter, Assistant Chief Pilot Andrew Kennedy unexpectedly called Waters on May 22, 2015 - almost three weeks after Waters had contacted the Training Center - to inform her that she had been taken off active flight status and that she had been ordered to undergo a fitness for duty (FFD) evaluation. [Decl. ¶ 10] Kennedy asserted without elaboration that she had been grounded based on comments that she had allegedly made to a member of the training staff 1 Waters’s response to the Motion to Dismiss is supported by the Declaration of Katherine Waters, included in the Appendix in support of this Response, which is being filed contemporaneously with this response. A condensed version of the facts is presented here. Waters’s Declaration, which contains a full description of the underlying facts, is incorporated herein by reference, and is cited herein as Decl. ___. Waters also incorporates by reference all allegations of fact set forth in her Original Petition [Doc. 1-2 pp. 6-17] as if those facts were set forth herein verbatim. Fed. R. Civ. P. 10(c). 2 Citations to SWA App. ___ are to the pages of the Appendix in Support of Defendant’s Motion to Dismiss Pursuant to the Texas Citizens’ Participation Act. [Doc. 13] Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 7 of 32 PageID 1139 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 2 during a facilitated debriefing following the May 5 training event, and also said that the next step in the process would be a formal meeting in Orlando. Id. Waters met with Kennedy and Chief Pilot John Fluhart in Orlando to discuss the notice of grounding and FFD evaluation on May 26, 2015. [Decl. ¶ 11] Also present were First Officer Ron Hodges and newly appointed First Officer Amour Geffen, Orlando representatives of Southwest Airlines Pilots Association (SWAPA). Id. At that meeting, Waters asked Kennedy and Fluhart what comments she had made, and they replied that they were not aware of the substance of the comments and that they were only messengers. Id. Fluhart then articulated a new explanation for SWA’s action, claiming that a First Officer with whom Waters had taken a recent check ride had expressed concerns about her to the Check Airman. Id. Kennedy and Fluhart acknowledged that SWA had provided them with only vague reasons for the directive. They told Waters that in the FFD evaluation, the doctor would make a mental evaluation of her; then, to make sure that she could handle the “stress,” she would be directed to undergo Supervised Line Flying (SLF) with a Check Airman. [Decl. ¶ 12] Upon hearing that Waters would have to again undergo flight testing after just having passed the test in May 2015, Hodges protested and stated: “Wait, she just passed a check ride. This isn’t about her flying. It’s about comments she made.” [Decl. ¶ 13] Both Fluhart and Kennedy agreed and volunteered that they must admit that the reasons for Waters’s FFD evaluation were quite vague. Id. Through Hodges, Waters sought an explanation for the decision to ground her. Hodges initially told her that he was unable to obtain any meaningful information from SWA, but in late June 2015, over a month later, he related to her that Randy Deutschendorf, SWA’s Systems Chief Pilot, had informed him that the company had lost faith in her ability to manage stress Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 8 of 32 PageID 1140 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 3 while acting as a captain. [Decl. ¶ 14] Waters went through an arduous examination administered by Dr. Edward R. Davidson on July 23-24, 2015, passing every test easily with no indication whatsoever of psychological instability or an inability to manage stress effectively. [Decl. ¶¶ 15-16] Consequently, Dr. Davidson deemed her fit for duty without any reservations. [Decl. ¶ 16] Three days after Dr. Davidson’s evaluation was completed, Fluhart informed Waters that she was released for duty. [Decl. ¶ 17] Before she was allowed to resume flying, SWA also required her to travel to Dallas to perform three take-offs and landings in a simulator on August 4, 2015. Id. These were not routine take-offs and landings which are required by the Federal Aviation Administration every 90 days; instead, it was an actual training event designated a Level 2 exercise involving the use of emergency procedures. Id. No one told her about this directive in advance, yet she completed all simulations successfully. Id. When she asked why she was required to perform this elevated level of training, the instructor, John Cundiff, went to the manager of instructors, Craig Shaw, for an explanation that was so confusing, that Cundiff himself did not understand it. Id. In fact, Cundiff could not explain why Waters was doing the training at all since it had not been 90 days since she had flown. Id. SWA next required Waters to perform a Supervised Line Flight, during which her performance was evaluated on a pass/fail basis for her next three-day trip. Waters conducted the SLF on August 7, 8 and 9, 2015, with Captain John Cowart as her First Officer on every flight. [Decl. ¶ 18] At that time Cowart and Waters discussed why she had been placed on SLF. [Decl. ¶ 19] According to Captain Cowart, SWA management had told him that she had demonstrated deficiencies in the simulator. Id. The fact that Cowart had knowledge of the matter and stated to her that management had (falsely) told him that she had demonstrated deficiencies in the Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 9 of 32 PageID 1141 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 4 simulator (she had in fact passed all simulator training exercises) indicated that SWA had published statements about her job performance to other employed pilots, including Cowart. Id. Also, Waters was surprised to hear that Cowart had been told about her deficiencies in the simulator, because that had never been mentioned to her previously as a reason for my having been placed on SLF. Id. Argument and Authorities I. SWA’s Removal of Waters’s Claims Was Improper and Remand Is Mandatory, So This Court Cannot Consider or Rule on SWA’s Motions to Dismiss When SWA removed Waters’s claims to federal court on June 16, 2016, it asserted in its notice of removal [Doc. 1] that Waters’s claims for statutory libel per se, common law defamation per se, and gender discrimination in violation of the Texas Commission on Human Rights Act, Tex. Lab. Code § 21.001 et seq. (TCHRA) are each completely preempted by the Railway Labor Act, 45 U.S.C. §§ 151-88 (RLA), and Federal Aviation Act, 49 U.S.C. § 44701 et seq. (FAA) and its corresponding regulations. SWA argued that this purported complete preemption made removal appropriate because the Court was presented with two federal questions: “RLA preemption and field preemption pursuant to federal aviation law.” [Doc. 1 p. 2] SWA asserted that removal was appropriate solely on the ground of federal preemption. However, as Waters established in her Motion to Remand [Doc. 7], SWA was not entitled to removal of her state law claims. In order to remove a state law claim to federal district court, the defendant carries the burden of proving that the federal court has original jurisdiction over the claim based solely on the plaintiff’s pleadings. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 & n.6 (1987) (quoting 28 U.S.C. § 1331); Arana v. Ochsner Health Plan, 338 F.3d 433, 437 (5th Cir. 2003). Waters’s Original Petition [Doc. 1-2 pp. 6-17] alleges no federal claim and makes no reference to any federal statute, case law or legal doctrine. Instead, it alleges Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 10 of 32 PageID 1142 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 5 exclusively state law causes of action on its face, so it was not removable from state court. SWA’s assertion of RLA and FAA preemption is not sufficient to create removal jurisdiction. Complete preemption, which is rare, is a jurisdictional doctrine that provides a basis for removal of state law claims to federal district court; on the other hand, ordinary preemption is merely an affirmative defense that can be asserted against a state law claim. New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 331 (5th Cir. 2008). As explained in Waters’s motion to remand, preemption under the RLA and FAA is not complete; it is merely a federal defense. In determining whether a federal statute completely preempts a state law claim, the Court must determine whether such statute provides “the exclusive cause of action” for the asserted state law claim; if so, the state law claim “is in reality based on federal law . . . [and] is then removable under 28 U.S.C. § 1441(b), which authorizes any claim that ‘arises under’ federal law to be removed to federal court.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003); Bernhard v. Whitney Nat. Bank, 523 F.3d 546, 553 (5th Cir. 2008). The Supreme Court has found complete, jurisdictional preemption in only three federal statutes.3 In contrast, there is no complete preemption under the RLA, because the RLA does not provide the exclusive federal cause of action for state law claims. Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 276 (2d Cir. 2005) (“Once we recognize that a state-law-based RLA minor dispute cannot be brought within the original jurisdiction of the federal courts and is thus not removable under § 1441, it becomes clear that the RLA does not completely preempt state-law claims that come within its scope.”); Anderson v. Am. Airlines, Inc., 2 F.3d 590, 598 (5th Cir. 1993). Similarly, the FAA and its corresponding regulations do not provide the exclusive federal 3 See Beneficial National Bank, 539 U.S. at 10-11 (Sections 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85-86); Metro. Life Ins. v. Taylor, 481 U.S. 58, 66-67 (1987) (Section 502(a) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)); Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists, 390 U.S. 557, 560 (1968) (Section 301 of the Labor Management Relations Act). Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 11 of 32 PageID 1143 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 6 cause of action for any of Waters’s claims, so there is no complete FAA preemption. Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir. 2000); Bennett v. Sw. Airlines Co., 493 F.3d 762, 763 (7th Cir. 2007) (rejecting SWA’s assertion of complete FAA preemption as grounds for removal because “it has long been understood that preemption is an affirmative defense. An argument that one or another state law is preempted does not permit removal, because the arising-under jurisdiction depends on the claim for relief rather than potential defenses.”). Hence, in its notice of removal SWA merely asserted the federal defense of ordinary preemption, which is not an appropriate basis for removal of well-pleaded state law claims to a federal district court. See Anderson, 2 F.3d at 593 (“The presence of a federal defense will not usually create federal question jurisdiction. Thus, removal on the basis of a federal defense, such as pre-emption, is generally improper.”) (citing Caterpillar, 482 U.S. at 392-93). Because removal of Waters’s claims was improper, the Court must remand this civil action to state court. 28 U.S.C. § 1447(c) (after removal to federal district court, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”) (emphasis added). If a district court lacks subject matter jurisdiction over a removed action, it follows that the court also lacks the jurisdiction to consider or rule on any motion to dismiss the action. Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 4 (1983). As the Third Circuit Court of Appeals explained: When the doctrine of complete preemption does not apply, but the plaintiff's state claim is arguably preempted under [a federal statute], the district court, being without removal jurisdiction, cannot resolve the dispute regarding preemption. It lacks power to do anything other than remand to the state court where the preemption issue can be addressed and resolved. Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 355 (3d Cir. 1995) (citations omitted). This Court plainly lacks jurisdiction to decide SWA’s motion to dismiss under the TCPA. The Court must remand Waters’s claims without considering or ruling on SWA’s motion. It Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 12 of 32 PageID 1144 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 7 should also award Waters all fees and costs incurred in connection to this improper removal. II. Alternatively, the Court Should Deny the Motion to Dismiss Without Regard to the Merits Because the TCPA Does Not Apply to Federal Claims in Federal Court SWA gives short shrift to the fundamental question of whether the TCPA even applies in this federal court, especially given that the court is alleged to have removal jurisdiction based solely on the existence of federal questions. SWA relegates its discussion of the issue to a footnote: “Under the Erie doctrine, federal courts within the Fifth Circuit routinely enforce the TCPA as well as other similar state Anti-SLAPP statutes.” [Doc. 12 p. 8, n.11] (citations omitted) However, SWA overlooks the well-established fact that the Erie doctrine is inapplicable to issues or claims governed by federal law. First Southern Fed. Savings & Loan Assoc. of Mobile, Ala. v. First Southern Savings and Loan Assoc. of Jackson County, Miss., 614 F.2d 71, 73 (5th Cir. 1980); see also Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); 28 U.S.C. § 1652. Accordingly, it is unsurprising that each of the cases SWA cites in footnote 11 in support of the proposition that the TCPA applies in federal court is a diversity jurisdiction case involving claims governed by state law. Moreover, in those diversity jurisdiction cases in which the Fifth Circuit has applied the TCPA,4 the court has merely assumed that the TCPA applies in federal court, without deciding its applicability. Lykos v. Culbertson, 790 F.3d 608, 631 (5th Cir. 2015) (“[W]e again pretermit the fundamental issue of [the TCPA’s] applicability in federal court.”). In any event, regardless of their application in diversity jurisdiction cases, it is clear that state anti-SLAPP statutes such as the TCPA do not apply to federal claims in federal court. Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2009); Bulletin Displays, LLC v. Regency 4 See Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 170 (5th Cir. 2009) (defamation governed by Louisiana law); Brown v. Wimberly, 2011 WL 5438994 (E.D. La. Nov. 9, 2011), aff’d, 477 Fed. App’x 214 (5th Cir. 2012) (same); Charamlambopoulos v. Grammer, 2015 WL 390664 (N.D. Tex. Jan. 29, 2015) (Fitzwater, J.) (state law claims for fraud, defamation, negligence, intentional infliction of emotional distress, and malicious prosecution); Williams v. Cordillera Comm., Inc., 2014 WL 2611746 (S.D. Tex. 2014) (TCPA applied to state law defamation claims in diversity case). Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 13 of 32 PageID 1145 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 8 Outdoor Advertising, Inc., 448 F.Supp.2d 1172, 1180 (C.D. Cal. 2006) (applying anti-SLAPP statute to federal question claims in federal court would frustrate substantive federal rights).5 Assuming for purposes of argument that this Court does have removal jurisdiction that would allow it to consider SWA’s motion, that jurisdiction is necessarily premised on the RLA or the FAA’s complete preemption of Waters’s claims - there is no allegation of diversity of citizenship; SWA does not assert that there are any federal questions other than those presented through its affirmative defense of preemption; and ordinary preemption does not give rise to removal jurisdiction. If the RLA and the FAA completely preempt Waters’s state law claims, then those claims are governed by federal law, and the TCPA cannot apply. Caterpillar, 482 U.S. at 393 (“Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.”); see also Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456 (1957) (“the substantive law to apply in suits under § 301(a) [of the LMRA] is federal law, which the courts must fashion from the policy of our national labor laws”). Conversely, if the RLA and the FAA do not completely preempt the claims, this case must be remanded. SWA cannot have it both ways: either Waters’s claims are state claims and must be remanded to state court, or they are completely preempted by federal law, and thus the TCPA has no application. III. SWA’s Motion to Dismiss Should Be Denied on Its Merits A. Overview of the TCPA The TCPA, enacted in 2011, allows a defendant to file a motion to dismiss at an early stage where the suit is based on the defendant’s lawful exercise of its right to free speech, 5 See also R. Sherwin, Clones, Thugs, ‘N (Eventual?) Harmony: Using the Federal Rules of Civil Procedure to Simulate a Statutory Defamation Defense and Make the World Safe from Copyright Bullies, 64 DePaul L.R. 823, 852 (Spring 2015) (“No court has ever applied such a law [state anti-SLAPP statutes] to a federal cause of action, and in fact, courts have uniformly held that anti-SLAPP laws only apply to state law claims.”) (emphasis added). Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 14 of 32 PageID 1146 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 9 petition, or association. See Tex. Civ. Prac. & Rem. Code §§ 27.003(a), (b). The stated purpose of the statute “is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Id. § 27.002. “The TCPA’s purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits.” Harper v. Best, 2016 WL 1613546, *5 (Tex. App.-Waco April 21, 2016, no pet.). The determination of a motion to dismiss under the TCPA is a two-step inquiry. Cuba v. Pylant, 814 F.2d 701, 711 (5th Cir. 2016). First, the defendant has the initial burden to show by a preponderance of the evidence that the legal action is based on, related to, or in response to the defendant's exercise of (1) the right of free speech, (2) the right to petition, or (3) the right of association. Tex. Civ. Prac. & Rem. Code § 27.005(b). The definition of the right of free speech has two components: (1) the exercise must be made in a communication and (2) the communication must be made in connection with a matter of public concern. Id. § 27.001(3). If the defendant meets its threshold burden of establishing that the statute applies, the burden shifts to the plaintiff to demonstrate by clear and specific evidence a prima facie case for each essential element of the challenged claim in order to defeat the motion. Id. § 27.005(c). The Fifth Circuit recently noted that Texas courts have interpreted the clear and specific evidence standard of the TCPA as “more like a pleading requirement than a summary judgment standard.” Cuba, 814 F.3d at 711. For example, a non-movant need not prove up damages, but merely provide “a clear explanation of the factual basis of the claim.” Id. at 713. Thus, in Cuba, the court found it sufficient that the non-movant described specific ways in which the conduct had allegedly injured him, such as “reputational harm” and “emotional and physical distress.” Id. Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 15 of 32 PageID 1147 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 10 Texas courts have made it clear that a TCPA litigant’s evidentiary burden may be “satisfied by either detailed pleading or supporting affidavits.” Id. at 711; see also Tex. Civ. Prac. & Rem. Code § 27.006. The Court must view the pleadings and evidence in the light most favorable to the non-movant. Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214-15 (Tex. App.-Houston [1st Dist.] 2014, no pet.). The Texas Supreme Court has clarified that the TCPA “does not impose an elevated evidentiary standard or categorically reject circumstantial evidence.” In re Lipsky, 460 S.W.3d 579, 587 (Tex. 2015). The plaintiff need only “provide enough detail to show the factual basis for its claim.” Id. at 591. Clear and specific evidence for purposes of the TCPA includes relevant circumstantial evidence, so direct evidence of each essential element of the claims is not necessary. Id. “In a defamation case that implicates the TCPA, pleadings and evidence that establishes the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss.” Id. If the plaintiff does not meet her minimal burden, the statute mandates dismissal. Tex. Civ. Prac. & Rem. Code § 27.005(b). Additionally, if the plaintiff does meet her burden, the defendant can still show it is entitled to dismissal if it can prove each of the essential elements of a valid defense by a preponderance of the evidence. Id. § 27.005(d). B. The Court Should Not Apply the TCPA to This Private Employment Dispute The threshold issue under the TCPA is whether this case is appropriate for application of the TCPA at all. SWA premises the application of the TCPA entirely on its right of free speech concerning aviation safety, a matter of public concern.6 [Doc. 12 pp. 8-9]. See Tex. Civ. Prac. & Rem. Code § 27.001(3) (the “exercise of free speech” is defined as “a communication made in 6 In its Answer, SWA also pled the TCPA’s protection based on the rights of petition and association. [Doc. 1-2, p. 3, ¶ 10] However, SWA did not assert those rights as grounds for its Motion to Dismiss and did not brief those issues in its supporting brief, so they are waived as grounds for dismissal here. Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 16 of 32 PageID 1148 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 11 connection with a matter of public concern”), § 27.001(7)(A) (defining “[m]atter of public concern” to include an issue relating to “health or safety”), § 27.003(a) (“If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action”).7 In Lippincott v Whisenhunt, 462 S.W.3d 507 (Tex. 2015), the Texas Supreme Court held that the defendant medical facility administrators successfully demonstrated the applicability of the TCPA to the plaintiff’s state common law claims where their e-mails in question related to whether the plaintiff nurse anesthetist had properly provided medical services to patients because “the provision of medical services by a health care professional constitutes a matter of public concern.” Id. at 509-10. The e-mails included allegations that the anesthetist failed to provide adequate coverage, administered a different narcotic than was ordered, falsified a scrub tech record and violated the company’s sterile protocol. Id. The instant case is distinguishable from Lippincott in that here, there were no allegations made (nor could allegations be made) that Waters had failed to perform her job in a manner that threatened the health and safety of SWA’s passengers, but rather only vague and uncorroborated allegations as to her mental state based on innocuous comments she made to Jennifer Wise on May 5, 2015, and Kowalczyk’s subjective perceptions of her lack of cooperation with the debrief earlier that same day. In ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841 (Tex. App.-Dallas 2015, pet. filed Aug. 25, 2015), the defendant employer terminated the plaintiff’s employment after he failed to properly gauge a petroleum products additive tank. Id. at 842. He sued the employer and his two former supervisors for defamation, and the defendants moved for dismissal under the 7 Waters does not dispute that aviation safety can constitute a matter of public concern. Indeed, this lawsuit originated with Waters’s insistence on sticking her neck out for the sake of aviation safety by reporting her safety concerns to SWA. What Waters does challenge is that her private employment dispute with SWA is necessarily a matter of public concern as to which SWA has a protected right of free speech, even though the employment dispute may be tangentially related to health and safety. Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 17 of 32 PageID 1149 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 12 TCPA on the grounds that the plaintiff’s action was in response to the exercise of their rights of free speech and association. Id. Coleman responded that the TCPA did not apply to his defamation claim because the TCPA “is limited to matters involving the public at large.” Id. at 844. Examining the statute, the court concluded that speech under the TCPA must involve a “Matter of public concern.” Id. at 845; Tex. Civ. Prac. & Rem. Code § 27.001(3), (7). The court concluded that the mere fact that the potential consequences of an employee’s failure to perform his job duties properly include health and safety concerns does not transform a private employment dispute into a matter of public concern under the TCPA. Id. at 846. The court thus held that the TCPA did not apply to those claims: “The communications at issue involve nothing more than an internal, personnel matter at Exxon and were not a matter of public concern.” Id. at 846. This was so despite the fact that the communications in question had a tangential effect on health and safety. Id. Similarly, all communications underlying Waters’s claims in the instant case were part of a private employment matter. The public had not been threatened by Waters’s allegedly concerning behaviors in any way. Thus, despite any tangential connection that the potential consequences of Waters’s theoretical failure to perform her job might have to aviation safety, the TCPA does not apply to her claims. In the context of another employment dispute, the court in Chenier Energy, Inc. v. Lofti reasoned that the purpose of the TCPA indicates that there must be some nexus between the communication in question and “the generally recognized parameters of First Amendment protections.” 449 S.W.3d 210, 216 (Tex. App.-Houston [1st Dist.] 2014, no pet.). Otherwise, the court noted, any communication that is part of a decision-making process in an employment dispute could be used to draw private suits implicating only private issues under the TCPA’s dismissal procedures. Id. at 216-17. The court held that the defendants had failed to meet their Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 18 of 32 PageID 1150 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 13 burden of establishing that the communications at issue fell within the statutory definition of exercise of the right of association; accordingly, the court denied their motion to dismiss the plaintiff’s tortious interference claim pursuant to the TCPA. Id. at 217. The TCPA is not applicable to any of Waters’s three claims, and it is especially clear that the statute does not apply to her TCHRA gender discrimination claim. Waters’s TCHRA is plainly not based on, related to, or in response to SWA’s exercise of any protected right. Tex. Civ. Prac. & Rem. Code § 27.003(b). Instead, it is based on Waters having been treated differently than male pilots at SWA in similarly situated circumstances by, among other things, being referred for an FFD exam and grounded for vague and purported insignificant reasons. Although not binding, the court’s well-reasoned decision in Un Hui Nam v. Regents of the University of California, 2016 WL 4098761 (Cal. Ct. App., July 29, 2016), contains useful and thoughtful analysis of the application of state anti-SLAPP statutes in the context of employment discrimination claims. In that case, an anesthesiology resident sued a medical center for discrimination and sexual harassment, among other claims. She claimed her many issues with her employer began after she had raised a concern as to the adverse effect on patient well-being of a policy that seemed to prohibit residents from intubating patients. Id. at **2-4. The defendant moved to strike the complaint under the California anti-SLAPP statute, and the trial court denied the motion, noting: “You can’t hide that kind of conduct [discrimination and harassment] behind the concept that this is protected speech because ultimately in every employment situation the only way someone does anything is if they speak.” Id. at *4. Affirming the trial court’s decision, the court of appeals reasoned that to conclude that an anti-SLAPP statute applies to a plaintiff’s discrimination claim without first considering the employer’s motive in conducting its allegedly protected investigative activities would intolerably Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 19 of 32 PageID 1151 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 14 burden victims of employment discrimination: To conclude otherwise would subject most, if not all, harassment, discrimination, and retaliation cases to motions to strike. Any employer who initiates an investigation of any employee, whether for lawful or unlawful motives, would be at liberty to claim that its conduct was protected and thereby shift the burden of proof to the employee, who, without the benefit of discovery and with the threat of attorney fees looming, would be obligated to demonstrate the likelihood of prevailing on the merits. Such a result is at odds with the purpose of the anti- SLAPP law, which was designed to ferret out meritless lawsuits intended to quell the free exercise of First Amendment rights, not to burden victims of discrimination and retaliation with an earlier and heavier burden of proof than other civil litigants and dissuade the exercise of their right to petition for fear of an onerous attorney fee award. Id. at *8. The court in further noted that anti-SLAPP statutes were not likely intended to quash employment discrimination claims; rather, they were intended to prevent Goliath from beating David into submission with the threat of the financial burden of defending a lawsuit: Moreover, we question whether plaintiff’s lawsuit for harassment and retaliation should be characterized as a SLAPP. The quintessential SLAPP is filed by an economic powerhouse to dissuade its opponent from exercising its constitutional right to free speech or to petition. The objective of the litigation is not to prevail but to exact enough financial pain to induce forbearance. As its name suggests, it is a strategic lawsuit designed to stifle dissent or public participation. It is hard to imagine that a resident’s complaint alleging retaliatory conduct was designed to, or could, stifle the University from investigating and disciplining doctors who endanger public health and safety. The underlying lawsuit may or may not have merit that can be tested by summary judgment, but it is quite a stretch to consider it a SLAPP merely because a public university commences an investigation. Id. at *10 (emphasis added). Significantly, the court further noted that it has been suggested that “[t]he cure has become the disease-SLAPP motions are now just the latest form of abusive litigation,” and that “the disease would become fatal for most harassment, discrimination, and retaliation actions against public employers if the court were to accept [the employer’s] misguided reading of the anti-SLAPP law.” Id. at *1 (citation omitted). Analogously, it is difficult to imagine SWA, a massive corporation, ever being in danger Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 20 of 32 PageID 1152 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 15 of being chilled from investigating valid health and safety issues by reason of a threatened employment discrimination or defamation lawsuit by any of its individual pilots. SWA is simply taking advantage of the TCPA as a subterfuge in an attempt to rid itself of the lawsuit. It should not be countenanced in its attempt to prevent Waters from pursuing her meritorious claims and having her day in court by hiding behind its assertion of health and safety concerns, especially when SWA has provided so little explanation for why it claimed to have such alleged concerns in the first place.8 As in Un Hui Nam, the gravamen of Waters’s TCHRA claim is not any allegedly protected speech that incurred in SWA’s internal decision-making in connection with grounding her and forcing her to submit to the FFD, but gender discrimination. See 2016 WL 4098761, *6. C. In Any Event, Waters Presents Clear and Specific Prima Facie Evidence of the Essential Elements of Her Claims9 Even if the court were to find that the TCPA does apply here, the Motion to Dismiss should be denied because Waters has presented clear and specific prima facie evidence of each of the essential elements of her claims sufficient to survive the TCPA Motion to Dismiss. 1. There is Clear and Specific Prima Facie Evidence of the Essential Elements of Waters’s Claims of Defamation Per Se and Libel Per Se The elements of Waters’s common law defamation per se claim are (i) SWA published a statement concerning Waters, (ii) that was defamatory, (iii) intentionally or while acting with 8 Moreover, not only is the evidence SWA offers as to its alleged “health and safety concerns” about Waters flimsy, it is also refuted and illuminated by Waters in her Declaration, and it is particularly suspect in light of SWA’s continually changing explanations for the requirements it imposed on Waters. See Decl., ¶¶ 32-37. Waters should be permitted to test the veracity of SWA’s vague justifications for SWA’s sending Waters for an FFD exam and grounding her by cross-examination at trial. 9 The TCPA authorizes the Court to allow specified and limited discovery relevant to the motion. Tex. Civ. Prac. & Rem. Code § 27.006(b). Waters’s Declaration establishes good cause for limited discovery of SWA’s decision makers as to the veracity and sufficiency of their purported basis for grounding Waters and forcing her into an unwarranted FFD exam, and the alleged basis for the false statements about her not being psychologically fit for duty. Accordingly, should the Court determine that the TCPA applies here and that Waters has not adduced sufficient “clear and specific evidence” as to the essential elements of each of her claims, Waters hereby moves the Court to allow her a reasonable period of time to conduct discovery limited to the issues presented by the Motion to Dismiss. Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 21 of 32 PageID 1153 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 16 negligence regarding the truth of the statement; and (iv) the statements constituted defamation per se. Lipsky, 460 S.W.3d at 593. Because defamation per se refers to statements that are so harmful that general damages may be presumed, the plaintiff need not plead and prove damages. Id. “General damages include non-economic losses, such as the loss of reputation and mental anguish.” Id. Statements that are defamatory per se under Texas common law include “[r]emarks that adversely reflect on a person’s fitness to conduct his or her business or trade.” Id. at 596. Similarly, the elements of Waters’s statutory libel per se claim are (i) a defamation, (ii) expressed in written or other graphic form, (iii) that tends to blacken the memory of the dead; injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury; impeach any person's honesty, integrity, virtue, or reputation; or publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury. Tex. Civ. Prac. & Rem. Code § 73.001. As to the first essential element of defamation - publication - SWA published several statements, both oral and written, asserting that Waters was psychologically unstable, and thus mentally unfit to perform her job duties as a pilot. [Decl. ¶ 17] SWA’s written statements concerning the matter include (i) a letter from Vice President of Flight Operations Craig Drew to Paul Jackson, Randy Deutschendorf, and John Fluhart dated May 22, 2015 [SWA App. 419], and (ii) a written Notification of Meeting Requirement of the same date, presented by Fluhart to Waters. [SWA App. 418; Decl. ¶ 20] Both documents falsely referenced alleged concern with her psychological fitness for duty. The oral defamatory statements that Waters alleges SWA published include Fluhart’s false statements to Waters and Kennedy on May 26, 2015 that Waters was “emotionally unstable,” false statements by Deutschendorf and to Hodges in June 2015 that the company had reason to lose faith in Waters’ ability to manage stress, and the false Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 22 of 32 PageID 1154 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 17 statement to Cowart that Waters had difficulties in the simulator in May 2015. [Decl. ¶ 22] Waters also alleges that SWA officers and managers published additional oral and written statements to third parties in which they repeated the same false accusation that she was psychologically unfit to operate aircraft. [Decl. ¶ 25] Waters’s suspicion was confirmed when on April 18, 2016, Waters received an unsolicited e-mail that Waters later discovered was from a fellow SWA pilot named Jay Longhitano, with whom Waters had no prior history. [Decl. ¶ 23, Ex. A] Longhitano stated: “Katie, I would prefer not to fly with you. I already traded everything I could’ve so far and now you back filled into my trip May 16. Please trade it and avoid me in future thanks.” Id. There is no reason why Longhitano would have sent Waters that message other than as a result of the FFD exam and rumors emanating from SWA management about alleged concerns about her fitness for duty. Id. At minimum, Longhitano’ abrupt message is circumstantial evidence of publication to additional third parties (as well as of harm done to Waters’s reputation).10 Waters has also pled and testified that when SWA published false written and oral statements to her, the company knew that she would be required to repeat and re-publish these statements to Dr. Davidson, Paul Jackson, Ron Hodges, and other third parties. [Decl. ¶ 25] As for the second element, there is also clear and specific evidence that these statements were defamatory in that they injured Waters’ reputation in her profession and exposed her to public fear, hatred, contempt and ridicule as well as financial injury. As a direct result of SWA’s false statements, Waters’ professional reputation has been irreparably damaged. The harm to an experienced pilot falsely accused of emotional instability and forced to undergo a psychological evaluation is readily apparent and cannot be overstated. [Decl. ¶ 29] Waters’s professional 10 In her Response, Waters alternatively requests limited discovery in connection with the Motion to Dismiss to help her uncover what she believes are additional publications of the statements. Limited discovery is essential in these circumstances for several reasons, including that the information is in the sole custody and control of SWA, coupled with the male-dominated atmosphere at SWA and fellow pilots’ fear of speaking out. [Decl. ¶ 24] Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 23 of 32 PageID 1155 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 18 reputation has been irreparably damaged, and the injury to her reputation “has adversely affected the esteem and respect” that she previously had, and has “devastated [her] future prospects in the aviation industry.” Id. The third element is that the statements were made intentionally or negligently. Negligence in this context is making the statements without investigating their truth or falsity before publication, and failing to act as a reasonably prudent person. Fawcett v. Grosu, 2016 WL 3635765 (Tex. App.-Houston [14th Dist.] April 5, 2016, no pet.). Water alleges that, at the time SWA’s officials made these defamatory statements, they either knew that these statements were false or they failed to investigate their truth or falsity before publication, and thus acted with reckless disregard for their truth or falsity. [Doc. 1-2 pp. 14-16] Of course, direct evidence of defamatory intent is hard to come by, especially in this type of summary proceeding. However, there is certainly sufficient clear and specific evidence to support Waters’s assertion that SWA was, at minimum, negligent in its publications of the statements. When SWA grounded Waters and required that she undergo a rigorous psychological examination, the company had no information that would lead a reasonable person to question whether she was capable of performing her pilot duties in a safe and efficient manner. This examination was neither job related nor consistent with business necessity. Rather, SWA intentionally or recklessly attacked her reputation in order to silence her. The suggestion that she suffered from a mental impairment was a contrived basis for suspending her from active duty, with the real motivation being gender bias and a desire to deter her from raising safety concerns. SWA has expressed a different reason for its decision each time Waters has requested an explanation. [Decl. ¶ 11, 14, 17, 27] It never took any steps to investigate whether she might have been under undue stress before taking a serious adverse action that humiliated her and Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 24 of 32 PageID 1156 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 19 damaged her professional reputation. [Decl. ¶ 27] SWA never interviewed her or any of the First Officers with whom she had recently flown. Id . SWA’s failure to ground Waters until almost three weeks after her discussion with Wise belies its purported legitimate reasons. [Decl. ¶ 10] SWA published its concerns about Waters’s psychological fitness and took the draconian step of grounding Waters and forcing her to undergo an FFD examination, followed by additional simulation training and SLF training, based solely on (i) Kowalczyk’s view of Waters’s conduct during the debriefing on May 5, consisting of her alleged refusal to participate and her alleged use of “underhanded comments” and “curse words,” [SWA App. pp. 426-27, ¶¶ 6-7] and (ii) Wise’s perception of the comments that Waters made to her when Waters called that same day (May 5) to report her safety concerns to the training center. [SWA App. 429, ¶ 5] It is telling that, although Wise testifies by declaration that she “immediately” notified her Senior Manager of Standards, Captain Pat Thomas, and Deutschendorf of her concerns about her May 5 conversation with Waters (and presumably Kowalczyk’s post-debriefing report), Waters was not grounded until May 22, seventeen days later. [SWA App. p. 429, ¶ 5] If SWA’s grounding of Waters was truly due to safety concerns, why did SWA allow Waters to remain eligible to fly for seventeen days after receiving the reports from Wise and Kowalczyk? Moreover, especially in light of the severity of the reputational consequences of grounding Waters and forcing Waters to undergo an unwarranted FFD examination,11 SWA’s reasons for the decision are unusually and inexplicably vague. When Waters questioned Kennedy and Fluhart as to the reasons for the actions in their May 26 meeting, they could only tell her that they “weren’t aware,” and that they “were only the messengers.” [Decl. ¶ 11] 11 With no evidence other than the fact that the CBA contains detailed provisions addressing the procedures for FFDs, SWA claims that sending a pilot for an FFD is not rare. [Doc. 12 p. 12] Of course, the fact that the CBA provides for a procedure for referring pilots for FFDs is no evidence at all of the frequency with which this occurs. Many insurance policies provide procedures for making a policy claim in the event of an earthquake or flood, but that doesn’t mean those rare events occur with frequency. Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 25 of 32 PageID 1157 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 20 Finally, the oral and written statements in which SWA refers to Waters as psychologically unfit for duty constitute defamatory per se and libel per se, because they adversely reflects on Waters’s ability to conduct her business or trade. Cuba, 814 F.3d at 713-14. Moreover, although purely subjective assertions or opinions that do not imply the existence of undisclosed facts and do not misconstrue the facts are not actionable as defamation, the term “mentally unstable,” the same or a functionally equivalent term to the terms that SWA has used to refer to Waters in this case, has been held to assert verifiable facts such that it can be the basis of a defamation claim. Schmitz, 2015 WL 6755427 at *4. SWA argues that Waters cannot establish the elements of her defamation per se and libel per se claims by clear and specific evidence because the statements were true or substantially true. First, under Texas law, in a defamation suit by a private plaintiff against a non-media defendant, the falsity of the defamatory statements is generally presumed, and truth is an affirmative defense. Schmitz v. Cox, No. 01-15-00199-CV, 2015 WL 6755427 (Tex. App.- Houston [1st Dist.] Nov. 5, 2015) (citing Randall’s Food Mkts, Inc. v. Johnson, 690 S.W.2d 691, 696 (Tex. 1995));12 see also Tex. Civ. Prac. & Rem. Code § 73.005(a) (“The truth of the statement in the publication on which an action for libel is based is a defense to the action.”). Moreover, Waters has provided sufficient evidence of their falsity. SWA places much significance on its claim that it made the defamatory statements pursuant to the CBA’s requirement that SWA provide reasonable cause for a decision to require an examination of a pilot’s fitness for duty. [Doc. 12 p. 11] But the evidence presented here shows that SWA had no reason to form the conclusion that she was psychologically unstable or lacked psychological fitness for duty. The scant reports of Wise and Kowalczyk, which were the totality of the 12 In Lipsky, the Supreme Court of Texas caused some confusion as to this longstanding placement of the burden of proof on substantial truth by referring to one element of the plaintiff’s claim for defamation as “the publication of a false statement of fact to a third party.” 460 S.W.3d at 594. Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 26 of 32 PageID 1158 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 21 evidence on which SWA claims to have relied in making its determination (at least initially), do not support SWA’s conclusions. Moreover, Waters refutes the statements of Wise and Kowalczyk in her own declaration. [Decl. ¶¶ 33-37] Furthermore, the fact that Waters was able to return to work and was paid for missed time does not make up for the injury to Waters’s professional reputation as a pilot, as SWA seems to argue. See BNSF v. White, 548 U.S. 53, 71-72 (2006) (37-day suspension constituted adverse employment action for purposes of Title VII retaliation claim, even though the suspension was later rescinded and employee was reinstated with full back pay, because simply paying employee for time suspended does not make them whole and undo the discriminatory or retaliatory action). In the similar Tennessee case of McWhorter v. Barre, 132 S.W.3d 354 (Tenn. Ct. App. 2004), after a pilot was terminated, he wrote a letter to the FAA accusing the plaintiff, who made the decision to terminate him, of being “medically unfit” to be a pilot, making several specific allegations against the plaintiff. Id. Upon receipt of the letter, the FAA grounded the plaintiff and required him to submit medical reports and undergo a neurological evaluation. Id. at 358. Even though the FAA charges were resolved after three months, the plaintiff did not lose his job, and had in fact received two raises since, the court upheld the jury’s award of compensatory and punitive damages, noting that the record contained material evidence as to the plaintiff’s loss of reputation and standing in the community, and mental anguish and suffering, and also that the letter to the FAA would throw up a “red flag” to future prospective employers. Id. at 366-67. Finally, SWA argues that Waters has no clear and specific evidence that the statements were published because the statements were made either to Waters or to persons who are “agents” of SWA. To the extent that the defamatory statements were disclosed to other employees of SWA, it is SWA’s burden to show as an affirmative defense that a qualified Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 27 of 32 PageID 1159 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 22 privilege exists due to the person making the communication’s having a legitimate interest in the subject matter of the communication, and each person to whom the communications were disclosed having a corresponding interest or duty. Ehrhardt v. Electrical & Instrumentational of Louisiana, 220 F. Supp.2d 649, 658 (E.D. Tex. 2002). Moreover, as previously shown, Waters has put on sufficient evidence of malice to overcome any privilege. Waters has produced sufficient evidence of each element of her defamation per se and libel per se claims. 2. There is Clear and Specific Evidence of the Essential Elements of Waters’s Gender Discrimination Claim The elements of Waters’s prima facie gender discrimination case are: (i) she is a member of a protected class; (ii) she was qualified for the job; (iii) she suffered an adverse employment action; and (iv) she was treated less favorably than other similarly situated employees outside her protected group. McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007). Waters’s Declaration establishes her membership in a protected class (female) and her qualifications for the job. [Decl. ¶¶ 2-4, 7, 26-27] It also sets forth specifics on Waters’s understanding that she, as one of the 3.8% of female pilots at SWA, is treated differently than the male pilots because she does not “fit the mold.” [Decl. ¶ 21, 26-28] The only element of the claim that SWA challenges in its Motion to Dismiss is the third - it contends that Waters cannot produce clear and specific evidence as to the “adverse employment action” element of her claim, arguing that being grounded and forced to undergo an unwarranted FFD evaluation does not qualify as an adverse action. [Doc. 12 pp. 14-15]. The term adverse employment action is “a judicially-coined term referring to an employment decision that affects the terms and conditions of employment.” Jones v. Dallas County, 47 F.Supp.3d 469, 496 (N.D. Tex. 2016) (Fitzwater, J.). SWA suggests that the term encompasses only “‘ultimate employment decisions,’ such as hiring, firing, demoting, Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 28 of 32 PageID 1160 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 23 promoting, granting leave, and compensating,” relying on Thompson v. City of Waco, Texas, 764 F.3d 500, 504 (5th Cir. 2014), reh’g denied en banc, 779 F.3d 343 (2015). [Doc. 12 p. 14]. However, in his opinion dissenting from the denial of the petition for rehearing en banc in that case, Circuit Judge Jolly summarized seemingly conflicting Fifth Circuit precedents on the issue of what constitutes an adverse employment action, and concluded that there is no clear standard in the Fifth Circuit and that guidance is needed. 779 F.3d at 345. Furthermore, in the principal opinion in the Thompson case, the panel stated that “[i]n certain instances a change or loss of job responsibilities - similar to the transfer and reassignment contexts - may be so significant and material that it rises to the level of an adverse employment action.” 764 F.3d at 504. The court declined to dismiss the case for failure to state a claim, finding that the plaintiff “stated a plausible claim that he was subject to the equivalent of a demotion,” which was a fact-intensive question better suited for trial. Id. at 506. See also White, 548 U.S. at 71-72 (37-day suspension constituted adverse employment action, even though the suspension was later rescinded and employee was reinstated with full back pay). Similarly, in this case, Waters’s being grounded (i.e., suspended) and forced to submit to an unwarranted FFD evaluation was a significant and material employment action that will adversely impact the rest of her career. Waters was prohibited from performing any of her job duties for over two months, and when she was allowed to return to work SWA forced her to jump through hoops before she was finally allowed to fly again. [Decl. ¶¶ 10, 16-19] This complete loss of job responsibilities certainly constitutes an adverse employment action for purposes of the TCHRA, and Waters should be given the opportunity to develop her claim to show the substantial impact SWA’s actions have had on (and will have) on her employment. 3. SWA Has Not Established its Affirmative Defenses By a Preponderance of the Evidence Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 29 of 32 PageID 1161 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 24 From its laundry list of 25 affirmative defenses, SWA briefs four of those defenses: FAA preemption; RLA preemption; that SWA’s allegedly defamatory statements are protected statements of opinion; and that SWA had a qualified privilege to make the statements. The issues of alleged preemption under the FAA and/or the RLA are the subject of the Motion for Judgment [Doc. 8] that was filed along with the Motion to Dismiss. Waters’s response to those issues, in which she demonstrates that her claims are not preempted by federal law, are briefed extensively in her response to the Motion for Judgment and supporting brief, in which Waters conclusively disproves the assertion that any of her claims are preempted by either the FAA or the RLA.13 SWA asserts that its false statements regarding Waters’s “psychological fitness for duty,” her “ability to perform her job,” and alleged “emotional instability” are not actionable because they are mere opinions. Although purely subjective opinions or assertions are not actionable, opinions that either misconstrue the facts, or imply the existence of undisclosed facts are actionable. Schmitz, 2015 WL 6755427 at *4. For example, in Schmitz, the term “mentally unstable,” a very similar term to the terms used by SWA to describe Waters in this case, was held to assert verifiable facts such that it could be the basis of a defamation claim. Id. The only other defensive matter on which SWA relies in its anti-SLAPP motion is its assertion of a qualified privilege. Of course, even if the Court were to find that SWA established the requisite “need to know” as to all of the individuals to whom the false statements were published, any qualified privilege that otherwise existed is lost if there is evidence of malice. Fields v. Keith, 174 F. Supp.2d 464, 473 (N.D. Tex. 2001), aff’d, 273 F.3d 1099 (5th Cir. 2001). “In the context of defamation, actual malice means “the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.” Id. As was explained above, there is sufficient circumstantial evidence, even at this very early stage of the proceeding, to show that 13 Waters hereby incorporates by reference her response to the Motion for Judgment [Doc. 18]. Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 30 of 32 PageID 1162 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 25 SWA was, at the very least, acting with reckless disregard in terming Waters not psychologically fit for duty. [Decl. ¶ 10-11, 14, 17, 27] Also, there is clear and sufficient evidence that SWA was motivated by a malicious desire to retaliate against Waters for reporting her safety concerns, and/or on a mission to make her fail, due to her gender. [Decl. ¶ 26, 28] SWA has failed to prove any of its asserted affirmative defenses by a preponderance of the evidence. IV. The Court Should Award Waters Her Costs and Reasonable Fees Incurred in Responding to the Motion to Dismiss The TCPA authorizes the Court to award Waters her court costs and reasonable attorney fees “[i]f the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay.” Tex. Civ. Prac. & Rem. Code § 27.009(b). The Court should award Waters the reasonable court costs and fees under this provision because SWA’s Motion is frivolous. In this regard, as shown above, no court has held that the TCPA applies to federal claims brought in federal court. Because SWA only asserts federal question jurisdiction, the only way the Court could have jurisdiction over the action is if the Court were to find that Waters’s state law claims are completely preempted by federal law. In that scenario, the Motion would nevertheless be groundless because the TCPA has no application to federal claims in federal court. Conclusion For the foregoing reasons, the civil action should be remanded to the 44th Judicial District Court of Dallas County, Texas, without consideration of SWA’s Motion to Dismiss under the TCPA - or, alternatively, SWA’s Motion to Dismiss should be denied - and Plaintiff should be awarded her attorney fees and costs and any further relief to which she is entitled. Respectfully submitted, /s/ Rod Tanner Rod Tanner Matt Pierce Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 31 of 32 PageID 1163 Plaintiff’s Brief in Support of Plaintiff’s Response to Defendant’s TCPA Motion to Dismiss - Page 26 Certificate of Service On August 19, 2016, I electronically submitted the foregoing response and brief to the clerk of court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. I hereby certify that I have served all counsel of record electronically or by another means authorized by Federal Rule of Civil Procedure 5(b)(2). /s/ Rod Tanner Rod Tanner Case 3:16-cv-01629-C Document 23 Filed 08/19/16 Page 32 of 32 PageID 1164