Walgreens v. Pamela McKenzie, 23-0955, May 16, 2025.
On appeal from Court of Appeals for the Fourteenth District of Texas
Synopsis
The Supreme Court of Texas held that the TCPA applies to a negligent-hiring, training, and supervision (NHTS) claim when the claim is based on or in response to a communication made in connection with a matter of public concern — here, an employee’s report to police. Because McKenzie failed to meet the TCPA’s clear-and-specific evidentiary burden to establish a prima facie case for the NHTS claim, the Court reversed the court of appeals in part and remanded for dismissal under the TCPA.
Relevance to Family Law
Although arising from a retail detention, the decision materially affects family-law practitioners: claims that flow from communications to police, CPS, schools, or other public bodies (for example, alleging negligent hiring, supervision, or training of staff who reported suspected abuse, neglect, or criminal conduct) may be swept into the TCPA’s early-dismissal framework. Parties in divorce, custody, and related property disputes should anticipate TCPA motions when alleged torts against institutions hinge on a purportedly protected communication; plaintiffs must build non-communicative, pre-incident factual predicates or otherwise meet the TCPA’s heightened prima facie standard to avoid dismissal and the attendant stay of discovery and interlocutory review.
Case Summary
Fact Summary
Pamela McKenzie was detained by store personnel at a Houston Walgreens in 2019 on suspicion of shoplifting after an employee called the police. Surveillance and store personnel allegedly showed she was not the thief; nonetheless, the employee reported the suspected theft, and the police detained and later released her. McKenzie sued Walgreens asserting intentional infliction of emotional distress, negligence and gross negligence, vicarious liability for employee negligence, and negligent hiring, training, and supervision (NHTS). Walgreens moved to dismiss under the TCPA, contending the claims were based on the employee’s protected communication to law enforcement.
Issues Decided
The Court resolved whether the TCPA applies to McKenzie’s NHTS claim and, if so, whether McKenzie carried her burden to avoid dismissal. Secondary issues addressed the proper scope of “legal action” and “exercise of the right of free speech” under the TCPA when the alleged tort arises from an employee’s communication to the authorities.
Rules Applied
The Court applied the TCPA statutory framework: TEX. CIV. PRAC. & REM. CODE §§ 27.001–27.005 and governing definitions, particularly that a “legal action” includes a “cause of action” and that the “exercise of the right of free speech” includes “a communication made in connection with a matter of public concern” (§ 27.001(3), (6); §§ 27.003, 27.005). The Court also relied on prior TCPA precedent interpreting the statute’s purpose and the defendant’s burden to show the TCPA applies and the plaintiff’s burden to produce clear and specific evidence establishing a prima facie case for each element.
Application
The Court analyzed whether McKenzie’s NHTS claim was “based on or in response to” the employee’s report to police. It rejected the court of appeals’ conclusion that because hiring, training, and supervision occurred before the report, the NHTS claim was categorically unconnected to the protected communication. Instead, the Court treated the claim as a cause of action that can be “based on” an exercise of the right of free speech where the communication is the operative or substantial conduct giving rise to the suit. Having concluded the TCPA applied, the Court evaluated whether McKenzie presented clear and specific evidence of the essential elements of an NHTS claim sufficient to avoid dismissal. Finding she did not satisfy that evidentiary burden, the Court held dismissal under the TCPA appropriate and remanded for the trial court to effectuate the statute’s procedures.
Holding
The Supreme Court held that the Texas Citizens Participation Act applies to a negligent-hiring, training, and supervision claim when that claim is based on or in response to a communication made in connection with a matter of public concern, such as an employee’s report to law enforcement. The Court further held that McKenzie failed to meet the TCPA’s clear-and-specific-evidence standard to establish a prima facie NHTS claim, requiring reversal of the court of appeals’ judgment in part and remand consistent with dismissal under the TCPA. The opinion clarifies that pre-incident conduct (hiring, training, supervision) does not necessarily insulate a claim from the TCPA where the alleged injury and claims are driven by a protected communication.
Practical Application
For family-law litigators, this decision signals that institutions and employers named in claims stemming from communications to police, CPS, schools, or other public bodies can — and should — consider early TCPA motions. Where a custodial or institutional actor (daycare, school, social-services contractor, religious institution, employer of a party) is sued for negligent hiring/training/supervision after an employee reports alleged abuse, neglect, or criminality, the defendant can argue the TCPA applies because the operative conduct is a protected communication concerning a matter of public concern. Plaintiffs in family-law contexts must anticipate a TCPA-driven stay of discovery and interlocutory appeal rights for defendants; to withstand dismissal, plaintiffs will need clear and specific evidence tying the defendant’s pre-incident conduct to the asserted elements of the claim independent of the communication, or alternatively plead and prove non-communicative grounds for liability.
Checklists
Gather Your Evidence
- Locate and preserve incident reports, call logs, surveillance, and contemporaneous store/school/daycare logs showing who communicated to whom and when.
- Obtain personnel files, hiring records, training curricula, performance reviews, and prior complaint records pertaining to the implicated employee.
- Secure witness statements from non-communicative witnesses (those who observed pre-incident policies, training, or conduct).
- Document any institutional policies or deviations from policy that created the risk alleged.
Plead and Preserve Non-Communicative Theories
- In your petition, expressly plead any independent negligent-hiring/training/supervision theory as a standalone element with particularized factual allegations.
- Articulate how pre-incident conduct (e.g., failure to remediate known prior misconduct) proximately caused the claimant’s injury apart from the protected communication.
- Avoid leaving the NHTS claim solely tethered to the existence of the report; detail concrete policy failures, omissions, or known prior incidents.
Defendant: Asserting the TCPA Early
- File a TCPA motion promptly identifying the challenged “legal action” and the specific communications alleged to be protected (police/CPS/school reports, public statements).
- Argue the communications are “in connection with a matter of public concern” (reports of suspected criminal activity, safety, or public welfare).
- Seek the stay of discovery and prepare an interlocutory record focused on the absence of clear-and-specific plaintiff evidence on essential elements.
Discovery and Evidentiary Strategy Post-Motion
- If the TCPA motion is filed, fast-track corporate-representative testimony and targeted discovery limited to what the TCPA permits to establish or refute the prima facie showing.
- For plaintiffs, prepare to produce clear-and-specific evidence as to each element of the NHTS claim (foreseeability, actual notice, causation, and available remedies) before the court rules.
- Consider strategic supplementation of pleadings (with caution) to delineate non-communicative bases for liability.
Citation
Walgreens v. Pamela McKenzie, No. 23-0955 (Tex. May 16, 2025).
Full Opinion
Full opinion (Supreme Court of Texas, May 16, 2025)
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