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Can defamatory comments be made in the scope of employment?

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Claim against employee dismissed

In the case of William C. Ferebee v. Law Office of Frank Powell & Frank C. Powell, the Court of Appeals for the First District of Texas reversed the order of the trial court. The defendant was entitled to dismissal from the second slander suit based on lack of jurisdiction under section 101.106(f), the appellate court ruled.

The appellate court noted that it did not need to address whether the defendant had ulterior motives, had personal animus, acted to serve his own purposes, or had authority to make defamatory comments. Rather, the appellate court only needed to analyze whether the defendant was performing his job duties when he committed the alleged wrong.

The plaintiff argued that the defendant deviated from his job duties when he commented on personal litigation unrelated to the city’s business and that his comments amounted to an independent course of conduct that did not serve the city’s purposes.

The appellate court disagreed and found that the plaintiff’s pleadings showed the following. First, the defendant was performing his job duties when he gave a litigation update upon the mayor’s request at the city council meeting. Second, the first slander suit was related to the city’s business since it involved city employees and officials.

Regardless of whether the defendant’s comments went off topic, he made them while performing his job duties as the city attorney, the appellate court said. Besides, the defendant’s comments were an escalation rather than a deviation from his job duties, the appellate court noted.

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