In this сase, we must determine whether the Texas Citizens Participation Act (TCPA) applies to alleged communications among ExxonMobil Pipeline Company (EMPCo) employees about Travis Coleman, a terminal technician formerly employed by EMPCo. The court of appeals held that EMPCo did not meet its burden to show that the TCPA applies to Coleman’s suit.
Travis Coleman was formerly employed at EMPCo’s Irving, Texas, facility. As a terminal technician, Coleman was assigned to perform preventative maintenance tasks, offload shipments from incoming trucks, and record the fluid volume of various petroleum products and additives in storage tanks each night, a process referred to as “gauging the tanks.” When gauging the tanks, EMPCo requires that terminal technicians handwrite the results and later record them in EMPCo’s computer system so that the results are available on an inventory planning report the following day. Because Coleman allegedly failed to gauge tank 7840 on August 20, 2012, yet reported- that he did, EMPCo terminated Coleman’s employment in November 2012.
Coleman later sued EMPCо and his two former supervisors, Robert Caudle and Ricky Stowe, for defamation. Coleman asserts that he gauged tank 7840 on April 20, 2012, and that there are documents that prove it. Therefore, Coleman alleges that statements by Caudle and Stowe about the circumstances that led to Coleman’s termination are untrue. Specifically, Coleman claims that Cаudle’s allegations on an EMPCo “Near Loss Report” form and separate inventory sheet cataloging the incident are false because they allege Coleman did not gauge tank 7840. Additionally, Coleman asserts that Stowe’s statement to an EMPCo investigator, in which he alleged that he could not find any documents to support Coleman’s version of the incident, is false.
Caudle, an EMPCo foreman, supervised Coleman directly. In his affidavit testimony, Caudle claims that on August 20, 2012, he asked another terminal technician to pull additive from tank 7840 to make room for new inventory. The next day, Caudle discovered that tank 7840 was imbalanced and that the inventory numbers in the EMPCo system were the same as the previous day. Investigating the discrеpancy, Caudle e-mailed Coleman to ask why he had not gauged the tank. Not receiving an immediate response, Caudle then forwarded his e-mail again to Coleman and additionally to Stowe, Caudle’s supervisor. Caudle alleges that Coleman responded on August 28, 2012, admitting that he did not gauge the tank. Following EMPCo’s safety protocol, Caudle then prepared a Near
Caudle further testified that EMPCo terminal technicians are required to complete nightly fluid level assessments for three primary reasons: “(i) to assess the fluid levels in the tanks to avoid overfilling; (ii) to determine whether any tanks have leaks; and (iii) to keep an accurate account of the [Irving] Facility’s inventory.” Cau-dle claims that when technicians fail to gauge tanks as required, they create serious safety and environmental risks. In fact, the greatest risk from failing to gauge the tanks, according to Caudle, is that tanks could overfill, causing noxious and flammable fluid to spill onto the ground. In addition to endangering other EMPCo employees at the facility, such a spill could potentially cause environmental harm. Other risks include failing to notice leaks, which carries similar environmental and safety concerns, and failing tо maintain a proper inventory, negatively impacting EMPCo’s economic interests.
According to Stowe’s affidavit testimony, EMPCo investigated Coleman for violating EMPCo’s ethics policy. Stowe alleges that Coleman violated the policy by failing to gauge tank 7840 and then reporting otherwise. Stowe further alleges that as a result of a November 2012 meeting with Coleman and an EMPCo investigator, Coleman signed a handwritten statement admitting to conduct alleged by Stowe. As a result, EMPCo placed Coleman on leave before finally discharging him in late November 2012. Like Caudle, Stowe claims the communications regarding the incident were made in furtherance of EMPCo’s interests.
The stated purpose of the TCPA, found in chaрter 27 of the Civil Practice and Remedies Code, 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.” Tex. Civ. Peac. & Rem. Code § 27.002. The Legislature has instructed that the TCPA “shall be construed liberally to effectuate its purpose and intent fully.” Id. § 27.011(b). To effectuate the statute’s purpose, the Legislature has provided a two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant’s exercise of thesе First Amendment rights. Id. § 27.003; In re Lipsky,
First, the defendant, who has moved to dismiss, must show by a preponderance of the evidence that the plaintiffs claim “is based on, relates to, or is in response to the [movant’s] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.” Tex. Civ. Peac. & Rem. Code § 27.005(b); In re Lipsky,
Next, the burden shifts to the plaintiff to “establish[ ] by clear and specific evidence a prima facie case for each essential element of thе claim in question.” Id. § 27.005(c). Yet, even if the plaintiff satisfies the second step, the court will dismiss the action if the defendant “establishes by a preponderance of the evidence each essential element of a valid defense” to the plaintiffs claim. Id. § 27.005(d).
Issues of statutory construction are reviewed de novo. Lippincott v. Whisenhunt,
In 2015, we addressed TCPA applicability in a similar context when deciding Lippincott v. Whisenhunt,
At issue in Lippincott was whether the TCPA applied to allegedly defamatory statements made between Creg Parks and Matthew Lippincott, administrators at First Surgery Suites, LLC (First Surgery), about Warren Whisenhunt, a nurse anesthetist contracted by First Surgery.
Cоnsidering the similarities between the nature and circumstances of Coleman’s defamation claim here and the allegedly defamatory statements at issue in Lippincott, we conclude that EMPCo, Caudle, and Stowe successfully demonstrated TCPA applicability. The court of appeals came to the opposite conclusion, however, holding that the communications among EMPCo employees “had only a tangential relationship to health, safety, environmental, and economic concerns.”
We began our analysis in Lippin-cott by instructing that “[a] court may not judicially amend a statute by adding words that are not contained in the language of the statute. Instead, it must apply the statute as written.” Lippincott,
Coleman similarly fails to argue convincingly against TCPA applicability in this context. First, Coleman relies on his own conclusory testimony that “[fjailing to gauge will not result in serious safety and environmental risks.” Next, Coleman argues that the Near Loss Report form “says nothing about safety concerns or issues,” and although he indicated in his petition that he learned about Caudle’s accusations during a safety meeting, Coleman disputes that the accusations were discussed during the meeting. Finally, Coleman argues that because “in connection with” is disfavored among writing authorities, the court of appeals properly required a “nexus” between a communication and a matter of public concern.
Each of Coleman’s arguments constitutes an effort to narrow the scope of the TCPA by reading language into the statute that is not there. Coleman fails to cite a provision of the TCPA, or a Texas court interpreting the statute, that provides support for the proposition that a plaintiffs conclusory assertion thаt the defendant’s affidavit testimony is untrue defeats the Act’s applicability. Similarly, we are not convinced that because a pre-print-ed form lacks specific reference to the issues identified by the Legislature as matters of public concern, we should ignore evidence suggesting that the user-provided statements added to the form constitute сommunications in connection with a matter of public concern. Coleman’s final argument, in which he suggests the Legislature meant “in connection with” to “suggest[] something more than a tenuous or remote relationship,” fails to rehabilitate the court of appeals’ improper narrowing of the TCPA and instead highlights the error in the court of appeals’ analysis. We do not substitute the words of a statute in order to give effect to what we believe a statute should say; instead, absent an ambiguity, we look to the statute’s plain language to give effect to the Legislature’s intent as expressed through the statutory text. Lippincott,
Here, the challenged statements constitute speech. the Legislature intended to safeguard thrоugh the TCPA. The statements between Caudle, Stowe, and the EMPCo investigator were communications under the TCPA because they were either oral (e.g., discussion of the Near Loss Report at the monthly safety meeting and the November 2012 meeting between Stowe, Coleman, and the EMPCo investigator), written (e.g., the Near Loss Report and Inventory Planning Sheet), or eleсtronic (e.g.,, e-mails investigating the failure to gauge tank 7840). Tex. Civ. Peac. & Rem. Code § 27.001(1). The statements, although private and among EMPCo employees, related to a “matter of public concern” because they concerned Coleman’s alleged failure to gauge tank 7840, a process completed, at least in part, to reduce the рotential environmental, health, safety, and economic risks associated with noxious and flammable chemicals overfilling and spilling onto the ground. Id. § 27.001(7)(A), (B); see also Lippincott,
EMPCo, Caudle, and Stowe alternatively argue that the TCPA applies under the TCPA’s “right of association” prong. See id. § 27.001(2). Because we hold that, on this record, the communications were
In conclusion, the statements at issue in this case constitute communications made in connection with environmental, health, safety, and economic concerns under the TCPA. Thus, the TCPA applies, and thе court of appeals erred in affirming the trial court’s judgment denying petitioners’ motion to dismiss under the provisions of the TCPA. Accordingly, without hearing oral argument, Tex. R. App. P. 59.1, we reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings consistent with this opinion, including consideration of whether Coleman met his burden under the TCPA of establishing by clear and specific evidence a prima facie case for each essential element of his claim. See Tex. Civ. Peac. & Rem. Code § 27.005(c).
Notes
. In the Near Loss Report, Caudle stated: "On 8/20/12 Tech went out to gauge tanks and after gauging tank 7850 he made the assumption that tank 7840 was the same as night before not knowing the tech on the day shift had сhange [sic] the pulling tank back to 7840 and did not gauge the tank.”
. Although the communications in Lippincott were between a company and its contractor, and the communications here were among EMPCo employees, the discrete employment relationships in this context amount to a distinction without a difference. Cf. Bd. of Cty. Comm’rs v. Umbehr,