# Walgreens v. McKenzie

Supreme Court of Texas, No. 23-0955

**Walgreens v. McKenzie, No. 23-0955 (Tex. May 16, 2025). Holding: The TCPA applies to a claim for negligent hiring, training, or supervision when at least one of the underlying tortious acts is based on or in response to the defendant's exercise of the right of free speech, and the court of appeals wrongly required that the claim be "entirely" based on protected activity; McKenzie did not carry her burden to establish a prima facie case, so the NHTS claim must be dismissed.**

Practice areas: defamation, civil procedure, employment

## Key issues

- The TCPA applies to a claim for negligent hiring, training or supervision when at least one of the underlying tortious acts, such as an employee's allegedly false theft accusation to police, is based on or in response to the defendant's exercise of the right of free speech; the court of appeals wrongly required that the claim be "entirely" based on protected activity.
- The plaintiff did not carry her burden to avoid dismissal, because she offered no evidence of the employee's hiring, training or supervision, a standard of care, a breach, or proximate cause, so the Court rendered judgment dismissing the negligent-hiring claim.

## Factual History
In 2019, Pamela McKenzie was shopping in a Houston Walgreens when she was detained on suspicion of shoplifting after a Walgreens employee called the police, believing she was the person who had stolen from the store earlier that day and returned (Opinion, PDF p. 2). After reviewing surveillance video and determining that she was not the thief, the police released her; McKenzie claims that the other employees in the store that day agreed she was not the thief but the employee called anyway (Opinion, PDF p. 2). Walgreens says it has been unable to identify the employee (Opinion, PDF p. 2 n.1).

## Procedural History
McKenzie sued Walgreens for intentional infliction of emotional distress, negligence, gross negligence, respondeat superior liability, and negligent hiring, training, and supervision (NHTS), and Walgreens moved to dismiss under the Texas Citizens Participation Act (TCPA), arguing that the claims rest on the employee's report to the police, a communication on a matter of public concern; the trial court denied the motion (Opinion, PDF pp. 2-3). A divided Fourteenth Court of Appeals ordered dismissal of all claims except NHTS, holding that the NHTS claim was not "entirely" based on or in response to the employee's exercise of free-speech rights because it also rests on Walgreens' own conduct in hiring, training, and supervising, and remanded for McKenzie to pursue it; McKenzie did not seek review of the dismissed claims (Opinion, PDF p. 3 & n.3). The dissenting justice would have dismissed the NHTS claim as well, because it cannot survive without underlying tortious conduct (Opinion, PDF p. 4). Walgreens petitioned for review on December 12, 2023; the Court granted review on December 20, 2024, heard argument on February 20, 2025, and decided the case on May 16, 2025 (Docket; Opinion, PDF pp. 1, 16).

## Issues Presented
Walgreens presents whether the court of appeals undermined the TCPA for employer defendants by allowing NHTS claims to proceed when the underlying tortious conduct was protected speech, whether an anti-SLAPP motion can be defeated by unpleaded causes of action the plaintiff concedes she did not assert, and whether the court erred in addressing an argument Walgreens did not raise about the "admission rule" (Brief on the Merits (Walgreens), PDF p. 10; Petition for Review (Walgreens), PDF p. 10). The Court decided whether the TCPA applies to McKenzie's NHTS claim and, if so, whether she established a prima facie case (Opinion, PDF p. 4).

## Standard(s) of Review
The Court reviews statutory interpretation by plain language, considering the statute as a whole (Opinion, PDF p. 7). Once the TCPA applies, the nonmovant must establish "by clear and specific evidence a prima facie case for each essential element" of her claim (Opinion, PDF pp. 5, 12).

## Legal Arguments
**Whether the TCPA applies to the NHTS claim.**

**Petitioner (Walgreens):** The court of appeals correctly held that the employee's report to the police was protected speech subject to dismissal under the TCPA, and that the respondeat superior claim fell with the underlying torts; it failed to apply the same analysis to the NHTS claim, which cannot survive without underlying liability, in conflict with *Bird v. W.C.W.* and *Wansey v. Hole* (Brief on the Merits (Walgreens), PDF p. 17; Petition for Review (Walgreens), PDF p. 13). Walgreens also argues that a plaintiff cannot defeat an anti-SLAPP motion with causes of action that she concedes she did not plead (Brief on the Merits (Walgreens), PDF p. 10).

**Respondent (McKenzie):** Walgreens asks the Court to protect the speech of an unknown party and to extend that protection to independent negligent training, supervision, investigating, and hiring claims; and Walgreens is exempt from the TCPA because of its commercial-speech exception (Brief on the Merits (Pamela McKenzie), PDF p. 17; Response to Petition (Pamela McKenzie), PDF p. 16). She also argues that hiring, training, and supervision are conduct, not communications, and raises cross-issues about emotional-distress damages, the pending rehearing motions, and the bodily-injury exception (Opinion, PDF pp. 6, 13-14).

## Stated Reasons the Court Should Take the Case
Walgreens argued that the court of appeals' holding conflicts with Supreme Court authority and lets plaintiffs avoid the TCPA against employers by asserting NHTS claims (Petition for Review (Walgreens), PDF p. 13). McKenzie argued that Walgreens seeks to extend TCPA protection to an unknown party's speech and to independent NHTS claims (Response to Petition (Pamela McKenzie), PDF p. 16). The Court noted that it had not previously construed the TCPA's connective language since the 2019 amendment (Opinion, PDF p. 7).

## Oral Argument

- **Accusation without police.** Asked how a false theft accusation in the store, with no police report, falls under the TCPA, Walgreens' counsel said accusing someone of criminal conduct is still protected speech. (Oral Argument, 0:09:38)
- **Independent tort.** Asked what work negligent hiring does when respondeat superior already applies, McKenzie's counsel said it is an independent tort from respondeat superior. (Oral Argument, 0:27:51)
- **Eviscerating the Act.** Walgreens' counsel said the court of appeals erred by separately analyzing negligent hiring after finding the employee's conduct protected, which would gut the TCPA for employers sued in negligence. (Oral Argument, 0:13:24)
- **Element of the claim.** Asked whether the protected communication must be an element of the claim, Walgreens' counsel said it is certainly an element here, since it has to be proven. (Oral Argument, 0:07:34)
- **Outside course and scope.** Asked about negligent hiring when the injury occurs outside course and scope, McKenzie's counsel said an off-duty example might matter, but not much here. (Oral Argument, 0:29:33)
- **Pleading misconduct.** On rebuttal, asked whether pleading facts of employee misconduct suffices, Walgreens' counsel said no; negligent hiring requires damages from the employee's foreseeable misconduct. (Oral Argument, 0:42:02)

## Practice Area Tags
defamation, civil-procedure, employment

## Procedural Posture/Vehicle
Petition for review from the Fourteenth Court of Appeals in an interlocutory appeal from the denial of a TCPA motion to dismiss; argued February 20, 2025, and decided May 16, 2025 (Opinion, PDF pp. 1, 3-4, 16).

## Amicus Involvement
- [Wolfgang P. Hirczy de Mino](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=3183284f-ce9a-4239-936a-178fdfb05f58&coa=cossup&DT=BRIEFS&MediaID=f1e2e2c2-65bd-46e9-a705-a0c23cc12347) filed an amicus curiae brief on May 16, 2025.

## Holding
The TCPA applies to a claim for negligent hiring, training, or supervision when at least one of the underlying tortious acts is based on or in response to the defendant's exercise of the right of free speech, and the court of appeals wrongly required that the claim be "entirely" based on protected activity; McKenzie did not carry her burden to establish a prima facie case, so the NHTS claim must be dismissed (Opinion, PDF pp. 9-13, 15-16).

## Court's Reasoning
**The TCPA applies.** In 2019 the Legislature deleted "relates to" from the TCPA's nexus language, narrowing the action to one "based on or in response to" the protected activity; courts of appeals have described "based on" as requiring that the activity be a "main ingredient" or "fundamental part" of the claim, and "in response to" as a reply or reaction (Opinion, PDF pp. 6-8). The court of appeals imposed a stricter nexus by inserting "entirely," which the statutory language does not support (Opinion, PDF p. 9). An NHTS claim requires proof of both the employer's negligence in hiring, training, or supervising and the employee's subsequent tortious act, so when either is based on or in response to protected activity the TCPA applies (Opinion, PDF pp. 5-6, 9). McKenzie's alleged tortious acts, accusing her of theft in front of customers and falsely accusing her to the police, were communications in connection with a matter of public concern, so the NHTS claim is based on and in response to that exercise of free speech; the Court presumed, without deciding, that an employee's intentional tort can sustain an NHTS claim, and held that a corporate party's exercise of the right includes that of its agents (Opinion, PDF pp. 9-11 & nn.5-6).

**No prima facie case.** The Court reached the second step in the interest of judicial economy: McKenzie identified no evidence of the employee's hiring, training, supervision, or retention, the standard of care, a breach, or proximate cause, so she did not establish a prima facie case (Opinion, PDF pp. 12-13).

**Cross-issues.** The Court could not grant McKenzie relief on her emotional-distress argument because she filed no petition for review, held the petition timely because rehearing motions had been denied before it was filed, and found her commercial-speech and bodily-injury exceptions waived because she first raised them in this Court, and in any event unsupported (Opinion, PDF pp. 13-15).

## Disposition
The Court reversed the portion of the court of appeals' judgment affirming the denial of Walgreens' motion to dismiss the NHTS claim and rendered judgment dismissing that claim, leaving the remainder undisturbed and remanding for dismissal of McKenzie's other claims and any other necessary proceedings (Opinion, PDF p. 16).

## Vote Breakdown
Justice Busby delivered the opinion of the Court (Opinion, PDF p. 1).


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Source: The SCOTX Report, https://scotxreport.com/cases/23-0955. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.