Southern Methodist University hired Cheryl Butler as an assistant law professor in 2011, and after a third-year review it renewed her contract.¹ When she became eligible for tenure consideration in fall 2015, she asked to postpone the vote because of illness; SMU denied that request but later approved Family and Medical Leave Act leave for spring 2016.² Her tenure committee, chaired by Professor Roy Anderson, reported that she met the standards for scholarship and service but not teaching, the law faculty voted in January 2016 not to recommend tenure, and her appeals to the law dean and the provost failed.³ She taught no classes during her 2016-2017 terminal year.⁴ Butler alleges that the tenure standards and process were racially discriminatory, that the denial was retaliation for her internal complaints about race, disability, and FMLA discrimination, and that the tenure report and faculty discussions falsely accused her of, among other things, turning in grades late, lying about being sick, and being "unfit" to be a lawyer or law professor.⁵

Butler sued SMU and several of its employees in state court, and the case was removed to federal court; she pleaded federal discrimination, retaliation, and FMLA claims, Chapter 21 claims against SMU, and defamation, conspiracy to defame, and fraud claims against only the employee defendants.¹ The employee defendants moved to dismiss under Federal Rule 12(b)(6), and the district court held, citing Waffle House, that Chapter 21 preempts the defamation and fraud claims against them because their gravamen is employment discrimination and retaliation.² It later granted summary judgment on the remaining claims, and Butler appealed to the U.S. Court of Appeals for the Fifth Circuit, which certified the question to this Court on August 2, 2024.³ The Court accepted the question, heard argument on December 3, 2024, and answered it on May 23, 2025.⁴

Certified question from the United States Court of Appeals for the Fifth Circuit under Texas Constitution article V, section 3-c; argued December 3, 2024, and decided May 23, 2025.⁵

The certified question is whether Texas Labor Code chapter 21 (the Texas Commission on Human Rights Act, or TCHRA) preempts a plaintiff-employee's common-law defamation or fraud claims against another employee to the extent they are based on the same course of conduct as discrimination or retaliation claims against the plaintiff's employer.¹ Butler's opening brief also argues that the Texas Constitution guarantees defamation claims, that Waffle House should be reexamined, and that preemption would violate equal protection;² the Court declined to revisit Waffle House, and the appellees note that all but one of Butler's six questions were not certified.³

The briefs state no standard of review. The Court applied the standard for abrogating a common-law right, which is disfavored and requires a clear repugnance between the common law and the statutory cause of action, shown by the statute's plain language expressly or by necessary implication.¹

Whether Chapter 21 displaces defamation and fraud claims against a coworker.

Appellant (Butler): Chapter 21 does not preempt common-law tort claims against coworkers or employers; the Texas Constitution guarantees defamation claims; the statute is silent on preemption and is not a tort-reform regime; and Steak N Shake shows the statute creates liability only for employers and so is not repugnant to claims against coworkers.¹ She asks the Court to revisit Waffle House and argues that a liability shield for those accused of bias would violate equal protection.² In reply she contends that the appellees do not carry their burden to show implied preemption, that the gravamen test does not apply to claims dismissed before the merits stage, and that preemption would give wrongdoers an incentive to lie and hide evidence.³

Appellees (Collins, et al., and SMU): The answer is yes: under Waffle House the nature of the claim, not its label, controls, and where the gravamen is TCHRA-covered discrimination or retaliation a plaintiff cannot avoid the statute by recasting claims as claims against coworkers.⁴ They argue that Waffle House was correct and should not be overturned, that claims against coworkers based on the same conduct are equally repugnant to the statute, and that preemption does not offend equal protection because all employees subjected to workplace discrimination are treated alike.⁵

Not applicable. This was a certified question from the Fifth Circuit, which the Court accepted under article V, section 3-c of the Texas Constitution.¹

• Reputational harm. Asked whether a plaintiff can recover for reputational harm from a co-worker's defamation, appellees' counsel said the Act's remedies are what the Legislature chose, and the defamation component is unrecoverable. (Oral Argument, 0:27:32)
• Fewer rights. Asked whether Chapter 21 plaintiffs end up with fewer rights, appellees' counsel said no blanket statement fits, but statutory rights may be less full than common-law ones. (Oral Argument, 0:38:48)
• Displacing co-worker claims. Asked why an employer cause of action displaces common-law claims against co-workers, appellees' counsel said the Legislature chose the Act's remedies as the way to deter workplace discrimination. (Oral Argument, 0:35:02)
• Federal statutes. Asked whether the analysis changes if the question concerned federal law, Butler's counsel said no, because no circuit has held the federal statutes preempt common-law claims against co-workers. (Oral Argument, 0:13:00)
• Same course of conduct. On rebuttal, asked whether the tort claims survive an adverse answer, Butler's counsel did not concede they rest on the same course of conduct, calling the conduct overlapping. (Oral Argument, 0:47:16)

• Steven W. Smith of Georgetown, Texas filed an amicus brief on September 5, 2024.
• Steven W. Smith of Georgetown, Texas also filed an amicus letter brief on October 11, 2024.

Holding

Chapter 21 does not abrogate a plaintiff-employee's common-law defamation and fraud claims against another employee, even when they are based on the same course of conduct as Chapter 21 discrimination or retaliation claims against the employer; the Court answered the certified question "no".¹

Reasoning

The Court first clarified terminology: the question concerns whether a statute displaces common-law claims, not "preemption" in the constitutional sense of federal or state law supplanting other law, although Waffle House used that word.² Chapter 21 is a comprehensive remedial scheme that prohibits discrimination and retaliation by an "employer" and does not subject individual employees to personal liability, and neither the word "agent" in the definition of employer nor an "official capacity" theory changes that.³

Waffle House held that Chapter 21 is the exclusive remedy against an employer when the gravamen of the case is covered discrimination, and the Court declined Butler's invitation to overrule it, a request she had not made in the district court or the Fifth Circuit.⁴ The Court rejected the employee defendants' argument that allowing claims against coworkers lets plaintiffs evade the statute by artful pleading.⁵ Because Chapter 21 applies only to employers, it "does not deprive a person of longstanding common law claims against other employees who engage in tortious workplace conduct".⁶ Waffle House itself said its holding did not bar a tort claim against the harasser individually, and Steak N Shake repeated that the Legislature's balancing of interests in Chapter 21 is "wholly inapposite to claims against individual assailants".⁷ Likewise, remedies against those who defame or defraud have long existed at common law, so no clear repugnance exists.⁸

The Court added two cautions. A plaintiff cannot recover twice for the same injury, so back pay can be recovered only once and reinstatement and future lost wages cannot both be recovered from the employer; and because there is no common-law cause of action for discrimination or retaliation, Chapter 21 remains exclusive when that is all a plaintiff substantively asserts.⁹ It also observed that Butler's defamation claims, which rest on publication of false statements, present at least partly a different theory of causation and injury than her Chapter 21 claims, and expressed no opinion on the merits of those claims or on whether the statements caused the tenure denial.¹⁰

Disposition

The Court answered the Fifth Circuit's certified question "no".¹¹

Vote Breakdown

Majority Opinion by Justice Lehrmann

Joined by Blacklock, C.J., and Bland, Boyd, Busby, Devine, Huddle, Sullivan, and Young, JJ.