Supreme Court
Walgreens v. McKenzie
- Case number: 23-0955
- Legal category: Texas Citizens Participation Act
- Subtype: Initial Burden
- Set for oral argument: February 20, 2025
Case Summary
The main issue in this case is whether a party moving to dismiss a negligent‑hiring claim under the Texas Citizens Participation Act meets its initial burden to demonstrate that the TCPA applies when the claim implicates an employee’s exercise of a First Amendment right.
While shopping at Walgreens, Pamela McKenzie was detained and questioned by a police officer, who received an employee’s report that McKenzie had shoplifted from the store earlier that day and on prior occasions. After reviewing surveillance video, the officer determined that McKenzie was not the thief, and she was released. McKenzie sued Walgreens, alleging that the employee knew that she was not the person in the video before reporting to the police and that she was targeted because of her race. She asserted several tort claims, including a claim that Walgreens was negligent in hiring, training, and supervising the employee who called the police. Walgreens moved to dismiss all her claims under the TCPA, arguing that its employee’s report to law enforcement was a protected exercise of a First Amendment right. The trial court denied the motion, and Walgreens filed an interlocutory appeal.
A divided court of appeals panel affirmed with respect to the negligent-hiring claim but reversed otherwise and dismissed the remainder of McKenzie’s claims. The majority reasoned that the negligent-hiring claim does not implicate the TCPA because it is based in part on conduct by Walgreens occurring before the incident and not based entirely on the employee’s constitutionally protected police report. Thus, the majority held, Walgreens did not meet its initial burden to demonstrate that the TCPA applies to this claim. One justice dissented in part, opining that the majority had erroneously treated the negligent-hiring claim as an independent tort claim that may be viable even if there is no liability for an underlying tort. By a 5-4 vote, the court denied Walgreen’s motion for rehearing en banc.
The Supreme Court granted Walgreen’s petition for review.
Case summaries are created by the Court's staff attorneys and law clerks and do not constitute the Court’s official descriptions or statements. Readers are encouraged to review the Court’s official opinions for specifics regarding each case.