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Hughes v. Giammanco

Court of Appeals of Texas, First District

May 30, 2019


          On Appeal from the 129th District Court Harris County, Texas Trial Court Case No. 2018-26459

          Panel consists of Justices Keyes, Higley, and Landau.



         Heather Hughes is the subject of a petition for pre-suit discovery filed by Peter Giammanco-Hughes's former boss who seeks her deposition to investigate, before filing suit, whether she is the source of rumors that he committed sexual misconduct in the workplace. See Tex. R. Civ. P. 202.1. Hughes moved to dismiss the petition under the Texas Citizens Participation Act (TCPA or the "Act"), arguing that Giammanco seeks her deposition as retribution for an employment-discrimination charge she filed with the Equal Employment Opportunity Commission (EEOC) and to discourage others from speaking out against the discriminatory employment practices. See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. After the trial court denied her motion to dismiss, Hughes filed this interlocutory appeal. See id. § 51.014(a)(12) (authorizing appeal of interlocutory order denying TCPA motion to dismiss). In accordance with this Court's precedent holding that a Rule 202 petition is not a "legal action" subject to a TCPA motion to dismiss, we affirm. See Caress v. Fortier, No. 01-18-00071-CV, 2019 WL 2041325, at *2 (Tex. App.-Houston [1st Dist.] May 9, 2019, no pet. h.).


         Giammanco is an executive and officer at U.S. Legal Support, Inc., a national litigation services and support company. Hughes worked for U.S. Legal for more than a decade, first, in sales and, later, as the HIPAA Privacy Officer, reporting directly to Giammanco. U.S. Legal terminated Hughes's employment in November 2017 when, according to Giammanco, her position was eliminated.

         Giammanco alleges that, after Hughes left the company, he learned of rumors that he had acted inappropriately at work. The rumored misconduct, which Giammanco asserts did not take place, included an extra-marital affair with a co-worker and his promotion of one or more female employees in exchange for sexual favors. Giammanco claims that accusations of sexual misconduct are "highly damaging" to men in his position.

         Because he believes Hughes may be a source of the rumors he claims are personally and professionally damaging, Giammanco seeks to depose Hughes under Rule of Civil Procedure 202 before deciding whether to sue her. See Tex. R. Civ. P. 202.1 ("A person may petition the court for an order authorizing the taking of a deposition . . . (a) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or (b) to investigate a potential claim or suit."). Giammanco says the purpose of the requested deposition is "to investigate . . . and determine whether litigation should be initiated against Hughes for potential claims of defamation, tortious interference with existing contract, and tortious interference with prospective relations."

Giammanco identified three deposition topics:
(1) Any statements Hughes made about Giammanco before or after U.S. Legal terminated her employment;
(2) Any statements Hughes made, whether before or after U.S. Legal terminated her employment, about Giammanco's relationship with female employees; and
(3) Any knowledge Hughes has of statements made by current or former U.S. Legal employees about Giammanco's conduct, reputation, and relationships with female employees.

         Giammanco asserts that, because these topics are limited in scope, the likely benefit of allowing him to depose Hughes outweighs the burden or expense of a deposition. See Tex. R. Civ. P. 202.4(a)(2) (requiring trial court to order properly requested pre-suit deposition if it finds that "the likely benefit of allowing" the deposition "outweighs the burdens or expense of the procedure").

         Hughes filed a combination response, opposing the requested deposition and moving to dismiss Giammanco's endeavor under the TCPA. See Tex. Civ. Prac. & Rem. Code § 27.003(a) ("If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action."). Hughes ascribes the termination of her employment not to any corporate reorganization but to her decision to challenge U.S. Legal's employment practices as contrary to federal law. Hughes avers that, in "the years and months" before she lost her job, U.S. Legal discriminated against female employees on the basis of sex and then retaliated against her when she reported it to human resources personnel, eventually leading her to file a discrimination charge with the EEOC in December 2017 and an amended charge in February 2018.[1] She argues that Giammanco's Rule 202 petition is a "legal action" based on or related to her rights of free speech, to petition, and of association and that, in order to avoid dismissal, Giammanco had to (but could not) establish by clear and specific evidence that the likely benefit of the requested deposition outweighed the burden or expense.

         Hughes denied that she is the source of any "false or damaging information about Giammanco" and pointed to allegations made in a 2012 lawsuit involving Giammanco as evidence that the complained-of rumors were circulating long before she left U.S. Legal.

         Giammanco opposed dismissal, arguing in response that the TCPA does not apply to a Rule 202 proceeding and that, even if it does apply, he established the elements not only for a pre-suit deposition but also of his potential claims with sufficient factual detail to avoid dismissal. Giammanco supported his response with two affidavits-(1) the employee with whom he is alleged to have had an affair and (2) a former employee. The first affiant denied the affair and stated that she learned of Hughes's statements about the alleged affair from coworkers. The second affiant recalled Hughes making a statement about the alleged affair, but she opined that Hughes was not spreading a rumor because others had made the same allegations.

         After an oral hearing, the trial court denied Hughes's motion to dismiss. Hughes appealed and moved for an emergency stay of the trial proceedings pending the resolution of her appeal. Because we granted a stay, the trial court has not yet ruled on Giammanco's Rule 202 petition.


         In determining whether the trial court erred by refusing to dismiss Giammanco's Rule 202 petition under the TCPA, we begin with the legal standards that guide our determination-specifically, the standard codified by the Legislature for dismissal of a "legal action" brought to chill the valid exercise of protected rights, see Tex. Civ. Prac. & Rem. Code §§ 27.001-.011, and the standard promulgated by the Texas Supreme Court for pre-suit discovery, see Tex. R. Civ. P. 202.

         A.Principles of law and ...

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