Case: 12-40467 Document: 00512292765 Page: 1 Date Filed: 07/01/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 1, 2013
No. 12-40467 Lyle W. Cayce
Clerk
BARBARA ALLAMON,
Plaintiff–Appellant
v.
ACUITY SPECIALTY PRODUCTS, INCORPORATED; ZEP,
INCORPORATED; ROSS HARDING,
Defendants–Appellees
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 1:10-CV-00294
Before WIENER, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff–Appellant Barbara Allamon (“Allamon”) appeals from the
dismissal on summary judgment of her suit against Defendants–Appellees
(collectively, “Zep”) for breach of her employment contract with Zep. We agree
with the district court that there was no breach because Zep modified the
disputed term of Allamon’s at-will employment.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-40467
Even if Allamon’s evidence were admissible, the oral promise of
employment “as long as she’s able and performance is satisfactory” is too general
and equivocal to rebut the strong Texas presumption of at-will employment.1
Neither are we persuaded by Allamon’s contention that the worker’s
compensation backdrop to this case weakens the requirement that, to vitiate the
presumption of at-will employment, Zep had to “unequivocally indicate a definite
intent to be bound not to terminate [her] except under clearly specified
circumstances.”2 And, in the absence of any enforceable “original agreement,”
Allamon’s mutual-mistake argument would fail even if she had preserved it in
the district court.3
Because Allamon was employed at-will, Zep could “impose modifications
to the employment terms as a condition of continued employment.”4 The
summary judgment record conclusively establishes that (1) Allamon and Zep
jointly amended the terms of her employment in response to her employer’s “Hot
Sauce” program, and (2) Allamon continued to work for Zep after receiving
unequivocal notification that her previously exclusive client lists would be
shared with the inside sales team.5 Accordingly, the exclusivity provision was
modified, not breached. Indeed, summary judgment in favor of Zep was
warranted on this basis alone. And, like the district court, we need not and
1
See Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998).
2
Id.
3
See Technical Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 408
(5th Cir. 2012).
4
Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986).
5
See id. (“If the employer proves that he has unequivocally notified the employee of the
changes, the employee’s continuing employment will constitute acceptance as a matter of
law.”).
2
Case: 12-40467 Document: 00512292765 Page: 3 Date Filed: 07/01/2013
No. 12-40467
therefore do not address the effect of the later written settlement which
superseded all prior agreements.
AFFIRMED.
3