Exxon Mobil Corporation, WHM Custom Services, Inc., and DISA, Inc., Petitioners,
Gilberto Rincones, Respondent
February 7, 2017
Petition for Review from the Court of Appeals for the
Thirteenth District of Texas
Justice Lehrmann did not participate in the decision.
a complex employment-discrimination case implicating the
Texas Commission on Human Rights Act and multiple common-law
tort doctrines. It arises from a report that Gilberto
Rincones, a refinery technician, failed an employment-related
drug test. Rincones sued his employer, WHM Custom Services,
Inc.; the owner of the refinery, Exxon Mobil; and the
drug-testing administrator, DISA, Inc. The trial court
granted summary judgment for Exxon, WHM, and DISA on all but
one claim, which it dismissed for lack of jurisdiction. In a
wide-ranging opinion on rehearing, the court of appeals
reversed the trial court's take-nothing judgment and
reinstated nine of Rincones's claims. We reverse in part,
vacate in part, and render judgment reinstating the trial
court's final take-nothing judgment against Rincones,
holding, among other things, that Texas law recognizes no
claim for compelled self-defamation.
Rincones was employed as a catalyst technician by WHM Custom
Services. WHM assigned him to work at Exxon's Baytown
refinery. Exxon retains WHM as an independent contractor to
build and repair the refinery's catalyst systems. Because
of the potentially hazardous nature of the work at the
Baytown refinery, Exxon requires its contractors, including
WHM, to have written drug policies. Those policies must meet
the requirements of the Houston Area Substance Abuse Program,
a project of the Houston Business Roundtable. When WHM hired
Rincones, he signed forms acknowledging its substance-abuse
policy and procedures and consenting to drug and alcohol
Substance Abuse Program requires random drug testing by
third-party administrators, who are responsible for providing
collection, testing, and reporting services conducted by
government-certified laboratories and licensed medical
professionals. The program maintains a list of third-party
administrators that satisfy its requirements. Under the
Substance Abuse Program, third-party administrators classify
contractors' employees as either "active" or
"inactive." Any employee who violates the
program's requirements, such as testing positive for a
forbidden substance, is classified as inactive. Exxon
mandates that no person with an inactive status may work at
the Baytown Refinery until completion of a rehabilitation
process outlined by the program.
designated DISA, which is on the program's approved list,
as its third-party administrator. In early April 2008, DISA
randomly selected Rincones to take a drug test, to which he
submitted on April 10. On April 14, DISA notified Rincones
that his sample tested positive for marijuana use. In
accordance with the Substance Abuse Program, DISA designated
Rincones as inactive, requiring him to complete certain
rehabilitation requirements before returning to work.
consistently maintains he did not use illegal drugs. He
argued the sample tested was not actually his; he complained
to WHM of supposedly "questionable testing procedures he
witnessed when he gave the sample"; and he requested
that he be allowed to retest with a new sample. A WHM
human-resources manager told Rincones he had to work with
DISA rather than WHM to regain active status. DISA offered to
retest the part of the sample retained by the lab. But
Rincones never fulfilled the requirements of the Substance
Abuse Program for returning to active DISA status.
on April 15, Rincones submitted a urine sample to a private
doctor. This test was negative, though the screening
threshold used in this non-random test was substantially
higher than the level required by the Substance Abuse
Program. Rincones informed WHM of the negative test results
and offered them as proof that the DISA drug-test results
were incorrect. WHM and DISA did not change their position
based on these privately obtained results, as the testing was
not sanctioned by the program.
never attempted to complete a rehabilitation program. And
though WHM never formally terminated Rincones, his inactive
status precluded WHM from assigning him any work. Rincones
filed for unemployment-compensation benefits with the Texas
Workforce Commission in August 2008. A month later the
commission determined that Rincones had been discharged
because of the results of the drug test but was eligible for
unemployment benefits. He later obtained employment with
filed a discrimination charge with the Texas Workforce
Commission - Civil Rights Division in October 2008,
complaining "that other non[-]Hispanic employees were
treated differently" under the Substance Abuse Program.
In April 2009, Rincones filed this lawsuit against WHM and
Dallas Mentor, an alleged "misidentified" party in
place of DISA. Rincones then amended his original petition in
July 2009 to add Exxon as a defendant and amended it a fourth
time in August 2010 to add DISA. He asserted various claims
against each of the three defendants, the relevant details of
which we discuss below.
and WHM moved to dismiss Rincones's pattern-or-practice
discrimination claim for lack of subject-matter jurisdiction.
They argued that Rincones did not exhaust his administrative
remedies by failing to include the facts supporting the claim
in his Texas Workforce Commission administrative charge. The
trial court dismissed the claim. Exxon and WHM also moved for
traditional and no-evidence summary judgment on the remainder
of Rincones's claims against them. DISA moved for
traditional summary judgment. The trial court granted summary
judgment against Rincones on the remaining claims against
Exxon, WHM, and DISA and entered a take-nothing judgment.
Rincones nonsuited all of his other claims, making judgment
against him final.
timely appealed, raising sixteen issues in the court of
appeals. 457 S.W.3d 221, 255 (Tex. App.-Corpus Christi 2015).
Withdrawing its first opinion and issuing a new one on
rehearing, the court of appeals overruled some of
Rincones's issues, but also reversed the trial
court's judgment on multiple grounds and remanded.
Id. at 231, 254. With respect to Exxon, the court of
appeals reinstated three of Rincones's claims:
negligence, tortious interference with an employment
contract, and pattern-or-practice discrimination.
Id. at 249, 251-53. It reinstated four claims
against WHM: individual discrimination, retaliation,
pattern-or-practice discrimination, and compelled
self-defamation. Id. at 223-49. It reinstated two
claims against DISA: tortious interference with a contract
and negligence. Id. at 253-56.
address each of these nine claims against the three
petitioners in turn.
Claims against WHM
Rincones's employer, argues the court of appeals erred by
reversing the trial court's take-nothing judgment as to
Rincones's claims for compelled self-defamation,
discrimination, retaliation, and pattern-or-practice
discrimination. Rincones argues that fact issues precluded
summary judgment and the court of appeals correctly revived
his claims. We review the trial court's summary judgment
de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). When reviewing a summary
judgment, we take as true all evidence favorable to the
nonmovant and we indulge every reasonable inference and
resolve any doubts in the nonmovant's favor. Id.
Even under this exacting standard, we nevertheless conclude
that the trial court correctly granted summary judgment for
WHM and the court of appeals erred by reversing.
court of appeals affirmed summary judgment for the
petitioners on Rincones's defamation claim. Yet it
concluded "that Texas law recognizes a cause of action
for defamation based on compelled self-publication in certain
limited circumstances" and revived Rincones's cause
of action for compelled self-defamation against WHM. 457
S.W.3d at 244-48. We disagree and reverse, holding that the
publication element of a defamation claim cannot be satisfied
by a theory of "compelled" self-disclosure and
there is no independent cause of action for compelled
elements of a defamation claim "include (1) the
publication of a false statement of fact to a third party,
(2) that was defamatory concerning the plaintiff, (3) with
the requisite degree of fault, and (4) damages, in some
cases." In re Lipsky, 460 S.W.3d 579, 593 (Tex.
2015) (citing WFAA-TV, Inc. v. McLemore, 978 S.W.2d
568, 571 (Tex. 1998)). "Publication" occurs if the
defamatory statements are communicated orally, in writing, or
in print to some third person who is "capable of
understanding their defamatory import and in such a way that
the third person did so understand." Austin v. Inet
Techs., Inc., 118 S.W.3d 491, 496 (Tex. App.-Dallas
2003, no pet.). As a general rule a defendant who
communicates a defamatory statement directly to the defamed
person, who then relays it to a third person, has not
published the matter to the third person. See
Restatement (Second) of Torts § 577 cmt. m (1977).
some Texas courts of appeals and sister-state courts have
recognized an exception to that general rule, often in
defamation suits brought by former employees against their
former employers. The theory is that a former employee's
publication to a third party can satisfy the publication
element because the former employee is effectively compelled
to publish the defamatory statement to prospective employers
when asked why he left his former employment. See Lewis
v. Equitable Life Assurance Soc'y of U.S., 389
N.W.2d 876 (Minn. 1986); cf. Cweklinsky v. Mobil Chem.
Co., 837 A.2d 759 (Conn. 2004). According to these
courts, compelled self-publication holds the originator of a
"defamatory statement liable for damages caused by the
statement where the originator knows, or should know, of
circumstances whereby the defamed person has no reasonable
means of avoiding publication of the statement or avoiding
the resulting damages; in other words, in cases where the
defamed person was compelled to publish the statement."
Lewis, 389 N.W.2d at 888.
handful of states have recognized the theory in various
forms,  and a narrow version has gained acceptance
in the Restatement (Second) of Torts. The Restatement
provides that a publication may occur despite the general
rule "[i]f the defamed person's transmission of the
communication to the third person was made . . . without an
awareness of the defamatory nature of the matter and if the
circumstances indicated that communication to a third party
would be likely . . . ." Restatement (Second) of Torts
§ 577 cmt. m (1977).
of our courts of appeals also have entertained the notion of
compelled self-defamation. The court of appeals in this case
relied on its own precedent from 1980: First State Bank
of Corpus Christi v. Ake, 606 S.W.2d 696, 701 (Tex. Civ.
App.-Corpus Christi 1980, writ ref'd n.r.e.) ("One
who communicates defamatory matter directly to the defamed
person, who himself communicates it to a third party, has not
published the matter to the third person if there are no
other circumstances. If the circumstances indicated that
communication to a third party is likely, however, a
publication may properly be held to have occurred.").
The Dallas and San Antonio Courts of Appeals have relied on
Ake to reach similar conclusions. Chasewood
Constr. Co. v. Rico, 696 S.W.2d 439, 445 (Tex. App.-San
Antonio 1985, writ ref'd n.r.e.) (relying on Ake
to conclude that a supervisor, as a reasonably prudent
person, should have expected his defamation of the employee
would be communicated to others by the employee); DeWald
v. Home Depot, No. 05-98-00013-CV, 2000 WL 1207124, at
*9 (Tex. App.-Dallas Aug. 25, 2000, no pet.)
("[E]mployers should expect terminated employees to
share with prospective employers the alleged reasons for
their termination. If an employer gives untrue defamatory
reasons for terminating an employee, it should recognize that
such conduct creates an unreasonable risk that the defamatory
matter will be communicated to prospective employers.");
see also Purcell v. Seguin State Bank & Tr. Co.,
999 F.2d 950, 959 (5th Cir. 1993) (finding, based on courts
of appeals' decisions, that "Texas courts . . .
recognize the narrow exception of self-compelled
recently, however, both the Dallas and San Antonio courts
hesitated to extend their recognition of the tort, in part
because this Court has never adopted it. See Austin,
118 S.W.3d at 499 (noting this Court has not recognized the
claim and declining to decide the issue because an element of
the claim was negated); Gonzales v. Levi Strauss &
Co., 70 S.W.3d 278, 283 (Tex. App.-San Antonio 2002, no
pet.) (reciting the elements of self-compelled defamation but
finding no evidence to support them); see also AccuBanc
Mortg. Corp. v. Drummonds, 938 S.W.2d 135, 148 (Tex.
App.-Fort Worth 1996, writ denied) (same).
we resolve the issue. We expressly decline to recognize a
theory of compelled self-defamation in Texas. In rejecting
it, we join an emerging majority of state courts that have
considered the issue, including those in Connecticut,
Massachusetts, Hawaii, Tennessee, Iowa, Pennsylvania, and New
court of appeals here found support for its conclusions in
our Neely v. Wilson opinion. 418 S.W.3d 52 (Tex.
2013). That reliance was misplaced. Neely involved a
third party's re-publication of a defamatory statement.
Id. at 61. Dr. Neely, a neurosurgeon, did not repeat
defamatory statements about himself to others. He alleged
defamation by a reporter and television station that repeated
a third party's allegations. Id. We reaffirmed
"a well-settled legal principle that one is liable for
republishing the defamatory statement of another."
Id. From there, the court of appeals reasoned,
"it is a small step to impose liability on one who
communicates a defamatory statement knowing or reasonably
foreseeing that the plaintiff would be compelled to repeat
the defamatory statement to others." 457 S.W.3d at 248.
We disagree and refuse to take that step.
holding today is in no tension with Neely. Indeed,
our holding today is consistent with our precedent. More than
half a century ago, we reaffirmed the rule "that if the
publication of which the plaintiff complains was consented
to, authorized, invited or procured by the plaintiff, he
cannot recover for injuries sustained by reason of the
publication." Lyle v. Waddle, 188 S.W.2d 770,
772 (Tex. 1945). Declining to recognize compelled
self-defamation is a natural extension of this rule.
were we to recognize compelled self-defamation, we would risk
discouraging plaintiffs from mitigating damages to their own
reputations. See Cweklinsky, 837 A.2d at 767.
Allowing the claim could enable any employee who disagrees
with his employer's reason for firing him to unilaterally
create an actionable tort against the employer. And "the
availability of increased damages from such a claim might
encourage publication of a defamatory statement by a
plaintiff who reasonably could have avoided such
republication or could have tried to explain to a prospective
employer the true nature of the situation and to contradict
the defamatory statement." Layne v. Builders
Plumbing Supply Co., 569 N.E.2d 1104, 1111 (Ill.App.Ct.
we fear that accepting the compelled self-defamation doctrine
would unacceptably impinge on the at-will employment
doctrine. "For well over a century, the general rule in
this State, as in most American jurisdictions, has been that
absent a specific agreement to the contrary, employment may
be terminated by the employer or the employee at will, for
good cause, bad cause, or no cause at all."
Montgomery Cty. Hosp. Dist. v. Brown, 965 S.W.2d
501, 502 (Tex. 1998). We have declined to recognize a claim
against employers for negligent investigation of at-will
employees' alleged misconduct because, "[b]y
definition, the employment-at-will doctrine does not require
an employer to be reasonable, or even careful, in making its
termination decisions." See Tex. Farm Bureau Mut.
Ins. Cos. v. Sears, 84 S.W.3d 604, 609 (Tex. 2002). By
its nature, the claim would require employers to conduct
investigations and make accurate findings before taking any
action against an employee or risk being sued. We have
already declined to recognize that duty. Moreover, as the
Seventh Circuit has noted, combining the doctrines of
self-defamation and defamation per se "gives employees
who regret not having negotiated an employment contract a
tort surrogate for it." Rice v. Nova Biomedical
Corp., 38 F.3d 909, 912 (7th Cir. 1994), cert.
denied, 514 U.S. 1111 (1995). For these reasons, we are
convinced compelled self-defamation is incompatible with
Texas's at-will employment system.
compelled self-defamation could also stifle workplace
communication by "chill[ing] honest evaluation and
communication about employee performance, as employers strive
to protect themselves from defamation claims by adopting
policies of providing only 'name, rank and serial
number' references." See Markita D. Cooper,
Between a Rock and a Hard Case: Time for a New Doctrine
of Compelled Self-Publication, 72 Notre Dame L. Rev.
373, 378 (1997); see also White v. Blue Cross & Blue
Shield of Mass., Inc., 809 N.E.2d 1034, 1038
(Mass. 2004). And we agree with our sister court in
Massachusetts that "[t]he expenditure of time,
resources, and money required to defend a claim of compelled
self-defamation inevitably will induce self-censorship by
employers." White, 809 N.E.2d at 1038.
the court of appeals here seems to have understood compelled
self-defamation to be an independent cause of action. But it
is probably better understood as an exception to the
publication requirement of a standard defamation claim.
See Cweklinsky, 837 A.2d at 764, 769; see
generally Cooper, supra at 11. Texans'
right to sue for reputational torts is not impinged by
declining to adopt a doctrine that modifies a plaintiff's
burden on one element of a defamation claim. See
Tex. Const. art. I, §§ 8, 13.
we expressly decline to recognize compelled self-defamation,
we reverse the court of appeals and render judgment for WHM
on this claim.
Discrimination Based on Race or National Origin
alleges he was discharged based on his race (Hispanic) and
national origin ("Mexican heritage/descent"). The
crux of this claim is that "other non-Hispanic employees
. . . were allowed to retest as a result of a false positive
result and allowed to return to work, " but he was not.
initial matter, WHM argues that the court of appeals
improperly relied on certain late-filed summary-judgment
evidence. But the court of appeals' error, if any, has
been waived. Even objected-to evidence remains valid
summary-judgment proof "unless an order sustaining the
objection is reduced to writing, signed, and entered of
record." Mitchell v. Baylor Univ. Med. Ctr.,
109 S.W.3d 838, 842 (Tex. App.-Austin 2003, no pet.). The
record contains no order sustaining the objection.
Legislature enacted the Texas Commission on Human Rights Act
"to address the specific evil of discrimination and
retaliation in the workplace." City of Waco v.
Lopez, 259 S.W.3d 147, 153 (Tex. 2008). As relevant
here, an employer commits an unlawful employment practice if,
because of race or national origin, the employer discharges
an individual or discriminates in any other manner against an
individual in connection ...