Exxon Mobil Corp. v. Rincones

Citation520 S.W.3d 572
Decision Date26 May 2017
Docket NumberNo. 15-0240,15-0240
Parties EXXON MOBIL CORPORATION, WHM Custom Services, Inc., and DISA, Inc., Petitioners, v. Gilberto RINCONES, Respondent
CourtSupreme Court of Texas

David W. Waddell, Houston, for Amicus Curiae Houston Area Safety Council.

Audrey Mullert Vicknair, Law Office of Audrey Mullert Vicknair, Corpus Christi, Keith B. Sieczkowski, Clinton Twaddell III, Branscomb P.C., Corpus Christi, Nina Cortell, Allen Ryan Paulsen, Haynes and Boone, LLP, Dallas, Polly B. Fohn, Haynes & Boone LLP, Houston, Holly H. Williamson, Sheri L. Caldwell, Hunton & Williams LLP, Houston, for Petitioners.

Ricardo R. Godinez, Godinez Law Firm, P.C., McAllen, Gilberto Hinojosa, Law Offices of Gilberto Hinojosa & Associates, P.C., Brownsville, for Respondent.

Justice Brown delivered the opinion of the Court.

This is 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.

I. Background

Gilberto 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 testing.

The 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.

WHM 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.

Rincones 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.

Instead, 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.

Rincones 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 another company.

Rincones 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.

Exxon 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.

Rincones 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.

We address each of these nine claims against the three petitioners in turn.

II. Claims against WHM

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.

A. Defamation

The 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 self-defamation.

The 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).

Nevertheless, 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...

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