     Case: 17-20562      Document: 00514388419         Page: 1    Date Filed: 03/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-20562
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                  Summary Calendar                              FILED
                                                                          March 15, 2018
                                                                           Lyle W. Cayce
ANTHONY GALENTINE,                                                              Clerk

                                                 Plaintiff - Appellant

v.

TIDEPORT DISTRIBUTING, INCORPORATED

                                                 Defendant - Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-2597




Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Anthony Galentine worked as a truck driver for Tideport Distributing.
Galentine was paid a set amount—first $165 and later $185—for each delivery
of jet fuel from Galena Park, Texas to Lackland Air Force Base near San
Antonio. At some point during his employment, Galentine began to assert that
he had been promised 25% of the amount Tideport received for each load.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20562

Tideport responded that it had not made such a promise and was paying
Galentine the same set rate other drivers received. While still employed,
Galentine sued for breach of contract and fraud based on Tideport’s failure to
pay him the 25%. He also alleged an overtime violation of the Fair Labor
Standards Act (FLSA) and retaliation under that federal law. At some point
while the lawsuit was pending, Galentine stopped driving for Tideport when it
continued to refuse to pay him the 25%. He then added to his lawsuit a claim
for racial discrimination and retaliation under Title VII.
      The district court set the common law and FLSA retaliation claim for
trial and stayed the Title VII claims (Galentine had dismissed the FLSA wage
claim). At a pretrial conference, the district court dismissed the fraud claim
under the economic loss rule which “generally precludes a recovery in tort for
economic losses resulting from a party’s failure to perform under a contract
when the harm consists only of the economic loss of a contractual expectancy.”
Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 445 S.W.3d 716, 718
(Tex. 2014). After Galentine finished presenting his case at trial, the district
court granted judgment for the defense as matter of law on the contract claim
because there was no evidence to support the allegation that the company had
agreed to pay Galentine 25% of the load. Having reviewed the trial record, we
agree that judgment as a matter of law was warranted on the contract claim.
This also dooms the fraud claim which was premised on the same alleged, but
not proven, promise. On top of that, the district court correctly ruled that the
economic loss rule bars the fraud claim.
      The district court also granted judgment as a matter of law on
Galentine’s FLSA retaliation suit on the ground that he had not shown he
engaged in protected activity. Galentine argues on appeal that the protected
activity need only involve a good faith belief on the employee’s part that the



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                                 No. 17-20562

company is violating the FLSA (even if it actually is complying with the law),
but he does not identify any evidence showing that he had such a belief. His
complaints to the company were not about FLSA overtime, but about the 25%
he says he was promised. But he never said he thought a federal statute
guaranteed him that pay, and it would not have been reasonable to believe
that.
        After the trial, the district court granted summary judgment on
Galentine’s Title VII racial discrimination and retaliation claims. Galentine
does not challenge the dismissal of the discrimination claim.        As for the
retaliation claim, we affirm its dismissal because Galentine has not shown
protected activity about which the company was aware. He mentions a lawsuit
he filed against a former employer, but there is no evidence showing that
Tideport was aware that was a Title VII lawsuit. In response to the summary
judgment allegation, Galentine for the first time averred that he had
complained to a manager about pay disparities between black and white
drivers. This new allegation, never included in the Title VII complaint filed
with the EEOC, contradicts Galentine’s trial testimony that Tideport was
paying all drivers 25% of load. As there is no explanation for this change from
his sworn trial testimony, the affidavit cannot be used to defeat summary
judgment. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996).
        The judgment of the district court is AFFIRMED.




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