     Case: 18-20808      Document: 00515103809         Page: 1    Date Filed: 09/04/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                    No. 18-20808                       September 4, 2019
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
SRI RAGHUNATHA VENKATESWARA BABU BANGARU,

              Plaintiff - Appellant

v.

SHELL U.S. HOSTING COMPANY; SHELL EXPLORATION &
PRODUCTION COMPANY,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4.17-CV-629


Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Sri Raghunatha Venkateswara Babu Bangaru
(“Bangaru”) appeals the district court’s dismissal of his breach of contract
claim against Shell U.S. Hosting Company (“SUSHCO”), his former employer,
on summary judgment. He also appeals the district court’s denial of his motion




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 18-20808       Document: 00515103809         Page: 2    Date Filed: 09/04/2019



                                      No. 18-20808
to strike part of a declaration submitted by SUSHCO. For the reasons below,
we AFFIRM the district court’s decision.
                                    I. Background
       Bangaru began working for Shell, a global group of energy and
petrochemical companies, in 1997. Over the next two decades, he worked in
various countries for eleven different companies and subsidiaries under the
Shell umbrella.
       In December 2014, SUSHCO offered Bangaru a long-term international
assignment (“LTIA”) in Houston, Texas. Along with his offer letter, Bangaru
received the LTIA Employment Terms (“LTIA Terms”), issued in lieu of a
written contract, which “set out all the terms and conditions of [his]
employment with SUSHCO for the purpose of his LTIA.” The LTIA Terms
listed Bangaru’s base country as India and his host country as the United
States. An employee’s base country, “established at the time of recruitment,”
governs, among other things, his compensation, retirement benefits, and
severance. Bangaru was a citizen of India when he began working for Shell, so
India was designated as his “base country” for the entirety of his employment
with Shell. 1 An employee’s host country is the country in which the employee
“is working as an international assignee.”
       In January 2016, SUSHCO sent Bangaru a “Repatriation Notice”
explaining that his SUSHCO assignment was ending. This notice gave
Bangaru until May 1, 2016 to find a new assignment with a Shell entity.
Otherwise, he would be repatriated back to his base country, and “the [b]ase




       1 In early 2014, Bangaru renounced his Indian citizenship and became a citizen of the
United Kingdom. However, Bangaru did not request that Shell update his base country to
reflect his new citizenship until April 2015––after he had accepted SUSHCO’s offer. Shell
denied the request. Shell’s policies do not require that an employee’s base country match his
citizenship.
                                             2
    Case: 18-20808       Document: 00515103809       Page: 3    Date Filed: 09/04/2019



                                    No. 18-20808
[c]ountry severance process [would] commence, depending upon the policies of
his [b]ase [c]ountry.”
      Bangaru secured a short-term international assignment in Brunei from
May to November 2016. Bangaru did not find another position, and his last
day on Shell’s payroll was December 31, 2016. Prior to the end of his
employment, Bangaru asked to be severed in the United States, his host
country. Generally, a terminated employee is repatriated and severed in his
base country, as Bangaru’s Repatriation Notice indicated. However, Bangaru
qualified for an exception to this policy, so Shell agreed to sever him in the
United States instead of India. Upon his departure from Shell, Bangaru
accepted most of his severance package but rejected the final severance
payment and preserved the right to challenge the payment.
      Shortly thereafter, Bangaru sued SUSHCO for breach of contract, 2
alleging that his former employer did not follow proper severance procedures
and miscalculated Bangaru’s severance pay. In July 2018, SUSHCO moved for
summary judgment, disputing both allegations. In his contemporaneous
response, Bangaru filed (1) a motion to strike two sentences from a declaration
submitted by SUSHCO and (2) a motion to withdraw his admissions. SUSHCO
responded and filed a motion to strike some of Bangaru’s evidence. Four
months later, after additional briefing by the parties, the district court granted
summary judgment in favor of SUSHCO. Additionally, the court rejected both
Bangaru’s and SUSHCO’s motions to strike as moot. Bangaru appeals the
district court’s grant of summary judgment and the denial of his motion to
strike.




      2 Bangaru also sued Shell Exploration and Production Company (“SEPCO”) and Shell
Oil Products, U.S. The district court dismissed the claims against SEPCO on summary
judgment. Shell Oil Products was never served. Neither entity is involved in this appeal.
                                           3
    Case: 18-20808     Document: 00515103809      Page: 4   Date Filed: 09/04/2019



                                  No. 18-20808
                           II. Standard of Review
      We review a grant of summary judgment “de novo, applying the same
legal standards as the district court.” Prospect Capital Corp. v. Mut. of Omaha
Bank, 819 F.3d 754, 756–57 (5th Cir. 2016). Summary judgment is proper if
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
      We review a denial of a motion to strike evidence for abuse of discretion,
though such denials are “also subject to harmless error review.” Mahmoud v.
De Moss Owners Ass’n, Inc., 865 F.3d 322, 327 (5th Cir. 2017).
                                III. Discussion
A. Breach of Contract
      This is a suit for breach of contract brought under diversity jurisdiction
pursuant to 28 U.S.C. § 1332. As such, the substantive law of the forum state
governs. In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).
Texas is the forum state in this case. Under Texas law, a breach of contract
claim requires a plaintiff to prove four elements: (1) a valid contract exists; (2)
the plaintiff performed or tendered performance; (3) the defendant breached
the contract; and (4) the plaintiff suffered damages as a result of the breach.
Wells v. Minn. Life Ins. Co., 885 F.3d 885, 889 (5th Cir. 2018).
      Bangaru alleges that SUSHCO breached the LTIA Terms in two ways.
First, SUSHCO did not provide him with a second Repatriation Notice after
his Brunei assignment, an End of Assignment Form/Letter, or a Host Country
Severance Notice. Second, SUSHCO miscalculated Bangaru’s severance pay.
We address each of these alleged breaches in turn, keeping in mind that the
parties concede that the LTIA Terms are unambiguous, so their interpretation
“is a question of law for the court to decide.” Gonzalez v. Denning, 394 F.3d
388, 392 (5th Cir. 2004). The court’s primary consideration is to “ascertain the


                                        4
    Case: 18-20808    Document: 00515103809     Page: 5   Date Filed: 09/04/2019



                                 No. 18-20808
true intent of the parties as expressed in the instrument,” giving “effect to all
provisions such that none are rendered meaningless.” Id.
1. SUSHCO’s Provision of Notice
      Bangaru argues that SUSHCO failed to provide him with notices
required by the LTIA Terms: a second Repatriation Notice, an End of
Assignment Form/Letter, and a Host Country Severance Notice. As evidence,
he points out that SUSHCO admits it did not provide him with these notices.
But this admission alone does not prove breach. For SUSHCO to have breached
the LTIA Terms by failing to provide these documents, the terms must have
required SUSHCO to provide the notices. Bangaru has not, before this court or
the district court, pointed to any language in the LTIA Terms requiring
SUSHCO provide these notices, nor have we identified any such language.
      To begin, the LTIA Terms do not mention any of the notices that Bangaru
claims they require. In fact, the terms unambiguously provide that any notice
of termination is discretionary: “[T]he employment relationship may be
terminated at any time, without notice, either by you or by [SUSHCO].”
Bangaru argues that this clause is obviated by the fact the LTIA Terms
“incorporate” Shell’s International Mobility Policies (“IMPs”), and that the
IMPs required these notices. This assertion fails for two reasons.
      First, the plain language of the LTIA Terms indicates that the IMPs
place a duty on Bangaru, not SUSHCO: the terms state that the IMPs “apply
to [Bangaru] and [he is] expected to abide by them.” The IMPs are described
as “contain[ing] information about benefits which [Bangaru] may or may not
be eligible for depending on [his] assignment type.” The LTIA Terms do not
state (1) that SUSHCO must abide by the IMPs or (2) that SUSHCO
guarantees any rights or benefits to Bangaru. In fact, SUSHCO “reserve[s] the
right to amend these policies from time to time at its [] discretion.” What is
more, they explicitly leave the decision to provide notice in SUSHCO’s hands,
                                       5
    Case: 18-20808      Document: 00515103809       Page: 6    Date Filed: 09/04/2019



                                    No. 18-20808
noting that SUSHCO “may give [Bangaru] a period of notice at the end of your
LTIA in line with” the applicable IMP.
      Second, even if the LTIA Terms required that SUSHCO adhere exactly
to the IMPs, the IMPs do not place a duty on Shell to provide Bangaru with
the notices at issue. As to a second Repatriation Notice, Bangaru argues that
his short-term international assignment in Brunei restarted the notice period
governing his long-term assignment, triggering an obligation to provide a
second Repatriation Notice. However, Bangaru does not point to language in
the record that supports this assertion. As the district court concluded, the
LTIA Terms “govern LTIA employees, not [short-term] employees.” Bangaru
“points to no specific language in the document that references short-term
employees in any manner.” Furthermore, evidence submitted by Bangaru
states that he was told his Brunei assignment “did not reset or change his
current ‘at risk’ status.”
      As to the End of Assignment Form/Letter and Host Country Severance
Notice, Bangaru points to language in Shell’s “HR Guide to Manage
Repatriation and Severance for LTIA and LNN Employees” that references HR
employees are completing End of Assignment Forms/Letters and Host Country
Severance Notices. 3 We agree with the district court that nothing in the HR
Guide “suggests that [SUSHCO] is obligated to provide [Bangaru] with these
specific documents.” First, as discussed above, the LTIA Terms do not require
SUSHCO to adhere to the IMPs, whether contained in the HR Guide or not.
And second, the language in the HR Guide is directed at HR personnel and
mandates their responsibilities. As the Introduction states, “[T]his guide has
been developed specifically for use by HR . . . and is not to be distributed outside



      3 The IMPs are not in the record. Instead the record contains the HR Guide, which
compiles information “collected from relevant sections” of the IMPs.
                                          6
    Case: 18-20808    Document: 00515103809     Page: 7   Date Filed: 09/04/2019



                                 No. 18-20808
of the HR function” We don’t see, nor has Bangaru directed us to, any language
indicating that the processes contained in the HR Guide convey a right to such
processes by Bangaru. We agree with the district court that, “taken as a whole,
the LTIA [Terms] and [IMP] allow [SUSHCO] broad flexibility regarding the
notice process.”
      In place of pointing to language that supports his right to these notices,
Bangaru argues that the district court erred by “improperly shift[ing] the
burden to Bangaru . . . since Bangaru did not point to specific language
showing a requirement” to provide the notices. According to Bangaru,
summary judgment was improper because SUSHCO never “cited any
unambiguous contractual provision” sufficient to show the notices weren’t
required. This is incorrect. Where “the non-movant bears the burden of proof
at trial,” and the movant “point[s] to an absence of evidence,” the non-movant
must demonstrate “by competent summary judgment proof that there is an
issue of material fact warranting trial.” In re La. Crawfish Producers, 852 F.3d
456, 462 (5th Cir. 2017). Here, SUSHCO (the movant) asked for summary
judgment by pointing to the absence of any language mandating the notices.
Therefore, the burden shifted to Bangaru (the non-movant) to show that there
was an issue of material fact warranting trial. For the reasons discussed above,
Bangaru did not meet this burden.
2. SUSHCO’s Severance Pay Calculation
      Bangaru also argues that SUSHCO breached the LTIA Terms by
miscalculating his severance pay. The parties agree that when an employee is
severed in the host country, the severance policy of the base country still
governs. Therefore, Bangaru’s severance pay was calculated using the policy
of the specified Shell entity in India. Bangaru argues that the severance pay
calculation did not follow “Indian retrenchment law” or an “Indian touchdown
requirement” and was therefore incorrect.
                                       7
    Case: 18-20808    Document: 00515103809    Page: 8   Date Filed: 09/04/2019



                                No. 18-20808
      As the movant, SUSHCO needed to put forth evidence establishing that
there was no genuine question that it correctly calculated Bangaru’s severance
pay. To that end, SUSHCO introduced evidence that HR staff in the United
States worked with HR staff in India to calculate Bangaru’s severance. The
HR staff followed the India Redundancy Guidelines, contained in the record,
providing that a terminated employee is eligible for severance pay equal to one
month of “guaranteed cash” for every year of employment service, up to six
months of insurance benefits, pay for unused vacation, a prorated bonus, end-
of-service benefits, and a three-month notice period to find alternate
employment, among other things. Based on these calculations, Bangaru was
offered almost $160,000 in severance pay in addition to other payments.
      Bangaru does not argue that the HR staff failed to follow the Indian
Redundancy Guidelines. Instead, he argues that the calculations failed to
follow “Indian retrenchment law” and the “Indian touchdown requirement.”
Neither of these terms are found in the LTIA Terms, the HR Guide, or the
India Redundancy Guidelines. Bangaru points to no reference to Indian
retrenchment law in any correspondence with Shell. His only reference to the
Indian touchdown requirements comes from a July 2014 email sent before he
was offered employment with SUSHCO. The email was in reference to
repatriation, but Bangaru was not required to repatriate to India.
      Instead of explaining what these terms mean or why they were needed
to calculate his severance payments, Bangaru puts forth his own calculations,
arguing that he is entitled to roughly $1.5 million in severance payments under
Indian retrenchment law. The court is left guessing as to what Indian
retrenchment law encompasses or how it affects these calculations.
      Bangaru also offers the employment contract of an anonymous Shell
employee who worked in India and was allegedly provided a different
severance package. Bangaru provides no context for this document: there is
                                      8
    Case: 18-20808    Document: 00515103809     Page: 9   Date Filed: 09/04/2019



                                 No. 18-20808
neither an allegation nor evidence that this employee was governed by the
same employment terms or severance standards as Bangaru. The district court
correctly held that it was “unable to determine whether [Bangaru] would have
been entitled to the same pay or similar allowances or that other Shell
employees in India received similar pay or agreements.”
      In sum, SUSHCO met its burden as the movant to demonstrate the
absence of a genuine issue of material fact. Ragas v. Tenn. Gas Pipeline Co.,
136 F.3d 455, 458 (5th Cir. 1998). Bangaru failed to counter with evidence that
supports his claims. Id. (The non-movant “may not rest upon mere allegations
contained in the pleadings, but must set forth and support by summary
judgment evidence specific facts showing the existence of a genuine issue for
trial.”) Therefore, we AFFIRM the district court’s grant of summary judgment
on all claims.
      We also AFFIRM the district court’s denial of Bangaru’s motion to strike.
The district court’s opinion did not rely on the two sentences Bangaru wished
to strike. Even if it did, the two sentences repeat other evidence in the record,
including evidence Bangaru submitted. Any abuse of discretion was harmless
and doesn’t warrant reversing summary judgment. Mahmoud, 865 F.3d at 327.
                               IV. Conclusion
      We AFFIRM the district court’s grant of summary judgment to SUSHCO
and denial of Bangaru’s motion to strike.




                                       9
