     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
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                               No. 12-40467

therefore do not address the effect of the later written settlement which
superseded all prior agreements.
     AFFIRMED.




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