     Case: 19-20374      Document: 00515295143         Page: 1    Date Filed: 02/03/2020




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

                                    No. 19-20374
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                      February 3, 2020
                                                                          Lyle W. Cayce
CURTIS WIGGINS,                                                                Clerk


              Plaintiff - Appellant

v.

GOLDEN CORRAL CORPORATION,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:18-CV-573


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Curtis Wiggins brought a state-law defamation claim and a failure-to-
promote claim under Title VII against the defendant, Golden Corral
Corporation. The district court granted summary judgment in favor of Golden
Corral on both claims. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-20374
        We review a summary judgment de novo, applying the same standards
as the district court. Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 406
(5th Cir. 2016). Summary judgment is appropriate when, viewing all facts in
the light most favorable to the non-movant, “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).
                                          I.
        To prevail on a defamation claim in Texas, a private plaintiff must show
that (1) the defendant published a statement about the plaintiff, (2) the
statement was defamatory, and (3) the defendant acted negligently regarding
the truth of the statement. 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.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d
572, 579 (Tex. 2017) (cleaned up).
        Wiggins fails to point to any evidence of publication by Golden Corral of
any allegedly defamatory statements. He testified that he was unaware of
anyone—other than attorneys he was looking to potentially hire—who had
seen the internal forms he claims contain defamatory material. Further, he
testified that he is unaware of anyone to whom a Golden Corral employee
published allegedly defamatory statements. He testified that he is unaware of
any Golden Corral employee who has ever spoken to anyone outside of the
organization regarding Wiggins’ employment there at all—when asked if he
was “aware of anybody that Golden Corral has told why you’re not working at
Golden Corral anymore,” Wiggins responded, “No.” In fact, he testified that he
is unaware of “anybody employed at any time by Golden Corral . . . who has


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                                       No. 19-20374
said anything about [him] to anybody.” Wiggins’ deposition makes it clear that
he has no evidence of publication of any allegedly defamatory statement.
       Wiggins nevertheless seeks to establish publication by arguing that,
when he applies for new employment, he is required to disclose on applications
that he was fired for cause by Golden Corral. This theory of compelled self-
disclosure has been squarely rejected by the Supreme Court of Texas. See
Rincones, 520 S.W.3d at 529 (“[T]he 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.”). We therefore hold
that Wiggins has failed to establish publication, a necessary element of his
defamation claim. See WFAA-TV, Inc., 978 S.W.2d at 571. The district court
correctly granted summary judgment in favor of Golden Corral. 1
                                             II.
       Before filing a claim under Title VII in federal court, plaintiffs must first
“exhaust their administrative remedies by filing a charge of discrimination
with the Equal Employment Opportunity Commission” within a statutorily
mandated time period. Davis v. Fort Bend Cty., 893 F.3d 300, 303 (5th Cir.
2018), aff’d sub nom. Fort Bend Cty. v. Davis --- U.S. ---, 139 S. Ct. 1843 (2019).
Administrative exhaustion for Title VII claims is mandatory (but not
jurisdictional), see 139 S. Ct. at 1851, and courts will dismiss claims not
properly exhausted, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109
(2002).



       1 The operative complaint is Wiggins’ first amended complaint. Wiggins filed multiple
other proposed amended complaints, but the court denied him leave to file those documents.
Assuming—but not deciding—that Wiggins has sufficiently raised this issue for our
consideration, he fails to show on appeal that the decisions by the district court to deny his
motions for amended pleadings amount to an abuse of discretion. See Rio Grande Royalty
Co., Inc. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010) (“A district
court’s denial of a motion for leave to amend a pleading is subject to review for abuse of
discretion.”).
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                                  No. 19-20374
      Wiggins filed a charge with the EEOC shortly after his termination. But
the charge does not assert any claim based on a failure to promote. Rather, it
asserts that other workers received more favorable schedules, that they were
given food while on the clock, and that Ms. Pena (the general manager) treated
black employees in a “tyrant-like manner.” The charge also alleges that
Wiggins was ultimately terminated because of his race. Nowhere in the charge
did Wiggins claim that he was not promoted because of his race. The failure-
to-promote theory did not appear until Wiggins’ First Amended Complaint,
filed August 28, 2018. We hold that Wiggins failed to administratively exhaust
his failure-to-promote claim. See Filer v. Donley, 690 F.3d 643, 647 (5th Cir.
2012) (“Ordinarily, an employee may not base a Title VII claim on an action
that was not previously asserted in a formal charge of discrimination to the
EEOC, or that could not reasonably be expected to grow out of the charge of
discrimination.” (cleaned up)). The district court therefore properly granted
summary judgment in Golden Corral’s favor.
      Even if he had properly exhausted the claims, Wiggins fails to show that
Golden Corral’s proffered justifications for the challenged hiring decisions were
pretextual or that his race was a “motivating factor” in the decision. In failure-
to-promote cases, if a plaintiff makes a prima facie showing of discrimination,
the burden shifts to the defendant to show that the employment decisions were
made for legitimate, non-discriminatory reasons. See Autry v. Fort Bend Indep.
Sch. Dist., 704 F.3d 344, 347 (5th Cir. 2013). If a defendant offers sufficient
reasons, the burden shifts back to the plaintiff to show that (1) the reasons are
either a pretext for discrimination, or (2) the reasons, even if true, were only
one reasons for the employment decision, “and another motivating factor is the
plaintiff’s protected characteristic.” Id. (cleaned up).
      Here, Golden Corral offered at least one legitimate, non-discriminatory
reason for its decision to hire others as general managers of the restaurant
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                                     No. 19-20374
instead of promoting Wiggins: he was not qualified. 2 Golden Corral’s policy
requires that a Hospitality Manager work as a Kitchen Manager as well before
being qualified for promotion to General Manager. Wiggins worked only as a
Hospitality Manager and had never worked as Kitchen Manager. Armendariz
and Pena, who were hired as General Managers at the same restaurant at
which Wiggins worked, both had relevant experience as general managers of
comparable restaurants. Wiggins fails to establish that this proffered reason
was actually a pretext for discrimination or even that race was a motivating
factor in the challenged employment decisions. For this additional reason,
summary judgment in Golden Corral’s favor was appropriate.
                                           III.
      Finally, we briefly address Wiggins’ contention that the case was moot
and summary judgment was therefore improper. Wiggins appears to argue
that Golden Corral’s summary judgment motion was mooted by his filing of
motion for leave to file an amended complaint. This is incorrect. The operative
pleading in this case was Wiggins’ first amended complaint. That pleading
contained two claims: defamation and failure to promote under Title VII. The
district court denied all of Wiggins’ requests for leave to file amended
complaints. Wiggins does not explain how any of this somehow rendered the
summary judgment motion (or the case) moot.
      AFFIRMED




      2 For purposes of this analysis, we assume, without deciding, that Wiggins satisfied
his prima facie burden.
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