     Case: 10-20130     Document: 00511179288          Page: 1    Date Filed: 07/20/2010




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

                                                  FILED
                                                                            July 20, 2010

                                     No. 10-20130                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



J. PATRICK LINDSEY,

                                                   Plaintiff–Appellant,
v.

DYNCORP INTERNATIONAL, L.L.C.,

                                                   Defendant–Appellee.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-700


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        J. Patrick Lindsey appeals the district court’s grant of summary judgment
on his breach of contract claims. We affirm.
                                              I
        Lindsey entered into an employment contract with DynCorp International
LLC to work in Iraq as a longbow crew trainer. The contract was for a term of
eight months, but it allowed either party to terminate the agreement without


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20130        Document: 00511179288          Page: 2    Date Filed: 07/20/2010

                                        No. 10-20130

cause.     It provided that, if DynCorp terminated the contract prematurely
without cause, Lindsey was entitled to a pro-rated completion bonus, payment
of accrued annual leave, and return transportation. If Lindsey terminated the
contract early, he was responsible for his own transportation costs and forfeited
his completion bonus. The parties both stipulated that this was an at-will
employment agreement.
      The contract stated that DynCorp would pay Lindsey $4,063.66 every two
weeks, resulting in an annualized salary of $105,655.16. After Lindsey had
begun work in Iraq, DynCorp discovered that it had made a mistake and
changed Lindsey’s salary terms to an hourly wage of $24.90 an hour, resulting
in about $51,792 annually. DynCorp allowed Lindsey to keep the previous
wages he had received under the higher salary, but then reduced his salary for
the subsequent paychecks. Lindsey continued working after DynCorp reduced
his salary and completed the eight-month contract period.
      Lindsey sued in Texas state court, asserting a claim for fraud and
misrepresentation. The case was removed to federal court based on diversity
jurisdiction. Lindsey subsequently amended his complaint to assert only a
breach of contract claim. The district court granted summary judgment on this
claim, and Lindsey now appeals.
                                               II
      We review the grant of a motion for summary judgment de novo, applying
the same standard as the district court.1 We view the evidence in the light most
favorable to the non-moving party and avoid credibility determinations and
weighing of the evidence.2            Summary judgment is appropriate when the
competent summary judgment evidence demonstrates that there are no genuine


      1
          Threadgill v. Prudential Sec. Grp., Inc., 145 F.3d 286, 292 (5th Cir. 1998).
      2
          Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002).

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   Case: 10-20130         Document: 00511179288         Page: 3       Date Filed: 07/20/2010

                                         No. 10-20130

issues of material fact and the moving party is entitled to judgment as a matter
of law.3 An issue of material fact is genuine if a reasonable jury could return a
verdict for the nonmovant.4
                                               III
       The district court determined that the change in Lindsey’s pay was an
enforceable contract modification under Texas law. Lindsey argues that issues
of material fact preclude summary judgment on this issue.
       The parties do not dispute that Texas law applies to the contract claim.
Under Texas law, either party may impose modifications to the employment
terms of an at-will employment contract as a condition of continued
employment.5 “The party asserting the modification still must prove that the
other party agreed to modify the employment terms.”6 Specifically, the party
must prove: (1) notice of the change, and (2) acceptance of the change. 7
Generally “an employee must accept the new terms or quit,” and if he “continues
working with knowledge of the changes, he has accepted the changes as a matter
of law.” 8
       The issue here is whether Lindsey received notice of the change, since if
he received notice, his continued employment with DynCorp constitutes
acceptance as a matter of law.9 To prove notice, the employer “must prove that
he unequivocally notified the employee of definite changes in employment


       3
           Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
       4
           Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
       5
           Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986).
       6
           Id.
       7
           Id.
       8
           Id.
       9
           See id.

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                                         No. 10-20130

terms.”10        “[T]he employee must know the nature of the changes and the
certainty of their imposition.” 11
      The record reflects that Lindsey was unequivocally notified of the
modification to his employment agreement. DynCorp provided an affidavit by
Dean Crawford, the Vice President of Human Resources for DynCorp, stating
that “representatives from DI’s Staffing organization notified Lindsey of the
mistake shortly after presenting him the original [contract] in January 2007 and
sent him an amended first page to the Agreement stating the modified salary.”
Lindsey does not dispute that he received this page and concedes that DynCorp
advised him of a contract adjustment. In addition, Lindsey does not dispute that
his subsequent pay stubs reflected the change to the terms of his salary.
Accordingly, it is clear from the record that DynCorp properly notified Lindsey
of the pay modification.
      Lindsey’s continued employment with DynCorp after the modification
constituted acceptance of that modification.12              Thus, the modification is
enforceable.         Because it is undisputed that DynCorp paid Lindsey the full
amount it owed him under the modified contract, Lindsey’s breach of contract
claim fails as a matter of law.
                                     *        *         *
      For the foregoing reasons, we AFFIRM.




      10
           Id.
      11
           Id.
      12
           See id.

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