## IN THE SUPREME COURT O F TEX AS

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### C O R P O R A T IO N 

### , W H M C U S T O M 

### S E R V IC E S 

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4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E T H I R T E E N T H D I S T R I C T O F T E X A S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 Argued F ebruary 7, 2017

J U S T I C E B R O W N delivere d the opinion of the Court. J U S T I C E L E H R M A N N did not participate in the de cision. This is a complex employ ment-discrimination ca s e implicating the Texas Commi ssion on Human Rights Act and multipl e common-law tort doctrines. I t arises from a repor t that Gilberto Rincones, a r e f

in ery technicia

n, failed an employ

ment-re lated drug test. Rincones sued his employ er, WHM Custom Service s, I nc.; the owner of the re fi n er y , Ex x on Mobil; and the drug -testing administrator, DI SA, I

nc. The trial court g rante d summary judgme nt f or Ex x on, WHM, a

nd DI SA

on all bu t one claim, which it dismiss ed for lack of jurisdiction. I n a wide-r ang ing opinion on rehe aring , the court of appea ls r ever sed the trial court’s take- nothing judgme nt a nd reinstated nine of Rincones’s claims. W e re v erse in part, vaca te in part, and rende r judgme nt reinstating the trialcourt’s final take- nothing judgme nt ag ainst Rincones, holding, among other things, that Texas law

rec og nizes no claim for compe lled self-de famation. I. Background Gilberto Rincones was employ ed as a cata ly st technicia n by WHM Custom Service s. WHM assig ned him to work at Ex x on’s Ba y town ref inery

. E x x o n reta ins WHM as an independe nt contra ctor to build and r epair the re finery ’s cataly st sy stems. Be cause of the potentially hazardous nature of the work at the Ba y town ref inery , Ex x on require s its contra ctors, including WHM, to have written d ru g policies. Those policies must meet the require ments of the Houston Are a Substance Abu s e Prog ram, a projec t of the Houston Business Roundtable. When WHM hired Rincones, he signe d forms acknow ledg ing its substance- abuse policy and proce dures and consenting to drug and alcohol testing

. The Substance Abuse Prog ram re quires ra ndom drug testing by

third-par ty administrators, who are responsible for providing co l l ec tion, testing, and repor ting service s conducte d by g overnme nt-ce rtified laboratories and licensed medical profe ssionals. The prog ram maintains a list of third-par

ty administrators that satisfy its require ments. Unde r t h e S u bstance Abuse Prog ram, third-par ty administrators classify contra ctors’ empl o y ees as either “ac tive” or “inac tive.” Any employ ee who violates the prog ram’s require ments, such as t esting positive for a forbidden substance, is classified as inactive. Ex x on mandates that no person with an inactive status may work at the B ay town Refiner

y until completion of a reha bilitation process outlined by the prog ram. WHM desig nated DI SA, whi ch i s o n t he prog ram’s approve d list, as its third-par ty administrator. I n ear ly April 2008, DI SA randomly selec ted Rincones to take a drugtest, to which

2he submitt ed on April 10. On April 14, DI SA notified Rincones that his sample tested positive f or marijuana use. I n acc orda n ce with the Substance Abuse Prog ram, DI SA desig nated Rincones as inactive, r equiringhim to complete cer tain reha bilitation requirements bef ore r eturningto work. Rin co n es co n s istently maintains he did not use illega l drug s. He argued the sample tested

was not actua lly his; he compl ai n ed t o W HM of supposedly “questionable testing proce dures he witnessed when he g ave the sample”; and he reque sted that he be allowed to re t es t wi t h a n ew sample. A WHM human-re source s manag er told Rincones he had to work wit h DI SA rathe r than WHM to reg ain active status. DI SA offe red to rete st the part of the sample reta ined by the lab. But Rincones neve r fulfill ed the require ments of t he S ubstance Abuse P rog ram for returning to active DI SA status. I nstead, on April 15, Rincones s ubmitted a urine sampl e t o a p ri v ate doctor. This test was neg ative, though the scre ening threshold used in this non-ra ndom test was substantially highe r than the level require d by the Substance Abuse Prog ram. Rincones informed WHM of the neg ative test results and offere d them as proof that the DI SA drug -test results wer e incorrec t. WHM and DI SA did not chang e their position based on these privately obtained re s ults, as the testing was not sanctioned by

the prog ram. Rincones never at t empt ed to complete a reha bilitation prog ram. And though WHM never formally terminated Rincones, his inactive status prec luded WHM from assig ni n g him any work. Rincones filed for unemploy ment-compe n s at i o n benef its with the Texas Workforce Commi ssion i n Au gu s t 2008. A month later the commission deter mined that Rincones had been discharg ed

3beca

use of the results of the drug test but was elig ible for unemploy ment benef

its. He later obtained employ ment with another c ompany . Rincones filed a discrimination char g e w it h th e T e xa s Workforce Commi ssion – Civil Rights Division in October 20 0 8 , co m p laining “that other non[-] Hispanic employ ees wer e treated differ ently ” under the Substance Abuse Prog ram. I n April 2009, Rincones filed this lawsuit ag ainst WHM and Dallas M en t o r, an alleg ed “misidentified” party in place of DI SA. Rincones then amende d his orig inal petition in J uly 2009 to add Ex x on as a defe ndant and amende d it a fourth time in Aug ust 2010 to add DI SA. He asserted various claims ag ainst eac h of t he three defendants, the rele vant details of whic h we discuss be low. Ex x on and WHM moved to dismiss Rincones’s pattern- or-pr actice discrimination claim for lack of subject -m at ter jurisdiction. They argued that Rincones did not exhaust his administrative

reme dies by

failing to include the fa cts supporting the claim in his Texas Workforce Commi ssion administrative char g e. The trial court dis m i s s ed t he claim. Ex x on and WHM also moved for traditional and no-evide nce summary judgme nt on the rema inder of Rincones’s claims ag ainst them. DI SA moved for traditional summary judgme nt. The trial court g rante d summary judgme nt ag ainst Rincones on the rema ining claims ag ainst Ex x on, WHM, and DI SA and enter ed a take- nothing judgme nt. Rincones nonsuited all of his other cla ims, making judg ment ag ainst him final. Rincones timely appea led, raising six teen issues in the court of appea ls. 457 S.W .3d 221, 255 (Tex. App.—Corpus Christi 2015). Wit hdraw ing its first opinion and issuing a new one on rehe aring , t h e co u rt of appea ls overr uled some of Rincones’s issues, but also reve rsed the trial court’s judgme nt on multipl e g rounds and rema nded. Id. at 231, 254. Wit h respe ct to E x x o n , the

4court of appea ls reinstated three of Rinco n es ’s claims: neg lige nce, tortious interfe renc e with an

employ ment contra ct, and pattern-or -pra ctice disc rimination. Id. at 249, 251–53. I t reinstated f our claims ag ainst WHM: individual discrimination, reta liation, pattern- or-pr actice discrimination, and compelled self-de famation. Id. at 223–49. I t reinstated two cl ai m s ag ainst DI SA: tortious interfe renc e with a c ontrac t and neg lige nce. Id. at 253–56. We addre ss eac h of these nine claims ag ainst the three petitioners in turn. II. Claim s against WHM WHM, Rincones’s employ er, argues the court of appea ls err ed by reve rsing the trial court’s take- nothing judgme nt as to Ri n co n es ’s claims for compelled self-de famation, discrimination, reta liation, and pattern- or-pr actice discrimination. R i n co n es argues that fac t issues prec luded summary judgme nt and the court of appea ls corr ectly revive d his claims. We revie w the trial court’s summary judgme nt de novo. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). When revie wing a summary judgme nt, we take as true all evidenc e favor able to the nonmovant and we indulge every

rea sonable infe renc e and resolve any doubts in the nonm ovant’s favor. Id. Even under this exacting standard, we never theless conclude that the trial court corr ectly g rante d summary judgme nt for WHM and the c ourt of appe als err ed by reve rsing

. A. Defam ation The court of appea ls aff

irmed summary judgme nt for the petitioners on Rincones’s defa mation claim. Yet it conclude d “that Texas law rec og nizes a cause of action for defa mation based on compelled self-publication in cer tain limit ed circ umstances” and revive d Rincones’s cause of action for compelled self-de famation ag ainst WHM. 457 S.W .3d at 2 4 4

– 48. We disag ree and reve rse,

5holding that t h e publication element of a defa mation claim cannot be satisfied by a theory of “comp el l ed ” self-disclosure and there is no independe nt cause of action for compelled selfdefa mation. The elements of a defa

mation claim “include (1) the publication of a false statement of fac t to a third part y , (2 ) that was defa matory conce rning the plaintiff, (3) with the requisite deg ree of fault, and (4) damag es, in some case s.” In re L i p s ky , 4 6 0 S.W .3d 579, 593 (Tex. 2015) (citing W FAA–TV, Inc. v. McLem ore , 978 S.W .2d 568, 571 (Tex. 1998)). “Publicati o n ” occur s if the defa matory statements are communicated orally , in writing , or in print to some third person who is “ca pable of understanding their defa matory import and in such a way that t h e t h i rd p er s o n did so understand.” Austin v. Inet Techs., Inc ., 118 S.W .3d 491, 496 (Tex. App.—Dallas 2003, no pet.). As

a g ener al rule a defe ndan t wh o communicates a defa matory statement direc tly to the defa med person, who then rela

y s it to a third person, has not published t h e m atter to the third person. See R E S T A T E M E N T (S E C O N D ) O F T O R T S § 577 cmt. m (1977). Neve rtheless, some Texas courts of appeal s an d s ister-state courts have rec og nized an exception to that g ener al rule, often in de famation suits broug ht by former employ ees ag ainst their former employ ers. The theory is that a former employ ee’ s publication to a third party can satisfy the publication element beca

use the former employ ee is eff ectively compelled to publish the defa matory statement t o prosp ec t i v e em p loy ers when asked why he left his former employ ment. See Lewis v. Equitable Life Assurance Soc’y o f U. S

. , 389 N.W.2d 876 (Minn. 1986); cf. Cweklinsky v. Mobil Chem. Co. , 837 A.2d 759 (Conn. 2004). Acc ording to these courts, compelled self-publication holds the orig inator of a “def

amatory statement liable for damag es cause d by the statement wh er e the

6orig inator knows, or should know, of circ umstances wher eby the defa med person has no rea sonable means of a

voiding publication of the statement or avoiding the re sulting dama g es; in other wor ds, in case s wher e the defa

med person was compelled to publish the statement.” Lewis , 389 N.W.2d at 888. A handful of states have rec og nized the the ory in va rious forms, and a narr ow version has

1 g ained acc eptanc e in the Restatement (Second) of Torts. The Restatement p r o v ide s that a publication may occur despite t he gene ral ru l e “[ i ] f t he defamed person’s transmissi on of t he communication to the third person wa s made . . . without an a war eness of the defamatory nature of t he matter and if the circ umstances indicated that communication to a third party wo u ld be likely

. . . .” R E S T A T E M E N T (S E C O N D ) O F T O R T S § 577 cmt. m (1977). 2 Severa l of our courts of appea ls also have enter tained the notion of compelled selfdefa mation. The court of appea ls in this case relied on its own prec edent from 1980: First State Bank of Corpus Christ i v. Ake , 606 S.W .2d 696, 701 (Tex. Civ. App.—Corpus Christi 1980, writ ref ’d n.r.e.) (“O ne who communicates defa matory matter direc tly to the defa med pers o n , wh o h imself communicates it to a third party , has not published the matter to the third person if there are no other

S e e , e . g . , L e w i s , 3 8 9 N

. W

. 2 d a t 8 8 6

– 8 8 ; Ne i g h b o r s v . K i r k s v i l l e C o l l

. o

f O s t e o p a t h i c M e d

. , 6 9 4 S

. W

. 2 d 8 2 2 , 1 8 2 4 ( M o . C t

. A p p . 1 9 8 5 ) ; M c K i n n e y v . C t y . o f S a n t a C l a r a , 1 1 0 C a l

. A p p . 3 d 7 8 7 , 7 9 6 ( 1 9 8 0 ) ; G r i s t v . U p j o h n C o . , 1 6 8 N

. W

. 2 d 3 8 9 , 4 0 5

– 0 6 ( M i c h

. C t

. A p p . 1 9 6 9 )

. T h e C o l o r a d o S u p r e m e C o u r t r e c o g n i z e d a c l a i m f o r c o m p e l l e d s e l f

d e f a m a t i o n , b u t t h e s t a t e ’ s l e g i s l a t u r e h a s s i n c e r e s t r i c t e d s u c h a c l a i m . C h u r c h e y v . A d o l p h C o o r s C o . , 7 5 9 P

. 2 d 1 3 3 6 , 1 3 4 4 ( C o l o . 1 9 8 8 ) ; C O L O . R E V . S T A T . A N N . § 1 3

- 2 5

- 1 2 5

. 5 ( W e s t l a w t h r o u g h l a w s e f f e c t i v e A p r i l 1 3 , 2 0 1 7 ) ( “ S e l f

p u b l i c a t i o n , e i t h e r o r a l l y o r i n w r i t i n g , o f t h e d e f a m a t o r y s t a t e m e n t t o a t h i r d p e r s o n b y t h e p e r s o n m a k i n g s u c h a l l e g a t i o n s h a l l n o t g i v e r i s e t o a c l a i m f o r l i b e l o r s l a n d e r a g a i n s t t h e p e r s o n w h o o r i g i n a l l y c o m m u n i c a t e d t h e d e f a m a t o r y s t a t e m e n t

. ” )

. T h e M i n n e s o t a l e g i s l a t u r e s i m i l a r l y l i m i t e d t h e L e w i s c o u r t ’ s h o l d i n g . S e e M IN N . S T A T . A N N . § 1 8 1

. 9 3 3 ( 2 ) ( W e s t l a w t h r o u g h l a w s o f A p r i l 2 8 , 2 0 1 7 )

.

A t y p i c a l c a s e w o u l d i n v o l v e a p l a i n t i f f w h o r e c e i v e d a d e f

a m a t o r y m e s s a g e a n d r e q u i r e d a s s i s t a n c e r e a d i n g 2 o r u n d e r s t a n d i n g i t

— s e l f

- p u b l i c a t i o n w o u l d o c c u r w h e n t h e p l a i n t i f f a s k e d a n o t h e r p e r s o n f o r a s s i s t a n c e u n d e r s t a n d i n g t h e m e s s a g e . S e e M a r k i t a D

. C o o p e r , B e t w e e n a R o c k a n d a H a r d C a s e : Ti m e f o r a Ne w D o c t r i n e o

f C o m p e l l e d S e l

f

P u b l i c a t i o n , 7 2 N O T R E D A M E L

. R E V . 3 7 3 , 3 8 5 ( 1 9 9 7 ) ( d i s c u s s i n g L a n e v . S c h i l l i n g , 2 7 9 P

. 2 6 7 ( O r . 1 9 2 9 ) )

. 7circ umstances. I f the circ umstances indicated that communication to a third party is likely , howeve r,

a publication may proper ly be held to have occur red.” ). The Dallas and San An t onio Courts of Appea ls have relied on Ake to rea ch simil ar conclusio n s. Chasewood Constr. Co. v. Rico , 696 S.W .2d 439, 445 (Tex. App.—San Antonio 1985, writ ref ’d n.r.e.) (re ly ing on Ake to conclude that

a supervisor, as a rea sonably prudent person, should have expected his defa mation of the employ ee would be communicated to others by the employ ee) ; DeW ald v. Home Depot , No. 05-98-00013- CV, 2000 WL 1207124, at *9 (Tex. App.—Dallas Aug

. 25, 2000, no pet.) (“[E]mpl oy ers should expect terminated employ ees to share with prospec tive employ ers the alleg ed rea sons for their termination. I f an employ er gi v es u n t rue defa matory rea sons for terminating an employ ee, it should rec og nize that such conduct cre ates an unrea sonable risk that the defa matory matter will be communicated to prospec tive employ ers.” ); see also Purcell v. Seguin State Bank & Tr. Co. , 999 F.2d 950, 959 (5th Cir. 199 3 ) (f

i n d i n g, based on courts of appea ls’ decisions, that “Te x as courts

. . . rec og nize the

narr ow exception of self- compelled de famation”). More rec ently , howeve r, both the Dallas and S an Antonio courts hesitated to extend their

rec og nition of the tort, in part beca use this Court has never adopted it. See Austin , 118 S.W .3d at 499 (noting this Court has not rec og nized the claim and declining to decide the issue beca use an element of t he claim was neg ated) ; Gonzales v. Lev i Strauss & Co. , 70 S.W .3d 278, 283 (Tex. App.—San Antonio 2002, no pet.) (re citing the elements of self-c ompelled defa mation but finding no evidenc e to support them ); see also Acc uBanc Mortg. Corp. v. Drummonds , 938 S.W .2d 135, 148 (Tex. App.—For

t Worth 1996, writ denied) (same).

8Today we r esolve the issue. We expressly decline to rec og nize a theory of compe lled selfdefa mation in Texas. I n reje cting it, we join an emer g ing majority of state co u rt s t h at h ave considere d the issue, including those in Connecticut, Massac husetts, Hawa ii, Tenne ssee, I owa, Pennsy lvania, and N ew Yor k. 3 The court of appea ls he re found support for its conclusions in our Neely v. W ilson opinion. 418 S.W .3d 52 (Tex. 2013). That relianc e was m i s p l ac ed

. Neely involved a third party ’s republication of a defa

matory statement. Id. at 61. Dr. Nee ly , a neurosur g eon, did not repe at defa matory statements about himself to others. He alleg ed defa mation by a repor

ter and television station that repe ated a third party ’s alleg ations. Id. We rea ffirme d “a well-settled leg al principle that

one is liable for republishing the defa matory statement of another .” Id. Fro m t h ere, the court of appea ls rea soned, “it is a small step to i m pose liability on one who communicates a defa matory statement knowing or rea sonably fore seeing that the plaintiff would be compelled t o repe at the defa matory statement to others.” 457 S.W .3d at 248. We disag ree and re fuse to take that step. Our holding today is in no tension with Neely

. I ndeed, our holding today is c onsistent with

our prec edent. More than half a centur y ag o, we rea ffirme d the rule “that if the publication of which

T h e d e c i s i o n s t h a t w e b e l i e v e s u p p o r t o u r p o s i t i o n w e r e m a d e o n a w i d e v a r i e t y o f r e a s o n i n g a n d h a v e c o m e 3 f r o m a m i x t u r e o f

c o u r t s o f

l a s t r e s o r t a n d i n t e r m e d i a t e a p p e l l a t e c o u r t s . S e e , e . g . , C w e k l i n s k y , 8 3 7 A

. 2 d a t 7 5 9 ; W

h i t e v . B l u e C r o s s & B l u e S h i e l d o f M a s s . , I n c . , 8 0 9 N

. E

. 2 d 1 0 3 4 ( M a s s . 2 0 0 4 ) ; G o n s a l v e s v . N i s s a n M o t o r C o r p . i n Ha w . , L t d

. , 5 8 P

. 3 d 1 1 9 6 ( H a w . 2 0 0 2 ) ; T h e i s e n v . C o v e n a n t M e d

. C t r . , I n c . , 6 3 6 N

. W

. 2 d 7 4 ( I o w a 2 0 0 1 ) ; S u l l i v a n v . B a p t i s t M e m ’ l H o s

p . , 9 9 5 S

. W

. 2 d 5 6 9 ( T e n n . 1 9 9 9 ) ; A t k i n s v . I n d u s . T e l e c o m m . A s s ’ n . , 6 6 0 A

. 2 d 8 8 5 , 8 9 4

– 9 5 ( D

. C

. A p p . 1 9 9 5 ) ( “ O n l y a m i n o r i t y o f j u r i s d i c t i o n s h a v e r e c o g n i z e d a d e f a m a t i o n c l a i m b a s e d o n c o m p e l l e d s e l f

- p u b l i c a t i o n , a n d t h o s e s o h o l d i n g d o n o t a g r e e o n t h e b a s i s o n w h i c h t o g r o u n d l i a b i l i t y . ” ) ; W i e d e r v . C h e m . B a n k , 2 0 2 A

. D

. 2 d 1 6 8 ( N

. Y

. A p p . D i v . 1 9 9 4 ) ( m e m . o p . ) ( c i t i n g W e i n t r a u b v . P h i l l i

p s , N i z e r , B e n

j a m i n , K r i m , & B a l l o n , 1 7 2 A

. D

. 2 d 2 5 4 ( N

. Y

. A p p . D i v . 1 9 9 1 ) ( m e m . o p . ) ) ; L a y n e v . B u i l d e r s P l u m b i n g S u p p l y C o . , 5 6 9 N

. E

. 2 d 1 1 0 4 ( I l l

. A p p . C t

. 1 9 9 1 ) ; Y e t t e r v . W

a r d T r u c k i n g C o r

p . , 5 8 5 A

. 2 d 1 0 2 2 ( P a . S u p e r . C t

. 1 9 9 1 ) ; G o r e v . H e a l t h

- T e x , I n c . , 5 6 7 S o . 2 d 1 3 0 7 , 1 3 0 8 ( A l a . 1 9 9 0 ) ; B r a n t l e y v . H e l l e r , 1 1 2 S

. E

. 2 d 6 8 5 ( G a . C t

. A p p . 1 9 6 0 ) ( l i m i t i n g a n e a r l i e r h o l d i n g t h a t a p p r o v e d o f c o m p e l l e d s e l f

d e f a m a t i o n t o i t s f

a c t s ) ; L u n z v . Ne u m a n , 2 9 0 P

. 2 d 6 9 7 ( W a s h

. 1 9 5 5 )

. 9the plaintiff complains was consente d to, authorized, invited or procur ed by the plaintiff, he cannot

rec over for i njuries s ustained by rea son of the publication.” Lyle v. W addle , 188 S.W .2d 770, 772 (Tex. 1945). Dec lining to re cog nize compelled self- defa mation is a natural extension of this rule. Fur ther, were we to rec og nize compelled self-de famation, we would risk discourag ing plai n t i ffs from mitigating damag es to their own reputa tions. See Cweklinsky , 837 A.2d at 767. Allowing the claim could enable any employ ee who disag ree s with his employ er’ s rea son for firing him to unilatera lly cre ate an actionable tort ag ainst the employ er. And “the availability of incre ased damag es from such a claim might encour ag e publication of a defa matory statement by a plaintiff who re asonably could have avoided such republication or could have tried to explain to a prospec tive employ er the true nature o f t h e situation and to contra dict the defamatory statement.” Layne v. B uilders Plumbing Supply Co. , 569 N.E.2d 1104, 1111 (I ll. App. Ct. 1991). Additionally , we fea

r that acc epting the compelled s el f- d efa mation doctrine would

unacc eptably impinge on the at-will employ ment doctrine. “F or well over a centur y , the g ener al rule in this State, as in most Americ an jurisdictions, has been that absent a spec i fi c agreement to the contra ry , employ

ment may be terminated by the employ er or the employ ee at will, for g ood cause , bad cause , or no cause at all.” Montgomery Cty. Hosp. Dist. v. Brown , 965 S.W .2d 501, 502 (Tex. 1998). W e have declined to rec og nize a cla im ag ainst employ ers for neglig ent i nvestig ation of atwill employ ees’ alleg ed misconduct beca use, “[b] y definition, the employ ment-at-w ill doctrine does not require an employ er to be rea sonable, or even car eful, in making its termination decisions.” See Tex. Farm Bureau Mut. Ins. Cos. v. Sears , 84 S.W .3d 604, 609 (Tex. 2002). By its nature , the claim would require employ ers to conduct investigations and make acc urate finding s befor e t ak i n g any

1 0action ag ainst an employ ee or risk being sued. We have alre ady declined to re co gn i z e t hat duty

.

Moreove r, as the Seventh Circuit has noted, combining the doctrines of self-de famation and defa mation per se “g ives employ ees who reg ret not having neg otiated an employ ment contra ct a tort surrog ate for it.” Rice v. Nova Biomedical Corp. , 38 F.3d 909, 912 (7th Cir. 1994), cert. denied , 514 U.S. 1111 (1995). For these rea sons, we are convince d compelled self-de famation is incompatible with Texas’s at-will employ ment sy stem. Recog nizi ng compelled self-de famation could also stifle workplac e communication by “chill[ing] honest evaluation and communication about employ ee perf ormanc e, as employ ers strive to protec t them s el ves from defa mation claims by adopting policies of providing onl y ‘name , rank and serial number’ ref

ere nces.” See Markita D. Cooper, Between a Rock and a Hard Case: Time for

a New Doctrine of Compelled Self-Publication , 72 N O T R E D A M E L

. R E V . 373, 378 (1997); see also W hite v. Blue Cross & Blue Shield of Mass. , Inc. , 809 N.E.2d 1034, 1038 (Mass

. 2 0 0 4 ). And we ag ree with our sister cour t in Massachusetts that “[t] he expenditure of time, r esourc es, and money require d to defe nd a claim of compelled self-de famation inevitably will induce self- censor ship by employ ers.” W

hite , 809 N.E.2d at 1038. Finally , the court of appea ls here seems to have understood compe l l ed self-de famation to be an indep endent cause of action. But it is probably better understood as an exception to the publication require ment of a standard defa mation claim. See Cweklinsky , 837 A.2d at 764, 769; see generally Cooper, supra at 11. Texans’ rig ht to sue for reputa t ional torts is not impinged by declining to adopt a doctrine that modifies a plaintiff’s burden on one ele m en t o f a defa mation claim. See T E X . C O N S T . art. I , §§ 8, 13.

1 1Be cause we expressly decline to rec og nize compelled self-de fama tion, we reve rse the court of appe als and re nder judg ment for WHM on this claim. B. Discrim ination Based on Race or Nat ional O rigin Rincones alleg es he was discharg ed based on his rac e (Hispanic) and national orig in (“Me x ican heritag e/desc ent”)

. The crux of this claim is that “other non-Hispanic employ ees . . . wer e allowed to rete st as a result of a false positive result and allowed to return to work,” but he was not. As an initial matter, WHM a rg ues that the court of appea ls imprope rly relied on c erta in latefiled summary -judg ment evidenc e. But the court of appea ls’ err or, if an y , h as b een waived. Even objected- to evidenc e rema ins valid summary -judg ment proof “unless an order sustaining the objection is r educe d to writing , signe d, and enter ed of rec ord.” Mitchell v. Baylor Univ. Med. Ctr. , 109 S.W .3d 838, 842 (Tex. App.—Austin 2003, no pet.). The rec ord conta ins no order sustaining the objection. The L eg islatur e en acte d the Texas Commi ssion on Human Rights Act “to addre ss the specific evil of discrimination and reta liation in the workplac e.” City of W aco v. Lopez , 259 S.W .3d 147, 153 (Tex. 2008). As rele vant here , an employ er commits an unlawful employ ment prac tice if, b ec au s e o f rac e or national orig in, the employ er discharg es an individual or discriminates in any other manner ag ainst an individual in connec tion wi t h co m p ensation or the terms, conditions, or privileg es of e mploy

ment. See T E X . L A B . C O D E § 21.051(1). “Te x as courts fo l l o w t h e settled approa ch of the U.S. Supreme Court in rec og nizi ng two alternative methods of proof in disc riminatory treatment c ases.” Mission Consol. Indep. Sch. Dist. v. Garc ia , 372 S.W .3d 629, 634 (Tex. 2012).

1 2The first method, rathe r straig htforwa rd, involve s proving discriminatory intent via direc t evidenc e of what the defe ndant did and said. Howeve r, t h e Hi g h Court rec og nized that motives are often more cover t tha n overt, making direc t e vidence of forbidden animus hard to come by

. So to make matters easie r for discrimination plaintiffs, the Court cre ated the burden- shifting m ec h anis m of McD onnell Douglas. Under this fra mework, the pl ai n t iff is entitled to a presumption of discrimination if she mee t s t h e “minimal” initial burden of establishing a prima fac ie ca se of discr imination. Id. (interna l citations omit ted). Under the McD onnell Douglas framework and our case law, the prec ise elements of this prima fac ie showing vary depending on the circ umstances. Id. For Rincones to pr evail here , he must first establish a prima fac ie case of rac e or national-orig in discrimination by showing : (1) he is a member of a protec ted class; (2) he was qualified for his position; (3) he suffere d an ad v er se employ ment action; and (4) WHM g ave pref ere ntial treatment to a simil arly situated employ ee outside the protec ted class. See McD onnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973) (pr oviding the seminal fra m ew o rk ); A utoZone, Inc. v. Rey es , 272 S.W .3d 588, 592 (Tex. 2008) (per curiam) (ado p t i n g the fra

mework)

. The U.S. Supreme Court has emphasized that the standard for establishing a prima fac ie case is “not onerous.” Y oung v. United Parcel Serv., Inc ., 135 S.Ct

. 1338, 1354 (2015). WHM argues that Rincones did not establish his prima fac ie case beca use he failed to produce evidenc e of simil arly situated persons who wer e treated pref ere ntially , that is, who wer e allowed to rete st and return to work. Wit hout establishing this prima fac ie case , Rincones’s clai m fa ils as a matter of la

w. “E m p loy ees are simil arly situated if their circ umstances are compar able in all mat er i al respe cts, including simil ar stan d ar d s , s u pervisors, and conduct.” Y sleta Indep. Sch. Dist. v.

1 3Monarrez , 177 S.W .3d 915, 917 (Tex. 2005) (per curiam). “The sit u at i o n s an d conduct of the

employ ees in question must be ‘nea rly identical.’” Rey es , 272 S.W .3d at 594 (citation omitted); see also Edwards v. Grand Casinos o f Mi s s . , Inc ., 145 F. App’x 946, 948 n.2 (5th Cir. 2005) (per curiam) (noting that as to the simil arly situated require ment, circ umstances surrounding the compar ed employ ees must be “near l y i d en tical”) ; Smith v. W al-Mart Stores (

No. 471) , 891 F.2d 1177, 1180 (5th Cir. 1990) (per curia m) (holding plaintiff’s burden was “to show that the misconduct for which she was discharged wa s n ea rl y identical to that eng ag ed in by a male employ ee whom [ her e mploy er] reta ined” ( internal quotation omitted)). “Employ ees with dif

fer ent responsibilities, supe rvisors, capa biliti es, work rule violations, or disciplinary rec ords are not considere d to be ‘nea rly identical.’” Rey es , 272 S.W .3d at 594; see also Ineic hen v. Ame ritech , 410 F.3d 958, 960–61 (7th Cir. 2005) (“This require s the pl aintiff to show not only that the employ ees repor ted to the same supervisor, eng ag ed in the same conduct, and had the same qualifications, but also show that there wer e no ‘diffe rentiating or mitigating circ umstances as would distinguish . . . the employ er’ s treatment of them.’” (citations omitted)). Employ ees who hold differ ent jobs are not simi larly situated and, “ ordinarily , it will not be the c ase that a plaintiff is simil arly situated to another employ ee when the plaintiff is subordinate to that employ ee.” Burks v. W is. Dep’t of Transp. , 464 F.3d 744, 751 ( 7th Cir. 2006). Fa cing WHM’s summary -judg ment motion, Rincones argued that u nresolved fac t issues

rema ined beca

use he produce d evidenc e identifying three non-Hispanic WHM employ ees who wer e

1 4treated pref er en t ially : Tony Davis, Mark Sweet, and Dar ren Cooper. These three men, Rincones

4 claimed, “we re allowed to continue working for WHM afte r testing positive for drug s.” We addre ss the circ umstances surr ounding e ach a lleg ed compa rable person in turn. First, Tony Davis, a white male, was a “super intendent” or “super visor” wher eas Rincones

was a cata ly st technicia

n. Rincones’s primary job responsibilities wer e clea ning larg e rea ctor tanks at the ref inery and operating a forklift to move larg e sacks containing cata ly st pellets. Rincones testified Davis was three ranks above him. Fur ther, WHM produce d evidenc e that Davis never failed

a drugtest for WHM and Rincones ha s no evidenc e to the contra ry . Davis is not simil arly situated to Rincones as a matter of law

. See Rey es , 272 S.W .3d at 594. Second, Mark Sweet, also a white male, was even highe r ranking t han Davis. Acc ording to Rincones, Sweet was “the operations manager . . . the big g uy , the big man.” L ike Davis, Sweet cannot be simil arly

situated to Rincones. See id. Third, Dar

ren Cooper, a black male, indeed held the same position as Rincones. And Cooper

was also put on inactive status following a DI SA drug test. Rincones contends that a WHM humanresour ces manag er assisted Cooper in reha bilitating afte r his drug test, but the manag er provided no assistance or counseling to Rincones other than telling Rincones he had to “wor k it out” with DI SA. Yet the rec ord shows that the s ame manag er told Cooper, li ke he told Rincones, t o call DI SA and

T h e r e i s d i s c u s s i o n o f

a f o u r t h a l l e g e d c o m p a r a t o r i n R i n c o n e s ’ s b r i e f i n g t o t h i s C o u r t a n d i n t h e r e c o r d

. B u t 4 R i n c o n e s w a i v e d r e l i a n c e o n t h a t p e r s o n b e c a u s e h i s r e s p o n s e t o W H M ’ s t r a d i t i o n a l a n d n o - e v i d e n c e s u m m a r y j u d g m e n t m o t i o n e x p l i c i t l y o f

f e r e d o n l y t h r e e c o m p a r a t o r s : D a v i s , S w e e t , a n d C o o p e r . T h e r e f o r e , R i n c o n e s f

a i l e d t o “ f

a i r l y a p p r i s e ” t h e t r i a l c o u r t o f t h e i s s u e o f t h e f o u r t h a l l e g e d c o m p a r a t o r a n d w e l i m i t o u r a n a l y s i s t o t h e t h r e e a l l e g e d c o m p a r a t o r s t h a t R i n c o n e s i d e n t i f i e d

. S e e C i t

y o f H o u s t o n v . C l e a r C r e e k B a s i n A u t h

. , 5 8 9 S

. W

. 2 d 6 7 1 , 6 7 8 ( T e x . 1 9 7 9 ) ( “ T h e w r i t t e n a n s w e r o r r e s p o n s e t o [ a s u m m a r y - j u d g m e n t ] m o t i o n m u s t f a i r l y a p p r i s e t h e m o v a n t a n d t h e c o u r t o f t h e i s s u e s t h e n o n - m o v a n t c o n t e n d s s h o u l d d e f e a t t h e m o t i o n . ” ) ; S t a t e B d

. o f I n s . v . W e s t l a n d F i l m I

n d u s . , 7 0 5 S

. W

. 2 d 6 9 5 , 6 9 6 ( T e x . 1 9 8 6 ) ( p e r c u r i a m ) ( “ [ I ] s s u e s n o t e x p r e s s l y p r e s e n t e d t o t h e t r i a l c o u r t m a y n o t b e c o n s i d e r e d o n a p p e a l a s g r o u n d s f

o r r e v e r s a l o f a s u m m a r y j u d g m e n t

. ” )

. 1 5g et his status clea red up. The differ ence is that Cooper chose to g o throug h reha bilitation. B eca

use he did so succe ssfully , Cooper was able to reg ain active DI SA status and return to work. Rincones’s bald alleg ations as i d e, no evidenc e shows he was denied the opportunity to reha bilitate under the terms of the Substance Abuse Prog ram. The “situations and conduct of employ ee s i s not near ly identical ‘whe n the differ ence betwee n the plaintiff’s conduct and that o f t h o s e alleg ed to be simil arly situated acc ounts for the differ ence in tr eatment rec eived from the employ er.’ ” Id. at 594 (quoting W

allace v. Methodist Hosp. Sys. , 271 F.3d 212, 221 (5th Cir. 2001)). That is prec isely the

case here . As a matter

of law, Rincone s and Cooper a re not similarly

situated. Rincones offe red no p ro o f, n o t even circ umstantial evidenc e, of even one simil arly situated person who was treated differ ently

. No evidenc e demonstrates that any employ ee was allowed to submit a differ ent sample to overturn his inactive status, or that any employ ee was allowed to work with an inactive status. Although Rincones’s burden was not onerous, he never theles s failed to establish his prima fac ie ca se. We reve rse a nd rende r judg ment for WHM. C. Ret aliation “An employ er . . . commits an unlawful employ ment prac tice if the employ er . . . reta liates or discriminates ag ainst a person who, under this chapte r: (1) opposes a discriminatory prac tice; (2) makes or f

iles a char g e; (3) files a complaint; or (4) testifies, assists, or participates in any manner in an investigation, proce eding , or hear ing.” T E X . L A B . C O D E § 21.055. Opposing a discriminatory prac tice includes making an int erna l g rieva nce . Lopez , 259 S.W .3d at 1 51. A pl aintiff mus t prove “(1) [he] eng ag ed in a

n activity protec ted by

the [Tex as Commi ssion on Human Rights Act][ ;] (2) an adve rse e mploy

ment action occ urre d[; ] and (3) there ex ists a causal link betwee n the protec ted

1 6activity and the adver se action.” San Antonio W ater Sys. v. Nicholas , 461 S

. W

. 3 d 131, 137 (Tex. 2015). Rincones offers only one piece of evidenc e o n t h i s point: his own deposit ion testimony in which he claimed he called a WHM human-re source s direc tor and “told him how come Tony Davis [a white employ ee] was still working and I couldn’t. And he didn’t explain to me why .” He claims to have made a simil ar statement to another WHM employ ee. On that basis, the court of appea ls held “Rincones communicated to WHM that he believed he was being treated di ff er en tly and less favor ably [from] other employ ees, who WHM kne w wer e non-Hispanic employ ees . . . . Although Rincones may not have used the mag ic words ‘ra ce or national orig in’ when making his complaint, that does not nec essar ily mean that the activity he eng ag ed in was not protec ted.” 457 S.W .3d at 241. This, the court said, raises a fac t issue about whether he eng ag ed i n a p rot ecte d activity by opposing a

discriminatory

prac tice. Fe dera l cou rt s d o n o t require “mag ic words,” but those same courts also say “prote cted opposition must at least aler t an employ er to the employ ee’ s rea sonable beli ef t h at unlawful discrimination i s at i s s u e. ” Brown v. United Parcel Serv., Inc. , 406 F. App’x 837, 840 (5th Cir. 2010) (per curiam). Ri n co n es ’s s t atement about Davis is not sufficie nt to have aler ted WHM to alleg ed discrimination. Fur ther, Rincones admitted in his deposition he did not complain about rac e

or other discrimination to anyone at WHM, or that he was not allowed to return to work beca use of his race or national orig in. Rincones did not eng ag e in an activity protec ted by the Texas Commi ssion on Human Rights Act beca use his only evidenc e on this claim—his statement about Tony Davis— d oes not amount

1 7to opposition to a discriminatory prac tice. Wit h no protec ted activity , there can be no reta liation. We

there fore rende r judg ment for WHM. D. P atte rn-or- P ract ice Disc rim ination The trial court dismiss ed Rincones’s pattern- or-pr actice discrimination claim ag ainst WHM for lack of subject-matter jurisdiction beca use it fell o u t s i d e t he scope of his underlying administrative char g e of discrimination. The court of appea ls reve rsed. I t held “Rincones’ claim for pattern[-]or[-] prac tice discrimination is fac tually related to his claim fo r discrimination based on

rac e and national orig in” and he ld the trial court ha d jurisdiction. 457 S.W .3d at 244. Be fore this Court, howeve r, Rincones expli citly abandone d this issue and stated that he will not pursue this c laim if the case is r emande d. Rincones’s counsel informed this Court, in a motion filed J uly 4, 2016, that: “Rincones addre ssed all dispositi ve motions g rante d by the trial court made the basis of the appea l e x cept the ‘patter n and prac tice’ claim which he is a bandoning and will not be seeking in the trial court in the event this case is rema nded.” Rincones does not discuss this issue in his brief on the mer its. “A case become s moot if a controve rsy ceas es t o ex i st betwee n the parties at any stag e of the leg al p ro cee dings, including the appea l.” In re Kellogg Brown & Root, Inc. , 166 S.W .3d 732, 737 (Tex. 2005). Be cause there is no longe r any controve rsy betwee n WHM a nd Rincones on this claim, it is moot. There fore , wi t h o u t ad d ressing the merits of the court of appea ls’ analy sis or WHM’s arguments, we vaca te the court of appea ls’ judgme nt as to this claim. See Houston Mun. Emps. Pension Sys. v. Ferrell , 248 S.W .3d 151, 157 (Tex. 2007); Marshall v. Hous. Auth. of City of San Antonio , 198 S.W .3d 782, 785 (Tex. 2006).

1 8III. Claims against Exxon

Ex x on argues that the court of appea ls err ed by reviving one claim the trial court dismiss ed for want of j urisdiction and two claims upon which the trial co u rt gra n t ed sum mary judgme nt for Ex x on. For

the re asons discussed be low, we a g ree and re nder judg ment for Exx on. As an initial matter, Rincones also alleg es err ors in the court of appea ls’ handling o f h is claims ag ainst Ex x on. In addition to the claims appea led here by Ex x on, Rincones had sued Ex x on for individual discrimination, reta liation, and defa mation. The trial court g rante d Ex x on’s noevidenc e and traditional summary -judg ment motions on these claims. The court of appea ls aff irmed the trial court’s dismiss al based on Ri n co n es ’s failure to challeng e all of the g rounds raised in Ex x on’s summary -judg ment motions. 457 S .W.3d at 249–50. Rincones now complains to us that t h e t ri al court “er red when it g rante d Ex x on’s no[-] evidenc e motion on Marc h 23, 2010” and “er red ag ain when it purportedly gra n ted Ex x on’s tradi t i o n al s ummary judgme nt on November 16, 2010[,] reg arding the same claims, without considering the evidenc e Rincones submitt ed in his response to the no[-] evid e n c e mo ti o n . ” Rincones is, howeve r, the responde nt in this Court and did not cross-pe tition. “A party who seeks to alter the court of a ppeals’ judg ment must file a petition for review.” T E X . R. A P P . P. 53.1. That is, an issue raised for the first time in a re spondent’s brief on the m erits i s waived in the absence of a petiti on for revie w. See McG inty v. Henne n , 372 S.W .3d 625, 626 n.1 (Tex. 2012) (per cu riam). Be cause they are not properly

befor e us, we do not consider Rincone s’s alleg ations of er ror.

1 9A. P atte rn-or- P ract ice Disc rim ination

E xxo n a r g u e s th e trial c o u

r t proper ly dismiss ed Rincones’s pattern- or-pr actice d is c r im in a ti o n claim beca

use it fell outside the scope of his underly ing administrative char g e of discrimination. The court of appea ls reve rsed the trial court and reinstated the claim, holding it was fac tually related to his race -and- national-orig in discrimination claim. 457 S.W .3d at 244, 249. Rincones’s counsel expressly abandone d this claim ag ainst Ex x on at oral argument and in

a motion filed with this Court. L ike his pattern- or-pr actice discrimination claim ag ainst WHM, this 5 issue is moot. We need not addre ss the merits of Ex x on’s argument. We vaca te the court of appea ls’ judgme nt as to this claim. See F errell , 248 S.W .3d at 157; Marshall , 198 S.W .3d at 785. B. Tortious In ter ference wi th an Employm ent Contrac t The trial court g rante d Ex x on’s traditional and no-evide nce motions for summary judgme nt

on Rincones’s tortious-interfe renc e claim. The cour t of appea ls reve rsed, holding a g enuine issue of materia l fac t exis ted as to w hether Ex x on interfe red with Rincone s’s employ ment contra ct with WHM. Id. at 221, 253. The only evidenc e on which the court of appea ls relied was a one-pa g e letter sent from Exx on to WHM i n J anuar y 2009. Id

. The letter rea ds in releva

nt part: I t has rec ently come to the attentio n o f [Ex x on’s] Ba y town Fa cility that [W HM] has failed to compl y wi th the require ments set forth in [t he Ex x on—WHM Ag ree ment] at Ex hibit H “Contrac tor Drug , Al co h o l and Contraband Requirements.” The WHM employ ee in que stion is Gil berto Rincones.

J U S T IC E W IL L E T T : “ C o u n s e l f o r E x x o n s a y s y o u ’ v e e x p r e s s l y d i s a v o w e d t h e d i s c r i m i n a t i o n c l a i m . ” 5 C O U N S E L F O R R E S P O N D E N T : “ I ’ m n o t m a k i n g a d i s c r i m i n a t i o n c l a i m a g a i n s t E x x o n , t h a t ’ s c o r r e c t

. . . . ” 2 0Ex hibit H require s that a contra ctor notify [Ex x on] when an individual working on

[Ex x on] proper

ty become s disqualif

ied.

. . . Please ensure that the appropr iate person within y our company completes E x hibit H and submits it to [Ex x on] immediately

. I n addition, p l ea s e en sure that all those involved in this proce ss understand the require ments so that this non-compliance is not repe ated. A claim for tortious interfe renc e with a contra ct consists of four elements: (1) the exis tence of a contra ct s u b

j ect to interfe renc e; (2) willful and intentional interfe renc e; (3) the willful and intentional interfe renc e cause d damag e; and (4) actua l damag e or loss occur red. ACS Inv’ rs, Inc. v. McLaughlin , 943 S.W .2d 426, 430 (Tex. 1997). A defe ndant may d ef ea t a tortious-interfe renc e claim on summary judgme nt by disproving at l ea st one element of the claim as a matter of law. Powell Indus., Inc. v . Allen , 985 S.W .2d 455, 456 (Tex. 1998) (per curiam). Ex x on argues that Rincones offe red no evidenc e of inte rf erence or causation. Rincones contends Ex x on sent the J anuary 2 0 0 9 l et t er to ensure he would no longe r work at the Ba y town ref inery . He f

urther c laims a fac t issue exi sts about when he w as terminate d. The letter focuse s exclusively on WHM ’s o b l iga tion to inform Ex x on any time a WHM employ ee become s inactive following drug or alcohol testing. The letter did not g ive any direc tion to WHM reg arding Rincones’s employ ment status. Nor did it say any thing that could have interfe red with the employ

ment relationship betwe en WHM a nd Rincones. Ex x on was mere ly responding to WHM’s failure to communicate as require d by their contra ct. No rea sonable juror could find that the letter interfe red with Rincones’s employ ment agr ee m ent with WHM. See Goodye ar Tire & Rubber Co. v. Maye

s , 236 S.W .3d 754, 755 (Tex. 2007) (per curiam) (in revie wing s u m m ary judgme nt, appellate courts “must consider whether rea sonable a

nd fair- minded jurors could diff er in their conclusions in light of all of the evidenc e prese nted”)

. We hold no g enuine issue of materia l

2 1fac t shows or establishes Ex x on willfully and intentionally interfe red with Rincones’s employ ment contra ct. (And beca

use no rea sonable juror could conclude that the letter interfe red with Rincones’s employ ment agree ment, we ne ed not addr ess when Rincone s was ac tually terminated.) Rincones also argues that Ex x on can be liable for tortious interf er en ce t hroug h its ag ency relationship with WHM an d DI SA. Ex x on argues that Rincones did not raise this argument in response to Ex x on’s summary -judg ment motion on the tortious-interfe renc e claim and, beca use the issue was not prese nted to the trial court, it may not be considere d on appea l to revive his claim here

. State Bd. of Ins. v. W

estland Film Indus. , 705 S.W .2d 695, 696 (Tex. 1986) (per curia m) (“[I ]ss ues not ex p re s s l y p re s ented to the t rial court may not be considered on appea l as grounds for reve rsal of a summary judgme nt.”). Rincones’s discussion of this argument in his response to summary judgme nt is brief and not specific ; he alleg ed that “Exx on and WHM empower ed DI SA

. . . as ag ents to implement its [si c] drug [-] testing policy .” Neve rtheless, the alleg ation was sufficie nt to prese rve the er ror f or the c ourt of appe als’ re view. Although Rincones’s ag ency argument was prese rved, it still fails. As we explain below, no ag ency rela

tionship exis ted. We reve rse the court of appea ls and rende r judgme nt for Ex x on on this claim. C. Negligence Rincones’s neg lige nce claim ag ainst Ex x on depends on the exis tence of an ag ency relationship betwee n Ex x on and DI SA. Ex x on claims no evidenc e shows either that Ex x on authorized DI SA to act on its behalf or th at Ex x on had any rig ht of control over DI SA. I ndeed, Ex x on maintains that uncontrove rt ed evidenc e establishes just the opposite. We ag ree that no

2 2evidenc e demonstrates Ex x on had a rig ht to contr ol DI SA. There fore , no evidenc e shows Ex x on

owed Rincones any duty

. The court of appea ls e rre d in reve rsing summary judgme nt on this point. Gen er al ly , a business owner does not owe a duty for the neg lige nce of an independe nt contra ctor. Gen. Elec. Co. v. Moritz , 257 S.W .3d 211, 214 (Tex. 2008). “B ut one who reta ins a rig ht to control the contra ctor’s work may be held liable for neg lige nce in exercising that righ t

. ” Id. Simi larly , wher e a principal–a g ent relationship exis ts, a principal may be liable for an ag ent’s or

even a subag ent’s neg lige nce u n d er responde at superior. Arvizu v. Estate of Puck ett , 364 S.W .3d 273, 276–77 (Tex. 2012). Authority to act on the principal’s beh alf and control are the two essential elements of ag ency . See Suzlon Energy Ltd. v. Trini ty Structural Towers, Inc. , 436 S.W .3 d 8 3 5 , 841 (Tex. App.—Dallas 2014, no pet.); Reliant Energy Servs. v. Cotton Valley Compr es s i o n , L .L.C. , 336 S.W .3d 764, 783 (Tex. App.—Houston [1st Dist.] 2011, no pet.). “[T] he key question is whether the principal h as t he right t o control t he age nt with respe ct t o the details of t hat conduct.” State Farm Mut. Auto Ins. Co. v. Traver , 980 S.W .2d 625, 627 (Tex. 1998). Ag ency is not presumed; a party alleg ing the ex i s t en ce of an ag ency relationship bear s the burden of proving it. IRA Res., Inc. v. Griego , 221 S.W .3d 592, 597 (Tex. 2007) (per curiam). The court of appea ls reve rsed summary judgme nt on an ag ency theory , under which Ex x on beca me DI SA’s “ultimate principal.” 457 S.W .3d at 251–52. I t ag ree d with Rincones that an ag ency relationship exis ted “betwe en Ex x on, WHM, and DI SA with r espec t to the policies, prac tices, and proce dures f

o r d ru g and alcohol testi ng .” Id. at 251. The court of appeals t hus imposed on Ex x on DI SA’s duty “to use re as o n able car e in perf orming the tests, repor

ting the results, and explaining

2 3t h e re t urn to work policies and proce dures.” Id. The court of appea ls further imputed to E x x o n

DI SA’s alleg ed bre ache s reg ardingits handling a nd repor ting of Rincones’s drugtest. See id. Simi larly , Rincones argues that it is clea r “the [S ubstance Abuse Prog ram] cre ated, ratified and/or approve d by Ex x on, dictates m i n i sterial acts which DI SA must follow pursuant to the [progr am] and aff

ords no discretion on how to perf orm those acts.” He alleg es a chain from Ex x on to DI SA: Ex x on’s contra ctual require ment that WHM follow the Substance Abuse Prog ram’s drug

testing, remova l-from-jobsite, reha bilitation, and return- to-work protocols and proce dures; the prog ram’s r equire ment that participating contra ctors use a n approve d third-par

ty administrator, of which DI SA is o n e of four; WHM’s contra ct with DI SA; and the prog ram protocols controlling DI SA’s drugtesting. We disag ree . Wit hout dispute, there is no contra ct betwee n Ex x on and DI SA. On the rec ord here , WHM’s contra ct with DI SA to provide drug testing to WHM employ ees pre- dates WHM’s contra ct wit h Ex x on to provide labor. Ultimately , the question bec omes: Did Ex x on’s contractual Substance Abuse Prog ram require ments g ener ate the requisite control over DI SA to creat e an ag ency relationship? I t did not. The S ubstance Abuse P rog ram, incorporate d into Ex x on’s contra ct with WHM, require d: Contractors that perf

orm work on Ex x onMobil fac iliti es shall have and enfor ce a written policy (Contrac tor’s Policy) on drug s, alcohol and other prohibited items that, at a minimum , meets the require ments outlined below. Ex x onMobil Ba y town Texas are a fac iliti es require Contractors to enroll and maintain an active status in the Houston Are a Substance Abus e P rog ram (HASAP) for all of their e mploy ees that may work on Exx onMobil Bay town proper

ty

. Rincones i s corr ect to note that the Subst ance Abuse P rog ram “contains detailed, specific , mandatory rules, policies and proce dures which must be followed in order for WHM employ ees to 2 4be elig ible to work at Ex x on’s Ba y town fac iliti es.” The prog ram detailed the ty pe of testing, protocols to use, proce dures for neg ative test results, which employ ees are selec ted, and what levels of various substances constitute a positive test. Rincones contends “[t] here are no deviations or chang es DI SA can make to the [progr am] nor can it ref u s e to implement any of the specific and exacting ta sks it is contra ctually obligated to perf

orm pursuant to the WHM-DI SA contrac t.” Yet Ex x on did not develop the Substance Abuse Prog ram. I t was develope d and promulg ated by the Houston Business Roundtable, in which Ex x on mere ly participates. Contrary to Rincones’s

asser tion that Ex x on specific ally authorized WHM to contra ct with D I SA, E x x on instead require d WHM to selec t from Substance Abuse Prog ram-c ertified providers. WHM could have chosen from among four providers, one of which was DI SA. I n fac t, Ex x on’s contra cts administrator at Ba y town testified that she did not know WHM was using DI SA as its third-par ty administrator until Rincones filed his discrimination char g e. Fur ther, a “princ ipal’s rig ht of control presuppose s t h at t h e principal reta ins the capa city throug hout the relationship to assess the ag ent’s perf ormanc e, provide instructions to the ag ent, and terminate the ag ency relationship by revoking the ag ent’s authority .” R E S T A T E M E N T (T H I R D ) O F A G E N C Y § 1.01 cmt. f (2006). The Houston Business Roundtable, which is not alleg ed to be Ex x on’s ag ent, develope d the Substance Abuse Prog ram. The progra m i n turn cer tifies third-par

ty administrators. U n d er t he contract here and the S ubstance Abuse P rog ram, Ex x on could not have unilatera lly

preve nted WHM from using D I SA as its third-party testing a dminist rator. The Substance Abuse Prog ram, while detailed, does not amount to evidenc e of control sufficie nt to establish an ag ency rela tionship. Al t h o u g h perf

ormanc e standards presc ribed by the

2 5Substance Abuse Prog ram wer e incorporated into the Ex x o n

– W HM co n trac t, DI SA is an

in d e p e n dent entity that controlled the day -to-day operations of its business. Specific impl e me nta ti o n , such as whom to test on which day , was not within Ex x on’s control. Fur ther, WHM had discretion to use a diff

ere nt provider a ltoge ther. Wit hout an ag ency relationship, Rincones cannot establish tw o k ey elements of his neg lige nce claim: exis tence of a duty and brea ch of that duty

. See Centeq Realty, Inc. v. Siegler , 899 S.W .2d 195, 197 (Tex. 1995) (stating that plaintiff “must est ab l i s h b o th the exis tence and the viol at i o n of a duty ”). Be cause there is no evidenc e of a rig ht to control, the trial court corr ectly g rante d summary judgme nt and the court of appea ls erre d in reve rsing it. W e re nder judgment for Ex x on on this iss ue. IV. Claim s against DISA On Aug ust 1 0 , 2 0 1 0 , Rincones added DI SA to this suit, asser ting neg lige nce and tortious interfe renc e with his employ ment contra ct with WHM. DI SA moved for su m m ar y judgme nt 6 arguing that the two-y ear statute of limit ations had run on Rincones’s claims ag ainst it. DI SA argued that the claims acc rued on or immediately around April 14, 2008, the date Rincones was place d on inactive status and there fore lost the ability to ear n wag es from WHM. See T E X . C I V . P R A C . & R E M . C O D E § 16.003. Rincones argues DI SA had an ong oing duty to counsel him reg arding return- t o work policies and proce dures. Every day DI SA fa i l ed to counsel him, Rincones contends, DI SA brea ched its duty anew . Under R i n co n es ’s rea ding, the date his cause s of action ag ainst DI SA

acc rued for limit ations purposes is September 11, 2008. On that date t h e Texas Workforce

R i n c o n e s a l s o a s s e r t e d o t h e r c l a i m s a g a i n s t D I S A , b u t o n l y t h e n e g l i g e n c e a n d t o r t i o u s - i n t e r f e r e n c e c l a i m s 6 a r e b e f o r e u s i n t h i s a p p e a l

. 2 6Commi ssion issued its c harg e that Rincones had be en eff ectively terminated and there fore lost his ability to reg ain active DI SA status. We addre ss the two appea led cause s of action in turn, but note that some of Rincones’s arg uments are not clea

rly delineate d betwee n the two claims. We consider his arguments on these points broadly , and the org anization of our analy sis below should not be rea d as strictly limit ing a

ny imprecise a

rg uments to one claim or the othe r. A. Tortious Interfere nce The court of appea ls ag ree d with Rincones and held his tortious-interfe renc e claim was not time-barr ed. I t relied on Sterner v. Marathon Oil Co. , 767 S.W .2d 686 (Tex. 1989), to conclude that in claims for tortious interfe renc e wit h contra ct “the injury occur s when the interfe renc e cause s actua l damag e or loss by impairing perf ormanc e of the co n trac t or causing its termination.” 457 S.W .3d at 253. Thus, t h e co u rt s aid, “Rincones’ s cause of action ag ainst DI SA acc rued on September 11, 2008[,] beca use that is when the alleg ed interfe renc e cause d actua l damag e or loss.” Id. We cannot ag ree with the court’s conclusion that Rincones’s cause of action did not acc rue until afte r a third party decla red Rincones’s employ

ment terminated. The statute of limit ations runs from the time the cause of action acc rue s . T E X . C I V . P R A C . & R E M . C O D E § 16.003(a)

. We have consistent l y s t at ed that “a cause of action g ener ally acc rues at the time when fac ts come into exis tence which au t horize a claimant to seek a judicial reme dy ” and the “fa ct that damag e may continue to occur for an extended period after denial does not preve nt limit ations from st ar t i n g to run.” Murray v . San Jacinto Age ncy, I nc. , 800 S.W .2d 826, 828 (Tex. 1990).

2 7Apply ing our well-settled prec edent to this cause , we hold that a claim for tortious interfe renc e

with a contra ct acc rues at the time a co n t ra cti ng party knows the nature of the injury and the damag es, reg ardle ss of whether the contra ct is terminated at that time. See id

. I n holding otherwise, the court of appea ls’ relianc e on Sterner was misplaced. I n that case we decide d whether a cause of action existed for tortious interfe renc e with a terminable- at-will employ ment contra ct, butdid not discuss how the statute of limit ations aff ects such a claim. See Sterner , 767 S.W .2d at 688. We held the contra ct, un t i l terminated, “is valid and subsisti ng , and third parties are not fre e to tortiously interfe re with it.” Id. at 689. The court of appea ls relied on that holding to support its conclusion that

an “injury occur s when the interfe renc e cause s actua l da mag e or loss by impairing perf ormanc e of the contra ct or causing its termination.” 457 S.W .3d at 253. But the court err ed in construing Sterner

as an exception or modification to our when- fac ts-come- into-exi ste nce rule. See Murray , 800 S.W .2d at 828. Fa cts came into e x istence authorizing Rincones to seek a judicial reme dy

on April 14, 2008, the day he was informed of his failed drug test and inactive status. On that day , he knew of the neg ative eff

ects his inactive status would have on his job: he would no longe r rec eive income or assig nments from WHM unless he followed proce dures to reg ain active status. Rincones’s tortiousinterfe renc e claim is barr ed because he did not bring it until more than two y ear s afte r t he accr ual date, April 14, 2008. T E X . C I V . P R A C . & R E M . C O D E § 16.003(a)

. Even if he may have continued to suffe r damag es afte r that date, his claim is time-barr ed as a matter of law. The court of appea ls err ed by holding other

wise. We reve rse a

nd rende r judg ment for DI SA on this claim.

2 8B. Negligence

DI SA also argues that Rincones’s ne g lige nce c laim is time-barr ed. I t challeng es t he court of appea ls’ holdings about when Ri ncones’ s cause s of action acc rued and who bore what burdens in decidingthe statute-of

-limitations i ssue at summary judgme nt. Rincones’s cause of action for neg lige nce ag ainst DI SA was filed and serve d in Aug ust 2010. I n the trial court, DI SA move d for summary judgme nt based on the two- y ear statute of limit ations for neg lige nce. T E X . C I V . P R A C . & R E M . C O D E § 16.003(a)

. As with his tortious-interfe renc e claim, Rincones ar g ued in re sponse that his neg lige nce c laim did not accr ue until September 2008. DI SA ar gu es t hat the court of appea ls err ed by holding DI SA was not entitled to summary judgme nt beca

use it failed to neg ate Ri ncones’ s theories of continuing- tort doctrine and equitable estoppel, raised for the first time in his response to DI SA’s summary -judg ment motion. 457 S.W .3d at 254. The court held t he is sues were tried by con s ent and DI SA could not object to them for the first time on appea l. We disagr ee. 1. The Continu ing-Tort Doct rine First, we hold that the continuing- tort doctrine is inapplicable to Rincones’s claim as a matter of law. “A continuing tort involves wrong ful conduct inflicted over a period of time that is repe ated until desisted, and eac h day cre ates a separ ate cause of action.” First Gen. Realty Corp. v. Md. Cas. Co. , 981 S.W .2d 495, 501 (Tex. App.—Austin 1998, pet. denied)

. A claim for a continuing tort does not a ccr ue until the de fenda

nt’s wrong ful conduc t cea ses. Id. The doctrine of continuing tort, with its e x tension of acc rual date, is r ooted in a plaintiff’s inability to know that the ong oing conduct is

2 9causing him injury

. See Upjohn Co. v. Freem an , 885 S.W .2d 538, 542 (Tex. App.—Dallas 1994,

writ denied)

. We have “neither endorse d nor addre ssed” the continuing- tort doctrine. Coinmach Co r p. v. Aspenwood Apartment Corp. , 417 S.W .3d 909, 924 (Tex. 2013). But the Waco, Dallas, and Austin Courts of Appea ls have. Those courts applied the doctrine in case s of false imprisonment, neg lige nt infliction of emotional distress, and continued use of injury -produc ing medicine, ack n o wl ed ging continuing torts in eac h of these situations. See Adler v. Bev erly Hills Hosp. , 594 S.W .2d 153, 155 (Tex. App.—Dallas 1980, no writ) (fa lse imprisonment); Twyman v. Twyman , 790 S.W .2d 819, 821 (T ex . App.—Austin 1990), rev’d on other grounds , 855 S.W .2d 619 (Tex. 1993) (negli gen t infliction of emotional distress); Upjohn , 885 S.W .2d at 542 (continued use of injury -produc ing medicine)

. By contra st, the Waco court has deter mined t h at t re s p ass by placing cable lines on an

owner ’s proper

ty is a single act causing a continuing injury and, ther efor e, is not a continuing tort. See K r o h n v. Marcus Cable Assocs., L.P. , 201 S.W .3d 876, 881 (Tex. App.—Waco 2006, pet. denied)

. We rec og nize that the continuing- tort doctrine might provide neede d protec tions to plaintiffs in cer tain situations. But it does not apply here

. We follow our rule that “a cause of action g ener ally

ac cr u es at the time when fac ts come into exis tence which authorize a claimant to seek a ju d i ci al

reme dy ” and the “fa ct that damag e may continue to occur for an extended period afte r acc rual does not preve nt limit ations from starting to run.” Murray , 800 S.W .2d at 828. Assuming, without deciding , that actua l damag e or loss occur red here , those damag es resulted from a single act on April 14, 2008. The statute of

limit ations expi red two y ear s from that date

.

3 02. Equ itable Estopp el

Rincones argues that even if limit ations beg an to run in April 2008, DI SA should be equitably estopped from asser

ting a statute-of- limit ations defe nse. He claims that he sued the wrong defe ndant

o n Fe b ru ary 23, 2010—befor e limit ations had run—but was not awa re of the mistake becau s e DI S A’s ag ent indicated DI SA was awa re of the suit and would file an answe r, rende ring service

nece ssary . On this sub-i s s u e, t he court of appea ls found that “DI SA had the burden of neg ating

. . . equitable estoppel to establish its entitlement to judgme nt as a matter of law based on its limit ations defe nse” and conclude d t h at “[t] here is no dispute that DI SA failed to meet this burden.” 457 S.W .3d at 254. DI SA argues that the court of appea ls impermissibly shifted the burden of proof by stating that DI SA failed to prese nt any contra dicting evidenc e and then failed to examine whether Rincones met his burden to prese nt sufficie nt evidenc e on eac h element of his defe nse. We agree that the court of appea ls erre d in its assignment of bur dens of pr oof on the e quitable-e stoppel issue. “A defe ndant moving for summary judgme nt on the aff irmative defe nse of limit ations has the burden to conclusively establish that defe nse.” KPMG Peat Marwick v. Har r i s o n C t y. Hous. Fin. Corp. , 988 S.W .2d 746, 748 (Tex. 1999)

. Yet even when conclusively established, a pla intiff may invoke equitable estoppel as an aff irmative defe nse in avoidanc e o f a d ef en dant’s limit ations defe nse. See Oram v. Gen. Am . Oil Co. of T ex. , 513 S.W .2d 533, 534 (Tex. 1974) (per curiam). I n that situation, the non-moving plaintiff bear s the burden of establishing its defe nse. Once the movant establishes that the action is barr ed, the non-movant must prese nt summary -j u d gm en t evidence raising a fa ct issue on eac h element of his aff irmative defe nse in avoidanc e. See KPMG Peat

3 1Marwick, 988 S.W .2d at 748–50; Zale Corp. v. Rosenbaum , 520 S.W .2d 889, 891 (Tex. 1975) (per

curiam); Nichols v

. Smith , 507 S.W .2d 518, 521 (Tex. 1974)

. The movant has no burden to ne g ate the non-movant’s a ffirmative defe nse in avoidanc e. There fore , once DI SA conclusively established that Rincones’s neglig ence claim accrue d in Apri l 2 0 0 8 , the burden shifted to Rincones to produce summary -judg ment evidenc e sufficie nt to

ra ise a fac t issue on eac h element of his aff irmative defe nse in avoidanc e. The eleme n t s o f h i s estoppel defe nse are : (1) DI SA made a false repr esenta tion or conce aled materia l fac ts; (2) wi t h actua l or constructive knowledg e of t h o s e fa cts; (3) with the intent that Rincones act on DI SA’s repr esentation; (4) to Rincones, who had no knowledg e or the means of knowledg e of the fac ts; and (5) Rincones detrim entally relied on the repr esentations. See Johnson & Higgins of Tex., Inc. v. Kennec o Energy, I

nc. , 962 S.W .2d 507, 515–16 (Tex. 1998). To that end, Rincones argued DI SA ’s al l ege d ag ent, Roby nn Br own, induced him by her repr esentations to delay filing suit until afte r limit at i o n s had run. But Rincones did not car ry his burden in seve ral re g ards. The summary -judg ment rec ord is de void of evidenc e that DI SA ma de a misrepre sentation of materia l fac t. And, as discussed below, there is conclusive evidenc e Rincones had knowledg e about DI SA well befor e limit ations ran. Rincon es failed to produce summary judgme nt evidenc e to cre ate a fac t issue on eac h element of his defe nse in avoidanc e of limit ations. His burden was to d o so and the court of appea ls err ed by requiring DI SA to neg ate Rincones’s equitable- estoppel def

ense.

3 23. Misnom er

Finally , Rincones further attempts to avoid lim i t at ions by claiming misnomer, misident i fi ca tion, and due diligenc e in identifying and suing DI SA. This issue was raised and extensively

argued in the trial c ourt, but was not addr essed by the cour t of appe als. “A misnomer differ s from a misidentificatio n . ” I n re G r e a te r H

o u s to n O r th o

p a edic Specialists, Inc. , 295 S.W .3d 323, 325 (Tex. 2009) (per curiam) (citing Enserch Corp. v. Parker , 794 S.W .2d 2, 4 (Tex. 1990)). “Misidentification—the conseque nces of which are g ener ally harsh—a rises when two separ ate leg al entities exis t and a plaintiff mistakenly sues an entity with a name simil ar to that of the corr ect entity .” Id. (citing Chilkewitz v. Hy s o n , 22 S.W .3d 825, 828 (Tex. 1999)). I f a “plaintiff is mistaken as to which of two defe ndants is the corr ect one and there is actua lly exis ting

a corpor ation with the name of t h e err oneously named defe ndant (misidentification), then the plaintiff has sued the wrong party and l i m i t at i o n s is not tolled.” Enserch , 794 S.W .2d at 5. I n contra st, a “misnomer occur s when a party misnames itself or another party , but the corr ect parties

are involved.” In re Greater Houston Orthopaedic Specialists , 295 S.W .3d at 325. The courts of this state g ener ally

allow par ties to corre ct a misnomer if it is not misl eading

. Id. Despite Rincones’s contra ry contentions, the rec ord leads us to view this case as o n e o f misidentification. In his orig inal, first-ame nded, and second- amende d petitions, Rincones named “Da llas Mentor, Inc., f/k/a Turn Around I ncorpor ated” as a defe ndant. I n Fe bruar y 2010, Rincones filed a third-amende d petition, which named a new defe ndant: “DI CA, I nc., a/k/a M ar ce lo I nvestments, I nc.” Rinco n es contends that “DI CA” was mere ly a ty po for the DI SA, which was

corr ectly named in his live, fourth-a mended petition on Aug ust 10, 2010. Yet Rincones’ s attorney

3 3acknow ledg ed in an aff idavit to the trial court that “DI SA, I NC., a/k/a Marc elo Investments, I nc.,”

was “not the proper party who was the [t hird-par ty administrator] in this case. ” R i n co n es ’s live, fourth-a mended pe tition contains no refe renc e to “Ma rce lo I nvestments.” I ndeed, conclusive evidenc e shows Rincones knew about DI SA well befor e li m i t ati ons ran. For example, DI SA is ref

err ed to dozens of times in Rincones’s own deposition taken on November 10, 2009—near ly a y ear befor e Rincones filed the amende d petition that first corr ectly named DI SA

as a defe ndant. M any of t hose refer ence s to DI SA wer e made by Rincones’s attorney

. Rincones’ s failure to name DI SA as a party befor e the statute of limit ations expired cannot be excused. (Ac cording ly , we need not addre ss Rincones’s argument that he diligently attempted to serve DI SA.) The trial c ourt was c orre ct to g rant summary judgme nt as a matter

of law. Rincones’s neg lige nce claim, like his tortious-interfe renc e claim, is time-barr ed beca use limit ations beg an to run when he first suffe red an injury in April 2008. The continuing- tort doctrine and the other arguments Rincones advanc es do not chang e that conclusion. We reve rse the court of appea ls and rende r judg ment for DI SA. * * * The trial court corr ectly g rante d summary judgme nt for Ex x on, W HM , an d DI SA. For the

rea sons stated above, we reve rse the court of appea ls in part, vacate in part, and rende r judgme nt reinstating the trial cour

t’s final take -nothing judgme nt ag ainst Rincones.

3 4_____________________________ J eff rey V. B rown J ustice

OPI NI ON DEL I VERED: May 26, 2017

3 5