1

The court recounts the evidence in a light favorable to Lopez

as the summary judgment nonmovant and draws all reasonable

inferences in his favor. E.g., U.S. Bank Nat’l Ass’n v. Safeguard

Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater,

J.) (citing Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000)).

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOSE ARROYO LOPEZ, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-2001-D

VS. §

 §

HYATT CORPORATION, d/b/a §

HYATT REGENCY D.F.W., §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

Defendant moves for summary judgment dismissing the Texas

state-law claims of its former employee for defamation and wrongful

termination. Concluding that a reasonable jury could not find in

plaintiff’s favor on either claim, the court grants defendant’s

motion and dismisses this case with prejudice.

I

Plaintiff Jose Arroyo Lopez (“Lopez”) was employed for 24

years by defendant Hyatt Corporation (“Hyatt”) at its Hyatt Regency

DFW hotel.1

 He was terminated in July 2005 for gross misconduct.

During his tenure, he worked primarily in the hotel’s Purchasing

Department. Lopez’s job responsibilities included filling orders

requested by hotel departments, transporting goods from the

Purchasing Department to other parts of the hotel, occasionally

 

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ordering products from vendors, and checking products received from

vendors against the invoice that accompanied the product.

In June 2005 Hyatt discovered unexplained invoices involving

one of its vendors, prompting a review of all invoices from the

vendor dating back to November 2004. A comparison of the invoices

to hotel orders and inventories showed that the vendor had

submitted invoices for products that the hotel had never received.

Robert Spooner (“Spooner”), the hotel’s Director of Human

Resources, and other persons in the Accounting Department and hotel

operations investigated the invoice discrepancies. After Spooner

reviewed the initial audit of the invoices, he determined that

proper procedures had not been followed in the Purchasing

Department. The signatures of three purchasing employees were on

the false invoices: Lopez, Phil Rager (“Rager”), and Brandon

Ricketson (“Ricketson”). Spooner interviewed each of these three

employees individually. Certified Forensic Examiner Earl Bleser

(“Bleser”) and Director of Audit Services Chad Reppy (“Reppy”) were

also present. During Lopez’s interview, he was shown a group of

nine invoices bearing his signature. Lopez maintains that his

signature was forged on the invoices and that he and a hotel

accounting clerk both identified the signatures as forgeries.

Hyatt contends that although Lopez claimed during the interview

that his signature was forged on two of the invoices, he did not

deny his signature on the others. Hyatt also posits that Lopez

 

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admitted during the interview that sometimes he had signed for

products without verifying that they had been received, even though

it was his responsibility to perform this verification, and that

not doing so violated Hyatt policy.

Hyatt suspended Lopez for three days while the investigation

was completed and then terminated his employment for gross

misconduct. Lopez asserts that he was discharged for his failure

to follow procedure, but was also terminated based on an accusation

of theft of Hyatt property. Rager and Ricketson were also

discharged following the investigation. Lopez maintains that after

he was discharged, Spooner told him that Hyatt had been aware of

other employees who were responsible for the conduct for which he

had been terminated. He complains that, despite being aware that

his signature had been forged and that other employees were

responsible for the conduct, Hyatt terminated his employment and

Hyatt agents and employees accused him of theft of Hyatt property,

disseminating this information to third parties, including other

Hyatt employees.

Lopez filed this lawsuit in state court asserting claims for

wrongful termination and defamation in connection with the

termination of his employment. Hyatt removed the case based on

diversity of citizenship and now moves for summary judgment.

 

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II

The court first considers Lopez’s defamation claim. 

A

Under Texas law, “[t]o recover for defamation, a private

plaintiff must prove that the defendant (1) published a statement,

(2) that was defamatory to the plaintiff, (3) while acting

negligently as to the truth of the statement.” Montemayor v.

Ortiz, 208 S.W.3d 627, 651 (Tex. App. 2006, pet. filed) (citing

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)). A

statement is defamatory if it tends to injure a person’s reputation

and thereby expose the person to public hatred, contempt, ridicule,

or financial injury or to impeach any person’s honesty, integrity,

virtue, or reputation. See Tex. Civ. Prac. & Rem. Code § 73.001

(Vernon 2005). “Defamatory statements are ‘published’ if they are

communicated orally, in writing, or in print to some third person

capable of understanding their defamatory import and in such a way

that the third person did so understand.” Austin v. Inet Techs.,

Inc., 118 S.W.3d 491, 496 (Tex. App. 2003, no pet.) (citing Ramos

v. Henry C. Beck Co., 711 S.W.2d 331, 335 (Tex. App. 1986, no

writ)). 

Hyatt moves for summary judgment on the ground, among others,

that Lopez has failed to adduce evidence that Hyatt published the

defamatory statements on which he relies to establish his

defamation claim. Because Lopez will have the burden of proof on

 

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this claim at trial, Hyatt can meet its summary judgment obligation

by pointing the court to the absence of evidence to support an

essential element of the claim. See Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986). Once it does so, Lopez must go beyond his

pleadings and designate specific facts showing there is a genuine

issue for trial. See id. at 324; Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue

is genuine “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

mandatory if Lopez fails to meet this burden. Little, 37 F.3d at

1076. His failure to produce proof as to any essential element

renders all other facts immaterial. Edgar v. Gen. Elec. Co., 2002

WL 318331, at *4 (N.D. Tex. Feb. 27, 2002) (Fitzwater, J.) (citing

Celotex Corp., 477 U.S. at 323).

B

It appears from Lopez’s brief that his defamation claim is

based on two groups of statements. See P. Br. 11 (citing P. App.

8-11 and 33). The first occurred when Spooner accused Lopez of

stealing Coke products and molasses. See P. App. 8, 10. The

second occurred when Spooner presented Lopez with a written

statement (an “Employee Discussion Form”) that said he was being

discharged for “Gross Misconduct” because he had “allowed for a

food vendor to submit for payment false invoices. These invoices

 

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were for substantial amounts of money. No product was received for

these invoices.” P. App. 33.

Hyatt argues, in relevant part, that Lopez’s defamation claim

consists entirely of statements made directly to him during a

meeting convened as part of the investigation and during a second

meeting, in which he was informed of his termination. It points to

the absence of evidence that anyone from Hyatt made defamatory

statements about Lopez to anyone else. And it maintains that

although Lopez avers that he heard rumors about one unidentified

person’s stating that he had been fired because he stole, he cannot

identify the person or the source of the person’s information.

Hyatt contends that Lopez has no evidence that Hyatt made any

statement about him to a third party.

In response, Lopez points to the meeting in which Spooner

allegedly accused him of stealing Coca-Cola products and molasses

and to the termination document Spooner prepared. He asserts that

Spooner communicated to multiple Hyatt employees that Lopez had

been terminated for stealing, creating an atmosphere at Hyatt where

the rumor circulated widely.

C

The court concludes that Lopez has not adduced sufficient

evidence to raise a genuine issue of material fact that Hyatt

published the defamatory statements on which he relies. Lopez

asserts in his brief that Spooner communicated to other multiple

 

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Hyatt employees that he had been terminated for stealing. But

apart from the conclusory allegation itself, Lopez points to no

summary judgment evidence that Spooner communicated the allegedly

defamatory statements to multiple Hyatt employees. 

Lopez supports this assertion about Spooner by citing pages

19-23 and 32 of his appendix. See P. Br. 11 (citing P. App. 19-23

and 32). These consist of six pages from Lopez’s deposition.

Within these pages, however, Lopez does not specifically

demonstrate any basis for averring that Spooner communicated the

allegedly defamatory statements to any third party, much less to

multiple Hyatt employees. Lopez in fact conceded at one point that

he did not know whether Spooner or anyone else had told anyone that

Lopez had been stealing from Hyatt. P. App. 21. 

Lopez also testified that he had heard rumors. Specifically,

he stated that the day he was terminated, he passed by one

housekeeping person (or perhaps several) and overheard that he had

been discharged because he stole. Id. at 21-23, and 32. He could

not identify these persons, id. at 23, and he did not know how they

found out that he had been fired for stealing, id. at 32. The mere

fact that Lopez overheard one housekeeper (or more) state on the

date of his discharge that he had been fired for stealing is

insufficient evidence for a reasonable jury to find that Spooner

communicated defamatory statements to any Hyatt employees. No

reasonable jury could conclude, based on the evidence presented,

 

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2Lopez does not argue in his brief that Spooner published

defamatory statements to a third party by making the accusation

about stealing Cokes and molasses in the presence of Bleser and

Reppy during the investigation meeting, or providing a copy of the

termination document to Todd Jaffee, the Hyatt Assistant Human

Resources Director, during the termination meeting. To the extent

he intends to rely on this conduct to establish publication, he has

cited no cases that demonstrate that Texas would recognize as

third-party publications statements made or documents disseminated

only during a private meeting, in the presence only of persons who

were investigating possible employee misconduct or were involved in

terminating the employee and advising him of the reasons for his

termination. Accordingly, the court need only address whether

Lopez has adduced sufficient evidence to permit a reasonable jury

to find that Spooner communicated the allegedly defamatory

statements to other employees on occasions other than during the

two private meetings with Lopez and others involved in the

investigation or termination. 

- 8 -

that Spooner published defamatory statements about Lopez to any

third party.2 

Accordingly, the court grants Hyatt’s motion for summary

judgment dismissing Lopez’s defamation claim. 

III

Lopez also sues Hyatt for wrongful termination. 

A

Lopez maintains that Hyatt has attempted to avoid liability

for its defamation and wrongful termination by construing its

defamatory statements to indicate that Lopez failed to follow

policy procedures, resulting in substantial losses to Hyatt. He

cites three cases for the proposition that, in Texas, an employer

cannot give one reason for terminating an employee and then change

 

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3See P. Br. 14 (citing Levy v. Jarrett, 198 S.W. 333 (Tex.

Civ. App. 1917, no writ); Measday v. Kwik-Kopy Corp., 713 F.2d 118

(5th Cir. 1983); Phoenix Ins. Co. v. Ross Jewelers, Inc., 362 F.2d

985, 988 (5th Cir. 1966)). 

- 9 -

the reason.3 Hyatt’s proffered reason for discharging Lopez was

that he “allowed for a food vender to submit for payment false

invoices. These invoices were for substantial amounts of money.

No product was received for these invoices.” P. App. 33. Lopez

appears to argue that Hyatt initially accused him of stealing, and

for this reason terminated him, but then changed its reason to his

failure to follow company procedures. 

Lopez next argues that the at-will doctrine is not meant to

relieve employers of liability for wrongful termination of an

employee based on statements that are defamatory per se and falsely

accuse an employee of an unlawful act. He contends that

terminating an employee based on a statement that is defamatory per

se constitutes wrongful termination. Lopez posits that he was

wrongfully terminated based on false accusations that he committed

a crime, despite Hyatt’s knowledge of their falsity, that the Texas

at-will doctrine does not allow termination for an unlawful reason,

and that his termination based on a defamatory statement and false

accusation of a crime is an unlawful act.

B

The general rule in Texas is that, “absent a specific

agreement to the contrary, employment may be terminated by the

 

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employer or the employee at will, for good cause, bad cause, or no

cause at all.” Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d

501, 502 (Tex. 1998) (citing cases). Employment “is presumed to be

at-will in Texas.” Midland Judicial Dist. Cmty. Supervision &

Corrections Dep’t v. Jones, 92 S.W.3d 486, 487 (Tex. 2002) (per

curiam) (citing Montgomery County Hosp. Dist., 965 S.W.2d at 502).

“In order for an employee to avoid the effects of the

employee-at-will doctrine, he must show that the employer

unequivocally expressed its intent to be bound not to terminate the

employment except under clearly specified circumstances or

conditions.” Farone v. Bag’n Baggage, Ltd., 165 S.W.3d 795, 799

(Tex. App. 2005, no pet.) (citing Jones, 92 S.W.3d at 488).

Otherwise, the employment-at-will doctrine “allows an employee to

quit or be fired without liability on the part of the employer or

employee, with or without cause.” Reyna v. First Nat. Bank, 55

S.W.3d 58, 71 (Tex. App. 2001, no pet.) (citing Rios v. Tex.

Commerce Bancshares, Inc., 930 S.W.2d 809, 814 (Tex. App. 1996,

writ denied); Massey v. Houston Baptist Univ., 902 S.W.2d 81, 83

(Tex. App. 1995, writ denied); Reynolds Mfg. Co. v. Mendoza, 644

S.W.2d 536, 538 (Tex. App. 1982, no writ)). 

Lopez does not argue that his employment with Hyatt was not an

employment at-will. And he does not contend that Hyatt discharged

him for refusing to perform an illegal act, thus coming within this

narrow exception to the employment-at-will doctrine. See Sabine

 

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Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985) (“We

now hold that public policy . . . requires a very narrow exception

to the employment-at-will doctrine . . . [and that] narrow

exception covers only the discharge of an employee for the sole

reason that the employee refused to perform an illegal act.”).

Accordingly, a reasonable jury could only find that Lopez was

employed at-will and therefore was subject to termination at any

time, with or without cause.

C

 Lopez’s reliance on three cases to contend that Hyatt could

not give one reason for terminating him, and then change the

reason, is misplaced. None of these cases involved an at-will

employee, and none indicated that an employer could not terminate

an at-will employee for one reason and then later change the

reason.

Lopez also maintains that terminating an employee based on a

statement that is defamatory per se or based upon false accusations

that he committed a crime constitutes wrongful termination. He

argues that under the employment-at-will doctrine, the termination

can be for any reason, provided it is not an unlawful one. But

Lopez cites no Texas case that supports his argument. Texas

recognizes a narrow exception to the employment-at-will doctrine

when an employer terminates an employee based on his refusal to

perform an illegal act. Sabine Pilot Serv., Inc., 687 S.W.2d at

 

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735. A reasonable jury could not find that Lopez falls within this

narrow exception. At best, it could only find that Hyatt

terminated Lopez’s employment for bad cause. But since this is

permissible under the at-will doctrine, Lopez is precluded from

recovering for wrongful termination.

* * * 

For the foregoing reasons, Hyatt is entitled to summary

judgment dismissing Lopez’s claims for defamation and wrongful

termination. This lawsuit is dismissed with prejudice by judgment

filed today.

SO ORDERED.

April 25, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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