### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40467

BARBARA ALLAMON, Plaintiff–Appellant
v. ACUITY SPECIALTY PRODUCTS, INCORPORATED; ZEP, INCORPORATED; ROSS HARDING, Defendants–Appellees

Appeals from the United States District Court for the Eastern District of Texas USDC No. 1:10-CV-00294

Before WIENER, DENNIS, and OWEN, Circuit Judges. PER CURIAM: * Plaintiff–Appellant B arbara Allamon (“A l l a mon”) appeals from the dismissal on summary judgment of her s uit against Defendants–Appellees (collectively, “Zep”) for breach of her employment contract with Zep. We agree with the district court t hat there was no breach because Zep modified the disputed term of Allamon’s at-will employment. U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

### F I L E D J uly 1, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40467 Document: 00512292765 Page: 1 Date Filed: 07/01/2013No. 12-40467

Eve n i f A l lamon’s e vidence were admissible, the oral promise of employment “as long as she’s a ble and p erformance is satisfactory” i s too general and equivocal to rebut the strong Texas p resumption of at-will e m p loyment. 1 Neither are we persuaded by A llamon’s contention t hat the w o r k e r’s compensation backdrop t o this case weakens the r equirement that, to vitiate the presumption o f at-will e mployment, Zep h ad to “unequi v o c a l l y i n d i c a t e a definite intent t o be bound not to terminate [ he r ] e x c ept under c learly s pecified circumstances.” 2 And, in t h e a b s ence of any enforceable “original agreement,” Allamon’s mutual-mistake argument would fail even if she had preserved it in the district court. 3 Because Allamon was employed at-will, Z ep c ould “impose modifications to the employment t erms a s a c ondition of c ontinued employment.” 4 The summary judgment record conclusively establishes that (1) A llamon and Z e p jointly a mended the terms of h er employment i n response to her employer’s “Hot Sauce” program, and ( 2 ) A llamon continued to work for Zep after receiving unequivocal n otification that her p reviously exc l u s i v e c lient lists would be shared with the i nside sales team. 5 Accordingly, the exclusivity provision was modified, not b reached. Indeed, s ummary j udgment in favor of Ze p was warranted on this basis alone. And , l i k e t h e district court, we need not and

1 See M ontgom ery Cnty. H

osp . D i st. v . Brow n , 965 S. W. 2d 501, 502 ( Tex. 1998)

.
2 Id.

3 See Techni ca l A utom a t i on Serv s. Corp

. v . Li berty Surp l us Ins. Corp

. , 673 F. 3d 399, 408 ( 5th Cir. 2012)

.

4 H a tha w a y v . G en. M

i ll s, I nc. , 711 S. W. 2d 227, 229 ( T ex. 1986)

.
5 See i d. ( “If the em p loyer p roves that he has unequivocally notif ied the em p loyee of the changes , the em p loyee’s continuing em p loym ent w ill cons titute accep tance as a m atter of law

. ”)

. 2 Case: 12-40467 Document: 00512292765 Page: 2 Date Filed: 07/01/2013No. 12-40467

therefore do n o t a d dress the effect of the later w r itten settlement which superseded all prior agreements. AFFIRMED.

3 Case: 12-40467 Document: 00512292765 Page: 3 Date Filed: 07/01/2013