IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Barbara Allamon (“Allamon”) appeals from the

dismissal on summary judgment of her suit against Defendants–Appellees

(collectively, “Zep”) for breach of her employment contract with Zep. We agree

with the district court that there was no breach because Zep modified the

disputed term of Allamon’s at-will employment.

United States Court of Appeals

Fifth Circuit

F I L E D

July 1, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 12-40467

Even if Allamon’s evidence were admissible, the oral promise of

employment “as long as she’s able and performance is satisfactory” is too general

and equivocal to rebut the strong Texas presumption of at-will employment.1

Neither are we persuaded by Allamon’s contention that the worker’s

compensation backdrop to this case weakens the requirement that, to vitiate the

presumption of at-will employment, Zep had to “unequivocally indicate a definite

intent to be bound not to terminate [her] except under clearly specified

circumstances.”2 And, in the absence 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, Zep could “impose modifications

to the employment terms as a condition of continued employment.”4 The

summary judgment record conclusively establishes that (1) Allamon and Zep

jointly amended the terms of her employment in response to her employer’s “Hot

Sauce” program, and (2) Allamon continued to work for Zep after receiving

unequivocal notification that her previously exclusive client lists would be

shared with the inside sales team.5 Accordingly, the exclusivity provision was

modified, not breached. Indeed, summary judgment in favor of Zep was

warranted on this basis alone. And, like the district court, we need not and

1 See Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998).

2

Id.

3See Technical Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 408

(5th Cir. 2012).

4 Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986).

5 See id. (“If the employer proves that he has unequivocally notified the employee of the

changes, the employee’s continuing employment will constitute acceptance as a matter of

law.”).

2

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No. 12-40467

therefore do not address the effect of the later written settlement which

superseded all prior agreements.

AFFIRMED.

3

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