IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JAMES GAUTHIER,

Plaintiff,

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v.

THE GOODYEAR TIRE & RUBBER CO.,

Defendant. 

CIVIL ACTION NO. 1:23-cv-281

JURY DEMANDED

REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

The Goodyear Tire & Rubber Co. (“Goodyear”) files this Reply in Support of its Motion 

for Summary Judgment and respectfully requests that the Court grant summary judgment on 

Plaintiff’s claims. As detailed below, Gauthier’s Response to Defendant’s Motion for Summary 

Judgment (“Response”) not only abandons the portions of his claim that relate to alleged tampering 

of a witness, altering of evidence, and perjury, it is also based on arguments that rely solely on 

speculation, failing to create a genuine issue of material fact. 

 Gauthier does not dispute that the only evidence he presents in support of his claims is his 

own, subjective belief that he was terminated because he refused Goodyear’s demand to change 

his statement so that Goodyear could avoid a fine. Although Gauthier ostensibly cites cases to 

support his opposition to Goodyear’s Motion, the undersigned has been unable to locate two of the 

cases and several other cases Plaintiff relies upon do not contain the quoted language and/or stand 

for the propositions for which they are cited. Based upon actual, applicable authority, the Court 

should grant Goodyear’s Motion for Summary Judgment. 

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A. GAUTHIER ABANDONED HIS TAMPERING OF A WITNESS, ALTERING EVIDENCE, AND 

PERJURY CLAIMS

Goodyear is entitled to summary judgment on Plaintiff’s Sabine Pilot claims based on his 

allegations that Goodyear required him to engage in acts that consisted of tampering of a witness 

(Section 36.05 of the Texas Penal Code), altering evidence in an official proceeding (Section 37.09 

of the Texas Penal Code), and perjury (Section 37.02 of the Texas Penal Code), because Gauthier 

entirely failed to address these claims in his Response. A party abandons a claim when it fails to 

address it in response to a dispositive motion. Terry Black’s Barbeque, LLC v. Sate Auto. Mut. Ins. 

Co., 22 F.4th 450, 459 (5th Cir. 2022). Accordingly, Defendant’s Motion on Plaintiff’s Sabine 

Pilot claims based on tampering of a witness, altering evidence in an official proceeding, perjury 

claim is unopposed, and Goodyear is therefore entitled to summary judgment on this claim for the 

reasons set forth in its Motion.

B. GAUTHIER’S SUBJECTIVE BELIEF THAT HE WAS REQUIRED TO COMMIT AN ILLEGAL 

ACT DOES NOT CREATE A FACT ISSUE 

In an effort to attempt to salvage his remaining Sabine Pilot claim, based upon his argument 

that Goodyear terminated him for refusing to falsify a statement that somehow could have resulted 

in a regulatory fine, Gauthier relies solely on his subjective belief that he was terminated for 

refusing to change his statement so that Goodyear could “get out of the fine.” Response at p. 2.

But a mere “regulatory violation” is not a criminal act carrying criminal penalties, and; therefore,

even this alleged action cannot support a Sabine Pilot claim. See Winters v. Houston Chronicle 

Publ’g. Co., 795 S.W.2d 723, 724 (Tex. 1990) (to be actionable, the illegal acts at issue must carry 

criminal penalties); Sabine Pilot Serv. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985); Hancock v. 

Express One Int’l, Inc., 800 S.W.2d 634, 636 (Tex. App.—Dallas 1990, writ denied).

In support of his position that falsifying documents to cover up regulatory violations can 

be an illegal act supporting a Sabine Pilot claim, Plaintiff cites to “Beets v. Texas Instruments, Inc.,

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No. 94-10034, 1994 WL 714026, at *3 (5th Cir. Dec. 16, 1994) (unpublished).” The undersigned

has not been able to locate this case by caption or citation, nor any case bearing any resemblance 

to it. The citation “1994 WL 714026” is of a case titled People v. Smythe, 210 A.D.2d 887, 620 

N.Y.S.2d 647 (1994) and is related to a judgment of second-degree murder from the state of New 

York. 

Gauthier also cites to Higginbotham v. Allwaste, Inc., claiming the court in that case held 

that “falsifying testing records could form the basis of a Sabine Pilot claim.” Response at p. 3. But 

the present case is not analogous to Higginbotham, which relates to statements made in financial 

documents to the company’s internal auditor and as part of filings with the SEC. See 889 S.W.2d 

411, 412 (Tex.App—Houston [14th Dist.] 1994, writ denied). In Higginbotham, the plaintiff 

claimed he was asked to prepare schedules and rehearse answers concealing information to the 

company’s internal auditor to hide overstatements in profits for financial reports to be filed with 

the SEC. See generally, id. The actions that Higginbotham claimed his employer asked him to do 

were clear violations of federal law carrying criminal penalties and were not “falsifying testing 

records,” as Gauthier claims. Id. at 416.1 Unlike in Higginbotham, Gauthier has presented no 

evidence that Goodyear directed him to change his statement for the specific purpose of falsifying 

a government filing or avoiding a fine. There is also no evidence that Goodyear asked Gauthier to 

violate a law that would carry criminal sanctions. Higginbotham does not state that falsifying 

testing records necessarily forms the basis of a Sabine Pilot claim or that an employee’s subjective 

“belie[f]” automatically creates a fact issue precluding summary judgment, and it is far from 

dispositive authority in this case. 

1 While the appellate court overturned the district court’s summary judgment award in Higginbotham, it did so because 

it found fact issues as to whether the employee’s conduct was insubordination or whistleblowing, whether 

Higginbotham performed the duties but refused to go along with the plan to deceive the auditor, and whether the actual 

conduct committed was an offense under federal law. See generally, id. at 411-417.

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In any event, Gauthier’s subjective belief that he was terminated due to his refusal to 

perform what he characterizes as an “illegal act,” without more, is simply not enough to raise a 

fact issue. Robinson v. The Devereux Foundation, No. 14-01-00081-CV, 2002 WL 1315631, at *3 

(Tex.App.—Houston [14th Dist.] June 6, 2002, pet. denied) (not designated for publication)

(holding employee’s subjective belief that she was terminated for refusing to commit an illegal 

act, without more, is not sufficient to raise a fact issue). Beyond mere speculation and conjecture, 

Gauthier offers nothing to show that Goodyear attempted to persuade Gauthier to change his 

statement in order to avoid any alleged fines.

2 Without evidence that Goodyear asked Gauthier to 

perform an objectively illegal act, his claim cannot survive summary judgment. See White v. FCI 

USA, Inc., 319 F.3d 672, 677 (5th Cir. 2003) (holding summary judgment was proper when only 

evidence presented was employee’s subjective interpretation of supervisor’s remarks rather than 

being asked or required to commit an unlawful act); Sandberg v. STMicroelectronics, Inc., 600 

S.W.3d 511, 523 (Tex.App.—Dallas 2020, pet. filed) (finding summary judgment proper without 

evidence that employee was ever required to sign false tax statements or other financial documents 

but rather stated he would not execute such documents if there was a breach of the APA or other 

improper entries); Tollack v. Allianz of America Corp., No. 05-91-01943-CV, 1993 WL 321458, 

at *3 (Tex.App.—Dallas Aug. 16, 1993, writ denied) (not designated for publication) (findings the 

absence of summary judgment evidence showing employee was asked or required to commit an 

alleged illegal act, when employee refused to sign tax documents because he believed it would 

subject him to criminal liability, did not meet the Sabine Pilot exception); Prigmore v. Wilson 

Engraving Co., Inc., No. 05-92-02125-CV, 1993 WL 209654, at *3 (Tex.App.—Dallas June 15, 

2 The summary judgment evidence clearly shows that Goodyear reported the leak to the agency. 

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1993, writ dism’d w.o.j.) (not designated for publication) (holding it was not enough that employee 

unilaterally refused to perform an act based on his belief that such an act was illegal).

Gauthier cites a number of cases in an effort to argue that this Court cannot grant summary 

judgment, claiming that a jury must decide whether Goodyear “required” Gauthier to perform an 

allegedly illegal act. In support of this position, Gauthier cites to “Roca v. King’s Creek Plantation, 

LLC, 500 F. App’x 273, 276 (5th Cir. 2012) (unpublished).” The undersigned has not been able to

locate this case by caption or citation, nor any case bearing any resemblance to it. In a similar vein, 

Morales v. SimuFlite Training Int’l, Inc., which Gauthier cites, does not contain the quoted 

language and, importantly, does not stand for the proposition that Plaintiff claims. The Morales

court found, based on very specific facts, there was more than a scintilla of evidence in the 

summary judgment record to show that plaintiff’s refusal to commit an act with criminal actions 

lead to his termination. 132 S.W.3d 603, 608-610 (Tex. App.—Fort Worth 2004, no pet.). The

court did not broadly hold that “whether an employer’s statement rises to the level of a ‘request’ 

or ‘requirement’ is generally a question of fact” that must be presented to the jury, as Plaintiff 

represents. Response at p. 3. 

Similarly, the White v. FCI USA, Inc. case also does not hold that “whether the employer 

required the illegal act is ‘typically a fact issue to be decided by a jury,’” as Plaintiff states. 

Response at p. 3. On the contrary, the White court noted, in finding that the plaintiff did not submit 

any evidence that she was required by defendant to commit unlawful acts, that a factual dispute 

precludes summary judgment only if the evidence would permit a reasonable jury to return a 

verdict for the nonmoving party. 319 F.3d 672, 674-76 (5th Cir. 2003). Citing to Burt v. City of 

Burkburnett, 800 S.W.2d 625, 626–27 (Tex.App.—Fort Worth 1990, writ denied), the White court 

found that the plaintiff only presented her subjective interpretation of her supervisor’s remarks and 

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that this was not sufficient to show that she was required, not just requested, to commit unlawful 

acts. Id. If White and Morales held more generally that every question of whether an employer’s 

directive amounts to a request to perform an illegal act is a fact issue precluding summary 

judgment, as Gauthier presents, no employer would ever be granted summary judgment on a

Sabine Pilot claim. Here, because Gauthier has failed to show that he was required by Goodyear 

to commit an illegal act, Goodyear is entitled to summary judgment.

C. THERE IS NO FACT ISSUE AS TO WHETHER GAUTHIER WAS TERMINATED SOLELY FOR 

REFUSING TO COMMIT AN ILLEGAL ACT

Notwithstanding the fact that giving an employee a chance to change his statement in an 

internal company document is not an illegal act, Gauthier does nothing to show that he was 

terminated for refusing to change his statement. Gauthier does not even attempt to refute 

Goodyear’s actual, stated reason for his termination – that the timeline he presented as part of the 

investigation did not match the other employees’ statements or records and that Gauthier did not 

inform his manager of the leak. 

Arguing that this issue must necessarily be presented to a jury, Gauthier once again points 

to the Roca case, which the undersigned has been unable to locate. Gauthier also cites to Burton v. 

Freescale Semiconductor, Inc. and language from the case that purportedly states that “the issue 

of the employer’s true motive for termination is typically a question of fact for the jury.” Response 

at p. 4. Not only does the Burton case not contain this quoted language, but it is also not even a 

Sabine Pilot case. The Burton court found merely that because the employer’s reasons leading up 

to the employee’s termination changed, a jury could determine there was a fact issue as to the 

employer’s true rationale. Here, Gauthier presents no evidence, other than his own subjective 

belief, that Goodyear’s stated reason for his termination was false. Gauthier cannot manufacture 

a fact issue on this basis.

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Next, Gauthier references Texas Dept of Human Servs v. Hinds to argue that the Texas 

Supreme Court has held that the refusal to perform an illegal act is a fact question for the jury and 

then includes a “quotation” from the case. Response at p. 4 and 5. Not only does the Hinds case 

not include the alleged quotation, but the case actually states that the employee must prove that his 

refusal to perform an illegal act was the sole cause of his discharge, holding that “an employer 

who discharges an employee both for refusing to perform an illegal act and for a legitimate reason 

or reasons cannot be liable for wrongful discharge.” 904 S.W.26 629, 633 (Tex. 1995). Similarly, 

the Physio GP, Inc. v. Naifeh case and the City of Midland v. O’Bryant case do not contain the 

language Plaintiff quotes or do not stand for the propositions for which they are being cited. 

Response at p. 5. Because the actual, controlling authority supports Goodyear’s legal position, and

Gauthier cannot create a fact issue regarding Goodyear’s reason for his termination, his Sabine 

Pilot claim must be dismissed in its entirety. 

II. CONCLUSION

For the foregoing reasons, Goodyear asks the Court to grant its summary judgment on the 

entirety of Gauthier’s claims, to dismiss Gauthier’s lawsuit with prejudice, and to grant Goodyear 

any and all further relief, at law or in equity, to which it may be justly entitled.

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Dated: October 9, 2024 

Of Counsel:

Urvashi Morolia

State Bar No. 24096083

Federal I.D. No. 3436021

umorolia@littler.com

LITTLER MENDELSON, P.C.

1301 McKinney Street, Suite 1900

Houston, TX 77010

713.951.9400 (Telephone)

713.951.9212 (Facsimile)

/s/ Kelley Edwards

Kelley Edwards 

State Bar No. 24041775 

Federal I.D. No. 560755 

kedwards@littler.com

LITTLER MENDELSON, P.C.

1301 McKinney Street, Suite 1900 

Houston, TX 77010 

713.951.9400 (Telephone) 

713.951.9212 (Facsimile) 

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that on October 9, 2024, the foregoing document was e-filed with the Clerk 

of the Court using the CM/ECF system which will send electronic notice of filing to the following 

counsel of record:

Brandon P. Monk 

THE MONK LAW FIRM 

4875 Parker Drive 

Beaumont, Texas 77705 

Phone: (409) 724-6665 

Fax: (409) 729-6665 

brandon@themonklawfirm.com

ATTORNEY FOR PLAINTIFF

/s/ Kelley Edwards

Kelley Edwards 

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