IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20374

Summary Calendar

CURTIS WIGGINS, 

 Plaintiff - Appellant

v.

GOLDEN CORRAL CORPORATION, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-573

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.

PER CURIAM:*

Curtis Wiggins brought a state-law defamation claim and a failure-topromote claim under Title VII against the defendant, Golden Corral

Corporation. The district court granted summary judgment in favor of Golden 

Corral on both claims. We affirm.

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 3, 2020

Lyle W. Cayce

Clerk

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We review a summary judgment de novo, applying the same standards 

as the district court. Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 406 

(5th Cir. 2016). Summary judgment is appropriate when, viewing all facts in 

the light most favorable to the non-movant, “there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). 

I.

To prevail on a defamation claim in Texas, a private plaintiff must show 

that (1) the defendant published a statement about the plaintiff, (2) the 

statement was defamatory, and (3) the defendant acted negligently regarding 

the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 

(Tex. 1998). “Publication occurs if the defamatory statements are 

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

capable of understanding their defamatory import and in such a way that the 

third person did so understand.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 

572, 579 (Tex. 2017) (cleaned up). 

Wiggins fails to point to any evidence of publication by Golden Corral of 

any allegedly defamatory statements. He testified that he was unaware of 

anyone—other than attorneys he was looking to potentially hire—who had 

seen the internal forms he claims contain defamatory material. Further, he 

testified that he is unaware of anyone to whom a Golden Corral employee 

published allegedly defamatory statements. He testified that he is unaware of 

any Golden Corral employee who has ever spoken to anyone outside of the 

organization regarding Wiggins’ employment there at all—when asked if he 

was “aware of anybody that Golden Corral has told why you’re not working at 

Golden Corral anymore,” Wiggins responded, “No.” In fact, he testified that he 

is unaware of “anybody employed at any time by Golden Corral . . . who has 

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said anything about [him] to anybody.” Wiggins’ deposition makes it clear that 

he has no evidence of publication of any allegedly defamatory statement.

Wiggins nevertheless seeks to establish publication by arguing that, 

when he applies for new employment, he is required to disclose on applications 

that he was fired for cause by Golden Corral. This theory of compelled selfdisclosure has been squarely rejected by the Supreme Court of Texas. See 

Rincones, 520 S.W.3d at 529 (“[T]he publication element of a defamation claim 

cannot be satisfied by a theory of ‘compelled’ self-disclosure and there is no 

independent cause of action for compelled self-defamation.”). We therefore hold 

that Wiggins has failed to establish publication, a necessary element of his 

defamation claim. See WFAA-TV, Inc., 978 S.W.2d at 571. The district court 

correctly granted summary judgment in favor of Golden Corral.1

II.

Before filing a claim under Title VII in federal court, plaintiffs must first 

“exhaust their administrative remedies by filing a charge of discrimination 

with the Equal Employment Opportunity Commission” within a statutorily 

mandated time period. Davis v. Fort Bend Cty., 893 F.3d 300, 303 (5th Cir. 

2018), aff’d sub nom. Fort Bend Cty. v. Davis --- U.S. ---, 139 S. Ct. 1843 (2019).

Administrative exhaustion for Title VII claims is mandatory (but not 

jurisdictional), see 139 S. Ct. at 1851, and courts will dismiss claims not 

properly exhausted, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 

(2002).

1 The operative complaint is Wiggins’ first amended complaint. Wiggins filed multiple

other proposed amended complaints, but the court denied him leave to file those documents.

Assuming—but not deciding—that Wiggins has sufficiently raised this issue for our 

consideration, he fails to show on appeal that the decisions by the district court to deny his 

motions for amended pleadings amount to an abuse of discretion. See Rio Grande Royalty 

Co., Inc. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010) (“A district 

court’s denial of a motion for leave to amend a pleading is subject to review for abuse of 

discretion.”).

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Wiggins filed a charge with the EEOC shortly after his termination. But 

the charge does not assert any claim based on a failure to promote. Rather, it 

asserts that other workers received more favorable schedules, that they were 

given food while on the clock, and that Ms. Pena (the general manager) treated 

black employees in a “tyrant-like manner.” The charge also alleges that 

Wiggins was ultimately terminated because of his race. Nowhere in the charge 

did Wiggins claim that he was not promoted because of his race. The failureto-promote theory did not appear until Wiggins’ First Amended Complaint, 

filed August 28, 2018. We hold that Wiggins failed to administratively exhaust 

his failure-to-promote claim. See Filer v. Donley, 690 F.3d 643, 647 (5th Cir. 

2012) (“Ordinarily, an employee may not base a Title VII claim on an action 

that was not previously asserted in a formal charge of discrimination to the 

EEOC, or that could not reasonably be expected to grow out of the charge of 

discrimination.” (cleaned up)). The district court therefore properly granted 

summary judgment in Golden Corral’s favor.

Even if he had properly exhausted the claims, Wiggins fails to show that 

Golden Corral’s proffered justifications for the challenged hiring decisions were

pretextual or that his race was a “motivating factor” in the decision. In failureto-promote cases, if a plaintiff makes a prima facie showing of discrimination, 

the burden shifts to the defendant to show that the employment decisions were 

made for legitimate, non-discriminatory reasons. See Autry v. Fort Bend Indep. 

Sch. Dist., 704 F.3d 344, 347 (5th Cir. 2013). If a defendant offers sufficient 

reasons, the burden shifts back to the plaintiff to show that (1) the reasons are 

either a pretext for discrimination, or (2) the reasons, even if true, were only 

one reasons for the employment decision, “and another motivating factor is the 

plaintiff’s protected characteristic.” Id. (cleaned up).

Here, Golden Corral offered at least one legitimate, non-discriminatory 

reason for its decision to hire others as general managers of the restaurant 

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instead of promoting Wiggins: he was not qualified.2 Golden Corral’s policy 

requires that a Hospitality Manager work as a Kitchen Manager as well before 

being qualified for promotion to General Manager. Wiggins worked only as a 

Hospitality Manager and had never worked as Kitchen Manager. Armendariz 

and Pena, who were hired as General Managers at the same restaurant at 

which Wiggins worked, both had relevant experience as general managers of 

comparable restaurants. Wiggins fails to establish that this proffered reason 

was actually a pretext for discrimination or even that race was a motivating 

factor in the challenged employment decisions. For this additional reason, 

summary judgment in Golden Corral’s favor was appropriate.

III.

Finally, we briefly address Wiggins’ contention that the case was moot 

and summary judgment was therefore improper. Wiggins appears to argue 

that Golden Corral’s summary judgment motion was mooted by his filing of 

motion for leave to file an amended complaint. This is incorrect. The operative 

pleading in this case was Wiggins’ first amended complaint. That pleading 

contained two claims: defamation and failure to promote under Title VII. The 

district court denied all of Wiggins’ requests for leave to file amended 

complaints. Wiggins does not explain how any of this somehow rendered the 

summary judgment motion (or the case) moot.

AFFIRMED

2 For purposes of this analysis, we assume, without deciding, that Wiggins satisfied 

his prima facie burden.

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