Branscomb Law Obtains Texas Supreme Court Decision Protecting Employers

Posted on May 26, 2017

Branscomb Law achieved a clean sweep win in the case of ExxonMobil Corp and WHM Custom Services, Inc. v Rincones, — S.W.3d – (Tex. 2017) providing clarity and protection to Texas employers. While the Court’s decision is important on many issues, this summary’s focus is only on the employment-related aspects of the case.

The facts leading to this decision are similar to those many businesses face. Like many employers, WHM has a mandatory drug policy and used a third-party administrator (DISA) to conduct its testing and reporting. WHM’s clients, in this instance Exxon, also required WHM to have such a policy in order for its employees to work on Exxon’s premises.

Rincones worked for WHM and was randomly selected for a drug test, which came back positive. Accordingly, he was declared inactive for work assignments. Rincones then claimed the test was faulty. Several days later, Rincones went to his own doctor and had a new drug test performed. He then asserted that the new test showed that the former DISA test was wrong. However, DISA did not accept the test results. The new drug test was performed using a different sample and had cut-off levels much higher than required under WHM’s testing policy. Also, DISA policy does not accept tests that are not sanctioned by the program.

WHM told Rincones he needed to get with DISA to have his status changed from inactive to active before he could be assigned to work. DISA has a rehabilitation process to obtain active status. Rincones then asked “Why does Tony Davis get to work” because he believed that Davis had tested positive in the past and was now working. Rincones was informed that Davis did what was required by DISA. Rincones never did.

Instead, Rincones sued WHM, Exxon and DISA, claiming, among other things, that he was discriminated against due to his national origin/race (Hispanic), retaliated against for complaining about discrimination, and had to defame himself to others regarding the circumstances as to why he was no longer able to work for WHM. He also made claims against Exxon alleging that WHM and DISA were agents of Exxon and therefore Exxon was liable for all of his claims. He also claimed Exxon tortuously interfered with his employment because Exxon sent a letter to WHM informing the company that it needed to notify Exxon if someone is no longer eligible to access its facility. Rincones had an inactive status and, therefore, was ineligible for access.

Representing both WHM and Exxon, Branscomb attorneys successfully obtained summary judgment and dismissal of all of Rincones’ claims. However, the Texas Thirteenth Court of Appeals sitting in Edinberg, Texas reinstated the claims. The Texas Supreme Court reversed and re-ordered the claims to be dismissed.

In a very important decision, the Court held that Texas does not recognize a theory of self-compelled defamation. This is vitally important because most employees who are separated for cause generally claim that the employer’s reason was false and the employer is liable for defamation when the separated employee reports to subsequent potential employers and others the “false” reason for being separated, even if the employer never said a word to anyone. This is essentially what Rincones claimed. However, the Court ended the matter by clearly stating, for the first time, that Texas does not recognize the self-compelled theory of defamation.

The Court also found that Rincones did not establish the basis for a claim of discrimination because there was no evidence that anyone had ever been allowed to submit a different test of a different sample and none of the persons he alleged were treated differently in some fashion were similarly situated to him.

Finally, the Court indicated that Rincones did not engage in protected activity as was necessary to present a claim of retaliation. Rincones based his retaliation claim on his question as to why “Tony Davis”, a non-Hispanic, was allowed to work and he, a Hispanic, was not. Although the Thirteenth Court found that asking about an individual who WHM knew was not Hispanic was sufficient to alert WHM that Rincones, being Hispanic, was really claiming discriminatory treatment, the Supreme Court disagreed. The Court noted that Rincones never complained about discrimination and his question about Davis “was not sufficient to have alerted WHM to alleged discrimination.” Accordingly, while magic words are not required to trigger protected activity, simply asking about another employee with a different race/national origin is not enough.

Keith Sieczkowski is the head of Branscomb Law’s employment group and was the counsel in the case from trial through the Texas Supreme Court proceedings. If you have any questions, please contact Keith or Sandra White at or

A special note of thanks must be given to Branscomb’s clients in this matter, WHM Custom Services, Inc. and ExxonMobil Corporation for staying the course and holding true to their convictions.