J. Lindsey v. Dyncorp International, L.L.C.

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J. Lindsey v. Dyncorp International, L.L.C.

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Case: 10-20130

Document: 00511179288

Page: 1

Date Filed: 07/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 20, 2010 N o . 10-20130 S u m m a r y Calendar Lyle W. Cayce Clerk

J . PATRICK LINDSEY, P la in t if f ­ A p p e lla n t , v. D Y N C O R P INTERNATIONAL, L.L.C., D e fe n d a n t ­ A p p e lle e .

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CV-700

Before GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* J . Patrick Lindsey appeals the district court's grant of summary judgment o n his breach of contract claims. We affirm. I L in d s e y entered into an employment contract with DynCorp International L L C to work in Iraq as a longbow crew trainer. The contract was for a term of e ig h t months, but it allowed either party to terminate the agreement without

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Date Filed: 07/20/2010

No. 10-20130 cau se. It provided that, if DynCorp terminated the contract prematurely

w it h o u t cause, Lindsey was entitled to a pro-rated completion bonus, payment o f accrued annual leave, and return transportation. If Lindsey terminated the c o n t r a c t early, he was responsible for his own transportation costs and forfeited h is completion bonus. The parties both stipulated that this was an at-will e m p lo y m e n t agreement. T h e contract stated that DynCorp would pay Lindsey $4,063.66 every two w e e k s , resulting in an annualized salary of $105,655.16. After Lindsey had b e g u n work in Iraq, DynCorp discovered that it had made a mistake and c h a n g e d Lindsey's salary terms to an hourly wage of $24.90 an hour, resulting in about $51,792 annually. DynCorp allowed Lindsey to keep the previous w a g e s he had received under the higher salary, but then reduced his salary for t h e subsequent paychecks. Lindsey continued working after DynCorp reduced h is salary and completed the eight-month contract period. Lindsey sued in Texas state court, asserting a claim for fraud and m is r e p r e s e n t a t io n . The case was removed to federal court based on diversity ju r is d ic t io n . Lindsey subsequently amended his complaint to assert only a b r e a c h of contract claim. The district court granted summary judgment on this c la im , and Lindsey now appeals. II W e review the grant of a motion for summary judgment de novo, applying t h e same standard as the district court.1 We view the evidence in the light most fa v o r a b le to the non-moving party and avoid credibility determinations and w e i g h in g of the evidence.2 Summary judgment is appropriate when the

c o m p e t e n t summary judgment evidence demonstrates that there are no genuine

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Threadgill v. Prudential Sec. Grp., Inc., 145 F.3d 286, 292 (5th Cir. 1998). Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002).

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Date Filed: 07/20/2010

No. 10-20130 is s u e s of material fact and the moving party is entitled to judgment as a matter o f law.3 An issue of material fact is genuine if a reasonable jury could return a v e r d ic t for the nonmovant.4 III T h e district court determined that the change in Lindsey's pay was an e n fo r c e a b le contract modification under Texas law. Lindsey argues that issues o f material fact preclude summary judgment on this issue. The parties do not dispute that Texas law applies to the contract claim. Under Texas law, either party may impose modifications to the employment t e r m s of an at-will employment contract as a condition of continued e m p lo y m e n t .5 "The party asserting the modification still must prove that the o t h e r party agreed to modify the employment terms."6 Specifically, the party m u s t prove: (1) notice of the change, and (2) acceptance of the change. 7 G e n e r a lly "an employee must accept the new terms or quit," and if he "continues w o r k in g with knowledge of the changes, he has accepted the changes as a matter o f law." 8 T h e issue here is whether Lindsey received notice of the change, since if h e received notice, his continued employment with DynCorp constitutes a c c e p t a n c e as a matter of law.9 To prove notice, the employer "must prove that h e unequivocally notified the employee of definite changes in employment
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Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986). Id. Id. Id. See id.

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No. 10-20130 t e r m s . "1 0 "[T]he employee must know the nature of the changes and the

c e r t a in t y of their imposition." 1 1 T h e record reflects that Lindsey was unequivocally notified of the m o d ific a t io n to his employment agreement. DynCorp provided an affidavit by D e a n Crawford, the Vice President of Human Resources for DynCorp, stating t h a t "representatives from DI's Staffing organization notified Lindsey of the m is t a k e shortly after presenting him the original [contract] in January 2007 and s e n t him an amended first page to the Agreement stating the modified salary." Lindsey does not dispute that he received this page and concedes that DynCorp a d v is e d him of a contract adjustment. In addition, Lindsey does not dispute that h is subsequent pay stubs reflected the change to the terms of his salary. Accordingly, it is clear from the record that DynCorp properly notified Lindsey o f the pay modification. Lindsey's continued employment with DynCorp after the modification c o n s t it u t e d acceptance of that modification.1 2 e n fo r c e a b le . Thus, the modification is

Because it is undisputed that DynCorp paid Lindsey the full

a m o u n t it owed him under the modified contract, Lindsey's breach of contract c la im fails as a matter of law. * * *

F o r the foregoing reasons, we AFFIRM.

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Id. Id. See id.

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