Vinay K. KARNA, Plaintiff-Appellant, v. BP CORPORATION NORTH AMERICA, INCORPORATED, Defendant-Appellee, 609 F. App'x 814

PER CURIAM. After Vinay Kama resigned from BP North America (“BP”), he brought claims for unpaid overtime under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., wrongful termination under Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.1985), and in quantum meru-it. The district court granted BP

summary judgment on the quantum meruit and wrongful termination claims. A jury rendered a verdict in BP’s favor on the FLSA claim. Kama now appeals both grants of

summary judgment and argues that inadmissible evidence tainted the jury’s verdict. For the following reasons, we AFFIRM. BACKGROUND Kama is an expert in SAP Business Warehouse (“BW”) systems. These systems compile large companies’ critical operations data. The systems then allow users, typically the companies’ financial analysts, to access and analyze the information. Because these systems typically contain sensitive financial data, they are subject to the Sarbanes-Oxley Act’s (“SOX”), Pub L. No. 107-204,116 Stat. 745 (2002), internal control and auditing provisions.

In some cases, violating these provisions can lead to criminal penalties. See 18 U.S.C. § 1519. Before Kama worked for BP, he spent four years as an independent contractor for several companies. And before that, he spent four years at Ernst & Young as a BW consultant. In August 2005, Kama began working for BP as a BW Coordinator. At this point, Kama was BP’s independent contractor, though BP never contracted directly with Kama. BP contracted with Ideal Staffing Services (“Ideal”) for professional services.

In August 2005, Ideal then contracted with Deep Consulting (which Kama and his wife owned) for Kar-na’s services. Under the agreement between Deep and Ideal, Kama would give BP his BW expertise and would be paid by the hour. Kama was required to submit invoices showing the amount of time worked every two weeks. The invoices passed through Ideal on their way to BP. Likewise, the payments passed through Ideal on their way to Kama. After the 2005 agreement expired, Ideal contracted with another company that Kama and his' wife owned, LSR Consulting.

The contract’s terms were essentially unchanged: Kama would provide his expertise to BP through Ideal in exchange for a fixed hourly rate. After that contract ended, Ideal signed a third contract for Kama’s services with RD Data Solutions, of which Kama is a principal. In October 2009, BP made Kama a salaried employee. Kama had a new title (WR5/ER5 Applications Support Manager), but not necessarily new responsibilities. The arrangement worked for a time, then quickly soured. In October 2010, one of Kama’s bosses, John Ray asked him to provide anonymous IDs for BP’s WR5 warehouse system.

Because this might violate SOX’s record keeping and recording requirements, Kama refused. From then on, Kama alleges BP repeatedly asked him to engage in illegal activity. Specifically, BP allegedly asked him: to help another employee with an illegal “workaround” for his visa; to conceal from auditors that generic passwords were not changed, that contractors were not properly locked out of the BW system, that support personnel had not completed required Federal Energy Regulatory Commission training, and that a local administrative account violated SOX.

On February 15, 2011, about five months after Kama’s initial refusal, he resigned. He emailed his boss, stating, inter alia, “I love what I was doing but I need to move on ... Thanks so much.” Kama then sued BP, claiming violations of the FLSA, wrongful discharge under Sabine Pilot, and quantum meruit. Kama and BP both moved for

summary judgment. The district court granted BP

summary judgment on the quantum meruit and wrongful discharge claims. In the same order, the district court resolved some elements of the FLSA claim, but reserved others for the jury. Specifically, the district court refused to decide whether Kama was a computer professional exempt from the FLSA’s overtime requirements, whether BP’s FLSA violation was willful, and the amount of damages owed to Kama. The jury, after receiving an Allen charge, found that Kama was exempt from the FLSA’s overtime requirements. The district court entered judgment in BP’s favor. The district court’s rulings on

summary judgment and post-trial motions are thorough and comprehensive. Kama timely appealed. STANDARD OF REVIEW This Court reviews de novo the district court’s grant of

summary judgment and evidentiary rulings for abuse of discretion. Admiral Ins. Co. v. Ford, 607 F.3d 420, 422 (5th Cir.2010); Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 265 (5th Cir.2007). “Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Quorum Health Res., L.L.C. v. Maverick Cnty. Hosp. Dist., 308 F.3d 451, 458 (5th Cir.2002) (internal quotation and citation marks omitted). DISCUSSION This appeal challenges three of the district court’s rulings: its grant of

summary judgment on the wrongful discharge and quantum meruit claims, and its decision to admit evidence of BP employees’ salaries at trial. This court finds no reversible error in any of the district court’s rulings and need only address each briefly. I. WRONGFUL DISCHARGE Texas is an at-will employment state, meaning an employee can be fired at any time without cause. Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex.1993). There is a narrow exception, however, when an employer discharges an employee solely because that employee refused to perform an illegal act. Sabine Pilot, 687 S.W.2d at 735.

To establish a wrongful termination claim, the plaintiff must prove that: “(1) she was required to commit an illegal act which carries criminal penalties; (2) she refused to engage in the illegality; (3) she was discharged; [and] (4) the sole reason for her discharge was her refusal to commit an unlawful act.” White v. FCI USA, Inc., 319 F.3d 672, 676 (5th Cir.2003) (internal citations omitted). A plaintiff can also prove a Sabine Pilot claim by showing that she was constructively discharged. Nguyen v. Technical & Scientific Application, Inc., 981 S.W.2d 900, 902 (Tex.App.1998).

Constructive discharge occurs when job conditions are made so difficult or unpleasant that “a reasonable person in the employee’s position would have felt compelled to resign.” Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 177 (Tex.App.1991). Like the district court, we need not rule on whether Kama was actually asked to perform illegal acts. Kama has not created a triable material fact issue for two of these elements. First, Kama relies on a constructive discharge theory that Texas courts have never recognized.

Kama argues that the repeated requests to commit illegal acts made conditions so unpleasant that he had to resign. No Texas court has held that repeated requests to engage in illegal activity can support a constructive discharge claim. In fact, the only Texas court that has addressed the issue suggested that “this theory does not rise to the level of intolerable work conditions that would support a constructive-discharge claim.” Nezat v. Tucker Energy Servs., Inc., 437 S.W.3d 541, 547 (Tex.App.2014).

Second, assuming arguendo that repéated requests of illegality can support a Sabine Pilot claim, Kama points to no evidence showing that the sole reason for the acts causing constructive discharge was his initial refusal to engage in illegal activity. Sabine Pilot, 687 S.W.2d at 735. Kama points out that everything .was fine before his initial refusal, the subsequent requests followed his initial refusal, and BP has never explained its changed attitude toward him. Although this may be true, it does not create a genuine issue of material fact that his initial refusal was the sole cause of his alleged mistreatment.

Accordingly,

summary judgment was appropriate. II. QUANTUM MERUIT To recover in quantum meruit, a plaintiff must establish that: “1) valuable services and/or materials were furnished, 2) to the party sought to be charged, 3) which were accepted by the party sought to be charged, and 4) under such circumstances as reasonably notified the recipient that the plaintiff, in performing, expected to be paid by the recipient.” Heldenfels Bros. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992) (internal citation omitted). A party generally cannot recover if there is a valid contract covering the services.

In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex.2005). That contract need not be between the plaintiff and defendant; the rule applies equally to a “third party foreign to the original [agreement] but who benefited from its performance.” Pepi Corp. v. Galliford, 254 S.W.3d 457, 462 (Tex.App.2007) (internal quotation marks and citation omitted). Kama contends that before he became a BP employee in October 2009, he worked many hours for BP without reimbursement, and he seeks quantum meruit recovery for this work.

The contracts between Ideal and Kar-na’s companies, and between Ideal and BP, however, plainly bar his quantum meruit claim. On three occasions, Kama’s companies (or a company for which he worked) contracted with Ideal; Kama or his wife signed the agreements on behalf of the companies; each time, Kama’s services were specifically identified in the agreement. For years, Kama performed under these agreements. But now, Kama claims he was not a party to the agreements, and therefore can recover in quantum meruit.

He cannot have it both ways: he cannot receive payment for services performed under the contracts (as he did), then ignore them for tactical advantage. To put a label on it, Kama ratified the contracts. See Mo. Pac. R.R. Co. v. Lely Dev. Corp., 86 S.W.3d 787, 792-93 (Tex.App.2002). Once ratified, the contracts are enforceable against Kama and he cannot avoid their existence. See Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 547-48 (Tex. App.1999). It makes no difference that BP was not an express third-party beneficiary of the contracts between Kama’s companies and Ideal.

For the contracts to bar a quantum meruit claim, BP need only show that Kar-na’s efforts were undertaken for BP and that BP benefitted from the contracts’ performance. See Hester v. Friedkin Companies, Inc., 132 S.W.3d 100, 106-107 (Tex. App.2004). BP has done that. The district court, therefore, properly granted

summary judgment. III. ADMISSION OF EVIDENCE At trial, the district court admitted into evidence a chart showing BP employees’ salaries and pay grades. Kama objected, arguing that it was irrelevant. On appeal, Kama continues to assert his objection. Evidence is relevant if it has any tendency to make a material fact more or less probable. See Fed.R.Evid. 401(a)-(b). Under this standard, the chart Kama complains about is relevant. The jury was asked to decide whether Kama was a computer professional under the FLSA.

An employee is a computer professional if his primary duty involves statutorily defined tasks. 29 U.S.C. § 213(a)(17). The district court instructed the jury that one factor to consider is “the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.” ROA 3154. A chart showing the salary of other employees demonstrates this relationship, and thus could help the jury determine whether Kama is a computer professional. Accordingly, the district court did not abuse its discretion by admitting the exhibit.

CONCLUSION For these reasons, 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. . Kama also brought claims for breach of contract, fraudulent and negligent misrepresentation, and promissory estoppel, none of which are at issue here.