4:24-cv-02253•Davis v. DISA Global Solutions, Inc. et al
Texte intégral
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Marcus Davis, Plaintiff, v. DISA Global Solutions, Inc. et al., Defendant. § § § § § § § § § § § Civil Action No. 4:24-cv-02253 MEMORANDUM, RECOMMENDATION, AND ORDER Defendants DISA Global Solutions, Inc. and University MRO, LLC d/b/a University Services and University Services-MRO (“Defendants”) moved for summary judgment on Plaintiff Marcus Davis’s remaining claims. Dkt. 75. They also moved to strike certain evidence. Dkt. 85. After carefully reviewing the motions, Davis’s responses, Dkts. 83, 91, Defendants’ replies, Dkts. 84, 92, the record, and the applicable law, it is ordered that Defendants’ motion to strike be granted in part, and it is recommended that their motion for summary judgment be granted in full. Background I. Factual background The relevant facts are largely undisputed. Davis began working for Total Safety U.S., Inc. on January 6, 2022, as a turnaround technician, which United States District Court Southern District of Texas ENTERED July 17, 2026 Nathan Ochsner, Clerk Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 1 of 23
2 required him to inspect, maintain, and repair safety equipment. See Dkt. 83- 1 at 3 (Davis’s declaration). On March 10, 2022, he was offered a job with Clean Harbors Environmental Services, Inc. as an environmental technician. Dkt. 83-1 at 7-12 (offer letter). That offer was contingent on “[t]esting negative in a drug” test. Id. at 8. A. The substance abuse (“DCCHT”) policy Total Safety and Clean Harbors contract with DISA, “a third-party administrator of substance abuse policies ….” See Dkt. 75-1 at 4; Dkt. 75-1 at 33-37 (Master Services Agreement). DISA administers the DISA Contractors Consortium Hair Testing (“DCCHT”) policy, which is a substance abuse policy. Id. at 8-30 (DCCHT policy). According to that policy, DISA classifies employees as either “Active”—meaning they have complied with the DCCHT policy—or “Inactive”—meaning they have not. Id. at 10. The “Inactive” designation “does not imply use or abuse of substances.” Id. Employers have access to the “Active” or “Inactive” status classification, but not the drug test results. Id. Under the DCCHT policy, testing is conducted through hair samples, which may be collected at third-party facilities. See id. at 17. A laboratory tests the samples and sends DISA the results. Id. at 17-18. “Any confirmed presence of a substance in the sample results is a positive test.” Id. at 19. University MRO employs or contracts with medical review officers (“MROs”) to review positive results. See id. at 18; Dkt. 75-3 at 2 (declaration Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 2 of 23
3 of University MRO director). As the DDCHT policy explains, that review involves “speaking to the donor” of the sample. See Dkt. 75-1 at 18. Positive results “without acceptable medical explanations by a reviewing MRO will be noted as a confirmed positive test.” Id. “If the result is confirmed as positive, the donor will become ‘Inactive’ and subject to the rehabilitation requirements outlined in this policy.” Id. The DDCHT policy states that, if permitted by the employer, employees who test positive may request a re-confirmation of the original hair sample. See id. at 19. If that sample is insufficient for a re-confirmation test, employees can request a re-collection test within one week. See id. Otherwise, “the original test stands as the test of record ….” Id. Employees who fail a “pre-access test” or are “otherwise classified ‘Inactive,’ … shall be ineligible for entry onto” the employer’s work sites. See id. at 12. But a worker who becomes “Inactive” may undergo a “return-to-duty” process that entails completing a rehabilitation program. Dkt. 75-1 at 9; see also id. at 16, 20-22; Dkt. 75-2 at 47 (Davis’s testimony that “if you fail the drug test … the only way you’re going to be active again is if you do” the return-to- duty process).1 1 Citations to Davis’s deposition refer to the page number on the deposition transcript. All other filings are cited by the page number in the CM/ECF header. Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 3 of 23
4 Davis signed DISA’s Universal Membership Application, agreeing to “[a]bide by all program requirements” including “testing policies ….” Dkt. 75- 1 at 32 (Application); see also Dkt. 83-1 at 3. By signing the Application, Davis also authorized DISA “to release [his] drug and/or alcohol test results” to his employer and/or future employers whose offers were contingent on that test. See Dkt. 75-1 at 32. B. Davis’s March 28, 2022 drug test On March 28, 2022 Davis provided an arm hair sample at Global Health Consultants’s collection facility for a pre-access test. Dkt. 75-1 at 39 (chain of custody form), 44 (DISA Drug Test Result Certificate); see also Dkt. 75-2 at 17. His sample was then sent to Psychemedics Corporation for analysis. See Dkt. 75-1 at 39. It is undisputed that Davis’s sample yielded a positive result for methamphetamine. Dkt. 75-1 at 41 (laboratory data package), 44 (certificate). The lab results were released to DISA on March 30, 2022. Dkt. 75-1 at 42-43. That day, DISA updated Davis’s DCCHT status to “Temporary Inactive” in the DISAWorks platform, pending University MRO’s evaluation. See Dkt. 75-1 at 46 (status history on DISAWorks). Psychemedics sent Davis’s positive test to University MRO to confirm the result. See Dkt. 75-1 at 5; Dkt. 75-1 at 39 (chain of custody form). On April 2, 2022, MRO Jerome Cooper contacted Davis. Dkt. 75-1 at 44 (certification); Dkt. 75-3 at 16 (MRO worksheet). Cooper asked Davis questions to verify Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 4 of 23
5 whether there was a legitimate medical explanation for the result. See Dkt. 83-1 at 3; Dkt. 75-3 at 16. Davis denied taking methamphetamines or prescription medications, receiving care at an emergency room, undergoing surgery, or having any medical issues. See Dkt. 75-3 at 16. But Davis testified that he told Cooper that he “[m]aybe [] took some cold medicine” and that he “take[s] BC powders” and drinks “energy drinks a lot.” Dkt. 75-2 at 61-62 (deposition). Those comments were not included in Cooper’s MRO worksheet. See Dkt. 75-3 at 16-18. University MRO “verified” Davis’s result as positive on April 2, 2022. Id. at 17; see also id. at 19 (MRO contact log). DISA then updated Davis’s status as “Inactive” on DISAWorks. Dkt. 75-1 at 46 (status history), 44 (certifying that result was released electronically on April 2, 2022). On April 5, 2022 DISA representative Monica Sepulveda spoke with Davis about his test result. Dkt. 75-1 at 50 (DISA notes). Davis insisted that the result was a “false positive” and asked to be re-tested. See Dkt. 83 at 9; see also Dkt. 75-1 at 50; Dkt. 75-2 at 42. Sepulveda gave Davis two options: re- test the original hair sample taken on March 28, 2022 or participate in the return-to-duty process. See id.; see also Dkt. 75-2 at 74-75 (deposition). Davis elected to have his original sample re-tested. See id. But two days later, Psychemedics informed DISA “that that there was not enough of Plaintiff’s original sample to conduct reconfirmation testing.” Dkt. 75-1 at 5; see also Dkt. Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 5 of 23
6 75-2 at 42-43 (Davis’s deposition); Dkt. 75-1 at 54 (email). A re-analysis request form—which would allow Davis to submit another sample for testing— was sent on April 7, 2022 to Davis’s prospective employer, Clean Harbors. See Dkt. 75-1 at 61; Dkt. 83-1 at 7-12 (Clean Harbors offer letter). That request form had to be completed by April 8, 2022 at 12:00 PM. Dkt. 75-1 at 61. On April 18, 2022, Davis’s supervisor at Total Safety—where he was still employed—told him that “something happened with [Davis’s] Disa” and not to come to work. Dkt. 83-1 at 5, 27; see also Dkt. 75-2 at 43. The next day, Davis called DISA. See Dkt. 75-1 at 50. DISA then followed up with Clean Harbors but neither Clean Harbors nor DISA had ever sent the re-collection form to Davis. See id. at 58-59; see also Dkt. 83-1 at 180-81 (Davis’s deposition). At that point, the re-collection window had closed. Dkt. 75-1 at 6. Davis did not participate in the return-to-duty program. He maintains that he was “effectively fired” from Total Safety due to his positive drug test. Dkt. 83-1 at 5; see also Dkt. 75-2 at 43. Davis’s offer at Clean Harbors was also revoked. Dkt. 75-2 at 45-46; see also Dkt. 83-1 at 6. II. Procedural background Davis filed this suit in state court on March 21, 2023, and then amended his petition. Dkt. 1-2 at 7-20 (original petition), 61-84 (first amended petition). Defendants removed the case to this Court. Dkt. 1 (notice of removal). Davis filed a second amended complaint, alleging (1) a Fair Credit Reporting Act Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 6 of 23
7 (“FCRA”) claim against DISA, (2) a claim under 42 U.S.C. § 1981 against Total Safety and Clean Harbors, (3) fraud against DISA and University MRO, (4) tortious interference with business relations against DISA and University MRO, (5) negligent misrepresentation under Restatement (Second) of Torts § 552 against DISA and University MRO, (6) defamation against DISA, and (7) civil conspiracy against all defendants. Dkt. 20 at 13-27 Defendants filed motions to dismiss certain claims. See Dkts. 25, 26, 27. At the initial conference, this Court dismissed the Section 1981, fraud, tortious interference, and civil conspiracy claims. Dkt. 39 (minute order). Only the negligent misrepresentation, defamation, and FCRA claims against DISA and University MRO remain. See id. On October 29, 2025, this Court granted Defendants leave to file dispositive motions by November 24, 2025. Dkt. 73 at 2. Defendants filed a motion for summary judgment on the three remaining claims. Dkt. 75. Davis responded, Dkt. 83, and Defendants replied, Dkt. 84. The case was referred to the undersigned on December 9, 2025. Dkt. 76. DISA filed objections to some of Davis’s summary judgment evidence, Dkt. 85, to which Davis responded, Dkt. 91, and Defendants replied, Dkt. 92. The motion is ripe for resolution. Legal Standard Summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 7 of 23
8 as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Westfall v. Luna, 903 F.3d 534, 546 (5th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is material if the issue it addresses “could affect the outcome of the action.” Dyer v. Houston, 964 F.3d 374, 379-80 (5th Cir. 2020) (quoting Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010)). When resolving a motion for summary judgment, courts must view the facts and any reasonable inferences “in the light most favorable to the nonmoving party.” Amerisure Ins. Co. v. Navigators Ins. Co., 611 F.3d 299, 304 (5th Cir. 2010) (quotation omitted). “[T]he court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party ….” Union Pac. Res. Grp., Inc. v. Rhone-Poulenc, Inc., 247 F.3d 574, 584 (5th Cir. 2001). In addition, courts must credit all reasonable inferences from the evidence, without “weigh[ing] evidence or mak[ing] credibility findings.” Seigler v. Wal- Mart Stores Tex., LLC, 30 F.4th 472, 476 (5th Cir. 2022). But “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” Luna v. Davis, 59 F.4th 713, 715 (5th Cir. 2023) (per curiam) (quoting Brown v. City of Hous, 337 F.3d 539, 541 (5th Cir. 2003)). Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 8 of 23
9 Analysis Defendants move for summary judgment on Davis’s negligent misrepresentation, defamation, and FCRA claims. Dkt. 75. All three claims require proof that Defendants disseminated false or inaccurate information. Yet Defendants’ statements that Davis tested positive for methamphetamine were undisputably and objectively true, even if Davis denied using illegal drugs. That is fatal to Davis’s claims and, along with other defects, merits summary judgment for Defendants. I. Motion to strike evidence Defendants object to some of Davis’s summary judgment evidence. Dkt. 85. In support of his response, Davis attached a declaration made “under the penalty of perjury.” Dkt. 83-1 at 3-6. And as evidence of his “false positive,” Davis submitted (1) a negative test result from the April 11, 2022 drug test he elected to take, Dkt. 83-1 at 29, (2) negative tests results from urine drug tests he was required to take under the terms of his probation for a 2020 “Driving While Intoxicated” charge, id. at 31-32, and (3) three academic articles on drug testing, see id. at 147-69. The bulk of Defendants’ objections target Davis’s declaration. But the Court declines to address those objections because they have no bearing on the Court’s summary judgment analysis. Defendants’ objections to the lab test results and articles, however, are sustained. Those documents are stricken. Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 9 of 23
10 A. The laboratory test results are irrelevant. As summary judgment evidence, Davis attached the report from a drug test he sought at Quest Diagnostics laboratory. Dkt. 83-1 at 28-29. That report shows that the lab collected a leg hair sample from Davis on April 11, 2022, which yielded a negative result. Id. Davis also attached results from various urine drug tests he took throughout 2021 and 2022. See id. at 31-32. Defendants move to strike both exhibits. Dkt. 85. Defendants argue that the lab reports are unauthenticated hearsay. Dkt. 85 at 3. But as Davis asserts, the lab reports are capable of being authenticated at trial by a fact witness. See Dkt. 91 at 5-6; LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016) (“[M]aterials cited to support or dispute a fact need only be capable of being ‘presented in a form that would be admissible in evidence.’” (quoting Fed. R. Civ. P. 56(c)(2)). Further, the reports fall within a hearsay exception as records of a regularly conducted activity. See Fed. R. Evid. 803(6); see also Harris v. Browning-Ferris Indus. Chem. Servs., Inc., 635 F. Supp. 1202, 1210 n.25 (M.D. La.) (laboratory report admissible under Rule 803(6)), aff’d, 806 F.2d 259 (5th Cir. 1986). Defendants’ relevance objections, however, are sustained. See Dkt. 85 at 3. “Irrelevant evidence is not admissible.” Fed. R. Evid. 402. “Evidence is relevant if: [] it has any tendency to make a fact more or less probable than it Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 10 of 23
11 would be without the evidence; and [] the fact is of consequence in determining the action.” Fed. R. Evid. 401. Defendants assert that the April 11, 2022 lab report is irrelevant to the truth of his March 28, 2022 result, including because it contains different detection levels, uses hair collected from the leg rather than the arm, and cannot be verified as Davis’s. Dkt. 85 at 3. And they contend that the urine test results do not reflect the detection levels tested or which drugs they tested for, and are not otherwise comparable to the March 28, 2022 test which relied on a hair sample. See id.; Dkt. 92 at 4. Davis counters that the negative test results are relevant because they create a genuine dispute as to whether his March 28, 2022 test was a “false positive.” See Dkt. 91 at 5-6; see also Dkt. 83 at 4-5, 12. But whether the March 28, 2022 was indeed a “false positive” has no bearing on the core question posed by Davis’s claims: whether Defendants falsely or inaccurately reported the test result itself. Indeed, whether the test itself was accurate is not an element of any pending claim. See infra Parts II.A, III.A, IV. In addition, the results of different tests by different laboratories at different times are not relevant to the soundness of the March 28, 2022 test. Davis has not designated an expert to testify to the scientific comparability of the various test results such that they arguably shed any light on whether the March 28, 2022 result was a “false positive.” And Defendants raise fair Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 11 of 23
12 concerns about the differences between the tests. The lab results (Dkt. 83-1 at 28-29, 31-32) are stricken as irrelevant. B. The academic articles are inadmissible hearsay. Defendants also object to and move to strike three academic articles that Davis submitted (Dkts. 83-1 at 147-69), arguing that the articles are “hearsay intended to provide expert opinion when Plaintiff has no expert.” Dkt. 85 at 3. Defendants also challenge the articles’ relevance to Davis’s claims. See id. Exhibit 3 (Dkt. 83-1 at 147-58) is an article titled “The Truth Unveiled: Identifying the Most Common False Positive Drug Tests,” which was published on May 10, 2024 by Keystone Laboratories. Dkt. 83-3. Exhibit 4 (Dkt. 83-1 at 159-61) is the abstract from an article titled “Commonly prescribed medications and potential false-positive urine drug screens” published in 2010 by the American Journal for Health-System Pharmacy. And Exhibit 5 (Dkt. 83-1 at 162-69) is an excerpt from an article titled “Evaluation of amphetamines diffusion in hair after contact with amphetamines-containing blood” published in the March 2024 edition of Forensic Science International. Davis maintains that those articles are admissible under the “learned treatise” hearsay exception. Dkt. 91 at 6 (citing Fed. R. Evid. 803(18)). Under that exception, “[a] statement contained in a treatise, periodical, or pamphlet” is admissible “if: (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 12 of 23
13 and (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.” Fed. R. Evid. 803(18). But as Defendants rightly note, Davis “has no expert” who can opine on the articles’ reliability. Dkt. 85 at 3. And his window for designating such an expert expired long ago. See Dkt. 40 (February 6, 2025 deadline). Defendants’ hearsay objections are therefore sustained, and the articles are stricken. See Turner v. Phillips 66 Co., 2019 WL 1434659, at *7 (N.D. Okla. Mar. 29, 2019), aff’d, 791 F. App’x 699 (10th Cir. 2019) (plaintiff’s articles on “false positives” for amphetamines were “classic hearsay”). II. The negligent misrepresentation claim fails. On the merits, Defendants seek summary judgment on Davis’s negligent misrepresentation claim. This claim invokes the Restatement (Second) of Torts § 552, “which has been adopted by the Supreme Court of Texas.” Ironshore Eur. DAC v. Schiff Hardin, L.L.P., 912 F.3d 759, 762 (5th Cir. 2019); see Dkt. 20 at 23-26. Section 552 states: One who, in the course of his business, profession or employment, or in any transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. McCamish, Martin, Brown & Loeffler v. F.E. Appling Ints., 991 S.W.2d 787, 791 (Tex. 1999) (quoting Section 552(1)). Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 13 of 23
14 Defendants contend that they are entitled to summary judgment on the Section 552 claim because Davis cannot show that (1) they supplied false information, (2) Defendants failed to exercise reasonable care, or (3) that Davis justifiably relied on the communication regarding his positive drug test result. Dkt. 75 at 15-18. Davis failed to raise a genuine dispute over whether Defendants supplied false information. And even if he had, Davis undisputably did not rely on that information. They are correct on both fronts. A. Defendants did not supply false information. “To prevail on a claim of negligent misrepresentation, a plaintiff must show misrepresentation of an existing fact.” Smith v. JPMorgan Chase Bank, Nat. Ass’n, 2014 WL 6790749, at *6 (N.D. Tex. Dec. 2, 2014) (quoting Evans v. United Air Lines, Inc., 1995 WL 450203, at *2 (5th Cir. July 5, 1995) (per curiam)) (analyzing Section 552). Defendants argue that they made no misrepresentation because it is undisputed that Davis’s hair sample did test positive for methamphetamine, that DISA updated Davis’s work status correctly according to that result, and that University MRO verified that there was no medical explanation for that positive result. See Dkt. 75 at 15. Davis concedes that the “Inactive” status reflecting his positive result was “technically accurate.” Dkt. 83 at 13. But he asserts that the information was false or misleading because Defendants “essentially label[led] him as a drug user ….” See id. (citing FCRA cases). Texas courts have found that Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 14 of 23
15 certain misleading statements may support a negligent misrepresentation claim. Kersh v. UnitedHealthcare Ins. Co., 946 F. Supp. 2d 621, 640 (W.D. Tex. 2013) (collecting cases; rejecting “contention that Texas law would permit a defendant to escape liability for making an egregiously misleading statement on which he knew another would rely simply because in some narrow, technical sense the statement could be considered true”). But Davis has not provided evidence raising a genuine dispute over whether Defendants’ statements were false or misleading. Davis’s contention that Defendants “essentially label[led] him as a drug user” is unsupported. See Dkt. 83 at 13. The “Inactive” status classification is not reserved for “drug users”—it applies to any employee who “has not demonstrated compliance with the requirements of this policy ….” Dkt. 75-1 at 10. For example, an employee who refuses to take the test may be classified as “Inactive.” See id. at 11, 18. Conversely, a substance abuser who completes the return-to-duty program can become “Active” again. See id. at 20. Further, the DCCHT policy makes crystal clear that “[t]he designation of an ‘Active’ or ‘Inactive’ status does not imply use or abuse of substances.” Id. at 10. Nor can University MRO’s statement that it “verified” Davis’s positive result be construed as an assertion that Davis was a drug user. See Dkt. 75-3 at 17 (MRO worksheet); see also id. at 19 (MRO Contact log). Consistent with the DCCHT policy, University MRO only evaluated whether there was an Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 15 of 23
16 “acceptable medical explanation[]” for the positive test. See Dkt. 75-1 at 18, 25. Accordingly, MRO Cooper interviewed Davis, asked him questions related to possible medical explanations for the test, and found that no such explanation exists. See Dkt. 75-3 at 16. Davis’s disagreement with that evaluation does not make it a false statement. See Torrey v. Infectious Diseases Soc’y of Am., 86 F.4th 701, 704 (5th Cir. 2023) (rejecting negligent misrepresentation claim based on medical opinions). Because Davis has not shown that Defendants supplied false or misleading information, his negligent misrepresentation claim fails. See, e.g., K3C Inc. v. Bank of Am., N.A., 204 F. App’x 455, 462 (5th Cir. 2006) (per curiam) (rejecting negligent misrepresentation claim where plaintiff did not identify any statements “that were actually false” or “so incomplete as to be misleading”). B. Davis did not rely on that information. The negligent misrepresentation claim is also flawed because Davis did not rely on the information at issue. As Defendants contend, Davis “always disagreed with his positive result.” Dkt. 75 at 17. Indeed, it is undisputed that Davis has consistently challenged the result’s accuracy. See, e.g., Dkt. 75-2 at 18 (testifying that, when first told of the positive result, Davis “thought it was a joke” and insisted “that [] it has to be a mistake”); Dkt. 83-1 at 3 (stating that the positive “result was inaccurate”). Davis cannot show that he justifiably relied on information that he never believed and actively contested. See Est. Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 16 of 23
17 of Rashti v. Bank of Am. Nat’l Ass’n, 782 F. App’x 322, 327 (5th Cir. 2019) (per curiam) (plaintiff did not rely on misstatements; “[q]uite the contrary, the complaint makes clear that the Estate never accepted” the statements “and actively fought to correct” them). Davis’s argument that his employer justifiably relied on the information is irrelevant. See Dkt. 83 at 15. Davis—as the plaintiff—must be the one to have relied on Defendants’ statements to his detriment. See Dkt. 75 at 18 (citing Twin City Fire Ins. Co. Sliva v. Perma Pom LLC, 2024 WL 406775, at *2 (S.D. Tex. Feb. 2, 2024)); Great Am. Ins. Co. v. Chen, 2026 WL 1811481, at *2 (S.D. Tex. June 4, 2026) (rejecting negligent misrepresentation claim where plaintiff pleaded that “third parties,” not plaintiff, “relied on the allegedly false information … thereby causing [plaintiff] reputational and economic harm”), adopted by 2026 WL 1806750 (S.D. Tex. June 22, 2026). Davis also argues—for the first time in his response—that he relied on the misrepresentation that his hair would be re-tested. Compare Dkt. 83 at 15-16, with Dkt. 20 at 24 (no reference to that alleged misrepresentation in Davis’s live pleading). Davis’s failure to plead that theory would merit rejecting it. See Dkt. 84 at 2-3; cf. Hernandez v. U.S. Bank, N.A., 2014 WL 3545761, at *8 (N.D. Tex. July 17, 2014) (rejecting plaintiff’s reliance on “additional misrepresentations” raised in summary-judgment response that “were not pleaded as grounds” for a fraud claim). More fundamentally, though, Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 17 of 23
18 a promise to undertake future action is “not actionable as a negligent- misrepresentation tort.” Milton v. U.S. Bank Nat’l Ass’n, 508 F. App’x 326, 329 (5th Cir. 2013) (per curiam) (quotation omitted) (affirming dismissal of negligent misrepresentation claim premised on a promise to delay foreclosure pending processing of plaintiff’s loan modification application); First Bank v. Brumitt, 564 S.W.3d 491, 495 (Tex. App.—Houston 2018, no pet.) (negligent misrepresentation “does not encompass a duty not to make false promises of future conduct”). Defendants are entitled to summary judgment on the negligent misrepresentation claim. III. Davis cannot prove defamation. DISA also moves for summary judgment on Davis’s defamation claim. Under Texas law, the elements of defamation are: “(1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases.” In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015). But truth serves as a complete defense to Davis’s defamation claim. See Dkt. 75 at 18-19. Further, DISA is entitled to qualified privilege. See id. at 19-20. A. DISA established that its statement was true. DISA first contends that the defamation claim fails because its statement was true—Davis’s hair tested positive, resulting in his placement on “Inactive” status. Dkt. 75 at 18; see also Dkt. 75-1 at 44. ‘Truth is a complete Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 18 of 23
19 defense to defamation.” Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995); see also Washington v. Naylor Indus. Servs., Inc., 893 S.W.2d 309, 311 (Tex. App.—Houston [1st Dist.] 1990) (citing Randall’s Food, 891 S.W.2d at 646) (affirming dismissal of defamation claim because “the objective truth is that [plaintiff] tested positive” on the drug test). Yet Davis maintains that the “Inactive” status “was not substantially true” as it “indicated that [he] was a drug user ….” Dkt. 83 at 16. Davis relies on Houston Belt & Terminal Railway Company v. Wherry, 548 S.W.2d 743, 748 (Tex. App.—Houston [1st Dist.] 1976, writ ref’d n.r.e.), which upheld a jury’s finding that a defendant committed libel by falsely branding the plaintiff as a “drug addict.” See id. The Houston Belt case is wholly distinguishable. There, the defendant did not merely report a positive test result; he also stated that the drug detected (methadone) “was used usually in treating heroin addicts, to get them off of heroin”—thereby labeling plaintiff as a heroin user. Id. at 746. And the defendant made that statement despite receiving a report showing that the compound in plaintiff’s test was not, in fact, methadone or any prohibited drug. Id. at 748. Davis has presented no comparable evidence. DISA did no more than classify Davis as “Inactive,” without commentary. And the DCCHT policy makes clear that the “Inactive” designation “does not imply use or abuse of Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 19 of 23
20 substances.” Dkt. 75-1 at 10. In short, DISA’s statement—that Davis was “Inactive” under the DCCHT policy—was true. Davis’s defamation claim fails. B. DISA is entitled to qualified privilege. Another barrier to the defamation claim is DISA’s qualified privilege. Dkt. 75 at 19-20. “Under Texas law, qualified privilege is an affirmative defense against a defamation claim.” Smith v. Wal-Mart Stores, Inc., 980 F.3d 1060, 1063 (5th Cir. 2020) (citing French v. French, 385 S.W.3d 61, 73 (Tex. App.—Waco 2012, pet. denied)). “The publication of drug test results is protected by a qualified privilege.” Martinez v. DISA, Inc., 435 F. Supp. 3d 747, 753 (W.D. Tex. 2020) (citing Willis v. Roche Biomed. Labs., Inc., 61 F.3d 313, 316-17 (5th Cir. 1995) (granting summary judgment because DISA’s listing of plaintiff’s status in DISAWorks was protected by qualified privilege). Davis does not dispute that the privilege applies to the publication of his test results. Rather, he asserts that there is a genuine dispute as to whether DISA has acted with “actual malice,” which would defeat its privilege. Dkt. 83 at 17-18; see Duffy v. Leading Edge Prods., Inc., 44 F. 3d 308, 312 (5th Cir. 1995). “Actual malice” is “the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.” Brownlow v. Lab’y Corp. of Am., 254 F.3d 1081 (5th Cir. 2001) (quotations omitted). “‘Reckless disregard’ has been defined as a high degree of awareness of probable falsity that the plaintiff shows by presenting sufficient evidence to permit the Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 20 of 23
21 conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. An error in judgment is not enough.” Id. (quotation omitted) (affirming dismissal of defamation claim because defendant did not have “actual knowledge of the falsity of [plaintiff’s] test result”). Davis argues that DISA acted with reckless disregard for the truth because it did not re-test Davis and ignored his other negative tests. See Dkt. 83 at 18. But “[a] negligent failure to investigate the truth or falsity of a statement before publication, or a failure to act as a reasonably prudent person is insufficient to support a finding of malice.” Martinez, 435 F. Supp. 3d at 753 (quoting Frank v. Delta Airlines, Inc., 2001 WL 910386 *2 (N.D. Tex, Aug. 3, 2001)); see also Brownlow, 254 F.3d 1081 (defendant’s failure to properly clean the test vessels or meet other scientific testing standards was “insufficient to overcome a qualified privilege”). That aptly describes Davis’s contention. Qualified privilege further defeats Davis’s defamation claim. IV. The FCRA claim fails because DISA’s report was accurate. Lastly, Davis brought an FCRA claim, alleging that DISA failed to maintain “reasonable procedures to assure maximum possible accuracy” of its report, in violation of 15 U.S.C. § 1681e(b). See Dkt. 20 at 14-17. DISA moves for summary judgment on this claim because: (1) the information conveyed was accurate, (2) Davis did not raise a fact issue as to willfulness or negligence, (3) the “Inactive” status is not a consumer report, (4) DISA is not a consumer Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 21 of 23
22 reporting agency, (5) Davis consented to the reporting, and (6) DISA did not employ Davis. See Dkt. 75 at 20-26. Indeed, challenging DISA’s “inactive” status designation does not fit the usual FCRA mold. But even if the statute applied in this context, DISA’s “report” was not inaccurate. “In order to establish a prima facie case under § 1681e(b), a consumer must produce some evidence of an inaccuracy in her [] report.” Toliver v. Experian Info. Sols., Inc., 973 F. Supp. 2d 707, 715 (S.D. Tex. 2013); see also Washington v. CSC Credit Servs. Inc., 199 F.3d 263, 267 n.3 (5th Cir. 2000) (collecting cases noting that the inaccuracy of the report was an essential element of a Section 1681e claim). Unlike the defense of truth in a defamation claim, the burden of proving inaccuracy is on Davis. See Toliver, 973 F. Supp. 2d at 715 (granting summary judgment on Section 1681e claim because plaintiff “failed to establish a genuine issue of material fact as to” the report’s inaccuracy); see also Estrada v. Experian Info. Sols., Inc., 670 F. Supp. 3d 412, 419 (W.D. Tex. 2023) (collecting cases; “courts in this circuit” require “an actual inaccuracy to exist for a plaintiff to state” an FCRA claim). Davis has not raised a genuine dispute as to whether DISA’s “report” was accurate. It is undisputed that his drug test rendered a positive result, which was accurately reflected in the “Inactive” status report on DISAWorks. Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 22 of 23
23 And, as already noted, DISA’s policy explicitly states that an “Inactive” status “does not imply use or abuse of substances.” Dkt. 75-1 at 10. Summary judgment is warranted for DISA on the FCRA claim. Order and Recommendation For the foregoing reasons, it is ORDERED that Defendants DISA Global Solutions, Inc.’s and University MRO, LLC’s objections to summary- judgment evidence (Dkt. 85) are SUSTAINED IN PART as explained above. It is further RECOMMENDED that Defendants’ motion for summary judgment (Dkt. 75) be GRANTED, and that Plaintiff Marcus Davis’s claims be DISMISSED WITH PREJUDICE. The parties have fourteen days from service of this Report and Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to file timely objections will preclude appellate review of factual findings and legal conclusions, except for plain error. Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825 (5th Cir. 2015). Signed on July 17, 2026, at Houston, Texas. ______________________________ Yvonne Y. Ho United States Magistrate Judge Case 4:24-cv-02253 Document 93 Filed 07/17/26 in TXSD Page 23 of 23
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