Davis v. DISA Global Solutions, Inc. et al

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.
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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
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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
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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.
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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
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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.
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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
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(“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
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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)).
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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.
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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
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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
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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;
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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)).
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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
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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
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“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.
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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,
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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
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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
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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
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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
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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.
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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
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