                                                                               FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         June 15, 2010
                          UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                       TENTH CIRCUIT


 JEFFREY ABBOTT,

           Plaintiff - Appellant,
                                                              No. 09-3200
                                                    (D.C. No. 2:07-CV-02441-EFM)
 v.
                                                               (D. Kan.)
 BNSF RAILWAY COMPANY,

           Defendant - Appellee.


                                    ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, HOLLOWAY and HENRY, Circuit Judges.



       Plaintiff-Appellant Abbott brought suit in state court against his employer,

Defendant-Appellee BNSF Railway Company, alleging retaliatory discharge in violation

of public policy and breach of contract. Defendant removed the case to federal court

asserting diversity of citizenship and claiming federal question jurisdiction on the basis

that Plaintiff’s claims were pre-empted by the Federal Railroad Safety Act.1


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       1
       Complete diversity of citizenship appears to exist. Thus, we have no need to
address Defendant’s argument for removal jurisdiction based on its defense of
preemption.
       The federal district court granted Defendant’s motion to dismiss the claim for

wrongful discharge in violation of Kansas public policy, holding that claim was

preempted by the Federal Railroad Safety Act. A second order of the district court

granted Defendant’s motion for summary judgment on the breach of contract termination

claim. Plaintiff then brought this timely appeal.

                                               I

       Plaintiff began working for Defendant in 1979. In April 2006 he took the exempt

position of general director of railroad training services at Defendant’s technical training

center. Prior to that he had been a director of the training center. With the promotion to

general director, he took on responsibility for additional groups of employees.

       Also in April 2006, Mr. Abbott learned of an incident that involved a serious

breach of, at least, company policy and possibly a violation of law. An assistant vice-

president of BNSF had maintained his license as a railroad engineer. The license had to

be periodically renewed, and the vice-president needed to complete a certification test at

that time. The test – or a part of it, the record isn’t clear – involved a computer

simulation exercise. On a Sunday, another employee went into the office, covered the

lens of a security camera, and logged into a computer so that he could take the test for the

first employee.

       Although Mr. Abbott was not the first to learn of this incident, it was apparently

his report of the incident to his supervisor that resulted in it being reported to senior

officers of the company. The company investigated, and eventually the two employees

                                              -2-
admitted the deception. The vice-president was allowed to retire without any mention in

his personnel file of the improper behavior. The second employee’s position on the

salary schedule was lowered one grade, which did not impact his salary immediately but

did apparently have some effect on his total compensation.

       This incident of misconduct by others is significant in this appeal because Mr.

Abbott alleged in commencing his lawsuit against BNSF that he had been discharged in

retaliation for his role in bringing the incident to light.2 Whether the lawsuit can be

maintained on that premise is the second issue discussed infra.

       In August 2006, anonymous e-mails were sent to upper management complaining

about Mr. Abbott’s performance as general director. BNSF looked into the complaints,

conducting a “climate assessment” in September 2006. As a result of this assessment,

senior officials of BNSF learned that the staff of the technical training center appeared to

be split, with about seventy per cent supporting Mr. Abbott and the rest unhappy with his

performance.

       Mr. Abbott was in Ft. Worth on October 19, 2006, where he met with some senior

officials of BNSF. He was put on a 30-day plan for improvement. The parties dispute

whether he was told that his job was in jeopardy, i.e., whether he was in danger of being

fired, but even by Mr. Abbott’s account he realized that his position as general director


       2
        This case is rather unusual in that Mr. Abbott sues for wrongful discharge from
employment when in fact he is still employed by BNSF, as discussed in the text infra. At
times herein we may refer, as Mr. Abbott does, to his having been terminated or fired. As
the issues are presented to us, we need not be precise in describing the adverse
employment action.

                                             -3-
was in jeopardy and that he might be demoted if it was perceived that his performance did

not improve. The thirty-day plan was not put in writing.

       Mr. Abbott enrolled in a leadership class in an effort to improve his performance.

He also made an effort to repair relations with some of the employees that he knew were

displeased, including directly apologizing to one of them. Apparently Mr. Abbott’s

efforts were not enough to correct the situation, as he recognized that in December the

two groups remained divided.

       Abbott had received excellent performance reviews in positions he held prior to

the April 2006 promotion to general director of the technical training center. Mr.

Abbott’s immediate supervisor, Mr. Hobbs, evaluated Abbott’s performance as of the end

of 2006, and in January 2007 Abbott received that report. Mr. Hobbs, who seems to have

consistently been a supporter of Mr. Abbott, included several encouraging remarks in the

report, but the overall rating was “needs improvement.” In his comments, Mr. Hobbs said

that Mr. Abbott still had “our” support and “I am convinced you are the right person for

the job.” An employee who received a “needs improvement” rating at BNSF could be

placed on a performance improvement plan, but that did not happen in the case of Mr.

Abbott.

       On February 20, 2007, Mr. Abbott was notified that he was removed from the

general director position and could only remain employed with BNSF if he exercised his

seniority rights as a union member to claim a position as locomotive engineer. Mr.

Abbott took the option of staying with the railroad as an engineer. The position of


                                            -4-
locomotive engineer is an hourly, non-exempt position. As director, then general

director, of the training center Mr. Abbott had been in an exempt, salaried position.

                                             II

       Mr. Abbott raises two issues on appeal. He contends that the district court erred in

dismissing his claim of retaliatory discharge in violation of public policy and in granting

summary judgment for BNSF on his claim of breach of contract.

                                             A

       In his first claim for relief Mr. Abbott alleged that he had been discharged in

retaliation for having reported the misconduct of the two employees involved in the

licensing test incident and that discharging him for this reason was a violation of the

public policy of Kansas. The district court granted BNSF’s motion to dismiss this claim,

holding that the claim was preempted by the Federal Railroad Safety Act (FRSA), 49

U.S.C. §§ 20101 et seq. We review the district court’s holding de novo. See Thomas v.

National Ass’n of Letter Carriers, 225 F.3d 1149, 1157 (10th Cir. 2000).

       The FRSA includes protection for “whistle-blowers” and provides an

administrative remedy for employees who allege that they have been discharged or

otherwise punished in violation of that policy of protection. At the time of the events

involved in this appeal,3 that administrative remedy was exclusive, the district court held,


       3
         The current version of the FRSA does not preempt such state law claims. See 49
U.S.C. § 20109(g). In the district court, Abbott argued that the amended statute, which
does not preempt state law actions, should be applied retroactively to his claim. The
district court rejected that argument, and Abbott does not raise it on appeal. Therefore,
we apply the statute as it was at the time of Abbott’s discharge and consider only whether

                                             -5-
preempting any state law remedies, such as the one Abbott seeks here.

       Abbott makes a single argument in urging reversal of the district court’s

preemption ruling. He contends that Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246

(1994), holds that his claim is not preempted. In Hawaiian Airlines, the Court held that

an airline mechanic’s claim of wrongful discharge was not preempted by the Railway

Labor Act. Abbott argues that this holding under a different act applies here because all

disputes under the FRSA are subject to the administrative procedures of the Railway

Labor Act. See 49 U.S.C. § 20109(d).

       We are not persuaded. The FRSA adopts only the dispute resolution procedures of

the Railway Labor Act. The relevant section, as of the relevant time, provided in

pertinent part that a “dispute, grievance, or claim arising under this section is subject to

resolution under section 3 of the Railway Labor Act (45 U.S.C. § 153).” 49 U.S.C. §

20109(c) (2000). The preemption provisions of the Railway Labor Act are not mentioned,

much less incorporated, in the FRSA. Nor does Hawaiian Airlines provide any support

for the proposition that the scope of preemption is the same under the FRSA as under the

Railway Labor Act.

       The Supreme Court’s analysis in Hawaiian Airlines was centered on the question

whether the plaintiff employee’s claim in that case was a “minor dispute” under the

applicable collective bargaining agreement. The Court held that the employee’s state law

claim in that case was not preempted because he sought to enforce “rights and obligations


that earlier version of the statute preempted Abbott’s claim.

                                              -6-
that exist[ed] independent” of the applicable collective bargaining agreement. 512 U.S. at

260. The Court further noted that the preemption standard under the Railway Labor Act

was “virtually identical” to the standard that had been developed under the Labor

Management Relations Act. Id. And the purpose of preemption under those acts is to

ensure “that federal law will be the basis for interpreting collective-bargaining

agreements . . . .” Id. at 262 (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399, 409 (1988)).

       The Railway Labor Act and the FRSA have very different purposes. It is not

surprising, then, that the preemption provisions of the two acts were intended to operate

differently. Hawaiian Airlines simply provides no support for Abbott’s contention that

state-law wrongful discharge claims related to the policy of promoting railroad safety

were not preempted under the FRSA as it was in force at the relevant time.

       The issue apparently has not arisen frequently. The leading case, on which the

district court relied in granting BNSF’s motion, is Rayner v. Smirl, 873 F.2d 60, 65 (4th

Cir. 1989). Preemption is a question of congressional intent. Hawaiian Airlines, 512

U.S. at 252. The Rayner court noted that the FRSA (at that time and at times relevant to

Abbott’s appeal) had an express preemption provision in which Congress had declared

that “laws, rules, regulations, orders, and standards relating to railroad safety shall be

nationally uniform to the extent practicable.” Rayner, 873 F.2d at 65 (quoting 45 U.S.C.

§ 434 (1988)). Legislative history also revealed that Congress had concluded that railroad

safety could be best achieved by uniform standards. Id. The court accordingly concluded


                                              -7-
that state-law claims were preempted by the administrative remedy afforded under the

FRSA. We agree.

       We see no error in the analysis of Rayner and no error in the district court’s

application of it here. As we have already noted, Congress later decided not to preempt

state law claims like Abbott’s claim for wrongful discharge, so our holding will likely

have little effect in future cases. We conclude that the district court did not err in

dismissing the retaliation claim as preempted by federal law.

                                              B

       Plaintiff Abbott has also appealed from the district court’s grant of Defendant

BNSF’s motion for summary judgment on his claim of breach of contract. The district

court held that Abbott’s employment was at-will, leaving the employer free to terminate

the relationship at any time, for any reason or for no reason. Accordingly, the district

court held that Abbott could not prevail on the claim that his termination constituted a

breach of contract.

       “We review a grant of summary judgment de novo, applying the same standard as

the district court.” McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.

1998). Under Fed. R. Civ. P. 56(c)(2), summary judgment should be entered by the

district court “if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to a judgment as a matter of law.” On appeal,

       [w]e examine the record to determine whether any genuine issue of material
       fact was in dispute; if not, we determine whether the substantive law was

                                              -8-
       applied correctly, and in so doing we examine the factual record and
       reasonable inferences therefrom in the light most favorable to the party
       opposing the motion.

McKnight, 149 F.3d at 1128 (brackets and quotations omitted).

       Abbott did not have a written commitment from BNSF to employ him for any

length of time. Consequently, Abbott relies on an alleged implied contract.

       “Under the American common law an employer may discharge his ‘at-will

employee’ for good cause, for no cause, or even for a wrong cause, without incurring

liability to the employee for wrongful discharge.” Morriss v. Coleman Co., 738 P.2d 841,

846 (Kan. 1987).4 Kansas courts “[h]istorically” followed this doctrine. Id. at 847. Thus,

in the “absence of a contract, express or implied, . . . the employment is terminable at the

will of either party . . . .” Johnson v. National Beef Packing Co., 551 P.2d 779, 781 (Kan.

1976). Kansas does recognize that parties may bind themselves to a contract – the

implied-in-fact contract – without contractual formalities, and such contracts can be

formed in the employment relationship:

          The implied contract theory recognizes an implied obligation on the
       employer to not terminate an employee arbitrarily where a policy or
       program of the employer, either express or implied, restricts the employer’s
       right of termination at will. In essence, the employer is barred from


       4
       The statement quoted is a description of the traditional common law and not of
Kansas law at the time. As the court went on to mention, there has been “erosion of the
doctrine.” Morriss, 738 P.2d at 847. Thus, Kansas law now recognizes that some “wrong
reasons” for discharge violate Kansas public policy and will give rise to an action for
wrongful discharge. Abbott was relying on just such an exception in his claim that his
discharge violated Kansas policy that protects whistle blowers, as discussed supra. And
under Title VII, federal law prohibits discharges based on race, color, religion, sex, or
national origin. 42 U.S.C. § 2000e-2(a).

                                             -9-
       violating its own policies in discharging the employee.

Inscho v. Exide Corp., 33 P.3d 249, 253-54 (Kan. App. 2001).

       The implied contract theory on which Mr. Abbott relies here rests on mutual

intent. Morriss, 738 P.2d at 848. “The existence of an implied contract depends on the

intent of the parties, divined from the totality of the circumstances.” Anglemyer v.

Hamilton County Hospital, 58 F.3d 533, 537 (10th Cir. 1995).5 Intent

       is to be ascertained from several factors which include written or oral
       negotiations, the conduct of the parties from the commencement of the
       employment relationship, the usages of the business, the situation and
       objective of the parties giving rise to the relationship, the nature of the
       employment, and any other circumstances surrounding the employment
       relationship which would tend to explain or make clear the intention of the
       parties at the time said employment commenced.

Morriss v. Coleman Co., 738 P.2d 841, 848-49 (Kan. 1987).

       Whether the parties have created an implied contract is usually a question of fact,

but summary judgment is proper if the employee’s evidence shows only “his own

unilateral expectations of continued employment.” Warren v. City of Junction City, 176

F.Supp.2d 1118, 1126 (D. Kan. 2001). The employee must instead show evidence of

mutual intent to enter into an agreement which prohibited termination except for cause.

       We therefore must examine the evidence adduced by Abbott to support his claim

that BNSF had made an implicit promise not to terminate his employment arbitrarily.



       5
       Throughout this discussion, references to implied contracts are to contracts
implied in fact, as opposed to the quite distinct doctrine of quasi-contracts, also known as
contracts implied in law. See, e.g., Allegri v. Providence-St. Margaret Hlth. Ctr., 684
P.2d 1031, 1035 (Kan. Ct. App. 1984).

                                            -10-
When asked about this in his deposition, Abbott said that the railroad’s code of conduct

for salaried employees was part of his contract, along with his annual evaluations, his

expectations, his supervisor’s comments, his goals and directions, his promotions, and his

paycheck. II Aplt. App. 228. In his briefs on appeal, Abbott cites this testimony but

emphasizes BNSF’s practice of treating employees fairly and firing only for cause.

Abbott also relies on BNSF’s exempt discipline policy.

       The exempt discipline policy provides that a salaried employee who

       is not meeting overall expectations for the position, or demonstrates a
       specific skills deficiency or a specific attitude or non-constructive behavior,
       may be placed on a performance improvement plan. The company
       however, reserves the right to discipline or terminate an employee without a
       performance improvement plan, if approved by the Vice President of
       Human Resources/Medical.

III Aplt. App. 519. The exempt discipline policy concludes with this disclaimer: “This

policy, as well as all the policies herein, is not intended to imply a contract of

employment. Employment can be terminated, with or without cause, and with or without

notice, at any time, at the option of either the Company or the employee.” Id. at 520.

       The code of conduct similarly concludes with a disclaimer of any intent to enter

into a contract with the employees for other than at-will employment: “This Code of

Conduct is not a contract for services and does not alter the employment at will

relationship between BNSF and its employees.” Id. 501.

       Disclaimers such as these are not, in spite of their absolute terms, always

determinative of the question whether the employer intended to bind itself to an implied

contract under which the employee could only be fired for cause; they are not dispositive

                                             -11-
if there is evidence of contrary intent. See Morriss, 738 P.2d at 849; Brown v. United

Methodist Homes, 815 P.2d 72, 82-83 (Kan. 1991). But they are strong evidence that the

employer did not have such an intent, and especially where the evidence shows that the

employee has read the disclaimer. See Kastner v. Blue Cross and Blue Shield of Kan.,

Inc., 894 P.2d 909, 919 (Kan. App. 1995) (where plaintiff admitted reading a disclaimer

stating that the policies of the employee manual were not intended to create an implied

contract, the disclaimer was dispositive of the question of whether the employer intended

to form a contract with plaintiff); Henderson v. Montgomery County, 213 F.Supp.2d

1262, 1278 (D. Kan. 2002) (fact that plaintiff read the contents of employee handbook,

including the disclaimer language, “severely undercut” plaintiff's implied employment

contract).

       Here, Abbott testified that he had read the code of conduct, having signed a

statement that he had read it, and that he was familiar with the exempt discipline policy.

III Aplt. App. 574. He said that he did not specifically recall the disclaimers and that he

did not know what “employment at will” meant. In view of the fact that Abbott was

required to and did read and sign the disclaimer in the code of conduct, a reasonable juror

could only find that he was aware of at least one of the disclaimers. Moreover, the

disclaimer in the exempt discipline policy does not use the term “employment-at-will” but

explains it in everyday language (as quoted supra), These two documents with their

disclaimers thus support the position of BNSF that the employment was at will, rather

than Abbott’s position that an implied contract existed with other terms of employment.


                                            -12-
       We turn our focus next to the provisions of these documents that Abbott cites to

support his contention that his employment was something other than at will. In other

words, we must see if there is evidence of intent contrary to the disclaimers, evidence

which would make the disclaimers less than dispositive. Abbott emphasizes that the code

of conduct states that BNSF does business in an ethical manner and treats its employees

“honestly, loyally, in a trustworthy and fair manner . . . .” III Aplt. App. 476. He also

cites testimony from several high ranking employees of BNSF who all said that the

company tries to be fair with its employees.

       On its face, the contention that an employer’s statements to the effect of having a

policy of treating employees fairly is evidence that the employer intended to commit itself

to some employment term other than employment-at-will lacks logical force. We think it

common sense that an employer can treat at-will employees fairly. Abbott, however,

points to language from some cases that cite a commitment to a policy of fairness as

evidence of an implied contract of employment other than at-will. But close examination

of these cases shows that statements of intent to be fair standing alone are not sufficient to

create an issue of fact. As we review the cases, we are mindful that Abbott also relies on

testimony that the railroad only terminated employees for cause. These two factors,

representations of fairness and of terminating only for cause, are not discrete but are often

discussed together in the cases.

       Abbott relies on Brown v. United Methodist Homes, 815 P.2d 72 (Kan. 1991), and

particularly a statement from that case regarding the evidence necessary to show an


                                             -13-
employer’s “contrary intent,” that is, intent to form a relationship other than at-will. The

Brown court found evidence sufficient to create a jury question notwithstanding the

employer’s use of a disclaimer, Abbott contends, because there was testimony from

supervisory employees “indicating their intent to treat employees fairly and to follow the

rules.” 815 P.2d at 83. But there was also other evidence in Brown. In particular, the

employer in that case had added to the personnel manual language specifically

disclaiming any intent to enter into a contract with its employees, but that disclaimer had

been added after the plaintiff had begun working. This “presented questions” about

whether the disclaimer applied to Brown at all. Id. Moreover, the disclaimer in that case

was contradicted by a “stated policy . . . to treat all employees fairly in accordance with

Christian principles and not to discharge an employee ‘except for cause.’” Id. at 82.

       In this case, by contrast, the disclaimer was extant and brought to Abbott’s

attention, and there is no “stated policy” to discharge only for cause. Abbott nevertheless

contends that it was the policy of the railroad to fire only for cause, citing testimony of

some supervisory employees. This evidence is insufficient, however, to indicate that the

railroad had intentionally agreed with the employees that discharge would only be for

cause, a point we discuss further infra.

       Abbott also relies on Wilkinson v. Shoney’s, Inc., 4 P.3d 1149 (Kan. 2000). In that

case, a disclaimer much like the ones on which BNSF relies here was found insufficient

to mandate summary judgment for the employer on the former employee’s breach of

implied contract claim. The evidence in that case was, however, considerably stronger


                                             -14-
than the evidence produced by Abbott in the present case.

       In Wilkinson, the plaintiff “presented evidence of Shoney’s written policies of fair

treatment, progressive discipline, firing for cause, and of not holding past employment

problems against a rehired employee once the employee passed the Rehire Board.” 4

P.3d at 1163. The employer’s policies with respect to sexual harassment “contained step

discipline . . . with the fourth offense resulting in termination.” Id. Moreover, there was

evidence that “new employees were customarily introduced to these policies upon being

hired and were encouraged to read and re-read them in order to familiarize themselves

with the policies.” Id. Wilkinson himself had been in a managerial position and testified

that he had been “trained as a manager to make sure there is reason to terminate

someone.” Id. Thus, that case featured considerable evidence that could support a

finding that the employer’s intention was to enter into a relationship with the plaintiff that

was not employment-at-will.

       Abbott contends that it was universally believed at BNSF that employees were

only fired for cause. He cites deposition testimony of several supervisors and officers to

support his contention that everyone at BNSF – from all ranks – believed this to be the

case. In reply to the railroad’s point that some of the same supervisory employees

testified that the railroad could terminate for any reason or for no reason, even though it

typically did not happen, Abbott argues that this only shows that the issue is one that

should have been reserved for the jury.

       Abbott has produced no evidence, however, that his belief that he could only be


                                             -15-
fired for cause was formed at the time he assumed his position at the technical training

center. More importantly, however, this evidence simply does not have the dispositive

effect that Abbott claims for it. In Inscho, the employer’s human resources manager had

testified that he did not terminate employees arbitrarily, nor was he aware of any

employee who had been terminated for any reason other than violation of a company

policy. 33 P.3d at 251. In addition, the plaintiff in that case introduced evidence that the

employees “overwhelmingly believe they have job security as long as they perform their

job in a satisfactory manner.” Id. at 252. The appellate court nevertheless affirmed the

trial court’s grant of summary judgment in favor of the employer, holding that Ms. Inscho

had demonstrated “only a unilateral expectation of continued employment.” Id. at 253.

As for the manager’s testimony, the court said that this evidence that the employee “had

previously terminated employees only for violations of policy does not demonstrate an

intent by [the employer] that a violation was required prior to termination.” Id.

       As some courts have observed, to draw an inference that an employer had

committed itself to fire only on good cause in the future from evidence that it had

followed that practice in the past would create a perverse incentive for employers “to

occasionally fire employees for no other reason than to show that they maintain the

freedom to do so.” Taylor v. Home Depot USA, Inc., 506 F.Supp.2d 504, 519 (D. Kan.

2007) (quoting Burke v. BDM Technologies, Inc., 172 F.3d 62 (table), 1999 WL 40973, *




                                            -16-
3 (10th Cir. 1999)).6 We add that the same applies to Abbott’s claim that an expressed

policy of treating employees fairly should defeat summary judgment on an implied

contract claim. Courts should avoid creating an incentive for employers to treat

employees unfairly simply to establish that they have only entered into employment-at-

will relationships. Moreover, as to the fair treatment assertion, we think it simply

illogical because we see no inherent contradiction in treating employees fairly while

maintaining the right to terminate at will. When the relationship is entered into as one at-

will, there is not necessarily unfairness in treating it that way.

       It may not be possible to reconcile all of the cases in this area. In general,

however, we find that Abbott has relied on broad statements from cases that, on

examination, include significant facts that make those cases distinguishable from his. For

example, Abbott cites a statement from our court that “a general belief that the

[employer] only terminated its employees for cause” would “[t]ypically . . . be sufficient

to present a jury question of whether an implied contract of employment existed.”

Anglemyer v. Hamilton County Hospital, 58 F.3d 533, 538 (10th Cir. 1995). Abbott,

however, glosses over the pertinent facts of that case. There the employee presented

evidence that representations had been made to her and others by two administrators that

employees would only be fired for cause, despite the disclaimers in a new employee

handbook. And the employee in that case had repeated those representations in a meeting



       6
       Burke was, in turn, quoting from Hartbarger v. Frank Paxton Co., 857 P.2d 776,
785 (N.M. 1993).

                                              -17-
of the board of directors, none of whom contradicted the representation. 58 F.3d at 536.

         It was in this context that our court said that “this evidence” would typically be

sufficient to withstand a motion for summary judgment. Moreover, these statements were

dicta, because the plaintiff had not been terminated and our court decided the appeal on

other grounds. 58 F.3d at 538-40 (holding plaintiff, who had not been terminated but

only reassigned, did not have a property interest in her previous position to support a

claim under section 1983).

         Other arguments Abbott advances on appeal have no merit. Abbott contends that

the district court improperly made findings on certain points on disputed evidence, where

in considering the railroad’s motion for summary judgment the court should have noted

these disputes as questions for the jury and denied summary judgment. We conclude that

these points are not material to our analysis so that it is not necessary for us to resolve

them. First, Abbott complains that the district judge found that he had been warned in

October 2006 that he could be fired if his performance did not improve, even though

Abbott denied that he had been told this, thinking instead that, at worst, he might be

demoted one grade. But our conclusion that Abbott has not shown that the railroad had

bound itself to an implied contract of employment with him is not dependent on this

point.

         Similarly, Abbott cites as error the district court’s statement that Abbott’s

supervisor, Hobbs, had reluctantly agreed with the recommendations of Hobbs’ superiors

that Abbott be terminated. Again, this dispute is not material to the issue of the existence


                                              -18-
of an implied contract of employment.

       Abbott also complains that the district court found merely that the railroad

“generally” terminated employees only for cause and in citing testimony of “some”

supervisors that employment was at-will. Abbott contends that it should have been for

the jury to decide whether the railroad terminated only for cause. Because we find that

the railroad had clearly reserved the right to terminate employment for any reason, this

dispute, if it rises to that level, is also immaterial.

       Finally, Abbott asserts that the district court made a “critical” finding that the

exempt disciplinary policy was discretionary and that this was also a question that should

have been reserved for a jury. But the exempt discipline policy is discretionary on its

face, as we have already noted. That policy states, inter alia, that the railroad “reserves

the right to discipline or terminate an employee without a performance improvement plan,

if approved by the Vice President of Human Resources/Medical.” III Aplt. App. 519.

       This last point overlaps with another contention by Abbott. He points to

considerable conflicting evidence in the record as to whether his discipline was approved

by the designated officer. We think this controversy is quite beside the point. For

purposes of determining whether an implied contract existed, the key part of the sentence

quoted from the exempt discipline policy is that the railroad reserves the right to

terminate an employee without a progressive discipline plan. Because Abbott has not

adduced evidence to contradict this disclaimer, we hold that there was no implied

contract. The alleged failure to have the decision approved by the officer designated in


                                                -19-
the policy could only go to whether there was a breach of contract, after the existence of a

contract had been established. The company reserved the right to terminate Abbott’s

employment for any reason or no reason. He therefore could not have had a vested right

in having that decision made only by one specific officer in the company rather than

another.

                                            III

       For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                                               Entered for the Court

                                                               William J. Holloway, Jr.
                                                               Circuit Judge




                                            -20-
