                           UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT

                                 _________________________

                                        No. 01-60209
                                   SUMMARY CALENDAR
                                 _________________________

       FRANK ADAMIK; RICHARD ANGLADA; CHRISTIAN BAEHR; RACHEL
     BALDWIN; JAN BARTOS; CANDACE BERGIN; PAMELA BRUCE; CYNTHIA
      BURGES; CYNTHIA BYRD; CRISTIN CLARK; JESSIE COMBS, JR.; JOSEPH
     CURTIS; KURT DAU; MICHAEL DAVIS; PETE DONOVAN; DORIS FRAZIER;
      DENISE FRICKE; ROBERT GARY; DARRELL GUILLORY; CINDY NEIDER;
   ASHLEY MAXTED; CAMIELIA PHILLIPS; MATTHEW PHILLIPS; ROBERT PICOU;
   BEATRICE PONSON; RICHARD ROACH; STRACIE STROM; MARY VAN HOOSE;
     WILLIAM E. BALLARD; NATHANIEL BUSH; KAREN MOGELL; VICTORIA B.
           NGUYEN; GARY VAN PELT; KORBKUL TERESA WINTERS,

                                                                             Plaintiffs-Appellants,

                                               V.

                  MIRAGE RESORTS, INCORPORATED; BEAU RIVAGE,

                                                                           Defendants-Appellees.

______________________________________________________________________________

                 On Appeal from the United States District Court for the
                            Southern District of Mississippi
                         The Honorable Dan M. Russell, Jr.
                                 (1:99-CV-398-RG)
______________________________________________________________________________
                                  October 31, 2001

Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1


       1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

                                               -1-
       Defendant Beau Rivage owns and operates a hotel and casino in Biloxi, Mississippi. Beau

Rivage is a wholly owned subsidiary of GNLV Corp. GNLV Corp. is not a party to this action

but is a wholly owned subsidiary of Defendant Mirage Resorts, Inc. Plaintiffs are former

employees of Beau Rivage.

       Plaintiffs alleged that the termination of their employment breached an implied

employment contract between themselves and Defendants. Defendants claimed that Plaintiffs

were employed at-will and could be terminated at any time. Defendants filed a motion for

summary judgment, which the district court granted.

       Having reviewed the record and the briefs, we AFFIRM the district court's judgment

granting Defendants' motion for summary judgment based on the memorandum opinion and order

of the district court, which is attached hereto as Appendix A.




                                                -2-
                                         (APPENDIX A)

                       IN THE UNITED STATES DISTRICT COURT

                    FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

                                    SOUTHERN DIVISION




FRANK ADAMIK, et al.                             §                                   PLAINTIFFS

                                                 §

v.                                               §           1:99CV398RG

                                                 §

MIRAGE RESORTS, INC., et al.                     §                                DEFENDANTS



                  MEMORANDUM OPINION AND ORDER GRANTING

                 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT



       BEFORE THIS COURT is the Motion of the Defendants, Mirage Resorts, Inc.

(hereinafter referred to as "Mirage”), and Beau Rivage Resorts, Inc. (hereinafter referred to as

“Beau Rivage”), for Summary Judgment pursuant to FED. R. CIV. P. 56. Plaintiffs seek

compensatory and punitive damages from the Defendants based upon their contention that the

Defendants breached an implied contract of employment. According to the Defendants, the

Plaintiffs were employed at-will, and their employment could be terminated at any time. After

consideration of Defendants’ Motion, Plaintiffs’ Response, Defendants’ Rebuttal, the pleadings,


                                                -3-
affidavits, depositions, briefs and arguments of counsel and the relevant legal authority, it is the

opinion of the Court that Defendants’ Motion is well taken and should be granted.

                            FACTS AND PROCEDURAL HISTORY

       The Defendant “Beau Rivage owns and operates a hotel and casino in Biloxi,

Mississippi.” Defendants’ Memorandum Brief in Support of Their Motion for Summary

Judgment, p. 2. “The hotel and casino officially opened on March 15, 1999.” Defendants’

Brief, p. 2. In 1998, the Beau Rivage began accepting employment applications. The

employment applications signed by all applicants contained a certification which stated as

follows:

               I acknowledge and understand that, if employed by Beau Rivage, my
               employment is that of employment-at-will. My employment and all terms and
               conditions of that employment are for an indefinite duration and are at the
               absolute will and pleasure of Beau Rivage. If employed, I acknowledge and
               understand that the employee handbook and any other Beau Rivage or Beau
               Rivage-sponsored writings relating to the terms and conditions of my
               employment are unilateral policies, procedures, statements, explanations and
               instructions, and lack any mutuality whatever unless a written employment
               contract is executed by me and the President of Beau Rivage.

               I further acknowledge and understand that Beau Rivage has the unilateral
               right, at any time for any reason, to make changes in any such policies,
               instructions and procedures with or without notice. I further understand and
               acknowledge that Beau Rivage may take any action concerning my
               employment, including termination, with or without cause and with or without
               notice, at the sole and absolute discretion of the Beau Rivage. I further
               acknowledge and understand no person other than the President of Beau
               Rivage, whose agreement must be in writing, has any authority to enter into
               any agreement relating to my employment, to enter into any agreement for
               employment for a specific time or to make any agreement inconsistent with
               the foregoing.

Defendants’ Memorandum, pp. 2-3, quoting Certification, attached as Exhibit 1, Attachment

A-1, to Defendants’ Motion for Summary Judgment. Each applicant, by executing the


                                                  -4-
application, acknowledged that he or she had read and understood the certification. Upon

employment with Beau Rivage, each employee signed an acknowledgment form verifying

receipt of an employee handbook. The employee handbook contains a section which states

as follows:

              This Handbook and any subsequent revision or supplement is not, and should
              not be construed as an expressed or implied contract of employment. You are
              an employee-at-will. As such, you have the right to terminate your
              employment relationship with Beau Rivage at any time for any reason, with or
              without cause, and Beau Rivage reserves the right to do the same. This
              Handbook is meant only to provide general policy statements and is not
              intended to provide you with any promise or guarantee of any benefits that
              Beau Rivage may offer or procedures that Beau Rivage may utilize during
              your employment. Further, your employment-at-will relationship is not
              altered by any of the terms of this Handbook. No one employed by Beau
              Rivage or its subsidiaries is authorized to make an exception to this
              understanding, except the President of Beau Rivage, whose approval must be
              in writing.

Defendants’ Memorandum, pp. 3-4, quoting Employee Handbook, p. 3, attached as Exhibit 1,

Attachment A-2, to Defendants’ Motion for Summary Judgment.

       According to the Plaintiffs, they “began the application and interview process” at

Beau Rivage in late summer, early fall of 1998. Plaintiffs’ Memorandum, p. 2. “Because of

the tight labor market on the Mississippi Gulf Coast, high quality employees were at a

premium.” Plaintiffs’ Memorandum, p. 2. “To off set this fact, Doug Pool,” President of

Beau Rivage, “gave Rick Gianti, the Poker Room manager, the authority to promise

prospective employees immediate benefits, job security, choice scheduling and other fringe

benefits.” Plaintiffs’ Memorandum, p. 2. Prior to applying for positions with Beau Rivage,

all but two of the Plaintiffs were employed by other casinos. Because poker rooms at other

casinos in the area had closed, the Plaintiffs questioned Gianti about the viability of the Beau


                                              -5-
Rivage Poker Room. The Plaintiffs were concerned about leaving secure employment with

benefits for a new position at the Beau Rivage. “In response to these concerns Mr. Gianti

gave specific assurances to the Plaintiffs’ (sic) that Mirage Resorts ‘fully backed the Poker

Room and that they were in it for the long haul.’” Plaintiffs’ Memorandum, p. 3 (emphasis

in original).

       As noted above, because of a tight labor market in the area, Beau Rivage was

experiencing difficulty in hiring a sufficient number of employees prior to opening the

casino. “In response to intense pressures to have enough employees in place by opening day,

Doug Pool authorized Rick Gianti in the presence of Plaintiff, Camielia Phillips” (sic), to do

whatever it took to get the requisite number of Poker Room dealers in place.” Plaintiffs’

Memorandum, p. 5. Mr. Pool told Mr. Gianti “‘to get some of those Grand [Casino]

employees, and if you ha[ve] to pay them a bonus after three months or something, then so

be it.’” Plaintiffs’ Memorandum, p. 5, quoting Deposition of Douglas Pool, p. 37, attached

as Exhibit 6 to Plaintiffs’ Opposition. Two of the Poker Room employees hired by the Beau

Rivage were allowed to encourage Grand Casino poker dealers to leave their employment

with the Grand Casino for employment at the Beau Rivage. By early March 1999, the Beau

Rivage Poker Room had employed the requisite number of employees.

       Prior to the opening of the casino, Doug Pool and Barry Shier, Chief Executive

Officer of Beau Rivage, conducted several orientation meetings for the employees. At one

of the meetings, Pool “thanked the employees for their hard work and long hours” and

reassured the employees “that there would be ‘no layoffs’ and that the casino had purposely

under hired so as to assure no layoffs.” Plaintiffs’ Memorandum, p. 6.


                                              -6-
       The casino opened on March 15, 1999. Soon thereafter, the casino suffered

“operational problems.” Defendants’ Memorandum, p. 4. On May 26, 1999, Doug Pool

resigned, and Barry Shier assumed the responsibilities of President of the casino. In a

meeting on or about July 14, 1999, Shier informed Gianti that he had decided to close the

poker room. At a subsequent meeting, they agreed that the poker room employees would be

informed at a meeting a week or so later. On July 27, 1999, Shier informed the poker room

employees that the poker room was closing, effective immediately. He also informed them

that a job listing of the available jobs at the casino would be made available to them, along

with an interview sign-up sheet. There were 52 positions available at the casino. There were

63 poker room employees. According to Beau Rivage Employment Supervisor Tom Fudge,

“[t]he final disposition of all 63 Poker Room employees as of September 27, 1999, was as

follows:

              a. Eight employees transferred to other non-gaming jobs in the hotel or casino;

              b. Three employees were hired at other Mirage Resorts properties;

              c. Twenty-two employees became blackjack dealers; and

              d. Thirty employees departed the company.

Affidavit of Tom Fudge, p. 4, attached as Exhibit 1 to Defendants’ Motion for Summary

Judgment.

       The complaint in this cause “was filed on September 16, 1999 by twenty-eight (28)

former Beau Rivage employees (‘Plaintiffs’), whose positions in the Poker Room were

eliminated . . . when the Poker Room was closed.” Plaintiffs’ Memorandum in Opposition

to Defendants’ Motion for Summary Judgement, p. 1. Since the filing of the complaint,


                                              -7-
“three (3) Plaintiffs have dismissed their claims and six (6) Plaintiff have joined the suit for a

total of thirty-one (31) Plaintiffs.” Plaintiffs’ Memorandum, p. 1. According to the

Plaintiffs, the Defendants breached an implied contract of employment with them when the

Defendants closed the Poker Room. The Defendants contend, however, that no implied

contract of employment existed, and instead the Plaintiffs were at-will employees.

                                         DISCUSSION

        Summary judgment is appropriate where no genuine issue of material fact remains to

be decided and the moving party is entitled to judgment as a matter of law. “Rule 56(c)

mandates the entry of summary judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient to establish the existence of

an element essential to that party's case, and on which that party will bear the burden of proof

at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265

(1986). In deciding a motion for summary judgment, the Court must consider "whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477

U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). Rule 56(e) provides in

part:

        When a motion for summary judgment is made and supported as provided by
        this rule, an adverse party may not rest upon the mere allegations or denials of
        the adverse party's pleadings, but the adverse party's response, by affidavits or
        as otherwise provided in this rule, must set forth specific facts showing that
        there is a genuine issue for trial. If the adverse party does not so respond,
        summary judgment, if appropriate, shall be entered against the adverse party.

FED. R. CIV. P. 56 (e). Thus, when a motion for summary judgment is filed and is



                                               -8-
accompanied by competent supporting evidence, a court may grant the motion if the

opposing party fails to present controverting evidence. FED. R. CIV. P. 56 (e). Summary

judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir.), cert. denied, 506 U.S. 973, 113 S.

Ct. 462, 121 L. Ed. 2d 371 (1992).

       If the movant meets his burden by proving the absence of a genuine issue of material

fact, then “the nonmovant must go beyond the pleadings and designate specific facts

showing that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994), citing Celotex, 477 U. S. at 325, 106 S. Ct. at 2553-54. The nonmovant

cannot discharge this burden by referring to the mere allegations or denials of the nonmoving

party's pleadings; rather, the nonmovant must, either by submitting opposing evidentiary

documents or by referring to evidentiary documents already in the record, set out specific

facts showing that a genuine issue as to a material fact exists. See Celotex Corp. v. Catrett, 477

U.S. at 324, 106 S.Ct. at 2553; Reese v. Anderson, 926 F.2d 494, 498 (5th Cir. 1991); FED. R.

CIV. P. 56(e). If the nonmovant fails to present evidence showing that a genuine issue of

material fact exists, then “the motion for summary judgment must be granted.” Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

BREACH OF IMPLIED CONTRACT OF EMPLOYMENT:

       The Plaintiffs contend that Gianti, on behalf of Beau Rivage, aggressively recruited

them, and assured them that the casino was “100% behind Poker.” Plaintiffs’ Memorandum


                                               -9-
in Opposition, p. 16. As noted above, Gianti was authorized to offer bonuses, “or whatever

it takes,” to hire the requisite number of employees prior to opening day. According to the

Plaintiffs, “[t]he nature and quality of the statements made by Mr. Gianti were so numerous

and so specific as to create an implied contract of employment.” Plaintiffs’ Memorandum in

Opposition, p. 16. The Plaintiffs claim that their implied contract of employment was

breached when the Beau Rivage closed the Poker Room. In support of their position, the

Plaintiffs offer oral representations made by Rick Gianti and Doug Pool of secure

employment with no layoffs. According to the Plaintiffs, these oral representations formed

implied contracts of employment between the Plaintiffs and Beau Rivage. The Plaintiffs

also claim that the express statements regarding at-will employment in the application and

handbook were not conspicuous and thus did not negate the oral representations by Gianti

and Pool.

       The Defendants claim that no such contract was created. According to the

Defendants, each prospective employee signed a certification prior to interviewing for

employment that his or her employment “would be at-will, for an indefinite period of time,

and that termination without cause or notice could be effected in the sole discretion of Beau

Rivage.” Defendants’ Memorandum, p. 14. In addition, each prospective employee

acknowledged in writing that he or she understood that “only the President of Beau Rivage

had authority to make a contract of employment with Beau Rivage, which contract had to be

in writing.” Defendants’ Memorandum, p. 14. Moreover, upon employment with Beau

Rivage, each employee received an Employee Handbook which provided “(a) that all

employees were employed at-will; (2) that they were subject to discharge for any reason with


                                             -10-
or without cause; and (3) that the at-will nature of their employment relationship could not

be altered without the written approval of the President of Beau Rivage.” Defendants’

Memorandum, p. 15. The Defendants further contend that no oral representations regarding

secure employment were made. Even assuming representations were made regarding

employment, the “express, written at-will disclaimers” in the application and in the

handbook negated any implied contract of employment.

       It is well settled in Mississippi that when no employment contract exists between the

employer and employee, then the employment is at-will and as such may be terminated at the

will of either party, for a good reason, a wrong reason, or no reason at all. Solomon v.

Walgreen Co., 975 F. 2d 1086, 1089 (5th Cir. 1992), citing Perry v. Sears, Roebuck & Co., 508

So. 2d 1086, 1088 (Miss. 1987) & Kelly v. Mississippi Valley Gas Co., 397 So. 2d 874, 874-75

(Miss. 1981). “Mississippi has rigidly adhered to this rule since 1858.” Solomon v. Walgreen

Co., 975 F. 2d at 1089 (citations omitted). In addition, an express, written statement that

employment is at-will will defeat a claim that an implied contract of employment existed.

Perry v. Sears, Roebuck & Co., 508 So.2d 1086, 1089-90 (Miss. 1987).

       The employment application signed by all of the Plaintiffs explicitly stated that

employment “would be at-will, for an indefinite period of time, and that termination without

cause or notice could be effected,” and that only the President of the casino could enter into a

contract of employment, and such contract had to be in writing. Defendants’ Memorandum,

p. 14. In addition, each of the Plaintiffs received an employee handbook which reiterated

that they were all employed at-will, and “were subject to discharge for any reason with or

without cause,” and that only the President of the casino could alter the at-will nature of the


                                              -11-
employment by written approval. Defendants’ Memorandum, p. 15. The application and

handbook clearly and expressly stated that employment was at-will. Moreover, the

application and handbook clearly and expressly stated that only the President of the casino

could enter into an employment contract, and even then, such contract had to be in writing.

As noted by the Mississippi Supreme Court, to hold that “a valid, express agreement and a

contradictory implied agreement can exist concerning the same subject matter at the same

time” is “ludicrous.” Perry, 508 So.2d at 1088. The Court is not aware of any case applying

Mississippi law which conditions effectiveness of an at-will disclaimer upon

conspicuousness. Having reviewed the evidence in this case, the undersigned is of the

opinion that no implied contract of employment existed between the Plaintiffs and the

Defendants. For this reason, the Court is of the opinion that Defendants’ Motion for

Summary Judgment should be granted with regard to Plaintiffs’ claims of breach of implied

contract.

ESTOPPEL CLAIMS:

       The Plaintiffs also claim that they had an enforceable implied contract of employment

based upon equitable and promissory estoppel. The Plaintiffs contend that they relied upon

the representations made by Gianti and Pool regarding secure employment with no layoffs to

their detriment. To enable them to work at the Beau Rivage, the Plaintiffs left secure

employment with benefits and seniority for employment at the Beau Rivage Poker Room,

which ultimately, according to the Plaintiffs, proved not to be secure when the Poker Room

was closed on July 26, 1999. The Plaintiffs claim that their implied contract of employment was

breached when the Beau Rivage closed the Poker Room.


                                             -12-
       The Defendants counter that any reliance upon alleged statements and representations

by Gianti and Pool would have been unreasonable in light of the specific, express language

in the application and handbook to the effect that employment would be at-will and that only

the President of the casino could enter into a contract of employment, such contract to be in

writing. The Defendants also contend that with regard to the detriment suffered by the

Plaintiffs, “[t]he Mississippi Supreme Court has consistently refused to recognize

relinquishment of prior employment as sufficient detriment to invoke an estoppel theory in

the at-will employment context.” Defendants’ Memorandum, pp. 17-18, citing Bowers

Window & Door Co. v. Dearman, 549 So.2d 1309, 1315 (Miss. 1989);. Moreover, the

Defendants note that “[t]he Fifth Circuit has reached the same conclusion even in a situation

where the claimant relinquished prior employment and relocated over a long distance to

accept a job.” Defendants’ Memorandum, p. 18, citing Soloman v. Walgreen Co., 975 F.2d

1086, 1091-92 (5th Cir. 1992). In further support of their position, the Defendants cite

Dubard v. Biloxi H.M.A., Inc. d/b/a Biloxi Regional Medical Center, 2000 WL 769625 (Miss.

2000), a recent case in which the Supreme Court of Mississippi “reaffirmed its holding in

Dearman and cited with approval the Fifth Circuit’s holding in Soloman.” Defendants’

Memorandum, p. 18. For this reason, according to the Defendants, even if the Plaintiffs

could show reasonable reliance, they are unable to show legal detriment, which is necessary

“to sustain their estoppel theory.” Defendants’ Memorandum, p. 19.

       “A party asserting equitable estoppel must show (1) belief and reliance on some

representation; (2) change of position as a result thereof; and (3) detriment or prejudice caused by

the change of position.” Cothern v. Vickers, Inc., 759 So.2d 1241, 1249 (Miss. 2000), citing


                                                -13-
Covington County v. Page, 456 So.2d 739, 741 (Miss.1984); PMZ Oil Co. v. Lucroy, 449 So.2d

201, 206 (Miss.1984); Resolute Ins. Co. v. State, 290 So.2d 599, 602 (Miss.1974). “Promissory

estoppel requires (1) a promise; (2) that induces action of a definite or substantial character on the

part of the promisee; and (3) that the promisor reasonably should have expected the promisee’s

action.” Solomon v. Walgreen Co., 975 F.2d 1086, 1091 (5th Cir. 1992), citing Sanders v.

Dantzler, 375 So.2d 774, 776-77 (Miss. 1979). Promissory estoppel, like equitable estoppel, also

“requires proof of detrimental reliance.” Southern Mortgage Co. v. O’dom, 699 F. Supp. 1227,

1230 (S.D. Miss. 1988), citing PMZ Oil Co. v. Lucroy, 449 So.2d 201, 206 (Miss. 1984).

       The Mississippi Supreme Court has held the following regarding the required element of

detriment or prejudice caused by the change of position necessary for an estoppel claim:

       “Courts have generally found that the mere detriment furnished by an employee in leaving
       one position and taking another does not constitute sufficient consideration []” to alter an
       employment-at-will contract. Tracy A. Bateman, Annotation, Employer’s State-Law
       Liability for Withdrawing, or Substantially Altering, Job Offer for Indefinite Period Before
       Employee Actually Commences Employment, 1 A.L.R. 5th 401, 408 (1992) (footnote
       omitted). This court has acknowledged the majority rule that “the termination of existing
       employment in reliance on an oral contract of employment, even for better pay, is only a
       necessary incident of being in the labor market. . . .” Bowers Window & Door Co. v.
       Dearman, 549 So.2d 1309, 1315 (Miss. 1989). The Fifth Circuit has also applied this rule
       where a prospective employee relocated in reliance on a purported offer of employment.
       Solomon v. Walgreen Co., 975 F.2d 1086, 1091-92 (5th Cir. 1992). Dubard’s termination
       of his employment in Grenada and his relocation to Biloxi were insufficient to show that
       he relied on the employment offer to his detriment.

Dubard v. Biloxi H.M.A., Inc., 2000 WL 769625, at *1 (Miss. June 15, 2000). This Court agrees

with the Defendants, and finds that the termination of prior employment by the Plaintiffs for a

position at the Beau Rivage, even coupled with the loss of benefits, security, and seniority with

the prior employment, is insufficient detriment necessary to satisfy the requirements of equitable

and promissory estoppel. Therefore, assuming that the Plaintiffs could establish the remaining


                                                -14-
requisite elements, the Plaintiffs are unable to establish the element of detriment caused by a

change in position. Because the Court finds that the Plaintiffs are unable to establish the

detriment element, the Court need not address the remaining elements. For this reason, the Court

is of the opinion that no genuine issues of fact remain on the claims of equitable and promissory

estoppel to enforce an implied contract of employment. The Defendants are therefore entitled to

judgment as a matter of law.

                                          CONCLUSION

       Defendants have demonstrated that there exists no genuine issue of material fact with

regard to the claims of breach of implied contract of employment, and enforcement of an

implied contract of employment based upon equitable and promissory estoppel.

Accordingly, the Defendants are entitled to Judgment as a Matter of Law.

       IT IS THEREFORE ORDERED AND ADJUDGED, that the Motion of Defendant

Beau Rivage and Defendant Mirage for Summary Judgment pursuant to FED. R. CIV. P.

56(c), should be, and is hereby GRANTED.

       SO ORDERED AND ADJUDGED, this the                        of January, 2001.




                                              DAN M. RUSSELL, JR.
                                              U. S. DISTRICT JUDGE




                                                -15-
