                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                        FILED
                      UNITED STATES COURT OF APPEALS               September 3, 2004
                           FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                           _______________________                        Clerk

                                 NO. 04-20092
                           _______________________

                            RANDALL M. THOMPSON,

                                                        Plaintiff-Appellant,

                                      versus

                           SYNTROLEUM CORPORATION,

                                                           Defendant-Appellee.



              Appeal from the United States District Court
                   for the Southern District of Texas
                       Civil Action No. H-02-4169


Before REAVLEY, JONES and DENNIS, Circuit Judges.

PER CURIAM:*

             Plaintiff-Appellant       Randall    M.   Thompson   ("Thompson")

filed    a   breach   of   contract    action    against   Defendant-Appellee

Syntroleum Corporation ("Syntroleum") for failure to pay severance

upon termination of Thompson’s employment.              On cross motions for

summary judgment, the district court granted Syntroleum’s motion,

and Thompson appealed.       At bar is whether the district court erred

in finding that no genuine issue of material fact existed as to




     *
            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opinion should not be published and is not precedent except under the limited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.
Thompson’s termination and that Syntroleum was entitled to judgment

as a matter of law.

          For the reasons stated below, we find that the district

court erred in granting Syntroleum’s motion for summary judgment.

Accordingly, we vacate the district court’s grant of summary

judgment and remand for further proceedings.

                          I.   Background

          Syntroleum   employed   Thompson   as   its   Chief   Financial

Officer from late 1996 through September 30, 2002.       The employment

contract at issue became effective on June 17, 1999.        In relevant

part, the employment contract provides the following:

          13.   Term and Termination
                (b) Employment or Employee under this Agree-
                ment may be terminated
                     . . .
                     (iv) by mutual agreement of Employee and
                     the Company.
                     . . .
                     (vi) by the Company for just cause at
                     any time upon written notice. . . .
                     (vii) by either the Company or Employee
                     upon 60 days written notice. . . .
                (d) If Employee’s employment is terminated
                pursuant to the terms of this agreement for
                any reason, Employee shall be entitled to all
                arrearage [] of salary and expenses up to and
                including the date of termination but shall
                not be entitled to further compensation.
                Provided, that if at any time after the first
                12 months from the date of the Original
                Employment Agreement, Employee’s employment is
                terminated by the Company for any reason other
                than Employee’s death, disability or retire-
                ment, the Company’s dissolution or just cause
                as provided in Paragraphs 13 (b) (i), (ii),
                (iii), (iv) or (v), respectively, Employee
                shall be entitled to and the Company shall pay


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                 Employee all arrearage [] of salary and
                 expenses up to and including the date of
                 termination and, in addition, Employee’s
                 monthly base salary for an additional period
                 of 24 months.

In   relevant   summary,   the    contract      provides       that    involuntary

termination of an employee without just cause entitles the employee

to severance, while voluntary resignation of an employee by mutual

agreement with the company divests an employee of the severance

entitlement.

            During his tenure with Syntroleum, Thompson principally

attended to the Sweetwater Project ("Sweetwater"), an initiative

involving   construction    of    a    plant    to   convert    natural      gas   to

liquids.    He worked primarily from his Houston, Texas home, making

weekly visits to Syntroleum’s headquarters in Tulsa, Oklahoma.

            In May 2002, Ken Agee ("Agee"), Chairman of Syntroleum’s

Board of Directors, asked Thompson to relocate to Syntroleum’s

headquarters.      When    Thompson      declined,     Agee     told     him    that

Syntroleum would terminate his employment for failure to relocate

and directed him to prepare a severance proposal.                Shortly there-

after, Agee changed his mind, told Thompson that Syntroleum would

continue his    employment,      and    said,    "Let’s   see    how    it     goes."

Thompson maintains that he construed the term "it" to refer to

Sweetwater and believed that his continued employment depended upon

the project’s success.

            On or about July 17, 2002, Agee told Thompson that he

would recommend that Syntroleum abandon Sweetwater.                       Thompson

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maintains     that   he   told      Agee       that   if     Syntroleum    abandoned

Sweetwater,    he    would    contact       human     resources      and   prepare   a

severance proposal, to which Agee said "OK."                   Thompson considered

Agee’s statement an affirmative acknowledgment that if Syntroleum

abandoned Sweetwater, it would also terminate his employment,

entitling him to severance.           Thompson submitted his own affidavit

recounting several interactions with Syntroleum’s human resources

director in furtherance of this understanding.

            Recounting a significantly different response, Syntroleum

maintains that Thompson told Agee that if Syntroleum abandoned

Sweetwater, he would quit and prepare a severance proposal, to

which Agee said "OK."         According to Syntroleum, Agee’s statement

was   an   acknowledgment       not    of      termination      by   Syntroleum      or

Thompson’s    entitlement      to     severance,       but    only   of    Thompson’s

voluntary decision to quit if Syntroleum abandoned Sweetwater.

Syntroleum submitted deposition testimony of four persons to whom

Thompson purportedly made similar statements regarding his intent

to quit.

            Syntroleum       eventually        abandoned      Sweetwater,     and    on

September 9, 2002, Syntroleum informed Thompson in writing that his

July 17 resignation was effective September 9, that the Compensa-

tion Committee denied Thompson’s request for severance, and that

Syntroleum would pay Thompson’s regular salary through Septem-

ber 30, 2002.



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                           II.    Discussion

           Upon reviewing the district court’s summary judgment

decision de novo and applying the same standards as that court,

Sholdra v. Chilmark Fin. L.L.P. (In re Sholdra), 249 F.3d 380, 382

(5th Cir. 2001), we find that the district court erred in granting

Syntroleum’s motion for summary judgment because genuine issues of

material   fact   determinative   of    Syntroleum’s    liability     are   in

dispute.

           Pursuant to   FEDERAL RULE    OF   CIVIL PROCEDURE   56,   summary

judgment is only appropriate when the movant demonstrates that no

genuine issue of material fact is in dispute and that it is

entitled to judgment as a matter of law.          Hunt v. Cromartie, 526

U.S. 541, 552, 119 S. Ct. 1545, 1551-52, 143 L. Ed. 2d 731 (1999);

FED. R. CIV. P. 56(c).   A fact is "material" if its resolution is

outcome determinative.     Ginsberg 1985 Real Estate P’ship v. Cadle

Co., 39 F.3d 528, 531 (5th Cir. 1994).          An issue is "genuine" if

the evidence is sufficient for a reasonable fact-finder to find in

favor of the non-movant.    Id.

           A court must view the evidence and all justifiable

inferences in the light most favorable to the non-movant, and may

not sit as a factfinder, i.e., weigh evidence or evaluate witness

credibility. Morris v. Covan Worldwide Moving, Inc., 144 F.3d 377,

380 (5th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255, 106 S.Ct. 2505, 2513 91 L.Ed.2d 202 (1986)).            While



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the issue of state of mind is not per se preclusive, summary

judgment on this issue is discouraged because intent is a question

of fact quintessentially within the province of the factfinder.

Sanders v. English, 950 F.2d 1152, 1164 (5th Cir. 1992); Int’l

Shortstop v. Rally’s, 939 F.2d 1257, 1263 (5th Cir. 1991); Hayden

v. First Nat’l Bank, 595 F.2d 994, 997 (5th Cir. 1979).

            All elements precluding summary judgment are present in

the instant case.         Thompson’s termination status - - - whether

Syntroleum involuntarily terminated him without just cause or

whether he voluntarily resigned - - - is a contested fact because

the   parties    advance    contradictory     positions     with    supporting

documentation.      The circumstance of Thompson’s termination is

material because it affects the applicability of the contract’s

severance    provision:        involuntary     termination      triggers     the

entitlement, voluntary resignation does not.          The issue is genuine

because    the   record    evidence   is    sufficient    for   a   reasonable

factfinder to reach the district court’s conclusion or to discredit

the evidence propounded by Syntroleum in favor of the evidence

presented by Thompson.         Resolution either way will require a

factfinder to credit deposition testimony and accord weight to the

parties’     competing     versions    of    the   facts.       Under      these

circumstances, the district court’s grant of summary judgment was

erroneous.

                              III.    CONCLUSION



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          For the reasons discussed above, the district court’s

grant of summary judgment is REVERSED, and the case is REMANDED for

further proceedings consistent with this opinion.

          REVERSED and REMANDED.




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