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                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-15504
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-00800-RWS



L. BRIAN ALEXANDER,

                                                Plaintiff - Appellee,

versus

AGILYSYS INC,

                                                Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (June 13, 2017)

Before HULL, WILSON, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Agilysys Inc. appeals the district court’s grant of summary judgment to its

former employee, L. Brian Alexander, on Alexander’s claim that Agilysys

breached his employment agreement by declining to pay Alexander severance after

his division was sold to another company. On appeal, Agilysys argues that the

district court incorrectly defined the word “termination” in the employment

agreement and alternatively improperly weighed competing evidence in

concluding that Alexander was owed severance pay. Because the latter argument

is meritorious, we reverse the district court’s grant of summary judgment to

Alexander and remand for proceedings consistent with this opinion.

                                I.      BACKGROUND

      Alexander started working at Agilysys in 2003 in its Retail Service Group

(“RSG”). By 2013, his title was Vice President of Service Delivery. In 2007,

Alexander and Agilysys entered into an employment agreement, paragraph 5.B of

which noted:

      Termination Without Cause. If your employment is terminated by
      Agilysys for any reason other than those identified in Paragraph 5.A,
      above, then you will be paid a severance . . . equal to one (1) year
      regular base and target incentive salary (if applicable), which will be
      at the rate applicable to you at the time your employment terminates
      and will be paid during regular pay intervals during the one (1) year
      period. . . . in case of termination without Cause, you will be eligible
      to continue to participate in applicable medical and dental coverage
      program(s) available to Agilysys employees for the duration of the
      Severance Period. You will not otherwise be eligible for severance
      under any Agilysys severance plan.


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Employment Agreement, Doc. 59-1 at 3. 1 Paragraph 5.A of the agreement noted

that “[i]f . . . you voluntarily resign your employment, then your salary will end on

the Termination Date.” Id. Agilysys presented the agreement—which was

materially identical to agreements presented to other employees in the Retail Sales

Group—to Alexander, who signed without making changes.

       The employment agreement permitted Agilysys to assign it to another

employer without Alexander’s consent:

       This agreement may be assigned by Agilysys, without your consent,
       to a third party (“Assignee”) in connection with the sale or transfer of
       all or substantially all of Agilysys’ business, or any division or unit
       thereof, whether by way of sale of stock, sale of assets, merger or
       other transaction. Such assignment by Agilysys will not constitute
       nor be deemed a termination of your employment by Agilysys, and
       will not give rise to any rights under Paragraph 5 of this Agreement.

Employment Agreement, Doc. 59-1 at 5-6.

       In 2012, Agilysys initiated a sale of the RSG. Alexander was involved in

the sale, traveling around the country to make presentations to potential buyers.

Alexander testified that the sale was largely for the current employees of the

group—specifically the management team, of which he was a part—rather than

any tangible assets. The RSG was eventually sold to Kyrus Solutions, Inc.

Although Alexander’s employment agreement was freely assignable, it was not

assigned to Kyrus in the sale. As part of the sale to Kyrus, Agilysys agreed that it

       1
          Citations to “Doc. __” refer to numbered docket entries in the district court record in
this case.
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would cooperate with Kyrus in its efforts to hire Agilysys’s employees. In doing

so, Agilysys offered Alexander a retention bonus if he agreed to remain with

Agilysys until the sale, which Alexander accepted.

      Agilysys circulated to its employees a question and answer document

concerning the sale of the RSG. In discussing whether there would be layoffs as a

result of the sale, the document noted: “Some Corporate positions will be

impacted. We have communicated with those employees whose job is affected as

a result of the sale. If you haven’t had a discussion with our manager then your job

is not impacted as a result of the sale.” Sale Q&A Sheet, Doc. 57-3 at 31. Though

Agilysys’s corporate representative testified that Alexander’s supervisor, Paul

Civils, was supposed to explain to Alexander the status of his employment

agreement after the sale, Civils explained that he was unaware that he had any such

responsibility. Alexander joined Kyrus upon completion of the sale, continuing in

roughly the same position that he held as Agilysys. According to Alexander, he

was “directed to” work for Kyrus by Agilysys. Alexander Dep., Doc. 54 at 43.

Nonetheless, Alexander refused to sign an employment agreement with Kyrus

because he was under the mistaken impression that his employment agreement

with Agilysys had been assigned to Kyrus.

      Alexander neither expressed interest in remaining with Agilysys after the

sale, nor did Agilysys offer him any such position. According to Agilysys’s


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corporate representative, had Alexander expressed an interest in staying, it would

have “led to a conversation to assess if there was an opportunity” for Alexander at

Agilysys. Seebeck Dep., Doc. 53-4 at 28. The representative further explained

that because Alexander was “very good at his job,” she “would have seen if there

was something we could have done” to keep Alexander at Agilysys. Id. at 71-72.

The representative testified that had Alexander indicated that he wanted to stay

with Agilysys, he would have at least been permitted to stay on for a limited period

of time under a Transition Services Agreement (“TSA”). Under the TSA,

Alexander would have remained an Agilysys employee for up to six months after

the sale of the RSG to Kyrus. Nonetheless, there is no indication that any Agilysys

employee ever told Alexander that remaining with Agilysys under the TSA was an

option.

      Alexander discovered information leading him to believe that the RSG

management’s employment contracts had not been assigned to Kyrus in the sale.

He subsequently filed suit against Agilysys for breach of contract, alleging that he

was entitled to severance pay under his employment agreement. The district court

granted summary judgment to Alexander. Agilysys now appeals.

                        II.    STANDARD OF REVIEW

      “This court reviews a district court’s grant of summary judgement de novo,

applying the same legal standards used by the district court.” Galvez v. Bruce, 552


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F.3d 1238, 1241 (11th Cir. 2008). We view the facts in the light most favorable to

the nonmoving party. See id. We must also draw “all reasonable inferences in

favor of the party opposing summary judgment.” Whatley v. CNA Ins. Cos., 189

F.3d 1310, 1313 (11th Cir. 1999). Summary judgment is appropriate when there is

“no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). Mere speculation is insufficient to

create a genuine issue of material fact. See Cordoba v. Dillard’s Inc., 419 F.3d

1169, 1181 (11th Cir. 2005).

                               III.   DISCUSSION

      The parties agree that Ohio law governs this dispute. “In a breach-of-

contract action, the plaintiff must show the existence of a contract, performance (or

readiness and willingness to perform) by the plaintiff, failure to perform by the

defendant, and damages.” Galmish v. Cicchini, 734 N.E.2d 782, 795 (Ohio 2000).

At issue on appeal is the district court’s determination on summary judgment that

Agilysys failed to perform pursuant to the employment agreement by refusing to

pay severance to Alexander.

      Agilysys makes two arguments on appeal. First, Agilysys asserts that the

district court misinterpreted the word “termination” in the employment agreement.

Second, Agilysys argues that even if the district court properly defined




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“termination,” it still erred by improperly weighing evidence to conclude that

Alexander did not voluntarily leave Agilysys. We address each argument in turn.

      Agilysys argues that the district court erred in finding that Alexander was

“terminated” within the meaning of the employment agreement. According to

Agilysys, “termination” means “the act of firing or dismissing someone,” or “the

act of making a person leave a job.” Appellant’s Br. at 6. Consequently, in

Agilysys’s view, it owes no severance to Alexander under the employment

agreement—under which severance payment is triggered if Alexander is

“terminated by Agilysys” without cause—because it did not “fire” Alexander in

the traditional sense, and Alexander suffered no lapse in employment. By contrast,

Alexander maintains that “termination” includes any separation between Agilysys

and Alexander, regardless of whether the separation is voluntary or involuntary on

Alexander’s part. The district court concluded that “termination” was ambiguous

and resolved the ambiguity in favor of Alexander.

      It is an “established principle of contract interpretation that [c]ontracts are to

be interpreted so as to carry out the intent of the parties, as that intent is evidenced

by the contractual language.” Lutz v. Chesapeake Appalachia, L.L.C., 71 N.E.3d

1010, 1012 (Ohio 2016) (internal quotation marks omitted). When the language of

a written contract is clear, a court may look no further than the writing itself to find

the intent of the parties. Westfield Ins. Co. v. Galatis, 797 N.E.2d 1256, 1261


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(Ohio 2003). We conclude that the district court correctly defined “termination”

under the employment agreement, but it erred in concluding that the term is

ambiguous.

      The four corners of the employment agreement demonstrate that the

meaning of “termination” is unambiguous and that it comports with Alexander’s

view that a termination refers to any separation between Alexander and Agilysys,

regardless of reason. “Termination” and its variations are used repeatedly

throughout the employment agreement. Paragraph 5.A of the employment

agreement is labeled “Termination for Cause and Voluntary Termination.” It

proceeds to list a number of reasons that Alexander’s employment might

“terminate,” including death, disability, legal incompetence, for cause by Agilysys,

and voluntary resignation. Employment Agreement, Doc. 59-1 at 3. A

“termination” is therefore broader than a traditional firing; indeed, it would be

nonsensical to say that an employee was fired by Agilysys where, in reality, the

employee died or voluntarily resigned. See Hope Acad. Broadway Campus v.

White Hat Mgmt., L.L.C., 46 N.E.3d 665, 674-75 (Ohio 2015) (counseling against

interpretation of a contract that would lead to a “result [that] is manifestly

absurd.”). Moreover, paragraph 6 of the employment agreement notes that

Alexander is obligated to return confidential information to Agilysys “upon

termination of [his] employment.” Under Agilysys’s interpretation of


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“termination,” Alexander would owe Agilysys its confidential information back

only if he were fired and not if, say, he voluntarily resigned and immediately

started working for a competitor. It seems dubious that this is what Agilysys

bargained for. Nor does the employment agreement give any indication that

“termination” means something different in paragraph 5.B—the provision at

issue—than it does in the rest of the contract. Consequently, it is unambiguous

that under the employment agreement, “termination” refers to any separation

between Alexander and Agilysys, regardless of the reason for the separation.

      The question then becomes: Was Alexander terminated “by Agilysys”—

such that he is owed severance, because the parties agree that his termination was

not for cause—or was his termination voluntary? The district court concluded that

because Agilysys sold the RSG to Kyrus, it “constructively terminated” Alexander

and therefore owed him severance. This was error.

      Viewing the facts in the light most favorable to—and drawing all inferences

in favor of—Agilysys, a reasonable jury could find that Alexander voluntarily left

Agilysys. The record contains evidence indicating that (1) Alexander was heavily

involved in the sale of the RSG to Kyrus, actively advertising the RSG

management team—himself included—to potential buyers; (2) Alexander never

expressed interest in remaining with Agilysys after the sale; (3) had Alexander

expressed interest in remaining at Agilysys after the sale, he would have had an


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opportunity to do so under the TSA at least for some period of time; (4) even

absent the TSA, Agilysys would have searched for a position for Alexander; and

(5) despite the question and answer leaflet indicating that employees would be told

if their job at Agilysys was affected by the sale of the RSG to Kyrus, no one at

Agilysys told Alexander that he would be laid off from Agilysys. This evidence

would permit a reasonable jury to infer that Alexander voluntarily terminated his

employment at Agilysys. 2

       Alexander argues that Bolling v. Clevepak Corp., 484 N.E.2d 1367 (Ohio Ct.

App. 1984), compels the conclusion that Alexander is entitled to severance pay

under the employment agreement. We disagree. In Bolling, employees of a box

plant sued their former employer, Clevepak, for severance after Clevepak sold the

plant to another company that continued to employ each of the plaintiffs. Id. at

1370-72. The Ohio Court of Appeals determined that the employees were owed

severance pay pursuant to Clevepak’s employee manual, under which a “separation

for reasons other than cause” triggered Clevepak’s severance obligation. Id. at

1371. In doing so, the court concluded that a “separation” triggered Clevepak’s


       2
         Alexander argues that the record lacks evidence that he would have been offered a
comparable position had he expressed interest in remaining at Agilysys. Alexander alternatively
argues that any position that Agilysys could have given him would also have triggered a
severance payment under a separate clause of the employment agreement. But the operative
question is not whether Alexander would have been entitled to severance in counterfactual
scenarios; the question is whether Alexander’s actual departure from Agilysys was voluntary.
That Alexander expressed no interest in remaining at Agilysys and made no effort to learn of
other opportunities there is evidence that his termination was voluntary.
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severance obligation and that Clevepak affected a separation by selling the plant.

Id. at 1376-77.

      Unlike this case, however, there was no assertion made in Bolling that the

employees’ separation from Clevepak was voluntary. Here, by contrast, there is

evidence supporting the conclusion that Alexander voluntarily left Agilysys for

Kyrus. We do not quibble with the idea that in many situations the sale of a

company or unit may trigger a severance obligation under an employment

agreement. But the operative question is whether that obligation was triggered

under the specific circumstances and employment agreement at issue here. Bolling

fails to answer that question. See also Bedinghaus v. Modern Graphic Arts, 15

F.3d 1027, 1030 (11th Cir. 1994) (holding that employees of a company sold to a

new owner were entitled to severance pay under a plan governed by ERISA where

“there [wa]s no genuine dispute that plaintiffs’ terminations were involuntary . . .

[because the plaintiffs] were to choose either resignation or employment with [the

purchaser]” (alteration omitted)). The record in this case supports two plausible

inferences: that Alexander’s termination was voluntary and that Alexander was

terminated by Agilysys without cause. The district court therefore erred in

granting summary judgment to Alexander. See Pioch v. IBEX Eng’g Servs., Inc.,

825 F.3d 1264, 1267 (11th Cir. 2016) (“If reasonable minds could differ on the

inferences arising from undisputed facts, then a court should deny summary


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judgment.” (internal quotation marks omitted)); see also Cook Indus., Inc. v. Cmty.

Grain, Inc., 614 F.2d 978, 980 (5th Cir. 1980) (“Although the interpretation of a

contract is normally a question of law for the Court, that interpretation frequently

depends heavily on the resolution of factual disputes. And it is the function of the

trier of fact to resolve such factual disputes.”). 3

                                   IV.    CONCLUSION

       For the foregoing reasons, we reverse district court’s grant of summary

judgment to Alexander and remand for proceedings consistent with this opinion.

       REVERSED AND REMANDED.




       3
         Decisions of the former Fifth Circuit rendered prior to close of business on September
30, 1981 are binding on this Court. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).
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