                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-1212


FRED SCHLEICHER, JR.,

                  Plaintiff - Appellant,

             v.

TA OPERATING CORPORATION; BRAD ERKSON,

                  Defendants - Appellees.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:06-cv-00133-FPS)


Submitted:    February 20, 2009             Decided:   March 23, 2009


Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ronald William Kasserman, KASSERMAN LAW OFFICES, PLLC, Wheeling,
West Virginia, for Appellant.      C. David Morrison, Jill O.
Florio, STEPTOE & JOHNSON PLLC, Clarksburg, West Virginia, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Fred    Schleicher,        Jr.   (“Schleicher”),       appeals     the

district court’s adverse grant of summary judgment, following

discovery, and dismissal of his civil action against his former

employer,     TA   Operating    Corporation        (“TA”)   and    Brad   Erkson

(“Erkson”), in which he alleged fraudulent inducement relative

to a job at which Schleicher worked for one day before quitting.

The facts surrounding the interview process and events leading

up   to   Schleicher’s   leaving       the   job   are   well     known   to   the

parties, were set forth in detail by the district court in its

memorandum opinion and order, and thus will not be recounted

here.     On appeal, Schleicher claims the district court erred in

its dismissal of his complaint on summary judgment, asserting

that there existed genuine issues of material fact concerning

the nature of his job title and/or duties and whether he would

have any weekends free to exercise visitation with his son.

            We review a district court’s grant of summary judgment

de novo, construing the facts in the light most favorable to the

nonmoving party.       Holland v. Washington Homes, Inc., 487 F.3d

208, 213 (4th Cir. 2007), cert. denied, 128 S. Ct. 955 (2008).

Summary    judgment   “should     be    rendered    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 judgment as a matter of law.”

                                         2
Fed. R. Civ. P. 56(c).             “[T]here is no issue for trial unless

there is sufficient evidence favoring the nonmoving party for a

jury to return a verdict for that party.                     If the evidence is

merely   colorable,    or     is   not     significantly     probative,      summary

judgment may be granted.”            Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249-50 (1986).           With these standards in mind, we have

reviewed    the    parties’    briefs       and     the   record,     and   find   no

reversible error.

            As a preliminary matter, the district court properly

held that, under West Virginia law, Schleicher was required to

prove his fraudulent inducement claim by clear and convincing

evidence.     See Tri-State Asphalt v. McDonough Co., 182 W. Va.

757, 762, 391 S.E.2d 907, 912 (1990) (quoting Calhoun County

Bank v. Ellison, 133 W. Va. 9, 54 S.E.2d 182 (1949)). 1                       It is

insufficient to establish fraud based on promissory statements

or statements of intention, and actionable representation must

constitute    more     than        “mere        broken    promises,     unfulfilled

predictions   or     expectations,         or    erroneous   conjectures      as   to

     1
       To prevail on a claim for fraudulent inducement under West
Virginia law, a plaintiff must show: “(1) that the act claimed
to be fraudulent was the act of the defendant or induced by him;
(2) that it was material and false; (3) that [the] plaintiff
relied upon it and was justified under the circumstances in
relying upon it; and (4) that [the plaintiff] was damaged
because he relied upon it.”    Lengyel v. Lint, 167 W. Va. 272,
276-77, 280 S.E.2d 66, 69 (1981). See also Kidd v. Mull, 215 W.
Va. 151, 156, 595 S.E.2d 308, 313 (2004).



                                           3
future events . . . even though a party acted in reliance on

such promise.”     Janssen v. Carolina Lumber Co., 137 W. Va. 561,

570, 73 S.E.2d 12, 17 (1953).           A presumption always exists in

favor of honesty and innocence in any given instance, and the

burden is on the individual alleging fraud to prove it by “clear

and distinct evidence.”      White v. National Steel Corp., 938 F.2d

474, 490 (4th Cir. 1991).

           While Schleicher takes issue with the title, duties,

and conditions of the position to which he was hired, none of

the acts of which he complains meet the essential elements for

fraudulent inducement under West Virginia law.            Specifically,

Schleicher admits that he was to report to the Jessup, Maryland

location   until   his   training   in    Virginia   began.   While   he

complains of the tasks he was given, the schedule he was to

work, and the lack of training he received on his first day of

work, he terminated his employment prior to anyone having the

opportunity to discuss his concerns with him, or to rectify any

misunderstandings or miscommunications that may have occurred.

The   evidence     reveals   that   a     multi-stage,    detailed    and

comprehensive General Manager training program lasting at least

two months was planned for Schleicher, which program had not yet

been communicated to Schleicher prior to his quitting his job.

           Schleicher also claims he was fraudulently induced to

accept a job other than the General Manager in training job he

                                    4
was   promised.       However,       the   evidence   demonstrates   that

Schleicher had, in fact, been hired as a General Manager in

training, as expressed in the employment offer letter he was

given by TA, that he was being compensated as such, and that the

training program for which he was scheduled was set up to train

him as a General Manager.           To support his claim of fraudulent

inducement, Schleicher points to the facts that Spencer, the

existing General Manager of the Jessup location, gave him menial

duties his first day and believed that he had been hired as her

assistant. 2      However,    the   evidence   demonstrates   that   these

actions were not directed by TA or Erkson, and Schleicher did

not discuss these concerns with Spencer or give Erkson or TA the

opportunity    to   rectify    Spencer’s    misunderstandings. 3      Such



      2
       As Schleicher was under the impression that he eventually
was going to be replacing Spencer as the General Manager of the
Jessup   location,   he  could   not   have   relied  upon   her
characterization of his job, his title, or the duties of his
employment to support any claim that he relied upon a material
and false act.
      3
        Schleicher admits he received and failed to return
Erkson’s return telephone call on what would have been
Schleicher’s second day of work, in which Erkson intended to
discuss with Schleicher the concerns he raised in his call to
Erkson the evening before.

     Moreover, while Schleicher contends that a legitimate
mistake does not negate a cause of action for fraud, citing Kidd
v. Mull, 215 W. Va. 151, 157, 595 S.E.2d 308, 314 (2004), a case
involving commercial real estate, Kidd, as well as the other
cases relied upon by Schleicher in his Appellate Brief, are
distinguishable because they involve commercial sales.   As this
(Continued)
                                      5
misunderstandings by Spencer do not establish fraud by TA or

Erkson. 4   See Janssen, 137 W. Va. at 570, 73 S.E.2d at 17.

             Further,    with    regard       to   the   fact    that    Spencer    had

prepared    a   schedule   for    Schleicher        that   had     him    working    on

Saturdays,      that   schedule    was    inconsistent          with    the   schedule

prepared by the training manager, and more importantly, was not

inconsistent with Erkson’s promise to Schleicher that TA would




court noted in White, where plaintiffs allege fraud by their
employers by failing to inform them of various material facts
affecting their employment, there is “no indication that West
Virginia would have [the Court] adopt a legal doctrine developed
in the context of commercial sales and apply it within
employment relationships in such a way that non-disclosure on
the part of an employer operates as constructive fraud and
disclosure operates as a binding unilateral contract.” White,
938 F.2d at 490.
     4
       Nor can Erkson’s hope to make Schleicher a “Co-General
Manager” at some indeterminable point in the future be said to
constitute fraud, as the district court correctly found.     The
record evidence established, though Schleicher’s own admissions,
that the subject of Schleicher being made a Co-General Manager
never came up in any of his discussions with Erkson prior to
September 19, 2005. Moreover, there is no dispute that, at the
time Erkson hired Schleicher, there was no such position as a
“Co-General Manager,” nor was there any program approved by TA
for placing two general managers in one location.         Hence,
Schleicher   cannot  establish   that  a   material  and   false
representation was made by Erkson relative to the Co-General
Manager title, especially given the fact that Schleicher
concedes that the first time he heard anything about the
possibility that there might be two General Managers at the
Jessup site was during his unemployment compensation hearing on
December 15, 2005, nearly three months after he left his job
with TA.



                                          6
“work with” Schleicher to allow him to have some free weekends. 5

Schleicher provided no evidence whatsoever that TA or Erkson

ever promised that he would have every weekend, any specific

weekend, or even the first weekend off from work so he could

visit his son.          Nor did the one day Schleicher worked provide

TA, Erkson, or even Spencer with the opportunity to “work with”

Schleicher on his schedule.

                 Hence, we find no error by the district court in its

determination that Schleicher failed to establish, by clear and

convincing evidence, that any of TA or Erkson’s actions were

intended to fraudulently induce Schleicher to accept the job

with the company.          As the district court held, what is clear is

that       the     parties     may    have    experienced      a      number    of

misunderstandings,           miscommunications,   and    confusion     regarding

Schleicher’s training and employment conditions, but these do

not constitute fraudulent inducement under the applicable law.

                 Accordingly, we affirm the district court’s grant of

summary judgment and the dismissal of Schleicher’s complaint.

We   dispense       with   oral   argument   because    the   facts    and   legal




       5
       This promise was included in the stipulation of facts
submitted to the district court prior to its ruling on the
summary judgment motion.



                                         7
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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