UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALLAN R. SCHOENBERG,
Plaintiff-Appellant,

v.
                                                               No. 97-2589
E. I. DUPONT DE NEMOURS &
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-97-109-1)

Submitted: June 16, 1998

Decided: June 29, 1998

Before LUTTIG and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert J. Deutsch, POWELL & DEUTSCH, Asheville, North Caro-
lina, for Appellant. Ronald G. Polly, Jr., MCCULLOUGH SHER-
RILL, Atlanta, Georgia; Raymond Michael Ripple, Donna L.
Goodman, E.I. DUPONT DE NEMOURS & COMPANY, Wilming-
ton, Delaware, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Allan R. Schoenberg appeals the district court's order granting
summary judgment to E. I. du Pont de Nemours & Company
("DuPont" or the "Company") on his breach of contract claim. Find-
ing no errors, we affirm.

I.

Schoenberg, a former DuPont employee, began his career with the
Company in 1974 as a research chemist. In 1977, he was transferred
to DuPont's Diagnostic Imaging facility in Brevard, North Carolina,
which produces x-ray film. While at Brevard, Schoenberg worked to
develop a new x-ray film which would be faster, age without fogging,
and have a lower coating weight. Between 1980 and 1983, Schoen-
berg worked on this project with his supervisor, Raymond LeStrange,
and another employee, John Bayless. Ultimately, the three developed
the "Improved Emulsion Sensitization Using Cysteine" process
("cysteine process").

For decades, DuPont has utilized recognition programs, whereby
employees may be rewarded for exceptional performance.1 In 1981,
DuPont first put in writing its Special Compensation Plan (the
"Plan"). One of the stated purposes of the Plan is "to provide greater
incentive for employees continually to exert their best efforts . . . by
rewarding them for services rendered with compensation that is in
addition to their regular salaries."2 In 1989, Schoenberg, along with
his colleagues, LeStrange and Bayless, received a Special Compensa-
tion Award from DuPont for their contribution to the development of
the cysteine process. The award totaled $37,000, of which Schoen-
_________________________________________________________________
1 See J.A. at 193.
2 Id. at 304.

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berg, LeStrange, and Bayless received $15,000, $15,000, and $7500,
respectively.

In 1990, DuPont produced and distributed a video entitled "Career
Systems Accomplishment Awards" which explained the Company's
Special Compensation Plan. After viewing the video, Schoenberg
requested that his supervisor submit an application for an increase of
his Special Compensation Award. Although his supervisor approved
the request, DuPont rejected the application. In December 1995,
Schoenberg again requested an adjustment of his award. This request
was likewise denied. In June 1996, Schoenberg received a letter from
in-house counsel for DuPont, once again rejecting the increase.

In March 1997, Schoenberg filed the instant action, seeking dam-
ages for breach of contract. Specifically, Schoenberg claimed that
DuPont was contractually obligated to pay him additional compensa-
tion pursuant to the Special Compensation Plan. The district court
granted DuPont's motion for summary judgment, finding that Special
Compensation Awards were within DuPont's "total discretion" and
that "no contract resulted simply from the existence of the Special
Compensation Award Plan."3 Alternatively, the district court found
that the statute of limitations barred Schoenberg's claim.

Schoenberg appeals the district court's determinations. He con-
tends that the district court improperly granted summary judgment
because there exist genuine issues of material fact regarding whether
the Special Compensation Plan was contractual or discretionary, what
documents or oral communications constitute the Plan, whether
DuPont complied with the terms of the Special Compensation Plan,
and whether his claim is barred by the applicable statute of limita-
tions.

II.

We review the district court's granting of summary judgment de
novo.4 Summary judgment is appropriate when "the pleadings, depo-
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3 Schoenberg v. E. I. du Pont de Nemours & Co., CA-97-109-1, slip op.
at 7 (W.D.N.C. Oct. 9, 1997) (hereinafter "Memorandum and Order").
4 See United States v. Leak, 123 F.3d 787, 791 (4th Cir. 1997) (citation
omitted).

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sitions, 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."5 The court must "view the facts and draw reason-
able inferences in a light most favorable to the nonmoving party."6

A.

DuPont's Special Compensation Plan, which is administered by the
Executive Committee of the Company's Board of Directors, provides
in part:

          Awards under this Plan may be granted for conspicuous ser-
          vice of any nature beneficial to the Company and involving
          performance by an employee substantially beyond that
          which might be expected of one occupying his or her posi-
          tion . . . .7

With regard to the granting of awards, the Plan states:

          [A]ny award granted to an employee who is not a member
          of the Board of Directors shall be made in the sole discre-
          tion of the Executive Committee which shall take final action
          on any such award.8

Schoenberg contends that a genuine issue of material fact exists as
to whether the Special Compensation Plan was contractual or discre-
tionary. In support of his argument, Schoenberg relies upon the affi-
davits of his supervisors and DuPont's "Career Systems
Accomplishment Awards" video, which he claims contradict the writ-
ten terms of the Plan. Specifically, Schoenberg's supervisor, Le-
Strange, attested that:

           In my capacity as supervisor for DuPont, I always conveyed
_________________________________________________________________
5 Fed. R. Civ. P. 56(c).
6 Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citation omitted).
7 J.A. at 304 (emphasis added).
 5130 35 8 8 Id. at 306 (emphasis added).

                    4
          the plan to other employees as non-discretionary. Once an
          employee qualified for Special Compensation, the amount
          would be determined by a formula related to the financial
          benefit to the company.9

Similarly, Jon Sherrill, the Laboratory Director of the Brevard Plant
in 1989, stated that:

          To the best of my knowledge, none of [DuPont's] methods
          of compensation are or have been discretionary once an
          employee qualifies.10

We agree with the district court that Schoenberg has failed to pro-
duce sufficient evidence showing that the Plan created a contractual
obligation. To the contrary, the evidence demonstrates that DuPont
retained complete discretion with regard to distributing Special Com-
pensation Awards. The affidavits of Schoenberg's supervisors and the
video do not compel a different conclusion. Both supervisors stated
that an employee must qualify before receiving a Special Compensa-
tion Award. Whether an employee qualified was a decision left to
DuPont's total discretion. And, as discussed further below, once
DuPont determined that an employee qualified for Special Compensa-
tion, the Company still retained discretion to determine the amount of
the award to be given. Additionally, a review of the transcript of the
video reveals that employees were repeatedly told that Special Com-
pensation Awards were approved, disapproved, or modified by the
Executive Committee.11

"Before a valid contract can exist, there must be mutual agreement
between the parties as to the terms of the contract. Where there is no
mutual agreement, there is no contract."12 Thus, the district court cor-
_________________________________________________________________

9 Id. at 381.

10 Id. at 377.

11 See id. at 408.
12 Routh v. Snap-On Tools Corp. , 423 S.E.2d 791, 795 (N.C. App.
1992) (citation omitted).

                    5
rectly determined that "no contract resulted simply from the existence
of the Special Compensation Award Plan."13

B.

Schoenberg next contends that a genuine issue of material fact
exists as to whether DuPont complied with the terms of the Special
Compensation Plan. Specifically, Schoenberg argues that DuPont
incorrectly calculated the amount of his Special Compensation, and
consequently, he received a much lower award than he was due. We
disagree.

The Plan states that two types of Special Compensation Awards are
available:

          Where an Award under this Plan is to be granted for ser-
          vices which it is believed will result in continuing financial
          benefit to the Company, the amount of which is determin-
          able over a period of years, the award shall take the form of
          a three-part award, based upon profits or savings over a
          five-year period. . . . If justified by the continued financial
          benefit resulting from the conspicuous service, second and
          third awards may, in the discretion of the Executive Com-
          mittee . . . be made . . . .

          Where an award under this Plan has been recommended for
          services which it is believed will not result in continued
          financial benefit to the Company, or which cannot be evalu-
          ated in money, the award shall take the form of a first and
          final award, the amount being determined on such basis as
          may be fixed by the Executive Committee . . . . 14

We first note that DuPont was not obligated to pay Schoenberg
Special Compensation. Having decided to do so, the Company still
_________________________________________________________________
13 Memorandum and Order at 7. Schoenberg briefly argues that an
implied contract existed. However, Schoenberg has not provided suffi-
cient evidence to show that an implied contract was created through acts
or conduct in the present case.
14 J.A. at 305 (emphasis added).

                    6
retained the discretion to determine which type of award Schoenberg
would receive. As the district court noted, Schoenberg received a
"first and final award." Although the Company admits that Schoen-
berg's award fell well below the normal range for Special Compensa-
tion Awards, that range was not a requisite, but rather, was in
DuPont's discretion. In determining the amount of the award, DuPont
took "into account the level, experience and assignments of the recipi-
ents as well as the contributions of many others in reducing this tech-
nology to practice."15 Accordingly, we decline to reverse the district
court's grant of summary judgment on this ground.

C.

Finally, Schoenberg contends that a genuine issue of material fact
exists as to whether his action is barred by the applicable statute of
limitations. The district court addressed this question as an alternative
ruling.16 However, having determined that DuPont was not contractu-
ally obligated to pay Schoenberg additional compensation, we decline
to address the statute of limitations issue.

III.

Based upon the foregoing, we affirm the district court's grant of
summary judgment in favor of DuPont. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid in the
decisional process.

AFFIRMED
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15 J.A. at 337.
16 See Memorandum and Order at 10.

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