UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BILLY K. PHILLIPS; SANDRA S.
PHILLIPS,
Plaintiffs-Appellees,

v.

CONSOLIDATION COAL COMPANY,
Defendant-Appellant,                                                No. 97-2180

and

BENJAMIN STATLER, Vice President of
Moundsville Operations of
Consolidation Coal Company,
Defendant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CA-94-88-5)

Argued: June 3, 1998

Decided: August 6, 1998

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

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Reversed and remanded with instructions by unpublished per curiam
opinion.

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COUNSEL

ARGUED: Thomas A. Smock, POLITO & SMOCK, P.C., Pitts-
burgh, Pennsylvania, for Appellant. David Allen Jividen, BORDAS,
BORDAS & JIVIDEN, Wheeling, West Virginia, for Appellees. ON
BRIEF: Sally Griffith Cimini, POLITO & SMOCK, P.C., Pittsburgh,
Pennsylvania; William A. Kolibash, PHILLIPS, GARDILL, KAISER
& ALTMEYER, Wheeling, West Virginia, for Appellant. James B.
Stoneking, BORDAS, BORDAS & JIVIDEN, Wheeling, West Vir-
ginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Billy Phillips was a mine foreman for Consolidation Coal Com-
pany (Consol) for about twenty years until he was fired in 1993. Phil-
lips and his wife sued Consol on breach of contract and other claims,
asserting that he had a lifetime oral employment contract with Consol
which the company breached by firing him without good cause. The
case was tried, and the jury found that Phillips had such a contract and
that Consol had breached it. The jury awarded substantial money
damages to Phillips. The district court denied Consol's subsequent
motion for judgment as a matter of law, and Consol appeals. Because
we conclude that Phillips failed to offer clear and convincing evi-
dence that he had a lifetime employment contract or evidence that
Consol had a practice of offering such contracts to its foremen, we
reverse and remand to the district court with instructions to grant
judgment to Consol as a matter of law.

I.

Phillips was hired by Consol as a coal miner in October 1970. At
that time Phillips was a member of the United Mine Workers of
America (UMWA). Phillips sought certification as a mine foreman in
June 1974. This certification would allow him to advance his career
while remaining a UMWA member or give him the option of becom-

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ing a non-union foreman. While Phillips was studying to obtain his
certification, he was approached by John Stock, superintendent of the
McElroy mine where Phillips worked. Stock offered to hire Phillips
as a foreman, a salaried (non-union) position, and to send him to
school for further training.

According to his testimony at trial, Phillips expressed concerns that
he would lose job security as a non-union employee. Stock allayed
Phillips's concerns by stating that "we have 50 years work here" and
"[a]s long as you do your job, you don't have anything to worry
about." Shortly thereafter, Phillips attended Consol's foreman school
in Moundsville, West Virginia. There, Walt Mueller, an instructor,
indicated to Phillips that "[t]here is no reason in the world" why he
could not stay at the mine until he retired and that"[y]ou have to give
the company a pretty good reason to terminate you." Based on these
statements, Phillips testified that he had an oral lifetime employment
contract with Consol. Consol disputed that these statements were ever
made, and both Stock and Mueller testified that they never offered a
lifetime contract to Phillips.

In May 1993 the UMWA struck and coal mining operations shut
down across West Virginia. Consol ordered Phillips and the other
foremen to cross the picket lines and mine coal themselves in order
to continue production. Some of the striking miners reacted with hos-
tility to foremen crossing their picket lines. Phillips and his wife testi-
fied that striking mine workers stalked both of them and made
escalating threats of violence against them. Fearing retaliation from
the strikers, Phillips decided to call in sick and refused to return to
work. Consol then fired him for absenteeism.

At trial Phillips produced Russell McMahon, a fellow foreman at
Consol, who testified that he (McMahon) had received a similar
promise of lifetime employment from Consol. Consol attempted to
impeach McMahon's testimony by referring to his deposition, in
which McMahon indicated that he had never received a promise of
lifetime employment.

The jury found both that Phillips had a lifetime employment con-
tract and that Consol breached that contract by firing him. It awarded
Phillips $717,000 in damages for past and future lost wages. Consol

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moved for a judgment as a matter of law, arguing that the evidence
was insufficient for a reasonable jury to find that an oral lifetime
employment contract existed. The district court denied the motion,
and Consol now appeals.

II.

We review the denial of the motion for judgment as a matter of law
de novo, viewing the evidence in the light most favorable to Phillips.
See Freeman v. Case Corp., 118 F.3d 1011, 1014 (4th Cir. 1997). If
Phillips failed to demonstrate a prima facie right of recovery on his
alleged oral employment contract, Consol is entitled to judgment as
a matter of law despite the jury's verdict. See Adkins v. Inco Alloys
Int'l, Inc., 417 S.E.2d 910 (W. Va. 1992), syl. point 5; cf. Thacker v.
Peak, 800 F. Supp. 372, 383-84 (S.D.W.Va. 1992) (granting summary
judgment to employer where employee could not make prima facie
case for recovery on an oral employment contract). As this case is in
federal court under diversity jurisdiction, we must apply West Vir-
ginia law.

West Virginia follows the majority rule that an employee is pre-
sumed to have an at-will employment relationship and must carry the
burden to rebut that presumption. See Suter v. Harsco Corp., 403
S.E.2d 751, 754 (W. Va. 1991) ("[A]ny promises alleged to alter [the
at-will presumption] must be very definite to be enforceable" (empha-
sis in original)). "[L]ifetime employment contracts are extraordinary
and . . . an offer for lifetime employment must be expressed in clear
and unequivocal terms before a court will conclude that an employer
intended to enter into such a weighty obligation." Williamson v. Shar-
vest Management Co., 415 S.E.2d 271, 274 (W. Va. 1992) (citations
omitted). In order to enforce an alleged lifetime employment contract,
the employee must establish his claim by clear and convincing evi-
dence. See Adkins, 417 S.E.2d at 910, syl. point 3.

Phillips argues that Consol gave him a lifetime oral employment
contract that it later breached by firing him without good cause. This
assertion is based on the statements by Stock and Mueller that Consol
had fifty years of work at the mine and that "[a]s long as you [Phil-
lips] do your job, you don't have anything to worry about." Phillips

                    4
presented no evidence directly corroborating his claim that his own
contract was for life.

An employee cannot satisfy the clear and convincing evidentiary
burden by offering nothing more than his own testimony. "`[T]he oral
testimony of the beneficiary alone is a slender reed upon which to
support a judgment' based on breach of an oral contract." Thacker,
800 F. Supp. at 383 (quoting Thompson v. Stuckey , 300 S.E.2d 295,
298 (W. Va. 1983)). If Phillips's claim is based solely on his uncor-
roborated testimony and he can present no additional evidence of the
existence of the contract, his claim must fail. See Thacker, 800
F. Supp. at 384.

The only other evidence that Phillips presented to support his claim
was McMahon's testimony. McMahon testified that he was told that
Consol "had coal therefore a hundred years and I[McMahon] had a
job for life." McMahon further testified that he took that to be a prom-
ise of a job for life. Phillips claims that this testimony (his and
McMahon's) demonstrates that Consol had a practice of forming life-
time oral employment contracts with its foremen. Evidence that an
employer has a practice of offering lifetime employment contracts
may sufficiently corroborate an employee's lifetime contract claim to
permit the matter to go to a jury. See Thacker , 800 F. Supp. at 384.
However, under West Virginia law the testimony of another isolated
witness is insufficient to establish that an employer has the practice
of issuing oral lifetime employment contracts. Rather, the employee
must show "that the practice occurred a sufficient number of times to
indicate a regular course of business and under conditions that were
substantially the same as the circumstances in the case at issue."
Adkins, 417 S.E.2d at 918.

Again, the only support Phillips presents for his argument about
Consol's alleged practice of giving lifetime employment contracts to
its foremen is his testimony and the testimony of one other foreman,
McMahon. Neither Phillips nor McMahon offered any tangible evi-
dence to support their individual contract claims. Two employees
with unsupported assertions of lifetime oral employment contracts are
hardly a sufficient number of occurrences to establish a regular course
of business. As a matter of (West Virginia) law, this isolated testi-

                    5
mony is not sufficient to demonstrate that Consol had a general prac-
tice of giving these extraordinary contracts to its foremen.*

Phillips has failed to present clear and unequivocal evidence of his
claim that he received a lifetime employment contract. He also has
not shown that Consol followed a practice of offering lifetime
employment contracts to its foremen. Therefore, Phillips failed to
establish a prima facie claim for recovery on his alleged contract. The
damage award was predicated solely on the jury's erroneous finding
that a lifetime employment contract existed. Accordingly, we must
reverse the judgment and remand to the district court with instructions
to grant judgment as a matter of law to Consol.

REVERSED AND REMANDED WITH INSTRUCTIONS
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*Consol also argues there were various evidentiary errors at trial,
including the argument that the district court improperly prevented Con-
sol from presenting evidence that would demonstrate that Consol did not
have the practice of offering lifetime employment contracts. Because we
reverse the district court's denial of judgment as a matter of law, we need
not reach these issues.

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