                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-1399



ALEXANDER WHITTINGTON, JR.,

                                                Plaintiff - Appellant,

          versus


CITY OF CRISFIELD; CLARENCE BELL,

                                               Defendants - Appellees.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:05-cv-02783-WMN)


Submitted:   September 27, 2006             Decided:   November 2, 2006


Before WILLIAMS, TRAXLER, and KING, Circuit Judges.


Affirmed in part; reversed and remanded in part by unpublished per
curiam opinion.


Alexander Whittington, Jr., Appellant Pro Se. Robin R. Cockey,
COCKEY, BRENNAN & MALONEY, PC, Salisbury, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

            Alexander Whittington, Jr., appeals the district court’s

order granting summary judgment to the City of Crisfield and

Clarence    Bell   on    Whittington’s    state     and   vicarious      liability

claims for breach of employment contract and wrongful discharge;

free speech and procedural and substantive due process claims under

both the United States Constitution and the Maryland Declaration of

Rights; and the deprivation of federal constitutional rights under

42 U.S.C. § 1983 (2000).         With regard to all but the breach of

contract claim, we have reviewed the record and find no reversible

error.     We conclude that the district court erred, however, in

finding that the City’s policy manual did not, as a matter of law,

create any contractual obligations.

            The    district   court     reasoned    that    although      employee

handbooks or other, similar materials may function as unilateral

contracts, making the provisions they contain binding on the

employer, a clear disclaimer prevents them from having that effect.

It then found that because the handbook at issue in this case

contained   such    a    disclaimer,    Mr.    Whittington    was   an    at   will

employee    with    no    expectation    to    be   fired    only   for     cause.

Whittington v. Bell, No. 1:05-cv-02783-WMN (D. Md. Feb. 23, 2006).

     In arriving at this conclusion, the court did not address the

language in Elliott v. Board of Trustees of Montgomery County

Community College, 104 Md. App. 93 (Md. App. 1995), to the effect


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that “[n]ot every disclaimer in an employer's employee manual,

however, will effectively disclaim contractual liability.”         Id. at

102.   It also ignored Haselrig v. Public Storage, Inc., 86 Md. App.

116 (Md. App. 1991). In Haselrig, language in an employee handbook

indicated   that,   “[t]he   relationship   between   you   and   PSI   is

predicated on an at will basis. That is to say that either the

Employee or the Company may terminate their employment at their

discretion,” and “[i]t should be understood that employment and

compensation can be terminated, with or without cause and with or

without notice at any time, at the option of either the Company or

the Employee.” Id. at 120-21. The court held those provisions

insufficiently clear “disclaimers” to support a motion for summary

judgment on the employee’s wrongful discharge claim, finding that,

viewing the handbook as a whole, there was a genuine issue of

material fact regarding whether an employee justifiably relied on

it in believing he could only be terminated for cause.       See id. at

127-28 (finding that “an ambiguity exists when the language in the

provision is, to a reasonably prudent layman, susceptible of more

than one meaning, or where the placement of the provisions in the

handbook has that effect”) (citation omitted).

       The “disclaimer” here seems similarly ambiguous, if not more

so.    The manual contains a Section 15 which distinguishes between

employees who have been with the Department less than 90 days and

can be fired for any reason not in violation of the City’s Equal


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Employment/Affirmative Action Statement, and those who have been

employed longer than 90 days and can only be discharged for the

reasons specified in Section 17.           Section 17 contains a list of 15

reasons.         The disclaimer to which the district court refers is

contained at the end of that section.               It is preceded by four

asterisks.        Four asterisks also follow reasons “N” and “O” on the

list, suggesting that it applies only to them. The full disclaimer

begins “Discipline for any of the foregoing violations may include

.   .   .   .”    and   indicates   that   two   violations   will   result   in

suspension and three will bring about dismissal.                 The language

quoted by the district court follows.            (E.R. at 61.)   As a result,

it is not at all clear that the disclaimer stating that the City

reserves the right to waive or change its policy is not directed

solely at the disciplinary procedures.             It does not refer back to

Section 15 at all, or alter the distinction between employees on

the 90 day probation period and those who have been employed

longer.

        Moreover, nothing in the handbook contains the kind of clear

and conspicuous language disclaiming any contractual obligation

held considered unambiguous in other cases.             See, e.g., Zahodnick

v. International Business Machines Co., 135 F.3d 911, 914-15 (4th

Cir. 1997) (disclaimer “reserv[ing] the right to change all []

benefits, separation plans, programs, practices, policies and rules

at any time” and stating that “[t]he employment relationship . . .


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is at will. This means that the relationship can be ended at any

time for any reason by the employee or by IBM or the Federal

Systems Company” considered unambiguous); Castiglione v. Johns

Hopkins Hosp, 69 Md. App. 325, 338 (Md. App. 1986) (“The handbook

contained a statement that it ‘does not constitute an express or

implied contract’” and “[o]ther provisions of the manual reserved

appellee’s discretion to ‘discipline our workforce’”).

     Accordingly, we reverse the grant of summary judgment on the

breach   of   contract   claim   and   remand   that   claim   for   further

proceedings. We affirm the disposition of the other claims for the

reasons stated by the district court.           Whittington v. Bell, No.

1:05-cv-02783-WMN (D. Md. Feb. 23, 2006).          We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.



                                                      AFFIRMED IN PART;
                                          REVERSED AND REMANDED IN PART




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