                                James Scott WESSON, Plaintiff-Appellant,

                                                     v.

                        The HUNTSMAN CORPORATION, Defendant-Appellee.

                                               No. 99-10491.

                                      United States Court of Appeals,

                                             Eleventh Circuit.

                                              March 17, 2000.

Appeal from the United States District Court for the Southern District of Alabama. (No. 97-01013-CV-MJ-S),
William H. Steele, Judge.

Before ANDERSON, Chief Judge, WILSON, Circuit Judge, and HILL, Senior Circuit Judge.

        HILL, Senior Circuit Judge:

        This is an appeal from the grant by the district court1 of appellee The Huntsman Corporation's

(Huntsman) (1) motion for partial summary judgment dismissing as time barred appellant James Scott

Wesson's (Wesson) claim under the Age Discrimination and Employment Act of 1967 (ADEA) and (2)

motion for summary judgment on Wesson's state law claim for breach of an oral contract for guaranteed

lifetime employment. Based upon the following, we affirm.

                                      I. FACTUAL BACKGROUND

        For eighteen years, from 1965 to 1983, Wesson was employed by Shell Chemical Corporation (Shell)

as a salesman of polystyrene and related chemical products. Although Shell's polystyrene plant was in Ohio,

Wesson serviced customers in his sales territory from his home in Alabama.

        In 1983, Huntsman bought the Ohio facility from Shell and acquired its polystyrene business.

Wesson was a member of the Shell transition team that worked with Huntsman personnel to insure the

successful transfer of Shell polystyrene customers to Huntsman.




    1
      Both parties executed a joint stipulation to the exercise of jurisdiction by a United States magistrate
judge and their consent to have this case decided by him. However, for ease of reference we refer to him as
the district court.
          In March 1983, Huntsman made a written employment proposal to Wesson.2 While the written offer

set forth the specific terms, conditions and provisions of Wesson's employment, it contained no reference to

employment duration nor guarantee of lifetime employment.

          In April 1983, Wesson met twice with Huntsman President, Jon Huntsman, and Huntsman Senior

Vice President of Marketing and Sales, Ron Rasband, to discuss his potential employment with Huntsman.

During one of these meetings, Wesson voiced three concerns: (1) that he was, in 1983, forty-three years old

and desired permanent employment until retirement age; (2) that he wanted employment benefits comparable

to those of Shell; and (3) that he did not want to relocate from his Alabama home.

          At one of these meetings, Rasband told Wesson that he "would always have a job." Mr. Huntsman

told Wesson words to the effect that "as long as I have a company, you will always have a job with

Huntsman." Wesson was a copious notetaker and made hand-written notes of these conversations, both on

the written employment agreement itself and on a separate sheet of paper. These notes did not suggest or

refer to Wesson's duration of employment or guarantee of lifetime employment.

          Things went well for the next thirteen years, 1983 to 1996, as Wesson worked successfully for

Huntsman.3 Huntsman alleges that, in early 1996, Wesson was offered the possibility of employment with

Huntsman in Michigan. As he did not want to relocate from Alabama, Wesson did not pursue this option.

In February 1996, Huntsman consolidated and reduced its workforce by thirty-eight positions. Wesson was

terminated. At the time, he was fifty-five years of age.

                                   II. PROCEDURAL BACKGROUND




    2
       Similar offers of employment were made by Huntsman to some eighty other Shell employees.

   3
    It is undisputed that Wesson received the same benefits with Huntsman as he had with Shell and that he
was paid a joining bonus of $17,000.00. Wesson admits that he did not surrender an existing job with Shell
to work for Huntsman as his prior job with Shell ended when Huntsman bought the Ohio plant. Had he
wanted continued employment with Shell, he would have been forced to work at a different Shell plant.

                                                     2
        In June 1996, Wesson filed a charge of age discrimination with the Equal Opportunity Employment

Commission (EEOC) against Huntsman. In September 1996, his attorney wrote the EEOC, requesting a right

to sue letter. In December 1996, the EEOC issued the following Notice to Wesson:

        This is to inform you that the Commission has made a determination that it will not proceed further
        with its processing of the above-referenced case under the [ADEA] because Charging Party
        [Wesson] intends to file suit in Federal District Court.

        The fact that the Commission will take no further action does not affect your rights to take legal
        action on your own behalf. As you were advised during this investigation, your private suit rights
        have not been protected by filing a complaint. If you wish to file a charge, contact this office
        immediately.

(Emphasis added.)

        Some ten months after the Notice was issued, in November 1997, a second, different attorney filed

a complaint in federal district court on Wesson's behalf, alleging age discrimination under the ADEA and

breach of an oral contract of guaranteed lifetime employment. The ADEA claim was based upon the June

1993 EEOC Charge and the December 1998 Notice.

        In March 1998, Huntsman moved for partial summary judgment on the ADEA claim on the grounds

that federal law requires an ADEA plaintiff to file his or her lawsuit within ninety (90) days of receiving

notice of the termination of the EEOC administrative proceeding. 42 U.S.C. § 2000e-5(f)(1). After full

briefing, the magistrate judge agreed. He granted Huntsman's motion and dismissed Wesson's ADEA claim

on the basis that it was time-barred.

        In June 1999, at the close of discovery, Huntsman moved for summary judgment on the remaining

claim of an oral contract of lifetime employment. After full briefing, in a twelve-page memorandum decision,

the magistrate judge agreed, granting Huntsman's motion. Wesson now appeals both rulings.

                                        III. STANDARD OF REVIEW

        We review the district court's grants of partial summary judgment and summary judgment de novo,

reviewing all facts and reasonable inferences in the light most favorable to the nonmoving party, and applying




                                                      3
the same standard as the district court.4 Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th

Cir.1999) (citations omitted). A grant of summary judgment is appropriate "if the pleadings, depositions,

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."

Id.; Fed.R.Civ.P. 56(c).

                                                 IV. DISCUSSION

A.          Issue Presented

            We discuss only one issue: was the district court correct in his ruling on summary judgment that

Wesson could not establish, as a matter of Alabama law, his state law claim of an alleged oral contract of

guaranteed life employment by Hunstman.5

B.          Contentions of the Parties

1.          Wesson

            As the nonmoving party, reviewing all facts and reasonable inferences in his favor, Wesson claims

that he has met his burden of showing that there is substantial evidence in the record to support a prima facie

case of a contract of permanent employment under Alabama law. In support, Wesson argues that the Supreme

Court of Alabama, in Birmingham-Jefferson County Transit Authority v. Arvan, 669 So.2d 825(Ala.1995),

articulated a three-prong test to determine if an employment contract is one other than terminable at will.6

Wrote the Alabama court:

            [T]hree elements must be shown to establish that an employment contract is not terminable at will:
            (1) that there was a clear and unequivocal offer of permanent employment, i.e., lifetime employment
            or employment of a definite duration; (2) that the hiring agent had the authority to bind the principal


     4
         See note 1 supra.

     5
    We affirm without opinion the grant by the magistrate judge of Huntsman's motion for partial summary
judgment on Wesson's ADEA claim on the basis that such claim was time barred. See 11th Cir. R. 36-1.

     6
     In general, a contract of employment that is indefinite and without stipulation for an implied minimum
period is at the will of either party. Alabama Mills Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939).

                                                          4
         to a permanent employment contract; and (3) that the employee provided substantial consideration
         for the contract separate from the services to be rendered.

Id. at 827 (emphasis added).

         Wesson asserts that the oral representations made in 1983, by Mr. Huntsman and Rasband, as

Huntsman agents, taken in the context of employment negotiations, clearly created an unequivocal offer of

permanent employment and satisfy the first element of Birmingham-Jefferson County. As to the second

element, Wesson contends that Mr. Huntsman and Rasband, as the two highest ranking Huntsman executives,

had obvious authority to contractually bind the principal company, satisfying the second element of

Birmingham-Jefferson County. Finally, Wesson claims that he furnished consideration over and above going

to work for Huntsman, as he left an eighteen-year secure employment with Shell to work for Huntsman, at

the time an unknown entity in the chemical industry.7

2.       Huntsman

         Huntsman claims that the issue of lifetime employment was secondary, "almost [a] throw-away

claim" to Wesson's ADEA claim, touted by Huntsman to be the centerpiece of Wesson's complaint. It

contends that lifetime employment claim is based only upon the following Wesson deposition testimony:

         A. And then [Mr. Huntsman] told me that they needed me. They wanted me on board, that I had
         skills and talents, that I had done an excellent job with Shell and that I had been handpicked to be on
         the transition team and he was hand picking me to become a permanent employee of Shell—I mean
         of Huntsman. And that he felt that I would do a good job, that I would wear more hats than any hats
         I had ever worn in Shell. I would have more responsibility than I ever dreamed possible in Shell and
         I would have the adequate authority to go with that responsibility. And I would be able to make
         decisions that I couldn't even dream of making within the Shell organization. And that if I came on


     7
      Implicit in the definition of "permanent employment" established by Alabama Mills, see note 6 supra,
and its progeny, Wesson argues, are the issues of the continued need for a plaintiff's services and his or her
performance abilities. See Bates v. Jim Walter Resources, Inc., 418 So.2d 903 (Ala.1982). In this regard,
Wesson contends that although Huntsman was undergoing a reorganization, there was a continued need for
his sales services. Id. at 906. Wesson claims that immediately after he was terminated, a person with far less
qualifications was hired to sell chemical products in the area where he was formerly employed. In addition,
Wesson claims that the evidence is undisputed that he had performed his job with Huntsman for thirteen years
in a satisfactory manner, who either continually met or exceeded his sales goals. Hence, he argues there was
no reason for his discharge and that he has presented a prima facie case, sufficient to withstand summary
judgment, that Huntsman made to him an unequivocal offer of permanent employment.

                                                       5
           board with him, I would never regret it as long as I lived. And he would be forever grateful indebted
           to me for making what he considered from my standpoint a rather high risk opportunity ...

           A. Jon Huntsman told me that, as I have already stated, that I would wear these hats. I would have
           these responsibilities, I would have authority to go with the responsibilities. We were going to grow
           a company that would stagger the imagination of the industry ...

           A. He said that my concern was the least of the concerns that I should have, and that as long as he
           had a company I will always have a job with Huntsman.

           Q. As long as he had a company. Is this sum and substance of what he said or is that a quote?

           A. That's basically a quote.

(Emphasis added.).

           These statements, Huntsman argues, are not the clear and unequivocal evidence necessary under

Alabama law to support a claim for an oral contract of lifetime employment. Birmingham-Jefferson County,

669 So.2d at 827. Under Alabama law, an employee claiming an oral contract for lifetime has a particularly

"heavy burden of proof" as these contracts are extraordinary and not lightly to be implied. Alabama Mills,

186 So. at 704; Howard v. Wolff Broadcasting Corp., 611 So.2d 307, 310-11 (Ala.1992); Chastain v. Kelly-

Springfield Tire Co., 733 F.2d 1479, 1484 (11th Cir.1984). Huntsman argues that the alleged remark made

by Mr. Huntsman was too vague and indefinite to support an extraordinary claim for a lifetime contract.

           Huntsman contends that it is also telling that Wesson made his own notes, both on the written offer

of employment and on a separate piece of paper. No part of those notes and no aspect of the written offer

refers to or suggests any term of employment or a guarantee of lifetime employment. In other words,

Huntsman asserts, none of the remarks alleged to be made by Mr. Huntsman were made in a contractual

context.

           As to consideration, Huntsman claims that giving up existing employment with Shell does not satisfy

the sufficient, independent consideration element of Birmingham-Jefferson County. See Orsini v. Trojan

Steel Corp., 219 S.C. 272, 64 S.E.2d 878, 880 (1951). Also, Wesson did not surrender anything to work for




                                                        6
Huntsman, and not Shell, as he received substantial additional benefits, i.e. comparable employee benefits

and a $17,000.00 signing bonus.8

C.       Analysis

         In this diversity appeal, we look to Alabama law to determine whether Wesson has met the "heavy

burden of proof to establish that [his] employment relationship is other than 'at will.' The law [of Alabama]

considers lifetime or permanent employment contracts to be extraordinary and not lightly to be implied."

Howard, 611 So.2d at 310-11 (citing Alabama Mills, 186 So. at 704). The presumption exists in Alabama

that an employment relationship of indefinite duration is "at the will of either party." Wright v. Dothan

Chrysler Plymouth Dodge, Inc., 658 So.2d 428, 430 (Ala.1995).

         Under the three-prong test of Birmingham-Jefferson County, Wesson must establish that he received:

(1) a clear and unequivocal offer of lifetime or permanent employment; (2) that the hiring agent(s) had the

authority to bind Huntsman to a permanent employment contract; and (3) that he provided substantial

consideration for the contract separate from the services to be performed. Birmingham-Jefferson County, 669

So.2d at 827. With this said, however, in the context of this summary judgment appeal, we view all facts and

reasonable inferences in the light most favorable to Wesson, the non-moving party. Allison, 184 F.3d at 1306.

         We start our analysis with the first prong—a clear and unequivocal offer. An offer of "permanent

employment" is clear and unequivocal under Alabama law. See Bates, 418 So.2d at 906. An offer of

"employment for life" is clear and unequivocal under Alabama law. See Chastain v. Kelly-Springfield Tire

Co., 733 F.2d 1479, 1481 (11th Cir.1984). Such an offer by an employer is a weighty obligation. Id.

Permanent employment is synonymous with lifetime employment. See Birmingham-Jefferson County, 669

So.2d at 827. If an offer is not clear and unequivocal, it is presumed under Alabama law that the employment


     8
      As to Huntsman's continued need for Wesson's services, in 1995 and 1996, there was a corporate
reorganization and reduction in workforce at Huntsman, and Wesson's job was no longer necessary.
Thirty-eight other non-officer employees were laid off. Huntsman contends that Wesson cannot cite any
authority that allows a terminated employee to challenge a legitimate corporate business decision to
reorganize and downsize.

                                                     7
contract is at-will and can be terminated by the employer with or with out justification. Udcoff v. Freidman,

614 So.2d 436, 438 (Ala.1993).

         Here the 1998 deposition evidence submitted by Wesson in support of his claim are the oral

representations allegedly made to him fifteen years earlier, in April 1983, by Mr. Huntsman and Rasband

during meetings negotiating his written offer of employment.9 Wesson concedes in his deposition testimony,

however, that it was only the words used by Mr. Huntsman, and not by Rasband, that constituted a clear and

unequivocal offer of lifetime employment.

         Wesson testified that Rasband told him that even while building his empire, Mr. Huntsman had

always "taken care of the people in Huntsman," that "if Wesson went to work for Huntsman [he] would never,

ever regret it," that "[he] would always have a job", and that "[he] would always have a job doing something

because of somebody [sic] with [his] talents and skills."

         Wesson testified that Mr. Huntsman told him that "as long as I have a company, you will always

have a job with Huntsman." Wesson testified that these are the only words and this is the only statement

made to him regarding guaranteed lifetime employment some fifteen years earlier. These are the only words

and this is the only statement upon which Wesson relies to establish a clear and unequivocal oral offer of

permanent or lifetime employment, sufficient to meet his heavy burden under Alabama law, that his is an

employment relationship other than "at will." Howard v. Wolff Broadcasting Corp., 611 So.2d 307, 310-11.

We disagree.

         As we recognized, an offer of permanent employment by any employer is viewed by Alabama courts

as extraordinary to begin with—not lightly to be implied. Id. This statement made by Mr. Huntsman, fifteen




     9
       Other evidence submitted by Huntsman consists of the written offer of employment, together with
Wesson's handwritten notes on the offer itself and on a separate blank sheet of paper. While the offer sets
forth definite terms of employment, i.e., title, sales boundaries, office and support services, benefits, company
car, salary, bonus, any specific reference to duration is noticeably absent. While "Starting Date: Completion
of Acquisition??" is mentioned in Wesson's notes, noticeably absent is any reference to duration or term of
employment.

                                                       8
years earlier, when he was negotiating with Wesson, in addition to negotiating with some eighty other former

Shell employees, is not clear or unequivocal of anything.

        As the district court noted, the statement made by Mr. Huntsman "appears to be a comment on the

stability of [Mr.] Huntsman's company rather than a contractual offer of lifetime employment." Perhaps it

can be viewed as a prediction, made by an enterprising entrepreneur, eager to gain entrance into a new

industry. Perhaps it can be viewed as puffing, by an ambitious businessman, proud of his reputation for

fairness among his employees. What it most definitely cannot be viewed as, is a clear and unequivocal offer

of lifetime employment in Alabama. As we conclude that Wesson does not meet the first prong of the

three-prong test of Birmingham-Jefferson County, we need not discuss the other two.

                                            V. CONCLUSION

        The judgment of the district court is AFFIRMED.




                                                     9
