IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-30848
Summary Calendar
_____________________
BERND WOHLSCHLAEGER
Plaintiff - Appellant
v.
FAIRMONT HOTEL COMPANY, New Orleans,
a California Limited Partnership
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(95-CV-922)
_________________________________________________________________
March 22, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Bernd Wohlschlaeger appeals the district court's Rule
12(b)(6) dismissal of his complaint against the Fairmont Hotel
Company ("Fairmont") for breach of contract and other claims
arising out of his termination. We affirm in part, vacate in
part, and remand.
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
I. BACKGROUND
Bernd Wohlschlaeger was hired by Fairmont, a California
limited partnership, on April 1, 1969. After completing
Fairmont's management training program, Wohlschlaeger was made
resident manager of the Fairmont Hotel-New Orleans. He was
promoted to general manager in 1981. In a letter dated July 1,
1987, Fairmont's President and C.E.O., Richard Swig, notified
Wohlschlaeger that he had been chosen to participate in
Fairmont's retirement plan. A Summary Plan Description for
Participants (the "Plan Description") accompanied Swig's letter.
On September 10, 1993, Wohlschlaeger was terminated.
Wohlschlaeger was told that he was not vested in any retirement
program and that there were no retirement funds to which he was
entitled. Wohlschlaeger executed a "General Release and Covenant
Not to Sue" (the "Release"), in consideration for which Fairmont
agreed to pay him $118,000. In March 1995, the Massachusetts
Mutual Life Insurance Company mailed Wohlschlaeger an IRS Form
1099-R indicating a distribution to Wohlschlaeger of $1,367.15
from the Fairmont Hotels Pension Plan.
On March 21, 1995, Wohlschlaeger filed a complaint against
Fairmont in the United States District Court for the Eastern
District of Louisiana, alleging breach of contract, detrimental
reliance, fraud, intentional infliction of emotional distress,
misrepresentation, duress, coercion, and unjust enrichment. The
district court granted Fairmont's motion for a more definite
statement pursuant to Federal Rule of Civil Procedure 12(e).
2
After Wohlschlaeger submitted his First Amendment to Complaint,
Fairmont filed a motion to dismiss Wohlschlaeger's claim pursuant
to Federal Rule of Civil Procedure 12(b)(6). On August 2, 1995,
relying on the pleadings and on its review of the Plan
Description, the district court granted the motion to dismiss.
Wohlschlaeger appeals.
II. DISCUSSION
Wohlschlaeger asserts eight claims against Fairmont. He
brings claims for intentional infliction of emotional distress
and misrepresentation. These two claims sound in tort and have
prescribed. He alleges breach of contract, fraud, duress,
coercion, and detrimental reliance. These claims fail because
the employment relationship between Wohlschlaeger and Fairmont
was at-will. Wohlschlaeger also brings a claim of unjust
enrichment. We conclude that this claim also fails, except as to
Wohlschlaeger's request for an accounting of the funds to which
he is entitled under Fairmont's retirement program. We address
these claims in order.
A. The Tort Claims
We review de novo a district court's dismissal under Rule
12(b)(6). Leffall v. Dallas Indep. School Dist., 28 F.3d 521,
524 (5th Cir. 1994). Accepting the allegations of the complaint
as true, we do not affirm the district court's dismissal unless
it appears beyond doubt that the plaintiff cannot prove any set
of facts in support of his claim which would entitle him to
3
relief. Benton v. United States, 960 F.2d 19, 21 (5th Cir.
1992).
We conclude that the district court properly dismissed
Wohlschlaeger's claims for intentional infliction of emotional
distress and misrepresentation because these claims are
delictual. In a diversity action, federal courts must apply the
substantive law of the forum state. Mills v. Davis Oil Co., 11
F.3d 1298, 1304 (5th Cir. 1994). Louisiana law provides that
delictual actions are subject to a liberative prescription of one
year which commences to run from the day injury or damage is
sustained. La. Civ. Code art. 3492. Wohlschlaeger claims that
his wrongful termination occurred on September 10, 1993. Because
he did not file the instant action until March 21, 1995, his
claims for intentional infliction of emotional distress and
misrepresentation have prescribed.
B. The Contract Claims
Arguing that his employment with Fairmont was for a definite
term, Wohlschlaeger alleges breach of contract and other contract
related claims--fraud, duress, coercion, and detrimental
reliance. Wohlschlaeger contends that he and Fairmont entered
into an employment contract whereby his lifelong tenure was
purchased for valuable consideration in the form of his continued
loyalty. To support his contention, Wohlschlaeger relies on
Fairmont's Employee Handbook and the letter from Swig. He also
argues that the Release to which he agreed was procured through
fraud, duress, and coercion.
4
Where the district court considers matters outside the
pleadings--as the district court did in this case by taking into
account the Plan Description, Rule 12(b) requires the court to
treat a motion to dismiss as a motion for summary judgment.
Central Nat'l Bank of Waco v. FDIC, 910 F.2d 1279, 1280 (5th Cir.
1990). If a motion to dismiss is treated as a motion for summary
judgment, the nonmovant must be accorded the procedural
safeguards of Rule 56. Washington v. Allstate Ins. Co., 901 F.2d
1281, 1284 (5th Cir. 1990). Rule 56 requires that the nonmovant
be given ten days within which to respond to a motion for summary
judgment. Id. However, in some cases it is not necessary for
the district court to give notice after it decides to treat a
Rule 12(b)(6) motion as one for summary judgment; the issue is
whether the nonmovant "had ten days' notice after the court
accepted for consideration matters outside the pleadings." Id.
In this case, the Plan Description was submitted to the court by
Wohlschlaeger himself.2 Moreover, Wohlschlaeger does not
complain of the district court's conversion of Fairmont's Rule
12(b)(6) motion to one for summary judgment. We find that
Wohlschlaeger was on notice for more than ten days that the trial
court could treat the motion to dismiss as a motion for summary
judgment. The notice provisions of Rule 12(b) and Rule 56 were
not violated.
2
Along with his pleadings, Wohlschlaeger also submitted
to the court a copy of Fairmont's Employee Handbook, the Release,
and the Form 1099-R that was sent to him by Massachusetts Mutual.
The text of Swig's letter was included in both Wohlschlaeger's
original complaint and his First Amendment to Complaint.
5
We review the granting of a motion for summary judgment de
novo, applying the same criteria used by the district court in
the first instance. Norman v. Apache Corp., 19 F.3d 1017, 1021
(5th Cir. 1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.
1994). Summary judgment is proper "if the admissions,
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 judgment as a matter of law."
Fed. R. Civ. P. 56(c).
Under Louisiana law, "a contract is an agreement by two or
more parties whereby obligations are created, modified, or
extinguished." La. Civ. Code art. 1906. "Where there is no
specific contract between an employee and an employer, the
employee is at-will and may be terminated for any reason, at any
time." Finkle v. Majik Market, 628 So. 2d 259, 262 (La. App. 5
Cir. 1993) (citing La. Civ. Code 2747). However, if the employee
has given a consideration in addition to the services that he
promised to perform, an otherwise at-will contract for employment
may be modified to one for a definite term. Pitcher v. United
Oil & Gas Syndicate, 139 So. 760, 761 (La. 1932).
As evidence that a lifetime employment contract existed
between the parties, Wohlschlaeger offers, to no avail,
Fairmont's Employee Handbook. The handbook contained a
disclaimer which stated that "[e]ither the employee or the hotel
can terminate the employment relationship at will, and nothing
6
contained in these corrective actions steps should be interpreted
as creating an employment contract between Fairmont Hotels and
its employees." Wohlschlaeger attempts to discount the effect of
this disclaimer by arguing that it was not sufficiently
conspicuous. To buttress this argument he relies on Jimenez v.
Colorado Interstate Gas Co., 690 F. Supp. 977, 988 (D. Wyo.
1988). Wohlschlaeger's reliance on Jimenez is misplaced because
the Jimenez court applied Wyoming law which includes a
judicially-created exception to employment at-will. This
exception--that an employee handbook may constitute an implied
term of an employment contract--has not been accepted by
Louisiana courts:
(1) There are no Louisiana cases holding that
employee manuals, policies, or grievances procedures
confer any contractual rights upon employees or create
any exceptions to the "employment at will" doctrine.
(2) Several Louisiana cases have held that
employee manuals as well as company policies and
procedures do not confer contractual rights upon
employees nor create any exceptions to the "employment
at will" doctrine.
Mix v. University of New Orleans, 609 So. 2d 958, 964 (La. App. 4
Cir. 1992). We find that the Employee Handbook was merely a
unilateral expression of company policies and procedures. Any
benefits conferred by the handbook were merely gratuitous and
were not binding on Fairmont.
Also unavailing is Wohlschlaeger's reliance on the letter
from Swig. This letter notified Wohlschlaeger that he had been
chosen to participate in Fairmont's retirement program.3
3
Swig's letter read as follows:
7
Wohlschlaeger argues that the letter confirms that Fairmont
promised to employ him until his retirement. We disagree with
Wohlschlaeger's characterization of Swig's letter as a lifetime
contract of employment. We do not find "that [the employee's]
participation in [the company's] retirement program established a
fixed term of employment. [The employee's] entitlement to
retirement benefits was not a contract for a specific term."
Williams v. Touro Infirmary, 578 So. 2d 1006, 1009 (La. App. 4
Dear Bernd,
You are among a select group of employees chosen to
participate in our salary continuation program.
The plan is designed to provide you with continuing
income for a period of time after you reach normal
retirement age and to provide financial security to
your designated beneficiaries in the event of your
death prior to receiving the maximum benefits to which
you are entitled by the plan.
Your selection to this plan was based upon the desire
of the company to reward you for your future years of
service and loyalty.
Enclosed you will find a summary of the plan and your
individual certificate of participation.
Once again, let me tell you how pleased we are to
provide you with this substantial benefit and
congratulate you for having been chosen to receive it.
Sincerely,
Richard L. Swig
President & Chief Executive Officer
8
Cir. 1991) (concluding that terminated infirmary workers were at-
will employees despite participation in retirement program).
We conclude that, as a matter of law, there was no contract
between Wohlschlaeger and Fairmont. Wohlschlaeger cannot
reasonably rely on either the Employee Handbook or Swig's letter
to transform his at-will employment into employment for a term.
Therefore, Wohlschlaeger's termination did not constitute breach
of contract. Furthermore, because we find no contract, the
issues of duress, fraud, and coercion are moot.
Wohlschlaeger also asserts a claim for detrimental reliance.
The elements of a claim for detrimental reliance are: (1) a
promise; (2) reasonable reliance on that promise; and (3)
resulting detriment. Carter v. Huber & Heard, Inc., 657 So. 2d
409, 411 (La. App. 3 Cir. 1995) (citing La. Civ. Code art. 1967).
Wohlschlaeger is unable to carry his burden to support a
detrimental reliance claim because any reliance on either the
Employee Handbook or Swig's letter was unreasonable. In this
instance, as with Wohlschlaeger's other contract claims, summary
judgment was proper.
C. Unjust Enrichment
Finally, Wohlschlaeger alleges unjust enrichment. Under
Louisiana law, the five prerequisites for an action in unjust
enrichment are: (1) an enrichment on the part of the defendant;
(2) an impoverishment on the part of the plaintiff; (3) a causal
relationship between the enrichment and the impoverishment; (4)
an absence of justification for the enrichment or impoverishment;
9
and (5) no other remedy at law. Deubler Elec. Inc. v. Knockers
of Louisiana, Inc., 665 So. 2d 481, 484 (La. App. 5 Cir. 1995)
(citing Edwards v. Conforto, 636 So. 2d 901 (La. 1993)).
Determining that "the obvious justification for any enrichment
and/or impoverishment is the plaintiff's prior at-will employment
with the Fairmont," the district court found that the fourth
prerequisite was not satisfied. The court determined, therefore,
that Wohlschlaeger could not prevail on his claim of unjust
enrichment. As to this issue, we conclude that summary judgment
in favor of Fairmont was proper, except as discussed below.
D. Request for an Accounting
Wohlschlaeger requests an accounting of the benefits due him
under Fairmont's retirement program.4 He argues that he was
vested in the retirement program and was entitled to a
distribution. As support for his claim, Wohlschlaeger offers the
Form 1099-R sent to him by Massachusetts Mutual. The Form 1099-R
indicated a payment distribution to Wohlschlaeger of $1,367.15
from the Fairmont Hotels Pension Plan. Wohlschlaeger denies
under oath receiving the money.
The district court did not address Wohlschlaeger's request
for an accounting or the Form 1099-R. The claim for an
4
Fairmont argues that because Wohlschlaeger did not
raise his claim for an accounting in the lower court, he is
precluded from arguing this issue on appeal. Contrary to
Fairmont's assertion, however, Wohlschlaeger did claim in his
pleadings that he had been denied an accounting and a
reconciliation.
10
accounting may sound in contract or unjust enrichment. It is
likewise unclear if Fairmont is the correct defendant or whether
one or more other defendants must be parties to the action.
Whatever is determined in this regard, to the extent that the
district court did not address Wohlschlaeger's request for an
accounting, we vacate and remand.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court's
Rule 12(b)(6) dismissal of the claims of intentional infliction
of emotional distress and misrepresentation and the summary
judgment as to the claims of breach of contract, fraud, duress,
coercion, detrimental reliance, and unjust enrichment; however,
as to any claims properly asserted in connection with the request
for an accounting, we VACATE and REMAND for further proceedings
consistent with this opinion. Each party shall bear its own
costs.
11