UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN H. ADAMS, JR.,
Plaintiff-Appellant,
v.
No. 97-1544
GREENBRIER OLDSMOBILE/GMC/
VOLKSWAGEN, INCORPORATED, a
Virginia Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
William T. Prince, Magistrate Judge.
(CA-96-887-2)
Argued: March 5, 1998
Decided: January 28, 1999
Before MICHAEL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Jack Elmer Ferrebee, JACK E. FERREBEE, P.C., Vir-
ginia Beach, Virginia, for Appellant. Abram William VanderMeer,
Jr., CLARK & STANT, P.C., Virginia Beach, Virginia, for Appellee.
ON BRIEF: Timothy W. Dorsey, CLARK & STANT, P.C., Virginia
Beach, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
John Adams appeals the district courts grant of judgment as a mat-
ter of law for Greenbrier Oldsmobile/GMC/Volkswagen, Inc. (Green-
brier or Greenbrier Olds). Adams, who suffers from heart problems
that have resulted in a series of heart attacks, claims that Greenbrier
Olds fired him because of his heart condition in violation of the
Americans with Disabilities Act (ADA), 42 U.S.C.§§ 12101-12213
(1994). In addition, he alleges that Greenbrier Olds breached an oral
lifetime employment contract that he had with the company by firing
him without cause. We affirm the district court's ruling that Adams
failed to present sufficient evidence to support his contract claim.
However, because the court erred in directing a verdict on Adams's
ADA claim, we reverse in part and remand for a new trial.
I.
This case involves three Chesapeake, Virginia, car dealerships and
the employment services of John ("Jack") Adams. Greenbrier Olds,
the defendant, and Greenbrier Chrysler/Plymouth/Jeep/Eagle (Green-
brier Chrysler) are separate dealerships that shared common owners
and management in late 1994, when both companies attempted to hire
Adams away from his job at Greenbrier Dodge, a third, unrelated
dealership.
Adams began his employment at Greenbrier Dodge as a car sales-
man in January 1992. He was later promoted to the position of used
car sales manager notwithstanding a serious heart attack shortly after
he was hired. This heart attack, Adams's second, required six-way
bypass surgery and two months of recuperation away from work.
When Adams did return to work, his health required that he stop trav-
eling for business and "cut . . . way back" from the sixty-five-hour
weeks that he had worked previously. In spite of these health-related
2
restrictions, Adams retained his job at Greenbrier Dodge and received
the promotion. Indeed, his employment with that dealership continued
after another round of bypass surgery following his third heart attack
in September 1993.
In November 1994 Greenbrier Chrysler began its efforts to hire
Adams away from the Dodge dealership. Brad Hunt, Greenbrier
Chrysler's vice-president, telephoned Adams to offer him a position
as a new car manager at that dealership's Chrysler division after the
two men had discussions over lunch. Adams, however, was quite sat-
isfied with his position at Greenbrier Dodge, and he declined the
offer. The next day Greenbrier Chrysler's president and 75 percent
owner, Bill Shepard, called Adams and convinced him to discuss the
matter further.
Adams, Shepard, and Hunt then met to discuss the possibility of
Adams becoming the used (rather than new) car sales manager for
Greenbrier Chrysler. After speaking generally about Greenbrier
Chrysler and how long it retains its employees, Shepard and Hunt
offered Adams a position in the company with a salary that nearly
doubled his earnings at the Dodge dealership. When questioned at
trial about this offer, Adams testified that "first and foremost in my
mind . . ., it was a lifetime commitment, . . . it was a job for life. It
would be the last job I ever had." He also testified that Shepard and
Hunt promised to provide health insurance to guarantee that his pre-
existing heart condition would be insured after he changed jobs. Simi-
larly, they agreed that Adams's health would not allow him to work
seventy-hour weeks and that he could not take a lot of pressure at
work. They emphasized that the "main thing" they were interested in
was Adams's "super reputation" and his twenty-four years of experi-
ence in the industry. Adams called Hunt back a few days later to
accept the job.
Adams reconsidered his acceptance, however, after a routine physi-
cal examination. When he told his doctor about the new job and his
expected salary, the doctor responded, "you'll be the richest guy in
the cemetery," adding, "you think anyone's going to pay you that
much money without a ton of crap?" After considering this warning,
Adams met with Hunt to withdraw his acceptance. Adams explained
that selling 400 used cars a month in the Chrysler store involved
3
much more pressure than his job at the Dodge store and that his doc-
tor had convinced him not to accept the job due to his health. More-
over, Adams expressed concern that the Chrysler dealership might
"throw [him] out" if his health declined to the point that he could not
work.
Shepard and Hunt then turned their focus towards hiring Adams for
Greenbrier Olds instead of the larger Chrysler store. As the general
manager of the Olds dealership (and vice-president of both compa-
nies), Hunt asked Steven Deneroff, an old friend of Adams and a sales
manager at the Olds store, to recruit Adams to the Olds store. Shep-
ard, Greenbrier Oldsmobile's president and majority owner, also told
Deneroff that he "should do anything [he could] to get" Adams on
board. Accordingly, Deneroff telephoned Adams in mid-January 1995
to ask him if he would be interested in working for Greenbrier Olds.
Initially, Adams was not interested in further employment discus-
sions, but he agreed to reopen the discussions after Deneroff
explained first that the Olds store was much smaller and would
involve considerably less pressure than the Chrysler store, and second
that Hunt could address Adams's concerns about his health and job
security.
On Friday, January 20, 1995, Adams met with Hunt and Deneroff
to discuss employment with the Oldsmobile dealership. Again, Hunt
agreed to provide Adams insurance, to accommodate his health limi-
tations by allowing him time off when he was tired, and to guarantee
that he would not have to travel on business. Both Adams and Dener-
off testified that Hunt told Adams that "they wanted him there . . . for-
ever." Hunt added that "[w]e want you to become part of the family
and stay . . . [as] long as you want." Finally, Hunt and Deneroff
addressed Adams's concerns about his health and job security by tell-
ing Adams about Brook Mears. Mears had been an employee who
contracted lung cancer after working about seventeen years for the
company. Despite Mears' inability to work, the company paid his full
salary when he was in the hospital and even paid his wife for several
months after his death. Adams was told, "Jack, that's the way we'll
treat you, identical to that." After considering this offer over a week-
end, Adams accepted the position as a new car sales manager and
began work at Greenbrier Olds on January 25, 1995.
4
The new car department at Greenbrier Olds was divided into three
desks, each separately responsible for selling Oldsmobiles, GMCs,
and Volkswagens. Adams started at Greenbrier as the GMC new car
sales manager in late January and served in that position about two
months, or until April 1, 1995. During this period he performed his
job well and attended work regularly. Indeed, Hunt told Adams that
he was "extremely happy" with his performance, and Hunt told
Deneroff that he was "really happy" with Adams's work. During this
period Hunt never personally criticized Adams's performance. Quite
the contrary, Hunt was "extremely pleased" with the GMC sales fig-
ures.
Hunt nevertheless decided to move Adams to the used car sales
desk in late March because of two problems he had been having with
the used car sales manager, Avi Levy. First, Hunt believed that Levy
might be taking kickbacks by selling cars to other dealers for reduced
prices and splitting the difference with the dealer-buyers. Addition-
ally, the new car managers had complained that Levy was providing
low appraisals on potential trade-ins. As a result of these low apprais-
als, new car sales were lost when customers shopped around and
obtained better trade-in values at other dealerships. Because of
Adams's used car experience, Hunt moved him over to share the used
car desk with Levy, asking Adams to look into these problems and
"keep an eye on" Levy.
From April 1 to about July 1, 1995, Adams worked the used car
sales desk with Levy by alternating shifts. Although Adams did not
find evidence of kickbacks, he eliminated any potential problem by
ending the resale of used cars to other dealers. Similarly, Deneroff
testified that appraisals improved with Adams's presence and that he
was able to make "a few extra" new car sales as a result. Adams also
showed initiative in his position. In early April Hunt asked Adams if
there was anything he could do to increase sales. Adams first recom-
mended that Greenbrier take the low-end (under $4,000) used cars
obtained from trade-ins and sell them retail to customers with mar-
ginal credit instead of wholesaling them at auction. After Adams
demonstrated that these cars could be sold with a sufficient profit,
Hunt gave Adams the "green light" to open Greenbrier's budget cen-
ter. Adams's second recommendation involved starting a finance cen-
ter that would enable customers with marginal credit to buy these
5
low-end vehicles and thus boost sales. Hunt pursued this option by
attempting to recruit Steven Jaranto to do the financing work. In dis-
cussing the position, Hunt told Jaranto that he should talk to Adams
about the company because the company had recruited Adams from
a competitor and he now had "a lifetime position with" Greenbrier
Olds. Hunt's discussions with Jaranto broke off, however, when the
principal owner, Shepard, decided to hire Jaranto for the Chrysler
store. Perhaps because Jaranto was not placed at the Olds store,
Adams was not able to open the budget center by the time he was
fired in July.
Adams testified that during his time at the used car desk, Hunt did
not criticize his performance. Although Deneroff testified that Hunt
expressed disappointment in July that the overall level of used car
sales did not increase after Adams's transfer (in April) to used cars,
Deneroff acknowledged that volume is only one factor affecting prof-
itability. Although Adams sold only a few more used cars than Levy,
Adams was able to make more profit out of each sale. Moreover,
Deneroff believed that sales did not increase because Adams and
Levy were not getting along. From the start, Levy resented Adams's
presence at the used car desk, refusing to speak or work with him.
This circumstance was not surprising, however, as other employees
had conflicts with Levy from time to time.
Around July 1, 1995, Hunt again changed Adams's duties so that
his time was divided between new and used cars. This change was
prompted because Deneroff had been working long hours, manning
both the Olds and GMC new car sales desks by himself. To give
Deneroff as well as Levy days off, Adams split his time filling in for
the two of them. Again, Adams testified that Hunt did not criticize
him for his performance after the July job adjustment.
In mid-July, however, Hunt discussed Adams's status with Dener-
off over lunch. He stated that Adams had not done what he had
expected him to do in the used car department. Although Adams had
been moved back to the new car desk half time, Hunt"was really
afraid of putting any pressure on [Adams be]cause of his health" and,
consequently, he "didn't feel that [Adams] could do what he expected
him to do." Hunt then asked Deneroff for suggestions and Deneroff
gave three solutions: (1) transfer Adams to another store or another
6
position, (2) give Adams a position in the used car finance center, or
(3) fire him. Hunt stated that the first option was "definitely out of the
question" because it "wouldn't change . . . their feelings or their liabil-
ity about him." In other words, "his health could not handle [it]."
When Hunt asked Deneroff if he had any objection to putting Adams
back at the new car desk full time, Deneroff told him that he needed
the Olds and GMC desks for himself. No other transfers were pursued
and the second option was not discussed.
On July 19, 1995, Adams entered Hunt's office to ask about possi-
ble vacation time but the issue was never discussed. Instead, Hunt
told him that "we have to part company." He added that Adams was
being fired because both Hunt and Shepard "felt that [his] health
wasn't up to the job" and that the decision "wasn't up for discussion."
No specific reasons were given, and Hunt told Adams to report to the
personnel director. Shocked, Adams left and proceeded to complete
his exit paperwork. One entry asked the reason for leaving work, and
Adams said that he did not know what to write down. The personnel
director asked, "why did [Hunt] fire you?" Adams responded that "he
told me my health wasn't up to the job," so she said "write that in
there." Adams wrote "health," signed the form, and left.
Adams then brought this suit against Greenbrier Olds alleging,
among other things, violations of the ADA and breach of contract.
After Adams had presented his case-in-chief, but before Greenbrier
had presented its case, the district court granted Greenbrier a directed
verdict from the bench. Adams appeals.
II.
The ADA prohibits covered employers from "discriminat[ing]
against a qualified individual with a disability because of the disabil-
ity . . . in regard to . . . [the] discharge of employees." See 42 U.S.C.
§ 12112(a). Consequently, in order to establish a case of discrimina-
tory discharge, the plaintiff must prove that (1) he has a "disability,"
(2) he is a "qualified individual," and (3) his discharge was a result
of discrimination "because of the disability." See id.; Martinson v.
Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997); Tyndall v.
National Educ. Ctrs., Inc., 31 F.3d 209, 212 (4th Cir. 1994). The dis-
trict court ruled that Adams sufficiently established the first two fac-
7
tors, and these rulings are not before us on appeal. 1 We therefore need
only address whether a reasonable jury could find that Greenbrier dis-
criminated against Adams because of his disability. We hold that it
could.
A.
An ADA plaintiff may either prove his case with direct or circum-
stantial evidence, or he may rely on the burden shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Cline
v. Wal-Mart Stores, Inc., 144 F.3d 294, 303 (4th Cir. 1998); see also
Ennis v. National Ass'n of Bus. & Educ. Radio, 53 F.3d 55, 57-59
(4th Cir. 1995) (applying McDonnell Douglas prima facie case analy-
sis to ADA cases). Unless a plaintiff can provide sufficient direct or
circumstantial evidence to raise a genuine issue of material fact as to
intentional discrimination, he must use the McDonnell Douglas proof
scheme to prove his case. See Evans v. Technologies Applications &
Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996). The district court ana-
lyzed this case under the normal standard of proof scheme, while the
parties' briefs to us focus on the McDonnell Douglas framework. This
difference need not delay us, however, because once the case is tried
on the merits, we look only to the ultimate question of whether the
plaintiff sufficiently proved that intentional discrimination occurred.
See Jiminez v. Mary Washington College, 57 F.3d 369, 377 (4th Cir.
1995). Where, as here, the trial proceeded through the plaintiff's case-
in-chief, we simply analyze the case as if the defense rested without
presenting any evidence. Accordingly, we must determine if a reason-
able jury could conclude from all the evidence that Adams's termina-
tion was the result of discrimination on the basis of his disability.
_________________________________________________________________
1 Although Greenbrier says in a brief footnote in its brief that the dis-
trict court erred in ruling that Adams had sufficiently established his dis-
ability under the Act, Greenbrier abandoned this contention by failing to
develop it on appeal. See 11126 Baltimore Blvd., Inc. v. Prince George's
County, 58 F.3d 988, 993 n.7 (4th Cir. 1995) (en banc); see also Fed. R.
App. P. 28(a)(6), (b). Further, we decline to exercise our discretion to
reach the issue here. Cf. Curry v. Beatrice Pocahontas Coal Co., 67 F.3d
517, 522 (4th Cir. 1995) (holding that this "rule[of avoiding issues not
raised] is not an absolute one and review may proceed [sua sponte] when
the equities require").
8
B.
The district court concluded that a reasonable jury could not find
for Adams because the court believed that the strong inference of
nondiscrimination recognized by this court in Proud v. Stone, 945
F.2d 796 (4th Cir. 1991), applied to this case. The district court ruled
that when Adams's evidence of discrimination was viewed in light of
the Proud inference, Adams's case could not go to a jury. We hold
that the court erred in so ruling.
In Proud, an age discrimination case, we recognized a "strong
inference . . . that discrimination was not a determining factor" in a
discharge decision when (1) the person who hired the plaintiff knew
of the plaintiff's protected condition when the hiring decision was
made, (2) the person who hired the plaintiff also fires him (3) within
a "relatively short time span following the hiring," and (4) the
employer advances a legitimate and nondiscriminatory reason for the
discharge. See id. at 796, 797-98. We reasoned that "`[i]t hardly
makes sense [for an employer] to hire workers from a group [it] dis-
likes . . ., only to fire them once they are on the job." Id. at 797. If
discrimination actually motivated the adverse employment action, the
same discrimination most likely would have also affected the employ-
er's original decision to hire the plaintiff. However, because the
employer did in fact hire the plaintiff, it is unlikely that discrimination
existed either when the plaintiff was hired or shortly thereafter when
he was fired. The existence of a legitimate, nondiscriminatory reason
for the later decision (the firing) thus creates a compelling inference
that this decision was not motivated by discrimination. See id. at 798
(Proud's "strong inference [is] that the employer's stated reason for
acting against the employee is not pretextual").
Since Proud we have extended the "same actor inference" from its
original context of age discrimination to other forms of discrimina-
tion, including discrimination on the basis of an ADA-protected dis-
ability. See Tyndall v. National Educ. Ctrs., Inc., 31 F.3d 209, 214-15
(4th Cir. 1994) (ADA disability discrimination); see also, e.g.,
DeJarnette v. Corning Inc., 133 F.3d 293, 298 (4th Cir. 1998) (Preg-
nancy Discrimination Act); Evans v. Technologies Applications &
Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (Title VII gender discrimi-
nation); Amirmokri v. Baltimore Gas & Elec. Co. , 60 F.3d 1126, 1130
9
(4th Cir. 1995) (Title VII national origin discrimination); Mitchell v.
Data General Corp., 12 F.3d 1310, 1318 (4th Cir. 1993) (Age Dis-
crimination in Employment Act).
The Proud inference, however, loses its force when the plaintiff
presents sufficiently compelling evidence of discrimination. See, e.g.,
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 513 (4th Cir. 1994);
Proud, 945 F.2d at 798. Indeed, the presumption is rebutted when the
reason the employer gives for the adverse action is discriminatory on
its face. Cf. Madel v. FCI Marketing, Inc., 116 F.3d 1247, 1253 (8th
Cir. 1997) (Proud inference as applied in Lowe v. J.B. Hunt Transp.,
Inc., 963 F.2d 173, 174-75 (8th Cir. 1992), does not apply when
plaintiff presents evidence of overt discrimination in form of deroga-
tory comments about age). In this case Hunt told Adams that he was
being terminated because his "health wasn't up for the job." This
direct evidence would allow a jury to conclude that the reason pro-
vided by Hunt was the true reason for Adams's termination without
having to infer from other facts that discrimination motivated the fir-
ing. Unlike most statements seen in disability cases, Hunt's words do
much more than simply refer to Adams's disability in a negative light.
They specifically identify Adams's disability as the reason for the
challenged termination. In these circumstances, the Proud inference
drops out of the case. In short, the district court should have allowed
the jury to weigh the credibility of the witnesses and assess the evi-
dence as a whole to determine if discrimination motivated Adams's
termination.
Had the court sent the case to the jury, it is clear that the evidence
presented was sufficient to allow a reasonable jury to find that Hunt
fired Adams because of his heart condition.
Most damning is Adams's testimony that Hunt fired him by
explaining that they would "have to part company" because both Hunt
and Shepard "felt that [Adams's] health wasn't up to the job." This
statement is tantamount to an admission that the reason that Adams
was fired was because of his disability.
Moreover, this testimony does not stand alone. It is supported both
by documentary evidence and by the testimony of Deneroff. When
Adams went to Greenbrier's personnel director to complete paper-
10
work immediately after being terminated, he testified that he asked
what he should write down as the reason for his termination. After he
told the director what Hunt said to him, he was instructed to write that
on the form, and he wrote "health." This exit interview form was
admitted into evidence.
Deneroff's testimony also supports Adams's case. He testified that
in the week prior to Adams's termination, Hunt told him that although
Adams did not do what he expected him to do in the used car depart-
ment, he was "really afraid of putting pressure on [Adams be]cause
of his health." In response to Hunt's request for suggestions, Deneroff
gave Hunt several ways to address Hunt's concerns short of termina-
tion. Deneroff testified that Hunt said the option of moving Adams to
another dealership was "[d]efinitely out of the question" because it
"wouldn't change . . . their feelings or their liability about him" and
"his health could not handle that." Deneroff further explained that "li-
ability" referred to liability for Adams's health. A jury could reason-
ably take these statements as reflecting Hunt's view that Adams's
health would not enable him to perform in these positions. Although
Deneroff told Hunt that he did not want to share more of his own
work with Adams, the general option of transferring Adams to a dif-
ferent position in the same dealership was not discussed. Hunt simi-
larly ignored Deneroff's suggestion that Adams be moved into a new
position in Greenbrier's used car finance department.
Taken together, this evidence would allow a reasonable jury to
conclude that Adams was fired because of his disability. The evidence
suggests that Adams's job performance at Greenbrier was good and
that he had no disciplinary problems. Even assuming that Hunt
wanted a better performance out of Adams, Deneroff's testimony sug-
gests that Hunt's fear of pressuring Adams because of his health led
to Adams's termination. A jury could also conclude that Hunt's fail-
ure to consider Deneroff's other suggestions reflected that Hunt had
made up his mind that Adams's employment could not continue
because his disability prevented him from doing what was expected
of him.
Accordingly, we hold that the district court erred in granting a
directed verdict for Greenbrier on Adams's ADA claim.
11
III.
In addition to his federal ADA claim, Adams argues that the dis-
trict court erred in granting Greenbrier a directed verdict on his state
law contract claim. The district court ruled that Adams's alleged oral
lifetime employment contract was unenforceable because it fell within
Virginia's statute of frauds, Va. Code Ann. § 11-2(8) (Michie 1993).
Alternatively, the court held that the evidence was too vague and
indefinite to prove a lifetime employment contract under Virginia
law. While Adams is correct that the statute of frauds does not bar his
claim, we agree with the district court that the evidence presented at
trial is insufficient to prove the contract.
A.
Virginia's statute of frauds provides that an oral contract "that is
not to be performed within a year" is generally unenforceable. See Va.
Code Ann. § 11-2(8); Murphy v. Nolte & Co. , 307 S.E.2d 242, 245
(Va. 1983). However, when a contract "by its terms, or by reasonable
construction, . . . can be fully performed on one side within a year,"
"the contract is not within the statute [of frauds] and need not be in
writing." Silverman v. Bernot, 239 S.E.2d 118, 121 (Va. 1977). This
is true even though the possibility of performance under the contract's
own terms is due solely to the "occurrence of some improbable event,
[such] as the death of the person referred to[in the agreement]." Id.;
see also Falls v. Virginia State Bar, 397 S.E.2d 671, 672-73 (Va.
1990) (contract is enforceable if it "expressly provide[s] that the
occurrence of [such an event] would constitute full performance"). So
long as a contract specifies that it will stay in force for the lifetime
of an individual, the contract falls outside the statute of frauds. In
such cases, performance (employment services for the employee's
life) will be complete upon the employee's death. Because the
employee may die at any time, full performance is possible within one
year and the statute of frauds is inapplicable. 2
_________________________________________________________________
2 The fact that a party to an oral contract may die within one year is
insufficient by itself to save the agreement in the absence of a contractual
term measuring the duration of the contract by the party's life. See Falls,
397 S.E.2d at 673. Even though the contract will necessarily terminate
by operation of law upon the party's death, termination by operation of
law is not "performance" within the meaning of the statute of frauds. See
id. at 672-73; Graham v. Central Fidelity Bank, 428 S.E.2d 916, 918
(Va. 1993).
12
In this case, Adams maintains that he had an oral employment con-
tract with Greenbrier lasting for his lifetime and that he has presented
evidence to support this claim. Because such a contract is not barred
by the statute of frauds, we agree with Adams that the district court
erred in relying on the statute in granting Greenbrier a directed verdict
on his contract claim.3
B.
Although Adams clears the first hurdle to his lifetime employment
claim, the evidence presented at trial cannot get him over the second.
Because we agree with the district court that Adams's evidence is
insufficient to establish a lifetime employment contract under Vir-
ginia law, we affirm the directed verdict on the breach of contract
claim.
In Virginia, "where no specific time is fixed for the duration of the
employment, there is a rebuttable presumption that the hiring is termi-
nable at will." Miller v. Sevamp, Inc., 362 S.E.2d 915, 917 (Va.
1987); see also Progress Printing Co. v. Nichols , 421 S.E.2d 428, 429
& n.1 (Va. 1992) (at-will presumption is that "the employment term
extends for an indefinite period and may be terminated for any reason
upon reasonable notice" subject only to narrow public policy excep-
tions). Because a lifetime employment contract, like a contract termi-
nable only for cause, sets a definite term for the duration of the
employment (that is, the life of the worker), it will rebut the at-will
presumption. Cf. Progress Printing, 421 S.E.2d at 430 (contract ter-
minable by cause rebuts presumption). The question, then, is whether
Adams's evidence of a lifetime employment contract is sufficient to
reach a jury.
Adams fails to cite to a single Virginia case involving a lifetime
employment contract, and our independent review of Virginia law has
found only one such opinion. See Harvey v. Richmond, Fredericks-
burg & Potomac Ry., 173 S.E. 351, 353 (Va. 1934) (affirming exclu-
sion of testimony on oral lifetime employment contract on ground that
_________________________________________________________________
3 Because we conclude that the statute of frauds does not apply to
Adams's claim, we need not address Adams's argument that Greenbrier
is equitably estopped from asserting the statute as an affirmative defense.
13
employee could not establish that he provided any consideration for
this contract in addition to his provision of services). Because the
Harvey decision does not discuss the quantum of evidence necessary
to establish an employment contract for life, however, it appears that
the Virginia courts have not yet spoken on the question before us.
Even without direct guidance, we must attempt to"ascertain from all
the available data what the state law is." West v. AT&T, 311 U.S. 223,
237 (1940); see also Orchard Group, Inc. v. Konica Med. Corp., 135
F.3d 421, 427 (6th Cir. 1998) (federal courts may look to sources
including restatements of law, law reviews, and majority rules among
other states); Packard v. Provident Nat'l Bank , 994 F.2d 1039, 1049
(3d Cir. 1993) (courts may look to majority rule from other states);
Helene Curtis Indus., Inc. v. Pruitt, 385 F.2d 841, 848 (5th Cir. 1967)
(similar to Orchard Group); Glassman Const. Co. v. Fidelity & Cas.
Co., 356 F.2d 340, 342 n.7 (D.C. Cir. 1966) (same).
The Supreme Court of Virginia has generally stated that "[w]here
the evidence concerning the terms of a contract is in conflict, the
question [of] whether the contract is at will or for a definite term
becomes one of fact for resolution by a jury." Miller, 362 S.E.2d at
917. However, if a jury could not reasonably conclude that the
employment was for a definite term, the suit may be dismissed. See
id. at 918. A lifetime contract cannot be found here because we
believe that the Virginia Supreme Court would require a plaintiff to
make a heightened showing in proving the existence of an employ-
ment contract for life. Cf. Roe v. Doe, 28 F.3d 404, 407 (4th Cir.
1994) (in absence of state law on point, federal court "attempts to do
as the state court would do if confronted with the same fact pattern").
Commentators state that most jurisdictions require that a contract
of permanent or lifetime employment must be clearly, specifically,
and unequivocally expressed. See 30 C.J.S. Employer-Employee
Relationship § 23, at 43 (1992); 9 Williston on Contracts § 1017, at
132 (1967); James J. O'Malley, Cause of Action for Wrongful Dis-
charge from Employment in Breach of Contract§ 9, in 18 Causes of
Action 229, 280 (1989); see also, e.g., Wright v. Dothan Chrysler
Plymouth Dodge, Inc., 658 So.2d 428, 430 (Ala. 1995) ("clear and
unequivocal" offer needed with additional consideration for contract);
Shebar v. Sanyo Bus. Sys. Corp., 544 A.2d 377, 381, 382 (N.J. 1988)
(contract terms must be "`clearly and unequivocally expressed'");
14
Williamson v. Sharvest Management Co., 415 S.E.2d 271, 274
(W.Va. 1992) (offer must be in "clear and unequivocal terms").
Because of the extraordinary nature of lifetime employment contracts,
we believe Virginia would adopt the majority view and require such
a showing.
Although Adams indicated that he was told that his job was a "job
for life," we believe this is insufficient in the context of his entire tes-
timony. All of Adams's testimony regarding the duration of his con-
tract is qualified by statements such as "I felt that . . . it [would] be
forever" and "in my mind . . . it was a job for life." Because such testi-
mony expresses Adams's subjective opinion rather than objective
statements that are attributable to Greenbrier, it falls short of the clear
and unequivocal evidence needed to establish lifetime employment.
Besides his own testimony, Adams heavily relies on Deneroff's testi-
mony that Hunt told Adams that he wanted Adams there forever and
that Adams could stay as long as he wanted. However, Deneroff
explained on cross-examination that Hunt told him the same thing
when he was recruited and that Greenbrier "has the reputation of
retaining its sales managers if they perform." Consequently, Hunt's
statements are best viewed as expressions of a general expectation
and not of an intent to create a lifetime contract. Finally, Adams
admits that he has never heard of another lifetime employment con-
tract in his twenty-four years in the industry. Taken as a whole, the
evidence does not demonstrate a clear, definite, and unequivocal
intent to create a lifetime employment contract, even when viewed in
the best light for Adams. We therefore affirm the district court's grant
of a directed verdict to Greenbrier on Adams's contract claim.
IV.
For the reasons above, we conclude that the district court correctly
granted Greenbrier's motion for judgment as a matter of law on
Adams's claim of breach of contract. However, because judgment as
a matter of law was inappropriate for Adams's ADA claim, we
reverse and remand for a new trial on that claim.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
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