Shirley M. Johnson v. Airbus Defense & Space Inc.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-11424

Non-Argument Calendar

________________________

D.C. Docket No. 5:17-cv-02150-LCB

SHIRLEY M. JOHNSON,

TENEA R. STODDARD,

JILL K. RANES,

Plaintiffs-Appellants,

versus

AIRBUS DEFENSE & SPACE INC,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(May 26, 2021)

Before MARTIN, BRANCH, and LAGOA, Circuit Judges.

LAGOA, Circuit Judge:

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Shirley Johnson, Tenea Stoddard, and Jill Ranes (collectively, “Plaintiffs”)

filed this action against Airbus Defense & Space, Inc. (“ADSI”), for sex

discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), see 42

U.S.C. § 2000e-2(a), and for breach of contract. They now appeal the district court’s

order granting summary judgment in favor of ADSI on their claims. Finding no

reversible error, and for the reasons stated below, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

In 2006, the United States Army awarded ADSI, an aerospace company based

in Huntsville, Alabama, a ten-year contract to deliver light utility helicopters known

as Lakota helicopters. By 2016, no longer needing employees in Huntsville with the

wrap-up of the ten-year contract, ADSI transitioned the remaining projects to an

affiliate company, Airbus Helicopters, Inc. (“AHI”), with various locations across

the south, including Texas. Prior to the transition, AHI President Mike Cosentino

and AHI Director of Human Resources Genevieve Findlay engaged in several

discussions with ADSI employees about what they could expect as the transition

commenced. Plaintiffs, who were at-will employees of ADSI, were promised

several times by Cosentino and Findlay either substantially similar positions at AHI

or a severance payment. For the employee to be offered severance payment, he or

she must have been offered a position at AHI that met one of the three following

conditions: (1) the job required an immediate change in location; (2) the job included

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substantially lesser pay; or (3) the job constituted substantially lesser status. Findlay,

a female, made the decision regarding who received severance payment based on

these three factors.

Thirteen ADSI employees were laid off during the contract wind-down and

transition, but AHI offered each of the three Plaintiffs a position. And each was

allegedly assured she would not be required to relocate from Huntsville, at least for

the first year. However, ADSI made clear that the managers at AHI reserved the

right to move the positions to Texas or Mississippi. Even if that were to occur,

however, Cosentino and Findlay stated that an employee could prove that his or her

role could be done remotely from Huntsville. This promise of being able to remain

in Huntsville is the basis of Plaintiffs’ Title VII and breach-of-contract claims. In

addition to this oral offer by Cosentino and Findlay, in early December 2016, each

of the three Plaintiffs also received offer letters from AHI. The letters expressly

stated that “the position at the current time will remain in Huntsville, [and] [o]ver

the course of 2017 a determination will be made regarding the future working

location of this position.”

Consistent with the three factors articulated above and subject to Findlay’s

discretion, AHI did not offer the Plaintiffs severance payments because AHI offered

each of the three Plaintiffs a position with the same salary, with “many similarities

in the job,” and a promise to remain in Huntsville for twelve months. After AHI

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informed each of the Plaintiffs accordingly, Johnson and Stoddard each declined the

position at AHI because they believed they ultimately would be required to relocate.

Ranes, on the other hand, conditionally accepted the position with AHI if AHI

allowed her to remain in Huntsville permanently. In February 2017, AHI informed

Ranes that she would be required to relocate to Texas or Mississippi following the

twelve-month period, or January 2018. Ranes rescinded her acceptance and inquired

about the possibility of receiving a severance payment.

Each of the Plaintiffs completed the terms of their employment with ADSI

before leaving the company, and each believed that, once they left ADSI, that would

trigger their right to a severance payment. They claim that they later learned of an

alleged sex discrepancy in the payout of severance payments i.e., that male

employees received severance packages because they were either not offered

positions at AHI or were offered positions that were not equal in pay, status, or would

require them to relocate. And, because no woman received a severance package,

Plaintiffs believe that the motivation for denying them severance was based on sex.

Plaintiffs filed a two-count action against ADSI for its refusal to offer them

severance payment, alleging one count for sex discrimination under Title VII and

one count for breach of contract. As the basis of their claims, Plaintiffs alleged that,

although they were offered employment with AHI, the positions were not

“substantially similar” because they were required to relocate outside of Huntsville,

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and that, consequently, they were entitled to severance pay. Plaintiffs sought a

declaratory judgment, back pay, compensatory and punitive damages, and attorney’s

fees and costs.

Following discovery, ADSI moved for summary judgment. It argued that

Plaintiffs could not make a prima facie case for sex discrimination because each

Plaintiff had been offered one year of equivalent employment in Huntsville by AHI

and, thus, had suffered no adverse employment action. Further, it argued that

Plaintiffs had not, and could not, show a similarly-situated comparator, as they did

not share a job title with any other employee. And, in any event, ADSI argued that

it had a legitimate, non-discriminatory reason for not offering the plaintiffs

severance pay: Findlay, a female decisionmaker, had the discretion to determine

whether the AHI positions were substantially similar to their positions at ADSI.

With respect to Plaintiffs’ breach-of-contract claim, ADSI argued that

Plaintiffs were at-will employees who could have been terminated at any time and

that any statements regarding severance payments did not change that employment

contract. In its view, the severance discussions happened in the context of company-

wide meetings, not as any individualized agreements for severance between ADSI

and Plaintiffs. Even if a contract existed, ADSI argued that there was no breach of

contract because Plaintiffs were all offered substantially similar positions at AHI and

declined, causing them to not be entitled to severance under ADSI’s criteria.

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In response to ADSI’s motion for summary judgment, Plaintiffs submitted the

affidavit of Dale McElyea, Director of Contracts for the Lakota program at ADSI

and Johnson’s and Ranes’s supervisor. McElyea attested that Cosentino and

Findlay, at two separate meetings, had informed the Huntsville employees that if

AHI did not offer the same jobs in Huntsville, the employees would receive

severance packages. McElyea received a job offer from AHI for a position that was

not equivalent to his position at ADSI with the same base salary. He declined the

offer and received a severance package from ADSI. He also attested that he asked

Cosentino why Johnson and Ranes were not receiving severance when they had been

told that a change in location would trigger a right to severance, and Cosentino

simply replied that he was not paying severance. ADSI then moved to strike

McElyea’s affidavit under Federal Rule of Civil Procedure 37, arguing that Plaintiffs

did not disclose McElyea as a witness during discovery and that it was prejudiced

from this nondisclosure.

The district court granted ADSI’s motion for summary judgment and motion

to strike McElyea’s affidavit. As to Plaintiffs’ sex-discrimination claim, applying

the McDonnell Douglas1 framework, the district court agreed that, construing the

facts in the light most favorably to Plaintiffs, ADSI denying severance payment

could be an adverse employment action. However, it concluded that Plaintiffs had

1

See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

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failed to present evidence that ADSI treated similarly situated male employees more

favorably. Specifically, the district court found that the male employees who had

received severance were not adequate comparators because Plaintiffs had not shown

that those men (1) were offered an “equivalent” position with AHI (as determined

by ADSI), (2) rejected the offer, and (3) then were offered a severance package.2

The district court also found that Plaintiffs failed to present evidence of a

“convincing mosaic” to warrant an inference of intentional discrimination, noting

that they had only shown a few random sexist remarks by male employees that, while

inappropriate, did not rise to the level of discrimination in this case.

Next, the district court found that ADSI had offered a legitimate, non-

discriminatory reason for denying the Plaintiffs severance: Findlay had determined

that their AHI offers were equivalent in status and pay, and the positions would be

located in Huntsville for an initial period of time. The district court further

determined that Plaintiffs had not, and could not, show that the reason was pretext

for discrimination. It noted that whether a position with AHI was equivalent to the

current position was within ADSI’s—not Plaintiffs’—discretion and that, while

Plaintiffs may have believed that ADSI exercised its discretion unfairly in their

2

We note that the district court did not name these male employees. However, we assume

it was referring to Terry Aiken, Jeff Davies, and Roger “Dale” McElyea, the three men who were

offered severance because their AHI offers resulted in a demotion in status.

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individual cases, they failed to come forward with evidence that ADSI had applied

the policy differently to men and women.

As to ADSI’s motion to strike McElyea’s affidavit, the district court found

that Plaintiffs failed to satisfy their duty under Federal Rule of Civil Procedure 26(a)

to disclose McElyea as a witness. The district court rejected Plaintiffs’ argument

that the nondisclosure was harmless because ADSI was aware of who McElyea was,

instead finding that ADSI’s inability to depose McElyea prejudiced ADSI.

Finally, the district court chose to exercise supplemental jurisdiction over

Plaintiffs’ claim for breach of contract, noting that their employment was at-will and

that there was undisputed testimony that Plaintiffs all understood their employment

as such. The district court found that Plaintiffs had not cited to any authority for the

proposition that a supervisor’s statements indicating that severance may be available

constituted a binding contract apart from their at-will employment status.

After the district court entered judgment in favor of ADSI, Plaintiffs timely

filed this appeal.

II. ANALYSIS

On appeal, Plaintiffs raise three issues. First, they argue the district court

abused its discretion by striking McElyea’s affidavit. Next, they argue the district

court did not apply the proper legal framework in concluding that they failed to

establish a prima facie case of sex discrimination. Finally, they argue the district

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court erred in finding that ADSI’s representations concerning severance payments

did not constitute an enforceable contract. We discuss each argument in turn.

A. ADSI’s Motion to Strike Plaintiffs’ Witness McElyea’s Affidavit

We review a district court’s rulings on discovery matters, including a motion

to strike evidence, for abuse of discretion. Benson v. Tocco, Inc., 113 F.3d 1203,

1208 (11th Cir. 1997). A district court has broad discretion over discovery, and we

will not reverse the court’s decision “unless a clearly erroneous principle of law is

applied, or no evidence rationally supports the decision.” Hancock v. Hobbs, 967

F.2d 462, 468 (11th Cir. 1992) (quoting Moore v. Armour Pharm. Co., 927 F.2d

1194, 1197 (11th Cir. 1991)).

Rule 26 requires a party to disclose “each individual likely to have

discoverable information” and imposes an on-going duty to supplement or correct

such disclosures. Fed. R. Civ. P. 26(a), (e). If a party fails to comply with the

disclosure requirements of Rule 26, then it is not allowed to use the undisclosed

information or witness as evidence on a motion unless the failure to disclose “was

substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In determining

whether an undisclosed witness should be excluded under Rule 37(c), courts

typically consider “the explanation for the failure to disclose the witness, the

importance of testimony, and the prejudice to the opposing party.” Romero v.

Drummond Co., 552 F.3d 1303, 1321 (11th Cir. 2008) (quoting Fabrica Italian

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Lavorazione Materie Organiche, S.A.S. v. Kaiser Aluminum & Chem. Corp., 684

F.2d 776, 780 (11th Cir. 1982)).

Plaintiffs’ only explanation for the untimely disclosure of McElyea is that they

learned of “new information”3 at Cosentino’s deposition and needed to rebut it

through McElyea’s affidavit testimony. In other words, they insist they did not

realize McElyea might be a necessary witness until the deposition of Cosentino on

May 30, 2019. This explanation is implausible. Cosentino’s deposition preceded

both the discovery deadline of June 28, 2019, and the dispositive-motion deadline

of July 31, 2019. Plaintiffs had ample opportunity to disclose McElyea timely but

did not do so until August 30, 2019. They offer no other excuse for their delay, and

we are otherwise aware of none.

Plaintiffs also seem to indicate they were not required to disclose McElyea

because he was a rebuttal witness, relying on United States v. Mayer, No. 8:03-cv-

415-T-26TGW, 2004 U.S. Dist. LEXIS 31610, at *7 (M.D. Fla. Sept. 14, 2004).

But, besides the fact that this argument is unsupported by the Federal Rules of Civil

Procedure, Mayer does not support this argument. Even further, we find Mayer

distinguishable because, there, the need for the declarant’s testimony was not known

before summary judgment. However, here, Plaintiffs do not dispute they knew of

3

Specifically, Plaintiffs claim they learned that Cosentino intended to deny that he was the

individual who decided that Plaintiffs would not receive severance.

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the need for McElyea’s declaration before summary judgment; they knew of the

need before discovery even closed. They just waited to disclose McElyea. And, in

Graley v. TZ Insurance Solutions, No. 2:14-cv-636-FtM-CM, 2016 U.S. Dist.

LEXIS 118893 (M.D. Fla. Sept. 2, 2016), the unpublished district court order

Plaintiffs cite to, the plaintiff had previously disclosed the name of the declarant in

responses to interrogatories nearly a year earlier. Therefore, Graley is inapplicable

to the extent the defendant knew of the witness for over a year.

Plaintiffs offer no other case that would persuade us to disrupt the broad

discretion of the district court. In any event, to the extent the district court’s decision

to strike McElyea could be considered error, it was harmless. Nothing in his

affidavit would have overcome ADSI’s entitlement to summary judgment. While

he attested that he received a severance package from ADSI, it was after being

offered a position that was not equivalent to his position at ADSI. In other words,

McElyea still would not have served as a comparator for Title VII purposes.

Accordingly, the district court did not abuse its discretion in granting ADSI’s motion

to strike.

B. ADSI’s Motion for Summary Judgment

We now turn to Plaintiffs’ arguments concerning the grant of summary

judgment in favor of ADSI. We review de novo a district court’s grant of summary

judgment, using the same legal standards applied by the district court. Alvarez v.

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Royal Atl. Devs., Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). “We will affirm if,

after construing the evidence in the light most favorable to the non-moving party,

we find that no genuine issue of material fact exists and the moving party is entitled

to judgment as a matter of law.” Id. at 1263–64.

1. Sex-Discrimination Claim Under Title VII

Title VII prohibits intentional discrimination against an employee “because

of,” among other things, sex. 42 U.S.C. § 2000e-2(a)(1). A prima facie claim for

sex discrimination under Title VII requires a plaintiff to show that: (1) she is a

member of a protected class; (2) she was subjected to an adverse employment action;

(3) she was qualified for the job; and (4) her employer treated similarly situated

employees outside the protected class more favorably. Lewis v. City of Union City,

918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). The fourth prong is oftentimes

referred to as a “comparator.” See id. at 1217.

Where a plaintiff supports her Title VII claim with circumstantial evidence,

we apply the three-step, burden-shifting framework established by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the

plaintiff bears the initial burden of presenting evidence sufficient to establish a prima

facie case of discrimination. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1174,

1181 (11th Cir. 2010). If she can establish a prima facie case, the burden then shifts

to the employer to articulate a legitimate, non-discriminatory reason for its actions.

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McDonnell Douglas, 411 U.S. at 802. The employer must clearly explain the

reasons for its actions but need not persuade the court that it was actually motivated

by its proffered reasons. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254

(1981).

Finally, if the employer can articulate one or more legitimate, non-

discriminatory reasons for its actions, the burden shifts back to the plaintiff to show

that the reason offered by the employer was mere pretext. McDonnell Douglas

Corp., 411 U.S. at 804. To show pretext, a plaintiff must specifically respond to the

employer’s proffered reason and produce evidence directly rebutting that reason.

Crawford v. City of Fairburn, 482 F.3d 1305, 1309 (11th Cir. 2007). A plaintiff can

show that an employer’s reasons are pretext “by revealing ‘such weaknesses,

implausibilities, inconsistencies, incoherencies or contradictions in [its] proffered

legitimate reasons for its actions that a reasonable factfinder could find them

unworthy of credence.” Springer v. Convergys Customer Mgmt. Grp., 509 F.3d

1344, 1348 (11th Cir. 2007) (quoting Cooper v. S. Co., 390 F.3d 695, 725 (11th Cir.

2004)). If the proffered reason is one that would motivate a reasonable employer, a

plaintiff cannot simply quarrel with the wisdom of the employer’s decision.

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). A proffered reason

cannot “be ‘a pretext for discrimination’ unless it is shown both that the reason was

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false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 515 (1993) (emphasis omitted) (quoting Burdine, 450 U.S. at 258).

Here, the district court granted ADSI summary judgment, finding no genuine

dispute that Plaintiffs could not make a prima facie case—specifically, their inability

to identify a similarly-situated comparator whom ADSI treated more favorably.

Plaintiffs argue this was error because they offered evidence of seven males to whom

ADSI offered severance payment. We agree with the district court that these

individuals were not “similarly situated” for Title VII purposes.

A comparator must be “similarly situated in all material respects.” Lewis, 918

F.3d at 1226. Stated otherwise, the plaintiff and comparators must be “sufficiently

similar, in an objective sense, that they ‘cannot reasonably be distinguished.’” Id.

(quoting Young v. United Parcel Serv., Inc., 575 U.S. 206, 231 (2015)). While

formal labels regarding job title are not necessary, a similarly situated comparator

will ordinarily have engaged in the same basic conduct as the plaintiff and been

subject to the same employment policy, guideline, or rule. Id. at 1227–28.

In finding the individuals that Plaintiffs identified were not proper

comparators, the district court explained that a similarly-situated comparator would

be a male who (1) was offered an equivalent position with AHI, (2) rejected the

offer, and (3) then had been offered a severance package. The record evidence

shows that Plaintiffs did not come forward with any evidence of anyone who met

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this standard. And Plaintiffs did not present any evidence that ADSI applied the

criteria used to determine severance any differently, inequitably, or discriminately

to these male employees. Therefore, Plaintiffs did not show any male employee who

received an equivalent job offer, rejected that offer, and was offered severance. Yet,

on appeal, they contend they offered these seven males who were “subject to the

same layoff as Plaintiffs.” But the record evidence is clear Plaintiffs were never

actually laid off; they rejected the employment offer from ADSI-to-AHI and

completed their employment terms before leaving the company voluntarily. The

district court thus properly determined Plaintiffs failed to make a prima facie case.

Alternatively, even if a plaintiff cannot establish a prima facie case of

discrimination under the McDonnell Douglas framework, she can nevertheless

survive summary judgment if she can “present[] circumstantial evidence that creates

a triable issue concerning the employer’s discriminatory intent.” See Smith v.

Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Under the Smith

framework, “[a] triable issue of fact exists if the record, viewed in a light most

favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence

that would allow a jury to infer intentional discrimination by the decisionmaker.”

Id. (footnote omitted) (quoting Silverman v. Bd. of Educ., 637 F.3d 729, 733 (7th

Cir. 2011)). A plaintiff may establish a “convincing mosaic” by pointing to evidence

that demonstrates (1) suspicious timing, ambiguous statements, or other information

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from which discriminatory intent may be inferred, (2) systematically better treatment

of similarly-situated employees, and (3) pretext. Lewis v. City of Union City, 934

F.3d 1169, 1185 (11th Cir. 2019).

Plaintiffs argue that they showed a “convincing mosaic” by presenting the

following circumstantial evidence: (1) ADSI applying an employment policy

unequally to men and women so that all men received severance and women did not;

(2) ADSI denying severance payment even when the women met the criteria to make

them eligible; (3) ADSI engaging in inappropriate behavior toward women in the

workplace, shown by one of the individuals involved in the discussions regarding

layoffs and severance; and (4) ADSI lying about whether all of the affected women

received severance. The problem with this argument is that it is mostly unsupported

by the record evidence. For instance, Plaintiffs did not “meet the criteria to make

them eligible for the severance payment.” Again, Plaintiffs were offered positions

to remain in Huntsville for twelve months; the requirement to receive severance

payment was an immediate relocation. Further, there is no support in the record

evidence that ADSI lied about whether women were paid severance.

We agree with ADSI’s argument that Plaintiffs’ so-called circumstantial

evidence is largely based on their disagreement with ADSI’s business judgment.

This Court has rejected similar business-judgment quarrels in the past. See

Chapman, 229 F.3d at 1030 (“[T]he employee cannot succeed by simply quarreling

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with the wisdom of that reason.”). ADSI makes the point that courts do not sit as

“super-personnel departments,” reexamining the wisdom of business decisions.

Again, we agree. See id.

Because Plaintiffs failed to make a prima facie case and did not present a

convincing mosaic of circumstantial evidence, ADSI was entitled to summary

judgment on Plaintiffs’ Title VII claim. Nevertheless, for the sake of completeness,

we discuss the next step of the McDonnell Douglas framework, i.e., whether ADSI

was able to articulate one or more legitimate, non-discriminatory reasons for its

action. 4

ADSI’s proffered reason not to offer the Plaintiffs severance payment is

because they had, indeed, been offered functionally equivalent positions at AHI.

The record evidence supports this. Each of the three Plaintiffs was offered a position

with AHI that was comparable in pay and position, and it allowed each to remain in

Huntsville for at least twelve months. The discretion AHI retained to determine

whether a relocation would take place after twelve months is something well within

the realm of their business judgment. In any event, two of the three Plaintiffs

4

We note that ADSI was not required to do so here because Plaintiffs were not able to

establish a prima facie case under McDonnell Douglas or a convincing mosaic of circumstantial

evidence. Thus, the burden never shifted to ADSI to offer this legitimate, non-discriminatory

reason.

We also note, however, “the employer’s burden is merely one of production; it ‘need not

persuade the court that it was actually motivated by the proffered reasons.”” Chapman, 229 F.3d

at 1024 (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)).

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rejected the job offer and one rescinded her acceptance after speculating she would

be required to relocate after one year. Not only did ADSI offer legitimate, objective

criteria to determine who was, and who was not, entitled to severance payment, it

proved there was no genuine dispute that Plaintiffs were never even entitled to the

severance—they were offered employment with AHI and they voluntarily rejected

it.

The district court properly entered summary judgment in favor of ADSI on

Plaintiffs’ Title VII claim. Accordingly, we affirm.

2. Breach-of-Contract Claim

Next, we turn our attention to Plaintiffs’ claim for breach of contract. The

party attempting to establish a breach-of-contract claim bears the burden of proving

the existence of a valid, enforceable contract. Southland Bank v. A & A Drywall

Supply Co., Inc., 21 So. 3d 1196, 1203 (Ala. 2008). Under Alabama law, a valid,

enforceable contract requires the following irreducible elements: “an offer, an

acceptance, consideration, and mutual assent to terms essential to the contract.”

Mantiply v. Mantiply, 951 So. 2d 638, 656 (Ala. 2006) (quoting Steiger v. Huntsville

City Bd. of Educ., 653 So. 2d 975, 978 (Ala. 1995)).

Plaintiffs argue that Cosentino’s and Findlay’s job-or-severance oral promises

to ADSI employees pre-transitioning to AHI constituted a contract—and not just a

contract, but one separate and apart from their status as at-will employees. This

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simply misconstrues the basic formation of a contract. At most, the oral

representations by Cosentino and Findlay would have constituted offers to form a

contract, which Plaintiffs could have either accepted or rejected. However, we find

there was neither an offer nor an acceptance in this case. And, because there was no

offer or acceptance, as well as the alleged contracts having lacked the necessary

essential terms, there was never a valid, enforceable contract. While the district

court did not address this, we find it both necessary and relevant to do so.

Offers and acceptance are assessed by looking at “the reasonable meaning of

the parties’ external and objective manifestations of mutual assent, rather than by

their uncommunicated beliefs.” See Mayo v. Andress, 373 So. 2d 620, 623–24 (Ala.

1979). The oral representations made by Cosentino and Findlay initially may have

appeared to constitute an offer. However, the record evidence shows that, after these

oral representations by Cosentino and Findlay, Plaintiffs were presented with an

offer letter. That letter unambiguously stated: “The company is not offering you

employment for any definite period of time.” (emphasis added). This language tends

to defeat any objective belief that the letters actually constituted an offer, at least as

a matter of law. Even assuming, for summary-judgment purposes, this was an

offer—the language simply limiting the terms of employment—ADSI proved there

was no genuine dispute that Plaintiffs expressly rejected this offer. The undisputed

evidence showed Johnson and Stoddard each declined the AHI positions under the

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belief they ultimately would be required to relocate from Huntsville. Ranes, on the

other hand, rescinded her acceptance after being told she would be required to

relocate from Huntsville after her twelve months with AHI. It is elementary that

there is no valid contract when the party to whom the offer is made does not accept

the offer. See Mantiply, 951 So. 2d at 656. Without “a valid contract binding the

parties,” it is axiomatic that a plaintiff cannot succeed on a breach-of-contract claim.

See Avis Rent a Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1118 (Ala. 2003).

The alleged contract also lacked the necessary essential terms with the

requisite definiteness to be considered a valid, enforceable contract. See Mantiply,

951 So. 2d at 656; Drummond Co. v. Walter Indus., Inc., 962 So. 2d 753, 774 (Ala.

2006) (“[I]f a court cannot discern the intentions of the parties to a contract because

the contract is so vague and indefinite, the contract is void on the ground of

uncertainty.”). The offer letters never discussed or contained the terms of

employment, much less the terms for entitlement to severance payments. Indeed,

the offer letter stated: “The company is not offering you employment for any definite

period of time. All terms and conditions are subject to change without notice at the

Company’s discretion.” (emphasis added). This language renders the alleged

contract nothing more than illusory in nature, lacking any definiteness necessary to

bind the parties to such a legal agreement. See Childersburg Bancorporation, Inc.

v. People State Bank of Com., 962 So. 2d 248, 260 (Ala. Ct. Civ. App. 2006)

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(reasoning that a party to an alleged contract cannot “unilaterally control the

conditions” of the contract). Simply, the language is too vague and leaves too much

open-ended for the formation of a contract.

Plaintiffs continuously reference back to Cosentino’s and Findlay’s oral

representations. They cite to Evans v. National Microsystems, Inc., 576 So. 2d 207,

208 (Ala. 1991), which they contend has “remarkably similar” facts. We find Evans

distinguishable for several reasons. In Evans, the company circulated a written

memorandum to its employees, informing them of their right to a severance payment

if they resigned before a date certain. Id. at 208. In response, the plaintiff resigned.

Id. at 209. The Alabama Supreme Court found that the act of resigning constituted

the plaintiff’s acceptance of the company’s offer, thereby forming a valid contract.

Id. at 209–10 (“Under the fact situation presented in this case, the employee showed

his acceptance of the offer made to him by tendering his letter of resignation. His

performance—the tendering of his resignation—eliminated his right to any

unemployment benefits he might collect and was sufficient consideration for

Microsystems' promise of severance pay.”).

Without phrasing it as such, Evans is a classic case of the formation of a

unilateral contract. In these situations, the offeree manifests her acceptance of the

offer simply by rendering performance on the contract. See also SouthTrust Bank v.

Williams, 775 So. 2d 184, 188 (Ala. 2000) (“[A] unilateral contract results from an

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exchange of a promise for an act . . . .” (alteration in original) (quoting Mark Pettit,

Jr., Modern Unilateral Contracts, 63 B.U.L. Rev. 551, 553 (1983))); Miller v.

Thompson, 156 So. 773 (Ala. 1934) (“[P]erformance supplies the element of

mutuality necessary as a consideration to support the obligation.”). Thus, again, in

Evans, the plaintiff accepted the company’s offer, thereby forming a contract, upon

resigning from his position. No return promise, or other representation, was

necessary.

Conversely, “a bilateral contract results from an exchange of promises.”

SouthTrust Bank, 775 So. 2d at 188 (quoting Pettit, supra, at 553). Here, the nature

of the alleged offer from Cosentino and Findlay did not lend itself to Plaintiffs’

ability simply to perform as a manner in accepting. Rather, they were required to

return a promise to accept the alleged offer. They did not do so; to the contrary,

they expressly rejected the offer. No bilateral contract was formed. While the

content of the offer in Evans may be comparable, the nature of the offer is

distinguishable.

Plaintiffs also point to Reynolds Metal Co. v. Hill, 825 So. 2d 100 (Ala. 2002),

in which a supervisor allegedly represented to a group of employees that, if their

plant were sold or closed, they would be entitled to certain benefits. Id. at 102–03.

The plaintiffs filed a class action after they and the company could not come to an

agreement on the implications of the supervisor’s representations. Id. While the

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facts of Reynolds, like those of Evans, are somewhat similar to this case, the

procedural posture is not—and that is of great legal significance. On reviewing the

trial court’s class certification, the Alabama Supreme Court was not determining

whether a valid, enforceable contract existed. See id. at 108. Nevertheless, Reynolds

is entirely irrelevant because the facts of this case leave no dispute that the Plaintiffs

never entered into a contract with AHI for employment.

Plaintiffs never entered into a valid, enforceable bilateral contact with ADSI

that was separate and apart from their at-will employment. There is no dispute from

the record evidence that there was no offer, no acceptance, and no essential terms

with definiteness to form a contract. The district court properly entered summary

judgment in favor of ADSI on Plaintiffs’ breach-of-contract claim.

III. CONCLUSION

For the reasons stated above, we affirm the district court’s order granting

summary judgment in favor of ADSI and granting ADSI’s motion to strike.

AFFIRMED.

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