UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1212

FRED SCHLEICHER, JR., 

 Plaintiff - Appellant, 

 v. 

TA OPERATING CORPORATION; BRAD ERKSON, 

 Defendants - Appellees. 

Appeal from the United States District Court for the Northern 

District of West Virginia, at Wheeling. Frederick P. Stamp, 

Jr., Senior District Judge. (5:06-cv-00133-FPS) 

Submitted: February 20, 2009 Decided: March 23, 2009 

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Ronald William Kasserman, KASSERMAN LAW OFFICES, PLLC, Wheeling, 

West Virginia, for Appellant. C. David Morrison, Jill O. 

Florio, STEPTOE & JOHNSON PLLC, Clarksburg, West Virginia, for 

Appellees.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Fred Schleicher, Jr. (“Schleicher”), appeals the 

district court’s adverse grant of summary judgment, following 

discovery, and dismissal of his civil action against his former 

employer, TA Operating Corporation (“TA”) and Brad Erkson 

(“Erkson”), in which he alleged fraudulent inducement relative 

to a job at which Schleicher worked for one day before quitting. 

The facts surrounding the interview process and events leading 

up to Schleicher’s leaving the job are well known to the 

parties, were set forth in detail by the district court in its 

memorandum opinion and order, and thus will not be recounted 

here. On appeal, Schleicher claims the district court erred in 

its dismissal of his complaint on summary judgment, asserting 

that there existed genuine issues of material fact concerning 

the nature of his job title and/or duties and whether he would 

have any weekends free to exercise visitation with his son. 

 We review a district court’s grant of summary judgment 

de novo, construing the facts in the light most favorable to the 

nonmoving party. Holland v. Washington Homes, Inc., 487 F.3d 

208, 213 (4th Cir. 2007), cert. denied, 128 S. Ct. 955 (2008). 

Summary judgment “should be rendered if the pleadings, the 

discovery and disclosure materials on file, and any affidavits 

show that there is no genuine issue as to any material fact and 

that the movant is entitled to judgment as a matter of law.” 

2 
Fed. R. Civ. P. 56(c). “[T]here is no issue for trial unless 

there is sufficient evidence favoring the nonmoving party for a 

jury to return a verdict for that party. If the evidence is 

merely colorable, or is not significantly probative, summary 

judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 249-50 (1986). With these standards in mind, we have 

reviewed the parties’ briefs and the record, and find no 

reversible error. 

 As a preliminary matter, the district court properly 

held that, under West Virginia law, Schleicher was required to 

prove his fraudulent inducement claim by clear and convincing 

evidence. See Tri-State Asphalt v. McDonough Co., 182 W. Va. 

757, 762, 391 S.E.2d 907, 912 (1990) (quoting Calhoun County 

Bank v. Ellison, 133 W. Va. 9, 54 S.E.2d 182 (1949)).1 It is 

insufficient to establish fraud based on promissory statements 

or statements of intention, and actionable representation must 

constitute more than “mere broken promises, unfulfilled 

predictions or expectations, or erroneous conjectures as to 

 1

 To prevail on a claim for fraudulent inducement under West 

Virginia law, a plaintiff must show: “(1) that the act claimed 

to be fraudulent was the act of the defendant or induced by him; 

(2) that it was material and false; (3) that [the] plaintiff 

relied upon it and was justified under the circumstances in 

relying upon it; and (4) that [the plaintiff] was damaged 

because he relied upon it.” Lengyel v. Lint, 167 W. Va. 272, 

276-77, 280 S.E.2d 66, 69 (1981). See also Kidd v. Mull, 215 W. 

Va. 151, 156, 595 S.E.2d 308, 313 (2004). 

3 
future events . . . even though a party acted in reliance on 

such promise.” Janssen v. Carolina Lumber Co., 137 W. Va. 561, 

570, 73 S.E.2d 12, 17 (1953). A presumption always exists in 

favor of honesty and innocence in any given instance, and the 

burden is on the individual alleging fraud to prove it by “clear 

and distinct evidence.” White v. National Steel Corp., 938 F.2d 

474, 490 (4th Cir. 1991). 

 While Schleicher takes issue with the title, duties, 

and conditions of the position to which he was hired, none of 

the acts of which he complains meet the essential elements for 

fraudulent inducement under West Virginia law. Specifically, 

Schleicher admits that he was to report to the Jessup, Maryland 

location until his training in Virginia began. While he 

complains of the tasks he was given, the schedule he was to 

work, and the lack of training he received on his first day of 

work, he terminated his employment prior to anyone having the 

opportunity to discuss his concerns with him, or to rectify any 

misunderstandings or miscommunications that may have occurred. 

The evidence reveals that a multi-stage, detailed and 

comprehensive General Manager training program lasting at least 

two months was planned for Schleicher, which program had not yet 

been communicated to Schleicher prior to his quitting his job. 

 Schleicher also claims he was fraudulently induced to 

accept a job other than the General Manager in training job he 

4 
was promised. However, the evidence demonstrates that 

Schleicher had, in fact, been hired as a General Manager in 

training, as expressed in the employment offer letter he was 

given by TA, that he was being compensated as such, and that the 

training program for which he was scheduled was set up to train 

him as a General Manager. To support his claim of fraudulent 

inducement, Schleicher points to the facts that Spencer, the 

existing General Manager of the Jessup location, gave him menial 

duties his first day and believed that he had been hired as her 

assistant.2 However, the evidence demonstrates that these 

actions were not directed by TA or Erkson, and Schleicher did 

not discuss these concerns with Spencer or give Erkson or TA the 

opportunity to rectify Spencer’s misunderstandings.3 Such 

 2

 As Schleicher was under the impression that he eventually 

was going to be replacing Spencer as the General Manager of the 

Jessup location, he could not have relied upon her 

characterization of his job, his title, or the duties of his 

employment to support any claim that he relied upon a material 

and false act. 

3

 Schleicher admits he received and failed to return 

Erkson’s return telephone call on what would have been 

Schleicher’s second day of work, in which Erkson intended to 

discuss with Schleicher the concerns he raised in his call to 

Erkson the evening before. 

Moreover, while Schleicher contends that a legitimate 

mistake does not negate a cause of action for fraud, citing Kidd 

v. Mull, 215 W. Va. 151, 157, 595 S.E.2d 308, 314 (2004), a case 

involving commercial real estate, Kidd, as well as the other 

cases relied upon by Schleicher in his Appellate Brief, are 

distinguishable because they involve commercial sales. As this 

(Continued) 

5 
misunderstandings by Spencer do not establish fraud by TA or 

Erkson.4 See Janssen, 137 W. Va. at 570, 73 S.E.2d at 17. 

 Further, with regard to the fact that Spencer had 

prepared a schedule for Schleicher that had him working on 

Saturdays, that schedule was inconsistent with the schedule 

prepared by the training manager, and more importantly, was not 

inconsistent with Erkson’s promise to Schleicher that TA would 

 

court noted in White, where plaintiffs allege fraud by their 

employers by failing to inform them of various material facts 

affecting their employment, there is “no indication that West 

Virginia would have [the Court] adopt a legal doctrine developed 

in the context of commercial sales and apply it within 

employment relationships in such a way that non-disclosure on 

the part of an employer operates as constructive fraud and 

disclosure operates as a binding unilateral contract.” White, 

938 F.2d at 490. 

4

 Nor can Erkson’s hope to make Schleicher a “Co-General 

Manager” at some indeterminable point in the future be said to 

constitute fraud, as the district court correctly found. The 

record evidence established, though Schleicher’s own admissions, 

that the subject of Schleicher being made a Co-General Manager 

never came up in any of his discussions with Erkson prior to 

September 19, 2005. Moreover, there is no dispute that, at the 

time Erkson hired Schleicher, there was no such position as a 

“Co-General Manager,” nor was there any program approved by TA 

for placing two general managers in one location. Hence, 

Schleicher cannot establish that a material and false 

representation was made by Erkson relative to the Co-General 

Manager title, especially given the fact that Schleicher 

concedes that the first time he heard anything about the 

possibility that there might be two General Managers at the 

Jessup site was during his unemployment compensation hearing on 

December 15, 2005, nearly three months after he left his job 

with TA. 

6 
“work with” Schleicher to allow him to have some free weekends.5 

Schleicher provided no evidence whatsoever that TA or Erkson 

ever promised that he would have every weekend, any specific 

weekend, or even the first weekend off from work so he could 

visit his son. Nor did the one day Schleicher worked provide 

TA, Erkson, or even Spencer with the opportunity to “work with” 

Schleicher on his schedule. 

 Hence, we find no error by the district court in its 

determination that Schleicher failed to establish, by clear and 

convincing evidence, that any of TA or Erkson’s actions were 

intended to fraudulently induce Schleicher to accept the job 

with the company. As the district court held, what is clear is 

that the parties may have experienced a number of 

misunderstandings, miscommunications, and confusion regarding 

Schleicher’s training and employment conditions, but these do 

not constitute fraudulent inducement under the applicable law. 

 Accordingly, we affirm the district court’s grant of 

summary judgment and the dismissal of Schleicher’s complaint. 

We dispense with oral argument because the facts and legal 

 

 5

 This promise was included in the stipulation of facts 

submitted to the district court prior to its ruling on the 

summary judgment motion. 

7 
8 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process. 

AFFIRMED