* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that th i s

opinion s h ould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

NO. 04-20092

_______________________

RANDALL M. THOMPSON,

Plaintiff-Appellant,

versus

SYNTROLEUM CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

Civil Action No. H-02-4169

Before REAVLEY, JONES and DENNIS, Circuit Judges.

PER CURIAM: *

Plaintiff -Appellant Randall M. Thompson ("Thompson")

filed a bre ach of contract action against Defendant-Appellee

Syntroleum Corporation ("Syntroleum") for failure to pay severance

upo n termination of Thompson’s employment. On cross motions for

summary judgment, the district court granted Syntroleum’s motion,

and Thompson appealed. At bar is whether the district court erred

in finding that no genuine issue of material f act existed as to United States Court of Appeals

Fifth Circuit 

## F I L E D

September 3, 2004

Charles R. Fulbruge III

Clerk2

Thompson’s termination and that Syntroleum was entitled to judgment

as a matter of law.

For the reasons stated below, we find that the district

court erred in granting Syntroleum’s motion for summary judgment.

Accordingly, we vacate the district court’s grant of summary

judgment and remand for further proceedings.

I. Background

Syntroleum employed Thompson as its Chief Financial

Officer from late 1996 through September 30, 2002. The employment

contract at issue became effective on June 17, 1999. In relevant

part, the employment contract provides the following:

13. Term and Termination

(b) Employment or Employee under this Agreement may be terminated

. . . (iv) by mutual agreement of Employee and

the Company.

. . . (vi) by the Company for just cause at

any time upon written notice. . . .

(vii) by either the Company or Employee

upon 60 days written notice. . . .

(d) If Employee’s employment is terminated

pursuant to the terms of this agreement for

any reason, Employee shall be entitled to all

arrearage [] of salary and expenses up to and

including the date of termination but shall

not be entitled to further compensation.

Provided, that if at any time after the first

12 months from th e date of the Original

Employment Agreement, Employee’s employment is

terminated by the Company for any reason other

than Employee’s death, disability or retirement, the Company’s dissolution or just cause

as provided in Paragraphs 13 (b) (i), (ii),

(iii), (iv) or (v), respectively, Employee

shall be entitled to and the Company shall pay3 Employee all arrearage [] of salary and

expenses up to and inc luding the date of

termination and, in addition, Emplo yee’s

monthly base salary for an additional period

of 24 months.

In relevant s ummary, the contract provides that involuntary

termination of an employee without just cause entitles the employee

to severance, while voluntary resignation of an employee by mutual

agreement with the company divests an employee of the severance

entitlement.

During his tenure with Syntroleum, Thompson principally

attended to the Sweetwater Project ("Sweetwater"), an ini tiative

involving construction of a plant to convert natural gas to

liquids. He worked primarily from his Houston, Texas home, making

weekly visits to Syntroleum’s headquarters in Tulsa, Oklahoma.

In May 2002, Ken Agee ("Agee"), Chairman of Syntroleum’s

Board of Direct ors, asked Thompson to relocate to Syntroleum’s

headquarters. When Thompson declined, Agee told him that

Syntroleum would terminate his employment for failure to relocate

and directed him to prepare a severance proposal. Shortly thereafter, Agee changed his mind, told Thompson that Syntroleum would

continue his employment, and said, "Let’s see how it goes."

Thompson maintains that he construed the term "it" to refer to

Sweetwater and believed that his continued employment depended upon

the project’s success.

On or about July 17, 2002, Agee told Thompson that he

would recomm end that Syntroleum abandon Sweetwater. Thompson4

maintains that he told Agee that if Syntroleum abandoned

Sweetwater, he would contact human resources and prepare a

severance proposal, to which Agee said "OK." Thompson considered

Agee’s statement an affirmative acknowledgment that if Syntroleum

abandoned Sweetwater, it w o uld also terminate his employment,

entitling him to severance. Thompson submitted his own affidavit

recounting several interactions with Syntroleum’s human resources

director in furtherance of this understanding.

Recounting a significantly different response, Syntroleum

maintains that Thompson told Agee that if S yntroleum abandoned

Sweetwater, he would quit and prepare a severance proposal, to

which Agee sa id "OK." According to Syntroleum, Agee’s statement

was an acknowledgment not of termination by Syntroleum or

Thompson’s entitlement to severance, but only of Thompson’s

voluntary decis ion to quit if Syntroleum abandoned Sweetwater.

Syntroleum submitted deposition testimony of four persons to whom

Thompson purportedly made similar statements regarding his intent

to quit.

Syntroleum eventually abandoned Sweetwater, and on

September 9, 2002, Syntroleum informed Thompson in writing that his

July 17 resignation was effective September 9, that the Compensation Committee denied Thompson’s request for seve rance, and that

Syntroleum would pay Thompson’s regular salary through September 30, 2002.5 II. Discussion

Upon reviewing the district court’s summary judgment

decision de novo and applying the same standards as that court,

Sholdra v. Chilmark Fin. L.L.P. (In re Sholdra)

, 249 F.3d 380, 382

(5th Cir. 2001), we find that the district court erred in granting

Syntroleum’s motion for summary judgment because genuine issues of

material fact determi native of Syntroleum’s liability are in

dispute.

Pursuant to F E DERAL R ULE OF C IVIL P ROCEDURE 56, summary

judgment is only appropriate when the movant demonstrates that no

genuine issue of material fact is in dispute and that it is

entitled to judgmen t as a matter of law. H unt v. Cromartie

, 526

U.S. 541, 552, 119 S. Ct. 1545, 1551-52, 143 L. Ed. 2d 731 (1999);

F ED

. R. C IV

. P. 56(c). A fact is "material" if its resolution is

outcome determinative. Ginsberg 1985 Real Estate P’ship v. Cadle

Co.

, 39 F.3d 528, 531 (5th Cir. 1994). An issue is "genuine" if

the evidence is sufficient for a reasonable fact-finder to find in

favor of the non-movant. Id.

A c ourt must view the evidence and all justifiable

inferences in the light most favorable to the non-movant, and may

not sit as a factfinder, i.e. , weigh evidence or evaluate witness

credibility. M orris v. Covan Worldwide Moving, Inc.

, 144 F.3d 377,

380 (5th Cir. 1998) ( citing Anderson v. Liberty Lobby, Inc.

, 477

U.S. 242, 255, 106 S.Ct. 2505, 2513 91 L.Ed.2d 202 (1986)). While6

the issue of state of mind is not per s e preclusive, summary

judgment on this issue is discouraged because intent is a question

of fact quintessentially within the province of the factfinder.

Sanders v. English

, 950 F.2d 1152, 1164 (5th Cir. 1992); Int’l

Shortstop v. Rally’s , 939 F.2d 1257, 1263 (5th Cir. 1991) ; Hayden

v. First Nat’l Bank , 595 F.2d 994, 997 (5th Cir. 1979).

All elements precluding summary judgment are present in

the instant case. Thompson’s termination status - - - whether

Syntroleum involuntaril y terminated him without just cause or

whether he voluntarily resigned - - - is a contested fact because

the parties advance contradictory positions with supporting

documentation. The circumstance of Thompson’s termination is

material because it a ffects the applicability of the contract’s

severance provision: involuntary termination triggers the

entitlement, voluntary resignation does not. The issue is genuine

because the record eviden ce is sufficient for a reasonable

factfinder to reach the district court’s conclusion or to discredit

the evidence propounded by Syntroleum in favor of the evidence

presented by Thompson. Resolution either way will require a

factfinder to credit deposition testimony and accord weight to the

parti es’ competing versions of the facts. Under these

circumstances, the district court’s grant of summary judgment was

erroneous.

III. CONCLUSION7 For the reasons discussed above, the district court’s

grant of summary judgment is REVERSED, and the case is REMANDED for

further proceedings consistent with this opinion.

REVERSED and REMANDED

.