UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM B. JENKINS, 

Plaintiff-Appellant,

v.  No. 01-2200

AKZO NOBLE COATINGS,

INCORPORATED,

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(CA-97-124-V)

Argued: April 4, 2002

Decided: May 21, 2002

Before WILKINSON, Chief Judge, and WILLIAMS and

TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Jim D. Cooley, WOMBLE, CARLYLE, SANDRIDGE &

RICE, P.L.L.C., Charlotte, North Carolina, for Appellant. Charles

Matthew Keen, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Raleigh, North Carolina, for Appellee. ON BRIEF: Amy

L. Cox Gruendel, WOMBLE, CARLYLE, SANDRIDGE & RICE,

P.L.L.C., Charlotte, North Carolina, for Appellant. Robert A. Sar,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

William Jenkins appeals from the district court’s dismissal at the

summary judgment stage of his suit alleging breach of contract and

fraudulent misrepresentation in connection with his departure from

employment with Akzo Nobel Coatings, Inc. Because North Carolina’s employment at will doctrine bars Jenkins’s breach of contract

claim, and because Jenkins failed to make the requisite evidentiary

showing to survive summary judgment as to his fraudulent misrepresentation claim, we affirm. 

I.

Akzo and its affiliates manufacture coatings for use on furniture

and other wood products. With the exception of a three-year period

during which he worked for a family business, Jenkins was employed

by Akzo continuously from 1969 until his departure in 1997. In 1990,

Jenkins was asked to accept a position as Director of Sales and Marketing for Akzo’s start-up operation in the Far East, which was to be

headquartered in Singapore. Jenkins accepted the assignment, on the

condition that he would have a job when he returned to the United

States. Akzo promised Jenkins that he would be returned to a position

in the company’s United States operations upon the conclusion of his

foreign assignment. This commitment was memorialized in a document entitled "Southeast Asia Expatriate Contract" (the contract), executed by both parties in August of 1991 and subsequently modified

in June and October of 1992. (J.A. at 72, 89, 90.) The relevant provisions of the contract provided that Jenkins’s "assignment [would]

2 JENKINS v. AKZO NOBLE COATINGS
extend for approximately two (2) years [until] June 1993," and "any

extension or change in status [would] be at terms and conditions

mutually agreed upon" by Jenkins and Akzo. (J.A. at 72.) Further, the

agreement included a "position guarantee at repatriation," the text of

which was revised twice. The August 1991 contract stated that "assuming satisfactory job performance, the position to which [Jenkins]

[would] return upon repatriation to the United States [would] be at a

base compensation package equivalent with the expatriate assignment

. . . [and] such position could be at any USA location where [Akzo]

maintains a manufacturing facility." (J.A. at 73.) By an "addendum"

dated June 16, 1992, which addressed Jenkins’s promotion to Southeast Asia Regional Manager, the parties agreed that "upon completion

of this assignment, Mr. Jenkins [would] be assigned in an available

position within the organization commensurate with his abilities and

training. The salary for this repatriation assignment [would] be in line

with the salary range for the job to which he is assigned." (J.A. at 89.)

By an "addendum" dated October 14, 1992, the language was modified to state that:

Upon completion of this agreement, Mr. Jenkins [would] be

assigned in an available position within the organization

commensurate with his abilities and training. The salary for

the repatriation assignment [would] be a minimum of

$75,000 base per year plus the normal annual increases for

each year served in the Far East if he is performing his general manager function satisfactorily. 

(J.A. at 90.) Finally, the original contract stated, in a provision entitled "Termination/Early Discontinuance of Agreement," unmodified

by either the June or October 1992 addenda, that "in the event of [Jenkins’s] separation from Akzo . . . the company [would] reimburse all

expenses" related to Jenkins’s return to the United States. (J.A. at 72.)

When the last addendum was executed in October 1992, Jenkins’s

supervisor told him that rather than re-executing the contract when its

term expired, "we’ll just continue under those terms." (J.A. at 285.)

At various times during 1994, 1995, and 1996, Jenkins expressed

to his superiors his desire to leave Singapore. Jenkins was told in

April 1996, by his supervisor, Rad Darby, that he would be repatriJENKINS v. AKZO NOBLE COATINGS 3
ated when there was a job available in the United States and a

replacement could be found for him in Singapore. 

Citing performance issues,1 however, on January 6, 1997, Akzo terminated Jenkins as director of sales and marketing and regional manager for Southeast Asia and offered him another position — Country

Manager for Indonesia — that both parties considered a demotion. In

the event that Jenkins declined the Indonesia Country Manager position, Akzo offered him a severance package. Jenkins decided to leave

Akzo and took a reduced severance package because he did not wish

to release his legal claims against Akzo. 

On June 27, 1997, Jenkins filed a complaint in the Superior Court

of Caldwell County, North Carolina against Akzo, seeking relief for

breach of contract and fraudulent misrepresentation. Akzo removed

the action to the district court based on diversity jurisdiction and filed

a Motion to Dismiss as to all claims on August 4, 1997. The case was

assigned to a magistrate judge for a report and recommendation. See

28 U.S.C.A. § 636 (West 1999). On December 8, 1997, the magistrate

judge issued a "memorandum and recommendation" that Akzo’s

motion be denied in its entirety. (J.A. at 197-199.) Jenkins then filed

an amended complaint adding a claim for violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621 et seq.

(West 1999). Akzo filed objections to the recommendation, and after

conducting a de novo review pursuant to 28 U.S.C.A. § 636, the district court adopted the magistrate judge’s recommendation and denied

Akzo’s motion to dismiss on September 16, 1998. After completion

1Akzo contends that Jenkins’s performance was unacceptable because

he helped to develop a product that alienated a major customer when it

did not perform correctly; because he entered into property leases in

China without the proper approvals; because financial goals for the Far

East operation were not met; because embezzlement and arson allegedly

occurred at a Malaysian plant that was ultimately under Jenkins’s management; because Jenkins allegedly discharged an employee without

documentation, leading to litigation; and because Jenkins allegedly did

not do enough to retain a key saleswoman, Laura Boon. Jenkins contests

these allegations and notes that he received substantial performancebased bonuses during each year of his employment in Singapore, as well

as increases in base pay of approximately 30%. 

4 JENKINS v. AKZO NOBLE COATINGS
of discovery, Akzo moved for summary judgment as to all of Jenkins’s claims. The district court referred Akzo’s motion to the magistrate judge for discovery and a recommendation. 

On March 1, 2000, the magistrate judge issued a "memorandum

and recommendation" that summary judgment be granted in favor of

Akzo as to Jenkins’s ADEA claim but denied as to Jenkins’s claims

for breach of contract and fraudulent misrepresentation. Akzo

objected to the magistrate judge’s recommendation insofar as it

involved denial of summary judgment for Akzo on the contract and

fraud claims. Jenkins did not object to the magistrate judge’s recommendation to grant summary judgment to Akzo on his ADEA claim.2

On September 5, 2001, after conducting a de novo review as required

by 28 U.S.C.A. § 626(b)(1) (West 1999), the district court issued a

"memorandum and order" granting summary judgment in Akzo’s

favor as to the contract and fraud claims. Jenkins timely appealed

from this order. 

II.

The district court granted summary judgment to Akzo on Jenkins’s

breach of contract claim, finding that any contract between Jenkins

and Akzo lacked a definite term and thus could not rebut the strong

presumption in favor of at will employment mandated by North Carolina law. This court reviews the district court’s entry of summary

judgment in Akzo’s favor de novo. American Legion Post 7 v. City

of Durham, 239 F.3d 601, 605 (4th Cir. 2001). Summary judgment

is appropriate only "if the pleadings, 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." Fed. R.

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In

deciding whether there is a genuine issue of material fact, "the evidence of the nonmoving party is to be believed and all justifiable

2

Jenkins thus effectively abandoned his ADEA claim, and he does not

challenge the dismissal of that claim in this proceeding. See Thomas v.

Arn, 474 U.S. 140, 145-46 (1985); United States v. Schronce, 727 F.2d

91, 93-94 (4th Cir. 1984) (holding that a failure to timely object to magistrate judge’s recommendations waives any challenge to those recommendations). 

JENKINS v. AKZO NOBLE COATINGS 5
inferences must be drawn in its favor." Durham, 239 F.3d at 605. A

mere scintilla of proof will not suffice to prevent summary judgment,

however; the question is "not whether there is literally no evidence,

but whether there is any upon which a jury could properly proceed to

find a verdict for the party" resisting summary judgment. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986) (internal quotation

marks omitted). A failure to produce evidence sufficient to permit a

jury to find for the nonmovant plaintiff as to one of the elements of

his cause of action renders all other issues of fact immaterial. Celotex,

477 U.S. at 323. "As a court sitting in diversity, we have an obligation

to interpret the law in accordance with the [jurisprudence of the North

Carolina Supreme Court], or where the law is unclear, as it appears

that the [North Carolina Supreme Court] would rule." Wells v. Liddy,

186 F.3d 505, 527-28 (4th Cir. 1999). "To forecast a decision of the

state’s highest court we can consider, inter alia: canons of construction, restatements of the law, treatises, recent pronouncements of general rules or policies by the state’s highest court, well considered

dicta, and the state’s trial court decisions." Id.

North Carolina is an employment at will state, such that in general,

an employee without a definite term of employment may be discharged for any reason or for no reason. Coman v. Thomas Mfg. Co.,

381 S.E.2d 445, 446 (N.C. 1989). Under the employment at will doctrine, the burden of showing that a contract of employment exists and

is sufficiently specific in its terms to rebut the presumption of

employment at will rests with the employee. Rosby v. Gen. Baptist

State Convention, 370 S.E.2d 605 (N.C. Ct. App. 1988). "[I]n the

absence of a contractual agreement between an employer and an

employee establishing a definite term of employment, the relationship

is presumed to be terminable at the will of either party without regard

to the quality of performance of either party." Kurtzman v. Applied

Analytical Indus., Inc., 493 S.E.2d 420, 422 (N.C. 1997). The "limited" exceptions to the at will rule recognized by the North Carolina

Supreme Court include a contract for a "definite period of employment," federal and state anti-discrimination statutes, and situations

wherein public policy bars discharge, as when an employee is discharged for refusing to break the law. Id.; Amos v. Oakdale Knitting

Co., 416 S.E.2d 166, 168 (N.C. 1992). Terms such as "a regular permanent job" or "if you do your job, you’ll have a job," are "not sufficiently definite to remove the employment relationship from the at6 JENKINS v. AKZO NOBLE COATINGS
will presumption." Id. at 422-23; see also Malever v. Kay Jewelry

Co., 25 S.E.2d 436, 437 (N.C. 1943) (holding that a "promise of permanent employment simpliciter" implies "an indefinite general hiring,

terminable at will."). Because the employment at will rule serves as

"an incentive to economic development, and any significant erosion

of it could serve as a disincentive," North Carolina courts have been

reluctant to permit the rebuttal of the policy-based at will presumption. Kurtzman, 493 S.E.2d at 423. 

It is clear that Jenkins’s employment agreement in this case was

not one for a definite term. While the original agreement was one for

a definite term, the original agreement expired in 1993; the contract

itself provided that "any extension . . . will be at terms and conditions

mutually agreed upon," and the parties agreed to continue under the

terms of the agreement for an indefinite period. (J.A. at 72, 285). Further, the contract expressly provided a means for its termination; in

a provision entitled "Termination/Early Discontinuance of Agreement," the contract simply stated that if Jenkins separated from

Akzo’s employ, Akzo would be obligated to pay expenses associated

with Jenkins’s move back to the U.S. (J.A. at 78.) It is undisputed that

Akzo reimbursed Jenkins for those expenses. 

There is no contention on appeal that Jenkins was terminated in

violation of any antidiscrimination law or that he was terminated for

reasons of the sort deemed by North Carolina courts to trigger the

public-policy exception to employment at will — e.g., because he

refused to violate the law or to facilitate a violation of the law. Consequently, Jenkins has failed, under the employment at will jurisprudence recently reaffirmed in Kurtzman, to rebut the at will

presumption. 

Seeking to avoid this result, Jenkins argues that this suit is not one

for wrongful termination, and thus, it is not controlled by Kurtzman

and other North Carolina cases reaffirming the vitality of the employment at will doctrine. Jenkins argues that this action is unaffected by

North Carolina’s employment at will jurisprudence because Jenkins

seeks recovery for an employer’s failure to provide a benefit — repatriation to a comparable job with Akzo — to which he is contractually

entitled. Thus, Jenkins maintains that his action is analogous to a right

of return to a union position in the event that a management promoJENKINS v. AKZO NOBLE COATINGS 7
tion did not "work out," which the North Carolina Court of Appeals

has held to be unaffected by employment at will. Bennett v. Eastern

Rebuilders, Inc., 279 S.E.2d 46, 48-50 (N.C. Ct. App. 1981). Similarly, Jenkins contends that his repatriation guarantee is analogous to

an agreement to "bridge" seniority from a previous job in order to

allow for an enhancement of retirement benefits, which is not rendered unenforceable by employment at will. Welsh v. Northern Telecom, Inc., 354 S.E.2d 746, 751 (N.C. Ct. App. 1987). 

Bennett and Welsh are, however, inapposite. Bennett involved a

promise to terminate the employment agreement only by first returning the employee to a union position. Bennett, 279 S.E.2d at 49. An

employee "is not entitled to recover damages [under the Bennett

approach] beyond the lawful termination" of an employment agreement. Bloch v. Paul Revere Life Ins. Co., 547 S.E.2d 51, 59 (N.C. Ct.

App. 2001). Here, Jenkins’s contract facially provides that termination is permissible and simply gives Jenkins a right to payment of his

moving expenses in the event of termination of the agreement. Welsh

involved a right to promised pension benefits; North Carolina courts

have "distinguished between issues of benefits or compensation

earned during employment and the issue of an employee[‘s] entitlement to continued employment." Rucker v. First Union Nat’l Bank,

389 S.E.2d 622, 625 (N.C. Ct. App. 1990). Claims for accrued benefits, as distinct from claims for prospective continued employment or

working conditions, are not affected by the employment at will doctrine. Jenkins, however, seeks a remedy for Akzo’s failure to continue

to employ him in a certain capacity, not a remedy for any failure to

provide him with accrued benefits for past service. 

Assuming that Jenkins’s demotion amounted to a constructive discharge,3

 it is clear that North Carolina law permits discharge or demo3

Jenkins was not formally terminated by Akzo; instead, he was

demoted and chose to leave the company rather than accept an assignment as Indonesia Country Manager. The parties implicitly treat his

demotion as a constructive discharge under North Carolina law. The

North Carolina Court of Appeals has questioned the existence of the constructive discharge doctrine. See Graham v. Hardee’s Food Sys., Inc.,

465 S.E.2d 558, 560 (N.C. Ct. App. 1996) (noting that North Carolina

courts "have yet to adopt the employment tort of constructive discharge,"

8 JENKINS v. AKZO NOBLE COATINGS
tion in cases such as this one, with or without cause. The district

court’s analysis of the North Carolina Supreme Court’s decision in

Kurtzman is cogent and accurate. While in Kurtzman the court did

deny that "a definite term of service is the sole means of contractually

removing the at-will presumption," it gave no hints as to what elements other than a definite term of service could suffice to rebut the

presumption. Kurtzman, 493 S.E.2d at 421. No cases from the North

Carolina Supreme Court suggest any other means, and this court, sitting in diversity, should not "surmise or suggest . . . expansion" of

state law. Tritle v. Crown Airways, Inc., 928 F.2d 81, 84 (4th Cir.

1990) (internal quotation marks omitted). The district court properly

declined to read into Kurtzman’s vague disclaimer the authority to

craft a wholly novel exception to the employment at will doctrine.

Consequently, the district court correctly found that Jenkins was an

employee at will; it follows that whether he was constructively discharged or demoted, he cannot maintain a claim either for wrongful

discharge or for breach of contract based on Akzo’s failure to provide

him with continued employment in the United States or anywhere else.4

Fidelity to North Carolina’s employment at will doctrine requires that

we affirm the district court’s grant of summary judgment to Akzo on

Jenkins’s breach of contract claim. 

and resolving a wrongful discharge claim wherein an employee quit after

a change in working conditions on the assumption that constructive discharge is a viable theory). But see Coman v. Thomas Mfg. Co., Inc., 381

S.E.2d 445, 446 (N.C. 1989) (noting without analysis that a reduction in

pay of "at least fifty percent" is "tantamount to a discharge," and proceeding to analyze the case before it under a wrongful discharge framework); Doyle v. Asheville Orthopaedic Assoc., P.A., 557 S.E.2d 577, 579

(N.C. Ct. App. 2001) ("evidence establishing constructive discharge

must demonstrate that the employer deliberately made working conditions intolerable and thereby force[d] [the employee] to quit"). 

4Accordingly, we do not address Akzo’s argument that under ordinary

contract principles, without regard to the employment at will doctrine, it

is entitled to summary judgment based on a lack of definiteness and consideration. 

JENKINS v. AKZO NOBLE COATINGS 9
III.

Jenkins next contends that the district court erred in granting summary judgment to Akzo on his claim for fraudulent misrepresentation.

The elements of an action for fraudulent misrepresentation in North

Carolina are (1) a false representation or concealment of a material

fact; (2) reasonably calculated to deceive; (3) made with the intent to

deceive (scienter); (4) upon which the injured person reasonably

relied to his detriment. Pearce v. American Defender Life Ins. Co.,

343 S.E.2d 174, 178 (N.C. 1986). 

Jenkins failed to create a disputed factual issue as to two of the elements of a claim for fraudulent misrepresentation: reasonable reliance

and scienter. A fraud claim based on a promise of a future act may

succeed only where there is evidence of scienter tending to show that

the promisor intended to deceive and had no intention of performing

the promise at the time he made it. Johnson v. Phoenix Mut. Life Ins.

Co., 266 S.E.2d 610, 616 (N.C. 1980), overruled on other grounds by

Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 374 S.E.2d 385

(N.C. 1988). If Jenkins can show an otherwise actionable misrepresentation, he must show that he relied on this misrepresentation to his

detriment. Id. at 615. In this case, the scienter and reliance elements

are closely related. Jenkins clearly relied on representations that he

would be repatriated that were made in 1991 when he moved to

Singapore and accepted an Akzo position there. No evidence indicates, however, that Akzo knew when it sent Jenkins to Singapore

that it would not repatriate him; Jenkins’s evidence that Akzo failed

to repatriate other Asia employees in the mid-1990s, after the Asian

operation had been up and running for several years, says nothing

about the state of mind of any relevant decisionmaker in 1991, when

the first representations were made to Jenkins regarding repatriation.

In turn, the later statements made by Jenkins’s supervisors in 1995

and 1996, to the effect that he would be repatriated as soon as a position was available in the United States, were made when Jenkins was

already living in Singapore. Even if we assume that a reasonable

finder of fact could infer scienter from Jenkins’s allegedly

performance-based demotion shortly after these later statements were

made, Jenkins must nonetheless show that he relied on these statements to his detriment. Johnson, 266 S.E.2d at 616. This he cannot

do on the summary judgment record before us. 

10 JENKINS v. AKZO NOBLE COATINGS
At most, Jenkins could claim that he remained in Singapore in reliance on a promise that he would be repatriated to a comparable job.

But the only evidence cited by Jenkins in support of this assertion is

two pages of testimony indicating that Jenkins wanted to come back

to the United States and asked to be repatriated several times. (J.A.

at 261-63.) What is missing is any evidence that, but for the allegedly

fraudulent statements, he would have quit and returned to the United

States or taken any other action. Thus, there is no evidence in the

record that would allow a reasonable finder of fact to determine that

Jenkins detrimentally relied on any statement for which there is any

evidence, even indirect, of scienter. In short, there are statements,

made in 1991, that may have induced reliance but were not made with

scienter; and there are statements made in 1996 that, even assuming

scienter could be inferred, lack evidence of detrimental reliance. What

is missing is a specific representation that a jury could conclude was

made with knowledge that it was false and on which Jenkins relied

to his detriment. Consequently, the district court properly granted

summary judgment in Akzo’s favor as to the fraudulent misrepresentation claim. 

Given Jenkins’s failure of proof, we need not decide whether

fraudulent misrepresentations that induce an employee to accept or

continue to hold a position must include a promise of employment for

a definite term in order to be actionable.5

5The North Carolina Court of Appeals has held that no definite term

is needed in the fraudulent misrepresentation context. Liggett Group, Inc.

v. Sunas, 437 S.E.2d 674, 681 (N.C. Ct. App. 1993). In the absence of

a controlling decision of the North Carolina Supreme Court, the Sunas

decision is entitled to persuasive weight. Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 512 (4th Cir. 1999). North Carolina law is

not without tension on this point, however: the Sunas court found itself

to be constrained by an earlier decision, Walton v. Carolina Tel. & Tel.

Co., 378 S.E.2d 427, 434 (N.C. Ct. App. 1989), which held that fraudulent inducement claims do not allege wrongful termination and are therefore not barred by employment at will, and stated that "at first blush, we

are inclined to agree" with a rule contrary to Walton. Sunas, 437 S.E.2d

at 681. 

JENKINS v. AKZO NOBLE COATINGS 11
IV.

This case brings into focus difficult policy questions regarding the

strength of the North Carolina employment at will presumption, the

need to protect the bargained-for expectations of employees and

employers, and the importance of bright-line rules governing the

employment relationship. The task of developing rules that strike the

appropriate balance between these sometimes competing objectives

is, however, assigned to the courts of North Carolina; in diversity

cases such as this one, we must apply the rules and principles developed by the relevant state’s courts. The North Carolina Supreme

Court has made it clear that an agreement for an indefinite term such

as the one in this case does not succeed in removing the presumption

of at will employment, and we are duty-bound to apply that policybased rule. Because the employment at will doctrine bars Jenkins’s

breach of contract claims and because Jenkins failed to create a genuine issue of material fact as to the reliance and scienter elements of

his fraudulent misrepresentation claim, the district court’s grant of

summary judgment to Akzo must be affirmed. 

AFFIRMED

12 JENKINS v. AKZO NOBLE COATINGS