with whom they are to be filled, do not rise to the level of contractual undertakings." Id. at 504.
In the case at hand, the representations of defendants relied upon by plaintiffs are of the same kind as those of the employer in MacGill. In several instances, First Union identified the procedure by which displaced employees could apply for internal positions at First Union. In other instances, First Union stated its intent to give displaced First American employees priority consideration. However, at no point did First Union specify whom it would hire to fill vacant positions. For this reason, under Maryland law, plaintiffs must lose.
The same result is required by Virginia law. In Graham, the plaintiff had been fired after receiving two disciplinary memoranda which informed her that she had been placed on two 90-day probationary periods due to money that was missing from her bank teller's drawer. 428 S.E.2d at 917. However, plaintiff was fired before the end of the second probationary period. Id. Before the court, she argued that the disciplinary memoranda, together with her employee handbook which detailed her job responsibilities, impliedly converted her employment at-will to one for termination for cause by fixing time periods for the probation. 245 Va. at 400. The court rejected her argument, finding that the memoranda did not contain a clear intent on the part of the employer to change plaintiff's at-will status. Without a clearly expressed intent to do so, public policy required that the letters not be construed as contracts because otherwise, employers would be "loath to advise unsatisfactory employees of their deficiencies and thus give them an opportunity to improve." Id.
Applying this analysis to the case at hand, none of the representations by First Union expressed a clear intent to create an employment contract with the displaced employees. Furthermore, public policy again dictates that without a clear expression of this intent, the representations should not be construed to change the employment status of plaintiffs. First Union, as an employer, should not be discouraged from providing displaced employees with opportunities to apply for open positions. Encouraging these same employees to apply for the new positions should not be treated as a promise to employ in Virginia.
Finally, D.C. law requires the same result. In Fleming, the D.C. Circuit applied local D.C. law when considering the claims of plaintiff. 878 F.2d at 1473. Plaintiff relied upon various statements of his employer to argue that he was not an at-will employee. The statements included representations that AT&T, his employer, considered longevity of employment and lifetime employment to be goals of the company. Additionally, AT&T had created a personnel program with the stated purpose of ensuring fair and consistent treatment of all employees. Id. The court concluded that plaintiff's allegations were "manifestly insufficient to rebut the at-will presumption. An employer's literature stating generally that the company has policies of treating employees fairly and of providing post-termination counseling is irrelevant to whether a particular employee's contract is at-will . . ." Id. Again, the representations of First Union in this case are no different than those by AT&T in Fleming. First Union stated a policy of priority consideration, which did not in turn change the status of each at-will and eventually displaced employee.
Even if a contract had been formed by First Union's expression of priority consideration, plaintiffs would still have no remedy in the law. At most, plaintiffs were promised consideration for an at-will employment position. Most courts applying the common law have concluded that individuals who are promised at-will jobs, but whose offers of employment are retracted before the employment is to begin, have no remedy in contract law against the prospective employer. Sneed v. American Bank Stationary Co., 764 F. Supp. 65, 67 (W.D. Va. 1991) ("An offer for at-will employment is terminable at any time, which includes the time before the prospective employee assumes the position.")(quoting Sartin v. Mazur, 237 Va. 82, 375 S.E.2d 741, 743 (Va. 1989)). See also Tracy A. Bateman, Annotation, Employer's State-Law Liability for Withdrawing, or Substantially Altering, Job Offer for Indefinite Period Before Employee Actually Commences Employment, 1 A.L.R. 5th 401 (1992). The few courts that have allowed individuals to recover for withdrawn employment at-will offers limit damages to the cost of the offeree's reliance. Id. at § 7(a).
In the case at hand, plaintiffs were never offered a job. At most, there were told that they would receive priority consideration, a term that was never defined by either party. Plaintiffs state that they gave consideration for the promise, but they have not alleged that they relied to their detriment on the statement of priority consideration, and any such reliance would have been unreasonable given the vague nature of the statements.
Thus, the court concludes that plaintiffs have failed to rebut the presumption of at-will employment in order to establish that an employment contract was created. Under the law of each state, First Union's statements were nothing more than general statements of policy. In the alternative, the most defendants promised plaintiffs was consideration for at-will positions. Even if defendants did breach this promise, there is no remedy under the common law.
For these reasons, the court will grant defendants' motion for partial summary judgment on plaintiffs' state law breach of contract claims, and deny as moot plaintiffs' motion to maintain the contract claims as a class action.
A separate order shall be issued today.
Royce C. Lamberth
United States District Judge
For the reasons stated in the accompanying opinion, it is hereby
ORDERED that defendants' motion for partial summary judgment on plaintiffs' state law breach of contract claims is GRANTED, and it is further
ORDERED that Count 4 of the Seventh Amended Complaint is DISMISSED, and it is further
ORDERED that plaintiffs' motion to maintain the contract claims as a class action is DENIED as moot.
Royce C. Lamberth
United States District Judge