No. 85-3287.

797 F.2d 217 (1986)

Quinton J. OVERMAN, Jr., Plaintiff-Appellee, v. FLUOR CONSTRUCTORS, INC., Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

August 15, 1986.

Attorney(s) appearing for the Case

G. Phillip Shuler, Chaffe, McCall, Phillips, Toler & Sarpy, Julie Livaudais Dubin, New Orleans, La., for defendant-appellant.

Stephen W. Bricker, Bremner, Baber & Janis, Richmond, Va., George M. Strickler, Jr., New Orleans, La., for plaintiff-appellee.

Before WISDOM, RUBIN, and HIGGINBOTHAM, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Invoking diversity jurisdiction, a discharged employee sued his employer for breach of a contract of employment that, he contended, guaranteed him employment for the duration of a construction project. The jury returned a verdict holding that, as required by Louisiana law to prevent the employment from being terminable at will, the contract was for a definite term and was not terminated by the employer for just cause. The evidence presented at trial together with all inferences that might be drawn in the plaintiff's favor establishes only that the employee was hired for as long as his services were needed, not for the duration of the construction project itself. In the absence of evidence either that his employment was for a fixed time or that it was to continue until the occurrence of a specific, readily ascertainable event, we hold that the term of employment was not sufficiently definite to establish the kind of contract required by Louisiana law, and accordingly reverse the judgment below.


Quinton J. Overman, Jr., the plaintiff, was employed by Fluor Constructors, Inc. as a quality control inspector at a construction project in Chalmette, Louisiana. The parties agree that Louisiana substantive law applies to this case because the employment contract was executed entirely in Louisiana.

Under Louisiana law a contract of employment is considered a lease of personal services terminable at the will of either party unless it is for "a certain time."1 The Louisiana jurisprudence, as well as the federal cases applying Louisiana law, interpret the term "certain" to include not only an agreement for a stated time, but also one for a "readily ascertainable period,"2 or for a period defined by a readily ascertainable future event.3 Thus, there is a definite term of employment in a contract hiring an actor until the end of the current opera season,4 an employee until a decedent's estate is acquired and distributed,5 or an overseer for the crop season.6 In interpreting the intention of the parties with regard to the duration of the contract, the court may consider all of the surrounding circumstances including whether the employee's actions in relocating his family make it likely that he expected employment security.7

Although one of our cases has stated, somewhat inadvertently, that the clearly erroneous standard applies to review of the jury's findings on these questions,8 the correct standard for review of a jury verdict is whether there is substantial evidence to support it,9 a criterion that gives more weight to the jury verdict than is given even to the district judge's findings of fact. In applying the substantial evidence test, the court must view the evidence in the light, and with all reasonable inferences, most favorable to the party whom the jury favored.10


Even applying this generous standard, however, the jury's verdict cannot be sustained. The burden of proof that his contract met the requirements of the Louisiana Civil Code was on Overman. Neither Overman nor any other witness testified that he was hired for a definite or ascertainable term. Although in one instance he testified that he understood he had been employed for the duration of the construction project, he testified that his employment was to last only until his particular services were no longer needed on the job. While employment until a construction project is completed may satisfy the requirements of employment for a definite term under Louisiana law, neither Overman nor any other witness testified that his work as a quality control inspector was to continue until the entire project was completed and accepted by the owner. At that time, a readily ascertainable event, like the end of an opera or crop season, would occur. Its precise date could not be forecast, but when it happened there would be no doubt that the construction project had ended — just as when the last crop is gathered, the harvest season has ended, and when the last curtain falls, the opera season has ended. As Yogi Berra has reminded us, operas "ain't over until the fat lady sings," and ball games don't end until the last player is put out. But when these events occur, the finale is objectively determinable.

In this case, no objectively determinable end to Overman's employment could have been defined when he was hired. No single foreseeable event triggered the end of his job. He was hired to inspect the quality of welding. As the construction project progressed, the need for his services would diminish. The time when his services would no longer be needed depended on a number of factors and, ultimately, on the judgment of his supervisor. Such a flexible relationship, promising employment until one's services are no longer needed, does not establish a fixed term, and, therefore, in Louisiana at least, must be regarded as employment at will.

There is no doubt that Overman was fired before the need for quality control inspection had ended, that is, before the time that he and Fluor had anticipated his job would end. In the absence of a contract for a definite and ascertainable term, however, his early termination does not give rise to a cause of action.11

For these reasons, the verdict of the jury lacks substantial support in the record and the judgment of the district court is REVERSED.


1. La.Civ.Code Arts. 2747 & 2749; Comment, Lease of Personal Services in Louisiana: Breach and Damages, 23 La.L.Rev. 553 (1963).
2. Harrosh v. Fife Bros. Health Ass'n, 1 So.2d 323, 325 (La.App.1941) (quoting Pitcher v. United Oil & Gas Syndicate, Inc., 174 La. 66, 139 So. 760, 761 (La.1932)); Martinez v. Behring's Bearing Services, Inc., 501 F.2d 104, 105 (5th Cir.1974).
3. Camp v. Baldwin-Melville Co., 123 La. 257, 48 So. 927 (La.1909).
4. Id.
5. Angelloz v. Rivollet, 2 La.Ann. 652 (1847).
6. Branch v. Alexander, 231 La. 487, 91 So.2d 767 (La.1956).
7. Lanier v. Alenco, 459 F.2d 689, 692 (5th Cir.1972).
8. Higgins v. Smith International, Inc., 716 F.2d 278, 284 (5th Cir.1983) (Apparently applying Fed.R.Civ.Proc. 52(a) because it cites Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (which reviewed findings of fact by a district court)).
9. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc).
10. See, e.g., United States v. 329.73 Acres of Land, 666 F.2d 281 (5th Cir.1982); Western Hills Bowling Center, Inc. v. Hartford Fire Ins. Co., 412 F.2d 563 (5th Cir.1969); see also 5A Moore's Federal Practice ¶ 50.07[2] (1986); 9 C. Wright & A. Miller, Federal Practice and Procedure, § 2524 (1971).
11. Hoover v. Livingston Bank, 451 So.2d 3, 5 (La.App.1984); Jackson v. East Baton Rouge Parish Indigent Defender's Board, 353 So.2d 344 (La.App.1977).


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