USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 98-1441
BRUCE MICHELSON,
Plaintiff, Appellant,
v.
DIGITAL FINANCIAL SERVICES,
A UNIT OF GENERAL ELECTRIC CAPITAL CORPORATION,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
____________________
Before
Torruella, Chief Judge,
Aldrich and Cyr, Senior Circuit Judges.
_____________________
Thomas G. Waldstein, with whom Gaffin & Waldstein, was on
brief, for appellant.
Barry A. Guryan, with whom Karen K. Burns, Epstein Becker &
Green, P.C. and Lawrence Peikes were on brief, for appellee.
____________________
February 16, 1999
____________________ TORRUELLA, Chief Judge. Before the Court is plaintiff-
appellant Bruce Michelson's appeal of the district court's entry of
summary judgment against his five causes of action arising out of
his five-month employment at defendant-appellee Digital Financial
Services ("DFS").
BACKGROUND
During the summer of 1994, Michelson was employed at non-
party Digital Equipment Corporation ("Digital") as a Strategic
Account Business Manager assigned to Digital's General Electric
account. In August of 1994, Jeff Amsler, General Manager of DFS,
approached Michelson and asked whether he would consider employment
at DFS. Michelson then had two meetings with Mike Kelley, DFS'
Director of Sales, to discuss the possibility of hiring Michelson.
On August 19, 1994, Kelley, on behalf of DFS, sent
Michelson a letter offering him employment for the position of
National Account Manager ("NAM"). The letter stated that
Michelson's annual target compensation would be $150,000, which
consisted of an $85,000 fixed salary, a $15,000 Management by
Objective ("MBO") Bonus Plan, and participation in the 1994
Variable Incentive Compensation ("VIC") Plan. The letter stated
that Michelson would be eligible to participate in the 1994 VIC
Plan and that Michelson's VIC would be $50,000 after reaching
minimum volume thresholds. The letter also stated that there was
no cap on the compensation plan.
Michelson claims that, in his discussions with Amsler,
Kelley, and Marketing Manager Joseph Pucciarelli, many promises and
representations were made to him that were not included in the
offer letter. Despite provisions to the contrary in both the 1994
VIC Plan and the offer letter, Michelson claims that Kelley told
him that there was no minimum volume threshold for the 1994 VIC
Plan. Michelson also claims that Pucciarelli told him that he
would be pleased with his compensation package, which included
participation in the VIC Plan. Michelson claims that he was
assured that he would be earning more than the $225,000 that he
earned annually at Digital. Michelson claims that he was promised
a company car, medical benefits, vacation, and other benefits.
Michelson formally accepted the offer of employment by
letter dated August 27, 1994 and subsequently became DFS' National
Account Manager for the east coast territory. According to DFS,
Michelson's principal responsibilities were: (1) to develop and
drive an installed base selling strategy called "roll-the-base,"
which Michelson designed, and (2) to assume a leadership role on
transactions involving certain large national accounts. For the
remainder of 1994, Michelson was also assigned to work with the
District Leasing Managers ("DLMs") in the east coast territory on
closing various deals. DFS claims that this assignment was part of
an aggressive attempt to overcome a revenue shortfall it was
experiencing at the time.
In early 1995, Michelson was transferred from the sales
organization to the marketing organization, where he reported to
Pucciarelli. DFS claims that Michelson's primary responsibilities
in the marketing organization were: (1) to develop installed base
selling as a core competency of DFS, and (2) to manage the closure
of transactions with several specific accounts. Michelson claims
that, between January 1, 1995 and March 14, 1995, he initiated
sales contracts worth more than $100 million.
On March 14, 1995, DFS terminated Michelson's employment.
Michelson claims that DFS terminated him in order to: (1) deprive
him of commissions owed to him, and (2) steal his knowledge,
skills, and professional business. DFS claims that the termination
was part of a downsizing prompted by unsatisfactory financial
results. DFS claims that Pucciarelli selected Michelson's position
as the marketing position to eliminate because: (1) he was unable
to translate his ideas into actionable programs; (2) he did not
have a sufficiently detailed working knowledge of DFS' business;
(3) he had significant and ongoing problems with other DFS
employees; and (4) the other executive in the marketing group had
more potential to deliver revenue to DFS.
After his termination, Michelson demanded the commissions
to which he claimed he was entitled for 1994 and 1995. DFS refused
to pay any commissions and refused to provide any accounting for
such commissions.
On March 13, 1996, Michelson filed the present action
against DFS in the Superior Court for the Commonwealth of
Massachusetts, County of Middlesex. DFS removed the action to
United States District Court for the District of Massachusetts.
After subsequent amendments to the complaint, Michelson raised five
common law causes of action: (1) breach of contract; (2)
misappropriation; (3) fraudulent misrepresentation; (4) wrongful
discharge; and (5) promissory estoppel. The first cause of action
alleged that DFS breached the employment contract with Michelson by
refusing to pay him any incentive compensation. The second cause
of action alleged that DFS fraudulently misappropriated Michelson's
"roll-the-base" selling strategy. The third cause of action
alleged that DFS made false representations to Michelson regarding
the level of incentive compensation Michelson could expect to earn
while working for DFS. The fourth cause of action alleged that DFS
wrongfully discharged Michelson by dismissing him in order to
deprive him of earned and future commissions. The fifth cause of
action alleged that DFS' promises of incentive compensation are
binding under a theory of promissory estoppel even if not part of
a binding contract.
Following discovery, DFS moved for summary judgment on
all causes of action, and Michelson opposed the motion. In a
Memorandum and Order dated December 23, 1997, the district court
made preliminary rulings regarding each cause of action. The court
found that DFS made a preliminary showing that no genuine issue of
fact remained on any of Michelson's causes of action. The court
gave Michelson one more opportunity to produce "specific, relevant
and admissible evidence" sufficient to demonstrate that a genuine
of issue of fact remained. The court required that Michelson:
(1) submit precise special verdict questions that identify the
genuine issues in contention; (2) explain why those questions are
material; and (3) point to admissible evidence that could support
a favorable answer to those questions. The court cautioned
Michelson against drafting questions that called for generalized,
"black-box" or unexplained findings. Both parties then submitted
responses to the court's Memorandum and Order.
On February 27, 1998, the district court issued a
Memorandum and Order granting DFS' motion for summary judgment and
entering judgment against Michelson on all five causes of action.
The court found that, despite the further opportunity to present
special verdict questions and evidence, Michelson again failed to
meet his burden. The court found that Michelson: (1) failed to
propose questions that addressed every element of his causes of
action; (2) failed to show the materiality of most of the proposed
questions; (3) failed to propose adequately specific questions; and
(4) failed to point to specific, relevant, and admissible evidence
that could answer the proposed questions in his favor. The court
then discussed each of Michelson's claims separately and held that
Michelson failed to raise a genuine issue of material fact with
regard to any of them. Final judgment was entered in favor of DFS
on March 3, 1998. Michelson appeals, and we affirm. DISCUSSION
I. Waiver of Appellate Review
Before we reach the merits of Michelson's appeal, we feel
compelled to address DFS' argument that Michelson has waived his
right to appellate review. DFS cites King v. Town of Hanover for
the following proposition:
It is an established appellate rule that
"issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed
argumentation, are deemed waived . . . . It
is not enough merely to mention a possible
argument in the most skeletal way, leaving the
court to do counsel's work . . . . Judges are
not expected to be mindreaders. Consequently,
a litigant has an obligation to spell out its
arguments squarely and distinctly, or else
forever hold its peace."
116 F.3d 965, 970 (1st Cir. 1997)(quoting Willhauck v. Halpin, 953
F.2d 689, 700 (1st Cir. 1991)); see also Strahan v. Coxe, 127 F.3d
155, 172 (1st Cir. 1997)(citing King in support of court's decision
not to review a claim mentioned in a statement of issues, but not
argued further in the appellate brief), cert. denied, 119 S. Ct. 81
(1998) and 119 S. Ct. 437 (1998); Ramos v. Roche Products, Inc.,
936 F.2d 43, 51 (1st Cir.) (applying the principle that an issue
which is mentioned on appeal but not briefed is considered waived),
cert. denied, 502 U.S. 941 (1991).
DFS argues that "[t]he Argument section of Michelson's
brief is so disorganized as to be incomprehensible." DFS claims
that Michelson has done no more than recite a series of unrelated
and unordered concepts and principles, without any meaningful
reference to his theories of recovery. DFS notes that Michelson's
analysis is not divided into separate causes of action and that
Michelson fails to even define the elements of his claims. DFS
finally argues that Michelson's brief does not explain why the
district court erred in finding that he could not satisfy one or
more of the elements of his claims.
While we agree with much of DFS' critique of Michelson's
arguments on appeal, we do not find that such infirmities waive
Michelson's right to appellate review. Michelson does make an
attempt to discuss some of his causes of action and does make an
attempt to point to the evidence which creates a genuine issue with
regard to those causes of action. Therefore, we address the
arguments that Michelson adequately raises and supports, with an
eye towards waiver of the arguments that he does not.
II. The District Court's Grant of Summary Judgment Against
Michelson's Claims
Michelson argues that the district court erred in
entering summary judgment against his five claims. Summary
judgment is proper where "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits,
if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c). The moving party bears the initial
burden, which may be discharged by pointing to the absence of
adequate evidence supporting the nonmoving party's case.
See Hinchey v. Nynex Corp., 144 F.3d 134, 140 (1st Cir. 1998)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once
the moving party has carried this burden, the onus is on the
nonmoving party to present facts that show a genuine issue for
trial. See Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25
(1st Cir. 1997); LeBlanc v. Great American Ins. Co., 6 F.3d 836,
841-42 (1st Cir. 1993), cert. denied, 511 U.S. 1018 (1994). "[A]
party opposing a properly supported motion for summary judgment may
not rest upon mere allegation or denials of his pleading, but must
set forth specific facts showing that there is a genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)(citing Fed. R. Civ. P. 56(e)). "[P]laintiff . . . [must]
offer[] . . . 'significant probative evidence tending to support
the complaint.'" Id. at 256 (quoting from First National Bank of
Arizona v. Cities Service Co., 391 U.S. 253, 290 (1968)). We
review the district court's grant of summary judgment de novo. SeeSerrano-Cruz, 109 F.3d at 25.
A. Breach of Contract: Michelson's Entitlement to a
VIC Award
Michelson's first cause of action alleges that DFS
breached an employment contract with Michelson under which
Michelson was to receive variable incentive compensation for the
years 1994 and 1995. To succeed on his breach of contract action,
Michelson must demonstrate: (1) that the parties reached a valid
and binding agreement with regard to variable incentive
compensation; (2) that DFS breached the terms of the VIC aspect of
the agreement; and (3) that Michelson suffered damages from the
breach. See Coll v. PB Diagnostic Systems, Inc., 50 F.3d 1115,
1122 (1st Cir. 1995). The district court found that Michelson
failed to raise a genuine issue with regard to the first element.
Michelson makes several arguments that summary judgment
was inappropriate against this cause of action. Michelson first
claims that DFS did not meet its burden of proof because it failed
to submit any evidence to support its allegations that Michelson
was not entitled to any commissions and benefits. What this
argument ignores is that DFS can carry its summary judgment burden
by pointing to an absence of evidence supporting Michelson's claim
that he was entitled to those commissions. See Hinchey, 144 F.3d
at 140. The district court entered summary judgment against
Michelson because it found that Michelson offered no evidentiary
support for his claim that he was entitled to VIC awards for 1994
and 1995. Even assuming that DFS did not offer sufficient evidence
to show that Michelson was owed no commissions, DFS did not need to
do so in order to prevail at the summary judgment stage.
The rest of Michelson's arguments regarding this cause of
action fit into two categories: (1) arguments that a contract
existed that entitled Michelson to participate in the 1994 VIC
Plan; and (2) arguments that Michelson satisfied the prerequisites
for a VIC award under that contract for the last quarter of 1994.
1. Existence of a Contract That Included Variable
Incentive Compensation for the Last Quarter of
1994
In its December 23, 1997 Memorandum and Order, the
district court found that DFS made a preliminary showing that no
contract existed that entitled Michelson to receive incentive
compensation for the years 1994 or 1995. In its February 27, 1998
Memorandum and Order, the district court found that Michelson
failed to raise a genuine issue as to whether he was offered (and
subsequently accepted) definite or certain VIC payments as part of
his employment contract. Because the formation of a contract with
such a term is a legal element of Michelson's breach of contract
claim, the district court entered summary judgment against
Michelson's claim. Michelson argues that a contract existed that
entitled him to receive variable incentive compensation for the
last quarter of 1994.
Michelson argues that he would never have left his
previous position in which he earned more than $225,000 if he had
not been assured that he would be earning a great deal more with
DFS. This argument fails because, as appellees point out,
Michelson admits that he was not "guaranteed" a higher salary. In
fact, the offer letter itself states that Michelson's targeted
compensation would be $150,000, which is substantially less than
the $225,000 that Michelson made at his previous position.
Michelson may well have left his position because he had the
opportunity to earn more than this, even without guarantees that he
would earn more. In any event, this argument is merely an
unsupported inference and does not constitute evidence that
Michelson was contractually entitled to VIC compensation.
Therefore, this argument does not create a genuine issue that
precludes summary judgment.
However, our rejection of this argument does not mean
that no contract existed that included VIC Plan participation. The
August 19, 1994 offer letter from DFS stated that he would be
"eligible to participate in the variable incentive compensation
plan for the remainder of 1994." The letter also stated that
Michelson's compensation would consist of a fixed salary, an MBO
Bonus Plan, and variable incentive compensation. DFS argues that
the letter only indicates that Michelson was eligible to
participate in the 1994 VIC Plan, not that any benefits or
provisions of the Plan were binding. DFS argues that Michelson has
failed to propound any evidence indicating that, in his case, the
VIC Plan was a binding contractual provision.
The district court agreed with DFS and found that the
offer letter could only be reasonably understood to have offered
the opportunity to earn VIC compensation. We agree with the
district court to the extent that it found that Michelson had to
reach a minimum sales threshold before he was entitled to receive
VIC awards under the Plan, but we do not agree with the district
court to the extent that it found that Michelson's participation in
the 1994 VIC Plan was not part of the contract.
The offer letter expressly stated that Michelson would be
eligible to participate in the 1994 VIC Plan. In that letter,
Michelson was offered the position and was informed that his
compensation for the remainder of 1994 would consist of three
components: (1) a fixed base salary of $85,000; (2) an MBO bonus of
$15,000; and (3) participation in the 1994 VIC Plan, with a
targeted VIC award of $50,000. Michelson accepted this offer by
letter dated August 22, 1994. Once the offer was accepted,
Michelson's participation in the 1994 VIC Plan was as much a part
of his at-will employment contract as was his base salary. We
agree with the district court that Michelson has not demonstrated
that the contract bound DFS to make "certain" payments of VIC to
Michelson, in the sense that DFS was bound to pay Michelson a VIC
award regardless of whether he met his minimum thresholds. The
letter expressly states that Michelson had to reach minimum
thresholds to receive VIC compensation. However, the opportunity
to reach those thresholds and the right to be compensated with VIC
if he reached them were clearly a part of the offer that Michelson
accepted. Therefore, we find that Michelson has offered sufficient
evidence to raise a genuine issue on the question of whether his
employment contract included, as a compensation term, his
participation in the VIC Plan for 1994.
2. Michelson's Entitlement to a VIC Award Under the
1994 VIC Plan
Even if Michelson's contract with DFS included a
provision for participation in the VIC Plan, Michelson was not
entitled to receive a VIC award until he satisfied the Plan's
prerequisite of reaching the minimum sales volume threshold for the
last quarter of 1994. Michelson first argues that he was entitled
to a VIC award for 1994 because he was assured after meetings with
Kelley that there was no minimum volume threshold for the 1994 VIC
Plan. However, we cannot accept Michelson's argument that no
minimum threshold existed. The August 19, 1994 offer letter
specifically stated that Michelson would be eligible to participate
in the VIC plan for the remainder of 1994 and that his VIC would be
$50,000 after reaching minimum volume thresholds. The 1994 VIC
Plan itself provides that only the amount of volume over the
minimum threshold will qualify for VIC payment. Additionally,
Michelson repeatedly admits elsewhere that there was a minimum
volume threshold for the Plan. See, e.g., Michelson Deposition, at
page 115, lines 6-13 ("Q. What was your minimum threshold? A. Ten
million to 12 million . . . . Mike had given me a number of $48
million on an annual basis, and when you divide it by 4 [it] comes
out to 12 million, but in conversations I had one on one with Mike,
he talked about 10 million."); Proposed Special Verdict Questions
and Memorandum, at 2 ("Kelley agreed with Michelson to a minimum
threshold of 10-12 million dollars annually."); Appellant's Brief,
at 15 (arguing that Michelson met his minimum volume thresholds);
Plaintiff's Memorandum in Opposition to Defendant's Motion For
Summary Judgment, at 13 ("The offer to Mr. Michelson included a
commission or variable incentive component which included . . .
attainable minimum thresholds . . . ."). Thus, Michelson was only
entitled to receive a VIC award under the employment contract and
the VIC Plan if he surpassed his minimum volume threshold.
Michelson next claims that the evidence shows that he was
entitled to a VIC award because he met his minimum volume
threshold. He states that he was responsible for over $100 million
in sales, more than doubling the expected sales. However, he
offers no evidence in support of this bald assertion. Also,
Michelson's brief states that he initiated this $100 million in
sales contracts between January 1, 1995 and March 14, 1995. Thus,
even if Michelson's asserted volume is accurate, it would have no
impact on the question of whether he earned commissions for 1994.
Michelson also argues that because other sales people for
whom he was responsible received commissions, he was also entitled
to a commission. Michelson argues that if those sales people
reached their respective thresholds, then he must have reached his
threshold as well, because he was to be credited with their sales.
In support of this argument, Michelson offers a table that purports
to list the 1994 compensation, including VIC awards and thresholds,
of 28 DFS employees. There are several problems with this
argument. First, while the table lists the thresholds of 28
employees, neither Michelson nor DFS informs the Court of what
Michelson's minimum threshold for the last quarter of 1994 was. A
review of the record reveals that Michelson apparently believed
that the minimum threshold was approximately $10-12 million. SeeMichelson Deposition, at page 115, lines 6-13. The 1994 VIC Plan
states that the minimum threshold is the "booked volume target for
the measurement period," but neither party quantifies this value
for the last quarter of 1994. Without knowing Michelson's
threshold, it is impossible to determine if he must have reached it
simply because his subordinates reached their thresholds.
Second, Michelson does not name the individuals whose
sales he was responsible for or the amounts of their respective
sales. Michelson merely submits an unlabeled and undated table
indicating that 28 individuals received VIC awards for 1994,
meaning that those 28 individuals must have reached their
thresholds for that period. Michelson does not inform the Court of
which of the listed individuals were on his "team" and which were
not. Our own review of the record reveals that, as part of a
special year-end program, Michelson was responsible for eight of
the 28 employees listed on the table. See Kelley Deposition, at
36-37. However, neither the table nor Michelson cites any sales
figures for those eight individuals. Nor does Michelson offer
evidence that his subordinates met their minimum thresholds for the
fourth quarter of 1994. At best, the table indicates that the
listed individuals met their annual threshold for 1994, but
Michelson was only employed for the final quarter of 1994. As a
result of all of these deficiencies, this table provides little
help to Michelson in proving that he or his subordinates met their
sales volume thresholds for the fourth quarter of 1994.
Third, Michelson's argument is dependent upon the idea
that, in calculating his sales for VIC purposes, DFS must attribute
to Michelson the sales of his subordinates. Under a practice
called "shadowbooking," a supervisor is attributed the sales of his
or her subordinates for purposes of determining the supervisor's
own sales volume. However, as noted by DFS, Michelson offers no
evidence to support the conclusion that he was contractually
entitled to avail himself of the "shadowbooking" practice. The
1994 VIC Plan makes no mention of such a practice and states that
the interpretation of the VIC Plan rests entirely with DFS
management. In his deposition, Kelley notes that the
"shadowbooking" practice was considered for the year-end program,
but that Amsler, consistent with his role in interpreting the VIC
Plan, decided that the financial results were insufficient to
justify "shadowbooking" any of the National Account Managers. In
Michelson's deposition, he claims that his understanding was that
he would be "shadowbooked" by the sales people for the east
territory, but he points to no contract or DFS policy that entitled
him to such a practice. Michelson does not even allege that anyone
at DFS told him that his sales would be calculated using the
"shadowbooking" procedure. Nor does he offer any evidence or
argument that Amsler did not have the authority to exercise the
discretion that he did. Therefore, we do not find that Michelson's
"shadowbooking" argument raises a genuine issue of fact regarding
whether Michelson was entitled to commissions for the fourth
quarter of 1994.
Michelson next offers an undated, handwritten letter from
Kelley to Amsler in which Kelley allegedly recommended that
Michelson receive a commission. However, in the letter, Kelley did
not recommend Michelson for a VIC award; he recommended him for an
MBO bonus, which has no bearing on the VIC calculations. Moreover,
even if Kelley had recommended that Michelson receive a VIC award,
Kelley's recommendation would not provide Michelson with any
contractual rights. Michelson next argues that Kelley confirmed in
the letter that Michelson had participated in $9 million in
fundings in one particular program. However, the letter does not
limit this number to one particular program; what the letter
actually states is that Michelson participated in $9 million worth
of fundings for the fourth quarter of 1994. Since the only
evidence of the amount of Michelson's threshold is his own
testimony that it was $10-$12 million, this statement that
Michelson participated in only $9 million does not help him.
Michelson claims that this number represents only a portion of his
responsibility, but he does not quantify the sales or fundings from
any of his other alleged responsibilities. Additionally, if
Michelson is correct that this represents only a portion of his
responsibilities, the context of the statement in the letter
indicates that the portion to which Kelley refers is the
supervision of his team of sales people. As noted above, Amsler
was not contractually obligated to credit Michelson with sales
resulting from his supervision of the team. Thus, this letter
offers little assistance to Michelson.
In sum, while Michelson has raised a genuine issue
regarding whether his contract included participation in the 1994
VIC Plan as part of his compensation, Michelson has not raised a
genuine issue regarding whether he had actually satisfied the
eligibility prerequisites for any VIC payments under the Plan.
Therefore, summary judgment was properly entered against
Michelson's breach of contract cause of action claiming that DFS
failed to pay him VIC compensation.
B. Promissory Estoppel
Under Massachusetts law, "[a] promise which the promisor
should reasonably expect to induce action or forbearance on the
part of the promisee or a third person and which does induce such
action or forbearance is binding if injustice can be avoided only
by enforcement of the promise." Hinchey, 144 F.3d at 143 (quoting
Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d
1364, 1380 (1st Cir. 1991)).
Michelson makes only a short reference to his promissory
estoppel cause of action in his brief. Citing Hall v. Horizon
House Microwave, Inc., 506 N.E.2d 178, 184 (Mass. App. Ct. 1987),
Michelson argues that an element of promissory estoppel is that the
party invoking it must have reasonably relied on the alleged
promise to his detriment. Michelson claims that he reasonably
relied to his detriment on his managers' promises, by leaving his
previous position and by using all of his skills, talents, and
knowledge in order to accumulate large amounts of sales.
The district court found that Michelson's promissory
estoppel claim failed as a matter of law for the same reasons the
breach of contract action failed: there was no definite offer for
payment of a certain amount of VIC. See February 27, 1998
Memorandum and Order, at 9. As noted in our discussion above, we
find that there was a definite offer to make VIC compensation part
of Michelson's employment, and we find that this offer was
accepted, but we do not find that DFS breached the resulting
employment contract. Participation in the 1994 VIC Plan was part
of Michelson's employment; Michelson just could not take advantage
of this participation because he did not meet his thresholds.
Therefore, unless Michelson can demonstrate a promise other than
participation in the 1994 VIC Plan that he reasonably relied on to
his detriment, his promissory estoppel claim fails.
It is possible that Michelson based his promissory
estoppel cause of action on a promise other than the promise of VIC
Plan participation. Besides the contractual promise of
participation in the 1994 VIC Plan, there are four alleged promises
or sets of promises from DFS management that Michelson refers to in
his brief. First, he claims that "he was assured that there was no
minimum threshold for the incentive compensation plan" and that "he
was entitled to compensation for all volumes of sales." Second,
Michelson claims that he was told by Pucciarelli that he would be
pleased with his compensation package, which included the VIC Plan
participation. Third, Michelson claims that he "was promised a[n]
$85,000.00 base salary, a $15,000 payment in February . . . under
the Management by Objective (MBO) plan, plus commission based upon
sales under the VIC program, a company car, medical benefits,
vacation, and other benefits." Finally, Michelson claims that he
was promised "that there was no cap on the amount of commission
Michelson could earn."
The first alleged promise does not raise a genuine issue
of material fact for two reasons: (1) Michelson admits that he was
told his threshold would be between $10 million and $12 million,
and (2) the 1994 VIC Plan itself, which Michelson reviewed prior to
accepting the position, indicates that minimum threshold
requirements applied to the calculation of VIC awards. The former
reason negates any genuine issue regarding whether the promise was
actually made. See Colantuoni v. Alfred Calcagni & Sons, Inc., 44
F.3d 1, 4-5 (1st Cir. 1994) ("When an interested witness has given
clear answers to unambiguous questions [in his deposition
testimony], he cannot create a conflict and resist summary
judgment with an affidavit that is clearly contradictory, but does
not give a satisfactory explanation of why the testimony is
changed."). The latter reason makes it clear that any reliance on
such a promise would not have been reasonable without further
inquiry and assurances from DFS. See McMahon v. Digital Equipment
Corp., 162 F.3d 28, 39 (1st Cir. 1998) (finding reliance to be
unreasonable as a matter of law "where a written statement
conflicts with an oral statement," because "Massachusetts law
assumes that a reasonable person will investigate further"); Coll,
50 F.3d at 1124 ("Where a written statement conflicts with a prior
oral representation, reliance on the oral representation is
generally held to be unreasonable.").
The second alleged promise -- Pucciarelli's promise that
Michelson would be pleased with his compensation package, which
included the VIC participation -- fares no better. As noted above,
the promise of VIC participation was not breached, and the promise
that Michelson would be pleased with his compensation package can
hardly be described as a binding "promise." A promissory estoppel
cause of action demands a promise involving "commitment," or the
"manifestation of an intention to act or refrain from acting in a
specified way." Rhode Island Hosp. Trust Nat. Bank v. Varadian,
647 N.E.2d 1174, 1179 (Mass. 1995). The type of promise attributed
to Pucciarelli evidences no intent to be bound and consists of no
more than the type of "inconclusive" and "inchoate negotiations"
that Massachusetts courts have found to be insufficient. See Hall,
506 N.E.2d at 184; see also Santoni v. Federal Deposit Ins. Corp.,
677 F.2d 174, 179 (1st Cir. 1982) (stating that the promise must be
"definite and certain" so that the promisor should foresee that it
would induce reliance by the promisee). Additionally, any reliance
on this vague representation that Michelson would be "pleased" is
certainly not reasonable.
With regard to the third set of promises, Michelson does
not allege that he was denied any of the benefits promised, other
than a VIC award. The record does not reflect any evidence that
Michelson was deprived of his base salary, his MBO bonus, his
company car, medical benefits, or vacation. The same is true of
the fourth alleged promise that there was no cap on the amount of
commissions Michelson could earn. Michelson does not allege that
he was hampered by the imposition of a cap on VIC awards. Thus,
even if he had a claim that this promise should be enforced on
estoppel grounds, he has not alleged that DFS breached that
promise.
In sum, none of the promises alleged by Michelson can
support a promissory estoppel cause of action. Therefore, the
district court properly entered summary judgment against this
claim.
C. Wrongful Discharge
Michelson's wrongful discharge claim alleges that his
employment was terminated without cause in order to deprive him of
earned and future income, in the form of incentive compensation.
Michelson cites Fortune v. National Cash Register Co., 364 N.E.2d
1251, 1257 (Mass. 1977), for the proposition that an employer may
not terminate an at-will employee for the purpose of depriving the
employee of compensation that the employee had already earned and
which, with the mere passage of time, would have become payable.
The court in Fortune held that the implied covenant of good faith
and fair dealing is breached where an employer terminates an at-
will employee in order to deprive the employee of any portion of a
commission already earned but not yet payable. See id.; see also
Coll, 50 F.3d at 1125 (citing Fortune and stating that "[u]nder
Massachusetts law, the implied covenant of good faith and fair
dealing prohibits an employer from terminating an employee in order
to deprive him of a benefit to which he is entitled"). In Gram v.
Liberty Mut. Ins. Co., 429 N.E.2d 21, 29 (Mass. 1981), the Supreme
Judicial Court of Massachusetts extended this obligation to impose
liability on an employer who terminated an employee without good
cause and for the purpose of appropriating the employee's
commissions that were "reasonably ascertainable future compensation
based on his past services." The Gram court stated that the
employer's obligation of good faith and fair dealing requires that
the employer be liable for a "loss of compensation that is so
clearly related to an employee's past service, when the employee is
discharged without good cause." Id.; see also Coll, 50 F.3d at
1125 (citing Gram, 429 N.E.2d at 27-29). Thus, in order to succeed
on this claim, Michelson must prove that DFS terminated him without
good cause and in bad faith in order to deprive him of commissions
that have already been earned or were reasonably ascertainable
based on past services.
The district court found that Michelson failed to raise
a genuine issue on the question of whether DFS acted in bad faith.
See February 27, 1998 Memorandum and Order, at 12-13. The court
held that Michelson merely proposed verdict questions that called
for a "black-box" finding of bad faith without pointing to specific
admissible evidence to support such a determination. See id. at
13.
Michelson argues that he was terminated without good
cause in order to deprive him of the commissions owed to him under
his employment contract. As we have already stated, Michelson had
not earned any commissions under the 1994 VIC Plan, and Michelson
has not demonstrated that he had earned any commissions for 1995.
Thus, even if, as Michelson alleges, he was terminated without good
cause, he has not raised a genuine issue with regard to whether DFS
did so in order to deprive him of such commissions. Therefore, the
district court did not err in entering summary judgment against
Michelson's wrongful discharge cause of action.
D. Fraudulent Misappropriation and Fraudulent
Misrepresentation
In addition to the three causes of action discussed
above, Michelson's complaint contained two other causes of action:
(1) misappropriation and (2) fraudulent misrepresentation. The
district court entered summary judgment against Michelson's
misappropriation cause of action because he failed to raise a
genuine issue as to whether the GE Capital Employee Proprietary
Information Agreement conferred proprietary rights to the "roll-
the-base" sales strategy on DFS. See February 28, 1998 Memorandum
and Order, at 10-11. The district court entered summary judgment
against Michelson's fraudulent misrepresentation cause of action
because he failed to raise a genuine issue as to whether his
reliance on DFS' alleged misrepresentation that Michelson was going
to earn more with DFS than with his previous employer was
reasonable. See id. at 11-12. Michelson does not discuss either
of these grounds for summary judgment or even these causes of
action in his brief, so any claim of error is waived. See King,
116 F.3d at 970.
CONCLUSION
Based on the foregoing, the district court's entry of
summary judgment against Michelson's claims is AFFIRMED.