Michelson v. Digital Financial Services

Decision Date08 December 1998
Docket NumberNo. 98-1441,98-1441
Citation167 F.3d 715
Parties137 Lab.Cas. P 58,559 Bruce MICHELSON, Plaintiff, Appellant, v. DIGITAL FINANCIAL SERVICES, a Unit of General Electric Capital Corporation, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

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.

Before TORRUELLA, Chief Judge, ALDRICH and CYR, Senior Circuit Judges.

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 1 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, --- U.S. ----, 119 S.Ct. 81, 142 L.Ed.2d 63 (1998) and --- U.S. ----, 119 S.Ct. 437, 142 L.Ed.2d 356 (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, 112 S.Ct. 379, 116 L.Ed.2d 330 (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...

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