Petroskey v. LOMMEN, NELSON, COLE & STAGEBERG, PA

• Decision Date: 01 February 1994
• Docket Number: Civ. No. 3-92-543.
• Citation: 847 F. Supp. 1437
• Parties: John E. PETROSKEY, Plaintiff, v. LOMMEN, NELSON, COLE & STAGEBERG, P.A., a professional corporation, Phillip A. Cole, an individual, Defendants.
• Court: U.S. District Court — District of Minnesota

847 F. Supp. 1437

John E. PETROSKEY, Plaintiff, v. LOMMEN, NELSON, COLE & STAGEBERG, P.A., a professional corporation, Phillip A. Cole, an individual, Defendants.

Civ. No. 3-92-543.

United States District Court, D. Minnesota, Third Division.

February 1, 1994.

COPYRIGHT MATERIAL OMITTED

Robert J. Brenner, Brenner & Associates, Minneapolis, MN, for plaintiffs.

Lynn G. Truesdell, III, Bassford, Heckt, Lockhart, Truesdell & Briggs, Minneapolis, MN, for defendants.

ORDER

KYLE, District Judge.

Before the Court is plaintiff John E. Petroskey's Objections (Doc. No. 47) to the January 5, 1994 Report and Recommendation of United States Magistrate Judge Raymond L. Erickson (Doc. No. 45). In the Report and Recommendation, Magistrate Judge Erickson recommends granting the Defendants' Motion for Summary Judgment.

A district court must make an independent determination of those portions of a Report and Recommendation to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C).

Based upon an independent review of the files, records, and proceedings herein, including those portions of the Report and Recommendation to which Petroskey has filed Objections, the Report and Recommendation is ACCEPTED in its entirety and IT IS ORDERED that the Defendants' Motion for Summary Judgment (Doc. No. 19) is GRANTED.

ORDER and REPORT AND RECOMMENDATION

ERICKSON, United States Magistrate Judge.

At Duluth, in the District of Minnesota, this 5th day of January, 1994.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the Defendants' Motion¹ for Summary Judgment.

A Hearing on the Motion was held on December 14, 1993, at which time the Plaintiff appeared by Robert J. Brenner, Esq., and the Defendants appeared by Lynn G. Truesdell, Esq.

For reasons which follow, we recommend that the Defendants' Motion for Summary Judgment be granted.

II. Factual and Procedural Background

On February 1, 1987, John E. Petroskey ("Petroskey") was hired by the law firm of Lommen, Nelson, Cole & Stageberg, P.A. ("Lommen-Nelson") to serve as an Office Manager. In that capacity, Petroskey was engaged as an employee-at-will, who had no contract, implied or express, which governed the terms and conditions of his employment at Lommen-Nelson, nor has he claimed that he had received any promise of permanent employment at the firm.

At the time of his hire, the principal shareholders in Lommen-Nelson were John Lommen, Owen Nelson, the Defendant Phillip A. Cole ("Cole"), and Roger and Mark Stageberg. In Petroskey's estimation, from the outset his relationship with each of the principal shareholders was "great," with the notable exception of Cole. As described by Petroskey, Cole "would give directives, give orders, and you were expected to obey and follow." It was Petroskey's observation that his exchanges with Cole were strained throughout his stay at the firm and, in a particularly graphic depiction, Petroskey described Cole's demeanor toward him in the following terms:

He was screaming so loud, he was out of control, breathing heavily, spitting, red faced, swearing at the top of his lungs, smashing his fist into the desk, and whenever I tried to say something, he said shut up in a very loud voice, screaming, do not talk back to me, you listen to what I say, you do exactly as I say without saying another word. Do you understand? I said yes. I never said another word.

The focus of Cole's verbal rebuke was not restricted to Petroskey as, in Petroskey's opinion, a number of attorneys had left Lommen-Nelson because of Cole's treatment and, in Petroskey's view, the morale among the lawyers and staff suffered because of Cole's general demeanor.

Although recognizing Cole as "intolerant of behavior that he considered substandard," as "demanding," and as being unpleasant toward Petroskey, members of the firm regarded Cole as a "rainmaker," as a "perfectionist," and as one who liked "good performance" and who expected "things to move at a rapid pace." Without contradiction in this record, Cole had engaged in negativism and in personal attacks against various employees of the firm, including Petroskey. Nonetheless, in terms of his professional contributions to the firm, the following characterization of Cole also stands uncontroverted:

Phil Cole is a major contributor of business. Phil Cole is a sic probably one of the most respected trial lawyers in the State of Minnesota. He enhances the reputation of the firm. He's a major contributor to the management and operation of the firm. If he left, he would probably take a number of other lawyers and staff people with him.

According to the same appraisal, if Cole were to leave Lommen-Nelson, "it would have a substantial adverse impact on the firm." Whatever else may be said of Cole's acerbic and acrimonious criticism of Petroskey,² even Petroskey has acknowledged that the criticism was an expression of Cole's frustration over his perception of Petroskey's job performance, or that of an employee over whom Petroskey had responsibility.

In August of 1989, Lommen-Nelson merged with the Smith-Juster law firm, causing an immediate need to intermesh attorneys, office staff, computer equipment, and billing and accounting systems, as well as an abrupt demand for increased office space. In the estimation of Lommen-Nelson, Petroskey was unable to sustain the increased burdens imposed by the merger process. Petroskey denies any such inability and correctly notes that his personnel file is devoid of any adverse commentary on his job performance. Although acknowledging the substantial criticism that had been expressed by Cole and by Ronald L. Haskvitz,³ who was another senior shareholder in the firm and a social friend of Cole, Petroskey felt that the quality of his work was consistent with his annual increases in salary and his yearly receipt of bonuses.

In contrast to Petroskey's appraisal of his work performance, the management of Lommen-Nelson has characterized him as "rude, abrasive and insulting to personnel," and as an "obstructionist" who steadfastly resisted changes in the firm's operations and equipment. While the record reflects that, prior to his termination, Petroskey was never told that "he was in danger of losing his job," there is also an abundance of evidence that the attorneys, secretaries and the clients of the firm had voiced objections concerning Petroskey's management style, and his capabilities.

In March of 1991, three shareholders left the firm in order to form their own practice — for reasons which are contested. Petroskey avows that the attorneys had informed him that they could not endure Cole's criticisms further, while the management of Lommen-Nelson recounts that the parting shareholders have denied that Cole was the catalyst for their departure. In any event, the management of the firm and, most particularly, Leonard Juster ("Juster") — the firm's President — sought the assistance of a consultant who could evaluate the strengths and weaknesses of the firm, and who would make recommendations for improvement. In reliance upon the recommendations of other law firms, Juster retained Jeff Prouty ("Prouty") to undertake the consultancy.

Over the ensuing months, Prouty conducted a series of interviews with the attorneys and with certain of the staff members of Lommen-Nelson, including Petroskey. As reflected in the following colloquy, Petroskey attributed the problems at the firm solely to the presence of Cole:

Q. What did you tell Prouty?

A. I told him first of all that the problems with low morale and low productivity were the ones that we had all talked about with Leonard, with the other partners. It was Phil Cole. Phil Cole was the problem with the firm.

Q. From your point of view?

A. I told him that Phil Cole was the problem with the firm.

* * * * * *

Q. Did you tell him anything else?

A. He asked me what I thought the solution to the problem would be, and I told him the solution would be what most people I talked to about the problem thought it would be. It would be solved if Phil Cole left the firm.

* * * * * *

Q. Did you bring up other solutions?

A. No, I didn't.

Q. Your solution was Phil leaves the firm, right?

A. Yes.

Similar criticism of Cole had been expressed by Petroskey in the past. In March of 1991, Cole had submitted a resignation letter — which was later withdrawn — and, at that time, Petroskey advised Juster that he would take a 10 percent cut in pay if the firm were to terminate Cole, and it was Petroskey's surmise that there were many other people "who would do the same."

In June of 1991, after Prouty's interview with Petroskey and following a weekend retreat that he had conducted for the law firm, Prouty issued a brief report which included the following recommendation:

YOUR ADMINISTRATIVE HELP..... If it was my firm, I'd hire an administrator with "management experience in a professional services firm" to be a key player in marketing, finance, human resource, technology, and general management issues.

Subsequently, Juster continued his consultation with Prouty in order to help the firm "work through its current management issues," and he requested Prouty to make recommendations "for an assignment of responsibilities for various management functions so we can go forward with our primary business as lawyers, not administrators." Prouty conducted additional interviews with the Lommen-Nelson lawyers and, in a report that was telefaxed to Juster on October 6, 1991, he made the following recommendation:

HIRE A TALENTED FIRM ADMINISTRATOR —Far too much lawyer time is being spent on administrative issues. Many of the issues that you raised in the interviews dealt with computers, paralegals, messenger service, office assignments,

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