Michelson v. Digital Financial ( 1999 )

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.