
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1680                                   WILLIAM G. COLL,                                Plaintiff - Appellant,                                          v.                             PB DIAGNOSTIC SYSTEMS, INC.,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               David Rapaport, with  whom Rapaport & Rapaport, was on brief               ______________             ___________________          for appellant.               Scott C. Moriearty, with whom  Laurie F. Rubin and  Bingham,               __________________             _______________      ________          Dana & Gould, were on brief for appellee.          ____________                                 ____________________                                    March 30, 1995                                 ____________________                    TORRUELLA, Chief Judge.  This appeal comes to us on the                    TORRUELLA, Chief Judge.                               ___________          basis  of diversity jurisdiction.   The parties agree  that it is          governed by  the substantive law  of the state  of Massachusetts.          The plaintiff  is  the  former chief  executive  officer  of  the          defendant corporation, and his claims stem from an alleged breach          of his  employment agreement  with the defendant.   Specifically,          the  plaintiff  maintains  that  the  district  court  improperly          granted  the defendant's  summary judgment  motion because  there          were  genuine  issues  of material  fact  as  to  whether 1)  the          defendant breached its agreement  to create a long-term incentive          plan  and communicate its goals to the plaintiff; 2) the doctrine          of promissory estoppel required that the defendant create a long-          term  incentive plan; 3) the defendant fired the plaintiff in bad          faith,  in order  to deprive  him of  a benefit  to which  he was          entitled; and 4) the  defendant deceived the plaintiff concerning          its intention to establish  a long-term incentive plan.   For the          following  reasons,  we  affirm  the district  court's  grant  of                                   ______          summary judgment.                                    I.  BACKGROUND                                    I.  BACKGROUND                    Plaintiff  William G.  Coll ("Coll") sued  defendant PB          Diagnostic  Systems, Inc.  ("PB") in  the United  States District          Court  for the District of  Massachusetts.  Coll asserted various          claims  regarding PB's  alleged  promise to  develop a  long-term          incentive bonus  program in connection with  Coll's employment as          PB's Chief Executive Officer ("CEO").  After extensive discovery,          the court granted PB's motion for summary judgment.                                         -2-                    Although  the  parties  heatedly dispute  many  of  the          issues  on appeal, the facts  central to our  inquiry are largely          uncontroverted.1   The  defendant,  PB, was  founded  in 1985  to          develop  and  market  medical  diagnostic instruments.    PB  was          started  as a  joint venture  owned in  equal shares  by Polaroid          Corporation   ("Polaroid")   and    a   German   company   called          Behringwerke,  A.G.  ("Behring").   In  1987,  PB representatives          contacted the  plaintiff,  Coll, and  informed  him that  PB  was          looking for a CEO to run the start-up company.                    A.  Pre-hire statements                    A.  Pre-hire statements                        ___________________                    Coll agreed  to an  interview to discuss  the position,          and  met  with  PB  Board  Chairman  Peter  Kliem  ("Kliem")  and          Polaroid's Donald Fronzaglia  ("Fronzaglia") at the  Pillar House          restaurant.  Coll expressed concern that PB would  not be able to          offer him an equity share in the company because it was a "50/50"          joint venture.  Kliem confirmed that PB could not offer an equity          share in the company, but explained that PB intended  to create a          Long Term Incentive  Plan ("LTIP")  that would give  the CEO  the          opportunity to earn up to $1,000,000 provided that PB met certain          performance goals.  Kliem indicated that PB did not yet  have the          LTIP  in place, but that the company looked forward to developing          it  with the  new CEO.   In his  deposition, Coll  admits that he          understood this to  mean that any payout under  the LTIP would be                                        ____________________          1   Much of  the factual background recited  here comes from PB's          Statement of Material Facts Concerning Which There Is  No Genuine          Triable  Issue, the  remainder coming  from  our scrutiny  of the          exhibits and depositions.                                         -3-          contingent  upon the achievement of yet-to-be-defined performance          goals.  Coll also  testified that he understood  that PB had  not          yet extended him an employment offer.                    B.  The offer letters                    B.  The offer letters                        _________________                    After  meeting with  several other  PB representatives,          Coll  determined that  he  was interested  in  managing PB.    On          December 4,  1987, Kliem sent Coll a letter offering Coll the CEO          position at  PB (the  "First Offer  Letter").    The  First Offer          Letter set forth the salary and annual bonus to be paid Coll, and          further stated: "It is our intent, that in 1989, we would jointly          engage in  establishing  criteria to  appropriately reflect  your          direct contribution to the success of the venture in 1990."  Coll          called Fronzaglia and  expressed his concern that the First Offer          Letter did not adequately  address the LTIP or what  would happen          in the event that the venture failed.                    In response to Coll's concerns, Kliem sent Coll another          offer  letter,  dated  December   14,  1989  (the  "Second  Offer          Letter").  This letter stated:                         As we have  discussed, we are  pleased                      to  confirm our  offer  of employment  as                      General  Manager, PB  Diagnostic Systems,                      Inc.  (PBDS, Inc.) . . . .                         You will be an employee of  PBDS, Inc.                      at a starting  salary of $160,000.00  per                      year,   with   a   guaranteed  bonus   of                      $40,000.00  per year  for 1988  and 1989,                      payable   on   your   first  and   second                      anniversary of  employment.  You  must be                      an employee  of PBDS, Inc. on those dates                      to receive payment of these bonuses.                         During  1989,  we  intend  to  jointly                         ______________________________________                      explore with you  appropriate methods  of                      _________________________________________                                         -4-                      compensation to reflect your contribution                      _________________________________________                      to the success of the venture in 1990 and                      _________________________________________                      beyond.                      _______                         In the event PBDS, Inc. initiates your                      termination of employment  in the  period                      between   your    employment   date   and                      December 31st,  1989,   PBDS,  Inc.  will                      provide you one year's base salary.                         Further,   in   the   event  of   your                      separation,  for  any  reason,  you  will                      refrain   from    working   directly   or                      indirectly for a  competitor in the field                      of  medical diagnostics  for a  period of                      one  year.   This  provision,  of course,                      will not  apply if PBDS, Inc.  has chosen                      to cease this joint venture.                         For  purposes of  administration only,                      Polaroid    Corporation   will    provide                      benefits in areas  of medical and  dental                      insurance,   life   insurance  and   401K                      savings plans.                         We   are   enthusiastic   about   your                      contribution  and  leadership as  we look                      forward to the long-term success of PBDS,                      Inc.          (emphasis added).                    After  Coll  received  the  Second   Offer  Letter,  he          telephoned  Fronzaglia  and  accepted  the offer.    During  this          conversation, Fronzaglia said: "Does that take care of it?"  Coll          replied, "You  and I understand what it is, so I guess it's O.K."          Coll admitted in  his deposition  that at that  time he  believed          that  the  Second Offer  Letter  incorporated all  the  terms and          conditions of his employment, and that he believed that there was          no material difference between the First and Second Offer Letters          with regard to the LTIP.                    C.  Coll's tenure at PB                    C.  Coll's tenure at PB                        ___________________                                         -5-                    In  October 1988,  the PB Board  of Directors  formed a          Compensation Committee to develop  compensation packages for PB's          senior  executives.   In April  1989, the  Compensation Committee          developed  an executive compensation  proposal which  included an          Annual Bonus Plan and a  LTIP.  The proposal, which was  shown to          Coll prior to being presented to the Board of Directors, included          a  payout package  that gave  Coll the  opportunity to  earn over          $1,000,000 in incentive compensation.                    On  April 20,  1989, PB's  Board of  Directors met  and          unanimously  approved both  the Annual Bonus  Plan and  the LTIP.          Payout  under the  LTIP was  contingent upon  the achievement  of          certain long term goals, described in the LTIP as:                         Milestones  as  developed  by PBDS  in                      accordance  with  the  business plan  and                      subject   to   approval  of   the  Board.                      Evaluation of business  progress made  by                      the  Board prior  to  the  1992 and  1994                      payouts.          On  July 18,  1989,  in response  to  the Board's  request,  Coll          submitted a written memorandum  suggesting payout milestones  for          the LTIP:                         The  Board  of Directors  has approved                      conceptually a LTIP for PBDS senior staff                      (7 persons).  The Board has also approved                      specific  funding  for  this   Plan,  1/3                      payable in 1992 and 2/3 payable  in 1994.                      Per  your  request,  we  have  considered                      targets appropriate  to such a  long term                      plan and our recommendation follows.                         Since  the  Annual   Bonus  Plan   has                      targets  approved  each  year  which  are                      tactical  and  short-term  in nature,  we                      believe that the company's  interests can                      be best served  by emphasizing  strategic                      and  results-oriented  goals in  the Long                                         -6-                      Term Plan.                         For 1992 (year  end), criteria  should                      include                      -entrance into US market                      -entrance into European market                      -profitability                      -positive cash flow                      Criteria for 1994,                       -profitability at "x" level or better                      -internal  rate  of  return  at  "y%"  or                      better                      I look forward to discussing with you the                      utilization of these strategic goals.                    PB claims that in October 1989, its  Board of Directors          considered  and approved the goals proposed by Coll for the LTIP.          The   relevant  minutes   from   this   meeting  read:   "Various          compensation and incentive matters were discussed and approved."                    In  April  1990, Coll  presented his  revised five-year          business  plan for PB,  projecting "profitability"  and "positive          cash flow"  by the end  of 1992.  A  year later, it  became clear          that PB would not  meet the profitability and positive  cash flow          goals embodied in the  revised five-year plan.  To  the contrary,          PB  suffered tremendous losses in the years 1989, 1990, 1991, and          1992.    On  April  4,  1991,  Coll  wrote  to  the  Compensation          Committee, proposing to lower the original goals of the LTIP:                         This memo will address  several issues                      related   to  the   [LTIP]  and   to  the                      discussion    points   raised    at   the                      Compensation    Committee   meeting    on                      March 27, 1991. . . .                         1.  The  goals originally  established                             __________________________________                      for the  1992  payout of  the [LTIP]  are                      _________________________________________                      conceptually satisfactory.   The goal  of                      __________________________                      "entrance into the US market"  is already                      met and  the goal  of "entrance  into the                                         -7-                      European   market"   is  well   underway.                      Perhaps  the  more  critical  goals  are,                      however,  "profitability"  and  "positive                      cash flow."  I believe that we should use                      the   concepts   of   profitability   and                      positive  cash flow,  but that  we should                      look  at  these numbers  not  as absolute                      dollar  amounts   within  absolute  time-                      frames,  but  as  measures   of  progress                      against marketplace, product and business                      goals.   To  state that  "our goal  is to                      become  profitable  and to  have positive                      cash flow  by Q4,  1992" is an  excellent                      tool  to  motivate  managers   and  their                      organizations  and  we have  communicated                      profitability  and  cash  flow goals  and                      responsibilities to our employees. . . .                         Certainly, we will not use these tools                      indiscriminately    and    without    the                      concurrence  of the  Board.   Further, we                      agree  that  we  must  continuously  show                      positive  results  in  profitability  and                      cash flow.   As a result,  the management                      should be measured against its ability to                      deliver  positive  profitability  on  the                      incremental  shipments/revenue  that  are                      made in 1992.                                       . . . .                         Therefore, my  recommendations for the                      goals are                      -entrance into US market                      -entrance into European market                      -25% operating profit on incremental 1991                      to 1992 revenues                                       . . . .          (emphasis added).                    PB's  Board  of  Directors  was scheduled  to  meet  on          September 5, 1991.  Just prior to this meeting, Coll submitted  a          lengthy  memo in which he again proposed  to lower the targets of          the LTIP.  He informed the Board that the current  targets of the          LTIP were unattainable and that, therefore, the LTIP was unlikely                                         -8-          to create the desired  incentives.  He  urged the Board to  lower          the  targets of the  LTIP so that  there would be  a potential in          1992 for payout under the LTIP.  In pertinent part, the memo read          as follows:                         Background:      In  1989   the  Board                      approved  the  basic Long  Term Incentive                      (LTI) plan concepts, including  the split                      of   goals  to   effect  1992   and  1994                      payments.   At that time, the targets for                      1992 were suggested to be:                      -entrance into US market                      -entrance into European market                      -profitability                      -positive cash flow                                       . . . .                      Half of the goals cited above will not be                      met.   . . .   Profitability and positive                      cash flow are now  forecast for 1993, not                      1992.                      The     retentive    and     motivational                      capabilities  of  the  LTI are  therefore                      compromised  for  1992, and  the original                      reason the Compensation Committee had for                      designing  a  1992 payment  was  to "keep                      people interested."                         The dilemma  therefore is do we keep a                                                         ______                      plan  that in  its  current construct  is                      _________________________________________                      unlikely to fulfill its purpose?                      ________________________________                         Do we keep the  original plan or do we                      review other options?                                       . . . .          (emphasis added).                    At its September 5, 1991, meeting, the Board considered          Coll's proposal and  rejected it.   The minutes  of that  meeting          read as follows:                      A  management  proposal  to  replace  the                      Company's  Long-Term  Incentive Plan  was                                         -9-                      considered.    The existing  Plan appears                      unlikely     to     produce     incentive                      compensation payments under the Company's                      present   business    forecasts.      The                      management  proposed  replacing the  plan                      with  one  that  would provide  realistic                      incentives to the Company's management.                      .  .   .   Directors  pointed   out   the                      inadvisability of lowering the objectives                      of  an incentive  plan  to match  lowered                      performance expectations. . . .                        After further discussion,  the Board  did                      not accept  the  proposal to  modify  the                      current  plan.   The  Board  approved  in                      principle  the  adoption  of a  successor                      long-term incentive compensation plan for                      later years, with the prospect  of a one-                      third  payout in  1993  and a  two-thirds                      payout in 1995.                    D.  Coll's termination                    D.  Coll's termination                        __________________                    On  January  14,  1992,  Coll's employment  at  PB  was          terminated by unanimous decision  of the Board of Directors.   PB          wrote Coll, explaining that the sponsor companies -- Polaroid and          Behring  -- were  disappointed  with  PB's business  performance.          Nevertheless,  the letter  explained, because  Coll's termination          was due in part to corporate restructuring, PB would pay Coll one          year's salary as a lump sum severance payment, in accordance with          his employment contract.  Moreover, the letter continued, "in the          unlikely event of  a payout under the  long term bonus  plan, you          will be eligible  for participation  on a pro-rated  basis."   PB          never achieved the two  of the four goals originally  proposed by          Coll to be the 1992 targets of the LTIP.                               II.  STANDARD OF REVIEW                               II.  STANDARD OF REVIEW                    We review a district  court's grant of summary judgment                                         -10-          de  novo and  read the record  in a  light most  favorable to the          ________          non-moving  party,  drawing  all  inferences  in  the  non-moving          party's favor.   LeBlanc v. Great  Am. Ins. Co., 6  F.3d 836, 841                           _______    ___________________          (1st Cir. 1993), cert. denied,    ___ U.S. ___, 114  S. Ct. 1398,                           ____________          128 L.Ed.2d 72 (1994).  Summary judgment is appropriate when "the          pleadings,   depositions,   answers   to   interrogatories,   and          admissions on file,  together with the  affidavits, if any,  show          that there is no genuine  issue as to any material fact  and that          the moving party  is entitled to a judgment as  a matter of law."          Fed.  R. Civ.  P. 56(c).   A "material"  fact is  one "that might          affect  the  outcome  of  the  suit  under  the  governing  law."          Anderson v. Liberty Lobby,  Inc., 477 U.S.  242, 248, 106 S.  Ct.          ________    ____________________          2505, 2510, 91 L.Ed.2d  202 (1986).  A  dispute about a  material          fact is "genuine" if "the evidence is such that a reasonable jury          could  return   a  verdict  for   the  nonmoving  party."     Id.                                                                        ___          Essentially, Rule  56(c) mandates  the entry of  summary judgment          "against  a party  who  fails to  make  a showing  sufficient  to          establish the existence  of an element essential  to that party's          case, and  on which that party  will bear the burden  of proof at          trial."   Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.                    ____________     _______          2548, 2552, 91  L.Ed.2d 265 (1986).  The nonmoving party "may not          rest upon the mere allegations or denials of the . . . pleadings,          but . . . must set  forth specific facts showing that there is  a          genuine issue for trial."  Fed.  R. Civ. P. 56(e).  See Anderson,                                                              ___ ________          477 U.S. at 248, 106 S. Ct. at 2510.                    We  have  advocated  a  cautious  approach  to  summary                                         -11-          judgment  motions where  issues  of  motive  and intent  must  be          resolved.  Oliver v. Digital Equip. Corp., 846 F.2d 103, 109 (1st                     ______    ____________________          Cir.  1988).    Nevertheless,  "[e]ven  in  cases  where  elusive          concepts  such as motive or intent are at issue, summary judgment          may be  appropriate  if the  nonmoving  party rests  merely  upon          conclusory  allegations,  improbable inferences,  and unsupported          speculation."   Medina-Mu oz  v. R.J.  Reynolds Tobacco  Co., 896                          ____________     __________________________          F.2d 5, 8 (1st Cir. 1990).                                   III.  DISCUSSION                                   III.  DISCUSSION                    A.   The Contract Claim                    A.   The Contract Claim                         __________________                    The  crux of Coll's breach of contract claim is that PB          breached its  agreement to implement a  long-term incentive plan.          He further  alleges that  the parties'  agreement required PB  to          communicate to  Coll  the goals  on which  the incentive  bonuses          would be premised, and that PB failed to do so.                    To  recover damages  for breach  of contract  at trial,          Coll would have been required to demonstrate (1) that the parties          reached  a valid and binding  agreement with regard  to the LTIP;          (2) that PB  breached the terms of this aspect  of his employment          contract; and  (3) that he suffered damages  from the breach.  To          survive PB's  summary judgment motion,  Coll was required  to put          forth competent evidence on each of these issues.                    The  district  court  offered  alternate   holdings  in          support  of its  summary judgment  ruling against  Coll.   As one          basis, the  district court held that  Coll's employment agreement          did not obligate PB  to create and implement a  LTIP but, rather,                                         -12-          was only a non-binding  "agreement to agree."  As  an alternative          basis,  the district  court found  that, even  assuming that  the          parties reached  a binding agreement  regarding the LTIP,  PB had          not  breached  it.   The  court  held  that  the contract  merely          obligated PB to  "jointly explore  . . .  appropriate methods  of          compensation to  reflect [Coll's] contribution to  the success of          the venture in 1990 and  beyond," and that PB had  fulfilled this          obligation.                    The   pertinent   law   is  well   settled.      "Under          Massachusetts law,  interpretation of a contract  is ordinarily a          question  of law  for the  court."   Fairfield 274-278  Clarendon                                               ____________________________          Trust v. Dwek, 970 F.2d 990, 993 (1st Cir. 1992) (quoting Edmonds          _____    ____                                             _______          v.  United  States, 642  F.2d 877,  881  (1st Cir.  1981) (citing              ______________          Freedlander  v. G. &  K. Realty Corp.,   357 Mass.  512, 516, 258          ___________     _____________________          N.E.2d  786, 788 (1970))).  "Only if the contract is ambiguous is          there  an issue  of  fact for  the jury."    Id. (citing  cases).                                                       ___          "Moreover, where  the  contract  is  unambiguous,  it  is  to  be          enforced according  to its terms."   Id. (citing cases).   In the                                               ___          absence  of fraud or mistake, an agreement is presumed to express          the intent of the parties.  Id. (citing Hess Oil & Chemical Corp.                                      ___         _________________________          v.   Ristuccia, 3 Mass.  App. Ct. 772,  772, 331 N.E.2d  823, 823               _________          (1975)).                    "Evidence  of prior or  contemporaneous oral agreements          cannot be admitted to  vary or modify the terms of an unambiguous                                 ____    ______          written contract."   Fairfield 274-278 Clarendon  Trust, 970 F.2d                               __________________________________          at  993   (citing  New  England  Financial   Resources,  Inc.  v.                             __________________________________________                                         -13-          Coulouras,  30 Mass.  App. Ct.  140, 145,  566 N.E.2d  1136, 1139          _________          (1991) (parol  evidence rule  precludes use  of oral  evidence to          modify integrated agreement)).  Moreover, "parol evidence may not          be  used to 'create ambiguity where none otherwise exists.'"  Rey                                                                        ___          v. Lafferty, 990 F.2d  1379, 1385 (1st Cir.) (quoting  Boston Car             ________                                            __________          Co. v. Acura Auto. Div., American Honda Motor Co., Inc., 971 F.2d          ___    ________________________________________________          811, 815  (1st Cir. 1992), cert.  denied, 114 S.  Ct. 94 (1993)).                                     _____________          Instead,   "parties  are  bound  by  the  plain  terms  of  their          contract,"   Hiller v. Submarine Signal Co., 325 Mass.  546, 550,                       ______    ____________________          91 N.E.2d  667, 669  (1950), and their  subjective contemplations          are immaterial where  the agreement is unambiguous.   Blakeley v.                                                                ________          Pilgrim Packing Co., 4 Mass. App. Ct. 19, 24, 340 N.E.2d 511, 514          ___________________          (1976).                    Language  within  a  contract  "is  usually  considered          ambiguous where  an agreement's  terms are inconsistent  on their          face   or   where   the  phraseology   can   support   reasonable          difference[s]  of opinion as to the meaning of the words employed          and  obligations undertaken."   Rey,  990 F.2d  at 1384.   "Where                                          ___          possible, words should be given their natural meaning, consistent          with the  tenor of contractual terms."   Fashion House, Inc. v. K                                                   ___________________    _          Mart Corp., 892 F.2d 1076, 1084 (1st Cir. 1989).          __________                    Of course,  the parol evidence rule  only applies where          the  parties have  created a  partially or  completely integrated          document.    Restatement  (Second)  of  Contracts     213.2    An                                        ____________________          2     "(1)  A  binding  integrated   agreement  discharges  prior          agreements  to the extent that it is inconsistent with them.  (2)          A   binding  completely  integrated  agreement  discharges  prior                                         -14-          integrated  agreement  is  a  writing that  constitutes  a  final          expression  of one or more terms of an agreement.  See id.   209.                                                             ___ ___          "Where the parties reduce an agreement to a writing which in view          of its completeness  and specificity reasonably  appears to be  a          complete  agreement, it is  taken to  be an  integrated agreement          unless it is established  by other evidence that the  writing did          not  constitute  a final  expression."   Id.;  see also  Ryder v.                                                   ___   ________  _____          Williams, 29 Mass. App.Ct. 146, 150, 558 N.E.2d 1134,1136 (1990).          ________                    With regard to long-term incentive compensation, Coll's          employment  contract  contains the  following language:   "During          1989, we intend  to jointly explore with  you appropriate methods          of compensation  to reflect your  contribution to the  success of          the  venture in  1990  and beyond."    Coll maintains  that  this          language embodies  a previously reached agreement  on the subject          and  thus obligated  PB to  develop a  LTIP, establish  clear and          reasonable goals for  the plan,  and communicate  those goals  to          Coll.  He relies on his contractual negotiations as evidence that          PB  intended to  obligate  itself to  create  a LTIP  that  would          provide  Coll with the opportunity to earn at least $1,000,000 in          incentive  compensation.    To   prevail  on  this  theory,  Coll          initially must show either (1) that his employment  contract with          PB  was not  an integrated  agreement with  respect  to incentive          compensation, or (2) that  the contractual language is consistent          with his assertions.  We think he has done neither.                                        ____________________          agreements to  the  extent  that  they  are  within  its  scope."          Restatement (Second) of Contracts   213.                                         -15-                    All the relevant evidence indicates that the employment          contract was an  integrated and final expression  of the parties'          agreement with  respect to  compensation matters.   The agreement          lists  Coll's  base  salary,  his  annual  bonus,  his  severance          compensation,  and a  non-competition agreement.   In  short, the          face of  the document contains  nothing that would  indicate that          the  parties  did  not  intend it  to  be  a  complete and  final          expression  of  their rights  and  obligations.   Moreover,  Coll          admitted in  his deposition that he thought  at the time that the          contract embodied all  the material terms  and conditions of  his          employment.   Given  these  considerations, we  find that  Coll's          employment agreement  was an  integrated document subject  to the          tenets  of the parol evidence rule, and  as such must be enforced          according  to its terms unless  the terms are  ambiguous on their          face.                    Coll asserts that the  relevant contractual language is          ambiguous  and  should be  submitted  to  the  jury to  determine          whether it obligated  PB to  develop a LTIP  and communicate  its          goals to Coll.  We disagree.  The clear language  of the contract          states only  that PB  "intend[s] to  jointly explore  with [Coll]          appropriate  methods of  compensation."   Any  ambiguity in  this          language  centers around whether it  obligates PB to do anything.                                                                  ________          Assuming it  creates a binding obligation,3  the language clearly                                        ____________________          3  As we stated  above, the district court held that  the parties          had merely created a non-binding agreement  to agree with respect          to long-term compensation.   For the purposes of this  appeal, we          assume  arguendo  that the  language  is  binding,  and base  our          analysis  on whether  PB  breached  its contractual  obligations.                                         -16-          does not support Coll's assertions.  To turn the words "we intend          to jointly  explore appropriate  methods of compensation"  into a          binding obligation  to develop, fund,  and implement a  LTIP that          would provide up to $1,000,000 of incentive compensation would be          completely at odds  with the  common and natural  meaning of  the          words.  Rather,  we assume  that the parties  intended what  they          wrote: that PB intended to make a good faith effort to explore an          appropriate  compensation package  for Coll,  including incentive          bonuses.                    The   evidence   presented    for   summary    judgment          demonstrates clearly that PB fulfilled this obligation.  Not only          did  it explore new incentive packages, it developed and funded a          LTIP plan for Coll  and his senior executives.  And although Coll          disputes the point, the evidence shows that Coll himself proposed          the  plan's goals, which PB failed to meet under his stewardship.          Under these circumstances,  there was no  breach of contract  and          summary judgment on that claim was certainly appropriate.                    B.  The promissory estoppel claim                    B.  The promissory estoppel claim                        _____________________________                    As an  alternative to  his contract claim,  Coll argues          that  he  is  entitled to  damages  on  the  basis of  promissory          estoppel.    Specifically,  Coll  alleges  that  during  contract          negotiations PB promised to  develop a LTIP in order  to persuade          Coll to  accept  the CEO  position  at PB.    The district  court                                        ____________________          Because we conclude that there was no breach, we need not address          whether  the employment  contract was  in fact  binding regarding          long-term compensation or  whether it was, as the  district court          found, merely a non-binding agreement to agree.                                         -17-          rejected  Coll's promissory  estoppel  claim,  holding that  Coll          could  not have  reasonably  relied on  the pre-hire  discussions          regarding the LTIP.  We agree.                    "An element  of promissory  estoppel is that  the party          invoking it must have reasonably relied on the alleged promise to                                __________          his  detriment."4   Hall v.  Horizon House Microwave,  506 N.E.2d                              ____     _______________________          178,  184 (Mass. App. Ct. 1987)(emphasis added).  Where a written          statement conflicts with a prior oral representation, reliance on          the  oral representation  is generally  held to  be unreasonable.          See Trifiro v.  New York Life Insurance  Co., 845 F.2d  30, 33-34          ___ _______     ____________________________          (1st Cir.  1988)("The  conflicting content  of [the  defendant's]          oral statement with  [his] written  statement . .  . should  have          placed  [the  plaintiff] on  notice that  he  should not  rely on          either statement.").  As this Court has noted,                      [c]onfronted    by   such    conflict   a                      reasonable  person  investigates  matters                      further;   he   receives  assurances   or                      clarification   before    relying.      A                      reasonable  person  does not  gamble with                      the   law  of  the  excluded  middle,  he                      suspends judgment  until further evidence                      is obtained.  Explicit conflict engenders                      doubt,  and to  rely  on a  statement the                      veracity  of which  one  should doubt  is                      unreasonable.   The  law does  not supply                      epistemological insurance.   Nor does  it                                        ____________________          4    "The  theory of  promissory  estoppel,  as  embodied in  the          Restatement [(First)] of Contracts    90 (1932), permits recovery          if  (1) a  promisor makes  a promise  which he  should reasonably          expect  to  induce  action  or  forbearance  of  a  definite  and          substantial  character  on  the part  of  the  promisee,  (2) the          promise does induce such action or forbearance, and (3) injustice          can be avoided  only by  enforcement of the  promise."   Loranger                                                                   ________          Construction Corp. v. E.F.  Hauserman Co., 6 Mass. App.  Ct. 152,          __________________    ___________________          154,  374 N.E.2d 306, 308,  aff'd, 376 Mass.  757, 384 N.E.2d 176                                      _____          (Mass. 1978) (citations omitted).                                         -18-                      countenance reliance on one  of a pair of                      contradictories    simply   because    it                      facilitates  the   achievement  of  one's                      goal.          Id.          ___                    In a case similar to the one at bar, an employee sought          entitlement  to  stock  options  allegedly  promised  him  during          compensation-package negotiations with  his employer.  Hall,  506                                                                 ____          N.E.2d at 184.   In rejecting the promissory estoppel  claim, the          court   held  that   "[g]iven   the  extended   and  persistently          inconclusive nature of his  negotiations . . . about  an over-all          employment and  compensation package,  [the plaintiff] could  not          have had  more than a  well founded  hope that  the stock  option          aspect of  the  deal  would  work  out  satisfactorily  for  him.          Inchoate negotiations are  no better basis for  reliance than for          an action  on the purported contract as  such."  Id. (citing Tull                                                           ___         ____          v. Mister DonutDev. Corp., 389 N.E.2d 447 (Mass. App. Ct. 1979)).             ______________________                    Assuming arguendo that PB in fact promised Coll that it          would  create  a LTIP  worth  $1,000,000,  Coll  could  not  have          reasonably  relied on it.  Coll's employment offer was clearly at          odds with  his understanding  of PB's prior  oral representations          regarding  long-term compensation.    Upon receipt  of the  First          Offer  Letter, Coll  called PB  and raised  his concern  that the          language in  the offer did  not seem to  obligate PB to  create a          LTIP  that could  pay him  up to  $1,000,000.5   When  the Second                                        ____________________          5   The First Offer Letter stated,  in pertinent part: "It is our          intent, that  in 1989, we  would jointly  engage in  establishing          criteria to appropriately reflect your direct contribution to the          success of the venture in 1990."                                         -19-          Offer Letter essentially rephrased the same noncommittal language          contained in  its predecessor, Coll  should have been  aware that          there was a potential disagreement over the LTIP.   Nevertheless,          Coll  acquiesced  to the  language  in the  Second  Offer Letter,          purportedly because he did not  want PB to think that he  did not          trust them.   He cannot now second-guess his negotiating strategy          and claim  the benefit of a bargain he did  not negotiate.  As we          discussed  above, the language in the Second Offer Letter clearly          did  not obligate  PB  to  do  anything  more  than  explore  the          feasibility of a LTIP.  Moreover, Coll admitted that, despite the          concerns he had raised, he recognized that the terms of the offer          letters   were   essentially   identical    regarding   long-term          compensation.  In short,  PB's refusal to "firm up"  the language          regarding long-term compensation rendered  any reliance on  prior          oral representations  unreasonable.   Accordingly, we  affirm the          district  court's  grant of  summary  judgment for  PB  on Coll's          promissory estoppel claim.6                    C.  The bad-faith-termination claim                    C.  The bad-faith-termination claim                        _______________________________                    Lastly,  we turn to Coll's  claim that PB  fired him in          bad faith in  order to deprive him of  a benefit to which  he was          entitled.                    Under Massachusetts  law, the implied covenant  of good          faith and fair dealing prohibits an employer  from terminating an                                        ____________________          6   Coll's claim for  deceit also fails  because, like promissory          estoppel,  it requires that  the plaintiff demonstrate reasonable          reliance.    See Trifiro,  845 F.2d  at  33-34.   Accordingly, we                       ___ _______          affirm the district court's summary judgment ruling on this issue          as well.                                         -20-          employee  in order  to deprive him  of a  benefit to  which he is          entitled.   Fortune v. National  Cash Register, Inc.,  364 N.E.2d                      _______    _____________________________          1251, 1257  (Mass. 1977).   Essentially, "[a]n  employer may  not          discharge an employee in order to . . . reap for itself financial          benefits  due [the] employee."   Maddaloni  v. Western  Mass. Bus                                           _________     __________________          Lines, Inc., 438 N.E.2d 351, 356 (Mass. 1982)(citing Fortune, 364          ___________                                          _______          N.E.2d  1251).  An employer's  obligation of good  faith and fair          dealing imposes  liability for  the loss of  compensation clearly          related  to an  employee's  past service  when  that employee  is          discharged  without good cause.   Gram v. Liberty  Mut. Ins. Co.,                                            ____    ______________________          429 N.E.2d 21, 27-29 (Mass. 1981).  As we noted in Biggins,                                                              _______                      [T]he   Gram   court   was   careful   to                              ____                      distinguish between recovery based on the                      employee's  loss of future wages for past                      services,  and  any  claim  for  recovery                      based on loss of future income for future                      services.     The  Massachusetts  Supreme                      Judicial  Court  explicitly limited  this                      theory   of   "wrongful   discharge"   to                      situations   in   which  the   employee's                      discharge without good cause deprives the                      employee  of  compensation  for  services                      previously earned or past services.          Biggins  v. Hazen Paper Co., 953 F.2d  1405, 1416 (1st Cir. 1992)          _______     _______________          (discussing Gram, 429 N.E.2d  at 27-29).  Fortune liability  does                      ____                          _______          not  encompass situations  where  the employee  merely was  fired          arbitrarily.   Id.   Rather,  in order  to establish  a claim  of                         ___          wrongful  termination, the  plaintiff  must demonstrate  that his          discharge was "contrived to despoil [him] of earned commission or          similar compensation due for past services."  Id.                                                        ___                    In  the  present  case,  we  do  not  find that  Coll's          termination deprived him  of any particular  benefit to which  he                                         -21-          was  entitled.    Coll  contends  that  because  his  termination          occurred  just as  he was  "pressing [PB's  Board] to  define the          goals of  the LTIP," there is  a genuine issue as  to whether the          Board terminated him  to avoid paying him nearly $1,000,000 under          the LTIP.   Brief for Appellant  at 44.  The  undisputed facts do          not support this contention.   Coll's own writings indicate  that          two of  the four  goals of the  LTIP would  not be met,  and that          there was  thus no potential for  payout in 1992 under  the LTIP:          "Half of the  goals . . . will not be met  . . . .  Profitability          and positive cash flow are now forecast for 1993, not  1992.  The          retentive and motivational capabilities  of the LTI are therefore          compromised for 1992 . . . ."  The Board's minutes echo this:  "A          management  proposal to replace the Company's Long-Term Incentive          Plan was  considered.   The  existing  Plan appears  unlikely  to          produce  incentive  compensation  payments  under  the  Company's          present  business forecasts."    Accordingly, we  agree with  the          district court  that  Coll's termination  did  not strip  him  of          compensation due for  past services, and affirm  the dismissal of          Coll's wrongful termination claim.                    We have considered the other  issues raised by Coll and          find them equally meritless.                    Affirmed.                    ________                                         -22-
