                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0864

                                   Mark Sharockman,
                                      Appellant,

                                            vs.

                              LifeSpan of Minnesota, Inc.,
                                     Respondent.

                                 Filed January 25, 2016
                                        Affirmed
                                     Johnson, Judge

                             Hennepin County District Court
                                File No. 27-CV-14-1267

Thomas J. Conley, Law Office of Thomas J. Conley, LLC, Minneapolis, Minnesota (for
appellant)

Terrance W. Moore, Carol R.M. Moss, Hellmuth & Johnson, PLLC, Edina, Minnesota (for
respondent)

         Considered and decided by Cleary, Chief Judge; Connolly, Judge; and Johnson,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         Mark Sharockman was employed by LifeSpan of Minnesota, Inc., pursuant to a

three-year contract. He left the company after two years, at which time he began a job with

another employer at a higher rate of compensation. He commenced this action to recover
damages for the compensation that he did not receive from LifeSpan during the third year

of the contract period. The district court granted LifeSpan’s motion for summary judgment

on that claim. On appeal, Sharockman contends that he is entitled to compensation for the

third year because LifeSpan terminated him without cause, regardless of his earnings in his

subsequent employment. LifeSpan contends that Sharockman is not entitled to any

damages because he resigned without a good reason and, in addition, because any loss of

income is offset by the greater income he earned from his subsequent employer during the

third year of the contract period. We affirm.

                                         FACTS

       LifeSpan is a provider of children’s mental-health services. Sharockman was chief

financial officer and executive vice president of the company in 2010 and 2011. His

employment with LifeSpan is governed by a written employment agreement, dated

January 1, 2010. Paragraph 1 of the agreement provides that Sharockman would be

employed for a three-year term. Paragraph 5(c) of the agreement provides that Sharockman

would be paid through the last day of his employment if he were to resign without good

reason or if LifeSpan terminated him for cause. Paragraph 5(d) provides that Sharockman

would be paid through the end of the three-year contract term if he were to resign because

LifeSpan committed a breach of contract and failed to cure its breach within 30 days after

receiving notice or if LifeSpan terminated him without cause. The full text of paragraph

5(d) is as follows:

                     Without Cause or for Good Reason. If Company
              terminates Employee’s employment other than (i) for Cause or
              (ii) as a result of Employee’s Death or Disability, or if


                                            2
             Employee terminates his employment following a breach of
             this Agreement by Company which is not cured within 30 days
             after receipt of notice from Employee (“Good Reason”),
             Employee shall be paid the following: (i) Employee’s monthly
             Base Salary through the end of the current contract term;
             (ii) Employee’s target bonus then in effect, multiplied by the
             number of years remaining in the current contract term for
             which no bonus has been paid (rounded up to the nearest whole
             year); (iii) Employee’s accrued but unpaid time off pay
             (including, but not limited to, vacation) for the year in which
             such termination occurs, pro rated to the date of such
             termination; (iv) any unpaid expense reimbursement; and
             (v) Employee’s other accrued benefits, if any, under any of
             Company’s other employee benefit plans (e.g., bonus, profit
             sharing plan, 401(k) plan), subject to the terms and conditions
             of those plans.

      Paragraph 3(a) of the agreement provides that, in 2010, Sharockman would be paid

a base salary of $175,000. Paragraph 3(a) also provides that Sharockman’s base salary

would increase each year by not less than the average percentage increase in base salary

awarded to the other two senior executives. In December 2010, LifeSpan’s board of

directors increased the base salary of the chief executive officer, Traci Hackmann, by 5%

and the base salary of the chief operating officer, Rhonda Suedbeck, by 25%, which was

an average increase of 15%. But the board increased Sharockman’s base salary by only

5%. In June 2011, Hackmann drafted an amendment to Sharockman’s employment

agreement that would have provided that Sharockman “voluntarily agreed not to adjust his”

base salary for 2011 by a greater amount, but Sharockman declined to sign it.

      On December 12, 2011, Sharockman sent an e-mail message to Hackmann and

Suedbeck requesting that the company pay him additional compensation on his next

paycheck to ensure that his base salary in 2011 was the amount required by his employment



                                            3
agreement.    On December 15, 2011, Sharockman had a meeting with Hackmann.

Hackmann testified in deposition that Sharockman resigned during that meeting by

“ma[king] it clear to me that he was going to be done being employed by LifeSpan” within

30 days. Sharockman testified in deposition that he did not resign at that meeting but

merely told Hackmann that he was in the process of interviewing for another job. Shortly

before that meeting, Sharockman had received word that he was the final candidate for a

position with another employer. Sharockman actually received a job offer from that

employer on December 16, 2011.

       In the days following the December 15 meeting, Sharockman negotiated the terms

of his subsequent employment. Meanwhile, LifeSpan made various preparations for

Sharockman’s departure. For example, LifeSpan made plans to remove Sharockman from

the company’s bank accounts and credits cards and prepared alternative budgets that

reflected the elimination of the position of the chief financial officer.

       On December 27, 2011, LifeSpan’s human resources department sent a company-

wide e-mail message with an attached memorandum, which had been drafted by Suedbeck,

announcing Sharockman’s departure from the company. The memorandum stated:

              This memo is to inform you that Mark Sharockman has chosen
              to resign from his position as Chief Financial Officer. His last
              day of work will be Friday, December 30th. We thank Mark
              for his hard work and dedication during his two years at
              LifeSpan, and we wish him well in the future.

Later that day, Sharockman sent an e-mail message to Hackmann and Suedbeck in which

he stated that he had not previously resigned but nonetheless was providing notice of his




                                               4
resignation in that e-mail message. The full text of Sharockman’s e-mail message is as

follows:

                    Today, a company memorandum was sent out stating
             that I have resigned from LifeSpan and my last day will be
             December 30, 2011. I have not tendered my resignation. If I
             had resigned, it would have been in writing, as required by
             paragraph 4.d. of my employment agreement. Unless the
             company memorandum is meant to communicate the
             involuntary termination of my employment by LifeSpan, it is
             wholly inaccurate.

                     On multiple occasions, beginning with the board
             meeting on December 9, 2010, I notified the company of its
             breach of paragraph 3.a. of my employment agreement. As a
             result, LifeSpan has failed to pay me the salary due pursuant to
             my employment agreement for all of 2011. Pursuant to
             paragraph 5.d., I am therefore entitled to terminate my
             employment agreement for Good Reason. I am now electing
             to do so, effective January 16, 2011.

Hackmann responded by e-mail the following day, saying that Sharockman had made clear

on December 15 that he had another job offer and was resigning.

      Sharockman’s last date of employment with LifeSpan was December 30, 2011. On

January 18, 2012, he began working for the employer that had made him a job offer on

December 16, 2011. It is undisputed that his compensation with the new employer was

greater in 2012 than what he could have earned at LifeSpan pursuant to his written

employment agreement.

      In February 2014, Sharockman commenced this action against LifeSpan.

Sharockman asserted a breach-of-contract claim and a statutory claim for nonpayment of

wages. In July 2014, LifeSpan moved for summary judgment. In November 2014, the

district court granted LifeSpan’s motion in part and denied it in part. With respect to the


                                            5
sole claim that is relevant on appeal, Sharockman’s claim for compensation in the third

year of the contract term, the district court granted LifeSpan’s motion for summary

judgment.1 The court administrator entered final judgment in May 2015. Sharockman

appeals.

                                      DECISION

       Sharockman argues that the district court erred by granting LifeSpan’s motion for

summary judgment with respect to his claim that LifeSpan breached the employment

agreement by not paying him compensation during the third year of the contract term.

       A district court must grant a motion for summary judgment “if 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 either party is

entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. A genuine issue of

material fact exists if a rational trier of fact, considering the record as a whole, could find

for the nonmoving party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn.

2008). This court applies a de novo standard of review to the district court’s legal




       1
         The district court also granted LifeSpan’s motion for summary judgment with
respect to Sharockman’s claim for damages based on a separate agreement that would have
rewarded him for an increase in the fair market value of the company. The district court
denied LifeSpan’s motion for summary judgment with respect to Sharockman’s claim for
additional compensation in 2011 and with respect to his statutory claim and determined,
sua sponte, that LifeSpan is liable on that claim in an amount to be determined at trial. The
district court conducted a court trial in January 2015 and found LifeSpan liable for damages
in the amount of approximately $12,000. The district court found that LifeSpan is not
liable on Sharockman’s statutory claim.

                                              6
conclusions on summary judgment and views the evidence in the light most favorable to

the nonmoving party. RAM Mut. Ins. Co. v. Rohde, 820 N.W.2d 1, 6 (Minn. 2012).

       Sharockman contends that there are genuine issues of material fact as to, first,

whether he resigned or was involuntarily terminated and, second, whether his earnings in

subsequent employment may offset the compensation that he did not receive from LifeSpan

during the third year of the contract period. We begin by considering Sharockman’s first

contention.

       Under paragraph 5(d) of the employment agreement, Sharockman would be entitled

to compensation for the third year of the contract term, despite having left the company, in

only two circumstances: (1) if LifeSpan terminated his employment without cause or (2) if

he resigned because of a breach of contract by LifeSpan and LifeSpan failed to cure its

breach within 30 days of notice of the breach. The district court reasoned that Sharockman

could not prove either of these two circumstances. On appeal, Sharockman concedes that

the second circumstance is not triggered. The key question is whether Sharockman has

evidence capable of proving the existence of the first circumstance, that LifeSpan

terminated his employment without cause.

       Sharockman’s theory is plainly contrary to LifeSpan’s evidence. The memorandum

distributed by LifeSpan’s human resources department on December 27 states that

Sharockman had resigned his employment. Both Hackmann and Suedbeck testified in

deposition that LifeSpan did not terminate Sharockman’s employment.            There is no

evidence in the record that LifeSpan ever expressly communicated to Sharockman that the




                                             7
company was terminating his employment. Likewise, there is no evidence in the record

that LifeSpan intended to terminate Sharockman’s employment.

       Sharockman nonetheless contends that LifeSpan terminated his employment.

Sharockman asserts that he did not resign his employment before the December 27, 2011

memorandum. That assertion is based on his deposition testimony that he did not inform

Hackmann during their December 15 meeting that he was resigning. The district court

reasoned that Sharockman’s evidence concerning the December 15 meeting creates a

genuine issue of material fact as to whether Sharockman informed Hackman at that time

that he was resigning his employment. But the factual dispute as to whether Sharockman

resigned on December 15 does not necessarily mean that there is a dispute as to whether

LifeSpan involuntarily terminated Sharockman’s employment on December 27. The

district court reasoned that the December 27 memorandum “cannot reasonably read to be

a termination notice” and, thus, “[t]here is no material issue of fact that LifeSpan did not

terminate Sharockman.”

       Sharockman challenges the district court’s reasoning by contending that, as a matter

of logic, he either resigned on December 15 or was terminated, and because he did not

resign on December 15, he therefore was terminated. Sharockman’s contention is based

on the fallacy of the false dichotomy: that only two jointly exhaustive alternatives exist,

and no other alternative is possible. See Patrick J. Hurley, A Concise Introduction to Logic

146-47 (4th ed. 1991). The two alternatives in the first premise of Sharockman’s argument

are not jointly exhaustive. For example, it is possible that Sharockman did not resign but

that the company thought he had resigned. Sharockman cannot foreclose this possibility


                                             8
because he testified in his deposition that he believed the memorandum was “inaccurate”

when he received it. As the plaintiff, Sharockman bears the burden of persuasion on the

elements of his claim, which, given his chosen theory, requires him to prove that LifeSpan

terminated his employment. See Carpenter v. Nelson, 257 Minn. 424, 427, 101 N.W.2d

918, 921 (1960) (“In the ordinary civil action, . . . the plaintiff has the burden of proving

every essential element of his case . . . by a fair preponderance of the evidence.”) In the

circumstances of this case, Sharockman cannot prevail merely by pointing to the absence

of evidence that he had resigned.

       On the question whether LifeSpan terminated his employment, Sharockman

contends that “it is reasonable to read LifeSpan’s December 27 email as a termination

notice” by inferring that “Hackmann invented the story of his resignation on December 15

as a pretext for her decision to fire him in retaliation for his demand for a contractually-

mandated salary increase.”      Sharockman’s brief cites no evidence to support this

interpretation of the December 27 memorandum. Our review of the record indicates that

Sharockman did not introduce any evidence to support his contention. Specifically,

Sharockman has no evidence that Hackmann made a decision to terminate Sharockman

and no evidence that Hackmann possessed a retaliatory motive based on Sharockman’s

December 12 e-mail message requesting an increase to his 2011 base salary. Sharockman

did not provide either an affidavit or deposition testimony with such evidence, and his

attorney did not elicit any such evidence in the depositions of Hackmann and Suedbeck.

Sharockman has no evidence that contradicts the plain language of the December 27




                                             9
memorandum, which expresses LifeSpan’s understanding of the reason for Sharockman’s

departure from the company.

      Furthermore, Sharockman’s contention that LifeSpan terminated his employment is

inconsistent with the e-mail message that he wrote to Hackmann in response to the

company’s December 27 memorandum. He stated in that e-mail message that he was

resigning his employment on the ground that LifeSpan had breached the employment

agreement by paying him too low of a base salary in 2011. Although Sharockman raised

the possibility in the e-mail message that the memorandum was incorrect in saying that he

had resigned, he ultimately rejected that interpretation by communicating his decision to

resign his employment at that time. Sharockman could not have resigned his employment

in that e-mail message if he previously had been involuntarily terminated.

      Thus, we conclude that Sharockman does not have evidence that creates a genuine

issue of material fact as to whether LifeSpan terminated his employment when it issued the

December 27 memorandum. In the absence of such evidence, Sharockman cannot prove

his claim that LifeSpan breached the employment agreement by not paying him

compensation during the third year of the contract term. Sharockman’s claim is based on

nothing more than speculation. However, “[a] party cannot rely upon speculation to

demonstrate the existence of a genuine fact issue,” and “a party opposing summary

judgment must do more than show that there is a metaphysical doubt as to material facts.”

Johnson v. Van Blaricom, 480 N.W.2d 138, 140-41 (Minn. App. 1992) (citing Fownes v.

Hubbard Broadcasting, Inc., 302 Minn. 471, 474, 225 N.W.2d 534, 536 (1975); Carlisle

v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989)). For that reason,


                                           10
LifeSpan is entitled to judgment as a matter of law. See Minn. R. Civ. P. 56.03; Frieler,

751 N.W.2d at 564.

      Because our resolution of Sharockman’s first argument is a sufficient basis for

affirming the district court’s judgment, we need not consider Sharockman’s second

argument.

      Affirmed.




                                           11
