
USCA1 Opinion

	




          May 16, 1996      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1818                              WILLIAM J. HODGKINS, JR.,                                Plaintiff - Appellant,                                          v.                            NEW ENGLAND TELEPHONE COMPANY,                                Defendant - Appellee.                                 ____________________                                     ERRATA SHEET               The  opinion of this court issued  on May 7, 1996 is amended          as follows:               Page  6, line 13 should read "absence of evidence to support          the non-moving party's position."              ___                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1818                              WILLIAM J. HODGKINS, JR.,                                Plaintiff - Appellant,                                          v.                            NEW ENGLAND TELEPHONE COMPANY,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                _____________________               Joel C. Martin, with whom Thomas C. Bradley and  Petruccelli               ______________            _________________      ___________          & Martin were on brief for appellant.          ________               Pamela A. Smith for appellee.               _______________                                 ____________________                                     May 7, 1996                                 ____________________                    TORRUELLA, Chief Judge.  Plaintiff-appellant William J.                    TORRUELLA, Chief Judge.                               ___________          Hodgkins  ("Hodgkins")  sued  his  former   employer,  defendant-          appellee  New  England Telephone  and Telegraph  Company ("NET"),          because  he believes that NET paid him an insufficient amount for          a  cost-saving  idea  he  submitted in  its  employee  suggestion          program.   The  district court  granted NET's motion  for summary          judgment on  Hodgkins' claims, which include  breach of contract,          quantum  meruit,  equitable  estoppel,  unjust   enrichment,  and          negligent  misrepresentation.    Hodgkins  appeals  the  district          court's decision.  We reverse in part, affirm in part, and remand          for further proceedings.                                      BACKGROUND                                      BACKGROUND                                      __________                    Because  the district court granted summary judgment in          favor  of the defendant,  we recite the  facts in  the light most          favorable to  the plaintiff's claims,  giving him the  benefit of          all reasonably supported inferences.                    NET has an employee  suggestion program named "Ideas at          Work" ("the  IAW program"), that encourages  and rewards employee          ideas  that  produce  savings   or  increased  profits  for  NET.          According  to  NET's "Suggester's  Guide,"  reviewed by  Hodgkins          before he submitted his idea, the IAW program "rewards the people          who come up with ideas the company uses by paying the originators          fifteen percent of the savings or earnings from the first year of          implementation--up  to a  limit  of $50,000."    The IAW  program          provides for "Initial Awards"  of 15 percent (minimum of  $75 and          maximum  of $5,000) of the  estimated net savings  or profits for                                         -2-          one  year  on  so-called  "tangible ideas,"  and  "Special  Merit          Awards" of up to 15% of the actual savings or profits produced by          the  idea in its  first year of implementation.   According to an          IAW  program handbook that NET  supplied to its employees, "[a]ll          tangible  ideas which were awarded  an initial award  will be re-          evaluated one year from  the date of implementation to  determine          the actual savings or profits."                    William Hodgkins, Jr. was employed by NET in Maine from          1956 until February 1992.   Hodgkins produced an idea  that would          reduce  the  cost  of  changing  telephone  service  for  certain          multisubscribers  such  as dormitories  and  nursing  homes.   On          April 20,  1989, Hodgkins submitted his idea  to the IAW program.          Hodgkins conducted his own study, and based on his own managerial          expertise, concluded that the idea would save NET money, and that          therefore NET would implement the idea, evaluate it under the IAW          program,  and  grant  him fifteen  percent  of  the first  year's          savings.   Based  on his  own knowledge  of NET's  operations and          costs, Hodgkins expected that he  would receive the maximum under          the IAW program, $50,000.                    Hodgkins  submitted  his idea  to  the  IAW program  by          signing  a submission  form in  which he  agreed to abide  by the          rules of the program as laid out  on the reverse side of the form          and in a NET document called General Administrative Procedure No.          53 ("GAP 53").   Both the back of the submission  form and GAP 53          specified that NET had the                      sole, exclusive,  and complete discretion                      and right to determine the terms, policy,                                         -3-                      structure,  operation  and administration                      of the Program, including the right:  . .                      . .                       e)   To   determine   the    method   for                      calculating the amount of any award.                          f)  To determine the  amount of any award                      granted.                      g)  To determine  the person  entitled to                      receive any award.                      h) To  determine the  extent, if any,  of                      the  application, implementation,  or use                      of an idea.          The  same documents also provided  that "[t]he   decisions of the          Company  concerning  the terms,  policy, structure,  operation or          administration of the  Program are within the  sole and exclusive          discretion   of  the   Company  and   are  final,   binding,  and          conclusive."                    In August  1990, NET's initial evaluation reported that          Hodgkins' suggestion was "an  excellent idea to move the  company          forward in its goal of automated  provisioning."  As a result, he          received the maximum  Initial Award of $5,000 in  September 1990.          In January 1991, NET announced in its weekly in-house publication          that Hodgkins' idea had been adopted  and that it "earned for its          suggester  a  Tangible  Award  of 15  percent  of  its  estimated          savings."   NET implemented Hodgkins' idea in July 1991, and thus          no determination of  the first-year savings  for a Special  Merit          Award could be made until after July 1992.                                Expecting to  receive the  maximum award for  his idea,          Hodgkins retired from NET in February 1992, earlier than he would          have retired had he  not expected the award.   In September 1992,                                         -4-          NET manager Philip DuBois informed Hodgkins by telephone that NET          had  awarded him  $17,500 for  his idea.1   Hodgkins  told DuBois          that  the amount of the award was too  low.  DuBois then sent the          evaluation  form  back   to  the  IAW  program  manager  for  re-          evaluation.                    In August 1993, NET informed Hodgkins that he would not          receive a Special Merit Award.   According to NET's re-evaluation          report,  NET could  not quantify  savings associated  exclusively          with Hodgkins'  idea because  other innovations had  produced the          same results as Hodgkins' idea.  Hodgkins appealed this decision,          and a  second re-evaluation was  performed, which arrived  at the          same  conclusion.   NET's evaluation  reports indicated  that the          task of  measuring savings  had been  rendered impossible by  the          destruction of cost records, given the passage of time.                    As  a result,  NET has  not awarded Hodgkins  any money          beyond  the  $5,000  Initial Award.    Because  Hodgkins did  not          receive the  total amount  he expected, his  financial plans  for          retirement have  been disturbed, causing him  to draw prematurely          on certain investments and incur early withdrawal penalties.   On          theories  of   breach  of   contract,   quantum  meruit,   unjust          enrichment, equitable estoppel  and negligent  misrepresentation,          Hodgkins brought suit in  district court seeking damages incurred          in reliance on statements made by NET, as well as the  additional          $45,000  of award money he expected, plus money for income taxes,                                        ____________________          1  NET contests this assertion.                                         -5-          which NET had agreed to pay on any IAW program award amount.  The          district court granted summary judgment on all counts.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                    We review a district  court's grant of summary judgment          de novo,  viewing the facts  in the light  most favorable  to the          __ ____          nonmovant,  Hodgkins.  Dominique v. Weld, 73 F.3d 1156, 1158 (1st                                 _________    ____          Cir. 1996); Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.                      _____    ________________          1995).   Summary  judgment is  appropriate when,  based upon  the          pleadings,  affidavits,  and depositions,  "there  is  no genuine          issue as to  any material fact, and  [where] the moving party  is          entitled to judgment as a matter of law."  Fed. R. Civ. P. 56(c);          Hope Furnace Assocs., Inc.  v. F.D.I.C., 71 F.3d 39, 42 (1st Cir.          __________________________     ________          1995);  Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 671 (1st                  _______    _______________________          Cir. 1995).  To  succeed, the "moving party must  show that there          is  an  absence of  evidence  to support  the  non-moving party's          position."  Hope Furnace  Assocs., 71 F.3d at 42  (quoting Rogers                      _____________________                          ______          v. Fair,  902 F.2d 140, 143 (1st Cir.  1990)).  "An issue is only             ____          'genuine' if there is sufficient evidence to permit a  reasonable          jury to  resolve the point in the  nonmoving party's favor."  Id.                                                                        ___          at  42-43 (quoting NASCO, Inc.  v. Public Storage,  Inc., 29 F.3d                             ___________     _____________________          28, 32 (1st Cir. 1994)).                                       DISCUSSION                                      DISCUSSION                                      __________                    On appeal, Hodgkins  argues that the evidence  sufficed          to raise genuine issues of material fact as to whether he and NET          formed  an enforceable  contract,  and whether  NET breached  it.                                         -6-          Alternatively,  in  the  absence   of  an  enforceable  contract,          Hodgkins  claims that he  is entitled to  a trial on  a theory of          unjust  enrichment or  quantum  meruit.   Hodgkins also  advances          claims  under  theories  of  equitable  estoppel  and  promissory          estoppel.   Finally, Hodgkins  claims that the  evidence requires          that a factfinder  decide whether NET  negligently misrepresented          to Hodgkins that he was entitled to additional compensation.                                I.  Breach of Contract                                I.  Breach of Contract                    The district court decided  that the IAW program formed          part  of Hodgkins' contract of employment with NET.  The district          court  also  found that  the provision  of  the IAW  program that          states  that "[a]ll  ideas  which result  in  Initial Awards  for          tangible ideas  shall receive  consideration for a  Special Merit          Award" was  "clearly enforceable."   However, the  district court          found crucial  the IAW program's  express condition that  NET had          "the  sole,  exclusive,  and  complete discretion  and  right  to          determine   the   terms,   policy,   structure,   operation   and          administration of  the Program."   The district court  pointed to          the IAW program Submission Form, which along with allocating such          discretion  to NET, provides that NET has the right "to determine          the  method for  evaluating  ideas which  are submitted"  and "to          determine the method for  calculating the amount of any  award to          be   granted."    As  a  result,  the  district  court  found  an          enforceable contract -- one which it found NET did not breach.                    On  appeal, Hodgkins  argues  that the  IAW program  is          severable from his employment contract, and that by accepting his                                         -7-          submission and implementing his idea, NET was bound to pay him if          it was successful.   Hodgkins also contends that while  there was          no explicit reasonableness requirement in Hodgkins' contract with          NET, other terms in  the contract substitute for it.   Under this          reading of the contract, Hodgkins asserts that a genuine issue of          material fact  persisted with respect to whether NET breached the          contract.                    Hodgkins argues that, in  the event that NET's reserved          discretion  was  so  broad  as to  encompass  its  actions,  such          discretion must have  been too  broad for the  district court  to          find an enforceable agreement.   The district court's key finding          was  that NET  and  Hodgkins formed  an  agreement that  remained          enforceable despite the clause granting NET "sole, exclusive, and          complete discretion"  over the IAW program's operation, including          authority "to  determine the method for calculating the amount of          any award to  be granted."  According to the  district court, the          latitude  this provision  afforded NET  was sufficiently  wide to          encompass NET's conduct in evaluating Hodgkins' idea.  Therefore,          the district court concluded, there was no breach.                    Hodgkins  contends that  the district  court's analysis          must  be erroneous.  According to  Hodgkins, the district court's          reading of the clause  granting NET discretion is so  generous to          NET that it must lead to the conclusion that Hodgkins received no          consideration or enforceable promise in return for submitting his          idea, since NET had the unbridled discretion to vary the contract          at will.  See, e.g., Whitten v. Greeley-Shaw, 520 A.2d 1307, 1309                    ___  ____  _______    ____________                                         -8-          (Me.    1987)   (noting    that   "[e]very    contract   requires          'consideration' to  support it"); Corthell v.  Summit Thread Co.,                                            ________     _________________          167 A. 79, 81 (Me.  1933) (stating that "a reservation to  either          party of an unlimited right to determine the nature and extent of          his performance  renders his obligation too  indefinite for legal          enforcement, making it, as it is termed, merely illusory").                    In  considering   this  argument,  we  agree  with  the          district  court  and the  parties that  Maine  law applies.   See                                                                        ___          Moores  v. Greenberg,  834 F.2d  1105, 1107  n.2 (1st  Cir. 1987)          ______     _________          (stating  that "[w]here  the parties  agree what  substantive law          controls in a diversity case, we can  -- and ordinarily should --          accept such a concession.").  Under Maine law,                      the    paramount    principle   in    the                      construction  of  contracts  is  to  give                      effect to the intention of the parties as                      gathered   from   the  language   of  the                      agreement viewed in the  light of all the                      circumstances  under  which  it was  made                      . . . . Such  intention must be  gathered                      from the written instrument, construed in                      respect to the subject matter, the motive                      and  purpose of making the agreement, and                      the object to be accomplished.          Baybutt  Constr. Corp.  v. Commercial Union  Ins., Co.,  455 A.2d          ______________________     ___________________________          914,  919  (Me. 1983),  cited  in Top  of  the  Track Assocs.  v.                                  _________ ___________________________          Lewiston Raceways, Inc., 654 A.2d 1293, 1295-96 (Me. 1995).          _______________________                    The   district   court's   reading   of   the   written          instrument's literal terms is not disputed.  The IAW program form          submitted   by   Hodgkins   clearly  reserves   calculation   and          determination of  awards to  NET's discretion, and  Hodgkins does          not argue  that he was  not aware  of these provisions.   In  the                                         -9-          absence of any evidence proffered by Hodgkins that NET engaged in          bad faith acts such as intentionally destroying records, we agree          with the  district court's finding that  NET's conduct, including          its  repeated evaluations  of Hodgkins'  ideas, falls  within the          ambit of its "sole, exclusive, and complete  discretion" over the          IAW program's operation.                    However,   a   question  lingers   regarding  Hodgkins'          argument that the  discretion reserved by NET was  so "unlimited"          as to  void the agreement.   See Corthell,  167 A. at  81 (noting                                       ___ ________          that a party's reservation of an unlimited right to determine the                                           _________          nature and extent  of its performance renders  its obligation too          indefinite  for legal enforcement).   In Corthell, 167  A. at 81,                                                   ________          the Maine Law  Court confronted facts bearing some resemblance to          those of the instant case.  In that  case, the plaintiff Corthell          executed  an agreement  with  his employer  whereby  he would  be          compensated   for  "all   future  inventions"   with  "reasonable          recognition,"  "the basis and amount [of which] to rest with" the          employer  "at  all  times."   Id.    Despite  the reservation  of                                        ___          discretion to the  employer, the  Maine Law Court  held that  the          employer's promise  was not  illusory and  that the  contract was          valid.    Id. at  82.    Stating that  the  contract  "was to  be                    ___          interpreted in good faith on the basis  of what is reasonable and          intended,  and not  technically," and  also emphasizing  that the          contract contained specific  language instructing that it  should          be  construed in that manner, the court found that the employer's          promise was not  illusory based on the provision  for "reasonable                                         -10-          recognition" and the parties' exhibition of a contractual intent.          Id. (finding  a valid  enforceable agreement and  also concluding          ___          that the employer breached it).                    Citing  Corthell, Hodgkins argues  that because the IAW                            ________          program  agreement did  not  include any  mention of  "reasonable          recognition," as the agreement  in Corthell did, the IAW  program                                             ________          agreement  reserved excessive  discretion  for NET  and was  thus          void.   We do not agree.   See Brooking v.  Maine Employment Sec.                                     ___ ________     _____________________          Comm'n,  449 A.2d  1116,  1118 (Me.  1982)  (noting that  it  was          ______          "highly unlikely"  that an  employment agreement would  have been          unenforceable for vagueness even though compensation for services          was not stated,  and failing  to note any  provision requiring  a          reasonable  amount) (citing Corthell, 167  A. at 81).   We cannot                                      ________          therefore accept Hodgkins' semantic  emphasis based on  Corthell.                                                                  ________          See Towne v. Larson, 51 A.2d 51, 53 (Me. 1947) (noting that while          ___ _____    ______          "it  is true  that a  contract must  be sufficiently  definite to          enable  the  court to  determine its  meaning  and fix  the legal          liability  of the  parties . .  . [t]he court  looks to substance          rather than to  form, and is reluctant to construe  a contract so          as to render  it unenforceable  if that result  can be  avoided")          (discussing Corthell).                      ________                    As  a result, we must  look beyond the  mere wording of          the agreement.  In this regard, Top of the Track directs that, to                                          ________________          ascertain  what was reasonable and intended, we look at the facts          surrounding an agreement's making.  Top of the Track, 654 A.2d at                                              ________________          1295-96.  Viewing the  facts in the best light  for Hodgkins, the                                         -11-          general  purpose  of the  IAW  program  agreement appears  fairly          straightforward.   An employee  suggestion plan  such as  the IAW          program  is intended  to  reward ideas  and  promote more  active          employee participation in  the productive process.   See Fish  v.                                                               ___ ____          Ford Motor  Co., 534 N.E.2d 911, 913 (Ohio Ct. App. 1987).  These          _______________          programs give employees incentives in the form of rewards to work          harder  and generate  possible improvements.   Id.   At  the same                                                         ___          time, the  clauses in  the employment contract  and the  proposal          plan document must be upheld  to protect the company's interests.          Id.   Among  those interests  is the  ability of the  employer to          ___          quickly  resolve  instances  where  the  suggestion involved  may          provide benefits that are difficult or impossible to quantify.                    We find that the district court properly concluded that          no  genuine issue of  material fact existed to  cast doubt on the          proposition  that,  under  Maine   law,  NET's  promise  was  not          illusory.  Given the context of employee relations and incentives          surrounding  the  IAW program,  NET's  promise  was not  rendered          unenforceable  by  a  grant   of  unfettered  discretion.    Even          assuming, arguendo,  that Hodgkins correctly argues  that the IAW                    ________          program  constitutes an  agreement severable from  his employment          relationship with NET, we  cannot accept Hodgkins' assertion that          he provided NET with  a suggestion in exchange for  NET's promise          that  it would give him  an award if  it wished to,  at its total          discretion.    Given  its  policies of  generally  informing  its          employees  when one  of them  received an  award, the  context in          which NET  made its promise  did not  allow it to  refuse to  pay                                         -12-          awards  arbitrarily at  its discretion.   If  NET refused  to pay          awards,  then the  IAW program  in the  future would  not provide          incentives  to  employees   to  suggest  improvements.     Future          improvements depended,  and still  depend, on current  payment of          awards.2    In  sum,  the lack  of  an  explicit "reasonableness"          provision  alone  does  not   render  the  IAW  program  contract          unenforceable, and  this factual background further justifies the          district  court's  conclusion,  especially   in  the  absence  of          proffered contravening evidence by Hodgkins.                      Like the district court before us, we believe that  the          Maine Law Court would conclude that the IAW program constituted a          valid agreement between NET and Hodgkins. Before  determining the          precise  contractual  duty  that  NET  faced,  however,  we  must          consider  the alleged tender by DuBois of a $17,500 special award          to Hodgkins.   This is  certainly a disputed  issue of fact;  the          question  is whether it represents a material dispute.  Taken, in          Hodgkins' favor, as true, this statement could not create any new          obligation on the  part of  the company: the  submitted idea  was          "past  consideration"  and thus  insufficient  to  support a  new                                        ____________________          2  Perhaps  NET could have quietly  refused to pay  higher awards          and  publicize smaller  but still  significant awards.   However,          Hodgkins  has  presented   no  evidence  of  such  a  NET  policy          sufficient  for  his  summary  judgment burden.    While  summary          judgment is only appropriate  when "there is no genuine  issue as          to any material  fact and []  the moving party  is entitled to  a          judgment as a  matter of law," Fed. R. Civ. P.  56(c); Coll v. PB                                                                 ____    __          Diagnostic  Sys., Inc., 50 F.3d  1115, 1121 (1st  Cir. 1995), 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); Coll, 50 F.3d at 1121.                           ____                                         -13-          contract  or a modification.   See Greater Boston  Cable Corp. v.                                         ___ ___________________________          White Mountain  Cable Constr. Co.,  604 N.E.2d 1315,  1317 (Mass.          _________________________________          1992)  (stating that  "[p]ast  consideration does  not support  a          contract");  Hayes v. Plantations Steel  Co., 438 A.2d 1091, 1093                       _____    ______________________          (R.I. 1982) (concluding that because "[v]alid consideration . . .          must  be bargained  for  . . .  [t]o  be  valid,  therefore,  the          purported  consideration must  not have  been delivered  before a          promise  is executed,  that is,  given  without reference  to the          promise");  4 Richard A. Lord,  Williston on Contracts    8:9, at                                          ______________________          193-202 (4th ed. 1992).                    However,   we  conclude  that   whether  the  agreement          contained  an implicit  obligation  of reasonable  efforts,  good          faith, accurate  evaluation of  the idea's  worth, or other  such          treatment, the alleged offer  of $17,500 represents evidence from          which  a  jury could  infer  that  NET did  not  live  up to  its          obligations when it  later claimed  that Hodgkins'  idea did  not          merit more than the  Initial Award.  Having allegedly  tendered a          $17,500 Special Award, NET cannot avoid factfinding as to whether          its  subsequent  refusal to  pay any  amount  as a  special award                                           ___________          breached its  duty regarding the Hodgkins idea.   As a result, on          the breach  of  contract  claim,  we must  reverse  the  district          court's  grant  of  summary  judgment,  and  remand  for  further          proceedings in  accord with  this opinion.   We leave  it to  the          district court, in the  first instance, to determine the  precise          contractual  duty  which arose  under Maine  law pursuant  to the          parties' agreement.                                         -14-                      II.  Unjust Enrichment and Quantum Meruit                      II.  Unjust Enrichment and Quantum Meruit                    Hodgkins also seeks damages under unjust enrichment and          quantum meruit  theories.  Under Maine  law, "[u]njust enrichment          describes recovery  for the  value of  the benefit retained  when          there is no contractual relationship, but when, on the grounds of          fairness  and justice, the law compels performance of a legal and          moral duty to pay,"  while "quantum meruit involves  recovery for          services  or  materials  provided  under  an  implied  contract."          Aladdin Elec. Assoc. v. Town of Old Orchard Beach, 645 A.2d 1142,          ____________________    _________________________          1145 (Me. 1994); see A.F.A.B., Inc. v. Town of Old Orchard Beach,                           ___ ______________    _________________________          639 A.2d 103, 105 n.3 (Me. 1994).                    We  have  already  discussed  and  upheld  the district          court's  finding  of an  enforceable  agreement  between NET  and          Hodgkins.  Without evidence of fraud, or other circumstances that          render  the contract  inoperative,  Hodgkins  is foreclosed  from          seeking additional payment outside  the contract terms.   See Top                                                                    ___ ___          of  the Track,  654 A.2d  at 1296  (contract between  the parties          _____________          forecloses unjust  enrichment  claim); Prest  v.  Inhabitants  of                                                 _____      _______________          Farmington,  104  A.  521,  524 (1918)  (valid  express  contract          __________          forecloses a  quantum meruit action).   Because Hodgkins  has put          forth no such  evidence, we  agree with the  district court  that          Hodgkins' unjust enrichment and quantum meruit claims must fail.                   III.  Equitable Estoppel and Promissory Estoppel                   III.  Equitable Estoppel and Promissory Estoppel                    Hodgkins also seeks damages under theories of equitable          estoppel  and promissory  estoppel.   Under Maine  law, equitable          estoppel "bars the assertion of the truth by one whose misleading                                         -15-          conduct has induced another  to act to his detriment  in reliance          on what is untrue."  See Anderson v. Commissioner of the Dep't of                               ___ ________    ____________________________          Human  Servs., 489 A.2d 1094,  1099 (Me. 1985)  (adding that "[a]          _____________          misunderstanding   will  not  support  application  of  equitable          estoppel").  According to Maine law on  promissory estoppel, "[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."  Martin  v. Scott Paper Co.,  511 A.2d 1048,  1050 (Me.                     ______     _______________          1986).                    Hodgkins  contends  that, taken  as  a  whole, the  IAW          program  encouraged the  submission  of ideas  and made  specific          representations  to  employees,  including  Hodgkins,  about  the          evaluation process and the compensation to be paid for ideas that          produced financial  results.  Hodgkins argues  that under Maine's          doctrine of equitable estoppel, NET's course of conduct precludes          NET  from asserting  rights of  contract against  Hodgkins, since          Hodgkins  in good  faith relied  upon NET's  conduct and  was led          thereby  to  change  his position  for  the  worse.   See,  e.g.,                                                                ___   ____          Waterville Homes, Inc. v.  Maine Dep't of Transp., 589  A.2d 455,          ______________________     ______________________          457 (Me. 1991).   Citing  Martin, 511  A.2d at  1050 (Me.  1986),                                    ______          Hodgkins also argues that promissory estoppel similarly applies.                     The  district court  found  this argument  unconvincing          because  it   concluded  that  since  the   various  IAW  program          publications made it clear  that NET retained complete discretion                                         -16-          as  to the evaluation methods and conclusions, it would have been          unreasonable  for Hodgkins  to  conclude  that such  publications          promised him  an award.   Furthermore, the  district court  found          that  Hodgkins  could not  have  reasonably  relied  on  the  NET          employee  newsletter of January  3, 1991,  listing him  as having          submitted  a winning  idea, since:   (1)  Hodgkins knew  that the          announcement was made before  his idea was even  implemented, let          alone evaluated after  one year; (2) the newsletter  reference to          "15 percent of the estimated savings" is a clear reference  to an          "Initial Award for a tangible idea," not a "Special Merit Award";          and (3)  the announcement's reference  to a "Tangible  Award" for          Hodgkins clearly  meant an Initial  Award, since the  IAW program          rules  and  publications  use  the term  "tangible"  to  describe          "Initial  Awards  for tangible  ideas,"  but  not "Special  Merit          Awards."                    On appeal,  Hodgkins attempts to sidestep  the district          court's  analysis in two ways.   First, he asserts that a factual          question  existed  as  to  whether Hodgkins'  reliance  on  NET's          promise  was  reasonable,  since   he  had  used  his  experience          projecting  costs for NET to estimate the likely savings that NET          would  realize  from implementing  his  idea.   Second,  Hodgkins          contends that "taken as a whole," rather  than looking at the IAW          program publications  and the NET newsletter  in isolation, NET's          conduct justifies both estoppel theories.                    We   find  the  district  court's  analysis  convincing          nonetheless.   With respect to his first assertion, regardless of                                         -17-          his  assessment  of  likely  savings  from  his  idea,  under  an          equitable  estoppel  theory  Hodgkins  was required  to  show  he          reasonably relied  or that NET  made statements  which it  should          reasonably  have  expected  to  induce Hodgkins'  actions.    The          argument that  a  factual question  existed as  to his  estimates          simply  does  not respond  to the  crux  of the  district court's          analysis:  that his reliance was not reasonable.  With respect to          Hodgkins'  emphasis on the IAW program "taken as a whole" forming          an  issue of  triable fact,  that allegation  by itself  does not          convert the issue into a question of fact for the  jury.  Because          Hodgkins has failed in his brief to  point to evidence other than          that considered by the district court in assessing  NET's conduct          under equitable  estoppel, we  cannot  determine what  additional          facts  Hodgkins  may  be referring  to  by  his  invocation of  a          holistic approach.  As a result of this failure to point to other          competent  evidence  to  surmount a  supported  summary  judgment          motion,  see Thomas v. Metropolitan  Life Ins. Co.,  40 F.3d 505,                   ___ ______    ___________________________          510  (1st Cir. 1994) (noting that "[t]o avoid summary judgment, a          nonmoving party must be able to point to some specific, competent          evidence in support of  its claim"); Cloutier v. Town  of Epping,                                               ________    _______________          714  F.2d 1184, 1192 (1st Cir.  1983) ("surmount[ing] a supported          motion for summary judgment"  requires that plaintiffs "set forth          specific  facts showing a  triable issue"), we  conclude that the          IAW  program  publications and  the  NET  newsletter compose  the          competent evidence  regarding the relevant course  of conduct for          both estoppel  theories.   We  agree  with the  district  court's                                         -18-          discussion of this  evidence, and find  that, under an  equitable          estoppel  theory, Hodgkins  could not  have reasonably  relied on          statements or conduct  as evidenced  in these sources.   For  the          same reasons, under  a promissory estoppel theory, NET should not          reasonably  have   expected  to  induce   Hodgkins'  actions   in          reliance.3                                        ____________________          3  Hodgkins' promissory  estoppel argument was not a count in his          complaint.   Because  it  fails  for  the  same  reasons  as  his          equitable  estoppel claim, we do not address the issue of whether          the  district  court  erred  in concluding  that  the  promissory          estoppel argument was waived.  See Hodgkins v. New England Tel. &                                         ___ ________    __________________          Tel. Co., slip op. at 8 n.2 (D. Me. 1994).          ________                                         -19-                           IV.  Negligent Misrepresentation                           IV.  Negligent Misrepresentation                    Maine  has adopted  the Restatement  (Second) of  Torts          definition of the tort of negligent misrepresentation, which runs          as follows:                      One who,  in the course  of his business,                      profession or employment, or in any other                      transaction in  which he has  a pecuniary                      interest, supplies  false information for                      the  guidance of others in their business                      transactions, is subject to liability for                      pecuniary  loss caused  to them  by their                      justifiable     reliance     upon     the                      information,  if  he  fails  to  exercise                      reasonable   care    or   competence   in                      obtaining     or     communicating    the                      information.          Restatement (Second) of Torts    552(1) (1977), cited  in Chapman          _____________________________                   _________ _______          v. Rideout, 568 A.2d 829, 830 (Me. 1990).             _______                    Hodgkins argued below  that the newsletter announcement          and IAW program publications  contained false statements on which          he justifiably relied in  deciding when to retire.   The district          court  was unconvinced  by  this argument.    We agree  with  the          district    court's    finding    that     Hodgkins'    negligent          misrepresentation claim  must  fail for  the same  reason as  his          estoppel arguments,  namely, that specific statements  in the IAW          program  publications  and the  NET  newsletter, as  well  as the          context  in  which they  were  read,  clearly rendered  Hodgkins'          alleged  reliance unreasonable.  We note in passing that the only          false statement Hodgkins has pointed to, the alleged statement by          DuBois,  taken as true, would still have been made after Hodgkins          had  already retired,  and  thus Hodgkins  cannot  claim to  have          relied upon it,  nor does Hodgkins so  claim.  Hodgkins  does not                                         -20-          point  to  evidence contradicting  NET's  statements  in the  IAW          program  publications  and  the   NET  newsletter  that  rendered          justifiable any reliance on those materials in his retirement and          related  decisions.    Because  Hodgkins  must  show  justifiable          reliance in order to sustain a negligent misrepresentation claim,          he consequently cannot establish that a genuine issue of material          fact remains  that would compel us  to grant him a  trial under a          Maine law theory of negligent misrepresentation.                                      CONCLUSION                                      CONCLUSION                    For the foregoing reasons, the judgment of the district          court is reversed  in part,  affirmed in part,  and remanded  for                   reversed  in part   affirmed in part   and remanded  for                   _________________   ________________       ________          further proceedings.          further proceedings                                                      -21-
