whether those expectations were unreasonable. Id.
In his affidavit, Plaintiff states that no one ever told him that he or she had lost confidence in Plaintiff's abilities to act as general counsel and no one ever criticized his performance, ability, or the way he carried out his various tasks. (Paul Stinneford's Affidavit at P 10.)
However, at the same time, Plaintiff admits that he received performance reviews in 1980 and 1983 which noted that Plaintiff "comes on authoritatively and tends to present the negatives more vigorously than the positives" and that Plaintiff "exhibits an intractable lack of flexibility when challenged on his legal position." (Defendant's Local Rule 12(m) Statement at PP 11, 13.)
Additionally, Plaintiff does not contest Defendant's Senior Vice President, Mr. Bochenski's testimony that he instructed Plaintiff to focus on the legal work and not to challenge the merits of Defendant's business decisions. Id. at P 38. Plaintiff also admits that Mr. Shea, Defendant's Chairman, told Plaintiff he was being insubordinate and directed Plaintiff to sit down when Plaintiff acted in a disruptive and confrontational manner at a Management Committee meeting. Id. at P 56.
From these uncontested facts, this Court concludes that Plaintiff was aware that Defendant expected Plaintiff to act in a non-confrontational and non-disruptive manner when presenting his opinion and that Defendant expected Plaintiff to confine his opinion and advice to the legal issues. This Court holds that such expectations are not unreasonable.
Defendant details a number of instances which illustrate its position that Plaintiff was not meeting Defendant's legitimate expectations. A brief review of such instances follows.
In 1986, John Casey, Defendant's Treasurer, called upon Plaintiff to perform the necessary legal work for a loan transaction, but when Mr. Casey found that Plaintiff was not providing adequate legal support, he requested that outside counsel be retained. Id. at PP 29-33. In his affidavit, Plaintiff states that the Defendant often retained outside counsel for such matters as acquisitions, stock offerings, and major debt refinancing. (Paul Stinneford's Affidavit at P 14.) However, Plaintiff does not contest Mr. Casey's statement that Plaintiff was not providing adequate legal support necessary for the 1986 loan even though Mr. Casey had called upon him to do so.
At a Management Committee meeting in late 1986, Mr. Dahlstrand, Defendant's Vice President of Personnel and the Chairman of the Smoking Policy Committee, presented a proposed smoking policy which would ban smoking throughout Spiegel corporate headquarters. Id. at P 44. Plaintiff, who was a member of the Smoking Policy Committee was upset by the policy recommended by Mr. Dahlstrand and consequently lost his temper at the Management Committee meeting yelling at the other members of the committee and pounding the table. Id. at PP 54-55. Angered by Plaintiff's conduct, Mr. Shea told Plaintiff that he was being insubordinate and directed him to sit down and be quiet. Id. at P 56.
In early 1987, Kenneth Bochenski requested that Plaintiff be removed from a transaction involving Defendant's purchase of the Cara Corporation, a small privately held computer software services consulting company. Id. at PP 34-41. Mr. Bochenski testifies in his affidavit that instead of performing the necessary legal work associated with the purchase, the Plaintiff persisted in advising Mr. Bochenski that the Defendant should not proceed with the acquisition. (Kenneth Bochenski's Affidavit at P 13.) In his Affidavit, the Plaintiff does not deny the testimony of Mr. Bochenski, he merely states that outside's counsel's participation in the Cara transaction was minimal including only the closing and some technicalities involving the closing. (Stinneford's Affidavit at 15.)
The final instance illustrating Defendant's dissatisfaction with Plaintiff's performance involved Spiegel's 1988 acquisition of Honeybee, a publicly traded company. At a negotiation session where the representatives from Honeybee and Spiegel intended to reach an agreement in principle, Plaintiff interrupted various Honeybee representatives and interjected irrelevant issues in an abrasive manner despite cautionary instructions from Mr. Shea. (Defendant's Local Rule 12(m) Statement at P 75-76.) One of the Honeybee representatives criticized Plaintiff as a "deal breaker not a deal maker," and eventually, called the negotiations to a halt. Id. at PP 77-79. While the negotiations between Honeybee and Spiegel stood at a standstill, another bidder entered and drove up the price. Id. at P 81. As a result of his conduct, Mr. Shea removed Plaintiff from the Honeybee negotiations. Id. at P 82. Once again, Plaintiff does not deny his conduct at these negotiations.
Plaintiff presents minimal evidence to suggest that he was in fact meeting Defendant's legitimate expectations. Plaintiff points to the fact that he remained employed and continued to receive salary increases during the years when Defendant claims there was an increasing lack of confidence in Plaintiff's ability to perform his duties. Unfortunately, the fact that Plaintiff remained employed despite Defendant's increasing dissatisfaction does not suggest that Plaintiff was meeting the legitimate expectations of his employer, but rather, suggests that mounting disappointment with Plaintiff's performance eventually lead to his termination. Moreover, Plaintiff presents no evidence to suggest that his raises were merit based as opposed to a cost of living allowance.
Finally, Plaintiff mentions a performance evaluation dated January 1, 1983 which Plaintiff claims demonstrates Defendant's approval of plaintiff's operating procedure. The performance evaluation states in part,
Spiegel has relatively few problems considering the legal environment. Credit must go principally to Paul because of his knowledge and operating procedure that emphasizes prevention. This is a very specialized field with few really qualified experts. Paul is among the best of this group.
(Plaintiff's Denial of Defendant's Claim of Undisputed Material Facts at P 13.) First, this Court notes that the performance evaluation of January 1983 also states,
On occasion Paul exhibits an intractable lack of flexibility when challenged on his professional position. Happily he is much improved because sometimes the situation involved our parent legal counterparts. Paul is a valuable person to have around.