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Aulick v. Skybridge Americas, Inc.

United States Court of Appeals, Eighth Circuit

June 19, 2017

James Aulick Plaintiff- Appellant
v.
Skybridge Americas, Inc. Defendant-Appellee

          Submitted: March 8, 2017

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         James Aulick asserts that his former employer, Skybridge Americas, Inc., denied him a promotion and ultimately terminated his employment because of his age, in violation of state and federal law. Aulick also contends that Skybridge both fraudulently and negligently misrepresented to him that he would receive the promotion. The district court, [1] however, granted Skybridge's motion for summary judgment and dismissed these claims. We now affirm.

         I.

         In reviewing the district court's grant of summary judgment, dismissing Aulick's claims, we view the facts in the light most favorable to Aulick. See Oehmke v. Medtronic, Inc., 844 F.3d 748, 750 (8th Cir. 2016). Skybridge is a retail order fulfillment business. It consists of two divisions: (1) a warehouse and distribution business that fulfills orders, and (2) a call center business. Skybridge bought these two divisions from their previous owner, Argenbright, in 2011. The call center division employs about 700 people and accounts for more than 75% of Skybridge's business, while the fulfillment division employs less than 50 people and accounts for less than 25% of the Skybridge's business.

         James Aulick is an experienced and credentialed information technology ("IT") professional. In addition to his sciences degree he has an MBA and multiple professional credentials. At points in his career he has managed IT staffs with over 70 employees for retail corporations. When Skybridge bought the fulfillment and call center businesses, Aulick, then 61 years old, was serving as senior director of IT for the fulfillment business. After the purchase, Skybridge hired Aulick as senior IT director of fulfillment with an at-will employment contract. He had no experience with the call center business.

         Over the next two years, Skybridge's CEO and sole shareholder Mark Morris hired six new people to serve in executive roles. Three were age 57 or older, one was 60, one 47, and another 35. Kevin Cattoor, 57, was one of these hires, becoming CEO of Skybridge in November 2011.

         In September 2012, Cattoor submitted a memorandum summarizing his views on the fulfillment division's performance and areas of needed improvement. Cattoor wrote that "IT management is not optimum." He further stated that Aulick "is not capable of leading IT projects"; Aulick "has not effectively established IT priorities, work plans, communicated the plan to those who will be involved with the project . . . and updated everyone on the status of projects." Cattoor mentioned "numerous discussions" with Aulick centered on improving communication and leadership skills. Cattoor also noted a longstanding lack of confidence "in the IT department's ability to get things done effectively." Cattoor thus concluded his assessment of Aulick: "We need to continue to work with Jim to overcome his shortcomings. At the same time we should be exploring other alternatives for management of IT."

         Around the same time, Aulick had grown increasingly frustrated with Skybridge's executive team. He believed Skybridge's IT department was underfunded and understaffed. In October 2012, Aulick informed Cattoor of his intention to look for another job if the situation continued. The two men also discussed a need for a centralized IT department headed by one Chief Information Officer. Cattoor reported this conversation to Morris, who replied that it would be "unfortunate if Mr. Aulick left while we were still evaluating our IT plan" for the company. In December, Aulick began his job search with a focus on Atlanta, Georgia; his wife had recently accepted a job there. Aulick interviewed with some potential employers but never actually received any offers of employment.

         December 2012 saw new difficulties arise in the business relationship between Skybridge and Four Corners, one of Skybridge's most significant clients. Issues relating to IT infrastructure had previously arisen between Four Corners and Skybridge's predecessor, Argenbright. Aulick had resolved those problems, so Skybridge assigned him to deal with Four Corners again.

         In March 2013, an external audit of Skybridge was conducted by Dave Brady, a consultant. Skybridge spent a total of $17, 000 on this audit. Brady met several times with Aulick, who provided information and shared his ideas on improving IT. Brady asked if Aulick's wife would move back to Minnesota if Aulick became head of a restructured IT department at Skybridge. Aulick replied, "Yes." Brady's final report to Skybridge's executive management recommended combining the separate IT departments-for the call center and fulfillment divisions-into one department headed by a new Chief Technology Officer. Brady considered Aulick to be a "strategic thinker" and the best internal candidate for the proposed CTO position. But Brady recommended Skybridge also consider external candidates. Skybridge then asked Brady if he would be interested in the CTO position; he declined.

         Shortly thereafter, Cattoor and John Turner, Vice President of the fulfillment division, met with Aulick. Cattoor discussed the contents of Brady's report and informed Aulick that Brady had declined an offer to become CTO. Cattoor also told Aulick that Brady viewed Aulick as the sole current employee capable of performing as CTO. Cattoor then asked if Aulick was interested in applying for the position, and Aulick said he was interested. Cattoor responded, "Good. I'd be disappointed if you weren't." Going further, Cattoor said, "The job is yours to lose. You've got the inside track. Mark [Morris] really likes you." In Aulick's opinion, Cattoor was "laying it on thick." But, during this initial meeting, Cattoor plainly stated, "You're not guaranteed to get this position." The two men also discussed the application process and that the CTO position would be posted externally but not internally.

         Because of Aulick's positive impression from the meeting, he ceased submitting any new applications for employment outside of Skybridge. One day Cattoor asked if Aulick had stopped his job search. After Aulick said he had stopped, Cattoor replied, "Good." As a result of this conversation, Aulick took the additional step of withdrawing all of his pending applications.

         In April 2013, Aulick formally interviewed for the CTO position with Cattoor and Turner. The three men spent over two hours discussing Aulick's resume and accomplishments. He was then told that he would have a future interview with Morris, and most likely another one with Michael Paxton, the sole member of Skybridge's advisory board. At no point did any Skybridge executive mention salary or a start date for the CTO position. Some weeks later, Cattoor said that Aulick's name "would be one of the two that [Cattoor] would talk to Morris about."

         In May 2013, Aulick informed Cattoor that the IT issues between Skybridge and Four Corners had been resolved. Subsequently, Aulick heard from Cattoor with less frequency. Aulick assumed this resulted from Cattoor's frequent traveling.

         Also in May, Brady introduced Bruce Whitmore to Skybridge as a candidate for the CTO position. Whitmore, then 50, was a former top-level IT manager who had most recently served as director of operations and CIO consultant for a private accounting and wealth management firm. He previously worked for Carlson Companies as senior director of infrastructure of that company's call center. Whitmore had a college degree in strategic management of information technology and several professional certificates. He also served in the United States Air Force for 11 years. Whitmore interviewed separately with Cattoor, Morris, and Paxton. One topic ...


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