This is a breach of contract action. Defendant Optus Software, Inc. (Optus or the company), a small

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This is a breach of contract action. Defendant Optus Software, Inc. (‘‘Optus’’ or ‘‘the company’’), a small computer software company, hired plaintiff Michael Silvestri as its Director of Support Services, responsible for supervising the provision of technical support services to the company’s customers. Silvestri’s two-year employment contract [commencing on January 4, 1999 at an annual salary of $70,000] contained a clause that reserved to the company the right to terminate his employment for failure to perform to the company’s satisfaction (the ‘‘satisfaction clause’’).

   Nine months into the contract, Silvestri was terminated under the satisfaction clause by the chief executive officer of Optus, Joseph Avellino. Silvestri filed this action, contending that the company’s dissatisfaction was objectively unreasonable and that therefore his termination was a breach of the employment contract. The trial court granted summary judgment to the company. The Appellate Division reversed, however, holding that an employer must meet an objective standard for satisfaction in order to invoke a right to terminate pursuant to a satisfaction clause in an employment contract.

   The question presented then is whether the employer’s satisfaction is subject to an objective or subjective evaluation. We conclude that, absent language to the contrary, a subjective assessment of personal satisfaction applies and that the trial court’s grant of summary judgment to the company was appropriate. * * *

   * * * Silvestri was charged with supervision of the support services staff, responsibility for communication with resellers of the Optus computer software to end-users, and coordination of ongoing training for support staff and resellers of the company’s products in order to maintain their proficiency in assisting end-users. * * *

   The record indicates that Silvestri enjoyed the full support of Avellino during the first six months of his employment. Avellino’s communications within and without the organization praised Silvestri’s abilities and underscored his role as leader of the support services group. As late as July 16, 1999, Avellino sent an e-mail message to all members of the group, exhorting them to support their new supervisor. The e-mail referred to the problems Optus had been having in providing technical support to resellers and end-users, stressed that Optus had hired Silvestri to help alleviate those problems, and again asked the staff to support Silvestri.

   Although Avellino repeatedly expressed his belief in Silvestri’s ability and efforts during those early months, his attitude started to change during the summer months of 1999. In June, July, and August, several clients and resellers communicated to Avellino their disappointment with the performance and attitude of the support services staff generally, and several complaints targeted Silvestri specifically. Avellino informed Silvestri of those criticisms. As the criticisms mounted, Avellino’s concerns and frustrations grew, as evidenced by his e-mail exchanges with Silvestri and others. Finally, on September 3, 1999, Avellino told Silvestri that they needed to have a ‘‘heart-to-heart’’ talk about his performance. On September 17, 1999, Silvestri was terminated.

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   * * * Avellino explained that he terminated Silvestri because Silvestri had failed to ‘‘exhibit the leadership and management skills necessary to perform his duties to the Company’s satisfaction.’’ He cited the objective evidence of the complaints received from the various customers and resellers as well as the concerns and frustrations he communicated to Silvestri at the time those complaints increased. The implication of the certification was that Avellino’s dissatisfaction was not an after-the-fact justification for termination. The relationship had been deteriorating over time and finally reached a breaking point after Silvestri failed, in the company’s judgment, to respond adequately to the numerous customer complaints. Optus is a small company in the business of customer services, and difficulty with support to resellers and end-users of Optus’s products carries the potential for significant consequences in such a business.

   Silvestri did not assert that there was any reason for his termination other than Avellino’s genuine dissatisfaction with his performance. Rather, Silvestri challenged the reasonableness of that dissatisfaction. He portrayed Avellino as a meddling micro-manager who overreacted to any customer criticism and thus could not reasonably be satisfied. * * *

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   Agreements containing a promise to perform in a manner satisfactory to another, or to be bound to pay for satisfactory performance, are a common form of enforceable contract. [Citation.] Such ‘‘satisfaction’’ contracts are generally divided into two categories for purposes of review: (1) contracts that involve matters of personal taste, sensibility, judgment, or convenience; and (2) contracts that contain a requirement of satisfaction as to mechanical fitness, utility, or marketability. [Citation.] The standard for evaluating satisfaction depends on the type of contract. Satisfaction contracts of the first type are interpreted on a subjective basis, with satisfaction dependent on the personal, honest evaluation of the party to be satisfied. [Citation.] Absent language to the contrary, however, contracts of the second type—involving operative fitness or mechanical utility—are subject to an objective test of reasonableness, because in those cases the extent and quality of performance can be measured by objective tests. [Citation]; Restatement (Second) of Contracts §228; [citation].

   A subjective standard typically is applied to satisfaction clauses in employment contracts because ‘‘there is greater reason and a greater tendency to interpret [the contract] as involving personal satisfaction,’’ rather than the satisfaction of a hypothetical ‘‘reasonable’’ person. [Citations.]

   In the case of a high-level business manager, a subjective test is particularly appropriate to the flexibility needed by the owners and higher-level officers operating a competitive enterprise. [Citation.] When a manager has been hired to share responsibility for the success of a business entity, an employer is entitled to be highly personal and idiosyncratic in judging the employee’s satisfactory performance in advancing the enterprise. [Citations.]

   The subjective standard obliges the employer to act ‘‘honestly in accordance with his duty of good faith and fair dealing,’’ [citation], but genuine dissatisfaction of the employer, honestly held, is sufficient for discharge. [Citation.]

   Although broadly discretionary, a satisfaction-clause employment relationship is not to be confused with an employment-at-will relationship in which an employer is entitled to terminate an employee for any reason, or no reason, unless prohibited by law or public policy. [Citation.] In a satisfaction clause employment setting, there must be honest dissatisfaction with the employee’s performance. The employer may not claim ‘‘dissatisfaction’’ as the reason for termination when another reason is the actual motivation, even if that other reason is neither discriminatory nor contrary to public policy and would therefore pass muster as the basis for discharge of an at-will employee. Moreover, the dissatisfaction with the discharged employee must be honest and genuine. If, however, the employer’s dissatisfaction is honest and genuine, even if idiosyncratic, its reasonableness is not subject to second guessing under a reasonable-person standard. * * *

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   We hold that a subjective test of performance governs the employer’s resort to a satisfaction clause in an employment contract unless there is some language in the contract to suggest that the parties intended an objective standard. There is no such language here. * * * We are, moreover, persuaded that in the circumstances before us, application of another’s notion of satisfactory performance would undermine recognized and accepted notions of business judgment and individualized competitive strategy, as well as principles of freedom of contract. Idiosyncratic judgments as to what constitutes satisfactory performance are expected and should be permitted. The employer, not some hypothetical reasonable person, is best suited to determine if the employee’s performance is satisfactory. * * *

   Turning then to application of the subjective test in this setting, * * * we conclude that the entry of summary judgment in favor of defendants was appropriate. The only issue available to Silvestri is whether the dissatisfaction with his performance was genuine, and he has failed to make a prima facie showing that it was not. * * *

   The judgment of the Appellate Division is reversed and the matter remanded for entry of summary judgment in favor of defendants. 

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Smith and Roberson Business Law

ISBN: 978-0538473637

15th Edition

Authors: Richard A. Mann, Barry S. Roberts

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