granted when there were significant and material fact issues made available and shown to the district court so summary judgment simply shouldn't have been granted  the employer should not have the right to determine cold as or it salespeople in fact that was never a contention made by the plaintiffs however facts were shown to demonstrate the arbitrariness provider for this particular salesman and in fact jewel stern and was treated differently than other salesman before you go past that as i understood the record at the end of the year two thousand and two december two thousand record supplement of thirty three where you can see the percent two year to date growth hoda as of the time he was fired at ninety one point ninety percent i on disability leave he returned and at the first of the year january and by january sixth of two thousand and three i his employer had put him on a performance improvement plan he's his new  so the point from our perspective your honor is that by arbitrarily immediately putting him on a performance improvement plan for a time period which related to plan because he had exceeded his company's founders by april and he continued to to excel after that although we can see that there were a couple of lower months during the summer  in their appendix to the record there are numbers which are  is a as we pointed out this is a high performing salesperson who loses downward spiral if you will started with a new supervisor who came in and began imposing discipline immediately after  i don't have any such documents judge in fact one of the problems we have is that this standard he was being judged by was what was being called a three month rolling average which appeared know that your honor the three month rolling average was something in the way that we actually asked about and discovery and we're told that they had no documents to describe the describe the three month rolling average nor did they have a way of showing us how it was if you had if you go below eighty five percent for month one if you go below eighty five percent from two and if you go all below eighty five percent for months three then you fall within that policy provision but this rolling average  argument and only one growth well your honor i'm i'm saying i'm saying that when i asked other employees says that this was not how it was ever done this is what this is the three month rolling average went out when the defendant was asked said they have no way of telling us where it came from or how it was calculated so just right with the you know i understand what you're saying your honor that it's your interpretation is that it's easy to calculate the eight where we were as we were looking at going back what had he done at that point in time he had only that seventy five percent of this year quota number one which under the written policy would permit us to where he says that during the year i was out on disability leave for six weeks that's the extent of what he says on the record about when he was out during two thousand and two and what are  remember this is some regret where you have to raise a legitimate issue with pakistan say it's not solved you have to do something about it in our app moving in our affidavit we say in two thousand so this your standard was on disability lea montana wrongful discharge employment act but i'm in summary judgment motion the district court could not have been more aware of what his duties were in terms of looking at the record and finding a happened with the fam he did have a couple of months where he improved and we immediately took him walk him now we're talking about a performance improvement plan that was given to him in writing where he was asked to do certain things and his  manager doesn't have the right to tell a salesman who is not underperforming that you have to go to a fact the basic sports we're going to try to help you we're going to try try to train you i guess if you take that away and you have to submit weekly sales to your i think that it's it's important for the court to understand that there is an arbitrary application of policy and i refer the court to appellants excerpt of record page sixty five which shows that as of june you was that ninety six point two percent is present hota attained again this is one of the defendant's own documents we have presented affidavits which are attached to the excerpts of record from stewart snipper and from douglas floyd as well as from jules verne i have pointed out that they had always been judged always by the year to date standard which is articulated in the policy the decision not to apply it this time is is arbitrary there is no requirement by the way in montana law under the discharge act to show pretax all that has and disgust the question of what it legitimate business reason is whether it's false arbitrary whimsical or prescience what i tried to show in our briefs that the staff are that the standards that were applied to jules verne ad were indeed arbitrary and i should also point out that when he was placed on the performance improvement plan arbitrarily in january he was removed from it by believe either march or me by the defendant because he was exceeding their own founder's so any reference back to the period of two thousand and two as a basis for firing him