one four five five seven for james vogel the butler company arguments not to exceed fifteen minutes for side mr glenn and for coll court i have thirteen minutes with two minutes reserved for rebuttal i have fifteen total minutes to try to persuade the court that mr goble deserves a jury trial on his claims which were dismissed by the can goods i'm sorry thank you i have a fifteen total minutes to try to make the point that mr bogle deserves a jury trial on his claims i say respectfully but regrettably that this case to me shows as a thirty five year practitioner the increasing difficulty of an employee bringing employment law claims and surviving summary judgment and getting a jury trial this is a case which is about many facts many disputed fact well look the bottom  this about the fact that this was an at will employee and we are flying the law of your stiction right judge we there are two two responses that we don't believe that he was an at will employee because we believe that the duration based representations to him of which there are many show a longer term relationship that was established obviously the rule the general rule nothing in writing well there are some written indications your honor and there are some emails that talk about to your commitments of support guidance six to twelve months of time to get to know the job get to know the people are there any cases that say that those types of references to time periods constitute a contract for a fixed guaranteed term fixed guaranteed term i don't think i'd go that's that firmly rahner but there are cases in kentucky  talk about that being a question of fact for the jury where there are duration based representations in this case the contract with the district court judge found that the december thirteenth two thousand and ten offer letter was didn't present issues for the trial felt he didn't he didn't find that those other terms weren't in forcible he found that they did not constitute a promise of just cause employment for a minimum of two years but with respect to those those items i don't believe your honor i think that he found that because the agreement did not have a specific defined term that then it was an at will employment were by other cases carlos ishaan others to talk about that that that can establish a duration of the kind that what can establish a duration at the specific duration based representations and we have at least these like for the next two years i'm going to be trying to give you all the support i can before every tire or other things about employment or is that best after six months or ver years of are there a jury to decide we have at least these five durational of two years or more first i will make this is a guarantee that any promise from the president of the company to mr bogle before he moved and by the way the company promised mr vogel to get past his concerns about giving up a twenty five year successful career and relocating to kentucky what exactly language is it that you are relying on please mr vogel was promised in writing two years of support in any way that you know that he could be given to him in any way that mr you mean the language that says that please for the record yes that is in an e mail note from mr miller to mister vogel i believe it's dated january to two thousand levin before he gave his notice what does it say precisely just what i said your honor one of my primary commitments for the next two years will be to join with eric to support you contract but isn't the existence or nonexistence of a contract a question a lot of the court to determine will initially accept if there is a dispute as to what the term of the contract might be and what those terms including the duration may be and that's where her  commitment of the company to support him rather than defining the term of employment because the offer letter didn't fail in there that your we're here by promising you employment for a kidney well what was offered to him was not discussed in terms of a fixed term but what was discussed was a longer term relationship and that's where again these cases commune it's not just the two years of support there's a this is a he was induced by financially lucrative position which kicked in at the end of the second year with respect to long term incentive compensation he was told that that the president would approach the board to make sure that he got that after two years there's also as i mentioned reference and i will them for mr a passion mr bogle that i will make sure that you are debt free in a few years these are all part of the record and they're not there but case law doesn't support that statements like oh make sure that you're debt free after a few years and you know we'll make sure that you get this after two years case law doesn't support that that's a promise that you're going to employ that person for two or three years will get it maybe one somebodies known that they're going to be giving up a twenty five year successful career and they are being told that they could count on brutal honesty transparency openness and that nothing would be sugar sugar coated or hid from him and when we have the litany of matters that were  actionable there are no cases that say that those kinds of representations are actionable i mean the cases say that yeah if you want to be sure then you get a contract that says that you're going to be employed for however many of your year is except for just cause or guaranteeing you a lot of people leave a you know a job and say ok i want to be guaranteed my set salary for two years i'm not leaving unless i get that actually abuse i believe carlos he does touch on that when somebody does rely upon an indication that there are there are some payments that are staggered in the future future payments and the person relocates to kentucky ok what was the promise in that case the promise was well just the it was employment it was a contract case as opposed to a promissory estoppel case although i think that the promises that mr vogel has brought forward here in his promissory estoppel claim fit whether they are contract or whether they could be misrepresentation depending on whether things worked out all of these ideas that we hope everything will be well in the year two three presupposes that of a good relationship i mean isn't that the background of this judge merit when you're guaranteed six to twelve months to get to know the business before you are allowed to make any changes if you keep where is he then where was that  any language that guarantee a particular term and haven't courts basically characterize these terms that you're seeking to posit as terms of employment haven't they really much characterize that are incident to sales or a puff thing in the in the market in the sales marketplace judge the last part first i don't believe that when because of the concern expressed about giving up a successful career relocating coming to an unknown place and company and you're guaranteed was and is joyce well i don't think that it's i don't think that it's a bad bet on his every twenty six years and he's a want to go somewhere else they might we don't know what motivated him to do that but he goes and he talks to these people and they indicate well very thing works out and we were hopeful that you will be successful here and you'll end up happy and not it not end it any more i foresee only only positive outcomes is what was said and this wasn't a matter of gee you're taking a chance here and this is again a situation where he they know what it is that he's given up giving up and this is five months in the job before he was fired  without a warning or you got an evaluation and i'm not happy at all he was asked he i was asked are you happy he said no i'm are you very unhappy with the head man no i don't think so judge i don't think that that's quite how it was what did he say i think it was more in response to with your position and what you know what you're doing here and i think it's more along the lines of given that it doesn't seem that i'm needed here or wanted here because the he was promised the global authorities of the position which he never had he was promised mr miller promised him and i think a portion of it was read earlier all the support you need in any way you want it in any way i can give it he was also promised in the offer to me that remains the worry with the white wash their hands of me all the money want what does that mean well in terms of the job and in a transition into the job and understanding it time and he was in we've got a couple of six to twelve months references in the record where he was promised six to twelve months to get to know the position and the people before he would be allowed to make any changes and then later on he's criticised for not having completed any project done isn't it mr vogels position undermined in part by the fact that he was well aware at the outset that there was a particularly high turnover at this company in a number of positions and he himself apparently wanted to make the switch because he admits that he didn't he asked maybe a one general question about the turnover but he didn't pursue and the reasons for it he also if he if you do that with a high turnover how can you say the web put on notice grae you did not know of the high turnover he asked about if there were any issues or problems and was not told and nobody like to him  if he didn't ask particular question about why didn't he could have asked the people that that he could have asked his predecessor he could have asked anybody he was told that his predecessor had left by mutual agreement  when an employer promises what it promised to him he had a right to rely on it and when and when there was non disclosure of anything negative and that's what they admitted that they told vogel nothing about anything negative about the company only of things law to support this because this is there any law to support this that there's an obligation to say look we win so when you say somebody left by mutual agreement it's very clear that it didn't work out so you get on the phone and you try to call some of these people and find out what it's really like to work there maybe yes by no means was  he did he get any indication that the problem was as bad as it was as far as tune or turnover or the underlying reasons which the rest of the record reflects as far as what ok so are you saying an employer has to say to the employee well this is a really hard place to work i am a rotten no good whatever i don't get along with people and i'm not going to cut you any slack and you're really taking a risk if you come to work here but we'd love to have you i think your honor when they promise brutal honesty openness no nothing would be would be sugarcoated what he got that's right well he got fired he did not get brutal honesty he got nothing of a negative on what what what is the degree of diligence required in the situation by mr vocal and you know in an era perhaps twenty years ago there might not have as much transparency people may not have been able to get information which is much easier they are today so what if the degree of diligence required on his part before he makes the leap to this company and then relies on these representations well i don't think that first of all if he relies upon the representations  with him by saying the things that it said to him knowing what you'd be giving up each and some perhaps but but it starts with a an honest representation an employer obligated to have more on a typical used car salesman right in their make and making representations well when itself trigger some kind of diligence or at least some kind of common facility of before they make that leap some kind of diligence but i don't think that it says that you then don't give any credit to or have to independently investigate that which has been represented to you both in writing and verbal based upon again the setting in which the parties were which is so if an employer says this is a great place to work and it's very clear that it's not a great place to work and employee then sue them because they lie to potentially except as a matter we all of us have matters of opinion and so forth but it's not to say that that that if everything is positive and nothing is negative that at some point some line is not crossed especially in these facts somewhere it is but i don't believe your honor that this has to be as portrayed by pelly something that's going to reestablish or or set some new preceden system for years and years for hundreds of years as and have had a requirement concerning at will employment and that's the problem you've got here that's as to that part and i do understand and i'm not corley with that will but i do believe that in certain cases where there are indications and and other discussions of the parties that's were at will that's where there's a crack in the scenes with respect to kentucky law is recognized by carlos even by shaw this is not trying to sweep all of that away nor is this specific to an employment setting as a matter of fact i'm trying to get away from an employment setting with respect to the principles because they seem to be so difficult to assert in employment settings you just don't listen i think you have one other question for you it seems to me in looking at the record that mr vogel did not argue before the district court a claim of failure to pay certain employment benefits that that amounted to the breach of contract he now argues that the district court opened the door as to that claim a nd i want to know how how can the us sort that that claim was impact properly raised at the district court level if i'm understanding your honor this has to do with the after the summary judgment was with whether or not the twenty thousand dollars signing bonus which was a complainant of the offer letter which was deemed to be an forcible contract was was a contract as a matter of law so in other words the order of the april fourteenth two thousand and eleven two thousand and twelve was briefed and it argued and ruled upon it later came up that the judge on his own discerned that the declaratory judgment action and the counter claim with respect to the twenty thousand dollars signing bonus could be decided as a matter of law ok let me ask this differently did you make a claim below that you were entitle to temporary living expenses or yes you argued that or you well we've never been and never been face to face before the court but it was briefed us the twenty thousand dollars some twenty thousand dollars signing bonus the the holidays and personal days pay and the living expenses all argued and briefed as a matter of not just the contract law but also as a part of the statutory wage claim that was brought up in co two i don't know if that's what you were asking is that what you're asking ok thank you please the court i'm originally came or in behalf of the athlete evil or company i do agree with your honor that it's been a very unpleasant situation for both sides but the decision to how doesn't carlos you're losing the promise that was made your honor was quote the plant it was guaranteed employment for as long as he wished to remain which you know is an indefinite term but it is still a term which is different than mr mobile the decision to hire mr powell was not or taken lightly certainly his decision to come to since the n f l minnesota was not w something that took a long thought on his part he came to kentucky three times to interview over the course of two months he met with multiple members of bowlers management team including mr miller who at the time was the c e o he is now since stepped down mr pashley was the been work out for i think i'm sorry i misunderstood you i was the question for mr bogle to mr miller was she fired no i believe the question was what happened to her why she no longer here was the question put to mr miller and the response then was she wasn't if it didn't work out but were didn't try to hide her name they could have not given him her name didn't make a fool it's explanation of what really did that no sir he did not but most employers don't go into that and when you're interviewing and trying to attract a candidate didn't do that your honor that's the whole point of this it's all everything is builder should have done bill or should have done mr rove will is a sophisticated businessman he was being recruited to come to the number two position in this company he was going to be amply compensated for that then what happened he was not the leader bullard expected him to be there were progressive meetings over the he started january of two thousand and eleven i was looking to why he was not performing at the level the board expected at someone in that position with twenty six years of experience when asked in his deposition if he could tell me a single project he had originated in completed in the six almost six months he was at bullard his response was no is it true that you promised him six to twelve months to get the lay of the land know that comment was made by jed born in the final interview that mr grandson of the founder head of the order to make that representation i don't the representation six to twelve months to learn the job is not a guarantee of six or twelve months of continued a point what did he say exactly it will take you six to twelve months to learn the ropes to get acclimated to the job that is what he said to mr o if that's the if that's the statement then that suggests that it may it may be reasonable for somebody not to be able to generate originate rather complete projects within the first six months of employment that's right your honor but he couldn't point even a single project he had started in the six to twelve months he had been there so that was that was bullard's problem with that and if somebody says to you it'll take you six to twelve months to learn the ropes you don't think that that could reasonably be interpreted is that ok i have a trial period at the end of you know i'm going to get six to twelve months to learn the ropes i understand that your honor but mr mogul was a season businessman you know six to twelve months but you still have to do something in that six to twelve months and but when you're getting into the question of cause that's a different question is it reasonable to assume that that person will get six to twelve months to learn the count five was always an equitable stoppel claim until we got to the appellate level that he did not raise it was promissory estoppel is not family the complaint or the amended complaint so i know they're very similar but that accent will have a contract pre supposition is  at will kondracke but where you've got all this conversation back and forth i mean you know why shouldn't a jury decide what's fair between these parties this is a matter of law the court has determined whether or not there is a contract and what the preceded him well i think he didn't ask the right question your honor i mean some of the questions what was it why did was he fired or what it was what happened with her what went wrong it was a she's not a good fit is what the response was from bullard's management so i don't see that as  misrepresenting about what happened it was that if you known and go back to again mr bogle could have asked for an employment contract for a specific duration from bill or when i asked him why he didn't do that he said i guess i forgot i guess i just didn't do that he could have altered the term unemployment he did but he didn't do it for those people do much he's me dress people too maybe that's true seems to me there are two different questions whether he had a right to some sort of employment for period of time and whether there was a good enough reason to let him go right ok separate question so on the question on the initial question i go back to this statement that it's going to take you six to twelve months to learn and measure again why couldn't that be interpreted as that he gets six to twelve months to learn the job under kentucky law for employment it will have to be an explicit clear statement on promissory estoppel ok ok ok ok your honor and again he didn't make any effort to get that clarified about what that meant so i don't see that as a stop claim if there's a very big difference between saying our company made one hundred million dollars in profit last year and we share that with our employees and saying we're a great place to work come work for us we're positive there's a whole industry now in h r arena best places to work so if we take you know if we take mr vocals argument here your honour's what about an employee that goes to title to falsify the situation she's me you're not entitled to or falsify  situation that's correct or are but i don't believe mr douglas put forth a single fact that bullard lot about here take his subsection how the world should work someone goes to work innocent find that company be the best place to work are they going to get a reason to sue their employer because they don't have the same opinion there's no evidence that well once opinion and one is and i mean right and say ok this is the best place to work of up law but if you say to somebody it's going to take you six to twelve months to learn judge and i'm committed to giving you that support but they're not let the offer letter doesn't follow up there's no representation of that in the written agreement the offer letter is not it doesn't purport to be an integrated agreement i mean right so i think you can you know look at the context why couldn't that be seen as some sort of that's more than saying  you know it's a great place to work and we will and our hope is that you're going to be with us for many many years to come that you'll retire from here as stupid as mr bullard's opinion that he thought it would take six to twelve months for him to to f e m a to the position i don't see him saying that as we're giving you guaranteed employment for six to twelve months i see that as his opinion that that's what i think it should take you to get up to speed to how we do things and versus how you got he had been in the country for twenty six years so obviously he knows their processes a lot better than he ok then isn't that some sort of representation that they're going to look at him as someone who's getting acclimated for that period depending on what he's doing within that period i mean if he's not doing anything in their opinion he completely failed to form a very honest we're going to ask you another question what about what why isn't there a jury question about the temporary living expenses i mean the judge linked everything else to employment right even though there were promises for these things well it's it's implied if it's implied that it has to do with your employment but when you look at the living expenses in the offer it's tied to him moving and it has if needed and it says if needed and if needed one reasonable understanding of that seems to me it's at least as it's at least ambiguous that when you say if needed it doesn't automatically relate to the employment it relates to the moving that if you are still in temporary quarters it's given you until july or whatever the month that was or september we're going to pay it seems to me that there's a question of fact on the one issue well the district court held that the if needed was tied to the term of employment so yeah but that's what the court held it seems to me it's at least ambiguous that it's really tied to his living situation and the move from minnesota i understand that i see the ambiguity and that the terms of the short term the short term incentive and long term incentive it was clearly tied to simpler plants and tied to the plans that each had prerequisites a short term incentive had had to be in the chair when it was paid had to be there at least six months they had had to be there when it was paid had to be there at  be sceptical to us anything like that before giving him an opportunity correction thing absolutely starting in february of two thousand and eleven why what's that record show it shows that mr pash called him in on numerous occasions at least as early as february of two thousand and eleven and said i don't i don't you're not performing at the level that i expect i don't know what it is you need to find a project make it as your own he was you are not supposed to be the second meetings as early as february of two thousand and eleven continuing in june and then there were at least two in june and then two follow ups in july to say tell me what you bring to the table mr pash wasn't happy with what mr vocal brought to the table your honor so he was given an opportunity to at least what was he told anything over them we're not happy with what you're bringing to the table different now he was told you need to pick a project that you can make your own show me what you can do with that project mr bogle picked the companies long term strategic plan to make his own he didn't even develop that to the level that bullard wanted by the time the july sixth meeting rolled around in which he was terminated so there were but if you're doing a long term strategic plan and if it employed for them plans mr pass believed did express some reservations about his ability to do that given his tenure with the company and encouraged him to see more in check on his record at the former company he was working for to see what is reputation was or what they might say about a more any kind of diligence you're saying that mr vogel should have been diligent did this company check on his record there absolutely doors they found that it was good and it was good yes we did we board did not directly interview but the recruiter did it on their behalf and he did come back with good references from their previous employer and  how do you distinguish the shock case excuse me how do you distinguish the shah case this this case you know is different your honor in the sense that the representations that were made were so general in terms of duration and i don't believe it's hard to expand that that was our contention before the district court there are many facts here and many of the facts don't necessarily square neatly fit neatly within the existing law because i've never seen a case like this it's not to say that another one has been out there but very quickly know when when ms came or talks about that mr goble was told that ms kony didn't work out that's a euphemism for let go why not just tell him this wasn't supposed to be you know of game of hide and seek and so forth th but if you got into the reasons why that might be one thing but if she was terminated that's not the same thing as leaving by mutual agreement or the other thing is he asked about another he learned that another director of sales had left a previous to his arrival mr guglielmi is referenced in a footnote could not stand mr passions micro management that that is a part of the record yes for this how ago did he get discharge i'm sorry good when did he get discharge he began in january of two thousand and eleven and was just charged in early july of two thousand eleven so just under six minutes or is he now he's been underemployed and unemployed since that time he's been unemployed back home to where he was before he stayed no well living he's returned his life is returned to minnesota but his work takes vice president he is nowhere near that level nor near the compensation or the or the position may just follow up i see my time is up but it has to do with the six to twelve months because that's and in two places in the record not just judd bullard the chairman of the board he told vogel that he would spend six to twelve months assessing and analyzing the company's organization processes strategies and steph issues and mr bogle was told by mr miller mr pash that it would take six to twelve months for mr goble to get to know the business and that he would need to absorb the business products and culture before making any appropriate marketing and was any conversation one way or another about this i think mr passion runner is the person to whom most of the concern about micromanagement control freak and so forth has been directed as opposed to how demand is a record joe in feeling about him  passion it does your honor including the comments of former executives including the former vice president of sales who preceded mr vogel and in the in the consternation among personal caused by mr parrish was described as a dysfunctional environment a sea of sharks a micro manager and any toxic and poisonous culture of that information derived from the testimony deposition testimony of part of the record from his kinney the former vice president of sales and getting before mr vogel and mr korb who was the director of marketing at the time mr vogel was hired although mr vogel wasn't told that mr patten mr pash intended to fire mr korb when mr bogle came aboard your papers point to the fact that prior to the meeting with mr pash mr vocal prepared out a pair appointed to use as a part of his presentation and that mr pash access to obtain that part of the meeting that your allegation that something about that power plant precipitated the terminations well i hadn't heard and i don't think that the record establishes what ms kaymer indicated as far as some performance history or performance but there was never a warning issued there was never a performance evaluation given rather when in late june mr pash talked to mr bogle and there was discussion between mr of passion mr vogel about whether mr vogel you know should be there want to be there and mr vogel said well given that my paraphrasing know given that you don't really let me do much and you've kind of cut back on my authority is i don't know that i'm needed here so mr pash who was going on a trip at the time said let's meet again on july sixth when we need to put together for me something which was described as what what you bring to the table and what mr goble then did was he went about a power point presentation of that when he got back to the july sixth meeting he had he had e mailed it from his personal e mail account to his office e mail account when he got to the meeting on july sixth mr paschal already had a copy of it which mr vogel had not given him but which mr pash tried to say that that he had and that in the district court noted that that was an untruth that mr paget lied to mr vogel about that as the record includes other indications of mr pash lying about things but that there was no do substantive discussion about what you bring to the table he came to the i think it was eighty or ninety million in sales which is smaller than the company that mr bogle left where he was vice president and member of the executive team in his prior employment eighty or ninety million dollars sales go that's what i understand as far as revenues