argues that its interpretation of its own company policy is entitled to deference however it is actually t j maxx interpretation and it's application of that policy that demonstrates both that sandy peterson did not violate the policy and that good cause did not exist to terminate her appointment to what extent do we second guess of our lives second guess the company's judgment i mean she she enough yes and and one i think very illustrative or one piece of evidence that demonstrates that it wasn't good enough is that in the past other supervisory employees had engaged in the exact same conduct i e drinking with subordinates on business trips that cindy peterson was fired for and they weren't terminated the wrongful she had been butting heads and that this is just a pretext i assume that that's a violation of the montana good caustic that certainly would be your own question is whether that whether her version of the story that is a myth peterson is a version of the story is true because she says i got fired because bennett didn't want me around because i was older but i had and i've been on trips where we do drink a supervisor never been fired the dentist let latin know about this well actually now it's a lot and told me he's taken out as employees after meeting her stuff and drank so he goes i understand and then meanwhile we got a deposition of him you've got a declaration as lessons as a strict policy but it's a strict policy he apparently doesn't have self observe so the question is whether we believe or exactly or aren't and and  she did state in her deposition that i believe is on the record that she did believe that she was terminated because she and penny who became sort manager after she was in after she was already promoted to assistant merchandising manager that they essentially did not see eye to eye and and like you said they butted heads that certainly is the reason that cindy put forth that she was terminated and i think going back to the to the well i guess in a sense then it is a heads it and and essentially penny wanted to get rid of her she got rid of pretty much everybody that was part of the previous regime that that is sandy's statement but getting back to also what you've stated aside from that the reasons that they gave weren't proper and weren't good enough and don't don't rise to the level of good cause ok so can i reiterate my question because i'd like to know what your view was of the montana statute that specifically  it was in fact that wasn't discussed it so i don't don't know what his view of it was he emphasized not the drinking generally with subordinates but he emphasized the fact that there was a minor there and that would not be a lawful activity so i'm trying to figure out  why where you think the montana statute fits into your case as saying they can't rely on her drinking beer off after hours relied upon the fact that he stated this was a job related it was a job related business trip and so therefore it was exempted out of the statute however i think given that the way that t j maxx previously interpreted their policy such that they haven't terminated other supervisors for drinking with subordinates while on business trips when it seemed to indicate that that wasn't job related when everybody's off the clock and then you were drinking with your subordinates so therefore it would be a lot full use of the legal product essentially alcohol off duty  premises and so therefore it could not statutorily constitute good cause well i think it could constitute good cause i think of this as frankly as a pretext case if the only thing we had in the record was she went out after hours with employees who are some ordinance with one person who is young cern's out he's under age she says in her deposition she did not know that he was under age she says no deposition he was and she can't remember whether he was drinking or not but he's clearly in the room and we've got evidence from others that he was drinking and then they stay up until somewhere between three and six in the morning and the motel rooms that have a mass afterwards if i'm an employer and that happened i think that's good because my question is not down whether that could be good cause my question is whether that's the real reason and i think there's a lot of evidence in here if you believe your client that that's not the real reason certainly  i would agree entirely with you that that based upon her statements and her beliefs that yes she was essentially shoved out the entire old regime when it was shoved out when penny penny dickey came in and took over as she my client was actually promoted by dennis latin because at that time penny dickey was not in place and they were in between in between supervisors and so i would agree that there is pretext for reasons there are also pretty good argument that just wasn't meant for you i don't remember seeing it in your blooper your pardon i said this is a pretty good argument that and that we can we can i mean if it's an issue if you're ok i must say i don't understand this is why i asked the questions again with about pretext i think i use the word pretext but anyway i thought i was getting at i could i didn't think it was in your case maybe maybe it is and i missed it and obviously the stretching it was developed in the record before the district court lots of stuff happens for her district as i did not write this brief but i'm actually arguing the brief i could not tell you for a positive i i don't believe the pretext argument was developed within our blue brief right that's a little bit of pollen i in all honestly don't believe it's a problem because i think that still the their previous actions t j maxx his previous actions their stated reason i e the conflict of interest policy which if we look at there's no mention anywhere drinking alcohol in fact everything deals with things such as nepotism having a familial or more romantic relationship with somebody that you're supervising or gaining a financial benefit through knowledge of t j maxx procedures that is to the detriment of t j maxx i think all of those things at before this court and i do not believe it was raised before the district court either however it was there was the preacher i mean the district court rules that the news insufficient supplemental briefing we can do that but i believe it has been some for the moment that we have supplemental briefing in the question is without any difficulty in front of us how do you respond to the pretext argument based on the evidence that's in the deposition believes she was in bed by three and then they got up late they had breakfast i believe at the leaven o'clock and she might have been afraid but we're not talking about somebody who goes on a bender until six am and starts driving at seven that is true but get we do get back to the pretax question the pretext their whole case is based upon mistaking the store manager supposedly having it out for mr peterson right and at the end of the testimony in the deposition it's very clear that ms dickie as the supervisor has it out for her and a lot of others she didn't do it her way this is her store she got rid of the old people some are forced to quit some of them are fired that's that's that's the deposition testimony from peterson there is speculation from peterson that i believe a lot of it  testimony from because she names the people and she says she recounts a conversation or conversation she had with ms dickey so i said it's testimony is evidence and the jury can believe it or not i mean i don't know whether it's true or not but that's what she says but i believe that your honor that you know focusing on mistaking mr latin was the one who conducted the investigation after the initial report and mr latin was the one who got statements from the employees and mr latin was the one who made the decision without  easy to terminate miss peterson's employment so all this focus on miss dickey i believe is and who called her to say she was fired i do not know off the top my head your honor it made a mistake i did not call came in to her from the employee's mother so but then this area and this mr latin this is mrs dennis right correct so the deposition testimony from ms peterson is actually dennis latin had told me that he had taken i was in place after meetings and stuff and drank two and he goes i understand this is latins now declaration and t j actually a strict policies regarding the consumption of alcohol during job related activities a job related activities any activity performing further its including our activities during on a business trip and for them as policy t j s prohibits managerial managerial employees who consuming alcohol with supporting employees during store base business trips you know i'm not sure i'm to be terribly comfortable putting mr latin on the stand with this declaration up against miss peterson it says yeah he did it himself i believe i mean we've got a conflict here in the sense to money i don't think the conflict  what you need when you're on a company trap whatever you do is on company time so what if an employee is on a company trip and is visiting a friend you know that's living in that town and friends or maybe maybe a few on sale or boyfriends or you know you know whatever and that also company time know you're not in charge of in this peterson in this case so it's not the case as the the argument and i believe it was something along the lines of to what extent can the court second guess the company's judgment and i believe the montana supreme court has answer that question and since one thousand nine hundred one it's had all these four cases a description of the state of facts that i think is at least permissible for a jury to conclude with the facts given the evidence in front of us mr peterson takes your employees on this inventory trip to kalispell after they finish the imagery work they go back to the hotel with alcohol that they had bought previously they drink alcohol and tell about three in the morning there is an underage employee with them who is one thousand years old but mrs peterson does not know that he is under age there's a complaint afterwards by the mother of one of the people who was on the trip that complaint was also a couple of phone calls so carried what happened and so on and then  supervisor latin who apparently according to you did the firing even though it was dicky who did the phone call has a declaration here says there are strict policy for bidding drinking with subordinates while on business trips even though m employees after the infection was finished that she herself was a subordinate employed drank on business trips latin told her that he as a as a supervisor drank with the players while he was on business trips and further that ms dickey has a policy of getting rid of and she's butted heads with dickey and she believes ms peterson believes that she was fired because case and this is a quote my templars possessed broad discretion to terminate manager employees because she failed to fulfill her job requirements or thin play believes employer believe that cannot trust her as a manager to run the day to day operations starkly so let's say that there is a possible reason for firing this supportable under montana law but the real reason has nothing to do with it and she is fired for a reason that is not going to cause as muntadhar a law allow us to look to the real reason because they butted heads i do not believe that the hypothetical that you've given is would be sufficient for a pretext case because there's insufficient evidence supported that and looking at the facts of under your  know i think would have to suspend reality for the jury to believe that because it's undisputed that the call came in from the mother sure knowledge and mystically there's no i got no excuse yeah there's no well there's no record evidence that obviously she was that mystic he was behind that and then frankly mistaken turn the investigation over to mr latin and there's no nothing in the record or even your hypothetical and this or latin has any ax to grind whatsoever with miss peterson so you can't even go along that cat's paw theory that somehow mr latin was provided bad information by you know mistake he and he relied upon it was somehow motivated by mistake these dislike for miss peterson for whatever whatever reason i don't think a pretext argument flies on the record no i just like to know in this context what's the role of the month and has that eliminates you drinking has element of good cause short is the element of good cause that if you actually look at the  actually i think it is thirty nine dash to dash nine zero three and it goes to the good cause definition which is section five it does say the legal use of a lawful product by an individual off the employer's premises during non working hours is not a legitimate business reason unless the employer acts within the provisions of thirty nine dash to dash three thirteen three or four subsection three or four and if you go to thirty nine dash to dash three thirteen subsection three  with that i believe a statement was made and not in the presentation of the appellant to signify one of one of you all i'm sorry i can't remember which one but the that you know the record shows the block right what i'm what the black some spinning off of guidance presentational that i have no idea what you're talking about what what is a showing here that this impasse ability to form what was evident she was drunk on the statute has exceptions and the exception you pointed to is it impasse ability to perform her job use and  whole time she was the statute by its terms as it protects drinking during non working hours so you're there is that she was on twenty four seven as was on this business trip short she's responsible for the her subordinates that she's there and i think this is a more of a commonsense case if an employer cannot terminate a employee a manager in the manner that she did on the record that's before the court then you know frankly it would lead to absurd results as long as because she's what she's basically saying is i was drinking you know therefore i can do what i want to do because about her manager's behavior to reach out and call her mother and wonder if her mother should come pick up several hours away because of her manager's behavior i think it's within t j axes discretion to say i don't want someone like that being a manager at my integrity you need to do your job you don't need to get drunk for a whether it's two hours or five hours with four of your subordinates one of them is under age was it was a very positive she was that on the back of the evidence is that of vodka was bought and that everyone consumed alcohol and that the manager of the hotel reported well judge fisher just gave you the answer she says in her deposition i had five years right but you three am she probably is drunk but i legally but i can't answer that question ok thank you thank you i just me address a few things that were stated once again t j maxx says as cited to one particular exception that i believe it's prior interpretation of its own policy demonstrates does not apply in this case when discussing perform job related employment responsibilities we've just been talking of certainly and and i believe just want to put that out there i believe that their prior  statement that he's done it multiple times that we have dennis latin we have cindy drinking with her management on at least two other business camps and so i think that that demonstrate that they don't believe they don't follow their policy but no i question is whether or not you come within the statute or they come within the statute exception to the exception on the theory that the policy clearly says that a supervisor is a leader and leads by example and part of her responsibilities is to make sure that the a set a good example and that the her subordinates follow the rules and i believe say that duty ends or those responsibility ends when they're done with the inventory on a business trip where they're in a town where they're all you know in a hotel where they're clearly identifiable as outsiders perhaps and they may well be that they're in effect representing t j maxx on the road you don't think an employer could be with concerned that the supervisor in charge of this work party is participating and sanctioning this kind of  behavior that wakes up one of the other employees on the trip and causes her to call or mother you don't think that would be a violation of the duties of a supervisor i don't believe that the record reflects that she woke up the other employee of the couldn't get this yes no did wake her up because she never could get to sleep ever been in a hotel room next door or the party going that's loud and noisy i have your honor and i've notified the front desk that's are exactly right and if you knew it was that people with their badges on from that convention or that  presume i would i don't think that the facts i think there's at least an issue of fact as to whether that conduct was engaged in in fact the only support that we have to support that painting dickie statements about other people's statements which would be inadmissible hearsay and should be relied upon by the district court anyway so he got other statements about drinking i mean got several statements cameron statements in the record i  agree entirely with that i'm talking about whether it was whether people were drunk whether people were rowdy whether there were issues certainly certainly miss dickie didn't consider that there was enough of an issue to actually call up and talk to cindy peterson that night or to ensure if if she presumably thought that she was drunk one would assume that she would also call up before she left to assess her level of intoxication to make sure that she wasn't driving the employees home and in the braided level