of whether or not he was terminated for cause in accordance with the definition of undersell it says deferred compensation plan it cannot be cause to terminate employees existing contract that he declines to modify that contract by accepting a new position while mr peck was an at will employee and that meant that his employer was free to propose modifications to his employment and even condition continued employment upon that agreement as selig's concedes miss kopeck was entitled to decline that new position and then the employer could decide whether to terminate him too of obtaining a ploy he would agree to the new conditions or to continue his employment under the existing terms but mr pak exercising that right to decline the offer of new employment cannot be cause for discharge under the definition of sell x is an reasonable interpretation of the plan which is also arbitrary and capricious because it contradicts lane meaning ultimately reduces to he's obligated to do whatever his employer directs and to do including taking a new position and that is simply an effort to read into the plane an exclusion for the offer of comparable employment that nowhere appears in it can run a factual question which is yes or the position that he was asked to be moved to  is the under that the top hat plan was that a position that would also get the benefit of the different composition of the top atlanta i would not position have put him in a different place in the org chart so that he would be one of the top one but rather the plain reading of the plan is that mr pax entitled to his accrued benefit because so x chose to terminate his employment in order to obtain rather because he declined to modify the plan and that disposition of the interpretation of cause also resolves the ultimate issue under count one and mr paxson titled the judgment in the amount of nine months of severance pay the district court erred by ruling that his position was not eliminated or rather under the men his whole doctrine selleck should be precluded from now contending only after the initiation of litigation contractual ground that it never asserted when actually performing under the agreement in september two thousand and twelve its position mr pac was there was no other job for him in the district and the duties not the position but the duties of his business development vice president position had been distributed to other employees it did not deny his severance benefit on the ground that is a position was not to eliminate and therefore he wasn't eligible because that positional emanation was in eligibility issue not an exclusion rather relied on the exclusion provision of cause terminations to deny him the benefit now the district court ignored that meant his hold issue that is followed in the district after first being established by the supreme court in mccarthy but this court should apply that to preclude selleck from now arguing this issue of position elimination but even considering the issue the district court erred in its conclusion that position is not a limited since all of the objective facts whether it's the elimination of cell x s d c staffing to just one employee working from home just a few months after mr peck's terminations the closure of its office the elimination of its mailing address and that more than a year later it wasn't seeking to fill its position all of those objective facts established the position was in fact employment whether that language necessarily means employment in a position which is essentially a position which is that has to mean that has to be what it means or just employment in some fashion with the comp the company's position and what one of the best indicators from your perspective that what it has to mean is employment in a position are the best indicators of that your honors the specific language that's used the material duties not just generally generically duties but the material duties of your employment and again the purpose of a risk which is to put the ordinary person on notice of the conditions of the benefit and so material duties can only reason be interpreted in terms of what are my duties now that is in the position that i am in now as opposed to the duties that i can't know about that are of a position i've never held salute simply wouldn't be possible to put the ordinary person on notice of duties that the him he or she doesn't now perform and could fail to perform since they aren't the duties of the position that the employee now performing and so there are very specific definition of cause and the plan is what requires that it be the material duties of the position the employees in at the time that the terminations decision is made i mean there's there's your that submission is not went out into the force that you could have a situation in which an entity hires individuals into a position and the position by nature is one that just doesn't entail a particular set of duties at a particular location it could be that you know just to use a far afield example so you have a training program and a training program to position as a trainee position you come into the training position you accept a position we don't know where you're going to be stationed it could be anywhere in the country and we don't know exactly what your duties are because it's going to depend on the local needs but what you're agreeing to come into is a open position that is just one his duties and his location and all of those details will be filled out later but you're coming on board with the understanding that it could be any of those yes your honor there could be a scenario where that's true because at the time of the employment the employees put on notice of that and therefore in performing that position the employee knows that there could be broader duties associated with it presumably that are related to the the current duties but broader duties that's just a question of how the employment is defined by the parties and the scope that the parties define it and material duties could vary from one employee than another even at the same company and so that's true for mr peck however he had a specific position with specific duties and therefore that language has a different notice a different connotation application to his specific position so your honor even considering it fifty two ways clearly erroneous standard was considered under the severance plan is simply those objective facts and even the ultimate fact cited by the district court in its two sentence conclusion supports that the position was eliminated we would say as a matter of law you can't rely on alleged replacement at a post merger company a new company and apply it to a replacement at a pretty major company but the reality is there were three companies merge and there were at least two employees at the predecessor companies in this business development position and following the merger there was only one circle fifty two doesn't apply because there's no disputed facts no credibility determinations and the question of whether the position is eliminated should properly be considered a conclusion of law not a finding of fact  can as under the u s c general motors standard i think what we would submit that even if through fifty two was applied it was clearly erroneous because it's contrary to the objective undisputed facts in the record and therefore yes the record evidence is clear that it on september thirtieth two thousand and twelve so let's informed mr peck that due to the circumstances of the terminations of his employment he was not eligible of the deferred compensation plan or support severance policy might be interesting but ultimately the question of the contract is that you are eligible for severance under the under the policy if your employment ends due to position elimination even if mr peck's the zisha and was eliminated at some point in the future which we office now we serve that that was cause for term nation of employment obviously mr peck disputes that it was but there's really no one who's ever asserted that mr peck's employment ended due to position of a nation and no competent record evidence other than speculation about what might have happened eighteen months after his term a nation to say that his position was eliminated you know just as a rough practical matter how much is at stake with the severance issue and how much at stake with the deferred comp issue  yes under the deferred comp i think it's approximately fifty seven thousand dollars and under the severance policy it would be nine months of severance and i believe it's in the range of one hundred eighty thousand and to speak now about the arrest a claim under the pet away case when a plane is given an interpretive discretion this court reviews courts review their their denial of a claim under an arbitrary capricious standard so that ultimately means in the parties essentially agree so let's just give you the benefit of the doubt on the standard first than on just as a matter of assumption for now i'm not saying that that's necessarily right but let's just assume that to be true on even if we give you the benefit of that does your position mean that you could have told mr pac you know here's the obligations of your employment we need to take a ninety percent pay cut and we need to move into essentially ministerial clerical position and i don't mean to denigrate that position but the pay would indicate that it's not valued as much by the company this far away and if you don't do that obviously you're not at hearings here literally duties and obligations of your employment because this is what we need to do to your employer and you'll be council to answer that question that there he would have been remained eligible he was moving from one vice president role to another vice president role he was but it's a different position you did the company doesn't deny that it's and i think the way you've described is it is a division oh absolutely hard because one one limiting principle that seems to work and the way against which all employment law seems to operate is that a position is the thing that you are hired into and a different position is a different thing in which you could in theory have been hired into but you weren't and when you move from one position to another particularly when you're moving halfway across the country that's just a different set of material duties that could be your honor but in under the course of the party's conduct over mr peck proximately fifteen years of employment he had accepted if he had taken and business i should say had been assigned numerous different positions at the discretion of the company he'd always performed them and the moving back and forth across the country issue is i think of less importance here in that we were reassigning him to the headquarters in kansas where he had lived for most of his career where he still own the home and to a quality and technical role that he had performed similar roles to  throughout his throughout his career yes some people might think louis that his a demotion having gone up there i would say that but it does seem to me to be a it's just a different situation and it's seems questionable whether the contract that refers to material duties and obligations of his or employment doesn't necessarily mean material duties and obligations with respect to the position to which you're hired and if you want to be moved to if you are asked to be moved to a different position than most employees would naturally think well now you're asking me to do something that i wasn't hired to do and of course you're right that in some situations the passage may well have been to my advantage to take the move that you've offered me but now you offer me something that i just don't want to do i want to stay in the position that i if you what you gave him the opportunity to do was to move into a position that wasn't part of the top plan no i know they didn't i know you're saying that don't happen but i'm just saying suppose that that's that was the offer you actually pay is going to stay the same here refused to accept that then that would have been a termination for cause i think that that would approach changing the material nature of the employment as it significantly changes  compensation our position here is that he received a significant cost of living increase when he went to d c that would have dropped away our position is that it's effectively he would have had the same compensation in kansas and in d c he would have remained in a vice president role be it with different substantive duties and and as i was saying a moment ago the parties went into this with an understanding mr peck refused and insisted on continuing to perform the position in d c which was no longer available to him was not eliminated but was no longer available to him and was given notice that we regard this as cause for termination of employment and he was given the proper notice period under the contract to start under the plan to continue to cure one when he left initially the position was performed by mr warner the c e o of the company he duties were also assigned to two consultants who selects had to paid more for their services ultimately the job was consultants including those that we had to pay more compensation to as a result of the increase of duties it is true that we did not immediately put somebody into that position so you're saying you know the position was open but not filled is that what you're saying peck was not terminated because of his position was eliminated but for cause confuses that the four cause provision is an exclusion under the severance play not knowledge ability provision and as i've already presented we believe the record establishes a position was eliminated the asserted ground is to exclude him from receiving a benefit is otherwise eligible for and that is this for cause assertion and so that's why we contend the district by well your honor it's that the operation was in fact closed all of the employees went from a high of ten to twelve to two to three at the time the mr peck's terminations the only one a few months later the office space itself was closed its d c presence was eliminated and the duties were distributed to other employ existing employees which under for example the six circuit case we cite to the court that is evidence of position elimination of course  heads doing the same duties that's what a riff is and that the post merger replacement even if considered in fact shows that mr pac wasn't his position was not a survivor since  concedes he never held the position in the merged company and just briefly on the question of requiring him to accept this other position nothing in the plan the arista plane deals with any of these issues there's no standard under the aggressive plane of reasonable ness or making the position of this sort of the other because there is no comparable employment provision and therefore there is no standard under the plan for the position that so it's asserts thank you thank you councils the case is a minute