case number sixteen fourteen forty three vs dow corning corp oral argument not to exceed fifteen minutes per side beth reverse for the app promises made to a long term valued employee of dow corning and despite her dedication loyalty and reliance on her employers words and deed in reliance in which she gave up valuable employment benefits and agreed to permanently relocate to the united states dow corning failed to follow through on those promises resulting in financial losses and are going on an express promise a theory or an implied promise theory express what was that promise the promise was to as part of the local the promise was to localise her which government as to whether to issue a green card or not and and we're not arguing that that dow corning could control the government's actions what what i think the trial court missed in that regard is what it means to localize and i think all the parties both the managers on dow corning side and the plaintiff understood which maybe the trial court didn't is that by definition local local requires a green card she could not stay in the position she could not obtain permanent residency she could not localize without the green card which the application although not the obtaining of the green card but the application and processing and sponsoring of that application was under the control of dow corning are you stitching that express promise from things other than the reservation to the local  at their testimony what they testified to was that by definition localization requires a green card and requires permanent residency and that's where the express come promise comes from if you say we're going to localize you it it broke down right from the start and i think this is the other error that the trial court made in looking at the factual background of the situation the relocation expert immediately notified the immigration attorney in february that she was to be localized and they should start getting the green card and the immigration attorney sent the paperwork back to tao to start the process in the first step in that process was for the employer to do the job description nothing could happen until the employer completed the job description and nobody disputes that is that where you say that the violated their promise was not pushing the job description or kind of exactly where did they go wrong in your i don't think there's  one single spot where they went wrong i think what went wrong is they delayed and delayed and delayed and didn't do what they were required to do to process the application to the point where became impossible for them to get it done what information it she wasn't an h r expert the information was within the control of dow corning she asked for their assistance in getting the information and heard her part of that process comes after the job descriptions done and the job description as far as we know wasn't even done as of november of two thousand and thirteen she was localized in february of two thousand and twelve there was february of two thousand and twelve she began that position in april and as i started say before they got the paperwork that they needed to complete the questionnaire from the immigration attorneys in february they didn't even distribute that to the dow managers to start working on it till august there's no explanation for why they waited that long and then nothing is done and then in february she gets a new position and because the process hadn't been started we now have to start all over and work on the new job you referred earlier to the relocation expert which one is that there's two of them butler and rather jack now you're i gather you concede though that your client was an at will employee absolutely and we've never argued anything different we don't believe that getting a green card meant that she could never be terminated or that there was some transferred into just cause employment we've never argued that you know i don't think that that matters we're not saying that they couldn't terminate her for poor performance what we're saying is they couldn't create  pretext of poor performance to justify their failure to do with they promised to do alleging this poor performance was a pretext absolutely and let me explain that connect to at will because if you're arguing pretext you're sort of arguing some type of cause aren't you arguing no as they say they say they're doing it for x reason and if she's at will they can do it for any reason they could but i think an inference that you can dr from when you make up an excuse it's not true to justify your actions then you can you can challenge the legitimacy of the decisions they made what's your best case for that i would go to the discrimination case some pretext even though that's not what we're arguing in this case i don't think there's any case in the breach of contract context that i know of you're not alleging gender discrimination or age no we're not no we're not  argument i don't know if you want further explanation she got a great review in two thousand and twelve she got a great review for two thousand and thirteen which was issued in february of two thousand and fourteen if you look at a believe it to exhibit twenty four to our response a motion for summary judgment there's e mails from  her team praising her performance as of may of two thousand and fourteen when things go south well i don't know that they ever did the the negative review was a mid year review and that occurs after may have twenty fourteen  after recognition by their managers that they can't get the green card processed in time going just going back to the statement here usually we say at will employment in the employment discrimination race gender will usually say an at will employee can be fired for any reason but not for a discriminatory rate and i guess coming back to the question in this type of circumstance you know we're not alleging any of th e is there any case that you know of that that addresses conflict beam i'd say between at will employment and what reason you can give for no and your honor let me clarify we're not suggesting that if she truly was a true poor performer they didn't have every right in the world to demote her or terminate her i guess what i'm saying is that the trial court is required to read to look at all reasonable inferences in the light most favorable to the plaintiff and i think one of those inference is a gate that lets you litigate her employment performance in a contract dispute when the dispute isn't about whether she her or her performance was a characteristic because it's at will employment that's where the puzzle is but i think that that that would be an issue that would be tried i don't know that  else was going on in their mind you know we're not saying that she was a just cause employee and that she could never be terminated we're not going to litigate that issue that's not the issue that was before the court rooms as to what whether they're violating a contract whether they whether they used performance as excuse to justify their actions when in fact their action the move to belgium was caused not by poor douthat efforts to pursue the green card because there's no dispute that doubt took from effort toward that right right but i don't but i think that their efforts were meaningless in the light of what they had to do we couldn't get the process started until they got their job description and they took two years to get a job description drafted for an employer when they have an entire h r department who does job descriptions and in fact the plaintiff testified that least ochs had prepared a job description for the new position but i think you counsel you have your time for rebu back from the trees in taking a couple looks at perspectives on the forest first point words matter the plaintiffs criticised the arguments we have made characterizing our position words when we compare the translations of the alleged agreement that she's offered in her briefs with the agreement she alleged in her complaint which was explicitly four times to obtain a green card for do corning now in subsequent arguments she's now identified in her lawyers words by my count seven different interpretations of that alleged agreement and just to illustrate that in her reply brief which of course we didn't have a chance to reply to there were two new alleged promises those were the promise to process her application for a green card and then next a promise an alleged promise of a position in the united states which required her to localise which in turn required defendant to sponsor her we previously had allegations that the promise alleged as one to obtain became a promise to sponsor became a promise to use best efforts became a promise to pursue a promise to pursue and attempt to obtain or promise to take the necessary steps to obtain those are all quotes from the briefs that she's filed but those words do all mean the same thing without question to obtain certainly is distinct from to use best efforts or to process the application or to sponsor her so if the plaintiff herself can't even resolve what specific contractual promise or misrepresentation she's alleging how could it be that she could satisfy the quite rigorous test that michigan law has established for any of these three claims fraud  contract your honour's i'm sure know these terms but for a fraud claim it must be pleaded with particularity the evidence must be clear unequivocal and cogent and the plaintiff must plead the time place in content of the alleg has applied these very same principles in terms promissory estoppel must be used cautiously only when the facts are unquestionable and the courts them emphasize that no subjective interpretations are sufficient to that what happened dow corning agreed to localize and when and what emphasize one thing localization is the matter of coming off an expatriate arrangement where terms and benefits compensation and such are determined under her belgian employment card eventually we were going to have to try to try turn which is and she climbs though that you didn't try hard enough with your honor first of all the try hard enough allegation is not has never been played in this case th allegation was to obtain second under michigan law the best efforts requirement is a specific legal theory as letting to noted that the that legal theory nor its premises were not put a best efforts obligation under michigan law arises for example when i get make you my exclusive sales representative in a certain area and i don't receive any other consideration in exchange for agreeing with you to that will you then have an implied best efforts obligation because if you don't go out and try hard i don't get any other consideration that doesn't apply here it's clear ms guess own got lots of consideration she got all the benefits compensation that were associated with he employment there's no question that the process is when a person localizes it will be necessary for dow corning to begin the process to sponsor that person for a green card that is not a contractual obligation we all follow lots of processes at my house part of the process when we don't have any gas in the car that my children drive the process as a mom or dad go by the gas but that doesn't create a legal obligation mr  in this case i know there are lots of theories about the nature and extent of the promise but why isn't it appropriate to have the jury hear the  friday what promise they all made and whether or not that promise was reached i hear you saying because of the various words that are in there that i'm assuming you're  that we never really had a meeting of the mind or to create a contract of a missing authentic element or act but if we if we have if we were if we reject that back from him then why wouldn't it be appropriate for the jury to make the call on what with the promise and and was there in back of root for two reasons your honor first because the evidence that's been presented through deposition testimony is unequivocal guess on testified to exhaustion about all the conversations that occurred that she would now rely on as the basis of her alleged promise and we measure those that evidence up against the legal standards in michigan to establish any of these three claims breach of contract promissory estoppel or fraud they don't meet that standard and that's absolutely unequivocal the second key reason and the second really overarching point that i want to leave with you is it's undisputed factually and legally that she remained at will employee and as your questions judge gilman and us this question of ms rivers how does all of this fit with the fact that she remained in at will employee when a person is an at will employee over the reasons why an employer may remove him or her from the position we don't litigate over whether ms rivers perspective on ms guess owns performance or dow corning spur specht of on her performance is the correct one because corning retained the undisputed right to remove her from that job for whatever reasons it deemed sufficient and it's very important to note that her own expert witness immigration expert testified to that effect there's nothing about the green card process or a company's initiation of an attempt to get a person a green card that requires the employer to either continue that person's employment much less to continue that person's employment in a position where they would be sufficient manager with already for that position to be green card eligible in other words to make her case is guess own needs much more than a promise to sponsor for a green card she needs a promise that for the remainder of that green card process as long as it may take dow corning we will not leave we will not excuse me we will leave you in a position we won't terminate your employment the position we leave you when will be  sufficient responsibility that meets the green card standards and we won't even change that position because if we did we'd have to start the greencard process all over again i would emphasize also your honors that in michigan the so called covenant of good faith and fair dealing which the plaintiffs alluded to once or twice has been squarely held not to apply in the context of at will employment that's the cockles orses international business expositions case we cited in the brief and the other there was a point at which dow corning decided to stop the green card process because they were gone and they made the managerial decision to send her back to belgium correct now they didn't tell her right away how long was that gap between the time they stopped the green card process and when they informed her that she was going to not be continuing to stay in the u s about two weeks now according notified the this is the story is that this is the point when it's guess own subordinates were reporting to human resources that she's tyron ago and there are problems with her communications and management style and h investigates and says there is substance to this can we keep this person in a management position given her characteristics the judgment was that no we can't the conclusion from that was if she can't be in a management position she's not going to qualify for a green card so they instructed their immigration attorneys who had been engaged in a lot of work on this process to stop the fraggle unlawful act but they didn't tell me as guess so and yet because they needed to develop i think in courtesy to her some message to her about what was to come next and those are all simply factual assertions that get into the weeds again but if we stand back again in contemplate that all this happened in the context of at will employment dow corning had the unqualified right to take those steps the third point that i would want to leave the court with is that there was no drop dead date by which a green card had to be obtained this relates probably mostly to her contention about fraudulent concealment and hers but it's also important because it really refutes the the whole theme of this case the theme being dow corning bungled this greencard process realized that they were not going to be able completed in time for ms guess on to get a green card so then they contrived these reasons to remove her so they wouldn't be embarrassed by that the premise of that whole argument is false as her own expert testified that there is an arrangement by which a person on l one visa can recapture t she the clock doesn't count against her l one visa unless and until she's actually working in this country where she spent a great deal of her time traveling to other countries in this position so quite plainly if she had gone to another country for a while she could obtained an indefinite amount of additional time on her l one a and the green card processing could have continued all along and her expert also testified this is not an uncommon arrangement at all when you run into these kinds of considerations so the whole idea that the green card was becoming impossible and therefore motivated some subvert subversive strategy by dow corning is just categorically false the how how long was the gap between the time the dow corning agreed to localize her and when she was sent back to belgium she was a group of big localization discussion began in december of two thousand and eleven she on the books took that position in april one of two thousand thirteen oh i think it's one of twelve but she did start performing earlier than that and she went back to belgium april one of fifteen exactly three years terms of the time she held the job which you referred to as the two weeks between deciding and telling her we're doing something is that between august eleventh and august twenty seven yes august twenty seventh is the e mail to the fragment attorney yes but when did she i'm sorry was an interval of time between the time the decision was made and fragment was notified and then the time when the plaintiff was notified began over brief says september thirtieth so that would make it a month or so i can't address that your honor i don't b obviously further in terms of our perspective on the case i don't believe it's relevant ok one last thing i want to point out if ms guess on under these facts has an in forcible contract or an enforceable promise under promis estoppel then by definition likewise does every other foreign national who comes to this country to work on a permanent a so called permanent basis every foreign national is going to be able to say it was necessary for me to take this job on a permanent basis that i get a green card every foreign nationals going to be able to say they come company undertook to sponsor my green card and there is if this case provides a basis for a jury to consider the existence of a contractual obligation to litigate the reasons for the removal from the position to  detailed circumstances of who did what when in terms of processing this green card then so does every other foreign national who comes here under these circumstances that would represent a massive incursion into the at will doctrine that is all of you know as well the stablished in michigan law and in the decisions of this court that have applied that law unless you have further questions that concludes my remarks thank you thank you rivers you have your remaining time for rebuttal just to address your question judge bug's about the timing it was august eleventh and then august twenty seventh when they notified the firm and she was not notified for five weeks later to september september third and then you know the other fact about the performance was that they she was so bad that they wanted to keep around the train your successor so they kept her till april of twenty fifteen you know mr fallon makes a policy argument at the end about how this will affect all foreign nationals but it doesn't affect all foreign nationals and only affects foreign nationals who dow corning decides are good enough that they want  stay here permanently and want to give them a permanent position and when they when they make that localization when they offer them the permanent residency they also have an obligation to work to get the green card that will allow that to happen  it didn't have to be said you didn't have to use the word green card you didn't have to put in the localization agreement because everybody who was involved in the situation knew that by offering the promotion with permanent residency you were offering to get the green card or to sponsor and take steps to get the application for the green card their argument is that that we could say we're going to do it and then not take any steps to do it and that's ok and we did takes them they hired the frog law firm they did advertise eventuality for to see if a u s citizen could fill the position they did takes that they did there's no doubt they took steps i think they were very delayed and dilatory and and caused the process to fail i think there's no doubt about that either you know their own root relocation specialist says the delay was caused by their failure to get the job description done that's what she testified to in her deposition and so i do think that the burden is on them you know they're under michigan law it's true that you can alter an at will contract with a good faith and fair dealing covenant however the courts do say that there is a duty of good faith and fair dealing when one party controls the performance and i think that's what we have here i mean the the  application for the green card was completely within dow corning control and their failure to act is what led her not to have that green card and not to be able to stay say in the country of the failure of the job to that in her deposition you know she was a employee that they wanted to keep she the this claim about the different terms that were  used to describe the contract was just at the they were descriptions in my proof i cited to the places where i said pursue a green card the promise was understood by by everybody