good morning justices my name is leo donahue and i represent was the real well thanks for the promotion but we're just judges the only justice is the federal system or the nine why it's people up here this morning for two reasons to ask you to this level but i just i'll be blunt with you i don't see a single shred of evidence in this case that suggests that your client is anything other than an at will employee if you read the california cases on all the factors that you refer to they seem to say that that doesn't get you don't want to employer to tell their employees that they have a great future with the company that if you come to work with us you're going to have all these benefits and you can only be terminated for cause but in reality you're out well well i took an easier route because i guess you could argue over this and i wondered why even if you well i couldn't understand that there was anything actually issue with respect to cause the investigation of the employees and that's actually explicit material and the transmission think there was i think if you look at the way we're asking the court to look at the case if we're asking and we're saying to the court here's the twenty four year employees that work daily today today he went to work under certain terms e mail policy there was nothing that we had access to but this is the workplace harassment which your client acknowledges knowing around and in my client didn't work in the workplace we know that my as they were they used to it was all the people in that garage agreed that those pin up calendars roquet and they had the exact same policy that mark had i don't think that would be sexual harassment because basketball game or whatever it was that's no different from the picture he received of the new soccer team frontal nudity from his own boss so what i'm saying is here we have well that's that's a separate issue i mean he was the only one in his office there was no one else there i'm like i'm like his supervisor who has the penis joke on his computer that everyone saw who was not terminated so we're saying that if you four years he works within a certain parameter usually used to how he described working for this new boss it was they were like hormone with these people that he was working for sexual jokes all over the place there was a policy how many people were hired as a result of this investigation they fired i think three seventy five seven people tall and next to another another issue that h an oral promise in california was as good as a written promise he is told if you do your job here you can't be terminated without cause that's what he's told so he goes along with this he then witnesses people being fired other people came in  is poker came in mr johnson moses johnson who worked its way through the company and finally was to go to guy for policies and procedures this is the guy who everyone went to in the coming if you had a question of policies and procedures i practice he said very clearly we don't charmin it without that's exactly what the california law is designed to say if the employee has a reasonable expectation that he's not to be treated arbitrarily no one else knew about was not enough they didn't say that if you went to the man who's responsible for policies and procedures in the company and he in his policy was that you terminate  california labor code it says there is a presumption of that one point in the california instance got to be back till that that presumption has been strengthened because it's clarified exactly what an employee must prove any wrongful termination or a breach of contract are enough withdraw my skin qualifier for normally my point would be what ethics officer what president a company or what manager would say to anyone who asks a question do you normally do you have a good reason to terminate any  rational an employer should have a good reason to terminate employees now the gusty tackle the president of the actual testified and had a statement that said we always have a good reason when we terminate employees my really big underlying point on this that is ethics officer supervisor present the company was required to say no we're at will and we can fire fire employees randomly and then to secure  that at will employment in the state of california merck are any employer would have to randomly fire people well it's friday in order to preserve the at will employment doctrine of this state we need to let a few people go because we don't like their tie we don't like the way they came in the song this morning and that's not the law the law is clear in california we want to encourage employers to have good reasons to terminate employees and if that merck acted incredibly responsibly here they didn't fire mr riehl arbitrarily they conducted an investigation and so forth none the less even though they carried out and met the four cost standard they are now well employer in california and there is nothing in the record  he doesn't indicate the supervisor had authority to make such statements in fact the actual policy of merck expressly says that line managers managers do not have the authority to alter the at will employment status so that other than his testimony material fact it doesn't even remotely come close to what in god's feedback will this california supreme court said was necessary in that case you're honest the california supreme court said you need to have something if there's a presumption of that one employment ok you need to have something direct to that employee preferably a written policy and that case dealt with a layoff and they want it they want to see that there was layoffs teachers that were written down that were followed and were not followed but you need to have something that is clear and direct to we want to secure your employment so with some form of consideration there has to be something more direct and i would say that there's nothing here in this record that even remotely touches on the guys we've got to standards now testimony page one twenty one twenty nine he was that let's start easy did you ever receive any pictures of a naked human being yes did you for those pictures of a naked human being anyone else ye i'm not trying to make a trick question the question is did you ever receive pictures of two people engaged in a sex act yes did you ever four pictures of two people or two people engaged in sex act and your colleagues yes deposition testimony on contradicted page one employer in the state of california it doesn't seem to control to its sales force about what is acceptable exchange a sexually explicit pornographic e mail and put the judgment into the hands of its sales force using workers and if an employer in the state of california has to be held hostage by sales force that they can take the freedom in the liberty to decide when they have the consent of they were sitting on the other like to touch on the court would allow me i'd like to touch on four cars and that is that the standard of four cars a set forth in the california supreme court case in in the coach and case it was the california reports that for the clear standard says the employer has to have a reasonable good faith belief that misconduct has occurred in the workplace it ultimately when it goes to a jury the jury doesn't reasonably according the california supreme court you conduct an investigation and you apply reasonable and good faith standards ok so based on that and you act honestly based on that what did merck do in this case to establish good cause you conduct an investigation focused on a legitimate purpose and that is to determine whether it's computer systems being misused for the exchange of sexually explicit materials it used the  was line manager he was they were in sacramento area and what did he do and what if anything happened to him this very good question that's next in the record is the answer the answer is classifications and for where they put individuals in those classifications ok and as long as the employer had a reasonable in good faith believe after conducting investigation that there were differences that warranted different employment action s then the decision can be decided as a matter of law based on the undisputed facts principal place of business which i think to is in new jersey i believe that it's either new jersey corporation or delaware corporation and it was included in the diversity removal papers and i know the complaint dandified oh and that's a standard that will agreement you know right that's the standard that will agreement well that's what he signed and you take no no no he didn't sign that he didn't study the first one borg are on board nothing no mention about well none whatsoever someone on for twenty four years with practices that permeate the company and then trot out a policy that no one knows about no one knows about there was no evidence in guts that anyone else didn't know about that well where you were staying here similar job she was a work at home stay away from the company the at all of these policies around the in trying that mr mark did not have she was the one who made a complaint so there's a rotten atmosphere here and merck seems to tolerate all these kinds of jo we everyone thought they were the rules were kind of the practices and then they tried out of policy in and that's just it goes beyond me i mean times have changed people used to behave in ways that we think now are very offensive in the workplace and in