I realize that, but what I was attempting to say is that I don't understand how selective enforcement can be used to argue unfair or illegitimate termination.

He gets to keep the stock if he were fired without cause. He was fired with cause, so he could not keep it. He wants to keep it. So he wants to poke a hole in the 'for cause' part of his firing.

The first argument is that he never actually violated any policies, and thus there is no grounds for a for cause firing.

The second argument is that even if he did violate the policies, his conduct was not out of place given so many others at Bungie were doing it who weren't fired. This means that they specifically singled him out because they didn't want him to keep the stock. That would mean they weren't operating in a manner of fair dealing.

I mean, if 50 million dollars were on the line wouldn't you make every argument you could that had any chance at all of winning the case?

Nothing that I'm about to say should be interpreted as a defense of anyone. Corporations routinely have employees sign off on new or revised policies. That's a marker. As long as the company can say, after this date, none of this behavior by anyone was tolerated, the unfairness argument goes away.

Does it, though?

Cody and Schooly are saying that the legal argument can be made that enforcement was unfair as long as the ex-employee is able to demonstrate in court that his peers who engaged in the same conduct and violated the same policies were not penalized. How would the signing of a document change that premise?

Again, in my view, poor enforcement doesn’t nullify what’s on the books. Employees are expected to behave a certain way and the company is well within their rights to terminate anyone who is unable or unwilling to do that.

Schooly said previously:

You're correct, this is a clear indication that you're not a lawyer. His case isn't "I never did X, Y, or Z," it's that his termination was unfair or illegitimate.

I realize that, but what I was attempting to say is that I don't understand how selective enforcement can be used to argue unfair or illegitimate termination. Companies are not perfect. There's no way they can monitor employee behavior perfectly without any oversight gaps, which mean there's no way they can enforce their policies uniformly. So even if Barrett is able to demonstrate that "everyone else was doing it", how does that help his case? That does not at all mean that he wasn't doing it -- which, to me, is the only thing that seems relevant here.

In order to prove active targeting, would he not need to provide evidence to support the claim? For example, texts between executives talking about how much they'd love to ice him out of the organization?

No, I think he'd have to prove they knew others were doing it and did nothing.

It just seems like his argument is inferring way too much about Bungie's motive. Selective enforcement can easily be explained as a consequence of poor monitoring... or perhaps Barrett's conduct was simply more pervasive than that of his peers. There are dozens of alternative explanations.

Lawyers are so annoying.

A key phrase in what I said above was "after this date." Often, the motivation for updating policies is to make clear what they will fire you for, have you sign it, and THEN, the next time you engage in that behavior, fire you. Think of it like terms and conditions, another thing people sign without really reading. I don't think it's uncommon for this to be in preparation for firing certain people. Other people might even be given a (verbal, undocumented) heads up to knock off such behavior because they are not the target. Yes, that's unfair, but this is all block and tackle to make the charge of unfair treatment unprovable in a suit.