Full opinion text
FLETCHER, Circuit Judge: Levolor Lorentzen, Inc. (“Levolor”) appeals from an adverse judgment in favor of plaintiff-appellee Ada Kern. Kern obtained a general verdict against Levolor on claims of wrongful termination, breach of the implied covenant of good faith and fair dealing, and age discrimination. Kern’s claims all arise under California law; jurisdiction is based on diversity. Levolor argues several grounds for reversal: (1) the district court’s refusal to grant it judgment notwithstanding the verdict; (2) the district court’s failure to order a new trial on the ground that the verdict and damages were against the manifest weight of the evidence; (3) judicial misconduct; (4) eviden-tiary error; and (5) error in the jury instructions. We find none of Levolor’s arguments meritorious and affirm the judgment of the district court. FACTS Kern was employed by Levolor to make wands for window blinds. [R.T. 7/27 at 37]. She began her employment in 1979, and was discharged on February 4, 1985, when she was 59 years old. [R.T. 7/27 at 37, 40]. Levolor employed three wandmak-ers, one on each shift. [R.T. 7/28 at 35]. Kern worked the third shift. [R.T. 7/27 at 37]. All three wandmakers were over 40 years old. [R.T. 7/29 at 50]. All had received the highest possible employee rating at Levolor (“AAA”). [R.T. 7/28 at 39; S.E.R. 1]. Of the three, Kern had the least seniority. [R.T. 7/28 at 45]. In late 1984 or early 1985, because of a slowdown in orders for window blinds, Le-volor decided to reduce its work force. [R.T. 7/28 at 39]. Management held meetings with employees to discuss the possibility of layoffs. [R.T. 7/28 at 41], Levolor intended to meet with all employees who might be subject to this layoff. [Id. at 42]. However, Kern was never informed about these meetings or about the possibility of layoff. [R.T. 7/27 at 97], Employees were rated with a “golf score” to determine who would be laid off. [R.T. 7/28 at 41]. This score was based on employee rating, production and attendance. [S.E.R. 55-66]. The employees with the highest scores in each department were to be laid off first. [S.E.R. 55; R.T. 7/28 at 45-46]. Kern was not rated. [R.T. 7/28 at 45]. Levolor contends that Kern was not given a golf score because she was the only member of her department on the third shift. [Id.] However, Levolor did rate other employees who were the only people in their department. At trial, Levo-lor could not explain this disparity in treatment. [Id. at 103-04]. Although Levolor purported to compare golf scores only within departments, [Id. at 47-48], it did transfer two people between job classifications during the layoff. [Id. at 48]. Levolor had an express, written policy of laying off AAA-rated employees last. [S.E.R. 32]. Three other AAA-rated employees besides Kern were laid off in February. [S.E.R. 70], These three employees all were laid off voluntarily [Id.]; Kern, by contrast, was not given the opportunity to take voluntary layoff. [R.T. 7/27 at 97]. Although Kern had the least seniority of the three wandmakers, Levolor’s own Employee Handbook stated that seniority would not be a determinative factor in layoff decisions. [S.E.R. 32]. In addition, trial exhibits indicated that layoff decisions, in fact, were made solely on the basis of the employee’s grade (“AAA”, “AA”, etc.), production, and attendance. [S.E.R. 55-66]. On February 4, 1985, Levolor laid off several employees, including Kern. [S.E.R. 70]. As Levolor’s orders again increased, it began recalling the workers. [R.T. 7/28 at 53-54]. By May 3, 1985, the plant was again operating at essentially the same capacity as before the layoffs. [R.T. 7/29 at 70]. During the summer, Levolor hired several temporary employees to perform odd jobs, including wandmaking on third shift. [R.T. 7/28 at 59]. Levolor also advertised for unskilled workers. [S.E.R. 74-75]. However, although most or all of the other employees laid off in February were recalled by June 5, 1985, Kern was not. [R.T. 7/29 at 70; 7/28 at 110]. Before her layoff, Kern had been given a positive rating for “adaptability”, [R.T. 7/27 at 59-60], and had performed various tasks besides wandmaking on an as-needed basis. [Id. at 65]. Nevertheless, Levolor did not offer to recall Kern to work in some position other than wandmaker. In June 1985, Kern received a letter from the Levolor profit-sharing office notifying her that she had been “terminated” as of February 4, 1985. [S.E.R. 72]. She telephoned Levolor to determine her status, and was told she was on layoff. [R.T. 7/27 at 114]. However, the plant manager never responded to her written inquiry about her job status. [Id. at 114-15]. Meanwhile, Kern looked for work but was unable to find any. [R.T. 6/30 at 28]. She stopped her job search when she developed a skin rash and a nervous problem. [R.T. 7/27 at 113]. In September, 1985, she moved with her husband to Ohio to live with their children. [R.T. 7/27 at 29]. On October 18, 1985, Levolor sent Kern a brief letter stating that they had a job opening to discuss with her. [S.E.R. at 79]. By this time, Kern had already filed a complaint with the EEOC. [R.T. 7/27 at 115]. Levolor admitted that it intended to employ Kern in cutting an entirely new piece, called a “vogue valance”, in addition to performing her old job as wandmaker. [R.T. 7/28 at 54], Levolor asserted that Kern was chosen for layoff because she had the least seniority and lowest production among the three wandmakers, and that the layoff was consistent with Levolor's contractual obligations to Kern. Kern asserted that Levo-lor had a contractual obligation to lay off AAA-rated employees last, that it failed to follow its own procedures in marking her for layoff, and that she was the victim of age discrimination. The case was tried to a jury which found in favor of Kern and assessed damages of $237,000. The district court ordered a re-mittitur and entered judgment for Kern in the amount of $137,000. The district court declined to award attorney’s fees. [R.T. 10/01 at 5]. The district court had jurisdiction under 28 U.S.C. § 1332 (diversity); we have jurisdiction under 28 U.S.C. § 1291. The Notice of Appeal was timely filed. This case primarily requires us to determine whether the evidence is sufficient to support the jury’s verdict. Our review is narrow and limited. I. JUDGMENT NOTWITHSTANDING THE VERDICT Jury verdicts are due considerable deference. In reviewing the district court’s denial of JNOV, we apply the same standard as the district court. We may reverse the district court only if we find that the evidence and its inferences, considered as a whole and viewed in the light most favorable to the nonmoving party, can support only one reasonable conclusion — that the moving party is entitled to judgment notwithstanding the adverse verdict. The verdict must be affirmed if supported by substantial evidence. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014, 1026 (9th Cir.1982). A. Wrongful Termination Levolor contends that Kern failed to produce evidence that it breached an implied-in-fact employment contract. This argument has two parts: first, Levolor argues there was no contract, i.e., that Kern could be discharged at will; second, Levolor argues that even if there was a contract, it was not breached. 1. Existence of a Contract California provides by statute that “[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other.” Cal. Labor Code § 2922. Nevertheless, judicial decisions by California courts have established beyond cavil that an employer’s course of conduct can create implied-in-fact contractual terms of employment, including a covenant not to discharge an employee except for good cause or to discharge an employee only under certain conditions. See Pugh v. See’s Candies, Inc., 116 Cal. App.3d 311, 171 Cal.Rptr. 917 (1981); Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 222, 765 P.2d 373, 383-84 (1988). The existence of such implied promises is a question of fact for the jury to decide. Foley, 254 Cal.Rptr. at 223, 765 P.2d at 384-85. In determining whether such promises exist, the jury must look to the entire relationship of the parties. Id. at 224, 765 P.2d at 385. Factors include, but are not limited to, the terms of the employment manual, the employer’s personnel policies or practices, the longevity of plaintiff’s service, acts or communications by the employer reflecting assurances of continued employment, and whether plaintiff has received consistent promotions or salary increases. Id. at 225, 765 P.2d at 386. Although the evidence of an employment contract was not overwhelming, it was adequate to allow the issue to go to the jury. There was evidence that Levolor had a policy of laying off “AAA” employees last; that Kern was “AAA” rated; that Levolor had a policy of rating each employee before deciding on layoffs; and that Kern was not given a rating. Trial exhibits indicated that layoff decisions were based solely on the employee’s “grade” (AAA, A, B, etc.), “average” (production) and “points” (attendance). Seniority was not a determinative factor, either in the ratings actually made or as indicated by the Employee Handbook. The evidence in favor of Levolor does not compel upsetting the jury’s verdict. The jury could have concluded from the evidence that Levolor had impliedly promised Kern that she would be treated fairly and would not be laid off except in accordance with the policies stated in the Employee Handbook and by the procedures applied equally to all employees. Although the Handbook states explicitly that it “is not a contract of employment,” Kern does not rely exclusively on the Handbook nor argue that an express contract is embodied in the Handbook. Instead, Kern argued that an implied contract existed, proved in part by the Handbook but more importantly, by the actual personnel policies and practices of Levolor. 2. Breach of Contract Levolor argues that even if it had a contract with Kern, it was not breached. It bases this argument on evidence tending to show that Kern was laid off for the legitimate business reason of a reduction in force due to economic conditions. See Malmstrom v. Kaiser Aluminum and Chemical, 187 Cal.App.3d 299, 231 Cal.Rptr. 820 (1986). However, there was evidence that even if Kern was laid off in order to reduce the workforce, Levolor nevertheless laid her off in violation of its express and implied promises to follow certain procedures and hierarchies in determining which employees would be laid off first. Especially probative was evidence that Kern was the only “AAA” employee involuntarily laid off at that time; that she was not included in meetings to discuss layoffs; that she was never given a “golf score,” which Levolor used to determine layoffs; that Levolor based its decision in part on Kern’s lack of seniority, although seniority was not a factor in ranking other employees; and that Levolor did not consider transferring Kern to a different department, although other employees were transferred rather than laid off. This evidence was sufficient to support a verdict in favor of Kern. B. Good Faith and Fair Dealing Under California law, every contract includes a covenant of good faith and fair dealing, which requires that neither party “do anything which will deprive the other of the benefits of the agreement.” Seaman’s Direct Buying Service, Inc. v. Standard Oil Co., 36 Cal.3d 752, 206 Cal.Rptr. 354, 362, 686 P.2d 1158, 1166 (1984). The covenant requires cooperation in carrying out the contract and honesty in creating or settling disputes. See 1 Witkin, Summary of California Law 674-76 (9th ed. 1987). In the employment setting, a breach can be shown “where the employee can establish lengthy satisfactory service and that the employer acted contrary to its own policies in discharging the employee.” See Sorosky v. Burroughs Corp., 826 F.2d 794, 802 (9th Cir.1987) (construing California law). There was sufficient evidence to allow this issue to be decided by the jury. C. Age Discrimination Levolor argues that Kern failed to establish a prima facie case of age discrimination. It appears from our review of the transcript that no, or virtually no, evidence was presented tending to show that Levo-lor treated Kern as it did because of her age. We do not, however, deem it necessary to resolve this question because the verdict is supported by the contractual claims discussed above. D. General Verdict As a general rule, “a general jury verdict will be upheld only if there is substantial evidence to support each and every theory of liability submitted to the jury.” Syufy Enterprises v. American Multicinema, Inc., 793 F.2d 990, 1001 (9th Cir.1986); see also Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19, 29-30, 82 S.Ct. 1130, 1135-36, 8 L.Ed.2d 305 (1962). However, we may construe a general verdict as attributable to one of several theories if it was supported by substantial evidence and was submitted to the jury free from error. Traver v. Meshriy, 627 F.2d 934, 938 (9th Cir.1980). The factors we must consider in deciding whether to exercise this discretion are: (1) the potential for confusion of the jury; (2) whether the losing party’s defenses apply to the count upon which the verdict is being sustained; (3) the strength of the evidence supporting the count relied upon to sustain the verdict; and (4) the extent to which the same disputed issues of fact apply to the various legal theories. Id. at 938-39. We find this an appropriate case for the exercise of discretion. There was little potential for confusion. Kern’s counsel stressed the contractual bases for recovery in her closing argument. Age discrimination was offered not as an independent ground for recovery, but only as a possible explanation for Levolor’s disparate treatment of Kern. [R.T. 7/29 at 146-48.] The same factual predicate—that Kern was, without adequate explanation treated differently from other employees—necessary to find age discrimination would support a verdict in favor of Kern on her contractual theories. See Traver, 627 F.2d at 939 (no need to reach sufficiency of evidence for weak section 1983 claim where that claim “all but derivative” of state tort claims); see also Roberts v. College of the Desert, 870 F.2d 1411, 1417 (9th Cir.1988) (no need to reach sufficiency of evidence on discrimination theory in employment dispute where there was sufficient evidence of due process violation). Levolor’s defenses were the same for both the contractual and age discrimination claims: it argued that Kern was treated in accordance with company policy and was discharged for a legitimate business reason. The jury could not have found in favor of Kern under any of her theories without rejecting these defenses. The evidence supporting the contractual theories of recovery, while not overwhelming, was strong. The facts used by Kern to support her theories of recovery were largely identical, except that her claim of age discrimination required additional evidence to support Kern’s theory of Levolor’s motive. The same facts that bore on the circumstances of her discharge were relevant to each of her theories. II. WEIGHT OF THE EVIDENCE Levolor argues that, even if JNOV would not have been proper, the district court should at least have ordered a new trial on the ground that the verdicts on liability and damages were against the manifest weight of the evidence. This is a discretionary action on the part of the district court. William Inalis, 668 F.2d at 1027. Levolor’s argument that the district court abused its discretion in denying it a new trial on the issue of liability hinges, of course, on the same evidentiary arguments discussed above. On Kern’s contractual claims, refusal to grant a new trial was not an abuse of discretion. The contractual claims being adequate to support the judgment, the age discrimination claims need not be discussed. Levolor makes a distinct challenge to the amount of damages. The jury originally returned a verdict in favor of Kern for $237,000. The district court considered this amount “outrageous” and “weird”, E.R. 32, and indicated its intent to grant a new trial if Kern refused to accept a remit-titur. Id. The court initially indicated that it felt $60,000 would be an adequate amount. Id. After further consideration, the court proposed a remittitur resulting in a judgment of $137,000. [R.T. 10/01 at 10-13.] Kern accepted the remittitur. The court did not abuse its discretion in calculating this remittitur. There was evidence that Kern’s total economic damages through age 65, when she planned to retire, were $110,000. [Exhibit 121]. There was evidence that Kern incurred $2,500 in consequential expenses moving to Ohio. It appears that the district court erroneously included as consequential damages $6,000 in costs incurred by Kern in traveling back to California to litigate her claim. [R.T. 10/01 at 11-12.] We also doubt that damages for stress could properly be awarded as consequential damages in this case. However, we affirm the remittitur on the ground that the expert testimony on future economic conditions was necessarily speculative. The expert himself testified his calculation was conservative. [R.T. 7/27 at 88.] Therefore, it was not reversible error to award Kern somewhat more than the dollar figure the expert suggested. See Chalmers v. City of Los Angeles, 762 F.2d 753, 760 (9th Cir.1985) (if damage award is supportable, it will not be disturbed on appeal unless grossly excessive, monstrous, or shocking to the conscience.) III. MITIGATION OF DAMAGES Levolor argues that Kern failed to mitigate her damages. Under California law, an employer’s liability is reduced by the amount the employee earned or with reasonable diligence could have earned after her discharge. The employer bears the burden of proving that “comparable, or substantially similar,” employment was available to the employee; the employee is not required to prove mitigation. Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176, 181-82, 89 Cal.Rptr. 737, 740, 474 P.2d 689, 692 (1970). Levolor failed to carry its burden. By contrast, Kern testified that she looked for work regularly for six months, until physical and emotional disorders prevented further searching. [R.T. 6/30 at 27-28; R.T. 7/27/87 at 112-13.] Although Levolor asserts that it offered Kern her job back, it did not in fact do so: it merely indicated its desire to discuss a job opening with her. [S.E.R. 79.] This invitation came after Kern had moved to Ohio. The court did not clearly err in concluding that Levolor had failed to prove that Kern did not adequately mitigate her damages. IV. JUDICIAL MISCONDUCT The district court judge made various comments which Levolor asserts damaged its case. These were as follows: 1. First, in a colloquy over an evidentia-ry motion, discussing the relevance of Le-volor’s evidence that other individuals over 50 years of age were not laid off, to disprove age discrimination, the following exchange took place: The Court: Sure. They got preferential treatment somehow. Mr. Brown [for Levolor]: So there’s no age discrimination. The Court: There is age discrimination. They discriminated against this lady and didn’t layoff the others. Mr. Brown: Your Honor, I differ on that. The Court: I know you do. But you differ on everything. You know, you come from Chicago, don’t you? Mr. Brown: I do. The Court: Yeah, contentious Chicago. Come on. [E.R. 26.] This exchange occurred in front of the jury. 2. Levolor also objects to the district court’s comments during Levolor’s examination of a witness: Q: Could you tell us what that figure [rate of production] means? A: She worked 143 days for an hour more and I took the 143 days and divided the number of hours that she had written that she had worked into that 143. And then it was multiplied by 7.5, which is the hours that she had worked, which is the hours for the whole day, and it came out to 28.8 wands per day. The Court: What on earth has that got— that’s time, not rate of production. Mr. Brown: Let me follow up because I think— The Court: So idiotic. Mr. Brown: Leslie just forgot to tell us one thing. The Court: I’m getting sick of it. If you don’t start getting on something else I may sanction you by issuing a judgment in the favor of the plaintiff. I’m getting sick of it. [E.R. 23]. 3.Finally, during examination of a witness concerning the meaning of “termination” and “layoff,” the court instructed the jury that the terms “layoff”, “discharge”, “quitting”, and “termination” all have different meanings, as a matter of law. [E.R. 16, 17, 24.] Levolor objected. [E.R. 16.] Levolor argues that this instruction was crucial because Kern argued that her “termination” by Levolor was key evidence of Levolor’s breach. However, any possible prejudice to Levolor was offset by the court’s instruction to the jury that “[Kern], was not terminated for layoff. She was laid off.” [E.R. 17.] Levolor does not allege that it moved for a mistrial based on Judge Hauk’s misconduct. Levolor did, however, move for a new trial. Levolor objected to the court’s remarks concerning age discrimination and the “layoff/termination” distinction. Litigants are entitled to a judge who is detached, fair and impartial. Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 531 (9th Cir.1986). The standard for reversal on the basis of judicial misconduct in a civil trial is, nevertheless, quite high. Comments by the judge require reversal if the judge expresses his opinion on an ultimate issue of fact in front of the jury or argues for one of the parties. Id. Reversal will not be required where the judge emphasizes evidence; nor where the judge expresses skepticism, provided that the witness has an opportunity to respond. Id. Cutting comments to counsel, particularly those relating to skill rather than good faith or integrity, will not generally mandate reversal. Id. The difference between comments which mandate reversal and comments which do not is demonstrated by Ward v. Westland Plastics, Inc., 651 F.2d 1266, 1271 (9th Cir.1980) and Maheu v. Hughes Tool Co., 569 F.2d 459, 469-71 (9th Cir.1977). In Maheu, plaintiff was suing for libel. Thus, his character was hotly in issue. At the end of the jury instructions, the judge discussed the plaintiff’s credibility and character in a manner which we deemed a judicial comment on character, virtually directing a verdict for plaintiff despite considerable impugning evidence. The judge’s comments were found to be reversible error. In Ward, the judge demeaned the quality and relevance of much of plaintiff’s evidence and suggested nondiscriminatory motivations the defendant might have had: The judge seldom spoke directly to ultimate issues, and cautioned the jury that his remarks were not evidence. We declined to reverse. In reaching our conclusion we did not, however, focus primarily on the nature of the remarks: the most important factor in our decision to affirm was our perception that plaintiff’s case was too weak for the comments to have prejudiced it. Even taking all of the district court’s comments together, we conclude there was no reversible error in this case. Levolor has failed to explain how the court’s comments about “layoff” and “termination” prejudiced its case. The judge’s occasional commentary on Chicago lawyers and on the flaws in Levolor’s witnesses’ testimony did not go to the merits. Upon our review of the trial as a whole, we cannot say that the district court judge appeared to favor one side over the other by his comments. The judge’s comments about age discrimination, taken out of context, could be misunderstood. However, the context of the comments makes it clear that the judge was simply explaining his evidentiary ruling: that evidence that other workers had not been laid off did not mean that Kern was not discriminated against. In light of the adequate evidence to support the verdict on the contractual theory, we conclude that Levolor was not prejudiced by this remark. V. EVIDENTIARY ERROR Evidentiary rulings are reviewed for abuse of discretion. Coursen v. A.H. Robins, 764 F.2d 1329, 1333 (9th Cir.1984). Error mandates reversal only if it probably affected the verdict. Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir.1983). Levolor assigns error to two rulings. First, it argues that the court improperly excluded as irrelevant testimony from a Levolor employee who had trained Kern. That employee would have testified about the skills required for other jobs at Levolor. However, the witness had already testified that, in her opinion, Kern was not qualified for any other job at Levolor. [E.R. 29]. The court was within its discretion in determining that nothing more would be gained from a detailed description of numerous other jobs at Levolor. Levolor also challenges the exclusion of testimony from its Corporate Manager of Personnel. This testimony, according to Levolor, would have explained the “profit sharing letter” Kern received, which contained the word “terminated”. [R.T. 7/29 at 88-89.] This testimony was properly excluded on grounds of competency. Levolor’s witness did not hold a position with Levolor until after the relevant time period, and therefore lacked personal knowledge concerning the interpretation of a letter Kern received before the witness became affiliated with the company. VI. JURY INSTRUCTIONS A district court’s formulation of jury instructions is reviewed for an abuse of discretion, so long as its statement of the law is correct. United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.1985). Error will not require reversal if it is more probably than not harmless. Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir.1983). Levolor asserts that the district court should have given its proposed instruction on mitigation of damages, which stated that Kern would not be entitled to damages after failure to accept a substantially equivalent job from Levolor or after she dropped out of the job market. [E.R. 35 (proposed instruction); 14-15 (rejection of proposed instruction)]. Instead, the court gave the following instruction: An employee who was damaged as a result of a breach of an employment contract by the employer, has a duty to take steps to minimize the loss by making a reasonable effort to find comparable employment. If the employee through reasonable efforts could have found comparable employment, any amount that the employee could reasonably have earned by obtaining comparable employment through reasonable efforts shall be deducted from the amount of damages awarded to employee. [S.E.R. 131]. This is a correct statement of California law. See Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176, 89 Cal.Rptr. 737, 740, 474 P.2d 689, 692 (1970). There was no error in giving the instruction. Levolor’s proposed instruction, by contrast, was misleading because there was no evidence that Levolor had actually offered Kern her job back. CONCLUSION There was substantial evidence to support the verdict and judgment on Kern’s contractual claims. The award of damages was not clearly erroneous. Comments by the district court judge were not prejudicial to Levolor. The evidentiary rulings were not error. The jury instruction on mitigation was an accurate statement of the law. The judgment is AFFIRMED. . The dissent attacks these decisions as contrary to the legislative will. However, it is not the prerogative of this court to ignore or overrule decisions of the California courts interpreting California statutes. The majority accordingly declines to address the dissent's argument that these precedents were wrongly decided. We do note, however, that the predictability of legal outcomes is hardly thrown in doubt by the majority decision, as the dissent suggests. The legal rules relied upon by the majority in this case are readily ascertainable by any competent attorney performing adequate research. "Adequate research” necessarily entails inquiring into how a relevant statute has been interpreted by the courts, as well as determining whether common law rules supplement statutory provisions. . The dissent attacks the Traver decision as contrary to century-old Supreme Court authority. We disagree, but even if true it is not for this panel to decide. The dissent would have us overturn not only decisions of the Supreme Court of California but of our own court as well. We decline the invitation. . Contrary to the dissent’s characterization of our holding, we do not approve damage calculations that are clearly erroneous. Levolor did not demonstrate clear error in the economic expert's calculations. Although the district court did not rely entirely on permissible considerations, we may affirm the district court on any basis with support in the record. Leidholdt v. L.F.P., Inc., 860 F.2d 890, 895 (9th Cir.1988). . The dissent mistakenly asserts that Levolor’s letter was an “offer” of employment despite the fact the letter used the words, "We have a job opening at this time that [we] would like to discuss with you.” (Emphasis added.) Recognizing the weakness of its position, the dissent argues that the letter imposed a duty on Kern to respond. California law requires only that an employee respond to an offer of employment, not an invitation to discuss employment. Levo-lor’s invitation came after Kern had moved to Ohio after her six month’s fruitless search for employment in California and after Levolor had "terminated” her. Kern had no obligation to return to California for a "discussion” about employment.
KOZINSKI, Circuit Judge, dissenting: “The prophecies of what the courts will do in fact ... are what I mean by the law,” wrote Justice Holmes almost a century ago. O.W. Holmes, The Path of the Law, 10 Harv L Rev 457, 461 (1897). According to Holmes, the business of lawyers is the prediction of when and how the coercive power of the state will affect people’s lives: People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.... ... It is to make the prophecies easier to be remembered and to be understood that the teachings of the decisions of the past are put into general propositions and gathered into text-books, or that statutes are passed in a general form. Id. at 457-58. But lawyers can only give clients reliable advice to the extent courts in fact do as they say. When courts overlook, stretch, riddle with exceptions or ignore legal principles, prediction becomes difficult. Indeed, it is a commonplace among lawyers that even a fool-proof case can be lost once it gets into court. This is such a case. By all rights, Levo-lor Lorentzen should have won before the jury, failing that, been granted a jnov by the district court and, as a last resort, had the verdict summarily reversed on appeal. The majority reaches the contrary conclusion only by ignoring or misconstruing important legal principles and finding factual support for the verdict where there is none. First, the majority disregards the presumption embodied in California Labor Code § 2922, which provides that, unless the parties indicate otherwise, an employment for an indefinite term is an employment at will. Section 2922 mandates that, to win at trial, plaintiff-employees must prove that there was an employment contract. Here the plaintiff dragged Levolor into court and presented nothing more than unsubstantiated assertions that there was an implied contract of employment. In response, Le-volor demonstrated that it told its employees in no uncertain terms that it did not intend to create a contract, and that it at all times followed company policies. The majority nonetheless upholds a jury verdict against Levolor for breach of an employment contract. What earthly good then is the statutory presumption? The majority also manages to override sub silentio a procedural rule four times stated by the United States Supreme Court in unequivocal terms and followed just as unequivocally by almost every other circuit. A general verdict that may have been based on any of several theories of liability is normally impossible to dissect. When there is insufficient evidence to support one legal theory, therefore, the entire verdict must be reversed. Purporting to apply a very narrow exception to this rule, the majority finds that in a case where plaintiffs legal theories are closely related, where evidence to support one of the theories is nonexistent, where evidence to support the other theories is exceptionally weak, and where the judge substantially interferes with the jury’s function by expressing his own view on ultimate issues, the evidence is sufficient to support a general verdict of liability. So much for stare decisis. Finally, the majority upholds an excessive damage award by ignoring relevant law on a plaintiffs duty to mitigate. It is hornbook law that a discharged employee has a duty to mitigate damages by seeking other employment through the exercise of reasonable diligence. The measure of recovery must be reduced by any amount the employee has earned, or with reasonable diligence might have earned, since the discharge. Moreover, liability for wrongful discharge ends when an employee is offered her old job back. Here it is uncontro-verted that Ada Kern stopped looking for work shortly after her layoff. It is also uncontroverted that, several months after the layoff, Levolor attempted to offer Kern her job back. In the face of all this, the majority upholds a damage award based on several years of lost wages. Here the court doesn’t rely on exceptions; it simply affirms the district court’s apparent conclusion that Ada Kern had adequately mitigated damages. But are we potted plants? If we’re going to affirm the district court when its actions are plainly contrary to the facts and the law, why bother with appellate review? Admittedly, this is not a very important case; it is a garden variety employment dispute, much like thousands of others litigated in the courts every year. The verdict, $137,000, is hardly astronomical by current standards, and the plaintiff, Ada Kern, surely needs the money much more than the defendant, a large, multi-state corporation. But the simple fact remains that, when the law is fairly applied to the record, Levolor is entitled to keep the money. We have a responsibility to so hold. I. Breach of Contract/Good Faith and Fair Dealing In order to collect from Levolor, Ada Kern must prove that an employment contract existed, that Levolor breached the contract and that she suffered injury as a result. See Otworth v. Southern Pacific Transportation Co., 166 Cal.App.3d 452, 458, 212 Cal.Rptr. 743 (1985). The record contains insufficient evidence to go to the jury on any one of these questions. A. Existence of a Contract 1. The law in California is clear: “An employment, having no specified term, may be terminated at the will of either party on notice to the other.” Cal Labor Code § 2922 (West 1989). The California Supreme Court recently confirmed that section 2922 establishes a presumption of at-will employment if the parties have made no agreement specifying the length of employment or grounds for termination. Foley v. Interactive Data Corp., 47 Cal.3d 654, 677, 254 Cal.Rptr. 211, 765 P.2d 373 (1988). Section 2922 reflects a legislative judgment that employers and employees are not bound to their employment relationship unless they take affirmative steps to provide otherwise. In 1872, California became the first state to create a statutory presumption of at-will employment, with the enactment of the predecessor to section 2922. See Lawrence C. Levine, Judicial Backpedaling: Putting the Brakes on California’s Law of Wrongful Termination, 20 Pacific L.J. 993, 994 & n. 5 (1989). For a century, the California courts applied the law as one might expect: Unless one of the parties could show some express agreement to the contrary, the relationship was deemed terminable at will. See, for example, Union Labor Hospital Association v. Vance Redwood Lumber Company, 158 Cal. 551, 554, 112 P. 886 (1910); Patterson v. Philco Corp., 252 Cal.App.2d 63, 65-66, 60 Cal.Rptr. 110 (1967). See also Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv.L.Rev. 1816, 1825-26 (1980). As of late, without any relevant amendment of the statutory language, the courts have found more and more situations where the presumption of at-will employment has been overcome by a nod, a wink, a smile or a stray comment. See, for example, Pugh v. See’s Candies, Inc., 116 Cal.App.3d 311, 329, 171 Cal.Rptr. 917 (1981); Wayte v. Rollins International, Inc., 169 Cal.App.3d 1, 18, 215 Cal.Rptr. 59 (1985); Robinson v. Hewlett-Packard Corp., 183 Cal.App.3d 1108, 1122-23, 228 Cal.Rptr. 591 (1986); Harlan v. Sohio Petroleum Co., 677 F.Supp. 1021, 1030 (N.D. Cal.1988) (applying California law). What was once a relatively simple inquiry has become the stuff of lengthy trials and burdensome discovery, encompassing everything that ever transpired between the employee and her employer, as well as the employer’s treatment of other employees. Not surprisingly, juries, and judges too, often become confused as to whether there really was anything amounting to an agreement between the parties, and natural sympathies substitute for the missing facts. The net effect is that the statutory presumption of at-will employment has been reduced to a hollow legal fiction, an inconvenience to be endured on the way to a hefty recovery. One can fairly debate the merits of at-will versus for-cause employment. Contrast Richard Epstein, In Defense of the Contract at Will, 51 U.Chi.L.Rev. 947 (1984), with Lawrence E. Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404 (1967). But the judgment is a legislative one; it should be considered, debated and enacted by the branches of government directly accountable to the public. See, for example, Mont.Code Ann. §§ 39-2-201 et seq. (1987); Meech v. Hillhaven West, Inc., — Mont. —, 776 P.2d 488 (1989). Achieving the same result judicially not only short-circuits democratic processes, it imposes substantial collateral costs and uncertainties on everyone involved. Searching for the existence, and divining the terms, of an implied contract is a burdensome, time-consuming and uncertain proposition. The risk of an erroneous determination is greatly magnified, encouraging parties with weak positions — employers as well as employees — to spin the litigation wheel-of-fortune. Rational planning or a reasonable litigation strategy becomes very difficult as no one can tell even remotely how a case will be resolved once it gets into court. The ability to predict outcomes, which lay at the heart of Justice Holmes’s model of the legal profession, is lost as a vocation; the lawyer ceases to be a forecaster and becomes a croupier. 2. The majority’s treatment of Levolor’s claim that Ada Kern was not entitled to recover because she had failed to overcome the statutory presumption of at-will employment well illustrates the problem. Under the current state of California law, the presumption of employment at will can be overcome if one of two conditions is met: (1) the contract was supported by consideration independent of the services to be performed by the employee for his prospective employer; or (2) the parties agreed, expressly or impliedly, that the employee could be terminated only for good cause. Pugh, 116 Cal.App.3d at 326, 171 Cal.Rptr. 917 (1981), quoting Rabago-Alvarez v. Dart Industries, Inc., 55 Cal.App.3d 91, 96, 127 Cal.Rptr. 222 (1976). Ada Kern does not claim that there was independent consideration for an employment contract or that she had an express agreement with anyone at Levolor that she would be discharged only for good cause dr in accordance with certain procedures. Thus, Kern was required to prove that there was an implied contract between herself and Levo-lor. The majority notes, citing Foley, that evidence of such a contract may come from many sources, including an employment manual, the employer’s personnel practices and policies, and longevity of service. From this hefty record, Ada Kern culls only two pieces of evidence from which the jury might have divined a contract: (1) Levolor’s policy, described in its Employee Handbook, of laying off AAA employees last; and (2) the procedure adopted by Le-volor in implementing the February 1985 workforce reduction by which the company laid off employees based on ratings for grade, production and attendance, irrespective of seniority — the so-called “golf-score” analysis. These items sound good, and I can certainly understand how the majority comes to rely on them; after all, there must be something there or else the lawyers wouldn’t be spending so much time talking about them. The fact is, however, when one examines the record carefully, neither item amounts to an agreement within the Foley/Pugh definition, so as to rebut the statutory presumption of at-will employment. a. The Handbook In language even a second-grader could understand, the first page of the Levolor Employee Handbook states: “this is not a contract of employment and policies may be modified by the Company at any time.” Appellee’s Excerpts of the Clerk's Record (AER) at 5. It is the most fundamental principle of contract law that there can be no legally enforceable obligation without a promise, a commitment to future behavior. It is difficult to imagine a clearer statement that one does not intend to be legally bound by the contents of a written document than the words Levolor used here. Yet the majority relies on the manual as evidence of a contract. Majority op. at 776. I fail to see how an employment manual that states on its face that it is not a legally enforceable agreement, one which provides that it is subject to change by the employer at any time, can serve as any type of proof that the parties had a contract, implied or otherwise. Cases from both California and this court recognize that an implied agreement is not enforceable where there is an explicit agreement to the contrary. See, for example, Shapiro v. Wells Fargo Realty Advisors, 152 Cal.App.3d 467, 199 Cal.Rptr. 613, 622 (1984); Wal-Noon Corp. v. Hill, 45 Cal.App.3d 605, 613, 119 Cal.Rptr. 646 (1975); Gianaculas v. Trans World Airlines, Inc., 761 F.2d 1391, 1394 (9th Cir. 1985) (applying California law). In Shapiro, the California Court of Appeal held that an explicit disclaimer in a stock option agreement that reserved the employer’s right to discharge at will could not be overridden by any implied-in-fact agreement to the contrary. 199 Cal.Rptr. at 615-16, 622. Accord, Gianaculas, 761 F.2d at 1394. Levolor’s Employee Handbook states explicitly that Levolor is not bound by any of the policies outlined therein. Nonetheless, Ada Kern would have the court find an implied contract in this document. But she can’t have it both ways: If Kern wants to rely on the Handbook, she must accept the express limitations contained therein. Under California law, a document that states explicitly that it is not a contract cannot be evidence of an implied contract. b. The “golf scores” Nor does the second item of evidence— the golf scores — provide the slightest support for finding a contractual obligation between Levolor and Ada Kern. Ada Kern was a good employee. But in the workplace, as elsewhere, everything is relative. Steven Smithling, Kern’s shift supervisor at Levolor, testified without contradiction that Ada Kern was laid off because the company was experiencing a downturn in business and needed the production of only two full-time wandmakers, rather than the three they were then employing. Reporter’s Transcript (RT) 7/28 at 44. All three wandmakers had AAA ratings, the highest the company gave, and excellent attendance records. Id. at 45. Unfortunately, Ada Kern’s production was slightly lower than that of the other two wandmakers, and she was the least senior. Id. In preparation for the February 1985 layoff decisions, Levolor carefully recorded relevant employee data on a series of tally sheets. AER at 55-66. The tally sheets contained two sets of scores. One was a series of absolute measures, reflecting the employee's grade (AAA, A, B, etc.), average production, and a measure of attendance. All employees eligible for layoff, including Kern, received these ratings. Id. at 64. Many of the tally sheets also contained a set of “golf scores,” in which the absolute measures were converted to a relative scale; the better the employee, the lower the score, hence the analogy to golf scores. It was Steven Smithling’s uncon-troverted testimony that golf scores were used only to compare employees in the same job classification in the same shift. RT 7/28 at 45-46. They were not used to compare employees on different shifts, or employees on the same shift doing different jobs. There was nothing magic about the golf scores; they were simply a mathematical summary of various employees’ work performance, used to make layoff decisions among employees who were otherwise similarly situated. Because Ada Kern was the only wandmaker on her shift and there was no one with whom to compare her, no golf scores were prepared for her. Based on this evidence, the majority concludes that a jury could reasonably find that Levolor had a contractual obligation to prepare golf scores for Ada Kern. I don’t get it. Levolor demonstrated by uncontro-verted evidence that the golf scores were inapplicable to Ada Kern. How could a rational jury conclude from this that Levo-lor and Ada Kern had an implied contract that she would receive such scores? The majority relies on the fact that Levo-lor calculated golf scores for two other employees who were the only ones on their shift in their job classification. Majority op. at 774. But these were the exceptions, and there is no indication that the golf scores, once computed, played any part in the decision whether to lay them off. The fact is, most employees in Ada Kern’s position were treated exactly the same: they did not receive golf scores. See AER at 65. Under the majority’s rationale, Ada Kern had an implied contract to be treated different than most of the other employees in her position. This just doesn’t make sense. Equally significant, the record is clear that Ada Kern was not aware of the golf-score system until after her layoff. RT 7/27 at 97. Yet she claims that Levolor breached its contract with her by failing to give her a golf score before laying her off. To show that she had an implied agreement with Levolor that they would give her such a rating, however, Kern must first prove that Levolor management did or said something to her. Pugh, 116 Cal.App.3d at 326, 171 Cal.Rptr. 917. It confuses “implied” with “imaginary” to find that an employer and employee had an agreement over a policy about which the employee had absolutely no knowledge. Where the majority finds an obligation on Levolor’s part to provide golf scores is beyond me. It’s not in the Employee Handbook (even assuming the Handbook could serve as a contract). It’s not in any written agreement. Nor is there any evidence that Ada Kern talked to anybody about the golf scores before her layoff. What we have here is a cheap litigation trick, honed to a fine art by contingency-fee-hungry lawyers: rummage through the opposing party’s files and records until you find something that looks vaguely like your client has been afforded differential treatment, no matter how trivial or irrelevant, and then parade it before the jury as a grave injustice. To say, as the majority does, that a rational jury might find that Ada Kern had a contractual right to have Levolor perform an irrelevant, hypothetical and to her unknown tabulation on the layoff tally sheet, is so contrary to common sense it does not, in my opinion, pass the snicker test. Quite aside from the substantive problems with today’s opinion, one unfortunate consequence is that lawyers will be encouraged to engage in this type of scorched-earth litigation tactic; after all, you never know what triviality might impress a court and jury. This is no doubt welcome news for lawyers, but I doubt it helps the economy or that it is in the long-term interest of employees. B. Breach of Contract Even if Ada Kern could prove that Levo-lor had some contractual obligation to her regarding her layoff, there is no evidence that the company did anything less than what it promised. It is uncontroverted that before the layoff Levolor had three wand-makers, and after the layoff only two. Kern had the least seniority of the three wandmakers: She had five and a half years seniority at the time of her layoff; Martha Barone had seven years; Gloria. Yanes had eleven and a half years. Levolor’s Employee Handbook states that “seniority is considered ... in the event of a layoff.” AER at 30. It also states that “[o]ur general guideline is that the least senior person will be laid off first, provided that the remaining employees have the skill, ability, knowledge and efficiency to perform the required work.” Id. at 32. Levolor’s decision to lay off Ada Kern rather than her more senior colleagues is obviously consistent with this guideline. But seniority is not the only factor mentioned in the Handbook. Ada Kern points particularly to the following passage: “[E]mployees who are classified as ‘AA’ & ‘AAA’ workers will normally be laid off from their job last, even though they may have less seniority than other employees in the same classification.” Id. She claims that because she was a AAA worker, she should have been laid off last, regardless of seniority. The problem with this argument is that Martha Barone and Gloria Vanes were not merely more senior than Ada Kern, but they too had AAA ratings. RT 7/28 at 45. The Handbook provision on which Kern relies may sound compelling, but it does her absolutely no good. Nor does the Handbook support what appears to be her related argument that Levolor had the responsibility to first lay off lower-rated employees in other job classifications, perhaps Ivan Ortiz, a mechanic, or Jaber Salk, a janitor. See AER at 65. The quoted language is, by its terms, applicable only to “employees in the same classification.” In a factory where workers perform specialized functions, this is the only sensible system; it is the system Levolor adopted in its Employee Handbook and which it scrupulously followed in making its February 1985 layoff decisions. Moreover, if the Employee Handbook is a contract, it gives rights to many parties; employees other than Kern were entitled to rely on the guarantees that they would not be bumped by a higher-rated employee in another classification. Had Levolor laid off Ortiz, Salk or some other similarly situated employee to make room for Kern, the company would surely have found itself in litigation with that employee. Having alleged that Levolor failed to follow its own policies by considering seniority when making layoff decisions, Ada Kern turns around and accuses Levolor of failing to follow its own policies by not considering seniority in calling workers back from layoff. In particular, she points to temporary workers hired during the summer of 1985, while she was on layoff, who spent some time cutting wands. Assuming again that Levolor had any obligation to bring back Kern before it hired temporary workers, the uncontroverted evidence showed that Levolor’s actions fully complied with its stated policies. Steven Smithling testified that the temporary workers would only occasionally make wands, and that Levolor did not require three full-time wandmakers during that summer, RT 7/28 at 59, 66; there was no evidence to the contrary. Moreover, the Employee Handbook states: “Qualified employees who are recalled from layoff will be called back to work to their job classification in the reverse order that they were laid off.” AER at 32 (emphasis added). Ada Kern was the first and only wandmaker laid off; no one was hired or recalled before her to be a full-time wandmaker. Ada Kern’s relative seniority and production level indicate that her layoff and recall were in accordance with the procedures described in the Levolor Employee Handbook. At the same time, there is absolutely no evidence of any other mechanism or motivation behind her layoff. The only explanation Kern presented for her discharge is age discrimination, RT 7/29 at 148, and there is no evidence to support this theory. The majority acknowledges that “no, or virtually no, evidence was presented tending to show that Levolor treated Kern as it did because of her age.” Majority op. at 777. The subordinate clause is superfluous. It is uncontroverted that Ada Kern, at 59, was not the oldest of the three wandmakers; the two retained wandmak-ers were also protected by California’s age discrimination statute — Martha Barone was 62 and Gloria Vanes was 52. RT 7/29 at 49-50. Ada Kern presented no evidence that anyone at Levolor ever said or did anything to indicate they believed she was too old for the job. Kern presented no evidence that Levolor ever discriminated against any of its employees because of their age. She testified that she had no reason to believe that her supervisors had anything against her at all. Ada Kern’s lawyer speculated that age discrimination might have been Levolor’s hidden motive for mistreating her client. RT 7/29 at 148. Even by way of argument, she offered no other sinister motive for Levolor’s action. In the face of evidence that her layoff was consistent with Levolor’s stated policies, Ada Kern presented no evidence to support her only alternative explanation for the discharge. These facts cannot support a jury verdict of breach of contract. C. Injury As we are all taught during our first year of law school, in order to collect damages on a contract claim, the plaintiff must prove that she suffered injury caused by defendant’s breach. See California Civil Code § 3300 (1970); Otworth v. Southern Pacific Transportation Co., 166 Cal.App.3d 452, 458, 212 Cal.Rptr. 743 (1985); Patent Scaffolding Co. v. William Simpson Constr. Co., 256 Cal.App.2d 506, 511, 64 Cal.Rptr. 187 (1967). The only relevant evidence here demonstrates that, had Levolor done every little thing Ada Kern claims it should have, she would still have been laid off. Where, then, is her beef? We have already seen that Levolor followed precisely the terms of its Employee Handbook. Thus, even if the Handbook was a contract, there could have been no injury because there was no breach. Kern did show that she was not given golf scores. But, assuming Levolor had a contractual duty to prepare golf scores, the company’s failure to do so cannot support a damage award if there is no causal connection to Kern’s claimed injuries. The record shows without contradiction that the golf scores were merely a mechanical tabulation of each employee’s performance ratings, all of which were in fact prepared for Kern as for every other employee. How, then, could a jury reasonably conclude that Ada Kern was injured by Levolor’s failure to prepare a golf score for her? The uncon-troverted testimony of Levolor officials was that preparation of golf scores for Kern would have made no difference whatsoever. RT 7/28 at 101-02. The boiling point of water is the same whether expressed as 212° Fahrenheit, 100° Celsius or 373° Kelvin. Applying a mechanical formula for converting Ada Kern’s performance ratings into golf scores cannot affect her relative position in the layoff queue vis-a-vis other employees; the fact remains, she was still the least productive and most junior of the three wandmakers. The idea that Kern suffered injury because the company failed to perform some routine and irrelevant computations on her tally sheet, without any consideration of what would have happened had they done so, makes no sense to me. Even if the jury might have drawn some sinister inference from the absence of the calculation, plaintiff still faces the age-old principle that she can only recover if she can show injury. She has shown none. D. Good Faith and Fair Dealing There is really not much to say here. There is insufficient evidence to support a finding that a contract existed, or that Le-volor breached it, or that any such breach caused injury to Ada Kern. It would defy logic to then hold that there was sufficient evidence to find that Levolor might have done something to “injure the right of [Ada Kern] to receive the benefits of the agreement.” Foley, 47 Cal.3d at 684, 254 Cal.Rptr. 211, 765 P.2d 373, quoting Comunale v. Traders & General Ins. Co., 50 Cal.2d 654, 658, 328 P.2d 198 (1958). See also Foley, 47 Cal.3d at 698 n. 39, 254 Cal.Rptr. 211, 765 P.2d 373 (implied covenant of good faith and fair dealing cannot override employment at will). * * * * !}• * The evidence relating to Ada Kern’s contract and good faith claims is not of the sort about which reasonable minds might differ. Even if the jury discounted as incredible the testimony of all of Levolor’s witnesses, and gave Ada Kern every benefit of the doubt, her case amounts to nothing more than vague allegations about procedures Levolor might have followed but didn’t, with no showing that the company was obliged to follow those procedures, or that following them would have made any difference, Ada Kern’s only proffered explanation for her discharge was age discrimination, which she left completely unsupported. Ada Kern was a good worker with five and a half years seniority who was laid off without warning. She was justifiably upset and no doubt felt betrayed. Such feelings, standing alone, are not legally com-pensable. II. Multiple Theories and a General Verdict Materializing from the other of Ada Kern’s allegations is a single explanation for Levolor’s supposed misconduct — age discrimination: Levolor was unfair to Ms. Kern just by its acts alone. But also, it didn’t follow its own policy regarding layoff, regarding recall, regarding the benefits of seniority. It did none of those things. They followed nothing that they had given her as an assurance, as a promise that she could depend on. Plaintiff believes that her age may have been the reason. There’s no other reason. There’s absolutely no other reason she shouldn’t have been back. Plaintiff’s Closing Argument, RT 7/29 at 148 (emphasis added). Ada Kern brought claims of breach of contract, breach of the covenant of good faith and fair dealing, and age discrimination; but her only coherent theory of Levolor’s actions was that the company deliberately discharged her and refused to bring her back because it thought she was too old. The district court apparently saw Ada Kern’s case the same way: Mr. Brown [Levolor’s attorney]: Your Honor, she has three counts in here and that of course means more instructions. That’s one of the problems. The Court: Three counts? You’re down to the one count, breach of contract or breach of implied warranty, and what’s the third one? Ms. MacMillin [Ada Kern’s attorney]: Age discrimination. The Court: Age discrimination. But they’re all the same. That’s all the same ball of wax in federal court. I can join them all together if I want to. We have quite a bit of power over here that you may not have in the state. I told the jury: Breach of contract or breach of implied warranty because of age discrimination. They figured she was too o