Ada S. Kern v. Levolor Lorentzen, Inc.

Hоwever, KOZINSKI, never informed about Kern was Before FLETCHER possibility meetings or about LEGGE,* these Judges, and District Circuit 97], 7/27 at layoff. [R.T. Judge. “golf Employees were rated with FLETCHER, Judge: Circuit laid off. who would be score” to determine (“Levolor”) Lorentzen, ap- Inc. Levolor was based on 7/28 at This score 41]. [R.T. in judgment favor peals from adverse rating, production and attend- Kern. Kern ob- plaintiff-appellee Ada employees ance. 55-66]. [S.E.R. against Levolor on verdict tained department in each were highest scores termination, wrongful breach claims of 55; R.T. 7/28 to be laid off first. [S.E.R. good faith and fair implied covenant of not rated. 7/28 at Kern was [R.T. 45-46]. age discrimination. Kern’s dealing, and that Kern was Levolor contends at 45]. law; juris- all arise under California claims she was the given golf score because not diversity. ar- on Levolor diction is based department on the only member of her (1) the grounds However, for reversal: gues several Levolor did third shift. [Id.] grant judgment it only district court’s refusal to employees who were the rate other verdict; (2) trial, the district notwithstanding the department. At Levo- people in their to order a new trial on disparity court’s failure in treat- explain lor could damages and were ground Although that the verdict Levolor at ment. 103-04]. [Id. weight the evi- against the manifest compare golf scores with- purported to dence; (3) misconduct; (4) eviden- judicial 47-48], trans- departments, in at it did [Id. error; (5) in in- and error tiary job classifications people between fer two ar- We find none of Levolor’s layoff. structions. during the at [Id. 48]. judg- affirm the guments meritorious and express, policy of Levolor had an written court. ment of the district employees AAA-rated last. laying off Three other AAA-rated em- [S.E.R. 32]. FACTS in Kern were laid off Feb- ployees besides employees 70], These three ruary. to make employed Levolor was [S.E.R. Kern, voluntarily [Id.]; were laid off 7/27 at all wands for window blinds. [R.T. contrast, opportunity to given employment in was began her She 37]. 4, 1985, voluntary layoff. 7/27 at February take discharged on [R.T. 97]. was seniority the least Although at Kern had years old. 7/27 when she was 59 [R.T. wandmakers, Levolor’s own Em- the three employed three wandmak- Levolor 40]. seniority ployee Handbook stated that ers, at one on each shift. 7/28 35]. [R.T. lay- factor at would not be a determinative the third shift. 7/27 Kern worked [R.T. addition, In tri- decisions. were over 40 off All three wandmakers [S.E.R. 32]. 37]. decisions, layoff indicated that All had re- al exhibits years 7/29 at old. 50]. [R.T. fact, solely the basis of rating were made highest possible employee ceived the “AA”, etc.), (“AAA”, 39; grade (“AAA”). employee’s 7/28 at at Levolor [R.T. attendance. 55- three, production, the least Kern had [S.E.R. S.E.R. Of 1]. 66]. seniority. 7/28 at 45]. [R.T. 4, 1985, February Levolor laid off of a early because On late 1984 or including Kern. blinds, employees, Le- several [S.E.R. slowdown in orders for window increased, again orders force. As Levolor’s reduce its work volor decided to 70]. 7/28 began recalling the workers. Management held meet- [R.T. 7/28 at [R.T. 39]. plant By May possibil- at employees to discuss the ings with 53-54]. essentially the same ca- again operating at 41], at Levolor ity layoffs. 7/28 [R.T. 7/29 at layoffs. pacity who as before employees meet with all [R.T. intended to summer, hired During layoff. might subject to this [Id. 42]. 70]. * nia, sitting by designation. Legge, United States Dis- Honorable Charles A. Judge District of Califor- trict for the Northern to a which found The case was tried perform employees temporary several damages of wandmaking in favor of Kern and assessed on third including jobs, odd $237,000. ad- ordered a re- Levolor also district court shift. 59]. [R.T. judgment 74- for Kern in mittitur entered unskilled workers. [S.E.R. vertised $137,000. However, most or all of The district court although the amount of 75]. February attorney’s laid fees. employees off declined to award other [R.T. 5, 1985, Kern was not. jurisdic- court had recalled June 10/01 at The district 5]. 70; Before (diversity); 7/28 at 7/29 at we tion under 28 U.S.C. 110]. § [R.T. positive given a rat- had been layоff, jurisdiction under 28 U.S.C. § 59-60], 7/27 at “adaptability”, ing timely filed. Appeal Notice of [R.T. tasks besides performed various primarily requires us to deter- This case at basis. wandmaking on an as-needed to [Id. the evidence sufficient mine whether Nevertheless, to did not offer Levolor support jury’s verdict. review Our 65]. other position some Kern to work in recall limited. narrow and wandmaker. than I. 1985, a letter from Kern received

In June notifying office profit-sharing the Levolor NOTWITHSTANDING JUDGMENT as of “terminated” she had been her that THE VERDICT 4, She tele- February 72]. [S.E.R. defer- status, Jury are due considerable verdicts her Levolor to determine phoned reviewing In the district court’s de- ence. 7/27 layoff. told she was on and was [R.T. JNOV, apply we standard nial of same However, manager nev- plant at 114]. may district court. We reverse as the inquiry about to her responded er written if that the evi- only we find district court at her status. job 114-15]. [Id. inferences, as a dence and its considered Meanwhile, for work but Kern looked light in the most favor- whole and viewed at find 6/30 any. was unable to 28]. [R.T. support nonmoving party, can able to the when she stopped job her search devel- She only one reasonable conclusion—that problem. nervous rash and a oped a skin not- moving party judgment is entitled to 1985, September, In at 7/27 113]. [R.T. The ver- withstanding the adverse verdict. to live to Ohio with husband she moved by sub- supported if dict must be affirmed 7/27 at On their children. with 29]. [R.T. Inglis & Sons William stantial evidence. 1985, 18, Kern a sent brief Levolor October Baking v. ITT Continental Baking Co. opening job had a stating that letter Cir.1982). (9th Co., By her. at with to discuss [S.E.R. 79]. time, already filed a com- Kern Wrongful A. Termination 7/27 at with the plaint EEOC. 115]. [R.T. pro- to that Kern failed Levolor contends employ it intended to admitted that Levolor implied- an that it breached duce evidence cutting entirely piece, an new in Kern argu- This employment contract. in-fact valance”, in addition “vogue called first, argues parts: ment has two old as wandmaker. performing her contract, i.e., could there was no 54], [R.T. second, will; Levolor ar- discharged at be chosen Kern was Levolor asserted that contract, it if there was gues that even had the least seniori- layoff because she was not breached. among the three production ty and lowest wandmakers, layoff was con- and that a Contract 1. Existence of Levolor's contractual obli- sistent provides statute California that Levo- Kern. Kern asserted gations having specified no employment, obligation lay off a contractual “[a]n lor had term, will may terminated at last, that it employees failed AAA-rated other.” Cal. notice to the party on marking either procedures its own follow Nevertheless, judicial of Labor Code was the layoff, § and that she victim estab- courts by California decisions age discrimination. impliedly promised employer’s dence that Levolor had beyond cavil that an lished implied-in-fact fairly course of conduct can create Kern that she would be treated employment, including except contractual terms of would not be laid off accordance discharge not to an a covenant policies Employee in the with the stated except good discharge an cause or procedures applied Handbook employee only under certain conditions. Although equally employees. to all Candies, Inc., Pugh v. See’s See Cal. explicitly states that it “is not a Handbook (1981); Foley 311, 171 App.3d Cal.Rptr. employment,” contract of Kern does not Corp., v. Interactive Data 47 Cal.3d rely exclusively on the Handbook nor ar- 211, 222, 765 P.2d 383-84 gue express that an contract is embodied in implied The existence of such Instead, argued the Handbook. question promises is a of fact for the existed, implied proved part contract Foley, Cаl.Rptr. at to decide. importantly, by by the Handbook but more determining P.2d at 384-85. whether personnel policies practices the actual exist, promises such look to must of Levolor. Id. relationship parties. the entire include, 765 P.2d at 385. Factors 2. Breach Contract to, are not limited the terms of the but manual, employment employer’s per the argues Levolor that even if it had a practices, longevity policies sonnel or the Kern, contract with it was not breached. service, plaintiff’s acts or communications argument tending It bases on evidence employer reflecting the assurances of to show that Kern laid off for the was employment, plain continued and whether legitimate business reason of a reduction in promotions tiff has received consistent or to economic conditions. See due force Id. salary increases. 765 P.2d at Malmstrom v. Kaiser Aluminum and 386.1 Chemical, Cal.App.3d 231 Cal.

Although However, the evidence of an em (1986). Rptr. 820 there was evi ployment overwhelming, contract was not dence that even if Kern was laid off in adequate go to the to to allow issue workforce, order to reduce the Levolor jury. the There was evidence that Levolor in its nevertheless laid off violation of laying policy employ had a off “AAA” express implied promises and to follow cer last; rated; ees that Kern was “AAA” that procedures in tain and hierarchies deter policy rating employ Levolor had a each mining employees which laid off would be deciding layoffs; ee on and that before Especially probative first. was evidence given rating. Kern was not a Trial exhib “AAA” employee that Kern was the layoff that its indicated decisions were time; involuntarily laid off at that that she solely employee’s “grade” the based meetings was not included in to discuss (AAA, A, B, etc.), “average” (productiоn) layoffs; given “golf she that was never (attendance). “points” Seniority score,” which Levolor used to determine factor, a determinative either in the layoffs; that in Levolor based its decision actually ratings made or as indicated part seniority, although on Kern’s lack of Employee the Handbook. ranking seniority was not a factor in other employees; did not consid in The evidence favor of Levolor does not transferring depart er Kern to a different compel upsetting jury’s the verdict. The ment, although employees concluded from the evi- other were could have decision, contrary majority suggests. as the dissent 1. The dissent attacks these decisions as However, upon by legislative legal in this will. it is not the rules relied the to the by any competent ignore readily prerogative to case are ascertainable of this court or overrule interpreting attorney performing adequate "Ade- research. decisions of the California courts necessarily inquiring majority accordingly quate research” entails California statutes. The interpreted argument the into how a relevant statute has been declines to address dissent's courts, determining precedents wrongly We do as well as whether these decided. note, however, legal supplement statutory provi- predictability law rules that the common hardly by the sions. outcomes is thrown in doubt 19, 29-30, 1130, 1135-36, This evi- 370 U.S. 82 S.Ct. than laid off. rather transferred (1962). However, we may 8 L.Ed.2d 305 in support to verdict was sufficient dence construe a verdict attributable favor of Kern. if sup- to one of several theories it was ported by substantial evidence and was Dealing and Fair B. Faith Good free from submitted error. law, every con Under California (9th Meshriy, Traver v. F.2d good faith and tract includes covenant Cir.1980).2 The factors we must consider requires neither which dealing, fair deciding whether exercise this discre- deprive the anything “do which will party (1) are: the potential tion for confusion of agreement.” other of the benefits (2) jury; losing party’s whether the Service, Buying Inc. v. Direct Seaman’s upon defenses apply to count which the Co., 752, 206 Cal. 36 Cal.3d Standard Oil sustained; (3) being strength verdict 354, 362, P.2d Rptr. supporting of the evidence the count relied requires cooperation carry The covenant (4) verdict; upon sustain honesty ing in creat out contract disputed extent which same issues of Witkin, ing settling disputes. See apply legal fact various theories. Id. (9th Summary Law 674-76 of California at 938-39. 1987). setting, a employment ed. In the appropriate We find this an case for can “where breach be shown There was the exercise discretion. little lengthy satisfactory service can establish potential for confusion. Kern’s counsel contrary to employer acted its and that the recovery stressed the contractual bases for employee.” policies discharging own closing argument. Age in her discrimina Burroughs Corp., 826 F.2d Sorosky v. See independent tion was offered not as an (9th Cir.1987)(construing Califor ground only possible recovery, but as a law). to nia There was sufficient evidence disparate explanation for treat Levolor’s jury. to decided allow this issue ment of Kern. 146-48.] [R.T. was, predicate—that Kern same factual Age C. Discrimination adequate explanation without treated dif argues Kern failed to estab- Levolor that ferently employees—necessary from other age prima facie of discrimina- lish a case support age to find discrimination would of appears tion. It from our review in favor of Kern on contractual verdict no, virtually no, transcript evidence or Traver, (no 627 F.2d at 939 theories. See tending to show that Levo- presented of sufficiency need to reach evidence it did because of her lor treated as claim that claim weak section 1983 where not, however, age. deem it neces- We do claims); but of state tort “all derivative” question sary to because the resolve Desert, College see also Roberts of supported by the verdict contractual (9th Cir.1988)(no F.2d need claims discussed above. sufficiency to of on discrimi reach evidence theory employment dispute in where nation D. Verdict General pro due sufficient evidence of there was rule, general jury “a violation). aAs defenses were cess Levolor’s upheld if is sub only age will be there verdict same for both the contractual support every argued each and that Kern stantial evidence to claims: it discrimination liability jury.” company to in theory submitted was treated accordance legitimate policy discharged Syufy Enterprises v. American Multi and was cinema, (9th not have Inc., reason. The could 793 F.2d Cir. business Growers, Kern under 1986); Inc. v. favor of see also found Sunkist defenses. Co., rejecting these theories without Products Winckler & Smith Citrus Supreme as decisions the Traver decision con- overturn 2. The dissent attacks authority. century-old Supreme as trary Court but of our own court California Court of disagree, it is for this but even if true We invitation. decline the well. We have us panel to dissent would decide. The supporting The evidence the contractual The court did not abuse its discretion recovery, theories of while not calculating overwhelm- this remittitur. There was evi- ing, strong. The facts used dence that damages Kern’s total economic support through her theories recovery age planned retire, were when she identical, largely $110,000. except were that her claim of There was [Exhibit 121]. required $2,500 discrimination evidence that Kern additional evi- incurred in con- sequential dence support theory expenses moving Kern’s to Ohio. Levolor’s It appears motive. The that the erroneously same facts that district court bore consequential $6,000 included as damages circumstances of her discharge were rele- vant costs incurred traveling to each of her Kern in theories. back litigate California to her claim. [R.T. 10/01 at We also doubt that dam- 11-12.] II. ages for stress properly could be awarded consequential damages in this case. WEIGHT THE OF EVIDENCE However, we affirm the remittitur on the ground expert that the testimony on future that, argues even if JNOV economic necessarily specu- conditions was would proper, not have been the district expert lative. The himself testified his cal- court should at least have ordered a new culation was conservative. 7/27 at [R.T. trial ground on the the verdicts on Therefore, it was not reversible error 88.] liability damages against to award Kern somewhat more than the weight manifest of the evidence. This is a figure dollar expert suggested. See discretionary part action on the of the dis City Chalmers v. Angeles, Los Inalis, trict court. William 668 F.2d at (9th Cir.1985)(if damage award is supportable, it will not be disturbed on argument Levolor’s the district appeal excessive, grossly unless mon- court abused denying its discretion in it a strous, shocking conscience.)3 to the new trial on the liability hinges, issue of course, on the evidentiary arguments same III. discussed above. On Kern’s contractual claims, grant refusal to a new trial was not MITIGATION OF DAMAGES an abuse of discretion. The contractual argues Levolor that Kern failed being adequate support claims judg- mitigate damages. Under California ment, age discrimination claims need law, an employer’s liability by is reduced not be discussed. employee the amount the earned or with Levolor makes a distinct challenge to the diligence reasonable could have earned af damages. amount of jury The originally discharge. ter her The employer bears the returnеd a verdict in favor of Kern for proving burden of “comparable, that $237,000. The district court considered similar,” substantially employment was this “outrageous” “weird”, amount and employee; available to the E.R. and indicated grant its intent to required prove not mitigation. Parker new trial if Kern accept refused to a remit- v. Twentieth Century-Fox Corp., Film titur. Id. The court initially 176, 181-82, indicated that Cal.3d Cal.Rptr. 737, 740, $60,000 it felt would adequate be an 474 P.2d Levolor failed to amount. consideration, Id. After further carry contrast, By its burden. Kern testi proposed court resulting a remittitur in fied that she looked for regularly work $137,000. a judgment of months, 10/01 at physical six until and [R.T. emotional accepted Kern the remittitur. prevented 10-13.] disorders further searching. Contrary to the dissent’s rely entirely permissible characterization of court did not on con- holding, our approve damage we do siderations, not calcula- may we affirm the district court on clearly tions that are erroneous. did Levolor support basis with in the record. Leidholdt not demonstrate clear error in the economic L.F.P., Inc., (9th Cir.1988). expert's Although calculations. the district 27-28; days A: She worked 143 for an hour R.T. at 112- 7/27/87 [R.T. days more I took the 143 and it divided that of- Although Levolor asserts 13.] of hours that she had written the number back, did in fact it fered she had worked into that 143. that And its desire to merely so: it indicated do 7.5, multiplied then it which is her. job opening discuss [S.E.R. worked, that she which is hours after Kern had invitation came This 79.] day, it hours the whole came out clearly The court did not moved to Ohio.4 per day. 28.8 wands concluding Levolor had failed to that err got— has The Court: What on earth that adequately miti- Kern did not prove that time, not of production. that’s rate damages. gate her up Mr. Let me because I Brown: follow think—

IV. So idiotic. Court: JUDICIAL MISCONDUCT just forgot Mr. to tell Brown: Leslie us thing. one judge court made vari The district getting you The Court: I’m of it. If sick dam comments which Levolor asserts ous getting something else dоn’t start I as follows: aged its case. These were may you by issuing judgment sanction First, colloquy in a over an evidentia- plaintiff. in the I’m getting favor motion, discussing the relevance Le- ry sick it. that other individuals over volor’s evidence [E.R. 23]. off, laid years age were not dis- during 3.Finally, examination of a wit- discrimination, following age ex- prove concerning meaning ness of “termi- change place: took “layoff,” the nation” and court instructed got preferential They Sure. Court: “layoff”, the terms “dis- treatment somehow. charge”, all “quitting”, “termination” So there’s no Mr. Brown [for Levolor]: meanings, as a matter of have different age discrimination. 16, 17, objected. Levolor law. [E.R. 24.] discrimination. The Court: There argues that this instruc- [E.R. 16.] against lady discriminated They argued tion was crucial because layoff the others. didn’t key evi- her “termination” Levolor was Honor, I differ on that. Mr. Brown: Your However, any dence of Levolor’s breach. you you I do. But The Court: know possible prejudice to Levolor was offset know, you everything. You differ on the court’s instruction to Chicago, you? don’t come from “[Kern], layoff. terminated off.” She was laid Mr. I do. [E.R. 17.] Brown: Yeah, Chicago. contentious Court: allege does not that moved for Levolor Come on. Judge a Hauk’s miscon- mistrial based however, did, for move a duct. Levolor exchange in front This occurred 26.] [E.R. objected to the court’s new trial. Levolor jury. concerning age remarks ‍‌​‌​‌‌​​​‌‌‌‌​‌‌‌‌​‌​​‌‌​​‌​​‌​​​​‌​‌‌‌​‌‌​‌‌​‌​‍discrimination objects to 2. Levolor also the district “layoff/termination” distinction. during exami- Levolor’s court’s comments nation of a witness: Litigants judge are entitled to a detached, impartial. figure fair and Shad

Q: you what that who is Could tell us Inc., 799 F.2d Reynolds, means? Dean Witter production] [rate employment, respond mistakenly to an asserts that Levolor’s 4. The dissent offer employment. Levo- despite to discuss employment not invitation an “offer” of letter was words, had moved to job аfter Kern invitation came "We have lor’s fact letter used search for after her six month’s fruitless opening like to Ohio employment [we] at this time that would added.) Recog- after Levolor had you.” (Emphasis in California and discuss with nizing obligation no position, her. Kern had the dissent "terminated” the weakness its for a "discussion” about imposed duty to California argues on Kern to return the letter employment. requires only respond. that an California law (9th Cir.1986). whole, standard for the trial as a we say cannot that the reversal on judicial the basis of misconduct district judge appeared court to favor one is, in a nevertheless, civil trial quite high. side over the other his comments. Comments judge require reversal if judge’s comments about discrim- judge expresses opinion his on an ulti- ination, taken context, out of could be mis- mate issue of fact in front of the or However, understood. the context of the argues for one parties. Id. Rever- comments makes it clear that the judge sal will not required be judge where the simply was explaining evidentiary his rul- emphasizes evidence; nor where judge ing: that evidence that other workers had expresses skepticism, provided the wit- been laid off did not mean that Kern opportunity ness has an respond. Id. was not against. discriminated light In Cutting counsel, comments to particularly adequate evidence to support the ver- relating those good skill rather than dict on the theory, contractual we conclude faith integrity, not generally will man- that Levolor was not prejudiced by date reversal. Id. remark. The difference between comments which mandate reversal and comments which do V. is demonstrated Ward v. Westland Plastics, Inc., (9th 651 F.2d EVIDENTIARY ERROR Cir.1980) and Co., Maheu v. Hughes Tool Evidentiary rulings are reviewed for (9th Cir.1977). F.2d 469-71 In abuse of discretion. Coursen v. A.H. Rob- Maheu, plaintiff suing Thus, was for libel. ins, (9th 764 F.2d Cir.1984). his character hotly in issue. At the Error mandates reversal only if it probably jury instructions, end оf the judge dis- affected the verdict. Haddad v. Lockheed plaintiff’s cussed the credibility and charac- Corp., (9th California ter in a manner which we judicial deemed a Cir.1983). character, comment on virtually directing a plaintiff for despite verdict considerable im- assigns Levolor error two rul pugning judge’s evidence. The ings. First, comments argues that the court im were found to be reversible properly error. excluded as testimony irrelevant from a Levolor employee who had trained Ward, the judge quality demeaned the Kern. That employee would have testified plaintiff’s relevance of much of evi- about the required skills jobs other suggested dence and nondiscriminatory mo- However, Levolor. the witness had al tivations defendant might have had: ready that, testified in her opinion, Kern judge seldom spoke directly to ultimate not qualified other at Levo issues, and cautioned that his re- lor. The court [E.R. was within 29]. its marks not evidence. We declined to discretion in determining nothing more In reaching reverse. our conclusion we did gained would description from detailed not, however, focus primarily on the nature of numerous jobs other at Levolor. of the remarks: the most important factor in our decision to percep- affirm was our challenges also the exclu plaintiff’s tion that case was too weak sion of testimony from Corporate its Man the comments to prejudiced it. ager of testimony, Personnel. This accord taking Even all of the district Levolor, court’s ing to would explained the together, comments we conclude “profit there was sharing received, letter” Kern no reversible error in this case. Levolor which contained the word “terminated”. has explain failed to how the court’s com- 7/29 at testimony [R.T. This was 88-89.] “layoff” ments about and “termination” properly grounds excluded on competen of prejudiced its case. judge’s The cy. occasional Levolor’s witness did not posi hold a commentary on Chicago lawyers on the and tion with until after the relevant flaws in Levolor’s witnesses’ testimony did period, time and personal therefore lacked go not to the Upon merits. our review of knowledge concerning interpretation the of

781 damages The of contractual claims. award before the witness Kern received letter a clearly by Comments was not erroneous. company. with the affiliated became judge prejudicial the district court were not evidentiary rulings were to Levolor. The VI. mitiga- The jury instruction on error. INSTRUCTIONS JURY of law. tion was an accurate statement the judgment The AFFIRMED. is of court’s formulation A district for an abuse is reviewed instructions KOZINSKI, Judge, dissenting: Circuit discretion, of long its statement so as of v. Well the law is correct. United States of will prophecies “The what the courts Cir.1985). 1457, (9th ington, law,” by I do fact ... are what mean the if is more require century Error reversal it will Holmes a wrote Justice almost Law, Haddad Holmes, harmless. Path the probably ago. than not O.W. of Corp., Lockheed (1897). According F.2d Rev 10 Harv L California Holmes, Cir.1983). lawyers (9th the is the business of and prediction of when how coercive the district court Levolor asserts power people’s the state will affect lives: given proposed its instruction should have People want to know under what circum- mitigation damages, which stated on far will run the stances how damages not be entitled that Kern would coming against risk of what so much accept substantially a after failure to themselves, than it stronger hence or she equivalent job after from Levolor becomes a business to find out when dropped job market. out [E.R. object of our danger is be feared. instruction); (rejection of 14-15 (proposed then, prediction study, prediction, Instead, instruction)]. court proposed public forсe the incidence following instruction: gave the instrumentality through as a employee damaged who was An courts.... employment aof of an result breach prophecies It is to make the easier ... duty to by employer, has a contract to be remembered to be understood the loss mak- steps take minimize teachings that the of the decisions of compara- find ing effort to a reasonable general past put propositions into are employment. ble text-books, gathered into or ef- employee through If reasonable passed are in a form. statutes comparable em- could have found forts Id. 457-58. that the ployment, any amount give lawyers only clients reliable reasonably have earned obtain- But can could rea- the extent courts fact do ing comparable employment through advice to overlook, stretch, they say. from When courts efforts shall be deducted sonable prin- exceptions ignore legal damages to em- riddle with the amount of awarded In- becomes difficult. ployee. ciples, prediction among lawyers deed, commonplace is a it statement of This is correct 131]. [S.E.R. can be lost once fool-proof case that even Parker v. Twentieth See law. California gets into court. Corp., Film Century-Fox Cal.3d 740, 474 P.2d rights, Levo- By This case. all is such a instruc- giving There no error won before lor Lorentzen should have instruction, by proposed tion. Levolor’s that, jnov failing granted been jury, contrast, misleading because there and, resort, as a last the district court actually that Levolor had appeal. was no evidence summarily reversed the verdict Kern her back. offered conclu- contrary reaches the im- misconstruing by ignoring or sion CONCLUSION principles finding factual portant legal there is none. the where sup- support for verdict evidence to Therе was substantial First, disregards presump- the majority judgment Kern’s the verdict and on port the tion embodied California Labor Code fered her job old back. Here it is uncontro- that, provides which par- unless § verted that Ada Kern stopped looking for otherwise, ties indicate employment an for work shortly after her layoff. It is also an indefinite term is an employment at will. that, uncontroverted several months after that, Section 2922 trial, mandates to win at layoff, attempted to offer Kern plaintiff-employees must prove that there this, back. In the face of all was an employment contract. Here the majority upholds a damage award based on plaintiff dragged Levolor into court and years several wages. of lost Here the presented nothing more than unsubstanti- court rely exceptions; doesn’t on it simply ated assertions that there was implied an affirms the apparent district court’s conclu- contract of employment. response, Le- sion that Ada Kern adequately mitigat- volor demonstrated that it employ- told its ed damages. potted But are plants? we If ees in no uncertain terms that it did not going we’re to affirm the district court intend contract, to create a and that it at all when its plainly actions are contrary to the times followed company policies. The ma- law, facts and why bother with appel- jority upholds nonetheless a jury verdict late review? against Levolor for breach an employ- Admittedly, this is not very important a ment contract. What earthly good then is case; garden it is a variety employment the statutory presumption? dispute, much like thousands of others liti- The majority manages also to override gated in the every year. courts The ver- sub procedural silentio a rule four times dict, $137,000, is hardly by astronomical stated the United Supreme States Court standards, current plaintiff, Ada in unequivoсal terms and just followed Kern, surely money needs the much more unequivocally by every almost other cir- defendant, than the large, a multi-state cor- cuit. A may verdict that have been poration. simple But the that, fact remains based on any of several liability theories of when the fairly law is record, applied to the is normally impossible to dissect. When Levolor is keep entitled to money. We there is insufficient evidence to support one have a responsibility to so hold. legal theory, therefore, the entire verdict must be Purporting reversed. apply very exception rule, narrow I. Breach ma- Contract/Good Faith jority finds that in a plaintiffs case where and Fair Dealing legal closely related, theories are where In order to Levolor, collect from support evidence to one of the theories is Kern prove must employment con- nonexistent, where support evidence to existed, tract that Levolor breached the other weak, is exceptionally theories and contract and that she injury suffered aas where the judge substantially interferes result. See Otworth v. Southern Pacific with the jury’s function by expressing his Transportation Co., Cal.App.3d 452, own issues, view on ultimate the evidence 458, The record

is sufficient support general verdict of contains go insufficient evidence to to the liability. So much for stare decisis. on questions. one of these Finally, upholds an exces- sive damage award ignoring relevant A. of a Existence Contract law plaintiffs on a duty mitigate. It is hornbook discharged law The law in employee California is clear: “An has a duty mitigate damages employment, having term, no seeking specified may other employment through be at the exercise terminated will of either party diligence. reasonable The measure notice to the other.” re- Cal Labor Cоde covery must by any (West reduced 1989). amount the The California § Su- employee earned, preme has recently with reasonable Court confirmed that sec- diligence earned, might have since the tion 2922 dis- a presumption establishes of at- charge. Moreover, liability for wrongful will if employment parties have made discharge ends when an agreement is of- no specifying length of em-

783 as as the employer, well and her ployee Fo- for termination. grounds ployment employees. other of Cal.3d treatment Corp., employer’s 47 Data v. Interactive ley too, judges 373 211, and juries, 765 P.2d Cal.Rptr. surprisingly, 677, Not 654, 254 legislative a there reflects as to whether 2922 confused (1988). Section often become employees and employers agree- amounting judgment anything really was relation- employment to their sym- are bound and parties, natural ment the between steps to affirmative they take ship unless missing the facts. for substitute pathies otherwise. provide statutory pre- that the is effect The net state first the has 1872, employment became been California of at-will sumption at-will of statutory presumption fiction, a an incon- legal create to a hollow reduced the of enactment the with employment, way a the on endured to be venience See Lawrence section predecessor recovery.1 hefty Put Backpedaling: Levine, Judicial C. of at- the merits fairly debate can One Law on Brakes ting the of California’s employment. Con- for-cause will versus Pacific L.J. Termination, 20 Wrongful Epstein, In Richard trast of Defense century, the (1989). For a 993, n. 5&994 Will, 947 U.Chi.L.Rev. 51 Contract one law as applied courts California Blades, Employ- E. (1984),with Lawrence parties of the one expect: Unless might Freedom: On Individual at Will vs. ment to the agreement express show some could Employ- ter Exercise Limiting deemed Abusive relationship was contrary, the of (1967). See, example, Power, Union 1404 67 Colum.L.Rev. will. er minable one; Red v. Vance it legislative Hospital judgment Association a But the Labor 554, 551, 158 Cal. Company, considered, enacted Lumber wood debated be should v. Philco (1910); Patterson P. 886 directly 112 government of branches by the 65-66, 63, 60 Cal. Cal.App.2d Corp., 252 See, for exam- public. to the accountable Note, Protect (1967). also See Rptr. 110 seq. et 39-2-201 Ann. ple, Mont.Code §§ Wrongful Against Employees ing At — Will West, Inc., (1987); v. Hillhaven Meech Only Terminate Duty to Discharge: (1989). Achieving —, P.2d 488 776 Mont. 1816, 1825- Faith, Harv.L.Rev. in Good only short-cir- judicially result the same (1980). imposes it sub- processes, cuits democratic amend any relevant late, without As of and uncertainties costs collateral stantial courts statutory language, ment Searching everyone involved. situations more more and found have terms, of an existence, divining employ at-will presumption where burdensome, time-con- is a implied contract wink, nod, a by a has been overcome ment proposition. suming and uncertain See, for ex stray comment. or a smile a great- determination an erroneous risk Candies, Inc., 116 Pugh v. See’s ample, parties encouraging magnified, ly 329, Cal.App.3d em- as as well positions employers weak — International, Rollins (1981); Wayte v. wheel-of-for- litigation spin the ployees—to Cal.Rptr. 59 Cal.App.3d Inc., 169 reasonable or a planning Rational tune. Hewlett-Packard (1985); Robinson very difficult strategy becomes litigation 1122-23, Cal.App.3d Corp., 183 remotely a case how even can tell no one Pe (1986); v. Sohio Harlan Cal.Rptr. 591 court. gets into once resolved will be (N.D. 1021, 1030 Co., F.Supp. troleum outcomes, lay which ability predict law). What Cal.1988) California (applying model Holmes’s of Justice heart at the has simple inquiry relatively once vocation; aas is lost profession, legal bur lengthy trials stuff become a forecaster to lawyer ceases every encompаssing discovery, densome croupier. becomes em- between transpired that ever thing Proposal Bastress, Synthesis and commentator, A exceptions Reform one words 1. In the Doctrine, W.Va.L. At-Will Employment pervasive so become doctrine at-will to the prevent an will 319-20 nothing luck" Rev. "bad but that aggrieved recovery. M. Robert employee from 784 last;

2. majority’s (2) treatment of procedure Levolor’s adopted by the Le- claim that Ada Kern was not entitled to implementing volor in the February 1985 recover because she had failed to overcome workforce reduction company which the statutory presumption the employees at-will em- laid ratings off based on for ployment problem. well illustrates grade, attendance, Un- production and irrespec- law, the current der state of California seniority tive of “golf-score” so-called —the presumption employment at analysis. will can be good, These items sound and I if overcome one of two is met: certainly conditions can understand how majority them; rely all, comes to (1) after there supported the contract was by consid- must be something there or else law- independent eration of the services to be yers spending wouldn’t be so performed much time by the employee pro- for his talking is, however, about them. The fact spective employer; (2) parties or when one carefully, examines the record agreed, expressly impliedly, that the neither item amounts to an agreement only could be terminated for definition, within Foley/Pugh good so as to cause. statutory rebut presumption of at-will Pugh, Cal.App.3d 116 Cal.Rptr. at 171 employment.2 (1981), quoting 917 Rabago-Alvarez v. Industries, Inc., 91, 96, Dart Cal.App.3d 55 a. The Handbook Cal.Rptr. Ada does claim that there independent was con- language In second-grader even a could sideration an employment for contract or understand, the page first of the Levolor express that she had an agreement with Employee Handbook states: “this not a anyone at Levolor that she would be dis- of employment policies contract may charged only good for dr in cause accord- be modified Company at time.” procedures. Thus, ance with certain Kern Appellee’s Excerpts of the Clerk's Record required prove there was an (AER) 5.3 It is the at most fundamental

implied contract between herself and Levo- principle of contract law that there can be notes, majority lor. The citing Foley, that legally obligation no enforceable without a may evidence of such a contract come from promise, a commitment to future behavior.4 sources, many including employment an It is imagine difficult to a clearer state- manual, employer’s personnel practices ment that one does legally not intend to be policies, longevity of service. bound the contents of a written doc- record, hefty From this Ada culls ument than the words Levolor used here. pieces two of evidence from which the Yet majority relies on the manual as jury might (1) have divined contract: evidence of a contract. Majority op. at policy, Levolor’s described Employee in its 776. I fail to employment see how an Handbook, laying employees off AAA manual that states on its face it is 2.Neither attempts Ada Kern nor the 3. Ada Kern was aware of this RT statement. agreement an length derive from of em Kern's 7/28 at ployment with Levolor. Nor would be able Cleary Airlines, Inc., to. Cal.App.3d v. American 4. "A promise promises is a contract or a set of Cal.Rptr. (1980), gives remedy, for the breach of which the law Cleary’s eighteen years court found that of ser performance or the of which the law in some vice, beginning young when he was a man and way recognizes duty.” (Sec- as a Restatement including regular promotions, coupled with the ond) (1981); question § of Contracts “No for express policy adjudicating employ airline's dispute law contracts arises unless the disputes, estoppel,” pre ee acted as "a form of promise one over a commitment future —a cluding discharge just without cause. 111 Cal. Farnsworth, E. Allan behavior.” Contracts 455-56, App.3d 722. Ada Kern (Little, Brown, 1982). § 1.1 5at See also began working Fried, (Harvard, Contract Charles as Promise 1 She was hired as a wandmaker. Kern worked 1981) ("The promise principle ... is the moral years, always for Levolor for less than six law”). basis of contract Reporter’s that same script classification. Tran (RT) hardly at 40. This is a scenario suggests implied agreement lifelong employment. slightly lower production Kern’s one which agreement, legally enforceable wandmakers, two of the other the that change by than to subject it is that provides Id. senior. any the as she was least time, and can serve at employer had a con- parties the proof that type lay- February 1985 the preparation In tract, otherwise. implied or carefully decisions, recorded Levolor off this court and both California tally from series of Cases on a employee data relevant is not agreement implied an recognize that tally sheets at 55-66. AER sheets. explicit an there where enforceable awas One sets of scores. contained two See, for exam contrary. to the agreement measures, reflecting the of absolute series Realty Advis Fargo Wells Shapiro v. ple, B, etc.), A, aver- (AAA, grade employee's ors, Cal.App.3d attend- measure of a production, and Hill, 45 Corp. v. (1984); Wal-Noon layoff, eligible for employees All ance. Cal.Rptr. 646 Cal.App.3d Id. Kern, ratings. received these including Air Trans Wоrld (1975); Gianaculas con- tally also sheets Many at 64. (9th Cir. Inc., F.2d lines, scores,” the in which “golf a set tained law). Shapi 1985) (applying California rel- a converted to were measures absolute Appeal held that Court ro, California the employee, the scale; the the better ative option in a stock explicit disclaimer an analogy golf to score, the the hence lower employer’s the reserved that agreement Smithling’s uncon- was Steven scores. It not be over could discharge will to right golf scores were that testimony troverted to agreement implied-in-fact by any ridden in the employees only compare used 615-16, 622. Cal.Rptr. at contrary. 199 the the in same same shift. classification Le Gianaculas, 1394. F.2d at Accord, not used They were 45-46. 7/28 at RT explicit states Employee Handbook volor’s shifts, or on different employees compare any of the not bound Levolor ly that doing differ- same shift on the employees Nonetheless, Ada therein. outlined policies jobs. ent implied an find the court would have Kern golf she can’t magic But the nothing about document. this There was contract rely wants ways: simply If a mathematical scores; they have it both were ex accept the Handbook, must per- she work employees’ on the summary of various Under therein. contained layoff limitations decisions press formance, make used to ex states law, that a document sim- otherwise California were among employees who cannot a contract is not that plicitly Kern was Because Ada ilarly situated. implied contract. of an evidence and there her shift only wandmaker her, golf no compare whom one with no “golf scores” b. for her. prepared were scores item of evidence— second does the Nor con- evidence, majority Based on sup- slightest provide the golf scores— rеasonably find jury could that cludes obligation finding a contractual port obligation contractual had a Levolor that Ada Kern Kern. and Ada between I don’t Kern. for Ada golf scores prepare the work- But in employee. good awas by uncontro- demonstrated it. Levolor get elsewhere, is relative. everything place, were golf scores that evidence verted supervisor Kern’s shift Smithling, Steven How Kern. could to Ada inapplicable contradiction Levolor, testified without Levo- this that from jury conclude rational off because laid Kern was Ada contract implied had lor Ada a downturn experiencing company was scores? receive such she would production needed business Levo- fact that on the majority relies wandmakers, than rather two full-time other for two scores golf calculated lor Report- employing. then they were three their only ones on who employees All three (RT) 7/28 at Transcript er’s Majority job classification. in their shift highest ratings, had AAA wandmakers exceptions, were the these But at 774. op. attend- gave, excellent company golf no indication there is Unfortunately, Id. at records. ance scores, computed, played any part in once client has been afforded differential treat- ment, irrelevant, lay the decision whether to them off. The no matter how trivial or is, employees posi- parade fact most Ada Kern’s and then it before the aas exactly grave injustice.6 tion were treated same: golf did not receive scores. See AER at does, say, To as the that a ra- rationale, majority’s 65. Under the jury might tional find that Ada Kern implied Kern had an contract to be treated right contractual perform to have Levolor employees than most of the other different irrelevant, hypothetical an and to her un- position. just in her This doesn’t make sheet, layoff tally known tabulation on the sense.5 not, contrary is so to common sense it does my opinion, pass in Quite test. snicker Equally significant, the record is clear problems aside from the substantive with golf- that Ada Kern was not aware of the today’s opinion, one unfortunate conse- system layoff. score until after her RT quence lawyers encouraged is that will be 7/27 at 97. Yet she claims that Levolor engage type to in this of scorched-earth by failing its breached contract with her to tactic; all, litigation you after never know give golf laying her a score before her off. triviality might what impress a court and implied agreement To show that she had an jury. This is no doubt welcome news for they give with Levolor that would her such lawyers, I helps but doubt it economy however, rating, prove Kern must first long-term or that it is in the interest of management that Levolor did or said some- employees. thing Pugh, Cal.App.3d to her. at “implied” 917. It confuses “imaginary” employer to find that an B. Breach of Contract employee had agreement over a Even if Ada Kern prove could that Levo- policy about which had abso- lor had obligation some contractual her to lutely knowledge. no regarding layoff, there is no evidence majority obligation Where the finds an company anything that the did less than part provide golf Levolor’s scores is promised. what it It is uncontroverted that beyond me. It’s not Employee layoff before the Levolor had three wand- (even assuming makers, Handbook the Handbook layoff and after the only two. contract). any could serve as a It’s not in Kern had seniority the least of the three agreement. any written Nor is there evi- wandmakers: years She had five and a half anybody dence that Ada Kern talked seniority at the time layoff; of her Martha golf layoff. about the scores years; before Barone had seven Gloria.Yanes had cheap litigation What we have here is a years. Employ- eleven and a half Levolor’s trick, honed to a art contingency- fine ee “seniority Handbook states that con- fee-hungry lawyers: rummage through the sidered ... in the event of a layoff.” AER opposing party’s you files and records at It until also states that “[o]ur find something vaguely your guideline that looks like person is that the least senior will 97; majority 5. The majority also sees some invidiousness in at 145. The also is im- 7/29 company fact transferred two work- pressed majority op. with it. See at job during layoff, ers between classifications is, disparate again, But treatment once not Majority op. but Kern was not transferred. enough liability; to establish there must be a overwhelming majority employ- 774. But the right only contractual to similar treatment. Not ees laid off were not transferred. See AER at 68. To claim the did Kern to show fail contractual entitle- transferred, right to be voluntary layoff, possibly ment to she could not again argue Kern must she was entitled to be employees do so: Most laid off were on involun- treated different than most of her coworkers. tary layoff. See AER at 70. Like all other to, discrepancies points entirely Kern this one is yet example 6. offers another lacking in relevance to the issues before us. illusory such an distinction: The three other But, shows, crafty lawyer as this case can employees go February AAA Levolor let together piece a series of voluntary layoff, irrelevancies into regular on layoff. while Kern was on juries judges lawyer compel- discrepancy mosaic that will find Kern’s stressed this jury. ling. more than once before the See RT consider- policies its own to follow the remain- first, provided off laid from calling workers back seniority in ing skill, ability, knowl- have employees ing tempo- points she particular, layoff. required perform efficiеncy to edge and during summer hired rary workers lay decision at 32. Levolor’s Id. work.” spent layoff, who she was on while her more senior than rather Ada off Assuming again cutting wands. time some with this consistent obviously colleagues bring any obligation to that Levolor guideline. temporary work- it hired Kern before back men- only factor not the seniority is But showed ers, evidence the uncontroverted points Handbook. in the tioned complied with fully actions that Levolor’s following passage: particularly Smithling testi- policies. Steven its stated ‘AA’ & classified who are “[E]mployees workers would temporary fied that off normally be laid will workers ‘AAA’ wands, and that occasionally make may last, though even their from full-time require three did employees seniority than other less summer, RT 7/28 during that wandmakers claims Id. She classification.” same to the 59, 66; no evidence there was at worker, she AAA was a she that because Moreover, Employee Hand- contrary. last, regardless off have been laid should employees who “Qualified are book states: argu- this with problem The seniority. of layoff will be called back from recalled and Gloria Barone Martha is that ment in the re- to their work classification senior than merely more were Vanes AER they were laid off.” order that verse ratings. AAA Kern, they too had but Ada added). was Ada Kern (emphasis at 32 provision on The Handbook at 45. RT 7/28 off; no only laid one wandmaker first and compelling, may sound relies Kern which a her to be before hired or recalled was absolutely good. no her it but does wandmaker. full-time support what Handbook Nor does produc- seniority and Kern’s relative Ada that argument her related to be appears layoff her and recall that indicate tion level lay to first responsibility had Levolor procedures with the in accordance were job clas- in other employees lower-rated off Hand- Employee in the Levolor described mechanic, Ortiz, a sifications, Ivan perhaps time, is absolute- there At the same book. AER at Salk, janitor. See a or Jaber mechanism any other of ly no evidence terms, appli- is, by its language quoted The only layoff. behind motivation classi- in the same “employees only to cable for dis- presented Kern explanation per- factory where workers In a fication.” discrimination, at RT 7/29 age charge is functions, is the this specialized form support no evidence there is system Levolor it is the system; sensible theory. Employee Handbook in its adopted “no, or acknowledges that making followed scrupulously it which tend- presented no, was virtually evidence More- layoff decisions. February 1985 its it Kern as treated that Levolor ing to show is a con- over, Employee Handbook if the op. at Majority age.” of her did because em- many parties; tract, rights to gives superflu- clause is subordinate 777. The entitled to Kern were than ployees other Kern, Ada that uncontroverted ous. It they would not that guarantees rely on the the three oldest was employee in higher-rated by a bumped wandmak- wandmakers; two retained laid Had Levolor classification. another age by California’s protected also ers were similarly situ- Ortiz, other or some Salk off Barone was statute —Martha discrimination Kern, the room for to make ated RT 7/29 Vanes Gloria 62 and itself in surely have found company would no evidence presented Ada Kern 49-50. employee. that litigation or did said ever anyone at Levolor she believed anything fol- to indicate failed alleged Levolor Having no presented job. for too old considering seniori- policies its own low discriminated ever that Levolor evidence decisions, Ada layoff making when ty because employees any of its against failing and accuses turns around age. their She testified that she had no injuries. tion Kern’s claimed The record reason to supervisors believe that her shows without contradiction that golf anything against her at all.7 Ada Kern’s scores merely a mechanical tabulation lawyer speculated discrimination of each employee’s performance ratings, all might have been Levolor’s motive hidden of which were in fact prepared for Kern as mistreating her client. RT 7/29 at 148. every employee. How, then, other Even way argument, she offered no a reasonably could conclude that Ada other sinister motive for action. Levolor’s injured by Kern was Levolor’s failure to prepare golf score for her? The uncon- In the face of evidence that her layoff troverted testimony of Levolor officials was consistent with poli- Levolor’s stated preparation was that golf scores for cies, presented Ada Kern no evidence to Kern would have made no what- difference support her only explanation alternative soever. RT 7/28 at 101-02. discharge. These sup- facts cannot port verdict of breach of contract. boiling point of water is the same expressed whether Fahrenheit, 212° 100° Injury C. Celsius or 373° Applying Kelvin. a me- chanical formula for converting As we are Kern’s taught all during our first performance ratings year golf into school, can- law scores order to collect dam not affect her position relative ages claim, layoff in the plaintiff contract must queue vis-a-vis employees; prove other that she the fact injury suffered caused remains, she was productive still the least defendant’s breach. See California Civil junior most and of the three (1970); Code 3300 wandmakers. Otworth § v. Southern idea that Kern injury suffered Co., because Transportation 166 Cal. Pacific the company App.3d 452, 458, perform fаiled to 212 some rou- Cal.Rptr. (1985); 743 and tine irrelevant computations Patent Scaffolding on her Co. v. William sheet, tally any Simpson Co., without consideration of Cal.App.2d 506, Constr. 256 511, happened what would have had Cal.Rptr. (1967). done only rele so, makes no sense me. vant Even if evidence that, here demonstrates had might have drawn Levolor done some sinister every little inference thing Ada Kern from the calculation, absence have, claims it plain- should she would still have tiff still faces the age-old principle been Where, then, laid off. that she is her beef? can only recover if she can injury. show We have already seen that Levolor fol- She has shown none. lowed precisely the terms of its Employee Thus, Handbook. even if the Handbook D. Good Faith and Dealing Fair contract, was a there could have been no injury because there was no breach. really There is not much to say here. did show that she was golf not given There is insufficient evidence to support a But, scores. assuming Levolor had a con- finding existed, that a contract or that Le- duty prepare golf scores, tractual it, breached any volor that or such breach company’s failure to do support so cannot injury caused to Ada Kern. It defy would damage award there if is no logic connec- causal to then hold that there was sufficient Mary Q: supervisor Camire was the Q: assistant He’s the very apologetic fellow that was Levolor; on the third at shift she? wasn’t off; having you about lay isn’t true? that A: Yes. it, A: He sorry told me he was he had do Q: you got along And Mary; with didn’t yes. you? Q: any You don’t have reason to think Oh, yes. A: against anything you; Steve had you? do Q: any You don’t have reason to think that A: No. Mary anything against you; had you? do Q: any You don't have reason to he think A: I don’t believe so. anything against you your age; because of Q: Smithling your And supervi- Steve was correct? sor on the you third shift at the time were laid A: No. off; correct? at RT 29-30. A: Yes. absolutely no other might have reason. There’s Levolor to find that evidence shouldn’t have been back. reason she right of something “injure [Ada done agree to receive benefits Closing Argument, Plaintiff’s RT 7/29 at Kern] 684, 254 Cal. Foley, (emphasis added). brought 47 Cal.3d Ada Kern ment.” 373, contract, quoting breach of the P.2d Comunale claims of breach Rptr. dealing, Co., good faith and fair 50 Cal.2d covenant Ins. & General v. Traders discrimination; only coher- age but also P.2d 198 See theory of Levolor’s actions was that the ent at 698 n. Foley, 47 Cal.3d deliberately discharged company her and good (implied covenant 765 P.2d ‍‌​‌​‌‌​​​‌‌‌‌​‌‌‌‌​‌​​‌‌​​‌​​‌​​​​‌​‌‌‌​‌‌​‌‌​‌​‍bring refused to her back because it dealing override em fair cannot faith and thought she was too old. will). ployment tract witnesses, differ. Even sort credible the fit of the ing more planation for without crimination, cedures didn’t, supported. difference, and a half ings, pensable. set The evidence Ada and no doubt obliged to follow following about which standing ^[*] Kern was a warning. She was than doubt, good years ^[*] no which she testimony of if the vague them would gave alone, relating to Ada Kern’s con- showing that the faith Kern’s her case amounts seniority who was might have followed but felt reasonable minds ^[*] discharge good Ada allegations about betrayed. claims is not of are not those left ^[*] worker discounted all have completely procedures, justifiably proffered legally com- every !}(cid:127) made Such with five Levolor’s company to noth- laid off might bene- ^[*] feel- pro- dis- un- up- ex- in- Kern’s case The district court That’s what’s Age discrimination. jury: Breach of contract or breach ball of Honor, they’re all or down to the one them all quite a bit of ination. may not implied ly? So The Court: Three counts? Mr. Ms. MacMillin they terminated her. breach of course means more instructions. [Levolor’s Brown question one of the Court: the third one? wax in federal court. she warranty together They figured she was have in the state. the same. That’s all the same has three counts in here and power same Age is: count, implied warranty, [Ada because if want to. We problems. Did apparently saw Ada I discrimination. But way: over breach of contract you Kern’s attorney]: of here that do so correct- age I I can attorney]: told the discrim- too old. You’re Your join you of at 121. RT 7/27 and a Multiple Theories II. confirmed this view: Ada Kern Verdict General essentially the ... That’s The Court: Ada laid off Materializing you from the other of it? That were charges; isn’t you explanation terminated because single you is a or were allegations Kern’s contract age in violation of the too old supposed Levolor’s misconduct— dealing? and fair good faith discrimination: I can’t think The Witness [Ada Kern]: just unfair to Ms. Levolor was any other reason. of also, didn’t follow But its acts alone. regard- layoff, policy regarding its own at 98. RT 7/27 recall, of se- regarding the benefits ing agrees that there was Even the things. none of those niority. It did jury on go evidence insufficient giv- nothing they had They followed claim, ma- age discrimination Kern’s assurance, promise a an en her as a 777, jury returned yet the op. at jority depend on. course, she could Of in her favor. general verdict its verdict may may not have based jury that her Plaintiff believes all, After age discrimination. finding of There’s no other the reason. have been 790 Cir.1989) 1294, (10th F.2d 1299-1300 by the 866 ignored statements

they might have circuits); in other attorney (also reviewing the rule plaintiffs plaintiff, Allan, Graphite Corp. of the v. clearly to the heart American went North judge that did; 387, (D.C.Cir.1950). The know what the 389 We don’t 184 F.2d case. general ver- why Third, precisely Eighth Tenth Circuits discuss and that see, example, case cannot stand. exception, dict harmless error Co., v. & Marine Maintenance Simko C C Supreme century ago, the More than a (3d Cir.1979); 960, E.I. du 594 F.2d that, we cannot explained because Court Co., Berkley de Nemours & Co. v. & Pont general verdict jurors, minds of read the 1247, (8th Cir.1980); n. 8 F.2d improper may have based on been Authority Housing v. Choctaw Asbill theory liability must be reversed. of “[The 1499, Oklahoma, Nation per- prevents us from generality verdict’s] Cir.1984), (10th actually has found but none If, plea found. ceiving upon which error. harmless therefore, error was upon any one issue committed, of evi- either in the admission has created a narrow The First Circuit court, dence, charge in the rule for cases where harmless error Maryland upheld....” cannot verdict theory required to establish one elements 278, 493, Baldwin, 5 S.Ct. 112 U.S. v. of the elements liability are a subset (1884). has Court 28 L.Ed. 822 theory. necessary to establish another unequivo- reiterated the rule three times Corp., v. Pharmaceutical Brochu Ortho Mining Wilmington Co. cal terms. Star (1st Cir.1981), plaintiffs F.2d 652 Fulton, 27 S.Ct. 205 U.S. v. product liability brought claims of strict (1907); York 419, L.Ed. 708 United New misrepresentation. Liabili- and fraudulent Pilots Asso- Jersey Sandy Hook and New re- misrepresentation fraudulent ty for 613, 619, Halecki, 358 U.S. ciation of strict quired proof of all of the elements (1959); 517, 520, 3 L.Ed.2d 541 Sunk- S.Ct. plus proof knowingly product liability, Growers, & Smith Inc. v. Winckler ist there was suffi- false statements. Since 19, 29-30, Co., 370 U.S. Products Citrus support a verdict cient evidence 1130, 1135-36, 8 L.Ed.2d 305 S.Ct. product liability, it plaintiffs on strict beyond cavil. of this rule is The wisdom there was evidence irrelevant whether general commentator said As one upheld the knowing falsehood. The court jurors can tell verdict: “No one but could not general verdict because jurors it and the will not put what was into claim plaintiffs on the fraud have found for is as say. verdict be heard to finding liability, hence also strict without essentially mysterious as and inscrutable at 662. Bro- the error was harmless. Id. the an- judgment issued from the which and, in very a rare situation chu involved R. Sunder- Delphi.” Edson cient oracle applies, the Brochu the few cases where it 29 land, Verdicts, Special, General fully with Baldwin. rule is consistent 253, James See also Yale L.J. 258 Lucas, 5A Moore’s Moore & Jo Desha Circuit, Wm. of its The for reasons Seventh (Matthew Bender, 49.02 Federal Practice H own, adopted precisely rule has a maverick 1989). ed. 2d repeatedly announced opposite of that the Supreme In order to win on by the Court. speaks consist- Supreme the Court When Circuit, the defen- appeal in the Seventh issue, an the inferi- ently repeatedly on plaintiff’s must show that none dant follow suit. courts are bound to or federal support general verdict. theories will Morrissey v. National Most have. See Corp., 651 F.2d Zenith Radio McGrath v. 19, America, 544 F.2d Maritime Union of Cir.1981). 458, (7th v. See also Cross 464 White, Cir.1976); (2d Avins v. 627 26-27 Cir.1941)(“if 883, (7th Ryan, 124 F.2d 887 Blevins, (3d Cir.1980); 637, Ely v. F.2d 646 any sustain evidence to there is substantial (4th Cir.1983); v. Jones 706 F.2d 480 plaintiff, the in of each Cir.1981); count favor (5th one Miles, 108 656 F.2d rea- upheld”). For verdict must be Dittmer, general 795 F.2d 673-74 Dudley v. Baldwin, makes in this rule Tools, Inc., explained (8th Cir.1986); sons Farrell v. Klein

791 Traver, question. in of the theories it contra- all, never mind no sense F.2d at 938-39. authority. Supreme Court venes case when ‍‌​‌​‌‌​​​‌‌‌‌​‌‌‌‌​‌​​‌‌​​‌​​‌​​​​‌​‌‌‌​‌‌​‌‌​‌​‍courts allow As is often the general circuit, rule we state In this to avoid absolute discretion themselves jury verdict will general

as follows: “[A] now sub- exceptions principles, evi- is substantial only if there upheld College v. merged the rule. Roberts theory of every support each to dence (9th Desert, Cir. jury.” Syufy En- liability submitted 1988), brought process due plaintiff a Inc., Multicinema, terprises v. American claim, deprived alleging that she had been Accord, 1986). (9th Cir. F.2d hearing. fair She also a without States, 767 F.2d v. United Brocklesby claim, alleging equal protection brought an Cir.1985). (9th 1288, 1294 declined to Our court sex discrimination. came to a test prohibition This absolute sufficient evi- there was rule on whether (9th F.2d 934 Meshriy, 627 v. Traver equal protec- go to the on the dence Cir.1980), very similar to Brochu. a case that, any explained tion claim. We tort claims several state brought Traver event, exercise under we could discretion еmployees, as well and its against a bank uphold general verdict Traver and against the bank. 1983 claim as a USC § Roberts, process grounds. due plaintiff on general verdict a jury returned court could F.2d at 1417. Roberts there was appeal, favor. On Traver’s if verdict was possibly have known the present- Traver as to whether question protection, or process, equal based on due law to under federal ed evidence sufficient not cite Bald- opinion Yet the did both. employees’ actions. to its Growers, bank win, tie the of the other Sunkist however, was, rule; evidence sufficient it standing general for the sim- There cases employees doing liable the bank its on Traver without ply hold both relied held that analysis. The court state claims. on the question unnecessary to reach Hemet, Next, City Benigni liability under section be- the bank’s Cir.1988), (9th for the cited Traver F.2d 473 upheld could be general verdict cause the discretion to that the court had proposition theory. Id. at 938. The law the state on stand, without general verdict allow prove the section necessary to elements of that discre- explaining limited nature the elements of the all contained 1983 claim verdict upheld then tion. We therefore, jury, claims. The state law equal protection process and based due bank liable under have found the could not in- may have been claims, although there finding state law 1983 without also section equal support sufficient evidence id. at liability. See theory. Id. at 477-78. protection its have reached court could erosion of a Culminating Traver this circuit’s that the error was by explaining rule, finds

conclusion perfectly good harmless, rationale of Bro- following of dis- the exercise case for appropriate Instead, its many actions that could be cretion; imagine Traver described chu. I can’t “discretion,” potential and identified four little majority of finds in terms worse. The age its exercise these relevant to because the contract factors for confusion closely (1) for confu- relat- the were potential claims so discrimination circumstances: pre- this is may op. have resulted at 777. But jury Majority that the ed. sion of particu- potential of a so much cisely why submission there was erroneous from an con- age of discrimination claim; (2) defenses the the confusion. lar whether togeth- intimately bound upon which count tract claims apply to the losing party Kern, Ada of sustained; (3) er; was the view that being the at least is the verdict Yet there judge. the trial attorney and supporting the strength of the evidence age discrimination. the ver- was no evidence upon to sustain being relied count tak- claim been discrimination age Had the (4) the same dict; extent which the been left jury would away, en the apply to one or more of fact disputed issues Anderson, 656 F.2d 528, (9th Cir.1981). explanation for the dis- only Levolor’s with Thus, sup- jury the did not have to find a con- the evidence will charge. When theory liability; plaintiffs only obligation in order to hold Levolor port the tractual com- The error is the verdict cannot stand. claim. age on the discrimination liable where, here, there is insuffi- pounded The Baldwin precisely rule exists to deal any go jury to the on cient evidence case the kind of uncertainties aspect plaintiff’s the case. unnecessary tuning fine is when presents; to confuse sufficiently interrelated While facts and law coincide. the were, in a Kern’s claims jury, the sense, independent enough that a different III. Judicial Comments presup- on one claim does not jury verdict judgment enough It is to reverse this Traver, on the other. pose a verdict support it and that there is no evidence section 1983 could not have found jury apart cannot tease ver- that wе finding state tort lia- liability without also theory on a may dict that have been based It is is not the case here. bility. That con- majority recognizes faulty. only jury found that possible judge trial compounded when the fusion Ada Kern way in Levolor harmed which com- province of the invades age. of her by discharging her because fact. ments on ultimate issues of is, age discrimina- That in the absence of tion, that Levo- jury might have found judgment will reverse a on the basis We obliged to do everything did else it was lor trial where the judicial behavior at or, indeed, no other obli- that Levolor had dispas- preclude “a fair and judge’s actions Kern. gations to the evidence.” sionate consideration of Quercia States, 289 U.S. v. United that, in order to contends 698, 700, 77 L.Ed. 1321 53 S.Ct. discrimination, jury necessar age find Inc., Plastics, Accord, Ward v. Westland rejected assertions ily must have Levolor’s (9th Cir.1980); Shad F.2d treated in accordance with that Kern was Inc., Reynolds, Dean Witter was dis company policies and that she Cir.1986). (9th We have said legitimate reasons. charged “[a] business error when it trial court commits reversible op. enough, 777. True but Majority issue expresses opinion itself its on an ultimate rejection of these defenses is not ” Shad, liability jury.... prove sufficient to on breach of fact front of the claims; good to render a contract and faith 531. F.2d at plaintiff on these claims verdict that Levolor had some

jury also had to find age A. “There is discrimination.” obligation to Ada Kern. See contractual age brought Ada Kern discrimination Otworth, Cal.App.3d at Cal. presented no against claim Levolor. She discrimination, the oth Rptr. Age charge. support She evidence (see hand, statutory Cal. is a claim er support presented insufficient evidence 12941(a) (West 1989)); Government Code § trial, charges. During the any of her other to dis duty had a to Kern jury, judge commented front age independent charge her bеcause of her age RT 7/29 “There is discrimination.” agreement contractual between gen- Subsequently, returned prima facie case of them. To establish a Kern. If we are to eral verdict in favor of discrimination, had to show Ada Kern verdict, I I’m not sure know sustain such (1) she was a member of fair trial is. what a old), (2) (i.e., protected years over 40 class verdict, majority the the upholding satisfactorily, performing she was reading of proposes a rather remarkable (3) was a causal connection be there comment. judge’s age discrimination her dis protected status and tween context,” says, majority “makes the Univ Levy Regents v. charge. See “[T]he of simply explain- judge that the it clear ersity California, Cal.App.3d ruling: that evidence evidentiary Douglas (1988); ing his itself demon- off but that it could defend had not been laid other workers was, discharge strating was not discrimi- none- that Kern not mean did That Majority op. theless, at 780. against.” procedures. its standard nated within meant, it’s not he This, view, but what may significant what he is a my indication said; concern ourselves with and we must judge that the district misunderstood the statement. The jury perceived his how the applicable evidence as well as the law. Levolor’s exchange between immediate expect jury then can we to have How jury, in front of the judge, and the counsel drawn an innocuous inference from his forthright pronounce- contains some rather comments? ments: you trying get B. “Are rid of her?” age there’s no discrimi- Mr. Brown: So The “ball of wax” comment was not

nation. jury; made in front of the other comments age discrimina- The There Court: were.8 On one of the numerous occasions against They tion. discriminated judge upon when the took it himself to lay the others. lady and didn’t off witnesses, he confronted examine Steven 47. The does not see RT 7/29 at Smithling give the failure to about They believe that reversible error. this as golf Kern a sсore: “context,” judge jury will take the from Why you do that? I The Court: did evidence show- mean: “I will not allow get you give golf it. score don’t Some lay other failed to off ing that Levolor you yet they’re don’t and all to and some Kern, than Ada employees who were older category being in the same the one alone, evidence, standing because such department. only employee Levolor did not discrim- prove does of her against Ada Kern because The Witness: But at the time— inate age.” Nobody compare The Court: else to to, no Nicholas or Arnold jurors them Jack this attribute to

Not does [sic] to, do, you give normally compare I Palmer to them but than we sophistication more theory? golf is what them a score. On what at all convinced that this am not again his state- judge meant. Consider jury discussion: during ment instruction score wasn’t The Witness: Just Ada’s Age But The discrimination. Court: here. That’s all the same they’re all the same. Why not? Court: join court. I can of wax federal ball why not. I don’t know The Witness: to. together all if I want We them During the— you power over here that quite a bit of get you trying Are rid The Court: I told the have in the state. may not problem? your her? What’s Breach of contract breach jury: warranty discrim- implied because cross-examining RT 7/28 at 104. When too old. They figured she was ination. ques- argumentative attorney asks such her. they terminated So tions, objection and judge sustains an you Did do so correct- question is: on; can attribute the trial moves ly? advocacy. attorney’s comments questions there judge asks such When the interpret is one to RT 7/27 at How him; gets is no one to overrule that the It seems this curious comment? judge’s view of impression a clear had dis- assuming that Levolor judge was old, too the evidence. Kern because she was charged Ada n claiming you were apparently The Court: You're point, judge was con-

8. At one against you’re a wom- might because be more than one ball discriminated that there cerned coffee, you up are to make sent wax before him: you? other ... And Kern]: The Witness [Ada No, doing it. I liked Witness: sir. upstairs always made coffee. I went times I girls Most do. The Court: for the and made coffee to the lunchroom at 94. RT before lunch. breaks and Craun, personnel assist- a Levolor Co., Leslie Hughes Tool In Maheu v. ge- ant, was a testified that “termination” com- (9th Cir.1977), judge the district forms of Levolor used for all neric term when credibility of a witness on the mented including company, separation from at issue. We character was the witness’s quitting. RT 7/28 at discharge and Here, layoff, Ada error. found reversible did not explained that Levolor 118. She on the of her own no evidence presented suggest by the June letter intend discharging used procedures Levolor longer eligible for no Kern that she was critically on the depended her. Her case layoff recall; not affect her the letter did witnesses, par- disbelieving Levolor’s jury’s 119; RT 7/29 at seniority Id. at status. or Smithling. judge com- ticularly Steven 5. impeached he error when mitted reversible

Smithling. it; none of judge would have explain its use of allowed to not be

would English language: is.” “I know what the law C. You cannot use words The Court: motive, Ada insidious To show Levolor’s different “discharge” “layoff.” It’s 105, the heavily on Exhibit relied instructing jury. There’s I’m so and profit- from the Levolor 1985 letter June “layoff”, “dis- between a difference office, that she had sharing notifying her discharge “quitting.” And charge” and February. Her as of been “terminated” nothing to do with quitting have discharged theory was that Levolor tries to this witness layoff though even they never age, and that because is. I what the law you tell so. know bringing her back— had intention They are different. terminated, not laid off: that she was you’re pay- still on the “Layoff” means important ex- To me the number one “Quitting” you’re finished. means roll. this is the Levolor is No. 105. And hibit you’re finished. “Dischargеd” means 12, 1985, where letter dated June you’re finished. “Termination” means had been terminat- states that Ms. Kern says. Despite what she She got You it? Nothing ex- February ed as of talking what she’s about. doesn’t know maybe this was plaining the fact that ahead. Go pay- just from some kind of terminated maybe she was still on record or that roll know who drafts I don't Court: It

layoff might come back. But some things you people. these clearly you letter and very, very written know, East, you lawyer back idiot yourself. It to see that for will be able kinds of—sometimes absolute draft all it had effective termination and been judge going they think a trash and 4th, everybody February is what which way. “Termination” and it. No swallow along; one of the reasons planned all layoff. “lay- And “discharge” are not Kern was never asked probably that Ms. discharge, is not termination off” voluntarily layoff or never was on so, say I says so and period. The law layoff meetings where the any of these me. take the law from you got to was discussed. you.9 Thank RT Closing Argument, 7/29 Plaintiff’s 144-45. Yeah, Chicago. contentious judge displayed The Court: time the

9. This is not Come on. exchange regional imme- Witness the his bias. Ange- many Los dealt with Mr. Brown: I’ve following diately the "There is discrimina- too, lawyers, contentious as that were as les tion" comment: your honor. Honor, I differ on that. Mr. Brown: Your in the Golden out here The Court: You’re you you do. But differ The Court: I know Chicago give business. me the don’t West so know, you everything. come from You RT you? Chicago, don’t diversity jurisdiction over courts Federal Mr. Brown: I do. regionalism. precisely to avoid such actions

795 they plainly awards violate California and And did for whatever. feder The Court: get to let the the ‍‌​‌​‌‌​​​‌‌‌‌​‌‌‌‌​‌​​‌‌​​‌​​‌​​​​‌​‌‌‌​‌‌​‌‌​‌​‍al law. 47 at going Foley, And I’m not Cal.3d 254 Cal. (no It’s Rptr. exhibit 5 is a termination. idea that 765 P.2d 373 tort remedies discharge. kind—or a nothing of the good for of the covenant of breach faith matter law Nothing of the kind. As a of dealing; only fair contract remedies yоu layoff, Exhibit 5. I tell it is in wrongful discharge); available cases of Now, America, they Sawyer Cal.App.3d later June —June v. Bank 83 when of 12th, was, 135, 139, (1978)(no I it in Exhibit 105—tried Cal.Rptr. think 145 623 dam say tried to say my judgment ages for emotional distress available con —in you terminated as of the date action); Dryden Tri-Valley tract Grow If that were layoff. Ridiculous. ers, Cal.App.3d 65 135 percent she wouldn’t have that 50 true (as (1977) rule, damages for vested, got got it. And she and she’s may suffering mental not be awarded for already. Put it in the bank somewhere. contract); Witkin, of B.E. breach Sum right. ahead. All Go Law, mary Contracts § of California 1987) 6, 11, (Baneroft-Whitney, (same); 14. 9th ed. RT 7/29 at Davila, City Bank v. Rivera Honolulu “termi- “Layoff,” “discharge,” (1st Cir.1971) (travel legally defined terms in a nation” are not expenses not under recoverable as costs termination/age discrimination wrongful 1920); Alan Wright, USC Charles Arthur § suit; parties obviously to this suit and the Kane, Mary Kay R. Miller & 10 Federal differently. light defined the terms Practice and Procedure 2677 at 370-71 importance § to these words the attached (West, 1983) (same). Thus, minimum, at a judge plaintiff, the had no business damage definitions, award must be reduced offering let alone his own $24,500. them as law.10 presenting judge’s may It be that none of the com- Fully aware of the errors in the district own, ments, on their constitute reversible calculations, majority court’s none- together, and in the con- error. But taken upholds damage theless the entire award. plaintiff text of a trial where the has They explain that because estimate evidence, virtually presented no relevant $110,000 consequential economic dam- they cast serious doubt on whether the ages by expert Kern’s “necessar- dispassionate reflects a eval- jury’s verdict $137,000 upheld ily speculative,” the can be of the facts. uation Majority “grossly op. excessive.” as not applies a rule majority 778. The thus Damages

IV. previously I aware: law of which was $237,000 errors the defendant bears the risk of clear The district court found calculation, long damage in a so as the “outrageous” verdict and “weird.” $137,000 legally might total have been RT 7/30 at 31. Its final award of erroneous plaintiff. I wonder if the only slightly less so. As an initial mat- awarded to the is ter, way: when a damage rule also works the other judge included his calcu- $8,500 damages pain neglects court to include to which explicit awards of for lation entitled, (RT 12), $10,000 plain- plaintiff legally does the suffering 10/1 at $6,000 (RT 13), long as tiff have to eat the difference as stress traveling judge jury might have awarded Kern’s cost of to California to (RT 12). proper theory? 10/1 at These lesser amount on a litigate her claim Angeles jury Contrary majority’s might worry characterization about how a Los One judge's critique, comments. is not in assimilated error to which I refer majori- expert’s calculations. See the economic judge stated else- notes that Rather, ty op. the error that the at 778 n. 3. Majority that Ada Kern was "laid off.” where majority approves in the district court’s op. at 779. This comment referred to Levolor’s suffering, damages pain and stress award of actions, February however. The above- majority concludes that and travel costs. The judge very quoted passages that the show took a erroneous, ignores and then these awards were letter. view of the June different it, subsequently That the get job.”). judge a This is not the worst of however. any liability damages at Assuming that Levolor had to limit award of ac- failed all, $110,000 supported award cannot be cordingly no reason for this court to sit figure, developed by by the record. This idly by. The district court’s failure was expert, Ada Kern's economic estimates lost implicit that Levolor not an “conclusion” salary from the time Kern and benefits mitigation; prove had failed to lack of 65, period discharged age until of six was error and should corrected. be 74, 79. This amount years. RT 7/27 dischargеd employee duty A has a to reduction for income or benefits reflects no by seeking employ- mitigate damages other by returning might she have earned through the exercise of reasonable ment Levolor, taking job. another In work at or Emp. diligence. Ass’n School California words, other it does not take into account Comm’n, Cal.App.3d v. Personnel potential mitigation damages. (1973); Cal.Rptr. Stone The not much about worried 652, 657, 44 P. 1069 Bancroft, Cal. record, Looking discrepancy. at the recovery The measure of must be clearly affirm erroneous the by any employee amount the has reduced court’s conclusion that “Levolor district earned, diligence or reasonable could with prove had failed to that Kern did not ade- earned, discharge. have since the Califor- quately mitigate damages.” Majority her School, Liability nia at 288. in op. at 779. Where the record does this ends when the fails to take rea- appear? following I conclusion find employment. steps sonable to find new explicit that Ada Kern conclusion had Lines, Inc., Sangster v. United Air See mitigate damages failed to once in back (9th Cir.1980). 633 F.2d 867-68 Ohio: September Ada Kern returned to Ohio in time, Because that she and her hus- there, attempt made no of 1985. Once she off, gone band had taken back job. to look for another RT 7/27 at 113. Ohio, home, original their and she re- damage The award therefore must be re- ceived a letter there and turned it over to duced a reasonable estimation lawyer. her But no effort was made to amount Kern would have earned from that so, view, accept my employment, and date, job.12 had she but looked for a mitigation proper there was no of dam- ages, which there should have been. yet reducing There is another basis for the award here: October judge recog- RT 10/1 at 6. district attempted by mail offer Adа Kern her nized that there no from evidence 58-59; job RT AER at 79. back. 7/29 at a rational could have found which Ohio, When the letter reached her Kern (“Now, mitigation. RT at 18 I 7/30 haven’t respond, simply did not but turned the let- any testimony plaintiff heard that the made moving attorney.13 reasonable efforts after to Ohio to ter over to her RT 7/28 at 19. Kern, approving damage majority, argue Id. that the errors in award. the Octo- job, at 778. ber letter was not an offer for the same but merely job open- a statement that there was a 12. Ada testified that she had a skin rash ing. majority op. See at 778 & n. 4. But the looking prevented for a from "please letter advised Kern to contact ... Levo- might explain Ohio. RT at 113. This you lor Lorentzen as soon as can—we been work, failure to look for but it does not entitle trying you by phone.... reach We have a payroll pay at full her to remain on Levolor’s job opening at would like to this time [we] prevented If the skin rash until retirement. you." discuss with AER at Levolor can work, looking for it would also have Kern from hardly responsible failing present held (Kern prevented working. her from did not responded. a final offer when Kern Con- never claim the rash was caused her dis- assertion, trary majority's response to the charge.) consequential estimate of dam- 65; required ages employment would not have Kern to "return to full until was based on incapable majority op. if Ada Kern was disabled and See n. 4. She California.” working, damage award would have pick up phone. to be had to accordingly. reduced afterwards, Bank, shortly Bean v. Crocker From that date National (9th Cir.1979); precisely what she Barbara earned Linde could have Grossman, mann Schlei & Paul employed Employ had she been have earned would (BNA, February. ment Discrimination Law 492 2d Levolor’s lia Levolor since 1983). ADEA, ed. like other discrimi bility Ada Kern did not re ended when laws, strongly nation favors settlement company’s to the letter. See Billet spond litigation. over 858, 861-62, employer To criticize an Posell, Cal.App.2d 94 ter v. attempting following conciliation (1949) (“If employee 211 P.2d 621 is filing an complaint, EEOC or to excuse employment offered his former for the employee accepting an from conciliation be wages same time and at the same rate of cause she has complaint, filed such a un originally employed or is for which he was very important purpose dermines this protected against loss he is otherwise employment our discrimination laws. The recovery damages from barred majority’s may offhand remark well serve wrongful discharge.”). See also Ford Mo as a disincentive employers to both EEOC, 458 U.S. 102 tor Co. employees attempt conciliation. (In (1982) 73 L.Ed.2d 721 S.Ct. litigation, VII an forfeits his Title happened That Ada Kern to be in Ohio right backpay job if he refuses a “sub job when Levolor’s offer reached her does stantially equivalent to the one he was obligation not relieve her of accept denied.”). If Levolor had a contractual ob forego compensation. the offer or Con- Kern, employ they fulfilled ligation to Ada damages annuity; plain- tract are not an obligation their offer of reem with tiffs cannot insulate themselves from miti- ployment. gation by moving away refusing far employment. come back to resume their majority goes way

The out of its to ex- plain by the time Kern received the damages rule on contract in offer, job complaint she had filed a October California enunciated California Civil Majority op. the EEOC. at 775. with Code 3300: § implication What are we to draw from this obligation arising For breach of an majority pointed opinion? reference contract, damages, from the measure of Either that Levolor is to be criticized for except expressly рrovid- where otherwise job in offering Kern a order to avoid Code, ed this is the amount which will lawsuit, from or that Kern is to be excused compensate party aggrieved for all responding to the offer because of her proximately the detriment caused there- pending litigation. sets a which, ordinary by, or in the course of dangerous precedent way. either likely things, would to result there- from. attempt is the of the EEOC to It function employer employ-

conciliation between interpreted this The California courts dispute employ- ee there is a over an when limiting rule of incorporating section as Age ment decision. Discrimination Baxendale, Eng. 9 Ex. 156 Hadley v. (ADEA) Employment prohibits ag- Act (1854): “[Gjeneral damages that Rep. 145 grieved employee filing from a lawsuit may of contract are be awarded for breach days filing complaint with within 60 after ordinarily confined to those which would 626(d) (1982). breach, the EEOC. 29 U.S.C. or which naturally § arise from the During charged period reasonably contemplated the EEOC might have been in the notifying persons all named the time parties or foreseen purpose waiting contracted, complaint. probable Id. The as the result period “promptly Savings is to allow the EEOC to Federal & breach.” Glendale any alleged Heights eliminate unlawful Dev. seek to Loan Assoc. v. Marina View 101, 125, Co., 135 Cal.App.3d practice informal methods concilia- 66 added). Id.; B.E. conference, (1977)(emphasis See also tion, persuasion.” Law, Conclusion Witkin, Summary California 9th ed. (Bancroft-Whitney, Contracts § Corbin, 5 Cor- (same); Linton 1987) Arthur sympathetic plaintiff. She Kern is a Ada (West, seq. et bin Contracts § years, almost six Levolor for worked Jaeger, Willi- 1964)(same); H.E. Walter highest perform- company’s achieving the Voorhis, (Baker, ston on Contracts § warning, on her 59th rating. ance Without Farnsworth, 1968) (same); E. Allan 3d ed. By a laid her off. birthday, company (Little, Brown at 874 12.14 Contracts § coincidence, lost his her husband cruel (Second)of Con- 1982)(same); Restatement shortly thereafter. (same). (1981) tracts § have suffered Kern and husband Kern’s relation- relating to The evidence jury had no difficul- hardship; certainly the support the con- ship Levolor cannot But courts sympathy. their ty expressing “prob- to Ohio was that her move clusion luckless; this compensate the sit to do not the con- when of the breach able result” mediate Courts Forest. is not Sherwood testi- Ada Kern’s husband made. tract was each must see that parties, and between by the brought on move was fied that the fairly. The law does treated side is her dis- resulting from hardship financial Con- wealth transfers. unjustified sanction at 28-29. RT 7/27 charge and his own. trial, prevail in order to sequently, job lost of her husband’s The contribution injuries prove must plaintiff discharge as negates Ada Kern’s probably of the defendant’s by some action caused of the move. proximate cause imposed by law. duty of a abrogation in 1979 event, hardly “probable” it was working for Levolor began when Kern later,

that, years laid off six if she were burden; the meet her Ada Kern failed to months move out within she would evidence ration- to consider the jury failed is thus not move to Ohio Ada Kern’s state. to calculate court failed ally; the district calculating dam- properly considered appeals The court of damages properly. ages. these errors. responsibility to correct has a engines of fairness are the Rules of law suspended rule in Billetter Nor is the principal courts; among the they ‍‌​‌​‌‌​​​‌‌‌‌​‌‌‌‌​‌​​‌‌​​‌​​‌​​​​‌​‌‌‌​‌‌​‌‌​‌​‍are would moving to California back because citizens, employers by which mechanisms offered Ada hardship. Levolor entail some their lives. employees, order no less than company is Kern her back. sympathy their majority has allowed (if honoring obligation its precluded from the law. them from for Ada Kern to blind Kern, one) by her own had because I dissent. accept her actions, inconvenient to made it Kern’s gravamen of Ada job. The former compensa- that she deserved

complaint was wrongfully something had

tion for pre- she is offered from her. When

taken suing, she which she was

cisely that over would say that she heard to

cannot be doing paid for stay home and be

rather of her not relieved

nothing. Ada Kern was steps to mini-

duty take all reasonable placed dis- damages she

mize because object of herself and the

tance between

litigation.

Case Details

Case Name: Ada S. Kern v. Levolor Lorentzen, Inc.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 9, 1990

Citation: 899 F.2d 772

Docket Number: 87-6689

Court Abbreviation: 9th Cir.