LOFFA v. INTEL CORP., 153 Ariz. 539 (App. 1987)

738 P.2d 1146

Frank LOFFA, Plaintiff-Appellee, v. INTEL CORPORATION, a California

corporation, Defendant-Appellant.

No. 1 CA-CIV 8810.

Court of Appeals of Arizona, Division 1, Department C.

May 12, 1987.

Appeal from the Superior Court, Maricopa County, Cause No.

C-505446, Howard V. Peterson, J.

Page 540

Francis G. Fanning, Tempe, for plaintiff-appellee.

Snell & Wilmer by Robert J. Deeny, Daniel J. McAuliffe, Lonnie

J. Williams, Jr., Rebecca A. Winterscheidt, Phoenix, for

defendant-appellant.

OPINION

MILTON R. SCHROEDER, Judge Pro Tem.

This is an appeal from a judgment against appellant, Intel

corporation, for breach of contract in terminating

plaintiff-appellee Frank Loffa's employment with Intel. After the

trial court denied Intel's motions for summary judgment and for a

directed verdict, a jury returned a verdict in the amount of

$68,400 against Intel. The trial court denied Intel's motion for

a new trial and for judgment notwithstanding the verdict and

entered judgment for Loffa in the amount of the verdict. Intel

then brought this appeal. We affirm.

Frank Loffa was employed with Intel as an electrician

technician from June, 1980, until November 9, 1981, when Intel

discharged Loffa from employment. Loffa contends this discharge

breached his employment contract with Intel. Intel's position is

that this discharge was justifiable because, first, its

employment relationship with Loffa was "at will" and could be

terminated at any time for any reason; and second, if an

employment relationship other than "at will" existed, Intel

correctly observed all the procedures called for in its

Page 541

disciplinary procedures to discharge Loffa for "gross

misconduct." In this appeal, as in its motions described above,

Intel contends it was entitled to judgment as a matter of law on

both issues.[fn1]

The events that gave rise to Loffa's dismissal occurred on

Wednesday, November 4, 1981. While Loffa was engaged in a work

task with another employee, yelling back and forth in a

mock-harassing, bantering manner, Jim Corbitt, an assistant

supervisor, intervened and directed Loffa to stop telling his

co-worker what to do. An argument developed between Loffa and

Corbitt during which Loffa suggested that they "go outside."

Corbitt put his hand on Loffa's shoulder saying they should go

see their supervisor, Luther Disney, prompting a response from

Loffa that he would "break Corbitt's head" if he did not take his

hand off him. Corbitt reported the incident to Disney, who in

turn notified Ann Nelson, a personnel administrator, of the

matter. Both Disney and Nelson investigated the circumstances.

Later the same day, Disney met with Loffa and suspended him until

the investigation was completed. Nelson and Disney continued

their consideration of the incident during the remainder of the

week and involved other management officers of Intel in

discussions about it. Nelson discussed it with her superior,

Shirley Kerfoot, who was the personnel administration manager.

Disney consulted with his supervisor, Ron Williams, and also

spoke with Ed Booth who was Williams' boss. On Monday, November

9, 1981, Loffa met with Disney and Williams, and Disney told him

he was dismissed. At Loffa's exit interview on Monday, Nelson

recorded the reason for the discharge as "unacceptable conduct -

threatening assistant supervisor."

When Loffa began employment with Intel, he signed a one-page

form document entitled "Employee Agreement." This document

obligated Loffa to work faithfully for Intel and required him to

protect the trade secrets and other property of Intel. The key

paragraph for the purposes of this litigation stated:

5. This Agreement (a) survives my employment by

INTEL, (b) does not in any way restrict my right or

the right of INTEL to terminate my employment, (c)

inures to the benefit of successors and assigns of

INTEL, and (d) is binding upon my heirs and legal

representatives.

The document contained no reference to employee disciplinary

procedures. It neither referred to other documents or policies as

constituting part of the employment agreement nor excluded other

documents or policies from the agreement. As part of the

orientation for new employees, however, Loffa received a package

of materials that included a document entitled "Our Procedures,

Your Responsibility." This document had a section on "Employee

Conduct" that stated:

The company regards certain kinds of conduct as

unacceptable. An employee who fails to meet normal

work standards, takes extended breaks and lunches,

does poor quality work, fails repeatedly to meet time

commitments, or is unwilling to perform assigned

duties, is performing unsatisfactorily. Supervisors

will issue disciplinary warnings to give such an

employee an opportunity to meet proper standards. The

usual procedure is that an employee receives one oral

warning, to be followed by one or two written

warnings prior to dismissal; however, alcohol

consumption, drug abuse, or engaging in gambling on

Intel premises are strictly prohibited and will be

cause for immediate termination.

Theft, insubordination, being under the influence

of alcohol or drugs, unwillingness to perform

assigned duties, gross

Page 542

carelessness, negligence of duties, falsification of

work records, failure to observe safety regulations

and altercations involving customers or other

employees are examples of serious misconduct and are

cause for disciplinary action up to and including

termination.

The orientation package also included a two-page statement of

"Welcome" which said:

We are proud that although Intel operates in many

different parts of the world, none of our employees

are represented by labor unions. We believe this

means that Intel employees feel they get a "fair

shake" without any need to involve outsiders.

The orientation for new employees included a verbal review of

the company's disciplinary policy. The policy is stated in a

company document entitled "Non Exempt Discipline Policy." The

policy establishes a progressive disciplinary process for most

cases that begins with a verbal warning, advances to written

warnings, and then in the event of continued problems, can result

in termination of the employee with the approval of the

department manager and a personnel administrator. In addition,

there is a category of conduct in the policy for which Intel may

terminate an employee without prior warning. When there is

"gross" or "severe" misconduct, the employee may be terminated

without warnings, but in such a case the termination must have

the approval of both the department manager and the personnel

administration manager. The relevant section of the policy is ¶

4.5.3 which defines "Gross Misconduct" as follows:

In cases of severe misconduct, an employee can be

terminated without warnings. Approvals of the

department manager and the personnel administration

manager are required.

At the time of Loffa's dismissal, the personnel administration

manager was Shirley Kerfoot, to whom Ann Nelson (a personnel

administrator) reported. Loffa's department manager was Ron

Williams, to whom Luther Disney reported.

The trial court instructed the jury that the basic contractual

relationship between employer and employee was one of

"employment-at-will," which could be terminated "by either party

at any time for any reason or for no reason," but that the jury

could find that "personnel manuals, employer policy statements

and memoranda, as well as other employer actions can be regarded

in fact as incorporated into and made a part of any employment

contract." The court told the jury it was the jury's task to

determine whether anything other than an employment-at-will

relationship existed and, if it did, to then decide what

constituted the contract of the parties. The jury could consider,

in addition to the document entitled "Employee Agreement," the

company's "Non Exempt Discipline Policy," the document entitled

"Our Procedures, Your Responsibility," and "practices, customs

and/or procedures applicable to the employment relationship." If

the jury determined the employment was at will, the court

directed the jury to enter a verdict for the defendant. If it

found some other contractual relationship, the court instructed

the jury to determine if Intel had breached the contract, but the

court removed from consideration by the jury whether an

altercation occurred. The instructions advised the jury Intel had

"reserved the right to determine whether an `altercation' between

plaintiff and another employee occurred." The court further

instructed that "such conduct could properly be regarded by the

defendant employer as `gross' or `severe' misconduct . . ." as

used in ¶ 4.5.3 of the discipline policy.

I.

Intel argues the court could not permit the jury to consider if

the company's personnel manual, discipline policy or other

practices, created a termination procedure binding on Intel in

its dealings with Loffa because the document entitled "Employee

Agreement" which Loffa signed on entering employment constituted

an express agreement that the employment relationship was "at

will." The critical language in the agreement, in Intel's view,

is ¶ 5 of the document which provides that "This

Page 543

Agreement . . . does not in any way restrict my right or the

right of INTEL to terminate my employment. . . ." Having agreed

Intel shall not be restricted in terminating his employment,

Loffa cannot look to other documents and practices of Intel to

contractually limit his employer's ability to discharge him.

In Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370,

710 P.2d 1025 (1985) and Leikvold v. Valley View Community

Hospital, 141 Ariz. 544, 688 P.2d 170 (1984), the Arizona

Supreme Court considered the circumstances when employer

disciplinary procedures reflected in personnel manuals, employer

statements, and other employer practices modify what otherwise

would be an employment-at-will relationship by limiting the

employer's ability to terminate employment to the conditions

established in the manuals, memoranda and practices. These two

decisions require an affirmance of the trial court.

In Leikvold, the supreme court ruled that Arizona would not

regard a contract of employment for an indefinite duration as a

contract for employment-at-will as a matter of law. Finding an

"at will" employment relationship was a matter of contract

interpretation, not a substantive rule of law, which presented a

question of fact on what constituted the terms of the employment

agreement. Thus, the plaintiff employee in Leikvold was

entitled to have a jury decide whether the terms of her

employer's personnel manual became part of the terms of her

employment contract. Likewise, in Wagenseller, the plaintiff

employee was entitled to have a jury determine if her employer's

personnel manual established an implied term that limited her

employer's right to discharge her. In both cases, the court held

the grant of summary judgment for the employer was error because

there was a question of fact as to the terms of the employment.

In both cases the employer argued, as does Intel, that the

policies announced in the personnel manual did not constrain the

employer's ability to discharge an employee for any reason or no

reason at all. The supreme court rejected these arguments

explaining in Leikvold, in language repeated with approval in

Wagenseller, as follows:

Employers are certainly free to issue no personnel

manual at all or to issue a personnel manual that

clearly and conspicuously tells their employees that

the manual is not part of the employment contract and

that their jobs are terminable at the will of the

employer with or without reason. Such actions, either

not issuing a personnel manual or issuing one with

clear language of limitation, instill no reasonable

expectations of job security and do not give

employees any reason to rely on representations in

the manual. However, if an employer does choose to

issue a policy statement, in a manual or otherwise,

and, by its language or by the employer's actions,

encourages reliance thereon, the employer cannot be

free to only selectively abide by it. Having

announced a policy, the employer may not treat it as

illusory.

Wagenseller, 147 Ariz. at 382-83, 710 P.2d at 1037-38 (quoting

Leikvold, 141 Ariz. at 548, 688 P.2d at 174).

As both Leikvold and Wagenseller make clear, the provisions

of the employer's personnel manual may create a term of the

employment agreement without any showing of particular reliance

on the manual by the employee, without any specific words

incorporating the manual into the agreement, and notwithstanding

that in other respects the employment relationship would be

viewed as employment-at-will. Wagenseller, 147 Ariz. at 383,

710 P.2d at 1038; Leikvold, 141 Ariz. at 548, 688 P.2d at 174.

Whether a personnel manual has modified the employment

relationship is a question of fact "to be discerned from the

totality of the parties' statements and actions regarding the

employment relationship." Wagenseller, 147 Ariz. at 383, 710

P.2d at 1038. The jury may look to "[t]he employer's course of

conduct and oral representations regarding the policy, as well as

the words of the policy itself. . . ." Wagenseller, 147 Ariz.

at 383, 710 P.2d at 1038.

These teachings of Leikvold and Wagenseller aptly apply to

Loffa's employment

Page 544

relationship with Intel. The evidence showed Intel encouraged

employee reliance on its disciplinary procedures by its practices

in the orientation of new employees which included reference to

its disciplinary procedures in the written materials given new

employees and verbal review of those procedures as part of the

orientation. The language of the "Non Exempt Discipline Policy"

itself contains nothing to alert an employee to place no reliance

on the statements in that policy and to view such discipline

policy as only a unilateral expression of employer intention that

is subject to revocation or change at any time, in any manner, at

the pleasure of the employer. To the contrary, the language of

the policy and the conduct of Intel in adopting the policy and

explaining it to its employees could properly be viewed by the

jury as indicating that the policy was intended to be part of the

employment agreement.

In our view, the general statement in the "Employee Agreement"

that "[t]his Agreement . . . does not in any way restrict my

right or the right of Intel to terminate my employment . . ." is

not enough to remove the issue of the effect of Intel's "Non

Exempt Discipline Policy" on the employment relationship from the

jury's consideration. In the first place, even assuming the

provision meets the "conspicuous" standard required by Leikvold

and Wagenseller, the language of the agreement makes no

reference to the discipline policy. The only reference is to

"[t]his Agreement" (emphasis added), a reference that could

reasonably be understood as limited to the document labeled

"Employee Agreement" in order to make clear that employment could

be terminated for reasons other than breach of the specific

provisions of that document relating to protection of trade

secrets, copyrights, and so forth. There is no express

stipulation that the document labeled the "Employee Agreement" is

the exclusive embodiment of the terms of the contract and

forecloses both Intel and its employees from modification or

supplementation of the terms of their relationship by further

agreement either in a writing expressly assented to by the

parties or in policy statements or other conduct of Intel; nor is

the "Employee Agreement" document so comprehensive on its face in

covering all aspects of the employment relationship as to compel

the view that it impliedly excluded any modification or

supplementation of the terms of that relationship. Given the

instructions in Leikvold and Wagenseller that a notice should

be "clearly and conspicuously" contained in the personnel manual

itself in order to negate potential employee reliance, it is

doubtful that even a more direct statement in the document titled

"Employee Agreement" would be sufficient by itself to remove the

issue of fact of what are the contract terms from the jury. But

we need not decide that question because this provision of the

Intel agreement is not stated so "clearly and conspicuously" as

to justify the court's construing the employment contract as a

matter of law. See Leikvold, 141 Ariz. at 548, 688 P.2d at 174.

Intel argues that its employment agreement differs from the

agreements litigated in Leikvold and Wagenseller because the

employment-at-will relationship was expressly created by a

written agreement. From this Intel argues there can be no implied

contract where the parties have expressly contracted with respect

to the same subject matter. In advancing this position, Intel

relies on Reid v. Sears, Roebuck & Co., 790 F.2d 453 (6th Cir.

1986) as holding that there cannot be an implied contract

restricting the at-will employment relationship where there is an

express contract stating that the relationship may be terminated

at will, with or without cause.

In Reid, a case decided under the law of Michigan, three

former employees sued Sears for breach of contract claiming they

were discharged without a showing of good cause. The federal

court affirmed the entry of summary judgment for Sears. In that

case, all of the employees had signed an application for

employment that contained the following language:

In consideration of my employment, I agree to conform

to the rules and regulations of Sears, Roebuck and

Co., and my employment and compensation can be

terminated with or without cause, and

Page 545

with or without notice, at any time, at the option of

either the Company or myself. I understand that no

store manager or representative of Sears, Roebuck and

Co., other than the president or vice president of

the Company, has any authority to enter into any

agreement for employment for any specified period of

time, or to make any agreement contrary to the

foregoing.

Reid, 790 F.2d at 456. This language is significantly different

from that in the Intel employment agreement. The Sears clause

bluntly states that the employer reserved the right to discharge

without cause or prior notice, but the Intel phrase is more

ambiguous in referring only to an unelaborated "right of INTEL to

terminate my employment." The Sears provision governs the entire

employment relationship, but the Intel document may reasonably be

read as having a narrower application because of the limited

scope of the subjects referred to in the document and the express

reference to "[t]his Agreement." The Sears document plainly

contains an agreement on procedures that must be followed to

amend the employment agreement and gives notice the agreement may

be modified only in the limited circumstances where there is the

approval of the president or vice president of the company, but

the Intel clause is silent on this subject.[fn2]

Further, the emphasis in Leikvold, repeated with firm

approval in Wagenseller, is that the nature of the employment

relationship is a question of fact to be determined by the jury.

When this is coupled with the supreme court's admonition in those

cases that employers who issue policy manuals must exercise care

to alert their employees through language "clearly and

conspicuously" stated in the policy manual itself if it is

intended that the policies are to have no binding effect, there

is a substantial question whether even a statement with the

specificity of that in Reid would meet the supreme court's

conditions for when the factual issues of the nature of the

contract may be kept from the jury. We need not decide this

question on this record, but note it to make clear that our

discussion of Reid should not be interpreted as accepting the

Reid analysis.

The terms of the employment agreement are "to be discerned from

the totality of the parties' statements and actions regarding the

employment relationship." Wagenseller, 147 Ariz. at 383, 710

P.2d at 1038. Although Intel may have put the label, "Employee

Agreement," on one of its documents, the affixation of this label

does not avoid the need for a factual determination of what are

the terms of the parties' agreement based upon all of their

statements, representations, and course of performance. See

Leikvold, 141 Ariz. at 548, 688 P.2d at 174. If there is a

factual dispute as to whether one statement has been

supplemented, modified, or contradicted by other actions of the

parties, as was the case here, it is the jury's province to

resolve it. Although the parties may have agreed tacitly or

expressly that their relationship will have some of the

characteristics of employment-at-will, the lesson of Leikvold

and Wagenseller is that such an agreement is not inconsistent

with a jury finding the parties also agreed to supplement or

modify their employment contract in accordance with the

employer's stated personnel policies and procedures. Thus, the

trial court properly instructed the jury that it should decide

what constituted the contract of the parties and could consider

not only the document entitled "Employee

Page 546

Agreement," but also other documents of the company, such as the

"Non Exempt Discipline Policy," and the company's customs and

practices.[fn3]

Accordingly, we conclude that the trial court properly

submitted to the jury the issue of whether Loffa's employment

agreement with Intel included a term limiting the circumstances

under which Intel could discharge Loffa to those where Intel

followed the provisions of its "Non Exempt Discipline Policy"

including ¶ 4.5.3.

II.

Intel also argues that there was no evidence to support a

judgment that it violated ¶ 4.5.3 of its discipline procedures in

terminating Loffa. As indicated above, since the trial court

ruled that the employer reserved the discretion to determine if

Loffa's conduct amounted to "gross" or "severe" misconduct, the

critical issue for the jury was whether the approvals of the

department manager and the personnel administration manager had

been obtained as that paragraph of the discipline procedures

required.

Luther Disney, Loffa's immediate supervisor, and Ann Nelson,

personnel administrator, were the Intel representatives most

involved in the decision to terminate Loffa. Neither qualified to

approve the action under ¶ 4.5.3. That policy called for the

approval of Ron Williams, the department manager, and Shirley

Kerfoot, the personnel administration manager. In requiring their

approval, the procedures under ¶ 4.5.3 for termination without

prior warning were different from the approvals needed for a

dismissal in circumstances where the company had given prior

warnings. As a personnel administrator, Ann Nelson could approve

the personnel action in the latter case. There was testimony that

the preponderant proportion of discharges were those that could

be handled by the personnel administrator without higher

authority, as well as other evidence to suggest Nelson and Disney

might have thought the approvals under the more routine procedure

were all that the discipline policy required.

Various Intel officials testified to the steps taken during the

investigation of the Loffa matter and the participation of such

officials in the final decision to terminate. Ann Nelson

testified she discussed the matter with her superior, Shirley

Kerfoot, on two occasions and obtained her approval for the

dismissal. Shirley Kerfoot expressed her approval of the action.

Luther Disney testified that Ron Williams gave Disney authority

to take action. Disney and Ed Booth, Ron Williams' superior,

testified that Booth had concurred in the action. Ron Williams

was equivocal in relating his position indicating only that he

"did

Page 547

not disagree," and he recounted that on the Monday when the

termination occurred he told Disney he would attend the meeting

with Loffa but would not participate in it.

Loffa sharply attacks this record as inadequate to show

approval by Williams, the department manager, and as raising

credibility issues with respect to the testimony of the others.

Specifically, Loffa argues the jury was entitled to disbelieve

the Nelson-Kerfoot testimony of Kerfoot's approval because

Kerfoot's involvement in the decision was limited to two

conversations with Nelson with no independent investigation on

her part; Kerfoot's name did not appear on the personnel action

notification that is routinely processed when an employee is

terminated; and Loffa testified that when he encountered Kerfoot

several days after his discharge, Kerfoot professed ignorance of

his firing. With respect to Booth, although Loffa made no issue

as to Booth's ability as Williams' superior to supply the

required authorization, Disney's explanation of Booth's approval

could be viewed as indicating little more than acquiescence.[fn4]

Because Booth bypassed Ron Williams, who was the direct

supervisor of Loffa, to give approval to Disney, Loffa suggested

the professional relationship between Booth, Williams and Disney

raised an issue for the jury to consider as to Booth's

motivations. Finally, the sequence and timing of the actions

taken which began on Wednesday and extended until Monday could

cast doubt on the testimony of the Intel officials, who have an

interest in supporting the action taken by their employer, that

the approvals occurred as recounted by the witnesses at the

trial.

It is not our function to resolve the conflicts in testimony

and issues of credibility. When the sufficiency of the evidence

to support a judgment is questioned on appeal, an appellate court

will examine the record only to determine whether substantial

evidence exists to support the action of the court below.

Whittemore v. Amator, 148 Ariz. 173, 175, 713 P.2d 1231, 1233

(1986). The credibility of the witnesses was properly for the

jury to determine. Worthington v. Funk, 7 Ariz. App. 595,

442 P.2d 153 (1968). If a reasonable person could reach the verdict

arrived at below viewing the evidence in the light most favorable

to sustaining the verdict, the trial court's denial of a motion

for judgment notwithstanding the verdict must stand. Maxwell v.

Aetna Life Ins. Co., 143 Ariz. 205, 211, 693 P.2d 348, 354 (App.

1984).

Taking into account the credibility questions, there was

sufficient evidence for the jury to conclude the proper approvals

for Loffa's dismissal had not been obtained. First, as to Shirley

Kerfoot, Loffa's testimony of her denial of knowledge of his

dismissal supports his view that she never gave approval. There

is additional support for this view from Kerfoot's limited

participation in the decision making process and the evidence

Nelson and Disney may have mistakenly thought higher approvals

were not needed. Second, as to Ron Williams, Williams' own

testimony about the degree of his involvement in the decision was

sufficiently equivocal for the jury to conclude he did not

approve. Third, although there was evidence of approval by Booth,

the approval by him in substitution for that of Williams could be

viewed as a departure from the company's normal procedures that a

jury was entitled to question. Once again, the absence of

signatures on the personnel action notice of the persons

authorized to approve the dismissal could be interpreted as

evidence those approvals had not been given.[fn5] Finally, of

course, Kerfoot, Nelson, Disney, and Booth were all Intel

employees at the time of the trial, and the jury was entitled to

discount their testimony if it concluded this employment

relationship

Page 548

affected their credibility. Graham v. Vegetable Oil Products

Co., 1 Ariz. App. 237, 401 P.2d 242 (1965).[fn6]

III.

Loffa has requested attorneys' fees on appeal pursuant to

A.R.S. § 12-341.01. We grant this request and direct appellee to

file an affidavit in compliance with Rule 21(c), Arizona Rules of

Civil Appellate Procedure.

The judgment and rulings of the trial court are affirmed.

CORCORAN, P.J., and EUBANK, J., concur.

NOTE: The Honorable MILTON R. SCHROEDER was authorized to

participate in this case by the Chief Justice of the Arizona

Supreme Court pursuant to Ariz. Const. Art. VI, § 3 and A.R.S. §§

12-145 to -147.

[fn1] Loffa has raised a number of cross-issues for consideration

if the judgment is not affirmed. He argues the trial court should

have permitted the jury to consider if Loffa's conduct

constituted "just cause" for dismissal rather than directing the

jury that the employer's characterization of the conduct as

"severe misconduct" was conclusive; should have allowed plaintiff

to explore the prior performance record of the assistant

supervisor who was involved in the dispute to establish that the

company had not dealt with Loffa fairly; and, should have

instructed the jury that Intel had a contractual obligation to

deal fairly and in good faith with Loffa. We do not reach these

issues in light of our affirmance of the judgment.

[fn2] The importance of the specific language in the Sears

application restricting the methods by which the agreement could

subsequently be modified is shown by the court's discussion of

another Michigan case, Schipani v. Ford Motor Co., 102 Mich. App. 600,

302 N.W.2d 307 (1981). In Schipani, the employee had

signed an agreement acknowledging that "my employment is not for

any definite term, and may be terminated at any time, without

advance notice by either myself or Ford Motor Company. . . ."

Schipani, 102 Mich. App. at 610, 302 N.W.2d at 309. The Reid

court concluded the finding of a genuine issue of material fact

as to whether there was reasonable reliance on policy statements

of the Ford Motor Company was justifiable in Schipani, but not

in Reid, because "[t]he Ford disclaimer did not provide that no

employee of Ford other than the president or a vice president of

the company could make a contrary agreement." 790 F.2d at 453.

[fn3] Intel's reliance on Chanay v. Chittenden, 115 Ariz. 32,

563 P.2d 287 (1977), also is misplaced. Intel points to language

in that case which says, "[t]here can be no implied contract

where there is an express contract between the parties in

reference to the same subject matter." 115 Ariz. at 35, 563 P.2d

at 290. This language has no application to the circumstances

before us. First, the "implied contract" term the Chanay court

refused to consider was not a term implied as a matter of fact

from all the circumstances bearing on the intention of the

parties as Leikvold and Wagenseller counsel, but was an

"equitable theory" based in some fashion on the Restatement of

Contracts § 90 that the appellant in Chanay argued would

override as a matter of law even an unambiguous agreement to

create an employment-at-will contract. Unlike the case before us,

the appellant's difficulty in Chanay was that he could point to

no facts indicating anything other than an employment

relationship terminable at will. Second, Leikvold and

Wagenseller require consideration of all the relevant

circumstances, including the parties' representations and course

of conduct, to ascertain the terms of the parties' agreement on

how the employment relationship may be terminated; to the extent

that Chanay rests on a notion that these representations and

course of conduct cannot be so considered, Leikvold and

Wagenseller discredit this reasoning. Third, the Chanay

language does not address, much less suggest, any change in the

well established principle that the existence of a writing which

appears to express the parties agreement does not automatically

foreclose a factual inquiry to establish what the terms of the

contract are. Before a writing can be given such a preclusive

effect, other determinations, which are not necessary for the

purposes of this case to explore, must be made from all of the

relevant evidence as to the parties' intentions. See Reid,

790 F.2d 453, and the discussion in note 2, supra. See also

Restatement (Second) of Contracts § 209 comment c (1981)

("Whether a writing has been adopted as an integrated agreement

is a question of fact to be determined in accordance with all

relevant evidence."); id, §§ 210 and comment b, 212, 222, 223.

[fn4] Disney testified to Booth's authorization for the dismissal

as follows: "Well, he [Booth] said to me, `It sounds to me like

you have covered all the bases. You know what's going on and it

sounds like the right thing to do.'"

[fn5] Intel procedures provide for the initiation of a personnel

action notice (PAN) in order to process an employee dismissal.

The PAN for the Loffa dismissal was signed by Luther Disney and a

clerk on behalf of Ann Nelson. Although Loffa does not argue that

¶ 4.5.3 of the discipline policy requires written approval of the

dismissal, the absence of signatures on the PAN of those

authorized to approve the dismissal is some evidence in support

of Loffa's view that the proper approvals were not obtained. In

this regard, Williams testified the normal company procedure in

terminations was for the department manager to sign the PAN but

the form was never submitted to him in the Loffa matter and he

had not authorized anyone else to act for him.

[fn6] For the reasons given above, we also conclude there was no

clear showing of abuse of discretion that would warrant reversal

of the trial court's denial of defendant's motion for a new

trial. Adroit Supply Co. v. Electric Mut. Liab. Ins. Co.,

112 Ariz. 385, 389, 542 P.2d 810, 814 (1975).