Opinion

GRODIN, J.

After 32 years of employment with See’s Candies, Inc., in which he worked his way up the corporate ladder from dishwasher to vice president in charge of production and member of the board of directors, Wayne Pugh was fired. Asserting that he had been fired in breach of contract and for reasons which offend public policy he sued his former employer seeking compensatory and punitive damages for wrongful termination, and joined as a defendant a labor organization which, he alleged, had conspired in or induced the wrongful conduct. The case went to trial before a jury, and upon conclusion of the plaintiffs case-in-chief the trial court granted defendants’ motions for nonsuit, and this appeal followed.

Standard of Review on Nonsuit

Under established principles, a nonsuit may be granted ‘“only where, disregarding conflicting evidence on behalf of the defendants and giving to plaintiffs evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.’” (O’Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 733 [51 Cal.Rptr. 534, 414 P.2d 830, 16 A.L.R.3d 1]; see also Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 745 [87 Cal.Rptr. 376, 470 P.2d 360].) Applying these principles, we conclude that the trial court erred in granting the nonsuit motions, and reverse.

Summary of the Evidence

We summarize the evidence presented to the jury. The defendant employer is in the business of manufacturing fresh candy at its plants in *316Los Angeles and South San Francisco and marketing the candy through its own retail outlets. The South San Francisco plant is operated under the name See’s Candies, Inc., a wholly owned subsidiary corporation of See’s Candy Shops, Inc., which operates the Los Angeles plant as well. The stock of See’s Candy Shops, Inc., was held by members of the See family until 1972, when it was sold to Blue Chip Stamps Corporation. For convenience, the designation “See’s” will be used to refer to both companies.

Pugh began working for See’s at its Bay Area plant (then in San Francisco) in January 1941 washing pots and pans. From there he was promoted to candy maker, and held that position until the early part of 1942, when he entered the Air Corps. Upon his discharge in 1946 he returned to See’s and his former position. After a year he was promoted to the position of production manager in charge of personnel, ordering raw materials, and supervising the production of candy. When, in 1950, See’s moved into a larger plant in San Francisco, Pugh had responsibility for laying out the design of the plant, taking bids, and assisting in the construction. While working at this plant, Pugh sought to increase his value to the company by taking three years of night classes in plant layout, economics, and business law. When See’s moved its San Francisco plant to its present location in South San Francisco in 1957, Pugh was given responsibilities for the new location similar to those which he undertook in 1950. By this time See’s business and its number of production employees had increased substantially, and a new position of assistant production manager was created under Pugh’s supervision.

In 1971 Pugh was again promoted, this time as vice president in charge of production and was placed upon the board of directors of See’s northern California subsidiary, “in recognition of his accomplishments.” In 1972 he received a gold watch from See’s “in appreciation of 31 years of loyal service.”

In May 1973 Pugh travelled with Charles Huggins, then president of See’s, and their respective families to Europe on a business trip to visit candy manufacturers and to inspect new equipment. Mr. Huggins returned in early June to attend a board of director’s meeting while Pugh and his family remained in Europe on a planned vacation.

Upon Pugh’s return from Europe on Sunday, June 25, 1973, he received a message directing him to fly to Los Angeles the next day and meet with Mr. Huggins.

*317Pugh went to Los Angeles expecting to be told of another promotion. The preceding Christmas season had been the most successful in See’s history, the Valentine’s Day holiday of 1973 set a new sales record for See’s, and the March 1973 edition of See’s Newsletter, containing two pictures of Pugh, carried congratulations on the increased production.

Instead, upon Pugh’s arrival at Mr. Huggin’s office, the latter said, “Wayne, come in and sit down. We might as well get right to the point. I have decided your services are no longer required by See’s Candies. Read this and sign it.” Huggins handed him a letter confirming his termination and directing him to remove that day “only personal papers and possessions from your office,” but “absolutely no records, formulas or other material”; and to turn in and account for “all keys, credit cards, et cetera.” The letter advised that Pugh would receive unpaid salary, bonuses and accrued vacation through that date, and the full amount of his profit sharing account, but “No severance pay will be granted.” Finally, Pugh was directed “not to visit or contact Production Department employees while they are on the job.”

The letter contained no reason for Pugh’s termination. When Pugh asked Huggins for a reason, he was told only that he should “look deep within [him]self” to find the answer, that “Things were said by people in the trade that have come back to us.” Pugh’s termination was subsequently announced to the industry in a letter which, again, stated no reasons..

When Pugh first went to work for See’s, Ed Peck, then president and general manager, frequently told him: “if you are loyal to [See’s] and do a good job, your future is secure.” Laurance See, who became president of the company in 1951 and served in that capacity until his death in 1969, had a practice of not terminating administrative personnel except for good cause, and this practice was carried on by his brother, Charles B. See, who succeeded Laurance as president.

During the entire period of his employment, there had been no formal or written criticism of Pugh’s work.1 No complaints were ever *318raised at the annual meetings which preceded each holiday season, and he was never denied a raise or bonus. He received no notice that there was a problem which needed correction, nor any warning that any disciplinary action was being contemplated.

Pugh’s theory as to why he was terminated relates to a contract which See’s at that time had with the defendant union.2 Prior to 1971, the union represented employees of See’s as well as employees of certain other candy manufacturers in a multiemployer bargaining unit, and there existed a collective bargaining agreement between the union and an employer association representing those manufacturers. In addition, there existed for many years prior to 1971 a supplemental agreement between the union and See’s which contained provisions applicable to See’s only.

In 1968 the supplemental agreement contained a new rate classification which permitted See’s to pay its seasonal employees at a lower rate. At a company meeting prior to the 1968 negotiations, Pugh had objected to the proposed new seasonal classification on the grounds that it might make it more difficult to recruit seasonal workers, and create unrest among See’s regular seasonal workers who had worked previously for other manufacturers at higher rates. Huggins overruled Pugh’s objection and (unknown to Pugh) recommended his termination for “lack of cooperation” as to which Pugh’s objection formed “part of the reason.” His recommendation was not accepted.

The 1968 association and supplemental agreements expired in 1971. Thereafter See’s negotiated with the union separately, and not as a part of any employer association.

The 1971 agreement expired in 1973. In April of that year, Huggins asked Pugh to be part of the negotiating team for the new union contract. Pugh responded that he would like to, but he was bothered by the possibility that See’s had a “sweetheart contract” with the union. In response, someone banged on the table and said, ‘“You don’t know what the hell you are talking about.’” Pugh said, “Well, I think I know what I am talking about. I don’t know whether you have a sweetheart contract, but I am telling you if you do, I don’t want to be involved because they are immoral, illegal and not in the best interests of my employees.” *319At the trial, Pugh explained that to him a “sweetheart contract” was “a contract whereby one employer would get an unfair competitive advantage over a competitor by getting a lower wage rate, would be one version of it.” He also felt, he testified, that “if they in fact had a sweetheart contract that it wouldn’t be fair to my female employees to be getting less money than someone would get working in the same industry under the same manager.”

The union’s alleged participation in Pugh’s termination was in the form of a statement attributed to Mr. Button (the individual who succeeded Pugh as production manager) at a negotiating meeting between the company and the union in June 1973. According to one witness, Mr. Button stated at the commencement of the meeting, “Now we’ve taken care of Mr. Pugh. What are you going to do for us.”

Discussion

A. Historical Background.

The law of the employment relationship has been, and perhaps still is, in the process of continuing evolution. The old law of master and servant, which held sway through the 18th century and to some extent beyond, viewed the relationship as primarily one of status rather than of contract. While agreement gave rise to the relationship and might establish certain of its terms, it was “custom and public policy, not the will of the parties, [which] defined the implicit framework of mutual rights and obligations.” (Selznick, Law, Society and Industrial Justice (1969) p. 123.)

The essence of the relationship as so defined drew its contours from the model of the household — in which, typically, the servant worked, the master had general authority to discipline the servant, and it was the servant’s duty to obey. (Id., at pp. 124-125.) At the same time, the master had certain responsibilities for the servant’s general welfare. (Id., at p. 128.) The relationship was thus in a sense paternalistic. And it was not terminable at will; rather, there existed a presumption (in the absence of contrary agreement) that employment was for a period of one year. (Id., at p. 125.)

With the industrial revolution in the 19th century the law of master and servant underwent a gradual remodeling, primarily at the hands of *320the judiciary. Primary emphasis came to be placed, through contract doctrine, upon the freedom of the parties to define their own relationship. “The emphasis shifted from obligation to freedom of choice.” (Id., at p. 131.) The terms of the contract were to be sought in voluntary agreement, express or implied, the employee being presumed to have assented to the rules and working conditions established by the employer. (Ibid.)

In light of the generally superior bargaining power of the employer, “the employment contract became [by the end of the nineteenth century] a very special sort of contract — in large part a device for guaranteeing to management unilateral power to make rules and exercise discretion.” (Ibid.) And management’s unilateral power extended, generally, to the term of the relationship as well. The new emphasis brought with it a gradual weakening of the traditional presumption that a general hiring (i.e., one without a specific term) was for a year, and its replacement by the converse presumption that “a general or indefinite hiring is prima facie a hiring at will.” (Wood, A Treatise on the Law of Master and Servant (1877) § 134, fn. 49.)3 In California, this presumption is reflected in Labor Code section 2922, which provides: “An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.”

The recognized inequality in bargaining power between employer and individual employee undergirded the rise of the labor unions and the institutionalization of collective bargaining.4 And through collective bargaining, unions have placed limitations on the employer’s unilateral right of termination. Under most union contracts, employees can only be dismissed for “just cause,” and disputes over what constitutes cause for dismissal are typically decided by arbitrators chosen by the parties.5 *321Collective bargaining agreements, however, cover only a small fraction of the nation’s work force,6 and employees who either do not or (as in the case of managerial employees such as Mr. Pugh) cannot form unions7 are left without that protection.

In recent years, there have been established by statute a variety of limitations upon the employer’s power of dismissal. Employers are precluded, for example, from terminating employees for a variety of reasons, including union membership or activities, race, sex, age or political affiliation.8 Legislatures in this country have so far refrained, however, from adopting statutes, such as those which exist in most other industrialized countries,9 which would provide more generalized protection to employees against unjust dismissal. And while public employees may enjoy job security through civil service rules10 and due process,11 the legal principles which give rise to these protections are not directly applicable to employees in private industry.12

Even apart from statute or constitutional protection, however, the employer’s right to terminate employees is not absolute. “The mere fact that a contract is terminable at will does not give the employer the absolute right to terminate it in all cases.” (Patterson v. Philco Corp. *322(1967) 252 Cal.App.2d 63, 65 [60 Cal.Rptr. 110].) Two relevant limiting principles have developed, one of them based upon public policy and the other upon traditional contract doctrine. The first limitation precludes dismissal “when an employer’s discharge of an employee violates fundamental principles of public policy” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330]), the second when the discharge is contrary to the terms of the agreement, express or implied. Appellant relies upon both these principles in contesting his termination here.

B. Public Policy Limitation.

Appellant contends that his evidence established a prima facie case of retaliatory termination for reasons which offend public policy in three respects. First, he contends that the evidence tended to show he was terminated because he refused to participate in negotiations for a union contract which would have violated state and federal public policy against restraint of trade; second, that he was terminated because he refused to participate in negotiations for a union contract which violated declared public policy against discrimination based on sex; and third, that he was terminated for reasons which violate the state’s policy favoring the exercise of a company director’s duty of inquiry.

The first contention finds doctrinal support in the Supreme Court decision in Tameny v. Atlantic Richfield Co., supra. In Tameny, the court held “that an employer’s authority over its employee does not include the right to demand that the employee commit a criminal act to further its interests, and an employer may not coerce compliance with such unlawful directions by discharging an employee who refuses to follow such an order.” (27 Cal.3d at p. 178.) A pleading which alleged that the plaintiff was terminated because he refused to participate in activity which would have constituted a violation of the antitrust laws was held to state a cause of action.

Appellant’s evidence, however, fails to support application of that doctrine. The trial court, in granting the nonsuit, reasoned that there was no evidence that appellant in fact refused or indicated he would refuse to participate in negotiations for a new agreement, or that the terms for which he would be expected to negotiate would pose the same legal problems as those which appellant claimed to inhere in the prior agreement. Assuming, however, that there was sufficient evidence from *323which the jury could have filled those evidentiary gaps by inference, there is a more fundamental flaw in appellant’s argument. The premise upon which he sought to establish, through expert testimony, that the prior supplemental agreement violated the antitrust laws, was that its existence was kept secret from the other employer members of the multiemployer bargaining unit. Assuming, arguendo, that the premise had legal merit, the factual predicate for that premise is missing. Appellant established only that one employer was unaware of the existence of the supplemental agreement, and that employer was not a member of the multi-employer group. Moreover, by 1973, when appellant was asked to be a member of the negotiating committee, the 1968 agreement had long since expired, and See’s was no longer bargaining through the association. Thus, the trial court did not err in granting nonsuit on that theory.

Appellant’s second theory is that the supplemental agreement in effect at the time of his termination discriminated against women in violation of the state’s Fair Employment Practices Act (now Fair Employment and Housing Act, Gov. Code, § 12900 et seq.), by allowing payment of a lower wage rate to seasonal employees who were, in fact, women. In support of that theory, an attorney with the California Fair Employment Practices Commission testified that on the basis of certain factual assumptions the contract as applied would violate state law.

Assuming, for purposes of analysis, that there was sufficient evidence to establish the prima facie illegality of the supplemental agreement under the Fair Employment Practices Act, appellant’s theory again fails for lack of evidentiary support. In addition to the gaps noted in connection with appellant’s antitrust theory, there was no evidence that appellant ever communicated to See’s his belief or opinion that the existing contract discriminated on the basis of sex.13

*324Appellant’s third theory is premised on section 309, subdivision (a) of the Corporations Code, which requires of corporate directors that they perform the duties of their office “with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.” (Italics added.) The evidence does not reasonably support a determination, however, that appellant was engaged as a director in the process of inquiry. (Cf. Becket v. Welton Becket & Associates (1974) 39 Cal.App.3d 815 [114 Cal.Rptr. 531].)14

We conclude that appellant did not establish a prima facie and cognizable case of wrongful termination based upon the public policy theories which he advanced.

C. Contract Limitations.

The presumption that an employment contract is intended to be terminable at will is subject, like any presumption, to contrary evidence. This may take the form of an agreement, express or implied, that the relationship will continue for some fixed period of time.15 Or, and of greater relevance here, it may take the form of an agreement that the employment relationship will continue indefinitely, pending the occur*325renee of some event such as the employer’s dissatisfaction with the employee’s services or the existence of some “cause” for termination.16 Sometimes this latter type of agreement is characterized as a contract for “permanent” employment,17 but that characterization may be misleading. In one of the earliest California eases on this subject, the Supreme Court interpreted a contract for permanent employment as meaning “that plaintiffs’ employment. . .was to continue indefinitely, and until one or the other of the parties wish, for some good reason, to sever the relation.” (Lord v. Goldberg, supra, 81 Cal. 596, 601-602, italics added.)

A contract which limits the power of the employer with respect to the reasons for termination is no less enforcible because it places no equivalent limits upon the power of the employee to quit his employment. “If the requirement of consideration is met, there is no additional requirement of. . . equivalence in the values exchanged, or ‘mutuality of obligation.’” (Rest.2d Contracts, § 81 (Tent. Draft No. 2, 1965); 1A Corbin on Contracts (1963) § 152, pp. 13-17; see Chinn v. China Nat. Aviation Corp. (1955) 138 Cal.App.2d 98 [291 P.2d 91]; Toussaint v. Blue Cross & Blue Shield of Mich. (1980) 408 Mich. 579, 600 [292 N.W.2d 880, 885].)

Moreover, while it has sometimes been said that a promise for continued employment subject to limitation upon the employer’s power of termination must be supported by some “independent consideration,” i.e., consideration other than the services to be rendered,18 such a rule is contrary to the general contract principle that courts should not inquire into the adequacy of consideration. (See Calamar! & Perillo, Contracts (2d ed. 1977) § 4-3, p. 136.) “A single and undivided consideration may be bargained for and given as the agreed equivalent of one promise or of two promises or of many promises.” (1 Corbin on Contracts (1963) § 125, pp. 535-536.) Thus there is no analytical reason why an employee’s promise to render services, or his actual rendition of services over time, may not support an employer’s promise both to pay a particular *326wage (for example) and to refrain from arbitrary dismissal. (See 1 Cor-bin on Contracts, op. cit. supra, § 125, p. 536, fn. 68; 1A Corbin on Contracts, op. cit. supra, § 152, pp. 13-17.)

The most likely explanation for the “independent consideration” requirement is that it serves an evidentiary function: it is more probable that the parties intended a continuing relationship, with limitations upon the employer’s dismissal authority, when the employee has provided some benefit to the employer, or suffers some detriment, beyond the usual rendition of service. (See Employment at Will and the Law of Contracts (1973) 23 Buffalo L.Rev. 211, 221-226.) This functional view of “independent consideration” in the employment context has acquired judicial recognition in other states (see Littell v. Evening Star Newspaper Co. (D.C.Cir. 1941) 120 F.2d 36, 37; Bussard v. College of Saint Thomas, Inc. (1972) 294 Minn. 215 [200 N.W.2d 155, 161]; Eilen v. Tappin’s, Inc. (1951) 16 N.J.Super. 53, 56-68 [83 A.2d 817, 818-819]; cf. Farmer v. Arabian American Oil Co. (2d Cir. 1960) 277 F.2d 46 (applying New York law); Stevens v. G. L. Rugo & Sons (1st Cir. 1953) 209 F.2d 135 (applying Massachusetts law); Garrett v. American Family Mutual Insurance Co. (Mo.App. 1974) 520 S.W.2d 102, 110-112), and has been accepted in several recent cases by the California courts. “It is fundamental that when construing contracts involving substantial employment rights, courts should avoid mechanical and arbitrary tests if at all possible; employment contracts, like other agreements, should be construed to give effect to the intention of the parties as demonstrated by the language used, the purpose to be accomplished and the circumstances under which the agreement was made. [Citations.] [1Í] We embrace the prevailing viewpoint that the general rule [requiring independent consideration] is a rule of construction, not of substance, and that a contract for permanent employment, whether or not it is based upon some consideration other than the employee’s services, cannot be terminated at the will of the employer if it contains an express or implied condition to the contrary.” (Drzewiecki v. H & R Block, Inc., supra, 24 Cal.App.3d 695, 703-704, italics added.) Accordingly, “[i]t is settled that contracts of employment in California are terminable only for good cause if either of two conditions exist: (1) the contract was supported by consideration independent of the services to be performed by the employee for his prospective employer; or (2) the parties agreed, expressly or impliedly, that the employee could be terminated only for good cause.” (Rabago-Alvarez v. Dart Industries, Inc., supra, 55 Cal.App.3d 91, 96, italics added. Accord, Cleary v. American Airlines, Inc., supra, 111 Cal.App.3d 443, 452.)

*327In determining whether there exists an implied-in-fact promise for some form of continued employment courts have considered a variety of factors in addition to the existence of independent consideration. These have included, for example, the personnel policies or practices of the employer,19 the employee’s longevity of service,20 actions or communications by the employer reflecting assurances of continued employment,21 and the practices of the industry in which the employee is engaged.22

A related doctrinal development exists in the application to the employment relationship of the “implied-in-law covenant of good faith and fair dealing inherent in every contract.” (Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167, 179, fn. 12.) The Supreme Court in Tameny took note of authorities in other jurisdictions which have found an employer’s discharge of an at-will employee violative of that covenant,23 but considered it unnecessary to reach that issue in light of its holding that the pleading stated a cause of action on other grounds. {Ibid.)

*328Recently one Court of Appeal has had occasion to confront the applicability of that doctrine more directly. In Cleary v. American Airlines, Inc., supra, 111 Cal.App.3d 443, an employee who had been dismissed for alleged theft after 18 years of allegedly satisfactory service brought suit claiming, among other things, that his dismissal was in violation of published company policy requiring a “fair, impartial and objective hearing” in such matters, and in breach of the covenant of good faith and fair dealing. Holding that the complaint stated a cause of action on these grounds, the court reasoned: “Two factors are of paramount importance in reaching our result .... One is the longevity of service by plaintiff — 18 years of apparently satisfactory performance. Termination of employment without legal cause after such a period of time offends the implied-in-law covenant of good faith and fair dealing contained in all contracts, including employment contracts.. . . [if] The second factor of considerable significance is the expressed policy of the employer. .. set forth in [the] regulation [referred to in the pleadings]. This policy involves the adoption of specific procedures for adjudicating employee disputes such as this one. While the contents of the regulation are not before us, its existence compels the conclusion that this employer had recognized its responsibility to engage in good faith and fair dealing rather than in arbitrary conduct with respect to all of its employees. [¶] In the case at bench, we hold that the longevity of the employee’s service, together with the expressed policy of the employer, operate as a form of estoppel, precluding any discharge of such an employee by the employer without good cause.” (Id., at pp. 455-456.)

If “[termination of employment without legal cause [after 18 years of service] offends the implied-in-law covenant of good faith and fair dealing contained in all contracts, including employment contracts,” as the court said in the above-quoted portion of Cleary, then a fortiori that covenant would provide protection to Pugh, whose employment is nearly twice that duration. Indeed, it seems difficult to defend termination of such a long-time employee arbitrarily, i.e., without some legitimate reason, as compatible with either good faith or fair dealing.24

*329We need not go that far, however.25 In Cleary the court did not base its holding upon the covenant of good faith and fair dealing alone. Its decision rested also upon the employer’s acceptance of responsibility for refraining from arbitrary conduct, as evidenced by its adoption of specific procedures for adjudicating employee grievances. While the court characterized the employer’s conduct as constituting “[recognition of] its responsibility to engage in good faith and fair dealing” (111 Cal. App.3d at p. 455), the result is equally explicable in traditional contract terms: the employer’s conduct gave rise to an implied promise that it would not act arbitrarily in dealing with its employees.

Here, similarly, there were facts in evidence from which the jury could determine the existence of such an implied promise: the duration of appellant’s employment, the commendations and promotions he received, the apparent lack of any direct criticism of his work, the assurances he was given, and the employer’s acknowledged policies. While oblique language will not, standing alone, be sufficient to estabr lish agreement (Drzewiecki v. H & R Block, Inc., supra, 24 Cal.App.3d 695, 703), it is appropriate to consider the totality of the parties’ relationship: Agreement may be “‘shown by the acts and conduct of the parties, interpreted in the light of the subject matter and of the surrounding circumstances.’” (Marvin v. Marvin (1976) 18 Cal.3d 660, 678, fn. 16 [134 Cal.Rptr. 815, 557 P.2d 106]; see Note, Implied Contract Rights to Job Security (1974) 26 Stan.L.Rev. 335.) We therefore conclude that it was error to grant respondents’ motions for nonsuit as to See’s.

Since this litigation may proceed toward yet uncharted waters, we consider it appropriate to provide some guidance as to the questions which the trial court may confront on remand. We have held that appellant has demonstrated a prima facie case of wrongful termination in violation of his contract of employment. The burden of coming forward with evidence as to the reason for appellant’s termination now shifts to the employer. Appellant may attack the employer’s offered explanation, either on the ground that it is pretextual (and that the real reason is one prohibited by contract or public policy (cf. Bondi v. Jewels by Edwar, Ltd. (1968) 267 Cal.App.2d 672, 676 [73 Cal.Rptr. 494])), or on the ground that it is insufficient to meet the employer’s *330obligations under contract or applicable legal principles. Appellant bears, however, the ultimate burden of proving that he was terminated wrongfully. (Cleary v. American Airlines, Inc., supra, 111 Cal.App.3d 443, 456; cf. McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-807 [36 L.Ed.2d 668, 677-680, 93 S.Ct. 1817].)

By what standard that burden is to be measured will depend, in part, upon what conclusions the jury draws as to the nature of the contract between the parties. The terms “just cause” and “good cause,” “as used in a variety of contexts. .. have been found to be difficult to define with precision and to be largely relative in their connotation, depending upon the particular circumstances of each case.” (R. J. Cardinal Co. v. Ritchie (1963) 218 Cal.App.2d 124, 144 [32 Cal.Rptr. 545].) Essentially, they connote “a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power.” (Id., at p. 145.) Care must be taken, however, not to interfere with the legitimate exercise of managerial discretion.26 “Good cause” in this context is quite different from the standard applicable in determining the propriety of an employee’s termination under a contract for a specified term. (Cf. Lab. Code, § 2924.) And where, as here, the employee occupies a sensitive managerial or confidential position, the employer must of necessity be allowed substantial scope for the exercise of subjective judgment. (See Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith (1980) 93 Harv.L.Rev. 1816, 1840.)

The Case Against the Union.

Evidence as to what appellant’s successor told union representatives after his termination (“Now we’ve taken care of Mr. Pugh. What are you going to do for us?”), while hardly in itself weighty, is nevertheless sufficient in context given principles applicable to nonsuits, to justify an inference that appellant was terminated in response to the union’s insistence. A union is privileged to induce a breach of contract between employer and employee in the pursuit of a legitimate labor ob*331jective (Imperial Ice Co. v. Rossier (1941) 18 Cal.2d 33, 35 [112 P.2d 631]; L. A. Pie Bakers Assn. v. Bakery Drivers (1953) 122 Cal.App.2d 237, 243 [264 P.2d 615]; Lawless v. Brotherhood of Painters (1956) 143 Cal.App.2d 474, 478 [300 P.2d 159]); alternatively, a union’s efforts to cause termination of a supervisory employee for reasons bearing upon his relationship to the union may constitute an unfair labor practice subject to the exclusive jurisdiction of the National Labor Relations Board (29 U.S.C. § 158(b)(1)(B)). At this stage, however, the record is inadequate to support definitive application of either privilege or preemption. We therefore conclude that the judgment of nonsuit was erroneously granted with respect to the union as well.

Reversed.

Racanelli, P. J., and Newsom, J., concurred.

On March 27, 1981, the opinion was modified to read as printed above.

Opinion

BAXTER, J.

This case presents questions about the law governing claims of wrongful discharge from employment as it applies to an employer’s motion for summary judgment. Plaintiff John Guz, a longtime employee of Bechtel National, Inc. (BNI), was released at age 49 when his work unit was eliminated and its tasks were transferred to another Bechtel office. Guz sued BNI and its parent, Bechtel Corporation (hereinafter collectively Bechtel), *326alleging age discrimination, breach of an implied contract to be terminated only for good cause, and breach of the implied covenant of good faith and fair dealing. The trial court granted Bechtel’s motion for summary judgment and dismissed the action. In a split decision, the Court of Appeal reversed. The majority found that Bechtel had demonstrated no. grounds to foreclose a trial on any of the claims asserted in the complaint.

Having closely reviewed the Court of Appeal’s decision,1 we reach the following conclusions:

First, the Court of Appeal used erroneous grounds to reverse summary judgment on Guz’s implied contract cause of action. The Court of Appeal found triable evidence (1) that Guz had an actual agreement, implied in fact, to be discharged only for good cause, and (2) that the elimination of Guz’s work unit lacked good cause because Bechtel’s stated reason—a “downturn in.'. . workload”—was not justified by the facts, and was, in truth, a pretext to discharge the unit’s workers for poor performance without following the company’s “progressive discipline” policy. We acknowledge a triable issue that Guz, like other Bechtel workers, had implied contractual rights under specific provisions of Bechtel’s written personnel policies. But neither the policies, nor other evidence, suggests any contractual restriction on Bechtel’s right to eliminate a work unit as it saw fit, even where dissatisfaction with unit performance was a factor in the decision. The Court of Appeal’s ruling on Guz’s implied contract claim must therefore be reversed. The Court of Appeal did not reach the additional ground on which Guz claims a contractual breach—i.e., that Bechtel failed to follow its fair layoff policies when, during and after the reorganization, it made individual personnel decisions leading to Guz’s release. Accordingly, we leave that issue to the Court of Appeal on remand.

Second, the Court of Appeal erred in restoring Guz’s separate cause of action for breach of the implied covenant of good faith and fair dealing. Here Guz claims that even if his employment included no express or implied-in-fact agreement limiting Bechtel’s right to discharge him, and was thus “at will” (Lab. Code, § 2922), the covenant of good faith and fair dealing, implied by law in every contract, precluded Bechtel from terminating him *327arbitrarily, as by failing to follow its own policies, or in bad faith. But while the implied covenant requires mutual fairness in applying a contract’s actual terms, it cannot substantively alter those terms. If an employment is at will, and thus allows either party to terminate for any or no reason, the implied covenant cannot decree otherwise. Moreover, although any breach of the actual terms of an employment contract also violates the implied covenant, the measure of damages for such a breach remains solely contractual. Hence, where breach of an actual term is alleged, a separate implied covenant claim, based on the same breach, is superfluous. On the other hand, where an implied covenant claim alleges a breach of obligations beyond the agreement’s actual terms, it is invalid.

Finally, we disagree with the Court of Appeal that Guz’s claim of prohibited age discrimination has triable merit. Bechtel presented evidence, largely undisputed, that the reasons for its personnel decisions leading to Guz’s release had nothing to do with his age. In the face of this showing, evidence cited by Guz that certain workers preferred over him were substantially younger is insufficient to permit a rational inference that age played any significant role in his termination.

For the reasons set forth above, we will reverse the judgment of the Court of Appeal and will remand to that court for further proceedings consistent with this opinion.

Facts

In October 1994, Guz sued Bechtel, challenging the June 1993 termination of his Bechtel employment. The complaint alleged causes of action for breach of an implied employment contract (see Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 [254 Cal.Rptr. 211, 765 P.2d 373] (Foley)), breach of the covenant of good faith and fair dealing, and age discrimination in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12941).

After extensive discovery, Bechtel filed a motion for summary judgment in August 1995. The motion, and Guz’s opposition thereto, attached numerous supporting documents, including declarations and deposition excerpts. On the basis of these submissions, the following facts appear to be essentially undisputed:

In 1971, Bechtel hired Guz as an administrative assistant at a salary of $750 per month. Throughout his Bechtel career, Guz worked in “management information,” performing, at various times, duties on both the *328“awarded” and “overhead” sides of this specialty. He received steady raises and promotions. His performance reviews were generally favorable, though his March 1992 evaluation indicated he needed to follow through on ideas and should become “fully computer literate in order to improve his long-term job success.”

BNI, a division of Bechtel Corporation, is an engineering, construction, and environmental remediation company that focuses on federal government programs, principally for the Departments of Energy and Defense. Prior to 1993, BNI had its own in-house management information unit, the BNI Management Information Group (BNI-MI). BNI-MI itself represented a 1986 consolidation of two Bechtel management information units, which resulted in the work of these groups being done by fewer people. Between 1986 and 1991, BNI-MI’s size was further reduced from 13 to six persons, and its costs were reduced from $748,000 in 1986 to $400,000 in 1991.

Guz had worked for BNI-MI since 1986. In 1992, at age 49, he was employed as a financial reports supervisor, responsible for supervising BNI-MI’s overhead section, which included himself and 44-year-old Dee Minoia. At salary grade 27, Guz earned $5,940 per month. BNI-MI’s six-member staff also included its manager, Ronald Goldstein (age 50), Goldstein’s secretary Pam Fung (age 45), Robert Wraith (age 41), and Christine Siu (age 34). Guz’s immediate superior was his longtime friend and colleague Goldstein. Goldstein, in turn, reported to Edward Dewey, BNI’s manager of government services.

During this time, Bechtel maintained Personnel Policy 1101, dated June 1991, on the subject of termination of employment (Policy 1101). Policy 1101 stated that “Bechtel employees have no employment agreements guaranteeing continuous service and may resign at their option or be terminated at the option of Bechtel.”

Policy 1101 also described several “Categories of Termination,” including “Layoff’ and “Unsatisfactory Performance.” With respect to Unsatisfactory Performance, the policy stated that “[ejmployees who fail to perform their jobs in a satisfactory manner may be terminated, provided the employees have been advised of the specific shortcomings and given an opportunity to improve their performance.”2 A layoff was defined as “a Bechtel-initiated termination!] of employees caused by a reduction in workload, reorganizations, changes in job requirements, or other circumstances . . . .” Under the Layoff policy, employees subject to termination for this reason “may be *329placed on ‘holding status’ if there is a possible Bechtel assignment within the following 3-month period.” Guz understood that Policy 1101 applied to him.

In January 1992, Robert Johnstone became president of BNI. While previously running another Bechtel entity, Johnstone had received management information services from the San Francisco Regional Office Management Information Group (SFRO-MI) headed by James Tevis. BNI-MI and SFRO-MI performed similar functions, and John Shaeffer,3 a veteran Bechtel employee who was several months older than Guz, had overhead reporting duties for SFRO-MI that were similar to Guz’s job within BNI-MI.

Johnstone soon became unhappy with the size, cost, and performance of BNI-MI. In April 1992, he advised Dewey, Goldstein, and Guz that BNI-MI’s work could be done by three people. A May 1992 memo from Dewey to Goldstein warned that Dewey and Johnstone had agreed BNI-MI’s 1992 overhead budget of $365,000 was a “maximum not to be exceeded” and was “subject to further analysis and review, since the real guideline was far below this level.”

Between April and October 1992, Guz and Goldstein discussed how to reduce BNI-MI’s work force. In September 1992, Dee Minoia was told to look for another job. In October 1992, on Dewey’s recommendation, Gold-stein advised Guz to seek another Bechtel position, citing BNI-MI’s reduced budget as the “biggest factor.” By that time, as Guz knew, BNI-MI’s overhead costs for 1992 had already run well over its strict budget.

In preparation for his departure, Guz compiled a list of his job tasks, together with his suggestions about who should perform his work once the BNI-MI staff was reduced. Guz recommended that most of his duties go to Shaeffer in SFRO-MI, and that the small remaining portion of his work, involving the government’s Defense Contract Audit Agency, be transferred to a unit headed by Ann Dersheimer, BNI’s 46-year-old controller, which regularly performed government audit and contract work. In mid-November, Goldstein managed to persuade Dewey, at least temporarily, that Guz was necessary to BNI-MI’s work. With Dewey’s consent, Goldstein asked Guz to stay, and Guz accepted.

Meanwhile, however, Dewey and Johnstone were discussing the possibility of involving SFRO-MI more actively in BNI’s management information needs. In late November 1992, Goldstein received from Dewey, and discussed with Guz, a memo setting BNI-MI’s target overhead budget for 1993 *330at $250,000. The memo again suggested staff reductions as a means of bringing the unit’s overhead within the budget limits.

About the same time, Johnstone asked Tevis to submit a proposal to provide BNI’s management information services through SFRO-MI. In early December, Tevis submitted a proposed budget of $200,000, which Johnstone accepted.

On December 9, 1992, Goldstein informed Guz that BNI-MI was being disbanded, that its work would be done by SFRO-MI, and that Guz was being laid off. Goldstein told Guz the reason he had been selected for layoff was to reduce costs. On December 11, 1992, Guz received a confirmatory letter from Dewey, which referred to “the downturn in our workload” and placed Guz on holding status. In a December 17, 1992, memo to BNI managers, Johnstone announced the transfer of BNI-MI to SFRO-MI effective February 1, 1993. During the transition period, as he had earlier recommended, Guz transferred his overhead reporting work to Shaeffer and his government audit work to Dersheimer.

As part of the transition plan, Tevis consulted with Goldstein “about the positions [Tevis] would need that [he] could cover in [his] group and that [he] couldn’t cover.” According to Tevis’s uncontradicted deposition testimony, Goldstein recommended Wraith and Siu as the best additions to SFRO-MI’s staff. The reasons, according to Tevis, were that Siu had necessary skills in Bechtel’s ORS computer operating system and occupied a salary grade commensurate with the duties Tevis wished her to assume, and that Wraith “knew the project side” of management information. Guz’s name came up in the discussion, but Tevis and Goldstein “both decided” Shaeffer and another current SFRO-MI employee, Chris Gee, were sufficient to assume Guz’s overhead work.

Wraith and Siu, the two youngest members of BNI-MI, were transferred to SFRO-MI, while all the remaining BNI-MI employees, including Guz, were laid off. Guz was placed on holding status pending possible reassignment to another Bechtel position.

During early 1993, while Guz was on holding status, three other positions became available in SFRO-MI, partly because of that unit’s expanded responsibilities for BNI. An existing SFRO-MI employee, 42-year-old John Wallace, was selected for a new SFRO-MI position as supervisor of SFROMI’s work for BNI. Wallace’s former SFRO-MI subordinate, 52-year-old Jan Vreim, was placed in Wallace’s old job. The third position, vacated by the transfer of another SFRO-MI member, was filled by 38-year-old Barbara *331Stenho, who also already worked for Bechtel but was a newcomer to SFRO-MI.

Tevis explained that Wallace was selected for his position because it required his computer skills, and because his supervisory and project experience suited him for the responsibility of working directly with BNI president Johnstone, who was project oriented. Vreim was also chosen for her ORS computer ability, her history of working with high-level managers, and her project experience. The SFRO-MI position taken by Stenho required a close working relationship with another Bechtel entity, Bechtel Civil, where Stenho had previously been employed. Stenho was placed in her new job at the specific request of Bechtel Civil’s manager.

Though Guz insists he let it be known he wanted to stay at Bechtel, even at a reduced salary, he appears to concede he did not specifically apply for any of the SFRO-MI positions. Tevis never saw Guz’s resume before filling them, and he admitted he never considered Guz for these jobs. Tevis variously indicated he did not realize Guz was available, thought Guz “only did overhead,” understood from Goldstein that Guz lacked computer skills, and did not know Guz had supervisory experience. Tevis also noted Guz did not have the Bechtel Civil relationship necessary for the Stenho position. After Tevis was asked, at his deposition, to examine Guz’s resume, Tevis acknowledged it indicated Guz might have qualified for the positions taken by Wraith and Wallace.

Guz’s original three-month holding status was renewed for an additional three months, but he obtained no other position within Bechtel. He was terminated on June 11, 1993.

Guz sought to furnish evidence that the cost reduction and workload downturn reasons given him for the elimination of BNI-MI, and his own consequent layoff, were arbitrary, false, and pretextual. To rebut the implication that a general business slowdown required BNI to lay off workers, Guz submitted an excerpt from Bechtel Corporation’s 1992 Annual Report. There, Bechtel Corporation’s president stated that the “Bechtel team had an exceptional year,” and that the company as a whole had achieved healthy gains in both revenue from current projects and new work booked. In his own declaration, Goldstein stated that BNI-MI’s 1992 and projected 1993 workload was high, that BNI-MI’s work volume was not directly related to the overall job hours of BNI, and that because much of BNI-MI’s overhead cost was recoverable under BNI’s government contracts, the net savings from elimination of BNI-MI were only a small fraction of its budget.

*332Guz also submitted additional Bechtel documents discussing specific company personnel policies and practices, including those policies pertaining to laid-off employees. These documents included Bechtel’s 1989 Reduction-in-Force Guidelines (RIF Guidelines) and Bechtel’s Personnel Policy 302 (Policy 302).

Policy 302 described a system of employee ranking (sometimes hereafter called force ranking), which was to be “used alone or in conjunction with other management tools in making personnel decisions in such areas as . . . [sjtaffing.” Rankings were to be based on the fair, objective, and consistent evaluation of employees’ comparative job-relevant skills and performance. However, Policy 302 also provided that “[ujnique situations may occur in which employee ranking may be inapplicable based on the nature of the personnel decision or the limited size of the ranking group.” (Italics omitted.)

The RIF Guidelines specified that when choosing among employees to be retained and released during a reduction in force, the formal ranking system set forth in Policy 302 was to be employed. For this purpose, the RIF Guidelines said, employees should “[ijdeally” be ranked, by similarity of function or level of work activity, in groups of from 20 to 100. The parties disputed whether Bechtel actually used this force ranking system when eliminating entire units of fewer than 20 employees. Bechtel’s manager of human resources declared that force ranking was inappropriate for small units, such as BNI-MI, whose employees had dissimilar duties, grades, and skills. However, both Guz and Goldstein declared their recollection that force ranking was an established Bechtel policy and was used in 1986 when two management information units, containing 13 employees, were consolidated into a six-member unit, BNI-MI.

The RIF Guidelines also explained the term “holding status” and its benefits. According to the RIF Guidelines, this status could be granted upon layoff, for a renewable three-month period, while the employee awaited possible reassignment. The employee would not receive salary, but Bechtel would maintain his medical, dental, voluntary personal accident, and term life insurance. Bechtel should also provide the employee with “[tjransfer and [pjlacement [ajssistance.” The “releasing organization” should determine if the employee was qualified for other vacant positions within the same unit, • and “open requisitions” (i.e., solicitation of outside applicants for available positions) should generally be cancelled during a reduction in force. “Efforts should [also] be made to contact discipline counterparts in other Bechtel entities/services” in hopes of placing the employee, and the employee should be considered for future positions. (Italics added.) In his deposition, BNI *333president Johnstone agreed that Bechtel’s practice was to place an employee on holding status prior to termination, to attempt to reassign the employee during this period, and to “continue to look for positions even after the employee has been laid off.”4

In their declarations, Goldstein and Guz insisted Guz was qualified for each of the several vacant positions in SFRO-MI, as well as for several other positions that became available within Bechtel. Addressing Tevis’s specific qualms about Guz, Guz and Goldstein declared that Guz had supervisorial experience, and had worked on both the awarded and overhead sides of management information. Guz further stated that he had taken training for the ORS computer system, “had more than adequate computer skills for [his] position,” and was never told his computer skills were deficient.

The trial court granted summary judgment. The court reasoned that “[Guz] was an at-will employee and has not introduced any evidence that he was ever told at any time that he had permanent employment or that he would be retained as long as he was doing a good job. . . . [f] Plaintiff is unable to establish a prima facie case of age discrimination. . . . Plaintiff is also unable to rebut [Bechtel’s] legitimate business reason for his termination and/or his failure to obtain another position within Bechtel. . . .”

Over a vigorous dissent by Presiding Justice Anderson, the Court of Appeal, First Appellate District, Division Four, reversed. The majority, Justices Poché and Reardon, reasoned as follows: Under Foley, supra, 47 Cal.3d 654, Guz’s longevity, promotions, raises, and favorable performance reviews, together with Bechtel’s written progressive discipline policy and Bechtel officials’ statements of company practices, raised a triable issue that Guz had an implied-in-fact contract to be dismissed only for good cause. There was evidence that Bechtel breached this term by eliminating BNI-MI, on the false ground that workload was declining, as a pretext to weed out poor performers without applying the company’s progressive discipline procedures. As to Guz’s age discrimination claim, Bechtel was required to advance a credible nondiscriminatory reason for Guz’s termination, after which the burden shifted to Guz to produce evidence that the proffered reason was discriminatory or pretextual. As already noted, however, whether *334a downturn in workload was the real reason for Bechtel’s action was in legitimate dispute. Hence, summary judgment on the age discrimination claim was improper.

The dissent argued that the trial court properly dismissed all Guz’s causes of action. It reasoned as follows: As to the contract claim, Policy 1101 expressly provided that Bechtel employment was at will. The progressive discipline policy did not apply to general reductions in force, and nothing in Bechtel’s personnel policies otherwise limited its right to eliminate positions. Guz’s mere successful longevity could not prove a contractual right to be terminated only for good cause. Moreover, there was no evidence the elimination of BNI-MI was pretextual, or that Bechtel violated the implied covenant of fair dealing by engaging in intentional, bad faith conduct to deprive Guz of the benefits of his employment. As to age discrimination, Bechtel gave legitimate nondiscriminatory reasons for eliminating BNI-MI, and Guz presented no evidence these reasons were false, let alone excuses for intentional discrimination against Guz on the basis of his 5

We granted review.

Discussion6

I. Summary judgment rules.

On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. (Artiglio v. Coming Inc. (1998) 18 Cal.4th 604, 612 [76 Cal.Rptr.2d 479, 957 P.2d 1313].) Under California’s traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff’s case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. (E.g., Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 735-736 [80 Cal.Rptr.2d 506, 968 P.2d 65] (Calvillo-Silva); Flatt v. Superior Court (1994) 9 Cal.4th 275, 279 [36 Cal.Rptr.2d 537, 885 P.2d 950]; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674 [25 Cal.Rptr.2d 137, 863 P.2d 207]; Molko v. *335 Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].)7

II. Implied contract claim.

Labor Code section 2922 provides that “[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other.” An at-will employment may be ended by either party “at any time without cause,” for any or no reason, and subject to no procedure except the statutory requirement of notice. (E.g., Foley, supra, 47 Cal.3d 654, 680; Gantt v. Sentry Insurance Co. (1992) 1 Cal.4th 1083, 1094 [4 Cal.Rptr.2d 874, 824 P.2d 680]; Marin v. Jacuzzi (1964) 224 Cal.App.2d 549, 553-554 [36 Cal.Rptr. 880]; see Crosier v. United Parcel Service, Inc. (1983) 150 Cal.App.3d 1132, 1137 [198 Cal.Rptr. 361].)8

While the statutory presumption of at-will employment is strong, it is subject to several limitations. For instance, as we have observed, “the employment relationship is fundamentally contractual.” (Foley, supra, 47 *336Cal.3d 654, 696.) Thus, though Labor Code section 2922 prevails where the employer and employee have reached no other understanding, it does not overcome their “fundamental . . . freedom of contract” to depart from at-will employment. (47 Cal.3d at p. 677.) The statute does not prevent the parties from agreeing to any limitation, otherwise lawful, on the employer’s termination rights. (Id., at pp. 677, 680.)

One example of a contractual departure from at-will status is an agreement that the employee will be terminated only for “good cause” (Foley, supra, 47 Cal.3d 654, 677) in the sense of “ ‘ “a fair and honest cause or reason, regulated by good faith . . .” ’ [citation], as opposed to one that is ‘trivial, capricious, unrelated to business needs or goals, or pretextual . . . .’ [Citations.]” (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 467 [46 Cal.Rptr.2d 427, 904 P.2d 834] (Scott); see also Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 104-105 [69 Cal.Rptr.2d 900, 948 P.2d 412]; Pugh v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311, 330 [171 Cal.Rptr. 917] (Pugh).) But the parties are free to define their relationship, including the terms on which it can be ended, as they wish. The parties may reach any contrary understanding, otherwise lawful, “concerning either the term of employment or the grounds or manner of termination.” (Foley, supra, 47 Cal.3d at p. 680, italics added.)

Thus, the employer and employee may enter “ ‘an agreement . . . that ... the employment relationship will continue indefinitely, pending the occurrence of some event such as the employer’s dissatisfaction with the employee’s services or the existence of some “cause” for termination.’ ” (Foley, supra, 47 Cal.3d 654, 680, quoting Pugh, supra, 116 Cal.App.3d 311, 324-325, italics added.) Among the many available options, the parties may agree that the employer’s termination rights will vary with the particular circumstances. The parties may define for themselves what cause or causes will permit an employee’s termination and may specify the procedures under which termination shall occur. The agreement may restrict the employer’s termination rights to a greater degree in some situations, while leaving the employer freer to act as it sees fit in others.

The contractual understanding need not be express, but may be implied in fact, arising from the parties’ conduct evidencing their actual mutual intent to create such enforceable limitations. (Foley, supra, 47 Cal.3d 654, 680.) In Foley, we identified several factors, apart from express terms, that may bear upon “the existence and content of an . . . [implied-in-fact] agreement” placing limits on the employer’s right to discharge an employee. (Ibid., italics added.) These factors might include “ ‘the personnel policies or practices of the employer, the employee’s longevity of service, actions or *337communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.’ ” (Ibid., quoting Pugh, supra, 116 Cal.App.3d 311, 327.)

Foley asserted that “the totality of the circumstances” must be examined to determine whether the parties’ conduct, considered in the context of surrounding circumstances, gave rise to an implied-in-fact contract limiting the employer’s termination rights. (Foley, supra, 47 Cal.3d 654, 681.) We did not suggest, however, that every vague combination of Foley factors, shaken together in a bag, necessarily allows a finding that the employee had a right to be discharged only for good cause, as determined in court.

On the contrary, “courts seek to enforce the actual understanding” of the parties to an employment agreement. (Foley, supra, 47 Cal.3d 654, 677, italics added.) Whether that understanding arises from express mutual words of agreement, or from the parties’ conduct evidencing a similar meeting of minds, the exact terms to which the parties have assented deserve equally precise scrutiny. As Foley indicated, it is the “nature of [an implied-in-fact] contract” that must be determined from the “totality of the circumstances.” (Id., at p. 681.)

Every case thus turns on its own facts. Where there is no express agreement, the issue is whether other evidence of the parties’ conduct has a “tendency in reason” (Evid. Code, § 210) to demonstrate the existence of an actual mutual understanding on particular terms and conditions of employment. If such evidence logically permits conflicting inferences, a question of fact is presented. (Foley, supra, 47 Cal.3d at p. 677.) But where the undisputed facts negate the existence or the breach of the contract claimed, summary judgment is proper.

Guz alleges he had an agreement with Bechtel that he would be employed so long as he was performing satisfactorily and would be discharged only for good cause. Guz claims no express understanding to this effect. However, he asserts that such an agreement can be inferred by combining evidence of several Foley factors, including (1) his long service; (2) assurances of continued employment in the form of raises, promotions, and good performance reviews; (3) Bechtel’s written personnel policies, which suggested that termination for poor performance would be preceded by progressive discipline, that layoffs during a work force reduction would be based on objective criteria, including formal ranking, and that persons laid off would receive placement and reassignment assistance; and (4) testimony by a Bechtel executive that company practice was to terminate employees for a good reason and to reassign, if possible, a laid-off employee who was performing satisfactorily.

*338Guz further urges there is evidence his termination was without good cause in two respects. First, he insists, the evidence suggests Bechtel had no good cause to eliminate BNl-MI, because the cost reduction and workload downturn reasons Bechtel gave for that decision (1) were not justified by the facts, and (2) were a pretext to terminate him and other individual BNI-MI employees for poor performance without following the company’s progressive discipline rules. Second, Guz asserts, even if there was good cause to eliminate his work unit, his termination nonetheless lacked good cause because Bechtel failed to accord him fair layoff rights set forth in its written personnel rules, including (1) use of objective force ranking to determine which unit members deserved retention, and (2) fair consideration for other available positions while he was in holding status..

The Court of Appeal agreed with Guz that there was triable evidence of an implied-in-fact contract to terminate him only for good cause. The court further agreed the evidence warranted a trial on Guz’s first theory of breach, i.e., that Bechtel’s stated economic reason for eliminating his work unit lacked support and was a pretext for firing unsatisfactory workers without resort to progressive discipline procedures. On this basis alone, the Court of Appeal reversed the summary judgment against Guz’s contract cause of action. The Court of Appeal did not decide whether the evidence justified a trial on Guz’s second theory of breach, i.e., the denial of rights specified by the company’s fair layoff rules.

As we shall explain, we find triable evidence that Bechtel’s written personnel documents set forth implied contractual limits on the circumstances under which Guz, and other Bechtel workers, would be terminated. On the other hand, we see no triable evidence of an implied agreement between Guz and Bechtel on additional, different, or broader terms of employment security. As Bechtel suggests, the personnel documents themselves did not restrict Bechtel’s freedom to reorganize, reduce, and consolidate its work force for whatever reasons it wished. Thus, contrary to the Court of Appeal’s holding, Bechtel had the absolute right to eliminate Guz’s work unit and to transfer the unit’s responsibilities to another company entity, even if the decision was influenced by dissatisfaction with the eliminated unit’s performance, and even if the personnel documents entitled an individual employee to progressive discipline procedures before being fired for poor performance.

The basis on which the Court of Appeal overturned this portion of the trial court’s summary judgment was therefore erroneous, and the Court of Appeal’s decision in this regard must be reversed. Having so concluded, we need not address the issue the Court of Appeal never reached, i.e., whether *339Guz has a triable claim that, in the course of the reorganization, Bechtel denied him fair layoff protections, such as objective ranking and placement assistance, as guaranteed by the company’s written personnel provisions. We leave that question to the Court of Appeal on remand. The following paragraphs describe in detail our reasoning on these matters.

At the outset, Bechtel insists that the existence of implied contractual limitations on its termination rights is negated because Bechtel expressly disclaimed all such agreements. Bechtel suggests the at-will presumption of Labor Code 2922 was conclusively reinforced by language Bechtel inserted in Policy 1101, which specified that the company’s employees “have no . . . agreements guaranteeing continuous service and may be terminated at [Bechtel’s] option.” As Bechtel points out, Guz concedes he understood Policy 1101 applied to him.9

This express disclaimer, reinforced by the statutory presumption of at-will employment, satisfied Bechtel’s initial burden, if any, to show that Guz’s claim of a contract limiting Bechtel’s termination rights had no merit. But neither the disclaimer nor the statutory presumption necessarily foreclosed Guz from proving the existence and breach of such an agreement.

Cases in California and elsewhere have held that at-will provisions in personnel handbooks, manuals, or memoranda do not bar, or necessarily overcome, other evidence of the employer’s contrary intent (see, e.g., Thomka v. Financial Corp. (1993) 15 Cal.App.4th 877, 884-885 [19 Cal.Rptr.2d 382]; Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 993 [6 Cal.Rptr.2d 184] (Walker); Wilkerson v. Wells Fargo Bank (1989) 212 Cal.App.3d 1217, 1227-1228 [261 Cal.Rptr. 185] {Wilkerson)), particularly where other provisions in the employer’s personnel documents themselves suggest limits on the employer’s termination rights (see, e.g., Wood v. Loyola Marymount University (1990) 218 Cal.App.3d 661, 665-669 [267 Cal.Rptr. 230]; Zaccardi v. Zale Corp. (10th Cir. 1988) 856 F.2d 1473, 1476-1477; O’Loughlin v. The Pritchard Corp. (D.Kan. 1997) 972 F.Supp. 1352, 1369-1370; Farnum v. Brattleboro Retreat, Inc. (1995) 164 Vt. 488 *340[671 A.2d 1249, 1254-1255]; Swanson v. Liquid Air Corp. (1992) 118 Wash.2d 512 [826 P.2d 664, 668-677]; Jones v. Central Peninsula General Hosp. (Alaska 1989) 779 P.2d 783, 788).10 The reasoning, express or implied, is that parol evidence is admissible to explain, supplement, or even contradict the terms of an unintegrated agreement, and that handbook disclaimers should not permit an employer, at its whim, to repudiate promises it has otherwise made in its own self-interest, and on which it intended an employee to rely.

We agree that disclaimer language in an employee handbook or policy manual does not necessarily mean an employee is employed at will. But even if a handbook disclaimer is not controlling (Wilkerson, supra, 212 Cal.App.3d 1217, 1227) in every case, neither can such a provision be ignored in determining whether the parties’ conduct was intended, and reasonably understood, to create binding limits on an employer’s statutory right to terminate the relationship at will. Like any direct expression of employer intent, communicated to employees and intended to apply to them, such language must be taken into account, along with all other pertinent evidence, in ascertaining the terms on which a worker was employed. (Ibid,)11 We examine accordingly the evidence cited by Guz in support of his implied contract claim.

*341At the outset, it is undisputed that Guz received no individual promises or representations that Bechtel would retain him except for good cause, or upon other specified circumstances. (See Foley, supra, 47 Cal.3d 654, 680.) Nor does Guz seriously claim that the practice in Bechtel’s industry was to provide secure employment. {Ibid.) Indeed, the undisputed evidence suggested that because Bechtel, like other members of its industry, operated by competitive bidding from project to project, its work force fluctuated widely and, in terms of raw numbers, was in general decline.12

However, Guz insists his own undisputed long and successful service at Bechtel constitutes strong evidence of an implied contract for permanent employment except upon good cause. Guz argues that by retaining him for over 20 years, and by providing him with steady raises, promotions, commendations, and good performance reviews during his tenure, Bechtel engaged in “actions . . . reflecting assurances of continued employment.” {Foley, supra, 47 Cal.3d 654, 680.) Bechtel responds that an individual employee’s mere long and praiseworthy service has little or no tendency to show an implied agreement between the parties that the employee is no longer terminable at will.

A number of post-Foley California decisions have suggested that long duration of service, regular promotions, favorable performance reviews, praise from supervisors, and salary increases do not, without more, imply an employer’s contractual intent to relinquish its at-will rights. {Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 817-819 [85 Cal.Rptr.2d 459] {Horn); Kovatch v. California Casualty Management Co. (1998) 65 Cal.App.4th 1256, 1276 [77 Cal.Rptr.2d 217]; Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 368 [34 Cal.Rptr.2d 438]; Tollefson, supra, 219 Cal.App.3d 843, 856; Miller v. Pepsi-Cola Bottling Co. (1989) 210 Cal.App.3d 1554, 1559 [259 Cal.Rptr. 56]; see also Hoy v. Sears, Roebuck & Co. (N.D.Cal. 1994) 861 F.Supp. 881, 886.) These decisions reason that such events are but natural consequences of a well-functioning employment relationship, and thus have no special tendency to prove that the employer’s at-will implied agreement, reasonably understood as such by the employee, has become one that limits the employer’s future termination rights.

We agree that an employee’s mere passage of time in the employer’s service, even where marked with tangible indicia that the employer approves *342the employee’s work, cannot alone form an implied-in-fact contract that the employee is no longer at will. Absent other evidence of the employer’s intent, longevity, raises and promotions are their own rewards for the employee’s continuing valued service; they do not, in and of themselves, additionally constitute a contractual guarantee of future employment security. A rule granting such contract rights on the basis of successful longevity alone would discourage the retention and promotion of employees.

On the other hand, long and successful service is not necessarily irrelevant to the existence of such a contract. Over the period of an employee’s tenure, the employer can certainly communicate, by its written and unwritten policies and practices, or by informal assurances, that seniority and longevity do create rights against termination at will. The issue is whether the employer’s words or conduct, on which an employee reasonably relied, gave rise to that specific understanding.

Read in context, Foley, supra, 47 Cal.3d 654, did not hold otherwise. In the first place, Foley’s reference to lengthy, successful service as evidence of an implied contract not to terminate at will was simply quoted, with little independent analysis, from Pugh, supra, 116 Cal.App.3d 311, 328. Pugh, in turn, had adopted wholesale the reasoning of Cleary v. American Airlines, Inc. (1980) 111 Cal.App.3d 443 [168 Cal.Rptr. 722] (Cleary) that “ ‘[termination of employment without legal cause [after long service] offends the implied-in-law covenant of good faith and fair dealing contained in all contracts, including employment contracts.’ ” (Pugh, supra, 116 Cal.App.3d at p. 328, quoting Cleary, supra, 111 Cal.App.3d at p. 455, italics added.) In other words, these cases suggested, because the arbitrary termination of a veteran employee is neither fair nor in good faith, such conduct violates the implied covenant contained in every employment contract, regardless of its terms.

But Foley itself discredited this line of reasoning. There we “reiterated that the employment relationship is fundamentally contractual” (Foley, supra, 47 Cal.3d 654, 696), and we made clear that the implied covenant of good faith and fair dealing cannot supply limitations on termination rights to which the parties have not actually agreed. (Foley, supra, at p. 698, fn. 39; see also discussion, post.)

Insofar as Foley applied the long service factor to its own facts, it did so consistently with the principles of implied-in-fact contracts. In Foley, the employer claimed the employee’s six years and nine months of service was too short a period to evidence an implied agreement not to discharge at will. We answered that “[l]ength of employment [was] a relevant consideration” *343and the plaintiffs length of service was “sufficient time for conduct to occur on which a trier of fact could find the existence of an implied contract.” (Foley, supra, 47 Cal.3d 654, 681, italics added.)13 Prominent among the conduct alleged by the Foley plaintiff was “repeated oral assurances of job security.” (Foley, supra, 47 Cal.3d at p. 681, italics added.)

We therefore decline to interpret Foley as holding that long, successful service, standing alone, can demonstrate an implied-in-fact contract right not to be terminated at will. In the case before us, there is no indication that employee longevity is a significant factor in determining the existence or content of an implied contract limiting the employer’s termination rights. Guz claims no particular “ ‘actions or communications by [Bechtel]’ ” (Foley, supra, 47 Cal.3d 654, 680), and no industry customs, practices, or policies (ibid.), which suggest that by virtue of his successful longevity in Bechtel’s employ, he had earned a contractual right against future termination at will.

If anything, Bechtel had communicated otherwise. The company’s Policy 1101 stated that Bechtel employees had no contracts guaranteeing their continuous employment and could be terminated at Bechtel’s option. Nothing in this language suggested any exception for senior workers, or for those who had received regular raises and promotions. While occasional references to seniority appear in other sections of Bechtel’s personnel documents, the narrow context of these references undermines an inference that Bechtel additionally intended, or employees had reason to expect, special immunities from termination based on their extended or successful service.14

Accordingly, the undoubted length and merit of Guz’s Bechtel career does not bolster his claim that his at-will status had been altered by an implied *344contract. We must look elsewhere for evidence raising a triable issue that Bechtel entered and breached an implied contract limiting its right to terminate Guz’s employment.

Guz asserts that Bechtel’s personnel documents, read as a whole, strongly support his claim of an implied agreement for employment security. As Guz suggests, an employer’s written personnel policies may be an important source of implied-contract evidence. We have made clear that “the trier of fact can infer an agreement to limit the grounds for termination based on the employee’s reasonable reliance on the company’s personnel manual or policies.” (Foley, supra, 47 Cal.3d 654, 681-682.)

“The principle that implied employment contract terms may arise from the employer’s official . . . policies and practices is one that long predates Foley . . . . ‘Of late years the attitude of the courts (as well as of employers in general) is to consider regulations of this type which offer additional advantages to employees as being in effect offers of a unilateral contract which offer is accepted if the employee continues in the employment, and not as being mere offers of gifts.’ ([Chinn v. China Nat. Aviation Corp. (1955) 98,] 99-100 [291 P.2d 91]; see also Newberger v. Rifkind (1972) 28 Cal.App.3d 1070, 1076 [104 Cal.Rptr. 663, 57 A.L.R.3d 1232] [implied unilateral contract for stock option agreement]; Hunter v. Sparling (1948) 87 Cal.App.2d 711, 721-722 [197 P.2d 807] [enforceable promise to pay pension benefits inferred from personnel policies].) In Hepp v. LockheedCalifonia Co. (1978) 86 Cal.App.3d 714 [150 Cal.Rptr. 408], this reasoning was extended to policies regarding nonmonetary employment benefits. There the court held that it was a question of fact whether an employer’s [written] policy of preferential hiring for its laid-off employees was to be considered an implied contractual promise on which its employees could reasonably rely. (Id. at p. 719.)” (Scott, supra, 11 Cal.4th 454, 464.)

When an employer promulgates formal personnel policies and procedures in handbooks, manuals, and memoranda disseminated to employees, a strong inference may arise that the employer intended workers to rely on these policies as terms and conditions of their employment, and that employees did reasonably so rely. (See, e.g., Scott, supra, 11 Cal.4th 454, 465.) Both parties derive benefits from such an arrangement. From the employees’ perspective, formal policies promote fairness and consistency, guarding against the arbitrary, capricious, and incongruous treatment of similar cases. By the same token, such policies may also help the employer by enhancing worker morale, loyalty, and productivity, providing competitive advantage *345in the labor market, and minimizing employee litigation. (See id., at pp. 469-470; see also Foley, supra, 47 Cal.3d 654, 681.)

For these reasons, logic suggests that the employer may intend, and employees may understand, such generally promulgated policies as a systematic approach to personnel relations, providing a clear and uniform alternative to haphazard practices, understandings, and arrangements within the company. Therefore, where the employer has chosen to maintain such written policies, the terms they describe must be a central focus of the contractual analysis.

Finally, Guz asserts there is evidence that, industry custom and written company personnel policies aside, Bechtel had an unwritten “polic[y] or practice[]” (Foley, supra, 47 Cal.3d 654, 680) to release its employees only for cause. As the sole evidence of this policy, Guz points to the deposition testimony of Johnstone, BNI’s president, who stated his understanding that Bechtel terminated workers only with “good reason” or for “lack of [available] work.” But there is no evidence that Bechtel employees were aware of such an unwritten policy, and it flies in the face of Bechtel’s general disclaimer. This brief and vague statement, by a single Bechtel official, that Bechtel sought to avoid arbitrary firings is insufficient as a matter of law to permit a finding that the company, by an unwritten practice or policy on which employees reasonably relied, had contracted away its right to discharge Guz at will.

In sum, if there is any significant evidence that Guz had an implied contract against termination at will, that evidence flows exclusively from Bechtel’s written personnel documents. It follows that there is no triable issue of an implied contract on terms broader than the specific provisions of those documents. In reviewing the Court of Appeal’s determination that Bechtel may have breached contractual obligations to Guz by eliminating his work unit, we must therefore focus on the pertinent written provisions.

As noted above, Bechtel’s written personnel provisions covering termination from employment fell into two categories. The parties do not dispute that certain of these provisions, expressly denominated “Policies” (including Policies 1101 and 302), were disseminated to employees and were intended by Bechtel to inform workers of rules applicable to their employment. There seems little doubt, and we conclude, a triable issue exists that thfc specific provisions of these Policies did become an implicit part of the employment contracts of the Bechtel employees they covered, including Guz.

Guz also points to another Bechtel document, the RIF Guidelines, that addressed procedures for implementing reductions in the work force. Evidence suggesting the contractual status of this document is somewhat closer. *346On the one hand, the “Guidelines” label and evidence indicating this document was distributed primarily to supervisors for their use, weigh against an inference that Bechtel intended a widely disseminated policy on which employees might directly rely. (See, e.g., Knights v. Hewlett Packard (1991) 230 Cal.App.3d 775, 780 [281 Cal.Rptr. 295].) Moreover, there was some evidence that even some Bechtel managers were unaware of the force ranking system set forth in Policy 302 and the RIF Guidelines.

On the other hand, the formality, tone, length, and detail of the RIF Guidelines suggest they were not intended as merely precatory. The RIF Guidelines comprised a minimum of six single-spaced pages, and were distributed under a cover letter suggesting that they represented “corporate policy.” In some instances, the RIF Guidelines defined or supplemented terms and provisions directly set forth in Policies 302 and 1101, such as the holding status described in Policy 1101 and the formal personnel ranking system described in Policy 302. There was also some evidence that Bechtel employees, including Guz, were aware of RIF Guideline procedures such as force ranking, had observed that the company followed these procedures in the past, and believed them to be Bechtel’s policy. Goldstein, Guz’s supervisor at BNI-MI, declared that as a supervisor, he received and was “instructed to follow” the RIF Guidelines. On balance, we are persuaded a triable issue exists that the RIF Guidelines, like the formally denominated Policies, formed part of an implied contract between Bechtel and its employees.

As Bechtel stresses, Policy 1101 itself purported to disclaim any employment security rights. However, Bechtel had inserted other language, not only in Policy 1101 itself, but in other written personnel documents, which described detailed rules and procedures for the termination of employees under particular circumstances. Moreover, the specific language of Bechtel’s disclaimer, stating that employees had no contracts “guaranteeing . . . continuous service” (italics added) and were terminable at Bechtel’s “option,” did not foreclose an understanding between Bechtel and all its workers that Bechtel would make its termination decisions within the limits of its written personnel rules. Given these ambiguities, a fact finder could rationally determine that despite its general disclaimer, Bechtel had bound itself to the specific provisions of these documents.

In holding that Bechtel may have breached the terms of an implied contract with Guz by eliminating his work unit, the Court of Appeal relied on two premises. Focusing on one reason Guz was given for this decision—a “downturn in . . . workload”—the Court of Appeal concluded that even if this reason were taken at face value, the evidence permitted a determination *347that it was arbitrary and unreasonable, and thus without good cause, because it lacked support in the facts. Second, the Court of Appeal found triable evidence that this stated reason was pretextual, in that it masked Bechtel’s true purpose to dismiss BNI-MI’s workers on the basis of the unit’s poor performance, but without affording each member the benefit of the progressive discipline rules set forth in the company’s personnel documents.

On the facts before us, we conclude that both these premises were in error. Bechtel’s written personnel documents—which, as we have seen, are the sole source of any contractual limits on Bechtel’s rights to terminate Guz— imposed no restrictions upon the company’s prerogatives to eliminate jobs or work units, for any or no reason, even if this would lead to the release of existing employees such as Guz.

Policy 1101 itself did address a category of termination labeled “Layoff.” However, this section simply defined that term as a “Bechtel-initiated termination[] of employees caused by a reduction in workload, reorganizations, changes in job requirements, or other circumstances such as failure to meet [a] client’s site access requirements.” (Italics added.) Policy 1101 further provided that persons scheduled for layoff were entitled to advance notice to facilitate reassignment efforts and job search assistance, and that “[a] surplus employee[] [might] be placed on ‘holding status’ if there [was] a possible Bechtel reassignment within the following 3-month period.” By proceeding in this fashion, Policy 1101 confirmed that Bechtel was free to “reorganize]” itself, or to “change[] . . . job requirements,” and to “initiate[]” employee “terminations . . . caused by” this process, so long as Bechtel provided the requisite advance notice.

The RIF Guidelines set forth more detailed procedures for selecting individual layoff candidates, and for helping such persons obtain jobs elsewhere within the company. But the RIF Guidelines, like the Policies, neither stated nor implied any limits on Bechtel’s freedom to implement the reorganization itself.

Guz, like the Court of Appeal, focuses on a separate section of Policy 1101, titled “Unsatisfactory Performance.” This section, the so-called progressive discipline provision, stated that “[e]mployees who fail to perform their jobs in a satisfactory manner may be terminated, provided the employees have been advised of the specific shortcomings and given an opportunity to improve their performance.” (Italics added.) Like the Court of Appeal, Guz cites BNI president Johnstone’s disclosure that he was unhappy with BNI-MI’s work product as evidence that the elimination of BNI-MI was a pretext for firing its individual members without resort to the progressive discipline policy.

*348However, as Bechtel suggests, Policy 1101 cannot reasonably be construed to conflate the separate Unsatisfactory Performance and Layoff provisions in this manner. Whatever rights Policy 1101 gave an employee threatened with replacement on account of his or her individual poor performance, we see nothing in Bechtel’s personnel documents which, despite Bechtel’s general disclaimer, limited Bechtel’s prerogative to eliminate an entire work unit, and thus its individual jobs, even if the decision was influenced by a belief that the unit’s work would be better performed elsewhere within the company.15

Accordingly, we conclude the Court of Appeal erred in finding, on the grounds it stated, that Guz’s implied contract claim was triable. Insofar as the Court of Appeal used these incorrect grounds to overturn the trial court’s contrary determination, and thus to reinstate Guz’s contractual cause of action, the Court of Appeal’s decision must be reversed.

The Court of Appeal did not address Guz’s second theory, i.e., that Bechtel also breached its implied contract by failing, during and after the reorganization, to provide him personally with the fair layoff protections, including force ranking and reassignment help, which are set forth in its Policies and RIF Guidelines. This theory raises difficult questions, including what the proper remedy, if any, should be if Guz ultimately shows that Bechtel breached a contractual obligation to follow certain procedural policies in the termination process. However, we commonly decline to decide issues not addressed by the Court of Appeal. (See, e.g., Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 795 [72 Cal.Rptr.2d 624, 952 P.2d 641].) We will follow that practice here. On remand, the Court of Appeal should confront this issue and should determine whether Guz has raised a triable issue on this theory.

III. Implied covenant claim.

Bechtel next urges that the trial court properly dismissed Guz’s separate claim for breach of the implied covenant of good faith and fair dealing because, on the facts and arguments presented, this theory of recovery is either inapplicable or superfluous. We agree.16

The sole asserted basis for Guz’s implied covenant claim is that Bechtel violated its established personnel policies when it terminated him without a *349prior opportunity to improve his “unsatisfactory” performance, used no force ranking or other objective criteria when selecting him for layoff, and omitted to consider him for other positions for which he was qualified. Guz urges that even if his contract was for employment at will, the implied covenant of good faith and fair dealing precluded Bechtel from “unfairly” denying him the contract’s benefits by failing to follow its own termination policies.

Thus, Guz argues, in effect, that the implied covenant can impose substantive terms and conditions beyond those to which the contract parties actually agreed. However, as indicated above, such a theory directly contradicts our conclusions in Foley, supra, 47 Cal.3d 654. The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made. (E.g., Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36 [44 Cal.Rptr.2d 370, 900 P.2d 619].) The covenant thus cannot “ ‘be endowed with an existence independent of its contractual underpinnings.’ ” (Ibid., quoting Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1153 [271 Cal.Rptr. 246].) It cannot *350impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.

Labor Code section 2922 establishes the presumption that an employer may terminate its employees at will, for any or no reason. A fortiori, the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment. Because the employment relationship is “fundamentally contractual” {Foley, supra, 47 Cal.3d 654, 696), limitations on these employer prerogatives are a matter of the parties’ specific agreement, express or implied in fact. The mere existence of an employment relationship affords no expectation, protectible by law, that employment will continue, or will end only on certain conditions, unless the parties have actually adopted such terms. Thus if the employer’s termination decisions, however arbitrary, do not breach such a substantive contract provision, they are not precluded by the covenant.

This logic led us to emphasize in Foley that “breach of the implied covenant cannot logically be based on a claim that [the] discharge [of an at-will employee] was made without good cause.” {Foley, supra, 47 Cal.3d 654, 698, fn. 39.) As we noted, “[b]ecause the implied covenant protects only the parties’ right to receive the benefit of their agreement, and, in an at-will relationship there is no agreement to terminate only for good cause, the implied covenant standing alone cannot be read to impose such a duty. [Citation.]” {Ibid.)

The same reasoning applies to any case where an employee argues that even if his employment was at will, his arbitrary dismissal frustrated his contract benefits and thus violated the implied covenant of good faith and fair dealing. Precisely because employment at will allows the employer freedom to terminate the relationship as it chooses, the employer does not frustrate the employee’s contractual rights merely by doing so. In such a case, “the employee cannot complain about a deprivation of the benefits of continued employment, for the agreement never provided for á continuation of its benefits in the first instance.” {Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 547 [249 Cal.Rptr. 5].)

Guz cites several decisions suggesting that the implied covenant precludes an employer from terminating even an at-will employee unfairly, such as by refusing to follow its own established policies and practices. {Rulon-Miller v. International Business Machines Corp. (1984) 162 Cal.App.3d 241, 247 [208 Cal.Rptr. 524] {Rulon-Miller) [employer’s duty of fair dealing requires that “like cases be treated alike”; thus, employer’s termination rules and regulations, if any, must be followed]; see Gray, supra, 181 Cal.App.3d 813, *351820-821 [long service plus violation of employer policies may establish breach of covenant of “fair treatment”]; Khanna, supra, 170 Cal.App.3d 250, 262 [implied covenant may be violated by termination of at-will employee where employer engaged in bad faith actions, extraneous to the contract, to frustrate benefits of employment]; Pugh, supra, 116 Cal.App.3d 311, 327-329 [termination after long service, in violation of employer policies, may breach implied covenant to refrain from arbitrary treatment]; Cleary, supra, 111 Cal.App.3d 443, 455-456 [same]; see also Kern v. Levelor Lorentzen, Inc. (9th Cir. 1990) 899 F.2d 772, 111 [covenant requires “cooperation in carrying out the contract and honesty in creating or settling disputes”; breach of covenant may thus be shown where employee establishes lengthy satisfactory service and violation of employer’s termination policies].) But insofar as these authorities suggest that the implied covenant may impose limits on an employer’s termination rights beyond those either expressed or implied in fact in the employment contract itself, they contravene the persuasive reasoning of Foley, and are therefore disapproved.

Similarly at odds with Foley are suggestions that independent recovery for breach of the implied covenant may be available if the employer terminated the employee in “bad faith” or “without probable cause,” i.e., without determining “honestly and in good faith that good cause for discharge existed.” (Walker, supra, 4 Cal.App.4th 985, 997; see also, e.g., Wilkerson, supra, 212 Cal.App.3d 1217, 1231; Burton v. Security Pacific Nat. Bank (1988) 197 Cal.App.3d 972, 979 [243 Cal.Rptr. 277]; Rulon-Miller, supra, 162 Cal.App.3d 241, 253.) Where the employment contract itself allows the employer to terminate at will, its motive and lack of care in doing so are, in most cases at least, irrelevant. (But see fn. 18, post.)

A number of Court of Appeal decisions since Foley have recognized that the implied covenant of good faith and fair dealing imposes no independent limits on an employer’s prerogative to dismiss employees. (E.g., Camp, supra, 35 Cal.App.4th 620, 631 [implied covenant did not preclude unfair termination where there was no express or implied-in-fact contract limiting employer’s termination rights]; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 480-481 [4 Cal.Rptr.2d 522] [employment contract contained express at-will term; because employee thus could not show her termination broke any “contractual covenant or promise,” implied covenant claim must fail]; Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799, 806 [270 Cal.Rptr. 585] [where contract contained express at-will clause, implied covenant claim must fail because employee could not show her termination without good cause frustrated “the [parties’] intentions and *352reasonable expectations . . . within the contract”].) We affirm that this is the law.17

Of course, as we have indicated above, the employer’s personnel policies and practices may become implied-in-fact terms of the contract between employer and employee. If that has occurred, the employer’s failure to follow such policies when terminating an employee is a breach of the contract itself.

A breach of the contract may also constitute a breach of the implied covenant of good faith and fair dealing. But insofar as the employer’s acts are directly actionable as a breach of an implied-in-fact contract term, a claim that merely realleges that breach as a violation of the covenant is superfluous. This is because, as we explained at length in Foley, the remedy for breach of an employment agreement, including the covenant of good faith and fair dealing implied by law therein, is solely contractual. In the employment context, an implied covenant theory affords no separate measure of recovery, such as tort damages. {Foley, supra, 47 Cal.3d 654, 682-700.) Allegations that the breach was wrongful, in bad faith, arbitrary, and unfair are unavailing; there is no tort of “bad faith breach” of an employment contract.

We adhere to these principles here. To the extent Guz’s implied covenant cause of action seeks to impose limits on Bechtel’s termination rights beyond those to which the parties actually agreed, the claim is invalid. To the extent the implied covenant claim seeks simply to invoke terms to which the parties did agree, it is superfluous. Guz’s remedy, if any, for Bechtel’s alleged violation of its personnel policies depends on proof that they were contract *353terms to which the parties actually agreed. The trial court thus properly dismissed the implied covenant cause of action.18

IV. Age discrimination claim.

Bechtel urges that the trial court correctly granted summary adjudication against Guz’s claim that he was terminated because of his age, in violation of the FEHA.19 Bechtel contends that, in order to survive summary judgment, Guz was obliged to demonstrate a prima facie case of discrimination, but could not do so because it is undisputed that the bulk of his duties were assumed by an older employee. Alternatively, Bechtel insists it proffered a legitimate, nondiscriminatory reason for Guz’s termination, i.e., a reduction in force resulting in the elimination of his job, which Guz failed to rebut with evidence that this justification was a pretext for age-related animus against him.

We agree with Bechtel that it was entitled to judgment as a matter of law against Guz’s age discrimination claim. In support of its motion for summary judgment, Bechtel offered extensive evidence of its reasons, unrelated to age, for eliminating BNI-MI, and for the ensuing individual personnel decisions that led to Guz’s final release. In substantial measure, Guz’s written response to Bechtel’s motion conceded the truth, if not the wisdom, of Bechtel’s explanation. To survive summary judgment, Guz was thus obliged to point to evidence raising a triable issue—i.e., permitting an inference—that, notwithstanding Bechtel’s showing, its ostensible reasons were a mask for prohibited age bias.

To sustain that burden, Guz first argues there are several triable bases for concluding that Bechtel’s stated reasons are false. None of Guz’s theories are persuasive. As sole independent support for an inference that Bechtel discriminated, Guz cites comparative-age evidence which suggests, in his view, that Bechtel’s decisions favored younger over older workers. But Guz’s claim of statistical age bias is weak in numerous respects. In the face of Bechtel’s strong and unrebutted showing that it took its actions for nondiscriminatory reasons, the evidence of age favoritism on which Guz *354relies manifestly lacks sufficient probative force to allow a finding of intentional age discrimination. In the pages that follow, we explain our reasoning in detail.

A. General principles (McDonnell Douglas test).

Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. (See, e.g., Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1316 [237 Cal.Rptr. 884] {Mixon).) In particular, California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, including age discrimination, based on a theory of disparate treatment. {Texas Dept, of Community Affairs v. Burdine (1981) 450 U.S. 248 [101 S.Ct. 1089, 67 L.Ed.2d 207] {Burdine); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (McDonnell Douglas); Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730 [35 Cal.Rptr.2d 181] {Martin); Ewing v. Gill Industries, Inc. (1992) 3 Cal.App.4th 601, 610-611, 614 [4 Cal.Rptr.2d 640] (Ewing); County of Alameda v. Fair Employment & Housing Com. (1984) 153 Cal.App.3d 499, 504 [200 Cal.Rptr. 381]; see Gonzales v. MetPath, Inc. (1989) 214 Cal.App.3d 422, 426 [262 Cal.Rptr. 654].)20

This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.

At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. This step is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job he sought was withdrawn and never filled. (Burdine, supra, 450 U.S. 248, 253-254 [101 S.Ct. 1089, 1093-1094]; Caldwell v. *355 Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202 [48 Cal.Rptr.2d 448] (Caldwell).) While the plaintiff’s prima facie burden is “not onerous” (Burdine, supra, at p. 253 [101 S.Ct. at pp. 1093-1094]), he must at least show “ ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were “based on a [prohibited] discriminatory criterion . . . .” [Citation].’ [Citation.]” (Ibarbia v. Regents of University of California (1987) 191 Cal.App.3d 1318, 1327-1328 [237 Cal.Rptr. 92], quoting Furnco Construction Corp. v. Waters (1978) 438 U.S. 567, 576 [98 S.Ct. 2943, 2949, 57 L.Ed.2d 957].)

The specific elements of a prima facie case may vary depending on the particular facts. (Burdine, supra, 450 U.S. 248, 253, fn. 6 [101 S.Ct. 1089, 1094]; see also Teamsters, supra, 431 U.S. 324, 358 [97 S.Ct. 1843, 1866].) Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. (E.g., Burdine, supra, at p. 253 [101 S.Ct. at pp. 1093-1094]; Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 917 (Nidds) [FEHA claim]; Rose v. Wells Fargo & Co. (9th Cir. 1990) 902 F.2d 1417, 1421.)21

If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. (St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 506 [113 S.Ct. 2742, 2746-2747, 125 L.Ed.2d 407] (Hicks); Burdine, supra, 450 U.S. 248, 254 [101 S.Ct. 1089, 1094].) This presumption, though “rebuttable,” is “legally mandatory.” (Burdine, supra, at p. 254, fn. 7 [101 S.Ct. at p. 1094]; see also Hicks, supra, at p. 506 [113 S.Ct. at pp. 2746-2747].) Thus, in a trial, “[i]f the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.” (Burdine, supra, at p. 254 [101 S.Ct. at p. 1094], fn. omitted; see also Hicks, supra, at p. 506 [113 S.Ct. at pp. 2746-2747].)

Accordingly, at this trial stage, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to “raise[] a genuine issue of fact” and to “justify a judgment for the [employer],” that its *356action was taken for a legitimate, nondiscriminatory reason. (Burdine, supra, 450 U.S. at pp. 254-255 [101 S.Ct. at p. 1094]; Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 663-664 [8 Cal.Rptr.2d 151] (Clark); see Hicks, supra, 509 U.S. at pp. 506-507, 509 [113 S.Ct. at pp. 2746-2747, 2748] [“evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason” (italics omitted)].)

If the employer sustains this burden, the presumption of discrimination disappears. (Hicks, supra, 509 U.S. 502, 510-511 [113 S.Ct. 2742, 2748-2749] ; Burdine, supra, 450 U.S. 248, 255 [101 S.Ct. 1089, 1094-1095]; Mixon, supra, 192 Cal.App.3d 1306, 1319.) The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. (Hicks, supra, at pp. 515-518 [113 S.Ct. at pp. 2751-2753]; Burdine, supra, at p. 256 [101 S.Ct. at p. 1095]; Clark, supra, 6 Cal.App.4th 639, 664-665.) In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. (Reeves, supra, 530 U.S. 133, 148-149 [120 S.Ct. 2097, 2109]; Hicks, supra, at pp. 511, 518 [113 S.Ct. at pp. 2749-2750, 2753].) The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. (Reeves, supra, 530 U.S. at pp. 142-143 [120 S.Ct. at p. 2106]; Hicks, supra, at p. 518 [113 S.Ct. at p. 2753]; U. S. Postal Service Bd. of Govs. v. Aikens (1983) 460 U.S. 711, 716 [103 S.Ct. 1478, 1482, 75 L.Ed.2d 403]; Burdine, supra, at p. 256 [101 S.Ct. at p. 1095].)

B. Application.

The Courts of Appeal have pondered how the McDonnell Douglas formula should apply, under California law, to an employer’s motion for summary judgment against a claim of prohibited discrimination. Code of Civil Procedure section 437c provides that on summary judgment, the moving party must establish entitlement to “judgment as a matter of law.” (Id., subd. (c).) A moving defendant may do so by “show[ing]” that the plaintiff’s action “has no merit” (id., subds. (a), (c)(2)), i.e., that “one or more elements . , . cannot be established” or “there is a complete defense” (ibid.). Only after the defendant has met that burden must the plaintiff respond with admissible evidence raising a triable issue. (Ibid.)

Several California decisions have suggested that because a plaintiff opposing summary judgment need not demonstrate triable issues until the moving defendant has made an initial no-merit “showing],” the McDonnell Douglas burdens are “reversed” on a defense motion for summary judgment against a claim of discrimination in employment. (Sada v. Robert F. Kennedy *357 Medical Center (1997) 56 Cal.App.4th 138, 150-151 [65 Cal.Rptr.2d 112]; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 216 [51 Cal.Rptr.2d 642]; Martin, supra, 29 Cal.App.4th 1718, 1730-1731; University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036 [272 Cal.Rptr. 264] (University of Southern California)). Other California cases, however, have indicated that the plaintiff can survive an employer’s motion for summary judgment only by presenting, at the outset, triable evidence satisfying the prima facie elements of McDonnell Douglas. (See, e.g., Horn, supra, 72 Cal.App.4th 798, 805-807; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002-1006 [67 Cal.Rptr.2d 483] (Hersant); Caldwell, supra, 41 Cal.App.4th 189, 203.)

Bechtel urges we adopt the latter view and impose an initial prima facie burden on a plaintiff opposing an employer’s motion for summary judgment. Here, Bechtel insists, Guz could not demonstrate a prima facie case, because the transfer of Guz’s specific BNI-MI duties to an older worker, Shaeffer, negated an inference of anti-age animus as a matter of law.

In response, Guz argues he should have no prima facie burden to avoid summary judgment. However, Guz asserts, if he did have such a burden, he satisfied it by pointing to evidence that, when implementing its work force reduction, Bechtel treated younger employees more favorably than older.

We need not resolve the “prima facie burden” issue, for an alternative analysis disposes of Guz’s cause of action. In its summary judgment motion, Bechtel did not stand mute, relying solely on the premise that Guz failed to demonstrate a prima facie case of age discrimination. As an additional basis for its motion, Bechtel proceeded directly to the second step of the McDonnell Douglas formula. Bechtel set forth competent, admissible evidence (Reeves, supra, 530 U.S. 133, 142-143 [120 S.Ct. 2097, 2106]; Hicks, supra, 509 U.S. 502, 507 [113 S.Ct. 2742, 2747]; Burdine, supra, 450 U.S. 248, 254-255 [101 S.Ct. 1089, 1094-1095]) of its reasons, unrelated to age bias, why it eliminated Guz’s work unit, BNI-MI, and thereafter chose persons other than Guz for vacant positions in the unit to which BNI-MI’s functions were transferred.

Bechtel’s explanation of nondiscriminatory reasons was creditable on its face. Indeed, as we explain below, Guz has largely conceded the truth, if not the wisdom, of Bechtel’s proffered reasons. Guz thus had the burden to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred. (See discussion, post.) For reasons we hereafter set forth, Guz has failed to do so.

As an initial matter, Bechtel argues that the exercise of its prerogative to eliminate Guz’s work unit and position constitutes, as a matter of law, a *358legitimate, nondiscriminatory reason for his termination. However, downsizing alone is not necessarily a sufficient explanation, under the FEHA, for the consequent dismissal of an age-protected worker. An employer’s freedom to consolidate or reduce its work force, and to eliminate positions in the process, does not mean it may “use the occasion as a convenient opportunity to get rid of its [older] workers.” (Matthews v. Commonwealth Edison Co. (7th Cir. 1997) 128 F.3d 1194, 1195; see also, e.g., Cronin v. Aetna Life Ins. Co. (2d Cir. 1995) 46 F.3d 196, 204 (Cronin); Uffelman v. Lone Star Steel Co. (5th Cir. 1989) 863 F.2d 404, 407-408.) Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release. Where these are issues, the employer’s explanation must address them. (See, e.g., Throgmorton v. U.S. Forgecraft Corp. (8th Cir. 1992) 965 F.2d 643, 646-647.)

On the other hand, if nondiscriminatory, Bechtel’s true reasons need not necessarily have been wise or correct. (See, e.g., Horn, supra, 72 Cal.App.4th 798, 807; Hersant, supra, 57 Cal.App.4th 997, 1009.) While the objective soundness of an employer’s proffered reasons supports their credibility (see discussion, post), the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, “legitimate” reasons (Burdine, supra, 450 U.S. at p. 254 [101 S.Ct. at p. 1094]) in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. (See, e.g., Kariotis v. Navistar Intern. Transp. Corp. (7th Cir. 1997) 131 F.3d 672, 676 [suggesting that proffered reasons, if “nondiscriminatory on their face” and “honestly believed” by employer, will suffice even if “foolish or trivial or baseless”]; McCoy v. WGN Continental Broadcasting Co. (7th Cir. 1992) 957 F.2d 368, 373 [ultimate issue is whether employer “honestly believed in the reasons it offers”]; see also Fuentes v. Perskie (3d Cir. 1994) 32 F.3d 759, 765 [issue is discriminatory animus, not whether employer’s decision was “wrong or mistaken,” or whether employer is “wise, shrewd, prudent, or competent”].)22

With these principles in mind, we examine Bechtel’s showing of its reasons for the decisions leading to Guz’s dismissal. A substantial portion of *359this evidence was the deposition testimony of Bechtel officials, given under questioning by Guz’s counsel.

As noted above, BNI president Johnstone explained at length why he decided to eliminate BNI-MI. Johnstone testified as follows: After assuming BNI’s presidency, he grew frustrated with BNI-MI’s size, work product, and budget overruns. On the other hand, he had high regard for a similar Bechtel entity, SFRO-MI, with which he had worked in the past. Because SFRO-MI, unlike BNI-MI, provided management information services to many different Bechtel entities, he believed BNI could achieve economies of scale by relying on SFRO-MI, rather than BNI’s own in-house unit, for such services. After receiving a budget proposal from SFRO-MI that fell well below BNI-MI’s current budget, he decided SFRO-MI could perform BNI-MI’s work better and more cheaply.

James Tevis, SFRO-MI’s manager, testified at length why, when reorganizing SFRO-MI to assume BNI-MI’s work, he gave most of the duties Guz had performed to a current SFRO-MI staff member, John Shaeffer. Tevis also explained why he hired Robert Wraith and Christine Siu to perform work they had been doing at BNI-MI, why he promoted SFRO-MI members John Wallace and Jan Vreim to vacant positions within that unit, and why Barbara Stenho was chosen for another vacant SFRO-MI position.

Thus, Tevis recounted that during the transition, he consulted with his BNI-MI counterpart, Goldstein, about which, if any, BNI-MI employees might assist SFRO-MI in assuming BNI-MI’s functions. Guz was discussed in this context. However, Tevis, who was keenly aware of the need for cost savings, felt that his own current employees, Shaeffer and Chris Gee, could assume Guz’s overhead duties, and Goldstein agreed. Tevis did contemplate two new positions at SFRO-MI (in place of the six eliminated at BNI-MI). One of these positions would involve “knowledge of the project side” of Bechtel’s business. The other, which Tevis wished to fill at a relatively junior salary grade, would be computer-intensive, and would require facility in Bechtel’s new ORS computer operating system. On these bases, the 50-year-old Goldstein, Guz’s longtime supervisor and close friend, recommended Wraith and Siu, and not Guz, as the best choices for reassignment to SFRO-MI.

Tevis further indicated why Wallace, Vreim, and Stenho were chosen for positions that later became open at SFRO-MI while Guz was on holding status. First, it became clear, Wallace and Vreim were SFRO-MI veterans, so *360Tevis had direct experience with their backgrounds, skills, performance levels, and work habits. Moreover, as Tevis explained, the job to which Wallace was promoted required substantial supervisory and computer skills and a project background that would allow effective communication with BNI president Johnstone. Vreim, Wallace’s former subordinate, was promoted to Wallace’s old position. She was selected for her ORS computer skills, project experience, and supervisory background.

Stenho had not previously worked for SFRO-MI, but, according to Tevis, hers was a special case in another way. Her principal SFRO-MI duty would be to provide management information services to a particular Bechtel entity, Bechtel Civil. Stenho was selected because she had previously worked for Bechtel Civil. That department, unhappy with the services it had been receiving from SFRO-MI, specifically requested that the incumbent SFRO-MI employee, Robert Luchini, be transferred, and that Stenho be assigned to replace him.

Finally, Tevis explained why he had not considered Guz for these positions. Tevis thought Guz “only did overhead,” did not realize Guz had supervisory experience, and, in one case “did not even know . . . Guz was available.” In particular, Tevis mentioned Guz’s poor computer skills, as reported to him by Goldstein.23

Bechtel’s showing of reasons was made by competent and admissible evidence (Code Civ. Proc., § 437c, subd. (d)). Moreover, the reasons advanced were legally sufficient to establish that Guz’s FEHA cause of action had no merit (Code Civ. Proc., § 437c, subd (g)(2)), because they were manifestly unrelated to intentional age bias against Guz. If Bechtel’s showing of proffered reasons is true, Guz’s allegations of intentional age discrimination thus fail, and Bechtel is entitled to judgment as a matter of law. (Id., subd. (c); Martin, supra, 29 Cal.App.4th 1718, 1732.) Thus, even if Guz had no initial burden to demonstrate a prima facie case of discrimination—a question we do not decide—Guz did have a burden, in the face of Bechtel’s showing of nondiscriminatory reasons, to show there was nonetheless a triable issue that decisions leading to Guz’s termination were actually made on the prohibited basis of his age. (Code Civ. Proc., § 437c, subd. (o)(2); cf. Calvillo-Silva, supra, 19 Cal.4th 714, 735.)

Moreover, an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. *361The pertinent statutes do not prohibit lying, they prohibit discrimination. (Hicks, supra, 509 U.S. 502,521 [113 S.Ct. 2742, 2754-2755].) Proof that the employer’s proffered reasons are unworthy of credence may “considerably assist” a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. (Id., at p. 517 [113 S.Ct. at pp. 2752-2753].) Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions. (Id., at pp. 510-520 [113 S.Ct. at pp. 2748-2754].) Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.24

The United States Supreme Court’s recent decision in Reeves, supra, 530 U.S. 133 [120 S.Ct. 2097] confirms this principle. Reeves rejected several federal court of appeals decisions holding that even after the plaintiff has presented prima facie evidence sufficient to establish an inference of prohibited discrimination in the absence of explanation, and has also presented evidence that the employer’s innocent explanation is false, the employer is nonetheless necessarily entitled to judgment as a matter of law unless the plaintiff thereafter presents further evidence that the true reason was discriminatory. (Id., at pp. 146-149 [120 S.Ct. at pp. 2108-2109].) Contrary to these decisions, Reeves confirmed that, in a particular case, a plaintiff’s showing of pretext, combined with sufficient prima facie evidence of an act motivated by discrimination, may permit a finding of discriminatory intent, and may thus preclude judgment as a matter of law for the employer. (Id., at pp. 148-149 [120 S.Ct. at p. 2109].)

But Reeves made clear that even where the plaintiff has presented a legally sufficient prima facie case of discrimination, and has also adduced some evidence that the employer’s proffered innocent reasons are false, the fact *362finder is not necessarily entitled to find in the plaintiff’s favor. Thus, the court admonished, its holding should not be interpreted to mean “that such a showing will always be adequate to sustain a . . . finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. [Citations.] .... [ft Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case . . . .” (Reeves, supra, 530 U.S. 133, 148-149 [120 S.Ct. 2097, 2109], second italics added.)25

Though Reeves discusses the federal age discrimination scheme, we find its reasoning sound for purposes of our similar law. We therefore conclude that Guz’s age discrimination claim under the FEHA cannot survive Bechtel’s motion for summary judgment unless the evidence in the summary judgment record places Bechtel’s creditable and sufficient showing of innocent motive in material dispute by raising a triable issue, i.e., a permissible inference, that, in fact, Bechtel acted for discriminatory purposes. (See, e.g., Martin, supra, 29 Cal.App.4th 1718, 1735.) As Reeves indicated, summary judgment for the employer may thus be appropriate where, given the strength of the employer’s showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred. Such is the case here.

*363Guz argues at length that the evidence raises a triable issue of the falsity of Bechtel’s proffered reasons. The authorities suggest that, in an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions. (See, e.g., Ewing, supra, 3 Cal.App.4th 601, 615; Tinker v. Sears, Roebuck & Co. (6th Cir. 1997) 127 F.3d 519, 523; Testerman v. EDS Technical Products Corp. (7th Cir. 1996) 98 F.3d 297, 303; Bechtel Construction Co. v. Secretary of Labor (11th Cir. 1995) 50 F.3d 926, 935; but see, e.g., Horn, supra, 72 Cal.App.4th 798, 807 [plaintiff cannot simply show employer’s decision was mistaken or unwise]; Hersant, supra, 57 Cal.App.4th 997, 1005 [same].)

Here, however, the record contains no direct evidence, and little if any circumstantial support, for such a finding. Indeed, Guz has made substantial concessions to the truth of Bechtel’s proffered nondiscriminatory reasons for its decision to eliminate BNI-MI and for choosing others to fill positions at SFRO-MI. In its separate statement of undisputed facts (Undisputed Fact Statement) accompanying the motion for summary judgment (see Code Civ. Proc., § 437c, subd. (b)), Bechtel asserted, on the basis of BNI president Johnstone’s deposition testimony, that BNI-MI was eliminated because Johnstone was concerned about BNI-MI’s performance, had prior satisfactory experience with SFRO-MI, and believed BNI would save money by eliminating its own management information unit and obtaining such services from SFRO-MI, which already served many Bechtel entities. In his required written response to the Undisputed Fact Statement, Guz admitted Johnstone considered BNI-MI’s group performance. Guz otherwise “[disputed” Bechtel’s explanation only to stress that Johnstone considered such specific cost issues as BNI-MI’s overhead budget and the salaries of its employees.26

Similarly, the Undisputed Fact Statement, relying on Tevis’s deposition testimony, explained Bechtel’s decisions to fill SFRO-MI positions with Wraith, Siu, Wallace, Vreim, and Stenho. The Undisputed Fact Statement asserted that Wraith was selected to do “project and proposals work based on his familiarity with project work and PFSR experience.” Guz’s response claimed this was “[disputed,” but his required citation of supporting evidence (Code Civ. Proc., § 437c, subd. (b))—a passage from Tevis’s deposition—did not materially contradict Bechtel’s claim. The Undisputed Fact *364Statement said Siu was selected “to perform [ORS] input based on her familiarity with the ORS and her grade level.” Guz responded that this was “[u]ndisputed,” except that by considering Siu’s grade level, Tevis also necessarily considered her salary. Finally, the Undisputed Fact Statement set forth the particular qualifications that led Tevis to choose Wallace, Vreim, and Stenho for the positions they filled. Again, in his response, Guz raised no material dispute to the reasons given by Bechtel. Guz also admitted he had recommended SFRO-MI member Shaeffer as the logical choice to assume Guz’s duties if Guz were laid off. Thus, much of Bechtel’s explanation for the reasons, unrelated to Guz’s age, that led to Guz’s termination stands uncontradicted.

Guz nonetheless stresses several bases for finding that Bechtel’s reasons were pretextual. With respect to the decision to eliminate BNI-MI, Guz emphasizes that over time Bechtel has phrased in different ways its reasons for taking this action. Thus, Guz notes, Goldstein told him the decision to transfer BNI-MI’s functions to SFRO-MI was to reduce costs, but in Guz’s official layoff notice, Goldstein’s superior, Dewey, blamed BNI-MI’s demise on a “downturn in our workload.” Such “shifting,” and “inconsistent” statements, Guz urges, are evidence of dissembling. Guz further points to evidence that Bechtel’s purported reasons for eliminating BNI-MI were unsound, and therefore likely untrue, in that Bechtel’s business was strong, and that the elimination of BNI-MI would not save costs.

However, as noted above, Guz has essentially conceded that the reasons cited by Bechtel in support of its motion for summary judgment—cost efficiency and concerns about BNI-MI’s performance as a unit—were the true reasons why Bechtel decided to eliminate BNI-MI. Hence, even if a Bechtel official once used the phrase “downturn in . . . workload,” and even if the cost efficiencies of eliminating BNI-MI are debatable on their merits, such facts are of little or no relevance in determining that Bechtel’s cited reasons were a mask for prohibited age discrimination.27

Guz also suggests a triable issue that Bechtel has given pretextual reasons why he was selected for layoff. Here Guz cites Bechtel’s “unexplained” *365failure to follow its RIF Guidelines, in that Bechtel laid him off without conducting a formal force ranting, did not help him find a new Bechtel job while he was on holding status, and did not fairly consider him for the vacant SFRO-MI positions. On the latter points, Guz stresses evidence from Tevis’s deposition that Tevis never saw Guz’s resume and was unaware of Guz’s full qualifications and availability. (See ante, at p. 331.) Moreover, Guz points out, Tevis admitted, after seeing Guz’s resume for the first time, that he might have considered Guz qualified for certain of the SFRO-MI jobs. (Ibid.) Guz suggests that in any event, Tevis’s excuses for failing to consider him are inherently implausible.

However, neither any failure by Bechtel to conduct the reorganization with full formality, nor Tevis’s lack of complete information about Guz’s background and availability, strongly suggests that the reasons Bechtel gave for releasing Guz are false. As we have already seen, in his response to Bechtel’s summary judgment motion, Guz made major concessions to both the plausibility and the truthfulness of Bechtel’s proffered reasons. Essentially uncontradicted are Bechtel’s showings (1) that Guz himself proposed Shaeffer as the logical choice to assume Guz’s overhead duties, (2) that Tevis had non-age-related business reasons for hiring Wraith, Siu, Wallace, Vreim, and Stenho, and (3) that those persons were well qualified for their positions.

Moreover, Guz has raised no serious dispute to Tevis’s testimony that Goldstein recommended Wraith and Siu over Guz and advised Tevis that in the area of computer stills, an important qualification for most of the SFRO-MI jobs, Guz was relatively deficient. Guz has submitted a declaration by Goldstein, who states therein that Guz was qualified for the vacant SFRO-MI positions. However, Goldstein does not contradict Tevis’s claims about their discussions concerning Guz. Indeed, in his most recent written evaluation of Guz, issued in March 1992, Goldstein had stated that for long-term success in the company, Guz needed to become more “computer literate.”

Nor is there any evidence or inference of Bechtel’s bad faith effort to prevent or impede Guz’s fair consideration for suitable Bechtel positions. For all that appears, any such lapse arose, as much as anything, from Guz’s own inaction. As noted above (ante, at p. 331), Guz asserts no personal efforts to find a Bechtel reassignment. In particular,- it. appears Guz did not proffer his resume to Tevis, though he knew Tevis’s unit was assuming BNI-MI’s functions, and he could easily have taken that step.

Thus, despite Bechtel’s policy to provide placement assistance to laid-off employees, Tevis’s testimony that he lacked full information about Guz’s *366skills or availability and did not fully consider Guz is neither implausible nor ominous, but understandable. For Bechtel’s part, it is undisputed that the company renewed Guz’s initial three-month holding status for a second three months, in order to afford Guz additional time, while receiving company benefits, to find a suitable reassignment.

In sum, we see no grounds in this record for an inference that Bechtel has materially dissembled in explaining the reasons, unrelated to chronological age, for the personnel decisions leading to Guz’s dismissal. Under such circumstances, any independent circumstantial evidence of discrimination is insufficient to raise a rational inference that Bechtel acted on grounds of prohibited bias.

At the outset, Bechtel insists that an inference of intentional age discrimination is negated solely by the fact that Shaeffer, an older employee, assumed most of the duties Guz was performing before he was laid off. Guz responds by citing facts he claims amount to a prima facie showing that age bias infected the various personnel decisions leading to his release. Stripped to its essentials, Guz’s case relies on the facts that despite his own qualifications and satisfactory performance, (1) he, then age 49, and three of the other five BNI-MI employees (respectively ages 50, 45, and 44) were terminated by Bechtel after that unit’s elimination, while the only two persons retained, Wraith, age 41, and Siu, age 34, were the youngest of the group, and (2) two of the three persons later hired by SFRO-MI while Guz was on holding status—Wallace, age 43, and Stenho, age 38—were significantly younger than he.

Where an age-protected worker is directly replaced by a person not significantly younger, there may be no basis to suspect a motive of prohibited bias. (E.g., Maxfleld v. Sinclair Intern. (3d Cir. 1985) 766 F.2d 788, 793; cf. O’Connor v. Consolidated Coin Caterers Corp. (1996) 517 U.S. 308 [116 S.Ct. 1307, 134 L.Ed.2d 433] (O’Connor) [logical inference of age discrimination may arise where replacement is significantly younger, even if not below statutorily protected age].) But where jobs are eliminated and duties reallocated during a general work force reduction, the issue of discriminatory motive becomes more complicated. In the context of a work force reduction, it has been said that the plaintiff’s failure to prove his direct “ ‘replacement by a younger employee is “not necessarily fatal” ’” to a claim of discrimination; instead, he need only show, prima facie, that persons significantly younger, but otherwise similarly situated, were “ ‘treated more favorably.’” (Nidds, supra, 113 F.3d 912, 917, quoting Washington v. Garrett (9th Cir. 1994) 10 F.3d 1421, 1434; but see, e.g., Barnes v. GenCorp Inc. (6th Cir. 1990) 896 F.2d 1457, 1465; Simpson v. Midland-Ross Corp. (6th Cir. 1987) 823 F.2d 937, 942-944 {Simpson).)

*367A number of federal decisions have applied the more-favorable-treatment principle to conclude, on facts somewhat analogous to those before us, that a prima facie inference of discrimination can arise from evidence that during a work force reduction, a satisfactory age-protected worker was laid off, while younger employees were retained in similar jobs, or were reassigned to positions for which the plaintiff also qualified. (E.g., Jameson v. Arrow Co. (11th Cir. 1996) 75 F.3d 1528, 1533 [older layoff candidate applied for new assignment fitting his qualifications, but was rejected for younger person]; Cronin, supra, 46 F.3d 196, 204 [during work force reduction, employer located positions for younger, but not older, employees]; Branson v. Price River Coal Co. (10th Cir. 1988) 853 F.2d 768, 111 [employer fired older employees but retained younger employees in similar positions]; Coburn v. Pan American World Airways, Inc. (D.C. Cir. 1983) 711 F.2d 339, 342 [229 App.D.C. 61] [evidence that during work force reduction, plaintiff was “disadvantaged” in favor of younger person]; see also Hebert v. Mohawk Rubber Co. (1st Cir. 1989) 872 F.2d 1104, 1111 [evidence that while age-protected worker was laid off, younger workers were retained in the same position].)

However, in other cases where alleged numerical favoritism of younger workers arose within an extremely small employee pool, courts have rejected any consequent inference of intentional bias on grounds, among others, that the sample was too minuscule to demonstrate a statistically reliable discriminatory pattern. (See, e.g., Fallis v. Kerr-McGee Corp. (10th Cir. 1991) 944 F.2d 743, 745-746 [showing that a greater percentage of over-40 than under-40 workers were laid off is nonprobative because the relevant sample, 51 employees, was too small for statistical reliability]; Sengupta v. Morrison-Knudsen Co., Inc. (9th Cir. 1986) 804 F.2d 1072, 1076 [showing that, among 28 employees, four of five laid off were Black did not establish prima facie case; statistical sample too small]; see also Simpson, supra, 823 F.2d 937, 943 [even if “age-weighted departure” evidence, based on statistics, established prima facie case, it was insufficient to withstand employer’s strong showing of performance-based reasons, where sample was based on only 17 persons]; cf. Mayor v. Educational Equality League (1974) 415 U.S. 605, 611 [94 S.Ct. 1323, 1329, 39 L.Ed.2d 630] [where citizen committee appointed by mayor had only 13 positions, statistical showing of race discrimination in appointments was not reliable where a change of only one person “meant an 8% change in racial composition”].)

Here, for several reasons, we conclude the comparative-age evidence cited by Guz, even if barely adequate to demonstrate a prima facie case, is insufficient for trial in the face of Bechtel’s strong contrary showing that its reasons were unrelated to age-related bias. In the first place, the statistical inferences to be drawn from Guz’s raw age comparisons are not nearly as *368strong as he implies. As suggested above, the premise that Bechtel purposely favored two workers on the basis of youth when deciding which BNI-MI employees to retain is weakened, for statistical purposes, by the small size of that unit, which included only six persons. A similar analysis applies to the three other positions for which Guz claims, or implies, he should have been considered at SFRO-MI.28

Any arguable discriminatory inference is further diluted by other age-based evidence from which a contrary conclusion might be drawn. Thus, while it is not dispositive that, consistent with Guz’s earlier recommendation, his own duties went to an older worker, Shaeffer, that fact significantly undermines any suspicion that chronological age influenced Guz’s dismissal. Similar doubt arises from the fact that at age 52, Vreim, one of the three workers later selected for an open position in SFRO-MI, was also older than Guz.

Moreover, an issue arises whether the younger persons with whom Guz seeks comparison were younger enough to raise a logical suspicion of intentional age bias. Courts have differed about the exact gap in age that is significant for purposes of a discriminatory inference. (See, e.g., Koster v. Trans World Airlines, Inc. (1st Cir. 1999) 181 F.3d 24, 31 [applying Massachusetts law: prima facie case is established where duties of 49- and 48-year-olds were partially assumed by 25-year-old]; Schiltz v. Burlington Northern R.R. (8th Cir. 1997) 115 F.3d 1407, 1413 [five-year age gap between plaintiff applicant and persons selected is not significant]; Barber v. CSX Distribution Services (3d Cir. 1995) 68 F.3d 694, 699 [eight-year difference between plaintiff and successful applicant is significant]; Healy v. New York Life Ins. Co. (3d Cir. 1988) 860 F.2d 1209, 1214 [replacement of 56-year-old senior manager by person nine years younger is significant]; Douglas v. Anderson (9th Cir. 1981) 656 F.2d 528, 533 [replacement of 54-year-old bookstore manager by person five years younger is significant].) One federal circuit follows the rule that any gap less than 10 years is presumptively insignificant, but the plaintiff can overcome the presumption with other evidence that the employer considered his age significant. (Hartley v. Wisconsin Bell, Inc. (7th Cir. 1997) 124 F.3d 887, 892-893; see also Richter, supra, 142 F.3d 1024, 1029.)

*369Here, Wraith, one of the two reassigned BNI-MI employees, and Wallace, who took one of the later open positions at SFRO-MI, were, like Guz, in their mid-career 40’s. Wraith, at 41, was eight years younger than the 49-year-old Guz, and Wallace, at 43, was only six years younger. There is no independent indication whatever that Bechtel considered the age differences among these three workers significant. Of the four younger persons Guz alleges were treated more favorably than he, only two were over 10 years younger. Guz does not dispute that one of these two, the 38-year-old Stenho, was uniquely qualified for her SFRO-MI job; she was hired, at the specific request of Bechtel Civil, to provide service to that office, where she had previously worked. (See discussion, ante.) Under these circumstances, Guz’s arithmetic does not, in our view, strongly support a logical inference “ ‘that [Bechtel’s] employment decisions] [were] based on a[n] [illegal] discriminatory criterion.’” (O’Connor, supra, 517 U.S. 308, 312 [116 S.Ct. 1307, 1310], quoting Teamsters, supra, 431 U.S. 324, 358 [97 S.Ct. 1843, 1866], first three brackets added, italics omitted.)

Any inference that Guz’s raw age comparisons indicate age-based discrimination is further blurred by the weak evidence that the workers retained or hired over him were similar or comparable except for their dates of birth. Guz does not appear to dispute that the six individual members of the eliminated unit, BNI-MI, performed distinct duties at disparate ranks and levels of responsibility. The available SFRO-MI positions were also distinct, and it appears essentially undisputed that those jobs were filled by persons who fit their individual requirements as well as, or better than, Guz. As previously noted, most of these positions required considerable computer facility, while Guz’s skills in this area were mediocre at best. The qualifications for Stenho’s position essentially excluded any other candidate for that job. These variances undermine any rational conclusion from the raw age data that age was a significant factor in Bechtel’s decisions to choose others instead of Guz.29

In sum, even without considering Bechtel’s explanation, Guz’s evidence raised, at best, only a weak suspicion that discrimination was a likely basis *370for his release. Against that evidence, Bechtel has presented a plausible, and largely uncontradicted, explanation that it eliminated BNI-MI, and chose others over Guz, for reasons unrelated to age. Indeed, Guz has raised little argument against Bechtel’s further claim that, even if he was minimally qualified for the positions he lost, those persons who were actually chosen better fit Bechtel’s needs.

Under these circumstances we conclude, as a matter of law, that Guz has failed to point to evidence raising a triable issue that Bechtel’s proffered reasons for its actions were a pretext for prohibited age discrimination. Bechtel is therefore entitled to summary judgment on this claim.

Conclusion

For the reasons set forth herein, the judgment of the Court of Appeal is reversed. The cause is remanded to the Court of Appeal for further proceedings consistent with this opinion.

George, C. J., Mosk, J., Werdegar, J., Chin, J., and Brown, J., concurred.

MOSK, J.

I concur in the majority opinion. I write separately to clarify what may appear to be an inconsistency between parts II and IV of that opinion.

In part II, the majority hold that there was insufficient evidence from which a reasonable jury could conclude that Bechtel National, Inc.’s (BNI) business reorganization was merely a pretext to terminate John Guz. There is therefore no triable issue that BNI breached its implied contractual obligation by failing to follow the “progressive discipline” policy promised in its policy manual to its employees before they are discharged for poor performance. The majority do not decide, however, whether there is a triable issue regarding BNI’s breach of its own layoff policies, and leave this question to the Court of Appeal on remand. If the Court of Appeal concludes there is *371such a triable issue, and if Guz is able to prove at trial that these policies were breached, and that if he had been fairly considered for a position as dictated in the policies, he would more likely than not have retained his job, then Guz will have proved a contractual wrongful termination and be eligible for the usual damages associated with such a termination.

In part IV, the majority conclude that there is insufficient evidence from which a reasonable jury could conclude that BNI’s termination of Guz was based on age discrimination. In so doing, the majority view this case as fitting into the class of cases discussed in Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148-149 [120 S.Ct. 2097, 2109, 147 L.Ed.2d 105], in which “although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory.” The Reeves court elaborated, by way of example, that “an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.” (530 U.S. at p. 148 [120 S.Ct. at p. 2109].) Although the question is close, I agree with the majority that, in light of Guz’s concessions as to the nondiscriminatory nature of many of BNI’s actions, and in light of the weakness of Guz’s prima facie case, this case fits into the relatively narrow class of cases referred to in Reeves.

Nonetheless, although BNI apparently had a nondiscriminatory reason for terminating Guz, that is not to conclude that it necessarily complied with its own contractual layoff policies. Nor does it negate the possibility that had it so complied, Guz would have retained his employment. These possibilities remain to be determined on remand and, if appropriate, at trial.

CHIN, J., Concurring.

I agree with the majority. I write separately to state another reason the trial court correctly granted summary judgment against plaintiff John Guz on the age discrimination claim: Even after “extensive discovery” (maj. opn., ante, at p. 327), Guz has produced no credible evidence that defendants Bechtel National, Inc., and Bechtel Corporation (collectively Bechtel) discharged him because of his age. Bechtel, the moving party on summary judgment, has met its burden of showing that Guz cannot state a prima facie age discrimination case. Accordingly, Bechtel had no duty even to rebut Guz’s age discrimination claim, although I agree that it also did so.

*372I. The Legal Standard for Summary Judgment

To prevail at trial, indeed, to avoid a nonsuit, the plaintiff bears the burden of establishing a prima facie case of discrimination. (See generally McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668]; maj. opn., ante, at pp. 354-355; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203-204 [48 Cal.Rptr.2d 448].) I agree with the majority regarding what this prima facie burden is. It is not onerous, but the plaintiff must show that the employer’s actions, if unexplained, support an inference that they were more likely than not based on a prohibited discriminatory criterion. (Maj. opn., ante, at p. 355.) Specifically, the plaintiff must show some “circumstance [that] suggests discriminatory motive.” (Ibid.; see also O’Connor v. Consolidated Coin Caterers Corp. (1996) 517 U.S. 308, 312 [116 S.Ct. 1307, 1310, 134 L.Ed.2d 433].)1

Some uncertainty currently exists regarding the way this rule applies to an employer’s motion for summary judgment in a discrimination action. (Maj. opn., ante, at pp. 356-357.) California’s traditional rule was that to prevail on summary judgment, a “defendant must conclusively negate a necessary element of the plaintiff’s case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].) In 1992 and 1993, however, the Legislature amended Code of Civil Procedure section 437c, the statute concerning summary judgment. (See generally Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 581-584 [37 Cal.Rptr.2d 653].) Today, as relevant, Code of Civil Procedure section 437c, subdivision (o)(2), provides that a defendant has met its burden on summary judgment “of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff. . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”

*373This court has not yet considered the effect of these amendments in a discrimination case. The Courts of Appeal have, however, considered this question in detail, and not always consistently. (See, e.g., the exhaustive discussion in Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64, 69-83 [81 Cal.Rptr.2d 360] (Scheiding).) Some courts have held that to prevail on summary judgment, the defendant need merely point to the plaintiff’s lack of evidence establishing a prima facie case. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002 [67 Cal.Rptr.2d 483] [“The burden-shifting system requires the employee first establish a prima facie case of age discrimination”]; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806 [85 Cal.Rptr.2d 459]; Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at p. 203 [“Thus, the burdens of proof for purposes of a defendant’s motion for summary judgment are precisely the same as those mandated by McDonnell Douglas”).) Others have required the defendant to prove the “plaintiff’s inability to prove its own case . . . .” (Certain Underwriters at Lloyd’s of London v. Superior Court (1997) 56 Cal.App.4th 952, 959 [65 Cal.Rptr.2d 821], italics omitted.) Others have suggested that because the moving party must negate the plaintiff’s right to prevail on a particular issue, the burden is reversed on summary judgment. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150 [65 Cal.Rptr.2d 112]; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 216 [51 Cal.Rptr.2d 642].)

I believe the Court of Appeal cases can generally be reconciled. The recent decisions recognize that Code of Civil Procedure section 437c, subdivision (o)(2), significantly changed California summary judgment law. To prevail on summary judgment, the defendant no longer must conclusively negate the plaintiff’s case. Given the difficulty of proving a negative, such a test is often impossibly high. However, the statute also places an initial burden on the defendant in order to prevail on summary judgment. As explained in Scheiding, the differences in the cases can largely be described as differing degrees of caution rather than outright disagreement. (Scheiding, supra, 69 Cal.App.4th at pp. 82-83.) That case quoted with approval (ibid.) most of the following discussion in Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168 [48 Cal.Rptr.2d 197]: “We cannot agree with those who may be understood to suggest that a moving defendant may shift the burden simply by suggesting the possibility that the plaintiff cannot prove its case. It is clear to us, from the requirement . . . that a defendant have ‘shown that one or more elements of the cause of action . . . cannot be established’ (Code Civ. Proc., § 437c, former subd. (n)(2) [now subd. (g)(2)]; . . .), that a defendant must make an affirmative showing in support of his or her motion. Such a showing connotes something significantly more than simply ‘pointing out to the . . . court’ that ‘there is an absence of evidence’: before *374the burden of producing even a prima facie case should be shifted to the plaintiff in advance of trial, a defendant who cannot negate an element of the plaintiff’s case should be required to produce direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. But where such a showing can be made we consider it both fair to the defendant and consistent with efficient administration of justice that the plaintiff be called upon, on risk of summary judgment, to make a prima facie case.” (Id. at p. 186.)

I think this discussion aptly summarizes the law. To prevail on summary judgment in a discrimination case, the defendant must show that the plaintiff both has not established and cannot reasonably expect to establish a prima facie case. A defendant can meet the former burden merely by showing the absence of evidence of discrimination. But that is not enough. The defendant must also show, by direct or circumstantial evidence, that the plaintiff cannot reasonably expect to obtain a prima facie case. This latter showing, however, is not impossibly difficult. If a plaintiff has had the full opportunity to obtain discovery and to present all available evidence in support of a discrimination claim, and still has failed to establish a prima facie case, the trial court may reasonably infer that the plaintiff cannot do so. If the plaintiff cannot present a prima facie case, a nonsuit at trial would be inevitable. (Code Civ. Proc., § 581c; Caldwell v. Paramount Unified School Dist, supra, 41 Cal.App.4th at pp. 203-204.) In that case, the trial court should grant summary judgment and avoid a useless trial.

II. The Legal Standard Applied to This Case

Bechtel has shown that Guz had a full opportunity to discover and present all available evidence, and that he nonetheless has not stated a prima facie case of age discrimination. This showing meets Bechtel’s burden of establishing that Guz cannot state a prima facie case, thus entitling it to summary judgment on this cause of action. Despite extensive discovery, Guz can point to no comments by anyone during his entire lengthy history with Bechtel suggesting age played a role in employment decisions in general, or in his case in particular, no meaningful statistical evidence, no evidence even of a possible financial or other motive for Bechtel to get rid of its older workers. He cites no evidence suggesting that age was a significant factor in Bechtel’s layoff decision.2

It is true that Guz was a member of the protected class, but that fact alone proves nothing. In a reduction in force, many qualified, productive workers, *375both within and outside a protected class, lose their positions. Older workers may be laid off just like younger ones. The laws against age discrimination do not “ ‘required that younger employees be fired so that employees in the protected age group can be hired.’ ” (Earley v. Champion Intern. Corp. (11th Cir. 1990) 907 F.2d 1077, 1083; see also Vaughan v. MetraHealth Companies, Inc. (4th Cir. 1998) 145 F.3d 197, 204 [age discrimination laws are not “something akin to a strict seniority protection system”]; Jameson v. Arrow Co. (11th Cir. 1996) 75 F.3d 1528, 1532-1533.) Accordingly, “the decision to discharge a qualified, older employee is not inherently suspicious. ... In a [reduction in force], qualified employees are going to be discharged.” (Brocklehurst v. PPG Industries, Inc. (6th Cir. 1997) 123 F.3d 890, 896.)

Like the concurring and dissenting opinion, Guz relies largely on two circumstances to support the age discrimination claim. The first is that, of three positions that employees other than Guz filled while Guz was on holding status, younger employees filled two, and an older employee filled only one. This fact is meaningless. Even aside from the minuscule size of the sampling (see post), Guz does not tell us the average age of persons eligible or considered for these positions. If a majority of those persons were younger than Guz, a majority of those given the positions would likely also be younger. Guz “did not even attempt to place his figures in a relevant context so as to make them meaningful. . . . HO . . . [H]e neglects vital information regarding the pool of applicants and whether, for example, qualified older employees were available or applied for those jobs. . . . [Ejmployee statistics unaccompanied by evidence regarding qualified potential applicants from the relevant labor market . . . lack[] probative value.” (Simpson v. Midland-Ross Corp. (6th Cir. 1987) 823 F.2d 937, 943.) Guz’s related arguments regarding his qualifications relative to those retained does not aid him. “As courts are not free to second-guess an employer’s business judgment, this assertion [that plaintiff was equally or more qualified than the people retained] is insufficient to permit a finding of pretext.” (Branson v. Price River Coal Co. (10th Cir. 1988) 853 F.2d 768, 772.) “Thus, plaintiff’s general dispute concerning his job performance, in the absence of any other evidence of age discrimination, does not provide a sufficient basis for a jury to infer that [the employer] terminated plaintiff on the basis of his age.” (Fallis v. Kerr-McGee Corp. (10th Cir. 1991) 944 F.2d 743, 747.)

The second circumstance Guz cites comes closest to presenting evidence that might suggest age discrimination: Of the six persons in his unit, Bechtel retained the youngest two. This fact also fails to arouse suspicion for several reasons.

First, a group of six is simply too small to be statistically significant. “For [the plaintiff] to show a prima facie case of disparate treatment based solely *376on statistics he must show a 1 “stark” pattern’ of discrimination unexplainable on grounds other than age.” (Palmer v. United States (9th Cir. 1986) 794 F.2d 534, 539; Rose v. Wells Fargo & Co. (9th Cir. 1990) 902 F.2d 1417, 1423.) In Mayor v. Educational Equality League (1974) 415 U.S. 605 [94 S.Ct. 1323, 39 L.Ed.2d 630], the United States Supreme Court found of “no significance” statistics based on a group of 13, “[i]n large part. . . because the number of positions . . . was too small to provide a reliable sample.” {Id. at p. 611 [94 S.Ct. at p. 1329]; see also id. at p. 612 [94 S.Ct. at p. 1329].) A change of only one person “meant an 8% change in racial composition.” {Id. at p. 611 [94 S.Ct. at p. 1329].) Here, the numbers are even smaller. A single change—retaining the 50 year old and laying off the 34 year old—would not have affected Bechtel’s actions towards Guz in the slightest but would have made the statistics show action favoring older persons. Many cases have found no statistical significance with groups larger than six. (E.g., Vaughan v. MetraHealth Companies, Inc., supra, 145 F.3d at p. 203 [“a sample of seven employees ... is too small for reliable analysis”]; Brocklehurst v. PPG Industries, Inc., supra, 123 F.3d at p. 897 [group of 14 is too small]; Fallis v. Kerr-McGee Corp., supra, 944 F.2d at p. 746 [group of nine “is too small to provide reliable statistical results”]; Simpson v. Midland-Ross Corp., supra, 823 F.2d at p. 943 & fn. 7, and cases cited [reliance on a sample of 17 is “suspect”]; Sengupta v. Morrison-Knudsen Co., Inc. (9th Cir. 1986) 804 F.2d 1072, 1076 [group of 28 is too small].)

Second, Bechtel did not systematically replace older persons with substantially younger ones. Of the six in Guz’s group, all but one were in their 40’s (or 50); one was 34. The replacement of a worker with another “substantially younger than the plaintiff’ {O’Connor v. Consolidated Coin Caterers Corp., supra, 517 U.S. at p. 313 [116 S.Ct. at p. 1310]) might look suspicious, but not these actions. Hartley v. Wisconsin Bell, Inc. (7th Cir. 1997) 124 F.3d 887 considered the “question: how much older than a replacement does a plaintiff have to be in order to pass O’Connor’s test?” {Id. at p. 892.) “While we suspect that the answer depends to some extent on the circumstances in a case, we consider a ten-year difference in ages (between the plaintiff and her replacement) to be presumptively ‘substantial’ under O’Connor. In cases where the disparity is less, the plaintiff may still present a triable claim if she directs the court to evidence that her employer considered her age to be significant. In that instance, the issue of age disparity would be less relevant. ...[![]... Ten years is a reasonable threshold establishing a ‘significant’ and ‘substantial’ gap, which is what O’Connor demands. Yet the line we draw is not so bright as to exclude cases where the gap is smaller but evidence nevertheless reveals the employer’s decision to be motivated by the plaintiff’s age.” {Id. at p. 893.)

*377This assessment seems reasonable. In a given case, the plaintiff might be able to show that an age difference of less than 10 years was significant to the employer. For example, if some important contractual right vested at the age of 50, then replacing a 49 year old with someone younger, even if less than 10 years younger, might be replacing a person with someone substantially younger. But no such evidence exists here. Absent any evidence that Bechtel considered the age differences of persons in their 40’s to be significant, I would find them insignificant. Without more, choosing among various persons in their 40’s gives no cause to suspect age discrimination. Specifically, replacing a 49 year old with a 41 year old is not, by itself, replacing a person with someone substantially younger. Only one person in the group in this case—the 34 year old—was substantially younger than Guz.

Third, the members of the group of six had different qualifications and performed different duties. “[A] plaintiff’s statistical evidence must focus on eliminating nondiscriminatory explanations for the disparate treatment by showing disparate treatment between comparable individuals.” (Fallis v. Kerr-McGee Corp., supra, 944 F.2d at p. 746.) “[T]here must be evidence that [those over 40] had positions and performance ratings that were comparable to [those under 40] who were retained.” (Id. at p. 747.) Here, the group was quite disparate. One, for example, was a secretary, who had duties not remotely similar to Guz’s.

Fourth, any slight weight we may give to plaintiffs statistics is negated by the fact that Guz’s own duties were largely assumed by someone older than he. (Maj. opn., ante, at p. 366.) This fact, even if not itself dispositive, eliminates any suspicious inference that may be drawn from Bechtel’s retaining the two youngest of Guz’s group. “[T]he fact that [the employer] replaced [plaintiff] with [an] even older [employee] contradicts [plaintiff’s] claims of discriminatory animus.” (Brocklehurst v. PPG Industries, Inc., supra, 123 F.3d at p. 897.)

Guz also argues that Bechtel did not follow its own fair layoff procedures, and that this circumstance supports his discrimination claim. The argument is factually dubious but even if correct would fail to suggest age discrimination. A mere failure to follow formal internal policies does not support a discrimination claim. In Vaughan, the employer had an “elaborate Downsizing Policy . . . memorialized in a 144-page Downsizing Manual.” (Vaughan v. MetraHealth Companies, Inc., supra, 145 F.3d at p. 200.) “. . . Cooper, who made the decision to discharge [the plaintiff], admitted he was not familiar with the Downsizing Manual, [and] had never read it. . . .” (Ibid.) Thus, the “district court noted . . . various differences between the Downsizing Manual and Cooper’s actual decision-making process.” (Id. at p. 201.) *378But this showing was not sufficient to support the discrimination claim. “The plaintiff must have developed some evidence on which a juror could reasonably base a finding that discrimination motivated the challenged employment action.” (Id. at p. 202.) The employer’s failure “to follow its own Manual . . . does not even hint that the real motive was age discrimination. ‘The mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the employer was motivated by illegal discriminatory intent.’ Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995). Federal courts cannot ensure that business decisions are always informed or even methodical.” (Id. at p. 203; see also Rose v. Wells Fargo & Co., supra, 902 F.2d at p. 1422; Moore v. Eli Lilly & Co. (5th Cir. 1993) 990 F.2d 812, 819.)

Guz’s inability to present any credible evidence to establish his age discrimination claim supports the superior court’s grant of summary judgment in Bechtel’s favor.

Brown, J., concurred.

KENNARD, J., Concurring and Dissenting.

California statutory law prohibits employers from discriminating against workers over the age of 40. In this case, an employee sued his employer after it eliminated his job in the wake of a corporate reorganization and then passed him over in favor of younger workers when other positions became available. At the time of his discharge, the employee had worked for his employer 22 years, and he was 49 years old.

The employee’s various causes of action included one for age discrimination, on which the trial court granted summary judgment for the employer. The Court of Appeal disagreed. Unlike the majority here, I would affirm the judgment of the Court of Appeal. I agree, however, with the majority’s resolution of the employee’s other causes of action.

I

This matter comes to us after the trial court granted defendant employer’s motion for summary judgment. Under California law, a moving party is entitled to summary judgment only when no “triable issue of material fact” remains for trial. (Code Civ. Proc., § 437c, subd. (o)(l) & (2).) In reviewing an order granting or denying summary judgment, “we examine the facts presented to the trial court and determine their effect as a matter of law.” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464 [63 Cal.Rptr.2d 291, 936 P.2d 70].)

*379In 1993, plaintiff John Guz worked for Bechtel National, Inc. (BNI), a wholly owned subsidiary of Bechtel Corporation (Bechtel). Guz was one of six employees in BNI’s management information unit (BNI-MI); he was a financial reports manager, making $71,280 a year. That year, during a phase of corporate reorganization, Bechtel eliminated BNI-MI and transferred its functions to Bechtel’s San Francisco Regional Office Management Information Group (SFRO-MI). Reassigned to SFRO-MI as part of this transfer were BNI-MI’s two youngest members, both of whom held lower grade positions and earned lower salaries than Guz. Shortly thereafter, SFRO-MI created three new positions, two of which it filled with workers younger than Guz. The younger workers were between seven and 15 years younger than Guz. Even though Guz was willing to take a grade cut and pay cut, Bechtel did not consider him for the new SFRO-MI positions, and it discharged him.

Guz’s lawsuit against Bechtel alleged various causes of action, including one for age discrimination in violation of California’s Fair Employment and Housing Act (FEHA). (Gov. Code, § 12941, subd. (a).)1 Bechtel moved for summary judgment, asserting, as relevant here, these reasons for the termination: (1) It eliminated BNI-MI, where Guz was employed, because of a “downturn in workload” and to consolidate costs; (2) Guz’s tasks were then assumed by existing workers at SFRO-MI; and (3) the younger employees chosen to fill the SFRO-MI positions were better qualified for those particular positions than Guz.

Guz disputed these reasons as “pretextual.” He presented evidence that (1) he was qualified for each of the positions filled at SFRO-MI; (2) in eliminating BNI-MI and terminating him, Bechtel failed to comply with its internal Reduction-in-Force Guidelines (which required that all affected employees be ranked by job skills and functions), thereby depriving him of a fair, objective, and consistent evaluation in comparison with others; and (3) Bechtel’s asserted reasons for eliminating BNI-MI—cost savings and a reduction in workload—were demonstrably false because SFRO-MI had to add a total of five positions to cover the work transferred from the sixmehiber BNI-MI unit.

Ruling that Guz had failed to show that Bechtel’s proffered reasons were a pretext for age discrimination, the trial court granted summary judgment. The Court of Appeal reversed, concluding that material issues of fact on Guz’s FEHA claim were in dispute and needed to be resolved by a full trial.

II

As relevant here, the FEHA prohibits an employer from discharging “any individual over age 40 on the ground of age.” (§ 12941, subd. (a), italics *380added.) “[T]he practice of age discrimination, like other forms of invidious discrimination, ‘foments domestic strife and unrest’ in the workplace (Gov. Code, § 12920), making for a more stressful and ultimately less productive work environment.” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 895 [66 Cal.Rptr.2d 888, 941 P.2d 1157].) Thus, the FEHA’s express policy condemning discrimination against older workers benefits the public at large. (Ibid.)

Here, plaintiff’s case is based on a theory of “disparate treatment,” meaning that because of his age (49 years at the time of discharge), Bechtel treated him less favorably than it did younger workers. (See Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730 [35 Cal.Rptr.2d 181]; Rose v. Wells Fargo & Co. (9th Cir. 1990) 902 F.2d 1417, 1421.) “The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” (Reeves v. Sanderson (2000) 530 U.S. 133, 153 [120 S.Ct. 2097, 2111, 147 L.Ed. 105] (Reeves).)

In disparate treatment cases, California courts apply the test that the United States Supreme Court articulated in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-803 [93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668] (McDonnell Douglas) to assess such cases when brought under federal law. (Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1730.) This test governs the allocation of the burden of production and the order for the presentation of proof at the trial of a discrimination case. (Reeves, supra, 530 U.S. at pp. 142-143 [120 S.Ct. at p. 2106]; St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 506 [113 S.Ct. 2742, 2746-2747, 125 L.Ed.2d 407] (Hicks).)

Under the McDonnell Douglas test, a plaintiff employee claiming discrimination has the initial burden to establish “by a preponderance of the evidence, a ‘prima facie’ case of . . . discrimination.” (Hicks, supra, 509 U.S. at p. 506 [113 S.Ct. at p. 2747]; Texas Dept, of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-253 [101 S.Ct. 1089, 1093-1094, 67 L.Ed.2d 207] (Burdine).) When, as here, the alleged age discrimination resulting in the employee’s discharge occurs during an employer’s restructuring of its work force, the employee can make a prima facie case based on evidence that the employee (1) was age 40 or older; (2) satisfied the employer’s legitimate expectations of job performance; and (3) the employer treated younger workers more favorably (for instance, by offering them replacement positions denied to the discharged employee). (See Collier v. Budd Co. (7th Cir. 1995) 66 F.3d 886, 889-890; Greene v. Safeway Stores, Inc. (10th Cir. 1996) 98 F.3d 554, 560; see also Jameson v. Arrow Co. (11th *381Cir. 1996) 75 F.3d 1528, 1533.) With respect to the third factor (more favorable treatment of younger workers), a number of federal appellate courts have pointed out that a discharged employee’s failure to prove replacement by a younger worker does not necessarily defeat a claim of age discrimination if the termination is the result of a general reduction in work force. (Rose v. Wells Fargo & Co., supra, 902 F.2d at p. 1421; Armbruster v. Unisys Corp. (3d Cir. 1994) 32 F.3d 768, 777; Freeman v. Package Machinery Co. (1st Cir. 1988) 865 F.2d 1331, 1335, fn. 2. [replacement by a younger person not an element of prima facie age discrimination case].)

Once the discharged employee has established a prima facie case of discrimination, there is a presumption of unlawful discrimination by the employer. (Hicks, supra, 509 U.S. 502, 506 [113 S.Ct. 2742, 2746-2747]; Burdine, supra, 450 U.S. at p. 254 [101 S.Ct. at p. 1094].) As the high court has explained: “A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. [Citation.] And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely -than not the employer, whom we generally assume acts with some reason, based his decision on an impermissible consideration such as race [or age].” (Furnco Construction Corp. v. Waters (1978) 438 U.S. 567, 577 [98 S.Ct. 2943, 2949-2950, 57 L.Ed.2d 957], italics omitted.)

If the trier of fact finds the discharged employee’s prima facie case persuasive, and the employer remains silent in the face of the just-described presumption of unlawful discrimination, the trial court “must enter judgment for the plaintiff because no issue of fact remains in the case.” (Burdine, supra, 450 U.S. at p. 254 [101 S.Ct. at p. 1094].) The employer is, of course, free to rebut the presumption by presenting evidence of a legitimate, nondiscriminatory reason for the termination. (Hicks, supra, 509 U.S. at p. 507 [113 S.Ct. at p. 2747].)

An employer’s desire to reduce expenses by eliminating some employee positions is not itself a legitimate, nondiscriminatory reason for the discharge of older workers. Chief Judge Richard Posner of the federal Court of Appeals for the Seventh Circuit explained this in a case alleging disability discrimination during corporate downsizing. “Even if the employer has a compelling reason wholly unrelated to the disabilities of any of its employees to reduce the size of its work force, this does not entitle it to use the *382occasion as a convenient opportunity to get rid of its disabled workers. [Citations.] This point is most easily seen by thinking of a [reduction in work force] as a kind of hiring: the employer has decided to reduce its work force from, say, 100 to 80 employees; this means it has 80 slots to fill and in filling them must choose among 100 ‘applicants.’ The law forbids the employer to disqualify the disabled applicants on the basis of their disability.” (.Matthews v. Commonwealth Edison Co. (7th Cir. 1997) 128 F.3d 1194, 1195.) This reasoning applies with equal force to a case alleging age discrimination.

Nor is it sufficient for the employer to show that the discharged older workers earned higher salaries than the younger workers who were retained. Although a Court of Appeal reached a contrary conclusion in Marks v. Loral Corp. (1997) 57 Cal.App.4th 30 [68 Cal.Rptr.2d 1], and this court denied review (Justice Mosk and I voting to grant), the Legislature has since expressly abrogated that decision by declaring “that the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group, and . . . that the disparate impact theory of proof may be used in claims of age discrimination.” (§ 12941.1, enacted by Stats. 1999, ch. 222, § 2.)2

When, under the McDonnell Douglas burden-allocation rules, the employer responding to a discharged employee’s prima facie case of age discrimination offers legitimate, nondiscriminatory reasons for the discharge, what countervailing evidence must the employee present to sustain a judgment after trial? This was the question before the United States Supreme Court in Reeves, supra, 530 U.S. 133 [120 S.Ct. 2097]. There, the 57-year-old plaintiff had worked for a plumbing manufacturer for 40 years when he was fired. The employees who later filled the plaintiff’s former position were all in their 30’s. At trial, the employer disputed that age was the motivating factor for the discharge, asserting that it terminated the plaintiff *383because he had not kept accurate records of employee attendance. The jury awarded damages to the plaintiff, but the federal Court of Appeals reversed for insufficiency of evidence. The United States Supreme Court disagreed. Describing the issue as “the kind and amount of evidence necessary to sustain a jury’s verdict that an employer unlawfully discriminated on the basis of age” (Reeves, supra, 530 U.S. at p. 137 [120 S.Ct. at p. 2103]), the high court held that the circuit court had “misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence” {id. at p. 146 [120 S.Ct. at p. 2108]). That burden could be satisfied by evidence of the “plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false.” {Id. at p. 148 [120 S.Ct. at p. 2109].) From such evidence, a trier of fact could reasonably conclude “that the employer unlawfully discriminated.” {Ibid.)

Ill

Consideration of the evidence here in light of the legal framework discussed, ante, leads to these conclusions:

Guz’s evidence presented in opposition to Bechtel’s summary judgment motion was sufficient to establish a prima facie case of age discrimination under the McDonnell Douglas test: (1) He was over 40 years of age when terminated; (2) his job performance exceeded Bechtel’s legitimate expectations (he was promoted six times, and was given 17 merit raises, and he received a Silver Performance Plus Award for saving the company $1.7 million; his 1991-1992 performance review described him as a “strong performer in his group”; and in his 22 years at Bechtel, he was never told his skills were deficient); and (3) Bechtel treated younger workers more favorably than older workers by transferring, from the disbanded BNI-MI unit (where Guz was employed) to SFRO-MI and selecting for two of the three new SFRO-MI positions, workers between seven and 15 years younger than Guz; and by retaining the two youngest of the six workers at BNI-MI, while terminating the two oldest. This evidence, if presented at trial and accepted by the fact finder would have given rise to a presumption of age discrimination that, if unrebutted by Bechtel, would require entry of judgment for plaintiff. {Hicks, supra, 509 U.S. at p. 507 [113 S.Ct. at p. 2747].)3

Bechtel did, however, present rebutting evidence in support of its motion for summary judgment. According to Bechtel, a “downturn in workload” and *384a desire to save costs prompted its elimination of the BNI-MI unit, where Guz had worked. And it chose the younger workers for the SFRO-MI positions because they were the most qualified for those positions.

Notwithstanding Bechtel’s rebuttal evidence, Guz could still prevail at trial under the high court’s decision in Reeves by presenting evidence of a prima facie case of age discrimination plus sufficient additional evidence from which a reasonable fact finder could reject “the employer’s asserted justification [as] false.” (Reeves, supra, 530 U.S. at p. 148 [120 S.Ct. at p. 2109].) As Justice Ginsburg’s concurrence in Reeves explained, “two categories” of evidence are needed' to support a jury’s verdict in a disparate treatment case based on circumstantial evidence of unlawful discrimination: “[F]irst, evidence establishing a ‘prima facie case,’ . . . ; and second, evidence from which a rational factfinder could conclude that the employer’s proffered explanation for its actions was false.” (Id. at p. 154 [120 S.Ct. at p. 2112] (cone. opn. of Ginsburg, J.).) Here, in opposing Bechtel’s motion for summary judgment, Guz presented evidence in both categories. As discussed earlier, he offered evidence comprising a prima facie case of age discrimination. In addition to the evidence of the prima facie case, he presented this evidence: (1) He was qualified for the SFRO-MI positions filled by other workers; (2) Bechtel never considered him for any of the new positions at SFRO-MI; (3) Bechtel did not comply with its own downsizing policy of ranking employees based on skills and functions; and (4) Bechtel’s stated reasons for eliminating BNI-MI—cost reduction and downturn in workload—were demonstrably false, as noted on page 379, ante. From this additional evidence, a trier of fact could reasonably reject as false Bechtel’s asserted business justifications for Guz’s discharge. As Justice Ginsburg’s concurrence in Reeves noted, “evidence suggesting that a defendant accused of illegal discrimination has chosen to give a false explanation for its actions gives rise to a rational inference that the defendant could be masking its actual, illegal motivation.” (Ibid.) Thus, under the high court’s standard in Reeves, Guz’s evidence here would be sufficient for an appellate court to sustain “a jury’s verdict that an employer unlawfully discriminated on the basis of age.” (Id. at p. 137 [120 S.Ct. at p. 2103].)

Here, however, we are concerned not with the sufficiency of evidence to sustain a jury verdict of age discrimination, but only with whether Guz’s evidence raises “a triable issue of material fact” to be resolved at trial. (Code Civ. Proc., § 437c, subd. (o)(2).) Because, as I have explained, Guz’s evidence was sufficient under Reeves not only for a jury to reject Bechtel’s proffered reasons for the discharge but also for an appellate court to uphold an age discrimination verdict, that evidence squarely presented “[t]he ultimate question” in any disparate treatment case, namely, “whether the plaintiff was the victim of intentional discrimination.” (Reeves, supra, 530 U.S. at *385p. 153 [120 S.Ct. at p. 2111].) That issue was in this case a material issue of fact in dispute. Therefore, the trial court erred when, in granting summary judgment for Bechtel, it precluded Guz from having the merits of this material issue of fact resolved at a trial.

The majority does not at all acknowledge that Guz’s evidence was sufficient to establish a prima facie case of age discrimination.4 Instead, it looks to a statement by the high court in Reeves that an employer is entitled to judgment as a matter of law when “ ‘no rational fact finder could conclude that the action was discriminatory.’ ” (Maj. opn., ante, at p. 362, italics omitted.) According to the majority, that is the case here. I disagree.

In Reeves, the high court explained that notwithstanding evidence comprising a prima facie case of discrimination and sufficient additional evidence for a jury to reject an employer’s proffered explanation, the employer would be entitled to a judgment as a matter of law if, for instance, “the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.” (Reeves, supra, 530 U.S. at p. 148 [120 S.Ct. at p. 2109], italics added.) But here the record does not conclusively reveal Bechtel’s true reason for Guz’s discharge, and there is insufficient independent evidence that the reason was other than his age. Therefore, contrary to the majority’s assertion, this case falls outside the Reeves exception.

Conclusion

In a recent decision, I explained the reason for FEHA’s prohibition against age discrimination in employment: “Aging is a highly complex and variable process. Chronological age alone is not a reliable measure of any individual’s vitality or ability, and many individuals remain robust and productive well past the normal retirement age. Nevertheless, some employers have discriminated against highly qualified older workers solely because of their age, either by not hiring them or by replacing them with younger persons.” (Stevenson v. Superior Court, supra, 16 Cal.4th at p. 909.)

*386Seeking ever greater efficiency to meet the demands of open market competition, many corporations engage in frequent internal reorganization. As some departments or working groups are reduced or eliminated and others are expanded or created, many employees’ jobs are placed at risk in a corporate equivalent of the old game of musical chairs. Because the corporate employer controls the seating assignments, corporate officers who wish to eliminate older workers may use the complexities of the restructuring process to conceal their illegal discriminatory intent. Here, Guz has alleged that he was the victim of exactly this sort of age discrimination by his employer, Bechtel, contrary to the public policy and the law of this state.

Guz’s lawsuit against Bechtel is now at the summary judgment stage, where the question to be decided is whether the evidence submitted by Guz and Bechtel shows there is an issue of material fact in dispute that needs to be resolved by a full trial in open court. Unlike the majority, I conclude that the evidence does show a triable issue of fact, and that plaintiff deserves a trial on the merits to determine whether he lost his job for legitimate business reasons or because of illegal age discrimination. Because the majority denies plaintiff the opportunity to prove his case at trial, I dissent.

The opinion of the Court was delivered by

GARIBALDI, J.

Plaintiff brings this case against his employer for breach of oral contract of employment. Specifically, plaintiff claims that defendant’s oral promises to him, on which he relied, contractually obligated the employer to terminate his employment only for cause. After defendant terminated plaintiff’s employment, plaintiff sued, alleging breach of contract, fraud, tortious interference, outrage, and defamation. The trial court granted summary judgment for defendant on all five counts, and plaintiff appealed. The Appellate Division affirmed the dismissal of the defamation and outrage counts but reversed the dismissal of the breach of contract, fraud, and tortious interference counts. 218 N.J.Super. 111 (1987). We granted certification. 108 N.J. 667 (1987).

*280I

In viewing the record on the motion for summary judgment, we give the plaintiff the benefit of all reasonable inferences that may be drawn in his favor. Savarese v. Pyrene Mfg. Co., 9 N.J. 595, 599 (1952). Defendant, Sanyo Business Systems Corp., a Delaware corporation, hired plaintiff, Arthur Shebar, as National Sales Manager for its Computer Division on December 14, 1981. Sanyo’s parent is a Japanese firm. The principal place of business for Sanyo’s U.S. operations is in New Jersey.

When defendant initially hired plaintiff, the parties did not execute an employment contract. The terms of plaintiff’s employment were outlined in a Sanyo memo to him that stated his annual salary was to be $35,000, with an additional amount of $10,000 as a bonus. Plaintiff continued to work for Sanyo for several years.

The parties disagree over plaintiff’s job performance in the years following his employment. Plaintiff asserts that his performance was good and that he received regular salary increases. He claims Sanyo repeatedly commended him for his efforts and accomplishments. Plaintiff states that in June 1984, Dr. Nakahara, defendant’s Director of Factory Operations in Guma, Japan, congratulated him for a large sale of Sanyo products to the Internal Revenue Service. Further, plaintiff asserts that on numerous occasions, Mr. Yamazaki, Sanyo’s President, and Mr. Yamashita, Sanyo’s Executive Vice President, congratulated him on his division’s sales record and his own specific accomplishments. In early 1984, defendant apparently won some sort of industry award, and plaintiff claims he was principally responsible for that award. Plaintiff insists that throughout his tenure as sales manager, he regularly received positive reviews, increased responsibilities, and increased remuneration.

Defendant on the other hand asserts that plaintiff’s performance was unsatisfactory during 1982, 1983, and 1984. According to Sanyo, plaintiff’s superiors informed him on several *281occasions by memoranda of his unsatisfactory performance in repeatedly failing to meet sales and profit quotas established by himself and by defendant. According to plaintiff, his Sanyo superiors insisted the critical memos he received were not meant to chastise him but rather were intended to push him and the division he headed to their “utmost.” Additionally, he maintains that Sanyo created his sales quotas, and that Sanyo did so without his input and “without regard to the company’s ability to effect sales.” Shebar claims that he was told by his superiors that the “Japanese” procedure was to establish sales forecasts and objectives “which were not only extraordinarily high but, frankly, incapable of fulfillment.” In his certification below, plaintiff asserted that the

theory behind this practice, it was explained to me, was to push managers and their subordinate sales personnel to strive to achieve sales objectives which they otherwise would never even bother to attempt to attain. I was told frequently that this admittedly unrealistic practice was a standard ‘Japanese’ business practice which was accepted by defendant as good business.

Plaintiff concluded by September 1984 that Sanyo’s business practices were not sound practices for use in this country. According to plaintiff, he was particularly dismayed by Sanyo’s practice of “unilaterally establishing unrealistically] high sales goals.” Plaintiff also felt that Sanyo primarily promoted Japanese nationals to its senior management positions and thus the company would by-pass him in filling senior positions in its American operations in the future. At around this same time, plaintiff communicated with an executive search firm to discuss other job opportunities. The firm arranged an interview for plaintiff at the Sony Corporation.

The officers of Sony to whom plaintiff spoke assured him that Sony’s sales practices “were strictly American.” Plaintiff knew that Sony had many American vice presidents. Sony offered plaintiff a position as national sales manager with an express assurance that he would become a vice president within a reasonable period of time.

*282The critical events allegedly occurred on October 1, 1984, when plaintiff accepted the Sony offer and tendered his written resignation to Sanyo. According to Shebar’s certification, Sanyo’s president, Mr. Yamazaki, called him into his office after he received plaintiff’s letter of resignation. When plaintiff went into Mr. Yamazaki’s office, Mr. Yamashita, executive vice president of Sanyo, was also present. According to plaintiff, Mr. Yamashita told him that he was personally insulted by his resignation, that his performance was exceptionally good, that plaintiff should have brought any problems or dissatisfaction to his attention, and that the company did not want plaintiff to resign, but rather wanted to eliminate any problems that existed. Yamazaki apparently agreed with Yamashita. Yamazaki held the resignation letter, ripped it to shreds, and said “I will not accept your resignation. We will solve your problems.”

Plaintiff claims that Yamazaki and Yamashita expressly stated to him that Sanyo does not fire its managers. They told him, plaintiff contends, that he had a job for the rest of his life, and that Sanyo had never fired, and never intended to fire, a corporate employee whose rank was manager or above. Plaintiff acknowledges that they did not discuss money at this meeting, but maintains that they assured him that he would receive a substantial raise in March 1985.

As a result of this meeting and in reliance on the assurances made to him there, plaintiff revoked his acceptance of Sony’s offer. Thereafter, he informed Mr. Yamashita that he had rejected the Sony offer. According to plaintiff, Yamashita congratulated him on a wise decision, and again assured him that he was “married” to Sanyo and no divorce was allowed.

A few days later, plaintiff communicated with the executive search firm that had arranged the Sony interview and explained why he rejected Sony’s offer. Plaintiff’s contact at the firm, Mr. Stephen Mersand, was very surprised by plaintiff’s account of the assurances that had been made to him by his Sanyo *283superiors. Mersand stated he was aware that Sanyo was actively seeking to replace him.

Subsequently, plaintiff confronted Yamashita with the information he received from Mersand. Yamashita, according to plaintiff, responded that Mersand was lying, that Sanyo was not seeking to replace him, and that Mersand just wanted to earn his fee by placing Shebar with another firm.

Some four months later, on February 5, 1985, as Shebar was preparing to leave for Minneapolis on business, Mr. Tomochika, Sanyo’s new president, called Shebar into his office and fired him. He said “you will leave the company. You are fired. Clean out your desk. Leave now.” Saying nothing more, Tomochika handed Shebar an envelope that contained a memo and four checks. The memo, dated February 6, 1985, read as follows:

In accordance with the termination of your employment with Sanyo, effective February 6, 1985, I will offer you the following termination pay:

1. A partial monthly pay for February 1985 (February 1-6): $691.67 gross

2. Additional two monthly pays: $6,916.66 gross

or the sum of $7,608.33 (gross) subject to income tax deductions. ADP will issue the checks in the net amount on Wednesday February 6, 1985.

I thank you for your past service to Sanyo and wish you good luck.

Plaintiff claims he was never asked to accept or reject the checks or ever told that acceptance of the checks constituted a waiver or agreement. Several days after he received the checks, plaintiff deposited all of them in his checking account.

Plaintiff commenced this lawsuit against Sanyo on July 8, 1985. The trial court granted summary judgment to defendant on all counts. The trial court also found plaintiff had in any event waived such claims by accepting the offered severance pay.

The Appellate Division affirmed the dismissal of plaintiff's defamation and outrage claims, but reversed the dismissal of plaintiff’s breach of contract, fraud, and tortious interference claims. The Appellate Division also reversed the trial court’s waiver finding.

*284II

The primary issue in this appeal is plaintiffs breach of contract claim. The trial court construed Sanyo’s oral promises of lifetime employment as unenforceable “friendly assurances.” The court, relying on Savarese v. Pyrene Manufacturing Co., supra, 9 N.J. 595, found that in the absence of an enforceable promise to terminate plaintiff’s employment only for cause, he remained an at-will employee, whose employment could be terminated without cause. The Appellate Division determined that the trial court should have applied Woolley v. Hoffmann-LaRoche, Inc., 99 N.J. 284 (1985), and permitted plaintiff to prove that Sanyo had a “definitive, established, company-wide employer policy, however expressed.” 218 N.J.Super. at 120.

In considering plaintiff’s breach of contract claim, it is important that we understand the nature of his claim. Prior to October 1984, plaintiff had been employed by defendant for approximately three years. Plaintiff essentially acknowledges that during those years he was an at-will employee whose employment could be terminated without cause. Furthermore, plaintiff does not assert that Sanyo communicated a company-wide termination policy at any time during the years preceding his termination. Finally, the record does not reveal that defendant had established and disseminated a definitive company-wide termination policy, or that plaintiff or any other employee had ever relied on such a policy.

Plaintiff’s claim instead turns on the unique, oral promise defendant made specifically to him, in a private conference on October 1, 1984, and his reliance thereon. The alleged promise was that if plaintiff revoked his acceptance of the Sony job offer and stayed with Sanyo, he would have a job for life or at least he could not be fired without cause. It is this individualized contract that plaintiff claims constitutes an enforceable obligation on the part of defendant to terminate plaintiff’s employment only for reasonable cause.

*285III

Historically, under common law, employers have been able to terminate the employment of at-will employees for cause or for no cause at all, in the absence of an employment contract providing otherwise. In Savarese v. Pyrene Manufacturing Co., supra, 9 N.J. 595, this Court set forth the generally prevailing rule on at-will employment:

“[I]n the absence of additional express or implied stipulations as to duration, a contract for permanent employment, for life employment or for other terms purporting permanent employment, where the employee furnishes no consideration additional to the services incident to the employment, amounts to an indefinite general hiring terminable at the will of either party, and therefore, a discharge without cause does not constitute a breach of such contract justifying recovery of money damages therefor.” [Id. at 600-01 (quoting Eilen v. Tappin’s, Inc., 16 N.J.Super. 53, 55 (Law Div.1951)).]

In Savarese, an employee’s supervisors induced him to play on the company softball team. Plaintiff-employee hesitated insisting that he was too old to play on the team. His superior reportedly answered, “ ‘If you get hurt I will take care of you. You will have a foreman’s job the rest of your life.’ ” Id. at 597. Plaintiff alleges that the supervisor specified the job as “ ‘the one I had, the one I earned.’ ” Ibid. This agreement was never reduced to writing. Id. at 598. While playing baseball, the plaintiff sustained leg injuries.

Despite his injury, Savarese returned to the company and continued to work there for twenty-one years, at which point the company terminated his employment. Afterwards, Savarese sued, contending that the company breached his contract of lifetime employment and that he was entitled to money damages.

In Savarese, we specifically observed that because of the unusual nature of a contract for lifetime employment, “ftjhe responsibilities assumed and the obligations imposed will be neither created nor spelled out by mere inference when they are not clearly and unequivocally expressed in the contract itself.” 9 N.J. at 603. The plaintiff in Savarese could not demonstrate the requisite elements of an enforceable lifetime contract. The *286only possible foundation for a contract was the vice president’s statement that “You will have a foreman’s job for the rest of your life.” These words, according to the Court, were “vague and uncertain” and did not “comply with the precision and clarity required by the law.” Ibid. “They partake more of the nature of a ‘friendly assurance of employment’ * * Ibid. Thus, we held that there was no enforceable contract of lifetime employment between the parties. See also Bird v. J.L. Prescott Co., 89 N.J.L. 591, 592 (E. & A. 1916) (“The paper as well as the conversation on which the plaintiff relies, amount to no more than a friendly assurance of employment and are not sufficiently definite to make an enforceable [lifetime] contract.”).

In Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), and Woolley v. Hoffmann-LaRoche, Inc., supra, 99 N.J. 284, we limited and modified the rules of at-will employment. See also Comment “Protecting Employees At-Will Against Wrongful Discharge: The Public Policy Exception,” 96 Harv.L.Rev. 1931, 1935 (1976) (same); Comment, “Limiting The Employment-at-Will Rule: Enforcing Policy Manual Promises Through Unilateral Contract Analysis,” 16 Seton Hall L.Rev. 465, 471 (1986) (authorities have moved toward abrogating the at-will doctrine). In Pierce, we adopted a general public policy exception and recognized that an employer may not fire an at-will employee when the discharge is for a reason that is contrary to a clear mandate of public policy. 84 N.J. at 72. In Woolley, we held that absent a clear and prominent disclaimer, an implied promise contained in an employment manual that an employee will be fired only for cause may be enforceable even when the employment is for an indefinite term and would otherwise be terminable at will. 99 N.J. at 286.

Savarese addresses an issue entirely different from this issue in Woolley. In Savarese, the issue was whether the employee had a unique, individual contract for lifetime employment, very distinct from an employer’s usual practice. In *287 Woolley, the issue was whether the employer’s usual practice, embodied in representations made in and disseminated through a company manual, established an enforceable, company-wide termination policy. The reason Savarese required that a contract for lifetime employment be demonstrated by unmistakably clear signs of the employer’s intent was that at the time such contracts were deemed “to -be at variance with general usage and sound policy.” Savarese v. Pyrene Mfg. Co., supra, 9 N.J. at 601. This is still so today, given the unlikelihood of an employer promising to protect an employee from any termination of employment, and the difficulty of determining the terms and enforcing such an agreement. Indeed, in Woolley, the Court recognized that such contracts for lifetime employment were extraordinary, and would be enforced only in the face of clear and convincing proof of a precise agreement setting forth all of the terms of the employment relationship, including the duties and responsibilities of both the employer and the employee. Woolley v. Hoffmann-LaRoche, Inc., supra, 99 N.J. at 293. However, a lifetime contract that protects an employee from any termination is distinguishable from a promise to discharge only for cause. The latter protects the employee only from arbitrary termination.

To determine the type of contract the parties intended, a court must closely examine the terms of the contract and the surrounding circumstances. In Shiddell v. Electro Rust-Proofing Corp., 34 N.J.Super. 278, 290 (App.Div.1954), certif. den., 17 N.J. 408 (1955), the court recognized the enforceability of an oral contract of employment. There, plaintiff alleged that when he was given a franchise from defendant in 1939, defendant did not have sufficient funds to pay him a salary or to finance the promotion of the product. Plaintiff alleges that in return for his forgoing a salary and for financing the promotional expenses, defendant told him he would have the franchise for life. He operated the franchise from 1939 to 1954 when defendant attempted to revoke his franchise. The court held that plaintiff had raised sufficient facts regarding the *288existence of an oral agreement that granted plaintiff the franchise for life so as to defeat defendant’s motion for summary judgment. Id. at 291; see also Rogozinski v. Airstream By Angeli, 152 N.J.Super. 133, 143 (Law.Div.1977) (where there was evidence of a considerable sacrifice of important economic advantages, contract contemplating permanent employment was enforceable).

Plaintiff’s claim is that his employer made an oral promise to him to terminate his employment only for cause. Thus, we need not consider whether to extend our decision in Woolley to instances where a company has orally communicated an established company-wide policy to its employees. There is no basis in this record for finding an established company-wide termination policy. What is before us is a special contract with a particular employee, not a general agreement covering all employees. To the extent that plaintiff alleges a contract of life employment, the trial court correctly ruled that this claim was barred by Savarese. To the extent that plaintiff alleges a promise of discharge for cause only, plaintiff’s breach of contract claim should be analyzed by those contractual principles that apply when the claim is one that an oral employment contract exists. See, e.g., Powell v. Fuller Brush Co., 15 F.R.D. 239; Shiddell v. Electro Rust-Proofing Corp., supra, 34 N.J.Super. 278. Consequently, we conclude plaintiff’s claim is neither aided by our decision in Woolley nor precluded by our decision in Savarese.

IV

We .find that plaintiff has presented a material issue of fact concerning whether his employer orally promised to discharge him only for cause. Plaintiff’s superiors specifically represented to him that he would have continued employment at the company. Those representations were obviously intended to induce plaintiff to remain with Sanyo as Sanyo’s computer sales manager and revoke his acceptance of Sony’s employment *289offer. Plaintiff acted in reliance on the alleged promise by forgoing the job opportunity he had secured at Sony. Having made such representations, on which plaintiff relied, Sanyo may not escape the possibility that its representations transformed plaintiffs at-will employment into employment with termination for cause only.

Furthermore, we hold that a factfinder could conclude that plaintiff gave valuable consideration for Sanyo’s promise of continued employment with termination only for cause. The essential requirement of consideration is a bargained-for exchange of promises or performance that may consist of an act, a forbearance, or the creation, modification, or destruction of a legal relation. See Restatement (Second) of Contracts § 71 (1981). If the consideration requirement is met, there is no additional requirement of gain or benefit to the promisor, loss or detriment to the promisee, equivalence in the values exchanged, or mutuality of obligation. Restatement (Second) of Contracts § 79 (1979).

Taking plaintiff’s allegations as true, he agreed to relinquish his new position at Sony in exchange for job security at Sanyo. Sanyo, in turn, agreed to relinquish its right to terminate plaintiff’s employment at will in exchange for the retention of a valued employee. Such bargained-for and exchanged promises furnish ample consideration for an enforceable contract. See Martin v. Federal Life Ins. Co., 109 Ill.App.3d 596, 603-04, 65 Ill.Dec. 143, 149, 440 N.E.2d 998, 1004 (1982); Rowe v. Noren Pattern & Foundry Co., 91 Mich.App. 254, 259-60, 283 N.W.2d 713, 716 (1979); Note, “Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith,” 93 Harv.L.Rev. 1816, 1820 (1980). Here, the factfinder could infer that Shebar gave additional consideration for continued employment by Sanyo. We hold that in this case a jury could find that plaintiff gave valuable additional consideration by forgoing his employment at Sony. We caution that not every relinquishment of a prior job or job offer constitutes additional consideration to support the modification of an at-will *290employment into employment with termination for cause only. The enforceability of each contract will depend on the intent of the parties as established under ordinary principles of contract law.

Additionally, in order to be enforceable the terms of such a contract must be sufficiently clear and capable of judicial interpretation. We find that as a matter of law, the purported contract at issue is not so vague and indefinite that it cannot be enforced. The circumstances surrounding the statements made to plaintiff were such that a factfinder could infer the terms and conditions of an employment contract from plaintiff's existing employment, namely, that Shebar would be employed in the same position at the same salary. Furthermore, the factfinder could infer that Sanyo’s promise not to terminate plaintiff’s employment existed for a reasonable period of time, and such employment was terminable only for cause. See, e.g., West Caldwell v. Caldwell, 26 N.J. 9 (1958).

We do not suggest that any such inferences are required, but merely that the finder of fact could reasonably infer such factual conclusions on this record. Accordingly, since plaintiff has presented a material issue of fact in respect of the existence of such an oral promise and his reliance thereon, the granting of summary judgment was improper. Although we do so on other grounds, we affirm the Appellate Division’s reversal of the summary judgment on the breach of contract count.

V

Defendant also asserts that in any event plaintiff waived all his claims of wrongful termination by accepting the checks proffered to him by his employers. The trial court agreed. The Appellate Division reversed the court’s ruling, holding that the viability of the waiver defense was a matter for the fact-finder and hence inappropriate for summary judgment. We agree.

*291Waiver, under New Jersey law, involves the intentional relinquishment of a known right, and thus it must be shown that the party charged with the waiver knew of his or her legal rights and deliberately intended to relinquish them. See West Jersey Title Co. v. Industrial Trust Co., 27 N.J. 144, 153 (1958); Country Chevrolet, Inc. v. North Brunswick Planning Bd., 190 N.J.Super. 376 (App.Div.1983); see also State v. Morgenstein, 147 N.J.Super. 234, 238 (App.Div.1977) (“it must affirmatively appear that the party charged with waiver knew his rights and deliberately intended to relinquish them”); Allstate v. Howard Savings Inst., 127 N.J.Super. 479, 488 (Ch.Div.1974) (waiver “ ‘implies an election by the party to dispense with something of value, or to forego some advantage which he might at his option have demanded and insisted on’ ”). Questions of waiver, therefore, are usually questions of intent, which are factual determinations that should not be made on a motion for summary judgment. Columbia Sav. & Loan v. Easterlin, 191 N.J.Super. 327 (Ch.Div.1983), aff’d, 198 N.J.Super. 174 (App.Div.1985).

Plaintiff asserts that he did not intend to waive his wrongful termination claims by accepting the checks. The new president of Sanyo, Mr. Tomochika, gave him the checks at the abrupt meeting at which plaintiff was fired. Mr. Tomochika did not explain that plaintiff would be waiving his claims against Sanyo if he accepted the checks. In his certification, plaintiff stated:

I was not asked to respond [to] the unexpected discharge or permitted an opportunity to respond to it. I was never asked to accept, reject or comment on the four checks, which were given to me, and I did not. I was never told either verbally or in writing that acceptance of these checks constituted an agreement or a waiver of my rights or a release of my claims or a termination of Sanyo’s obligations to me. I did not review the memo or the checks until after the brief meeting. I left Mr. Tomochika’s office in shock.

Nothing in the record suggests that either Sanyo or Shebar had any reasonable expectation that Shebar’s acceptance of the checks “unequivocally and decisively expressed his election to forego his legal right to challenge the lawfulness of the termi*292nation.” 218 N.J.Super. at 122. Indeed, Shebar expressly denied that he did, asserting that he was never advised by Sanyo, either orally or in writing, that acceptance of the benefits “ ‘constituted an agreement or a waiver of my rights or a release of my claims or a termination of Sanyo’s obligations to me.’ ” Ibid.

We find, therefore, that a genuine material issue of fact exists concerning whether plaintiff intended to waive his claims against Sanyo by accepting the proffered checks. Hence, the issue was not appropriate for summary judgment.

The Appellate Division also reversed the summary judgment orders in defendant’s favor on the fraud and malicious interference counts. The Appellate Division found genuine factual issues concerning all elements of plaintiff's fraud claim. 218 N.J.Super. at 117. Specifically, the court found that material issues of fact existed regarding every element of a cause of action for fraud: defendant’s false representation, defendant’s knowledge of the falsity, plaintiff’s reasonable reliance, and consequent damage. Ibid. The court also held that material issues of fact existed in connection with the malicious interference claim. Id. at 118. The court found that a factfinder could infer from the facts as thus far presented that Sanyo, by deceit, induced Shebar to revoke his acceptance of the Sony offer while simultaneously seeking to replace him. Ibid. Thus, the Appellate Division concluded, the trial court improperly granted summary judgment to defendant on both the fraud and malicious interference claims.

We affirm these rulings for the reasons given by the Appellate Division.

Accordingly, the judgment of the Appellate Division is affirmed.

For affirmance — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 7.

For reversal — None.

WALLER, Justice:

This is a wrongful discharge action. The trial court granted petitioners summary judgment on all claims. The Court of Appeals reversed and remanded. Conner v. City of Forest Acres, Op. No. 99-UP-433 (S.C. Ct.App. filed August 18, 1999). This Court granted certiorari to review the Court of Appeals’ decision. We affirm in part, and reverse in part.

FACTS

Respondent Evelyn Conner worked for the City of Forest Acres (“the City”) as a police dispatcher. She was hired in July 1984 and was terminated in October 1993. At the time of her termination, J.C. Rowe was the Chief of Police, and Corporal Lewis Langley was her immediate supervisor. Beginning in November 1992, Conner received numerous reprimands for such things as violating the dress code, tardiness, performing poor work, leaving work without permission, and using abusive language. In July 1993, Conner was evaluated as unsatisfactory1 and placed on a 90-day probation. She was reprimanded twice in August 1993, and her October 1993 evaluation showed only slight improvement; therefore, the City terminated her on October 7,1993.

Conner filed a grievance, and at the hearing before the grievance committee, she disputed many of the reprimands.2 The grievance committee voted 2-1 to reinstate Conner. The City Council, however, rejected the grievance committee’s decision and voted to uphold Conner’s termination.

*458During her employment, Conner received two employee handbooks. After receiving each one, Conner signed an acknowledgment form. The 1993 acknowledgment3 stated as follows:

I acknowledge that I have received a copy of the City of Forest Acres Personnel Policy and Procedures Manual (Adopted July 1, 1993). I understand that I am responsible for reading, understanding, and abiding by the contents of these policies and procedures. I further understand that all the policies contained herein are subject to change as the need arises. I further understand that nothing in these policies and procedures creates a contract of employment for any term, that I am an employee at-will and nothing herein limits the City of Forest Acres’s rights for dismissal.

On page 1 of the handbook, entitled INTRODUCTION, there is the following language:

IMPORTANT NOTICE

MANY OF THE POLICIES CONTAINED IN THIS HANDBOOK ARE BASED ON LEGAL PROVISIONS, INTERPRETATIONS OF LAW, AND EMPLOYEE RELATIONS PRINCIPLES, ALL OF WHICH ARE SUBJECT TO CHANGE. FOR THIS REASON, THIS HANDBOOK IS CONSIDERED TO BE A GUIDELINE AND IS SUBJECT TO CHANGE WITH LITTLE NOTICE. THE HANDBOOK DOES NOT CONSTITUTE A CONTRACT OF EMPLOYMENT FOR ANY TERM.

NOTHING IN THIS HANDBOOK SHALL BE CONSTRUED TO CONSTITUTE A CONTRACT. THE CITY HAS THE RIGHT, AT ITS DISCRETION, TO MODIFY THIS HANDBOOK AT ANY TIME. NOTHING HEREIN LIMITS THE CITY’S RIGHTS TO TERMINATE EMPLOYMENT. ALL EMPLOYEES OF THE CITY ARE AT-WILL EMPLOYEES. NO ONE EXCEPT THE CITY ADMINISTRATOR HAS THE AUTHORITY TO WAIVE ANY OF THE PROVISIONS OF THIS HAND*459BOOK, OR MAKE REPRESENTATIONS CONTRARY TO THE PROVISIONS OF THIS HANDBOOK.

This same language appears on the last page of the handbook.

The handbook contained a section entitled “Code of Conduct.” In this section, the handbook states that conduct “reflecting unfavorably upon the reputation of the City, the Department, or the employee will not be tolerated.” Furthermore, this section advises that:

This code of conduct is designed to guide all employees in their relationship with the City.

The following is a non-exclusive list of acts which are considered a violation of the Code of Conduct expected of a City employee, and such conduct will be disciplined in accords with its seriousness, recurrence, and circumstances. Degrees of discipline are given under the section entitled “Discipline” in this manual.

The list enumerates 23 different acts.

The Disciplinary Procedures section of the handbook states that it is the “duty of all employees to comply with, and to assist in carrying into effect the provisions of the personnel policy and procedures.” Additionally, he handbook states the following:

Ordinarily, discipline shall be of an increasingly progressive nature, the step of progression being (1) oral or written reprimand, (2) suspension, and (3) dismissal. Discipline should correspond to the offense and therefore NO REQUIREMENT EXISTS FOR DISCIPLINE TO BE PROGRESSIVE. FIRST VIOLATIONS CAN RESULT IN IMMEDIATE DISMISSAL WITHOUT REPRIMAND OR SUSPENSION.

Furthermore, this section states that violations of the code of conduct “are declared” to be grounds for discipline and that discipline “will be used to enforce the City’s Code of Conduct.” (Emphasis added). Finally, the grievance procedure is outlined in detail. In this section, the handbook states “[i]t is the policy of the City of Forest Acres that all employees shall be treated fairly and consistently in all matters related to their employment.”

*460After Conner was terminated, she brought suit against the City, Rowe and Langley. In her original complaint, she alleged five causes of action; an amended complaint contained nine causes of action. After the case was removed to federal court, and then eventually remanded back to state court, only three causes of action remained: breach of contract, breach of contract accompanied by a fraudulent act, and bad faith discharge.

The trial court granted petitioners’ motions for summary judgment. The Court of Appeals reversed finding that a jury question existed regarding whether the handbook altered Conner’s at-will employment status with the City. The Court of Appeals further found that there was a jury issue as to whether Conner was terminated for cause.

ISSUES

1. Were Rowe and Langley improperly added as respondents to the appeal when the Notice of Appeal only named the City?

2. Did the Court of Appeals err in reversing summary judgment on the breach of contract and bad faith discharge claims?

3. Did the Court of Appeals err in reversing summary judgment on the claim for breach of contract accompanied by a fraudulent act?

DISCUSSION

1. Conner’s Appeal Against Rowe and Langley

Petitioners Rowe and Langley argue that the appeal against them should be dismissed because Conner failed to timely serve them a Notice of Appeal. We agree.

When Conner appealed the trial court’s decision, she filed a Notice of Appeal which named only “City of Forest Acres” as respondent. The Notice is dated January 12, 1998. In a letter dated January 14, 1998, the Court of Appeals advised Conner’s attorney that the caption should read differently, i.e., that the City, Rowe and Langley should be listed as defendants, and the City separately named as respondent.

*461After several extensions were granted to Conner for filing her initial brief, the brief and designation of matter were filed in late May 1998. Thereafter, and in response to the Court of Appeals’ request, Conner filed a “corrected” Notice of Appeal and Proof of Service which now named Rowe and Langley as respondents. Rowe and Langley objected. Conner filed a motion to correct the record which Rowe and Langley opposed. The Court of Appeals granted the motion and accepted the backdated Notice of Appeal.

Rowe and Langley argue that the Court of Appeals erred in allowing this “correction” because this was not a typographical error or mere oversight. Instead, they contend Conner initially pursued an appeal against the City only, and this was confirmed by the subsequent correspondence between Conner and the Court of Appeals.

Service of the notice of intent to appeal is a jurisdictional requirement, and the Court has no authority to extend or expand the time in which the notice of intent to appeal must be served. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985).

Clearly, Rowe and Langley were not served with a Notice of Appeal naming them as respondents within the 30-day time period prescribed by Rule 203(b)(1), SCACR. Nonetheless, citing Moody v. Dickinson, 54 S.C. 526, 32 S.E. 563 (1899), Conner argues that clerical errors on a Notice of Appeal will not defeat the appeal.

In Moody, the defendant filed a Notice of Appeal naming “H.J. Moody” as plaintiff. However, “defendant’s counsel, having soon afterwards discovered the mistake in the title of his notice of appeal, gave notice to plaintiffs’ counsel that he would move ... to amend the notice of appeal by ... adding the names” of the other plaintiffs. Id. at 531, 32 S.E. at 565 (emphasis added). This motion was granted, and plaintiffs appealed. The Court held that there was no error “in allowing the defendant to correct a mere clerical error in the title of his notice of intention to appeal, whereby it is'not even claimed that plaintiffs were misled or in any way prejudiced ----” Id. at 534, 32 S.E. at 566 (emphasis added).

We find the instant case is factually distinguishable from Moody. Here, the facts indicate that the Notice of Appeal did *462not contain a mere clerical error. First, Conner did not “soon” after filing the Notice discover any mistake. Second, the Court of Appeals’ first correspondence with Conner advising her of the way the caption should read (i.e., with only the City named as respondent and Rowe and Langley named as defendants) should have alerted Conner to this “mistake.” It was not until the Court of Appeals invited Conner to “correct” the Notice that Conner took any action. Indeed, the rule of Moody compels us under these facts to find Rowe and Langley were misled into believing they were not part of this appeal by the almost five-month delay in amending the Notice, and therefore, they clearly were prejudiced by the amendment.

Accordingly, we hold that the Court of Appeals erred in granting Conner’s motion to correct the record and accepting the backdated Notice of Appeal. See Meats, swpra. Petitioners Rowe and Langley are dismissed from this action.

2. Breach of Contract and Bad Faith Discharge Claims

The City argues the Court of Appeals erred in reversing summary judgment because Conner failed to produce evidence of the existence of a contract with the City (other than at-will employment) or that the City breached such a contract. We hold the Court of Appeals correctly reversed.

Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. E.g., Koester v. Carolina Rental Center, Inc., 313 S.C. 490, 443 S.E.2d 392 (1994); Rule 56(c), SCRCP. In determining whether any triable issues of fact exist for summary judgment purposes, the evidence and all the inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Id. Moreover, since it is a drastic remedy, summary judgment should be cautiously invoked so that a litigant will not be improperly deprived of trial on disputed factual issues. Baughman v. American Tel. and Tel. Co., 306 S.C. 101, 112, 410 S.E.2d 537, 543 (1991).

The City argues there was no contract created by the handbook because: (1) the procedures in the employee handbook did not alter Conner’s at-will status, (2) the disclaimers *463in the handbook were conspicuous and therefore effective, and (3) Conner signed acknowledgments of her at-will status. Additionally, the City contends that even if the handbook did create a contract, it did not breach the contract because it followed the prescribed procedures.

The general rule is that termination of an at-will employee normally does not give rise to a cause of action for breach of contract. Hudson v. Zenith Engraving Co., 273 S.C. 766, 259 S.E.2d 812 (1979). However, where the at-will status of the employee is altered by the terms of an employee handbook, an employer’s discharge of an employee may give rise to a cause of action for wrongful discharge. Small v. Springs Indus., Inc., 292 S.C. 481, 357 S.E.2d 452 (1987). Because an employee handbook may create a contract, the issue of the existence of an employment contract is proper for a jury when its existence is questioned and the evidence is either conflicting or admits of more than one inference. See id. at 483, 357 S.E.2d at 454; Kumpf v. United Tel. Co. of Carolinas, Inc., 311 S.C. 533, 536, 429 S.E.2d 869, 871 (Ct.App.1993).

The Court in Small stated that “[i]t is patently unjust to allow an employer to couch a handbook, bulletin, or other similar material in mandatory terms and then allow him to ignore these very policies as ‘a gratuitous, nonbinding statement of general policy’ whenever it works to his disadvantage.” Small, 292 S.C. at 485, 357 S.E.2d at 455. The Small Court instructed that if an employer wishes to issue written policies, but intends to continue at-will employment, the employer must insert a conspicuous disclaimer into the handbook. Id. However, in Fleming v. Borden, 316 S.C. 452, 450 S.E.2d 589 (1994), the Court indicated that whether the disclaimer is conspicuous is generally a question for the jury. Id. at 464, 450 S.E.2d at 596 (“ ‘the disclaimer is merely one factor to consider in ascertaining whether the handbook as a whole conveys credible promises that should be enforced.’ ”) (quoting Stephen F. Befort, Employee Handbooks and the Legal Effect of Disclaimers, 13 Indus.Rel.L.J. 326, 375-76 (1991-92)). Specifically, the Fleming Court stated that “[i]n most instances, summary judgment is inappropriate when the handbook contains both a disclaimer and promises.” Id.

*464Relying primarily on Fleming, the Court of Appeals in the instant case found that summary judgment was inappropriate. We agree. While the City argues that its handbook contained disclaimers which were effective as a matter of law and that Conner signed acknowledgments of her at-will status, the fact remains that the handbook outlines numerous procedures concerning progressive discipline, discharge, and subsequent grievance. The language in the handbook is mandatory in nature4 and therefore a genuine issue of material fact exists as to whether Conner’s at-will status was modified by the policies in the handbook. See id. (summary judgment is not appropriate where disclaimers and mandatory promises are both found in handbook).

The City also argues that if a contract exists, then as a matter of law, it did not breach the contract because it followed the procedures outlined in the handbook. The Court of Appeals found that because “Conner disputes the City’s version of the events resulting in her reprimands and subsequent termination,” summary judgment was not proper “on the issue of whether Conner was fired for cause.”

Although this is a closer question, we agree with the Court of Appeals that there is a genuine issue of material fact as to whether Conner was wrongfully terminated. The appropriate test on the issue of breach is as follows: “If the fact finder finds a contract to terminate only for cause, he must determine whether the employer had a reasonable good faith belief that sufficient cause existed for termination.” Prescott v. Farmers Telephone Co-op., Inc., 328 S.C. 379, 393, 491 S.E.2d 698, 705 (Ct.App.1997), rev’d on other grounds, 335 S.C. 330, 516 S.E.2d 923 (1999).5 We note that the fact finder *465must not focus on whether the employee actually committed misconduct; instead, the focus must be on whether the employer reasonably determined it had cause to terminate. Id.; see also Small, 292 S.C. at 483-84, 357 S.E.2d at 454.

Conner’s basic argument is there was no just cause for her termination. Although it appears that the City followed its handbook procedures in effectuating Conner’s termination, the grievance committee voted to reinstate Conner; i.e., the committee found no just cause for Conner’s firing. Subsequently, the City Council overturned the committee’s decision. While the committee and City Council both could have reached their respective conclusions reasonably and in good faith, it nonetheless appears that reasonable minds can differ as to whether just cause existed to support Conner’s termination. Thus, there remains the ultimate question of whether the City had a reasonable good faith belief that sufficient cause existed for termination. Id. This is a question that generally should not be resolved on summary judgment, and therefore, the Court of Appeals correctly reversed the trial court’s grant of summary judgment in favor of the City. See Baughman v. American Tel. and Tel. Co., supra (summary judgment is a drastic remedy which should be cautiously invoked to ensure a litigant will not be improperly deprived of trial on disputed factual issues).

3. Breach of Contract Accompanied by a Fraudulent Act Claim

Finally, the City argues that summary judgment on Conner’s claim for breach of contract accompanied by a fraudulent act was proper because Conner failed to establish fraudulent intent and a fraudulent act. Therefore, the City maintains the Court of Appeals erred in reversing summary judgment. We disagree.

In order to have a claim for breach of contract accompanied by a fraudulent act, the plaintiff must establish three elements: (1) a’breach of contract; (2) fraudulent intent *466relating to the breaching of the contract and not merely to its making; and (3) a fraudulent act accompanying the breach. Harper v. Ethridge, 290 S.C. 112, 348 S.E.2d 374 (Ct.App.1986). The fraudulent act is any act characterized by dishonesty in fact or unfair dealing. Id. “Fraud,” in this sense, “assumes so many hues and forms, that courts are compelled to content themselves with comparatively few general rules for its discovery and defeat, and allow the facts and circumstances peculiar to each case to bear heavily upon the conscience and judgment of the court or jury in determining its presence or absence.” Sullivan v. Calhoun, 117 S.C. 137, 139, 108 S.E. 189, 189 (1921) (citation omitted).

Conner contends that the City and its agents committed numerous fraudulent acts in connection with her termination. Primarily, however, Conner’s claim is that the City fabricated pretextual reasons for Conner’s termination knowing the reasons were false and did not justify termination for cause. Viewing the evidence in the light most favorable to Conner, as we must, we find there is a genuine issue of material fact as to whether the City fraudulently breached its contract. See Harper, supra (the fraudulent act is any act characterized by dishonesty in fact or unfair dealing); Sullivan, supra (fraud may assume “many hues and forms”).

Accordingly, the Court of Appeals did not err in reversing summary judgment on this claim.

CONCLUSION

We reverse the Court of Appeals’ decision to allow petitioners Rowe and Langley to be added months after the Notice of Appeal was filed. As for the Court of Appeals’ decision to reverse summary judgment on all claims pertaining to the City, we affirm.

AFFIRMED IN PART, REVERSED IN PART.

TOAL, C.J., MOORE, BURNETT and PLEICONES, JJ., concur.