#* * Appellant Exxon Coal U.S.A. Inc. (Exxon) terminated the employment of appellee Tobey Anderson following a positive drug test. Ms. Anderson then brought this diversity suit against Exxon alleging six causes of action under Wyoming law: (1) breach of an implied employment contract; (2) promissory estoppel; (3) breach of the implied obligation of good faith and fair dealing; (4) negligence; (5) invasion of privacy; and (6) intentional infliction of emotional distress. The district court granted Exxon's motion for summary judgment on the negligence and intentional infliction of emotional distress claims. The remaining claims were tried to a jury. At the close of plaintiff's evidence the district court granted Exxon's motion for judgment as a matter of law with respect to Ms. Anderson's invasion of privacy and breach of good faith and fair dealing claims. Ms. Anderson's breach of contract and promissory estoppel claims went to the jury which found that Exxon breached an implied in fact contract with Ms. Anderson and awarded her $416 800 in damages. Exxon filed a renewed motion for judgment as a matter of law or in the alternative for a new trial or remittur. See Fed. R. Civ. P. 50(b). The district court denied the motion and this appeal followed.

Exxon alleges that it was entitled to judgment as a matter of law on the issues submitted to the jury because under Wyoming law the employee handbook upon which Ms. Anderson relied at trial did not create an implied contract of employment and even if it did Exxon did not breach that contract when it fired Ms. Anderson for drug use. In the alternative Exxon argues that it is entitled to a new trial. We hold that the implied contract issue properly presented a jury question but we agree with Exxon that Ms. Anderson's termination for a positive drug test did not breach any contract with her. Accordingly we reverse the judgment.

BACKGROUND

Appellant Exxon Coal U.S.A. is a wholly-owned subsidiary of Exxon Corporation. During the period relevant to this case Exxon owned two mines near Gillette Wyoming operating them through an unincorporated division known as the Carter Mining Company. *fn1 Tobey Anderson worked for Exxon from December 30 1977 until her termination on July 2 1993. She worked most recently in a warehouse at one of the mines as a "Materials Handler Grade 4 " receiving promotions and largely positive evaluations of her work performance.

Exxon provided its employees including Ms. Anderson with the "The Carter Mining Employee Handbook " see R. Supp. Vol. I at tab 157-1 which was "intended to provide all employees unless otherwise noted with some information and guidelines on our general rules and policies for the purpose of encouraging a better work place." Appellant's App. Vol. I at 65. The handbook includes a table of contents introduction summary and index and is divided into seventeen sections in bold-face type some of which include subsections set off in bold-face italicized type. The "Individual Recognition" section includes a subsection entitled "The Carter Mining Company's Philosophy Regarding Unions " and refers to job security. Id. at 70-72. A section entitled "Your Responsibilities" includes separate subsections for Carter Mining's discipline system and its drug policy. Under the "Positive Discipline" subsection the handbook lists twenty-one rules of conduct and explains that the "following list although not all-inclusive is illustrative of the kinds of violations which may result in disciplinary action or termination." Appellant's App. Vol. I at 86.

In the "Rules of Conduct" subsection the handbook lists rules the violation of which "may result in disciplinary action or termination " including: "Misuse of legitimate drugs or the use possession or sale of unprescribed controlled drugs on Company time or property; Possession use distribution or sale of alcoholic beverages on Company property; [and] Reporting to work in an unfit condition." Id. at 86-87 (emphasis added).

The handbook also contains a separate subsection entitled "Policy Statement on Employee Alcohol and Drug Use " which provides in relevant part:

The Carter Mining Company is committed to a safe healthy and productive work place for all employees. The Company recognizes that alcohol drug or other substance abuse by employees will impair their ability to perform properly and will have serious adverse effects on the safety efficiency and productivity of other employees and the Company as a whole. The misuse of legitimate drugs or the use possession distribution or sale of illicit or unprescribed controlled drugs on Company business or premises is strictly prohibited and is grounds for termination. Possession use distribution or sale of alcoholic beverages on Company premises is not allowed. Being unfit for work because of use of drugs or alcohol is strictly prohibited and is grounds for termination of employment. While this policy refers specifically to alcohol and drugs it is intended to apply to all forms of substance abuse.

The Company recognizes alcohol or drug dependency as a treatable condition. Employees who suspect they have an alcohol or drug dependency are encouraged to seek advice and to follow appropriate treatment before it results in job performance problems. . . .

No employee with alcohol or drug dependency will be terminated due to a request for help in overcoming that dependency or because of involvement in a rehabilitation effort. However an employee who has had or is found to have a substance abuse problem will not be permitted to work in designated positions identified by Management as being critical to the safety and well-being of employees the public or the Company. Any employee returning from rehabilitation will be required to participate in a Company-approved after-care program. If an employee violates provisions of the Employee Alcohol and Drug Use Policy appropriate disciplinary action will be taken. Such action cannot be avoided by a request at that time for treatment or rehabilitation. If an employee suffering from alcohol or drug dependency refuses rehabilitation or fails to respond to treatment or fails to meet satisfactory standards of effective work performance appropriate disciplinary action up to and including termination will be taken. This policy does not require and should not result in any special regulations privileges or exemptions from normal job performance requirements.

The Carter Mining Company may from time to time conduct unannounced searches for drugs and alcohol on owned or controlled property. The Company may also require employees to submit to medical evaluation or alcohol and drug testing where cause exists to suspect alcohol or drug use. Unannounced periodic or random testing will be conducted when an employee meets any one of the following conditions: has had a substance abuse problem or is working in a designated position identified by Management a position where testing is required by law or a specified executive position. A positive test result or refusal to submit to a drug or alcohol test is grounds for disciplinary action including dismissal

Id. at 90-92 (emphasis added).

In September 1989 following the Exxon Valdez disaster Exxon adopted the foregoing drug and alcohol policy which was in effect at the time of Ms. Anderson's termination. Exxon distributed the policy to all employees it held training seminars concerning the new policy for all employees and it incorporated the new policy in the January 1990 update of the employee handbook. R. Vol. VIII at 190-192 197-98. Ms. Anderson testified that she read understood and relied on various portions of the employee handbook prior to her termination including the handbook's alcohol and drug policy. R. Vol. III at 96-97 101-117 Vol IV. at 18-20 Vol. V at 27-32.

In May or June 1993 Nick Kasperick a maintenance manager for Exxon received a phone call from Robert Harr a contractor whose company Basin Contracting had previously worked for Exxon. Harr told Kasperick that he had information which led him to believe that "employees at Carter Mining company were involved in drug use." R. Vol. VIII at 178-79. After discussing this conversation with management Kasperick set up a meeting between Harr and Exxon officials. Id. at 179. In early June 1993 Harr met for approximately one hour with Charlie Pate employee relations manager Kenneth Getz accounting and administrative manager and Wayne Jeffrey safety department head. R. Vol. VII(1) at 69 Vol. IX at 21.

At the meeting Harr informed Exxon officials that he had encountered drug and alcohol abuse problems with employees in his business that he had "cleaned house " i.e. terminated some employees because of these drug and alcohol problems and that he was concerned some Exxon employees may also have been involved with alcohol and drug abuse. R. Vol. VI at 180 Vol. VIII at 223 Vol. IX at 24-25. In this context he specifically mentioned four Exxon employees including Tobey Anderson. Harr said that Ms. Anderson called his company asking specifically for one of Harr's employees *fn2 to come to the Exxon mine site and that he considered this request strange. R. Vol. VIII at 225 Vol. VII(2) at 18-19. *fn3 Harr stated that he did not specifically tell Exxon management that Ms. Anderson used sold or distributed drugs see R. Vol. VI at 152 and Getz testified that Harr did not specifically say that Ms. Anderson used drugs. R. Vol. VII(1) at 74. Getz Pate and Jeffrey reported this information to Rodney Harrill general manager of the Carter Mining Company. R. Vol. IX at 112.

Following the meeting with Harr Exxon officials investigated his allegations. After checking records at Exxon and at Basin Contracting Getz determined Ms. Anderson had been involved in the invoicing and approval or verification of Basin's work for Exxon. R. Vol. IX at 57; Vol. VII(2) at 12. Subsequently Exxon requested Jerry Brooks its investigator from Texas to come to Gillette and interview Harr. R. Vol. VIII at 235. Brooks met with Harr for approximately two hours and reported to Pate and Getz that Harr was a "credible witness." R. Vol. VII(2) at 169 200. Based on Harr's information Exxon officials decided to test for alcohol and drug use the four people Harr named. R. Vol. VII(2) at 75 94; R. Vol. IX at 131-32. Two of the employees tested negative and retained their jobs while the other two including Tobey Anderson tested positive and were terminated. R. Vol. IX at 109.

Ms. Anderson's test for alcohol and drugs occurred on June 21 1993. In connection with the test Ms. Anderson was required to list all medications she had taken in the last thirty days. Appellant's App. Vol. I at 95 (Drug Testing Form). After the test she remembered other medications and contacted Exxon to add them to those she had listed. R. Vol. III at 152.

On June 27 Dr. John Schaller a physician and medical review officer for Exxon informed Ms. Anderson that she had tested positive for cocaine. *fn4 Dr. Schaller asked Ms. Anderson to provide him with the labels or ingredients of medications she listed with which he was not familiar. He also ascertained that she had not been to the doctor's office emergency room or had any medical procedures recently. Ms. Anderson informed him that the only other medication she was using but had not listed was a mouthwash for canker sores called "Mother's Mix." Dr. Schaller requested the friend's name who had provided the solution which Ms. Anderson provided to Exxon officials. Subsequently Dr. Schaller requested that she send in the "Mother's Mix" for testing and discovered that it contained cocaine. R. Vol. IX at 179 183-191; R. Vol. III at 155-58 162-63 166-68.

Ms. Anderson testified that she obtained her first container of "Mother's Mix" from a friend named Lonnie Dorward to treat her daughter's sore throat. Ms. Anderson knew that Ms. Dorward's brother had used the solution to treat AIDS-related skin lesions but did not ask what the solution contained. R. Vol. IV at 84-86. Ms. Anderson subsequently asked Ms. Dorward to send a second container of "Mother's Mix" because she was experiencing painful mouth sores. Ms. Dorward told Ms. Anderson that she would try to get some more "Mother's Mix" from her brother's former companion who lived in Las Vegas. Id. at 91-92. Ms. Dorward testified that the companion mailed a vial of the solution to her in New York and she in turn re-bottled and mailed it to Anderson. R. Vol. V at 225-27. The "Mother's Mix" solution had no label Ms. Anderson did not obtain it from a doctor or with a prescription and she did not consult a physician or dentist about using it or about her complaint of mouth sores. R. Vol. III at 155 167; Vol. IV at 84 87.

After "reviewing everything " Dr. Schaller informed Ms. Anderson that her explanation for testing positive was not a legitimate medical explanation and he reported the positive result to Exxon management. R. Vol. IX at 191-92. Based on this positive drug test result Exxon officials terminated Ms. Anderson's employment on July 2 1993. Appellee's Supp. App. at 19. When Mr. Getz called Ms. Anderson to terminate her employment Ms. Anderson sought to explain how she ingested cocaine and tested positive and offered to take drug tests every morning before work in order to retain her job. However Mr. Getz informed her that the termination was final and she had no further hearing with Exxon officials. R. Vol. III at 168; Vol. VII(1) at 54. Ms. Anderson then brought this action.

DISCUSSION

We review de novo the district court's determination of a renewed motion for judgment as a matter of law applying the same legal standard as the district court. Haines v. Fisher 82 F.3d 1503 1510 (10th Cir. 1996). Under this standard we may find error in the district court's denial of the motion only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion. Id. "We do not weigh the evidence pass on the credibility of the witnesses or substitute our conclusions for that of the jury. However we must enter judgment as a matter of law in favor of the moving party if 'there is no legally sufficient evidentiary basis . . .with respect to a claim or defense . . . under the controlling law.'" Harolds Stores Inc. v. Dillard Dep't Stores Inc. 82 F.3d 1533 1546-47 (10th Cir.) (citations omitted) (quoting Fed. R. Civ. P. 50(a)) cert. denied 136 L. Ed. 2d 216 117 S. Ct. 297 (1996). In this diversity case the substantive law of Wyoming controls the analysis of the underlying claims while the appropriateness of a Rule 50 judgment as a matter of law is a federal procedural issue. See Sellers v. Allstate Ins. Co. 82 F.3d 350 352 (10th Cir. 1996); Lyon Dev. Co. v. Business Men's Assurance Co. of Am. 76 F.3d 1118 1121-22 (10^th Cir. 1996). *fn5

A. Contract

Ms. Anderson contends that Exxon's employee handbook created a contract with her because "the . . . handbook listed specific causes for discipline and discharge provided a progressive discipline system promised employees fairness trust job security and the weighing of extenuating circumstances . .. ." Appellee's Br. at 23. She argues that at the least these handbook provisions made the contract issue a jury question and amply supports the jury's affirmative finding on the question.

Exxon responds that handbook language emphasizing trust fairness team efforts security cooperation and the like are simply generalized statements of aspiration goals and unambiguously do not amount to an objective manifestation of assent to contract under Wyoming law. Defendant-Appellant's Br. at 18. Exxon further argues that the progressive discipline provisions of the handbook do not create a contract because they expressly permit the company to bypass positive discipline if "in the company's opinion an employee commits an act of such magnitude . . . [that] immediate termination is warranted." Id. at 19 (internal quotations omitted). One such act it contends is drug use. Id. Finally Exxon argues that the terms of the company's drug policy in the handbook did not create an implied contract under Wyoming law relating to the effect of drug alcohol and contraband policies promulgated by employers. Id. at 24-25.

"Employment contracts are presumed to be at will in Wyoming and absent more discharge may occur without cause." Garcia v. Uniwyo Fed. Credit Union 920 P.2d 642 645 (Wyo. 1996); see also Sanchez v. Life Care Ctrs. of Am. 855 P.2d 1256 1257 (Wyo. 1993). An employee handbook may however alter the at-will presumption if its terms reasonably create an expectation on the part of an employee that the company will not discharge him or her without cause. See Loghry v. Unicover Corp. 927 P.2d 706 710 (Wyo. 1996) ("an employment handbook may imply a contractual term requiring termination for cause"); Garcia 920 P.2d at 645; Wilder v. Cody Country Chamber of Commerce 868 P.2d 211 216 (Wyo. 1994) (implied in fact contracts of employment arise from a mutual agreement and intent to promise which is found in the acts or conduct of the party sought to be bound including statements in employee handbooks); McDonald v. Mobil Coal Producing Inc. 820 P.2d 986 990 (Wyo. 1991) (holding handbook provisions and employer's course of dealing relevant in determining existence of contract). "The benefits extended to the employee in the handbook are enforceable contract terms because they are supported by consideration flowing to the employer. That consideration consists of the benefit of an orderly cooperative and loyal work force." Leithead v. American Colloid Co. 721 P.2d 1059 1062-63 (Wyo. 1986); see also Mobil Coal Producing Inc. v. Parks 704 P.2d 702 707 (Wyo. 1985).

Certain handbook provisions are especially probative of the existence of an implied in fact contract: those intended to include that which is usually found in a labor agreement Parks 704 P.2d at 706-07; and those that describe a discipline system and list infractions which may result in discipline or termination. 704 P.2d at 705-06; see also Garcia 920 P.2d at 646 (explaining that to make an implied in fact contract handbook must clarify what constitutes cause or include a progressive discipline schedule); Leithead 721 P.2d at 1063 ("By listing misconduct that could result in discharge the handbooks imply that cause is required.").

As indicated above the handbook contained numerous elements similar to those described in the Wyoming cases including those just listed. Chief among those factors are the discipline provisions strongly indicating that employees could not be terminated except for cause.

In Wyoming such provisions may create an expectation on the part of an employee that they will be followed and they may induce an employee to continue his employment. Parks 704 P.2d at 707. More important Wyoming law makes clear that determination of whether an implied contract exists is usually a question for the trier of fact. Continental Ins. v. Page Eng'g Co. 783 P.2d 641 651 (Wyo. 1989).

Here although we regard it as a close question we hold there was enough in the Exxon handbook to permit the question of the existence of an implied contract to go to the jury. Likewise we hold that the evidence is sufficient to uphold the jury's finding that the handbook created a contract between Exxon and Ms. Anderson requiring termination only in accordance with terms set out in the handbook.

In reaching these conclusions we have considered but are unpersuaded by Exxon's arguments with respect to the drug and alcohol policy alone. Exxon relies on Horne v. J.W. Gibson Well Serv. Co. 894 F.2d 1194 1195 (10^th Cir. 1990) where applying Wyoming law we held that an employee handbook which included a drug-use policy did not contain provisions sufficient to alter employment at will. We noted however that the employee handbook in that case did not extensively list conduct which may lead to discharge or establish a progressive discipline system and that the presence of such factors can limit an employer's right to discharge an employee. 894 F.2d at 1195-96 n.3.

B. Breach

The question then becomes whether any reasonable jury could find that Exxon breached its handbook contract with Ms. Anderson when it fired her because of a positive drug test. Exxon says not. In support it relies primarily on the following handbook provision which is part of the "Policy Statement on Employee Alcohol and Drug Use:"

The Carter Mining Company may from time to time conduct unannounced searches for drugs and alcohol on owned or controlled property. The Company may also require employees to submit to medical evaluation or alcohol and drug testing where cause exists to suspect alcohol or drug use. Unannounced periodic or random testing will be conducted when an employee meets any one of the following conditions: has had a substance abuse problem or is working in a designated position identified by Management a position where testing is required by law or a specified executive position. A positive test result or refusal to submit to a drug or alcohol test is grounds for disciplinary action including dismissal.

Appellant's App. Vol. I at 68-69 (emphasis added).

Ms. Anderson makes several arguments in response: (1) Exxon had no cause to suspect that she was using drugs; (2) the misconduct relied upon for termination had no connection to the workplace; (3) management did not adequately investigate any charge of drug use before requiring testing; (4) the company did not weigh extenuating circumstances; (5) the company was obligated to--and did not--apply the progressive discipline system; and (6) the company breached its obligation to treat employees fairly provide job security and build trust. Appellee's Br. at 24.

Taking these arguments in order we first address the "cause to suspect" prerequisite for a drug test. Ms. Anderson devotes a considerable portion of her brief to the proposition that Robert Harr was not a reliable informant and that he did not specifically accuse Ms. Anderson of drug use in any event. She also argues that Exxon's investigation failed to establish "cause" to suspect drug use and was inadequate. Appellee's Br. at 13-18 40.

The drug policy does not require any investigation. It only requires cause to suspect in order to require a drug test. Suspicion in this civil contract setting does not relate to Fourth Amendment standards. It must be accorded its common meaning in ordinary parlance which according to the dictionary includes doubt mental uneasiness and uncertainty or to imagine one to be culpable without proof or with a slight touch or trace of proof. Webster's Ninth New Collegiate Dictionary 1189 (1985). See Union Pac. Resources Co. v. Texaco Inc. 882 P.2d 212 220 (Wyo. 1994) (words in contract must be given their "plain meaning"). That definition establishes an extremely low threshold for "cause " understandably so where drug use is concerned.

The evidence here satisfies that standard within the requirements of our standard of review. Exxon received four names including Ms. Anderson's in the context of a report about drug use at its mine had no reason to disbelieve the information had no contractual duty to make a further investigation and tested all four of the people mentioned. Cf. Garrison v. Department of Justice 72 F.3d 1566 1568 (Fed. Cir. 1995) (holding under stricter Fourth Amendment standard that employer had reasonable suspicion for drug test based on available information regardless of facts subsequently available or discoverable through further inquiry) cert. denied 136 L. Ed. 2d 250 117 S. Ct. 358 (1996).

The balance of Ms. Anderson's arguments--a duty to weigh extenuating circumstances apply progressive discipline and treat her fairly--relate to her underlying position that the drug policy provisions of the handbook cannot be read in isolation from the progressive discipline and other sections. The district court apparently agreed holding that the jury should determine the effect of these handbook provisions.

We respectfully disagree with our distinguished colleague on the district bench and with Ms. Anderson on this issue. The Wyoming Supreme Court has held that "general terms and provisions in a contract yield to specific ones if not reconcilable." Landen v. Production Credit Ass'n of Midlands 737 P.2d 1325 1328 (Wyo. 1987). Here any general promise of job security or promise of progressive discipline in various circumstances is controlled by the specific language that a positive drug test is ground for disciplinary action or termination. *fn6 The handbook could not be clearer on the point. There is nothing for a jury to decide without asking it to rewrite the handbook provision relative to the company's right to terminate an employee for a positive drug test. And given the prevailing mood in society about drugs it would be surprising that anyone would think that an employer would forfeit the right to fire an employee testing positive for drugs.

As we said in Williams v. Maremont Corp. 875 F.2d 1476 1486 (10th Cir. 1989) what the employer did here--fire a faithful long-term employee with an essentially unblemished record for a single seemingly small infraction-may have been unfair and harsh but that is not the question. The question is whether the employer had the right to do what it did. We hold that the handbook gave Exxon the right to terminate Ms. Anderson.

CONCLUSION

Accordingly Exxon's post-trial motion for judgment as a matter of law should have been granted. The judgment of the district court is REVERSED.

ENTERED FOR Court

Stephen H. Anderson

Circuit Court

Dissenting: The Hon. Justice Briscoe

I respectfully dissent. I agree with the majority that the question of whether the employee handbook created an implied contract was properly submitted to the jury and that there was sufficient evidence presented to the jury for it to find the handbook created a contract between Tobey Anderson and Exxon. Where I part company with the majority is in its resolution of the issue of whether Exxon breached the contract. The specific issue we must first address is not whether an Exxon employee can be terminated after testing positive for cocaine but whether Exxon had cause to require this employee to submit to drug testing.

The handbook does not require employees to submit to drug testing whenever the company has a mere unfounded suspicion of drug use. It requires employees to submit to testing only when there is cause to suspect drug use. Cause is defined as "reason" or "good or adequate reason." Webster's Third New International Dictionary 356 (1993). The company's employee relations manager testified that cause to suspect alcohol or drug use means "reasonable cause." R. Vol. VI at 99 Vol. VII(1) at 16. *fn1 The threshold for cause may be low but not as low as the majority would make it. Here there was a great deal of evidence that Exxon had no cause whatsoever to suspect Anderson was using or distributing drugs.

As the majority notes of those present at the meeting between Robert Harr and Exxon management only personnel director Kenneth Getz recalled Harr making any specific allegation that Anderson used or distributed drugs. Harr and Charles Pate both testified that Harr did not say Anderson used or distributed drugs. Rodney Harrill who made the decision to test Anderson acknowledged that he heard no information stating Anderson used or distributed drugs. R. Vol. VII(2) 55-56 67. Conflicts in the evidence are for the jury to resolve. Consequently we must presume the jury found that Harr did not allege Anderson used or distributed drugs.

Moreover Exxon did not receive Anderson's name in the context of a report concerned solely with drug use and distribution at the mine. Harr alleged conflicts of interest and disloyalty as well as drug use by Exxon employees. There was evidence that Harr alleged drug use or distribution by some unnamed Exxon employees and identified only one Exxon employee Lowell Sherrod as a user. R. Vol. VI 166-67. Harr named three other employees including Anderson in his conversation with Exxon management but there was evidence he alleged only disloyalty and conflicts of interest and did not allege they used or distributed drugs. There was evidence that his only allegation against Anderson was that she used her position with Exxon to give work to Dan Hodgin her boyfriend's son. R. Vol. VI 163-67 181 191 204-05; Vol. VII(1) 69-74 90-91; Vol. VIII 225.

Even Exxon investigator Jerry Brooks did not consider Anderson a drug suspect. Neither Harr nor the one other person Brooks interviewed told Brooks that Anderson used or distributed drugs. Brooks' only concern about her was the possible conflict of interest. R. Vol. VII(2) 158 170 194 198 204-05. Neither Brooks nor mine management learned anything that could support a suspicion that Anderson used or distributed drugs. Harrill based his decision to test Anderson for drugs largely if not entirely on Harr's statement that Anderson had requested that her boyfriend's son be sent from Basin Contracting to do work for Exxon. R. Vol. VII(1) 74-76. This information concerning a potential conflict in interest would not provide cause to suspect Anderson of drug use.

There was also evidence Exxon had reason to question the accuracy of Harr's allegations. Exxon was aware through Brooks its investigator that Harr had no personal knowledge of any of the drug allegations R. Vol. VII(2) 122-24 167 and that any information Harr had received from Houston Aars was at least six months out of date. R. Vol. VII(2) 165-66. Brooks also learned that Harr's allegation against Exxon employee Jim Smith was incorrect. R. Vol. VII(2) 116-22 146-47 163. There was also evidence Exxon had in its possession information showing that some of Harr's allegations could be incorrect. Harr had alleged Exxon employee Kathy Heppner had been accepting favors in exchange for giving business to Basin but Exxon records showed Heppner had not approved any of Basin's invoices. Nor were there any discrepancies between invoices and tally sheets that would suggest any financial irregularities by Exxon employees. R. Vol. VII(1) 50-52 76-78 86; Vol. VII(2) 12 61 63 119-22 146-47 152 163; Vol. VIII 234-38; Vol. IX 57-58 71. Had management bothered to check Anderson's employment records or to ask her supervisors they would have found no indication that she used or distributed drugs. To the contrary they would have discovered she was an excellent employee with an excellent employment record.