concurring and dissenting Nos. 90-15424, 90-15460 and 90-15623
The principal issue presented by this appeal is whether there was sufficient evidence to present a jury question regarding an implied contract of employment between the Las Vegas Hilton and its 37 fired employees. Because it misconstrues Nevada law in resolving this issue, the majority dismisses categorically several types of evidence which the jury properly considered. The majority also mischaracterizes the evidence consisting of Hilton’s numerous assurances to plaintiffs that they would be terminated only for cause, as nothing more than the plaintiffs’ subjective expectations or a few “stray statements.” Not only do I believe that the totality of the facts support a triable issue which was properly submitted to the jury, but I fear that the majority’s interpretation of Nevada law regarding implied contracts seriously erodes the factfinding function of the jury. I respectfully dissent.
I.
Under Nevada law, the at-will presumption may be rebutted by evidence of an implied contract of employment. See Bally’s Grand Employees’ Fed. Credit Union v. Wallen, 105 Nev. 553, 779 P.2d 956, 957 (1989) (per curiam). If such evidence exists, the factfinder may determine whether an employer has “a contractual obligation not to discharge the employee without first abiding by conditions relating to dismissal which are either expressly agreed upon by the parties or inferable from the dealings and practices of the parties.” D’Angelo v. Gardner, 107 Nev. 704, 819 P.2d 206, 209 (1991). See also K Mart Corp. v. Ponsock, 103 Nev. 39, 732 P.2d 1364, 1366 n. 1 (1987) (recognizing that the at-will presumption can be rebutted by even “a tacit agreement [which] was implied in fact from the conduct of the parties”).
The factfinder may consider various types of evidence in determining whether an implied “for-cause” employment contract existed. An employee handbook or detailed procedures for discipline and dismissal of employees may be evidence of an enforceable contract. See Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261, 261-62 (1983) (employee handbook); D’Angelo, 819 P.2d at 212-13 (disciplinary procedures listed in handbook). Other relevant evidence may be the “dealings and practices of the parties,” id. at 209, and expressions of job security conditioned upon satisfactory job performance. See K Mart, 732 P.2d at 1366 n. 1 (finding the at-will presumption rebutted by, inter alia, employer’s oral and written “representation] to [plaintiff] that he would remain on the job until he retired as long as he did his job satisfactorily”). It is less clear whether longevity of employment can support a finding of an implied contact, although it is relevant in analyzing whether a bad faith discharge claim exists. See D’Angelo, 819 P.2d at 215 (suggesting that an employee with almost ten years of employment would be more likely to prevail on a bad faith tort claim than one with less than two years employment). Any one of these factors alone is often insufficient to defeat the at-will presumption. See, e.g., Vancheri v. GNLV Corp., 105 Nev. 417, 777 P.2d 366, 369-70 (1989) (refusing to find that the establishment of disciplinary procedures for employees “in and of itself” rebuts the at-will presumption). Rather, it is the totality of the circumstances surrounding the employment relationship that must be examined. See Stone v. Mission Bay Mortgage Co., 99 Nev. 802, 672 P.2d 629, 629-30 (1983) (per curiam) (reversing summary judgment for employer despite employee’s signed application agreeing that she could be terminated at any time, because other evidence raised a question of fact as to whether the application was intended to be the contract between the parties).
*770Here, the plaintiffs’ evidence included: (1) the longevity of their employment, ranging from 11 to 17 years; (2) a written handbook setting forth rules providing the basis for discipline and termination; (3) Hilton’s practice of giving written warnings before terminating employees; (4) statements by Hilton management that the plaintiffs would have their jobs, so long as they performed their jobs satisfactorily; (5) promises by Hilton management following layoffs in 1982 and 1983, that “there will be no more layoffs” and “no more terminations”; (6) assurances of job security when discouraging a union organizing effort; and (7) statements that the plaintiffs were part of “the Hilton family.” Under Nevada law, the totality of the circumstances presented by the evidence raised a question of fact for the jury to decide whether there was an implied contract of employment.
A. Evidence Other Than Hilton’s Representations
The majority dismisses several types of relevant evidence, by concluding that general expressions of long-term employment, standard disciplinary procedures, longevity of service, and subjective expectations of continued employment should not have been considered by the jury at all. See Majority Opinion, at 759-761. In fact, all the evidence presented by the plaintiffs, taken as a whole, was properly considered by the jury because the collective evidence raised a question of fact whether the at-will presumption had been rebutted, even if some of the evidence, considered in isolation, would have been insufficient.
I agree with the majority that “[gjeneral expressions of long term employment or job advancement” or “the establishment of standard disciplinary procedures ... in and of itself” is insufficient to convert an at-will employee to a for-cause employee. Vancheri, 777 P.2d at 369-70 (emphasis added). Similarly, no one disputes that evidence “establishpng] nothing more than ... subjective expectations of continued employment, ... is legally insufficient to rebut the presumption of at-will employment.” Bally’s, 779 P.2d at 958 (emphasis added). Although, as I have indicated, Nevada law is less clear about the relevance of longevity of service in determining whether an implied contract exists, cf. D’Angelo, 819 P.2d at 215, I will assume, arguendo, that longevity of service alone is also insufficient to rebut the at-will presumption.
The problem lies in the leap of logic made from these statements of law. Taken together, these cases merely stand for the proposition that any one or, at best, two of the following factors — general expressions of long-term employment, the establishment of disciplinary procedures, longevity of service, or an employee’s subjective expectations — do not defeat the at-will presumption. See, e.g., Vancheri, 777 P.2d at 370 (general expressions of job longevity and disciplinary procedure described in that case are insufficient to rebut the at-will presumption). These cases, however, say nothing about the relevance of such evidence when they constitute only part of the cumulative case-in-chief presented by a plaintiff Indeed, given the care with which the Nevada Supreme Court qualified its holdings, Vancheri and Bally’s actually imply that general expressions of long-term employment or disciplinary procedures, when considered with other types of evidence, must be considered by a jury to resolve whether an implied contract existed. This understanding of Vancheri — that only a limited set of facts will completely bar jury resolution of the implied contract issue — was recently confirmed by the Nevada high court’s own description of that case: “We said in Vancheri that the mere establishment of [disciplinary] procedures by an employer would not ‘in and of itself’ create an obligation of continued employment.” D’Angelo, 819 P.2d at 211 (emphasis added).
Thus, an inadvertent flaw in logic leads to the majority’s conclusion that “the only factor which the jury properly could consider in deciding the employment contract question is whether Hilton management agreed to terminate the plaintiffs only for failure to perform satisfactorily.” See Majority Opinion at 760-761. Nevada law *771does not support that majority linchpin. Therefore, I would find that the jury properly considered, in resolving the implied contract question, the evidence of Hilton’s progressive disciplinary system as set forth in its employee handbooks, its longstanding practice of providing warnings prior to terminating employees, its general expressions of long-term employment, the longevity of the plaintiffs’ satisfactory service, and the inducements extended by Hilton to retain the plaintiffs.
B. Specific Representations of For-Cause Employment
Turning to the crux of the plaintiffs’ case, the majority characterizes Hilton’s representations as nothing more than the plaintiffs’ “subjective expectations” that they would not be fired. It further claims that the “large majority” of the plaintiffs did not receive such assurances or that they were advised to the contrary. See Majority Opinion, at 764-765. In doing so, the majority overlooks the substantial evidence of specific promises and representations by Hilton management that the plaintiffs’ employment would continue, as long as the plaintiffs performed satisfactorily. Moreover, the majority’s attempt to cast these representations as unfounded assumptions or “stray statements” is undermined by the fact that Hilton made some of these representations in response to specific employee concerns about job security during critical points in the Las Vegas Hilton’s history. As the quantity, quality, and factual context of Hilton’s representations indicate below, more than enough evidence existed for a jury to infer that Hilton modified the “at-will” relationship because it did not want the plaintiffs to leave their jobs.
1. Representations at commencement of and during employment
First, numerous plaintiffs testified that they had received from Hilton management assurances of “for cause” employment— i.e., employment as long as they did their jobs properly — at the time of their hiring or during their term of employment. The following excerpts from the trial are but a few examples:1
[Q:] When you were hired at the Hilton, did you have any conversation with Mr. Haines or anyone else in management regarding how long you could expect to work there?
[A:] Yes. As we were walking to see Newman, Mr. Haines told me that this was a good job, good working conditions, and I’d never have to worry about my job as long as I did it, that I’d have— the only way I can be fired would be to fire myself
RT XXXII(A)-9 (Delling direct).
* * * * * *
[Q:] Were you told anything by management with regard to job security?
[A:] Well, I was told by Jimmy Newman that for as long as I did my work properly, I’d have a job.
[Q:] And what was Jimmy Newman’s position at the time?
[A:] He was the casino manager.
[Q:] Now, in 1971, when Hilton acquired the International, do you recall what changes, if any, occurred?
[A:] In management itself none, really. None that affected the dealers. All the management was pretty much still the same. Jimmy Newman was still the casino manager.
RT XXX-11-12 (Borsage direct).
* * * * * *
[Q:] Did anyone from Hilton management tell you anything about how long you could expect to be employed?
[A:] When I started after my dealers training program, Mr. Hybarger, he took me in the office and told me, said, “As long as you do your job, and keep your nose clean, you don’t have anything to worry about.”
RT XX-34 (Pollins direct).
5k Hi * * * *
[Q:] Did you ever receive any assurances — did anyone from management *772ever say anything that led you to believe — that your job was secure?
[A:] Well, at the time that I was hired, Bud Haines told me that I was a good dealer; and it was his policy that as long as we performed our job satisfactorily, that we would always have our jobs. And I received numerous remarks of the same nature over the years from Bud Haines.
RT XXIX(A) 60-61 (Landers direct).
See also RT XXIII-13 (Hineline); RT XXVIII-102 (Grace); RT XXIX-27 (Dawson); RT XXXI-9 (Prewitt); RT XXXII-49 (Jodra); RT XXXII(A)-9, 11 (Delling); RT XXXIV(B)-39, 42, 45, 53 (Penny); RT XIX-22 (Brooks).
The majority points out that Art Castle may not have told the plaintiffs at the time of their hiring that they could only be terminated by terminating themselves. See Majority Opinion at 760-761. This is of little significance when the record reveals that other members of Hilton management did make such representations to some plaintiffs at the time of hiring and thereafter. See Ahmad, 668 P.2d at 262 (recognizing that employers and employees are free to modify the terms of their employment relationship after the commencement of employment).
The majority also presents selective portions of the plaintiffs’ evidence to question the jury’s determination that an implied contract existed between Hilton and the plaintiffs. See Majority Opinion, at 761-764. Yet the majority fails to include testimony by the very same plaintiffs tending to diminish or place into context the impact of the selected excerpts. For example, plaintiff Stanford is quoted as “assuming” that his job would be secure as long as he complied with Hilton’s rules and did his job properly. See Majority Opinion, at 761. The majority, however, fails to point out that this assumption stemmed from management’s practice of giving warnings before terminations:
[A:] ... Bud Haines always had a policy that as long as you did your job, you really wouldn’t have any problem. It was kind of a fire-yourself type thing. If you had a problem, he would come to you and warn you. If you did it again, he may warn you again. And probably the third time you were out the door. But he always gave you a couple of chances to clean up your act.
RT XIX-124 (Stanford direct).
Similarly, the majority quotes plaintiff Hineline to illustrate that plaintiffs had only expectations or assumptions about continued employment. See Majority Opinion, at 762. Again, in doing so, the majority overlooks testimony which raises a question as to whether Hineline’s assumptions arose from direct representations of job security from Hilton management:
[A:] ... I had talked to Sam Belkan about ... whether or not I had anything to worry about as far as job security. And like I stated before, that he said that as long as I did my job, and kept my nose clean, I’d have a job. That was what he stated.
RT XXIII-13 (Hineline direct).
Cross-examination is the “greatest legal engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970) (quoting 5 J. Wigmore, Evidence § 1367 (3d ed.1940)). And often witnesses’ testimony on direct examination is weakened by clever cross-examination. Other than in unusual cases, however, this merely presents a question for the jury as to the strength of the testimony. In evaluating this evidence, we must be mindful that “[t]he very essence of [the jury’s] function is to select from among conflicting inferences and conclusions that which it considers most reasonable.” Schulz v. Pennsylvania R.R. Co., 350 U.S. 523, 526, 76 S.Ct. 608, 610, 100 L.Ed. 668 (1956) (quoting Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944)). Moreover, “[i]t is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences.” Id. at n. 8 (quoting Tennant, 321 U.S. at 35, 64 S.Ct. *773at 412). Thus, although the majority properly points out portions of the record tending to weaken the plaintiffs’ case, other evidence from those same witnesses indicate that they had received assurances of continued employment and support the district court’s decision that a jury question existed.
2.Meeting following the Hilton fire
Plaintiffs also presented evidence that, in the aftermath of the 1981 Hilton fire, management held a meeting to thank them for their willingness to volunteer as maids and porters as Hilton coped with the damage. During this meeting, management reassured the plaintiffs that their jobs were secure, despite the troubles that beset Hilton because of the fire:
[Q:] Do you recall any other meeting where someone from Hilton management talked to you about job security?
[A:] Well, the next meeting we had happened after the fire.... We were called to a meeting when we were supposed to be reintegrated back to work.... [Lewin told] us that the Hilton Corporation would open the hotel even with the tower still damaged by the fire, that he would open the hotel for us, the employees, because we were part of the Hilton family. And he told us that we did not have to worry about our jobs with the Hilton as long as we continued working in the same manner we had worked to up to the fire.
RT XXXII-49 (Jodra direct).
* * * * * *
[Q:] Did Mr. Lewin say why he was holding this meeting?
[A:] No, but I think they was talking about — if I recall — going back to work [after the fire].... But [Lewin] was talking, giving thanks to all of us for the job we performed in the hotel, you know....
[Court:] Just tell us what [Lewin] said.
[A:] So he said I’ve got a secure job. I’ve got no problems at all.
RT XXX 81-82 (Torres direct).
3. Preventing union organizing efforts at the Hilton
The testimony at trial also revealed that Jimmy Newman, Hilton’s casino manager, assured plaintiffs of job security in an attempt to discourage employee interest in joining a union:
[A:] There was [a union scare] ... and Jimmy [Newman] wanted to nip it in the bud by talking to all of us, saying ... you know, a union is a bad thing.... That as long as you guys do what you’re supposed to do you will have a secure job.
RT XXXIV(B) 39 (Penny direct).
* * * $ * jje
[A:] ... once we were having union talk going around. Mr. Newman talked to some groups and told us we had the best job in town and the best conditions and the best job security, and we didn’t need a union.
[Q:] And did you believe that was true?
[A:] Yes.
RT XXXII(A)-11 (Delling direct).
4. Meeting following the “St. Patrick’s Day Massacre”
The record also indicated that Hilton management held a meeting specifically to assure plaintiffs of job security after Hilton fired a large number of employees in the so-called “St. Patrick’s Day Massacre” of 1982:
[A:] There was a — the terminations we’ve been talking about, the St. Patrick’s Day Massacre occurred, and there was some concern in the casino pits as to the reasons why....
And Mr. Lewin’s first statement, I believe, was “This meeting is about job security. We’ve had a recession. We’ve had to let some people go. There will be no more mass firings or terminations, ” and that we’re all a big family. “This is the group we want. We’re pleased with you people,” ...
RT XIX-21 (Brooks direct).
******
*774[A:] They had several major layoffs, and after two or three of them [Lewin] called another meeting....
[A:] ... They just dumped off a bunch of people, two times, and they evidently heard that we were getting a little skittish, and to try to calm us down they had another meeting.
[A:] ... And [Lewin] mentioned again about being a family and he wanted to do the best thing he can for us. That’s about the only thing that really stood out in my mind that he talked about other than, you know, he wanted to reassure us that our jobs were secure....
RT XXXIV(B) 46-48 (Penny direct).
* , Sk * * * *
[Q:] Now after these mass terminations, were you at all concerned about your job?
[A:] No, ma’am, I really wasn’t concerned with my job.... [B]ut, there was a lot of concern in the hotel. That was very obvious, simply because it was so noticeable that I think Hilton management decided to hold a meeting to try to insure [sic] people that there would be no more than that.
Mr. Lewin, I believe Mr. Hilton, Mr. Newman — there was a lot of people at that meeting.... [Lewin] let us know that there would be no more of that [mass firings], and that we were a part of the Hilton Corporation. We were, as his words I might say, we were part of the Hilton family.
RT XXIII-50 (Rexroad direct).
5. Assurances of no more firings after 1983 management firings
The Hilton terminated several senior casino management officials the following year. The Hilton’s blackjack pit manager John Stewart, however, personally assured numerous plaintiffs that there would be no more terminations and that management was satisfied with the team it had in place:
[A:] ... [Stewart] says, “I realize there’s a lot of apprehension around the hotel right now because of the recent firings, but that’s over and done with and as far as we’re concerned, you’re on our team.”
RT X-61 (Saunto direct).
* * * * sje *
[A:] ... [Stewart] come through and he told me personally and he was quite loud, you know. He said that there will be no more terminations, everything is running beautiful now. We did what we had to do, and now there won’t be any more terminations. Everything will be fine from here on.
RT XXIV(A)-8 (Mikitaroff direct).
* * * * * *
[Q:] Did anyone from Hilton management ever say anything to you after Mr. Haines had left?
[A:] John Stewart — I think it was within a couple of days after Bud Haines had left.... [A]nd [Stewart] told us that we had nothing to worry about, that there wasn’t going to be any changes, that that was the end of the changes.
RT XXIX(A)-61 (Landers direct).
* * * * * *
[A:] Well, John Stewart, he came up to the dealers room after one of the big layoffs that they had.... [A]nd he said ‘Hey, fellows, it’s all over. There’s not going to be any more firings, et cetera. Just do what you’re supposed to do and your job is secure, ’ is what he said to these three guys at the card table.
RT XXXIY(B) 41-42 (Penny direct).
The majority characterizes the. above evidence as nothing more than “[s]tray statements directed to a small number of individual employees.” See Majority Opinion, at 764. The record belies this characterization. At least two meetings, the meetings following the Hilton fire and the St. Patrick’s Day Massacre, were held in part for the express purpose of assuring plaintiffs that their jobs would remain secure, notwithstanding the fire and layoffs that so troubled the employees. Senior Hilton management officials, including Chairman Barron Hilton, attended one of these meet*775ings where promises of job security were made, thereby lending further legitimacy to these representations. See RT XXIII-50 (Rexroad direct).
The majority also seeks to cast doubt on the relevance of these many representations of job security by citing a Washington case and a federal diversity case applying Washington law. See Smoot v. Boise Cascade Corp., 942 F.2d 1408 (9th Cir.1991); Lawson v. Boeing Co., 58 Wash.App. 261, 792 P.2d 545, 548 (1990), rev. denied, 116 Wash.2d 1021, 811 P.2d 219 (1991). Nevada, not Washington law, governs this case. The Nevada Supreme Court has declared that such oral promises of job security, conditioned upon satisfactory job performance, can be considered in support of a finding that the at-will presumption has been rebutted. See K Mart, 732 P.2d at 1366 n. 1.
Nevada courts have also observed that “employees may be induced by employers to ... remain on the job by the conduct, policy and implied promises of the employer. Such employees may, accordingly, have enforceable rights which can be asserted in the courts.” D’Angelo, 819 P.2d at 213 (discussing with approval Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373 (1988)). Here, substantial evidence indicates that the plaintiffs’ expectations arose from Hilton’s affirmative representations of job security and of terminations only for cause. Thus, their expectations were not unilateral or unfounded. Given the factual backdrop of these assurances, a reasonable jury could conclude that Hilton’s “conduct, policy and implied promises” revealed a desire to modify the employment relationship to one other than “at-will” for good reasons: the retention of “the best employees in the business” who had demonstrated loyalty in the aftermath of a devastating fire, the belief that an implied “for-cause” relationship with employees was an economically sounder alternative than unionized employees, and the need to prevent “skittish” employees from seeking employment elsewhere after the mass firing of other employees. Although we cannot state as a matter of law whether Hilton’s representations actually established an implied contract, there was certainly more than enough evidence to raise a question of fact as to whether such an employment relationship existed.
Unfortunately, I must disagree with the majority’s belief that the recently decided case, D’Angelo v. Gardner, 107 Nev. 704, 819 P.2d 206 (1991), does not affect our analysis. In D’Angelo, the Nevada Supreme Court affirmed the importance of a jury’s role in resolving factual questions regarding the nature of an employment contract,2 by holding that an employee handbook, which contained provisions relating to termination for proper cause, provided sufficient evidence to submit the implied contract issue to the jury. Id. 819 P.2d at 210. In the case before us, there was also evidence of Hilton’s handbooks containing provisions relating to grounds for termination. See Tr. Ex. 62. D’Angelo provoked a bitter dissent decrying its impact as “striking) at the validity or decency of the at-will employment doctrine” because it “virtually paves the way for a challenge to all forms of termination in Nevada based upon ‘conditions relating to dismissal which are ... inferable from the dealings and practices of the parties.’ ” Id. at 230 (Stef-fen, J., dissenting) (quoting majority opinion, id. at 209).
Contrary to the majority’s view that D’Angelo “endorsed” Vancheri, the case also distinguishes and limits Vancheri. See Majority Opinion, at 765. In refusing to find Vancheri dispositive, D’Angelo cites Vancheri as an example in which a dearth of evidence bars a jury from resolving the questions of fact usually within its realm. The D’Angelo dissent recognizes as much, when it complains that:
... the majority’s disregard of the clear doctrine recently announced by this court in Vancheri introduces nothing but un*776certainty and confusion in the area of wrongful discharge and at-will employment. Moreover, the majority undermines this court’s unanimous declaration in Vancheri concerning the importance of permitting employers to develop sound disciplinary procedures to caution employees. ...
D’Angelo, 819 P.2d at 227 (Steffen, J., dissenting).
The instant case resembles D’Angelo more than Vancheri. Here, the plaintiffs marshalled equally compelling evidence as that presented in D’Angelo. In fact, not one, but numerous, representations assured them of termination only for cause, unlike plaintiff D’Angelo, who “received no commitments or promises regarding length or security of his employment_” D’Angelo, 819 P.2d at 224 (Steffen, J., dissenting). This, of course, was in addition to the evidence discussed earlier regarding Hilton’s written disciplinary system described in the handbooks, its established practice for providing warnings prior to terminations, and the longevity of plaintiffs’ employment. In contrast, the evidence in Vancheri merely consisted of general expressions of job longevity and a disciplinary procedure that may not have even applied to the plaintiff.3 See Vancheri, 777 P.2d at 369. The extent of the representations made to the plaintiff was that “he would have a long and successful association with the GNLY family,” id. at 367, and that he had “a great future” and advancement potential within the business. Id. at 369. These remarks are a far cry from the explicit assurances to the plaintiffs here that they would not be terminated if they performed satisfactorily and that there would be no more firings.
The majority’s reliance on Bally’s, 779 P.2d at 957, and Smith v. Cladianos, 104 Nev. 67, 752 P.2d 233 (1988), is also misplaced. The plaintiff in Bally’s only presented evidence regarding her subjective expectations of for-cause employment and her participation in long-term employee benefit programs, without pointing to affirmative representations of for-cause employment, as plaintiffs have done here. Bally’s, 779 P.2d at 957-58. Smith involved an employee fired for alleged insubordination, who primarily relied on a handbook provision regarding probationary employees to rebut the at-will presumption. Smith, 152 P.2d at 234-35. Unlike the Hilton plaintiffs, at no time did she allege that the employer had represented that she would not be terminated except for cause.
This is not to say that no evidence supports the majority’s suggested result that no implied contract existed. As the majority itself details, some plaintiffs were unable to recall the specific representations which gave rise to their understanding that they would have a job as long as they performed satisfactorily. See, e.g., RT XII(A) 12, 117 (Kustudia); RT XX 2-3 (Stanford); RT XXIII 153-54 (Neill). Yet the record also revealed significant evidence, in quantity and quality, to support the finding of an implied contract. See excerpts quoted supra at 771-775. Evaluating the strength of opposing evidence is the traditional function of the jury. Here, such evidence was more than sufficient to raise a question whether an implied, “for-cause” relationship existed.
Because the resolution of this close issue likely turned on the inferences to be drawn from the conflicting evidence and the credibility of the witnesses, I find it particularly troubling that the majority has, in effect, usurped the jury’s factfinding function in this case. It is the jury’s function, not ours, to weigh conflicting evidence and judge the credibility of the witnesses. See *777Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1024 (9th Cir.1985), cert. denied, 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986). Moreover, we must assume that the jury believed all of the evidence that was helpful to the plaintiffs and inferred favorable conclusions from the evidence. K Mart, 732 P.2d at 1366. The presence of conflicting evidence does not provide grounds for us to engage in de novo weighing of the evidence, in order to conclude that the jury was precluded from considering the implied contract issue. If anything, such evidence underlines the critical importance of the jury’s role in a case such as this and dictates that the jury verdict stand. Under the appropriate standard of review, I am convinced we should affirm the district court’s conclusion that sufficient evidence existed for submission to the jury of the issue of whether the at-will presumption had been rebutted. Accordingly, I believe the jury’s award for damages for breach of contract should be affirmed.
II.
Because the jury properly decided that the terminations were wrongful, I would not find, as the majority does, that the district court erred in instructing the jury on the intentional infliction of emotional distress claim. The Nevada courts have not addressed the issue of whether a cause of action for intentional infliction of emotional distress exists in the employment termination context. See D’Angelo, 819 P.2d at 211, 219 n. 13. This court is, therefore, free to decide what it believes the Nevada Supreme Court would hold. The absence of a specific Nevada ruling does not, as the majority states, foreclose recovery for intentional infliction of emotional distress in the employment termination context, when the Nevada courts have given no indication that such a cause of action is barred here. See Paul v. Watchtower Bible & Tract Soc’y, 819 F.2d 875, 879 (9th Cir.) (“Federal courts are not precluded from affording relief simply because neither the state Supreme Court nor the state legislature has enunciated a clear rule governing a particular type of controversy.”), cert. denied, 484 U.S. 926, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). I believe the preferable alternative in this case is to certify the issue to the Nevada Supreme Court for its resolution. See, e.g., In re 268 Ltd., 877 F.2d 804, 806 (9th Cir.1989) (certifying to Nevada Supreme Court an unresolved issue regarding state statutory interpretation), certified quest, answered sub nom, Joseph F. Sanson Inv. Co. v. 268 Ltd., 795 P.2d 493, 497 (Nev.1990) (per curiam), answer conformed to, 912 F.2d 469 (9th Cir.1990).
Although I believe that the jury’s finding of an implied contract should be upheld, because I am in the minority on this issue, it would be superfluous in this dissent to reach the questions of whether there was a basis for the bad faith claim or the award of punitive damages, or to address the issues regarding ERISA preemption and the group determination of liability and damages.
Assuming, without necessarily agreeing, that punitive damages should be stricken, I concur with the majority’s conclusion that liquidated damages should be awarded to the ADEA plaintiffs and that the district court did not abuse its discretion in declining to award front pay. With the exception of the reference to the punitive damages and emotional distress awards, issues on which I do not express an opinion, I also agree with the majority’s disposition of the claims of plaintiffs Foltz and Delling.
III.
I am concerned that the majority has misconstrued Nevada law and overlooked important evidence clearly indicating that sufficient evidence was presented to raise a question of fact regarding the existence of an implied contract. This question was properly submitted to the jury. It is particularly in cases like these that we must remember that appellate “courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable. ” *778Sanders v. Parker Drilling Co., 911 F.2d 191, 195-96 (9th Cir.1990) (original emphasis) (quoting Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944)), cert. denied, — U.S. -, 111 S.Ct. 2014, 114 L.Ed.2d 101 (1991). The majority, I fear, easts aside this important principle today.
. In the excerpts that follow, the emphases are mine.
. See 819 P.2d at 210 (“A jury could have concluded that both employer and employee intended to be bound by the terms of the handbook; but the jury could, of course, have concluded otherwise and decided in favor of GEMCO.").
. Vancheri actually held that “general expressions of job longevity and advancement, and the established disciplinary procedure as described in this case, are not, as a matter of law, sufficient to establish a prima facie case rebutting the at-will employment presumption.” Id. 777 P.2d at 370 (emphasis added). This qualifier is significant, because it was unclear in Vancheri whether the disciplinary procedure even applied to the plaintiff, who was in a management position. Id. at 369. It would be inappropriate for us to construe this holding more broadly, to mean that all disciplinary procedures, as a matter of law, are insufficient to rebut the at-will presumption. See, e.g., D’Angelo, 819 P.2d at 212-13 (inclusion of detailed disciplinary procedures in employer handbook supported finding of for-cause relationship).