concurring in part and dissenting in part.
I see the FMLA claim differently from the majority opinion, although I concur in the disposition of claims for breach of an implied-in-fact contract and the covenant of good faith and fair dealing.
Liu never argued in the district court that “mischaracterizing” her leave as personal leave rather than FMLA leave constituted “interference” with her rights to FMLA leave. In any event, Amway *1145granted Liu’s requests for leave, albeit for less time than she wanted. How her leave was labeled could not have made any difference in this case, because she was on authorized leave when she was terminated (November 18, 1998) as a part of a reduction in force. Liu does not dispute the bona fides of the reduction in force. Thus, as the district court saw it (and so do I), Amway could still have terminated Liu even if she had been on leave designated as FMLA leave and regardless of whether she had been on leave through December.
For the same reason, I disagree that reversal is required even if the district court should not have treated Liu’s remaining claims as interrelated discrimination claims based on retaliation — and so subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) — but should instead have considered whether Amway used the taking of (FMLA) leave as a “negative factor” in its decision to terminate Liu under the analysis prescribed by Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th Cir.2001). Liu does not have a substantive right to be compensated or reinstated if she would not otherwise have been employed because her position was eliminated in a reduction in force. But at a minimum, because the parties did not argue the applicability of Bachelder before the district court, nor did they litigate this case on summary judgment using the Bachelder standard, and because they offer no insight on appeal as to how Bachelder plays out on the record adduced, I would remand for the parties and the district court to revisit the issue in light of the standard that we now hold is correct.