Unpublished Disposition, 857 F.2d 1477 (9th Cir. 1988)

MEMORANDUM^** 

Davis appeals from a partial summary judgment of his Age Discrimination in Employment Act (ADEA) claim and from a judgment after a bench trial on his state claims for breach of contract and wrongful termination. The district court had jurisdiction under 29 U.S.C. § 621 et seq. and we have jurisdiction pursuant to 28 U.S.C. §§ 1291, 1294(1). We affirm.

Davis contends that the district court improperly granted partial summary judgment on the ADEA claim because it erroneously held that the 1984 amendment to ADEA does not apply retroactively to United States citizens employed abroad by American corporations in October 1979. We do not reach that issue because even if the ADEA did apply, as a factual matter, Davis would not prevail.

In Cancellier v. Federated Department Stores, 672 F.2d 1312, 1316 (9th Cir.), cert. denied, 459 U.S. 859 (1982), we stated that a plaintiff must show more than that age discrimination was present or that it "figured in" the decision to fire him; rather, the plaintiff must show that age "made a difference" between termination or retention. The district court, citing the Cancellier decision, found that although age did "figure in" the decision to fire Davis, age discrimination did not "make a difference" in the decision to fire him. The court also stated that age was not "a determinative factor" in Davis's termination. This clearly represents a factual finding that Davis did not meet the "but for" requirement of Cancellier. Id. at 1316. That finding, based as it is on evidence that the termination was motivated by good faith concerns about Davis's qualifications and personality, is not clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). Thus, even if the ADEA claim could be asserted, Davis could not prevail.

Davis's state claims fail if he was properly dismissed under the contract he had with Air Base Constructors. Under the contract, Davis could be terminated if, in the "sole judgment" of the General Manager, Davis was unqualified for his job. The district court found that the General Manager had a reasoned belief that Davis could not do the jobs assigned to him. This finding is not clearly erroneous. Therefore, the district judge did not err in holding that Davis's termination was consistent with the "sole judgment" language of the contract. The cause language of the contract at 2. (a) (2) governs what the employer may have to do for an employee after termination--not the termination decision itself.

We conclude that Davis was not improperly denied a jury trial. Nothing in the record substantiates Davis's claim that a jury was properly demanded at the time the action was originally filed pursuant to Fed. R. Civ. P. 38(b). The amended complaint did not renew a right to a jury because the amendments did not raise new issues; they merely asserted new theories of recovery. Las Vegas Sun, Inc. v. Summa Corp., 610 F.2d 614, 620 (9th Cir. 1979), cert. denied, 447 U.S. 906 (1980); Trixler Brokerage Co. v. Ralston Purina Co., 505 F.2d 1045, 1050 (9th Cir. 1974).

On the other arguments raised, we decide against Davis for the reasons stated by the district court.

AFFIRMED.