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Sanchez v. Children's Hospital and Health Center9/14/2005
fact that many of the discharged employee's responsibilities were eventually assumed by a younger co-worker did not show disparate treatment where that did not occur until six or seven months after the employee's discharge and was due to the employer's reorganization]; Simpson v. Midland-Ross Corp., supra, 823 F.2d 937, 941 [plaintiff's age discrimination claim was "substantially weaken " by the fact that plaintiff was not replaced by a younger employee, following a reduction in force, until several months after plaintiff's discharge].) We also find it significant that Sanchez could have applied for the position that Ortega obtained, which was publicly posted, but she did not do so. Thus, it is possible that Sanchez, if she had applied, would have been hired instead of Ortega. This fact further weakens Sanchez's attempt to create an inference of discrimination by pointing to the fact that Ortega was hired to perform some of the roles that Sanchez had performed or could have been assigned to nine months earlier.
Third, we examine whether Sanchez identifies a triable issue of fact by relying on evidence that she was not hired for any of the Children's positions she applied for. We conclude that Sanchez has identified no evidence that would tend to prove that Children's intended to discriminate against her in her search for a new position. Under the circumstances of this case, where (1) Children's granted Sanchez an interview for two of the positions, (2) Children's has explained why Sanchez was not hired for at least some of the positions she applied for, (3) Sanchez admits that she quickly gave up seeking a new position, and (4) at least one of the positions was given to another older internal candidate, no inference of age discrimination arises. (See Rose v. Wells Fargo & Co., supra, 902 F.2d 1417, 1422-1423 [Although an employer has no duty to try to reassign an employee terminated due to a reduction in force, if the employer voluntarily assumed such a duty "an inference of discrimination is raised where the terminated employee 'can show that others not in the protected class were treated more favorably'"]; Guz, supra, 24 Cal.4th at p. 365 ["Nor is there any evidence or inference of [the employer's] bad faith effort to prevent or impede [the plaintiff's] fair consideration for suitable [internal] positions. For all that appears, any such lapse arose, as much as anything, from [plaintiff's] own inaction"].)
Finally, we examine whether Sanchez created a triable issue of material fact on the issue of discrimination by showing that Children's refused to grant her an exception to the policy governing the time in service required for the vesting of retirement benefits. Although Sanchez does not fully elaborate, we understand her to be arguing that Children's failure to grant her an exception to the normal retirement benefit vesting rules tends to prove that Children's terminated her based on age so that they would not have to pay her soon-to-vest retirement benefits. We reject this argument. Sanchez has not presented us with a meaningful factual context showing what the policy is or how it is normally applied. Without that context, the mere fact that Children's decided not to grant her an exception lacks any significant probative value on the issue of discriminatory intent. Without special circumstances showing that Children's treated Sanchez differently from other employees, Children's adherence to its standard policy for the vesting of retirement benefits does not create an inference of discriminatory intent as to Sanchez's termination.
We note that Sanchez's argument that Children's terminated her to avoid contributing to her retirement fund is weakened by the fact that she could have
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