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Sanchez v. Children's Hospital and Health Center9/14/2005
retained her retirement benefits if she found a new position at Children's within two years of her termination. Sanchez did not attempt to take advantage of this policy because she stopped applying for a new positions within weeks of her termination. She presents no evidence sufficient to establish that it would have been futile for her to continue applying or that Children's failed to hire her based on her age for any of the positions that she did seek.
Based on the above analysis, we conclude that Sanchez has not identified evidence that would allow a rational trier of fact to conclude that Children's intentionally discriminated against her on the basis of age.
II. Wrongful Termination
Sanchez premises her claim for wrongful termination in violation of public policy on her FEHA claim. Sanchez's complaint alleges that her "termination was in violation of . . . Government Code [section] 12940 et seq. [i.e., FEHA] and amounts to a wrongful termination in violation of the public policy of the State of California." An employer's unlawful age discrimination in violation of FEHA may provide the basis for the common law tort of wrongful discharge in violation of public policy. (See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889.)
Apart from her claim for age discrimination under FEHA, Sanchez presents no other basis for her wrongful termination claim. Because Sanchez cannot prevail on her age discrimination claim, we conclude that Sanchez's wrongful termination claim also fails.
III. Claims for Intentional and Negligent Infliction of Emotional Distress
Sanchez also bases her claims for emotional distress on her allegation of unlawful age discrimination. For example, Sanchez alleges that Children's "negligently and/or willfully violated the statutory standards set forth in Government Code [section] 12940, et seq.," which was "the direct, legal and proximate cause of the severe and serious emotional distress of Sanchez." Sanchez also argues on appeal that all of the circumstances of her case, taken together, evidence "outrageous conduct which should not be tolerated in a decent society."
Having concluded that Sanchez cannot prevail on her age discrimination claim, and having reviewed the circumstances of Sanchez's termination in which Children's followed its standard procedure for reduction in force terminations, including providing assistance to Sanchez in trying to obtain a new internal position, we conclude that Sanchez has not identified any evidence that would create a triable issue of material fact on the claims of negligent and intentional infliction of emotional distress.
DISPOSITION
The judgment is affirmed. Children's is entitled to its costs on appeal.
WE CONCUR: BENKE, Acting P. J., AARON, J.
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