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Sanchez v. Children's Hospital and Health Center9/14/2005
stical sampling that is too small or contains data that is irrelevant to the plaintiff's situation. (Guz, supra, 24 Cal.4th at p. 367.) " here alleged numerical favoritism of younger workers arose within an extremely small employee pool, courts have rejected any consequent inference of intentional bias on grounds, among others, that the sample was too miniscule to demonstrate a statistically reliable discriminatory pattern." (Ibid.) This is because "a small statistical sample carries little or no probative force to show discrimination" and "a plaintiff's statistical evidence must focus on eliminating nondiscriminatory explanations for the disparate treatment by showing disparate treatment between comparable individuals." (Fallis v. Kerr-McGee Corp. (10th Cir. 1991) 944 F.2d 743, 746.)
Here, Sanchez does not identify probative statistical evidence. Sanchez's statistical evidence consists of anecdotal accounts of 10 older Children's employees in various departments who have been terminated by Children's since 1993. Two of the employees were terminated in 1993, one in 1996, one in 1997, and one in 1998. Four other employees - all of whom are registered nurses - were offered other jobs at Children's but declined them. These accounts have no probative value because Sanchez does not put them in the required context. Most significantly, Sanchez identifies 10 specific older employees terminated over the course of a decade, but we are unable to tell how many younger employees also met the same fate over that same time period. Thus, Sanchez has not shown that 10 older employees terminated over the course of a decade is statistically significant. For that reason the evidence of those terminations does not create a triable issue of material fact as to whether Children's intentionally discriminated against Sanchez based on her age. (See Simpson v. Midland-Ross Corp. (6th Cir. 1987) 823 F.2d 937, 943 [plaintiff's figures regarding termination of 17 older employees was not probative of discrimination where plaintiff "did not even attempt to place his figures in a relevant context so as to make them meaningful" in that the court had "no idea whether people constituted a significant percentage of [the employer's] workforce" and plaintiff did not "compar employee discharges from the protected group and from a younger group"]; Radue v. Kimberly-Clark Corp. (7th Cir. 2000) 219 F.3d 612, 616-617 [statistical data offered by plaintiff did not create a triable issue of fact on age discrimination because it involved a different part of the company and information from a prior reduction in force and did not rule out other explanations for the statistics].)
Second, we consider Sanchez's argument that she has created a triable issue of fact by showing that a much younger worker was hired from outside the company to take over her position and other roles that Sanchez could have been reassigned to rather than terminated. Sanchez points out that nine months after she was terminated, Ortega - who is in her 20's - was hired to perform Sanchez's duties or those duties that Children's could have reassigned to her. However, as we have explained, the position that Ortega was hired for was not the position that Sanchez held, nor could Sanchez have been reassigned to that position rather than terminated. The undisputed evidence is that Ortega's position did not exist until nine months after Sanchez left, when seven functions were consolidated under a single newly appointed director and the new director hired a secretary to assist her. The job of secretary to a newly appointed department director could not have been offered to Sanchez in June 2002 because it did not exist. (Rose v. Wells Fargo & Co., supra, 902 F.2d 1417, 1422 [the
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