VENUTI v. MAY DEPARTMENT STORES CO

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Court of Appeal, Second District, Division 3, California.

Selma VENUTI, Petitioner, v. The SUPERIOR COURT of the State of California, for the County of Los Angeles, Respondent. The MAY DEPARTMENT STORES CO., Real Party in Interest.

Civ. No. B056790.

Decided: August 05, 1991

Jeffrey L. Melczer, Los Angeles, for petitioner. No appearance for respondent. Shield & Smith, Nicholas W. Hornberger, Jeanne L. Zimmer and Jennifer D. Helsel, Los Angeles, for real party in interest.

Petitioner Selma Venuti (Venuti) seeks a writ of mandate directing respondent superior court to vacate its ruling granting summary adjudication on her third cause of action, tortious discharge based on age discrimination, in favor of defendant and real party in interest, The May Department Stores Co. (May Co.).

The issues are:  (1) whether May Co.'s replacement of Venuti, a 60–year–old employee at the time of termination, with a 41–year–old individual and thus a person within the protected class, i.e. over the age of 40, precludes Venuti as a matter of law from maintaining a claim for age discrimination;  (2) whether age discrimination contravenes a fundamental public policy so as to give rise to a cause of action for tortious discharge;  and (3) whether the replacement employee's qualifications are an element of a prima facie case for discriminatory discharge.1

We conclude replacement by a substantially younger employee within the protected class supports a prima facie case of age discrimination.   Further, age-based discriminatory discharge is violative of California public policy as expressed in Government Code section 12941, so as to give rise to a tort action under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330.   Also, a discharged employee is not required to show the replacement employee had equal or inferior qualifications in order to make out a prima facie case of discriminatory discharge.   We therefore grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Venuti was born on December 8, 1927.   She was employed at May Co. from 1968 to 1988, and held the title of assistant general manager at the Panorama City store from 1985 to 1988.   She was responsible for the operation of said store.   She was terminated on February 29, 1988, and was replaced by James Hanaford, who was 41 at the time he assumed the assistant general manager position.   After obtaining a right-to-sue letter from the Department of Fair Employment and Housing on her age and sex discrimination claims, Venuti pursued a complaint for damages against May Co.2

Her operative fourth amended complaint, which we refer to for the purpose of framing the issues on summary judgment (University of So. Cal. v. Weiss (1962) 208 Cal.App.2d 759, 766, 25 Cal.Rptr. 475), pled (1) breach of an employment contract;  (2) breach of the implied covenant of good faith and fair dealing;  (3) tortious discharge in violation of public policy based on age discrimination;  and (4) tortious discharge based on sex discrimination.

May Co. moved for summary judgment as to all causes of action.   With respect to the age claim, the parties' respective separate statements of undisputed material facts showed the following to be uncontroverted:  Venuti was terminated involuntarily;  she was 60 years old at the time she was discharged;  and, her replacement was a 41 year old.

Relying on Levy v. Regents of University of California (1988) 199 Cal.App.3d 1334, 245 Cal.Rptr. 576, May Co. argued the age claim was barred as a matter of law because Venuti's replacement was a 41–year–old individual who, like Venuti, was within the protected class.   May Co. further contended Venuti had failed to comply with company policy regarding deliveries, and because her job performance was unsatisfactory, she could not state a prima facie case of age discrimination.

Venuti's opposition papers quoted federal decisions which held the replacement need not be a person younger than 40.   In addition, she submitted she was in complete compliance with the home delivery policy put in place and approved by her superiors.   In support of her position, she cited, inter alia, the deposition testimony of Ronald Chovance, Venuti's former supervisor at Panorama City, who stated:  When that store was opened, it was “not a policy,” but employees were encouraged to deliver items to customers' homes on their off hours and receive a cash payment for delivery.

The matter was heard on February 27, 1991.   The trial court found triable issues existed as to whether the employment contract was at-will, and whether there was good cause for termination.   It granted summary adjudication solely as to the third cause of action for tortious discharge in violation of the public policy against age discrimination, ruling that because the “[r]eplacement person was within the class of the plaintiff[,] [t]here's no cause of action.”

Venuti sought review of the ruling by way of the instant petition for writ of mandate.   Due to the significant questions presented, we directed the issuance of an alternative writ.

CONTENTIONS

Venuti contends the trial court misconstrued the law because a prima facie case of age discrimination does not require replacement by someone below the age of 40.

In addition, because the complaint pleads tortious discharge in violation of the public policy against age discrimination, it is incumbent upon us to examine whether the policy against age bias in employment is a fundamental public policy in California for purposes of this tort theory.  (See Code Civ.Proc., § 430.80.)   Further, because we are called upon to determine whether Venuti offered sufficient facts to establish a prima facie case, we address whether a hired replacement's qualifications are an element of a prima facie case for discriminatory discharge.3

DISCUSSION

I. Third cause of action alleging a tortious discharge is well pled because age discrimination in employment contravenes California public policy.

 It is settled that sex discrimination in employment violates the longstanding public policy proclaimed in California Constitution, article I, section 8, so as to give rise to a cause of action for tortious discharge in violation of public policy.  (Rojo v. Kliger, supra, 52 Cal.3d at pp. 88–91, 276 Cal.Rptr. 130, 801 P.2d 373.) 4

In contrast, because the prohibition against age discrimination in employment is of recent statutory origin, a question arises as to whether such discrimination implicates a fundamental public policy concern, the basis of a cause of action for tortious discharge.

Former Labor Code section 1420.1, added in 1972 5 and superseded by Government Code section 12941, “created a new right for plaintiffs over 40” who allegedly were discriminated against in employment because of their age.   (Strauss v. A.L. Randall Co. (1983) 144 Cal.App.3d 514, 518, 194 Cal.Rptr. 520.)   This right is not declaratory of preexisting common law doctrine but is the product of “ ‘legislative innovation, creating new limitations on an employer's right to hire, promote or discharge its employees.’  (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 490 [156 Cal.Rptr. 14, 595 P.2d 592].)”  (Ibid.)

Despite the relatively recent recognition of the policy against age bias, under the principles set forth in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373, and Rojo v. Kliger, supra, 52 Cal.3d 65, 276 Cal.Rptr. 130, 801 P.2d 373, it would appear age discrimination in employment, like sex discrimination, gives rise to a cause of action for wrongful discharge in violation of a fundamental public policy.

In Foley, the Supreme Court expressly left undecided “whether a tort action alleging a breach of public policy under Tameny [v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330] may be based only on policies derived from a statute or constitutional provision or whether nonlegislative sources [also] may provide the basis for such a claim.”   (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 669, 254 Cal.Rptr. 211, 765 P.2d 373.)   However, “[e]ven where ․ a statutory touchstone has been asserted, we must still inquire whether the discharge is against public policy and affects a duty which inures to the benefit of the public at large rather than to a particular employer or employee.   For example, many statutes simply regulate private conduct between individuals, or impose requirements whose fulfillment does not implicate fundamental public policy concerns.   Regardless of whether the existence of a statutory or constitutional link is required under Tameny, disparagement of a basic public policy must be alleged, ․” (Ibid., first italics ours.)

The Foley court explained a public policy is implicated where the “public interest at stake [is] invariably one which could not properly be circumvented by agreement of the parties.”  (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 670, fn. 12, 254 Cal.Rptr. 211, 765 P.2d 373.)   In Foley, an employee informed his employer that his supervisor was under investigation by the Federal Bureau of Investigation for embezzlement.   Foley held the employee could not state a cause of action for wrongful discharge in violation of public policy because an employee's duty to disclose information to an employer serves only the private interest of the employer.   Nothing in California's public policy would have barred the parties from agreeing the employee was not to inform the employer of any adverse information the employee learned about a fellow employee's background.  (Id., at pp. 670–671, fn. 12, 254 Cal.Rptr. 211, 765 P.2d 373.)

Here, we find Government Code section 12941, prohibiting employment discrimination against individuals over the age of 40, embodies a fundamental public policy concern because California's broad policy against employment discrimination “ ‘inures to the benefit of the public at large rather than to a particular employer or employee.’  [Citation.]  ․ As [Government Code] section 12920 states:  ‘It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment ․ foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general.’ ”  (Rojo v. Kliger, supra, 52 Cal.3d at p. 90, 276 Cal.Rptr. 130, 801 P.2d 373, italics added.)

In sum, because the public policy against age discrimination (1) derives from a legislative source and (2) inures to the benefit of the public at large rather than to a particular employee (Foley, supra, 47 Cal.3d at pp. 669–671, 254 Cal.Rptr. 211, 765 P.2d 373;  Rojo, supra, 52 Cal.3d at pp. 88–91, 276 Cal.Rptr. 130, 801 P.2d 373), we conclude age-based discriminatory discharge gives rise to a cause of action for tortious discharge in contravention of public policy.6 , 7

II. Trial court erred in granting summary judgment for May Co. on Venuti's tortious discharge/age claim.

1. Standard of appellate review.

 The purpose of the summary judgment procedure is not to try the issues but merely to discover, through the medium of affidavits and other evidence, whether there are issues to be tried and whether the parties possess evidence which demands the analysis of trial.  (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468, 33 Cal.Rptr. 661;  Orser v. George (1967) 252 Cal.App.2d 660, 669, 60 Cal.Rptr. 708.)

 A defendant moving for summary judgment has the burden of establishing a complete defense or negating each of the plaintiff's theories and establishing the action is without merit.  (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 666, 150 Cal.Rptr. 384;  Bonus–Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442, 186 Cal.Rptr. 357.)

 Because the trial court's ruling on a motion for summary judgment is one of law based upon the papers presented, the appellate court makes an independent determination of their construction and effect.  (Larsen v. Johannes (1970) 7 Cal.App.3d 491, 496, 86 Cal.Rptr. 744;  Bonus–Built, Inc. v. United Grocers, Ltd., supra, 136 Cal.App.3d at p. 442, 186 Cal.Rptr. 357;  Hayman v. Block (1986) 176 Cal.App.3d 629, 640, 222 Cal.Rptr. 293.)

2. General principles.

Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), as well as the federal Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 621 et seq.), provide guidance for our analysis of age claims under the FEHA.  (Levy v. Regents of University of California, supra, 199 Cal.App.3d at p. 1343, 245 Cal.Rptr. 576;  Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1399, 245 Cal.Rptr. 606.)

The basic allocation of burdens and order of presentation of proof in a trial of a Title VII case alleging discriminatory treatment are set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] and Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248 [101 S.Ct. 1089, 67 L.Ed.2d 207].

First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination.  (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at pp. 252–253, 101 S.Ct. at p. 1093.)   The prima facie case raises an inference of discrimination because it is presumed the employer's acts, e.g., the adverse hiring or firing decision, if unexplained, are more likely than not to be based on the consideration of impermissible factors.  (Id., at p. 254, 101 S.Ct. at p. 1094.)

If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment decision.  (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 253, 101 S.Ct. at p. 1093.)   If the defendant carries this burden, the presumption raised by the prima facie case is rebutted.  (Id., at p. 255, 101 S.Ct. at p. 1094.)

The plaintiff then must prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were pretextual.  (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 253, 101 S.Ct. at p. 1093.)   The plaintiff may succeed either by persuading the trier of fact a discriminatory design more likely motivated the employer, or by showing that the employer's proffered explanation is unworthy of belief.  (Id., at p. 256, 101 S.Ct. at p. 1095.)

3. Prima facie case of age-based discriminatory discharge, to resist summary judgment, requires replacement by substantially younger employee.

To resist an employer's motion for summary judgment, the plaintiff must “offer facts sufficient to establish a prima facie case.”  (Levy v. Regents of University of California, supra, 199 Cal.App.3d at p. 1343, 245 Cal.Rptr. 576;  compare Lindahl v. Air France (9th Cir.1991) 930 F.2d 1434, 1437.)

a. Prima facie case does not require showing by plaintiff that replacement employee had equal or inferior qualifications.

 In McDonnell Douglas, the Supreme Court set forth a four part test for determining whether a Title VII claimant has established a prima facie case for racial discrimination in hiring.  (McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p. 802, 93 S.Ct. at p. 1824.)   This may be done by showing “(i) that [the plaintiff] belongs to a racial minority;  (ii) that [s/he] applied and was qualified for a job for which the employer was seeking applicants;  (iii) that, despite [the plaintiff's] qualifications, [s/he] was rejected;  and (iv) that, after [the] rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.  [Fn. omitted.]”  (Ibid.)

A formula based on McDonnell Douglas, which involved hiring practices, “must be adapted to the facts of each case.  [Citation.]   In determining whether a prima facie case has been established, the overriding inquiry is whether the evidence is sufficient to support an inference of discrimination.  [Citation.]   In an ADEA action, that may be accomplished by producing evidence that identifies age as the ‘likely reason’ for an adverse employment decision.  [Citation.]”  (Douglas v. Anderson (9th Cir.1981) 656 F.2d 528, 532.)

Douglas v. Anderson modified the McDonnell Douglas elements to apply to an ADEA action based on discriminatory discharge.   In doing so, it retained the element of the competing employee's qualifications, without making a distinction between hiring and firing fact situations.   Its formulation is as follows:  “[T]he plaintiff (i) was a member of the protected class, (ii) was performing [the] job in a satisfactory manner, (iii) was discharged, and (iv) was replaced by a substantially younger employee with equal or inferior qualifications.”  (Douglas v. Anderson, supra, 656 F.2d at p. 533, italics added;  accord Palmer v. United States (9th Cir.1986) 794 F.2d 534, 537.)

Douglas v. Anderson's adaptation of the McDonnell Douglas formula to a case of age discrimination in firing obligates the plaintiff to show the replacement employee had “equal or inferior qualifications,” but it provides no accompanying rationale or justification for retaining this requirement.   (Douglas v. Anderson, supra, 656 F.2d at p. 533.)   This language inappropriately would permit May Co., or any defendant similarly situated, to defend against an age-related discharge claim on the ground a replacement had superior qualifications.

We conclude Douglas v. Anderson's modification of McDonnell Douglas fails to take into consideration the patently different fact situations of hiring and firing.   Obviously, in the hiring context, the relative qualifications of the various applicants are highly relevant.   Thus, in a discriminatory hiring case, the plaintiff must show adequate qualifications for the job in the first instance, and that after rejecting the plaintiff, the employer continued to seek applicants with the plaintiff's similar qualifications.  (McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p. 802, 93 S.Ct. at p. 1824.)

However, unlike a discriminatory hiring case, which requires a showing the plaintiff was a qualified applicant for the position (McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p. 802, 93 S.Ct. at p. 1824), a discriminatory firing case instead necessitates a showing the plaintiff was performing the job in a satisfactory manner (Douglas v. Anderson, supra, 656 F.2d at p. 533).   Obviously, if an employee were not performing in a satisfactory manner, the employer would have good cause for termination, making the replacement's qualifications irrelevant.   If the employee were performing satisfactorily and were discharged, the successor's credentials similarly would be of no consequence.

Accordingly, replacement qualifications are not a proper consideration in the termination context and thus are not an element in establishing a prima facie case for discriminatory discharge.

b. Prima facie case requires replacement by substantially younger employee, not necessarily someone outside the protected class.

 As indicated, the Ninth Circuit in Douglas v. Anderson requires the plaintiff to show s/he “(i) was a member of the protected class, (ii) was performing [the] job in a satisfactory manner, (iii) was discharged, and (iv) was replaced by a substantially younger employee․”  (Douglas v. Anderson, supra, 656 F.2d at p. 533, italics added;  accord Palmer v. United States, supra, 794 F.2d at p. 537.)  Douglas v. Anderson utilized a “substantially younger” test and did not require the replacement to be a person outside the protected class.  (Douglas, supra, 656 F.2d at p. 532, fn. 4.)

Similarly, Elliott v. Group Medical & Surgical Service (5th Cir.1983) 714 F.2d 556, certiorari denied, does not require the replacement to be a person outside the protected class.  Elliott held the fourth element could be satisfied by proof of replacement by someone outside the protected class or by someone younger or by other proof the discharge was because of age.  (Id., at p. 562.)

Consistent therewith, Maxfield v. Sinclair Intern. (3d Cir.1985) 766 F.2d 788, 792, certiorari denied, observed:  “Policy considerations support holding that a prima facie case may be established through proof of replacement by a younger person.   If no intra-age group protection were provided by the ADEA, it would be of virtually no use to persons at the upper ages of the protected class whose jobs require experience since even an employer with clear anti-age animus would rarely replace them with someone under 40.”

It follows that “[t]he probative value of the age of the replacement as evidence of discrimination will depend on the circumstances of the case.   Although replacement by someone younger, without more, will not give rise to an inference of age discrimination, ․ a substantial difference in the ages may be circumstantial evidence that gives rise to that inference.   See Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435 (11th Cir.1985).   Accord Loeb v. Textron, Inc., 600 F.2d 1003, 1013, n. 9 (1st Cir.1979).”  (Maxfield v. Sinclair Intern., supra, 766 F.2d at pp. 792–793;  compare Phipps v. Gary Drilling Co., Inc. (E.D.Cal.1989) 722 F.Supp. 615, 622.)

Maxfield rejected as frivolous the contention its interpretation would invite “ ‘claims for discrimination under [the ADEA] by 45 year old employees replaced by 48 year olds, ․’ ” (Maxfield v. Sinclair Intern., supra, 766 F.2d at p. 793.)  Maxfield also discounted the concern that replacement by a slightly younger employee would give rise to an age claim because in such cases, the trial court likely would find the evidence insufficient to permit an inference of discrimination.  (Ibid.)

Maxfield concluded “an ADEA plaintiff may establish the fourth element of the McDonnell Douglas test for a prima facie case by showing that s/he was replaced by a person sufficiently younger to permit an inference of age discrimination.  [Fn. omitted.]  [Plaintiff]'s replacement by an employee more than 20 years younger was sufficient to satisfy this test.”  (Maxfield v. Sinclair Intern., supra, 766 F.2d at p. 793;  see Haydon v. Rand Corp. (9th Cir.1979) 605 F.2d 453, 454, fn. 1;  Sutton v. Atlantic Richfield Co. (9th Cir.1981) 646 F.2d 407, 412.)

(1) Levy's restrictive bright-line test is not compelled by federal law.

Levy v. Regents of University of California, supra, 199 Cal.App.3d 1334, 245 Cal.Rptr. 576, on which the trial court apparently based its decision, does not lead us to conclude a plaintiff cannot maintain an age claim if the plaintiff's replacement belongs to the protected class.8

The Levy court did not purport to alter the showing required of an age claimant under federal law, and it simply relied on the elements derived from the United State Supreme Court's decision in McDonnell Douglas.   In summarizing those elements, Levy inaccurately stated, inter alia:  “Under the ADEA, a plaintiff must demonstrate that ․ another person of similar qualifications generally outside the protected age group, received the particular position, ․” (Levy v. Regents of University of California, supra, 199 Cal.App.3d at p. 1343, 245 Cal.Rptr. 576, italics added.) 9  The trial court apparently read this language in Levy as creating a per se rule that the replacement must be outside the protected class.

However, we find the rationale expressed by the federal appellate court in Maxfield v. Sinclair Intern., supra, 766 F.2d at page 792, to be more convincing and respectfully disagree with Levy's oversimplified bright-line approach.  Levy would permit a discriminating employer to insulate itself from an age claim by hiring a replacement who is over the age of 40, but who may be a full generation younger than his or her predecessor.

We conclude replacement by a substantially younger employee within the protected group will support a prima facie case of discriminatory discharge.

4. Venuti established a prima facie case for tortious discharge based on age discrimination and raised a triable issue as to whether May Co.'s proffered reason was pretextual.

 As indicated, a prima facie case of age-based discriminatory discharge requires the plaintiff (1) was a member of the protected class, (2) was performing in a satisfactory manner, (3) was discharged and (4) was replaced by a substantially younger employee.  (McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p. 802, 93 S.Ct. at p. 1824;  Douglas v. Anderson, supra, 656 F.2d at pp. 532–533, italics added.)

Based on the evidence before us, we conclude Venuti established a prima facie case of age-based discriminatory discharge.   It is undisputed she belongs to the protected class, was discharged, and was replaced by a substantially younger employee.   Further, on the issue of whether Venuti, a 20–year employee, was performing satisfactorily, Ronald Chovance's testimony controverted May Co.'s claim it properly had terminated her for violating its delivery policy.10

May Co.'s assertion Venuti's performance was unsatisfactory has no bearing on whether Venuti established a prima facie case.   As the trial court found with respect to the other causes of action, Venuti's job performance presents a triable issue as to whether May Co. had good cause to terminate her.   Thus, good cause is an issue for the trier of fact—the trial court's ruling is not sustainable on the ground May Co. had good cause to discharge Venuti.

CONCLUSION

Age-based discriminatory discharge contravenes the fundamental public policy of California as embodied in Government Code section 12941 and gives rise to a cause of action for tortious discharge.

Replacement by a substantially younger employee within the protected class supports a prima facie case of age discrimination.

The prima facie case requires the plaintiff to have been performing in a satisfactory manner, but the replacement's qualifications are not an element of a prima facie case for discriminatory discharge.

DISPOSITION

The alternative writ is discharged.   Let a peremptory writ issue directing the trial court to vacate its ruling with respect to Venuti's third cause of action.

FOOTNOTES

1.   Government Code section 12941, set forth within the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.), states in relevant part:  “(a) It is an unlawful employment practice for an employer to refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote, any individual over the age of 40 on the ground of age, except in cases where the law compels or provides for such action.”

2.   However, there is no exhaustion requirement if a plaintiff elects to sue for tortious discharge in violation of public policy, rather than pursuing a statutory cause of action under the FEHA.  (Rojo v. Kliger (1990) 52 Cal.3d 65, 88, 276 Cal.Rptr. 130, 801 P.2d 373.)

3.   Counsel were afforded the opportunity to brief these additional issues.

4.   California Constitution, article I, section 8, states:  “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”Former article XX, section 18 of the California Constitution, the forerunner to article I, section 8, was adopted by the People in 1879.   It provided:  “No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation, or profession.”

5.   Statutes 1972, chapter 1144, section 1.

6.   At oral argument, May Co.'s counsel conceded age-based discriminatory discharge violates the fundamental public policy of this state.

7.   Our decision does not enlarge the nature of damages which are recoverable for age discrimination.   In a superior court action under the FEHA, a litigant may obtain compensatory and punitive damages.  (Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 45, 276 Cal.Rptr. 114, 801 P.2d 357.)   Thus, irrespective of whether a plaintiff elects to sue directly under Government Code section 12941, or brings a common law action for tortious discharge in violation of public policy based on age discrimination, compensatory and punitive damages may be had.

8.   In Levy, a 43–year–old individual, also within the protected class, obtained a deputy director position sought by the plaintiff.   (Levy v. Regents of University of California, supra, 199 Cal.App.3d at p. 1341, 1347, 245 Cal.Rptr. 576.)   The reviewing court held that in addition to failing to establish he had effectively applied for the deputy director position, the plaintiff had failed to show he was qualified and that another person of similar qualifications outside the protected age group received the position.  (Id., at p. 1347, 245 Cal.Rptr. 576.)

9.   See Fugate v. Allied Corp. (N.D.Ill.1984) 582 F.Supp. 780, cited without discussion by Levy v. Regents of University of California, supra, 199 Cal.App.3d at page 1344, 245 Cal.Rptr. 576.  Fugate observed:  “ ‘There is no logical reason why an inference of discrimination cannot be drawn when the replacement is younger but not outside the protected group, particularly in view of the fact that the protected group spans two generations.’  [Citation.]”  (Fugate, supra, at pp. 783–784.)

10.   Because Venuti raised a triable issue as to whether May Co.'s proffered reason was pretextual, it is unnecessary to address whether a plaintiff may defeat summary judgment merely by making out a prima facie case.  (See Levy v. Regents of University of California, supra, 199 Cal.App.3d at p. 1343, 245 Cal.Rptr. 576;  Lindahl v. Air France, supra, 930 F.2d at p. 1437.)

KLEIN, Presiding Justice.

CROSKEY and HINZ, JJ., concur.

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