Williams v. Fox Networks Engineers and Operations CA2/4 ( 2023 )

Filed 1/20/23 Williams v. Fox Networks Engineers and Operations CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
PATRICK WILLIAMS, B309868
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV05366)
MODIFICATION ORDER
FOX NETWORKS [NO CHANGE IN
ENGINEERS AND JUDGMENT]
OPERATIONS et al.,
Defendants and
Respondents.
COURT:
It is ordered that the opinion filed herein on December 21,
2022 be modified as follows:
1. In the sixth paragraph under the heading “Facts and
Procedural History” and the subheading “I. Background,” the
first sentence should be replaced with the following language,
with the footnote remaining unchanged: At the time, Fox
employed seven regular finishing editors working an average of
four or five shifts per week—Williams, Thomas Stock-Hendel,[fn]
J.T, D.F., P.W., D.Y., and R.C.
2. In the same paragraph, the fourth and fifth sentences
should be replaced with the following language: As of October
2017, these fill-in/part-time editors were T.R. and D.W., who
were 54 and 45 years old, respectively. Williams was 63 years
old, the third oldest of the finishing editors after Stock-Hendel
(66) and J.T. (64).
3. In the following paragraph, the second and third
sentences should be replaced with the following language, with
the footnote remaining unchanged: They selected four regular
editors, reducing P.W. and J.T. from five to four shifts per week,
and Williams and Stock-Hendel from four to an average of two
and a half shifts per week.[fn] Fox also reduced the shifts of
part-time editor T.R. from one to zero, and increased the shifts of
D.W. from one to two.
4. In the final paragraph under the heading “Facts and
Procedural History” and the subheading “I. Background,” the
second sentence should be replaced with the following language:
As of 2019, Fox continued to employ J.T., D.F., P.W., D.Y., and
R.C. as regular editors working four to five shifts per week, and
T.R. and D.W. as part-time or fill-in editors.
5. In the seventh paragraph under the heading “Facts and
Procedural History” and the subheadings “III. Summary
2
Judgment,” and “A. Fox’s Motion,” the proper name at the
beginning of the second sentence should be replaced with the
initials “D.W.” The proper name at the beginning of the fourth
sentence should be replaced with the initials “D.Y.” The proper
name at the beginning of the fifth sentence should be replaced
with the initials “P.W.” The proper name at the beginning of the
seventh sentence should be replaced with the initials “R.C.”
6. In the following paragraph, the second sentence should
be replaced with the following language: He believed that he,
Stock-Hendel, and P.W. were “really good” editors, because they
would “take the extra time to make sure [a promo] looked as good
as it possibly could.”
7. In the second paragraph under the heading “Facts and
Procedural History” and the subheadings “III. Summary
Judgment,” and “B. Williams’s Opposition,” the last sentence
should be replaced with the following language: Williams also
declared that at “various times during the last few years I was at
Fox,” he heard DiPietro state that P.W. “was the slowest
finishing editor.”
8. In the sixth paragraph under the heading “Facts and
Procedural History” and the subheadings “III. Summary
Judgment,” and “B. Williams’s Opposition,” the first sentence
should be replaced with the following language: Williams also
pointed to testimony by fill-in editor D.W. in 2019 (then age 47)
that over the past year, he worked two shifts a week.
9. In the third paragraph under the heading “Facts and
Procedural History” and the subheadings “III. Summary
Judgment,” and “D. Ruling,” the third and fourth sentences
should be replaced with the following language: The court noted
3
that Williams’s evidence showed that D.W., a younger, fill-in
finishing editor, was regularly scheduled to work two days per
week, the same number of shifts assigned to J.T., who was about
the same age as Williams. Although Williams claimed that D.W.
received up to five shifts per week, the court found that this
occurred only when he was filling in for absent editors, and that
Williams “also would have been considered for finishing editor
work on a fill-in basis” going forward.
10. In the second paragraph under the heading
“Discussion” and the subheadings “II. Analysis,” and “A. Ruling
on Objections,” the bracketed proper name in the first sentence
should be replaced with the initials “P.W.” In the fourth
paragraph of the same section, the same proper name should be
replaced with the initials “P.W.”
11. In the second paragraph under the heading
“Discussion” and the subheadings “II. Analysis,” and “B. No
Triable Issue of Pretext,” the third proper name in parentheses
should be replaced with the initials “J.T.”
12. In the eighth paragraph under the heading
“Discussion” and the subheadings “II. Analysis,” and “B. No
Triable Issue of Pretext,” the fourth and fifth sentences should be
replaced with the following language: At that time, the evidence
shows that Fox increased the number of shifts for one of the fill-
in editors, D.W. (age 45), from one to two per week, but also cut
the same number of shifts from the other fill-in editor, T.R. (age
54), from one to zero. In 2018, Fox eliminated the shifts of two
editors, Stock-Hendel and Williams, the first and third oldest
editors, respectively, but retained the second-oldest, J.T. (age 65),
as well as the fourth-oldest, D.F. (age 60).
4
13. In the same paragraph, the seventh and eighth
sentences should be replaced with the following language:
Williams contends that fill-in editor D.W. later had his shifts
increased to between three and five per week. However, the
evidence shows that D.W. remained at an average of two shifts
per week, working more only as a fill-in to cover absences or
vacations, shifts for which Williams also was eligible.
There is no change in the judgment.
____________________________________________________________
COLLINS, ACTING P.J. CURREY, J. SCADUTO, J
Judge of the Los Angeles County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
5
Filed 12/21/22 Williams v. Fox Networks Engineers and Operations CA2/4
(unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
PATRICK WILLIAMS, B309868
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.19STCV05366)
v.
FOX NETWORKS ENGINEERS AND
OPERATIONS et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lia Martin, Judge. Affirmed.
Law Offices of Jeffrey C. McIntyre, Jeffrey Curran
McIntyre, Robert Garcia, Jr. for Plaintiff and Appellant.
Mitchell, Silberberg & Knupp, Seth E. Pierce, Bradley J.
Mullins for Defendants and Respondents.
Patrick Williams appeals following the trial court’s grant of
summary judgment in favor of his former employer, respondent
Fox Digital Enterprises, Inc. (Fox). The trial court concluded
Williams had established a prima facie case of wrongful
termination based on his age in violation of the Fair Employment
and Housing Act (FEHA) (Gov. Code, § 12940 et seq.), but that
Fox had a legitimate, nondiscriminatory reason for its decisions
to reduce and then eliminate Williams’s shifts, and Williams
failed to present sufficient evidence that Fox’s reasons were
pretextual. We affirm.
FACTUAL AND PROCEDURAL HISTORY
I. Background
The following facts are undisputed. Williams was born in
1954. He began working for Fox in its promo department in 1984
as a finishing editor. A finishing editor’s job is to place the final
video editing touches on promos—the “short teaser ads”
broadcast on the Fox television network to promote upcoming
television shows. The finishing editor receives a rough cut of a
promo and finalizes it by adding special effects and graphics,
adjusting coloring, and performing other editing tasks. Room
producers assigned work to the finishing editors, oversaw the
editing, and approved the final promos. The finishing editors
generally worked alone in editing bays, with a room producer
present part of the time.
Finishing editors are employed as “daily hires” pursuant to
a collective bargaining agreement (CBA) with their union. This
means that, technically, they are rehired for each day of work
and scheduled for two weeks at a time. Because Fox’s needs for
promo work vary over the course of a television season, this
policy allows the company flexibility to increase or decrease staff
2
as needed. The union negotiated a premium wage to compensate
for this lack of job security. Although Williams was therefore a
daily hire during his tenure at Fox, in practice, he was
continuously scheduled for work (except for vacations) from 1984
until the elimination of his shifts in 2018.
Under the applicable CBA, Fox utilized a “bifurcated
structure” for the supervision of finishing editors. The direct
supervisor for Williams and the other finishing editors was
William Morales, Vice President of Entertainment Post
Production Engineering. However, assignment of shifts was
handled by Christy Cofer and Tina Manos, Vice President and
Director, respectively, of On-Air Marketing Operations. Cofer
and Manos determined how many and which editors to schedule
for each shift. The scheduling department, under Morales,
implemented those scheduling choices. Cofer and Manos also
supervised the room producers.
In 2009, Williams’s regular schedule was reduced from five
to four shifts per week. He was subsequently offered additional
shifts if there was a need and he was available. Williams has not
claimed that the 2009 reduction was discriminatory.
In September 2017, Fox informed the promo department
that it needed to reduce its operating expenses by $1,000,000.
Cofer and Manos, with Morales’ assistance, were tasked with
implementing these cuts, including by cutting excess shifts. In a
meeting on October 4, 2017, the editors were informed that the
promo department would not be allowed to exceed its budget, as
it had in the past, and that staffing cuts would be forthcoming.
At the time, Fox employed seven regular finishing editors
working an average of four or five shifts per week—Williams,
3
Thomas Stock-Hendel,1 Jack Thannum, Daryl Frederick, Paul
Ware, David Yount, and Ruth Cooper. These editors ranged in
age from 50 to 66 years old. Fox also employed fill-in or part-time
finishing editors, who regularly worked two or fewer shifts and
provided additional coverage when another editor was sick or on
vacation, or more staff was needed. As of October 2017, these fill-
in/part-time editors were Thomas Reichlin and Dylan Way, who
were 54 and 45 years old, respectively. Williams was 63 years
old, the third oldest of the finishing editors after Stock-Hendel
(66) and Thannum(64).
As part of the 2017 cuts, Cofer and Manos decided to
eliminate six shifts per week in the finishing department. They
selected four regular editors, reducing Ware and Thannum from
five to four shifts per week, and Williams and Stock-Hendel from
four to an average of two and a half shifts per week.2 Fox also
reduced the shifts of part-time editor Reichlin from one to zero,
and increased the shifts of Way from one to two. Following the
reduction, Williams was periodically offered additional shifts
when there was a need and he was available.
In the spring of 2018, Cofer and Manos examined
continuing staffing inefficiencies in the finishing department.
These included the “early release” of some night shift editors,
which occurred when editors finished work and left early but
1 Fox reduced and then eliminated the shifts for Stock-
Hendel along with Williams. Stock-Hendel filed a separate
lawsuit against Fox alleging age discrimination.
2 Williams and Stock-Hendel had a practice of alternating
day and night shifts. After the 2017 reduction, they alternated
two day shifts and three night shifts per week, thus averaging
two and a half shifts each.
4
were still paid for a full shift under the CBA. Cofer and Manos
also determined that, based on projected upcoming needs, they
could further reduce the number of finishing editor shifts. They
decided to eliminate the remaining shifts worked by both
Williams and Stock-Hendel. On July 13, 2018, Morales informed
Williams that his shifts were being eliminated. Williams’s
regularly scheduled shifts have never been restored.
The total number of finishing editor shifts scheduled by Fox
dropped each year from 2016 to 2019. As of 2019, Fox continued
to employ Thannum, Frederick, Ware, Yount, and Cooper as
regular editors working four to five shifts per week, and Reichlin
and Way as part-time or fill-in editors.
II. Complaint
Williams filed a complaint on February 14, 2019 against
Fox ,3 alleging claims for age discrimination under the FEHA and
wrongful termination in violation of public policy. Both claims
were based on his allegations that in 2017, Fox “began severely
reducing the number of hours plaintiff was assigned to work, all
while assigning more hours to younger employees in the same job
category.” Williams further alleged that on July 13, 2018, he was
terminated, while Fox subsequently “increased the number of
work hours for younger employees with less experience than
plaintiff.”
III. Summary Judgment
A. Fox’s Motion
Fox filed a motion for summary judgment or, in the
3 Williams also named Fox Digital Enterprises, Inc., and Fox
Payroll Services, Inc. as defendants. The parties later stipulated
to dismiss these defendants with prejudice.
5
alternative, summary adjudication pursuant to Code of Civil
Procedure section 437c.4 Fox argued that Williams could not
establish a prima facie case of age discrimination, as he had no
evidence of age-based comments or other circumstances
suggesting a discriminatory motive for his termination. In
addition, Fox argued that even if Williams could establish a
prima face case, his claim failed as a matter of law because he
could not establish that Fox’s legitimate, non-discriminatory
reasons for his shift reduction and termination were pretextual.5
In support of these arguments, Fox offered evidence that
the shift reductions in 2017 and 2018 were financially motivated.
Cofer, Manos, and Morales all testified that they were informed
in 2017 by the head of the promo department that the
department needed to reduce expenses by $1,000,000. They
decided to cut six finishing editor shifts to achieve this reduction.
Similarly, Williams acknowledged during his deposition that he
was told of the impending budget cuts in 2017 and that when Fox
reduced his shifts, the department shut down an edit bay, which
seemed to be part of the effort to cut costs.
Fox also presented declarations and deposition testimony
4 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
5 Fox further argued that Williams’s claim as to the October
2017 shift reduction was barred because Williams failed to timely
exhaust his administrative remedies as to that claim and because
Williams “himself does not claim that that decision was
motivated by his age.” In addition, Fox contended that Williams
could not support his claim for punitive damages. The trial court
denied summary adjudication on these issues and they were not
raised by either party on appeal.
6
by Cofer and Manos regarding the decision as to which employees
to cut. Cofer stated that she relied on Manos in deciding whose
shifts to reduce in 2017 and 2018 because of Manos’s prior
experience as a room producer. Manos worked with many of the
current finishing editors, and frequently communicated with
room producers regarding finishing editors’ performance. Both
Cofer and Manos stated that they decided which editors to cut by
focusing on those they “believed to be the weakest performers.”
According to both Cofer and Manos, they selected Williams
for the 2017 shift reduction because he was the “slowest/least
efficient of the finishing editors and that compared to the other
finishing editors, he did not seem to demonstrate a strong work
ethic (e.g., he periodically arrived late for his shift and then
seemed eager to leave).” Cofer stated that she based this belief
on what Manos had told her, what she had heard from room
producers, and her understanding that “Williams was widely
perceived as the weakest performer of the group.”
According to Manos, “while Williams did adequate editing
work . . . [he] was the slowest/least efficient of the finishing
editors,” which was “less of an issue when the department was
heavily staffed (even over-staffed), but as we were cutting budget
and shifts, we needed to keep the finishing editors who could
efficiently produce the highest volume of quality promos.” Manos
stated in her declaration that “Williams was widely perceived as
the weakest performer” of the finishing editors, an opinion she
based on “conversations (over the years) with other room
producers, managers and supervisors, and other finishing
editors.” Manos similarly testified during her deposition that
Williams was the first to be chosen to cut because “he was the
slowest.” She also testified that Williams “was usually very eager
7
to get out the door,” and was late arriving to work “on occasion.”
Manos also stated that she spoke with room producer Steve
DiPietro about the planned cuts, and he either agreed with her
selection of Williams and Stock-Hendel or suggested them
himself.6
Fox also provided a declaration from DiPietro, who worked
as a room producer and manager in Fox’s promo department for
21 years. DiPietro declared that Williams was “a weaker
performer than the other finishing editors with whom I worked,”
and was the “slowest/least efficient” of the editors. In his
deposition, DiPietro testified that “everyone” in the department
knew that Williams was slow. As an example, DiPietro recalled
an instance where he gave Williams and another editor “similar”
projects, which the other editor finished in approximately 20
minutes, while Williams took approximately two hours to
complete his project. DiPietro stated that he had “asked
Williams several times to speed up his work, but I did not see
improvement.” DiPietro also testified that he shared his concerns
regarding Williams with Manos. In 2017, when Manos informed
DiPietro of the planned shift reductions for finishing editors, he
recalled that the “answer was obvious to me – Williams was the
weakest performer and should be the first finishing editor to have
his shifts reduced,” compared to his “higher-performing or more
skilled peers.” DiPietro also declared, in an identical statement
to those given by Cofer and Manos, that “compared to the other
6 Fox contended that Stock-Hendel was the next slowest
finishing editor after Williams. It also asserted that Stock-
Hendel struggled to work independently, was inefficient, and
sometimes pushed back on editing directions.
8
finishing editors, [Williams] did not seem to demonstrate a strong
work ethic (e.g., he periodically arrived late for his shift and then
seemed eager to leave).” DiPietro elaborated during his
deposition regarding his claim about work ethic, testifying that
Williams “would arrive late a lot,” coming in five to 20 minutes
late. He did not raise it with Cofer or Manos because “at that
point I just kind of accepted that he’s slow and, you know, 15
minutes late isn’t gonna be that much difference in his bay.”
In addition, several other finishing editors testified that
Williams was the slowest of the group. Way testified that
Williams was the slowest editor, and that room producers “would
talk about how things would take longer to come out of Pat’s
bay.” He stated that this opinion was “pretty much unanimous”
but specifically recalled hearing it from DiPietro and another
producer. Yount testified that he personally felt and had heard
from other editors and room producers that Williams “took longer
to do things so that he wouldn’t be given more work.” Ware
testified to hearing that Williams was “really meticulous” and
“his stuff would always take a long time.” Specifically, he
recalled hearing from “all” of the room producers, including
Manos, that Williams was too slow. Cooper opined that Williams
was a talented editor who was very knowledgeable, but “he never
seemed very interested in getting the work done. Simple spots
were given to him and it would still take an inordinate amount of
time.”
Fox also introduced excerpts from Williams’s deposition, in
which he testified that he was meticulous and a perfectionist in
his work. He believed that he, Stock-Hendel, and Ware were
“really good” editors, because they would “take the extra time to
make sure [a promo] looked as good as it possibly could.” By
9
contrast, Williams did not think the other editors produced the
same quality work, noting that he sometimes “would be
embarrassed” by the way some promos “looked on the air.”
Williams acknowledged that sometimes room producers would
not appreciate the work he was putting into the promos, stating
in particular that DiPietro was “more about speed than quality.”
Williams testified that during his early career at Fox, the
department placed more focus on quality and perfection, whereas
toward the end, the department’s focus shifted toward getting the
promos finished quickly.
When asked whether he was ever told he needed to finish
promos more quickly, Williams testified, “I think that may be the
case.” He elaborated that if he was taking extra time on a promo,
a room producer such as DiPietro would come into the room and
ask what was taking so long. Williams would explain the reason,
but acknowledged that “in [the producer’s] mind, they might
think oh, yeah, he was taking way too long on that.” When asked
if anyone ever spoke to him about not finishing projects on a
timely basis, he testified: “I know they wanted them done
sometimes a little bit faster to – I don’t think I ever missed a
deadline.” Williams testified that he was late “maybe every once
in a while” but would always call ahead. He further estimated he
might have been late “maybe ten times” in the past five years.
For the 2018 reduction that eliminated Williams’s shifts,
Cofer stated that she again leaned heavily on Manos’s judgment.
Both Cofer and Manos testified that they concluded that
Williams remained the weakest performer and therefore decided
to eliminate his shifts. DiPietro also agreed with the decision by
Manos and Cofer to eliminate the remaining shifts for Williams
and Stock-Hendel for the same reasons he had indicated in 2017.
10
Cofer, Manos, and Morales testified that no one had been
hired to replace Williams, and that one of the two editing bays
Williams worked in remained unused for finishing editor work
except for temporarily added shifts. Williams also testified that
to his understanding, in 2018 Fox was “going to shut down one
edit bay totally,” because “they thought the workload was going
to be a lot less.” In his declaration, Morales stated that the
hourly rates for finishing editors were negotiated by each editor
upon hiring, then “typically increased a small percentage each
year as a matter of course (regardless of performance).” He also
provided the range of pay rates for the finishing editors as of
October 2017 and stated that Williams and Stock-Hendel were
not the highest paid finishing editors in 2017 and 2018,
anticipating Williams’s claim to the contrary.
B. Williams’s Opposition
In his opposition, Williams argued that his evidence
established a prima facie case of age discrimination because of
the three oldest finishing editors, all in their 60s, two were let go
and the third had his shifts reduced, while the remaining editors
were younger “by approximately five to almost 20 years.” He also
argued there was evidence of pretext, based on his showing that
he was never counseled or reprimanded for any issue regarding
his work ethic or purported slowness, he was one of the most
highly paid finishing editors, and he had presented evidence of
his stellar work performance and attitude.
Williams presented his own declaration, stating that he
had been “late no more than four to five times” in his last five
years at Fox, and had never received any communication
complaining about his attendance, lateness, or work ethic.
Williams also declared that he was “often asked, and agreed to
11
stay late to finish up promo work,” and was “often the last
finishing editor to be in the office.” Williams denied that DiPietro
ever told him to speed up his work or that he was ever warned
about being a slow worker from management or Human
Resources. He claimed that he was “a careful worker who made
every effort to create error free promos,” and was often
complimented by managers for “my work ethic and editing skills.”
Williams also declared that at “various times during the last few
years I was at Fox,” he heard DiPietro state that Ware “was the
slowest finishing editor.”7
Williams stated that at the time of his termination, he was
making $90.13 per hour. He also stated that when he previously
received raises, he was told by his bosses that those raises were
based on “my overall performance.”
Williams also provided declarations from several other
former Fox employees. Laura Bloom was a graphic artist at Fox
from 1999 to 2019, working directly with finishing editors. She
declared that in her experience, Williams had “an excellent
attitude toward his work,” was “consistently on time to work,”
and she was “aware that he had a reputation for being a very
good finishing editor.” Mark Bonn, who worked as an offline
editor (working on the rough cuts of promos) from 1988 to 2016,
stated that he thought Williams and Stock-Hendel “required the
least amount of direction and explanation as to what was needed
and because of all the finishing editors with whom I worked their
work was by far the best done and most error free.” He never
heard anyone complain that Williams was less competent than
7 The trial court sustained Fox’s objection to this statement,
which we discuss further below.
12
other editors. Bonn also testified that in 2005 or 2006, Williams
and Stock-Hendel were the two highest paid finishing editors,
which he knew because he was involved in union negotiations.
Williams also cited to excerpts from Cofer’s deposition, in
which she testified that she would reach out to Morales to handle
an issue with an employee if it was “pervasive.” She
acknowledged that she did not reach out to Morales about
Williams or discuss any issues directly with Williams. Similarly,
although Manos testified that she would often see Williams
coming in late, she did not speak to Morales about it. She
admitted that she would refer issues regarding editors to Morales
when “the producers had a problem” with it.
Williams also pointed to testimony by fill-in editor Way in
2019 (then age 47) that over the past year, he worked two shifts a
week. However, in the month before the deposition, he averaged
three shifts per week because Fox was busier with mid-season
replacement shows.
In addition, Williams cited to an email from Morales to
Cofer in September 2017, discussing the planned shift reduction
and noting an hourly rate for finishing editors of $85. In
Morales’s deposition, he testified that he arrived at this number
by averaging the finishing editor’s rates for the purposes of
preparing a “forecast.” Williams argued that this supported his
claim that he made significantly more than the average rate for
the finishing editors in the department.
C. Fox’s Reply
In reply, Fox argued that Williams’s own testimony
acknowledged his perfectionism and thus supported Fox’s
contention that he was the slowest. Fox noted that Williams was
“not terminated because he produced poor quality or error-ridden
13
work,” but because he spent too much time on promos. Fox also
contended that Williams misstated the facts by claiming only the
three oldest editors were cut and that the youngest editor
received a drastic increase in shifts in 2018.
Fox provided an additional declaration from Morales, which
included the statement that his prior testimony regarding the
$85 per hour rate was “only an estimate.” Morales also provided
the number of shifts per year and hourly rates of all the finishing
editors between 2015 and 2018. Fox also included additional
excerpts from numerous depositions, a reply separate statement,
and objections to Williams’s evidence.
Williams filed an objection to Fox’s reply separate
statement and additional evidence. He argued that Fox’s
submission of a 296-page supplemental separate statement in
reply was improper and should be disregarded, along with the
new facts submitted in reply, including the reply Morales
declaration and exhibits thereto, the wage chart, and additional
deposition excerpts. Fox filed a written response stating that it
had not submitted new evidence but rather responses to
plaintiff’s evidence.
D. Ruling
The court heard argument on August 27, 2020. The court
first addressed the evidentiary objections on the record. With
respect to Williams’s objection regarding Fox’s new evidence on
reply, the court sustained the objection “to the extent that it’s
offered for truth as far as what Manos considered.” The court
overruled the remainder of Williams’s objections to Fox’s
evidence. The court sustained several of Fox’s objections to
Williams’s evidence; we discuss those relevant to this appeal
further below. Following argument by the parties, the court took
14
the motion under submission.
The court issued its order on September 4, 2020, granting
the motion. First, the court reiterated that it had not considered
any new evidence submitted by Fox with its reply. Second, the
court found that Fox “failed to meet its burden of establishing
that plaintiff will be unable to obtain evidence to establish a
prima facie case.” The court noted that Fox relied on the absence
of age-related comments to Williams and the fact that Williams
did not know the bases for the decisions by Cofer and Manos, and
concluded that the absence of such evidence was insufficient for
Fox to carry its burden to show that Williams could not obtain
evidence to establish a prima facie case.
Third, the court found that Fox “met its burden of
show[ing] that it had legitimate business reasons for taking
finishing editors off the schedule that were unrelated to their
age.” As such, the burden shifted to Williams to establish a
triable issue of pretext. The court noted that Williams’s evidence
showed that Way, a younger, fill-in finishing editor, was
regularly scheduled to work two days per week, the same number
of shifts assigned to Thannum, who was about the same age as
Williams. Although Williams claimed that Way received up to
five shifts per week, the court found that this occurred only when
he was filling in for absent editors, and that Williams “also would
have been considered for finishing editor work on a fill-in basis”
going forward. Thus, the court found that Williams “has not been
able to rebut defendant’s legitimate business reason for removing
him from the regular schedule. Plaintiff has not been able to
point to evidence that raises a rational inference that intentional
discrimination occurred.” The court granted summary
adjudication on both causes of action as to the issue of pretext,
15
and accordingly granted summary judgment for Fox.
The court entered judgment in favor of Fox. Williams
timely appealed.
DISCUSSION
I. Legal Standards
“On appeal after a motion for summary judgment has been
granted, we review the record de novo, considering all the
evidence set forth in the moving and opposition papers except
that to which objections have been made and sustained.” (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) A
defendant moving for summary judgment must show “that one or
more elements of the cause of action . . . cannot be established, or
that there is a complete defense to the cause of action.” (§ 437c,
subd. (p)(2).) “[W]e must view the evidence in a light favorable to
plaintiff as the losing party, liberally construing [his or] her
evidentiary submission while strictly scrutinizing defendants’
own showing, and resolving any evidentiary doubts or
ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 768.) We accept as true both the facts
shown by the losing party’s evidence and reasonable inferences
from that evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 856.)
Summary judgment is appropriate only when “all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” (§ 437c, subd. (c).) A triable issue of material
fact exists if the evidence and inferences therefrom would allow a
reasonable juror to find the underlying fact in favor of the party
opposing summary judgment. (Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at pp. 850, 856.)
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An employee alleging age discrimination under state or
federal law must be over 40 years old and must “ultimately prove
that [an] adverse employment action taken was based on his or
her age.” (Hersant v. Department of Social Services (1997) 57
Cal.App.4th 997, 1002 (Hersant); accord, Guz, supra, 24 Cal.4th
at pp. 354–355.) “Since direct evidence of such motivation is
seldom available, the courts use a system of shifting burdens as
an aid to the presentation and resolution of age discrimination
cases.” (Hersant, supra, at p. 1002.)
An employer may meet its initial burden in moving for
summary judgment or adjudication of an employment
discrimination claim by presenting evidence that one or more
elements of the plaintiff’s prima facie case is lacking, or the
employer acted for a legitimate, nondiscriminatory reason.
(Zamora v. Security Industrial Specialists, Inc. (2021) 71
Cal.App.5th 1, 32; Husman v. Toyota Motor Credit Corp. (2017)
12 Cal.App.5th 1168, 1181; Featherstone v. Southern California
Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158
(Featherstone).) The elements of a prima facie case generally
include “evidence that (1) [plaintiff] was a member of a protected
class, (2) he was qualified for the position he sought or was
performing competently in the position he held, (3) he suffered an
adverse employment action, such as termination, demotion, or
denial of an available job, and (4) some other circumstance
suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at p.
355.) A legitimate, nondiscriminatory reason is one that is
unrelated to the prohibited bias and, if true, would preclude a
finding of discrimination or retaliation. (Id. at p. 358.) “[I]f
nondiscriminatory, [the employer’s] true reasons need not
necessarily have been wise or correct. [Citations.] While the
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objective soundness of an employer’s proffered reasons supports
their credibility . . ., the ultimate issue is simply whether the
employer acted with a motive to discriminate illegally.” (Ibid.)
If the employer satisfies its initial burden, the burden
shifts to the plaintiff to present evidence creating a triable issue
of fact showing the employer’s stated reason was a pretext for
unlawful animus. (Husman v. Toyota Motor Credit Corp., supra,
12 Cal.App.5th at p. 1182; Featherstone, supra, 10 Cal.App.5th at
pp. 1158-1159.) The plaintiff's evidence must be sufficient to
support a reasonable inference that discrimination was a
substantial motivating factor in the decision. (Harris v. City of
Santa Monica (2013) 56 Cal.4th 203, 232; Guz, supra, 24 Cal.4th
at pp. 353, 357.) The stronger the employer’s showing of a
legitimate, nondiscriminatory reason, the stronger the plaintiff’s
evidence must be in order to create a reasonable inference of a
discriminatory motive. (Guz, supra, 24 Cal.4th at p. 362 & fn.
25.)
II. Analysis
A. Ruling on Objections
We first turn to the trial court’s evidentiary rulings, four of
which Williams challenges on appeal. We review the trial court’s
rulings on evidentiary objections for abuse of discretion. (See
Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th
1158, 1169, citing People ex rel. Lockyer v. Sun Pacific Farming
Co. (2000) 77 Cal.App.4th 619, 639–640.) Here, we conclude that
the trial court did not abuse its discretion in sustaining Fox’s
objections to the evidence.
Williams challenges Fox’s objection number 11 regarding
his statement in his declaration that “at various times during the
last few years I was at Fox, I heard Steve DiPietro . . . state that
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one of my colleagues, [Ware], was the slowest finishing editor.”
Fox objected on the grounds of hearsay. The trial court sustained
the objection without discussion.
Williams argues DiPietro’s statement was an authorized
admission and therefore admissible pursuant to Evidence Code
sections 1220 and 1222.8 Evidence Code section 1222, which
provides an exception to the hearsay rule for authorized
admissions, states, “Evidence of a statement offered against a
party is not made inadmissible by the hearsay rule if: [¶] (a) The
statement was made by a person authorized by the party to make
a statement or statements for him concerning the subject matter
of the statement; and [¶] (b) The evidence is offered either after
admission of evidence sufficient to sustain a finding of such
authority or, in the court’s discretion as to the order of proof,
subject to the admission of such evidence.”
DiPietro’s statement was admissible as an authorized
admission only if Williams showed, by admissible evidence, that
DiPietro was authorized to speak for Fox when he told Williams
that Ware was the slowest editor. (O’Mary v. Mitsubishi
Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570
(O’Mary); see also Bowser v. Ford Motor Co. (2022) 78
Cal.App.5th 587, 613 [“A statement is ‘admissible as an
authorized admission . . . only . . . where a proper foundation has
been laid as to the declarant’s authorization to speak on behalf of
the party against whom the statement is offered.’”].)
8 Although Williams cites to Evidence Code section 1221
(adoptive admission) in his opening brief, from the substance of
his argument it is clear that he intended to cite to section 1222
(authorized admission).
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Determining whether an employee has the authority to make a
statement “requires an examination of the nature of the
employee’s usual and customary authority, the nature of the
statement in relation to that authority, and the particular
relevance or purpose of the statement.” (O’Mary, supra, at p.
570.)
Apart from contending that “it is obvious” that DiPietro
qualified as someone with authority to speak on behalf of Fox,
Williams fails to cite to any authority supporting his position.
Moreover, he does not cite to any facts in the record establishing
such authority, nor does his declaration offer sufficient
information about the context in which the statement was made
to support his claim that it was made within the scope of
DiPietro’s purported authority. As Fox points out, Williams did
not testify to this statement at his deposition and did not ask
DiPietro about it at his deposition, despite DiPietro’s contrary
deposition testimony that Williams was the slowest. Under these
circumstances, we find no abuse of discretion in the trial court’s
conclusion that the evidence was inadmissible hearsay.
We also reject Williams’s alternative contention that the
statement was admissible under Evidence Code section 1235.
That section permits admission of evidence of a statement “made
by a witness” where the “statement is inconsistent with his
testimony at the hearing.” The evidence must also be offered in
compliance with Section 770, which requires the witness to be
confronted with the inconsistent statement while testifying in
order “to give him an opportunity to explain or to deny the
statement.” (Evid. Code, §§ 770, 1235.) The statement by
DiPietro at issue, recounted by Williams in his declaration, does
not satisfy these requirements, as it was not offered to impeach
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DiPietro’s testimony at a hearing, nor was he given an
opportunity to explain or deny it.
Williams also challenges the trial court’s rulings on two of
Fox’s objections to portions of Bloom’s declaration. In objection
number 15, Fox objected to Bloom’s statement that during the
time she worked with Williams, she “found him to be very
conscientious in his work at all times, extremely dedicated to
creating high quality, error free work.” In objection number 16,
Fox cited Bloom’s statement that Williams “had an excellent
attitude toward his work and was someone who could always be
counted on to accommodate any requests made of him by
management.” Fox objected that the statements lacked
foundation, and were speculative, conclusory, and irrelevant.
The court sustained objection number 15 on the grounds of
relevance and objection number 16 without comment.
Williams argues that Bloom’s statements were relevant to
counter Fox’s claim that Williams exhibited a poor work ethic.
We find no abuse of discretion in the trial court’s ruling to the
contrary. Bloom did not offer testimony regarding Fox’s specific
claim that Williams often arrived to work late and seemed eager
to leave. Similarly, her testimony did not address Williams’s
speed as a finishing editor. As such, her general observations
regarding his conscientiousness were irrelevant. Moreover,
Bloom’s statement that Williams was focused on “error-free
work” echoes other evidence offered by both Williams and Fox, as
the latter argued that the former’s focus on quality often led to
deficiencies in speed. As such, the trial court was within its
discretion to exclude the evidence.
We similarly conclude there was no error in sustaining
Fox’s objection number 24, regarding Morales’s deposition
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testimony that a document referring to “$85 hr” addressed the
average rate for finishing editors. Fox objected that this was
irrelevant because Morales submitted an errata to his deposition
“explaining that the ‘$85.00’ per hour rate was an estimate used
for forecasting, not the average of all finishing editor rates.” The
court sustained the objection without comment. Williams
contends that the evidence was relevant to his claim that he was
a highly paid editor and therefore a top performer, and that
Morales’s errata did not change that conclusion. As we discuss
further below, the fact that Williams was paid above the average
rate for finishing editors, even if true, does not demonstrate that
Fox believed he was performing above his peers. Thus, Morales’s
testimony regarding the average pay rate is irrelevant to the
issue of pretext and the court was within its discretion to exclude
it.
B. No Triable Issue of Pretext
We next turn to the merits of Fox’s summary judgment
motion. The trial court found that Fox had not met its initial
burden to show that Williams could not establish a prima facie
case of discrimination. Conversely, the court concluded that Fox
had presented evidence that it had a legitimate,
nondiscriminatory reason for reducing and then eliminating
Williams’s shifts. Williams does not dispute Fox’s evidence that
the overall decision to cut shifts in 2017 and 2018 was motivated
by its mandate to reduce the budget of the promo department.
He contends, however, that Fox’s reason for selecting him (and
Stock-Hendel) was discriminatory. (Martin v. Lockheed Missiles
& Space Co. (1994) 29 Cal.App.4th 1718, 1731–1732 [employer
met its burden by producing evidence that an employee was
terminated as part of a company-wide reduction in force as a
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result of adverse economic conditions].) Thus, the burden shifts
to Williams to demonstrate a triable issue of fact with
“‘substantial evidence that the employer’s stated reasons were
untrue or pretextual, or that the employer acted with
discriminatory animus, such that a reasonable trier of fact could
conclude that the employer engaged in intentional discrimination
or other unlawful action.”’” (Ortiz v. Dameron Hospital Assn.
(2019) 37 Cal.App.5th 568, 577.)
Williams asserts that he made this showing. He argues
that he presented evidence contradicting Fox’s claims that he was
the slowest editor with a poor work ethic, and further
demonstrated Fox’s discriminatory intent with the fact that it
targeted only the three oldest editors (Williams, Stock-Hendel,
and Thannum) for shift reductions. We are not persuaded that
Williams has met his burden to produce substantial evidence to
defeat summary judgment.
Williams argues that Fox’s claim that he was the slowest
finishing editor, and was selected for reduction as a result, is
pretextual. However, Fox presented evidence from its two
decision makers, Cofer and Manos, that they considered Williams
to be the slowest of the editors and cut his shifts on that basis.
Producer DiPietro and multiple co-workers also testified that
Williams was commonly regarded as the slowest of the group.
Williams failed to meaningfully dispute this evidence;
indeed, his testimony supports it. Williams testified several
times during his deposition that he was meticulous, a
perfectionist, and prided himself on the quality of his work.
These assessments were echoed by other editors as well as the co-
worker declarations Williams presented. Williams also
acknowledged that these traits were not always appreciated by
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his supervisors at Fox and that in recent years he had seen Fox
shift its focus from quality to quantity of work. Williams further
admitted that he was aware of times where producers felt he
needed to work more quickly and believed he had been spoken to
about the issue. This testimony belies Williams’s contention that
Fox fabricated the claim of slowness after terminating him and
that no one at Fox ever mentioned the issue to him.
It is well-established that “a party cannot create an issue of
fact by a declaration which contradicts his prior discovery
responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12; see
also Foroudi v. The Aerospace Corp. (2020) 57 Cal.App.5th 992,
1007 [an employee’s “subjective beliefs . . . do not create a
genuine issue of fact; nor do uncorroborated and self-serving
declarations”].) In determining whether any triable issue of
material fact exists, the trial court may give “great weight” to
admissions made in discovery and “disregard contradictory and
self-serving affidavits of the party.” (Preach v. Monter Rainbow
(1993) 12 Cal.App.4th 1441, 1451.) Thus, Williams cannot create
a triable issue of fact by pointing to his statement in his
declaration that he was never told about any issues with his
speed, where that statement is contrary to his prior testimony.
(See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1,
21, [where a declaration submitted in opposition to a motion for
summary judgment motion clearly contradicts the declarant’s
earlier deposition testimony, the court may disregard the
declaration and “‘conclude there is no substantial evidence of the
existence of a triable issue of fact’”].)
With respect to the complaints regarding his work ethic,
Williams points to the fact that Cofer, Manos, and DiPietro made
identical, vague statements in their declarations regarding his
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arriving to work late and seeming “eager” to leave as evidence
that this was not a real issue. In the absence of other evidence,
these statements do not strongly support Fox’s contention that
Williams’s perceived poor work ethic was a basis to select him for
shift reduction. However, the declarants also testified at their
depositions with additional details regarding this issue, such as
DiPietro’s testimony that Williams arrived between five and 20
minutes late “a lot.” Other editors also testified to this issue, and
Williams himself admitted he was “occasionally” late to work.
Williams presented no evidence to raise a triable issue on this
point. Further, his evidence that he was perceived to be an
“excellent” editor by some former supervisors and co-workers
does not meet his burden, where none of those declarants were
the decision-makers here, nor did any of them testify as to his
timeliness.
Williams relies heavily on the fact that he was never
counseled or reprimanded about his purported problems with
speed and work ethic, despite Fox’s policy and practice to address
such issues with editors through Morales, as evidence that these
were not actual issues. But Fox’s evidence established that
Williams was not chosen for shift reduction in 2017 and 2018
because he was a poor employee or that his issues rose to the
level of problems needing formal correction; rather, Fox
presented substantial evidence that it chose Williams because he
was the slowest of the finishing editor group.
Finally, Williams argues that he can establish pretext by
showing that Fox targeted only the three oldest editors. This
claim is not supported by the record. In the 2017 reduction, Fox
cut shifts from four regular finishing editors, ranging in age from
55 to 66. At that time, the evidence shows that Fox increased the
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number of shifts for one of the fill-in editors, Way (age 45), from
one to two per week, but also cut the same number of shifts from
the other fill-in editor, Reichlin (age 54), from one to zero. In
2018, Fox eliminated the shifts of two editors, Stock-Hendel and
Williams, the first and third oldest editors, respectively, but
retained the second-oldest, Thannum (age 65), as well as the
fourth-oldest, Frederick (age 60). Fox did not increase shifts for
any editors at that time. Williams contends that fill-in editor
Way later had his shifts increased to between three and five per
week. However, the evidence shows that Way remained at an
average of two shifts per week, working more only as a fill-in to
cover absences or vacations, shifts for which Williams also was
eligible. Thus, Williams failed to present evidence to support his
claim that Fox gave his shifts to a younger editor.
Williams also claimed that he and Stock-Hendel were the
highest paid editors9 and therefore the best performers. But he
provided no evidence linking performance with pay. Instead, Fox
presented evidence that the pay rate was established under the
CBA and raises were given on an annual basis, rather than based
on an evaluation of an editor’s performance.
Accordingly, we conclude that Williams failed to establish
evidence of pretext and the trial court did not err in granting
Fox’s motion for summary judgment.
9 We note that Fox disputed this claim and provided evidence
with its reply suggesting that one of the youngest editors earned
the highest hourly rate among the editors. However, the trial
court sustained Williams’ objection to this belated evidence, a
ruling Fox has not appealed.
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DISPOSITION
The judgment is affirmed. Fox is entitled to its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P.J.
We concur:
CURREY, J.
SCADUTO, J.

Judge of the Los Angeles County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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