Stock-Hendel v. Fox Digital Enterprises CA2/1 ( 2022 )

Filed 10/4/22 Stock-Hendel v. Fox Digital Enterprises CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THOMAS STOCK-HENDEL, B309869
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV04334)
v.
FOX DIGITAL ENTERPRISES,
INC.,
Defendant and Respondent.
APPEAL from the judgment of the Superior Court of
Los Angeles County, Lia Martin, Judge. Affirmed.
Law Offices of Jeffrey C. McIntyre, Jeffrey Curran McIntyre
and Robert Garcia, Jr., for Plaintiff and Appellant.
Mitchell, Silberberg & Knupp, Seth E. Pierce and Bradley J.
Mullins for Defendant and Respondent.
________________________
Thomas Stock-Hendel appeals from a judgment dismissing
his age discrimination lawsuit against his former employer, Fox
Digital Enterprises, Inc. (Fox). Stock-Hendel contends the trial
court erred in granting summary adjudication for Fox on two key
issues: (1) whether Stock-Hendel could make a prima facie case,
and (2) whether the nondiscriminatory reason Fox identified for
reducing and ultimately eliminating Stock-Hendel’s shifts was
pretextual. Stock-Hendel further challenges certain evidentiary
rulings the court made in connection with Fox’s summary
judgment /adjudication motion.
We affirm. The trial court correctly concluded that Fox
identified evidence establishing Stock-Hendel could not prove
circumstances supporting an inference of discriminatory intent,
a requisite element of a prima facie case for age discrimination.
We further hold that the trial court did not abuse its discretion
in permitting Fox to rely on certain evidence it identified for the
first time at the reply stage of Fox’s summary
judgment /adjudication motion. Finally, as to the remainder of
Stock-Hendel’s challenges to the court’s evidentiary rulings,
even assuming, for the sake of argument, that these rulings were
in error, such error would not affect our analysis and ultimate
conclusion on appeal.
FACTS AND PROCEEDINGS BELOW
The following background is based on the evidence the parties
presented at the summary judgment stage. Unless the source of the
information is indicated, it is undisputed.
A. Stock-Hendel’s Duties as a Finishing Editor
at Fox
In November 1989, Fox hired Stock-Hendel as a finishing
editor. A finishing editor electronically finishes advertising
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“promos” for Fox television programs. Room producers assign
work to the finishing editors, provide specific instructions regarding
needed edits, and approve the final promos.
At Fox, finishing editors are assigned to an editor’s bay,
which is a separate office filled with required electronic equipment.
Room producers typically spend their shift in an editor’s bay. The
editor’s bay, in effect, acts as the room producer’s office and the
editor’s office, and the room producers directly assist, review the
work of, and answer the questions of the editors with whom they
share an office. As there were fewer room producers than editors,
some finishing editors, including Stock-Hendel, generally worked
without a room producer in their editing bay.
All finishing editors asked questions of room producers.
Because a room producer was not typically in his editing bay, when
Stock-Hendel needed to obtain information to complete a promo,
he called a room producer or went to an editing bay that a room
producer shared with another finishing editor.
B. Finishing Editor Shift Reductions and
Stock-Hendel’s Termination
1. Finishing editor staffing generally
Under the agreement entered into between Fox and the union
representing finishing editors, finishing editors like Stock-Hendel
are what is referred to as daily hires. This means that, technically,
a finishing editor is rehired each day of work. Given that promo
work, by its nature, varies over the course of the television season,
the daily hire approach was implemented to permit management to
staff up or down as work needs change. The union specifically
negotiated a premium wage to compensate for this lack of job
security.
3
Stock-Hendel was a daily hire while working at Fox,
although, in practice, he was continuously on Fox’s work schedule
(except for vacations) from November 1989 until July 2018.
At the time Stock-Hendel was terminated, Christy Cofer (the
vice president of on-air marketing operations) and Tina Manos (the
director of on-air marketing operations) determined the required
number of finishing editor shifts and who would work them. The
scheduling department, ultimately under William Morales (vice
president of entertainment post-production engineering) then
implemented Cofer and Manos’s scheduling choices.
2. 2009 finishing editor shift reduction
In 2009, Fox reduced the number of finishing editor shifts as
part of overall cost reductions. Stock-Hendel’s regular shifts were
reduced from a consistent schedule of five shifts per week to four
shifts per week. After this reduction, however, Fox offered him
additional shifts “relatively regularly,” depending on additional
staffing needs. The 2009 reduction did not impact all finishing
editors. Stock-Hendel was told that he was selected, in part, due to
his tendency to “usurp[ ] [the room producer’s] authority,” an issue
that, according to Stock-Hendel, resulted from the changing role of
the room producers at the time, and that he corrected after it was
raised with him in 2009. Stock-Hendel did not view these shift
reductions as discriminatory, and instead testified at deposition
that “they [Fox] gave me an honest answer [when he asked why he
was selected] and I accepted it.”
3. 2017 and 2018 finishing editor shift
reductions
In 2017, Fox decided it needed to make cuts across various
units to reduce costs. Scott Edwards (executive vice president of
creative advertising) announced this to the finishing editors at an
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all-editors meeting that Stock-Hendel attended in October
2017. Edwards conveyed to the editors that, in Stock-Hendel’s
words, “[t]he nature of the workload was going to be changing.
That philosophically, people should view what they were doing at
Fox as a strict freelance job, even though the majority of people in
that room had been there for a very long time, such as myself. That
. . . because they were expecting to cut fewer promos, there would be
less work. That the nature of what they were doing would be to try
and do as much promotion as they could, but with less. [¶] . . . [T]he
rule—the word came down he had to absolutely stay within budget
even though they had gone over budget every year. . . . [T]he whip
was coming down.”
Contemporaneous Fox email communications identify these
budget cuts, as well as finishing editor “[n]ight shifts experiencing
early releases,” as the basis for the 2017 reduction in the total
number of finishing editor shifts to be staffed. Cofer and Manos
chose to reduce the total number of shifts from 35 to 29 shifts per
week.
At that time, the finishing editors working regularly at Fox—
that that is, an average of at least four shifts per week—were
Stock-Hendel, Daryl Frederick, Jack Thannum, Patrick Williams,
Paul Ware, David Yount, and Ruth Cooper. These editors ranged
in age at that time from 51 to 66 years old. Fox also employed
“fill-in and/or more part-time finishing editors” as needed. A
fill-in editor provides coverage when other editors are sick, on
vacation, or when coverage is otherwise needed, so such fill-in
editors’ shifts vary considerably depending on things like regular
editor absences or whether it is premiere season. In October 2017,
these fill-in/part-time editors were Thomas Reichlin, Dylan Way,
and Jason Cheung. These editors had an age range of 44 to
5
55 years at the time. Stock-Hendel, at 66 years, was the oldest of
all the finishing editors.
The October 2017 shift reductions were as follows: Ware
(then 55 years) was reduced from five to four shifts per week;
Williams (then 63 years) was reduced from four to three shifts
per week; Thannum (then 65 years) was reduced from five to
four shifts a week; Stock-Hendel (then 66 years) was reduced
from four to two shifts per week; and Reichlin (then 54 years),
who had typically been working one shift per week as a fill-in
editor, stopped receiving any shifts. The shift allocations for
Frederick (then 59 years), Yount (then 54 years), and Cooper
(then 50 years) did not change, and the shifts typically offered
to Way (45 years)—who, as a fill-in editor, did not have regularly
scheduled shifts—increased from typically one to two shifts per
week to typically two shifts per week.
In 2018, due to “a reduction of workload during the summer
in addition to being asked to reduce costs,” Fox announced it
would again reduce the number of finishing editor shifts. Cofer
and Manos again decided which finishing editors’ shifts to reduce
or eliminate. In connection with this, Manos consulted with Steve
DiPietro, the lead room producer at the time. The cuts they decided
to implement ultimately affected three editors, beginning in June
2018: Thannum (then 65 years), whose shifts were reduced from
four to three per week, and Stock-Hendel (then 66 years) and
Williams (then 64 years), who both had their shifts reduced to zero.
Stock-Hendel and Williams remained on the roster. Later in 2018,
Fox offered Stock-Hendel fill-in shifts, which he declined.
Although Fox still adds occasional ad hoc shifts (similar to
the ones previously offered to Stock-Hendel) to the schedule to meet
one-off needs, Fox has never restored Stock-Hendel’s regularly
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scheduled shifts. Indeed, the total number of finishing shifts
scheduled by Fox has dropped significantly since 2016.
C. Stock-Hendel’s Lawsuit Against Fox
Stock-Hendel filed suit against Fox, alleging two causes of
action: age discrimination under California’s Fair Employment
and Housing Act (FEHA) and wrongful termination in violation
of public policy. Both were based on allegations that, in 2017,
Fox “began severely reducing the number of hours [Stock-Hendel]
was assigned to work, all while assigning more hours to younger
employees in the same job category” and that, after Fox terminated
Stock-Hendel in 2018, it “increased the number of work hours for
younger employees with less experience than [Stock-Hendel], hours
and projects that could have also been assigned to [Stock-Hendel].”
D. Fox’s Motion for Summary Judgment or
Adjudication
Fox moved for summary judgment or, in the alternative,
summary adjudication. Both parties raised objections to evidence
offered by the other in connection with the motion. Stock-Hendel
objected to Fox offering a compendium of evidence for the first time
on reply. Stock-Hendel did not, however, request a continuance or
permission to file a surreply in the six months between Fox filing
its reply compendium and the motion hearing, during which
time discovery was ongoing. We discuss Fox’s objections in more
detail in Discussion part B, post.
Fox’s motion argued for summary judgment or adjudication
on the basis that, inter alia, Stock-Hendel could not establish a
prima facie case of age discrimination, because he had not and could
not offer evidence supporting a reasonable inference that Fox acted
with a discriminatory motive. Fox argued that membership in a
protected class is not enough, and submitted evidence reflecting
7
that Stock-Hendel had never heard any age-based comments
or jokes during his long tenure at Fox. Fox also pointed to evidence
that Fox had “regularly scheduled (hired) [Stock-Hendel]” for many
years “while he was in his [60’s],” which, given that Stock-Hendel
was a daily hire, Fox argued supported an inference that there was
no discriminatory motive for his firing. (See Bradley v. Harcourt,
Brace & Co. (9th Cir. 1996) 104 F.3d 267 [“where the same actor is
responsible for both the hiring and the firing of a discrimination
plaintiff, and both actions occur within a short period of time, a
strong inference arises that there was no discriminatory motive].)
Fox further pointed to evidence that Fox offered extra shifts after
both the 2017 and 2018 shift reductions, that shifts had been in a
general decline, that an editing bay had been closed, and that shifts
from which Stock-Hendel was removed had not been restored.
In opposition to Fox’s motion, Stock-Hendel argued that the
ages of the finishing editors most and least affected by the shift
reductions/eliminations sufficiently supported an inference of
discriminatory intent to state a prima facie case. To support
his argument, Stock-Hendel offered his own declaration roughly
estimating the ages of the various finishing editors working at
Fox in 2017 and 2018. Specifically, his declaration provided that
he “was the oldest finishing editor[ ],” that of “the other two oldest
finishing editors, namely Patrick Williams and Jack Thannum,
both of whom were in their middle 60’s, one was also eliminated
from the schedule, and one had his number of shifts reduced. All
of the remaining finishing editors, as of July 2018, were five to
20 years or more younger than [Stock-Hendel]. [He] had worked
with all of the other editors for many years and some [he] [knew]
their exact ages and [he] [knew] the approximate ages of others.”
To rebut this argument, Fox included the Morales declaration
in its reply compendium. The declaration identifies the specific
8
ages of the relevant finishing editors, as well as whether they
were regularly scheduled or fill-in editors. These birthdates reflect
ages of the various finishing editors that are generally consistent
with the estimated ages included in Stock-Hendel’s declaration.
Fox argued that the specific ages of the finishing editors, when
considered alongside how the shift reductions and eliminations
affected each editor, actually precluded an inference of
discriminatory intent, even at the prima facie stage.
Fox’s motion sought summary judgment or adjudication
on the additional basis that, even assuming Stock-Hendel
had met his burden of establishing a prima facie case for age
discrimination, Fox had presented evidence establishing legitimate,
nondiscriminatory reasons for the shift reductions affecting Stock-
Hendel—namely, the need for cost reductions and problems with
Stock-Hendel’s work. Fox further argued Stock-Hendel had failed
to provide evidence sufficiently supporting Fox’s proffered reasons
were pretextual. To support these arguments, Fox submitted
declarations and documentary evidence reflecting that cost
reductions motivated the reduction /elimination of finishing editor
shifts in 2017 and 2018. Both Fox and Stock-Hendel also offered
declarations and deposition testimony of Fox employees and
officers, and of Stock-Hendel himself, regarding Stock-Hendel’s
work performance.
1. Fox’s evidence regarding Stock-Hendel’s
work performance
Fox offered evidence that Cofer, Manos and DiPietro viewed
Stock-Hendel as a weaker performer than his peers, specifically
that, compared to other finishing editors, he struggled to work
independently, asked too many questions, was often argumentative,
and was therefore less efficient and produced less work than his
peers. Fox also offered deposition testimony of Stock-Hendel and
9
two other finishing editors recalling complaints or comments about
the number of questions Stock-Hendel asked. In addition, Fox
offered Yount’s deposition testimony that “[t]he general complaint
is that [Stock-Hendel] was argumentative [¶] . . . [¶] [a]nd that he
asked questions before he thought things through.”
According to lead room producer DiPietro, Stock-Hendel’s
need for “ ‘hand holding’ ” meant DiPietro had to give him only
straightforward work. DiPietro was able to roughly quantify that
he “would spend minimum twice as much with [Stock-Hendel] than
I would with the other editors.” Cofer and Manos declared that,
because of these issues, they targeted Stock-Hendel’s shifts when
cost cuts mandated shift reductions in 2017 and 2018.
2. Stock-Hendel’s evidence regarding his
work performance
In opposing summary judgment, Stock-Hendel offered
evidence that he had never received any written communication
from anyone at Fox reflecting the concerns about his work
performance identified in Fox’s motion. Fox does not provide
finishing editors with regular performance reviews. It was,
however, the practice at Fox for the vice president over the editors’
group, Morales, to intervene when an editor was having chronic
problems. Neither Morales nor anyone from the Fox human
resources department ever notified Stock-Hendel that he had
any chronic problems or that Morales needed to speak to Stock-
Hendel. Stock-Hendel also submitted evidence that he was paid
40 percent more per hour than union scale and $10.00 more than
the average hourly rate of his colleagues.
Stock-Hendel offered evidence that he had worked with
20 to 30 room producers during his time at Fox, and that
DiPietro was the only one who had ever told him he asked too
many questions. Stock-Hendel did acknowledge at deposition
10
that DiPietro had made DiPietro’s concerns about Stock-Hendel’s
questions known to Stock-Hendel, and that Stock-Hendel was
aware that “DiPietro would get frustrated because I would ask him
questions.” Stock-Hendel offered additional deposition testimony in
which DiPietro described his complaints to colleagues about Stock-
Hendel’s work as “venting” and was unable to estimate how much
time he spent answering Stock-Hendel’s questions, or to provide
an estimated number of average daily questions.
Stock-Hendel also offered declarations and deposition
testimony of himself and others attesting to his abilities as a
finishing editor while at Fox. Stock-Hendel testified that he only
asked the room producer for information which was either not
available to him at all, or which, if he had attempted to find the
information himself, it would have greatly slowed the process.
The questions generally only took a couple of minutes or less.
Stock-Hendel also offered a declaration of Camella Coggins,
a room producer who worked at Fox from 2000 to early 2016.
According to Coggins, Stock-Hendel did not ask unnecessary
questions, and she spoke highly of his work. Stock-Hendel also
offered the declaration of Mark Bonn, a promo editor who worked
at Fox from 1988 to 2016, indicating Stock-Hendel was one of
two editors (the other being Williams) given the most complex or
difficult projects. According to Bonn, Bonn requested Stock-Hendel
handle his promos while working at Fox because Stock-Hendel
required the least amount of direction and explanation and because,
of all the finishing editors with whom Bonn worked, Stock-Hendel
and Williams’s work “was by far the best done and most error free.”
Also according to Bonn, Williams and Stock-Hendel were always
cooperative and easily grasped what was needed.
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3. The court’s evidentiary rulings on
summary judgment
In its tentative ruling on Fox’s motion, the court addressed
most of the parties’ evidentiary objections. On appeal, Stock-
Hendel challenges several evidentiary rulings sustaining objections
by Fox. These rulings are as follows:
• The court sustained Fox’s objections to portions of Stock-
Hendel’s declaration indicating he asked only routine
questions seeking necessary information, and that these
questions were of the type that room producers were
employed to answer to assist the editing process. Fox
objected to this evidence as irrelevant, lacking foundation
and speculative.
• The court sustained Fox’s objections to portions of Stock-
Hendel’s declaration indicating he was told by various people
that he was one of the faster editors. Fox objected on the
basis that these portions of the declaration were irrelevant,
lacked foundation, speculative, hearsay, and conclusory.
• The court sustained Fox’s objections to portions of the Coggins
declaration regarding her views on Stock-Hendel’s work
performance and work demeanor. Fox objected to these
portions as irrelevant and conclusory subjective opinions,
“as Coggins had no role in the decisions at issue,” and
based on Coggins having last worked with Stock-Hendel in
approximately 2007.
• The court sustained objections to the testimony of Ware
indicating that, in his experience, the questions he heard
Stock-Hendel ask were routine.
12
The court did not expressly rule on Stock-Hendel’s
objection to Fox’s submission of a reply compendium, and thereby
presumptively overruled it. (See Reid v. Google, Inc. (2010) 50
Cal.4th 512, 534.)
4. The court’s ruling on Fox’s summary
judgment and adjudication motion
Following a hearing, the court granted Fox’s motion
for summary adjudication as to three issues.1 First, the court
concluded Stock-Hendel “[could not] establish a prima facie case
for age discrimination.” In so concluding, the court noted that
“[i]n reply, defendant Fox . . . provides evidence that all finishing
editors—those whose shifts were eliminated and those who
continued to work as finishing editors—were members of the
protected class.” It also noted that an editor continued to work at
Fox after Stock-Hendel’s termination who was not significantly
younger than Stock-Hendel (specifically, Thannum, who was
16 months younger).
Second, the court concluded Stock-Hendel had failed to meet
his burden of demonstrating a triable issue of fact as to whether
Fox’s proffered reasons for eliminating his shifts were merely a
pretext for age discrimination.
Third, the trial court granted summary adjudication in Fox’s
favor on punitive damages, based on the court’s rulings regarding
the prima facie case and nonpretextual motive.
1 The court also denied as moot the portions of Fox’s motion
concerning two other named Fox entities, and denied summary
adjudication on the issue of the timeliness of Stock-Hendel’s
Department of Fair Employment and Housing complaint regarding
the 2017 reduction of plaintiff ’s shifts. Neither party challenges
these rulings on appeal.
13
Judgment for Fox was entered, and Stock-Hendel timely
appealed.
DISCUSSION
Stock-Hendel has limited the issues on this appeal to
(1) the prima facie finding; (2) the pretext finding; and (3) certain
evidentiary rulings. We conclude that the court did not err in
finding that Fox had met its burden to show that Stock-Hendel
could not establish a prima facie case. Because that finding is
dispositive, we need not consider whether the court erred in its
finding on pretext. As to Stock-Hendel’s evidentiary arguments,
we conclude the court correctly overruled Stock-Hendel’s objection
to the portion of Fox’s reply compendium on which we rely in our
decision. We need not reach the remainder of the evidentiary
arguments Stock-Hendel raises, because even considering the
evidence Stock-Hendel claims was improperly excluded, we would
still affirm the court’s judgment.
A. General Legal Principles Regarding Age
Discrimination Claims and Summary
Judgment
Both federal and state law prohibit employers from
discriminating against employees on the basis of age. (Gov. Code,
§§ 12940, subd. (a) & 12941; 42 U.S.C. § 2000e et seq.; 29 U.S.C.
§ 621 et seq.) “Because of the similarity between state and federal
employment discrimination laws, California courts look to pertinent
federal precedent when applying our own statutes.” (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).)
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
14
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.) Specifically, “California has adopted
the three-stage . . . [¶] . . . McDonnell Douglas [Corp. v. Green
(1973) 411 U.S. 792 . . .] test,” which “reflects the principle that
direct evidence of intentional discrimination is rare, and that such
claims must usually be proved circumstantially. . . . [B]y successive
steps of increasingly narrow focus, the test allows discrimination
to be inferred from facts that create a reasonable likelihood of bias
and are not satisfactorily explained.” (Guz, supra, at p. 354.)
At trial, this “burden-shifting system requires the employee
first establish a prima facie case of age discrimination. If the
employee does so, the employer is required to offer a legitimate
non-age-based reason for the adverse employment action. If it
does not, then the employee prevails. [Citations.] [¶] Given the
varying nature of the problem, it is impossible to make an exact,
all-inclusive statement of the elements of a prima facie age
discrimination case applicable in all situations. [Citations.] The
general requirement is that the employee offer circumstantial
evidence such that a reasonable inference of age discrimination
arises. The requirement is not an onerous one. [Citations.]
[¶] . . . [¶] When the employee has made this showing, the burden
shifts to the employer to go forward with evidence that the adverse
action was based on considerations other than age discrimination.
When the employer offers evidence justifying the adverse action
on a basis other than age, the burden shifts back to the employee
to meet his ultimate obligation of proving that the reason for the
adverse action was age discrimination. This ultimate issue is
15
decided on all the evidence. [Citations.]” (Hersant, supra, 57
Cal.App.4th at pp. 1002–1003.)
“The McDonnell Douglas framework is modified in the
summary judgment context.” (Serri v. Santa Clara University
(2014) 226 Cal.App.4th 830, 861.) On a summary judgment motion
“[i]n an employment discrimination case, . . . [t]he ‘employer, as the
moving party, has the initial burden to present admissible evidence
showing either that one or more elements of plaintiff ’s prima facie
case is lacking or that the adverse employment action was based
upon legitimate, nondiscriminatory factors.’ ” (Zamora v. Security
Industrial Specialists, Inc. (2021) 71 Cal.App.5th 1, 32; see Code
Civ. Proc., § 437c, subds. (c) & (p)(2).)
Whether Fox has met this burden as the defendant in an age
discrimination case presents a question of law for the court, which
we review de novo. (Caldwell v. Paramount Unified School Dist.
(1995) 41 Cal.App.4th 189, 201.) In so doing, we view the evidence
in the light most favorable to Stock-Hendel as the party opposing
the motion. (Lonicki v. Sutter Health Central (2008) 43 Cal.4th
201, 206.)
B. Fox Presented Evidence Fatal to Stock-Hendel’s
Prima Facie Case
In O’Connor v. Consolidated Coin Caterers Corp. (1996)
517 U.S. 308, the United States Supreme Court made clear that
being replaced by someone who is under 40 years old is not an
element of a prima facie age discrimination case, even though
an age discrimination plaintiff must himself be over 40 years.
Specifically, the Court noted that the Age Discrimination
in Employment Act (ADEA), like the FEHA, “does not ban
discrimination against employees because they are aged 40 or
older; it bans discrimination against employees because of their
age, but limits the protected class to those who are 40 or older.
16
The fact that one person in the protected class has lost out to
another person in the protected class is thus irrelevant, so long as
he has lost out because of his age.” (Id. at p. 312, italics omitted.)
In this context, the Court noted that “[a] prima facie case requires
‘evidence adequate to create an inference that an employment
decision was based on a[n] [illegal] discriminatory criterion’ ”
(id. at p. 312, italics omitted), and that “[i]n the age-discrimination
context, such an inference cannot be drawn from the replacement
of one worker with another worker insignificantly younger.” (Id. at
p. 313, italics added.)
Relying on this reasoning, several courts—including our state
Supreme Court—have identified replacement by, or more favorable
treatment for, a “significantly younger” person as an element of a
prima facie age discrimination case, at least in the absence of direct
evidence of discriminatory intent. (See, e.g., Guz, supra, 24 Cal.4th
at p. 366 [noting that there is “no basis to suspect a motive of
prohibited bias” when “an age-protected worker is directly replaced
by a person not significantly younger”]; ibid. [“[i]n the context of a
work force reduction . . . [an age discrimination plaintiff] need only
show, prima facie, that persons significantly younger, but otherwise
similarly situated, were ‘ “treated more favorably” ’ ”]; Grosjean v.
First Energy Corp. (6th Cir. 2003) 349 F.3d 332, 335 [“[i]n age
discrimination cases, the protected class includes all workers at
least 40 years old and the fourth element is modified to require
replacement not by a person outside the protected class, but merely
replacement by a significantly younger person”].) Moreover,
“[a] majority of [federal] circuit courts . . . have held that an
age difference of less than [10] years, without more evidence,
is insufficient to make a prima facie case of age discrimination.”
(France v. Johnson (9th Cir. 2015) 795 F.3d 1170, 1174 (France).)
17
Stock-Hendel points out that “ ‘failure to prove replacement
by a younger employee is “not necessarily fatal” to an age
discrimination claim where the discharge results from a general
reduction in the work force due to business conditions,’ ” and that
courts have treated this requirement with “flexibility.” (See, e.g.,
Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 917
[FEHA case].) But these courts have recognized such flexibility
on the basis that replacement by a significantly younger worker
is only one possible basis on which a court could infer “that the
[challenged employment action] occurred under circumstances
giving rise to an inference of age discrimination,” which is the
ultimate requirement of a prima facie age discrimination case.
(Rose v. Wells Fargo & Co. (9th Cir. 1990) 902 F.2d 1417, 1421;
see Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th
1735, 1755 [“[t]he purpose of the prima facie case is for the plaintiff
to produce evidence demonstrating that the employment decision
occurred in ‘circumstances which allow the court to infer unlawful
discrimination’ ”].) Thus, whether or not replacement by a
significantly younger employee is a formal element of an age
discrimination claim, the law is clear that a plaintiff cannot
establish discriminatory intent at the prima facie stage solely
by showing the employer replaced the plaintiff with an individual
not significantly younger than the plaintiff or by showing the
employer’s disparate treatment of plaintiff and an individual not
significantly younger than the plaintiff.
This line of cases is highly relevant to the instant appeal,
because the theory underlying Stock-Hendel’s prima facie case
relies entirely on other finishing editors’ ages relative to his own,
and how each editor’s shift changes in 2017 and 2018 line up
with those age differences. Namely, Stock-Hendel argues that
an inference of age discrimination arises from the circumstances
18
of his firing, because Fox chose him, the oldest of the 10 finishing
editors, as well as another of the oldest finishing editors (Williams),
to lose all shifts in 2018. He further argues that in 2017, Fox
reduced the shifts of the oldest finishing editors more than it
reduced the shifts of the other finishing editors. To support this
aspect of his prima facie case, Stock-Hendel relies on his declared
estimates regarding the ages and relative ages of the relevant
finishing editors as a group, which he acknowledged at the hearing
before this court are generally consistent with—although far less
specific than—the specific ages of each relevant editor contained in
the Morales declaration.
At this point in our summary judgment analysis, we must
pause to address Stock-Hendel’s challenge to the court’s implicit
overruling of his objection to the reply compendium, at least to
the extent that the compendium contains the Morales declaration.
We conclude the court did not abuse its discretion in
implicitly overruling this objection to the extent doing so allowed
Fox to offer the Morales declaration for the first time on reply. In
Fox’s original motion, the basis on which Fox sought to establish
Stock-Hendel could not make a prima facie showing of
discriminatory intent was not the relative ages of the other
finishing editors, but Stock-Hendel’s testimony that he had never
heard any discriminatory comments regarding age, and that Fox
had repeatedly hired him for years while he was in his 60’s. In
opposing the motion, Stock-Hendel did not dispute any of this
evidence. Rather, he argued that the relative ages of the finishing
editors and how the shift reductions/eliminations affected them, not
any discriminatory comments, provided the “something more” on
which Stock-Hendel’s prima facie case relied to support an inference
of discriminatory intent. To rebut this, Fox submitted the Morales
declaration, which contained more precise information about the
19
ages and jobs of the finishing editors. Although Fox had the burden
in its initial motion, it had the burden of proving a negative—that
Stock-Hendel could not establish discriminatory intent in any way,
on any basis. Denying Fox the ability to offer evidence on reply
that Stock-Hendel had not established discriminatory intent in a
way Stock-Hendel raised for the first time in its opposition would be
to require Fox to anticipate and counter every possible way Stock-
Hendel might attempt to make his prima facie case. The court
acted within its discretion in declining to require this and instead
considering the Morales declaration as proper rebuttal evidence
over Stock-Hendel’s objection. We consider it in our analysis as
well.
Returning to our summary judgment analysis, we note that
Stock-Hendel’s status as the oldest finishing editor in the group
of finishing editors at Fox in 2017 and 20182 (and the status of
Thannum and Williams as the second and third oldest, respectively)
is evidentially insignificant, given the size of that group. That
group was comprised of at most 10 people—seven regularly
scheduled editors, and three “fill-in” editors. “[W]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 minuscule to demonstrate a statistically reliable discriminatory
pattern.” (Guz, supra, 24 Cal.4th at p. 367; see Rose, supra, 902
F.2d at p. 1423 [where a plaintiff chooses to rely solely on statistical
evidence to carry his prima facie burden, “ ‘[he] must show a stark
pattern of discrimination unexplainable on grounds other than
age’ ”]; Diaz v. Eagle Produce Ltd. Partnership (9th Cir. 2008) 521
2Neither party questions that the same finishing editors
who worked for Fox at the time of the shift reductions in 2017 also
worked for Fox at the time of the 2018 shift reductions/eliminations.
20
F.3d 1201, 1209 (Diaz) [16-employee pool disregarded as insufficient
to support inference of discrimination]; Sengupta v. Morrison-
Knudsen Co. (9th Cir. 1986) 804 F.2d 1072, 1076 [disregarding
evidence that, in a 28-employee pool, four of five African-Americans
were laid off, as insufficient to establish prima facie age
discrimination because “ ‘ “statistical evidence derived from an
extremely small universe” . . . “has little predictive value and must
be disregarded” ’ ”].)
But even setting aside the size of the finishing editor pool,
the evidence Fox presented on summary judgment prevents us
from inferring discriminatory intent from Fox’s treatment of
Stock-Hendel as compared to its treatment of other finishing editors
in that pool. Namely, the evidence of the specific ages and shift
reductions of finishing editors reflects that some of the editors who
lost fewer shifts than did Stock-Hendel in 2017, were “significantly”
younger than Stock-Hendel—but some were not. Similarly, some of
the finishing editors who continued to be employed at Fox following
the 2018 shift reductions were significantly younger than Stock-
Hendel, but some—in particular Thannum, who was 65 years at
the time, only 16 months younger than Stock-Hendel—were not.
(See cf. France, supra, 795 F.3d at p. 1174 [eight-year average
age difference between plaintiff and younger employees favored for
promotion would have been insufficient even to support prima facie
case under ADEA, had age difference not been bolstered by other
evidence].)
Our conclusion is bolstered by the fact that the difference
between the average age of finishing editors retained in 2018 and
the average age of those terminated—11.125 years3 —is just barely
3 The average age of the finishing editors terminated in 2018
(Stock-Hendel and Williams) was 65 years. The editors retained
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at the threshold amount of time courts begin to consider potentially
significant (at least where, as here, there is no other evidence
supporting intent). (See France, supra, 795 F.3d at p. 1174
[adopting presumption that less than 10-year difference
presumptively insignificant]; Diaz, supra, 521 F.3d at p. 1209
[“[t]hat the average age of the workers hired during the two-year
period is approximately nine and a half years younger than the
average age of those laid off—38.75 versus 48.4 years—also fails to
justify an inference of age discrimination”].) “The disparity is not
so stark as to suggest bias rather than pure chance.” (Ibid.) This
comparison becomes even less impressive when one segregates
and compares the treatment of only those truly “similarly situated”
to Stock-Hendel—namely, regularly scheduled finishing editors,
rather than both regularly scheduled and fill-in editors. The
average age of regularly scheduled editors retained in 2018 was
56.2 years, whereas the average age of those terminated in 2018
is 65 years, reflecting a presumptively insignificant difference of
8.8 years.
Under California Supreme Court precedent, mere age
comparisons between Stock-Hendel and the handful of other
finishing editors Fox retained in 2018 and /or whose shifts Fox
reduced to a lesser degree than it did Stock-Hendel’s in 2017,
cannot alone support a reasonable inference of age discrimination.
(See Guz, supra, 24 Cal.4th at p. 369 [employer’s alleged disparate
treatment of plaintiff and two younger workers, one eight years
younger and the other six years younger, did not support reasonable
inference of age discrimination, in absence of independent
in 2018 were Frederick, Thannum, Ware, Yount, Cooper, Reichlin,
Way, and Cheung. The average age of that group was 53.875 years.
22
indication decision maker considered their age differences
significant].)
Nor has Stock-Hendel identified any other evidence
suggesting discriminatory intent. In arguing to the contrary,
Stock-Hendel points to certain evidence that is also relevant to
the issue of pretext. Specifically, he argues that evidence regarding
his capabilities as an editor and Fox’s failure to formally censure
him regarding his performance, when combined with what Stock-
Hendel characterizes as weak evidence that Stock-Hendel was
less capable than other finishing editors, render Fox’s claim that
its employment decisions were based on Stock-Hendel’s work
performance implausible, and that this implausibility supports
an inference of discriminatory intent at the prima facie stage.
We conclude that, as a matter of law, the evidence does not
support an inference of discriminatory intent in this way. A
reasonable trier of fact could not find based thereon that it was
implausible Fox chose to eliminate Stock-Hendel’s shifts as part of
cost-cutting measures because of his capabilities relative to those
of the other finishing editors. (See Hersant, supra, 57 Cal.App.4th
at p. 1005 [employee “ ‘must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them “unworthy
of credence” ’ ”].) First, evidence that Stock-Hendel’s previous
supervisors did not take issue with his work in and before 2016
does not support a reasonable inference that, in 2017 and 2018,
it was implausible for the lead room producer (DiPietro) to take
issue with it. Second, that Stock-Hendel never received a negative
performance review, and/or that Morales never counseled him
regarding his performance, also cannot support a reasonable
inference that Fox’s stated motivation was implausible, as Stock-
23
Hendel suggests its can. Finishing editors did not receive any
formal performance reviews. And that Fox had not previously
experienced sufficient problems with Stock-Hendel’s work to refer
the issue to Morales, or that Stock-Hendel was generally good at his
job, are not bases on which a jury could reasonably conclude it is
implausible that, as part of an effort to cut costs—something Stock-
Hendel does not dispute was occurring—Fox cut Stock-Hendel’s
shifts, as opposed to those of some other finishing editor, because
DiPietro felt Stock-Hendel was slower than other finishing editors
(rather than being generally slow or bad at his job). (See Foroudi v.
The Aerospace Corp. (2020) 57 Cal.App.5th 992, 1010 [“because
[employee] was laid off as part of a company-wide reduction in force,
the fact that he was terminated for minor issues alone does not
raise an inference of age discrimination”].) Finally, DiPietro’s
deposition testimony does not, as Stock-Hendel argues, support a
reasonable inference that DiPietro’s declared concerns about Stock-
Hendel were “false.” The deposition testimony Stock-Hendel points
to reflects that DiPietro was unable to estimate the exact amount
of time Stock-Hendel spent asking questions, that DiPietro did not
recall whether he identified this as a problem to others, and that
DiPietro instead recalled only “ ‘venting’ ” to his colleagues about it.
None of this testimony contradicts DiPietro’s declaration or
supports a reasonable inference that it is false—especially where,
as noted, it is undisputed that Fox did not have a formal review
process for finishing editors.
In sum, even considering, as Stock-Hendel argues we should,
evidence the court primarily considered at the pretext stage, and
even though the burden on an age discrimination plaintiff is
“ ‘not onerous’ ” at the prima facie stage (Guz, supra, 24 Cal.4th
at p. 355), Fox has established that Stock-Hendel cannot meet this
burden. (See Hersant, supra, 57 Cal.App.4th at p. 1002 [prima
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facie case requires, at a minimum, that the “employee offer
circumstantial evidence such that a reasonable inference of age
discrimination arises”].) The court did not err in granting Fox
summary adjudication on the issue. Under the McDonnell Douglas
framework, this is an independently sufficient basis for affirming
the judgment.
C. Stock-Hendel’s Evidentiary Arguments
Because the only portion of the reply compendium on which
we rely is the Morales declaration, we need only consider whether
the court erred in presumptively overruling an objection to that
portion of the reply compendium. We conclude above that the
court did not abuse its discretion in presumptively overruling
Stock-Hendel’s objections to the reply compendium to the extent
it contained the Morales declaration.
We decline to reach Stock-Hendel’s remaining evidentiary
objections, because even if Stock-Hendel is correct and the court
improperly excluded and/or improperly permitted the various pieces
of evidence he identifies, none of it would change our analysis on
appeal.
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DISPOSITION
The judgment is affirmed. Respondent is awarded its costs
on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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