St. Hubert v. Fox Corporation CA2/2 ( 2023 )

Filed 12/22/23 St. Hubert v. Fox Corporation CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
FRITZGERARD ST. HUBERT, B322737
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV38145)
FOX CORPORATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jon R. Takasugi, Judge. Affirmed.
Valencia & Cywinska, Mark Joseph Valencia and Izabela
Cywinska Valencia for Plaintiff and Appellant.
Seyfarth Shaw, Candace Bertoldi and Robin E. Devaux for
Defendant and Respondent.
_________________________________________
A temporary service agency assigned appellant Fritzgerard
“Joey” St. Hubert to work at respondent Fox Corporation in
information technology (IT). After 10 weeks, Fox told the agency
that it no longer wanted his services. The next day, St. Hubert
notified Fox that he has epilepsy. Fox ended his services two
days later. He sued Fox for failing to accommodate a disability,
retaliation, and wrongful termination under the California Fair
Employment and Housing Act (FEHA). (Gov. Code, § 12900
et seq.)1 The trial court granted summary judgment to Fox.
On de novo review, we conclude that no triable issues of
fact exist. There was nothing to accommodate because St. Hubert
admitted that epilepsy did not interfere with his work at Fox.
His disclosure of epilepsy after Fox decided to end his services
belies a claim of retaliation. Coworkers testified that he was let
go because he did not get along with others and his performance
was unsatisfactory. We affirm the judgment.
FACTS
St. Hubert’s Agreement With TenTek
St. Hubert signed an Agreement For Temporary Employee
Services with TenTek Corporation, an IT staffing agency. He was
“a temporary, hourly paid, exempt employee of TenTek,” which
“arrange[d] to introduce [him] to clients who may require
temporary consulting services.” TenTek assigned him to Fox as
an “end user support technician.” Fox needed IT staff while
adapting to remote work during the COVID pandemic. TenTek
billed Fox for its contractors’ time.
Fox could end St. Hubert’s assignment at any time, without
notice. It had the option to hire him at the end of the six-month
1 Undesignated statutory references are to the Government
Code, unless otherwise indicated.
2
consulting term. St. Hubert agreed, in writing and at deposition,
that he was “not an employee of Fox, but rather being retained as
an independent contractor.” He later testified that he believed he
was a Fox employee.
St. Hubert Begins at Fox
On June 8, 2020, St. Hubert began his assignment at Fox.2
On July 7, he was admonished by Fox supervisor Stuart Bourke
and Vice-president of Technology Carl Johnson, for failing to
return a computer to a Fox employee. They were concerned by
his lack of attention to detail.
On July 20, Bourke e-mailed the IT team to commend their
“progress on the IT room [ ] and all your efforts to support our
end users. There have been a few minor issues with workload
distribution and priority and this is where I see a need for a lead
to ensure we continue with the great work done so far. I am
asking [St. Hubert] to assume team lead responsibilities as we
transverse [sic] this ever-changing work environment during
these times, this will be reviewed on a monthly basis as we seek
to optimize our team’s service delivery.” Bourke would look to St.
Hubert “to ensure we are adhering to deadlines and prioritizing
workload.”
Bourke named St. Hubert as lead person because he was
the most experienced person on a new team and claimed
expertise in asset management. He was expected to take
requests from Fox employees and distribute them to the team
evenly. There was no pay increase because he was not a Fox
employee. St. Hubert viewed it as a promotion. Bourke referred
to it as a promotion in a message to Johnson, saying “the team
2 All dates referenced in this opinion are to the year 2020,
unless otherwise indicated.
3
needs direction.” Johnson wrote to compliment the entire team
on their work.
Fox Receives Complaints About St. Hubert
On July 16, End User Support Manager Jared Zabel wrote
Bourke about a “ ‘negative workplace interaction’ ” with St.
Hubert, who was “ ‘rude and condescending’ ” and made Zabel
“ ‘extremely uncomfortable.’ ” Bourke thought they were just
“bumping heads” but later saw a pattern of negative interactions
between St. Hubert and members of the IT team.
Bourke wrote that IT staff “ ‘all hate Joey’ ”—he made their
job difficult by insisting they sit in meetings instead of
completing tasks. Bourke met with team members John Avila,
Jose Gonzalez, Javier Hernandez, and William Nunez. They
described the difficulty of working with St. Hubert.
Team member Avila avers that St. Hubert was “brash,
manipulative, and controlling, for no apparent reason. He did
not listen to me and spoke in a condescending way.” He made
things so difficult that team members complained to Bourke.
Avila told Bourke that St. Hubert made him “uncomfortable and
was treating me in a demeaning way.” St. Hubert responds that
as Avila’s supervisor, he was entitled to control him; he denies
being brash or manipulative.
Gonzalez avers that St. Hubert wasted time by requiring
long daily meetings to discuss unnecessary issues, spoke “in a
mocking, overly exaggerated tone,” and made Gonzalez look bad
by preventing him from expediting delivery of computers to Fox
employees. St. Hubert micromanaged team members but did not
seem to do any work himself or respond to messages. Gonzalez
and others complained to Bourke that St. Hubert made their jobs
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difficult and created a hostile environment. St. Hubert declares
that daily meetings were Bourke’s idea.
Hernandez declares that St. Hubert did not do day-to-day
work or answer questions. It was difficult to work with St.
Hubert, who did not listen and rejected ideas even though
Hernandez had two years of experience at Fox. St. Hubert led
meetings but otherwise sat around. He did not establish a
procurement system, respond to requests for equipment, and
ignored Bourke’s directions. Hernandez expressed concerns
about St. Hubert to Bourke.
Fox Decides It No Longer Wants St. Hubert’s Services
In August, Bourke decided to end St. Hubert’s work at Fox
over concerns about his performance and communication style.
He did not complete tasks, follow instructions, or pay attention to
detail. Team members complained about him. His resume
claimed asset management experience, but Bourke saw no
evidence of it. For Bourke, “The main issue [was] his inability to
perform the duty that he was sent to us by TenTek to complete.”
Bourke wanted Javier Hernandez to take over. On
August 11, while on vacation, Bourke e-mailed St. Hubert asking
him to train Hernandez on asset management and workflows.
On August 12, Fox Vice-president Johnson met with St. Hubert,
who “did not have good or correct answers for a lot of my
questions.” Johnson sent St. Hubert a list of actions to complete;
Bourke was upset because he had already covered the very same
action items with St. Hubert. On August 13, Johnson was
displeased when St. Hubert failed to execute a simple task for a
Fox executive without error. Johnson wrote Bourke, “You can
move on from Joey . . . .”
5
On August 14, St. Hubert prepared a spreadsheet after
Bourke told him not to do so. Bourke wrote Johnson that he
wanted Hernandez to take over from St. Hubert. Johnson wrote,
“ ‘Get rid of him, then.’ ” Bourke replied, “ ‘Hence the need for
him to hand over his tasks.’ ” Bourke testified that he meant,
“I’m getting rid of him” and “I’m ending his contract.” Johnson
testified that they did not terminate St. Hubert that day because
Bourke was on vacation and IT services would be impacted.
On August 18, Bourke wrote TenTek Vice-president Joe
Elizondo that they needed “to have a chat about Joey.” They
discussed St. Hubert’s contract with Fox. Elizondo recalled that
Bourke felt St. Hubert did not fit on the team and described
communication issues. Because St. Hubert was in the process of
handing over his responsibilities and a replacement IT person
was needed, Fox and TenTek tentatively agreed that he would
leave by the end of August.
On August 17–18, St. Hubert tried to see Bourke in person.
Bourke was busy or working remotely. St. Hubert wrote Bourke
that progress was being made “but something seems off.” Bourke
replied that he was catching up after vacation.
St. Hubert Discloses His Medical Condition
On August 19, St. Hubert wrote Bourke and Johnson, “This
topic is much better suited for an in person conversation, but I
must share with you as soon as possible. I have been recently
diagnosed with epilepsy. Now, with insurance, I am working
with a doctor to prevent additional seizures. I’ve discussed this
in depth with the team and will continue to develop contingency
plans to mitigate a crisis and/or handle in the most appropriate
manner.”
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St. Hubert believes his message sought accommodations.
He declares that Fox could have provided a worksite redesign,
padding, rest breaks, schedule adjustments, written instructions
to address memory lapses, a crisis plan, task rotation, and
lighting changes. He did not ask for anything but expected Fox
to initiate discussions with him, once he disclosed his condition.
He does not explain how these items were necessary to enable
him to perform the essential functions of his job.
Bourke did not respond because he had already decided to
end St. Hubert’s stint at Fox. He viewed the message as “an
informational email. There was [sic] no requests made.” Johnson
had a similar view.
Bourke wrote Johnson to ask if the epilepsy e-mail changed
anything. Johnson replied, “Not as far as I am concerned, unless
there is a drastic improvement in performance. It may explain
his change in behavior, as even Joe said he’s a totally different
person.” Bourke did not believe that epilepsy affected St.
Hubert’s performance at work. Johnson felt the epilepsy
disclosure did not matter because Fox had already decided to end
St. Hubert’s contract.
St. Hubert Testifies that Epilepsy Did Not Interfere with
His Work at Fox
In January 2019, St. Hubert had a seizure; he was taken to
the hospital but testified that he “shrugged it off.” In January
2020, he had another episode and was diagnosed with epilepsy.
He takes medication to mitigate the risk of seizures and makes
sure to get enough sleep and avoid flashing lights.
At deposition, St. Hubert was asked, “Other than when you
have a seizure, you don’t feel that your epilepsy interferes with
your daily activities?” He replied, “Thankfully, no. I’m able to
operate like a fully functioning adult.” The next question was,
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“Did your epilepsy interfere with your ability to do your job
between June 2020 and August 21, 2020, [while] you were placed
at Fox?” He replied, “No. No.”
While at Fox, St. Hubert took a sick day, testifying that he
had food poisoning. At the time, he told Elizondo “he ate
something” that upset his stomach. Bourke told him not to come
in if he was unwell. In a declaration, St. Hubert claims he had
food poisoning and a seizure on August 10; however, he testified
that he did not tell this to Bourke. His girlfriend declares that
she heard he had a seizure but did not witness it. She alerted
Bourke that St. Hubert was unwell but did not disclose that he
has epilepsy.
It is undisputed that St. Hubert never had a seizure while
working on site at Fox. He did not tell TenTek or Fox’s human
resources department about his epilepsy; Bourke and Johnson
were unaware of it until they received the August 19 e-mail. St.
Hubert told other TenTek contractors on his team of his condition
on August 17. They did not tell Fox because it was not their
place and he did not ask them to do anything.
To dispute Fox’s claim that he had no work limitations
from epilepsy while at Fox, St. Hubert declared in opposition to
summary judgment that epilepsy affects his life and substantially
limits his ability to work because a seizure is unexpected and
incapacitating. During a seizure at a workplace in 2019 (not at
Fox), he was taken to the hospital.
Human resources expert Regina Romeo declared that the
limitations of an employee with epilepsy are “open, obvious and
apparent to the employer.” It is “self-evident” because “epilepsy
involves seizures,” creating an immediate urgency to interact
with and accommodate the employee.
8
St. Hubert’s Employment at Fox Ends
On August 21, Bourke wrote Johnson that team members
complained about St. Hubert, adding, “I need to sort this out
today.” He did not take St. Hubert’s epilepsy into account.
Johnson told Bourke to “end him today.” St. Hubert declares that
Fox “fail[ed] to recognize that the epileptic medication had been
making me feel ‘cloudy’ and was affecting my personality” or that
he had a seizure 11 days earlier. He did not tell anyone at Fox
that he felt “cloudy,” was affected by medication, or had a seizure.
Bourke asked TenTek to remove St. Hubert from Fox.
TenTek complied. Elizondo called St. Hubert at the end of his
shift to say it was his last day at Fox, which St. Hubert described
as “a complete surprise.” St. Hubert did not speak to Bourke or
Johnson. His complaint alleges that Elizondo told him there was
a communication breakdown. St. Hubert declares that he was
“an exemplary employee” and the only reason he was terminated
was because of his epilepsy, which Fox ignored and did not
accommodate.
Elizondo wrote a TenTek colleague that Fox let St. Hubert
go due to “his communication style and behavior.” After team
members said they “could no longer handle Joey’s authoritative
style of leading them,” Fox felt “it was best to release him.” The
message does not mention epilepsy. Fox agreed to pay St. Hubert
until the end of August.
On August 21, when he was released from Fox, St. Hubert
texted his team, “I wish you nothing but the best in your journey.
My line is always open. No hard feelings.” On August 22, he
e-mailed Fox’s Bourke, Johnson and Garrett Boss, along with
Elizondo at TenTek, to say, “I will be analyzing this experience to
understand better what went wrong. . . . [T]hank you for the
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opportunity of a lifetime. Not a single hard feeling. Not one. . . .
From the very bottom of my heart, and with the utmost sincerity,
Thank you ever so kindly!” On September 10, St. Hubert wrote
TenTek that “the work I did for Fox gave me a whole new
confidence and perspective, an amazing opportunity.” Since
leaving Fox, he has not disclosed his epilepsy to subsequent
employers.
PROCEDURAL HISTORY
St. Hubert alleges that he obtained a right-to-sue letter
from the Department of Fair Employment and Housing in
September 2020.3 His lawsuit alleges causes of action for
disability discrimination; wrongful termination; retaliation; and
failure to prevent unlawful conduct. Fox moved for summary
judgment. St. Hubert opposed the motion.
The court granted the motion. It found that St. Hubert
“had a history of performance and interpersonal issues.” Fox
decided to terminate him—and another person was being trained
to replace him—before he disclosed his epilepsy diagnosis. He
never requested accommodations and none were required
because St. Hubert mitigated the risk of seizure with medication.
Moreover, he testified that his condition never interfered with his
ability to do his job.
The court found St. Hubert did not show that the decision
to terminate him was based on his disclosure of epilepsy. Other
team members disliked his way of dealing with them. Fox did
3 Although the right-to-sue letter is not attached to the
pleading, Fox does not contest that St. Hubert exhausted his
administrative remedy. (§§ 12960, 12965; Pollock v. Tri-Modal
Distribution Services, Inc. (2021) 11 Cal.5th 918, 931; Hon v.
Marshall (1997) 53 Cal.App.4th 470, 475.)
10
not have to engage in the interactive process because he never
requested an accommodation and epilepsy did not affect his work.
He did not tell Fox his medication made him feel “cloudy” or
affected his personality. Medical reports show no seizures from
January to December 2020, during his assignment at Fox. No
triable issues were raised. The court entered judgment for Fox.
DISCUSSION
1. Appeal and Review
The judgment is appealable. (Code Civ. Proc., § 904.1.,
subd. (a)(1).) Summary judgment is appropriate when no triable
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
We independently examine the record to determine if triable
issues of fact exist. (Johnson v. American Standard, Inc. (2008)
43 Cal.4th 56, 64.) Evidence presented in opposition to summary
judgment is liberally construed. (Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 618.)
2. Claim of Failure to Accommodate a Disability
St. Hubert contends that the court erred by granting
summary judgment on his second cause of action, which alleges
that Fox discriminated against him by failing to accommodate his
disability. (§ 12940, subd. (m).) Summary judgment was
properly granted because there is no triable issue as to whether
Fox failed to accommodate him.
A claim of failure to accommodate requires a showing that
(1) the employee has a disability covered by FEHA, (2) the
employee can perform the essential functions of the position with
a reasonable accommodation, and (3) the employer failed to
accommodate the disability. (Brown v. Los Angeles Unified
11
School Dist. (2021) 60 Cal.App.5th 1092, 1107–1108.)4 St.
Hubert showed that he has a disability covered by FEHA. Fox
does not contest that epilepsy is listed as a disability in FEHA.
(§ 12926.1, subd. (c); Cal. Code Regs., tit. 2, § 11065, subd.
(d)(2)(C).) The first element of the claim is satisfied.
As to the second element, St. Hubert agrees that he can
perform his job despite having epilepsy. His testimony proves he
had no limitations. Asked if epilepsy interferes with daily
activities, he answered, “No. I’m able to operate like a fully
functioning adult.” He specifically denied that epilepsy ever
interfered with his work at Fox. Quite simply, he did not require
accommodations to perform the essential functions of his job.
St. Hubert’s testimony is “ ‘a clear and unequivocal
admission by the plaintiff, himself, in his deposition’ ” negating
the existence of a triable issue of fact. (D’Amico v. Board of
Medical Examiners (1974) 11 Cal.3d 1, 21 (D’Amico).) On
summary judgment, such an admission “is entitled to and should
receive a kind of deference not normally accorded evidentiary
allegations in affidavits.” (Id. at p. 22.)
Aware that his testimony did not assist his case, St. Hubert
declares that epilepsy “definitely has caused not only limitations
in my life, but substantial limitations. It has also caused
substantial limitations in my ability to work.”
4 St. Hubert’s reply notes that he must prove he was
harmed to prevail on his claim. The parties do not address the
issue, but it is difficult to see how St. Hubert was harmed by lack
of accommodation in the two days between his disclosure of
epilepsy to Fox supervisors and the cessation of his assignment;
he had no seizure in that brief period.
12
Discovery admissions cannot be contradicted by “ ‘self-
serving declarations of a party.’ [Citations.] In a nutshell, the
rule [in D’Amico] bars a party opposing summary judgment from
filing a declaration that purports to impeach his or her own prior
sworn testimony.” (Scalf v. D. B. Log Homes, Inc. (2005) 128
Cal.App.4th 1510, 1521–1522.) In short, “After-the-fact attempts
to reverse prior admissions are impermissible because a party
cannot rely on contradictions in his own testimony to create a
triable issue of fact.” (Thompson v. Williams (1989) 211
Cal.App.3d 566, 573; Roddenberry v. Roddenberry (1996) 44
Cal.App.4th 634, 653.)
Apart from admitting his work was unaffected, St. Hubert
never informed Fox of limitations. “ ‘The duty of an employer
reasonably to accommodate an employee’s handicap does not
arise until the employer is “aware of [the employee’s] disability
and physical limitations.” ’ ” (Prilliman v. United Air Lines, Inc.
(1997) 53 Cal.App.4th 935, 949–950.) “ ‘An employee cannot
demand clairvoyance of his employer.’ [Citation.] ‘ “Where the
disability, resulting limitations, and necessary reasonable
accommodations, are not open, obvious, and apparent to the
employer,” ’ the employee bears the burden ‘ “to specifically
identify the disability and resulting limitations, and to suggest
reasonable accommodations.” ’ ” (Doe v. Department of
Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738–739
(Doe) [applying § 12940, subd. (m)].) Only the employee
understands a physical or mental condition well enough to
disclose limitations requiring accommodation. (King v. United
Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443 [employee
cannot “secretly want[ ] a particular accommodation and sue the
employer for not providing it”].)
13
St. Hubert’s disability was not open, obvious, or apparent.
He never had a seizure while working at Fox; never told Fox that
medication clouds his judgment or affects his personality; and did
not disclose limitations.5 At most, St. Hubert revealed the bare
fact of his epilepsy diagnosis after Fox notified TenTek of its
intent to end his assignment.
Merely disclosing a disability is not enough. Employers
must “ ‘accommodate limitations, not disabilities.’ ” (Scotch v. Art
Institute of California (2009) 173 Cal.App.4th 986, 1013.)
Accommodation means (1) making existing facilities accessible
and usable or (2) job restructuring, modified schedules, job
reassignment, modification of equipment or training, provision of
interpreters, and similar means. (§ 12926, subd. (p).) St. Hubert
does not explain how the accommodations listed by statute would
help him, as he did not identify any work limitations. Indeed, he
testified that he did not disclose his epilepsy to his current
employer: It undermines his claim that Fox wrongfully failed to
accommodate him when he continues not to seek accommodation
for the same medical condition even now.
3. Retaliation Claim
St. Hubert argues that the court erroneously granted
summary judgment on his fourth cause of action for retaliation.
His pleading cites section 12940, subdivision (h), making it
unlawful for an employer “to discharge, expel, or otherwise
discriminate against any person [who] has opposed any practices
5 The declaration of human resources expert Romeo does
not assist St. Hubert. She opines that epilepsy is open, obvious,
and apparent because it involves seizures. St. Hubert’s condition
was not self-evident because the undisputed evidence shows he
never had a seizure at Fox.
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forbidden under this part or . . . filed a complaint, testified, or
assisted in any proceeding under this part.”
A claim of retaliation has three elements. First, the
employee must establish a prima facie case of retaliation.
Second, the employer must articulate a legitimate nonretaliatory
reason for its conduct. Third, the employee must show the
employer’s reason is pretextual. (Flait v. North American Watch
Corp. (1992) 3 Cal.App.4th 467, 476.) A prima facie case requires
the employee to show protected activity; an adverse employment
action; and a causal link between the employee’s protected
activity and the employer’s action. (Ibid.; Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1042.) St. Hubert alleges that
Fox retaliated for his “participating in a protected activity, such
as disclosing his/her disability or seeking . . . accommodations, or
seeking to engage in the interactive process.”
Under the plain language of the statute, St. Hubert has not
shown he engaged in protected activity because he “opposed any
practices forbidden” by FEHA or “filed a complaint, testified, or
assisted in any proceeding” under FEHA. (§ 12940, subd. (h),
italics added; Heath v. AT&T Corp. (N.D.Cal. Sept. 12, 2005,
No. C-05-0719 VRW) 2005 U.S.Dist. Lexis 34334, *25–*26
[retaliation not alleged where employee did not show he was
discharged for opposing practices forbidden by FEHA or for
participating in a FEHA proceeding, but “simply alleges that [he]
was fired because [he] was disabled”].)
St. Hubert did not “oppose” Fox’s refusal to accommodate a
disability. He never requested accommodation. Merely knowing
of a disability did not put Fox on notice that accommodation was
required. (Doe, supra, 43 Cal.App.5th at pp. 738–739.) Not until
15
this litigation did he reveal a blackout, and perhaps a seizure,
occurring at home on August 10.
St. Hubert cites section 12940, subdivision (m)(2), which
forbids retaliation “against a person for requesting
accommodation.” Once again, St. Hubert did not request
accommodation. Instead, he indicated that he was developing an
appropriate crisis mitigation plan.
No reasonable inference can be drawn that Fox retaliated
against St. Hubert for disclosing epilepsy. Eight days before his
disclosure, Bourke directed him to train Hernandez on his tasks.
Five days before his disclosure, Fox Vice-president Johnson told
Bourke to “get rid of” St. Hubert; Bourke replied that St. Hubert
still needed “to hand over his tasks.” One day before his
disclosure, Bourke and Elizondo at TenTek had “a chat about
Joey.” They agreed he would leave Fox that month after training
his replacement. His termination was underway before his
disclosure, refuting his claim that it was a newly minted response
to his disclosure.
The evidence shows mounting problems with St. Hubert’s
performance and complaints from colleagues. As early as July,
he failed to return a computer to a Fox employee and another
employee complained of his “rude and condescending” behavior.
By August, Bourke observed that St. Hubert did not complete
tasks, follow instructions, pay attention to detail, or have the
experience claimed in his resume. Johnson was displeased that
he “did not have good or correct answers” and failed to execute a
simple task for a Fox executive. Team members felt he was
condescending, demeaning, manipulative, and made their jobs
difficult. He did not produce work or respond to messages, and
was ineffectual.
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St. Hubert’s efforts to show pretext fall short of a viable
FEHA claim.
He cites the two-day gap between his disclosure and his
termination as proof of retaliation. “[T]emporal proximity by
itself . . . is not adequate to show pretext.” (Arteaga v. Brink’s,
Inc. (2008) 163 Cal.App.4th 327, 357 [employee fired days after
filing worker’s compensation claims].) He does not deny that he
was admonished a month after starting at Fox, or alienated
coworkers. Given the evidence of nonretaliatory reasons to
terminate, the proximity of his termination to his disclosure does
not create a triable issue of fact on summary judgment. (Ibid.)
St. Hubert’s declaration describing his work as exemplary
does not suffice because “an employee’s subjective personal
judgments of his or her competence alone do not raise a genuine
issue of material fact.” (Horn v. Cushman & Wakefield Western
(1999) 72 Cal.App.4th 798, 816.) Fox gave St. Hubert a lead
position because he was the most experienced person on a new
young team but qualified the appointment by saying it would be
reviewed monthly to optimize productivity; no pay raise was
given. Matters quickly went downhill after he became leader of a
team that found him controlling, difficult, and obstructionist.
Bourke e-mailed that it was not one disgruntled team member;
instead, “they all hate Joey.” Pretext is not shown by Fox’s
determination that he was not a good fit with the IT team, even if
it seems “one-sided” to him.
No evidence supports St. Hubert’s claim that no other team
members were released; assuming that it is true, no evidence
shows that they caused problems. He speculates that Johnson’s
August 14 directive to “get rid” of St. Hubert only applied to his
lead position, not to his contract at Fox. This is not a reasonable
17
inference. Bourke testified, without contradiction, that he
intended to “get rid” of St. Hubert by “ending his contract,” not
just the lead position.
After St. Hubert’s epilepsy disclosure, Johnson wrote
Bourke that it did not change the decision to terminate later that
month, unless St. Hubert’s performance “drastically improved.”
Far from supporting St. Hubert’s claim of pretext, the message
shows that Johnson was open to continuing the contract after the
disclosure. However, after Johnson wrote the message, matters
worsened when team members came forward to complain about
St. Hubert, causing Bourke to move up the termination date.
St. Hubert cites Johnson’s August 12 list of action items for
completion by the end of September as proof that Fox was happy
with his work and did not contemplate ending his assignment
until after he disclosed his epilepsy. The message went to St.
Hubert as leader of the IT team; it does not state that others
could not fulfill the tasks. In fact, Bourke’s response states that
Hernandez was working on them. Nor does it disprove that Fox
supervisors subsequently decided to get rid of St. Hubert, before
he disclosed his epilepsy.
4. Derivative and Punitive Damages Claims
St. Hubert agrees that his causes of action for wrongful
termination and failure to prevent discrimination derive from his
FEHA claims. As discussed above, his FEHA claims were
properly dismissed. As a result, his derivative claims cannot
proceed, nor can his claim for punitive damages go forward.
Finally, his brief does not address his first cause of action,
forfeiting the claim.
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DISPOSITION
The judgment is affirmed. Respondent is entitled to
recover its costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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