Filed 12/21/22 Williams v. Fox Networks Engineers and Operations CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

PATRICK WILLIAMS,

Plaintiff and Appellant,

v.

FOX NETWORKS ENGINEERS AND 

OPERATIONS et al., 

Defendants and Respondents.

 B309868

 (Los Angeles County

 Super. Ct. No.19STCV05366)

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.
2

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 
3

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, 
4

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 fillin/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 StockHendel 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. 
5

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. 
6

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.
7

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 
8

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 StockHendel struggled to work independently, was inefficient, and 

sometimes pushed back on editing directions. 
9

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 
10

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. 
11

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 
12

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.
13

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 
14

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 
15

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, 
16

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.)
17

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 
18

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 
19

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).
20

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 
21

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 
22

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 
23

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 coworker declarations Williams presented. Williams also 

acknowledged that these traits were not always appreciated by 
24

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 
25

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 
26

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.
27

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.