Filed 12/22/23 St. Hubert v. Fox Corporation CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

FRITZGERARD ST. HUBERT,

Plaintiff and Appellant,

v.

FOX CORPORATION,

Defendant and Respondent.

 B322737

 (Los Angeles County

 Super. Ct. No. 

 20STCV38145)

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.

_________________________________________
2

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.
3

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.
4

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 
5

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 . . . .”
6

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.”
7

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, 
8

“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.
9

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 
10

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.)
11

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 
12

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.
13

Discovery admissions cannot be contradicted by “ ‘selfserving 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”].)
14

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.
15

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 
16

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.
17

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 
18

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.
19

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.