Filed 10/4/22 Stock

- Hendel v. Fox Digital Enterprises CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THOMAS STOCK

- HENDEL ,

Plaintiff and Appellant ,

v.
FOX DIGITAL ENTERPRISES, INC. ,
Defendant and Respondent

. B 309869
(Los Angeles County Super. Ct. No. 19STCV04334 )

APPEAL from the judgment of the Superior Court of Los Angeles County, Lia Martin, Judge. Affirmed

. Law Offices of Jeffrey C. McIntyre , Jeffrey Curran McIntyre and Robert Garcia, Jr. , for Plaintiff and Appellant. Mitchell, Silberberg & Knupp , Seth E. Pierce and Bradley J. Mullins for Defendant and Respondent.

___________

______ _______2 Thomas Stock

- Hendel appe als from a judgment dismissing his age discrimination lawsuit against his former employer, Fox Digital Enterprises, Inc. (Fox). Stock

- Hendel contends the trial

cou rt erred in granting summary adjudication for Fox on two key issues : (1) whether Stock

- Hendel could make a prima facie case, and (2) whether the nondiscriminatory reason Fox identified for reducing and ultimately eliminating Stock

- Hendel’s shifts was pretextual. Stock

- Hendel further challenges certain evidentiary rulings the court made in connection with Fox’s summary judgmen t/ adjudication motion. W e affirm. The trial court c orrec tly concluded that Fox identified evidence establishing Stock

- Hendel could not prove circumstances supporting an inference of discriminatory intent,

a requisite element of a prima facie case for age discrimination

. We further hold that the trial court did not abuse its discretion in permitting Fox to rely on certain eviden ce it identified for the firs t time at the reply stage of Fox’s summary judgmen t/ adjudication motion. Finally, a s to the remain d er of Stock

- Hendel’s challenges to the court’s evidentiary rulings,

even assuming, for the sake of argument, that the se rulings were in error , such error would not affect our analysis and ultimate conclusion on appeal.

FACTS AND PROCEEDINGS BELOW The following background is based on the evidence the parties presented at the summary judgment stage. Unless the source of th e information is indicated, it is undisputed.

A. Stock

-

Hendel’s Duties a s a Finishing Editor

a t Fox In November 1989, Fox hired Stock

- Hendel as a finishing editor. A finishing editor electronically finishes advertising3

“promos” for Fox television program s. Room producers assign work to the finishing editors, provide specific instructions regarding needed edits, and approve the final promos. At Fox, finishing editors are assigned to an editor’s bay, which is a separate office filled with required electron ic equipment. Room producers typically spend their shift in an editor’s bay. The editor’s bay, in effect, acts as the room producer’s office and the editor’s o ffice, and the room producers directly assist, review the work of , and answer the questions of the editors with whom they sh are an office. As there were fewer room producers than editors, some finishing editors, including Stock

- Hendel , generally worked without a room producer in their editing bay

. All finishing editors asked questions of room producers. Beca u se a room producer was not typically in his editing bay, w hen Stock

- Hendel needed to obtain information to complete a promo , he called a room producer or went to an editing bay that a room producer shared with another finishing edi tor.

B

. Finishing Editor Shift Reductions and Stock

- Hendel ’s Termination

1. Finishing e ditor s taffing g enerally Under the agreement entered into between Fox and the union representing finishing editors, finishing editors like Stock

- Hendel are what is referred to as daily hire s

. T his means that, technically, a finishing editor is rehired each day of work

. Given that promo work, by it s nature, varies over the course of the television season,
t he daily hire approach was implemented to permit management to staff up or down as work needs change. The union specifically negotiated a premium wage to compensate for this lack of job security.4 Stock

- Hendel was a daily hire while working at Fox, although, i n practice , he was continuously on Fox’s work schedule (except for vacations) from November 1989 until July 2018

. At the time Stock

- Hendel was terminated, Christy Cofer ( the

v ice p resident of o n
- a ir m arketing o perations) and Tina Manos ( the d irecto r of o n
- a ir m arketing o perations) determine d the required number of finishing editor shifts and who would work them

. The scheduling department , ultimat e ly under William Morales ( v ice
p resident of e nt ertainme nt p ost

- p roduction e ngineering) then implemented Cofer and Manos’s scheduling choi ces.

2. 2009 f

inishing e ditor s hift r eduction In 2009, Fox reduced the number of finishing editor shifts as part of overall cost reductions. Stock

- Hendel’s regular shifts were reduced from a consistent schedule of five shifts per week to four shifts per week. A fter this reduction, however, Fox offered him additional shifts “relatively regularly , ” dep ending on additional staffing needs. The 2009 reduction did not impact all finishing editors

. Stock

- Hendel was told that he was selected, in part, due to his tendency to “usurp[ ] [the room producer’s] authority , ” an issue that, acco rding to Stock

- Hende l , resulted from the changing role of the room producers at the time, and that he corrected after it was raised with him in 2009

. Stock

- Hendel did not view these shift reductio ns as discriminatory, and instead testified at deposition that “they [Fox] gave me an honest answer [when he asked why he was selected] and I accepted it.”

3. 2017 and 2018 f inishing e ditor s hift

r eduction s In 2017, Fox decided i t needed to make cuts across various units to reduce costs. Scott Edwards ( e xecutive vice presi dent of creative advertising ) announced this to the finishing editors at an5

all

- editors meeting that Stock

- Hendel attended in Oct o ber 2017

. Edwards convey ed to the editors that , in Stock

- Hendel’s words, “[t]he nature of the workload was going to be changi ng. That philosophically, people should view what they were doing at Fox as a strict freelance job, even though the majority of people in that room had been there for a very long time, such as myself. That

. . . because they were expecting to cut fewer promos, there would be less work. That the nature of what they were doing would be to try and do as much promotion as they could, but with less. [¶]

. . . [T]he rule

— the word came down he had to absolutely stay wi thin budget even though they had gone over budget every year.

. . . [T]he whip was coming down. ” C ontemporaneous Fox email communications identify these budget cuts, as well as finishing editor “ [ n ] ight shifts experiencing early releases,” as the basis fo r the 2017 reduction in the total number of fin i s hing editor shifts to be staffed

. Cofer and Manos chose to reduce the total number of shifts from 35 to 29 shifts per week

. At that time, the finishing editors working regularly at Fox

— that that is, an aver age of at least four s hifts per week

— were Stock

- Hende l, Daryl Frederick, Jack Thannum, Patrick Williams, Paul Ware , David Yount, and Ruth Cooper. These editors ranged in age at that time from 51 to 66 years old. Fox also employed “fill

- in and /or more part

- time finishing editors” as needed. A fill

- in editor provides coverage when other editors are sick, on vacation , or when coverage is otherwise needed, so such fill

- in editors’ shifts vary considerably depending on things like regular ed itor a bsences o r whether it is premiere season

. In October 2017, these fill

- in/part

- time editor s were Thomas Reichlin , Dylan Way, and Jason Cheung . These editors had an age range of 44 to6

55 years at the time. Stock

- Hendel, at 66 years , was the oldest of all the finis hing editors

. The October 2017 shift reduction s were as follows: Ware (then 55 years ) was reduced from five to four shifts per week; Williams (then 63 years ) was reduced from four to three shifts
per week; Thannum (then 65 years ) was reduced from five to four shifts a week; Stock

- Hendel (then 66 years ) was reduced from four to two shifts per week; and Reichlin (then 54 years ), who had t ypically been working one shift per week as a fill

- in editor, stopped receiving any shifts

. The shift al locations for Frederick (then 59 years ), Yount (then 54 years ), and Cooper (then 50 years ) did not change, and the shifts typically offered to Way (45 years )

— who, as a fill

- in editor, did not have regularly scheduled shifts

— increased from typically one to two shift s per week to typically two shifts per week. In 2018, due to “a reduction of workload during the summer in addition to being asked to reduce costs,” Fox announced it would again reduce the number of finishing editor shifts. Cofer and Manos ag ain decided which finishing editors’ shifts to reduce

or eliminate

. In connection with this, Manos consulted with Steve DiPietro , the lead room producer at the time

. The cuts they decided to implement ultimately affected three editors , beginning in June 2018 : Thannum (then 65 years ), whose shifts were reduced from four to three per week, and Stock

- Hendel (then 66 years ) and Williams (then 64 years ), who both had their shifts reduced to zero. Stock

- Hendel and Williams remained on the roster. L ater in 20 18, Fox offered Stock

- Hendel fill

- in shift s , which he declined. Although Fox still adds occasional ad hoc shifts (similar to the ones previously offered to Stock

- Hendel) to the schedule to meet

one
- off needs, Fox has never restored Stock

- Hendel’s regularly7

scheduled shifts. Indeed, the total number of finishing shifts scheduled by Fox has dropped significantly since 2016.

C

. Stock

-

Hendel ’s Lawsuit Against Fox Stock

- Hendel filed suit against Fox , alleging two causes of action: age discrimination under California’s Fair Employment and Housing Act ( FEHA ) and wrongful termination in violation of public policy. Both were based on allegations that , in 2017 , Fox “ began severely reducing t he number of hours [Stock

- Hendel] was assigned to work, all whil e assigning more hours to younger employees in the same job category ” and that , after Fox terminated Stock

- Hendel in 2018, it “increased the number of work hours for younger employees with less experience than [Stock

- Hendel], hours and projects that could h ave also been assigned to [Stock

- Hendel]

. ”

D. Fox’s Motion for Summary Judg ment or Adjudication Fox moved for summary judgment or, in the alternative, summary adjudication. Both parties raised objections to evid e nce offered by the other in connection with the motion. Stock

- Hendel ob jected to Fox offering a compendium of evidence for the first time on reply

. Stock

- Hendel did not, however, request a continuance or permission to file a surreply in the six months between F ox filing its reply compendium and t he motion hearing, during which time discovery was ongoing. We discuss Fox’s objections in more detail in Discussion part B , post

. Fox’s motion argued for summary judgment or a djudication on the basi s that , inter alia, Stock

- Hendel could not establish a prima facie case of age discrimination, because he had not and could not offer evidence su pporting a reasonable inference that Fox acted with a discriminatory motive. Fox argued that membership in a protected class is not enough, and submitted evidence reflecting8

that Stock

- Hendel had never heard any age
- ba s ed comments

or jokes during his long tenure at Fox. Fox also pointed to evid e nce t hat Fox had “regularly scheduled (hired) [ Stock

- Hendel ]” for many years “wh ile he was in his [60’s] , ” which , given that Stock

- Hendel was a daily hire, Fox argued supported an inference that there was no discriminatory motive for his firing. (See Bra dley v. Harcourt
, Brace & Co. (9th Cir. 199 6 ) 1 04 F.3d 267 [“ w here the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive].) Fox further pointed to evidence that Fox offered extra shifts after both the 2017 and 2018 shift reductions, that shifts had been in a general decline, that an editing ba y had been closed, and that shifts from which Stock

- Hendel was removed had not been restored. In opposition to Fox’s motion , Stock

- Hendel argued that the
ages of the finishing editors most and least affected by the shift reduction s/ eliminations sufficiently supported an inference of discriminatory intent to state a prima facie case. To support his argument, Stock

- Hendel offered his own declaration roughly estimating the ages of the various finishing editors working at Fox in 2017 and 2018. Specifically, his declaration provided that he “was the oldest finishing editor [ ] ,” that of “the other two oldest finishing editors , namely Patrick Williams and Jack Thannum, both of whom were in their middle 60’s, one was also eliminated from the schedule, and one had his number of shifts reduced. All of the remaining finishing editors, as of July 2018, were five to 20 years or more younger than [Stock

- Hendel]

. [He] had worked with all of the other editors for many years and some [he] [knew] their exact ages and [he] [knew] the approximate ages of others.” To rebut this argument, Fox include d the Morales declaration in its reply compendium. The declaration identif ies the specific9

ages of the relevant finishing editors , as well as whether they

were regularly scheduled or fill

- in editors

. These bi rthdates reflect ages of the v arious finishing editors that a re generally consistent with the estimated ages included in Stock

- Hendel’s declaration. Fox argued that the specific ages of the finishing editor s, when considered alongside how the shift reductions and eliminations affected each editor , actually precluded an inference of discr iminatory intent , even at the prima facie stage. Fox’s motion sought summary judgment or adjudication

on the additional basis that, even assuming Stock

- Hendel had met his burden of establishing a prima facie case for age discrimination , Fox had presented evidence establishing legitim ate, nondiscriminatory reasons for the shift reductio ns affecting Stock

Hendel

— namely, the need for cost reduction s and problems with Stock

- Hendel ’s work

. Fox further argued Stock

- Hendel had failed to provid e evidence sufficiently supporting Fox’s proffered reasons were pretextual

. To support these arguments, Fox submitted declarations and documentary evidence reflecting that cost reductions motivated the reductio n / elimination of finishing edito r shifts in 2 017 and 2018. Both Fox and Stock

- Hendel also offered declarations and deposition testimony of Fox employees and officers , and of Stock

- Hendel himself, regarding Stock

- Hendel ’s work performance.

1. Fox’s e vidence r egarding Stock

- Hendel ’s

w ork p erformance Fox offered evidence that Cofer, Manos and DiPietro viewed Stock

- Hendel as a weaker performer than his peers, specifically that , compared to other finishing editors, he struggled to work independently, asked too many questions, was often argumen tative, and was therefore less efficient and produced less work than his
peers

. Fox also offered deposition testimony of Stock

- Hendel and10

two other finishing editors recalling complaints or comments about the number of questions Stock

- Hendel asked

. In ad dition, Fox offered Yount ’s deposition testimony that “[t]he general complaint is that [Stock

- Hendel] was argumentative [¶]

. . . [¶] [a]nd that he asked questions before he thought things through.” According to lead room producer DiPietro, Stock

- Hendel’s need for “ ‘ hand holding ’ ” meant DiPietro had to give him only straightforward work. DiPietro was able to roughly quantify t hat he “ would spen d minimum twice as much with [Stock

- Hendel] than I woul d with the other editors. ” Cofer and Manos declared that, because of these issues, they targeted Stock

- Hendel ’s shift s when cost cuts mandated shift reductions in 2017 and 2018.

2

. Stock

-

Hendel ’s e vidence r egarding h is

w ork p erformance In opposing summary judgment, Stock

- Hendel offered evidence that he had never received any written communication from anyone at Fox reflecting the concerns about his work performance identified in Fox’s motion

. Fox does not provide finishing editors with regular performance reviews. It was , however, the practice at Fox for t he vice president over the editors’ group, Morales, to intervene when an editor was having chronic problems

. Neither Morales nor anyone from the Fox human resources department ever notified Stock

- Hendel that he had
any chronic problems or that Morales nee ded to speak to Stock

Hendel

. Stock

- Hendel also submitted evidence that he was paid 40 percent more per hour than union scale and $10.00 more than the average hourly rate of his colleagues. Stock

- Hendel offered evidence that he had worked with 20 to 30 ro om producers during his time at Fox, and that DiPietro was the only one who had ever told him he asked too
many questions. Stock

- Hendel did a c knowledge at deposition11

that DiPietro had made DiPietro ’s concerns about Stock

- Hendel’s questions known to Stock

- Hendel , and that Stock

- Hendel was aware that “DiPietro would get frustrated because I would ask him questions.” Stock

- Hendel offered additional deposition testimony in which DiPietro described his complaints to colleagues about Stock

Hendel’s work as “venting ” and was unable to estimate how much time he spent answering Stock

- Hendel ’s questions, or to provide

an estimated number of average daily questions

. Stock

- Hendel also offered declarations and deposition testimony of himself and others attesting to his abilities as a finishing editor while at Fox. Stock

- Hendel testified that he only asked the room producer for information which was either not available to him at all, or which , if he had attempted to find the information himself

, it would have great ly slowed the process. The questions generally only took a couple of minutes or less. Stock

- Hendel also offered a declaration of Camella Coggins,

a room producer who worked at Fox from 200 0 to early 2016. According to Coggins, Stock

- Hendel did n ot ask u nnecessary questions, and she spoke highly of his work. Stock

- Hendel also offered the declaration of Mark Bonn, a promo editor who worked at Fox from 1988 to 2016, indicating Stock

- Hendel was one of two editors (the other being Williams) given the most complex or difficult projects. According to Bonn, Bonn requested Stock

- Hendel handle his promos while working at Fox because Stock

- Hendel required the least amount of direction and explanation and because , of all the finishing editor s with whom Bonn worked, Stock

- Hendel and Williams’ s work “ was by far the best done and most erro r free.” Also according to Bonn, Williams and Stock

- Hendel were always cooperative and easily grasped what was needed.12 3. The c ourt’s e videntiary r uling s on
s ummary j udgment In its tentative ruling on Fox’s motion, the court addressed most of the parties ’ evidentiary objections

. On appeal, Stock

Hendel challenges several evidentiary rulings sustain ing objections by Fox . These rulings are as follows:

• The court sustained Fox’s objections to portions of Stock

Hendel ’s declaration indicating h e asked only routine questions seeking necessary information, and that these questions were of the type that room producers were employed to answer to assist the editing proce ss. Fox objected to thi s evidence as irrelevant, lacking foundation and speculative.

• The court sustained Fox’s objections to portions of Stock

Hendel ’s declaration indicating he was told by various people that he was one of the faster editors. Fox obje cted on the basis that these portions of the declaration were irrelevant, lacked foundation, speculative, hearsay , and conclusory.

• The court sustained Fox’s objections to portions of the Coggins declaration regarding her views on Stock

- Hendel’s work perfo rmance and work demeanor. Fox objected to these portions as irrelevant and conclusory subjective opinions , “as Coggins had no role in the decisions at issue, ” and based on Coggins having last worked with S to ck

- H endel in approximately 2007

.

• The court sustained objections to the testimony of Ware indicating that, in his experience, the questions he hear d Stock

- Hendel ask were routine.13 The court did not expressly rule on Stock

- Hendel ’s objection to Fox’s submission of a reply compendium , and ther eby presumptively overruled it

. ( See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534. )

4. The c ourt’s r uling on Fox’s s ummary j udgment and a djudication m otion Following a hearing, t he court granted Fox’s motion for summary adjudication as to three issues

. 1 First, the court concluded Stock

- Hendel “[could not ] establish a prima fa cie case for age discrimination. ” In so concluding, the court noted that “[i]n reply, defendant Fox

. . . provides evidence that all finis hing editors

— those whose shifts were eliminated and those who continued to work as finishing editors

— were members of the protected class

. ” It also noted that an editor continued to work at Fox after Stock

- Hendel ’s termination who was not significantly
you nger than Stock

- Hendel (specifically, Thannum , who was 1 6 months younger ). Second, t he court concluded Stock

- Hendel had failed to meet his burden of demonstrating a triable issue o f fact as to whether Fox ’s proffered reasons for eliminating his shifts were merely a
pr etext for age discrimination. Third, t he trial court granted summary adjudication in Fox’s favor on punitive damages, based on the court’s ruling s regarding the prima facie case and nonpretextual motive

.

1 The court also denied as moot the portions of Fox’s motion concerni ng two other named Fox entities, and denied summary adjudication on the issue of the timeliness of Stock

- Hendel’s Department of Fair Employment and Housing complaint regarding the 2017 reduction of plaintif f ’ s shifts . Neither party challenges these rulings on appeal

.14 Judgment for Fox was entered, and Stock

- Hendel timely appealed.

DISCUSSION Stock

- Hendel has limited the issues on this appeal to ( 1 ) the prima facie finding ; ( 2 ) the pretext finding; and ( 3 ) certain evidentiary rulings. We conclude that the court did not err in finding that Fox had m et its burden to show that Stock

- Hendel could not establish a prima facie case. Because that finding is dispositive , we need not consider whether the court erred in its finding on pretext. As to Stock

- Hendel’s evidentiary arguments,

we conclude the court correctly overruled Stock

- Hendel’s objection to the portion of Fox’s reply compendium on which we rely in our decision . We need not reach the remainder of the evidentiary arguments Stock

- Hendel raises, because even considering the evidence Stock

- Hen del clai ms was improperly excluded, we would still affirm the court’s judgment.

A. General Legal Principles Regarding Age Discrimination Claims and Summary Judgment Both federal and state law prohibit employers from discriminating against employe es on the basis of age. (Gov. Code, § § 12940, subd. (a) & 12941 ; 42 U.S.C. § 2000e et seq.; 29 U.S.C. § 621 et seq .) “Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent w hen applying our own statutes.” ( Guz v. Bechtel Nat ional

, Inc. (2000) 24 Cal.4th 317, 354 ( Guz ). ) A n employee alleging age discrimination under state or federal law must be over 40 years old and must “ultimately prove that [an] adverse employ ment action taken was based on his or her age. ” ( Hersant v. Dep artment of Soc ial Serv ices (1997) 5715

Cal.App.4th 997, 1002 ( Hersant ) ; accord , Guz, supra , 24 Cal. 4th at pp. 354

− 355

. ) “Since direct evidence of such motivation is seldom available, the courts use a system of shifting burdens as an aid to the presentation and resolution of age discrimination cases.” ( Hersant, supra , at p. 1002

. ) Specifically, “ California has adopted the three

- stage

. . . [¶]

. . . McDonnell Douglas [ Corp. v. Green (1973) 411 U.S. 792

. . . ] test ,” which “ reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.

. . . [B] y successive steps of increasingly narrow focus, the test al lows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained. ” ( Guz, supra , at p. 354 .) At trial, this “ burden

- shifting system requires the employee first establish a prima facie case of age discrimination. If the employee does so, the employer is required to offer a legitimate

non
- age
- based reason for the adverse employment action. If it does not, then th e employee prevails. [Citations.] [¶] Given the varying nature of the problem, it is impossible to make an exact, all

- inclusive statement of the elements of a prima facie age discrimination case applicable in all situations. [Citations.] The general r equirement is that the employee offer circumstantial evidence such that a reasonable inference of age discrimination arises. The requirement is not an onerous one. [Citations.] [¶]

. . . [¶] When the employee has made this showing, the burden shifts to the employer to go forward with evidence that the adverse action was based on considerations other than age discrimination. When the employer offers evidence justifying the adverse action

on a basis other than age, the burden shifts back to the employee to meet his ultimate obligation of proving that the reason for the adverse action was age discrimination. This ultimate issue is16

decided on all the evidence. [Citations

. ] ” ( Hersant , supra, 57 Cal.App.4th at pp. 1002

– 1003

. ) “The McDonnell Dougla s framework is modified in the summary judgment context. ” ( Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.) On a summary judgment motion “[i] n an employment discrimination case,

. . . [ t ] he ‘ employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintif f ’ s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors. ’ ” ( Zamora v . Sec urity Indus trial Specialists, Inc. (2021) 71 Cal.App.5th 1, 32 ; see Code Civ. Proc., § 4 37c, subds. (c ) & (p)(2).) Whether Fox has met this burden as the defendant in an age discrimination case presents a question of law for the court , which we review de novo

. ( Caldwell v. Paramount Unified Sch ool Dis t. (1995) 41 Cal.App.4th 189, 201.) In so do ing, we view the evidence in the light most favorable to Stock

- Hendel as the party opposing the motion. ( Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206. )

B. Fox Prese nted Evidence Fatal to Stock

- Hendel’s Prima Facie Case In O ’ Connor v. Consolidated Coin Caterers Corp. (1996) 517 U.S. 308, t he U nited States Supreme Court made clear that being replaced by someone who is under 40 years old is not an element of a prima facie age discrimination case , even though

an age discrimination plaintiff must himself be over 40 years

. Specifically, t he Cour t noted that the Age Discrimination in Employment Act (ADEA) , like the FEHA, “ does not ban discrimination against employe es because they are aged 40 or older; it bans discrimination against employees because of their
age, but limits the protected class to those who are 40 or older.17

The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age .” ( Id. at p. 312 , italics omitted .) In this context, the Court noted that “[a] prima facie case requ ires

‘ evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion’ ” ( id

. at p. 312, italics omitted) , and that “[i] n the age

- discrimination context, such an inference cannot be drawn from the r eplacement of one worker with another worker insignificantly younger .” ( Id. at
p. 313 , italics added .) Relying on this reasoning, several courts

— including our state S upreme C ourt

— have identified replacement by, or more favorable treatment for, a “significantly younger” person as an element of a prima facie age discrimination case , at least in the absence of direct evidence of discriminatory intent . (See, e.g ., Guz , supra , 24 Cal.4th
at p. 366 [ noting that t here is “no basis to suspect a motive of prohibited bias” when “ an age
- protected worker is directly replaced by a person not significantly younger ”]; ibid. [“[i] n the context of a work force reduction . . . [an age discrimination plaintiff] need only show, prima facie, that persons significantly younger, but other wise similarly situated, were ‘ “ treated more favorably ” ’ ” ]; Grosjean v. First Energy Corp . (6th Cir. 2003) 349 F.3d 332, 335 [“ [i] n age discrimination cases, the protected class includes all workers at least 40 years old and the fourth element is modified to require replacement not by a person outside the protected class, but merely replacement by a significantly younger person ”].) Mor e over,

“ [a] majority of [federal] circuit courts

. . . hav e held that an
age difference of less than [10] years, without more evidence, is insufficient to make a prima facie case of age discrimination. ” ( France v. Johnson (9th C ir. 2015) 795 F.3d 1170, 1174 ( France ) .)18 Stock

- Hendel points out that “ ‘failure to prove replacement by a younger employee is “not necessarily fatal” to an age discrimination claim where the discharge results from a general reduction in the work force due to business conditions, ’ ” and that courts have treated this requirement with “fle xibility.” ( See, e.g., Nidds v. Schindler Elevator Corp

. (9th Cir. 1996) 113 F .3 d 912, 917 [FEHA case ].) But these courts have recognized such flexibility

on the basis that replacement by a significantly younger worker is only one possib l e basis on which a court could infer “ that the [challenged employment action] occurred under circumstances giving rise to an inference of age discrimination, ” which is the ultimate requiremen t of a prima facie age discrimination case

. ( Rose v. Wells Fargo & Co. (9th C ir. 1990) 902 F.2d 1417, 1421;

see Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1755 [“ [t] he purpose of the prima facie case is for the plaintiff to produce evidence demonstrating that the employment decision occurred in ‘ circumstances which allow the court to infer unlawful discrimination’ ”] .) Thus, whether or not replacement by a significantly younger employee is a formal element of an age discrimination claim, the law is clear that a plaintiff cannot establish discriminatory intent at the prima facie stage solely by showing the employer replaced the plaintiff with an individual not sign ificantly younger than the plaintiff or by showing the employer’s disparate treatment of plaintiff and an individual not significantly younger than the plaintiff

. This line of cases is highly relevant to the instant appeal, because the theory unde rlying Stock

- Hendel’s prima facie case relies entirely on other finishing editors’ ages relative to his own , and how each editor’s shift changes in 2017 and 2018 line up with those age differences. Namely, Stock

- Hendel argues that

an inference of age d isc rimination arises from the circumstances19

of his firing, because Fox chose him , the oldest of the 10 finishing editors , as well as another of the oldest finishing editors (Williams) , to lose all shifts in 2018. He further argues that in 2017, Fox reduced the shifts of the oldest finishing editors more than it reduced the shifts of the other finishing editors

. To support this aspect of his prima facie case, Stock

- Hendel relies on his declared

es timates regarding the ages and relative ages of the relevant finishing editors as a group, which he acknowledged at the hearing before this court are generally consistent with

— although far less specific than

— the specific ages of each relevant editor contai ned in the Morales declaration. At this point in our summary judgment analysis, we must pause to address Stock

- Hendel’s challenge to the court’s implicit overruling of his objection to the reply compendium , at least to the extent that the compendium contai ns the Morales declaration

. We conclude the court did not abuse its discretion in implicitly overruling this objection to the extent doing so allowed Fox to offer the Morales declaration for the first time on reply. In Fox’s original motion, the basis o n which Fox sought to establish Stock

- Hendel could not make a prima facie showing of discriminatory intent was not the relative ages of the other finishing editors, but Stock

- Hendel’s testimony that he had never heard any discriminatory comments regarding age, and that Fox had repeatedly hired him for years while he was in his 60’s. In opposing the motion, Stock

- Hendel did not dispute any of this evidence. Rather, he argued that the relative ages of the finishing editors and how the shift reduction s/ elimi nations affected them, not any discriminatory comments, provided the “something more” on which Stock

- Hendel’s prima facie case relied to support an inference of discriminatory intent. To rebut this, Fox submitted the Morales declaration, which contained more precise information about the20

ages and jobs of the finishing editors. Although F ox had the burden in its initial motion, it had the burden of proving a negative

— that Stock

- Hendel could not establish discriminatory intent in any way, on any basis. Denying Fox the ability to offer evidence on reply that Stock

- Hendel had not established discriminatory intent in a way Stock

- Hendel raised for the first time in its opposition would be to require Fox to anticipate and counter every possible way Stock

Hendel might attempt to make his prima facie case. The court acted within its discretion in declining to require this and in stead considering the Morales declaration as proper rebuttal evidence over Stock

- Hendel’s objection. We consider it in our analysis as well. Returning to our summary judgment analysis, we note that Stock

- Hendel’s status a s the oldest finishing editor in the group of finishing editors at Fox in 2017 and 2018 2 (and the status of Thannum and Williams as the second and third oldes t , respectively ) is evidentia l ly insignificant , given the size of that group

. That
group was com prised of at most 10 people

— seven regularly scheduled editors, and three “fill

- in” editors. “[W] here alleged numerical favoritism of younger workers arose within an extremely small employee pool, courts have rejected any consequent inference of intentional bias on grounds, among others, that the sample was too minuscule to demonstrate a statistically reliable discrim inatory pattern.” ( Guz, supra , 24 Cal.4th at p. 367 ; see Rose
, supra, 902 F.2d at p. 1423 [ where a plaintiff chooses to rely solely on statistical evidence to carry his prima facie burden, “ ‘ [he ] must show a stark pattern of discrimination unexplainable on grounds other than
age ’ ” ] ; Diaz v. Eagle Produce Ltd. Partnership (9th Cir. 2008) 521

2 Neither party questions that the same finishing editors who worked for Fox at the time of the shift reductions in 2017 also worked for Fox at the time of the 2018 shift reductions/eliminations.21

F.3d 1201, 1209 ( Diaz ) [16

- employee pool d isregarded as insufficient to support inference of discrimination ]; Sengupta v. Morrison

Knuds e n Co. (9th Cir. 1986) 804 F.2d 1072, 1076 [ disregarding evidence that, in a 28

- employee pool, four of five African

- Americans were laid off, as insufficient to establish prima facie age discrimination because “ ‘ “ s tatistical evidence derived from an extremely small univers e ”

. . . “ has little predictive value and must be disregarded ” ’ ” ] .) But even setting aside the s ize o f the finishing editor pool, the evidence Fox presented on summary judgment prevents us from inferring discriminatory intent from Fox’s treatment of Stock

- Hendel as compared to its treatmen t of other finishing editors in that pool

. Namely, the eviden ce of the specific ages and shift reductions of finishing editors ref l ects that s ome of the editors who lost fewer shifts than did Stock

- Hendel in 2017, were “significantly”
younger than Stock

- Hendel

— but some were not. Similarly, some of the finishing editors who continued to be employed at Fox following the 2018 shift reductions were significantly younger than Stock

Hendel, but some

— in particular Thannum, who was 65 years at the time, only 16 months younger tha n Stock

- Hendel

— were not. (See c f. France, supra , 795 F.3d at p. 1174 [eight

- year average age difference between plaintiff and younger employees favored for promotion would have been insufficient even to suppor t prima facie case under ADEA , had age difference not been bolstered by other evidence].) Our conclusion is bolstered by the fact that the difference between the average age of finishing editors retained in 2018 and the average age of those terminated

— 11.125 years 3

— is just barely

3 The average age of the finishing editors terminated in 2018 (Stock

- Hendel and Williams) was 65 years. The editors retained22

at the threshold amount of time courts begin to consider potentially significant (at least where, as here, there is no other evidence supporting intent) . ( See France , supra, 795 F.3d at p. 1174 [adopting presumption that less than 10

- year difference presumptively insignificant]; Diaz , supra, 521 F.3d a t p. 1209 [ “ [t] hat the average age of the workers hired during the two

- year period is approximately nine and a half years younger than the average age of those laid off

— 38.75 versus 48.4 years

— also fails to justify an inference of age discrimination ”] .) “ The disparity is not

so stark as to suggest bias rather than pure chance.” ( Ibid. ) This comparison becomes even less impressive when one segregates and compares the treatment of only those truly “similarly situated” to Stock

- Hendel

— namely, regularly sch eduled finishing editors , rather than both regularly scheduled and fill

- in editors . The average age of regularly scheduled editors retained in 2018 was 56.2 years , whereas the average age of those terminated in 2018 is 65 years, reflecting a presumptively insign i ficant difference of 8.8 years

. Under California Supreme Court precedent , mere age comparison s between Stock

- Hendel and the handful of other finishing editors Fox retained in 2018 an d/ or whose shifts Fox reduced to a lesser degree than it did Stock

- Hendel’s in 2017, cannot alone support a reasonable inference of age discrimination

. (See Guz, supra , 24 Cal.4th at p. 369 [employer’ s alleged disparate treatment of plaintiff and two younger workers, one eight years younger and the other six years younger, did not support reasonable inference of age discrimination, in absence of independent

in 2018 were Fred erick, Thannum, Ware, Yount, Cooper, Reichlin, Way, and Cheung. The average age of that group was 53.875 years.23

indication decision maker considered their age differences significant].) Nor has Stock

- Hendel identified any other e vidence suggesting discriminatory intent. In arguing to the contrary, Stock

- Hendel points to certain evidence that is also relevant to the issue of pretext. Specifically, he argues that evidence regarding his capabilities as an editor and Fox’s failure t o formally censure him regarding his performance , when combined with what Stock

Hendel characterizes as weak evidence that Stock

- Hendel was less capable than other finishing editors, render Fox’s claim that its employment decisions were based on Stock

- Hend el’s work performance implausible, and that this implausibility supports

an inference of discriminatory in tent at the prima facie stage. We conclude that, as a matter of law, the evidence does not support an inference of discriminatory intent in this way

. A reasonable trier of fact could not find based thereon that it was implausible Fox chose to eliminate Stock

- Hendel’s shifts as part of
cost

- cutting measures because of his capabilities relative to those of the other finishing editors

. (See Hersant, supra , 57 Cal.App.4th at p. 1005 [employee “ ‘ must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that

a reasonable fact finder could rationally f ind them “ unworthy of credence ” ’ ”].) First, e vidence that Stock

- Hendel’s previous supervisors did not take issue with his work in and before 2016 does not support a reasonable inference that, in 2017 and 2018, it was implausible for the lead room prod ucer (DiPietro ) to take issue with it. Second, that Stock

- Hendel never received a negative performance review , and /or that Morales never counseled him regarding his performance , also cannot support a reasonable inference that Fox’s stated motivation was implausible , as Stock

-24

Hendel suggests its can

. F inishing editors did not receive any formal performance reviews. And that Fox had not previously experienced sufficient problems with Stock

- Hendel’s work to refer the issue to Morales, or tha t Stock

- Hendel was generally good at his job, are not bases on which a jury could reasonably conclude it is implausible that , as part of an effort to cut costs

— something Stock

Hendel does not dispute was occurring

— Fox cut Stock

- Hendel ’s shifts , as opposed to those of some other finishing editor , because DiPietro felt Stock

- Hendel was slower than other finishing editors (rather than being generally slow or bad at his job). (See Foroudi v. The Aerospace Corp

. ( 2020) 57 Cal.App.5th 992, 1010 [“because [employ ee] was laid off as part of a company
- wide reduction in force, the fact that he was terminated for minor issues alone does not raise an inference of age discrimination”].) Finally , DiPietro’s deposition testimony does not, as Stock

- Hendel argues , support a reasonable inference that DiPietro’s declared concerns about Stock

Hendel were “false.” T he deposition testimony Stock

- Hendel points to reflects that DiPietro was unable to estimate the exact amount of time Stock

- Hendel spent asking questions, that DiPietro did not recall whether he identified this as a problem to others, and that DiPietro instead recalled only “ ‘venting’ ” to his colleagues about it. None of this testimony contradicts DiPietro’s declaration or support s a reasonable inference that it is false

— especially where , as noted, it is undisputed that Fox did not have a formal review process for finish ing editors. In sum, even considering , as Stock

- Hendel argues we should, evidence the court primar il y considered at the pretext stage , and even though the burden on an age discrimination plaintiff is

“ ‘ not onerous ’ ” at the prima facie stage ( Guz, supra , 24 Cal.4th
at p. 355), Fox has established that Stock

- Hendel cannot meet this burden

. (See Hersant, supra , 57 Cal.App.4th at p. 1002 [prima25

facie case requires, at a minimum, that the “employee offer circumstantial evidence such that a reasonable inference of age discrimination arises”]. ) T he court did not err in granting Fox summary adjudication on th e issu e

. Under the McDonnell Douglas framework, this is an independently sufficient basis for affirming the judgment.

C

. Stock

-

Hendel’s Evidentiary Arguments Because the only portion of the reply compendium on which we rely is the Morales declaration, we need only consider whether the court erred in presumptively overruling an objection to that portion of the reply compendium . W e conclude above that t he court did not abuse its discretion in presumptively overruling Stock

- Hendel’s objections to the reply compe ndium to the extent it contained the Morales declaration. We decline to reach Stock

- Hendel’s remaining evidentiary objections, because even if Stock

- Hendel is correct and the court improperly excluded and/ or improperly permitted the various pieces of evi dence he identifies, none of it would change our analysis on appeal.26 DISPOSITION The judgment is affirmed. Respondent is awarded its costs

on appeal. NOT TO BE PUBLISHED

.

R OTHSCHILD, P. J. We concur:

CHANEY , J.

BENDIX , J.