Filed 10/4/22 Stock-Hendel v. Fox Digital Enterprises CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THOMAS STOCK-HENDEL,

Plaintiff and Appellant,

v.

FOX DIGITAL ENTERPRISES, 

INC.,

Defendant and Respondent.

 B309869

 (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 appeals from a judgment dismissing 

his age discrimination lawsuit against his former employer, Fox 

Digital Enterprises, Inc. (Fox). Stock-Hendel contends the trial 

court erred in granting summary adjudication for Fox on two key 

issues: (1) whether Stock-Hendel could make a prima facie case, 

and (2) whether the nondiscriminatory reason Fox identified for 

reducing and ultimately eliminating Stock-Hendel’s shifts was

pretextual. Stock-Hendel further challenges certain evidentiary 

rulings the court made in connection with Fox’s summary 

judgment/adjudication motion.

We affirm. The trial court correctly concluded that Fox 

identified evidence establishing Stock-Hendel could not prove 

circumstances supporting an inference of discriminatory intent, 

a requisite element of a prima facie case for age discrimination. 

We further hold that the trial court did not abuse its discretion 

in permitting Fox to rely on certain evidence it identified for the 

first time at the reply stage of Fox’s summary 

judgment/adjudication motion. Finally, as to the remainder of 

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

even assuming, for the sake of argument, that these rulings were 

in error, such error would not affect our analysis and ultimate 

conclusion on appeal. 

FACTS AND PROCEEDINGS BELOW

The following background is based on the evidence the parties 

presented at the summary judgment stage. Unless the source of the 

information is indicated, it is undisputed.

A. Stock-Hendel’s Duties as a Finishing Editor 

at Fox

In November 1989, Fox hired Stock-Hendel as a finishing 

editor. A finishing editor electronically finishes advertising 
3

“promos” for Fox television programs. Room producers assign

work to the finishing editors, provide specific instructions regarding 

needed edits, and approve the final promos.

At Fox, finishing editors are assigned to an editor’s bay, 

which is a separate office filled with required electronic equipment. 

Room producers typically spend their shift in an editor’s bay. The 

editor’s bay, in effect, acts as the room producer’s office and the 

editor’s office, and the room producers directly assist, review the 

work of, and answer the questions of the editors with whom they 

share an office. As there were fewer room producers than editors, 

some finishing editors, including Stock-Hendel, generally worked 

without a room producer in their editing bay.

All finishing editors asked questions of room producers. 

Because a room producer was not typically in his editing bay, when 

Stock-Hendel needed to obtain information to complete a promo, 

he called a room producer or went to an editing bay that a room 

producer shared with another finishing editor.

B. Finishing Editor Shift Reductions and 

Stock-Hendel’s Termination 

1. Finishing editor staffing generally

Under the agreement entered into between Fox and the union 

representing finishing editors, finishing editors like Stock-Hendel 

are what is referred to as daily hires. This means that, technically,

a finishing editor is rehired each day of work. Given that promo 

work, by its nature, varies over the course of the television season,

the daily hire approach was implemented to permit management to 

staff up or down as work needs change. The union specifically 

negotiated a premium wage to compensate for this lack of job 

security.
4

Stock-Hendel was a daily hire while working at Fox, 

although, in practice, he was continuously on Fox’s work schedule 

(except for vacations) from November 1989 until July 2018.

At the time Stock-Hendel was terminated, Christy Cofer (the 

vice president of on-air marketing operations) and Tina Manos (the 

director of on-air marketing operations) determined the required 

number of finishing editor shifts and who would work them. The

scheduling department, ultimately under William Morales (vice 

president of entertainment post-production engineering) then 

implemented Cofer and Manos’s scheduling choices.

2. 2009 finishing editor shift reduction

In 2009, Fox reduced the number of finishing editor shifts as 

part of overall cost reductions. Stock-Hendel’s regular shifts were 

reduced from a consistent schedule of five shifts per week to four 

shifts per week. After this reduction, however, Fox offered him

additional shifts “relatively regularly,” depending on additional 

staffing needs. The 2009 reduction did not impact all finishing 

editors. Stock-Hendel was told that he was selected, in part, due to 

his tendency to “usurp[ ] [the room producer’s] authority,” an issue 

that, according to Stock-Hendel, resulted from the changing role of 

the room producers at the time, and that he corrected after it was 

raised with him in 2009. Stock-Hendel did not view these shift 

reductions as discriminatory, and instead testified at deposition

that “they [Fox] gave me an honest answer [when he asked why he 

was selected] and I accepted it.”

3. 2017 and 2018 finishing editor shift 

reductions

In 2017, Fox decided it needed to make cuts across various 

units to reduce costs. Scott Edwards (executive vice president of 

creative advertising) announced this to the finishing editors at an 
5

all-editors meeting that Stock-Hendel attended in October 

2017. Edwards conveyed to the editors that, in Stock-Hendel’s 

words, “[t]he nature of the workload was going to be changing. 

That philosophically, people should view what they were doing at 

Fox as a strict freelance job, even though the majority of people in 

that room had been there for a very long time, such as myself. That 

. . . because they were expecting to cut fewer promos, there would be 

less work. That the nature of what they were doing would be to try 

and do as much promotion as they could, but with less. [¶] . . . [T]he 

rule—the word came down he had to absolutely stay within budget 

even though they had gone over budget every year. . . . [T]he whip 

was coming down.”

Contemporaneous Fox email communications identify these

budget cuts, as well as finishing editor “[n]ight shifts experiencing 

early releases,” as the basis for the 2017 reduction in the total 

number of finishing editor shifts to be staffed. Cofer and Manos 

chose to reduce the total number of shifts from 35 to 29 shifts per

week.

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

that that is, an average of at least four shifts per week—were 

Stock-Hendel, Daryl Frederick, Jack Thannum, Patrick Williams, 

Paul Ware, David Yount, and Ruth Cooper. These editors ranged 

in age at that time from 51 to 66 years old. Fox also employed 

“fill-in and/or more part-time finishing editors” as needed. A 

fill-in editor provides coverage when other editors are sick, on 

vacation, or when coverage is otherwise needed, so such fill-in 

editors’ shifts vary considerably depending on things like regular 

editor absences or whether it is premiere season. In October 2017, 

these fill-in/part-time editors were Thomas Reichlin, Dylan Way, 

and Jason Cheung. These editors had an age range of 44 to 
6

55 years at the time. Stock-Hendel, at 66 years, was the oldest of 

all the finishing editors. 

The October 2017 shift reductions were as follows: Ware 

(then 55 years) was reduced from five to four shifts per week; 

Williams (then 63 years) was reduced from four to three shifts 

per week; Thannum (then 65 years) was reduced from five to 

four shifts a week; Stock-Hendel (then 66 years) was reduced 

from four to two shifts per week; and Reichlin (then 54 years), 

who had typically been working one shift per week as a fill-in 

editor, stopped receiving any shifts. The shift allocations for 

Frederick (then 59 years), Yount (then 54 years), and Cooper 

(then 50 years) did not change, and the shifts typically offered 

to Way (45 years)—who, as a fill-in editor, did not have regularly 

scheduled shifts—increased from typically one to two shifts per 

week to typically two shifts per week.

In 2018, due to “a reduction of workload during the summer 

in addition to being asked to reduce costs,” Fox announced it 

would again reduce the number of finishing editor shifts. Cofer 

and Manos again decided which finishing editors’ shifts to reduce 

or eliminate. In connection with this, Manos consulted with Steve 

DiPietro, the lead room producer at the time. The cuts they decided 

to implement ultimately affected three editors, beginning in June 

2018: Thannum (then 65 years), whose shifts were reduced from 

four to three per week, and Stock-Hendel (then 66 years) and 

Williams (then 64 years), who both had their shifts reduced to zero. 

Stock-Hendel and Williams remained on the roster. Later in 2018, 

Fox offered Stock-Hendel fill-in shifts, which he declined.

Although Fox still adds occasional ad hoc shifts (similar to 

the ones previously offered to Stock-Hendel) to the schedule to meet 

one-off needs, Fox has never restored Stock-Hendel’s regularly
7

scheduled shifts. Indeed, the total number of finishing shifts 

scheduled by Fox has dropped significantly since 2016.

C. Stock-Hendel’s Lawsuit Against Fox 

Stock-Hendel filed suit against Fox, alleging two causes of 

action: age discrimination under California’s Fair Employment 

and Housing Act (FEHA) and wrongful termination in violation 

of public policy. Both were based on allegations that, in 2017, 

Fox “began severely reducing the number of hours [Stock-Hendel] 

was assigned to work, all while assigning more hours to younger 

employees in the same job category” and that, after Fox terminated 

Stock-Hendel in 2018, it “increased the number of work hours for 

younger employees with less experience than [Stock-Hendel], hours 

and projects that could have also been assigned to [Stock-Hendel].”

D. Fox’s Motion for Summary Judgment or 

Adjudication

Fox moved for summary judgment or, in the alternative, 

summary adjudication. Both parties raised objections to evidence 

offered by the other in connection with the motion. Stock-Hendel

objected to Fox offering a compendium of evidence for the first time 

on reply. Stock-Hendel did not, however, request a continuance or

permission to file a surreply in the six months between Fox filing 

its reply compendium and the motion hearing, during which 

time discovery was ongoing. We discuss Fox’s objections in more 

detail in Discussion part B, post.

Fox’s motion argued for summary judgment or adjudication 

on the basis that, inter alia, Stock-Hendel could not establish a 

prima facie case of age discrimination, because he had not and could 

not offer evidence supporting a reasonable inference that Fox acted 

with a discriminatory motive. Fox argued that membership in a 

protected class is not enough, and submitted evidence reflecting 
8

that Stock-Hendel had never heard any age-based comments 

or jokes during his long tenure at Fox. Fox also pointed to evidence 

that Fox had “regularly scheduled (hired) [Stock-Hendel]” for many 

years “while he was in his [60’s],” which, given that Stock-Hendel 

was a daily hire, Fox argued supported an inference that there was 

no discriminatory motive for his firing. (See Bradley v. Harcourt, 

Brace & Co. (9th Cir. 1996) 104 F.3d 267 [“where the same actor is 

responsible for both the hiring and the firing of a discrimination 

plaintiff, and both actions occur within a short period of time, a 

strong inference arises that there was no discriminatory motive].)

Fox further pointed to evidence that Fox offered extra shifts after 

both the 2017 and 2018 shift reductions, that shifts had been in a 

general decline, that an editing bay had been closed, and that shifts 

from which Stock-Hendel was removed had not been restored.

In opposition to Fox’s motion, Stock-Hendel argued that the 

ages of the finishing editors most and least affected by the shift 

reductions/eliminations sufficiently supported an inference of 

discriminatory intent to state a prima facie case. To support 

his argument, Stock-Hendel offered his own declaration roughly 

estimating the ages of the various finishing editors working at 

Fox in 2017 and 2018. Specifically, his declaration provided that 

he “was the oldest finishing editor[ ],” that of “the other two oldest 

finishing editors, namely Patrick Williams and Jack Thannum, 

both of whom were in their middle 60’s, one was also eliminated 

from the schedule, and one had his number of shifts reduced. All 

of the remaining finishing editors, as of July 2018, were five to 

20 years or more younger than [Stock-Hendel]. [He] had worked 

with all of the other editors for many years and some [he] [knew]

their exact ages and [he] [knew] the approximate ages of others.”

To rebut this argument, Fox included the Morales declaration 

in its reply compendium. The declaration identifies the specific 
9

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

were regularly scheduled or fill-in editors. These birthdates reflect

ages of the various finishing editors that are generally consistent

with the estimated ages included in Stock-Hendel’s declaration. 

Fox argued that the specific ages of the finishing editors, when 

considered alongside how the shift reductions and eliminations 

affected each editor, actually precluded an inference of 

discriminatory intent, even at the prima facie stage.

Fox’s motion sought summary judgment or adjudication 

on the additional basis that, even assuming Stock-Hendel 

had met his burden of establishing a prima facie case for age 

discrimination, Fox had presented evidence establishing legitimate, 

nondiscriminatory reasons for the shift reductions affecting StockHendel—namely, the need for cost reductions and problems with 

Stock-Hendel’s work. Fox further argued Stock-Hendel had failed 

to provide evidence sufficiently supporting Fox’s proffered reasons 

were pretextual. To support these arguments, Fox submitted

declarations and documentary evidence reflecting that cost 

reductions motivated the reduction/elimination of finishing editor 

shifts in 2017 and 2018. Both Fox and Stock-Hendel also offered 

declarations and deposition testimony of Fox employees and 

officers, and of Stock-Hendel himself, regarding Stock-Hendel’s 

work performance.

1. Fox’s evidence regarding Stock-Hendel’s 

work performance

Fox offered evidence that Cofer, Manos and DiPietro viewed 

Stock-Hendel as a weaker performer than his peers, specifically 

that, compared to other finishing editors, he struggled to work 

independently, asked too many questions, was often argumentative, 

and was therefore less efficient and produced less work than his 

peers. Fox also offered deposition testimony of Stock-Hendel and 
10

two other finishing editors recalling complaints or comments about

the number of questions Stock-Hendel asked. In addition, Fox 

offered Yount’s deposition testimony that “[t]he general complaint 

is that [Stock-Hendel] was argumentative [¶] . . . [¶] [a]nd that he 

asked questions before he thought things through.”

According to lead room producer DiPietro, Stock-Hendel’s

need for “ ‘hand holding’ ” meant DiPietro had to give him only 

straightforward work. DiPietro was able to roughly quantify that 

he “would spend minimum twice as much with [Stock-Hendel] than 

I would with the other editors.” Cofer and Manos declared that, 

because of these issues, they targeted Stock-Hendel’s shifts when 

cost cuts mandated shift reductions in 2017 and 2018.

2. Stock-Hendel’s evidence regarding his 

work performance

In opposing summary judgment, Stock-Hendel offered 

evidence that he had never received any written communication 

from anyone at Fox reflecting the concerns about his work 

performance identified in Fox’s motion. Fox does not provide 

finishing editors with regular performance reviews. It was, 

however, the practice at Fox for the vice president over the editors’ 

group, Morales, to intervene when an editor was having chronic 

problems. Neither Morales nor anyone from the Fox human 

resources department ever notified Stock-Hendel that he had 

any chronic problems or that Morales needed to speak to StockHendel. Stock-Hendel also submitted evidence that he was paid 

40 percent more per hour than union scale and $10.00 more than 

the average hourly rate of his colleagues.

Stock-Hendel offered evidence that he had worked with 

20 to 30 room producers during his time at Fox, and that 

DiPietro was the only one who had ever told him he asked too 

many questions. Stock-Hendel did acknowledge at deposition 
11

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 StockHendel’s work as “venting” and was unable to estimate how much 

time he spent answering Stock-Hendel’s questions, or to provide 

an estimated number of average daily questions.

Stock-Hendel also offered declarations and deposition 

testimony of himself and others attesting to his abilities as a 

finishing editor while at Fox. Stock-Hendel testified that he only 

asked the room producer for information which was either not 

available to him at all, or which, if he had attempted to find the 

information himself, it would have greatly slowed the process. 

The questions generally only took a couple of minutes or less. 

Stock-Hendel also offered a declaration of Camella Coggins, 

a room producer who worked at Fox from 2000 to early 2016. 

According to Coggins, Stock-Hendel did not ask unnecessary 

questions, and she spoke highly of his work. Stock-Hendel also 

offered the declaration of Mark Bonn, a promo editor who worked 

at Fox from 1988 to 2016, indicating Stock-Hendel was one of 

two editors (the other being Williams) given the most complex or 

difficult projects. According to Bonn, Bonn requested Stock-Hendel

handle his promos while working at Fox because Stock-Hendel

required the least amount of direction and explanation and because, 

of all the finishing editors with whom Bonn worked, Stock-Hendel

and Williams’s work “was by far the best done and most error free.” 

Also according to Bonn, Williams and Stock-Hendel were always 

cooperative and easily grasped what was needed.
12

3. The court’s evidentiary rulings on 

summary judgment 

In its tentative ruling on Fox’s motion, the court addressed 

most of the parties’ evidentiary objections. On appeal, StockHendel challenges several evidentiary rulings sustaining objections

by Fox. These rulings are as follows:

• The court sustained Fox’s objections to portions of StockHendel’s declaration indicating he asked only routine 

questions seeking necessary information, and that these 

questions were of the type that room producers were 

employed to answer to assist the editing process. Fox 

objected to this evidence as irrelevant, lacking foundation 

and speculative. 

• The court sustained Fox’s objections to portions of StockHendel’s declaration indicating he was told by various people

that he was one of the faster editors. Fox objected on the 

basis that these portions of the declaration were irrelevant, 

lacked foundation, speculative, hearsay, and conclusory.

• The court sustained Fox’s objections to portions of the Coggins 

declaration regarding her views on Stock-Hendel’s work 

performance and work demeanor. Fox objected to these 

portions as irrelevant and conclusory subjective opinions, 

“as Coggins had no role in the decisions at issue,” and 

based on Coggins having last worked with Stock-Hendel in 

approximately 2007. 

• The court sustained objections to the testimony of Ware 

indicating that, in his experience, the questions he heard

Stock-Hendel ask were routine. 
13

The court did not expressly rule on Stock-Hendel’s 

objection to Fox’s submission of a reply compendium, and thereby 

presumptively overruled it. (See Reid v. Google, Inc. (2010) 50 

Cal.4th 512, 534.) 

4. The court’s ruling on Fox’s summary 

judgment and adjudication motion

Following a hearing, the court granted Fox’s motion 

for summary adjudication as to three issues.

1 First, the court 

concluded Stock-Hendel “[could not] establish a prima facie case 

for age discrimination.” In so concluding, the court noted that 

“[i]n reply, defendant Fox . . . provides evidence that all finishing 

editors—those whose shifts were eliminated and those who 

continued to work as finishing editors—were members of the 

protected class.” It also noted that an editor continued to work at 

Fox after Stock-Hendel’s termination who was not significantly

younger than Stock-Hendel (specifically, Thannum, who was 

16 months younger).

Second, the court concluded Stock-Hendel had failed to meet 

his burden of demonstrating a triable issue of fact as to whether 

Fox’s proffered reasons for eliminating his shifts were merely a 

pretext for age discrimination.

Third, the trial court granted summary adjudication in Fox’s 

favor on punitive damages, based on the court’s rulings regarding 

the prima facie case and nonpretextual motive.

1 The court also denied as moot the portions of Fox’s motion 

concerning two other named Fox entities, and denied summary 

adjudication on the issue of the timeliness of Stock-Hendel’s 

Department of Fair Employment and Housing complaint regarding 

the 2017 reduction of plaintiff’s shifts. Neither party challenges 

these rulings on appeal.
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 met its burden to show that Stock-Hendel 

could not establish a prima facie case. Because that finding is 

dispositive, we need not consider whether the court erred in its 

finding on pretext. As to Stock-Hendel’s evidentiary arguments, 

we conclude the court correctly overruled Stock-Hendel’s objection 

to the portion of Fox’s reply compendium on which we rely in our 

decision. We need not reach the remainder of the evidentiary 

arguments Stock-Hendel raises, because even considering the 

evidence Stock-Hendel claims was improperly excluded, we would 

still affirm the court’s judgment. 

A. General Legal Principles Regarding Age 

Discrimination Claims and Summary 

Judgment

Both federal and state law prohibit employers from 

discriminating against employees on the basis of age. (Gov. Code, 

§§ 12940, subd. (a) & 12941; 42 U.S.C. § 2000e et seq.; 29 U.S.C. 

§ 621 et seq.) “Because of the similarity between state and federal 

employment discrimination laws, California courts look to pertinent 

federal precedent when applying our own statutes.” (Guz v. Bechtel 

National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) 

An employee alleging age discrimination under state or 

federal law must be over 40 years old and must “ultimately prove 

that [an] adverse employment action taken was based on his or 

her age.” (Hersant v. Department of Social Services (1997) 57 
15

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

pp. 354−355.) “Since direct evidence of such motivation is seldom 

available, the courts use a system of shifting burdens as an aid 

to the presentation and resolution of age discrimination cases.” 

(Hersant, supra, at p. 1002.) Specifically, “California has adopted 

the three-stage . . . [¶] . . . McDonnell Douglas [Corp. v. Green

(1973) 411 U.S. 792 . . .] test,” which “reflects the principle that 

direct evidence of intentional discrimination is rare, and that such 

claims must usually be proved circumstantially. . . . [B]y successive 

steps of increasingly narrow focus, the test allows discrimination 

to be inferred from facts that create a reasonable likelihood of bias 

and are not satisfactorily explained.” (Guz, supra, at p. 354.)

At trial, this “burden-shifting system requires the employee 

first establish a prima facie case of age discrimination. If the 

employee does so, the employer is required to offer a legitimate 

non-age-based reason for the adverse employment action. If it 

does not, then the employee prevails. [Citations.] [¶] Given the 

varying nature of the problem, it is impossible to make an exact, 

all-inclusive statement of the elements of a prima facie age 

discrimination case applicable in all situations. [Citations.] The 

general requirement is that the employee offer circumstantial 

evidence such that a reasonable inference of age discrimination 

arises. The requirement is not an onerous one. [Citations.]

[¶] . . . [¶] When the employee has made this showing, the burden 

shifts to the employer to go forward with evidence that the adverse 

action was based on considerations other than age discrimination. 

When the employer offers evidence justifying the adverse action 

on a basis other than age, the burden shifts back to the employee 

to meet his ultimate obligation of proving that the reason for the 

adverse action was age discrimination. This ultimate issue is 
16

decided on all the evidence. [Citations.]” (Hersant, supra, 57 

Cal.App.4th at pp. 1002–1003.)

“The McDonnell Douglas framework is modified in the 

summary judgment context.” (Serri v. Santa Clara University 

(2014) 226 Cal.App.4th 830, 861.) On a summary judgment motion 

“[i]n an employment discrimination case, . . . [t]he ‘employer, as the 

moving party, has the initial burden to present admissible evidence 

showing either that one or more elements of plaintiff’s prima facie 

case is lacking or that the adverse employment action was based 

upon legitimate, nondiscriminatory factors.’ ” (Zamora v. Security

Industrial Specialists, Inc. (2021) 71 Cal.App.5th 1, 32; see Code 

Civ. Proc., § 437c, subds. (c) & (p)(2).)

Whether Fox has met this burden as the defendant in an age 

discrimination case presents a question of law for the court, which 

we review de novo. (Caldwell v. Paramount Unified School Dist.

(1995) 41 Cal.App.4th 189, 201.) In so doing, we view the evidence 

in the light most favorable to Stock-Hendel as the party opposing 

the motion. (Lonicki v. Sutter Health Central (2008) 43 Cal.4th 

201, 206.)

B. Fox Presented Evidence Fatal to Stock-Hendel’s 

Prima Facie Case 

In O’Connor v. Consolidated Coin Caterers Corp. (1996) 

517 U.S. 308, the United States Supreme Court made clear that

being replaced by someone who is under 40 years old is not an 

element of a prima facie age discrimination case, even though 

an age discrimination plaintiff must himself be over 40 years.

Specifically, the Court noted that the Age Discrimination 

in Employment Act (ADEA), like the FEHA, “does not ban 

discrimination against employees because they are aged 40 or 

older; it bans discrimination against employees because of their 

age, but limits the protected class to those who are 40 or older. 
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 requires 

‘evidence adequate to create an inference that an employment 

decision was based on a[n] [illegal] discriminatory criterion’ ”

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

context, such an inference cannot be drawn from the replacement 

of one worker with another worker insignificantly younger.” (Id. at

p. 313, italics added.)

Relying on this reasoning, several courts—including our state 

Supreme Court—have identified replacement by, or more favorable 

treatment for, a “significantly younger” person as an element of a 

prima facie age discrimination case, at least in the absence of direct 

evidence of discriminatory intent. (See, e.g., Guz, supra, 24 Cal.4th

at p. 366 [noting that there is “no basis to suspect a motive of 

prohibited bias” when “an age-protected worker is directly replaced 

by a person not significantly younger”]; ibid. [“[i]n the context of a 

work force reduction . . . [an age discrimination plaintiff] need only 

show, prima facie, that persons significantly younger, but otherwise 

similarly situated, were ‘ “treated more favorably” ’ ”]; Grosjean v. 

First Energy Corp. (6th Cir. 2003) 349 F.3d 332, 335 [“[i]n age 

discrimination cases, the protected class includes all workers at 

least 40 years old and the fourth element is modified to require 

replacement not by a person outside the protected class, but merely 

replacement by a significantly younger person”].) Moreover, 

“[a] majority of [federal] circuit courts . . . have held that an 

age difference of less than [10] years, without more evidence, 

is insufficient to make a prima facie case of age discrimination.”

(France v. Johnson (9th Cir. 2015) 795 F.3d 1170, 1174 (France).) 
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 “flexibility.” (See, e.g., 

Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 917 

[FEHA case].) But these courts have recognized such flexibility 

on the basis that replacement by a significantly younger worker 

is only one possible basis on which a court could infer “that the 

[challenged employment action] occurred under circumstances 

giving rise to an inference of age discrimination,” which is the 

ultimate requirement of a prima facie age discrimination case. 

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

see Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 

1735, 1755 [“[t]he purpose of the prima facie case is for the plaintiff 

to produce evidence demonstrating that the employment decision 

occurred in ‘circumstances which allow the court to infer unlawful 

discrimination’ ”].) Thus, whether or not replacement by a 

significantly younger employee is a formal element of an age 

discrimination claim, the law is clear that a plaintiff cannot 

establish discriminatory intent at the prima facie stage solely 

by showing the employer replaced the plaintiff with an individual 

not significantly younger than the plaintiff or by showing the 

employer’s disparate treatment of plaintiff and an individual not 

significantly younger than the plaintiff. 

This line of cases is highly relevant to the instant appeal, 

because the theory underlying Stock-Hendel’s prima facie case 

relies entirely on other finishing editors’ ages relative to his own, 

and how each editor’s shift changes in 2017 and 2018 line up 

with those age differences. Namely, Stock-Hendel argues that 

an inference of age discrimination arises from the circumstances 
19

of his firing, because Fox chose him, the oldest of the 10 finishing 

editors, as well as another of the oldest finishing editors (Williams),

to lose all shifts in 2018. He further argues that in 2017, Fox 

reduced the shifts of the oldest finishing editors more than it 

reduced the shifts of the other finishing editors. To support this 

aspect of his prima facie case, Stock-Hendel relies on his declared 

estimates regarding the ages and relative ages of the relevant 

finishing editors as a group, which he acknowledged at the hearing 

before this court are generally consistent with—although far less 

specific than—the specific ages of each relevant editor contained in 

the Morales declaration.

At this point in our summary judgment analysis, we must 

pause to address Stock-Hendel’s challenge to the court’s implicit 

overruling of his objection to the reply compendium, at least to 

the extent that the compendium contains the Morales declaration. 

We conclude the court did not abuse its discretion in 

implicitly overruling this objection to the extent doing so allowed 

Fox to offer the Morales declaration for the first time on reply. In

Fox’s original motion, the basis on which Fox sought to establish 

Stock-Hendel could not make a prima facie showing of 

discriminatory intent was not the relative ages of the other

finishing editors, but Stock-Hendel’s testimony that he had never

heard any discriminatory comments regarding age, and that Fox

had repeatedly hired him for years while he was in his 60’s. In

opposing the motion, Stock-Hendel did not dispute any of this 

evidence. Rather, he argued that the relative ages of the finishing 

editors and how the shift reductions/eliminations affected them, not 

any discriminatory comments, provided the “something more” on 

which Stock-Hendel’s prima facie case relied to support an inference 

of discriminatory intent. To rebut this, Fox submitted the Morales 

declaration, which contained more precise information about the 
20

ages and jobs of the finishing editors. Although Fox had the burden 

in its initial motion, it had the burden of proving a negative—that 

Stock-Hendel could not establish discriminatory intent in any way, 

on any basis. Denying Fox the ability to offer evidence on reply 

that Stock-Hendel had not established discriminatory intent in a 

way Stock-Hendel raised for the first time in its opposition would be 

to require Fox to anticipate and counter every possible way StockHendel might attempt to make his prima facie case. The court 

acted within its discretion in declining to require this and instead

considering the Morales declaration as proper rebuttal evidence 

over Stock-Hendel’s objection. We consider it in our analysis as 

well. 

Returning to our summary judgment analysis, we note that 

Stock-Hendel’s status as the oldest finishing editor in the group 

of finishing editors at Fox in 2017 and 20182 (and the status of 

Thannum and Williams as the second and third oldest, respectively) 

is evidentially insignificant, given the size of that group. That

group was comprised of at most 10 people—seven regularly 

scheduled editors, and three “fill-in” editors. “[W]here alleged 

numerical favoritism of younger workers arose within an extremely 

small employee pool, courts have rejected any consequent inference 

of intentional bias on grounds, among others, that the sample was 

too minuscule to demonstrate a statistically reliable discriminatory 

pattern.” (Guz, supra, 24 Cal.4th at p. 367; see Rose, supra, 902 

F.2d at p. 1423 [where a plaintiff chooses to rely solely on statistical 

evidence to carry his prima facie burden, “ ‘[he] must show a stark 

pattern of discrimination unexplainable on grounds other than 

age’ ”]; Diaz v. Eagle Produce Ltd. Partnership (9th Cir. 2008) 521 

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 disregarded as insufficient 

to support inference of discrimination]; Sengupta v. MorrisonKnudsen Co. (9th Cir. 1986) 804 F.2d 1072, 1076 [disregarding 

evidence that, in a 28-employee pool, four of five African-Americans 

were laid off, as insufficient to establish prima facie age 

discrimination because “ ‘ “statistical evidence derived from an 

extremely small universe” . . . “has little predictive value and must 

be disregarded” ’ ”].)

But even setting aside the size of the finishing editor pool,

the evidence Fox presented on summary judgment prevents us 

from inferring discriminatory intent from Fox’s treatment of 

Stock-Hendel as compared to its treatment of other finishing editors 

in that pool. Namely, the evidence of the specific ages and shift 

reductions of finishing editors reflects that some of the editors who

lost fewer shifts than did Stock-Hendel in 2017, were “significantly” 

younger than Stock-Hendel—but some were not. Similarly, some of 

the finishing editors who continued to be employed at Fox following 

the 2018 shift reductions were significantly younger than StockHendel, but some—in particular Thannum, who was 65 years at

the time, only 16 months younger than Stock-Hendel—were not. 

(See cf. France, supra, 795 F.3d at p. 1174 [eight-year average 

age difference between plaintiff and younger employees favored for 

promotion would have been insufficient even to support prima facie 

case under ADEA, had age difference not been bolstered by other 

evidence].)

Our conclusion is bolstered by the fact that the difference 

between the average age of finishing editors retained in 2018 and 

the average age of those terminated—11.125 years3—is just barely 

3 The average age of the finishing editors terminated in 2018 

(Stock-Hendel and Williams) was 65 years. The editors retained 
22

at the threshold amount of time courts begin to consider potentially 

significant (at least where, as here, there is no other evidence 

supporting intent). (See France, supra, 795 F.3d at p. 1174 

[adopting presumption that less than 10-year difference 

presumptively insignificant]; Diaz, supra, 521 F.3d at p. 1209 

[“[t]hat the average age of the workers hired during the two-year 

period is approximately nine and a half years younger than the 

average age of those laid off—38.75 versus 48.4 years—also fails to 

justify an inference of age discrimination”].) “The disparity is not 

so stark as to suggest bias rather than pure chance.” (Ibid.) This 

comparison becomes even less impressive when one segregates 

and compares the treatment of only those truly “similarly situated” 

to Stock-Hendel—namely, regularly scheduled finishing editors,

rather than both regularly scheduled and fill-in editors. The 

average age of regularly scheduled editors retained in 2018 was 

56.2 years, whereas the average age of those terminated in 2018 

is 65 years, reflecting a presumptively insignificant difference of 

8.8 years.

Under California Supreme Court precedent, mere age 

comparisons between Stock-Hendel and the handful of other

finishing editors Fox retained in 2018 and/or whose shifts Fox 

reduced to a lesser degree than it did Stock-Hendel’s in 2017, 

cannot alone support a reasonable inference of age discrimination. 

(See Guz, supra, 24 Cal.4th at p. 369 [employer’s alleged disparate 

treatment of plaintiff and two younger workers, one eight years 

younger and the other six years younger, did not support reasonable 

inference of age discrimination, in absence of independent 

in 2018 were Frederick, Thannum, Ware, Yount, Cooper, Reichlin, 

Way, and Cheung. The average age of that group was 53.875 years.
23

indication decision maker considered their age differences 

significant].)

Nor has Stock-Hendel identified any other evidence 

suggesting discriminatory intent. In arguing to the contrary, 

Stock-Hendel points to certain evidence that is also relevant to 

the issue of pretext. Specifically, he argues that evidence regarding 

his capabilities as an editor and Fox’s failure to formally censure 

him regarding his performance, when combined with what StockHendel characterizes as weak evidence that Stock-Hendel was 

less capable than other finishing editors, render Fox’s claim that 

its employment decisions were based on Stock-Hendel’s work 

performance implausible, and that this implausibility supports 

an inference of discriminatory intent at the prima facie stage.

We conclude that, as a matter of law, the evidence does not 

support an inference of discriminatory intent in this way. A 

reasonable trier of fact could not find based thereon that it was 

implausible Fox chose to eliminate Stock-Hendel’s shifts as part of 

cost-cutting measures because of his capabilities relative to those 

of the other finishing editors. (See Hersant, supra, 57 Cal.App.4th 

at p. 1005 [employee “ ‘must demonstrate such weaknesses, 

implausibilities, inconsistencies, incoherencies, or contradictions 

in the employer’s proffered legitimate reasons for its action that 

a reasonable factfinder could rationally find them “unworthy 

of credence” ’ ”].) First, evidence that Stock-Hendel’s previous 

supervisors did not take issue with his work in and before 2016 

does not support a reasonable inference that, in 2017 and 2018, 

it was implausible for the lead room producer (DiPietro) to take 

issue with it. Second, that Stock-Hendel never received a negative 

performance review, and/or that Morales never counseled him 

regarding his performance, also cannot support a reasonable 

inference that Fox’s stated motivation was implausible, as Stock-
24

Hendel suggests its can. Finishing editors did not receive any

formal performance reviews. And that Fox had not previously 

experienced sufficient problems with Stock-Hendel’s work to refer 

the issue to Morales, or that Stock-Hendel was generally good at his 

job, are not bases on which a jury could reasonably conclude it is 

implausible that, as part of an effort to cut costs—something StockHendel does not dispute was occurring—Fox cut Stock-Hendel’s 

shifts, as opposed to those of some other finishing editor, because 

DiPietro felt Stock-Hendel was slower than other finishing editors

(rather than being generally slow or bad at his job). (See Foroudi v. 

The Aerospace Corp. (2020) 57 Cal.App.5th 992, 1010 [“because 

[employee] was laid off as part of a company-wide reduction in force, 

the fact that he was terminated for minor issues alone does not 

raise an inference of age discrimination”].) Finally, DiPietro’s 

deposition testimony does not, as Stock-Hendel argues, support a 

reasonable inference that DiPietro’s declared concerns about StockHendel were “false.” The deposition testimony Stock-Hendel points 

to reflects that DiPietro was unable to estimate the exact amount 

of time Stock-Hendel spent asking questions, that DiPietro did not 

recall whether he identified this as a problem to others, and that 

DiPietro instead recalled only “ ‘venting’ ” to his colleagues about it. 

None of this testimony contradicts DiPietro’s declaration or 

supports a reasonable inference that it is false—especially where, 

as noted, it is undisputed that Fox did not have a formal review 

process for finishing editors.

In sum, even considering, as Stock-Hendel argues we should,

evidence the court primarily considered at the pretext stage, and

even though the burden on an age discrimination plaintiff is 

“ ‘not onerous’ ” at the prima facie stage (Guz, supra, 24 Cal.4th 

at p. 355), Fox has established that Stock-Hendel cannot meet this 

burden. (See Hersant, supra, 57 Cal.App.4th at p. 1002 [prima 
25

facie case requires, at a minimum, that the “employee offer 

circumstantial evidence such that a reasonable inference of age 

discrimination arises”].) The court did not err in granting Fox 

summary adjudication on the issue. Under the McDonnell Douglas

framework, this is an independently sufficient basis for affirming 

the judgment. 

C. Stock-Hendel’s Evidentiary Arguments

Because the only portion of the reply compendium on which 

we rely is the Morales declaration, we need only consider whether 

the court erred in presumptively overruling an objection to that 

portion of the reply compendium. We conclude above that the 

court did not abuse its discretion in presumptively overruling 

Stock-Hendel’s objections to the reply compendium to the extent 

it contained the Morales declaration. 

We decline to reach Stock-Hendel’s remaining evidentiary 

objections, because even if Stock-Hendel is correct and the court 

improperly excluded and/or improperly permitted the various pieces 

of evidence he identifies, none of it would change our analysis on 

appeal. 
26

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs 

on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.