Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. 02CECG02240, Mark W. Snauffer, Judge.
Law Office of Dean B. Gordon and Dean B. Gordon, Murray & Associates and Lawrence D. Murray, Johnson & Beck, and Mark D. Johnson, for Plaintiff and Appellant.
Betts & Wright, James B. Betts and Joseph D. Rubin, and Hilda Cantu Montoy, for Defendant and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Appellant Stephanie Stribling appeals from the entry of judgment granting summary judgment to respondent, the City of Fresno (the City). Appellant contends that the trial court erred in granting summary judgment because respondent failed to establish that it was entitled to the affirmative defense of safety. We affirm in part, and reverse in part.
Stribling filed the original complaint against the City of Fresno and Does 1 through 100. No Doe defendants were identified, and none have made an appearance. Thus, for simplicity, we will ignore the Doe defendants.
FACTUAL BACKGROUND
Stribling has been employed by the City of Fresno Police Department since May 24, 1999. She was initially hired in a temporary capacity as a Community Service Officer (CSO), but was released in November of 1999 before being rehired as a permanent CSO on January 10, 2000. A CSO’s job responsibilities consists of performing, under close supervision, “responsible public contact work and assists law enforcement officers in non-hazardous duties.” As a CSO, Stribling took reports on missing persons; marked cars with expired tags for violations; investigated burglaries where the subject had already left the premises; and took witness statements at traffic accidents.
In February of 2000, Stribling submitted her application to be a Police Academy Trainee. On approximately May 10, 2000, she “received a conditional offer of employment as a Police Academy Trainee, subject to meeting the City’s medical and psychological requirements.”
On May 25, 2000, Stribling took a pre-employment physical. “She tested corrected 20/30 in each eye, and 20/25 combined when wearing her hard contact lenses, which she was later told was within the City of Fresno’s guidelines. However, she was informed that she failed the vision test because she wore hard contacts.” The City requires greater visual acuity for people wearing hard contacts and/or glasses because it feared that such assistive devices were more likely to get dislodged, lost, or broken during police activity.
Stribling was informed that she had passed the medical examination except for the visual acuity portion. She appealed her medical disqualification, and asked for a written vision standard applicable to police officers in order to assist her and her eye doctors in determining whether she was a suitable candidate for Lasik eye surgery. She did not receive the written standards at that time, but decided nonetheless to undergo Lasik eye surgery to improve her visual acuity.
Stribling underwent Lasik eye surgeries on both her eyes on September 11, 2000, and eye enhancement surgeries on October 26, 2000. On or about November 27, 2000, the City received documentation from Stribling’s eye care practitioner that indicated that Stribling had an uncorrected visual acuity of 20/30 in the right eye and 20/40 in the left eye. Upon receiving the information, the City indicated that Stribling was medically qualified for the position of Police Academy Trainee. She began at the academy in January of 2001. After successfully completing the Police Academy, in June of 2001, Stribling was promoted to probationary Police Officer Recruit.
As a Police Officer Recruit, Stribling was expected to perform all law enforcement duties in the protection of life and property. The job description for a Police Officer Recruit provides in pertinent part:
“Police Officer Recruit is the entry level class in the Police series assigned full arrest and citation powers under the California Penal Code. Incumbents receive general and special instructions and work under the direct supervision of a training officer during the formal field training program. This class differs from Police Officer in that the latter is the journey level class in which incumbents perform routine law enforcement work without direct supervision.”
A Police Officer Recruit is expected to be able to drive safely and the City allows Police Officer Recruits to carry loaded firearms.
Police Officer Recruits have a six-month probationary period. Part of their training consists of 15 weeks of field training with a supervising officer.
Once a Police Officer Recruit becomes a Police Officer, there is an additional probationary period of 12 months.
During her field training as a probationary Police Officer Recruit, Stribling experienced vision fluctuations. Temporary vision fluctuation is a known side-effect of Lasik eye surgery. Because of her vision fluctuations, Stribling wore different assistive devices depending upon her vision at the particular moment. According to appellant,
“My vision was such that I could wake up in the morning seeing nearsighted, and by the afternoon it would be farsighted, so the glasses and contacts I was using, I’d go from one set to another trying to stabilize them so I could see as best as I could.”
Stribling also testified that “[d]uring my 6th week of field training[,] I noticed I was having trouble seeing street signs and house numbers.”
Her supervising officers also testified about Stribling’s problems seeing road signs and street addresses. One of them, Officer Al Avila, submitted a declaration that Stribling drove through a stop sign.
Because of Stribling’s vision fluctuations, in September of 2001, the City put her on light duty, which consisted of call screening, until her vision stabilized. At the City’s request, Stribling’s eye care practitioner supplied a note stating that she should be put on light duty.
Stribling was placed on light duty the week following her sixth week of her field training. She thus needed an additional nine weeks of field training to qualify to complete her training when she was terminated by the City.
About three months later, Stribling was fired as a Police Officer Recruit during the probationary period, and, on December 10, 2001, was given a position as a CSO again. She was told that she could reapply for a police position as soon as her vision stabilized.
At oral argument, appellant’s counsel averred that Stribling was placed on light duty for less than three months, from mid-September to early December of 2001. The record, however, indicates that Stribling was placed on light duty for three months. Stribling was placed on light duty on September 5, 2001, the decision to terminate her was made on November 29, 2001, and she was notified of her termination and terminated on December 6, 2001. However, she was treated as being directly transferred from her Police Officer Recruit position to her CSO position on December 10, 2001. In any case, September 5 to December 6 is a period of three months. Counsel may have mistaken a September 12, 2001, e-mail from Sgt. Flores to Dan Turner as establishing the date when Stribling’s light duty began. The e-mail, however, does not establish the date when Stribling began light duty. Rather the date when Stribling started light duty can be inferred from Stribling’s testimony that she was counseled about her improper use of the e-mail system on the third day of her light duty work, and the date of that counseling was September 7, 2001.
Stribling filed a complaint with the Department of Fair Employment & Housing (DFEH) on or about April 23, 2002. The complaint alleged that she was being mistreated and terminated because of her vision fluctuations. It alleged that the City made her working conditions intolerable.
She sought reinstatement as a Police Officer Recruit on July 16, 2002. This was denied on or about December 23, 2002.
She applied again on or about January 20, 2003. She filed a second DFEH complaint on January 23, 2003. This complaint included the further allegation that the City retaliated against her given that her re-application for a Police Officer Recruit position was denied even though she resubmitted the same application that was successful previously.
According to Stribling, around this time period, then Sgt. Burke Farrah, who was Stribling’s supervisor, learned that he was supposedly named as a defendant in Stribling’s DFEH complaint. This made him uncomfortable, frustrated, and upset. Sgt. Farrah subsequently gave Stribling a negative evaluation and instigated an Internal Affairs investigation of her because she allegedly failed to write adequate reports of approximately 10 calls that she had taken.
Shortly thereafter, on or about April 2, 2003, Stribling was terminated from her CSO position. After appealing through her union representative, she was subsequently reinstated. She filed a third DFEH complaint based upon this incident, alleging that it was an attempted retaliation by the City for her prior DFEH and California Fair Employment and Housing Act (FEHA) complaints. Thereafter, her application for Police Officer Reserve was denied.
On or about July 17, 2004, Stribling sustained injuries to her back and shoulder when she was hit by a car while performing her duties as a CSO. She is currently on worker’s compensation as a result of her injuries. It is presently unknown whether she will physically be able to return to work as a police officer or a CSO.
PROCEDURAL BACKGROUND
On December 3, 2003, Stribling filed a six-count complaint against the City of Fresno and Does 1 through 100. In her Second Amended Complaint, Stribling alleged that defendants violated the FEHA, Government Code, section 12900 et seq., in five ways: (1) unlawfully discriminating against her because of her medical condition and physical disability by removing her from the position of Police Officer Recruit in violation of section 12940, subdivision (a); (2) failing to provide reasonable accommodations including providing her with the opportunity to recuperate and regain her corrected eyesight in violation of section 12940, subdivision (m); (3) failing to take all reasonable steps to prevent a violation of FEHA, including maintaining a policy of documenting and testing for essential job functions, in violation of section 12940, subdivision (i); (4) retaliation for her assertions of her FEHA rights by making her work conditions worse, terminating her, and failing to rehire her in violation of section 12940, subdivision (h), and (5) refusing to conduct a good faith interactive process. Stribling also brought a claim for violation of the Family Care and Medical Leave Act (FCMLA), but she abandoned this claim during the summary judgment stage.
All further section citations are to the Government Code unless otherwise stated.
According to Stribling’s complaint, “[o]n or about June 28, 2001, PLAINTIFF was hired by Defendant CITY OF FRESNO in the capacity of police officer, as defined by Penal Code Section 830, et seq. PLAINTIFF performed her duties in a wholly competent, diligent and professional manner and in manner [sic] consistent with the interests of her employer, except as stated herein. She worked for Defendant CITY OF FRESNO until she sought a ‘reasonable accommodation,’ and was, after having had a reasonable accommodation for about three months, terminated from her position due to her physical and medical condition.” According to Stribling, she “had a medical condition and physical disability due to poor eyesight uncorrected, and Defendants were aware of her medical condition and physical disability and regarded her as having such a condition.”
On April 14, 2005, the City of Fresno moved for summary judgment, or in the alternative, summary adjudication. The City argued that Stribling could not establish a prima facie case of disability discrimination because: (1) she did not have a disability since she suffered from a temporary vision problem caused by an elective surgery; (2) she was not a “qualified individual” under FEHA because she was unable to perform the essential functions of a Police Officer Recruit due to the vision fluctuations, and (3) the City did not discharge her because of her disability but for work-related qualifications.
The City also contended that it did reasonably accommodate Stribling when it placed her on light duty. In addition, when it terminated Stribling, it transferred her back to a CSO position and advised her to reapply for a Police Officer Recruit position when Stribling’s vision stabilized.
The City also argued that even if it did discriminate against Stribling, it was entitled to do so under the affirmative defense of safety.
In her opposition, Stribling argued that there were triable issues of fact on whether she was disabled for the purposes of FEHA. With respect to the affirmative defense of safety, Stribling contended that the City had not met its burden of proof. She also argued that there were triable issues remaining on her retaliation claim.
In its reply, the City reiterated its argument that Stribling did not establish a prima facie case of disability discrimination. With respect to the affirmative safety defense, the City asserted that its decision to remove her from field duty was justified under the circumstances. The City also addressed the retaliation claim in detail for the first time, arguing that Stribling’s evidence was insufficient to establish a prima facie case of discrimination.
On September 14, 2005, the trial court ruled in favor of respondent. The trial court concluded that:
“As to the FEHA-based claims, i.e., the First through Fifth Causes of Action, the Court finds that defendant has met its burden to show that it has a complete defense. Defendant asserts that because of her vision problems, plaintiff could not perform her duties ‘in a manner that would not endanger … her health or safety or the safety of others even with reasonable accommodations [i.e. glasses and contact lenses].’ (Gov. Code, §§ 12940(a)(1) and (2)[.]) The Court agrees, and also finds that plaintiff has failed to raise a triable issue as to this defense.”
In reaching this conclusion, the trial court ruled on evidentiary objections and addressed factual assertions made by defendant and plaintiff. The trial court never reached the other grounds for summary judgment raised by respondent.
Stribling timely appealed.
DISCUSSION
I.
Standard of Review
A defendant moving for summary judgment must show that either one or more elements of the “cause of action … cannot be established” or that there is a complete defense to that cause of action. (Code Civ. Pro., § 437c, subd. (p)(2).) Here, respondent moved for summary judgment based upon several grounds, including the complete affirmative defense of safety. To show a complete defense, a defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) Thus, where a defense has several elements, lack of substantial evidence on any element bars relief “even if the plaintiff failed to introduce a scintilla of evidence challenging that element.” (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831.) The defendant cannot base its showing on plaintiff’s lack of evidence to disprove its claimed defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 472 (Consumer Cause).)
Once defendant meets this burden, the burden shifts to plaintiff to produce admissible evidence showing the existence of a triable issue of fact regarding the affirmative defense. (Consumer Cause, supra, 91 Cal.App.4th at p. 468.) The opposing party may not rely upon allegations or denial in its pleadings. Rather, it must “set forth the specific facts showing that a triable issue of material fact exists .…” (Code Civ. Pro., § 437c(p)(2); Santa Ana Unified School District v. Orange County Development Agency (2001) 90 Cal.App.4th 404, 411; FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 73-75, fn. 4.)
“On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. [Citation.]” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)
II.
Discrimination Claims Under FEHA
In her First, Second, Third, and Fifth Causes of Action, Stribling contends that the City discriminated against her based upon her medical condition and physical disability of poor uncorrected vision. The trial court did not rule on whether Stribling had met her prima facie case of disability discrimination. Rather, it ruled that the City was not liable for any disability discrimination because the City had established that it was entitled to the affirmative defense of safety under section 12940, subdivision (a)(1). We agree that the City was entitled to the affirmative defense of safety as to these causes of action.
A.
Section 12940, Subdivision (a)(1)
In its motion for summary judgment, the City asserted that even if Stribling could establish a prima facie case of disability discrimination, it was entitled to summary judgment based on the affirmative defense of safety under section 12940, subdivision (a)(1) of FEHA. Section 12940, subdivision (a)(1) provides in pertinent part:
“This part does not prohibit an employer from … discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from … the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.”
As provided in the Code of Regulations,
“(c) It is a permissible defense for an employer or other covered entity to demonstrate that after reasonable accommodation the applicant or employee cannot perform the essential functions of the position in question in a manner which would not endanger his or her health or safety because the job imposes an imminent and substantial degree of risk to the applicant or employee.
“(d) It is a permissible defense for an employer or other covered entity to demonstrate that after reasonable accommodation has been made, the applicant or employee cannot perform the essential functions of the position in question in a manner which would not endanger the health or safety of others to a greater extent than if an individual without a disability performed the job.” (2 Cal. Code Regs., § 7293.8(c) & (d), italics added.)
The employer must prove this affirmative defense by a preponderance of the evidence. (Raytheon Co. v. Fair Employment & Hous. Com. (1989) 212 Cal.App.3d 1242, 1252.)
Appellant argues that summary judgment should not have been granted because respondent has not met its burden of proof on whether the affirmative defense of safety in subsection 12940, subdivision (a)(1) applies in this case. Appellant also contends that there were triable issues of fact on whether she was disabled or unable to perform the essential functions of a Police Officer Recruit without endangering herself or others even with reasonable accommodations. We disagree.
In order to establish this defense, the City must establish that it discharged Stribling because she was unable to perform the essential duties of a Police Officer Recruit even with reasonable accommodations because of a physical or mental disability. In concluding that the City was entitled to this defense, the trial court relied upon the following facts: (1) that Stribling experienced vision fluctuations during her training as a Police Officer Recruit; (2) that the vision fluctuations caused Stribling to have some difficulty reading addresses, seeing at night, seeing things at a distance, and utilized different assistive devices depending upon her vision; (3) that because of safety and liability issues, the City made a determination to place Stribling on light duty; and (4) that Stribling’s eye care practitioner indicated that she should not drive a patrol car. Of particular importance was the trial court’s reliance on the declaration of Lori Grove, the Field Training Coordinator for the City of Fresno Police Department.
Grove declared that: “Plaintiff’s vision fluctuation caused significant safety and liability concerns for Plaintiff, other officers, the public and the City. The vision fluctuation could potentially impact Plaintiff’s ability to respond to criminal conduct, fires, accidents or other unusual occurrences; her ability to identify or report suspects, weapons, unusual circumstances; her ability to search for and preserve evidence; her ability to identify and report characteristics of assailants, victims and witnesses; her ability to drive at high speeds; her ability to locate addresses upon dispatch; her ability to use firearms and deadly force. Moreover, Plaintiff was, in fact, using several assistive devices (e.g., glasses, contacts) depending on her vision. This also posed a significant risk of harm if her vision changed and she did not have the proper assistive device, or the assistive device was dislodged or lost during an altercation or other police activity.”
Thus, the trial court found that Stribling could not perform the essential functions of a Police Officer Recruit even with reasonable accommodations (e.g., glasses and contacts). Stribling contends that the trial court erred in granting summary judgment because: (1) the City never set forth the essential functions of a Police Officer Recruit, (2) the City did not provide factual support for its conclusion that Stribling could not perform the essential functions safely with glasses and contacts, and (3) reasonable accommodations should not be limited to glasses and contacts. We disagree.
The trial court found that the essential functions of a Police Officer were those identified in the declaration of Lori Grove, for example, responding to criminal conduct, driving patrol cars at high speeds, and using firearms or deadly force. Under FEHA, “[e]vidence of whether a particular function is essential includes, but is not limited to, the following: [¶ ] (A) The employer’s judgment as to which functions are essential. [¶ ] (B) Written job descriptions prepared before advertising or interviewing applicants for the job. [¶ ] (C) The amount of time spent on the job performing the function. [¶ ] (D) The consequences of not requiring the incumbent to perform the functions.” (§ 12926, subd. (f)(2).) Based upon the record, Police Officer Recruits perform all functions of Police Officers except that Police Officer Recruits perform these functions under the supervision of other officers. (See, e.g., Fresno Municipal Code, § 1-404.3 [“[A]ll peace officers employed by the Police Department are hereby empowered to enforce, and are charged with the duty of enforcing, any and all provisions of the City, of the State of California, together with such powers as are conferred upon them by the city.”]) Grove’s declaration merely recites the various essential functions of Police Officer Recruits.
Stribling also contends that the City did not show that she could not perform the essential functions of a Police Officer Recruit safely. She argues that the City had an irrational belief, unsupported by any medical evidence, that her condition threatened the health or safety of others. She also argues that the City did not provide an individualized assessment of her ability to perform the essential functions safely. Again, we disagree.
The City has a legitimate interest in ensuring that its officers have sufficient vision to perform the essential functions of a police officer. The record shows that the City had specific information about Stribling’s performance and vision-related problems from her field training officers. It combined the specific information with the common knowledge that persons who have problems seeing house signs and street signs would have problems driving patrol cars or using firearms safely. Under FEHA, this approach is permissible. (See E.E.O.C. v. United Parcel Services, Inc. (9th Cir. 2005) 424 F.3d 1060, 1075 [applying FEHA law to conclude that U.P.S. was able to assert a safety defense with respect to drivers who could only see out of one eye.]) The evidence shows that it would have been dangerous to Stribling or others for her to drive or use firearms when her vision was fluctuating. As there was no defined times on how or when her vision fluctuated, it would be irrational for the City to permit her to be driving or using firearms while her vision was fluctuating. Further, there was also some medical evidence in this case that Stribling could not perform the essential function of driving a patrol vehicle as Stribling’s eye care practitioner indicated that she should “not be driving in a patrol car” until her vision stabilized.
Stribling also contends that the City did not reasonably accommodate her by providing her more time to recuperate from the effects of her Lasik surgery. Her argument is that, once she received the proper contacts, her vision problems ceased and there were no safety issues. Thus, the City should have waited until she received her contacts before terminating her. However, it is undisputed that the City had placed her on light duty for three months, and during this time, the City was provided no evidence that her vision had stabilized. Rather, the City received indications that Stribling’s vision had not stabilized because, on November 14, 2001, the City received notice from Stribling’s eye care practitioner that Stribling would be getting contacts that would correct the vision problems soon. However, the City had no idea whether the contacts actually would fix the vision problems and thus would permit Stribling to fulfill her field training duties in sufficient time for the City to utilize her services as a police officer. In fact, although the contacts did correct her vision problems, the contacts arrived past the date of the probationary period due to third-party errors.
We do not believe FEHA requires that the City hold off on achieving its full complement of Police Officers by waiting until Stribling received the proper assistive devices and then completing her field training, particularly in light of the fact that the City had to replace peace officers who were called away due to the events of September 11, 2001. The fact that the City waited for 3 months before demoting her to a CSO position and advising her to reapply when her vision stabilized is sufficient to satisfy the reasonable accommodation requirement of FEHA.
Stribling also made evidentiary and procedural objections which the trial court rejected. Many of Stribling’s objections do not dispute the fact that Stribling experienced vision fluctuations and had trouble seeing street signs and house numbers. In fact, her complaint alleges that she has “a medical condition and physical disability due to poor eyesight uncorrected,” and that she “was having trouble seeing street signs and house numbers.” Stribling disputes that there was a causal connection between the vision fluctuation and her problems seeing street signs and house numbers. She also contends that none of the declarants, such as Officer Al Avila, had the background to testify about vision problems. The trial court concluded that the declarants’ conclusion that the vision fluctuations caused Stribling to have difficulty seeing street signs and house numbers was a lay opinion that was rationally based upon the declarants’ perception. After careful review of the objections, we find that the trial court did not abuse its discretion by overruling the objections and admitting the evidence. Moreover, an evidentiary ruling that Stribling’s problems seeing street signs and house numbers were not caused by vision fluctuations would not assist Stribling. If her problems seeing signs and numbers were not caused by a disability, then the City would have satisfied its burden that it terminated Stribling because of those performance-related problems instead of because she had a physical disability.
We also reject Stribling’s argument that the City failed to follow the “Golden Rule” that all facts to be relied upon by the trial court be set forth in the moving party’s separate statement. (See United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337, superseded by statute on other ground, [“‘This is the Golden Rule of Summary Adjudication: If it is not set forth in the separate statement, it does not exist.’”].)
Here, the facts necessary for a finding that the City was entitled to the affirmative defense of safety were in the separate statement of facts. To the extent that the necessary facts were not clearly organized in the separate statement, it was left to the trial court’s discretion to determine whether the disorganized nature of the facts necessitated rejection of the summary judgment motion. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2000) 102 Cal.App.4th 308, 313-316 [concluding that the “Golden Rule” should be interpreted as permitting a trial court to ignore evidence not set forth in the separate statement of facts, and does not prohibit the trial court’s discretionary consideration of evidence not in the separate statement of facts].) The trial court declined to do so here, and we do not conclude that the trial court abused its discretion given that Stribling had sufficient notice of the important facts to object to those facts.
Finally, Stribling has raised many other contentions about why the trial court erred in granting summary, some of which are irrelevant because they do not address the affirmative defense of safety. To the extent that these contentions concern the affirmative defense of safety, we find them unpersuasive.
Therefore, Respondent is entitled to the complete defense of safety under section 12940, subdivision (a)(1). Thus, the trial court properly concluded that the City was not liable on Stribling’s First, Second, Third and Fifth Causes of Action under FEHA.
IV.
Retaliation Claim Under FEHA
In her Fourth Cause of Action, Stribling asserted that the City retaliated against her for filing the DFEH complaints and the complaint in this case. To establish a prima facie case of retaliation in violation of FEHA, a plaintiff must: (1) show that he or she engaged in a protected activity; (2) that the defendant subjected her to an adverse employment action; and (3) that a causal link exists between the protected activity and the adverse action. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) “‘Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.’” (Morgan v. Regents of Univ. of California (2000) 88 Cal.App.4th 52, 70.)
The trial court ruled that this claim was precluded by the affirmative defense of safety. We disagree in part. Safety is an affirmative defense to alleged retaliatory action. (§ 12940, subd. (h).) Thus, the City is not liable for retaliating against Stribling when it demoted her from Police Officer Recruit to CSO. Allegedly, however, in this instance the proffered evidence is that safety was not an issue at the time of the reapplication and its rejection that is the basis for the retaliation claim. The record, when reviewed in the light most favorable to Stribling, shows that Stribling did not suffer from vision problems when she reapplied for the position of Police Officer Recruit and applied for the Police Officer Reserve position. According to Stribling, her re-application was identical to the prior application, and Stribling was hired as a Police Officer Recruit previously. It appears that her re-application would have been stronger as she had already passed the Police Academy, had some prior field training, and was, at that time, not suffering from any physical injuries that might prevent her from performing the essential functions of a Police Officer Recruit. Thus, the City is not entitled to the affirmative defense of safety on the part of this cause of action relating to the denials of Stribling’s applications.
The City contends that it is entitled to summary judgment on this cause of action because Stribling’s evidence “is insufficient to establish a claim for retaliation. Appellant has not provided any evidence that the individuals who allegedly made these decisions knew of her FEHA complaints at the time of the adverse action.” The City contends that there is no prima facie case because “Appellant has enjoyed uninterrupted employment with Respondent. Appellant has not established any nexus between her claimed adverse treatment and the filing of her DFEH complaints. Under these facts, Appellant’s claims of retaliation do not create triable issues of fact sufficient to support trial on the merits.” We disagree.
The fact that Stribling has enjoyed “uninterrupted” employment with the City is insufficient to show that Stribling does not have a prima facie case given that she was subject to adverse employment actions, specifically the denials of her Police Officer Recruit and Police Officer Reserve applications. Moreover, the timing of the adverse employment actions is sufficient to create a triable issue of fact on the issue of retaliatory intent. “Specifically, when adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred.” (Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493, 507.) Here, the denial of the Police Officer Reserve application occurred around the same time that Sgt. Farrah became aware that he was a named defendant in the DFEH complaint. Sgt. Farrah was uncomfortable, frustrated and upset about this fact. Subsequently, he gave Stribling a negative evaluation and instigated an Internal Affairs investigation of her. Although Sgt. Farrah may not have been the individual that denied the Police Officer Reserve application, there is no evidence in the record to indicate that he was not part of an interconnected decision-making process that resulted in the denial of the application. (Cf. Morgan v. Regents of Univ. of California, supra, 88 Cal.App.4th at p. 74 [no liability for discrete hiring decisions made by unconnected individuals in different departments where decisionmakers had no knowledge that appellant filed grievances.]) Thus, on the record, there are triable issues of fact remaining on the issue of retaliatory intent with respect to that part of the retaliation claim related to the denial of Stribling’s reapplication for Police Officer Recruit and application for Police Officer Reserve. The trial court erred in concluding that the City is entitled to summary judgment on the Fourth Cause of Action under FEHA for retaliation.
DISPOSITION
The judgment is reversed and remanded on the Fourth Cause of action for FEHA retaliation. In all other respects the judgment is affirmed. Both parties to bear their own costs.
WE CONCUR: Harris, J., Gomes, J.