Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BC400247 Amy D. Hogue, Judge.
Portner Law Offices and Michael G. Portner, for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Claudia McGee Henry, Assistant City Attorney, and Brian I. Cheng, Deputy City Attorney, for Defendant and Respondent.
MANELLA, J.
Appellant Carmen Shannon, a 27-year employee of the Los Angeles Police Department (LAPD), brought suit under the Fair Employment and Housing Act (FEHA, Govt. Code, § 12900, et seq.) against her former employer based on her 2008 termination. Appellant contended that in 2005, she sought accommodation for a disability -- sarcoidosis -- that required her to stay home one to three days per month, but that when she took the approved leave, her supervisors criticized her, accused her of abusing her leave time and called her at home demanding she come in to work. In 2005 and 2006, she complained, in writing and orally, about her supervisors’ actions. After she complained, a number of punitive actions were allegedly taken, including a transfer from downtown to the Valley, which lengthened her commute and exacerbated a preexisting back condition. In addition, between 2005 and 2007, she was written up for various alleged violations of policies and procedures, given negative performance evaluations, and threatened with termination.
Undesignated statutory references are to the Government Code.
Respondent City of Los Angeles moved for summary judgment or summary adjudication of appellant’s claims for disability discrimination and retaliation, primarily contending it had a legitimate, job-related reason for discharging appellant. Respondent supported its motion with documents purportedly from appellant’s internal affairs file. Appellant objected to the documentary evidence submitted by respondent, but the trial court overruled or disregarded the objections and granted summary adjudication on these claims.
We conclude that respondent failed to comply with basic rules of evidence requiring the proponent of documentary evidence to lay a proper foundation to support its admissibility. Absent the inadmissible evidence, respondent’s motion was fatally deficient. We, therefore, reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint
Appellant was employed by the LAPD from 1981 until her termination on July 28, 2008. For the majority of that period, her position was that of a “[p]olice [s]ervice [r]epresentative” or dispatcher, which entailed answering calls from the public to the police hotline.
Appellant’s formal termination on July 28, 2008 followed an internal appeal of the decision to terminate, which occurred many months earlier.
In October 2008, appellant brought suit against respondent, asserting claims for disability discrimination and retaliation. The complaint alleged that during her employment, she suffered “derogatory remarks, denial of equal treatment..., denial of equal employment and promotional opportunities and termination of employment” due to her disability. Appellant further contended she was subjected to acts of “retaliation” for complaining of discrimination and requesting accommodation, including “derogatory remarks, abusive language, demeaning treatment, baseless disciplinary actions, denial of equal treatment as compared to other employees, [and] denial of equal employment and promotional opportunities.”
The complaint also alleged claims for failure to accommodate, failure to engage in the interactive process, discrimination based on national origin, and denial of family care leave. These claims were resolved by the summary adjudication and a subsequent settlement, and appellant does not seek to revive them.
Appellant did not specify the nature of her disability in the complaint.
In August 2008, prior to instituting the underlying action, appellant filed an administrative complaint with the Department of Fair Employment and Housing (DFEH). Appellant checked the boxes on the complaint form indicating she had been “fired, ” “harassed, ” “denied promotion, ” and “denied accommodation” because of her “physical disability.” She wrote that her employer failed to prevent “retaliation” and “discrimination, ” and that she had complained of harassment with regard to her “[Family Medical Leave Act] status and hostile work envi[ron]ment as well as reta[liati]on.” The administrative complaint alleged that these actions occurred on July 28, 2008 (the date of her termination) “and before.” The administrative complaint identified Captain Sharyn Buck, Lieutenant Diljeet Singh and Senior Police Service Representative Kim Antol as the responsible parties.
B. Motion for Summary Judgment
1. Respondent’s Motion
Respondent moved for summary judgment. Respondent did not attempt to establish that appellant lacked a qualifying disability or that she could not present a prima facie case of disability discrimination, focusing instead on establishing a legitimate non-discriminatory business reason for discharging appellant. Respondent further asserted that appellant could not establish a prima facie claim for retaliation because there was no evidence of a causal connection between her protected activities in 2005 and 2006 and her termination in 2008. Finally, respondent asserted that appellant’s disability discrimination claim was barred by the fact that approximately one year prior to the date of her termination, she signed a “Reasonable Accommodation Assessment Form” without discussing some of the accommodations she allegedly needed. In its memorandum, respondent contended that reference to acts of alleged misconduct occurring more than one year prior to filing the administrative complaint were barred by the FEHA statute of limitations and could not be used to support appellant’s claim.
To establish that appellant had been discharged for a legitimate non-discriminatory business reason, respondent put forth evidence that on September 2, 2007, appellant mishandled a call to the LAPD hotline by failing to ask the caller if she desired anonymity in violation of an October 2004 divisional order, leading the caller to subsequently complain to LAPD. Respondent presented no direct evidence of the reason for the termination, such as a declaration from the party or parties who made the decision to terminate. Instead, respondent relied on the notice of discharge itself -- which stated under “[c]ause”: “On or about September 2, 2007, you while on duty, failed to ask the caller... if she would like to remain anonymous” -- and on appellant’s deposition testimony that she was informed this was the reason for her termination and that she had no personal knowledge of any other reason.
The divisional order, signed by appellant in 2004 to signify her receipt of it, stated: “Effective immediately, upon receipt of a call from the public reporting criminal activity (including, but not limited to, narcotic and/or gang-related activity), the concerned operator shall ask the Person Reporting (PR) if they would like to remain anonymous.”
Respondent also provided documents which appeared to be from appellant’s internal affairs file and included reports on the investigation of the mishandled call and the results of the internal appeal. The documents expressed a different rationale for appellant’s termination. One, entitled “Commanding Officer’s Adjudication, ” stated that discharge was the recommendation for “a third offense of violating a departmental rule, ” and that appellant “has had three sustained complaints for [neglect of duty] since 2004 and this is the fourth such [sustained] complaint.” As will be discussed in greater detail, respondent provided no declaration from a custodian of records or other knowledgeable person to support the authenticity of these documents or any others it submitted in support of its motion. Nor did respondent provide testimony to establish that these documents were business records. Appellant objected to all the documents submitted by respondent as unauthenticated hearsay, and further objected to the lack of foundation provided to establish the business records exception. Appellant also objected, on hearsay grounds, to respondent’s attempt to rely for support on certain portions of her deposition in which she testified concerning what she had been told by various supervisors or co-workers.
Respondent acknowledged that appellant had complained about the actions and comments of Antol, Lieutenant Singh, and Captain Buck with regard to appellant’s use of leave related to her disability, but sought to establish that the decision to terminate appellant was not influenced by these persons. Again, respondent presented no direct evidence to support its contention. Instead, respondent provided evidence indicating that Antol and Lieutenant Singh last directly supervised appellant in mid-2006, and that Captain Buck left the Communications Division, where appellant was employed, on May 1, 2007 and was not its captain when appellant was terminated.
The evidence indicated appellant was transferred to the Valley in July 2006, outside the direct supervision of Lieutenant Singh. However, we note that his signature and/or name appears on a number of documents -- submitted by respondent and objected to by appellant -- that related to appellant’s employment and post-date her transfer.
Respondent also presented evidence that during appellant’s tenure with LAPD, she had received two “unsatisfactory performance ratings and comment cards” and “seven prior suspensions for neglect of duty or discourtesy, four of which were within the past five years.” To support this factual assertion, respondent provided two written comments from 2005 and two written evaluations of appellant from 2006 and 2007. Respondent also provided an excerpt from appellant’s deposition testimony in which she was asked whether she had been suspended on seven separate occasions during her employment for “neglect of duty” or “discourtesy” and appellant replied “[y]es.” Respondent did not specify what impact, if any, these performance evaluations, comments and prior suspensions had on the decision to terminate appellant.
One of the comment cards and both the evaluations were signed by Captain Buck or Lieutenant Singh. The comment cards and evaluations discussed alleged performance deficiencies. Appellant objected to these documents on lack of foundation and hearsay grounds.
Finally, in an attempt to establish that appellant’s disability had been reasonably accommodated, respondent presented an August 2007 document entitled “Reasonable Accommodation Assessment Form” (Assessment Form). Appellant signed the Assessment Form on August 7, 2007, signifying she had been “included in an interactive discussion regarding a reasonable accommodation and 1014 transfer process.” In it, appellant’s restrictions were described as preclusion from: prolonged standing, walking or sitting; repetitive squatting, climbing, crawling, kneeling, bending or stooping; and heavy lifting. The Assessment Form stated that appellant had requested accommodation for these limitations and that she could be accommodated. The Assessment Form identified a number of potential accommodations as “[n]ot [a]pplicable, ” including “[m]odified work schedule, ” “[f]lexible leave policy, ” “[m]odification of existing equipment or devices, ” and “[a]cquisition of assistive equipment or devices.” Respondent presented evidence -- an excerpt of testimony from appellant’s deposition -- that on the day she signed the document, appellant did not tell anyone she could not drive more than 30 miles in one direction or that she wanted or needed a specific type of chair.
The document was approved by Lieutenant Singh.
Appellant had also stated in her deposition that in 2006 or 2007, she had been informed by an ergonomics specialist that she needed a different chair and that she had provided that information to the wellness coordinator, as well as a letter from her doctor stating that she was prohibited from prolonged sitting and driving more than 30 miles in one direction. The letter, dated July 2006, was attached to appellant’s opposition.
2. Appellant’s Opposition
Appellant’s opposition was supported primarily by excerpts and exhibits from her own deposition, taken by counsel for respondent. She presented evidence that she suffered from a number of physical ailments, including sarcoidosis (an auto-immune disease), torn meniscus tissue in both knees, a broken tailbone, and intermittent back spasms. In 2004 or 2005, she informed respondent that she had sarcoidosis and in May 2005, filed with the wellness center a certification from a physician stating that the condition “may result in [her] needing to miss work periodically, ” defined as one to three days per month. She was informed by Annie Auzenne, a manager, and Dorine Thomas, the wellness coordinator, that if she was ever not feeling well, she should go home, and that a notation had been placed in her file precluding questions about her sick time usage. In August 2005, however, Antol told appellant that her use of leave was “pattern behavior” and that appellant was abusing leave. In addition, on multiple occasions, Lieutenant Singh called appellant at home when she was out on leave and demanded that she come in.
She testified that the knee and tailbone injuries resulted from a 2002 fall at work, but did not state that they led to any immediate need for accommodation.
In August 2005, appellant filed a written internal complaint against Antol and on various occasions in 2005 and 2006, orally complained to Auzenne and others about Antol’s and Lieutenant Singh’s comments. Following her complaints, appellant was transferred from downtown to the Valley by Captain Buck where she was placed in a training program with new hires, refused permission to participate in a work-related women’s conference, refused “early outs, ” refused requested vacation days, and asked to provide a doctor’s note for her absences. In addition, appellant overheard Antol tell the Watch Commander that she “spent over 40 hours trying to pull things together to make a complaint against [appellant]” and overheard “supervisors” stating that her transfer to the Valley was in punishment for her complaints of retaliation and harassment. In September 2005, Lieutenant Singh called appellant into his office and told her that “her supervisors didn’t like her, her peers didn’t like her” and that she had “burned [her] bridges behind [her].” He further stated that he was going to recommend that she be terminated or demoted. In 2006, Captain Buck told appellant she “d[id]n’t appreciate [appellant’s] complaint, ” stated she was going to “ruin [appellant’s] career” and “get [her] out of here.” She threatened to write up a pending adjudication of a complaint against appellant so that there would be no alternative but to fire her “if her name came up in anything else.”
Appellant’s August 2005 complaint stated that she had been “[o]nce again” approached by Antol regarding sick time and that Antol stated appellant was “show[ing] a pattern” and that “‘if sick time use is honest[, ] you have nothing to worry about, ’” which “implie[d] [appellant was] abusing time and being less than forthright.” Antol further allegedly said she was not aware of appellant’s health status, which appellant found “insulting” because she had personally told Antol about it. Appellant contended she felt “harassed” due to “hav[ing] to continually divulge my health status to curtail lectures on sick time abuse.”
Appellant disputed that the allegedly mishandled call was the sole reason for her discharge. She submitted a response to a request for admission asking respondent to admit that “the alleged violation of [the October 2004 Divisional Order] was not the sole reason for the termination of [appellant].” Respondent had stated: “[Appellant’s] violation of [the October 2004 divisional order] was the triggering event that [led] to a personnel complaint against her, however, it was not the sole reason for termination.” Appellant did not dispute that she had received the October 2004 divisional order directing that callers be offered anonymity. However, she disputed that it was an operational requirement, pointing to her deposition testimony that she had been told the divisional order was tentative and there would be further discussions before its implementation. She also disputed that the call had been mishandled, explaining that because the caller had said there were two men with guns climbing over the fence into her back yard, it did not appear to be the type of call where anonymity was an issue. In addition, the supervisor who first discussed the call with appellant had said it was a “big whoop about nothing.” With respect to the unsatisfactory performance evaluations, appellant testified she had been told by Yul Johnson, who had prepared the 2006 evaluation, that Captain Buck had “kicked [it] back to him three times” to re-write because it “made [appellant] look[] too good.”
Appellant also contended that the court could not find true as a matter of undisputed fact that the caller had complained about the lack of anonymity, pointing out that the sole evidence to support that factual proposition came from a statement in appellant’s deposition testimony, which was based on hearsay.
With respect to the “Reasonable Accommodation Assessment Form, ” appellant testified that in August 2007, she received it through the interoffice mail already filled out. She was told to sign it to signify that she had received it and was further told that her signature did not mean she agreed with it. She never had a meeting with anyone to discuss its contents, although she had told several people, including the wellness coordinator, that driving the extra distance to the Valley was causing her back pain.
C. Trial Court’s Order
The trial court found that because respondent presented evidence that appellant had “admitted in her deposition that [respondent’s] stated reason for her... termination was [the mishandled call], ” respondent had adequately “advance[d] a legitimate nondiscriminatory reason for termination” in its moving papers. According to the court, this shifted to appellant “the burden of producing evidence that the reason was pretextual and that there was an improper discriminatory motive in violation of FEHA.” To meet this burden, appellant was required to “identify actionable conduct by [respondent] within the applicable one year limitations period under [section 12960], (in this case conduct on or after July 29, 2007).” The court concluded appellant had not met her burden because she had not presented evidence that “[Captain Buck] (or the other supervisors about whom [appellant] complained in 2005) had any personal involvement in [respondent’s] 2008 termination decision, ” that “any employee who was involved in the 2008 decision to terminate [appellant] harbored any discriminatory animus or had any unlawful reason to retaliate against [appellant], ” or that “those who made the decision to terminate knew or had any reason to know that Buck’s negative evaluations were ‘tainted’ with improper motivations.”
The court acknowledged that appellant had offered evidence supporting that respondent created a “hostile environment” and had “improper motivation, ” including Antol’s statements questioning her absences, appellant’s 2005 and 2006 oral and written complaints, and Captain Buck’s comments about ruining appellant’s career and getting her out of LAPD. The court noted, however, that these incidents occurred more than a year prior to the filing of the FEHA complaint. Stating that “complaints about the pre-limitations conduct are barred by the statute of limitations, ” the court ruled such conduct could not raise a triable issue of fact regarding the reasons for appellant’s termination. The court further acknowledged, apparently based on the documents from appellant’s internal affairs file, that the evidence indicated “the City’s progressive discipline policy requires three rule violations to terminate [appellant’s] employment” and that “[Captain Buck] was responsible for reporting one or more of [appellant’s] historical violations.” However, the court concluded this evidence did not raise a triable issue of fact concerning improper motivation for the termination because appellant failed to offer admissible evidence that “the decision to terminate rested on [Captain Buck’s] finding of substandard performance as opposed to other supervisors’ findings.”
Based on these findings, the court granted summary adjudication on the causes of action for disability discrimination, discrimination based on national origin, denial of family care leave, and retaliation. It denied summary adjudication on the claims for failure to accommodate and failure to engage in the interactive process. The parties settled the two remaining claims. This appeal followed. On appeal, appellant seeks to revive only the claims for (1) disability discrimination resulting in termination of employment and (2) retaliation.
The court concluded there were issues of fact remaining on failure to engage in an interactive process and failure to accommodate because (1) appellant had submitted evidence supporting that she “raised her need for an ergonomic chair and complained about the discomfort of commuting to work for longer than an hour, ” and (2) “[a]lthough [appellant] admits signing a 2007 form acknowledging that she had engaged in an interactive process, she now denies that there was any good faith interaction.”
DISCUSSION
A. Appellant’s Disability Discrimination Claim
The trial court granted summary adjudication of the disability discrimination claim because it found that respondent had adequately advanced a legitimate nondiscriminatory reason for appellant’s termination in its moving papers, thereby shifting to appellant the burden of producing evidence that the reason was pretextual and that there was an improper discriminatory motive, such as evidence that the persons involved in the decision to terminate harbored discriminatory or retaliatory animus, or that Captain Buck or other supervisors about whom appellant complained were personally involved in the termination decision. Appellant contends that if only admissible evidence is considered, respondent failed to meet its burden as the moving party to establish a legitimate, job-related reason for terminating her and, accordingly, the burden did not shift to appellant to establish pretext or discriminatory motivation. We agree.
1. Elements of FEHA Disability Claim
“FEHA makes it an unlawful employment practice to discharge a person from employment or discriminate against the person in the terms, conditions, or privileges of employment, because of physical or mental disability or medical condition.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1002.) To establish a prima facie case of intentional discrimination on grounds of physical disability, the employee must “present evidence showing he [or she] suffered a physical disability within the meaning of [FEHA], he [or she] was otherwise qualified for his [or her] job, and he [or she] suffered an adverse employment action because of the physical disability.” (Id. at p. 1006.) A disability discrimination claim can arise where the employee’s termination was the result of his or her proper use of disability-related leave. (Jadwin v. County of Kern (E.D. Cal. 2009) 610 F.Supp.2d 1129, 1183; Diaz v. Federal Express Corp. (C.D. Cal. 2005) 373 F.Supp.2d 1034, 1064-1065.)
“A prerequisite to bringing a civil action under FEHA is the filing of an administrative complaint with DFEH no later than one year after the violation occurred.” (Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 720.) The administrative complaint must set forth the “particulars” of the alleged discrimination. (§ 12960, subd. (b).)
2. Burden of Proof on Summary Judgment
“Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law.” (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 888.) “A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action.” (Id. at p. 889) The defendant may negate an element of a cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, evidence to support it. (Ibid.) Although the plaintiff in an employment discrimination claim bears the burden of proving the elements of a prima facie case at trial, “in the summary judgment context the moving party bears the burden of demonstrating there are no material triable issues of fact and that it is entitled to judgment as a matter of law, ” including the burden of establishing that the plaintiff cannot establish the elements of his or her prima facie case. (Nadaf-Rahrov. v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 962-963.) Alternatively, the employer may establish entitlement to summary judgment by showing that the adverse action was taken for a legitimate, nondiscriminatory reason. (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1004.)
“Once the defendant has made [the appropriate] showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action.” (Gaggero v. Yura, supra, 108 Cal.App.4th at p. 889.) “[A] plaintiff resisting a motion for summary judgment bears no burden to establish any element of his or her case unless and until the defendant presents evidence either affirmatively negating that element (proving its absence in fact), or affirmatively showing that the plaintiff does not possess and cannot acquire evidence to prove its existence.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107, italics omitted.)
To warrant summary judgment or summary adjudication based on the legitimacy of its adverse employment actions, an employer is required to provide “competent, admissible evidence that it had legitimate, nondiscriminatory reasons for its actions.” (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1194.) Objections to the proffered evidence may be made prior to or at the hearing. (Code Civ. Proc., § 437c, subds. (b)(5) & (d); Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532.) Timely made evidentiary objections are preserved on appeal, even when the trial court fails to expressly rule on them. (Reid v. Google, Inc., supra, at p. 532.)
On appeal, “we must assume the role of the trial court and reassess the merits of the motion. [Citation.] In doing so, we will consider only the facts properly before the trial court at the time it ruled on the motion.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) The parties’ statements of fact and the supporting evidence provided by the parties “constitutes the entire factual universe we review in connection with a summary judgment.” (Gaggero v. Yura, supra, 108 Cal.App.4th at p. 890.) “[I]f a party’s position depends on patently inadmissible evidence admitted over a proper objection, a reviewing court would be empowered, and indeed obliged to, acknowledge the error and disregard the evidence.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711.)
A party seeking to rely on business records to support its motion must meet the requirements of section 1271 of the Evidence Code, which “permits admission of business records to establish the truth of the matters contained therein if: ‘(a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.’” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321-322.)
3. Inadequacy of Evidence to Support Legitimate, Job-Related Basis for Appellant’s Termination
For purposes of its motion, respondent did not contest that appellant could present the essential elements of a prima facie case: that she was a person with a disability, that she had been performing the essential functions of a dispatcher or police service representative for several decades, that she could continue to perform the essential functions of the job with reasonable accommodation and that she suffered an adverse employment action -- termination. Respondent based its motion for summary adjudication of the disability discrimination claim on the alleged legitimacy of its decision to terminate appellant, which respondent initially contended was due to mishandling the September 2007 call.
The evidence presented did not support that termination of appellant’s lengthy employment with LAPD was the result of a single mishandled call. First, no one with personal knowledge attested to that fact. Respondent submitted appellant’s deposition testimony in which she stated she was told the mishandled call was the reason and received a notice of discharge stating that was the reason. Such statements were hearsay and appellant properly objected to them on that ground. Second, an issue of fact was created by respondent’s admission that although appellant’s violation of the October 2004 divisional order was the triggering event that led to a personnel complaint against her, “it was not the sole reason for termination.” Respondent did not seek to withdraw this admission, and has not addressed it in its brief.
Although respondent cited appellant’s testimony that she had no personal knowledge of any other reason, respondent did not contend that this established appellant did not possess, and could not reasonably obtain, evidence to support an element of her claim. Nor could appellant’s deposition testimony have established this defense. As explained in Villa v. McFerren (1995) 35 Cal.App.4th 733, 736, 748, where there is no reason to believe that the plaintiff would or could have personal knowledge of a fact at issue, presentation of the plaintiff’s deposition testimony demonstrating lack of such knowledge does not support a defense motion for summary judgment or shift the burden to the plaintiff. (See also Mamou v. Trendwest Resorts, Inc., supra, at p. 714 [employer’s assertion that employee had “‘no evidence whatsoever that his national origin played any role in the decision to terminate his employment, ’” even if true, did not support summary judgment because prima facie case does not require such evidence].)
Respondent alternatively contends that the evidence conclusively established that the mishandled 2007 call -- in combination with prior unsatisfactory ratings and comments and multiple prior suspensions -- led to the termination. The trial court found that “[respondent’s] progressive discipline policy” permitted it to terminate appellant’s employment after “three rule violations.” However, the only evidence to support the existence of this policy or that appellant’s employment was terminated as the result of a series of rule violations were the documents purporting to be from appellant’s internal affairs file. As noted, appellant objected to their admission.
Respondent failed to meet the basic minimal requirements to support admission of the internal affairs documents. (See Jazayeri v. Mao, supra, 174 Cal.App.4th at pp. 321-322; People v. Dean (2009) 174 Cal.App.4th 186, 197, fn. 5 [“A proper foundation for [business] records includes evidence that the writing was made in the regular course of the business. It must also appear that the writing was made at or near the time of the act, condition, or event and that the method and time of preparation were such as to indicate its trustworthiness. A foundation of this nature ensures that the entries are made by personal knowledge, not on secondhand information days following the act, condition or event.”].) The only attempt respondent made to lay a foundation for these documents was to provide an excerpt from appellant’s deposition in which she was asked whether she received these documents (described as “the investigative materials”). She responded, “[m]ost of [them].” Even as proof of authenticity, this was deficient. (See Evid. Code, § 1400, et seq.) Moreover, assuming appellant’s testimony was sufficient to establish authenticity, respondent could not establish through appellant’s testimony the necessary foundational facts to support their inclusion as business records. (See Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697, 1706 [reports failed to qualify for admission as business records where custodian testified to their authenticity, but offered no evidence as to “what [they] were, how they were prepared, or what sources of information they were based on”]; People v. Khaled (2010) 186 Cal.App.4th Supp. 1, 8 [“In order to establish the proper foundation for the admission of a business record, an appropriate witness must be called to lay that foundation.”].)
In short, the documents purporting to be from appellant’s internal affairs file were not properly before the trial court and thus could not be considered. Nor may we consider them now. Absent these documents, there is no admissible evidence that appellant had previously been disciplined for rules violations, that LAPD policy requires or permits termination after three rules violations, or that appellant’s termination was the result of the application of that policy. The trial court’s conclusion that the legitimacy of the termination decision had been established and that it fell to appellant to produce evidence of pretext was thus without evidentiary support.
Nothing in our holding suggests the evidence could not have been properly admitted had respondent complied with the rules of evidence. Nor does our discussion suggest the court could not have reached the conclusion it did, had the evidence been properly before it.
B. Appellant’s Retaliation Claim
Respondent contends appellant is unable to establish a prima facie case of retaliation. Appellant asserts she raised an issue of fact concerning her retaliation claim by presenting evidence of disputed facts concerning all the necessary elements. Again, we agree.
1. Elements of FEHA Retaliation Claim
“FEHA makes it unlawful for an employer ‘to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1003, quoting § 12940, subd. (h).) To establish a prima facie case of retaliation, the employee must show “‘(1) he or she engaged in a “protected activity, ” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.’” (Scotch v. Art Institute of California, supra, at p. 1020, quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A causal link may be established by showing that the adverse employment action occurred shortly after the employee filed a charge of discriminatory conduct. (See, e.g., Scotch v. Art Institute of California, at pp. 998, 1001, 1020 [finding sufficient evidence of causation where employee suffering from AIDS suffered adverse employment action (change in status from full to part time) weeks after stating in a letter and in meetings with supervisors he believed he was being treated differently because of his condition]; Strother v. S. Cal. Permanente Medical Group (9th Cir. 1996) 79 F.3d 859, 869-870 [employee suffered adverse employment action one day after filing discrimination charge].)
2. Evidence Supporting Prima Facie Case of Retaliation
For purposes of its motion, respondent did not contest that appellant would be able to present evidence that she engaged in protected activity by filing a complaint against Antol and by complaining orally about Antol’s and Lieutenant Singh’s expressed hostility toward appellant’s use of disability leave. Respondent contended that appellant could not establish a prima facie case of retaliation because she could not demonstrate the requisite causal connection between her protected activity and the termination, which took place several years after the protected activity. We disagree.
Temporal proximity is a proper consideration in determining whether the necessary causal connection between the protected act and the adverse employment action occurred. (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at pp. 1020-1021.) But appellant presented evidence that after she suffered a disability, took disability leave, and complained about the hostile reaction of her supervisors, a number of actions were taken immediately, including transfer to a less desirable location, filing internal complaints based on her handling of calls and preparing unduly negative comments and performance evaluations. She presented evidence that these actions were influenced by her complaints, including Antol’s statement that she spent 40 hours “pull[ing] things together” to support a complaint against appellant, Lieutenant Singh’s remark that appellant had “burned [her] bridges” and that her supervisors “didn’t like her, ” Captain Buck’s 2006 statements that she did not appreciate appellant’s complaint and intended to ruin her career, and Yul Johnson’s assertion that he was forced by Captain Buck to re-write appellant’s 2006 evaluation in a more negative light. She essentially contends her termination was the culmination of a series of events in which her superiors created a false trail of discipline-worthy conduct due to their hostility toward her request for reasonable accommodation, her use of leave, and her complaints about their hostility and harassment. This was sufficient to raise a triable issue of fact.
Respondent states that appellant was fired while Captain Anita Ortega was the head of the Communications Division and asserts that appellant has no reason to believe Captain Ortega ever had improper motives or any animosity toward appellant. Assuming Captain Ortega made the decision to terminate -- a point on which respondent presented no admissible evidence -- respondent did not establish that the decision was uninfluenced by Antol, Lieutenant Singh or Captain Buck. To the contrary, respondent emphasized that the termination followed unsatisfactory performance ratings and comment cards issued between 2005 and 2007 and seven suspensions, “four of which were within the last five years.” In short, respondent seeks to support appellant’s termination on the comments, ratings and disciplinary actions of the supervisors about whom appellant complained and/or who allegedly threatened to get rid of her after she filed a complaint. That Captain Ortega or whoever made the ultimate decision might have been ignorant about the motivation behind negative reports from others within the organization did not “shield the employer from liability if other substantial contributors to the decision bore the requisite animus.” (Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 110; accord, Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421.)
Had multiple negative performance evaluations and disciplinary suspensions preceded appellant’s 2005 request for accommodation and complaints of hostility and harassment, they could have supported the decision to terminate. However, the only evaluations submitted were from the years 2006 and 2007, when appellant was under the supervision of Lieutenant Singh and Captain Buck; respondent presented no admissible evidence establishing precisely when the suspensions occurred.
As explained by the court in Reeves: “A supervisor annoyed by a worker’s complaints about sexual harassment might decide to get rid of that worker by, for instance, fabricating a case of misconduct, or exaggerating a minor instance of misconduct into one that will lead to dismissal. Another manager, accepting the fabricated case at face value, may decide, entirely without animus, to discharge the plaintiff. It would be absurd to say that the plaintiff in such a case could not prove a causal connection between discriminatory animus and his discharge. The situation is equivalent to one in which the supervisor simply fires the worker in retaliation for protected conduct. The supervisor’s utilization of a complex management structure to achieve the same result cannot have the effect of insulating the employer from a liability that would otherwise be imposed.” (Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at pp. 108-109.)
C. Statute of Limitations
Respondent contends that it established as a matter of uncontested fact that appellant’s complaint was untimely. Respondent does not, however, mean untimely in the traditional sense. Appellant’s DFEH complaint was filed one month after her termination and her civil complaint followed a few months later, well within the one-year limitations period for FEHA actions. Rather, respondent contends that incidents occurring more than one year prior to filing the DFEH complaint cannot be considered by the trier of fact as evidence of the employer’s motivation for an adverse action, even if that adverse action occurred within the year preceding the complaint.
The Supreme Court addressed this argument in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, where the disabled employee’s claim was based on a series of actions over a five-year period allegedly creating a hostile work environment and evidencing disability discrimination. (Id. at p. 811.) The Supreme Court concluded that evidence of misconduct occurring outside the limitations period may properly be presented for evidentiary purposes and for purposes of proving damages if the actions fall within the scope of a continuing violation. A violation is continuing as long as the employer’s improper actions are “(1) sufficiently similar in kind -- recognizing... that similar kinds of unlawful employer conduct, ... may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.]” (Id. at p. 823.) Thus, the court held: “[W]hen an employer engages in a continuing course of unlawful conduct under the FEHA by refusing reasonable accommodation of a disabled employee or engaging in disability harassment, and this course of conduct does not constitute a constructive discharge, the statue of limitations begins to run... either when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Ibid., italics omitted.) Appellant presented evidence of a course of conduct that began in mid-2005 and continued throughout 2006 and 2007, when she allegedly mishandled a call and the initial decision to terminate her was made. Respondent did not contend or seek to establish that the course of conduct on which appellant based her disability discrimination claim ceased or culminated because she received clear notice from LAPD prior to her termination that waiting further to be accommodated would be futile. Accordingly, contrary to the trial court’s ruling, all the incidents reported by appellant were properly considered in determining whether appellant’s claims were supported.
In Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at pp. 1057-1059, the court held that the same rule applies in cases of retaliation.
D. Reasonable Accommodation Assessment Form
Respondent contends that appellant’s execution of the “Reasonable Accommodation Assessment Form” somehow undermines her claims. Respondent provided no evidence concerning the circumstances under which the Assessment Form was prepared and signed. Appellant presented evidence that she received the Assessment Form in the interoffice mail in 2007, during the period she was attempting to obtain an ergonomic chair to support her back and a transfer to downtown so she would not have to drive more than 30 minutes or 30 miles to work. Nothing in the record suggests the Assessment Form had anything to do with appellant’s claim for disability discrimination based on her use of leave. On the record provided, neither we nor the trial court could find the Assessment Form was intended to resolve her discrimination or retaliation claims.
DISPOSITION
The judgment is reversed. The matter is remanded for further proceedings. Appellant is awarded costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.