JOSEPH AUCIELLO v. LOS ANGELES COMMUNITY COLLEGE DISTRICT

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Court of Appeal, Second District, California.

JOSEPH AUCIELLO, Plaintiff and Appellant, v. LOS ANGELES COMMUNITY COLLEGE DISTRICT, Defendant and Respondent.

B214467

Decided: February 18, 2010

Law Office of Kathleen A. Brewer and Kathleen A. Brewer for Plaintiff and Appellant. Kohrs & Fiske, Conrad Kohrs and Kenneth P. Scholtz for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Joseph Auciello (Auciello) appeals from a judgment entered following a jury trial on his claim of retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12940, subdivision (h)) 1 against his employer, Los Angeles Community College District (LACCD).   The jury returned a verdict in favor of LACCD after finding that Auciello had not suffered an adverse employment action.

CONTENTIONS

Auciello contends that (1) the trial court erred in finding the continuing violation doctrine inapplicable to this case;  (2) the court erred in precluding Auciello from presenting the “totality of circumstances” in which his retaliation case arose;  (3) the court erred in providing jury instructions that pre-ordained a defense verdict;  and (4) the court erred in excluding key evidence of protected activity.   Auciello argues that all errors were prejudicial and require reversal.

FACTUAL BACKGROUND2

Auciello is a tenured professor at Los Angeles Trade Technical College (LATTC) and is employed by LACCD.   Auciello has worked at LATTC since 1977 and has been a professor in the field of computer information systems since 1981.

Discriminatory Acts of Daniel Castro (2002-2004)

Daniel Castro (Castro) became president of LATTC in 2001.   In 2002, Auciello learned that Castro's administration was engaging in what Auciello considered racially discriminatory employment practices by favoring Latino employees and applicants on the basis of race.   Those practices included:  hiring applicants because of their race;  creating a financial strategies course whose promotional materials were written in Spanish only;  publicly embracing a racially discriminatory philosophy;  and referring to non-Mexican-Americans, including Auciello, with the pejorative, “gabacho.” 3  Auciello learned that Castro was “out to get him.” 4  In approximately May 2002, Castro denied acceptance of Auciello's grant applications on the ground that Auciello was not “Latin enough,” although Hispanic professors were permitted to submit grant applications.   In addition, Auciello alleged that he was informed by several colleagues that Castro had warned people to stay away from Auciello and avoid working with him.

Beginning in 2004, Auciello made a series of internal complaints to LACCD and LATTC personnel about the alleged wrongful conduct of Castro and his administration.

Auciello's First DFEH Charge (March 2004)

On March 22, 2004, Auciello filed a charge of discrimination with the California Department of Fair Employment and Housing (DFEH).   The charge alleged that “between 5/02 and 3/04,” Auciello was harassed, denied employment, denied promotion, retaliated against and denied other employment opportunities by Castro on the basis of his sex, age, race/color, national origin, and as retaliation for his internal complaints regarding Castro's activities.

The second page of the charge detailed certain events which allegedly occurred between May 2002 and March 2004.   Auciello specifically set forth the details of the denial of one of his grant applications in May 2002.   In addition, he complained that in February 2003 he was disciplined for mounting speakers on his computer and was chastised for opposing that discipline.   In September 2003, the charge alleges, Castro directed Eduardo Ramos to closely monitor and scrutinize Auciello's activities.   Ramos's actions threatened and intimidated Auciello and disrupted his work.   Auciello stated that his physical health had deteriorated because of the close monitoring and scrutiny.   Finally, Auciello alleged that in March 2004, he was told that Castro was out to get him, and that he was targeted and denied opportunities because he was not “Latin enough.”

Auciello received a right-to-sue letter on April 28, 2004.

The Fact Finding Committee (Spring 2004)

In the spring of 2004, Auciello, along with other professors and student leaders, formed a fact finding committee for the purpose of investigating Castro's racial policies and other misconduct.5  In connection with his work on the committee, Auciello authored and distributed the no confidence document, in which he voiced various concerns including his opposition to racially discriminatory practices.

Retaliation (Spring 2004-Summer 2005)

Shortly after forming the investigative committee;  publishing the no confidence document;  and filing the DFEH charge, Auciello experienced retaliation from the administration.   The adverse conduct included having his classes cancelled repeatedly beginning with the summer 2004 session.   Auciello testified in deposition that two of his classes were cancelled, but were then reinstated after the administration realized that a class limit restriction had improperly been placed on the classes.   In winter 2005, the same two classes were cancelled because paperwork had been misplaced.   The error was fixed and the classes reinstated;  however, Auciello testified that it put “huge pressure” on him to have to come up with the required number of students in a short time.   In spring 2005, the same classes were cancelled due to an error on the part of the chair of his department.   Once again, the classes were reinstated and went forward that semester.   In the fall of 2005, Auciello was invited to a nearby high school to discuss offering courses there.   However, Auciello lost this opportunity because Castro denied approval.   Castro pressured students and faculty to disassociate themselves from him.

In spring 2005, Auciello contacted LACCD Chancellor Peter Landsberger (Landsberger) to request a meeting to discuss Castro's alleged inappropriate activity.   Landsberger responded in a letter to Auciello dated May 3, 2005, indicating that Landsberger was not available to meet on the date requested by Auciello.   Landsberger requested that Auciello provide “written evidence to support any allegations of misconduct.”   If such evidence warranted discussion, Landsberger indicated that a meeting would be scheduled.   Auciello did not respond to the letter because he felt it was unfair.

Auciello's Second DFEH Charge (February 2005)

On February 22, 2005, Auciello filed a second charge with the DFEH, claiming unlawful retaliation since May 2004.   The charge alleged that Auciello had been harassed, denied promotion, and denied other employment opportunities on the basis of his age, race, national origin, and because of the fact that he had protested these actions.   The perpetrators of these acts were listed as Castro and Raul Cardozo.6  Auciello's right-to-sue letter was issued on March 29, 2005.

Castro's Transfer (Summer 2005)

In the summer of 2005, Castro left LATTC to become president of another college.

Continued Retaliation (2006)

Marci Drummond (Drummond) had been hired by Castro to the position of vice president of academic affairs.   In June 2006, the new president of LATTC, Tom Harris, asked Auciello to respond to a proposal from the Department of Homeland Security to create a “quick responder training program.”   Drummond canceled the meeting at which Auciello was to present a grant and a web page in response to the proposal.   An email from Drummond, dated June 19, 2006, canceled the meeting “until further notice.”   The meeting was never rescheduled.

On July 1, 2006, Richard Sherer (Sherer) became chair of Auciello's department.   Sherer and Auciello had no personal relationship prior to the time that Sherer became chair of Auciello's department.   Sherer informed more than one student that his first task as chair of the department was to get rid of Auciello.   Members of the administration told students to “distance [themselves]” from Auciello because he was a “troublemaker.”   Auciello's second level supervisor, Dean Azarmsa, (Azarmsa) labeled Auciello's work “crap.”   Sherer and Azarmsa had been working at LATTC during the time that Castro was president.

In the summer of 2006, Sherer made a recommendation that Auciello be transferred out of the department and given some other assignment within the college.   Sherer testified that he did this because Auciello was “obstinate,” repeatedly refusing to follow district policies and practices.   During a hostile discussion between Sherer and Auciello regarding Auciello's “unauthorized use of the classroom,” Sherer referred to Auciello as an “asshole” to his face.7  In the summer of 2006, Sherer also denied Auciello the opportunity to add summer classes to his teaching schedule and rejected his proposal for an internet café.

On July 24, 2006, Sherer sent Auciello an email stating that Auciello was not authorized to use labs or classrooms without going through the chain of command starting with Sherer.   On July 27, 2006, Sherer sent a second email stating that Auciello was in direct violation of the email sent on July 24, 2006, and that Auciello could expect to receive a “notice of unsatisfactory performance.”   Sherer then drafted a notice of unsatisfactory performance regarding Auciello.   The document, which covered the time period from March 15, 2006 through August 11, 2006, documented Auciello's alleged “[p]ersistent violation of or refusal to obey state laws and rules of the LACCD governing board,” and “[u]nprofessional conduct.”   Specifically, the document detailed Auciello's actions in the following general categories:  (1) violating students' privacy on his course website;  (2) unauthorized usage of classroom/lab facilities;  (3) failure to obtain authorization prior to visiting local high schools and requesting classes.

In July and August 2006, Auciello had several meetings with Sherer which were also attended by students named Ethan Burrall and Emily Schoales.   The meetings concerned the use of classrooms and computers by individuals who were not enrolled students, under Auciello's supervision.   In an email dated August 22, 2006, Emily Schoales sent Sherer an email describing her impression that Auciello “bullied” another instructor into allowing Auciello's students to use that instructor's classroom, and her concerns that “if he continues to indiscriminately allow people to use the college facilities, that it will result in the loss of these facilities for legitimate students.”

On August 31, 2006, Sherer sent Auciello an email informing him that none of his fall 2006 class sections had the required 10 or more students enrolled and thus all classes were cancelled.   Auciello was given the opportunity to bump an adjunct professor and take over an evening class.   Sherer testified that he canceled three of Auciello's four classes scheduled for fall of 2006 because those classes did not meet the minimum number of students required to hold classes.   Cancellation of classes due to low enrollment does not affect a professor's salary.

In early September 2006, Azarmsa called Auciello to a meeting and served him with the Notice of Unsatisfactory Performance.   According to Drummond, such a notice is part of progressive discipline and an attempt to rectify behavior.   It does not affect a professor's current status unless there are more problems.   No additional disciplinary action was taken against Auciello, and no financial consequences resulted from the notice.

Auciello had never received a notice of unsatisfactory performance before.   At the September 2006 meeting Azarmsa informed Auciello that he “was a screw-up” and “did a lot of things incorrectly,” such as “keeping a class open beyond hours for students, starting a computer club when there wasn't one, going to a high school, recruiting students and embarrassing the college.”

Following the meeting, Auciello was “very upset.”   He went to his doctor who prescribed Auciello a medical leave of several weeks for high blood pressure.   Two weeks later, Azarmsa called Auciello to a meeting to discuss Auciello's assignment to “night school and some non-teaching related duties.”   Auciello viewed this reassignment as punitive.   On his way to the meeting, Auciello felt dizzy and nervous.   He pulled over and called his doctor who instructed him to get himself to a cardiology center.   The incident resulted in a medical leave which lasted for the entire 2006-2007 academic year.   Auciello did not return to his job until August 2007.

Auciello's Third DFEH Charge (October 2006)

Auciello filed his final DFEH charge on October 26, 2006.   Auciello received his right-to-sue notice on October 27, 2006.

Auciello's Return to Work (August 2007)

When Auciello returned to work in August 2007, Sherer was no longer chair of the department and Azarmsa had left LATTC.   Auciello resumed his regular teaching schedule.

PROCEDURAL HISTORY

Auciello filed this lawsuit on May 23, 2007.   The second amended complaint (SAC), filed February 19, 2008, set forth three causes of action:  (1) retaliation under section 12940;  (2) retaliation under Labor Code section 1102.5;  and (3) intentional infliction of emotional distress.   The SAC named Castro, Sherer, and LACCD;  however, the individuals were later dismissed.   The matter was set for trial on the FEHA retaliation claim only.

Relevant Pretrial Proceedings

On September 10, 2008, LACCD filed its motion in limine No. 2 to exclude evidence of the DFEH complaints filed on March 22, 2004, and February 16, 2005, on the ground that they were time-barred.   The motion requested that appellant be precluded from offering testimony with regard to the allegations contained in paragraphs 12 through 21 of the SAC. The trial court heard argument on motion in limine No. 2 on October 22, 2008.

Auciello argued to the trial court that the “continuing violation” doctrine provided an exception to exclusion of evidence that fell outside the statute of limitations.   The trial court stated that three factors, “as set forth in Richards [v.   CH2M Hill, Inc. (2001) 26 Cal.4th 798 (Richards ) ] and others,” would be used in evaluating the applicability of the continuing violation doctrine.   The court described the three factors as:  (1) whether “the alleged acts involve the same type of discrimination tending to connect them in a continuing violation”;  (2) “frequency,” i.e., whether “the alleged acts [are] recurring biweekly, et cetera or more in the nature of an isolated work assignment or employment”;  and (3) “the degree of permanence,” which the court explained with the following query:

“Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?”

The court found that this third factor, which focuses on “when the employee was put on notice that his or her rights had been violated,” worked against Auciello.   The court stated:  “[T]he complaints that were the subject of the prior complaint to the DFEH all had a completeness within themselves.   In other words, the events occurred.   He filed the complaint with the DFEH. He got a letter or permission to sue and he didn't sue.”   Later, the court explained, “he obviously knew he had a right in '04 and '05 because the improper action had occurred.   It was permanent․  [H]e was affected and he was damaged in '04 and '05.”

The court thus ruled that the continuing violation doctrine was inapplicable.   However, at the conclusion of oral argument, the court granted in part and denied in part LACCD's motion.   The court held that “prior activities as alleged in the '04, '05 complaints ․ are not relevant to any damage claim to the plaintiff.”   However, the court held that such evidence, if otherwise competent, would be admissible as background.

On October 1, 2008, LACCD filed its motion in limine No. 3 to exclude the no confidence document on the grounds that it is an unsigned, undated hearsay document which contains irrelevant and inadmissible opinions of deceptive or discriminatory acts allegedly committed by Castro.   Auciello argued in opposition that the document was not hearsay and came within certain exceptions to the hearsay rule.   LACCD argued in reply that the document was irrelevant and prejudicial.   The court heard oral argument on motion in limine No. 3 on October 22, 2008.   The motion was granted.   The court found that the document was hearsay, and also that it was “unsigned, undated ․ [and] there are opinions in there that we don't know who is opining.   And I'm not even sure of its relevance.”   The court was concerned about the document's use of “ ‘we’ plural,” without reference to the authors.   In addition, the court found that “the other reasons that were argued in the favor of the motion ․ prevail.”   However, the court granted the motion without prejudice to Auciello later laying a foundation for admission of the document.

Jury Trial

The jury trial took place between October 23 and October 31, 2008.   The judgment on the special verdict was filed on December 11, 2008.   The jury responded to the special verdict form as follows:

“Question 1:  Do you find that the plaintiff engaged in ‘protected activity’ while employed at Los Angeles Trade Technical College (LATTC)?

“[Answer]:  Yes

“Question 2:  When did plaintiff engage in the ‘protected activity’?

“[Answer]:  3/22/04- 3/23/04 8

“Question 3:  Do you find that defendant was aware that plaintiff engaged in the protected activity?

“[Answer]:  Yes

“Question 4:  Do you find that defendant engaged in ‘adverse employment action’ against plaintiff?

“[Answer]:  No.”

The jury's response to question 4 mandated a defense verdict.   The court entered judgment for defendant.

Motion for New Trial

On December 26, 2008, Auciello filed a motion for a new trial, based on, among other things, the court's exclusion of the no confidence document, rejection of the continuing violation doctrine, and instructional error.   The court denied the motion on February 2, 2009.

Auciello filed his notice of appeal from the judgment on February 27, 2009.

DISCUSSION

I. Continuing Violation Doctrine

Auciello's first argument is that the trial court erred in ruling that the continuing violation doctrine is inapplicable to this case.   The court conducted no factual analysis, instead basing its decision solely on the presence of the prior DFEH filings.   The ruling was therefore a purely legal determination, which we review de novo.  (Waterman Convalescent Hospital, Inc. v. State Dept. of Health Services (2002) 101 Cal.App.4th 1433, 1437.)

A. Applicable Law

1. Relevant Statutes of Limitation

FEHA contains two relevant statutes of limitations.   The first one, found in section 12960, subdivision (d), relates to the plaintiff's obligation to timely file an administrative charge with the DFEH.9 The statute provides, in pertinent part:  “No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred․”  Thus, if an employee is experiencing conduct prohibited by FEHA, the employee must file an administrative charge with FEHA within one year of such conduct.

The second relevant statute of limitations is set forth in section 12965, subdivision (b), which provides, in pertinent part:  “the person claiming to be aggrieved may bring a civil action under this part against the ․ employer, ․ named in the verified complaint within one year from the date of that notice.”   Thus, the statute requires that, once an employee has obtained a right-to-sue letter from the DFEH, the employee must file a civil suit within one year. (§ 12965, subd. (b).)  Section 12965, subdivision (b) is “a condition on a substantive right rather than a procedural limitation period for commencement of an action.”  (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 949.)   Thus, it “ ‘cause[s] the right which previously arose and on which a suit could have been maintained, to expire.’   [Citation.]”  (Ibid.)

2. Continuing Violation Doctrine

“[T]he continuing violation doctrine comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period.”   (Richards, supra, 26 Cal.4th at p. 812.)   In Richards, the Supreme Court determined that:

“[A]n employer's persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employer's unlawful actions are (1) sufficiently similar in kind-recognizing, as this case illustrates, that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [citation];  (2) have occurred with reasonable frequency;  (3) and have not acquired a degree of permanence.  [Citation.]”

(Richards, supra, 26 Cal.4th at p. 823.)

The Richards court further explained that “permanence ․ should properly be understood to mean the following:  that an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.”  (Richards, supra, 26 Cal.4th at p. 823.)

The cases cited by the parties involve application of the continuing violation doctrine to permit allegations regarding acts occurring outside of the limitations period set forth in section 12960, subdivision (d).  In other words, where the plaintiff filed a single DFEH complaint, then timely filed a civil suit, the continuing violation doctrine was applied to permit the plaintiff to allege acts occurring more than a year prior to the filing of the DFEH complaint.  (Richards, supra, 26 Cal.4th 798;  Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056-1058 (Yanowitz );  Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 349 [disapproved on other grounds in Richards ].) 10

No case cited by either party has applied the continuing violation doctrine to permit a plaintiff to establish liability based on acts that are time-barred under section 12965, subdivision (b).

B. Continuing Violation Doctrine and Section 12965, Subdivision (b)

Auciello admits that the continuing violation doctrine has never been applied to override the statute of limitations found in section 12965, subdivision (b).  Auciello contends that the trial court's ruling “constituted a categorical bar on application of the continuing violation doctrine to the limitations period contained in Government Code section 12965(b).”  Auciello presents several arguments, grounded in policy and equity, as to why such a “categorical bar” is inappropriate.

1. FEHA Policy Arguments

Auciello's first two arguments are based on the objectives of FEHA. First, Auciello argues, the statute itself requires a liberal interpretation of its provisions. (§ 12993, subd. (a) [“[t]he provisions of this part shall be construed liberally”].)   Auciello argues that because this liberal construction rule warrants application of the continuing violation doctrine to the section 12960, subdivision (d) limitations period, it also warrants application of the continuing violation doctrine to the 12965, subdivision (b) limitations period.

In support of this argument, Auciello cites Richards.   In Richards, the Supreme Court interpreted the statute of limitations found in section 12960, subdivision (d).  The court specifically found the term “ ‘unlawful practice,’ in the context of the statute of limitations,” to be ambiguous.  (Richards, supra, 26 Cal.4th at p. 819.)   In interpreting this statutory ambiguity, the court cited the rule of liberal construction set forth in section 12993, subdivision (a).  (Ibid.) In light of FEHA's goal of safeguarding the employee's right to hold employment without experiencing discrimination, the Richards court determined that “section 12960 should not be interpreted to impose serious practical difficulties on an employee's ability to vindicate this right through litigation if it can be reasonably interpreted otherwise.”   (Richards, supra, at p. 821.)

The same analysis does not apply to section 12965, subdivision (b).  As the Richards court held, the date on which an “unlawful practice” can be said to occur is subject to interpretation, particularly when such “unlawful practice” took place over a period of time.  (Richards, supra, 26 Cal.4th at p. 819.)   In contrast, a plaintiff's right to sue under section 12965, subdivision (b) accrues on the date that plaintiff is issued a right-to-sue letter.   In most cases, the date will be firm and unambiguous.   Thus, the date that a right-to-sue letter is issued-unlike the term “unlawful practice” found in section 12960, subdivision (d)-is not subject to interpretation.   The language of section 12965, subdivision (b), which requires the filing of a lawsuit within one year of the issuance of the plaintiff's right-to-sue notice, cannot be liberally interpreted to permit claims that are barred under its terms.

Auciello's next argument is that the continuing violation doctrine is properly applied to section 12965, subdivision (b), in order to further FEHA's goal of promoting informal conciliation efforts.   Auciello again cites Richards, claiming that strict construction of the section 12965, subdivision (b) limitations period would “prompt the employee to resign at the earliest date to avoid the awkwardness of maintaining employment while pursuing litigation against his or her employer.”  (Richards, supra, 26 Cal.4th at p. 820.)   However, we find that these policy arguments do not apply where, as here, the employee has already abandoned the informal accommodation process and taken steps to pursue legal action.   Auciello took steps to pursue legal action on two prior occasions, and received right-to-sue letters on April 28, 2004 and March 29, 2005.   Because Auciello sought these right-to-sue letters by filing his DFEH charges, the informal accommodation process contemplated in Richards had ended, and the formal litigation process had begun.   Under these circumstances, the policies underlying statutes of limitation prevail.   (See Downs v. Department of Water & Power (1997) 58 Cal.App.4th 1093, 1099-1100 (Downs ) [purposes underlying statutes of limitation are “to protect defendants from having to defend stale claims” and “to require plaintiffs to diligently pursue their claims”].)

2. Equitable Exceptions to Statutes of Limitations

Auciello next raises two equitable exceptions to statutes of limitations:  the doctrine of equitable tolling and the “relation-back” doctrine.   As support for the proposition that the doctrine of equitable tolling is applicable to section 12965, subdivision (b), Auciello cites Downs, supra, 58 Cal.App.4th at page 1101, footnote 3, and Salgado v. Atlantic Richfield Co. (9th Cir.1987) 823 F.2d 1322, 1324-1325.11  These cases both found the limitations period in section 12965, subdivision (b) to be equitably tolled while the plaintiff pursued federal administrative remedies.12  There is no evidence that Auciello undertook to pursue any federal administrative remedies in this matter, so the cited cases are inapplicable.   Auciello provides no other argument or support for application of the doctrine of equitable tolling, therefore we decline to find that it is applicable here.

Auciello explains that, under the “relation-back” doctrine, “courts will permit late-filed pleadings if they ‘relate back’ to an earlier complaint.”   In support of his position that this doctrine should apply here, Auciello cites Goldman v. Wilsey Foods (1989) 216 Cal.App.3d 1085 and Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255.   In both cases, the doctrine was applied to permit claims found in a civil complaint where those claims related back to an earlier filed civil complaint.   Neither case applied the doctrine to avoid the statute of limitations set forth in section 12965, subdivision (b).  Thus, neither case persuades us that the doctrine is applicable here.

C. The Court Did Not Err in its Application of Relevant Case Law

Auciello next argues that the court misapplied the relevant law when determining that the continuing violation doctrine was inapplicable in this particular case.   Specifically, Auciello claims that the court erred in applying the test set forth in Berry v. Board of Sup'rs of L.S.U. (5th Cir.1983) 715 F.2d 971, 981 (Berry ), which, according to Auciello, was “explicitly rejected” by the California Supreme Court in Richards.13

The Berry court set forth three factors to be considered when determining whether application of the continuing violation doctrine is appropriate.   Those factors are:  (1) whether the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation;  (2) whether the alleged acts are recurring or isolated acts;  and (3) whether the act has the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights.  (Berry, supra, 715 F.2d at p. 981.)   The Berry test has been widely adopted by federal courts.  (Richards, supra, 26 Cal.4th at p. 814.)

In Richards, the Supreme Court adopted a “modified version” of the Berry test.  (Richards, supra, 26 Cal.4th at p. 823.)   As in Berry, the Richards court, as we discussed above, found that a continuing violation may be found “if the employer's unlawful actions are (1) sufficiently similar in kind ․;  (2) have occurred with reasonable frequency;  (3) and have not acquired a degree of permanence.”  (Richards, supra, at p. 823.)   However, the Richards court further held that “ ‘permanence’․ should properly be understood to mean the following:  that an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.”  (Ibid.)

Preliminarily, we disagree with Auciello's position that Richards “explicitly rejected” Berry.   In fact, the tests are very similar, with some modifications “consistent with [California] case law and with the statutory objectives of the FEHA.” (Richards, supra, 26 Cal.4th at p. 823.)   However, Auciello argues that this modification is significant.   He claims that the relevant question regarding permanence was not “when the employee suspects a violation, as the trial Court here believed.”   Instead, Auciello argues, the relevant question should be “at what point would a reasonable employee have realized that litigation was ‘the only alternative for the vindication of his [ ] rights?’ ”   This question, Auciello argues, the trial court did not ask.

Under the circumstances of this case, the distinction between the Berry test and the Richards test is insignificant.   Auciello's act of abandoning the process of informal conciliation and seeking to commence litigation showed that he was beyond the point of merely suspecting a violation, and believed that litigation was his only alternative.   There was no need for a jury to weigh competing facts as to the point in time when a reasonable employee should have believed that the required degree of permanence was present-that permanence was definitively established by uncontradicted evidence that Auciello sought and obtained two previous right-to-sue letters. (§ 12960, subds.(a)-(d).)  The “permanence” factor of the continuing violation test is therefore met under either test.

II. Totality of Circumstances

Auciello's next contention is that trial court rulings prevented him from fully presenting his case.   Auciello argues that the trial court only permitted evidence of events occurring on the near side of the “magical year”-one year prior to the filing of Auciello's final DFEH charge in October 2006.   While Auciello admits that the court indicated it would allow some time-barred material as background, he claims that the court's “evidentiary rulings, admonitions to counsel, and jury instructions made clear that evidence of actions falling on the wrong side of the time bar would not be permitted even as ‘background.’ ”   Thus, Auciello argues, he was prevented from presenting the full “campaign of retaliatory harassment that lasted more than two years before it drove him to an extended stress leave.”

Auciello cites case law indicating that, when retaliation consists of assorted acts rather than “one swift blow,” those acts must be viewed collectively.   (Yanowitz, supra, 36 Cal.4th at pp. 1055-1056.)   The trial court did not disagree that the totality of circumstances must be considered where the plaintiff has alleged a “pattern of systematic retaliation.”  (Ibid.) However, the court specified that in this matter “the concept of totality of the circumstances has to be within the [one-year] time frame also.” 14

In addition, Auciello's claim that he was prevented from presenting the totality of circumstances is undermined by the record.   The jury specifically found that Auciello engaged in protected activity in March 2004-the date when Auciello filed his first DFEH charge.   As LACCD points out, the record as a whole shows that Auciello was permitted to present evidence covering the entire time period between his three DFEH complaints.   He was permitted to testify extensively regarding his complaints about Castro, which dated back to 2004.   He also described his attempts to meet with Landsberger in 2005 regarding his concerns about Castro.   Auciello's March 2004 DFEH charge, as well as February 2005 DFEH charge, were admitted into evidence over LACCD's objections.   Auciello was permitted to testify as to the contents of the documents, as well as the adverse effects he suffered from the actions described therein.

In sum, Auciello has failed to demonstrate that the trial court's general ruling regarding totality of circumstances constituted prejudicial error under the circumstances of this case.

III. Instructional Error

Auciello next argues that the trial court's jury instructions “pre-ordained” a defense verdict.   Auciello complains about three specific instructions:  (1) the court's instruction that Auciello was required to prove that he was “subjected to ‘adverse employment action,’ within a relatively short time after the ‘protected activity’ ”;  (2) the court's instruction that the jury was not to consider “any ‘adverse employment actions' or damages that occurred outside the time period 10/26/05 to 10/26/06”;  and (3) the court's instruction that “ ‘Adverse employment action’ means to retaliate by discriminating against a person in compensation or in terms, conditions, or privileges of employment because of that person's engaging in ‘protected activity.’ ”

When reviewing claims of instructional error, we apply the prejudicial error standard.   Under this standard, we analyze whether the instruction was erroneous, and, if so, whether the error was so prejudicial as to result in a miscarriage of justice.  (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)   As set forth below, we find no prejudicial error in any of the challenged instructions.

A. The Temporal Proximity Instruction

The court's instruction that an adverse employment action must occur within a relatively short time after the employee engaged in protected activity is well supported in the law.   The elements of a retaliation case are:  (1) protected activity;  (2) adverse employment action;  and (3) a causal link between the two.  (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1252.)   The causal link is proved by establishing retaliatory motive.  “ ‘The retaliatory motive is “proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.”   [Citation.]․’ ”  (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)  Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615, cited by the trial court, also confirms that “retaliatory motive is ‘proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.’  [Citation.]”

Auciello argues that proximity in time is not the only way to prove a causal link, citing Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413.   In Wysinger, the Court of Appeal rejected an argument that more than three years between the protected activity and the adverse action made the events too remote to be causally connected.   The Wysinger court found that a “pattern of conduct consistent with a retaliatory intent” demonstrated a causal connection despite the time lapse.  (Id at p. 421;  see also Kachmar v. Sungard Data Systems, Inc. (9th Cir.1987) 109 F.3d 173, 178.)   We find that the court adequately allowed for such a finding by instructing the jury that “[t]he ‘causal link’ may be established from circumstantial evidence such as defendant's knowledge that plaintiff engaged in ‘protected activity’ and the ‘proximity in time’ between the ‘protected activity’ and the alleged ‘adverse employment action.” ’  (Italics added.)

Even if error had occurred, it was not prejudicial.   The defense verdict did not result from the jury's determination that no causal link existed between the protected activity and an adverse employment action.   The jury did not even reach that question.   Instead, the jury found that Auciello had not suffered any adverse employment action at all.   Because the jury determined that Auciello had not been subjected to an adverse employment action at any relevant time, the issue of a causal link was moot.   Thus, the purported error could not have been “a factor in the verdict.”  (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 704.)

B. The October 2005-October 2006 Instruction

In accordance with its prior rulings regarding the statute of limitations, the trial court instructed the jury that it was not to “consider any ‘adverse employment actions' or damages that occurred outside the time period 10/26/05 to 10/26/06.”   Auciello reiterates his arguments that “under the continuing violation doctrine and the ‘totality of circumstances' rule, the Court should have permitted consideration of adverse acts outside the one-year period.”

We have already rejected Auciello's arguments that the trial court erred in restricting Auciello's evidence of liability to the one-year period prior to the filing of the relevant DFEH charge.  (See Sections I and II, ante.)   Thus, we decline to find error in the court's instruction limiting the jury's consideration of adverse actions to that time period.

However, as noted above, Auciello was not prevented from presenting historical facts regarding his employment.   Significantly, the “protected activity” which the jury found to have occurred was Auciello's filing of his initial DFEH complaint in which he alleged racial discrimination against non-Hispanics.   Further, the court's ruling did not prevent the jury from considering evidence of Drummond's acts in blocking Auciello's opportunity to work with the Department of Homeland Security;  Sherer's hostile conversation with Auciello;  Sherer's drafting of a notice of unsatisfactory performance;  the denial of Auciello's request to add summer classes and cancellation of his fall 2006 teaching schedule;  Auciello's reassignment to night school and nonteaching duties;  and Auciello's medical leave.   All of these acts occurred within the October 2005 to October 2006 time frame.   The jury determined that they were not adverse employment actions within the meaning of that term.

C. Instruction Defining Adverse Employment Action

The trial court's instruction defining “adverse employment action” contained two sentences.   It read:

‘ “Adverse employment action’ means to retaliate by discriminating against a person in compensation or in terms, conditions, or privileges of employment because of that person['s] engaging in ‘protected activity.’   It includes the entire spectrum of employment actions that are reasonably likely to adversely and materially affect the terms [and] conditions of plaintiff's employment.”

Auciello objects to the first sentence of the instruction, arguing that “the jury could not have found adverse action without first finding retaliation, discrimination, protected activity and a causal nexus.”   Auciello fails to elaborate on how this constituted error, instead conceding that “[t]his misstated formula, standing alone, might not require reversal” but “combined with other instructional error,” left the jury with no choice but to find no adverse action.

We have found no other instructional error, and Auciello has failed to show error regarding this instruction “standing alone.”   In fact, Auciello agrees that “adverse action” may be defined as action that negatively and materially affects the terms and conditions of employment.  (Yanowitz, supra, 36 Cal.4th at p. 1036.)   The trial court properly included this language within the instruction.   No error occurred.

IV. Evidentiary Rulings

Auciello next argues that the trial court abused its discretion by excluding key evidence of protected activity.   Auciello's arguments focus on the trial court's exclusion of (1) the no confidence document, (2) evidence that Auciello participated on a fact finding committee, and (3) evidence of Auciello's internal complaints of Castro's discriminatory behavior.

A trial court's evidentiary rulings are reviewed for abuse of discretion.   Under this standard, we are deferential to the trial court's ruling, upholding it unless it “ ‘falls outside the bounds of reason’ under the applicable law and the relevant facts [citations].”  (People v. Williams (1998) 17 Cal.4th 148, 162.)   We address each ruling separately below, and conclude that no error occurred.

A. The No Confidence Document

LACCD filed a motion in limine seeking to exclude the no confidence document on numerous grounds.   Specifically, LACCD argued that the document was irrelevant, hearsay, inadmissible opinion evidence, improper character evidence, and contained inadmissible lay opinions about the veracity of particular statements or actions by Castro.   In addition, in its reply brief on the motion, LACCD argued that the opinions contained in the no confidence document were highly prejudicial and should also be excluded under Evidence Code section 352.

At the hearing on the motion, the court held:

“I'm going to grant the motion.   First of all, I think it's hearsay, notwithstanding the opposition arguments.   It's unsigned, undated even if it's not hearsay.   There are opinions in there that we don't know who is opining.   And I'm not even sure of its relevance.   I noted in the argument that plaintiff said he offered the document.   But the document itself says, uses the term ‘we’ plural, and I don't know who authored it.   I suppose we could take plaintiff at his word.   But notwithstanding that, the other reasons that were argued in favor of the motion I think prevail, so I'm going to grant that motion.”

Thus, the court found that the document was inadmissible for all the reasons set forth in LACCD's motion.   Notably, the trial court specified that its ruling was “without prejudice” to Auciello later establishing the admissibility of the document.

Auciello argues on appeal that the document is not hearsay, is relevant, does not reflect opinion and character, was not excludable on authentication grounds, and is more probative than prejudicial.   Despite Auciello's arguments, we find that the trial court's decision was well within the bounds of reason.   On its face, the unsigned document indicates that it was authored by “a group of LATTC faculty.”   The authors are referred to in the plural, as “we” and “our.”   Despite Auciello's statement that he authored the document, the trial court did not err in determining that authentication was problematic.

Further, the court did not err in determining that the document was improper character evidence under Evidence Code section 1101, and was more prejudicial than probative under Evidence Code section 352.   While Auciello argues that the document was offered to show that Auciello voiced opposition to discriminatory employment practices, a review of the document reveals that the majority of the issues raised in the document concerned completely irrelevant matters.   The document focused on issues such as Castro's questionable qualifications, misuse of authority, fraud, elimination of the journalism program, and nepotism.   The trial court did not err in determining that this deluge of negativity, unconnected to the issues in the case, was highly prejudicial and irrelevant.

In sum, we find that the trial court did not abuse its discretion in excluding the no confidence document from evidence.

B. The Fact Finding Committee

The trial court sustained LACCD's objection to admission of testimony regarding Auciello's participation in a fact finding committee in the spring of 2004.   Auciello's counsel inquired:  “Now did you convene a fact finding committee against Daniel Castro comprised of the Academic Senate and Student Senates?”   LACCD's counsel objected, based on an “in limine” ruling of the trial court, and the trial court sustained the objection.   We assume that this was a reference to LACCD's motion in limine No. 2, which the trial court granted in part, finding that the events pertaining to Auciello's March 2004 and February 2005 DFEH charges were “not relevant to any damage claim to the plaintiff.”

As discussed above, the trial court did not err in determining that evidence of events that were time-barred under section 12965, subdivision (b) was irrelevant and inadmissible.   The trial court's ruling on motion in limine No. 2 was based on its decision to enforce that statute of limitations, and thus, was also proper.   The challenged evidentiary ruling regarding the fact finding committee, which was consistent with those prior rulings, was not an abuse of the trial court's discretion.

C. Auciello's Internal Complaints

In his final evidentiary argument, Auciello states that the trial court did not allow him to state “whether he had shared with the administration his complaints against Castro for ‘race favoring.’ ”   Auciello then cites to trial testimony in which Auciello was testifying about other individuals who “shared [Auciello's] complaints about Daniel Castro.” 15  The trial court overruled LACCD's first hearsay objection to this testimony, and allowed Auciello to state the names of the individuals who “sought” him out and expressed similar opinions.   However, the trial court sustained hearsay objections to the following questions posed by Auciello's counsel:  “And did these people share your complaints about Castro?”;  “These people were aware that you had complaints against Castro for race favoring Hispanics?”;   and “Did you share with these people that you had a complaint against Castro for race favoring Hispanics?”

Hearsay is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.  (Evid.Code, § 1200, subd. (a).)  All three questions sought testimony regarding out of court statements.   Auciello argues that they were not offered to prove the truth of the matter stated, but to establish “(1) that Auciello engaged in protected activity;  (2) that the administration was aware of his complaints;  and (3) the reactions of administrators to those complaints.”   Notably, Auciello's counsel did not raise this argument with the trial judge at the time.   Thus, we decline to find that the trial court's hearsay rulings were beyond its discretion.

V. Prejudice

Because we have determined that the trial court committed no error, we do not discuss Auciello's claims of prejudice.

DISPOSITION

The judgment is affirmed.   LACCD is awarded to its costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1. All further statutory references are to the Government Code unless otherwise noted..  FN1. All further statutory references are to the Government Code unless otherwise noted.

FN2. Some of the evidence supporting the recited facts was excluded from trial.   Because Auciello's contentions focus on the trial court's exclusion of such evidence, we include it here..  FN2. Some of the evidence supporting the recited facts was excluded from trial.   Because Auciello's contentions focus on the trial court's exclusion of such evidence, we include it here.

FN3. Exhibit 207, “Topics for a ‘Vote of No Confidence’ Discussion on President Daniel A. Castro by the LATTC Academic Senate.   April, 2004” (no confidence document) was excluded from evidence at trial for various reasons including lack of foundation and hearsay.   Auciello contests the trial court's evidentiary ruling.   This document provided a basis for Auciello's allegations that Castro's new hires were overwhelmingly Hispanic, and that LATTC promotional literature was created in Spanish only..  FN3. Exhibit 207, “Topics for a ‘Vote of No Confidence’ Discussion on President Daniel A. Castro by the LATTC Academic Senate.   April, 2004” (no confidence document) was excluded from evidence at trial for various reasons including lack of foundation and hearsay.   Auciello contests the trial court's evidentiary ruling.   This document provided a basis for Auciello's allegations that Castro's new hires were overwhelmingly Hispanic, and that LATTC promotional literature was created in Spanish only.

FN4. Evidence of Castro's comment that he was “out to get” Auciello was excluded on the ground that it occurred “outside the relevant time period.”.  FN4. Evidence of Castro's comment that he was “out to get” Auciello was excluded on the ground that it occurred “outside the relevant time period.”

FN5. Evidence of Auciello's participation on the fact finding committee was excluded on the basis of a motion in limine filed by LACCD..  FN5. Evidence of Auciello's participation on the fact finding committee was excluded on the basis of a motion in limine filed by LACCD.

FN6. Raul Cardozo was a mathematician who commenced his employment at LATTC at the same time as Castro..  FN6. Raul Cardozo was a mathematician who commenced his employment at LATTC at the same time as Castro.

FN7. Auciello filed a grievance against Sherer following this incident, alleging that Sherer poked him in the chest.   Sherer denied poking or touching Auciello..  FN7. Auciello filed a grievance against Sherer following this incident, alleging that Sherer poked him in the chest.   Sherer denied poking or touching Auciello.

FN8. As set forth above, Auciello's first DFEH charge was filed on March 22, 2004..  FN8. As set forth above, Auciello's first DFEH charge was filed on March 22, 2004.

FN9. Section 12960 governs “the procedure for the prevention and elimination of practices made unlawful” under FEHA. Section 12960, subdivision (b) sets forth the procedure for filing an administrative complaint with DFEH regarding such unlawful practices.   Under California law, an employee must exhaust the administrative remedy provided by FEHA and obtain the DFEH's notice of right-to-sue before bringing suit on a cause of action under FEHA. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.).  FN9. Section 12960 governs “the procedure for the prevention and elimination of practices made unlawful” under FEHA. Section 12960, subdivision (b) sets forth the procedure for filing an administrative complaint with DFEH regarding such unlawful practices.   Under California law, an employee must exhaust the administrative remedy provided by FEHA and obtain the DFEH's notice of right-to-sue before bringing suit on a cause of action under FEHA. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.)

FN10. In Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, the plaintiff filed two DFEH charges.   However, in contrast to the situation here, she did not allow her right to commence civil litigation to expire.   She received her first right-to-sue letter in August 1978, and filed her first civil complaint in January 1979.   After amending several times, the parties stipulated that the matter would be taken off calendar to allow the plaintiff to file a second charge with DFEH and then file a third amended complaint in lieu of filing a second lawsuit for retaliation stemming from the first DFEH charge.   Thus, while the continuing violation doctrine was found applicable in Watson, the statute of limitations under section 12965, subdivision (b) was not at issue..  FN10. In Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, the plaintiff filed two DFEH charges.   However, in contrast to the situation here, she did not allow her right to commence civil litigation to expire.   She received her first right-to-sue letter in August 1978, and filed her first civil complaint in January 1979.   After amending several times, the parties stipulated that the matter would be taken off calendar to allow the plaintiff to file a second charge with DFEH and then file a third amended complaint in lieu of filing a second lawsuit for retaliation stemming from the first DFEH charge.   Thus, while the continuing violation doctrine was found applicable in Watson, the statute of limitations under section 12965, subdivision (b) was not at issue.

FN11. “ ‘ “Because the antidiscrimination objectives and relevant wording of title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.) ] [and other federal antidiscrimination statutes] are similar to those of the FEHA, California courts often look to federal decisions interpreting these statutes for assistance in interpreting the FEHA.” ’ [Citation.]”  (Richards, supra, 26 Cal.4th at p. 812.)   Relevant federal case law is therefore discussed throughout this opinion..  FN11. “ ‘ “Because the antidiscrimination objectives and relevant wording of title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.) ] [and other federal antidiscrimination statutes] are similar to those of the FEHA, California courts often look to federal decisions interpreting these statutes for assistance in interpreting the FEHA.” ’ [Citation.]”  (Richards, supra, 26 Cal.4th at p. 812.)   Relevant federal case law is therefore discussed throughout this opinion.

FN12. The ruling in Downs was codified in section 12965, subdivision (d)..  FN12. The ruling in Downs was codified in section 12965, subdivision (d).

FN13. We have determined that, under the circumstances of this case, the continuing violation doctrine may not be applied to override the statute of limitations found in section 12965, subdivision (b).  Therefore, Auciello's argument that the trial court applied the wrong legal standard for determination of a continuing violation is not determinative of the outcome of this appeal.   We discuss it briefly only to completely address Auciello's arguments..  FN13. We have determined that, under the circumstances of this case, the continuing violation doctrine may not be applied to override the statute of limitations found in section 12965, subdivision (b).  Therefore, Auciello's argument that the trial court applied the wrong legal standard for determination of a continuing violation is not determinative of the outcome of this appeal.   We discuss it briefly only to completely address Auciello's arguments.

FN14. Auciello raises no specific evidentiary rulings in connection with this argument.   Instead, he addresses the trial court's legal ruling that, in this matter, Auciello's presentation of the totality of the circumstances must be limited to matters occurring within the October 2005-October 2006 time frame.   Thus, it was a legal ruling which we review de novo.  (Waterman Convalescent Hospital, Inc. v. State Dept. of Health Services, supra, 101 Cal.App.4th at p. 1437.).  FN14. Auciello raises no specific evidentiary rulings in connection with this argument.   Instead, he addresses the trial court's legal ruling that, in this matter, Auciello's presentation of the totality of the circumstances must be limited to matters occurring within the October 2005-October 2006 time frame.   Thus, it was a legal ruling which we review de novo.  (Waterman Convalescent Hospital, Inc. v. State Dept. of Health Services, supra, 101 Cal.App.4th at p. 1437.)

FN15. Contrary to Auciello's brief, Auciello appeared to be testifying about other individuals who shared his opinions about Castro, not about his efforts to bring informal complaints to members of the administration.   In fact, he was permitted to testify about his attempts to meet with Landsberger regarding his complaints about Castro..  FN15. Contrary to Auciello's brief, Auciello appeared to be testifying about other individuals who shared his opinions about Castro, not about his efforts to bring informal complaints to members of the administration.   In fact, he was permitted to testify about his attempts to meet with Landsberger regarding his complaints about Castro.

_, Acting P.J. DOI TODD _, J. ASHMANN-GERST

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