Filed 7/29/14 Gonzalez v. Envoy Mortgage CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE

LILLIAN MARI GONZALEZ,
         Plaintiff and Appellant,
                                                                     A135936
v.
ENVOY MORTGAGE LTD. ET AL.,                                          (Contra Costa County
                                                                     Super. Ct. No. MSC1002506)
         Defendants and Respondents.

         Lillian Mari Gonzalez (appellant) appeals from a summary judgment entered in
favor of Envoy Mortgage, Ltd. (Envoy) and Peggy Valley (Valley) (together,
respondents) in her employment discrimination action. She contends the trial court erred
in granting summary judgment because there were triable issues of fact as to whether she
was terminated due to her disability and whether Envoy engaged in the interactive
process and reasonably accommodated her. We reject her contention and affirm the
judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         On March 5, 2009, Valley, the Branch Manager for the Concord, California
branch of Envoy, hired appellant as a Senior Mortgage Banker at that branch. Appellant
reported to Valley. As a Senior Mortgage Banker, appellant was responsible for retail
mortgage loan originations. She went into the office for the first two months of
employment because her personal laptop work computer had crashed and she could not
work from home. However, she was not required to go into the office and could perform




                                                             1
her job duties almost entirely from outside the office. Appellant’s employment was
“expressly” at-will, and she “absolutely” understood she was employed at-will.
       Upon hire, appellant agreed to the terms in Envoy’s offer letter and also executed
a loan officer agreement. She agreed, among other things, that the “mutually shared
expectations for the levels of mortgage loan originations” were that she would achieve a
minimum of two loans per month totaling $500,000 in amount.1 Appellant originated
only two loans during her seven months of employment with Envoy—one $396,000 loan
on June 5, 2009, and one $318,000 loan on September 9, 2009.2 Appellant
acknowledged she never met the minimum funding level; she responded, “No” when
asked at her deposition whether she, “[a]t any time during [her] employment with
Envoy,” “achieve[d] the target of two units of $500,000 [per month].”
       On or about June 14, 2009, appellant informed Valley that she was being admitted
to the hospital for meningitis.3 Valley did not know the nature or symptoms of
meningitis. Two days later, appellant told Valley she was being released from the
hospital. Appellant did not provide Envoy with any medical documentation of her
hospital stay, medical condition and/or permanent or long-term work restrictions. The
hospital discharged her in “good condition with a good prognosis” and without any
restrictions. Appellant’s treating physician did not give her any “restrictions” following

       1
          On March 4, 2009, before appellant signed the offer letter and agreement, Valley
sent an email to appellant addressing appellant’s concern “about coming on and not
making the numbers.” Valley said, “these days are hard times. I understand the concern
but it won’t be for always . . . Once [banks ‘open their doors to Mortgage
Bankers’] . . . there will be . . . [a lot] more business to be had by 2010. Then we will be
looking for the standards we seek. All I ask is do your best.”
        2
          The second loan funded on October 5, 2009, after appellant had been terminated
from her employment with Envoy.
        3
          Appellant stated in her declaration that she “began experiencing severe
headaches, vertigo, and extreme fatigue” in May 2009. She declared she “spoke to
both . . . Valley and [Assistant Manager] Matthew Steinmetz of these on-going
conditions.”


                                             2
her discharge from the hospital and stated, “if it did not hurt her and she wasn’t too dizzy,
she could do it.” The day after her discharge from the hospital, appellant informed
Valley that, “[d]ue to [her] illness,” she would need Valley’s help “to reschedule some of
[her] appointments.” Appellant told Valley that she would be in home care for 10 days
and would not be going into the office as much during that period.4
       Valley followed up with appellant during these 10 days and also communicated
with her frequently during her brief hospital stay. During their telephone conversations,
appellant did not request any other accommodation, such as a leave of absence or a
reduction in her workload; according to appellant, “[all mortgage bankers] worked on
[their] own time [anyway].”
       On July 9, 2009, appellant emailed Valley and Assistant Manager Matthew
Steinmetz to inform them that she was working on “30 [loans] in the pipeline and 10
closing[s] a month.” On July 28, 2009, appellant sent Valley and Steinmetz another
email that she had been “packing and getting ready to move,” but that she was “working
on email advertising to motivate some new business with the local realtors and with the
Spanish speaking realtors thru association.” Appellant did not mention in either of these
emails that she was suffering from any illness, or any illness that necessitated work
restrictions or accommodations.
       On August 4, 2009, Valley sent appellant an email stating, “[s]ince March you
have closed only 1 loan. This is not in compliance with your contract with our office. If
we cannot get this turnaround [sic] immediately, I will have no choice but to terminate
your contract effective 8/31/09 due to non-compliance.” Appellant testified at her
       4
        Appellant states in her opening brief that she “informed [Valley] that she was
being discharged to Home Care from June 20, 2009 to August 18, 2009.” The two record
citations she provides, however, do not support this statement. The first record citation is
an excerpt from appellant’s deposition showing she informed Valley of a 10 day home
care period. The second record citation is a medical document authorizing home care for
appellant from June 20, 2009 to August 18, 2009. The document, however, does not
show that appellant informed Valley of that longer home care period.

                                             3
deposition that she did not receive this email until September 14, 2009. Valley stated in a
declaration that the fact that appellant had closed only two loans totaling $714,000 during
her seven months of employment with Envoy was unacceptable, particularly because
appellant was a Senior Mortgage Banker with twelve and a half years of experience.
       On September 10, 2009, appellant sent an email to Valley stating, “I have a
doctor’s appointment on the 20th. I need to be checked. I am still having health issues
and [am] emotionally beat up.” On September 11, 2009, Valley sent an email to
appellant, stating, “Lillian, after reviewing your contract and current performance since
my email on August 4, 2009, I am making a tough decision to terminate your
employment with Envoy Mortgage effective 9/30/09.” Around the time of appellant’s
termination, Valley also terminated two other employees—neither with any known or
perceived disabilities—for non-compliance with minimum loan targets.
       On September 11, 2009, the day she received notice of her termination, appellant
visited her doctor. Her doctor’s internal notes from that visit indicated she was “having
no residuals from her aseptic meningitis, specifically, no headaches, visual changes,
difficulty sleeping.” Appellant’s doctor did not recommend any limitations on her ability
to work at that time. On September 21, 2009, appellant met with her doctor who placed
her on disability leave from June 16, 2009 to November 1, 2009. On September 21,
2009, appellant’s doctor completed a disability notice on her behalf with the California
Employment Development Department (EDD). Valley submitted the form to Envoy’s
human resources manager, and he confirmed receipt.
       On October 6, 2009, appellant emailed Envoy’s human resources manager asking
if he had received a copy of her disability notice, and requesting reinstatement of her
employment in light of that fact. Envoy denied her request. In the summary judgment
proceedings, Envoy objected on foundation and relevancy grounds to appellant’s
evidence that she provided notice to Envoy of her disability after she was notified of her
termination on September 11, 2009. The trial court sustained Envoy’s objections.

                                             4
Specifically, the trial court excluded evidence of: (1) the September 21, 2009 disability
benefits claim form completed by appellant’s doctor and submitted to the EDD;
(2) appellant’s communication of the EDD notice to Envoy’s human resources
department; (3) Envoy’s human resources department’s response to appellant’s
communications; and (4) appellant’s post-termination communications with the
Department of Fair Employment and Housing.5
       On September 8, 2010, appellant filed an action against Envoy and Valley under
the Fair Employment and Housing Act (FEHA) for disability discrimination, race and
disability harassment, failure to engage in the interactive process and failure to
accommodate, failure to prevent discrimination and harassment, retaliation, wrongful
termination and intentional infliction of emotional distress.
       In the disability discrimination cause of action, appellant alleged that Envoy
“made numerous decisions based on [its] knowledge and/or belief of appellant’s Medical
Disability and/or Perceived Disability,” including subjecting her to harassment based on
her disability, failing to accommodate her, and terminating her employment. In her cause
of action for failure to accommodate, appellant alleged that Envoy refused to
accommodate her despite the fact that she asked Envoy to “make reasonable
accommodation for her disability by providing her with leave and/or a reduced work
schedule and requirements.” In her cause of action for failure to engage in the interactive
process, appellant alleged that Envoy failed to participate in “a timely good-faith
interactive process with [appellant] to determine whether reasonable accommodation
could be made . . . .”
       Envoy filed a motion for summary judgment or summary adjudication. It
submitted Valley’s declaration and excerpts from the transcripts of Valley, appellant,

       5
       Appellant discusses this evidence in her opening brief without explaining that it
was excluded. On appeal, she does not challenge any of the trial court’s rulings
excluding this evidence, and we therefore do not discuss the evidence further.


                                              5
appellant’s treating physician, and Envoy’s human resources manager’s depositions.
Envoy also submitted appellant’s employment contract and several email
communications between appellant and Envoy personnel. In her declaration, Valley
stated she never perceived appellant as disabled during her employment and “had
absolutely no knowledge that [appellant] was disabled when [she] made the decision to
terminate her employment . . . .” Valley stated that appellant’s poor work performance
and low production were the reasons for her termination. Valley also stated that around
the time she terminated appellant, she terminated two other employees, neither of whom
were disabled or perceived as disabled, for the same reasons, i.e., poor work performance
and low production. Valley declared that appellant never complained of any
discrimination or harassment due to any claimed disability, and that she did not know,
until the day after appellant was terminated, that appellant was claiming any
discrimination based on disability. Envoy argued it could not be liable for disability
discrimination in the absence of any evidence that it knew appellant claimed to be
suffering from a disability. Envoy further argued that appellant’s termination was based
on a legitimate business reason and not on any discriminatory motive.
       With respect to the causes of action for failure to accommodate and failure to
engage in the interactive process, Envoy argued there were no triable issues regarding
these claims due to the absence of any evidence that Envoy had knowledge of any
disability. Envoy further argued that the evidence established that it had granted the
modest and temporary accommodation requests appellant had made in connection with
her hospitalization and following her home care period in June 2009.
       In her opposition to the summary judgment motion, appellant argued that her
June 2009 communications with Valley regarding her meningitis diagnosis and
hospitalization were sufficient to put Envoy on notice that she had a disability. With
respect to the reason for her termination, appellant argued that Envoy’s proffered reasons



                                             6
for terminating her were pretextual because Valley had sent her an email stating appellant
would not be held to the contractual monthly funding requirements for the first year.
       The trial court granted Envoy’s summary judgment motion. As to the disability
discrimination claim, the court found there was no triable issue that Envoy had
knowledge of appellant’s claimed disability prior to her termination. Knowledge of an
illness and hospitalization were insufficient to show a disability, “given the lack of
evidence that [appellant]’s meningitis necessarily caused her to be disabled.” The court
also granted summary adjudication of the disability discrimination claim on the ground
that appellant had failed to overcome Envoy’s showing of a legitimate, non-
discriminatory reason for her termination. The court noted that appellant had submitted
evidence that “Valley informed her upon hire that the [two loans per month/$500,000]
sales quota in her offer letter was flexible.” However, because appellant did not dispute
that she closed only two loans during the entire time she was employed at Envoy, the
court concluded “it is reasonable to infer that [appellant]’s performance fell below even
the lowered standards that Valley initially set forth.” As to the failure to accommodate
and the failure to engage in the interactive process causes of action, the court found
appellant had failed to submit any evidence that Envoy refused any illness-related
accommodation appellant had requested or that Envoy had failed to communicate with
appellant regarding her illness. Judgment was entered on May 10, 2012.
                                        DISCUSSION
       Appellant contends the trial court erred in granting summary judgment because
there were triable issues of fact as to whether she was terminated due to her disability and
whether Envoy engaged in the interactive process and reasonably accommodated her.
We disagree.
                                      Legal Standards
       A court may grant a summary judgment only if “there is no triable issue of
material fact and the moving party is entitled to judgment in its favor as a matter of law.”

                                              7
(Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must
show that one or more elements of the plaintiff’s cause of action cannot be established or
that there is a complete defense. (Id., subd. (p)(2).) Once the defendant makes that
showing, the burden shifts to the plaintiff to present evidence creating a triable issue of
material fact. (Id., subd. (p)(2).)
       In an employment discrimination case, an employer may move for summary
judgment against a discrimination cause of action with evidence of a legitimate,
nondiscriminatory reason for the adverse employment action. (Guz v. Bechtel National,
Inc. (2000) 24 Cal.4th 317, 357 (Guz); Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th
1088, 1097–1098 (Kelly).) A legitimate, nondiscriminatory reason is one that is
unrelated to prohibited bias and that, if true, would preclude a finding of discrimination.
(Guz, supra, 24 Cal.4th at p. 358.) The employer’s evidence must be sufficient to allow
the trier of fact to conclude that it is more likely than not that one or more legitimate,
nondiscriminatory reasons were the sole basis for the adverse employment action. (Kelly,
supra, 135 Cal.App.4th at pp. 1097–1098.)
       By presenting such evidence, the employer shifts the burden to the plaintiff to
present evidence that the employer’s decision was motivated at least in part by prohibited
discrimination.6 (Guz, supra, 24 Cal.4th at pp. 353, 357; Kelly, supra, 135 Cal.App.4th at
p. 1098.) The plaintiff’s evidence must be sufficient to support a reasonable inference

       6
          This burden-shifting test is derived from the three-stage burden-shifting test
established by the United States Supreme Court for use at trial in cases involving claims
of employment discrimination based on disparate treatment, known as the McDonnell
Douglas test (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36
L.Ed.2d 668]; Guz, supra, 24 Cal.4th at pp. 354, 357.) A plaintiff has the initial burden
at trial to establish a prima facie case of employment discrimination. (Id. at p. 354.) On
a summary judgment motion, in contrast, a moving defendant has the initial burden to
show that a cause of action has no merit (Code Civ. Proc., § 437c, subd. (p)(2)) and
therefore has the initial burden to present evidence that its decision was motivated solely
by legitimate, nondiscriminatory reasons. (Kelly, supra, 135 Cal.App.4th at pp. 1097–
1098.)

                                               8
that discrimination was a substantial motivating factor in the decision. (Harris v. City of
Santa Monica (2013) 56 Cal.4th 203, 232; Guz, supra, at pp. 353, 357.) The stronger the
employer’s showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff’s
evidence must be in order to create a reasonable inference of a discriminatory motive.
(Guz, at p. 362 & fn. 25.)
       “[I]f nondiscriminatory, [the employer’s] true reasons need not necessarily have
been wise or correct. [Citations.] While the objective soundness of an employer’s
proferred reasons supports their credibility . . . , the ultimate issue is simply whether the
employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ reasons
[citation] in this context are reasons that are facially unrelated to prohibited bias, and
which, if true, would thus preclude a finding of discrimination.” (Guz, supra, 24 Cal.4th
at p. 358.)
       We review the trial court’s ruling on a summary judgment motion de novo,
liberally construe the evidence in favor of the party opposing the motion, and resolve all
doubts concerning the evidence in favor of the opponent. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460.) The employee’s evidence, however, “remains
subject to careful scrutiny.” (King v. United Parcel Service, Inc. (2007) 152
Cal.App.4th 426, 433 (King).) The employee’s “subjective beliefs in an employment
discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-
serving declarations.” (Ibid.) The employee’s evidence must relate to the motivation of
the decision makers and prove, by nonspeculative evidence, an actual causal link between
prohibited motivation and termination. (Id. at pp. 433–434; Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763, 774.)
                                  Knowledge of Disability
       FEHA provides that it is unlawful for an employer to discharge a person “because
of” a physical disability or medical condition. (Gov. Code, § 12940, subd. (a).) As such,
an employer is not liable for disability discrimination if it had no knowledge of an

                                              9
employee’s alleged disability or perceive the employee as disabled prior to the
termination. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236–237 (Brundage);
Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1046 [no FEHA retaliation claim
without knowledge that the employee engaged in protected conduct]; Trop v. Sony
Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1145 [no FEHA disability
discrimination claim based on pregnancy “in the absence of evidence the employer knew
the employee was pregnant”].)
       Knowledge of the claimed disability also is an element of causes of action for
failure to accommodate and failure to engage in the interactive process. (Arteaga v.
Brink’s, Inc. (2008) 163 Cal.App.4th 327, 349 (Arteaga) [lack of knowledge of disability
defeats failure to accommodate claim]; King, supra, 152 Cal.App.4th at p. 443 [employer
is not liable for failing to accommodate a disability of which it has no knowledge];
Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954 (Prilliman) [“Nor is
an employer ordinarily liable for failing to accommodate a disability of which it had no
knowledge”]; Gov. Code, § 12940, subd. (n) [an employer is required to engage in a
“timely, good faith, interactive process . . . in response to a request for reasonable
accommodation by an employee . . . with a known physical . . . disability or known
medical condition”], italics added.) The employee has the duty to inform the employer of
her disability. (Brundage, supra, 57 Cal.App.4th at p. 237.)
       Here, Envoy presented ample undisputed evidence that it did not know appellant
was disabled at the time it terminated her employment. Valley, who supervised appellant
and was in communication with her during and after appellant’s hospitalization, declared
that she did not perceive appellant as disabled, and did not know the nature or symptoms
of appellant’s illness. There was no evidence that appellant provided any medical
documentation of her hospital stay, medical condition, and/or permanent long-term work
restrictions before being terminated. Other than asking for help in rescheduling some
appointments, and informing Valley of a short home care period, appellant did not

                                              10
communicate to Envoy that her illness impaired her ability to do her job in any way. In
fact, just weeks after her hospitalization, appellant informed Valley of her marketing
efforts and her plans to increase her productivity, thereby giving the impression that she
was not impaired in her ability to do her job. Appellant also stated in her July 28, 2009
email that she was in the process of moving, and mentioned nothing about restricted work
hours or other medically-related work impairment or restriction. Thus, appellant’s
communications with Valley merely provided Envoy with notice of a temporary,
transitory illness that had, at most, a minimal and short-term impact on her ability to
perform her work.
       Appellant asserts that her September 10, 2009 email to Valley in which she
mentioned she had “health issues” and was feeling “emotionally beat up” created a triable
issue of fact regarding Envoy’s knowledge. It is settled, however, that vague statements
regarding an “ ‘unspecified incapacity are not sufficient to put an employer on notice of
its obligations under the’ ” FEHA. (Brundage, supra, 57 Cal.App.4th at p. 237.) In
Brundage, therefore, the employer was not charged with knowledge of a disability where
the employee had a substantial amount of leave for her medical appointments and had
received medical leave for a 14-day drug rehabilitation program, as well as an emergency
vacation leave. (Id. at p. 231.) Although the employee had been diagnosed as a manic
depressive, she had not informed her employer of that fact, and the employer was
therefore deemed to have no knowledge, despite the numerous absences, of the
employee’s mental disability. (Id. at pp. 232–233, 237.) The court in Brundage held:
“While knowledge of the disability can be inferred from the circumstances, knowledge
will only be imputed to the employer when the fact of disability is the only reasonable
interpretation of the known facts.” (Id. at p. 237, italics added.)




                                             11
       Similarly, the mere fact that an employee is ill is insufficient to put the employer
on notice of a disability. “ ‘ “The touchstone of a qualifying [physical] disability is an
actual or perceived physiological disorder which affects a major body system and limits
the individual’s ability to participate in one or more major life activities.” ’ ” (Avila v.
Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248 (Avila).) Thus, knowledge
that an employee has a certain medical condition or has undergone hospitalization is not
sufficient to put the employer on notice that the employee has a disability, that is, that the
medical condition or treatment has impaired the employee’s ability to perform her job
functions. (Id. at p. 1249 [that the employee was hospitalized for three days for a
pancreatic disorder “was not sufficient to put [employer] on notice that [he] was suffering
from a qualifying disability”]; Arteaga, supra, 163 Cal.App.4th at p. 350 [employee’s
complaints of persistent pain and numbness were insufficient to put employer on notice
of a disability because the medical condition “did not affect the achievement of [the
employee’s] job duties”].)
       Accordingly, even though Envoy was aware of appellant’s hospitalization and her
request for some assistance, that evidence was insufficient to put Envoy on notice that
appellant was suffering from a qualified disability. In other words, Envoy’s knowledge
that appellant was ill and had been hospitalized was not the same as knowing she was
disabled. (Avila, supra, 165 Cal.App.4th at p. 1249.) Because the fact of disability was
not “the only reasonable interpretation of the known facts,” Envoy was entitled to
summary judgment on both the disability discrimination cause of action and for its
alleged failure to engage in the interactive process and accommodate her disability.
(Id. at pp. 1248–1249.)7

       7
        Foster v. City of Oakland (N.D.Cal. 2009) 649 F.Supp.2d 1008 (Foster), on
which appellant relies, is distinguishable. In Foster, an employee suffered severe
cognitive and neurological impairments after being attacked at work. (Id. at p. 1012.) He
was initially limited by his doctor to two hours of work per day, and repeatedly informed
his employer that his work assignments were too strenuous given his “concussion-related

                                              12
                                 Reason for Termination
       Summary judgment was proper for the additional reasons that Envoy presented
undisputed evidence of a legitimate reason for terminating appellant, i.e., her low work
performance, and that appellant failed to respond with sufficient evidence of pretext.
Envoy presented evidence that appellant closed only two loans totaling $714,000 during
her entire employment period with Envoy, and that the production was well below what
was expected of a Senior Mortgage Banker with twelve and a half years of experience.
Envoy also presented evidence tending to show that appellant’s termination was not
based on her disability because it also terminated two other, non-disabled employees with
substandard production around the same time it terminated appellant.
       Envoy’s evidence shifted the burden to appellant to present “substantial responsive
evidence” of discrimination, that is, that Envoy’s proffered reason was pretextual.
(Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730–1732.) To
show an employer’s reason for termination is pretextual, an employee “ ‘cannot simply
show that the employer’s decision was wrong or mistaken, since the factual dispute at
issue is whether discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent or competent.’ ” (Hersant v. Dept. of Social Services
(1997) 57 Cal.App.4th 997, 1005.) To meet her burden, the employee “ ‘must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them “unworthy of credence,” ’ ” and hence
infer “ ‘that the employer did not act for [the asserted] non-discriminatory reasons.’ ”


issues.” (Id. at pp. 1012, 1018–1019.) There was a triable issue as to whether the
employer had knowledge of the employee’s disability because the employer knew about
the attack, and the injuries made it obvious that the employee was disabled. (Id. at
p. 1019.) In contrast, here, appellant’s symptoms were far less severe and visible, and
appellant had not informed Envoy that she was suffering any ongoing impairment in her
ability to work as a result of her illness.


                                             13
(Ibid.; King, supra, 152 Cal.App.4th at pp. 433–434 [employee’s evidence must show “an
actual causal link between prohibited motivation and termination”].)
       Envoy’s lack of knowledge that appellant had a disability precludes an inference
of a causal link between a prohibited motivation—disability discrimination—and
appellant’s discharge. In addition to failing to present evidence of knowledge, however,
appellant also failed to present any evidence that her termination was motivated by her
medical condition. On appeal, appellant relies on two pieces of evidence in an effort to
show that Envoy’s stated reason for her termination was pretextual. First, she points to
the March 4, 2009 email from Valley to appellant stating that the contractual loan targets
did not apply in 2009 due to the sluggish economy. However, appellant fails to dispute
not only that she never met the contractual loan targets for any of the six months of her
employment at Envoy, but also that she closed only two loans for the entire duration of
her employment. Based on this evidence, the trial court reasonably inferred that
appellant’s “performance fell below even the lowered standards that Valley initially set
forth.” The March 4, 2009 email therefore did not create a triable issue regarding a
causal link between appellant’s termination and her illness.
       Second, appellant asserts that the fact that Envoy terminated her on September 11,
2009, just one day after she informed Valley that she was still having “health issues,”
shows Envoy had a discriminatory motive. As noted, however, the September 10, 2009
email was insufficient to place Envoy on notice that appellant was claiming to have a
disability. In any event, “temporal proximity alone is not sufficient to raise a triable issue
as to pretext.” (Arteaga, supra, 163 Cal.App.4th at p. 353; King, supra, 152 Cal.App.4th
at p. 436.) “This is especially so where the employer raised questions about the
employee’s performance before he disclosed his symptoms, and the subsequent
termination was based on those performance issues.” (Arteaga, supra, 163 Cal.App.4th
at p. 353.) Thus, even setting aside the fact that the September 10, 2009 was inadequate
to notify Envoy of a disability, the timing of that email and appellant’s termination did

                                             14
not support an inference of pretext, in light of the fact that Valley had warned appellant
on August 4, 2009, that she would be terminated unless she improved her performance
immediately.8
       Appellant also argues that discriminatory animus can be inferred from “Valley’s
disregard for Appellant’s illness” because Valley had an obligation to ascertain whether
appellant’s low productivity was a result of her illness, and she failed to ask more
questions. An employer, however, has no affirmative duty to investigate whether an
employee’s illness might qualify as a disability. “The employee bears the burden of
giving the employer notice of his or her disability.” (Avila, supra, 165 Cal.App.4th at pp.
1248, 1252.)
       Summary judgment was proper in light of the undisputed evidence showing that
an essential element of appellant’s prima facie case—knowledge or perception of a
disability—was lacking, and that her termination was based on legitimate, non-
discriminatory motives—her low production in funding loans.




       8
         Appellant claims on appeal that she never received Valley’s August 4, 2009
warning email because it was sent to a non-working email address. In any event, she
testified at her deposition, however, that she received the email on September 14, 2009.
Valley’s nondiscriminatory motive was evidenced by the fact that she sent the email;
whether appellant received it or not, had no bearing on Valley’s motive, absent evidence
suggesting that Valley intentionally sent the email to a non-working email address.


                                             15
                                   DISPOSITION
     The judgment is affirmed. Respondents shall recover their costs on appeal.
                                            _________________________
                                            McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




                                         16
