Filed 9/18/26 McInerney v. Regents of the Univ. of California CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JOHN MCINERNEY, B339467
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 23STCV16263)
v.
THE REGENTS OF THE
UNIVERSITY OF
CALIFORNIA,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Barbara Ann Meiers, Judge. Affirmed.
Mayall Hurley, Jenny D. Baysinger and Vladimir J. Kozina
for Plaintiff and Appellant.
Horvitz & Levy, Karen M. Bray, Jasjaap S. Sidhu; Sanders
Roberts and Reginald Roberts, Jr., for Defendant and
Respondent.
John “Jack” McInerney (appellant) appeals from a
judgment entered against him on his claims against the Regents
of the University of California through the University of
California at Los Angeles (UCLA) brought pursuant to the
California Fair Employment and Housing Act (FEHA) (Gov.
Code, § 12900 et seq.),1 including discrimination pursuant to
section 12952 (colloquially referred to as the fair chance act or
FCA), retaliation pursuant to section 12940, subdivision (h), and
failure to prevent retaliation pursuant to section 12940,
subdivision (k). The trial court summarily adjudicated
appellant’s claims for retaliation and failure to prevent
retaliation. As to appellant’s claims under the FCA, the trial
court ruled UCLA “properly and lawfully” followed the
requirements of the statute in all ways but one: it failed to give
appellant five business days to submit evidence of rehabilitation
or mitigation regarding his criminal convictions. The question of
whether this violation caused appellant harm was decided by jury
trial. The jury decided against appellant.
Appellant appeals, arguing the trial court erred in
summarily adjudicating appellant’s retaliation and failure to
prevent retaliation claims; preventing the jury from considering
appellant’s substantive claims under the FCA; and requiring
harm beyond the mere denial of the FCA’s statutory five-day
response period.
For the reasons set forth below, we affirm the judgment.
1 All further undesignated statutory references are to the
Government Code.
2
FACTUAL BACKGROUND
I. Appellant’s conviction history
In March 2005, appellant was convicted of misdemeanor
possession of a controlled substance and felony possession of a
controlled substance for sale. In May 2005, appellant was
convicted of felony possession of a controlled substance. In June
2007, appellant was again convicted of felony possession of a
controlled substance for sale. He was sentenced to two years in
prison.
II. Appellant’s conditional job offer
At the age of 65, appellant gained admission to UCLA and
started classes in fall 2020. Appellant lived on campus from fall
2020 through January 30, 2022.
In September 2021, appellant applied for a position as an
office assistant in the Graduate Student Resource Center
(GSRC). The position would “provide administrative,
programmatic and clerical support to the GSRC staff,” “greet and
assist visitors to the GSRC,” “assist with planning program
events and staffing program events,” and “respond[] to inquiries
to department email,” among other responsibilities. Andrew
McClure, who at the time was interim director of the GSRC,
understood the position was a “critical position” that required
candidates to satisfactorily complete UCLA’s background check.
McClure described the position as “a forward-facing position,
serving students, staff, and the community on a regular basis,”
representing “the reputation and integrity of the University.”
Appellant interviewed with McClure on October 1, 2021,
and was extended a conditional offer of employment on October 5,
2021. In his e-mail offering appellant the job, McClure wrote,
3
“This position requires satisfactory completion of a background
check. [Human resources] will schedule you for fingerprinting.”
On October 14, 2021, appellant signed a form authorizing a
background check to determine whether he had a criminal record.
Beginning approximately October 19, 2021, McClure
provisionally placed appellant on the GSRC office assistant
schedule and permitted him to begin “clocking in” part-time.
Over the next six weeks, appellant worked intermittently for a
total of 23.5 hours.
III. Appellant’s temporary removal and inappropriate
communications with UCLA employees
On November 23, 2021, campus human resources informed
McClure that because appellant’s background check was not
complete, he should not be placed on the schedule. On
November 29, 2021, McClure spoke with appellant and told him
“HR” had advised him to not put appellant on the work schedule
again until his background check process cleared. Appellant
immediately became angry and characterized himself as being
“suspended” or “fired” by UCLA. McClure assured appellant he
had received no directive to suspend or fire appellant. McClure
encouraged appellant to remain calm and work through the
process with human resources.
On November 30, 2021, appellant e-mailed McClure with
the subject line, “I need a reason why.” Appellant stated he had
been “up all night thinking about what to do about getting fired
for no reason and decided to go to a lawyer.” Appellant said
McClure had insulted him and caused him harm. He also
referred to human resources as “assholes,” saying, “The HR
assholes better have a good reason why they harmed me.”
4
Although appellant was fingerprinted in late November
2021, due to a backlog at UCLA Police Department after the
COVID-19 pandemic, UCLA did not get the results of appellant’s
background check until January 4, 2022. UCLA then became
aware of appellant’s four convictions.
Sara Haider conducted the assessment of appellant’s
criminal record. She reviewed his job description as well as the
conviction record. In determining that appellant’s prior
convictions were problematic, Haider noted “it’s the fact that he
had contact or would have potential contact with members of the
campus community, including students, and it was a very
forward-facing position.” When later asked whether “the fact
that the conviction was from 14-ish years prior” had any impact
on her assessment, Haider noted she considered the timing of the
convictions but also considered there were multiple convictions.
On January 5, 2022, Haider advised appellant that his
conviction history “may” disqualify him from employment. The
letter stated, “you have five (5) business days from the date of
this notice to provide any supplementary documentation or
information to the findings in the background check report. Your
response may include submission of evidence challenging the
accuracy of the conviction history report and/or evidence of
rehabilitation or mitigating circumstances.” Appellant was
informed that campus human resources would consider any
supplementary documentation and information provided and
then make a final determination as to appellant’s employment
eligibility.
Appellant did not offer any evidence of rehabilitation or
mitigation. Instead, he wrote members of UCLA human
resources e-mails. Specifically, on January 6, 2022, he wrote
5
Debra Sriberg, stating, “No one should be allowed to stop
someone from working especially without giving them a reason,
this is not North Korea.” Appellant demanded “the reason why
you caused me harm” and asked for Sriberg’s supervisor’s contact
information. The same day, he wrote to Haider, asking “if
someone did their time why would you continue to punish them,”
and blaming “[t]he corrupt San Diego cop who arrested me put
me in the motel room, stole my money and put the drugs on me.”
Appellant further berated Haider, “You were wrong to stop me
from working, I am 67 years old and you caused me great harm
by doing so I didn’t sleep for 3 days and it still bothers me that
you abused your power to harm a harmless man. How do people
like you sleep at night? You probably got a promotion.”
The next day, appellant wrote Haider again, stating,
“Here’s the problem that I have with what you did to me, no
person, nowhere, know how, should tell another person they can’t
work for something that happened 14 years ago, that is insane,
you are witch hunters and like the great Inquisition you seek to
destroy lives. If you don’t want to apologize I understand that
because you are part of the structural violence and are haters.”
Appellant also wrote Sriberg on January 7, 2021, saying, “I am
not the criminal here you are the criminal for causing me harm
and then hiding behind Policy 21.”2 Appellant threatened legal
action throughout these communications.
IV. Appellant’s disqualification from the GSRC position
On January 7, 2022, Haider forwarded appellant’s e-mails
and the background check to her supervisor, Anthony Solana.
2 “Policy 21” is UCLA’s policy for reviewing and assessing
background checks, and is the policy Haider utilized when
evaluating appellant’s background check.
6
Haider noted, “I am concerned with clearing him. He was
belligerent and very unprofessional in his emails to me … as well
as with his supervisor and departmental HR (see attached emails
where he calls HR ‘assholes’). I am not sure his response makes
total sense and this is a student-facing position.”
Solana declined to clear appellant for the position. Solana
testified the primary reason for his decision was appellant’s
failure to provide a substantive response to Haider’s letter
requesting evidence of rehabilitation or mitigation.
On January 7, 2022, Haider e-mailed appellant he was
ineligible for the position of GSRC.3
PROCEDURAL HISTORY
I. Appellant’s complaint
Appellant’s operative second amended complaint against
UCLA, filed August 10, 2023, alleged causes of action for age
discrimination, unlawful discrimination in violation of the FCA,
retaliation in violation of section 12940, subdivision (h), and
failure to prevent retaliation.4
Pursuant to his second cause of action for unlawful
discrimination in violation of the FCA, appellant alleged UCLA
relied upon his conviction, solely or in part, to disqualify him
from employment. Appellant alleged that given the nature of his
prior convictions, the length of time that had passed since they
occurred, and the specific job duties of the GSRC position, no
reasonable employer could conclude the conviction history had a
direct and adverse relationship on the job duties, justifying denial
3 Haider described the position as “Office Assistant in
Residential Life.”
4 Appellant later dismissed his claim for age discrimination.
7
of employment. Appellant also alleged UCLA interfered with his
right to respond to the notice of intent to disqualify by failing to
provide him at least five business days to provide additional
information regarding mitigating circumstances.
As to the cause of action for retaliation, appellant alleged
between November 30, 2021, and January 7, 2022, he complained
about unlawful and discriminatory conduct by repeatedly
protesting reliance on his 14-year-old convictions to deny him
employment. Following his complaints, a number of adverse
actions were taken against him. Appellant’s cause of action for
failure to prevent discrimination and retaliation incorporated by
reference his prior allegations and asserted UCLA had failed to
take all steps reasonably necessary to prevent discrimination and
harassment from occurring, as required by section 12940,
subdivision (k).
II. UCLA’s motion for summary judgment/adjudication
UCLA moved for summary judgment, or in the alternative,
summary adjudication, of appellant’s claims. UCLA explained it
was not illegal for UCLA to rely on convictions more than seven
years old to deny employment, and it followed the directives of
the FCA. UCLA further argued appellant could not make a
prima facie showing of the elements of retaliation, pointing out
there was no causal nexus between appellant’s alleged
complaints and the adverse employment action, as Solano had
testified his decision was based on appellant’s conviction history
and his responses to the pre-adverse action letter, which failed to
provide evidence of mitigation or rehabilitation. UCLA argued
appellant could not establish a cause of action for failure to
prevent discrimination or retaliation given his failure to establish
the underlying claims.
8
Appellant opposed UCLA’s motion. As to the FCA cause of
action, appellant argued there were triable issues of fact as to
whether UCLA conducted an individualized assessment and
failed to afford him the required five business days to respond.
He argued his e-mails to UCLA staff constituted protected
complaints under FEHA, he was subjected to an adverse
employment action, and a causal link existed between the two
because there was a close temporal relationship between his
complaints and UCLA’s decision not to hire him. He further
argued UCLA had not established a legitimate, nonretaliatory
reason for not hiring him, so he was not required to present
evidence of pretext.
In its reply brief, UCLA argued appellant had not
established a violation of the FCA. It argued uncontested
evidence was presented that it had carried out an individualized
assessment and permitted appellant five days to provide evidence
of mitigation or rehabilitation, as required. UCLA further
argued appellant’s threatening, profane e-mails were not
protected under FEHA: “[Appellant] claims that his ‘protests’
against UC’s background check process constituted protected
activity yet fails to provide any legal authority suggesting that
objecting to the process, and bullying personnel with slurs and
obscene language, is a protected activity. Behavior that is clearly
inappropriate in the workplace is not ‘protected’ in the pre-
employment period.” UCLA argued, “[appellant] did not
establish that he engaged in protected activity, and UC is
entitled to summary judgment on that basis alone.” UCLA
further explained temporal proximity was insufficient to create
an inference of causation, particularly given the legitimate
reasons UCLA articulated for declining to hire appellant.
9
III. Trial court decision
The trial court granted summary adjudication in favor of
UCLA on appellant’s third cause of action for retaliation and
fourth cause of action for failure to prevent retaliation. The court
found appellant had failed to plead or demonstrate a prima facie
case of retaliation. The court noted appellant had not come
forward with “a complaint about violations of the law.” Instead,
this was a situation where the employer, UCLA, invited the
employee to come forward with any reason he believed UCLA
should not go forward with the refusal to hire. The court found
appellant could not show a nexus under the circumstances. The
court also found there was no evidence whatsoever of
discrimination.
As to appellant’s claims under the FCA, the court found
“the process required under the governing statute and
regulations in order to conduct and complete an ‘individual
assessment’ was properly and lawfully followed by [UCLA] in this
case in every respect” except for its “failure to provide the
required full five days of response time” to UCLA’s pre-adverse
action letter. However, the court found appellant was required to
show “the error made in not giving a full five days resulted in his
not getting the job in question.” The matter proceeded to jury
trial on the questions of whether appellant was prepared to come
forward with additional response information, just what that
information was, and that such information would have been
proffered “but for” the closure of his opportunity to respond.
UCLA would then be required to prove the result would not have
been different even had appellant been given the additional time
to respond.
10
IV. Jury verdict
At trial, appellant argued in his closing statement that
UCLA’s refusal to hire him was based solely on his criminal
convictions, and the concerns about the hostile e-mails and his
failure to provide evidence of rehabilitation were excuses UCLA
came up with after the fact. UCLA argued the decision not to
hire appellant was primarily based on the hostile and
unprofessional e-mails sent by appellant.
The jury returned a special verdict, finding UCLA’s
decision not to hire appellant was not based solely on appellant’s
criminal history and that his criminal history was not a
substantial factor in UCLA’s decision. The jury further found
that, although UCLA failed to prove appellant would not have
submitted evidence of rehabilitation if given the full five days
required under the FCA, UCLA still would have reached the
same decision not to hire him regardless if appellant had
provided evidence of rehabilitation.
The trial court entered judgment for UCLA. Appellant
appealed from the judgment.
DISCUSSION
I. Summary adjudication of appellant’s causes of
action for retaliation and failure to prevent
retaliation
Appellant contends the trial court’s decision to grant
summary adjudication of appellant’s claims of retaliation and
failure to prevent retaliation was error as triable issues of fact
existed.
A. Applicable law and standard of review
When reviewing an appeal from a grant of summary
adjudication, we make “‘an independent assessment of the
11
correctness of the trial court’s ruling, applying the same legal
standard as the trial court.’” (Trop v. Sony Pictures
Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)
The party moving for summary adjudication bears the
initial burden of proving there are no triable issues of fact and it
is entitled to judgment as a matter of law. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) If the moving
party meets that initial burden, the burden shifts to the party
opposing summary judgment to establish that a triable issue of
material fact remains to be determined. (Id. at pp. 850–851.)
The burden of establishing a triable issue of fact must be met by
means of competent, admissible evidence. (Brown v. Ransweiler
(2009) 171 Cal.App.4th 516, 525.) It is not created by
speculation, conjecture, conclusory assertions or possibilities.
(Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190,
196.)
We may affirm a decision granting summary adjudication
on any legal theory, regardless of whether that theory was
adopted by the trial court. We are not bound by the trial court’s
rationale. (Wills v. Superior Court (2011) 195 Cal.App.4th 143,
161 (Wills).)
B. Retaliation
1. Retaliation under FEHA
To make a retaliation claim under FEHA, a plaintiff must
show that (1) he engaged in activity protected by FEHA; (2) he
was subjected to an adverse employment action; and (3) a causal
link exists between the activity and the adverse action.
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042
(Yanowitz).)
12
On summary judgment, the employer bears the initial
burden to either (1) negate an element of the employee’s prima
facie case or (2) articulate a legitimate, nondiscriminatory and
nonretaliatory reason for the adverse employment action. (Wills,
supra, 195 Cal.App.4th at p. 160.)
Once the employer does either of the above, the employee
seeking to avoid summary judgment must present evidence that
the employer’s evidence was insufficient or “‘a discriminatory
reason more likely motivated the employer or that the employer’s
explanation is unworthy of credence.’” (King v. United Parcel
Service, Inc. (2007) 152 Cal.App.4th 426, 433.)
2. UCLA met its burden of showing appellant
could not show protected activity to establish a
prima facie case of retaliation
Appellant’s first step in setting forth a prima facie case for
retaliation was showing he engaged in protected activity.
Appellant failed to meet this burden.5
5 Appellant objects to both the trial court and this court
deciding appellant’s retaliation claim based on his failure to
establish the first element—opposition to unlawful activity.
Appellant claims although the trial court found appellant did not
engage in opposition to unlawful conduct, this issue was not
briefed in UCLA’s summary judgment motion. However, UCLA
did argue that appellant failed to engage in protected activity,
stating in its reply brief, “[appellant] did not establish that he
engaged in protected activity, and UC is entitled to summary
judgment on that basis alone.” We further note that within the
trial court’s order, the court invited appellant to file a motion for
reconsideration to correct any errors. While the statement was
made in the context of summary judgment on appellant’s
discrimination claim, there is no evidence appellant filed any
objection to the basis of the trial court’s order on retaliation.
13
“‘For protection under the “opposition clause,” an employee
must have opposed an employment practice made unlawful by
the statute.’” (Dinslage v. City and County of San Francisco
(2016) 5 Cal.App.5th 368, 381 (Dinslage).) An employee’s conduct
may constitute protected activity “‘when the employee opposes
conduct that the employee reasonably and in good faith believes
to be discriminatory, whether or not the challenged conduct is
ultimately found to violate the FEHA.’” (Ibid.) A mistake of
either fact or law may establish an employee’s good faith belief
that he or she was opposing conduct prohibited by FEHA.
(Dinslage, at p. 381.) In such cases, “the question is the
reasonableness of the employee’s belief that he was opposing a
practice prohibited by the FEHA.” (Ibid.)
Appellant alleged he engaged in protected activity when
“he voiced his contention that relying on his 14-year-old
conviction was improper and sought assistance from legal counsel
and the DFEH.” Nothing in the FEHA prohibits an employer
from relying on a 14-year-old conviction in determining an
employee is ineligible for a position. In fact, the FCA permits a
criminal background check, as long as it is conducted according to
the process set forth in section 12952, subdivision (a). (§ 12952,
subd. (b) [“This section shall not be construed to prevent an
Under the circumstances, we find appellant has forfeited any
claim that the first element of retaliation was not at issue below.
Regardless, as set forth above, we may affirm the trial court’s
decision on any legal theory. (Wills, supra, 195 Cal.App.4th at
p. 161.)
14
employer from conducting a conviction history background check
not in conflict with the provisions of subdivision (a).”].)6
Nor do appellant’s communications with UCLA
demonstrate an objectively reasonable belief that UCLA was
engaging in unlawful activity. Appellant’s first communication
was an e-mail to McClure following McClure’s act of informing
appellant he could not be put on the work schedule until his
background check was complete. Appellant’s e-mail to McClure
was captioned, “I need a reason why.” In it, he expressed his
belief he was being fired “for no reason.” Appellant stated there
was “absolutely no cause [for you] to have done this,” “this abuse
has to stop,” and “the HR assholes better have a good reason why
they harmed me.” Appellant’s e-mail does not mention the
background check, nor does it suggest UCLA was engaging in any
conduct that violated the FCA. Even if appellant’s e-mail had
mentioned the background check, no reasonable person could
believe UCLA was violating the law by conducting a background
check on a provisional employee.
In his first communication to Sriberg on January 6, 2022,
appellant again protested his suspension from work, stating he
was “never told … the reason why.” Appellant reiterated, “No
one should be allowed to stop someone from working especially
without giving them a reason, this is not North Korea.”
Appellant sought the reason he had been suspended and said, “I
want to see the rules that say that you can suspend someone
from working without telling them why and then I will seek legal
advice.” Again, nothing in this communication constituted
6 We discuss the procedural requirements of the FCA in
further detail in part II, post.
15
opposition to an unlawful employment practice. Nothing in
FEHA forbids an employer from deciding not to hire an employee
without expressing a reason. Appellant did not mention his
criminal history nor object to the background check. Even if he
had, UCLA’s decision to not put appellant on the work schedule
until his background check had been completed was legal.
After Sriberg informed appellant of the background check,
appellant responded with an e-mail stating he did “not agree that
if someone did their time why would you continue to punish
them” and that “the corrupt San Diego cop who arrested me put
me in the motel room, stole my money and put the drugs on me.”
Appellant continued, “You were wrong to stop me from working, I
am 67 years old and you caused me great harm by doing so I
didn’t sleep for 3 days and it still bothers me that you abused
your power to harm a harmless man. How do people like you
sleep at night? You probably got a promotion.” Appellant’s
e-mail expresses disagreement in general with using an
individual’s conviction history to prevent him from working.
However, disqualifying an individual from employment based on
his conviction history is not illegal, nor could a reasonable
individual believe it to be so. The FCA expressly permits a
background check after a conditional offer of employment.
Appellant’s communication made no reference to UCLA’s
background check process, nor did it suggest UCLA’s procedure
violated the FCA.
Thereafter appellant requested a copy of UCLA’s “Policy
21” from Sriberg, stating, “[a]ll I wanted was an apology for all
the depression, stress and anxiety you gave me and continue to
give me. I am not the criminal here you are the criminal for
causing me harm and then hiding behind Policy 21.” Again,
16
appellant’s communication makes no objection to a purportedly
discriminatory act. Appellant makes no claim that UCLA’s
Policy 21 is discriminatory, otherwise illegal or fails to comply
with the FCA.
Later the same day, appellant continued e-mailing Sriberg
with an angry tone, stating, “Here’s the problem that I have with
what you did to me, no person, nowhere, know how, should tell
another person they can’t work for something that happened 14
years ago, that is insane, you are witch hunters and like the
great Inquisition you seek to destroy lives. If you don’t want to
apologize I understand that because you are part of the
structural violence and are haters. So it is up to me now to
change the policy and that’s all I want to do, stop this from
happening to anyone else again.” As set forth above, it is not
illegal to use an individual’s conviction history to deny him
employment, regardless of how many years earlier the conviction
occurred. Appellant does not claim UCLA’s policy regarding
background checks was illegal. His desire to change UCLA’s
policy does not suggest a reasonable belief that UCLA’s policy
was illegal—on the contrary, it suggests appellant wanted to
change existing law.
Appellant’s subjective perception that UCLA’s action was
discriminatory will not prevail on a claim under FEHA; his claim
may only succeed if “‘a reasonable person …, considering all the
circumstances, would … share the same perception.’” (Hughes v.
Pair (2009) 46 Cal.4th 1035, 1044.) Appellant has failed to meet
this standard. Thus, appellant’s claim fails on the first element,
as he has not produced evidence that he engaged in an activity
protected by FEHA.
17
We note that decisions implementing former title VII of the
Civil Rights Act of 1964 (Title VII) (42 U.S.C.S. § 2000e et seq.)
suggest appellant fails to meet the first element of his retaliation
claim for a second, independent reason.7 “Certain conduct for
example, illegal acts of opposition or unreasonably hostile or
aggressive conduct may provide a legitimate, independent, and
nondiscriminatory basis for an employee’s discharge.” (Payne v.
McLemore’s Wholesale & Retail Stores (5th Cir. 1981) 654 F.2d
1130, 1142; see also Hochstadt v. Worcester Foundation for
Experimental Biology (1st Cir. 1976) 545 F.2d 222, 230
[employee’s discharge justified where her oppositional behavior
“went beyond the pale of reasonable opposition activity”].)
Appellant’s hostile communications with UCLA staff went
beyond reasonable opposition activity. Appellant engaged in
inappropriate correspondence with UCLA staff during his
purported oppositional activity, berating and demeaning his
potential future colleagues.8 These communications were not
7 When interpreting FEHA, California courts frequently look
to federal case law interpreting Title VII. (See Miller v.
Department of Corrections (2005) 36 Cal.4th 446, 463.)
8 Appellant argues the question of whether appellant’s
e-mails went “too far” is a fact question for the jury. However,
the elements of a FEHA claim may be decided as a matter of law
where no objective, reasonable person could disagree. (See, e.g.,
Hughes v. Pair, supra, 46 Cal.4th at pp. 1048–1049 [defendant’s
sexually harassing conduct was not pervasive or severe as a
matter of law]; Holmes v. Petrovich Development Co., LLC (2011)
191 Cal.App.4th 1047, 1060 [no reasonable jury could objectively
find hostile work environment for a reasonable pregnant
woman].) Such is the case here.
18
protected under FEHA, and constituted legitimate,
nondiscriminatory reasons for UCLA’s failure to hire appellant.
3. Appellant’s arguments regarding the first
element of retaliation are unpersuasive
Appellant argues a reasonable factfinder could conclude
appellant’s communications conveyed appellant’s opposition to
conduct he reasonably believed constituted unlawful use or
consideration of his criminal history. Appellant asserts the
reasonableness of his belief is a quintessential fact question that
is generally not subject to summary adjudication. In support of
this argument, appellant cites Terry v. Atlantic Richfield Co.
(1977) 72 Cal.App.3d 962, 966 (Terry). In Terry, while discussing
fair and reasonable allocation under certain contracts, the court
noted, “Except where there is no room for a reasonable difference
of opinion, the reasonableness of an act or omission is a question
of fact, that is, an issue which should be decided by a jury and not
on a summary judgment motion.” (Ibid.) Appellant contends a
jury could conclude appellant’s belief he was being treated
unlawfully was reasonable.
As the Terry court noted, an employee’s reasonable and
good faith belief as to whether an act is discriminatory may be
decided as a matter of law when there is no room for a reasonable
difference of opinion. (See, e.g., Dinslage, supra, 5 Cal.App.5th at
pp. 382–384.) In Dinslage, the court explained, “To meet his
burden on this issue, ‘[a] plaintiff must not only show that he
subjectively (that is, in good faith) believed that his employer was
engaged in unlawful employment practices, but also that his
belief was objectively reasonable in light of the facts and record
presented.’” (Id. at pp. 381–382.) “The objective reasonableness
of an employee’s belief that his employer has engaged in a
19
prohibited employment practice ‘must be measured against
existing substantive law.’” (Id. at p. 382.) As to the employee in
Dinslage, the court concluded, “none of these [allegedly protected]
activities are protected for the purposes of the FEHA’s
antiretaliation provision, because none of them express
opposition to practices one could reasonably believe are unlawful
under the FEHA.” (Ibid.)
Similarly, appellant did not express opposition to practices
one could reasonably believe are unlawful under FEHA. FEHA
does not prohibit criminal background checks—in fact, FEHA
expressly permits them, as long as they are done in conformance
with the procedure set forth in the statute. (§ 12952, subd. (b).)
Nor does FEHA prevent an entity from determining that an
applicant’s conviction history disqualifies him from a position. At
no time did appellant complain that UCLA failed to comply with
the process set forth in the FCA. In short, his actions were not
protected.9
9 Appellant also argues the statements in his e-mails to
UCLA that he was pursuing legal action were protected under
FEHA. However, there is no evidence UCLA considered
appellant’s threats of legal action when making the decision to
not hire him. On the contrary, UCLA’s communications showed
they supported appellant’s decision to consult with outside
sources. For example, when appellant e-mailed Haider stating he
had “talked with legal aid already,” Haider responded appellant
was “free to seek outside resources as needed.” In her deposition
Sriberg also testified she did not consider it unprofessional for
appellant to consider legal action. There is no evidentiary basis
for appellant’s suggestion that UCLA’s failure to hire him
resulted from his threats of legal action.
20
Appellant also argues the fact that his e-mails were
perceived as aggressive in tone and arguably used disparaging
language does not alter their protected status. Appellant cites
Caterpillar Tractor Co. v. National Labor Relations Bd. (9th Cir.
1981) 638 F.2d 140, 141–142, where a chief union steward was
authorized under a collective bargaining agreement to write up
employee grievances. When the steward set out to write an
employee’s grievance, a supervisor prevented him from using the
indoor area normally used and forced them to do the work
outside. Other evidence the supervisor was trying to interfere
with the grievance process existed. This provided substantial
evidence the employer had violated the National Labor Relations
Act (29 U.S.C.S. § 151 et seq.). The court noted, “In light of the
above, the fact that [the union steward] reacted to [the
supervisor’s] action with an outburst of profanity does not
provide good cause for his suspension. Although such conduct
cannot be condoned, the Board reasonably found here it was a
response to [the supervisor’s] interference with protected
activity.” (Caterpillar, at pp. 141–142.)
Appellant cites a second case involving the National Labor
Relations Board (NLRB), King Soopers, Inc. v. National Labor
Relations Bd. (D.C. Cir. 2017) 859 F.3d 23, 35–36 (King Soopers).)
In King Soopers, an employee complained about violations of her
collective bargaining agreement. In a meeting with a supervisor
to discuss her complaints, both parties became agitated. (Id. at
p. 28.) The employee was then terminated in connection with her
“‘gross misconduct’” during the meeting. (Ibid.) The board found
the employee’s conduct during the meeting did not cause her to
lose protection from the National Labor Relations Act. (King
Soopers, at p. 28.) In affirming the board’s decision, the D.C.
21
Circuit cited an NLRB opinion holding that “[w]hile employees
may be punished for insubordination, they cannot be lawfully
punished for misconduct that is intertwined with protected
activity unless that behavior is so ‘opprobrious’ as to ‘lose the
protection of the Act.’” (Id. at p. 35.)
These cases in the NLRB context do not convince us that
appellant’s actions were protected in this case. The cases cited
above involving Title VII are more persuasive. (See Payne v.
McLemore’s Wholesale & Retail Stores, supra, 654 F.2d at
p. 1142; Hochstadt v. Worcester Foundation for Experimental
Biology, supra, 545 F.2d at p. 230.) Those cases agree
unreasonably hostile or aggressive conduct, such as that
exhibited by appellant, falls outside of the protection of FEHA.
4. Lack of causal connection
Although appellant’s retaliation claim fails on the first
element, we note this claim also fails on the third element,
causation. To prove retaliation, appellant must show not only a
protected act and an adverse employment action, but also a
causal link between the protected activity and the adverse action.
(Yanowitz, supra, 36 Cal.4th at p. 1042.) To show such a causal
link, appellant had to show that retaliatory animus was “a
substantial or motivating factor in the adverse employment
decision.” (George v. California Unemployment Ins. Appeals Bd.
(2009) 179 Cal.App.4th 1475, 1492.) Thus, even if appellant had
engaged in protected activity by protesting the reliance on his
conviction history to deny him employment, he was also required
to show a causal connection between the purported protected
activity and UCLA’s decision to not hire him.
UCLA submitted evidence explaining the decision to not
hire appellant for the position was based on his failure to provide
22
a substantive response to the pre-adverse action letter as well as
his unprofessional conduct following his suspension from work.
When asked the reason she decided to disqualify appellant from
the position, Haider responded, “First of all, he didn’t provide any
response to the pre-adverse, so he really didn’t provide anything
for me to review.” Haider also stated, “his conduct during the
pre-adverse review process was alarming and, you know, part of
what I … considered.” Solana, when asked what factored into his
decision, responded he had reviewed the e-mail chain Haider
forwarded him and noted appellant’s lack of a substantive
response to the request for mitigating information. In the
absence of evidence to the contrary, appellant fails to create a
triable issue of material fact as to the reason for his
disqualification.10
In response to this evidence, appellant argues the prima
facie causation element may be satisfied solely through
demonstration of a relatively close temporal connection between
the protected activity and the adverse action. (Citing Flait v.
North American Watch Corp. (1992) 3 Cal.App.4th 467, 478.)
Appellant argues each of the adverse employment actions took
place close to the time he expressed concerns about UCLA using
his conviction history against him.
Appellant is correct that in some cases, timing alone may
be sufficient to draw a causal link between protected activity and
10 In his testimony appellant claims UCLA employees
admitted appellant’s oppositional e-mails influenced the ultimate
disqualification decision. However, it was not appellant’s
complaints themselves, nor the threat of legal action, that
contributed to UCLA’s decision. Instead, as Haider stated, it was
his “alarming” tone and unprofessionalism.
23
adverse employment action. (Wawrzenski v. United Airlines, Inc.
(2024) 106 Cal.App.5th 663, 702.) However, temporal proximity
alone may be considered insufficient to raise a triable issue of fact
as to causation where the employer has raised a legitimate,
nonretaliatory reason for the adverse employment action.
(Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 354.)
“‘Standing alone against [UCLA’s] strongly supported legitimate
reason for terminating [appellant], temporal proximity does not
amount to more than a scintilla of evidence of [retaliation].’” (Id.
at p. 353.) Here, UCLA provided uncontested evidence that
appellant’s disqualification was based on his unprofessional
e-mails and his failure to provide evidence of mitigation or
rehabilitation.
Thus, even if appellant had carried out a protected act
under FEHA—which he did not—his claims would fail due to
UCLA’s strongly supported legitimate reason for his
disqualification.11
11 Appellant asserts it is improper to discuss the issue of
whether UCLA articulated a legitimate, nonretaliatory reason for
the adverse action because in their summary judgment motion
UCLA challenged only appellant’s prima facie case and did not
seek summary adjudication on the ground that UCLA was able to
articulate a legitimate, nonretaliatory reason for appellant’s
disqualification. However, UCLA did argue there was no causal
nexus between appellant’s alleged complaints and the adverse
employment action, as Solano had testified his decision was
based on appellant’s conviction history and his responses to the
pre-adverse action letter, which failed to provide evidence of
mitigation or rehabilitation. In its reply brief, UCLA further
explained temporal proximity was insufficient to create an
inference of causation, particularly given the legitimate reasons
UCLA articulated for declining to hire appellant. Under the
24
C. Failure to prevent retaliation
Because appellant failed to set forth a viable claim for
retaliation, his claim for failure to prevent retaliation must also
fail. (Miller v. Department of Corrections & Rehabilitation (2024)
105 Cal.App.5th 261, 284–285 [employers cannot be held liable
for failing to take action to prevent discrimination if there is no
actionable discrimination in the first place].) The trial court
properly granted summary adjudication on appellant’s failure to
prevent retaliation cause of action.
II. Violation of the FCA
Appellant makes two arguments of error concerning the
trial court’s handling of his claim for violation of the FCA. First,
he claims it was error for the trial court to preclude the jury from
considering his claim that UCLA failed to properly conduct the
required individualized assessment. Next, he claims the trial
court erred in requiring harm beyond the denial of the full five-
day response period.
We discuss each claim separately below and find no
reversible error.
A. The FCA
The Legislature enacted the FCA in 2017. (Stats. 2017, ch.
789, § 2.) The Legislature was concerned with the stigma
associated with the disclosure of criminal records, which “can
automatically disqualify applicants from the job without notice
from the employer or explanation from the applicant.” (Sen.
Com. on Labor and Industrial Relations, Analysis of Assem. Bill
No. 1008 (2017–2018 Reg. Sess.) June 20, 2017, p. 4.) The statute
was designed to “give applicants with a criminal record the
circumstances, we reject appellant’s position that UCLA should
not be permitted to address this issue on appeal.
25
opportunity to be judged on their qualifications.” (Ibid.) The law
incorporates “certain procedural safeguards in the hiring process
intended to focus the employer on the true merits of the
candidate for the job, rather than on any criminal history the
candidate may possess.” (Sen. Com. on Judiciary, Analysis of
Assem. Bill No. 1008 (2017–2018 Reg. Sess.) June 20, 2017, p. 2.)
Those procedural safeguards are as follows.
First, the employer cannot ask about an applicant’s
conviction history, or consider an applicant’s conviction history,
until after the employer has made a conditional offer of
employment to the applicant. (§ 12952, subd. (a)(1) & (2).)
However, the statute makes clear it is not to be construed to
prevent an employer from conducting a conviction history
background check, as long as the employer’s actions do not
conflict with subdivision (a). (§ 12952, subd. (b).)
If an employer conducting a background check identifies a
conviction, the employer must then “make an individualized
assessment of whether the applicant’s conviction history has a
direct and adverse relationship with the specific duties of the job
that justify denying the applicant the position.” (§ 12952, subd.
(c)(1)(A).) In making that assessment, the employer must
consider (1) the “nature and gravity of the offense or conduct,” (2)
the “time that has passed since the offense or conduct and
completion of the sentence,” and (3) the “nature of the job”
sought. (§ 12952, subd. (c)(1)(A).) However, the employer “is not
required to … commit the results of this individualized
assessment to writing.” (§ 12952, subd. (c)(1)(B).)
If, because of the individualized assessment, the employer
is considering disqualifying the applicant based on his criminal
record, the employer must notify the applicant. (§ 12952, subd.
26
(c)(2).) But the employer need not “justify or explain” its
reasoning. (§ 12952, subd. (c)(2).) The notification must include
notice of the disqualifying conviction or convictions that are the
basis of the preliminary decision to rescind the offer. (§ 12952,
subd. (c)(2)(A).) The notice must also explain the applicant’s
right to respond to the notice of the employer’s preliminary
decision before that decision becomes final and the deadline by
which to respond. The explanation must inform the applicant
that the applicant’s response may include “submission of
evidence challenging the accuracy of the conviction history report
that is the basis for rescinding the offer, evidence of
rehabilitation or mitigating circumstances, or both.” (§ 12952,
subd. (c)(2)(C).) The applicant “shall have at least five business
days to respond to the notice provided to the applicant … before
the employer may make a final decision.” (§ 12952, subd. (c)(3).)
Before making a final decision, the employer “shall consider
information submitted by the applicant” responding to the
employer’s notice. (§ 12952, subd. (c)(4).) If the employer makes
a final decision to deny an application solely or in part because of
the applicant’s conviction history, the employer must notify the
applicant in writing of the final decision. The employer is not
required to justify or explain the final denial or disqualification.
(§ 12952, subd. (c)(5)(A).)
B. Failure to properly conduct individualized
assessment
The trial court concluded there was no triable issue of
material fact as to whether UCLA followed the procedure set
forth in section 12952, subdivision (c)(1)(A), which requires an
employer to make an “individualized assessment” of whether the
applicant’s conviction history has a direct and adverse
27
relationship with the specific duties of the job that justify
denying the applicant the position. Appellant disagrees, arguing
evidence in the record supports a reasonable inference that
UCLA did not conduct the required individualized assessment.
1. Standard of review
The trial court summarily adjudicated appellant’s claim
that UCLA failed to conduct an adequate individualized
assessment under the FCA. In reviewing the trial court’s
summary adjudication of this claim, we undertake a de novo
review. (Panagotacos v. Bank of America (1998) 60 Cal.App.4th
851, 855.) Summary adjudication is appropriate when there are
no triable issues of fact and the moving party is entitled to
judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at
p. 850.) The party opposing summary adjudication must provide
substantial evidence to create a conflict of evidence. While we
must give appellant’s evidence all the value to which it is legally
entitled, “[a] mere ‘scintilla of evidence’ does not create a conflict
for the jury’s resolution.” (Nally v. Grace Community Church
(1988) 47 Cal.3d 278, 291.) “There is a genuine issue of material
fact if, and only if, the evidence would allow a reasonable trier of
fact to find the underlying fact in favor of the party opposing the
motion ….” (Aguilar, supra, at p. 845.)12
12 Appellant claims the trial court’s summary disposition of
his claim concerning the individualized assessment under the
FCA was akin to a demurrer or nonsuit. (Citing Wang v. Peletta
(2025) 112 Cal.App.5th 478, 486.) Either way the standard of
review is the same: we must view the record in the light most
favorable to appellant and indulge every legitimate inference in
favor of appellant, affirming only if there is no substantial
evidence in the record to support a judgment in appellant’s favor.
28
2. UCLA’s evidence that the individualized
assessment was properly conducted
In support of its motion for summary adjudication on this
issue, UCLA provided deposition testimony and documentary
evidence. Haider testified in performing an individualized
assessment, she followed the university policy outlined UCLA’s
Policy 21. That policy identifies the same three factors the FCA
requires an employer to consider: the nature and gravity of the
offenses; the length of time that has passed since the offenses;
and the nature of the job. Solana, the director of Haider’s
department, identified the same process.
Haider also provided detailed testimony describing her
performance of the individualized assessment regarding
appellant. She testified she first reviewed the job description as
well as appellant’s criminal history. Haider noted appellant was
no longer on probation or parole relating to his prior convictions.
In reviewing the job description, Haider noted that if hired,
appellant “would have … contact with members of the campus
community, including students, and it was a very forward-facing
position.” Haider understood that appellant’s convictions
involved controlled substances and felt the interaction with
students could be potentially problematic if there was a risk of
appellant’s involvement with controlled substances. While
Haider considered the convictions were from approximately 14
years prior, that did not alleviate her concerns about the multiple
convictions on his record.
(Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15,
28.)
29
Solana also elaborated on the criteria UCLA considered
when reviewing background checks, noting “student-facing”
positions are designated as “critical,” and UCLA does everything
it can to prevent students from being exposed to drugs. Solana
also undertook an individualized assessment of appellant’s
criminal background, concluding appellant was not qualified
because it was “a student-facing role” and “there were convictions
regarding substance abuse and sales.” Solana emphasized the
conviction history alone was not the primary reason for
appellant’s disqualification—it was appellant’s failure to
substantively respond with information suggesting appellant had
rehabilitated and reformed his life.
UCLA also provided e-mails that corroborated Haider’s
testimony she performed the individualized assessment. On
January 6, 2022, Haider sent appellant an e-mail that described
the process. She wrote: “UCLA’s background check process
includes review of all conviction history of a candidate. If the
background check contains a criminal conviction or other
potentially disqualifying information, an individualized
assessment is conducted looking at several factors and the
candidate is afforded an opportunity to respond. A criminal
conviction will not automatically disqualify a candidate from
employment.” Haider described this as the “standard process.”
Haider’s e-mail to Solana, forwarding appellant’s
background check and e-mail correspondence, expressed Haider’s
concern that the job was a “student-facing position,” suggesting
she had already performed the individualized assessment.
30
3. Appellant’s arguments that a triable issue of
fact exists
Appellant argues the evidence supports a reasonable
inference that Haider did not conduct a proper individualized
assessment before making the preliminary decision that
appellant’s conviction history disqualified him from the job. In
particular, appellant argues, the evidence supports a reasonable
inference that Haider did not review the specific nature of the job
or speak with appellant’s direct supervisor before issuing the pre-
adverse letter on January 5, 2022. As support for this argument,
appellant points to an e-mail Haider sent to Sriberg on
January 6, 2022, stating, “Hi Deb—Can you send me the JD for
[appellant’s] position?” On January 7, 2022, at approximately
11:06 a.m., McClure forwarded to Haider the job description.
Subsequent e-mails between Haider and Sriberg, all taking place
before noon on January 7, 2022, involved Haider asking Sriberg if
it was a “CX” position and Sriberg responding the position was
designated “Student 1.”13 The letter informing appellant he was
deemed unqualified for the job was sent to appellant by e-mail on
January 7, 2022, at 12:38 p.m.
This evidence does not conflict with Haider’s testimony that
she performed the required individualized assessment. Appellant
points to no requirements that the person conducting the
individualized assessment must examine a formal written job
description nor that such person must speak with the prospective
employee’s supervisor. Appellant does not contest the key
component of the job that was most problematic, given his
13 These questions had to do with whether or not the job was
unionized.
31
conviction history—the fact that it was a position that involved
interaction with students. Appellant points to no evidence that
Haider was unaware of the general job description and that the
job involved student interaction. The e-mails above do not create
a triable issue of material fact as to whether Haider adequately
performed the individualized assessment.
Appellant next points to a form used by UCLA when
conducting a background check. Appellant points out the form,
dated January 5, 2022, was incomplete. Appellant also argues
the form initiated for appellant erroneously described the GSRC
position as being in the “Residential Life” department. Appellant
claims this is a miscategorization of the job. Thus, according to
appellant, the individual who allegedly conducted the
individualized assessment was not even aware of the department
appellant was applying for—leading to a reasonable inference
that actual consideration of the nature of the job “simply did not
happen.”
Again, the form does not provide evidence that the
individualized assessment was not carried out. The form is a
memorandum, from Haider to Solana. It lists
“applicant/employee” information, and “background check
results.” (Capitalization omitted.) Subsequent sections of the
memorandum, including those labeled “applicant/employee
communication,” “employee relations consultant proposal,”
“director, employee, & labor relations review,” and “signatures,”
are blank. (Capitalization omitted.) Haider testified the form is
generated every time a pre-adverse letter is sent out. There is no
evidence Haider or anyone else relied on the information in this
form when making the individualized assessment. The form is
incomplete, and there is no requirement the individualized
32
assessment be memorialized in writing or formalized in a
memorandum. Again, appellant does not dispute the GSRC job
involved student contact, which was the main attribute of the job
that caused Haider concern. Thus, the incomplete form does not
undermine Haider’s testimony and the other evidence that the
individualized assessment was properly carried out.
Appellant further argues the form suggests no
individualized assessment was carried out because the form
shows appellant’s conviction history implicated a specific
category of crimes identified by UCLA as justifying a decision not
to hire.14 This is complete speculation and is undermined by the
evidence, including testimony of both Haider and Solana that
they had cleared individuals with criminal backgrounds in the
past. Haider testified she had both “cleared [them] without a
pre-adverse, or we’ve provided the pre-adverse and given them a
chance to respond and then cleared them.” Solana testified the
convictions did not automatically disqualify appellant from the
14 The form allows the person completing it to check a box
indicating the type of crime in the candidate’s background in the
event of a decision not to hire the candidate. The individual may
either check “Yes—proceed to hire applicant” or “No—do not
proceed to hire applicant (check reason below).” The categories
listed are “Violent crime,” “Sexual crime,” “Crime involving
child[ren],” “Drug-related crime,” “Theft,” and “Driving Essential
Function.” This section of the form generated during appellant’s
individualized assessment is blank. Nothing in the form suggests
an applicant must be disqualified for the listed categories.
33
job, explaining, “It’s not that the convictions themselves barred
him from the position. It was just the lack of a response.”15
Appellant’s speculation that the categories listed on the
form constituted blanket classifications of crimes justifying a
decision not to hire does not create a triable issue of fact as to
UCLA’s completion of the individualized assessment process in
this matter.
Appellant has not set forth evidence creating a triable issue
of fact as to whether UCLA performed a proper individualized
assessment. A triable issue of fact “is not created by ‘speculation,
conjecture, imagination or guess work.’” (Sinai Memorial Chapel
v. Dudler, supra, 231 Cal.App.3d 190, 196.) Nor is it raised by
conclusory assertions or mere possibilities. (Ibid.) The evidence
in the record referenced by appellant is insufficiently substantial
to allow a reasonable trier of fact to find the underlying fact his
favor. (Aguilar, supra, 25 Cal.4th at p. 845.) We therefore affirm
the trial court’s summary adjudication of the individualized
assessment issue in UCLA’s favor.16
15 Solana was also asked, “So [appellant] could presumably
apply to other positions and be considered despite what was in
his background check, right?” Solana responded, “Absolutely.”
16 We also note the jury made a factual determination that
appellant’s criminal history was not a substantial factor in
UCLA’s decision to disqualify appellant from the GSRC position.
Thus, even if UCLA failed to properly conduct the individualized
assessment—as it failed to allow the full five-day response
period—any such failure would require an analysis of whether it
caused harm to appellant. (See part II.D., below.) Given the
jury’s finding that appellant’s criminal history was not a
substantial factor in UCLA’s decision, UCLA’s purported
34
C. Results of UCLA’s individualized assessment
Appellant also takes issue with the outcome of UCLA’s
individualized assessment, arguing “there simply is no ‘direct and
adverse’ relationship between [appellant’s] previous drug-related
convictions from more than fourteen years prior and the specific
job duties of a GSRC Office Assistant.”
The trial court determined it was not a court’s place to
evaluate the outcome of UCLA’s assessment, stating “all that the
employer is required to do is to conduct its assessment in the
manner called for by Code. Once it has done that, the employer’s
judgment is not to be reevaluated or second-guessed by the
applicant or a Court in terms of whether it was a good or fair
decision or not.” Appellant disagrees, arguing in the absence of a
sufficient nexus, a preliminary disqualification determination is
unjustified and thus unlawful under the FCA.
In support of his argument, appellant cites two provisions
of the FCA. First, section 12952, subdivision (a)(4), makes it
unlawful to “interfere with, restrain, or deny the exercise of, or
the attempt to exercise, any right provided under this section.”
In addition, section 12952, subdivision (c)(5) provides, “If an
employer makes a final decision to deny an application solely or
in part because of the applicant’s conviction history, the employer
shall notify the applicant in writing of all the following: [¶] (A)
The final denial or disqualification. The employer may, but is not
required to, justify or explain the employer’s reasoning for
making the final denial or disqualification. [¶] (B) Any existing
procedure the employer has for the applicant to challenge the
improper individualized assessment could not have led to any
harm to appellant.
35
decision or request reconsideration. [¶] (C) The right to file a
complaint with the [civil rights] department.”
We review the statute de novo. (Kavanaugh v. West
Sonoma County Union High School Dist. (2003) 29 Cal.4th 911,
916.) We conclude the cited provisions, and the statute as a
whole, do not permit a court or jury to second-guess an
employer’s individualized assessment. Instead, the statute
requires certain procedures that must be followed before denying
employment to an individual based on his conviction record. The
statute makes it unlawful for an employer to fail to follow those
procedures and permits an individual who is denied employment
because of his conviction history to file a complaint if he believes
the employer has interfered with any right provided under the
section. It does not require an employer to hire an individual
with a criminal background in the event there is no direct and
adverse relationship between the job and the conviction. Instead,
it imposes a procedural requirement that the employer make an
individualized assessment of whether such a direct and adverse
relationship exists. (§ 12952, subd. (c)(1)(A).)17
17 As UCLA points out, other states have passed laws that
expressly prohibit denying employment unless there is a
relationship between the job and the conviction. For example, in
New York, “[n]o application for any license or employment …
shall be denied or acted upon adversely by reason of the
individual’s having been previously convicted of one or more
criminal offenses … unless: [¶] (1) there is a direct relationship
between one or more of the previous criminal offenses and the
specific license or employment sought ….” (N.Y. Correc. Law,
§ 752.) Similarly, in Minnesota, “no person shall be disqualified
from public employment … solely or in part because of a prior
conviction …, unless the crime or crimes for which convicted
directly relate to the position of employment sought ….” (Minn.
36
The specific language in the statute absolving the employer
from the responsibility of making any written record of the
individualized assessment also suggests no review of that
assessment will take place. Section 12952, subdivision (c)(1)(B)
lays out the factors to be considered in performing the
individualized assessment, but provides “[a]n employer may, but
is not required to, commit the results of this individualized
assessment to writing.” Again, when communicating with the
individual who has been denied employment, the statute provides
that the employer “may, but is not required to, justify or explain
the employer’s reasoning for making the final denial or
disqualification.” (§ 12952, subd. (c)(5)(A).) This permissive
language suggests the employer will not be required to justify the
employment decision.
The Legislative history supports an interpretation of the
statute as establishing procedural protections for individuals
with criminal histories—not second-guessing employment
decisions. A Senate Judiciary Committee bill analysis described
the individualized assessment as “a procedure for employers to
follow when an employer has made a conditional offer.” (Sen.
Com. on Judiciary, Analysis of Assem. Bill No. 1008 (2017–2018
Reg. Sess.) June 20, 2017, p. 7.) The bill analysis emphasized the
absence of formal requirements for an individual assessment,
stating, “While the language of this part of the bill is mandatory
(the employer ‘shall’ make the individualized assessment), as a
Stat., § 364.03, subd. 1.) These and similar statutes from other
states expressly prohibit the denial of employment unless the
requisite relationship between the job and the conviction exists.
California’s statute, in contrast, contains no express prohibition,
instead only requiring that the employer follow a set process.
37
practical matter, the requirement will act as more of a guideline.
There is no indication of how long or thoughtful the employer’s
assessment must be …. [T]he practical effect of the provision is
to encourage employers to think about whether their inclination
to rescind an offer to someone based on criminal history is
genuinely related to the demands of the job ….” (Id. at p. 8.)
Appellant relies on the FCA’s implementing regulations in
arguing the employer’s individual assessment analysis is subject
to review. Appellant cites Robinson v. Fair Employment &
Housing Com. (1992) 2 Cal.4th 226, 234–235, for the proposition
that although not binding, great weight is given to administrative
regulations construing and implementing FEHA statutes.
Appellant argues the regulations make clear that the term “direct
and adverse relationship” is a substantive standard.
Appellant first cites California Code of Regulations, title 2,
section 11017.1, former subdivisions (d)(1) and (g)18 to argue the
“direct and adverse” relationship is a substantive standard,
requiring “a demonstrable relationship to successful performance
on the job and in the workplace” because of the “specific position.”
This language serves to expand upon the statute’s procedural
requirements and does not further appellant’s argument that we
should second-guess an employer’s decision.
Appellant next argues the regulation in effect at the time of
the events in question contained a rebuttable presumption that
reliance on a conviction seven or more years old does not meet the
necessary direct and adverse standard. (Cal. Code Regs., tit. 2,
§ 11017.1, former subd. (g)(2).) A close reading of the regulation
reveals this rebuttable presumption arises in the context of a
18 Appellant cites to the version operative October 1, 2020.
38
claim that the employer’s policy of considering convictions—other
than those that employers are prohibited from considering under
subdivision (c)—creates an adverse impact on individuals
protected by the Act.19 In that context, “If the policy or practice
of considering criminal convictions creates an adverse impact on
applicants or employees on a basis enumerated in the Act, the
burden shifts to the employer to establish that the policy is
nonetheless justifiable because it is job-related and consistent
with business necessity.” (Cal. Code Regs., tit. 2, § 11017.1,
former subd. (g)(1).) The regulation then explained, “Bright-line
conviction disqualification or consideration policies or practices
that include conviction-related information that is seven or more
years old are subject to a rebuttable presumption that they are
not sufficiently tailored to meet the job-related and consistent
with business necessity affirmative defense ….” (Cal. Code Regs.,
tit. 2, § 11017.1, former subd. (g)(2).)
As appellant’s claims do not arise in this context, the seven-
year rebuttable presumption that existed in the cited regulation
at the time is irrelevant. No such restriction on considering
convictions more than seven years old exists in the statute.
Therefore, we decline to consider this presumption advocated by
appellant.20
19 Such adverse impact on individuals on a basis protected by
the Act includes, but is not limited to, “gender, race, and national
origin.” (Cal. Code Regs., tit. 2, § 11017.1, former subd. (f).)
20 While it was suggested that the statute prohibit employers
from considering felonies that occurred over seven years before
the background check, the provision was removed from the final
statute. (Assem. Floor, Concurrence in Senate Amendments,
39
Appellant has failed to convince us that a substantive
review of UCLA’s individualized assessment should be conducted
by a court.21 We decline to undertake such an analysis and
affirm the trial court’s determination that all the employer is
required to do is to conduct its assessment in the manner called
for under the FCA. While we review claims that employers have
violated the statute, we decline to consider whether the employer
reached an incorrect conclusion when considering whether a
direct and adverse relationship exists.22
Analysis of Assem. Bill No. 1008 (2017–2018 Reg. Sess.) as
amended Sept. 8, 2017.)
21 We find appellant’s references to individualized
assessments in the contexts of suitability for probation (Kody P.
v. Superior Court (2006) 137 Cal.App.4th 1030, 1033, 1037) and
mental health (People v. Mary H. (2016) 5 Cal.App.5th 246, 259,
fn. 6) to be unpersuasive.
22 Appellant relies heavily on a Hawaii case, Shimose v.
Hawai’i Health Systems Corp. (2015) 134 Hawaii 479, 485. In
Shimose, the lower court granted summary judgment of a
healthcare entity’s claim that its failure to hire an individual
convicted of possession with intent to distribute
methamphetamine was justified because there existed the
statutorily required “rational relationship” between the
conviction and the duties and responsibilities of the position. The
Supreme Court of Hawaii reversed, finding material fact issues
existed as to the rational relationship between the drug
conviction and the position. However, we note the Hawaii statute
is significantly different from the one before us, making it “‘an
unlawful discriminatory practice … [f]or any employer to refuse
to hire or employ … any individual … [b]ecause of … arrest and
court record’” unless the conviction record bears a rational
relationship to the duties and responsibilities of the position. (Id.
at p. 484; see Hawaii Rev. Stats., §§ 378-2, 378-2.5.) Given the
40
D. Requirement of harm beyond the denial of the
five-day response period
The FCA mandates that applicants “shall have at least five
business days to respond to [a preliminary disqualification notice]
before the employer may make a final decision.” (§ 12952, subd.
(c)(3).) On January 5, 2022, UCLA sent appellant a letter
advising him that his criminal history might disqualify him from
employment but informing him he had five business days to
submit evidence challenging the accuracy of the criminal history
or provide evidence of rehabilitation or mitigation. On
January 7, 2022, appellant was informed he was ineligible for the
position, although the five-day period had not run.
The trial court found that UCLA’s actions violated the FCA
because UCLA denied appellant the statutorily-mandated five
days to respond to its pre-adverse action letter. However, the
court reasoned that in every case, the plaintiff must “prove a
harm suffered as a result of the wrongful act alleged and facts
that demonstrate a ‘nexus,’ i.e., a connection between … that
harm and the act complained of.” Consistent with this reasoning,
the trial court ruled a jury would decide whether UCLA would
have reached the same decision had appellant been given the full
five business days to provide the additional evidence of
rehabilitation. The jury was asked that question on the special
verdict form and found that UCLA would still have disqualified
significant differences between the Hawaii statute at issue in
Shimose and the one at issue here, we decline to consider the
case.
41
appellant even if it had afforded him the full five days to
respond.23
Appellant disagrees with this approach. Instead, appellant
argues, the FCA confers upon applicants a statutory right to a
minimum response opportunity timeframe. Appellant argues it
is routinely recognized in various contexts that the denial of a
legally guaranteed right, in and of itself, causes cognizable and
redressible harm distinct from any actual or measurable damage.
We review the case law provided by the parties on this
contested issue and conclude appellant has failed to show the
trial court erred in requiring appellant to prove he was damaged
by the procedural violation.
1. General law regarding necessity of showing
harm
In civil actions, the general rule is that a plaintiff must
prove the defendant’s wrongful act caused harm. (See, e.g., Uriell
v. Regents of University of California (2015) 234 Cal.App.4th 735,
743.) This rule applies whether the plaintiff’s claim is based on
common law or statutory law. (Janis v. California State Lottery
Com. (1998) 68 Cal.App.4th 824, 832 [to maintain a private civil
action for breach of statutory duty, plaintiffs must demonstrate
the breach “was a proximate cause of the injury suffered”].) The
Supreme Court has noted that, in actions seeking damages under
FEHA, a plaintiff may recover “those damages ‘generally
available in noncontractual actions.’” (State Dept. of Health
Services v. Superior Court (2003) 31 Cal.4th 1026, 1042.) Thus,
the general law requiring a plaintiff to show harm to recover
damages for a statutory violation applies in the FEHA context.
23 Appellant does not challenge the jury findings.
42
It is generally required that a plaintiff show harm in the
context of procedural due process violations as well. “[A]s a
general rule, ‘procedural due process violations, even if proved,
are subject to a harmless error analysis.’” (Thornbrough v.
Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169,
200.)
In cases where the Legislature wants to grant statutory
damages, “[i]t ‘may authorize consumers and others whose rights
have been violated to recover statutory damages or penalties
absent … concrete harm ….” (Parsonage v. Wal-Mart Associates,
Inc. (2026) 118 Cal.App.5th 399, 411.) The statute at issue in
Parsonage, Civil Code section 1786.50, specifically provides that
an investigative consumer reporting agency that fails to comply
with any requirement under that title is liable to the consumer
who is the subject of the report for “[a]ny actual damages
sustained by the consumer as a result of the failure or … ten
thousand dollars ($10,000), whichever sum is greater.” (Civ.
Code, § 1786.50, subd. (a)(1).) The Legislature made no such
provision for statutory penalties or damages in the FCA.
The authorities cited above suggest the trial court did not
err in requiring appellant to prove he was harmed due to UCLA’s
violation of the five-day response period set forth in section
12952, subdivision (c)(3).
2. Appellant’s legal authorities are unpersuasive
Appellant has provided no persuasive authority suggesting
the general law cited above is inapplicable in this context.
Appellant relies on Soria v. Univision Radio Los Angeles, Inc.
(2016) 5 Cal.App.5th 570, which involved, in part, a claim for
violation of the Moore-Brown-Roberti Family Rights Act (CFRA)
(§§ 12945.1, 12945.2). The CFRA contains language similar to
43
that contained in the FCA, making it “unlawful for an employer
… to ‘interfere with, restrain, or deny the exercise of, or the
attempt to exercise, any right’ provided by CFRA.” (Soria, supra,
5 Cal.App.5th at pp. 600–601; see § 12952, subd. (a)(4) [making it
unlawful to “interfere with, restrain, or deny the exercise of, or
the attempt to exercise, any right provided under this section”].)
In the context of a claimed CFRA violation, the Soria court
explained the claimant need only show: “‘“(1) the employee’s
entitlement to CFRA leave rights; and (2) the employer’s
interference with or denial of those rights.”’” (Id. at p. 601.) The
Soria court concluded triable issues of material fact existed as to
the plaintiff’s claims, thus reversed the trial court’s summary
judgment ruling. The case does not discuss the propriety of
nominal damages or whether actual harm is required.
Barber v. State Personnel Bd. (1976) 18 Cal.3d 395 (Barber)
involved in part a Skelly violation in which the plaintiff was not
afforded notice of the reasons for the punitive action and an
opportunity to respond.24 (Barber, at p. 403.) The cited portion of
the opinion discusses the date from which the plaintiff’s back pay
should be paid. The case does not allow for nominal damages for
a procedural violation but instead calculates such damages based
on the plaintiff’s proven losses during the period in which the
procedural violation occurred.
Economy v. Sutter East Bay Hospitals (2019) 31
Cal.App.5th 1147, 1161, discusses a similar issue to that
presented in Barber. In Economy, a doctor’s privileges were
suspended without prior notice and a hearing in violation of
Business and Professions Code section 809 et seq. (Economy, at
24 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
44
p. 1152.) In discussing the appropriate remedy for the procedural
violation, the Economy court stated, “case law establishes that a
plaintiff is entitled to recover lost wages until the due process
violation has been corrected.” (Id. at p. 1161.) The Economy
court cited Barber for the proposition that “the appropriate
remedy when a permanent civil service employee is denied a
Skelly hearing prior to termination ‘is to award back pay for the
period of wrongful discipline.’” (Economy, at p. 1161, fn. omitted.)
Again, the case does not suggest nominal damages are
appropriate in a case such as this. Instead, Economy, like
Barber, contemplates proof of actual damages.
Appellant also cites Lujan v. Defenders of Wildlife (1992)
504 U.S. 555, 578 (Lujan), in which the high court discussed the
injury required to confer United States Constitution, article III
standing. The case does not suggest nominal damages are
appropriate for a violation of the five-day provision of the FCA.25
Sweet v. Johnson (1959) 169 Cal.App.2d 630, 632, is also
irrelevant, as it involved nominal damages “which are presumed
as a matter of law to stem merely from the breach of a contract.”
Breach of contract is not at issue in this matter.
25 Uzuegbunam v. Preczewski (2021) 592 U.S. 279, 292, cited
for the first time in appellant’s reply brief, also discusses the
issue of standing, holding “a request for nominal damages
satisfies the redressability element of standing where a plaintiff’s
claim is based on a completed violation of a legal right.” The high
court clarified its decision concerned “only redressability,” and
any plaintiff must establish the other elements of standing and
“plead a cognizable cause of action.” (Id. at pp. 292–293.) Like
Lujan, it does not suggest nominal damages are appropriate in
this case.
45
Finally, Raines v. U.S. Healthworks Medical Group (S.D.
Cal. 2024) 2024 WL 3850812 involved class certification of a class
action involving a healthcare provider’s violation of section
12940, subdivision (e), due to medical questions asked on its
employment application. (Raines, at p. *1.) In discussing the
typicality of the plaintiffs’ class claims, the court noted
“[p]laintiffs are no longer pursuing compensatory damages under
FEHA or any other theory of liability, only nominal and punitive
damages under FEHA” based on the alleged violations of 12940,
subdivision (e). (Raines, at p. *6.) The case provides no authority
for appellant’s position that nominal damages are proper in this
matter.
Appellant has failed to convince us the trial court erred in
requiring appellant to prove he was harmed as a result of UCLA’s
violation of the five-day response period in this matter.
DISPOSITION
The judgment is affirmed. Each side will bear its own costs
of appeal.
CHAVEZ, Acting P. J.
We concur:
RICHARDSON, J.
GOORVITCH, J.
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