Reported / Citable
Background
John McInerney, age 65, was a UCLA student who applied for an office assistant position at the Graduate Student Resource Center (GSRC) in September 2021. After interviewing, he received a conditional offer on October 5, 2021, contingent on a background check. McInerney worked provisionally for 23.5 hours over six weeks. On November 23, 2021, UCLA human resources instructed the hiring manager, Andrew McClure, to remove McInerney from the schedule pending completion of the background check. McInerney reacted angrily, emailing McClure and HR staff with profane and hostile messages, accusing them of harming him and comparing them to ‘assholes’ and ‘witch hunters.’ UCLA received his criminal history—four drug-related convictions from 2005 and 2007—on January 4, 2022. Sara Haider conducted an individualized assessment under the Fair Chance Act (FCA), considering the nature of the offenses, the time elapsed, and the student-facing nature of the position.
On January 5, 2022, Haider sent a pre-adverse action letter giving McInerney five business days to submit evidence of rehabilitation or mitigation. McInerney did not provide such evidence but instead sent further hostile emails. On January 7, 2022—before the five-day period expired—Haider informed McInerney he was ineligible for the position. McInerney sued under FEHA, alleging FCA violations, retaliation, and failure to prevent retaliation. The trial court granted summary adjudication on the retaliation claims, finding McInerney failed to establish protected activity or causation. On the FCA claim, the court found UCLA complied with all requirements except the five-day response period, and submitted the issue of harm from that violation to a jury. The jury found UCLA’s decision was not based on criminal history and that UCLA would have made the same decision even with the full five days.
The Court’s Holding
The Court of Appeal affirmed the judgment in full. First, it held McInerney failed to establish a prima facie case of retaliation because his hostile, profane emails did not constitute protected activity under FEHA; no reasonable person could believe UCLA’s lawful background check process was unlawful. Even if the emails were protected, UCLA articulated legitimate, nonretaliatory reasons—McInerney’s failure to provide rehabilitation evidence and his unprofessional conduct—and temporal proximity alone was insufficient to show causation. Second, the court upheld summary adjudication on the FCA individualized assessment claim, finding substantial evidence that Haider reviewed the job duties, the convictions, and the statutory factors.
The incomplete internal form and delayed request for the formal job description did not create a triable issue. Third, the court held the FCA does not permit courts to second-guess the substantive outcome of an individualized assessment; the statute imposes only procedural requirements. Fourth, the court ruled that a plaintiff must prove actual harm from a procedural FCA violation—here, the truncated response period—and cannot recover nominal damages for the mere denial of the five-day right. The jury’s finding that UCLA would have reached the same decision defeated the claim.
Key Takeaways
- Hostile, profane, and aggressive communications with an employer during a background check process are not protected activity under FEHA, even if the employee subjectively believes the employer is acting unlawfully.
- An employer satisfies the FCA’s individualized assessment requirement by considering the statutory factors (nature/gravity of offense, time passed, nature of job); no written documentation or specific format is required, and courts will not second-guess the employer’s substantive conclusion.
- A procedural violation of the FCA’s five-day response period requires proof of actual harm—i.e., that the additional time would have changed the outcome—not merely the denial of the statutory right itself.
- Summary adjudication of retaliation claims is proper where the plaintiff cannot show protected activity or where the employer provides strong evidence of a legitimate, nonretaliatory reason that temporal proximity alone cannot rebut.
- The FCA’s structure and legislative history confirm it creates procedural safeguards, not a substantive right to employment regardless of criminal history.
Why It Matters
This decision clarifies key aspects of California’s Fair Chance Act (Government Code § 12952). It establishes that the FCA’s individualized assessment is a procedural mandate, not a substantive standard subject to judicial review of the employer’s reasoning. Employers need not document the assessment in writing, and courts will not evaluate whether the conviction actually bears a ‘direct and adverse relationship’ to the job.
The ruling also confirms that the five-day response period is not a strict liability provision: plaintiffs must prove causation and harm. Additionally, the case reinforces that FEHA’s opposition clause does not protect abusive or unprofessional conduct, even in the context of protesting a background check. The decision provides guidance to employers on compliance and limits potential liability for technical procedural missteps where the outcome would not have changed.