Full Opinion

Filed 9/18/26; certified for publication 10/13/26 (order attached) 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 insuff