Cal. Court of Appeal Applies Avoidable Consequences Defense to Discrimination Claim

This case illustrates the benefit of a good internal complaint procedure.  Employers may rely on effective "grievance" or "open door" policies to reduce potential liability, particularly when employees rush to court without first relying on them.

Rosenfeld, a teacher, sued her employer, a school, for age discrimination. She claimed she was forced out by having her hours cut.  However, the school showed there was a decline in enrollment, and that it would have offered her the same hours in the year following her resignation.

At trial, the school argued that Rosenfeld's failure to use the school's internal complaint procedure should work to cut off her damages, based on an "avoidable consequences" theory.   That is a state law defense that says your recovery may be reduced by your failure to reasonably avoid harm.  The California Supreme Court applied this defense to a sexual harassment case (State Dept. of Health Servs. v. Superior Court), rejecting the more employer-friendly federal standard.

Quoting the Supreme Court opinion, the Court of Appeal explained the defense:

State Department of Health Services held “that in a FEHA action against an employer for hostile environment sexual harassment by a supervisor, an employer may plead and prove a defense based on the avoidable consequences doctrine. In this particular context, the defense has three elements: (1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered. [¶] This defense will allow the employer to escape liability for those damages, and only those damages, that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer’s internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.” (State Department of Health Services, supra, 31 Cal.4th at p. 1044, italics added.)

Here, the Court of Appeal held that the trial court properly admitted the school's defense in the context of a discrimination claim, rather than a harassment claim:

the trial court properly allowed Heschel to present evidence that Rosenfeld failed to pursue the internal grievance procedure which could have prevented at least some of Rosenfeld’s damages. [fn 6] [n.6]As indicated, the evidence showed that shortly after Rosenfeld submitted her letter of resignation, five more teaching hours became available, so that Rosenfeld could have taught 15 hours per week, instead of 10 hours. Therefore, had Rosenfeld pursued the internal grievance procedure, she would have taught the same number of hours during the 2007-2008 school year that she taught the year before.

This opinion also includes a good discussion of the difference between disparate treatment and disparate impact.  The plaintiff tried to try the case based on a "disparate impact" theory, arguing the school's new criteria for evaluating teachers had a disparate impact on older teachers.  But the trial court excluded this effort because the plaintiff had been treating the case as "disparate treatment" - intentional discrimination - all along.   Quoting from a Ninth Circuit decision, Coleman v. Quaker Oats, (9th Cir. 2000) 232 F.3d 1271, The Court of Appeal rejected the argument that a FEHA claim can be proved by either method without any previous notice to the defendant (in the complaint):

allowing the plaintiffs “to proceed with their disparate impact theory after the close of discovery would prejudice [defendant] Quaker. A complaint guides the parties’ discovery, putting the defendant on notice of the evidence it needs to adduce in order to defend against the plaintiff’s allegations. A disparate impact theory, lacking the requirement that the plaintiff prove intent and focusing on statistical analyses, requires that the defendant develop entirely different defenses, including the job relatedness of the challenged business practice or its business necessity. Neither of these are necessary to defend against a disparate treatment theory. This case illustrates the problem. At no time prior to summary judgment did [plaintiffs] identify which facially neutral Quaker employment practice they challenged as having a discriminatory impact. . . . The lack of notice on this issue central to the cause of action makes it difficult, if not impossible, for Quaker to know how to defend itself. After having focused on intentional discrimination in their complaint and during discovery, the employees cannot turn around and surprise the company at the summary judgment stage on the theory that an allegation of disparate treatment in the complaint is sufficient to encompass a disparate impact theory of liability.” (Coleman, supra, 232 F.3d at pp. 1292-1293, italics added.)

This case is Rosenfeld v. Abraham Joshua Heschel Day School, Inc. and the opinion is here. 

Court of Appeal: Wages Earned at "Inferior" Job Do Not Count as "Mitigation" of Damages

Employee was a maintenance planner earning  $65,699 per year.  His employer lays him off. 

He moves to another town to be closer to his wife's job.  Employee finds new employment, but 2-3 hours from his new location.  So, he pays $500 per month for a room an hour away from the new job and he saees his family on days off. The new position is maintenance supervisor, paying $69,300 per year.  In all, employee was out of work 8 months.

Employee sues for discrimination, wrongful termination, etc.  He wins his case.  How much is the lost wages? Yes, about $44,000, which is about 8 months' salary.  I know this because that's how much the employee's lawyer asked for during closing argument.  

But the jury awarded $198,000 in lost wages, about 3 years' pay.  That happened to be equivalent to his prior annual salary from the termination date until the trial. 

The employer challenged the verdict on appeal, arguing that the jury did not take into account the employee's mitigation efforts and his actual earned wages.  

The court of appeal decided that the jury had the right to conclude that the longer commute rendered the replacement job "inferior," and that wages earned from an "inferior" job need not be counted against lost wages.

The evidence in the instant case reflects Villacorta’s job at National was located two to three hours away from the home where his family resided. As a result, Villacorta rented a room Lancaster, which was one hour away from National’s plant in Lebec. Villacorta could not find a closer rental because Lebec was “kind of a remote area.” As a result, Villacorta was only able to see his family on weekends. Villacorta’s family consisted of his wife and two daughters, who were seven and 11 years old at the time of trial. Based upon the foregoing evidence, a jury could reasonably conclude the job at National was inferior to the job at Cemex because of the burden placed on Villacorta by the location of the job. The burden included not seeing his family during workdays and having to pay for a second residence. Since the jury could reasonably conclude the National job was inferior, it was reasonable for the jury to not use Villacorta’s National wages to mitigate the Cemex losses.

This decision could lead to a lot of litigation over the quality of replacement employment.  In this case, the employee secured a new job for more money than he was earning at his old job.  Yes, it was far from his home. But he voluntarily moved his home to a remote location, making it more difficult to find replacement employment near his home.  Additionally, the court simply accepted the premise that a job that pays more, and that involves comparable work in a comparable industry still is inferior, but only because of a longer commute.  

It seems like the court is expanding plaintiffs' opportunity to recover damages for "back pay" when they did not actually suffer a financial loss. What is the role of damages for economic loss?  Is it to make a plaintiff "whole?" Or is it to provide a plaintiff with more money than he would have earned if he had stayed employed with the employer that fired him?  

This case is Villacorta v. Cemex Cement, Inc. and the opinion is here.