California Court of Appeals, Second District, Third Division
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC390751 Alan S. Rosenfield, Judge.
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Schonbrun Desimone Seplow Harris Hoffman & Harrison, Wilmer J. Harris, Shayla R. Myers and Tina Behboudi for Plaintiff and Appellant.
Hinshaw & Culbertson, Filomena E. Meyer, Clint D. Robison and Amy Jensen for Defendant and Respondent.
KLEIN, P. J.
In this age discrimination case, plaintiff and appellant Ruth Rosenfeld (Rosenfeld) appeals a judgment following a defense verdict in favor of her former employer, defendant and respondent Abraham Joshua Heschel Day School, Inc. (Heschel). Rosenfeld alleged Heschel repeatedly reduced her teaching hours “in an effort to force her out of her position because of her age.” Heschel attributed the reduction in Rosenfeld’s hours to a decline in student enrollment.
Rosenfeld does not challenge the sufficiency of the evidence to support the verdict. Her contentions relate to various evidentiary, instructional and other rulings. We affirm.
At the commencement of trial, Rosenfeld filed a trial brief indicating she would be proceeding on a disparate impact theory of age discrimination, in addition to a disparate treatment theory. We hold the trial court properly precluded Rosenfeld from pursuing a disparate impact theory at trial. Disparate impact and disparate treatment are different theories of employment discrimination with different elements. Rosenfeld’s pleadings solely alleged a theory of disparate treatment, based upon intentional discrimination. Her papers were insufficient to put Heschel on notice that she intended to pursue a disparate impact theory at trial.
We also conclude the trial court properly allowed Heschel to present evidence that Rosenfeld failed to pursue Heschel’s internal grievance procedure before filing suit; the evidence was relevant to mitigation of damages. It is established the “avoidable consequences doctrine applies to damage claims under the [Fair Employment and Housing Act], and that under that doctrine a plaintiff’s recoverable damages do not include those damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation.” (State Department of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1034 [6 Cal.Rptr.3d 441, 79 P.3d 556].) Thus, the avoidable consequences doctrine enables an employer to show that
reasonable use of its internal procedures would have prevented at least some of the harm the employee suffered. (Id. at p. 1044.)
FACTUAL AND PROCEDURAL BACKGROUND
In 1972, Rosenfeld commenced employment at Heschel, a private Jewish elementary and middle school in Northridge. Heschel is an affiliate of the Bureau of Jewish Education (BJE), and pursuant to the BJE's code of personnel practices (BJE Code), Rosenfeld was a tenured teacher. She taught third and fourth grade Hebrew/Judaic Studies at Heschel, and was teaching full time, amounting to 25 hours per week.
In the 2005-2006 school year, enrollment at Heschel declined by 15 students, from 455 to 440. This led to a decrease in the need for teachers and a reduction in the number of available teaching hours. Until 2005, Rosenfeld was being paid 5 hours per week for coordinating with a fellow teacher, Jodi Lasker, the Twinning Program, a program for middle school students which involved a two-week stay in Israel. Due to dissatisfaction with Rosenfeld’s performance on the trip, including her poor rapport with the eighth-graders, Betty Winn, head of the school, assigned responsibility for the program solely to Lasker. Heschel renewed Rosenfeld’s contract for the 2005-2006 school year, reduced to 20 hours per week, with a severance payment of $9, 800 for the five hour reduction.
In the 2006-2007 school year, enrollment declined further, to 423 students. As a consequence, Rosenfeld’s teaching hours were reduced further, to 15 hours per week. However, Heschel paid Rosenfeld for a 17-hour work week, so as to be able to maintain Rosenfeld’s health coverage.
For the 2007-2008 school year, enrollment declined further, to 391 students. On May 14, 2007, Winn told Rosenfeld she could only offer her 10
teaching hours for the upcoming school year, and that she would be compensated $14, 658 for the 7-hour loss. Winn assured Rosenfeld she would be notified if more hours were to become available. On May 22, 2007, Rosenfeld accepted the offer in writing, indicating “I plan to return to [Heschel] for the 2007-2008 school year.”
However, on August 24, 2007, three days before classes were to begin, Rosenfeld, through counsel, advised Heschel that she was “forced to resign her employment” because her work environment had become intolerable. The letter asserted that Rosenfeld’s age (60) was a motivating reason for her demotion and constructive discharge.
Shortly after Heschel received this letter, five more teaching hours became available. Had Rosenfeld returned to Heschel per the contract, or employed the BJE grievance procedure, she would have taught 15 hours during the 2007-2008 school year, the same teaching load she had the previous year. Rosenfeld testified in her deposition that had she been given the same number of teaching hours as the previous year, that would have been acceptable to her.
Following Rosenfeld’s hasty resignation, Heschel rushed to hire a new teacher. Rosenfeld was replaced by Tzipi Aboodi, in her mid-fifties, slightly younger than Rosenfeld. Aboodi wound up teaching the 15 hours that would have been taught by Rosenfeld.
Rosenfeld initially filed a charge of age discrimination with California's Department of Fair Employment and Housing, alleging Heschel systematically reduced her hours “in an effort to force me out because of my age, in an effort to replace me with workers under 40.”
Thereafter, on May 13, 2008, Rosenfeld commenced this action. The operative second amended complaint asserted causes of action for discrimination on the basis of age under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (a)); constructive wrongful termination (ibid.); failure to prevent discrimination (id., subd. (k)); constructive wrongful termination in violation of public policy; intentional infliction of emotional distress; and negligent infliction of emotional distress.
On September 16, 2011, the matter came on for trial. On November 1, 2011, the jury returned a defense verdict. The jury, in a special verdict, specifically found Rosenfeld’s age was not “a motivating reason for the reduction of her working hours.”
Rosenfeld unsuccessfully moved for a new trial. Thereafter, she filed a timely notice of appeal from the judgment entered January 3, 2012.
Rosenfeld contends: (1) the trial court erred in precluding her from proceeding with her disparate impact claim; (2) because she was a tenured teacher, the trial court erred in allowing Heschel to argue that she was an at-will employee terminable for any lawful reason; (3) the trial court erred in admitting evidence that Rosenfeld failed to exhaust Heschel’s internal grievance procedure; (4) the trial court erred in refusing to instruct on ...