Rosenfeld v. Heschel Day School: Where Plaintiff Only Puts Defendant on Notice of Disparate Treatment Claim, No Error in Precluding Plaintiff from Pursuing Disparate Impact Claim at Trial

In Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (5/28/14) --- Cal.App.4th ---, the plaintiff, Ruth Rosenfeld, filed an age discrimination action against her former employer, Heschel, and Heschel prevailed at trial. On appeal, Rosenfeld argued that the trial court erred in precluding her from pursuing a disparate impact theory of liability at trial, in addition to her disparate treatment theory. She also argued that the court should not have allowed Heschel to introduce evidence that Rosenfeld did not  pursue Heschel’s internal grievance procedure before filing suit. The Court of Appeal affirmed, holding as follows: 

The trial court properly precluded Rosenfeld from pursuing a disparate impact theory of liability at trial because she failed to advise Heschel in a timely manner that she would be proceeding on such a theory. Slip op. at 5-10. The Court explained that a disparate treatment theory depends on the defendant's intent to discriminate, while a disparate impact theory does not. Slip op. at 6. "Disparate impact exists where, 'regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.'" Slip op. at 7. Because Rosenfeld's complaint only alleged disparate treatment, the trial court properly precluded her from pursuing a disparate impact theory at trial. Slip op. at 10. 

The trial court did not err in admitting evidence to explain the meaning of "tenure" in Rosenfeld's written employment agreement. Slip op. at 11-13. In any case, because Rosenfeld sued for age discrimination in violation of FEHA, rather than breach of contract, her status as a tenured employee was irrelevant. Slip op. at 12. 

The trial court also did not err in refusing to instruct the jury that it could infer the ultimate fact of age discrimination as long as they disbelieved Heschel's evidence of age-neutral reasons for reducing Rosenfeld's hours. Slip op. at 13-14.

Finally, the trial court did not err in allowing Heschel to introduce evidence that Rosenfeld did not engage in Heschel's internal grievance procedure before filing suit. Slip op. at 15-16. Under the avoidable consequences doctrine, the evidence was relevant to show that Rosenfeld would not have suffered at least some of her alleged damages if she had followed the grievance procedure. Slip op. at 16. In any case, because the jury found that Rosenfeld's age was not a motivating reason for the reduction in her hours of work, any error was harmless. Slip op. at 16. 

The opinion is available here.