Court Holds: Failure to Pursue Internal Grievance Process is Failure to Mitigate Damages

A California Court of Appeal has affirmed a judgment in favor of an employer following a jury trial on a FEHA-based claim of age discrimination. The losing employee had had two major arguments on appeal, both of which the Court rejected. It affirmed the trial court’s refusal to allow the employee to pursue a disparate impact theory because the employee failed to allege that theory in her complaint or otherwise put the employer on notice that she made this claim. Until trial, her claim had been for disparate treatment – i.e. intentional discrimination. The employer was prejudiced, in part, because it had not alleged or developed a business necessity affirmative defense. That defense is only applicable to a disparate impact theory.

The Court also ruled that the employee’s failure to pursue the employer’s internal grievance process was a failure to mitigate damages and admissible under the “avoidable consequences doctrine.” The facts were that, had the employee followed that process, her termination would likely have been reversed and she would have suffered little or no harm. Although this case focused on employer-provided remedies, it may be that a similar argument could be made – given good facts – that a failure to pursue available, but not mandatory, administrative remedies is a failure to mitigate damages.

The case is Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (5/29/14).

A California Court of Appeal has affirmed a judgment in favor of an employer following a jury trial on a FEHA-based claim of age discrimination. The losing employee had had two major arguments on appeal, both of which the Court rejected. It affirmed the trial court’s refusal to allow the employee to pursue a disparate […]