Monday, January 8, 2018

Simers v. LA Times Communications

In March 2013, plaintiff T.J. Simers was a well-known and sometimes controversial sports columnist for Los Angeles Times Communications, LLC (The Times or defendant).  He had held that position since 2000, receiving uniformly favorable and often exceptional performance reviews from defendant.  On March 16, 2013, plaintiff, then 62 years old, suffered a neurological event with symptoms similar to a “mini-stroke.”  He recovered quickly, for the most part, and soon was again writing his thrice-weekly column.

Two and a half months later, The Times reduced plaintiff’s columns to two per week, to “give [him] more time to write on [his] columns.”  His editors expressed the dissatisfaction of upper management with several recent columns, and stated “they had been having problems with [his] writing for the past 18 months.”  Two weeks later, The Times learned from an article in another publication that a Hollywood producer (who had just filmed a 90-second video that had “gone viral,” in connection with one of plaintiff’s columns) was apparently developing a television show loosely based on plaintiff’s life.  Viewing this as a possible ethical breach, defendant put plaintiff’s columns “on holiday” for 10 days, and then, on June 24, 2013, suspended the column pending an investigation.

On August 8, 2013, after completion of the investigation and several meetings with plaintiff, defendant issued a “final written warning” that removed plaintiff from his position as a columnist and made him a senior reporter, albeit with no reduction in salary “for now.”  Plaintiff’s lawyer informed defendant on August 12 that plaintiff could not work in that environment and considered himself to have been constructively terminated.

On September 4, 2013, The Times asked plaintiff to return to his position as columnist.  But defendant did not answer plaintiff’s questions about how many columns he would write and whether he had to change his interviewing approach, and plaintiff did not trust The Times.  The next day, plaintiff met with editors at the Orange County Register, and by September 9, 2013, had accepted a position as a columnist there.

On October 15, 2013, plaintiff sued The Times.  After a 28-day trial in the fall of 2015, the jury found in favor of plaintiff on his claims of disability and age discrimination, and on his claim of constructive termination.  The jury awarded plaintiff $2,137,391 in economic damages for harm caused by his constructive termination and $5 million in noneconomic damages.  The parties agreed to give the jury a special verdict form that instructed them to fill in the blanks for past and future economic damages only if they found plaintiff was constructively terminated.  The special verdict form allowed the jury to award past and future noneconomic damages without identifying which noneconomic damages were caused by the constructive termination and which were caused by the discrimination.

The trial court granted defendant’s motion for judgment notwithstanding the verdict (JNOV) on plaintiff’s constructive termination claim, and otherwise denied JNOV, finding substantial evidence supported the verdict on plaintiff’s age and disability discrimination claims.  The court also granted defendant’s motion for a new trial on all damages, economic and noneconomic, finding it was not possible to determine what amount of noneconomic damages the jury awarded because of the discrimination but not because of the constructive discharge.  The court denied defendant’s motion for a new trial on plaintiff’s discrimination claims.
Both parties appealed.  We affirm the trial court’s orders.

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