Simers v. L. A. Times Commc'ns, LLC, 18 Cal. App. 5th 1248

Background

T.J. Simers, long‑time LA Times sports columnist with strong prior reviews, suffered a neurological event in March 2013 but continued writing.
Management began criticizing his columns in late May 2013, reduced his columns from three to two per week, and approved then pulled a video of a Dwight Howard interview that involved a producer, Mike Tollin.
A Sports Business Journal article suggested Mandalay (Tollin) was developing a TV comedy based on Simers; the Times suspended Simers’ column, investigated possible ethics breaches, and concluded he violated ethics guidelines.
On August 8, 2013 the Times issued a final written warning demoting Simers from columnist to reporter (no immediate pay cut); Simers left shortly thereafter and took a job at the Orange County Register.
Simers sued under FEHA for age and disability discrimination and for constructive discharge; after a 28‑day trial the jury found for Simers on all three claims and awarded economic and noneconomic damages.
The trial court granted JNOV for the Times on constructive discharge and ordered a new trial on all damages (including noneconomic) because the court found damages awards could not be parsed between discrimination and the now‑vacated constructive discharge finding. The court otherwise denied JNOV/new trial as to liability for discrimination. Both parties appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether constructive discharge was proven	Simers: demotion + suspension, investigation, reputational harm and other actions were so intolerable a reasonable person in his position would be forced to resign	Times: criticisms, investigation, demotion and warning were ordinary disciplinary steps and not unusually aggravated; resignation was voluntary	JNOV on constructive discharge affirmed — objective Turner standard not met; conditions not unusually aggravated or a continuous campaign of harassment
Whether the jury’s noneconomic damages can stand after JNOV on constructive discharge	Simers: noneconomic damages compensated discrimination and investigation‑related distress; jury already found discrimination	Times: damages are intermingled with constructive discharge damages so verdict is unseparable and unreliable	Trial court’s new‑trial order on all damages (economic and noneconomic) affirmed — court reasonably found it impossible to separate noneconomic damages attributable solely to discrimination from those attributable to constructive discharge
Whether the demotion/disciplinary action was an adverse employment action for FEHA claims	Simers: demotion from columnist to reporter was materially adverse (loss of prestige, duties) supporting discrimination claims	Times: reassignment was temporary/proposed and never took effect, so not an adverse action	Denial of JNOV on discrimination liability affirmed — substantial evidence supports that demotion was a materially adverse employment action
Whether a limited new trial on damages (versus full retrial) was improper because issues are intertwined	Times: constructive discharge theory tainted liability; partial retrial on damages would be prejudicial because liability and damages were interwoven	Simers: liability for discrimination was separately and properly found; only damages required retrial because constructive discharge was vacated	Trial court did not abuse discretion by limiting new trial to damages; liability findings on discrimination were distinct and supported by evidence

Key Cases Cited

Turner v. Anheuser‑Busch, Inc., 7 Cal.4th 1238 (Cal. 1994) (establishes objective standard for constructive discharge; requires unusually aggravated or continuous mistreatment)
Scott v. Pacific Gas & Electric Co., 11 Cal.4th 454 (Cal. 1995) (notes that demotion can in some circumstances support a constructive discharge claim)
Gibson v. Aro Corp., 32 Cal.App.4th 1628 (Cal. Ct. App. 1995) (focus must be on working conditions themselves, not the employee’s subjective reaction)
Thompson v. Tracor Flight Systems, Inc., 86 Cal.App.4th 1156 (Cal. Ct. App. 2001) (continuous campaign of harassment can constitute constructive discharge)
Jiminez v. Sears, Roebuck & Co., 4 Cal.3d 379 (Cal. 1971) (standard of review for new trial orders rests largely in trial court’s discretion)
Liodas v. Sahadi, 19 Cal.3d 278 (Cal. 1977) (limited new trials on damages permissible when liability is clearly determined; full retrial required if issues are inseparable)
Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) (finality of adverse action may turn on whether decision was appealable or subject to modification)
White v. Burlington Northern & Santa Fe Ry. Co., 364 F.3d 789 (6th Cir. 2004) (suspension without pay is an adverse employment action; rejects ultimate employment decision rule)
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (U.S. 1998) (tangible employment action includes reassignment with significantly different responsibilities)