Simers v. LA Times Communications, B269565

Background

T.J. Simers, longtime LA Times sports columnist, suffered a neurological event in March 2013 but continued writing; performance reviews had been strong for years.
In late May 2013 the Times reduced Simers from three columns/week to two after management criticized recent columns; editors later suspended his column for investigation after a Sports Business Journal article reported a producer was developing a TV show based on Simers.
An internal investigation (June–August 2013) reviewed emails, interviews, and prior outside-project discussions; investigators concluded there were ethics concerns about undisclosed outside activity and showed distrust in Simers.
On August 8, 2013 Simers received a final written warning and was demoted from columnist to senior reporter (no immediate pay cut); Simers resigned shortly thereafter and accepted a job at the Orange County Register.
Simers sued (FEHA claims) for age and disability discrimination and constructive discharge. A jury found liability on all three claims and awarded economic and noneconomic damages; the trial court granted JNOV on constructive discharge and ordered a new trial on damages because noneconomic awards could not be separated. Both parties appealed; the Court of Appeal affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether constructive discharge was proven	Simers: demotion, suspension, investigation, reputational harm and alleged ‘‘unusually aggravated’’ treatment forced resignation	Times: discipline, investigation and demotion were ordinary employer actions and not intolerable	JNOV for Times on constructive discharge affirmed — record lacked unusually aggravated/continuous mistreatment required for constructive discharge
Whether noneconomic damages must be retried after JNOV on constructive discharge	Simers: jury awarded noneconomic damages for discrimination; damages tied to discrimination and thus retriable without vacating all noneconomic awards	Times: noneconomic damages were intermingled with constructive discharge and therefore must be retried or set aside	Trial court did not err: new trial on all damages was proper because noneconomic award could not be parsed between discrimination and the now-invalid constructive discharge finding
Whether demotion/adverse action supports FEHA discrimination claims	Simers: demotion from columnist to reporter was materially adverse and motivated by age/disability	Times: reassignment was temporary/proposed and never took effect, so not an adverse action	Denial of JNOV on discrimination claims affirmed — substantial evidence that the demotion was an adverse employment action and that age/disability were motivating reasons
Whether partial new trial on damages (not liability) was an abuse of discretion	Times: constructive-discharge theory tainted liability; limited retrial unfair	Simers: liability findings are separable; only damages are intermingled with discharged theory	Court held no abuse — liability findings on discrimination stand; limited retrial of damages justified because damages awards were interwoven with the invalidated discharge finding

Key Cases Cited

Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238 (establishes objective, high bar for constructive discharge requiring unusually aggravated or continuous mistreatment)
Sweatman v. Department of Veterans Affairs, 25 Cal.4th 62 (JNOV substantial-evidence standard)
Gibson v. Aro Corp., 32 Cal.App.4th 1628 (focus on objective working conditions; demotion alone does not establish constructive discharge)
Scott v. Pacific Gas & Electric Co., 11 Cal.4th 454 (recognizes demotion can sometimes form basis for constructive discharge but did not resolve that question)
Thompson v. Tracor Flight Systems, Inc., 86 Cal.App.4th 1156 (example where continuous campaign of harassment supported constructive discharge)
McRae v. Department of Corrections & Rehabilitation, 142 Cal.App.4th 377 (adverse action requires materially adverse consequences beyond pay/benefits)
Jiminez v. Sears, Roebuck & Co., 4 Cal.3d 379 (deference to trial court’s discretion in granting new trial)
Liodas v. Sahadi, 19 Cal.3d 278 (when limited retrial may be prejudicial; guidance on partial new trials)
Burlington Indus. v. Ellerth, 524 U.S. 742 (tangible employment action includes reassignment with significantly different responsibilities)
White v. Burlington N. & Santa Fe Ry., 364 F.3d 789 (adverse employment actions are actionable even if later reversed; internal remedies do not necessarily negate adverse action)