Simers v. LA Times Communications ( 2018 )

Filed 1/5/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLLATE DISTRICT
DIVISION EIGHT
T.J. SIMERS, B269565
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC524471)
v.
LOS ANGELES TIMES
COMMUNICATIONS, LLC,
Defendant and Appellant.
APPEAL from postjudgment orders of the Superior Court of
Los Angeles County. William A. MacLaughlin, Judge. Affirmed.
Shegerian & Associates, Carney R. Shegerian and Jill P.
McDonell for Plaintiff and Appellant.
Horvitz & Levy, David M. Axelrad, Scott P. Dixler; Davis
Wright Tremaine, Emilio G. Gonzalez, Evelyn F. Wang; Ballard
Rosenberg Golper & Savitt, Linda Miller Savitt and Elsa
Bañuelos for Defendant and Appellant.
__________________________
SUMMARY
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
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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
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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.
FACTS
1. The Background
a. Plaintiff’s work at The Times
Plaintiff joined The Times as a sports reporter in 1990. His
editor at the time, Bill Dwyre, called him “the best, toughest
reporter I had,” “hard working” and “highly ethical,” and in 2000
promoted plaintiff to columnist, a job plaintiff described as “the
best job in the country.” Mr. Dwyre picked plaintiff for the job
because he “wanted somebody who I knew had guts and would go
after tough subjects and would be a must read every day.” The
position of columnist was “the most prestigious writing position
in the newspaper[.]” Plaintiff wrote three columns each week for
the sports section until the spring of 2013, when the events that
are the subject of this lawsuit occurred.
During his tenure as a sports columnist, plaintiff’s
performance reviews were uniformly positive. He often received
overall ratings of “exceptional,” and was described as a “brilliant
columnist” and “unique among U.S. sports columnists.”
Mike James became sports editor and plaintiff’s supervisor
in 2009. He too described plaintiff in glowing terms as dedicated
and talented, with good interviewing skills, and he encouraged
plaintiff’s assertive and sometimes confrontational style.
Plaintiff also worked with younger reporters, “[t]rying to guide
them and instill some of the dogged reporting skills that can be
important.” Mr. James’s review of plaintiff in February 2013, for
the year 2012, described plaintiff’s columns as “a must-read
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element in The Times Sports section”; concluded plaintiff was
“a very valuable asset to the department”; and gave him the
highest possible rating in the “reporting and writing” category.
On February 1, 2013, the then-editor of The Times, Davan
Maharaj, congratulated plaintiff on “[m]aybe the [b]est interview
with [Kobe Bryant] yet. What a get. Thanks!”
b. Plaintiff’s freelance work
Under the ethics guidelines of The Times, staff members
were “free to do outside creative, community or personal work,
including writing articles and books, giving speeches or
appearing on TV or online venues,” but were required to “obtain
clearance from a supervisor” before accepting freelance
assignments. While Mr. Dwyre supervised plaintiff (through
2005), plaintiff had permission to do a radio show with his
daughter five days a week, for two or three years. Plaintiff
appeared on an ESPN television show (Around the Horn) for four
or five months in 2003, after being recommended by Mr. Dwyre,
and also appeared in a Disney movie. Plaintiff wrote about all
those activities in his columns.
In 2002 or 2003, plaintiff began writing television scripts,
writing and rewriting three or four of them. He told Mr. Dwyre
about the script writing, and Mr. Dwyre correctly predicted his
failure in those endeavors; “[n]one of them ever went
anywhere[.]”
After Mr. James became sports editor in 2009, plaintiff told
him about the scripts he had been writing and trying to promote,
describing his meetings with production companies and “getting
excited and then getting let down,” and Mr. James “found it
amusing.” Mr. James, who had the authority to approve outside
work, confirmed that if he knew about a project an employee was
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working on and did not object to it, “that would effectively
indicate that you have no objection to it, that you approve it –
approve of it.” Once an outside project has been approved, it
“would not present a problem” if the project occurs “even three
years down the line . . . . ” Mr. James knew that plaintiff had an
entertainment agent, and a script or proposal he was trying to
sell for a television show about plaintiff and his daughter, and
Mr. James saw no conflict of interest or ethical violation in
plaintiff’s doing so.
Over the years up to March 2013, plaintiff met with
“somewhere around a dozen production companies,” but got no
further until he met Mike Tollin (“a big time producer”) in August
2011 (after “a real script writing spurt” that ended in January
2011). (Plaintiff’s agent, Bill Douglass, had told him to stop
writing and instead to “talk ideas” and “come up with an idea
that might excite [production companies].”) Plaintiff pitched the
father/daughter concept, and Mr. Tollin “was excited about the
concept.” Mr. Tollin told plaintiff, “Let’s get this going” and
“[l]et’s see if we can make this work.”
Plaintiff was excited by this development, and on
August 18, 2011, sent an email to a friend saying he had a “deal
with Mike Tollin” on a sitcom and “[w]ill let u know if it really
goes anywhere.” Two weeks later, he sent another email to a
friend saying “by the way, I just sold a sitcom.” (This apparently
referred to the idea for a sitcom, and plaintiff never received any
money for it.)
Plaintiff and Mr. Tollin tried to involve writer Alan Zweibel
in the project, and Mr. Zweibel eventually wrote a treatment in
October 2012. But by July 2012, when Mr. Zweibel cancelled a
meeting, plaintiff believed the project was dead, and he never
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saw the October 2012 treatment until discovery in this lawsuit.
The last time plaintiff ever discussed the possibility of a
father/daughter television show with Mr. Tollin was “probably
October of 2012.”
c. Plaintiff’s health issues - March 2013
On March 16, 2013, plaintiff suffered stroke-like symptoms
and was hospitalized in Phoenix. Doctors told him he had had a
“TIA” (transient ischemic attack) or “some sort of mini stroke,”
and the incident could be a precursor to a full-blown stroke.
Plaintiff “was having trouble speaking,” a problem “that every
once in a while still pops up,” and some difficulty walking. He
was “worn out,” frustrated “because of the speech,” and had
“a headache in the back of my head, which I still have to this
day.” In the weeks after the incident, his daughter observed
plaintiff as very tired, very sluggish, limping a bit and
intermittently “having trouble finding the right words.” Despite
this, plaintiff completed a column while in the hospital and wrote
another on March 18, 2013.
Plaintiff consulted Los Angeles neurologist Doojin Kim on
March 25, April 4, and November 5, 2013. Plaintiff had no
symptoms at all on the first visit, and only headache on the
second. (On November 5, plaintiff “was complaining about
concentration difficulties, memory difficulties, and executive
functioning difficulties.”) Dr. Kim told plaintiff it was highly
unlikely he had had a TIA, because his symptoms had lasted for
more than 24 hours. Dr. Kim ordered tests, and told plaintiff he
may have suffered small strokes before the March 16 incident.
He eventually diagnosed plaintiff with complex migraine
syndrome, with symptoms that can mimic a stroke. There is no
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“absolute cure,” but the symptoms can be eliminated with
medication.
Plaintiff’s neurologic event and its effects in the ensuing
weeks were known to The Times, and were met with statements
of concern and support. (Plaintiff wrote a column about his “mini
stroke[]” and “TIA,” mentioning problems with his typing and
speech, on March 18. A column on March 26 again discussed his
“mini-stroke or whatever it was . . . .”) Mr. James reported
plaintiff’s hospitalization to Marc Duvoisin, the managing editor,
and Mr. Duvoisin emailed plaintiff, saying he knew about TIA’s
and was very concerned; he encouraged plaintiff “to take as much
time off as you need, and please let me know what, if anything,
the paper can do to help,” and “[y]our column will be waiting for
you as soon as you feel up to it.” Mr. Duvoisin in turn conveyed
the information about plaintiff’s “micro-stroke” to Mr. Maharaj,
who promptly emailed plaintiff. Mr. Maharaj wrote that he had
just read plaintiff’s March 18 column “which was a hoot,” and “we
are SOOO fortunate to get through this with you intact.”
After his hospitalization, plaintiff told Mr. James that he
had to cancel an interview he had arranged with boxer Floyd
Mayweather, because he (plaintiff) “was out of it. . . . I was
exhausted. My brain was scrambled.”
About two weeks after the incident, on April 2, 2013,
Mr. James emailed plaintiff, expressing the hope that
“everything went well in the tests” and suggesting a column
topic, “[a]ssuming you’re off the DL [(disabled list)] and still plan
to write . . . .” The next day, Mr. James emailed plaintiff to say
“This is just a great column. No one has written anything like
this. Really good . . . .”
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On April 4, 2013, Mr. Duvoisin wrote to plaintiff, saying
plaintiff’s column was “as vigorous and delightful as ever, but I
hear you’re still plagued by headaches. Please know that you
have our full support to take as much time as you need to rest
and recuperate. Everything . . . will be waiting for you on your
return. We need another 20 years of columns out of you before
you hang it up, so take whatever time you need to feel better.”
(Mr. Duvoisin knew from Mr. James that plaintiff was
complaining of headaches.)
2. Events After Plaintiff’s March 16 Hospitalization
In April and May, plaintiff “didn’t know if [he] could get on
a plane and have the energy to complete [an] assignment,” and
“articulated some of this to Mike James,” telling Mr. James that
he was “just trying to prove to myself that I can do this, but I
believe I can.” He was “just tired,” and “[f]ocus and concentration
were very difficult.” He had “a constant headache in the back of
[his] head that still to this day I have . . . .” “I’m always dealing
with the headache in the back of my head, and I’ve let the people
at the paper know that I had the headache. [¶] I wasn’t asking
for any special consideration. I just wanted them to know how I
was, what I was doing.”
Nonetheless, plaintiff continued to produce columns of the
same quality as he had done before his hospitalization.
Mr. James did not see any change in plaintiff’s work product or in
his dedication to his work quality after the March 16 incident
(and as already noted, Messrs. James, Duvoisin and Maharaj all
complimented him on his work). He “landed two very big
interviews” that occurred in April and May 2013, one of them, set
for May 30, 2013, with basketball player Dwight Howard (more
about this below).
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Then, at the end of May, Mr. Duvoisin and Mr. Maharaj
began to express some displeasure with plaintiff.
a. May 28, 2013
On May 28, 2013, Mr. James and assistant sports editor
John Cherwa met with plaintiff and conveyed a decision by
managing editor Duvoisin that plaintiff would write two columns
per week rather than three, a decision that upset plaintiff.
The genesis of the column reduction, according to
Mr. Duvoisin, was “a string of columns” plaintiff wrote in late
April and May.
First, there was a series of columns written in Memphis in
late April, in which plaintiff referred to Memphis as “Rathole,”
Tennessee. Mr. Duvoisin “did not like that” and “thought that
was inappropriate.” (But sports columnists had been using
derogatory terms for other cities for many years, and plaintiff
had done so numerous times without reprimand. And plaintiff’s
column was required to be approved by one of the sports editors
before publication, and the “Rathole” reference remained
untouched.)
Second, Mr. Duvoisin was “troubled” by a column on
May 11, 2013 about then Angels baseball team owner Arte
Moreno, thinking the column was “needlessly harsh and unfair
to” Mr. Moreno. (Plaintiff wrote that the players were “very
much like their owner, and as they say, the fish stinks from the
head down.”)
Third, Mr. Duvoisin was similarly troubled by plaintiff’s
column about Mark McGwire, then the Dodgers hitting coach, on
May 15, 2013. Plaintiff (according to his column) asked
Mr. McGwire, who had a history of steroid use, “Is it time to
introduce the players to steroids?” and “asked if he could still
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score some steroids.” Mr. Duvoisin thought the column was
“needlessly caustic and harsh and wasn’t funny” and “wasn’t
fair.”
At the May 28 meeting, Mr. James conveyed several
criticisms from Mr. Duvoisin and Mr. Maharaj, in addition to the
issues with the three columns just described: they thought
plaintiff’s writing “had become sloppy” and they had been “having
problems with [plaintiff’s] writing for the past 18 months”; they
“questioned his interviewing abilities” based on an interview he
had done with Jim Mora in November 2012, at which plaintiff’s
behavior “reflected poorly on the paper” and was a “public
embarrassment” to The Times; and “they had problems with
stories filed right on deadline.” (This last problem had never
been documented at any time during plaintiff’s 22 years with
The Times. Mr. James testified that plaintiff met his deadlines,
and John Cherwa, who had been deputy sports editor since 2009,
testified that he “never had a problem with [plaintiff] filing his
stories, his columns on time,” and he was “very vigilant on filing
on time.”)
Mr. James told plaintiff he was “just delivering the
message” about the column reduction; he told plaintiff it was not
his decision. The removal of the third column “was not
something that I would have suggested,” and he “didn’t know
what it would achieve[.]” (Mr. Duvoisin claimed the column
reduction was a suggestion by Mr. James and assistant sports
editors Cherwa and Hiserman to resolve the problems
Mr. Duvoisin had with the three columns; “their opinion was . . .
that [plaintiff] had trouble hitting the same standard with the
third column as he had with the other two.”) Mr. James had
never before documented plaintiff’s writing as “sloppy,” or told
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plaintiff he was a “public embarrassment” to The Times, and he
knew of no occasion on which plaintiff’s columns had ever been
suspended.
Mr. James could not recall ever criticizing plaintiff about
the November 2012 Mora interview. Mr. James had been “a little
concerned about it but not to the point that I thought it was a
serious problem.” (This interview with Mr. Mora (at a postgame
press conference) had occurred six months earlier, and there was
no criticism from upper management at the time.) The interview
had been videotaped and posted on YouTube. In his column, and
during the press conference, plaintiff expressed disbelief in
various statements made by Mr. Mora (whom plaintiff had
known for 25 years), and suggested Mr. Mora had intentionally
held his UCLA team back, losing the game so the team would
face Stanford instead of a better team in the upcoming
championship game. Mr. James thought some of plaintiff’s
comments were “on the edge” in terms of a respectful
interviewing technique, and plaintiff admitted in a column he
wrote two days later that one of his comments was “[w]ay out of
line.” At the time of the May 28 meeting, Mr. James knew
plaintiff had a longstanding, good relationship with Mr. Mora,
who had just invited plaintiff to play in a charity golf
tournament.
Mr. James told plaintiff “that he agreed with 85 percent of
the work [plaintiff] was doing, but there was 15 percent that he
agreed with upper management.” And Mr. James “did not have a
serious problem with [the three articles],” which were approved
by his department before they were published.
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Plaintiff, who took pride in his columns, was very upset
about the column reduction, and received permission from
Mr. James to meet with Mr. Duvoisin.
b. May 29, 2013
Plaintiff and Mr. Duvoisin met the following day. Plaintiff
told Mr. Duvoisin “how blindsided [he] was,” and that he “didn’t
understand where it was coming from.” Plaintiff explained “how
passionate [he was] about newspapering[.]” They discussed the
Mora interview, and Mr. Duvoisin conceded he might be “going
overboard on . . . that criticism” and that perhaps it was not fair
“ ‘to pick out one interview.’ ” Mr. Duvoisin “made it clear . . . he
wasn’t a fan of my writing for the past year,” and “he just told me
it wasn’t up to L.A. Times standard.” They discussed the three
columns and Mr. Duvoisin’s criticisms (for example, as to the
McGwire column, “ ‘We just don’t do that at The Times. We
shouldn’t be doing that at The Times’ ”).
Mr. Duvoisin also brought up the subject of plaintiff’s
health, urging him “to get physically right.” Plaintiff said
Mr. Duvoisin “was very nice about it,” saying plaintiff should
“ ‘take as much time off as you like [without] counting it as
vacation,’ ” but “it’s a weird thing when someone’s being nice to
you but you’re not exactly sure they are being nice to you when
they say, ‘get physically right.’ ” Plaintiff questioned “[t]he notion
that I wasn’t physically right.”
When the meeting concluded, Mr. Duvoisin said that they
should continue the conversation when plaintiff returned from a
planned trip. Plaintiff “felt invigorated” and that “maybe there
was a chance that I had made some points about the interviewing
process and . . . that he might reconsider [the column reduction].”
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c. May 30, 2013 - the Dwight Howard
interview and videotaping
On May 22, 2013, plaintiff told Mr. James that he had
obtained an exclusive interview with basketball star Dwight
Howard, and that plaintiff’s daughter “[would] be showing
[Mr. Howard] how to shoot free throws . . . we’re working on dates
now.” (Mr. Howard “wasn’t great at free throw shooting,” and
Mr. James thought it was a “fun idea” to have plaintiff’s daughter
(who had been a successful high school basketball player)
shooting free throws as a part of the interview process.)
Mr. James said that obtaining the Howard interview was “huge,”
and was “access that is beyond the norm.”
After the interview was arranged, plaintiff saw Mr. Tollin
(the Hollywood producer) on television at a Dodgers game, and
sent him a text message telling him his plans for the Howard
interview. Mr. Tollin contacted plaintiff the next day. Mr. Tollin
told plaintiff he had a new website that produced 90-second
vignettes on sports figures, and suggested videotaping plaintiff’s
daughter teaching Mr. Howard how to shoot free throws. (On the
day of the interview, this was changed to a free-throw
competition.) At the time (May 2013), plaintiff “had no business
relationship with Mike Tollin,” and “no development T.V. show at
that time.”
Plaintiff told Mr. James that Mr. Tollin was a “high-
powered producer” who had done work for ESPN, had done
documentaries, had his own production company, Mandalay
Media Sports, and wanted to promote the Mandalay Media
website. Mr. James approved the videotaping by Mr. Tollin and
his production company. (The videotaping idea and Mr. James’s
approval occurred on May 29, 2013, the day before the interview.
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The Times’s own videography department was “spread thin” and
Mr. James planned to send a photographer.) The plan was that
the video could run both on the Mandalay website and on The
Times’s site. Mr. James talked to Mr. Maharaj before the
videotaping and “told him exactly what was going to happen,”
and Mr. Maharaj approved it.
During the videotaping, a Times photographer and
(unexpectedly) a Times videographer arrived at the interview
site, but arrived late, after the proceedings were underway. They
thought the proceedings were being scripted or staged, and
expressed their concerns to the deputy managing editor in charge
of visual journalism, Colin Crawford. Mr. Crawford thought
Mr. James should not have approved the videotaping by
Mr. Tollin. Ultimately, Mr. Maharaj, Mr. Crawford and others
decided not to run the video on The Times’s website, but instead
to run a link from plaintiff’s column to the Mandalay Media
website.
About an hour after the link was posted on The Times’s
website, Mr. Maharaj ordered Mr. Crawford to remove the link.
Mr. Maharaj was “troubled by it” and said it was “basically like a
promotional piece and he wasn’t at all comfortable with it.”
Mr. Maharaj expressed concerns to Mr. James about plaintiff’s
daughter being in the video (Mr. Maharaj had told plaintiff in
September 2012 that family photos should not accompany
columns in The Times), and about plaintiff wearing a cap (that he
always wore) showing the name of plaintiff’s favorite charity for
children.
Mr. James’s opinion was that “it was an entertaining video
and that it was okay to have up on the site.” Plaintiff expressed
his concern to Mr. James that The Times was not “following
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through on an agreement we had [with Mandalay Media], and it
made us look bad,” and Mr. James admitted that “we did not
follow through on the agreement.”
d. The June 2, 2013 column
Plaintiff’s column about Dwight Howard was published on
June 2, 2013. The day before, plaintiff sent Mr. Tollin a copy of
the column, asking him if there were “any problems” with it.
According to Mr. James, that was “not something we do,” because
“you’re giving a source the opportunity to effect change in
something that you’re writing that may benefit that source.” The
column made no mention of the video.
Mr. James was “very positive about the content [plaintiff]
obtained,” and “thought it was a column that would be highly
read.” The column was longer than guidelines normally
permitted, but was published “as it is” because “of the content
that [plaintiff] had gotten . . . .”
e. The June 10, 2013 Sports Business
Journal article
On June 10, 2013, the Sports Business Journal (SBJ)
published an article about Mandalay Media. The article stated,
in relevant part:
“Mandalay Sports Media is developing a TV comedy
based on the life of acerbic Los Angeles Times sports
columnist T.J. Simers, one of several projects the 15-
month-old sports production company has in the pipeline.
“Formed last March by Warriors co-owner Peter
Guber and Hollywood producer/director Mike Tollin,
Mandalay plans to pitch the Simers show to broadcast
networks in the coming months.
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“ ‘The series is about an old-school reporter in a
medium that is quickly evaporating and a daughter who is
a participant in the new media,’ Tollin said. ‘Ultimately, it
will be a comedy focused on their relationship and the
relationship they never had because he was always on the
road and was kind of an absentee dad. He’s kind of trying
to make up for lost time. She’s trying to teach the old dog
new tricks.’
“Mandalay has not made casting decisions for the
show yet – neither Simers nor his daughter will star in it.
“But Simers and his daughter played a starring role
in a viral video Mandalay produced last month with Lakers
All-Star center Dwight Howard. The video, of Simers’
daughter beating Howard in a free throw shooting contest,
was picked up by some of the most popular sports and
entertainment websites, garnering more than
250,000 views.
“. . . Carrying no advertising or sponsorships, the
three-minute video did not make money for Mandalay
Sports Media. But Tollin believes it helped create buzz, not
only around the show but also around Mandalay’s YouTube
channel, which it launched last month.
“ ‘You’ll never know if the viral video will help the
series get off the ground. But we know that it won’t hurt,’
Tollin said.”
f. Developments after the SBJ article
The next day (June 11, 2013), plaintiff learned about the
SBJ article in a text from “[s]omeone telling me that I had a T.V.
show with Mandalay Sports Media.” Plaintiff “texted Mike
Tollin, and I said, ‘I hear I have a T.V. show,’ and I think I used
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seven question marks.” Mr. Tollin called plaintiff later in the
day, saying “no, it was just a story that I was hyping and . . . that
was the angle [the reporter] took.” Mr. Tollin forwarded plaintiff
the SBJ article that day, but plaintiff did not read it.
On the same day, June 11, plaintiff replied to Mr. Tollin’s
email forwarding the SBJ article, saying it had given him an
idea. Plaintiff then suggested and described “a weekly bit on
your new web site” involving “athletes who made an impression
on folks . . . but left tough questions unanswered,” concluding
with “of course this would mean me quitting my job, but that’s
talk for another day . . . .”
On June 13, 2013, The Times’s editors saw the SBJ article.
John Cherwa showed it to Mr. James, who brought it to
Mr. Duvoisin and Mr. Maharaj. Mr. James was “very concerned,”
because “if this is true, then I felt I had been denied information I
needed to know before making the decision on having the video
shot.” Mr. James thought it “was potentially a serious issue,”
because “it’s a real conflict of interest to use any material that is
in the paper or on our website as a vehicle to promote an outside
operation that would benefit the . . . creator of the article.”
Mr. James “thought my superiors needed to see it from me before
they saw it from someplace else.”
Mr. Duvoisin was likewise concerned “because the article
stated that the video . . . was intended to promote a T.V. show
that [plaintiff] was developing on the side with . . . Mike Tollin,”
and “that was not what [Mr. James] understood when he
approved the video to be shot . . . .” Mr. Duvoisin and
Mr. Maharaj decided that “we would need to look into this and
find out what was going on.”
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g. The June 14, 2013 column suspension
The next day, Mr. Duvoisin emailed plaintiff, telling him to
“put your column on holiday for 10 days.” Plaintiff and
Mr. Duvoisin then spoke by telephone, and Mr. Duvoisin
“essentially repeated himself, take the next 10 days off, very
casually.” He did not explain why the column was being
suspended. Mr. Duvoisin told plaintiff he “did not want to get
into it with [plaintiff] that night,” a Friday, because both of them
were leaving on trips the following morning, and they would talk
when they were both back in the office, on Monday June 24.
(Plaintiff went to Wisconsin to visit friends, returning shortly
before the June 24 meeting.)
h. The June 24, 2013 meeting
On June 24, plaintiff met with Mr. Duvoisin and
Mr. Maharaj. Mr. Maharaj told plaintiff that “ ‘we’re here to find
out about your business relationship with Mandalay Sports
Media, with your T.V. show, and with your efforts to promote
your T.V. show on our internet site.’ ” Plaintiff told them he had
no T.V. show and no business relationship with Mandalay Sports
Media. He was “dumfounded.” He had not read the SBJ article;
he “didn’t need to read it” once Mr. Tollin told him that there was
no T.V. show. Plaintiff told Messrs. Duvoisin and Maharaj “that
I had tried to do a T.V. show. I had tried to write lots of scripts,
sell T.V. shows over the years, get a show off the ground. I
worked with Mr. Tollin, . . . but I said that deal fell apart and
died, had gotten nowhere, and all my efforts were now scrap
paper.” They showed him the SBJ article and he started to read
it, but then laughed and said, “this is farcical,” meaning “there
just was no truth to it as far as what I knew.”
19
Mr. Maharaj told plaintiff he “would be internally
investigated into my business relationship with Mandalay Sports
Media, my T.V. show,” and plaintiff was outraged, telling the
editors “there is no T.V. show.” Mr. Maharaj told him, “ ‘We do
not want to hear your side at this time.’ ” They “indicated to me
that there was going to be an internal investigation conducted by
the business editor, who I didn’t know, and the photo editor, who
I had never met.”
Plaintiff continued to explain about his script writing, his
agent, and that “everyone in the sports department knows I’ve
done this for a number [of] years.” Mr. Duvoisin “interrupted to
say that I had violated the ethics guideline, because “ ‘you didn’t
have permission to pitch these ideas for outside work.’ ” Plaintiff
again explained that Mr. James and before him Mr. Dwyre were
“always aware of what I’d been doing.” He told them “that I had
a previous relationship with Mike Tollin as well as other
producers, but at the time of the video I had no relationship with
him, no connection, no business, nothing going on”; “to suggest
that we had a relationship because we were doing a T.V. project,
is completely false.” (Mr. Duvoisin later testified that plaintiff
told them “that he had worked with Mr. Tollin a while back” on a
father/daughter sitcom, but that “the project went nowhere[.]”)
The meeting concluded with plaintiff being told that his
column was on suspension and “the investigators will be in
touch[.]”
3. The Investigation: June 24 – August 7, 2013
Mr. Maharaj tasked business editor Marla Dickerson and
Mr. Crawford with conducting the investigation. Mr. Crawford
said their job was to “get the facts” about “whether there was a
tie between” the video shoot (which Mr. Crawford believed was
20
“a staged production shoot”) and the SBJ article “that said
basically that shoot was to promote a show that was in the
works.” Ms. Dickerson’s job was to interview the people involved
and Mr. Crawford’s job was to “look at e-mails” and “see if there
was a trail or correlation between the two.”
Ms. Dickerson interviewed plaintiff, Mr. James, Wally
Skajit and Bethany Mollenkoff (The Times’s photographer and
videographer, respectively), and Mr. Tollin. (When Mr. Tollin
received a message on July 2, 2013, that Ms. Dickerson had
called him about the video and The Times’s concerns about “how
it came about, etc.,” Mr. Tollin emailed plaintiff, asking “do you
want to talk before I call her back?” Plaintiff responded, “Yes –
good idea.”)
On July 10, 2013, Ms. Dickerson emailed a summary of her
findings to Mr. Maharaj. (The summary was prepared without
reviewing any emails, which Mr. Crawford was handling.) The
Dickerson report concluded: “My interviews with [plaintiff] and
others involved in the Dwight Howard video have turned up no
evidence of serious breaches of The Times Ethics Guidelines by
[plaintiff]. The actions of Mandalay Sports Media are another
story, but those folks aren’t on our payroll.”
On the issue of “[o]utside work” and the SBJ article, the
Dickerson report stated its “[k]ey findings: [Plaintiff] denied that
any TV show is in the works and said the first he heard of it was
when a couple of colleagues emailed him about the article. He
said he and Tollin had some casual conversations about a father-
daughter story ‘a couple of years ago’ but that nothing ever came
of it. He said he was ‘as dumbfounded as anyone’ to hear about
the article. ‘There is no TV show,’ [plaintiff] said. ‘There is no
agreement to do one. There is no money that has exchanged
21
hands.’ [¶] [Plaintiff] emailed me the photo of a text that he sent
to Tollin on 6/11 asking what the heck was going on (it had 7
questions marks in it). [Plaintiff] said he concluded that Tollin
‘embellished’ the whole thing – a case of a Hollywood guy trying
to puff himself up. [¶] That’s pretty much the version Tollin
gave, except that Tollin said the last time he and [plaintiff] had
talked informally about a potential project may have been 2012.
He said there was nothing to the S[B]J story, and characterized
the whole thing as a misunderstanding. . . .”
Ms. Dickerson’s “[f]inal thoughts” were that “Tollin has a
pretty casual relationship with the truth, no question. But in the
case of [plaintiff], until we find evidence to the contrary, we’re
obligated to take him at his word.”
Mr. Duvoisin knew, from Ms. Dickerson’s interview notes,
that Mr. James told her that “[plaintiff] has tried to pitch this
before [TV and movie projects]. This is something he’s been
trying to do for a long time. I never saw an issue. We allowed
him to do that. We never stopped him from doing that. . . . Three
to four times he mentioned it. He was trying to get one done
without any success.” As for the last time Mr. James
remembered plaintiff talking about any project, Mr. James said,
“As far as I know, a couple of years. It’s not something that has
been a continual topic. But it is a long-standing thing.”
Paula Markgraf, then the director of human resources for
The Times, was “pulled [in to] participate in” the investigation,
specifically “to pull e-mails,” on June 26. She did not have access
to the email servers, and contacted the IT department in late
June 2013 to download emails involving plaintiff. She received
the emails on July 9, performed various searches, and reviewed
and printed out “a rather thick set of e-mails” that she passed to
22
Mr. Crawford on July 12. He in turn passed them to
Mr. Duvoisin. Mr. Duvoisin reviewed the emails and created a
six-page summary of “what we had found by reviewing the e-
mails and . . . what the issues were that they raised,” and to
“identify the things we wanted to ask [plaintiff] about.”
The emails revealed plaintiff’s activities in 2011 and 2012
that we have described in part 1.b., ante. They also showed that
plaintiff had written a column in May 2012 about a Norwegian
Olympian about whom Mr. Tollin produced a documentary that
was to air on ESPN; plaintiff sent a copy of the column to
Mr. Tollin for his review before publication, and made two
“rather innocuous changes” Mr. Tollin suggested before
submitting the column for publication. Then, Mr. Duvoisin’s
summary states, there was “a big gap” in “the email trail” until
the Howard interview arrangements and ensuing video
controversy in May 2013. Mr. Duvoisin later testified there were
no email communications in 2013 suggesting that plaintiff had
sold a show, was getting money, had “discussed this project,” or
that “suggested he was trying to do this video to help this
project.” (Plaintiff testified he had not spoken to Mr. Tollin about
a television show in 2013, and the record shows only one email
exchange with Mr. Tollin in 2013 before the Howard video
matter, and that had nothing to do with a television show.)
Mr. Duvoisin concluded that plaintiff had been “untruthful
with us about several things,” including statements that
Mr. Tollin was “an old friend, and they’d talked casually about a
TV project long ago” (plaintiff had met Mr. Tollin two years ago
and the work they did was “very serious”). Mr. Duvoisin also
doubted plaintiff’s claim that he had not read the SBJ article, and
observed that plaintiff and Mr. Tollin “appeared to have
23
coordinated their story” that the article was erroneous. Nor did
plaintiff tell his editors about his June 11 pitch to Mr. Tollin
about a weekly webcast “just weeks ago.” Mr. Duvoisin
concluded plaintiff violated The Times’s newsroom ethics
guidelines by “show[ing] stories to interested outside parties
before publication”; by pitching the weekly webcast to an outside
party without his editors’ approval or knowledge; and, if he had
“sold” a sitcom in 2011, he did not disclose the outside income as
required. Mr. Duvoisin proposed a number of questions to ask
plaintiff and others.
Meanwhile, on July 12, 2013, plaintiff wrote to
Mr. Maharaj about The Times’s “disregard for the stress, impact
on my health and potential damage to my reputation.” Plaintiff
said he did not understand “the delay in this process, which
heightens my suspicion something else is at work here.” Plaintiff
stated he was leaving on a vacation the following day and would
return on July 24, and asked that matters be resolved at that
time.
When plaintiff returned, a meeting was set for July 25,
2013, and plaintiff was told “a human resources person would be
attending the meeting.” He “cleaned out [his] desk, anticipating”
a termination. He then met with Mr. Maharaj and Mr. Duvoisin,
who told him the investigation was still ongoing, and set a
meeting for July 30, 2013.
At the July 30 meeting, Ms. Markgraf was also present,
and the three of them questioned plaintiff. Mr. Duvoisin
suggested plaintiff had not been truthful. Plaintiff said “they
couldn’t get it through their heads that when I said, ‘there is no
script,’ I was referring directly to the accusation that there was a
T.V. show, a business relationship with Mandalay Sports Media.”
24
On July 31, 2013, Ms. Markgraf emailed Mr. Maharaj,
urging a final decision as soon as possible, saying: “[Plaintiff]
made a good case for this dragging out as well as causing stress
and harm to his reputation. I have seen many emails in his inbox
asking what is happening from the public, including questions
whether he is being fired.”
Messrs. Duvoisin and Maharaj and Ms. Markgraf met
again with plaintiff on August 7, 2013, to discuss “discrepancies”
and “to ask more questions about them.” They showed plaintiff
about a dozen emails and the January 2011 script, and “they
were trying to link this 2011 script to 2013, the Dwight Howard
video . . . .” Mr. Maharaj told plaintiff, “ ‘I’ve lost trust in you.’ ”
Plaintiff told Mr. Maharaj that he had done nothing to merit that
kind of comment, and he “was losing trust in them as my
superiors[.]” It “clearly appeared to [plaintiff] that they were
operating off of some plan because it didn’t matter what I said.”
Ms. Markgraf said, “ ‘These two gentlemen will have to figure out
your fate. One of the possibilities is termination.” Plaintiff “was
numb at that point.”
4. The August 8, 2013 Demotion
The four met again the following day, August 8, and on the
same day plaintiff received a “final written warning.” Plaintiff
was told, both orally and then in writing, that “[e]ffectively [sic]
immediately, you are no longer a columnist. After your pending
vacation, you will be a Reporter II on the sports staff. There will
be no reduction in your salary at this time.”1
1 Mr. Duvoisin testified that “Reporter II is a senior reporter
at the L.A. Times. It is the job in which most of our most
experienced staff hold that rank of Reporter II including . . .
maybe six Pulitzer Prize-winning reporters. [I]t would be one of
25
At the meeting, Mr. Duvoisin told plaintiff he “had broken
the ethics code for not having permission to shop different
projects around or . . . get involved in outside activities” and “for
passing columns”; that he had “lost the trust of the editors” and
“had . . . not been forthcoming in answering questions”; and
“mentioned again the notion of a public embarrassment to the
L.A. Times.” The written warning also stated that “[n]ot
reporting the outside activities during the 2010, 2011 and 2012
annual review of the Tribune Business Code of Conduct is also a
violation of company policy.” The only mention of the Dwight
Howard video was this: “Before any of the issues arose that led
to an investigation of your activities, we had been concerned
about the quality and tone of your column and about your public
behavior. As you recall, we met separately with you and your
editors on several occasions in May 2013 to discuss our concerns
– well before the Dwight Howard video surfaced.”
5. Post-demotion Developments
After the August 8, 2013 meeting, plaintiff did not return to
work. About a week after the meeting, The Times received a
letter from plaintiff’s lawyer stating that plaintiff believed he had
been constructively discharged. “[R]elatively soon” after that, the
then-publisher and chief executive officer of The Times, Eddy
Hartenstein, asked Mr. Duvoisin and Mr. Maharaj to reconsider
whether plaintiff could resume his column. They did so, and met
with plaintiff on September 4, 2013, telling him “they wanted
[him] back.” But when he asked how many columns he would
write and whether he had to change his interviewing approach,
they told him they would discuss that when he returned. He
the most sought after positions you could have to be a senior
reporter on the staff of the L.A. Times.”
26
questioned their motives and did not trust them. A proposed
contract “demand[ed] that I admit to wrongdoing” and was a
“one-year . . . guaranteed contract” and “after the first three
months, they could get rid of me . . . for no cause” but with the
obligation to pay him for the rest of the year. (This proposed
contract is not in evidence.)
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. The Register later experienced
financial problems, and in June 2014 plaintiff accepted a buyout
(three months’ severance pay in exchange for resignation) that
the Register offered to its staff in advance of preparation of a
layoff list.
6. The Lawsuit
Plaintiff filed this lawsuit on October 15, 2013. In addition
to the facts recited above, the evidence adduced during the 28-
day trial included the following points.
a. Discrimination/pretext issues
Mr. James testified that plaintiff’s “sense of journalistic
ethics has been strong throughout” his career, and Mr. Dwyre,
who was plaintiff’s supervisor for many years and after that a
fellow columnist, testified that the incident in June 2013 “was the
first time that there was any ethical question about” plaintiff.
Kelly Bassin (formerly Kelly Burgess), who worked at The
Times from 1983 until March 2012 and was Mr. James’s
assistant from July 2009 until she left, testified about the layoffs
she witnessed in the five years before she left (30 to
40 employees). She noticed that “they seemed to be targeting and
focusing on older, more long-term coworkers of mine, people who
had been there for some time and were likely higher salaried
27
employees.” Mr. James “confided in [her] that he was specifically
told to target certain people, the older, higher salaried
employees.”
Mark Heisler was a columnist for The Times from 1991 to
2011, when he was involuntarily laid off at the age of 67. One of
the reasons cited by Mr. Cherwa for Mr. Heisler’s termination
was that “we could maybe save another job. We could save
someone who wasn’t, you know, . . . in that near retirement
position.” (Mr. Cherwa asserted that Mr. Heisler “had already
said he planned to retire . . . .” At the time of trial, Mr. Heisler
was a freelance correspondent with L.A. News Group and a
freelance blogger for Forbes.com.)
After plaintiff left, Mr. James planned to request two new
hires. Mr. James wanted to hire Steve Dilbeck, a versatile and
solid writer, 61 years old, who was “very . . . plugged in to the
sports scene in Los Angeles,” for one of the positions, and the
other would be “someone younger.” Mr. James told Mr. Dilbeck
that “the average age of our staff is 53,” and “we have to get
younger.” Mr. Maharaj and Mr. Duvoisin made the ultimate
hiring decisions. Two men, one in his 20’s and one in his 20’s or
30’s, were hired. One of them came in at a “fairly high salary,”
but “less than half” of plaintiff’s salary.
Plaintiff testified that many of the employees “being asked
to leave” during the preceding five years “were close to my age,”
so “I was aware that an older crowd . . . was being shown the
door.”
b. Damages issues
Plaintiff presented extensive evidence of his emotional
distress and worry about damage to his reputation during the
investigation. He conveyed this to Mr. Maharaj as early as
28
July 2, saying he was forced to avoid readers, friends and
associates during the wait and there was already a rumor he was
leaving the paper. He did so again on July 12, telling
Mr. Maharaj he was “dumbfounded by the disregard for the
stress, impact on my health and potential damage to my
reputation” in the month since he had been told to stop writing.
In addition to his own testimony, his wife and daughter
testified about plaintiff’s stress, confusion, irritability and
reclusiveness during the column suspension, and his depression
and withdrawal after the loss of his column. The defense’s
forensic psychologist (Dr. Francine Kulick) testified plaintiff
developed “an adjustment disorder with features of anxiety and
depression at the end of May 2013,” and diagnosed plaintiff with
major depressive disorder in the severe range as of October 2014.
She testified plaintiff “had an emotional reaction to the loss of
prestige and recognition due to his decision to no longer work at
the L.A. Times[.]” Plaintiff’s expert psychiatrist, Dr. Warren
Procci, also presented testimony on this subject (including that
plaintiff “certainly was already experiencing a very good deal of
depression at the time that he quit. Now, it may be the case that
the fact of quitting . . . did contribute to the depression
worsening”).
We will discuss this and other evidence on noneconomic
damages as necessary in connection with the legal issues on
appeal.
c. The special verdict and postjudgment orders
The jury found in favor of plaintiff on his claims of
disability and age discrimination, and on his claim of constructive
termination. The jury was directed to award past and future
economic damages only if it found plaintiff was constructively
29
terminated. The jury awarded past economic damages of
$330,358 and future economic damages of $1,807,033. The jury
found past noneconomic loss of $2,500,000 and future
noneconomic loss of $2,500,000. The jury found that plaintiff did
not prove by clear and convincing evidence that The Times acted
with malice, oppression or fraud.
Judgment was entered on November 5, 2015. Defendant
filed motions for JNOV and for a new trial.
The trial court granted defendant’s motion for JNOV on the
claim for constructive termination and denied the JNOV motion
on the claims for age and disability discrimination.
The court also granted defendant’s motion for a new trial
“on the claim for constructive discharge (termination) and all
damages, economic and noneconomic, assessed and based on that
claim.” The court denied the new trial motion as to the age and
disability discrimination causes of action, stating that the
“motion for a new trial is denied on all grounds other than the
ground of the insufficiency of the evidence to sustain a claim of
constructive discharge and the award of damages, economic and
noneconomic, addressed in this ruling.”
Plaintiff appealed from the posttrial orders granting in
part defendant’s JNOV and new trial motions. Defendant
appealed from the orders denying in part defendant’s JNOV and
new trial motions.
DISCUSSION
1. Plaintiff’s Appeal
a. The JNOV ruling on constructive discharge
i. The standard of review
“A motion for judgment notwithstanding the verdict may be
granted only if it appears from the evidence, viewed in the light
30
most favorable to the party securing the verdict, that there is no
substantial evidence in support.” (Sweatman v. Department of
Veterans Affairs (2001) 25 Cal.4th 62, 68.) On appeal, “the
standard of review is whether any substantial evidence--
contradicted or uncontradicted--supports the jury’s conclusion.”
(Ibid.)
ii. The law on constructive discharge
“Constructive discharge occurs when the employer’s
conduct effectively forces an employee to resign. Although the
employee may say ‘I quit,’ the employment relationship is
actually severed involuntarily by the employer’s acts, against the
employee’s will. As a result, a constructive discharge is legally
regarded as a firing rather than a resignation.” (Turner v.
Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1245 (Turner).)
To establish a constructive discharge, an employee must
prove “that the employer either intentionally created or
knowingly permitted working conditions that were so intolerable
or aggravated at the time of the employee’s resignation that a
reasonable employer would realize that a reasonable person in
the employee’s position would be compelled to resign.” (Turner,
supra, 7 Cal.4th at p. 1251.)
Turner further tells us that, “[i]n order to amount to a
constructive discharge, adverse working conditions must be
unusually ‘aggravated’ or amount to a ‘continuous pattern’ before
the situation will be deemed intolerable.” (Turner, supra, 7
Cal.4th at p. 1247; see id. at p. 1246 [“The proper focus is on
whether the resignation was coerced, not whether it was simply
one rational option for the employee.”].) “[A] poor performance
rating or a demotion, even when accompanied by reduction in
pay, does not by itself trigger a constructive discharge.” (Id. at
31
p. 1247; see also Gibson v. Aro Corp. (1995) 32 Cal.App.4th 1628,
1635 (Gibson) [employee’s demotion does not constitute
constructive discharge].) But, as the court observed in Scott v.
Pacific Gas & Electric Co. (1995) 11 Cal.4th 454 (Scott), “Turner
did not hold . . . that a demotion can never be the basis for a
wrongful termination.” (Id. at p. 468, fn. 3; see ibid. [observing
that the question “whether a demotion may be so drastic or
punitive as to constitute a constructive discharge” was not before
the Scott court].)
The standard by which a constructive discharge is
determined “is an objective one, and the proper focus is on the
working conditions themselves.” (Gibson, supra, 32 Cal.App.4th
at p. 1637, citing Turner, supra, 7 Cal.4th at pp. 1248, 1251; see
ibid. [“Bruised egos and hurt feelings are not part of the Turner
equation.”].)
iii. Contentions and conclusions
Plaintiff contends he “proved that his punitive demotion
was accompanied by aggravating conditions.” By this we
understand him to mean that there was substantial evidence his
demotion, together with circumstances preceding it, constituted
adverse working conditions that – as the jury was instructed –
were “unusually aggravated or involve[d] a continuous pattern of
mistreatment,” thus making the situation intolerable and
effectively coercing his resignation. (See Turner, supra, 7 Cal.4th
at p. 1247.) We do not find such evidence in the record.
Plaintiff lists, as the intolerable conditions that forced him
to resign, the following: (1) the May 28 reduction in his columns
from three to two per week; (2) Mr. Duvoisin’s statement to
Mr. James (conveyed to plaintiff at the May 28 meeting with
Mr. James) that plaintiff was a “public embarrassment” to The
32
Times; (3) Mr. Duvoisin’s criticism, conveyed at the May 28 and
May 29 meetings, that plaintiff’s writing was sloppy and not up
to The Times’s standards; (4) “[f]alse accus[ations] of unethical
conduct”; (5) the suspension of his columns “for an unreasonable
55 days” (June 24 to August 8); (6) on June 24, plaintiff was “told
not to say anything” about the investigation, so he could not
“explain himself to his sources . . . and fans, damaging his
journalistic resources”; (7) he was “[d]amaged in his professional
reputation with his column inexplicably absent for two months”;
(8) his demotion to an “entry-level assignment position, based
upon false policy violations resulting from discriminatory
motives”; (9) the August 8 final warning that “placed [him] on a
performance plan warning of potential termination”; and (10) the
September 4 offer of “an ambiguous columnist position, reporting
to editors who falsely accused him and called him
untrustworthy.”
We conclude, as a matter of law, that none of these
circumstances, alone or in combination, amount to working
conditions that are either unusually aggravated or a continuous
pattern of mistreatment. There is no evidence to support some of
them. Others consist only of plaintiff’s subjective reaction to
standard employer disciplinary actions – criticism, investigation,
demotion, performance plan – that, even if undertaken for
reasons (plaintiff’s age and disability) later found to include
discrimination, are well within an employer’s prerogative for
running its business. Unless those standard tools are employed
in an unusually aggravated manner or involve a pattern of
continuous mistreatment, their use cannot constitute
constructive discharge.
We begin with two points of clarification.
33
First, there was, as the trial court found, substantial
evidence that plaintiff’s age and disability were “substantial
motivating reason[s]” for the adverse employment action or
actions to which plaintiff was subjected. But the discriminatory
motive for plaintiff’s working conditions has no bearing on
whether the evidence was sufficient to establish constructive
discharge. (See Cloud v. Casey (1999) 76 Cal.App.4th 895, 905
[“The question . . . is not whether there was [unlawful gender]
discrimination [the jury found there was, and the court upheld
punitive damages], but whether the discriminatory working
conditions were so extreme as to coerce a reasonable employee to
resign, thereby constituting a constructive discharge”; “[u]nder
the objective test set out in Turner,” the trial court correctly ruled
the plaintiff’s resignation was not a constructive discharge as a
matter of law].)
Second, the record is clear on this point: The publication of
the SBJ article provided a legitimate basis for an inquiry by
defendant, because it suggested the possibility that the video of
the Dwight Howard interview was being used to promote an
outside business arrangement between plaintiff and Mr. Tollin
for the creation of a television show. While the evidence may
allow inferences of additional motives, no reasonable juror could
conclude that defendant was not entitled to undertake an
investigation. Plaintiff’s personal reaction to that investigation
or to his demotion cannot provide a basis to conclude that
plaintiff’s working conditions were “unusually aggravated” or
that there was a “continuous pattern of mistreatment.” As
Gibson expressly states, “[u]nder Turner, the proper focus is on
the working conditions themselves, not on the plaintiff’s
subjective reaction to those conditions.” (Gibson, supra, 32
34
Cal.App.4th at p. 1636; see ibid. [“[The plaintiff’s]
embarrassment about working as a sales representative does not
convert his demotion into a constructive discharge,” and “People
who are demoted naturally have new job responsibilities, new
supervision, and lower pay. Inferentially, that is what is
supposed to happen when one is demoted.”].)
With those principles in mind, it is plain the evidence did
not support intolerable working conditions forcing plaintiff’s
resignation.
The first three items plaintiff lists (the column reduction,
and Mr. Duvoisin’s criticisms of plaintiff as a “public
embarrassment” and for sloppy writing) do not remotely resemble
“unusually aggravated” working conditions. Criticism of an
employee’s job performance, even “ ‘unfair or outrageous’ ”
criticism, “ ‘does not create the intolerable working conditions
necessary to support a claim of constructive discharge.’ ” (Gibson,
supra, 32 Cal.App.4th at p. 1636, italics omitted.)
The fifth, sixth and seventh items (the suspension of his
columns “for an unreasonable 55 days,” during which he was
“told not to say anything” about the investigation, thus damaging
his journalistic resources and his professional reputation) find no
support in the evidence. His column was suspended, but there
was no evidence of any unreasonable delay in the investigation.
Nor was there any evidence of damage to his sources or to his
reputation. The evidence plaintiff cites for this is that he was
worried about his reputation, and received many emails (from
“everybody from big-time athletes to readers” who “wanted to
know why [he was] not writing,” including “questions whether he
is being fired.” While this is evidence of plaintiff’s own stress and
concern, it is not evidence of damage to his reputation or to his
35
relationships with his sources. As the trial court aptly stated,
plaintiff’s avoidance of business associates and readers while
awaiting the outcome of the investigation is not evidence of “an
improper action or any resulting intolerable working conditions.
Necessarily, when an employer undertakes a review of an
employee’s conduct, there will be a passage of time before an
investigation can be completed and it would be expected the
employee would experience anxiety.”
A similar conclusion applies to plaintiff’s fourth item
(“[f]alse accus[ations] of unethical conduct”). Certainly there was
conflicting evidence, and the jury could properly find plaintiff did
not, in fact, engage in any unethical conduct. But an
investigation into that issue does not create the “sufficiently
extraordinary and egregious” conditions (Turner, supra, 7 Cal.4th
at p. 1246) necessary to trigger a constructive discharge. The
record fully supports the trial court’s conclusion there was no
evidence that any damage to plaintiff’s reputation “was occurring
or eventually occurred.” As the court pointed out, “There was no
evidence that anyone in the workplace, beyond those involved in
the investigation, knew of any allegations of ethics violations.
Employee matters, including investigations, are considered to be
confidential and there was no evidence that such confidentiality
was breached at any time.”2
2 Plaintiff points to Mr. Dwyre’s testimony that reputation is
“huge” in the newspaper business and an alleged ethical violation
can be “death” to a columnist’s career. No doubt that is so, but
that has no bearing where there is no breach of confidentiality.
And, as the trial court pointed out, Mr. Dwyre did not testify that
any kind of ethical violation would have that effect. (“All of the
so-called ethics violations that were potentially involved in this
investigation related to the internal operations of the
36
Finally, the eighth, ninth and tenth items (plaintiff’s
demotion to an “entry-level” position, placement on a
performance plan, and the post-resignation offer to restore his
column) likewise are not evidence of “unusually aggravated”
working conditions or a “pattern of mistreatment.” (There is no
evidence plaintiff was demoted to an “entry-level” position – only
plaintiff’s own perception that he was demoted from “the top of
the hill down to the bottom.” And the offer to return plaintiff to
his position as columnist occurred after his resignation and could
not have contributed to it.) As we have already observed, Turner,
and cases before and after it, all tell us that demotion cannot by
itself trigger a constructive discharge. Neither can a performance
plan, which is a natural accompaniment to a demotion.
Plaintiff contends that a demotion when coupled with other
circumstances may amount to “unusually aggravated” working
conditions or to a continuous pattern of mistreatment, citing
Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th
1156 (Thompson) [concluding substantial evidence supported the
jury’s constructive discharge finding].) Specifically, plaintiff
points to Thompson’s rejection of the employer’s “attempts to slice
into separate incidents – and to evaluate individually – evidence
from which the jury could and clearly did find a ‘continuous
pattern’ of conduct on the part of [the employer].” (Id. at p. 1168.)
Thompson does not help plaintiff. In Thompson (which did
not involve a demotion), there was evidence the plaintiff’s
newspaper[,] and not to relationships with those outside such as
maintenance of confidentiality or accurate and truthful reporting
of what was said or occurred. As a matter of common sense, it is
the latter that has the potential of compromising the reputation
of a columnist or reporter.”)
37
supervisor “intentionally had made it impossible for [the
plaintiff] to do her job through a continuous course of
intimidation and harassment.” (Thompson, supra, 86
Cal.App.4th at p. 1170.) Thompson observed that “employers
have the right to unfairly and harshly criticize their employees,
to embarrass them in front of other employees, and to threaten to
terminate or demote the employee.” (Id. at p. 1171.) But
“a continuous course of such actions, uncorrected by
management, can constitute objectively intolerable working
conditions.” (Ibid.) Citing the Turner standard (“ ‘adverse
working conditions must be unusually “aggravated” or amount to
a “continuous pattern” ’ ”), Thompson concludes: “Implicit in this
disjunctive formulation is that even though individual incidents
in a campaign of harassment do not constitute justification for an
employee to resign, the overall campaign of harassment can
constitute such a justification.” (Thompson, at p. 1172.)
This case is nothing like Thompson. The evidence plaintiff
cites does not show an “overall campaign of harassment,” as it did
in Thompson. It shows meetings conveying criticisms (that
plaintiff found insulting); suspension of plaintiff’s columns while
an investigation was conducted (causing plaintiff anxiety and
depression); the investigation (which plaintiff felt was “unfair”
and “unreasonable,” but during which, as the trial court found,
“[t]here was no evidence that at any time . . . he was the object,
directly or indirectly, of any criticism, hostility or harassment”);
and the ultimate demotion and final warning (performance plan),
in which The Times indicated the investigation’s findings of
ethical violations had “damage[d] our trust in you and in your
suitability to serve as a Times columnist” (a conclusion with
which plaintiff disagreed).
38
In short, the evidence showed only plaintiff’s personal,
subjective reactions to defendant’s use of standard disciplinary
procedures: criticisms, a suspension, an investigation, and
demotion with a performance plan – all performed with no breach
of confidentiality and with no harassment or other mistreatment
of plaintiff. While the evidence allowed the inference that age or
disability discrimination was a motivating factor in one or more
of defendant’s actions, nothing in the conveyance of the criticism,
the performance of the investigation, or the resulting demotion
and performance plan reflected any “unusually aggravated”
working conditions or the “continuous pattern of mistreatment”
necessary for a constructive discharge. It is the working
conditions themselves – not the plaintiff’s subjective reaction to
them – that are the sine qua non of a constructive discharge.
(See Gibson, supra, 32 Cal.App.4th at p. 1636.)
Plaintiff insists that Turner’s objective standard means we
must assess the evidence of “whether conditions were intolerable”
from the point of view of a “prominent columnist for [a] national
publication” – not from the point of view of “reasonable employees
generally.” He points out he was “a public figure in an influential
position, whose actions and absences were observed by the
journalism world, his sources and the public at large,” so the jury
“properly considered evidence of [his] own emotional distress” in
deciding “whether a reasonable person in his position would have
found his working conditions similarly intolerable.” He concludes
there was substantial evidence that “[his] situation had become
so intolerable that he could not continue working for these men
who had discriminated against him and impugned his integrity.”
Plaintiff’s contention is simply contrary to law, which
imposes an objective standard, and requires “the proper focus [to
39
be] on the working conditions themselves,” and “not on the
plaintiff’s subjective reaction to those conditions.” (Gibson, supra,
32 Cal.App.4th at pp. 1636, 1637.) The standard does not change
merely because of the employee’s prominence. To hold otherwise
could turn any employer investigation of a well-known employee
into a constructive discharge, and eviscerate the requirement the
employee show “sufficiently extraordinary and egregious”
conditions (Turner, supra, 7 Cal.4th at p. 1246) to trigger a
constructive discharge.
In the end, the evidence merely shows, as the trial court
concluded, plaintiff’s “own reaction to the fact of an investigation
in which The Times sought information from others instead of
accepting his own version of events.” The evidence shows
plaintiff’s loss of trust and confidence in his superiors at The
Times, but “[t]his is also his personal response from the fact that
he believes that he did nothing wrong.”
In short, the record is devoid of evidence that defendant
intentionally created or knowingly permitted “working conditions
that were so intolerable or aggravated at the time of the
employee’s resignation that a reasonable employer would realize
that a reasonable person in the employee’s position would be
compelled to resign.” (Turner, supra, 7 Cal.4th at p. 1251.)
Accordingly, the trial court did not err in granting defendant’s
JNOV motion on plaintiff’s constructive discharge claim, and we
need not consider the court’s alternative order granting a new
trial on that claim.
b. The ruling granting a new trial on damages
i. The standard of review
“The determination of a motion for a new trial rests so
completely within the court’s discretion that its action will not be
40
disturbed unless a manifest and unmistakable abuse of discretion
clearly appears. This is particularly true when the discretion is
exercised in favor of awarding a new trial, for this action does not
finally dispose of the matter. So long as a reasonable or even
fairly debatable justification under the law is shown for the order
granting the new trial, the order will not be set aside.” (Jiminez
v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387 (Jiminez).)
A new trial order “ ‘must be sustained on appeal unless the
opposing party demonstrates that no reasonable finder of fact
could have found for the movant on [the trial court’s] theory.’ ”
(Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.)
ii. Background
In addition to granting defendant’s JNOV motion on the
constructive discharge claim, the trial court granted defendant’s
motion for a new trial “on the claim for constructive discharge
(termination) and the damages assessed on that claim.” The
court denied the new trial motion “on all grounds other than the
ground of the insufficiency of the evidence to sustain a claim of
constructive discharge and the award of economic damages
addressed in this ruling.”
The next day, January 5, 2016, defendant filed an ex parte
application to clarify the court’s ruling “to expressly state that
The Times motion for a new trial as to noneconomic damages is
granted.” Defendant pointed out that plaintiff’s “alleged adverse
employment actions supporting noneconomic damages are
substantially interwoven with the now-defunct constructive
discharge claim . . . .”
Plaintiff had no opportunity to respond in writing (because
January 5, 2016, was the last day the court had jurisdiction to
modify its ruling), but counsel were heard fully at a hearing on
41
that day. The court observed the application was “legitimately a
motion for clarification because . . . at no place in the ruling did I
specifically mention the noneconomic damages.”
After all counsel presented their arguments, the court
granted the ex parte application, stating the “application is
granted and I will clarify.” The court concluded: “The
clarification will be that I said all damages in several parts.
I meant ‘all damages.’ I did not address specifically the reason
why it is all damages, but I think the clarification calls for it and
I will so clarify.” The court’s minute order states, “It was the
court’s intention that the noneconomic damages should be
included because it is not possible to determine what amount, if
any, the jury awarded because of a constructive discharge.”
Later that day, the court issued an amended ruling, adding
this explanation: “[T]he granting of the motion for a new trial
includes the issue of the noneconomic damages awarded on the
ground that it is not possible to determine what portion, if any, of
said damages was based on the claim of a constructive discharge
which is an adverse employment action. There was substantial
evidence of [plaintiff’s] emotional distress arising from the events
that are the basis of his claims of discrimination. Those claims,
however, included his distress arising from the conditions that he
considered to be the basis of a constructive discharge and the
effect and consequences of that discharge on his emotional
health. It is not possible to separate what damages may have
been awarded for the discrimination alone from what
noneconomic damages were awarded that included a constructive
discharge. It is probable that the jury’s award of noneconomic
damages included some compensation for the constructive
42
discharge which is an event of a very different character than a
voluntary resignation.”
iii. Contentions and conclusions
Plaintiff contends the trial court made an error of law when
it concluded it was impossible to determine “what amount, if any,
the jury awarded because of a constructive discharge.” For the
proposition that the court’s ruling was based on a mistaken
conclusion of law, plaintiff cites Bermudez v. Ciolek (2015) 237
Cal.App.4th 1311, 1324. That case stated that “ ‘[w]hether a
plaintiff “is entitled to a particular measure of damages is a
question of law subject to de novo review,” ’ ” while the amount of
damages is a fact question. (Ibid., see id. at p. 1329 [issue was
proper measure of damages for medical expenses in suit by an
uninsured plaintiff].)
We fail to see the relevance of Bermudez to the trial court’s
ruling: that it was impossible to determine what amount of
noneconomic damages the jury would have assessed in
circumstances where, as a matter of law, plaintiff’s decision to
resign after his demotion was voluntary, not coerced. While
plaintiff insists the ruling rested on an error of law, he provides
no cogent explanation of the alleged error.
First, he asserts he “was denied his due process rights”
because he had no opportunity to respond in writing to
defendant’s ex parte application to clarify the court’s ruling.
Plaintiff cites no authority for, and no further discussion of, his
due process claim, and accordingly we do not consider it further.
As noted above, plaintiff was heard fully at the hearing, and he
did not claim in the trial court that he was denied due process.
Second, plaintiff repeatedly asserts that constructive
discharge was a legal theory, not a separate cause of action – that
43
is, his constructive discharge was one of the several adverse
employment actions defendant took against him, all based on his
age and disability. In fact, plaintiff alleged a separate cause of
action, but in the end the court and all parties agreed it was
unnecessary to give the CACI instructions on all the elements of
constructive discharge in violation of public policy. Instead, the
court and all parties agreed to give only a modified version of
CACI No. 2510 explaining the phrase “constructive discharge.”
The court and all parties agreed that plaintiff needed to maintain
his claim for constructive discharge in violation of FEHA in order
to recover economic damages. We find no relevance in plaintiff’s
proposition that constructive discharge was a “finding” and “not a
separate cause of action.”
Plaintiff makes another confounding argument to the effect
that the jury found his demotion was discriminatory; the
evidence supporting his discrimination claims included “the same
conduct on which the legal theory of constructive discharge was
based”; and even if defendant’s conduct was insufficient to prove
constructive discharge, that conduct “did not become inadmissible
to prove [plaintiff’s] FEHA claims, and all damages resulting
from discriminatory adverse conduct including demotion are
recoverable.” All that may be so, but the question is not the
admissibility of the evidence of defendant’s conduct (or the
recoverability of all damages “resulting from” that conduct). The
question is the amount of damages for emotional distress that
actually did “result[] from” the discriminatory demotion – as
opposed to the emotional distress that may have resulted from
plaintiff’s own decision to resign (and his later decision not to
accept defendant’s offer to return him to his position as
columnist).
44
There was evidence, for example, of plaintiff’s stress and
anxiety during the column suspension, but there was also
testimony about an increase in his depression after he left The
Times. As recounted earlier, the defense’s forensic psychologist
testified plaintiff “had an emotional reaction to the loss of
prestige and recognition due to his decision to no longer work at
the L.A. Times,” and plaintiff’s expert psychiatrist also testified
that “it may be the case that the fact of quitting . . . did
contribute to the depression worsening.” There was also
testimony that plaintiff’s symptoms improved when he went to
work for the Orange County Register, and he was eventually
more depressed after leaving the Register.
In short, we agree with the trial court’s conclusion that it is
impossible to separate “what damages may have been awarded
for the discrimination alone from what noneconomic damages
were awarded that included a constructive discharge” – that is,
damages for plaintiff’s distress arising from “the effect and
consequences of that discharge,” an event “of a very different
character than a voluntary resignation.”3 There was no error in
the trial court’s ruling.
3 Plaintiff also suggests that “[i]f any ambiguity theoretically
resulted from the damages questions in the Special Verdict, then
Defendant invited that error and is prevented from attacking the
Special Verdict.” This claim is baseless. The comments of
defense counsel that plaintiff cites (merely confirming plaintiff
“could be discriminated against but not constructively terminated
and have emotional distress damages”) occurred on October 28,
2015, when the parties first discussed with the court their
respective drafts of the special verdict form. The following day,
after further discussions during the morning session and at the
beginning of the afternoon session, the clerk handed the court a
45
2. Defendant’s Appeal
Defendant contends the trial court should have granted its
JNOV motion on all of plaintiff’s claims, because plaintiff “did not
suffer an adverse employment action.” Alternatively, defendant
contends the court should have granted a new trial on liability for
plaintiff’s discrimination claims, “untainted by [plaintiff’s]
erroneous constructive discharge theory.” We disagree with both
contentions.
a. The ruling denying JNOV on plaintiff’s age and
disability discrimination claims
As discussed above, our review of the trial court’s denial of
defendant’s JNOV motion is limited to whether any substantial
evidence supports the jury’s conclusions. Defendant’s argument
on appeal further limits our review, because defendant’s sole
claim is that plaintiff “did not experience an adverse employment
action,” and so his discrimination claims “fail as a matter of law.”
We do not agree.
Defendant’s claim depends on an insupportable
characterization of both the facts and the law.
First, defendant characterizes plaintiff’s demotion from
columnist to reporter as a “proposed reassignment” and a
“temporary reassignment to senior reporter” that “never took
effect.” That is not what happened. On August 8, 2013, plaintiff
was told, both orally and in a “final written warning,” that he was
no longer a columnist, “effective immediately.”
verdict form, and both parties told the court that they agreed
upon the verdict form. Indeed, in his opening brief on appeal,
plaintiff states, “Both parties agreed upon the Special Verdict
Form.”
46
Second, there was ample evidence that the position of
columnist was significantly different from and far more
prestigious than that of reporter. As defendant necessarily
concedes, a job reassignment may be an adverse employment
action when it entails materially adverse consequences. (McRae
v. Department of Corrections & Rehabilitation (2006) 142
Cal.App.4th 377, 393 (McRae) [in a lateral transfer where a
plaintiff “ ‘suffers no diminution in pay or benefits,’ ” the plaintiff
does not suffer an actionable injury “ ‘unless there are some other
materially adverse consequences . . . such that a reasonable trier
of fact could conclude that the plaintiff has suffered objectively
tangible harm’ ”]; see White v. Burlington Northern & Santa Fe
Railway Co. (6th Cir. 2004) 364 F.3d 789, 803 (White)
[transferring the plaintiff “from her forklift operator job to a
standard track laborer job” that paid the same was an adverse
employment action; the new position was “more arduous” and “
‘dirtier’ ” and the forklift position “required more qualifications,
which is an indication of prestige”; “[i]n essence, . . . the
reassignment was a demotion”].) Such “ ‘materially adverse
consequences’ ” (McRae, at p. 393) are apparent here.
In short, defendant’s action was not a “proposed
reassignment”; it was “effective immediately” and it was entirely
reasonable for jurors to conclude the change from columnist to
reporter was necessarily accompanied by “ ‘materially adverse
consequences.’ ” (McRae, supra, 142 Cal.App.4th at p. 393.)
Unlike McRae, here the “proposed reassignment” involved “a
change in status [and] a less distinguished title,” and a
“significant change in job responsibilities.” (Ibid.) Testimony
from plaintiff, Mr. Dwyre and others confirmed that the position
of columnist was “the most prestigious writing position” at the
47
newspaper, and “very different from a reporter, reporter II
position at the paper,” giving the columnist “wide discretion” on
writing topics. (Indeed, Mr. Duvoisin’s “final written warning”
describes a Times columnist as “a privileged position in which a
writer enjoys great latitude.”) The change from columnist to
reporter was plainly a demotion, and certainly amounted to
“a tangible injury supporting a claim of adverse employment
action.” (McRae, at p. 394; see Burlington Industries, Inc. v.
Ellerth (1998) 524 U.S. 742, 761 [“[a] tangible employment action
constitutes a significant change in employment status, such as
. . . reassignment with significantly different responsibilities”].)
Defendant insists that “before [plaintiff] ever worked a
single day in his new position, The Times decided to restore
[plaintiff’s] column.” Consequently, defendant concludes,
plaintiff’s “temporary reassignment to senior reporter” was not
“sufficiently final to constitute an adverse employment action,”
citing Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917,
930 (Brooks), and Dobbs-Weinstein v. Vanderbilt University (6th
Cir. 1999) 185 F.3d 542, 546 (Dobbs-Weinstein). This contention
ignores other facts, and the cited authorities do not support it.
The reason plaintiff did not “work[] a single day in his new
position” is that he chose to leave The Times rather than accept
the demotion. It is undisputed that he never returned to work
after August 8, 2013, and that four days later, his lawyer advised
The Times that plaintiff considered himself to have been
constructively discharged. While we have concluded there was no
constructive discharge, there was certainly a de facto voluntary
resignation. Plaintiff’s refusal to accept The Times’s later offer –
to “bring [plaintiff] back to the L.A. Times” – may affect the
damages he can recover, but that belated offer cannot change the
48
nature of defendant’s employment action. His demotion was
“effective immediately,” and by its own terms was a “final written
warning” that ended with the advisement that The Times would
“keep an eye on [plaintiff’s] performance going forward” and that
compliance with the listed performance expectations “will be
necessary to ensure that any additional disciplinary measures up
to and including termination are not necessary.” Plaintiff never
returned to work, and the purpose of the September 4 meeting
was to “discuss [plaintiff] returning.” Under these circumstances,
no reasonable person would view The Times’s August 8 action as
a “proposed reassignment” that “never took effect.”4
Brooks and Dobbs-Weinstein do not support defendant’s
assertion that plaintiff “did not experience an adverse
employment action.” Brooks was a retaliation case, and the
plaintiff “allege[d] that her performance review was downgraded
from ‘satisfactory’ to ‘needs improvement’ because of her
complaint about [an episode of sexual harassment by a
coworker].” (Brooks, supra, 229 F.3d at p. 929.) The court
observed that “an undeserved negative performance review can
constitute an adverse employment decision.” (Ibid.) But in
Brooks, the evaluation “was not an adverse employment action
because it was subject to modification by the [employer].” (Id. at
pp. 929-930.) (The plaintiff had refused to accept the review and
submitted a written appeal to her employer, expressing her view
that the evaluation was intended to retaliate against her for
4 This conclusion makes it unnecessary to consider the
parties’ debate over whether defendant’s various actions
preceding the demotion (reduction in columns, allegedly
unwarranted criticism, and so on) amounted to adverse
employment actions.
49
complaining about the coworker’s harassment. While her
employer was considering her appeal, the plaintiff “left work and
never returned.” (Id. at p. 922.)) The court concluded that,
“[b]ecause the evaluation could well have been changed on
appeal, it was not sufficiently final to constitute an adverse
employment action.” (Id. at p. 930.)
The differences between Brooks and this case are clear.
Brooks does not support the proposition that plaintiff’s demotion
was “subject to modification” and “not sufficiently final.” Plaintiff
had no internal appeal; his demotion, which was “effective
immediately,” followed a thorough investigation during which his
column was suspended and which reached negative conclusions
about plaintiff’s compliance with defendant’s professional
standards. Brooks does not support defendant’s claim.
The Dobbs-Weinstein case does not help defendant either.
Indeed, the Sixth Circuit effectively disavowed Dobbs-Weinstein
in White, supra, 364 F.3d 789.5 In White, the en banc court held
“that a thirty-seven day suspension without pay constitutes an
adverse employment action regardless of whether the suspension
is followed by a reinstatement with back pay.” (Id. at p. 791.)6
5 The White decision was affirmed in Burlington Northern &
Santa Fe Railway Co. v. White (2006) 548 U.S. 53, 57, 70-72.
6 White explained that in Dobbs-Weinstein (a case involving
denial of tenure), “[d]espite the facts that [the plaintiff] was
initially denied tenure and her employment ended temporarily,
this court held that [the plaintiff] had not suffered an adverse
employment action cognizable under Title VII. . . . We relied
upon the fact that Vanderbilt reversed the decision of its dean
and granted [the plaintiff] back pay as the result of its internal
grievance procedure. [Citation.] This reversal, we reasoned, was
50
In sum, there is no legal support for defendant’s assertion
that plaintiff suffered no adverse employment action as a matter
of law. Both the law and substantial evidence show otherwise.
Defendant offers no other basis for finding error in the trial
court’s denial of its JNOV motion on plaintiff’s discrimination
claims, and we therefore affirm the ruling.
b. The ruling denying a new trial on plaintiff’s
age and disability discrimination claims
Defendant contends the trial court should have granted a
new trial on liability for plaintiff’s discrimination claims
“untainted by [plaintiff’s] erroneous constructive discharge
theory.” Again, we find no merit in this claim.
As already stated, a trial court’s ruling on a new trial
motion “will not be disturbed unless a manifest and
unmistakable abuse of discretion clearly appears.” (Jiminez,
supra, 4 Cal.3d at p. 387.) The same is true of a ruling limiting a
new trial to the issue of damages. (Liodas v. Sahadi (1977) 19
Cal.3d 278, 285 (Liodas) [“ ‘A new trial limited to the damage
issue may be ordered where it can be reasonably said that the
the ‘ultimate employment decision.’ [Citation.] We held that
‘intermediate’ tenure decisions that are appealable through a
tenure review process cannot form the basis of a Title VII claim.”
(White, supra, 364 F.3d at pp. 800-801.) But, after reviewing
later authorities, the White court “now join[s] the majority of
other circuits in rejecting the ‘ultimate employment decision’
standard” (id. at p. 801), finding (among other reasons) that that
standard contravened the purpose of Title VII to make persons
whole for injuries suffered from employment discrimination.
(White, at p. 802; see id. at p. 803 [holding the plaintiff’s election
to challenge her suspension without pay “through an internal
grievance process does not render the decision [to suspend her]
not actionable under Title VII”].)
51
liability issue has been determined by the jury. An abuse of
discretion must be shown before a reviewing court will reverse
the trial judge’s decision.’ ”]; Leipert v. Honold (1952) 39 Cal.2d
462, 467 [“It is presumed that in passing upon the motion [the
trial judge] has weighed the evidence and the possibility of
prejudice to the defendant.].) But, “ ‘When a limited retrial might
be prejudicial to either party, the failure to grant a new trial on
all of the issues is an abuse of discretion.’ ” (Liodas, at p. 286.)
According to defendant, ordering a new trial only on
plaintiff’s noneconomic damages was an abuse of discretion
“because [plaintiff’s] erroneous constructive discharge theory was
completely intertwined with [plaintiff’s] claims for age and
disability discrimination, and the damages resulting from those
claims.” Defendant summarizes by saying that plaintiff’s
“constructive discharge theory was the sum and substance of his
liability case,” and “the jury’s liability finding on [plaintiff’s]
discrimination claims is inseparable from the jury’s conclusion
that [plaintiff] was constructively discharged.”
We are unable to find any factual or legal merit in
defendant’s argument.
First, as the special verdict form makes clear, the jury
could not have found a constructive discharge without first
finding that plaintiff’s age (or disability) was a substantial
motivating reason for any adverse employment action. So, in
that sense, plaintiff’s liability claims were related. But they were
not, in any sense of the word, “inseparable.” The fact that the
evidence was insufficient to sustain the constructive discharge
claim (which requires intolerable working conditions) does not
mean there was insufficient evidence that age (or disability) was
a substantial motivating reason for plaintiff’s demotion.
52
Second, the only evidence defendant cites in connection
with its contention that “it would be unjust to permit the jury’s
finding of liability for discrimination to stand” is evidence of the
emotional consequences to plaintiff of the loss of his position at
The Times. But this is evidence related to damages, on which
there will be a new trial, not evidence on liability issues. And
defendant does not claim there was any evidence admitted on the
constructive discharge issue that would have been inadmissible
on the discrimination issues. Defendant merely cites plaintiff’s
opening statement and closing arguments to the jury to the effect
that defendant’s conduct amounted to a constructive discharge.
But arguments are not evidence, and we see no basis to conclude
that counsel’s arguments somehow “tainted” the jury’s
discrimination findings, which were clearly separate from and a
precondition for its constructive discharge finding.
Third, and most importantly, defendant misconstrues the
meaning of the authorities it cites for the proposition that “where
the damages issues in a case are ‘so interwoven’ with those of
liability, a new trial on damages alone is impermissible.”
Defendant cites, for example, Hamasaki v. Flotho (1952) 39
Cal.2d 602, for the proposition that “situations may arise where
the issues are so interwoven that a partial retrial would be unfair
to the other party.” (Id. at p. 608.) Of course that is so. But in
Hamasaki, “the jury [had], by compromising the issues of liability
and damages, inextricably interwoven those issues, [so] a retrial
of the damages issue alone based on the erroneous assumption
that defendant’s liability has been determined would be
extremely unjust to him.” (Ibid.) This, of course, is not such a
case.
53
Nor is this a case like Liodas, supra, 19 Cal.3d at page 286,
or like any of the other cases defendant cites of “interwoven”
liability and damages. In Liodas, a new trial on all issues was
required because a partial new trial on damages would have been
prejudicial. Because of erroneous damages instructions, “it [was]
not possible to determine on what basis liability was predicated,”
and the matter of liability for numerous allegedly fraudulent
transactions was “substantially inseparable from that of damages
in the present posture of the case.” (Ibid.) The second jury
“would have no basis for determining which of the transactions
the first jury actually found fraudulent, and which, if any, it
found fair,” issues that “go to the heart of the liability question.”
(Ibid.)
Similarly, in Gasoline Products Co., Inc. v. Champlin
Refining Co. (1931) 283 U.S. 494, 500, “the question of damages
on the counterclaim is so interwoven with that of liability that
the former cannot be submitted to the jury independently of the
latter without confusion and uncertainty, which would amount to
a denial of a fair trial.” This was because, “upon the new trial,
the jury cannot fix the amount of damages unless also advised of
the terms of the contract; and the dates of formation and breach
may be material . . . .” (Id. at p. 499.) But it was “impossible
from an inspection of the present record to say precisely what
were the dates of formation and breach of the contract found by
the jury, or its terms.” (Ibid.)
This case is entirely different. Here, the issue of liability
for discrimination was plainly determined by the jury, and that
liability was independent of whether defendant’s discriminatory
conduct amounted to a constructive discharge. Defendant has
not shown how it could be prejudiced by a new trial, limited to
54
the amount of noneconomic damages that resulted from the
discrimination. The absence of a showing of prejudice or injustice
is fatal to its claim. There was no error in the trial court’s denial
of a new trial on plaintiff’s discrimination claims.
DISPOSITION
The orders are affirmed. The parties shall bear their own
costs on appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
55