The Los Angeles Times can’t escape a state jury’s finding that it demoted a former longtime sports columnist because of his age and disability.
A state appeals court Jan. 5 rejected the newspaper’s contention that T.J. Simers didn’t show he was mistreated because of his age or disability because it merely proposed temporarily reassigning him to a less prestigious reporter position. Simers, who in 2013 at age 62 was diagnosed with complex migraine syndrome, never worked in the reporter position, so the proposed reassignment didn’t amount to an actionable adverse job action, the Times said.
But Simers was told the switch was part of a final written warning regarding his performance and that it was “effective immediately,” the appeals court said. No reasonable person could view the paper’s move as a proposal to reassign Simers that never took effect, the court said.
That the jury mistakenly found the demotion from the columnist position and other mistreatment meant Simers was essentially forced to quit—what the law calls a “constructive discharge”—wasn’t a reason to overturn its finding for Simers on his age and disability discrimination claims under California anti-bias law, the appeals court said. It said Simers clearly presented his constructive discharge allegations to the jury as a claim separate from his disability and age bias allegations.
The jury in November 2015 awarded Simers $7.13 million, finding the paper liable for age and disability discrimination and for constructively discharging Simers. But the trial judge later found the evidence didn’t prove a reasonable person in Simers’ shoes would have felt he had no choice but to quit. The judge struck the $2.1 million in economic damages the jury awarded Simers on that claim and ordered a retrial on the $5 million in noneconomic damages he was awarded.
The appeals court affirmed that a retrial is still needed on the issue of noneconomic damages. It agreed with the trial judge that there was no way to determine how much of that award could be attributed to the jury’s mistaken constructive discharge finding and how much was attributable to the disability and age bias findings.
The case is Simers v. L.A. Times Commc’ns, LLC, 2018 BL 4335, Cal. Ct. App., 2d Dist., No. B269565, post-verdict rulings affirmed 1/5/18.