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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.
But how much T.J. Simers should recover for the discrimination is still up in the air as a retrial is required on his damages, the California Court of Appeal said Jan. 5. The jury awarded Simers $7.13 million, but the trial judge later partly overturned the jury’s findings and ordered a new trial to determine how much Simers should recover for the emotional distress and other noneconomic harm he suffered as a result of the discrimination.
“I think we’ll do as well or better than before,” Simers’ attorney Carney R. Shegerian told Bloomberg Law Jan. 8 regarding his client’s prospects at the retrial. The jury had awarded $5 million in noneconomic damages at the first trial, and “I was a little disappointed” with the size of that award given the havoc the discrimination wreaked on Simers emotionally and otherwise, he said.
He said Simers had worked “all his life” to rise to the level of a Times columnist and was at “the apex of his career” when the discrimination occurred. Shegerian is with Shegerian & Associates Inc. in Santa Monica, Calif.
“We are pleased that the court of appeal agreed with us and ruled in our favor against Mr. Simers’ claim of constructive termination,” Hillary Manning, director of communications at the Times, told Bloomberg Law. “We are hopeful that we can bring this matter to a fair conclusion.”
The appeals court rejected the newspaper’s contention that Simers didn’t show he was mistreated because of his age or disability, affirming the trial judge’s denial of judgment notwithstanding the verdict on those claims.
The paper argued that it merely proposed temporarily reassigning him to a less prestigious reporter position after finding he had violated the paper’s ethics policy in a separate matter. The Times suspended and reassigned Simers in 2013 after an investigation into a video he had made to promote a TV show about his life.
Simers, who at age 62 was diagnosed with complex migraine syndrome, never worked in the reassigned position and instead left the paper. The proposed reassignment therefore 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.
The jury in November 2015 found the Times liable for age and disability discrimination and for forcing Simers to resign. 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—what the law calls a “constructive discharge.”
The trial judge struck the $2.1 million in economic damages the jury awarded Simers on his constructive discharge claim and ordered a retrial on the $5 million in noneconomic damages he was awarded.
That the jury mistakenly found the demotion and other mistreatment meant Simers was forced to quit 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. Simers clearly presented his constructive discharge allegations to the jury as a claim separate from his disability and age bias allegations, it said.
A new trial is needed on the issue of noneconomic damages because there was no way for the trial judge 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 appeals court said.
Simers is looking forward to a retrial on his noneconomic damages, his attorney said. “We hope to have a trial date set within the next six months,” Shegerian said.
The columnist sued the Times in February 2014, asserting a variety of claims under California’s Fair Employment and Housing Act, the California Family Rights Act, and state public policy and contract laws. He had been with the paper for 23 years and his work had been uniformly praised by managers as “exceptional,” “brilliant,” and “unique among U.S. sports columnists,” according to court documents.
However, after Simers experienced what was first thought to be a “mini-stroke” in 2013, Times management said his performance grew “sloppy” and that some of his interview techniques “reflected poorly on the paper,” the appeals court’s opinion said. The paper at first reduced his number of weekly columns from three to two, despite his objections. Simers said he was told “to get physically right.”
Simers’ column was later suspended and he ultimately was reassigned to a reporter position after an investigation into a video he produced with professional basketball player Dwight Howard and his daughter to allegedly promote a TV show about Simers’ life.
Justice Elizabeth A. Grimes wrote the appeals court’s opinion, which was joined by Justices Patricia A. Bigelow and Madeleine I. Flier.
David M. Axelrad and Scott P. Dixler of Horvitz & Levy in Burbank, Calif., Emilio G. Gonzalez and Evelyn F. Wang of Davis Wright Tremaine in Los Angeles, and Linda Miller Savitt and Else Banuelos of Ballard Rosenberg Golper & Savitt in Encino, Calif., represented the Times.
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 .
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Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.
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