Simers v. Los Angeles Times Communications LLC

Facts

T.J. Simers was, by the court’s own description, “a well-known and sometimes controversial sports columnist” for the Los Angeles Times, a position he had held since 2000 and for which he had received “uniformly favorable and often exceptional performance reviews.” (Simers, supra, 18 Cal.App.5th at p. 1250.) He wrote three columns each week. On March 16, 2013, when he was 62 years old, plaintiff suffered a neurological event with “stroke-like symptoms” and was hospitalized; doctors initially suspected a transient ischemic attack, and he was later diagnosed with complex migraine syndrome. (Id. at pp. 1250, 1254.) His editors knew of the event and responded “with statements of concern and support,” one writing that “[w]e need another 20 years of columns out of you before you hang it up.” (Id. at pp. 1254–1255.)

Beginning in late May 2013, the relationship soured. The Times reduced plaintiff’s columns from three per week to two; criticized a “string of columns”; and conveyed managing-editor displeasure that his writing “had become sloppy.” (Simers, supra, 18 Cal.App.5th at pp. 1255–1257.) Days later, a Sports Business Journal article reported that a Hollywood producer was “developing a TV comedy loosely based on the life” of plaintiff, and that a viral video of plaintiff’s daughter — produced in connection with one of plaintiff’s columns — had helped “create buzz” for the project. (Id. at pp. 1260–1261.) Viewing this as a possible ethical breach, defendant suspended plaintiff’s column and launched an investigation. (Id. at pp. 1251, 1261–1262.) The internal investigators ultimately “turned up no evidence of serious breaches” of the ethics guidelines by plaintiff, though management concluded he had been “untruthful … about several things.” (Id. at pp. 1263, 1264.)

On August 8, 2013, after the investigation and several meetings, defendant issued a “final written warning” that removed plaintiff from his columnist position and made him a senior reporter — “Reporter II” — with “no reduction in [his] salary at this time.” (Simers, supra, 18 Cal.App.5th at pp. 1251, 1265–1266.) Plaintiff never returned to work; four days later his lawyer advised The Times that plaintiff considered himself constructively discharged. (Id. at p. 1266.) On September 4, 2013, The Times asked plaintiff to resume his column, but he distrusted the offer and, by September 9, had accepted a columnist position at the Orange County Register. (Id. at pp. 1251, 1266.)

The statutory and doctrinal framework. Plaintiff’s claims arose under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), which forbids age and disability discrimination in employment. The opinion does not quote the operative text of Government Code section 12940; it instead frames the dispositive elements through the governing case law. On the discrimination claims, the court accepted the trial court’s finding that there was “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.” (Simers, supra, 18 Cal.App.5th at p. 1271.) The court treated the “substantial motivating reason” formulation as the operative causation standard but did not, in its analysis, attribute the phrase to any named authority.

The constructive-discharge standard. The court drew the controlling test from Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238. “Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign.” (Simers, supra, 18 Cal.App.5th at p. 1269, quoting Turner, at pp. 1244–1245.) To prevail, “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.’” (Id. at pp. 1269–1270, quoting Turner, at p. 1251.) Critically, “adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable,” and “a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge.” (Id. at p. 1270, quoting Turner, at p. 1247.) The test is objective: “the proper focus is on the working conditions themselves,” and “[b]ruised egos and hurt feelings are not part of the Turner equation.” (Ibid., quoting Gibson v. Aro Corp. (1995) 32 Cal.App.4th 1628, 1637.)

Procedural history

Plaintiff sued The Times on October 15, 2013. (Simers, supra, 18 Cal.App.5th at pp. 1251, 1267.) 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.” (Id. at p. 1251.) The jury awarded $2,137,391 in economic damages — comprising $330,358 in past and $1,807,033 in future economic loss — “for harm caused by his constructive termination,” and $5 million in noneconomic damages ($2.5 million past and $2.5 million future). (Id. at pp. 1251, 1268.) Significantly, “[t]he 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,” but the same 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.” (Id. at p. 1251.) The jury found plaintiff did not prove malice, oppression, or fraud by clear and convincing evidence. (Id. at p. 1268.)

Postjudgment, the trial court “granted defendant’s motion for judgment notwithstanding the verdict (JNOV) on plaintiff’s constructive termination claim,” but “otherwise denied JNOV, finding substantial evidence supported the verdict on plaintiff’s age and disability discrimination claims.” (Simers, supra, 18 Cal.App.5th at p. 1251.) 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 discrimination but not because of the constructive discharge.” (Ibid.) It “denied defendant’s motion for a new trial on plaintiff’s discrimination claims.” (Ibid.) Both sides appealed: plaintiff challenged the orders granting JNOV and a new trial on damages, and defendant challenged the orders denying JNOV and a new trial on the discrimination claims. (Id. at p. 1269.) Each party was thus an “Appellant.”

Issue

The cross-appeals presented three questions. First, on plaintiff’s appeal: where the jury could find that age or disability discrimination was a substantial motivating reason for an employee’s demotion, does evidence that the employee resigned in response to criticism, a suspension, an investigation, and a demotion with a performance plan suffice to establish a constructive discharge — or does the objective Turner standard require something more? Second: was it error to order a new trial on all damages where the noneconomic award could not be apportioned between the surviving discrimination theory and the defunct constructive-discharge theory? Third, on defendant’s appeal: did plaintiff suffer an “adverse employment action” at all — given that the demotion was, defendant said, a “proposed reassignment” that “never took effect” — and if so, was the trial court required to grant a new trial on discrimination liability rather than limit the retrial to damages?

Holding

Reasoning

The standard of review channeled each ruling. The court reviewed the JNOV ruling for substantial evidence: JNOV “may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support,” and on appeal the question “is whether any substantial evidence — contradicted or uncontradicted — supports the jury’s conclusion.” (Simers, supra, 18 Cal.App.5th at p. 1269.) The new-trial rulings drew the deferential abuse-of-discretion standard, under which an order “will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears,” a deference that is “particularly true when the discretion is exercised in favor of awarding a new trial.” (Id. at pp. 1275–1276.) These standards did real work: they meant the same evidentiary record could sustain both a discrimination verdict (substantial evidence supported it) and a JNOV on discharge (no substantial evidence supported the heightened Turner showing).

Discriminatory motive does not transform standard discipline into a constructive discharge. The heart of the opinion is its insistence that motive and intolerability are distinct inquiries. The court accepted that age and disability were substantial motivating reasons for plaintiff’s treatment, but held that “the discriminatory motive for plaintiff’s working conditions has no bearing on whether the evidence was sufficient to establish constructive discharge.” (Simers, supra, 18 Cal.App.5th at p. 1271.) Quoting Cloud v. Casey, the court framed the question as “not whether there was [unlawful] discrimination … but whether the discriminatory working conditions were so extreme as to coerce a reasonable employee to resign.” (Ibid.) Plaintiff’s ten enumerated “intolerable conditions” — the column reduction, criticisms that he was a “public embarrassment,” the “unreasonable 55 days” suspension, the “[f]alse accus[ations] of unethical conduct,” the demotion, the performance plan, and the belated offer to return him — failed “as a matter of law,” because they “consist only of plaintiff’s subjective reaction to standard employer disciplinary actions — criticism, investigation, demotion, performance plan — that, even if undertaken for reasons … later found to include discrimination, are well within an employer’s prerogative for running its business.” (Id. at pp. 1270–1271.)

The investigation was legitimate, and several alleged harms had no evidentiary footing. The court stressed that the Sports Business Journal article “provided a legitimate basis for an inquiry,” such that “no reasonable juror could conclude that defendant was not entitled to undertake an investigation.” (Simers, supra, 18 Cal.App.5th at p. 1271.) Plaintiff’s claims of a damaged reputation and severed source relationships “find no support in the evidence”; what the record showed was “plaintiff’s own stress and concern,” not “damage to his reputation or to his relationships with his sources,” and there was “no evidence that … confidentiality was breached at any time.” (Id. at pp. 1272–1273.) Criticism of job performance, “even ‘unfair or outrageous’ criticism,” does not create intolerable conditions, and a demotion — together with the performance plan that is its “natural accompaniment” — “cannot by itself trigger a constructive discharge.” (Id. at pp. 1272, 1273.)

The court engaged and distinguished plaintiff’s strongest authority. Plaintiff relied on Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156 for the proposition that a demotion “coupled with other circumstances” can amount to a continuous pattern of mistreatment, and that courts should not “slice into separate incidents” evidence of a campaign of harassment. (Simers, supra, 18 Cal.App.5th at p. 1273.) The court answered that “[t]his case is nothing like Thompson,” which involved evidence that a supervisor “intentionally had made it impossible for [the plaintiff] to do her job through a continuous course of intimidation and harassment.” (Id. at pp. 1273–1274.) Here, by contrast, the record showed “meetings conveying criticisms,” a “suspension … while an investigation was conducted,” and an “ultimate demotion and final warning,” with “no evidence that at any time … he was the object … of any criticism, hostility or harassment.” (Id. at p. 1274.) The objective test, the court added, “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.” (Id. at pp. 1274–1275.)

The demotion was a genuine adverse employment action. Turning to defendant’s appeal, the court rejected the characterization of the demotion as a “proposed reassignment” that “never took effect.” On August 8, 2013, plaintiff “was told, both orally and in a ‘final written warning,’ that he was no longer a columnist, ‘effective immediately.’” (Simers, supra, 18 Cal.App.5th at p. 1279.) “A job reassignment may be an adverse employment action when it entails materially adverse consequences,” and here “there was ample evidence that the position of columnist was significantly different from and far more prestigious than that of reporter.” (Id. at p. 1279.) The change “was plainly a demotion” and “a tangible injury supporting a claim of adverse employment action.” (Id. at pp. 1279–1280.) Defendant’s argument that the demotion was “not sufficiently final” because The Times later offered to restore the column failed: “[t]he 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,” and the “belated offer cannot change the nature of defendant’s employment action.” (Id. at pp. 1280–1281.) The court distinguished Brooks v. City of San Mateo (a non-final performance review “subject to modification” through an internal appeal) and noted that the Sixth Circuit had “effectively disavowed” Dobbs-Weinstein in White. (Id. at pp. 1281–1282.)

A damages-only retrial was a proper exercise of discretion — and the indivisibility of the noneconomic award compelled it. On plaintiff’s challenge to the new-trial order, the court agreed with the trial court 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.’” (Simers, supra, 18 Cal.App.5th at pp. 1278.) The record contained evidence both of distress during the column suspension and of worsened depression “after he left The Times”; defendant’s own expert tied plaintiff’s reaction to “the loss of prestige and recognition due to his decision to no longer work” there, and plaintiff’s expert allowed that “the fact of quitting … did contribute to the depression worsening.” (Id. at pp. 1268, 1277–1278.) Because the constructive discharge was, “as a matter of law,” a “voluntary, not coerced” resignation, the noneconomic award could not stand undisturbed. (Id. at p. 1277.)

Liability and damages were related but not “inseparable.” On defendant’s mirror-image argument that a new trial should have swept in liability, the court drew a careful line. “[A]s 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.’” (Simers, supra, 18 Cal.App.5th at p. 1283.) “The fact that the evidence was insufficient to sustain the constructive discharge claim … does not mean there was insufficient evidence that age (or disability) was a substantial motivating reason for plaintiff’s demotion.” (Ibid.) The court distinguished the “interwoven” cases — Hamasaki, Liodas, and Gasoline Products — as involving records in which the basis for liability itself could not be reconstructed; here, by contrast, “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.” (Id. at p. 1284.) Defendant’s failure to show prejudice was “fatal to its claim.” (Ibid.)

Significance

Simers is a leading modern statement of the gap between discriminatory motive and constructive discharge. The opinion’s central — and most quotable — holding is that “the discriminatory motive for plaintiff’s working conditions has no bearing on whether the evidence was sufficient to establish constructive discharge.” (Simers, supra, 18 Cal.App.5th at p. 1271.) The two inquiries answer different questions: the FEHA discrimination claim asks whether a protected characteristic was a substantial motivating reason for an adverse action, while constructive discharge asks the separate, objective question whether the working conditions were so “unusually aggravated” or marked by a “continuous pattern of mistreatment” that a reasonable person would be compelled to resign. (Id. at pp. 1270–1271.) A plaintiff can win the first and lose the second on the very same facts — exactly what happened here.

The decision also crystallizes a “standard disciplinary procedures” safe harbor for employers. Criticism, suspension pending a legitimate investigation, demotion, and a performance plan — even when a factfinder concludes they were tainted by bias — do not, without “unusually aggravated” administration or a “pattern of continuous mistreatment,” add up to a coerced resignation. (Simers, supra, 18 Cal.App.5th at pp. 1271, 1273.) The opinion is equally notable for its remedial holding: it confirms that a trial court may surgically order a new trial limited to damages, leaving an intact discrimination-liability finding in place, where the liability question “was plainly determined by the jury” yet the damages award cannot be apportioned among theories. (Id. at pp. 1283–1284.) Practitioners cite Simers both for the substantive constructive-discharge standard and as a caution about special-verdict architecture that blends recoverable and unrecoverable noneconomic damages.

Key quotes

“[T]he discriminatory motive for plaintiff’s working conditions has no bearing on whether the evidence was sufficient to establish constructive discharge.” (Simers, supra, 18 Cal.App.5th at p. 1271.)

“[T]he 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.” (Id. at p. 1273.)

“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 … .” (Id. at pp. 1274–1275.)

“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.” (Id. at p. 1283.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The opinion leaves the outer boundary of the demotion principle unsettled. The court reaffirmed that a “demotion cannot by itself trigger a constructive discharge” (Simers, supra, 18 Cal.App.5th at p. 1273), but it did not have to decide — and did not decide — when a demotion becomes “so drastic or punitive as to constitute a constructive discharge,” a question the Supreme Court had expressly reserved in Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 468, footnote 3, and which the Simers court quoted without resolving. (Id. at p. 1270.) How far a demotion-plus-aggravating-circumstances theory can be pressed after Simers — particularly given the court’s acknowledgment that a “continuous course” of harsh treatment “uncorrected by management, can constitute objectively intolerable working conditions” (id. at p. 1274) — remains a fact-intensive frontier.

A second open question is remedial and procedural. Because the demotion was held to be an adverse employment action “effective immediately,” the court found it “unnecessary to consider the parties’ debate over whether defendant’s various actions preceding the demotion … amounted to adverse employment actions.” (Simers, supra, 18 Cal.App.5th at p. 1281, fn. 4.) The opinion therefore does not resolve whether a column reduction, unwarranted criticism, or a suspension pending investigation can independently qualify as actionable adverse actions under FEHA — a recurring question the case sidesteps. Nor does the affirmed damages-only retrial decide how, on remand, a second jury is to isolate the noneconomic harm caused by the discriminatory demotion alone from the distress flowing from a resignation the law deems voluntary.