Avi Kumin Discusses Impressive Employment Discrimination Verdict for LA Times Columnist

Katz, Marshall & Banks partner Avi Kumin published an article in Law360 on November 9, 2015, entitled “The Scoop On LA Times Employment Decision.”  The article discusses important lessons that can be learned from the recent $7.13 million jury verdict in the case against the prominent newspaper, found liable for discriminating against columnist T.J. Simers on the basis of his age and disability.  According to Mr. Kumin, the verdict "serves as a reminder that companies must take seriously legal protections against discrimination in the workplace, and that juries will act forcibly in employees’ favor when they sense injustice or shaky employer defenses."  The article has been reprinted in full below.


The Scoop On LA Times Employment Decision

Law360, New York (November 9, 2015, 10:25 AM ET) -- On Nov. 4, 2015, a Los Angeles Superior Court jury awarded former Los Angeles Times sports columnist T.J. Simers $7.13 million after finding that the newspaper had discriminated against him on the basis of his age and disability. In contrast to other recent prominent but ultimately unsuccessful employment cases, the Simers verdict serves as a powerful reminder that juries will hold employers accountable for discrimination, often with sizeable awards of damages.

Simers was a prominent sports journalist known for landing major interviews with big sports stars, and he had spent more than two decades with the L.A. Times. In March 2013, he suffered a transient ischemic attack, also known as a “mini-stroke,” and was subsequently diagnosed with complex migraine syndrome. After he returned to work and disclosed his health issues, his editors reduced his workload due to what they claimed was poor performance, despite having never previously complained about his performance during the 22 years he worked for the newspaper. The Times also accused Simers of the ethical lapse of failing to disclose a supposed conflict of interest, when he permitted a television producer to film an interview he conducted without first disclosing a financial relationship with that producer on another project. Internal emails produced during the trial demonstrated that the Times’ top editor wanted to replace Simers with a beat writer at the paper roughly half Simers’ age.

Although an internal investigation found that Simers had committed no ethical breaches, the newspaper nevertheless stripped him of his regular “Page Two” column and demoted him. The Times also suspended Simers and issued him a “final written warning” that threatened termination. Simers then resigned, claiming that the demotion and suspension represented a constructive discharge. A month later, he filed a lawsuit under the California Fair Employment and Housing Act, alleging that the Times’ actions against him constituted age and disability discrimination. FEHA largely mirrors the protections provided by the federal Age Discrimination in Employment Act and the Americans with Disabilities Act, but is broader in its coverage and, importantly, does not impose a cap on either emotional distress or punitive damages.

The remarkable jury verdict for Simers, following a six-week trial, reveals important lessons for both employee and management counsel, and for employers seeking to avoid similar claims within their own companies. First, jurors interviewed after the case expressed that they found particularly convincing the fact that after 20 years at the paper, Simers’ editors began critiquing his performance for the first time just weeks after he returned to work after his mini-stroke. For the jury, the claim by the Times that the timing was a coincidence or due to other unrelated factors did not ring true. Management attorneys, executives, and human resources officers must critically evaluate such sudden changes to the treatment of previously valued employees. This is especially true where the employee has a long record of positive performance, or where the timing between disability, protected medical leave, or other protected conduct is particularly close.

The Times also seems to have been tripped up by its own policies. Jurors found significant the fact that the newspaper had failed to follow its disciplinary policy, which generally required an initial warning to the employee prior to issuance of a final written warning. They also found it suspect that Simers had not been given a prior opportunity to address any alleged concerns. While a company’s failure to follow its own disciplinary policies may not be unlawful, corporate defendants may have an uphill battle explaining to a jury why it failed to follow its normal policies in a situation with an employee who had just revealed a serious medical condition. This does not necessarily counsel companies to abandon clear, written guidance to their employees about disciplinary expectations or processes, but it suggests an expectation that employers as well as employees will then follow those policies.

Outside of its sheer size, the verdict was also noteworthy because of the way the damages were broken down. The award included a total of $2.13 million in economic damages, and a staggering $5 million to compensate Simers for his emotional pain and suffering. Even though Simers was in his early 60s at the time of his constructive discharge, the jury still awarded him $1.8 million for front pay losses. This verdict is important because it impresses upon employers and their attorneys that the evaluation of the potential value of an employment claim does not end with the damage suffered by the employee thus far, or even with the total economic damages the employee will suffer. As this verdict aptly demonstrates, noneconomic damages can form the majority of a plaintiff’s award in a case, especially with claims where such awards have not been capped by the legislature — such as certain state law anti-discrimination statutes, certain whistleblower statutes, race discrimination claims under 42 U.S.C. § 1981, and many common law claims such as wrongful termination in violation of public policy. At the same time, plaintiffs attorneys and employees must remember that a $5 million award for compensatory damages is well outside the norm, and may be vulnerable to remittitur or on appeal.

Finally, the large employee verdict also serves as a reminder that certain factual hurdles are far from insurmountable in many cases. Simers admitted during his testimony that no Times employee had made discriminatory comments regarding either his age or his disability. The jury nevertheless viewed the circumstantial evidence as significant proof of discrimination. Similarly, the legal standard for a constructive discharge case is a demanding one, requiring proof that the employer intentionally or knowingly permitted working conditions so intolerable that a reasonable person in the employee’s position would be compelled to resign. The Times highlighted this issue by noting that it had not terminated Simers and wanted him to stay. Despite this high evidentiary bar, the jury not only viewed the actions against Simers as adverse, but as warranting his resignation.

This verdict is welcome news after a year in which the high-profile employment discrimination decisions seemed to be largely coming down in favor of employers. In March 2015, a San Francisco jury returned a verdict finding that the venture capital firm Kleiner Perkins Caufield & Byers LLC had not engaged in sex discrimination or unlawful retaliation against Ellen Pao. Later this summer, the First Circuit Court of Appeals upheld the dismissal of former associate John Ray III in his race discrimination and retaliation lawsuit against Ropes & Gray LLP. The Simers verdict serves as a reminder that companies must take seriously legal protections against discrimination in the workplace, and that juries will act forcibly in employees’ favor when they sense injustice or shaky employer defenses.

—By Avi Kumin, Katz Marshall & Banks LLP

Avi Kumin is a partner at Katz Marshall & Banks, a Washington, D.C.-based firm that represents employees in whistleblower and employment cases.  
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.