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,

Plaintiff and Appellant,

v.

LOS ANGELES TIMES 

COMMUNICATIONS, LLC,

Defendant and Appellant.

 B269565

 (Los Angeles County

 Super. Ct. No. BC524471)

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.

__________________________
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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 
4

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 
6

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). 
10

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 
11

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. 
13

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 “highpowered 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. 
15

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 
16

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.
17

“ ‘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 
18

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.” 
19

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.” 
20

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 
21

“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 fatherdaughter 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 
22

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 
23

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 emails 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 
24

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.” 
25

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 
26

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.” 
27

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 
28

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 
29

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 
30

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 
31

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 
32

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 
33

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.
34

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 
35

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 
36

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 
37

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.”)
38

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). 
39

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 
40

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 
41

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 
42

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 
43

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 
44

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).
45

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 
46

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.”
47

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 
48

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 
49

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.
50

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 
51

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”].) 
52

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.
53

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. 
54

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 
55

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.