Employment Law Case Notes

• Jurisdiction: California,United States,Federal
• Author: By Anthony J. Oncidi
• Publication year: 2018
• Citation: Vol. 32 No. 3

Employment Law Case Notes

By Anthony J. Oncidi

Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@ proskauer.com. (Tony has authored this column without interruption for every issue of this publication since 1990.)

Dodd-Frank Anti-Retaliation Protection Does Not Apply Absent Prior Notice to the SEC

Digital Realty Trust, Inc. v. Somers, 583 U.S.___, 138 S. Ct. 767 (2018)

Paul Somers alleged that his former employer, Digital Realty, terminated his employment after he reported to senior management suspected securities-law violations by the company. Somers neither alerted the Securities and Exchange Commission (SEC) of his concerns prior to his termination, nor did he file an administrative complaint within 180 days of his termination, rendering him ineligible for relief under the Sarbanes-Oxley Act. After Somers filed this whistleblower case against Digital Realty, the company filed a motion to dismiss on the ground that Somers did not qualify as a whistleblower, because he had failed to report any alleged legal violations to the SEC. In reversing the Ninth Circuit, the United States Supreme Court in this opinion held that "Courts are not at liberty to dispense with the condition—tell the SEC—Congress imposed" before filing suit under the statute.

Former Los Angeles Times Columnist's Age/Disability Discrimination Judgment Upheld; New Trial on Damages Ordered

Simers v. Los Angeles Times Commc'ns, LLC, 18 Cal. App. 5th 1248 (2018)

T.J. Simers, a well-known sports columnist for the Los Angeles Times, alleged disability and age discrimination and constructive discharge. Simers, who had suffered a "mini-stroke" from which he quickly recovered, quit his job after his column was suspended and he was reprimanded and demoted for a possible ethical breach. The jury awarded Simers over $2.1 million in economic damages and $5 million in emotional distress damages. The trial court granted the Times' motion for judgment notwithstanding the verdict (JNOV) on Simers' constructive termination claim, but otherwise denied the JNOV, finding substantial evidence supported the verdict on plaintiff's age and disability discrimination claims. The trial court also granted the Times' motion for a new trial on all damages because it was not possible to determine what amount of noneconomic damages the jury had awarded because of the discrimination but not because of the constructive discharge. The court of appeal affirmed the trial court's judgment, holding that none of the circumstances relied upon by Simers to justify his resignation, "alone or in combination, amount to working conditions that are either unusually aggravated or a continuous pattern of mistreatment." In addition to affirming the grant of the new trial motion as to damages, the appellate court also affirmed the denial of the Times' JNOV motion as to age and disability discrimination.

$48,000 Judgment Affirmed in Favor of Former Parks & Recreation Employee

Hurley v. California Dep't of Parks & Recreation, 20 Cal. App. 5th 634 (2018)

Delane Hurley worked as a staff services analyst who sued her employer, the Department of Parks & Recreation (DPR), and her former supervisor, Leda Seals, for harassment based on sex and sexual orientation in violation of the Fair Employment and Housing Act (FEHA)...