A judge said Wednesday he is inclined to allow a former advertising creative lead who worked on some of Apple’s major ad campaigns to move forward with his age discrimination lawsuit against his former agency, TBWA Worldway Inc., but said he wanted to study some issues further before making a final ruling.
Los Angeles Superior Court Judge Robert Draper wrote in a tentative ruling issued before the hearing that 61-year-old Duncan Milner’s claims for associational discrimination, intentional infliction of emotional distress and one of his retaliation allegations all need shoring up if they are to remain in the case.
He said he was leaning toward finding that the facts supporting Milner’s other claims, including hostile work environment and wrongful termination, were sufficient for now. But after hearing arguments, the judge said he wanted to look at some of the statutes again, as well as the alleged liability of some of the individual TBWA executives named as co-defendants in the case.
Milner began working for TBWA in 1987 and worked continuously for the company, except for a one-year hiatus in 1988, up until his alleged wrongful termination in 2019.
Milner would have received $312,000 in vested TBWA stock had he remained employed through 2021, according to his court papers.
Attorney Aaron Lubeley, on behalf of TBWA, told the judge that the allegations in Milner’s complaint are vague on many levels. He said, for example, that there was nothing in the lawsuit showing any repeated harassment of Milner by anyone. He also said the complaint had few details backing the claims against the executives.
Lubeley also argued that some of the terms and narratives Milner maintains he heard in the workplace, such as the need to be more “digital focused” and to hire “digital natives,” should not be construed as ageist. Lubeley said no executive ever told Milner he should be replaced by a “digital native,” a term that usually refers to younger people who were brought up during the age of digital technology.
Lawyers for Milner maintain that there is ample evidence supporting all of their client’s claims against the company and the executives.
Milner played a crucial role in Apple history, working on the “Mac vs. PC” campaign, as well as the Silhouette ads for the iPod. He also was involved with the “Shot on iPhone” campaign. He was taken off the Apple account in 2016.
According to Milner’s lawsuit, the late Apple co-founder Steve Jobs credited Milner’s team with a billion-dollar idea for his iPod ads.
“For years thereafter, Milner received high praise from Jobs for his iconic `Mac vs. PC’ campaign, which was named `Campaign of the Decade’ by Adweek,” according to the lawsuit.
“As his health worsened, Jobs became more selective about those he would allow to bring work to him at home,” the lawsuit said. “But Milner was always included in the select few who went to Jobs’ home to meet with him.”
Milner rose to the position of TBWA’s chief creative officer in 2009, but was replaced in the role in 2016. He was then transitioned to a new job as global chief creative president of MAL\For Good. TBWA Worldwide later said that MAL\For Good struggled to be profitable as a stand-alone business entity and that after a reorganization, Milner’s position was eliminated.
Milner maintains he was originally offered either a 50% pay cut or a severance package. However, in a meeting last June with Kristen Clark, a chief talent officer for TBWA\Media Arts Lab, and Michael Claypool, one of the executives named as a defendant, he was told there were no jobs available to him, the suit alleges.
“It’s starting to look and smell like age discrimination,” Milner told Clark, according to the suit.
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