Wednesday, September 8, 2010
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Impairment Resulting From Stroke Held Disability Under FEHA
Man Who Needed Cane Was Disabled Because Walking Is ‘Major Life Activity’ Under State Law, Panel Declares
By KENNETH OFGANG, Staff Writer
A fired sales executive who had to walk with a cane and suffered from a speech impairment after suffering a stroke was disabled within the meaning of the Fair Employment and Housing Act, the Fourth District Court of Appeal ruled yesterday.
Div. One overturned a summary judgment in favor of Taylor-Listug, Inc., which manufacturers acoustic and electric guitars under the name Taylor Guitars.
San Diego Superior Court Judge Laura W. Halgren had ruled that Robert Sandell, the company’s vice president of sales from 2004 to 2007, lacked a prima facie case of age or disability discrimination, but the appellate panel disagreed.
Sandell suffered a stroke about six months after he joined the company. He was out of work for two months, and worked part time for two more months before returning to full-time work in December 2004.
Multiple Problems
He testified in his deposition that he had problems with speech and balance, and had to walk with a cane and spoke slower, after the stroke. He claimed that Kurt Listug, the company’s co-founder and chief executive officer, told him that if he did not make a full recovery, he could be fired, or demoted, or asked to take a pay cut.
The El Cajon-based company contended that Sandell was fired—days after his 60th birthday—because of declining sales. The plaintiff argued that guitar sales suffered in general during the years he was at Taylor, and that the company had seen a smaller decline than some of its competitors.
Sandell also noted that his annual performance reviews showed he was meeting or exceeding expectations in all areas, although Listug suggested he needed to show “more enthusiasm” and to be “more outgoing and friendly.”
To show a prima facie case of disability discrimination, Justice Cynthia Aaron explained, the plaintiff must show that he is disabled, meaning that his condition “limits a major life activity,” and that he was qualified to perform the essential functions of his job. Taylor-Listug did not dispute that Sandell could do the job, but argued that he was not disabled, and alternatively that if he was, the company did not know it.
Regulation Cited
The justice disagreed, citing a Fair Employment and Housing Commission regulation for the proposition that “walking is a major life activity under FEHA.” The plaintiff, she said, presented ample evidence that his ability to walk, as well as his speech, was affected by the stroke.
She declined to rely on a Ninth Circuit case, which said the plaintiff’s need to use a walking cane did not make her disabled under California law. Aaron noted that the observation was dictum and said it did not properly interpret California law, which the state Supreme Court has held uses a less stringent standard than federal law in determining what constitutes a disability.
The claim that the company did not know the plaintiff was disabled fails on summary judgment, the justice added, in light of evidence that Sandell’s co-workers were well aware that he walked with a cane and spoke slower after his stroke.
Aaron went on to reject the argument that the plaintiff’s prima facie case was rebutted by the company’s showing of a valid, non-discriminatory reason for the firing. The evidence regarding Sandell’s performance, the justice explained, is capable of more than one explanation and did not support summary judgment.
The case is Sandell v. Taylor-Listug, Inc., 10 S.O.S. 5306.
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