Stroke victim gets his day in court
When you’re 60 years old and recovering from a stroke, keeping a job can be a dicey proposition.
So employment attorneys dealing with the troubles of an aging workforce should take note of a decision handed down yesterday that allows a former sales executive for a top acoustic guitar company to tell his tale of woe to a jury.
Taylor-Listug, Inc. is one of the preeminent makers of acoustic guitars in the country. The California company’s guitars are played by such artists as Dave Matthews, Jason Mraz, and Prince.
In February 2004, Taylor-Listug hired Robert Sandell as vice-president of sales. Sandell had 30 years’ experience in the music business, so it seemed like a perfect match.
Shortly after being hired, Sandell received chiropractic treatment and during the course of that treatment he suffered a stroke.
After the stroke, Sandell had balance problems and needed a cane to walk. His speech was also noticeably slower.
In October 2004, Sandell returned to work on a part-time basis. He was working full time by December 2004.
But Sandell’s remaining time at Taylor-Listug wasn’t going to be particularly enjoyable.
One day he had a sit down with Kurt Listug, one of the founders of Taylor-Listug and the company’s chief executive officer.
Sandell later testified that Listug “came in my office … and closed the door and said that if I didn’t make a full recovery, that the company had the right to fire me or demote me and reduce my salary.”
Sandell claimed that at another meeting Listug asked him when he was going to get rid of the cane and “drop the dramatization.”
Sandell turned 60 in October 2007 and a few days after his birthday he was fired.
Taylor-Listug argued that the termination was justified because Sandell had failed to breathe fire into its sales staff as expected and the company had experienced a drop in sales.
According to Sandell, he had been hired to implement a sophisticated marketing plan, not as a “cheerleader” for the Taylor-Listug sales force. Sandell claimed that the drop in sales reflected a downward trend in the industry and that, in fact, he had done a pretty good job in minimizing losses.
Claiming that he was the victim of disability and age discrimination, Sandell sued Taylor-Listug in state court.
Taylor-Listug argued that Sandell could not show that he was “disabled” because he testified “that no stroke-related medical issues kept him from doing his work at Taylor Guitars.”
But yesterday the California Court of Appeal, reversing a trial court, concluded that “[o]ne could reasonably infer from evidence that a person uses a cane to walk that he needs the cane to walk, and is therefore limited with respect to a major life activity.”
In addition, the court concluded that Sandell could show he was disabled based on evidence that the stroke caused him to speak slowly and with more deliberation.
Getting to the heart of the matter, the court proceeded to decide that there was sufficient evidence to show that Taylor-Listug’s proffered non-discriminatory reasons for terminating Sandell’s employment were pretextual.
Sandell’s evidence at least made it a debatable point as to whether his performance as vice president of sales failed to meet legitimate expectations.
But what really seemed to clinch it for the court were the comments allegedly made by Kurt Listug concerning Sandell’s cane.
The trial court had dismissed the comments as “stray remarks,” but the Court of Appeal said that they furnished Sandell with direct evidence of discriminatory intent.
The court said that “the remark that Taylor-Listug could fire Sandell if he did not make a complete recovery from his stroke provides strong evidence that Listug — the person who made the decision to terminate Sandell’s employment — was motivated to do so by the fact that Sandell had not fully recovered from his stroke. …
“The comment regarding when Sandell would ‘drop the dramatization’ also creates a strong inference that Listug was annoyed with Sandell’s use of a cane, and that he expected Sandell to conduct himself in a manner that would not evidence the existence of a disability. A reasonable fact finder could infer that the fact that Sandell continued to ‘act’ disabled caused Listug to look unfavorably on Sandell, and ultimately led to Sandell’s termination.” (Sandell v. Taylor-Listug)
- Pat Murphy
