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Sandell v. Taylor-Listug

September 7, 2010


APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Reversed and remanded for further proceedings. (Super. Ct. No. 37-2008-00064342-CU-OE-EC).

The opinion of the court was delivered by: Aaron, J.



Plaintiff Robert Sandell appeals from a judgment entered after the court granted summary judgment in favor of defendant Taylor-Listug, Inc. (Taylor-Listug) on Sandell's claims for disability and age discrimination. Sandell was employed as vice-president of sales at Taylor-Listug, a guitar manufacturer, from 2004 to 2007.

Approximately six months into his employment at Taylor-Listug, Sandell suffered a stroke after receiving a chiropractic adjustment. Sandell returned to work at Taylor-Listug in late 2004. During the remainder of Sandell's employment at Taylor-Listug, he required a cane to walk, and his speech was noticeably slower than it had been prior to his stroke. Taylor-Listug's chief executive officer terminated Sandell's employment in late 2007, a few days after Sandell's 60th birthday, citing displeasure with Sandell's performance as vice president of sales.

The trial court concluded that there were no triable issues of fact with respect to Sandell's discrimination claims, and granted summary judgment in favor of Taylor-Listug. Having reviewed the record presented on summary judgment, we conclude that Sandell presented evidence sufficient to establish a prima facie case of disability and age discrimination, and in response to Taylor-Listug's proffer of legitimate nondiscriminatory reasons for terminating his employment, Sandell presented sufficient evidence to raise a triable issue of fact as to whether the motivation for his termination was discriminatory. We therefore reverse the judgment of the trial court and remand the matter for further proceedings.


A. Factual Background*fn1

Taylor-Listug, also known as Taylor Guitars, is a manufacturer and wholesaler of acoustic guitars. Kurt Listug, one of the founders of Taylor-Listug, is chief executive officer of the company. Another founder, Robert Taylor, serves as the company's president.

Listug met Sandell at the National Association of Music Manufacturers' convention in January 2004. Sandell had 30 years experience in the music business. After inviting Sandell to interview at Taylor-Listug, Listug hired Sandell as senior vice-president of sales at the company. Sandell reported directly to Listug.

Listug hired Sandell, at least in part, because Sandell had experience with territory management, a practice that Taylor-Listug wanted to implement. As Listug explained, "Territory management... is tools for being able to set quotas by territory, region, town, et cetera. It has to do with looking at the buying power, you know, throughout the country and overlaying your sales targets over that, coming up with sales targets for your salespeople. [¶] [P]rior to [Sandell], none of us - none of the people in sales had any experience with that."

Sandell started working at Taylor-Listug as in February 2004. In June 2004, Listug began a six-month sabbatical from his work at the company.

In August 2004, Sandell received a chiropractic adjustment from a chiropractor who was a friend of Taylor's, and with whom the company contracted to treat its employees. The following day, Sandell began to feel ill. Sandell's health continued to deteriorate throughout that day, and he eventually went to the hospital. A neurologist diagnosed Sandell as having suffered a stroke. According to Sandell, the neurologist said that she had seen other patients who had suffered a similar type of stroke after receiving chiropractic adjustments.

Sandell remained in the hospital for several weeks after the stroke, and then recuperated at home for several more weeks. Sandell returned to work on a part-time basis in October 2004. He was working full time by December 2004.

After the stroke, Sandell had difficulty with his balance and strength, and also had difficulty talking. Because of his balance problems, Sandell needed a cane to walk when he returned to work. His speech was also noticeably slower than it had been prior to the stroke.

Sandell testified in his deposition that not long after he returned to work, "[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 also said that Listug questioned Sandell's use of a cane, suggesting that Sandell was using the cane to create sympathy or to get attention: "[Listug] called me to his office after one of our regular or routine sales meetings, and he asked me when I was going to get rid of the cane and when I was going to drop the dramatization." Listug also told Sandell that he wanted Sandell to "be more of a cheerleader type of personality in the sales department." Sandell testified that this is not what Listug had told Sandell when Sandell started his job at Taylor-Listug, but rather that Listug's desire for more of a "cheerleader type" had apparently developed sometime later.

The parties disagree as to the meaning of the data pertaining to Taylor-Listug's guitar sales during Sandell's tenure as vice-president of sales. However, it is undisputed that in 2004 - a year during which both Sandell and Listug spent significant periods of time not working - sales of Taylor-Listug guitars decreased for the first time in 20 years. Taylor-Listug's total sales increased in 2005, may have decreased in 2006, and increased again in 2007.*fn2 Taylor-Listug cites various statistics related to these numbers to argue that Sandell's sales management was ineffective. Sandell responds by noting that during his years at Taylor-Listug, the company's market share increased in a number of key markets, and that although the company did not see overwhelming sales growth during that period, the market for guitars, in general, suffered. Sandell presented evidence that, according to data from the Guitar Accessories Marketing Association, sales growth in the guitar market slowed dramatically from 2004 to 2005, and decreased significantly in both 2006 and 2007. Sandell argues that when viewed in the context of a slowing overall market, Taylor-Listug's sales numbers were actually quite good.

Sandell also presented evidence that he introduced new practices to the Taylor-Listug sales department, such as analyzing each sales area's buying power index in order to determine how many sales the company should expect from a particular sales area. Other practices that Sandell initiated at Taylor-Listug included regular territory reviews with each area's account manager; a new incentive program for sales staff to encourage growth; a "minimum advertised price" policy, pursuant to which dealers would not be permitted to advertise Taylor-Listug products below a certain price set by Taylor-Listug; and increased travel expectations of sales staff pursuant to which sales personnel would visit the dealers in person for approximately two weeks per month, rather than relying on telephone contact, as had been the practice prior to Sandell's arrival.

During his employment at Taylor-Listug, Sandell received three annual reviews ─ one in 2004, another in 2005, and a third in 2006. The Taylor-Listug performance review document includes 13 sections, or areas for review. For each of the first eight areas of review, the document asks the employee to rate himself in that area by marking a box next to "Must Improve," "Meets Requirements," and/or "Exceeds Requirements." Under these boxes, the form provides space for the employee to provide written comments to explain his or her self-evaluation. Under the employee's comments for each section, the supervisor is asked to rate the employee on the same scale, and to provide comments explaining the rating given. The final five sections ─ "Strengths," "Weaknesses," "Challenges to overcome (how can I do a better job and provide more value)," "Goals for next period," and "Overall Comments," ─ do not ask for a rating, but, rather, simply provide space for written comments by both the employee and the supervisor.

Sandell's written evaluation for 2004 indicated that Sandell was meeting or exceeding requirements in all of the areas in which he was reviewed, with the exception of one area entitled "Results." In that area, Listug noted "Must Improve." However, in his comments under this section, Listug indicated that he felt he "[had] to say" that because sales had declined that year, for the first time in 20 years. Listug also took some of the blame for the poor sales by noting that Sandell had come into a sales department that was "in some turmoil" after the departure of the previous vice-president of sales. Lustig indicated in his comments that Sandell had already introduced helpful new approaches for the sales department.

Sandell's 2005 review indicated that Sandell was meeting requirements across the board, and that he was exceeding requirements in some areas. However, in the written comments associated with some of the areas of review, Listug indicated some subjective concerns. For example, Listug said that while he agreed with Sandell's self-evaluation regarding his "Attitude," Listug "sure would like to see more enthusiasm from Robert." Listug added, "He frequently seems bored, or he at least comes across that way. It would be nice if Robert were more outgoing and friendly."

In 2006, Listug rated Sandell's performance as meeting requirements in three areas. In three other areas, Listug rated Sandell's performance as needing improvement. For the final two areas of review, Listug marked both the "Must Improve" and "Meets Requirements" boxes. Listug also gave Sandell both positive and negative reviews on other subjective criteria. For example, under the area entitled "Teamwork," Listug states, "Robert has a stable good attitude. He usually has good constructive feedback or input. He's easy to work with, and doesn't politic. In this sense, he's earned the trust of others. However, he does not provide enough leadership or drive to have the level of respect he should for the position he has."

Under the portion of the review sheet where Listug was to identify Sandell's "Weaknesses," Listug wrote, "Robert does not have the drive that this position requires.... Maybe he's never had to actually lead sales in other companies he's worked for, or inspire people to perform at a higher level, or put the fear of God in them if they don't. But he does not put anywhere near the amount of passion, life, energy or drive into leading sales." Under "Goals for next period," Listug indicated that he wanted Sandell to "[l]ead and manage [his] staff with [his] emotion and personality, and with inspiration and life." Below that, however, in the "Overall Comments" section, Listug wrote, "Robert's a good man, and he's contributed positively to the company. He's provided stability to the sales area that was lacking. The sales staff like interacting with him, and respect his opinion and his experience. He's generally on top of what is happening in sales."

Sandell turned 60 years old in October 2007. A few days later, on October 31, 2007, Taylor-Listug terminated Sandell's employment. Listug made the decision to fire Sandell. According to Listug, his "primary frustration with Sandell was his lack of leadership in providing direction to the sales team and in producing satisfactory sales results."

B. Procedural Background

Sandell filed a complaint against Taylor-Listug on May 29, 2008. In his complaint, Sandell alleged two causes of action under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) -- disability discrimination and age discrimination.

On February 20, 2009, Taylor-Listug filed a motion for summary judgment. After full briefing on the motion, on May 7, 2009, the trial court issued a tentative ruling granting Taylor-Listug's motion in full. The court held a hearing on May 8, and after hearing oral argument on the motion, adopted its tentative order as the final order of the court.

The court entered judgment in favor of Taylor-Listug on May 20, 2009. Counsel for Taylor-Listug filed a notice of entry of judgment on May 29. Sandell filed a timely notice of appeal on July 9, 2009.


A. Legal Standards

1. Standards Applicable to Discrimination Claims

"Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) California has adopted the three-stage burden-shifting test for discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz, supra, 24 Cal.4th at pp. 354-356.) "This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." (Guz, supra, 24 Cal.4th at p. 354; see also Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317 ["In most cases, the complainant will be unable to produce direct evidence of the ...

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