Sandell v Taylor-Listug Once Again Establishes that if it Smells like Disability or Age Discrimination, the Case should go to a Jury

I am not sure why this happens over and over again, but for some reason some trial courts keep believing that if they would vote for the employer if they were sitting as jurors, they should grant summary judgment to the employer and deny the employees their day in court. Sandell v Taylor-Listug (California Court of Appeals No. D055549, September 7, 2010) demonstrates that we are lucky to have an appellate court system to reverse this type of action.

Sandell involved a garden variety age and disability discrimination case in which the company claimed it did not discriminate, but there was plenty of evidence by which a fact finder or jury could side with the employee and find that there was discrimination. Besides the timing that Mr. Sandell was fired after returning from a leave of absence due to a stroke and right after his 60th birthday, there was evidence that the employer simply was not pleased with Mr. Sandell’s disability. The record included statements by Sandell that his boss told him, “that if I don’t make a full recovery, that the company has the right to fire me” and that this same boss chastised him with, “when I was going to get rid of the cane and when I was going to drop this dramatization.” It also noted that these types of comments were certainly evidence of discrimination, and were not “stray comments” to be disregarded by the court.

The Court of Appeals reinstated the case and stated the obvious, “The evidence is in conflict, and it is not up to the court to weigh conflicting evidence or to assess the credibility of witnesses.”

In addition, the Court rejected the company’s rather weak attempts to rebuff the claims on other grounds. It rejected the employer’s assertion that the employee wasn’t disabled under the Fair Employment and Housing Act, finding that Mr. Stendall’s use of a cane was evidence enough that his life activity of walking was limited. It likewise rejected the employer’s attempt to bootstrap its one-sided evidence that the employee wasn’t doing his job into proof that the employee wasn’t qualified to hold the job and therefore couldn’t make out a prima facie case of discrimination. The Court noted that all an employee had to do to meet this requirement was prove “some basic level of competence”. Further, it rejected the defendant’s attempt to suggest that it couldn’t have engaged in age discrimination based on the “same actor inference” where the same supervisor hired and fired the employee. The Court of Appeals noted that five years and a stroke intervened between the hiring and firing, and strongly opined that an “inference” is simply an “inference” and not something by which a court should grant summary judgment.

Thank goodness that this ruling was made in a court of law, where it went up on appeal and was reviewed and reversed! If Mr. Stendell had been forced to sign an arbitration agreement and the arbitrator had made the same clearly erroneous ruling as the trial court judge did in this case, he would have been out of luck!

Jody LeWitter
Siegel & LeWitter

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