Porter Ranch Employment Attorneys

Sandell v. Taylor-Listug, Inc., 188 Cal. App. 4th 297, 115 Cal. Rptr. 3d 453 (2010)

A former employee brought action against employer for disability and age discrimination under Fair Employment and Housing Act (FEHA). The Superior Court granted summary judgment for the employer. The employee appealed. The Court of Appeal, Aaron, J., held that: (1) the employee raised fact issue as to whether he was disabled; (2) the employee raised fact issue as whether performance issues proffered by employer were the real reasons for employee’s termination; (3) the employee made prima facie showing that he was performing satisfactorily; and (4) the employee made prima facie showing of circumstances giving rise to inference of unlawful discrimination. The Court explained its conclusion that Sandell presented evidence that he is “disabled” under FEHA as follows: “Under FEHA, a person is “physically disabled” when he or she has a physiological condition that “limits a major life activity.” (Govt.Code, § 12926, subd. (k)(1)(B), italics added.) “[A] qualifying disease or condition ‘limits a major life activity if it makes the achievement’ of the activity ‘difficult.’ [Citation.]” (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1027, 130 Cal.Rptr.2d 662, 63 P.3d 220, fn. omitted (Colmenares ).) “ ‘Limits’ shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself **465 limits a major life activity.” (Gov.Code, § 12926, subd. (k)(1)(B)(i).)  It is clear that walking is a major life activity under FEHA. (Cal.Code Regs., tit. 2, § 7293.6, subd. (e)(1)(A)(2)(a) [“ ‘Major Life Activities’ are functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” (Italics added.) ].) Sandell presented abundant evidence that his ability to walk after his stroke was impaired, and that from the time of his stroke to the time Taylor–Listug terminated his employment, he required a cane as an assistive device. Sandell thus presented sufficient evidence to demonstrate that he was limited in his ability to walk—a major life activity—and, therefore, that he suffered from a disability at the time his employment was terminated. Despite the fact that it is undisputed that Sandell required a cane to walk, Taylor–Listug nevertheless argues that Sandell failed to establish that he is disabled. We disagree. At a minimum, evidence that an individual requires a cane in order to walk is clearly sufficient to establish that a person is physically disabled under California law.  Taylor–Listug cites McDonald v. Coldwell Banker (9th Cir.2008) 543 F.3d 498, 505 fn. 6, (McDonald ), in support of its position that “while Sandell’s condition may have affected his gait, he was not disabled.” In dictum, the McDonald court stated: “It should be noted that McDonald, who asserts disability by virtue of her use of a walking cane, has not produced any evidence of being disabled within the meaning of the Unruh Act, which requires any ‘physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (A) [a]ffects one or more of the following body systems: neurological, immunological, musculoskeletal, … and (B) [l]imits a major life activity.’ See Cal. Gov.Code § 12926(k)(1)(A)–(B)…. The only evidence of disability presented by McDonald is that she uses a cane; this, alone, does not establish that a ‘major life activity’ has been limited. See 42 U.S.C. § 12102; see also Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 564–66, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999) (holding that to be ‘disabled’ under the Americans with Disability Act (‘ADA’) one must have ‘limitations that are in fact substantial’ and because every determination of whether an individual is disabled is ‘case-by-case,’ particularized evidence is needed).” (McDonald, supra, 543 F.3d at p. 505, fn. 6.) The McDonald court did not, in our view, properly interpret California law on the subject of the meaning of “disability” under FEHA. Although the McDonald court believed that it was applying the provisions of FEHA in rejecting a plaintiff’s use of a cane as evidencing a disability, that court incorrectly relied on federal legal standards in reaching this conclusion. As noted above, California law and federal law differ with respect to the standard for establishing a disability, in that federal law requires a showing of a “substantial limitation,” while FEHA requires only that the condition “limits” a major life activity. (Colmenares, supra, 29 Cal.4th at pp. 1025–1027, 1030, 130 Cal.Rptr.2d 662, 63 P.3d 220[“[A] physical disability under the FEHA does not require the federal test’s substantial limitation of a major life activity. [Citation.] … [T]he FEHA’s test [is] ‘limits,’ not substantial limits.”].) We therefore reject the McDonald court’s conclusion that evidence of the use of a cane by one asserting disability discrimination is necessarily insufficient to demonstrate that he or she suffers from a “disability” under California law. One 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, as defined under FEHA. In addition to evidence concerning Sandell’s need to use a cane, Sandell also presented evidence that his speech was impaired as a result of his stroke. Speaking, like walking, is deemed to be a major life activity under California law. (Cal.Code Regs., tit. 2, § 7293.6, subd. (e)(1)(A)(2)(a).) Taylor–Listug’s only response to Sandell’s evidence regarding his impaired speech is its contention that “[e]ven though Sandell may have spoken with a more deliberate pace, his condition did not limit his ability to speak.” However, the evidence is clearly sufficient for a fact finder to conclude that Sandell’s stroke caused him to have difficulty speaking, and that he was thus limited in this major life activity, as well.