THE CASE OF THE GUITAR MAN

Based on Sandell v.Taylor-Listug, Inc. (2010) 188 Cal.App.4^th 297

[It is Wednesday, January 2, 2008.Kurt Listug, CEO and co-founder of Taylor Guitars, an El Cajon-based manufacturer and wholesaler of acoustic guitars, has gathered the leaders of his sales staff.]

Kurt: I hope everyone had a restful holiday break and is ready for a productive 2008.I called this meeting to discuss with you the changes in our sales operation, which I will be heading until we can bring someone on permanently to do the job.First, let me say how proud I am of how far this company has come since we opened in October of 1975.Our first shop was so bad.I still remember how the roof leaked like crazy, and whenever it rained, the place flooded. It rained hard the night before we opened, so we spent the entire morning of our first day in business trying to get as much water out of there as we could. Look at us today.Our guitars have been played by numerous great artists, including Aerosmith, Dave Matthews, Taylor Smith, Mick Jagger, and Sonic Youth.And our guitars are even in the hands of such prominent people as Bill Clinton, Carson Daly, and Shannen Doherty.Those of you in this room are a big part of the success we enjoy today.But something wasn't working at the top.That is why last Halloween I made the decision to fire Robert Sandell who had been with us as vice-president of sales since February of 2004 when I personally made the decision to hire him. (Tom Watters raises his hand.)Yes, Tom.

Tom:As a regional sales manager, I worked with Robert.Could you tell us how he came to Taylor Guitars in the first place before telling us about why you decided to fire him?

Kurt:Sure, Tom.I met Robert Sandell at the National Association of Music Manufacturers' convention in January of '04.Robert had 30 years of experience in the music business so I invited him to interview with us.I hired him the following month because he brought experience with territory management, which I wanted to bring to Taylor Guitars.Establishing territory management has allowed the company to set sales quotas by territory, region, town, etc.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.Prior to Robert, none of the people in sales had any experience with that.Too bad about that stroke.

Tom:Sure was.For those of you who are newer to the company, six months after joining the company, Robert Sandell suffered a stroke shortly after receiving a chiropractic adjustment from a chiropractor who was a friend of our other co-founder Robert Taylor and with whom the company contracted to treat employees.The neurologist told Robert Sandell that some of her other patients had suffered a similar stroke after receiving chiropractic adjustments.Robert remained in the hospital for several weeks and then recuperated at home for several more weeks.He returned to work part-time in October 2004.He returned to work full time in December 2004.Robert was never quite the same after that stroke, though.

Kurt:He sure wasn't.From that point on, Robert had difficulty with his balance and strength and also had difficulty talking.Robert needed a cane to walk when he returned to work.His speech also was noticeably slower than it had been before that.Well, this was just not the man I hired.Not long after Robert returned to work, I went to his office, closed the door, and told him that if he did not make a full recovery, the company had the right to fire him or demote him and reduce his salary.I also wasn't buying that he needed a cane.I'm convinced he was using that thing just to get sympathy.I remember calling him into my office after a sales meeting and asking him when he was going to get rid of the cane and drop the dramatization.Didn't have any impact on him.Over the rest of Robert's time with us, more often than not when I saw him he was using a cane. But while Robert's condition may have affected the way he walked, it wasn't like he was disabled in any way.As for his speech, while Robert spoke with a more deliberate pace after the stroke, his condition did not limit his ability to speak.There were performance issues with Robert as well.I'm going to ask our director of human resources Shaun Paluczak to address those issues.Shaun?

Shaun:Right, chief.There were indications right from Robert's first year that his sales management was ineffective.In 2004 -- when admittedly he was out from August until he returned to work full-time in December -- sales of our guitars decreased for the first time in more than 20 years.

Kurt:That's why I rated Robert "must improve" on the "Results" section of his performance evaluation that year.Now, Robert had accomplished positive results in other areas such as gaining people's trust, not changing things that were working, and in setting very helpful territory quotas and establishing other sales practices.But I couldn't in all honesty say the sales results for that year "met requirements."In fairness, though, Robert came into a difficult situation, with the former vice-president of sales having just been terminated, and the sales department in turmoil.But in the next couple of years, things really didn't get that much better under Robert.

Shaun:No, they mostly didn't.Total sales increased in 2005, decreased in 2006, and increased again in 2007.Robert's pointed to industry reports indicating that sales growth in the guitar market slowed dramatically from 2004 to 2005 and decreased dramatically in both 2006 and 2007.He argued that when viewed in the context of a slowing overall market, Taylor Guitar's sales numbers were actually quite good.

Kurt:But not good enough for Taylor.I also had some problems with his attitude, which I noted on his reviews, even while generally giving him satisfactory ratings.For example, in 2005 I wrote that I "sure would like to see more enthusiasm from Robert.He frequently seems bored, or at least comes across that way.It would be nice if Robert were more outgoing and friendly."While you never shared these thoughts with Shaun or me while Robert was here, some of the regional managers in this room recently have alerted me to other problems with Robert's performance.Tom, why don't you tell the group what you told me a couple of weeks ago about what you thought of Robert's leadership?

Tom:Right, Kurt.I would characterize Robert's leadership of the sales team as non-existent.He provided little guidance to me as a regional sales manager and did not appear to have a business plan or any defined sales strategy.Robert also was sometimes not very responsive to the emails or phone messages.I know fellow regional manager Diane Magagna agrees with me on this, don't you Diane?

Diane:Yes, I do, Tom.We were all aware that Robert didn't answer emails sometimes, and that was just Robert.Like you, though, I never brought this up with either Kurt or with Robert Taylor.

Kurt:David Hager is another regional sales manager who didn't think much of Robert Sandell as VP of sales.Dave, go ahead and share you thoughts.

David:In my opinion, Sandell was not a leader.He was not a driving force, but more of a data analyst.In talking to other employees, I discovered that this was a common opinion shared by many people who worked on Sandell's sales team.Everyone in sales seemed to be frustrated with Sandell's lack of leadership.

Kurt:Why didn't you ever come to me or even Shaun with your concerns, David?

David:Well, Kurt, you know I regularly sent you my ideas and strategies and thoughts about sales.I wouldn't necessarily speak negatively of someone else.

Richard:Dammit, I'm a regional sales manager, too, and I have kept quiet while you all have beaten up on Robert.His efforts were remarkable given the effect the stroke had on him.Although Robert's speech improved over time, all the way up to the time his employment was terminated he spoke more slowly than he had previously.I also want to talk about everything he did to make us a better sales team.

Kurt:Go ahead, Richard.

Richard:Let's start with the fact that Robert made all of the salespeople get out there and see our customers more often and get into the stores two weeks out of the month.He also put in place a buying power index.At the weekly sales meetings he led, Robert was always offering new ideas and encouraging others to offer their ideas.I never had any complaints about Robert's performance.In fact, I can recall only two individuals who worked in sales whom I ever heard complain about Robert and one of them was you, David.

David:What about how he ignored our emails and phone messages, Richard?

Richard:What about it?Robert may not have been the quickest at email, but he always had an open-door policy.He always told his sales managers that they could come and talk to him in person if they needed something.If Robert didn't respond promptly to something I needed to know quickly, it usually was because Robert had been in a meeting or doing something else.The idea that he was just blowing us off is ridiculous.I can't help but feel that Robert's termination was somehow tied to the effects of his stroke.

Kurt:Now that is ridiculous, Richard.As far as I was concerned, he wasn't disabled.Using a cane or speaking more slowly than usual doesn't make you disabled.If there was something else going on, I wasn't aware of it.Robert even told me that no stroke-related medical issues kept him from doing his job, that he took no medicine, and that he was able to perform his work at normal capacity once he returned to work full time in December 2004, nearly three years before he was fired.Anyway, remember that I was the one who both made the decision to bring Robert Sandell on and made the decision that he had to go.I'm confident we made the right call for the right reason:poor performance.

Richard:But what if Robert challenges that decision in court?It doesn't help things that you fired him a few days after he celebrated his 60^th birthday.We'd all better hope for the good of the company that, if Robert does sue, a judge and jury end up reading off the same music as you are.

whats the legal question?

do you agree with the worker or the company? why? explain.