Pensinger v. Bowsmith, Inc.

• Decision Date: 05 January 1998
• Docket Number: No. F026185,F026185
• Citation: 60 Cal.App.4th 709,70 Cal.Rptr.2d 531
• Court: California Court of Appeals Court of Appeals
• Parties: , 7 A.D. Cases 1154, 11 NDLR P 251, 98 Cal. Daily Op. Serv. 140, 98 Daily Journal D.A.R. 151 Edward J. PENSINGER, Jr., Plaintiff and Appellant, v. BOWSMITH, INC. et al., Defendants and Respondents.

Page 531

70 Cal.Rptr.2d 531

60 Cal.App.4th 709, 7 A.D. Cases 1154, 11 NDLR P 251,

98 Cal. Daily Op. Serv. 140,

98 Daily Journal D.A.R. 151

Edward J. PENSINGER, Jr., Plaintiff and Appellant, v. BOWSMITH, INC. et al., Defendants and Respondents.

No. F026185.

Court of Appeal, Fifth District, California.

Jan. 5, 1998.

Certified for Partial Publication. ^*

[60 Cal.App.4th 712] Ganong & Kleier and Philip W. Ganong, Bakersfield, for Plaintiff and Appellant.

Littler, Mendelson, Fastiff, Tichy & Mathiason, Michael J. Hogan and Deborah L. Martin, Fresno, for Defendants and Respondents.

OPINION

WISEMAN, Associate Justice.

In this case, we review an order dismissing a case following a grant of a motion for summary judgment. In doing so, we address the meaning of the term "mental disability" as defined under Government Code section 12940, the Fair Employment and Housing Act (FEHA). For some reason, the Legislature imposed a requirement that a physical disability must limit a major life activity without imposing the same requirement for a mental disability. Although we question the wisdom of making it harder for a person who has suffered a physical disability to come within the FEHA than a person suffering a mental disability, we do not substitute our judgment for that of the Legislature. Consequently, we conclude plaintiff (who suffers from a reading disorder) has raised a triable issue of fact regarding whether he suffered from a disability under the FEHA.

However, this finding does not end our inquiry since plaintiff must also show his employer had knowledge of his mental disability. The question then becomes: is it enough that an employer be aware of deficiencies in an employee's performance which are the result of a mental deficiency or must an employer have actual knowledge that the employee suffers from a specific mental disability? We conclude that in order to meet the knowledge requirement of the FEHA, an employer must have actual knowledge an employee suffers from a specific disability. In this case, plaintiff never told his employer he had a learning disability. Plaintiff's nonspecific complaints of "trouble" or "problems" with reading or writing coupled with his job performance difficulties are not sufficient to charge his employer with knowledge that he suffers from a mental disability as defined by the FEHA. As a result, we conclude the trial court properly granted the employer's motion for summary adjudication with respect to plaintiff's first cause of action for tortious termination.

In the unpublished portion of this opinion, we address the trial court's order granting the employer's motion for summary adjudication with respect to plaintiff's second (breach of implied-in-fact contract), third (breach of implied covenant of good faith and fair dealing) and fourth (breach of oral contract) causes of action. In doing so, we find the trial court erred, and reverse.

PROCEDURAL HISTORY

Edward J. Pensinger, Jr. (plaintiff) filed a complaint in the Superior Court of Tulare County against Bowsmith, Inc., Allan Smith, Davis Olney and Does 1 through 10 (Bowsmith). Plaintiff alleged four causes of action: (1) tortious termination in violation of public policy; (2) breach of implied contract; (3) breach of implied covenant of good faith and fair dealing; and (4) breach of oral contract. Bowsmith filed a demurrer to the complaint and plaintiff filed a first amended complaint which alleged five causes of action: the four originally pled and a fifth alleging intentional interference with prospective economic advantage. Bowsmith filed a cross-complaint alleging five causes of action: (1) misappropriation of trade secrets; (2) unfair business practice; (3) intentional interference with economic advantage; (4) trade libel; and (5) defamation.

Plaintiff subsequently requested dismissal without prejudice of Allan Smith and Dave Olney with respect to the interference claim, and Allan Smith with respect to the alter ego claim of the first amended complaint. The request was granted by the trial court. Bowsmith filed two motions for summary adjudication. The first was for summary adjudication of plaintiff's first cause of action alleging tortious termination in violation of public policy. The second was for summary adjudication of the second, third, and fourth causes of action. The two motions were heard together. The trial court granted both motions, and entered judgment pursuant to Code of Civil Procedure section 437c, subdivision (c). ¹ Plaintiff and Bowsmith stipulated to dismissal of plaintiff's fifth cause of action and Bowsmith's cross-complaint without prejudice.

Plaintiff filed a timely appeal raising six contentions: (1) there was a triable issue of fact concerning whether defendant was a disabled person within the meaning of the Fair Employment and Housing Act; (2) the trial court erred in finding there was no evidence Bowsmith was aware of plaintiff's disability; (3) there was a triable issue of fact concerning plaintiff's qualifications to continue doing his job; (4) the trial court erred in concluding there was no evidence Bowsmith's reasons for discharging plaintiff were pretextual; (5) the trial court erred in finding there was no evidence to rebut the presumption that plaintiff's employment was "at will;" and (6) the action for breach of an implied covenant of good faith and fair dealing survives because there was a contract for employment requiring good cause for termination.

FACTUAL HISTORY

Plaintiff attended school in Bakersfield. He claims he had great difficulty reading and writing throughout elementary school and that his parents hired tutors to assist him. Upon completion of eighth grade, there was a debate about whether he would be allowed to attend high school because of his reading problems and his poor performance on an examination. It was only after the test was given to him orally that plaintiff was allowed to attend high school. While in high school, plaintiff continued to have problems reading and writing and took a non-college preparatory curriculum of courses. Plaintiff graduated from high school and began to attend junior college. However, he was unable to keep up with the course work and discontinued the academic classes. He did continue to take vocational courses such as welding and mechanics, in the evening.

After high school, plaintiff held several jobs, including working as a welder and mechanic. He also worked as a distributor of irrigation equipment, selling, delivering, and installing the systems. The irrigation systems he sold included products produced by Bowsmith.

Plaintiff began working exclusively for Bowsmith in August 1982 as a sales representative. When he started work, he shared the responsibility for sale of Bowsmith products in California with a coworker, Darrell Willbanks. When Willbanks was terminated in 1984, plaintiff assumed responsibility for the entire sales territory of California. Plaintiff's supervisor from 1982 to 1985 was the Sales and Marketing Manager, Stan Hawkins. While Hawkins was his supervisor, plaintiff was required to make written "call reports." Plaintiff claims that because of his difficulty in reading and writing, Hawkins permitted him to provide the information for the call reports orally rather than in writing. After Hawkins left Bowsmith, Allan Smith, the company's chief executive officer, told plaintiff to report directly to him. Plaintiff claims he orally provided information directly to Smith or someone on the inside sales staff from the time Hawkins left until July 1993.

Plaintiff claims that from the time Hawkins left until approximately 1992, his relationship with Bowsmith was very good and he was given responsibility for additional sales territories in the Pacific Northwest. Plaintiff claims that during this period, Smith promised on more than one occasion, that plaintiff would have a job at Bowsmith for as long as he wished, so long as he "kept his nose clean." However, in 1992, plaintiff claims a dispute arose between Smith and him over whether plaintiff should be paid a commission for a sale he negotiated. Although Smith ultimately paid him the commission, plaintiff claims that Smith's attitude toward him changed from that point on. It was after this incident that Smith informed plaintiff he believed Bowsmith needed a sales and marketing manager.

Plaintiff did tell Smith he had a problem with reading and writing. However, plaintiff never said he was disabled and Smith claims he did not know the extent of plaintiff's problem. Smith claims it was not until 1992 or 1993, when he began to insist plaintiff submit written call reports, that he learned the extent of plaintiff's problem. However, Smith did provide plaintiff a tape recorder so he could dictate his reports and then have them transcribed by Smith's sister-in-law. Plaintiff claims he dictated two tapes and submitted them for transcription, but only saw the transcript of one of the tapes and it was unintelligible. Plaintiff claims he was never told what happened to the two tapes or their transcripts. He alleges Smith never provided him any feedback on the transcriptions or requested he continue to dictate the reports. However, in May 1993, Smith purportedly sent plaintiff a memorandum stating that plaintiff had submitted only one tape for transcription and then would not allow the transcription to be given to Smith. Plaintiff claims he never saw the memorandum.

Sometime in 1993, before Davis Olney was hired, Smith requested plaintiff have tests conducted to determine the extent of his reading and writing problem. Smith claims the purpose of the request was to determine what could be done to help plaintiff with his problem. Plaintiff states he was never told this was the purpose of the test and was first approached about being tested by Smith's attorney. Plaintiff claims this caused him to fear that the purpose of the testing was to provide a basis for...