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Kentucky Court Allows Discrimination Suit to Go Forward
September 12, 2013
A woman established that her morbid obesity constituted a disability pursuant to Kentucky law, the state’s appellate court recently ruled, allowing her discrimination suit to continue.
Melissa Pennington was fired after 10 years working as a Wagner’s Pharmacy food truck operator. On one of her days off, she stopped by the office to pick up her paycheck, and as the court noted, “she was not at her best appearance,” being in the process of moving. Soon after, the manager who gave her the paycheck instructed Pennington’s supervisor to terminate her due to “personal appearance.” Pennington submitted affidavits from coworkers that the manager said her firing was due to being “overweight and dirty.”
Pennington filed suit alleging unlawful discrimination based on her disability of morbid obesity. A trial court granted Wagner’s motion for summary judgment, relying on the employer’s assertion that Pennington was fired for low sales.
But the unanimous appellate court reversed. Kentucky’s discrimination statute tracks the Americans with Disabilities Act, the court said, looking to the federal statute for guidance. As the parties did not dispute that Pennington was qualified to perform her job or that her termination constituted an adverse employment action, the court focused on just one requirement of the plaintiff’s prima facie case: whether or not she was disabled according to statute.
Based upon the deposition of a doctor familiar with morbid obesity submitted by Pennington, the court said her obesity met the statutory definition of disability because it was caused by an underlying physiological condition. The exact cause varies from patient to patient, but the doctor “reiterated that ‘morbid obesity like [Pennington’s] is caused by a cluster of often unknown physiological abnormalities and that morbid obesity like hers is in itself an abnormal physical condition or disease.’ ”
This testimony was sufficient to find that Pennington’s condition had an underlying physiological cause, the panel said.
The plaintiff’s impairment has resulted in diabetes and sleep apnea, affecting multiple body systems. Sleep apnea is a condition causing difficulty breathing during sleep, and there “is no dispute that breathing is a major life activity,” the court said. In addition, “caring for oneself” is also a major life activity, which the plaintiff’s doctor testified “is difficult for patients with morbid obesity. He also said that a simple activity such as tying one’s shoes is complicated and difficult due to the condition.”
Concluding that Pennington had sufficiently set forth a prima facie case of discrimination, the court said Wagner’s had also failed to provide a nondiscriminatory reason for her termination.
Although the supervisor was instructed to fire Pennington based upon her “personal appearance,” the court said this was a “nonspecific reason…just as likely to be discriminatory as nondiscriminatory.”
“In this case, the record does not reflect that Pennington was ever given any reason concerning what aspect of her personal appearance was the basis of her dismissal at the time of her termination,” the court wrote. “Throughout her ten years of employment, Wagner’s had never complained about her performance or asked her to change anything about her appearance. It is reasonable to take judicial notice of the fact that morbid obesity is very likely the most obvious and noteworthy aspect of one’s physical appearance.”
A resolution of the issue was “wholly within the purview of a jury,” the court concluded.
To read the decision in Pennington v. Wagner’s Pharmacy, go to www.manatt.com/uploadedFiles/Content/4_News_and_Events/Newsletters/EmploymentLaw@manatt/Pennington-v-Wagner%27s%20Pharmacy.pdf (PDF 14 pages)
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