LOUISVILLE, Ky. (WDRB) -- By the time she was nine years old, Melissa Pennington weighed 200 pounds.

She had reached
425 pounds by 2007 -- on a five-foot-four frame -- when she claims she was fired from the iconic Wagner's Pharmacy near Churchill Downs because of her weight.

In a lawsuit filed that year, Pennington claimed it is unlawful to discriminate against an employee due to a disability. Her disability? Morbid obesity.

Seven years later, the Kentucky Supreme Court has agreed to hear Pennington's case, which attorneys say is the first of its kind in the state.

"This issue has not been decided in Kentucky," said Jacqueline Schroering, an attorney for Pennington. The question, Schroering said, is "if her condition is protected."

A Jefferson Circuit Court judge did not believe so and dismissed the case in 2011, ruling that obesity was not a state-protected disability because it is not caused by a "physiological condition" and that Pennington presented no proof of an "underlying physiological order."

Last year, however, the state Appeals Court overruled the lower court, pointing out that Pennington has suffered from morbid obesity most of her life and highlighted a deposition in the case in which
a doctor testified that "morbid obesity" like Pennington's is caused by "unknown physiological abnormalities."

Wagner's appealed and, on Thursday, the Supreme Court agreed to hear the case and presumably decide if obesity should be considered a disability in Kentucky.

In a similar case, West Virginia's Supreme Court ruled last year that obesity is not a disability in a discrimination lawsuit filed by a 540-pound blackjack dealer, adding the man presented no evidence that his weight was limiting his daily activities.

The Supreme Court said the West Virginia Human Rights Act doesn't give specific protection to the obese and the casino made reasonable accommodations for the dealer, according to media reports.

Wagner's has claimed that Pennington was fired for failing to generate sales as their food truck operator on the backside of Churchill Downs. But her supervisor testified she was told to dismiss Pennington because of her "personal appearance," according to court records. 
Two employees claimed they were told by the supervisor that Pennington was fired because she was "overweight and dirty."

While it is easy to fire employees in Kentucky – for their clothes, personal hygiene or piercings, for example – a person cannot be terminated because of a disability.

The American Medical Association has officially recognized obesity as a disease, but that classification has no legal authority. A person is considered morbidly obese when he or she weighs at least 100 pounds more than the normal weight of a person their size.

The appeals court found that Pennington was never told what aspect of her "personal appearance" led to her termination after a decade of employment.

Pennington believed she was fired after coming in on an off-day to pick up a check and was "not at her best appearance," according to court records.

She had been moving, had dark circles under her eyes as a result of diabetes and could have been perceived as being "dirty," the appeals court wrote.

And Pennington also had sleep apnea and diabetes stemming from her weight, making it difficult for her to care for herself. Schroering said she believes Pennington now lives in Virginia.

Philip Kimball, another attorney for Pennington, said an expert gave testimony that she was unable to control her weight gain.

"He  was unequivocal, there was nothing she could do," he said. 

An attorney representing Wagner's did not immediately return a phone message.

A call to the owner of Wagner's Pharmacy was also not immediately returned.

Wagner's has been a South End landmark on S. Fourth Street for decades, popular especially around the Kentucky Derby attracting a mix of customers such as horse owners, trainers and celebrities.

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