High court rules obesity is not protected disability in case inv - WDRB 41 Louisville News

High court rules obesity is not protected disability in case involving iconic Churchill Downs area eatery

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LOUISVILLE, Ky. (WDRB) -- The Kentucky Supreme Court has ruled that morbid obesity is not a state protected disability, likely ending a historic case of an employee saying she was fired by the iconic Wagner's Pharmacy near Churchill Downs because of her weight.

The case involves Melissa Pennington, who weighed 200 pounds by the time she was nine and reached 425 pounds – on a five-foot-four frame – when she claims she was fired from Wagner's because of her weight in 2007.

The state Supreme Court agreed to hear the case after it wound its way through the lower courts, with a Jefferson Circuit Court judge first dismissing 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."

But in 2013, 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."

The Kentucky Supreme Court ruled last week that the doctor's testimony did not prove Pennington's obesity was the result of a physiological disorder; the doctor also didn't find any medical condition which caused her to weigh more than 400 pounds.

“Pennington has not met her burden of showing that morbid obesity is a physical impairment,” the high court ruled, in siding with the circuit court judge who dismissed the case.

Also, the Supreme Court ruled that it could not find that Pennington's obesity limited her major life activities.

Attorney Phillip Kimball, an attorney for Pennington, said he will ask the high court to hear the case again, arguing justices ignored the Pennington's best argument.

Regardless of whether Pennington was disabled, Kimball said, Wagner's believed her weight was a disability and fired her because of it.

"They (the Supreme Court) just ignored that claim," he said.

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."

In a similar case in 2013, West Virginia's Supreme Court also ruled 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.

That 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.

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 has said she believes Pennington now lives in Virginia.

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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