On May 14, 2015, the Kentucky Supreme Court issued a ruling in Wagner’s Pharmacy, Inc. v. Melissa K. Pennington. Pennington had filed the lawsuit back in 2007, alleging that her employer, Wagner’s Pharmacy, discriminated against her by terminating her employment due to her morbid obesity. At the time of filing the lawsuit, Pennington weighed 425 pounds. She is just 5’4” tall.
Wagner’s cited Pennington’s poor personal appearance and declining sales as the reasons behind Pennington’s termination – not Pennington’s weight. Prior to her termination, Pennington had operated a food and drink concession truck owned by Wagner’s at Churchill Downs. She had been employed by Wagner’s for approximately ten years.
In support of her discrimination lawsuit, Pennington relied on the expert testimony of Dr. Gaar, a board-certified surgeon who had performed nearly 2,000 gastric bypass surgeries. Dr. Gaar testified in detail as to the causes of morbid obesity, stating that while the exact cause is unknown, several genetic, neural-humeral, and environmental factors might be to blame. Notably, Dr. Gaar did not testify that Plaintiff’s morbid obesity had a psychological cause.
Wagner’s filed a summary judgment motion, arguing that Pennington’s medical expert had failed to establish a psychological cause for her obesity. This is an important fact because Kentucky’s Civil Rights Act is modeled after federal law, and the federal guidelines suggest that “obesity is rarely considered a disabling impairment” unless it is shown to be the result of a psychological disorder. The trial court agreed with Wagner’s that Pennington’s case should be dismissed, as her medical expert had not established a cause for her obesity. The Court of Appeals reversed, however, finding that Pennington had set forth a prima facie case of disability discrimination.
On appeal, the Kentucky Supreme Court granted discretionary review to consider whether a physician’s testimony about the cause of morbid obesity in general – not specific to the plaintiff – is sufficient to establish a prima facie case of disability discrimination under the Kentucky Civil Rights Act. The Court concluded that it is not. According to the Court, absent a psychological cause for her morbid obesity, Pennington could not prevail. Indeed, under Kentucky law, obesity cannot be the basis for a disability discrimination claim unless it is proven to be the result of a psychological disorder. Unfortunately for Pennington, Dr. Gaar’s generic testimony about morbid obesity did not satisfy this standard.