18 Cal. App. 5th 908
Cal. Ct. App. 5th2017Background
- Ketryn Cornell, a severely obese long‑time employee of Berkeley Tennis Club, was terminated after 15+ years; Club argued she planted a recording device at a Board meeting.
- Cornell sued: FEHA claims (disability discrimination, failure to accommodate, harassment, retaliation), three related wrongful‑discharge claims, intentional infliction of emotional distress (IIED), and defamation.
- Club won summary adjudication on all eight claims; plaintiff appealed.
- Central factual/legal disputes: whether Cornell’s obesity is a "physical disability" under FEHA (requiring a physiological cause per Cassista), whether Club’s actions were pretextual/harassing/retaliatory, and whether statements about the recorder were privileged or malicious.
- At summary judgment the Club did not submit expert evidence disproving a physiological cause; plaintiff offered a physician declaration saying her obesity likely has a genetic/metabolic basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether obesity qualifies as a "physical disability" under FEHA (physiological‑cause requirement) | Cornell: Cassista controls but post‑ADAAA developments ease proof and she offered medical declaration; Club failed to negate physiological cause | Club: Cornell presented no admissible medical proof; no physiological cause shown | Court: Cassista remains controlling; Club failed to meet initial summary‑adjudication burden to show Cornell cannot prove a physiological cause — discrimination and harassment claims reinstated as to actual disability element |
| Failure to accommodate (FEHA) | Cornell: Club knew of her obesity and thus had duty to accommodate | Club: Employer lacked notice that obesity had a physiological cause; no duty to accommodate | Court: Club had no obligation to accommodate absent employer notice of physiological cause; summary adjudication of failure‑to‑accommodate claim affirmed |
| Disability harassment (FEHA) | Cornell: Headley’s comments, uniform conduct, pay/hours reductions and other acts produced severe/pervasive hostile work environment | Club: Remarks isolated/not severe; actions legitimate | Court: Viewing evidence in plaintiff’s favor, harassment claim sufficiently raises triable issue (comments + employment actions); summary adjudication reversed |
| Disability discrimination (termination) — pretext | Cornell: Club’s stated reason (recorder/planting) was pretext; Headley’s animus and weak investigation support inference of discrimination | Club: Legitimate nondiscriminatory reason (planted recorder) | Court: Club articulated reason; plaintiff produced enough circumstantial evidence (possible pretext + Headley’s animus/participation) to create triable issue — discrimination claim reinstated |
| Retaliation for requesting accommodation/complaints (FEHA) | Cornell: Her accommodation requests and complaints were protected and led to adverse actions | Club: Requests are not protected (per Rope pre‑2015); no causal retaliation shown | Court: 2015 statutory amendment protecting accommodation requests is prospective; Rope controlled pre‑2015 law; plaintiff forfeited other retaliation theories — summary adjudication of retaliation claim affirmed |
| Defamation / privileges | Cornell: Club members were told she planted a recorder (and committed a crime); statements false and defamatory | Club: Statements protected by litigation privilege (Tsai demand letter) and common‑interest privilege; at minimum no malice | Court: Litigation privilege not shown (fact issue whether Club contemplated litigation in good faith); common‑interest privilege applies only if no actual malice — triable issue exists whether speakers actually believed she planted the device, so defamation claim reinstated |
| IIED | Cornell: Conduct (comments + termination) caused severe emotional distress | Club: Conduct did not meet the "extreme and outrageous" standard | Court: Personnel decisions and the conduct here are insufficient as matter of law to sustain IIED — summary adjudication of IIED affirmed |
Key Cases Cited
- Cassista v. Community Foods, Inc., 5 Cal.4th 1050 (Cal. 1993) (weight may be a FEHA disability only if medical evidence shows a physiological/systemic basis limiting major life activities)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (Cal. 2001) (defendant moving for summary adjudication must negate an element or show plaintiff cannot reasonably obtain evidence supporting it)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden‑shifting framework for discrimination claims)
- Guz v. Bechtel Natl., Inc., 24 Cal.4th 317 (Cal. 2000) (McDonnell Douglas framework in California employment law; direct and circumstantial evidence standards)
- Edwards v. Centex Real Estate Corp., 53 Cal.App.4th 15 (Cal. Ct. App. 1997) (limits on applying litigation privilege to prelitigation communications)
- Taus v. Loftus, 40 Cal.4th 683 (Cal. 2007) (qualified/common‑interest privilege and actual malice standard in defamation)
- Roby v. McKesson Corp., 47 Cal.4th 686 (Cal. 2009) (distinguishing discriminatory employment actions from hostile‑work‑environment harassment)