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Pennington v. Wagner's Pharmacy, Inc.

Court of Appeals of Kentucky

July 12, 2013



BRIEF FOR APPELLANT: Philip C. Kimball Louisville, Kentucky

BRIEF FOR APPELLEE: Brian E. Clare Louisville, Kentucky




Melissa Pennington appeals the order of the Jefferson Circuit Court which granted summary judgment to Wagner's Pharmacy, Inc. After our review of the record, the facts, and the pertinent laws, we vacate the order and remand.

Pennington worked for Wagner's as a food truck operator in the backside area of Churchill Downs for approximately ten years. She was approximately five feet four inches in height and weighed four hundred twenty-five pounds. She also suffered from diabetes, which caused her to have pronounced dark circles under her eyes. On one of her off-duty days in 2007, Pennington went to the office of Brenda Smyth, manager of Wagner's, to pick up her paycheck. She was in the process of moving from one residence to another, and, as she admitted, she was not at her best appearance. However, she testified that she never went to work looking as she did that day, calling it "an anomaly."

Soon after, on April 26, 2007, Smyth asked Pennington's supervisor, Martha Parrish, to terminate Pennington due to her "personal appearance." Parrish did not testify that Smyth specified what was meant by "personal appearance" -- whether it was Pennington's disheveled appearance on one occasion (when she was off duty) or whether it was Pennington's morbid obesity. However, two of Pennington's coworkers submitted affidavits stating that Parrish "tearfully" told them that Smyth said that Pennington was fired because she was "overweight and dirty."

On June 7, 2007, Pennington filed a lawsuit alleging that Wagner's had unlawfully discriminated against her due to her disability of morbid obesity. In its answer, Wagner's alleged that it had dismissed Pennington because of her failure to generate sales. On June 3, 2011, Wagner's filed a motion for summary judgment, which the trial court granted on October 21, 2011. Pennington filed a motion to alter, amend, or vacate the order on October 31, 2011. The motion was denied, and this appeal follows.

Summary judgment is a device utilized by the courts to expedite litigation. Ross v. Powell, 206 S.W.3d 327, 330 (Ky. 2006). It is a "delicate matter" because it "takes the case away from the trier of fact before the evidence is actually heard." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). In Kentucky, the movant must prove that no genuine issue of material fact exists and "should not succeed unless his right to judgment is shown with such clarity that there is no room left for controversy." Id.

The trial court must view the evidence in favor of the non-moving party. City of Florence v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). In order to overcome a motion for summary judgment, the non-moving party must present "at least some affirmative evidence showing the existence of a genuine issue of material fact." Id. See also Kentucky Rules of Civil Procedure (CR) 56.03. On appeal, our standard of review is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Because summary judgments do not involve fact-finding, we review de novo. Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 188, 189 (Ky. App. 2006).

It is unlawful for an employer to discriminate against an employee due to a disability. Kentucky Revised Statutes (KRS) 344.040(1) and 207.150. The Kentucky statutes are fashioned after the Americans with Disabilities Act (ADA), and federal law is utilized in their interpretation. Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003).

In order to establish a discrimination claim, the plaintiff must prove a prima facie case by demonstrating:

(1)that he had a disability as that term is used under the statute (i.e., the Kentucky Civil Rights Act in this case);
(2)that he was "otherwise qualified" to perform the requirements of the job, with or without reasonable accommodation; and (3) that he suffered an adverse employment decision because of the disability.

Hallahan v. The Courier-Journal, 138 S.W.3d 699, 706 (Ky. App. 2004). In this case, the parties do not dispute that Pennington was qualified to perform her job. She had worked for Wagner's for ten years prior to her dismissal. There can be no dispute that the act of termination is the ultimately adverse employment decision. Therefore, the only issue remaining as to whether ...

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