Cornell v. Berkeley Tennis Club

Facts

The California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) makes it unlawful to discriminate against, harass, or refuse to reasonably accommodate an employee “on the basis of … physical disability.” (Gov. Code, § 12940, subds. (a), (j)(1), (m)(1); Cornell, supra, 18 Cal.App.5th at pp. 925–927.) The statutory definition of “physical disability” reaches a “physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss” that affects a listed bodily system and “[l]imits a major life activity.” (Gov. Code, § 12926, subd. (m)(1); Cornell, at p. 927.) Under controlling Supreme Court authority, weight qualifies as a protected disability only if “medical evidence demonstrates that it results from a physiological condition.” (Cornell, at p. 928, discussing Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050.)

Ketryn Cornell worked at the Berkeley Tennis Club for over 15 years, beginning in 1997 as a lifeguard and pool manager and eventually serving as a night manager, day manager, and tennis-court washer. (Cornell, supra, 18 Cal.App.5th at pp. 919–920.) She “consistently received positive reviews, merit bonuses, and raises.” (Id. at p. 920.) Cornell has been obese since childhood; as of May 2012 she was five feet five inches tall, weighed over 350 pounds, carried a body mass index over 50, and had been diagnosed as severely obese, with her weight interfering with bathing, walking, and using transportation. (Id. at p. 919.)

After Rigoberto Headley became general manager in spring 2012, friction developed. When Cornell warned that a staff uniform “might be an issue” because she shopped at specialty stores “due to [her] size,” Headley “laugh[ed] and in a mocking tone” replied, “‘Oh yeah, that’s right,’” and later asked her “out of the blue” whether she was considering weight-loss surgery. (Cornell, supra, 18 Cal.App.5th at p. 919.) Cornell repeatedly told Headley she wore a women’s size 5X to 7X, yet the largest uniform shirt ordered for her was a 2X — five sizes too small — leaving her “humiliated.” (Id. at pp. 919–920.) She ultimately bought and embroidered her own shirts at her own expense. (Id. at p. 920.) Cornell also lost day-manager coverage and hours, was denied a bookkeeping opportunity, and was paid less than a newly hired, “‘small, very petite and thin’” employee; the tennis director understood Headley’s remark “‘just look at her, she’s going to be jealous of anybody’” as a reference to Cornell’s size. (Id. at pp. 920–921.)

The termination arose from a separate incident. At a May 21, 2013 Board meeting, Headley discovered a recording device in a portable bar near the Board’s table. (Cornell, supra, 18 Cal.App.5th at p. 922.) After the meeting, Miller — hidden on the stage — watched Cornell return, reach into the bar, and leave. (Id. at pp. 922–923.) Cornell admitted looking inside but said she was searching for cleaning supplies customarily kept there and denied planting any recorder. (Id. at p. 923.) The Club fired her the next day. (Ibid.) After Cornell’s attorney sent a letter and her father forwarded it to Club members, Gurganus and Miller told members that Cornell had been “caught trying to tape the Board meeting” and had committed a crime or felony — though the Club conceded such conduct was a misdemeanor at most. (Id. at p. 924 & fn. 3.)

Procedural history

Cornell sued in May 2014, asserting (among dismissed Labor Code claims) eight causes of action: FEHA disability discrimination/failure to accommodate; FEHA disability harassment; FEHA retaliation; three claims for wrongful discharge in violation of public policy keyed to each FEHA theory; intentional infliction of emotional distress; and defamation. (Cornell, supra, 18 Cal.App.5th at p. 924.) The trial court granted the Club’s motion for summary adjudication of all eight claims, ruling chiefly that Cornell “ha[d] not presented medical evidence sufficient to create a triable issue of material fact as to whether she is disabled under the FEHA.” (Id. at pp. 924, 927.) After the remaining claims were dismissed, the court entered judgment for the Club in December 2015, and Cornell appealed. (Id. at p. 924.)

Issue

The central question was whether the Club, as the party moving for summary adjudication, carried its initial burden of showing that Cornell could not establish that her severe obesity has a physiological cause — the predicate for treating obesity as a FEHA “physical disability.” (Cornell, supra, 18 Cal.App.5th at pp. 925–926.) Subsidiary issues included whether the harassment claim survived on a severe-or-pervasive theory; whether the Club had a duty to accommodate an obesity it did not know to be physiologically caused; whether a pre-2015 accommodation request was protected activity for retaliation purposes; and whether the litigation and common-interest privileges defeated the defamation claim. (Id. at pp. 925, 940–942, 945–951.)

Holding

Reasoning

The burden-shifting framework does not relieve the moving employer of its initial burden. The court began from Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826: a defendant moving for summary adjudication must either “conclusively negate[]” an element or “show[] that the plaintiff does not possess, and cannot reasonably obtain,” necessary evidence. (Cornell, supra, 18 Cal.App.5th at pp. 924–925.) The McDonnell Douglas framework “was designed to apply to liability determinations at trial, not at the summary adjudication stage,” and so it “does not affect the procedural rule … that imposes on a defendant the initial burden.” (Id. at p. 926.) The court also reaffirmed that “many employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper.” (Id. at p. 925.)

Obesity is a FEHA disability only with a physiological cause — but a genetic cause counts. Cornell conceded that Cassista “remains the controlling authority,” requiring proof that her obesity “has a physiological cause.” (Cornell, supra, 18 Cal.App.5th at p. 928.) Surveying federal law under the ADA — which California courts consult for guidance — the court observed that the 2008 ADA Amendments Act and the EEOC’s removal of the “‘[e]xcept in rare circumstances, obesity is not … a disabling impairment’” language “suggest an easing of the burdens associated with satisfying the requirement.” (Id. at pp. 928–929.) The court rejected the Club’s argument that a genetic cause was irrelevant because Cornell pleaded disability, not “medical condition.” Nothing makes medical-condition discrimination “the exclusive remedy for discrimination based on a disability with a genetic component”; the question is whether a genetic cause is a “physiological cause,” and “‘[p]hysiological’ means ‘relating to the functioning of living organisms,’” a term that “encompasses genetics.” (Id. at p. 932.)

The Club’s three evidentiary sources did not negate the disability element. The Club offered no expert evidence that Cornell’s obesity lacked a physiological cause, so the court asked only whether the Club showed she could not obtain such evidence — analogizing to asbestos-exposure cases like Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433. (Cornell, supra, 18 Cal.App.5th at pp. 930–931.) Cornell’s deposition naming three doctors who told her the obesity was genetic, and the absence of genetic testing, did not “permit the inferences that she could not be tested or would obtain negative results.” (Id. at p. 932.) Dr. Pierre’s testimony that she diagnosed obesity by body mass index alone and never assessed cause did not establish Cornell “cannot prove such a cause exists,” especially with two undeposed doctors still in the picture. (Id. at pp. 932–933.) And Cornell’s interrogatory answers were not “factually devoid” under Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, because the Club “never expressly asked about such a cause” and could have propounded a follow-up or moved to compel. (Id. at pp. 933–935.)

Discriminatory-termination theory survives; failure-to-accommodate does not. Cornell conceded the Club articulated a legitimate reason — that she planted the recorder — but raised a triable issue of pretext: there was evidence Gurganus and Miller knew she had a legitimate reason to reach into the bar, and the “‘failure to interview witnesses for potentially exculpatory information evidences pretext.’” (Cornell, supra, 18 Cal.App.5th at pp. 935–936.) Evidence that Headley “harbored a discriminatory animus” and “participated in the decision to terminate her” supplied the required link, because “‘showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference.’” (Id. at pp. 936–937.) The court discounted the same-actor inference, which “has lost some of its persuasive appeal in recent years.” (Id. at p. 937.) But the failure-to-accommodate theory failed: borrowing from Cassista’s perceived-disability reasoning, the court held that “where a plaintiff claims that his or her obesity is an actual disability, an employer must be aware that the obesity has an underlying physiological cause to have a duty to provide a reasonable accommodation,” and Cornell did not dispute the Club’s unawareness. (Id. at p. 939.)

Harassment: comments alone fall short, but combined with official actions they create a triable issue. Four weight-related comments “over several months” — the mocking uniform remark, the weight-loss-surgery question, and two food comments — were neither severe nor pervasive standing alone. (Cornell, supra, 18 Cal.App.5th at pp. 940–941.) Drawing on Roby v. McKesson Corp. (2009) 47 Cal.4th 686, however, the court reasoned that “‘some official employment actions … can also have a secondary effect of communicating a hostile message.’” (Cornell, at p. 941.) Headley’s ordering of shirts that were “significantly too small,” his report that Cornell was resisting the uniform policy, the pay disparity, and the denial of hours and openings “can be interpreted as enforcing the negative weight-based message his comments conveyed.” (Ibid.) Though “a close call,” the combination raised a triable issue. (Ibid.)

Retaliation fails on timing; IIED fails on outrageousness; defamation revives. The pre-2015 accommodation request was not protected activity under Rope v. Auto-Chlor System, and the 2015 amendment adding section 12940, subdivision (m)(2) “changed, not clarified, existing law” and operates prospectively under Moore v. Regents. (Cornell, supra, 18 Cal.App.5th at pp. 942–944.) Cornell forfeited her alternative pay-complaint theory by not raising it below. (Id. at p. 944.) The IIED claim failed because neither the comments nor the personnel actions amounted to “‘outrageous conduct beyond the bounds of human decency.’” (Id. at pp. 945–946.) On defamation, the litigation privilege did not apply — whether the Club itself contemplated litigation in good faith was an unmet factual showing — and because a triable issue existed as to whether Gurganus and Miller actually believed Cornell planted the recorder, there was a triable issue of actual malice defeating the common-interest privilege. (Id. at pp. 946–951.)

Significance

Cornell is the most-cited modern California authority on obesity as a FEHA disability, and its practical force lies less in the abstract physiological-cause rule than in who must prove what, and when. By insisting that a moving employer affirmatively establish the absence — or unobtainability — of physiological-cause evidence, the decision makes summary adjudication of obesity-based disability claims difficult to win on a thin record. (Cornell, supra, 18 Cal.App.5th at pp. 930–935.) The court’s confirmation that a genetic cause is a physiological cause forecloses a recurring defense argument that genetic obesity belongs only to the “medical condition” track. (Id. at p. 932.) Its signal that ADA developments have “eas[ed]” the proof burden invites plaintiffs to lean on federal liberalization. (Id. at pp. 928–929.) The harassment holding — that official personnel actions can reinforce a hostile message under Roby — gives practitioners a template for converting discrete decisions into a harassment narrative. (Id. at p. 941.) And the defamation analysis is a useful reminder that an employer threatened with litigation cannot freely repeat accusations to its community under cover of privilege. (Id. at pp. 946–951.)

Key quotes

“[W]eight may qualify as a protected ‘handicap’ or ‘disability’ within the meaning of the FEHA if medical evidence demonstrates that it results from a physiological condition affecting one or more of the basic bodily systems and limits a major life activity.” (Cornell, supra, 18 Cal.App.5th at p. 928.)

“Rather, the pertinent question is whether a genetic cause qualifies as a ‘physiological cause.’ ‘Physiological’ means ‘relating to the functioning of living organisms.’ … This term encompasses genetics.” (Id. at p. 932.)

“Many of Headley’s official actions can be interpreted as enforcing the negative weight-based message his comments conveyed.” (Id. at p. 941.)

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Practice pointer

Open questions

The court reserved several issues. It did not decide whether Cornell’s obesity in fact has a physiological cause, nor whether the trial court erred in excluding Dr. Fitzgerald’s expert declaration. (Cornell, supra, 18 Cal.App.5th at pp. 929–930.) It declined to decide whether obesity with a genetic cause could qualify as a protected “medical condition,” since Cornell did not assert that theory. (Id. at pp. 931–932.) It did not address whether Cornell was required to plead a physiological cause. (Id. at p. 929.) On accommodation, it left open whether the Club could owe a duty based on regarding Cornell as disabled, because she relied only on an actual-disability theory. (Id. at p. 939 & fn. 12.) And on defamation, it did not address whether a triable issue of actual malice existed as to the statements characterizing the alleged taping as a felony, because Cornell’s malice showing focused only on the planting accusation. (Id. at p. 951.)