Cornell v. Berkeley Tennis Club

• Decision Date: 21 December 2017
• Docket Number: A147516
• Court: California Court of Appeals Court of Appeals
• Parties: Ketryn CORNELL, Plaintiff and Appellant, v. BERKELEY TENNIS CLUB, Defendant and Respondent.

18 Cal.App.5th 908

227 Cal.Rptr.3d 286

Ketryn CORNELL, Plaintiff and Appellant,

v.BERKELEY TENNIS CLUB, Defendant and Respondent.

A147516

Court of Appeal, First District, Division 1, California.

Filed December 21, 2017

Barbara A. Lawless, Charles D. Yu, Emily Stehr McGrath, Lawless and Lawless, San Francisco for Plaintiff and Appellant

Kathleen M. Ewins, Shane M. Cahill, Long & Levit LLP, San Francisco for Defendant and Respondent

Humes, P.J.Plaintiff Ketryn Cornell is a severely obese woman who was fired from the Berkeley Tennis Club after having worked there for over 15 years. She brought eight claims against the Club: three under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq. ), for disability discrimination and failure to accommodate her disability (the discrimination/failure to accommodate claim), disability harassment, and retaliation; three for wrongful discharge in violation of public policy, based on her three FEHA claims; one for intentional infliction of emotional distress; and one for defamation. She appeals from a final judgment entered after the trial court granted the Club's motion for summary adjudication of all eight claims.¹

We affirm in part and reverse in part. Under the law governing motions for summary adjudication, the Club had the initial burden to produce evidence that Cornell cannot establish at least one element of each claim. The Club failed to sustain this burden on the claims requiring Cornell to show that her obesity

has a physiological cause. We therefore conclude that the trial court improperly granted summary adjudication of the FEHA claims alleging that the Club discriminated against and harassed Cornell and the claim alleging that the Club terminated her in violation of public policy based on the FEHA discrimination claim. We also conclude, however, that the court properly granted summary adjudication of the FEHA claims alleging that the Club failed to accommodate Cornell's disability and retaliated against her and the claims alleging that the Club terminated her in violation of public policy based on the FEHA harassment and retaliation claims. Finally, we conclude that the court properly granted summary adjudication of the claim alleging that the Club intentionally inflicted emotional distress on Cornell but that a triable issue of material fact remains on the claim alleging that she was defamed.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A. Cornell's Employment at the Club.

Cornell has been obese since childhood and, as of May 2012, she was five feet, five inches tall and weighed over 350 pounds. Her body mass index is over 50, and she has been diagnosed as severely obese. Her weight interferes with several daily life functions, including bathing, walking, and using transportation. She cannot stand for more than an hour, cannot walk more than a mile at a time, and often experiences significant shortness of breath from engaging in basic activities.

The Club is member-owned and governed by a Board of Directors. It employs a general manager who oversees a small staff. At the time of most of the events giving rise to this case, Rigoberto Headley was the Club's general manager, Bruce Gurganus was the president of the Board and head of its Personnel Committee, and William Miller was the immediate past president and a member of the Board. Cornell's father is a longtime member of the Club.

Cornell began working part-time for the Club as a lifeguard and pool manager in 1997, while she was a college student at UC Berkeley. She eventually became a night manager and continued to work at the Club after graduating from college in 2001, reporting to the Club's general manager. In 2011, she took on additional duties and began working about 40 hours a week as a night manager, day manager, and tennis court washer. She consistently received positive reviews, merit bonuses, and raises throughout this period.

B. Cornell's Complaints After Headley Became General Manager.

1. The Club's uniform policy.

Headley became the general manager of the Club in the spring of 2012. He told Cornell that "he wanted to change the image of the Club" and, in particular, wanted to require staff members to wear uniforms. That May, Cornell told Headley that finding a uniform that would fit her "might be an issue" because she normally shopped for clothes at specialty stores "due to [her] size." According to Cornell, Headley's "response was to laugh and in a mocking tone reply, ‘Oh yeah, that's right.’ " He later asked her "out of the blue" if she was thinking about having weight-loss surgery.

In mid-November 2012, Headley e-mailed Cornell to ask for her shirt size because he was ordering polo shirts for the staff uniforms. Cornell responded that she wore a women's size 5X to 7X, and she claims that she repeated this information to him "on at least a half dozen occasions."

At the end of December 2012, Headley notified the staff that the uniform shirts were available and required to be worn whenever a staff member was on a shift at the front desk. When Cornell went to pick up her shirts, the largest size available was 2X. The shirts did not fit her, and she felt "humiliated." She sought help from the Club's merchandising assistant, who told her that the shirts did not come in her size. At a Personnel Committee meeting the following March, Headley reported that all the staff had begun wearing the uniforms except for Cornell, who "continue[d] to resist this change and ha[d] not been cooperative."

Although Cornell was initially reluctant to bring up the issue with Headley, she wrote an e-mail to him later that March explaining that she could not wear the shirts he had ordered because they were five sizes too small. She expressed her desire to wear a uniform shirt and her hope that he could "understand [her] special needs/disabilities and help in being accommodating." Headley responded that he would "work on providing an appropriate uniform shirt" because she was required to wear one, and he again asked her to provide her shirt size. It is unclear whether he attempted to find her a properly sized shirt: later that spring, without telling Headley, Cornell ordered shirts from a specialty shop at her own expense and had them embroidered with the Club logo.

2. Cornell's hours, pay, and duties.

Before Headley was hired, Cornell had routinely acted as the day manager whenever the general manager and assistant general manager were out. After Headley was hired, Cornell asked him to continue to let her cover as the day manager when the position was available, but Headley often refused, assigning less experienced employees to fill the role and leaving her with fewer hours of work. Her scheduled hours, however, remained the same.

At the suggestion of the Club's retiring bookkeeper, Cornell offered to learn the Club's bookkeeping system, but Headley refused. In mid-November 2012, Cornell learned that the bookkeeping position had been offered to someone else. She believed "this was another incidence of discrimination" because she was denied the opportunity to apply for the position even though Headley knew she was interested in it, and the woman who was hired was "not obese." Headley claimed that he had directed Cornell to submit something in writing to indicate her interest, but she never did so, and he and the Board's Finance Committee hired an outside contractor with over 13 years of bookkeeping experience.

Soon afterward, Headley also hired Kristen Kayser, a college student whom Cornell characterized as "a small, very petite and thin woman," to work some night shifts. Cornell's hours were immediately reduced. In January 2013, while meeting with Headley to discuss her annual evaluation, Cornell complained that she was being discriminated against because Kayser was being paid $15 per hour, about a dollar more per hour for the same night duties. According to Cornell, Headley responded that he had hired Kayser "because [Kayser] was ‘a good fit.’ "²

After Cornell spoke to Headley about the pay disparity, Lynne Rolley, the Club's tennis director, saw Cornell crying, and Cornell explained that she was upset Kayser was being paid more. Rolley approached Headley, who said that Cornell was "going to be very jealous of anybody else that works here." According to Rolley, when she told Headley she could understand why Cornell was upset about making less money, Headley responded, "[W]ell, just look at her, she's going to be jealous of anybody and she just isn't a good fit and I'm going to have to look for someone else." Rolley understood Headley to be referring to Cornell's size when he said "just look at her." After his conversation with Rolley, Headley offered to increase Cornell's night-shift pay rate to $16.50 per hour. Cornell responded that the raise was insufficient and that she felt she was being treated unfairly, but the raise eventually went into effect.

Later in January, Cornell wrote an e-mail to the Personnel Committee stating that it was unfair that she was being paid about $14 per hour at night as a 15-year employee and Kayser was being paid $15 per hour as a new employee. Cornell also requested that she be paid at a single rate of at least $20.50 per hour, which was in line with her pay rate for day shifts, and expressed her willingness to assume additional responsibilities. Gurganus responded, noting that the Personnel Committee had "discussed some of [her] issues" and directing her to talk to Headley, who "will refer any issues to the committee as he feels the need to do so."

A few days later, Cornell spoke to Gurganus in person and asked whether he knew that Kayser was being paid more than she was. He told Cornell "that he did not want to hear anything more about this issue." The following day, Cornell responded to his e-mail and explained that she had approached the Personnel Committee because her "direct supervisors" had told her "to file a grievance regarding these issues" and she had hoped the Committee "could...