Cornell v. Berkeley Tennis Club, 2017 WL 6524707 (Cal. Ct. App. 2017)

Ketryn Cornell is a severely obese woman (BMI > 50) who was fired from her job as a manager and tennis court washer for the Berkeley Tennis Club. Following her termination, she sued the Club for disability discrimination, failure to accommodate her disability, disability harassment, retaliation, wrongful discharge in violation of public policy, intentional infliction of emotional distress and defamation. The trial court granted summary judgment in favor of the Club, but the Court of Appeal reversed in part, holding that Cornell’s disability discrimination and harassment claims must be reinstated because her obesity may have a physiological cause. The Court further held that the legitimate nondiscriminatory business reason for the termination that the Club offered (Cornell had planted a tape recorder in an attempt to surreptitiously record a meeting of the board of directors) may have been pretext for her termination, which may in fact have been motivated by discriminatory animus against Cornell. The Court also reversed dismissal of the claims for disability harassment (based on evidence of a “negative weight-based message” by one of her supervisors); defamation (evidence of possible actual malice); and one of the three wrongful termination claims. However, the Court affirmed dismissal of the claims for failure to accommodate a disability (no evidence that the Club was aware that Cornell’s obesity had an underlying physiological cause); retaliation (the 2015 amendment to FEHA making a request for an accommodation protected activity is inapplicable); and intentional infliction of emotional distress (no extreme and outrageous misbehavior).

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.